By: Naishtat H.B. No. 2685
73R496 CLG-F
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 or as
1-15 otherwise specified in this chapter or in the court order that
1-16 appoints the attorney ad litem.
1-17 (2) "Authorized corporate surety" means a domestic or
1-18 foreign corporation authorized to do business in this state to
1-19 issue surety, guaranty, or indemnity bonds guaranteeing the
1-20 fidelity of guardians.
1-21 (3) "Child" includes a biological or adopted child,
1-22 whether adopted by a parent under a statutory procedure or by acts
1-23 of estoppel.
1-24 (4) "Claims" includes a liability against the estate
2-1 of a minor or an incapacitated person and debts due to the estate
2-2 of a minor or an incapacitated person.
2-3 (5) "Corporate fiduciary" means a trust company or
2-4 bank having trust powers, existing or doing business under the laws
2-5 of this state or of the United States, that is authorized by law to
2-6 act under the order or appointment of any court of record, without
2-7 giving bond, as a guardian, receiver, trustee, executor, or
2-8 administrator, or, although without general depository powers, as a
2-9 depository for any money paid into court, or to become sole
2-10 guarantor or surety in or on any bond required to be given under
2-11 the laws of this state.
2-12 (6) "Court" or "probate court" means a county court in
2-13 the exercise of its probate jurisdiction, a court created by
2-14 statute and authorized to exercise original probate jurisdiction,
2-15 or a district court exercising original probate jurisdiction in
2-16 contested matters.
2-17 (7) "Estate" or "guardianship estate" means the real
2-18 and personal property of a ward or deceased ward, both as the
2-19 property originally existed and as has from time to time changed in
2-20 form by sale, reinvestment, or otherwise, and as augmented by any
2-21 accretions and additions to (including any property to be
2-22 distributed to the representative of the deceased ward by the
2-23 trustee of a trust that terminates on the ward's death) or
2-24 substitutions for the property, and as diminished by any decreases
2-25 to or distributions from the property.
2-26 (8) "Exempt property" refers to that property of a
2-27 deceased ward's estate that is exempt from execution or forced sale
3-1 by the constitution or laws of this state, and to the allowance in
3-2 lieu of the property.
3-3 (9) "Guardian ad litem" means a person who is
3-4 appointed by a court to represent a minor or other incapacitated
3-5 person in a guardianship proceeding.
3-6 (10) "Incapacitated person" means:
3-7 (A) a minor;
3-8 (B) an adult individual who, because of a
3-9 physical or mental condition, is substantially unable to provide
3-10 food, clothing, or shelter for himself or herself, to care for the
3-11 individual's own physical health, or to manage the individual's own
3-12 financial affairs;
3-13 (C) a missing person; or
3-14 (D) a person who must have a guardian appointed
3-15 to receive funds due the person from any governmental source.
3-16 (11) "Interested persons" or "persons interested"
3-17 means an heir, devisee, spouse, creditor, or any other person
3-18 having a property right in, or claim against, the estate being
3-19 administered or a person interested in the welfare of an
3-20 incapacitated person, including a minor.
3-21 (12) "Minor" means a person who is younger than 18
3-22 years of age and who has never been married or who has not had the
3-23 person's disabilities of minority removed for general purposes.
3-24 (13) "Minutes" means the guardianship minutes.
3-25 (14) "Missing person" means a person reported by an
3-26 executive department of the United States to be a prisoner of war
3-27 or missing in the course of public service to the United States.
4-1 (15) "Mortgage" or "lien" includes a deed of trust;
4-2 vendor's lien; chattel mortgage; mechanic's, materialman's or
4-3 laborer's lien; judgment, attachment or garnishment lien; pledge by
4-4 hypothecation; and a federal or state tax lien.
4-5 (16) "Next of kin" includes an adopted child, the
4-6 descendants of an adopted child, and the adoptive parent of an
4-7 adopted child.
4-8 (17) "Parent" means the mother of a child, a man
4-9 presumed to be the biological father of a child, a man who has been
4-10 adjudicated to be the biological father of a child by a court of
4-11 competent jurisdiction, or an adoptive mother or father of a child,
4-12 but does not include a parent as to whom the parent-child
4-13 relationship has been terminated.
4-14 (18) "Person" includes natural persons and
4-15 corporations.
4-16 (19) "Personal property" includes an interest in
4-17 goods, money, choses in action, evidence of debts, and chattels
4-18 real.
4-19 (20) "Personal representative" or "representative"
4-20 includes a guardian, and a successor guardian.
4-21 (21) "Private professional guardian" means a person
4-22 who is engaged in the business of providing guardianship services.
4-23 (22) "Proceedings in guardianship," "guardianship
4-24 matter," "guardianship matters," "guardianship proceeding," and
4-25 "proceedings for guardianship" are synonymous and include a matter
4-26 or proceeding relating to a guardianship, a proceeding other than a
4-27 guardianship relating to an incapacitated person, or any other
5-1 matter addressed by this chapter.
5-2 (23) "Property" includes both real and personal
5-3 property.
5-4 (24) "Proposed ward" means a person alleged to be
5-5 incapacitated in a guardianship proceeding.
5-6 (25) "Real property" includes estates and interests in
5-7 lands, corporeal or incorporeal, legal or equitable, other than
5-8 chattels real.
5-9 (26) "Statutory probate court" means a statutory court
5-10 whose jurisdiction is limited by statute to the general
5-11 jurisdiction of a probate court and a court whose statutorily
5-12 designated name contains the word "probate." County courts at law
5-13 exercising probate jurisdiction are not statutory probate courts
5-14 under this chapter unless the statutorily designated name of the
5-15 county courts at law includes the word "probate."
5-16 (27) "Surety" includes a personal and a corporate
5-17 surety.
5-18 (28) "Ward" is a person for whom a guardian has been
5-19 appointed.
5-20 (29) The singular number includes the plural; the
5-21 plural number includes the singular.
5-22 (30) The masculine gender includes the feminine and
5-23 neuter.
5-24 Sec. 602. POLICY; PURPOSE OF GUARDIANSHIP. A court may
5-25 appoint a guardian only to the extent required by an incapacitated
5-26 person's actual mental or physical limitations and only as
5-27 necessary to promote and protect the well-being of the person. If
6-1 the person is not a minor, the court may not use age as the sole
6-2 factor in determining whether to appoint a guardian for the person.
6-3 The court shall design the guardianship to encourage the
6-4 development or maintenance of maximum self-reliance and
6-5 independence in the incapacitated person.
6-6 Sec. 603. LAWS APPLICABLE TO GUARDIANSHIPS. (a) To the
6-7 extent applicable and not inconsistent with other provisions of
6-8 this code, the laws and rules governing estates of decedents apply
6-9 to and govern guardianships.
6-10 (b) A reference in other sections of this code or in other
6-11 law to a person who is mentally, physically, or legally
6-12 incompetent, a person who is judicially declared incompetent, an
6-13 incompetent or an incompetent person, a person of unsound mind, or
6-14 a habitual drunkard means an incapacitated person.
6-15 Sec. 604. PROCEEDING IN REM. From the filing of the
6-16 application for the appointment of a guardian of the estate or
6-17 person, or both, until the guardianship is settled and closed under
6-18 this chapter, the administration of the estate of a minor or other
6-19 incapacitated person is one proceeding for purposes of jurisdiction
6-20 and is a proceeding in rem.
6-21 PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS
6-22 SUBPART A. JURISDICTION
6-23 Sec. 605. County Court Jurisdiction. The county court has
6-24 the general jurisdiction of a probate court. The county court
6-25 shall appoint guardians of minors and other incapacitated persons,
6-26 grant letters of guardianship, settle accounts of guardians, and
6-27 transact all business appertaining to estates subject to
7-1 guardianship, including the settlement, partition, and distribution
7-2 of the estates. The county court may also enter other orders as
7-3 may be authorized under this chapter.
7-4 Sec. 606. District Court and Other Court of Record
7-5 Jurisdiction. (a) The district court has original control and
7-6 jurisdiction over guardians and wards under regulations as may be
7-7 prescribed by law.
7-8 (b) In those counties in which there is no statutory probate
7-9 court, county court at law, or other statutory court exercising the
7-10 jurisdiction of a probate court, all applications, petitions and
7-11 motions regarding guardianships, mental illness matters, and other
7-12 matters covered by this chapter shall be filed and heard in the
7-13 county court, except that in contested guardianship matters, the
7-14 judge of the county court may on the judge's own motion, or shall
7-15 on the motion of any party to the proceeding, according to the
7-16 motion, request as provided by Section 25.0022, Government Code,
7-17 and its subsequent amendments the assignment of a statutory probate
7-18 judge to hear the contested portion of the proceeding, or transfer
7-19 the contested portion of the proceeding to the district court,
7-20 which may hear the transferred contested matters as if originally
7-21 filed in the district court. The county court continues to
7-22 exercise jurisdiction over the management of the guardianship with
7-23 the exception of the contested matter until final disposition of
7-24 the contested matter is made by the assigned judge or the district
7-25 court. In contested matters transferred to the district court as
7-26 provided by this subsection, the district court, concurrently with
7-27 the county court, has the general jurisdiction of a probate court.
8-1 On resolution of all pending contested matters, the district court
8-2 shall transfer the contested portion of the guardianship proceeding
8-3 to the county court for further proceedings not inconsistent with
8-4 the orders of the district court. If a contested portion of the
8-5 proceeding is transferred to a district court under this
8-6 subsection, the clerk of the district court may perform in relation
8-7 to the transferred portion of the proceeding any function a county
8-8 clerk may perform in that type of contested proceeding.
8-9 (c) In those counties in which there is a statutory probate
8-10 court, county court at law, or other statutory court exercising the
8-11 jurisdiction of a probate court, all applications, petitions and
8-12 motions regarding guardianships, mental illness matters, or other
8-13 matters addressed by this chapter shall be filed and heard in those
8-14 courts and the constitutional county court, rather than in the
8-15 district courts, unless otherwise provided by the legislature, and
8-16 the judge of a county court may hear any of those matters sitting
8-17 for the judge of any other county court. Except as provided by
8-18 Section 608 of this code, in contested guardianship matters, the
8-19 judge of the constitutional county court may on the judge's own
8-20 motion, and shall on the motion of a party to the proceeding,
8-21 transfer the proceeding to the statutory probate court, county
8-22 court at law, or other statutory court exercising the jurisdiction
8-23 of a probate court. The court to which the proceeding is
8-24 transferred may hear the proceeding as if originally filed in the
8-25 court.
8-26 (d) A statutory probate court has concurrent jurisdiction
8-27 with the district court in all actions by or against a person in
9-1 the person's capacity as guardian.
9-2 (e) A court that exercises original probate jurisdiction has
9-3 the power to hear all matters incident to an estate. When a surety
9-4 is called on to perform in place of a guardian, a court exercising
9-5 original probate jurisdiction may award judgment against the
9-6 guardian in favor of the guardian's surety in the same suit.
9-7 (f) A final order of a court that exercises original probate
9-8 jurisdiction is appealable to a court of appeals.
9-9 Sec. 607. Matters Appertaining and Incident to an Estate.
9-10 (a) In a proceeding in a constitutional county court or a
9-11 statutory county court at law, the phrases "appertaining to
9-12 estates" and "incident to an estate" in this chapter include the
9-13 appointment of guardians, the issuance of letters of guardianship,
9-14 a claim by or against a guardianship estate, all actions for trial
9-15 of title to land incident to a guardianship estate and for the
9-16 enforcement of liens incident to a guardianship estate, all actions
9-17 for trial of the right of property incident to a guardianship
9-18 estate, and generally all matters relating to the settlement,
9-19 partition, and distribution of a guardianship estate.
9-20 (b) In a proceeding in a statutory probate court or district
9-21 court, the phrases "appertaining to estates" and "incident to an
9-22 estate" in this chapter include the appointment of guardians, the
9-23 issuance of letters of guardianship, all claims by or against a
9-24 guardianship estate, all actions for trial of title to land and for
9-25 the enforcement of liens on the land, all actions for trial of the
9-26 right of property, and generally all matters relating to the
9-27 settlement, partition, and distribution of a guardianship estate.
10-1 A statutory probate court, in the exercise of its jurisdiction and
10-2 notwithstanding any other provision of this chapter, may hear all
10-3 suits, actions, and applications filed against or on behalf of any
10-4 guardianship. In a situation in which the jurisdiction of a
10-5 statutory probate court is concurrent with that of a district
10-6 court, a cause of action appertaining to or incident to a
10-7 guardianship estate shall be brought in a statutory probate court
10-8 rather than in the district court.
10-9 (c) In all actions by or against a person in the person's
10-10 capacity as a guardian, a statutory probate court has concurrent
10-11 jurisdiction with a district court.
10-12 (d) A statutory probate court may exercise the pendent and
10-13 ancillary jurisdiction necessary to promote judicial efficiency and
10-14 economy.
10-15 (e) Subsections (c) and (d) of this section apply whether or
10-16 not the matter is appertaining to or incident to a guardianship
10-17 estate.
10-18 Sec. 608. Transfer of Guardianship Proceeding. A judge of a
10-19 statutory probate court on the motion of a party to the action or
10-20 of a person interested in a guardianship, may transfer to the
10-21 judge's court from a district, county, or statutory court a cause
10-22 of action appertaining to or incident to a guardianship estate that
10-23 is pending in the statutory probate court and may consolidate the
10-24 transferred cause of action with the other proceedings in the
10-25 statutory probate court relating to the guardianship estate.
10-26 Sec. 609. Contested Guardianship of the Person of a Minor.
10-27 (a) If an interested person contests an application for the
11-1 appointment of a guardian of the person of a minor or an interested
11-2 person seeks the removal of a guardian of the person of a minor,
11-3 the judge in a suit affecting the parent-child relationship under
11-4 the Family Code may, on the judge's own motion, transfer all
11-5 matters relating to the guardianship of the person of the minor or
11-6 the conservatorship of the minor to a court of competent
11-7 jurisdiction.
11-8 (b) The probate court that transfers a proceeding under this
11-9 section to a court with proper jurisdiction over suits affecting
11-10 the parent-child relationship shall send to the court to which the
11-11 transfer is made the complete files in all matters affecting the
11-12 guardianship of the person of the minor and certified copies of all
11-13 entries in the minutes. The transferring court shall keep a copy
11-14 of the transferred files. If the transferring court retains
11-15 jurisdiction of the guardianship of the estate of the minor or of
11-16 another minor who was the subject of the suit, the court shall send
11-17 a copy of the complete files to the court to which the transfer is
11-18 made and shall keep the original files.
11-19 (c) The court to which a transfer is made under this section
11-20 shall apply the procedural and substantive provisions of the Family
11-21 Code, including Section 11.05(h), and its subsequent amendments, in
11-22 regard to enforcing an order rendered by the court from which the
11-23 proceeding was transferred.
11-24 SUBPART B. VENUE
11-25 Sec. 610. VENUE FOR APPOINTMENT OF GUARDIAN. (a) Except as
11-26 otherwise authorized by this section, a proceeding for the
11-27 appointment of a guardian for the person or estate, or both, of an
12-1 incapacitated person shall be brought in the county in which the
12-2 proposed ward resides or is located on the date the application is
12-3 filed or in the county in which the principal estate of the
12-4 proposed ward is located.
