1-1  By:  Thompson of Harris (Senate Sponsor - Whitmire)   H.B. No. 1200
    1-2        (In the Senate - Received from the House April 13, 1993;
    1-3  April 14, 1993, read first time and referred to Committee on
    1-4  Jurisprudence; May 4, 1993, reported favorably, as amended, by the
    1-5  following vote:  Yeas 5, Nays 0; May 4, 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:  Whitmire
   1-16        SECTION 5.  Section 45, Texas Probate Code, is amended to
   1-17  read as follows:
   1-18        Sec. 45.  COMMUNITY ESTATE.  (a)  On the intestate death of
   1-19  one of the spouses to a marriage, the community property estate of
   1-20  the deceased spouse passes to the surviving spouse if:
   1-21              (1)  no child or other descendant of the deceased
   1-22  spouse survives the deceased spouse; or
   1-23              (2)  all surviving children and descendants of the
   1-24  deceased spouse are also children or descendants of the surviving
   1-25  spouse.
   1-26        (b)  On the intestate death of one of the spouses to a
   1-27  marriage, if a child or other descendant of the deceased spouse
   1-28  survives the deceased spouse and the child or descendant is not a
   1-29  child or descendant of the surviving spouse, one-half of the
   1-30  community estate is retained by the surviving spouse and the other
   1-31  one-half passes to the children or descendants of the deceased
   1-32  spouse.  The <Upon the dissolution of the marriage relation by
   1-33  death, all property belonging to the community estate of the
   1-34  husband and wife shall go to the survivor, if there be no child or
   1-35  children of the deceased or their descendants; but if there be a
   1-36  child or children of the deceased, or descendants of such child or
   1-37  children, then the survivor shall be entitled to one half of said
   1-38  property, and the other half shall pass to such child or children,
   1-39  or their descendants.  But such> descendants shall inherit only such
   1-40  portion of said property to which they would be entitled under
   1-41  Section 43 of this code.  In every case, the community estate
   1-42  passes charged with the debts against it.
   1-43  COMMITTEE AMENDMENT NO. 2                            By:  Henderson
   1-44  Amend H.B. 1200 by adding the following as Section    and
   1-45  renumbering original sections accordingly:
   1-46        SECTION 34.  DUTIES OF A LIFE TENANT.  (a)  Subject to the
   1-47  provisions of subsection (2), if the life tenant of any legal life
   1-48  estate is given the power to sell and reinvest any life tenancy
   1-49  property then such life tenant shall, with respect to the sale and
   1-50  reinvestment of such property, be subject to all of the fiduciary
   1-51  duties of a trustee imposed by either the Texas Trust Code or the
   1-52  common law of Texas.
   1-53        (b)  A life tenant may retain, as life tenancy property, any
   1-54  real property originally conveyed to such life tenant without being
   1-55  subject to the fiduciary duties of a trustee; such person shall,
   1-56  however, be subject to the common law duties of a life tenant.
   1-57                         A BILL TO BE ENTITLED
   1-58                                AN ACT
   1-59  relating to decedents' estates, multiple-party accounts, and
   1-60  trusts.
   1-61        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-62        SECTION 1.  Section 37A, Texas Probate Code, is amended to
   1-63  read as follows:
   1-64        Sec. 37A.  Means of Evidencing Disclaimer or Renunciation of
   1-65  Property or Interest Receivable From a Decedent.  Any person, or
   1-66  the personal representative of an incompetent, deceased, unborn or
   1-67  unascertained, or minor person, with prior court approval of the
   1-68  court having, or which would have, jurisdiction over such personal
    2-1  representative, or any independent executor of a deceased person,
    2-2  without prior court approval, who may be entitled to receive any
    2-3  property as a beneficiary and who intends to effect disclaimer
    2-4  irrevocably on or after September 1, 1977, of the whole or any part
    2-5  of such property shall evidence same as herein provided.  A
    2-6  disclaimer evidenced as provided herein<,> shall be effective as of
    2-7  the death of decedent and shall relate back for all purposes to the
    2-8  death of the decedent and is not subject to the claims of any
    2-9  creditor of the disclaimant.  Unless the decedent's will provides
   2-10  otherwise, the property subject to the disclaimer <and the property
   2-11  subject thereof> shall pass as if the person disclaiming or on
   2-12  whose behalf a disclaimer is made had predeceased the decedent and
   2-13  a future interest that would otherwise take effect in possession or
   2-14  enjoyment after the termination of the estate or interest that is
   2-15  disclaimed takes effect as if the disclaiming beneficiary had
   2-16  predeceased the decedent <unless decedent's will provides
   2-17  otherwise>.  Failure to comply with the provisions hereof shall
   2-18  render such disclaimer ineffective except as an assignment of such
   2-19  property to those who would have received same had the person
   2-20  attempting the disclaimer died prior to the decedent.  The term
   2-21  "property" as used in this section shall include all legal and
   2-22  equitable interests, powers, and property, whether present or
   2-23  future, whether vested or contingent, and whether beneficial or
   2-24  burdensome, in whole or in part.  The term "disclaimer" as used in
   2-25  this section shall include "renunciation."  In this section
   2-26  "beneficiary" includes a person who would have been entitled, if
   2-27  the person had not made a disclaimer, to receive property as a
   2-28  result of the death of another person by inheritance, under a will,
   2-29  by an agreement between spouses for community property with a right
   2-30  of survivorship, by a joint tenancy with a right of survivorship,
   2-31  or by any other survivorship agreement, account, or interest in
   2-32  which the interest of the decedent passes to a surviving
   2-33  beneficiary, by an insurance, annuity, endowment, employment,
   2-34  deferred compensation, or other contract or arrangement, or under a
   2-35  pension, profit sharing, thrift, stock bonus, life insurance,
   2-36  survivor income, incentive, or other plan or program providing
   2-37  retirement, welfare, or fringe benefits with respect to an employee
   2-38  or a self-employed individual.  Nothing in this section shall be
   2-39  construed to preclude a subsequent disclaimer by any person who
   2-40  shall be entitled to property as a result of a disclaimer.  The
   2-41  following shall apply to such disclaimers:
   2-42        (a)  Written Memorandum of Disclaimer and Filing Thereof.  In
   2-43  the case of property receivable by a beneficiary, the disclaimer
   2-44  shall be evidenced by a written memorandum, acknowledged before a
   2-45  notary public or other person authorized to take acknowledgements
   2-46  of conveyances of real estate. Unless the beneficiary is a
   2-47  charitable organization or governmental agency of the state, a
   2-48  written memorandum of disclaimer disclaiming a present interest
   2-49  shall be filed not later than nine months after the death of the
   2-50  decedent and a written memorandum of disclaimer disclaiming a
   2-51  future interest may be filed not later than nine months after the
   2-52  event determining that the taker of the property or interest is
   2-53  finally ascertained and his interest is indefeasibly vested.  If
   2-54  the beneficiary is a charitable organization or a governmental
   2-55  agency of the state, a written memorandum of disclaimer disclaiming
   2-56  a present or future interest shall be filed not later than nine
   2-57  months after the beneficiary receives the notice required by
   2-58  Section 128A of this code.  The written memorandum of disclaimer
   2-59  shall be filed in the probate court in which the decedent's will
   2-60  has been probated or in which proceedings have been commenced for
   2-61  the administration of the decedent's estate or which has before it
   2-62  an application for either of the same; provided, however, if the
   2-63  administration of the decedent's estate is closed, or after the
   2-64  expiration of one year following the date of the issuance of
   2-65  letters testamentary in an independent administration, or if there
   2-66  has been no will of the decedent probated or filed for probate, or
   2-67  if no administration of the decedent's estate has been commenced,
   2-68  or if no application for administration of the decedent's estate
   2-69  has been filed, the written memorandum of disclaimer shall be filed
   2-70  with the county clerk of the county of the decedent's residence,
    3-1  or, if the decedent is not a resident of this state but real
    3-2  property or an interest therein located in this state is
    3-3  disclaimed, a written memorandum of disclaimer shall be filed with
    3-4  the county clerk of the county in which such real property or
    3-5  interest therein is located, and recorded by such county clerk in
    3-6  the deed records of that county.
