Bill Text: TX HB2046 | 2011-2012 | 82nd Legislature | Comm Sub

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Bill Title: Relating to decedents' estates.

Sponsorship: Partisan Bill (Republican 1)

Status: (Introduced - Dead) 2011-04-28 - Comm. report sent to Local & Consent Calendar [HB2046 Detail]

Download: Texas-2011-HB2046-Comm_Sub.html

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82R23343 MTB-F
By: Hartnett H.B. No. 2046
Substitute the following for H.B. No. 2046:
By: Jackson C.S.H.B. No. 2046

A BILL TO BE ENTITLED
AN ACT
relating to decedents' estates.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CHANGES TO TEXAS PROBATE CODE
SECTION 1.01. Section 4D, Texas Probate Code, is amended by
adding Subsection (b-1) and amending Subsections (e) and (g) to
read as follows:
(b-1) If a judge of a county court requests the assignment
of a statutory probate court judge to hear a contested matter in a
probate proceeding on the judge's own motion or on the motion of a
party to the proceeding as provided by this section, the judge may
request that the statutory probate court judge be assigned to the
entire proceeding on the judge's own motion or on the motion of a
party.
(e) A statutory probate court judge assigned to a contested
matter in a probate proceeding or to the entire proceeding under
this section has the jurisdiction and authority granted to a
statutory probate court by this code. A statutory probate court
judge assigned to hear only the contested matter in a probate
proceeding shall, on [On] resolution of the [a contested] matter
[for which a statutory probate court judge is assigned under this
section], including any appeal of the matter, [the statutory
probate court judge shall] return the matter to the county court for
further proceedings not inconsistent with the orders of the
statutory probate court or court of appeals, as applicable. A
statutory probate court judge assigned to the entire probate
proceeding as provided by Subsection (b-1) of this section shall,
on resolution of the contested matter in the proceeding, including
any appeal of the matter, return the entire proceeding to the county
court for further proceedings not inconsistent with the orders of
the statutory probate court or court of appeals, as applicable.
(g) If only the contested matter in a probate proceeding is
assigned to a statutory probate court judge under this section, or
if the contested matter in a probate proceeding is transferred to a
district court under this section, the [The] county court shall
continue to exercise jurisdiction over the management of the
estate, other than a contested matter, until final disposition of
the contested matter is made in accordance with this section. Any
[After a contested matter is transferred to a district court, any]
matter related to a [the] probate proceeding in which a contested
matter is transferred to a district court may be brought in the
district court. The district court in which a matter related to the
[probate] proceeding is filed may, on its own motion or on the
motion of any party, find that the matter is not a contested matter
and transfer the matter to the county court with jurisdiction of the
management of the estate.
SECTION 1.02. Section 4H, Texas Probate Code, is amended to
read as follows:
Sec. 4H. CONCURRENT JURISDICTION WITH DISTRICT COURT. A
statutory probate court has concurrent jurisdiction with the
district court in:
(1) a personal injury, survival, or wrongful death
action by or against a person in the person's capacity as a personal
representative;
(2) an action by or against a trustee;
(3) an action involving an inter vivos trust,
testamentary trust, or charitable trust, including a charitable
trust as defined by Section 123.001, Property Code;
(4) an action involving a personal representative of
an estate in which each other party aligned with the personal
representative is not an interested person in that estate;
(5) an action against an agent or former agent under a
power of attorney arising out of the agent's performance of the
duties of an agent; and
(6) an action to determine the validity of a power of
attorney or to determine an agent's rights, powers, or duties under
a power of attorney.
SECTION 1.03. The heading to Section 5B, Texas Probate
Code, is amended to read as follows:
Sec. 5B. TRANSFER TO STATUTORY PROBATE COURT OF PROCEEDING
RELATED TO PROBATE PROCEEDING.
SECTION 1.04. Section 6, Texas Probate Code, is amended to
read as follows:
Sec. 6. VENUE: [FOR] PROBATE OF WILLS AND GRANTING OF
LETTERS TESTAMENTARY AND OF ADMINISTRATION [OF ESTATES OF
DECEDENTS]. Wills shall be admitted to probate, and letters
testamentary or of administration shall be granted:
(1) in [(a) In] the county where the decedent
[deceased] resided, if the decedent [he] had a domicile or fixed
place of residence in this State; [.]
(2) if [(b) If] the decedent [deceased] had no
domicile or fixed place of residence in this State but died in this
State, then either in the county where the decedent's [his]
principal estate [property] was at the time of the decedent's [his]
death, or in the county where the decedent [he] died; or [.]
(3) if the decedent [(c) If he] had no domicile or
fixed place of residence in this State, and died outside the limits
of this State:
(A) [, then] in any county in this State where the
decedent's [his] nearest of kin reside; or [.]
(B) [(d) But] if there are [he had] no kindred of
the decedent in this State, then in the county where the decedent's
[his] principal estate was situated at the time of the decedent's
[his] death.
[(e) In the county where the applicant resides, when
administration is for the purpose only of receiving funds or money
due to a deceased person or his estate from any governmental source
or agency; provided, that unless the mother or father or spouse or
adult child of the deceased is applicant, citation shall be served
personally on the living parents and spouses and adult children, if
any, of the deceased person, or upon those who are alive and whose
addresses are known to the applicant.]
SECTION 1.05. Chapter I, Texas Probate Code, is amended by
adding Sections 6A, 6B, 6C, and 6D to read as follows:
Sec. 6A. VENUE: ACTION RELATED TO PROBATE PROCEEDING IN
STATUTORY PROBATE COURT. Except as provided by Section 6B of this
code, venue for any cause of action related to a probate proceeding
pending in a statutory probate court is proper in the statutory
probate court in which the decedent's estate is pending.
Sec. 6B. VENUE: CERTAIN ACTIONS INVOLVING PERSONAL
REPRESENTATIVE. Notwithstanding any other provision of this
chapter, the proper venue for an action by or against a personal
representative for personal injury, death, or property damages is
determined under Section 15.007, Civil Practice and Remedies Code.
Sec. 6C. VENUE: HEIRSHIP PROCEEDINGS. (a) Venue for a
proceeding to determine a decedent's heirs is in:
(1) the court of the county in which a proceeding
admitting the decedent's will to probate or administering the
decedent's estate was most recently pending; or
(2) the court of the county in which venue would be
proper for commencement of an administration of the decedent's
estate under Section 6 of this code if:
(A) no will of the decedent has been admitted to
probate in this state and no administration of the decedent's
estate has been granted in this state; or
(B) the proceeding is commenced by the trustee of
a trust holding assets for the benefit of the decedent.
(b) Notwithstanding Subsection (a) of this section and
Section 6 of this code, if there is no administration pending of the
estate of a deceased ward who died intestate, venue for a proceeding
to determine the deceased ward's heirs is in the probate court in
which the guardianship proceedings with respect to the ward's
estate were pending on the date of the ward's death. A proceeding
described by this subsection may not be brought as part of the
guardianship proceedings with respect to the ward's estate, but
rather must be filed as a separate cause in which the court may
determine the heirs' respective shares and interests in the estate
as provided by the laws of this state.
Sec. 6D. VENUE: CERTAIN ACTIONS INVOLVING BREACH OF
FIDUCIARY DUTY. Notwithstanding any other provision of this
chapter, venue for a proceeding brought by the attorney general
alleging breach of a fiduciary duty by a charitable entity or a
fiduciary or managerial agent of a charitable trust is determined
under Section 123.005, Property Code.
SECTION 1.06. Chapter I, Texas Probate Code, is amended by
amending Section 8 and adding Sections 8A and 8B to read as follows:
Sec. 8. CONCURRENT VENUE IN PROBATE PROCEEDING [AND
TRANSFER OF PROCEEDINGS]. (a) Concurrent Venue. When two or more
courts have concurrent venue of [an estate or] a probate proceeding
[to declare heirship under Section 48(a) of this code], the court in
which the application for the [a] proceeding [in probate or
determination of heirship] is first filed shall have and retain
jurisdiction of the [estate or heirship] proceeding[, as
appropriate,] to the exclusion of the other court or courts. The
proceeding shall be deemed commenced by the filing of an
application averring facts sufficient to confer venue; and the
proceeding first legally commenced shall extend to all of the
property of the decedent or the decedent's estate. Provided,
however, that a bona fide purchaser of real property in reliance on
any such subsequent proceeding, without knowledge of its
invalidity, shall be protected in such purchase unless before the
purchase the decree admitting the will to probate, determining
heirship, or granting administration in the prior proceeding is
[shall be] recorded in the office of the county clerk of the county
in which such property is located.
(b) Probate Proceedings in More Than One County. If probate
proceedings involving the same estate are [a proceeding in probate
or to declare heirship under Section 48(a) of this code is]
commenced in more than one county, each [the] proceeding commenced
in a county other than the county in which a proceeding was first
commenced is [shall be] stayed [except in the county where first
commenced] until final determination of venue by the court in the
county where first commenced. If the proper venue is finally
determined to be in another county, the clerk, after making and
retaining a true copy of the entire file in the case, shall transmit
the original file to the proper county, and the proceeding shall
thereupon be had in the proper county in the same manner as if the
proceeding had originally been instituted therein.
(c) Jurisdiction to Determine Venue. Subject to
Subsections (a) and (b) of this section, a court in which an
application for a probate proceeding is filed has jurisdiction to
determine venue for the proceeding and for any matter related to the
proceeding. A court's determination under this subsection is not
subject to collateral attack.
Sec. 8A. TRANSFER OF VENUE IN PROBATE PROCEEDING [Transfer
of Proceeding]. (a) [(1)] Transfer for Want of Venue. If it
appears to the court at any time before the final decree in a
probate proceeding that the proceeding was commenced in a court
which did not have priority of venue over such proceeding, the court
shall, on the application of any interested person, transfer the
proceeding to the proper county by transmitting to the proper court
in such county the original file in such case, together with
certified copies of all entries in the judge's probate docket
theretofore made, and the proceeding [probate of the will,
determination of heirship, or administration of the estate] in such
county shall be completed in the same manner as if the proceeding
had originally been instituted therein; but, if the question as to
priority of venue is not raised before final decree in the
proceedings is announced, the finality of such decree shall not be
affected by any error in venue.
(b) [(2)] Transfer for Convenience [of the Estate]. If it
appears to the court at any time before a probate proceeding [the
estate is closed or, if there is no administration of the estate,
when the proceeding in probate or to declare heirship] is concluded
that it would be in the best interest of the estate or, if there is
no administration of the estate, that it would be in the best
interest of the heirs or beneficiaries of the decedent's will, the
court, in its discretion, may order the proceeding transferred to
the proper court in any other county in this State. The clerk of the
court from which the proceeding is transferred shall transmit to
the court to which the proceeding is transferred the original file
in the proceeding and a certified copy of the index.
Sec. 8B. VALIDATION OF PRIOR PROCEEDINGS [(d) Validation of
Prior Proceedings]. When a probate proceeding is transferred to
another county under any provision of [this] Section 8 or 8A of this
Code, all orders entered in connection with the proceeding shall be
valid and shall be recognized in the second court, provided such
orders were made and entered in conformance with the procedure
prescribed by this Code.
[(e) Jurisdiction to Determine Venue. Any court in which
there has been filed an application for a proceeding in probate or
determination of heirship shall have full jurisdiction to determine
the venue of the proceeding in probate or heirship proceeding, and
of any proceeding relating thereto, and its determination shall not
be subject to collateral attack.]
SECTION 1.07. Section 15, Texas Probate Code, is amended to
read as follows:
Sec. 15. CASE FILES. The county clerk shall maintain a case
file for each decedent's estate in which a probate proceeding has
been filed. The case file must contain all orders, judgments, and
proceedings of the court and any other probate filing with the
court, including all:
(1) applications for the probate of wills and for the
granting of administration;
(2) citations and notices, whether published or
posted, with the returns thereon;
(3) wills and the testimony upon which the same are
admitted to probate, provided that the substance only of
depositions shall be recorded;
(4) bonds and official oaths;
(5) inventories, appraisements, and lists of claims;
(5-a) affidavits in lieu of inventories, appraisements,
and lists of claims;
(6) exhibits and accounts;
(7) reports of hiring, renting, or sale;
(8) applications for sale or partition of real estate
and reports of sale and of commissioners of partition;
(9) applications for authority to execute leases for
mineral development, or for pooling or unitization of lands,
royalty, or other interest in minerals, or to lend or invest money;
and
(10) reports of lending or investing money.
SECTION 1.08. Section 37A, Texas Probate Code, is amended
by amending Subsections (h) and (i) and adding Subsections (h-1)
and (p) to read as follows:
(h) Time for Filing of Disclaimer. Unless the beneficiary
is a charitable organization or governmental agency of the state, a
written memorandum of disclaimer disclaiming a present interest
shall be filed not later than nine months after the death of the
decedent and a written memorandum of disclaimer disclaiming a
future interest may be filed not later than nine months after the
event determining that the taker of the property or interest is
finally ascertained and his interest is indefeasibly vested. If
the beneficiary is a charitable organization or a governmental
agency of the state, a written memorandum of disclaimer disclaiming
a present or future interest shall be filed not later than the later
of:
(1) the first anniversary of the date the beneficiary
receives the notice required by Section 128A of this code;[,] or
(2) the expiration of the six-month period following
the date the personal representative files:
(A) the inventory, appraisement, and list of
claims due or owing to the estate; or
(B) the affidavit in lieu of the inventory,
appraisement, and list of claims[, whichever occurs later].
(h-1) Filing of Disclaimer. The written memorandum of
disclaimer shall be filed in the probate court in which the
decedent's will has been probated or in which proceedings have been
commenced for the administration of the decedent's estate or which
has before it an application for either of the same; provided,
however, if the administration of the decedent's estate is closed,
or after the expiration of one year following the date of the
issuance of letters testamentary in an independent administration,
or if there has been no will of the decedent probated or filed for
probate, or if no administration of the decedent's estate has been
commenced, or if no application for administration of the
decedent's estate has been filed, the written memorandum of
disclaimer shall be filed with the county clerk of the county of the
decedent's residence, or, if the decedent is not a resident of this
state but real property or an interest therein located in this state
is disclaimed, a written memorandum of disclaimer shall be filed
with the county clerk of the county in which such real property or
interest therein is located, and recorded by such county clerk in
the deed records of that county.
(i) Notice of Disclaimer. Unless the beneficiary is a
charitable organization or governmental agency of the state, copies
of any written memorandum of disclaimer shall be delivered in
person to, or shall be mailed by registered or certified mail to and
received by, the legal representative of the transferor of the
interest or the holder of legal title to the property to which the
disclaimer relates not later than nine months after the death of the
decedent or, if the interest is a future interest, not later than
nine months after the date the person who will receive the property
or interest is finally ascertained and the person's interest is
indefeasibly vested. If the beneficiary is a charitable
organization or government agency of the state, the notices
required by this section shall be filed not later than the later of:
(1) the first anniversary of the date the beneficiary
receives the notice required by Section 128A of this code;[,] or
(2) the expiration of the six-month period following
the date the personal representative files:
(A) the inventory, appraisement, and list of
claims due or owing to the estate; or
(B) the affidavit in lieu of the inventory,
appraisement, and list of claims[, whichever occurs later].
(p) Extension of Time for Certain Disclaimers.
Notwithstanding the periods prescribed by Subsections (h) and (i)
of this section, a disclaimer with respect to an interest in
property passing by reason of the death of a decedent dying after
December 31, 2009, but before December 17, 2010, may be executed and
filed, and notice of the disclaimer may be given, not later than
nine months after December 17, 2010. A disclaimer filed and for
which notice is given during this extended period is valid and shall
be treated as if the disclaimer had been filed and notice had been
given within the periods prescribed by Subsections (h) and (i) of
this section. This subsection does not apply to a disclaimer made
by a beneficiary that is a charitable organization or governmental
agency of the state.
SECTION 1.09. The heading to Section 48, Texas Probate
Code, is amended to read as follows:
Sec. 48. PROCEEDINGS TO DECLARE HEIRSHIP. [WHEN AND WHERE
INSTITUTED.]
SECTION 1.10. Section 48(a), Texas Probate Code, is amended
to read as follows:
(a) When a person dies intestate owning or entitled to real
or personal property in Texas, and there shall have been no
administration in this State upon the person's [his] estate; or
when it is necessary for the trustee of a trust holding assets for
the benefit of a decedent to determine the heirs of the decedent; or
when there has been a will probated in this State or elsewhere, or
an administration in this State upon the estate of such decedent,
and any real or personal property in this State has been omitted
from such will or from such administration, or no final disposition
thereof has been made in such administration, the court of the
county in which [such proceedings were last pending, or in the event
no will of such decedent has been admitted to probate in this State,
and no administration has been granted in this State upon the estate
of such decedent, then the court of the county in which] venue would
be proper [for commencement of an administration of the decedent's
estate] under Section 6C [6] of this code[,] may determine and
declare in the manner hereinafter provided who are the heirs and
only heirs of such decedent, and their respective shares and
interests, under the laws of this State, in the estate of such
decedent or, if applicable, in the trust, and proceedings therefor
shall be known as proceedings to declare heirship.
SECTION 1.11. Section 49(a), Texas Probate Code, is amended
to read as follows:
(a) Such proceedings may be instituted and maintained under
a circumstance specified in Section 48(a) of this code [in any of
the instances enumerated above] by the qualified personal
representative of the estate of such decedent, by a party seeking
the appointment of an independent administrator under Section 145
of this code, by the trustee of a trust holding assets for the
benefit of the decedent, by any person or persons claiming to be a
secured creditor or the owner of the whole or a part of the estate of
such decedent, or by the guardian of the estate of a ward, if the
proceedings are instituted and maintained in the probate court in
which the proceedings for the guardianship of the estate were
pending at the time of the death of the ward. In such a case an
application shall be filed in a proper court stating the following
information:
(1) the name of the decedent and the time and place of
death;
(2) the names and residences of the decedent's heirs,
the relationship of each heir to the decedent, and the true interest
of the applicant and each of the heirs in the estate of the decedent
or in the trust, as applicable;
(3) all the material facts and circumstances within
the knowledge and information of the applicant that might
reasonably tend to show the time or place of death or the names or
residences of all heirs, if the time or place of death or the names
or residences of all the heirs are not definitely known to the
applicant;
(4) a statement that all children born to or adopted by
the decedent have been listed;
(5) a statement that each marriage of the decedent has
been listed with the date of the marriage, the name of the spouse,
and if the marriage was terminated, the date and place of
termination, and other facts to show whether a spouse has had an
interest in the property of the decedent;
(6) whether the decedent died testate and if so, what
disposition has been made of the will;
(7) a general description of all the real and personal
property belonging to the estate of the decedent or held in trust
for the benefit of the decedent, as applicable; and
(8) an explanation for the omission of any of the
foregoing information that is omitted from the application.
SECTION 1.12. Section 59, Texas Probate Code, is amended by
amending Subsections (a) and (b) and adding Subsection (a-1) to
read as follows:
(a) Every last will and testament, except where otherwise
provided by law, shall be in writing and signed by the testator in
person or by another person for him by his direction and in his
presence, and shall, if not wholly in the handwriting of the
testator, be attested by two or more credible witnesses above the
age of fourteen years who shall subscribe their names thereto in
their own handwriting in the presence of the testator. Such a will
or testament may, at the time of its execution or at any subsequent
date during the lifetime of the testator and the witnesses, be made
self-proved, and the testimony of the witnesses in the probate
thereof may be made unnecessary, by the affidavits of the testator
and the attesting witnesses, made before an officer authorized to
administer oaths [under the laws of this State]. Provided that
nothing shall require an affidavit or certificate of any testator
or testatrix as a prerequisite to self-proof of a will or testament
other than the certificate set out below. The affidavits shall be
evidenced by a certificate, with official seal affixed, of such
officer attached or annexed to such will or testament in form and
contents substantially as follows:
THE STATE OF TEXAS
COUNTY OF ________________
Before me, the undersigned authority, on this day personally
appeared _______________, _______________, and _______________,
known to me to be the testator and the witnesses, respectively,
whose names are subscribed to the annexed or foregoing instrument
in their respective capacities, and, all of said persons being by me
duly sworn, the said _______________, testator, declared to me and
to the said witnesses in my presence that said instrument is his
last will and testament, and that he had willingly made and executed
it as his free act and deed; and the said witnesses, each on his
oath stated to me, in the presence and hearing of the said testator,
that the said testator had declared to them that said instrument is
his last will and testament, and that he executed same as such and
wanted each of them to sign it as a witness; and upon their oaths
each witness stated further that they did sign the same as witnesses
in the presence of the said testator and at his request; that he was
at that time eighteen years of age or over (or being under such age,
was or had been lawfully married, or was then a member of the armed
forces of the United States or of an auxiliary thereof or of the
Maritime Service) and was of sound mind; and that each of said
witnesses was then at least fourteen years of age.