12-5 (b) A proceeding for the appointment of a guardian for the
12-6 person or estate, or both, of a minor may be brought:
12-7 (1) in the county in which both the minor's parents
12-8 reside;
12-9 (2) if the parents do not reside in the same county,
12-10 in the county in which the parent who is the sole managing
12-11 conservator of the minor resides, or in the county in which the
12-12 parent who is the joint managing conservator with the greater
12-13 period of physical possession of and access to the minor resides;
12-14 (3) if only one parent is living and the parent has
12-15 custody of the minor, in the county in which that parent resides;
12-16 (4) if both parents are dead but the minor was in the
12-17 custody of a deceased parent, in the county in which the last
12-18 surviving parent having custody resided; or
12-19 (5) if both parents of a minor child have died in a
12-20 common disaster and there is no evidence that the parents died
12-21 other than simultaneously, in the county in which both deceased
12-22 parents resided at the time of their simultaneous deaths if they
12-23 resided in the same county.
12-24 (c) A proceeding for the appointment of a guardian who was
12-25 appointed by will may be brought in the county in which the will
12-26 was admitted to probate or in the county of the appointee's
12-27 residence if the appointee resides in this state.
13-1 (d) A proceeding for the appointment of a guardian for the
13-2 estate of a missing person may be brought:
13-3 (1) in the county in which the missing person's spouse
13-4 resides;
13-5 (2) if there is no spouse, in the county in which a
13-6 parent or child of the missing person resides; or
13-7 (3) if there is no spouse, parent, or child, in the
13-8 county in which the missing person's next of kin resides.
13-9 Sec. 611. Concurrent Venue and Transfer for Want of Venue.
13-10 (a) If two or more courts have concurrent venue of a guardianship
13-11 matter, the court in which an application for a guardianship
13-12 proceeding is initially filed has and retains jurisdiction of the
13-13 guardianship matter. A proceeding is considered commenced by the
13-14 filing of an application alleging facts sufficient to confer venue,
13-15 and the proceeding initially legally commenced extends to all of
13-16 the property of the guardianship estate.
13-17 (b) If a guardianship proceeding is commenced in more than
13-18 one county, it shall be stayed except in the county in which it was
13-19 initially commenced until final determination of proper venue is
13-20 made by the court in the county in which it was initially
13-21 commenced.
13-22 (c) If it appears to the court at any time before the
13-23 guardianship is closed that the proceeding was commenced in a court
13-24 that did not have venue over the proceeding, the court shall, on
13-25 the application of any interested person, transfer the proceeding
13-26 to the proper county.
13-27 (d) When a proceeding is transferred to another county under
14-1 a provision of this chapter, all orders entered in connection with
14-2 the proceeding shall be valid and shall be recognized in the court
14-3 to which the guardianship was ordered transferred, if the orders
14-4 were made and entered in conformance with the procedures prescribed
14-5 by this code.
14-6 Sec. 612. APPLICATION FOR TRANSFER OF GUARDIANSHIP TO
14-7 ANOTHER COUNTY. When a guardian or any other person desires to
14-8 remove the transaction of the business of the guardianship from one
14-9 county to another, the person shall file a written application in
14-10 the court in which the guardianship is pending stating the reason
14-11 for moving the transaction of business.
14-12 Sec. 613. NOTICE. (a) On filing an application to remove a
14-13 guardianship to another county, the sureties on the bond of the
14-14 guardian shall be cited by personal service to appear and show
14-15 cause why the application should not be granted.
14-16 (b) If an application is filed by a person other than the
14-17 guardian, the guardian shall be cited by personal service to appear
14-18 and show cause why the application should not be granted.
14-19 Sec. 614. COURT ACTION. On hearing an application under
14-20 Section 612 of this code, if good cause is not shown to deny the
14-21 application and it appears that removal of the guardianship is in
14-22 the best interests of the ward, the court shall enter an order
14-23 authorizing the removal on payment on behalf of the estate of all
14-24 accrued costs.
14-25 Sec. 615. TRANSCRIPT OF RECORD. When an order of removal is
14-26 made under Section 614 of this code, the clerk shall record any
14-27 unrecorded papers of the guardianship required to be recorded and
15-1 make out a complete certified transcript of all the orders,
15-2 decrees, judgments, and proceedings in the guardianship. On
15-3 payment of the clerk's fees, the clerk shall transmit the
15-4 transcript, with the original papers in the case, to the county
15-5 clerk of the county to which the guardianship was ordered removed.
15-6 Sec. 616. REMOVAL EFFECTIVE. The order removing a
15-7 guardianship does not take effect until:
15-8 (1) the transcript required by Section 615 of this
15-9 code is filed in the office of the county clerk of the county to
15-10 which the guardianship was ordered removed; and
15-11 (2) a certificate under the clerk's official seal and
15-12 reporting the filing of the transcript is filed in the court
15-13 ordering the removal by the county clerk of the county to which the
15-14 guardianship was ordered removed.
15-15 Sec. 617. CONTINUATION OF GUARDIANSHIP. When a guardianship
15-16 is removed from one county to another in accordance with this
15-17 subpart, the guardianship proceeds in the court to which it was
15-18 removed as if it had been originally commenced in that court. It
15-19 is not necessary to record in the receiving court any of the papers
15-20 in the case that were recorded in the court from which the case was
15-21 removed.
15-22 Sec. 618. NEW GUARDIAN APPOINTED ON REMOVAL. If it appears
15-23 to the court that removal of the guardianship is in the best
15-24 interests of the ward, but that because of the removal it will be
15-25 unduly expensive or unduly inconvenient to the estate for the
15-26 guardian of the estate to continue to serve in that capacity, the
15-27 court may in its order of removal revoke the letters of
16-1 guardianship and appoint a new guardian, and the former guardian
16-2 shall account for and deliver the estate as provided by this
16-3 chapter in a case in which a guardian resigns.
16-4 SUBPART C. DUTIES AND RECORDS OF CLERK
16-5 Sec. 621. Application and Other Papers to be Filed With
16-6 Clerk. (a) An application for a guardianship proceeding, a
16-7 complaint, petition, or other paper permitted or required by law to
16-8 be filed in the court in guardianship matters shall be filed with
16-9 the county clerk of the proper county.
16-10 (b) The county clerk shall file the paper received under
16-11 this section and endorse on each paper the date filed, the docket
16-12 number, and the clerk's official signature.
16-13 Sec. 622. COSTS AND SECURITY. (a) The law regulating costs
16-14 in ordinary civil cases apply to a guardianship matter unless
16-15 otherwise expressly provided by this chapter.
16-16 (b) When a person other than the guardian files an
16-17 application, complaint, or opposition in relation to a guardianship
16-18 matter, the clerk may require the person to give security for the
16-19 probable cost of the guardianship proceeding before filing. A
16-20 person interested in the guardianship or in the welfare of the
16-21 ward, or an officer of the court, at any time before the trial of
16-22 an application, complaint, or opposition in relation to a
16-23 guardianship matter, may obtain from the court, on written motion,
16-24 an order requiring the person who filed the application, complaint,
16-25 or opposition to give security for the probable costs of the
16-26 proceeding. The rules governing civil suits in the county court
16-27 relating to this subject control in these cases.
17-1 (c) No security for costs shall be required of a guardian
17-2 appointed by a court of this state in any suit brought by the
17-3 guardian in the guardian's fiduciary capacity.
17-4 Sec. 623. JUDGE'S GUARDIANSHIP DOCKET. (a) The county
17-5 clerk shall keep a record book to be styled "Judge's Guardianship
17-6 Docket" and shall enter in the record book:
17-7 (1) the name of each person on whose person or estate
17-8 a proceeding is had or is sought to be had;
17-9 (2) the name of the guardian of the estate or person
17-10 or of the applicant for letters;
17-11 (3) the date the original application for a
17-12 guardianship proceeding was filed;
17-13 (4) a minute, including the date, of each order,
17-14 judgment, decree, and proceeding in each estate; and
17-15 (5) a number of each guardianship on the docket in the
17-16 order in which a proceeding is commenced.
17-17 (b) Each paper filed in a guardianship proceeding shall be
17-18 given the corresponding docket number of the estate.
17-19 Sec. 624. CLAIM DOCKET. The county clerk shall keep a
17-20 record book to be styled "Claim Docket" and shall enter in the
17-21 claim docket all claims presented against a guardianship for court
17-22 approval. The claim docket shall be ruled in 16 columns at proper
17-23 intervals from top to bottom, with a short note of the contents at
17-24 the top of each column. One or more pages shall be assigned to
17-25 each guardianship. The following information shall be entered in
17-26 the respective columns beginning with the first or marginal
17-27 column: The names of claimants in the order in which their claims
18-1 are filed; the amount of the claim; its date; the date of filing;
18-2 when due; the date from which it bears interest; the rate of
18-3 interest; when allowed by the guardian; the amount allowed; the
18-4 date of rejection; when approved; the amount approved; when
18-5 disapproved; the class to which the claim belongs; when established
18-6 by judgment of a court; the amount of the judgment.
18-7 Sec. 625. GUARDIANSHIP MINUTES AND PAPERS TO BE RECORDED
18-8 THEREIN. The county clerk shall keep a record book styled
18-9 "Guardianship Minutes" and shall enter in the guardianship minutes
18-10 all orders in full, judgments, decrees, and proceedings of the
18-11 court, in addition to all:
18-12 (1) applications for the granting of guardianship;
18-13 (2) citations and notices, whether published or
18-14 posted, with the returns on the citations and notices;
18-15 (3) bonds and official oaths;
18-16 (4) inventories, appraisements, and lists of claims;
18-17 (5) exhibits and accounts;
18-18 (6) reports of hiring, renting, or sale;
18-19 (7) applications for sale or partition of real estate
18-20 and reports of sale and of commissioners of partition;
18-21 (8) applications for authority to execute leases for
18-22 mineral development, or for pooling or unitization of lands,
18-23 royalty, or other interest in minerals, or to lend or invest money;
18-24 (9) reports of lending or investing money; and
18-25 (10) reports of guardians of the persons.
18-26 Sec. 626. GUARDIANSHIP FEE BOOK. The county clerk shall
18-27 keep a record book styled "Guardianship Fee Book" and shall enter
19-1 in the guardianship fee book each item of costs that accrue to the
19-2 officers of the court, with witness fees, if any, showing the:
19-3 (1) party to whom the costs or fees are due;
19-4 (2) date of the accrual of the costs or fees;
19-5 (3) guardianship or party liable for the costs or
19-6 fees; and
19-7 (4) date on which the costs or fees are paid.
19-8 Sec. 627. INDEX. The county clerk shall properly index each
19-9 record book and keep it open for public inspection but may not
19-10 release it from the clerk's custody.
19-11 Sec. 628. USE OF RECORDS AS EVIDENCE. The record books
19-12 described in other sections of this chapter, or certified copies of
19-13 the record books are evidence in any court of this state.
19-14 Sec. 629. CALL OF THE DOCKETS. The judge of the court in
19-15 which a guardianship proceeding is pending, as the judge
19-16 determines, shall call guardianship matters in their regular order
19-17 on both the guardianship and claim dockets and shall make necessary
19-18 orders.
19-19 Sec. 630. CLERK MAY SET HEARINGS. If the county judge is
19-20 absent from the county seat or is on vacation, disqualified, ill,
19-21 or deceased and is unable to designate the time and place for
19-22 hearing a guardianship matter pending in the judge's court, the
19-23 county clerk of the county in which the matter is pending may
19-24 designate the time and place for hearing, entering the setting on
19-25 the judge's docket and certifying on the docket the reason that the
19-26 judge is not acting to set the hearing. If a qualified judge is
19-27 not present for the hearing, after service of the notices and
20-1 citations required by law with reference to the time and place of
20-2 hearing has been perfected, the hearing is automatically continued
20-3 from day to day until a qualified judge is present to hear and
20-4 determine the matter.
20-5 Sec. 631. CLERK'S DUTIES. (a) If the proper venue is
20-6 finally determined to be in another county, the clerk, after making
20-7 and retaining a true copy of the entire file in the case, shall
20-8 transmit the original file to the proper county, and a proceeding
20-9 shall be held in the proper county in the same manner as if the
20-10 proceeding had originally been instituted in the proper county.
20-11 (b) By transmitting to the proper court in the proper county
20-12 for venue purposes the original file in the case, with certified
20-13 copies of all entries in the minutes made in the file, an
20-14 administration of the guardianship in the proper county for venue
20-15 purposes shall be completed in the same manner as if the proceeding
20-16 had originally been instituted in that county.
20-17 (c) The clerk of the court from which the proceeding is
20-18 transferred shall transmit to the court to which the proceeding is
20-19 transferred the original file in the proceeding and a certified
20-20 copy of the entries in the minutes that relate to the proceeding.
20-21 SUBPART D. SERVICE AND NOTICE
20-22 Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
20-23 CITATION, NOTICES, AND WRITS IN GUARDIANSHIP MATTERS. (a) A
20-24 person does not need to be cited or otherwise given notice in a
20-25 guardianship matter except in situations in which this chapter
20-26 expressly provides for citation or the giving of notice. If this
20-27 chapter does not expressly provide for citation or the issuance or
21-1 return of notice in a guardianship matter, the court may require
21-2 that notice be given. If the court requires that notice be given,
21-3 the court shall prescribe the form and manner of service and return
21-4 of service.
21-5 (b) Unless a court order is required by a provision of this
21-6 chapter, the county clerk shall issue without a court order
21-7 necessary citations, writs, and process in guardianship matters and
21-8 all notices not required to be issued by guardians.
21-9 (c) A citation and notice issued by the clerk shall be
21-10 signed and sealed by the clerk and shall be styled "The State of
21-11 Texas." A notice required to be given by a guardian shall be in
21-12 writing and signed by the guardian in the guardian's official
21-13 capacity. A citation or notice shall be dated and directed to the
21-14 person that is being cited or notified and must state the style and
21-15 number of the proceeding and the court in which the proceeding is
21-16 pending and must describe generally the nature of the proceeding or
21-17 matter to which the citation or notice relates. A precept directed
21-18 to an officer is not necessary. A citation or notice must direct
21-19 the person cited or notified to appear by filing a written contest
21-20 or answer or perform other required acts. A citation or notice
21-21 must state when and where an appearance or performance by a person
21-22 cited or notified is required. A citation or notice is not
21-23 defective because it contains a precept directed to an officer
21-24 authorized to serve it. A writ or other process other than a
21-25 citation or notice shall be directed "To any sheriff or constable
21-26 within the State of Texas" and may not be held defective because it
21-27 is directed to the sheriff or any constable of a specific county if
22-1 the writ or other process is properly served within the named
22-2 county by an officer authorized to serve it.
22-3 (d) In all situations in which this chapter requires that
22-4 notice be given or that a person be cited, and in which a specific
22-5 method of giving the notice or citing the person, or a specific
22-6 method of service and return of the citation or notice is not
22-7 given, or an insufficient or inadequate provision appears with
22-8 respect to any matter relating to citation or notice, or on request
22-9 of an interested person, notice or citation shall be issued,
22-10 served, and returned in the manner the court, by written order,
22-11 directs in accordance with this chapter and the Texas Rules of
22-12 Civil Procedure and has the same force and effect as if the manner
22-13 of service and return had been specified in this chapter.
22-14 (e) Except in instances in which this chapter expressly
22-15 provides for another method of service, a notice or citation
22-16 required to be served on a guardian or receiver shall be served by
22-17 the clerk that issues the citation or notice. The clerk shall
22-18 serve the citation or notice by sending the original citation or
22-19 notice by registered or certified mail to the attorney of record
22-20 for the guardian or receiver or to the guardian or receiver, if the
22-21 guardian or receiver does not have an attorney of record.
