73R8873 CLG-D
By Naishtat H.B. No. 2685
Substitute the following for H.B. No. 2685:
By Hartnett C.S.H.B. No. 2685
A BILL TO BE ENTITLED
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 a proposed ward, an incapacitated
1-14 person, or an unborn person in a guardianship proceeding.
1-15 (2) "Authorized corporate surety" means a domestic or
1-16 foreign corporation authorized to do business in this state to
1-17 issue surety, guaranty, or indemnity bonds guaranteeing the
1-18 fidelity of guardians.
1-19 (3) "Child" includes a biological or adopted child,
1-20 whether adopted by a parent under a statutory procedure or by acts
1-21 of estoppel.
1-22 (4) "Claims" includes a liability against the estate
1-23 of a minor or an incapacitated person and debts due to the estate
1-24 of a minor or an incapacitated person.
2-1 (5) "Corporate fiduciary" means a trust company or
2-2 bank having trust powers, existing or doing business under the laws
2-3 of this state or of the United States, that is authorized by law to
2-4 act under the order or appointment of any court of record, without
2-5 giving bond, as a guardian, receiver, trustee, executor, or
2-6 administrator, or, although without general depository powers, as a
2-7 depository for any money paid into court, or to become sole
2-8 guarantor or surety in or on any bond required to be given under
2-9 the laws of this state.
2-10 (6) "Court" or "probate court" means a county court in
2-11 the exercise of its probate jurisdiction, a court created by
2-12 statute and authorized to exercise original probate jurisdiction,
2-13 or a district court exercising original probate jurisdiction in
2-14 contested matters.
2-15 (7) "Estate" or "guardianship estate" means the real
2-16 and personal property of a ward or deceased ward, both as the
2-17 property originally existed and as has from time to time changed in
2-18 form by sale, reinvestment, or otherwise, and as augmented by any
2-19 accretions and additions to (including any property to be
2-20 distributed to the representative of the deceased ward by the
2-21 trustee of a trust that terminates on the ward's death) or
2-22 substitutions for the property, and as diminished by any decreases
2-23 to or distributions from the property.
2-24 (8) "Exempt property" refers to that property of a
2-25 deceased ward's estate that is exempt from execution or forced sale
2-26 by the constitution or laws of this state, and to the allowance in
2-27 lieu of the property.
3-1 (9) "Guardian ad litem" means a person who is
3-2 appointed by a court to represent a minor or other incapacitated
3-3 person in a guardianship proceeding.
3-4 (10) "Guardianship program" means a local, county, or
3-5 regional program that provides guardianship and related services to
3-6 an incapacitated person or other person who needs assistance in
3-7 making decisions concerning the person's own welfare or financial
3-8 affairs.
3-9 (11) "Incapacitated person" means:
3-10 (A) a minor;
3-11 (B) an adult individual who, because of a
3-12 physical or mental condition, is substantially unable to provide
3-13 food, clothing, or shelter for himself or herself, to care for the
3-14 individual's own physical health, or to manage the individual's own
3-15 financial affairs;
3-16 (C) a missing person; or
3-17 (D) a person who must have a guardian appointed
3-18 to receive funds due the person from any governmental source.
3-19 (12) "Interested persons" or "persons interested"
3-20 means an heir, devisee, spouse, creditor, or any other person
3-21 having a property right in, or claim against, the estate being
3-22 administered or a person interested in the welfare of an
3-23 incapacitated person, including a minor.
3-24 (13) "Minor" means a person who is younger than 18
3-25 years of age and who has never been married or who has not had the
3-26 person's disabilities of minority removed for general purposes.
3-27 (14) "Minutes" means the guardianship minutes.
4-1 (15) "Missing person" means a person reported by an
4-2 executive department of the United States to be a prisoner of war
4-3 or missing in the course of public service to the United States.
4-4 (16) "Mortgage" or "lien" includes a deed of trust;
4-5 vendor's lien; chattel mortgage; mechanic's, materialman's, or
4-6 laborer's lien; judgment, attachment, or garnishment lien; pledge
4-7 by hypothecation; and a federal or state tax lien.
4-8 (17) "Next of kin" includes an adopted child, the
4-9 descendants of an adopted child, and the adoptive parent of an
4-10 adopted child.
4-11 (18) "Parent" means the mother of a child, a man
4-12 presumed to be the biological father of a child, a man who has been
4-13 adjudicated to be the biological father of a child by a court of
4-14 competent jurisdiction, or an adoptive mother or father of a child,
4-15 but does not include a parent as to whom the parent-child
4-16 relationship has been terminated.
4-17 (19) "Person" includes natural persons, corporations,
4-18 and guardianship programs.
4-19 (20) "Personal property" includes an interest in
4-20 goods, money, choses in action, evidence of debts, and chattels
4-21 real.
4-22 (21) "Personal representative" or "representative"
4-23 includes a guardian, and a successor guardian.
4-24 (22) "Private professional guardian" means a person
4-25 who is engaged in the business of providing guardianship services.
4-26 (23) "Proceedings in guardianship," "guardianship
4-27 matter," "guardianship matters," "guardianship proceeding," and
5-1 "proceedings for guardianship" are synonymous and include a matter
5-2 or proceeding relating to a guardianship, a proceeding other than a
5-3 guardianship relating to an incapacitated person, or any other
5-4 matter addressed by this chapter.
5-5 (24) "Property" includes both real and personal
5-6 property.
5-7 (25) "Proposed ward" means a person alleged to be
5-8 incapacitated in a guardianship proceeding.
5-9 (26) "Real property" includes estates and interests in
5-10 lands, corporeal or incorporeal, legal or equitable, other than
5-11 chattels real.
5-12 (27) "Statutory probate court" means a statutory court
5-13 whose jurisdiction is limited by statute to the general
5-14 jurisdiction of a probate court and a court whose statutorily
5-15 designated name contains the word "probate." County courts at law
5-16 exercising probate jurisdiction are not statutory probate courts
5-17 under this chapter unless the statutorily designated name of the
5-18 county courts at law includes the word "probate."
5-19 (28) "Surety" includes a personal and a corporate
5-20 surety.
5-21 (29) "Ward" is a person for whom a guardian has been
5-22 appointed.
5-23 (30) The singular number includes the plural; the
5-24 plural number includes the singular.
5-25 (31) The masculine gender includes the feminine and
5-26 neuter.
5-27 Sec. 602. POLICY; PURPOSE OF GUARDIANSHIP. A court may
6-1 appoint a guardian only to the extent required by an incapacitated
6-2 person's actual mental or physical limitations and only as
6-3 necessary to promote and protect the well-being of the person. If
6-4 the person is not a minor, the court may not use age as the sole
6-5 factor in determining whether to appoint a guardian for the person.
6-6 The court shall design the guardianship to encourage the
6-7 development or maintenance of maximum self-reliance and
6-8 independence in the incapacitated person.
6-9 Sec. 603. LAWS APPLICABLE TO GUARDIANSHIPS. (a) To the
6-10 extent applicable and not inconsistent with other provisions of
6-11 this code, the laws and rules governing estates of decedents apply
6-12 to and govern guardianships.
6-13 (b) A reference in other sections of this code or in other
6-14 law to a person who is mentally, physically, or legally
6-15 incompetent, a person who is judicially declared incompetent, an
6-16 incompetent or an incompetent person, a person of unsound mind, or
6-17 a habitual drunkard means an incapacitated person.
6-18 Sec. 604. PROCEEDING IN REM. From the filing of the
6-19 application for the appointment of a guardian of the estate or
6-20 person, or both, until the guardianship is settled and closed under
6-21 this chapter, the administration of the estate of a minor or other
6-22 incapacitated person is one proceeding for purposes of jurisdiction
6-23 and is a proceeding in rem.
6-24 PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS
6-25 SUBPART A. JURISDICTION
6-26 Sec. 605. County Court Jurisdiction. The county court has
6-27 the general jurisdiction of a probate court. The county court
7-1 shall appoint guardians of minors and other incapacitated persons,
7-2 grant letters of guardianship, settle accounts of guardians, and
7-3 transact all business appertaining to estates subject to
7-4 guardianship, including the settlement, partition, and distribution
7-5 of the estates. The county court may also enter other orders as
7-6 may be authorized under this chapter.
7-7 Sec. 606. District Court and Other Court of Record
7-8 Jurisdiction. (a) The district court has original control and
7-9 jurisdiction over guardians and wards under regulations as may be
7-10 prescribed by law.
7-11 (b) In those counties in which there is no statutory probate
7-12 court, county court at law, or other statutory court exercising the
7-13 jurisdiction of a probate court, all applications, petitions and
7-14 motions regarding guardianships, mental illness matters, and other
7-15 matters covered by this chapter shall be filed and heard in the
7-16 county court, except that in contested guardianship matters, the
7-17 judge of the county court may on the judge's own motion, or shall
7-18 on the motion of any party to the proceeding, according to the
7-19 motion, request as provided by Section 25.0022, Government Code,
7-20 and its subsequent amendments the assignment of a statutory probate
7-21 judge to hear the contested portion of the proceeding, or transfer
7-22 the contested portion of the proceeding to the district court,
7-23 which may hear the transferred contested matters as if originally
7-24 filed in the district court. The county court continues to
7-25 exercise jurisdiction over the management of the guardianship with
7-26 the exception of the contested matter until final disposition of
7-27 the contested matter is made by the assigned judge or the district
8-1 court. In contested matters transferred to the district court as
8-2 provided by this subsection, the district court, concurrently with
8-3 the county court, has the general jurisdiction of a probate court.
8-4 On resolution of all pending contested matters, the district court
8-5 shall transfer the contested portion of the guardianship proceeding
8-6 to the county court for further proceedings not inconsistent with
8-7 the orders of the district court. If a contested portion of the
8-8 proceeding is transferred to a district court under this
8-9 subsection, the clerk of the district court may perform in relation
8-10 to the transferred portion of the proceeding any function a county
8-11 clerk may perform in that type of contested proceeding.
8-12 (c) In those counties in which there is a statutory probate
8-13 court, county court at law, or other statutory court exercising the
8-14 jurisdiction of a probate court, all applications, petitions and
8-15 motions regarding guardianships, mental illness matters, or other
8-16 matters addressed by this chapter shall be filed and heard in those
8-17 courts and the constitutional county court, rather than in the
8-18 district courts, unless otherwise provided by the legislature, and
8-19 the judge of a county court may hear any of those matters sitting
8-20 for the judge of any other county court. Except as provided by
8-21 Section 608 of this code, in contested guardianship matters, the
8-22 judge of the constitutional county court may on the judge's own
8-23 motion, and shall on the motion of a party to the proceeding,
8-24 transfer the proceeding to the statutory probate court, county
8-25 court at law, or other statutory court exercising the jurisdiction
8-26 of a probate court. The court to which the proceeding is
8-27 transferred may hear the proceeding as if originally filed in the
9-1 court.
9-2 (d) A statutory probate court has concurrent jurisdiction
9-3 with the district court in all actions by or against a person in
9-4 the person's capacity as guardian.
9-5 (e) A court that exercises original probate jurisdiction has
9-6 the power to hear all matters incident to an estate. When a surety
9-7 is called on to perform in place of a guardian, a court exercising
9-8 original probate jurisdiction may award judgment against the
9-9 guardian in favor of the guardian's surety in the same suit.
9-10 (f) A final order of a court that exercises original probate
9-11 jurisdiction is appealable to a court of appeals.
9-12 Sec. 607. Matters Appertaining and Incident to an Estate.
9-13 (a) In a proceeding in a constitutional county court or a
9-14 statutory county court at law, the phrases "appertaining to
9-15 estates" and "incident to an estate" in this chapter include the
9-16 appointment of guardians, the issuance of letters of guardianship,
9-17 a claim by or against a guardianship estate, all actions for trial
9-18 of title to land incident to a guardianship estate and for the
9-19 enforcement of liens incident to a guardianship estate, all actions
9-20 for trial of the right of property incident to a guardianship
9-21 estate, and generally all matters relating to the settlement,
9-22 partition, and distribution of a guardianship estate.
9-23 (b) In a proceeding in a statutory probate court or district
9-24 court, the phrases "appertaining to estates" and "incident to an
9-25 estate" in this chapter include the appointment of guardians, the
9-26 issuance of letters of guardianship, all claims by or against a
9-27 guardianship estate, all actions for trial of title to land and for
10-1 the enforcement of liens on the land, all actions for trial of the
10-2 right of property, and generally all matters relating to the
10-3 settlement, partition, and distribution of a guardianship estate.
10-4 A statutory probate court, in the exercise of its jurisdiction and
10-5 notwithstanding any other provision of this chapter, may hear all
10-6 suits, actions, and applications filed against or on behalf of any
10-7 guardianship. In a situation in which the jurisdiction of a
10-8 statutory probate court is concurrent with that of a district
10-9 court, a cause of action appertaining to or incident to a
10-10 guardianship estate shall be brought in a statutory probate court
10-11 rather than in the district court.
10-12 (c) In all actions by or against a person in the person's
10-13 capacity as a guardian, a statutory probate court has concurrent
10-14 jurisdiction with a district court.
10-15 (d) A statutory probate court may exercise the pendent and
10-16 ancillary jurisdiction necessary to promote judicial efficiency and
10-17 economy.
10-18 (e) Subsections (c) and (d) of this section apply whether or
10-19 not the matter is appertaining to or incident to a guardianship
10-20 estate.
10-21 Sec. 608. Transfer of Guardianship Proceeding. A judge of a
10-22 statutory probate court on the motion of a party to the action or
10-23 of a person interested in a guardianship, may transfer to the
10-24 judge's court from a district, county, or statutory court a cause
10-25 of action appertaining to or incident to a guardianship estate that
10-26 is pending in the statutory probate court and may consolidate the
10-27 transferred cause of action with the other proceedings in the
11-1 statutory probate court relating to the guardianship estate.
11-2 Sec. 609. Contested Guardianship of the Person of a Minor.
11-3 (a) If an interested person contests an application for the
11-4 appointment of a guardian of the person of a minor or an interested
11-5 person seeks the removal of a guardian of the person of a minor,
11-6 the judge, on the judge's own motion, may transfer all matters
11-7 relating to the guardianship of the person of the minor to a court
11-8 of competent jurisdiction in which a suit affecting the
11-9 parent-child relationship under the Family Code is pending.
11-10 (b) The probate court that transfers a proceeding under this
11-11 section to a court with proper jurisdiction over suits affecting
11-12 the parent-child relationship shall send to the court to which the
11-13 transfer is made the complete files in all matters affecting the
11-14 guardianship of the person of the minor and certified copies of all
11-15 entries in the minutes. The transferring court shall keep a copy
11-16 of the transferred files. If the transferring court retains
11-17 jurisdiction of the guardianship of the estate of the minor or of
11-18 another minor who was the subject of the suit, the court shall send
11-19 a copy of the complete files to the court to which the transfer is
11-20 made and shall keep the original files.
11-21 (c) The court to which a transfer is made under this section
11-22 shall apply the procedural and substantive provisions of the Family
11-23 Code, including Section 11.05(h), and its subsequent amendments, in
11-24 regard to enforcing an order rendered by the court from which the
11-25 proceeding was transferred.
11-26 SUBPART B. VENUE
11-27 Sec. 610. VENUE FOR APPOINTMENT OF GUARDIAN. (a) Except as
12-1 otherwise authorized by this section, a proceeding for the
12-2 appointment of a guardian for the person or estate, or both, of an
12-3 incapacitated person shall be brought in the county in which the
12-4 proposed ward resides or is located on the date the application is
12-5 filed or in the county in which the principal estate of the
12-6 proposed ward is located.
12-7 (b) A proceeding for the appointment of a guardian for the
12-8 person or estate, or both, of a minor may be brought:
12-9 (1) in the county in which both the minor's parents
12-10 reside;
12-11 (2) if the parents do not reside in the same county,
12-12 in the county in which the parent who is the sole managing
12-13 conservator of the minor resides, or in the county in which the
12-14 parent who is the joint managing conservator with the greater
12-15 period of physical possession of and access to the minor resides;
12-16 (3) if only one parent is living and the parent has
12-17 custody of the minor, in the county in which that parent resides;
12-18 (4) if both parents are dead but the minor was in the
12-19 custody of a deceased parent, in the county in which the last
12-20 surviving parent having custody resided; or
12-21 (5) if both parents of a minor child have died in a
12-22 common disaster and there is no evidence that the parents died
12-23 other than simultaneously, in the county in which both deceased
12-24 parents resided at the time of their simultaneous deaths if they
12-25 resided in the same county.
12-26 (c) A proceeding for the appointment of a guardian who was
12-27 appointed by will may be brought in the county in which the will
13-1 was admitted to probate or in the county of the appointee's
13-2 residence if the appointee resides in this state.
13-3 (d) A proceeding for the appointment of a guardian for the
13-4 estate of a missing person may be brought:
13-5 (1) in the county in which the missing person's spouse
13-6 resides;
13-7 (2) if there is no spouse, in the county in which a
13-8 parent or child of the missing person resides; or
13-9 (3) if there is no spouse, parent, or child, in the
13-10 county in which the missing person's next of kin resides.
13-11 Sec. 611. Concurrent Venue and Transfer for Want of Venue.
13-12 (a) If two or more courts have concurrent venue of a guardianship
13-13 matter, the court in which an application for a guardianship
13-14 proceeding is initially filed has and retains jurisdiction of the
13-15 guardianship matter. A proceeding is considered commenced by the
13-16 filing of an application alleging facts sufficient to confer venue,
13-17 and the proceeding initially legally commenced extends to all of
13-18 the property of the guardianship estate.
13-19 (b) If a guardianship proceeding is commenced in more than
13-20 one county, it shall be stayed except in the county in which it was
13-21 initially commenced until final determination of proper venue is
13-22 made by the court in the county in which it was initially
13-23 commenced.
13-24 (c) If it appears to the court at any time before the
13-25 guardianship is closed that the proceeding was commenced in a court
13-26 that did not have venue over the proceeding, the court shall, on
13-27 the application of any interested person, transfer the proceeding
14-1 to the proper county.
14-2 (d) When a proceeding is transferred to another county under
14-3 a provision of this chapter, all orders entered in connection with
14-4 the proceeding shall be valid and shall be recognized in the court
14-5 to which the guardianship was ordered transferred, if the orders
14-6 were made and entered in conformance with the procedures prescribed
14-7 by this code.
14-8 Sec. 612. APPLICATION FOR TRANSFER OF GUARDIANSHIP TO
14-9 ANOTHER COUNTY. When a guardian or any other person desires to
14-10 remove the transaction of the business of the guardianship from one
14-11 county to another, the person shall file a written application in
14-12 the court in which the guardianship is pending stating the reason
14-13 for moving the transaction of business.
14-14 Sec. 613. NOTICE. (a) On filing an application to remove a
14-15 guardianship to another county, the sureties on the bond of the
14-16 guardian shall be cited by personal service to appear and show
14-17 cause why the application should not be granted.
14-18 (b) If an application is filed by a person other than the
14-19 guardian, the guardian shall be cited by personal service to appear
14-20 and show cause why the application should not be granted.
14-21 Sec. 614. COURT ACTION. On hearing an application under
14-22 Section 612 of this code, if good cause is not shown to deny the
14-23 application and it appears that removal of the guardianship is in
14-24 the best interests of the ward, the court shall enter an order
14-25 authorizing the removal on payment on behalf of the estate of all
14-26 accrued costs.
14-27 Sec. 615. TRANSCRIPT OF RECORD. When an order of removal is
15-1 made under Section 614 of this code, the clerk shall record any
15-2 unrecorded papers of the guardianship required to be recorded and
15-3 make out a complete certified transcript of all the orders,
15-4 decrees, judgments, and proceedings in the guardianship. On
15-5 payment of the clerk's fees, the clerk shall transmit the
15-6 transcript, with the original papers in the case, to the county
15-7 clerk of the county to which the guardianship was ordered removed.
15-8 Sec. 616. REMOVAL EFFECTIVE. The order removing a
15-9 guardianship does not take effect until:
15-10 (1) the transcript required by Section 615 of this
15-11 code is filed in the office of the county clerk of the county to
15-12 which the guardianship was ordered removed; and
15-13 (2) a certificate under the clerk's official seal and
15-14 reporting the filing of the transcript is filed in the court
15-15 ordering the removal by the county clerk of the county to which the
15-16 guardianship was ordered removed.
15-17 Sec. 617. CONTINUATION OF GUARDIANSHIP. When a guardianship
15-18 is removed from one county to another in accordance with this
15-19 subpart, the guardianship proceeds in the court to which it was
15-20 removed as if it had been originally commenced in that court. It
15-21 is not necessary to record in the receiving court any of the papers
15-22 in the case that were recorded in the court from which the case was
15-23 removed.
15-24 Sec. 618. NEW GUARDIAN APPOINTED ON REMOVAL. If it appears
15-25 to the court that removal of the guardianship is in the best
15-26 interests of the ward, but that because of the removal it will be
15-27 unduly expensive or unduly inconvenient to the estate for the
16-1 guardian of the estate to continue to serve in that capacity, the
16-2 court may in its order of removal revoke the letters of
16-3 guardianship and appoint a new guardian, and the former guardian
16-4 shall account for and deliver the estate as provided by this
16-5 chapter in a case in which a guardian resigns.
16-6 SUBPART C. DUTIES AND RECORDS OF CLERK
16-7 Sec. 621. Application and Other Papers to be Filed With
16-8 Clerk. (a) An application for a guardianship proceeding, a
16-9 complaint, petition, or other paper permitted or required by law to
16-10 be filed in the court in guardianship matters shall be filed with
16-11 the county clerk of the proper county.
16-12 (b) The county clerk shall file the paper received under
16-13 this section and endorse on each paper the date filed, the docket
16-14 number, and the clerk's official signature.
16-15 Sec. 622. COSTS AND SECURITY. (a) The law regulating costs
16-16 in ordinary civil cases apply to a guardianship matter unless
16-17 otherwise expressly provided by this chapter.
16-18 (b) When a person other than the guardian files an
16-19 application, complaint, or opposition in relation to a guardianship
16-20 matter, the clerk may require the person to give security for the
16-21 probable cost of the guardianship proceeding before filing. A
16-22 person interested in the guardianship or in the welfare of the
16-23 ward, or an officer of the court, at any time before the trial of
16-24 an application, complaint, or opposition in relation to a
16-25 guardianship matter, may obtain from the court, on written motion,
16-26 an order requiring the person who filed the application, complaint,
16-27 or opposition to give security for the probable costs of the
17-1 proceeding. The rules governing civil suits in the county court
17-2 relating to this subject control in these cases.
17-3 (c) No security for costs shall be required of a guardian
17-4 appointed by a court of this state in any suit brought by the
17-5 guardian in the guardian's fiduciary capacity.
17-6 Sec. 623. JUDGE'S GUARDIANSHIP DOCKET. (a) The county
17-7 clerk shall keep a record book to be styled "Judge's Guardianship
17-8 Docket" and shall enter in the record book:
17-9 (1) the name of each person on whose person or estate
17-10 a proceeding is had or is sought to be had;
17-11 (2) the name of the guardian of the estate or person
17-12 or of the applicant for letters;
17-13 (3) the date the original application for a
17-14 guardianship proceeding was filed;
17-15 (4) a minute, including the date, of each order,
17-16 judgment, decree, and proceeding in each estate; and
17-17 (5) a number of each guardianship on the docket in the
17-18 order in which a proceeding is commenced.
17-19 (b) Each paper filed in a guardianship proceeding shall be
17-20 given the corresponding docket number of the estate.
17-21 Sec. 624. CLAIM DOCKET. The county clerk shall keep a
17-22 record book to be styled "Claim Docket" and shall enter in the
17-23 claim docket all claims presented against a guardianship for court
17-24 approval. The claim docket shall be ruled in 16 columns at proper
17-25 intervals from top to bottom, with a short note of the contents at
17-26 the top of each column. One or more pages shall be assigned to
17-27 each guardianship. The following information shall be entered in
18-1 the respective columns beginning with the first or marginal
18-2 column: The names of claimants in the order in which their claims
18-3 are filed; the amount of the claim; its date; the date of filing;
18-4 when due; the date from which it bears interest; the rate of
18-5 interest; when allowed by the guardian; the amount allowed; the
18-6 date of rejection; when approved; the amount approved; when
18-7 disapproved; the class to which the claim belongs; when established
18-8 by judgment of a court; the amount of the judgment.
18-9 Sec. 625. GUARDIANSHIP MINUTES AND PAPERS TO BE RECORDED
18-10 THEREIN. The county clerk shall keep a record book styled
18-11 "Guardianship Minutes" and shall enter in the guardianship minutes
18-12 all orders in full, judgments, decrees, and proceedings of the
18-13 court, in addition to all:
18-14 (1) applications for the granting of guardianship;
18-15 (2) citations and notices, whether published or
18-16 posted, with the returns on the citations and notices;
18-17 (3) bonds and official oaths;
18-18 (4) inventories, appraisements, and lists of claims;
18-19 (5) exhibits and accounts;
18-20 (6) reports of hiring, renting, or sale;
18-21 (7) applications for sale or partition of real estate
18-22 and reports of sale and of commissioners of partition;
18-23 (8) applications for authority to execute leases for
18-24 mineral development, or for pooling or unitization of lands,
18-25 royalty, or other interest in minerals, or to lend or invest money;
18-26 (9) reports of lending or investing money; and
18-27 (10) reports of guardians of the persons.
19-1 Sec. 626. GUARDIANSHIP FEE BOOK. The county clerk shall
19-2 keep a record book styled "Guardianship Fee Book" and shall enter
19-3 in the guardianship fee book each item of costs that accrue to the
19-4 officers of the court, with witness fees, if any, showing the:
19-5 (1) party to whom the costs or fees are due;
19-6 (2) date of the accrual of the costs or fees;
19-7 (3) guardianship or party liable for the costs or
19-8 fees; and
19-9 (4) date on which the costs or fees are paid.
19-10 Sec. 627. INDEX. The county clerk shall properly index each
19-11 record book and keep it open for public inspection but may not
19-12 release it from the clerk's custody.
19-13 Sec. 628. USE OF RECORDS AS EVIDENCE. The record books
19-14 described in other sections of this chapter, or certified copies of
19-15 the record books are evidence in any court of this state.
19-16 Sec. 629. CALL OF THE DOCKETS. The judge of the court in
19-17 which a guardianship proceeding is pending, as the judge
19-18 determines, shall call guardianship matters in their regular order
19-19 on both the guardianship and claim dockets and shall make necessary
19-20 orders.
19-21 Sec. 630. CLERK MAY SET HEARINGS. If the county judge is
19-22 absent from the county seat or is on vacation, disqualified, ill,
19-23 or deceased and is unable to designate the time and place for
19-24 hearing a guardianship matter pending in the judge's court, the
19-25 county clerk of the county in which the matter is pending may
19-26 designate the time and place for hearing, entering the setting on
19-27 the judge's docket and certifying on the docket the reason that the
20-1 judge is not acting to set the hearing. If a qualified judge is
20-2 not present for the hearing, after service of the notices and
20-3 citations required by law with reference to the time and place of
20-4 hearing has been perfected, the hearing is automatically continued
20-5 from day to day until a qualified judge is present to hear and
20-6 determine the matter.
20-7 Sec. 631. CLERK'S DUTIES. (a) If the proper venue is
20-8 finally determined to be in another county, the clerk, after making
20-9 and retaining a true copy of the entire file in the case, shall
20-10 transmit the original file to the proper county, and a proceeding
20-11 shall be held in the proper county in the same manner as if the
20-12 proceeding had originally been instituted in the proper county.
20-13 (b) By transmitting to the proper court in the proper county
20-14 for venue purposes the original file in the case, with certified
20-15 copies of all entries in the minutes made in the file, an
20-16 administration of the guardianship in the proper county for venue
20-17 purposes shall be completed in the same manner as if the proceeding
20-18 had originally been instituted in that county.
20-19 (c) The clerk of the court from which the proceeding is
20-20 transferred shall transmit to the court to which the proceeding is
20-21 transferred the original file in the proceeding and a certified
20-22 copy of the entries in the minutes that relate to the proceeding.
20-23 SUBPART D. SERVICE AND NOTICE
20-24 Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
20-25 CITATION, NOTICES, AND WRITS IN GUARDIANSHIP MATTERS. (a) A
20-26 person does not need to be cited or otherwise given notice in a
20-27 guardianship matter except in situations in which this chapter
21-1 expressly provides for citation or the giving of notice. If this
21-2 chapter does not expressly provide for citation or the issuance or
21-3 return of notice in a guardianship matter, the court may require
21-4 that notice be given. If the court requires that notice be given,
21-5 the court shall prescribe the form and manner of service and return
21-6 of service.
21-7 (b) Unless a court order is required by a provision of this
21-8 chapter, the county clerk shall issue without a court order
21-9 necessary citations, writs, and process in guardianship matters and
21-10 all notices not required to be issued by guardians.
21-11 (c) A citation and notice issued by the clerk shall be
21-12 signed and sealed by the clerk and shall be styled "The State of
21-13 Texas." A notice required to be given by a guardian shall be in
21-14 writing and signed by the guardian in the guardian's official
21-15 capacity. A citation or notice shall be dated and directed to the
21-16 person that is being cited or notified and must state the style and
21-17 number of the proceeding and the court in which the proceeding is
21-18 pending and must describe generally the nature of the proceeding or
21-19 matter to which the citation or notice relates. A precept directed
21-20 to an officer is not necessary. A citation or notice must direct
21-21 the person cited or notified to appear by filing a written contest
21-22 or answer or perform other required acts. A citation or notice
21-23 must state when and where an appearance or performance by a person
21-24 cited or notified is required. A citation or notice is not
21-25 defective because it contains a precept directed to an officer
21-26 authorized to serve it. A writ or other process other than a
21-27 citation or notice shall be directed "To any sheriff or constable
22-1 within the State of Texas" and may not be held defective because it
22-2 is directed to the sheriff or any constable of a specific county if
22-3 the writ or other process is properly served within the named
22-4 county by an officer authorized to serve it.
22-5 (d) In all situations in which this chapter requires that
22-6 notice be given or that a person be cited, and in which a specific
22-7 method of giving the notice or citing the person, or a specific
22-8 method of service and return of the citation or notice is not
22-9 given, or an insufficient or inadequate provision appears with
22-10 respect to any matter relating to citation or notice, or on request
22-11 of an interested person, notice or citation shall be issued,
22-12 served, and returned in the manner the court, by written order,
22-13 directs in accordance with this chapter and the Texas Rules of
22-14 Civil Procedure and has the same force and effect as if the manner
22-15 of service and return had been specified in this chapter.
22-16 (e) Except in instances in which this chapter expressly
22-17 provides for another method of service, a notice or citation
22-18 required to be served on a guardian or receiver shall be served by
22-19 the clerk that issues the citation or notice. The clerk shall
22-20 serve the citation or notice by sending the original citation or
22-21 notice by registered or certified mail to the attorney of record
22-22 for the guardian or receiver or to the guardian or receiver, if the
22-23 guardian or receiver does not have an attorney of record.
22-24 (f)(1) In cases in which it is provided that personal
22-25 service shall be had with respect to a citation or notice, the
22-26 citation or notice must be served on the attorney of record for the
22-27 person who is being cited or notified. Notwithstanding the
23-1 requirement of personal service, service may be made on the
23-2 attorney by any method specified under this chapter for service on
23-3 an attorney. If there is no attorney of record in the proceeding
23-4 for the person who is being cited or notified, or if an attempt to
23-5 make service on the attorney was unsuccessful, a citation or notice
23-6 directed to a person within this state must be served in person by
23-7 the sheriff or constable on the person who is being cited or
23-8 notified by delivering to the person a true copy of the citation or
23-9 notice at least 10 days before the return day on the citation or
23-10 notice, exclusive of the date of service. If the person who is
23-11 being cited or notified is absent from the state or is a
23-12 nonresident, the citation or notice may be served by a
23-13 disinterested person competent to make oath of the fact. The
23-14 citation or notice served by a disinterested person shall be
23-15 returnable at least 10 days after the date of service, exclusive of
23-16 the date of service. The return of the person serving the citation
23-17 or notice shall be endorsed on or attached to the citation or
23-18 notice. The return must show the time and place of service,
23-19 certify that a true copy of the citation or notice was delivered to
23-20 the person directed to be served, be subscribed and sworn to before
23-21 an officer authorized by the laws of this state to take affidavits,
23-22 under the hand and official seal of the officer, and returned to
23-23 the county clerk who issued the citation or notice. If the
23-24 citation or notice is returned with the notation that the person
23-25 sought to be served, whether or not within this state, cannot be
23-26 found, the clerk shall issue a new citation or notice directed to
23-27 the person sought to be served and service shall be by publication.
24-1 (2) When citation or notice is required to be posted,
24-2 the sheriff or constable shall post the citation or notice at the
24-3 courthouse door of the county in which the proceeding is pending,
24-4 or at the place in or near the courthouse where public notices
24-5 customarily are posted, for at least 10 days before the return day
24-6 of the citation or notice, exclusive of the date of posting. The
24-7 clerk shall deliver the original and a copy of the citation or
24-8 notice to the sheriff or a constable of the proper county, who
24-9 shall post the copy as prescribed by this section and return the
24-10 original to the clerk, stating in a written return of the copy the
24-11 time when and the place where the sheriff or constable posted the
24-12 copy. The date of posting is the date of service. When posting of
24-13 notice by a guardian is authorized or required, the method
24-14 prescribed by this section shall be followed. The notice is to be
24-15 issued in the name of the guardian, addressed and delivered to,
24-16 posted and returned by, the proper officer, and filed with the
24-17 clerk.
24-18 (3) When a person is to be cited or notified by
24-19 publication, the citation or notice shall be published once in a
24-20 newspaper of general circulation in the county in which the
24-21 proceeding is pending, and the publication shall be not less than
24-22 10 days before the return date of the citation or notice, exclusive
24-23 of the date of publication. The date of publication of the
24-24 newspaper in which the citation or notice is published appears is
24-25 the date of service. If there is no newspaper of general
24-26 circulation published or printed in the county in which citation or
24-27 notice is to be had, service of the citation or notice shall be by
25-1 posting.
25-2 (4)(A) When a citation or notice is required or
25-3 permitted to be served by registered or certified mail, other than
25-4 a notice required to be given by a guardian, the clerk shall issue
25-5 the citation or notice and shall serve the citation or notice by
25-6 sending the original citation or notice by registered or certified
25-7 mail. A guardian shall issue notice required to be given by the
25-8 guardian by registered or certified mail, and the guardian shall
25-9 serve the notice by sending the original notice by registered or
25-10 certified mail. The citation or notice shall be mailed return
25-11 receipt requested with instructions to deliver to the addressee
25-12 only. The envelope containing the citation or notice shall be
25-13 addressed to the attorney of record in the proceeding for the
25-14 person who is being cited or notified, but if there is no attorney
25-15 of record, or if the citation or notice is returned undelivered,
25-16 the envelope containing the citation or notice shall be addressed
25-17 to the person who is being cited or notified. A copy of the
25-18 citation or notice and the certificate of the clerk or guardian
25-19 showing the fact and date of mailing shall be filed and recorded.
25-20 If a receipt is returned, it shall be attached to the certificate.
25-21 (B) When a citation or notice is required or
25-22 permitted to be served by ordinary mail, the clerk or the guardian
25-23 when required by statute or court order, shall serve the citation
25-24 or notice by mailing the original to the person being cited or
25-25 notified. A copy of the citation or notice and a certificate of
25-26 the person serving the citation or notice that shows the fact and
25-27 time of mailing shall be filed and recorded.
26-1 (C) When service is made by mail, the date of
26-2 mailing is the date of service. Service by mail must be made not
26-3 less than 20 days before the return day of the citation or notice,
26-4 exclusive of the date of service.
26-5 (D) If a citation or notice served by mail is
26-6 returned undelivered, a new citation or notice shall be issued, and
26-7 the new citation or notice shall be served by posting.
26-8 (g) A citation or notice issued by the clerk and served by
26-9 personal service, by mail, by posting, or by publication shall be
26-10 returned to the court from which the citation or notice was issued
26-11 on the first Monday after the service is perfected.
26-12 (h) In a guardianship matter in which citation or notice is
26-13 required to be served by posting and issued in conformity with the
26-14 applicable provision of this code, the citation or notice and the
26-15 service of and return of the citation or notice is sufficient and
26-16 valid if a sheriff or constable posts a copy of the citation or
26-17 notice at the place or places prescribed by this chapter on a day
26-18 that is sufficiently before the return day contained in the
26-19 citation or notice for the period of time for which the citation or
26-20 notice is required to be posted to elapse before the return day of
26-21 the citation or notice. The sufficiency or validity of the
26-22 citation or notice or the service of or return of the service of
26-23 the citation or notice is not affected by the fact that the sheriff
26-24 or constable makes his return on the citation or notice and returns
26-25 the citation or notice to the court before the period elapses for
26-26 which the citation or notice is required to be posted, even though
26-27 the return is made, and the citation or notice is returned to the
27-1 court, on the same day it is issued.
27-2 (i) Proof of service by publication, posting, mailing, or
27-3 otherwise in all cases requiring notice or citation shall be filed
27-4 before a hearing. Proof of service made by a sheriff or constable
27-5 shall be made by the return of service. Service made by a private
27-6 person shall be proved by the person's affidavit. Proof of service
27-7 by publication shall be made by an affidavit of the publisher or of
27-8 an employee of the publisher that shows the issue date of the
27-9 newspaper that carried the notice or citation and that has attached
27-10 to or embodied in the affidavit a copy of the notice or citation.
27-11 Proof of service by mail shall be made by the certificate of the
27-12 clerk, or the affidavit of the guardian or other person that makes
27-13 the service that states the fact and time of mailing. The return
27-14 receipt must be attached to the certificate, if a receipt has been
27-15 returned if service is made by registered or certified mail.
27-16 (j) At any time after an application is filed for the
27-17 purpose of commencing a guardianship proceeding, a person
27-18 interested in the estate or welfare of a ward or an incapacitated
27-19 person may file with the clerk a written request that the person be
27-20 notified of any or all specifically designated motions,
27-21 applications, or pleadings filed by any person, or by a person
27-22 specifically designated in the request. The person who makes the
27-23 request is responsible for the fees and costs associated with the
27-24 documents specified in the request. The clerk may require a
27-25 deposit to cover the estimated costs of furnishing the person with
27-26 the requested notice. The clerk by ordinary mail shall send to the
27-27 requesting person a copy of any document specified in the request.
28-1 A proceeding is not invalid if the clerk fails to comply with the
28-2 request under this subsection.
28-3 Sec. 633. NOTICE AND CITATION FOR APPLICATION OF
28-4 GUARDIANSHIP. (a) On the filing of an application for
28-5 guardianship, notice shall be issued and served as provided by this
28-6 section.
28-7 (b) The court clerk shall issue a notice stating that the
28-8 application for guardianship was filed, the name of the proposed
28-9 ward, and the name of the applicant. The notice must cite all
28-10 persons interested in the welfare of the proposed ward to appear at
28-11 the time and place stated in the notice if they wish to contest the
28-12 application.
28-13 (c) A copy of the notice shall be posted, and the sheriff or
28-14 other officer posting the notice shall return the original notice,
28-15 officially signed and marked in writing with the time and place of
28-16 posting.
28-17 (d) The sheriff or other officer posting the notice shall
28-18 personally serve a copy of the notice, with citation to appear and
28-19 answer the application for guardianship, to:
28-20 (1) the proposed ward, unless the proposed ward is a
28-21 missing person, or a parent with whom the minor resides if the
28-22 proposed ward is a minor who is 14 years of age or younger;
28-23 (2) the proposed ward's parents; and
28-24 (3) any conservator or person having control of the
28-25 care and welfare of the proposed ward.
28-26 (e) The court clerk, at the applicant's request, or the
28-27 applicant shall mail a copy of the notice by registered or
29-1 certified mail, return receipt requested, to the following persons
29-2 if their whereabouts are known or can be reasonably ascertained:
29-3 (1) if the proposed ward is a person 60 years of age
29-4 or older, to the spouse, all siblings, and all children of a
29-5 proposed ward;
29-6 (2) all other persons related within the first degree
29-7 by consanguinity or affinity to the proposed ward;
29-8 (3) any person living with the proposed ward in a
29-9 private residence;
29-10 (4) the administrator of a nursing home facility or
29-11 similar facility in which the proposed ward resides; and
29-12 (5) a person whom the applicant knows to hold a power
29-13 of attorney signed by the proposed ward.
29-14 (f) A person other than the proposed ward who is entitled to
29-15 receive notice or personal service of citation under Subsections
29-16 (d) and (e) of this section may, in person or by attorney ad litem,
29-17 by writing filed with the clerk, waive the receipt of notice or the
29-18 issuance and personal service of citation.
29-19 (g) The court may not act on an application for the creation
29-20 of a guardianship until the Monday following the expiration of the
29-21 10-day period beginning the date service of notice and citation has
29-22 been made as provided by this section.
29-23 Sec. 634. SERVICE ON ATTORNEY. If an attorney has entered
29-24 an appearance on record for a party in a guardianship proceeding, a
29-25 citation or notice required to be served on the party shall be
29-26 served on the attorney. Service on the attorney of record is in
29-27 lieu of service on the party for whom the attorney appears. Except
30-1 as provided by Section 632(f) of this code, an attorney ad litem
30-2 may not waive personal service of citation. A notice served on an
30-3 attorney under this section may be served by registered or
30-4 certified mail or by delivery to the attorney in person. A party
30-5 to the proceeding or the party's attorney of record, an appropriate
30-6 sheriff or constable, or another person who is competent to testify
30-7 may serve notice or citation to an attorney under this section. A
30-8 written statement by an attorney of record, the return of the
30-9 officer, or the affidavit of a person that shows service is prima
30-10 facie evidence of the fact of service.
30-11 Sec. 635. WAIVER OF NOTICE. A competent person who is
30-12 interested in a hearing in a guardianship proceeding, in person or
30-13 by attorney, may waive in writing notice of the hearing. A consul
30-14 or other representative of a foreign government, whose appearance
30-15 has been entered as provided by law on behalf of a person residing
30-16 in a foreign country, may waive notice on behalf of the person. A
30-17 person who submits to the jurisdiction of the court in a hearing is
30-18 deemed to have waived notice of the hearing.
30-19 Sec. 636. NOTICES TO VETERANS ADMINISTRATION BY GUARDIANS.
30-20 When an annual or other account of funds, or an application for the
30-21 expenditure of or investment of funds is filed by a guardian whose
30-22 ward is a beneficiary of the Veterans Administration, or when a
30-23 claim against the estate of a ward who is a beneficiary of the
30-24 Veterans Administration is filed, the court shall set a date for
30-25 the hearing of the account, application, petition, or claim to be
30-26 held not less than 20 days from the date of the filing of the
30-27 account, application, petition, or claim. The clerk of the court
31-1 in which the account, application, petition, or claim is filed
31-2 shall give notice of the hearing to the office of Veterans
31-3 Administration in whose territory the court is located of the
31-4 hearing by mailing to the office a certified copy of the account,
31-5 application, petition, or claim not less than 15 days before the
31-6 hearing date. An office of Veterans Administration, through its
31-7 attorney, may waive the service of notice and the time within which
31-8 a hearing may be had in those cases. The account, application,
31-9 petition, or claim shall be filed in duplicate, and the clerk of
31-10 the court is entitled to a fee of 25 cents, taxable against the
31-11 estate, for certifying the copy of the account, application,
31-12 petition, or claim. The clerk shall mail to the office of the
31-13 Veterans Administration the certified copy. If not filed in
31-14 duplicate, the clerk shall be entitled to an additional fee of 15
31-15 cents per 100 words for making a copy of the account, application,
31-16 petition, or claim. The additional copying costs shall be taxed
31-17 and collected from the guardian and may not be charged to the
31-18 ward's estate.
31-19 SUBPART E. TRIAL AND HEARING MATTERS
31-20 Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a
31-21 pleading in a guardianship matter or an order based on the pleading
31-22 based on a defect of form or substance in the pleading, unless the
31-23 defect has been timely objected to and called to the attention of
31-24 the court in which the proceeding was or is pending.
31-25 Sec. 642. STANDING TO COMMENCE OR CONTEST PROCEEDING. Any
31-26 person has the right to commence any guardianship proceeding or to
31-27 appear and contest any guardianship proceeding or the appointment
32-1 of a particular person as guardian.
32-2 Sec. 643. TRIAL BY JURY. A party in a contested
32-3 guardianship proceeding is entitled, on request, to a jury trial.
32-4 Sec. 644. HEARING BY SUBMISSION. (a) A court may consider
32-5 by submission a motion or application filed under this chapter
32-6 unless:
32-7 (1) the proceeding is contested;
32-8 (2) the motion or application is superseded by local
32-9 rules; or
32-10 (3) the proceeding is an application for the
32-11 appointment of a guardian.
32-12 (b) A motion or application that a court may consider under
32-13 submission must be accompanied by a notice of the filing of the
32-14 motion or application that contains the date the motion or
32-15 application is to be submitted to the court. The time for notice
32-16 provided under this subsection may not be less than the time
32-17 otherwise prescribed by law for notice of other motions or
32-18 applications filed with the court.
32-19 (c) Without court approval, a motion or application that a
32-20 court may consider under submission may not be submitted to the
32-21 court before the 10th day after the date the motion or application
32-22 was filed.
32-23 (d) A motion or application must be submitted to the court
32-24 for a ruling on the date of submission that is contained in the
32-25 notice of submission under Subsection (b) of this section or on a
32-26 later date that is approved by the court.
32-27 (e) Without court approval, a response to a motion or
33-1 application that a court may consider under submission must be in
33-2 writing and must be filed before the second business day before the
33-3 date of submission.
33-4 (f) On the date of submission or another date that is
33-5 approved by the court, the court shall schedule a hearing for a
33-6 motion or application that a court may consider under submission
33-7 only if a response to the motion or application is filed by a
33-8 person interested in the guardianship who:
33-9 (1) contests the relief sought in the motion or
33-10 application;
33-11 (2) requests to be present at the hearing; or
33-12 (3) requests oral argument on the person's exceptions
33-13 to the motion or application.
33-14 (g) The burden of proof at a hearing on a motion or
33-15 application that is being considered by the court on submission is
33-16 on the party who is seeking relief under the motion or application.
33-17 (h) The court may consider a person's failure to file a
33-18 response to a motion or application that may be considered on
33-19 submission as a representation that the person does not oppose the
33-20 motion or application.
33-21 (i) A person's request for oral argument is not a response
33-22 to a motion or application under this section.
33-23 (j) The court, on its own motion, may order oral argument on
33-24 a motion or application that may be considered by submission.
33-25 Sec. 645. GUARDIANS AD LITEM. (a) The judge may appoint a
33-26 guardian ad litem to represent the interests of an incapacitated
33-27 person in a guardianship proceeding.
34-1 (b) A guardian ad litem is entitled to reasonable
34-2 compensation for services in the amount set by the court to be
34-3 taxed as costs in the proceeding.
34-4 (c) A guardian ad litem is an officer of the court. The
34-5 guardian ad litem shall protect the incapacitated person in a
34-6 manner that will enable the court to determine what action will be
34-7 in the best interests of the incapacitated person.
34-8 (d) If a guardian ad litem is appointed under Section 681(4)
34-9 of this code, the fees and expenses of the guardian ad litem are
34-10 costs of the litigation proceeding that made the appointment
34-11 necessary.
34-12 (e) In the interest of judicial economy, the court may
34-13 appoint as guardian ad litem under Section 681(4) of this code the
34-14 person who has been appointed attorney ad litem under Section 646
34-15 of this code or the person who is serving as an ad litem for the
34-16 benefit of the ward in any other proceeding.
34-17 Sec. 646. APPOINTMENT OF ATTORNEY AD LITEM AND INTERPRETER.
34-18 (a) In a proceeding under this chapter for the appointment of a
34-19 guardian for a person other than a missing person, the court shall
34-20 appoint an attorney ad litem to represent the interests of the
34-21 proposed ward. The attorney shall be supplied with copies of all
34-22 of the current records in the case and may have access to all of
34-23 the proposed ward's relevant medical, psychological, and
34-24 intellectual testing records.
34-25 (b) To be eligible for appointment as an attorney ad litem,
34-26 a person must be certified by the State Bar of Texas as having
34-27 successfully completed a course of study in guardianship law and
35-1 procedure sponsored by the state bar.
35-2 (c) For certification under Subsection (b) of this section,
35-3 the state bar may not require more than eight hours of credit.
35-4 (d) A certificate issued under Subsection (b) of this
35-5 section expires on the second anniversary of the date the
35-6 certificate was issued. A person whose certificate has expired
35-7 must obtain a new certificate to be eligible for appointment as an
35-8 attorney ad litem. The applicant is not required to again complete
35-9 the course of study required by Subsection (b) of this section
35-10 unless the state bar determines that the course has changed
35-11 substantially since the person last completed the course.
35-12 (e) Subsections (b)-(d) of this section do not apply to a
35-13 person who served as attorney ad litem in a guardianship proceeding
35-14 before September 1, 1993.
35-15 (f) At the time of the appointment of the attorney ad litem,
35-16 the court shall also appoint a language interpreter or a sign
35-17 interpreter if necessary to ensure effective communication between
35-18 the proposed ward and the attorney.
35-19 Sec. 647. DUTIES OF ATTORNEY AD LITEM. (a) An attorney ad
35-20 litem appointed under Section 646 of this code to represent a
35-21 proposed ward shall, within a reasonable time before the hearing,
35-22 interview the proposed ward. To the greatest extent possible, the
35-23 attorney shall discuss with the proposed ward the law and facts of
35-24 the case, the proposed ward's legal options regarding disposition
35-25 of the case, and the grounds on which guardianship is sought.
35-26 (b) Before the hearing, the attorney shall review the
35-27 application for guardianship, certificates of current physical,
36-1 medical, and intellectual examinations, and all of the proposed
36-2 ward's relevant medical, psychological, and intellectual testing
36-3 records. The attorney shall also interview supporting witnesses
36-4 and other witnesses who will testify at the hearing.