    3-7        (b)  Notice of Disclaimer.  Unless the beneficiary is a
    3-8  charitable organization or governmental agency of the state, copies
    3-9  of any written memorandum of disclaimer shall be delivered in
   3-10  person to, or shall be mailed by registered or certified mail to
   3-11  and received by, the legal representative of the transferor of the
   3-12  interest or the holder of legal title to the property to which the
   3-13  disclaimer relates not later than nine months after the death of
   3-14  the decedent or, if the interest is a future interest, not later
   3-15  than nine months after the date the person who will receive the
   3-16  property or interest is finally ascertained and the person's
   3-17  interest is indefeasibly vested <date on which the transfer
   3-18  creating the interest in the disclaiming person is made>. If the
   3-19  beneficiary is a charitable organization or government agency of
   3-20  the state, the notices required by this section shall be filed not
   3-21  later than nine months after the beneficiary receives the notice
   3-22  required by Section 128A of this code.
   3-23        (c)  Power to Provide for Disclaimer.  Nothing herein shall
   3-24  prevent a person from providing in a will, insurance policy,
   3-25  employee benefit agreement, or other instrument for the making of
   3-26  disclaimers by a beneficiary of an interest receivable under that
   3-27  instrument and for the disposition of disclaimed property in a
   3-28  manner different from the provisions hereof.
   3-29        (d)  Irrevocability of Disclaimer.  Any disclaimer filed and
   3-30  served under this section shall be irrevocable.
   3-31        (e)  Partial Disclaimer.  Any person who may be entitled to
   3-32  receive any property as a beneficiary may disclaim such property in
   3-33  whole or in part, including but not limited to specific powers of
   3-34  invasion, powers of appointment, and fee estate in favor of life
   3-35  estates; and a partial disclaimer or renunciation, in accordance
   3-36  with the provisions of this section, shall be effective whether the
   3-37  property so renounced or disclaimed constitutes a portion of a
   3-38  single, aggregate gift or constitutes part or all of a separate,
   3-39  independent gift; provided, however, that a partial disclaimer
   3-40  shall be effective only with respect to property expressly
   3-41  described or referred to by category in such disclaimer; and
   3-42  provided further, that a partial disclaimer of property which is
   3-43  subject to a burdensome interest created by the decedent's will
   3-44  shall not be effective unless such property constitutes a gift
   3-45  which is separate and distinct from undisclaimed gifts.
   3-46        (f)  Partial Disclaimer by Spouse.  Without limiting
   3-47  Subsection (e) of this section, a disclaimer by the decedent's
   3-48  surviving spouse of a transfer by the decedent is not a disclaimer
   3-49  by the surviving spouse of all or any part of any other transfer
   3-50  from the decedent to or for the benefit of the surviving spouse,
   3-51  regardless of whether the property or interest that would have
   3-52  passed under the disclaimed transfer passes because of the
   3-53  disclaimer to or for the benefit of the surviving spouse by the
   3-54  other transfer.
   3-55        (g) <(f)>  Disclaimer After Acceptance.  No disclaimer shall
   3-56  be effective after the acceptance of the property by the
   3-57  beneficiary.  For the purpose of this section, acceptance shall
   3-58  occur only if the person making such disclaimer has previously
   3-59  taken possession or exercised dominion and control of such property
   3-60  in the capacity of beneficiary.
   3-61        (h) <(g)>  Interest in Trust Property.  A beneficiary who
   3-62  accepts an interest in a trust is not considered to have a direct
   3-63  or indirect interest in trust property that relates to a licensed
   3-64  or permitted business and over which the beneficiary exercises no
   3-65  control.  Direct or indirect beneficial ownership of not more than
   3-66  five percent of any class of equity securities that is registered
   3-67  under the Securities Exchange Act of 1934 shall not be deemed to be
   3-68  an ownership interest in the business of the issuer of such
   3-69  securities within the meaning of any statute, pursuant thereto.
   3-70        SECTION 2.  Section 24.002(12), Business & Commerce Code, is
    4-1  amended to read as follows:
    4-2              (12)  "Transfer" means every mode, direct or indirect,
    4-3  absolute or conditional, voluntary or involuntary, of disposing of
    4-4  or parting with an asset or an interest in an asset, and includes
    4-5  payment of money, release, lease, and creation of a lien or other
    4-6  encumbrance.  The term does not include a transfer under a
    4-7  disclaimer filed under Section 37A, Texas Probate Code, or Section
    4-8  112.010, Property Code.
    4-9        SECTION 3.  Section 112.010(d), Property Code, is amended to
   4-10  read as follows:
   4-11        (d)  A disclaimer under this section is effective as of the
   4-12  date of the transfer of the interest involved and relates back for
   4-13  all purposes to the date of the transfer and is not subject to the
   4-14  claims of any creditor of the disclaimant.  Unless the terms of the
   4-15  trust provide otherwise, <and> the interest that is the subject of
   4-16  the disclaimer passes as if the person disclaiming had predeceased
   4-17  the transfer and a future interest that would otherwise take effect
   4-18  in possession or enjoyment after the termination of the estate or
   4-19  interest that is disclaimed takes effect as if the disclaiming
   4-20  beneficiary had predeceased the transfer.   A disclaimer under this
   4-21  section is irrevocable.
   4-22        SECTION 4.  Section 44, Texas Probate Code, is amended to
   4-23  read as follows:
   4-24        Sec. 44.  ADVANCEMENTS <ADVANCEMENT BROUGHT INTO HOTCHPOTCH>.
   4-25  (a)  If a decedent dies intestate as to all or a portion of the
   4-26  decedent's estate, property the decedent gave during the decedent's
   4-27  lifetime to a person who, on the date of the decedent's death, is
   4-28  the decedent's heir, or property received by a decedent's heir
   4-29  under a nontestamentary transfer under Chapter XI of this code is
   4-30  an advancement against the heir's intestate share only if:
   4-31              (1)  the decedent declared in a contemporaneous writing
   4-32  or the heir acknowledged in writing that the gift or
   4-33  nontestamentary transfer is an advancement; or
   4-34              (2)  the decedent's contemporaneous writing or the
   4-35  heir's written acknowledgment otherwise indicates that the gift or
   4-36  nontestamentary transfer is to be taken into account in computing
   4-37  the division and distribution of the decedent's intestate estate.
   4-38        (b)  For purposes of Subsection (a) of this section, property
   4-39  that is advanced is valued at the time the heir came into
   4-40  possession or enjoyment of the property or at the time of the
   4-41  decedent's death, whichever occurs first.
   4-42        (c)  If the recipient of the property fails to survive the
   4-43  decedent, the property is not taken into account in computing the
   4-44  division and distribution of the decedent's intestate estate,
   4-45  unless the decedent's contemporaneous writing provides otherwise.
   4-46  <Whether any of the heirs of a person dying intestate shall have
   4-47  received from such intestate in his lifetime any real, personal or
   4-48  mixed estate by way of advancement, and shall choose to come into
   4-49  the partition and distribution of the estate with the other
   4-50  distributees, such advancement shall be brought into hotchpotch
   4-51  with the whole estate, and such party returning such advancement
   4-52  shall thereupon be entitled to his proper portion of the whole
   4-53  estate; provided that it shall be sufficient to account for the
   4-54  value of the property so brought into hotchpotch at the time it was
   4-55  advanced.  Every gratuitous inter vivos transfer is deemed to be an
   4-56  absolute gift and not an advancement unless proved to be an
   4-57  advancement.  If an advancee dies before the intestate, leaving a
   4-58  lineal heir who takes from the intestate, the advancement shall be
   4-59  taken into account in the same manner as if it had been directly to
   4-60  such heir.  If such heir is entitled to a lesser share in the
   4-61  estate than the advancee would have been entitled to had he
   4-62  survived the intestate, then the heir shall be charged only with
   4-63  such portion of the advancement as the amount he would have
   4-64  inherited, had there been no advancement, bears to the amount which
   4-65  the advancee would have inherited had there been no advancement.>
   4-66        SECTION 5.  Section 47(d), Texas Probate Code, is amended to
   4-67  read as follows:
   4-68        (d)  Joint Owners.  If any real or personal property,
   4-69  including community property with a right of survivorship, <stocks,
   4-70  bonds, bank deposits, or other intangible property> shall be so
    5-1  owned that one of two joint owners is entitled to the whole on the
    5-2  death of the other, and neither survives the other by 120 hours,
    5-3  these assets shall be distributed one-half as if one joint owner
    5-4  had survived and the other one-half as if the other joint owner had
    5-5  survived.  If there are more than two joint owners and all have
    5-6  died within a period of less than 120 hours, these assets shall be
    5-7  divided into as many equal portions as there are joint owners and
    5-8  these portions shall be distributed respectively to those who would
    5-9  have taken in the event that each joint owner survived.