22-22 (f)(1) In cases in which it is provided that personal
22-23 service shall be had with respect to a citation or notice, the
22-24 citation or notice must be served on the attorney of record for the
22-25 person who is being cited or notified. Notwithstanding the
22-26 requirement of personal service, service may be made on the
22-27 attorney by any method specified under this chapter for service on
23-1 an attorney. If there is no attorney of record in the proceeding
23-2 for the person who is being cited or notified, or if an attempt to
23-3 make service on the attorney was unsuccessful, a citation or notice
23-4 directed to a person within this state must be served in person by
23-5 the sheriff or constable on the person who is being cited or
23-6 notified by delivering to the person a true copy of the citation or
23-7 notice at least 10 days before the return day on the citation or
23-8 notice, exclusive of the date of service. If the person who is
23-9 being cited or notified is absent from the state or is a
23-10 nonresident, the citation or notice may be served by a
23-11 disinterested person competent to make oath of the fact. The
23-12 citation or notice served by a disinterested person shall be
23-13 returnable at least 10 days after the date of service, exclusive of
23-14 the date of service. The return of the person serving the citation
23-15 or notice shall be endorsed on or attached to the citation or
23-16 notice. The return must show the time and place of service,
23-17 certify that a true copy of the citation or notice was delivered to
23-18 the person directed to be served, be subscribed and sworn to before
23-19 an officer authorized by the laws of this state to take affidavits,
23-20 under the hand and official seal of the officer, and returned to
23-21 the county clerk who issued the citation or notice. If the
23-22 citation or notice is returned with the notation that the person
23-23 sought to be served, whether or not within this state, cannot be
23-24 found, the clerk shall issue a new citation or notice directed to
23-25 the person sought to be served and service shall be by publication.
23-26 (2) When citation or notice is required to be posted,
23-27 the sheriff or constable shall post the citation or notice at the
24-1 courthouse door of the county in which the proceeding is pending,
24-2 or at the place in or near the courthouse where public notices
24-3 customarily are posted, for at least 10 days before the return day
24-4 of the citation or notice, exclusive of the date of posting. The
24-5 clerk shall deliver the original and a copy of the citation or
24-6 notice to the sheriff or a constable of the proper county, who
24-7 shall post the copy as prescribed by this section and return the
24-8 original to the clerk, stating in a written return of the copy the
24-9 time when and the place where the sheriff or constable posted the
24-10 copy. The date of posting is the date of service. When posting of
24-11 notice by a guardian is authorized or required, the method
24-12 prescribed by this section shall be followed. The notice is to be
24-13 issued in the name of the guardian, addressed and delivered to,
24-14 posted and returned by, the proper officer, and filed with the
24-15 clerk.
24-16 (3) When a person is to be cited or notified by
24-17 publication, the citation or notice shall be published once in a
24-18 newspaper of general circulation in the county in which the
24-19 proceeding is pending, and the publication shall be not less than
24-20 10 days before the return date of the citation or notice, exclusive
24-21 of the date of publication. The date of publication of the
24-22 newspaper in which the citation or notice is published appears is
24-23 the date of service. If there is no newspaper of general
24-24 circulation published or printed in the county in which citation or
24-25 notice is to be had, service of the citation or notice shall be by
24-26 posting.
24-27 (4)(A) When a citation or notice is required or
25-1 permitted to be served by registered or certified mail, other than
25-2 a notice required to be given by a guardian, the clerk shall issue
25-3 the citation or notice and shall serve the citation or notice by
25-4 sending the original citation or notice by registered or certified
25-5 mail. A guardian shall issue notice required to be given by the
25-6 guardian by registered or certified mail, and the guardian shall
25-7 serve the notice by sending the original notice by registered or
25-8 certified mail. The citation or notice shall be mailed return
25-9 receipt requested with instructions to deliver to the addressee
25-10 only. The envelope containing the citation or notice shall be
25-11 addressed to the attorney of record in the proceeding for the
25-12 person who is being cited or notified, but if there is no attorney
25-13 of record, or if the citation or notice is returned undelivered,
25-14 the envelope containing the citation or notice shall be addressed
25-15 to the person who is being cited or notified. A copy of the
25-16 citation or notice and the certificate of the clerk or guardian
25-17 showing the fact and date of mailing shall be filed and recorded.
25-18 If a receipt is returned, it shall be attached to the certificate.
25-19 (B) When a citation or notice is required or
25-20 permitted to be served by ordinary mail, the clerk or the guardian
25-21 when required by statute or court order, shall serve the citation
25-22 or notice by mailing the original to the person being cited or
25-23 notified. A copy of the citation or notice and a certificate of
25-24 the person serving the citation or notice that shows the fact and
25-25 time of mailing shall be filed and recorded.
25-26 (C) When service is made by mail, the date of
25-27 mailing is the date of service. Service by mail must be made not
26-1 less than 20 days before the return day of the citation or notice,
26-2 exclusive of the date of service.
26-3 (D) If a citation or notice served by mail is
26-4 returned undelivered, a new citation or notice shall be issued, and
26-5 the new citation or notice shall be served by posting.
26-6 (g) A citation or notice issued by the clerk and served by
26-7 personal service, by mail, by posting, or by publication shall be
26-8 returned to the court from which the citation or notice was issued
26-9 on the first Monday after the service is perfected.
26-10 (h) In a guardianship matter in which citation or notice is
26-11 required to be served by posting and issued in conformity with the
26-12 applicable provision of this code, the citation or notice and the
26-13 service of and return of the citation or notice is sufficient and
26-14 valid if a sheriff or constable posts a copy of the citation or
26-15 notice at the place or places prescribed by this chapter on a day
26-16 that is sufficiently before the return day contained in the
26-17 citation or notice for the period of time for which the citation or
26-18 notice is required to be posted to elapse before the return day of
26-19 the citation or notice. The sufficiency or validity of the
26-20 citation or notice or the service of or return of the service of
26-21 the citation or notice is not affected by the fact that the sheriff
26-22 or constable makes his return on the citation or notice and returns
26-23 the citation or notice to the court before the period elapses for
26-24 which the citation or notice is required to be posted, even though
26-25 the return is made, and the citation or notice is returned to the
26-26 court, on the same day it is issued.
26-27 (i) Proof of service by publication, posting, mailing, or
27-1 otherwise in all cases requiring notice or citation shall be filed
27-2 before a hearing. Proof of service made by a sheriff or constable
27-3 shall be made by the return of service. Service made by a private
27-4 person shall be proved by the person's affidavit. Proof of service
27-5 by publication shall be made by an affidavit of the publisher or of
27-6 an employee of the publisher that shows the issue date of the
27-7 newspaper that carried the notice or citation and that has attached
27-8 to or embodied in the affidavit a copy of the notice or citation.
27-9 Proof of service by mail shall be made by the certificate of the
27-10 clerk, or the affidavit of the guardian or other person that makes
27-11 the service that states the fact and time of mailing. The return
27-12 receipt must be attached to the certificate, if a receipt has been
27-13 returned if service is made by registered or certified mail.
27-14 (j) At any time after an application is filed for the
27-15 purpose of commencing a guardianship proceeding, a person
27-16 interested in the estate or welfare of a ward or an incapacitated
27-17 person may file with the clerk a written request that the person be
27-18 notified of any or all specifically designated motions,
27-19 applications, or pleadings filed by any person, or by a person
27-20 specifically designated in the request. The person who makes the
27-21 request is responsible for the fees and costs associated with the
27-22 documents specified in the request. The clerk may require a
27-23 deposit to cover the estimated costs of furnishing the person with
27-24 the requested notice. The clerk by ordinary mail shall send to the
27-25 requesting person a copy of any document specified in the request.
27-26 A proceeding is not invalid if the clerk fails to comply with the
27-27 request under this subsection.
28-1 Sec. 633. NOTICE AND CITATION FOR APPLICATION OF
28-2 GUARDIANSHIP. (a) On the filing of an application for
28-3 guardianship, notice shall be issued and served as provided by this
28-4 section.
28-5 (b) The court clerk shall issue a notice stating that the
28-6 application for guardianship was filed, the name of the proposed
28-7 ward, and the name of the applicant. The notice must cite all
28-8 persons interested in the welfare of the proposed ward to appear at
28-9 the time and place stated in the notice if they wish to contest the
28-10 application.
28-11 (c) A copy of the notice shall be posted, and the sheriff or
28-12 other officer posting the notice shall return the original notice,
28-13 officially signed and marked in writing with the time and place of
28-14 posting.
28-15 (d) The sheriff or other officer posting the notice shall
28-16 personally serve a copy of the notice, with citation to appear and
28-17 answer the application for guardianship, to:
28-18 (1) the proposed ward, unless the proposed ward is a
28-19 missing person, or a parent with whom the minor resides if the
28-20 proposed ward is a minor who is 14 years of age or younger;
28-21 (2) the proposed ward's parents; and
28-22 (3) any conservator or person having control of the
28-23 care and welfare of the proposed ward.
28-24 (e) The court clerk, at the applicant's request, or the
28-25 applicant shall mail a copy of the notice by registered or
28-26 certified mail, return receipt requested, to the following persons
28-27 if their whereabouts are known or can be reasonably ascertained:
29-1 (1) if the proposed ward is a person 60 years of age
29-2 or older, to the spouse, all siblings, and all children of a
29-3 proposed ward;
29-4 (2) all other persons related within the first degree
29-5 by consanguinity or affinity to the proposed ward;
29-6 (3) any person living with the proposed ward in a
29-7 private residence;
29-8 (4) the administrator of a nursing home facility or
29-9 similar facility in which the proposed ward resides; and
29-10 (5) a person whom the applicant knows to hold a power
29-11 of attorney signed by the proposed ward.
29-12 (f) A person other than the proposed ward who is entitled to
29-13 receive notice or personal service of citation under Subsections
29-14 (d) and (e) of this section may, in person or by attorney ad litem,
29-15 by writing filed with the clerk, waive the receipt of notice or the
29-16 issuance and personal service of citation.
29-17 (g) The court may not act on an application for the creation
29-18 of a guardianship until the Monday following the expiration of the
29-19 10-day period beginning the date service of notice and citation has
29-20 been made as provided by this section.
29-21 Sec. 634. SERVICE ON ATTORNEY. If an attorney has entered
29-22 an appearance on record for a party in a guardianship proceeding, a
29-23 citation or notice required to be served on the party shall be
29-24 served on the attorney. Service on the attorney of record is in
29-25 lieu of service on the party for whom the attorney appears. Except
29-26 as provided by Section 632(f) of this code, an attorney ad litem
29-27 may not waive personal service of citation. A notice served on an
30-1 attorney under this section may be served by registered or
30-2 certified mail or by delivery to the attorney in person. A party
30-3 to the proceeding or the party's attorney of record, an appropriate
30-4 sheriff or constable, or another person who is competent to testify
30-5 may serve notice or citation to an attorney under this section. A
30-6 written statement by an attorney of record, the return of the
30-7 officer, or the affidavit of a person that shows service is prima
30-8 facie evidence of the fact of service.
30-9 Sec. 635. WAIVER OF NOTICE. A competent person who is
30-10 interested in a hearing in a guardianship proceeding, in person or
30-11 by attorney, may waive in writing notice of the hearing. A consul
30-12 or other representative of a foreign government, whose appearance
30-13 has been entered as provided by law on behalf of a person residing
30-14 in a foreign country, may waive notice on behalf of the person. A
30-15 person who submits to the jurisdiction of the court in a hearing is
30-16 deemed to have waived notice of the hearing.
30-17 Sec. 636. NOTICES TO VETERANS ADMINISTRATION BY GUARDIANS.
30-18 When an annual or other account of funds, or an application for the
30-19 expenditure of or investment of funds is filed by a guardian whose
30-20 ward is a beneficiary of the Veterans Administration, or when a
30-21 claim against the estate of a ward who is a beneficiary of the
30-22 Veterans Administration is filed, the court shall set a date for
30-23 the hearing of the account, application, petition, or claim to be
30-24 held not less than 20 days from the date of the filing of the
30-25 account, application, petition, or claim. The clerk of the court
30-26 in which the account, application, petition, or claim is filed
30-27 shall give notice of the hearing to the office of Veterans
31-1 Administration in whose territory the court is located of the
31-2 hearing by mailing to the office a certified copy of the account,
31-3 application, petition, or claim not less than 15 days before the
31-4 hearing date. An office of Veterans Administration, through its
31-5 attorney, may waive the service of notice and the time within which
31-6 a hearing may be had in those cases. The account, application,
31-7 petition, or claim shall be filed in duplicate, and the clerk of
31-8 the court is entitled to a fee of 25 cents, taxable against the
31-9 estate, for certifying the copy of the account, application,
31-10 petition, or claim. The clerk shall mail to the office of the
31-11 Veterans Administration the certified copy. If not filed in
31-12 duplicate, the clerk shall be entitled to an additional fee of 15
31-13 cents per 100 words for making a copy of the account, application,
31-14 petition, or claim. The additional copying costs shall be taxed
31-15 and collected from the guardian and may not be charged to the
31-16 ward's estate.
31-17 SUBPART E. TRIAL AND HEARING MATTERS
31-18 Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a
31-19 pleading in a guardianship matter or an order based on the pleading
31-20 based on a defect of form or substance in the pleading, unless the
31-21 defect has been timely objected to and called to the attention of
31-22 the court in which the proceeding was or is pending.
31-23 Sec. 642. STANDING TO COMMENCE OR CONTEST PROCEEDING. Any
31-24 person has the right to commence any guardianship proceeding or to
31-25 appear and contest any guardianship proceeding or the appointment
31-26 of a particular person as guardian.
31-27 Sec. 643. TRIAL BY JURY. A party in a contested
32-1 guardianship proceeding is entitled, on request, to a jury trial.
32-2 Sec. 644. HEARING BY SUBMISSION. (a) A court may consider
32-3 by submission a motion or application filed under this chapter
32-4 unless:
32-5 (1) the proceeding is contested;
32-6 (2) the motion or application is superseded by local
32-7 rules; or
32-8 (3) the proceeding is an application for the
32-9 appointment of a guardian.
32-10 (b) A motion or application that a court may consider under
32-11 submission must be accompanied by a notice of the filing of the
32-12 motion or application that contains the date the motion or
32-13 application is to be submitted to the court. The time for notice
32-14 provided under this subsection may not be less than the time
32-15 otherwise prescribed by law for notice of other motions or
32-16 applications filed with the court.
32-17 (c) Without court approval, a motion or application that a
32-18 court may consider under submission may not be submitted to the
32-19 court before the 10th day after the date the motion or application
32-20 was filed.
32-21 (d) A motion or application must be submitted to the court
32-22 for a ruling on the date of submission that is contained in the
32-23 notice of submission under Subsection (b) of this section or on a
32-24 later date that is approved by the court.
32-25 (e) Without court approval, a response to a motion or
32-26 application that a court may consider under submission must be in
32-27 writing and must be filed before the second business day before the
33-1 date of submission.
33-2 (f) On the date of submission or another date that is
33-3 approved by the court, the court shall schedule a hearing for a
33-4 motion or application that a court may consider under submission
33-5 only if a response to the motion or application is filed by a
33-6 person interested in the guardianship who:
33-7 (1) contests the relief sought in the motion or
33-8 application;
33-9 (2) requests to be present at the hearing; or
33-10 (3) requests oral argument on the person's exceptions
33-11 to the motion or application.
33-12 (g) The burden of proof at a hearing on a motion or
33-13 application that is being considered by the court on submission is
33-14 on the party who is seeking relief under the motion or application.
33-15 (h) The court may consider a person's failure to file a
33-16 response to a motion or application that may be considered on
33-17 submission as a representation that the person does not oppose the
33-18 motion or application.
33-19 (i) A person's request for oral argument is not a response
33-20 to a motion or application under this section.
33-21 (j) The court, on its own motion, may order oral argument on
33-22 a motion or application that may be considered by submission.
33-23 Sec. 645. GUARDIANS AD LITEM. (a) The judge may appoint a
33-24 guardian ad litem to represent the interests of an incapacitated
33-25 person in a guardianship proceeding.
