Before an operator pays royalties, an attorney usually examines the county records and prepares a division order title opinion that sets out each owner's decimal interest and lists requirements, or defects, that must be resolved. An interest affected by an unsatisfied requirement, most commonly a deceased owner with no probate or heirship of record, is typically placed in suspense. Curing title means obtaining the exact requirement, preparing and recording the instrument that satisfies it, and delivering it to the operator.
What families should know
Behind every royalty check is a title opinion. When production begins, and again when ownership changes, the operator engages a title attorney to examine the chain of title to each tract in the well or unit. The resulting division order title opinion identifies the owners and their decimal interests, and lists requirements the attorney could not resolve from the record.
The operator then pays the owners whose title is clear and suspends the interests affected by open requirements. Families are often told only that their interest is "in suspense," without being told why. The single most productive step is to ask the operator, in writing, for the specific requirement affecting the interest, and then cure that requirement rather than guessing.
The most common requirements involve deaths without probate, name discrepancies, old liens that were never released, ambiguous deed reservations and conveyances referred to but never recorded.
The legal detail
Why suspension is lawful
Texas generally requires payors to pay royalties within fixed periods and to pay interest on late payments, but it permits withholding without interest when there is a title dispute, reasonable doubt about the payee's title, or "a requirement in a title opinion that places in issue the title, identity, or whereabouts of the payee and that has not been satisfied by the payee after a reasonable request for curative information" (Tex. Nat. Res. Code § 91.402(b)(1)(C)). A payee also has no common-law breach of contract claim for withholding under those provisions unless the contract specifies otherwise for title disputes (§ 91.402(b-1)). The curative burden therefore rests, practically, on the owner.
Common requirements and their cures
| Requirement | Typical curative instrument |
|---|---|
| Deceased owner without probate of record | Probated will or muniment of title, affidavit of heirship, or judgment declaring heirship, recorded in the county |
| Name variance (maiden name, initials, misspellings) | Affidavit of identity; certified marriage or divorce records |
| Old unreleased deed of trust or lien | Recorded release from the lienholder, or analysis of whether the lien is barred by limitations |
| Ambiguous reservation or fraction | Stipulation of interest signed and recorded by the affected owners, or a declaratory judgment |
| Missing link in the chain | Recording the original instrument, a correction instrument, or a confirmatory conveyance |
Heirship evidence and its limits
An affidavit of heirship that has been of record for five years or more in the county where the property lies, or where the decedent was domiciled, is prima facie evidence of the facts it states in later proceedings (Tex. Est. Code § 203.001). Before that, its acceptance is a matter of the examiner's judgment. When a family history is complicated, an heir is missing or the operator's examiner will not accept an affidavit, a judicial determination of heirship under Chapter 202 produces a binding judgment.
Ask the operator for the title requirement in writing. Fixing the exact requirement is much faster than guessing.
Stipulations of interest
When a deed's meaning is genuinely uncertain, as with many double-fraction reservations, owners sometimes resolve the question by signing a recorded stipulation agreeing how the interest is shared. Stipulations are efficient and often sensible, but they are binding agreements that can operate as conveyances. Each owner should understand what the stipulation concedes before signing, particularly in light of the Supreme Court of Texas's 2023 decision in Van Dyke v. Navigator Group, which changed the analysis of many older fractional reservations.
Curative process
Request the specific title requirement from the operator in writing, citing the owner number and property.
Prepare the curative instrument that answers that requirement.
Record it in the county where the tract lies.
Deliver recorded copies to the operator's division order department, referencing the requirement.
Sign the new division order and provide a W-9 so suspended funds can be released.
Frequently asked questions
Why won't the operator simply pay us?
Because paying the wrong person exposes it to paying twice. Texas law allows a payor to withhold proceeds without interest while a title requirement concerning the payee's title, identity or whereabouts remains unsatisfied after a reasonable request for curative information (Tex. Nat. Res. Code § 91.402(b)).
Can we see the title opinion?
Practice varies. Many operators will provide the requirement affecting your interest, and some will provide the relevant excerpt of the opinion. Ask in writing, referencing the owner number and property.
How long does curing title take?
It depends on the requirement. Recording an affidavit of identity or heirship can be done in weeks; a probate or determination of heirship typically takes months, and the operator's review adds more time.
Who pays to cure title?
Ordinarily the owners whose interests are suspended, since the curative work establishes their own title. Operators occasionally share costs where a defect affects many owners.
Should we sign a stipulation of interest?
Only after understanding it. A stipulation can resolve an ambiguous reservation efficiently, but it can also convey or concede an interest you might otherwise have been able to claim.
Think your family may be owed royalties?
We help Texas families find, prove and claim oil and gas royalties held by operators or the State. There is no cost to ask.
Schedule a Free ConsultationLaw Office of Todd Worrich · 1045 Cheever, Suite 208, San Antonio, Texas 78217
Keep reading
Official sources
About the author
Todd Worrich is a San Antonio native and Texas attorney. He earned his undergraduate degree from Texas A&M University, his law degree from St. Mary’s University School of Law and an LL.M. in Taxation from SMU Dedman School of Law, and he has been recognized multiple times by Texas Super Lawyers. His practice focuses on estate planning, probate and helping Texas families recover oil and gas royalties. More about Todd
This article is general information about Texas law, not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change, and results depend on the facts of each matter. Attorney responsible for this content: Todd Worrich, San Antonio, Texas.