   5-10        SECTION 6.  Section 58, Texas Probate Code, is amended by
   5-11  adding Subsections (c) and (d) to read as follows:
   5-12        (c)  A legacy of personal property does not include any
   5-13  contents of the property unless the will directs that the contents
   5-14  are included in the legacy.   A devise of real property does not
   5-15  include any personal property located on or associated with the
   5-16  real property or any contents of property located on the real
   5-17  property unless the will directs that the personal property or
   5-18  contents are included in the devise.
   5-19        (d)  In this section:
   5-20              (1)  "Contents" means tangible personal property other
   5-21  than titled personal property found inside of or on a specifically
   5-22  bequested or devised item.  The term includes clothing, pictures,
   5-23  furniture, coin collections, and other items of tangible personal
   5-24  property that do not require a formal transfer of title or that are
   5-25  located in another item of tangible personal property such as a
   5-26  cedar chest or furniture located on real property.
   5-27              (2)  "Titled personal property" includes all tangible
   5-28  personal property represented by a certificate of title, written
   5-29  label, marking, or designation that signifies ownership by a
   5-30  person.  The term includes a stock certificate, motor vehicle,
   5-31  motor home, motorboat, or other similar property that requires a
   5-32  formal transfer of title.
   5-33        SECTION 7.  Section 58a, Texas Probate Code, is amended to
   5-34  read as follows:
   5-35        Sec. 58a.  DEVISES OR BEQUESTS TO TRUSTEES.  (a)  A testator
   5-36  may validly devise or bequeath property in a will to the trustee of
   5-37  a trust established or to be established:
   5-38              (1)  during the testator's lifetime by the testator, by
   5-39  the testator and another person, or by another person, including a
   5-40  funded or unfunded life insurance trust, in which the settlor has
   5-41  reserved any or all rights of ownership of the insurance contracts;
   5-42  or
   5-43              (2)  at the testator's death by the testator's devise
   5-44  or bequest to the trustee, if the trust is identified in the
   5-45  testator's will and its terms are in a written instrument, other
   5-46  than a will, that is executed before, with, or after the execution
   5-47  of the testator's will or in another person's will if that other
   5-48  person has predeceased the testator, regardless of the existence,
   5-49  size, or character of the corpus of the trust.
   5-50        (b)  A devise or bequest is not invalid because the trust is
   5-51  amendable or revocable or because the trust was amended after the
   5-52  execution of the will or the testator's death.
   5-53        (c)  Unless the testator's will provides otherwise, property
   5-54  devised or bequeathed to a trust described by Subsection (a) of
   5-55  this section is not held under a testamentary trust of the
   5-56  testator.  The property becomes a part of the trust to which it is
   5-57  devised or bequeathed and must be administered and disposed of in
   5-58  accordance with the provisions of the instrument establishing the
   5-59  trust, including any amendments to the instrument made before or
   5-60  after the testator's death.
   5-61        (d)  Unless the testator's will provides otherwise, a
   5-62  revocation or termination of the trust before the testator's death
   5-63  causes the devise or bequest to lapse.  <By a will duly executed
   5-64  pursuant to the provisions of this Code, a testator may devise or
   5-65  bequeath property to the trustee of any trust (including an
   5-66  unfunded life insurance trust, even though the trustor has reserved
   5-67  any or all rights of ownership in the insurance contracts) the
   5-68  terms of which are evidenced by a written instrument in existence
   5-69  before or concurrently with the execution of such will and which is
   5-70  identified in such will, even though such trust is subject to
    6-1  amendment, modification, revocation or termination.  The property
    6-2  so devised or bequeathed shall be added to the corpus of such trust
    6-3  to be administered as a part thereof and shall thereafter be
    6-4  governed by the terms and provisions of the instrument establishing
    6-5  such trust, including written amendments or modifications thereto
    6-6  made before the death of the testator.  An entire revocation of the
    6-7  trust prior to the testator's death shall cause the devise or
    6-8  bequest to lapse.>
    6-9        SECTION 8.  Section 67, Texas Probate Code, is amended by
   6-10  amending Subsection (a) and adding Subsection (d) to read as
   6-11  follows:
   6-12        (a)  Whenever a pretermitted child is not mentioned in the
   6-13  testator's will, provided for in the testator's will, or otherwise
   6-14  provided for by the testator <of a testator, as herein defined, is
   6-15  neither provided for nor in any way mentioned in the testator's
   6-16  will>, the pretermitted child shall succeed to a portion of the
   6-17  testator's estate as provided by Subsection (a)(1) or (a)(2) of
   6-18  this section. <herein provided:>
   6-19              (1)  If the testator has one or more children living
   6-20  when he executes his last will, and:
   6-21                    (A)  No provision is made therein for any such
   6-22  child, a pretermitted child succeeds to the portion of the
   6-23  testator's separate and community estate to which the pretermitted
   6-24  child would have been entitled pursuant to Section 38(a) of this
   6-25  code had the testator died intestate without a surviving spouse
   6-26  owning only that portion of his estate not devised or bequeathed to
   6-27  the parent of the pretermitted child.
   6-28                    (B)  Provision is made therein for one or more of
   6-29  such children, a pretermitted child is entitled to share in the
   6-30  testator's estate as follows:
   6-31                          (i)  The portion of the testator's estate
   6-32  to which the pretermitted child is entitled is limited to the
   6-33  disposition made to children under the will.
   6-34                          (ii)  The pretermitted child shall receive
   6-35  such share of the testator's estate, as limited in Subparagraph
   6-36  (i), as he would have received had the testator included all
   6-37  pretermitted children with the children upon whom benefits were
   6-38  conferred under the will, and given an equal share of such benefits
   6-39  to each such child.
   6-40                          (iii)  To the extent that it is feasible,
   6-41  the interest of the pretermitted child in the testator's estate
   6-42  shall be of the same character, whether an equitable or legal life
   6-43  estate or in fee, as the interest that the testator conferred upon
   6-44  his children under the will.
   6-45              (2)  If the testator has no child living when he
   6-46  executes his last will, the pretermitted child succeeds to the
   6-47  portion of the testator's separate and community estate to which
   6-48  the pretermitted child would have been entitled pursuant to Section
   6-49  38(a) of this code had the testator died intestate without a
   6-50  surviving spouse owning only that portion of his estate not devised
   6-51  or bequeathed to the parent of the pretermitted child.
   6-52        (d)  For the purposes of this section, a child is provided
   6-53  for or a provision is made for a child if a disposition of property
   6-54  to or for the benefit of the pretermitted child, whether vested or
   6-55  contingent, is made:
   6-56              (1)  in the testator's will, including a devise or
   6-57  bequest to a trustee as authorized by Section 58(a) of this code;
   6-58  or
   6-59              (2)  outside the testator's will and is intended to
   6-60  take effect at the testator's death.
   6-61        SECTION 9.  Sections 68(a) and (e), Texas Probate Code, are
   6-62  amended to read as follows:
   6-63        (a)  If a devisee who is a descendant of the testator or a
   6-64  descendant of a testator's parent is deceased at the time of the
   6-65  execution of the will, fails to survive the testator, or is treated
   6-66  as if the devisee predeceased the testator by Section 47 of this
   6-67  code or otherwise, the descendants of the devisee who survived the
   6-68  testator by 120 hours take the devised property in place of the
   6-69  devisee.  The property shall be divided into as many shares as
   6-70  there are surviving descendants in the nearest <same> degree of
    7-1  kinship to the devisee and <or surviving descendants of> deceased
    7-2  persons in the same degree whose descendants survived <as> the
    7-3  testator.  Each<, with each> surviving descendant in the nearest
    7-4  degree receives <receiving> one share, and the share of each
    7-5  deceased person in the same degree is divided among his descendants
    7-6  by representation <in the same manner>.  For purposes of this
    7-7  section, a person who would have been a devisee under a class gift
    7-8  if the person had survived the testator is treated as a devisee
    7-9  unless the person died before the date the will was executed.
   7-10        (e)  This section applies unless the testator's last will and
   7-11  testament provides otherwise.  For example, a devise or bequest in
   7-12  the testator's will such as "to my surviving children" or "to such
   7-13  of my children as shall survive me" prevents the application of
   7-14  Subsection (a) of this section.