33-26 (b) A guardian ad litem is entitled to reasonable
33-27 compensation for services in the amount set by the court to be
34-1 taxed as costs in the proceeding.
34-2 (c) A guardian ad litem is an officer of the court. The
34-3 guardian ad litem shall protect the incapacitated person in a
34-4 manner that will enable the court to determine what action will be
34-5 in the best interests of the incapacitated person.
34-6 Sec. 646. APPOINTMENT OF ATTORNEY AD LITEM AND INTERPRETER.
34-7 (a) In a proceeding under this chapter for the appointment of a
34-8 guardian for a person other than a missing person, the court shall
34-9 appoint an attorney ad litem to represent the interests of the
34-10 proposed ward. The attorney shall be supplied with copies of all
34-11 of the current records in the case and may have access to all of
34-12 the proposed ward's relevant medical, psychological, and
34-13 intellectual testing records.
34-14 (b) To be eligible for appointment as an attorney ad litem,
34-15 a person must be certified by the State Bar of Texas as having
34-16 successfully completed a course of study in guardianship law and
34-17 procedure sponsored by the state bar.
34-18 (c) For certification under Subsection (b) of this section,
34-19 the state bar may not require more than eight hours of credit.
34-20 (d) A certificate issued under Subsection (b) of this
34-21 section expires on the second anniversary of the date the
34-22 certificate was issued. A person whose certificate has expired
34-23 must obtain a new certificate to be eligible for appointment as an
34-24 attorney ad litem. The applicant is not required to again complete
34-25 the course of study required by Subsection (b) of this section
34-26 unless the state bar determines that the course has changed
34-27 substantially since the person last completed the course.
35-1 (e) Subsections (b)-(d) of this section do not apply to a
35-2 person who served as attorney ad litem in a guardianship proceeding
35-3 before September 1, 1993.
35-4 (f) At the time of the appointment of the attorney ad litem,
35-5 the court shall also appoint a language interpreter or a sign
35-6 interpreter if necessary to ensure effective communication between
35-7 the proposed ward and the attorney.
35-8 Sec. 647. DUTIES OF ATTORNEY AD LITEM. (a) An attorney ad
35-9 litem appointed under Section 646 of this code to represent a
35-10 proposed ward shall, within a reasonable time before the hearing,
35-11 interview the proposed ward. To the greatest extent possible, the
35-12 attorney shall discuss with the proposed ward the law and facts of
35-13 the case, the proposed ward's legal options regarding disposition
35-14 of the case, and the grounds on which guardianship is sought.
35-15 (b) Before the hearing, the attorney shall review the
35-16 application for guardianship, certificates of current physical,
35-17 medical, and intellectual examinations, and all of the proposed
35-18 ward's relevant medical, psychological, and intellectual testing
35-19 records. The attorney shall also interview supporting witnesses
35-20 and other witnesses who will testify at the hearing.
35-21 Sec. 648. COURT VISITOR PROGRAM. (a) Each statutory
35-22 probate court shall operate a court visitor program to assess the
35-23 conditions of wards and proposed wards. Another court that has
35-24 jurisdiction over a guardianship proceeding may operate a court
35-25 visitor program in accordance with the population needs and
35-26 financial abilities of the jurisdiction. A court that operates a
35-27 court visitor program shall use persons willing to serve without
36-1 compensation to the greatest extent possible.
36-2 (b) On request by any interested person, including a ward or
36-3 proposed ward, or on its own motion, and at any time before the
36-4 appointment of a guardian or during the pendency of a guardianship
36-5 of the person or estate, a court may appoint a court visitor to
36-6 evaluate the ward or proposed ward and provide a written report
36-7 that substantially complies with Subsection (c) of this section.
36-8 (c) A court visitor's report must include:
36-9 (1) a description of the nature and degree of capacity
36-10 and incapacity of the ward or proposed ward, including the medical
36-11 history of the ward or proposed ward, if reasonably available and
36-12 not waived by the court;
36-13 (2) a medical prognosis and a list of the treating
36-14 physicians of the ward or proposed ward, when appropriate;
36-15 (3) a description of the living conditions and
36-16 circumstances of the ward or proposed ward;
36-17 (4) a description of the social, intellectual,
36-18 physical, and educational condition of the ward or proposed ward;
36-19 (5) a statement that the court visitor has personally
36-20 visited or observed the ward or proposed ward;
36-21 (6) a statement of the date of the most recent visit
36-22 by the guardian, if one has been appointed;
36-23 (7) a recommendation as to any modifications needed in
36-24 the guardianship or proposed guardianship, including removal or
36-25 denial of the guardianship; and
36-26 (8) any other information required by the court.
36-27 (d) The court visitor shall file the report not later than
37-1 the 14th day after the date of the evaluation conducted by the
37-2 court visitor, and the court visitor making the report must swear,
37-3 under penalty of perjury, to its accuracy to the best of the court
37-4 visitor's knowledge and belief.
37-5 (e) A court visitor who has not expressed a willingness to
37-6 serve without compensation is entitled to reasonable compensation
37-7 for services in an amount set by the court and to be taxed as costs
37-8 in the proceeding.
37-9 Sec. 649. EVIDENCE. In a guardianship proceeding, the rules
37-10 relating to witnesses and evidence that govern in the district
37-11 court apply as far as practicable. If there is no opposing party
37-12 or attorney of record on whom to serve notice and copies of
37-13 interrogatories, service may be had by posting notice of the
37-14 intention to take depositions for a period of 10 days as provided
37-15 by this chapter in the provisions governing a posting of notice.
37-16 When notice by posting under this section is filed with the clerk,
37-17 a copy of the interrogatories shall also be filed. At the
37-18 expiration of the 10-day period, commission may issue for taking
37-19 the depositions and the judge may file cross-interrogatories if no
37-20 person appears.
37-21 Sec. 650. DECREES AND SIGNING OF MINUTES. A decision,
37-22 order, decree, or judgment of the court in a guardianship matter
37-23 must be rendered in open court, except in a case in which it is
37-24 otherwise expressly provided. The judge shall approve and sign the
37-25 guardianship minutes on the first day of each month. If the first
37-26 day of the month falls on a Saturday, Sunday, or legal holiday, the
37-27 judge's approval shall be entered on the preceding or succeeding
38-1 day.
38-2 Sec. 651. ENFORCEMENT OF ORDERS. The judge may enforce
38-3 obedience to an order entered against a guardian by attachment and
38-4 imprisonment. An imprisonment of a guardian may not exceed three
38-5 days for any one offense, unless expressly provided otherwise in
38-6 this chapter.
38-7 SUBPART F. POST-TRIAL MATTERS
38-8 Sec. 653. EXECUTION. An execution in a guardianship matter
38-9 shall be directed "To any sheriff or any constable within the State
38-10 of Texas," made returnable in 60 days, and attested and signed by
38-11 the clerk officially under the seal of the court. A proceeding
38-12 under an execution in a guardianship matter is governed so far as
38-13 applicable by the laws regulating a proceeding under an execution
38-14 issued from the district court. An execution directed to the
38-15 sheriff or a constable of a specific county in this state may not
38-16 be held defective if the execution was properly executed within the
38-17 county by the officer to whom the direction for execution was
38-18 given.
38-19 Sec. 654. ATTACHMENT FOR PROPERTY. When a complaint in
38-20 writing and under oath that the guardian is about to remove the
38-21 estate or any part of the estate beyond the limits of the state is
38-22 made to the judge by a person interested in the estate of a minor
38-23 or other incapacitated person, the judge may order a writ to issue,
38-24 directed "To any sheriff or any constable within the State of
38-25 Texas," commanding the sheriff or constable to seize the estate or
38-26 any part of the estate and to hold the estate subject to further
38-27 court order. The judge may not issue a writ unless the complainant
39-1 gives a bond, in the sum the judge requires, payable to the
39-2 guardian of the estate and conditioned on payment of all damages
39-3 and costs that shall be recovered for a wrongful suit out of the
39-4 writ. A writ of attachment directed to the sheriff or a constable
39-5 of a specific county in this state is not defective if the writ was
39-6 properly executed within the county by the officer to whom the
39-7 direction to seize the estate was given.
39-8 Sec. 655. GUARDIAN TO SERVE PENDING APPEAL OF APPOINTMENT.
39-9 Pending an appeal from an order or judgment appointing a guardian,
39-10 an appointee shall continue to act as guardian and shall continue
39-11 the prosecution of a pending suit in favor of the guardianship.
39-12 Sec. 656. APPEAL BOND OF GUARDIAN. When a guardian appeals,
39-13 a bond is not required, unless the appeal personally concerns the
39-14 guardian, in which case the guardian must give the bond.
39-15 Sec. 657. BILL OF REVIEW. A person interested, including a
39-16 ward, by bill of review filed in the court in which a guardianship
39-17 proceeding took place, may have a decision, order, or judgment
39-18 rendered by the court, revised and corrected if an error is shown
39-19 on the decision, order, or judgment. A process or action under the
39-20 decision, order, or judgment is not stayed except by writ of
39-21 injunction. A bill of review may not be filed after two years have
39-22 elapsed from the date of the decision, order, or judgment. A
39-23 person with a disability has two years after the removal of the
39-24 person's respective disability to apply for a bill of review.
39-25 SUBPART G. LETTERS OF GUARDIANSHIP
39-26 Sec. 659. ISSUANCE OF LETTERS OF GUARDIANSHIP. (a) When a
39-27 person who is appointed guardian has qualified by taking the oath
40-1 and giving any bond required by law, the clerk shall issue to the
40-2 guardian a certificate under seal, stating the fact of the
40-3 appointment, of the qualification, and the date of the appointment
40-4 and qualification. The certificate issued by the clerk constitutes
40-5 letters of guardianship. The order of the court appointing the
40-6 guardian is effective on the issuance of letters of guardianship.
40-7 The order is evidence of the authority of the guardian to act
40-8 within the scope of the powers and duties set forth in the order.
40-9 (b) Letters of guardianship expire one year and 90 days
40-10 after the date of issuance unless renewed.
40-11 (c) The clerk shall renew letters of guardianship on the
40-12 receipt and approval by the court of the guardian's annual
40-13 accounting. If the guardian's annual accounting is disapproved,
40-14 the clerk may not issue further letters of guardianship to that
40-15 guardian relating to the ward or the ward's estate unless ordered
40-16 by the court.
40-17 Sec. 660. LETTERS OR CERTIFICATE MADE EVIDENCE. Letters of
40-18 guardianship or a certificate under seal of the clerk of the court
40-19 that granted the letters issued under Section 659 of this code is
40-20 sufficient evidence of the appointment and qualification of the
40-21 guardian and of the date of qualification.
40-22 Sec. 661. ISSUANCE OF NEW LETTERS. When letters of
40-23 guardianship have been destroyed or lost, the clerk shall issue new
40-24 letters that have the same force and effect as the original
40-25 letters. The clerk shall also issue any number of letters on
40-26 request of the person who holds the letters.
40-27 Sec. 662. RIGHTS OF THIRD PERSONS DEALING WITH GUARDIAN.
41-1 When a guardian who has qualified performs any act as guardian that
41-2 is in conformity with the guardian's authority and the law, the
41-3 guardian's act continues to be valid for all intents and purposes
41-4 in regard to the rights of an innocent purchaser of the property of
41-5 the guardianship estate who purchased the property from the
41-6 guardian for a valuable consideration, in good faith, and without
41-7 notice of any illegality in the title to the property, even if the
41-8 guardian's act or the authority under which the act was performed
41-9 may later be set aside, annulled, or declared invalid.
41-10 Sec. 663. VALIDATION OF CERTAIN LETTERS OF GUARDIANSHIP.
41-11 All presently existing letters of guardianship issued to a
41-12 nonresident guardian, with or without the procedure provided in
41-13 this subpart, in whole or in part, and with or without a notice or
41-14 citation required of resident guardians, are validated as of each
41-15 letter's date, insofar as the absence of the procedure, notice, or
41-16 citations is concerned. An otherwise valid conveyance, mineral
41-17 lease, or other act of a nonresident guardian qualified and acting
41-18 in connection with the letters of guardianship under supporting
41-19 orders of a county or probate court of this state are validated.
41-20 This section does not apply to any letters, conveyance, lease, or
41-21 other act of a nonresident guardian under this section if the
41-22 absence of the procedure, notice, or citation involving the
41-23 letters, conveyance, lease, or other act of the nonresident
41-24 guardian is an issue in a lawsuit pending in this state on
41-25 September 1, 1993.
41-26 SUBPART H. COMPENSATION, EXPENSES, AND COURT COSTS
41-27 Sec. 665. COMPENSATION OF GUARDIAN. (a) The court may
42-1 authorize compensation for a guardian serving as guardian of the
42-2 person alone from available funds of the ward's estate. The court
42-3 shall set the compensation in an amount not exceeding _____ percent
42-4 of the ward's income or a flat fee of $_____ a _____.
42-5 (b) The guardian of the estate is entitled to a fee of five
42-6 percent of the gross income of the ward's estate and five percent
42-7 of all money paid out of the estate on a court finding that the
42-8 guardian has taken care of and managed the estate in compliance
42-9 with the standards of this chapter. In this section, the term
42-10 "money paid out" does not include any money loaned, invested, or
42-11 paid over on the settlement of the guardianship. If the fee is an
42-12 unreasonably low amount, the court may authorize reasonable
42-13 compensation to a guardian for services as guardian of the estate.
42-14 The court, on application of an interested person or on its own
42-15 motion, may deny a fee authorized under this section in whole, or
42-16 in part, if:
42-17 (1) the court finds that the guardian has not
42-18 adequately performed the duties required of the guardian under this
42-19 chapter; or
42-20 (2) the guardian has been removed for cause.
42-21 Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be
42-22 reimbursed from the guardianship estate for all necessary and
42-23 reasonable expenses incurred in performing any duty as a guardian.
42-24 Sec. 667. EXPENSE ACCOUNT. All expense charges shall be:
42-25 (1) in writing, showing specifically each item of
42-26 expense and the date of the expense;
42-27 (2) verified by affidavit of the guardian;
43-1 (3) filed with the clerk and entered on the claim
43-2 docket; and
43-3 (4) acted on by the court in the same manner as other
43-4 claims against the guardianship estate.
43-5 Sec. 668. COSTS ADJUDGED AGAINST GUARDIAN. When costs are
43-6 incurred because a guardian neglects to perform a required duty or
43-7 if a guardian is removed for cause, the guardian and the sureties
43-8 on the guardian's bond are liable for:
43-9 (1) costs of removal and other additional costs
43-10 incurred that are not authorized expenditures under this chapter;
43-11 and
43-12 (2) reasonable attorney's fees incurred in removing
43-13 the guardian or in obtaining compliance regarding any statutory
43-14 duty the guardian has neglected.
43-15 Sec. 669. COSTS AGAINST GUARDIANSHIP. In a guardianship
43-16 matter, the cost of the proceeding, including the cost of the
43-17 guardian ad litem or court visitor, shall be paid out of the
43-18 guardianship estate, or, if the estate is insufficient to pay for
43-19 the cost of the proceeding, the cost of the proceeding shall be
43-20 paid out of the county treasury, and the judgment of the court
43-21 shall be issued accordingly.
43-22 SUBPART I. DUTY AND RESPONSIBILITY OF COURT
43-23 Sec. 671. JUDGE'S DUTY. (a) The court shall use reasonable
43-24 diligence to determine whether a guardian is performing all of the
43-25 duties required of the guardian that pertain to the guardian's
43-26 ward.
43-27 (b) The judge may annually examine the well-being of each
44-1 ward of the court and the solvency of the bonds of the guardians of
44-2 the estates.
