By: Naishtat H.B. No. 1987
73R5064 CLG-D
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) Subject to Subsection (c) of this section, a personal
1-17 representative <Such representatives> may enter into contract to
1-18 convey, or may convey, a contingent interest in any property sought
1-19 to be recovered, not exceeding one-third thereof, for services of
1-20 attorneys and an additional contingent interest in the property for
1-21 <incidental> expenses, subject only to approval of the court in
1-22 which the estate is being administered.
1-23 (c) A personal representative may convey or contract to
1-24 convey for services of attorneys or for expenses a contingent
2-1 interest that exceeds one-third of the property sought to be
2-2 recovered under this section only on the approval of the court in
2-3 which the estate is being administered. A contract entered into or
2-4 conveyance made in violation of this section is void, unless the
2-5 court reforms the contract or documents relating to the conveyance
2-6 to the extent necessary to cause the contract or conveyance to meet
2-7 the requirements of this section.
2-8 (d) A contract or conveyance under Subsection (c) of this
2-9 section for services of an attorney must be approved by the court
2-10 before the attorney performs any legal services.
2-11 (e) In approving a contract or conveyance under Subsection
2-12 (b) or (c) of this section for services of an attorney or expenses,
2-13 the court shall consider:
2-14 (1) the time and labor that will be required, the
2-15 novelty and difficulty of the questions to be involved, and the
2-16 skill that will be required to perform the legal services properly;
2-17 (2) the fee customarily charged in the locality for
2-18 similar legal services;
2-19 (3) the value of property recovered or sought to be
2-20 recovered by the personal representative under this section;
2-21 (4) the benefits to the estate that the attorney will
2-22 be responsible for securing; and
2-23 (5) the experience and ability of the attorney who
2-24 will be performing the services.
2-25 SECTION 2. Section 236, Texas Probate Code, is amended to
2-26 read as follows:
2-27 Sec. 236. Sums Allowable for Education and Maintenance of
3-1 Ward. (a) Expenditures Directed by the Court. Subject to Section
3-2 236A of this code, the <The> Court may direct the guardian of the
3-3 person to expend, for the education and maintenance of his ward, a
3-4 sum in excess of the income of the ward's estate; otherwise, the
3-5 guardian shall not be allowed, for the education and maintenance of
3-6 the ward, more than the net income of the estate. When different
3-7 persons have the guardianship of the person and estate of a ward,
3-8 the guardian of the estate shall pay to the guardian of the person
3-9 such sums as shall be fixed by the Court, at times specified by the
3-10 Court, for the education and maintenance of the ward, and, on
3-11 failure to do so, shall be compelled to make such payment by order
3-12 of the Court, after being duly cited.
3-13 (b) Court Approval of Previous Expenditures. When a
3-14 guardian has in good faith expended funds from the corpus of his
3-15 ward's estate for support and maintenance for the ward under this
3-16 section, and when it is not convenient or possible to first secure
3-17 approval of the Court, if the proof is clear and convincing that
3-18 such expenditures were reasonable and proper and such that the
3-19 Court would have granted authority to make the expenditures out of
3-20 the corpus, and that the ward received the benefits of such
3-21 expenditures, the judge, in the exercise of his sound discretion,
3-22 may approve such expenditures in the same manner as if such
3-23 expenditures were made by the guardian out of the income from the
3-24 ward's estate. Provided, however, such expenditures may not exceed
3-25 the sum of $5,000 during an annual accounting period.
3-26 SECTION 3. Part 5, Chapter VII, Texas Probate Code, is
3-27 amended by adding Section 236A to read as follows:
4-1 Sec. 236A. SUMS ALLOWED PARENTS FOR EDUCATION AND
4-2 MAINTENANCE OF MINOR WARD. (a) Except as provided by Subsection
4-3 (b) of this section, a parent who is the guardian of the person of
4-4 a ward who is 17 years of age or younger may not use the income or
4-5 the corpus from the ward's estate for the ward's support,
4-6 education, or maintenance.
4-7 (b) A court with proper jurisdiction may authorize the
4-8 guardian of the person to spend the income or the corpus from the
4-9 ward's estate to support, educate, or maintain the ward if the
4-10 guardian presents clear and convincing evidence to the court that
4-11 the ward's parents are unable to pay for all of the expenses
4-12 related to the ward's support.
4-13 SECTION 4. The change in law made by Section 1 of this Act
4-14 applies only to a contract executed or a conveyance made by the
4-15 personal representative of an estate on or after the effective date
4-16 of this Act. A contract executed or a conveyance made by the
4-17 personal representative of an estate before the effective date of
4-18 this Act is governed by the law in effect on the date the contract
4-19 was executed or the conveyance was made, and the former law is
4-20 continued in effect for that purpose.
4-21 SECTION 5. The changes in law made by Sections 2 and 3 of
4-22 this Act apply only to a person appointed guardian of the person of
4-23 a ward by a court on or after the effective date of this Act. A
4-24 person who is appointed guardian of the person of a ward before the
4-25 effective date of this Act is governed by the law in effect on the
4-26 date the person was appointed, and the former law is continued in
4-27 effect for that purpose.
5-1 SECTION 6. This Act takes effect September 1, 1993.
5-2 SECTION 7. The importance of this legislation and the
5-3 crowded condition of the calendars in both houses create an
5-4 emergency and an imperative public necessity that the
5-5 constitutional rule requiring bills to be read on three several
5-6 days in each house be suspended, and this rule is hereby suspended.