1-1 By: Naishtat (Senate Sponsor - Moncrief) H.B. No. 1987
1-2 (In the Senate - Received from the House May 3, 1993;
1-3 May 4, 1993, read first time and referred to Committee on
1-4 Jurisprudence; May 18, 1993, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 18, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Henderson x
1-9 Harris of Tarrant x
1-10 Brown x
1-11 Harris of Dallas x
1-12 Luna x
1-13 Parker x
1-14 West x
1-15 A BILL TO BE ENTITLED
1-16 AN ACT
1-17 relating to powers and duties of certain personal representatives.
1-18 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-19 SECTION 1. Section 233, Texas Probate Code, is amended to
1-20 read as follows:
1-21 Sec. 233. Collection of Claims and Recovery of Property.
1-22 (a) Every personal representative of an estate shall use ordinary
1-23 diligence to collect all claims and debts due the estate and to
1-24 recover possession of all property of the estate to which its
1-25 owners have claim or title, provided there is a reasonable prospect
1-26 of collecting such claims or of recovering such property. If he
1-27 wilfully neglects to use such diligence, he and the sureties on his
1-28 bond shall be liable, at the suit of any person interested in the
1-29 estate, for the use of the estate, for the amount of such claims or
1-30 the value of such property as has been lost by such neglect.
1-31 (b) Except as provided by Subsection (c) of this section, a
1-32 personal representative <Such representatives> may enter into a
1-33 contract to convey, or may convey, a contingent interest in any
1-34 property sought to be recovered, not exceeding one-third thereof,
1-35 for services of attorneys <and incidental expenses>, subject only
1-36 to approval of the court in which the estate is being administered.
1-37 (c) A personal representative, including an independent
1-38 executor or independent administrator, may convey or contract to
1-39 convey for services of an attorney a contingent interest that
1-40 exceeds one-third of the property sought to be recovered under this
1-41 section only on the approval of the court in which the estate is
1-42 being administered. The court must approve a contract entered into
1-43 or conveyance made under this section before an attorney performs
1-44 any legal services. A contract entered into or conveyance made in
1-45 violation of this section is void, unless the court ratifies or
1-46 reforms the contract or documents relating to the conveyance to the
1-47 extent necessary to cause the contract or conveyance to meet the
1-48 requirements of this section.
1-49 (d) In approving a contract or conveyance under Subsection
1-50 (b) or (c) of this section for services of an attorney, the court
1-51 shall consider:
1-52 (1) the time and labor that will be required, the
1-53 novelty and difficulty of the questions to be involved, and the
1-54 skill that will be required to perform the legal services properly;
1-55 (2) the fee customarily charged in the locality for
1-56 similar legal services;
1-57 (3) the value of property recovered or sought to be
1-58 recovered by the personal representative under this section;
1-59 (4) the benefits to the estate that the attorney will
1-60 be responsible for securing; and
1-61 (5) the experience and ability of the attorney who
1-62 will be performing the services.
1-63 (e) On satisfactory proof to the court, a personal
1-64 representative of an estate is entitled to all necessary and
1-65 reasonable expenses incurred by the personal representative in
1-66 collecting or attempting to collect a claim or debt owed to the
1-67 estate or in recovering or attempting to recover property to which
1-68 the estate has a title or claim.
2-1 SECTION 2. Section 236, Texas Probate Code, is amended to
2-2 read as follows:
2-3 Sec. 236. Sums Allowable for Education and Maintenance of
2-4 Ward. (a) Expenditures Directed by the Court. Subject to Section
2-5 236A of this code, the <The> Court may direct the guardian of the
2-6 person to expend, for the education and maintenance of his ward, a
2-7 sum in excess of the income of the ward's estate; otherwise, the
2-8 guardian shall not be allowed, for the education and maintenance of
2-9 the ward, more than the net income of the estate. When different
2-10 persons have the guardianship of the person and estate of a ward,
2-11 the guardian of the estate shall pay to the guardian of the person
2-12 such sums as shall be fixed by the Court, at times specified by the
2-13 Court, for the education and maintenance of the ward, and, on
2-14 failure to do so, shall be compelled to make such payment by order
2-15 of the Court, after being duly cited.
2-16 (b) Court Approval of Previous Expenditures. When a
2-17 guardian has in good faith expended funds from the corpus of his
2-18 ward's estate for support and maintenance for the ward under this
2-19 section, and when it is not convenient or possible to first secure
2-20 approval of the Court, if the proof is clear and convincing that
2-21 such expenditures were reasonable and proper and such that the
2-22 Court would have granted authority to make the expenditures out of
2-23 the corpus, and that the ward received the benefits of such
2-24 expenditures, the judge, in the exercise of his sound discretion,
2-25 may approve such expenditures in the same manner as if such
2-26 expenditures were made by the guardian out of the income from the
2-27 ward's estate. Provided, however, such expenditures may not exceed
2-28 the sum of $5,000 for each ward during an annual accounting period.
2-29 SECTION 3. Part 5, Chapter VII, Texas Probate Code, is
2-30 amended by adding Section 236A to read as follows:
2-31 Sec. 236A. SUMS ALLOWED PARENTS FOR EDUCATION AND
2-32 MAINTENANCE OF MINOR WARD. (a) Except as provided by Subsection
2-33 (b) of this section, a parent who is the guardian of the person of
2-34 a ward who is 17 years of age or younger may not use the income or
2-35 the corpus from the ward's estate for the ward's support,
2-36 education, or maintenance.
2-37 (b) A court with proper jurisdiction may authorize the
2-38 guardian of the person to spend the income or the corpus from the
2-39 ward's estate to support, educate, or maintain the ward if the
2-40 guardian presents clear and convincing evidence to the court that
2-41 the ward's parents are unable without unreasonable hardship to pay
2-42 for all of the expenses related to the ward's support.
2-43 SECTION 4. The change in law made by Section 1 of this Act
2-44 applies only to a contract executed or a conveyance made by the
2-45 personal representative of an estate on or after the effective date
2-46 of this Act. A contract executed or a conveyance made by the
2-47 personal representative of an estate before the effective date of
2-48 this Act is governed by the law in effect on the date the contract
2-49 was executed or the conveyance was made, and the former law is
2-50 continued in effect for that purpose.
2-51 SECTION 5. This Act takes effect September 1, 1993.
2-52 SECTION 6. The importance of this legislation and the
2-53 crowded condition of the calendars in both houses create an
2-54 emergency and an imperative public necessity that the
2-55 constitutional rule requiring bills to be read on three several
2-56 days in each house be suspended, and this rule is hereby suspended.
2-57 * * * * *
2-58 Austin,
2-59 Texas
2-60 May 18, 1993
2-61 Hon. Bob Bullock
2-62 President of the Senate
2-63 Sir:
2-64 We, your Committee on Jurisprudence to which was referred H.B.
2-65 No. 1987, have had the same under consideration, and I am
2-66 instructed to report it back to the Senate with the recommendation
2-67 that it do pass and be printed.
2-68 Henderson,
2-69 Chairman
2-70 * * * * *
3-1 WITNESSES
3-2 FOR AGAINST ON
3-3 ___________________________________________________________________
3-4 Name: Guy Herman x
3-5 Representing: self
3-6 City: Austin
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