H.B. No. 2271

AN ACT

relating to decedents' estates and certain posthumous gifts.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 22.004(a), Estates Code, is amended to read as follows:

(a) "Child" includes an adopted child, regardless of whether the adoption occurred through:

(1) an existing or former statutory procedure; or

(2) an equitable adoption or acts of estoppel.

SECTION 2. Section 33.001, Estates Code, is amended to read as follows:

Sec. 33.001. PROBATE OF WILLS AND GRANTING OF LETTERS TESTAMENTARY AND OF ADMINISTRATION. (a) Venue for a probate proceeding to admit a will to probate or for the granting of letters testamentary or of administration is:

(1) in the county in which the decedent resided, if the decedent had a domicile or fixed place of residence in this state; or

(2) with respect to a decedent who did not have a domicile or fixed place of residence in this state:

(A) if the decedent died in this state, in the county in which:

(i) the decedent's principal estate was located at the time of the decedent's death; or

(ii) the decedent died; or

(B) if the decedent died outside of this state:

(i) in any county in this state in which the decedent's nearest of kin reside; or

(ii) if there is no next of kin of the decedent in this state, in the county in which the decedent's principal estate was located at the time of the decedent's death.

(b) For purposes of this section:

(1) the decedent's next of kin:

(A) is the decedent's surviving spouse, or if there is no surviving spouse, other relatives of the decedent within the third degree by consanguinity; and

(B) includes a person who legally adopted the decedent or has been legally adopted by the decedent and that person's descendants; and

(2) the decedent's nearest of kin is determined in accordance with order of descent, with the decedent's next of kin who is nearest in order of descent first, and so on.

SECTION 3. Sections 112.103(a) and (b), Estates Code, are amended to read as follows:

(a) The deceased spouse's signature to an agreement that is the subject of an application under Section 112.101 may be proved by:

(1) the sworn testimony of one witness taken in open court;

(2) the affidavit of one witness; or

(3) the written or oral deposition of one witness taken in accordance with Section 51.203 or the Texas Rules of Civil Procedure [the same manner and under the same rules as depositions in other civil actions].

(b) If the surviving spouse is competent to make an oath, the surviving spouse's signature to the agreement may be proved by:

(1) the sworn testimony of the surviving spouse taken in open court;

(2) the surviving spouse's affidavit; or

(3) the written or oral deposition of the surviving spouse taken in accordance with Section 51.203 or the Texas Rules of Civil Procedure [the same manner and under the same rules as depositions in other civil actions].

SECTION 4. Sections 113.252(a), (b), and (c), Estates Code, are amended to read as follows:

(a) A multiple-party account is not effective against:

(1) an estate of a deceased party to transfer to a survivor:

(A) amounts equal to the amounts of estate taxes and expenses charged under Subchapter A, Chapter 124, to the deceased party, P.O.D. payee, or beneficiary of the account; or

(B) if other assets of the estate are insufficient, amounts needed to pay debts, other taxes, and expenses of administration, including statutory allowances to the surviving spouse and minor children[, if other assets of the estate are insufficient]; or

(2) the claim of a secured creditor who has a lien on the account.

(b) A party, P.O.D. payee, or beneficiary who receives payment from a multiple-party account or causes a payment to be made to another person from a multiple-party account after the death of a deceased party is liable to account to the deceased party's personal representative for amounts the deceased party owned beneficially immediately before the party's death to the extent necessary to discharge the claims, expenses, and charges described by Subsection (a) [that remain unpaid after application of the deceased party's estate]. The party, P.O.D. payee, or beneficiary is not liable in an amount greater than the amount the party, P.O.D. payee, or beneficiary received or caused to be paid to another person from the multiple-party account after the deceased party's death.

(c) Any [A] proceeding by the personal representative of a deceased party to assert liability under Subsection (b)[:

[(1) may only be commenced if the personal representative receives a written demand by a surviving spouse, a creditor, or one acting for a minor child of the deceased party; and

[(2)] must be commenced on or before the second anniversary of the death of the deceased party.