   7-15        SECTION 10.  Chapter IV, Texas Probate Code, is amended by
   7-16  adding Section 70A to read as follows:
   7-17        Sec. 70A.  INCREASE IN SECURITIES; ACCESSIONS.  (a)  Unless
   7-18  the will clearly provides otherwise, a devise of securities that
   7-19  are owned by the testator on the date of execution of the will
   7-20  includes the following additional securities subsequently acquired
   7-21  by the testator as a result of the testator's ownership of the
   7-22  devised securities:
   7-23              (1)  securities of the same organization acquired
   7-24  because of action initiated by the organization or any successor,
   7-25  related, or acquiring organization, including stock splits, stock
   7-26  dividends, and new issues of stock acquired in a reorganization,
   7-27  redemption, or exchange, other than securities acquired through the
   7-28  exercise of purchase options or through a plan of reinvestment; and
   7-29              (2)  securities of another organization acquired as a
   7-30  result of a merger, consolidation, reorganization, or other
   7-31  distribution by the organization or any successor, related, or
   7-32  acquiring organization, including stock splits, stock dividends,
   7-33  and new issues of stock acquired in a reorganization, redemption,
   7-34  or exchange, other than securities acquired through the exercise of
   7-35  purchase options or through a plan of reinvestment.
   7-36        (b)  Unless the will clearly provides otherwise, a devise of
   7-37  securities does not include a cash distribution relating to the
   7-38  securities and accruing before death, whether or not the
   7-39  distribution is paid before death.
   7-40        (c)  In this section:
   7-41              (1)  "Securities" has the meaning assigned by Section
   7-42  4, The Securities Act (Article 581-4, Vernon's Texas Civil
   7-43  Statutes), and its subsequent amendments.
   7-44              (2)  "Stock" means securities.
   7-45        SECTION 11.  Section 89, Texas Probate Code, is amended to
   7-46  read as follows:
   7-47        Sec. 89.  Action of Court on Probated Will.  Upon the
   7-48  completion of hearing of an application for the probate of a will,
   7-49  if the Court be satisfied that such will should be admitted to
   7-50  probate, an order to that effect shall be entered.  Certified
   7-51  copies of such will and the order <probate of the same>, or of the
   7-52  record thereof, and the record of testimony, may be recorded in
   7-53  other counties, and may be used in evidence, as the original might
   7-54  be, on the trial of the same matter in any other court, when taken
   7-55  there by appeal or otherwise.
   7-56        <Probate of Wills as Muniments of Title.  In each instance
   7-57  where the Court is satisfied that a will should be admitted to
   7-58  probate, and where the Court is further satisfied that there are no
   7-59  unpaid debts owing by the estate of the testator, excluding debts
   7-60  secured by liens on real estate, or for other reason finds that
   7-61  there is no necessity for administration upon such estate, the
   7-62  Court may admit such will to probate as a Muniment of Title.>
   7-63        <The order admitting a will to probate as a Muniment of Title
   7-64  shall constitute sufficient legal authority to all persons owing
   7-65  any money, having custody of any property, or acting as registrar
   7-66  or transfer agent of any evidence of interest, indebtedness,
   7-67  property, or right belonging to the estate, and to persons
   7-68  purchasing from or otherwise dealing with the estate, for payment
   7-69  or transfer to the persons described in such will as entitled to
   7-70  receive the particular asset without administration.  The person or
    8-1  persons entitled to property under the provisions of such wills
    8-2  shall be entitled to deal and treat with the properties to which
    8-3  they are so entitled in the same manner as if the record of title
    8-4  thereof were vested in their names.>
    8-5        <Unless waived by the Court, before the 181st day, or such
    8-6  later day as may be extended by the Court, after the date a will is
    8-7  admitted to probate as a Muniment of Title, the applicant for
    8-8  probate of the will shall file with the clerk of the Court a sworn
    8-9  affidavit stating specifically the terms of the will that have been
   8-10  fulfilled and the terms of the will that have been unfulfilled.
   8-11  Failure of the applicant for probate of the will to file such
   8-12  affidavit shall not otherwise affect title to property passing
   8-13  under the terms of the will.>
   8-14        SECTION 12.  Part 1, Chapter V, Texas Probate Code, is
   8-15  amended by adding Section 89A to read as follows:
   8-16        Sec. 89A.  PROBATE OF WILLS AS MUNIMENTS OF TITLE.  (a)  In
   8-17  each instance where the court is satisfied that a will should be
   8-18  admitted to probate, and where the court is further satisfied that
   8-19  there are no unpaid debts owing by the estate of the testator,
   8-20  excluding debts secured by liens on real estate, or for other
   8-21  reason finds that there is no necessity for administration upon
   8-22  such estate, the court may admit such will to probate as a muniment
   8-23  of title.
   8-24        (b)  If a person who is entitled to property under the
   8-25  provisions of the will cannot be ascertained solely by reference to
   8-26  the will or if a question of construction of the will exists, on
   8-27  proper application and notice as provided by Chapter 37, Civil
   8-28  Practice and Remedies Code, the court may hear evidence and include
   8-29  in the order probating the will as a muniment of title a
   8-30  declaratory judgment construing the will or determining those
   8-31  persons who are entitled to receive property under the will and the
   8-32  persons' shares or interests in the estate.  The judgment is
   8-33  conclusive in any suit between any person omitted from the judgment
   8-34  and a bona fide purchaser for value who has purchased real or
   8-35  personal property after entry of the judgment without actual notice
   8-36  of the claim of the omitted person to an interest in the estate.
   8-37  Any person who has delivered property of the decedent to a person
   8-38  declared to be entitled to the property under the judgment or has
   8-39  engaged in any other transaction with the person in good faith
   8-40  after entry of the judgment is not liable to any person for actions
   8-41  taken in reliance on the judgment.
   8-42        (c)  The order admitting a will to probate as a muniment of
   8-43  title shall constitute sufficient legal authority to all persons
   8-44  owing any money to the estate of the decedent, having custody of
   8-45  any property, or acting as registrar or transfer agent of any
   8-46  evidence of interest, indebtedness, property, or right belonging to
   8-47  the estate, and to persons purchasing from or otherwise dealing
   8-48  with the estate, for payment or transfer, without liability, to the
   8-49  persons described in such will as entitled to receive the
   8-50  particular asset without administration.  The person or persons
   8-51  entitled to property under the provisions of such wills shall be
   8-52  entitled to deal with and treat the properties to which they are so
   8-53  entitled in the same manner as if the record of title thereof were
   8-54  vested in their names.
   8-55        (d)  Unless waived by the court, before the 181st day, or
   8-56  such later day as may be extended by the court, after the date a
   8-57  will is admitted to probate as a muniment of title, the applicant
   8-58  for probate of the will shall file with the clerk of the court a
   8-59  sworn affidavit stating specifically the terms of the will that
   8-60  have been fulfilled and the terms of the will that have been
   8-61  unfulfilled.  Failure of the applicant for probate of the will to
   8-62  file such affidavit shall not otherwise affect title to property
   8-63  passing under the terms of the will.
   8-64        SECTION 13.  Section 110, Texas Probate Code, is amended to
   8-65  read as follows:
   8-66        Sec. 110.  Persons Disqualified to Serve as Guardians.
   8-67  (a)  The following persons shall not be appointed guardians:
   8-68              (1) <(a)>  Minors.
   8-69              (2) <(b)>  Persons whose conduct is notoriously bad.
   8-70              (3) <(c)>  Incompetents.
    9-1              (4) <(d)>  Those who are themselves parties, or whose
    9-2  father or mother is a party to a lawsuit on the result of which the
    9-3  welfare of the person for whom, or for whose estate, a guardian is
    9-4  to be appointed, may depend, unless the court:
    9-5                    (A)  determines, in its discretion, that the
    9-6  lawsuit claim of the party applying for guardianship is not in
    9-7  conflict with the claim of the party who is the subject of the
    9-8  guardianship; or
    9-9                    (B)  appoints a guardian ad litem, if necessary,
   9-10  to separately and independently represent the interest of the party
   9-11  who is the subject of the guardianship throughout the litigation
   9-12  process.
   9-13              (5) <(e)>  Those who are indebted to the person for
   9-14  whom or for whose estate a guardian is to be appointed, unless they
   9-15  pay the debt prior to the appointment, or who are asserting any
   9-16  claim to any property, real or personal, adverse to the person for
   9-17  whom, or for whose estate, the appointment is sought.
   9-18              (6) <(g)>  Those who by reason of inexperience or lack
   9-19  of education, or for other good reason, are shown to be incapable
   9-20  of properly and prudently managing and controlling the ward or his
   9-21  estate.