___________________________
Testator
___________________________
Witness
___________________________
Witness
Subscribed and sworn to before me by the said ____________,
testator, and by the said ________________ and _______________,
witnesses, this ______ day of________________ A.D.
________________.
(SEAL)
(Signed) ___________________________
(Official Capacity of Officer)
(a-1) As an alternative to the self-proving of a will by the
affidavits of the testator and the attesting witnesses under
Subsection (a) of this section, a will may be simultaneously
executed, attested, and made self-proved before an officer
authorized to administer oaths, and the testimony of the witnesses
in the probate of the will may be made unnecessary, with the
inclusion in the will of the following in form and contents
substantially as follows:
I, ______________________, as testator, after being duly
sworn, declare to the undersigned witnesses and to the undersigned
authority that this instrument is my will, that I have willingly
made and executed it in the presence of the undersigned witnesses,
all of whom were present at the same time, as my free act and deed,
and that I have requested each of the undersigned witnesses to sign
this will in my presence and in the presence of each other. I now
sign this will in the presence of the attesting witnesses and the
undersigned authority on this ______ day of __________,
20________________.
____________________________________
Testator
The undersigned, __________ and __________, each being above
fourteen years of age, after being duly sworn, declare to the
testator and to the undersigned authority that the testator
declared to us that this instrument is the testator's will and that
the testator requested us to act as witnesses to the testator's will
and signature. The testator then signed this will in our presence,
all of us being present at the same time. The testator is eighteen
years of age or over (or being under such age, is or has been
lawfully married, or is a member of the armed forces of the United
States or of an auxiliary thereof or of the Maritime Service), and
we believe the testator to be of sound mind. We now sign our names as
attesting witnesses in the presence of the testator, each other,
and the undersigned authority on this __________ day of __________,
20______________.
___________________________
Witness
___________________________
Witness
Subscribed and sworn to before me by the said _________,
testator, and by the said _____________ and ______________,
witnesses, this _____ day of __________, 20____________.
(SEAL)
(Signed) __________________
(Official Capacity of Officer)
(b) An affidavit in form and content substantially as
provided by Subsection (a) of this section is a "self-proving
affidavit." A will with a self-proving affidavit subscribed and
sworn to by the testator and witnesses attached or annexed to the
will, or a will simultaneously executed, attested, and made
self-proved as provided by Subsection (a-1) of this section, is a
"self-proved will." Substantial compliance with the form provided
by Subsection (a) or (a-1) of this section [form of such affidavit]
shall suffice to cause the will to be self-proved. For this
purpose, an affidavit that is subscribed and acknowledged by the
testator and subscribed and sworn to by the witnesses would suffice
as being in substantial compliance. A signature on a self-proving
affidavit as provided by Subsection (a) of this section is
considered a signature to the will if necessary to prove that the
will was signed by the testator or witnesses, or both, but in that
case, the will may not be considered a self-proved will.
SECTION 1.13. Section 64, Texas Probate Code, is amended to
read as follows:
Sec. 64. FORFEITURE CLAUSE. A provision in a will that
would cause a forfeiture of [a devise] or void a devise or provision
in favor of a person for bringing any court action, including
contesting a will, is unenforceable if:
(1) just [probable] cause existed [exists] for
bringing the action; and
(2) the action was brought and maintained in good
faith.
SECTION 1.14. Section 67, Texas Probate Code, is amended by
amending Subsections (a) and (b) and adding Subsection (e) to read
as follows:
(a) Whenever a pretermitted child is not mentioned in the
testator's will, provided for in the testator's will, or otherwise
provided for by the testator, the pretermitted child shall succeed
to a portion of the testator's estate as provided by Subsection
(a)(1) or (a)(2) of this section, except as limited by Subsection
(e) of this section.
(1) If the testator has one or more children living
when he executes his last will, and:
(A) No provision is made therein for any such
child, a pretermitted child succeeds to the portion of the
testator's separate and community estate to which the pretermitted
child would have been entitled pursuant to Section 38(a) of this
code had the testator died intestate without a surviving spouse
owning only that portion of his estate not devised or bequeathed to
the other parent of the pretermitted child.
(B) Provision, whether vested or contingent, is
made therein for one or more of such children, a pretermitted child
is entitled to share in the testator's estate as follows:
(i) The portion of the testator's estate to
which the pretermitted child is entitled is limited to the
disposition made to children under the will.
(ii) The pretermitted child shall receive
such share of the testator's estate, as limited in Subparagraph
(i), as he would have received had the testator included all
pretermitted children with the children upon whom benefits were
conferred under the will, and given an equal share of such benefits
to each such child.
(iii) To the extent that it is feasible, the
interest of the pretermitted child in the testator's estate shall
be of the same character, whether an equitable or legal life estate
or in fee, as the interest that the testator conferred upon his
children under the will.
(2) If the testator has no child living when he
executes his last will, the pretermitted child succeeds to the
portion of the testator's separate and community estate to which
the pretermitted child would have been entitled pursuant to Section
38(a) of this code had the testator died intestate without a
surviving spouse owning only that portion of his estate not devised
or bequeathed to the other parent of the pretermitted child.
(b) The pretermitted child may recover the share of the
testator's estate to which he is entitled either from the other
children under Subsection (a)(1)(B) or the testamentary
beneficiaries under Subsections (a)(1)(A) and (a)(2) other than the
other parent of the pretermitted child, ratably, out of the
portions of such estate passing to such persons under the will. In
abating the interests of such beneficiaries, the character of the
testamentary plan adopted by the testator shall be preserved to the
maximum extent possible.
(e) If a pretermitted child's other parent is not the
surviving spouse of the testator, the portion of the testator's
estate to which the pretermitted child is entitled under Subsection
(a)(1)(A) or (a)(2) of this section may not reduce the portion of
the testator's estate passing to the testator's surviving spouse by
more than one-half.
SECTION 1.15. Section 81(a), Texas Probate Code, is amended
to read as follows:
(a) For Probate of a Written Will. A written will shall, if
within the control of the applicant, be filed with the application
for its probate, and shall remain in the custody of the county clerk
unless removed therefrom by order of a proper court. An application
for probate of a written will shall state:
(1) The name and domicile of each applicant.
(2) The name, age if known, and domicile of the
decedent, and the fact, time, and place of death.
(3) Facts showing that the court has venue.
(4) That the decedent owned real or personal property,
or both, describing the same generally, and stating its probable
value.
(5) The date of the will, the name and residence of the
executor named therein, if any, and if none be named, then the name
and residence of the person to whom it is desired that letters be
issued, and also the names and residences of the subscribing
witnesses, if any.
(6) Whether a child or children born or adopted after
the making of such will survived the decedent, and the name of each
such survivor, if any.
(7) That such executor or applicant, or other person
to whom it is desired that letters be issued, is not disqualified by
law from accepting letters.
(8) Whether a marriage of the decedent was ever
dissolved after the will was made[, whether by divorce, annulment,
or a declaration that the marriage was void,] and if so, when and
from whom.
(9) Whether the state, a governmental agency of the
state, or a charitable organization is named by the will as a
devisee.
The foregoing matters shall be stated and averred in the
application to the extent that they are known to the applicant, or
can with reasonable diligence be ascertained by him, and if any of
such matters is not stated or averred in the application, the
application shall set forth the reason why such matter is not so
stated and averred.
SECTION 1.16. Section 84(a), Texas Probate Code, is amended
to read as follows:
(a)(1) If a will is self-proved as provided in Section 59 of
this Code or, if executed in another state or a foreign country, is
self-proved in accordance with the laws of the state or foreign
country of the testator's domicile at the time of the execution, no
further proof of its execution with the formalities and solemnities
and under the circumstances required to make it a valid will shall
be necessary.
(2) For purposes of Subdivision (1) of this
subsection, a will is considered self-proved if the will, or an
affidavit of the testator and attesting witnesses attached or
annexed to the will, provides that:
(A) the testator declared that the testator
signed the instrument as the testator's will, the testator signed
it willingly or willingly directed another to sign for the
testator, the testator executed the will as the testator's free and
voluntary act for the purposes expressed in the instrument, the
testator is of sound mind and under no constraint or undue
influence, and the testator is eighteen years of age or over, or if
under that age, was or had been lawfully married, or was then a
member of the armed forces of the United States, an auxiliary of the
armed forces of the United States, or the United States Maritime
Service; and
(B) the witnesses declared that the testator
signed the instrument as the testator's will, the testator signed
it willingly or willingly directed another to sign for the
testator, each of the witnesses, in the presence and hearing of the
testator, signed the will as witness to the testator's signing, and
to the best of their knowledge the testator was of sound mind and
under no constraint or undue influence, and the testator was
eighteen years of age or over, or if under that age, was or had been
lawfully married, or was then a member of the armed forces of the
United States, an auxiliary of the armed forces of the United
States, or the United States Maritime Service.
SECTION 1.17. Section 89A(a), Texas Probate Code, is
amended to read as follows:
(a) A written will shall, if within the control of the
applicant, be filed with the application for probate as a muniment
of title, and shall remain in the custody of the county clerk unless
removed from the custody of the clerk by order of a proper court. An
application for probate of a will as a muniment of title shall
state:
(1) The name and domicile of each applicant.
(2) The name, age if known, and domicile of the
decedent, and the fact, time, and place of death.
(3) Facts showing that the court has venue.
(4) That the decedent owned real or personal property,
or both, describing the property generally, and stating its
probable value.
(5) The date of the will, the name and residence of the
executor named in the will, if any, and the names and residences of
the subscribing witnesses, if any.
(6) Whether a child or children born or adopted after
the making of such will survived the decedent, and the name of each
such survivor, if any.
(7) That there are no unpaid debts owing by the estate
of the testator, excluding debts secured by liens on real estate.
(8) Whether a marriage of the decedent was ever
dissolved after the will was made[, whether by divorce, annulment,
or a declaration that the marriage was void,] and if so, when and
from whom.
(9) Whether the state, a governmental agency of the
state, or a charitable organization is named by the will as a
devisee.
The foregoing matters shall be stated and averred in the
application to the extent that they are known to the applicant, or
can with reasonable diligence be ascertained by the applicant, and
if any of such matters is not stated or averred in the application,
the application shall set forth the reason why such matter is not so
stated and averred.
SECTION 1.18. Section 128A, Texas Probate Code, as amended
by Chapters 801 (S.B. 593) and 1170 (H.B. 391), Acts of the 80th
Legislature, Regular Session, 2007, is reenacted and amended to
read as follows:
Sec. 128A. NOTICE TO CERTAIN BENEFICIARIES AFTER PROBATE OF
WILL. (a) In this section, "beneficiary" means a person, entity,
state, governmental agency of the state, charitable organization,
or trustee of a trust entitled to receive [real or personal]
property under the terms of a decedent's will, to be determined for
purposes of this section with the assumption that each person who is
alive on the date of the decedent's death survives any period
required to receive the bequest as specified by the terms of the
will. The term does not include a person, entity, state,
governmental agency of the state, charitable organization, or
trustee of a trust that would be entitled to receive property under
the terms of a decedent's will on the occurrence of a contingency
that has not occurred as of the date of the decedent's death.
(a-1) This section does not apply to the probate of a will as
a muniment of title.
(b) Except as provided by Subsection (d) of this section,
not later than the 60th day after the date of an order admitting a
decedent's will to probate, the personal representative of the
decedent's estate, including an independent executor or
independent administrator, shall give notice that complies with
Subsection (e) of this section to each beneficiary named in the will
whose identity and address are known to the personal representative
or, through reasonable diligence, can be ascertained. If, after
the 60th day after the date of the order, the personal
representative becomes aware of the identity and address of a
beneficiary who was not given notice on or before the 60th day, the
personal representative shall give the notice as soon as possible
after becoming aware of that information.
(c) Notwithstanding the requirement under Subsection (b) of
this section that the personal representative give the notice to
the beneficiary, the personal representative shall give the notice
with respect to a beneficiary described by this subsection as
follows:
(1) if the beneficiary is a trustee of a trust, to the
trustee, unless the personal representative is the trustee, in
which case the personal representative shall, except as provided by
Subsection (c-1) of this section, give the notice to the person or
class of persons first eligible to receive the trust income, to be
determined for purposes of this subdivision as if the trust were in
existence on the date of the decedent's death;
(2) if the beneficiary has a court-appointed guardian
or conservator, to that guardian or conservator;
(3) if the beneficiary is a minor for whom no guardian
or conservator has been appointed, to a parent of the minor; and
(4) if the beneficiary is a charity that for any reason
cannot be notified, to the attorney general.
(c-1) The personal representative is not required to give
the notice otherwise required by Subsection (c)(1) of this section
to a person eligible to receive trust income at the sole discretion
of the trustee of a trust if:
(1) the personal representative has given the notice
to an ancestor of the person who has a similar interest in the
trust; and
(2) no apparent conflict exists between the ancestor
and the person eligible to receive trust income.
(d) A personal representative is not required to give the
notice otherwise required by this section to a beneficiary who:
(1) has made an appearance in the proceeding with
respect to the decedent's estate before the will was admitted to
probate; [or]
(2) is entitled to receive aggregate gifts under the
will with an estimated value of $2,000 or less;
(3) has received all gifts to which the beneficiary is
entitled under the will not later than the 60th day after the date
of the order admitting the decedent's will to probate; or
(4) has received a copy of the will that was admitted
to probate or a written summary of the gifts to the beneficiary
under the will and has waived the right to receive the notice in an
instrument that:
(A) either acknowledges the receipt of the copy
of the will or includes the written summary of the gifts to the
beneficiary under the will;
(B) is signed by the beneficiary; and
(C) is filed with the court.
(e) The notice required by this section must include:
(1) [state:
[(A)] the name and address of the beneficiary to
whom the notice is given or, for a beneficiary described by
Subsection (c) of this section, the name and address of the
beneficiary for whom the notice is given and of the person to whom
the notice is given;
(2) [(B)] the decedent's name;
(3) a statement [(C)] that the decedent's will has
been admitted to probate;
(4) a statement [(D)] that the beneficiary to whom or
for whom the notice is given is named as a beneficiary in the will;
[and]
(5) [(E)] the personal representative's name and
contact information; and
(6) either:
(A) [(2) contain as attachments] a copy of the
will that was admitted to probate and the order admitting the will
to probate; or
(B) a summary of the gifts to the beneficiary
under the will, the court in which the will was admitted to probate,
the docket number assigned to the estate, the date the will was
admitted to probate, and, if different, the date the court
appointed the personal representative.
(f) The notice required by this section must be sent by
registered or certified mail, return receipt requested.
(g) Not later than the 90th day after the date of an order
admitting a will to probate, the personal representative shall file
with the clerk of the court in which the decedent's estate is
pending a sworn affidavit of the personal representative, or a
certificate signed by the personal representative's attorney,
stating:
(1) for each beneficiary to whom notice was required
to be given under this section, the name and address of the
beneficiary to whom the personal representative gave the notice or,
for a beneficiary described by Subsection (c) of this section, the
name and address of the beneficiary and of the person to whom the
notice was given;
(2) the name and address of each beneficiary to whom
notice was not required to be given under Subsection (d)(2), (3), or
(4) of this section [who filed a waiver of the notice];
(3) the name of each beneficiary whose identity or
address could not be ascertained despite the personal
representative's exercise of reasonable diligence; and
(4) any other information necessary to explain the
personal representative's inability to give the notice to or for
any beneficiary as required by this section.
(h) The affidavit or certificate required by Subsection (g)
of this section may be included with any pleading or other document
filed with the clerk of the court, including the inventory,
appraisement, and list of claims, an affidavit in lieu of the
inventory, appraisement, and list of claims, or an application for
an extension of the deadline to file the inventory, appraisement,
and list of claims or an affidavit in lieu of the inventory,
appraisement, and list of claims, provided that the pleading or
other document with which the affidavit or certificate is included
is filed not later than the date the affidavit or certificate is
required to be filed as provided by Subsection (g) of this section.
SECTION 1.19. Section 143, Texas Probate Code, is amended
to read as follows:
Sec. 143. SUMMARY PROCEEDINGS FOR SMALL ESTATES AFTER
PERSONAL REPRESENTATIVE APPOINTED. Whenever, after the inventory,
appraisement, and list of claims or the affidavit in lieu of the
inventory, appraisement, and list of claims has been filed by a
personal representative, it is established that the estate of a
decedent, exclusive of the homestead and exempt property and family
allowance to the surviving spouse and minor children, does not
exceed the amount sufficient to pay the claims of Classes One to
Four, inclusive, as claims are hereinafter classified, the personal
representative shall, upon order of the court, pay the claims in the
order provided and to the extent permitted by the assets of the
estate subject to the payment of such claims, and thereafter
present his account with an application for the settlement and
allowance thereof. Thereupon the court, with or without notice,
may adjust, correct, settle, allow or disallow such account, and,
if the account is settled and allowed, may decree final
distribution, discharge the personal representative, and close the
administration.
SECTION 1.20. Sections 145(g), (h), (i), and (j), Texas
Probate Code, are amended to read as follows:
(g) The court may not appoint an independent administrator
to serve in an intestate administration unless and until the
parties seeking appointment of the independent administrator have
been determined, through a proceeding to declare heirship under
Chapter III of this code, to constitute all of the decedent's heirs.
[In no case shall any independent administrator be appointed by any
court to serve in any intestate administration until those parties
seeking the appointment of said independent administrator offer
clear and convincing evidence to the court that they constitute all
of the said decedent's heirs.]
(h) When an independent administration has been created,
and the order appointing an independent executor has been entered
by the county court, and the inventory, appraisement, and list
aforesaid has been filed by the executor and approved by the county
court or an affidavit in lieu of the inventory, appraisement, and
list of claims has been filed by the executor, as long as the estate
is represented by an independent executor, further action of any
nature shall not be had in the county court except where this Code
specifically and explicitly provides for some action in the county
court.
(i) If a distributee described in Subsections (c) through
(e) of this section is an incapacitated person, the guardian of the
person of the distributee may sign the application on behalf of the
distributee. If the county court finds that either the granting of
independent administration or the appointment of the person, firm,
or corporation designated in the application as independent
executor would not be in the best interests of the incapacitated
person, then, notwithstanding anything to the contrary in
Subsections (c) through (e) of this section, the county court shall
not enter an order granting independent administration of the
estate. If such distributee who is an incapacitated person has no
guardian of the person, the county court may appoint a guardian ad
litem to make application on behalf of the incapacitated person if
the county court considers such an appointment necessary to protect
the interest of the distributees. Alternatively, if the
distributee who is an incapacitated person is a minor and has no
guardian of the person, the natural guardian or guardians of the
minor may consent on the minor's behalf if there is no conflict of
interest between the minor and the natural guardian or guardians.
(j) If a trust is created in the decedent's will, the person
or class of persons first eligible to receive the income from the
trust, when determined as if the trust were to be in existence on
the date of the decedent's death, shall, for the purposes of
Subsections (c) and (d) of this section, be deemed to be the
distributee or distributees on behalf of such trust, and any other
trust or trusts coming into existence upon the termination of such
trust, and are authorized to apply for independent administration
on behalf of the trusts without the consent or agreement of the
trustee or any other beneficiary of the trust, or the trustee or any
beneficiary of any other trust which may come into existence upon
the termination of such trust. If a trust beneficiary who is
considered to be a distributee under this subsection is an
incapacitated person, the trustee or cotrustee may file the
application or give the consent, provided that the trustee or
cotrustee is not the person proposed to serve as the independent
executor.