SECTION 5. Section 123.052(a), Estates Code, is amended to read as follows:

(a) The dissolution of the marriage revokes a provision in a trust instrument that was executed by a divorced individual as settlor before the divorced individual's marriage was dissolved and that:

(1) is a revocable disposition or appointment of property made to the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual;

(2) revocably confers a general or special power of appointment on the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual; or

(3) revocably nominates the divorced individual's former spouse or any relative of the former spouse who is not a relative of the divorced individual to serve:

(A) as a personal representative, trustee, conservator, agent, or guardian; or

(B) in another fiduciary or representative capacity.

SECTION 6. Subchapter B, Chapter 123, Estates Code, is amended by adding Section 123.056 to read as follows:

Sec. 123.056. CERTAIN TRUSTS WITH DIVORCED INDIVIDUALS AS JOINT SETTLORS. (a) This section applies only to a trust created under a trust instrument that:

(1) was executed by two married individuals as settlors whose marriage to each other is subsequently dissolved; and

(2) includes a provision described by Section 123.052(a).

(b) On the death of one of the divorced individuals who is a settlor of a trust to which this section applies, the trustee shall divide the trust into two trusts, each of which shall be composed of the property attributable to the contributions of only one of the divorced individuals.

(c) An action authorized in a trust instrument described by Subsection (a) that requires the actions of both divorced individuals may be taken with respect to a trust established in accordance with Subsection (b) from the surviving divorced individual's contributions solely by that divorced individual.

(d) The provisions of this subchapter apply independently to each trust established in accordance with Subsection (b) as if the divorced individual from whose contributions the trust was established had been the only settlor to execute the trust instrument described by Subsection (a).

(e) This section does not apply if one of the following provides otherwise:

(1) a court order;

(2) the express terms of a trust instrument executed by the two divorced individuals before their marriage was dissolved; or

(3) an express provision of a contract relating to the division of the marital estate entered into between the two divorced individuals before, during, or after their marriage.

SECTION 7. Section 123.151, Estates Code, is amended by amending Subsections (a) and (b) and adding Subsections (c-1) and (d-1) to read as follows:

(a) In this section:

(1) "Beneficiary," "multiple-party account," "party," "P.O.D. account," and "P.O.D. payee" have the meanings assigned by Chapter 113.

(2) "Public retirement system" has the meaning assigned by Section 802.001, Government Code.

(3) "Relative" has the meaning assigned by Section 123.051.

(4) "Survivorship agreement" means an agreement described by Section 113.151.

(b) If[, after] a decedent established [designates a spouse or a relative of a spouse who is not a relative of the decedent as a P.O.D. payee or beneficiary, including alternative P.O.D. payee or beneficiary, on] a P.O.D. account or other multiple-party account and[,] the decedent's marriage was later [is] dissolved by divorce, annulment, or a declaration that the marriage is void, any payable on request after death [the] designation provision or provision of a survivorship agreement with respect to that account in favor of the decedent's former spouse or a relative of the former spouse who is not a relative of the decedent [on the account] is not effective as to that [the former] spouse or [the former spouse's] relative unless:

(1) the court decree dissolving the marriage:

(A) designates the former spouse or the former spouse's relative as the P.O.D. payee or beneficiary; or

(B) reaffirms the survivorship agreement or the relevant provision of the survivorship agreement in favor of the former spouse or the former spouse's relative;

(2) after the marriage was dissolved, the decedent:

(A) redesignated the former spouse or the former spouse's relative as the P.O.D payee or beneficiary; or

(B) reaffirmed the survivorship agreement in writing [after the marriage was dissolved]; or

(3) the former spouse or the former spouse's relative is designated to receive, or under the survivorship agreement would receive, the proceeds or benefits in trust for, on behalf of, or for the benefit of a child or dependent of either the decedent or the former spouse.

(c-1) If the provision of a survivorship agreement is not effective under Subsection (b), for purposes of determining the disposition of the decedent's interest in the account, the former spouse or former spouse's relative who would have received the decedent's interest if the provision were effective is treated as if that spouse or relative predeceased the decedent.

(d-1) A financial institution is not liable for payment of an account to a former spouse or the former spouse's relative as a party to the account, notwithstanding the fact that a designation or provision of a survivorship agreement in favor of that person is not effective under Subsection (b).

