In re Estate of Abraham

          Appeal from Probate Court No. 1 of El Paso County, Texas (TC # 2014-CPR02054)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE

         Non-exempt community property that passes hands on the death of a spouse does so subject to the debts of that deceased spouse.^[1] Before the debts are all paid, however, the surviving spouse is accorded a statutory mechanism to obtain legal title to a portion of the community property in an estate by partitioning the property.^[2] To do so, however, the surviving spouse must post a bond sufficient to account for the community property being withdrawn from the estate and obtain court approval.^[3]

         In this case, Margaret Abraham, Appellant here, did not follow that statutory scheme. Rather, she executed a deed assigning her interest in community property land to a relative and did so with an effective date prior to the date of death. The estate representative filed a summary judgment to set aside that deed, which the probate court granted. Finding no error in that ruling, we affirm.

         FACTUAL BACKGROUND

         Joseph (Sib) Abraham, Jr., a noted El Paso trial lawyer, passed away on July 4, 2014. He was survived by his wife, Margret Abraham, a son, William D. Abraham, and several grandchildren. His will appointed his wife Margaret as Independent Executrix. She renounced that role, however, and the probate court appointed a granddaughter, Asia Zaragoza, as the Dependent Administrator of the estate. Later, Ms. Zaragoza stepped down, and the court appointed Albert Bloxom as the Successor Dependent Administrator. He is the Appellee here, and we refer to him as the Administrator. The will lists Margaret as the sole beneficiary, with Sib's grandchildren as alternate beneficiaries. William Abraham is not a beneficiary under the will. Multiple creditors filed notices of claims against the estate.

         This appeal focuses on one asset in Sib's estate. According to an assumption deed dated June 1, 1982, Sib Abraham acquired a parcel of land located at 415 E. 7th Street, in downtown Austin. The original assumption deed bears only Sib's name. However, Sib acquired that property while he was married to Margaret. Jointly filed tax returns and an estate inventory treat the parcel as community property, an assertion not challenged on appeal. In 2011, Sib pledged the property as security for a $497, 000 promissory note payable to GEM Real Estate Investments. That entity filed a claim in the probate proceeding for the outstanding balance owed on the note.

         On November 7, 2014 (four months after Sib's death), William Abraham recorded a different assumption warranty deed in Travis County that purported to transfer the 7th Street property from Sib to William. The deed reflected that Sib signed the instrument on January 7, 2013, some six months before his death. His signature was notarized by Texas notary, Jackie Brackett. That is where this story takes its first odd turn--Brackett later executed an affidavit stating in relevant part she notarized the deed after Sib died:

• Approximately three to four months after the death of Joseph 'SIB' Abraham, Jr., William 'Billy' Abraham called me at home and asked me to meet him . . . . At that time, Billy indicated that he finally found the deed to the Austin property and that he needed me to notarize it for him.

• The deed he presented was entitled Assumption Warranty Deed, . . . [and] already had what appeared to be the signature of Joseph 'SIB' Abraham, Jr. on the second page. The signature was dated January 7, 2013.

• At that time, I realized that my notary stamp was too new for the date on the Assumption Warranty Deed. Billy asked me to retrieve my old notary stamp from my house.

• I then notarized the Assumption Warranty Deed. Once I finished notarizing the Assumption Warranty Deed, Billy indicated that he was going to Austin to personally file it as soon as possible.

• Since his incarceration, Billy has sent me other documents, including deeds, for me to notarize. I did not feel comfortable notarizing those documents and gave them back to Charlene ...