Bill Text: TX HB2912 | 2013-2014 | 83rd Legislature | Comm Sub
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to decedents' estates.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2013-06-14 - Effective on 1/1/14 [HB2912 Detail]
Download: Texas-2013-HB2912-Comm_Sub.html
Bill Title: Relating to decedents' estates.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2013-06-14 - Effective on 1/1/14 [HB2912 Detail]
Download: Texas-2013-HB2912-Comm_Sub.html
By: Thompson of Harris (Senate Sponsor - Rodriguez) | H.B. No. 2912 | |
(In the Senate - Received from the House May 6, 2013; | ||
May 7, 2013, read first time and referred to Committee on | ||
Jurisprudence; May 20, 2013, reported favorably, as amended, by | ||
the following vote: Yeas 5, Nays 0; May 20, 2013, sent to | ||
printer.) |
COMMITTEE AMENDMENT NO. 1 | By: Rodriguez | |
Amend H.B. 2912 (house engrossment) as follows: | ||
(1) On page 13, lines 8-9, strike "until the applicant files | ||
the affidavit required by this section" and substitute "until the | ||
affidavit or certificate required by Subsection (a) is filed". | ||
(2) On page 46, line 4, strike "405.001(b),". | ||
(3) On page 46, line 12, strike "and 403.056(a)" and | ||
substitute "403.056(a), and 405.001(b)". | ||
COMMITTEE AMENDMENT NO. 2 | By: Rodriguez | |
Amend H.B. 2912 (house engrossment) as follows: | ||
(1) Strike SECTION 11 of the bill. | ||
(2) On page 46, lines 10 and 11, strike "201.001(f) and | ||
(g),". | ||
(3) On page 46, line 13, strike "201.001(i) and (j),". | ||
(4) Renumber SECTIONS of the bill appropriately. | ||
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relating to decedents' estates. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 21.005, Estates Code, as effective | ||
January 1, 2014, is amended to conform to Section 2.54, Chapter 1338 | ||
(S.B. 1198), Acts of the 82nd Legislature, Regular Session, 2011, | ||
and is further amended to read as follows: | ||
Sec. 21.005. APPLICABILITY OF CERTAIN LAWS. (a) | ||
Notwithstanding Section 21.002(b) of this code and Section 311.002, | ||
Government Code: | ||
(1) Section 311.032(c), Government Code, applies to | ||
Subtitle [ |
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Title 3; and | ||
(2) Sections 311.005(4) and 311.012(b) and (c), | ||
Government Code, apply to Subtitle [ |
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and Subtitles Y and Z, Title 3. | ||
(b) Chapter 132, Civil Practice and Remedies Code, does not | ||
apply to Subchapter C, Chapter 251. | ||
SECTION 2. Notwithstanding the transfer of Section 2, Texas | ||
Probate Code, to the Estates Code and redesignation as Section 2 of | ||
that code effective January 1, 2014, by Section 2, Chapter 680 (H.B. | ||
2502), Acts of the 81st Legislature, Regular Session, 2009, | ||
Subsection (e), Section 2, Texas Probate Code, is transferred to | ||
Chapter 32, Estates Code, redesignated as Subsection (d), Section | ||
32.001, Estates Code, and amended to read as follows: | ||
(d) [ |
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estate of a decedent, from the filing of the application for probate | ||
and administration, or for administration, until the decree of | ||
final distribution and the discharge of the last personal | ||
representative, shall be considered as one proceeding for purposes | ||
of jurisdiction. The entire proceeding is a proceeding in rem. | ||
SECTION 3. Section 32.006, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 32.006. JURISDICTION OF STATUTORY PROBATE COURT WITH | ||
RESPECT TO TRUSTS AND POWERS OF ATTORNEY. In a county in which | ||
there is a statutory probate court, the statutory probate court has | ||
jurisdiction of: | ||
(1) an action by or against a trustee; | ||
(2) an action involving an inter vivos trust, | ||
testamentary trust, or charitable trust; | ||
(3) an action by or 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 | ||
(4) 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 4. Section 51.203(c), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(c) At the expiration of the 10-day period prescribed by | ||
Subsection (a): | ||
(1) [ |
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for which the notice was posted may be taken; and | ||
(2) the judge may file cross-interrogatories if no | ||
person appears. | ||
SECTION 5. Section 53.104, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 53.104. APPOINTMENT OF ATTORNEYS AD LITEM. (a) Except | ||
as provided by Section 202.009(b), the judge of a probate court may | ||
appoint an attorney ad litem in any probate proceeding to represent | ||
the interests of any person, including: | ||
(1) a person who has a legal disability under state or | ||
federal law; | ||
(2) a nonresident; | ||
(3) an unborn or unascertained person; [ |
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(4) an unknown heir; | ||
(5) a missing heir; or | ||
(6) an unknown or missing person for whom cash is | ||
deposited into the court's registry under Section 362.011. | ||
(b) An attorney ad litem appointed under this section is | ||
entitled to reasonable compensation for services provided in the | ||
amount set by the court. The court shall: | ||
(1) tax the compensation as costs in the probate | ||
proceeding and order the compensation to be paid out of the estate | ||
or by any party at any time during [ |
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proceeding; or | ||
(2) for an attorney ad litem appointed under | ||
Subsection (a)(6), order that the compensation be paid from the | ||
cash on deposit in the court's registry as provided by Section | ||
362.011. | ||
SECTION 6. Subchapter C, Chapter 53, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 53.107 to | ||
read as follows: | ||
Sec. 53.107. INAPPLICABILITY OF CERTAIN RULES OF CIVIL | ||
PROCEDURE. The following do not apply to probate proceedings: | ||
(1) Rules 47(c) and 169, Texas Rules of Civil | ||
Procedure; and | ||
(2) the portions of Rule 190.2, Texas Rules of Civil | ||
Procedure, concerning expedited actions under Rule 169, Texas Rules | ||
of Civil Procedure. | ||
SECTION 7. Section 54.051, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 54.051. APPLICABILITY OF CERTAIN RULES RELATING TO | ||
WITNESSES AND EVIDENCE. Except as provided by Section 51.203, the | ||
Texas Rules of Evidence [ |
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under this title to the extent practicable. | ||
SECTION 8. Section 102.004, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 102.004. LIABILITY OF HOMESTEAD FOR DEBTS. If the | ||
decedent was survived by a spouse or minor child, the [ |
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homestead is not liable for the payment of any of the debts of the | ||
estate, other than: | ||
(1) purchase money for the homestead; | ||
(2) taxes due on the homestead; | ||
(3) work and material used in constructing | ||
improvements on the homestead if the requirements of Section | ||
50(a)(5), Article XVI, Texas Constitution, are met; | ||
(4) an owelty of partition imposed against the | ||