SECTION 8. Section 124.001(3), Estates Code, is amended to read as follows:

(3) "Estate tax" means any estate, inheritance, or death tax levied or assessed on the property of a decedent's estate because of the death of a person and imposed by federal, state, local, or foreign law, including the federal estate tax and the inheritance tax imposed by former Chapter 211, Tax Code, and including interest and penalties imposed in addition to those taxes. The term does not include a tax imposed under Section 2601 or 2701(d)(1)(A), Internal Revenue Code of 1986 (26 U.S.C. Section 2601 or 2701(d)).

SECTION 9. Section 201.054, Estates Code, is amended by adding Subsection (e) to read as follows:

(e) For purposes of this section, "adopted child" means a child:

(1) adopted through an existing or former statutory procedure; or

(2) considered by a court to be equitably adopted or adopted by acts of estoppel.

SECTION 10. The heading to Section 202.052, Estates Code, is amended to read as follows:

Sec. 202.052. SERVICE OF CITATION BY PUBLICATION [WHEN RECIPIENT'S NAME OR ADDRESS IS NOT ASCERTAINABLE].

SECTION 11. Section 202.057(a), Estates Code, is amended to read as follows:

(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) if service of citation is waived under Section 202.056:

(i) the name of each person who waived citation under that section; and

(ii) if citation is waived under Section 202.056(b)(1), the name of the distributee and the representative capacity of the person who waived citation required to be served on the distributee [Section 202.056].

SECTION 12. Section 205.001, Estates Code, is amended to read as follows:

Sec. 205.001. ENTITLEMENT TO ESTATE WITHOUT APPOINTMENT OF PERSONAL REPRESENTATIVE. The distributees of the estate of a decedent who dies intestate are entitled to the decedent's estate without waiting for the appointment of a personal representative of the estate to the extent the estate assets, excluding homestead and exempt property, exceed the known liabilities of the estate, excluding any liabilities secured by homestead and exempt property, if:

(1) 30 days have elapsed since the date of the decedent's death;

(2) no petition for the appointment of a personal representative is pending or has been granted;

(3) the value of the estate assets on the date of the affidavit described by Subdivision (4), excluding homestead and exempt property, does not exceed $75,000 [$50,000];

(4) an affidavit that meets the requirements of Section 205.002 is filed with the clerk of the court that has jurisdiction and venue of the estate;

(5) the judge approves the affidavit as provided by Section 205.003; and

(6) the distributees comply with Section 205.004.

SECTION 13. Section 251.001, Estates Code, is amended to read as follows:

Sec. 251.001. WHO MAY EXECUTE WILL. Under the rules and limitations prescribed by law, a person of sound mind has the right and power to make a [last] will [and testament] if, at the time the will is made, the person:

(1) is 18 years of age or older;

(2) is or has been married; or

(3) is 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 14. Section 251.002, Estates Code, is amended to read as follows:

Sec. 251.002. INTERESTS THAT MAY PASS BY WILL; DISINHERITANCE. (a) Subject to limitations prescribed by law, a person competent to make a [last] will [and testament] may devise under the will [and testament] all the estate, right, title, and interest in property the person has at the time of the person's death.

(b) A person who makes a [last] will [and testament] may:

(1) disinherit an heir; and

(2) direct the disposition of property or an interest passing under the will or by intestacy.

SECTION 15. Section 251.051, Estates Code, is amended to read as follows:

Sec. 251.051. WRITTEN, SIGNED, AND ATTESTED. Except as otherwise provided by law, a [last] will [and testament] must be:

(1) in writing;

(2) signed by:

(A) the testator in person; or

(B) another person on behalf of the testator:

(i) in the testator's presence; and

(ii) under the testator's direction; and

(3) attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator's presence.

SECTION 16. Section 251.103, Estates Code, is amended to read as follows:

Sec. 251.103. PERIOD FOR MAKING ATTESTED WILLS SELF-PROVED. A will [or testament] that meets the requirements of Section 251.051 may be made self-proved at:

(1) the time of the execution of the will [or testament]; or

(2) a later date during the lifetime of the testator and the witnesses.

SECTION 17. Sections 251.104(c), (d), and (e), Estates Code, are amended to read as follows:

(c) The self-proving affidavit shall be attached or annexed to the will [or testament].

