73R8339 CLG-D
By Naishtat H.B. No. 1987
Substitute the following for H.B. No. 1987:
By Schechter C.S.H.B. No. 1987
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to powers and duties of certain personal representatives.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 233, Texas Probate Code, is amended to
1-5 read as follows:
1-6 Sec. 233. Collection of Claims and Recovery of Property.
1-7 (a) Every personal representative of an estate shall use ordinary
1-8 diligence to collect all claims and debts due the estate and to
1-9 recover possession of all property of the estate to which its
1-10 owners have claim or title, provided there is a reasonable prospect
1-11 of collecting such claims or of recovering such property. If he
1-12 wilfully neglects to use such diligence, he and the sureties on his
1-13 bond shall be liable, at the suit of any person interested in the
1-14 estate, for the use of the estate, for the amount of such claims or
1-15 the value of such property as has been lost by such neglect.
1-16 (b) Except as provided by Subsection (c) of this section, a
1-17 personal representative <Such representatives> may enter into a
1-18 contract to convey, or may convey, a contingent interest in any
1-19 property sought to be recovered, not exceeding one-third thereof,
1-20 for services of attorneys <and incidental expenses>, subject only
1-21 to approval of the court in which the estate is being administered.
1-22 (c) A personal representative, including an independent
1-23 executor or independent administrator, may convey or contract to
1-24 convey for services of an attorney a contingent interest that
2-1 exceeds one-third of the property sought to be recovered under this
2-2 section only on the approval of the court in which the estate is
2-3 being administered. The court must approve a contract entered into
2-4 or conveyance made under this section before an attorney performs
2-5 any legal services. A contract entered into or conveyance made in
2-6 violation of this section is void, unless the court ratifies or
2-7 reforms the contract or documents relating to the conveyance to the
2-8 extent necessary to cause the contract or conveyance to meet the
2-9 requirements of this section.
2-10 (d) In approving a contract or conveyance under Subsection
2-11 (b) or (c) of this section for services of an attorney, the court
2-12 shall consider:
2-13 (1) the time and labor that will be required, the
2-14 novelty and difficulty of the questions to be involved, and the
2-15 skill that will be required to perform the legal services properly;
2-16 (2) the fee customarily charged in the locality for
2-17 similar legal services;
2-18 (3) the value of property recovered or sought to be
2-19 recovered by the personal representative under this section;
2-20 (4) the benefits to the estate that the attorney will
2-21 be responsible for securing; and
2-22 (5) the experience and ability of the attorney who
2-23 will be performing the services.
2-24 (e) On satisfactory proof to the court, a personal
2-25 representative of an estate is entitled to all necessary and
2-26 reasonable expenses incurred by the personal representative in
2-27 collecting or attempting to collect a claim or debt owed to the
3-1 estate or in recovering or attempting to recover property to which
3-2 the estate has a title or claim.
3-3 SECTION 2. Section 236, Texas Probate Code, is amended to
3-4 read as follows:
3-5 Sec. 236. Sums Allowable for Education and Maintenance of
3-6 Ward. (a) Expenditures Directed by the Court. Subject to Section
3-7 236A of this code, the <The> Court may direct the guardian of the
3-8 person to expend, for the education and maintenance of his ward, a
3-9 sum in excess of the income of the ward's estate; otherwise, the
3-10 guardian shall not be allowed, for the education and maintenance of
3-11 the ward, more than the net income of the estate. When different
3-12 persons have the guardianship of the person and estate of a ward,
3-13 the guardian of the estate shall pay to the guardian of the person
3-14 such sums as shall be fixed by the Court, at times specified by the
3-15 Court, for the education and maintenance of the ward, and, on
3-16 failure to do so, shall be compelled to make such payment by order
3-17 of the Court, after being duly cited.
3-18 (b) Court Approval of Previous Expenditures. When a
3-19 guardian has in good faith expended funds from the corpus of his
3-20 ward's estate for support and maintenance for the ward under this
3-21 section, and when it is not convenient or possible to first secure
3-22 approval of the Court, if the proof is clear and convincing that
3-23 such expenditures were reasonable and proper and such that the
3-24 Court would have granted authority to make the expenditures out of
3-25 the corpus, and that the ward received the benefits of such
3-26 expenditures, the judge, in the exercise of his sound discretion,
3-27 may approve such expenditures in the same manner as if such
4-1 expenditures were made by the guardian out of the income from the
4-2 ward's estate. Provided, however, such expenditures may not exceed
4-3 the sum of $5,000 for each ward during an annual accounting period.
4-4 SECTION 3. Part 5, Chapter VII, Texas Probate Code, is
4-5 amended by adding Section 236A to read as follows:
4-6 Sec. 236A. SUMS ALLOWED PARENTS FOR EDUCATION AND
4-7 MAINTENANCE OF MINOR WARD. (a) Except as provided by Subsection
4-8 (b) of this section, a parent who is the guardian of the person of
4-9 a ward who is 17 years of age or younger may not use the income or
4-10 the corpus from the ward's estate for the ward's support,
4-11 education, or maintenance.
4-12 (b) A court with proper jurisdiction may authorize the
4-13 guardian of the person to spend the income or the corpus from the
4-14 ward's estate to support, educate, or maintain the ward if the
4-15 guardian presents clear and convincing evidence to the court that
4-16 the ward's parents are unable without unreasonable hardship to pay
4-17 for all of the expenses related to the ward's support.
4-18 SECTION 4. The change in law made by Section 1 of this Act
4-19 applies only to a contract executed or a conveyance made by the
4-20 personal representative of an estate on or after the effective date
4-21 of this Act. A contract executed or a conveyance made by the
4-22 personal representative of an estate before the effective date of
4-23 this Act is governed by the law in effect on the date the contract
4-24 was executed or the conveyance was made, and the former law is
4-25 continued in effect for that purpose.
4-26 SECTION 5. This Act takes effect September 1, 1993.
4-27 SECTION 6. The importance of this legislation and the
5-1 crowded condition of the calendars in both houses create an
5-2 emergency and an imperative public necessity that the
5-3 constitutional rule requiring bills to be read on three several
5-4 days in each house be suspended, and this rule is hereby suspended.