entirety of the property by a court order or written agreement of | ||
the parties to the partition, including a debt of one spouse in | ||
favor of the other spouse resulting from a division or an award of a | ||
family homestead in a divorce proceeding; | ||
(5) the refinance of a lien against the homestead, | ||
including a federal tax lien resulting from the tax debt of both | ||
spouses, if the homestead is a family homestead, or from the tax | ||
debt of the decedent; | ||
(6) an extension of credit on the homestead if the | ||
requirements of Section 50(a)(6), Article XVI, Texas Constitution, | ||
are met; or | ||
(7) a reverse mortgage. | ||
SECTION 9. Section 111.051, Estates Code, as effective | ||
January 1, 2014, is amended by amending Subdivision (1) and adding | ||
Subdivision (1-a) to read as follows: | ||
(1) "Contracting third party" means a financial | ||
institution, insurance company, plan custodian, plan | ||
administrator, or other person who is a party to an account | ||
agreement, insurance contract, annuity contract, retirement | ||
account, beneficiary designation, or other similar contract the | ||
terms of which control whether a nontestamentary transfer has | ||
occurred or to whom property passes as a result of a possible | ||
nontestamentary transfer. The term does not include a person who | ||
is: | ||
(A) an owner of the property subject to a | ||
possible nontestamentary transfer; or | ||
(B) a possible recipient of the property subject | ||
to a possible nontestamentary transfer. | ||
(1-a) "Employees' trust" means: | ||
(A) a trust that forms a part of a stock-bonus, | ||
pension, or profit-sharing plan under Section 401, Internal Revenue | ||
Code of 1954 (26 U.S.C. Section 401 (1986)); | ||
(B) a pension trust under Chapter 111, Property | ||
Code; and | ||
(C) an employer-sponsored benefit plan or | ||
program, or any other retirement savings arrangement, including a | ||
pension plan created under Section 3, Employee Retirement Income | ||
Security Act of 1974 (29 U.S.C. Section 1002 (1986)), regardless of | ||
whether the plan, program, or arrangement is funded through a | ||
trust. | ||
SECTION 10. Subchapter B, Chapter 111, Estates Code, is | ||
amended by adding Section 111.054 to read as follows: | ||
Sec. 111.054. APPLICATION OF STATE LAW TO CERTAIN | ||
NONTESTAMENTARY TRANSFERS. (a) This section applies if more than | ||
50 percent of the: | ||
(1) assets in an account at a financial institution, | ||
in a retirement account, or in another similar arrangement are | ||
owned, immediately before a possible nontestamentary transfer of | ||
the assets, by one or more persons domiciled in this state; or | ||
(2) interests under an insurance contract, annuity | ||
contract, beneficiary designation, or other similar arrangement | ||
are owned, immediately before a possible nontestamentary transfer | ||
of the interests, by one or more persons domiciled in this state. | ||
(b) Notwithstanding a choice of law or other contractual | ||
provision in an agreement prepared or provided by a contracting | ||
third party, Texas law applies to determine: | ||
(1) whether a nontestamentary transfer of assets or | ||
interests described by Subsection (a) has occurred; and | ||
(2) the ownership of the assets or interests following | ||
a possible nontestamentary transfer. | ||
(c) Notwithstanding a choice of law or other contractual | ||
provision in an agreement prepared or provided by a contracting | ||
third party, any person, including a personal representative, who | ||
is asserting an ownership interest in assets or interests described | ||
by Subsection (a) subject to a possible nontestamentary transfer | ||
shall have access to the courts of this state for a judicial | ||
determination of: | ||
(1) whether a nontestamentary transfer of the assets | ||
or interests has occurred; or | ||
(2) the ownership of the assets or interests following | ||
a possible nontestamentary transfer. | ||
(d) Subsections (a), (b), and (c) do not apply to an | ||
obligation: | ||
(1) owed by a party to the contracting third party; or | ||
(2) owed by the contracting third party to a party. | ||
(e) This section applies to a community property | ||
survivorship agreement governed by Chapter 112 and a multiple-party | ||
account governed by Chapter 113. | ||
SECTION 11. Section 201.001, Estates Code, as effective | ||
January 1, 2014, is amended by amending Subsections (f) and (g) and | ||
adding Subsections (i) and (j) to read as follows: | ||
(f) If none of the kindred described by Subsections (b)-(e) | ||
survive the person, but the person is survived by a grandparent or a | ||
descendant of a grandparent, the person's estate shall be divided | ||
into two moieties, with: | ||
(1) one moiety passing to the person's paternal | ||
kindred as provided by Subsection (g); and | ||
(2) one moiety passing to the person's maternal | ||
kindred as provided by Subsection (h). | ||
(g) The moiety passing to the person's paternal kindred | ||
passes in the following order: | ||
(1) if both paternal grandparents survive the person, | ||
equal portions pass to the person's paternal grandfather and | ||
grandmother; | ||
(2) if only the person's paternal grandfather or | ||
grandmother survives the person, the person's estate shall: | ||
(A) be divided into two equal portions, with: | ||
(i) one portion passing to the surviving | ||
grandparent; and | ||
(ii) one portion passing to the descendants | ||
of the deceased grandparent; or | ||
(B) pass entirely to the surviving grandparent if | ||
no descendant of the deceased grandparent survives the person; and | ||
(3) if neither the person's paternal grandfather nor | ||
grandmother survives the person, the moiety passing to the | ||
decedent's paternal kindred passes to the descendants of the | ||
person's paternal grandfather and grandmother [ |
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(i) If none of the kindred described by Subsections (b)-(e) | ||
survive the person and there is no surviving paternal grandparent | ||
or descendant of a paternal grandparent or, in the alternative, | ||
there is no surviving maternal grandparent or descendant of a | ||
maternal grandparent, the entire estate passes to the decedent's | ||
kindred on the side with the surviving grandparent or descendant of | ||
a grandparent in the manner provided for a moiety under Subsection | ||
(g) or (h). | ||
(j) If none of the kindred described by Subsections (b)-(i) | ||
survive the person, the person's estate escheats under Chapter 71, | ||
Property Code. | ||
SECTION 12. Section 201.051, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 201.051. MATERNAL INHERITANCE. For purposes of | ||
inheritance, a child is the child of the child's biological or | ||
adopted mother, and the child and the child's issue shall inherit | ||
from the child's mother and the child's maternal kindred, both | ||
descendants, ascendants, and collateral kindred in all degrees, and | ||
they may inherit from the child and the child's issue. However, if a | ||