SECTION 1.21. Part 4, Chapter VI, Texas Probate Code, is
amended by adding Sections 145A, 145B, and 145C to read as follows:
Sec. 145A. GRANTING POWER OF SALE BY AGREEMENT. In a
situation in which a decedent does not have a will or a decedent's
will does not contain language authorizing the personal
representative to sell real property or contains language that is
not sufficient to grant the representative that authority, the
court may include in an order appointing an independent executor
under Section 145 of this code any general or specific authority
regarding the power of the independent executor to sell real
property that may be consented to by the beneficiaries who are to
receive any interest in the real property in the application for
independent administration or in their consents to the independent
administration. The independent executor, in such event, may sell
the real property under the authority granted in the court order
without the further consent of those beneficiaries.
Sec. 145B. INDEPENDENT EXECUTORS MAY ACT WITHOUT COURT
APPROVAL. Unless this code specifically provides otherwise, any
action that a personal representative subject to court supervision
may take with or without a court order may be taken by an
independent executor without a court order. The other provisions
of this part are designed to provide additional guidance regarding
independent administrations in specified situations, and are not
designed to limit by omission or otherwise the application of the
general principles set forth in this part.
Sec. 145C. POWER OF SALE OF ESTATE PROPERTY. (a)
Definition. In this section, "independent executor" does not
include an independent administrator.
(b) General. Unless limited by the terms of a will, an
independent executor, in addition to any power of sale of estate
property given in the will, and an independent administrator have
the same power of sale for the same purposes as a personal
representative has in a supervised administration, but without the
requirement of court approval. The procedural requirements
applicable to a supervised administration do not apply.
(c) Protection of Person Purchasing Estate Property. (1) A
person who is not a devisee or heir is not required to inquire into
the power of sale of estate property of the independent executor or
independent administrator or the propriety of the exercise of the
power of sale if the person deals with the independent executor or
independent administrator in good faith and:
(A) a power of sale is granted to the independent
executor in the will;
(B) a power of sale is granted under Section 145A
of this code in the court order appointing the independent executor
or independent administrator; or
(C) the independent executor or independent
administrator provides an affidavit, executed and sworn to under
oath and recorded in the deed records of the county where the
property is located, that the sale is necessary or advisable for any
of the purposes described in Section 341(1) of this code.
(2) As to acts undertaken in good faith reliance, the
affidavit described by Subsection (c)(1)(C) of this section is
conclusive proof, as between a purchaser of property from an
estate, and the personal representative of the estate or the heirs
and distributees of the estate, with respect to the authority of the
independent executor or independent administrator to sell the
property. The signature or joinder of a devisee or heir who has an
interest in the property being sold as described in this section is
not necessary for the purchaser to obtain all right, title, and
interest of the estate in the property being sold.
(3) This section does not relieve the independent
executor or independent administrator from any duty owed to a
devisee or heir in relation, directly or indirectly, to the sale.
(d) No Limitations. This section does not limit the
authority of an independent executor or independent administrator
to take any other action without court supervision or approval with
respect to estate assets that may take place in a supervised
administration, for purposes and within the scope otherwise
authorized by this code, including the authority to enter into a
lease and to borrow money.
SECTION 1.22. Section 146, Texas Probate Code, is amended
by adding Subsections (a-1) and (b-1) through (b-7) and amending
Subsection (b) to read as follows:
(a-1) Statement in Notice of Claim. To be effective, the
notice provided under Subsection (a)(2) of this section must
include, in addition to the other information required by Section
294(d) of this code, a statement that a claim may be effectively
presented by only one of the methods prescribed by this section.
(b) Secured Claims for Money. Within six months after the
date letters are granted or within four months after the date notice
is received under Section 295 of this code, whichever is later, a
creditor with a claim for money secured by real or personal property
of the estate must give notice to the independent executor of the
creditor's election to have the creditor's claim approved as a
matured secured claim to be paid in due course of administration.
In addition to giving the notice within this period, a creditor
whose claim is secured by real property shall record a notice of the
creditor's election under this subsection in the deed records of
the county in which the real property is located. If no [the]
election to be a matured secured creditor is made, or the election
is made, but not within the prescribed period, or is made within the
prescribed period but the creditor has a lien against real property
and fails to record notice of the claim in the deed records as
required within the prescribed period [is not made], the claim
shall be [is] a preferred debt and lien against the specific
property securing the indebtedness and shall be paid according to
the terms of the contract that secured the lien, and the claim may
not be asserted against other assets of the estate. The independent
executor may pay the claim before the claim matures if paying the
claim before maturity is in the best interest of the estate.
(b-1) Matured Secured Claims. (1) A claim approved as a
matured secured claim under Subsection (b) of this section remains
secured by any lien or security interest against the specific
property securing payment of the claim but subordinated to the
payment from the property of claims having a higher classification
under Section 322 of this code. However, the secured creditor:
(A) is not entitled to exercise any remedies in a
manner that prevents the payment of the higher priority claims and
allowances; and
(B) during the administration of the estate, is
not entitled to exercise any contractual collection rights,
including the power to foreclose, without either the prior written
approval of the independent executor or court approval.
(2) Subdivision (1) of this subsection may not be
construed to suspend or otherwise prevent a creditor with a matured
secured claim from seeking judicial relief of any kind or from
executing any judgment against an independent executor. Except
with respect to real property, any third party acting in good faith
may obtain good title with respect to an estate asset acquired
through a secured creditor's extrajudicial collection rights,
without regard to whether the creditor had the right to collect the
asset or whether the creditor acted improperly in exercising those
rights during an estate administration due to having elected
matured secured status.
(3) If a claim approved or established by suit as a
matured secured claim is secured by property passing to one or more
devisees in accordance with Section 71A of this code, the
independent executor shall collect from the devisees the amount of
the debt and pay that amount to the claimant or shall sell the
property and pay out of the sale proceeds the claim and associated
expenses of sale consistent with the provisions of Section 306(c-1)
of this code applicable to court supervised administrations.
(b-2) Preferred Debt and Lien Claims. During an independent
administration, a secured creditor whose claim is a preferred debt
and lien against property securing the indebtedness under
Subsection (b) of this section is free to exercise any judicial or
extrajudicial collection rights, including the right to
foreclosure and execution; provided, however, that the creditor
does not have the right to conduct a nonjudicial foreclosure sale
within six months after letters are granted.
(b-3) Certain Unsecured Claims; Barring of Claims. An
unsecured creditor who has a claim for money against an estate and
who receives a notice under Section 294(d) of this code shall give
to the independent executor notice of the nature and amount of the
claim not later than the 120th day after the date the notice is
received or the claim is barred.
(b-4) Notices Required by Creditors. Notice to the
independent executor required by Subsections (b) and (b-3) of this
section must be contained in:
(1) a written instrument that is hand-delivered with
proof of receipt, or mailed by certified mail, return receipt
requested with proof of receipt, to the independent executor or the
executor's attorney;
(2) a pleading filed in a lawsuit with respect to the
claim; or
(3) a written instrument or pleading filed in the
court in which the administration of the estate is pending.
(b-5) Filing Requirements Applicable. Subsection (b-4) of
this section does not exempt a creditor who elects matured secured
status from the filing requirements of Subsection (b) of this
section, to the extent those requirements are applicable.
(b-6) Statute of Limitations. Except as otherwise provided
by Section 16.062, Civil Practice and Remedies Code, the running of
the statute of limitations shall be tolled only by a written
approval of a claim signed by an independent executor, a pleading
filed in a suit pending at the time of the decedent's death, or a
suit brought by the creditor against the independent executor. In
particular, the presentation of a statement or claim, or a notice
with respect to a claim, to an independent executor does not toll
the running of the statute of limitations with respect to that
claim.
(b-7) Other Claim Procedures of Code Generally Do Not Apply.
Except as otherwise provided by this section, the procedural
provisions of this code governing creditor claims in supervised
administrations do not apply to independent administrations. By
way of example, but not as a limitation:
(1) Section 313 of this code does not apply to
independent administrations, and consequently a creditor's claim
may not be barred solely because the creditor failed to file a suit
not later than the 90th day after the date an independent executor
rejected the claim or with respect to a claim for which the
independent executor takes no action; and
(2) Sections 306(f)-(k) of this code do not apply to
independent administrations.
SECTION 1.23. Section 149B(a), Texas Probate Code, is
amended to read as follows:
(a) In addition to or in lieu of the right to an accounting
provided by Section 149A of this code, at any time after the
expiration of two years from the date the court clerk first issues
letters testamentary or of administration to any personal
representative of an estate [that an independent administration was
created and the order appointing an independent executor was
entered], a person interested in the estate then subject to
independent administration may petition the county court, as that
term is defined by Section 3 of this code, for an accounting and
distribution. The court may order an accounting to be made with the
court by the independent executor at such time as the court deems
proper. The accounting shall include the information that the
court deems necessary to determine whether any part of the estate
should be distributed.
SECTION 1.24. Section 149C(a), Texas Probate Code, is
amended to read as follows:
(a) The county court, as that term is defined by Section 3 of
this code, on its own motion or on motion of any interested person,
after the independent executor has been cited by personal service
to answer at a time and place fixed in the notice, may remove an
independent executor when:
(1) the independent executor fails to return within
ninety days after qualification, unless such time is extended by
order of the court, either an inventory of the property of the
estate and list of claims that have come to the independent
executor's knowledge or an affidavit in lieu of the inventory,
appraisement, and list of claims;
(2) sufficient grounds appear to support belief that
the independent executor has misapplied or embezzled, or that the
independent executor is about to misapply or embezzle, all or any
part of the property committed to the independent executor's care;
(3) the independent executor fails to make an
accounting which is required by law to be made;
(4) the independent executor fails to timely file the
affidavit or certificate required by Section 128A of this code;
(5) the independent executor is proved to have been
guilty of gross misconduct or gross mismanagement in the
performance of the independent executor's duties; or
(6) the independent executor becomes an incapacitated
person, or is sentenced to the penitentiary, or from any other cause
becomes legally incapacitated from properly performing the
independent executor's fiduciary duties.
SECTION 1.25. Section 151, Texas Probate Code, is amended
to read as follows:
Sec. 151. CLOSING INDEPENDENT ADMINISTRATION BY CLOSING
REPORT OR NOTICE OF CLOSING ESTATE [AFFIDAVIT]. (a) Filing of
Closing Report or Notice of Closing Estate [Affidavit]. When all of
the debts known to exist against the estate have been paid, or when
they have been paid so far as the assets in the hands of the
independent executor will permit, when there is no pending
litigation, and when the independent executor has distributed to
the persons entitled thereto all assets of the estate, if any,
remaining after payment of debts, the independent executor may file
with the court a closing report or a notice of closing of the
estate.
(a-1) Closing Report. An independent executor may file [:
[(1)] a closing report verified by affidavit that:
(1) shows:
(A) the [(i) The] property of the estate which
came into the possession [hands] of the independent executor;
(B) the [(ii) The] debts that have been paid;
(C) the [(iii) The] debts, if any, still owing by
the estate;
(D) the [(iv) The] property of the estate, if
any, remaining on hand after payment of debts; and
(E) the [(v) The] names and residences of the
persons to whom the property of the estate, if any, remaining on
hand after payment of debts has been distributed; and
(2) includes signed receipts or other proof of
delivery of property to the distributees named in the closing
report if the closing report reflects that there was property
remaining on hand after payment of debts.
(b) Notice of Closing Estate. (1) Instead of filing a
closing report under Subsection (a-1) of this section, an
independent executor may file a notice of closing estate verified
by affidavit that states:
(A) that all debts known to exist against the
estate have been paid or have been paid to the extent permitted by
the assets in the independent executor's possession;
(B) that all remaining assets of the estate, if
any, have been distributed; and
(C) the names and addresses of the distributees
to whom the property of the estate, if any, remaining on hand after
payment of debts has been distributed.
(2) Before filing the notice, the independent executor
shall provide to each distributee of the estate a copy of the notice
of closing estate. The notice of closing estate filed by the
independent executor must include signed receipts or other proof
that all distributees have received a copy of the notice of closing
estate.
(c) Effect of Filing Closing Report or Notice of Closing
Estate [the Affidavit]. (1) The independent administration of an
estate is considered closed 30 days after the date of the filing of
a closing report or notice of closing estate unless an interested
person files an objection with the court within that time. If an
interested person files an objection within the 30-day period, the
independent administration of the estate is closed when the
objection has been disposed of or the court signs an order closing
the estate.
(2) The closing of an [filing of such an affidavit and
proof of delivery, if required, shall terminate the] independent
administration by filing of a closing report or notice of closing
estate terminates [and] the power and authority of the independent
executor, but shall not relieve the independent executor from
liability for any mismanagement of the estate or from liability for
any false statements contained in the report or notice [affidavit].
(3) When a closing report or notice of closing estate
[such an affidavit] has been filed, persons dealing with properties
of the estate, or with claims against the estate, shall deal
directly with the distributees of the estate; and the acts of the
[such] distributees with respect to the [such] properties or claims
shall in all ways be valid and binding as regards the persons with
whom they deal, notwithstanding any false statements made by the
independent executor in the report or notice [such affidavit].
(4) [(2)] If the independent executor is required to
give bond, the independent executor's filing of the closing report
[affidavit] and proof of delivery, if required, automatically
releases the sureties on the bond from all liability for the future
acts of the principal. The filing of a notice of closing estate
does not release the sureties on the bond of an independent
executor.
(d) [(c)] Authority to Transfer Property of a Decedent
After Filing the Closing Report or Notice of Closing Estate
[Affidavit]. An independent executor's closing report or notice of
closing estate [affidavit closing the independent administration]
shall constitute sufficient legal authority to all persons owing
any money, having custody of any property, or acting as registrar or
transfer agent or trustee of any evidence of interest,
indebtedness, property, or right that belongs to the estate, for
payment or transfer without additional administration to the
distributees [persons] described in the will as entitled to receive
the particular asset or who as heirs at law are entitled to receive
the asset. The distributees [persons] described in the will as
entitled to receive the particular asset or the heirs at law
entitled to receive the asset may enforce their right to the payment
or transfer by suit.
(e) [(d)] Delivery Subject to Receipt or Proof of Delivery.
An independent executor may not be required to deliver tangible or
intangible personal property to a distributee unless the
independent executor receives [shall receive], at or before the
time of delivery of the property, a signed receipt or other proof of
delivery of the property to the distributee. An independent
executor may [shall] not require a waiver or release from the
distributee as a condition of delivery of property to a
distributee.
SECTION 1.26. Section 227, Texas Probate Code, is amended
to read as follows:
Sec. 227. SUCCESSORS RETURN OF INVENTORY, APPRAISEMENT, AND
LIST OF CLAIMS OR AFFIDAVIT IN LIEU OF INVENTORY, APPRAISEMENT, AND
LIST OF CLAIMS. An appointee who has been qualified to succeed to a
prior personal representative shall make and return to the court an
inventory, appraisement, and list of claims of the estate, or if the
appointee is an independent executor, shall make and return to the
court that document or file an affidavit in lieu of the inventory,
appraisement, and list of claims, within ninety days after being
qualified, in like manner as is provided for [required of] original
appointees; and he shall also in like manner return additional
inventories, appraisements, and lists of claims or file additional
affidavits. In all orders appointing successor representatives of
estates, the court shall appoint appraisers as in original
appointments upon the application of any person interested in the
estate.
SECTION 1.27. Section 250, Texas Probate Code, is amended
to read as follows:
Sec. 250. INVENTORY AND APPRAISEMENT; AFFIDAVIT IN LIEU OF
INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS. (a) Within ninety
days after the representative's [his] qualification, unless a
longer time shall be granted by the court, the representative shall
prepare and file with the clerk of court a verified, full, and
detailed inventory, in one written instrument, of all the property
of such estate which has come to the representative's [his]
possession or knowledge, which inventory shall include:
(1) [(a)] all real property of the estate situated in
the State of Texas; and
(2) [(b)] all personal property of the estate wherever
situated.
(b) The representative shall set out in the inventory the
representative's [his] appraisement of the fair market value of
each item thereof as of the date of death in the case of grant of
letters testamentary or of administration, as the case may be;
provided that if the court shall appoint an appraiser or appraisers
of the estate, the representative shall determine the fair market
value of each item of the inventory with the assistance of such
appraiser or appraisers and shall set out in the inventory such
appraisement. The inventory shall specify what portion of the
property, if any, is separate property and what portion, if any, is
community property. [If any property is owned in common with
others, the interest owned by the estate shall be shown, together
with the names and relationship, if known, of co-owners.] Such
inventory, when approved by the court and duly filed with the clerk
of court, shall constitute for all purposes the inventory and
appraisement of the estate referred to in this Code. The court for
good cause shown may require the filing of the inventory and
appraisement at a time prior to ninety days after the qualification
of the representative.
(c) Notwithstanding Subsection (a) of this section, if
there are no unpaid debts, except for secured debts, taxes, and
administration expenses, at the time the inventory is due,
including any extensions, an independent executor may file with the
court clerk, in lieu of the inventory, appraisement, and list of
claims, an affidavit stating that all debts, except for secured
debts, taxes, and administration expenses, are paid and that all
beneficiaries have received a verified, full, and detailed
inventory. The affidavit in lieu of the inventory, appraisement,
and list of claims must be filed within the 90-day period prescribed
by Subsection (a) of this section, unless the court grants an
extension.
(d) In this section, "beneficiary" means a person, entity,
state, governmental agency of the state, charitable organization,
or trust entitled to receive real or personal property:
(1) under the terms of a decedent's will, to be
determined for purposes of this subsection with the assumption that
each person who is alive on the date of the decedent's death
survives any period required to receive the bequest as specified by
the terms of the will; or
(2) as an heir of the decedent.
(e) If the independent executor files an affidavit in lieu
of filing an inventory, appraisement, and list of claims as
authorized under Subsection (c) of this section:
(1) any person interested in the estate, including a
possible heir of the decedent or a beneficiary under a prior will of
the decedent, is entitled to receive a copy of the inventory,
appraisement, and list of claims from the independent executor on
written request;
(2) the independent executor may provide a copy of the
inventory, appraisement, and list of claims to any person the
independent executor believes in good faith may be a person
interested in the estate without liability to the estate or its
beneficiaries; and
(3) a person interested in the estate may apply to the
court for an order compelling compliance with Subdivision (1) of
this subsection and the court, in its discretion, may compel the
independent executor to provide a copy of the inventory,
appraisement, and list of claims to the interested person or may
deny the application.
SECTION 1.28. Section 256, Texas Probate Code, is amended
to read as follows:
Sec. 256. DISCOVERY OF ADDITIONAL PROPERTY. (a) If, after
the filing of the inventory and appraisement, property or claims
not included in the inventory shall come to the possession or
knowledge of the representative, the representative [he] shall
forthwith file with the clerk of court a verified, full, and
detailed supplemental inventory and appraisement.
(b) If, after the filing of an affidavit in lieu of the
inventory and appraisement, property or claims not included in the
inventory given to the beneficiaries shall come to the possession
or knowledge of the representative, the representative shall
forthwith file with the clerk of court a supplemental affidavit in
lieu of the inventory and appraisement stating that all
beneficiaries have received a verified, full, and detailed
supplemental inventory and appraisement.
SECTION 1.29. Section 260, Texas Probate Code, is amended
to read as follows:
Sec. 260. FAILURE OF JOINT PERSONAL REPRESENTATIVES TO
RETURN AN INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS OR AFFIDAVIT
IN LIEU OF INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS. If there be
more than one representative qualified as such, any one or more of
them, on the neglect of the others, may make and return an inventory
and appraisement and list of claims or file an affidavit in lieu of
an inventory, appraisement, and list of claims; and the
representative so neglecting shall not thereafter interfere with
the estate or have any power over same; but the representative so
returning the inventory, appraisement, and list of claims or filing
the affidavit in lieu of an inventory, appraisement, and list of
claims shall have the whole administration, unless, within sixty
days after the return or the filing, the delinquent or delinquents
shall assign to the court in writing and under oath a reasonable
excuse which the court may deem satisfactory; and if no excuse is
filed or if the excuse filed is not deemed sufficient, the court
shall enter an order removing any and all such delinquents and
revoking their letters.
SECTION 1.30. Sections 271(a) and (b), Texas Probate Code,
are amended to read as follows:
(a) Unless an affidavit is filed under Subsection (b) of
this section, immediately after the inventory, appraisement, and
list of claims have been approved or after the affidavit in lieu of
the inventory, appraisement, and list of claims has been filed, the
court shall, by order, set apart:
(1) the homestead for the use and benefit of the
surviving spouse and minor children; and
(2) all other property of the estate that is exempt
from execution or forced sale by the constitution and laws of this
state for the use and benefit of the surviving spouse and minor
children and unmarried children remaining with the family of the
deceased.
