H.B. No. 2685
1-1 AN ACT
1-2 relating to guardianships of the person or estate of incapacitated
1-3 persons.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The Texas Probate Code is amended by adding
1-6 Chapter XIII to read as follows:
1-7 CHAPTER XIII. GUARDIANSHIP
1-8 PART 1. GENERAL PROVISIONS
1-9 SUBPART A. DEFINITIONS; PURPOSE; APPLICABILITY;
1-10 PROCEEDINGS IN REM
1-11 Sec. 601. Definitions. In this chapter:
1-12 (1) "Attorney ad litem" means an attorney who is
1-13 appointed by a court to represent and advocate on behalf of a
1-14 proposed ward, an incapacitated person, or an unborn person in a
1-15 guardianship proceeding.
1-16 (2) "Authorized corporate surety" means a domestic or
1-17 foreign corporation authorized to do business in this state to
1-18 issue surety, guaranty, or indemnity bonds guaranteeing the
1-19 fidelity of guardians.
1-20 (3) "Child" includes a biological or adopted child,
1-21 whether adopted by a parent under a statutory procedure or by acts
1-22 of estoppel.
1-23 (4) "Claims" includes a liability against the estate
1-24 of a minor or an incapacitated person and debts due to the estate
2-1 of a minor or an incapacitated person.
2-2 (5) "Corporate fiduciary" means a trust company or
2-3 bank having trust powers, existing or doing business under the laws
2-4 of this state or of the United States, that is authorized by law to
2-5 act under the order or appointment of any court of record, without
2-6 giving bond, as a guardian, receiver, trustee, executor, or
2-7 administrator, or, although without general depository powers, as a
2-8 depository for any money paid into court, or to become sole
2-9 guarantor or surety in or on any bond required to be given under
2-10 the laws of this state.
2-11 (6) "Court" or "probate court" means a county court in
2-12 the exercise of its probate jurisdiction, a court created by
2-13 statute and authorized to exercise original probate jurisdiction,
2-14 or a district court exercising original probate jurisdiction in
2-15 contested matters.
2-16 (7) "Estate" or "guardianship estate" means the real
2-17 and personal property of a ward or deceased ward, both as the
2-18 property originally existed and as has from time to time changed in
2-19 form by sale, reinvestment, or otherwise, and as augmented by any
2-20 accretions and additions to (including any property to be
2-21 distributed to the representative of the deceased ward by the
2-22 trustee of a trust that terminates on the ward's death) or
2-23 substitutions for the property, and as diminished by any decreases
2-24 to or distributions from the property.
2-25 (8) "Exempt property" refers to that property of a
2-26 deceased ward's estate that is exempt from execution or forced sale
2-27 by the constitution or laws of this state, and to the allowance in
3-1 lieu of the property.
3-2 (9) "Guardian ad litem" means a person who is
3-3 appointed by a court to represent the best interests of an
3-4 incapacitated person in a guardianship proceeding.
3-5 (10) "Guardianship program" means a local, county, or
3-6 regional program that provides guardianship and related services to
3-7 an incapacitated person or other person who needs assistance in
3-8 making decisions concerning the person's own welfare or financial
3-9 affairs.
3-10 (11) "Incapacitated person" means:
3-11 (A) a minor;
3-12 (B) an adult individual who, because of a
3-13 physical or mental condition, is substantially unable to provide
3-14 food, clothing, or shelter for himself or herself, to care for the
3-15 individual's own physical health, or to manage the individual's own
3-16 financial affairs;
3-17 (C) a missing person; or
3-18 (D) a person who must have a guardian appointed
3-19 to receive funds due the person from any governmental source.
3-20 (12) "Interested persons" or "persons interested"
3-21 means an heir, devisee, spouse, creditor, or any other person
3-22 having a property right in, or claim against, the estate being
3-23 administered or a person interested in the welfare of an
3-24 incapacitated person, including a minor.
3-25 (13) "Minor" means a person who is younger than 18
3-26 years of age and who has never been married or who has not had the
3-27 person's disabilities of minority removed for general purposes.
4-1 (14) "Minutes" means the guardianship minutes.
4-2 (15) "Missing person" means a person reported by an
4-3 executive department of the United States to be a prisoner of war
4-4 or missing in the course of public service to the United States.
4-5 (16) "Mortgage" or "lien" includes a deed of trust;
4-6 vendor's lien; chattel mortgage; mechanic's, materialman's, or
4-7 laborer's lien; judgment, attachment, or garnishment lien; pledge
4-8 by hypothecation; and a federal or state tax lien.
4-9 (17) "Next of kin" includes an adopted child, the
4-10 descendants of an adopted child, and the adoptive parent of an
4-11 adopted child.
4-12 (18) "Parent" means the mother of a child, a man
4-13 presumed to be the biological father of a child, a man who has been
4-14 adjudicated to be the biological father of a child by a court of
4-15 competent jurisdiction, or an adoptive mother or father of a child,
4-16 but does not include a parent as to whom the parent-child
4-17 relationship has been terminated.
4-18 (19) "Person" includes natural persons, corporations,
4-19 and guardianship programs.
4-20 (20) "Personal property" includes an interest in
4-21 goods, money, choses in action, evidence of debts, and chattels
4-22 real.
4-23 (21) "Personal representative" or "representative"
4-24 includes a guardian, and a successor guardian.
4-25 (22) "Private professional guardian" means a person,
4-26 other than an attorney or a corporate fiduciary, who is engaged in
4-27 the business of providing guardianship services.
5-1 (23) "Proceedings in guardianship," "guardianship
5-2 matter," "guardianship matters," "guardianship proceeding," and
5-3 "proceedings for guardianship" are synonymous and include a matter
5-4 or proceeding relating to a guardianship or any other matter
5-5 addressed by this chapter.
5-6 (24) "Property" includes both real and personal
5-7 property.
5-8 (25) "Proposed ward" means a person alleged to be
5-9 incapacitated in a guardianship proceeding.
5-10 (26) "Real property" includes estates and interests in
5-11 lands, corporeal or incorporeal, legal or equitable, other than
5-12 chattels real.
5-13 (27) "Statutory probate court" means a statutory court
5-14 whose jurisdiction is limited by statute to the general
5-15 jurisdiction of a probate court and a court whose statutorily
5-16 designated name contains the word "probate." County courts at law
5-17 exercising probate jurisdiction are not statutory probate courts
5-18 under this chapter unless the statutorily designated name of the
5-19 county courts at law includes the word "probate."
5-20 (28) "Surety" includes a personal and a corporate
5-21 surety.
5-22 (29) "Ward" is a person for whom a guardian has been
5-23 appointed.
5-24 (30) The singular number includes the plural; the
5-25 plural number includes the singular.
5-26 (31) The masculine gender includes the feminine and
5-27 neuter.
6-1 Sec. 602. POLICY; PURPOSE OF GUARDIANSHIP. A court may
6-2 appoint a guardian with full authority over an incapacitated person
6-3 or may grant a guardian limited authority over an incapacitated
6-4 person as indicated by the incapacitated person's actual mental or
6-5 physical limitations and only as necessary to promote and protect
6-6 the well-being of the person. If the person is not a minor, the
6-7 court may not use age as the sole factor in determining whether to
6-8 appoint a guardian for the person. In creating a guardianship that
6-9 gives a guardian limited power or authority over an incapacitated
6-10 person, the court shall design the guardianship to encourage the
6-11 development or maintenance of maximum self-reliance and
6-12 independence in the incapacitated person.
6-13 Sec. 603. LAWS APPLICABLE TO GUARDIANSHIPS. (a) To the
6-14 extent applicable and not inconsistent with other provisions of
6-15 this code, the laws and rules governing estates of decedents apply
6-16 to and govern guardianships.
6-17 (b) A reference in other sections of this code or in other
6-18 law to a person who is mentally, physically, or legally
6-19 incompetent, a person who is judicially declared incompetent, an
6-20 incompetent or an incompetent person, a person of unsound mind, or
6-21 a habitual drunkard means an incapacitated person.
6-22 Sec. 604. PROCEEDING IN REM. From the filing of the
6-23 application for the appointment of a guardian of the estate or
6-24 person, or both, until the guardianship is settled and closed under
6-25 this chapter, the administration of the estate of a minor or other
6-26 incapacitated person is one proceeding for purposes of jurisdiction
6-27 and is a proceeding in rem.
7-1 PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS
7-2 SUBPART A. JURISDICTION
7-3 Sec. 605. County Court Jurisdiction. The county court has
7-4 the general jurisdiction of a probate court. The county court
7-5 shall appoint guardians of minors and other incapacitated persons,
7-6 grant letters of guardianship, settle accounts of guardians, and
7-7 transact all business appertaining to estates subject to
7-8 guardianship, including the settlement, partition, and distribution
7-9 of the estates. The county court may also enter other orders as
7-10 may be authorized under this chapter.
7-11 Sec. 606. District Court and Other Court of Record
7-12 Jurisdiction. (a) The district court has original control and
7-13 jurisdiction over guardians and wards under regulations as may be
7-14 prescribed by law.
7-15 (b) In those counties in which there is no statutory probate
7-16 court, county court at law, or other statutory court exercising the
7-17 jurisdiction of a probate court, all applications, petitions and
7-18 motions regarding guardianships, mental illness matters, and other
7-19 matters covered by this chapter shall be filed and heard in the
7-20 county court, except that in contested guardianship matters, the
7-21 judge of the county court may on the judge's own motion, or shall
7-22 on the motion of any party to the proceeding, according to the
7-23 motion, request as provided by Section 25.0022, Government Code,
7-24 and its subsequent amendments the assignment of a statutory probate
7-25 judge to hear the contested portion of the proceeding, or transfer
7-26 the contested portion of the proceeding to the district court,
7-27 which may hear the transferred contested matters as if originally
8-1 filed in the district court. The county court continues to
8-2 exercise jurisdiction over the management of the guardianship with
8-3 the exception of the contested matter until final disposition of
8-4 the contested matter is made by the assigned judge or the district
8-5 court. In contested matters transferred to the district court as
8-6 provided by this subsection, the district court, concurrently with
8-7 the county court, has the general jurisdiction of a probate court.
8-8 On resolution of all pending contested matters, the district court
8-9 shall transfer the contested portion of the guardianship proceeding
8-10 to the county court for further proceedings not inconsistent with
8-11 the orders of the district court. If a contested portion of the
8-12 proceeding is transferred to a district court under this
8-13 subsection, the clerk of the district court may perform in relation
8-14 to the transferred portion of the proceeding any function a county
8-15 clerk may perform in that type of contested proceeding.
8-16 (c) In those counties in which there is a statutory probate
8-17 court, county court at law, or other statutory court exercising the
8-18 jurisdiction of a probate court, all applications, petitions and
8-19 motions regarding guardianships, mental illness matters, or other
8-20 matters addressed by this chapter shall be filed and heard in those
8-21 courts and the constitutional county court, rather than in the
8-22 district courts, unless otherwise provided by the legislature, and
8-23 the judge of a county court may hear any of those matters sitting
8-24 for the judge of any other county court. Except as provided by
8-25 Section 608 of this code, in contested guardianship matters, the
8-26 judge of the constitutional county court may on the judge's own
8-27 motion, and shall on the motion of a party to the proceeding,
9-1 transfer the proceeding to the statutory probate court, county
9-2 court at law, or other statutory court exercising the jurisdiction
9-3 of a probate court. The court to which the proceeding is
9-4 transferred may hear the proceeding as if originally filed in the
9-5 court.
9-6 (d) A statutory probate court has concurrent jurisdiction
9-7 with the district court in all actions by or against a person in
9-8 the person's capacity as guardian.
9-9 (e) A court that exercises original probate jurisdiction has
9-10 the power to hear all matters incident to an estate. When a surety
9-11 is called on to perform in place of a guardian, a court exercising
9-12 original probate jurisdiction may award judgment against the
9-13 guardian in favor of the guardian's surety in the same suit, even
9-14 if the ward has died.
9-15 (f) A final order of a court that exercises original probate
9-16 jurisdiction is appealable to a court of appeals.
9-17 Sec. 607. Matters Appertaining and Incident to an Estate.
9-18 (a) In a proceeding in a constitutional county court or a
9-19 statutory county court at law, the phrases "appertaining to
9-20 estates" and "incident to an estate" in this chapter include the
9-21 appointment of guardians, the issuance of letters of guardianship,
9-22 a claim by or against a guardianship estate, all actions for trial
9-23 of title to land incident to a guardianship estate and for the
9-24 enforcement of liens incident to a guardianship estate, all actions
9-25 for trial of the right of property incident to a guardianship
9-26 estate, and generally all matters relating to the settlement,
9-27 partition, and distribution of a guardianship estate.
10-1 (b) In a proceeding in a statutory probate court or district
10-2 court, the phrases "appertaining to estates" and "incident to an
10-3 estate" in this chapter include the appointment of guardians, the
10-4 issuance of letters of guardianship, all claims by or against a
10-5 guardianship estate, all actions for trial of title to land and for
10-6 the enforcement of liens on the land, all actions for trial of the
10-7 right of property, and generally all matters relating to the
10-8 settlement, partition, and distribution of a guardianship estate.
10-9 A statutory probate court, in the exercise of its jurisdiction and
10-10 notwithstanding any other provision of this chapter, may hear all
10-11 suits, actions, and applications filed against or on behalf of any
10-12 guardianship. In a situation in which the jurisdiction of a
10-13 statutory probate court is concurrent with that of a district
10-14 court, a cause of action appertaining to or incident to a
10-15 guardianship estate shall be brought in a statutory probate court
10-16 rather than in the district court.
10-17 (c) In all actions by or against a person in the person's
10-18 capacity as a guardian, a statutory probate court has concurrent
10-19 jurisdiction with a district court.
10-20 (d) A statutory probate court may exercise the pendent and
10-21 ancillary jurisdiction necessary to promote judicial efficiency and
10-22 economy.
10-23 (e) Subsections (c) and (d) of this section apply whether or
10-24 not the matter is appertaining to or incident to a guardianship
10-25 estate.
10-26 Sec. 608. Transfer of Guardianship Proceeding. A judge of a
10-27 statutory probate court on the motion of a party to the action or
11-1 of a person interested in a guardianship, may transfer to the
11-2 judge's court from a district, county, or statutory court a cause
11-3 of action appertaining to or incident to a guardianship estate that
11-4 is pending in the statutory probate court and may consolidate the
11-5 transferred cause of action with the other proceedings in the
11-6 statutory probate court relating to the guardianship estate.
11-7 Sec. 609. Contested Guardianship of the Person of a Minor.
11-8 (a) If an interested person contests an application for the
11-9 appointment of a guardian of the person of a minor or an interested
11-10 person seeks the removal of a guardian of the person of a minor,
11-11 the judge, on the judge's own motion, may transfer all matters
11-12 relating to the guardianship of the person of the minor to a court
11-13 of competent jurisdiction in which a suit affecting the
11-14 parent-child relationship under the Family Code is pending.
11-15 (b) The probate court that transfers a proceeding under this
11-16 section to a court with proper jurisdiction over suits affecting
11-17 the parent-child relationship shall send to the court to which the
11-18 transfer is made the complete files in all matters affecting the
11-19 guardianship of the person of the minor and certified copies of all
11-20 entries in the minutes. The transferring court shall keep a copy
11-21 of the transferred files. If the transferring court retains
11-22 jurisdiction of the guardianship of the estate of the minor or of
11-23 another minor who was the subject of the suit, the court shall send
11-24 a copy of the complete files to the court to which the transfer is
11-25 made and shall keep the original files.
11-26 (c) The court to which a transfer is made under this section
11-27 shall apply the procedural and substantive provisions of the Family
12-1 Code, including Section 11.05(h), and its subsequent amendments, in
12-2 regard to enforcing an order rendered by the court from which the
12-3 proceeding was transferred.
12-4 SUBPART B. VENUE
12-5 Sec. 610. VENUE FOR APPOINTMENT OF GUARDIAN. (a) Except as
12-6 otherwise authorized by this section, a proceeding for the
12-7 appointment of a guardian for the person or estate, or both, of an
12-8 incapacitated person shall be brought in the county in which the
12-9 proposed ward resides or is located on the date the application is
12-10 filed or in the county in which the principal estate of the
12-11 proposed ward is located.
12-12 (b) A proceeding for the appointment of a guardian for the
12-13 person or estate, or both, of a minor may be brought:
12-14 (1) in the county in which both the minor's parents
12-15 reside;
12-16 (2) if the parents do not reside in the same county,
12-17 in the county in which the parent who is the sole managing
12-18 conservator of the minor resides, or in the county in which the
12-19 parent who is the joint managing conservator with the greater
12-20 period of physical possession of and access to the minor resides;
12-21 (3) if only one parent is living and the parent has
12-22 custody of the minor, in the county in which that parent resides;
12-23 (4) if both parents are dead but the minor was in the
12-24 custody of a deceased parent, in the county in which the last
12-25 surviving parent having custody resided; or
12-26 (5) if both parents of a minor child have died in a
12-27 common disaster and there is no evidence that the parents died
13-1 other than simultaneously, in the county in which both deceased
13-2 parents resided at the time of their simultaneous deaths if they
13-3 resided in the same county.
13-4 (c) A proceeding for the appointment of a guardian who was
13-5 appointed by will may be brought in the county in which the will
13-6 was admitted to probate or in the county of the appointee's
13-7 residence if the appointee resides in this state.
13-8 (d) A proceeding for the appointment of a guardian for the
13-9 estate of a missing person may be brought:
13-10 (1) in the county in which the missing person's spouse
13-11 resides;
13-12 (2) if there is no spouse, in the county in which a
13-13 parent or child of the missing person resides; or
13-14 (3) if there is no spouse, parent, or child, in the
13-15 county in which the missing person's next of kin resides.
13-16 Sec. 611. Concurrent Venue and Transfer for Want of Venue.
13-17 (a) If two or more courts have concurrent venue of a guardianship
13-18 matter, the court in which an application for a guardianship
13-19 proceeding is initially filed has and retains jurisdiction of the
13-20 guardianship matter. A proceeding is considered commenced by the
13-21 filing of an application alleging facts sufficient to confer venue,
13-22 and the proceeding initially legally commenced extends to all of
13-23 the property of the guardianship estate.
13-24 (b) If a guardianship proceeding is commenced in more than
13-25 one county, it shall be stayed except in the county in which it was
13-26 initially commenced until final determination of proper venue is
13-27 made by the court in the county in which it was initially
14-1 commenced.
14-2 (c) If it appears to the court at any time before the
14-3 guardianship is closed that the proceeding was commenced in a court
14-4 that did not have venue over the proceeding, the court shall, on
14-5 the application of any interested person, transfer the proceeding
14-6 to the proper county.
14-7 (d) When a proceeding is transferred to another county under
14-8 a provision of this chapter, all orders entered in connection with
14-9 the proceeding shall be valid and shall be recognized in the court
14-10 to which the guardianship was ordered transferred, if the orders
14-11 were made and entered in conformance with the procedures prescribed
14-12 by this code.
14-13 Sec. 612. APPLICATION FOR TRANSFER OF GUARDIANSHIP TO
14-14 ANOTHER COUNTY. When a guardian or any other person desires to
14-15 remove the transaction of the business of the guardianship from one
14-16 county to another, the person shall file a written application in
14-17 the court in which the guardianship is pending stating the reason
14-18 for moving the transaction of business.
14-19 Sec. 613. NOTICE. (a) On filing an application to remove a
14-20 guardianship to another county, the sureties on the bond of the
14-21 guardian shall be cited by personal service to appear and show
14-22 cause why the application should not be granted.
14-23 (b) If an application is filed by a person other than the
14-24 guardian, the guardian shall be cited by personal service to appear
14-25 and show cause why the application should not be granted.
14-26 Sec. 614. COURT ACTION. On hearing an application under
14-27 Section 612 of this code, if good cause is not shown to deny the
15-1 application and it appears that removal of the guardianship is in
15-2 the best interests of the ward, the court shall enter an order
15-3 authorizing the removal on payment on behalf of the estate of all
15-4 accrued costs.
15-5 Sec. 615. TRANSCRIPT OF RECORD. When an order of removal is
15-6 made under Section 614 of this code, the clerk shall record any
15-7 unrecorded papers of the guardianship required to be recorded and
15-8 make out a complete certified transcript of all the orders,
15-9 decrees, judgments, and proceedings in the guardianship. On
15-10 payment of the clerk's fees, the clerk shall transmit the
15-11 transcript, with the original papers in the case, to the county
15-12 clerk of the county to which the guardianship was ordered removed.
15-13 Sec. 616. REMOVAL EFFECTIVE. The order removing a
15-14 guardianship does not take effect until:
15-15 (1) the transcript required by Section 615 of this
15-16 code is filed in the office of the county clerk of the county to
15-17 which the guardianship was ordered removed; and
15-18 (2) a certificate under the clerk's official seal and
15-19 reporting the filing of the transcript is filed in the court
15-20 ordering the removal by the county clerk of the county to which the
15-21 guardianship was ordered removed.
15-22 Sec. 617. CONTINUATION OF GUARDIANSHIP. When a guardianship
15-23 is removed from one county to another in accordance with this
15-24 subpart, the guardianship proceeds in the court to which it was
15-25 removed as if it had been originally commenced in that court. It
15-26 is not necessary to record in the receiving court any of the papers
15-27 in the case that were recorded in the court from which the case was
16-1 removed.
16-2 Sec. 618. NEW GUARDIAN APPOINTED ON REMOVAL. If it appears
16-3 to the court that removal of the guardianship is in the best
16-4 interests of the ward, but that because of the removal it will be
16-5 unduly expensive or unduly inconvenient to the estate for the
16-6 guardian of the estate to continue to serve in that capacity, the
16-7 court may in its order of removal revoke the letters of
16-8 guardianship and appoint a new guardian, and the former guardian
16-9 shall account for and deliver the estate as provided by this
16-10 chapter in a case in which a guardian resigns.
16-11 SUBPART C. DUTIES AND RECORDS OF CLERK
16-12 Sec. 621. Application and Other Papers to be Filed With
16-13 Clerk. (a) An application for a guardianship proceeding, a
16-14 complaint, petition, or other paper permitted or required by law to
16-15 be filed in the court in guardianship matters shall be filed with
16-16 the county clerk of the proper county.
16-17 (b) The county clerk shall file the paper received under
16-18 this section and endorse on each paper the date filed, the docket
16-19 number, and the clerk's official signature.
16-20 Sec. 622. COSTS AND SECURITY. (a) The laws regulating
16-21 costs in ordinary civil cases apply to a guardianship matter unless
16-22 otherwise expressly provided by this chapter.
16-23 (b) When a person other than the guardian, attorney ad
16-24 litem, or guardian ad litem files an application, complaint, or
16-25 opposition in relation to a guardianship matter, the clerk may
16-26 require the person to give security for the probable costs of the
16-27 guardianship proceeding before filing. A person interested in the
17-1 guardianship or in the welfare of the ward, or an officer of the
17-2 court, at any time before the trial of an application, complaint,
17-3 or opposition in relation to a guardianship matter, may obtain from
17-4 the court, on written motion, an order requiring the person who
17-5 filed the application, complaint, or opposition to give security
17-6 for the probable costs of the proceeding. The rules governing
17-7 civil suits in the county court relating to this subject control in
17-8 these cases.
17-9 (c) No security for costs shall be required of a guardian,
17-10 attorney ad litem, or guardian ad litem appointed under this
17-11 chapter by a court of this state in any suit brought by the
17-12 guardian, attorney ad litem, or guardian ad litem in their
17-13 respective fiduciary capacities.
17-14 Sec. 623. JUDGE'S GUARDIANSHIP DOCKET. (a) The county
17-15 clerk shall keep a record book to be styled "Judge's Guardianship
17-16 Docket" and shall enter in the record book:
17-17 (1) the name of each person on whose person or estate
17-18 a proceeding is had or is sought to be had;
17-19 (2) the name of the guardian of the estate or person
17-20 or of the applicant for letters;
17-21 (3) the date the original application for a
17-22 guardianship proceeding was filed;
17-23 (4) a minute, including the date, of each order,
17-24 judgment, decree, and proceeding in each estate; and
17-25 (5) a number of each guardianship on the docket in the
17-26 order in which a proceeding is commenced.
17-27 (b) Each paper filed in a guardianship proceeding shall be
18-1 given the corresponding docket number of the estate.
18-2 Sec. 624. CLAIM DOCKET. The county clerk shall keep a
18-3 record book to be styled "Claim Docket" and shall enter in the
18-4 claim docket all claims presented against a guardianship for court
18-5 approval. The claim docket shall be ruled in 16 columns at proper
18-6 intervals from top to bottom, with a short note of the contents at
18-7 the top of each column. One or more pages shall be assigned to
18-8 each guardianship. The following information shall be entered in
18-9 the respective columns beginning with the first or marginal
18-10 column: The names of claimants in the order in which their claims
18-11 are filed; the amount of the claim; its date; the date of filing;
18-12 when due; the date from which it bears interest; the rate of
18-13 interest; when allowed by the guardian; the amount allowed; the
18-14 date of rejection; when approved; the amount approved; when
18-15 disapproved; the class to which the claim belongs; when established
18-16 by judgment of a court; the amount of the judgment.
18-17 Sec. 625. GUARDIANSHIP MINUTES AND PAPERS TO BE RECORDED
18-18 THEREIN. The county clerk shall keep a record book styled
18-19 "Guardianship Minutes" and shall enter in the guardianship minutes
18-20 all orders in full, judgments, decrees, and proceedings of the
18-21 court, in addition to all:
18-22 (1) applications for the granting of guardianship;
18-23 (2) citations and notices, whether published or
18-24 posted, with the returns on the citations and notices;
18-25 (3) bonds and official oaths;
18-26 (4) inventories, appraisements, and lists of claims;
18-27 (5) exhibits and accounts;
19-1 (6) reports of hiring, renting, or sale;
19-2 (7) applications for sale or partition of real estate
19-3 and reports of sale and of commissioners of partition;
19-4 (8) applications for authority to execute leases for
19-5 mineral development, or for pooling or unitization of lands,
19-6 royalty, or other interest in minerals, or to lend or invest money;
19-7 (9) reports of lending or investing money; and
19-8 (10) reports of guardians of the persons.
19-9 Sec. 626. GUARDIANSHIP FEE BOOK. The county clerk shall
19-10 keep a record book styled "Guardianship Fee Book" and shall enter
19-11 in the guardianship fee book each item of costs that accrue to the
19-12 officers of the court, with witness fees, if any, showing the:
19-13 (1) party to whom the costs or fees are due;
19-14 (2) date of the accrual of the costs or fees;
19-15 (3) guardianship or party liable for the costs or
19-16 fees; and
19-17 (4) date on which the costs or fees are paid.
19-18 Sec. 627. INDEX. The county clerk shall properly index each
19-19 record book and keep it open for public inspection but may not
19-20 release it from the clerk's custody.
19-21 Sec. 628. USE OF RECORDS AS EVIDENCE. The record books
19-22 described in other sections of this chapter, or certified copies of
19-23 the record books are evidence in any court of this state.
19-24 Sec. 629. CALL OF THE DOCKETS. The judge of the court in
19-25 which a guardianship proceeding is pending, as the judge
19-26 determines, shall call guardianship matters in their regular order
19-27 on both the guardianship and claim dockets and shall make necessary
20-1 orders.
20-2 Sec. 630. CLERK MAY SET HEARINGS. If the county judge is
20-3 absent from the county seat or is on vacation, disqualified, ill,
20-4 or deceased and is unable to designate the time and place for
20-5 hearing a guardianship matter pending in the judge's court, the
20-6 county clerk of the county in which the matter is pending may
20-7 designate the time and place for hearing, entering the setting on
20-8 the judge's docket and certifying on the docket the reason that the
20-9 judge is not acting to set the hearing. If a qualified judge is
20-10 not present for the hearing, after service of the notices and
20-11 citations required by law with reference to the time and place of
20-12 hearing has been perfected, the hearing is automatically continued
20-13 from day to day until a qualified judge is present to hear and
20-14 determine the matter.
20-15 Sec. 631. CLERK'S DUTIES. (a) If the proper venue is
20-16 finally determined to be in another county, the clerk, after making
20-17 and retaining a true copy of the entire file in the case, shall
20-18 transmit the original file to the proper county, and a proceeding
20-19 shall be held in the proper county in the same manner as if the
20-20 proceeding had originally been instituted in the proper county.
20-21 (b) By transmitting to the proper court in the proper county
20-22 for venue purposes the original file in the case, with certified
20-23 copies of all entries in the minutes made in the file, an
20-24 administration of the guardianship in the proper county for venue
20-25 purposes shall be completed in the same manner as if the proceeding
20-26 had originally been instituted in that county.
20-27 (c) The clerk of the court from which the proceeding is
21-1 transferred shall transmit to the court to which the proceeding is
21-2 transferred the original file in the proceeding and a certified
21-3 copy of the entries in the minutes that relate to the proceeding.
21-4 SUBPART D. SERVICE AND NOTICE
21-5 Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
21-6 CITATION, NOTICES, AND WRITS IN GUARDIANSHIP MATTERS. (a) A
21-7 person does not need to be cited or otherwise given notice in a
21-8 guardianship matter except in situations in which this chapter
21-9 expressly provides for citation or the giving of notice. If this
21-10 chapter does not expressly provide for citation or the issuance or
21-11 return of notice in a guardianship matter, the court may require
21-12 that notice be given. If the court requires that notice be given,
21-13 the court shall prescribe the form and manner of service and return
21-14 of service.
21-15 (b) Unless a court order is required by a provision of this
21-16 chapter, the county clerk shall issue without a court order
21-17 necessary citations, writs, and process in guardianship matters and
21-18 all notices not required to be issued by guardians.
21-19 (c) A citation and notice issued by the clerk shall be
21-20 signed and sealed by the clerk and shall be styled "The State of
21-21 Texas." A notice required to be given by a guardian shall be in
21-22 writing and signed by the guardian in the guardian's official
21-23 capacity. A citation or notice shall be dated and directed to the
21-24 person that is being cited or notified and must state the style and
21-25 number of the proceeding and the court in which the proceeding is
21-26 pending and must describe generally the nature of the proceeding or
21-27 matter to which the citation or notice relates. A precept directed
22-1 to an officer is not necessary. A citation or notice must direct
22-2 the person cited or notified to appear by filing a written contest
22-3 or answer or perform other required acts. A citation or notice
22-4 must state when and where an appearance or performance by a person
22-5 cited or notified is required. A citation or notice is not
22-6 defective because it contains a precept directed to an officer
22-7 authorized to serve it. A writ or other process other than a
22-8 citation or notice shall be directed "To any sheriff or constable
22-9 within the State of Texas" and may not be held defective because it
22-10 is directed to the sheriff or any constable of a specific county if
22-11 the writ or other process is properly served within the named
22-12 county by an officer authorized to serve it.
22-13 (d) In all situations in which this chapter requires that
22-14 notice be given or that a person be cited, and in which a specific
22-15 method of giving the notice or citing the person, or a specific
22-16 method of service and return of the citation or notice is not
22-17 given, or an insufficient or inadequate provision appears with
22-18 respect to any matter relating to citation or notice, or on request
22-19 of an interested person, notice or citation shall be issued,
22-20 served, and returned in the manner the court, by written order,
22-21 directs in accordance with this chapter and the Texas Rules of
22-22 Civil Procedure and has the same force and effect as if the manner
22-23 of service and return had been specified in this chapter.
22-24 (e) Except in instances in which this chapter expressly
22-25 provides for another method of service, a notice or citation
22-26 required to be served on a guardian or receiver shall be served by
22-27 the clerk that issues the citation or notice. The clerk shall
23-1 serve the citation or notice by sending the original citation or
23-2 notice by registered or certified mail to the attorney of record
23-3 for the guardian or receiver or to the guardian or receiver, if the
23-4 guardian or receiver does not have an attorney of record.
23-5 (f)(1) In cases in which it is provided that personal
23-6 service shall be had with respect to a citation or notice, the
23-7 citation or notice must be served on the attorney of record for the
23-8 person who is being cited or notified. Notwithstanding the
23-9 requirement of personal service, service may be made on the
23-10 attorney by any method specified under this chapter for service on
23-11 an attorney. If there is no attorney of record in the proceeding
23-12 for the person who is being cited or notified, or if an attempt to
23-13 make service on the attorney was unsuccessful, a citation or notice
23-14 directed to a person within this state must be served in person by
23-15 the sheriff or constable on the person who is being cited or
23-16 notified by delivering to the person a true copy of the citation or
23-17 notice at least 10 days before the return day on the citation or
23-18 notice, exclusive of the date of service. If the person who is
23-19 being cited or notified is absent from the state or is a
23-20 nonresident, the citation or notice may be served by a
23-21 disinterested person competent to make oath of the fact. The
23-22 citation or notice served by a disinterested person shall be
23-23 returnable at least 10 days after the date of service, exclusive of
23-24 the date of service. The return of the person serving the citation
23-25 or notice shall be endorsed on or attached to the citation or
23-26 notice. The return must show the time and place of service,
23-27 certify that a true copy of the citation or notice was delivered to
24-1 the person directed to be served, be subscribed and sworn to before
24-2 an officer authorized by the laws of this state to take affidavits,
24-3 under the hand and official seal of the officer, and returned to
24-4 the county clerk who issued the citation or notice. If the
24-5 citation or notice is returned with the notation that the person
24-6 sought to be served, whether or not within this state, cannot be
24-7 found, the clerk shall issue a new citation or notice directed to
24-8 the person sought to be served and service shall be by publication.
24-9 (2) When citation or notice is required to be posted,
24-10 the sheriff or constable shall post the citation or notice at the
24-11 courthouse door of the county in which the proceeding is pending,
24-12 or at the place in or near the courthouse where public notices
24-13 customarily are posted, for at least 10 days before the return day
24-14 of the citation or notice, exclusive of the date of posting. The
24-15 clerk shall deliver the original and a copy of the citation or
24-16 notice to the sheriff or a constable of the proper county, who
24-17 shall post the copy as prescribed by this section and return the
24-18 original to the clerk, stating in a written return of the copy the
24-19 time when and the place where the sheriff or constable posted the
24-20 copy. The date of posting is the date of service. When posting of
24-21 notice by a guardian is authorized or required, the method
24-22 prescribed by this section shall be followed. The notice is to be
24-23 issued in the name of the guardian, addressed and delivered to,
24-24 posted and returned by, the proper officer, and filed with the
24-25 clerk.
24-26 (3) When a person is to be cited or notified by
24-27 publication, the citation or notice shall be published once in a
25-1 newspaper of general circulation in the county in which the
25-2 proceeding is pending, and the publication shall be not less than
25-3 10 days before the return date of the citation or notice, exclusive
25-4 of the date of publication. The date of publication of the
25-5 newspaper in which the citation or notice is published appears is
25-6 the date of service. If there is no newspaper of general
25-7 circulation published or printed in the county in which citation or
25-8 notice is to be had, service of the citation or notice shall be by
25-9 posting.
25-10 (4)(A) When a citation or notice is required or
25-11 permitted to be served by registered or certified mail, other than
25-12 a notice required to be given by a guardian, the clerk shall issue
25-13 the citation or notice and shall serve the citation or notice by
25-14 sending the original citation or notice by registered or certified
25-15 mail. A guardian shall issue notice required to be given by the
25-16 guardian by registered or certified mail, and the guardian shall
25-17 serve the notice by sending the original notice by registered or
25-18 certified mail. The citation or notice shall be mailed return
25-19 receipt requested with instructions to deliver to the addressee
25-20 only. The envelope containing the citation or notice shall be
25-21 addressed to the attorney of record in the proceeding for the
25-22 person who is being cited or notified, but if there is no attorney
25-23 of record, or if the citation or notice is returned undelivered,
25-24 the envelope containing the citation or notice shall be addressed
25-25 to the person who is being cited or notified. A copy of the
25-26 citation or notice and the certificate of the clerk or guardian
25-27 showing the fact and date of mailing shall be filed and recorded.
26-1 If a receipt is returned, it shall be attached to the certificate.
26-2 (B) When a citation or notice is required or
26-3 permitted to be served by ordinary mail, the clerk or the guardian
26-4 when required by statute or court order, shall serve the citation
26-5 or notice by mailing the original to the person being cited or
26-6 notified. A copy of the citation or notice and a certificate of
26-7 the person serving the citation or notice that shows the fact and
26-8 time of mailing shall be filed and recorded.
26-9 (C) When service is made by mail, the date of
26-10 mailing is the date of service. Service by mail must be made not
26-11 less than 20 days before the return day of the citation or notice,
26-12 exclusive of the date of service.
26-13 (D) If a citation or notice served by mail is
26-14 returned undelivered, a new citation or notice shall be issued, and
26-15 the new citation or notice shall be served by posting.
26-16 (g) A citation or notice issued by the clerk and served by
26-17 personal service, by mail, by posting, or by publication shall be
26-18 returned to the court from which the citation or notice was issued
26-19 on the first Monday after the service is perfected.
26-20 (h) In a guardianship matter in which citation or notice is
26-21 required to be served by posting and issued in conformity with the
26-22 applicable provision of this code, the citation or notice and the
26-23 service of and return of the citation or notice is sufficient and
26-24 valid if a sheriff or constable posts a copy of the citation or
26-25 notice at the place or places prescribed by this chapter on a day
26-26 that is sufficiently before the return day contained in the
26-27 citation or notice for the period of time for which the citation or
27-1 notice is required to be posted to elapse before the return day of
27-2 the citation or notice. The sufficiency or validity of the
27-3 citation or notice or the service of or return of the service of
27-4 the citation or notice is not affected by the fact that the sheriff
27-5 or constable makes his return on the citation or notice and returns
27-6 the citation or notice to the court before the period elapses for
27-7 which the citation or notice is required to be posted, even though
27-8 the return is made, and the citation or notice is returned to the
27-9 court, on the same day it is issued.
27-10 (i) Proof of service by publication, posting, mailing, or
27-11 otherwise in all cases requiring notice or citation shall be filed
27-12 before a hearing. Proof of service made by a sheriff or constable
27-13 shall be made by the return of service. Service made by a private
27-14 person shall be proved by the person's affidavit. Proof of service
27-15 by publication shall be made by an affidavit of the publisher or of
27-16 an employee of the publisher that shows the issue date of the
27-17 newspaper that carried the notice or citation and that has attached
27-18 to or embodied in the affidavit a copy of the notice or citation.
27-19 Proof of service by mail shall be made by the certificate of the
27-20 clerk, or the affidavit of the guardian or other person that makes
27-21 the service that states the fact and time of mailing. The return
27-22 receipt must be attached to the certificate, if a receipt has been
27-23 returned if service is made by registered or certified mail.
27-24 (j) At any time after an application is filed for the
27-25 purpose of commencing a guardianship proceeding, a person
27-26 interested in the estate or welfare of a ward or an incapacitated
27-27 person may file with the clerk a written request that the person be
28-1 notified of any or all specifically designated motions,
28-2 applications, or pleadings filed by any person, or by a person
28-3 specifically designated in the request. The person who makes the
28-4 request is responsible for the fees and costs associated with the
28-5 documents specified in the request. The clerk may require a
28-6 deposit to cover the estimated costs of furnishing the person with
28-7 the requested notice. The clerk by ordinary mail shall send to the
28-8 requesting person a copy of any document specified in the request.
28-9 A proceeding is not invalid if the clerk fails to comply with the
28-10 request under this subsection.
28-11 Sec. 633. NOTICE AND CITATION FOR APPLICATION OF
28-12 GUARDIANSHIP. (a) On the filing of an application for
28-13 guardianship, notice shall be issued and served as provided by this
28-14 section.
28-15 (b) The court clerk shall issue a notice stating that the
28-16 application for guardianship was filed, the name of the proposed
28-17 ward, and the name of the applicant. The notice must cite all
28-18 persons interested in the welfare of the proposed ward to appear at
28-19 the time and place stated in the notice if they wish to contest the
28-20 application.
28-21 (c) A copy of the notice shall be posted, and the sheriff or
28-22 other officer posting the notice shall return the original notice,
28-23 officially signed and marked in writing with the time and place of
28-24 posting.
28-25 (d) The sheriff or other officer posting the notice shall
28-26 personally serve a copy of the notice, with citation to appear and
28-27 answer the application for guardianship, to:
29-1 (1) the proposed ward, unless the proposed ward is a
29-2 missing person, or a parent with whom the minor resides if the
29-3 proposed ward is a minor who is 14 years of age or younger;
29-4 (2) the proposed ward's parents; and
29-5 (3) any conservator or person having control of the
29-6 care and welfare of the proposed ward.
29-7 (e) The court clerk, at the applicant's request, or the
29-8 applicant shall mail a copy of the notice by registered or
29-9 certified mail, return receipt requested, to the following persons
29-10 if their whereabouts are known or can be reasonably ascertained:
29-11 (1) to the spouse, the parents, all siblings, and all
29-12 children of a proposed ward; and
29-13 (2) a person whom the applicant knows to hold a power
29-14 of attorney signed by the proposed ward.
29-15 (f) A person other than the proposed ward who is entitled to
29-16 receive notice or personal service of citation under Subsections
29-17 (d) and (e) of this section may, in person or by attorney ad litem,
29-18 by writing filed with the clerk, waive the receipt of notice or the
29-19 issuance and personal service of citation.
29-20 (g) The court may not act on an application for the creation
29-21 of a guardianship until the Monday following the expiration of the
29-22 10-day period beginning the date service of notice and citation has
29-23 been made as provided by this section.
29-24 Sec. 634. SERVICE ON ATTORNEY. If an attorney has entered
29-25 an appearance on record for a party in a guardianship proceeding, a
29-26 citation or notice required to be served on the party shall be
29-27 served on the attorney. Service on the attorney of record is in
30-1 lieu of service on the party for whom the attorney appears. Except
30-2 as provided by Section 633(f) of this code, an attorney ad litem
30-3 may not waive personal service of citation. A notice served on an
30-4 attorney under this section may be served by registered or
30-5 certified mail or by delivery to the attorney in person. A party
30-6 to the proceeding or the party's attorney of record, an appropriate
30-7 sheriff or constable, or another person who is competent to testify
30-8 may serve notice or citation to an attorney under this section. A
30-9 written statement by an attorney of record, the return of the
30-10 officer, or the affidavit of a person that shows service is prima
30-11 facie evidence of the fact of service.
30-12 Sec. 635. WAIVER OF NOTICE. A competent person who is
30-13 interested in a hearing in a guardianship proceeding, in person or
30-14 by attorney, may waive in writing notice of the hearing. A consul
30-15 or other representative of a foreign government, whose appearance
30-16 has been entered as provided by law on behalf of a person residing
30-17 in a foreign country, may waive notice on behalf of the person. A
30-18 person who submits to the jurisdiction of the court in a hearing is
30-19 deemed to have waived notice of the hearing.
30-20 Sec. 636. NOTICES TO VETERANS ADMINISTRATION BY GUARDIANS.
30-21 When an annual or other account of funds, or an application for the
30-22 expenditure of or investment of funds is filed by a guardian whose
30-23 ward is a beneficiary of the Veterans Administration, or when a
30-24 claim against the estate of a ward who is a beneficiary of the
30-25 Veterans Administration is filed, the court shall set a date for
30-26 the hearing of the account, application, petition, or claim to be
30-27 held not less than 20 days from the date of the filing of the
31-1 account, application, petition, or claim. The clerk of the court
31-2 in which the account, application, petition, or claim is filed
31-3 shall give notice of the hearing to the office of Veterans
31-4 Administration in whose territory the court is located of the
31-5 hearing by mailing to the office a certified copy of the account,
31-6 application, petition, or claim not less than 15 days before the
31-7 hearing date. An office of Veterans Administration, through its
31-8 attorney, may waive the service of notice and the time within which
31-9 a hearing may be had in those cases. The account, application,
31-10 petition, or claim shall be filed in duplicate, and the clerk of
31-11 the court is entitled to a fee of 25 cents, taxable against the
31-12 estate, for certifying the copy of the account, application,
31-13 petition, or claim. The clerk shall mail to the office of the
31-14 Veterans Administration the certified copy. If not filed in
31-15 duplicate, the clerk shall be entitled to an additional fee of 15
31-16 cents per 100 words for making a copy of the account, application,
31-17 petition, or claim. The additional copying costs shall be taxed
31-18 and collected from the guardian and may not be charged to the
31-19 ward's estate.
31-20 SUBPART E. TRIAL AND HEARING MATTERS
31-21 Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a
31-22 pleading in a guardianship matter or an order based on the pleading
31-23 based on a defect of form or substance in the pleading, unless the
31-24 defect has been timely objected to and called to the attention of
31-25 the court in which the proceeding was or is pending.
31-26 Sec. 642. STANDING TO COMMENCE OR CONTEST PROCEEDING. (a)
31-27 Except as provided by Subsection (b) of this section, any person
32-1 has the right to commence any guardianship proceeding or to appear
32-2 and contest any guardianship proceeding or the appointment of a
32-3 particular person as guardian.
32-4 (b) A person who has an interest that is adverse to a
32-5 proposed ward or incapacitated person may not:
32-6 (1) file an application to create a guardianship for
32-7 the proposed ward or incapacitated person;
32-8 (2) contest the creation of a guardianship for the
32-9 proposed ward or incapacitated person; or
32-10 (3) contest the appointment of a person as a guardian
32-11 of the person or estate, or both, of the proposed ward or
32-12 incapacitated person.
32-13 Sec. 643. TRIAL BY JURY. A party in a contested
32-14 guardianship proceeding is entitled, on request, to a jury trial.
32-15 Sec. 644. HEARING BY SUBMISSION. (a) A court may consider
32-16 by submission a motion or application filed under this chapter
32-17 unless:
32-18 (1) the proceeding is contested;
32-19 (2) the motion or application is superseded by local
32-20 rules; or
32-21 (3) the proceeding is an application for the
32-22 appointment of a guardian.
32-23 (b) A motion or application that a court may consider under
32-24 submission must be accompanied by a notice of the filing of the
32-25 motion or application that contains the date the motion or
32-26 application is to be submitted to the court. The time for notice
32-27 provided under this subsection may not be less than the time
33-1 otherwise prescribed by law for notice of other motions or
33-2 applications filed with the court.
33-3 (c) Without court approval, a motion or application that a
33-4 court may consider under submission may not be submitted to the
33-5 court before the 10th day after the date the motion or application
33-6 was filed.
33-7 (d) A motion or application must be submitted to the court
33-8 for a ruling on the date of submission that is contained in the
33-9 notice of submission under Subsection (b) of this section or on a
33-10 later date that is approved by the court.
33-11 (e) Without court approval, a response to a motion or
33-12 application that a court may consider under submission must be in
33-13 writing and must be filed before the second business day before the
33-14 date of submission.
33-15 (f) On the date of submission or another date that is
33-16 approved by the court, the court shall schedule a hearing for a
33-17 motion or application that a court may consider under submission
33-18 only if a response to the motion or application is filed by a
33-19 person interested in the guardianship who:
33-20 (1) contests the relief sought in the motion or
33-21 application;
33-22 (2) requests to be present at the hearing; or
33-23 (3) requests oral argument on the person's exceptions
33-24 to the motion or application.
33-25 (g) The burden of proof at a hearing on a motion or
33-26 application that is being considered by the court on submission is
33-27 on the party who is seeking relief under the motion or application.
34-1 (h) The court may consider a person's failure to file a
34-2 response to a motion or application that may be considered on
34-3 submission as a representation that the person does not oppose the
34-4 motion or application.
34-5 (i) A person's request for oral argument is not a response
34-6 to a motion or application under this section.
34-7 (j) The court, on its own motion, may order oral argument on
34-8 a motion or application that may be considered by submission.
34-9 Sec. 645. GUARDIANS AD LITEM. (a) The judge may appoint a
34-10 guardian ad litem to represent the interests of an incapacitated
34-11 person in a guardianship proceeding.
34-12 (b) A guardian ad litem is entitled to reasonable
34-13 compensation for services in the amount set by the court to be
34-14 taxed as costs in the proceeding.
34-15 (c) A guardian ad litem is an officer of the court. The
34-16 guardian ad litem shall protect the incapacitated person in a
34-17 manner that will enable the court to determine what action will be
34-18 in the best interests of the incapacitated person.
34-19 (d) If a guardian ad litem is appointed under Section 681(4)
34-20 of this code, the fees and expenses of the guardian ad litem are
34-21 costs of the litigation proceeding that made the appointment
34-22 necessary.
34-23 (e) In the interest of judicial economy, the court may
34-24 appoint as guardian ad litem under Section 681(4) of this code the
34-25 person who has been appointed attorney ad litem under Section 646
34-26 of this code or the person who is serving as an ad litem for the
34-27 benefit of the ward in any other proceeding.
35-1 Sec. 646. APPOINTMENT OF ATTORNEY AD LITEM AND INTERPRETER.
35-2 (a) In a proceeding under this chapter for the appointment of a
35-3 guardian for a person other than a missing person, the court shall
35-4 appoint an attorney ad litem to represent the interests of the
35-5 proposed ward. The attorney shall be supplied with copies of all
35-6 of the current records in the case and may have access to all of
35-7 the proposed ward's relevant medical, psychological, and
35-8 intellectual testing records.
35-9 (b) To be eligible for appointment as an attorney ad litem,
35-10 a person must be certified by the State Bar of Texas as having
35-11 successfully completed a course of study in guardianship law and
35-12 procedure sponsored by the state bar.
35-13 (c) For certification under Subsection (b) of this section,
35-14 the state bar may not require more than four hours of credit.
35-15 (d) A certificate issued under Subsection (b) of this
35-16 section expires on the second anniversary of the date the
35-17 certificate was issued. A person whose certificate has expired
35-18 must obtain a new certificate to be eligible for appointment as an
35-19 attorney ad litem. The applicant is not required to again complete
35-20 the course of study required by Subsection (b) of this section
35-21 unless the state bar determines that the course has changed
35-22 substantially since the person last completed the course.
35-23 (e) Subsections (b)-(d) of this section do not apply to a
35-24 person who served as attorney ad litem in a guardianship proceeding
35-25 before September 1, 1993.
35-26 (f) At the time of the appointment of the attorney ad litem,
35-27 the court shall also appoint a language interpreter or a sign
36-1 interpreter if necessary to ensure effective communication between
36-2 the proposed ward and the attorney.