   9-22        (b)  If an ad litem is appointed under Subsection (a) of this
   9-23  section, the fees and expenses of the guardian ad litem shall be
   9-24  taxed as costs of the litigation proceeding that made the ad
   9-25  litem's appointment necessary.  In the interest of judicial
   9-26  economy, the guardian ad litem may be the same person who has been
   9-27  appointed attorney ad litem under Section 113A or 131(c) of this
   9-28  code or may be a person who is serving as an ad litem for the
   9-29  benefit of the ward in any other proceeding.
   9-30        (c)  A spouse, parent, or child who has been disqualified
   9-31  from serving as guardian because of a litigation conflict under
   9-32  Subsection (a)(4) of this section and who is otherwise qualified as
   9-33  a guardian may be appointed as successor guardian on the removal of
   9-34  any conflict causing the initial disqualification.
   9-35        SECTION 14.  Section 111, Texas Probate Code, as amended by
   9-36  Section 2, Chapter 330, and Section 1, Chapter 1164, Acts of the
   9-37  71st Legislature, Regular Session, 1989, is amended to read as
   9-38  follows:
   9-39        Sec. 111.  Application for Appointment of Permanent Guardian.
   9-40  <(a)>  A proceeding for the appointment of a guardian shall be
   9-41  begun by written application filed in the court of the county
   9-42  having venue thereof.  Any person may make such application.  Such
   9-43  application shall be sworn and must state:
   9-44              (1)  The name, sex, date of birth, and residence, of
   9-45  the person for whom the appointment of a guardian is sought;
   9-46              (2)  If a minor, the names of the parents and next of
   9-47  kin of such persons, and whether either or both of the parents are
   9-48  deceased;
   9-49              (3)  If a minor, a statement of whether the minor has
   9-50  been the subject of a legal or conservatorship proceeding within
   9-51  the preceding two-year period, and if so, the court involved, the
   9-52  nature of the proceeding, and the final disposition, if any, of the
   9-53  proceeding;
   9-54              (4)  If a person 60 years of age or older, the name and
   9-55  address, to the best of the applicant's knowledge, of the person's
   9-56  spouse, brother, sister, and children;
   9-57              (5)  A general description of the property comprising
   9-58  such person's estate, if guardianship of the estate is sought;
   9-59              (6)  The facts which require that a guardian be
   9-60  appointed;
   9-61              (7)  The name, relationship, and address of the person
   9-62  whom the applicant desires to have appointed as guardian;
   9-63              (8)  Whether guardianship of the person and estate, or
   9-64  of the person or of the estate, is sought;
   9-65              (9)  The social security number of the applicant and of
   9-66  the person for whom the appointment of a guardian is sought; and
   9-67              (10)  Such other facts as show that the court has venue
   9-68  over the proceeding.
   9-69        <(b)  The portion of the application stating the information
   9-70  required by Subsection (a)(3) of this section shall be sworn to by
   10-1  the applicant.>
   10-2        SECTION 15.  Section 145(q), Texas Probate Code, is amended
   10-3  to read as follows:
   10-4        (q)  Absent proof of fraud or collusion on the part of a
   10-5  judge, no judge may be held civilly liable for the commission of
   10-6  misdeeds or the omission of any required act of any person, firm,
   10-7  or corporation designated as an independent executor or independent
   10-8  administrator under Subsections (c), (d), and (e) of the section.
   10-9  Section 36 of this code does not apply to the appointment of an
  10-10  independent executor or administrator under Subsection (c), (d), or
  10-11  (e) of this section.
  10-12        SECTION 16.  Section 154A, Texas Probate Code, is amended by
  10-13  adding Subsection (i) to read as follows:
  10-14        (i)  Absent proof of fraud or collusion on the part of a
  10-15  judge, the judge may not be held civilly liable for the commission
  10-16  of misdeeds or the omission of any required act of any person,
  10-17  firm, or corporation designated as a successor independent executor
  10-18  under this section.  Section 36 of this code does not apply to an
  10-19  appointment of a successor independent executor under this section.
  10-20        SECTION 17.  Section 160, Texas Probate Code, is amended to
  10-21  read as follows:
  10-22        Sec. 160.  Powers of Surviving Spouse When No Administration
  10-23  is Pending.  (a)  When no one has qualified as executor or
  10-24  administrator of the estate of a deceased spouse, the surviving
  10-25  spouse, whether the husband or wife, as the surviving partner of
  10-26  the marital partnership, without qualifying as community
  10-27  administrator as hereinafter provided, has power to sue and be sued
  10-28  for the recovery of community property; to sell, mortgage, lease,
  10-29  and otherwise dispose of community property for the purpose of
  10-30  paying community debts; to collect claims due to the community
  10-31  estate; and has such other powers as shall be necessary to preserve
  10-32  the community property, discharge community obligations, and wind
  10-33  up community affairs.
  10-34        (b)  If an affidavit stating that the affiant is the
  10-35  surviving spouse and that no one has qualified as executor or
  10-36  administrator of the estate of the deceased spouse is furnished to
  10-37  a person owing money to the community estate for current wages at
  10-38  the time of the death of the deceased spouse, the person making
  10-39  payment or delivering to the affiant the deceased spouse's final
  10-40  paycheck for wages, including unpaid sick pay or vacation pay, if
  10-41  any, is released from liability to the same extent as if the
  10-42  payment or delivery was made to a personal representative of the
  10-43  deceased spouse.  The person is not required to inquire into the
  10-44  truth of the affidavit.  The affiant to whom the payment or
  10-45  delivery is made is answerable to any person having a prior right
  10-46  and is accountable to any personal representative who is appointed.
  10-47  The affiant is liable for any damage or loss to any person that
  10-48  arises from a payment or delivery made in reliance on the
  10-49  affidavit.
  10-50        (c)  This section does not affect the disposition of the
  10-51  property of the deceased spouse.
  10-52        SECTION 18.  Section 271, Texas Probate Code, is amended to
  10-53  read as follows:
  10-54        Sec. 271.  Exempt Property to Be Set Apart.  (a)  Unless an
  10-55  affidavit is filed under Subsection (b) of this section,
  10-56  immediately <Immediately> after the inventory, appraisement, and
  10-57  list of claims have been approved, the court shall, by order, set
  10-58  apart for the use and benefit of the surviving spouse and minor
  10-59  children and unmarried children remaining with the family of the
  10-60  deceased, all such property of the estate as is exempt from
  10-61  execution or forced sale by the constitution and laws of the state.
  10-62        (b)  Before the approval of the inventory, appraisement, and
  10-63  list of claims, a surviving spouse, any person who is authorized to
  10-64  act on behalf of minor children of the deceased, or any unmarried
  10-65  children remaining with the family of the deceased may apply to the
  10-66  court to have exempt property set aside by filing an application
  10-67  and a verified affidavit listing all of the property that the
  10-68  applicant claims is exempt.  The applicant bears the burden of
  10-69  proof by a preponderance of the evidence at any hearing on the
  10-70  application.   The court shall set aside property of the decedent's
   11-1  estate that the court finds is exempt.
   11-2        SECTION 19.  Section 273, Texas Probate Code, is amended to
   11-3  read as follows:
   11-4        Sec. 273.  Allowance in Lieu of Exempt Property.  In case
   11-5  there should not be among the effects of the deceased all or any of
   11-6  the specific articles exempted from execution or forced sale by the
   11-7  Constitution and laws of this state, the court shall make a
   11-8  reasonable allowance in lieu thereof, to be paid to such surviving
   11-9  spouse and children, or such of them as there are, as hereinafter
  11-10  provided.  The allowance in lieu of a homestead shall in no case
  11-11  exceed $15,000 <Ten Thousand Dollars> and the allowance for other
  11-12  exempted property shall in no case exceed $5,000 <One Thousand
  11-13  Dollars>, exclusive of the allowance for the support of the
  11-14  surviving spouse and minor children which is hereinafter provided
  11-15  for.
  11-16        SECTION 20.  Section 286, Texas Probate Code, is amended to
  11-17  read as follows:
  11-18        Sec. 286.  Family Allowance to Surviving Spouses and Minors.
  11-19  (a)  Unless an affidavit is filed under Subsection (b) of this
  11-20  section, immediately <Immediately> after the inventory,
  11-21  appraisement, and list of claims have been approved, the court
  11-22  shall fix a family allowance for the support of the surviving
  11-23  spouse and minor children of the deceased.
