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A BILL TO BE ENTITLED
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AN ACT
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relating to certain procedural matters in courts exercising probate |
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jurisdiction. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 361.052, Estates Code, is amended to |
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read as follows: |
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Sec. 361.052. REMOVAL WITH NOTICE. (a) The court may |
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remove a personal representative on the court's own motion, or on |
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the complaint of any interested person, after the representative |
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has been cited by personal service to answer at a time and place set |
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[fixed] in the notice, if: |
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(1) sufficient grounds appear to support a belief that |
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the representative has misapplied, embezzled, or removed from the |
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state, or is about to misapply, embezzle, or remove from the state, |
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all or part of the property entrusted to the representative's care; |
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(2) the representative fails to return any account |
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required by law to be made; |
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(3) the representative fails to obey a proper order of |
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the court that has jurisdiction with respect to the performance of |
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the representative's duties; |
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(4) the representative is proved to have been guilty |
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of gross misconduct, or mismanagement in the performance of the |
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representative's duties; |
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(5) the representative: |
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(A) becomes incapacitated; |
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(B) is sentenced to the penitentiary; or |
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(C) from any other cause, becomes incapable of |
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properly performing the duties of the representative's trust; or |
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(6) the representative, as executor or administrator, |
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fails to[:
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[(A)] make a final settlement by the third |
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anniversary of the date letters testamentary or of administration |
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are granted, unless that period is extended by the court on a |
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showing of sufficient cause supported by oath[; or
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[(B)
timely file the affidavit or certificate
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required by Section 308.004]. |
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(b) If a personal representative, as executor or |
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administrator, fails to timely file the affidavit or certificate |
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required by Section 308.004, the court, on the court's own motion, |
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may remove the personal representative after providing 30 days' |
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written notice to the personal representative to answer at a time |
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and place set in the notice, by certified mail, return receipt |
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requested, to: |
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(1) the representative's last known address; and |
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(2) the last known address of the representative's |
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attorney of record. |
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SECTION 2. Section 404.0035, Estates Code, is amended to |
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read as follows: |
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Sec. 404.0035. REMOVAL OF INDEPENDENT EXECUTOR WITH NOTICE. |
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(a) The probate court, on the court's own motion, may remove an |
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independent executor appointed under this subtitle after providing |
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30 days' written notice of the court's intention to the independent |
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executor, requiring answering at a time and place set in the notice |
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[of the court's intent to remove the independent executor], by |
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certified mail, return receipt requested, to the independent |
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executor's last known address and to the last known address of the |
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independent executor's attorney of record, if the independent |
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executor: |
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(1) neglects to qualify in the manner and time |
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required by law; [or] |
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(2) fails to return, before the 91st day after the date |
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the independent executor qualifies, either an inventory of the |
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estate property and a list of claims that have come to the |
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independent executor's knowledge or an affidavit in lieu of the |
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inventory, appraisement, and list of claims, unless that deadline |
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is extended by court order; or |
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(3) fails to timely file the affidavit or certificate |
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required by Section 308.004. |
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(b) The probate court, on its own motion or on motion of any |
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interested person, after the independent executor has been cited by |
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personal service to answer at a time and place set [fixed] in the |
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notice, may remove an independent executor when: |
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(1) the independent executor fails to make an |
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accounting which is required by law to be made; |
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(2) [the independent executor fails to timely file the
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affidavit or certificate required by Section 308.004;
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[(3)] the independent executor is proved to have been |
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guilty of gross misconduct or gross mismanagement in the |
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performance of the independent executor's duties; |
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(3) [(4)] the independent executor becomes an |
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incapacitated person, or is sentenced to the penitentiary, or from |
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any other cause becomes legally incapacitated from properly |
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performing the independent executor's fiduciary duties; or |
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(4) [(5)] the independent executor becomes incapable |
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of properly performing the independent executor's fiduciary duties |
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due to a material conflict of interest. |
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SECTION 3. Section 1023.003, Estates Code, is amended to |
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read as follows: |
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Sec. 1023.003. [APPLICATION FOR] TRANSFER OF GUARDIANSHIP |
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TO ANOTHER COUNTY. (a) When a guardian or any other person desires |
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to transfer the transaction of the business of the guardianship |