36-3 Sec. 647. DUTIES OF ATTORNEY AD LITEM. (a) An attorney ad
36-4 litem appointed under Section 646 of this code to represent a
36-5 proposed ward shall, within a reasonable time before the hearing,
36-6 interview the proposed ward. To the greatest extent possible, the
36-7 attorney shall discuss with the proposed ward the law and facts of
36-8 the case, the proposed ward's legal options regarding disposition
36-9 of the case, and the grounds on which guardianship is sought.
36-10 (b) Before the hearing, the attorney shall review the
36-11 application for guardianship, certificates of current physical,
36-12 medical, and intellectual examinations, and all of the proposed
36-13 ward's relevant medical, psychological, and intellectual testing
36-14 records.
36-15 Sec. 648. COURT VISITOR PROGRAM. (a) Each statutory
36-16 probate court shall operate a court visitor program to assess the
36-17 conditions of wards and proposed wards. Another court that has
36-18 jurisdiction over a guardianship proceeding may operate a court
36-19 visitor program in accordance with the population needs and
36-20 financial abilities of the jurisdiction. A court that operates a
36-21 court visitor program shall use persons willing to serve without
36-22 compensation to the greatest extent possible.
36-23 (b) On request by any interested person, including a ward or
36-24 proposed ward, or on its own motion, and at any time before the
36-25 appointment of a guardian or during the pendency of a guardianship
36-26 of the person or estate, a court may appoint a court visitor to
36-27 evaluate the ward or proposed ward and provide a written report
37-1 that substantially complies with Subsection (c) of this section.
37-2 (c) A court visitor's report must include:
37-3 (1) a description of the nature and degree of capacity
37-4 and incapacity of the ward or proposed ward, including the medical
37-5 history of the ward or proposed ward, if reasonably available and
37-6 not waived by the court;
37-7 (2) a medical prognosis and a list of the treating
37-8 physicians of the ward or proposed ward, when appropriate;
37-9 (3) a description of the living conditions and
37-10 circumstances of the ward or proposed ward;
37-11 (4) a description of the social, intellectual,
37-12 physical, and educational condition of the ward or proposed ward;
37-13 (5) a statement that the court visitor has personally
37-14 visited or observed the ward or proposed ward;
37-15 (6) a statement of the date of the most recent visit
37-16 by the guardian, if one has been appointed;
37-17 (7) a recommendation as to any modifications needed in
37-18 the guardianship or proposed guardianship, including removal or
37-19 denial of the guardianship; and
37-20 (8) any other information required by the court.
37-21 (d) The court visitor shall file the report not later than
37-22 the 14th day after the date of the evaluation conducted by the
37-23 court visitor, and the court visitor making the report must swear,
37-24 under penalty of perjury, to its accuracy to the best of the court
37-25 visitor's knowledge and belief.
37-26 (e) A court visitor who has not expressed a willingness to
37-27 serve without compensation is entitled to reasonable compensation
38-1 for services in an amount set by the court and to be taxed as costs
38-2 in the proceeding.
38-3 Sec. 649. EVIDENCE. In a guardianship proceeding, the rules
38-4 relating to witnesses and evidence that govern in the district
38-5 court apply as far as practicable. If there is no opposing party
38-6 or attorney of record on whom to serve notice and copies of
38-7 interrogatories, service may be had by posting notice of the
38-8 intention to take depositions for a period of 10 days as provided
38-9 by this chapter in the provisions governing a posting of notice.
38-10 When notice by posting under this section is filed with the clerk,
38-11 a copy of the interrogatories shall also be filed. At the
38-12 expiration of the 10-day period, commission may issue for taking
38-13 the depositions and the judge may file cross-interrogatories if no
38-14 person appears.
38-15 Sec. 650. DECREES AND SIGNING OF MINUTES. A decision,
38-16 order, decree, or judgment of the court in a guardianship matter
38-17 must be rendered in open court, except in a case in which it is
38-18 otherwise expressly provided. The judge shall approve and sign the
38-19 guardianship minutes on the first day of each month. If the first
38-20 day of the month falls on a Saturday, Sunday, or legal holiday, the
38-21 judge's approval shall be entered on the preceding or succeeding
38-22 day.
38-23 Sec. 651. ENFORCEMENT OF ORDERS. The judge may enforce
38-24 obedience to an order entered against a guardian by attachment and
38-25 imprisonment. An imprisonment of a guardian may not exceed three
38-26 days for any one offense, unless expressly provided otherwise in
38-27 this chapter.
39-1 SUBPART F. POST-TRIAL MATTERS
39-2 Sec. 653. EXECUTION. An execution in a guardianship matter
39-3 shall be directed "To any sheriff or any constable within the State
39-4 of Texas," made returnable in 60 days, and attested and signed by
39-5 the clerk officially under the seal of the court. A proceeding
39-6 under an execution in a guardianship matter is governed so far as
39-7 applicable by the laws regulating a proceeding under an execution
39-8 issued from the district court. An execution directed to the
39-9 sheriff or a constable of a specific county in this state may not
39-10 be held defective if the execution was properly executed within the
39-11 county by the officer to whom the direction for execution was
39-12 given.
39-13 Sec. 654. ATTACHMENT FOR PROPERTY. When a complaint in
39-14 writing and under oath that the guardian is about to remove the
39-15 estate or any part of the estate beyond the limits of the state is
39-16 made to the judge by a person interested in the estate of a minor
39-17 or other incapacitated person, the judge may order a writ to issue,
39-18 directed "To any sheriff or any constable within the State of
39-19 Texas," commanding the sheriff or constable to seize the estate or
39-20 any part of the estate and to hold the estate subject to further
39-21 court order. The judge may not issue a writ unless the complainant
39-22 gives a bond, in the sum the judge requires, payable to the
39-23 guardian of the estate and conditioned on payment of all damages
39-24 and costs that shall be recovered for a wrongful suit out of the
39-25 writ. A writ of attachment directed to the sheriff or a constable
39-26 of a specific county in this state is not defective if the writ was
39-27 properly executed within the county by the officer to whom the
40-1 direction to seize the estate was given.
40-2 Sec. 655. GUARDIAN TO SERVE PENDING APPEAL OF APPOINTMENT.
40-3 Pending an appeal from an order or judgment appointing a guardian,
40-4 an appointee shall continue to act as guardian and shall continue
40-5 the prosecution of a pending suit in favor of the guardianship.
40-6 Sec. 656. APPEAL BOND OF GUARDIAN. When a guardian appeals,
40-7 a bond is not required, unless the appeal personally concerns the
40-8 guardian, in which case the guardian must give the bond.
40-9 Sec. 657. BILL OF REVIEW. A person interested, including a
40-10 ward, by bill of review filed in the court in which a guardianship
40-11 proceeding took place, may have a decision, order, or judgment
40-12 rendered by the court, revised and corrected if an error is shown
40-13 on the decision, order, or judgment. A process or action under the
40-14 decision, order, or judgment is not stayed except by writ of
40-15 injunction. A bill of review may not be filed after two years have
40-16 elapsed from the date of the decision, order, or judgment. A
40-17 person with a disability has two years after the removal of the
40-18 person's respective disability to apply for a bill of review.
40-19 SUBPART G. LETTERS OF GUARDIANSHIP
40-20 Sec. 659. ISSUANCE OF LETTERS OF GUARDIANSHIP. (a) When a
40-21 person who is appointed guardian has qualified by taking the oath
40-22 and giving any bond required by law, the clerk shall issue to the
40-23 guardian a certificate under seal, stating the fact of the
40-24 appointment, of the qualification, and the date of the appointment
40-25 and qualification. The certificate issued by the clerk constitutes
40-26 letters of guardianship. The order of the court appointing the
40-27 guardian is effective on the issuance of letters of guardianship.
41-1 The order is evidence of the authority of the guardian to act
41-2 within the scope of the powers and duties set forth in the order.
41-3 (b) Letters of guardianship expire one year and 120 days
41-4 after the date of issuance unless renewed.
41-5 (c) The clerk shall renew letters of guardianship on the
41-6 receipt and approval by the court of the guardian's annual
41-7 accounting. If the guardian's annual accounting is disapproved,
41-8 the clerk may not issue further letters of guardianship to that
41-9 guardian relating to the ward or the ward's estate unless ordered
41-10 by the court.
41-11 Sec. 660. LETTERS OR CERTIFICATE MADE EVIDENCE. Letters of
41-12 guardianship or a certificate under seal of the clerk of the court
41-13 that granted the letters issued under Section 659 of this code is
41-14 sufficient evidence of the appointment and qualification of the
41-15 guardian and of the date of qualification.
41-16 Sec. 661. ISSUANCE OF NEW LETTERS. When letters of
41-17 guardianship have been destroyed or lost, the clerk shall issue new
41-18 letters that have the same force and effect as the original
41-19 letters. The clerk shall also issue any number of letters on
41-20 request of the person who holds the letters.
41-21 Sec. 662. RIGHTS OF THIRD PERSONS DEALING WITH GUARDIAN.
41-22 When a guardian who has qualified performs any act as guardian that
41-23 is in conformity with the guardian's authority and the law, the
41-24 guardian's act continues to be valid for all intents and purposes
41-25 in regard to the rights of an innocent purchaser of the property of
41-26 the guardianship estate who purchased the property from the
41-27 guardian for a valuable consideration, in good faith, and without
42-1 notice of any illegality in the title to the property, even if the
42-2 guardian's act or the authority under which the act was performed
42-3 may later be set aside, annulled, or declared invalid.
42-4 Sec. 663. VALIDATION OF CERTAIN LETTERS OF GUARDIANSHIP.
42-5 All presently existing letters of guardianship issued to a
42-6 nonresident guardian, with or without the procedure provided in
42-7 this subpart, in whole or in part, and with or without a notice or
42-8 citation required of resident guardians, are validated as of each
42-9 letter's date, insofar as the absence of the procedure, notice, or
42-10 citations is concerned. An otherwise valid conveyance, mineral
42-11 lease, or other act of a nonresident guardian qualified and acting
42-12 in connection with the letters of guardianship under supporting
42-13 orders of a county or probate court of this state are validated.
42-14 This section does not apply to any letters, conveyance, lease, or
42-15 other act of a nonresident guardian under this section if the
42-16 absence of the procedure, notice, or citation involving the
42-17 letters, conveyance, lease, or other act of the nonresident
42-18 guardian is an issue in a lawsuit pending in this state on
42-19 September 1, 1993.
42-20 SUBPART H. COMPENSATION, EXPENSES, AND COURT COSTS
42-21 Sec. 665. COMPENSATION OF GUARDIAN. (a) The court may
42-22 authorize compensation for a guardian serving as guardian of the
42-23 person alone from available funds of the ward's estate. The court
42-24 shall set the compensation in an amount not exceeding five percent
42-25 of the ward's income. In determining whether to authorize
42-26 compensation for a guardian under this section, the court shall
42-27 consider the ward's monthly income from all sources and whether the
43-1 ward receives medical assistance under Chapter 32, Human Resources
43-2 Code.
43-3 (b) The guardian of the estate is entitled to a fee of five
43-4 percent of the gross income of the ward's estate and five percent
43-5 of all money paid out of the estate on a court finding that the
43-6 guardian has taken care of and managed the estate in compliance
43-7 with the standards of this chapter. In this section, the term
43-8 "money paid out" does not include any money loaned, invested, or
43-9 paid over on the settlement of the guardianship. If the fee is an
43-10 unreasonably low amount, the court may authorize reasonable
43-11 compensation to a guardian for services as guardian of the estate.
43-12 The court, on application of an interested person or on its own
43-13 motion, may deny a fee authorized under this section in whole, or
43-14 in part, if:
43-15 (1) the court finds that the guardian has not
43-16 adequately performed the duties required of the guardian under this
43-17 chapter; or
43-18 (2) the guardian has been removed for cause.
43-19 Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be
43-20 reimbursed from the guardianship estate for all necessary and
43-21 reasonable expenses incurred in performing any duty as a guardian.
43-22 Sec. 667. EXPENSE ACCOUNT. All expense charges shall be:
43-23 (1) in writing, showing specifically each item of
43-24 expense and the date of the expense;
43-25 (2) verified by affidavit of the guardian;
43-26 (3) filed with the clerk and entered on the claim
43-27 docket; and
44-1 (4) acted on by the court in the same manner as other
44-2 claims against the guardianship estate.
44-3 Sec. 668. COSTS ADJUDGED AGAINST GUARDIAN. When costs are
44-4 incurred because a guardian neglects to perform a required duty or
44-5 if a guardian is removed for cause, the guardian and the sureties
44-6 on the guardian's bond are liable for:
44-7 (1) costs of removal and other additional costs
44-8 incurred that are not authorized expenditures under this chapter;
44-9 and
44-10 (2) reasonable attorney's fees incurred in removing
44-11 the guardian or in obtaining compliance regarding any statutory
44-12 duty the guardian has neglected.
44-13 Sec. 669. COSTS AGAINST GUARDIANSHIP. In a guardianship
44-14 matter, the cost of the proceeding, including the cost of the
44-15 guardian ad litem or court visitor, shall be paid out of the
44-16 guardianship estate, or, if the estate is insufficient to pay for
44-17 the cost of the proceeding, the cost of the proceeding shall be
44-18 paid out of the county treasury, and the judgment of the court
44-19 shall be issued accordingly.
44-20 SUBPART I. DUTY AND RESPONSIBILITY OF COURT
44-21 Sec. 671. JUDGE'S DUTY. (a) The court shall use reasonable
44-22 diligence to determine whether a guardian is performing all of the
44-23 duties required of the guardian that pertain to the guardian's
44-24 ward.
44-25 (b) The judge, at least annually, shall examine the
44-26 well-being of each ward of the court and the solvency of the bonds
44-27 of the guardians of the estates.
45-1 (c) If after examining the solvency of a guardian's bond
45-2 under this section a judge determines that the guardian's bond is
45-3 not sufficient to protect the ward or the ward's estate, the judge
45-4 shall require the guardian to execute a new bond.
45-5 (d) The judge shall notify the guardian and the sureties on
45-6 the bond as provided by law. If damage or loss results to a
45-7 guardianship or ward because of gross neglect of the judge to use
45-8 reasonable diligence in the performance of the judge's duty under
45-9 this section, the judge shall be liable on the judge's bond to
45-10 those damaged by the judge's neglect.
45-11 Sec. 672. ANNUAL DETERMINATION AS TO WHETHER GUARDIANSHIP
45-12 SHOULD BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in
45-13 which a guardianship proceeding is pending shall review annually a
45-14 guardianship that does not give a guardian full authority over an
45-15 incapacitated person to determine whether the guardianship should
45-16 be continued, modified, or terminated.
45-17 (b) In reviewing a guardianship as provided by Subsection
45-18 (a) of this section, a statutory probate court shall:
45-19 (1) review a report prepared by a court visitor under
45-20 Section 648 of this code; or
45-21 (2) conduct a hearing if necessary.
45-22 (c) In reviewing a guardianship as provided by Subsection
45-23 (a) of this section, a court that is not a statutory probate court
45-24 may use any appropriate method determined by the court according to
45-25 the court's caseload and the resources available to the court.
45-26 (d) A determination under this section must be in writing
45-27 and filed with the clerk.
46-1 SUBPART J. LIABILITY OF GUARDIAN FOR CONDUCT OF WARD
46-2 Sec. 673. LIABILITY. A person is not liable to a third
46-3 person solely because the person has been appointed guardian of a
46-4 ward under this chapter.
46-5 PART 3. APPOINTMENT AND
46-6 QUALIFICATION OF
46-7 GUARDIANS
46-8 SUBPART A. APPOINTMENT
46-9 Sec. 675. RIGHTS AND POWERS RETAINED BY WARD. An
46-10 incapacitated person for whom a guardian is appointed retains all
46-11 legal and civil rights and powers except those designated by court
46-12 order as legal disabilities by virtue of having been specifically
46-13 granted to the guardian.
46-14 Sec. 676. GUARDIANS OF MINORS. (a) Except as provided by
46-15 Section 680 of this code, the selection of a guardian for a minor
46-16 is governed by this section.
46-17 (b) If the parents live together, both parents are the
46-18 natural guardians of the person of the minor children by the
46-19 marriage, and one of the parents is entitled to be appointed
46-20 guardian of the children's estates. If the parents disagree as to
46-21 which parent should be appointed, the court shall make the
46-22 appointment on the basis of which parent is better qualified to
46-23 serve in that capacity. If one parent is dead, the survivor is the
46-24 natural guardian of the person of the minor children and is
46-25 entitled to be appointed guardian of their estates. The rights of
46-26 parents who do not live together are equal, and the guardianship of
46-27 their minor children shall be assigned to one or the other,
47-1 considering only the best interests of the children.
47-2 (c) In appointing a guardian for a minor orphan:
47-3 (1) if the last surviving parent did not appoint a
47-4 guardian, the nearest ascendant in the direct line of the minor is
47-5 entitled to guardianship of both the person and the estate of the
47-6 minor;
47-7 (2) if more than one ascendant exists in the same
47-8 degree in the direct line, one ascendant shall be appointed,
47-9 according to circumstances and considering the best interests of
47-10 the minor;
47-11 (3) if the minor has no ascendant in the direct line,
47-12 the nearest of kin shall be appointed, and if there are two or more
47-13 persons in the same degree of kinship, one shall be appointed,
47-14 according to circumstances and considering the best interests of
47-15 the minor; and
47-16 (4) if no relative of the minor is eligible to be
47-17 guardian, or if no eligible person applies to be guardian, the
47-18 court shall appoint a qualified person as guardian.
47-19 (d) The surviving parent of a minor may by will or written
47-20 declaration appoint any eligible person to be guardian of the
47-21 person of the parent's minor children after the death of the
47-22 parent. On compliance with this code, an eligible person is also
47-23 entitled to be appointed guardian of the children's estates after
47-24 the death of the parent.
47-25 Sec. 677. GUARDIANS OF PERSONS OTHER THAN MINORS. The court
47-26 shall appoint a guardian for a person other than a minor according
47-27 to the circumstances and considering the best interests of the
48-1 ward. If the court finds that two or more eligible persons are
48-2 equally entitled to be appointed guardian:
48-3 (1) the ward's spouse is entitled to the guardianship
48-4 in preference to any other person if the spouse is one of the
48-5 eligible persons;
48-6 (2) the eligible person nearest of kin to the ward is
48-7 entitled to the guardianship if the ward's spouse is not one of the
48-8 eligible persons; or
48-9 (3) the court shall appoint the eligible person who is
48-10 best qualified to serve as guardian if:
48-11 (A) the persons entitled to serve under
48-12 Subdivisions (1) and (2) of this section refuse to serve;
48-13 (B) two or more persons entitled to serve under
48-14 Subdivision (2) of this section are related in the same degree of
48-15 kinship to the ward; or
48-16 (C) neither the ward's spouse or any person
48-17 related to the ward is an eligible person.
48-18 Sec. 678. PRESUMPTION CONCERNING BEST INTEREST. It is
48-19 presumed not to be in the best interests of a ward to appoint a
48-20 person as guardian of the ward if the person has been finally
48-21 convicted of any sexual offense, sexual assault, aggravated
48-22 assault, aggravated sexual assault, injury to a child, abandoning
48-23 or endangering a child, or incest.
48-24 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES. (a)
48-25 A person other than an incapacitated person may designate by a
48-26 written declaration persons to serve as guardian of the person of
48-27 the declarant or the estate of the declarant if the declarant
49-1 becomes incapacitated. The declaration must be attested to by at
49-2 least two credible witnesses 14 years of age or older who are not
49-3 named as guardian or alternate guardian in the declaration.
49-4 (b) A declarant may, in the declaration, disqualify named
49-5 persons from serving as guardian of the declarant's person or
49-6 estate, and the persons named may not be appointed guardian under
49-7 any circumstances.
49-8 (c) The declaration must have attached a self-proving
49-9 affidavit signed by the declarant and the witnesses attesting to
49-10 the competence of the declarant and the execution of the
49-11 declaration. A properly executed and witnessed declaration and
49-12 affidavit are prima facie evidence that the declarant was competent
49-13 at the time the declarant executed the declaration and that the
49-14 guardian named in the declaration would serve the best interests of
49-15 the ward.
49-16 (d) The declaration and affidavit may be filed with the
49-17 court at any time after the application for appointment of a
49-18 guardian is filed and before a guardian is appointed. Unless the
49-19 court finds that the person designated in the declaration to serve
49-20 as guardian is disqualified or would not serve the best interests
49-21 of the ward, the court shall appoint the person as guardian in
49-22 preference to those otherwise entitled to serve as guardian under
49-23 this code. If the designated guardian does not qualify, is dead,
49-24 refuses to serve, resigns, or dies after being appointed guardian,
49-25 or is otherwise unavailable to serve as guardian, the court shall
49-26 appoint the next eligible designated alternate guardian named in
49-27 the declaration. If the guardian and all alternate guardians do
50-1 not qualify, are dead, refuse to serve, or later die or resign, the
50-2 court shall appoint another person to serve as otherwise provided
50-3 by this code.
50-4 (e) The declarant may revoke a declaration in any manner
50-5 provided for the revocation of a will under Section 63 of this
50-6 code, including the subsequent reexecution of the declaration in
50-7 the manner required for the original declaration.
50-8 (f) If a declarant designates the declarant's spouse to
50-9 serve as guardian under this section, and the declarant is
50-10 subsequently divorced from that spouse before a guardian is
50-11 appointed, the provision of the declaration designating the spouse
50-12 has no effect.
50-13 (g) A declaration and affidavit may be in any form adequate
50-14 to clearly indicate the declarant's intention to designate a
50-15 guardian. The following forms may, but need not, be used:
50-16 DECLARATION OF GUARDIAN IN THE EVENT OF
50-17 LATER INCAPACITY OR NEED OF GUARDIAN
50-18 I, _____________, make this Declaration of Guardian, to
50-19 operate if the need for a guardian for me later arises.
50-20 1. I designate ____________ to serve as guardian of my
50-21 person, ____________ as first alternate guardian of my person,
50-22 ________________ as second alternate guardian of my person, and
50-23 ____________ as third alternate guardian of my person.
50-24 2. I designate ____________ to serve as guardian of my
50-25 estate, ____________ as first alternate guardian of my estate,
50-26 ____________ as second alternate guardian of my estate, and
50-27 ____________ as third alternate guardian of my estate.
51-1 3. If any guardian or alternate guardian dies, does not
51-2 qualify, or resigns, the next named alternate guardian becomes my
51-3 guardian.
51-4 4. I expressly disqualify the following persons from serving
51-5 as guardian of my person: ____________, ____________, and
51-6 ____________.
51-7 5. I expressly disqualify the following persons from serving
51-8 as guardian of my estate: ____________, ____________, and
51-9 ____________.
51-10 Signed this ____ day of __________, 19__.
51-11 ___________________
51-12 Declarant
51-13 ___________________ ___________________
51-14 Witness Witness
51-15 SELF-PROVING AFFIDAVIT
51-16 Before me, the undersigned authority, on this date personally
51-17 appeared the declarant, and ____________ and ____________ as
51-18 witnesses, and all being duly sworn, the declarant said that the
51-19 above instrument was his or her Declaration of Guardian and that
51-20 the declarant had made and executed it for the purposes expressed
51-21 in the declaration. The witnesses declared to me that they are
51-22 each 14 years of age or older, that they saw the declarant sign the
51-23 declaration, that they signed the declaration as witnesses, and
51-24 that the declarant appeared to them to be of sound mind.
51-25 ___________________
51-26 Declarant
51-27 ___________________ ____________________
52-1 Affiant Affiant
52-2 Subscribed and sworn to before me by the above named
52-3 declarant and affiants on this ____ day of __________, 19__.
52-4 ________________________
52-5 Notary Public in and for
52-6 the State of Texas
52-7 My Commission expires:
52-8 ________________________
52-9 Sec. 680. SELECTION OF GUARDIAN BY MINOR. (a) When an
52-10 application is filed for the guardianship of the person or estate,
52-11 or both, of a minor at least 14 years of age, the minor, by writing
52-12 filed with the clerk, may choose the guardian if the court approves
52-13 the choice and finds that the choice is in the best interest of the
52-14 minor.
52-15 (b) A minor at least 14 years of age may select another
52-16 guardian of either the minor's person or estate, or both, if the
52-17 minor has a guardian appointed by the court or the minor has a
52-18 guardian appointed by will or written declaration of the parent of
52-19 the minor and that guardian dies, resigns, or is removed from
52-20 guardianship. If the court is satisfied that the person selected
52-21 is suitable and competent and that the appointment of the person is
52-22 in the best interest of the minor, it shall make the appointment
52-23 and revoke the letters of guardianship of the former guardian. The
52-24 minor shall make the selection by filing an application in open
52-25 court in person or by attorney.
52-26 Sec. 681. PERSONS INELIGIBLE TO BE GUARDIANS. A person may
52-27 not be appointed guardian if the person is:
53-1 (1) a minor;
53-2 (2) a person whose conduct is notoriously bad;
53-3 (3) an incapacitated person;
53-4 (4) a person who is a party or whose parent is a party
53-5 to a lawsuit concerning or affecting the welfare of the proposed
53-6 ward, unless the court:
53-7 (A) determines that the lawsuit claim of the
53-8 person who has applied to be appointed guardian is not in conflict
53-9 with the lawsuit claim of the proposed ward; or
53-10 (B) appoints a guardian ad litem to represent
53-11 the interests of the proposed ward throughout the litigation of the
53-12 ward's lawsuit claim;
53-13 (5) a person indebted to the proposed ward unless the
53-14 person pays the debt before appointment;
53-15 (6) a person asserting a claim adverse to the proposed
53-16 ward or the proposed ward's property, real or personal;
53-17 (7) a person who, because of inexperience, lack of
53-18 education, or other good reason, is incapable of properly and
53-19 prudently managing and controlling the ward or the ward's estate;
53-20 (8) a person, institution, or corporation found
53-21 unsuitable by the court;
53-22 (9) a person disqualified in a declaration made under
53-23 Section 679 of this code; or
53-24 (10) a nonresident person who has not filed with the
53-25 court the name of a resident agent to accept service of process in
53-26 all actions or proceedings relating to the guardianship.
53-27 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
54-1 proceeding for the appointment of a guardian by filing a written
54-2 application in a court having jurisdiction and venue. The
54-3 application must be sworn to by the applicant and state:
54-4 (1) the name, sex, date of birth, and address of the
54-5 proposed ward;
54-6 (2) the name, relationship, and address of the person
54-7 the applicant desires to have appointed as guardian;
54-8 (3) the social security number of the proposed ward
54-9 and of the person the applicant desires to have appointed as
54-10 guardian;
54-11 (4) whether guardianship of the person or estate, or
54-12 both, is sought;
54-13 (5) the nature and degree of the alleged incapacity,
54-14 the specific areas of protection and assistance requested, and the
54-15 limitation of rights requested to be included in the court's order
54-16 of appointment;
54-17 (6) the facts requiring that a guardian be appointed
54-18 and the interest of the applicant in the appointment;
54-19 (7) the nature and description of any guardianship of
54-20 any kind existing for the proposed ward in this or any other state;
54-21 (8) the name and address of any person or institution
54-22 having the care and custody of the proposed ward;
54-23 (9) the approximate value and description of the
54-24 proposed ward's property, including any compensation, pension,
54-25 insurance, or allowance to which the proposed ward may be entitled;
54-26 (10) the requested term, if known, of the
54-27 guardianship;
55-1 (11) the name and address of any person whom the
55-2 applicant knows to hold a power of attorney signed by the proposed
55-3 ward and a description of the type of power of attorney;
55-4 (12) if the proposed ward is a minor, the names of the
55-5 parents and next of kin of the proposed ward and whether either or
55-6 both of the parents are deceased;
55-7 (13) if the proposed ward is a minor, whether the
55-8 minor was the subject of a legal or conservatorship proceeding
55-9 within the preceding two-year period and, if so, the court
55-10 involved, the nature of the proceeding, and the final disposition,
55-11 if any, of the proceeding;
55-12 (14) if the proposed ward is 60 years of age or older,
55-13 the names and addresses, to the best of the applicant's knowledge,
55-14 of the proposed ward's spouse, siblings, and children, or, if there
55-15 is no spouse, sibling, or child, the names and addresses of the
55-16 proposed ward's next of kin;
55-17 (15) if the proposed ward is a missing person:
55-18 (A) the last known residence of the missing
55-19 person;
55-20 (B) the name of the executive department of the
55-21 United States reporting the proposed ward as a missing person, the
55-22 date of the report, and the last known whereabouts of the missing
55-23 person; and
55-24 (C) the names and addresses of the missing
55-25 person's spouse, children, and parents, or, if there is no spouse,
55-26 child, or parent, the names and addresses of the missing person's
55-27 next of kin;
56-1 (16) facts showing that the court has venue over the
56-2 proceeding; and
56-3 (17) if applicable, that the person whom the applicant
56-4 desires to have appointed as a guardian is a private professional
56-5 guardian who has complied with the requirements of Section 697 of
56-6 this code.
56-7 Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
56-8 If a court has probable cause to believe that a person domiciled or
56-9 found in the county in which the court is located is an
56-10 incapacitated person, and the person does not have a guardian in
56-11 this state, the court shall appoint a guardian ad litem or court
56-12 investigator to investigate and file an application for the
56-13 appointment of a guardian of the person or estate, or both, of the
56-14 person believed to be incapacitated.
56-15 Sec. 684. FINDINGS REQUIRED. (a) Before appointing a
56-16 guardian, the court must find by clear and convincing evidence
56-17 that:
56-18 (1) the proposed ward is an incapacitated person;
56-19 (2) the court has venue of the case;
56-20 (3) the person to be appointed guardian is eligible to
56-21 act as guardian and is entitled to appointment, or, if no eligible
56-22 person entitled to appointment applies, the person appointed is a
56-23 proper person to act as guardian;
56-24 (4) the rights of persons or property will be
56-25 protected by the appointment of a guardian;
56-26 (5) if a guardian is appointed for a minor, the
56-27 guardianship is not created for the primary purpose of enabling the
57-1 minor to establish residency for enrollment in a school or school
57-2 district for which the minor is not otherwise eligible for
57-3 enrollment; and
57-4 (6) if the guardian is appointed for a missing person,
57-5 the person was reported missing by an executive department of the
57-6 United States at least six months earlier than the date of the
57-7 filing of the application and currently is missing.
57-8 (b) The court may not grant an application to create a
57-9 guardianship unless the applicant proves each element required by
57-10 this code. A determination of incapacity of an adult proposed
57-11 ward, other than a missing person or a person who must have a
57-12 guardian appointed to receive funds due the person from any
57-13 governmental source, must be evidenced by recurring acts or
57-14 occurrences within the preceding six-month period and not by
57-15 isolated instances of negligence or bad judgment.
57-16 (c) A court may not appoint a guardian of the estate of a
57-17 minor when a payment of claims is made under Section 887 of this
57-18 code.
57-19 (d) A certificate of the executive head or a representative
57-20 of the bureau, department, or agency of the government, to the
57-21 effect that the appointment of a guardian is a condition precedent
57-22 to the payment of any funds due the proposed ward from that
57-23 governmental entity, is prima facie evidence of the necessity for
57-24 the appointment of a guardian.
57-25 Sec. 685. HEARING FOR APPOINTMENT OF GUARDIAN; RIGHT TO JURY
57-26 TRIAL. (a) A proposed ward other than a missing person must be
57-27 present at a hearing to appoint a guardian unless the court, on the
58-1 record, determines that a personal appearance is not necessary.
58-2 The court may close the hearing if the proposed ward or the
58-3 proposed ward's counsel requests a closed hearing.
58-4 (b) The proposed ward is entitled, on request, to a jury
58-5 trial.
58-6 (c) At the hearing, the court shall:
58-7 (1) inquire into the ability of any allegedly
58-8 incapacitated adult person to feed, clothe, and shelter himself or
58-9 herself, to care for the individual's own physical health, and to
58-10 manage the individual's property or financial affairs;
58-11 (2) ascertain the age of any proposed ward who is a
58-12 minor;
58-13 (3) inquire into the governmental reports for any
58-14 missing person or person who must have a guardian appointed to
58-15 receive funds due the person from any governmental source; and
58-16 (4) inquire into the qualifications, abilities, and
58-17 capabilities of the person seeking to be appointed guardian.
58-18 Sec. 686. USE OF RECORDS IN HEARING TO APPOINT GUARDIAN.
58-19 (a) Before a hearing may be held for the appointment of a
58-20 guardian, current and relevant medical, psychological, and
58-21 intellectual testing records of the proposed ward must be provided
58-22 to the attorney ad litem appointed to represent the proposed ward
58-23 unless:
58-24 (1) the proposed ward is a minor, a missing person, or
58-25 a person who must have a guardian appointed to receive funds due
58-26 the person from any governmental source; or
58-27 (2) the court makes a finding on the record that no
59-1 current or relevant records exist and examining the proposed ward
59-2 for the purpose of creating the records is impractical.
59-3 (b) Current medical, psychological, and intellectual testing
59-4 records are a sufficient basis for a determination of guardianship.
59-5 (c) The findings and recommendations contained in the
59-6 medical, psychological, and intellectual testing records are not
59-7 binding on the court.
59-8 Sec. 687. EXAMINATION AND REPORTS. (a) The court may not
59-9 grant an application to create a guardianship for an incapacitated
59-10 person unless the applicant presents to the court a written letter
59-11 or certificate from a physician licensed in this state that:
59-12 (1) states that, in the opinion of the physician, the
59-13 person for whom the appointment of a guardian is sought is
59-14 incapacitated; and
59-15 (2) generally describes the extent of the incapacity.
59-16 (b) If the court determines it is necessary, the court may
59-17 appoint the necessary physicians to examine the proposed ward. A
59-18 physician who examines the proposed ward shall make available to an
59-19 attorney ad litem appointed to represent the proposed ward, for
59-20 inspection, a report that:
59-21 (1) describes the nature and degree of incapacity,
59-22 including the medical history if reasonably available;
59-23 (2) provides a medical prognosis specifying the
59-24 estimated severity of the incapacity;
59-25 (3) states how or in what manner the proposed ward's
59-26 ability to make or communicate responsible decisions concerning
59-27 himself or herself is affected by the person's physical or mental
60-1 health;
60-2 (4) states whether any current medication affects the
60-3 demeanor of the proposed ward or the proposed ward's ability to
60-4 participate fully in a court proceeding;
60-5 (5) describes the precise physical and mental
60-6 conditions underlying a diagnosis of senility, if applicable; and
60-7 (6) includes any other information required by the
60-8 court.
60-9 (c) If the basis of the proposed ward's alleged incapacity
60-10 is mental retardation, the proposed ward shall be examined by a
60-11 physician or psychologist licensed in this state or certified by
60-12 the Texas Department of Mental Health and Mental Retardation to
60-13 perform the examination, unless there is written documentation
60-14 filed with the court that shows the proposed ward has been examined
60-15 according to the rules adopted by the department not earlier than
60-16 six months before the date of a hearing to appoint a guardian for
60-17 the proposed ward. The physician or psychologist shall conduct the
60-18 examination according to the rules adopted by the department and
60-19 shall submit written findings and recommendations to the court.
60-20 Sec. 688. PAYMENT FOR PROFESSIONAL SERVICES. The court
60-21 shall order the payment of a fee set by the court as compensation
60-22 to the attorneys, mental health professionals, and interpreters
60-23 appointed under Sections 646 and 687 of this code, as applicable,
60-24 to be taxed as costs in the case. If after examining the proposed
60-25 ward's assets the court determines the proposed ward is unable to
60-26 pay for services provided by an attorney, a mental health
60-27 professional, or an interpreter appointed under Sections 646 and
61-1 687 of this code, as applicable, the county is responsible for the
61-2 cost of those services.
61-3 Sec. 688A. COMPENSATION OF CERTAIN ATTORNEYS. (a) A court
61-4 that creates a guardianship for a ward under this chapter, on
61-5 request of a person who filed an application to be appointed
61-6 guardian of the proposed ward, may authorize compensation of an
61-7 attorney who represents the person at the application hearing from
61-8 available funds of the ward's estate regardless of whether that
61-9 person is appointed the ward's guardian.
61-10 (b) The court may not authorize compensation under this
61-11 section unless the court finds that the attorney acted in good
61-12 faith and for just cause in the attorney's representation of the
61-13 person who filed the application.
61-14 Sec. 689. PREFERENCE OF WARD. Before appointing a guardian,
61-15 the court shall make a reasonable effort to consider the
61-16 incapacitated person's preference of the person to be appointed
61-17 guardian and, to the extent not inconsistent with other provisions
61-18 of this chapter, shall give due consideration to the preference
61-19 indicated by the incapacitated person.
61-20 Sec. 690. ONLY ONE PERSON APPOINTED GUARDIAN. Only one
61-21 person may be appointed as guardian of the person or estate, but
61-22 one person may be appointed guardian of the person and another of
61-23 the estate, if it is to the advantage of the ward. Nothing in this
61-24 section prohibits the joint appointment of a husband and wife, or
61-25 of coguardians appointed under the laws of a jurisdiction other
61-26 than this state.
61-27 Sec. 691. AGENCY AS LAST RESORT. Except as a last resort,
62-1 the court may not appoint as guardian the Texas Department of
62-2 Mental Health and Mental Retardation, the Texas Department of Human
62-3 Services, a community mental health and mental retardation center,
62-4 or any other agency, public or private, that is directly providing
62-5 services to the incapacitated person.
62-6 Sec. 692. ORDER APPOINTING GUARDIAN. The order of the court
62-7 appointing a guardian must specify:
62-8 (1) the name of the person appointed;
62-9 (2) the name of the ward;
62-10 (3) whether the guardian is of the person or the
62-11 estate, or of both, of the ward;
62-12 (4) the amount of any bond required;
62-13 (5) if it is a guardianship of the estate and the
62-14 court deems an appraisal is necessary, one or more but not more
62-15 than three disinterested persons to appraise the estate and to
62-16 return the appraisement to the court; and
62-17 (6) that the clerk will issue letters of guardianship
62-18 to the person appointed when the person has qualified according to
62-19 law.
62-20 Sec. 693. ORDER OF COURT. (a) If it is found that an adult
62-21 person possesses the capacity to care for himself or herself and to
62-22 manage the individual's property as would a reasonably prudent
62-23 person, the court shall dismiss the application for guardianship.
62-24 (b) If it is found that the proposed ward is totally without
62-25 capacity as provided by this code to care for himself or herself
62-26 and to manage the individual's property, the court shall include
62-27 that determination as a finding of fact in its final order in the
63-1 proceeding, and the court may appoint a guardian of the
63-2 individual's person or estate, or both, with full authority over
63-3 the incapacitated person except as provided by law.
63-4 (c) If it is found that the person lacks the capacity to do
63-5 some, but not all, of the tasks necessary to care for himself or
63-6 herself or to manage the individual's property, the court may
63-7 appoint a guardian with limited powers and permit the individual to
63-8 care for himself or herself or to manage the individual's property
63-9 commensurate with the individual's ability.
63-10 (d) An order appointing a guardian must contain findings of
63-11 fact and specify:
63-12 (1) the information required by Section 692 of this
63-13 code;
63-14 (2) the specific powers, limitations, or duties of the
63-15 guardian with respect to the care of the person or the management
63-16 of the person's property by the guardian; and
63-17 (3) if necessary, the amount of funds from the corpus
63-18 of the person's estate the court will allow the guardian to expend
63-19 for the education and maintenance of the person under Section 776
63-20 of this code.
63-21 (e) An order appointing a guardian may not duplicate or
63-22 conflict with the powers and duties of any other guardian.
63-23 Sec. 694. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
63-24 otherwise discharged as provided by law, a guardian remains in
63-25 office until the estate is closed.
63-26 (b) The guardianship shall be settled and closed when the
63-27 incapacitated person:
64-1 (1) dies and, if the person was married, the person's
64-2 spouse qualifies as survivor in community;
64-3 (2) is found by the court to have full capacity to
64-4 care for himself or herself and to manage the person's property;
64-5 (3) is no longer a minor;
64-6 (4) returns to the United States, if the person was a
64-7 missing person and the court grants the motion of any interested
64-8 person to vacate the original order of guardianship; or
64-9 (5) no longer must have a guardian appointed to
64-10 receive funds due the person from any governmental source.
64-11 (c) An order appointing a guardian or a successor guardian
64-12 may specify a period of not more than one year during which a
64-13 petition for adjudication that the incapacitated person no longer
64-14 requires the guardianship may not be filed without special leave.
64-15 (d) Except as provided by Subsection (c) of this section, a
64-16 ward or any person interested in the ward's welfare may petition
64-17 the court for an order:
64-18 (1) finding that the ward no longer needs the
64-19 guardianship and ordering that the guardian resign or be removed;
64-20 (2) finding that the ward lacks the capacity to do
64-21 some or all of the tasks necessary to care for himself or herself
64-22 or to manage the ward's property and granting additional powers or
64-23 duties to the guardian with respect to the care of the ward or the
64-24 management of the ward's property by the guardian; or
64-25 (3) finding that the ward has regained the capacity to
64-26 do some, but not all, of the tasks necessary to care for himself or
64-27 herself or to manage the ward's property and:
65-1 (A) limiting the powers or duties of the
65-2 guardian with respect to the care of the ward or the management of
65-3 the ward's property by the guardian; and
65-4 (B) permitting the ward to care for himself or
65-5 herself or to manage the ward's property commensurate with the
65-6 ward's ability.
65-7 (e) A request for an order under this section may be made by
65-8 informal letter to the court. A person who knowingly interferes
65-9 with the transmission of the request to the court may be adjudged
65-10 guilty of contempt of court.
65-11 (f) If a nonresident guardian of a nonresident ward
65-12 qualifies as guardian under this chapter, the guardianship of any
65-13 resident guardian may be terminated.
65-14 Sec. 695. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) If a
65-15 guardian dies, resigns, or is removed, the court may, on
65-16 application and on service of notice as directed by the court,
65-17 appoint a successor guardian.
65-18 (b) A successor guardian has the powers and rights and is
65-19 subject to all of the duties of the preceding guardian.
65-20 Sec. 696. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
65-21 court may not appoint a private professional guardian to serve as a
65-22 guardian or permit a private professional guardian to continue to
65-23 serve as a guardian under this code if the private professional
65-24 guardian has not complied with the requirements of Section 697 of
65-25 this code.
65-26 Sec. 697. REGISTRATION OF PRIVATE PROFESSIONAL GUARDIANS.
65-27 (a) A private professional guardian must apply annually to the
66-1 clerk of the county having venue over the proceeding for the
66-2 appointment of a guardian for certification. The application must
66-3 include a sworn statement containing the following information
66-4 concerning a private professional guardian or a person who
66-5 represents or plans to represent the interests of a ward as a
66-6 guardian on behalf of the private professional guardian:
66-7 (1) educational background and professional
66-8 experience;
66-9 (2) three or more professional references;
66-10 (3) the names of all of the wards the private
66-11 professional guardian or person is or will be serving as a
66-12 guardian;
66-13 (4) the aggregate fair market value of the property of
66-14 all wards that is being or will be managed by the private
66-15 professional guardian or person;
66-16 (5) place of residence, business address, and business
66-17 telephone number; and
66-18 (6) whether the private professional guardian or
66-19 person has ever been removed as a guardian by the court or resigned
66-20 as a guardian in a particular case, and, if so, a description of
66-21 the circumstances causing the removal or resignation, and the style
66-22 of the suit, the docket number, and the court having jurisdiction
66-23 over the proceeding.
66-24 (b) The application must be accompanied by a nonrefundable
66-25 fee set by the clerk in an amount necessary to cover the cost of
66-26 administering this section.
66-27 (c) The term of the certification begins on the date that
67-1 the requirements are met and extends through December 31 of the
67-2 initial year. After the initial year of certification, the term of
67-3 the certification begins on January 1 and ends on December 31 of
67-4 each year. A renewal application must be completed during December
67-5 of the year preceding the year for which the renewal is requested.
67-6 (d) The clerk shall bring the information received under
67-7 this section to the judge's attention for review. The judge shall
67-8 use the information only in determining whether to appoint, remove,
67-9 or continue the appointment of a private professional guardian.
67-10 Sec. 698. ACCESS TO CRIMINAL HISTORY RECORDS. (a) The
67-11 clerk of the county having venue over the proceeding for the
67-12 appointment of a guardian shall obtain criminal history record
67-13 information that is maintained by the Department of Public Safety
67-14 or the Federal Bureau of Investigation identification division
67-15 relating to a private professional guardian or a person who
67-16 represents or plans to represent the interests of a ward as a
67-17 guardian on behalf of the private professional guardian.
67-18 (b) The criminal history record information obtained under
67-19 this section is for the exclusive use of the court and is
67-20 privileged and confidential. The criminal history record
67-21 information may not be released or otherwise disclosed to any
67-22 person or agency except on court order or consent of the person
67-23 being investigated. The clerk may destroy the criminal history
67-24 information records after the records are used for the purposes
67-25 authorized by this section.
67-26 (c) The court shall use the information obtained under this
67-27 section only in determining whether to appoint, remove, or continue
68-1 the appointment of a private professional guardian.
68-2 (d) A person commits an offense if the person releases or
68-3 discloses any information received under this section without the
68-4 authorization prescribed by Subsection (b) of this section. An
68-5 offense under this subsection is a Class A misdemeanor.
68-6 (e) The clerk may charge a reasonable fee sufficient to
68-7 recover the costs of obtaining criminal history information records
68-8 authorized by Subsection (a) of this section.
68-9 SUBPART B. QUALIFICATION
68-10 Sec. 699. HOW GUARDIANS QUALIFY. A guardian is deemed to
68-11 have duly qualified when the guardian has taken and filed the oath
68-12 required under Section 700 of this code, has made the required
68-13 bond, and has filed it with the clerk, and has the bond approved by
68-14 the judge. A guardian who is not required to make bond, is deemed
68-15 to have duly qualified when the guardian has taken and filed the
68-16 required oath.
68-17 Sec. 700. OATH OF GUARDIAN. The guardian shall take an oath
68-18 to discharge faithfully the duties of guardian for the person or
68-19 estate, or both, of a ward.
68-20 Sec. 701. TIME FOR TAKING OATH AND GIVING BOND. The oath of
68-21 a guardian may be taken and subscribed, or the bond of a guardian
68-22 may be given and approved, at any time before the expiration of the
68-23 20th day after the date of the order granting letters of
68-24 guardianship, or before the letters have been revoked for a failure
68-25 to qualify within the time allowed. An oath may be taken before
68-26 any person authorized to administer oaths under the laws of this
68-27 state.
69-1 Sec. 702. BOND OF GUARDIAN OF THE PERSON. (a) Except as
69-2 provided by Subsections (b) and (c) of this section, a guardian of
69-3 the person is required to give bond.
69-4 (b) A bond is not required to be given by a guardian that is
69-5 a corporate fiduciary, as defined by Section 601(5) of this code.
69-6 (c) When a will that is made by a surviving parent and is
69-7 probated in a court in this state directs that the guardian
69-8 appointed in the will serve without bond, the court finding that
69-9 the person is qualified shall issue letters of guardianship to the
69-10 person named to be appointed guardian in the will without
69-11 requirement of bond.
69-12 Sec. 703. BOND OF GUARDIAN OF THE ESTATE. (a) Except when
69-13 bond is not required under this chapter, before being issued
69-14 letters of guardianship of estates, the recipient of letters shall
69-15 give a bond that is conditioned as required by law and that is
69-16 payable to the judge of the county in which the guardianship
69-17 proceedings are pending or to the judge's successors in office. A
69-18 bond of the guardian of the estate must have the written approval
69-19 of either of the judges in the judge's official capacity and shall
69-20 be executed and approved in accordance with Subsections (b)-(q) of
69-21 this section.
69-22 (b) The judge shall set the penalty of the bond in an amount
69-23 that is sufficient to protect the guardianship and its creditors,
69-24 as provided by this chapter.
69-25 (c) If a bond is or will be required of a guardian of an
69-26 estate, the court, before setting the penalty of the bond, shall
69-27 hear evidence and determine:
70-1 (1) the amount of cash on hand and where deposited,
70-2 and the amount of cash estimated to be needed for administrative
70-3 purposes, including the operation of a business, factory, farm, or
70-4 ranch owned by the guardianship estate, and administrative expenses
70-5 for one year;
70-6 (2) the revenue anticipated to be received in the
70-7 succeeding 12 months from dividends, interest, rentals, or use of
70-8 real or personal property belonging to the guardianship estate and
70-9 the aggregate amount of any installments or periodic payments to be
70-10 collected;
70-11 (3) the estimated value of certificates of stock,
70-12 bonds, notes, or securities of the ward, the name of the depository
70-13 in which the stocks, bonds, notes, or securities of the ward are
70-14 held for safekeeping, the face value of life insurance or other
70-15 policies payable to the person on whose guardianship administration
70-16 is sought or to the person's estate, and other personal property
70-17 that is owned by the guardianship, or by a person with a
70-18 disability; and
70-19 (4) the estimated amount of debts due and owing by the
70-20 ward.
70-21 (d) The judge shall set the penalty of the bond in an
70-22 amount equal to the estimated value of all personal property
70-23 belonging to the ward, with an additional amount to cover revenue
70-24 anticipated to be derived during the succeeding 12 months from
70-25 interest, dividends, collectible claims, the aggregate amount of
70-26 any installments or periodic payments exclusive of income derived
70-27 or to be derived from federal social security payments, and rentals
71-1 for use of real and personal property, provided that the penalty of
71-2 the original bond shall be reduced in proportion to the amount of
71-3 cash or value of securities or other assets authorized or required
71-4 to be deposited or placed in safekeeping by court order, or
71-5 voluntarily made by the guardian or by the sureties on the bond of
71-6 the guardian as provided in Subsections (f) and (g) of this
71-7 section.
71-8 (e) If the court considers it to be in the best interests of
71-9 the ward, the court may require that the guardian and the corporate
71-10 or personal sureties on the bond of the guardian of the ward agree
71-11 to deposit any or all cash and safekeeping of other assets of the
71-12 guardianship estate in a domestic state or national bank, trust
71-13 company, savings and loan association, or other domestic corporate
71-14 depository, duly incorporated and qualified to act as a national
71-15 bank, trust company, savings and loan association, or other
71-16 domestic corporate depository under the laws of this state or of
71-17 the United States, and, if the depository is otherwise proper, the
71-18 court may require the deposit to be made in a manner so as to
71-19 prevent the withdrawal of the money or other assets in the
71-20 guardianship estate without the written consent of the surety or on
71-21 court order made on the notice to the surety. An agreement made by
71-22 a guardian and the sureties on the bond of the guardian under this
71-23 section does not release from liability or change the liability of
71-24 the principal or sureties as established by the terms of the bond.