(b) Before the approval of the inventory, appraisement, and
list of claims or, if applicable, before the filing of the affidavit
in lieu of the inventory, appraisement, and list of claims:
(1) a surviving spouse or any person who is authorized
to act on behalf of minor children of the deceased may apply to the
court to have exempt property, including the homestead, set aside
by filing an application and a verified affidavit listing all of the
property that the applicant claims is exempt; and
(2) any unmarried children remaining with the family
of the deceased may apply to the court to have all exempt property
other than the homestead set aside by filing an application and a
verified affidavit listing all of the other property that the
applicant claims is exempt.
SECTION 1.31. Section 286, Texas Probate Code, is amended
to read as follows:
Sec. 286. FAMILY ALLOWANCE TO SURVIVING SPOUSES AND MINORS.
(a) Unless an affidavit is filed under Subsection (b) of this
section, immediately after the inventory, appraisement, and list of
claims have been approved or the affidavit in lieu of the inventory,
appraisement, and list of claims has been filed, the court shall fix
a family allowance for the support of the surviving spouse and minor
children of the deceased.
(b) Before the approval of the inventory, appraisement, and
list of claims or, if applicable, before the filing of the affidavit
in lieu of the inventory, appraisement, and list of claims, a
surviving spouse or any person who is authorized to act on behalf of
minor children of the deceased may apply to the court to have the
court fix the family allowance by filing an application and a
verified affidavit describing the amount necessary for the
maintenance of the surviving spouse and minor children for one year
after the date of the death of the decedent and describing the
spouse's separate property and any property that minor children
have in their own right. The applicant bears the burden of proof by
a preponderance of the evidence at any hearing on the application.
The court shall fix a family allowance for the support of the
surviving spouse and minor children of the deceased.
SECTION 1.32. Section 293, Texas Probate Code, is amended
to read as follows:
Sec. 293. SALE TO RAISE FUNDS FOR FAMILY ALLOWANCE. If
there be no personal property of the deceased that the surviving
spouse or guardian is willing to take for such allowance, or not a
sufficiency of them, and if there be no funds or not sufficient
funds in the hands of such executor or administrator to pay such
allowance, or any part thereof, then the court, as soon as the
inventory, appraisement, and list of claims are returned and
approved or, if applicable, the affidavit in lieu of the inventory,
appraisement, and list of claims is filed, shall order a sale of so
much of the estate for cash as will be sufficient to raise the
amount of such allowance, or a part thereof, as the case requires.
SECTION 1.33. The heading to Section 322, Texas Probate
Code, is amended to read as follows:
Sec. 322. CLASSIFICATION OF CLAIMS AGAINST ESTATE [ESTATES]
OF DECEDENT.
SECTION 1.34. Section 385(a), Texas Probate Code, is
amended to read as follows:
(a) Application for Partition. When a husband or wife shall
die leaving any community property, the survivor may, at any time
after letters testamentary or of administration have been granted,
and an inventory, appraisement, and list of the claims of the estate
have been returned or an affidavit in lieu of the inventory,
appraisement, and list of claims has been filed, make application
in writing to the court which granted such letters for a partition
of such community property.
SECTION 1.35. Section 436, Texas Probate Code, is amended
by adding Subdivision (2-a) and amending Subdivisions (7) and (11)
to read as follows:
(2-a) "Charitable organization" means any
corporation, community chest, fund, or foundation that is exempt
from federal income tax under Section 501(a) of the Internal
Revenue Code of 1986 by being listed as an exempt organization in
Section 501(c)(3) of that code.
(7) "Party" means a person who, by the terms of the
account, has a present right, subject to request, to payment from a
multiple-party account. A P.O.D. payee, including a charitable
organization, or beneficiary of a trust account is a party only
after the account becomes payable to the P.O.D payee or beneficiary
[him] by reason of the P.O.D payee or beneficiary [his] surviving
the original payee or trustee. Unless the context otherwise
requires, it includes a guardian, personal representative, or
assignee, including an attaching creditor, of a party. It also
includes a person identified as a trustee of an account for another
whether or not a beneficiary is named, but it does not include a
named beneficiary unless the beneficiary has a present right of
withdrawal.
(11) "P.O.D. payee" means a person or charitable
organization designated on a P.O.D. account as one to whom the
account is payable on request after the death of one or more
persons.
SECTION 1.36. Section 439(a), Texas Probate Code, is
amended to read as follows:
(a) Sums remaining on deposit at the death of a party to a
joint account belong to the surviving party or parties against the
estate of the decedent if, by a written agreement signed by the
party who dies, the interest of such deceased party is made to
survive to the surviving party or parties. Notwithstanding any
other law, an agreement is sufficient to confer an absolute right of
survivorship on parties to a joint account under this subsection if
the agreement states in substantially the following form: "On the
death of one party to a joint account, all sums in the account on the
date of the death vest in and belong to the surviving party as his or
her separate property and estate." A survivorship agreement will
not be inferred from the mere fact that the account is a joint
account or that the account is designated as JT TEN, Joint Tenancy,
or joint, or with other similar language. If there are two or more
surviving parties, their respective ownerships during lifetime
shall be in proportion to their previous ownership interests under
Section 438 of this code augmented by an equal share for each
survivor of any interest the decedent may have owned in the account
immediately before his death, and the right of survivorship
continues between the surviving parties if a written agreement
signed by a party who dies so provides.
SECTION 1.37. Section 452, Texas Probate Code, is amended
to read as follows:
Sec. 452. FORMALITIES. (a) An agreement between spouses
creating a right of survivorship in community property must be in
writing and signed by both spouses. If an agreement in writing is
signed by both spouses, the agreement shall be sufficient to create
a right of survivorship in the community property described in the
agreement if it includes any of the following phrases:
(1) "with right of survivorship";
(2) "will become the property of the survivor";
(3) "will vest in and belong to the surviving spouse";
or
(4) "shall pass to the surviving spouse."
(b) An agreement that otherwise meets the requirements of
this part, however, shall be effective without including any of
those phrases.
(c) A survivorship agreement will not be inferred from the
mere fact that the account is a joint account or that the account is
designated as JT TEN, Joint Tenancy, or joint, or with other similar
language.
SECTION 1.38. Section 471, Texas Probate Code, is amended
by amending Subdivision (2) and adding Subdivision (2-a) to read as
follows:
(2) "Divorced individual" means an individual whose
marriage has been dissolved, [regardless of] whether by divorce,
[or] annulment, or a declaration that the marriage is void.
(2-a) "Relative" means an individual who is related to
another individual by consanguinity or affinity, as determined
under Sections 573.022 and 573.024, Government Code, respectively.
SECTION 1.39. Sections 472 and 473, Texas Probate Code, are
amended to read as follows:
Sec. 472. REVOCATION OF CERTAIN NONTESTAMENTARY TRANSFERS
ON DISSOLUTION OF MARRIAGE. (a) Except as otherwise provided by a
court order, the express terms of a trust instrument executed by a
divorced individual before the individual's marriage was
dissolved, or an express provision of a contract relating to the
division of the marital estate entered into between a divorced
individual and the individual's former spouse before, during, or
after the marriage, the dissolution of the marriage revokes the
following:
(1) a revocable disposition or appointment of property
made by a divorced individual to the individual's former spouse or
any relative of the former spouse who is not a relative of the
divorced individual in a trust instrument executed before the
dissolution of the marriage;
(2) a provision in a trust instrument executed by a
divorced individual before the dissolution of the marriage that
confers a general or special power of appointment on the
individual's former spouse or any relative of the former spouse who
is not a relative of the divorced individual; and
(3) a nomination in a trust instrument executed by a
divorced individual before the dissolution of the marriage that
nominates the individual's former spouse or any relative of the
former spouse who is not a relative of the divorced individual to
serve in a fiduciary or representative capacity, including as a
personal representative, executor, trustee, conservator, agent, or
guardian.
(b) After the dissolution of a marriage, an interest granted
in a provision of a trust instrument that is revoked under
Subsection (a)(1) or (2) of this section passes as if the former
spouse of the divorced individual who executed the trust instrument
and each relative of the former spouse who is not a relative of the
divorced individual disclaimed the interest granted in the
provision, and an interest granted in a provision of a trust
instrument that is revoked under Subsection (a)(3) of this section
passes as if the former spouse and each relative of the former
spouse who is not a relative of the divorced individual died
immediately before the dissolution of the marriage.
Sec. 473. LIABILITY FOR CERTAIN PAYMENTS, BENEFITS, AND
PROPERTY. (a) A bona fide purchaser of property from a divorced
individual's former spouse or any relative of the former spouse who
is not a relative of the divorced individual or a person who
receives from a divorced individual's former spouse or any relative
of the former spouse who is not a relative of the divorced
individual a payment, benefit, or property in partial or full
satisfaction of an enforceable obligation:
(1) is not required by this chapter to return the
payment, benefit, or property; and
(2) is not liable under this chapter for the amount of
the payment or the value of the property or benefit.
(b) A divorced individual's former spouse or any relative of
the former spouse who is not a relative of the divorced individual
who, not for value, receives a payment, benefit, or property to
which the former spouse or the relative of the former spouse who is
not a relative of the divorced individual is not entitled as a
result of Section 472(a) of this code:
(1) shall return the payment, benefit, or property to
the person who is otherwise entitled to the payment, benefit, or
property as provided by this chapter; or
(2) is personally liable to the person described by
Subdivision (1) of this subsection for the amount of the payment or
the value of the benefit or property received.
SECTION 1.40. Section 25.0022(i), Government Code, is
amended to read as follows:
(i) A judge assigned under this section has the
jurisdiction, powers, and duties given by Sections 4A, 4C, 4D, 4F,
4G, 4H, 5B, 606, 607, and 608, Texas Probate Code, to statutory
probate court judges by general law.
SECTION 1.41. (a) Sections 48(c), 70, and 251(f), Texas
Probate Code, are repealed.
(b) Notwithstanding the transfer of Section 5, Texas
Probate Code, to the Estates Code and redesignation as Section 5 of
that code effective January 1, 2014, by Section 2, Chapter 680 (H.B.
2502), Acts of the 81st Legislature, Regular Session, 2009, Section
5, Texas Probate Code, is repealed.
SECTION 1.42. (a) The changes in law made by Sections 4D,
4H, 6, 8, 48, and 49, Texas Probate Code, as amended by this
article, and Sections 6A, 6B, 6C, 6D, 8A, and 8B, Texas Probate
Code, as added by this article, apply only to an action filed or
other proceeding commenced on or after the effective date of this
Act. An action filed or other proceeding commenced before the
effective date of this Act is governed by the law in effect on the
date the action was filed or the proceeding was commenced, and the
former law is continued in effect for that purpose.
(b) The changes in law made by Section 37A(p), Texas Probate
Code, as added by this article, apply to all disclaimers made after
December 31, 2009, for decedents dying after December 31, 2009, but
before December 17, 2010.
(c) The changes in law made by Sections 64, 67, 84, 128A,
143, 145, 146, 149C, 227, 250, 256, 260, 271, 286, 293, 385, 471,
472, and 473, Texas Probate Code, as amended by this article, and
Sections 145A, 145B, and 145C, Texas Probate Code, as added by this
article, apply only to the estate of a decedent who dies on or after
the effective date of this Act. The estate of a decedent who dies
before the effective date of this Act is governed by the law in
effect on the date of the decedent's death, and the former law is
continued in effect for that purpose.
(d) The changes in law made by this article to Section 59,
Texas Probate Code, apply only to a will executed on or after the
effective date of this Act. A will executed before the effective
date of this Act is governed by the law in effect on the date the
will was executed, and the former law is continued in effect for
that purpose.
(e) The changes in law made by this article to Section 149B,
Texas Probate Code, apply only to a petition for an accounting and
distribution filed on or after the effective date of this Act. A
petition for an accounting and distribution filed before the
effective date of this Act is governed by the law in effect on the
date the petition is filed, and the former law is continued in
effect for that purpose.
(f) The changes in law made by this article to Section 151,
Texas Probate Code, apply only to a closing report or notice of
closing of an estate filed on or after the effective date of this
Act. A closing report or notice of closing of an estate filed
before the effective date of this Act is governed by the law in
effect on the date the closing report or notice is filed, and the
former law is continued in effect for that purpose.
(g) The changes in law made by this article to Sections 436
and 439, Texas Probate Code, apply only to multiple-party accounts
created or existing on or after the effective date of this Act and
are intended to clarify existing law.
(h) The changes in law made by this article to Section 452,
Texas Probate Code, apply only to agreements created or existing on
or after the effective date of this Act, and are intended to
overturn the ruling of the Texas Supreme Court in Holmes v. Beatty,
290 S.W.3d 852 (Tex. 2009).
SECTION 1.43. Section 37A(p), Texas Probate Code, as added
by this article, takes effect immediately if this Act receives a
vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect,
Section 37A(p), Texas Probate Code, as added by this article, takes
effect September 1, 2011.
ARTICLE 2. CHANGES TO ESTATES CODE
SECTION 2.01. The heading to Subtitle A, Title 2, Estates
Code, as effective January 1, 2014, is amended to read as follows:
SUBTITLE A. SCOPE, JURISDICTION, VENUE, AND COURTS
SECTION 2.02. Section 32.003, Estates Code, as effective
January 1, 2014, is amended by adding Subsection (b-1) and amending
Subsections (e) and (g) to read as follows:
(b-1) If a judge of a county court requests the assignment
of a statutory probate court judge to hear a contested matter in a
probate proceeding on the judge's own motion or on the motion of a
party to the proceeding as provided by this section, the judge may
request that the statutory probate court judge be assigned to the
entire proceeding on the judge's own motion or on the motion of a
party.
(e) A statutory probate court judge assigned to a contested
matter in a probate proceeding or to the entire proceeding under
this section has the jurisdiction and authority granted to a
statutory probate court by this subtitle. A statutory probate
court judge assigned to hear only the contested matter in a probate
proceeding shall, on [On] resolution of the [a contested] matter
[for which a statutory probate court judge is assigned under this
section], including any appeal of the matter, [the statutory
probate court judge shall] return the matter to the county court for
further proceedings not inconsistent with the orders of the
statutory probate court or court of appeals, as applicable. A
statutory probate court judge assigned to the entire probate
proceeding as provided by Subsection (b-1) shall, on resolution of
the contested matter in the proceeding, including any appeal of the
matter, return the entire proceeding to the county court for
further proceedings not inconsistent with the orders of the
statutory probate court or court of appeals, as applicable.
(g) If only the contested matter in a probate proceeding is
assigned to a statutory probate court judge under this section, or
if the contested matter in a probate proceeding is transferred to a
district court under this section, the [The] county court shall
continue to exercise jurisdiction over the management of the
estate, other than a contested matter, until final disposition of
the contested matter is made in accordance with this section. Any
[After a contested matter is transferred to a district court, any]
matter related to a [the] probate proceeding in which a contested
matter is transferred to a district court may be brought in the
district court. The district court in which a matter related to the
[probate] proceeding is filed may, on its own motion or on the
motion of any party, find that the matter is not a contested matter
and transfer the matter to the county court with jurisdiction of the
management of the estate.
SECTION 2.03. Section 32.007, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 32.007. CONCURRENT JURISDICTION WITH DISTRICT COURT.
A statutory probate court has concurrent jurisdiction with the
district court in:
(1) a personal injury, survival, or wrongful death
action by or against a person in the person's capacity as a personal
representative;
(2) an action by or against a trustee;
(3) an action involving an inter vivos trust,
testamentary trust, or charitable trust, including a charitable
trust as defined by Section 123.001, Property Code;
(4) an action involving a personal representative of
an estate in which each other party aligned with the personal
representative is not an interested person in that estate;
(5) an action against an agent or former agent under a
power of attorney arising out of the agent's performance of the
duties of an agent; and
(6) an action to determine the validity of a power of
attorney or to determine an agent's rights, powers, or duties under
a power of attorney.
SECTION 2.04. Subtitle A, Title 2, Estates Code, as
effective January 1, 2014, is amended by adding Chapter 33 to read
as follows:
CHAPTER 33. VENUE
SUBCHAPTER A. VENUE FOR CERTAIN PROCEEDINGS
Sec. 33.001. PROBATE OF WILLS AND GRANTING OF LETTERS
TESTAMENTARY AND OF ADMINISTRATION. Venue for a probate proceeding
to admit a will to probate or for the granting of letters
testamentary or of administration is:
(1) in the county in which the decedent resided, if the
decedent had a domicile or fixed place of residence in this state;
or
(2) with respect to a decedent who did not have a
domicile or fixed place of residence in this state:
(A) if the decedent died in this state, in the
county in which:
(i) the decedent's principal estate was
located at the time of the decedent's death; or
(ii) the decedent died; or
(B) if the decedent died outside of this state:
(i) in any county in this state in which the
decedent's nearest of kin reside; or
(ii) if there is no next of kin of the
decedent in this state, in the county in which the decedent's
principal estate was located at the time of the decedent's death.
Sec. 33.002. ACTION RELATED TO PROBATE PROCEEDING IN
STATUTORY PROBATE COURT. Except as provided by Section 33.003,
venue for any cause of action related to a probate proceeding
pending in a statutory probate court is proper in the statutory
probate court in which the decedent's estate is pending.
Sec. 33.003. CERTAIN ACTIONS INVOLVING PERSONAL
REPRESENTATIVE. Notwithstanding any other provision of this
chapter, the proper venue for an action by or against a personal
representative for personal injury, death, or property damages is
determined under Section 15.007, Civil Practice and Remedies Code.
Sec. 33.004. HEIRSHIP PROCEEDINGS. (a) Venue for a
proceeding to determine a decedent's heirs is in:
(1) the court of the county in which a proceeding
admitting the decedent's will to probate or administering the
decedent's estate was most recently pending; or
(2) the court of the county in which venue would be
proper for commencement of an administration of the decedent's
estate under Section 33.001 if:
(A) no will of the decedent has been admitted to
probate in this state and no administration of the decedent's
estate has been granted in this state; or
(B) the proceeding is commenced by the trustee of
a trust holding assets for the benefit of the decedent.
(b) Notwithstanding Subsection (a) and Section 33.001, if
there is no administration pending of the estate of a deceased ward
who died intestate, venue for a proceeding to determine the
deceased ward's heirs is in the probate court in which the
guardianship proceedings with respect to the ward's estate were
pending on the date of the ward's death. A proceeding described by
this subsection may not be brought as part of the guardianship
proceedings with respect to the ward's estate, but rather must be
filed as a separate cause in which the court may determine the
heirs' respective shares and interests in the estate as provided by
the laws of this state.
Sec. 33.005. CERTAIN ACTIONS INVOLVING BREACH OF FIDUCIARY
DUTY. Notwithstanding any other provision of this chapter, venue
for a proceeding brought by the attorney general alleging breach of
a fiduciary duty by a charitable entity or a fiduciary or managerial
agent of a charitable trust is determined under Section 123.005,
Property Code.
[Sections 33.006-33.050 reserved for expansion]
SUBCHAPTER B. DETERMINATION OF VENUE
Sec. 33.051. COMMENCEMENT OF PROCEEDING. For purposes of
this subchapter, a probate proceeding is considered commenced on
the filing of an application for the proceeding that avers facts
sufficient to confer venue on the court in which the application is
filed.
Sec. 33.052. CONCURRENT VENUE. (a) If applications for
probate proceedings involving the same estate are filed in two or
more courts having concurrent venue, the court in which a
proceeding involving the estate was first commenced has and retains
jurisdiction of the proceeding to the exclusion of the other court
or courts in which a proceeding involving the same estate was
commenced.
(b) The first commenced probate proceeding extends to all of
the decedent's property, including the decedent's estate property.
Sec. 33.053. PROBATE PROCEEDINGS IN MORE THAN ONE COUNTY.
If probate proceedings involving the same estate are commenced in
more than one county, each proceeding commenced in a county other
than the county in which a proceeding was first commenced is stayed
until the court in which the proceeding was first commenced makes a
final determination of venue.
