Bill Text: TX SB38 | 2017-2018 | 85th Legislature | Comm Sub
Bill Title: Relating to certain procedural matters in courts exercising probate jurisdiction.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Engrossed - Dead) 2017-05-23 - Placed on General State Calendar [SB38 Detail]
Download: Texas-2017-SB38-Comm_Sub.html
By: Zaffirini, et al. | S.B. No. 38 | |
(Murr) | ||
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relating to certain procedural matters in courts exercising probate | ||
jurisdiction. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 361.052, Estates Code, is amended to | ||
read as follows: | ||
Sec. 361.052. REMOVAL WITH NOTICE. (a) The court may | ||
remove a personal representative on the court's own motion, or on | ||
the complaint of any interested person, after the representative | ||
has been cited by personal service to answer at a time and place set | ||
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(1) sufficient grounds appear to support a belief that | ||
the representative has misapplied, embezzled, or removed from the | ||
state, or is about to misapply, embezzle, or remove from the state, | ||
all or part of the property entrusted to the representative's care; | ||
(2) the representative fails to return any account | ||
required by law to be made; | ||
(3) the representative fails to obey a proper order of | ||
the court that has jurisdiction with respect to the performance of | ||
the representative's duties; | ||
(4) the representative is proved to have been guilty | ||
of gross misconduct, or mismanagement in the performance of the | ||
representative's duties; | ||
(5) the representative: | ||
(A) becomes incapacitated; | ||
(B) is sentenced to the penitentiary; or | ||
(C) from any other cause, becomes incapable of | ||
properly performing the duties of the representative's trust; or | ||
(6) the representative, as executor or administrator, | ||
fails to[ |
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anniversary of the date letters testamentary or of administration | ||
are granted, unless that period is extended by the court on a | ||
showing of sufficient cause supported by oath[ |
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(b) If a personal representative, as executor or | ||
administrator, fails to timely file the affidavit or certificate | ||
required by Section 308.004, the court, on the court's own motion, | ||
may remove the personal representative after providing 30 days' | ||
written notice to the personal representative to answer at a time | ||
and place set in the notice, by certified mail, return receipt | ||
requested, to: | ||
(1) the representative's last known address; and | ||
(2) the last known address of the representative's | ||
attorney of record. | ||
SECTION 2. Section 404.0035, Estates Code, is amended to | ||
read as follows: | ||
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 intention to the independent | ||
executor, requiring answering at a time and place set in the notice | ||
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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; [ |
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(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; or | ||
(3) fails to timely file the affidavit or certificate | ||
required by Section 308.004. | ||
(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 set [ |
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notice, may remove an independent executor when: | ||
(1) the independent executor fails to make an | ||
accounting which is required by law to be made; | ||
(2) [ |
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guilty of gross misconduct or gross mismanagement in the | ||
performance of the independent executor's duties; | ||
(3) [ |
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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 | ||
(4) [ |
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of properly performing the independent executor's fiduciary duties | ||
due to a material conflict of interest. | ||
SECTION 3. Section 1023.003, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1023.003. [ |
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TO ANOTHER COUNTY. (a) When a guardian or any other person desires | ||
to transfer the transaction of the business of the guardianship | ||
from one county to another, the person shall file a written | ||
application in the court in which the guardianship is pending | ||
stating the reason for the transfer. | ||
(b) With notice as provided by Section 1023.004, the court | ||
in which a guardianship is pending, on the court's own motion, may | ||
transfer the transaction of the business of the guardianship to | ||
another county if the ward resides in the county to which the | ||
guardianship is to be transferred. | ||
SECTION 4. Section 1023.004, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1023.004. NOTICE. (a) On filing an application or on | ||
motion of a court to transfer a guardianship to another county under | ||
Section 1023.003, the sureties on the bond of the guardian shall be | ||
cited by personal service to appear and show cause why the | ||
guardianship [ |
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(b) If an application is filed by a person other than the | ||
guardian or if a court made a motion to transfer a guardianship, the | ||
guardian shall be cited by personal service to appear and show cause | ||
why the guardianship [ |
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SECTION 5. Section 1023.005, Estates Code, is amended to | ||
read as follows: | ||
Sec. 1023.005. COURT ACTION. On hearing an application or | ||
motion under Section 1023.003, if good cause is not shown to deny | ||
the transfer [ |
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guardianship is in the best interests of the ward, the court shall | ||
enter an order: | ||
(1) authorizing the transfer on payment on behalf of | ||
the estate of all accrued costs; and | ||
(2) requiring that any existing bond of the guardian | ||
must remain in effect until a new bond has been given or a rider has | ||
been filed in accordance with Section 1023.010. | ||
SECTION 6. Section 1203.052, Estates Code, is amended by | ||
amending Subsection (a) and adding Subsection (a-1) to read as | ||
follows: | ||
(a) The court may remove a guardian as provided by | ||
Subsection (a-1) [ |
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(1) sufficient grounds appear to support a belief that | ||
the guardian has misapplied, embezzled, or removed from the state, | ||
or is about to misapply, embezzle, or remove from the state, any of | ||
the property entrusted to the guardian's care; | ||
(2) the guardian fails to return any account or report | ||
that is required by law to be made; | ||
(3) the guardian fails to obey a proper order of the | ||
court that has jurisdiction with respect to the performance of the | ||
guardian's duties; | ||
(4) the guardian is proved to have been guilty of gross | ||
misconduct or mismanagement in the performance of the guardian's | ||
duties; | ||
(5) the guardian: | ||
(A) becomes incapacitated; | ||
(B) is sentenced to the penitentiary; or | ||
(C) from any other cause, becomes incapable of | ||
properly performing the duties of the guardian's trust; | ||
(6) the guardian has engaged in conduct with respect | ||
to the ward that would be considered to be abuse, neglect, or | ||
exploitation, as those terms are defined by Section 48.002, Human | ||
Resources Code, if engaged in with respect to an elderly or disabled | ||
person, as defined by that section; | ||
(7) the guardian neglects to educate or maintain the | ||
ward as liberally as the means of the ward's estate and the ward's | ||
ability or condition permit; | ||
(8) the guardian interferes with the ward's progress | ||
or participation in programs in the community; | ||
(9) the guardian fails to comply with the requirements | ||
of Subchapter G, Chapter 1104; | ||
(10) the court determines that, because of the | ||
dissolution of the joint guardians' marriage, the termination of | ||
the guardians' joint appointment and the continuation of only one | ||
of the joint guardians as the sole guardian is in the best interest | ||
of the ward; or | ||
(11) the guardian would be ineligible for appointment | ||
as a guardian under Subchapter H, Chapter 1104. | ||
(a-1) The court may remove a guardian for a reason listed in | ||
Subsection (a) on the: | ||
(1) court's own motion, after the guardian has been | ||
notified, by certified mail, return receipt requested, to answer at | ||
a time and place set in the notice; or | ||
(2) complaint of an interested person, after the | ||
guardian has been cited by personal service to answer at a time and | ||
place set in the notice. | ||
SECTION 7. Sections 361.052 and 404.0035, Estates Code, as | ||
amended by this Act, apply to the estate of a decedent who dies | ||
before, on, or after the effective date of this Act. | ||
SECTION 8. Sections 1023.003, 1023.004, 1023.005, and | ||
1203.052, Estates Code, as amended by this Act, apply to a | ||
guardianship created before, on, or after the effective date of | ||
this Act. | ||
SECTION 9. This Act takes effect September 1, 2017. |