|
|
|
|
AN ACT
|
|
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 [Subtitles] X [and Y], Title 2, and Subtitles Y and Z, |
|
Title 3; and |
|
(2) Sections 311.005(4) and 311.012(b) and (c), |
|
Government Code, apply to Subtitle [Subtitles] X [and Y], Title 2, |
|
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) [(e) Nature of Proceeding.] The administration of the |
|
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) [commission may issue for taking] the depositions |
|
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; [or] |
|
(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 [, to be taxed as costs in] the |
|
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 [rules relating to witnesses and evidence
|
|
that apply in the district court] apply in a proceeding arising |
|
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 [The] |
|
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 201.051, 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 12. 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 13. 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 14. 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; |
|
(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 15. Section 202.009, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 202.009. ATTORNEY AD LITEM [REPRESENTATION OF
|
|
INTERESTS OF CERTAIN PERSONS]. (a) The [If it appears to the court
|
|
in a proceeding to declare heirship that there is or may be a living
|
|
heir whose name or whereabouts is unknown, or that a defendant is an
|
|
incapacitated person, the] court shall [may] appoint an attorney ad |
|
litem in a proceeding to declare heirship [or guardian ad litem] to |
|
represent the interests of heirs whose names or locations are |
|
unknown [that person.
The court may not appoint an attorney ad
|
|
litem or guardian ad litem unless the court finds that the
|
|
appointment is necessary to protect the interests of the living
|
|
heir or incapacitated person]. |
|
(b) The court may expand the appointment of the [shall
|
|
appoint an] attorney ad litem appointed under Subsection (a) to |
|
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 [to represent the interests of unknown
|
|
heirs]. |
|
SECTION 16. Section 202.056, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 202.056. WAIVER OF SERVICE OF CITATION [ON CERTAIN
|
|
PERSONS NOT PERMITTED]. A parent, managing conservator, guardian, |
|
attorney ad litem, or guardian ad litem of a minor distributee who: |
|
(1) is younger than 12 years of age [or older, but
|
|
younger than 19 years of age,] may [not] waive citation required by |
|
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 17. 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 affidavit or |
|
certificate required by Subsection (a) is filed. |
|
SECTION 18. Section 202.151, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 202.151. [WRITTEN] EVIDENCE IN PROCEEDING TO DECLARE |
|
HEIRSHIP. (a) The court may require that [all or] any testimony |
|
[part of the evidence] admitted as evidence in a proceeding to |
|
declare heirship be [:
|
|
[(1)] reduced to writing and subscribed and sworn to |
|
by the witnesses, respectively [; and
|
|
[(2)
filed in the proceeding and recorded in the
|
|
judge's probate docket]. |
|
(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 19. 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[:
|
|
[(1)
petitions the court for a determination of right
|
|
of inheritance as authorized by Section 201.052(c); and
|
|
[(2)] claims[:
|
|
[(A)] to be a biological child of the decedent or |
|
claims[, but with respect to whom a parent-child relationship with
|
|
the decedent was not established as provided by Section 160.201,
|
|
Family Code; or
|
|
[(B)] to inherit through a biological child of |
|
the decedent[, if a parent-child relationship between the
|
|
individual through whom the inheritance is claimed and the decedent
|
|
was not established as provided by Section 160.201, Family Code]. |
|
Sec. 204.152. PRESUMPTION; [REQUIRED FINDINGS IN ABSENCE
|
|
OF] REBUTTAL [EVIDENCE]. The presumption under Section 160.505, |
|
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. [Unless the results of genetic testing of another individual
|
|
who is an heir of the decedent who is the subject of a proceeding to
|
|
declare heirship to which this subchapter applies are admitted as
|
|
rebuttal evidence, the court shall find that the individual
|
|
described by Section 204.151:
|
|
[(1)
is an heir of the decedent, if the results of
|
|
genetic testing ordered under Subchapter B identify a tested
|
|
individual who is an heir of the decedent as the ancestor of the
|
|
individual described by Section 204.151; or
|
|
[(2)
is not an heir of the decedent, if the results of
|
|
genetic testing ordered under Subchapter B exclude a tested
|
|
individual who is an heir of the decedent as the ancestor of the
|
|
individual described by Section 204.151.] |
|
SECTION 20. 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 21. 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 |
|
[WRITTEN] WILL [GENERALLY]. |
|
SECTION 22. 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, state of residence, and physical address |
|
where service can be had [residence] of the [:
|
|
[(A) any] executor named in the will or other [,
|
|
