1-1 By: De La Garza (Senate Sponsor - Harris of Tarrant) H.B. No. 245
1-2 (In the Senate - Received from the House May 3, 1993;
1-3 May 4, 1993, read first time and referred to Committee on
1-4 Jurisprudence; May 18, 1993, reported favorably, as amended, by the
1-5 following vote: Yeas 4, Nays 0; May 18, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Henderson x
1-9 Harris of Tarrant x
1-10 Brown x
1-11 Harris of Dallas x
1-12 Luna x
1-13 Parker x
1-14 West x
1-15 COMMITTEE AMENDMENT NO. 1 By: Harris of Tarrant
1-16 Amend H.B. No. 245 in Section 1 of the bill, in added Section
1-17 137, Texas Probate Code, by striking Subsection (c) and
1-18 substituting the following:
1-19 (c) Title to a homestead that is the only real property in a
1-20 decedent's estate may be transferred on an affidavit that meets the
1-21 requirements of this section. An affidavit that is used to
1-22 transfer title to a homestead under this section must be recorded
1-23 in the deed records of a county in which the homestead is located.
1-24 A purchaser for value may rely on a recorded affidavit under this
1-25 section. A bona fide purchaser for value without actual or
1-26 constructive notice of an heir who is not disclosed in a recorded
1-27 affidavit under this section acquires title to a homestead free of
1-28 the interests of the undisclosed heir, but the bona fide purchaser
1-29 remains subject to a claim a creditor of the decedent has as
1-30 provided by law. A person has constructive notice of the rights of
1-31 an heir who is not disclosed in a recorded affidavit under this
1-32 section if an affidavit, judgment of heirship, or title transaction
1-33 in the chain of title in the deed records states that the heir of
1-34 the decedent who is not disclosed in the affidavit is an heir of
1-35 the decedent. An heir who is not disclosed in a recorded affidavit
1-36 under this section may recover from an heir who receives
1-37 consideration in a transfer to a bona fide purchaser for value of
1-38 title to a homestead passing under the affidavit.
1-39 A BILL TO BE ENTITLED
1-40 AN ACT
1-41 relating to the transfer of homestead property in certain small
1-42 estates.
1-43 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-44 SECTION 1. Section 137, Texas Probate Code, is amended to
1-45 read as follows:
1-46 Sec. 137. COLLECTION OF SMALL ESTATES UPON AFFIDAVIT.
1-47 (a) The distributees of an estate shall be entitled thereto, to
1-48 the extent that the assets, exclusive of homestead and exempt
1-49 property, exceed the known liabilities of said estate, without
1-50 awaiting the appointment of a personal representative when:
1-51 (1) <(a)> No petition for the appointment of a
1-52 personal representative is pending or has been granted; and
1-53 (2) <(b)> Thirty days have elapsed since the death of
1-54 the decedent; and
1-55 (3) <(c)> The value of the entire assets of the
1-56 estate, not including homestead and exempt property, does not
1-57 exceed $50,000; and
1-58 (4) <(d)> There is filed with the clerk of the court
1-59 having jurisdiction and venue an affidavit sworn to by two
1-60 disinterested witnesses and by such distributees as have legal
1-61 capacity, and, if the facts warrant, by the natural guardian or
1-62 next of kin of any minor or incompetent who is also a distributee,
1-63 which affidavit shall be examined by the judge of the court having
1-64 jurisdiction and venue; the judge may find, in his discretion, that
1-65 the affidavit conforms to the terms of this section; if the judge
1-66 approves the affidavit, the affidavit is to be recorded as an
1-67 official public record under Chapter 194, Local Government Code, or
1-68 if the county has not adopted a microfilm or microphotographic
2-1 process under Chapter 194, Local Government Code, the affidavit
2-2 must be recorded in "Small Estates" records by the clerk, showing
2-3 the existence of the foregoing conditions, including a list of the
2-4 assets and liabilities of the estate, the names and addresses of
2-5 the distributees, and their right to receive the money or property
2-6 of the estate, or to have such evidences of money, property or
2-7 other rights of the estate as found to exist transferred to them,
2-8 being heirs, devisees, or assignees, and listing all assets and
2-9 known liabilities of the estates; and
2-10 (5) <(e)> A copy of such affidavit, certified to by
2-11 said clerk, is furnished by the distributees of the estate to the
2-12 person or persons owing money to the estate, having custody or
2-13 possession of property of the estate, or acting as registrar,
2-14 fiduciary or transfer agent of or for evidences of interest,
2-15 indebtedness, property or other right belonging to said estate.
2-16 (b) This section does not affect the disposition of property
2-17 under the terms of a will or other testamentary document nor,
2-18 except as provided by Subsection (c) of this section, does it
2-19 transfer title to real property.
2-20 (c) Title to a homestead that is the only real property in a
2-21 decedent's estate may be transferred on an affidavit that meets the
2-22 requirements of this section. An affidavit that is used to
2-23 transfer title to a homestead under this section must be recorded
2-24 in the deed records of a county in which the homestead is located.
2-25 (d) The <Henceforth the> county clerk of every county that
2-26 has not adopted a microfilm or microphotographic process under
2-27 Chapter 194, Local Government Code, <in this state> shall provide
2-28 and keep in his office an appropriate book labeled "Small Estates,"
2-29 with accurate index, in which he shall record every such affidavit
2-30 so filed, upon being paid his legal recording fee, said index to
2-31 show the name of decedent and reference to land, if any, involved.
2-32 SECTION 2. This Act takes effect September 1, 1993, and
2-33 applies only to the distribution of the estate of a decedent who
2-34 dies on or after the effective date of this Act. The distribution
2-35 of the estate of a decedent who dies before the effective date of
2-36 this Act is covered by the law in effect when the decedent died,
2-37 and the former law is continued in effect for that purpose.
2-38 SECTION 3. The importance of this legislation and the
2-39 crowded condition of the calendars in both houses create an
2-40 emergency and an imperative public necessity that the
2-41 constitutional rule requiring bills to be read on three several
2-42 days in each house be suspended, and this rule is hereby suspended.
2-43 * * * * *
2-44 Austin,
2-45 Texas
2-46 May 18, 1993
2-47 Hon. Bob Bullock
2-48 President of the Senate
2-49 Sir:
2-50 We, your Committee on Jurisprudence to which was referred H.B. No.
2-51 245, have had the same under consideration, and I am instructed to
2-52 report it back to the Senate with the recommendation that it do
2-53 pass, as amended, and be printed.
2-54 Henderson,
2-55 Chairman
2-56 * * * * *
2-57 WITNESSES
2-58 FOR AGAINST ON
2-59 ___________________________________________________________________
2-60 Name: Randy M. Lee x
2-61 Representing: Stewar Title Co.
2-62 City: Austin
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2-64 Name: Alvin J. Golden x
2-65 Representing: Tx Academy of Probate Lawyers
2-66 City: Austin
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