Bill Text: TX SB911 | 2013-2014 | 83rd Legislature | Introduced

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Bill Title: Relating to decedents' estates.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Introduced - Dead) 2013-05-07 - Left pending in committee [SB911 Detail]

Download: Texas-2013-SB911-Introduced.html

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83R3601 MTB-F
By: Rodriguez S.B. No. 911

A BILL TO BE ENTITLED
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. 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 7. 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 8. 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) money in an account at a financial institution, in
a retirement account, or in another similar arrangement is owned,
immediately before a possible nontestamentary transfer of the
money, by one or more persons domiciled in this state; or
(2) benefits due under an insurance contract, annuity
contract, beneficiary designation, or other similar arrangement
are owned, immediately before a possible nontestamentary transfer
of the benefits, 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 money or
benefits described by Subsection (a) has occurred; and
(2) the ownership of the money or benefits 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 money or benefits 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 money or
benefits has occurred; or
(2) the ownership of the money or benefits 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 9. Section 201.001, Estates Code, as effective
January 1, 2014, is amended by amending Subsections (f) and (g) and
adding Subsections (i), (j), and (k) to read as follows:
(f) If none of the kindred described by Subsections (b)-(e)
survive the person, but the person is survived by a grandparent or a
descendant of a grandparent, the person's estate shall be divided
into two moieties, with:
(1) one moiety passing to the person's paternal
kindred as provided by Subsection (g); and
(2) one moiety passing to the person's maternal
kindred as provided by Subsection (h).
(g) The moiety passing to the person's paternal kindred
passes in the following order:
(1) if both paternal grandparents survive the person,
equal portions pass to the person's paternal grandfather and
grandmother;
(2) if only the person's paternal grandfather or
grandmother survives the person, the person's estate shall:
(A) be divided into two equal portions, with:
(i) one portion passing to the surviving
grandparent; and
(ii) one portion passing to the descendants
of the deceased grandparent; or
(B) pass entirely to the surviving grandparent if
no descendant of the deceased grandparent survives the person; and
(3) if neither the person's paternal grandfather nor
grandmother survives the person, the moiety passing to the
decedent's paternal kindred passes to the descendants of the
person's paternal grandfather and grandmother [, and so on without
end, passing] in like manner [to the nearest lineal ancestors and
their descendants].
(i) If none of the kindred described by Subsections (b)-(e)
survive the person and there is no surviving paternal grandparent
or descendant of a paternal grandparent or, in the alternative,
there is no surviving maternal grandparent or descendant of a
maternal grandparent, the entire estate passes to the decedent's
kindred on the side with the surviving grandparent or descendant of
a grandparent in the manner provided for a moiety under Subsection
(g) or (h).
(j) If none of the kindred described by Subsections (b)-(i)
survive the person, the person's estate escheats under Chapter 71,
Property Code.
(k) The limitation of heirs to grandparents and their
descendants provided in this section does not apply to a gift in a
written instrument to a person's heirs, unless the instrument
provides otherwise.
SECTION 10. 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 11. 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 12. 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 13. 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 14. 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 15. 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 16. 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 render a judgment in the proceeding to
declare heirship under Subchapter E until the applicant files the
affidavit required by this section.
SECTION 17. 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 or by deposition under the Texas Rules of Civil
Procedure.
SECTION 18. 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 19. 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 20. 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 residence or
business address 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 21. 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 22. 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 23. 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 24. 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 25. 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
the provisions of the Texas Rules of Civil Procedure relating to
written or oral depositions [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 the provisions of the Texas Rules of Civil
Procedure relating to written or oral depositions [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 26. 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 the provisions of the Texas
Rules of Civil Procedure relating to written or oral depositions
[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 27. 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 28. 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 29. 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 30. 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 31. 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 32. 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 under Rule 200, Texas Rules of Civil Procedure.
SECTION 33. 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 34. 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]. (a)
If an executor is named in a will that directs that the executor not
be required to give a bond or security, the [An] oath of the
executor may be taken and subscribed [and a bond may be given and
approved] at any time. An oath taken and subscribed by the executor
before the date of the order granting the letters testamentary is
effective on the date of the order granting the letters.
(b) The oath of a personal representative, other than an
executor described by Subsection (a), may be taken and subscribed
at any time after the date of the order granting letters
testamentary or of administration, as applicable.
(c) An oath under Subsection (a) or (b) must be taken,
subscribed, and filed 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 35. 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) Notwithstanding Subsection (b), a bond filed with the
clerk within the period prescribed by Subsection (a) is considered
to have been approved by the court following the 21st day after the
bond has been filed, until the court takes action on the bond.
(d) A bond that is not filed with the clerk within the period
prescribed by Subsection (a) may still be approved by the court, if
acceptable, but may not be considered approved without action of
the court.
SECTION 36. 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 37. 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 38. 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 to any person for
filing:
(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 39. 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 40. 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 41. 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 42. 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 have not been filed by any former
personal representative, the appointee shall set out the inventory
as provided by Section 309.051(b).
(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 43. 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 any remaining nonmonetary assets distributable to an
unknown or missing person into cash to be deposited into the court's
registry. The procedures in Chapter 356 apply to the conversion of
nonmonetary assets under this subsection.
SECTION 44. 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 45. 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 46. 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 47. 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 48. 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 49. 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 in the form required by
Section 355.004 that is hand-delivered with proof of receipt, or
mailed by certified mail, return receipt requested with proof of
receipt, to the independent executor or the executor's attorney;
(2) a pleading filed in a lawsuit with respect to the
claim; or
(3) a written instrument in the form required by
Section 355.004 or pleading filed in the court in which the
administration of the estate is pending.
SECTION 50. 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 51. 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 52. 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 53. 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 54. Section 122.057, Estates Code, as effective
January 1, 2014, is repealed.
SECTION 55. (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 56. (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 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, 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.
(c) 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), 362.011, 362.013, 404.001, 404.003,
404.005(b) and (c), and 405.001(b), Estates Code, as amended by
this Act, and Sections 253.001(c), 301.155, 305.004, 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.
(d) The changes in law made by Sections 102.004, 201.001(f)
and (g), 201.051, 201.052(b), 202.004, 202.009, 202.056, 202.151,
353.101(d), 403.055, and 403.056(a), Estates Code, as amended by
this Act, and Sections 201.001(i), (j), and (k), 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.
(e) 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.
(f) 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 57. 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 58. This Act takes effect January 1, 2014.