36-5 Sec. 648. COURT VISITOR PROGRAM. (a) Each statutory
36-6 probate court shall operate a court visitor program to assess the
36-7 conditions of wards and proposed wards. Another court that has
36-8 jurisdiction over a guardianship proceeding may operate a court
36-9 visitor program in accordance with the population needs and
36-10 financial abilities of the jurisdiction. A court that operates a
36-11 court visitor program shall use persons willing to serve without
36-12 compensation to the greatest extent possible.
36-13 (b) On request by any interested person, including a ward or
36-14 proposed ward, or on its own motion, and at any time before the
36-15 appointment of a guardian or during the pendency of a guardianship
36-16 of the person or estate, a court may appoint a court visitor to
36-17 evaluate the ward or proposed ward and provide a written report
36-18 that substantially complies with Subsection (c) of this section.
36-19 (c) A court visitor's report must include:
36-20 (1) a description of the nature and degree of capacity
36-21 and incapacity of the ward or proposed ward, including the medical
36-22 history of the ward or proposed ward, if reasonably available and
36-23 not waived by the court;
36-24 (2) a medical prognosis and a list of the treating
36-25 physicians of the ward or proposed ward, when appropriate;
36-26 (3) a description of the living conditions and
36-27 circumstances of the ward or proposed ward;
37-1 (4) a description of the social, intellectual,
37-2 physical, and educational condition of the ward or proposed ward;
37-3 (5) a statement that the court visitor has personally
37-4 visited or observed the ward or proposed ward;
37-5 (6) a statement of the date of the most recent visit
37-6 by the guardian, if one has been appointed;
37-7 (7) a recommendation as to any modifications needed in
37-8 the guardianship or proposed guardianship, including removal or
37-9 denial of the guardianship; and
37-10 (8) any other information required by the court.
37-11 (d) The court visitor shall file the report not later than
37-12 the 14th day after the date of the evaluation conducted by the
37-13 court visitor, and the court visitor making the report must swear,
37-14 under penalty of perjury, to its accuracy to the best of the court
37-15 visitor's knowledge and belief.
37-16 (e) A court visitor who has not expressed a willingness to
37-17 serve without compensation is entitled to reasonable compensation
37-18 for services in an amount set by the court and to be taxed as costs
37-19 in the proceeding.
37-20 Sec. 649. EVIDENCE. In a guardianship proceeding, the rules
37-21 relating to witnesses and evidence that govern in the district
37-22 court apply as far as practicable. If there is no opposing party
37-23 or attorney of record on whom to serve notice and copies of
37-24 interrogatories, service may be had by posting notice of the
37-25 intention to take depositions for a period of 10 days as provided
37-26 by this chapter in the provisions governing a posting of notice.
37-27 When notice by posting under this section is filed with the clerk,
38-1 a copy of the interrogatories shall also be filed. At the
38-2 expiration of the 10-day period, commission may issue for taking
38-3 the depositions and the judge may file cross-interrogatories if no
38-4 person appears.
38-5 Sec. 650. DECREES AND SIGNING OF MINUTES. A decision,
38-6 order, decree, or judgment of the court in a guardianship matter
38-7 must be rendered in open court, except in a case in which it is
38-8 otherwise expressly provided. The judge shall approve and sign the
38-9 guardianship minutes on the first day of each month. If the first
38-10 day of the month falls on a Saturday, Sunday, or legal holiday, the
38-11 judge's approval shall be entered on the preceding or succeeding
38-12 day.
38-13 Sec. 651. ENFORCEMENT OF ORDERS. The judge may enforce
38-14 obedience to an order entered against a guardian by attachment and
38-15 imprisonment. An imprisonment of a guardian may not exceed three
38-16 days for any one offense, unless expressly provided otherwise in
38-17 this chapter.
38-18 SUBPART F. POST-TRIAL MATTERS
38-19 Sec. 653. EXECUTION. An execution in a guardianship matter
38-20 shall be directed "To any sheriff or any constable within the State
38-21 of Texas," made returnable in 60 days, and attested and signed by
38-22 the clerk officially under the seal of the court. A proceeding
38-23 under an execution in a guardianship matter is governed so far as
38-24 applicable by the laws regulating a proceeding under an execution
38-25 issued from the district court. An execution directed to the
38-26 sheriff or a constable of a specific county in this state may not
38-27 be held defective if the execution was properly executed within the
39-1 county by the officer to whom the direction for execution was
39-2 given.
39-3 Sec. 654. ATTACHMENT FOR PROPERTY. When a complaint in
39-4 writing and under oath that the guardian is about to remove the
39-5 estate or any part of the estate beyond the limits of the state is
39-6 made to the judge by a person interested in the estate of a minor
39-7 or other incapacitated person, the judge may order a writ to issue,
39-8 directed "To any sheriff or any constable within the State of
39-9 Texas," commanding the sheriff or constable to seize the estate or
39-10 any part of the estate and to hold the estate subject to further
39-11 court order. The judge may not issue a writ unless the complainant
39-12 gives a bond, in the sum the judge requires, payable to the
39-13 guardian of the estate and conditioned on payment of all damages
39-14 and costs that shall be recovered for a wrongful suit out of the
39-15 writ. A writ of attachment directed to the sheriff or a constable
39-16 of a specific county in this state is not defective if the writ was
39-17 properly executed within the county by the officer to whom the
39-18 direction to seize the estate was given.
39-19 Sec. 655. GUARDIAN TO SERVE PENDING APPEAL OF APPOINTMENT.
39-20 Pending an appeal from an order or judgment appointing a guardian,
39-21 an appointee shall continue to act as guardian and shall continue
39-22 the prosecution of a pending suit in favor of the guardianship.
39-23 Sec. 656. APPEAL BOND OF GUARDIAN. When a guardian appeals,
39-24 a bond is not required, unless the appeal personally concerns the
39-25 guardian, in which case the guardian must give the bond.
39-26 Sec. 657. BILL OF REVIEW. A person interested, including a
39-27 ward, by bill of review filed in the court in which a guardianship
40-1 proceeding took place, may have a decision, order, or judgment
40-2 rendered by the court, revised and corrected if an error is shown
40-3 on the decision, order, or judgment. A process or action under the
40-4 decision, order, or judgment is not stayed except by writ of
40-5 injunction. A bill of review may not be filed after two years have
40-6 elapsed from the date of the decision, order, or judgment. A
40-7 person with a disability has two years after the removal of the
40-8 person's respective disability to apply for a bill of review.
40-9 SUBPART G. LETTERS OF GUARDIANSHIP
40-10 Sec. 659. ISSUANCE OF LETTERS OF GUARDIANSHIP. (a) When a
40-11 person who is appointed guardian has qualified by taking the oath
40-12 and giving any bond required by law, the clerk shall issue to the
40-13 guardian a certificate under seal, stating the fact of the
40-14 appointment, of the qualification, and the date of the appointment
40-15 and qualification. The certificate issued by the clerk constitutes
40-16 letters of guardianship. The order of the court appointing the
40-17 guardian is effective on the issuance of letters of guardianship.
40-18 The order is evidence of the authority of the guardian to act
40-19 within the scope of the powers and duties set forth in the order.
40-20 (b) Letters of guardianship expire one year and 90 days
40-21 after the date of issuance unless renewed.
40-22 (c) The clerk shall renew letters of guardianship on the
40-23 receipt and approval by the court of the guardian's annual
40-24 accounting. If the guardian's annual accounting is disapproved,
40-25 the clerk may not issue further letters of guardianship to that
40-26 guardian relating to the ward or the ward's estate unless ordered
40-27 by the court.
41-1 Sec. 660. LETTERS OR CERTIFICATE MADE EVIDENCE. Letters of
41-2 guardianship or a certificate under seal of the clerk of the court
41-3 that granted the letters issued under Section 659 of this code is
41-4 sufficient evidence of the appointment and qualification of the
41-5 guardian and of the date of qualification.
41-6 Sec. 661. ISSUANCE OF NEW LETTERS. When letters of
41-7 guardianship have been destroyed or lost, the clerk shall issue new
41-8 letters that have the same force and effect as the original
41-9 letters. The clerk shall also issue any number of letters on
41-10 request of the person who holds the letters.
41-11 Sec. 662. RIGHTS OF THIRD PERSONS DEALING WITH GUARDIAN.
41-12 When a guardian who has qualified performs any act as guardian that
41-13 is in conformity with the guardian's authority and the law, the
41-14 guardian's act continues to be valid for all intents and purposes
41-15 in regard to the rights of an innocent purchaser of the property of
41-16 the guardianship estate who purchased the property from the
41-17 guardian for a valuable consideration, in good faith, and without
41-18 notice of any illegality in the title to the property, even if the
41-19 guardian's act or the authority under which the act was performed
41-20 may later be set aside, annulled, or declared invalid.
41-21 Sec. 663. VALIDATION OF CERTAIN LETTERS OF GUARDIANSHIP.
41-22 All presently existing letters of guardianship issued to a
41-23 nonresident guardian, with or without the procedure provided in
41-24 this subpart, in whole or in part, and with or without a notice or
41-25 citation required of resident guardians, are validated as of each
41-26 letter's date, insofar as the absence of the procedure, notice, or
41-27 citations is concerned. An otherwise valid conveyance, mineral
42-1 lease, or other act of a nonresident guardian qualified and acting
42-2 in connection with the letters of guardianship under supporting
42-3 orders of a county or probate court of this state are validated.
42-4 This section does not apply to any letters, conveyance, lease, or
42-5 other act of a nonresident guardian under this section if the
42-6 absence of the procedure, notice, or citation involving the
42-7 letters, conveyance, lease, or other act of the nonresident
42-8 guardian is an issue in a lawsuit pending in this state on
42-9 September 1, 1993.
42-10 SUBPART H. COMPENSATION, EXPENSES, AND COURT COSTS
42-11 Sec. 665. COMPENSATION OF GUARDIAN. (a) The court may
42-12 authorize compensation for a guardian serving as guardian of the
42-13 person alone from available funds of the ward's estate. The court
42-14 shall set the compensation in an amount not exceeding five percent
42-15 of the ward's income. In determining whether to authorize
42-16 compensation for a guardian under this section, the court shall
42-17 consider the ward's monthly income from all sources and whether the
42-18 ward receives medical assistance under Chapter 32, Human Resources
42-19 Code.
42-20 (b) The guardian of the estate is entitled to a fee of five
42-21 percent of the gross income of the ward's estate and five percent
42-22 of all money paid out of the estate on a court finding that the
42-23 guardian has taken care of and managed the estate in compliance
42-24 with the standards of this chapter. In this section, the term
42-25 "money paid out" does not include any money loaned, invested, or
42-26 paid over on the settlement of the guardianship. If the fee is an
42-27 unreasonably low amount, the court may authorize reasonable
43-1 compensation to a guardian for services as guardian of the estate.
43-2 The court, on application of an interested person or on its own
43-3 motion, may deny a fee authorized under this section in whole, or
43-4 in part, if:
43-5 (1) the court finds that the guardian has not
43-6 adequately performed the duties required of the guardian under this
43-7 chapter; or
43-8 (2) the guardian has been removed for cause.
43-9 Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be
43-10 reimbursed from the guardianship estate for all necessary and
43-11 reasonable expenses incurred in performing any duty as a guardian.
43-12 Sec. 667. EXPENSE ACCOUNT. All expense charges shall be:
43-13 (1) in writing, showing specifically each item of
43-14 expense and the date of the expense;
43-15 (2) verified by affidavit of the guardian;
43-16 (3) filed with the clerk and entered on the claim
43-17 docket; and
43-18 (4) acted on by the court in the same manner as other
43-19 claims against the guardianship estate.
43-20 Sec. 668. COSTS ADJUDGED AGAINST GUARDIAN. When costs are
43-21 incurred because a guardian neglects to perform a required duty or
43-22 if a guardian is removed for cause, the guardian and the sureties
43-23 on the guardian's bond are liable for:
43-24 (1) costs of removal and other additional costs
43-25 incurred that are not authorized expenditures under this chapter;
43-26 and
43-27 (2) reasonable attorney's fees incurred in removing
44-1 the guardian or in obtaining compliance regarding any statutory
44-2 duty the guardian has neglected.
44-3 Sec. 669. COSTS AGAINST GUARDIANSHIP. In a guardianship
44-4 matter, the cost of the proceeding, including the cost of the
44-5 guardian ad litem or court visitor, shall be paid out of the
44-6 guardianship estate, or, if the estate is insufficient to pay for
44-7 the cost of the proceeding, the cost of the proceeding shall be
44-8 paid out of the county treasury, and the judgment of the court
44-9 shall be issued accordingly.
44-10 SUBPART I. DUTY AND RESPONSIBILITY OF COURT
44-11 Sec. 671. JUDGE'S DUTY. (a) The court shall use reasonable
44-12 diligence to determine whether a guardian is performing all of the
44-13 duties required of the guardian that pertain to the guardian's
44-14 ward.
44-15 (b) The judge, at least annually, shall examine the
44-16 well-being of each ward of the court and the solvency of the bonds
44-17 of the guardians of the estates.
44-18 (c) If after examining the solvency of a guardian's bond
44-19 under this section a judge determines that the guardian's bond is
44-20 not sufficient to protect the ward or the ward's estate, the judge
44-21 shall require the guardian to execute a new bond.
44-22 (d) The judge shall notify the guardian and the sureties on
44-23 the bond as provided by law. If damage or loss results to a
44-24 guardianship or ward because of gross neglect of the judge to use
44-25 reasonable diligence in the performance of the judge's duty under
44-26 this section, the judge shall be liable on the judge's bond to
44-27 those damaged by the judge's neglect.
45-1 Sec. 672. ANNUAL DETERMINATION AS TO WHETHER GUARDIANSHIP
45-2 SHOULD BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in
45-3 which a guardianship proceeding is pending shall review annually
45-4 each guardianship to determine whether the guardianship should be
45-5 continued, modified, or terminated.
45-6 (b) In reviewing a guardianship as provided by Subsection
45-7 (a) of this section, a statutory probate court shall:
45-8 (1) review a report prepared by a court visitor under
45-9 Section 648 of this code; or
45-10 (2) conduct a hearing if necessary.
45-11 (c) In reviewing a guardianship as provided by Subsection
45-12 (a) of this section, a court that is not a statutory probate court
45-13 may use any appropriate method determined by the court according to
45-14 the court's caseload and the resources available to the court.
45-15 (d) A determination under this section must be in writing
45-16 and filed with the clerk.
45-17 SUBPART J. LIABILITY OF GUARDIAN FOR CONDUCT OF WARD
45-18 Sec. 673. LIABILITY. A person is not liable to a third
45-19 person solely because the person has been appointed guardian of a
45-20 ward under this chapter.
45-21 PART 3. APPOINTMENT AND
45-22 QUALIFICATION OF
45-23 GUARDIANS
45-24 SUBPART A. APPOINTMENT
45-25 Sec. 675. RIGHTS AND POWERS RETAINED BY WARD. An
45-26 incapacitated person for whom a guardian is appointed retains all
45-27 legal and civil rights and powers except those designated by court
46-1 order as legal disabilities by virtue of having been specifically
46-2 granted to the guardian.
46-3 Sec. 676. GUARDIANS OF MINORS. (a) Except as provided by
46-4 Section 670 of this code, the selection of a guardian for a minor
46-5 is governed by this section.
46-6 (b) If the parents live together, both parents are the
46-7 natural guardians of the person of the minor children by the
46-8 marriage, and one of the parents is entitled to be appointed
46-9 guardian of the children's estates. If the parents disagree as to
46-10 which parent should be appointed, the court shall make the
46-11 appointment on the basis of which parent is better qualified to
46-12 serve in that capacity. If one parent is dead, the survivor is the
46-13 natural guardian of the person of the minor children and is
46-14 entitled to be appointed guardian of their estates. The rights of
46-15 parents who do not live together are equal, and the guardianship of
46-16 their minor children shall be assigned to one or the other,
46-17 considering only the best interests of the children.
46-18 (c) In appointing a guardian for a minor orphan:
46-19 (1) if the last surviving parent did not appoint a
46-20 guardian, the nearest ascendant in the direct line of the minor is
46-21 entitled to guardianship of both the person and the estate of the
46-22 minor;
46-23 (2) if more than one ascendant exists in the same
46-24 degree in the direct line, one ascendant shall be appointed,
46-25 according to circumstances and considering the best interests of
46-26 the minor;
46-27 (3) if the minor has no ascendant in the direct line,
47-1 the nearest of kin shall be appointed, and if there are two or more
47-2 persons in the same degree of kinship, one shall be appointed,
47-3 according to circumstances and considering the best interests of
47-4 the minor; and
47-5 (4) if no relative of the minor is eligible to be
47-6 guardian, or if no eligible person applies to be guardian, the
47-7 court shall appoint a qualified person as guardian.
47-8 (d) The surviving parent of a minor may by will or written
47-9 declaration appoint any eligible person to be guardian of the
47-10 person of the parent's minor children after the death of the
47-11 parent. On compliance with this code, an eligible person is also
47-12 entitled to be appointed guardian of the children's estates after
47-13 the death of the parent.
47-14 Sec. 677. GUARDIANS OF PERSONS OTHER THAN MINORS. The court
47-15 shall appoint a guardian for a person other than a minor according
47-16 to the circumstances and considering the best interests of the
47-17 ward. If the court finds that two or more eligible persons are
47-18 equally entitled to be appointed guardian:
47-19 (1) the ward's spouse is entitled to the guardianship
47-20 in preference to any other person if the spouse is one of the
47-21 eligible persons;
47-22 (2) the eligible person nearest of kin to the ward is
47-23 entitled to the guardianship if the ward's spouse is not one of the
47-24 eligible persons; or
47-25 (3) the court shall appoint the eligible person who is
47-26 best qualified to serve as guardian if:
47-27 (A) the persons entitled to serve under
48-1 Subdivisions (1) and (2) of this section refuse to serve;
48-2 (B) two or more persons entitled to serve under
48-3 Subdivision (2) of this section are related in the same degree of
48-4 kinship to the ward; or
48-5 (C) neither the ward's spouse or any person
48-6 related to the ward is an eligible person.
48-7 Sec. 678. PRESUMPTION CONCERNING BEST INTEREST. It is
48-8 presumed not to be in the best interests of a ward to appoint a
48-9 person as guardian of the ward if the person has been finally
48-10 convicted of any sexual offense, sexual assault, aggravated
48-11 assault, aggravated sexual assault, injury to a child, abandoning
48-12 or endangering a child, or incest.
48-13 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES. (a)
48-14 A person other than an incapacitated person may designate by a
48-15 written declaration persons to serve as guardian of the person of
48-16 the declarant or the estate of the declarant if the declarant
48-17 becomes incapacitated. The declaration must be attested to by at
48-18 least two credible witnesses 14 years of age or older who are not
48-19 named as guardian or alternate guardian in the declaration.
48-20 (b) A declarant may, in the declaration, disqualify named
48-21 persons from serving as guardian of the declarant's person or
48-22 estate, and the persons named may not be appointed guardian under
48-23 any circumstances.
48-24 (c) The declaration must have attached a self-proving
48-25 affidavit signed by the declarant and the witnesses attesting to
48-26 the competence of the declarant and the execution of the
48-27 declaration. A properly executed and witnessed declaration and
49-1 affidavit are prima facie evidence that the declarant was competent
49-2 at the time the declarant executed the declaration and that the
49-3 guardian named in the declaration would serve the best interests of
49-4 the ward.
49-5 (d) The declaration and affidavit may be filed with the
49-6 court at any time after the application for appointment of a
49-7 guardian is filed and before a guardian is appointed. Unless the
49-8 court finds that the person designated in the declaration to serve
49-9 as guardian is disqualified or would not serve the best interests
49-10 of the ward, the court shall appoint the person as guardian in
49-11 preference to those otherwise entitled to serve as guardian under
49-12 this code. If the designated guardian does not qualify, is dead,
49-13 refuses to serve, resigns, or dies after being appointed guardian,
49-14 or is otherwise unavailable to serve as guardian, the court shall
49-15 appoint the next eligible designated alternate guardian named in
49-16 the declaration. If the guardian and all alternate guardians do
49-17 not qualify, are dead, refuse to serve, or later die or resign, the
49-18 court shall appoint another person to serve as otherwise provided
49-19 by this code.
49-20 (e) The declarant may revoke a declaration in any manner
49-21 provided for the revocation of a will under Section 63 of this
49-22 code, including the subsequent reexecution of the declaration in
49-23 the manner required for the original declaration.
49-24 (f) If a declarant designates the declarant's spouse to
49-25 serve as guardian under this section, and the declarant is
49-26 subsequently divorced from that spouse before a guardian is
49-27 appointed, the provision of the declaration designating the spouse
50-1 has no effect.
50-2 (g) A declaration and affidavit may be in any form adequate
50-3 to clearly indicate the declarant's intention to designate a
50-4 guardian. The following forms may, but need not, be used:
50-5 DECLARATION OF GUARDIAN IN THE EVENT OF
50-6 LATER INCAPACITY OR NEED OF GUARDIAN
50-7 I, _____________, make this Declaration of Guardian, to
50-8 operate if the need for a guardian for me later arises.
50-9 1. I designate ____________ to serve as guardian of my
50-10 person, ____________ as first alternate guardian of my person,
50-11 ________________ as second alternate guardian of my person, and
50-12 ____________ as third alternate guardian of my person.
50-13 2. I designate ____________ to serve as guardian of my
50-14 estate, ____________ as first alternate guardian of my estate,
50-15 ____________ as second alternate guardian of my estate, and
50-16 ____________ as third alternate guardian of my estate.
50-17 3. If any guardian or alternate guardian dies, does not
50-18 qualify, or resigns, the next named alternate guardian becomes my
50-19 guardian.
50-20 4. I expressly disqualify the following persons from serving
50-21 as guardian of my person: ____________, ____________, and
50-22 ____________.
50-23 5. I expressly disqualify the following persons from serving
50-24 as guardian of my estate: ____________, ____________, and
50-25 ____________.
50-26 Signed this ____ day of __________, 19__.
50-27 ___________________
51-1 Declarant
51-2 ___________________ ___________________
51-3 Witness Witness
51-4 SELF-PROVING AFFIDAVIT
51-5 Before me, the undersigned authority, on this date personally
51-6 appeared the declarant, and ____________ and ____________ as
51-7 witnesses, and all being duly sworn, the declarant said that the
51-8 above instrument was his or her Declaration of Guardian and that
51-9 the declarant had made and executed it for the purposes expressed
51-10 in the declaration. The witnesses declared to me that they are
51-11 each 14 years of age or older, that they saw the declarant sign the
51-12 declaration, that they signed the declaration as witnesses, and
51-13 that the declarant appeared to them to be of sound mind.
51-14 ___________________
51-15 Declarant
51-16 ___________________ ____________________
51-17 Affiant Affiant
51-18 Subscribed and sworn to before me by the above named
51-19 declarant and affiants on this ____ day of __________, 19__.
51-20 ________________________
51-21 Notary Public in and for
51-22 the State of Texas
51-23 My Commission expires:
51-24 ________________________
51-25 Sec. 680. SELECTION OF GUARDIAN BY MINOR. (a) When an
51-26 application is filed for the guardianship of the person or estate,
51-27 or both, of a minor at least 14 years of age, the minor, by writing
52-1 filed with the clerk, may choose the guardian if the court approves
52-2 the choice and finds that the choice is in the best interest of the
52-3 minor.
52-4 (b) A minor at least 14 years of age may select another
52-5 guardian of either the minor's person or estate, or both, if the
52-6 minor has a guardian appointed by the court or the minor has a
52-7 guardian appointed by will or written declaration of the parent of
52-8 the minor and that guardian dies, resigns, or is removed from
52-9 guardianship. If the court is satisfied that the person selected
52-10 is suitable and competent and that the appointment of the person is
52-11 in the best interest of the minor, it shall make the appointment
52-12 and revoke the letters of guardianship of the former guardian. The
52-13 minor shall make the selection by filing an application in open
52-14 court in person or by attorney.
52-15 Sec. 681. PERSONS INELIGIBLE TO BE GUARDIANS. A person may
52-16 not be appointed guardian if the person is:
52-17 (1) a minor;
52-18 (2) a person whose conduct is notoriously bad;
52-19 (3) an incapacitated person;
52-20 (4) a person who is a party or whose parent is a party
52-21 to a lawsuit concerning or affecting the welfare of the proposed
52-22 ward, unless the court:
52-23 (A) determines that the lawsuit claim of the
52-24 person who has applied to be appointed guardian is not in conflict
52-25 with the lawsuit claim of the proposed ward;
52-26 (B) appoints a guardian ad litem to represent
52-27 the interests of the proposed ward throughout the litigation of the
53-1 ward's lawsuit claim;
53-2 (5) a person indebted to the proposed ward unless the
53-3 person pays the debt before appointment;
53-4 (6) a person asserting a claim adverse to the proposed
53-5 ward or the proposed ward's property, real or personal;
53-6 (7) a person who, because of inexperience, lack of
53-7 education, or other good reason, is incapable of properly and
53-8 prudently managing and controlling the ward or the ward's estate;
53-9 (8) a person, institution, or corporation found
53-10 unsuitable by the court;
53-11 (9) a person disqualified in a declaration made under
53-12 Section 679 of this code; or
53-13 (10) a nonresident person who has not filed with the
53-14 court the name of a resident agent to accept service of process in
53-15 all actions or proceedings relating to the guardianship.
53-16 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
53-17 proceeding for the appointment of a guardian by filing a written
53-18 application in a court having jurisdiction and venue. The
53-19 application must be sworn to by the applicant and state:
53-20 (1) the name, sex, date of birth, and address of the
53-21 proposed ward;
53-22 (2) the name, relationship, and address of the person
53-23 the applicant desires to have appointed as guardian;
53-24 (3) the social security number of the proposed ward
53-25 and of the person the applicant desires to have appointed as
53-26 guardian;
53-27 (4) whether guardianship of the person or estate, or
54-1 both, is sought;
54-2 (5) the nature and degree of the alleged incapacity,
54-3 the specific areas of protection and assistance requested, and the
54-4 limitation of rights requested to be included in the court's order
54-5 of appointment;
54-6 (6) the facts requiring that a guardian be appointed
54-7 and the interest of the applicant in the appointment;
54-8 (7) the nature and description of any guardianship of
54-9 any kind existing for the proposed ward in this or any other state;
54-10 (8) the name and address of any person or institution
54-11 having the care and custody of the proposed ward;
54-12 (9) the approximate value and description of the
54-13 proposed ward's property, including any compensation, pension,
54-14 insurance, or allowance to which the proposed ward may be entitled;
54-15 (10) the requested term, if known, of the
54-16 guardianship;
54-17 (11) the name and address of any person whom the
54-18 applicant knows to hold a power of attorney signed by the proposed
54-19 ward and a description of the type of power of attorney;
54-20 (12) if the proposed ward is a minor, the names of the
54-21 parents and next of kin of the proposed ward and whether either or
54-22 both of the parents are deceased;
54-23 (13) if the proposed ward is a minor, whether the
54-24 minor was the subject of a legal or conservatorship proceeding
54-25 within the preceding two-year period and, if so, the court
54-26 involved, the nature of the proceeding, and the final disposition,
54-27 if any, of the proceeding;
55-1 (14) if the proposed ward is 60 years of age or older,
55-2 the names and addresses, to the best of the applicant's knowledge,
55-3 of the proposed ward's spouse, siblings, and children, or, if there
55-4 is no spouse, sibling, or child, the names and addresses of the
55-5 proposed ward's next of kin;
55-6 (15) if the proposed ward is a missing person:
55-7 (A) the last known residence of the missing
55-8 person;
55-9 (B) the name of the executive department of the
55-10 United States reporting the proposed ward as a missing person, the
55-11 date of the report, and the last known whereabouts of the missing
55-12 person; and
55-13 (C) the names and addresses of the missing
55-14 person's spouse, children, and parents, or, if there is no spouse,
55-15 child, or parent, the names and addresses of the missing person's
55-16 next of kin;
55-17 (16) facts showing that the court has venue over the
55-18 proceeding; and
55-19 (17) if applicable, that the person whom the applicant
55-20 desires to have appointed as a guardian is a private professional
55-21 guardian who has complied with the requirements of Section 126 of
55-22 this code.
55-23 Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
55-24 If a court has probable cause to believe that a person domiciled or
55-25 found in the county in which the court is located is an
55-26 incapacitated person, and the person does not have a guardian in
55-27 this state, the court shall appoint an attorney ad litem to
56-1 investigate and file an application for the appointment of a
56-2 guardian of the person or estate, or both, of the person believed
56-3 to be incapacitated.
56-4 Sec. 684. FINDINGS REQUIRED. (a) Before appointing a
56-5 guardian, the court must find that:
56-6 (1) the proposed ward is an incapacitated person;
56-7 (2) the court has venue of the case;
56-8 (3) the person to be appointed guardian is eligible to
56-9 act as guardian and is entitled to appointment, or, if no eligible
56-10 person entitled to appointment applies, the person appointed is a
56-11 proper person to act as guardian;
56-12 (4) the rights of persons or property will be
56-13 protected by the appointment of a guardian;
56-14 (5) if a guardian is appointed for a minor, the
56-15 guardianship is not created for the primary purpose of enabling the
56-16 minor to establish residency for enrollment in a school or school
56-17 district for which the minor is not otherwise eligible for
56-18 enrollment; and
56-19 (6) if the guardian is appointed for a missing person,
56-20 the person was reported missing by an executive department of the
56-21 United States at least six months earlier than the date of the
56-22 filing of the application and currently is missing.
56-23 (b) The court may not grant an application to create a
56-24 guardianship unless the applicant proves each element required by
56-25 this code. A determination of incapacity of an adult proposed
56-26 ward, other than a missing person or a person who must have a
56-27 guardian appointed to receive funds due the person from any
57-1 governmental source, must be evidenced by recurring acts or
57-2 occurrences within the preceding six-month period and not by
57-3 isolated instances of negligence or bad judgment.
57-4 (c) A court may not appoint a guardian of the estate of a
57-5 minor when a payment of claims is made under Section 887 of this
57-6 code.
57-7 (d) A certificate of the executive head or a representative
57-8 of the bureau, department, or agency of the government, to the
57-9 effect that the appointment of a guardian is a condition precedent
57-10 to the payment of any funds due the proposed ward from that
57-11 governmental entity, is prima facie evidence of the necessity for
57-12 the appointment of a guardian.
57-13 Sec. 685. HEARING FOR APPOINTMENT OF GUARDIAN; RIGHT TO JURY
57-14 TRIAL. (a) A proposed ward other than a missing person must be
57-15 present at a hearing to appoint a guardian unless the court, on the
57-16 record, determines that a personal appearance is not in the
57-17 person's best interests. The court may close the hearing if the
57-18 proposed ward or the proposed ward's counsel requests a closed
57-19 hearing.
57-20 (b) The proposed ward is entitled, on request, to a jury
57-21 trial.
57-22 (c) At the hearing, the court shall:
57-23 (1) inquire into the ability of any allegedly
57-24 incapacitated adult person to feed, clothe, and shelter himself or
57-25 herself, to care for the individual's own physical health, and to
57-26 manage the individual's property or financial affairs;
57-27 (2) ascertain the age of any proposed ward who is a
58-1 minor;
58-2 (3) inquire into the governmental reports for any
58-3 missing person or person who must have a guardian appointed to
58-4 receive funds due the person from any governmental source; and
58-5 (4) inquire into the qualifications, abilities, and
58-6 capabilities of the person seeking to be appointed guardian.
58-7 Sec. 686. USE OF RECORDS IN HEARING TO APPOINT GUARDIAN.
58-8 (a) Before a hearing may be held for the appointment of a
58-9 guardian, current and relevant medical, psychological, and
58-10 intellectual testing records of the proposed ward must be filed
58-11 with the court unless:
58-12 (1) the proposed ward is a minor, a missing person, or
58-13 a person who must have a guardian appointed to receive funds due
58-14 the person from any governmental source; or
58-15 (2) the court makes a finding on the record that no
58-16 current or relevant records exist and examining the proposed ward
58-17 for the purpose of creating the records is impractical.
58-18 (b) Current medical, psychological, and intellectual testing
58-19 records are a sufficient basis for a determination of guardianship.
58-20 (c) Medical, psychological, and intellectual testing records
58-21 filed with the application must be based on examinations conducted
58-22 during the 90-day period before the date the application is filed.
58-23 (d) The findings and recommendations contained in the
58-24 medical, psychological, and intellectual testing records are not
58-25 binding on the court.
58-26 Sec. 687. EXAMINATIONS AND REPORTS. (a) If the medical,
58-27 psychological, and intellectual testing records of the proposed
59-1 ward are not filed with the application for guardianship, the court
59-2 shall appoint the necessary physicians and mental health
59-3 professionals to examine the person and file all necessary reports
59-4 with the court.
59-5 (b) A physician appointed by the court shall file with the
59-6 court a report that:
59-7 (1) describes the nature and degree of incapacity,
59-8 including the medical history if reasonably available;
59-9 (2) provides a medical prognosis specifying the
59-10 estimated severity of the incapacity;
59-11 (3) states how or in what manner the proposed ward's
59-12 ability to make or communicate responsible decisions concerning
59-13 himself or herself is affected by the person's physical or mental
59-14 health;
59-15 (4) states whether any current medication affects the
59-16 demeanor of the proposed ward or the proposed ward's ability to
59-17 participate fully in a court proceeding;
59-18 (5) describes the precise physical and mental
59-19 conditions underlying a diagnosis of senility, if applicable; and
59-20 (6) includes any other information required by the
59-21 court.
59-22 (c) If the basis of the proposed ward's alleged incapacity
59-23 is mental retardation, the proposed ward shall be examined by a
59-24 physician or psychologist licensed in this state or certified by
59-25 the Texas Department of Mental Health and Mental Retardation to
59-26 perform the examination, unless there is written documentation
59-27 filed with the court that shows the proposed ward has been examined
60-1 according to the rules adopted by the department not earlier than
60-2 six months before the date of a hearing to appoint a guardian for
60-3 the proposed ward. The physician or psychologist shall conduct the
60-4 examination according to the rules adopted by the department and
60-5 shall submit written findings and recommendations to the court.
60-6 Sec. 688. PAYMENT FOR PROFESSIONAL SERVICES. The court
60-7 shall order the payment of a fee set by the court as compensation
60-8 to the attorneys, mental health professionals, and interpreters
60-9 appointed under Sections 646 and 687 of this code, as applicable,
60-10 to be taxed as costs in the case. If after examining the proposed
60-11 ward's assets the court determines the proposed ward is unable to
60-12 pay for services provided by an attorney, a mental health
60-13 professional, or an interpreter appointed under Sections 646 and
60-14 687 of this code, as applicable, the county is responsible for the
60-15 cost of those services.
60-16 Sec. 689. PREFERENCE OF WARD. Before appointing a guardian,
60-17 the court shall make a reasonable effort to question the
60-18 incapacitated person concerning the person's preference of the
60-19 person to be appointed guardian and, to the extent not inconsistent
60-20 with other provisions of this chapter, shall give due consideration
60-21 to the preference indicated by the incapacitated person.
60-22 Sec. 690. ONLY ONE PERSON APPOINTED GUARDIAN. Only one
60-23 person may be appointed as guardian of the person or estate, but
60-24 one person may be appointed guardian of the person and another of
60-25 the estate, if it is to the advantage of the ward. Nothing in this
60-26 section prohibits the joint appointment of a husband and wife, or
60-27 of coguardians appointed under the laws of a jurisdiction other
61-1 than this state.
61-2 Sec. 691. AGENCY AS LAST RESORT. Except as a last resort,
61-3 the court may not appoint as guardian the Texas Department of
61-4 Mental Health and Mental Retardation, the Texas Department of Human
61-5 Services, a community mental health and mental retardation center,
61-6 or any other agency, public or private, that is directly providing
61-7 services to the incapacitated person.
61-8 Sec. 692. ORDER APPOINTING GUARDIAN. The order of the court
61-9 appointing a guardian must specify:
61-10 (1) the name of the person appointed;
61-11 (2) the name of the ward;
61-12 (3) whether the guardian is of the person or the
61-13 estate, or of both, of the ward;
61-14 (4) the amount of any bond required;
61-15 (5) if it is a guardianship of the estate and the
61-16 court deems an appraisal is necessary, one or more but not more
61-17 than three disinterested persons to appraise the estate and to
61-18 return the appraisement to the court; and
61-19 (6) that the clerk will issue letters of guardianship
61-20 to the person appointed when the person has qualified according to
61-21 law.
61-22 Sec. 693. ORDER OF COURT. (a) If it is found that an adult
61-23 person possesses the capacity to care for himself or herself and to
61-24 manage the individual's property as would a reasonably prudent
61-25 person, the court shall dismiss the application for guardianship.
61-26 (b) If it is found that the proposed ward is totally without
61-27 capacity as provided by this code to care for himself or herself
62-1 and to manage the individual's property, the court shall include
62-2 that determination as a finding of fact in its final order in the
62-3 proceeding, and the court may appoint a guardian of the
62-4 individual's person or estate, or both, with full authority over
62-5 the incapacitated person except as provided by law.
62-6 (c) If it is found that the person lacks the capacity to do
62-7 some, but not all, of the tasks necessary to care for himself or
62-8 herself or to manage the individual's property, the court may
62-9 appoint a guardian with limited powers and permit the individual to
62-10 care for himself or herself or to manage the individual's property
62-11 commensurate with the individual's ability.
62-12 (d) An order appointing a guardian must contain findings of
62-13 fact and specify:
62-14 (1) the information required by Section 692 of this
62-15 code;
62-16 (2) the properties of the person that the guardian is
62-17 entitled to possess and manage, with a description of the
62-18 properties sufficient to identify them;
62-19 (3) the debts, rentals, wages, or other claims due the
62-20 person that the guardian is entitled to collect, or file suit to
62-21 collect, and after collection to possess and manage;
62-22 (4) the contractual or other obligations that the
62-23 guardian may incur on behalf of the person;
62-24 (5) the claims against the person that the guardian
62-25 may pay, compromise, or defend, if necessary;
62-26 (6) the specific powers, limitations, or duties of the
62-27 guardian with respect to the care of the person or the management
63-1 of the person's property by the guardian; and
63-2 (7) if necessary, the amount of funds from the corpus
63-3 of the person's estate the court will allow the guardian to expend
63-4 for the education and maintenance of the person under Section 776
63-5 of this code.
63-6 (e) An order appointing a guardian may not duplicate or
63-7 conflict with the powers and duties of any other guardian.
63-8 Sec. 694. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
63-9 otherwise discharged as provided by law, a guardian remains in
63-10 office until the estate is closed.
63-11 (b) The guardianship shall be settled and closed when the
63-12 incapacitated person:
63-13 (1) dies and, if the person was married, the person's
63-14 spouse qualifies as survivor in community;
63-15 (2) is found by the court to have full capacity to
63-16 care for himself or herself and to manage the person's property;
63-17 (3) is no longer a minor;
63-18 (4) returns to the United States, if the person was a
63-19 missing person and the court grants the motion of any interested
63-20 person to vacate the original order of guardianship; or
63-21 (5) no longer must have a guardian appointed to
63-22 receive funds due the person from any governmental source.
63-23 (c) An order appointing a guardian or a successor guardian
63-24 may specify a period of not more than one year during which a
63-25 petition for adjudication that the incapacitated person no longer
63-26 requires the guardianship may not be filed without special leave.
63-27 (d) Except as provided by Subsection (c) of this section, a
64-1 ward or any person interested in the ward's welfare may petition
64-2 the court for an order:
64-3 (1) finding that the ward no longer needs the
64-4 guardianship and ordering that the guardian resign or be removed;
64-5 (2) finding that the ward lacks the capacity to do
64-6 some or all of the tasks necessary to care for himself or herself
64-7 or to manage the ward's property and granting additional powers or
64-8 duties to the guardian with respect to the care of the ward or the
64-9 management of the ward's property by the guardian; or
64-10 (3) finding that the ward has regained the capacity to
64-11 do some, but not all, of the tasks necessary to care for himself or
64-12 herself or to manage the ward's property and:
64-13 (A) limiting the powers or duties of the
64-14 guardian with respect to the care of the ward or the management of
64-15 the ward's property by the guardian; and
64-16 (B) permitting the ward to care for himself or
64-17 herself or to manage the ward's property commensurate with the
64-18 ward's ability.
64-19 (e) A request for an order under this section may be made by
64-20 informal letter to the court. A person who knowingly interferes
64-21 with the transmission of the request to the court may be adjudged
64-22 guilty of contempt of court.
64-23 (f) If a nonresident guardian of a nonresident ward
64-24 qualifies as guardian under this chapter, the guardianship of any
64-25 resident guardian may be terminated.
64-26 Sec. 695. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) At any
64-27 hearing under this chapter the court may appoint one or more
65-1 successor guardians to assume the position of guardian without
65-2 additional judicial proceedings on the failure to qualify, death,
65-3 incapacity, or resignation of the preceding guardian. The guardian
65-4 serving at the time a successor guardian is appointed shall furnish
65-5 each successor guardian with a copy of the court order establishing
65-6 or modifying the initial guardianship and a copy of the order
65-7 appointing the successor guardian. A successor guardian who
65-8 assumes the position of guardian without a court proceeding shall
65-9 notify the court having jurisdiction of the guardianship of the
65-10 change in guardian not later than the 11th day after the date the
65-11 successor guardian assumes the position of guardian.
65-12 (b) Unless provision for a successor is made under
65-13 Subsection (a) of this section, if a guardian dies, resigns, or is
65-14 removed, the court may, on application and on service of notice as
65-15 directed by the court, appoint a successor guardian.
65-16 (c) A successor guardian has the powers and rights and is
65-17 subject to all of the duties of the preceding guardian.
65-18 Sec. 696. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
65-19 court may not appoint a private professional guardian to serve as a
65-20 guardian or permit a private professional guardian to continue to
65-21 serve as a guardian under this code if the private professional
65-22 guardian has not complied with the requirements of Section 697 of
65-23 this code.
65-24 Sec. 697. REGISTRATION OF PRIVATE PROFESSIONAL GUARDIANS.
65-25 (a) A private professional guardian must apply annually to the
65-26 clerk of the county having venue over the proceeding for the
65-27 appointment of a guardian for certification. The application must
66-1 include a sworn statement containing the following information
66-2 concerning a private professional guardian or a person who
66-3 represents or plans to represent the interests of a ward as a
66-4 guardian on behalf of the private professional guardian:
66-5 (1) educational background and professional
66-6 experience;
66-7 (2) three or more professional references;
66-8 (3) the names of all of the wards the private
66-9 professional guardian or person is or will be serving as a
66-10 guardian;
66-11 (4) the aggregate fair market value of the property of
66-12 all wards that is being or will be managed by the private
66-13 professional guardian or person;
66-14 (5) place of residence, business address, and business
66-15 telephone number; and
66-16 (6) whether the private professional guardian or
66-17 person has ever been removed as a guardian by the court or resigned
66-18 as a guardian in a particular case, and, if so, a description of
66-19 the circumstances causing the removal or resignation, and the style
66-20 of the suit, the docket number, and the court having jurisdiction
66-21 over the proceeding.
66-22 (b) The application must be accompanied by a nonrefundable
66-23 fee set by the clerk in an amount necessary to cover the cost of
66-24 administering this section.
66-25 (c) The term of the certification begins on the date that
66-26 the requirements are met and extends through December 31 of the
66-27 initial year. After the initial year of certification, the term of
67-1 the certification begins on January 1 and ends on December 31 of
67-2 each year. A renewal application must be completed during December
67-3 of the year preceding the year for which the renewal is requested.
67-4 (d) The clerk shall bring the information received under
67-5 this section to the judge's attention for review. The judge shall
67-6 use the information only in determining whether to appoint, remove,
67-7 or continue the appointment of a private professional guardian.
67-8 Sec. 698. ACCESS TO CRIMINAL HISTORY RECORDS. (a) The
67-9 clerk of the county having venue over the proceeding for the
67-10 appointment of a guardian shall obtain criminal history record
67-11 information that is maintained by the Department of Public Safety
67-12 or the Federal Bureau of Investigation identification division
67-13 relating to a private professional guardian or a person who
67-14 represents or plans to represent the interests of a ward as a
67-15 guardian on behalf of the private professional guardian.
67-16 (b) The criminal history record information obtained under
67-17 this section is for the exclusive use of the court and is
67-18 privileged and confidential. The criminal history record
67-19 information may not be released or otherwise disclosed to any
67-20 person or agency except on court order or consent of the person
67-21 being investigated. The clerk may destroy the criminal history
67-22 information records after the records are used for the purposes
67-23 authorized by this section.
67-24 (c) The court shall use the information obtained under this
67-25 section only in determining whether to appoint, remove, or continue
67-26 the appointment of a private professional guardian.
67-27 (d) A person commits an offense if the person releases or
68-1 discloses any information received under this section without the
68-2 authorization prescribed by Subsection (b) of this section. An
68-3 offense under this subsection is a Class A misdemeanor.
68-4 (e) The clerk may charge a reasonable fee sufficient to
68-5 recover the costs of obtaining criminal history information records
68-6 authorized by Subsection (a) of this section.
68-7 SUBPART B. QUALIFICATION
68-8 Sec. 699. HOW GUARDIANS QUALIFY. A guardian is deemed to
68-9 have duly qualified when the guardian has taken and filed the oath
68-10 required under Section 700 of this code, has made the required
68-11 bond, and has filed it with the clerk, and has the bond approved by
68-12 the judge. A guardian who is not required to make bond, is deemed
68-13 to have duly qualified when the guardian has taken and filed the
68-14 required oath.
68-15 Sec. 700. OATH OF GUARDIAN. The guardian shall take an oath
68-16 to discharge faithfully the duties of guardian for the person or
68-17 estate, or both, of a ward.
68-18 Sec. 701. TIME FOR TAKING OATH AND GIVING BOND. The oath of
68-19 a guardian may be taken and subscribed, or the bond of a guardian
68-20 may be given and approved, at any time before the expiration of the
68-21 20th day after the date of the order granting letters of
68-22 guardianship, or before the letters have been revoked for a failure
68-23 to qualify within the time allowed. An oath may be taken before
68-24 any person authorized to administer oaths under the laws of this
68-25 state.
68-26 Sec. 702. BOND OF GUARDIAN OF THE PERSON. (a) Except as
68-27 provided by Subsections (b) and (c) of this section, a guardian of
69-1 the person is required to give bond.
69-2 (b) A bond is not required to be given by a guardian that is
69-3 a corporate fiduciary, as defined by Section 601(5) of this code.
69-4 (c) When a will that is made by a surviving parent and is
69-5 probated in a court in this state directs that the guardian
69-6 appointed in the will serve without bond, the court finding that
69-7 the person is qualified shall issue letters of guardianship to the
69-8 person named to be appointed guardian in the will without
69-9 requirement of bond.
69-10 Sec. 703. BOND OF GUARDIAN OF THE ESTATE. (a) Except when
69-11 bond is not required under this chapter, before being issued
69-12 letters of guardianship of estates, the recipient of letters shall
69-13 give a bond that is conditioned as required by law and that is
69-14 payable to the judge of the county in which the guardianship
69-15 proceedings are pending or to the judge's successors in office. A
69-16 bond of the guardian of the estate must have the written approval
69-17 of either of the judges in the judge's official capacity and shall
69-18 be executed and approved in accordance with Subsections (b)-(q) of
69-19 this section.
69-20 (b) The judge shall set the penalty of the bond in an amount
69-21 that is sufficient to protect the guardianship and its creditors,
69-22 as provided by this chapter.
69-23 (c) If a bond is or will be required of a guardian of an
69-24 estate, the court, before setting the penalty of the bond, shall
69-25 hear evidence and determine:
69-26 (1) the amount of cash on hand and where deposited,
69-27 and the amount of cash estimated to be needed for administrative
70-1 purposes, including the operation of a business, factory, farm, or
70-2 ranch owned by the guardianship estate, and administrative expenses
70-3 for one year;
70-4 (2) the revenue anticipated to be received in the
70-5 succeeding 12 months from dividends, interest, rentals, or use of
70-6 real or personal property belonging to the guardianship estate and
70-7 the aggregate amount of any installments or periodic payments to be
70-8 collected;
70-9 (3) the estimated value of certificates of stock,
70-10 bonds, notes, or securities of the ward, the name of the depository
70-11 in which the stocks, bonds, notes, or securities of the ward are
70-12 held for safekeeping, the face value of life insurance or other
70-13 policies payable to the person on whose guardianship administration
70-14 is sought or to the person's estate, and other personal property
70-15 that is owned by the guardianship, or by a person with a
70-16 disability; and
70-17 (4) the estimated amount of debts due and owing by the
70-18 ward.
70-19 (d) The judge shall set the penalty of the bond in an
70-20 amount equal to the estimated value of all personal property
70-21 belonging to the ward, with an additional amount to cover revenue
70-22 anticipated to be derived during the succeeding 12 months from
70-23 interest, dividends, collectible claims, the aggregate amount of
70-24 any installments or periodic payments exclusive of income derived
70-25 or to be derived from federal social security payments, and rentals
70-26 for use of real and personal property, provided that the penalty of
70-27 the original bond shall be reduced in proportion to the amount of
71-1 cash or value of securities or other assets authorized or required
71-2 to be deposited or placed in safekeeping by court order, or
71-3 voluntarily made by the guardian or by the sureties on the bond of
71-4 the guardian as provided in Subsections (f) and (g) of this
71-5 section.
71-6 (e) If the court considers it to be in the best interests of
71-7 the ward, the court may require that the guardian and the corporate
71-8 or personal sureties on the bond of the guardian of the ward agree
71-9 to deposit any or all cash and safekeeping of other assets of the
71-10 guardianship estate in a domestic state or national bank, trust
71-11 company, savings and loan association, or other domestic corporate
71-12 depository, duly incorporated and qualified to act as a national
71-13 bank, trust company, savings and loan association, or other
71-14 domestic corporate depository under the laws of this state or of
71-15 the United States, and, if the depository is otherwise proper, the
71-16 court may require the deposit to be made in a manner so as to
71-17 prevent the withdrawal of the money or other assets in the
71-18 guardianship estate without the written consent of the surety or on
71-19 court order made on the notice to the surety. An agreement made by
71-20 a guardian and the sureties on the bond of the guardian under this
71-21 section does not release from liability or change the liability of
71-22 the principal or sureties as established by the terms of the bond.