child has intended parents, as defined by Section 160.102, Family | ||
Code, under a gestational agreement validated under Subchapter I, | ||
Chapter 160, Family Code, the child is the child of the intended | ||
mother and not the biological mother or gestational mother unless | ||
the biological mother is also the intended mother. | ||
SECTION 13. Section 201.052, Estates Code, as effective | ||
January 1, 2014, is amended by adding Subsection (a-1) and amending | ||
Subsection (b) to read as follows: | ||
(a-1) Notwithstanding Subsection (a), if a child has | ||
intended parents, as defined by Section 160.102, Family Code, under | ||
a gestational agreement validated under Subchapter I, Chapter 160, | ||
Family Code, the child is the child of the intended father and not | ||
the biological father unless the biological father is also the | ||
intended father. | ||
(b) A child described by Subsection (a) or (a-1) and the | ||
child's issue shall inherit from the child's father and the child's | ||
paternal kindred, both descendants, ascendants, and collateral | ||
kindred in all degrees, and they may inherit from the child and the | ||
child's issue. | ||
SECTION 14. Subchapter A, Chapter 202, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 202.0025 to | ||
read as follows: | ||
Sec. 202.0025. ACTION BROUGHT AFTER DECEDENT'S DEATH. | ||
Notwithstanding Section 16.051, Civil Practice and Remedies Code, a | ||
proceeding to declare heirship of a decedent may be brought at any | ||
time after the decedent's death. | ||
SECTION 15. 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 [ |
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owner of all or part of the decedent's estate; | ||
(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 16. Section 202.009, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 202.009. ATTORNEY AD LITEM [ |
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litem in a proceeding to declare heirship [ |
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represent the interests of heirs whose names or locations are | ||
unknown [ |
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(b) The court may expand the appointment of the [ |
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include representation of an heir who is an incapacitated person on | ||
a finding that the appointment is necessary to protect the | ||
interests of the heir [ |
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SECTION 17. Section 202.056, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 202.056. WAIVER OF SERVICE OF CITATION [ |
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attorney ad litem, or guardian ad litem of a minor distributee who: | ||
(1) is younger than 12 years of age [ |
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this subchapter to be served on the distributee; and | ||
(2) is 12 years of age or older may not waive citation | ||
required by this subchapter to be served on the distributee. | ||
SECTION 18. Subchapter B, Chapter 202, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 202.057 to | ||
read as follows: | ||
Sec. 202.057. AFFIDAVIT OF SERVICE OF CITATION. (a) A | ||
person who files an application under Section 202.005 shall file | ||
with the court: | ||
(1) a copy of any citation required by this subchapter | ||
and the proof of delivery of service of the citation; and | ||
(2) an affidavit sworn to by the applicant or a | ||
certificate signed by the applicant's attorney stating: | ||
(A) that the citation was served as required by | ||
this subchapter; | ||
(B) the name of each person to whom the citation | ||
was served, if the person's name is not shown on the proof of | ||
delivery; and | ||
(C) the name of each person who waived citation | ||
under Section 202.056. | ||
(b) The court may not enter an order in the proceeding to | ||
declare heirship under Subchapter E until the applicant files the | ||
affidavit required by this section. | ||
SECTION 19. Section 202.151, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 202.151. [ |
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HEIRSHIP. (a) The court may require that [ |
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[ |
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declare heirship be [ |
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[ |
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by the witnesses, respectively [ |
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(b) Testimony in a proceeding to declare heirship must be | ||
taken in open court, by deposition in accordance with Section | ||
51.203, or in accordance with the Texas Rules of Civil Procedure. | ||
SECTION 20. Sections 204.151 and 204.152, Estates Code, as | ||
effective January 1, 2014, are amended to read as follows: | ||
Sec. 204.151. APPLICABILITY OF SUBCHAPTER. This subchapter | ||
applies in a proceeding to declare heirship of a decedent only with | ||
respect to an individual who[ |
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claims[ |
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the decedent[ |
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Sec. 204.152. PRESUMPTION; [ |
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Family Code, that applies in establishing a parent-child | ||
relationship also applies in determining heirship in the probate | ||
court using the results of genetic testing ordered with respect to | ||
an individual described by Section 204.151, and the presumption may | ||
be rebutted in the same manner provided by Section 160.505, Family | ||
Code. [ |
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SECTION 21. Section 253.001, Estates Code, as effective | ||
January 1, 2014, is amended by adding Subsection (c) to read as | ||
follows: | ||
(c) Any portion of a court order that purports to prohibit a | ||
person from executing a new will or a codicil to an existing will is | ||
void and may be disregarded without penalty or sanction of any kind. | ||
SECTION 22. The heading to Section 256.052, Estates Code, | ||
as effective January 1, 2014, is amended to read as follows: | ||
Sec. 256.052. CONTENTS OF APPLICATION FOR PROBATE OF | ||
[ |
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SECTION 23. 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 [ |
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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, state of residence, and physical address | ||
where service can be had [ |
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[ |
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desires that letters be issued; [ |
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(8) the name of [ |
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will, if any; | ||
(9) [ |
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adopted by the testator after the testator executed the will | ||
survived the testator and, if so, the name of each of those | ||
children; | ||
(10) [ |
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dissolved after the will was made and, if so, when and from whom; | ||