(d) An affidavit that is in substantial compliance with the form of the affidavit provided by Subsection (e), that is subscribed and acknowledged by the testator, and that is subscribed and sworn to by the attesting witnesses is sufficient to self-prove the will. No other affidavit or certificate of a testator is required to self-prove a will [or testament] other than the affidavit provided by Subsection (e).

(e) The form and content of the self-proving affidavit must be substantially as follows:

THE STATE OF TEXAS

COUNTY OF ________________

Before me, the undersigned authority, on this day personally appeared _____________, _____________, and _____________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said _____________, testator, declared to me and to the said witnesses in my presence that said instrument is [his/her] [last] will [and testament], and that [he/she] had willingly made and executed it as [his/her] free act and deed; and the said witnesses, each on [his/her] oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is [his/her] [last] will [and testament], and that [he/she] executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at [his/her] request; that [he/she] was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States, or an auxiliary of the armed forces of the United States, or the United States Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.

_______________

Testator

_______________

Witness

_______________

Witness

Subscribed and sworn to before me by the said ____________, testator, and by the said ________________ and _______________, witnesses, this ______ day of ________________ A.D. ________________. (SEAL) (Signed) ______________________________ (Official Capacity of Officer)

SECTION 18. Section 251.107, Estates Code, is amended to read as follows:

Sec. 251.107. SELF-PROVED HOLOGRAPHIC WILL. Notwithstanding any other provision of this subchapter, a will written wholly in the testator's handwriting may be made self-proved at any time during the testator's lifetime by the attachment or annexation to the will of an affidavit by the testator to the effect that:

(1) the instrument is the testator's [last] will;

(2) the testator was 18 years of age or older at the time the will was executed or, if the testator was younger than 18 years of age, that the testator:

(A) was or had been married; or

(B) was 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 at the time the will was executed;

(3) the testator was of sound mind; and

(4) the testator has not revoked the will.

SECTION 19. Section 252.152, Estates Code, is amended to read as follows:

Sec. 252.152. PRIOR DEPOSITED WILL IN RELATION TO LATER WILL. A will that is not deposited as provided by Subchapter A shall be admitted to probate on proof that the will is the last will [and testament] of the testator, notwithstanding the fact that the testator has a prior will that has been deposited in accordance with Subchapter A.

SECTION 20. Section 255.151, Estates Code, is amended to read as follows:

Sec. 255.151. APPLICABILITY OF SUBCHAPTER. This subchapter applies unless the testator's [last] will [and testament] provides otherwise. For example, a devise in the testator's will stating "to my surviving children" or "to such of my children as shall survive me" prevents the application of Sections 255.153 and 255.154.

SECTION 21. Section 255.401, Estates Code, is amended by amending Subsection (a) and adding Subsection (a-1) to read as follows:

(a) A right to take as a member under a class gift does not accrue to any person unless the person is born before, or is in gestation at, the time of [the testator's] death of the person by which the class is measured and survives that person by [for] at least 120 hours.

(a-1) For purposes of this section, a [A] person is:

(1) considered to be in gestation [at the time of the testator's death] if insemination or implantation occurs at or before the time of [the testator's] death of the person by which the class is measured; and

(2) presumed to be in gestation at the time of death of the person by which the class is measured [the testator's death] if the person was born before the 301st day after the date of the person's [testator's] death.

SECTION 22. Section 255.451, Estates Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (c) to read as follows:

(a) Subject to the requirements of this section, on [On] the petition of a personal representative, a court may order that the terms of the will be modified or reformed, that the personal representative be directed or permitted to perform acts that are not authorized or that are prohibited by the terms of the will, or that the personal representative be prohibited from performing acts that are required by the terms of the will, if:

(1) modification of administrative, nondispositive terms of the will is necessary or appropriate to prevent waste or impairment of the estate's administration;

(2) the order is necessary or appropriate to achieve the testator's tax objectives or to qualify a distributee for government benefits and is not contrary to the testator's intent; or

(3) the order is necessary to correct a scrivener's error in the terms of the will, even if unambiguous, to conform with the testator's intent.

(a-1) A personal representative seeking to modify or reform a will under this section must file a petition on or before the fourth anniversary of the date the will was admitted to probate.

(c) Chapter 123, Property Code, applies to a proceeding under Subsection (a) that involves a charitable trust.