  11-24        (b)  Before the approval of the inventory, appraisement, and
  11-25  list of claims, a surviving spouse or any person who is authorized
  11-26  to act on behalf of minor children of the deceased may apply to the
  11-27  court to have the court fix the family allowance by filing an
  11-28  application and a verified affidavit describing the amount
  11-29  necessary for the maintenance of the surviving spouse and minor
  11-30  children for one year after the date of the death of the decedent
  11-31  and describing the spouse's separate property and any property that
  11-32  minor children have in their own right.  The applicant bears the
  11-33  burden of proof by a preponderance of the evidence at any hearing
  11-34  on the application.  The court shall fix a family allowance for the
  11-35  support of the surviving spouse and minor children of the deceased.
  11-36        SECTION 21.  Section 333, Texas Probate Code, is amended to
  11-37  read as follows:
  11-38        Sec. 333.  Certain Personal Property to Be Sold.  (a)  The
  11-39  representative of an estate, after approval of inventory and
  11-40  appraisement, shall promptly apply for an order of the court to
  11-41  sell at public auction or privately, for cash or on credit not
  11-42  exceeding six months, all of the estate that is liable to perish,
  11-43  waste, or deteriorate in value, or that will be an expense or
  11-44  disadvantage to the estate if kept.  Property <Bonds, securities,
  11-45  or other personal property deemed by the court not to be so liable,
  11-46  property> exempt from forced sale, specific legacies, and personal
  11-47  property necessary to carry on a farm, ranch, factory, or any other
  11-48  business which it is thought best to operate, shall not be included
  11-49  in such sales.
  11-50        (b)  In determining whether to order the sale of an asset
  11-51  under Subsection (a) of this section, the court shall consider:
  11-52              (1)  the representative's duty to take care of and
  11-53  manage the estate as a person of ordinary prudence, discretion, and
  11-54  intelligence would exercise in the management of the person's own
  11-55  affairs; and
  11-56              (2)  whether the asset constitutes an asset that a
  11-57  trustee is authorized to invest under Section 113.056 or Subchapter
  11-58  F, Chapter 113, Property Code.
  11-59        SECTION 22.  Section 389, Texas Probate Code, is amended to
  11-60  read as follows:
  11-61        Sec. 389.  Investments without Court Order.  (a)  The
  11-62  guardian of the estate may retain, without regard to
  11-63  diversification of investments and without liability for any
  11-64  depreciation or loss resulting from the retention, any property
  11-65  received into a guardianship estate at its inception or added to
  11-66  the estate by gift, devise, or inheritance or by mutation or
  11-67  increase.  A guardian of the estate is not relieved from the duty
  11-68  to take care of and manage the estate as a person of ordinary
  11-69  prudence, discretion, and intelligence would exercise in the
  11-70  management of the person's own affairs.
   12-1        (b)  If, at any time, the guardian of the estate shall have
   12-2  on hand money belonging to the ward beyond that which may be
   12-3  necessary for the education and maintenance of such ward or wards,
   12-4  he shall invest such money as follows:
   12-5              (1) <(a)>  In bonds or other obligations of the United
   12-6  States; <or>
   12-7              (2) <(b)>  In tax-supported bonds of the State of
   12-8  Texas; <or>
   12-9              (3) <(c)>  In tax-supported bonds of any county,
  12-10  district, political subdivision, or incorporated city or town in
  12-11  the State of Texas; provided, that the bonds of counties,
  12-12  districts, subdivisions, cities, and towns may be purchased only
  12-13  subject to the following restrictions:  the net funded debt of said
  12-14  issuing unit shall not exceed ten per cent of the assessed value of
  12-15  taxable property therein, "net funded debt" meaning the total
  12-16  funded debt less sinking funds on hand; and further, in the case of
  12-17  cities or towns, less that part of the debt incurred for
  12-18  acquisition or improvement of revenue-producing utilities, the
  12-19  revenues of which are not pledged to support other obligations;
  12-20  provided, however, that these restrictions shall not apply to bonds
  12-21  issued for road purposes in this state under authority of Section
  12-22  52 of Article III of the Constitution of Texas, which bonds are
  12-23  supported by a tax unlimited as to rate or amount; <or>
  12-24              (4) <(d)>  In shares or share accounts of any building
  12-25  and loan association organized under the laws of this state,
  12-26  provided the payment of such shares or share accounts is insured by
  12-27  the Federal Savings & Loan Insurance Corporation; <or>
  12-28              (5) <(e)>  In the shares or share accounts of any
  12-29  federal savings and loan association domiciled in this state, where
  12-30  the payment of such shares or share accounts is insured by the
  12-31  Federal Savings & Loan Insurance Corporation; <or>
  12-32              (6) <(f)>  In collateral bonds of companies
  12-33  incorporated under the laws of the State of Texas, having a paid-in
  12-34  capital of One Million Dollars or more, when such bonds are a
  12-35  direct obligation of the company issuing them, and are specifically
  12-36  secured by first mortgage real estate notes or other securities
  12-37  pledged with a trustee; or<.>
  12-38              (7) <(g)>  In interest-bearing time deposits which may
  12-39  be withdrawn on or before one year after demand in any bank doing
  12-40  business in Texas where the payment of such time deposits is
  12-41  insured by the Federal Deposit Insurance Corporation.
  12-42        SECTION 23.  The heading of Section 389A, Texas Probate Code,
  12-43  is amended to read as follows:
  12-44        Sec. 389A.  <Other> Investments With Court Order
  12-45        SECTION 24.  Part 8, Chapter VIII, Texas Probate Code, is
  12-46  amended by adding Section 378B to read as follows:
  12-47        Sec. 378B.  ALLOCATION OF INCOME AND EXPENSES DURING
  12-48  ADMINISTRATION OF DECEDENT'S ESTATE.  (a)  Except as provided by
  12-49  Subsection (b) of this section and unless the will provides
  12-50  otherwise, all expenses incurred in connection with the settlement
  12-51  of a decedent's estate, including debts, funeral expenses, estate
  12-52  taxes, interest and penalties relating to estate taxes, and family
  12-53  allowances, shall be charged against the principal of the estate.
  12-54  Fees and expenses of an attorney, accountant, or other professional
  12-55  advisor, commissions and expenses of a personal representative,
  12-56  court costs, and all other similar fees or expenses relating to the
  12-57  administration of the estate shall be allocated between the income
  12-58  and principal of the estate as the executor determines in its
  12-59  discretion to be just and equitable.
  12-60        (b)  Unless the will provides otherwise, income from the
  12-61  assets of a decedent's estate that accrues after the death of the
  12-62  testator and before distribution, including income from property
  12-63  used to discharge liabilities, shall be determined according to the
  12-64  rules applicable to a trustee under the Texas Trust Code (Subtitle
  12-65  B, Title 9, Property Code) and distributed as provided by
  12-66  Subsections (c), (d), and (e) of this section.
  12-67        (c)  The income from the property bequeathed or devised to a
  12-68  specific devisee shall be distributed to the devisee after
  12-69  reduction for property taxes, ordinary repairs, insurance premiums,
  12-70  interest accrued after the death of the testator, other expenses of
   13-1  management and operation of the property, and other taxes,
   13-2  including the taxes imposed on the income that accrues during the
   13-3  period of administration and that is payable to the devisee.
   13-4        (d)  Except as provided by Subsection (f) of this section,
   13-5  the balance of the net income shall be distributed to all other
   13-6  devisees after reduction for the balance of property taxes,
   13-7  ordinary repairs, insurance premiums, interest accrued, including
   13-8  interest accruing as provided by Subsection (f) of this section
   13-9  after the death of the testator, other expenses of management and
  13-10  operation of all property from which the estate is entitled to
  13-11  income, and taxes imposed on income that accrues during the period
  13-12  of administration and that is payable or allocable to the devisees,
  13-13  in proportion to the devisees' respective interests in the
  13-14  undistributed assets of the estate.
  13-15        (e)  If a charitable organization is entitled to receive
  13-16  income under Subsection (b) of this section, any amount allowed as
  13-17  a tax deduction to the estate for income payable to the charitable
  13-18  organization shall be paid, without reduction for taxes, to the
  13-19  charitable organization.
  13-20        (f)  A devisee of a pecuniary bequest, whether or not in
  13-21  trust, shall be paid interest on the bequest at the legal rate of
  13-22  interest as provided by Article 1.03, Revised Statutes (Article
  13-23  5069-1.03, Vernon's Texas Civil Statutes), and its subsequent
  13-24  amendments, beginning one year after the date the court grants
  13-25  letters testamentary or letters of administration.