(11) [ |
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of the state, or a charitable organization is named in the will as a | ||
devisee; and | ||
(12) [ |
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applicant, or another person to whom the applicant desires that | ||
letters be issued is not disqualified by law from accepting the | ||
letters. | ||
SECTION 24. The heading to Section 256.053, Estates Code, | ||
as effective January 1, 2014, is amended to read as follows: | ||
Sec. 256.053. FILING OF [ |
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PROBATE GENERALLY REQUIRED. | ||
SECTION 25. Section 256.053(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(a) An applicant for the probate of a [ |
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file the will with the application if the will is in the applicant's | ||
control. | ||
SECTION 26. Section 256.054, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 256.054. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO | ||
[ |
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application under Section 256.052, if an applicant for the probate | ||
of a [ |
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application must state: | ||
(1) the reason the will cannot be produced; | ||
(2) the contents of the will, as far as known; and | ||
(3) the name, age, marital status, and address, if | ||
known, and the relationship to the testator, if any, of: | ||
(A) each devisee; | ||
(B) each person who would inherit as an heir of | ||
the testator in the absence of a valid will; and | ||
(C) in the case of partial intestacy, each heir | ||
of the testator. | ||
SECTION 27. Section 256.152(c), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(c) As an alternative to Subsection (b) [ |
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country is considered self-proved without further evidence of the | ||
law of the other state or foreign country 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 28. Section 256.153, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 256.153. PROOF OF EXECUTION OF [ |
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produced in court that is not self-proved as provided by this title | ||
may be proved in the manner provided by this section. | ||
(b) A will described by Subsection (a) may be proved by the | ||
sworn testimony or affidavit of one or more of the subscribing | ||
witnesses to the will taken in open court. | ||
(c) If all the witnesses to a will described by Subsection | ||
(a) are nonresidents of the county or the witnesses who are | ||
residents of the county are unable to attend court, the will may be | ||
proved: | ||
(1) by the sworn testimony of one or more of the | ||
witnesses by written or oral deposition taken in accordance with | ||
Section 51.203 or the Texas Rules of Civil Procedure [ |
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(2) if no opposition in writing to the will is filed on | ||
or before the date set for the hearing on the will, by the sworn | ||
testimony or affidavit of two witnesses taken in open court, or by | ||
deposition as provided by Subdivision (1), to the signature or the | ||
handwriting evidenced by the signature of: | ||
(A) one or more of the attesting witnesses; or | ||
(B) the testator, if the testator signed the | ||
will; or | ||
(3) if it is shown under oath to the court's | ||
satisfaction that, after a diligent search was made, only one | ||
witness can be found who can make the required proof, by the sworn | ||
testimony or affidavit of that witness taken in open court, or by | ||
deposition as provided by Subdivision (1), to a signature, or the | ||
handwriting evidenced by a signature, described by Subdivision (2). | ||
(d) If none of the witnesses to a will described by | ||
Subsection (a) are living, or if each of the witnesses is a member | ||
of the armed forces or the armed forces reserves of the United | ||
States, an auxiliary of the armed forces or armed forces reserves, | ||
or the United States Maritime Service and is beyond the court's | ||
jurisdiction, the will may be proved: | ||
(1) by two witnesses to the handwriting of one or both | ||
of the subscribing witnesses to the will or the testator, if the | ||
testator signed the will, by: | ||
(A) sworn testimony or affidavit taken in open | ||
court; or | ||
(B) written or oral deposition taken in | ||
accordance with Section 51.203 or the Texas Rules of Civil | ||
Procedure [ |
||
|
||
(2) if it is shown under oath to the court's | ||
satisfaction that, after a diligent search was made, only one | ||
witness can be found who can make the required proof, by the sworn | ||
testimony or affidavit of that witness taken in open court, or by | ||
deposition as provided by Subdivision (1), to a signature or the | ||
handwriting described by Subdivision (1). | ||
(e) A witness being deposed for purposes of proving the will | ||
as provided by Subsection (c) or (d) may testify by referring to a | ||
certified copy of the will, without the judge requiring the | ||
original will to be removed from the court's file and shown to the | ||
witness. | ||
SECTION 29. Section 256.154, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 256.154. PROOF OF EXECUTION [ |
||
[ |
||
the testator that is not self-proved as provided by this title may | ||
be proved by two witnesses to the testator's handwriting. The | ||
evidence may be by: | ||
(1) sworn testimony or affidavit taken in open court; | ||
or | ||
(2) if the witnesses are nonresidents of the county or | ||
are residents who are unable to attend court, written or oral | ||
deposition taken in accordance with Section 51.203 or the Texas | ||
Rules of Civil Procedure [ |
||
|
||
(b) A witness being deposed for purposes of proving the will | ||
as provided by Subsection (a)(2) may testify by referring to a | ||
certified copy of the will, without the judge requiring the | ||
original will to be removed from the court's file and shown to the | ||
witness. | ||
SECTION 30. Section 256.155(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(a) This section, rather than Sections 256.153(c) and (d) | ||
and 256.154 regarding the taking of depositions [ |
||
|
||
has been filed with respect to an application for the probate of a | ||
will. | ||
SECTION 31. Section 256.156, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 256.156. PROOF OF [ |
||
COURT. (a) A [ |
||
be proved in the same manner as provided in Section 256.153 for an | ||
attested [ |
||
as applicable. The same amount and character of testimony is | ||
required to prove the [ |
||
required to prove a [ |
||
(b) In addition to the proof required by Subsection (a): | ||
(1) the cause of the nonproduction of a [ |
||
not produced in court must be proved, which must be sufficient to | ||
satisfy the court that the will cannot by any reasonable diligence | ||
be produced; and | ||
(2) the contents of the will must be substantially | ||
proved by the testimony of a credible witness who has read either | ||