Sec. 33.054. JURISDICTION TO DETERMINE VENUE. (a) Subject
to Sections 33.052 and 33.053, a court in which an application for a
probate proceeding is filed has jurisdiction to determine venue for
the proceeding and for any matter related to the proceeding.
(b) A court's determination under this section is not
subject to collateral attack.
Sec. 33.055. PROTECTION FOR CERTAIN PURCHASERS.
Notwithstanding Section 33.052, a bona fide purchaser of real
property who relied on a probate proceeding that was not the first
commenced proceeding, without knowledge that the proceeding was not
the first commenced proceeding, shall be protected with respect to
the purchase unless before the purchase an order rendered in the
first commenced proceeding admitting the decedent's will to
probate, determining the decedent's heirs, or granting
administration of the decedent's estate was recorded in the office
of the county clerk of the county in which the purchased property is
located.
[Sections 33.056-33.100 reserved for expansion]
SUBCHAPTER C. TRANSFER OF PROBATE PROCEEDING
Sec. 33.101. TRANSFER TO OTHER COUNTY IN WHICH VENUE IS
PROPER. If probate proceedings involving the same estate are
commenced in more than one county and the court making a
determination of venue as provided by Section 33.053 determines
that venue is proper in another county, the court clerk shall make
and retain a copy of the entire file in the case and transmit the
original file to the court in the county in which venue is proper.
The court to which the file is transmitted shall conduct the
proceeding in the same manner as if the proceeding had originally
been commenced in that county.
Sec. 33.102. TRANSFER FOR WANT OF VENUE. (a) If it appears
to the court at any time before the final order in a probate
proceeding is rendered that the court does not have priority of
venue over the proceeding, the court shall, on the application of an
interested person, transfer the proceeding to the proper county by
transmitting to the proper court in that county:
(1) the original file in the case; and
(2) certified copies of all entries that have been
made in the judge's probate docket in the proceeding.
(b) The court of the county to which a probate proceeding is
transferred under Subsection (a) shall complete the proceeding in
the same manner as if the proceeding had originally been commenced
in that county.
(c) If the question as to priority of venue is not raised
before a final order in a probate proceeding is announced, the
finality of the order is not affected by any error in venue.
Sec. 33.103. TRANSFER FOR CONVENIENCE. (a) The court may
order that a probate proceeding be transferred to the proper court
in another county in this state if it appears to the court at any
time before the proceeding is concluded that the transfer would be
in the best interest of:
(1) the estate; or
(2) if there is no administration of the estate, the
decedent's heirs or beneficiaries under the decedent's will.
(b) The clerk of the court from which the probate proceeding
described by Subsection (a) is transferred shall transmit to the
court to which the proceeding is transferred:
(1) the original file in the proceeding; and
(2) a certified copy of the index.
Sec. 33.104. VALIDATION OF PREVIOUS PROCEEDINGS. All
orders entered in connection with a probate proceeding that is
transferred to another county under a provision of this subchapter
are valid and shall be recognized in the court to which the
proceeding is transferred if the orders were made and entered in
conformance with the procedure prescribed by this code.
SECTION 2.05. Section 52.052(b), Estates Code, as effective
January 1, 2014, is amended to read as follows:
(b) Each case file must contain each order, judgment, and
proceeding of the court and any other probate filing with the court,
including each:
(1) application for the probate of a will;
(2) application for the granting of administration;
(3) citation and notice, whether published or posted,
including the return on the citation or notice;
(4) will and the testimony on which the will is
admitted to probate;
(5) bond and official oath;
(6) inventory, appraisement, and list of claims;
(6-a) affidavit in lieu of the inventory,
appraisement, and list of claims;
(7) exhibit and account;
(8) report of renting;
(9) application for sale or partition of real estate;
(10) report of sale;
(11) report of the commissioners of partition;
(12) application for authority to execute a lease for
mineral development, or for pooling or unitization of lands,
royalty, or other interest in minerals, or to lend or invest money;
and
(13) report of lending or investing money.
SECTION 2.06. Section 112.052, Estates Code, as effective
January 1, 2014, is amended by adding Subsection (d) to read as
follows:
(d) A survivorship agreement may not be inferred from the
mere fact that an account is a joint account or that an account is
designated as JT TEN, Joint Tenancy, or joint, or with other similar
language.
SECTION 2.07. Section 113.001, Estates Code, as effective
January 1, 2014, is amended by adding Subdivision (2-a) and
amending Subdivision (5) to read as follows:
(2-a) "Charitable organization" means any
corporation, community chest, fund, or foundation that is exempt
from federal income tax under Section 501(a) of the Internal
Revenue Code of 1986 by being listed as an exempt organization in
Section 501(c)(3) of that code.
(5) "P.O.D. payee" means a person or charitable
organization designated on a P.O.D. account as a person to whom the
account is payable on request after the death of one or more
persons.
SECTION 2.08. Section 113.002(b), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(b) A P.O.D. payee, including a charitable organization, or
beneficiary of a trust account is a party only after the account
becomes payable to the P.O.D. payee or beneficiary by reason of the
P.O.D. payee or beneficiary surviving the original payee or
trustee.
SECTION 2.09. Section 113.151(c), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(c) A survivorship agreement may not be inferred from the
mere fact that the account is a joint account or that the account is
designated as JT TEN, Joint Tenancy, or joint, or with other similar
language.
SECTION 2.10. Section 122.055(c), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(c) If the beneficiary is a charitable organization or a
governmental agency of the state, a written memorandum of
disclaimer of a present or future interest must be filed not later
than the later of:
(1) the first anniversary of the date the beneficiary
receives the notice required by Subchapter A, Chapter 308; or
(2) the expiration of the six-month period following
the date the personal representative files:
(A) the inventory, appraisement, and list of
claims due or owing to the estate; or
(B) the affidavit in lieu of the inventory,
appraisement, and list of claims.
SECTION 2.11. Section 122.056(b), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(b) If the beneficiary is a charitable organization or a
governmental agency of this state, notice of a disclaimer required
by Subsection (a) must be filed not later than the later of:
(1) the first anniversary of the date the beneficiary
receives the notice required by Subchapter A, Chapter 308; or
(2) the expiration of the six-month period following
the date the personal representative files:
(A) the inventory, appraisement, and list of
claims due or owing to the estate; or
(B) the affidavit in lieu of the inventory,
appraisement, and list of claims.
SECTION 2.12. Subchapter B, Chapter 122, Estates Code, as
effective January 1, 2014, is amended by adding Section 122.057 to
read as follows:
Sec. 122.057. EXTENSION OF TIME FOR CERTAIN DISCLAIMERS.
(a) This section does not apply to a disclaimer made by a
beneficiary that is a charitable organization or governmental
agency of the state.
(b) Notwithstanding the periods prescribed by Sections
122.055 and 122.056, a disclaimer with respect to an interest in
property passing by reason of the death of a decedent dying after
December 31, 2009, but before December 17, 2010, may be executed and
filed, and notice of the disclaimer may be given, not later than
nine months after December 17, 2010.
(c) A disclaimer filed and for which notice is given during
the extended period described by Subsection (b) is valid and shall
be treated as if the disclaimer had been filed and notice had been
given within the periods prescribed by Sections 122.055 and
122.056.
SECTION 2.13. Section 123.051, Estates Code, as effective
January 1, 2014, is amended by amending Subdivision (2) and adding
Subdivision (2-a) to read as follows:
(2) "Divorced individual" means an individual whose
marriage has been dissolved by divorce, [or] annulment, or a
declaration that the marriage is void.
(2-a) "Relative" means an individual who is related to
another individual by consanguinity or affinity, as determined
under Sections 573.022 and 573.024, Government Code, respectively.
SECTION 2.14. Section 123.052(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) The dissolution of the marriage revokes a provision in a
trust instrument that was executed by a divorced individual before
the divorced individual's marriage was dissolved and that:
(1) is a revocable disposition or appointment of
property made to the divorced individual's former spouse or any
relative of the former spouse who is not a relative of the divorced
individual;
(2) confers a general or special power of appointment
on the divorced individual's former spouse or any relative of the
former spouse who is not a relative of the divorced individual; or
(3) nominates the divorced individual's former spouse
or any relative of the former spouse who is not a relative of the
divorced individual to serve:
(A) as a personal representative, trustee,
conservator, agent, or guardian; or
(B) in another fiduciary or representative
capacity.
SECTION 2.15. Section 123.053, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 123.053. EFFECT OF REVOCATION. (a) An interest
granted in a provision of a trust instrument that is revoked under
Section 123.052(a)(1) or (2) passes as if the former spouse of the
divorced individual who executed the trust instrument and each
relative of the former spouse who is not a relative of the divorced
individual disclaimed the interest granted in the provision.
(b) An interest granted in a provision of a trust instrument
that is revoked under Section 123.052(a)(3) passes as if the former
spouse and each relative of the former spouse who is not a relative
of the divorced individual died immediately before the dissolution
of the marriage.
SECTION 2.16. Section 123.054, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 123.054. LIABILITY OF CERTAIN PURCHASERS OR RECIPIENTS
OF CERTAIN PAYMENTS, BENEFITS, OR PROPERTY. A bona fide purchaser
of property from a divorced individual's former spouse or any
relative of the former spouse who is not a relative of the divorced
individual or a person who receives from the former spouse or any
relative of the former spouse who is not a relative of the divorced
individual a payment, benefit, or property in partial or full
satisfaction of an enforceable obligation:
(1) is not required by this subchapter to return the
payment, benefit, or property; and
(2) is not liable under this subchapter for the amount
of the payment or the value of the property or benefit.
SECTION 2.17. Section 123.055, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 123.055. LIABILITY OF FORMER SPOUSE FOR CERTAIN
PAYMENTS, BENEFITS, OR PROPERTY. A divorced individual's former
spouse or any relative of the former spouse who is not a relative of
the divorced individual who, not for value, receives a payment,
benefit, or property to which the former spouse or the relative of
the former spouse who is not a relative of the divorced individual
is not entitled as a result of Sections 123.052(a) and (b):
(1) shall return the payment, benefit, or property to
the person who is entitled to the payment, benefit, or property
under this subchapter; or
(2) is personally liable to the person described by
Subdivision (1) for the amount of the payment or the value of the
benefit or property received, as applicable.
SECTION 2.18. Section 202.001, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 202.001. GENERAL AUTHORIZATION FOR AND NATURE OF
PROCEEDING TO DECLARE HEIRSHIP. In the manner provided by this
chapter, a court may determine through a proceeding to declare
heirship:
(1) the persons who are a decedent's heirs and only
heirs; and
(2) the heirs' respective shares and interests under
the laws of this state in the decedent's estate or, if applicable,
in the trust.
SECTION 2.19. Section 202.002, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 202.002. CIRCUMSTANCES UNDER WHICH PROCEEDING TO
DECLARE HEIRSHIP IS AUTHORIZED. A court may conduct a proceeding to
declare heirship when:
(1) a person dies intestate owning or entitled to
property in this state and there has been no administration in this
state of the person's estate; [or]
(2) there has been a will probated in this state or
elsewhere or an administration in this state of a [the] decedent's
estate, but:
(A) property in this state was omitted from the
will or administration; or
(B) no final disposition of property in this
state has been made in the administration; or
(3) it is necessary for the trustee of a trust holding
assets for the benefit of a decedent to determine the heirs of the
decedent.
SECTION 2.20. Section 202.004, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 202.004. PERSONS WHO MAY COMMENCE PROCEEDING TO
DECLARE HEIRSHIP. A proceeding to declare heirship of a decedent
may be commenced and maintained under a circumstance specified by
Section 202.002 by:
(1) the personal representative of the decedent's
estate;
(2) a person claiming to be a secured creditor or the
owner of all or part of the decedent's estate; [or]
(3) if the decedent was a ward with respect to whom a
guardian of the estate had been appointed, the guardian of the
estate, provided that the proceeding is commenced and maintained in
the probate court in which the proceedings for the guardianship of
the estate were pending at the time of the decedent's death;
(4) a party seeking the appointment of an independent
administrator under Section 401.003; or
(5) the trustee of a trust holding assets for the
benefit of a decedent.
SECTION 2.21. Section 202.005, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 202.005. APPLICATION FOR PROCEEDING TO DECLARE
HEIRSHIP. A person authorized by Section 202.004 to commence a
proceeding to declare heirship must file an application in a court
specified by Section 33.004 [202.003] to commence the proceeding.
The application must state:
(1) the decedent's name and time and place of death;
(2) the names and residences of the decedent's heirs,
the relationship of each heir to the decedent, and the true interest
of the applicant and each of the heirs in the decedent's estate or
in the trust, as applicable;
(3) if the time or place of the decedent's death or the
name or residence of an heir is not definitely known to the
applicant, all the material facts and circumstances with respect to
which the applicant has knowledge and information that might
reasonably tend to show the time or place of the decedent's death or
the name or residence of the heir;
(4) that all children born to or adopted by the
decedent have been listed;
(5) that each of the decedent's marriages has been
listed with:
(A) the date of the marriage;
(B) the name of the spouse;
(C) the date and place of termination if the
marriage was terminated; and
(D) other facts to show whether a spouse has had
an interest in the decedent's property;
(6) whether the decedent died testate and, if so, what
disposition has been made of the will;
(7) a general description of all property belonging to
the decedent's estate or held in trust for the benefit of the
decedent, as applicable; and
(8) an explanation for the omission from the
application of any of the information required by this section.
SECTION 2.22. Section 251.101, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 251.101. SELF-PROVED WILL. A self-proved will is a
will:
(1) to which a self-proving affidavit subscribed and
sworn to by the testator and witnesses is attached or annexed; or
(2) that is simultaneously executed, attested, and
made self-proved as provided by Section 251.1045 [is a self-proved
will].
SECTION 2.23. Section 251.102(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) A self-proved will may be admitted to probate without
the testimony of any subscribing witnesses if:
(1) the testator and witnesses execute a self-proving
affidavit; or
(2) the will is simultaneously executed, attested, and
made self-proved as provided by Section 251.1045.
SECTION 2.24. Section 251.104(b), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(b) A self-proving affidavit must be made by the testator
and by the attesting witnesses before an officer authorized to
administer oaths [under the laws of this state]. The officer shall
affix the officer's official seal to the self-proving affidavit.
SECTION 2.25. Subchapter C, Chapter 251, Estates Code, as
effective January 1, 2014, is amended by adding Section 251.1045 to
read as follows:
Sec. 251.1045. SIMULTANEOUS EXECUTION, ATTESTATION, AND
SELF-PROVING. (a) As an alternative to the self-proving of a will
by the affidavits of the testator and the attesting witnesses as
provided by Section 251.104, a will may be simultaneously executed,
attested, and made self-proved before an officer authorized to
administer oaths, and the testimony of the witnesses in the probate
of the will may be made unnecessary, with the inclusion in the will
of the following in form and contents substantially as follows:
I, ______________________, as testator, after being duly
sworn, declare to the undersigned witnesses and to the undersigned
authority that this instrument is my will, that I have willingly
made and executed it in the presence of the undersigned witnesses,
all of whom were present at the same time, as my free act and deed,
and that I have requested each of the undersigned witnesses to sign
this will in my presence and in the presence of each other. I now
sign this will in the presence of the attesting witnesses and the
undersigned authority on this ______ day of __________,
20________________.
____________________________________
Testator
The undersigned, __________ and __________, each being at
least fourteen years of age, after being duly sworn, declare to the
testator and to the undersigned authority that the testator
declared to us that this instrument is the testator's will and that
the testator requested us to act as witnesses to the testator's will
and signature. The testator then signed this will in our presence,
all of us being present at the same time. The testator is eighteen
years of age or over (or being under such age, is or has been
lawfully married, or is a member of the armed forces of the United
States or of an auxiliary of the armed forces of the United States
or of the United States Maritime Service), and we believe the
testator to be of sound mind. We now sign our names as attesting
witnesses in the presence of the testator, each other, and the
undersigned authority on this __________ day of __________,
20______________.
___________________________
Witness
___________________________
Witness
Subscribed and sworn to before me by the said _________,
testator, and by the said _____________ and ______________,
witnesses, this _____ day of __________, 20____________.
(SEAL)
(Signed)___________________
(Official Capacity of Officer)
(b) A will that is in substantial compliance with the form
provided by Subsection (a) is sufficient to self-prove a will.
SECTION 2.26. Chapter 254, Estates Code, as effective
January 1, 2014, is amended by adding Section 254.005 to read as
follows:
Sec. 254.005. FORFEITURE CLAUSE. A provision in a will that
would cause a forfeiture of or void a devise or provision in favor
of a person for bringing any court action, including contesting a
will, is unenforceable if:
(1) just cause existed for bringing the action; and
(2) the action was brought and maintained in good
faith.
SECTION 2.27. Section 255.053(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) If no provision is made in the testator's last will for
any child of the testator who is living when the testator executes
the will, a pretermitted child succeeds to the portion of the
testator's separate and community estate, other than any portion of
the estate devised to the pretermitted child's other parent, to
which the pretermitted child would have been entitled under Section
201.001 if the testator had died intestate without a surviving
spouse, except as limited by Section 255.056.
SECTION 2.28. Section 255.054, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 255.054. SUCCESSION BY PRETERMITTED CHILD IF TESTATOR
HAS NO LIVING CHILD AT WILL'S EXECUTION. If a testator has no child
living when the testator executes the testator's last will, a
pretermitted child succeeds to the portion of the testator's
separate and community estate, other than any portion of the estate
devised to the pretermitted child's other parent, to which the
pretermitted child would have been entitled under Section 201.001
if the testator had died intestate without a surviving spouse,
except as limited by Section 255.056.
SECTION 2.29. Subchapter B, Chapter 255, Estates Code, as
effective January 1, 2014, is amended by adding Section 255.056 to
read as follows:
Sec. 255.056. LIMITATION ON REDUCTION OF ESTATE PASSING TO
SURVIVING SPOUSE. If a pretermitted child's other parent is not the
surviving spouse of the testator, the portion of the testator's
estate to which the pretermitted child is entitled under Section
255.053(a) or 255.054 may not reduce the portion of the testator's
estate passing to the testator's surviving spouse by more than
one-half.
SECTION 2.30. (a) Section 256.052(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) An application for the probate of a written will must
state and aver the following to the extent each is known to the
applicant or can, with reasonable diligence, be ascertained by the
applicant:
(1) each applicant's name and domicile;
(2) the testator's name, domicile, and, if known, age,
on the date of the testator's death;
(3) the fact, time, and place of the testator's death;
(4) facts showing that the court with which the
application is filed has venue;
(5) that the testator owned property, including a
statement generally describing the property and the property's
probable value;
(6) the date of the will;
(7) the name and residence of:
(A) any executor named in the will or, if no
executor is named, of the person to whom the applicant desires that
letters be issued; and
(B) each subscribing witness to the will, if any;
(8) whether one or more children born to or adopted by
the testator after the testator executed the will survived the
testator and, if so, the name of each of those children;
(9) whether a marriage of the testator was ever
dissolved after the will was made [divorced] and, if so, when and
from whom;
(10) whether the state, a governmental agency of the
state, or a charitable organization is named in the will as a
devisee; and
(11) that the executor named in the will, the
applicant, or another person to whom the applicant desires that
letters be issued is not disqualified by law from accepting the
letters.
(b) If the amendment to Section 256.052(a), Estates Code,
made by this section conflicts with an amendment to Section
256.052(a), Estates Code, made by another Act of the 82nd
Legislature, Regular Session, 2011, relating to nonsubstantive
additions to and corrections in enacted codes, the amendment made
by this section controls, and the amendment made by the other Act
has no effect.
SECTION 2.31. Section 256.152, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 256.152. ADDITIONAL PROOF REQUIRED FOR PROBATE OF
WILL. (a) An applicant for the probate of a will must prove the
following to the court's satisfaction, in addition to the proof
required by Section 256.151, to obtain the probate:
(1) the testator did not revoke the will; and
(2) if the will is not self-proved [as provided by this
title], the testator:
(A) executed the will with the formalities and
solemnities and under the circumstances required by law to make the
will valid; and
(B) at the time of executing the will, was of
sound mind and:
(i) was 18 years of age or older;
(ii) was or had been married; or
(iii) was a member of the armed forces of
the United States, an auxiliary of the armed forces of the United
States, or the United States Maritime Service.