71-25 (f) Cash, securities, or other personal assets of a ward
71-26 that a ward is entitled to receive may, and if it is deemed by the
71-27 court in the best interests of the ward shall, be deposited or
72-1 placed in safekeeping in one or more of the depositories described
72-2 in this section on the terms prescribed by the court. The court in
72-3 which the guardianship proceeding is pending, on its own motion or
72-4 on written application of the guardian or of any other person
72-5 interested in the ward, may authorize or require additional assets
72-6 of the guardianship estate then on hand or as they accrue during
72-7 the pendency of the guardianship proceeding to be deposited or held
72-8 in safekeeping as provided by this section. The amount of the
72-9 guardian's bond shall be reduced in proportion to the cash
72-10 deposited or the value of the securities or other assets placed in
72-11 safekeeping. Cash that is deposited, securities or other assets
72-12 held in safekeeping, or portions of the cash, securities, or other
72-13 assets held in safekeeping may be withdrawn from a depository only
72-14 on court order. The bond of the guardian shall be increased in
72-15 proportion to the amount of cash or the value of securities or
72-16 other assets that are authorized to be withdrawn.
72-17 (g) In lieu of giving a surety or sureties on a bond that is
72-18 required of the guardian, or for purposes of reducing the amount of
72-19 the bond, the guardian of an estate may deposit out of the
72-20 guardian's own assets cash or securities that are acceptable to the
72-21 court with a domestic state or national bank, trust company,
72-22 savings and loan association, or other domestic corporate
72-23 depository or with any other corporate depository approved by the
72-24 court. If the deposit is otherwise proper, the deposit must be
72-25 equal in amount or value to the amount of the bond required or the
72-26 bond shall be reduced by the value of assets that are deposited.
72-27 (h) The depository shall issue a receipt for a deposit in
73-1 lieu of a surety showing the amount of cash or, if securities, the
73-2 amount and description of the securities and agreeing not to
73-3 disburse or deliver the cash or securities except on receipt of a
73-4 certified copy of an order of the court in which the proceeding is
73-5 pending. The receipt must be attached to the guardian's bond and
73-6 be delivered to and filed by the county clerk after the receipt is
73-7 approved by the judge.
73-8 (i) The amount of cash or securities on deposit may be
73-9 increased or decreased by court order from time to time as the
73-10 interests of the guardianship shall require.
73-11 (j) A cash or security deposit in lieu of a surety on the
73-12 bond may be withdrawn or released only on order of a court that has
73-13 jurisdiction.
73-14 (k) A creditor has the same rights against the guardian and
73-15 the deposits as are provided for recovery against sureties on a
73-16 bond.
73-17 (l) The court on its own motion or on written application by
73-18 the guardian or any other person interested in the guardianship may
73-19 require that the guardian give adequate bond in lieu of the deposit
73-20 or may authorize withdrawal of the deposit and substitution of a
73-21 bond with sureties on the bond. In either case, the guardian shall
73-22 file a sworn statement showing the condition of the guardianship.
73-23 The guardian is subject to removal as in other cases if the
73-24 guardian does not file the sworn statement before the 21st day
73-25 after the guardian is personally served with notice of the filing
73-26 of the application or before the 21st day after the date the court
73-27 enters its motion. The deposit may not be released or withdrawn
74-1 until the court is satisfied as to the condition of the
74-2 guardianship estate, determines the amount of bond, and receives
74-3 and approves the bond.
74-4 (m) On the closing of a guardianship, a deposit or a portion
74-5 of a deposit that remains on hand, whether of the assets of the
74-6 guardian, the guardianship, or surety, shall be released by court
74-7 order and paid to the person entitled to the assets. A writ of
74-8 attachment or garnishment does not lie against the deposit except
74-9 as to claims of creditors of the guardianship being administered or
74-10 of persons interested in the guardianship, including distributees
74-11 and wards, and only if the court has ordered distribution, and only
74-12 to the extent of the ordered distribution.
74-13 (n) The surety on the bond may be an authorized corporate or
74-14 personal surety.
74-15 (o) When the bond is more than $50,000, the court may
74-16 require that the bond be signed by two or more authorized corporate
74-17 sureties or by one corporate surety and two or more good and
74-18 sufficient personal sureties. The guardianship shall pay the cost
74-19 of a bond with corporate sureties.
74-20 (p) If the sureties are natural persons, there may not be
74-21 less than two sureties, each of whom shall make affidavit in the
74-22 manner prescribed by this chapter. The judge must be satisfied
74-23 that each surety owns property in this state, over and above that
74-24 exempt by law, sufficient to qualify as a surety as required by
74-25 law. Except as otherwise provided by law, only one surety is
74-26 required if the surety is an authorized corporate surety. A
74-27 personal surety, instead of making an affidavit or creating a lien
75-1 on specific real estate when an affidavit or lien is required, may
75-2 deposit the personal surety's own cash or securities in the same
75-3 manner as a guardian in lieu of pledging real property as security,
75-4 subject to the provisions covering the deposits when made by
75-5 guardians.
75-6 (q) If the guardian is a temporary guardian, the judge shall
75-7 set the amount of the bond.
75-8 (r) The provisions of this section relating to the deposit
75-9 of cash and safekeeping of securities cover, as far as they may
75-10 apply, the orders entered by the court when:
75-11 (1) real or personal property of a guardianship has
75-12 been authorized to be sold or rented;
75-13 (2) money is borrowed from the guardianship;
75-14 (3) real property, or an interest in real property,
75-15 has been authorized to be leased for mineral development or made
75-16 subject to unitization;
75-17 (4) the general bond has been found insufficient; or
75-18 (5) money is borrowed or invested on behalf of a ward.
75-19 (s) In determining the amount of the bond, the court may not
75-20 take into account the assets of the estate that are placed in a
75-21 management trust under Subpart N, Part 4, of this code.
75-22 Sec. 704. FORM OF BOND. The following form, or the same in
75-23 substance, may be used for the bonds of guardians:
75-24 "The State of Texas
75-25 "County of _____
75-26 "Know all men by these presents that we, A. B., as principal,
75-27 and E. F., as sureties, are held and firmly bound to the county
76-1 judge of the County of ____ and his successors in office, in the
76-2 sum of $______; conditioned that the above bound A. B., who has
76-3 been appointed by the judge of the county as guardian or temporary
76-4 guardian of the person or of the estate, or both, __________,
76-5 stating in each case whether or not the person is a minor or an
76-6 incapacitated person other than a minor, shall well and truly
76-7 perform all of the duties required of the guardian or temporary
76-8 guardian of the estate by law under appointment."
76-9 Sec. 705. BOND TO BE FILED. A bond required under this
76-10 chapter shall be subscribed by the principals and sureties, and
76-11 shall be filed with the clerk when approved by the court.
76-12 Sec. 706. BOND OF JOINT GUARDIANS. When two or more persons
76-13 are appointed guardians and are required to give a bond by the
76-14 court or under this chapter, the court may require either a
76-15 separate bond from each person or one joint bond from all of the
76-16 persons.
76-17 Sec. 707. BOND OF MARRIED PERSONS. When a married person is
76-18 appointed guardian, the person may jointly execute, with or
76-19 without, the person's spouse, the bond required by law. The bond
76-20 shall bind the person's separate estate and may bind the person's
76-21 spouse only if the bond is signed by the spouse.
76-22 Sec. 708. BOND OF MARRIED PERSON YOUNGER THAN 18 YEARS OF
76-23 AGE. When a person who is younger than 18 years of age and is or
76-24 has been married accepts and qualifies as guardian, a bond required
76-25 to be executed by the person shall be as valid and binding for all
76-26 purposes as if the person were of lawful age.
76-27 Sec. 708A. BOND OF GUARDIANSHIP PROGRAM. The judge may
77-1 require a guardianship program that is appointed guardian under
77-2 this chapter to file one bond that:
77-3 (1) meets all the conditions required under this
77-4 chapter; and
77-5 (2) is in an amount that is sufficient to protect the
77-6 guardianship and the creditors of the guardianship of all of the
77-7 wards of the guardianship program.
77-8 Sec. 709. AFFIDAVIT OF PERSONAL SURETY; LIEN ON SPECIFIC
77-9 PROPERTY WHEN REQUIRED; SUBORDINATION OF LIEN AUTHORIZED. (a)
77-10 Before a judge considers a bond with a personal surety, each
77-11 personal surety shall execute an affidavit stating the amount of
77-12 the surety's assets, reachable by creditors, of a value over and
77-13 above the surety's liabilities. The total of the surety's worth
77-14 must be equal to at least double the amount of the bond. The
77-15 affidavit shall be presented to the judge for the judge's
77-16 consideration and, if approved, shall be attached to and form part
77-17 of the bond.
77-18 (b) If the judge finds that the estimated value of personal
77-19 property of the guardianship that cannot be deposited or held in
77-20 safekeeping as provided by this section is such that personal
77-21 sureties cannot be accepted without the creation of a specific lien
77-22 on the real property of the sureties, the judge shall enter an
77-23 order requiring that each surety designate real property owned by
77-24 the surety in this state subject to execution. The designated
77-25 property must be of a value over and above all liens and unpaid
77-26 taxes, equal at least to the amount of the bond, giving an adequate
77-27 legal description of the property, all of which shall be
78-1 incorporated in an affidavit by the surety, approved by the judge,
78-2 and attached to and form part of the bond. If the surety does not
78-3 comply with the order, the judge may require that the bond be
78-4 signed by an authorized corporate surety or by an authorized
78-5 corporate surety and two or more personal sureties.
78-6 (c) If a personal surety who has been required to create a
78-7 lien on specific real estate desires to lease the real property for
78-8 mineral development, the personal surety may file the surety's
78-9 written application in the court in which the proceeding is pending
78-10 to request subordination of the lien to the proposed lease. The
78-11 judge of the court in which the proceeding is pending may enter an
78-12 order granting the application. A certified copy of an order
78-13 entered under this subsection that is filed and recorded in the
78-14 deed records of the proper county is sufficient to subordinate the
78-15 lien to the rights of a lessee in the proposed lease.
78-16 Sec. 710. BOND AS LIEN ON REAL PROPERTY OF SURETY. When a
78-17 personal surety is required by the court to create a lien on
78-18 specific real property as a condition of the personal surety's
78-19 acceptance as surety on a bond, a lien on the surety's real
78-20 property in this state that is described in the affidavit of the
78-21 surety, and only on the property, shall arise as security for the
78-22 performance of the obligation of the bond. Before letters are
78-23 issued to the guardian, the clerk of the court shall mail to the
78-24 office of the county clerk of each county in which any real
78-25 property set forth in the surety's affidavit is located a statement
78-26 signed by the clerk that gives a sufficient description of the real
78-27 property, the name of the principal and sureties, the amount of the
79-1 bond, the name of the guardianship, and the court in which the bond
79-2 is given. The county clerk to whom such statement is sent shall
79-3 record the statement in the deed records of the county. The
79-4 recorded statement shall be duly indexed in such a manner that the
79-5 existence and character of a lien may conveniently be determined,
79-6 and the recording and indexing of the statement is constructive
79-7 notice to a person of the existence of the lien on the real
79-8 property located in the county, effective as of the date of the
79-9 indexing.
79-10 Sec. 711. WHEN NEW BOND MAY BE REQUIRED. A guardian may be
79-11 required to give a new bond when:
79-12 (1) one of the sureties on the bond dies, removes
79-13 beyond the limits of the state, or becomes insolvent;
79-14 (2) in the opinion of the court, the sureties on the
79-15 bond are insufficient;
79-16 (3) in the opinion of the court, the bond is
79-17 defective;
79-18 (4) the amount of the bond is insufficient;
79-19 (5) one of the sureties petitions the court to be
79-20 discharged from future liability on the bond; or
79-21 (6) the bond and the record of the bond has been lost
79-22 or destroyed.
79-23 Sec. 712. DEMAND FOR NEW BOND BY INTERESTED PERSON. A
79-24 person interested in a guardianship may allege, on application in
79-25 writing that is filed with the county clerk of the county in which
79-26 the guardianship proceeding is pending, that the guardian's bond is
79-27 insufficient or defective or has been, with the record of the bond,
80-1 lost or destroyed, and may cause the guardian to be cited to appear
80-2 and show cause why the guardian should not give a new bond.
80-3 Sec. 713. JUDGE TO REQUIRE NEW BOND. When it is made known
80-4 to a judge that a bond is insufficient or that the bond has, with
80-5 the record of the bond, been lost or destroyed, the judge without
80-6 delay shall cause the guardian to be cited to show cause why the
80-7 guardian should not give a new bond.
80-8 Sec. 714. ORDER REQUIRING NEW BOND. On the return of a
80-9 citation ordering a guardian to show cause why the guardian should
80-10 not give a new bond, the judge on the day contained in the return
80-11 of citation as the day for the hearing of the matter, shall proceed
80-12 to inquire into the sufficiency of the reasons for requiring a new
80-13 bond. If the judge is satisfied that a new bond should be
80-14 required, the judge shall enter an order to that effect that states
80-15 the amount of the new bond and the time within which the new bond
80-16 shall be given, which may not be later than 20 days from the date
80-17 of the order issued by the judge under this section.
80-18 Sec. 715. ORDER SUSPENDS POWERS OF GUARDIANS. When a
80-19 guardian is required to give a new bond, the order requiring the
80-20 bond has the effect of suspending the guardian's powers, and the
80-21 guardian may not pay out any money of the guardianship or do any
80-22 other official act, except to preserve the property of the
80-23 guardianship, until a new bond has been given and approved.
80-24 Sec. 716. DECREASE IN AMOUNT OF BOND. A guardian required
80-25 to give bond at any time may file with the clerk a written
80-26 application to the court to have the bond reduced. After an
80-27 application has been filed by the guardian under this section, the
81-1 clerk shall issue and cause to be posted notice to all persons
81-2 interested in the estate and to a surety on the bond, apprising the
81-3 persons and surety of the fact and nature of the application and of
81-4 the time at which the judge will hear the application. The judge
81-5 may permit the filing of a new bond in a reduced amount on the
81-6 submission of proof that a smaller bond than the one in effect will
81-7 be adequate to meet the requirements of the law and protect the
81-8 guardianship and on the approval of an accounting filed at the time
81-9 of the application.
81-10 Sec. 717. DISCHARGE OF SURETIES ON EXECUTION OF NEW BOND.
81-11 When a new bond has been given and approved, the judge shall enter
81-12 an order discharging the sureties on the former bond from all
81-13 liability for the future acts of the principal.
81-14 Sec. 718. RELEASE OF SURETIES BEFORE GUARDIANSHIP FULLY
81-15 ADMINISTERED. A surety on the guardian's bond at any time may file
81-16 with the clerk a petition with the court in which the proceeding is
81-17 pending, praying that the guardian be required to give a new bond
81-18 and that the petitioner be discharged from all liability for the
81-19 future acts of the guardian. If a petition is filed, the guardian
81-20 shall be cited to appear and give a new bond.
81-21 Sec. 719. RELEASE OF LIEN BEFORE GUARDIANSHIP FULLY
81-22 ADMINISTERED. If a personal surety who has given a lien on
81-23 specific real property as security applies to the court to have the
81-24 lien released, the court shall order the release requested if the
81-25 court is satisfied that the bond is sufficient without the lien on
81-26 the property or if sufficient other real or personal property of
81-27 the surety is substituted on the same terms and conditions required
82-1 for the lien that is to be released. If the personal surety who
82-2 requests the release of the lien does not offer a lien on other
82-3 real or personal property and if the court is not satisfied that
82-4 the bond is sufficient without the substitution of other property,
82-5 the court shall order the guardian to appear and give a new bond.
82-6 Sec. 720. RELEASE OF RECORDED LIEN ON SURETY'S PROPERTY. A
82-7 certified copy of the court order that describes the property,
82-8 releases the lien, and is filed with the county clerk and recorded
82-9 in the deed records of the county in which the property is located
82-10 has the effect of cancelling the lien on the property.
82-11 Sec. 721. REVOCATION OF LETTERS FOR FAILURE TO GIVE BOND.
82-12 If a guardian of a ward fails to give the bond required by the
82-13 court within the time required under this chapter, another person
82-14 may be appointed guardian of the ward.
82-15 Sec. 722. GUARDIAN WITHOUT BOND REQUIRED TO GIVE BOND. If a
82-16 bond is not required of an individual guardian of the estate, a
82-17 person who has a debt, claim, or demand against the guardianship,
82-18 to the justice of which oath has been made by the person, the
82-19 person's agent or attorney, or any other person interested in the
82-20 guardianship, in person or as the representative of another person,
82-21 may file a complaint under oath in writing in the court in which
82-22 the guardian was appointed, and the court, after a complaint is
82-23 filed under this section, shall cite the guardian to appear and
82-24 show cause why the guardian should not be required to give bond.
82-25 Sec. 723. ORDER REQUIRING BOND. On hearing a complaint
82-26 under Section 722 of this code, if it appears to the court that a
82-27 guardian is wasting, mismanaging, or misapplying the guardianship
83-1 estate and that a creditor may probably lose his debt, or that a
83-2 person's interest in the guardianship may be diminished or lost,
83-3 the court shall enter an order requiring the guardian to give a
83-4 bond not later than the 10th day after the date of the order.
83-5 Sec. 724. AMOUNT OF BOND. A bond that is required under
83-6 Section 723 of this code shall be in an amount that is sufficient
83-7 to protect the guardianship and its creditors. The bond shall be
83-8 approved by and payable to the judge and shall be conditioned that
83-9 the guardian will well and truly administer the guardianship and
83-10 that the guardian will not waste, mismanage, or misapply the
83-11 guardianship estate.
83-12 Sec. 725. FAILURE TO GIVE BOND. If the guardian fails to
83-13 give the bond required under Section 723 of this code, and the
83-14 judge does not extend the time, the judge, without citation, shall
83-15 remove the guardian and appoint a competent person as guardian of
83-16 the ward who:
83-17 (1) shall administer the guardianship according to the
83-18 provisions of a will or law;
83-19 (2) shall take the oath required of a guardian as the
83-20 case may be before the person enters on the administration of the
83-21 guardianship; and
83-22 (3) shall give bond in the same manner and in the same
83-23 amount provided in this chapter for the issuance of original
83-24 letters of guardianship.
83-25 Sec. 726. BONDS NOT VOID ON FIRST RECOVERY. The bond of a
83-26 guardian is not void on the first recovery, but the bond may be
83-27 sued on and prosecuted from time to time until the whole amount of
84-1 the bond is recovered.
84-2 PART 4. ADMINISTRATION OF GUARDIANSHIP
84-3 SUBPART A. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS
84-4 Sec. 727. APPOINTMENT OF APPRAISERS. After letters of
84-5 guardianship of the estate have been granted and on the application
84-6 of any interested person, or if the court deems it necessary, the
84-7 court shall appoint at least one but not more than three
84-8 disinterested persons who are citizens of the county in which
84-9 letters were granted to appraise the property of the ward. If the
84-10 court appoints an appraiser under this section and part of the
84-11 estate is located in a county other than the county in which
84-12 letters were granted, the court may appoint at least one but not
84-13 more than three disinterested persons who are citizens of the
84-14 county in which the part of the estate is located to appraise the
84-15 property of the estate located in the county if the court considers
84-16 it necessary to appoint an appraiser.
84-17 Sec. 728. FAILURE OF APPRAISER TO SERVE. If an appraiser
84-18 appointed under Section 727 of this code fails or refuses to act,
84-19 the court shall remove the appraiser and appoint one or more
84-20 appraisers.
84-21 Sec. 729. INVENTORY AND APPRAISEMENT. (a) Not later than
84-22 the 90th day after the date the guardian of the estate qualifies as
84-23 guardian, unless a longer time is granted by the court, the
84-24 guardian of the estate shall file with the clerk of court a
84-25 verified, full and detailed inventory, in one written instrument,
84-26 of all the property of the ward that has come into the guardian's
84-27 possession or knowledge. The inventory filed by the guardian under
85-1 this section must include:
85-2 (1) all real property of the ward that is located in
85-3 this state; and
85-4 (2) all personal property of the ward wherever
85-5 located.
85-6 (b) The guardian shall set out in the inventory the
85-7 guardian's appraisement of the fair market value of each item of
85-8 the property on the date of the grant of letters of guardianship.
85-9 If the court appoints an appraiser of the estate, the guardian
85-10 shall determine the fair market value of each item of the inventory
85-11 with the assistance of the appraiser and shall set out in the
85-12 inventory the appraisement made by the appraiser.
85-13 (c) An inventory made under this section must specify what
85-14 portion of the property is separate property and what portion is
85-15 community property. If any property is owned in common with other
85-16 persons, the interest owned by the ward shall be shown in the
85-17 inventory, together with the names and relationship, if known, of
85-18 co-owners.
85-19 (d) The inventory, when approved by the court and duly
85-20 filed with the clerk of court, is for purposes of this chapter the
85-21 inventory and appraisement of the estate referred to in this
85-22 chapter.
85-23 (e) The court for good cause shown may require the filing of
85-24 the inventory and appraisement at a time not later than the 90th
85-25 day after the date of qualification of the guardian.
85-26 Sec. 730. LIST OF CLAIMS. The guardian shall make and
85-27 attach to an inventory under Section 729 of this code a full and
86-1 complete list of all claims due or owing to the ward that must
86-2 state:
86-3 (1) the name of each person indebted to the ward and
86-4 the address of the person if known;
86-5 (2) the nature of the debt, whether it is a note,
86-6 bill, bond, or other written obligation or whether it is an account
86-7 or verbal contract;
86-8 (3) the date of the indebtedness and the date when the
86-9 debt is or was due;
86-10 (4) the amount of each claim, the rate of interest on
86-11 each claim, and time for which the claim bears interest; and
86-12 (5) what portion of the claim is held in common with
86-13 others, including the names and the relationships of other part
86-14 owners and the interest of the estate in the claim.
86-15 Sec. 731. AFFIDAVIT ATTACHED. The guardian of the estate
86-16 shall attach to the inventory and list of claims the guardian's
86-17 affidavit subscribed and sworn to before an officer in the county
86-18 authorized by law to administer oaths that the inventory and list
86-19 of claims are a true and complete statement of the property and
86-20 claims of the estate that have come to the guardian's knowledge.
86-21 Sec. 732. APPRAISER FEES. An appraiser appointed by the
86-22 court is entitled to receive a reasonable fee for the performance
86-23 of the appraiser's duties as an appraiser that are to be paid out
86-24 of the estate.
86-25 Sec. 733. COURT ACTION. (a) On return of the inventory,
86-26 appraisement, and list of claims, the judge shall examine and
86-27 approve or disapprove the inventory, appraisement, or list of
87-1 claims as follows:
87-2 (1) if the judge approves the inventory, appraisement,
87-3 and list of claims, the judge shall issue an order to that effect;
87-4 and
87-5 (2) if the judge does not approve the inventory,
87-6 appraisement, or list of claims, the judge shall enter an order to
87-7 that effect.
87-8 (b) The court order shall require the return of another
87-9 inventory, appraisement, and list of claims, or whichever of them
87-10 is disapproved, within a time specified in the order but not later
87-11 than 20 days after the date of the order. The judge may appoint
87-12 new appraisers if the judge deems it necessary.
87-13 Sec. 734. DISCOVERY OF ADDITIONAL PROPERTY. The guardian of
87-14 the estate shall promptly file with the clerk of court a verified,
87-15 full, and detailed supplemental inventory and appraisement if
87-16 property or claims that are not included in the inventory come to
87-17 the guardian's possession or knowledge after the guardian files the
87-18 inventory and appraisement required under Section 729 of this code.
87-19 Sec. 735. ADDITIONAL INVENTORY OR LIST OF CLAIMS. (a) On
87-20 the written complaint of an interested person that property or
87-21 claims of the estate have not been included in the inventory and
87-22 list of claims filed by the guardian, the guardian of an estate
87-23 shall be cited to appear before the court in which the cause is
87-24 pending and show cause why the guardian should not be required to
87-25 make and return an additional inventory or list of claims, or both.
87-26 (b) After hearing a complaint filed under this section and
87-27 being satisfied of the truth of the complaint, the court shall
88-1 enter an order requiring the additional inventory or list of
88-2 claims, or both, to be made and returned in like manner as the
88-3 original inventory, not later than 20 days after the date of the
88-4 order, as may be set by the court. The additional inventory or
88-5 list of claims must include only property or claims that were not
88-6 inventoried or listed by the guardian.
88-7 Sec. 736. CORRECTION WHEN INVENTORY, APPRAISEMENT, OR LIST
88-8 OF CLAIMS ERRONEOUS OR UNJUST. A person interested in an estate
88-9 who deems an inventory, appraisement, or list of claims returned by
88-10 the guardian erroneous or unjust in any particular form may file a
88-11 written complaint that sets forth and points out the alleged
88-12 erroneous or unjust items and cause the guardian to be cited to
88-13 appear before the court and show cause why the errors should not be
88-14 corrected. On the hearing of a complaint filed under this section,
88-15 if the court is satisfied from the evidence that the inventory,
88-16 appraisement, or list of claims is erroneous or unjust in any
88-17 particular form as alleged in the complaint, the court shall enter
88-18 an order that specifies the erroneous or unjust items and the
88-19 corrections to be made and that appoints an appraiser to make a new
88-20 appraisement correcting the erroneous or unjust items and requires
88-21 the return of the new appraisement not later than the 20th day
88-22 after the date of the order. The court may also, on its own motion
88-23 or on motion of the guardian of the estate, have a new appraisal
88-24 made for the purposes described by this section.
88-25 Sec. 737. EFFECT OF REAPPRAISEMENT. When a reappraisement
88-26 is made, returned, and approved by the court, the reappraisement
88-27 stands in place of the original appraisement. Not more than one
89-1 reappraisement shall be made, but any person interested in the
89-2 estate may object to the reappraisement before or after the
89-3 reappraisement is approved. If the court finds that the
89-4 reappraisement is erroneous or unjust, the court shall appraise the
89-5 property on the basis of the evidence before the court.
89-6 Sec. 738. FAILURE OF JOINT GUARDIANS TO RETURN AN INVENTORY,
89-7 APPRAISEMENT, AND LIST OF CLAIMS. If there is more than one
89-8 qualified guardian of the estate, one or more of the guardians, on
89-9 the neglect of the other guardians, may make and return an
89-10 inventory and appraisement and list of claims. The guardian so
89-11 neglecting may not thereafter interfere with the estate or have any
89-12 power over the estate. The guardian that returns an inventory,
89-13 appraisement, and list of claims has the whole administration,
89-14 unless, not later than the 60th day after the date of return, each
89-15 of the delinquent guardians assigns to the court in writing and
89-16 under oath a reasonable excuse that the court may deem
89-17 satisfactory. If no excuse is filed or if the excuse filed by a
89-18 delinquent guardian is insufficient, the court shall enter an order
89-19 removing the delinquent guardian and revoking the guardian's
89-20 letters.
89-21 Sec. 739. USE OF INVENTORIES, APPRAISEMENTS, AND LISTS OF
89-22 CLAIMS AS EVIDENCE. All inventories, appraisements, and lists of
89-23 claims that have been taken, returned, and approved in accordance
89-24 with the law, or the record of an inventory, appraisement, or list
89-25 of claims, or copies of either the originals or the record, duly
89-26 certified under the seal of the county court affixed by the clerk,
89-27 may be given in evidence in any of the courts of this state in any
90-1 suit by or against the guardian of the estate, but may not be
90-2 conclusive for or against the guardian of the estate if it is shown
90-3 that any property or claims of the estate are not shown in the
90-4 inventory, appraisement, or list of claims or that the value of the
90-5 property or claims of the estate actually was in excess of the
90-6 value shown in the appraisement and list of claims.
90-7 SUBPART B. ANNUAL ACCOUNTS, REPORTS, AND OTHER EXHIBITS
90-8 Sec. 741. ANNUAL ACCOUNTS REQUIRED. (a) Not later than the
90-9 60th day after the expiration of 12 months from the date of
90-10 qualification, unless the court extends that time period, the
90-11 guardian of the estate of a ward shall return to the court an
90-12 exhibit in writing under oath setting forth a list of all claims
90-13 against the estate that were presented to the guardian within the
90-14 period covered by the account and specifying which claims have been
90-15 allowed, paid, or rejected by the guardian and the date when any
90-16 claim was rejected and which claims have been the subject of a
90-17 lawsuit and the status of the lawsuit, and showing:
90-18 (1) all property that has come to the guardian's
90-19 knowledge or into the guardian's possession that has not been
90-20 previously listed or inventoried as property of the ward;
90-21 (2) any changes in the property of the ward that have
90-22 not been previously reported;
90-23 (3) a complete account of receipts and disbursements
90-24 for the period covered by the account, and the source and nature of
90-25 the receipts and disbursements, with receipts of principal and
90-26 income shown separately;
90-27 (4) a complete, accurate, and detailed description of
91-1 the property being administered, the condition of the property, and
91-2 the use being made of the property and, if rented, the terms of the
91-3 rental and the price for which the property is being rented;
91-4 (5) the cash balance on hand and the name and location
91-5 of the depository where the cash balance is kept and any other sums
91-6 of cash in savings accounts or other form, deposited subject to
91-7 court order, and the name and location of the depository of the
91-8 cash; and
91-9 (6) a detailed description of personal property of the
91-10 estate, that, with respect to bonds, notes, and other securities,
91-11 includes the names of obligor and obligee, or if payable to bearer,
91-12 so state; the date of issue and maturity; the rate of interest;
91-13 serial or other identifying numbers; in what manner the property is
91-14 secured; and other data necessary to identify the same fully, and
91-15 how and where held for safekeeping.
91-16 (b) A guardian of the estate shall file annual accounts
91-17 conforming to the essential requirements of those in Subsection (a)
91-18 of this section as to changes in the assets of the estate after
91-19 rendition of the former account so that the true condition of the
91-20 estate, with respect to money or securities or other property, can
91-21 be ascertained by the court or by any interested person, by adding
91-22 to the balances forward the receipts, and then subtracting the
91-23 disbursements. The description of property sufficiently described
91-24 in an inventory or previous account may be by reference to the
91-25 property.
91-26 (c) The following shall be annexed to all annual accounts of
91-27 guardians of estates:
92-1 (1) proper vouchers for each item of credit claimed in
92-2 the account, or, in the absence of a voucher, the item must be
92-3 supported by evidence satisfactory to the court, and original
92-4 vouchers may, on application, be returned to the guardian after
92-5 approval of the guardian's account;
92-6 (2) an official letter from the bank or other
92-7 depository in which the money on hand of the estate or ward is
92-8 deposited that shows the amounts in general or special deposits;
92-9 and
92-10 (3) proof of the existence and possession of
92-11 securities owned by the estate, or shown by the accounting, and
92-12 other assets held by a depository subject to court order, the proof
92-13 by one of the following means:
92-14 (A) an official letter from the bank or other
92-15 depository that holds the securities or other assets for
92-16 safekeeping; provided, that if the depository is the
92-17 representative, the official letter shall be signed by a
92-18 representative of the depository other than the depository that
92-19 verifies the account;
92-20 (B) a certificate of an authorized
92-21 representative of the corporation that is the surety on the
92-22 representative's bonds;
92-23 (C) a certificate of the clerk or a deputy clerk
92-24 of a court of record in this state; or
92-25 (D) an affidavit of any other reputable person
92-26 designated by the court on request of the guardian or other
92-27 interested party.
93-1 (d) A certificate or affidavit under this section shall be
93-2 to the effect that the affiant has examined the assets exhibited to
93-3 the affiant by the guardian as assets of the estate in which the
93-4 accounting is made, shall describe the assets by reference to the
93-5 account or otherwise sufficiently to identify those assets
93-6 exhibited, and shall state the time when and the place where the
93-7 assets were exhibited. Instead of using a certificate or an
93-8 affidavit, the representative may exhibit the securities to the
93-9 judge of the court who shall endorse on the account, or include in
93-10 the judge's order with respect to the account, a statement that the
93-11 securities shown to the judge as on hand were in fact exhibited to
93-12 the judge and that those securities exhibited to the judge were the
93-13 same as those shown in the account, or note any variance. If the
93-14 securities are exhibited at any place other than where deposited
93-15 for safekeeping, it shall be at the expense and risk of the
93-16 representative. The judge may require additional evidence as to
93-17 the existence and custody of the securities and other personal
93-18 property as in the judge's discretion the judge considers proper,
93-19 and the judge may require the representative to exhibit the
93-20 securities to the judge, or any person designated by the judge, at
93-21 any time at the place where the securities are held for
93-22 safekeeping.
93-23 (e) The guardian of the estate filing the account shall
93-24 attach to the account the guardian's affidavit that:
93-25 (1) the account contains a correct and complete
93-26 statement of the matters to which the account relates;
93-27 (2) the guardian has paid the bond premium for the
94-1 next accounting period;
94-2 (3) the guardian has filed all tax returns of the ward
94-3 due during the accounting period; and
94-4 (4) the guardian has paid all taxes the ward owed
94-5 during the accounting period, showing:
94-6 (A) the amount of the taxes;
94-7 (B) the date the guardian paid the taxes; and
94-8 (C) the name of the governmental entity to which
94-9 the guardian paid the taxes.
94-10 (f) If the guardian, on the ward's behalf, has not filed a
94-11 tax return or paid taxes that are due on the filing of the account
94-12 under this section, the guardian of the estate filing the account
94-13 shall attach to the account a description of the taxes and the
94-14 reasons for the guardian's failure to file the return or pay the
94-15 taxes.
94-16 (g) If the estate produces negligible or fixed income, the
94-17 court has the power to waive the filing of annual accounts, and the
94-18 court may permit the guardian to receive all income and apply it to
94-19 the support, maintenance, and education of the ward and account to
94-20 the court for income and corpus of the estate when the estate must
94-21 be closed.
94-22 Sec. 742. ACTION ON ANNUAL ACCOUNTS. (a) The rules in this
94-23 section govern the handling of annual accounts.
94-24 (b) Annual accounts shall be filed with the county clerk,
94-25 and the filing of the accounts shall be noted on the judge's
94-26 docket.
94-27 (c) Before being considered by the judge, the account must
95-1 remain on file for 10 days.
95-2 (d) After the expiration of 10 days after the filing of an
95-3 annual account, the judge shall consider the annual account, and
95-4 may continue the hearing on the account until the judge is fully
95-5 advised as to all items of the account.
95-6 (e) An accounting may not be approved unless possession of
95-7 cash, listed securities, or other assets held in safekeeping or on
95-8 deposit under court order has been proved as required by law.
95-9 (f) If an account is found to be incorrect, it shall be
95-10 corrected. When corrected to the satisfaction of the court, the
95-11 account shall be approved by a court order, and the court shall act
95-12 with respect to unpaid claims, as follows:
95-13 (1) if it appears from the exhibit, or from other
95-14 evidence, that the estate is wholly solvent, and that the guardian
95-15 has sufficient funds for the payment of every claim against the
95-16 estate, the court shall order immediate payment made of all claims
95-17 allowed and approved or established by judgment; and
95-18 (2) if it appears from the account, or from other
95-19 evidence, that the funds on hand are not sufficient for the payment
95-20 of all the claims, or if the estate is insolvent and the guardian
95-21 has any funds on hand, the court shall order the funds to be
95-22 applied to the payment of all claims having a preference in the
95-23 order of their priority if any claim is still unpaid, and then to
95-24 the payment pro rata of the other claims allowed and approved or
95-25 established by final judgment, taking into consideration also the
95-26 claims that were presented not later than 12 months after the date
95-27 of the granting of administration and those claims that are in suit
96-1 or on which suit may yet be instituted.
96-2 Sec. 743. REPORTS OF GUARDIANS OF THE PERSON. (a) The
96-3 guardian of the person, when there is a separate guardian of the
96-4 estate, shall at the expiration of 12 months from the date of the
96-5 guardian's qualification and receipt of letters, and annually
96-6 thereafter, return to the court the guardian's sworn account
96-7 showing each item of receipts and disbursements for the support and
96-8 maintenance of the ward, the education of the ward when necessary,
96-9 and support and maintenance of the ward's dependents, when
96-10 authorized by order of court.
96-11 (b) The guardian of the person, whether or not there is a
96-12 separate guardian of the estate, shall submit to the court an
96-13 annual report by sworn affidavit that contains the following
96-14 information:
96-15 (1) the guardian's current name, address, and phone
96-16 number;
96-17 (2) the ward's current:
96-18 (A) name, address, and phone number; and
96-19 (B) age and date of birth;
96-20 (3) the type of home in which the ward resides,
96-21 described as the ward's own; a nursing, guardian's, foster, or
96-22 boarding home; a relative's home, and the ward's relationship to
96-23 the relative; a hospital or medical facility; or other type of
96-24 residence;
96-25 (4) the length of time the ward has resided in the
96-26 present home and, if there has been a change in the ward's
96-27 residence in the past year, the reason for the change;
97-1 (5) the date the guardian most recently saw the ward,
97-2 and how frequently the guardian has seen the ward in the past year;
97-3 (6) a statement indicating whether or not the guardian
97-4 has possession or control of the ward's estate;
97-5 (7) the following statements concerning the ward's
97-6 health during the past year:
97-7 (A) whether the ward's mental health has
97-8 improved, deteriorated, or remained unchanged, and a description if
97-9 there has been a change; and
97-10 (B) whether the ward's physical health has
97-11 improved, deteriorated, or remained unchanged, and a description if
97-12 there has been a change;
97-13 (8) a statement concerning whether or not the ward has
97-14 regular medical care, and the ward's treatment or evaluation by any
97-15 of the following persons during the last year, including the name
97-16 of that person, and the treatment involved:
97-17 (A) a physician;
97-18 (B) a psychiatrist, psychologist, or other
97-19 mental health care provider;
97-20 (C) a dentist;
97-21 (D) a social or other caseworker; or
97-22 (E) another individual who provided treatment;
97-23 (9) a description of the ward's activities during the
97-24 past year, including recreational, educational, social, and
97-25 occupational activities, or if no activities are available or if
97-26 the ward is unable or has refused to participate in them, a
97-27 statement to that effect;
98-1 (10) the guardian's evaluation of the ward's living
98-2 arrangements as excellent, average, or below average, including an
98-3 explanation if the conditions are below average;
98-4 (11) the guardian's evaluation of whether the ward is
98-5 content or unhappy with the ward's living arrangements;
98-6 (12) the guardian's evaluation of unmet needs of the
98-7 ward;
98-8 (13) a statement of whether or not the guardian's
98-9 power should be increased, decreased, or unaltered, including an
98-10 explanation if a change is recommended; and
98-11 (14) any additional information the guardian desires
98-12 to share with the court regarding the ward.
98-13 (c) If the ward is deceased, the guardian shall provide the
98-14 court with the date and place of death, if known, in lieu of the
98-15 information about the ward otherwise required to be provided in the
98-16 annual report.
98-17 (d) Unless the judge is satisfied that the facts stated are
98-18 true, he shall issue orders as are necessary for the best interests
98-19 of the ward.
98-20 Sec. 744. PENALTY FOR FAILURE TO FILE ACCOUNTINGS, EXHIBITS,
98-21 OR REPORTS. If a guardian fails to file any accounting, exhibit,
98-22 or report required by this chapter, any person interested in the
98-23 estate may, on written complaint filed with the clerk of the
98-24 court, or the court on its own motion, may cause the guardian to be
98-25 cited to appear and show cause why the guardian should not file the
98-26 exhibit or report; and, on hearing, the court may order the
98-27 guardian to file the exhibit or report, and, unless good cause is
99-1 shown for the failure to file the exhibit or report, the court may
99-2 revoke the letters of the guardian and may fine the guardian an
99-3 amount not to exceed $1,000.
99-4 SUBPART C. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE
99-5 Sec. 745. CLOSING GUARDIANSHIPS OF THE ESTATE. (a) A
99-6 guardianship of the estate of a ward is settled and closed when:
99-7 (1) a minor ward dies or becomes an adult by becoming
99-8 18 years of age, or by removal of disabilities of minority
99-9 according to the law of this state, or by marriage;
99-10 (2) an incapacitated ward dies, or is decreed as
99-11 provided by law to have been restored to full legal capacity;
99-12 (3) the spouse of a married ward has qualified as
99-13 survivor in community and the ward owns no separate property;
99-14 (4) the estate of a ward becomes exhausted;
99-15 (5) the foreseeable income accruing to a ward or to
99-16 his estate is so negligible that maintaining the guardianship in
99-17 force would be burdensome;
99-18 (6) all of the assets of the estate have been placed
99-19 in a management trust under Subpart N, Part 4, of this code and the
99-20 court determines that a guardianship for the ward is no longer
99-21 necessary; or
99-22 (7) the court determines for any other reason that a
99-23 guardianship for the ward is no longer necessary.
99-24 (b) In a case arising under Subsection (a)(5) of this
99-25 section, the court may authorize the income to be paid to a parent,
99-26 or other person who has acted as guardian of the ward, to assist in
99-27 the maintenance of the ward and without liability to account to the
100-1 court for the income.
100-2 (c) When the estate of a minor ward consists only of cash or
100-3 cash equivalents in an amount of $25,000 or less, the guardianship
100-4 of the estate may be terminated and the assets paid to the county
100-5 clerk of the county in which the guardianship proceeding is
100-6 pending, and the clerk shall manage the funds as provided by
100-7 Section 885 of this code.
100-8 (d) In the settlement and closing of a guardianship, the
100-9 court may appoint an attorney ad litem to represent the interests
100-10 of the ward, and may allow the attorney reasonable compensation for
100-11 services provided by the attorney out of the ward's estate.
100-12 Sec. 746. PAYMENT OF FUNERAL EXPENSES AND OTHER DEBTS.
100-13 Notwithstanding Section 745 of this code, before the guardianship
100-14 of a person or estate of a ward is closed on the death of a ward,
100-15 the guardian, subject to the approval of the court, may make all
100-16 funeral arrangements, pay for the funeral expenses out of the
100-17 estate of the deceased ward, and pay all other debts out of the
100-18 estate. If a personal representative of the estate of a deceased
100-19 ward is appointed, the court shall on the written complaint of the
100-20 personal representative cause the guardian to be cited to appear
100-21 and present a final account as provided in Section 749 of this
100-22 code.
100-23 Sec. 747. TERMINATION OF GUARDIANSHIP OF THE PERSON. (a)
100-24 When the guardianship of an incapacitated person is settled and
100-25 closed as provided by Section 745 of this code, the guardian of the
100-26 person shall deliver all property of the ward in the possession or
100-27 control of the guardian to the emancipated ward or other person
101-1 entitled to the property. If the ward is deceased, the guardian
101-2 shall deliver the property to the personal representative of the
101-3 deceased ward's estate or other person entitled to the property.
101-4 (b) If there is no property of the ward in the possession or
101-5 control of the guardian of the person, the guardian shall file with
101-6 the court a sworn affidavit that states the reason the guardianship
101-7 was terminated and to whom the property of the ward in the
101-8 guardian's possession was delivered. The judge may issue orders as
101-9 necessary for the best interests of the ward or of the estate of a
101-10 deceased ward. This section does not discharge a guardian of the
101-11 person from liability for breach of the guardian's fiduciary
101-12 duties.
101-13 Sec. 748. PAYMENT BY GUARDIAN OF TAXES OR EXPENSES.
101-14 Notwithstanding any other provision of this chapter, a probate
101-15 court in which proceedings to declare heirship are maintained may
101-16 order the payment by the guardian of any and all taxes or expenses
101-17 of administering the estate and may order the sale of properties in
101-18 the ward's estate, when necessary, for the purpose of paying the
101-19 taxes or expenses of administering the estate or for the purpose of
101-20 distributing the estate among the heirs.
101-21 Sec. 749. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS.
101-22 When a guardianship of the estate is settled and closed, the
101-23 guardian shall present to the court the guardian's verified account
101-24 for final settlement. In the account it shall be sufficient to
101-25 refer to the inventory without describing each item of property in
101-26 detail and to refer to and adopt any and all guardianship
101-27 proceedings that concern sales, renting or hiring, leasing for
102-1 mineral development, or any other transaction on behalf of the
102-2 guardianship estate, including an exhibit, account, or voucher
102-3 previously filed and approved, without restating the particular
102-4 items. Each final account shall be accompanied by proper vouchers
102-5 in support of each item not already accounted for and shall show,
102-6 either by reference to any proceedings authorized above or by
102-7 statement of the facts:
102-8 (1) the property, rents, revenues, and profits
102-9 received by the guardian, and belonging to the ward, during the
102-10 term of the guardianship;
102-11 (2) the disposition made of the property, rents,
102-12 revenues, and profits;
102-13 (3) the expenses and debts against the estate that
102-14 remain unpaid, if any;
102-15 (4) the property of the estate that remains in the
102-16 hands of the guardian, if any; and
102-17 (5) other facts as appear necessary to a full and
102-18 definite understanding of the exact condition of the guardianship.
102-19 Sec. 750. PROCEDURE IN CASE OF NEGLECT OR FAILURE TO FILE
102-20 FINAL ACCOUNT OR REPORT. (a) If a guardian charged with the duty
102-21 of filing a final account or report fails or neglects so to do at
102-22 the proper time, the court may, on the court's own motion, or on
102-23 the written complaint of the emancipated ward or anyone interested
102-24 in the ward or the ward's estate, shall cause the guardian to be
102-25 cited to appear and present the account or report within the time
102-26 specified in the citation.
102-27 (b) If a written complaint has not been filed by anyone
103-1 interested in the guardianship of a person or estate of a minor or
103-2 deceased ward, the court may, on or after the third anniversary
103-3 after the date of the death of the ward or after the date the minor
103-4 reaches the age of majority, remove the estate from the court's
103-5 active docket without a final accounting and without appointing a
103-6 successor personal representative.
103-7 (c) If a complaint has not been filed by anyone interested
103-8 in the estate of a ward whose whereabouts are unknown to the court,
103-9 the court may, on or after the fourth anniversary after the ward's
103-10 whereabouts became unknown to the court, remove the estate from the
103-11 court's active docket without a final accounting and without
103-12 appointing a successor personal representative.
103-13 Sec. 751. CITATION ON PRESENTATION OF ACCOUNT FOR FINAL
103-14 SETTLEMENT. (a) On the filing of an account for final settlement
103-15 by a guardian of the estate of a ward, citation must contain a
103-16 statement that the final account has been filed, the time and place
103-17 when it will be considered by the court, and a statement requiring
103-18 the person cited to appear and contest the final account if the
103-19 person determines it is proper. The county clerk shall issue the
103-20 citation to the following persons and in the manner provided by
103-21 this section.
103-22 (b) If a ward is a living resident of this state who is 14
103-23 years of age or older, and the ward's residence is known, the ward
103-24 shall be cited by personal service, unless the ward, in person or
103-25 by attorney, by writing filed with the clerk, waives the issuance
103-26 and personal service of citation.
103-27 (c) If one who has been a ward is deceased, the ward's
104-1 executor or administrator, if one has been appointed, shall be
104-2 personally served, but no service is required if the executor or
104-3 administrator is the same person as the guardian.
104-4 (d) If a ward's residence is unknown, or if the ward is a
104-5 nonresident of this state, or if the ward is deceased and no
104-6 representative of the ward's estate has been appointed and
104-7 qualified in this state, the citation to the ward or to the ward's
104-8 estate shall be by publication, unless the court by written order
104-9 directs citation by posting.
104-10 (e) If the court deems further additional notice necessary,
104-11 it shall require the additional notice by written order. In its
104-12 discretion, the court may allow the waiver of notice of an account
104-13 for final settlement in a guardianship proceeding.
104-14 Sec. 752. COURT ACTION. (a) On being satisfied that
104-15 citation has been duly served on all persons interested in the
104-16 estate, the court shall examine the account for final settlement
104-17 and the vouchers accompanying the account. After hearing all
104-18 exceptions or objections to the account and evidence in support of
104-19 or against the account, the court shall audit and settle the same,
104-20 and restate it if that is necessary.
104-21 (b) On final settlement of an estate, if there is any part
104-22 of the estate remaining in the hands of the guardian, the court
104-23 shall order that it be delivered, in case of a ward, to the ward,
104-24 or in the case of a deceased ward, to the personal representative
104-25 of the deceased ward's estate if one has been appointed, or to any
104-26 other person legally entitled to the estate.
104-27 (c) If on final settlement of an estate there is no part of
105-1 the estate remaining in the hands of the guardian, the court shall
105-2 discharge the guardian from the guardian's trust and order the
105-3 estate closed.
105-4 (d) When the guardian of an estate has fully administered
105-5 the estate in accordance with this chapter and the orders of the
105-6 court and the guardian's final account has been approved, and the
105-7 guardian has delivered all of the estate remaining in the
105-8 guardian's hands to any person entitled to receive the estate, the
105-9 court shall enter an order discharging the guardian from the
105-10 guardian's trust, and declaring the estate closed.
105-11 Sec. 753. MONEY BECOMING DUE PENDING FINAL DISCHARGE. Money
105-12 or any other thing of value falling due to the estate or ward while
105-13 the account for final settlement is pending, other than money or
105-14 any other thing of value held under Section 703(c) of this code,
105-15 until the order of final discharge of the guardian is entered in
105-16 the minutes of the court, may be paid, delivered, or tendered to
105-17 the emancipated ward, the guardian, or the personal representative
105-18 of the deceased ward's estate, who shall issue a receipt for the
105-19 money or other thing of value, and the obligor or payor shall be
105-20 discharged of the obligation for all purposes.
105-21 Sec. 754. INHERITANCE TAXES MUST BE PAID. If the guardian
105-22 has been ordered to make payment of inheritance taxes under this
105-23 code, an estate of a deceased ward may not be closed unless the
105-24 final account shows and the court finds that all inheritance taxes
105-25 due and owing to this state with respect to all interests and
105-26 properties passing through the hands of the guardian have been
105-27 paid.