SECTION 23. Section 256.003(b), Estates Code, is amended to read as follows:

(b) Except as provided by Section 501.006 with respect to a foreign will, letters testamentary may not be issued if a will is admitted to probate after the fourth anniversary of the testator's death unless it is shown that the application for probate was filed on or before the fourth anniversary of the testator's death.

SECTION 24. Section 257.051(a), Estates Code, is amended to read as follows:

(a) An application for the probate of a will as a muniment of title 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, date, 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 of the executor named in the will;

(8) the name of each subscribing witness to the will, if any;

(9) 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) that the testator's estate does not owe an unpaid debt, other than any debt secured by a lien on real estate, or that for another reason there is no necessity for administration of the estate;

(11) whether a marriage of the testator was ever dissolved after the will was made and, if so, when and from whom; and

(12) whether the state, a governmental agency of the state, or a charitable organization is named in the will as a devisee.

SECTION 25. Section 257.054, Estates Code, is amended to read as follows:

Sec. 257.054. PROOF REQUIRED. An applicant for the probate of a will as a muniment of title must prove to the court's satisfaction that:

(1) the testator is dead;

(2) four years have not elapsed since the date of the testator's death and before the application;

(3) the court has jurisdiction and venue over the estate;

(4) citation has been served and returned in the manner and for the period required by this title;

(5) the testator's estate does not owe an unpaid debt, other than any debt secured by a lien on real estate, or that for another reason there is no necessity for administration of the estate;

(6) the testator did not revoke the will; and

(7) if the will is not self-proved in the manner provided by this title, the testator:

(A) executed the will with the formalities and solemnities and under the circumstances required by law to make the will valid; and

(B) at the time of executing the will was of sound mind and:

(i) was 18 years of age or older;

(ii) was or had been married; or

(iii) was 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 26. Section 305.108, Estates Code, is amended to read as follows:

Sec. 305.108. FORM OF BOND. The following form, or a form with the same substance, may be used for the bond of a personal representative:

The State of Texas

County of ________

Know all persons by these presents that we, _______ (insert name of each principal), as principal, and _______ (insert name of each surety), as sureties, are held and firmly bound unto the judge of ____________ (insert reference to appropriate judge), and that judge's successors in office, in the sum of _____ dollars, conditioned that the above bound principal or principals, appointed as _______ (insert "executor of the [last] will [and testament]," "administrator with the will annexed of the estate," "administrator of the estate," or "temporary administrator of the estate," as applicable) of _______ (insert name of decedent), deceased, shall well and truly perform all of the duties required of the principal or principals by law under that appointment.

SECTION 27. Sections 308.051(a) and (c), Estates Code, are amended to read as follows:

(a) Within one month after receiving letters testamentary or of administration, a personal representative of an estate shall provide notice requiring each person who has a claim against the estate to present the claim within the period prescribed by law by:

(1) having the notice published in a newspaper of general circulation [printed] in the county in which the letters were issued; and

(2) if the decedent remitted or should have remitted taxes administered by the comptroller, sending the notice to the comptroller by certified or registered mail.

(c) If there is no [a] newspaper of general circulation [is not printed] in the county in which the letters testamentary or of administration were issued, the notice must be posted and the return made and filed as otherwise required by this title.

SECTION 28. Section 310.006, Estates Code, is amended to read as follows:

Sec. 310.006. FREQUENCY AND METHOD OF DETERMINING INTERESTS IN CERTAIN ESTATE ASSETS. Except as required by Sections 2055 and 2056, Internal Revenue Code of 1986 (26 U.S.C. Sections 2055 and 2056), the frequency and method of determining the distributees' [beneficiaries'] respective interests in the undistributed assets of an estate are in the sole and absolute discretion of the executor of the estate. The executor may consider all relevant factors, including administrative convenience and expense and the interests of the various distributees [beneficiaries] of the estate, to reach a fair and equitable result among distributees [beneficiaries].

SECTION 29. Section 359.001(a), Estates Code, is amended to read as follows:

(a) Not later than the 60th day after [On] the first anniversary of [expiration of 12 months from] the date a personal representative qualifies and receives letters testamentary or of administration to administer a decedent's estate under court order, unless the court authorizes an extension, the representative shall file with the court an account consisting of a written exhibit made under oath that lists all claims against the estate presented to the representative during the 12-month period following the representative's qualification and receipt of letters [covered by the account]. The exhibit must specify:

(1) the claims allowed by the representative;

(2) the claims paid by the representative;

(3) the claims rejected by the representative and the date the claims were rejected; and

(4) the claims for which a lawsuit has been filed and the status of that lawsuit.