(b) A will that is self-proved as provided by Subchapter C,
Chapter 251, or, if executed in another state or a foreign country,
is self-proved in accordance with the laws of the state or foreign
country of the testator's domicile at the time of the execution
[this title] is not required to have any additional proof that the
will was executed with the formalities and solemnities and under
the circumstances required to make the will valid.
(c) For purposes of Subsection (b), a will is considered
self-proved if the will, or an affidavit of the testator and
attesting witnesses attached or annexed to the will, provides that:
(1) the testator declared that the testator signed the
instrument as the testator's will, the testator signed it willingly
or willingly directed another to sign for the testator, the
testator executed the will as the testator's free and voluntary act
for the purposes expressed in the instrument, the testator is of
sound mind and under no constraint or undue influence, and the
testator is eighteen years of age or over, or if under that age, was
or had been lawfully married, or was then a member of the armed
forces of the United States, an auxiliary of the armed forces of the
United States, or the United States Maritime Service; and
(2) the witnesses declared that the testator signed
the instrument as the testator's will, the testator signed it
willingly or willingly directed another to sign for the testator,
each of the witnesses, in the presence and hearing of the testator,
signed the will as witness to the testator's signing, and to the
best of their knowledge the testator was of sound mind and under no
constraint or undue influence, and the testator was eighteen years
of age or over, or if under that age, was or had been lawfully
married, or was then a member of the armed forces of the United
States, an auxiliary of the armed forces of the United States, or
the United States Maritime Service.
SECTION 2.32. (a) Section 257.051(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) An application for the probate of a will as a muniment of
title must state and aver the following to the extent each is known
to the applicant or can, with reasonable diligence, be ascertained
by the applicant:
(1) each applicant's name and domicile;
(2) the testator's name, domicile, and, if known, age,
on the date of the testator's death;
(3) the fact, time, and place of the testator's death;
(4) facts showing that the court with which the
application is filed has venue;
(5) that the testator owned property, including a
statement generally describing the property and the property's
probable value;
(6) the date of the will;
(7) the name and residence of:
(A) any executor named in the will; and
(B) each subscribing witness to the will, if any;
(8) whether one or more children born to or adopted by
the testator after the testator executed the will survived the
testator and, if so, the name of each of those children;
(9) that the testator's estate does not owe an unpaid
debt, other than any debt secured by a lien on real estate;
(10) whether a marriage of the testator was ever
dissolved after the will was made [divorced] and, if so, when and
from whom; and
(11) whether the state, a governmental agency of the
state, or a charitable organization is named in the will as a
devisee.
(b) If the amendment to Section 257.051(a), Estates Code,
made by this section conflicts with an amendment to Section
257.051(a), Estates Code, made by another Act of the 82nd
Legislature, Regular Session, 2011, relating to nonsubstantive
additions to and corrections in enacted codes, the amendment made
by this section controls, and the amendment made by the other Act
has no effect.
SECTION 2.33. Section 308.001, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 308.001. DEFINITION. In this subchapter,
"beneficiary" means a person, entity, state, governmental agency of
the state, charitable organization, or trustee of a trust entitled
to receive property under the terms of a decedent's will, to be
determined for purposes of this subchapter with the assumption that
each person who is alive on the date of the decedent's death
survives any period required to receive the bequest as specified by
the terms of the will. The term does not include a person, entity,
state, governmental agency of the state, charitable organization,
or trustee of a trust that would be entitled to receive property
under the terms of a decedent's will on the occurrence of a
contingency that has not occurred as of the date of the decedent's
death.
SECTION 2.34. Subchapter A, Chapter 308, Estates Code, as
effective January 1, 2014, is amended by adding Section 308.0015 to
read as follows:
Sec. 308.0015. APPLICATION. This subchapter does not apply
to the probate of a will as a muniment of title.
SECTION 2.35. Section 308.002, Estates Code, as effective
January 1, 2014, is amended by amending Subsections (b) and (c) and
adding Subsection (b-1) to read as follows:
(b) Notwithstanding the requirement under Subsection (a)
that the personal representative give the notice to the
beneficiary, the representative shall give the notice with respect
to a beneficiary described by this subsection as follows:
(1) if the beneficiary is a trustee of a trust, to the
trustee, unless the representative is the trustee, in which case
the representative shall, except as provided by Subsection (b-1),
give the notice to the person or class of persons first eligible to
receive the trust income, to be determined for purposes of this
subdivision as if the trust were in existence on the date of the
decedent's death;
(2) if the beneficiary has a court-appointed guardian
or conservator, to that guardian or conservator;
(3) if the beneficiary is a minor for whom no guardian
or conservator has been appointed, to a parent of the minor; and
(4) if the beneficiary is a charity that for any reason
cannot be notified, to the attorney general.
(b-1) The personal representative is not required to give
the notice otherwise required by Subsection (b)(1) to a person
eligible to receive trust income at the sole discretion of the
trustee of a trust if:
(1) the representative has given the notice to an
ancestor of the person who has a similar interest in the trust; and
(2) no apparent conflict exists between the ancestor
and the person eligible to receive trust income.
(c) A personal representative is not required to give the
notice otherwise required by this section to a beneficiary who:
(1) has made an appearance in the proceeding with
respect to the decedent's estate before the will was admitted to
probate; [or]
(2) is entitled to receive aggregate gifts under the
will with an estimated value of $2,000 or less;
(3) has received all gifts to which the beneficiary is
entitled under the will not later than the 60th day after the date
of the order admitting the decedent's will to probate; or
(4) has received a copy of the will that was admitted
to probate or a written summary of the gifts to the beneficiary
under the will and has waived the right to receive the notice in an
instrument that:
(A) either acknowledges the receipt of the copy
of the will or includes the written summary of the gifts to the
beneficiary under the will;
(B) is signed by the beneficiary; and
(C) is filed with the court.
SECTION 2.36. Section 308.003, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 308.003. CONTENTS OF NOTICE. The notice required by
Section 308.002 must include:
(1) [state:
[(A)] the name and address of the beneficiary to
whom the notice is given or, for a beneficiary described by Section
308.002(b), the name and address of the beneficiary for whom the
notice is given and of the person to whom the notice is given;
(2) [(B)] the decedent's name;
(3) a statement [(C)] that the decedent's will has been
admitted to probate;
(4) a statement [(D)] that the beneficiary to whom or
for whom the notice is given is named as a beneficiary in the will;
[and]
(5) [(E)] the personal representative's name and
contact information; and
(6) either:
(A) [(2) contain as attachments] a copy of the
will that was admitted to probate and of the order admitting the
will to probate; or
(B) a summary of the gifts to the beneficiary
under the will, the court in which the will was admitted to probate,
the docket number assigned to the estate, the date the will was
admitted to probate, and, if different, the date the court
appointed the personal representative.
SECTION 2.37. Section 308.004, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 308.004. AFFIDAVIT OR CERTIFICATE. (a) Not later than
the 90th day after the date of an order admitting a will to probate,
the personal representative shall file with the clerk of the court
in which the decedent's estate is pending a sworn affidavit of the
representative or a certificate signed by the representative's
attorney stating:
(1) for each beneficiary to whom notice was required
to be given under this subchapter, the name and address of the
beneficiary to whom the representative gave the notice or, for a
beneficiary described by Section 308.002(b), the name and address
of the beneficiary and of the person to whom the notice was given;
(2) the name and address of each beneficiary to whom
notice was not required to be given under Section 308.002(c)(2),
(3), or (4) [who filed a waiver of the notice];
(3) the name of each beneficiary whose identity or
address could not be ascertained despite the representative's
exercise of reasonable diligence; and
(4) any other information necessary to explain the
representative's inability to give the notice to or for any
beneficiary as required by this subchapter.
(b) The affidavit or certificate required by Subsection (a)
may be included with any pleading or other document filed with the
court clerk, including the inventory, appraisement, and list of
claims, an affidavit in lieu of the inventory, appraisement, and
list of claims, or an application for an extension of the deadline
to file the inventory, appraisement, and list of claims or an
affidavit in lieu of the inventory, appraisement, and list of
claims, provided that the pleading or other document is filed not
later than the date the affidavit or certificate is required to be
filed under Subsection (a).
SECTION 2.38. The heading to Subchapter B, Chapter 309,
Estates Code, as effective January 1, 2014, is amended to read as
follows:
SUBCHAPTER B. REQUIREMENTS FOR INVENTORY, APPRAISEMENT, AND LIST
OF CLAIMS; AFFIDAVIT IN LIEU OF INVENTORY, APPRAISEMENT, AND LIST
OF CLAIMS
SECTION 2.39. Section 309.051(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) Except as provided by Subsection (c) or unless a longer
period is granted by the court, before the 91st day after the date
the personal representative qualifies, the representative shall
prepare and file with the court clerk a single written instrument
that contains a verified, full, and detailed inventory of all
estate property that has come into the representative's possession
or of which the representative has knowledge. The inventory must:
(1) include:
(A) all estate real property located in this
state; and
(B) all estate personal property regardless of
where the property is located; and
(2) specify[:
[(A)] which portion of the property, if any, is
separate property and which, if any, is community property[; and
[(B) if estate property is owned in common with
others, the interest of the estate in that property and the names
and relationship, if known, of the co-owners].
SECTION 2.40. Section 309.052, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 309.052. LIST OF CLAIMS. A complete list of claims due
or owing to the estate must be attached to the inventory and
appraisement required by Section 309.051. The list of claims must
state:
(1) the name and, if known, address of each person
indebted to the estate; and
(2) regarding each claim:
(A) the nature of the debt, whether by note,
bill, bond, or other written obligation, or by account or verbal
contract;
(B) the date the debt was incurred;
(C) the date the debt was or is due;
(D) the amount of the claim, the rate of interest
on the claim, and the period for which the claim bears interest; and
(E) whether the claim is separate property or
community property[; and
[(F) if any portion of the claim is held in common
with others, the interest of the estate in the claim and the names
and relationships, if any, of the other part owners].
SECTION 2.41. Section 309.055, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 309.055. FAILURE OF JOINT PERSONAL REPRESENTATIVES TO
FILE INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS OR AFFIDAVIT IN
LIEU OF INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS. (a) If more
than one personal representative qualifies to serve, any one or
more of the representatives, on the neglect of the other
representatives, may make and file an inventory, appraisement, and
list of claims or an affidavit in lieu of an inventory,
appraisement, and list of claims.
(b) A personal representative who neglects to make or file
an inventory, appraisement, and list of claims or an affidavit in
lieu of an inventory, appraisement, and list of claims may not
interfere with and does not have any power over the estate after
another representative makes and files an inventory, appraisement,
and list of claims or an affidavit in lieu of an inventory,
appraisement, and list of claims.
(c) The personal representative who files the inventory,
appraisement, and list of claims or the affidavit in lieu of an
inventory, appraisement, and list of claims is entitled to the
whole administration unless, before the 61st day after the date the
representative files the inventory, appraisement, and list of
claims or the affidavit in lieu of an inventory, appraisement, and
list of claims, one or more delinquent representatives file with
the court a written, sworn, and reasonable excuse that the court
considers satisfactory. The court shall enter an order removing
one or more delinquent representatives and revoking those
representatives' letters if:
(1) an excuse is not filed; or
(2) the court does not consider the filed excuse
sufficient.
SECTION 2.42. Subchapter B, Chapter 309, Estates Code, as
effective January 1, 2014, is amended by adding Section 309.056 to
read as follows:
Sec. 309.056. AFFIDAVIT IN LIEU OF INVENTORY, APPRAISEMENT,
AND LIST OF CLAIMS. (a) In this section, "beneficiary" means a
person, entity, state, governmental agency of the state, charitable
organization, or trust entitled to receive property:
(1) under the terms of a decedent's will, to be
determined for purposes of this section with the assumption that
each person who is alive on the date of the decedent's death
survives any period required to receive the bequest as specified by
the terms of the will; or
(2) as an heir of the decedent.
(b) Notwithstanding Sections 309.051 and 309.052, if there
are no unpaid debts, except for secured debts, taxes, and
administration expenses, at the time the inventory is due,
including any extensions, an independent executor may file with the
court clerk, in lieu of the inventory, appraisement, and list of
claims, an affidavit stating that all debts, except for secured
debts, taxes, and administration expenses, are paid and that all
beneficiaries have received a verified, full, and detailed
inventory and appraisement. The affidavit in lieu of the
inventory, appraisement, and list of claims must be filed within
the 90-day period prescribed by Section 309.051(a), unless the
court grants an extension.
(c) If the independent executor files an affidavit in lieu
of the inventory, appraisement, and list of claims as authorized
under Subsection (b):
(1) any person interested in the estate, including a
possible heir of the decedent or a beneficiary under a prior will of
the decedent, is entitled to receive a copy of the inventory,
appraisement, and list of claims from the independent executor on
written request;
(2) the independent executor may provide a copy of the
inventory, appraisement, and list of claims to any person the
independent executor believes in good faith may be a person
interested in the estate without liability to the estate or its
beneficiaries; and
(3) a person interested in the estate may apply to the
court for an order compelling compliance with Subdivision (1), and
the court, in its discretion, may compel the independent executor
to provide a copy of the inventory, appraisement, and list of claims
to the interested person or may deny the application.
SECTION 2.43. Section 309.101, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 309.101. DISCOVERY OF ADDITIONAL PROPERTY OR CLAIMS.
(a) If after the filing of the inventory, appraisement, and list of
claims the personal representative acquires possession or
knowledge of property or claims of the estate not included in the
inventory, appraisement, and list of claims the representative
shall promptly file with the court clerk a verified, full, and
detailed supplemental inventory, appraisement, and list of claims.
(b) If after the filing of the affidavit in lieu of the
inventory, appraisement, and list of claims the personal
representative acquires possession or knowledge of property or
claims of the estate not included in the inventory and appraisement
given to the beneficiaries the representative shall promptly file
with the court clerk a supplemental affidavit in lieu of the
inventory, appraisement, and list of claims stating that all
beneficiaries have received a verified, full, and detailed
supplemental inventory and appraisement.
SECTION 2.44. Section 352.004, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 352.004. DENIAL OF COMPENSATION. The court may, on
application of an interested person or on the court's own motion,
wholly or partly deny a commission allowed by this subchapter if:
(1) the court finds that the executor or administrator
has not taken care of and managed estate property prudently; or
(2) the executor or administrator has been removed
under Section 149C or Subchapter B, Chapter 361.
SECTION 2.45. Sections 353.051(a) and (b), Estates Code, as
effective January 1, 2014, are amended to read as follows:
(a) Unless an application and verified affidavit are filed
as provided by Subsection (b), immediately after the inventory,
appraisement, and list of claims of an estate are approved or after
the affidavit in lieu of the inventory, appraisement, and list of
claims is filed, the court by order shall set aside:
(1) the homestead for the use and benefit of the
decedent's surviving spouse and minor children; and
(2) all other estate property that is exempt from
execution or forced sale by the constitution and laws of this state
for the use and benefit of the decedent's:
(A) surviving spouse and minor children; and
(B) unmarried children remaining with the
decedent's family.
(b) Before the inventory, appraisement, and list of claims
of an estate are approved or, if applicable, before the affidavit in
lieu of the inventory, appraisement, and list of claims is filed:
(1) the decedent's surviving spouse or any other
person authorized to act on behalf of the decedent's minor children
may apply to the court to have exempt property, including the
homestead, set aside by filing an application and a verified
affidavit listing all property that the applicant claims is exempt;
and
(2) any of the decedent's unmarried children remaining
with the decedent's family may apply to the court to have all exempt
property, other than the homestead, set aside by filing an
application and a verified affidavit listing all property, other
than the homestead, that the applicant claims is exempt.
SECTION 2.46. Sections 353.101(a) and (b), Estates Code, as
effective January 1, 2014, are amended to read as follows:
(a) Unless an application and verified affidavit are filed
as provided by Subsection (b), immediately after the inventory,
appraisement, and list of claims of an estate are approved or after
the affidavit in lieu of the inventory, appraisement, and list of
claims is filed, the court shall fix a family allowance for the
support of the decedent's surviving spouse and minor children.
(b) Before the inventory, appraisement, and list of claims
of an estate are approved or, if applicable, before the affidavit in
lieu of the inventory, appraisement, and list of claims is filed,
the decedent's surviving spouse or any other person authorized to
act on behalf of the decedent's minor children may apply to the
court to have the court fix the family allowance by filing an
application and a verified affidavit describing:
(1) the amount necessary for the maintenance of the
surviving spouse and the decedent's minor children for one year
after the date of the decedent's death; and
(2) the surviving spouse's separate property and any
property that the decedent's minor children have in their own
right.
SECTION 2.47. Section 353.107(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) The court shall, as soon as the inventory, appraisement,
and list of claims are returned and approved or the affidavit in
lieu of the inventory, appraisement, and list of claims is filed,
order the sale of estate property for cash in an amount that will be
sufficient to raise the amount of the family allowance, or a portion
of that amount, as necessary, if:
(1) the decedent had no personal property that the
surviving spouse or the guardian of the decedent's minor children
is willing to take for the family allowance or the decedent had
insufficient personal property; and
(2) there are not sufficient estate funds in the
executor's or administrator's possession to pay the amount of the
family allowance or a portion of that amount, as applicable.
SECTION 2.48. Section 354.001(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) If, after a personal representative of an estate has
filed the inventory, appraisement, and list of claims or the
affidavit in lieu of the inventory, appraisement, and list of
claims as provided [required] by Chapter 309, it is established
that the decedent's estate, excluding any homestead, exempt
property, and family allowance to the decedent's surviving spouse
and minor children, does not exceed the amount sufficient to pay the
claims against the estate classified as Classes 1 through 4 under
Section 355.102, the representative shall:
(1) on order of the court, pay those claims in the
order provided and to the extent permitted by the assets of the
estate subject to the payment of those claims; and
(2) after paying the claims in accordance with
Subdivision (1), present to the court the representative's account
with an application for the settlement and allowance of the
account.
SECTION 2.49. Section 360.253(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) If a spouse dies leaving community property, the
surviving spouse, at any time after letters testamentary or of
administration have been granted and an inventory, appraisement,
and list of claims of the estate have been returned or an affidavit
in lieu of the inventory, appraisement, and list of claims has been
filed, may apply in writing to the court that granted the letters
for a partition of the community property.
SECTION 2.50. The heading to Section 361.155, Estates Code,
as effective January 1, 2014, is amended to read as follows:
Sec. 361.155. SUCCESSOR REPRESENTATIVE TO RETURN
INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS OR AFFIDAVIT IN LIEU OF
INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS.
SECTION 2.51. Section 361.155(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) An appointee who has qualified to succeed a former
personal representative, before the 91st day after the date the
personal representative qualifies, shall make and return to the
court an inventory, appraisement, and list of claims of the estate,
or if the appointee is an independent executor, shall make and
return to the court that document or file an affidavit in lieu of
the inventory, appraisement, and list of claims [before the 91st
day after the date the personal representative qualifies], in the
manner provided for [required of] an original appointee, and shall
also return additional inventories, appraisements, and lists of
claims and additional affidavits in the manner provided for
[required of] an original appointee.
SECTION 2.52. Subtitle I, Title 2, Estates Code, as
effective January 1, 2014, is amended by adding Chapters 401, 402,
403, 404, and 405 to read as follows:
CHAPTER 401. CREATION
Sec. 401.001. EXPRESSION OF TESTATOR'S INTENT IN WILL. (a)
Any person capable of making a will may provide in the person's will
that no other action shall be had in the probate court in relation
to the settlement of the person's estate than the probating and
recording of the will and the return of an inventory, appraisement,
and list of claims of the person's estate.
(b) Any person capable of making a will may provide in the
person's will that no independent administration of his or her
estate may be allowed. In such case the person's estate, if
administered, shall be administered and settled under the direction
of the probate court as other estates are required to be settled and
not as an independent administration.
Sec. 401.002. CREATION IN TESTATE ESTATE BY AGREEMENT. (a)
Except as provided in Section 401.001(b), if a decedent's will
names an executor but the will does not provide for independent
administration as provided in Section 401.001(a), all of the
distributees of the decedent may agree on the advisability of
having an independent administration and collectively designate in
the application for probate of the decedent's will the executor
named in the will to serve as independent executor and request in
the application that no other action shall be had in the probate
court in relation to the settlement of the decedent's estate other
than the probating and recording of the decedent's will and the
return of an inventory, appraisement, and list of claims of the
decedent's estate. In such case the probate court shall enter an
order granting independent administration and appointing the
person, firm, or corporation designated in the application as
independent executor, unless the court finds that it would not be in
the best interest of the estate to do so.