106-1 Sec. 755. APPOINTMENT OF ATTORNEY TO REPRESENT WARD. When
106-2 the ward is dead and there is no executor or administrator of the
106-3 ward's estate, or when the ward is a nonresident, or the ward's
106-4 residence is unknown, the court may appoint an attorney ad litem to
106-5 represent the interest of the ward in the final settlement with the
106-6 guardian, and shall allow the attorney reasonable compensation out
106-7 of the ward's estate for any services provided by the attorney.
106-8 Sec. 756. OFFSETS, CREDITS, AND BAD DEBTS. In the
106-9 settlement of any of the accounts of the guardian of an estate, all
106-10 debts due the estate that the court is satisfied could not have
106-11 been collected by due diligence, and that have not been collected,
106-12 shall be excluded from the computation.
106-13 Sec. 757. ACCOUNTING FOR LABOR OR SERVICES OF A WARD. The
106-14 guardian of a ward shall account for the reasonable value of the
106-15 labor or services of the ward of the guardian, or the proceeds of
106-16 the labor or services, if the labor or services have been rendered
106-17 by the ward, but the guardian is entitled to reasonable credits for
106-18 the board, clothing, and maintenance of the ward.
106-19 Sec. 758. PROCEDURE IF REPRESENTATIVE FAILS TO DELIVER
106-20 ESTATE. If a guardian, on final settlement or termination of the
106-21 guardianship of the estate, neglects to deliver to the person
106-22 entitled when legally demanded any portion of the estate or any
106-23 funds or money in the hands of the guardian ordered to be
106-24 delivered, a person entitled to the estate, funds, or money may
106-25 file with the clerk of the court a written complaint alleging the
106-26 fact of the guardian's neglect, the date of the person's demand,
106-27 and other relevant facts. After the person files a complaint under
107-1 this section, the clerk shall issue a citation to be served
107-2 personally on the guardian, appraising the guardian of the
107-3 complaint and citing the guardian to appear before the court and
107-4 answer, if the guardian desires, at the time designated in the
107-5 citation. If at the hearing the court finds that the citation was
107-6 duly served and returned and that the guardian is guilty of the
107-7 neglect charged, the court shall enter an order to that effect, and
107-8 the guardian shall be liable to the person who filed the complaint
107-9 in damages at the rate of 10 percent of the amount or appraised
107-10 value of the money or estate withheld, per month, for each month or
107-11 fraction of a month that the estate or money of a guardianship of
107-12 the estate, or on termination of guardianship of the person, or
107-13 funds is or has been withheld by the guardian after the date of
107-14 demand, which damages may be recovered in any court of competent
107-15 jurisdiction.
107-16 SUBPART D. REVOCATION OF LETTERS, DEATH, RESIGNATION, AND REMOVAL
107-17 Sec. 759. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) In case
107-18 of death, a personal representative of the deceased person shall
107-19 account for, pay, and deliver to a person legally entitled to
107-20 receive the property, all the property belonging to the
107-21 guardianship that is entrusted to the care of the representative,
107-22 at the time and in the manner as the court orders. On a finding
107-23 that a necessity for the immediate appointment of a successor
107-24 guardian exists, the court may appoint a successor guardian without
107-25 citation or notice.
107-26 (b) If letters have been granted to a person, and another
107-27 person whose right to be appointed successor guardian is prior and
108-1 who has not waived the right and is qualified, applies for letters,
108-2 the letters previously granted shall be revoked and other letters
108-3 shall be granted to the applicant.
108-4 (c) If a person named in a will as guardian is not an adult
108-5 when the will is probated and letters in any capacity have been
108-6 granted to another person, the nominated guardian, on proof that
108-7 the nominated guardian has become an adult and is not otherwise
108-8 disqualified from serving as a guardian, is entitled to have the
108-9 former letters revoked and appropriate letters granted to the
108-10 nominated guardian. If the will names two or more persons as
108-11 guardian, any one or more of whom are minors when the will is
108-12 probated and letters have been issued to the persons who are
108-13 adults, a minor, on becoming an adult, if not otherwise
108-14 disqualified, is permitted to qualify and receive letters.
108-15 (d) If a person named in a will as guardian was ill or
108-16 absent from the state when the testator died, or when the will was
108-17 proved, and for that reason could not present the will for probate
108-18 not later than the 30th day after the testator's death, or accept
108-19 and qualify as guardian not later than the 20th day after the date
108-20 the will was probated, the person may accept and qualify as
108-21 guardian not later than the 60th day after the person's return or
108-22 recovery from illness, on proof to the court that the person was
108-23 absent or ill. If the letters have been issued to another person,
108-24 the letters shall be revoked.
108-25 (e) If it is discovered after letters of guardianship have
108-26 been issued that the deceased person left a lawful will, the
108-27 letters shall be revoked and proper letters of guardianship issued
109-1 to a person entitled to receive the letters.
109-2 (f) Except when otherwise expressly provided in this
109-3 chapter, letters may not be revoked and other letters granted
109-4 except on application, and after personal service of citation on
109-5 the person, if living, whose letters are sought to be revoked, that
109-6 the person appear and show cause why the application should not be
109-7 granted.
109-8 (g) Money or any other thing of value falling due to a ward
109-9 while the office of the guardian is vacant may be paid, delivered,
109-10 or tendered to the clerk of the court for credit of the ward, and
109-11 the debtor, obligor, or payor shall be discharged of the obligation
109-12 for all purposes to the extent and purpose of the payment or
109-13 tender. If the clerk accepts the payment or tender, the clerk
109-14 shall issue a proper receipt for the payment or tender.
109-15 (h) The court may appoint as successor guardian a spouse,
109-16 parent, or child of a proposed ward who has been disqualified from
109-17 serving as guardian because of a litigation conflict under Section
109-18 681(4) of this code on removal of the conflict that caused the
109-19 initial disqualification if the spouse, parent, or child is
109-20 otherwise qualified to serve as a guardian.
109-21 Sec. 760. RESIGNATION. (a) A guardian of the estate who
109-22 wishes to resign the guardian's trust shall file with the clerk a
109-23 written application to the court to that effect, accompanied by a
109-24 full and complete exhibit and final account, duly verified, showing
109-25 the true condition of the guardianship estate entrusted to the
109-26 guardian's care. A guardian of the person who wishes to resign the
109-27 guardian's trust shall file with the clerk a written application to
110-1 the court to that effect, accompanied by a report setting forth the
110-2 information required in the annual report required under this
110-3 chapter, duly verified, showing the condition of the ward entrusted
110-4 to the guardian's care.
110-5 (b) If the necessity exists, the court may immediately
110-6 accept a resignation and appoint a successor but may not discharge
110-7 the person resigning as guardian of the estate or release the
110-8 person or the sureties on the person's bond until final order or
110-9 judgment is rendered on the final account of the guardian.
110-10 (c) On the filing of an application to resign, supported by
110-11 an exhibit and final account, the clerk shall call the application
110-12 to the attention of the judge, who shall set a date for a hearing
110-13 on the matter. The clerk shall then issue a citation to all
110-14 interested persons, showing that proper application has been filed
110-15 and the time and place set for hearing, at which time the
110-16 interested persons may appear and contest the exhibit and account
110-17 or report. The citation shall be posted, unless the court directs
110-18 that it be published.
110-19 (d) At the time set for hearing, unless it has been
110-20 continued by the court, if the court finds that citation has been
110-21 duly issued and served, the court shall proceed to examine the
110-22 exhibit and account or report and hear all evidence for and against
110-23 the exhibit, account, or report and shall, if necessary, restate,
110-24 and audit and settle the exhibit, account, or report. If the court
110-25 is satisfied that the matters entrusted to the applicant have been
110-26 handled and accounted for in accordance with the law, the court
110-27 shall enter an order of approval and require that the estate
111-1 remaining in the possession of the applicant, if any, be delivered
111-2 to the person entitled by law to receive it. A guardian of the
111-3 person is required to comply with all orders of the court
111-4 concerning the ward of the guardian.
111-5 (e) A resigning guardian may not be discharged until the
111-6 application has been heard, the exhibit and account or report
111-7 examined, settled, and approved, and the guardian has satisfied the
111-8 court that the guardian has delivered the estate, if there is any
111-9 part of the estate remaining in the possession of the guardian, or
111-10 has complied with all orders of the court with relation to the
111-11 guardian's trust.
111-12 (f) When the resigning guardian has complied in all respects
111-13 with the orders of the court, an order shall be made accepting the
111-14 resignation, discharging the applicant, and, if the applicant is
111-15 under bond, the sureties of the guardian.
111-16 Sec. 761. REMOVAL. (a) The court, on its own motion or on
111-17 motion of any interested person, including the ward, and without
111-18 notice, may remove any guardian, appointed under this chapter, who:
111-19 (1) neglects to qualify in the manner and time
111-20 required by law;
111-21 (2) fails to return within 90 days after
111-22 qualification, unless the time is extended by order of the court,
111-23 an inventory of the property of the guardianship estate and list of
111-24 claims that have come to the guardian's knowledge;
111-25 (3) having been required to give a new bond, fails to
111-26 do so within the time prescribed;
111-27 (4) absents himself from the state for a period of
112-1 three months at one time without permission of the court, or
112-2 removes from the state;
112-3 (5) cannot be served with notices or other processes
112-4 because the guardian's whereabouts are unknown, or because the
112-5 guardian is eluding service;
112-6 (6) has misapplied, embezzled, or removed from the
112-7 state, or is about to misapply, embezzle, or remove from the state,
112-8 all or any part of the property committed to the guardian's care;
112-9 or
112-10 (7) has cruelly treated a ward, or has neglected to
112-11 educate or maintain the ward as liberally as the means of the ward
112-12 and the condition of the ward's estate permit.
112-13 (b) The court may remove a personal representative under
112-14 Subsection (a)(6) or (7) of this section only on the presentation
112-15 of clear and convincing evidence given under oath.
112-16 (c) The court may remove a guardian on its own motion, or on
112-17 the complaint of an interested person, after the guardian has been
112-18 cited by personal service to answer at a time and place set in the
112-19 notice, when:
112-20 (1) sufficient grounds appear to support belief that
112-21 the guardian has misapplied, embezzled, or removed from the state,
112-22 or that the guardian is about to misapply, embezzle, or remove from
112-23 the state, all or any part of the property committed to the care of
112-24 the guardian;
112-25 (2) the guardian fails to return any account or report
112-26 that is required by law to be made;
112-27 (3) the guardian fails to obey any proper order of the
113-1 court having jurisdiction with respect to the performance of the
113-2 guardian's duties;
113-3 (4) the guardian is proved to have been guilty of
113-4 gross misconduct or mismanagement in the performance of the duties
113-5 of the guardian;
113-6 (5) the guardian becomes incapacitated, or is
113-7 sentenced to the penitentiary, or from any other cause becomes
113-8 incapable of properly performing the duties of the guardian's
113-9 trust;
113-10 (6) as guardian of the person, the guardian cruelly
113-11 treats the ward, or neglects to educate or maintain the ward as
113-12 liberally as the means of the ward's estate and the ward's ability
113-13 or condition permit;
113-14 (7) the guardian interferes with the ward's progress
113-15 or participation in programs in the community; or
113-16 (8) the guardian fails to comply with the requirements
113-17 of Section 697 of this code.
113-18 (d) The order of removal shall state the cause of the
113-19 removal. It must require that any letters issued to the person who
113-20 is removed shall, if the removed person has been personally served
113-21 with citation, be surrendered and that all those letters be
113-22 cancelled of record, whether or not delivered. It must further
113-23 require, as to all the estate remaining in the hands of a removed
113-24 person, delivery of the estate to the person or persons entitled to
113-25 the estate, or to one who has been appointed and has qualified as
113-26 successor guardian, and as to the person of a ward, that control be
113-27 relinquished as required in the order.
114-1 Sec. 762. REINSTATEMENT AFTER REMOVAL. (a) Not later than
114-2 the 10th day after the date the court signs the order of removal, a
114-3 personal representative who is removed under Subsection (a)(6) or
114-4 (7), Section 761, of this code may file an application with the
114-5 court for a hearing to determine whether the personal
114-6 representative should be reinstated.
114-7 (b) On the filing of an application for a hearing under this
114-8 section, the court clerk shall issue a notice stating that the
114-9 application for reinstatement was filed, the name of the ward or
114-10 decedent, and the name of the applicant. The clerk shall issue the
114-11 notice to the applicant, the ward, a person interested in the
114-12 welfare of the ward, the decedent's estate, or the ward's estate,
114-13 and, if applicable, to a person who has control of the care and
114-14 custody of the ward. The notice must cite all persons interested
114-15 in the estate or welfare of the ward to appear at the time and
114-16 place stated in the notice if they wish to contest the application.
114-17 (c) If, at the conclusion of a hearing under this section,
114-18 the court is satisfied by a preponderance of the evidence that the
114-19 applicant did not engage in the conduct that directly led to the
114-20 applicant's removal, the court shall set aside an order appointing
114-21 a successor representative, if any, and shall enter an order
114-22 reinstating the applicant as personal representative of the ward or
114-23 estate.
114-24 (d) If the court sets aside the appointment of a successor
114-25 representative under this section, the court may require the
114-26 successor representative to prepare and file, under oath, an
114-27 accounting of the estate and to detail the disposition the
115-1 successor has made of the property of the estate.
115-2 Sec. 763. ADDITIONAL POWERS OF SUCCESSOR GUARDIAN. In
115-3 addition, a successor guardian may make himself, and may be made, a
115-4 party to a suit prosecuted by or against the predecessor of the
115-5 successor guardian. The successor guardian may settle with the
115-6 predecessor and receive and receipt for all the portion of the
115-7 estate as remains in the hands of the successor guardian. The
115-8 successor guardian may bring suit on the bond or bonds of the
115-9 predecessor in the guardian's own name and capacity for all the
115-10 estate that came into the hands of the predecessor and has not been
115-11 accounted for by the predecessor.
115-12 Sec. 764. SUBSEQUENT GUARDIANS SUCCEED TO PRIOR RIGHTS AND
115-13 DUTIES. Whenever a guardian shall accept and qualify after letters
115-14 of guardianship are granted on the estate, the guardian shall, in
115-15 like manner, succeed to the previous guardian, and the guardian
115-16 shall administer the estate in like manner as if the administration
115-17 by the guardian were a continuation of the former one.
115-18 Sec. 765. SUCCESSORS' RETURN OF INVENTORY, APPRAISEMENT, AND
115-19 LIST OF CLAIMS. A successor guardian who has qualified to succeed
115-20 a prior guardian shall make and return to the court an inventory,
115-21 appraisement, and list of claims of the estate, not later than 90
115-22 days after the date of qualification, in the same manner as is
115-23 required of an original appointee. The successor guardian shall in
115-24 like manner as is required of an original appointee return
115-25 additional inventories, appraisements, and lists of claims. In all
115-26 orders appointing a successor guardian, the court shall appoint an
115-27 appraiser as in original appointments on the application of any
116-1 person interested in the estate.
116-2 SUBPART E. GENERAL DUTIES AND POWERS OF GUARDIANS
116-3 Sec. 767. POWERS AND DUTIES OF GUARDIANS OF THE PERSON. The
116-4 guardian of the person is entitled to the charge and control of the
116-5 person of the ward, and the duties of the guardian correspond with
116-6 the rights of the guardian. A guardian of the person has:
116-7 (1) the right to have physical possession of the ward
116-8 and to establish the ward's legal domicile;
116-9 (2) the duty of care, control, and protection of the
116-10 ward;
116-11 (3) the duty to provide the ward with clothing, food,
116-12 medical care, and shelter; and
116-13 (4) the power to consent to medical, psychiatric, and
116-14 surgical treatment other than the in-patient psychiatric commitment
116-15 of the ward.
116-16 Sec. 768. GENERAL POWERS AND DUTIES OF GUARDIAN OF THE
116-17 ESTATE. The guardian of the estate of a ward is entitled to the
116-18 possession and management of all property belonging to the ward, to
116-19 collect all debts, rentals, or claims that are due to the ward, to
116-20 enforce all obligations in favor of the ward, and to bring and
116-21 defend suits by or against the ward; but, in the management of the
116-22 estate, the guardian is governed by the provisions of this chapter.
116-23 It is the duty of the guardian of the estate to take care of and
116-24 manage the estate as a prudent person would manage the person's own
116-25 property. The guardian of the estate shall account for all rents,
116-26 profits, and revenues that the estate would have produced by such
116-27 prudent management.
117-1 Sec. 769. SUMMARY OF POWERS OF GUARDIAN OF PERSON AND
117-2 ESTATE. The guardian of both the person of and estate of a ward
117-3 has all the rights and powers and shall perform all the duties of
117-4 the guardian of the person and of the guardian of the estate.
117-5 Sec. 770. CARE OF WARD; COMMITMENT. (a) The guardian of an
117-6 adult may expend funds of the guardianship as provided by court
117-7 order to care for and maintain the incapacitated person. The
117-8 guardian may apply for residential care and services provided by a
117-9 public or private facility on behalf of an incapacitated person who
117-10 has decision-making ability if the person agrees to be placed in
117-11 the facility. The guardian shall report the condition of the
117-12 person to the court at regular intervals at least annually, unless
117-13 the court orders more frequent reports. If the person is receiving
117-14 residential care in a public or private residential care facility,
117-15 the guardian shall include in any report to the court a statement
117-16 as to the necessity for continued care in the facility.
117-17 (b) Except as provided by Subsection (c) or (d) of this
117-18 section, a guardian may not voluntarily admit an incapacitated
117-19 person to a public or private in-patient psychiatric facility or to
117-20 a residential facility operated by the Texas Department of Mental
117-21 Health and Mental Retardation for care and treatment. If care and
117-22 treatment in a psychiatric or a residential facility are necessary,
117-23 the person or the person's guardian may apply for services under
117-24 Section 593.027 or 593.028, Health and Safety Code, or apply to a
117-25 court to commit the person under Subtitle D, Title 7, Health and
117-26 Safety Code (Persons with Mental Retardation Act), Subtitle C,
117-27 Title 7, Health and Safety Code (Texas Mental Health Code), or
118-1 Chapter 462, Health and Safety Code.
118-2 (c) A guardian of a person younger than 16 years of age may
118-3 voluntarily admit an incapacitated person to a public or private
118-4 inpatient psychiatric facility for care and treatment.
118-5 (d) A guardian of a person may voluntarily admit an
118-6 incapacited person to a residential care facility for emergency
118-7 care or respite care under Section 593.027 or 593.028, Health and
118-8 Safety Code.
118-9 SUBPART F. SPECIFIC DUTIES AND POWERS OF GUARDIANS
118-10 Sec. 771. GUARDIAN OF ESTATE: POSSESSION OF PERSONAL
118-11 PROPERTY AND RECORDS. The guardian of an estate, immediately after
118-12 receiving letters of guardianship, shall collect and take into
118-13 possession the personal property, record books, title papers, and
118-14 other business papers of the ward and shall deliver the personal
118-15 property, books, or papers, of the ward to a person who is legally
118-16 entitled to that property when the guardianship has been closed or
118-17 a successor guardian has received letters.
118-18 Sec. 772. COLLECTION OF CLAIMS AND RECOVERY OF PROPERTY.
118-19 (a) Every guardian of an estate shall use ordinary diligence to
118-20 collect all claims and debts due the ward and to recover possession
118-21 of all property of the ward to which the ward has claim or title,
118-22 if there is a reasonable prospect of collecting the claims or of
118-23 recovering the property. If the guardian wilfully neglects to use
118-24 ordinary diligence, the guardian and the sureties on the guardian's
118-25 bond shall be liable, at the suit of any person interested in the
118-26 estate, for the use of the estate, for the amount of the claims or
118-27 for the value of the property that has been lost due to the
119-1 guardian's neglect.
119-2 (b) Except as provided by Subsection (c) of this section, a
119-3 guardian of an estate may enter into a contract to convey, or may
119-4 convey, a contingent interest in any property sought to be
119-5 recovered, not exceeding one-third thereof for services of
119-6 attorneys, subject only to the approval of the court in which the
119-7 estate is being administered.
119-8 (c) A guardian of an estate may convey or contract to convey
119-9 for services of attorneys a contingent interest that exceeds
119-10 one-third of the property sought to be recovered under this section
119-11 only on the approval of the court in which the estate is being
119-12 administered. The court must approve a contract entered into or
119-13 conveyance made under this section before an attorney performs any
119-14 legal services. A contract entered into or conveyance made in
119-15 violation of this section is void, unless the court ratifies or
119-16 reforms the contract or documents relating to the conveyance to the
119-17 extent necessary to cause the contract or conveyance to meet the
119-18 requirements of this section.
119-19 (d) In approving a contract or conveyance under Subsection
119-20 (b) or (c) of this section for services of an attorney, the court
119-21 shall consider:
119-22 (1) the time and labor that will be required, the
119-23 novelty and difficulty of the questions to be involved, and the
119-24 skill that will be required to perform the legal services properly;
119-25 (2) the fee customarily charged in the locality for
119-26 similar legal services;
119-27 (3) the value of property recovered or sought to be
120-1 recovered by the personal representative under this section;
120-2 (4) the benefits to the estate that the attorney will
120-3 be responsible for securing; and
120-4 (5) the experience and ability of the attorney who
120-5 will be performing the services.
120-6 (e) On satisfactory proof to the court, a guardian of an
120-7 estate is entitled to all necessary and reasonable expenses
120-8 incurred by the guardian in collecting or attempting to collect a
120-9 claim or debt owed to the estate or in recovering or attempting to
120-10 recover property to which the estate has a title or claim.
120-11 Sec. 773. SUIT BY GUARDIAN. A guardian appointed in this
120-12 state may institute suits for the recovery of personal property,
120-13 debts, or damages and suits for title to or possession of land or
120-14 for any right attached to or growing out of the same or for injury
120-15 or damage done. Judgment in those cases shall be conclusive but
120-16 may be set aside by any person interested for fraud or collusion on
120-17 the part of the guardian.
120-18 Sec. 774. EXERCISE OF POWER WITH OR WITHOUT COURT ORDER.
120-19 (a) On application, and if authorized by an order, the guardian of
120-20 the estate may renew or extend any obligation owed by or to the
120-21 ward. On written application to the court and when a guardian of
120-22 the estate deems it is in the interest of the estate, the guardian
120-23 may, if authorized by an order of the court:
120-24 (1) purchase or exchange property;
120-25 (2) take a claim or property for the use and benefit
120-26 of the estate in payment of a debt due or owing to the estate;
120-27 (3) compound a bad or doubtful debt due or owing to
121-1 the estate;
121-2 (4) make a compromise or a settlement in relation to
121-3 property or a claim in dispute or litigation; and
121-4 (5) compromise or pay in full any secured claim that
121-5 has been allowed and approved as required by law against the estate
121-6 by conveying to the holder of the secured claim the real estate or
121-7 personalty securing the claim, in full payment, liquidation, and
121-8 satisfaction of the claim, and in consideration of cancellation of
121-9 a note, deed of trust, mortgage, chattel mortgage, or other
121-10 evidence of a lien that secures the payment of the claim.
121-11 (b) The guardian of the estate of a person, without
121-12 application to or order of the court, may exercise the following
121-13 powers provided, however, that a guardian may apply and obtain an
121-14 order if doubtful of the propriety of the exercise of any such
121-15 power:
121-16 (1) release a lien on payment at maturity of the debt
121-17 secured by the lien;
121-18 (2) vote stocks by limited or general proxy;
121-19 (3) pay calls and assessments;
121-20 (4) insure the estate against liability in appropriate
121-21 cases;
121-22 (5) insure property of the estate against fire, theft,
121-23 and other hazards; and
121-24 (6) pay taxes, court costs, and bond premiums.
121-25 Sec. 775. POSSESSION OF PROPERTY HELD IN COMMON OWNERSHIP.
121-26 If the ward holds or owns any property in common, or as part owner
121-27 with another person, the guardian of the estate is entitled to
122-1 possession of the property of the ward held or owned in common with
122-2 a part owner in the same manner as another owner in common or joint
122-3 owner would be entitled.
122-4 Sec. 776. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF
122-5 WARD. (a) Subject to Section 777 of this code, the court may
122-6 direct the guardian of the person to expend, for the education and
122-7 maintenance of the guardian's ward, a sum in excess of the income
122-8 of the ward's estate. Otherwise, the guardian may not be allowed,
122-9 for the education and maintenance of the ward, more than the net
122-10 income of the estate. When different persons have the guardianship
122-11 of the person and estate of a ward, the guardian of the estate
122-12 shall pay to the guardian of the person a sum that is set by the
122-13 court, at a time specified by the court, for the education and
122-14 maintenance of the ward. If the guardian of the estate fails to
122-15 pay to the guardian of the person the sum set by the court, the
122-16 guardian of the estate shall be compelled to make the payment by
122-17 court order after the guardian is duly cited to appear.
122-18 (b) When a guardian has in good faith expended funds from
122-19 the corpus of the estate of the ward of the guardian for support
122-20 and maintenance for the ward under this section, and when it is not
122-21 convenient or possible for the guardian to first secure court
122-22 approval, if the proof is clear and convincing that the
122-23 expenditures were reasonable and proper, and are expenditures that
122-24 the court would have granted authority to make the expenditures out
122-25 of the corpus, and the ward received the benefits of the
122-26 expenditures, the court may approve the expenditures in the same
122-27 manner as if the expenditures were made by the guardian out of the
123-1 income from the ward's estate. An expenditure under this
123-2 subsection may not exceed $5,000 per ward during an annual
123-3 accounting period, unless the expenditure is made to a nursing home
123-4 in which case the court may ratify any amount.
123-5 Sec. 777. SUMS ALLOWED PARENTS FOR EDUCATION AND MAINTENANCE
123-6 OF MINOR WARD. (a) Except as provided by Subsection (b) of this
123-7 section, a parent who is the guardian of the person of a ward who
123-8 is 17 years of age or younger may not use the income or the corpus
123-9 from the ward's estate for the ward's support, education, or
123-10 maintenance.
123-11 (b) A court with proper jurisdiction may authorize the
123-12 guardian of the person to spend the income or the corpus from the
123-13 ward's estate to support, educate, or maintain the ward if the
123-14 guardian presents clear and convincing evidence to the court that
123-15 the ward's parents are unable without unreasonable hardship to pay
123-16 for all of the expenses related to the ward's support.
123-17 Sec. 778. TITLE OF WARDS NOT TO BE DISPUTED. A guardian or
123-18 the heirs, executors, administrators, or assigns of a guardian may
123-19 not dispute the right of the ward to any property that came into
123-20 the possession of the guardian as guardian of the ward, except
123-21 property that is recovered from the guardian or property on which
123-22 there is a personal action pending.
123-23 Sec. 779. OPERATION OF FARM, RANCH, FACTORY, OR OTHER
123-24 BUSINESS. If the ward owns a farm, ranch, factory, or other
123-25 business and if the farm, ranch, factory, or other business is not
123-26 required to be sold at once for the payment of debts or other
123-27 lawful purposes, the guardian of the estate on order of the court
124-1 shall carry on the operation of the farm, ranch, factory, or other
124-2 business, or cause the same to be done, or rent the same, as shall
124-3 appear to be for the best interests of the estate. In deciding,
124-4 the court shall consider the condition of the estate and the
124-5 necessity that may exist for the future sale of the property or
124-6 business for the payment of a debt, claim, or other lawful
124-7 expenditure and may not extend the time of renting any of the
124-8 property beyond what appears consistent with the maintenance and
124-9 education of a ward or the settlement of the estate of the ward.
124-10 Sec. 780. ADMINISTRATION OF PARTNERSHIP INTEREST BY
124-11 GUARDIAN. If the ward was a partner in a general partnership and
124-12 the articles of partnership provide that, on the incapacity of a
124-13 partner, the guardian of the estate of the partner is entitled to
124-14 the place of the incapacitated partner in the firm, the guardian
124-15 who contracts to come into the partnership shall, to the extent
124-16 allowed by law, be liable to a third person only to the extent of
124-17 the incapacitated partner's capital in the partnership and the
124-18 assets of the estate of the partner that are held by the guardian.
124-19 This section does not exonerate a guardian from liability for the
124-20 negligence of the guardian.
124-21 Sec. 781. BORROWING MONEY. (a) The guardian may mortgage
124-22 or pledge any real or personal property of a guardianship estate by
124-23 deed of trust or otherwise as security for an indebtedness, under
124-24 court order, when necessary for any of the following purposes:
124-25 (1) for the payment of any ad valorem, income, gift,
124-26 or transfer taxes due from a ward, regardless of whether the taxes
124-27 are assessed by a state, a political subdivision of the state, the
125-1 federal government, or a foreign country;
125-2 (2) for the payment of any expenses of administration,
125-3 including sums necessary for the operation of a business, farm, or
125-4 ranch owned by the estate;
125-5 (3) for the payment of any claims allowed and
125-6 approved, or established by suit, against the ward or the estate of
125-7 the ward;
125-8 (4) to renew and extend a valid, existing lien;
125-9 (5) to make improvements or repairs to the real estate
125-10 of the ward if:
125-11 (A) the real estate of the ward is not revenue
125-12 producing but could be made revenue producing by certain
125-13 improvements and repairs; or
125-14 (B) the revenue from the real estate could be
125-15 increased by making improvements or repairs to the real estate;
125-16 (6) court-authorized borrowing of money that the court
125-17 finds to be in the best interests of the ward for the purchase of a
125-18 residence for the ward or a dependent of the ward; and
125-19 (7) if the guardianship is kept open after the death
125-20 of the ward, funeral expenses of the ward and expenses of the
125-21 ward's last illness.
125-22 (b) When it is necessary to borrow money for any of the
125-23 purposes authorized under Subsection (a) of this section, or to
125-24 create or extend a lien on property of the estate as security, a
125-25 sworn application for the authority to borrow money shall be filed
125-26 with the court, stating fully and in detail the circumstances that
125-27 the guardian of the estate believes make necessary the granting of
126-1 the authority. On the filing of an application under this
126-2 subsection, the clerk shall issue and cause to be posted a citation
126-3 to all interested persons, stating the nature of the application
126-4 and requiring the interested persons to appear and show cause why
126-5 the application should not be granted.
126-6 (c) If the court is satisfied by the evidence adduced at the
126-7 hearing on the application that it is in the interest of the ward
126-8 or the ward's estate to borrow money under Subsection (b) of this
126-9 section, or to extend and renew an existing lien, the court shall
126-10 issue an order to that effect, setting out the terms and conditions
126-11 of the authority granted. The term of the loan or renewal shall be
126-12 for the length of time that the court determines to be for the best
126-13 interests of the ward or the ward's estate. If a new lien is
126-14 created on the property of a guardianship estate, the court may
126-15 require that the guardian's general bond be increased, or that an
126-16 additional bond be given, for the protection of the guardianship
126-17 estate and its creditors, as for the sale of real property
126-18 belonging to the estate.
126-19 Sec. 782. POWERS, DUTIES, AND OBLIGATIONS OF GUARDIAN OF
126-20 PERSON ENTITLED TO GOVERNMENT FUNDS. (a) A guardian of the person
126-21 for whom it is necessary to have a guardian appointed to receive
126-22 funds from a governmental agency has the power to administer only
126-23 the funds received from the governmental agency, all earnings,
126-24 interest, or profits derived from the funds, and all property
126-25 acquired with the funds. The guardian has the power to receive the
126-26 funds and pay out the expenses of administering the guardianship
126-27 and the expenses for the support, maintenance, or education of the
127-1 ward or the ward's dependents. Expenditures for the support,
127-2 maintenance, or education of the ward or the ward's dependents may
127-3 not exceed $12,000 during any 12-month period without the court's
127-4 approval.
127-5 (b) All acts performed before September 1, 1993, by
127-6 guardians of the estate of a person for whom it is necessary to
127-7 have a guardian appointed to receive and disburse funds that are
127-8 due the person from a governmental source or agency are validated
127-9 if the acts are performed in conformance with orders of a court
127-10 that has venue with respect to the support, maintenance, and
127-11 education of the ward or the ward's dependents and the investment
127-12 of surplus funds of the ward under this chapter and if the validity
127-13 of the act is not an issue in a probate proceeding or civil lawsuit
127-14 that is pending on September 1, 1993.
127-15 SUBPART G. CLAIMS PROCEDURES
127-16 Sec. 783. NOTICE BY GUARDIAN OF APPOINTMENT. (a) Within
127-17 one month after receiving letters, personal representatives of
127-18 estates shall send to the comptroller of public accounts by
127-19 certified or registered mail if the decedent remitted or should
127-20 have remitted taxes administered by the comptroller of public
127-21 accounts and publish in some newspaper, printed in the county where
127-22 the letters were issued, if there be one, a notice requiring all
127-23 persons having a claim against the estate being administered to
127-24 present the claim within the time prescribed by law. The notice
127-25 must include the time of issuance of letters held by the
127-26 representative, the address to which a claim may be presented, and
127-27 an instruction of the representative's choice that a claim be
128-1 addressed in care of the representative, in care of the
128-2 representative's attorney, or in care of "Representative, Estate of
128-3 _________________" (naming the estate).
128-4 (b) A copy of the printed notice, with the affidavit of the
128-5 publisher, duly sworn to and subscribed before a proper officer, to
128-6 the effect that the notice was published as provided in this
128-7 chapter for the service of citation or notice by publication, shall
128-8 be filed in the court in which the cause is pending.
128-9 (c) When no newspaper is printed in the county, the notice
128-10 shall be posted and the return made and filed as required by this
128-11 chapter.
128-12 Sec. 784. NOTICE TO HOLDERS OF RECORDED CLAIMS. (a) Within
128-13 four months after receiving letters, the guardian of an estate
128-14 shall give notice of the issuance of the letters to each and every
128-15 person having a claim for money against the estate of a ward if the
128-16 claim is secured by a deed of trust, mortgage, or vendor's,
128-17 mechanic's or other contractor's lien on real estate belonging to
128-18 the estate.
128-19 (b) Within four months after receiving letters, the guardian
128-20 of an estate shall give notice of the issuance of the letters to
128-21 each person having an outstanding claim for money against the
128-22 estate of a ward if the guardian has actual knowledge of the claim.
128-23 (c) The notice stating the original grant of letter shall be
128-24 given by mailing the notice by certified mail or registered letter,
128-25 with return receipt requested, addressed to the record holder of
128-26 the indebtedness or claim at the last known post office address of
128-27 the record holder.
129-1 (d) A copy of each notice required by Subsection (a) of this
129-2 section, with the return receipt and an affidavit of the
129-3 representative, stating that the notice was mailed as required by
129-4 law, giving the name of the person to whom the notice was mailed,
129-5 if not shown on the notice or receipt, shall be filed in the court
129-6 from which letters were issued.
129-7 Sec. 785. ONE NOTICE SUFFICIENT; PENALTY FOR FAILURE TO GIVE
129-8 NOTICE. (a) If the notice required by Section 784 of this code
129-9 has been given by a former representative, or by one when several
129-10 representatives are acting, the notice given by the former
129-11 representative or co-representative is sufficient and need not be
129-12 repeated by any successor or co-representative.
129-13 (b) If the guardian fails to give the notice required in
129-14 other sections of this chapter or to cause the notices to be given,
129-15 the guardian and the sureties on the bond of the guardian shall be
129-16 liable for any damage that any person suffers because of the
129-17 neglect, unless it appears that the person had notice otherwise.
129-18 Sec. 786. Claims Against Wards. (a) A claim may be
129-19 presented to the guardian of the estate at any time when the estate
129-20 is not closed and when suit on the claim has not been barred by the
129-21 general statutes of limitation.
129-22 (b) A claim against a ward on which a suit is barred by a
129-23 general statute of limitation applicable to the claim may not be
129-24 allowed by a guardian. If allowed by the guardian and the court is
129-25 satisfied that limitation has run, the claim shall be disapproved.
129-26 Sec. 787. Tolling of General Statutes of Limitation. The
129-27 general statutes of limitation are tolled:
130-1 (1) by filing a claim that is legally allowed and
130-2 approved; or
130-3 (2) by bringing a suit on a rejected and disapproved
130-4 claim not later than the 90th day after the date of rejection or
130-5 disapproval.
130-6 Sec. 788. Claims Must Be Authenticated. Except as provided
130-7 by this section, with respect to the payment of an unauthenticated
130-8 claim by a guardian, a guardian of the estate may not allow and the
130-9 court may not approve a claim for money against the estate, unless
130-10 the claim is supported by an affidavit that the claim is just and
130-11 that all legal offsets, payments, and credits known to the affiant
130-12 have been allowed. If the claim is not founded on a written
130-13 instrument or account, the affidavit must also state the facts on
130-14 which the claim is founded. A photostatic copy of an exhibit or
130-15 voucher necessary to prove a claim under this section may be
130-16 offered with and attached to the claim instead of the original.
130-17 Sec. 789. When Defects of Form Are Waived. Any defect of
130-18 form or claim of insufficiency of exhibits or vouchers presented is
130-19 deemed waived by the guardian unless written objection to the form,
130-20 exhibit, or voucher is made not later than the 30th day after the
130-21 date of presentment of the claim and is filed with the county
130-22 clerk.
130-23 Sec. 790. Evidence Concerning Lost or Destroyed Claims. If
130-24 evidence of a claim is lost or destroyed, the claimant or a
130-25 representative of the claimant may make affidavit to the fact of
130-26 the loss or destruction, stating the amount, date, and nature of
130-27 the claim and when due, that the claim is just, that all legal
131-1 offsets, payments, and credits known to the affiant have been
131-2 allowed, and that the claimant is still the owner of the claim.
131-3 The claim must be proved by disinterested testimony taken in open
131-4 court, or by oral or written deposition, before the claim is
131-5 approved. If the claim is allowed or approved without the
131-6 affidavit or if the claim is approved without satisfactory proof,
131-7 the allowance or approval is void.
131-8 Sec. 791. Authentication of Claim by Others Than Individual
131-9 Owners. The cashier, treasurer, or managing official of a
131-10 corporation shall make the affidavit required to authenticate a
131-11 claim of the corporation. When an affidavit is made by an officer
131-12 of a corporation, or by an executor, administrator, guardian,
131-13 trustee, assignee, agent, or attorney, it is sufficient to state in
131-14 the affidavit that the person making the affidavit has made
131-15 diligent inquiry and examination and that the person believes that
131-16 the claim is just and that all legal offsets, payments, and credits
131-17 made known to the person making the affidavit have been allowed.
131-18 Sec. 792. Guardian's Payment of Unauthenticated Claims. A
131-19 guardian may pay an unauthenticated claim against the estate of the
131-20 guardian's ward that the guardian believes to be just, but the
131-21 guardian and the sureties on the bond of the guardian shall be
131-22 liable for the amount of any payment of the claim if the court
131-23 finds that the claim is not just.
131-24 Sec. 793. Method of Handling Secured Claims. (a) When a
131-25 secured claim against a ward is presented, the claimant shall
131-26 specify in the claim, in addition to all other matters required to
131-27 be specified in claims:
132-1 (1) whether the claim shall be allowed and approved as
132-2 a matured secured claim to be paid in due course of administration,
132-3 in which event it shall be so paid if allowed and approved; or
132-4 (2) whether the claim shall be allowed, approved, and
132-5 fixed as a preferred debt and lien against the specific property
132-6 securing the indebtedness and paid according to the terms of the
132-7 contract that secured the lien, in which event it shall be so
132-8 allowed and approved if it is a valid lien; provided, however, the
132-9 guardian may pay the claim prior to maturity if it is in the best
132-10 interests of the estate to do so.
132-11 (b) If a secured claim is not presented within the time
132-12 provided by law, it shall be treated as a claim to be paid in
132-13 accordance with Subsection (a)(2) of this section.
132-14 (c) When an indebtedness has been allowed and approved under
132-15 Subsection (a)(2) of this section, no further claim shall be made
132-16 against other assets of the estate because of the indebtedness, but
132-17 the claim remains a preferred lien against the property securing
132-18 the claim, and the property remains security for the debt in any
132-19 distribution or sale of the property before final maturity and
132-20 payment of the debt.
132-21 (d) If property that secures a claim allowed, approved, and
132-22 fixed under Subsection (a)(2) of this section is not sold or
132-23 distributed not later than the 12th month after the date letters of
132-24 guardianship are granted, the guardian of the estate shall promptly
132-25 pay all maturities that have accrued on the debt according to the
132-26 terms of the maturities and shall perform all the terms of any
132-27 contract securing the maturities. If the guardian defaults in the
133-1 payment or performance, the court, on motion of the claim holder,
133-2 shall require the sale of the property subject to the unmatured
133-3 part of the debt and apply the proceeds of the sale to the
133-4 liquidation of the maturities or, at the option of the claim
133-5 holder, a motion may be made in a like manner to require the sale
133-6 of the property free of the lien and to apply the proceeds to the
133-7 payment of the whole debt.
133-8 Sec. 794. Claims Providing for Attorney's Fees. If the
133-9 instrument that evidences or supports a claim provides for
133-10 attorney's fees, the claimant may include as a part of the claim
133-11 the portion of the fee that the claimant has paid or contracted to
133-12 pay to an attorney to prepare, present, and collect the claim.
133-13 Sec. 795. Depositing Claims With Clerk. A claim may also be
133-14 presented by depositing the claim, with vouchers and necessary
133-15 exhibits and affidavit attached to the claim, with the clerk. The
133-16 clerk, on receiving the claim, shall advise the guardian of the
133-17 estate or the guardian's attorney by letter mailed to the last
133-18 known address of the guardian of the deposit of the claim. If the
133-19 guardian fails to act on the claim within 30 days after it is
133-20 filed, the claim is presumed to be rejected. Failure of the clerk
133-21 to give notice as required under this section does not affect the
133-22 validity of the presentment or the presumption of rejection of the
133-23 claim because not acted on within the 30-day period.
133-24 Sec. 796. Memorandum of Allowance or Rejection of Claim.
133-25 When a duly authenticated claim against a guardianship estate is
133-26 presented to the guardian or filed with the clerk as provided by
133-27 this subpart, the guardian shall, not later than the 30th day after
134-1 the date the claim is presented or filed, endorse or annex to the
134-2 claim a memorandum signed by the guardian stating the time of
134-3 presentation or filing of the claim and that the guardian allows or
134-4 rejects the claim, or what portion of the claim the guardian allows
134-5 or rejects.
134-6 Sec. 797. Failure to Endorse or Annex Memorandum. The
134-7 failure of a guardian of an estate to endorse on or annex to a
134-8 claim presented to the guardian, or the failure of a guardian to
134-9 allow or reject the claim or portion of the claim within 30 days
134-10 after the claim was presented constitutes a rejection of the claim.
134-11 If the claim is later established by suit, the costs shall be taxed
134-12 against the guardian, individually, or the guardian may be removed
134-13 as in other cases of removal on the written complaint of any person
134-14 interested in the claim, after personal service of citation,
134-15 hearing, and proof.
134-16 Sec. 798. Claims Entered In Docket. After a claim against a
134-17 ward's estate has been presented to and allowed by the guardian,
134-18 either in whole or in part, the claim shall be filed with the
134-19 county clerk of the proper county who shall enter it on the claim
134-20 docket.
134-21 Sec. 799. Contest of Claims, Action by Court, and Appeals.
134-22 (a) Any person interested in a ward, at any time before the court
134-23 has acted on a claim, may appear and object in writing to the
134-24 approval of the claim, or any part of the claim. The parties are
134-25 entitled to process for witnesses, and the court shall hear proof
134-26 and render judgment as in ordinary suits.
134-27 (b) The court shall either approve in whole or in part or
135-1 reject a claim that has been allowed and entered on the claim
135-2 docket for a period of 10 days and shall at the same time classify
135-3 the claim.
135-4 (c) Although a claim may be properly authenticated and
135-5 allowed, if the court is not satisfied that it is just, the court
135-6 shall examine the claimant and the guardian under oath and hear
135-7 other evidence necessary to determine the issue. If after the
135-8 examination and hearing the court is not convinced that the claim
135-9 is just, the court shall disapprove the claim.
135-10 (d) When the court has acted on a claim, the court shall
135-11 endorse on or annex to the claim a written memorandum dated and
135-12 signed officially that states the exact action taken by the court
135-13 on the claim, whether the court approved or disapproved the claim
135-14 or approved in part or rejected in part the claim, and that states
135-15 the classification of the claim. An order under this subsection
135-16 has the force and effect of a final judgment.
135-17 (e) When a claimant or any person interested in a ward is
135-18 dissatisfied with the action of the court on a claim, the claimant
135-19 or person interested may appeal the action to the courts of
135-20 appeals, as from other judgments of the county court in probate
135-21 matters.
135-22 Sec. 800. SUIT ON REJECTED CLAIM. When a claim or a part of
135-23 a claim has been rejected by the guardian, the claimant shall
135-24 institute suit on the claim in the court of original probate
135-25 jurisdiction in which the guardianship is pending or in any other
135-26 court of proper jurisdiction not later than the 90th day after the
135-27 date of the rejection of the claim or the claim is barred. When a
136-1 rejected claim is sued on, the endorsement made on or annexed to
136-2 the claim is taken to be true without further proof, unless denied
136-3 under oath. When a rejected claim or part of a claim has been
136-4 established by suit, no execution shall issue but the judgment
136-5 shall be certified not later than the 30th day after the date of
136-6 rendition if the judgment is from a court other than the court of
136-7 original probate jurisdiction, filed in the court in which the
136-8 cause is pending entered on the claim docket, classified by the
136-9 court, and handled as if originally allowed and approved in due
136-10 course of administration.
136-11 Sec. 801. Presentment of Claims a Prerequisite for Judgment.
136-12 A judgment may not be rendered in favor of a claimant on any claim
136-13 for money that has not been legally presented to the guardian of
136-14 the estate of the ward and rejected by the guardian or by the
136-15 court, in whole or in part.
136-16 Sec. 802. Costs of Suit With Respect to Claims. All costs
136-17 incurred in the probate court with respect to claims are taxed as
136-18 follows:
136-19 (1) if allowed and approved, the guardianship estate
136-20 shall pay the costs;
136-21 (2) if allowed, but disapproved, the claimant shall
136-22 pay the costs;
136-23 (3) if rejected, but established by suit, the
136-24 guardianship estate shall pay the costs;
136-25 (4) if rejected, but not established by suit, the
136-26 claimant shall pay the costs; or
136-27 (5) in suits to establish a claim after rejection in
137-1 part, if the claimant fails to recover judgment for a greater
137-2 amount than was allowed or approved, the claimant shall pay all
137-3 costs.
137-4 Sec. 803. Claims by Guardians. (a) A claim that a guardian
137-5 of the person or estate held against the ward at the time of the
137-6 appointment of the guardian, or that has since accrued, shall be
137-7 verified by affidavit as required in other cases and presented to
137-8 the clerk of the court in which the guardianship is pending. The
137-9 clerk shall enter the claim on the claim docket, after which it
137-10 shall take the same course as other claims.
137-11 (b) When a claim by a guardian has been filed with the court
137-12 within the required time, the claim shall be entered on the claim
137-13 docket and acted on by the court in the same manner as in other
137-14 cases. When the claim has been acted on by the court, an appeal
137-15 from the judgment of the court may be taken as in other cases.
137-16 Sec. 804. Claims Not to Be Paid Unless Approved. Except as
137-17 provided for payment at the risk of a guardian of an
137-18 unauthenticated claim, a claim for money against the estate of a
137-19 ward or any part of a claim may not be paid until it has been
137-20 approved by the court or established by the judgment of a court of
137-21 competent jurisdiction.
137-22 Sec. 805. Order of Payment of Claims. (a) The guardian
137-23 shall pay a claim against the estate of the guardian's ward that
137-24 has been allowed and approved or established by suit, as soon as
137-25 practicable, in the following order:
137-26 (1) expenses for the care, maintenance, and education
137-27 of the ward or the ward's dependents;
138-1 (2) funeral expenses of the ward and expenses of the
138-2 ward's last illness, if the guardianship is kept open after the
138-3 death of the ward as provided under this chapter, except that any
138-4 claim against the estate of a ward that has been allowed and
138-5 approved or established by suit before the death of the ward shall
138-6 be paid before the funeral expenses and expenses of the last
138-7 illness;
138-8 (3) expenses of administration; and
138-9 (4) other claims against the ward or the ward's
138-10 estate.
138-11 (b) A claimant whose claim has not been paid may petition
138-12 the court for determination of the claim at any time before it is
138-13 barred by the applicable statute of limitations and on due proof
138-14 procure an order for its allowance and payment from the estate.
138-15 Sec. 806. Deficiency of Assets. When there is a deficiency
138-16 of assets to pay all claims of the same class, the claims in the
138-17 same class shall be paid pro rata, as directed by the court, and in
138-18 the order directed. A guardian may not be allowed to pay any
138-19 claims, whether the estate is solvent or insolvent, except with the
138-20 pro rata amount of the funds of the guardianship estate that have
138-21 come to hand.
138-22 Sec. 807. GUARDIAN NOT TO PURCHASE CLAIMS. A guardian may
138-23 not purchase for the guardian's own use or for any purposes
138-24 whatsoever a claim against the guardianship the guardian
138-25 represents. On written complaint by a person interested in the
138-26 guardianship estate and satisfactory proof of violation of this
138-27 provision, the court after citation and hearing shall enter its
139-1 order cancelling the claim and no part of the claim shall be paid
139-2 out of the guardianship. The judge may remove the guardian for a
139-3 violation of this section.
139-4 Sec. 808. PROCEEDS OF SALE OF MORTGAGED PROPERTY. When a
139-5 guardian has on hand the proceeds of a sale that has been made for
139-6 the satisfaction of a mortgage or other lien and the proceeds, or
139-7 any part of the proceeds, are not required for the payment of any
139-8 debts against the estate that have a preference over the mortgage
139-9 or other lien, the guardian shall pay the proceeds to a holder of
139-10 the mortgage or other lien. If the guardian fails to pay the
139-11 proceeds as required by this section, the holder, on proof of the
139-12 mortgage or other lien, may obtain an order from the court
139-13 directing the payment to be made.
139-14 Sec. 809. Liability for Nonpayment of Claims. (a) If a
139-15 guardian of an estate fails to pay on demand any money ordered by
139-16 the court to be paid to any person, except to the state treasury,
139-17 when there are funds of the guardianship estate available, the
139-18 person or claimant entitled to the payment, on affidavit of the
139-19 demand and failure to pay, is authorized to have execution issued
139-20 against the property of the guardianship for the amount due, with
139-21 interest and costs.