the original or a copy of the will, has heard the will read, or can | ||
identify a copy of the will. | ||
SECTION 32. Section 256.203, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 256.203. ESTABLISHING CONTENTS OF WILL NOT IN COURT'S | ||
CUSTODY. If for any reason a [ |
||
custody, the court shall find the contents of the will by written | ||
order. Certified copies of the contents as established by the | ||
order may be: | ||
(1) recorded in other counties; and | ||
(2) used in evidence, as certified copies of [ |
||
wills in the custody of the court may be used. | ||
SECTION 33. Section 257.052, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 257.052. FILING OF [ |
||
GENERALLY REQUIRED. (a) An applicant for the probate of a | ||
[ |
||
application if the will is in the applicant's control. | ||
(b) A will filed under Subsection (a) must remain in the | ||
custody of the county clerk unless removed from the clerk's custody | ||
by court order. | ||
SECTION 34. Section 257.053, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 257.053. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO | ||
[ |
||
application under Section 257.051, if an applicant for the probate | ||
of a [ |
||
in court, the application must state: | ||
(1) the reason the will cannot be produced; | ||
(2) the contents of the will, to the extent known; and | ||
(3) the name, age, marital status, and address, if | ||
known, and the relationship to the testator, if any, of: | ||
(A) each devisee; | ||
(B) each person who would inherit as an heir of | ||
the testator in the absence of a valid will; and | ||
(C) in the case of partial intestacy, each heir | ||
of the testator. | ||
SECTION 35. Subchapter D, Chapter 301, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 301.155 to | ||
read as follows: | ||
Sec. 301.155. AUTHORIZED METHODS OF PROOF. A fact | ||
contained in an application for issuance of letters testamentary or | ||
of administration or any other fact required to be proved by this | ||
subchapter may be proved by the sworn testimony of a witness with | ||
personal knowledge of the fact that is: | ||
(1) taken in open court; or | ||
(2) if proved under oath to the satisfaction of the | ||
court that the witness is unavailable, taken by deposition on | ||
written questions in accordance with Section 51.203 or the Texas | ||
Rules of Civil Procedure. | ||
SECTION 36. Section 304.001(c), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(c) If persons [ |
||
|
||
administration [ |
||
(1) shall grant the letters to the person [ |
||
who, in the judgment of the court, is most likely to administer the | ||
estate advantageously; or | ||
(2) may grant the letters to two or more of those | ||
persons [ |
||
SECTION 37. Section 305.002(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(a) A personal representative, other than an executor | ||
described by Subsection (b), is considered to have qualified when | ||
the representative has: | ||
(1) taken and filed the oath prescribed by Subchapter | ||
B; | ||
(2) filed [ |
||
and | ||
(3) obtained the judge's approval of the bond [ |
||
[ |
||
SECTION 38. Section 305.003, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 305.003. PERIOD FOR TAKING OATH [ |
||
oath may be taken and subscribed [ |
||
|
||
(1) the 21st day after the date of the order granting | ||
letters testamentary or of administration, as applicable; or | ||
(2) the letters testamentary or of administration, as | ||
applicable, are revoked for a failure to qualify within the period | ||
allowed. | ||
SECTION 39. Subchapter A, Chapter 305, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 305.004 to | ||
read as follows: | ||
Sec. 305.004. PERIOD FOR GIVING BOND. (a) A bond may be | ||
filed with the clerk at any time before: | ||
(1) the 21st day after: | ||
(A) the date of the order granting letters | ||
testamentary or of administration, as applicable; or | ||
(B) the date of any order modifying the bond | ||
requirement; or | ||
(2) the date letters testamentary or of | ||
administration, as applicable, are revoked for a failure to qualify | ||
within the period allowed. | ||
(b) The court shall act promptly to review a bond filed as | ||
provided by Subsection (a) and, if acceptable, shall approve the | ||
bond. | ||
(c) If no action has been taken by the court on the bond | ||
before the 21st day after the date the bond is filed, the person | ||
appointed personal representative may file a motion requiring the | ||
judge of the court in which the bond was filed to specify on the | ||
record the reason or reasons for the judge's failure to act on the | ||
bond. The hearing on the motion must be held before the 11th day | ||
after the date the motion is filed. | ||
SECTION 40. Section 308.054(b), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(b) Notice given under Subsection (a) must: | ||
(1) expressly state that the creditor must present the | ||
claim before the 121st day [ |
||
the receipt of the notice or the claim is barred, if the claim is not | ||
barred by the general statutes of limitation; and | ||
(2) include: | ||
(A) the date the letters testamentary or of | ||
administration held by the personal representative were issued to | ||
the representative; | ||
(B) the address to which the claim may be | ||
presented; and | ||
(C) an instruction of the representative's | ||
choice that the claim be addressed in care of: | ||
(i) the representative; | ||
(ii) the representative's attorney; or | ||
(iii) "Representative, Estate of _______" | ||
(naming the estate). | ||
SECTION 41. 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 Section 309.056 | ||
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 which portion of the property, if any, is | ||
separate property and which, if any, is community property. | ||
SECTION 42. Section 309.056, Estates Code, as effective | ||
January 1, 2014, is amended by amending Subsection (b) and adding | ||
Subsection (d) to read as follows: | ||
(b) Notwithstanding Sections 309.051 and 309.052, or any | ||
contrary provision in a decedent's will that does not specifically | ||
prohibit the filing of an affidavit described by this subsection, | ||
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. | ||
(d) An independent executor is not liable for choosing to | ||
file: | ||
(1) an affidavit under this section in lieu of filing | ||
an inventory, appraisement, and list of claims, if permitted by | ||
law; or | ||
(2) an inventory, appraisement, and list of claims in | ||
lieu of filing an affidavit under this section. | ||
SECTION 43. Subchapter B, Chapter 309, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 309.057 to | ||
read as follows: | ||
Sec. 309.057. PENALTY FOR FAILURE TO TIMELY FILE INVENTORY, | ||
APPRAISEMENT, AND LIST OF CLAIMS OR AFFIDAVIT IN LIEU OF. (a) This | ||
section applies only to a personal representative, including an | ||
independent executor or administrator, who does not file an | ||
inventory, appraisement, and list of claims or affidavit in lieu of | ||