  13-26        (g)  Income received by a trustee under this section shall be
  13-27  treated as income of the trust as provided by Section 113.103,
  13-28  Property Code.
  13-29        (h)  In this section, "undistributed assets" includes funds
  13-30  used to pay debts, administration expenses, and federal and state
  13-31  estate, inheritance, succession, and generation-skipping transfer
  13-32  taxes until the date of payment of the debts, expenses, and taxes.
  13-33  Except as required by Sections 2055 and 2056 of the Internal
  13-34  Revenue Code of 1986 (26 U.S.C. Secs. 2055 and 2056), and its
  13-35  subsequent amendments, the frequency and method of determining the
  13-36  beneficiaries' respective interests in the undistributed assets of
  13-37  the estate shall be in the executor's sole and absolute discretion.
  13-38  The executor may consider all relevant factors, including
  13-39  administrative convenience and expense and the interests of the
  13-40  various beneficiaries of the estate in order to reach a fair and
  13-41  equitable result among beneficiaries.
  13-42        SECTION 25.  Sections 436(3) and (5), Texas Probate Code, are
  13-43  amended to read as follows:
  13-44              (3)  "Financial institution" means an organization
  13-45  authorized to do business under state or federal laws relating to
  13-46  financial institutions, including, without limitation, banks and
  13-47  trust companies, savings banks, building and loan associations,
  13-48  savings and loan companies or associations, <and> credit unions,
  13-49  and brokerage firms that deal in the sales and purchases of stocks,
  13-50  bonds, and other types of securities.
  13-51              (5)  "Multiple-party account" means a joint account, a
  13-52  convenience account, a P.O.D. account, or a trust account.  It does
  13-53  not include accounts established for deposit of funds of a
  13-54  partnership, joint venture, or other association for business
  13-55  purposes, or accounts controlled by one or more persons as the duly
  13-56  authorized agent or trustee for a corporation, unincorporated
  13-57  association, charitable or civic organization, or a regular
  13-58  fiduciary or trust account where the relationship is established
  13-59  other than by deposit agreement.
  13-60        SECTION 26.  Sections 439(b) and (c), Texas Probate Code, are
  13-61  amended to read as follows:
  13-62        (b)  If the account is a P.O.D. account and there is a
  13-63  written agreement signed by the original payee or payees, on the
  13-64  death of the original payee or on the death of the survivor of two
  13-65  or more original payees, any sums remaining on deposit belong to
  13-66  the P.O.D. payee or payees if surviving, or to the survivor of them
  13-67  if one or more P.O.D. payees die before the original payee.  If two
  13-68  or more P.O.D. payees survive, there is no right of survivorship in
  13-69  event of death of a P.O.D. payee thereafter unless the terms of the
  13-70  account or deposit agreement expressly provide for survivorship
   14-1  between them.
   14-2        (c)  If the account is a trust account and there is a written
   14-3  agreement signed by the trustee or trustees, on death of the
   14-4  trustee or the survivor of two or more trustees, any sums remaining
   14-5  on deposit belong to the person or persons named as beneficiaries,
   14-6  if surviving, or to the survivor of them if one or more
   14-7  beneficiaries die before the trustee dies<, unless there is clear
   14-8  and convincing evidence of a contrary intent>.  If two or more
   14-9  beneficiaries survive, there is no right of survivorship in event
  14-10  of death of any beneficiary thereafter unless the terms of the
  14-11  account or deposit agreement expressly provide for survivorship
  14-12  between them.
  14-13        SECTION 27.  Part 1, Chapter XI, Texas Probate Code, is
  14-14  amended by adding Section 438A to read as follows:
  14-15        Sec. 438A.  CONVENIENCE ACCOUNT.  (a)  If an account is
  14-16  established at a financial institution by a party in the names of
  14-17  the party and a co-signer and the terms of the account provide that
  14-18  the sums on deposit are paid or delivered to the party or to the
  14-19  co-signer "for the convenience" of the party, the account is a
  14-20  convenience account.
  14-21        (b)  The making of a deposit in a convenience account does
  14-22  not affect the title to the deposit.
  14-23        (c)  The party to a convenience account is not considered to
  14-24  have made a gift of one-half of the deposit or of any additions or
  14-25  accruals to the deposit to the co-signer.
  14-26        (d)  On the death of the party, the co-signer shall have no
  14-27  right of survivorship in the account and ownership of the account
  14-28  remains in the party.
  14-29        (e)  If an addition is made to the account by anyone other
  14-30  than the party, the addition and accruals to the addition are
  14-31  considered to have been made by the party.
  14-32        (f)  All deposits to a convenience account and additions and
  14-33  accruals to the deposits may be paid to the party or to the
  14-34  co-signer.  The financial institution is completely released from
  14-35  liability for a payment made from the account before the financial
  14-36  institution receives notice in writing signed by the party not to
  14-37  make the payment in accordance with the terms of the account.
  14-38  After receipt of the notice from the party, the financial
  14-39  institution may require the party to approve any further payments
  14-40  from the account.
  14-41        (g)  If the financial institution makes a payment of the sums
  14-42  on deposit in a convenience account to the co-signer after the
  14-43  death of the party and before the financial institution has
  14-44  received written notice of the party's death, the financial
  14-45  institution is completely released from liability for the payment.
  14-46  If a financial institution makes payment to the personal
  14-47  representative of the deceased party's estate after the death of
  14-48  the party and before service on the financial institution of a
  14-49  court order prohibiting payment, the financial institution is
  14-50  released to the extent of the payment from liability to any person
  14-51  claiming a right to the funds.  The receipt by the representative
  14-52  to whom payment is made is a complete release and discharge of the
  14-53  financial institution.
  14-54        SECTION 28.  Section 111.004, Property Code, is amended by
  14-55  adding Subdivision (24) to read as follows:
  14-56              (24)  "Environmental law" means any federal, state, or
  14-57  local law, rule, regulation, or ordinance relating to protection of
  14-58  the environment.
  14-59        SECTION 29.  Subchapter A, Chapter 113, Property Code, is
  14-60  amended by adding Section 113.025 to read as follows:
  14-61        Sec. 113.025.  POWERS OF TRUSTEE REGARDING ENVIRONMENTAL
  14-62  LAWS.  (a)  A trustee or a potential trustee may inspect,
  14-63  investigate, cause to be inspected, or cause to be investigated
  14-64  trust property, property that the trustee or potential trustee has
  14-65  been asked to hold, or property owned or operated by an entity in
  14-66  which the trustee or potential trustee holds or has been asked to
  14-67  hold any interest or for the purpose of determining the potential
  14-68  application of environmental law with respect to the property.
  14-69  This subsection does not grant any person the right of access to
  14-70  any property.  The taking of any action under this subsection with
   15-1  respect to a trust or an addition to a trust is not evidence that a
   15-2  person has accepted the trust or the addition to the trust.
   15-3        (b)  A trustee may take on behalf of the trust any action
   15-4  before or after the initiation of an enforcement action or other
   15-5  legal proceeding that the trustee reasonably believes will help to
   15-6  prevent, abate, or otherwise remedy any actual or potential
   15-7  violation of any environmental law affecting property held directly
   15-8  or indirectly by the trustee.
   15-9        SECTION 30.  Section 114.001, Property Code, is amended by
  15-10  adding Subsection (d) to read as follows:
  15-11        (d)  The trustee is not liable to the beneficiary for a loss
  15-12  or depreciation in value of the trust property or for acting or
  15-13  failing to act under Section 113.025 or under any other provision
  15-14  of this subtitle if the action or failure to act relates to
  15-15  compliance with an environmental law and if there is no gross
  15-16  negligence or bad faith on the part of the trustee.  The provision
  15-17  of any instrument governing trustee liability does not increase the
  15-18  liability of the trustee as provided by this section unless the
  15-19  settlor expressly makes reference to this subsection.
  15-20        SECTION 31.  Section 114.063, Property Code, is amended to
  15-21  read as follows:
  15-22        Sec. 114.063.  General Right to Reimbursement.  (a)  A
  15-23  trustee may discharge or reimburse himself from trust principal or
  15-24  income or partly from both for:
  15-25              (1)  advances made for the convenience, benefit, or
  15-26  protection of the trust or its property; <and>
  15-27              (2)  expenses incurred while administering or
  15-28  protecting the trust or because of the trustee's holding or owning
  15-29  any of the trust property; and
  15-30              (3)  expenses incurred for any action taken under
  15-31  Section 113.025.