139-22 (b) On return of the execution not satisfied, or merely on
139-23 the affidavit of demand and failure to pay, the court may cite the
139-24 guardian and the sureties on the bond of the guardian to show cause
139-25 why the guardian or the sureties should not be held liable for the
139-26 debt, interest, costs, or damages. On return of citation duly
139-27 served, if good cause to the contrary is not shown, the court shall
140-1 render judgment against the guardian and sureties that are cited
140-2 under this subsection in favor of the holder of the claim for the
140-3 unpaid amount ordered to be paid or established by suit, with
140-4 interest and costs, and for damages on the amount neglected to be
140-5 paid, at the rate of five percent per month for each month or
140-6 fraction of a month that the payment was neglected to be paid after
140-7 demand was made for payment. The damages may be collected in any
140-8 court of competent jurisdiction.
140-9 SUBPART H. SALES
140-10 Sec. 811. Court Must Order Sales. Except as provided by
140-11 this subpart, the sale of any property of the ward may not be made
140-12 without an order of court authorizing the sale. The court may
140-13 order property sold for cash or on credit, at public auction or
140-14 privately, as it may consider most to the advantage of the estate,
140-15 except when otherwise specifically provided in this chapter.
140-16 Sec. 812. CERTAIN PERSONAL PROPERTY TO BE SOLD. (a) The
140-17 guardian of an estate, after approval of inventory and
140-18 appraisement, shall promptly apply for an order of the court to
140-19 sell at public auction or privately, for cash or on credit not
140-20 exceeding six months, all of the estate that is liable to perish,
140-21 waste, or deteriorate in value or that will be an expense or
140-22 disadvantage to the estate if kept. Property exempt from forced
140-23 sale, a specific legacy, or personal property necessary to carry on
140-24 a farm, ranch, factory, or any other business that it is thought
140-25 best to operate, may not be included in a sale under this section.
140-26 (b) In determining whether to order the sale of an asset
140-27 under Subsection (a) of this section, the court shall consider:
141-1 (1) the guardian's duty to take care of and manage the
141-2 estate as a person of ordinary prudence, discretion, and
141-3 intelligence would exercise in the management of the person's own
141-4 affairs; and
141-5 (2) whether the asset constitutes an asset that a
141-6 trustee is authorized to invest under Section 113.056 or Subchapter
141-7 F, Chapter 113, Property Code.
141-8 Sec. 813. Sales of Other Personal Property. On application
141-9 by the guardian of the estate or by any interested person, the
141-10 court may order the sale of any personal property of the estate not
141-11 required to be sold by Section 812 of this code, including growing
141-12 or harvested crops or livestock but not including exempt property,
141-13 if the court finds that the sale of the property would be in the
141-14 best interests of the ward or the ward's estate in order to pay
141-15 expenses of the care, maintenance, and education of the ward or the
141-16 ward's dependents, expenses of administration, allowances, or
141-17 claims against the ward or the ward's estate, and funeral expenses
141-18 of the ward and expenses of the ward's last illness, if the
141-19 guardianship is kept open after the death of the ward, from the
141-20 proceeds of the sale of the property. Insofar as possible,
141-21 applications and orders for the sale of personal property must
141-22 conform to the requirements set forth under this chapter for
141-23 applications and orders for the sale of real estate.
141-24 Sec. 814. Special Provisions Pertaining to Livestock. When
141-25 the guardian of an estate has in the guardian's possession any
141-26 livestock that the guardian deems necessary or to the advantage of
141-27 the estate to sell, the guardian may, in addition to any other
142-1 method provided by law for the sale of personal property, obtain
142-2 authority from the court in which the estate is pending to sell the
142-3 livestock through a bonded livestock commission merchant or a
142-4 bonded livestock auction commission merchant. On written and sworn
142-5 application by the guardian or by any person interested in the
142-6 estate that describes the livestock sought to be sold and that sets
142-7 out the reasons why it is deemed necessary or to the advantage of
142-8 the estate that the application be granted, the court may authorize
142-9 the sale. The court shall consider the application and may hear
142-10 evidence for or against the application, with or without notice, as
142-11 the facts warrant. If the application is granted, the court shall
142-12 enter its order to that effect and shall authorize delivery of the
142-13 livestock to any bonded livestock commission merchant or bonded
142-14 livestock auction commission merchant for sale in the regular
142-15 course of business. The commission merchant shall be paid his
142-16 usual and customary charges, not to exceed three percent of the
142-17 sale price, for the sale of the livestock. A report of the sale,
142-18 supported by a verified copy of the merchant's account of sale,
142-19 shall be made promptly by the guardian to the court, but no order
142-20 of confirmation by the court is required to pass title to the
142-21 purchaser of the livestock.
142-22 Sec. 815. Sales of Personal Property at Public Auction. All
142-23 sales of personal property at public auction shall be made after
142-24 notice has been issued by the guardian of the estate and posted as
142-25 in case of posting for original proceedings in probate, unless the
142-26 court shall otherwise direct.
142-27 Sec. 816. Sales of Personal Property on Credit. No more
143-1 than six months' credit may be allowed when personal property is
143-2 sold at public auction, based on the date of the sale. The
143-3 purchaser shall be required to give his note for the amount due,
143-4 with good and solvent personal security, before delivery of the
143-5 property can be made to the purchaser, but security may be waived
143-6 if delivery is not to be made until the note, with interest, has
143-7 been paid.
143-8 Sec. 817. SALE OF MORTGAGED PROPERTY. On the filing of a
143-9 written application, a creditor who holds a claim that is secured
143-10 by a valid mortgage or other lien and that has been allowed and
143-11 approved or established by suit may obtain from the court in which
143-12 the guardianship is pending an order that the property, or so much
143-13 of the property as necessary to satisfy the creditor's claim, shall
143-14 be sold. On the filing of the application, the clerk shall issue
143-15 citation requiring the guardian of the estate to appear and show
143-16 cause why an application filed under this section should not be
143-17 granted. If it appears to the court that it would be advisable to
143-18 discharge the lien out of the general assets of the estate or that
143-19 it be refinanced, the court may so order. Otherwise, the court
143-20 shall grant the application and order that the property be sold at
143-21 public or private sale, as the court considers best, as in ordinary
143-22 cases of sales of real estate.
143-23 Sec. 818. Sales of Personal Property Reported; Decree Vests
143-24 Title. All sales of personal property shall be reported to the
143-25 court. The laws regulating the confirmation or disapproval of
143-26 sales of real estate apply to sales of personal property, but no
143-27 conveyance shall be necessary. The decree confirming the sale of
144-1 personal property shall vest the right and title of the estate of
144-2 the ward in the purchaser who has complied with the terms of the
144-3 sale and shall be prima facie evidence that all requirements of the
144-4 law in making the sale have been met. The guardian of an estate
144-5 may, on request, issue a bill of sale without warranty to the
144-6 purchaser as evidence of title. The expense of the bill of sale if
144-7 requested is to be borne by the purchaser.
144-8 Sec. 819. Selection of Real Property Sold for Payment of
144-9 Debts. Real property of the ward that is selected to be sold for
144-10 the payment of expenses or claims shall be that property that the
144-11 court deems most advantageous to the guardianship to be sold.
144-12 Sec. 820. Application for Sale of Real Estate. An
144-13 application may be made to the court for an order to sell real
144-14 property of the estate when it appears necessary or advisable in
144-15 order to:
144-16 (1) pay expenses of administration, allowances, and
144-17 claims against the ward or the ward's estate, and to pay funeral
144-18 expenses of the ward and expenses of the ward's last illness, if
144-19 the guardianship is kept open after the death of the ward;
144-20 (2) make up the deficiency when the income of a ward's
144-21 estate, the personal property of the ward's estate, and the
144-22 proceeds of previous sales, are insufficient to pay for the
144-23 education and maintenance of the ward or to pay debts against the
144-24 estate;
144-25 (3) dispose of property of the ward's estate that
144-26 consists in whole or in part of an undivided interest in real
144-27 estate when it is deemed in the best interests of the estate to
145-1 sell the interest;
145-2 (4) dispose of real estate of a ward, any part of
145-3 which is nonproductive or does not produce sufficient revenue to
145-4 make a fair return on the value of the real estate, when the
145-5 improvement of the real estate with a view to making it productive
145-6 is not deemed advantageous or advisable and it appears that the
145-7 sale of the real estate and the investment of the money derived
145-8 from the sale of the real estate would be in the best interests of
145-9 the estate; or
145-10 (5) conserve the estate of a ward by selling mineral
145-11 interest or royalties on minerals in place owned by a ward.
145-12 Sec. 821. CONTENTS OF APPLICATION FOR SALE OF REAL ESTATE.
145-13 An application for the sale of real estate shall be in writing,
145-14 must describe the real estate or an interest in or part of the real
145-15 estate sought to be sold, and shall be accompanied by an exhibit,
145-16 verified by affidavit that shows fully and in detail:
145-17 (1) the condition of the estate;
145-18 (2) the charges and claims that have been approved or
145-19 established by suit, or that have been rejected and may be
145-20 established later;
145-21 (3) the amount of each claim that has been approved or
145-22 established by suit, or that has been rejected but may be
145-23 established later;
145-24 (4) the property of the estate remaining on hand
145-25 liable for the payment of those claims; and
145-26 (5) any other facts that show the necessity or
145-27 advisability of the sale.
146-1 Sec. 822. Setting of Hearing on Application. When an
146-2 application for the sale of real estate is filed, it shall
146-3 immediately be called to the attention of the judge by the clerk.
146-4 The judge shall designate in writing a day for hearing the
146-5 application, any opposition to the application, and any application
146-6 for the sale of other land, with the evidence pertaining to the
146-7 application. The judge may, by entries on the docket, continue the
146-8 hearing from time to time until the judge is satisfied concerning
146-9 the application.
146-10 Sec. 823. CITATION AND RETURN ON APPLICATION. On the filing
146-11 of an application for the sale of real estate under Section 820 of
146-12 this code and exhibit, the clerk shall issue a citation to all
146-13 persons interested in the guardianship that describes the land or
146-14 interest or part of the land or interest sought to be sold and that
146-15 requires the persons to appear at the time set by the court as
146-16 shown in the citation and show cause why the sale should not be
146-17 made, if they so elect. Service of citation shall be by posting.
146-18 Sec. 824. Opposition to Application. When an application
146-19 for an order of sale is made, a person interested in the
146-20 guardianship, before an order of sale is made by the court, may
146-21 file the person's opposition to the sale, in writing, or may make
146-22 application for the sale of other property of the estate.
146-23 Sec. 825. ORDER OF SALE. If satisfied on hearing that the
146-24 sale of the property of the guardianship described in the
146-25 application made under Section 820 of this code is necessary or
146-26 advisable, the court shall order the sale to be made. Otherwise,
146-27 the court may deny the application and, if the court deems best,
147-1 may order the sale of other property the sale of which would be
147-2 more advantageous to the estate. An order for the sale of real
147-3 estate must specify:
147-4 (1) the property to be sold, giving a description that
147-5 will identify the property;
147-6 (2) whether the property is to be sold at public
147-7 auction or at private sale, and, if at public auction, the time and
147-8 place of the sale;
147-9 (3) the necessity or advisability of the sale and its
147-10 purpose;
147-11 (4) except in cases in which no general bond is
147-12 required, that, having examined the general bond of the
147-13 representative of the estate, the court finds it to be sufficient
147-14 as required by law, or finds the bond to be insufficient and
147-15 specifies the necessary or increased bond;
147-16 (5) that the sale shall be made and the report
147-17 returned in accordance with law; and
147-18 (6) the terms of the sale.
147-19 Sec. 826. Procedure When Guardian Neglects to Apply for
147-20 Sale. When the guardian of an estate neglects to apply for an
147-21 order to sell sufficient property to pay the charges and claims
147-22 against the estate that have been allowed and approved or
147-23 established by suit, an interested person, on written application,
147-24 may cause the guardian to be cited to appear and make a full
147-25 exhibit of the condition of the estate, and show cause why a sale
147-26 of the property should not be ordered. On hearing an application
147-27 made under this section, if the court is satisfied that a sale of
148-1 the property is necessary or advisable in order to satisfy the
148-2 claims, it shall enter an order of sale as provided by Section 825
148-3 of this code.
148-4 Sec. 827. Permissible Terms of Sale of Real Estate. (a)
148-5 The real estate may be sold for cash, or for part cash and part
148-6 credit, or the equity in land securing an indebtedness may be sold
148-7 subject to the indebtedness, or with an assumption of the
148-8 indebtedness, at public or private sale, as appears to the court to
148-9 be in the best interests of the estate. When real estate is sold
148-10 partly on credit, the cash payment may not be less than one-fifth
148-11 of the purchase price, and the purchaser shall execute a note for
148-12 the deferred payments payable in monthly, quarterly, semiannual or
148-13 annual installments, of the amounts as appear to the court to be
148-14 for the best interests of the guardianship, to bear interest from
148-15 date at a rate of not less than four percent per annum, payable as
148-16 provided in the note. Default in the payment of principal or
148-17 interest, or any part of the payment when due, at the election of
148-18 the holder of the note, matures the whole debt. The note shall be
148-19 secured by vendor's lien retained in the deed and in the note on
148-20 the property sold and shall be further secured by deed of trust on
148-21 the property sold, with the usual provisions for foreclosure and
148-22 sale on failure to make the payments provided in the deed and the
148-23 note.
148-24 (b) When an estate owning real estate by virtue of
148-25 foreclosure of a vendor's lien or mortgage belonging to the estate
148-26 either by judicial sale or by a foreclosure suit, by sale under
148-27 deed of trust, or by acceptance of a deed in cancellation of a lien
149-1 or mortgage owned by the estate, and it appears to the court that
149-2 an application to redeem the property foreclosed on has been made
149-3 by the former owner of the real estate to any corporation or agency
149-4 created by any act of the Congress of the United States or of this
149-5 state in connection with legislation for the relief of owners of
149-6 mortgaged or encumbered homes, farms, ranches, or other real estate
149-7 and that it would be in the best interests of the estate to own
149-8 bonds of one of the above named federal or state corporations or
149-9 agencies instead of the real estate, then on proper application and
149-10 proof, the court may dispense with the provisions of credit sales
149-11 as provided by Subsection (a) of this section, and may order
149-12 reconveyance of the property to the former mortgage debtor, or
149-13 former owner, reserving vendor's lien notes for the total amount of
149-14 the indebtedness due or for the total amount of bonds that the
149-15 corporation or agency above named is under its rules and
149-16 regulations allowed to advance. On obtaining the order, it shall
149-17 be proper for the guardian to endorse and assign the notes so
149-18 obtained over to any one of the corporations or agencies above
149-19 named in exchange for bonds of that corporation or agency.
149-20 Sec. 828. Public Sale of Real Estate. (a) Except as
149-21 otherwise provided by this chapter, all public sales of real estate
149-22 shall be advertised by the guardian of the estate by a notice
149-23 published in the county in which the estate is pending, as provided
149-24 by this chapter for publication of notices or citations. A
149-25 reference in the notice shall be made to the order of sale, the
149-26 time, place, and the required terms of sale, and a brief
149-27 description of the property to be sold. A reference made under
150-1 this section does not have to contain field notes, but if the real
150-2 estate consists of rural property, the name of the original survey,
150-3 the number of acres, its locality in the county, and the name by
150-4 which the land is generally known must be contained in the
150-5 reference.
150-6 (b) All public sales of real estate shall be made at public
150-7 auction to the highest bidder.
150-8 (c) All public sales of real estate shall be made in the
150-9 county in which the guardianship proceedings are pending, at the
150-10 courthouse door of the county, or at another place in the county
150-11 where sales of real estate are specifically authorized to be made,
150-12 on the first Tuesday of the month after publication of notice has
150-13 been completed, between the hours of 10 a.m. and 4 p.m. If deemed
150-14 advisable by the court, the court may order the sale to be made in
150-15 the county in which the land is located, in which event notice
150-16 shall be published both in that county and in the county in which
150-17 the proceedings are pending.
150-18 (d) If a sale is not completed on the day advertised, the
150-19 sale may be continued from day to day by making an oral public
150-20 announcement of the continuance at the conclusion of the sale each
150-21 day. The continued sale is to be made within the same hours as
150-22 prescribed by Subsection (c) of this section. If sales are so
150-23 continued, the fact shall be shown in the report of sale made to
150-24 the court.
150-25 (e) When a person who bids on property of a guardianship
150-26 estate offered for sale at public auction fails to comply with the
150-27 terms of sale, the property shall be readvertised and sold without
151-1 any further order. The person who defaults shall be liable to pay
151-2 to the guardian of the estate, for the benefit of the estate, 10
151-3 percent of the amount of the person's bid and any deficiency in
151-4 price on the second sale. The guardian shall recover the amounts
151-5 by suit in any court in the county in which the sale was made that
151-6 has jurisdiction over the amount claimed.
151-7 Sec. 829. Private Sale of Real Estate. All private sales of
151-8 real estate shall be made in the manner the court directs in its
151-9 order of sale, and no further advertising, notice, or citation
151-10 concerning the sale shall be required unless the court shall direct
151-11 otherwise.
151-12 Sec. 830. Sales of Easements and Rights of Way. The
151-13 guardian may sell and convey easements and rights of way on, under,
151-14 and over the land of a guardianship estate that is being
151-15 administered under orders of a court, regardless of whether the
151-16 proceeds of the sale are required for payment of charges or claims
151-17 against the estate, or for other lawful purposes. The procedure
151-18 for the sale is the same as provided by law for a sale of real
151-19 property of wards at private sale.
151-20 Sec. 831. Guardian Purchasing Property of the Estate. (a)
151-21 Except as provided by Subsection (b) or (c) of this section, the
151-22 guardian of an estate may not purchase, directly or indirectly, any
151-23 property of the estate sold by the guardian, or by any
151-24 co-representative of a guardian.
151-25 (b) A guardian may purchase property from the estate in
151-26 compliance with the terms of a written executory contract signed by
151-27 the ward before the ward became incapacitated, including a contract
152-1 for deed, earnest money contract, buy/sell agreement, or stock
152-2 purchase or redemption agreement.
152-3 (c) After issuing the notice required by this subsection, a
152-4 guardian of an estate may purchase property from the estate on the
152-5 court's determination that the sale is in the best interest of the
152-6 estate. The guardian shall give notice by certified mail, return
152-7 receipt requested, unless the court requires another form of
152-8 notice, to each distributee of a deceased person's estate and to
152-9 each creditor whose claim remains unsettled after presenting a
152-10 claim within six months of the original grant of letters. In the
152-11 case of an application filed by the guardian of the estate of a
152-12 ward, the court shall appoint an attorney ad litem to represent the
152-13 ward with respect to the sale. The court may require additional
152-14 notice or it may allow for the waiver of the notice required for a
152-15 sale made under this subsection.
152-16 (d) If a purchase is made in violation of this section, a
152-17 person interested in the estate may file a written complaint with
152-18 the court in which the guardianship proceedings are pending. On
152-19 service of citation on the guardian and after hearing and proof,
152-20 the court shall declare the sale void, set aside the sale, and
152-21 order that the property be reconveyed to the estate. All costs of
152-22 the sale, protest, and suit, if found necessary, shall be adjudged
152-23 against the guardian.
152-24 Sec. 832. REPORT OF SALE. A sale of real property of an
152-25 estate shall be reported to the court that orders the sale not
152-26 later than the 30th day after the date the sale is made. A report
152-27 must be in writing, sworn to, filed with the clerk, and noted on
153-1 the probate docket. A report made under this section must contain:
153-2 (1) the date of the order of sale;
153-3 (2) a description of the property sold;
153-4 (3) the time and place of sale;
153-5 (4) the name of the purchaser;
153-6 (5) the amount for which each parcel of property or
153-7 interest in the parcel of property was sold;
153-8 (6) the terms of the sale, and whether the sale was
153-9 private or made at a public auction; and
153-10 (7) whether the purchaser is ready to comply with the
153-11 order of sale.
153-12 Sec. 833. BOND ON SALE OF REAL ESTATE. If the guardian of
153-13 the estate is not required by this chapter to furnish a general
153-14 bond, the court may confirm the sale if the court finds the sale is
153-15 satisfactory and in accordance with law. Otherwise, before a sale
153-16 of real estate is confirmed, the court shall determine whether the
153-17 general bond of the guardian is sufficient to protect the estate
153-18 after the proceeds of the sale are received. If the court finds
153-19 the bond is sufficient, the court may confirm the sale. If the
153-20 general bond is found by the court to be insufficient, the court
153-21 may not confirm the sale until the general bond is increased to the
153-22 amount required by the court, or an additional bond is given and
153-23 approved by the court. The increase in the amount of the bond, or
153-24 the additional bond, shall be equal to the amount for which the
153-25 real estate is sold in addition to any additional sum the court
153-26 finds necessary and sets for the protection of the estate. If the
153-27 real estate sold is encumbered by a lien to secure a claim against
154-1 the estate, is sold to the owner or holder of the secured claim,
154-2 and is in full payment, liquidation, and satisfaction of the claim,
154-3 an increased general bond or additional bond may not be required
154-4 except for the amount of cash actually paid to the guardian of the
154-5 estate in excess of the amount necessary to pay, liquidate, and
154-6 satisfy the claim in full.
154-7 Sec. 834. ACTION OF COURT ON REPORT OF SALE. After the
154-8 expiration of five days from the date a report of sale is filed
154-9 under Section 832 of this code, the court shall inquire into the
154-10 manner in which the sale was made, hear evidence in support of or
154-11 against the report, and determine the sufficiency or insufficiency
154-12 of the guardian's general bond, if any has been required and given.
154-13 If the court is satisfied that the sale was for a fair price, was
154-14 properly made, and conforms with the law and the court has approved
154-15 any increased or additional bond that may have been found necessary
154-16 to protect the estate, the court shall enter a decree confirming
154-17 the sale showing conformity with other provisions of this chapter
154-18 relating to the sale and authorizing the conveyance of the property
154-19 to be made by the guardian of the estate on compliance by the
154-20 purchaser with the terms of the sale, detailing those terms. If
154-21 the court is not satisfied that the sale was for a fair price, was
154-22 properly made, and conforms with the law, the court shall issue an
154-23 order that sets the sale aside and order a new sale to be made, if
154-24 necessary. The action of the court in confirming or disapproving a
154-25 report of sale has the force and effect of a final judgment. Any
154-26 person interested in the guardianship estate or in the sale has the
154-27 right to have the decrees reviewed as in other final judgments in
155-1 probate proceedings.
155-2 Sec. 835. DEED CONVEYS TITLE TO REAL ESTATE. When real
155-3 estate is sold, the conveyance of real estate shall be by proper
155-4 deed that refers to and identifies the decree of the court that
155-5 confirmed the sale. The deed shall vest in the purchaser all
155-6 right, title, and interest of the estate to the property and shall
155-7 be prima facie evidence that the sale has met all applicable
155-8 requirements of the law.
155-9 Sec. 836. Delivery of Deed, Vendor's Lien, and Deed of Trust
155-10 Lien. After a sale is confirmed by the court and one purchaser has
155-11 complied with the terms of sale, the guardian of the estate shall
155-12 execute and deliver to the purchaser a proper deed conveying the
155-13 property. If the sale is made partly on credit, the vendor's lien
155-14 securing a purchase money note shall be expressly retained in the
155-15 deed and may not be waived. Before actual delivery of the deed to
155-16 the purchaser, the purchaser shall execute and deliver to the
155-17 guardian of the estate a vendor's lien note, with or without
155-18 personal sureties as the court has ordered and a deed of trust or
155-19 mortgage on the property as further security for the payment of the
155-20 note. On completion of the transaction, the guardian shall
155-21 promptly file and record in the appropriate records in the county
155-22 where the land is located the deed of trust or mortgage.
155-23 Sec. 837. PENALTY FOR NEGLECT. If the guardian of an estate
155-24 neglects to comply with Section 836 of this code or fails to file
155-25 the deed of trust securing the lien in the proper county, the
155-26 guardian, after complaint and citation, may be removed. The
155-27 guardian and the sureties on the bond of the guardian shall be held
156-1 liable for the use of the estate and for all damages resulting from
156-2 the neglect of the guardian. Damages under this section may be
156-3 recovered in a court of competent jurisdiction.
156-4 SUBPART I. HIRING AND RENTING
156-5 Sec. 839. Hiring or Renting Without Order of Court. The
156-6 guardian of an estate, without court order, may rent any real
156-7 property of the estate or hire out any personal property of the
156-8 estate for one year or less, either at public auction or privately,
156-9 as may be deemed in the best interests of the estate.
156-10 Sec. 840. LIABILITY OF GUARDIAN. If property of the
156-11 guardianship estate is hired or rented without court order, on the
156-12 sworn complaint of any person interested in the estate, the
156-13 guardian of the estate shall be required to account to the estate
156-14 for the reasonable value of the hire or rent of the property to be
156-15 ascertained by the court on satisfactory evidence.
156-16 Sec. 841. ORDER TO HIRE OR RENT. A guardian of an estate
156-17 may file a written application with the court setting forth the
156-18 property sought to be hired or rented. If the proposed rental
156-19 period is one year or more, the guardian of the estate shall file a
156-20 written application with the court setting forth the property
156-21 sought to be hired or rented. If the court finds that it would be
156-22 in the interests of the estate, the court shall grant the
156-23 application and issue an order that describes the property to be
156-24 hired or rented and states whether the hiring or renting shall be
156-25 at public auction or privately, whether for cash or on credit, and,
156-26 if on credit, the extent of the credit and the period for which the
156-27 property may be rented. If the property is to be hired or rented
157-1 at public auction, the court shall prescribe whether notice shall
157-2 be published or posted.
157-3 Sec. 842. PROCEDURE IN CASE OF NEGLECT TO RENT PROPERTY. A
157-4 person interested in a guardianship may file a written and sworn
157-5 complaint in a court in which the estate is pending and cause the
157-6 guardian of the estate to be cited to appear and show cause why the
157-7 guardian did not hire or rent any property of the estate. The
157-8 court, on hearing the complaint, shall make an order that is in the
157-9 best interests of the estate.
157-10 Sec. 843. PROPERTY HIRED OR RENTED ON CREDIT. When property
157-11 is hired or rented on credit, possession of the property may not be
157-12 delivered until the hirer or renter has executed and delivered to
157-13 the guardian of the estate a note with good personal security for
157-14 the amount of the hire or rental. If the property that is hired or
157-15 rented is delivered without the receipt of the security required
157-16 under this section, the guardian and the sureties on the bond of
157-17 the guardian shall be liable for the full amount of the hire or
157-18 rental. This section does not apply to a hire or rental that is
157-19 paid in installments in advance of the period of time to which they
157-20 relate.
157-21 Sec. 844. PROPERTY HIRED OR RENTED RETURNED IN GOOD
157-22 CONDITION. All property that is hired or rented, with or without a
157-23 court order, shall be returned to the possession of the
157-24 guardianship in as good a condition, reasonable wear and tear
157-25 excepted, as when the property was hired or rented. It shall be
157-26 the duty and responsibility of the guardian of the estate to see
157-27 that the property is returned as provided by this section, to
158-1 report to the court any loss, damage, or destruction of property
158-2 that is hired or rented under this chapter, and to ask for
158-3 authority to take action as is necessary. If the guardian fails to
158-4 act as required by this section, the guardian and the sureties on
158-5 the bond of the guardian shall be liable to the guardianship for
158-6 any loss or damage suffered through the fault of the guardian to
158-7 act as required under this section.
158-8 Sec. 845. REPORT OF HIRING OR RENTING. (a) When any
158-9 property of the guardianship estate with an appraised value of
158-10 $3,000 or more has been hired or rented, the guardian of the
158-11 estate, not later than the 30th day after the date of the hire or
158-12 rental, shall file with the court a sworn and written report that
158-13 states:
158-14 (1) the property involved and its appraised value;
158-15 (2) the date of hiring or renting, and whether at
158-16 public auction or privately;
158-17 (3) the name of the person who hired or rented the
158-18 property;
158-19 (4) the amount of the hiring or rental; and
158-20 (5) whether the hiring or rental was for cash or on
158-21 credit, and, if on credit, the length of time, the terms, and the
158-22 security taken for the hiring or rental.
158-23 (b) When the value of the property involved is less than
158-24 $3,000, the hiring or renting of the property may be reported in
158-25 the next annual or final account that is to be filed as required by
158-26 law.
158-27 Sec. 846. Court Action on Report. After five days from the
159-1 time the report of the hiring or rental is filed, the court shall
159-2 examine the report and shall approve and confirm the hiring or
159-3 rental by court order if the court finds the hire or rental just
159-4 and reasonable. If the court disapproves the hiring or rental, the
159-5 guardianship may not be bound and the court may order another
159-6 offering of the property for hire or rent in the same manner and
159-7 subject to the same rules provided in this chapter for property for
159-8 hire or rent. If the report has been approved by the court and it
159-9 later appears that, due to the fault of the guardian of the estate,
159-10 the property has not been hired or rented for its reasonable value,
159-11 the court shall cause the guardian of the estate and the sureties
159-12 on the bond of the guardian to appear and show cause why the
159-13 reasonable value of the hire or rental of the property should not
159-14 be adjudged against the guardian or sureties.
159-15 SUBPART J. MINERAL LEASES, POOLING OR UNITIZATION AGREEMENTS,
159-16 AND OTHER MATTERS RELATING TO MINERAL PROPERTIES
159-17 Sec. 847. MINERAL LEASES AFTER PUBLIC NOTICE. (a) In this
159-18 subpart:
159-19 (1) "Land" or "interest in land" includes minerals or
159-20 any interest in any of the minerals in place.
159-21 (2) "Mineral development" includes exploration, by
159-22 geophysical or by any other means, drilling, mining, developing,
159-23 and operating, and producing and saving oil, other liquid
159-24 hydrocarbons, gas (including all liquid hydrocarbons in the gaseous
159-25 phase in the reservoir), gaseous elements, sulphur, metals, and all
159-26 other minerals, solid or otherwise.
159-27 (3) "Property" includes land, minerals in place,
160-1 whether solid, liquid, or gaseous, as well as an interest of any
160-2 kind in the property, including royalty, owned by the estate.
160-3 (b) A guardian acting solely under an order of a court, may
160-4 be authorized by the court in which the guardianship proceeding is
160-5 pending to make, execute, and deliver leases, with or without
160-6 unitization clauses or pooling provisions, that provide for the
160-7 exploration for, and development and production of, oil, other
160-8 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
160-9 gaseous phase), metals, and other solid minerals, and other
160-10 minerals, or any of those minerals in place, belonging to the
160-11 estate.
160-12 (c) All leases authorized by Subsection (b) of this section,
160-13 with or without pooling provisions or unitization clauses, shall be
160-14 made and entered into pursuant to and in conformity with
160-15 Subsections (d)-(m) of this section.
160-16 (d) The guardian of the estate shall file a written
160-17 application with the court seeking authority to lease property of
160-18 the estate for mineral exploration and development, with or without
160-19 pooling provisions or unitization clauses. The name of any
160-20 proposed lessee or the terms, provisions, or form of any desired
160-21 lease do not need to be set out or suggested in the application.
160-22 The application shall:
160-23 (1) describe the property fully enough by reference to
160-24 the amount of acreage, the survey name or number, abstract number,
160-25 or other description that adequately identifies the property and
160-26 its location in the county in which the property is located;
160-27 (2) specify the interest thought to be owned by the
161-1 estate if less than the whole, but asking for authority to include
161-2 all interest owned by the estate if that is the intention; and
161-3 (3) set out the reasons why the particular property of
161-4 the estate should be leased.
161-5 (e) When an application to lease is filed, under this
161-6 section, the county clerk shall immediately call the filing of the
161-7 application to the attention of the court. The judge shall
161-8 promptly make and enter a brief order designating the time and
161-9 place for the hearing of the application. If the hearing does not
161-10 take place at the time originally designated by the court or by
161-11 timely order of continuance duly entered, the hearing shall be
161-12 automatically continued without further notice to the same hour or
161-13 time the following day, except Sundays and holidays on which the
161-14 county courthouse is officially closed to business, and from day to
161-15 day until the application is finally acted on and disposed of by
161-16 order of the court. No notice of the automatic continuance shall
161-17 be required.
161-18 (f) The guardian shall give written notice directed to all
161-19 persons interested in the estate of the time designated by the
161-20 judge for the hearing on the application to lease. The notice must
161-21 be dated, state the date on which the application was filed,
161-22 describe briefly the property sought to be leased, specify the
161-23 fractional interest sought to be leased if less than the entire
161-24 interest in the tract identified, and state the time and place
161-25 designated by the judge for the hearing. Exclusive of the date of
161-26 notice and of the date set for hearing, the guardian shall give at
161-27 least 10 days' notice by publishing in one issue of a newspaper of
162-1 general circulation in the county in which the proceeding is
162-2 pending or by posting if there is no newspaper in the county.
162-3 Posting under this section may be done at the guardian's instance.
162-4 The date of notice when published shall be the date the newspaper
162-5 bears.
162-6 (g) A court order authorizing any acts to be performed
162-7 pursuant to the application is null and void in the absence of:
162-8 (1) a written order originally designating a time and
162-9 place for hearing;
162-10 (2) a notice issued by the guardian of the estate in
162-11 compliance with the order; and
162-12 (3) proof of publication or posting of the notice as
162-13 required.
162-14 (h) At the time and place designated for the hearing, or at
162-15 any time to which the hearing has been continued as provided by
162-16 this section, the judge shall hear the application and require
162-17 proof as to the necessity or advisability of leasing for mineral
162-18 development the property described in the application and in the
162-19 notice. If the judge is satisfied that the application is in due
162-20 form, that notice has been duly given in the manner and for the
162-21 time required by law, that the proof of necessity or advisability
162-22 of leasing is sufficient, and that the application should be
162-23 granted, the judge shall enter an order so finding and authorizing
162-24 the making of one or more leases, with or without pooling
162-25 provisions or unitization clauses (with or without cash
162-26 consideration if deemed by the court to be in the best interest of
162-27 the estate) that affects and covers the property or portions of the
163-1 property described in the application. The order that authorizes
163-2 the leasing must also set out the following mandatory contents:
163-3 (1) the name of the lessee;
163-4 (2) the actual cash consideration, if any, to be paid
163-5 by the lessee;
163-6 (3) a finding that the guardian is exempt by law from
163-7 giving bond if that is a fact, and if the guardian is required to
163-8 give a bond, then a finding as to whether or not the guardian's
163-9 general bond on file is sufficient to protect the personal property
163-10 on hand, inclusive of any cash bonus to be paid; but if the court
163-11 finds the general bond is insufficient to meet these requirements,
163-12 the order shall show the amount of increased or additional bond
163-13 required to cover the deficiency;
163-14 (4) a complete exhibit copy, either written or
163-15 printed, of each lease authorized to be made, either set out in,
163-16 attached to, incorporated by reference in, or made a part of the
163-17 order.
163-18 (i) An exhibit copy must show the name of the lessee, the
163-19 date of the lease, an adequate description of the property being
163-20 leased, the delay rental, if any, to be paid to defer commencement
163-21 of operations, and all other terms and provisions authorized. If
163-22 no date of the lease appears in the exhibit copy or in the court's
163-23 order, then the date of the court's order is considered for all
163-24 purposes as the date of the authorized lease. If the name and
163-25 address of a depository bank for receiving rental is not shown in
163-26 the exhibit copy, the name or address of the depository bank may be
163-27 inserted or caused to be inserted in the lease by the estate's
164-1 guardian at the time of its execution or at any other time
164-2 agreeable to the lessee, his successors, or assigns.
164-3 (j) On the hearing of an application for authority to lease,
164-4 if the court grants the authority to lease, the guardian of the
164-5 estate is fully authorized to make, not later than the 30th day
164-6 after the date of the judge's order, unless an extension is granted
164-7 by the court on a sworn application showing good cause, the lease
164-8 as evidenced by the true exhibit copies in accordance with the
164-9 order. Unless the guardian is not required to give a general
164-10 bond, a lease for which a cash consideration is required, though
164-11 ordered, executed, and delivered, is not valid unless the order
164-12 authorizing the lease actually makes a finding with respect to the
164-13 general bond. If the general bond has been found insufficient, the
164-14 lease is not valid until the bond has been increased or an
164-15 additional bond given with the sureties required by law as required
164-16 by the court order, has been approved by the judge, and has been
164-17 filed with the clerk of the court in which the proceeding is
164-18 pending. If two or more leases on different lands are authorized
164-19 by the same order, the general bond shall be increased or
164-20 additional bonds given to cover all. It is not necessary for the
164-21 judge to make any order confirming the leases.
164-22 (k) Every lease when executed and delivered in compliance
164-23 with the rules set out in this section shall be valid and binding
164-24 on the property or interest owned by the estate and covered by the
164-25 lease for the full duration of the term as provided in the lease
164-26 and is subject only to its terms and conditions even though the
164-27 primary term extends beyond the date when the estate is closed in
165-1 accordance with law. In order for a lease to be valid and binding
165-2 on the property or interest owned by the estate under this section,
165-3 the authorized primary term in the lease may not exceed five years,
165-4 subject to terms and provisions of the lease extending it beyond
165-5 the primary term by paying production, by bona fide drilling or
165-6 reworking operations, whether in or on the same or additional well
165-7 or wells with no cessation of operations of more than 60
165-8 consecutive days before production has been restored or obtained,
165-9 or by the provisions of the lease relating to a shut-in gas well.
165-10 (l) As to any existing valid mineral lease executed and
165-11 delivered in compliance with this chapter before September 1, 1993,
165-12 a provision of the lease continuing the lease in force after its
165-13 five-year primary term by a shut-in gas well is validated, unless
165-14 the validity of the provision is an issue in a lawsuit pending in
165-15 this state on September 1, 1993.
165-16 (m) Any oil, gas, and mineral lease executed by a guardian
165-17 under this chapter may be amended by an instrument that provides
165-18 that a shut-in gas well on the land covered by the lease or on land
165-19 pooled with all or some part of the land covered by the lease shall
165-20 continue the lease in force after its five-year primary term. The
165-21 instrument shall be executed by the guardian, with court approval,
165-22 and on the terms and conditions as may be prescribed in the
165-23 instrument.
165-24 Sec. 848. MINERAL LEASES AT PRIVATE SALE.
165-25 (a) Notwithstanding the mandatory requirements for setting a time
165-26 and place for hearing of an application to lease under Section 847
165-27 of this code and the issuance, service, and return of notice, the
166-1 court may authorize the making of oil, gas, and mineral leases at
166-2 private sale without public notice or advertising if, in the
166-3 opinion of the court, sufficient facts are set out in the
166-4 application to show that it would be more advantageous to the
166-5 estate that a lease be made privately and without compliance with
166-6 the mandatory requirements under Section 847 of this code. Leases
166-7 authorized under this section may include pooling provisions or
166-8 unitization clauses as in other cases.
166-9 (b) At any time after the expiration of five days and before
166-10 the expiration of the 10th day after the date of filing and without
166-11 an order setting the time and place of hearing, the court shall
166-12 hear the application to lease at a private sale. The court shall
166-13 inquire into the manner in which the proposed lease has been or
166-14 will be made and shall hear evidence for or against the
166-15 application. If the court is satisfied that the lease has been or
166-16 will be made for a fair and sufficient consideration and on fair
166-17 terms and has been or will be properly made in conformity with the
166-18 law, the court shall enter an order authorizing the execution of
166-19 the lease without the necessity of advertising, notice, or
166-20 citation. An order entered under this subsection must comply in
166-21 all other respects with the requirements essential to the validity
166-22 of mineral leases set out in this chapter as if advertising or
166-23 notice were required. An order that confirms a lease made at a
166-24 private sale does not need to be issued. A lease made at a private
166-25 sale is not valid until the increased or additional bond required
166-26 by the court, if any, has been approved by the court and filed with
166-27 the clerk of the court.
167-1 Sec. 849. Pooling or Unitization of Royalty or Minerals.
167-2 (a) When an existing lease on property owned by the estate does
167-3 not adequately provide for pooling or unitization, the court may
167-4 authorize the commitment of royalty or mineral interests in oil,
167-5 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
167-6 gaseous phase in the reservoir), gaseous elements, and other
167-7 minerals or any one or more of them owned by the estate being
167-8 administered to agreements that provide for the operation of areas
167-9 as a pool or unit for the exploration, development, and production
167-10 of all those minerals, if the court finds that the pool or unit to
167-11 which the agreement relates will be operated in such a manner as to
167-12 protect correlative rights, or to prevent the physical or economic
167-13 waste of oil, liquid hydrocarbons, gas (including all liquid
167-14 hydrocarbons in the gaseous phase in the reservoir), gaseous
167-15 elements, or other mineral subject thereto, and that it is in the
167-16 best interests of the estate to execute the agreement. Any
167-17 agreement so authorized to be executed may provide that:
167-18 (1) operations incident to the drilling of or
167-19 production from a well on any portion of a pool or unit are deemed
167-20 for all purposes to be the conduct of operations on or production
167-21 from each separately owned tract in the pool or unit;
167-22 (2) any lease covering any part of the area committed
167-23 to a pool or unit shall continue in force in its entirety as long
167-24 as oil, gas, or other mineral subject to the agreement is produced
167-25 in paying quantities from any part of the pooled or unitized area,
167-26 as long as operations are conducted as provided in the lease on any
167-27 part of the pooled or unitized area, or as long as there is a
168-1 shut-in gas well on any part of the pooled or unitized area if the
168-2 presence of the shut-in gas well is a ground for continuation of
168-3 the lease on the terms of the lease;
168-4 (3) the production allocated by the agreement to each
168-5 tract included in a pool or unit shall, when produced, be deemed
168-6 for all purposes to have been produced from the tract by a well
168-7 drilled on the tract;
168-8 (4) the royalties provided for on production from any
168-9 tract or portion of a tract within the pool or unit shall be paid
168-10 only on that portion of the production allocated to the tract in
168-11 accordance with the agreement;
168-12 (5) the dry gas, before or after extraction of
168-13 hydrocarbons, may be returned to a formation underlying any lands
168-14 or leases committed to the agreement, and that no royalties are
168-15 required to be paid on the gas so returned; and
168-16 (6) gas obtained from other sources or another tract
168-17 of land may be injected into a formation underlying any land or
168-18 lease committed to the agreement, and that no royalties are
168-19 required to be paid on the gas so injected when same is produced
168-20 from the unit.
168-21 (b) Pooling or unitization, when not adequately provided for
168-22 by an existing lease on property owned by the estate, may be
168-23 authorized by the court in which the proceeding is pending pursuant
168-24 to and in conformity with Subsections (c)-(g) of this section.
168-25 (c) The guardian of the estate shall file with the county
168-26 clerk of the county in which the guardianship proceeding is pending
168-27 the guardian's written application for authority to enter into a
169-1 pooling or unitization agreement supplementing, amending, or
169-2 otherwise relating to, any existing lease covering property owned
169-3 by the estate, or to commit royalties or other interest in
169-4 minerals, whether subject to lease or not, to a pooling or
169-5 unitization agreement. The application must also describe the
169-6 property sufficiently as required in the original application to
169-7 lease, describe briefly the lease to which the interest of the
169-8 estate is subject, and set out the reasons the proposed agreement
169-9 concerning the property should be made. A true copy of the
169-10 proposed agreement shall be attached to the application and by
169-11 reference made a part of the application, but the agreement may not
169-12 be recorded in the minutes. The clerk shall immediately, after the
169-13 application is filed, call it to the attention of the judge.
169-14 (d) Notice of the filing of the application by advertising,
169-15 citation, or otherwise is not required.
169-16 (e) The judge may hold a hearing on the application at a
169-17 time that is agreeable to the parties to the proposed agreement.
169-18 The judge shall hear proof and be satisfied as to whether it is in
169-19 the best interests of the estate that the proposed agreement be
169-20 authorized. The hearing may be continued from day to day and from
169-21 time to time as the court finds to be necessary.
169-22 (f) If the court finds that the pool or unit to which the
169-23 agreement relates will be operated in such a manner as to protect
169-24 correlative rights or to prevent the physical or economic waste of
169-25 oil, liquid hydrocarbons, gas (including all liquid hydrocarbons in
169-26 the gaseous phase in the reservoir), gaseous elements, or other
169-27 mineral subject to the pool or unit, that it is in the best
170-1 interests of the estate that the agreement be executed, and that
170-2 the agreement conforms substantially with the permissible
170-3 provisions of Subsection (a) of this section, the court shall enter
170-4 an order setting out the findings made by the court and authorizing
170-5 execution of the agreement, with or without payment of cash
170-6 consideration according to the agreement. If cash consideration is
170-7 to be paid for the agreement, the court shall make a finding as to
170-8 the necessity of increased or additional bond as a finding is made
170-9 in the making of leases on payment of the cash bonus for the lease.
170-10 The agreement is not valid until the increased or additional bond
170-11 required by the court, if any, has been approved by the judge and
170-12 filed with the clerk. If the date is not stipulated in the
170-13 agreement, the date of the court's order shall be the effective
170-14 date of the agreement.
170-15 Sec. 850. Special Ancillary Instruments Executed Without
170-16 Court Order. As to any valid mineral lease or pooling or
170-17 unitization agreement, executed on behalf of the estate before
170-18 September 1, 1993, pursuant to provisions, or by a former owner of
170-19 land, minerals, or royalty affected by the lease, pooling, or
170-20 unitization agreement, the guardian of the estate that is being
170-21 administered, without further order of the court and without
170-22 consideration, may execute division orders, transfer orders,
170-23 instruments of correction, instruments designating depository banks
170-24 for the reception of delay rentals or shut-in gas well royalty to
170-25 accrue or become payable under the terms of the lease, or similar
170-26 instruments pertaining to the lease or agreement and the property
170-27 covered by the lease or agreement.
171-1 Sec. 851. Procedure When Guardian of Estate Neglects to
171-2 Apply for Authority. When the guardian of an estate neglects to
171-3 apply for authority to subject property of the estate to a lease
171-4 for mineral development, pooling, or unitization, or authority to
171-5 commit royalty or other interest in minerals to pooling or
171-6 unitization, any person interested in the estate, on written
171-7 application filed with the county clerk, may cause the guardian to
171-8 be cited to show cause why it is not in the best interests of the
171-9 estate for the lease to be made or an agreement to be entered into.
171-10 The clerk shall immediately call the filing of the application
171-11 under this section to the attention of the judge of the court in
171-12 which the guardianship proceeding is pending. The judge shall set
171-13 a time and place for a hearing on the application. The guardian of
171-14 the estate shall be cited to appear and show cause why the
171-15 execution of the lease or agreement should not be ordered. On
171-16 hearing and if satisfied from the proof that it would be in the
171-17 best interests of the estate, the court shall enter an order
171-18 requiring the guardian to file the guardian's application to
171-19 subject the property of the estate to a lease for mineral
171-20 development, with or without pooling or unitization provisions, or
171-21 to commit royalty or other minerals to unitization, as the case may
171-22 be. The procedures prescribed with respect to original application
171-23 to lease or with respect to original application for authority to
171-24 commit royalty or minerals to pooling or unitization shall be
171-25 followed.
171-26 Sec. 852. VALIDATION OF CERTAIN LEASES AND POOLING OR
171-27 UNITIZATION AGREEMENTS BASED ON PREVIOUS STATUTES. All leases on
172-1 the oil, gas, or other minerals existing on September 1, 1993,
172-2 belonging to the estates of minors or other incapacitated persons
172-3 and all agreements with respect to the pooling or unitization of
172-4 oil, gas, or other minerals or any interest in oil, gas, or other
172-5 minerals with like properties of others that have been authorized
172-6 by the court having venue, executed, and delivered by a guardian or
172-7 other fiduciary of the estate of a minor or incapacitated person in
172-8 substantial conformity to the rules set forth in statutes on
172-9 execution or delivery providing for only seven days' notice in some
172-10 instances and for a brief order designating a time and place for
172-11 hearing, are validated insofar as the period of notice or absence
172-12 of an order setting a time and place for hearing is concerned,
172-13 unless the length of time of the notice or the absence of the order
172-14 is an issue in a lease or pooling or unitization agreement that is
172-15 involved in a lawsuit pending on September 1, 1993.
172-16 SUBPART K. PARTITION OF WARD'S ESTATE IN REALTY
172-17 Sec. 853. PARTITION OF WARD'S INTEREST IN REALTY. (a) If a
172-18 ward owns an interest in real estate in common with another part
172-19 owner or one or more part owners, and if, in the opinion of the
172-20 guardian of the estate, it is in the best interests of the ward's
172-21 estate to partition the real estate, the guardian may agree on a
172-22 partition with the other part owners subject to the approval of the
172-23 court in which the guardianship proceeding is pending.
172-24 (b) When a guardian has reached an agreement with the other
172-25 part owners on how to partition the real estate, the guardian shall
172-26 file with the court an application to have the agreement approved.
172-27 The application filed by the guardian under this subsection shall
173-1 describe the land that is to be divided and shall state why it is
173-2 in the best interests of the ward's estate to partition the real
173-3 estate and shall show that the proposed partition agreement is fair
173-4 and just to the ward's estate.
173-5 (c) When the application required by Subsection (b) of this
173-6 section is filed, the county clerk shall immediately call the
173-7 filing of the application to the attention of the judge of the
173-8 court in which the guardianship proceeding is pending. The judge
173-9 shall designate a day to hear the application. The application
173-10 must remain on file at least 10 days before any orders are made,
173-11 and the judge may continue the hearing from time to time until the
173-12 judge is satisfied concerning the application.
173-13 (d) If the judge is satisfied that the proposed partition of
173-14 the real estate is in the best interests of the ward's estate, the
173-15 court shall enter an order approving the partition and directing
173-16 the guardian to execute the necessary agreement for the purpose of
173-17 carrying the order and partition into effect.
173-18 (e) When a guardian has executed an agreement or will
173-19 execute an agreement to partition any land in which the ward has
173-20 an interest without court approval as provided by this section, the
173-21 guardian shall file with the court in which the guardianship
173-22 proceedings are pending an application for the approval and
173-23 ratification of the partition agreement. The application must
173-24 refer to the agreement in such a manner that the court can fully
173-25 understand the nature of the partition and the land being divided.