71-23 (f) Cash, securities, or other personal assets of a ward
71-24 that a ward is entitled to receive may, and if it is deemed by the
71-25 court in the best interests of the ward shall, be deposited or
71-26 placed in safekeeping in one or more of the depositories described
71-27 in this section on the terms prescribed by the court. The court in
72-1 which the guardianship proceeding is pending, on its own motion or
72-2 on written application of the guardian or of any other person
72-3 interested in the ward, may authorize or require additional assets
72-4 of the guardianship estate then on hand or as they accrue during
72-5 the pendency of the guardianship proceeding to be deposited or held
72-6 in safekeeping as provided by this section. The amount of the
72-7 guardian's bond shall be reduced in proportion to the cash
72-8 deposited or the value of the securities or other assets placed in
72-9 safekeeping. Cash that is deposited, securities or other assets
72-10 held in safekeeping, or portions of the cash, securities, or other
72-11 assets held in safekeeping may be withdrawn from a depository only
72-12 on court order. The bond of the guardian shall be increased in
72-13 proportion to the amount of cash or the value of securities or
72-14 other assets that are authorized to be withdrawn.
72-15 (g) In lieu of giving a surety or sureties on a bond that is
72-16 required of the guardian, or for purposes of reducing the amount of
72-17 the bond, the guardian of an estate may deposit out of the
72-18 guardian's own assets cash or securities that are acceptable to the
72-19 court with a domestic state or national bank, trust company,
72-20 savings and loan association, or other domestic corporate
72-21 depository or with any other corporate depository approved by the
72-22 court. If the deposit is otherwise proper, the deposit must be
72-23 equal in amount or value to the amount of the bond required or the
72-24 bond shall be reduced by the value of assets that are deposited.
72-25 (h) The depository shall issue a receipt for a deposit in
72-26 lieu of a surety showing the amount of cash or, if securities, the
72-27 amount and description of the securities and agreeing not to
73-1 disburse or deliver the cash or securities except on receipt of a
73-2 certified copy of an order of the court in which the proceeding is
73-3 pending. The receipt must be attached to the guardian's bond and
73-4 be delivered to and filed by the county clerk after the receipt is
73-5 approved by the judge.
73-6 (i) The amount of cash or securities on deposit may be
73-7 increased or decreased by court order from time to time as the
73-8 interests of the guardianship shall require.
73-9 (j) A cash or security deposit in lieu of a surety on the
73-10 bond may be withdrawn or released only on order of a court that has
73-11 jurisdiction.
73-12 (k) A creditor has the same rights against the guardian and
73-13 the deposits as are provided for recovery against sureties on a
73-14 bond.
73-15 (l) The court on its own motion or on written application by
73-16 the guardian or any other person interested in the guardianship may
73-17 require that the guardian give adequate bond in lieu of the deposit
73-18 or may authorize withdrawal of the deposit and substitution of a
73-19 bond with sureties on the bond. In either case, the guardian shall
73-20 file a sworn statement showing the condition of the guardianship.
73-21 The guardian is subject to removal as in other cases if the
73-22 guardian does not file the sworn statement before the 21st day
73-23 after the guardian is personally served with notice of the filing
73-24 of the application or before the 21st day after the date the court
73-25 enters its motion. The deposit may not be released or withdrawn
73-26 until the court is satisfied as to the condition of the
73-27 guardianship estate, determines the amount of bond, and receives
74-1 and approves the bond.
74-2 (m) On the closing of a guardianship, a deposit or a portion
74-3 of a deposit that remains on hand, whether of the assets of the
74-4 guardian, the guardianship, or surety, shall be released by court
74-5 order and paid to the person entitled to the assets. A writ of
74-6 attachment or garnishment does not lie against the deposit except
74-7 as to claims of creditors of the guardianship being administered or
74-8 of persons interested in the guardianship, including distributees
74-9 and wards, and only if the court has ordered distribution, and only
74-10 to the extent of the ordered distribution.
74-11 (n) The surety on the bond may be an authorized corporate or
74-12 personal surety.
74-13 (o) When the bond is more than $50,000, the court may
74-14 require that the bond be signed by two or more authorized corporate
74-15 sureties or by one corporate surety and two or more good and
74-16 sufficient personal sureties. The guardianship shall pay the cost
74-17 of a bond with corporate sureties.
74-18 (p) If the sureties are natural persons, there may not be
74-19 less than two sureties, each of whom shall make affidavit in the
74-20 manner prescribed by this chapter. The judge must be satisfied
74-21 that each surety owns property in this state, over and above that
74-22 exempt by law, sufficient to qualify as a surety as required by
74-23 law. Except as otherwise provided by law, only one surety is
74-24 required if the surety is an authorized corporate surety. A
74-25 personal surety, instead of making an affidavit or creating a lien
74-26 on specific real estate when an affidavit or lien is required, may
74-27 deposit the personal surety's own cash or securities in the same
75-1 manner as a guardian in lieu of pledging real property as security,
75-2 subject to the provisions covering the deposits when made by
75-3 guardians.
75-4 (q) If the guardian is a temporary guardian, the judge shall
75-5 set the amount of the bond.
75-6 (r) The provisions of this section relating to the deposit
75-7 of cash and safekeeping of securities cover, as far as they may
75-8 apply, the orders entered by the court when:
75-9 (1) real or personal property of a guardianship has
75-10 been authorized to be sold or rented;
75-11 (2) money is borrowed from the guardianship;
75-12 (3) real property, or an interest in real property,
75-13 has been authorized to be leased for mineral development or made
75-14 subject to unitization;
75-15 (4) the general bond has been found insufficient; or
75-16 (5) money is borrowed or invested on behalf of a ward.
75-17 (s) In determining the amount of the bond, the court may not
75-18 take into account the assets of the estate that are placed in a
75-19 management trust under Subpart N, Part 4, of this code.
75-20 Sec. 704. FORM OF BOND. The following form, or the same in
75-21 substance, may be used for the bonds of guardians:
75-22 "The State of Texas
75-23 "County of _____
75-24 "Know all men by these presents that we, A. B., as principal,
75-25 and E. F., as sureties, are held and firmly bound to the county
75-26 judge of the County of ____ and his successors in office, in the
75-27 sum of $______; conditioned that the above bound A. B., who has
76-1 been appointed by the judge of the county as guardian or temporary
76-2 guardian of the person or of the estate, or both, __________,
76-3 stating in each case whether or not the person is a minor or an
76-4 incapacitated person other than a minor, shall well and truly
76-5 perform all of the duties required of the guardian or temporary
76-6 guardian of the estate by law under appointment."
76-7 Sec. 705. BOND TO BE FILED. A bond required under this
76-8 chapter shall be subscribed by the principals and sureties, and
76-9 shall be filed with the clerk when approved by the court.
76-10 Sec. 706. BOND OF JOINT GUARDIANS. When two or more persons
76-11 are appointed guardians and are required to give a bond by the
76-12 court or under this chapter, the court may require either a
76-13 separate bond from each person or one joint bond from all of the
76-14 persons.
76-15 Sec. 707. BOND OF MARRIED PERSONS. When a married person is
76-16 appointed guardian, the person may jointly execute, with or
76-17 without, the person's spouse, the bond required by law. The bond
76-18 shall bind the person's separate estate and may bind the person's
76-19 spouse only if the bond is signed by the spouse.
76-20 Sec. 708. BOND OF MARRIED PERSON YOUNGER THAN 18 YEARS OF
76-21 AGE. When a person who is younger than 18 years of age and is or
76-22 has been married accepts and qualifies as guardian, a bond required
76-23 to be executed by the person shall be as valid and binding for all
76-24 purposes as if the person were of lawful age.
76-25 Sec. 708A. BOND OF GUARDIANSHIP PROGRAM. The judge may
76-26 require a guardianship program that is appointed guardian under
76-27 this chapter to file one bond that:
77-1 (1) meets all the conditions required under this
77-2 chapter; and
77-3 (2) is in an amount that is sufficient to protect the
77-4 guardianship and the creditors of the guardianship of all of the
77-5 wards of the guardianship program.
77-6 Sec. 709. AFFIDAVIT OF PERSONAL SURETY; LIEN ON SPECIFIC
77-7 PROPERTY WHEN REQUIRED; SUBORDINATION OF LIEN AUTHORIZED. (a)
77-8 Before a judge considers a bond with a personal surety, each
77-9 personal surety shall execute an affidavit stating the amount of
77-10 the surety's assets, reachable by creditors, of a value over and
77-11 above the surety's liabilities. The total of the surety's worth
77-12 must be equal to at least double the amount of the bond. The
77-13 affidavit shall be presented to the judge for the judge's
77-14 consideration and, if approved, shall be attached to and form part
77-15 of the bond.
77-16 (b) If the judge finds that the estimated value of personal
77-17 property of the guardianship that cannot be deposited or held in
77-18 safekeeping as provided by this section is such that personal
77-19 sureties cannot be accepted without the creation of a specific lien
77-20 on the real property of the sureties, the judge shall enter an
77-21 order requiring that each surety designate real property owned by
77-22 the surety in this state subject to execution. The designated
77-23 property must be of a value over and above all liens and unpaid
77-24 taxes, equal at least to the amount of the bond, giving an adequate
77-25 legal description of the property, all of which shall be
77-26 incorporated in an affidavit by the surety, approved by the judge,
77-27 and attached to and form part of the bond. If the surety does not
78-1 comply with the order, the judge may require that the bond be
78-2 signed by an authorized corporate surety or by an authorized
78-3 corporate surety and two or more personal sureties.
78-4 (c) If a personal surety who has been required to create a
78-5 lien on specific real estate desires to lease the real property for
78-6 mineral development, the personal surety may file the surety's
78-7 written application in the court in which the proceeding is pending
78-8 to request subordination of the lien to the proposed lease. The
78-9 judge of the court in which the proceeding is pending may enter an
78-10 order granting the application. A certified copy of an order
78-11 entered under this subsection that is filed and recorded in the
78-12 deed records of the proper county is sufficient to subordinate the
78-13 lien to the rights of a lessee in the proposed lease.
78-14 Sec. 710. BOND AS LIEN ON REAL PROPERTY OF SURETY. When a
78-15 personal surety is required by the court to create a lien on
78-16 specific real property as a condition of the personal surety's
78-17 acceptance as surety on a bond, a lien on the surety's real
78-18 property in this state that is described in the affidavit of the
78-19 surety, and only on the property, shall arise as security for the
78-20 performance of the obligation of the bond. Before letters are
78-21 issued to the guardian, the clerk of the court shall mail to the
78-22 office of the county clerk of each county in which any real
78-23 property set forth in the surety's affidavit is located a statement
78-24 signed by the clerk that gives a sufficient description of the real
78-25 property, the name of the principal and sureties, the amount of the
78-26 bond, the name of the guardianship, and the court in which the bond
78-27 is given. The county clerk to whom such statement is sent shall
79-1 record the statement in the deed records of the county. The
79-2 recorded statement shall be duly indexed in such a manner that the
79-3 existence and character of a lien may conveniently be determined,
79-4 and the recording and indexing of the statement is constructive
79-5 notice to a person of the existence of the lien on the real
79-6 property located in the county, effective as of the date of the
79-7 indexing.
79-8 Sec. 711. WHEN NEW BOND MAY BE REQUIRED. A guardian may be
79-9 required to give a new bond when:
79-10 (1) one of the sureties on the bond dies, removes
79-11 beyond the limits of the state, or becomes insolvent;
79-12 (2) in the opinion of the court, the sureties on the
79-13 bond are insufficient;
79-14 (3) in the opinion of the court, the bond is
79-15 defective;
79-16 (4) the amount of the bond is insufficient;
79-17 (5) one of the sureties petitions the court to be
79-18 discharged from future liability on the bond; or
79-19 (6) the bond and the record of the bond has been lost
79-20 or destroyed.
79-21 Sec. 712. DEMAND FOR NEW BOND BY INTERESTED PERSON. A
79-22 person interested in a guardianship may allege, on application in
79-23 writing that is filed with the county clerk of the county in which
79-24 the guardianship proceeding is pending, that the guardian's bond is
79-25 insufficient or defective or has been, with the record of the bond,
79-26 lost or destroyed, and may cause the guardian to be cited to appear
79-27 and show cause why the guardian should not give a new bond.
80-1 Sec. 713. JUDGE TO REQUIRE NEW BOND. When it is made known
80-2 to a judge that a bond is insufficient or that the bond has, with
80-3 the record of the bond, been lost or destroyed, the judge without
80-4 delay shall cause the guardian to be cited to show cause why the
80-5 guardian should not give a new bond.
80-6 Sec. 714. ORDER REQUIRING NEW BOND. On the return of a
80-7 citation ordering a guardian to show cause why the guardian should
80-8 not give a new bond, the judge on the day contained in the return
80-9 of citation as the day for the hearing of the matter, shall proceed
80-10 to inquire into the sufficiency of the reasons for requiring a new
80-11 bond. If the judge is satisfied that a new bond should be
80-12 required, the judge shall enter an order to that effect that states
80-13 the amount of the new bond and the time within which the new bond
80-14 shall be given, which may not be later than 20 days from the date
80-15 of the order issued by the judge under this section.
80-16 Sec. 715. ORDER SUSPENDS POWERS OF GUARDIANS. When a
80-17 guardian is required to give a new bond, the order requiring the
80-18 bond has the effect of suspending the guardian's powers, and the
80-19 guardian may not pay out any money of the guardianship or do any
80-20 other official act, except to preserve the property of the
80-21 guardianship, until a new bond has been given and approved.
80-22 Sec. 716. DECREASE IN AMOUNT OF BOND. A guardian required
80-23 to give bond at any time may file with the clerk a written
80-24 application to the court to have the bond reduced. After an
80-25 application has been filed by the guardian under this section, the
80-26 clerk shall issue and cause to be posted notice to all persons
80-27 interested in the estate and to a surety on the bond, apprising the
81-1 persons and surety of the fact and nature of the application and of
81-2 the time at which the judge will hear the application. The judge
81-3 may permit the filing of a new bond in a reduced amount on the
81-4 submission of proof that a smaller bond than the one in effect will
81-5 be adequate to meet the requirements of the law and protect the
81-6 guardianship and on the approval of an accounting filed at the time
81-7 of the application.
81-8 Sec. 717. DISCHARGE OF SURETIES ON EXECUTION OF NEW BOND.
81-9 When a new bond has been given and approved, the judge shall enter
81-10 an order discharging the sureties on the former bond from all
81-11 liability for the future acts of the principal.
81-12 Sec. 718. RELEASE OF SURETIES BEFORE GUARDIANSHIP FULLY
81-13 ADMINISTERED. A surety on the guardian's bond at any time may file
81-14 with the clerk a petition with the court in which the proceeding is
81-15 pending, praying that the guardian be required to give a new bond
81-16 and that the petitioner be discharged from all liability for the
81-17 future acts of the guardian. If a petition is filed, the guardian
81-18 shall be cited to appear and give a new bond.
81-19 Sec. 719. RELEASE OF LIEN BEFORE GUARDIANSHIP FULLY
81-20 ADMINISTERED. If a personal surety who has given a lien on
81-21 specific real property as security applies to the court to have the
81-22 lien released, the court shall order the release requested if the
81-23 court is satisfied that the bond is sufficient without the lien on
81-24 the property or if sufficient other real or personal property of
81-25 the surety is substituted on the same terms and conditions required
81-26 for the lien that is to be released. If the personal surety who
81-27 requests the release of the lien does not offer a lien on other
82-1 real or personal property and if the court is not satisfied that
82-2 the bond is sufficient without the substitution of other property,
82-3 the court shall order the guardian to appear and give a new bond.
82-4 Sec. 720. RELEASE OF RECORDED LIEN ON SURETY'S PROPERTY. A
82-5 certified copy of the court order that describes the property,
82-6 releases the lien, and is filed with the county clerk and recorded
82-7 in the deed records of the county in which the property is located
82-8 has the effect of cancelling the lien on the property.
82-9 Sec. 721. REVOCATION OF LETTERS FOR FAILURE TO GIVE BOND.
82-10 If a guardian of a ward fails to give the bond required by the
82-11 court within the time required under this chapter, another person
82-12 may be appointed guardian of the ward.
82-13 Sec. 722. GUARDIAN WITHOUT BOND REQUIRED TO GIVE BOND. If a
82-14 bond is not required of an individual guardian of the estate, a
82-15 person that has a debt, claim, or demand against the guardianship,
82-16 to the justice of which oath has been made by the person, the
82-17 person's agent or attorney, or any other person interested in the
82-18 guardianship, in person or as the representative of another person,
82-19 may file a complaint under oath in writing in the court in which
82-20 the guardian was appointed, and the court, after a complaint is
82-21 filed under this section, shall cite the guardian to appear and
82-22 show cause why the guardian should not be required to give bond.
82-23 Sec. 723. ORDER REQUIRING BOND. On hearing a complaint
82-24 under Section 722 of this code, if it appears to the court that a
82-25 guardian is wasting, mismanaging, or misapplying the guardianship
82-26 estate and that a creditor may probably lose his debt, or that a
82-27 person's interest in the guardianship may be diminished or lost,
83-1 the court shall enter an order requiring the guardian to give a
83-2 bond not later than the 10th day after the date of the order.
83-3 Sec. 724. AMOUNT OF BOND. A bond that is required under
83-4 Section 723 of this code shall be in an amount that is sufficient
83-5 to protect the guardianship and its creditors. The bond shall be
83-6 approved by and payable to the judge and shall be conditioned that
83-7 the guardian will well and truly administer the guardianship and
83-8 that the guardian will not waste, mismanage, or misapply the
83-9 guardianship estate.
83-10 Sec. 725. FAILURE TO GIVE BOND. If the guardian fails to
83-11 give the bond required under Section 723 of this code, and the
83-12 judge does not extend the time, the judge, without citation, shall
83-13 remove the guardian and appoint a competent person as guardian of
83-14 the ward who:
83-15 (1) shall administer the guardianship according to the
83-16 provisions of a will or law;
83-17 (2) shall take the oath required of a guardian as the
83-18 case may be before the person enters on the administration of the
83-19 guardianship; and
83-20 (3) shall give bond in the same manner and in the same
83-21 amount provided in this chapter for the issuance of original
83-22 letters of guardianship.
83-23 Sec. 726. BONDS NOT VOID ON FIRST RECOVERY. The bond of a
83-24 guardian is not void on the first recovery, but the bond may be
83-25 sued on and prosecuted from time to time until the whole amount of
83-26 the bond is recovered.
83-27 PART 4. ADMINISTRATION OF GUARDIANSHIP
84-1 SUBPART A. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS
84-2 Sec. 727. APPOINTMENT OF APPRAISERS. After letters of
84-3 guardianship of the estate have been granted and on the application
84-4 of any interested person, or if the court deems it necessary, the
84-5 court shall appoint at least one but not more than three
84-6 disinterested persons who are citizens of the county in which
84-7 letters were granted to appraise the property of the ward. If the
84-8 court appoints an appraiser under this section and part of the
84-9 estate is located in a county other than the county in which
84-10 letters were granted, the court may appoint at least one but not
84-11 more than three disinterested persons who are citizens of the
84-12 county in which the part of the estate is located to appraise the
84-13 property of the estate located in the county if the court considers
84-14 it necessary to appoint an appraiser.
84-15 Sec. 728. FAILURE OF APPRAISER TO SERVE. If an appraiser
84-16 appointed under Section 727 of this code fails or refuses to act,
84-17 the court shall remove the appraiser and appoint one or more
84-18 appraisers.
84-19 Sec. 729. INVENTORY AND APPRAISEMENT. (a) Not later than
84-20 the 90th day after the date the guardian of the estate qualifies as
84-21 guardian, unless a longer time is granted by the court, the
84-22 guardian of the estate shall file with the clerk of court a
84-23 verified, full and detailed inventory, in one written instrument,
84-24 of all the property of the ward that has come into the guardian's
84-25 possession or knowledge. The inventory filed by the guardian under
84-26 this section must include:
84-27 (1) all real property of the ward that is located in
85-1 this state; and
85-2 (2) all personal property of the ward wherever
85-3 located.
85-4 (b) The guardian shall set out in the inventory the
85-5 guardian's appraisement of the fair market value of each item of
85-6 the property on the date of the grant of letters of guardianship.
85-7 If the court appoints an appraiser of the estate, the guardian
85-8 shall determine the fair market value of each item of the inventory
85-9 with the assistance of the appraiser and shall set out in the
85-10 inventory the appraisement made by the appraiser.
85-11 (c) An inventory made under this section must specify what
85-12 portion of the property is separate property and what portion is
85-13 community property. If any property is owned in common with other
85-14 persons, the interest owned by the ward shall be shown in the
85-15 inventory, together with the names and relationship, if known, of
85-16 co-owners.
85-17 (d) The inventory, when approved by the court and duly
85-18 filed with the clerk of court, is for purposes of this chapter the
85-19 inventory and appraisement of the estate referred to in this
85-20 chapter.
85-21 (e) The court for good cause shown may require the filing of
85-22 the inventory and appraisement at a time not later than the 90th
85-23 day after the date of qualification of the guardian.
85-24 Sec. 730. LIST OF CLAIMS. The guardian shall make and
85-25 attach to an inventory under Section 729 of this code a full and
85-26 complete list of all claims due or owing to the ward that must
85-27 state:
86-1 (1) the name of each person indebted to the ward and
86-2 the address of the person if known;
86-3 (2) the nature of the debt, whether it is a note,
86-4 bill, bond, or other written obligation or whether it is an account
86-5 or verbal contract;
86-6 (3) the date of the indebtedness and the date when the
86-7 debt is or was due;
86-8 (4) the amount of each claim, the rate of interest on
86-9 each claim, and time for which the claim bears interest; and
86-10 (5) what portion of the claim is held in common with
86-11 others, including the names and the relationships of other part
86-12 owners and the interest of the estate in the claim.
86-13 Sec. 731. AFFIDAVIT ATTACHED. The guardian of the estate
86-14 shall attach to the inventory and list of claims the guardian's
86-15 affidavit subscribed and sworn to before an officer in the county
86-16 authorized by law to administer oaths that the inventory and list
86-17 of claims are a true and complete statement of the property and
86-18 claims of the estate that have come to the guardian's knowledge.
86-19 Sec. 732. APPRAISER FEES. An appraiser appointed by the
86-20 court is entitled to receive a reasonable fee for the performance
86-21 of the appraiser's duties as an appraiser that are to be paid out
86-22 of the estate.
86-23 Sec. 733. COURT ACTION. (a) On return of the inventory,
86-24 appraisement, and list of claims, the judge shall examine and
86-25 approve or disapprove the inventory, appraisement, or list of
86-26 claims as follows:
86-27 (1) if the judge approves the inventory, appraisement,
87-1 and list of claims, the judge shall issue an order to that effect;
87-2 and
87-3 (2) if the judge does not approve the inventory,
87-4 appraisement, or list of claims, the judge shall enter an order to
87-5 that effect.
87-6 (b) The court order shall require the return of another
87-7 inventory, appraisement, and list of claims, or whichever of them
87-8 is disapproved, within a time specified in the order but not later
87-9 than 20 days after the date of the order. The judge may appoint
87-10 new appraisers if the judge deems it necessary.
87-11 Sec. 734. DISCOVERY OF ADDITIONAL PROPERTY. The guardian of
87-12 the estate shall promptly file with the clerk of court a verified,
87-13 full, and detailed supplemental inventory and appraisement if
87-14 property or claims that are not included in the inventory come to
87-15 the guardian's possession or knowledge after the guardian files the
87-16 inventory and appraisement required under Section 729 of this code.
87-17 Sec. 735. ADDITIONAL INVENTORY OR LIST OF CLAIMS. (a) On
87-18 the written complaint of an interested person that property or
87-19 claims of the estate have not been included in the inventory and
87-20 list of claims filed by the guardian, the guardian of an estate
87-21 shall be cited to appear before the court in which the cause is
87-22 pending and show cause why the guardian should not be required to
87-23 make and return an additional inventory or list of claims, or both.
87-24 (b) After hearing a complaint filed under this section and
87-25 being satisfied of the truth of the complaint, the court shall
87-26 enter an order requiring the additional inventory or list of
87-27 claims, or both, to be made and returned in like manner as the
88-1 original inventory, not later than 20 days after the date of the
88-2 order, as may be set by the court. The additional inventory or
88-3 list of claims must include only property or claims that were not
88-4 inventoried or listed by the guardian.
88-5 Sec. 736. CORRECTION WHEN INVENTORY, APPRAISEMENT, OR LIST
88-6 OF CLAIMS ERRONEOUS OR UNJUST. A person interested in an estate
88-7 who deems an inventory, appraisement, or list of claims returned by
88-8 the guardian erroneous or unjust in any particular form may file a
88-9 written complaint that sets forth and points out the alleged
88-10 erroneous or unjust items and cause the guardian to be cited to
88-11 appear before the court and show cause why the errors should not be
88-12 corrected. On the hearing of a complaint filed under this section,
88-13 if the court is satisfied from the evidence that the inventory,
88-14 appraisement, or list of claims is erroneous or unjust in any
88-15 particular form as alleged in the complaint, the court shall enter
88-16 an order that specifies the erroneous or unjust items and the
88-17 corrections to be made and that appoints an appraiser to make a new
88-18 appraisement correcting the erroneous or unjust items and requires
88-19 the return of the new appraisement not later than the 20th day
88-20 after the date of the order. The court may also, on its own motion
88-21 or on motion of the guardian of the estate, have a new appraisal
88-22 made for the purposes described by this section.
88-23 Sec. 737. EFFECT OF REAPPRAISEMENT. When a reappraisement
88-24 is made, returned, and approved by the court, the reappraisement
88-25 stands in place of the original appraisement. Not more than one
88-26 reappraisement shall be made, but any person interested in the
88-27 estate may object to the reappraisement before or after the
89-1 reappraisement is approved. If the court finds that the
89-2 reappraisement is erroneous or unjust, the court shall appraise the
89-3 property on the basis of the evidence before the court.
89-4 Sec. 738. FAILURE OF JOINT GUARDIANS TO RETURN AN INVENTORY,
89-5 APPRAISEMENT, AND LIST OF CLAIMS. If there is more than one
89-6 qualified guardian of the estate, one or more of the guardians, on
89-7 the neglect of the other guardians, may make and return an
89-8 inventory and appraisement and list of claims. The guardian so
89-9 neglecting may not thereafter interfere with the estate or have any
89-10 power over the estate. The guardian that returns an inventory,
89-11 appraisement, and list of claims has the whole administration,
89-12 unless, not later than the 60th day after the date of return, each
89-13 of the delinquent guardians assigns to the court in writing and
89-14 under oath a reasonable excuse that the court may deem
89-15 satisfactory. If no excuse is filed or if the excuse filed by a
89-16 delinquent guardian is insufficient, the court shall enter an order
89-17 removing the delinquent guardian and revoking the guardian's
89-18 letters.
89-19 Sec. 739. USE OF INVENTORIES, APPRAISEMENTS, AND LISTS OF
89-20 CLAIMS AS EVIDENCE. All inventories, appraisements, and lists of
89-21 claims that have been taken, returned, and approved in accordance
89-22 with the law, or the record of an inventory, appraisement, or list
89-23 of claims, or copies of either the originals or the record, duly
89-24 certified under the seal of the county court affixed by the clerk,
89-25 may be given in evidence in any of the courts of this state in any
89-26 suit by or against the guardian of the estate, but may not be
89-27 conclusive for or against the guardian of the estate if it is shown
90-1 that any property or claims of the estate are not shown in the
90-2 inventory, appraisement, or list of claims or that the value of the
90-3 property or claims of the estate actually was in excess of the
90-4 value shown in the appraisement and list of claims.
90-5 SUBPART B. ANNUAL ACCOUNTS, REPORTS, AND OTHER EXHIBITS
90-6 Sec. 741. ANNUAL ACCOUNTS REQUIRED. (a) Not later than the
90-7 60th day after the expiration of 12 months from the date of
90-8 qualification, the guardian of the estate of a ward shall return to
90-9 the court an exhibit in writing under oath setting forth a list of
90-10 all claims against the estate that were presented to the guardian
90-11 within the period covered by the account and specifying which
90-12 claims have been allowed, paid, or rejected by the guardian and the
90-13 date when any claim was rejected and which claims have been the
90-14 subject of a lawsuit and the status of the lawsuit, and showing:
90-15 (1) all property that has come to the guardian's
90-16 knowledge or into the guardian's possession that has not been
90-17 previously listed or inventoried as property of the ward;
90-18 (2) any changes in the property of the ward that have
90-19 not been previously reported;
90-20 (3) a complete account of receipts and disbursements
90-21 for the period covered by the account, and the source and nature of
90-22 the receipts and disbursements, with receipts of principal and
90-23 income shown separately;
90-24 (4) a complete, accurate, and detailed description of
90-25 the property being administered, the condition of the property, and
90-26 the use being made of the property and, if rented, the terms of the
90-27 rental and the price for which the property is being rented;
91-1 (5) the cash balance on hand and the name and location
91-2 of the depository where the cash balance is kept and any other sums
91-3 of cash in savings accounts or other form, deposited subject to
91-4 court order, and the name and location of the depository of the
91-5 cash; and
91-6 (6) a detailed description of personal property of the
91-7 estate, that, with respect to bonds, notes, and other securities,
91-8 includes the names of obligor and obligee, or if payable to bearer,
91-9 so state; the date of issue and maturity; the rate of interest;
91-10 serial or other identifying numbers; in what manner the property is
91-11 secured; and other data necessary to identify the same fully, and
91-12 how and where held for safekeeping.
91-13 (b) A guardian of the estate shall file annual accounts
91-14 conforming to the essential requirements of those in Subsection (a)
91-15 of this section as to changes in the assets of the estate after
91-16 rendition of the former account so that the true condition of the
91-17 estate, with respect to money or securities or other property, can
91-18 be ascertained by the court or by any interested person, by adding
91-19 to the balances forward the receipts, and then subtracting the
91-20 disbursements. The description of property sufficiently described
91-21 in an inventory or previous account may be by reference to the
91-22 property.
91-23 (c) The following shall be annexed to all annual accounts of
91-24 guardians of estates:
91-25 (1) proper vouchers for each item of credit claimed in
91-26 the account, or, in the absence of a voucher, the item must be
91-27 supported by evidence satisfactory to the court, and original
92-1 vouchers may, on application, be returned to the guardian after
92-2 approval of the guardian's account;
92-3 (2) an official letter from the bank or other
92-4 depository in which the money on hand of the estate or ward is
92-5 deposited that shows the amounts in general or special deposits;
92-6 and
92-7 (3) proof of the existence and possession of
92-8 securities owned by the estate, or shown by the accounting, and
92-9 other assets held by a depository subject to court order, the proof
92-10 by one of the following means:
92-11 (A) an official letter from the bank or other
92-12 depository that holds the securities or other assets for
92-13 safekeeping; provided, that if the depository is the
92-14 representative, the official letter shall be signed by a
92-15 representative of the depository other than the depository that
92-16 verifies the account;
92-17 (B) a certificate of an authorized
92-18 representative of the corporation that is the surety on the
92-19 representative's bonds;
92-20 (C) a certificate of the clerk or a deputy clerk
92-21 of a court of record in this state; or
92-22 (D) an affidavit of any other reputable person
92-23 designated by the court on request of the guardian or other
92-24 interested party.
92-25 (d) A certificate or affidavit under this section shall be
92-26 to the effect that the affiant has examined the assets exhibited to
92-27 the affiant by the guardian as assets of the estate in which the
93-1 accounting is made, shall describe the assets by reference to the
93-2 account or otherwise sufficiently to identify those assets
93-3 exhibited, and shall state the time when and the place where the
93-4 assets were exhibited. Instead of using a certificate or an
93-5 affidavit, the representative may exhibit the securities to the
93-6 judge of the court who shall endorse on the account, or include in
93-7 the judge's order with respect to the account, a statement that the
93-8 securities shown to the judge as on hand were in fact exhibited to
93-9 the judge and that those securities exhibited to the judge were the
93-10 same as those shown in the account, or note any variance. If the
93-11 securities are exhibited at any place other than where deposited
93-12 for safekeeping, it shall be at the expense and risk of the
93-13 representative. The judge may require additional evidence as to
93-14 the existence and custody of the securities and other personal
93-15 property as in the judge's discretion the judge considers proper,
93-16 and the judge may require the representative to exhibit the
93-17 securities to the judge, or any person designated by the judge, at
93-18 any time at the place where the securities are held for
93-19 safekeeping.
93-20 (e) The guardian of the estate filing the account shall
93-21 attach to the account the guardian's affidavit that:
93-22 (1) the account contains a correct and complete
93-23 statement of the matters to which the account relates;
93-24 (2) the guardian has paid the bond premium for the
93-25 next accounting period;
93-26 (3) the guardian has filed all tax returns of the ward
93-27 due during the accounting period; and
94-1 (4) the guardian has paid all taxes the ward owed
94-2 during the accounting period, showing:
94-3 (A) the amount of the taxes;
94-4 (B) the date the guardian paid the taxes; and
94-5 (C) the name of the governmental entity to which
94-6 the guardian paid the taxes.
94-7 (f) If the guardian, on the ward's behalf, has not filed a
94-8 tax return or paid taxes that are due on the filing of the account
94-9 under this section, the guardian of the estate filing the account
94-10 shall attach to the account a detailed description of the taxes and
94-11 the reasons for the guardian's failure to file the return or pay
94-12 the taxes.
94-13 (g) If the estate produces negligible or fixed income, the
94-14 court has the power to waive the filing of annual accounts, and the
94-15 court may permit the guardian to receive all income and apply it to
94-16 the support, maintenance, and education of the ward and account to
94-17 the court for income and corpus of the estate when the estate must
94-18 be closed.
94-19 Sec. 742. ACTION ON ANNUAL ACCOUNTS. (a) The rules in this
94-20 section govern the handling of annual accounts.
94-21 (b) Annual accounts shall be filed with the county clerk,
94-22 and the filing of the accounts shall be noted on the judge's
94-23 docket.
94-24 (c) Before being considered by the judge, the account must
94-25 remain on file for 10 days.
94-26 (d) After the expiration of 10 days after the filing of an
94-27 annual account, the judge shall consider the annual account, and
95-1 may continue the hearing on the account until the judge is fully
95-2 advised as to all items of the account.
95-3 (e) An accounting may not be approved unless possession of
95-4 cash, listed securities, or other assets held in safekeeping or on
95-5 deposit under court order has been proved as required by law.
95-6 (f) If an account is found to be incorrect, it shall be
95-7 corrected. When corrected to the satisfaction of the court, the
95-8 account shall be approved by a court order, and the court shall act
95-9 with respect to unpaid claims, as follows:
95-10 (1) if it appears from the exhibit, or from other
95-11 evidence, that the estate is wholly solvent, and that the guardian
95-12 has sufficient funds for the payment of every claim against the
95-13 estate, the court shall order immediate payment made of all claims
95-14 allowed and approved or established by judgment; and
95-15 (2) if it appears from the account, or from other
95-16 evidence, that the funds on hand are not sufficient for the payment
95-17 of all the claims, or if the estate is insolvent and the guardian
95-18 has any funds on hand, the court shall order the funds to be
95-19 applied to the payment of all claims having a preference in the
95-20 order of their priority if any claim is still unpaid, and then to
95-21 the payment pro rata of the other claims allowed and approved or
95-22 established by final judgment, taking into consideration also the
95-23 claims that were presented not later than 12 months after the date
95-24 of the granting of administration and those claims that are in suit
95-25 or on which suit may yet be instituted.
95-26 Sec. 743. REPORTS OF GUARDIANS OF THE PERSON. (a) The
95-27 guardian of the person, when there is a separate guardian of the
96-1 estate, shall at the expiration of 12 months from the date of the
96-2 guardian's qualification and receipt of letters, and annually
96-3 thereafter, return to the court the guardian's sworn account
96-4 showing each item of receipts and disbursements for the support and
96-5 maintenance of the ward, the education of the ward when necessary,
96-6 and support and maintenance of the ward's dependents, when
96-7 authorized by order of court.
96-8 (b) The guardian of the person, whether or not there is a
96-9 separate guardian of the estate, shall submit to the court an
96-10 annual report by sworn affidavit that contains the following
96-11 information:
96-12 (1) the guardian's current name, address, and phone
96-13 number;
96-14 (2) the ward's current:
96-15 (A) name, address, and phone number; and
96-16 (B) age and date of birth;
96-17 (3) the type of home in which the ward resides,
96-18 described as the ward's own; a nursing, guardian's, foster, or
96-19 boarding home; a relative's home, and the ward's relationship to
96-20 the relative; a hospital or medical facility; or other type of
96-21 residence;
96-22 (4) the length of time the ward has resided in the
96-23 present home and, if there has been a change in the ward's
96-24 residence in the past year, the reason for the change;
96-25 (5) the date the guardian most recently saw the ward,
96-26 and how frequently the guardian has seen the ward in the past year;
96-27 (6) a statement indicating whether or not the guardian
97-1 has possession or control of the ward's estate;
97-2 (7) the following statements concerning the ward's
97-3 health during the past year:
97-4 (A) whether the ward's mental health has
97-5 improved, deteriorated, or remained unchanged, and a description if
97-6 there has been a change; and
97-7 (B) whether the ward's physical health has
97-8 improved, deteriorated, or remained unchanged, and a description if
97-9 there has been a change;
97-10 (8) a statement concerning whether or not the ward has
97-11 regular medical care, and the ward's treatment or evaluation by any
97-12 of the following persons during the last year, including the name
97-13 of that person, and the treatment involved:
97-14 (A) a physician;
97-15 (B) a psychiatrist, psychologist, or other
97-16 mental health care provider;
97-17 (C) a dentist;
97-18 (D) a social or other caseworker; or
97-19 (E) another individual who provided treatment;
97-20 (9) a description of the ward's activities during the
97-21 past year, including recreational, educational, social, and
97-22 occupational activities, or if no activities are available or if
97-23 the ward is unable or has refused to participate in them, a
97-24 statement to that effect;
97-25 (10) the guardian's evaluation of the ward's living
97-26 arrangements as excellent, average, or below average, including an
97-27 explanation if the conditions are below average;
98-1 (11) the guardian's evaluation of whether the ward is
98-2 content or unhappy with the ward's living arrangements;
98-3 (12) the guardian's evaluation of unmet needs of the
98-4 ward;
98-5 (13) a statement of whether or not the guardian's
98-6 power should be increased, decreased, or unaltered, including an
98-7 explanation if a change is recommended; and
98-8 (14) any additional information the guardian desires
98-9 to share with the court regarding the ward.
98-10 (c) If the ward is deceased, the guardian shall provide the
98-11 court with the date and place of death, if known, in lieu of the
98-12 information about the ward otherwise required to be provided in the
98-13 annual report.
98-14 (d) Unless the judge is satisfied that the facts stated are
98-15 true, he shall issue orders as are necessary for the best interests
98-16 of the ward.
98-17 Sec. 744. PENALTY FOR FAILURE TO FILE ACCOUNTINGS, EXHIBITS,
98-18 OR REPORTS. If a guardian fails to file any accounting, exhibit,
98-19 or report required by this chapter, any person interested in the
98-20 estate may, on written complaint filed with the clerk of the
98-21 court, or the court on its own motion, may cause the guardian to be
98-22 cited to appear and show cause why the guardian should not file the
98-23 exhibit or report; and, on hearing, the court may order the
98-24 guardian to file the exhibit or report, and, unless good cause is
98-25 shown for the failure to file the exhibit or report, the court may
98-26 revoke the letters of the guardian and may fine the guardian an
98-27 amount not to exceed $1,000.
99-1 SUBPART C. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE
99-2 Sec. 745. CLOSING GUARDIANSHIPS OF THE ESTATE. (a) A
99-3 guardianship of the estate of a ward is settled and closed when:
99-4 (1) a minor ward dies or becomes an adult by becoming
99-5 18 years of age, or by removal of disabilities of minority
99-6 according to the law of this state, or by marriage;
99-7 (2) an incapacitated ward dies, or is decreed as
99-8 provided by law to have been restored to full legal capacity;
99-9 (3) the spouse of a married ward has qualified as
99-10 survivor in community and the ward owns no separate property;
99-11 (4) the estate of a ward becomes exhausted;
99-12 (5) the foreseeable income accruing to a ward or to
99-13 his estate is so negligible that maintaining the guardianship in
99-14 force would be burdensome;
99-15 (6) all of the assets of the estate have been placed
99-16 in a management trust under Subpart N, Part 4, of this code and the
99-17 court determines that a guardianship for the ward is no longer
99-18 necessary; or
99-19 (7) the court determines for any other reason that a
99-20 guardianship for the ward is no longer necessary.
99-21 (b) In a case arising under Subsection (a)(5) of this
99-22 section, the court may authorize the income to be paid to a parent,
99-23 or other person who has acted as guardian of the ward, to assist in
99-24 the maintenance of the ward and without liability to account to the
99-25 court for the income.
99-26 (c) When the estate of a minor ward consists only of cash or
99-27 cash equivalents in an amount of $25,000 or less, the guardianship
100-1 of the estate may be terminated and the assets paid to the county
100-2 clerk of the county in which the guardianship proceeding is
100-3 pending, and the clerk shall manage the funds as provided by
100-4 Section 885 of this code.
100-5 (d) In the settlement and closing of a guardianship, the
100-6 court may appoint an attorney ad litem to represent the interests
100-7 of the ward, and may allow the attorney reasonable compensation for
100-8 services provided by the attorney out of the ward's estate.
100-9 Sec. 746. PAYMENT OF FUNERAL EXPENSES AND OTHER DEBTS.
100-10 Notwithstanding Section 745 of this code, before the guardianship
100-11 of a person or estate of a ward is closed on the death of a ward,
100-12 the guardian, subject to the approval of the court, may make all
100-13 funeral arrangements, pay for the funeral expenses out of the
100-14 estate of the deceased ward, and pay all other debts out of the
100-15 estate. If a personal representative of the estate of a deceased
100-16 ward is appointed, the court shall on the written complaint of the
100-17 personal representative cause the guardian to be cited to appear
100-18 and present a final account as provided in Section 749 of this
100-19 code.
100-20 Sec. 747. TERMINATION OF GUARDIANSHIP OF THE PERSON. (a)
100-21 When the guardianship of an incapacitated person is settled and
100-22 closed as provided by Section 745 of this code, the guardian of the
100-23 person shall deliver all property of the ward in the possession or
100-24 control of the guardian to the emancipated ward or other person
100-25 entitled to the property. If the ward is deceased, the guardian
100-26 shall deliver the property to the personal representative of the
100-27 deceased ward's estate or other person entitled to the property.
101-1 (b) If there is no property of the ward in the possession or
101-2 control of the guardian of the person, the guardian shall file with
101-3 the court a sworn affidavit that states the reason the guardianship
101-4 was terminated and to whom the property of the ward in the
101-5 guardian's possession was delivered. The judge may issue orders as
101-6 necessary for the best interests of the ward or of the estate of a
101-7 deceased ward. This section does not discharge a guardian of the
101-8 person from liability for breach of the guardian's fiduciary
101-9 duties.
101-10 Sec. 748. PAYMENT BY GUARDIAN OF TAXES OR EXPENSES.
101-11 Notwithstanding any other provision of this chapter, a probate
101-12 court in which proceedings to declare heirship are maintained may
101-13 order the payment by the guardian of any and all taxes or expenses
101-14 of administering the estate and may order the sale of properties in
101-15 the ward's estate, when necessary, for the purpose of paying the
101-16 taxes or expenses of administering the estate or for the purpose of
101-17 distributing the estate among the heirs.
101-18 Sec. 749. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS.
101-19 When a guardianship of the estate is settled and closed, the
101-20 guardian shall present to the court the guardian's verified account
101-21 for final settlement. In the account it shall be sufficient to
101-22 refer to the inventory without describing each item of property in
101-23 detail and to refer to and adopt any and all guardianship
101-24 proceedings that concern sales, renting or hiring, leasing for
101-25 mineral development, or any other transaction on behalf of the
101-26 guardianship estate, including an exhibit, account, or voucher
101-27 previously filed and approved, without restating the particular
102-1 items. Each final account shall be accompanied by proper vouchers
102-2 in support of each item not already accounted for and shall show,
102-3 either by reference to any proceedings authorized above or by
102-4 statement of the facts:
102-5 (1) the property, rents, revenues, and profits
102-6 received by the guardian, and belonging to the ward, during the
102-7 term of the guardianship;
102-8 (2) the disposition made of the property, rents,
102-9 revenues, and profits;
102-10 (3) the expenses and debts against the estate that
102-11 remain unpaid, if any;
102-12 (4) the property of the estate that remains in the
102-13 hands of the guardian, if any; and
102-14 (5) other facts as appear necessary to a full and
102-15 definite understanding of the exact condition of the guardianship.
102-16 Sec. 750. PROCEDURE IN CASE OF NEGLECT OR FAILURE TO FILE
102-17 FINAL ACCOUNT OR REPORT. (a) If a guardian charged with the duty
102-18 of filing a final account or report fails or neglects so to do at
102-19 the proper time, the court may, on the court's own motion, or on
102-20 the written complaint of the emancipated ward or anyone interested
102-21 in the ward or the ward's estate, shall cause the guardian to be
102-22 cited to appear and present the account or report within the time
102-23 specified in the citation.
102-24 (b) If a written complaint has not been filed by anyone
102-25 interested in the guardianship of a person or estate of a minor or
102-26 deceased ward, the court may, on or after the second anniversary
102-27 after the date of the death of the ward or after the date the minor
103-1 reaches the age of majority, remove the estate from the court's
103-2 active docket without a final accounting and without appointing a
103-3 successor personal representative.
103-4 (c) If a complaint has not been filed by anyone interested
103-5 in the estate of a ward whose whereabouts are unknown to the court,
103-6 the court may, on or after the fourth anniversary after the ward's
103-7 whereabouts became unknown to the court, remove the estate from the
103-8 court's active docket without a final accounting and without
103-9 appointing a successor personal representative.
103-10 (d) If the whereabouts of the personal representative and
103-11 heirs of a decedent are unknown and a complaint has not been filed
103-12 by anyone interested in the decedent's estate, the court may, on or
103-13 after the fourth anniversary after the date letters testamentary or
103-14 of administration are issued, close the estate without a final
103-15 accounting and without appointing a successor personal
103-16 representative.
103-17 Sec. 751. CITATION ON PRESENTATION OF ACCOUNT FOR FINAL
103-18 SETTLEMENT. (a) On the filing of an account for final settlement
103-19 by a guardian of the estate of a ward, citation must contain a
103-20 statement that the final account has been filed, the time and place
103-21 when it will be considered by the court, and a statement requiring
103-22 the person cited to appear and contest the final account if the
103-23 person determines it is proper. The county clerk shall issue the
103-24 citation to the following persons and in the manner provided by
103-25 this section.
103-26 (b) If a ward is a living resident of this state who is 14
103-27 years of age or older, and the ward's residence is known, the ward
104-1 shall be cited by personal service, unless the ward, in person or
104-2 by attorney, by writing filed with the clerk, waives the issuance
104-3 and personal service of citation.
104-4 (c) If one who has been a ward is deceased, the ward's
104-5 executor or administrator, if one has been appointed, shall be
104-6 personally served, but no service is required if the executor or
104-7 administrator is the same person as the guardian.
104-8 (d) If a ward's residence is unknown, or if the ward is a
104-9 nonresident of this state, or if the ward is deceased and no
104-10 representative of the ward's estate has been appointed and
104-11 qualified in this state, the citation to the ward or to the ward's
104-12 estate shall be by publication, unless the court by written order
104-13 directs citation by posting.
104-14 (e) If the court deems further additional notice necessary,
104-15 it shall require the additional notice by written order. In its
104-16 discretion, the court may allow the waiver of notice of an account
104-17 for final settlement in a guardianship proceeding.
104-18 Sec. 752. COURT ACTION. (a) On being satisfied that
104-19 citation has been duly served on all persons interested in the
104-20 estate, the court shall examine the account for final settlement
104-21 and the vouchers accompanying the account. After hearing all
104-22 exceptions or objections to the account and evidence in support of
104-23 or against the account, the court shall audit and settle the same,
104-24 and restate it if that is necessary.
104-25 (b) On final settlement of an estate, if there is any part
104-26 of the estate remaining in the hands of the guardian, the court
104-27 shall order that it be delivered, in case of a ward, to the ward,
105-1 or in the case of a deceased ward, to the personal representative
105-2 of the deceased ward's estate if one has been appointed, or to any
105-3 other person legally entitled to the estate.
105-4 (c) If on final settlement of an estate there is no part of
105-5 the estate remaining in the hands of the guardian, the court shall
105-6 discharge the guardian from the guardian's trust and order the
105-7 estate closed.
105-8 (d) When the guardian of an estate has fully administered
105-9 the estate in accordance with this chapter and the orders of the
105-10 court and the guardian's final account has been approved, and the
105-11 guardian has delivered all of the estate remaining in the
105-12 guardian's hands to any person entitled to receive the estate, the
105-13 court shall enter an order discharging the guardian from the
105-14 guardian's trust, and declaring the estate closed.
105-15 Sec. 753. MONEY BECOMING DUE PENDING FINAL DISCHARGE. Money
105-16 or any other thing of value falling due to the estate or ward while
105-17 the account for final settlement is pending, other than money or
105-18 any other thing of value held under Section 703(c) of this code,
105-19 until the order of final discharge of the guardian is entered in
105-20 the minutes of the court, may be paid, delivered, or tendered to
105-21 the emancipated ward, the guardian, or the personal representative
105-22 of the deceased ward's estate, who shall issue a receipt for the
105-23 money or other thing of value, and the obligor or payor shall be
105-24 discharged of the obligation for all purposes.
105-25 Sec. 754. INHERITANCE TAXES MUST BE PAID. If the guardian
105-26 has been ordered to make payment of inheritance taxes under this
105-27 code, an estate of a deceased ward may not be closed unless the
106-1 final account shows and the court finds that all inheritance taxes
106-2 due and owing to this state with respect to all interests and
106-3 properties passing through the hands of the guardian have been
106-4 paid.