if no executor is named, of the] person to whom the applicant |
|
desires that letters be issued; [and] |
|
(8) the name of [(B)] each subscribing witness to the |
|
will, if any; |
|
(9) [(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; |
|
(10) [(9)] whether a marriage of the testator was ever |
|
dissolved after the will was made and, if so, when and from whom; |
|
(11) [(10)] whether the state, a governmental agency |
|
of the state, or a charitable organization is named in the will as a |
|
devisee; and |
|
(12) [(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. |
|
SECTION 23. The heading to Section 256.053, Estates Code, |
|
as effective January 1, 2014, is amended to read as follows: |
|
Sec. 256.053. FILING OF [WRITTEN] WILL WITH APPLICATION FOR |
|
PROBATE GENERALLY REQUIRED. |
|
SECTION 24. 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 [written] will shall |
|
file the will with the application if the will is in the applicant's |
|
control. |
|
SECTION 25. Section 256.054, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 256.054. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO |
|
[WRITTEN] WILL IS PRODUCED. In addition to the requirements for an |
|
application under Section 256.052, if an applicant for the probate |
|
of a [written] will cannot produce the will in court, the |
|
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 26. Section 256.152(c), Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
(c) As an alternative to Subsection (b) [For purposes of
|
|
Subsection (b)], a will executed in another state or a foreign |
|
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 27. Section 256.153, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 256.153. PROOF OF EXECUTION OF [AUTHORIZED METHODS OF
|
|
PROVING] ATTESTED [WRITTEN] WILL. (a) An attested [written] will |
|
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 [in the same
|
|
manner and under the same rules as depositions are taken in other
|
|
civil actions]; |
|
(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 [in the same manner and under the same rules as
|
|
depositions are taken in other civil actions]; or |
|
(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 28. Section 256.154, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 256.154. PROOF OF EXECUTION [AUTHORIZED METHODS] OF |
|
[PROVING] HOLOGRAPHIC WILL. (a) A will wholly in the handwriting of |
|
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 [in the same manner and under the same
|
|
rules as depositions are taken in other civil actions]. |
|
(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 29. 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 [under the same
|
|
rules as depositions in other civil actions], applies if no contest |
|
has been filed with respect to an application for the probate of a |
|
will. |
|
SECTION 30. Section 256.156, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 256.156. PROOF OF [WRITTEN] WILL NOT PRODUCED IN |
|
COURT. (a) A [written] will that cannot be produced in court must |
|
be proved in the same manner as provided in Section 256.153 for an |
|
attested [written] will or Section 256.154 for a holographic will, |
|
as applicable. The same amount and character of testimony is |
|
required to prove the [written] will not produced in court as is |
|
required to prove a [written] will produced in court. |
|
(b) In addition to the proof required by Subsection (a): |
|
(1) the cause of the nonproduction of a [written] will |
|
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 31. 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 [written] will is not in the court's |
|
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 [written] |
|
wills in the custody of the court may be used. |
|
SECTION 32. Section 257.052, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 257.052. FILING OF [WRITTEN] WILL WITH APPLICATION |
|
GENERALLY REQUIRED. (a) An applicant for the probate of a |
|
[written] will as a muniment of title shall file the will with the |
|
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 33. Section 257.053, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 257.053. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO |
|
[WRITTEN] WILL IS PRODUCED. In addition to the requirements for an |
|
application under Section 257.051, if an applicant for the probate |
|
of a [written] will as a muniment of title cannot produce the will |
|
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 34. 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 35. Section 304.001(c), Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
(c) If persons [applicants for letters testamentary or of
|
|
administration] are equally entitled to letters testamentary or of |
|
administration [the letters], the court: |
|
(1) shall grant the letters to the person [applicant] |
|
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 [applicants]. |
|
SECTION 36. 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 [given] the required bond with the clerk; |
|
and |
|
(3) obtained the judge's approval of the bond [; and
|
|
[(4) filed the bond with the clerk]. |
|
SECTION 37. Section 305.003, Estates Code, as effective |
|
January 1, 2014, is amended to read as follows: |
|
Sec. 305.003. PERIOD FOR TAKING OATH [AND GIVING BOND]. An |
|
oath may be taken and subscribed [and a bond may be given and
|
|