173-26 The application must state that, in the opinion of the guardian,
173-27 the agreement is fair and just to the ward's estate and is in the
174-1 best interests of the estate. When the application is filed, a
174-2 hearing shall be held on the application as provided by Subsection
174-3 (c) of this section. If the court is of the opinion that the
174-4 partition is fairly made and that the partition is in the best
174-5 interests of the ward's estate, the court shall enter an order
174-6 ratifying and approving the partition agreement. When the
174-7 partition is ratified and approved, the partition shall be
174-8 effective and binding as if originally executed after a court
174-9 order.
174-10 (f) If the guardian of the estate of a ward is of the
174-11 opinion that it is in the best interests of the ward's estate that
174-12 any real estate that the ward owns in common with others should be
174-13 partitioned, the guardian may bring a suit in the court in which
174-14 the guardianship proceeding is pending against the other part owner
174-15 or part owners for the partition of the real estate. The court, if
174-16 after hearing the suit is satisfied that the necessity for the
174-17 partition of the real estate exists, may enter an order
174-18 partitioning the real estate to the owner of the real estate.
174-19 SUBPART L. INVESTMENTS AND LOANS OF ESTATES OF WARDS
174-20 Sec. 855. INVESTMENTS WITHOUT COURT ORDER. (a) The
174-21 guardian of the estate may retain, without regard to
174-22 diversification of investments and without liability for any
174-23 depreciation or loss resulting from the retention, any property
174-24 received into a guardianship estate at its inception or added to
174-25 the estate by gift, devise, or inheritance or by mutation or
174-26 increase. A guardian of the estate is not relieved from the duty
174-27 to take care of and manage the estate as a person of ordinary
175-1 prudence, discretion, and intelligence would exercise in the
175-2 management of the person's own affairs.
175-3 (b) If the guardian of the estate has on hand money that
175-4 belongs to the ward that exceeds that amount of money that may be
175-5 necessary for the education and maintenance of the ward, the
175-6 guardian shall invest the money as follows:
175-7 (1) in bonds or other obligations of the United
175-8 States;
175-9 (2) in tax-supported bonds of this state;
175-10 (3) except as limited by Subsections (c) and (d) of
175-11 this section, in tax-supported bonds of a county, district,
175-12 political subdivision, or incorporated city or town in this state;
175-13 (4) in shares or share accounts of a building and loan
175-14 association organized under the laws of this state if the payment
175-15 of the shares or share accounts is insured by the Federal Savings
175-16 and Loan Insurance Corporation;
175-17 (5) in the shares or share accounts of a federal
175-18 savings and loan association domiciled in this state if the payment
175-19 of the shares or share accounts is insured by the Federal Savings
175-20 and Loan Insurance Corporation;
175-21 (6) in collateral bonds of companies incorporated
175-22 under the laws of this state, having a paid-in capital of
175-23 $1,000,000 or more, when the bonds are a direct obligation of the
175-24 company that issues the bonds and are specifically secured by first
175-25 mortgage real estate notes or other securities pledged with a
175-26 trustee; or
175-27 (7) in interest-bearing time deposits that may be
176-1 withdrawn on or before one year after demand in a bank that does
176-2 business in this state where the payment of the time deposits is
176-3 insured by the Federal Deposit Insurance Corporation.
176-4 (c) The bonds of a county, district, or subdivision may be
176-5 purchased only if the net funded debt of the county, district, or
176-6 subdivision that issues the bonds does not exceed 10 percent of the
176-7 assessed value of taxable property in the county, district, or
176-8 subdivision.
176-9 (d) The bonds of a city or town may be purchased only if the
176-10 net funded debt of the city or town does not exceed 10 percent of
176-11 the assessed value of taxable property in the city or town less
176-12 that part of the debt incurred for acquisition or improvement of
176-13 revenue-producing utilities, the revenues of which are not pledged
176-14 to support other obligations of the city or town.
176-15 (e) The limitations in Subsections (c) and (d) of this
176-16 section do not apply to bonds issued for road purposes in this
176-17 state under Section 52, Article III, of the Texas Constitution that
176-18 are supported by a tax unlimited as to rate or amount.
176-19 (f) In this section, "net funded debt" means the total
176-20 funded debt less sinking funds on hand.
176-21 Sec. 856. OTHER INVESTMENTS. (a) If a guardian of an
176-22 estate deems it is in the best interests of the ward the guardian
176-23 is appointed to represent to invest in or sell any property or
176-24 security in which a trustee is authorized to invest by either
176-25 Section 113.056 or Subchapter F, Chapter 113, of the Texas Trust
176-26 Code (Subtitle B, Title 9, Property Code), and the investment or
176-27 sale is not expressly permitted by other sections of this chapter,
177-1 the guardian may file a written application in the court in which
177-2 the guardianship is pending that asks for an order authorizing the
177-3 guardian to make the desired investment or sale and states the
177-4 reason why the guardian is of the opinion that the investment or
177-5 sale would be beneficial to the ward. A citation or notice is not
177-6 necessary under this subsection unless ordered by the court.
177-7 (b) On the hearing of the application filed under this
177-8 section, the court shall enter an order authorizing the investment
177-9 or sale if the court is satisfied that the investment or sale will
177-10 be beneficial to the ward. The court order must specify the
177-11 investment or sale to be made and contain other directions as the
177-12 court finds advisable.
177-13 (c) The procedure specified in this section does not need to
177-14 be followed in making an investment or sale specifically authorized
177-15 by other statutes and does not apply if a different procedure is
177-16 prescribed for an investment or sale by a guardian.
177-17 Sec. 857. INVESTMENT IN LIFE INSURANCE OR ANNUITIES.
177-18 (a) In this section, "life insurance company" means a stock or
177-19 mutual legal reserve life insurance company that maintains the full
177-20 legal reserves required under the laws of this state and that is
177-21 licensed by the State Board of Insurance to transact the business
177-22 of life insurance in this state.
177-23 (b) The guardian of the estate may invest in life, term, or
177-24 endowment insurance policies, or in annuity contracts, or both,
177-25 issued by a life insurance company or administered by the Veterans
177-26 Administration, subject to conditions and limitations in this
177-27 section.
178-1 (c) The guardian shall first apply to the court for an order
178-2 that authorizes the guardian to make the investment. The
178-3 application filed under this subsection must include a report that
178-4 shows:
178-5 (1) in detail the financial condition of the estate at
178-6 the time the application is made;
178-7 (2) the name and address of the life insurance company
178-8 from which the policy or annuity contract is to be purchased and
178-9 that the company is licensed by the State Board of Insurance to
178-10 transact that business in this state on the date the application is
178-11 filed, or that the policy or contract is administered by the
178-12 Veterans Administration;
178-13 (3) a statement of the face amount and plan of the
178-14 policy of insurance sought to be purchased and of the amount,
178-15 frequency, and duration of the annuity payments to be provided by
178-16 the annuity contract sought to be purchased;
178-17 (4) a statement of the amount, frequency, and duration
178-18 of the premiums required by the policy or annuity contract; and
178-19 (5) a statement of the cash value of the policy or
178-20 annuity contract at its anniversary nearest the 21st birthday of
178-21 the ward, assuming that all premiums to the anniversary are paid
178-22 and that there is no indebtedness against the policy or contract
178-23 incurred in accordance with its terms.
178-24 (d) An insurance policy must be issued on the life of the
178-25 ward, or the father, mother, spouse, child, brother, sister,
178-26 grandfather, or grandmother of the ward or a person in whose life
178-27 the ward may have an insurable interest.
179-1 (e) Only the ward, the ward's estate, or the father,
179-2 mother, spouse, child, brother, sister, grandfather, or grandmother
179-3 of the ward may be a beneficiary of the insurance policy and of the
179-4 death benefit of the annuity contract, and the ward must be the
179-5 annuitant in the annuity contract.
179-6 (f) The control of the policy or the annuity contract and of
179-7 the incidents of ownership in the policy or annuity contract is
179-8 vested in the guardian during the life and disability of the ward.
179-9 (g) The policy or annuity contract may not be amended or
179-10 changed during the life and disability of the ward except on
179-11 application to and order of the court.
179-12 (h) If a life, term, or endowment insurance policy or a
179-13 contract of annuity is owned by the ward when a proceeding for the
179-14 appointment of a guardian is begun, and it is made to appear that
179-15 the company issuing the policy or contract of annuity is a life
179-16 insurance company as defined by this section or the policy or
179-17 contract is administered by the Veterans Administration, the policy
179-18 or contract may be continued in full force and effect. All future
179-19 premiums may be paid out of surplus funds of the ward's estate.
179-20 The guardian shall apply to the court for an order to continue the
179-21 policy or contract, or both, according to the existing terms of the
179-22 policy or contract or to modify the policy or contract to fit any
179-23 new developments affecting the welfare of the ward. Before any
179-24 application filed under this subsection is granted, the guardian
179-25 shall file a report in the court that shows in detail the financial
179-26 condition of the ward's estate at the time the application is
179-27 filed.
180-1 (i) The court, if satisfied by the application and the
180-2 evidence adduced at the hearing that it is in the interests of the
180-3 ward to grant the application, shall enter an order granting the
180-4 application.
180-5 (j) A right, benefit, or interest that accrues under an
180-6 insurance or annuity contract that comes under the provisions of
180-7 this section shall become the exclusive property of the ward when
180-8 the ward's disability is terminated.
180-9 Sec. 858. LOANS AND SECURITY FOR LOANS. If, at any time,
180-10 the guardian of the estate has on hand money belonging to the ward
180-11 in an amount that is beyond what may be necessary for the education
180-12 and maintenance of the ward, the guardian may lend the money for
180-13 the highest rate of interest that can be obtained for the money.
180-14 The guardian shall take the note of the borrower for the money that
180-15 is loaned, secured by a mortgage with a power of sale on
180-16 unencumbered real estate located in this state worth at least twice
180-17 the amount of the note, or by collateral notes secured by vendor's
180-18 lien notes, as collateral, or the guardian may purchase vendor's
180-19 lien notes if at least one-half has been paid in cash or its
180-20 equivalent on the land for which the notes were given.
180-21 Sec. 859. GUARDIAN'S LIABILITY FOR LOANS. When the borrower
180-22 of money lent by the guardian of the estate under the court's
180-23 direction and on security approved by the court is unable to repay
180-24 the money or the security fails, the guardian of the estate is not
180-25 personally responsible for the money unless the guardian has been
180-26 guilty of fraud or negligence with respect to the loan or the
180-27 collection of the loan, in which case the guardian and the sureties
181-1 on the bond of the guardian shall be liable for whatever loss the
181-2 ward sustains because of the guardian's fraud or negligence.
181-3 Sec. 860. GUARDIAN'S INVESTMENTS IN REAL ESTATE. (a) When
181-4 the guardian of the estate of a ward thinks it is best for the ward
181-5 who has a surplus of money on hand to invest the money in real
181-6 estate, the guardian shall file a written application in the court
181-7 in which the guardianship is pending requesting a court order
181-8 authorizing the guardian to make the desired investment and
181-9 stating the reasons why the guardian is of the opinion that the
181-10 investment would be for the benefit of the ward.
181-11 (b) When an application is filed by the guardian under this
181-12 section, the judge's attention shall be called to the application,
181-13 and the judge shall make investigation as necessary to obtain all
181-14 the facts concerning the investment. The judge may not render an
181-15 opinion or make an order on the application until 10 days from the
181-16 date of the filing of the application have expired. On the hearing
181-17 of the application, if the court is satisfied that the investment
181-18 benefits the ward, the court shall issue an order that authorizes
181-19 the guardian to make the investment. The order shall specify the
181-20 investment to be made and contain other directions the court thinks
181-21 are advisable.
181-22 (c) When a contract is made for the investment of money in
181-23 real estate under court order, the guardian shall report the
181-24 contract in writing to the courts. The court shall inquire fully
181-25 into the contract. If satisfied that the investment will benefit
181-26 the estate of the ward and that the title of the real estate is
181-27 valid and unencumbered, the court may approve the contract and
182-1 authorize the guardian to pay over the money in performance of the
182-2 contract. The guardian may not pay any money on the contract until
182-3 the contract is approved by court order to that effect.
182-4 (d) When the money of the ward has been invested in real
182-5 estate, the title to the real estate shall be made to the ward.
182-6 The guardian shall inventory, appraise, manage, and account for the
182-7 real estate as other real estate of the ward.
182-8 Sec. 861. OPINION OF ATTORNEY WITH RESPECT TO LOANS AND
182-9 INVESTMENTS. When the guardian of the estate of a ward lends or
182-10 invests the money of the ward, the guardian may not pay over or
182-11 transfer any money in consummation of the loan or investment until
182-12 the guardian has submitted to a reputable attorney for examination
182-13 all bonds, notes, mortgages, documents, abstracts, and other papers
182-14 pertaining to the loan or investment and the guardian has received
182-15 a written opinion from the attorney that all papers pertaining to
182-16 the loan or investment are regular and that the title to the bonds,
182-17 notes, or real estate is good. The attorney making the examination
182-18 shall be paid a reasonable fee, not to exceed one percent of the
182-19 amount invested, unless one percent of the amount invested is less
182-20 than $25, in which event the fee shall be $25. The guardian
182-21 shall pay the fee out of the funds of the ward's estate. On a
182-22 loan, the attorney's fee shall be paid by the borrower. The
182-23 guardian may obtain a mortgagee's title insurance policy on any
182-24 real estate loan instead of an abstract and attorney's opinion.
182-25 Sec. 862. REPORT OF INVESTMENT AND LOANS. Not later than
182-26 the 30th day after the date money belonging to a ward's estate is
182-27 lent or invested, the guardian of the ward's estate shall report to
183-1 the court in writing, verified by affidavit, stating fully the
183-2 facts of the investment or loan, unless the investment or loan was
183-3 made pursuant to a court order.
183-4 Sec. 863. LIABILITY OF GUARDIAN FOR FAILURE TO LEND OR
183-5 INVEST FUNDS. If the guardian of the estate neglects to invest or
183-6 lend surplus money on hand at interest when the guardian can do so
183-7 by using reasonable diligence, the guardian shall be liable for the
183-8 principal and for the highest legal rate of interest on the
183-9 principal for the time the guardian neglects to invest or lend the
183-10 surplus money. The amount of principal and interest on the
183-11 principal may be recovered in a court of competent jurisdiction.
183-12 Sec. 864. REQUIRING GUARDIAN TO INVEST OR LEND SURPLUS
183-13 FUNDS. If there is any surplus money of the estate in the hands of
183-14 the guardian of the estate, the court, on its own motion or on
183-15 written complaint filed by any person, may cause the guardian to be
183-16 cited to appear and show cause why the surplus money should not be
183-17 invested or lent at interest. On the hearing of a complaint filed
183-18 under this section, the court shall enter an order as the law and
183-19 the facts require.
183-20 SUBPART M. TAX MOTIVATED AND CHARITABLE GIFTS
183-21 Sec. 865. POWER TO MAKE TAX-MOTIVATED GIFTS. (a) On
183-22 application of the guardian of the estate or any interested party
183-23 and after notice to all interested persons and to other persons as
183-24 directed by the court, the court, after hearing, may enter an order
183-25 that authorizes the guardian to apply the principal or income of
183-26 the ward's estate that is not required for the support of the ward
183-27 or the ward's family during the ward's lifetime toward the
184-1 establishment of an estate plan for the purpose of minimizing
184-2 income, estate, inheritance, or other taxes payable out of the
184-3 ward's estate on a showing that the ward will probably remain
184-4 incapacitated during the ward's lifetime. On the ward's behalf,
184-5 the court may authorize the guardian to make gifts, outright or in
184-6 trust, of the ward's personal property or real estate to or for the
184-7 benefit of:
184-8 (1) an organization to which charitable contributions
184-9 may be made under the Internal Revenue Code and in which it is
184-10 shown the ward would reasonably have an interest;
184-11 (2) the ward's heirs at law who are identifiable at
184-12 the time of the order;
184-13 (3) a devisee under the ward's last validly executed
184-14 will, if there is a will; and
184-15 (4) a person serving as guardian of the ward if the
184-16 person is eligible under either Subdivision (2) or (3) of this
184-17 subsection.
184-18 (b) The person making an application to the court under this
184-19 section shall outline the proposed estate plan and set forth all
184-20 the benefits that are to be derived from the estate plan. The
184-21 application must indicate that the planned disposition is
184-22 consistent with the ward's intentions if the ward's intentions can
184-23 be ascertained. If the ward's intentions cannot be ascertained,
184-24 the ward will be presumed to favor reduction in the incidence of
184-25 the various forms of taxation and the partial distribution of the
184-26 ward's estate as provided by this section.
184-27 (c) The court may appoint a guardian ad litem for the ward
185-1 or any interested party at any stage of the proceedings if it is
185-2 deemed advisable for the protection of the ward or the interested
185-3 party.
185-4 (d) A subsequent modification of an approved plan may be
185-5 made by similar application to the court.
185-6 Sec. 866. CONTRIBUTIONS. (a) The guardian of the estate
185-7 may at any time file the guardian's sworn application in writing
185-8 with the county clerk requesting an order from the court in which
185-9 the guardianship is pending authorizing the guardian to contribute
185-10 from the income of the ward's estate a specific amount of money as
185-11 stated in the application, to one or more:
185-12 (1) designated corporations, trusts, or community
185-13 chests, funds, or foundations, organized and operated exclusively
185-14 for religious, charitable, scientific, literary, or educational
185-15 purposes; or
185-16 (2) designated nonprofit federal, state, county, or
185-17 municipal projects operated exclusively for public health or
185-18 welfare.
185-19 (b) When an application is filed under this section, the
185-20 county clerk shall immediately call the filing of the application
185-21 to the attention of the judge of the court. The judge, by written
185-22 order filed with the clerk, shall designate a day to hear the
185-23 application. The application shall remain on file at least 10 days
185-24 before the hearing is held. The judge may postpone or continue the
185-25 hearing from time to time until the judge is satisfied concerning
185-26 the application.
185-27 (c) On the conclusion of a hearing under this section, the
186-1 court may enter an order authorizing the guardian to make a
186-2 contribution from the income of the ward's estate to a particular
186-3 donee designated in the application and order if the court is
186-4 satisfied and finds from the evidence that:
186-5 (1) the amount of the proposed contribution stated in
186-6 the application will probably not exceed 20 percent of the net
186-7 income of the ward's estate for the current calendar year;
186-8 (2) the net income of the ward's estate for the
186-9 current calendar year exceeds, or probably will exceed, $25,000;
186-10 (3) the full amount of the contribution, if made, will
186-11 probably be deductible from the ward's gross income in determining
186-12 the net income of the ward under applicable federal income tax laws
186-13 and rules;
186-14 (4) the condition of the ward's estate justifies a
186-15 contribution in the proposed amount; and
186-16 (5) the proposed contribution is reasonable in amount
186-17 and is for a worthy cause.
186-18 SUBPART N. MANAGEMENT TRUSTS
186-19 Sec. 867. CREATION OF MANAGEMENT TRUST. On application by
186-20 the guardian of a ward, the court in which the guardianship
186-21 proceeding is pending may enter an order that creates for the
186-22 ward's benefit a trust for the management of guardianship funds if
186-23 the court finds that the creation of the trust is in the ward's
186-24 best interests. The order shall direct the guardian to deliver all
186-25 or part of the assets of the guardianship to a trust company or a
186-26 state or national bank that has trust powers in this state. The
186-27 order shall include terms, conditions, and limitations placed on
187-1 the trust.
187-2 Sec. 868. TERMS OF MANAGEMENT TRUST. (a) A trust created
187-3 under Section 867 of this code must provide that:
187-4 (1) the ward is the sole beneficiary of the trust;
187-5 (2) the trustee may disburse an amount of the trust's
187-6 principal or income as the trustee determines is necessary to
187-7 expend for the health, education, support, or maintenance of the
187-8 ward;
187-9 (3) the income of the trust that the trustee does not
187-10 disburse under Subdivision (2) of this subsection must be added to
187-11 the principal of the trust;
187-12 (4) the trustee serves without giving a bond; and
187-13 (5) the trustee, on annual application to the court
187-14 and subject to the court's approval, is entitled to receive
187-15 reasonable compensation for services that the trustee provided to
187-16 the ward as the ward's trustee that is:
187-17 (A) to be paid from the trust's income,
187-18 principal, or both; and
187-19 (B) determined in the same manner as
187-20 compensation of a guardian of an estate under Section 665 of this
187-21 code.
187-22 (b) The trust may provide that a trustee make a
187-23 distribution, payment, use, or application of trust funds, as
187-24 necessary and without the intervention of a guardian or other
187-25 representative of the ward, to the ward's guardian or to a person
187-26 who has physical custody of the ward for:
187-27 (1) the benefit, support, or maintenance of the ward
188-1 if the ward is a minor; or
188-2 (2) the support of the ward, and the support,
188-3 maintenance, and education of the ward's children if the ward is an
188-4 incapacitated person other than a minor.
188-5 Sec. 869. TRUST AMENDMENT, MODIFICATION, OR REVOCATION. (a)
188-6 The court may amend, modify, or revoke the trust at any time before
188-7 the date of the trust's termination.
188-8 (b) The ward or guardian of the ward's estate may not revoke
188-9 the trust.
188-10 Sec. 870. TERMINATION OF TRUST. (a) If the ward is a
188-11 minor, the trust terminates:
188-12 (1) on the death of the ward or the ward's 18th
188-13 birthday, whichever is earlier; or
188-14 (2) on the date provided by court order which may not
188-15 be later than the ward's 25th birthday.
188-16 (b) If the ward is an incapacitated person other than a
188-17 minor, the trust terminates on the date the court determines that a
188-18 guardianship is no longer necessary for the ward or on the death of
188-19 the ward before the court's determination that a guardianship is no
188-20 longer necessary.
188-21 Sec. 871. ANNUAL ACCOUNTING. (a) The trustee shall prepare
188-22 and file with the court an annual accounting of transactions in the
188-23 trust in the same manner and form that is required of a guardian
188-24 under this chapter.
188-25 (b) The trustee shall provide a copy of the annual account
188-26 to the guardian of the ward's estate or person.
188-27 (c) The annual account is subject to court review and
189-1 approval in the same manner that is required of an annual account
189-2 prepared by a guardian under this chapter.
189-3 Sec. 872. LIABILITY. The guardian of the estate of the ward
189-4 or the surety on the bond of the guardian is not liable for an act
189-5 or omission of the trustee.
189-6 Sec. 873. DISTRIBUTION OF TRUST PROPERTY. Unless otherwise
189-7 provided by the court, the trustee shall distribute the principal
189-8 or any undistributed income of the trust to the ward or to the
189-9 representative of the deceased ward's estate when the trust
189-10 terminates on its own terms or on the ward's death.
189-11 PART 5. SPECIAL PROCEEDINGS AND ORDERS
189-12 SUBPART A. TEMPORARY GUARDIANSHIPS
189-13 Sec. 875. TEMPORARY GUARDIAN--PROCEDURE. (a) If a court is
189-14 presented with substantial evidence that a person may be a minor or
189-15 other incapacitated person, and the court has probable cause to
189-16 believe that the person or person's estate, or both, requires the
189-17 immediate appointment of a guardian, the court shall appoint a
189-18 temporary guardian with limited powers as the circumstances of the
189-19 case require.
189-20 (b) A person for whom a temporary guardian has been
189-21 appointed may not be presumed to be incapacitated. The person
189-22 retains all rights and powers that are not specifically granted to
189-23 the person's temporary guardian by court order.
189-24 (c) A written application for the appointment of a temporary
189-25 guardian may be filed before the court appoints a temporary
189-26 guardian. The application must be filed not later than the end of
189-27 the next business day of the court after the date of appointment of
190-1 the temporary guardian. The application must state:
190-2 (1) the name and address of the person who is the
190-3 subject of the guardianship proceeding;
190-4 (2) the danger to the person or property alleged to be
190-5 imminent;
190-6 (3) the type of appointment and the particular
190-7 protection and assistance being requested;
190-8 (4) the facts and reasons supporting the allegations
190-9 and requests;
190-10 (5) the name, address, and qualification of the
190-11 proposed temporary guardian;
190-12 (6) the name, address, and interest of the applicant;
190-13 (7) the social security numbers of the applicant and
190-14 proposed ward; and
190-15 (8) if applicable, that the proposed temporary
190-16 guardian is a private professional guardian who has complied with
190-17 the requirements of Section 697 of this code.
190-18 (d) At the earliest of the filing of an application for
190-19 temporary guardianship or the appointment of a temporary guardian,
190-20 the court shall appoint an attorney to represent the proposed ward
190-21 in all guardianship proceedings in which independent counsel has
190-22 not been retained by or on behalf of the proposed ward.
190-23 (e) On the filing of an application for temporary
190-24 guardianship, the clerk shall issue notice that shall be served on
190-25 the respondent and the respondent's appointed attorney. The notice
190-26 must describe the rights of the parties and the date, time, place,
190-27 purpose, and possible consequences of a hearing on the application.
191-1 A copy of the application and, if applicable, a copy of the order
191-2 appointing the temporary guardian must be attached to the notice.
191-3 (f)(1) A hearing shall be held not later than the 10th day
191-4 after the date of the filing of the application for temporary
191-5 guardianship unless the hearing date is extended as provided by
191-6 Subdivision (2) of this subsection. At a hearing under this
191-7 section, the respondent has the right to:
191-8 (A) receive prior notice;
191-9 (B) have representation by counsel;
191-10 (C) be present;
191-11 (D) present evidence and confront and
191-12 cross-examine witnesses; and
191-13 (E) a closed hearing if requested by the
191-14 respondent or the respondent's attorney.
191-15 (2) Every temporary guardianship granted before a
191-16 hearing on the application required by Subdivision (1) of this
191-17 subsection expires on its own terms at the conclusion of the
191-18 hearing unless the respondent or the respondent's attorney consents
191-19 that the order appointing the temporary guardian may be extended
191-20 for a longer period not to exceed 60 days after the date of the
191-21 filing of the application for temporary guardianship.
191-22 (3) Every temporary guardianship granted before a
191-23 hearing on the application required by Subdivision (1) of this
191-24 subsection shall be set for hearing at the earliest possible date
191-25 and takes precedence over all matters except older matters of the
191-26 same character.
191-27 (4) Every temporary guardianship granted before a
192-1 hearing on the application required by Subdivision (1) of this
192-2 subsection must include an order that sets a certain date for
192-3 hearing on the application for temporary guardianship.
192-4 (5) On one day's notice to the party who obtained a
192-5 temporary guardianship before a hearing on the application required
192-6 by Subdivision (1) of this subsection, the respondent or the
192-7 respondent's attorney may appear and move for the dissolution or
192-8 modification of the temporary guardianship. If a motion is made
192-9 for dissolution or modification of the temporary guardianship, the
192-10 court shall hear and determine the motion as expeditiously as the
192-11 ends of justice require.
192-12 (g) If at the conclusion of the hearing required by
192-13 Subsection (f)(1) of this section the court determines that the
192-14 applicant has established that there is substantial evidence that
192-15 the person is a minor or other incapacitated person, that there is
192-16 imminent danger that the physical health or safety of the
192-17 respondent will be seriously impaired, or that the respondent's
192-18 estate will be seriously damaged or dissipated unless immediate
192-19 action is taken, the court shall appoint a temporary guardian by
192-20 written order. The court shall assign to the temporary guardian
192-21 only those powers and duties that are necessary to protect the
192-22 respondent against the imminent danger shown. The powers and
192-23 duties must be described in the order of appointment.
192-24 (h) Except as provided by Subsection (k) of this section, a
192-25 temporary guardianship may not remain in effect for more than 60
192-26 days.
192-27 (i) If the court appoints a temporary guardian after the
193-1 hearing required by Subsection (f)(1) of this section, all court
193-2 costs, including attorney's fees, may be assessed as provided in
193-3 Section 669 of this code.
193-4 (j) The court may not customarily or ordinarily appoint the
193-5 Texas Department of Human Services as a temporary guardian under
193-6 this section. The appointment of the department as a temporary
193-7 guardian under this section should be made only as a last resort.
193-8 (k) If an application for a temporary guardianship or an
193-9 application to convert a temporary guardianship to a permanent
193-10 guardianship is challenged or contested, the court shall appoint a
193-11 temporary guardian whose term expires at the conclusion of the
193-12 hearing or the period provided by Subsection (h) of this section,
193-13 whichever is later.
193-14 Sec. 876. AUTHORITY OF TEMPORARY GUARDIAN. When the
193-15 temporary guardian files the oath and bond required under this
193-16 chapter, the court order appointing the temporary guardian takes
193-17 effect without the necessity for issuance of letters of
193-18 guardianship. The clerk shall note compliance with oath and bond
193-19 requirements by the appointed guardian on a certificate attached to
193-20 the order. The order shall be evidence of the temporary guardian's
193-21 authority to act within the scope of the powers and duties set
193-22 forth in the order. The clerk may not issue certified copies of
193-23 the order until the oath and bond requirements are satisfied.
193-24 Sec. 877. POWERS OF TEMPORARY GUARDIAN. All the provisions
193-25 of this chapter relating to the guardianship of persons and estates
193-26 of incapacitated persons apply to a temporary guardianship of the
193-27 persons and estates of incapacitated persons, insofar as the same
194-1 may be made applicable.
194-2 Sec. 878. Accounting. At the expiration of a temporary
194-3 appointment, the appointee shall file with the clerk of the court a
194-4 sworn list of all property of the estate that has come into the
194-5 hands of the appointee, a return of all sales made by the
194-6 appointee, and a full exhibit and account of all of the appointee's
194-7 acts as temporary appointee.
194-8 Sec. 879. CLOSING TEMPORARY GUARDIANSHIP. The court shall
194-9 act on the list, return, exhibit, and account filed under Section
194-10 878 of this code. Whenever temporary letters expire or cease to be
194-11 effective for any reason, the court shall immediately enter an
194-12 order requiring the temporary appointee to deliver the estate
194-13 remaining in the temporary appointee's possession to the person who
194-14 is legally entitled to the possession of the estate. The temporary
194-15 appointee shall be discharged and the sureties on the bond of the
194-16 temporary appointee shall be released as to future liability on
194-17 proof that the appointee delivered the property as required by this
194-18 section.
194-19 SUBPART B. GUARDIANSHIPS FOR NONRESIDENTS
194-20 Sec. 881. NONRESIDENT GUARDIAN. (a) A nonresident of this
194-21 state may be appointed and qualified as guardian or coguardian of a
194-22 nonresident ward's estate located in this state in the same manner
194-23 provided by this code for the appointment and qualification of a
194-24 resident as guardian of the estate of an incapacitated person if:
194-25 (1) a court of competent jurisdiction in the
194-26 geographical jurisdiction in which the nonresident resides
194-27 appointed the nonresident guardian;
195-1 (2) the nonresident is qualified as guardian or as a
195-2 fiduciary legal representative by whatever name known in the
195-3 foreign jurisdiction of the property or estate of the ward located
195-4 in the jurisdiction of the foreign court; and
195-5 (3) with the written application for appointment in
195-6 the county court of any county in this state in which all or part
195-7 of the ward's estate is located, the nonresident files a complete
195-8 transcript of the proceedings from the records of the court in
195-9 which the nonresident applicant was appointed, showing the
195-10 applicant's appointment and qualification as the guardian or
195-11 fiduciary legal representative of the ward's property or estate.
195-12 (b) The transcript required by Subsection (a) of this
195-13 section must be certified to and attested by the clerk of the
195-14 foreign court or the officer of the court charged by law with
195-15 custody of the court records, under the court seal, if any. The
195-16 certificate of the judge, chief justice, or presiding magistrate,
195-17 as applicable, of the foreign court must be attached to the
195-18 transcript, certifying that the attestation of the transcript by
195-19 the clerk or legal custodian of the court records is in correct
195-20 form.
195-21 (c) If the nonresident applicant meets the requirements of
195-22 this section, without the necessity of any notice or citation, the
195-23 court shall enter an order appointing the nonresident. After the
195-24 nonresident applicant qualifies in the manner required of resident
195-25 guardians and files with the court a power of attorney appointing a
195-26 resident agent to accept service of process in all actions or
195-27 proceedings with respect to the estate, the clerk shall issue the
196-1 letters of guardianship to the nonresident guardian.
196-2 (d) After qualification, the nonresident guardian shall file
196-3 an inventory and appraisement of the estate of the ward in this
196-4 state subject to the jurisdiction of the court, as in ordinary
196-5 cases, and is subject to all applicable provisions of this code
196-6 with respect to the handling and settlement of estates by resident
196-7 guardians.
196-8 Sec. 882. NONRESIDENT AS WARD. Guardianship of the estate
196-9 of a nonresident incapacitated person who owns property in this
196-10 state may be granted, if necessary, in the same manner as for the
196-11 property of a resident of this state. A court in the county in
196-12 which the principal estate of the ward is located has jurisdiction
196-13 to appoint a guardian. The court shall take all actions and make
196-14 all necessary orders with respect to the estate of the ward for the
196-15 maintenance, support, care, or education of the ward, out of the
196-16 proceeds of the ward's estate, in the same manner as if the ward
196-17 were a resident of this state and was sent abroad by the court for
196-18 education or treatment. If a qualified nonresident guardian of the
196-19 estate later qualifies in this state under Section 881 of this
196-20 code, the court shall close the resident guardianship.
196-21 SUBPART C. INCAPACITATED SPOUSE AND COMMUNITY PROPERTY
196-22 Sec. 883. Incapacitated Spouse. When a husband or wife is
196-23 judicially declared to be incapacitated, the other spouse, in the
196-24 capacity of surviving partner of the marital partnership, acquires
196-25 full power to manage, control, and dispose of the entire community
196-26 estate, including the part of the community estate that the
196-27 incapacitated spouse legally has the power to manage in the absence
197-1 of the incapacity, without an administration. If the court finds
197-2 that it is in the best interest of the incapacitated spouse and
197-3 that the other spouse would not be disqualified to serve as
197-4 guardian under Section 681 of this code, guardianship of the estate
197-5 of the incapacitated spouse may not be necessary when the other
197-6 spouse is not incapacitated unless the incapacitated spouse owns
197-7 separate property, and the guardianship will be of the separate
197-8 property only. The qualification of a guardian of the estate of an
197-9 incapacitated spouse does not deprive the competent spouse of the
197-10 right to manage, control, and dispose of the entire community
197-11 estate as provided in this chapter.
197-12 Sec. 884. Delivery To Spouse. A guardian of the estate of
197-13 an incapacitated married person who, as guardian, is administering
197-14 community property as part of the estate of the ward, shall deliver
197-15 on demand the community property to the spouse who is not
197-16 incapacitated.
197-17 SUBPART D. RECEIVERSHIP FOR MINORS
197-18 AND OTHER INCAPACITATED PERSONS
197-19 Sec. 885. RECEIVERSHIP. (a) When the estate of a minor or
197-20 other incapacitated person or any portion of the estate of the
197-21 minor or other incapacitated person appears in danger of injury,
197-22 loss, or waste and in need of a guardianship or other
197-23 representative and there is no guardian of the estate who is
197-24 qualified in this state and a guardian is not needed, the county
197-25 judge of the county in which the minor or other incapacitated
197-26 person resides or in which the endangered estate is located shall
197-27 enter an order, with or without application, appointing a suitable
198-1 person as receiver to take charge of the estate. The court order
198-2 shall require a receiver appointed under this section to give bond
198-3 as in ordinary receiverships in an amount the judge deems necessary
198-4 to protect the estate. The court order shall specify the duties
198-5 and powers of the receiver as the judge deems necessary for the
198-6 protection, conservation, and preservation of the estate. The
198-7 clerk shall enter an order made under this section on the minutes
198-8 of the court. The person who is appointed as receiver shall make
198-9 and submit a bond for the judge's approval and shall file the bond,
198-10 when approved, with the clerk. The person who is appointed
198-11 receiver shall proceed to take charge of the endangered estate
198-12 pursuant to the powers and duties vested in the person by the order
198-13 of appointment and subsequent orders made by the judge.
198-14 (b) During the pendency of the receivership, when the needs
198-15 of the minor or other incapacitated person require the use of the
198-16 income or corpus of the estate for the education, clothing, or
198-17 subsistence of the minor or other incapacitated person, the judge,
198-18 with or without application, shall enter an order on the minutes of
198-19 the court that appropriates an amount of income or corpus that is
198-20 sufficient for that purpose. The receiver shall use the amount
198-21 appropriated by the court to pay a claim for the education,
198-22 clothing, or subsistence of the minor or other incapacitated person
198-23 that is presented to the judge for approval and ordered by the
198-24 judge to be paid.
198-25 (c) During the pendency of the receivership, when the
198-26 receiver has on hand an amount of money that belongs to the minor
198-27 or other incapacitated person that is in excess of the amount
199-1 needed for current necessities and expenses, the receiver, under
199-2 direction of the judge, may invest, lend, or contribute the excess
199-3 money or any portion of the money in the manner, for the security,
199-4 and on the terms and conditions provided by this chapter for
199-5 investments, loans, or contributions by guardians. The receiver
199-6 shall report to the judge all transactions made under this
199-7 subsection in the same manner that a report is required of a
199-8 guardian under this chapter.
199-9 (d) All necessary expenses incurred by the receiver in
199-10 administering the estate may be rendered monthly to the judge in
199-11 the form of a sworn statement of account that includes a report of
199-12 the receiver's acts, the condition of the estate, the status of the
199-13 threatened danger to the estate, and the progress made toward
199-14 abatement of the danger. If the judge is satisfied that the
199-15 statement is correct and reasonable in all respects, the judge
199-16 shall promptly enter an order approving the expenses and
199-17 authorizing the receiver to be reimbursed from the funds of the
199-18 estate in the receiver's hands. A receiver shall be compensated
199-19 for services rendered in the receiver's official capacity in the
199-20 same manner and amount as provided by this chapter for similar
199-21 services rendered by guardians of estates.
199-22 (e) When the threatened danger has abated and the estate is
199-23 no longer liable to injury, loss, or waste because there is no
199-24 guardian or other representative of the estate, the receiver shall
199-25 report to the judge, file with the clerk a full and final sworn
199-26 account of all property of the estate the receiver received, had on
199-27 hand when the receivership was pending, all sums paid out, all acts
200-1 performed by the receiver with respect to the estate, and all
200-2 property of the estate that remains in the receiver's hands on the
200-3 date of the report. On the filing of the report, the clerk shall
200-4 issue and cause to be posted a notice to all persons interested in
200-5 the welfare of the minor or other incapacitated person and shall
200-6 give personal notice to the person who has custody of the minor or
200-7 other incapacitated person to appear before the judge at a time and
200-8 place specified in the notice and contest the report and account if
200-9 the person desires.
200-10 (f) If on hearing the receiver's report and account the
200-11 judge is satisfied that the danger of injury, loss, or waste to the
200-12 estate has abated and that the report and account are correct, the
200-13 judge shall enter an order finding that the danger of injury, loss,
200-14 or waste to the estate has abated and shall direct the receiver to
200-15 deliver the estate to the person from whom the receiver took
200-16 possession as receiver, to the person who has custody of the minor
200-17 or other incapacitated person, or to another person as the judge
200-18 may find is entitled to possession of the estate. A person who
200-19 receives the estate under this subsection shall execute and file
200-20 with the clerk an appropriate receipt for the estate that is
200-21 delivered to the person. The judge's order shall discharge the
200-22 receivership and the sureties on the bond of the receiver. If the
200-23 judge is not satisfied that the danger has abated, or if the judge
200-24 is not satisfied with the receiver's report and account, the judge
200-25 shall enter an order that continues the receivership in effect
200-26 until the judge is satisfied that the danger has abated or is
200-27 satisfied with the report and account.
201-1 (g) An order or a bond, report, account, or notice in a
201-2 receivership proceeding must be recorded in the minutes of the
201-3 court.
201-4 SUBPART E. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP
201-5 Sec. 887. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP AND
201-6 ADMINISTRATION OF TERMINATED GUARDIANSHIP ASSETS. (a) When a
201-7 resident person who is a minor or other incapacitated person, or
201-8 the former ward of a guardianship terminated under Subpart C, Part
201-9 4, of this code, who are referred to in this section as "creditor,"
201-10 are without a legal guardian of the person's estate, and the person
201-11 is entitled to money in an amount that is $25,000 or less, the
201-12 right to which is liquidated and is uncontested in any pending
201-13 lawsuit, the debtor may pay the money to the county clerk of the
201-14 county in which the creditor resides to the account of the
201-15 creditor, giving the creditor's name, the nature of the creditor's
201-16 disability, and, if the creditor is a minor, the minor's age, and
201-17 the creditor's post-office address. The receipt for the money
201-18 signed by the clerk is binding on the creditor as of the date of
201-19 receipt and to the extent of the payment. The clerk, by letter
201-20 mailed to the address given by the debtor, shall apprise the
201-21 creditor of the fact that the deposit was made. On receipt of the
201-22 payment by the clerk, the clerk shall call the receipt of the
201-23 payment to the court's attention and shall invest the money as
201-24 authorized under this chapter pursuant to court order in the name
201-25 and for the account of the minor or other person entitled to the
201-26 money. Any increase, dividend, or income from an investment made
201-27 under this section shall be credited to the account of the minor or
202-1 other person entitled to the investment. Any money that is
202-2 deposited under the terms of this section that has not been paid
202-3 out shall be subject to the provisions of this chapter not later
202-4 than October 1, 1993.
202-5 (b) Not later than March 1 of each calendar year, the clerk
202-6 of the court shall make a written report to the court of the status
202-7 of an investment made by the clerk under this section. The report
202-8 must contain:
202-9 (1) the amount of the original investment or the
202-10 amount of the investment at the last annual report, whichever is
202-11 later;
202-12 (2) any increase, dividend, or income from such
202-13 investment since the last annual report;
202-14 (3) the total amount of the investment and all
202-15 increases, dividends, or income at the date of the report; and
202-16 (4) the name of the depository or the type of
202-17 investment.
202-18 (c) The father or mother, or unestranged spouse, of the
202-19 creditor, with priority being given to the spouse who resides in
202-20 this state or if there is no spouse and both father and mother are
202-21 dead or are nonresidents of this state, then the person who resides
202-22 in this state who has actual custody of the creditor, as custodian
202-23 and on filing with the clerk written application and bond approved
202-24 by the county judge of the county, may withdraw the money from the
202-25 clerk for the use and benefit of the creditor, the bond to be in
202-26 double the amount of the money and to be payable to the judge or
202-27 the judge's successors in office and to be conditioned that the
203-1 custodian will use the money for the creditor's benefit under
203-2 directions of the court and that the custodian, when legally called
203-3 on to do so, will faithfully account to the creditor and the
203-4 creditor's heirs or legal representatives for the money and any
203-5 increase to the money on the removal of the disability to which the
203-6 creditor is subject, or on the creditor's death, or the appointment
203-7 of a guardian for the creditor. A fee or commission may not be
203-8 allowed to the custodian for taking care of, handling, or expending
203-9 the money withdrawn by the custodian.
203-10 (d) When the custodian has expended the money in accordance
203-11 with directions of the court or has otherwise complied with the
203-12 terms of the custodian's bond by accounting for the money and any
203-13 increase in the money, the custodian shall file with the county
203-14 clerk of the county the custodian's sworn report of the custodian's
203-15 accounting. The filing of the custodian's report, when approved by
203-16 the court, operates as a discharge of the person as custodian and
203-17 of the person's sureties from all further liability under the bond.
203-18 The court shall satisfy itself that the report is true and correct
203-19 and may require proof as in other cases.
203-20 (e) When a nonresident minor, a nonresident person who is
203-21 adjudged by a court of competent jurisdiction to be incapacitated,
203-22 or the former ward of a guardianship terminated under Subpart C,
203-23 Part 4, of this code who has no legal guardian qualified in this
203-24 state is entitled to money in an amount that is not more than
203-25 $25,000 owing as a result of transactions within this state, the
203-26 right to which is liquidated and is uncontested in any pending
203-27 lawsuit in this state, the debtor in this state may pay the money
204-1 to the guardian of the creditor who is duly qualified in the
204-2 domiciliary jurisdiction or to the county clerk of any county in
204-3 this state in which real property owned by the nonresident person
204-4 is located. If the person is not known to own any real property in
204-5 any county in this state the debtor has the right to pay the money
204-6 to the county clerk of the county of this state in which the debtor
204-7 resides. In either case, the debtor's payment to the clerk is for
204-8 the use and benefit and for the account of the nonresident
204-9 creditor. The receipt for the payment signed by the clerk that
204-10 recites the name of the creditor and the post office address of the
204-11 creditor, if known, is binding on the creditor as of the date and
204-12 to the extent of the payment. The clerk shall handle the money
204-13 paid to the clerk by the debtor in the same manner as provided for
204-14 cases of payments to the accounts of residents of this state under
204-15 Subsections (a)-(d) of this section. All applicable provisions of
204-16 Subsections (a)-(d) of this section apply to the handling and
204-17 disposition of money or any increase, dividend, or income paid to
204-18 the clerk for the use, benefit, and account of the nonresident
204-19 creditor.
204-20 (f) If a person who is authorized to withdraw the money does
204-21 not withdraw the money from the clerk as provided for in this
204-22 section, the creditor, after termination of the creditor's
204-23 disability, or the subsequent personal representative of the
204-24 creditor or the creditor's heirs may withdraw, at any time and
204-25 without special bond for the purpose, the money on simply
204-26 exhibiting to the clerk an order of the county or probate court of
204-27 the county where the money is held by the clerk that directs the
205-1 clerk to deliver the money to the creditor, to the creditor's
205-2 personal representative, or to the creditor's heirs named in the
205-3 order. Before the court issues an order under this subsection, the
205-4 person's identity and the person's credentials must be proved to
205-5 the court's satisfaction.
205-6 (g) When it is made to appear to the judge of a county
205-7 court, district court, or other court of this state, by an
205-8 affidavit executed by the superintendent, business manager, or
205-9 field representative of any eleemosynary institution of this state,
205-10 that a certain inmate in the institution is a person who has a
205-11 mental disability, an incapacitated person, or a person whose
205-12 mental illness or mental incapacity, or both, renders the person
205-13 incapable of caring for himself and of managing the person's own
205-14 property and financial affairs, there is no known legal guardian
205-15 appointed for the estate of the inmate, and there is on deposit in
205-16 the court registry a certain sum of money that belongs to the
205-17 inmate that does not exceed $10,000, the court may order the
205-18 disposition of the funds as provided by this subsection. The
205-19 court, on satisfactory proof by affidavit or otherwise that the
205-20 inmate is a person who has a mental disability, an incapacitated
205-21 person, or a person whose mental illness or mental incapacity, or
205-22 both, renders the inmate incapable of caring for the inmate's self
205-23 and of managing the inmate's own property and financial affairs and
205-24 is without a legally appointed guardian of the inmate's estate, may
205-25 by order direct the clerk of the court to pay the money to the
205-26 institution for the use and benefit of the inmate. The state
205-27 institution to which the payment is made may not be required to
206-1 give bond or security for receiving the fund from the court
206-2 registry, and the receipt from the state institution for the
206-3 payment, or the canceled check or warrant by which the payment was
206-4 made, shall be sufficient evidence of the disposition of the
206-5 payment. The clerk of the court is relieved of further
206-6 responsibility for the disposition. On receipt of the money, the
206-7 institution shall deposit all of the amount of money received to
206-8 the trust account of the inmate. The money deposited by the
206-9 institution in the trust account is to be used by or for the
206-10 personal use of the owner of the trust account under the rules or
206-11 custom of the institution in the expenditure of the funds by the
206-12 inmate or for the use and benefit of the inmate by the responsible
206-13 officer of the institution. This subsection is cumulative of all
206-14 other laws affecting the rights of a person who has a mental
206-15 disability, an incapacitated person, or a person who has a mental
206-16 illness and affecting money that belongs to the person as an inmate
206-17 of a state eleemosynary institution. If the inmate dies leaving a
206-18 balance in the inmate's trust account, the balance may be applied
206-19 to the burial expenses of the inmate or applied to the care,
206-20 support, and treatment account of the inmate at the eleemosynary
206-21 institution. After the expenditure of all funds in the trust
206-22 account or after the death of the inmate, the responsible officer
206-23 shall furnish a statement of expenditures of the funds to the
206-24 nearest relative who is entitled to receive the statement. A copy
206-25 of the statement shall be filed with the court that first granted
206-26 the order to dispose of the funds in accordance with the provisions
206-27 of this chapter.
207-1 SUBPART F. SALE OF PROPERTY OF MINOR
207-2 Sec. 889. SALE OF PROPERTY OF A MINOR BY A PARENT WITHOUT
207-3 GUARDIANSHIP. (a) When the value of the minor's interest in real
207-4 or personal property in an estate does not exceed $25,000, a
207-5 natural or adoptive parent of a minor who is not a ward may apply
207-6 to the court for an order to sell the real or personal property of
207-7 a minor in an estate without being appointed guardian. A minor may
207-8 not disaffirm a sale of property pursuant to a court order under
207-9 this section.
207-10 (b) The parent shall apply to the court under oath for the
207-11 sale of the property. Venue for the application under this section
207-12 is the same as venue for an application for the appointment of a
207-13 guardian for a minor. The application must contain:
207-14 (1) a legal description of the real property and a
207-15 description that identifies the personal property;
207-16 (2) the name of the minor and the minor's interest in
207-17 the property;
207-18 (3) the name of the purchaser;
207-19 (4) a statement that the sale of the minor's interest
207-20 in the property is for cash; and
207-21 (5) a statement that all funds received by the parent
207-22 shall be used for the use and benefit of the minor.
207-23 (c) On receipt of the application, the court shall set the
207-24 application for hearing at a date not earlier than five days from
207-25 the date of the filing of the application. If the court deems it
207-26 necessary, the court may cause citation to be issued.
207-27 (d) At the time of the hearing of the application filed
208-1 under this section, the court shall order the sale of the property
208-2 if the court is satisfied from the evidence that the sale is in the
208-3 best interests of the minor. The court may require an independent
208-4 appraisal of the property to be sold to establish the minimum sale
208-5 price.
208-6 (e) When the court enters the order of sale, the purchaser
208-7 of the property shall pay the proceeds of the sale belonging to the
208-8 minor into the court registry.