44-3 (c) If after examining the solvency of a guardian's bond
44-4 under this section a judge determines that the guardian's bond is
44-5 not sufficient to protect the ward or the ward's estate, the judge
44-6 shall require the guardian to execute a new bond.
44-7 (d) The judge shall notify the guardian and the sureties on
44-8 the bond as provided by law. If damage or loss results to a
44-9 guardianship or ward because of gross neglect of the judge to use
44-10 reasonable diligence in the performance of the judge's duty under
44-11 this section, the judge shall be liable on the judge's bond to
44-12 those damaged by the judge's neglect.
44-13 Sec. 672. ANNUAL DETERMINATION AS TO WHETHER GUARDIANSHIP
44-14 SHOULD BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in
44-15 which a guardianship proceeding is pending shall review annually
44-16 each guardianship to determine whether the guardianship should be
44-17 continued, modified, or terminated.
44-18 (b) In reviewing a guardianship as provided by Subsection
44-19 (a) of this section, a statutory probate court shall:
44-20 (1) review a report prepared by a court visitor under
44-21 Section 648 of this code; or
44-22 (2) conduct a hearing if necessary.
44-23 (c) In reviewing a guardianship as provided by Subsection
44-24 (a) of this section, a court that is not a statutory probate court
44-25 may use any appropriate method determined by the court according to
44-26 the court's caseload and the resources available to the court.
44-27 (d) A determination under this section must be in writing
45-1 and filed with the clerk.
45-2 SUBPART J. LIABILITY OF GUARDIAN FOR CONDUCT OF WARD
45-3 Sec. 673. LIABILITY. A person is not liable to a third
45-4 person solely because the person has been appointed guardian of a
45-5 ward under this chapter.
45-6 PART 3. APPOINTMENT AND
45-7 QUALIFICATION OF
45-8 GUARDIANS
45-9 SUBPART A. APPOINTMENT
45-10 Sec. 675. RIGHTS AND POWERS RETAINED BY WARD. An
45-11 incapacitated person for whom a guardian is appointed retains all
45-12 legal and civil rights and powers except those designated by court
45-13 order as legal disabilities by virtue of having been specifically
45-14 granted to the guardian.
45-15 Sec. 676. GUARDIANS OF MINORS. (a) Except as provided by
45-16 Section 670 of this code, the selection of a guardian for a minor
45-17 is governed by this section.
45-18 (b) If the parents live together, both parents are the
45-19 natural guardians of the person of the minor children by the
45-20 marriage, and one of the parents is entitled to be appointed
45-21 guardian of the children's estates. If the parents disagree as to
45-22 which parent should be appointed, the court shall make the
45-23 appointment on the basis of which parent is better qualified to
45-24 serve in that capacity. If one parent is dead, the survivor is the
45-25 natural guardian of the person of the minor children and is
45-26 entitled to be appointed guardian of their estates. The rights of
45-27 parents who do not live together are equal, and the guardianship of
46-1 their minor children shall be assigned to one or the other,
46-2 considering only the best interests of the children.
46-3 (c) In appointing a guardian for a minor orphan:
46-4 (1) if the last surviving parent did not appoint a
46-5 guardian, the nearest ascendant in the direct line of the minor is
46-6 entitled to guardianship of both the person and the estate of the
46-7 minor;
46-8 (2) if more than one ascendant exists in the same
46-9 degree in the direct line, one ascendant shall be appointed,
46-10 according to circumstances and considering the best interests of
46-11 the minor;
46-12 (3) if the minor has no ascendant in the direct line,
46-13 the nearest of kin shall be appointed, and if there are two or more
46-14 persons in the same degree of kinship, one shall be appointed,
46-15 according to circumstances and considering the best interests of
46-16 the minor; and
46-17 (4) if no relative of the minor is eligible to be
46-18 guardian, or if no eligible person applies to be guardian, the
46-19 court shall appoint a qualified person as guardian.
46-20 (d) The surviving parent of a minor may by will or written
46-21 declaration appoint any eligible person to be guardian of the
46-22 person of the parent's minor children after the death of the
46-23 parent. On compliance with this code, an eligible person is also
46-24 entitled to be appointed guardian of the children's estates after
46-25 the death of the parent.
46-26 Sec. 677. GUARDIANS OF PERSONS OTHER THAN MINORS. The court
46-27 shall appoint a guardian for a person other than a minor according
47-1 to the circumstances and considering the best interests of the
47-2 ward. If the court finds that two or more eligible persons are
47-3 equally entitled to be appointed guardian:
47-4 (1) the ward's spouse is entitled to the guardianship
47-5 in preference to any other person if the spouse is one of the
47-6 eligible persons;
47-7 (2) the eligible person nearest of kin to the ward is
47-8 entitled to the guardianship if the ward's spouse is not one of the
47-9 eligible persons; or
47-10 (3) the court shall appoint the eligible person who is
47-11 best qualified to serve as guardian if:
47-12 (A) the persons entitled to serve under
47-13 Subdivisions (1) and (2) of this section refuse to serve;
47-14 (B) two or more persons entitled to serve under
47-15 Subdivision (2) of this section are related in the same degree of
47-16 kinship to the ward; or
47-17 (C) neither the ward's spouse or any person
47-18 related to the ward is an eligible person.
47-19 Sec. 678. PRESUMPTION CONCERNING BEST INTEREST. It is
47-20 presumed not to be in the best interests of a ward to appoint a
47-21 person as guardian of the ward if the person has been finally
47-22 convicted of any sexual offense, sexual assault, aggravated
47-23 assault, aggravated sexual assault, injury to a child, abandoning
47-24 or endangering a child, or incest.
47-25 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES. (a)
47-26 A person other than an incapacitated person may designate by a
47-27 written declaration persons to serve as guardian of the person of
48-1 the declarant or the estate of the declarant if the declarant
48-2 becomes incapacitated. The declaration must be attested to by at
48-3 least two credible witnesses 14 years of age or older who are not
48-4 named as guardian or alternate guardian in the declaration.
48-5 (b) A declarant may, in the declaration, disqualify named
48-6 persons from serving as guardian of the declarant's person or
48-7 estate, and the persons named may not be appointed guardian under
48-8 any circumstances.
48-9 (c) The declaration must have attached a self-proving
48-10 affidavit signed by the declarant and the witnesses attesting to
48-11 the competence of the declarant and the execution of the
48-12 declaration. A properly executed and witnessed declaration and
48-13 affidavit are prima facie evidence that the declarant was competent
48-14 at the time the declarant executed the declaration and that the
48-15 guardian named in the declaration would serve the best interests of
48-16 the ward.
48-17 (d) The declaration and affidavit may be filed with the
48-18 court at any time after the application for appointment of a
48-19 guardian is filed and before a guardian is appointed. Unless the
48-20 court finds that the person designated in the declaration to serve
48-21 as guardian is disqualified or would not serve the best interests
48-22 of the ward, the court shall appoint the person as guardian in
48-23 preference to those otherwise entitled to serve as guardian under
48-24 this code. If the designated guardian does not qualify, is dead,
48-25 refuses to serve, resigns, or dies after being appointed guardian,
48-26 or is otherwise unavailable to serve as guardian, the court shall
48-27 appoint the next eligible designated alternate guardian named in
49-1 the declaration. If the guardian and all alternate guardians do
49-2 not qualify, are dead, refuse to serve, or later die or resign, the
49-3 court shall appoint another person to serve as otherwise provided
49-4 by this code.
49-5 (e) The declarant may revoke a declaration in any manner
49-6 provided for the revocation of a will under Section 63 of this
49-7 code, including the subsequent reexecution of the declaration in
49-8 the manner required for the original declaration.
49-9 (f) If a declarant designates the declarant's spouse to
49-10 serve as guardian under this section, and the declarant is
49-11 subsequently divorced from that spouse before a guardian is
49-12 appointed, the provision of the declaration designating the spouse
49-13 has no effect.
49-14 (g) A declaration and affidavit may be in any form adequate
49-15 to clearly indicate the declarant's intention to designate a
49-16 guardian. The following forms may, but need not, be used:
49-17 DECLARATION OF GUARDIAN IN THE EVENT OF
49-18 LATER INCAPACITY OR NEED OF GUARDIAN
49-19 I, _____________, make this Declaration of Guardian, to
49-20 operate if the need for a guardian for me later arises.
49-21 1. I designate ____________ to serve as guardian of my
49-22 person, ____________ as first alternate guardian of my person,
49-23 ________________ as second alternate guardian of my person, and
49-24 ____________ as third alternate guardian of my person.
49-25 2. I designate ____________ to serve as guardian of my
49-26 estate, ____________ as first alternate guardian of my estate,
49-27 ____________ as second alternate guardian of my estate, and
50-1 ____________ as third alternate guardian of my estate.
50-2 3. If any guardian or alternate guardian dies, does not
50-3 qualify, or resigns, the next named alternate guardian becomes my
50-4 guardian.
50-5 4. I expressly disqualify the following persons from serving
50-6 as guardian of my person: ____________, ____________, and
50-7 ____________.
50-8 5. I expressly disqualify the following persons from serving
50-9 as guardian of my estate: ____________, ____________, and
50-10 ____________.
50-11 Signed this ____ day of __________, 19__.
50-12 ___________________
50-13 Declarant
50-14 ___________________ ___________________
50-15 Witness Witness
50-16 SELF-PROVING AFFIDAVIT
50-17 Before me, the undersigned authority, on this date personally
50-18 appeared the declarant, and ____________ and ____________ as
50-19 witnesses, and all being duly sworn, the declarant said that the
50-20 above instrument was his or her Declaration of Guardian and that
50-21 the declarant had made and executed it for the purposes expressed
50-22 in the declaration. The witnesses declared to me that they are
50-23 each 14 years of age or older, that they saw the declarant sign the
50-24 declaration, that they signed the declaration as witnesses, and
50-25 that the declarant appeared to them to be of sound mind.
50-26 ___________________
50-27 Declarant
51-1 ___________________ ____________________
51-2 Affiant Affiant
51-3 Subscribed and sworn to before me by the above named
51-4 declarant and affiants on this ____ day of __________, 19__.
51-5 ________________________
51-6 Notary Public in and for
51-7 the State of Texas
51-8 My Commission expires:
51-9 ________________________
51-10 Sec. 680. SELECTION OF GUARDIAN BY MINOR. (a) When an
51-11 application is filed for the guardianship of the person or estate,
51-12 or both, of a minor at least 14 years of age, the minor, subject to
51-13 the court's approval, may choose the guardian by writing filed with
51-14 the clerk.
51-15 (b) A minor at least 14 years of age may select another
51-16 guardian of either the minor's person or estate, or both, if the
51-17 minor has a guardian appointed by the court or the minor has a
51-18 guardian appointed by will or written declaration of the parent of
51-19 the minor and that guardian dies, resigns, or is removed from
51-20 guardianship. If the court is satisfied that the person selected
51-21 is suitable and competent, it shall make the appointment and revoke
51-22 the letters of guardianship of the former guardian. The minor
51-23 shall make the selection by filing an application in open court in
51-24 person or by attorney.
51-25 Sec. 681. PERSONS INELIGIBLE TO BE GUARDIANS. A person may
51-26 not be appointed guardian if the person is:
51-27 (1) a minor;
52-1 (2) a person whose conduct is notoriously bad;
52-2 (3) an incapacitated person;
52-3 (4) a person who is a party or whose parent is a party
52-4 to a lawsuit concerning or affecting the welfare of the proposed
52-5 ward;
52-6 (5) a person indebted to the proposed ward unless the
52-7 person pays the debt before appointment;
52-8 (6) a person asserting a claim adverse to the proposed
52-9 ward or the proposed ward's property, real or personal;
52-10 (7) a person who, because of inexperience, lack of
52-11 education, or other good reason, is incapable of properly and
52-12 prudently managing and controlling the ward or the ward's estate;
52-13 (8) a person, institution, or corporation found
52-14 unsuitable by the court; or
52-15 (9) a person disqualified in a declaration made under
52-16 Section 679 of this code.
52-17 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
52-18 proceeding for the appointment of a guardian by filing a written
52-19 application in a court having jurisdiction and venue. The
52-20 application must be sworn to by the applicant and state:
52-21 (1) the name, sex, date of birth, and address of the
52-22 proposed ward;
52-23 (2) the name, relationship, and address of the person
52-24 the applicant desires to have appointed as guardian;
52-25 (3) the social security number of the proposed ward
52-26 and of the person the applicant desires to have appointed as
52-27 guardian;
53-1 (4) whether guardianship of the person or estate, or
53-2 both, is sought;
53-3 (5) the nature and degree of the alleged incapacity,
53-4 the specific areas of protection and assistance requested, and the
53-5 limitation of rights requested to be included in the court's order
53-6 of appointment;
53-7 (6) the facts requiring that a guardian be appointed
53-8 and the interest of the applicant in the appointment;
53-9 (7) the nature and description of any guardianship of
53-10 any kind existing for the proposed ward in this or any other state;
53-11 (8) the name and address of any person or institution
53-12 having the care and custody of the proposed ward;
53-13 (9) the approximate value and description of the
53-14 proposed ward's property, including any compensation, pension,
53-15 insurance, or allowance to which the proposed ward may be entitled;
53-16 (10) the requested term, if known, of the
53-17 guardianship;
53-18 (11) the name and address of any person whom the
53-19 applicant knows to hold a power of attorney signed by the proposed
53-20 ward and a description of the type of power of attorney;
53-21 (12) if the proposed ward is a minor, the names of the
53-22 parents and next of kin of the proposed ward and whether either or
53-23 both of the parents are deceased;
53-24 (13) if the proposed ward is a minor, whether the
53-25 minor was the subject of a legal or conservatorship proceeding
53-26 within the preceding two-year period and, if so, the court
53-27 involved, the nature of the proceeding, and the final disposition,
54-1 if any, of the proceeding;
54-2 (14) if the proposed ward is 60 years of age or older,
54-3 the names and addresses, to the best of the applicant's knowledge,
54-4 of the proposed ward's spouse, siblings, and children, or, if there
54-5 is no spouse, sibling, or child, the names and addresses of the
54-6 proposed ward's next of kin;
54-7 (15) if the proposed ward is a missing person:
54-8 (A) the last known residence of the missing
54-9 person;
54-10 (B) the name of the executive department of the
54-11 United States reporting the proposed ward as a missing person, the
54-12 date of the report, and the last known whereabouts of the missing
54-13 person; and
54-14 (C) the names and addresses of the missing
54-15 person's spouse, children, and parents, or, if there is no spouse,
54-16 child, or parent, the names and addresses of the missing person's
54-17 next of kin;
54-18 (16) facts showing that the court has venue over the
54-19 proceeding; and
54-20 (17) if applicable, that the person whom the applicant
54-21 desires to have appointed as a guardian is a private professional
54-22 guardian who has complied with the requirements of Section 126 of
54-23 this code.
54-24 Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
54-25 If a court has probable cause to believe that a person domiciled or
54-26 found in the county in which the court is located is an
54-27 incapacitated person, and the person does not have a guardian in
55-1 this state, the court shall appoint an attorney ad litem to
55-2 investigate and file an application for the appointment of a
55-3 guardian of the person or estate, or both, of the person believed
55-4 to be incapacitated.