approved] at any time before: |
|
(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 38. 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 39. 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 [within four months] after the date of |
|
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 40. 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 41. 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 42. 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 43. 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 [filed for the estate] |
|
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 44. 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 45. 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 [within
|
|
four months] after the date of receipt of the notice, the claim is |
|
barred. |
|
SECTION 46. 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 47. 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) [Subsections (c) and (d)]. |
|
(b) Citation issued under Subsection (a) must: |
|
(1) contain: |
|
(A) [(1)] a statement that an account for final |
|
settlement has been presented; |
|
(B) [(2)] the time and place the court will |
|
consider the account; and |
|
(C) [(3)] a statement requiring the person cited |
|
to appear and contest the account, if the person wishes to contest |
|
the account; and |
|
(2) be given[.
|
|
[(c) The personal representative shall give notice] to each |
|
heir or beneficiary of the decedent by certified mail, return |
|
receipt requested, unless the court by written order directs |
|
another method of service [type of notice] to be given[.
The notice
|
|
must include a copy of the account for final settlement]. |
|
(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 [notice] of |
|
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 48. 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 49. 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 50. 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 |
|
[an] inventory, appraisement, and list of claims of the person's |
|
estate. |
|
SECTION 51. 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 52. 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 [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. |
|
SECTION 53. 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 [not later than the 120th] day after the date the |
|
notice is received or the claim is barred. |
|
SECTION 54. 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 55. 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 [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. |
|
SECTION 56. 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: |
|
(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; |
|
(2) [(4)] the independent executor fails to timely |
|
file the affidavit or certificate required by Section 308.004; |
|
(3) [(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; |
|
(4) [(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; or |
|
(5) [(7)] the independent executor becomes incapable |
|
of properly performing the independent executor's fiduciary duties |
|
due to a material conflict of interest. |
|
Sec. 404.0036. REMOVAL ORDER. (a) [(b)] The order of |
|
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 [this section], the court may, on |
|
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) [(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. |
|
(b) [(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. |
|
SECTION 57. 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 [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. 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 [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, 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 58. 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: |
|
(1) [shall] order partition and distribution, or sale, |
|
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 59. 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 60. Section 122.057, Estates Code, as effective |
|
January 1, 2014, is repealed. |
|
SECTION 61. (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 62. (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), 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, 201.051, |
|
201.052(b), 202.004, 202.009, 202.056, 202.151, 353.101(d), |
|
403.055, 403.056(a), and 405.001(b), Estates Code, as amended by |
|
this Act, and Sections 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 63. 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 64. This Act takes effect January 1, 2014. |
|
|
|
______________________________ |
______________________________ |
|
President of the Senate |
Speaker of the House |
|
|
|
I certify that H.B. No. 2912 was passed by the House on May 2, |
|
2013, by the following vote: Yeas 147, Nays 0, 2 present, not |
|
voting; and that the House concurred in Senate amendments to H.B. |
|
No. 2912 on May 24, 2013, by the following vote: Yeas 145, Nays 0, |
|
1 present, not voting. |
|
|
|
______________________________ |
|
Chief Clerk of the House |
|
|
I certify that H.B. No. 2912 was passed by the Senate, with |
|
amendments, on May 21, 2013, by the following vote: Yeas 31, Nays |
|
0. |
|
|
|
______________________________ |
|
Secretary of the Senate |
|
APPROVED: __________________ |
|
Date |
|
|
|
__________________ |
|
Governor |