(b) Except as provided in Section 401.001(b), in situations
where no executor is named in the decedent's will, or in situations
where each executor named in the will is deceased or is disqualified
to serve as executor or indicates by affidavit filed with the
application for administration of the decedent's estate the
executor's inability or unwillingness to serve as executor, all of
the distributees of the decedent may agree on the advisability of
having an independent administration and collectively designate in
the application for probate of the decedent's will a qualified
person, firm, or corporation to serve as independent administrator
and request in the application that no other action shall be had in
the probate court in relation to the settlement of the decedent's
estate other than the probating and recording of the decedent's
will and the return of an inventory, appraisement, and list of
claims of the decedent's estate. In such case the probate court
shall enter an order granting independent administration and
appointing the person, firm, or corporation designated in the
application as independent administrator, unless the court finds
that it would not be in the best interest of the estate to do so.
Sec. 401.003. CREATION IN INTESTATE ESTATE BY AGREEMENT.
(a) All of the distributees of a decedent dying intestate may agree
on the advisability of having an independent administration and
collectively designate in the application for administration of the
decedent's estate a qualified person, firm, or corporation to serve
as independent administrator and request in the application that no
other action shall be had in the probate court in relation to the
settlement of the decedent's estate other than the return of an
inventory, appraisement, and list of claims of the decedent's
estate. In such case the probate court shall enter an order
granting independent administration and appointing the person,
firm, or corporation designated in the application as independent
administrator, unless the court finds that it would not be in the
best interest of the estate to do so.
(b) The court may not appoint an independent administrator
to serve in an intestate administration unless and until the
parties seeking appointment of the independent administrator have
been determined, through a proceeding to declare heirship under
Chapter 202, to constitute all of the decedent's heirs.
Sec. 401.004. MEANS OF ESTABLISHING DISTRIBUTEE CONSENT.
(a) This section applies to the creation of an independent
administration under Section 401.002 or 401.003.
(b) All distributees shall be served with citation and
notice of the application for independent administration unless the
distributee waives the issuance or service of citation or enters an
appearance in court.
(c) If a distributee is an incapacitated person, the
guardian of the person of the distributee may sign the application
on behalf of the distributee. If the probate court finds that
either the granting of independent administration or the
appointment of the person, firm, or corporation designated in the
application as independent executor would not be in the best
interest of the incapacitated person, then, notwithstanding
anything to the contrary in Section 401.002 or 401.003, the court
may not enter an order granting independent administration of the
estate. If a distributee who is an incapacitated person has no
guardian of the person, the probate court may appoint a guardian ad
litem to make application on behalf of the incapacitated person if
the court considers such an appointment necessary to protect the
interest of the distributees. Alternatively, if the distributee
who is an incapacitated person is a minor and has no guardian of the
person, the natural guardian or guardians of the minor may consent
on the minor's behalf if there is no conflict of interest between
the minor and the natural guardian or guardians.
(d) If a trust is created in the decedent's will, the person
or class of persons first eligible to receive the income from the
trust, when determined as if the trust were to be in existence on
the date of the decedent's death, shall, for the purposes of Section
401.002, be considered to be the distributee or distributees on
behalf of the trust, and any other trust or trusts coming into
existence on the termination of the trust, and are authorized to
apply for independent administration on behalf of the trusts
without the consent or agreement of the trustee or any other
beneficiary of the trust, or the trustee or any beneficiary of any
other trust which may come into existence on the termination of the
trust. If a trust beneficiary who is considered to be a distributee
under this subsection is an incapacitated person, the trustee or
cotrustee may file the application or give the consent, provided
that the trustee or cotrustee is not the person proposed to serve as
the independent executor.
(e) If a life estate is created either in the decedent's
will or by law, the life tenant or life tenants, when determined as
if the life estate were to commence on the date of the decedent's
death, shall, for the purposes of Section 401.002 or 401.003, be
considered to be the distributee or distributees on behalf of the
entire estate created, and are authorized to apply for independent
administration on behalf of the estate without the consent or
approval of any remainderman.
(f) If a decedent's will contains a provision that a
distributee must survive the decedent by a prescribed period of
time in order to take under the decedent's will, then, for the
purposes of determining who shall be the distributee under Section
401.002 and under Subsection (c), it shall be presumed that the
distributees living at the time of the filing of the application for
probate of the decedent's will survived the decedent by the
prescribed period.
(g) In the case of all decedents, whether dying testate or
intestate, for the purposes of determining who shall be the
distributees under Section 401.002 or 401.003 and under Subsection
(c), it shall be presumed that no distributee living at the time the
application for independent administration is filed shall
subsequently disclaim any portion of the distributee's interest in
the decedent's estate.
(h) If a distributee of a decedent's estate dies and if by
virtue of the distributee's death the distributee's share of the
decedent's estate becomes payable to the distributee's estate, the
deceased distributee's personal representative may sign the
application for independent administration of the decedent's
estate under Section 401.002 or 401.003 and under Subsection (c).
Sec. 401.005. BOND; WAIVER OF BOND. (a) If an independent
administration of a decedent's estate is created under Section
401.002 or 401.003, then, unless the probate court waives bond on
application for waiver, the independent executor shall be required
to enter into bond payable to and to be approved by the judge and the
judge's successors in a sum that is found by the judge to be
adequate under all circumstances, or a bond with one surety in a sum
that is found by the judge to be adequate under all circumstances,
if the surety is an authorized corporate surety.
(b) This section does not repeal any other section of this
title.
Sec. 401.006. GRANTING POWER OF SALE BY AGREEMENT. In a
situation in which a decedent does not have a will, or a decedent's
will does not contain language authorizing the personal
representative to sell real property or contains language that is
not sufficient to grant the representative that authority, the
court may include in an order appointing an independent executor
under Section 401.002 or 401.003 any general or specific authority
regarding the power of the independent executor to sell real
property that may be consented to by the beneficiaries who are to
receive any interest in the real property in the application for
independent administration or in their consents to the independent
administration. The independent executor, in such event, may sell
the real property under the authority granted in the court order
without the further consent of those beneficiaries.
Sec. 401.007. NO LIABILITY OF JUDGE. Absent proof of fraud
or collusion on the part of a judge, no judge may be held civilly
liable for the commission of misdeeds or the omission of any
required act of any person, firm, or corporation designated as an
independent executor under Section 401.002 or 401.003. Section
351.354 does not apply to the appointment of an independent
executor under Section 401.002 or 401.003.
Sec. 401.008. PERSON DECLINING TO SERVE. A person who
declines to serve or resigns as independent executor of a
decedent's estate may be appointed an executor or administrator of
the estate if the estate will be administered and settled under the
direction of the court.
CHAPTER 402. ADMINISTRATION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 402.001. GENERAL SCOPE AND EXERCISE OF POWERS. When an
independent administration has been created, and the order
appointing an independent executor has been entered by the probate
court, and the inventory, appraisement, and list of claims has been
filed by the independent executor and approved by the court or an
affidavit in lieu of the inventory, appraisement, and list of
claims has been filed by the independent executor, as long as the
estate is represented by an independent executor, further action of
any nature may not be had in the probate court except where this
title specifically and explicitly provides for some action in the
court.
Sec. 402.002. INDEPENDENT EXECUTORS MAY ACT WITHOUT COURT
APPROVAL. Unless this title specifically provides otherwise, any
action that a personal representative subject to court supervision
may take with or without a court order may be taken by an
independent executor without a court order. The other provisions
of this subtitle are designed to provide additional guidance
regarding independent administrations in specified situations, and
are not designed to limit by omission or otherwise the application
of the general principles set forth in this chapter.
[Sections 402.003-402.050 reserved for expansion]
SUBCHAPTER B. POWER OF SALE
Sec. 402.051. DEFINITION OF INDEPENDENT EXECUTOR. In this
subchapter, "independent executor" does not include an independent
administrator.
Sec. 402.052. POWER OF SALE OF ESTATE PROPERTY GENERALLY.
Unless limited by the terms of a will, an independent executor, in
addition to any power of sale of estate property given in the will,
and an independent administrator have the same power of sale for the
same purposes as a personal representative has in a supervised
administration, but without the requirement of court approval. The
procedural requirements applicable to a supervised administration
do not apply.
Sec. 402.053. PROTECTION OF PERSON PURCHASING ESTATE
PROPERTY. (a) A person who is not a devisee or heir is not required
to inquire into the power of sale of estate property of the
independent executor or independent administrator or the propriety
of the exercise of the power of sale if the person deals with the
independent executor or independent administrator in good faith
and:
(1) a power of sale is granted to the independent
executor in the will;
(2) a power of sale is granted under Section 401.006 in
the court order appointing the independent executor or independent
administrator; or
(3) the independent executor or independent
administrator provides an affidavit, executed and sworn to under
oath and recorded in the deed records of the county where the
property is located, that the sale is necessary or advisable for any
of the purposes described in Section 356.251(1).
(b) As to acts undertaken in good faith reliance, the
affidavit described by Subsection (a)(3) is conclusive proof, as
between a purchaser of property from the estate, and the personal
representative of an estate or the heirs and distributees of the
estate, with respect to the authority of the independent executor
or independent administrator to sell the property. The signature
or joinder of a devisee or heir who has an interest in the property
being sold as described in this section is not necessary for the
purchaser to obtain all right, title, and interest of the estate in
the property being sold.
(c) This subchapter does not relieve the independent
executor or independent administrator from any duty owed to a
devisee or heir in relation, directly or indirectly, to the sale.
Sec. 402.054. NO LIMITATION ON OTHER ACTION. This
subchapter does not limit the authority of an independent executor
to take any other action without court supervision or approval with
respect to estate assets that may take place in a supervised
administration, for purposes and within the scope otherwise
authorized by this title, including the authority to enter into a
lease and to borrow money.
CHAPTER 403. EXEMPTIONS AND ALLOWANCES; CLAIMS
SUBCHAPTER A. EXEMPTIONS AND ALLOWANCES
Sec. 403.001. SETTING ASIDE EXEMPT PROPERTY AND ALLOWANCES.
The independent executor shall set aside and deliver to those
entitled exempt property and allowances for support, and allowances
in lieu of exempt property, as prescribed in this title, to the same
extent and result as if the independent executor's actions had been
accomplished in, and under orders of, the court.
[Sections 403.002-403.050 reserved for expansion]
SUBCHAPTER B. CLAIMS
Sec. 403.051. DUTY OF INDEPENDENT EXECUTOR. (a) An
independent executor, in the administration of an estate,
independently of and without application to, or any action in or by
the court:
(1) shall give the notices required under Sections
308.051 and 308.053;
(2) may give the notice to an unsecured creditor with a
claim for money permitted under Section 308.054 and bar a claim
under Section 403.055; and
(3) may approve or reject any claim, or take no action
on a claim, and shall classify and pay claims approved or
established by suit against the estate in the same order of
priority, classification, and proration prescribed in this title.
(b) To be effective, the notice prescribed under Subsection
(a)(2) must include, in addition to the other information required
by Section 308.054, a statement that a claim may be effectively
presented by only one of the methods prescribed by this subchapter.
Sec. 403.052. SECURED CLAIMS FOR MONEY. Within six months
after the date letters are granted or within four months after the
date notice is received under Section 308.053, whichever is later,
a creditor with a claim for money secured by property of the estate
must give notice to the independent executor of the creditor's
election to have the creditor's claim approved as a matured secured
claim to be paid in due course of administration. In addition to
giving the notice within this period, a creditor whose claim is
secured by real property shall record a notice of the creditor's
election under this section in the deed records of the county in
which the real property is located. If no election to be a matured
secured creditor is made, or the election is made, but not within
the prescribed period, or is made within the prescribed period but
the creditor has a lien against real property and fails to record
notice of the claim in the deed records as required within the
prescribed period, the claim shall be a preferred debt and lien
against the specific property securing the indebtedness and shall
be paid according to the terms of the contract that secured the
lien, and the claim may not be asserted against other assets of the
estate. The independent executor may pay the claim before maturity
if it is determined to be in the best interest of the estate to do
so.
Sec. 403.053. MATURED SECURED CLAIMS. (a) A claim approved
as a matured secured claim under Section 403.052 remains secured by
any lien or security interest against the specific property
securing payment of the claim but subordinated to the payment from
the property of claims having a higher classification under Section
355.102. However, the secured creditor:
(1) is not entitled to exercise any remedies in a
manner that prevents the payment of the higher priority claims and
allowances; and
(2) during the administration of the estate, is not
entitled to exercise any contractual collection rights, including
the power to foreclose, without either the prior written approval
of the independent executor or court approval.
(b) Subsection (a) may not be construed to suspend or
otherwise prevent a creditor with a matured secured claim from
seeking judicial relief of any kind or from executing any judgment
against an independent executor. Except with respect to real
property, any third party acting in good faith may obtain good title
with respect to an estate asset acquired through a secured
creditor's extrajudicial collection rights, without regard to
whether the creditor had the right to collect the asset or whether
the creditor acted improperly in exercising those rights during an
estate administration due to having elected matured secured status.
(c) If a claim approved or established by suit as a matured
secured claim is secured by property passing to one or more devisees
in accordance with Subchapter G, Chapter 255, the independent
executor shall collect from the devisees the amount of the debt and
pay that amount to the claimant or shall sell the property and pay
out of the sale proceeds the claim and associated expenses of sale
consistent with the provisions of Sections 355.153(b), (c), (d),
and (e) applicable to court supervised administrations.
Sec. 403.054. PREFERRED DEBT AND LIEN CLAIMS. During an
independent administration, a secured creditor whose claim is a
preferred debt and lien against property securing the indebtedness
under Section 403.052 is free to exercise any judicial or
extrajudicial collection rights, including the right to
foreclosure and execution; provided, however, that the creditor
does not have the right to conduct a nonjudicial foreclosure sale
within six months after letters are granted.
Sec. 403.055. CERTAIN UNSECURED CLAIMS; BARRING OF CLAIMS.
An unsecured creditor who has a claim for money against an estate
and who receives a notice under Section 308.054 shall give to the
independent executor notice of the nature and amount of the claim
not later than the 120th day after the date the notice is received
or the claim is barred.
Sec. 403.056. NOTICES REQUIRED BY CREDITORS. (a) Notice to
the independent executor required by Sections 403.052 and 403.055
must be contained in:
(1) a written instrument that is hand-delivered with
proof of receipt, or mailed by certified mail, return receipt
requested with proof of receipt, to the independent executor or the
executor's attorney;
(2) a pleading filed in a lawsuit with respect to the
claim; or
(3) a written instrument or pleading filed in the
court in which the administration of the estate is pending.
(b) This section does not exempt a creditor who elects
matured secured status from the filing requirements of Section
403.052, to the extent those requirements are applicable.
Sec. 403.057. STATUTE OF LIMITATIONS. Except as otherwise
provided by Section 16.062, Civil Practice and Remedies Code, the
running of the statute of limitations shall be tolled only by a
written approval of a claim signed by an independent executor, a
pleading filed in a suit pending at the time of the decedent's
death, or a suit brought by the creditor against the independent
executor. In particular, the presentation of a statement or claim,
or a notice with respect to a claim, to an independent executor does
not toll the running of the statute of limitations with respect to
that claim.
Sec. 403.058. OTHER CLAIM PROCEDURES GENERALLY DO NOT
APPLY. Except as otherwise provided by this subchapter, the
procedural provisions of this title governing creditor claims in
supervised administrations do not apply to independent
administrations. By way of example, but not as a limitation:
(1) Sections 355.064 and 355.066 do not apply to
independent administrations, and consequently a creditor's claim
may not be barred solely because the creditor failed to file a suit
not later than the 90th day after the date an independent executor
rejected the claim or with respect to a claim for which the
independent executor takes no action; and
(2) Sections 355.156, 355.157, 355.158, 355.159, and
355.160 do not apply to independent administrations.
Sec. 403.0585. LIABILITY OF INDEPENDENT EXECUTOR FOR
PAYMENT OF A CLAIM. An independent executor, in the administration
of an estate, may pay at any time and without personal liability a
claim for money against the estate to the extent approved and
classified by the independent executor if:
(1) the claim is not barred by limitations; and
(2) at the time of payment, the independent executor
reasonably believes the estate will have sufficient assets to pay
all claims against the estate.
Sec. 403.059. ENFORCEMENT OF CLAIMS BY SUIT. Any person
having a debt or claim against the estate may enforce the payment of
the same by suit against the independent executor; and, when
judgment is recovered against the independent executor, the
execution shall run against the estate of the decedent in the
possession of the independent executor that is subject to the debt.
The independent executor shall not be required to plead to any suit
brought against the executor for money until after six months after
the date that an independent administration was created and the
order appointing the executor was entered by the probate court.
Sec. 403.060. REQUIRING HEIRS TO GIVE BOND. When an
independent administration is created and the order appointing an
independent executor is entered by the probate court, any person
having a debt against the estate may, by written complaint filed in
the probate court in which the order was entered, cause all
distributees of the estate, heirs at law, and other persons
entitled to any portion of the estate under the will, if any, to be
cited by personal service to appear before the court and execute a
bond for an amount equal to the amount of the creditor's claim or
the full value of the estate, as shown by the inventory and list of
claims, whichever is smaller. The bond must be payable to the
judge, and the judge's successors, and be approved by the judge, and
conditioned that all obligors shall pay all debts that shall be
established against the estate in the manner provided by law. On
the return of the citation served, unless a person so entitled to
any portion of the estate, or some of them, or some other person for
them, shall execute the bond to the satisfaction of the probate
court, the estate shall be administered and settled under the
direction of the probate court as other estates are required to be
settled. If the bond is executed and approved, the independent
administration shall proceed. Creditors of the estate may sue on
the bond, and shall be entitled to judgment on the bond for the
amount of their debt, or they may have their action against those in
possession of the estate.
CHAPTER 404. ACCOUNTINGS, SUCCESSORS, AND OTHER REMEDIES
Sec. 404.001. ACCOUNTING. (a) At any time after the
expiration of 15 months after the date that an independent
administration was created and the order appointing an independent
executor was entered by the probate court, any person interested in
the estate may demand an accounting from the independent executor.
The independent executor shall furnish to the person or persons
making the demand an exhibit in writing, sworn and subscribed by the
independent executor, setting forth in detail:
(1) the property belonging to the estate that has come
into the executor's possession as executor;
(2) the disposition that has been made of the property
described by Subdivision (1);
(3) the debts that have been paid;
(4) the debts and expenses, if any, still owing by the
estate;
(5) the property of the estate, if any, still
remaining in the executor's possession;
(6) other facts as may be necessary to a full and
definite understanding of the exact condition of the estate; and
(7) the facts, if any, that show why the
administration should not be closed and the estate distributed.
(a-1) Any other interested person shall, on demand, be
entitled to a copy of any exhibit or accounting that has been made
by an independent executor in compliance with this section.
(b) Should the independent executor not comply with a demand
for an accounting authorized by this section within 60 days after
receipt of the demand, the person making the demand may compel
compliance by an action in the probate court. After a hearing, the
court shall enter an order requiring the accounting to be made at
such time as it considers proper under the circumstances.
(c) After an initial accounting has been given by an
independent executor, any person interested in an estate may demand
subsequent periodic accountings at intervals of not less than 12
months, and such subsequent demands may be enforced in the same
manner as an initial demand.
(d) The right to an accounting accorded by this section is
cumulative of any other remedies which persons interested in an
estate may have against the independent executor of the estate.
Sec. 404.002. REQUIRING INDEPENDENT EXECUTOR TO GIVE BOND.
When it has been provided by will, regularly probated, that an
independent executor appointed by the will shall not be required to
give bond for the management of the estate devised by the will, or
the independent executor is not required to give bond because bond
has been waived by court order as authorized under Section 401.005,
then the independent executor may be required to give bond, on
proper proceedings had for that purpose as in the case of personal
representatives in a supervised administration, if it be made to
appear at any time that the independent executor is mismanaging the
property, or has betrayed or is about to betray the independent
executor's trust, or has in some other way become disqualified.