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from one county to another, the person shall file a written |
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application in the court in which the guardianship is pending |
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stating the reason for the transfer. |
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(b) With notice as provided by Section 1023.004, the court |
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in which a guardianship is pending, on the court's own motion, may |
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transfer the transaction of the business of the guardianship to |
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another county if the ward resides in the county to which the |
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guardianship is to be transferred. |
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SECTION 4. Section 1023.004, Estates Code, is amended to |
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read as follows: |
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Sec. 1023.004. NOTICE. (a) On filing an application or on |
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motion of a court to transfer a guardianship to another county under |
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Section 1023.003, the sureties on the bond of the guardian shall be |
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cited by personal service to appear and show cause why the |
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guardianship [application] should not be transferred [granted]. |
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(b) If an application is filed by a person other than the |
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guardian or if a court made a motion to transfer a guardianship, the |
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guardian shall be cited by personal service to appear and show cause |
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why the guardianship [application] should not be transferred |
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[granted]. |
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SECTION 5. Section 1023.005, Estates Code, is amended to |
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read as follows: |
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Sec. 1023.005. COURT ACTION. On hearing an application or |
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motion under Section 1023.003, if good cause is not shown to deny |
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the transfer [application] and it appears that transfer of the |
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guardianship is in the best interests of the ward, the court shall |
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enter an order: |
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(1) authorizing the transfer on payment on behalf of |
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the estate of all accrued costs; and |
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(2) requiring that any existing bond of the guardian |
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must remain in effect until a new bond has been given or a rider has |
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been filed in accordance with Section 1023.010. |
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SECTION 6. Section 1203.052, Estates Code, is amended by |
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amending Subsection (a) and adding Subsection (a-1) to read as |
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follows: |
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(a) The court may remove a guardian as provided by |
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Subsection (a-1) [on the court's own motion, or on the complaint of
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an interested person, after the guardian has been cited by personal
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service to answer at a time and place set in the notice,] if: |
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(1) sufficient grounds appear to support a belief that |
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the guardian has misapplied, embezzled, or removed from the state, |
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or is about to misapply, embezzle, or remove from the state, any of |
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the property entrusted to the guardian's care; |
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(2) the guardian fails to return any account or report |
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that is required by law to be made; |
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(3) the guardian fails to obey a proper order of the |
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court that has jurisdiction with respect to the performance of the |
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guardian's duties; |
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(4) the guardian is proved to have been guilty of gross |
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misconduct or mismanagement in the performance of the guardian's |
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duties; |
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(5) the guardian: |
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(A) becomes incapacitated; |
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(B) is sentenced to the penitentiary; or |
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(C) from any other cause, becomes incapable of |
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properly performing the duties of the guardian's trust; |
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(6) the guardian has engaged in conduct with respect |
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to the ward that would be considered to be abuse, neglect, or |
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exploitation, as those terms are defined by Section 48.002, Human |
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Resources Code, if engaged in with respect to an elderly or disabled |
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person, as defined by that section; |
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(7) the guardian neglects to educate or maintain the |
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ward as liberally as the means of the ward's estate and the ward's |
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ability or condition permit; |
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(8) the guardian interferes with the ward's progress |
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or participation in programs in the community; |
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(9) the guardian fails to comply with the requirements |
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of Subchapter G, Chapter 1104; |
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(10) the court determines that, because of the |
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dissolution of the joint guardians' marriage, the termination of |
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the guardians' joint appointment and the continuation of only one |
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of the joint guardians as the sole guardian is in the best interest |
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of the ward; or |
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(11) the guardian would be ineligible for appointment |
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as a guardian under Subchapter H, Chapter 1104. |
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(a-1) The court may remove a guardian for a reason listed in |
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Subsection (a) on the: |
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(1) court's own motion, after the guardian has been |
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notified, by certified mail, return receipt requested, to answer at |
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a time and place set in the notice; or |
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(2) complaint of an interested person, after the |
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guardian has been cited by personal service to answer at a time and |
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place set in the notice. |
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SECTION 7. Sections 361.052 and 404.0035, Estates Code, as |
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amended by this Act, apply to the estate of a decedent who dies |
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before, on, or after the effective date of this Act. |
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SECTION 8. Sections 1023.003, 1023.004, 1023.005, and |
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1203.052, Estates Code, as amended by this Act, apply to a |
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guardianship created before, on, or after the effective date of |
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this Act. |
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SECTION 9. This Act takes effect September 1, 2017. |