106-5 Sec. 755. APPOINTMENT OF ATTORNEY TO REPRESENT WARD. When
106-6 the ward is dead and there is no executor or administrator of the
106-7 ward's estate, or when the ward is a nonresident, or the ward's
106-8 residence is unknown, the court may appoint an attorney ad litem to
106-9 represent the interest of the ward in the final settlement with the
106-10 guardian, and shall allow the attorney reasonable compensation out
106-11 of the ward's estate for any services provided by the attorney.
106-12 Sec. 756. OFFSETS, CREDITS, AND BAD DEBTS. In the
106-13 settlement of any of the accounts of the guardian of an estate, all
106-14 debts due the estate that the court is satisfied could not have
106-15 been collected by due diligence, and that have not been collected,
106-16 shall be excluded from the computation.
106-17 Sec. 757. ACCOUNTING FOR LABOR OR SERVICES OF A WARD. The
106-18 guardian of a ward shall account for the reasonable value of the
106-19 labor or services of the ward of the guardian, or the proceeds of
106-20 the labor or services, if the labor or services have been rendered
106-21 by the ward, but the guardian is entitled to reasonable credits for
106-22 the board, clothing, and maintenance of the ward.
106-23 Sec. 758. PROCEDURE IF REPRESENTATIVE FAILS TO DELIVER
106-24 ESTATE. If a guardian, on final settlement or termination of the
106-25 guardianship of the estate, neglects to deliver to the person
106-26 entitled when legally demanded any portion of the estate or any
106-27 funds or money in the hands of the guardian ordered to be
107-1 delivered, a person entitled to the estate, funds, or money may
107-2 file with the clerk of the court a written complaint alleging the
107-3 fact of the guardian's neglect, the date of the person's demand,
107-4 and other relevant facts. After the person files a complaint under
107-5 this section, the clerk shall issue a citation to be served
107-6 personally on the guardian, appraising the guardian of the
107-7 complaint and citing the guardian to appear before the court and
107-8 answer, if the guardian desires, at the time designated in the
107-9 citation. If at the hearing the court finds that the citation was
107-10 duly served and returned and that the guardian is guilty of the
107-11 neglect charged, the court shall enter an order to that effect, and
107-12 the guardian shall be liable to the person who filed the complaint
107-13 in damages at the rate of 10 percent of the amount or appraised
107-14 value of the money or estate withheld, per month, for each month or
107-15 fraction of a month that the estate or money of a guardianship of
107-16 the estate, or on termination of guardianship of the person, or
107-17 funds is or has been withheld by the guardian after the date of
107-18 demand, which damages may be recovered in any court of competent
107-19 jurisdiction.
107-20 SUBPART D. REVOCATION OF LETTERS, DEATH, RESIGNATION, AND REMOVAL
107-21 Sec. 759. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) In case
107-22 of death, a personal representative of the deceased person shall
107-23 account for, pay, and deliver to a person legally entitled to
107-24 receive the property, all the property belonging to the
107-25 guardianship that is entrusted to the care of the representative,
107-26 at the time and in the manner as the court orders. On a finding
107-27 that a necessity for the immediate appointment of a successor
108-1 guardian exists, the court may appoint a successor guardian without
108-2 citation or notice.
108-3 (b) If letters have been granted to a person, and another
108-4 person whose right to be appointed successor guardian is prior and
108-5 who has not waived the right and is qualified, applies for letters,
108-6 the letters previously granted shall be revoked and other letters
108-7 shall be granted to the applicant.
108-8 (c) If a person named in a will as guardian is not an adult
108-9 when the will is probated and letters in any capacity have been
108-10 granted to another person, the nominated guardian, on proof that
108-11 the nominated guardian has become an adult and is not otherwise
108-12 disqualified from serving as a guardian, is entitled to have the
108-13 former letters revoked and appropriate letters granted to the
108-14 nominated guardian. If the will names two or more persons as
108-15 guardian, any one or more of whom are minors when the will is
108-16 probated and letters have been issued to the persons who are
108-17 adults, a minor, on becoming an adult, if not otherwise
108-18 disqualified, is permitted to qualify and receive letters.
108-19 (d) If a person named in a will as guardian was ill or
108-20 absent from the state when the testator died, or when the will was
108-21 proved, and for that reason could not present the will for probate
108-22 not later than the 30th day after the testator's death, or accept
108-23 and qualify as guardian not later than the 20th day after the date
108-24 the will was probated, the person may accept and qualify as
108-25 guardian not later than the 60th day after the person's return or
108-26 recovery from illness, on proof to the court that the person was
108-27 absent or ill. If the letters have been issued to another person,
109-1 the letters shall be revoked.
109-2 (e) If it is discovered after letters of guardianship have
109-3 been issued that the deceased person left a lawful will, the
109-4 letters shall be revoked and proper letters of guardianship issued
109-5 to a person entitled to receive the letters.
109-6 (f) Except when otherwise expressly provided in this
109-7 chapter, letters may not be revoked and other letters granted
109-8 except on application, and after personal service of citation on
109-9 the person, if living, whose letters are sought to be revoked, that
109-10 the person appear and show cause why the application should not be
109-11 granted.
109-12 (g) Money or any other thing of value falling due to a ward
109-13 while the office of the guardian is vacant may be paid, delivered,
109-14 or tendered to the clerk of the court for credit of the ward, and
109-15 the debtor, obligor, or payor shall be discharged of the obligation
109-16 for all purposes to the extent and purpose of the payment or
109-17 tender. If the clerk accepts the payment or tender, the clerk
109-18 shall issue a proper receipt for the payment or tender.
109-19 (h) The court may appoint as successor guardian a spouse,
109-20 parent, or child of a proposed ward who has been disqualified from
109-21 serving as guardian because of a litigation conflict under Section
109-22 681(4) of this code on removal of the conflict that caused the
109-23 initial disqualification if the spouse, parent, or child is
109-24 otherwise qualified to serve as a guardian.
109-25 Sec. 760. RESIGNATION. (a) A guardian of the estate who
109-26 wishes to resign the guardian's trust shall file with the clerk a
109-27 written application to the court to that effect, accompanied by a
110-1 full and complete exhibit and final account, duly verified, showing
110-2 the true condition of the guardianship estate entrusted to the
110-3 guardian's care. A guardian of the person who wishes to resign the
110-4 guardian's trust shall file with the clerk a written application to
110-5 the court to that effect, accompanied by a report setting forth the
110-6 information required in the annual report required under this
110-7 chapter, duly verified, showing the condition of the ward entrusted
110-8 to the guardian's care.
110-9 (b) If the necessity exists, the court may immediately
110-10 accept a resignation and appoint a successor but may not discharge
110-11 the person resigning as guardian of the estate or release the
110-12 person or the sureties on the person's bond until final order or
110-13 judgment is rendered on the final account of the guardian.
110-14 (c) On the filing of an application to resign, supported by
110-15 an exhibit and final account, the clerk shall call the application
110-16 to the attention of the judge, who shall set a date for a hearing
110-17 on the matter. The clerk shall then issue a citation to all
110-18 interested persons, showing that proper application has been filed
110-19 and the time and place set for hearing, at which time the
110-20 interested persons may appear and contest the exhibit and account
110-21 or report. The citation shall be posted, unless the court directs
110-22 that it be published.
110-23 (d) At the time set for hearing, unless it has been
110-24 continued by the court, if the court finds that citation has been
110-25 duly issued and served, the court shall proceed to examine the
110-26 exhibit and account or report and hear all evidence for and against
110-27 the exhibit, account, or report and shall, if necessary, restate,
111-1 and audit and settle the exhibit, account, or report. If the court
111-2 is satisfied that the matters entrusted to the applicant have been
111-3 handled and accounted for in accordance with the law, the court
111-4 shall enter an order of approval and require that the estate
111-5 remaining in the possession of the applicant, if any, be delivered
111-6 to the person entitled by law to receive it. A guardian of the
111-7 person is required to comply with all orders of the court
111-8 concerning the ward of the guardian.
111-9 (e) A resigning guardian may not be discharged until the
111-10 application has been heard, the exhibit and account or report
111-11 examined, settled, and approved, and the guardian has satisfied the
111-12 court that the guardian has delivered the estate, if there is any
111-13 part of the estate remaining in the possession of the guardian, or
111-14 has complied with all orders of the court with relation to the
111-15 guardian's trust.
111-16 (f) When the resigning guardian has complied in all respects
111-17 with the orders of the court, an order shall be made accepting the
111-18 resignation, discharging the applicant, and, if the applicant is
111-19 under bond, the sureties of the guardian.
111-20 Sec. 761. REMOVAL. (a) The court, on its own motion or on
111-21 motion of any interested person, including the ward, and without
111-22 notice, may remove any guardian, appointed under this chapter, who:
111-23 (1) neglects to qualify in the manner and time
111-24 required by law;
111-25 (2) fails to return within 90 days after
111-26 qualification, unless the time is extended by order of the court,
111-27 an inventory of the property of the guardianship estate and list of
112-1 claims that have come to the guardian's knowledge;
112-2 (3) having been required to give a new bond, fails to
112-3 do so within the time prescribed;
112-4 (4) absents himself from the state for a period of
112-5 three months at one time without permission of the court, or
112-6 removes from the state;
112-7 (5) cannot be served with notices or other processes
112-8 because the guardian's whereabouts are unknown, or because the
112-9 guardian is eluding service;
112-10 (6) has misapplied, embezzled, or removed from the
112-11 state, or is about to misapply, embezzle, or remove from the state,
112-12 all or any part of the property committed to the guardian's care;
112-13 or
112-14 (7) has cruelly treated a ward, or has neglected to
112-15 educate or maintain the ward as liberally as the means of the ward
112-16 and the condition of the ward's estate permit.
112-17 (b) The court may remove a personal representative under
112-18 Subsection (a)(6) or (7) of this section only on the presentation
112-19 of clear and convincing evidence given under oath.
112-20 (c) The court may remove a guardian on its own motion, or on
112-21 the complaint of an interested person, after the guardian has been
112-22 cited by personal service to answer at a time and place set in the
112-23 notice, when:
112-24 (1) sufficient grounds appear to support belief that
112-25 the guardian has misapplied, embezzled, or removed from the state,
112-26 or that the guardian is about to misapply, embezzle, or remove from
112-27 the state, all or any part of the property committed to the care of
113-1 the guardian;
113-2 (2) the guardian fails to return any account or report
113-3 that is required by law to be made;
113-4 (3) the guardian fails to obey any proper order of the
113-5 court having jurisdiction with respect to the performance of the
113-6 guardian's duties;
113-7 (4) the guardian is proved to have been guilty of
113-8 gross misconduct or mismanagement in the performance of the duties
113-9 of the guardian;
113-10 (5) the guardian becomes incapacitated, or is
113-11 sentenced to the penitentiary, or from any other cause becomes
113-12 incapable of properly performing the duties of the guardian's
113-13 trust;
113-14 (6) as guardian of the person, the guardian cruelly
113-15 treats the ward, or neglects to educate or maintain the ward as
113-16 liberally as the means of the ward's estate and the ward's ability
113-17 or condition permit;
113-18 (7) the guardian interferes with the ward's progress
113-19 or participation in programs in the community; or
113-20 (8) the guardian fails to comply with the requirements
113-21 of Section 126 of this code.
113-22 (d) The order of removal shall state the cause of the
113-23 removal. It must require that any letters issued to the person who
113-24 is removed shall, if the removed person has been personally served
113-25 with citation, be surrendered and that all those letters be
113-26 cancelled of record, whether or not delivered. It must further
113-27 require, as to all the estate remaining in the hands of a removed
114-1 person, delivery of the estate to the person or persons entitled to
114-2 the estate, or to one who has been appointed and has qualified as
114-3 successor guardian, and as to the person of a ward, that control be
114-4 relinquished as required in the order.
114-5 Sec. 762. REINSTATEMENT AFTER REMOVAL. (a) Not later than
114-6 the 10th day after the date the court signs the order of removal, a
114-7 personal representative who is removed under Subsection (a)(6) or
114-8 (7), Section 761, of this code may file an application with the
114-9 court for a hearing to determine whether the personal
114-10 representative should be reinstated.
114-11 (b) On the filing of an application for a hearing under this
114-12 section, the court clerk shall issue a notice stating that the
114-13 application for reinstatement was filed, the name of the ward or
114-14 decedent, and the name of the applicant. The clerk shall issue the
114-15 notice to the applicant, the ward, a person interested in the
114-16 welfare of the ward, the decedent's estate, or the ward's estate,
114-17 and, if applicable, to a person who has control of the care and
114-18 custody of the ward. The notice must cite all persons interested
114-19 in the estate or welfare of the ward to appear at the time and
114-20 place stated in the notice if they wish to contest the application.
114-21 (c) If, at the conclusion of a hearing under this section,
114-22 the court is satisfied by a preponderance of the evidence that the
114-23 applicant did not engage in the conduct that directly led to the
114-24 applicant's removal, the court shall set aside an order appointing
114-25 a successor representative, if any, and shall enter an order
114-26 reinstating the applicant as personal representative of the ward or
114-27 estate.
115-1 (d) If the court sets aside the appointment of a successor
115-2 representative under this section, the court may require the
115-3 successor representative to prepare and file, under oath, an
115-4 accounting of the estate and to detail the disposition the
115-5 successor has made of the property of the estate.
115-6 Sec. 763. ADDITIONAL POWERS OF SUCCESSOR GUARDIAN. In
115-7 addition, a successor guardian may make himself, and may be made, a
115-8 party to a suit prosecuted by or against the predecessor of the
115-9 successor guardian. The successor guardian may settle with the
115-10 predecessor and receive and receipt for all the portion of the
115-11 estate as remains in the hands of the successor guardian. The
115-12 successor guardian may bring suit on the bond or bonds of the
115-13 predecessor in the guardian's own name and capacity for all the
115-14 estate that came into the hands of the predecessor and has not been
115-15 accounted for by the predecessor.
115-16 Sec. 764. SUBSEQUENT GUARDIANS SUCCEED TO PRIOR RIGHTS AND
115-17 DUTIES. Whenever a guardian shall accept and qualify after letters
115-18 of guardianship are granted on the estate, the guardian shall, in
115-19 like manner, succeed to the previous guardian, and the guardian
115-20 shall administer the estate in like manner as if the administration
115-21 by the guardian were a continuation of the former one.
115-22 Sec. 765. SUCCESSORS' RETURN OF INVENTORY, APPRAISEMENT, AND
115-23 LIST OF CLAIMS. A successor guardian who has qualified to succeed
115-24 a prior guardian shall make and return to the court an inventory,
115-25 appraisement, and list of claims of the estate, not later than 90
115-26 days after the date of qualification, in the same manner as is
115-27 required of an original appointee. The successor guardian shall in
116-1 like manner as is required of an original appointee return
116-2 additional inventories, appraisements, and lists of claims. In all
116-3 orders appointing a successor guardian, the court shall appoint an
116-4 appraiser as in original appointments on the application of any
116-5 person interested in the estate.
116-6 SUBPART E. GENERAL DUTIES AND POWERS OF GUARDIANS
116-7 Sec. 767. POWERS AND DUTIES OF GUARDIANS OF THE PERSON. The
116-8 guardian of the person is entitled to the charge and control of the
116-9 person of the ward, and the duties of the guardian correspond with
116-10 the rights of the guardian. A guardian of the person has:
116-11 (1) the right to have physical possession of the ward
116-12 and to establish the ward's legal domicile;
116-13 (2) the duty of care, control, and protection of the
116-14 ward;
116-15 (3) the duty to provide the ward with clothing, food,
116-16 medical care, and shelter; and
116-17 (4) the power to consent to medical, psychiatric, and
116-18 surgical treatment other than the in-patient psychiatric commitment
116-19 of the ward.
116-20 Sec. 768. GENERAL POWERS AND DUTIES OF GUARDIAN OF THE
116-21 ESTATE. The guardian of the estate of a ward is entitled to the
116-22 possession and management of all property belonging to the ward, to
116-23 collect all debts, rentals, or claims that are due to the ward, to
116-24 enforce all obligations in favor of the ward, and to bring and
116-25 defend suits by or against the ward; but, in the management of the
116-26 estate, the guardian is governed by the provisions of this chapter.
116-27 It is the duty of the guardian of the estate to take care of and
117-1 manage the estate as a prudent person would manage the person's own
117-2 property. The guardian of the estate shall account for all rents,
117-3 profits, and revenues that the estate would have produced by such
117-4 prudent management.
117-5 Sec. 769. SUMMARY OF POWERS OF GUARDIAN OF PERSON AND
117-6 ESTATE. The guardian of both the person of and estate of a ward
117-7 has all the rights and powers and shall perform all the duties of
117-8 the guardian of the person and of the guardian of the estate.
117-9 Sec. 770. CARE OF WARD; COMMITMENT. (a) The guardian of an
117-10 adult may expend funds of the guardianship as provided by court
117-11 order to care for and maintain the incapacitated person. The
117-12 guardian may apply for residential care and services provided by a
117-13 public or private facility on behalf of an incapacitated person who
117-14 has decision-making ability if the person agrees to be placed in
117-15 the facility. The guardian shall report the condition of the
117-16 person to the court at regular intervals at least annually, unless
117-17 the court orders more frequent reports. If the person is receiving
117-18 residential care in a public or private residential care facility,
117-19 the guardian shall include in any report to the court a statement
117-20 as to the necessity for continued care in the facility.
117-21 (b) Except as provided by Subsection (c) or (d) of this
117-22 section, a guardian may not voluntarily admit an incapacitated
117-23 person to a public or private in-patient psychiatric facility or to
117-24 a residential facility operated by the Texas Department of Mental
117-25 Health and Mental Retardation for care and treatment. If care and
117-26 treatment in a psychiatric or a residential facility are necessary,
117-27 the person or the person's guardian may apply for services under
118-1 Section 593.027 or 593.028, Health and Safety Code, or apply to a
118-2 court to commit the person under Subtitle D, Title 7, Health and
118-3 Safety Code (Persons with Mental Retardation Act), Subtitle C,
118-4 Title 7, Health and Safety Code (Texas Mental Health Code), or
118-5 Chapter 462, Health and Safety Code.
118-6 (c) A guardian of a person younger than 16 years of age may
118-7 voluntarily admit an incapacitated person to a public or private
118-8 inpatient psychiatric facility for care and treatment.
118-9 (d) A guardian of a person may voluntarily admit an
118-10 incapacited person to a residential care facility for emergency
118-11 care or respite care under Section 593.027 or 593.028, Health and
118-12 Safety Code.
118-13 SUBPART F. SPECIFIC DUTIES AND POWERS OF GUARDIANS
118-14 Sec. 771. GUARDIAN OF ESTATE: POSSESSION OF PERSONAL
118-15 PROPERTY AND RECORDS. The guardian of an estate, immediately after
118-16 receiving letters of guardianship, shall collect and take into
118-17 possession the personal property, record books, title papers, and
118-18 other business papers of the ward and shall deliver the personal
118-19 property, books, or papers, of the ward to a person who is legally
118-20 entitled to that property when the guardianship has been closed or
118-21 a successor guardian has received letters.
118-22 Sec. 772. COLLECTION OF CLAIMS AND RECOVERY OF PROPERTY.
118-23 (a) Every guardian of an estate shall use ordinary diligence to
118-24 collect all claims and debts due the ward and to recover possession
118-25 of all property of the ward to which the ward has claim or title,
118-26 if there is a reasonable prospect of collecting the claims or of
118-27 recovering the property. If the guardian wilfully neglects to use
119-1 ordinary diligence, the guardian and the sureties on the guardian's
119-2 bond shall be liable, at the suit of any person interested in the
119-3 estate, for the use of the estate, for the amount of the claims or
119-4 for the value of the property that has been lost due to the
119-5 guardian's neglect.
119-6 (b) Except as provided by Subsection (c) of this section, a
119-7 guardian of an estate may enter into a contract to convey, or may
119-8 convey, a contingent interest in any property sought to be
119-9 recovered, not exceeding one-third thereof for services of
119-10 attorneys, subject only to the approval of the court in which the
119-11 estate is being administered.
119-12 (c) A guardian of an estate may convey or contract to convey
119-13 for services of attorneys a contingent interest that exceeds
119-14 one-third of the property sought to be recovered under this section
119-15 only on the approval of the court in which the estate is being
119-16 administered. The court must approve a contract entered into or
119-17 conveyance made under this section before an attorney performs any
119-18 legal services. A contract entered into or conveyance made in
119-19 violation of this section is void, unless the court ratifies or
119-20 reforms the contract or documents relating to the conveyance to the
119-21 extent necessary to cause the contract or conveyance to meet the
119-22 requirements of this section.
119-23 (d) In approving a contract or conveyance under Subsection
119-24 (b) or (c) of this section for services of an attorney, the court
119-25 shall consider:
119-26 (1) the time and labor that will be required, the
119-27 novelty and difficulty of the questions to be involved, and the
120-1 skill that will be required to perform the legal services properly;
120-2 (2) the fee customarily charged in the locality for
120-3 similar legal services;
120-4 (3) the value of property recovered or sought to be
120-5 recovered by the personal representative under this section;
120-6 (4) the benefits to the estate that the attorney will
120-7 be responsible for securing; and
120-8 (5) the experience and ability of the attorney who
120-9 will be performing the services.
120-10 (e) On satisfactory proof to the court, a personal
120-11 representative of an estate is entitled to all necessary and
120-12 reasonable expenses incurred by the personal representative in
120-13 collecting or attempting to collect a claim or debt owed to the
120-14 estate or in recovering or attempting to recover property to which
120-15 the estate has a title or claim.
120-16 Sec. 773. SUIT BY GUARDIAN. A guardian appointed in this
120-17 state may institute suits for the recovery of personal property,
120-18 debts, or damages and suits for title to or possession of land or
120-19 for any right attached to or growing out of the same or for injury
120-20 or damage done. Judgment in those cases shall be conclusive but
120-21 may be set aside by any person interested for fraud or collusion on
120-22 the part of the guardian.
120-23 Sec. 774. EXERCISE OF POWER WITH OR WITHOUT COURT ORDER.
120-24 (a) On application, and if authorized by an order, the guardian of
120-25 the estate may renew or extend any obligation owed by or to the
120-26 ward. On written application to the court and when a guardian of
120-27 the estate deems it is in the interest of the estate, the guardian
121-1 may, if authorized by an order of the court:
121-2 (1) purchase or exchange property;
121-3 (2) take a claim or property for the use and benefit
121-4 of the estate in payment of a debt due or owing to the estate;
121-5 (3) compound a bad or doubtful debt due or owing to
121-6 the estate;
121-7 (4) make a compromise or a settlement in relation to
121-8 property or a claim in dispute or litigation; and
121-9 (5) compromise or pay in full any secured claim that
121-10 has been allowed and approved as required by law against the estate
121-11 by conveying to the holder of the secured claim the real estate or
121-12 personalty securing the claim, in full payment, liquidation, and
121-13 satisfaction of the claim, and in consideration of cancellation of
121-14 a note, deed of trust, mortgage, chattel mortgage, or other
121-15 evidence of a lien that secures the payment of the claim.
121-16 (b) The guardian of the estate of a person, without
121-17 application to or order of the court, may exercise the following
121-18 powers provided, however, that a guardian may apply and obtain an
121-19 order if doubtful of the propriety of the exercise of any such
121-20 power:
121-21 (1) release a lien on payment at maturity of the debt
121-22 secured by the lien;
121-23 (2) vote stocks by limited or general proxy;
121-24 (3) pay calls and assessments;
121-25 (4) insure the estate against liability in appropriate
121-26 cases;
121-27 (5) insure property of the estate against fire, theft,
122-1 and other hazards; and
122-2 (6) pay taxes, court costs, and bond premiums.
122-3 Sec. 775. POSSESSION OF PROPERTY HELD IN COMMON OWNERSHIP.
122-4 If the ward holds or owns any property in common, or as part owner
122-5 with another person, the guardian of the estate is entitled to
122-6 possession of the property of the ward held or owned in common with
122-7 a part owner in the same manner as another owner in common or joint
122-8 owner would be entitled.
122-9 Sec. 776. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF
122-10 WARD. (a) Subject to Section 777 of this code, the court may
122-11 direct the guardian of the person to expend, for the education and
122-12 maintenance of the guardian's ward, a sum in excess of the income
122-13 of the ward's estate. Otherwise, the guardian may not be allowed,
122-14 for the education and maintenance of the ward, more than the net
122-15 income of the estate. When different persons have the guardianship
122-16 of the person and estate of a ward, the guardian of the estate
122-17 shall pay to the guardian of the person a sum that is set by the
122-18 court, at a time specified by the court, for the education and
122-19 maintenance of the ward. If the guardian of the estate fails to
122-20 pay to the guardian of the person the sum set by the court, the
122-21 guardian of the estate shall be compelled to make the payment by
122-22 court order after the guardian is duly cited to appear.
122-23 (b) When a guardian has in good faith expended funds from
122-24 the corpus of the estate of the ward of the guardian for support
122-25 and maintenance for the ward under this section, and when it is not
122-26 convenient or possible for the guardian to first secure court
122-27 approval, if the proof is clear and convincing that the
123-1 expenditures were reasonable and proper, and are expenditures that
123-2 the court would have granted authority to make the expenditures out
123-3 of the corpus, and the ward received the benefits of the
123-4 expenditures, the court may approve the expenditures in the same
123-5 manner as if the expenditures were made by the guardian out of the
123-6 income from the ward's estate. An expenditure under this
123-7 subsection may not exceed $5,000 per ward during an annual
123-8 accounting period, unless the expenditure is made to a nursing home
123-9 in which case the court may ratify any amount.
123-10 Sec. 777. SUMS ALLOWED PARENTS FOR EDUCATION AND MAINTENANCE
123-11 OF MINOR WARD. (a) Except as provided by Subsection (b) of this
123-12 section, a parent who is the guardian of the person of a ward who
123-13 is 17 years of age or younger may not use the income or the corpus
123-14 from the ward's estate for the ward's support, education, or
123-15 maintenance.
123-16 (b) A court with proper jurisdiction may authorize the
123-17 guardian of the person to spend the income or the corpus from the
123-18 ward's estate to support, educate, or maintain the ward if the
123-19 guardian presents clear and convincing evidence to the court that
123-20 the ward's parents are unable without unreasonable hardship to pay
123-21 for all of the expenses related to the ward's support.
123-22 Sec. 778. TITLE OF WARDS NOT TO BE DISPUTED. A guardian or
123-23 the heirs, executors, administrators, or assigns of a guardian may
123-24 not dispute the right of the ward to any property that came into
123-25 the possession of the guardian as guardian of the ward, except
123-26 property that is recovered from the guardian or property on which
123-27 there is a personal action pending.
124-1 Sec. 779. OPERATION OF FARM, RANCH, FACTORY, OR OTHER
124-2 BUSINESS. If the ward owns a farm, ranch, factory, or other
124-3 business and if the farm, ranch, factory, or other business is not
124-4 required to be sold at once for the payment of debts or other
124-5 lawful purposes, the guardian of the estate on order of the court
124-6 shall carry on the operation of the farm, ranch, factory, or other
124-7 business, or cause the same to be done, or rent the same, as shall
124-8 appear to be for the best interests of the estate. In deciding,
124-9 the court shall consider the condition of the estate and the
124-10 necessity that may exist for the future sale of the property or
124-11 business for the payment of a debt, claim, or other lawful
124-12 expenditure and may not extend the time of renting any of the
124-13 property beyond what appears consistent with the maintenance and
124-14 education of a ward or the settlement of the estate of the ward.
124-15 Sec. 780. ADMINISTRATION OF PARTNERSHIP INTEREST BY
124-16 GUARDIAN. If the ward was a partner in a general partnership and
124-17 the articles of partnership provide that, on the incapacity of a
124-18 partner, the guardian of the estate of the partner is entitled to
124-19 the place of the incapacitated partner in the firm, the guardian
124-20 who contracts to come into the partnership shall, to the extent
124-21 allowed by law, be liable to a third person only to the extent of
124-22 the incapacitated partner's capital in the partnership and the
124-23 assets of the estate of the partner that are held by the guardian.
124-24 This section does not exonerate a guardian from liability for the
124-25 negligence of the guardian.
124-26 Sec. 781. BORROWING MONEY. (a) The guardian may mortgage
124-27 or pledge any real or personal property of a guardianship estate by
125-1 deed of trust or otherwise as security for an indebtedness, under
125-2 court order, when necessary for any of the following purposes:
125-3 (1) for the payment of any ad valorem, income, gift,
125-4 or transfer taxes due from a ward, regardless of whether the taxes
125-5 are assessed by a state, a political subdivision of the state, the
125-6 federal government, or a foreign country;
125-7 (2) for the payment of any expenses of administration,
125-8 including sums necessary for the operation of a business, farm, or
125-9 ranch owned by the estate;
125-10 (3) for the payment of any claims allowed and
125-11 approved, or established by suit, against the ward or the estate of
125-12 the ward;
125-13 (4) to renew and extend a valid, existing lien;
125-14 (5) to make improvements or repairs to the real estate
125-15 of the ward if:
125-16 (A) the real estate of the ward is not revenue
125-17 producing but could be made revenue producing by certain
125-18 improvements and repairs; or
125-19 (B) the revenue from the real estate could be
125-20 increased by making improvements or repairs to the real estate;
125-21 (6) court-authorized borrowing of money that the court
125-22 finds to be in the best interests of the ward for the purchase of a
125-23 residence for the ward or a dependent of the ward; and
125-24 (7) if the guardianship is kept open after the death
125-25 of the ward, funeral expenses of the ward and expenses of the
125-26 ward's last illness.
125-27 (b) When it is necessary to borrow money for any of the
126-1 purposes authorized under Subsection (a) of this section, or to
126-2 create or extend a lien on property of the estate as security, a
126-3 sworn application for the authority to borrow money shall be filed
126-4 with the court, stating fully and in detail the circumstances that
126-5 the guardian of the estate believes make necessary the granting of
126-6 the authority. On the filing of an application under this
126-7 subsection, the clerk shall issue and cause to be posted a citation
126-8 to all interested persons, stating the nature of the application
126-9 and requiring the interested persons to appear and show cause why
126-10 the application should not be granted.
126-11 (c) If the court is satisfied by the evidence adduced at the
126-12 hearing on the application that it is in the interest of the ward
126-13 or the ward's estate to borrow money under Subsection (b) of this
126-14 section, or to extend and renew an existing lien, the court shall
126-15 issue an order to that effect, setting out the terms and conditions
126-16 of the authority granted. The term of the loan or renewal shall be
126-17 for the length of time that the court determines to be for the best
126-18 interests of the ward or the ward's estate. If a new lien is
126-19 created on the property of a guardianship estate, the court may
126-20 require that the guardian's general bond be increased, or that an
126-21 additional bond be given, for the protection of the guardianship
126-22 estate and its creditors, as for the sale of real property
126-23 belonging to the estate.
126-24 Sec. 782. POWERS, DUTIES, AND OBLIGATIONS OF GUARDIAN OF
126-25 PERSON ENTITLED TO GOVERNMENT FUNDS. (a) A guardian of the person
126-26 for whom it is necessary to have a guardian appointed to receive
126-27 funds from a governmental agency has the power to administer only
127-1 the funds received from the governmental agency, all earnings,
127-2 interest, or profits derived from the funds, and all property
127-3 acquired with the funds. The guardian has the power to receive the
127-4 funds and pay out the expenses of administering the guardianship
127-5 and the expenses for the support, maintenance, or education of the
127-6 ward or the ward's dependents. Expenditures for the support,
127-7 maintenance, or education of the ward or the ward's dependents may
127-8 not exceed $10,000 during any 12-month period without the court's
127-9 approval.
127-10 (b) All acts performed before September 1, 1993, by
127-11 guardians of the estate of a person for whom it is necessary to
127-12 have a guardian appointed to receive and disburse funds that are
127-13 due the person from a governmental source or agency are validated
127-14 if the acts are performed in conformance with orders of a court
127-15 that has venue with respect to the support, maintenance, and
127-16 education of the ward or the ward's dependents and the investment
127-17 of surplus funds of the ward under this chapter and if the validity
127-18 of the act is not an issue in a probate proceeding or civil lawsuit
127-19 that is pending on September 1, 1993.
127-20 SUBPART G. CLAIMS PROCEDURES
127-21 Sec. 783. NOTICE BY GUARDIAN OF APPOINTMENT. (a) Within
127-22 one month after receiving letters, personal representatives of
127-23 estates shall send to the comptroller of public accounts by
127-24 certified or registered mail if the decedent remitted or should
127-25 have remitted taxes administered by the comptroller of public
127-26 accounts and publish in some newspaper, printed in the county where
127-27 the letters were issued, if there be one, a notice requiring all
128-1 persons having claims against the estate being administered to
128-2 present the same within the time prescribed by law. The notice
128-3 must include the time of issuance of letters held by the
128-4 representative, the address to which claims may be presented, and
128-5 an instruction of the representative's choice that claims be
128-6 addressed in care of the representative, in care of the
128-7 representative's attorney, or in care of "Representative, Estate of
128-8 _________________" (naming the estate).
128-9 (b) A copy of the printed notice, with the affidavit of the
128-10 publisher, duly sworn to and subscribed before a proper officer, to
128-11 the effect that the notice was published as provided in this
128-12 chapter for the service of citation or notice by publication, shall
128-13 be filed in the court in which the cause is pending.
128-14 (c) When no newspaper is printed in the county, the notice
128-15 shall be posted and the return made and filed as required by this
128-16 chapter.
128-17 Sec. 784. NOTICE TO HOLDERS OF RECORDED CLAIMS. (a) Within
128-18 four months after receiving letters, the guardian of an estate
128-19 shall give notice of the issuance of the letters to each and every
128-20 person having a claim for money against the estate of a ward if the
128-21 claim is secured by a deed of trust, mortgage, or vendor's,
128-22 mechanic's or other contractor's lien on real estate belonging to
128-23 the estate.
128-24 (b) Within four months after receiving letters, the guardian
128-25 of an estate shall give notice of the issuance of the letters to
128-26 each person having an outstanding claim for money against the
128-27 estate of a ward if the guardian has actual knowledge of the claim.
129-1 (c) The notice stating the original grant of letter shall be
129-2 given by mailing the notice by certified mail or registered letter,
129-3 with return receipt requested, addressed to the record holder of
129-4 the indebtedness or claim at the last known post office address of
129-5 the record holder.
129-6 (d) A copy of each notice required by Subsection (a) of this
129-7 section, with the return receipt and an affidavit of the
129-8 representative, stating that the notice was mailed as required by
129-9 law, giving the name of the person to whom the notice was mailed,
129-10 if not shown on the notice or receipt, shall be filed in the court
129-11 from which letters were issued.
129-12 Sec. 785. ONE NOTICE SUFFICIENT; PENALTY FOR FAILURE TO GIVE
129-13 NOTICE. (a) If the notice required by Section 784 of this code
129-14 has been given by a former representative, or by one when several
129-15 representatives are acting, the notice given by the former
129-16 representative or co-representative is sufficient and need not be
129-17 repeated by any successor or co-representative.
129-18 (b) If the guardian fails to give the notice required in
129-19 other sections of this chapter or to cause the notices to be given,
129-20 the guardian and the sureties on the bond of the guardian shall be
129-21 liable for any damage that any person suffers because of the
129-22 neglect, unless it appears that the person had notice otherwise.
129-23 Sec. 786. Claims Against Wards. (a) A claim may be
129-24 presented to the guardian of the estate at any time when the estate
129-25 is not closed and when suit on the claim has not been barred by the
129-26 general statutes of limitation.
129-27 (b) A claim against a ward on which a suit is barred by a
130-1 general statute of limitation applicable to the claim may not be
130-2 allowed by a guardian. If allowed by the guardian and the court is
130-3 satisfied that limitation has run, the claim shall be disapproved.
130-4 Sec. 787. Tolling of General Statutes of Limitation. The
130-5 general statutes of limitation are tolled:
130-6 (1) by filing a claim that is legally allowed and
130-7 approved; or
130-8 (2) by bringing a suit on a rejected and disapproved
130-9 claim not later than the 90th day after the date of rejection or
130-10 disapproval.
130-11 Sec. 788. Claims Must Be Authenticated. Except as provided
130-12 by this section, with respect to the payment of an unauthenticated
130-13 claim by a guardian, a guardian of the estate may not allow and the
130-14 court may not approve a claim for money against the estate, unless
130-15 the claim is supported by an affidavit that the claim is just and
130-16 that all legal offsets, payments, and credits known to the affiant
130-17 have been allowed. If the claim is not founded on a written
130-18 instrument or account, the affidavit must also state the facts on
130-19 which the claim is founded. A photostatic copy of an exhibit or
130-20 voucher necessary to prove a claim under this section may be
130-21 offered with and attached to the claim instead of the original.
130-22 Sec. 789. When Defects of Form Are Waived. Any defect of
130-23 form or claim of insufficiency of exhibits or vouchers presented is
130-24 deemed waived by the guardian unless written objection to the form,
130-25 exhibit, or voucher is made not later than the 30th day after the
130-26 date of presentment of the claim and is filed with the county
130-27 clerk.
131-1 Sec. 790. Evidence Concerning Lost or Destroyed Claims. If
131-2 evidence of a claim is lost or destroyed, the claimant or a
131-3 representative of the claimant may make affidavit to the fact of
131-4 the loss or destruction, stating the amount, date, and nature of
131-5 the claim and when due, that the claim is just, that all legal
131-6 offsets, payments, and credits known to the affiant have been
131-7 allowed, and that the claimant is still the owner of the claim.
131-8 The claim must be proved by disinterested testimony taken in open
131-9 court, or by oral or written deposition, before the claim is
131-10 approved. If the claim is allowed or approved without the
131-11 affidavit or if the claim is approved without satisfactory proof,
131-12 the allowance or approval is void.
131-13 Sec. 791. Authentication of Claim by Others Than Individual
131-14 Owners. The cashier, treasurer, or managing official of a
131-15 corporation shall make the affidavit required to authenticate a
131-16 claim of the corporation. When an affidavit is made by an officer
131-17 of a corporation, or by an executor, administrator, guardian,
131-18 trustee, assignee, agent, or attorney, it is sufficient to state in
131-19 the affidavit that the person making the affidavit has made
131-20 diligent inquiry and examination and that the person believes that
131-21 the claim is just and that all legal offsets, payments, and credits
131-22 made known to the person making the affidavit have been allowed.
131-23 Sec. 792. Guardian's Payment of Unauthenticated Claims. A
131-24 guardian may pay an unauthenticated claim against the estate of the
131-25 guardian's ward that the guardian believes to be just, but the
131-26 guardian and the sureties on the bond of the guardian shall be
131-27 liable for the amount of any payment of the claim if the court
132-1 finds that the claim is not just.
132-2 Sec. 793. Method of Handling Secured Claims. (a) When a
132-3 secured claim against a ward is presented, the claimant shall
132-4 specify in the claim, in addition to all other matters required to
132-5 be specified in claims:
132-6 (1) whether the claim shall be allowed and approved as
132-7 a matured secured claim to be paid in due course of administration,
132-8 in which event it shall be so paid if allowed and approved; or
132-9 (2) whether the claim shall be allowed, approved, and
132-10 fixed as a preferred debt and lien against the specific property
132-11 securing the indebtedness and paid according to the terms of the
132-12 contract that secured the lien, in which event it shall be so
132-13 allowed and approved if it is a valid lien; provided, however, the
132-14 guardian may pay the claim prior to maturity if it is in the best
132-15 interests of the estate to do so.
132-16 (b) If a secured claim is not presented within the time
132-17 provided by law, it shall be treated as a claim to be paid in
132-18 accordance with Subsection (a)(2) of this section.
132-19 (c) When an indebtedness has been allowed and approved under
132-20 Subsection (a)(2) of this section, no further claim shall be made
132-21 against other assets of the estate because of the indebtedness, but
132-22 the claim remains a preferred lien against the property securing
132-23 the claim, and the property remains security for the debt in any
132-24 distribution or sale of the property before final maturity and
132-25 payment of the debt.
132-26 (d) If property that secures a claim allowed, approved, and
132-27 fixed under Subsection (a)(2) of this section is not sold or
133-1 distributed not later than the 12th month after the date letters of
133-2 guardianship are granted, the guardian of the estate shall promptly
133-3 pay all maturities that have accrued on the debt according to the
133-4 terms of the maturities and shall perform all the terms of any
133-5 contract securing the maturities. If the guardian defaults in the
133-6 payment or performance, the court, on motion of the claim holder,
133-7 shall require the sale of the property subject to the unmatured
133-8 part of the debt and apply the proceeds of the sale to the
133-9 liquidation of the maturities or, at the option of the claim
133-10 holder, a motion may be made in a like manner to require the sale
133-11 of the property free of the lien and to apply the proceeds to the
133-12 payment of the whole debt.
133-13 Sec. 794. Claims Providing for Attorney's Fees. If the
133-14 instrument that evidences or supports a claim provides for
133-15 attorney's fees, the claimant may include as a part of the claim
133-16 the portion of the fee that the claimant has paid or contracted to
133-17 pay to an attorney to prepare, present, and collect the claim.
133-18 Sec. 795. Depositing Claims With Clerk. A claim may also be
133-19 presented by depositing the claim, with vouchers and necessary
133-20 exhibits and affidavit attached to the claim, with the clerk. The
133-21 clerk, on receiving the claim, shall advise the guardian of the
133-22 estate or the guardian's attorney by letter mailed to the last
133-23 known address of the guardian of the deposit of the claim. If the
133-24 guardian fails to act on the claim within 30 days after it is
133-25 filed, the claim is presumed to be rejected. Failure of the clerk
133-26 to give notice as required under this section does not affect the
133-27 validity of the presentment or the presumption of rejection of the
134-1 claim because not acted on within the 30-day period.
134-2 Sec. 796. Memorandum of Allowance or Rejection of Claim.
134-3 When a duly authenticated claim against a guardianship estate is
134-4 presented to the guardian or filed with the clerk as provided by
134-5 this subpart, the guardian shall, not later than the 30th day after
134-6 the date the claim is presented or filed, endorse or annex to the
134-7 claim a memorandum signed by the guardian stating the time of
134-8 presentation or filing of the claim and that the guardian allows or
134-9 rejects the claim, or what portion of the claim the guardian allows
134-10 or rejects.
134-11 Sec. 797. Failure to Endorse or Annex Memorandum. The
134-12 failure of a guardian of an estate to endorse on or annex to a
134-13 claim presented to the guardian, or the failure of a guardian to
134-14 allow or reject the claim or portion of the claim within 30 days
134-15 after the claim was presented constitutes a rejection of the claim.
134-16 If the claim is later established by suit, the costs shall be taxed
134-17 against the guardian, individually, or the guardian may be removed
134-18 as in other cases of removal on the written complaint of any person
134-19 interested in the claim, after personal service of citation,
134-20 hearing, and proof.
134-21 Sec. 798. Claims Entered In Docket. After a claim against a
134-22 ward's estate has been presented to and allowed by the guardian,
134-23 either in whole or in part, the claim shall be filed with the
134-24 county clerk of the proper county who shall enter it on the claim
134-25 docket.
134-26 Sec. 799. Contest of Claims, Action by Court, and Appeals.
134-27 (a) Any person interested in a ward, at any time before the court
135-1 has acted on a claim, may appear and object in writing to the
135-2 approval of the claim, or any part of the claim. The parties are
135-3 entitled to process for witnesses, and the court shall hear proof
135-4 and render judgment as in ordinary suits.
135-5 (b) The court shall either approve in whole or in part or
135-6 reject a claim that has been allowed and entered on the claim
135-7 docket for a period of 10 days and shall at the same time classify
135-8 the claim.
135-9 (c) Although a claim may be properly authenticated and
135-10 allowed, if the court is not satisfied that it is just, the court
135-11 shall examine the claimant and the guardian under oath and hear
135-12 other evidence necessary to determine the issue. If after the
135-13 examination and hearing the court is not convinced that the claim
135-14 is just, the court shall disapprove the claim.
135-15 (d) When the court has acted on a claim, the court shall
135-16 endorse on or annex to the claim a written memorandum dated and
135-17 signed officially that states the exact action taken by the court
135-18 on the claim, whether the court approved or disapproved the claim
135-19 or approved in part or rejected in part the claim, and that states
135-20 the classification of the claim. An order under this subsection
135-21 has the force and effect of a final judgment.
135-22 (e) When a claimant or any person interested in a ward is
135-23 dissatisfied with the action of the court on a claim, the claimant
135-24 or person interested may appeal the action to the courts of
135-25 appeals, as from other judgments of the county court in probate
135-26 matters.
135-27 Sec. 800. SUIT ON REJECTED CLAIM. When a claim or a part of
136-1 a claim has been rejected by the guardian, the claimant shall
136-2 institute suit on the claim in the court of original probate
136-3 jurisdiction in which the guardianship is pending or in any other
136-4 court of proper jurisdiction not later than the 90th day after the
136-5 date of the rejection of the claim or the claim is barred. When a
136-6 rejected claim is sued on, the endorsement made on or annexed to
136-7 the claim is taken to be true without further proof, unless denied
136-8 under oath. When a rejected claim or part of a claim has been
136-9 established by suit, no execution shall issue but the judgment
136-10 shall be certified not later than the 30th day after the date of
136-11 rendition if the judgment is from a court other than the court of
136-12 original probate jurisdiction, filed in the court in which the
136-13 cause is pending entered on the claim docket, classified by the
136-14 court, and handled as if originally allowed and approved in due
136-15 course of administration.
136-16 Sec. 801. Presentment of Claims a Prerequisite for Judgment.
136-17 A judgment may not be rendered in favor of a claimant on any claim
136-18 for money that has not been legally presented to the guardian of
136-19 the estate of the ward and rejected by the guardian or by the
136-20 court, in whole or in part.
136-21 Sec. 802. Costs of Suit With Respect to Claims. All costs
136-22 incurred in the probate court with respect to claims are taxed as
136-23 follows:
136-24 (1) if allowed and approved, the guardianship estate
136-25 shall pay the costs;
136-26 (2) if allowed, but disapproved, the claimant shall
136-27 pay the costs;
137-1 (3) if rejected, but established by suit, the
137-2 guardianship estate shall pay the costs;
137-3 (4) if rejected, but not established by suit, the
137-4 claimant shall pay the costs; or
137-5 (5) in suits to establish a claim after rejection in
137-6 part, if the claimant fails to recover judgment for a greater
137-7 amount than was allowed or approved, the claimant shall pay all
137-8 costs.
137-9 Sec. 803. Claims by Guardians. (a) A claim that a guardian
137-10 of the person or estate held against the ward at the time of the
137-11 appointment of the guardian, or that has since accrued, shall be
137-12 verified by affidavit as required in other cases and presented to
137-13 the clerk of the court in which the guardianship is pending. The
137-14 clerk shall enter the claim on the claim docket, after which it
137-15 shall take the same course as other claims.
137-16 (b) When a claim by a guardian has been filed with the court
137-17 within the required time, the claim shall be entered on the claim
137-18 docket and acted on by the court in the same manner as in other
137-19 cases. When the claim has been acted on by the court, an appeal
137-20 from the judgment of the court may be taken as in other cases.
137-21 Sec. 804. Claims Not to Be Paid Unless Approved. Except as
137-22 provided for payment at the risk of a guardian of an
137-23 unauthenticated claim, a claim for money against the estate of a
137-24 ward or any part of a claim may not be paid until it has been
137-25 approved by the court or established by the judgment of a court of
137-26 competent jurisdiction.
137-27 Sec. 805. Order of Payment of Claims. (a) The guardian
138-1 shall pay a claim against the estate of the guardian's ward that
138-2 has been allowed and approved or established by suit, as soon as
138-3 practicable, in the following order:
138-4 (1) expenses for the care, maintenance, and education
138-5 of the ward or the ward's dependents;
138-6 (2) funeral expenses of the ward and expenses of the
138-7 ward's last illness, if the guardianship is kept open after the
138-8 death of the ward as provided under this chapter, except that any
138-9 claim against the estate of a ward that has been allowed and
138-10 approved or established by suit before the death of the ward shall
138-11 be paid before the funeral expenses and expenses of the last
138-12 illness;
138-13 (3) expenses of administration; and
138-14 (4) other claims against the ward or the ward's
138-15 estate.
138-16 (b) A claimant whose claim has not been paid may petition
138-17 the court for determination of the claim at any time before it is
138-18 barred by the applicable statute of limitations and on due proof
138-19 procure an order for its allowance and payment from the estate.
138-20 Sec. 806. Deficiency of Assets. When there is a deficiency
138-21 of assets to pay all claims of the same class, the claims in the
138-22 same class shall be paid pro rata, as directed by the court, and in
138-23 the order directed. A guardian may not be allowed to pay any
138-24 claims, whether the estate is solvent or insolvent, except with the
138-25 pro rata amount of the funds of the guardianship estate that have
138-26 come to hand.
138-27 Sec. 807. GUARDIAN NOT TO PURCHASE CLAIMS. A guardian may
139-1 not purchase for the guardian's own use or for any purposes
139-2 whatsoever a claim against the guardianship the guardian
139-3 represents. On written complaint by a person interested in the
139-4 guardianship estate and satisfactory proof of violation of this
139-5 provision, the court after citation and hearing shall enter its
139-6 order cancelling the claim and no part of the claim shall be paid
139-7 out of the guardianship. The judge may remove the guardian for a
139-8 violation of this section.
139-9 Sec. 808. PROCEEDS OF SALE OF MORTGAGED PROPERTY. When a
139-10 guardian has on hand the proceeds of a sale that has been made for
139-11 the satisfaction of a mortgage or other lien and the proceeds, or
139-12 any part of the proceeds, are not required for the payment of any
139-13 debts against the estate that have a preference over the mortgage
139-14 or other lien, the guardian shall pay the proceeds to a holder of
139-15 the mortgage or other lien. If the guardian fails to pay the
139-16 proceeds as required by this section, the holder, on proof of the
139-17 mortgage or other lien, may obtain an order from the court
139-18 directing the payment to be made.
139-19 Sec. 809. Liability for Nonpayment of Claims. (a) If a
139-20 guardian of an estate fails to pay on demand any money ordered by
139-21 the court to be paid to any person, except to the state treasury,
139-22 when there are funds of the guardianship estate available, the
139-23 person or claimant entitled to the payment, on affidavit of the
139-24 demand and failure to pay, is authorized to have execution issued
139-25 against the property of the guardianship for the amount due, with
139-26 interest and costs.