SECTION 30. Section 359.002(a), Estates Code, is amended to read as follows:

(a) Not later than the 60th day after each anniversary of the date a personal representative of the estate of a decedent qualifies and receives letters testamentary or of administration to administer the decedent's estate under court order, unless the court authorizes an extension, the [Each personal] representative [of the estate of a decedent] shall [continue to] file an annual account conforming to the essential requirements of Section 359.001 regarding changes in the estate assets occurring during the 12-month period after [since] the date the most recent previous account was filed.

SECTION 31. Section 362.005(b), Estates Code, is amended to read as follows:

(b) Citation issued under Subsection (a) must:

(1) contain:

(A) a statement that an account for final settlement has been presented;

(B) the time and place the court will consider the account; and

(C) a statement requiring the person cited to appear and contest the account, if the person wishes to contest the account; and

(2) be given to each heir or distributee [beneficiary] of the decedent by certified mail, return receipt requested, unless the court by written order directs another method of service to be given.

SECTION 32. Section 401.006, Estates Code, 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 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 any general or specific authority regarding the power of the independent executor to sell property that may be consented to by the distributees [beneficiaries] who are to receive any interest in the property in the application for independent administration or for the appointment of an independent executor or in their consents to the independent administration or to the appointment of an independent executor. The independent executor, in such event, may sell the property under the authority granted in the court order without the further consent of those distributees [beneficiaries].

SECTION 33. Chapter 405, Estates Code, is amended by adding Section 405.0015 to read as follows:

Sec. 405.0015. DISTRIBUTIONS GENERALLY. Unless the will, if any, or a court order provides otherwise, an independent executor may, in distributing property not specifically devised that the independent executor is authorized to sell:

(1) make distributions in divided or undivided interests;

(2) allocate particular assets in proportionate or disproportionate shares;

(3) value the estate property for the purposes of acting under Subdivision (1) or (2); and

(4) adjust the distribution, division, or termination for resulting differences in valuation.

SECTION 34. Sections 405.003(b) and (d), Estates Code, are amended to read as follows:

(b) On the filing of an action under this section, each distributee [beneficiary] of the estate shall be personally served with citation, except for a distributee [beneficiary] who has waived the issuance and service of citation.

(d) On or before filing an action under this section, the independent executor must distribute to the distributees [beneficiaries] of the estate any of the remaining assets or property of the estate that remains in the independent executor's possession after all of the estate's debts have been paid, except for a reasonable reserve of assets that the independent executor may retain in a fiduciary capacity pending court approval of the final account. The court may review the amount of assets on reserve and may order the independent executor to make further distributions under this section.

SECTION 35. Section 456.003, Estates Code, is amended to read as follows:

Sec. 456.003. DUTY OF ELIGIBLE INSTITUTIONS. Not later than the seventh business day [Within a reasonable time] after the date an eligible institution receives [receiving] a copy of a written agreement under Section 456.002(a) or a statement from a personal representative under Section 456.002(b) and instructions from the lawyer identified in the agreement or statement, as applicable, regarding how to disburse the funds or close a trust or escrow account, the [an] eligible institution shall disburse the funds and close the account in compliance with the instructions.

SECTION 36. Chapter 456, Estates Code, is amended by adding Section 456.0045 to read as follows:

Sec. 456.0045. PRIVATE CAUSE OF ACTION. (a) If an eligible institution violates Section 456.003, a person aggrieved by the violation may bring an action against the eligible institution to:

(1) obtain declaratory or injunctive relief to enforce the section; and

(2) recover damages to the same extent the person would be entitled to damages had the eligible institution acted in the same manner with respect to the deceased lawyer before the lawyer's death.

(b) A person who prevails in an action under this section may recover court costs and reasonable attorney's fees.

SECTION 37. Subchapter A, Chapter 112, Property Code, is amended by adding Section 112.011 to read as follows:

Sec. 112.011. POSTHUMOUS CLASS GIFTS MEMBERSHIP. (a) A right to take as a member under a class gift does not accrue to any person unless the person is born before, or is in gestation at, the time of death of the person by which the class is measured and survives that person by at least 120 hours.