208-9 (f) Nothing in this section prevents the proceeds deposited
208-10 in the registry from being withdrawn from the court registry under
208-11 Section 885 of this code.
208-12 SUBPART G. NONRESIDENT GUARDIANS
208-13 Sec. 891. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
208-14 FROM STATE. A nonresident guardian, whether or not qualified under
208-15 this code, may remove personal property of the ward out of the
208-16 state if:
208-17 (1) the removal does not conflict with the tenure of
208-18 the property or the terms and limitations of the guardianship under
208-19 which the property is held; and
208-20 (2) all debts known to exist against the estate in
208-21 this state are paid or secured by bond payable to and approved by
208-22 the judge of the court in which guardianship proceedings are
208-23 pending in this state.
208-24 Sec. 892. DELIVERY OF PROPERTY. A resident executor,
208-25 administrator, or guardian who has any of the estate of a ward may
208-26 be ordered by the court to deliver the estate to a duly qualified
208-27 and acting nonresident guardian of the ward.
209-1 SECTION 2. Section 2(e), Texas Probate Code, is amended to
209-2 read as follows:
209-3 (e) Nature of Proceeding. The administration of the estate
209-4 of a decedent <or ward>, from the filing of the application for
209-5 probate and administration, or for administration, until the decree
209-6 of final distribution and the discharge of the last personal
209-7 representative, shall be considered as one proceeding for purposes
209-8 of jurisdiction. The entire proceeding is a proceeding in rem.
209-9 SECTION 3. Section 3, Texas Probate Code, is amended to read
209-10 as follows:
209-11 Sec. 3. Definitions and Use of Terms. Except as otherwise
209-12 provided by Chapter XIII of this Code, when <When> used in this
209-13 Code, unless otherwise apparent from the context:
209-14 (a) "Authorized corporate surety" means a domestic or
209-15 foreign corporation authorized to do business in the State of Texas
209-16 for the purpose of issuing surety, guaranty or indemnity bonds
209-17 guaranteeing the fidelity of executors and<,> administrators<, and
209-18 guardians>.
209-19 (b) "Child" includes an adopted child, whether adopted
209-20 by any existing or former statutory procedure or by acts of
209-21 estoppel, but, unless expressly so stated herein, does not include
209-22 a child who has no presumed father.
209-23 (c) "Claims" include liabilities of a decedent which
209-24 survive, including taxes, whether arising in contract or in tort or
209-25 otherwise, funeral expenses, the expense of a tombstone, expenses
209-26 of administration, estate and inheritance taxes, <liabilities
209-27 against the estate of a minor or incompetent,> and debts due such
210-1 estates.
210-2 (d) "Corporate fiduciary" means a trust company or
210-3 bank having trust powers, existing or doing business under the laws
210-4 of this state or of the United States, which is authorized by law
210-5 to act under the order or appointment of any court of record,
210-6 without giving bond, as <guardian,> receiver, trustee, executor,
210-7 administrator, or, although without general depository powers,
210-8 depository for any moneys paid into court, or to become sole
210-9 guarantor or surety in or upon any bond required to be given under
210-10 the laws of this state.
210-11 (e) "County Court" and "Probate Court" are synonymous
210-12 terms and denote county courts in the exercise of their probate
210-13 jurisdiction, courts created by statute and authorized to exercise
210-14 original probate jurisdiction, and district courts exercising
210-15 probate jurisdiction in contested matters.
210-16 (f) "County Judge," "Probate Judge," and "Judge"
210-17 denote the presiding judge of any court having original
210-18 jurisdiction over probate proceedings, whether it be a county court
210-19 in the exercise of its probate jurisdiction, a court created by
210-20 statute and authorized to exercise probate jurisdiction, or a
210-21 district court exercising probate jurisdiction in contested
210-22 matters.
210-23 (g) "Court" denotes and includes both a county court
210-24 in the exercise of its probate jurisdiction, a court created by
210-25 statute and authorized to exercise original probate jurisdiction,
210-26 or a district court exercising original probate jurisdiction in
210-27 contested matters.
211-1 (h) "Devise," when used as a noun, includes a
211-2 testamentary disposition of real or personal property, or of both.
211-3 When used as a verb, "devise" means to dispose of real or personal
211-4 property, or of both, by will.
211-5 (i) "Devisee" includes legatee.
211-6 (j) "Distributee" denotes a person entitled to the
211-7 estate of a decedent under a lawful will, or under the statutes of
211-8 descent and distribution.
211-9 (k) "Docket" means the probate docket.
211-10 (l) "Estate" denotes the real and personal property of
211-11 a decedent <or ward>, both as such property originally existed and
211-12 as from time to time changed in form by sale, reinvestment, or
211-13 otherwise, and as augmented by any accretions and additions thereto
211-14 (including any property to be distributed to the representative of
211-15 the decedent by the trustee of a trust which terminates upon the
211-16 decedent's death) and substitutions therefor, and as diminished by
211-17 any decreases therein and distributions therefrom.
211-18 (m) "Exempt property" refers to that property of a
211-19 decedent's estate which is exempt from execution or forced sale by
211-20 the Constitution or laws of this State, and to the allowance in
211-21 lieu thereof.
211-22 (n) "Habitual drunkard" and "common drunkard" are
211-23 synonymous and denote one who, by reason of the habitual use of
211-24 intoxicating liquor, drugs, or a toxic inhalant as defined by
211-25 Section 462.001, Health and Safety Code, is incapable of taking
211-26 care of himself or managing his property and financial affairs.
211-27 (o) "Heirs" denote those persons, including the
212-1 surviving spouse, who are entitled under the statutes of descent
212-2 and distribution to the estate of a decedent who dies intestate.
212-3 (p) "Incompetents" or "Incompetent persons" are
212-4 persons non compos mentis, mentally disabled persons, insane
212-5 persons, common or habitual drunkards, and other persons who are
212-6 mentally incompetent to care for themselves or to manage their
212-7 property and financial affairs.
212-8 (q) "Independent executor" means the personal
212-9 representative of an estate under independent administration as
212-10 provided in Section 145 of this Code. The term "independent
212-11 executor" includes the term "independent administrator."
212-12 (r) "Interested persons" or "persons interested" means
212-13 heirs, devisees, spouses, creditors, or any others having a
212-14 property right in, or claim against, the estate being administered;
212-15 and anyone interested in the welfare of a minor or incompetent
212-16 ward.
212-17 (s) "Legacy" includes any gift or devise by will,
212-18 whether of personalty or realty. "Legatee" includes any person
212-19 entitled to a legacy under a will.
212-20 (t) "Minors" are all persons under eighteen years of
212-21 age who have never been married or who have not had disabilities of
212-22 minority removed for general purposes.
212-23 (u) "Minutes" means the probate minutes.
212-24 (v) "Mortgage" or "Lien" includes deed of trust,
212-25 vendor's lien, chattel mortgage, mechanic's, materialman's or
212-26 laborer's lien, judgment, attachment or garnishment lien, pledge by
212-27 hypothecation, and Federal or State tax liens.
213-1 (w) "Net estate" means the real and personal property
213-2 of a decedent, exclusive of homestead rights, exempt property, the
213-3 family allowance and enforceable claims against the estate.
213-4 (x) "Person" includes natural persons and
213-5 corporations.
213-6 (y) "Persons of unsound mind" are persons non compos
213-7 mentis, mentally disabled persons, insane persons, and other
213-8 persons who are mentally incompetent to care for themselves or to
213-9 manage their property and financial affairs.
213-10 (z) "Personal property" includes interests in goods,
213-11 money, choses in action, evidence of debts, and chattels real.
213-12 (aa) "Personal representative" or "Representative"
213-13 includes executor, independent executor, administrator, independent
213-14 administrator, temporary administrator, <guardian, and temporary
213-15 guardian,> together with their successors. The inclusion of
213-16 independent executors herein shall not be held to subject such
213-17 representatives to control of the courts in probate matters with
213-18 respect to settlement of estates except as expressly provided by
213-19 law.
213-20 (bb) "Probate matter," "Probate proceedings,"
213-21 "Proceeding in probate," and "Proceedings for probate" are
213-22 synonymous and include a matter or proceeding relating to
213-23 <guardianship, as well as a matter or proceeding relating to> the
213-24 estate of a decedent<, and proceedings regarding incompetents>.
213-25 (cc) "Property" includes both real and personal
213-26 property.
213-27 (dd) "Real property" includes estates and interests in
214-1 lands, corporeal or incorporeal, legal or equitable, other than
214-2 chattels real.
214-3 (ee) "Surety" includes both personal and corporate
214-4 sureties.
214-5 (ff) "Will" includes codicil; it also includes a
214-6 testamentary instrument which merely:
214-7 (1) appoints an executor or guardian;
214-8 (2) directs how property may not be disposed of;
214-9 or
214-10 (3) revokes another will.
214-11 (gg) The singular number includes the plural; the
214-12 plural number includes the singular.
214-13 (hh) The masculine gender includes the feminine and
214-14 neuter.
214-15 (ii) "Statutory probate court" refers to any statutory
214-16 court presently in existence or created after the passage of this
214-17 Act, the jurisdiction of which is limited by statute to the general
214-18 jurisdiction of a probate court, and such courts whose statutorily
214-19 designated name contains the word "probate." County courts at law
214-20 exercising probate jurisdiction are not statutory probate courts
214-21 under this Code unless their statutorily designated name includes
214-22 the word "probate."
214-23 (jj) "Next of kin" includes an adopted child or his or
214-24 her descendents and the adoptive parent of the adopted child.
214-25 (kk) "Charitable organization" means:
214-26 (1) a nonprofit corporation, trust, community
214-27 chest, fund, foundation, or other entity that is exempt from
215-1 federal income tax under Section 501(c)(3) of the Internal Revenue
215-2 Code of 1986 because the entity is organized and operated
215-3 exclusively for religious, charitable, scientific, educational, or
215-4 literary purposes, testing for public safety, prevention of cruelty
215-5 to children or animals, or promotion of amateur sports competition;
215-6 or
215-7 (2) any other entity or organization that is
215-8 organized and operated exclusively for the purposes listed in
215-9 Section 501(c)(3) of the Internal Revenue Code of 1986.
215-10 (ll) "Governmental agency of the state" means:
215-11 (1) an incorporated city or town, a county, a
215-12 public school district, a special-purpose district or authority, or
215-13 a district, county, or justice of the peace court;
215-14 (2) a board, commission, department, office, or
215-15 other agency in the executive branch of state government, including
215-16 an institution of higher education as defined by Section 61.003,
215-17 Education Code;
215-18 (3) the legislature or a legislative agency; and
215-19 (4) the supreme court, the court of criminal
215-20 appeals, a court of appeals, or the State Bar of Texas or another
215-21 judicial agency having statewide jurisdiction.
215-22 SECTION 4. Section 4, Texas Probate Code, is amended to read
215-23 as follows:
215-24 Sec. 4. Jurisdiction of County Court With Respect to Probate
215-25 Proceedings. The county court shall have the general jurisdiction
215-26 of a probate court. It shall probate wills, <appoint guardians of
215-27 minors and incompetents,> grant letters testamentary and of
216-1 administration <and guardianship>, settle accounts of personal
216-2 representatives, and transact all business appertaining to estates
216-3 subject to administration <or guardianship>, including the
216-4 settlement, partition, and distribution of such estates. <It may
216-5 also appoint guardians for other persons where it is necessary that
216-6 a guardian be appointed to receive funds from any governmental
216-7 source or agency.>
216-8 SECTION 5. Sections 5(a), (b), (c), and (e), Texas Probate
216-9 Code, are amended to read as follows:
216-10 (a) The district court shall have original control and
216-11 jurisdiction over executors and<,> administrators<, guardians and
216-12 wards> under such regulations as may be prescribed by law.
216-13 (b) In those counties where there is no statutory probate
216-14 court, county court at law or other statutory court exercising the
216-15 jurisdiction of a probate court, all applications, petitions and
216-16 motions regarding probate and<,> administrations<, guardianships,
216-17 limited guardianships, and mental illness matters> shall be filed
216-18 and heard in the county court, except that in contested probate
216-19 matters, the judge of the county court may on his own motion (or
216-20 shall on the motion of any party to the proceeding, according to
216-21 the motion) request as provided by Section 25.0022, Government
216-22 Code, the assignment of a statutory probate judge to hear the
216-23 contested portion of the proceeding, or transfer the contested
216-24 portion of the proceeding to the district court, which may then
216-25 hear contested matter as if originally filed in district court.
216-26 The county court shall continue to exercise jurisdiction over the
216-27 management of the estate with the exception of the contested matter
217-1 until final disposition of the contested matter is made by the
217-2 assigned judge or the district court. In contested matters
217-3 transferred to the district court in those counties, the district
217-4 court, concurrently with the county court, shall have the general
217-5 jurisdiction of a probate court. Upon resolution of all pending
217-6 contested matters, the contested portion of the probate proceeding
217-7 shall be transferred by the district court to the county court for
217-8 further proceedings not inconsistent with the orders of the
217-9 district court. If a contested portion of the proceeding is
217-10 transferred to a district court under this subsection, the clerk of
217-11 the district court may perform in relation to the transferred
217-12 portion of the proceeding any function a county clerk may perform
217-13 in that type of contested proceeding.
217-14 (c) In those counties where there is a statutory probate
217-15 court, county court at law, or other statutory court exercising the
217-16 jurisdiction of a probate court, all applications, petitions and
217-17 motions regarding probate and<,> administrations<, guardianships,
217-18 limited guardianships, and mental illness matters> shall be filed
217-19 and heard in such courts and the constitutional county court,
217-20 rather than in the district courts, unless otherwise provided by
217-21 the legislature, and the judges of such courts may hear any of such
217-22 matters sitting for the judge of any of such courts. In contested
217-23 probate matters, the judge of the constitutional county court may
217-24 on his own motion, and shall on the motion of any party to the
217-25 proceeding, transfer the proceeding to the statutory probate court,
217-26 county court at law, or other statutory court exercising the
217-27 jurisdiction of a probate court, which may then hear the proceeding
218-1 as if originally filed in such court.
218-2 (e) All courts exercising original probate jurisdiction
218-3 shall have the power to hear all matters incident to an estate.
218-4 When a surety is called on to perform in place of an administrator
218-5 <or guardian>, all courts exercising original probate jurisdiction
218-6 may award judgment against the personal representative in favor of
218-7 his surety in the same suit.
218-8 SECTION 6. Sections 5A(a) and (b), Texas Probate Code, are
218-9 amended to read as follows:
218-10 (a) In proceedings in the constitutional county courts and
218-11 statutory county courts at law, the phrases "appertaining to
218-12 estates" and "incident to an estate" in this Code include the
218-13 probate of wills, the issuance of letters testamentary and of
218-14 administration, the determination of heirship, and also include,
218-15 but are not limited to, all claims by or against an estate, all
218-16 actions for trial of title to land incident to an estate and for
218-17 the enforcement of liens thereon incident to an estate, all actions
218-18 for trial of the right of property incident to an estate, and
218-19 actions to construe wills, and generally all matters relating to
218-20 the settlement, partition, and distribution of estates of <wards
218-21 and> deceased persons.
218-22 (b) In proceedings in the statutory probate courts and
218-23 district courts, the phrases "appertaining to estates" and
218-24 "incident to an estate" in this Code include the probate of wills,
218-25 the issuance of letters testamentary and of administration, and the
218-26 determination of heirship, and also include, but are not limited
218-27 to, all claims by or against an estate, all actions for trial of
219-1 title to land and for the enforcement of liens thereon, all actions
219-2 for trial of the right of property, all actions to construe wills,
219-3 the interpretation and administration of testamentary trusts and
219-4 the applying of constructive trusts, and generally all matters
219-5 relating to the settlement, partition, and distribution of estates
219-6 of <wards and> deceased persons. All statutory probate courts may,
219-7 in the exercise of their jurisdiction, notwithstanding any other
219-8 provisions of this Code, hear all suits, actions, and applications
219-9 filed against or on behalf of any <guardianship,> heirship
219-10 proceeding<,> or decedent's estate, including estates administered
219-11 by an independent executor. This subsection shall be construed in
219-12 conjunction with and in harmony with Section 145 and all other
219-13 sections of this Code dealing with independent executors, but shall
219-14 not be construed so as to increase permissible judicial control
219-15 over independent executors. All statutory probate courts shall
219-16 have the same powers over independent executors that are
219-17 exercisable by the district courts. In situations where the
219-18 jurisdiction of a statutory probate court is concurrent with that
219-19 of a district court, any cause of action appertaining to estates or
219-20 incident to an estate shall be brought in a statutory probate court
219-21 rather than in the district court.
219-22 SECTION 7. Section 12(c), Texas Probate Code, is amended to
219-23 read as follows:
219-24 (c) Suit for Fiduciary. No security for costs shall be
219-25 required of an executor or<,> administrator<, or guardian>
219-26 appointed by a court of this state in any suit brought by him in
219-27 his fiduciary character.
220-1 SECTION 8. Section 13, Texas Probate Code, is amended to
220-2 read as follows:
220-3 Sec. 13. Judge's Probate Docket. The county clerk shall
220-4 keep a record book to be styled "Judge's Probate Docket," and shall
220-5 enter therein:
220-6 (a) The name of each person upon whose person or
220-7 estate proceedings are had or sought to be had.
220-8 (b) The name of the executor or administrator <or
220-9 guardian of such estate or person,> or of the applicant for
220-10 letters.
220-11 (c) The date of the filing of the original application
220-12 for probate proceedings.
220-13 (d) A minute of each order, judgment, decree, and
220-14 proceeding had in each estate, with the date thereof.
220-15 (e) A number for each estate upon the docket in the
220-16 order in which proceedings are commenced, and each paper filed in
220-17 an estate shall be given the corresponding docket number of the
220-18 estate.
220-19 SECTION 9. Section 14, Texas Probate Code, is amended to
220-20 read as follows:
220-21 Sec. 14. Claim Docket. The county clerk shall also keep a
220-22 record book to be styled "Claim Docket," and shall enter therein
220-23 all claims presented against an estate for approval by the court.
220-24 This docket shall be ruled in sixteen columns at proper intervals
220-25 from top to bottom, with a short note of the contents at the top of
220-26 each column. One or more pages shall be assigned to each estate.
220-27 The following information shall be entered in the respective
221-1 columns beginning with the first or marginal column: The names of
221-2 claimants in the order in which their claims are filed; the amount
221-3 of the claim; its date; the date of filing; when due; the date from
221-4 which it bears interest; the rate of interest; when allowed by the
221-5 executor or administrator <or guardian>; the amount allowed; the
221-6 date of rejection; when approved; the amount approved; when
221-7 disapproved; the class to which the claim belongs; when established
221-8 by judgment of a court; the amount of such judgment.
221-9 SECTION 10. Section 15, Texas Probate Code, is amended to
221-10 read as follows:
221-11 Sec. 15. Probate Minutes and Papers to be Recorded Therein.
221-12 The county clerk shall keep a record book styled "Probate Minutes,"
221-13 and shall enter therein in full all orders, judgments, decrees, and
221-14 proceedings of the court, together with the following:
221-15 (a) All applications for the probate of wills and for
221-16 the granting of administration <or guardianship>.
221-17 (b) All citations and notices, whether published or
221-18 posted, with the returns thereon.
221-19 (c) All wills and the testimony upon which the same
221-20 are admitted to probate, provided that the substance only of
221-21 depositions shall be recorded.
221-22 (d) All bonds and official oaths.
221-23 (e) All inventories, appraisements, and lists of
221-24 claims.
221-25 (f) All exhibits and accounts.
221-26 (g) All reports of hiring, renting, or sale.
221-27 (h) All applications for sale or partition of real
222-1 estate and reports of sale and of commissioners of partition.
222-2 (i) All applications for authority to execute leases
222-3 for mineral development, or for pooling or unitization of lands,
222-4 royalty, or other interest in minerals, or to lend or invest money.
222-5 (j) All reports of lending or investing money.
222-6 SECTION 11. Section 19, Texas Probate Code, is amended to
222-7 read as follows:
222-8 Sec. 19. Call of the Dockets. The judge of the court in
222-9 which probate proceedings are pending, at such times as he shall
222-10 determine, shall call the estates of decedents<, minors and
222-11 incompetents> in their regular order upon both the probate and
222-12 claim dockets and make such orders as shall be necessary.
222-13 SECTION 12. Section 24, Texas Probate Code, is amended to
222-14 read as follows:
222-15 Sec. 24. Enforcement of Orders. The county or probate judge
222-16 may enforce obedience to all his lawful orders against executors
222-17 and<,> administrators <and guardians> by attachment and
222-18 imprisonment, but no such imprisonment shall exceed three days for
222-19 any one offense, unless otherwise expressly so provided in this
222-20 Code.
222-21 SECTION 13. Section 26, Texas Probate Code, is amended to
222-22 read as follows:
222-23 Sec. 26. Attachments for Property. Whenever complaint in
222-24 writing, under oath, shall be made to the county or probate judge
222-25 by any person interested in the estate of a decedent<, minor or
222-26 incompetent> that the executor or administrator <or guardian> is
222-27 about to remove said estate, or any part thereof, beyond the limits
223-1 of the State, such judge may order a writ to issue, directed "to
223-2 any sheriff or any constable within the State of Texas," commanding
223-3 him to seize such estate, or any part thereof, and hold the same
223-4 subject to such further orders as such judge shall make on such
223-5 complaint. No such writ shall issue unless the complainant shall
223-6 give bond, in such sum as the judge shall require, payable to the
223-7 executor or administrator <or guardian> of such estate, conditioned
223-8 for the payment of all damages and costs that shall be recovered
223-9 for the wrongful suing out of such writ. Provided, however, that
223-10 no writ of attachment directed to the sheriff or any constable of a
223-11 specific county within this State shall be held defective if such
223-12 writ was properly executed within such county by such officer.
223-13 SECTION 14. Section 28, Texas Probate Code, is amended to
223-14 read as follows:
223-15 Sec. 28. Personal Representative to Serve Pending Appeal of
223-16 Appointment. Pending appeals from orders or judgments appointing
223-17 administrators <or guardians> or temporary administrators <or
223-18 guardians>, the appointees shall continue to act as such and shall
223-19 continue the prosecution of any suits then pending in favor of the
223-20 estate.
223-21 SECTION 15. Section 29, Texas Probate Code, is amended to
223-22 read as follows:
223-23 Sec. 29. Appeal Bonds of Personal Representatives. When an
223-24 appeal is taken by an executor or<,> administrator<, or guardian>,
223-25 no bond shall be required, unless such appeal personally concerns
223-26 him, in which case he must give the bond.
223-27 SECTION 16. Section 31, Texas Probate Code, is amended to
224-1 read as follows:
224-2 Sec. 31. Bill of Review. Any person interested may, by a
224-3 bill of review filed in the court in which the probate proceedings
224-4 were had, have any decision, order, or judgment rendered by the
224-5 court, or by the judge thereof, revised and corrected on showing
224-6 error therein; but no process or action under such decision, order
224-7 or judgment shall be stayed except by writ of injunction, and no
224-8 bill of review shall be filed after two years have elapsed from the
224-9 date of such decision, order, or judgment. <Persons non compos
224-10 mentis and minors shall have two years after the removal of their
224-11 respective disabilities within which to apply for a bill of
224-12 review.>
224-13 SECTION 17. Section 32, Texas Probate Code, is amended to
224-14 read as follows:
224-15 Sec. 32. Common Law Applicable. The rights, powers and
224-16 duties of executors and<,> administrators<, and guardians> shall be
224-17 governed by the principles of the common law, when the same do not
224-18 conflict with the provisions of the statutes of this State.
224-19 SECTION 18. Section 33(j), Texas Probate Code, is amended to
224-20 read as follows:
224-21 (j) Request for Notice. At any time after an application is
224-22 filed for the purpose of commencing any proceeding in probate,
224-23 including, but not limited to, a proceeding for the probate of a
224-24 will, grant of letters testamentary or of administration and<,>
224-25 determination of heirship, <and the grant of letters of
224-26 guardianship,> any person interested in the estate <or welfare of a
224-27 ward,> may file with the clerk a request in writing that he be
225-1 notified of any and all, or of any specifically designated,
225-2 motions, applications, or pleadings filed by any person, or by any
225-3 particular persons specifically designated in the request. The
225-4 fees and costs for such notices shall be borne by the person
225-5 requesting them, and the clerk may require a deposit to cover the
225-6 estimated costs of furnishing such person with the notice or
225-7 notices requested. The clerk shall thereafter send to such person
225-8 by ordinary mail copies of any of the documents specified in the
225-9 request. Failure of the clerk to comply with the request shall not
225-10 invalidate any proceeding.
225-11 SECTION 19. Section 34A, Texas Probate Code, is amended to
225-12 read as follows:
225-13 Sec. 34A. <GUARDIANS AND> Attorneys Ad Litem. The judge of
225-14 a probate court may appoint <a guardian ad litem,> an attorney ad
225-15 litem<, or, if necessary, both,> to represent the interests of a
225-16 person having a legal disability, a nonresident, an unborn or
225-17 unascertained person, or an unknown heir in any probate proceeding.
225-18 Each <guardian ad litem and> attorney ad litem appointed under this
225-19 section is entitled to reasonable compensation for services in the
225-20 amount set by the court and to be taxed as costs in the proceeding.
225-21 SECTION 20. Section 35, Texas Probate Code, is amended to
225-22 read as follows:
225-23 Sec. 35. Waiver of Notice. Any person legally competent who
225-24 is interested in any hearing in a proceeding in probate may, in
225-25 person or by attorney, waive in writing notice of such hearing. A
225-26 <guardian of the estate or a guardian ad litem may make such a
225-27 waiver on behalf of his ward, and a> trustee may make such a waiver
226-1 on behalf of the beneficiary of his trust. A consul or other
226-2 representative of a foreign government, whose appearance has been
226-3 entered as provided by law on behalf of any person residing in a
226-4 foreign country, may make such waiver of notice on behalf of such
226-5 person. Any person who submits to the jurisdiction of the court in
226-6 any hearing shall be deemed to have waived notice thereof.
226-7 SECTION 21. Section 36, Texas Probate Code, is amended to
226-8 read as follows:
226-9 Sec. 36. Duty and Responsibility of Judge. It shall be the
226-10 duty of each county and probate court to use reasonable diligence
226-11 to see that personal representatives of estates being administered
226-12 under orders of the court<, guardians of the persons of wards,> and
226-13 other officers of the court<,> perform the duty enjoined upon them
226-14 by law pertaining to such estates <and wards>. The judge shall
226-15 annually, if in his opinion the same be necessary, examine the
226-16 condition of each of said estates<, the well-being of each ward of
226-17 the court,> and the solvency of the bonds of personal
226-18 representatives of estates <estate and guardians of persons>. He
226-19 shall, at any time he finds that the personal representative's bond
226-20 is not sufficient to protect such estate <or ward>, require such
226-21 personal representatives to execute a new bond in accordance with
226-22 law. In each case, he shall notify the personal representative,
226-23 and the sureties on the bond, as provided by law; and should damage
226-24 or loss result to estates <or wards> through the gross neglect of
226-25 the judge to use reasonable diligence in the performance of his
226-26 duty, he shall be liable on his bond to those damaged by such
226-27 neglect.
227-1 SECTION 22. The heading to Chapter V, Texas Probate Code, is
227-2 amended to read as follows:
227-3 CHAPTER V. PROBATE AND<,> GRANT OF ADMINISTRATION<,
227-4 AND GUARDIANSHIP>
227-5 SECTION 23. The heading to Chapter VI, Texas Probate Code,
227-6 is amended to read as follows:
227-7 CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION
227-8 <AND GUARDIANSHIP>
227-9 SECTION 24. The heading to Part 1, Chapter VI, Texas Probate
227-10 Code, is amended to read as follows:
227-11 PART 1. TEMPORARY ADMINISTRATION IN THE INTEREST OF <(A)>
227-12 ESTATES OF DEPENDENTS<, AND (B) PERSONS OR ESTATES OF MINORS
227-13 AND INCOMPETENTS>
227-14 SECTION 25. Section 133, Texas Probate Code, is amended to
227-15 read as follows:
227-16 Sec. 133. Powers of Temporary ADMINISTRATORS <Appointees>.
227-17 <(a) Temporary Administrators.> Temporary administrators shall
227-18 have and exercise only such rights and powers as are specifically
227-19 expressed in the order of the court appointing them, and as may be
227-20 expressed in subsequent orders of the court. Where a court, by a
227-21 subsequent order, extends the rights and powers of a temporary
227-22 administrator, it may require additional bond commensurate with
227-23 such extension. Any acts performed by temporary administrators
227-24 that are not so expressly authorized shall be void.
227-25 <(b) Temporary Guardianships. All the provisions of this
227-26 Code relating to the guardianship of persons and estates of minors,
227-27 persons of unsound mind, and habitual drunkards shall apply to
228-1 temporary guardianship of the persons and estates of such persons,
228-2 in so far as the same are applicable.>
228-3 SECTION 26. The heading to Section 135, Texas Probate Code,
228-4 is amended to read as follows:
228-5 Sec. 135. Closing Temporary Administration <or Guardianship>
228-6 SECTION 27. The heading to Chapter VII, Texas Probate Code,
228-7 is amended to read as follows:
228-8 CHAPTER VII. EXECUTORS AND<,> ADMINISTRATORS<,
228-9 AND GUARDIANS>
228-10 SECTION 28. Section 186, Texas Probate Code, is amended to
228-11 read as follows:
228-12 Sec. 186. Letters or Certificate Made Evidence. Letters
228-13 testamentary or<,> of administration<, or of guardianship,> or a
228-14 certificate of the clerk of the court which granted the same, under
228-15 the seal of such court, that said letters have been issued, shall
228-16 be sufficient evidence of the appointment and qualification of the
228-17 personal representative of an estate <or ward> and of the date of
228-18 qualification.
228-19 SECTION 29. Section 189, Texas Probate Code, is amended to
228-20 read as follows:
228-21 Sec. 189. How Executors AND<,> Administrators<, and
228-22 Guardians> Shall Qualify. A personal representative shall be
228-23 deemed to have duly qualified when he shall have taken and filed
228-24 his oath and made the required bond, had the same approved by the
228-25 judge, and filed it with the clerk. In case of an executor <or
228-26 guardian> who is not required to make bond, he shall be deemed to
228-27 have duly qualified when he shall have taken and filed his oath
229-1 required by law.
229-2 SECTION 30. Section 192, Texas Probate Code, is amended to
229-3 read as follows:
229-4 Sec. 192. Time for Taking Oath and Giving Bond. The oath of
229-5 a personal representative may be taken and subscribed, or his bond
229-6 may be given and approved, at any time before the expiration of
229-7 twenty days after the date of the order granting letters
229-8 testamentary or of administration <or of guardianship>, as the case
229-9 may be, or before such letters shall have been revoked for a
229-10 failure to qualify within the time allowed. All such oaths may be
229-11 taken before any person authorized to administer oaths under the
229-12 laws of this State.
229-13 SECTION 31. Section 194, Texas Probate Code, is amended to
229-14 read as follows:
229-15 Sec. 194. Bonds of Personal Representatives of Estates.
229-16 Except when bond is not required under the provisions of this Code,
229-17 before the issuance of letters testamentary<,> or of administration
229-18 <or guardianship of estates>, the recipient of letters shall enter
229-19 into bond conditioned as required by law, payable to the county
229-20 judge or probate judge of the county in which the probate
229-21 proceedings are pending and to his successors in office. Such
229-22 bonds shall bear the written approval of either of such judges in
229-23 his official capacity, and shall be executed and approved in
229-24 accordance with the following rules:
229-25 1. Court to Fix Penalty. The penalty of the bond
229-26 shall be fixed by the judge, in an amount deemed sufficient to
229-27 protect the estate and its creditors, as hereinafter provided.
230-1 2. Bond to Protect Creditors Only, When. If the
230-2 person to whom letters testamentary or of administration is granted
230-3 is also entitled to all of the decedent's estate, after payment of
230-4 debts, the bond shall be in an amount sufficient to protect
230-5 creditors only, notwithstanding the rules applicable generally to
230-6 bonds of personal representatives of estates.
230-7 3. Before Fixing Penalty, Court to Hear Evidence. In
230-8 any case where a bond is, or shall be, required of a personal
230-9 representative of an estate, the court shall, before fixing the
230-10 penalty of the bond, hear evidence and determine:
230-11 (a) The amount of cash on hand and where
230-12 deposited, and the amount of cash estimated to be needed for
230-13 administrative purposes, including operation of a business,
230-14 factory, farm or ranch owned by the estate, and expenses of
230-15 administration for one (1) year; and
230-16 (b) The revenue anticipated to be received in
230-17 the succeeding twelve (12) months from dividends, interest,
230-18 rentals, or use of real or personal property belonging to the
230-19 estate and the aggregate amount of any installments or periodical
230-20 payments to be collected; and
230-21 (c) The estimated value of certificates of
230-22 stock, bonds, notes, or securities of the estate or ward, the name
230-23 of the depository, if any, in which said assets are held for
230-24 safekeeping, the face value of life insurance or other policies
230-25 payable to the person on whose estate administration is sought, or
230-26 to such estate, and such other personal property as is owned by the
230-27 estate, or by one under disability; and
231-1 (d) The estimated amount of debts due and owing
231-2 by the estate or ward.
231-3 4. Penalty of Bond. The penalty of the bond shall be
231-4 fixed by the judge in an amount equal to the estimated value of all
231-5 personal property belonging to the estate, or to the person under
231-6 disability, together with an additional amount to cover revenue
231-7 anticipated to be derived during the succeeding twelve (12) months
231-8 from interest, dividends, collectible claims, the aggregate amount
231-9 of any installments or periodical payments exclusive of income
231-10 derived or to be derived from federal social security payments, and
231-11 rentals for use of real and personal property; provided, that the
231-12 penalty of the original bond shall be reduced in proportion to the
231-13 amount of cash or value of securities or other assets authorized or
231-14 required to be deposited or placed in safekeeping by order of
231-15 court, or voluntarily made by the representative or by his sureties
231-16 as hereinafter provided in Subdivisions 6 and 7 hereof.
231-17 5. Agreement as to Deposit of Assets. It shall be
231-18 lawful, and the court may require such action when deemed in the
231-19 best interest of an estate <or ward>, for a personal representative
231-20 to agree with the surety or sureties, either corporate or personal,
231-21 for the deposit of any or all cash, and safekeeping of other assets
231-22 of the estate in a domestic state or national bank, trust company,
231-23 savings and loan association, or other domestic corporate
231-24 depository, duly incorporated and qualified to act as such under
231-25 the laws of this State or of the United States, if such deposit is
231-26 otherwise proper, in such manner as to prevent the withdrawal of
231-27 such moneys or other assets without the written consent of the
232-1 surety, or an order of the court made on such notice to the surety
232-2 as the court shall direct. No such agreement shall in any manner
232-3 release from or change the liability of the principal or sureties
232-4 as established by the terms of the bond.
232-5 6. Deposits Authorized or Required, When. Cash or
232-6 securities or other personal assets of an estate <or ward> or which
232-7 an estate <or ward> is entitled to receive may, and if deemed by
232-8 the court in the best interest of such estate <or ward> shall, be
232-9 deposited or placed in safekeeping as the case may be, in one or
232-10 more of the depositories hereinabove described upon such terms as
232-11 shall be prescribed by the court. The court in which the
232-12 proceedings are pending, upon its own motion, or upon written
232-13 application of the representative or of any other person interested
232-14 in the estate <or ward> may authorize or require additional assets
232-15 of the estate then on hand or as they accrue during the pendency of
232-16 the probate proceedings to be deposited or held in safekeeping as
232-17 provided above. The amount of the bond of the personal
232-18 representative shall be reduced in proportion to the cash so
232-19 deposited, or the value of the securities or other assets placed in
232-20 safekeeping. Such cash so deposited, or securities or other assets
232-21 held in safekeeping, or portions thereof, may be withdrawn from a
232-22 depository only upon order of the court, and the bond of the
232-23 personal representative shall be increased in proportion to the
232-24 amount of cash or the value of securities or other assets so
232-25 authorized to be withdrawn.
232-26 7. Representative May Deposit Cash or Securities of
232-27 His Own in Lieu of Bond. It shall be lawful for the personal
233-1 representative of an estate, in lieu of giving surety or sureties
233-2 on any bond which shall be required of him, or for the purpose of
233-3 reducing the amount of such bond, to deposit out of his own assets
233-4 cash or securities acceptable to the court, with a depository such
233-5 as named above or with any other corporate depository approved by
233-6 the court, if such deposit is otherwise proper, said deposit to be
233-7 equal in amount or value to the amount of the bond required, or the
233-8 bond reduced by the value of assets so deposited.
233-9 8. Rules Applicable to Making and Handling Deposits in
233-10 Lieu of Bond or to Reduce Penal Sum of Bond. (a) A receipt for a
233-11 deposit in lieu of surety or sureties shall be issued by the
233-12 depository, showing the amount of cash or, if securities, the
233-13 amount and description thereof, and agreeing not to disburse or
233-14 deliver the same except upon receipt of a certified copy of an
233-15 order of the court in which the proceedings are pending, and such
233-16 receipt shall be attached to the representative's bond and be
233-17 delivered to and filed by the county clerk after approval by the
233-18 judge.
233-19 (b) The amount of cash or securities on deposit
233-20 may be increased or decreased, by order of the court from time to
233-21 time, as the interest of the estate shall require.
233-22 (c) Deposits in lieu of sureties on bonds,
233-23 whether of cash or securities, may be withdrawn or released only on
233-24 order of a court having jurisdiction.
233-25 (d) Creditors shall have the same rights against
233-26 the representative and such deposits as are provided for recovery
233-27 against sureties on a bond.
234-1 (e) The court may on its own motion, or upon
234-2 written application by the representative or by any other person
234-3 interested in the estate, require that adequate bond be given by
234-4 the representative in lieu of such deposit, or authorize withdrawal
234-5 of the deposit and substitution of a bond with sureties therefor.
234-6 In either case, the representative shall file a sworn statement
234-7 showing the condition of the estate, and unless the same be filed
234-8 within twenty (20) days after being personally served with notice
234-9 of the filing of an application by another, or entry of the court's
234-10 motion, he shall be subject to removal as in other cases. The
234-11 deposit may not be released or withdrawn until the court has been
234-12 satisfied as to the condition of the estate, has determined the
234-13 amount of bond, and has received and approved the bond.
234-14 9. Withdrawal of Deposits when Estate Closed. Upon
234-15 the closing of an estate, any such deposit or portion thereof
234-16 remaining on hand, whether of the assets of the representative, or
234-17 of the assets of the estate, or of the surety, shall be released by
234-18 order of court and paid over to the person or persons entitled
234-19 thereto. No writ of attachment or garnishment shall lie against
234-20 the deposit, except as to claims of creditors of the estate being
234-21 administered, or persons interested therein, including distributees
234-22 and wards, and then only in the event distribution has been ordered
234-23 by the court, and to the extent only of such distribution as shall
234-24 have been ordered.
234-25 10. Who May Act as Sureties. The surety or sureties
234-26 on said bonds may be authorized corporate sureties, or personal
234-27 sureties.
235-1 11. Procedure When Bond Exceeds Fifty Thousand Dollars
235-2 ($50,000). When any such bond shall exceed Fifty Thousand Dollars
235-3 ($50,000) in penal sum, the court may require that such bond be
235-4 signed by two (2) or more authorized corporate sureties, or by one
235-5 such surety and two (2) or more good and sufficient personal
235-6 sureties. The estate shall pay the cost of a bond with corporate
235-7 sureties.
235-8 12. Qualifications of Personal Sureties. If the
235-9 sureties be natural persons, there shall not be less than two (2),
235-10 each of whom shall make affidavit in the manner prescribed in this
235-11 Code, and the judge shall be satisfied that he owns property within
235-12 this State, over and above that exempt by law, sufficient to
235-13 qualify as a surety as required by law. Except as provided by
235-14 law, only one surety is required if the surety is an authorized
235-15 corporate surety; provided, a personal surety, instead of making
235-16 affidavit, or creating a lien on specific real estate when such is
235-17 required, may, in the same manner as a personal representative,
235-18 deposit his own cash or securities, in lieu of pledging real
235-19 property as security, subject, so far as applicable, to the
235-20 provisions covering such deposits when made by personal
235-21 representatives.
235-22 13. Bonds of Temporary Appointees. In case of a
235-23 temporary administrator <or guardian>, the bond shall be in such
235-24 sum as the judge shall direct.
235-25 14. <Only One Bond for Guardian of Person and Estate.
235-26 Where one person is appointed guardian of both the person and
235-27 estate of a ward, only one bond shall be given by the guardian, in
236-1 the same amount that would be required from a guardian of the
236-2 estate only.>
236-3 <15.> Increased or Additional Bonds When Property
236-4 Sold, Rented, Leased for Mineral Development, or Money Borrowed or
236-5 Invested. The provisions in this Section with respect to deposit
236-6 of cash and safekeeping of securities shall cover, so far as they
236-7 may be applicable, the orders to be entered by the court when real
236-8 or personal property of an estate has been authorized to be sold or
236-9 rented, or money borrowed thereon, or when real property, or an
236-10 interest therein, has been authorized to be leased for mineral
236-11 development or subjected to unitization, the general bond having
236-12 been found insufficient<, or when money is borrowed or invested on
236-13 behalf of a ward>.
236-14 SECTION 32. Section 196, Texas Probate Code, is amended to
236-15 read as follows:
236-16 Sec. 196. Form of Bond. The following form, or the same in
236-17 substance, may be used for the bonds of personal representatives:
236-18 "The State of Texas
236-19 "County of ______
236-20 "Know all men by these presents that we, A. B., as principal,
236-21 and E. F., as sureties, are held and firmly bound unto the county
236-22 (or probate) judge of the County of ______, and his successors in
236-23 office, in the sum of ______ Dollars; conditioned that the above
236-24 bound A. B., who has been appointed executor of the last will and
236-25 testament of J. C., deceased (or has been appointed by the said
236-26 judge of ______ County, administrator with the will annexed of the
236-27 estate of J. C., deceased, or has been appointed by the said judge
237-1 of ______ County, administrator of the estate of J. C., deceased,
237-2 or has been appointed by the said judge of ______ County, temporary
237-3 administrator of the estate of J. C., deceased, as the case may
237-4 be<, or has been appointed by the judge of said county as guardian
237-5 or temporary guardian of the estate, or of the person or person and
237-6 estate of ______, stating in each case whether or not such person
237-7 is a minor or a person of unsound mind or an habitual drunkard or a
237-8 person for whom a guardian is necessary to receive funds or money
237-9 from a governmental source>), shall well and truly perform all of
237-10 the duties required of him by law under said appointment."
237-11 SECTION 33. Section 200, Texas Probate Code, is amended to
237-12 read as follows:
237-13 Sec. 200. Bond of Married Person Under Eighteen Years of
237-14 Age. When a person under eighteen years of age who is or has been
237-15 married shall accept and qualify as executor or<,> administrator,
237-16 <or guardian,> any bond required to be executed by him shall be as
237-17 valid and binding for all purposes as if he were of lawful age.
237-18 SECTION 34. Sections 214, 215, 216, and 217, Texas Probate
237-19 Code, are amended to read as follows:
237-20 Sec. 214. Executor <or Guardian> Without Bond Required to
237-21 Give Bond. Where no bond is required of an executor <or guardian>
237-22 appointed by will, any person having a debt, claim, or demand
237-23 against the estate, to the justice of which oath has been made by
237-24 himself, his agent, or attorney, or any other person interested in
237-25 such estate, whether in person or as the representative of another,
237-26 may file a complaint in writing in the court where such will is
237-27 probated, and the court shall thereupon cite such executor <or
238-1 guardian> to appear and show cause why he should not be required to
238-2 give bond.
238-3 Sec. 215. Order Requiring Bond. Upon hearing such
238-4 complaint, if it appears to the court that such executor <or
238-5 guardian> is wasting, mismanaging, or misapplying such estate, and
238-6 that thereby a creditor may probably lose his debt, or that thereby
238-7 some person's interest in the estate may be diminished or lost, the
238-8 court shall enter an order requiring such executor <or guardian> to
238-9 give bond within ten days from the date of such order.
238-10 Sec. 216. Bond in Such Case. Such bond shall be for an
238-11 amount sufficient to protect the estate and its creditors, to be
238-12 approved by, and payable to, the judge, conditioned that said
238-13 executor <or guardian> will well and truly administer such estate,
238-14 and that he will not waste, mismanage, or misapply the same.
238-15 Sec. 217. Failure to Give Bond. Should the executor <or
238-16 guardian> fail to give such bond within ten days after the order
238-17 requiring him to do so, then if the judge does not extend the time,
238-18 he shall, without citation, remove such executor <or guardian> and
238-19 appoint some competent person in his stead who shall administer the
238-20 estate according to the provisions of such will or the law, and
238-21 who, before he enters upon the administration of said estate, shall
238-22 take the oath required of an administrator with the will annexed
238-23 <or of a guardian as the case may be>, and shall give bond in the
238-24 same manner and in the same amount provided in this Code for the
238-25 issuance of original letters of administration <or guardianship>.
238-26 SECTION 35. Sections 220(c), (d), and (g), Texas Probate
238-27 Code, are amended to read as follows:
239-1 (c) When Named Executor <or Guardian> Becomes an Adult. If
239-2 one named in a will as executor <or guardian> is not an adult when
239-3 the will is probated and letters in any capacity have been granted
239-4 to another, such nominated executor <or guardian>, upon proof that
239-5 he has become an adult and is not otherwise disqualified, shall be
239-6 entitled to have such former letters revoked and appropriate
239-7 letters granted to him. And if the will names two or more persons
239-8 as executor, any one or more of whom are minors when such will is
239-9 probated, and letters have been issued to such only as are adults,
239-10 said minor or minors, upon becoming adults, if not otherwise
239-11 disqualified, shall be permitted to qualify and receive letters.
239-12 (d) Upon Return of Sick or Absent Executor <or
239-13 Guardian>. If one named in a will as executor <or guardian> was
239-14 sick or absent from the State when the testator died, or when the
239-15 will was proved, and therefore could not present the will for
239-16 probate within thirty days after the testator's death, or accept
239-17 and qualify as executor <or guardian> within twenty days after the
239-18 probate of the will, he may accept and qualify as executor <or
239-19 guardian> within sixty days after his return or recovery from
239-20 sickness, upon proof to the court that he was absent or ill; and,
239-21 if the letters have been issued to others, they shall be revoked.
239-22 (g) Payment or Tender of Money Due During Vacancy. Money or
239-23 other thing of value falling due to an estate <or ward> while the
239-24 office of the personal representative is vacant may be paid,
239-25 delivered, or tendered to the clerk of the court for credit of the
239-26 estate <or ward>, and the debtor, obligor, or payor shall thereby
239-27 be discharged of the obligation for all purposes to the extent and
240-1 purpose of such payment or tender. If the clerk accepts such
240-2 payment or tender, he shall issue a proper receipt therefor.
240-3 SECTION 36. Section 221(d), Texas Probate Code, is amended
240-4 to read as follows:
240-5 (d) Hearing. At the time set for hearing, unless it has
240-6 been continued by the court, if the court finds that citation has
240-7 been duly issued and served, he shall proceed to examine such
240-8 exhibit and account, and hear all evidence for and against the
240-9 same, and shall, if necessary, restate, and audit and settle the
240-10 same. If the court is satisfied that the matters entrusted to the
240-11 applicant have been handled and accounted for in accordance with
240-12 law, he shall enter an order of approval, and require that the
240-13 estate remaining in the possession of the applicant, if any, be
240-14 delivered to the person or persons entitled by law to receive it.
240-15 <A guardian of the person shall be required to comply with all
240-16 lawful orders of the court concerning his ward.>
240-17 SECTION 37. Sections 222(b) and (c), Texas Probate Code, are
240-18 amended to read as follows:
240-19 (b) With Notice. The court may remove a personal
240-20 representative on its own motion, or on the complaint of any
240-21 interested person, after the personal representative has been cited
240-22 by personal service to answer at a time and place fixed in the
240-23 notice, when:
240-24 (1) Sufficient grounds appear to support belief that
240-25 he has misapplied, embezzled, or removed from the state, or that he
240-26 is about to misapply, embezzle, or remove from the state, all or
240-27 any part of the property committed to his care;
241-1 (2) He fails to return any account which is required
241-2 by law to be made;
241-3 (3) He fails to obey any proper order of the court
241-4 having jurisdiction with respect to the performance of his duties;
241-5 (4) He is proved to have been guilty of gross
241-6 misconduct, or mismanagement in the performance of his duties;
241-7 (5) He becomes an incompetent, or is sentenced to the
241-8 penitentiary, or from any other cause becomes incapable of properly
241-9 performing the duties of his trust;
241-10 (6) As executor or administrator, he fails to make a
241-11 final settlement within three years after the grant of letters,
241-12 unless the time be extended by the court upon a showing of
241-13 sufficient cause supported by oath; or
241-14 (7) As executor or administrator, he fails to timely
241-15 file the notice required by Section 128A of this code<; or>
241-16 <(8) As guardian of the person, he cruelly treats the
241-17 ward, or neglects to educate or maintain the ward as liberally as
241-18 the means of such ward and the condition of his estate permit>.
241-19 (c) Order of Removal. The order of removal shall state the
241-20 cause thereof. It shall require that any letters issued to the one
241-21 removed shall, if he has been personally served with citation, be
241-22 surrendered, and that all such letters be cancelled of record,
241-23 whether delivered or not. It shall further require, as to all the
241-24 estate remaining in the hands of a removed person, delivery thereof
241-25 to the person or persons entitled thereto, or to one who has been
241-26 appointed and has qualified as successor representative<, and as to
241-27 the person of a ward, that control be relinquished as required in
242-1 the order>.
242-2 SECTION 38. Section 226, Texas Probate Code, is amended to
242-3 read as follows:
242-4 Sec. 226. Subsequent Executors <and Guardians> Also Succeed
242-5 to Prior Rights and Duties. Whenever an executor <or guardian>
242-6 shall accept and qualify after letters of administration shall have
242-7 been granted upon the estate, such executor <or guardian> shall, in
242-8 like manner, succeed to the previous administrator, and he shall
242-9 administer the estate in like manner as if his administration were
242-10 a continuation of the former one, subject, however, to any legal
242-11 directions of the testator contained in the will in relation to the
242-12 estate.