139-27 (b) On return of the execution not satisfied, or merely on
140-1 the affidavit of demand and failure to pay, the court may cite the
140-2 guardian and the sureties on the bond of the guardian to show cause
140-3 why the guardian or the sureties should not be held liable for the
140-4 debt, interest, costs, or damages. On return of citation duly
140-5 served, if good cause to the contrary is not shown, the court shall
140-6 render judgment against the guardian and sureties that are cited
140-7 under this subsection in favor of the holder of the claim for the
140-8 unpaid amount ordered to be paid or established by suit, with
140-9 interest and costs, and for damages on the amount neglected to be
140-10 paid, at the rate of five percent per month for each month or
140-11 fraction of a month that the payment was neglected to be paid after
140-12 demand was made for payment. The damages may be collected in any
140-13 court of competent jurisdiction.
140-14 SUBPART H. SALES
140-15 Sec. 811. Court Must Order Sales. Except as provided by
140-16 this subpart, the sale of any property of the ward may not be made
140-17 without an order of court authorizing the sale. The court may
140-18 order property sold for cash or on credit, at public auction or
140-19 privately, as it may consider most to the advantage of the estate,
140-20 except when otherwise specifically provided in this chapter.
140-21 Sec. 812. CERTAIN PERSONAL PROPERTY TO BE SOLD. (a) The
140-22 guardian of an estate, after approval of inventory and
140-23 appraisement, shall promptly apply for an order of the court to
140-24 sell at public auction or privately, for cash or on credit not
140-25 exceeding six months, all of the estate that is liable to perish,
140-26 waste, or deteriorate in value or that will be an expense or
140-27 disadvantage to the estate if kept. Property exempt from forced
141-1 sale, a specific legacy, or personal property necessary to carry on
141-2 a farm, ranch, factory, or any other business that it is thought
141-3 best to operate, may not be included in a sale under this section.
141-4 (b) In determining whether to order the sale of an asset
141-5 under Subsection (a) of this section, the court shall consider:
141-6 (1) the guardian's duty to take care of and manage the
141-7 estate as a person of ordinary prudence, discretion, and
141-8 intelligence would exercise in the management of the person's own
141-9 affairs; and
141-10 (2) whether the asset constitutes an asset that a
141-11 trustee is authorized to invest under Section 113.056 or Subchapter
141-12 F, Chapter 113, Property Code.
141-13 Sec. 813. Sales of Other Personal Property. On application
141-14 by the guardian of the estate or by any interested person, the
141-15 court may order the sale of any personal property of the estate not
141-16 required to be sold by Section 812 of this code, including growing
141-17 or harvested crops or livestock but not including exempt property,
141-18 if the court finds that the sale of the property would be in the
141-19 best interests of the ward or the ward's estate in order to pay
141-20 expenses of the care, maintenance, and education of the ward or the
141-21 ward's dependents, expenses of administration, allowances, or
141-22 claims against the ward or the ward's estate, and funeral expenses
141-23 of the ward and expenses of the ward's last illness, if the
141-24 guardianship is kept open after the death of the ward, from the
141-25 proceeds of the sale of the property. Insofar as possible,
141-26 applications and orders for the sale of personal property must
141-27 conform to the requirements set forth under this chapter for
142-1 applications and orders for the sale of real estate.
142-2 Sec. 814. Special Provisions Pertaining to Livestock. When
142-3 the guardian of an estate has in the guardian's possession any
142-4 livestock that the guardian deems necessary or to the advantage of
142-5 the estate to sell, the guardian may, in addition to any other
142-6 method provided by law for the sale of personal property, obtain
142-7 authority from the court in which the estate is pending to sell the
142-8 livestock through a bonded livestock commission merchant or a
142-9 bonded livestock auction commission merchant. On written and sworn
142-10 application by the guardian or by any person interested in the
142-11 estate that describes the livestock sought to be sold and that sets
142-12 out the reasons why it is deemed necessary or to the advantage of
142-13 the estate that the application be granted, the court may authorize
142-14 the sale. The court shall consider the application and may hear
142-15 evidence for or against the application, with or without notice, as
142-16 the facts warrant. If the application is granted, the court shall
142-17 enter its order to that effect and shall authorize delivery of the
142-18 livestock to any bonded livestock commission merchant or bonded
142-19 livestock auction commission merchant for sale in the regular
142-20 course of business. The commission merchant shall be paid his
142-21 usual and customary charges, not to exceed three percent of the
142-22 sale price, for the sale of the livestock. A report of the sale,
142-23 supported by a verified copy of the merchant's account of sale,
142-24 shall be made promptly by the guardian to the court, but no order
142-25 of confirmation by the court is required to pass title to the
142-26 purchaser of the livestock.
142-27 Sec. 815. Sales of Personal Property at Public Auction. All
143-1 sales of personal property at public auction shall be made after
143-2 notice has been issued by the guardian of the estate and posted as
143-3 in case of posting for original proceedings in probate, unless the
143-4 court shall otherwise direct.
143-5 Sec. 816. Sales of Personal Property on Credit. No more
143-6 than six months' credit may be allowed when personal property is
143-7 sold at public auction, based on the date of the sale. The
143-8 purchaser shall be required to give his note for the amount due,
143-9 with good and solvent personal security, before delivery of the
143-10 property can be made to the purchaser, but security may be waived
143-11 if delivery is not to be made until the note, with interest, has
143-12 been paid.
143-13 Sec. 817. SALE OF MORTGAGED PROPERTY. On the filing of a
143-14 written application, a creditor who holds a claim that is secured
143-15 by a valid mortgage or other lien and that has been allowed and
143-16 approved or established by suit may obtain from the court in which
143-17 the guardianship is pending an order that the property, or so much
143-18 of the property as necessary to satisfy the creditor's claim, shall
143-19 be sold. On the filing of the application, the clerk shall issue
143-20 citation requiring the guardian of the estate to appear and show
143-21 cause why an application filed under this section should not be
143-22 granted. If it appears to the court that it would be advisable to
143-23 discharge the lien out of the general assets of the estate or that
143-24 it be refinanced, the court may so order. Otherwise, the court
143-25 shall grant the application and order that the property be sold at
143-26 public or private sale, as the court considers best, as in ordinary
143-27 cases of sales of real estate.
144-1 Sec. 818. Sales of Personal Property Reported; Decree Vests
144-2 Title. All sales of personal property shall be reported to the
144-3 court. The laws regulating the confirmation or disapproval of
144-4 sales of real estate apply to sales of personal property, but no
144-5 conveyance shall be necessary. The decree confirming the sale of
144-6 personal property shall vest the right and title of the estate of
144-7 the ward in the purchaser who has complied with the terms of the
144-8 sale and shall be prima facie evidence that all requirements of the
144-9 law in making the sale have been met. The guardian of an estate
144-10 may, on request, issue a bill of sale without warranty to the
144-11 purchaser as evidence of title. The expense of the bill of sale if
144-12 requested is to be borne by the purchaser.
144-13 Sec. 819. Selection of Real Property Sold for Payment of
144-14 Debts. Real property of the ward that is selected to be sold for
144-15 the payment of expenses or claims shall be that property that the
144-16 court deems most advantageous to the guardianship to be sold.
144-17 Sec. 820. Application for Sale of Real Estate. An
144-18 application may be made to the court for an order to sell real
144-19 property of the estate when it appears necessary or advisable in
144-20 order to:
144-21 (1) pay expenses of administration, allowances, and
144-22 claims against the ward or the ward's estate, and to pay funeral
144-23 expenses of the ward and expenses of the ward's last illness, if
144-24 the guardianship is kept open after the death of the ward;
144-25 (2) make up the deficiency when the income of a ward's
144-26 estate, the personal property of the ward's estate, and the
144-27 proceeds of previous sales, are insufficient to pay for the
145-1 education and maintenance of the ward or to pay debts against the
145-2 estate;
145-3 (3) dispose of property of the ward's estate that
145-4 consists in whole or in part of an undivided interest in real
145-5 estate when it is deemed in the best interests of the estate to
145-6 sell the interest;
145-7 (4) dispose of real estate of a ward, any part of
145-8 which is nonproductive or does not produce sufficient revenue to
145-9 make a fair return on the value of the real estate, when the
145-10 improvement of the real estate with a view to making it productive
145-11 is not deemed advantageous or advisable and it appears that the
145-12 sale of the real estate and the investment of the money derived
145-13 from the sale of the real estate would be in the best interests of
145-14 the estate; or
145-15 (5) conserve the estate of a ward by selling mineral
145-16 interest or royalties on minerals in place owned by a ward.
145-17 Sec. 821. CONTENTS OF APPLICATION FOR SALE OF REAL ESTATE.
145-18 An application for the sale of real estate shall be in writing,
145-19 must describe the real estate or an interest in or part of the real
145-20 estate sought to be sold, and shall be accompanied by an exhibit,
145-21 verified by affidavit that shows fully and in detail:
145-22 (1) the condition of the estate;
145-23 (2) the charges and claims that have been approved or
145-24 established by suit, or that have been rejected and may be
145-25 established later;
145-26 (3) the amount of each claim that has been approved or
145-27 established by suit, or that has been rejected but may be
146-1 established later;
146-2 (4) the property of the estate remaining on hand
146-3 liable for the payment of those claims; and
146-4 (5) any other facts that show the necessity or
146-5 advisability of the sale.
146-6 Sec. 822. Setting of Hearing on Application. When an
146-7 application for the sale of real estate is filed, it shall
146-8 immediately be called to the attention of the judge by the clerk.
146-9 The judge shall designate in writing a day for hearing the
146-10 application, any opposition to the application, and any application
146-11 for the sale of other land, with the evidence pertaining to the
146-12 application. The judge may, by entries on the docket, continue the
146-13 hearing from time to time until the judge is satisfied concerning
146-14 the application.
146-15 Sec. 823. CITATION AND RETURN ON APPLICATION. On the filing
146-16 of an application for the sale of real estate under Section 820 of
146-17 this code and exhibit, the clerk shall issue a citation to all
146-18 persons interested in the guardianship that describes the land or
146-19 interest or part of the land or interest sought to be sold and that
146-20 requires the persons to appear at the time set by the court as
146-21 shown in the citation and show cause why the sale should not be
146-22 made, if they so elect. Service of citation shall be by posting.
146-23 Sec. 824. Opposition to Application. When an application
146-24 for an order of sale is made, a person interested in the
146-25 guardianship, before an order of sale is made by the court, may
146-26 file the person's opposition to the sale, in writing, or may make
146-27 application for the sale of other property of the estate.
147-1 Sec. 825. ORDER OF SALE. If satisfied on hearing that the
147-2 sale of the property of the guardianship described in the
147-3 application made under Section 820 of this code is necessary or
147-4 advisable, the court shall order the sale to be made. Otherwise,
147-5 the court may deny the application and, if the court deems best,
147-6 may order the sale of other property the sale of which would be
147-7 more advantageous to the estate. An order for the sale of real
147-8 estate must specify:
147-9 (1) the property to be sold, giving a description that
147-10 will identify the property;
147-11 (2) whether the property is to be sold at public
147-12 auction or at private sale, and, if at public auction, the time and
147-13 place of the sale;
147-14 (3) the necessity or advisability of the sale and its
147-15 purpose;
147-16 (4) except in cases in which no general bond is
147-17 required, that, having examined the general bond of the
147-18 representative of the estate, the court finds it to be sufficient
147-19 as required by law, or finds the bond to be insufficient and
147-20 specifies the necessary or increased bond;
147-21 (5) that the sale shall be made and the report
147-22 returned in accordance with law; and
147-23 (6) the terms of the sale.
147-24 Sec. 826. Procedure When Guardian Neglects to Apply for
147-25 Sale. When the guardian of an estate neglects to apply for an
147-26 order to sell sufficient property to pay the charges and claims
147-27 against the estate that have been allowed and approved or
148-1 established by suit, an interested person, on written application,
148-2 may cause the guardian to be cited to appear and make a full
148-3 exhibit of the condition of the estate, and show cause why a sale
148-4 of the property should not be ordered. On hearing an application
148-5 made under this section, if the court is satisfied that a sale of
148-6 the property is necessary or advisable in order to satisfy the
148-7 claims, it shall enter an order of sale as provided by Section 825
148-8 of this code.
148-9 Sec. 827. Permissible Terms of Sale of Real Estate. (a)
148-10 The real estate may be sold for cash, or for part cash and part
148-11 credit, or the equity in land securing an indebtedness may be sold
148-12 subject to the indebtedness, or with an assumption of the
148-13 indebtedness, at public or private sale, as appears to the court to
148-14 be in the best interests of the estate. When real estate is sold
148-15 partly on credit, the cash payment may not be less than one-fifth
148-16 of the purchase price, and the purchaser shall execute a note for
148-17 the deferred payments payable in monthly, quarterly, semiannual or
148-18 annual installments, of the amounts as appear to the court to be
148-19 for the best interests of the guardianship, to bear interest from
148-20 date at a rate of not less than four percent per annum, payable as
148-21 provided in the note. Default in the payment of principal or
148-22 interest, or any part of the payment when due, at the election of
148-23 the holder of the note, matures the whole debt. The note shall be
148-24 secured by vendor's lien retained in the deed and in the note on
148-25 the property sold and shall be further secured by deed of trust on
148-26 the property sold, with the usual provisions for foreclosure and
148-27 sale on failure to make the payments provided in the deed and
149-1 notes.
149-2 (b) When an estate owning real estate by virtue of
149-3 foreclosure of a vendor's lien or mortgage belonging to the estate
149-4 either by judicial sale or by a foreclosure suit, by sale under
149-5 deed of trust, or by acceptance of a deed in cancellation of a lien
149-6 or mortgage owned by the estate, and it appears to the court that
149-7 an application to redeem the property foreclosed on has been made
149-8 by the former owner of the real estate to any corporation or agency
149-9 created by any act of the Congress of the United States or of this
149-10 state in connection with legislation for the relief of owners of
149-11 mortgaged or encumbered homes, farms, ranches, or other real estate
149-12 and that it would be in the best interests of the estate to own
149-13 bonds of one of the above named federal or state corporations or
149-14 agencies instead of the real estate, then on proper application and
149-15 proof, the court may dispense with the provisions of credit sales
149-16 as provided by Subsection (a) of this section, and may order
149-17 reconveyance of the property to the former mortgage debtor, or
149-18 former owner, reserving vendor's lien notes for the total amount of
149-19 the indebtedness due or for the total amount of bonds that the
149-20 corporation or agency above named is under its rules and
149-21 regulations allowed to advance. On obtaining the order, it shall
149-22 be proper for the guardian to endorse and assign the notes so
149-23 obtained over to any one of the corporations or agencies above
149-24 named in exchange for bonds of that corporation or agency.
149-25 Sec. 828. Public Sale of Real Estate. (a) Except as
149-26 otherwise provided by this chapter, all public sales of real estate
149-27 shall be advertised by the guardian of the estate by a notice
150-1 published in the county in which the estate is pending, as provided
150-2 by this chapter for publication of notices or citations. A
150-3 reference in the notice shall be made to the order of sale, the
150-4 time, place, and the required terms of sale, and a brief
150-5 description of the property to be sold. A reference made under
150-6 this section does not have to contain field notes, but if the real
150-7 estate consists of rural property, the name of the original survey,
150-8 the number of acres, its locality in the county, and the name by
150-9 which the land is generally known must be contained in the
150-10 reference.
150-11 (b) All public sales of real estate shall be made at public
150-12 auction to the highest bidder.
150-13 (c) All public sales of real estate shall be made in the
150-14 county in which the guardianship proceedings are pending, at the
150-15 courthouse door of the county, or at another place in the county
150-16 where sales of real estate are specifically authorized to be made,
150-17 on the first Tuesday of the month after publication of notice has
150-18 been completed, between the hours of 10 a.m. and 4 p.m. If deemed
150-19 advisable by the court, the court may order the sale to be made in
150-20 the county in which the land is located, in which event notice
150-21 shall be published both in that county and in the county in which
150-22 the proceedings are pending.
150-23 (d) If a sale is not completed on the day advertised, the
150-24 sale may be continued from day to day by making an oral public
150-25 announcement of the continuance at the conclusion of the sale each
150-26 day. The continued sale is to be made within the same hours as
150-27 prescribed by Subsection (c) of this section. If sales are so
151-1 continued, the fact shall be shown in the report of sale made to
151-2 the court.
151-3 (e) When a person who bids off property of a guardianship
151-4 estate offered for sale at public auction fails to comply with the
151-5 terms of sale, the property shall be readvertised and sold without
151-6 any further order. The person who defaults shall be liable to pay
151-7 to the guardian of the estate, for the benefit of the estate, 10
151-8 percent of the amount of the person's bid and any deficiency in
151-9 price on the second sale. The guardian shall recover the amounts
151-10 by suit in any court in the county in which the sale was made that
151-11 has jurisdiction over the amount claimed.
151-12 Sec. 829. Private Sale of Real Estate. All private sales of
151-13 real estate shall be made in the manner the court directs in its
151-14 order of sale, and no further advertising, notice, or citation
151-15 concerning the sale shall be required unless the court shall direct
151-16 otherwise.
151-17 Sec. 830. Sales of Easements and Rights of Way. The
151-18 guardian may sell and convey easements and rights of way on, under,
151-19 and over the land of a guardianship estate that is being
151-20 administered under orders of a court, regardless of whether the
151-21 proceeds of the sale are required for payment of charges or claims
151-22 against the estate, or for other lawful purposes. The procedure
151-23 for the sale is the same as provided by law for a sale of real
151-24 property of wards at private sale.
151-25 Sec. 831. Guardian Purchasing Property of the Estate. (a)
151-26 Except as provided by Subsection (b) or (c) of this section, the
151-27 guardian of an estate may not purchase, directly or indirectly, any
152-1 property of the estate sold by the guardian, or by any
152-2 co-representative of a guardian.
152-3 (b) A guardian may purchase property from the estate in
152-4 compliance with the terms of a written executory contract signed by
152-5 the ward before the ward became incapacitated, including a contract
152-6 for deed, earnest money contract, buy/sell agreement, or stock
152-7 purchase or redemption agreement.
152-8 (c) After issuing the notice required by this subsection, a
152-9 guardian of an estate may purchase property from the estate on the
152-10 court's determination that the sale is in the best interest of the
152-11 estate. The guardian shall give notice by certified mail, return
152-12 receipt requested, unless the court requires another form of
152-13 notice, to each distributee of a deceased person's estate and to
152-14 each creditor whose claim remains unsettled after presenting a
152-15 claim within six months of the original grant of letters. In the
152-16 case of an application filed by the guardian of the estate of a
152-17 ward, the court shall appoint an attorney ad litem to represent the
152-18 ward with respect to the sale. The court may require additional
152-19 notice or it may allow for the waiver of the notice required for a
152-20 sale made under this subsection.
152-21 (d) If a purchase is made in violation of this section, a
152-22 person interested in the estate may file a written complaint with
152-23 the court in which the guardianship proceedings are pending. On
152-24 service of citation on the guardian and after hearing and proof,
152-25 the court shall declare the sale void, set aside the sale, and
152-26 order that the property be reconveyed to the estate. All costs of
152-27 the sale, protest, and suit, if found necessary, shall be adjudged
153-1 against the guardian.
153-2 Sec. 832. REPORT OF SALE. A sale of real property of an
153-3 estate shall be reported to the court that orders the sale not
153-4 later than the 30th day after the date the sale is made. A report
153-5 must be in writing, sworn to, filed with the clerk, and noted on
153-6 the probate docket. A report made under this section must contain:
153-7 (1) the date of the order of sale;
153-8 (2) a description of the property sold;
153-9 (3) the time and place of sale;
153-10 (4) the name of the purchaser;
153-11 (5) the amount for which each parcel of property or
153-12 interest in the parcel of property was sold;
153-13 (6) the terms of the sale, and whether the sale was
153-14 private or made at a public auction; and
153-15 (7) whether the purchaser is ready to comply with the
153-16 order of sale.
153-17 Sec. 833. BOND ON SALE OF REAL ESTATE. If the guardian of
153-18 the estate is not required by this chapter to furnish a general
153-19 bond, the court may confirm the sale if the court finds the sale is
153-20 satisfactory and in accordance with law. Otherwise, before a sale
153-21 of real estate is confirmed, the court shall determine whether the
153-22 general bond of the guardian is sufficient to protect the estate
153-23 after the proceeds of the sale are received. If the court finds
153-24 the bond is sufficient, the court may confirm the sale. If the
153-25 general bond is found by the court to be insufficient, the court
153-26 may not confirm the sale until the general bond is increased to the
153-27 amount required by the court, or an additional bond is given and
154-1 approved by the court. The increase in the amount of the bond, or
154-2 the additional bond, shall be equal to the amount for which the
154-3 real estate is sold in addition to any additional sum the court
154-4 finds necessary and sets for the protection of the estate. If the
154-5 real estate sold is encumbered by a lien to secure a claim against
154-6 the estate, is sold to the owner or holder of the secured claim,
154-7 and is in full payment, liquidation, and satisfaction of the claim,
154-8 an increased general bond or additional bond may not be required
154-9 except for the amount of cash actually paid to the guardian of the
154-10 estate in excess of the amount necessary to pay, liquidate, and
154-11 satisfy the claim in full.
154-12 Sec. 834. ACTION OF COURT ON REPORT OF SALE. After the
154-13 expiration of five days from the date a report of sale is filed
154-14 under Section 832 of this code, the court shall inquire into the
154-15 manner in which the sale was made, hear evidence in support of or
154-16 against the report, and determine the sufficiency or insufficiency
154-17 of the guardian's general bond, if any has been required and given.
154-18 If the court is satisfied that the sale was for a fair price, was
154-19 properly made, and conforms with the law and the court has approved
154-20 any increased or additional bond that may have been found necessary
154-21 to protect the estate, the court shall enter a decree confirming
154-22 the sale showing conformity with other provisions of this chapter
154-23 relating to the sale and authorizing the conveyance of the property
154-24 to be made by the guardian of the estate on compliance by the
154-25 purchaser with the terms of the sale, detailing those terms. If
154-26 the court is not satisfied that the sale was for a fair price, was
154-27 properly made, and conforms with the law, the court shall issue an
155-1 order that sets the sale aside and order a new sale to be made, if
155-2 necessary. The action of the court in confirming or disapproving a
155-3 report of sale has the force and effect of a final judgment. Any
155-4 person interested in the guardianship estate or in the sale has the
155-5 right to have the decrees reviewed as in other final judgments in
155-6 probate proceedings.
155-7 Sec. 835. DEED CONVEYS TITLE TO REAL ESTATE. When real
155-8 estate is sold, the conveyance of real estate shall be by proper
155-9 deed that refers to and identifies the decree of the court that
155-10 confirmed the sale. The deed shall vest in the purchaser all
155-11 right, title, and interest of the estate to the property and shall
155-12 be prima facie evidence that the sale has met all applicable
155-13 requirements of the law.
155-14 Sec. 836. Delivery of Deed, Vendor's Lien, and Deed of Trust
155-15 Lien. After a sale is confirmed by the court and one purchaser has
155-16 complied with the terms of sale, the guardian of the estate shall
155-17 execute and deliver to the purchaser a proper deed conveying the
155-18 property. If the sale is made partly on credit, the vendor's lien
155-19 securing a purchase money note shall be expressly retained in the
155-20 deed and may not be waived. Before actual delivery of the deed to
155-21 the purchaser, the purchaser shall execute and deliver to the
155-22 guardian of the estate a vendor's lien note, with or without
155-23 personal sureties as the court has ordered and a deed of trust or
155-24 mortgage on the property as further security for the payment of the
155-25 note. On completion of the transaction, the guardian shall
155-26 promptly file and record in the appropriate records in the county
155-27 where the land is located the deed of trust or mortgage.
156-1 Sec. 837. PENALTY FOR NEGLECT. If the guardian of an estate
156-2 neglects to comply with Section 836 of this code or fails to file
156-3 the deed of trust securing the lien in the proper county, the
156-4 guardian, after complaint and citation, may be removed. The
156-5 guardian and the sureties on the bond of the guardian shall be held
156-6 liable for the use of the estate and for all damages resulting from
156-7 the neglect of the guardian. Damages under this section may be
156-8 recovered in a court of competent jurisdiction.
156-9 SUBPART I. HIRING AND RENTING
156-10 Sec. 839. Hiring or Renting Without Order of Court. The
156-11 guardian of an estate, without court order, may rent any real
156-12 property of the estate or hire out any personal property of the
156-13 estate for one year or less, either at public auction or privately,
156-14 as may be deemed in the best interests of the estate.
156-15 Sec. 840. LIABILITY OF GUARDIAN. If property of the
156-16 guardianship estate is hired or rented without court order, on the
156-17 sworn complaint of any person interested in the estate, the
156-18 guardian of the estate shall be required to account to the estate
156-19 for the reasonable value of the hire or rent of the property to be
156-20 ascertained by the court on satisfactory evidence.
156-21 Sec. 841. ORDER TO HIRE OR RENT. A guardian of an estate
156-22 may file a written application with the court setting forth the
156-23 property sought to be hired or rented. If the proposed rental
156-24 period is one year or more, the guardian of the estate shall file a
156-25 written application with the court setting forth the property
156-26 sought to be hired or rented. If the court finds that it would be
156-27 in the interests of the estate, the court shall grant the
157-1 application and issue an order that describes the property to be
157-2 hired or rented and states whether the hiring or renting shall be
157-3 at public auction or privately, whether for cash or on credit, and,
157-4 if on credit, the extent of the credit and the period for which the
157-5 property may be rented. If the property is to be hired or rented
157-6 at public auction, the court shall prescribe whether notice shall
157-7 be published or posted.
157-8 Sec. 842. PROCEDURE IN CASE OF NEGLECT TO RENT PROPERTY. A
157-9 person interested in a guardianship may file a written and sworn
157-10 complaint in a court in which the estate is pending and cause the
157-11 guardian of the estate to be cited to appear and show cause why the
157-12 guardian did not hire or rent any property of the estate. The
157-13 court, on hearing the complaint, shall make an order that is in the
157-14 best interests of the estate.
157-15 Sec. 843. PROPERTY HIRED OR RENTED ON CREDIT. When property
157-16 is hired or rented on credit, possession of the property may not be
157-17 delivered until the hirer or renter has executed and delivered to
157-18 the guardian of the estate a note with good personal security for
157-19 the amount of the hire or rental. If the property that is hired or
157-20 rented is delivered without the receipt of the security required
157-21 under this section, the guardian and the sureties on the bond of
157-22 the guardian shall be liable for the full amount of the hire or
157-23 rental. This section does not apply to a hire or rental that is
157-24 paid in installments in advance of the period of time to which they
157-25 relate.
157-26 Sec. 844. PROPERTY HIRED OR RENTED RETURNED IN GOOD
157-27 CONDITION. All property that is hired or rented, with or without a
158-1 court order, shall be returned to the possession of the
158-2 guardianship in as good a condition, reasonable wear and tear
158-3 excepted, as when the property was hired or rented. It shall be
158-4 the duty and responsibility of the guardian of the estate to see
158-5 that the property is returned as provided by this section, to
158-6 report to the court any loss, damage, or destruction of property
158-7 that is hired or rented under this chapter, and to ask for
158-8 authority to take action as is necessary. If the guardian fails to
158-9 act as required by this section, the guardian and the sureties on
158-10 the bond of the guardian shall be liable to the guardianship for
158-11 any loss or damage suffered through the fault of the guardian to
158-12 act as required under this section.
158-13 Sec. 845. REPORT OF HIRING OR RENTING. (a) When any
158-14 property of the guardianship estate with an appraised value of
158-15 $3,000 or more has been hired or rented, the guardian of the
158-16 estate, not later than the 30th day after the date of the hire or
158-17 rental, shall file with the court a sworn and written report that
158-18 states:
158-19 (1) the property involved and its appraised value;
158-20 (2) the date of hiring or renting, and whether at
158-21 public auction or privately;
158-22 (3) the name of the person who hired or rented the
158-23 property;
158-24 (4) the amount of the hiring or rental; and
158-25 (5) whether the hiring or rental was for cash or on
158-26 credit, and, if on credit, the length of time, the terms, and the
158-27 security taken for the hiring or rental.
159-1 (b) When the value of the property involved is less than
159-2 $3,000, the hiring or renting of the property may be reported in
159-3 the next annual or final account that is to be filed as required by
159-4 law.
159-5 Sec. 846. Court Action on Report. After five days from the
159-6 time the report of the hiring or rental is filed, the court shall
159-7 examine the report and shall approve and confirm the hiring or
159-8 rental by court order if the court finds the hire or rental just
159-9 and reasonable. If the court disapproves the hiring or rental, the
159-10 guardianship may not be bound and the court may order another
159-11 offering of the property for hire or rent in the same manner and
159-12 subject to the same rules provided in this chapter for property for
159-13 hire or rent. If the report has been approved by the court and it
159-14 later appears that, due to the fault of the guardian of the estate,
159-15 the property has not been hired or rented for its reasonable value,
159-16 the court shall cause the guardian of the estate and the sureties
159-17 on the bond of the guardian to appear and show cause why the
159-18 reasonable value of the hire or rental of the property should not
159-19 be adjudged against the guardian or sureties.
159-20 SUBPART J. MINERAL LEASES, POOLING OR UNITIZATION AGREEMENTS,
159-21 AND OTHER MATTERS RELATING TO MINERAL PROPERTIES
159-22 Sec. 847. MINERAL LEASES AFTER PUBLIC NOTICE. (a) In this
159-23 subpart:
159-24 (1) "Land" or "interest in land" includes minerals or
159-25 any interest in any of the minerals in place.
159-26 (2) "Mineral development" includes exploration, by
159-27 geophysical or by any other means, drilling, mining, developing,
160-1 and operating, and producing and saving oil, other liquid
160-2 hydrocarbons, gas (including all liquid hydrocarbons in the gaseous
160-3 phase in the reservoir), gaseous elements, sulphur, metals, and all
160-4 other minerals, solid or otherwise.
160-5 (3) "Property" includes land, minerals in place,
160-6 whether solid, liquid, or gaseous, as well as an interest of any
160-7 kind in the property, including royalty, owned by the estate.
160-8 (b) A guardian acting solely under an order of a court, may
160-9 be authorized by the court in which the guardianship proceeding is
160-10 pending to make, execute, and deliver leases, with or without
160-11 unitization clauses or pooling provisions, that provide for the
160-12 exploration for, and development and production of, oil, other
160-13 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
160-14 gaseous phase), metals, and other solid minerals, and other
160-15 minerals, or any of those minerals in place, belonging to the
160-16 estate.
160-17 (c) All leases authorized by Subsection (b) of this section,
160-18 with or without pooling provisions or unitization clauses, shall be
160-19 made and entered into pursuant to and in conformity with
160-20 Subsections (d)-(m) of this section.
160-21 (d) The guardian of the estate shall file a written
160-22 application with the court seeking authority to lease property of
160-23 the estate for mineral exploration and development, with or without
160-24 pooling provisions or unitization clauses. The name of any
160-25 proposed lessee or the terms, provisions, or form of any desired
160-26 lease do not need to be set out or suggested in the application.
160-27 The application shall:
161-1 (1) describe the property fully enough by reference to
161-2 the amount of acreage, the survey name or number, abstract number,
161-3 or other description that adequately identifies the property and
161-4 its location in the county in which the property is located;
161-5 (2) specify the interest thought to be owned by the
161-6 estate if less than the whole, but asking for authority to include
161-7 all interest owned by the estate if that is the intention; and
161-8 (3) set out the reasons why the particular property of
161-9 the estate should be leased.
161-10 (e) When an application to lease is filed, under this
161-11 section, the county clerk shall immediately call the filing of the
161-12 application to the attention of the court. The judge shall
161-13 promptly make and enter a brief order designating the time and
161-14 place for the hearing of the application. If the hearing does not
161-15 take place at the time originally designated by the court or by
161-16 timely order of continuance duly entered, the hearing shall be
161-17 automatically continued without further notice to the same hour or
161-18 time the following day, except Sundays and holidays on which the
161-19 county courthouse is officially closed to business, and from day to
161-20 day until the application is finally acted on and disposed of by
161-21 order of the court. No notice of the automatic continuance shall
161-22 be required.
161-23 (f) The guardian shall give written notice directed to all
161-24 persons interested in the estate of the time designated by the
161-25 judge for the hearing on the application to lease. The notice must
161-26 be dated, state the date on which the application was filed,
161-27 describe briefly the property sought to be leased, specify the
162-1 fractional interest sought to be leased if less than the entire
162-2 interest in the tract identified, and state the time and place
162-3 designated by the judge for the hearing. Exclusive of the date of
162-4 notice and of the date set for hearing, the guardian shall give at
162-5 least 10 days' notice by publishing in one issue of a newspaper of
162-6 general circulation in the county in which the proceeding is
162-7 pending or by posting if there is no newspaper in the county.
162-8 Posting under this section may be done at the guardian's instance.
162-9 The date of notice when published shall be the date the newspaper
162-10 bears.
162-11 (g) A court order authorizing any acts to be performed
162-12 pursuant to the application is null and void in the absence of:
162-13 (1) a written order originally designating a time and
162-14 place for hearing;
162-15 (2) a notice issued by the guardian of the estate in
162-16 compliance with the order; and
162-17 (3) proof of publication or posting of the notice as
162-18 required.
162-19 (h) At the time and place designated for the hearing, or at
162-20 any time to which the hearing has been continued as provided by
162-21 this section, the judge shall hear the application and require
162-22 proof as to the necessity or advisability of leasing for mineral
162-23 development the property described in the application and in the
162-24 notice. If the judge is satisfied that the application is in due
162-25 form, that notice has been duly given in the manner and for the
162-26 time required by law, that the proof of necessity or advisability
162-27 of leasing is sufficient, and that the application should be
163-1 granted, the judge shall enter an order so finding and authorizing
163-2 the making of one or more leases, with or without pooling
163-3 provisions or unitization clauses (with or without cash
163-4 consideration if deemed by the court to be in the best interest of
163-5 the estate) that affects and covers the property or portions of the
163-6 property described in the application. The order that authorizes
163-7 the leasing must also set out the following mandatory contents:
163-8 (1) the name of the lessee;
163-9 (2) the actual cash consideration, if any, to be paid
163-10 by the lessee;
163-11 (3) a finding that the guardian is exempt by law from
163-12 giving bond if that is a fact, and if the guardian is required to
163-13 give a bond, then a finding as to whether or not the guardian's
163-14 general bond on file is sufficient to protect the personal property
163-15 on hand, inclusive of any cash bonus to be paid; but if the court
163-16 finds the general bond is insufficient to meet these requirements,
163-17 the order shall show the amount of increased or additional bond
163-18 required to cover the deficiency;
163-19 (4) a complete exhibit copy, either unwritten or
163-20 printed, of each lease authorized to be made, either set out in,
163-21 attached to, incorporated by reference in, or made a part of the
163-22 order.
163-23 (i) An exhibit copy must show the name of the lessee, the
163-24 date of the lease, an adequate description of the property being
163-25 leased, the delay rental, if any, to be paid to defer commencement
163-26 of operations, and all other terms and provisions authorized. If
163-27 no date of the lease appears in the exhibit copy or in the court's
164-1 order, then the date of the court's order is considered for all
164-2 purposes as the date of the authorized lease. If the name and
164-3 address of a depository bank for receiving rental is not shown in
164-4 the exhibit copy, the name or address of the depository bank may be
164-5 inserted or caused to be inserted in the lease by the estate's
164-6 guardian at the time of its execution or at any other time
164-7 agreeable to the lessee, his successors, or assigns.
164-8 (j) On the hearing of an application for authority to lease,
164-9 if the court grants the authority to lease, the guardian of the
164-10 estate is fully authorized to make, not later than the 30th day
164-11 after the date of the judge's order, unless an extension is granted
164-12 by the court on a sworn application showing good cause, the lease
164-13 as evidenced by the true exhibit copies in accordance with the
164-14 order. Unless the guardian is not required to give a general
164-15 bond, a lease for which a cash consideration is required, though
164-16 ordered, executed, and delivered, is not valid unless the order
164-17 authorizing the lease actually makes a finding with respect to the
164-18 general bond. If the general bond has been found insufficient, the
164-19 lease is not valid until the bond has been increased or an
164-20 additional bond given with the sureties required by law as required
164-21 by the court order, has been approved by the judge, and has been
164-22 filed with the clerk of the court in which the proceeding is
164-23 pending. If two or more leases on different lands are authorized
164-24 by the same order, the general bond shall be increased or
164-25 additional bonds given to cover all. It is not necessary for the
164-26 judge to make any order confirming the leases.
164-27 (k) Every lease when executed and delivered in compliance
165-1 with the rules set out in this section shall be valid and binding
165-2 on the property or interest owned by the estate and covered by the
165-3 lease for the full duration of the term as provided in the lease
165-4 and is subject only to its terms and conditions even though the
165-5 primary term extends beyond the date when the estate is closed in
165-6 accordance with law. In order for a lease to be valid and binding
165-7 on the property or interest owned by the estate under this section,
165-8 the authorized primary term in the lease may not exceed five years,
165-9 subject to terms and provisions of the lease extending it beyond
165-10 the primary term by paying production, by bona fide drilling or
165-11 reworking operations, whether in or on the same or additional well
165-12 or wells with no cessation of operations of more than 60
165-13 consecutive days before production has been restored or obtained,
165-14 or by the provisions of the lease relating to a shut-in gas well.
165-15 (l) As to any existing valid mineral lease executed and
165-16 delivered in compliance with this chapter before September 1, 1993,
165-17 a provision of the lease continuing the lease in force after its
165-18 five-year primary term by a shut-in gas well is validated, unless
165-19 the validity of the provision is an issue in a lawsuit pending in
165-20 this state on September 1, 1993.
165-21 (m) Any oil, gas, and mineral lease executed by a guardian
165-22 under this chapter may be amended by an instrument that provides
165-23 that a shut-in gas well on the land covered by the lease or on land
165-24 pooled with all or some part of the land covered by the lease shall
165-25 continue the lease in force after its five-year primary term. The
165-26 instrument shall be executed by the guardian, with court approval,
165-27 and on the terms and conditions as may be prescribed in the
166-1 instrument.
166-2 Sec. 848. MINERAL LEASES AT PRIVATE SALE.
166-3 (a) Notwithstanding the mandatory requirements for setting a time
166-4 and place for hearing of an application to lease under Section 847
166-5 of this code and the issuance, service, and return of notice, the
166-6 court may authorize the making of oil, gas, and mineral leases at
166-7 private sale without public notice or advertising if, in the
166-8 opinion of the court, sufficient facts are set out in the
166-9 application to show that it would be more advantageous to the
166-10 estate that a lease be made privately and without compliance with
166-11 the mandatory requirements under Section 847 of this code. Leases
166-12 authorized under this section may include pooling provisions or
166-13 unitization clauses as in other cases.
166-14 (b) At any time after the expiration of five days and before
166-15 the expiration of the 10th day after the date of filing and without
166-16 an order setting the time and place of hearing, the court shall
166-17 hear the application to lease at a private sale. The court shall
166-18 inquire into the manner in which the proposed lease has been or
166-19 will be made and shall hear evidence for or against the
166-20 application. If the court is satisfied that the lease has been or
166-21 will be made for a fair and sufficient consideration and on fair
166-22 terms and has been or will be properly made in conformity with the
166-23 law, the court shall enter an order authorizing the execution of
166-24 the lease without the necessity of advertising, notice, or
166-25 citation. An order entered under this subsection must comply in
166-26 all other respects with the requirements essential to the validity
166-27 of mineral leases set out in this chapter as if advertising or
167-1 notice were required. An order that confirms a lease made at a
167-2 private sale does not need to be issued. A lease made at a private
167-3 sale is not valid until the increased or additional bond required
167-4 by the court, if any, has been approved by the court and filed with
167-5 the clerk of the court.
167-6 Sec. 849. Pooling or Unitization of Royalty or Minerals.
167-7 (a) When an existing lease on property owned by the estate does
167-8 not adequately provide for pooling or unitization, the court may
167-9 authorize the commitment of royalty or mineral interests in oil,
167-10 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
167-11 gaseous phase in the reservoir), gaseous elements, and other
167-12 minerals or any one or more of them owned by the estate being
167-13 administered to agreements that provide for the operation of areas
167-14 as a pool or unit for the exploration, development, and production
167-15 of all those minerals, if the court finds that the pool or unit to
167-16 which the agreement relates will be operated in such a manner as to
167-17 protect correlative rights, or to prevent the physical or economic
167-18 waste of oil, liquid hydrocarbons, gas (including all liquid
167-19 hydrocarbons in the gaseous phase in the reservoir), gaseous
167-20 elements, or other mineral subject thereto, and that it is in the
167-21 best interests of the estate to execute the agreement. Any
167-22 agreement so authorized to be executed may provide that:
167-23 (1) operations incident to the drilling of or
167-24 production from a well on any portion of a pool or unit are deemed
167-25 for all purposes to be the conduct of operations on or production
167-26 from each separately owned tract in the pool or unit;
167-27 (2) any lease covering any part of the area committed
168-1 to a pool or unit shall continue in force in its entirety as long
168-2 as oil, gas, or other mineral subject to the agreement is produced
168-3 in paying quantities from any part of the pooled or unitized area,
168-4 as long as operations are conducted as provided in the lease on any
168-5 part of the pooled or unitized area, or as long as there is a
168-6 shut-in gas well on any part of the pooled or unitized area if the
168-7 presence of the shut-in gas well is a ground for continuation of
168-8 the lease on the terms of the lease;
168-9 (3) the production allocated by the agreement to each
168-10 tract included in a pool or unit shall, when produced, be deemed
168-11 for all purposes to have been produced from the tract by a well
168-12 drilled on the tract;
168-13 (4) the royalties provided for on production from any
168-14 tract or portion of a tract within the pool or unit shall be paid
168-15 only on that portion of the production allocated to the tract in
168-16 accordance with the agreement;
168-17 (5) the dry gas, before or after extraction of
168-18 hydrocarbons, may be returned to a formation underlying any lands
168-19 or leases committed to the agreement, and that no royalties are
168-20 required to be paid on the gas so returned; and
168-21 (6) gas obtained from other sources or another tract
168-22 of land may be injected into a formation underlying any land or
168-23 lease committed to the agreement, and that no royalties are
168-24 required to be paid on the gas so injected when same is produced
168-25 from the unit.
168-26 (b) Pooling or unitization, when not adequately provided for
168-27 by an existing lease on property owned by the estate, may be
169-1 authorized by the court in which the proceeding is pending pursuant
169-2 to and in conformity with Subsections (c)-(g) of this section.
169-3 (c) The guardian of the estate shall file with the county
169-4 clerk of the county in which the guardianship proceeding is pending
169-5 the guardian's written application for authority to enter into a
169-6 pooling or unitization agreement supplementing, amending, or
169-7 otherwise relating to, any existing lease covering property owned
169-8 by the estate, or to commit royalties or other interest in
169-9 minerals, whether subject to lease or not, to a pooling or
169-10 unitization agreement. The application must also describe the
169-11 property sufficiently as required in the original application to
169-12 lease, describe briefly the lease to which the interest of the
169-13 estate is subject, and set out the reasons the proposed agreement
169-14 concerning the property should be made. A true copy of the
169-15 proposed agreement shall be attached to the application and by
169-16 reference made a part of the application, but the agreement may not
169-17 be recorded in the minutes. The clerk shall immediately, after the
169-18 application is filed, call it to the attention of the judge.
169-19 (d) Notice of the filing of the application by advertising,
169-20 citation, or otherwise is not required.
169-21 (e) The judge may hold a hearing on the application at a
169-22 time that is agreeable to the parties to the proposed agreement.
169-23 The judge shall hear proof and be satisfied as to whether it is in
169-24 the best interests of the estate that the proposed agreement be
169-25 authorized. The hearing may be continued from day to day and from
169-26 time to time as the court finds to be necessary.
169-27 (f) If the court finds that the pool or unit to which the
170-1 agreement relates will be operated in such a manner as to protect
170-2 correlative rights or to prevent the physical or economic waste of
170-3 oil, liquid hydrocarbons, gas (including all liquid hydrocarbons in
170-4 the gaseous phase in the reservoir), gaseous elements, or other
170-5 mineral subject to the pool or unit, that it is in the best
170-6 interests of the estate that the agreement be executed, and that
170-7 the agreement conforms substantially with the permissible
170-8 provisions of Subsection (a) of this section, the court shall enter
170-9 an order setting out the findings made by the court and authorizing
170-10 execution of the agreement, with or without payment of cash
170-11 consideration according to the agreement. If cash consideration is
170-12 to be paid for the agreement, the court shall make a finding as to
170-13 the necessity of increased or additional bond as a finding is made
170-14 in the making of leases on payment of the cash bonus for the lease.
170-15 The agreement is not valid until the increased or additional bond
170-16 required by the court, if any, has been approved by the judge and
170-17 filed with the clerk. If the date is not stipulated in the
170-18 agreement, the date of the court's order shall be the effective
170-19 date of the agreement.
170-20 Sec. 850. Special Ancillary Instruments Executed Without
170-21 Court Order. As to any valid mineral lease or pooling or
170-22 unitization agreement, executed on behalf of the estate before
170-23 September 1, 1993, pursuant to provisions, or by a former owner of
170-24 land, minerals, or royalty affected by the lease, pooling, or
170-25 unitization agreement, the guardian of the estate that is being
170-26 administered, without further order of the court and without
170-27 consideration, may execute division orders, transfer orders,
171-1 instruments of correction, instruments designating depository banks
171-2 for the reception of delay rentals or shut-in gas well royalty to
171-3 accrue or become payable under the terms of the lease, or similar
171-4 instruments pertaining to the lease or agreement and the property
171-5 covered by the lease or agreement.
171-6 Sec. 851. Procedure When Guardian of Estate Neglects to
171-7 Apply for Authority. When the guardian of an estate neglects to
171-8 apply for authority to subject property of the estate to a lease
171-9 for mineral development, pooling, or unitization, or authority to
171-10 commit royalty or other interest in minerals to pooling or
171-11 unitization, any person interested in the estate, on written
171-12 application filed with the county clerk, may cause the guardian to
171-13 be cited to show cause why it is not in the best interests of the
171-14 estate for the lease to be made or an agreement to be entered into.
171-15 The clerk shall immediately call the filing of the application
171-16 under this section to the attention of the judge of the court in
171-17 which the guardianship proceeding is pending. The judge shall set
171-18 a time and place for a hearing on the application. The guardian of
171-19 the estate shall be cited to appear and show cause why the
171-20 execution of the lease or agreement should not be ordered. On
171-21 hearing and if satisfied from the proof that it would be in the
171-22 best interests of the estate, the court shall enter an order
171-23 requiring the guardian to file the guardian's application to
171-24 subject the property of the estate to a lease for mineral
171-25 development, with or without pooling or unitization provisions, or
171-26 to commit royalty or other minerals to unitization, as the case may
171-27 be. The procedures prescribed with respect to original application
172-1 to lease or with respect to original application for authority to
172-2 commit royalty or minerals to pooling or unitization shall be
172-3 followed.
172-4 Sec. 852. VALIDATION OF CERTAIN LEASES AND POOLING OR
172-5 UNITIZATION AGREEMENTS BASED ON PREVIOUS STATUTES. All leases on
172-6 the oil, gas, or other minerals existing on September 1, 1993,
172-7 belonging to the estates of minors or other incapacitated persons
172-8 and all agreements with respect to the pooling or unitization of
172-9 oil, gas, or other minerals or any interest in oil, gas, or other
172-10 minerals with like properties of others that have been authorized
172-11 by the court having venue, executed, and delivered by a guardian or
172-12 other fiduciary of the estate of a minor or incapacitated person in
172-13 substantial conformity to the rules set forth in statutes on
172-14 execution or delivery providing for only seven days' notice in some
172-15 instances and for a brief order designating a time and place for
172-16 hearing, are validated insofar as the period of notice or absence
172-17 of an order setting a time and place for hearing is concerned,
172-18 unless the length of time of the notice or the absence of the order
172-19 is an issue in a lease or pooling or unitization agreement that is
172-20 involved in a lawsuit pending on September 1, 1993.
172-21 SUBPART K. PARTITION OF WARD'S ESTATE IN REALTY
172-22 Sec. 853. PARTITION OF WARD'S INTEREST IN REALTY. (a) If a
172-23 ward owns an interest in real estate in common with another part
172-24 owner or one or more part owners, and if, in the opinion of the
172-25 guardian of the estate, it is in the best interests of the ward's
172-26 estate to partition the real estate, the guardian may agree on a
172-27 partition with the other part owners subject to the approval of the
173-1 court in which the guardianship proceeding is pending.
173-2 (b) When a guardian has reached an agreement with the other
173-3 part owners on how to partition the real estate, the guardian shall
173-4 file with the court an application to have the agreement approved.
173-5 The application filed by the guardian under this subsection shall
173-6 describe the land that is to be divided and shall state why it is
173-7 in the best interests of the ward's estate to partition the real
173-8 estate and shall show that the proposed partition agreement is fair
173-9 and just to the ward's estate.
173-10 (c) When the application required by Subsection (b) of this
173-11 section is filed, the county clerk shall immediately call the
173-12 filing of the application to the attention of the judge of the
173-13 court in which the guardianship proceeding is pending. The judge
173-14 shall designate a day to hear the application. The application
173-15 must remain on file at least 10 days before any orders are made,
173-16 and the judge may continue the hearing from time to time until the
173-17 judge is satisfied concerning the application.
173-18 (d) If the judge is satisfied that the proposed partition of
173-19 the real estate is in the best interests of the ward's estate, the
173-20 court shall enter an order approving the partition and directing
173-21 the guardian to execute the necessary agreement for the purpose of
173-22 carrying the order and partition into effect.
173-23 (e) When a guardian has executed an agreement or will
173-24 execute an agreement to partition any land in which the ward has
173-25 an interest without court approval as provided by this section, the
173-26 guardian shall file with the court in which the guardianship
173-27 proceedings are pending an application for the approval and
174-1 ratification of the partition agreement. The application must
174-2 refer to the agreement in such a manner that the court can fully
174-3 understand the nature of the partition and the land being divided.