  15-32        (b)  The trustee has a lien against trust property to secure
  15-33  reimbursement under Subsection (a) <of this section>.
  15-34        (c)  A potential trustee is entitled to reimbursement from
  15-35  trust principal or income or partly from both for reasonable
  15-36  expenses incurred for any action taken under Section 113.025(a) if:
  15-37              (1)  a court orders reimbursement or the potential
  15-38  trustee has entered into a written agreement providing for
  15-39  reimbursement with the personal representative of the estate, the
  15-40  trustee of the trust, the settlor, the settlor's attorney-in-fact,
  15-41  the settlor's personal representative, or the person or entity
  15-42  designated in the trust instrument or will to appoint a trustee;
  15-43  and
  15-44              (2)  the potential trustee has been appointed trustee
  15-45  under the terms of the trust instrument or will or has received a
  15-46  written request to accept the trust from the settlor, the settlor's
  15-47  attorney-in-fact, the settlor's personal representative, or the
  15-48  person or entity designated in the trust instrument or will to
  15-49  appoint a trustee.
  15-50        SECTION 32.  Section 113.109, Property Code, is amended to
  15-51  read as follows:
  15-52        Sec. 113.109.  PROPERTY OTHER THAN NATURAL RESOURCES SUBJECT
  15-53  TO DEPLETION.  (a)  If the principal of a trust includes a deferred
  15-54  payment right, the proceeds of the right, on receipt, are income up
  15-55  to five percent of the inventory value of the right, determined
  15-56  separately for each year following the year in which the right
  15-57  first becomes subject to the trust.  The remainder of the proceeds
  15-58  is principal.  The allocation to income is computed in the same
  15-59  manner in which interest under a loan of the initial inventory
  15-60  amount would be computed, at five percent interest compounded
  15-61  annually, if periodic payments are made by the borrower to the
  15-62  lender.
  15-63        (b)  For the first year, inventory value is determined as
  15-64  provided by this subtitle.  For each year after the first year, the
  15-65  inventory value is:
  15-66              (1)  reduced to the extent that proceeds of the right
  15-67  were allocated to principal during the preceding year; and
  15-68              (2)  increased to the extent that the proceeds received
  15-69  during the preceding year were less than five percent of the
  15-70  inventory value for that year.
   16-1        (c)  While the deferred payment right is under administration
   16-2  in a decedent's estate, income and principal are determined by
   16-3  using the fiscal year of the estate and ending on the date the
   16-4  trust is funded with the right.  After the administration of the
   16-5  estate, the fiscal year of the trust is used.  The five percent
   16-6  allocation to income is prorated for a year that is less than 12
   16-7  months.
   16-8        (d)  The proceeds of a deferred payment right include all
   16-9  receipts relating to the right, whether or not the receipts are
  16-10  periodic.  After the proceeds are received by the trustee and
  16-11  allocated, this section does not apply to the proceeds, except to
  16-12  the extent the proceeds include a deferred payment right.
  16-13        (e)  In this section:
  16-14              (1)  "Deferred payment right" means a depletable asset,
  16-15  other than natural resources or timber, consisting of the right to
  16-16  property under a contract, account, or other arrangement that is
  16-17  payable not earlier than 12 months after the date the right becomes
  16-18  subject to the trust.  A deferred payment right includes the right
  16-19  to receive a periodic, annuity, installment, or single sum future
  16-20  payment:
  16-21                    (A)  under a leasehold, patent, copyright, or
  16-22  royalty;
  16-23                    (B)  of income in respect of a decedent under
  16-24  Section 691 of the Internal Revenue Code of 1986 (26 U.S.C. Sec.
  16-25  691);
  16-26                    (C)  of death benefits;
  16-27                    (D)  of benefits under a nonqualified plan of
  16-28  deferred compensation or similar arrangement; or
  16-29                    (E)  under an employee's trust, a retirement
  16-30  account, a plan described by Section 403 of the Internal Revenue
  16-31  Code of 1986 (26 U.S.C. Sec. 403), or an employee benefit plan.
  16-32              (2)  "Employee benefit plan" means an employee benefit
  16-33  plan as defined by Section 1002, Employee Retirement Income
  16-34  Security Act of 1974 (ERISA) (29 U.S.C. Sec. 1002), a plan that
  16-35  does not meet the requirements of an employee benefit plan under
  16-36  ERISA because the plan does cover common law employees, or a plan
  16-37  that is similar to an employee benefit plan under ERISA whether or
  16-38  not the plan is covered under Subchapter I of ERISA.
  16-39              (3)  "Year" means the fiscal year for federal income
  16-40  tax reporting purposes.  <If part of the principal consists of
  16-41  property other than natural resources or timber that is depletable,
  16-42  such as a leasehold, patent, copyright, royalty, or right to
  16-43  receive payments on a contract for deferred compensation, and the
  16-44  trustee does not have a duty to change the form of the investment,
  16-45  the return from the property is income, but if the trustee has a
  16-46  duty under existing law or the instrument creating the trust to
  16-47  change the form of the investment, as soon as it may be done
  16-48  without sacrifice of value, the return from the property is income
  16-49  up to five percent a year of the inventory value of the property,
  16-50  and the remainder is principal.>
  16-51        SECTION 33.  (a)  The changes in law made by Sections 1, 2,
  16-52  and 3 of this Act apply only to a disclaimer made on or after the
  16-53  effective date of this Act.  A disclaimer made before the effective
  16-54  date of this Act is covered by the law in effect when the
  16-55  disclaimer was made, and the former law is continued in effect for
  16-56  that purpose.
  16-57        (b)  The changes in law made by Sections 4, 5, 6, 7, 8, 9,
  16-58  10, 11, 12, and 24 of this Act apply only to the estates of persons
  16-59  who die on or after the effective date of this Act.  The estate of
  16-60  a person who dies before the effective date of this Act is covered
  16-61  by the law in effect when the person died, and the former law is
  16-62  continued in effect for that purpose.
  16-63        (c)  The changes in law made by Section 13 of this Act apply
  16-64  only to a guardian appointed on or after the effective date of this
  16-65  Act.  A guardian appointed before the effective date of this Act is
  16-66  covered by the law in effect when the guardian was appointed, and
  16-67  the former law is continued in effect for that purpose.
  16-68        (d)  The changes in law made by Section 26 of this Act apply
  16-69  only to an account created on or after the effective date of this
  16-70  Act.  An account created before the effective date of this Act is
   17-1  covered by the law in effect when the account was created, and the
   17-2  former law is continued in effect for that purpose.
   17-3        (e)  The changes in law made by Section 32 of this Act apply
   17-4  only to property that becomes subject to a trust on or after the
   17-5  effective date of this Act.  Property that becomes subject to a
   17-6  trust before the effective date of this Act is covered by the law
   17-7  in effect when the property became subject to the trust, and the
   17-8  former law is continued in effect for that purpose.
   17-9        SECTION 34.  This Act takes effect September 1, 1993.
  17-10        SECTION 35.  The importance of this legislation and the
  17-11  crowded condition of the calendars in both houses create an
  17-12  emergency and an imperative public necessity that the
  17-13  constitutional rule requiring bills to be read on three several
  17-14  days in each house be suspended, and this rule is hereby suspended.
  17-15                               * * * * *
  17-16                                                         Austin,
  17-17  Texas
  17-18                                                         May 4, 1993
  17-19  Hon. Bob Bullock
  17-20  President of the Senate
  17-21  Sir:
  17-22  We, your Committee on Jurisprudence to which was referred H.B. No.
  17-23  1200, have had the same under consideration, and I am instructed to
  17-24  report it back to the Senate with the recommendation that it do
  17-25  pass, as amended, and be printed.
  17-26                                                         Henderson,
  17-27  Chairman
  17-28                               * * * * *
  17-29                               WITNESSES
  17-30                                                  FOR   AGAINST  ON
  17-31  ___________________________________________________________________
  17-32                                                  FOR   AGAINST  ON
  17-33  ___________________________________________________________________
  17-34  Name:  Dianne Hughes                             x
  17-35  Representing:  TX Bankers Assoc.
  17-36  City:  Austin
  17-37  -------------------------------------------------------------------
  17-38  Name:  Alvin J. Golden                           x
  17-39  Representing:  State Bar-Real Estate Law
  17-40  City:  Austin
  17-41  ------------------------------------------------------------------