Sec. 404.003. REMOVAL OF INDEPENDENT EXECUTOR. (a) The
probate court, on its own motion or on motion of any interested
person, after the independent executor has been cited by personal
service to answer at a time and place fixed in the notice, may
remove an independent executor when:
(1) the independent executor fails to return within 90
days after qualification, unless such time is extended by order of
the court, either an inventory of the property of the estate and
list of claims that have come to the independent executor's
knowledge or an affidavit in lieu of the inventory, appraisement,
and list of claims;
(2) sufficient grounds appear to support belief that
the independent executor has misapplied or embezzled, or that the
independent executor is about to misapply or embezzle, all or any
part of the property committed to the independent executor's care;
(3) the independent executor fails to make an
accounting which is required by law to be made;
(4) the independent executor fails to timely file the
affidavit or certificate required by Section 308.004;
(5) the independent executor is proved to have been
guilty of gross misconduct or gross mismanagement in the
performance of the independent executor's duties; or
(6) the independent executor becomes an incapacitated
person, or is sentenced to the penitentiary, or from any other cause
becomes legally incapacitated from properly performing the
independent executor's fiduciary duties.
(b) The order of removal shall state the cause of removal
and shall direct by order the disposition of the assets remaining in
the name or under the control of the removed executor. The order of
removal shall require that letters issued to the removed executor
shall be surrendered and that all letters shall be canceled of
record. If an independent executor is removed by the court under
this section, the court may, on application, appoint a successor
independent executor as provided by Section 404.005.
(c) An independent executor who defends an action for the
independent executor's removal in good faith, whether successful or
not, shall be allowed out of the estate the independent executor's
necessary expenses and disbursements, including reasonable
attorney's fees, in the removal proceedings.
(d) Costs and expenses incurred by the party seeking removal
that are incident to removal of an independent executor appointed
without bond, including reasonable attorney's fees and expenses,
may be paid out of the estate.
Sec. 404.004. POWERS OF AN ADMINISTRATOR WHO SUCCEEDS AN
INDEPENDENT EXECUTOR. (a) Whenever a person has died, or shall
die, testate, owning property in this state, and the person's will
has been or shall be admitted to probate by the court, and the
probated will names an independent executor or executors, or
trustees acting in the capacity of independent executors, to
execute the terms and provisions of that will, and the will grants
to the independent executor, or executors, or trustees acting in
the capacity of independent executors, the power to raise or borrow
money and to mortgage, and the independent executor, or executors,
or trustees, have died or shall die, resign, fail to qualify, or be
removed from office, leaving unexecuted parts or portions of the
will of the testator, and an administrator with the will annexed is
appointed by the probate court, and an administrator's bond is
filed and approved by the court, then in all such cases, the court
may, in addition to the powers conferred on the administrator under
other provisions of the laws of this state, authorize, direct, and
empower the administrator to do and perform the acts and deeds,
clothed with the rights, powers, authorities, and privileges, and
subject to the limitations, set forth in the subsequent provisions
of this section.
(b) The court, on application, citation, and hearing, may,
by its order, authorize, direct, and empower the administrator to
raise or borrow such sums of money and incur such obligations and
debts as the court shall, in its said order, direct, and to renew
and extend same from time to time, as the court, on application and
order, shall provide; and, if authorized by the court's order, to
secure such loans, obligations, and debts, by pledge or mortgage on
property or assets of the estate, real, personal, or mixed, on such
terms and conditions, and for such duration of time, as the court
shall consider to be in the best interests of the estate, and by its
order shall prescribe; and all such loans, obligations, debts,
pledges, and mortgages shall be valid and enforceable against the
estate and against the administrator in the administrator's
official capacity.
(c) The court may order and authorize the administrator to
have and exercise the powers and privileges set forth in Subsection
(a) or (b) only to the extent that same are granted to or possessed
by the independent executor, or executors, or trustees acting in
the capacity of independent executors, under the terms of the
probated will of the decedent, and then only in such cases as it
appears, at the hearing of the application, that at the time of the
appointment of the administrator, there are outstanding and unpaid
obligations and debts of the estate, or of the independent
executor, or executors, or trustees, chargeable against the estate,
or unpaid expenses of administration, or when the court appointing
the administrator orders the business of the estate to be carried on
and it becomes necessary, from time to time, under orders of the
court, for the administrator to borrow money and incur obligations
and indebtedness in order to protect and preserve the estate.
(d) The court, in addition, may, on application, citation,
and hearing, order, authorize, and empower the administrator to
assume, exercise, and discharge, under the orders and directions of
the court, made from time to time, all or such part of the rights,
powers, and authorities vested in and delegated to, or possessed
by, the independent executor, or executors, or trustees acting in
the capacity of independent executors, under the terms of the will
of the decedent, as the court finds to be in the best interests of
the estate and shall, from time to time, order and direct.
(e) The granting to the administrator by the court of some,
or all, of the powers and authorities set forth in this section
shall be on application filed by the administrator with the county
clerk, setting forth such facts as, in the judgment of the
administrator, require the granting of the power or authority
requested.
(f) On the filing of an application under Subsection (e),
the clerk shall issue citation to all persons interested in the
estate, stating the nature of the application, and requiring those
persons to appear on the return day named in such citation and show
cause why the application should not be granted, should they choose
to do so. The citation shall be served by posting.
(g) The court shall hear the application and evidence on the
application, on or after the return day named in the citation, and,
if satisfied a necessity exists and that it would be in the best
interests of the estate to grant the application in whole or in
part, the court shall so order; otherwise, the court shall refuse
the application.
Sec. 404.005. COURT-APPOINTED SUCCESSOR INDEPENDENT
EXECUTOR. (a) If the will of a person who dies testate names an
independent executor who, having qualified, fails for any reason to
continue to serve, or is removed for cause by the court, and the
will does not name a successor independent executor or if each
successor executor named in the will fails for any reason to qualify
as executor or indicates by affidavit filed with the application
for an order continuing independent administration the successor
executor's inability or unwillingness to serve as successor
independent executor, all of the distributees of the decedent as of
the filing of the application for an order continuing independent
administration may apply to the probate court for the appointment
of a qualified person, firm, or corporation to serve as successor
independent executor. If the probate court finds that continued
administration of the estate is necessary, the court shall enter an
order continuing independent administration and appointing the
person, firm, or corporation designated in the application as
successor independent executor, unless the probate court finds that
it would not be in the best interest of the estate to do so. The
successor independent executor shall serve with all of the powers
and privileges granted to the successor's predecessor independent
executor.
(b) If a distributee described in this section is an
incapacitated person, the guardian of the person of the distributee
may sign the application on behalf of the distributee. If the
probate court finds that either the continuing of independent
administration or the appointment of the person, firm, or
corporation designated in the application as successor independent
executor would not be in the best interest of the incapacitated
person, then, notwithstanding Subsection (a), the court may not
enter an order continuing independent administration of the estate.
If the distributee is an incapacitated person and has no guardian of
the person, the court may appoint a guardian ad litem to make
application on behalf of the incapacitated person if the probate
court considers such an appointment necessary to protect the
interest of that distributee.
(c) If a trust is created in the decedent's will, the person
or class of persons first eligible to receive the income from the
trust, determined as if the trust were to be in existence on the
date of the filing of the application for an order continuing
independent administration, shall, for the purposes of this
section, be considered to be the distributee or distributees on
behalf of the trust, and any other trust or trusts coming into
existence on the termination of the trust, and are authorized to
apply for an order continuing independent administration on behalf
of the trust without the consent or agreement of the trustee or any
other beneficiary of the trust, or the trustee or any beneficiary of
any other trust which may come into existence on the termination of
the trust.
(d) If a life estate is created either in the decedent's
will or by law, and if a life tenant is living at the time of the
filing of the application for an order continuing independent
administration, then the life tenant or life tenants, determined as
if the life estate were to commence on the date of the filing of the
application for an order continuing independent administration,
shall, for the purposes of this section, be considered to be the
distributee or distributees on behalf of the entire estate created,
and are authorized to apply for an order continuing independent
administration on behalf of the estate without the consent or
approval of any remainderman.
(e) If a decedent's will contains a provision that a
distributee must survive the decedent by a prescribed period of
time in order to take under the decedent's will, for the purposes of
determining who shall be the distributee under this section, it
shall be presumed that the distributees living at the time of the
filing of the application for an order continuing independent
administration of the decedent's estate survived the decedent for
the prescribed period.
(f) In the case of all decedents, for the purposes of
determining who shall be the distributees under this section, it
shall be presumed that no distributee living at the time the
application for an order continuing independent administration of
the decedent's estate is filed shall subsequently disclaim any
portion of the distributee's interest in the decedent's estate.
(g) If a distributee of a decedent's estate should die, and
if by virtue of the distributee's death the distributee's share of
the decedent's estate shall become payable to the distributee's
estate, then the deceased distributee's personal representative
may sign the application for an order continuing independent
administration of the decedent's estate under this section.
(h) If a successor independent executor is appointed under
this section, then, unless the probate court shall waive bond on
application for waiver, the successor independent executor shall be
required to enter into bond payable to and to be approved by the
judge and the judge's successors in a sum that is found by the judge
to be adequate under all circumstances, or a bond with one surety in
an amount that is found by the judge to be adequate under all
circumstances, if the surety is an authorized corporate surety.
(i) Absent proof of fraud or collusion on the part of a
judge, the judge may not be held civilly liable for the commission
of misdeeds or the omission of any required act of any person, firm,
or corporation designated as a successor independent executor under
this section. Section 351.354 does not apply to an appointment of a
successor independent executor under this section.
CHAPTER 405. CLOSING AND DISTRIBUTIONS
Sec. 405.001. ACCOUNTING AND DISTRIBUTION. (a) In
addition to or in lieu of the right to an accounting provided by
Section 404.001, at any time after the expiration of two years after
the date the court clerk first issues letters testamentary or of
administration to any personal representative of an estate, a
person interested in the estate then subject to independent
administration may petition the court for an accounting and
distribution. The court may order an accounting to be made with the
court by the independent executor at such time as the court
considers proper. The accounting shall include the information
that the court considers necessary to determine whether any part of
the estate should be distributed.
(b) On receipt of the accounting and, after notice to the
independent executor and a hearing, unless the court finds a
continued necessity for administration of the estate, the court
shall order its distribution by the independent executor to the
distributees entitled to the property. If the court finds there is
a continued necessity for administration of the estate, the court
shall order the distribution of any portion of the estate that the
court finds should not be subject to further administration by the
independent executor. If any portion of the estate that is ordered
to be distributed is incapable of distribution without prior
partition or sale, the court shall order partition and
distribution, or sale, in the manner provided for the partition and
distribution of property incapable of division in supervised
estates.
(c) If all the property in the estate is ordered distributed
by the court and the estate is fully administered, the court may
also order the independent executor to file a final account with the
court and may enter an order closing the administration and
terminating the power of the independent executor to act as
executor.
Sec. 405.002. RECEIPTS AND RELEASES FOR DISTRIBUTIONS BY
INDEPENDENT EXECUTOR. (a) An independent executor may not be
required to deliver tangible or intangible personal property to a
distributee unless the independent executor receives, at or before
the time of delivery of the property, a signed receipt or other
proof of delivery of the property to the distributee.
(b) An independent executor may not require a waiver or
release from the distributee as a condition of delivery of property
to a distributee.
Sec. 405.003. JUDICIAL DISCHARGE OF INDEPENDENT EXECUTOR.
(a) After an estate has been administered and if there is no
further need for an independent administration of the estate, the
independent executor of the estate may file an action for
declaratory judgment under Chapter 37, Civil Practice and Remedies
Code, seeking to discharge the independent executor from any
liability involving matters relating to the past administration of
the estate that have been fully and fairly disclosed.
(b) On the filing of an action under this section, each
beneficiary of the estate shall be personally served with citation,
except for a beneficiary who has waived the issuance and service of
citation.
(c) In a proceeding under this section, the court may
require the independent executor to file a final account that
includes any information the court considers necessary to
adjudicate the independent executor's request for a discharge of
liability. The court may audit, settle, or approve a final account
filed under this subsection.
(d) On or before filing an action under this section, the
independent executor must distribute to the beneficiaries of the
estate any of the remaining assets or property of the estate that
remains in the independent executor's possession after all of the
estate's debts have been paid, except for a reasonable reserve of
assets that the independent executor may retain in a fiduciary
capacity pending court approval of the final account. The court may
review the amount of assets on reserve and may order the independent
executor to make further distributions under this section.
(e) Except as ordered by the court, the independent executor
is entitled to pay from the estate legal fees, expenses, or other
costs incurred in relation to a proceeding for judicial discharge
filed under this section. The independent executor shall be
personally liable to refund any amount of such fees, expenses, or
other costs not approved by the court as a proper charge against the
estate.
Sec. 405.004. CLOSING INDEPENDENT ADMINISTRATION BY
CLOSING REPORT OR NOTICE OF CLOSING ESTATE. When all of the debts
known to exist against the estate have been paid, or when they have
been paid so far as the assets in the independent executor's
possession will permit, when there is no pending litigation, and
when the independent executor has distributed to the distributees
entitled to the estate all assets of the estate, if any, remaining
after payment of debts, the independent executor may file with the
court a closing report or a notice of closing of the estate.
Sec. 405.005. CLOSING REPORT. An independent executor may
file a closing report verified by affidavit that:
(1) shows:
(A) the property of the estate that came into the
independent executor's possession;
(B) the debts that have been paid;
(C) the debts, if any, still owing by the estate;
(D) the property of the estate, if any, remaining
on hand after payment of debts; and
(E) the names and addresses of the distributees
to whom the property of the estate, if any, remaining on hand after
payment of debts has been distributed; and
(2) includes signed receipts or other proof of
delivery of property to the distributees named in the closing
report if the closing report reflects that there was property
remaining on hand after payment of debts.
Sec. 405.006. NOTICE OF CLOSING ESTATE. (a) Instead of
filing a closing report under Section 405.005, an independent
executor may file a notice of closing estate verified by affidavit
that states:
(1) that all debts known to exist against the estate
have been paid or have been paid to the extent permitted by the
assets in the independent executor's possession;
(2) that all remaining assets of the estate, if any,
have been distributed; and
(3) the names and addresses of the distributees to
whom the property of the estate, if any, remaining on hand after
payment of debts has been distributed.
(b) Before filing the notice, the independent executor
shall provide to each distributee of the estate a copy of the notice
of closing estate. The notice of closing estate filed by the
independent executor must include signed receipts or other proof
that all distributees have received a copy of the notice of closing
estate.
Sec. 405.007. EFFECT OF FILING CLOSING REPORT OR NOTICE OF
CLOSING ESTATE. (a) The independent administration of an estate is
considered closed 30 days after the date of the filing of a closing
report or notice of closing estate unless an interested person
files an objection with the court within that time. If an
interested person files an objection within the 30-day period, the
independent administration of the estate is closed when the
objection has been disposed of or the court signs an order closing
the estate.
(b) The closing of an independent administration by filing
of a closing report or notice of closing estate terminates the power
and authority of the independent executor, but does not relieve the
independent executor from liability for any mismanagement of the
estate or from liability for any false statements contained in the
report or notice.
(c) When a closing report or notice of closing estate has
been filed, persons dealing with properties of the estate, or with
claims against the estate, shall deal directly with the
distributees of the estate; and the acts of the distributees with
respect to the properties or claims shall in all ways be valid and
binding as regards the persons with whom they deal, notwithstanding
any false statements made by the independent executor in the report
or notice.
(d) If the independent executor is required to give bond,
the independent executor's filing of the closing report and proof
of delivery, if required, automatically releases the sureties on
the bond from all liability for the future acts of the principal.
The filing of a notice of closing estate does not release the
sureties on the bond of an independent executor.
(e) An independent executor's closing report or notice of
closing estate shall constitute sufficient legal authority to all
persons owing any money, having custody of any property, or acting
as registrar or transfer agent or trustee of any evidence of
interest, indebtedness, property, or right that belongs to the
estate, for payment or transfer without additional administration
to the distributees described in the will as entitled to receive the
particular asset or who as heirs at law are entitled to receive the
asset. The distributees described in the will as entitled to
receive the particular asset or the heirs at law entitled to receive
the asset may enforce their right to the payment or transfer by
suit.
Sec. 405.008. PARTITION AND DISTRIBUTION OR SALE OF
PROPERTY INCAPABLE OF DIVISION. If the will does not distribute the
entire estate of the testator or provide a means for partition of
the estate, or if no will was probated, the independent executor
may, but may not be required to, petition the probate court for
either a partition and distribution of the estate or an order of
sale of any portion of the estate alleged by the independent
executor and found by the court to be incapable of a fair and equal
partition and distribution, or both. The estate or portion of the
estate shall either be partitioned and distributed or sold, or
both, in the manner provided for the partition and distribution of
property and the sale of property incapable of division in
supervised estates.
Sec. 405.009. CLOSING INDEPENDENT ADMINISTRATION ON
APPLICATION BY DISTRIBUTEE. (a) At any time after an estate has
been fully administered and there is no further need for an
independent administration of the estate, any distributee may file
an application to close the administration; and, after citation on
the independent executor, and on hearing, the court may enter an
order:
(1) requiring the independent executor to file a
closing report meeting the requirements of Section 405.005;
(2) closing the administration;
(3) terminating the power of the independent executor
to act as independent executor; and
(4) releasing the sureties on any bond the independent
executor was required to give from all liability for the future acts
of the principal.
(b) The order of the court closing the independent
administration shall constitute sufficient legal authority to all
persons owing any money, having custody of any property, or acting
as registrar or transfer agent or trustee of any evidence of
interest, indebtedness, property, or right that belongs to the
estate, for payment or transfer without additional administration
to the distributees described in the will as entitled to receive the
particular asset or who as heirs at law are entitled to receive the
asset. The distributees described in the will as entitled to
receive the particular asset or the heirs at law entitled to receive
the asset may enforce their right to the payment or transfer by
suit.
Sec. 405.010. ISSUANCE OF LETTERS. At any time before the
authority of an independent executor has been terminated in the
manner set forth in this subtitle, the clerk shall issue such number
of letters testamentary as the independent executor shall request.
Sec. 405.011. RIGHTS AND REMEDIES CUMULATIVE. The rights
and remedies conferred by this chapter are cumulative of other
rights and remedies to which a person interested in the estate may
be entitled under law.
Sec. 405.012. CLOSING PROCEDURES NOT REQUIRED. An
independent executor is not required to close the independent
administration of an estate under Section 405.003 or Sections
405.004 through 405.007.
SECTION 2.53. (a) Sections 202.003 and 352.003, Estates
Code, as effective January 1, 2014, are repealed.
(b) The following sections of the Texas Probate Code are
repealed:
(1) Sections 4D, 4H, 48, 49, 59, 64, 67, 84, 222, 241,
250, 260, 436, 439, 452, 471, 472, and 473, as amended by Article 1
of this Act; and
(2) Sections 6A, 6B, 6C, 6D, 8A, 8B, 145A, 145B, and
145C, as added by Article 1 of this Act.
(c) Notwithstanding the transfer of Sections 6 and 8, Texas
Probate Code, to the Estates Code and redesignation as Sections 6
and 8 of that code effective January 1, 2014, by Section 2, Chapter
680 (H.B. 2502), Acts of the 81st Legislature, Regular Session,
2009, Sections 6 and 8, Texas Probate Code, as amended by Article 1
of this Act, are repealed.
(d) Notwithstanding the transfer of Sections 145 through
154A, Texas Probate Code, to the Estates Code and redesignation as
Sections 145 through 154A of that code effective January 1, 2014, by
Section 3, Chapter 680 (H.B. 2502), Acts of the 81st Legislature,
Regular Session, 2009, the following sections are repealed:
(1) Sections 145, 146, 149B, and 151, Texas Probate
Code, as amended by Article 1 of this Act; and
(2) Sections 147, 148, 149, 149A, 149C, 149D, 149E,
149F, 149G, 150, 152, 153, 154, and 154A, Texas Probate Code.
SECTION 2.54. This article takes effect January 1, 2014.
ARTICLE 3. CONFLICTS; EFFECTIVE DATE
SECTION 3.01. To the extent of any conflict, this Act
prevails over another Act of the 82nd Legislature, Regular Session,
2011, relating to nonsubstantive additions to and corrections in
enacted codes.
SECTION 3.02. Except as otherwise provided by this Act,
this Act takes effect September 1, 2011.