174-4 The application must state that, in the opinion of the guardian,
174-5 the agreement is fair and just to the ward's estate and is in the
174-6 best interests of the estate. When the application is filed, a
174-7 hearing shall be held on the publication as provided by Subsection
174-8 (c) of this section. If the court is of the opinion that the
174-9 partition is fairly made and that the partition is in the best
174-10 interests of the ward's estate, the court shall enter an order
174-11 ratifying and approving the partition agreement. When the
174-12 partition is ratified and approved, the partition shall be
174-13 effective and binding as if originally executed after a court
174-14 order.
174-15 (f) If the guardian of the estate of a ward is of the
174-16 opinion that it is in the best interests of the ward's estate that
174-17 any real estate that the ward owns in common with others should be
174-18 partitioned, the guardian may bring a suit in the court in which
174-19 the guardianship proceeding is pending against the other part owner
174-20 or part owners for the partition of the real estate. The court, if
174-21 after hearing the suit is satisfied that the necessity for the
174-22 partition of the real estate exists, may enter an order
174-23 partitioning the real estate to the owner of the real estate.
174-24 SUBPART L. INVESTMENTS AND LOANS OF ESTATES OF WARDS
174-25 Sec. 855. INVESTMENTS WITHOUT COURT ORDER. (a) The
174-26 guardian of the estate may retain, without regard to
174-27 diversification of investments and without liability for any
175-1 depreciation or loss resulting from the retention, any property
175-2 received into a guardianship estate at its inception or added to
175-3 the estate by gift, devise, or inheritance or by mutation or
175-4 increase. A guardian of the estate is not relieved from the duty
175-5 to take care of and manage the estate as a person of ordinary
175-6 prudence, discretion, and intelligence would exercise in the
175-7 management of the person's own affairs.
175-8 (b) If the guardian of the estate has on hand money that
175-9 belongs to the ward that exceeds that amount of money that may be
175-10 necessary for the education and maintenance of the ward, the
175-11 guardian shall invest the money as follows:
175-12 (1) in bonds or other obligations of the United
175-13 States;
175-14 (2) in tax-supported bonds of this state;
175-15 (3) except as limited by Subsections (c) and (d) of
175-16 this section, in tax-supported bonds of a county, district,
175-17 political subdivision, or incorporated city or town in this state;
175-18 (4) in shares or share accounts of a building and loan
175-19 association organized under the laws of this state if the payment
175-20 of the shares or share accounts is insured by the Federal Savings
175-21 and Loan Insurance Corporation;
175-22 (5) in the shares or share accounts of a federal
175-23 savings and loan association domiciled in this state if the payment
175-24 of the shares or share accounts is insured by the Federal Savings
175-25 and Loan Insurance Corporation;
175-26 (6) in collateral bonds of companies incorporated
175-27 under the laws of this state, having a paid-in capital of
176-1 $1,000,000 or more, when the bonds are a direct obligation of the
176-2 company that issues the bonds and are specifically secured by first
176-3 mortgage real estate notes or other securities pledged with a
176-4 trustee; or
176-5 (7) in interest-bearing time deposits that may be
176-6 withdrawn on or before one year after demand in a bank that does
176-7 business in this state where the payment of the time deposits is
176-8 insured by the Federal Deposit Insurance Corporation.
176-9 (c) The bonds of a county, district, or subdivision may be
176-10 purchased only if the net funded debt of the county, district, or
176-11 subdivision that issues the bonds does not exceed 10 percent of the
176-12 assessed value of taxable property in the county, district, or
176-13 subdivision.
176-14 (d) The bonds of a city or town may be purchased only if the
176-15 net funded debt of the city or town does not exceed 10 percent of
176-16 the assessed value of taxable property in the city or town less
176-17 that part of the debt incurred for acquisition or improvement of
176-18 revenue-producing utilities, the revenues of which are not pledged
176-19 to support other obligations of the city or town.
176-20 (e) The limitations in Subsections (c) and (d) of this
176-21 section do not apply to bonds issued for road purposes in this
176-22 state under Section 52, Article III, of the Texas Constitution that
176-23 are supported by a tax unlimited as to rate or amount.
176-24 (f) In this section, "net funded debt" means the total
176-25 funded debt less sinking funds on hand.
176-26 Sec. 856. OTHER INVESTMENTS. (a) If a guardian of an
176-27 estate deems it is in the best interests of the ward the guardian
177-1 is appointed to represent to invest in or sell any property or
177-2 security in which a trustee is authorized to invest by either
177-3 Section 113.056 or Subchapter F, Chapter 113, of the Texas Trust
177-4 Code (Subtitle B, Title 9, Property Code), and the investment or
177-5 sale is not expressly permitted by other sections of this chapter,
177-6 the guardian may file a written application in the court in which
177-7 the guardianship is pending that asks for an order authorizing the
177-8 guardian to make the desired investment or sale and states the
177-9 reason why the guardian is of the opinion that the investment or
177-10 sale would be beneficial to the ward. A citation or notice is not
177-11 necessary under this subsection unless ordered by the court.
177-12 (b) On the hearing of the application filed under this
177-13 section, the court shall enter an order authorizing the investment
177-14 or sale if the court is satisfied that the investment or sale will
177-15 be beneficial to the ward. The court order must specify the
177-16 investment or sale to be made and contain other directions as the
177-17 court finds advisable.
177-18 (c) The procedure specified in this section does not need to
177-19 be followed in making an investment or sale specifically authorized
177-20 by other statutes and does not apply if a different procedure is
177-21 prescribed for an investment or sale by a guardian.
177-22 Sec. 857. INVESTMENT IN LIFE INSURANCE OR ANNUITIES.
177-23 (a) In this section, "life insurance company" means a stock or
177-24 mutual legal reserve life insurance company that maintains the full
177-25 legal reserves required under the laws of this state and that is
177-26 licensed by the State Board of Insurance to transact the business
177-27 of life insurance in this state.
178-1 (b) The guardian of the estate may invest in life, term, or
178-2 endowment insurance policies, or in annuity contracts, or both,
178-3 issued by a life insurance company or administered by the Veterans
178-4 Administration, subject to conditions and limitations in this
178-5 section.
178-6 (c) The guardian shall first apply to the court for an order
178-7 that authorizes the guardian to make the investment. The
178-8 application filed under this subsection must include a report that
178-9 shows:
178-10 (1) in detail the financial condition of the estate at
178-11 the time the application is made;
178-12 (2) the name and address of the life insurance company
178-13 from which the policy or annuity contract is to be purchased and
178-14 that the company is licensed by the State Board of Insurance to
178-15 transact that business in this state on the date the application is
178-16 filed, or that the policy or contract is administered by the
178-17 Veterans Administration;
178-18 (3) a statement of the face amount and plan of the
178-19 policy of insurance sought to be purchased and of the amount,
178-20 frequency, and duration of the annuity payments to be provided by
178-21 the annuity contract sought to be purchased;
178-22 (4) a statement of the amount, frequency, and duration
178-23 of the premiums required by the policy or annuity contract; and
178-24 (5) a statement of the cash value of the policy or
178-25 annuity contract at its anniversary nearest the 21st birthday of
178-26 the ward, assuming that all premiums to the anniversary are paid
178-27 and that there is no indebtedness against the policy or contract
179-1 incurred in accordance with its terms.
179-2 (d) An insurance policy must be issued on the life of the
179-3 ward, or the father, mother, spouse, child, brother, sister,
179-4 grandfather, or grandmother of the ward or a person in whose life
179-5 the ward may have an insurable interest.
179-6 (e) Only the ward, the ward's estate, or the father,
179-7 mother, spouse, child, brother, sister, grandfather, or grandmother
179-8 of the ward may be a beneficiary of the insurance policy and of the
179-9 death benefit of the annuity contract, and the ward must be the
179-10 annuitant in the annuity contract.
179-11 (f) The control of the policy or the annuity contract and of
179-12 the incidents of ownership in the policy or annuity contract is
179-13 vested in the guardian during the life and disability of the ward.
179-14 (g) The policy or annuity contract may not be amended or
179-15 changed during the life and disability of the ward except on
179-16 application to and order of the court.
179-17 (h) If a life, term, or endowment insurance policy or a
179-18 contract of annuity is owned by the ward when a proceeding for the
179-19 appointment of a guardian is begun, and it is made to appear that
179-20 the company issuing the policy or contract of annuity is a life
179-21 insurance company as defined by this section or the policy or
179-22 contract is administered by the Veterans Administration, the policy
179-23 or contract may be continued in full force and effect. All future
179-24 premiums may be paid out of surplus funds of the ward's estate.
179-25 The guardian shall apply to the court for an order to continue the
179-26 policy or contract, or both, according to the existing terms of the
179-27 policy or contract or to modify the policy or contract to fit any
180-1 new developments affecting the welfare of the ward. Before any
180-2 application filed under this subsection is granted, the guardian
180-3 shall file a report in the court that shows in detail the financial
180-4 condition of the ward's estate at the time the application is
180-5 filed.
180-6 (i) The court, if satisfied by the application and the
180-7 evidence adduced at the hearing that it is in the interests of the
180-8 ward to grant the application, shall enter an order granting the
180-9 application.
180-10 (j) A right, benefit, or interest that accrues under an
180-11 insurance or annuity contract that comes under the provisions of
180-12 this section shall become the exclusive property of the ward when
180-13 the ward's disability is terminated.
180-14 Sec. 858. LOANS AND SECURITY FOR LOANS. If, at any time,
180-15 the guardian of the estate has on hand money belonging to the ward
180-16 in an amount that is beyond what may be necessary for the education
180-17 and maintenance of the ward, the guardian may lend the money for
180-18 the highest rate of interest that can be obtained for the money.
180-19 The guardian shall take the note of the borrower for the money that
180-20 is loaned, secured by a mortgage with a power of sale on
180-21 unencumbered real estate located in this state worth at least twice
180-22 the amount of the note, or by collateral notes secured by vendor's
180-23 lien notes, as collateral, or the guardian may purchase vendor's
180-24 lien notes if at least one-half has been paid in cash or its
180-25 equivalent on the land for which the notes were given.
180-26 Sec. 859. GUARDIAN'S LIABILITY FOR LOANS. When the borrower
180-27 of money lent by the guardian of the estate under the court's
181-1 direction and on security approved by the court is unable to repay
181-2 the money or the security fails, the guardian of the estate is not
181-3 personally responsible for the money unless the guardian has been
181-4 guilty of fraud or negligence with respect to the loan or the
181-5 collection of the loan, in which case the guardian and the sureties
181-6 on the bond of the guardian shall be liable for whatever loss the
181-7 ward sustains because of the guardian's fraud or negligence.
181-8 Sec. 860. GUARDIAN'S INVESTMENTS IN REAL ESTATE. (a) When
181-9 the guardian of the estate of a ward thinks it is best for the ward
181-10 who has a surplus of money on hand to invest the money in real
181-11 estate, the guardian shall file a written application in the court
181-12 in which the guardianship is pending requesting a court order
181-13 authorizing the guardian to make the desired investment and
181-14 stating the reasons why the guardian is of the opinion that the
181-15 investment would be for the benefit of the ward.
181-16 (b) When an application is filed by the guardian under this
181-17 section, the judge's attention shall be called to the application,
181-18 and the judge shall make investigation as necessary to obtain all
181-19 the facts concerning the investment. The judge may not render an
181-20 opinion or make an order on the application until 10 days from the
181-21 date of the filing of the application have expired. On the hearing
181-22 of the application, if the court is satisfied that the investment
181-23 benefits the ward, the court shall issue an order that authorizes
181-24 the guardian to make the investment. The order shall specify the
181-25 investment to be made and contain other directions the court thinks
181-26 are advisable.
181-27 (c) When a contract is made for the investment of money in
182-1 real estate under court order, the guardian shall report the
182-2 contract in writing to the courts. The court shall inquire fully
182-3 into the contract. If satisfied that the investment will benefit
182-4 the estate of the ward and that the title of the real estate is
182-5 valid and unencumbered, the court may approve the contract and
182-6 authorize the guardian to pay over the money in performance of the
182-7 contract. The guardian may not pay any money on the contract until
182-8 the contract is approved by court order to that effect.
182-9 (d) When the money of the ward has been invested in real
182-10 estate, the title to the real estate shall be made to the ward.
182-11 The guardian shall inventory, appraise, manage, and account for the
182-12 real estate as other real estate of the ward.
182-13 Sec. 861. OPINION OF ATTORNEY WITH RESPECT TO LOANS AND
182-14 INVESTMENTS. When the guardian of the estate of a ward lends or
182-15 invests the money of the ward, the guardian may not pay over or
182-16 transfer any money in consummation of the loan or investment until
182-17 the guardian has submitted to a reputable attorney for examination
182-18 all bonds, notes, mortgages, documents, abstracts, and other papers
182-19 pertaining to the loan or investment and the guardian has received
182-20 a written opinion from the attorney that all papers pertaining to
182-21 the loan or investment are regular and that the title to the bonds,
182-22 notes, or real estate is good. The attorney making the examination
182-23 shall be paid a reasonable fee, not to exceed one percent of the
182-24 amount invested, unless one percent of the amount invested is less
182-25 than $25, in which event the fee shall be $25. The guardian
182-26 shall pay the fee out of the funds of the ward's estate. On a
182-27 loan, the attorney's fee shall be paid by the borrower. The
183-1 guardian may obtain a mortgagee's title insurance policy on any
183-2 real estate loan instead of an abstract and attorney's opinion.
183-3 Sec. 862. REPORT OF INVESTMENT AND LOANS. Not later than
183-4 the 30th day after the date money belonging to a ward's estate is
183-5 lent or invested, the guardian of the ward's estate shall report to
183-6 the court in writing, verified by affidavit, stating fully the
183-7 facts of the investment or loan, unless the investment or loan was
183-8 made pursuant to a court order.
183-9 Sec. 863. LIABILITY OF GUARDIAN FOR FAILURE TO LEND OR
183-10 INVEST FUNDS. If the guardian of the estate neglects to invest or
183-11 lend surplus money on hand at interest when the guardian can do so
183-12 by using reasonable diligence, the guardian shall be liable for the
183-13 principal and for the highest legal rate of interest on the
183-14 principal for the time the guardian neglects to invest or lend the
183-15 surplus money. The amount of principal and interest on the
183-16 principal may be recovered in a court of competent jurisdiction.
183-17 Sec. 864. REQUIRING GUARDIAN TO INVEST OR LEND SURPLUS
183-18 FUNDS. If there is any surplus money of the estate in the hands of
183-19 the guardian of the estate, the court, on its own motion or on
183-20 written complaint filed by any person, may cause the guardian to be
183-21 cited to appear and show cause why the surplus money should not be
183-22 invested or lent at interest. On the hearing of a complaint filed
183-23 under this section, the court shall enter an order as the law and
183-24 the facts require.
183-25 SUBPART M. TAX MOTIVATED AND CHARITABLE GIFTS
183-26 Sec. 865. POWER TO MAKE TAX-MOTIVATED GIFTS. (a) On
183-27 application of the guardian of the estate or any interested party
184-1 and after notice to all interested persons and to other persons as
184-2 directed by the court, the court, after hearing, may enter an order
184-3 that authorizes the guardian to apply the principal or income of
184-4 the ward's estate that is not required for the support of the ward
184-5 or the ward's family during the ward's lifetime toward the
184-6 establishment of an estate plan for the purpose of minimizing
184-7 income, estate, inheritance, or other taxes payable out of the
184-8 ward's estate on a showing that the ward will probably remain
184-9 incapacitated during the ward's lifetime. On the ward's behalf,
184-10 the court may authorize the guardian to make gifts, outright or in
184-11 trust, of the ward's personal property or real estate to or for the
184-12 benefit of:
184-13 (1) an organization to which charitable contributions
184-14 may be made under the Internal Revenue Code and in which it is
184-15 shown the ward would reasonably have an interest;
184-16 (2) the ward's heirs at law who are identifiable at
184-17 the time of the order;
184-18 (3) a devisee under the ward's last validly executed
184-19 will, if there is a will; and
184-20 (4) a person serving as guardian of the ward if the
184-21 person is eligible under either Subdivision (2) or (3) of this
184-22 subsection.
184-23 (b) The person making an application to the court under this
184-24 section shall outline the proposed estate plan and set forth all
184-25 the benefits that are to be derived from the estate plan. The
184-26 application must indicate that the planned disposition is
184-27 consistent with the ward's intentions if the ward's intentions can
185-1 be ascertained. If the ward's intentions cannot be ascertained,
185-2 the ward will be presumed to favor reduction in the incidence of
185-3 the various forms of taxation and the partial distribution of the
185-4 ward's estate as provided by this section.
185-5 (c) The court may appoint a guardian ad litem for the ward
185-6 or any interested party at any stage of the proceedings if it is
185-7 deemed advisable for the protection of the ward or the interested
185-8 party.
185-9 (d) A subsequent modification of an approved plan may be
185-10 made by similar application to the court.
185-11 Sec. 866. CONTRIBUTIONS. (a) The guardian of the estate
185-12 may at any time file the guardian's sworn application in writing
185-13 with the county clerk requesting an order from the court in which
185-14 the guardianship is pending authorizing the guardian to contribute
185-15 from the income of the ward's estate a specific amount of money as
185-16 stated in the application, to one or more:
185-17 (1) designated corporations, trusts, or community
185-18 chests, funds, or foundations, organized and operated exclusively
185-19 for religious, charitable, scientific, literary, or educational
185-20 purposes; or
185-21 (2) designated nonprofit federal, state, county, or
185-22 municipal projects operated exclusively for public health or
185-23 welfare.
185-24 (b) When an application is filed under this section, the
185-25 county clerk shall immediately call the filing of the application
185-26 to the attention of the judge of the court. The judge, by written
185-27 order filed with the clerk, shall designate a day to hear the
186-1 application. The application shall remain on file at least 10 days
186-2 before the hearing is held. The judge may postpone or continue the
186-3 hearing from time to time until the judge is satisfied concerning
186-4 the application.
186-5 (c) On the conclusion of a hearing under this section, the
186-6 court may enter an order authorizing the guardian to make a
186-7 contribution from the income of the ward's estate to a particular
186-8 donee designated in the application and order if the court is
186-9 satisfied and finds from the evidence that:
186-10 (1) the amount of the proposed contribution stated in
186-11 the application will probably not exceed 20 percent of the net
186-12 income of the ward's estate for the current calendar year;
186-13 (2) the net income of the ward's estate for the
186-14 current calendar year exceeds, or probably will exceed, $25,000;
186-15 (3) the full amount of the contribution, if made, will
186-16 probably be deductible from the ward's gross income in determining
186-17 the net income of the ward under applicable federal income tax laws
186-18 and rules;
186-19 (4) the condition of the ward's estate justifies a
186-20 contribution in the proposed amount; and
186-21 (5) the proposed contribution is reasonable in amount
186-22 and is for a worthy cause.
186-23 SUBPART N. MANAGEMENT TRUSTS
186-24 Sec. 867. CREATION OF MANAGEMENT TRUST. On application by
186-25 the guardian of a ward, the court in which the guardianship
186-26 proceeding is pending may enter an order that creates for the
186-27 ward's benefit a trust for the management of guardianship funds if
187-1 the court finds that the creation of the trust is in the ward's
187-2 best interests. The order shall direct the guardian to deliver all
187-3 or part of the assets of the guardianship to a trust company or a
187-4 state or national bank that has trust powers in this state. The
187-5 order shall include terms, conditions, and limitations placed on
187-6 the trust.
187-7 Sec. 868. TERMS OF MANAGEMENT TRUST. (a) A trust created
187-8 under Section 867 of this code must provide that:
187-9 (1) the ward is the sole beneficiary of the trust;
187-10 (2) the trustee may disburse an amount of the trust's
187-11 principal or income as the trustee determines is necessary to
187-12 expend for the health, education, support, or maintenance of the
187-13 ward;
187-14 (3) the income of the trust that the trustee does not
187-15 disburse under Subdivision (2) of this subsection must be added to
187-16 the principal of the trust;
187-17 (4) the trustee serves without giving a bond; and
187-18 (5) the trustee, on annual application to the court
187-19 and subject to the court's approval, is entitled to receive
187-20 reasonable compensation for services that the trustee provided to
187-21 the ward as the ward's trustee that is:
187-22 (A) to be paid from the trust's income,
187-23 principal, or both; and
187-24 (B) determined in the same manner as
187-25 compensation of a guardian of an estate under Section 665 of this
187-26 code.
187-27 (b) The trust may provide that a trustee make a
188-1 distribution, payment, use, or application of trust funds, as
188-2 necessary and without the intervention of a guardian or other
188-3 representative of the ward, to the ward's guardian or to a person
188-4 who has physical custody of the ward for:
188-5 (1) the benefit, support, or maintenance of the ward
188-6 if the ward is a minor; or
188-7 (2) the support of the ward, and the support,
188-8 maintenance, and education of the ward's children if the ward is an
188-9 incapacitated person other than a minor.
188-10 Sec. 869. TRUST AMENDMENT, MODIFICATION, OR REVOCATION. (a)
188-11 The court may amend, modify, or revoke the trust at any time before
188-12 the date of the trust's termination.
188-13 (b) The ward or guardian of the ward's estate may not revoke
188-14 the trust.
188-15 Sec. 870. TERMINATION OF TRUST. (a) If the ward is a
188-16 minor, the trust terminates:
188-17 (1) on the death of the ward or the ward's 18th
188-18 birthday, whichever is earlier; or
188-19 (2) on the date provided by court order which may not
188-20 be later than the ward's 25th birthday.
188-21 (b) If the ward is an incapacitated person other than a
188-22 minor, the trust terminates on the date the court determines that a
188-23 guardianship is no longer necessary for the ward or on the death of
188-24 the ward before the court's determination that a guardianship is no
188-25 longer necessary.
188-26 Sec. 871. ANNUAL ACCOUNTING. (a) The trustee shall prepare
188-27 and file with the court an annual accounting of transactions in the
189-1 trust in the same manner and form that is required of a guardian
189-2 under this chapter.
189-3 (b) The trustee shall provide a copy of the annual account
189-4 to the guardian of the ward's estate or person.
189-5 (c) The annual account is subject to court reviewal and
189-6 approval in the same manner that is required of an annual account
189-7 prepared by a guardian under this chapter.
189-8 Sec. 872. LIABILITY. The guardian of the estate of the ward
189-9 or the surety on the bond of the guardian is not liable for an act
189-10 or omission of the trustee.
189-11 Sec. 873. DISTRIBUTION OF TRUST PROPERTY. Unless otherwise
189-12 provided by the court, the trustee shall distribute the principal
189-13 or any undistributed income of the trust to the ward or to the
189-14 representative of the deceased ward's estate when the trust
189-15 terminates on its own terms or on the ward's death.
189-16 PART 5. SPECIAL PROCEEDINGS AND ORDERS
189-17 SUBPART A. TEMPORARY GUARDIANSHIPS
189-18 Sec. 875. TEMPORARY GUARDIAN--PROCEDURE. (a) If a court is
189-19 presented with substantial evidence that a person may be a minor or
189-20 other incapacitated person, and the court has probable cause to
189-21 believe that the person or person's estate, or both, requires the
189-22 immediate appointment of a guardian, the court shall appoint a
189-23 temporary guardian with limited powers as the circumstances of the
189-24 case require.
189-25 (b) A person for whom a temporary guardian has been
189-26 appointed may not be presumed to be incapacitated. The person
189-27 retains all rights and powers that are not specifically granted to
190-1 the person's temporary guardian by court order.
190-2 (c) A written application for the appointment of a temporary
190-3 guardian may be filed before the court appoints a temporary
190-4 guardian. The application must be filed not later than the end of
190-5 the next business day of the court after the date of appointment of
190-6 the temporary guardian. The application must state:
190-7 (1) the name and address of the person who is the
190-8 subject of the guardianship proceeding;
190-9 (2) the danger to the person or property alleged to be
190-10 imminent;
190-11 (3) the type of appointment and the particular
190-12 protection and assistance being requested;
190-13 (4) the facts and reasons supporting the allegations
190-14 and requests;
190-15 (5) the name, address, and qualification of the
190-16 proposed temporary guardian;
190-17 (6) the name, address, and interest of the applicant;
190-18 (7) the social security numbers of the applicant and
190-19 proposed ward; and
190-20 (8) if applicable, that the proposed temporary
190-21 guardian is a private professional guardian who has complied with
190-22 the requirements of Section 697 of this code.
190-23 (d) At the earliest of the filing of an application for
190-24 temporary guardianship or the appointment of a temporary guardian,
190-25 the court shall appoint an attorney to represent the proposed ward
190-26 in all guardianship proceedings in which independent counsel has
190-27 not been retained by or on behalf of the proposed ward.
191-1 (e) On the filing of an application for temporary
191-2 guardianship, the clerk shall issue notice that shall be served on
191-3 the respondent and the respondent's appointed attorney. The notice
191-4 must describe the rights of the parties and the date, time, place,
191-5 purpose, and possible consequences of a hearing on the application.
191-6 A copy of the application and, if applicable, a copy of the order
191-7 appointing the temporary guardian must be attached to the notice.
191-8 (f)(1) A hearing shall be held not later than the 10th day
191-9 after the date of the filing of the application for temporary
191-10 guardianship unless the hearing date is extended as provided by
191-11 Subdivision (2) of this subsection. At a hearing under this
191-12 section, the respondent has the right to:
191-13 (A) receive prior notice;
191-14 (B) have representation by counsel;
191-15 (C) be present;
191-16 (D) present evidence and confront and
191-17 cross-examine witnesses; and
191-18 (E) a closed hearing if requested by the
191-19 respondent or the respondent's attorney.
191-20 (2) Every temporary guardianship granted before a
191-21 hearing on the application required by Subdivision (1) of this
191-22 subsection expires on its own terms at the conclusion of the
191-23 hearing unless the respondent or the respondent's attorney consents
191-24 that the order appointing the temporary guardian may be extended
191-25 for a longer period not to exceed 60 days after the date of the
191-26 filing of the application for temporary guardianship.
191-27 (3) Every temporary guardianship granted before a
192-1 hearing on the application required by Subdivision (1) of this
192-2 subsection shall be set for hearing at the earliest possible date
192-3 and takes precedence over all matters except older matters of the
192-4 same character.
192-5 (4) Every temporary guardianship granted before a
192-6 hearing on the application required by Subdivision (1) of this
192-7 subsection must include an order that sets a certain date for
192-8 hearing on the application for temporary guardianship.
192-9 (5) On one day's notice to the party who obtained a
192-10 temporary guardianship before a hearing on the application required
192-11 by Subdivision (1) of this subsection, the respondent or the
192-12 respondent's attorney may appear and move for the dissolution or
192-13 modification of the temporary guardianship. If a motion is made
192-14 for dissolution or modification of the temporary guardianship, the
192-15 court shall hear and determine the motion as expeditiously as the
192-16 ends of justice require.
192-17 (g) If at the conclusion of the hearing required by
192-18 Subsection (f)(1) of this section the court determines that the
192-19 applicant has established that there is substantial evidence that
192-20 the person is a minor or other incapacitated person, that there is
192-21 imminent danger that the physical health or safety of the
192-22 respondent will be seriously impaired, or that the respondent's
192-23 estate will be seriously damaged or dissipated unless immediate
192-24 action is taken, the court shall appoint a temporary guardian by
192-25 written order. The court shall assign to the temporary guardian
192-26 only those powers and duties that are necessary to protect the
192-27 respondent against the imminent danger shown. The powers and
193-1 duties must be described in the order of appointment.
193-2 (h) Except as provided by Subsection (k) of this section, a
193-3 temporary guardianship may not remain in effect for more than 60
193-4 days.
193-5 (i) If the court appoints a temporary guardian after the
193-6 hearing required by Subsection (f)(1) of this section, all court
193-7 costs, including attorney's fees, may be assessed as provided in
193-8 Section 669 of this code.
193-9 (j) The court may not customarily or ordinarily appoint the
193-10 Texas Department of Human Services as a temporary guardian under
193-11 this section. The appointment of the department as a temporary
193-12 guardian under this section should be made only as a last resort.
193-13 (k) If an application for a temporary guardianship or an
193-14 application to convert a temporary guardianship to a permanent
193-15 guardianship is challenged or contested, the court shall appoint a
193-16 temporary guardian whose term expires at the conclusion of the
193-17 hearing or the period provided by Subsection (h) of this section,
193-18 whichever is later.
193-19 Sec. 876. AUTHORITY OF TEMPORARY GUARDIAN. When the
193-20 temporary guardian files the oath and bond required under this
193-21 chapter, the court order appointing the temporary guardian takes
193-22 effect without the necessity for issuance of letters of
193-23 guardianship. The clerk shall note compliance with oath and bond
193-24 requirements by the appointed guardian on a certificate attached to
193-25 the order. The order shall be evidence of the temporary guardian's
193-26 authority to act within the scope of the powers and duties set
193-27 forth in the order. The clerk may not issue certified copies of
194-1 the order until the oath and bond requirements are satisfied.
194-2 Sec. 877. POWERS OF TEMPORARY GUARDIAN. All the provisions
194-3 of this chapter relating to the guardianship of persons and estates
194-4 of incapacitated persons apply to a temporary guardianship of the
194-5 persons and estates of incapacitated persons, insofar as the same
194-6 may be made applicable.
194-7 Sec. 878. Accounting. At the expiration of a temporary
194-8 appointment, the appointee shall file with the clerk of the court a
194-9 sworn list of all property of the estate that has come into the
194-10 hands of the appointee, a return of all sales made by the
194-11 appointee, and a full exhibit and account of all of the appointee's
194-12 acts as temporary appointee.
194-13 Sec. 879. CLOSING TEMPORARY GUARDIANSHIP. The court shall
194-14 act on the list, return, exhibit, and account filed under Section
194-15 878 of this code. Whenever temporary letters expire or cease to be
194-16 effective for any reason, the court shall immediately enter an
194-17 order requiring the temporary appointee to deliver the estate
194-18 remaining in the temporary appointee's possession to the person who
194-19 is legally entitled to the possession of the estate. The temporary
194-20 appointee shall be discharged and the sureties on the bond of the
194-21 temporary appointee shall be released as to future liability on
194-22 proof that the appointee delivered the property as required by this
194-23 section.
194-24 SUBPART B. GUARDIANSHIPS FOR NONRESIDENTS
194-25 Sec. 881. NONRESIDENT GUARDIAN. (a) A nonresident of this
194-26 state may be appointed and qualified as guardian or coguardian of a
194-27 nonresident ward's estate located in this state in the same manner
195-1 provided by this code for the appointment and qualification of a
195-2 resident as guardian of the estate of an incapacitated person if:
195-3 (1) a court of competent jurisdiction in the
195-4 geographical jurisdiction in which the nonresident resides
195-5 appointed the nonresident guardian;
195-6 (2) the nonresident is qualified as guardian or as a
195-7 fiduciary legal representative by whatever name known in the
195-8 foreign jurisdiction of the property or estate of the ward located
195-9 in the jurisdiction of the foreign court; and
195-10 (3) with the written application for appointment in
195-11 the county court of any county in this state in which all or part
195-12 of the ward's estate is located, the nonresident files a complete
195-13 transcript of the proceedings from the records of the court in
195-14 which the nonresident applicant was appointed, showing the
195-15 applicant's appointment and qualification as the guardian or
195-16 fiduciary legal representative of the ward's property or estate.
195-17 (b) The transcript required by Subsection (a) of this
195-18 section must be certified to and attested by the clerk of the
195-19 foreign court or the officer of the court charged by law with
195-20 custody of the court records, under the court seal, if any. The
195-21 certificate of the judge, chief justice, or presiding magistrate,
195-22 as applicable, of the foreign court must be attached to the
195-23 transcript, certifying that the attestation of the transcript by
195-24 the clerk or legal custodian of the court records is in correct
195-25 form.
195-26 (c) If the nonresident applicant meets the requirements of
195-27 this section, without the necessity of any notice or citation, the
196-1 court shall enter an order appointing the nonresident. After the
196-2 nonresident applicant qualifies in the manner required of resident
196-3 guardians and files with the court a power of attorney appointing a
196-4 resident agent to accept service of process in all actions or
196-5 proceedings with respect to the estate, the clerk shall issue the
196-6 letters of guardianship to the nonresident guardian.
196-7 (d) After qualification, the nonresident guardian shall file
196-8 an inventory and appraisement of the estate of the ward in this
196-9 state subject to the jurisdiction of the court, as in ordinary
196-10 cases, and is subject to all applicable provisions of this code
196-11 with respect to the handling and settlement of estates by resident
196-12 guardians.
196-13 Sec. 882. NONRESIDENT AS WARD. Guardianship of the estate
196-14 of a nonresident incapacitated person who owns property in this
196-15 state may be granted, if necessary, in the same manner as for the
196-16 property of a resident of this state. A court in the county in
196-17 which the principal estate of the ward is located has jurisdiction
196-18 to appoint a guardian. The court shall take all actions and make
196-19 all necessary orders with respect to the estate of the ward for the
196-20 maintenance, support, care, or education of the ward, out of the
196-21 proceeds of the ward's estate, in the same manner as if the ward
196-22 were a resident of this state and was sent abroad by the court for
196-23 education or treatment. If a qualified nonresident guardian of the
196-24 estate later qualifies in this state under Section 881 of this
196-25 code, the court shall close the resident guardianship.
196-26 SUBPART C. INCAPACITATED SPOUSE AND COMMUNITY PROPERTY
196-27 Sec. 883. Incapacitated Spouse. When a husband or wife is
197-1 judicially declared to be incapacitated, the other spouse, in the
197-2 capacity of surviving partner of the marital partnership, acquires
197-3 full power to manage, control, and dispose of the entire community
197-4 estate, including the part of the community estate that the
197-5 incapacitated spouse legally has the power to manage in the absence
197-6 of the incapacity, without an administration. If the court finds
197-7 that it is in the best interest of the incapacitated spouse and
197-8 that the other spouse would not be disqualified to serve as
197-9 guardian under Section 681 of this code, guardianship of the estate
197-10 of the incapacitated spouse may not be necessary when the other
197-11 spouse is not incapacitated unless the incapacitated spouse owns
197-12 separate property, and the guardianship will be of the separate
197-13 property only. The qualification of a guardian of the estate of an
197-14 incapacitated spouse does not deprive the competent spouse of the
197-15 right to manage, control, and dispose of the entire community
197-16 estate as provided in this chapter.
197-17 Sec. 884. Delivery To Spouse. A guardian of the estate of
197-18 an incapacitated married person who, as guardian, is administering
197-19 community property as part of the estate of the ward, shall deliver
197-20 on demand the community property to the spouse who is not
197-21 incapacitated.
197-22 SUBPART D. RECEIVERSHIP FOR MINORS
197-23 AND OTHER INCAPACITATED PERSONS
197-24 Sec. 885. RECEIVERSHIP. (a) When the estate of a minor or
197-25 other incapacitated person or any portion of the estate of the
197-26 minor or other incapacitated person appears in danger of injury,
197-27 loss, or waste and in need of a guardianship or other
198-1 representative and there is no guardian of the estate who is
198-2 qualified in this state and a guardian is not needed, the county
198-3 judge of the county in which the minor or other incapacitated
198-4 person resides or in which the endangered estate is located shall
198-5 enter an order, with or without application, appointing a suitable
198-6 person as receiver to take charge of the estate. The court order
198-7 shall require a receiver appointed under this section to give bond
198-8 as in ordinary receiverships in an amount the judge deems necessary
198-9 to protect the estate. The court order shall specify the duties
198-10 and powers of the receiver as the judge deems necessary for the
198-11 protection, conservation, and preservation of the estate. The
198-12 clerk shall enter an order made under this section on the minutes
198-13 of the court. The person who is appointed as receiver shall make
198-14 and submit a bond for the judge's approval and shall file the bond,
198-15 when approved, with the clerk. The person who is appointed
198-16 receiver shall proceed to take charge of the endangered estate
198-17 pursuant to the powers and duties vested in the person by the order
198-18 of appointment and subsequent orders made by the judge.
198-19 (b) During the pendency of the receivership, when the needs
198-20 of the minor or other incapacitated person require the use of the
198-21 income or corpus of the estate for the education, clothing, or
198-22 subsistence of the minor or other incapacitated person, the judge,
198-23 with or without application, shall enter an order on the minutes of
198-24 the court that appropriates an amount of income or corpus that is
198-25 sufficient for that purpose. The receiver shall use the amount
198-26 appropriated by the court to pay a claim for the education,
198-27 clothing, or subsistence of the minor or other incapacitated person
199-1 that is presented to the judge for approval and ordered by the
199-2 judge to be paid.
199-3 (c) During the pendency of the receivership, when the
199-4 receiver has on hand an amount of money that belongs to the minor
199-5 or other incapacitated person that is in excess of the amount
199-6 needed for current necessities and expenses, the receiver, under
199-7 direction of the judge, may invest, lend, or contribute the excess
199-8 money or any portion of the money in the manner, for the security,
199-9 and on the terms and conditions provided by this chapter for
199-10 investments, loans, or contributions by guardians. The receiver
199-11 shall report to the judge all transactions made under this
199-12 subsection in the same manner that a report is required of a
199-13 guardian under this chapter.
199-14 (d) All necessary expenses incurred by the receiver in
199-15 administering the estate may be rendered monthly to the judge in
199-16 the form of a sworn statement of account that includes a report of
199-17 the receiver's acts, the condition of the estate, the status of the
199-18 threatened danger to the estate, and the progress made toward
199-19 abatement of the danger. If the judge is satisfied that the
199-20 statement is correct and reasonable in all respects, the judge
199-21 shall promptly enter an order approving the expenses and
199-22 authorizing the receiver to be reimbursed from the funds of the
199-23 estate in the receiver's hands. A receiver shall be compensated
199-24 for services rendered in the receiver's official capacity in the
199-25 same manner and amount as provided by this chapter for similar
199-26 services rendered by guardians of estates.
199-27 (e) When the threatened danger has abated and the estate is
200-1 no longer liable to injury, loss, or waste because there is no
200-2 guardian or other representative of the estate, the receiver shall
200-3 report to the judge, file with the clerk a full and final sworn
200-4 account of all property of the estate the receiver received, had on
200-5 hand when the receivership was pending, all sums paid out, all acts
200-6 performed by the receiver with respect to the estate, and all
200-7 property of the estate that remains in the receiver's hands on the
200-8 date of the report. On the filing of the report, the clerk shall
200-9 issue and cause to be posted a notice to all persons interested in
200-10 the welfare of the minor or other incapacitated person and shall
200-11 give personal notice to the person who has custody of the minor or
200-12 other incapacitated person to appear before the judge at a time and
200-13 place specified in the notice and contest the report and account if
200-14 the person desires.
200-15 (f) If on hearing the receiver's report and account the
200-16 judge is satisfied that the danger of injury, loss, or waste to the
200-17 estate has abated and that the report and account are correct, the
200-18 judge shall enter an order finding that the danger of injury, loss,
200-19 or waste to the estate has abated and shall direct the receiver to
200-20 deliver the estate to the person from whom the receiver took
200-21 possession as receiver, to the person who has custody of the minor
200-22 or other incapacitated person, or to another person as the judge
200-23 may find is entitled to possession of the estate. A person who
200-24 receives the estate under this subsection shall execute and file
200-25 with the clerk an appropriate receipt for the estate that is
200-26 delivered to the person. The judge's order shall discharge the
200-27 receivership and the sureties on the bond of the receiver. If the
201-1 judge is not satisfied that the danger has abated, or if the judge
201-2 is not satisfied with the receiver's report and account, the judge
201-3 shall enter an order that continues the receivership in effect
201-4 until the judge is satisfied that the danger has abated or is
201-5 satisfied with the report and account.
201-6 (g) An order or a bond, report, account, or notice in a
201-7 receivership proceeding must be recorded in the minutes of the
201-8 court.
201-9 SUBPART E. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP
201-10 Sec. 887. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP AND
201-11 ADMINISTRATION OF TERMINATED GUARDIANSHIP ASSETS. (a) When a
201-12 resident person who is a minor or other incapacitated person, or
201-13 the former ward of a guardianship terminated under Subpart C, Part
201-14 4, of this code, who are referred to in this section as "creditor,"
201-15 are without a legal guardian of the person's estate, and the person
201-16 is entitled to money in an amount that is $25,000 or less, the
201-17 right to which is liquidated and is uncontested in any pending
201-18 lawsuit, the debtor may pay the money to the county clerk of the
201-19 county in which the creditor resides to the account of the
201-20 creditor, giving the creditor's name, the nature of the creditor's
201-21 disability, and, if the creditor is a minor, the minor's age, and
201-22 the creditor's post-office address. The receipt for the money
201-23 signed by the clerk is binding on the creditor as of the date of
201-24 receipt and to the extent of the payment. The clerk, by letter
201-25 mailed to the address given by the debtor, shall apprise the
201-26 creditor of the fact that the deposit was made. On receipt of the
201-27 payment by the clerk, the clerk shall call the receipt of the
202-1 payment to the court's attention and shall invest the money as
202-2 authorized under this chapter pursuant to court order in the name
202-3 and for the account of the minor or other person entitled to the
202-4 money. Any increase, dividend, or income from an investment made
202-5 under this section shall be credited to the account of the minor or
202-6 other person entitled to the investment. Any money that is
202-7 deposited under the terms of this section that has not been paid
202-8 out shall be subject to the provisions of this chapter not later
202-9 than October 1, 1993.
202-10 (b) Not later than March 1 of each calendar year, the clerk
202-11 of the court shall make a written report to the court of the status
202-12 of an investment made by the clerk under this section. The report
202-13 must contain:
202-14 (1) the amount of the original investment or the
202-15 amount of the investment at the last annual report, whichever is
202-16 later;
202-17 (2) any increase, dividend, or income from such
202-18 investment since the last annual report;
202-19 (3) the total amount of the investment and all
202-20 increases, dividends, or income at the date of the report; and
202-21 (4) the name of the depository or the type of
202-22 investment.
202-23 (c) The father or mother, or unestranged spouse, of the
202-24 creditor, with priority being given to the spouse who resides in
202-25 this state or if there is no spouse and both father and mother are
202-26 dead or are nonresidents of this state, then the person who resides
202-27 in this state who has actual custody of the creditor, as custodian
203-1 and on filing with the clerk written application and bond approved
203-2 by the county judge of the county, may withdraw the money from the
203-3 clerk for the use and benefit of the creditor, the bond to be in
203-4 double the amount of the money and to be payable to the judge or
203-5 the judge's successors in office and to be conditioned that the
203-6 custodian will use the money for the creditor's benefit under
203-7 directions of the court and that the custodian, when legally called
203-8 on to do so, will faithfully account to the creditor and the
203-9 creditor's heirs or legal representatives for the money and any
203-10 increase to the money on the removal of the disability to which the
203-11 creditor is subject, or on the creditor's death, or the appointment
203-12 of a guardian for the creditor. A fee or commission may not be
203-13 allowed to the custodian for taking care of, handling, or expending
203-14 the money withdrawn by the custodian.
203-15 (d) When the custodian has expended the money in accordance
203-16 with directions of the court or has otherwise complied with the
203-17 terms of the custodian's bond by accounting for the money and any
203-18 increase in the money, the custodian shall file with the county
203-19 clerk of the county the custodian's sworn report of the custodian's
203-20 accounting. The filing of the custodian's report, when approved by
203-21 the court, operates as a discharge of the person as custodian and
203-22 of the person's sureties from all further liability under the bond.
203-23 The court shall satisfy itself that the report is true and correct
203-24 and may require proof as in other cases.
203-25 (e) When a nonresident minor, a nonresident person who is
203-26 adjudged by a court of competent jurisdiction to be incapacitated,
203-27 or the former ward of a guardianship terminated under Subpart C,
204-1 Part 4, of this code who has no legal guardian qualified in this
204-2 state is entitled to money in an amount that is not more than
204-3 $25,000 owing as a result of transactions within this state, the
204-4 right to which is liquidated and is uncontested in any pending
204-5 lawsuit in this state, the debtor in this state may pay the money
204-6 to the guardian of the creditor who is duly qualified in the
204-7 domiciliary jurisdiction or to the county clerk of any county in
204-8 this state in which real property owned by the nonresident person
204-9 is located. If the person is not known to own any real property in
204-10 any county in this state the debtor has the right to pay the money
204-11 to the county clerk of the county of this state in which the debtor
204-12 resides. In either case, the debtor's payment to the clerk is for
204-13 the use and benefit and for the account of the nonresident
204-14 creditor. The receipt for the payment signed by the clerk that
204-15 recites the name of the creditor and the post office address of the
204-16 creditor, if known, is binding on the creditor as of the date and
204-17 to the extent of the payment. The clerk shall handle the money
204-18 paid to the clerk by the debtor in the same manner as provided for
204-19 cases of payments to the accounts of residents of this state under
204-20 Subsections (a)-(d) of this section. All applicable provisions of
204-21 Subsections (a)-(d) of this section apply to the handling and
204-22 disposition of money or any increase, dividend, or income paid to
204-23 the clerk for the use, benefit, and account of the nonresident
204-24 creditor.
204-25 (f) If a person who is authorized to withdraw the money does
204-26 not withdraw the money from the clerk as provided for in this
204-27 section, the creditor, after termination of the creditor's
205-1 disability, or the subsequent personal representative of the
205-2 creditor or the creditor's heirs may withdraw, at any time and
205-3 without special bond for the purpose, the money on simply
205-4 exhibiting to the clerk an order of the county or probate court of
205-5 the county where the money is held by the clerk that directs the
205-6 clerk to deliver the money to the creditor, to the creditor's
205-7 personal representative, or to the creditor's heirs named in the
205-8 order. Before the court issues an order under this subsection, the
205-9 person's identity and the person's credentials must be proved to
205-10 the court's satisfaction.
205-11 (g) When it is made to appear to the judge of a county
205-12 court, district court, or other court of this state, by an
205-13 affidavit executed by the superintendent, business manager, or
205-14 field representative of any eleemosynary institution of this state,
205-15 that a certain inmate in the institution is a person who has a
205-16 mental disability, an incapacitated person, or a person whose
205-17 mental illness or mental incapacity, or both, renders the person
205-18 incapable of caring for himself and of managing the person's own
205-19 property and financial affairs, there is no known legal guardian
205-20 appointed for the estate of the inmate, and there is on deposit in
205-21 the court registry a certain sum of money that belongs to the
205-22 inmate that does not exceed $10,000, the court may order the
205-23 disposition of the funds as provided by this subsection. The
205-24 court, on satisfactory proof by affidavit or otherwise that the
205-25 inmate is a person who has a mental disability, an incapacitated
205-26 person, or a person whose mental illness or mental incapacity, or
205-27 both, renders the inmate incapable of caring for the inmate's self
206-1 and of managing the inmate's own property and financial affairs and
206-2 is without a legally appointed guardian of the inmate's estate, may
206-3 by order direct the clerk of the court to pay the money to the
206-4 institution for the use and benefit of the inmate. The state
206-5 institution to which the payment is made may not be required to
206-6 give bond or security for receiving the fund from the court
206-7 registry, and the receipt from the state institution for the
206-8 payment, or the canceled check or warrant by which the payment was
206-9 made, shall be sufficient evidence of the disposition of the
206-10 payment. The clerk of the court is relieved of further
206-11 responsibility for the disposition. On receipt of the money, the
206-12 institution shall deposit all of the amount of money received to
206-13 the trust account of the inmate. The money deposited by the
206-14 institution in the trust account is to be used by or for the
206-15 personal use of the owner of the trust account under the rules or
206-16 custom of the institution in the expenditure of the funds by the
206-17 inmate or for the use and benefit of the inmate by the responsible
206-18 officer of the institution. This subsection is cumulative of all
206-19 other laws affecting the rights of a person who has a mental
206-20 disability, an incapacitated person, or a person who has a mental
206-21 illness and affecting money that belongs to the person as an inmate
206-22 of a state eleemosynary institution. If the inmate dies leaving a
206-23 balance in the inmate's trust account, the balance may be applied
206-24 to the burial expenses of the inmate or applied to the care,
206-25 support, and treatment account of the inmate at the eleemosynary
206-26 institution. After the expenditure of all funds in the trust
206-27 account or after the death of the inmate, the responsible officer
207-1 shall furnish a statement of expenditures of the funds to the
207-2 nearest relative who is entitled to receive the statement. A copy
207-3 of the statement shall be filed with the court that first granted
207-4 the order to dispose of the funds in accordance with the provisions
207-5 of this chapter.
207-6 SUBPART F. SALE OF PROPERTY OF MINOR
207-7 Sec. 889. SALE OF PROPERTY OF A MINOR BY A PARENT WITHOUT
207-8 GUARDIANSHIP. (a) When the value of the minor's interest in real
207-9 or personal property in an estate does not exceed $25,000, a
207-10 natural or adoptive parent of a minor who is not a ward may apply
207-11 to the court for an order to sell the real or personal property of
207-12 a minor in an estate without being appointed guardian. A minor may
207-13 not disaffirm a sale of property pursuant to a court order under
207-14 this section.
207-15 (b) The parent shall apply to the court under oath for the
207-16 sale of the property. Venue for the application under this section
207-17 is the same as venue for an application for the appointment of a
207-18 guardian for a minor. The application must contain:
207-19 (1) a legal description of the real property and a
207-20 description that identifies the personal property;
207-21 (2) the name of the minor and the minor's interest in
207-22 the property;
207-23 (3) the name of the purchaser;
207-24 (4) a statement that the sale of the minor's interest
207-25 in the property is for cash; and
207-26 (5) a statement that all funds received by the parent
207-27 shall be used for the use and benefit of the minor.
208-1 (c) On receipt of the application, the court shall set the
208-2 application for hearing at a date not earlier than five days from
208-3 the date of the filing of the application. If the court deems it
208-4 necessary, the court may cause citation to be issued.
208-5 (d) At the time of the hearing of the application filed
208-6 under this section, the court shall order the sale of the property
208-7 if the court is satisfied from the evidence that the sale is in the
208-8 best interests of the minor. The court may require an independent
208-9 appraisal of the property to be sold to establish the minimum sale
208-10 price.
208-11 (e) When the court enters the order of sale, the purchaser
208-12 of the property shall pay the proceeds of the sale belonging to the
208-13 minor into the court registry.
208-14 (f) Nothing in this section prevents the proceeds deposited
208-15 in the registry from being withdrawn from the court registry under
208-16 Section 885 of this code.