242-13 SECTION 39. Section 230, Texas Probate Code, is amended to
242-14 read as follows:
242-15 Sec. 230. Care of Property of Estates. <(a) Estates of
242-16 Decedents.> The executor or administrator shall take care of the
242-17 property of the estate of his testator or intestate as a prudent
242-18 man would take of his own property, and if there be any buildings
242-19 belonging to the estate, he shall keep the same in good repair,
242-20 extraordinary casualties excepted, unless directed not to do so by
242-21 an order of the court.
242-22 <(b) Estates of Wards.>
242-23 <(1) General Powers and Duties. The guardian of the
242-24 estate of a ward is entitled to the possession and management of
242-25 all properties belonging to the ward, to collect all debts,
242-26 rentals, or claims due such ward, to enforce all obligations in his
242-27 favor, and to bring and defend suits by or against him; but, in the
243-1 management of the estate, the guardian shall be governed by the
243-2 provisions of this Code. It is the duty of the guardian of the
243-3 estate to take care of and manage such estate as a prudent man
243-4 would manage his own property. He shall account for all rents,
243-5 profits, and revenues that the estate would have produced by such
243-6 prudent management.>
243-7 <(2) Power to Make Tax-Motivated Gifts. (A) On
243-8 application of the guardian or any interested party, and after
243-9 notice to all interested persons and to such other persons as the
243-10 court may direct, and on a showing that the ward will probably
243-11 remain incompetent during his lifetime, the court may, after
243-12 hearing and by order, authorize the guardian to apply such
243-13 principal or income of the ward's estate as is not required for the
243-14 support of the ward during his lifetime or of his family towards
243-15 the establishment of an estate plan for the purpose of minimizing
243-16 income, estate, inheritance, or other taxes payable out of the
243-17 ward's estate. The court may authorize the guardian to make gifts
243-18 of the ward's personal property or real estate, outright or in
243-19 trust, on behalf of the ward, to or for the benefit of
243-20 (i) organizations to which charitable contributions may be made
243-21 under the Internal Revenue Code and in which it is shown the ward
243-22 would reasonably have an interest, (ii) the ward's heirs at law
243-23 who are identifiable at the time of the order, (iii) devisees
243-24 under the ward's last validly executed will, if there be such a
243-25 will, (iv) and a person serving as guardian of the ward provided
243-26 he is eligible under either category (ii) or (iii) above.>
243-27 <(B) The person making application to the court
244-1 shall outline the proposed estate plan, setting forth all the
244-2 benefits to be derived therefrom. The application shall also
244-3 indicate that the planned disposition is consistent with the
244-4 intentions of the ward insofar as they can be ascertained. If the
244-5 ward's intentions cannot be ascertained, the ward will be presumed
244-6 to favor reduction in the incidence of the various forms of
244-7 taxation and the partial distribution of his estate as herein
244-8 provided.>
244-9 <(C) The court may appoint a guardian ad litem
244-10 for the ward or any interested party at any stage of the
244-11 proceedings, if deemed advisable for the protection of the ward or
244-12 the interested party.>
244-13 <(D) Subsequent modifications of an approved
244-14 plan may be made by similar application to the court.>
244-15 SECTION 40. Section 233A, Texas Probate Code, is amended to
244-16 read as follows:
244-17 Sec. 233A. Suits by Executors OR<,> Administrators<, or
244-18 Guardians>. Suits for the recovery of personal property, debts, or
244-19 damages and suits for title or possession of lands or for any right
244-20 attached to or growing out of the same or for injury or damage done
244-21 thereto may be instituted by executors or<,> administrators<, or
244-22 guardians> appointed in this state; and judgment in such cases
244-23 shall be conclusive, but may be set aside by any person interested
244-24 for fraud or collusion on the part of such executor or
244-25 administrator.
244-26 SECTION 41. Section 238, Texas Probate Code, is amended to
244-27 read as follows:
245-1 Sec. 238. Operation of Farm, Ranch, Factory, or Other
245-2 Business. If the estate owns a farm, ranch, factory, or other
245-3 business, the disposition of which has not been specifically
245-4 directed by will, and if the same be not required to be sold at
245-5 once for the payment of debts or other lawful purposes, the
245-6 representative, upon order of the court, shall carry on the
245-7 operation of such farm, ranch, factory, or other business, or cause
245-8 the same to be done, or rent the same, as shall appear to be for
245-9 the best interest of the estate. In deciding, the court shall
245-10 consider the condition of the estate, and the necessity that may
245-11 exist for future sale of such property or business for the payment
245-12 of debts, claims, or other lawful expenditures, and shall not
245-13 extend the time of renting any of the property beyond what appears
245-14 consistent with the speedy settlement of the estate of a deceased
245-15 person<, or the maintenance and education of a ward> or the
245-16 settlement of his estate.
245-17 SECTION 42. Section 241, Texas Probate Code, is amended to
245-18 read as follows:
245-19 Sec. 241. Compensation of Personal Representatives.
245-20 (a) <Compensation of Executors and Administrators.> Executors,
245-21 administrators, and temporary administrators shall be entitled to
245-22 receive a commission of five per cent (5%) on all sums they may
245-23 actually receive in cash, and the same per cent on all sums they
245-24 may actually pay out in cash, in the administration of the estate
245-25 on a finding by the court that the executor or administrator has
245-26 taken care of and managed the estate in compliance with the
245-27 standards of this code; provided, no commission shall be allowed
246-1 for receiving funds belonging to the testator or intestate which
246-2 were on hand or were held for the testator or intestate at the time
246-3 of his death in a financial institution or a brokerage firm,
246-4 including cash or a cash equivalent held in a checking account,
246-5 savings account, certificate of deposit, or money market account;
246-6 nor for collecting the proceeds of any life insurance policy; nor
246-7 for paying out cash to the heirs or legatees as such; provided,
246-8 further, however, that in no event shall the executor or
246-9 administrator be entitled in the aggregate to more than five per
246-10 cent (5%) of the gross fair market value of the estate subject to
246-11 administration. If the executor or administrator manages a farm,
246-12 ranch, factory, or other business of the estate, or if the
246-13 compensation as calculated above is unreasonably low, the court may
246-14 allow him reasonable compensation for his services, including
246-15 unusual effort to collect funds or life insurance. For this
246-16 purpose, the county court shall have jurisdiction to receive,
246-17 consider, and act on applications from independent executors. The
246-18 court may, on application of an interested person or on its own
246-19 motion, deny a commission allowed by this subsection in whole or in
246-20 part if:
246-21 (1) the court finds that the executor or administrator
246-22 has not taken care of and managed estate property prudently; or
246-23 (2) the executor or administrator has been removed
246-24 under Section 149C or 222 of this code.
246-25 (b) <Compensation of Guardians. A guardian of the person
246-26 alone is entitled to no compensation. The guardian or the
246-27 temporary guardian of the estate, or of the person and estate,
247-1 shall not be entitled to, or receive, any fee or commission on the
247-2 estate of the ward when it is first delivered to him; but shall be
247-3 entitled to a fee of five per cent (5%) on the gross income of the
247-4 ward's estate and five per cent (5%) on all money paid out on a
247-5 finding by the court that the guardian has taken care of and
247-6 managed the estate in compliance with the standards of this code.
247-7 The term "money paid out" shall not be construed to include any
247-8 money loaned or invested or paid over on the settlement of the
247-9 guardianship. If the guardian manages a farm, ranch, factory, or
247-10 other business of his ward, or if the compensation as calculated
247-11 above is unreasonably low, the court may allow him reasonable
247-12 compensation for his services. The court may, on application of an
247-13 interested person or on its own motion, deny a fee allowed by this
247-14 subsection in whole or in part if:>
247-15 <(1) the court finds that the guardian has not taken
247-16 care of and managed estate property prudently; or>
247-17 <(2) the guardian has been removed under Section 222
247-18 of this code.>
247-19 <(c)> Definition. In this section, "financial institution"
247-20 means an organization authorized to do business under state or
247-21 federal laws relating to financial institutions, including banks
247-22 and trust companies, savings banks, building and loan associations,
247-23 savings and loan companies or associations, and credit unions.
247-24 SECTION 43. The heading of Chapter VIII, Texas Probate Code,
247-25 is amended to read as follows:
247-26 CHAPTER VIII. PROCEEDINGS DURING ADMINISTRATION
247-27 <AND GUARDIANSHIP>
248-1 SECTION 44. Section 248, Texas Probate Code, is amended to
248-2 read as follows:
248-3 Sec. 248. Appointment of Appraisers. At any time after the
248-4 grant of letters testamentary or of administration <or of
248-5 guardianship>, upon the application of any interested person or if
248-6 the court shall deem necessary, the court shall appoint not less
248-7 than one nor more than three disinterested persons, citizens of the
248-8 county in which letters were granted, to appraise the property of
248-9 the estate. In such event and when part of the estate is situated
248-10 in a county other than the county in which letters were granted, if
248-11 the court shall deem necessary it may appoint not less than one nor
248-12 more than three disinterested persons, citizens of the county where
248-13 such part of the estate is situated, to appraise the property of
248-14 the estate situated therein.
248-15 SECTION 45. Section 250, Texas Probate Code, is amended to
248-16 read as follows:
248-17 Sec. 250. Inventory and Appraisement. Within ninety days
248-18 after his qualification, unless a longer time shall be granted by
248-19 the court, the representative shall file with the clerk of court a
248-20 verified, full and detailed inventory, in one written instrument,
248-21 of all the property of such estate which has come to his possession
248-22 or knowledge, which inventory shall include:
248-23 (a) all real property of the estate situated in the
248-24 State of Texas;
248-25 (b) all personal property of the estate wherever
248-26 situated. The representative shall set out in the inventory his
248-27 appraisement of the fair market value of each item thereof as of
249-1 the date of death in the case of grant of letters testamentary or
249-2 of administration <or as of the date of grant of letters of
249-3 guardianship>, as the case may be; provided that if the court shall
249-4 appoint an appraiser or appraisers of the estate, the
249-5 representative shall determine the fair market value of each item
249-6 of the inventory with the assistance of such appraiser or
249-7 appraisers and shall set out in the inventory such appraisement.
249-8 The inventory shall specify what portion of the property, if any,
249-9 is separate property and what portion, if any, is community
249-10 property. If any property is owned in common with others, the
249-11 interest owned by the estate shall be shown, together with the
249-12 names and relationship, if known, of co-owners. Such inventory,
249-13 when approved by the court and duly filed with the clerk of court,
249-14 shall constitute for all purposes the inventory and appraisement of
249-15 the estate referred to in this Code. The court for good cause
249-16 shown may require the filing of the inventory and appraisement at a
249-17 time prior to ninety days after the qualification of the
249-18 representative.
249-19 SECTION 46. Sections 295(a) and (b), Texas Probate Code, are
249-20 amended to read as follows:
249-21 (a) When notice required for lien claimants. Within four
249-22 months after receiving letters, the representative of an estate
249-23 shall give notice of the issuance of such letters to each and every
249-24 person having a claim for money against the estate of a decedent<,
249-25 or ward, as the case may be>, provided:
249-26 (1) That such claim is secured by a deed of trust,
249-27 mortgage, vendor's, mechanic's or other contractor's lien upon real
250-1 estate belonging to such estate; and
250-2 (2) That the instrument creating, extending, or
250-3 transferring such lien was duly recorded prior to the death of a
250-4 testator or intestate in the county in which the real estate
250-5 covered by such lien is situated, or prior to the time at which
250-6 title vested in an heir or devisee.
250-7 (b) When notice required for general claimants. Within four
250-8 months after receiving letters, the representative of an estate
250-9 shall give notice of the issuance of the letters to each person
250-10 having an outstanding claim for money against the estate of a
250-11 decedent<, or ward, as applicable,> if the representative has
250-12 actual knowledge of the claim.
250-13 SECTION 47. Section 298, Texas Probate Code, is amended to
250-14 read as follows:
250-15 Sec. 298. Claims Against Estates of Decedents <and Wards>.
250-16 (a) Claims Against Decedent's Estate Postponed if not Presented in
250-17 Six Months. All claims for money against a testator or intestate
250-18 shall be presented to the executor or administrator within six
250-19 months after the original grant of letters testamentary or of
250-20 administration; otherwise the payment thereof shall be postponed
250-21 until the claims which have been presented within six months and
250-22 allowed by the executor or administrator and approved by the court
250-23 have been first entirely paid; provided, however, that the failure
250-24 of the holder of a secured claim to present his claim within said
250-25 six month period shall not cause his claim to be postponed, but it
250-26 shall be treated as a claim to be paid in accordance with
250-27 subsequent provisions of this Code.
251-1 (b) <Time for Presentation of Claims to Guardians. Claims
251-2 may be presented to the guardian at any time when the estate is not
251-3 closed and when suit on such claims has not been barred by the
251-4 general statutes of limitation.>
251-5 <(c)> Claims Barred by Limitation Not to Be Allowed or
251-6 Approved. No claims against a decedent <or ward>, or against the
251-7 estate of the decedent <either>, on which a suit is barred by a
251-8 general statute of limitation applicable thereto shall be allowed
251-9 by a personal representative. If allowed by the representative and
251-10 the court is satisfied that limitation has run, the claim shall be
251-11 disapproved.
251-12 SECTION 48. Section 301, Texas Probate Code, is amended to
251-13 read as follows:
251-14 Sec. 301. Claims Must Be Authenticated. No <Except as
251-15 hereinafter provided with respect to the payment of unauthenticated
251-16 claims by guardians, no> personal representative of a decedent's
251-17 estate <or of the estate of a ward> shall allow, and the court
251-18 shall not approve, a claim for money against such estate, unless
251-19 such claim be supported by an affidavit that the claim is just and
251-20 that all legal offsets, payments, and credits known to the affiant
251-21 have been allowed. If the claim is not founded on a written
251-22 instrument or account, the affidavit shall also state the facts
251-23 upon which the claim is founded. A photostatic copy of any exhibit
251-24 or voucher necessary to prove a claim may be offered with and
251-25 attached to the claim in lieu of the original.
251-26 SECTION 49. Section 304, Texas Probate Code, is amended to
251-27 read as follows:
252-1 Sec. 304. Authentication of Claim by Others Than Individual
252-2 Owners. The cashier, treasurer, or managing official of a
252-3 corporation shall make the affidavit required to authenticate a
252-4 claim of such corporation. When an affidavit is made by an officer
252-5 of a corporation, or by an executor, administrator, <guardian,>
252-6 trustee, assignee, agent, or attorney, it shall be sufficient to
252-7 state in such affidavit that the person making it has made diligent
252-8 inquiry and examination, and that he believes that the claim is
252-9 just and that all legal offsets, payments, and credits made known
252-10 to the affiant have been allowed.
252-11 SECTION 50. Section 306(d), Texas Probate Code, is amended
252-12 to read as follows:
252-13 (d) Payment of Maturities on Secured Claims. If property
252-14 securing a claim allowed, approved, and fixed under Paragraph (2)
252-15 of Subsection (a) hereof is not sold or distributed within twelve
252-16 months from the date letters testamentary or of administration <or
252-17 guardianship> are granted, the representative of the estate shall
252-18 promptly pay all maturities which have accrued on the debt
252-19 according to the terms thereof, and shall perform all the terms of
252-20 any contract securing same. If the representative defaults in such
252-21 payment or performance, on motion of the claimholder, the court
252-22 shall require the sale of said property subject to the unmatured
252-23 part of such debt and apply the proceeds of the sale to the
252-24 liquidation of the maturities, or, at the option of the
252-25 claimholder, a motion may be made in a like manner to require the
252-26 sale of said property free of such lien and to apply the proceeds
252-27 to the payment of the whole debt.
253-1 SECTION 51. Section 311, Texas Probate Code, is amended to
253-2 read as follows:
253-3 Sec. 311. When Claims Entered in Docket. <(a) Claims
253-4 Against Estates of Decedents.> If a claim against the estate of a
253-5 decedent has been presented within six months after the issuance of
253-6 original testamentary letters or of administration, and all or part
253-7 of such claim is allowed by the executor or administrator, the
253-8 claim shall forthwith be filed with the county clerk of the proper
253-9 county, who shall enter the same in its proper place upon the claim
253-10 docket. If such claim is not so presented within such time, the
253-11 payment thereof, should it be approved in whole or in part, shall
253-12 be postponed until all other claims which have been presented,
253-13 allowed, and approved within the time prescribed have been first
253-14 entirely paid.
253-15 <(b) Claims Against Estates of Wards. After a claim against
253-16 a ward's estate has been presented to and allowed by the guardian,
253-17 either in whole or in part, the claim shall forthwith be filed with
253-18 the county clerk of the proper county, who shall enter it on the
253-19 claim docket.>
253-20 SECTION 52. Sections 312(a) and (e), Texas Probate Code, are
253-21 amended to read as follows:
253-22 (a) Contest of Claims. Any person interested in an estate
253-23 <or ward> may, at any time before the court has acted upon a claim,
253-24 appear and object in writing to the approval of the same, or any
253-25 part thereof, and in such case the parties shall be entitled to
253-26 process for witnesses, and the court shall hear proof and render
253-27 judgment as in ordinary suits.
254-1 (e) Appeal. When a claimant or any person interested in an
254-2 estate <or ward> shall be dissatisfied with the action of the court
254-3 upon a claim, he may appeal therefrom to the courts of <(civil)>
254-4 appeals, as from other judgments of the county court in probate
254-5 matters.
254-6 SECTION 53. Section 314, Texas Probate Code, is amended to
254-7 read as follows:
254-8 Sec. 314. Presentment of Claims a Prerequisite for Judgment.
254-9 No judgment shall be rendered in favor of a claimant upon any claim
254-10 for money which has not been legally presented to the
254-11 representative of an estate <or ward>, and rejected by him or by
254-12 the court, in whole or in part.
254-13 SECTION 54. Section 317, Texas Probate Code, is amended to
254-14 read as follows:
254-15 Sec. 317. Claims by Personal Representatives. (a) By
254-16 Executors or Administrators. The foregoing provisions of this Code
254-17 relative to the presentation of claims against an estate shall not
254-18 be construed to apply to any claim of the executor or administrator
254-19 against his testator or intestate; but an executor or administrator
254-20 holding such claim shall file the same in the court granting his
254-21 letters, verified by affidavit as required in other cases, within
254-22 six months after he has qualified, or such claim shall be barred.
254-23 (b) <By Guardians. A claim which the guardian held against
254-24 the ward or his estate at the time of his appointment, or which has
254-25 since accrued, shall be verified by affidavit as required in other
254-26 cases, and presented to the clerk of the court in which the
254-27 guardianship is pending, who shall enter it upon the claim docket,
255-1 after which it shall take the same course as other claims.>
255-2 <(c)> Action on Such Claims. When a claim by an executor
255-3 or<,> administrator<, or guardian> has been filed with the court
255-4 within the required time, such claim shall be entered upon the
255-5 claim docket and acted upon by the court in the same manner as in
255-6 other cases, and, when the claim has been acted upon by the court,
255-7 an appeal from the judgment of the court may be taken as in other
255-8 cases.
255-9 (c) <(d)> Provisions Not Applicable to Certain Claims. The
255-10 foregoing provisions relative to the presentment of claims shall
255-11 not be so construed as to apply to the claim of any heir, devisee,
255-12 or legatee who claims in such capacity, or to any claim that
255-13 accrues against the estate after the granting of letters for which
255-14 the representative of the estate has contracted.
255-15 SECTION 55. Section 319, Texas Probate Code, is amended to
255-16 read as follows:
255-17 Sec. 319. Claims Not to Be Paid Unless Approved. No <Except
255-18 as provided for payment at his own risk by a guardian of an
255-19 unauthenticated claim, no> claim for money against the estate of a
255-20 decedent <or ward>, or any part thereof, shall be paid until it has
255-21 been approved by the court or established by the judgment of a
255-22 court of competent jurisdiction.
255-23 SECTION 56. Section 320, Texas Probate Code, is amended to
255-24 read as follows:
255-25 Sec. 320. Order of Payment of Claims. (a) <Estates of
255-26 Decedents.> Executors and administrators, when they have funds in
255-27 their hands belonging to the estate, shall pay in the following
256-1 order:
256-2 (1) Funeral expenses and expenses of last sickness, in
256-3 an amount not to exceed Five Thousand Dollars, if the claims
256-4 therefor have been presented within sixty days from the original
256-5 grant of letters testamentary or administration, but if not
256-6 presented within such time, their payment shall be postponed until
256-7 the allowances made to the widow and children, or to either, are
256-8 paid.
256-9 (2) Allowances made to the widow and children, or to
256-10 either.
256-11 (3) Expenses of administration and the expenses
256-12 incurred in the preservation, safekeeping, and management of the
256-13 estate.
256-14 (4) Other claims against the estate in the order of
256-15 their classification.
256-16 (b) <Estates of Wards. The guardian shall pay all claims
256-17 against the estate of his ward that have been allowed and approved,
256-18 or established by suit, as soon as practicable, in the following
256-19 order:>
256-20 <(1) expenses for the care, maintenance and education
256-21 of the ward or his dependents;>
256-22 <(2) funeral expenses and expenses of last sickness,
256-23 if the guardianship is kept open after the death of the ward as
256-24 provided by Section 404A of this Code, except that any claim
256-25 against the estate of a ward that has been allowed and approved or
256-26 established by suit prior to the death of the ward shall be paid
256-27 prior to the funeral expenses and expenses of last sickness;>
257-1 <(3) expenses of administration; and>
257-2 <(4) other claims against the estate.>
257-3 <(c)> A claimant whose claim has not been paid may petition
257-4 the court for determination of his claim at any time before it is
257-5 barred by the applicable statute of limitations and upon due proof
257-6 procure an order for its allowance and payment from the estate.
257-7 SECTION 57. Section 321, Texas Probate Code, is amended to
257-8 read as follows:
257-9 Sec. 321. Deficiency of Assets. When there is a deficiency
257-10 of assets to pay all claims of the same class, the claims in such
257-11 class shall be paid pro rata, as directed by the court, and in the
257-12 order directed. No executor or<,> administrator<, or guardian>
257-13 shall be allowed to pay any claims, whether the estate is solvent
257-14 or insolvent, except with the pro rata amount of the funds of the
257-15 estate that have come to hand.
257-16 SECTION 58. Section 324, Texas Probate Code, is amended to
257-17 read as follows:
257-18 Sec. 324. Representatives Not to Purchase Claims. It shall
257-19 be unlawful, and cause for removal, for an executor or<,>
257-20 administrator, <or guardian,> whether acting under appointment by
257-21 will or under orders of the court, to purchase for his own use or
257-22 for any purposes whatsoever, any claim against the estate he
257-23 represents. Upon written complaint by any person interested in the
257-24 estate, and satisfactory proof of violation of this provision,
257-25 after citation and hearing, the court shall enter its order
257-26 cancelling the claim, and no part thereof shall be paid out of the
257-27 estate; and the judge may, in his discretion, remove such
258-1 representative.
258-2 SECTION 59. Sections 329(a) and (c), Texas Probate Code, are
258-3 amended to read as follows:
258-4 (a) Circumstances Under Which Money May Be Borrowed. Any
258-5 real or personal property of an estate may be mortgaged or pledged
258-6 by deed of trust or otherwise as security for an indebtedness,
258-7 under order of the court, when necessary for any of the following
258-8 purposes:
258-9 (1) For the payment of any ad valorem, income, gift,
258-10 estate, inheritance, or transfer taxes upon the transfer of an
258-11 estate or due from a decedent <or ward> or his estate, regardless
258-12 of whether such taxes are assessed by a state, or any of its
258-13 political subdivisions, or by the federal government or by a
258-14 foreign country; or
258-15 (2) For payment of expenses of administration,
258-16 including sums necessary for operation of a business, farm, or
258-17 ranch owned by the estate; or
258-18 (3) For payment of claims allowed and approved, or
258-19 established by suit, against the estate; or
258-20 (4) To renew and extend a valid, existing lien<; or>
258-21 <(5) In the case of guardians of estates, if the real
258-22 estate of the ward is not revenue producing but could be made
258-23 revenue producing by certain improvements and repairs, or if the
258-24 revenue therefrom could be increased by making such improvements or
258-25 repairs thereon, to make such improvements or repairs; or>
258-26 <(6) In the case of guardians of estates, the probate
258-27 court in its discretion may authorize the borrowing of money if the
259-1 court finds it to be in the best interest of the ward or may
259-2 authorize the borrowing of money for the purchase of a residence
259-3 for the ward and any dependents of the ward>.
259-4 (c) Order Authorizing Such Borrowing, or Extension of
259-5 Lien. The court, if satisfied by the evidence adduced at the
259-6 hearing upon said application that it is to the interest of the
259-7 estate to borrow money, or to extend and renew an existing lien,
259-8 shall issue its order to that effect, setting out the terms and
259-9 conditions of the authority granted; provided, however<: (1) that
259-10 as to the estate of a decedent>, the loan or renewal shall not be
259-11 for a term longer than three years from the granting of original
259-12 letters to the representative of such estate, but the court may
259-13 authorize an extension of such lien for not more than one
259-14 additional year without further citation or notice<; and (2) that
259-15 as to the estate of a ward, the term of the loan or renewal shall
259-16 be for such length of time as the court shall determine to be for
259-17 the best interest of such estate. If a new lien is created upon
259-18 property of an estate, the court may require that the
259-19 representative's general bond be increased, or an additional bond
259-20 given, for the protection of the estate and its creditors, as for
259-21 the sale of real property belonging to the estate>.
259-22 SECTION 60. Section 339, Texas Probate Code, is amended to
259-23 read as follows:
259-24 Sec. 339. Sales of Personal Property to Be Reported; Decree
259-25 Vests Title. All sales of personal property shall be reported to
259-26 the court, and the laws regulating sales of real estate as to
259-27 confirmation or disapproval of sales shall apply, but no conveyance
260-1 shall be necessary. The decree confirming the sale of personal
260-2 property shall vest the right and title of the estate of the
260-3 intestate <or ward> in the purchaser who has complied with the
260-4 terms of the sale, and shall be prima facie evidence that all
260-5 requirements of the law in making the sale have been met. The
260-6 representative of an estate may, upon request, issue a bill of sale
260-7 without warranty to the purchaser as evidence of title, the expense
260-8 thereof to be borne by the purchaser.
260-9 SECTION 61. Section 341, Texas Probate Code, is amended to
260-10 read as follows:
260-11 Sec. 341. Application for Sale of Real Estate.
260-12 <(a)> Application may be made to the court for an order to sell
260-13 property of the estate when it appears necessary or advisable in
260-14 order to:
260-15 (1) Pay expenses of administration, funeral expenses
260-16 and expenses of last sickness of decedents, and allowances and
260-17 claims against the estates of decedents <and wards>.
260-18 (2) <Make up the deficiency when the income of a
260-19 ward's estate, and the personal property thereof, and the proceeds
260-20 of previous sales, are insufficient for the education and
260-21 maintenance of the ward, or to pay debts against the estate.>
260-22 <(3) Dispose of property of the estate of a ward which
260-23 consists in whole or in part of an undivided interest in real
260-24 estate, when it is deemed to the best interest of the estate to
260-25 sell such interest.>
260-26 <(4) Dispose of real estate of a ward, any part of
260-27 which is nonproductive or does not produce sufficient revenue to
261-1 make a fair return upon the value of such real estate, when the
261-2 improvement of same with a view to making it productive is not
261-3 deemed advantageous or advisable, and it appears that the sale of
261-4 such real estate and the investment of the money derived therefrom
261-5 would be to the best interest of the estate.>
261-6 <(5) Conserve the estate of a ward by selling mineral
261-7 interest and/or royalties on minerals in place owned by a ward.>
261-8 <(6)> Dispose of any interest in real property of the
261-9 estate of a decedent, when it is deemed to the best interest of the
261-10 estate to sell such interest.
261-11 SECTION 62. Section 351, Texas Probate Code, is amended to
261-12 read as follows:
261-13 Sec. 351. Sales of Easements and Right of Ways. It shall be
261-14 lawful to sell and convey easements and rights of ways on, under,
261-15 and over the lands of an estate being administered under orders of
261-16 a court, regardless of whether the proceeds of such a sale are
261-17 required for payment of charges or claims against the estate, or
261-18 for other lawful purposes. The procedure for such sales shall be
261-19 the same as now or hereafter provided by law for sales of real
261-20 property of estates of decedents <or wards> at private sale.
261-21 SECTION 63. Sections 352(c) and (d), Texas Probate Code, are
261-22 amended to read as follows:
261-23 (c) A personal representative of a decedent <or of a ward
261-24 who has been adjudged incompetent> may purchase property from the
261-25 estate of the decedent <or ward> in compliance with the terms of a
261-26 written executory contract signed by the decedent <or by the ward
261-27 before the ward became incompetent>, including a contract for deed,
262-1 earnest money contract, buy/sell agreement, or stock purchase or
262-2 redemption agreement.
262-3 (d) After issuing the notice required by this subsection, a
262-4 personal representative of an estate, including an independent
262-5 administrator, may purchase property from the estate on the court's
262-6 determination that the sale is in the best interest of the estate.
262-7 The personal representative shall give notice by certified mail,
262-8 return receipt requested, unless the court requires another form of
262-9 notice, to each distributee of a deceased person's estate and to
262-10 each creditor whose claim remains unsettled after presenting a
262-11 claim within six months of the original grant of letters. <In the
262-12 case of an application filed by the guardian of the estate of a
262-13 ward, the court shall appoint an attorney ad litem to represent the
262-14 ward with respect to the sale.> The court may require additional
262-15 notice or it may allow for the waiver of the notice required for a
262-16 sale made under this subsection.
262-17 SECTION 64. Section 367(b), Texas Probate Code, is amended
262-18 to read as follows:
262-19 (b) Mineral Leases, With or Without Pooling or
262-20 Unitization. Personal representatives of the estates of
262-21 decedents<, minors, and incompetents>, appointed and qualified
262-22 under the laws of this State, and acting solely under orders of
262-23 court, may be authorized by the court in which the probate
262-24 proceedings on such estates are pending to make, execute, and
262-25 deliver leases, with or without unitization clauses or pooling
262-26 provisions, providing for the exploration for, and development and
262-27 production of, oil, other liquid hydrocarbons, gas (including all
263-1 liquid hydrocarbons in the gaseous phase), metals, and other solid
263-2 minerals, and other minerals, or any of such minerals in place,
263-3 belonging to such estates.
263-4 SECTION 65. Section 372, Texas Probate Code, is amended to
263-5 read as follows:
263-6 Sec. 372. Validation of Certain Leases and Pooling or
263-7 Unitization Agreements Based on Previous Statutes. All presently
263-8 existing leases on the oil, gas, or other minerals, or one or more
263-9 of them, belonging to the estates of decedents<, minors, persons of
263-10 unsound mind, or habitual drunkards>, and all agreements with
263-11 respect to pooling, or unitization thereof, or one or more of them,
263-12 or any interest therein, with like properties of others<, including
263-13 agreements contemplated or authorized to be made under the terms of
263-14 Section 3, Article 6008-b, Vernon's Texas Revised Civil Statutes of
263-15 1925, as amended,> having been authorized by the court having
263-16 venue, and executed and delivered by the executors, administrators,
263-17 <guardians,> or other fiduciaries of their estates in substantial
263-18 conformity to the rules set forth in statutes heretofore existing,
263-19 providing for only seven days notice in some instances, and also
263-20 for a brief order designating a time and place for hearing, are
263-21 hereby validated in so far as said period of notice is concerned,
263-22 and in so far as the absence of any order setting a time and place
263-23 for hearing is concerned; provided, this shall not apply to any
263-24 lease or pooling or unitization agreement involved in any suit
263-25 pending on the effective date of this Code wherein either the
263-26 length of time of said notice or the absence of such order is in
263-27 issue.
264-1 SECTION 66. Section 399, Texas Probate Code, is amended to
264-2 read as follows:
264-3 Sec. 399. Annual Accounts Required. (a) Estates of
264-4 Decedents <and Wards> Being Administered Under Order of Court. The
264-5 personal representative of the estate of a decedent <or ward> being
264-6 administered under order of court shall, upon the expiration of
264-7 twelve (12) months from the date of qualification and receipt of
264-8 letters, return to the court an exhibit in writing under oath
264-9 setting forth a list of all claims against the estate that were
264-10 presented to him within the period covered by the account,
264-11 specifying which have been allowed by him, which have been paid,
264-12 which have been rejected and the date when rejected, which have
264-13 been sued upon, and the condition of the suit, and show:
264-14 (1) All property that has come to his knowledge or
264-15 into his possession not previously listed or inventoried as
264-16 property of the estate <or ward, as the case may be>.
264-17 (2) Any changes in the property of the estate <or
264-18 ward> which have not been previously reported.
264-19 (3) A complete account of receipts and disbursements
264-20 for the period covered by the account, and the source and nature
264-21 thereof, with receipts of principal and income to be shown
264-22 separately.
264-23 (4) A complete, accurate and detailed description of
264-24 the property being administered, the condition of the property and
264-25 the use being made thereof, and, if rented, the terms upon and the
264-26 price for which rented.
264-27 (5) The cash balance on hand and the name and location
265-1 of the depository wherein such balance is kept; also, any other
265-2 sums of cash in savings accounts or other form, deposited subject
265-3 to court order, and the name and location of the depository
265-4 thereof.
265-5 (6) A detailed description of personal property of the
265-6 estate, which shall, with respect to bonds, notes, and other
265-7 securities, include the names of obligor and obligee, or if payable
265-8 to bearer, so state; the date of issue and maturity; the rate of
265-9 interest; serial or other identifying numbers; in what manner the
265-10 property is secured; and other data necessary to identify the same
265-11 fully, and how and where held for safekeeping.
265-12 (b) Annual Reports Continue Until Estate Closed. Each
265-13 personal representative of the estate of a decedent <or ward> shall
265-14 continue to file annual accounts conforming to the essential
265-15 requirements of those in Subsection (a) hereof as to changes in the
265-16 assets of the estate after rendition of the former account so that
265-17 the true condition of the estate, with respect to money,
265-18 securities, and other property, can be ascertained by the court or
265-19 by any interested person, by adding to the balances forward the
265-20 receipts, and then subtracting the disbursements. The description
265-21 of property sufficiently described in an inventory or previous
265-22 account may be by reference thereto.
265-23 (c) <Guardians of the Person. The guardian of the person,
265-24 when there is a separate guardian of the estate, shall at the
265-25 expiration of twelve (12) months from the date of his qualification
265-26 and receipt of letters, and annually thereafter, return to the
265-27 court his sworn account showing each item of receipts and
266-1 disbursements for the support and maintenance of the ward, his
266-2 education when necessary, and support and maintenance of the ward's
266-3 dependents, when authorized by order of court. All who are
266-4 guardians of the person shall include in their reports facts
266-5 concerning each ward's physical welfare, his well-being, and his
266-6 progress in education, if the latter be pertinent. Unless the
266-7 judge is satisfied that the facts stated are true, he shall issue
266-8 such orders as are necessary for the best interest of the ward.>
266-9 <(d)> Supporting Vouchers, etc., Attached to
266-10 Accounts. Annexed to all annual accounts of representatives of
266-11 estates <and wards, and, so far as applicable, accounts of
266-12 guardians of the persons of wards and guardians of those wards
266-13 entitled to receive governmental funds, required by this Section,>
266-14 shall be:
266-15 (1) Proper vouchers for each item of credit claimed in
266-16 the account, or, in the absence of such voucher, the item must be
266-17 supported by evidence satisfactory to the court. Original vouchers
266-18 may, upon application, be returned to the representative after
266-19 approval of his account.
266-20 (2) An official letter from the bank or other
266-21 depository in which the money on hand of the estate <or ward> is
266-22 deposited, showing the amounts in general or special deposits.
266-23 (3) Proof of the existence and possession of
266-24 securities owned by the estate, or shown by the accounting, as well
266-25 as other assets held by a depository subject to orders of the
266-26 court, the proof to be by one of the following means:
266-27 a. By an official letter from the bank or other
267-1 depository wherein said securities or other assets are held for
267-2 safekeeping; provided, that if such depository is the
267-3 representative, the official letter shall be signed by a
267-4 representative of such depository other than the one verifying the
267-5 account; or
267-6 b. By a certificate of an authorized
267-7 representative of the corporation which is surety on the
267-8 representative's bonds; or
267-9 c. By a certificate of the clerk or a deputy
267-10 clerk of a court of record in this State; or
267-11 d. By an affidavit of any other reputable person
267-12 designated by the court upon request of the representative or other
267-13 interested party.
267-14 Such certificate or affidavit shall be to the effect that the
267-15 affiant has examined the assets exhibited to him by the
267-16 representative as assets of the estate in which the accounting is
267-17 made, and shall describe the assets by reference to the account or
267-18 otherwise sufficiently to identify those so exhibited, and shall
267-19 state the time when and the place where exhibited. In lieu of
267-20 using a certificate or an affidavit, the representative may exhibit
267-21 the securities to the judge of the court who shall endorse on the
267-22 account, or include in his order with respect thereto, a statement
267-23 that the securities shown therein as on hand were in fact exhibited
267-24 to him, and that those so exhibited were the same as those shown in
267-25 the account, or note any variance. If the securities are exhibited
267-26 at any place other than where deposited for safekeeping, it shall
267-27 be at the expense and risk of the representative. The court may
268-1 require additional evidence as to the existence and custody of such
268-2 securities and other personal property as in his discretion he
268-3 shall deem proper; and may require the representative to exhibit
268-4 them to the court, or any person designated by him, at any time at
268-5 the place where held for safekeeping.
268-6 (d) <(e)> Verification of Account. The representative
268-7 filing the account shall attach thereto his affidavit that it
268-8 contains a correct and complete statement of the matters to which
268-9 it relates.
268-10 <(f) Annual Accounts May be Waived, When. In cases in which
268-11 the income of a ward's estate from real property becomes
268-12 negligible, and the estate owns no personal property, the estate
268-13 may be closed, as hereinafter provided. If the estate owns
268-14 personal property which produces negligible or fixed income, the
268-15 court shall have the power to waive the filing of annual accounts,
268-16 and the court may permit the guardian to receive all income and
268-17 apply it to the support, maintenance, and education of the ward,
268-18 and account to the court for income and corpus of the estate when
268-19 the same must be closed.>
268-20 SECTION 67. Section 400, Texas Probate Code, is amended to
268-21 read as follows:
268-22 Sec. 400. Penalty for Failure to File Annual Account.
268-23 Should any personal representative of an estate<, or guardian of
268-24 the person of a ward,> fail to return any annual account required
268-25 by preceding sections of this Code, any person interested in said
268-26 estate <or ward> may, upon written complaint, or the court upon its
268-27 own motion may, cause the personal representative to be cited to
269-1 return such account, and show cause for such failure. If he fails
269-2 to return said account after being so cited, or fails to show good
269-3 cause for his failure so to do, the court, upon hearing, may revoke
269-4 the letters of such representative, and may fine him in a sum not
269-5 to exceed Five Hundred Dollars ($500). He and his sureties shall
269-6 be liable for any fine imposed, and for all damages and costs
269-7 sustained by reason of such failure, which may be recovered in any
269-8 court of competent jurisdiction.
269-9 SECTION 68. Section 404, Texas Probate Code, is amended to
269-10 read as follows:
269-11 Sec. 404. Closing Administration of Estates of Decedents
269-12 <and Guardianship of Wards or Their Estates>.
269-13 <(a)> Administration of the estates of decedents <and guardianship
269-14 of the persons and estates of wards> shall be settled and closed<:>
269-15 <(1)> when all the debts known to exist against the
269-16 estate of a deceased person have been paid, or when they have been
269-17 paid so far as the assets in the hands of an administrator or
269-18 executor of such estate will permit, and when there is no further
269-19 need for administration<;>
269-20 <(2) when a minor ward dies, or becomes an adult by
269-21 becoming eighteen years of age, or by removal of disabilities of
269-22 minority according to the law of this state, or by marriage;>
269-23 <(3) when an incompetent ward dies, or is decreed as
269-24 provided by law to have been restored to sound mind or sober
269-25 habits, or, being married, when his or her spouse has qualified as
269-26 survivor in community;>
269-27 <(4) when a ward entitled to funds from a governmental
270-1 source dies, or when the court finds that the necessity for the
270-2 guardianship of that person has ended;>
270-3 <(5) when the estate of a ward becomes exhausted; or>
270-4 <(6) when the foreseeable income accruing to a ward or
270-5 to his estate is so negligible that maintaining the guardianship in
270-6 force would be burdensome.>
270-7 <(b) In a case arising under Subsection (a)(6) of this
270-8 section, the court may authorize the income to be paid to a parent,
270-9 or some other person who has acted as guardian, to assist as far as
270-10 possible in the maintenance of the ward, and without liability to
270-11 account to the court for the income.>
270-12 <(c) When the estate of a minor ward consists only of cash
270-13 or cash equivalents in an amount of not more than $25,000, the
270-14 guardianship of the estate may be terminated and the assets paid to
270-15 the county clerk of the county in which the guardianship proceeding
270-16 is pending, and the clerk shall manage the funds as provided by
270-17 Section 144(a) of this code>.
270-18 SECTION 69. Section 405, Texas Probate Code, is amended to
270-19 read as follows:
270-20 Sec. 405. Account for Final Settlement of Estates of
270-21 Decedents <and Persons and Estates of Wards>. When administration
270-22 of the estate of a decedent<, or guardianship of person or estate,
270-23 or of the person and estate of a ward,> is to be settled and
270-24 closed, the personal representative of such estate <or of such
270-25 ward> shall present to the court his verified account for final
270-26 settlement. In such account it shall be sufficient to refer to the
270-27 inventory without describing each item of property in detail, and
271-1 to refer to and adopt any and all proceedings had in the
271-2 administration <or guardianship, as the case may be,> concerning
271-3 sales, renting or hiring, leasing for mineral development, or any
271-4 other transactions on behalf of the estate <or of the ward, as the
271-5 case may be>, including exhibits, accounts, and vouchers previously
271-6 filed and approved, without restating the particular items thereof.
271-7 Each final account, however, shall be accompanied by proper
271-8 vouchers in support of each item thereof not already accounted for
271-9 and shall show, either by reference to any proceedings authorized
271-10 above or by statement of the facts:
271-11 <(a) As to Estates of Decedents.>
271-12 1. The property belonging to the estate which has come
271-13 into the hands of the executor or administrator.
271-14 2. The disposition that has been made of such
271-15 property.
271-16 3. The debts that have been paid.
271-17 4. The debts and expenses, if any, still owing by the
271-18 estate.
271-19 5. The property of the estate, if any, still remaining
271-20 on hand.
271-21 6. The persons entitled to receive such estate, their
271-22 relationship to the decedent, and their residence, if known, and
271-23 whether adults or minors, and, if minors, the names of their
271-24 guardians, if any.
271-25 7. All advancements or payments that have been made,
271-26 if any, by the executor or administrator from such estate to any
271-27 such person.
272-1 <(b) As to Estates of Wards.>
272-2 <1. The property, rents, revenues, and profits
272-3 received by the guardian, and belonging to his ward, during his
272-4 guardianship.>
272-5 <2. The disposition made of such property, rents,
272-6 revenues, and profits.>
272-7 <3. The expenses and debts, if any, against the estate
272-8 remaining unpaid.>
272-9 <4. The property of the estate remaining in the hands
272-10 of such guardian, if any.>
272-11 <5. Such other facts as appear necessary to a full and
272-12 definite understanding of the exact condition of the guardianship.>
272-13 SECTION 70. Section 406, Texas Probate Code, is amended to
272-14 read as follows:
272-15 Sec. 406. Procedure in Case of Neglect or Failure to File
272-16 Final Account; Payments Due Meantime. If a personal representative
272-17 charged with the duty of filing a final account fails or neglects
272-18 so to do at the proper time, the court shall, upon its own motion,
272-19 or upon the written complaint of any one interested in the
272-20 decedent's <or ward's> estate which has been administered, cause
272-21 such representative to be cited to appear and present such account
272-22 within the time specified in the citation. <So far as applicable,
272-23 this Section shall also govern with respect to guardians of the
272-24 person. Meantime, rentals or other payments becoming due to the
272-25 ward, his estate, or his guardian, between the date the ward's
272-26 disability terminates or the date of the ward's death and the
272-27 effective date of the guardian's discharge may be paid or tendered
273-1 to the emancipated ward, his guardian, or the personal
273-2 representative of the ward's estate, at obligor's option, and such
273-3 payment or tender shall constitute and be an absolute discharge of
273-4 such matured obligation for all purposes to the extent of the
273-5 amount thus paid or tendered.>
273-6 SECTION 71. Section 407, Texas Probate Code, is amended to
273-7 read as follows:
273-8 Sec. 407. Citation Upon Presentation of Account for Final
273-9 Settlement. Upon the filing of an account for final settlement by
273-10 temporary or permanent personal representatives of the estates of
273-11 decedents <or wards, or of the persons of wards>, citation shall
273-12 contain a statement that such final account has been filed, the
273-13 time and place when it will be considered by the court, and a
273-14 statement requiring the person or persons cited to appear and
273-15 contest the same if they see proper. Such citation shall be issued
273-16 by the county clerk to the persons and in the manner set out below.
273-17 1. In case of the estates of deceased persons, notice
273-18 shall be given by the personal representative to each heir or
273-19 beneficiary of the decedent by certified mail, return receipt
273-20 requested, unless another type of notice is directed by the court
273-21 by written order. The notice must include a copy of the account
273-22 for final settlement.
273-23 2. <If a ward be a living resident of this state who
273-24 is 14 years of age or older, and his or her residence be known, the
273-25 ward shall be cited by personal service, unless the ward, in person
273-26 or by attorney, by writing filed with the clerk, waives the
273-27 issuance and personal service of citation.>
274-1 <3. If one who has been a ward be deceased, the ward's
274-2 executor or administrator, if one has been appointed, shall be
274-3 personally served, but no service is required if the executor or
274-4 administrator is the same person as the guardian.>
274-5 <4. If a ward's residence is unknown, or if the ward
274-6 is a non-resident of this state, or if the ward is deceased and no
274-7 representative of the ward's estate has been appointed and
274-8 qualified in this state, the citation to the ward or to the ward's
274-9 estate shall be by publication, unless the court by written order
274-10 directs citation by posting.>
274-11 <5.> If the court deems further additional notice
274-12 necessary, it shall require the same by written order. In its
274-13 discretion, the court may allow the waiver of notice of an account
274-14 for final settlement in a proceeding concerning a decedent's estate
274-15 <or a guardianship>.
274-16 SECTION 72. Section 408(b), Texas Probate Code, is amended
274-17 to read as follows:
274-18 (b) Distribution of Remaining Property. Upon final
274-19 settlement of an estate, if there be any of such estate remaining
274-20 in the hands of the personal representative, the court shall order
274-21 <that it be delivered, in case of a ward, to such ward, or in the
274-22 case of a deceased ward to the personal representative of the
274-23 deceased ward's estate if one be appointed, or to any other person
274-24 legally entitled thereto; in case of a decedent,> that a partition
274-25 and distribution be made among the persons entitled to receive such
274-26 estate.
274-27 SECTION 73. Section 409, Texas Probate Code, is amended to
275-1 read as follows:
275-2 Sec. 409. Money Becoming Due Pending Final Discharge. Until
275-3 the order of final discharge of the personal representative is
275-4 entered in the minutes of the court, money or other thing of value
275-5 falling due to the estate <or ward> while the account for final
275-6 settlement is pending may be paid, delivered, or tendered to the
275-7 personal representative, who shall issue receipt therefor, and the
275-8 obligor and/or payor shall be thereby discharged of the obligation
275-9 for all purposes.
275-10 SECTION 74. Section 414, Texas Probate Code, is amended to
275-11 read as follows:
275-12 Sec. 414. Procedure if Representative Fails to Deliver
275-13 Estate. If any personal representative of an estate <or ward>,
275-14 upon final settlement, shall neglect to deliver to the person
275-15 entitled thereto when demanded any portion of an estate or any
275-16 funds or money in his hands ordered to be delivered, such person
275-17 may file with the clerk of the court his written complaint alleging
275-18 the fact of such neglect, the date of his demand, and other
275-19 relevant facts, whereupon the clerk shall issue a citation to be
275-20 served personally upon such representative, apprising him of the
275-21 complaint and citing him to appear before the court and answer, if
275-22 he so desires, at the time designated in the citation. If at the
275-23 hearing the court finds that the citation was duly served and
275-24 returned and that the representative is guilty of the neglect
275-25 charged, the court shall enter an order to that effect, and the
275-26 representative shall be liable to such person in damages at the
275-27 rate of ten per cent of the amount or appraised value of the money
276-1 or estate so withheld, per month, for each and every month or
276-2 fraction thereof that said estate or money or funds is and/or has
276-3 been so withheld after date of demand, which damages may be
276-4 recovered in any court of competent jurisdiction.
276-5 SECTION 75. The following provisions of the Texas Probate
276-6 Code are repealed:
276-7 (1) Sections 7, 130, 131, 144, 157, 158, 184, 185,
276-8 191, 193, 228, 229, 231, 236, 237, 246, 247, 305, 330, 339A, 376,
276-9 383, 404A, 404B, 411, and 413;
276-10 (2) Parts 3 and 5, Chapter V;
276-11 (3) Part 2, Chapter VI;
276-12 (4) Parts 9 and 10, Chapter VIII; and
276-13 (5) Chapter IX.
276-14 SECTION 76. (a) This Act applies to:
276-15 (1) an application for the appointment of a guardian
276-16 that is filed on or after September 1, 1993; and
276-17 (2) an application for the appointment of a guardian
276-18 that is filed before September 1, 1993, in which a guardianship has
276-19 not been created.
276-20 (b) An application described by Subsection (a)(2) of this
276-21 section must be modified to conform to the changes in law made by
276-22 this Act.
276-23 (c) A guardianship existing on September 1, 1993, must be
276-24 modified to conform to the changes in law made by this Act.
276-25 SECTION 77. This Act takes effect September 1, 1993.
276-26 SECTION 78. The importance of this legislation and the
276-27 crowded condition of the calendars in both houses create an
277-1 emergency and an imperative public necessity that the
277-2 constitutional rule requiring bills to be read on three several
277-3 days in each house be suspended, and this rule is hereby suspended.