55-5 Sec. 684. FINDINGS REQUIRED. (a) Before appointing a
55-6 guardian, the court must find that:
55-7 (1) the proposed ward is an incapacitated person;
55-8 (2) the court has venue of the case;
55-9 (3) the person to be appointed guardian is eligible to
55-10 act as guardian and is entitled to appointment, or, if no eligible
55-11 person entitled to appointment applies, the person appointed is a
55-12 proper person to act as guardian;
55-13 (4) the rights of persons or property will be
55-14 protected by the appointment of a guardian;
55-15 (5) if a guardian is appointed for a minor, the
55-16 guardianship is not created for the primary purpose of enabling the
55-17 minor to establish residency for enrollment in a school or school
55-18 district for which the minor is not otherwise eligible for
55-19 enrollment; and
55-20 (6) if the guardian is appointed for a missing person,
55-21 the person was reported missing by an executive department of the
55-22 United States at least six months earlier than the date of the
55-23 filing of the application and currently is missing.
55-24 (b) The court may not grant an application to create a
55-25 guardianship unless the applicant proves each element required by
55-26 this code. A determination of incapacity of an adult proposed
55-27 ward, other than a missing person or a person who must have a
56-1 guardian appointed to receive funds due the person from any
56-2 governmental source, must be evidenced by recurring acts or
56-3 occurrences within the preceding six-month period and not by
56-4 isolated instances of negligence or bad judgment.
56-5 (c) A court may not appoint a guardian of the estate of a
56-6 minor when a payment of claims is made under Section 887 of this
56-7 code.
56-8 (d) A certificate of the executive head or a representative
56-9 of the bureau, department, or agency of the government, to the
56-10 effect that the appointment of a guardian is a condition precedent
56-11 to the payment of any funds due the proposed ward from that
56-12 governmental entity, is prima facie evidence of the necessity for
56-13 the appointment of a guardian.
56-14 Sec. 685. HEARING FOR APPOINTMENT OF GUARDIAN; RIGHT TO JURY
56-15 TRIAL. (a) A proposed ward other than a missing person must be
56-16 present at a hearing to appoint a guardian unless the court, on the
56-17 record, determines that a personal appearance is not in the
56-18 person's best interests. The court may close the hearing if the
56-19 proposed ward or the proposed ward's counsel requests a closed
56-20 hearing.
56-21 (b) The proposed ward is entitled, on request, to a jury
56-22 trial.
56-23 (c) At the hearing, the court shall:
56-24 (1) inquire into the ability of any allegedly
56-25 incapacitated adult person to feed, clothe, and shelter himself or
56-26 herself, to care for the individual's own physical health, and to
56-27 manage the individual's property or financial affairs;
57-1 (2) ascertain the age of any proposed ward who is a
57-2 minor;
57-3 (3) inquire into the governmental reports for any
57-4 missing person or person who must have a guardian appointed to
57-5 receive funds due the person from any governmental source; and
57-6 (4) inquire into the qualifications, abilities, and
57-7 capabilities of the person seeking to be appointed guardian.
57-8 Sec. 686. USE OF RECORDS IN HEARING TO APPOINT GUARDIAN.
57-9 (a) Before a hearing may be held for the appointment of a
57-10 guardian, current and relevant medical, psychological, and
57-11 intellectual testing records of the proposed ward must be filed
57-12 with the court unless:
57-13 (1) the proposed ward is a minor, a missing person, or
57-14 a person who must have a guardian appointed to receive funds due
57-15 the person from any governmental source; or
57-16 (2) the court makes a finding on the record that no
57-17 current or relevant records exist and examining the proposed ward
57-18 for the purpose of creating the records is impractical.
57-19 (b) Current medical, psychological, and intellectual testing
57-20 records are a sufficient basis for a determination of guardianship.
57-21 (c) Medical, psychological, and intellectual testing records
57-22 filed with the application must be based on examinations conducted
57-23 during the 90-day period before the date the application is filed.
57-24 (d) The findings and recommendations contained in the
57-25 medical, psychological, and intellectual testing records are not
57-26 binding on the court.
57-27 Sec. 687. EXAMINATIONS AND REPORTS. (a) If the medical,
58-1 psychological, and intellectual testing records of the proposed
58-2 ward are not filed with the application for guardianship, the court
58-3 shall appoint the necessary physicians and mental health
58-4 professionals to examine the person and file all necessary reports
58-5 with the court.
58-6 (b) A physician appointed by the court shall file with the
58-7 court a report that:
58-8 (1) describes the nature and degree of incapacity,
58-9 including the medical history if reasonably available;
58-10 (2) provides a medical prognosis specifying the
58-11 estimated severity of the incapacity;
58-12 (3) states how or in what manner the proposed ward's
58-13 ability to make or communicate responsible decisions concerning
58-14 himself or herself is affected by the person's physical or mental
58-15 health;
58-16 (4) states whether any current medication affects the
58-17 demeanor of the proposed ward or the proposed ward's ability to
58-18 participate fully in a court proceeding;
58-19 (5) describes the precise physical and mental
58-20 conditions underlying a diagnosis of senility, if applicable; and
58-21 (6) includes any other information required by the
58-22 court.
58-23 (c) If the basis of the proposed ward's alleged incapacity
58-24 is mental retardation, the proposed ward shall be examined at a
58-25 facility approved by the Texas Department of Mental Health and
58-26 Mental Retardation to perform the examination, unless there is
58-27 written documentation filed with the court that shows the proposed
59-1 ward has been examined according to the rules adopted by the
59-2 department at an approved facility not earlier than six months
59-3 before the date of a hearing to appoint a guardian for the proposed
59-4 ward. The facility personnel shall conduct the examination
59-5 according to the rules adopted by the department and shall submit
59-6 written findings and recommendations to the court.
59-7 Sec. 688. PAYMENT FOR PROFESSIONAL SERVICES. The court
59-8 shall order the payment of a fee set by the court as compensation
59-9 to the attorneys, mental health professionals, and interpreters
59-10 appointed under Sections 646 and 687 of this code, as applicable,
59-11 to be taxed as costs in the case. If after examining the proposed
59-12 ward's assets the court determines the proposed ward is unable to
59-13 pay for services provided by an attorney, a mental health
59-14 professional, or an interpreter appointed under Sections 646 and
59-15 687 of this code, as applicable, the county is responsible for the
59-16 cost of those services.
59-17 Sec. 689. PREFERENCE OF WARD. Before appointing a guardian,
59-18 the court shall make a reasonable effort to question the
59-19 incapacitated person concerning the person's preference of the
59-20 person to be appointed guardian and, to the extent not inconsistent
59-21 with other provisions of this chapter, shall give due consideration
59-22 to the preference indicated by the incapacitated person.
59-23 Sec. 690. ONLY ONE PERSON APPOINTED GUARDIAN. Only one
59-24 person may be appointed as guardian of the person or estate, but
59-25 one person may be appointed guardian of the person and another of
59-26 the estate, if it is to the advantage of the ward. Nothing in this
59-27 section prohibits the joint appointment of a husband and wife, or
60-1 of coguardians appointed under the laws of a jurisdiction other
60-2 than this state.
60-3 Sec. 691. AGENCY AS LAST RESORT. Except as a last resort,
60-4 the court may not appoint as guardian the Texas Department of
60-5 Mental Health and Mental Retardation, the Texas Department of Human
60-6 Services, a community mental health and mental retardation center,
60-7 or any other agency, public or private, that is directly providing
60-8 services to the incapacitated person.
60-9 Sec. 692. ORDER APPOINTING GUARDIAN. The order of the court
60-10 appointing a guardian must specify:
60-11 (1) the name of the person appointed;
60-12 (2) the name of the ward;
60-13 (3) whether the guardian is of the person or the
60-14 estate, or of both, of the ward;
60-15 (4) the amount of any bond required;
60-16 (5) if it is a guardianship of the estate and the
60-17 court deems an appraisal is necessary, one or more but not more
60-18 than three disinterested persons to appraise the estate and to
60-19 return the appraisement to the court; and
60-20 (6) that the clerk will issue letters of guardianship
60-21 to the person appointed when the person has qualified according to
60-22 law.
60-23 Sec. 693. ORDER OF COURT. (a) If it is found that an adult
60-24 person possesses the capacity to care for himself or herself and to
60-25 manage the individual's property as would a reasonably prudent
60-26 person, the court shall dismiss the application for guardianship.
60-27 (b) If it is found that the proposed ward is totally without
61-1 capacity as provided by this code to care for himself or herself
61-2 and to manage the individual's property, the court shall include
61-3 that determination as a finding of fact in its final order in the
61-4 proceeding, and the court may appoint a guardian of the
61-5 individual's person or estate, or both, with full authority over
61-6 the incapacitated person except as provided by law.
61-7 (c) If it is found that the person lacks the capacity to do
61-8 some, but not all, of the tasks necessary to care for himself or
61-9 herself or to manage the individual's property, the court may
61-10 appoint a guardian with limited powers and permit the individual to
61-11 care for himself or herself or to manage the individual's property
61-12 commensurate with the individual's ability.
61-13 (d) An order appointing a guardian must contain findings of
61-14 fact and specify:
61-15 (1) the information required by Section 692 of this
61-16 code;
61-17 (2) the properties of the person that the guardian is
61-18 entitled to possess and manage, with a description of the
61-19 properties sufficient to identify them;
61-20 (3) the debts, rentals, wages, or other claims due the
61-21 person that the guardian is entitled to collect, or file suit to
61-22 collect, and after collection to possess and manage;
61-23 (4) the contractual or other obligations that the
61-24 guardian may incur on behalf of the person;
61-25 (5) the claims against the person that the guardian
61-26 may pay, compromise, or defend, if necessary;
61-27 (6) the specific powers, limitations, or duties of the
62-1 guardian with respect to the care of the person or the management
62-2 of the person's property by the guardian; and
62-3 (7) if necessary, the amount of funds from the corpus
62-4 of the person's estate the court will allow the guardian to expend
62-5 for the education and maintenance of the person under Section 776
62-6 of this code.
62-7 (e) An order appointing a guardian may not duplicate or
62-8 conflict with the powers and duties of any other guardian.
62-9 Sec. 694. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
62-10 otherwise discharged as provided by law, a guardian remains in
62-11 office until the estate is closed.
62-12 (b) The guardianship shall be settled and closed when the
62-13 incapacitated person:
62-14 (1) dies and, if the person was married, the person's
62-15 spouse qualifies as survivor in community;
62-16 (2) is found by the court to have full capacity to
62-17 care for himself or herself and to manage the person's property;
62-18 (3) is no longer a minor;
62-19 (4) returns to the United States, if the person was a
62-20 missing person and the court grants the motion of any interested
62-21 person to vacate the original order of guardianship; or
62-22 (5) no longer must have a guardian appointed to
62-23 receive funds due the person from any governmental source.
62-24 (c) An order appointing a guardian or a successor guardian
62-25 may specify a period of not more than one year during which a
62-26 petition for adjudication that the incapacitated person no longer
62-27 requires the guardianship may not be filed without special leave.
63-1 (d) Except as provided by Subsection (c) of this section, a
63-2 ward or any person interested in the ward's welfare may petition
63-3 the court for an order:
63-4 (1) finding that the ward no longer needs the
63-5 guardianship and ordering that the guardian resign or be removed;
63-6 (2) finding that the ward lacks the capacity to do
63-7 some or all of the tasks necessary to care for himself or herself
63-8 or to manage the ward's property and granting additional powers or
63-9 duties to the guardian with respect to the care of the ward or the
63-10 management of the ward's property by the guardian; or
63-11 (3) finding that the ward has regained the capacity to
63-12 do some, but not all, of the tasks necessary to care for himself or
63-13 herself or to manage the ward's property and:
63-14 (A) limiting the powers or duties of the
63-15 guardian with respect to the care of the ward or the management of
63-16 the ward's property by the guardian; and
63-17 (B) permitting the ward to care for himself or
63-18 herself or to manage the ward's property commensurate with the
63-19 ward's ability.
63-20 (e) A request for an order under this section may be made by
63-21 informal letter to the court. A person who knowingly interferes
63-22 with the transmission of the request to the court may be adjudged
63-23 guilty of contempt of court.
63-24 (f) If a nonresident guardian of a nonresident ward
63-25 qualifies as guardian under this chapter, the guardianship of any
63-26 resident guardian may be terminated.
63-27 Sec. 695. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) At any
64-1 hearing under this chapter the court may appoint one or more
64-2 successor guardians to assume the position of guardian without
64-3 additional judicial proceedings on the failure to qualify, death,
64-4 incapacity, or resignation of the preceding guardian. The guardian
64-5 serving at the time a successor guardian is appointed shall furnish
64-6 each successor guardian with a copy of the court order establishing
64-7 or modifying the initial guardianship and a copy of the order
64-8 appointing the successor guardian. A successor guardian who
64-9 assumes the position of guardian without a court proceeding shall
64-10 notify the court having jurisdiction of the guardianship of the
64-11 change in guardian not later than the 11th day after the date the
64-12 successor guardian assumes the position of guardian.
64-13 (b) Unless provision for a successor is made under
64-14 Subsection (a) of this section, if a guardian dies, resigns, or is
64-15 removed, the court may, on application and on service of notice as
64-16 directed by the court, appoint a successor guardian.
64-17 (c) A successor guardian has the powers and rights and is
64-18 subject to all of the duties of the preceding guardian.
64-19 Sec. 696. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
64-20 court may not appoint a private professional guardian to serve as a
64-21 guardian or permit a private professional guardian to continue to
64-22 serve as a guardian under this code if the private professional
64-23 guardian has not complied with the requirements of Section 697 of
64-24 this code.
64-25 Sec. 697. REGISTRATION OF PRIVATE PROFESSIONAL GUARDIANS.
64-26 (a) A private professional guardian must apply annually to the
64-27 clerk of the county having venue over the proceeding for the
65-1 appointment of a guardian for certification. The application must
65-2 include a sworn statement containing the following information
65-3 concerning a private professional guardian or a person who
65-4 represents or plans to represent the interests of a ward as a
65-5 guardian on behalf of the private professional guardian:
65-6 (1) educational background and professional
65-7 experience;
65-8 (2) three or more professional references;
65-9 (3) the names of all of the wards the private
65-10 professional guardian or person is or will be serving as a
65-11 guardian;
65-12 (4) the aggregate fair market value of the property of
65-13 all wards that is being or will be managed by the private
65-14 professional guardian or person;
65-15 (5) place of residence, business address, and business
65-16 telephone number; and
65-17 (6) whether the private professional guardian or
65-18 person has ever been removed as a guardian by the court or resigned
65-19 as a guardian in a particular case, and, if so, a description of
65-20 the circumstances causing the removal or resignation, and the style
65-21 of the suit, the docket number, and the court having jurisdiction
65-22 over the proceeding.
65-23 (b) The application must be accompanied by a nonrefundable
65-24 fee set by the clerk in an amount necessary to cover the cost of
65-25 administering this section.
65-26 (c) The term of the certification begins on the date that
65-27 the requirements are met and extends through December 31 of the
66-1 initial year. After the initial year of certification, the term of
66-2 the certification begins on January 1 and ends on December 31 of
66-3 each year. A renewal application must be completed during December
66-4 of the year preceding the year for which the renewal is requested.
66-5 (d) The clerk shall bring the information received under
66-6 this section to the judge's attention for review. The judge shall
66-7 use the information only in determining whether to appoint, remove,
66-8 or continue the appointment of a private professional guardian.
66-9 Sec. 698. ACCESS TO CRIMINAL HISTORY RECORDS. (a) The
66-10 clerk of the county having venue over the proceeding for the
66-11 appointment of a guardian shall obtain criminal history record
66-12 information that is maintained by the Department of Public Safety
66-13 or the Federal Bureau of Investigation identification division
66-14 relating to a private professional guardian or a person who
66-15 represents or plans to represent the interests of a ward as a
66-16 guardian on behalf of the private professional guardian.