208-17 SUBPART G. NONRESIDENT GUARDIANS
208-18 Sec. 891. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
208-19 FROM STATE. A nonresident guardian, whether or not qualified under
208-20 this code, may remove personal property of the ward out of the
208-21 state if:
208-22 (1) the removal does not conflict with the tenure of
208-23 the property or the terms and limitations of the guardianship under
208-24 which the property is held; and
208-25 (2) all debts known to exist against the estate in
208-26 this state are paid or secured by bond payable to and approved by
208-27 the judge of the court in which guardianship proceedings are
209-1 pending in this state.
209-2 Sec. 892. DELIVERY OF PROPERTY. A resident executor,
209-3 administrator, or guardian who has any of the estate of a ward may
209-4 be ordered by the court to deliver the estate to a duly qualified
209-5 and acting nonresident guardian of the ward.
209-6 SECTION 2. Section 2(e), Texas Probate Code, is amended to
209-7 read as follows:
209-8 (e) Nature of Proceeding. The administration of the estate
209-9 of a decedent <or ward>, from the filing of the application for
209-10 probate and administration, or for administration, until the decree
209-11 of final distribution and the discharge of the last personal
209-12 representative, shall be considered as one proceeding for purposes
209-13 of jurisdiction. The entire proceeding is a proceeding in rem.
209-14 SECTION 3. Section 3, Texas Probate Code, is amended to read
209-15 as follows:
209-16 Sec. 3. Definitions and Use of Terms. Except as otherwise
209-17 provided by Chapter XIII of this Code, when <When> used in this
209-18 Code, unless otherwise apparent from the context:
209-19 (a) "Authorized corporate surety" means a domestic or
209-20 foreign corporation authorized to do business in the State of Texas
209-21 for the purpose of issuing surety, guaranty or indemnity bonds
209-22 guaranteeing the fidelity of executors and<,> administrators<, and
209-23 guardians>.
209-24 (b) "Child" includes an adopted child, whether adopted
209-25 by any existing or former statutory procedure or by acts of
209-26 estoppel, but, unless expressly so stated herein, does not include
209-27 a child who has no presumed father.
210-1 (c) "Claims" include liabilities of a decedent which
210-2 survive, including taxes, whether arising in contract or in tort or
210-3 otherwise, funeral expenses, the expense of a tombstone, expenses
210-4 of administration, estate and inheritance taxes, <liabilities
210-5 against the estate of a minor or incompetent,> and debts due such
210-6 estates.
210-7 (d) "Corporate fiduciary" means a trust company or
210-8 bank having trust powers, existing or doing business under the laws
210-9 of this state or of the United States, which is authorized by law
210-10 to act under the order or appointment of any court of record,
210-11 without giving bond, as <guardian,> receiver, trustee, executor,
210-12 administrator, or, although without general depository powers,
210-13 depository for any moneys paid into court, or to become sole
210-14 guarantor or surety in or upon any bond required to be given under
210-15 the laws of this state.
210-16 (e) "County Court" and "Probate Court" are synonymous
210-17 terms and denote county courts in the exercise of their probate
210-18 jurisdiction, courts created by statute and authorized to exercise
210-19 original probate jurisdiction, and district courts exercising
210-20 probate jurisdiction in contested matters.
210-21 (f) "County Judge," "Probate Judge," and "Judge"
210-22 denote the presiding judge of any court having original
210-23 jurisdiction over probate proceedings, whether it be a county court
210-24 in the exercise of its probate jurisdiction, a court created by
210-25 statute and authorized to exercise probate jurisdiction, or a
210-26 district court exercising probate jurisdiction in contested
210-27 matters.
211-1 (g) "Court" denotes and includes both a county court
211-2 in the exercise of its probate jurisdiction, a court created by
211-3 statute and authorized to exercise original probate jurisdiction,
211-4 or a district court exercising original probate jurisdiction in
211-5 contested matters.
211-6 (h) "Devise," when used as a noun, includes a
211-7 testamentary disposition of real or personal property, or of both.
211-8 When used as a verb, "devise" means to dispose of real or personal
211-9 property, or of both, by will.
211-10 (i) "Devisee" includes legatee.
211-11 (j) "Distributee" denotes a person entitled to the
211-12 estate of a decedent under a lawful will, or under the statutes of
211-13 descent and distribution.
211-14 (k) "Docket" means the probate docket.
211-15 (l) "Estate" denotes the real and personal property of
211-16 a decedent <or ward>, both as such property originally existed and
211-17 as from time to time changed in form by sale, reinvestment, or
211-18 otherwise, and as augmented by any accretions and additions thereto
211-19 (including any property to be distributed to the representative of
211-20 the decedent by the trustee of a trust which terminates upon the
211-21 decedent's death) and substitutions therefor, and as diminished by
211-22 any decreases therein and distributions therefrom.
211-23 (m) "Exempt property" refers to that property of a
211-24 decedent's estate which is exempt from execution or forced sale by
211-25 the Constitution or laws of this State, and to the allowance in
211-26 lieu thereof.
211-27 (n) "Habitual drunkard" and "common drunkard" are
212-1 synonymous and denote one who, by reason of the habitual use of
212-2 intoxicating liquor, drugs, or a toxic inhalant as defined by
212-3 Section 462.001, Health and Safety Code, is incapable of taking
212-4 care of himself or managing his property and financial affairs.
212-5 (o) "Heirs" denote those persons, including the
212-6 surviving spouse, who are entitled under the statutes of descent
212-7 and distribution to the estate of a decedent who dies intestate.
212-8 (p) "Incompetents" or "Incompetent persons" are
212-9 persons non compos mentis, mentally disabled persons, insane
212-10 persons, common or habitual drunkards, and other persons who are
212-11 mentally incompetent to care for themselves or to manage their
212-12 property and financial affairs.
212-13 (q) "Independent executor" means the personal
212-14 representative of an estate under independent administration as
212-15 provided in Section 145 of this Code. The term "independent
212-16 executor" includes the term "independent administrator."
212-17 (r) "Interested persons" or "persons interested" means
212-18 heirs, devisees, spouses, creditors, or any others having a
212-19 property right in, or claim against, the estate being administered;
212-20 and anyone interested in the welfare of a minor or incompetent
212-21 ward.
212-22 (s) "Legacy" includes any gift or devise by will,
212-23 whether of personalty or realty. "Legatee" includes any person
212-24 entitled to a legacy under a will.
212-25 (t) "Minors" are all persons under eighteen years of
212-26 age who have never been married or who have not had disabilities of
212-27 minority removed for general purposes.
213-1 (u) "Minutes" means the probate minutes.
213-2 (v) "Mortgage" or "Lien" includes deed of trust,
213-3 vendor's lien, chattel mortgage, mechanic's, materialman's or
213-4 laborer's lien, judgment, attachment or garnishment lien, pledge by
213-5 hypothecation, and Federal or State tax liens.
213-6 (w) "Net estate" means the real and personal property
213-7 of a decedent, exclusive of homestead rights, exempt property, the
213-8 family allowance and enforceable claims against the estate.
213-9 (x) "Person" includes natural persons and
213-10 corporations.
213-11 (y) "Persons of unsound mind" are persons non compos
213-12 mentis, mentally disabled persons, insane persons, and other
213-13 persons who are mentally incompetent to care for themselves or to
213-14 manage their property and financial affairs.
213-15 (z) "Personal property" includes interests in goods,
213-16 money, choses in action, evidence of debts, and chattels real.
213-17 (aa) "Personal representative" or "Representative"
213-18 includes executor, independent executor, administrator, independent
213-19 administrator, temporary administrator, <guardian, and temporary
213-20 guardian,> together with their successors. The inclusion of
213-21 independent executors herein shall not be held to subject such
213-22 representatives to control of the courts in probate matters with
213-23 respect to settlement of estates except as expressly provided by
213-24 law.
213-25 (bb) "Probate matter," "Probate proceedings,"
213-26 "Proceeding in probate," and "Proceedings for probate" are
213-27 synonymous and include a matter or proceeding relating to
214-1 <guardianship, as well as a matter or proceeding relating to> the
214-2 estate of a decedent<, and proceedings regarding incompetents>.
214-3 (cc) "Property" includes both real and personal
214-4 property.
214-5 (dd) "Real property" includes estates and interests in
214-6 lands, corporeal or incorporeal, legal or equitable, other than
214-7 chattels real.
214-8 (ee) "Surety" includes both personal and corporate
214-9 sureties.
214-10 (ff) "Will" includes codicil; it also includes a
214-11 testamentary instrument which merely:
214-12 (1) appoints an executor or guardian;
214-13 (2) directs how property may not be disposed of;
214-14 or
214-15 (3) revokes another will.
214-16 (gg) The singular number includes the plural; the
214-17 plural number includes the singular.
214-18 (hh) The masculine gender includes the feminine and
214-19 neuter.
214-20 (ii) "Statutory probate court" refers to any statutory
214-21 court presently in existence or created after the passage of this
214-22 Act, the jurisdiction of which is limited by statute to the general
214-23 jurisdiction of a probate court, and such courts whose statutorily
214-24 designated name contains the word "probate." County courts at law
214-25 exercising probate jurisdiction are not statutory probate courts
214-26 under this Code unless their statutorily designated name includes
214-27 the word "probate."
215-1 (jj) "Next of kin" includes an adopted child or his or
215-2 her descendents and the adoptive parent of the adopted child.
215-3 (kk) "Charitable organization" means:
215-4 (1) a nonprofit corporation, trust, community
215-5 chest, fund, foundation, or other entity that is exempt from
215-6 federal income tax under Section 501(c)(3) of the Internal Revenue
215-7 Code of 1986 because the entity is organized and operated
215-8 exclusively for religious, charitable, scientific, educational, or
215-9 literary purposes, testing for public safety, prevention of cruelty
215-10 to children or animals, or promotion of amateur sports competition;
215-11 or
215-12 (2) any other entity or organization that is
215-13 organized and operated exclusively for the purposes listed in
215-14 Section 501(c)(3) of the Internal Revenue Code of 1986.
215-15 (ll) "Governmental agency of the state" means:
215-16 (1) an incorporated city or town, a county, a
215-17 public school district, a special-purpose district or authority, or
215-18 a district, county, or justice of the peace court;
215-19 (2) a board, commission, department, office, or
215-20 other agency in the executive branch of state government, including
215-21 an institution of higher education as defined by Section 61.003,
215-22 Education Code;
215-23 (3) the legislature or a legislative agency; and
215-24 (4) the supreme court, the court of criminal
215-25 appeals, a court of appeals, or the State Bar of Texas or another
215-26 judicial agency having statewide jurisdiction.
215-27 SECTION 4. Section 4, Texas Probate Code, is amended to read
216-1 as follows:
216-2 Sec. 4. Jurisdiction of County Court With Respect to Probate
216-3 Proceedings. The county court shall have the general jurisdiction
216-4 of a probate court. It shall probate wills, <appoint guardians of
216-5 minors and incompetents,> grant letters testamentary and of
216-6 administration <and guardianship>, settle accounts of personal
216-7 representatives, and transact all business appertaining to estates
216-8 subject to administration <or guardianship>, including the
216-9 settlement, partition, and distribution of such estates. <It may
216-10 also appoint guardians for other persons where it is necessary that
216-11 a guardian be appointed to receive funds from any governmental
216-12 source or agency.>
216-13 SECTION 5. Sections 5(a), (b), (c), and (e), Texas Probate
216-14 Code, are amended to read as follows:
216-15 (a) The district court shall have original control and
216-16 jurisdiction over executors and<,> administrators<, guardians and
216-17 wards> under such regulations as may be prescribed by law.
216-18 (b) In those counties where there is no statutory probate
216-19 court, county court at law or other statutory court exercising the
216-20 jurisdiction of a probate court, all applications, petitions and
216-21 motions regarding probate and<,> administrations<, guardianships,
216-22 limited guardianships, and mental illness matters> shall be filed
216-23 and heard in the county court, except that in contested probate
216-24 matters, the judge of the county court may on his own motion (or
216-25 shall on the motion of any party to the proceeding, according to
216-26 the motion) request as provided by Section 25.0022, Government
216-27 Code, the assignment of a statutory probate judge to hear the
217-1 contested portion of the proceeding, or transfer the contested
217-2 portion of the proceeding to the district court, which may then
217-3 hear contested matter as if originally filed in district court.
217-4 The county court shall continue to exercise jurisdiction over the
217-5 management of the estate with the exception of the contested matter
217-6 until final disposition of the contested matter is made by the
217-7 assigned judge or the district court. In contested matters
217-8 transferred to the district court in those counties, the district
217-9 court, concurrently with the county court, shall have the general
217-10 jurisdiction of a probate court. Upon resolution of all pending
217-11 contested matters, the contested portion of the probate proceeding
217-12 shall be transferred by the district court to the county court for
217-13 further proceedings not inconsistent with the orders of the
217-14 district court. If a contested portion of the proceeding is
217-15 transferred to a district court under this subsection, the clerk of
217-16 the district court may perform in relation to the transferred
217-17 portion of the proceeding any function a county clerk may perform
217-18 in that type of contested proceeding.
217-19 (c) In those counties where there is a statutory probate
217-20 court, county court at law, or other statutory court exercising the
217-21 jurisdiction of a probate court, all applications, petitions and
217-22 motions regarding probate and<,> administrations<, guardianships,
217-23 limited guardianships, and mental illness matters> shall be filed
217-24 and heard in such courts and the constitutional county court,
217-25 rather than in the district courts, unless otherwise provided by
217-26 the legislature, and the judges of such courts may hear any of such
217-27 matters sitting for the judge of any of such courts. In contested
218-1 probate matters, the judge of the constitutional county court may
218-2 on his own motion, and shall on the motion of any party to the
218-3 proceeding, transfer the proceeding to the statutory probate court,
218-4 county court at law, or other statutory court exercising the
218-5 jurisdiction of a probate court, which may then hear the proceeding
218-6 as if originally filed in such court.
218-7 (e) All courts exercising original probate jurisdiction
218-8 shall have the power to hear all matters incident to an estate.
218-9 When a surety is called on to perform in place of an administrator
218-10 <or guardian>, all courts exercising original probate jurisdiction
218-11 may award judgment against the personal representative in favor of
218-12 his surety in the same suit.
218-13 SECTION 6. Sections 5A(a) and (b), Texas Probate Code, are
218-14 amended to read as follows:
218-15 (a) In proceedings in the constitutional county courts and
218-16 statutory county courts at law, the phrases "appertaining to
218-17 estates" and "incident to an estate" in this Code include the
218-18 probate of wills, the issuance of letters testamentary and of
218-19 administration, the determination of heirship, and also include,
218-20 but are not limited to, all claims by or against an estate, all
218-21 actions for trial of title to land incident to an estate and for
218-22 the enforcement of liens thereon incident to an estate, all actions
218-23 for trial of the right of property incident to an estate, and
218-24 actions to construe wills, and generally all matters relating to
218-25 the settlement, partition, and distribution of estates of <wards
218-26 and> deceased persons.
218-27 (b) In proceedings in the statutory probate courts and
219-1 district courts, the phrases "appertaining to estates" and
219-2 "incident to an estate" in this Code include the probate of wills,
219-3 the issuance of letters testamentary and of administration, and the
219-4 determination of heirship, and also include, but are not limited
219-5 to, all claims by or against an estate, all actions for trial of
219-6 title to land and for the enforcement of liens thereon, all actions
219-7 for trial of the right of property, all actions to construe wills,
219-8 the interpretation and administration of testamentary trusts and
219-9 the applying of constructive trusts, and generally all matters
219-10 relating to the settlement, partition, and distribution of estates
219-11 of <wards and> deceased persons. All statutory probate courts may,
219-12 in the exercise of their jurisdiction, notwithstanding any other
219-13 provisions of this Code, hear all suits, actions, and applications
219-14 filed against or on behalf of any <guardianship,> heirship
219-15 proceeding<,> or decedent's estate, including estates administered
219-16 by an independent executor. This subsection shall be construed in
219-17 conjunction with and in harmony with Section 145 and all other
219-18 sections of this Code dealing with independent executors, but shall
219-19 not be construed so as to increase permissible judicial control
219-20 over independent executors. All statutory probate courts shall
219-21 have the same powers over independent executors that are
219-22 exercisable by the district courts. In situations where the
219-23 jurisdiction of a statutory probate court is concurrent with that
219-24 of a district court, any cause of action appertaining to estates or
219-25 incident to an estate shall be brought in a statutory probate court
219-26 rather than in the district court.
219-27 SECTION 7. Section 12(c), Texas Probate Code, is amended to
220-1 read as follows:
220-2 (c) Suit for Fiduciary. No security for costs shall be
220-3 required of an executor or<,> administrator<, or guardian>
220-4 appointed by a court of this state in any suit brought by him in
220-5 his fiduciary character.
220-6 SECTION 8. Section 13, Texas Probate Code, is amended to
220-7 read as follows:
220-8 Sec. 13. Judge's Probate Docket. The county clerk shall
220-9 keep a record book to be styled "Judge's Probate Docket," and shall
220-10 enter therein:
220-11 (a) The name of each person upon whose person or
220-12 estate proceedings are had or sought to be had.
220-13 (b) The name of the executor or administrator <or
220-14 guardian of such estate or person,> or of the applicant for
220-15 letters.
220-16 (c) The date of the filing of the original application
220-17 for probate proceedings.
220-18 (d) A minute of each order, judgment, decree, and
220-19 proceeding had in each estate, with the date thereof.
220-20 (e) A number for each estate upon the docket in the
220-21 order in which proceedings are commenced, and each paper filed in
220-22 an estate shall be given the corresponding docket number of the
220-23 estate.
220-24 SECTION 9. Section 14, Texas Probate Code, is amended to
220-25 read as follows:
220-26 Sec. 14. Claim Docket. The county clerk shall also keep a
220-27 record book to be styled "Claim Docket," and shall enter therein
221-1 all claims presented against an estate for approval by the court.
221-2 This docket shall be ruled in sixteen columns at proper intervals
221-3 from top to bottom, with a short note of the contents at the top of
221-4 each column. One or more pages shall be assigned to each estate.
221-5 The following information shall be entered in the respective
221-6 columns beginning with the first or marginal column: The names of
221-7 claimants in the order in which their claims are filed; the amount
221-8 of the claim; its date; the date of filing; when due; the date from
221-9 which it bears interest; the rate of interest; when allowed by the
221-10 executor or administrator <or guardian>; the amount allowed; the
221-11 date of rejection; when approved; the amount approved; when
221-12 disapproved; the class to which the claim belongs; when established
221-13 by judgment of a court; the amount of such judgment.
221-14 SECTION 10. Section 15, Texas Probate Code, is amended to
221-15 read as follows:
221-16 Sec. 15. Probate Minutes and Papers to be Recorded Therein.
221-17 The county clerk shall keep a record book styled "Probate Minutes,"
221-18 and shall enter therein in full all orders, judgments, decrees, and
221-19 proceedings of the court, together with the following:
221-20 (a) All applications for the probate of wills and for
221-21 the granting of administration <or guardianship>.
221-22 (b) All citations and notices, whether published or
221-23 posted, with the returns thereon.
221-24 (c) All wills and the testimony upon which the same
221-25 are admitted to probate, provided that the substance only of
221-26 depositions shall be recorded.
221-27 (d) All bonds and official oaths.
222-1 (e) All inventories, appraisements, and lists of
222-2 claims.
222-3 (f) All exhibits and accounts.
222-4 (g) All reports of hiring, renting, or sale.
222-5 (h) All applications for sale or partition of real
222-6 estate and reports of sale and of commissioners of partition.
222-7 (i) All applications for authority to execute leases
222-8 for mineral development, or for pooling or unitization of lands,
222-9 royalty, or other interest in minerals, or to lend or invest money.
222-10 (j) All reports of lending or investing money.
222-11 SECTION 11. Section 19, Texas Probate Code, is amended to
222-12 read as follows:
222-13 Sec. 19. Call of the Dockets. The judge of the court in
222-14 which probate proceedings are pending, at such times as he shall
222-15 determine, shall call the estates of decedents<, minors and
222-16 incompetents> in their regular order upon both the probate and
222-17 claim dockets and make such orders as shall be necessary.
222-18 SECTION 12. Section 24, Texas Probate Code, is amended to
222-19 read as follows:
222-20 Sec. 24. Enforcement of Orders. The county or probate judge
222-21 may enforce obedience to all his lawful orders against executors
222-22 and<,> administrators <and guardians> by attachment and
222-23 imprisonment, but no such imprisonment shall exceed three days for
222-24 any one offense, unless otherwise expressly so provided in this
222-25 Code.
222-26 SECTION 13. Section 26, Texas Probate Code, is amended to
222-27 read as follows:
223-1 Sec. 26. Attachments for Property. Whenever complaint in
223-2 writing, under oath, shall be made to the county or probate judge
223-3 by any person interested in the estate of a decedent<, minor or
223-4 incompetent> that the executor or administrator <or guardian> is
223-5 about to remove said estate, or any part thereof, beyond the limits
223-6 of the State, such judge may order a writ to issue, directed "to
223-7 any sheriff or any constable within the State of Texas," commanding
223-8 him to seize such estate, or any part thereof, and hold the same
223-9 subject to such further orders as such judge shall make on such
223-10 complaint. No such writ shall issue unless the complainant shall
223-11 give bond, in such sum as the judge shall require, payable to the
223-12 executor or administrator <or guardian> of such estate, conditioned
223-13 for the payment of all damages and costs that shall be recovered
223-14 for the wrongful suing out of such writ. Provided, however, that
223-15 no writ of attachment directed to the sheriff or any constable of a
223-16 specific county within this State shall be held defective if such
223-17 writ was properly executed within such county by such officer.
223-18 SECTION 14. Section 28, Texas Probate Code, is amended to
223-19 read as follows:
223-20 Sec. 28. Personal Representative to Serve Pending Appeal of
223-21 Appointment. Pending appeals from orders or judgments appointing
223-22 administrators <or guardians> or temporary administrators <or
223-23 guardians>, the appointees shall continue to act as such and shall
223-24 continue the prosecution of any suits then pending in favor of the
223-25 estate.
223-26 SECTION 15. Section 29, Texas Probate Code, is amended to
223-27 read as follows:
224-1 Sec. 29. Appeal Bonds of Personal Representatives. When an
224-2 appeal is taken by an executor or<,> administrator<, or guardian>,
224-3 no bond shall be required, unless such appeal personally concerns
224-4 him, in which case he must give the bond.
224-5 SECTION 16. Section 31, Texas Probate Code, is amended to
224-6 read as follows:
224-7 Sec. 31. Bill of Review. Any person interested may, by a
224-8 bill of review filed in the court in which the probate proceedings
224-9 were had, have any decision, order, or judgment rendered by the
224-10 court, or by the judge thereof, revised and corrected on showing
224-11 error therein; but no process or action under such decision, order
224-12 or judgment shall be stayed except by writ of injunction, and no
224-13 bill of review shall be filed after two years have elapsed from the
224-14 date of such decision, order, or judgment. <Persons non compos
224-15 mentis and minors shall have two years after the removal of their
224-16 respective disabilities within which to apply for a bill of
224-17 review.>
224-18 SECTION 17. Section 32, Texas Probate Code, is amended to
224-19 read as follows:
224-20 Sec. 32. Common Law Applicable. The rights, powers and
224-21 duties of executors and<,> administrators<, and guardians> shall be
224-22 governed by the principles of the common law, when the same do not
224-23 conflict with the provisions of the statutes of this State.
224-24 SECTION 18. Section 33(j), Texas Probate Code, is amended to
224-25 read as follows:
224-26 (j) Request for Notice. At any time after an application is
224-27 filed for the purpose of commencing any proceeding in probate,
225-1 including, but not limited to, a proceeding for the probate of a
225-2 will, grant of letters testamentary or of administration and<,>
225-3 determination of heirship, <and the grant of letters of
225-4 guardianship,> any person interested in the estate <or welfare of a
225-5 ward,> may file with the clerk a request in writing that he be
225-6 notified of any and all, or of any specifically designated,
225-7 motions, applications, or pleadings filed by any person, or by any
225-8 particular persons specifically designated in the request. The
225-9 fees and costs for such notices shall be borne by the person
225-10 requesting them, and the clerk may require a deposit to cover the
225-11 estimated costs of furnishing such person with the notice or
225-12 notices requested. The clerk shall thereafter send to such person
225-13 by ordinary mail copies of any of the documents specified in the
225-14 request. Failure of the clerk to comply with the request shall not
225-15 invalidate any proceeding.
225-16 SECTION 19. Section 34A, Texas Probate Code, is amended to
225-17 read as follows:
225-18 Sec. 34A. <GUARDIANS AND> Attorneys Ad Litem. The judge of
225-19 a probate court may appoint <a guardian ad litem,> an attorney ad
225-20 litem<, or, if necessary, both,> to represent the interests of a
225-21 person having a legal disability, a nonresident, an unborn or
225-22 unascertained person, or an unknown heir in any probate proceeding.
225-23 Each <guardian ad litem and> attorney ad litem appointed under this
225-24 section is entitled to reasonable compensation for services in the
225-25 amount set by the court and to be taxed as costs in the proceeding.
225-26 SECTION 20. Section 35, Texas Probate Code, is amended to
225-27 read as follows:
226-1 Sec. 35. Waiver of Notice. Any person legally competent who
226-2 is interested in any hearing in a proceeding in probate may, in
226-3 person or by attorney, waive in writing notice of such hearing. A
226-4 <guardian of the estate or a guardian ad litem may make such a
226-5 waiver on behalf of his ward, and a> trustee may make such a waiver
226-6 on behalf of the beneficiary of his trust. A consul or other
226-7 representative of a foreign government, whose appearance has been
226-8 entered as provided by law on behalf of any person residing in a
226-9 foreign country, may make such waiver of notice on behalf of such
226-10 person. Any person who submits to the jurisdiction of the court in
226-11 any hearing shall be deemed to have waived notice thereof.
226-12 SECTION 21. Section 36, Texas Probate Code, is amended to
226-13 read as follows:
226-14 Sec. 36. Duty and Responsibility of Judge. It shall be the
226-15 duty of each county and probate court to use reasonable diligence
226-16 to see that personal representatives of estates being administered
226-17 under orders of the court<, guardians of the persons of wards,> and
226-18 other officers of the court<,> perform the duty enjoined upon them
226-19 by law pertaining to such estates <and wards>. The judge shall
226-20 annually, if in his opinion the same be necessary, examine the
226-21 condition of each of said estates<, the well-being of each ward of
226-22 the court,> and the solvency of the bonds of personal
226-23 representatives of estates <estate and guardians of persons>. He
226-24 shall, at any time he finds that the personal representative's bond
226-25 is not sufficient to protect such estate <or ward>, require such
226-26 personal representatives to execute a new bond in accordance with
226-27 law. In each case, he shall notify the personal representative,
227-1 and the sureties on the bond, as provided by law; and should damage
227-2 or loss result to estates <or wards> through the gross neglect of
227-3 the judge to use reasonable diligence in the performance of his
227-4 duty, he shall be liable on his bond to those damaged by such
227-5 neglect.
227-6 SECTION 22. The heading to Chapter V, Texas Probate Code, is
227-7 amended to read as follows:
227-8 CHAPTER V. PROBATE AND<,> GRANT OF ADMINISTRATION<,
227-9 AND GUARDIANSHIP>
227-10 SECTION 23. The heading to Chapter VI, Texas Probate Code,
227-11 is amended to read as follows:
227-12 CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION
227-13 <AND GUARDIANSHIP>
227-14 SECTION 24. The heading to Part 1, Chapter VI, Texas Probate
227-15 Code, is amended to read as follows:
227-16 PART 1. TEMPORARY ADMINISTRATION IN THE INTEREST OF <(A)>
227-17 ESTATES OF DEPENDENTS<, AND (B) PERSONS OR ESTATES OF MINORS
227-18 AND INCOMPETENTS>
227-19 SECTION 25. Section 133, Texas Probate Code, is amended to
227-20 read as follows:
227-21 Sec. 133. Powers of Temporary ADMINISTRATORS <Appointees>.
227-22 <(a) Temporary Administrators.> Temporary administrators shall
227-23 have and exercise only such rights and powers as are specifically
227-24 expressed in the order of the court appointing them, and as may be
227-25 expressed in subsequent orders of the court. Where a court, by a
227-26 subsequent order, extends the rights and powers of a temporary
227-27 administrator, it may require additional bond commensurate with
228-1 such extension. Any acts performed by temporary administrators
228-2 that are not so expressly authorized shall be void.
228-3 <(b) Temporary Guardianships. All the provisions of this
228-4 Code relating to the guardianship of persons and estates of minors,
228-5 persons of unsound mind, and habitual drunkards shall apply to
228-6 temporary guardianship of the persons and estates of such persons,
228-7 in so far as the same are applicable.>
228-8 SECTION 26. The heading to Section 135, Texas Probate Code,
228-9 is amended to read as follows:
228-10 Sec. 135. Closing Temporary Administration <or Guardianship>
228-11 SECTION 27. The heading to Chapter VII, Texas Probate Code,
228-12 is amended to read as follows:
228-13 CHAPTER VII. EXECUTORS AND<,> ADMINISTRATORS<,
228-14 AND GUARDIANS>
228-15 SECTION 28. Section 186, Texas Probate Code, is amended to
228-16 read as follows:
228-17 Sec. 186. Letters or Certificate Made Evidence. Letters
228-18 testamentary or<,> of administration<, or of guardianship,> or a
228-19 certificate of the clerk of the court which granted the same, under
228-20 the seal of such court, that said letters have been issued, shall
228-21 be sufficient evidence of the appointment and qualification of the
228-22 personal representative of an estate <or ward> and of the date of
228-23 qualification.
228-24 SECTION 29. Section 189, Texas Probate Code, is amended to
228-25 read as follows:
228-26 Sec. 189. How Executors AND<,> Administrators<, and
228-27 Guardians> Shall Qualify. A personal representative shall be
229-1 deemed to have duly qualified when he shall have taken and filed
229-2 his oath and made the required bond, had the same approved by the
229-3 judge, and filed it with the clerk. In case of an executor <or
229-4 guardian> who is not required to make bond, he shall be deemed to
229-5 have duly qualified when he shall have taken and filed his oath
229-6 required by law.
229-7 SECTION 30. Section 192, Texas Probate Code, is amended to
229-8 read as follows:
229-9 Sec. 192. Time for Taking Oath and Giving Bond. The oath of
229-10 a personal representative may be taken and subscribed, or his bond
229-11 may be given and approved, at any time before the expiration of
229-12 twenty days after the date of the order granting letters
229-13 testamentary or of administration <or of guardianship>, as the case
229-14 may be, or before such letters shall have been revoked for a
229-15 failure to qualify within the time allowed. All such oaths may be
229-16 taken before any person authorized to administer oaths under the
229-17 laws of this State.
229-18 SECTION 31. Section 194, Texas Probate Code, is amended to
229-19 read as follows:
229-20 Sec. 194. Bonds of Personal Representatives of Estates.
229-21 Except when bond is not required under the provisions of this Code,
229-22 before the issuance of letters testamentary<,> or of administration
229-23 <or guardianship of estates>, the recipient of letters shall enter
229-24 into bond conditioned as required by law, payable to the county
229-25 judge or probate judge of the county in which the probate
229-26 proceedings are pending and to his successors in office. Such
229-27 bonds shall bear the written approval of either of such judges in
230-1 his official capacity, and shall be executed and approved in
230-2 accordance with the following rules:
230-3 1. Court to Fix Penalty. The penalty of the bond
230-4 shall be fixed by the judge, in an amount deemed sufficient to
230-5 protect the estate and its creditors, as hereinafter provided.
230-6 2. Bond to Protect Creditors Only, When. If the
230-7 person to whom letters testamentary or of administration is granted
230-8 is also entitled to all of the decedent's estate, after payment of
230-9 debts, the bond shall be in an amount sufficient to protect
230-10 creditors only, notwithstanding the rules applicable generally to
230-11 bonds of personal representatives of estates.
230-12 3. Before Fixing Penalty, Court to Hear Evidence. In
230-13 any case where a bond is, or shall be, required of a personal
230-14 representative of an estate, the court shall, before fixing the
230-15 penalty of the bond, hear evidence and determine:
230-16 (a) The amount of cash on hand and where
230-17 deposited, and the amount of cash estimated to be needed for
230-18 administrative purposes, including operation of a business,
230-19 factory, farm or ranch owned by the estate, and expenses of
230-20 administration for one (1) year; and
230-21 (b) The revenue anticipated to be received in
230-22 the succeeding twelve (12) months from dividends, interest,
230-23 rentals, or use of real or personal property belonging to the
230-24 estate and the aggregate amount of any installments or periodical
230-25 payments to be collected; and
230-26 (c) The estimated value of certificates of
230-27 stock, bonds, notes, or securities of the estate or ward, the name
231-1 of the depository, if any, in which said assets are held for
231-2 safekeeping, the face value of life insurance or other policies
231-3 payable to the person on whose estate administration is sought, or
231-4 to such estate, and such other personal property as is owned by the
231-5 estate, or by one under disability; and
231-6 (d) The estimated amount of debts due and owing
231-7 by the estate or ward.
231-8 4. Penalty of Bond. The penalty of the bond shall be
231-9 fixed by the judge in an amount equal to the estimated value of all
231-10 personal property belonging to the estate, or to the person under
231-11 disability, together with an additional amount to cover revenue
231-12 anticipated to be derived during the succeeding twelve (12) months
231-13 from interest, dividends, collectible claims, the aggregate amount
231-14 of any installments or periodical payments exclusive of income
231-15 derived or to be derived from federal social security payments, and
231-16 rentals for use of real and personal property; provided, that the
231-17 penalty of the original bond shall be reduced in proportion to the
231-18 amount of cash or value of securities or other assets authorized or
231-19 required to be deposited or placed in safekeeping by order of
231-20 court, or voluntarily made by the representative or by his sureties
231-21 as hereinafter provided in Subdivisions 6 and 7 hereof.
231-22 5. Agreement as to Deposit of Assets. It shall be
231-23 lawful, and the court may require such action when deemed in the
231-24 best interest of an estate <or ward>, for a personal representative
231-25 to agree with the surety or sureties, either corporate or personal,
231-26 for the deposit of any or all cash, and safekeeping of other assets
231-27 of the estate in a domestic state or national bank, trust company,
232-1 savings and loan association, or other domestic corporate
232-2 depository, duly incorporated and qualified to act as such under
232-3 the laws of this State or of the United States, if such deposit is
232-4 otherwise proper, in such manner as to prevent the withdrawal of
232-5 such moneys or other assets without the written consent of the
232-6 surety, or an order of the court made on such notice to the surety
232-7 as the court shall direct. No such agreement shall in any manner
232-8 release from or change the liability of the principal or sureties
232-9 as established by the terms of the bond.
232-10 6. Deposits Authorized or Required, When. Cash or
232-11 securities or other personal assets of an estate <or ward> or which
232-12 an estate <or ward> is entitled to receive may, and if deemed by
232-13 the court in the best interest of such estate <or ward> shall, be
232-14 deposited or placed in safekeeping as the case may be, in one or
232-15 more of the depositories hereinabove described upon such terms as
232-16 shall be prescribed by the court. The court in which the
232-17 proceedings are pending, upon its own motion, or upon written
232-18 application of the representative or of any other person interested
232-19 in the estate <or ward> may authorize or require additional assets
232-20 of the estate then on hand or as they accrue during the pendency of
232-21 the probate proceedings to be deposited or held in safekeeping as
232-22 provided above. The amount of the bond of the personal
232-23 representative shall be reduced in proportion to the cash so
232-24 deposited, or the value of the securities or other assets placed in
232-25 safekeeping. Such cash so deposited, or securities or other assets
232-26 held in safekeeping, or portions thereof, may be withdrawn from a
232-27 depository only upon order of the court, and the bond of the
233-1 personal representative shall be increased in proportion to the
233-2 amount of cash or the value of securities or other assets so
233-3 authorized to be withdrawn.
233-4 7. Representative May Deposit Cash or Securities of
233-5 His Own in Lieu of Bond. It shall be lawful for the personal
233-6 representative of an estate, in lieu of giving surety or sureties
233-7 on any bond which shall be required of him, or for the purpose of
233-8 reducing the amount of such bond, to deposit out of his own assets
233-9 cash or securities acceptable to the court, with a depository such
233-10 as named above or with any other corporate depository approved by
233-11 the court, if such deposit is otherwise proper, said deposit to be
233-12 equal in amount or value to the amount of the bond required, or the
233-13 bond reduced by the value of assets so deposited.
233-14 8. Rules Applicable to Making and Handling Deposits in
233-15 Lieu of Bond or to Reduce Penal Sum of Bond. (a) A receipt for a
233-16 deposit in lieu of surety or sureties shall be issued by the
233-17 depository, showing the amount of cash or, if securities, the
233-18 amount and description thereof, and agreeing not to disburse or
233-19 deliver the same except upon receipt of a certified copy of an
233-20 order of the court in which the proceedings are pending, and such
233-21 receipt shall be attached to the representative's bond and be
233-22 delivered to and filed by the county clerk after approval by the
233-23 judge.
233-24 (b) The amount of cash or securities on deposit
233-25 may be increased or decreased, by order of the court from time to
233-26 time, as the interest of the estate shall require.
233-27 (c) Deposits in lieu of sureties on bonds,
234-1 whether of cash or securities, may be withdrawn or released only on
234-2 order of a court having jurisdiction.
234-3 (d) Creditors shall have the same rights against
234-4 the representative and such deposits as are provided for recovery
234-5 against sureties on a bond.
234-6 (e) The court may on its own motion, or upon
234-7 written application by the representative or by any other person
234-8 interested in the estate, require that adequate bond be given by
234-9 the representative in lieu of such deposit, or authorize withdrawal
234-10 of the deposit and substitution of a bond with sureties therefor.
234-11 In either case, the representative shall file a sworn statement
234-12 showing the condition of the estate, and unless the same be filed
234-13 within twenty (20) days after being personally served with notice
234-14 of the filing of an application by another, or entry of the court's
234-15 motion, he shall be subject to removal as in other cases. The
234-16 deposit may not be released or withdrawn until the court has been
234-17 satisfied as to the condition of the estate, has determined the
234-18 amount of bond, and has received and approved the bond.
234-19 9. Withdrawal of Deposits when Estate Closed. Upon
234-20 the closing of an estate, any such deposit or portion thereof
234-21 remaining on hand, whether of the assets of the representative, or
234-22 of the assets of the estate, or of the surety, shall be released by
234-23 order of court and paid over to the person or persons entitled
234-24 thereto. No writ of attachment or garnishment shall lie against
234-25 the deposit, except as to claims of creditors of the estate being
234-26 administered, or persons interested therein, including distributees
234-27 and wards, and then only in the event distribution has been ordered
235-1 by the court, and to the extent only of such distribution as shall
235-2 have been ordered.
235-3 10. Who May Act as Sureties. The surety or sureties
235-4 on said bonds may be authorized corporate sureties, or personal
235-5 sureties.
235-6 11. Procedure When Bond Exceeds Fifty Thousand Dollars
235-7 ($50,000). When any such bond shall exceed Fifty Thousand Dollars
235-8 ($50,000) in penal sum, the court may require that such bond be
235-9 signed by two (2) or more authorized corporate sureties, or by one
235-10 such surety and two (2) or more good and sufficient personal
235-11 sureties. The estate shall pay the cost of a bond with corporate
235-12 sureties.
235-13 12. Qualifications of Personal Sureties. If the
235-14 sureties be natural persons, there shall not be less than two (2),
235-15 each of whom shall make affidavit in the manner prescribed in this
235-16 Code, and the judge shall be satisfied that he owns property within
235-17 this State, over and above that exempt by law, sufficient to
235-18 qualify as a surety as required by law. Except as provided by
235-19 law, only one surety is required if the surety is an authorized
235-20 corporate surety; provided, a personal surety, instead of making
235-21 affidavit, or creating a lien on specific real estate when such is
235-22 required, may, in the same manner as a personal representative,
235-23 deposit his own cash or securities, in lieu of pledging real
235-24 property as security, subject, so far as applicable, to the
235-25 provisions covering such deposits when made by personal
235-26 representatives.
235-27 13. Bonds of Temporary Appointees. In case of a
236-1 temporary administrator <or guardian>, the bond shall be in such
236-2 sum as the judge shall direct.
236-3 14. <Only One Bond for Guardian of Person and Estate.
236-4 Where one person is appointed guardian of both the person and
236-5 estate of a ward, only one bond shall be given by the guardian, in
236-6 the same amount that would be required from a guardian of the
236-7 estate only.>
236-8 <15.> Increased or Additional Bonds When Property
236-9 Sold, Rented, Leased for Mineral Development, or Money Borrowed or
236-10 Invested. The provisions in this Section with respect to deposit
236-11 of cash and safekeeping of securities shall cover, so far as they
236-12 may be applicable, the orders to be entered by the court when real
236-13 or personal property of an estate has been authorized to be sold or
236-14 rented, or money borrowed thereon, or when real property, or an
236-15 interest therein, has been authorized to be leased for mineral
236-16 development or subjected to unitization, the general bond having
236-17 been found insufficient<, or when money is borrowed or invested on
236-18 behalf of a ward>.
236-19 SECTION 32. Section 196, Texas Probate Code, is amended to
236-20 read as follows:
236-21 Sec. 196. Form of Bond. The following form, or the same in
236-22 substance, may be used for the bonds of personal representatives:
236-23 "The State of Texas
236-24 "County of ______
236-25 "Know all men by these presents that we, A. B., as principal,
236-26 and E. F., as sureties, are held and firmly bound unto the county
236-27 (or probate) judge of the County of ______, and his successors in
237-1 office, in the sum of ______ Dollars; conditioned that the above
237-2 bound A. B., who has been appointed executor of the last will and
237-3 testament of J. C., deceased (or has been appointed by the said
237-4 judge of ______ County, administrator with the will annexed of the
237-5 estate of J. C., deceased, or has been appointed by the said judge
237-6 of ______ County, administrator of the estate of J. C., deceased,
237-7 or has been appointed by the said judge of ______ County, temporary
237-8 administrator of the estate of J. C., deceased, as the case may
237-9 be<, or has been appointed by the judge of said county as guardian
237-10 or temporary guardian of the estate, or of the person or person and
237-11 estate of ______, stating in each case whether or not such person
237-12 is a minor or a person of unsound mind or an habitual drunkard or a
237-13 person for whom a guardian is necessary to receive funds or money
237-14 from a governmental source>), shall well and truly perform all of
237-15 the duties required of him by law under said appointment."
237-16 SECTION 33. Section 200, Texas Probate Code, is amended to
237-17 read as follows:
237-18 Sec. 200. Bond of Married Person Under Eighteen Years of
237-19 Age. When a person under eighteen years of age who is or has been
237-20 married shall accept and qualify as executor or<,> administrator,
237-21 <or guardian,> any bond required to be executed by him shall be as
237-22 valid and binding for all purposes as if he were of lawful age.
237-23 SECTION 34. Sections 214, 215, 216, and 217, Texas Probate
237-24 Code, are amended to read as follows:
237-25 Sec. 214. Executor <or Guardian> Without Bond Required to
237-26 Give Bond. Where no bond is required of an executor <or guardian>
237-27 appointed by will, any person having a debt, claim, or demand
238-1 against the estate, to the justice of which oath has been made by
238-2 himself, his agent, or attorney, or any other person interested in
238-3 such estate, whether in person or as the representative of another,
238-4 may file a complaint in writing in the court where such will is
238-5 probated, and the court shall thereupon cite such executor <or
238-6 guardian> to appear and show cause why he should not be required to
238-7 give bond.
238-8 Sec. 215. Order Requiring Bond. Upon hearing such
238-9 complaint, if it appears to the court that such executor <or
238-10 guardian> is wasting, mismanaging, or misapplying such estate, and
238-11 that thereby a creditor may probably lose his debt, or that thereby
238-12 some person's interest in the estate may be diminished or lost, the
238-13 court shall enter an order requiring such executor <or guardian> to
238-14 give bond within ten days from the date of such order.
238-15 Sec. 216. Bond in Such Case. Such bond shall be for an
238-16 amount sufficient to protect the estate and its creditors, to be
238-17 approved by, and payable to, the judge, conditioned that said
238-18 executor <or guardian> will well and truly administer such estate,
238-19 and that he will not waste, mismanage, or misapply the same.
238-20 Sec. 217. Failure to Give Bond. Should the executor <or
238-21 guardian> fail to give such bond within ten days after the order
238-22 requiring him to do so, then if the judge does not extend the time,
238-23 he shall, without citation, remove such executor <or guardian> and
238-24 appoint some competent person in his stead who shall administer the
238-25 estate according to the provisions of such will or the law, and
238-26 who, before he enters upon the administration of said estate, shall
238-27 take the oath required of an administrator with the will annexed
239-1 <or of a guardian as the case may be>, and shall give bond in the
239-2 same manner and in the same amount provided in this Code for the
239-3 issuance of original letters of administration <or guardianship>.
239-4 SECTION 35. Sections 220(c), (d), and (g), Texas Probate
239-5 Code, are amended to read as follows:
239-6 (c) When Named Executor <or Guardian> Becomes an Adult. If
239-7 one named in a will as executor <or guardian> is not an adult when
239-8 the will is probated and letters in any capacity have been granted
239-9 to another, such nominated executor <or guardian>, upon proof that
239-10 he has become an adult and is not otherwise disqualified, shall be
239-11 entitled to have such former letters revoked and appropriate
239-12 letters granted to him. And if the will names two or more persons
239-13 as executor, any one or more of whom are minors when such will is
239-14 probated, and letters have been issued to such only as are adults,
239-15 said minor or minors, upon becoming adults, if not otherwise
239-16 disqualified, shall be permitted to qualify and receive letters.
239-17 (d) Upon Return of Sick or Absent Executor <or
239-18 Guardian>. If one named in a will as executor <or guardian> was
239-19 sick or absent from the State when the testator died, or when the
239-20 will was proved, and therefore could not present the will for
239-21 probate within thirty days after the testator's death, or accept
239-22 and qualify as executor <or guardian> within twenty days after the
239-23 probate of the will, he may accept and qualify as executor <or
239-24 guardian> within sixty days after his return or recovery from
239-25 sickness, upon proof to the court that he was absent or ill; and,
239-26 if the letters have been issued to others, they shall be revoked.
239-27 (g) Payment or Tender of Money Due During Vacancy. Money or
240-1 other thing of value falling due to an estate <or ward> while the
240-2 office of the personal representative is vacant may be paid,
240-3 delivered, or tendered to the clerk of the court for credit of the
240-4 estate <or ward>, and the debtor, obligor, or payor shall thereby
240-5 be discharged of the obligation for all purposes to the extent and
240-6 purpose of such payment or tender. If the clerk accepts such
240-7 payment or tender, he shall issue a proper receipt therefor.
240-8 SECTION 36. Section 221(d), Texas Probate Code, is amended
240-9 to read as follows:
240-10 (d) Hearing. At the time set for hearing, unless it has
240-11 been continued by the court, if the court finds that citation has
240-12 been duly issued and served, he shall proceed to examine such
240-13 exhibit and account, and hear all evidence for and against the
240-14 same, and shall, if necessary, restate, and audit and settle the
240-15 same. If the court is satisfied that the matters entrusted to the
240-16 applicant have been handled and accounted for in accordance with
240-17 law, he shall enter an order of approval, and require that the
240-18 estate remaining in the possession of the applicant, if any, be
240-19 delivered to the person or persons entitled by law to receive it.
240-20 <A guardian of the person shall be required to comply with all
240-21 lawful orders of the court concerning his ward.>
240-22 SECTION 37. Sections 222(b) and (c), Texas Probate Code, are
240-23 amended to read as follows:
240-24 (b) With Notice. The court may remove a personal
240-25 representative on its own motion, or on the complaint of any
240-26 interested person, after the personal representative has been cited
240-27 by personal service to answer at a time and place fixed in the
241-1 notice, when:
241-2 (1) Sufficient grounds appear to support belief that
241-3 he has misapplied, embezzled, or removed from the state, or that he
241-4 is about to misapply, embezzle, or remove from the state, all or
241-5 any part of the property committed to his care;
241-6 (2) He fails to return any account which is required
241-7 by law to be made;
241-8 (3) He fails to obey any proper order of the court
241-9 having jurisdiction with respect to the performance of his duties;
241-10 (4) He is proved to have been guilty of gross
241-11 misconduct, or mismanagement in the performance of his duties;
241-12 (5) He becomes an incompetent, or is sentenced to the
241-13 penitentiary, or from any other cause becomes incapable of properly
241-14 performing the duties of his trust;
241-15 (6) As executor or administrator, he fails to make a
241-16 final settlement within three years after the grant of letters,
241-17 unless the time be extended by the court upon a showing of
241-18 sufficient cause supported by oath; or
241-19 (7) As executor or administrator, he fails to timely
241-20 file the notice required by Section 128A of this code<; or>
241-21 <(8) As guardian of the person, he cruelly treats the
241-22 ward, or neglects to educate or maintain the ward as liberally as
241-23 the means of such ward and the condition of his estate permit>.
241-24 (c) Order of Removal. The order of removal shall state the
241-25 cause thereof. It shall require that any letters issued to the one
241-26 removed shall, if he has been personally served with citation, be
241-27 surrendered, and that all such letters be cancelled of record,
242-1 whether delivered or not. It shall further require, as to all the
242-2 estate remaining in the hands of a removed person, delivery thereof
242-3 to the person or persons entitled thereto, or to one who has been
242-4 appointed and has qualified as successor representative<, and as to
242-5 the person of a ward, that control be relinquished as required in
242-6 the order>.
242-7 SECTION 38. Section 226, Texas Probate Code, is amended to
242-8 read as follows:
242-9 Sec. 226. Subsequent Executors <and Guardians> Also Succeed
242-10 to Prior Rights and Duties. Whenever an executor <or guardian>
242-11 shall accept and qualify after letters of administration shall have
242-12 been granted upon the estate, such executor <or guardian> shall, in
242-13 like manner, succeed to the previous administrator, and he shall
242-14 administer the estate in like manner as if his administration were
242-15 a continuation of the former one, subject, however, to any legal
242-16 directions of the testator contained in the will in relation to the
242-17 estate.