the inventory, appraisement, and list of claims, as applicable, | ||
within the period prescribed by Section 309.051 or any extension | ||
granted by the court. | ||
(b) Any person interested in the estate on written | ||
complaint, or the court on the court's own motion, may have a | ||
personal representative to whom this section applies cited to file | ||
the inventory, appraisement, and list of claims or affidavit in | ||
lieu of the inventory, appraisement, and list of claims, as | ||
applicable, and show cause for the failure to timely file. | ||
(c) If the personal representative does not file the | ||
inventory, appraisement, and list of claims or affidavit in lieu of | ||
the inventory, appraisement, and list of claims, as applicable, | ||
after being cited or does not show good cause for the failure to | ||
timely file, the court on hearing may fine the representative in an | ||
amount not to exceed $1,000. | ||
(d) The personal representative and the representative's | ||
sureties, if any, are liable for any fine imposed under this section | ||
and for all damages and costs sustained by the representative's | ||
failure. The fine, damages, and costs may be recovered in any court | ||
of competent jurisdiction. | ||
SECTION 44. Sections 309.103(a) and (b), Estates Code, as | ||
effective January 1, 2014, are amended to read as follows: | ||
(a) Any interested person who considers an inventory, | ||
appraisement, or list of claims or an affidavit in lieu of the | ||
inventory, appraisement, and list of claims [ |
||
to be erroneous or unjust in any particular may: | ||
(1) file a written complaint setting forth the alleged | ||
erroneous or unjust item; and | ||
(2) have the personal representative cited to appear | ||
before the court and show cause why the item should not be | ||
corrected. | ||
(b) On the hearing of the complaint, if the court is | ||
satisfied from the evidence that the inventory, appraisement, or | ||
list of claims or an affidavit in lieu of the inventory, | ||
appraisement, and list of claims is erroneous or unjust as alleged | ||
in the complaint, the court shall enter an order: | ||
(1) specifying the erroneous or unjust item and the | ||
corrections to be made; and | ||
(2) if the complaint relates to an inventory, | ||
appraisement, or list of claims, appointing appraisers to make a | ||
new appraisement correcting the erroneous or unjust item and | ||
requiring the filing of the new appraisement before the 21st day | ||
after the date of the order. | ||
SECTION 45. Section 353.101(d), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(d) A family allowance may not be made for: | ||
(1) the decedent's surviving spouse, if the surviving | ||
spouse has separate property adequate for the surviving spouse's | ||
maintenance; | ||
(2) the decedent's minor children, if the minor | ||
children have property in their own right adequate for the | ||
children's maintenance; or | ||
(3) any of the decedent's adult incapacitated | ||
children, if: | ||
(A) the adult incapacitated child has property in | ||
the person's own right adequate for the person's maintenance; or | ||
(B) at the time of the decedent's death, the | ||
decedent was not supporting the adult incapacitated child. | ||
SECTION 46. Section 355.060, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 355.060. UNSECURED CLAIMS BARRED UNDER CERTAIN | ||
CIRCUMSTANCES. If a personal representative gives a notice | ||
permitted by Section 308.054 to an unsecured creditor for money and | ||
the creditor's claim is not presented before the 121st day [ |
||
|
||
barred. | ||
SECTION 47. Section 361.155, Estates Code, as effective | ||
January 1, 2014, is amended by amending Subsection (b) and adding | ||
Subsection (c) to read as follows: | ||
(b) Except as otherwise provided by this subsection, an | ||
appointee who files an inventory, appraisement, and list of claims | ||
under Subsection (a) shall set out in the inventory the appointee's | ||
appraisement of the fair market value of each item in the inventory | ||
on the date of the appointee's qualification. If an inventory, | ||
appraisement, and list of claims has not been filed by any former | ||
personal representative, the appointee shall set out the inventory | ||
as provided by Sections 309.051 and 309.052. | ||
(c) On the application of any person interested in the | ||
estate, the court shall, in an order appointing a successor | ||
representative of an estate, appoint appraisers as in an original | ||
appointment. | ||
SECTION 48. Section 362.005, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 362.005. CITATION AND NOTICE ON PRESENTATION OF | ||
ACCOUNT. (a) On the presentation of an account for final settlement | ||
by a temporary or permanent personal representative, the county | ||
clerk shall issue citation to the persons and in the manner provided | ||
by Subsection (b) [ |
||
(b) Citation issued under Subsection (a) must: | ||
(1) contain: | ||
(A) [ |
||
settlement has been presented; | ||
(B) [ |
||
consider the account; and | ||
(C) [ |
||
to appear and contest the account, if the person wishes to contest | ||
the account; and | ||
(2) be given[ |
||
[ |
||
heir or beneficiary of the decedent by certified mail, return | ||
receipt requested, unless the court by written order directs | ||
another method of service [ |
||
|
||
(c) The personal representative shall also provide to each | ||
person entitled to citation under Subsection (b) a copy of the | ||
account for final settlement either by: | ||
(1) certified mail, return receipt requested; or | ||
(2) electronic delivery, including facsimile or | ||
e-mail. | ||
(d) The court by written order shall require additional | ||
notice if the court considers the additional notice necessary. | ||
(e) The court may allow the waiver of citation [ |
||
an account for final settlement in a proceeding concerning a | ||
decedent's estate. | ||
(f) The personal representative shall file an affidavit | ||
sworn to by the personal representative or a certificate signed by | ||
the personal representative's attorney stating: | ||
(1) that the citation was given as required by this | ||
section; | ||
(2) the name of each person to whom the citation was | ||
given, if the person's name is not shown on the proof of delivery; | ||
(3) the name of each person executing a waiver of | ||
citation; and | ||
(4) that each person entitled to citation was provided | ||
a copy of the account for final settlement, indicating the method of | ||
delivery for each person. | ||
SECTION 49. Section 362.011, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 362.011. PARTITION AND DISTRIBUTION OF ESTATE; DEPOSIT | ||
IN COURT'S REGISTRY. (a) If, on final settlement of an estate, any | ||
of the estate remains in the personal representative's possession, | ||
the court shall order that a partition and distribution be made | ||
among the persons entitled to receive that part of the estate. | ||
(b) The court shall order the personal representative to | ||
convert into money any remaining nonmonetary assets to which a | ||