66-17 (b) The criminal history record information obtained under
66-18 this section is for the exclusive use of the court and is
66-19 privileged and confidential. The criminal history record
66-20 information may not be released or otherwise disclosed to any
66-21 person or agency except on court order or consent of the person
66-22 being investigated. The clerk may destroy the criminal history
66-23 information records after the records are used for the purposes
66-24 authorized by this section.
66-25 (c) The court shall use the information obtained under this
66-26 section only in determining whether to appoint, remove, or continue
66-27 the appointment of a private professional guardian.
67-1 (d) A person commits an offense if the person releases or
67-2 discloses any information received under this section without the
67-3 authorization prescribed by Subsection (b) of this section. An
67-4 offense under this subsection is a Class A misdemeanor.
67-5 (e) The clerk may charge a reasonable fee sufficient to
67-6 recover the costs of obtaining criminal history information records
67-7 authorized by Subsection (a) of this section.
67-8 SUBPART B. QUALIFICATION
67-9 Sec. 699. HOW GUARDIANS QUALIFY. A guardian is deemed to
67-10 have duly qualified when the guardian has taken and filed the oath
67-11 required under Section 700 of this code, has made the required
67-12 bond, and has filed it with the clerk, and has the bond approved by
67-13 the judge. A guardian who is not required to make bond, is deemed
67-14 to have duly qualified when the guardian has taken and filed the
67-15 required oath.
67-16 Sec. 700. OATH OF GUARDIAN. The guardian shall take an oath
67-17 to discharge faithfully the duties of guardian for the person or
67-18 estate, or both, of a ward.
67-19 Sec. 701. TIME FOR TAKING OATH AND GIVING BOND. The oath of
67-20 a guardian may be taken and subscribed, or the bond of a guardian
67-21 may be given and approved, at any time before the expiration of the
67-22 20th day after the date of the order granting letters of
67-23 guardianship, or before the letters have been revoked for a failure
67-24 to qualify within the time allowed. An oath may be taken before
67-25 any person authorized to administer oaths under the laws of this
67-26 state.
67-27 Sec. 702. BOND OF GUARDIAN OF THE PERSON. (a) A bond is
68-1 not required to be given by a guardian that is a corporate
68-2 fiduciary, as defined by Section 601(5) of this code.
68-3 (b) Except as provided by Subsection (d) of this section,
68-4 when a will that is made by a surviving parent and is probated in a
68-5 court in this state directs that the guardian appointed in the will
68-6 serve without bond, the court finding that the person is qualified
68-7 shall issue letters of guardianship to the person named to be
68-8 appointed guardian in the will without requirement of bond.
68-9 (c) Except as provided by Subsection (d) of this section, a
68-10 guardian of the person is not required to give bond.
68-11 (d) On a court's own motion or the motion of an interested
68-12 person and for good cause shown, the court may require a
68-13 noncorporate guardian to furnish a bond that is conditioned on the
68-14 faithful discharge of all duties required of a guardian under this
68-15 chapter.
68-16 Sec. 703. BOND OF GUARDIAN OF THE ESTATE. (a) Except when
68-17 bond is not required under this chapter, before being issued
68-18 letters of guardianship of estates, the recipient of letters shall
68-19 give a bond that is conditioned as required by law and that is
68-20 payable to the judge of the county in which the guardianship
68-21 proceedings are pending or to the judge's successors in office. A
68-22 bond of the guardian of the estate must have the written approval
68-23 of either of the judges in the judge's official capacity and shall
68-24 be executed and approved in accordance with Subsections (b)-(q) of
68-25 this section.
68-26 (b) The judge shall set the penalty of the bond in an amount
68-27 that is sufficient to protect the guardianship and its creditors,
69-1 as provided by this chapter.
69-2 (c) If a bond is or will be required of a guardian of an
69-3 estate, the court, before setting the penalty of the bond, shall
69-4 hear evidence and determine:
69-5 (1) the amount of cash on hand and where deposited,
69-6 and the amount of cash estimated to be needed for administrative
69-7 purposes, including the operation of a business, factory, farm, or
69-8 ranch owned by the guardianship estate, and administrative expenses
69-9 for one year;
69-10 (2) the revenue anticipated to be received in the
69-11 succeeding 12 months from dividends, interest, rentals, or use of
69-12 real or personal property belonging to the guardianship estate and
69-13 the aggregate amount of any installments or periodic payments to be
69-14 collected;
69-15 (3) the estimated value of certificates of stock,
69-16 bonds, notes, or securities of the ward, the name of the depository
69-17 in which the stocks, bonds, notes, or securities of the ward are
69-18 held for safekeeping, the face value of life insurance or other
69-19 policies payable to the person on whose guardianship administration
69-20 is sought or to the person's estate, and other personal property
69-21 that is owned by the guardianship, or by a person with a
69-22 disability; and
69-23 (4) the estimated amount of debts due and owing by the
69-24 ward.
69-25 (d) The judge shall set the penalty of the bond in an
69-26 amount equal to the estimated value of all personal property
69-27 belonging to the ward, with an additional amount to cover revenue
70-1 anticipated to be derived during the succeeding 12 months from
70-2 interest, dividends, collectible claims, the aggregate amount of
70-3 any installments or periodic payments exclusive of income derived
70-4 or to be derived from federal social security payments, and rentals
70-5 for use of real and personal property, provided that the penalty of
70-6 the original bond shall be reduced in proportion to the amount of
70-7 cash or value of securities or other assets authorized or required
70-8 to be deposited or placed in safekeeping by court order, or
70-9 voluntarily made by the guardian or by the sureties on the bond of
70-10 the guardian as provided in Subsections (f) and (g) of this
70-11 section.
70-12 (e) If the court considers it to be in the best interests of
70-13 the ward, the court may require that the guardian and the corporate
70-14 or personal sureties on the bond of the guardian of the ward agree
70-15 to deposit any or all cash and safekeeping of other assets of the
70-16 guardianship estate in a domestic state or national bank, trust
70-17 company, savings and loan association, or other domestic corporate
70-18 depository, duly incorporated and qualified to act as a national
70-19 bank, trust company, savings and loan association, or other
70-20 domestic corporate depository under the laws of this state or of
70-21 the United States, and, if the depository is otherwise proper, the
70-22 court may require the deposit to be made in a manner so as to
70-23 prevent the withdrawal of the money or other assets in the
70-24 guardianship estate without the written consent of the surety or on
70-25 court order made on the notice to the surety. An agreement made by
70-26 a guardian and the sureties on the bond of the guardian under this
70-27 section does not release from liability or change the liability of
71-1 the principal or sureties as established by the terms of the bond.
71-2 (f) Cash, securities, or other personal assets of a ward
71-3 that a ward is entitled to receive may, and if it is deemed by the
71-4 court in the best interests of the ward shall, be deposited or
71-5 placed in safekeeping in one or more of the depositories described
71-6 in this section on the terms prescribed by the court. The court in
71-7 which the guardianship proceeding is pending, on its own motion or
71-8 on written application of the guardian or of any other person
71-9 interested in the ward, may authorize or require additional assets
71-10 of the guardianship estate then on hand or as they accrue during
71-11 the pendency of the guardianship proceeding to be deposited or held
71-12 in safekeeping as provided by this section. The amount of the
71-13 guardian's bond shall be reduced in proportion to the cash
71-14 deposited or the value of the securities or other assets placed in
71-15 safekeeping. Cash that is deposited, securities or other assets
71-16 held in safekeeping, or portions of the cash, securities, or other
71-17 assets held in safekeeping may be withdrawn from a depository only
71-18 on court order. The bond of the guardian shall be increased in
71-19 proportion to the amount of cash or the value of securities or
71-20 other assets that are authorized to be withdrawn.
71-21 (g) In lieu of giving a surety or sureties on a bond that is
71-22 required of the guardian, or for purposes of reducing the amount of
71-23 the bond, the guardian of an estate may deposit out of the
71-24 guardian's own assets cash or securities that are acceptable to the
71-25 court with a domestic state or national bank, trust company,
71-26 savings and loan association, or other domestic corporate
71-27 depository or with any other corporate depository approved by the
72-1 court. If the deposit is otherwise proper, the deposit must be
72-2 equal in amount or value to the amount of the bond required or the
72-3 bond shall be reduced by the value of assets that are deposited.
72-4 (h) The depository shall issue a receipt for a deposit in
72-5 lieu of a surety showing the amount of cash or, if securities, the
72-6 amount and description of the securities and agreeing not to
72-7 disburse or deliver the cash or securities except on receipt of a
72-8 certified copy of an order of the court in which the proceeding is
72-9 pending. The receipt must be attached to the guardian's bond and
72-10 be delivered to and filed by the county clerk after the receipt is
72-11 approved by the judge.
72-12 (i) The amount of cash or securities on deposit may be
72-13 increased or decreased by court order from time to time as the
72-14 interests of the guardianship shall require.
72-15 (j) A cash or security deposit in lieu of a surety on the
72-16 bond may be withdrawn or released only on order of a court that has
72-17 jurisdiction.
72-18 (k) A creditor has the same rights against the guardian and
72-19 the deposits as are provided for recovery against sureties on a
72-20 bond.
72-21 (l) The court on its own motion or on written application by
72-22 the guardian or any other person interested in the guardianship may
72-23 require that the guardian give adequate bond in lieu of the deposit
72-24 or may authorize withdrawal of the deposit and substitution of a
72-25 bond with sureties on the bond. In either case, the guardian shall
72-26 file a sworn statement showing the condition of the guardianship.
72-27 The guardian is subject to removal as in other cases if the
73-1 guardian does not file the sworn statement before the 21st day
73-2 after the guardian is personally served with notice of the filing
73-3 of the application or before the 21st day after the date the court
73-4 enters its motion. The deposit may not be released or withdrawn
73-5 until the court is satisfied as to the condition of the
73-6 guardianship estate, determines the amount of bond, and receives
73-7 and approves the bond.
73-8 (m) On the closing of a guardianship, a deposit or a portion
73-9 of a deposit that remains on hand, whether of the assets of the
73-10 guardian, the guardianship, or surety, shall be released by court
73-11 order and paid to the person entitled to the assets. A writ of
73-12 attachment or garnishment does not lie against the deposit except
73-13 as to claims of creditors of the guardianship being administered or
73-14 of persons interested in the guardianship, including distributees
73-15 and wards, and only if the court has ordered distribution, and only
73-16 to the extent of the ordered distribution.
73-17 (n) The surety on the bond may be an authorized corporate or
73-18 personal surety.
73-19 (o) When the bond is more than $50,000, the court may
73-20 require that the bond be signed by two or more authorized corporate
73-21 sureties or by one corporate surety and two or more good and
73-22 sufficient personal sureties. The guardianship shall pay the cost
73-23 of a bond with corporate sureties.
73-24 (p) If the sureties are natural persons, there may not be
73-25 less than two sureties, each of whom shall make affidavit in the
73-26 manner prescribed by this chapter. The judge must be satisfied
73-27 that each surety owns property in this state, over and above that
74-1 exempt by law, sufficient to qualify as a surety as required by
74-2 law. Except as otherwise provided by law, only one surety is
74-3 required if the surety is an authorized corporate surety. A
74-4 personal surety, instead of making an affidavit or creating a lien
74-5 on specific real estate when an affidavit or lien is required, may
74-6 deposit the personal surety's own cash or securities in the same
74-7 manner as a guardian in lieu of pledging real property as security,
74-8 subject to the provisions covering the deposits when made by
74-9 guardians.
74-10 (q) If the guardian is a temporary guardian, the judge shall
74-11 set the amount of the bond.
74-12 (r) The provisions of this section relating to the deposit
74-13 of cash and safekeeping of securities cover, as far as they may
74-14 apply, the orders entered by the court when:
74-15 (1) real or personal property of a guardianship has
74-16 been authorized to be sold or rented;
74-17 (2) money is borrowed from the guardianship;
74-18 (3) real property, or an interest in real property,
74-19 has been authorized to be leased for mineral development or made
74-20 subject to unitization;
74-21 (4) the general bond has been found insufficient; or
74-22 (5) money is borrowed or invested on behalf of a ward.
74-23 (s) In determining the amount of the bond, the court may not
74-24 take into account the assets of the estate that are placed in a
74-25 management trust under Subpart N, Part 4, of this code.
74-26 Sec. 704. FORM OF BOND. The following form, or the same in
74-27 substance, may be used for the bonds of guardians:
75-1 "The State of Texas
75-2 "County of _____
75-3 "Know all men by these presents that we, A. B., as principal,
75-4 and E. F., as sureties, are held and firmly bound to the county
75-5 judge of the County of ____ and his successors in office, in the
75-6 sum of $______; conditioned that the above bound A. B., who has
75-7 been appointed by the judge of the county as guardian or temporary
75-8 guardian of the person or of the estate, or both, __________,
75-9 stating in each case whether or not the person is a minor or an
75-10 incapacitated person other than a minor, shall well and truly
75-11 perform all of the duties required of the guardian or temporary
75-12 guardian of the estate by law under appointment."
75-13 Sec. 705. BOND TO BE FILED. A bond required under this
75-14 chapter shall be subscribed by the principals and sureties, and
75-15 shall be filed with the clerk when approved by the court.
75-16 Sec. 706. BOND OF JOINT GUARDIANS. When two or more persons
75-17 are appointed guardians and are required to give a bond by the
75-18 court or under this chapter, the court may require either a
75-19 separate bond from each person or one joint bond from all of the
75-20 persons.
75-21 Sec. 707. BOND OF MARRIED PERSONS. When a married person is
75-22 appointed guardian, the person may jointly execute, with or
75-23 without, the person's spouse, the bond required by law. The bond
75-24 shall bind the person's separate estate and may bind the person's
75-25 spouse only if the bond is signed by the spouse.
75-26 Sec. 708. BOND OF MARRIED PERSON YOUNGER THAN 18 YEARS OF
75-27 AGE. When a person who is younger than 18 years of age and is or
76-1 has been married accepts and qualifies as guardian, a bond required
76-2 to be executed by the person shall be as valid and binding for all
76-3 purposes as if the person were of lawful age.
76-4 Sec. 709. AFFIDAVIT OF PERSONAL SURETY; LIEN ON SPECIFIC
76-5 PROPERTY WHEN REQUIRED; SUBORDINATION OF LIEN AUTHORIZED. (a)
76-6 Before a judge considers a bond a with personal surety, each
76-7 personal surety shall execute an affidavit stating the amount of
76-8 the surety's assets, reachable by creditors, of a value over and
76-9 above the surety's liabilities. The total of the surety's worth
76-10 must be equal to at least double the amount of the bond. The
76-11 affidavit shall be presented to the judge for the judge's
76-12 consideration and, if approved, shall be attached to and form part
76-13 of the bond.
76-14 (b) If the judge finds that the estimated value of personal
76-15 property of the guardianship that cannot be deposited or held in
76-16 safekeeping as provided by this section is such that personal
76-17 sureties cannot be accepted without the creation of a specific lien
76-18 on the real property of the sureties, the judge shall enter an
76-19 order requiring that each surety designate real property owned by
76-20 the surety in this state subject to execution. The designated
76-21 property must be of a value over and above all liens and unpaid
76-22 taxes, equal at least to the amount of the bond, giving an adequate
76-23 legal description of the property, all of which shall be
76-24 incorporated in an affidavit by the surety, approved by the judge,
76-25 and attached to and form part of the bond. If the surety does not
76-26 comply with the order, the judge may require that the bond be
76-27 signed by an authorized corporate surety or by an authorized
77-1 corporate surety and two or more personal sureties.
77-2 (c) If a personal surety who has been required to create a
77-3 lien on specific real estate desires to lease the real property for
77-4 mineral development, the personal surety may file the surety's
77-5 written application in the court in which the proceeding is pending
77-6 to request subordination of the lien to the proposed lease. The
77-7 judge of the court in which the proceeding is pending may enter an
77-8 order granting the application. A certified copy of an order
77-9 entered under this subsection that is filed and recorded in the
77-10 deed records of the proper county is sufficient to subordinate the
77-11 lien to the rights of a lessee in the proposed lease.