242-18 SECTION 39. Section 230, Texas Probate Code, is amended to
242-19 read as follows:
242-20 Sec. 230. Care of Property of Estates. <(a) Estates of
242-21 Decedents.> The executor or administrator shall take care of the
242-22 property of the estate of his testator or intestate as a prudent
242-23 man would take of his own property, and if there be any buildings
242-24 belonging to the estate, he shall keep the same in good repair,
242-25 extraordinary casualties excepted, unless directed not to do so by
242-26 an order of the court.
242-27 <(b) Estates of Wards.>
243-1 <(1) General Powers and Duties. The guardian of the
243-2 estate of a ward is entitled to the possession and management of
243-3 all properties belonging to the ward, to collect all debts,
243-4 rentals, or claims due such ward, to enforce all obligations in his
243-5 favor, and to bring and defend suits by or against him; but, in the
243-6 management of the estate, the guardian shall be governed by the
243-7 provisions of this Code. It is the duty of the guardian of the
243-8 estate to take care of and manage such estate as a prudent man
243-9 would manage his own property. He shall account for all rents,
243-10 profits, and revenues that the estate would have produced by such
243-11 prudent management.>
243-12 <(2) Power to Make Tax-Motivated Gifts. (A) On
243-13 application of the guardian or any interested party, and after
243-14 notice to all interested persons and to such other persons as the
243-15 court may direct, and on a showing that the ward will probably
243-16 remain incompetent during his lifetime, the court may, after
243-17 hearing and by order, authorize the guardian to apply such
243-18 principal or income of the ward's estate as is not required for the
243-19 support of the ward during his lifetime or of his family towards
243-20 the establishment of an estate plan for the purpose of minimizing
243-21 income, estate, inheritance, or other taxes payable out of the
243-22 ward's estate. The court may authorize the guardian to make gifts
243-23 of the ward's personal property or real estate, outright or in
243-24 trust, on behalf of the ward, to or for the benefit of
243-25 (i) organizations to which charitable contributions may be made
243-26 under the Internal Revenue Code and in which it is shown the ward
243-27 would reasonably have an interest, (ii) the ward's heirs at law
244-1 who are identifiable at the time of the order, (iii) devisees
244-2 under the ward's last validly executed will, if there be such a
244-3 will, (iv) and a person serving as guardian of the ward provided
244-4 he is eligible under either category (ii) or (iii) above.>
244-5 <(B) The person making application to the court
244-6 shall outline the proposed estate plan, setting forth all the
244-7 benefits to be derived therefrom. The application shall also
244-8 indicate that the planned disposition is consistent with the
244-9 intentions of the ward insofar as they can be ascertained. If the
244-10 ward's intentions cannot be ascertained, the ward will be presumed
244-11 to favor reduction in the incidence of the various forms of
244-12 taxation and the partial distribution of his estate as herein
244-13 provided.>
244-14 <(C) The court may appoint a guardian ad litem
244-15 for the ward or any interested party at any stage of the
244-16 proceedings, if deemed advisable for the protection of the ward or
244-17 the interested party.>
244-18 <(D) Subsequent modifications of an approved
244-19 plan may be made by similar application to the court.>
244-20 SECTION 40. Section 233A, Texas Probate Code, is amended to
244-21 read as follows:
244-22 Sec. 233A. Suits by Executors OR<,> Administrators<, or
244-23 Guardians>. Suits for the recovery of personal property, debts, or
244-24 damages and suits for title or possession of lands or for any right
244-25 attached to or growing out of the same or for injury or damage done
244-26 thereto may be instituted by executors or<,> administrators<, or
244-27 guardians> appointed in this state; and judgment in such cases
245-1 shall be conclusive, but may be set aside by any person interested
245-2 for fraud or collusion on the part of such executor or
245-3 administrator.
245-4 SECTION 41. Section 238, Texas Probate Code, is amended to
245-5 read as follows:
245-6 Sec. 238. Operation of Farm, Ranch, Factory, or Other
245-7 Business. If the estate owns a farm, ranch, factory, or other
245-8 business, the disposition of which has not been specifically
245-9 directed by will, and if the same be not required to be sold at
245-10 once for the payment of debts or other lawful purposes, the
245-11 representative, upon order of the court, shall carry on the
245-12 operation of such farm, ranch, factory, or other business, or cause
245-13 the same to be done, or rent the same, as shall appear to be for
245-14 the best interest of the estate. In deciding, the court shall
245-15 consider the condition of the estate, and the necessity that may
245-16 exist for future sale of such property or business for the payment
245-17 of debts, claims, or other lawful expenditures, and shall not
245-18 extend the time of renting any of the property beyond what appears
245-19 consistent with the speedy settlement of the estate of a deceased
245-20 person<, or the maintenance and education of a ward> or the
245-21 settlement of his estate.
245-22 SECTION 42. Section 241, Texas Probate Code, is amended to
245-23 read as follows:
245-24 Sec. 241. Compensation of Personal Representatives.
245-25 (a) <Compensation of Executors and Administrators.> Executors,
245-26 administrators, and temporary administrators shall be entitled to
245-27 receive a commission of five per cent (5%) on all sums they may
246-1 actually receive in cash, and the same per cent on all sums they
246-2 may actually pay out in cash, in the administration of the estate
246-3 on a finding by the court that the executor or administrator has
246-4 taken care of and managed the estate in compliance with the
246-5 standards of this code; provided, no commission shall be allowed
246-6 for receiving funds belonging to the testator or intestate which
246-7 were on hand or were held for the testator or intestate at the time
246-8 of his death in a financial institution or a brokerage firm,
246-9 including cash or a cash equivalent held in a checking account,
246-10 savings account, certificate of deposit, or money market account;
246-11 nor for collecting the proceeds of any life insurance policy; nor
246-12 for paying out cash to the heirs or legatees as such; provided,
246-13 further, however, that in no event shall the executor or
246-14 administrator be entitled in the aggregate to more than five per
246-15 cent (5%) of the gross fair market value of the estate subject to
246-16 administration. If the executor or administrator manages a farm,
246-17 ranch, factory, or other business of the estate, or if the
246-18 compensation as calculated above is unreasonably low, the court may
246-19 allow him reasonable compensation for his services, including
246-20 unusual effort to collect funds or life insurance. For this
246-21 purpose, the county court shall have jurisdiction to receive,
246-22 consider, and act on applications from independent executors. The
246-23 court may, on application of an interested person or on its own
246-24 motion, deny a commission allowed by this subsection in whole or in
246-25 part if:
246-26 (1) the court finds that the executor or administrator
246-27 has not taken care of and managed estate property prudently; or
247-1 (2) the executor or administrator has been removed
247-2 under Section 149C or 222 of this code.
247-3 (b) <Compensation of Guardians. A guardian of the person
247-4 alone is entitled to no compensation. The guardian or the
247-5 temporary guardian of the estate, or of the person and estate,
247-6 shall not be entitled to, or receive, any fee or commission on the
247-7 estate of the ward when it is first delivered to him; but shall be
247-8 entitled to a fee of five per cent (5%) on the gross income of the
247-9 ward's estate and five per cent (5%) on all money paid out on a
247-10 finding by the court that the guardian has taken care of and
247-11 managed the estate in compliance with the standards of this code.
247-12 The term "money paid out" shall not be construed to include any
247-13 money loaned or invested or paid over on the settlement of the
247-14 guardianship. If the guardian manages a farm, ranch, factory, or
247-15 other business of his ward, or if the compensation as calculated
247-16 above is unreasonably low, the court may allow him reasonable
247-17 compensation for his services. The court may, on application of an
247-18 interested person or on its own motion, deny a fee allowed by this
247-19 subsection in whole or in part if:>
247-20 <(1) the court finds that the guardian has not taken
247-21 care of and managed estate property prudently; or>
247-22 <(2) the guardian has been removed under Section 222
247-23 of this code.>
247-24 <(c)> Definition. In this section, "financial institution"
247-25 means an organization authorized to do business under state or
247-26 federal laws relating to financial institutions, including banks
247-27 and trust companies, savings banks, building and loan associations,
248-1 savings and loan companies or associations, and credit unions.
248-2 SECTION 43. The heading of Chapter VIII, Texas Probate Code,
248-3 is amended to read as follows:
248-4 CHAPTER VIII. PROCEEDINGS DURING ADMINISTRATION
248-5 <AND GUARDIANSHIP>
248-6 SECTION 44. Section 248, Texas Probate Code, is amended to
248-7 read as follows:
248-8 Sec. 248. Appointment of Appraisers. At any time after the
248-9 grant of letters testamentary or of administration <or of
248-10 guardianship>, upon the application of any interested person or if
248-11 the court shall deem necessary, the court shall appoint not less
248-12 than one nor more than three disinterested persons, citizens of the
248-13 county in which letters were granted, to appraise the property of
248-14 the estate. In such event and when part of the estate is situated
248-15 in a county other than the county in which letters were granted, if
248-16 the court shall deem necessary it may appoint not less than one nor
248-17 more than three disinterested persons, citizens of the county where
248-18 such part of the estate is situated, to appraise the property of
248-19 the estate situated therein.
248-20 SECTION 45. Section 250, Texas Probate Code, is amended to
248-21 read as follows:
248-22 Sec. 250. Inventory and Appraisement. Within ninety days
248-23 after his qualification, unless a longer time shall be granted by
248-24 the court, the representative shall file with the clerk of court a
248-25 verified, full and detailed inventory, in one written instrument,
248-26 of all the property of such estate which has come to his possession
248-27 or knowledge, which inventory shall include:
249-1 (a) all real property of the estate situated in the
249-2 State of Texas;
249-3 (b) all personal property of the estate wherever
249-4 situated. The representative shall set out in the inventory his
249-5 appraisement of the fair market value of each item thereof as of
249-6 the date of death in the case of grant of letters testamentary or
249-7 of administration <or as of the date of grant of letters of
249-8 guardianship>, as the case may be; provided that if the court shall
249-9 appoint an appraiser or appraisers of the estate, the
249-10 representative shall determine the fair market value of each item
249-11 of the inventory with the assistance of such appraiser or
249-12 appraisers and shall set out in the inventory such appraisement.
249-13 The inventory shall specify what portion of the property, if any,
249-14 is separate property and what portion, if any, is community
249-15 property. If any property is owned in common with others, the
249-16 interest owned by the estate shall be shown, together with the
249-17 names and relationship, if known, of co-owners. Such inventory,
249-18 when approved by the court and duly filed with the clerk of court,
249-19 shall constitute for all purposes the inventory and appraisement of
249-20 the estate referred to in this Code. The court for good cause
249-21 shown may require the filing of the inventory and appraisement at a
249-22 time prior to ninety days after the qualification of the
249-23 representative.
249-24 SECTION 46. Sections 295(a) and (b), Texas Probate Code, are
249-25 amended to read as follows:
249-26 (a) When notice required for lien claimants. Within four
249-27 months after receiving letters, the representative of an estate
250-1 shall give notice of the issuance of such letters to each and every
250-2 person having a claim for money against the estate of a decedent<,
250-3 or ward, as the case may be>, provided:
250-4 (1) That such claim is secured by a deed of trust,
250-5 mortgage, vendor's, mechanic's or other contractor's lien upon real
250-6 estate belonging to such estate; and
250-7 (2) That the instrument creating, extending, or
250-8 transferring such lien was duly recorded prior to the death of a
250-9 testator or intestate in the county in which the real estate
250-10 covered by such lien is situated, or prior to the time at which
250-11 title vested in an heir or devisee.
250-12 (b) When notice required for general claimants. Within four
250-13 months after receiving letters, the representative of an estate
250-14 shall give notice of the issuance of the letters to each person
250-15 having an outstanding claim for money against the estate of a
250-16 decedent<, or ward, as applicable,> if the representative has
250-17 actual knowledge of the claim.
250-18 SECTION 47. Section 298, Texas Probate Code, is amended to
250-19 read as follows:
250-20 Sec. 298. Claims Against Estates of Decedents <and Wards>.
250-21 (a) Claims Against Decedent's Estate Postponed if not Presented in
250-22 Six Months. All claims for money against a testator or intestate
250-23 shall be presented to the executor or administrator within six
250-24 months after the original grant of letters testamentary or of
250-25 administration; otherwise the payment thereof shall be postponed
250-26 until the claims which have been presented within six months and
250-27 allowed by the executor or administrator and approved by the court
251-1 have been first entirely paid; provided, however, that the failure
251-2 of the holder of a secured claim to present his claim within said
251-3 six month period shall not cause his claim to be postponed, but it
251-4 shall be treated as a claim to be paid in accordance with
251-5 subsequent provisions of this Code.
251-6 (b) <Time for Presentation of Claims to Guardians. Claims
251-7 may be presented to the guardian at any time when the estate is not
251-8 closed and when suit on such claims has not been barred by the
251-9 general statutes of limitation.>
251-10 <(c)> Claims Barred by Limitation Not to Be Allowed or
251-11 Approved. No claims against a decedent <or ward>, or against the
251-12 estate of the decedent <either>, on which a suit is barred by a
251-13 general statute of limitation applicable thereto shall be allowed
251-14 by a personal representative. If allowed by the representative and
251-15 the court is satisfied that limitation has run, the claim shall be
251-16 disapproved.
251-17 SECTION 48. Section 301, Texas Probate Code, is amended to
251-18 read as follows:
251-19 Sec. 301. Claims Must Be Authenticated. No <Except as
251-20 hereinafter provided with respect to the payment of unauthenticated
251-21 claims by guardians, no> personal representative of a decedent's
251-22 estate <or of the estate of a ward> shall allow, and the court
251-23 shall not approve, a claim for money against such estate, unless
251-24 such claim be supported by an affidavit that the claim is just and
251-25 that all legal offsets, payments, and credits known to the affiant
251-26 have been allowed. If the claim is not founded on a written
251-27 instrument or account, the affidavit shall also state the facts
252-1 upon which the claim is founded. A photostatic copy of any exhibit
252-2 or voucher necessary to prove a claim may be offered with and
252-3 attached to the claim in lieu of the original.
252-4 SECTION 49. Section 304, Texas Probate Code, is amended to
252-5 read as follows:
252-6 Sec. 304. Authentication of Claim by Others Than Individual
252-7 Owners. The cashier, treasurer, or managing official of a
252-8 corporation shall make the affidavit required to authenticate a
252-9 claim of such corporation. When an affidavit is made by an officer
252-10 of a corporation, or by an executor, administrator, <guardian,>
252-11 trustee, assignee, agent, or attorney, it shall be sufficient to
252-12 state in such affidavit that the person making it has made diligent
252-13 inquiry and examination, and that he believes that the claim is
252-14 just and that all legal offsets, payments, and credits made known
252-15 to the affiant have been allowed.
252-16 SECTION 50. Section 306(d), Texas Probate Code, is amended
252-17 to read as follows:
252-18 (d) Payment of Maturities on Secured Claims. If property
252-19 securing a claim allowed, approved, and fixed under Paragraph (2)
252-20 of Subsection (a) hereof is not sold or distributed within twelve
252-21 months from the date letters testamentary or of administration <or
252-22 guardianship> are granted, the representative of the estate shall
252-23 promptly pay all maturities which have accrued on the debt
252-24 according to the terms thereof, and shall perform all the terms of
252-25 any contract securing same. If the representative defaults in such
252-26 payment or performance, on motion of the claimholder, the court
252-27 shall require the sale of said property subject to the unmatured
253-1 part of such debt and apply the proceeds of the sale to the
253-2 liquidation of the maturities, or, at the option of the
253-3 claimholder, a motion may be made in a like manner to require the
253-4 sale of said property free of such lien and to apply the proceeds
253-5 to the payment of the whole debt.
253-6 SECTION 51. Section 311, Texas Probate Code, is amended to
253-7 read as follows:
253-8 Sec. 311. When Claims Entered in Docket. <(a) Claims
253-9 Against Estates of Decedents.> If a claim against the estate of a
253-10 decedent has been presented within six months after the issuance of
253-11 original testamentary letters or of administration, and all or part
253-12 of such claim is allowed by the executor or administrator, the
253-13 claim shall forthwith be filed with the county clerk of the proper
253-14 county, who shall enter the same in its proper place upon the claim
253-15 docket. If such claim is not so presented within such time, the
253-16 payment thereof, should it be approved in whole or in part, shall
253-17 be postponed until all other claims which have been presented,
253-18 allowed, and approved within the time prescribed have been first
253-19 entirely paid.
253-20 <(b) Claims Against Estates of Wards. After a claim against
253-21 a ward's estate has been presented to and allowed by the guardian,
253-22 either in whole or in part, the claim shall forthwith be filed with
253-23 the county clerk of the proper county, who shall enter it on the
253-24 claim docket.>
253-25 SECTION 52. Sections 312(a) and (e), Texas Probate Code, are
253-26 amended to read as follows:
253-27 (a) Contest of Claims. Any person interested in an estate
254-1 <or ward> may, at any time before the court has acted upon a claim,
254-2 appear and object in writing to the approval of the same, or any
254-3 part thereof, and in such case the parties shall be entitled to
254-4 process for witnesses, and the court shall hear proof and render
254-5 judgment as in ordinary suits.
254-6 (e) Appeal. When a claimant or any person interested in an
254-7 estate <or ward> shall be dissatisfied with the action of the court
254-8 upon a claim, he may appeal therefrom to the courts of <(civil)>
254-9 appeals, as from other judgments of the county court in probate
254-10 matters.
254-11 SECTION 53. Section 314, Texas Probate Code, is amended to
254-12 read as follows:
254-13 Sec. 314. Presentment of Claims a Prerequisite for Judgment.
254-14 No judgment shall be rendered in favor of a claimant upon any claim
254-15 for money which has not been legally presented to the
254-16 representative of an estate <or ward>, and rejected by him or by
254-17 the court, in whole or in part.
254-18 SECTION 54. Section 317, Texas Probate Code, is amended to
254-19 read as follows:
254-20 Sec. 317. Claims by Personal Representatives. (a) By
254-21 Executors or Administrators. The foregoing provisions of this Code
254-22 relative to the presentation of claims against an estate shall not
254-23 be construed to apply to any claim of the executor or administrator
254-24 against his testator or intestate; but an executor or administrator
254-25 holding such claim shall file the same in the court granting his
254-26 letters, verified by affidavit as required in other cases, within
254-27 six months after he has qualified, or such claim shall be barred.
255-1 (b) <By Guardians. A claim which the guardian held against
255-2 the ward or his estate at the time of his appointment, or which has
255-3 since accrued, shall be verified by affidavit as required in other
255-4 cases, and presented to the clerk of the court in which the
255-5 guardianship is pending, who shall enter it upon the claim docket,
255-6 after which it shall take the same course as other claims.>
255-7 <(c)> Action on Such Claims. When a claim by an executor
255-8 or<,> administrator<, or guardian> has been filed with the court
255-9 within the required time, such claim shall be entered upon the
255-10 claim docket and acted upon by the court in the same manner as in
255-11 other cases, and, when the claim has been acted upon by the court,
255-12 an appeal from the judgment of the court may be taken as in other
255-13 cases.
255-14 (c) <(d)> Provisions Not Applicable to Certain Claims. The
255-15 foregoing provisions relative to the presentment of claims shall
255-16 not be so construed as to apply to the claim of any heir, devisee,
255-17 or legatee who claims in such capacity, or to any claim that
255-18 accrues against the estate after the granting of letters for which
255-19 the representative of the estate has contracted.
255-20 SECTION 55. Section 319, Texas Probate Code, is amended to
255-21 read as follows:
255-22 Sec. 319. Claims Not to Be Paid Unless Approved. No <Except
255-23 as provided for payment at his own risk by a guardian of an
255-24 unauthenticated claim, no> claim for money against the estate of a
255-25 decedent <or ward>, or any part thereof, shall be paid until it has
255-26 been approved by the court or established by the judgment of a
255-27 court of competent jurisdiction.
256-1 SECTION 56. Section 320, Texas Probate Code, is amended to
256-2 read as follows:
256-3 Sec. 320. Order of Payment of Claims. (a) <Estates of
256-4 Decedents.> Executors and administrators, when they have funds in
256-5 their hands belonging to the estate, shall pay in the following
256-6 order:
256-7 (1) Funeral expenses and expenses of last sickness, in
256-8 an amount not to exceed Five Thousand Dollars, if the claims
256-9 therefor have been presented within sixty days from the original
256-10 grant of letters testamentary or administration, but if not
256-11 presented within such time, their payment shall be postponed until
256-12 the allowances made to the widow and children, or to either, are
256-13 paid.
256-14 (2) Allowances made to the widow and children, or to
256-15 either.
256-16 (3) Expenses of administration and the expenses
256-17 incurred in the preservation, safekeeping, and management of the
256-18 estate.
256-19 (4) Other claims against the estate in the order of
256-20 their classification.
256-21 (b) <Estates of Wards. The guardian shall pay all claims
256-22 against the estate of his ward that have been allowed and approved,
256-23 or established by suit, as soon as practicable, in the following
256-24 order:>
256-25 <(1) expenses for the care, maintenance and education
256-26 of the ward or his dependents;>
256-27 <(2) funeral expenses and expenses of last sickness,
257-1 if the guardianship is kept open after the death of the ward as
257-2 provided by Section 404A of this Code, except that any claim
257-3 against the estate of a ward that has been allowed and approved or
257-4 established by suit prior to the death of the ward shall be paid
257-5 prior to the funeral expenses and expenses of last sickness;>
257-6 <(3) expenses of administration; and>
257-7 <(4) other claims against the estate.>
257-8 <(c)> A claimant whose claim has not been paid may petition
257-9 the court for determination of his claim at any time before it is
257-10 barred by the applicable statute of limitations and upon due proof
257-11 procure an order for its allowance and payment from the estate.
257-12 SECTION 57. Section 321, Texas Probate Code, is amended to
257-13 read as follows:
257-14 Sec. 321. Deficiency of Assets. When there is a deficiency
257-15 of assets to pay all claims of the same class, the claims in such
257-16 class shall be paid pro rata, as directed by the court, and in the
257-17 order directed. No executor or<,> administrator<, or guardian>
257-18 shall be allowed to pay any claims, whether the estate is solvent
257-19 or insolvent, except with the pro rata amount of the funds of the
257-20 estate that have come to hand.
257-21 SECTION 58. Section 324, Texas Probate Code, is amended to
257-22 read as follows:
257-23 Sec. 324. Representatives Not to Purchase Claims. It shall
257-24 be unlawful, and cause for removal, for an executor or<,>
257-25 administrator, <or guardian,> whether acting under appointment by
257-26 will or under orders of the court, to purchase for his own use or
257-27 for any purposes whatsoever, any claim against the estate he
258-1 represents. Upon written complaint by any person interested in the
258-2 estate, and satisfactory proof of violation of this provision,
258-3 after citation and hearing, the court shall enter its order
258-4 cancelling the claim, and no part thereof shall be paid out of the
258-5 estate; and the judge may, in his discretion, remove such
258-6 representative.
258-7 SECTION 59. Sections 329(a) and (c), Texas Probate Code, are
258-8 amended to read as follows:
258-9 (a) Circumstances Under Which Money May Be Borrowed. Any
258-10 real or personal property of an estate may be mortgaged or pledged
258-11 by deed of trust or otherwise as security for an indebtedness,
258-12 under order of the court, when necessary for any of the following
258-13 purposes:
258-14 (1) For the payment of any ad valorem, income, gift,
258-15 estate, inheritance, or transfer taxes upon the transfer of an
258-16 estate or due from a decedent <or ward> or his estate, regardless
258-17 of whether such taxes are assessed by a state, or any of its
258-18 political subdivisions, or by the federal government or by a
258-19 foreign country; or
258-20 (2) For payment of expenses of administration,
258-21 including sums necessary for operation of a business, farm, or
258-22 ranch owned by the estate; or
258-23 (3) For payment of claims allowed and approved, or
258-24 established by suit, against the estate; or
258-25 (4) To renew and extend a valid, existing lien<; or>
258-26 <(5) In the case of guardians of estates, if the real
258-27 estate of the ward is not revenue producing but could be made
259-1 revenue producing by certain improvements and repairs, or if the
259-2 revenue therefrom could be increased by making such improvements or
259-3 repairs thereon, to make such improvements or repairs; or>
259-4 <(6) In the case of guardians of estates, the probate
259-5 court in its discretion may authorize the borrowing of money if the
259-6 court finds it to be in the best interest of the ward or may
259-7 authorize the borrowing of money for the purchase of a residence
259-8 for the ward and any dependents of the ward>.
259-9 (c) Order Authorizing Such Borrowing, or Extension of
259-10 Lien. The court, if satisfied by the evidence adduced at the
259-11 hearing upon said application that it is to the interest of the
259-12 estate to borrow money, or to extend and renew an existing lien,
259-13 shall issue its order to that effect, setting out the terms and
259-14 conditions of the authority granted; provided, however<: (1) that
259-15 as to the estate of a decedent>, the loan or renewal shall not be
259-16 for a term longer than three years from the granting of original
259-17 letters to the representative of such estate, but the court may
259-18 authorize an extension of such lien for not more than one
259-19 additional year without further citation or notice<; and (2) that
259-20 as to the estate of a ward, the term of the loan or renewal shall
259-21 be for such length of time as the court shall determine to be for
259-22 the best interest of such estate. If a new lien is created upon
259-23 property of an estate, the court may require that the
259-24 representative's general bond be increased, or an additional bond
259-25 given, for the protection of the estate and its creditors, as for
259-26 the sale of real property belonging to the estate>.
259-27 SECTION 60. Section 339, Texas Probate Code, is amended to
260-1 read as follows:
260-2 Sec. 339. Sales of Personal Property to Be Reported; Decree
260-3 Vests Title. All sales of personal property shall be reported to
260-4 the court, and the laws regulating sales of real estate as to
260-5 confirmation or disapproval of sales shall apply, but no conveyance
260-6 shall be necessary. The decree confirming the sale of personal
260-7 property shall vest the right and title of the estate of the
260-8 intestate <or ward> in the purchaser who has complied with the
260-9 terms of the sale, and shall be prima facie evidence that all
260-10 requirements of the law in making the sale have been met. The
260-11 representative of an estate may, upon request, issue a bill of sale
260-12 without warranty to the purchaser as evidence of title, the expense
260-13 thereof to be borne by the purchaser.
260-14 SECTION 61. Section 341, Texas Probate Code, is amended to
260-15 read as follows:
260-16 Sec. 341. Application for Sale of Real Estate.
260-17 <(a)> Application may be made to the court for an order to sell
260-18 property of the estate when it appears necessary or advisable in
260-19 order to:
260-20 (1) Pay expenses of administration, funeral expenses
260-21 and expenses of last sickness of decedents, and allowances and
260-22 claims against the estates of decedents <and wards>.
260-23 (2) <Make up the deficiency when the income of a
260-24 ward's estate, and the personal property thereof, and the proceeds
260-25 of previous sales, are insufficient for the education and
260-26 maintenance of the ward, or to pay debts against the estate.>
260-27 <(3) Dispose of property of the estate of a ward which
261-1 consists in whole or in part of an undivided interest in real
261-2 estate, when it is deemed to the best interest of the estate to
261-3 sell such interest.>
261-4 <(4) Dispose of real estate of a ward, any part of
261-5 which is nonproductive or does not produce sufficient revenue to
261-6 make a fair return upon the value of such real estate, when the
261-7 improvement of same with a view to making it productive is not
261-8 deemed advantageous or advisable, and it appears that the sale of
261-9 such real estate and the investment of the money derived therefrom
261-10 would be to the best interest of the estate.>
261-11 <(5) Conserve the estate of a ward by selling mineral
261-12 interest and/or royalties on minerals in place owned by a ward.>
261-13 <(6)> Dispose of any interest in real property of the
261-14 estate of a decedent, when it is deemed to the best interest of the
261-15 estate to sell such interest.
261-16 SECTION 62. Section 351, Texas Probate Code, is amended to
261-17 read as follows:
261-18 Sec. 351. Sales of Easements and Right of Ways. It shall be
261-19 lawful to sell and convey easements and rights of ways on, under,
261-20 and over the lands of an estate being administered under orders of
261-21 a court, regardless of whether the proceeds of such a sale are
261-22 required for payment of charges or claims against the estate, or
261-23 for other lawful purposes. The procedure for such sales shall be
261-24 the same as now or hereafter provided by law for sales of real
261-25 property of estates of decedents <or wards> at private sale.
261-26 SECTION 63. Sections 352(c) and (d), Texas Probate Code, are
261-27 amended to read as follows:
262-1 (c) A personal representative of a decedent <or of a ward
262-2 who has been adjudged incompetent> may purchase property from the
262-3 estate of the decedent <or ward> in compliance with the terms of a
262-4 written executory contract signed by the decedent <or by the ward
262-5 before the ward became incompetent>, including a contract for deed,
262-6 earnest money contract, buy/sell agreement, or stock purchase or
262-7 redemption agreement.
262-8 (d) After issuing the notice required by this subsection, a
262-9 personal representative of an estate, including an independent
262-10 administrator, may purchase property from the estate on the court's
262-11 determination that the sale is in the best interest of the estate.
262-12 The personal representative shall give notice by certified mail,
262-13 return receipt requested, unless the court requires another form of
262-14 notice, to each distributee of a deceased person's estate and to
262-15 each creditor whose claim remains unsettled after presenting a
262-16 claim within six months of the original grant of letters. <In the
262-17 case of an application filed by the guardian of the estate of a
262-18 ward, the court shall appoint an attorney ad litem to represent the
262-19 ward with respect to the sale.> The court may require additional
262-20 notice or it may allow for the waiver of the notice required for a
262-21 sale made under this subsection.
262-22 SECTION 64. Section 367(b), Texas Probate Code, is amended
262-23 to read as follows:
262-24 (b) Mineral Leases, With or Without Pooling or
262-25 Unitization. Personal representatives of the estates of
262-26 decedents<, minors, and incompetents>, appointed and qualified
262-27 under the laws of this State, and acting solely under orders of
263-1 court, may be authorized by the court in which the probate
263-2 proceedings on such estates are pending to make, execute, and
263-3 deliver leases, with or without unitization clauses or pooling
263-4 provisions, providing for the exploration for, and development and
263-5 production of, oil, other liquid hydrocarbons, gas (including all
263-6 liquid hydrocarbons in the gaseous phase), metals, and other solid
263-7 minerals, and other minerals, or any of such minerals in place,
263-8 belonging to such estates.
263-9 SECTION 65. Section 372, Texas Probate Code, is amended to
263-10 read as follows:
263-11 Sec. 372. Validation of Certain Leases and Pooling or
263-12 Unitization Agreements Based on Previous Statutes. All presently
263-13 existing leases on the oil, gas, or other minerals, or one or more
263-14 of them, belonging to the estates of decedents<, minors, persons of
263-15 unsound mind, or habitual drunkards>, and all agreements with
263-16 respect to pooling, or unitization thereof, or one or more of them,
263-17 or any interest therein, with like properties of others<, including
263-18 agreements contemplated or authorized to be made under the terms of
263-19 Section 3, Article 6008-b, Vernon's Texas Revised Civil Statutes of
263-20 1925, as amended,> having been authorized by the court having
263-21 venue, and executed and delivered by the executors, administrators,
263-22 <guardians,> or other fiduciaries of their estates in substantial
263-23 conformity to the rules set forth in statutes heretofore existing,
263-24 providing for only seven days notice in some instances, and also
263-25 for a brief order designating a time and place for hearing, are
263-26 hereby validated in so far as said period of notice is concerned,
263-27 and in so far as the absence of any order setting a time and place
264-1 for hearing is concerned; provided, this shall not apply to any
264-2 lease or pooling or unitization agreement involved in any suit
264-3 pending on the effective date of this Code wherein either the
264-4 length of time of said notice or the absence of such order is in
264-5 issue.
264-6 SECTION 66. Section 399, Texas Probate Code, is amended to
264-7 read as follows:
264-8 Sec. 399. Annual Accounts Required. (a) Estates of
264-9 Decedents <and Wards> Being Administered Under Order of Court. The
264-10 personal representative of the estate of a decedent <or ward> being
264-11 administered under order of court shall, upon the expiration of
264-12 twelve (12) months from the date of qualification and receipt of
264-13 letters, return to the court an exhibit in writing under oath
264-14 setting forth a list of all claims against the estate that were
264-15 presented to him within the period covered by the account,
264-16 specifying which have been allowed by him, which have been paid,
264-17 which have been rejected and the date when rejected, which have
264-18 been sued upon, and the condition of the suit, and show:
264-19 (1) All property that has come to his knowledge or
264-20 into his possession not previously listed or inventoried as
264-21 property of the estate <or ward, as the case may be>.
264-22 (2) Any changes in the property of the estate <or
264-23 ward> which have not been previously reported.
264-24 (3) A complete account of receipts and disbursements
264-25 for the period covered by the account, and the source and nature
264-26 thereof, with receipts of principal and income to be shown
264-27 separately.
265-1 (4) A complete, accurate and detailed description of
265-2 the property being administered, the condition of the property and
265-3 the use being made thereof, and, if rented, the terms upon and the
265-4 price for which rented.
265-5 (5) The cash balance on hand and the name and location
265-6 of the depository wherein such balance is kept; also, any other
265-7 sums of cash in savings accounts or other form, deposited subject
265-8 to court order, and the name and location of the depository
265-9 thereof.
265-10 (6) A detailed description of personal property of the
265-11 estate, which shall, with respect to bonds, notes, and other
265-12 securities, include the names of obligor and obligee, or if payable
265-13 to bearer, so state; the date of issue and maturity; the rate of
265-14 interest; serial or other identifying numbers; in what manner the
265-15 property is secured; and other data necessary to identify the same
265-16 fully, and how and where held for safekeeping.
265-17 (b) Annual Reports Continue Until Estate Closed. Each
265-18 personal representative of the estate of a decedent <or ward> shall
265-19 continue to file annual accounts conforming to the essential
265-20 requirements of those in Subsection (a) hereof as to changes in the
265-21 assets of the estate after rendition of the former account so that
265-22 the true condition of the estate, with respect to money,
265-23 securities, and other property, can be ascertained by the court or
265-24 by any interested person, by adding to the balances forward the
265-25 receipts, and then subtracting the disbursements. The description
265-26 of property sufficiently described in an inventory or previous
265-27 account may be by reference thereto.
266-1 (c) <Guardians of the Person. The guardian of the person,
266-2 when there is a separate guardian of the estate, shall at the
266-3 expiration of twelve (12) months from the date of his qualification
266-4 and receipt of letters, and annually thereafter, return to the
266-5 court his sworn account showing each item of receipts and
266-6 disbursements for the support and maintenance of the ward, his
266-7 education when necessary, and support and maintenance of the ward's
266-8 dependents, when authorized by order of court. All who are
266-9 guardians of the person shall include in their reports facts
266-10 concerning each ward's physical welfare, his well-being, and his
266-11 progress in education, if the latter be pertinent. Unless the
266-12 judge is satisfied that the facts stated are true, he shall issue
266-13 such orders as are necessary for the best interest of the ward.>
266-14 <(d)> Supporting Vouchers, etc., Attached to
266-15 Accounts. Annexed to all annual accounts of representatives of
266-16 estates <and wards, and, so far as applicable, accounts of
266-17 guardians of the persons of wards and guardians of those wards
266-18 entitled to receive governmental funds, required by this Section,>
266-19 shall be:
266-20 (1) Proper vouchers for each item of credit claimed in
266-21 the account, or, in the absence of such voucher, the item must be
266-22 supported by evidence satisfactory to the court. Original vouchers
266-23 may, upon application, be returned to the representative after
266-24 approval of his account.
266-25 (2) An official letter from the bank or other
266-26 depository in which the money on hand of the estate <or ward> is
266-27 deposited, showing the amounts in general or special deposits.
267-1 (3) Proof of the existence and possession of
267-2 securities owned by the estate, or shown by the accounting, as well
267-3 as other assets held by a depository subject to orders of the
267-4 court, the proof to be by one of the following means:
267-5 a. By an official letter from the bank or other
267-6 depository wherein said securities or other assets are held for
267-7 safekeeping; provided, that if such depository is the
267-8 representative, the official letter shall be signed by a
267-9 representative of such depository other than the one verifying the
267-10 account; or
267-11 b. By a certificate of an authorized
267-12 representative of the corporation which is surety on the
267-13 representative's bonds; or
267-14 c. By a certificate of the clerk or a deputy
267-15 clerk of a court of record in this State; or
267-16 d. By an affidavit of any other reputable person
267-17 designated by the court upon request of the representative or other
267-18 interested party.
267-19 Such certificate or affidavit shall be to the effect that the
267-20 affiant has examined the assets exhibited to him by the
267-21 representative as assets of the estate in which the accounting is
267-22 made, and shall describe the assets by reference to the account or
267-23 otherwise sufficiently to identify those so exhibited, and shall
267-24 state the time when and the place where exhibited. In lieu of
267-25 using a certificate or an affidavit, the representative may exhibit
267-26 the securities to the judge of the court who shall endorse on the
267-27 account, or include in his order with respect thereto, a statement
268-1 that the securities shown therein as on hand were in fact exhibited
268-2 to him, and that those so exhibited were the same as those shown in
268-3 the account, or note any variance. If the securities are exhibited
268-4 at any place other than where deposited for safekeeping, it shall
268-5 be at the expense and risk of the representative. The court may
268-6 require additional evidence as to the existence and custody of such
268-7 securities and other personal property as in his discretion he
268-8 shall deem proper; and may require the representative to exhibit
268-9 them to the court, or any person designated by him, at any time at
268-10 the place where held for safekeeping.
268-11 (d) <(e)> Verification of Account. The representative
268-12 filing the account shall attach thereto his affidavit that it
268-13 contains a correct and complete statement of the matters to which
268-14 it relates.
268-15 <(f) Annual Accounts May be Waived, When. In cases in which
268-16 the income of a ward's estate from real property becomes
268-17 negligible, and the estate owns no personal property, the estate
268-18 may be closed, as hereinafter provided. If the estate owns
268-19 personal property which produces negligible or fixed income, the
268-20 court shall have the power to waive the filing of annual accounts,
268-21 and the court may permit the guardian to receive all income and
268-22 apply it to the support, maintenance, and education of the ward,
268-23 and account to the court for income and corpus of the estate when
268-24 the same must be closed.>
268-25 SECTION 67. Section 400, Texas Probate Code, is amended to
268-26 read as follows:
268-27 Sec. 400. Penalty for Failure to File Annual Account.
269-1 Should any personal representative of an estate<, or guardian of
269-2 the person of a ward,> fail to return any annual account required
269-3 by preceding sections of this Code, any person interested in said
269-4 estate <or ward> may, upon written complaint, or the court upon its
269-5 own motion may, cause the personal representative to be cited to
269-6 return such account, and show cause for such failure. If he fails
269-7 to return said account after being so cited, or fails to show good
269-8 cause for his failure so to do, the court, upon hearing, may revoke
269-9 the letters of such representative, and may fine him in a sum not
269-10 to exceed Five Hundred Dollars ($500). He and his sureties shall
269-11 be liable for any fine imposed, and for all damages and costs
269-12 sustained by reason of such failure, which may be recovered in any
269-13 court of competent jurisdiction.
269-14 SECTION 68. Section 404, Texas Probate Code, is amended to
269-15 read as follows:
269-16 Sec. 404. Closing Administration of Estates of Decedents
269-17 <and Guardianship of Wards or Their Estates>.
269-18 <(a)> Administration of the estates of decedents <and guardianship
269-19 of the persons and estates of wards> shall be settled and closed<:>
269-20 <(1)> when all the debts known to exist against the
269-21 estate of a deceased person have been paid, or when they have been
269-22 paid so far as the assets in the hands of an administrator or
269-23 executor of such estate will permit, and when there is no further
269-24 need for administration<;>
269-25 <(2) when a minor ward dies, or becomes an adult by
269-26 becoming eighteen years of age, or by removal of disabilities of
269-27 minority according to the law of this state, or by marriage;>
270-1 <(3) when an incompetent ward dies, or is decreed as
270-2 provided by law to have been restored to sound mind or sober
270-3 habits, or, being married, when his or her spouse has qualified as
270-4 survivor in community;>
270-5 <(4) when a ward entitled to funds from a governmental
270-6 source dies, or when the court finds that the necessity for the
270-7 guardianship of that person has ended;>
270-8 <(5) when the estate of a ward becomes exhausted; or>
270-9 <(6) when the foreseeable income accruing to a ward or
270-10 to his estate is so negligible that maintaining the guardianship in
270-11 force would be burdensome.>
270-12 <(b) In a case arising under Subsection (a)(6) of this
270-13 section, the court may authorize the income to be paid to a parent,
270-14 or some other person who has acted as guardian, to assist as far as
270-15 possible in the maintenance of the ward, and without liability to
270-16 account to the court for the income.>
270-17 <(c) When the estate of a minor ward consists only of cash
270-18 or cash equivalents in an amount of not more than $25,000, the
270-19 guardianship of the estate may be terminated and the assets paid to
270-20 the county clerk of the county in which the guardianship proceeding
270-21 is pending, and the clerk shall manage the funds as provided by
270-22 Section 144(a) of this code>.
270-23 SECTION 69. Section 405, Texas Probate Code, is amended to
270-24 read as follows:
270-25 Sec. 405. Account for Final Settlement of Estates of
270-26 Decedents <and Persons and Estates of Wards>. When administration
270-27 of the estate of a decedent<, or guardianship of person or estate,
271-1 or of the person and estate of a ward,> is to be settled and
271-2 closed, the personal representative of such estate <or of such
271-3 ward> shall present to the court his verified account for final
271-4 settlement. In such account it shall be sufficient to refer to the
271-5 inventory without describing each item of property in detail, and
271-6 to refer to and adopt any and all proceedings had in the
271-7 administration <or guardianship, as the case may be,> concerning
271-8 sales, renting or hiring, leasing for mineral development, or any
271-9 other transactions on behalf of the estate <or of the ward, as the
271-10 case may be>, including exhibits, accounts, and vouchers previously
271-11 filed and approved, without restating the particular items thereof.
271-12 Each final account, however, shall be accompanied by proper
271-13 vouchers in support of each item thereof not already accounted for
271-14 and shall show, either by reference to any proceedings authorized
271-15 above or by statement of the facts:
271-16 <(a) As to Estates of Decedents.>
271-17 1. The property belonging to the estate which has come
271-18 into the hands of the executor or administrator.
271-19 2. The disposition that has been made of such
271-20 property.
271-21 3. The debts that have been paid.
271-22 4. The debts and expenses, if any, still owing by the
271-23 estate.
271-24 5. The property of the estate, if any, still remaining
271-25 on hand.
271-26 6. The persons entitled to receive such estate, their
271-27 relationship to the decedent, and their residence, if known, and
272-1 whether adults or minors, and, if minors, the names of their
272-2 guardians, if any.
272-3 7. All advancements or payments that have been made,
272-4 if any, by the executor or administrator from such estate to any
272-5 such person.
272-6 <(b) As to Estates of Wards.>
272-7 <1. The property, rents, revenues, and profits
272-8 received by the guardian, and belonging to his ward, during his
272-9 guardianship.>
272-10 <2. The disposition made of such property, rents,
272-11 revenues, and profits.>
272-12 <3. The expenses and debts, if any, against the estate
272-13 remaining unpaid.>
272-14 <4. The property of the estate remaining in the hands
272-15 of such guardian, if any.>
272-16 <5. Such other facts as appear necessary to a full and
272-17 definite understanding of the exact condition of the guardianship.>
272-18 SECTION 70. Section 406, Texas Probate Code, is amended to
272-19 read as follows:
272-20 Sec. 406. Procedure in Case of Neglect or Failure to File
272-21 Final Account; Payments Due Meantime. If a personal representative
272-22 charged with the duty of filing a final account fails or neglects
272-23 so to do at the proper time, the court shall, upon its own motion,
272-24 or upon the written complaint of any one interested in the
272-25 decedent's <or ward's> estate which has been administered, cause
272-26 such representative to be cited to appear and present such account
272-27 within the time specified in the citation. <So far as applicable,
273-1 this Section shall also govern with respect to guardians of the
273-2 person. Meantime, rentals or other payments becoming due to the
273-3 ward, his estate, or his guardian, between the date the ward's
273-4 disability terminates or the date of the ward's death and the
273-5 effective date of the guardian's discharge may be paid or tendered
273-6 to the emancipated ward, his guardian, or the personal
273-7 representative of the ward's estate, at obligor's option, and such
273-8 payment or tender shall constitute and be an absolute discharge of
273-9 such matured obligation for all purposes to the extent of the
273-10 amount thus paid or tendered.>
273-11 SECTION 71. Section 407, Texas Probate Code, is amended to
273-12 read as follows:
273-13 Sec. 407. Citation Upon Presentation of Account for Final
273-14 Settlement. Upon the filing of an account for final settlement by
273-15 temporary or permanent personal representatives of the estates of
273-16 decedents <or wards, or of the persons of wards>, citation shall
273-17 contain a statement that such final account has been filed, the
273-18 time and place when it will be considered by the court, and a
273-19 statement requiring the person or persons cited to appear and
273-20 contest the same if they see proper. Such citation shall be issued
273-21 by the county clerk to the persons and in the manner set out below.
273-22 1. In case of the estates of deceased persons, notice
273-23 shall be given by the personal representative to each heir or
273-24 beneficiary of the decedent by certified mail, return receipt
273-25 requested, unless another type of notice is directed by the court
273-26 by written order. The notice must include a copy of the account
273-27 for final settlement.
274-1 2. <If a ward be a living resident of this state who
274-2 is 14 years of age or older, and his or her residence be known, the
274-3 ward shall be cited by personal service, unless the ward, in person
274-4 or by attorney, by writing filed with the clerk, waives the
274-5 issuance and personal service of citation.>
274-6 <3. If one who has been a ward be deceased, the ward's
274-7 executor or administrator, if one has been appointed, shall be
274-8 personally served, but no service is required if the executor or
274-9 administrator is the same person as the guardian.>
274-10 <4. If a ward's residence is unknown, or if the ward
274-11 is a non-resident of this state, or if the ward is deceased and no
274-12 representative of the ward's estate has been appointed and
274-13 qualified in this state, the citation to the ward or to the ward's
274-14 estate shall be by publication, unless the court by written order
274-15 directs citation by posting.>
274-16 <5.> If the court deems further additional notice
274-17 necessary, it shall require the same by written order. In its
274-18 discretion, the court may allow the waiver of notice of an account
274-19 for final settlement in a proceeding concerning a decedent's estate
274-20 <or a guardianship>.
274-21 SECTION 72. Section 408(b), Texas Probate Code, is amended
274-22 to read as follows:
274-23 (b) Distribution of Remaining Property. Upon final
274-24 settlement of an estate, if there be any of such estate remaining
274-25 in the hands of the personal representative, the court shall order
274-26 <that it be delivered, in case of a ward, to such ward, or in the
274-27 case of a deceased ward to the personal representative of the
275-1 deceased ward's estate if one be appointed, or to any other person
275-2 legally entitled thereto; in case of a decedent,> that a partition
275-3 and distribution be made among the persons entitled to receive such
275-4 estate.
275-5 SECTION 73. Section 409, Texas Probate Code, is amended to
275-6 read as follows:
275-7 Sec. 409. Money Becoming Due Pending Final Discharge. Until
275-8 the order of final discharge of the personal representative is
275-9 entered in the minutes of the court, money or other thing of value
275-10 falling due to the estate <or ward> while the account for final
275-11 settlement is pending may be paid, delivered, or tendered to the
275-12 personal representative, who shall issue receipt therefor, and the
275-13 obligor and/or payor shall be thereby discharged of the obligation
275-14 for all purposes.
275-15 SECTION 74. Section 414, Texas Probate Code, is amended to
275-16 read as follows:
275-17 Sec. 414. Procedure if Representative Fails to Deliver
275-18 Estate. If any personal representative of an estate <or ward>,
275-19 upon final settlement, shall neglect to deliver to the person
275-20 entitled thereto when demanded any portion of an estate or any
275-21 funds or money in his hands ordered to be delivered, such person
275-22 may file with the clerk of the court his written complaint alleging
275-23 the fact of such neglect, the date of his demand, and other
275-24 relevant facts, whereupon the clerk shall issue a citation to be
275-25 served personally upon such representative, apprising him of the
275-26 complaint and citing him to appear before the court and answer, if
275-27 he so desires, at the time designated in the citation. If at the
276-1 hearing the court finds that the citation was duly served and
276-2 returned and that the representative is guilty of the neglect
276-3 charged, the court shall enter an order to that effect, and the
276-4 representative shall be liable to such person in damages at the
276-5 rate of ten per cent of the amount or appraised value of the money
276-6 or estate so withheld, per month, for each and every month or
276-7 fraction thereof that said estate or money or funds is and/or has
276-8 been so withheld after date of demand, which damages may be
276-9 recovered in any court of competent jurisdiction.
276-10 SECTION 75. The following provisions of the Texas Probate
276-11 Code are repealed:
276-12 (1) Sections 7, 130, 131, 144, 157, 158, 184, 185,
276-13 191, 193, 228, 229, 231, 236, 237, 246, 247, 305, 330, 339A, 376,
276-14 383, 404A, 404B, 411, and 413;
276-15 (2) Parts 3 and 5, Chapter V;
276-16 (3) Part 2, Chapter VI;
276-17 (4) Parts 9 and 10, Chapter VIII; and
276-18 (5) Chapter IX.
276-19 SECTION 76. (a) This Act applies to:
276-20 (1) an application for the appointment of a guardian
276-21 that is filed on or after September 1, 1993; and
276-22 (2) an application for the appointment of a guardian
276-23 that is filed before September 1, 1993, in which a guardianship has
276-24 not been created.
276-25 (b) An application described by Subsection (a)(2) of this
276-26 section must be modified to conform to the changes in law made by
276-27 this Act.
277-1 (c) A guardianship existing on September 1, 1993, must be
277-2 modified to conform to the changes in law made by this Act.
277-3 SECTION 77. This Act takes effect September 1, 1993.
277-4 SECTION 78. The importance of this legislation and the
277-5 crowded condition of the calendars in both houses create an
277-6 emergency and an imperative public necessity that the
277-7 constitutional rule requiring bills to be read on three several
277-8 days in each house be suspended, and this rule is hereby suspended.