person who is unknown or missing is entitled. The procedures in | ||
Chapter 356 apply to the conversion of nonmonetary assets under | ||
this subsection. | ||
(c) The court shall order the personal representative to | ||
deposit in an account in the court's registry all money, including | ||
the proceeds of any conversion under Subsection (b), to which a | ||
person who is unknown or missing is entitled. The court shall hold | ||
money deposited in an account under this subsection until the court | ||
renders: | ||
(1) an order requiring money in the account to be paid | ||
to the previously unknown or missing person who is entitled to the | ||
money; or | ||
(2) another order regarding the disposition of the | ||
money. | ||
SECTION 50. Section 362.013, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 362.013. DISCHARGE OF PERSONAL REPRESENTATIVE WHEN | ||
ESTATE FULLY ADMINISTERED. The court shall enter an order | ||
discharging a personal representative from the representative's | ||
trust and declaring the estate closed when: | ||
(1) the representative has fully administered the | ||
estate in accordance with this title and the court's orders; | ||
(2) the representative's account for final settlement | ||
has been approved; and | ||
(3) the representative has: | ||
(A) delivered all of the estate remaining in the | ||
representative's possession to the person or persons entitled to | ||
receive that part of the estate; and | ||
(B) with respect to the portion of the estate | ||
distributable to an unknown or missing person, complied with an | ||
order of the court under Section 362.011. | ||
SECTION 51. Section 401.001(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(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 any required | ||
[ |
||
estate. | ||
SECTION 52. Section 401.004(d), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(d) If a trust is created in the decedent's will or if the | ||
decedent's will devises property to a trustee as described by | ||
Section 254.001, the person or class of persons entitled to receive | ||
property outright from the trust on the decedent's death and those | ||
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. | ||
SECTION 53. Section 401.006, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
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 [ |
||
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 [ |
||
property that may be consented to by the beneficiaries who are to | ||
receive any interest in the [ |
||
independent administration or in their consents to the independent | ||
administration. The independent executor, in such event, may sell | ||
the [ |
||
without the further consent of those beneficiaries. | ||
SECTION 54. Section 403.055, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
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 | ||
before the 121st [ |
||
notice is received or the claim is barred. | ||
SECTION 55. Section 403.056(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(a) Notice to the independent executor required by Sections | ||
403.052 and 403.055 must be contained in: | ||
(1) a written instrument that complies with Section | ||
355.004 and 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 that complies with Section | ||
355.004 or a pleading filed in the court in which the administration | ||
of the estate is pending. | ||
SECTION 56. Section 404.001(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(a) At any time after the expiration of 15 months after the | ||
date that the court clerk first issues letters testamentary or of | ||
administration to any personal representative of an estate [ |
||
|
||
|
||
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. | ||
SECTION 57. Chapter 404, Estates Code, as effective January | ||
1, 2014, is amended by amending Section 404.003 and adding Sections | ||
404.0035, 404.0036, and 404.0037 to read as follows: | ||
Sec. 404.003. REMOVAL OF INDEPENDENT EXECUTOR WITHOUT | ||
NOTICE. The probate court, on the court's own motion or on the | ||
motion of any interested person, and without notice, may remove an | ||
independent executor appointed under this subtitle when: | ||
(1) the independent executor cannot be served with | ||
notice or other processes because: | ||
(A) the independent executor's whereabouts are | ||
unknown; | ||
(B) the independent executor is eluding service; | ||
or | ||
(C) the independent executor is a nonresident of | ||
this state without a designated resident agent; or | ||
(2) sufficient grounds appear to support a belief that | ||
the independent executor has misapplied or embezzled, or is about | ||
to misapply or embezzle, all or part of the property committed to | ||
the independent executor's care. | ||
Sec. 404.0035. REMOVAL OF INDEPENDENT EXECUTOR WITH NOTICE. | ||
(a) The probate court, on the court's own motion, may remove an | ||
independent executor appointed under this subtitle after providing | ||
30 days' written notice of the court's intent to remove the | ||
independent executor, by certified mail, return receipt requested, | ||
to the independent executor's last known address and to the last | ||
known address of the independent executor's attorney of record, if | ||
the independent executor: | ||
(1) neglects to qualify in the manner and time | ||
required by law; or | ||
(2) fails to return, before the 91st day after the date | ||
the independent executor qualifies, either an inventory of the | ||
estate property and a 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, unless that deadline | ||
is extended by court order. | ||
(b) 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: | ||
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accounting which is required by law to be made; | ||
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file the affidavit or certificate required by Section 308.004; | ||
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been guilty of gross misconduct or gross mismanagement in the | ||
performance of the independent executor's duties; | ||
(4) [ |
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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; or | ||
(5) [ |
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of properly performing the independent executor's fiduciary duties | ||
due to a material conflict of interest. | ||
Sec. 404.0036. REMOVAL ORDER. (a) [ |
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removal of an independent executor 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 independent | ||
executor. The order of removal shall require that letters issued | ||
to the removed independent executor shall be surrendered and that | ||
all letters shall be canceled of record. | ||
(b) If an independent executor is removed by the court under | ||
Section 404.003 or 404.0035 [ |
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application, appoint a successor independent executor as provided | ||
by Section 404.005. | ||
Sec. 404.0037. COSTS AND EXPENSES RELATED TO REMOVAL OF | ||
INDEPENDENT EXECUTOR. (a) [ |