(b) For purposes of Subsection (a), a person is:

(1) considered to be in gestation if insemination or implantation occurs at or before the time of death of the person by which the class is measured; and

(2) presumed to be in gestation at the time of death of the person by which the class is measured if the person was born before the 301st day after the date of the person's death.

(c) A provision in the trust instrument that is contrary to this section prevails over this section.

SECTION 38. Sections 303.003 and 362.010, Estates Code, are repealed.

SECTION 39. Section 33.001, Estates Code, as amended by this Act, applies only to an application for the probate of a will or for the granting of letters testamentary or of administration of a decedent's estate that is filed on or after the effective date of this Act. An application for the probate of a will or the granting of letters 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.

SECTION 40. Section 112.103, Estates Code, as amended by this Act, applies only to a proceeding under Subchapter C, Chapter 112, Estates Code, commenced on or after the effective date of this Act. A proceeding under that subchapter 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.

SECTION 41. Section 113.252(c), Estates Code, as amended by this Act, applies to a proceeding commenced before, on, or after the effective date of this Act, regardless of the date of the decedent's death.

SECTION 42. Section 123.056, Estates Code, as added by this Act, applies to a trust created before, on, or after the effective date of this Act with respect to which the marriage of the settlors is dissolved on or after that date.

SECTION 43. Sections 123.151(a) and (b), Estates Code, as amended by this Act, and Section 123.151(c-1), as added by this Act, apply only to a multiple-party account for which the marriage of a party to the account is dissolved on or after the effective date of this Act.

SECTION 44. Section 123.151(d-1), Estates Code, as added by this Act, and Section 456.0045, Estates Code, as added by this Act, apply only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrued before the effective date of this Act is governed by the law applicable to the cause of action immediately before the effective date of this Act, and that law is continued in effect for that purpose.

SECTION 45. Section 202.057, Estates Code, as amended by this Act, applies only to an application for a proceeding to declare heirship that is filed on or after the effective date of this Act. An application for a proceeding to declare heirship 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.

SECTION 46. Section 205.001, Estates Code, as amended by this Act, applies to a small estate administration commenced on or after the effective date of this Act, regardless of the date of the decedent's death.

SECTION 47. Section 255.401, Estates Code, as amended by this Act, and Section 112.011, Property Code, as added by this Act, apply to the estate of a decedent who dies before, on, or after the effective date of this Act.

SECTION 48. Section 255.451, Estates Code, as amended by this Act, applies only to a petition filed on or after the effective date of this Act. A petition filed before that date is governed by the law in effect on the date the petition was filed, and the former law is continued in effect for that purpose.

SECTION 49. Sections 256.003(b), 257.051(a), and 257.054, Estates Code, as amended by this Act, apply only to an application for the probate of a will or administration of a decedent's estate that is filed on or after the effective date of this Act. An application for the probate of a will or 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.

SECTION 50. Sections 359.001(a) and 359.002(a), Estates Code, as amended by this Act, apply to an account filed on or after the effective date of this Act, regardless of whether the personal representative was appointed before, on, or after that date.

SECTION 51. Section 405.0015, Estates Code, as added by this Act, applies to the administration of the estate of a decedent that is pending or commenced on or after the effective date of this Act.

SECTION 52. This Act takes effect September 1, 2017.

______________________________ ______________________________

President of the Senate Speaker of the House

I certify that H.B. No. 2271 was passed by the House on April 27, 2017, by the following vote: Yeas 144, Nays 0, 3 present, not voting, and that the House adopted H.C.R. No. 158 authorizing certain corrections in H.B. No. 2271 on May 28, 2017, by the following vote: Yeas 143, Nays 0, 2 present, not voting.

______________________________ Chief Clerk of the House

I certify that H.B. No. 2271 was passed by the Senate on May 19, 2017, by the following vote: Yeas 31, Nays 0, and that the Senate adopted H.C.R. No. 158 authorizing certain corrections in H.B. No. 2271 on May 28, 2017, by the following vote: Yeas 31, Nays 0.

______________________________ Secretary of the Senate APPROVED: _____________________

Date

_____________________

Governor