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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. | ||
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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. | ||
SECTION 58. Sections 404.005(b) and (c), Estates Code, as | ||
effective January 1, 2014, are amended to read as follows: | ||
(b) Except as otherwise provided by this subsection, if [ |
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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. If a distributee described in this | ||
section is a minor and has no guardian of the person, a natural | ||
guardian of the minor may sign the application for the order | ||
continuing independent administration on the minor's behalf unless | ||
a conflict of interest exists between the minor and the natural | ||
guardian. | ||
(c) Except as otherwise provided by this subsection, if [ |
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a trust is created in the decedent's will or if the decedent's will | ||
devises property to a trustee as described by Section 254.001, the | ||
person or class of persons entitled to receive property outright | ||
from the trust on the decedent's death and those 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. If a person | ||
considered to be a distributee under this subsection is an | ||
incapacitated person, the trustee or cotrustee may apply for the | ||
order continuing independent administration or sign the | ||
application on the incapacitated person's behalf if the trustee or | ||
cotrustee is not the person proposed to serve as the independent | ||
executor. | ||
SECTION 59. Section 405.001(b), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(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 may: | ||
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in the manner provided for the partition and distribution of | ||
property incapable of division in supervised estates; or | ||
(2) order distribution of that portion of the estate | ||
incapable of distribution without prior partition or sale in | ||
undivided interests. | ||
SECTION 60. Section 551.001(a), Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
(a) The court, by written order, shall require the executor | ||
or administrator of an estate to pay to the comptroller as provided | ||
by this subchapter the share of that estate of a person entitled to | ||
that share who does not demand the share, including any portion | ||
deposited in an account in the court's registry under Section | ||
362.011(c), from the executor or administrator within six months | ||
after the date of, as applicable: | ||
(1) a court order approving the report of the | ||
commissioners of partition made under Section 360.154; or | ||
(2) the settlement of the final account of the | ||
executor or administrator. | ||
SECTION 61. Section 122.057, Estates Code, as effective | ||
January 1, 2014, is repealed. | ||
SECTION 62. (a) The changes in law made by Section 111.051, | ||
Estates Code, as amended by this Act, and Section 111.054, Estates | ||
Code, as added by this Act, represent the fundamental policy of this | ||
state for the protection of its residents and are intended to | ||
prevail over the laws of another state or jurisdiction, to the | ||
extent those laws are in conflict with Texas law. | ||
(b) The changes in law made by Section 111.051, Estates | ||
Code, as amended by this Act, and Section 111.054, Estates Code, as | ||
added by this Act, apply to an account at a financial institution, | ||
an insurance contract, an annuity contract, a retirement account, a | ||
beneficiary designation, or another similar arrangement of a person | ||
who dies on or after the effective date of this Act. | ||
SECTION 63. (a) Section 21.005(b), Estates Code, as added | ||
by this Act, applies 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. | ||
(b) The changes in law made by this Act to Sections 204.151 | ||
and 204.152, Estates Code, apply only to a proceeding to declare | ||
heirship commenced on or after January 1, 2014. A proceeding to | ||
declare heirship commenced before that date is governed by the law | ||
in effect on the date the proceeding was commenced, and the former | ||
law is continued in effect for that purpose. | ||
(c) The changes in law made by this Act to Section | ||
304.001(c), Estates Code, apply only to an application for the | ||
grant of letters testamentary or of administration of a decedent's | ||
estate filed on or after January 1, 2014. An application for the | ||
grant of letters testamentary or of administration of a decedent's | ||
estate filed before that date is governed by the law in effect on | ||
the date the application was filed, and the former law is continued | ||
in effect for that purpose. | ||
(d) The changes in law made by Sections 32.006, 256.052, | ||
256.053, 256.054, 256.152(c), 256.153, 256.154, 256.155(a), | ||
256.156, 256.203, 257.052, 257.053, 401.001(a), 401.004(d), and | ||
401.006, Estates Code, as amended by this Act, and Section 53.107, | ||
Estates Code, as added by this Act, 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. | ||
(e) The changes in law made by Sections 51.203(c), 53.104, | ||
305.002(a), 305.003, 308.054(b), 309.051(a), 309.056, 309.103(a) | ||
and (b), 355.060, 361.155(b), 362.005, 362.011, 362.013, | ||
404.001(a), 404.003, 404.005(b) and (c), 405.001(b), and | ||
551.001(a), Estates Code, as amended by this Act, and Sections | ||
253.001(c), 301.155, 305.004, 309.057, 361.155(c), 404.0035, | ||
404.0036, and 404.0037, Estates Code, as added by this Act, apply to | ||
the administration of the estate of a decedent that is pending or | ||
commenced on or after the effective date of this Act. | ||
(f) The changes in law made by Sections 102.004, 201.001(f) | ||
and (g), 201.051, 201.052(b), 202.004, 202.009, 202.056, 202.151, | ||
353.101(d), 403.055, and 403.056(a), Estates Code, as amended by | ||
this Act, and Sections 201.001(i) and (j), 201.052(a-1), 202.0025, | ||
and 202.057, Estates Code, as added by this Act, 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. | ||
(g) Section 202.0025, Estates Code, as added by this Act, is | ||
intended to clarify current law in regard to the commencement of | ||
proceedings to declare heirship, and an inference may not be made | ||
regarding the statute of limitations for a proceeding to declare | ||
heirship filed before the effective date of this Act. | ||
(h) An inference may not be made from the changes in law made | ||
by this Act to Section 401.006, Estates Code, as to whether an | ||
independent executor had the authority to sell personal property of | ||
the estate in a probate proceeding filed before the effective date | ||
of this Act. | ||
SECTION 64. To the extent of any conflict, this Act prevails | ||
over another Act of the 83rd Legislature, Regular Session, 2013, | ||
relating to nonsubstantive additions to and corrections in enacted | ||
codes. | ||
SECTION 65. This Act takes effect January 1, 2014. | ||
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