77-12 Sec. 710. BOND AS LIEN ON REAL PROPERTY OF SURETY. When a
77-13 personal surety is required by the court to create a lien on
77-14 specific real property as a condition of the personal surety's
77-15 acceptance as surety on a bond, a lien on the surety's real
77-16 property in this state that is described in the affidavit of the
77-17 surety, and only on the property, shall arise as security for the
77-18 performance of the obligation of the bond. Before letters are
77-19 issued to the guardian, the clerk of the court shall mail to the
77-20 office of the county clerk of each county in which any real
77-21 property set forth in the surety's affidavit is located a statement
77-22 signed by the clerk that gives a sufficient description of the real
77-23 property, the name of the principal and sureties, the amount of the
77-24 bond, the name of the guardianship, and the court in which the bond
77-25 is given. The county clerk to whom such statement is sent shall
77-26 record the statement in the deed records of the county. The
77-27 recorded statement shall be duly indexed in such a manner that the
78-1 existence and character of a lien may conveniently be determined,
78-2 and the recording and indexing of the statement is constructive
78-3 notice to a person of the existence of the lien on the real
78-4 property located in the county, effective as of the date of the
78-5 indexing.
78-6 Sec. 711. WHEN NEW BOND MAY BE REQUIRED. A guardian may be
78-7 required to give a new bond when:
78-8 (1) one of the sureties on the bond dies, removes
78-9 beyond the limits of the state, or becomes insolvent;
78-10 (2) in the opinion of the court, the sureties on the
78-11 bond are insufficient;
78-12 (3) in the opinion of the court, the bond is
78-13 defective;
78-14 (4) the amount of the bond is insufficient;
78-15 (5) one of the sureties petitions the court to be
78-16 discharged from future liability on the bond; or
78-17 (6) the bond and the record of the bond has been lost
78-18 or destroyed.
78-19 Sec. 712. DEMAND FOR NEW BOND BY INTERESTED PERSON. A
78-20 person interested in a guardianship may allege, on application in
78-21 writing that is filed with the county clerk of the county in which
78-22 the guardianship proceeding is pending, that the guardian's bond is
78-23 insufficient or defective or has been, with the record of the bond,
78-24 lost or destroyed, and may cause the guardian to be cited to appear
78-25 and show cause why the guardian should not give a new bond.
78-26 Sec. 713. JUDGE TO REQUIRE NEW BOND. When it is made known
78-27 to a judge that a bond is insufficient or that the bond has, with
79-1 the record of the bond, been lost or destroyed, the judge without
79-2 delay shall cause the guardian to be cited to show cause why the
79-3 guardian should not give a new bond.
79-4 Sec. 714. ORDER REQUIRING NEW BOND. On the return of a
79-5 citation ordering a guardian to show cause why the guardian should
79-6 not give a new bond, the judge on the day contained in the return
79-7 of citation as the day for the hearing of the matter, shall proceed
79-8 to inquire into the sufficiency of the reasons for requiring a new
79-9 bond. If the judge is satisfied that a new bond should be
79-10 required, the judge shall enter an order to that effect that states
79-11 the amount of the new bond and the time within which the new bond
79-12 shall be given, which may not be later than 20 days from the date
79-13 of the order issued by the judge under this section.
79-14 Sec. 715. ORDER SUSPENDS POWERS OF GUARDIANS. When a
79-15 guardian is required to give a new bond, the order requiring the
79-16 bond has the effect of suspending the guardian's powers, and the
79-17 guardian may not pay out any money of the guardianship or do any
79-18 other official act, except to preserve the property of the
79-19 guardianship, until a new bond has been given and approved.
79-20 Sec. 716. DECREASE IN AMOUNT OF BOND. A guardian required
79-21 to give bond at any time may file with the clerk a written
79-22 application to the court to have the bond reduced. After an
79-23 application has been filed by the guardian under this section, the
79-24 clerk shall issue and cause to be posted notice to all persons
79-25 interested in the estate and to a surety on the bond, apprising the
79-26 persons and surety of the fact and nature of the application and of
79-27 the time at which the judge will hear the application. The judge
80-1 may permit the filing of a new bond in a reduced amount on the
80-2 submission of proof that a smaller bond than the one in effect will
80-3 be adequate to meet the requirements of the law and protect the
80-4 guardianship and on the approval of an accounting filed at the time
80-5 of the application.
80-6 Sec. 717. DISCHARGE OF SURETIES ON EXECUTION OF NEW BOND.
80-7 When a new bond has been given and approved, the judge shall enter
80-8 an order discharging the sureties on the former bond from all
80-9 liability for the future acts of the principal.
80-10 Sec. 718. RELEASE OF SURETIES BEFORE GUARDIANSHIP FULLY
80-11 ADMINISTERED. A surety on the guardian's bond at any time may file
80-12 with the clerk a petition with the court in which the proceeding is
80-13 pending, praying that the guardian be required to give a new bond
80-14 and that the petitioner be discharged from all liability for the
80-15 future acts of the guardian. If a petition is filed, the guardian
80-16 shall be cited to appear and give a new bond.
80-17 Sec. 719. RELEASE OF LIEN BEFORE GUARDIANSHIP FULLY
80-18 ADMINISTERED. If a personal surety who has given a lien on
80-19 specific real property as security applies to the court to have the
80-20 lien released, the court shall order the release requested if the
80-21 court is satisfied that the bond is sufficient without the lien on
80-22 the property or if sufficient other real or personal property of
80-23 the surety is substituted on the same terms and conditions required
80-24 for the lien that is to be released. If the personal surety who
80-25 requests the release of the lien does not offer a lien on other
80-26 real or personal property and if the court is not satisfied that
80-27 the bond is sufficient without the substitution of other property,
81-1 the court shall order the guardian to appear and give a new bond.
81-2 Sec. 720. RELEASE OF RECORDED LIEN ON SURETY'S PROPERTY. A
81-3 certified copy of the court order that describes the property,
81-4 releases the lien, and is filed with the county clerk and recorded
81-5 in the deed records of the county in which the property is located
81-6 has the effect of cancelling the lien on the property.
81-7 Sec. 721. REVOCATION OF LETTERS FOR FAILURE TO GIVE BOND.
81-8 If a guardian of a ward fails to give the bond required by the
81-9 court within the time required under this chapter, another person
81-10 may be appointed guardian of the ward.
81-11 Sec. 722. GUARDIAN WITHOUT BOND REQUIRED TO GIVE BOND. If a
81-12 bond is not required of an individual guardian of the estate, a
81-13 person that has a debt, claim, or demand against the guardianship,
81-14 to the justice of which oath has been made by the person, the
81-15 person's agent or attorney, or any other person interested in the
81-16 guardianship, in person or as the representative of another person,
81-17 may file a complaint under oath in writing in the court in which
81-18 the guardian was appointed, and the court, after a complaint is
81-19 filed under this section, shall cite the guardian to appear and
81-20 show cause why the guardian should not be required to give bond.
81-21 Sec. 723. ORDER REQUIRING BOND. On hearing a complaint
81-22 under Section 722 of this code, if it appears to the court that a
81-23 guardian is wasting, mismanaging, or misapplying the guardianship
81-24 estate and that a creditor may probably lose his debt, or that a
81-25 person's interest in the guardianship may be diminished or lost,
81-26 the court shall enter an order requiring the guardian to give a
81-27 bond not later than the 10th day after the date of the order.
82-1 Sec. 724. AMOUNT OF BOND. A bond that is required under
82-2 Section 723 of this code shall be in an amount that is sufficient
82-3 to protect the guardianship and its creditors. The bond shall be
82-4 approved by and payable to the judge and shall be conditioned that
82-5 the guardian will well and truly administer the guardianship and
82-6 that the guardian will not waste, mismanage, or misapply the
82-7 guardianship estate.
82-8 Sec. 725. FAILURE TO GIVE BOND. If the guardian fails to
82-9 give the bond required under Section 723 of this code, and the
82-10 judge does not extend the time, the judge, without citation, shall
82-11 remove the guardian and appoint a competent person as guardian of
82-12 the ward who:
82-13 (1) shall administer the guardianship according to the
82-14 provisions of a will or law;
82-15 (2) shall take the oath required of a guardian as the
82-16 case may be before the person enters on the administration of the
82-17 guardianship; and
82-18 (3) shall give bond in the same manner and in the same
82-19 amount provided in this chapter for the issuance of original
82-20 letters of guardianship.
82-21 Sec. 726. BONDS NOT VOID ON FIRST RECOVERY. The bond of a
82-22 guardian is not void on the first recovery, but the bond may be
82-23 sued on and prosecuted from time to time until the whole amount of
82-24 the bond is recovered.
82-25 PART 4. ADMINISTRATION OF GUARDIANSHIP
82-26 SUBPART A. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS
82-27 Sec. 727. APPOINTMENT OF APPRAISERS. After letters of
83-1 guardianship of the estate have been granted and on the application
83-2 of any interested person, or if the court deems it necessary, the
83-3 court shall appoint at least one but not more than three
83-4 disinterested persons who are citizens of the county in which
83-5 letters were granted to appraise the property of the ward. If the
83-6 court appoints an appraiser under this section and part of the
83-7 estate is located in a county other than the county in which
83-8 letters were granted, the court may appoint at least one but not
83-9 more than three disinterested persons who are citizens of the
83-10 county in which the part of the estate is located to appraise the
83-11 property of the estate located in the county if the court considers
83-12 it necessary to appoint an appraiser.
83-13 Sec. 728. FAILURE OF APPRAISER TO SERVE. If an appraiser
83-14 appointed under Section 727 of this code fails or refuses to act,
83-15 the court shall remove the appraiser and appoint one or more
83-16 appraisers.
83-17 Sec. 729. INVENTORY AND APPRAISEMENT. (a) Not later than
83-18 the 90th day after the date the guardian of the estate qualifies as
83-19 guardian, unless a longer time is granted by the court, the
83-20 guardian of the estate shall file with the clerk of court a
83-21 verified, full and detailed inventory, in one written instrument,
83-22 of all the property of the ward that has come into the guardian's
83-23 possession or knowledge. The inventory filed by the guardian under
83-24 this section must include:
83-25 (1) all real property of the ward that is located in
83-26 this state; and
83-27 (2) all personal property of the ward wherever
84-1 located.
84-2 (b) The guardian shall set out in the inventory the
84-3 guardian's appraisement of the fair market value of each item of
84-4 the property on the date of the grant of letters of guardianship.
84-5 If the court appoints an appraiser of the estate, the guardian
84-6 shall determine the fair market value of each item of the inventory
84-7 with the assistance of the appraiser and shall set out in the
84-8 inventory the appraisement made by the appraiser.
84-9 (c) An inventory made under this section must specify what
84-10 portion of the property is separate property and what portion is
84-11 community property. If any property is owned in common with other
84-12 persons, the interest owned by the ward shall be shown in the
84-13 inventory, together with the names and relationship, if known, of
84-14 co-owners.
84-15 (d) The inventory, when approved by the court and duly
84-16 filed with the clerk of court, is for purposes of this chapter the
84-17 inventory and appraisement of the estate referred to in this
84-18 chapter.
84-19 (e) The court for good cause shown may require the filing of
84-20 the inventory and appraisement at a time not later than the 90th
84-21 day after the date of qualification of the guardian.
84-22 Sec. 730. LIST OF CLAIMS. The guardian shall make and
84-23 attach to an inventory under Section 729 of this code a full and
84-24 complete list of all claims due or owing to the ward that must
84-25 state:
84-26 (1) the name of each person indebted to the ward and
84-27 the address of the person if known;
85-1 (2) the nature of the debt, whether it is a note,
85-2 bill, bond, or other written obligation or whether it is an account
85-3 or verbal contract;
85-4 (3) the date of the indebtedness and the date when the
85-5 debt is or was due;
85-6 (4) the amount of each claim, the rate of interest on
85-7 each claim, and time for which the claim bears interest; and
85-8 (5) what portion of the claim is held in common with
85-9 others, including the names and the relationships of other part
85-10 owners and the interest of the estate in the claim.
85-11 Sec. 731. AFFIDAVIT ATTACHED. The guardian of the estate
85-12 shall attach to the inventory and list of claims the guardian's
85-13 affidavit subscribed and sworn to before an officer in the county
85-14 authorized by law to administer oaths that the inventory and list
85-15 of claims are a true and complete statement of the property and
85-16 claims of the estate that have come to the guardian's knowledge.
85-17 Sec. 732. APPRAISER FEES. An appraiser appointed by the
85-18 court is entitled to receive a reasonable fee for the performance
85-19 of the appraiser's duties as an appraiser that are to be paid out
85-20 of the estate.
85-21 Sec. 733. COURT ACTION. (a) On return of the inventory,
85-22 appraisement, and list of claims, the judge shall examine and
85-23 approve or disapprove the inventory, appraisement, or list of
85-24 claims as follows:
85-25 (1) if the judge approves the inventory, appraisement,
85-26 and list of claims, the judge shall issue an order to that effect;
85-27 and
86-1 (2) if the judge does not approve the inventory,
86-2 appraisement, or list of claims, the judge shall enter an order to
86-3 that effect.
86-4 (b) The court order shall require the return of another
86-5 inventory, appraisement, and list of claims, or whichever of them
86-6 is disapproved, within a time specified in the order but not later
86-7 than 20 days after the date of the order. The judge may appoint
86-8 new appraisers if the judge deems it necessary.
86-9 Sec. 734. DISCOVERY OF ADDITIONAL PROPERTY. The guardian of
86-10 the estate shall promptly file with the clerk of court a verified,
86-11 full, and detailed supplemental inventory and appraisement if
86-12 property or claims that are not included in the inventory come to
86-13 the guardian's possession or knowledge after the guardian files the
86-14 inventory and appraisement required under Section 729 of this code.
86-15 Sec. 735. ADDITIONAL INVENTORY OR LIST OF CLAIMS. (a) On
86-16 the written complaint of an interested person that property or
86-17 claims of the estate have not been included in the inventory and
86-18 list of claims filed by the guardian, the guardian of an estate
86-19 shall be cited to appear before the court in which the cause is
86-20 pending and show cause why the guardian should not be required to
86-21 make and return an additional inventory or list of claims, or both.
86-22 (b) After hearing a complaint filed under this section and
86-23 being satisfied of the truth of the complaint, the court shall
86-24 enter an order requiring the additional inventory or list of
86-25 claims, or both, to be made and returned in like manner as the
86-26 original inventory, not later than 20 days after the date of the
86-27 order, as may be set by the court. The additional inventory or
87-1 list of claims must include only property or claims that were not
87-2 inventoried or listed by the guardian.
87-3 Sec. 736. CORRECTION WHEN INVENTORY, APPRAISEMENT, OR LIST
87-4 OF CLAIMS ERRONEOUS OR UNJUST. A person interested in an estate
87-5 who deems an inventory, appraisement, or list of claims returned by
87-6 the guardian erroneous or unjust in any particular form may file a
87-7 written complaint that sets forth and points out the alleged
87-8 erroneous or unjust items and cause the guardian to be cited to
87-9 appear before the court and show cause why the errors should not be
87-10 corrected. On the hearing of a complaint filed under this section,
87-11 if the court is satisfied from the evidence that the inventory,
87-12 appraisement, or list of claims is erroneous or unjust in any
87-13 particular form as alleged in the complaint, the court shall enter
87-14 an order that specifies the erroneous or unjust items and the
87-15 corrections to be made and that appoints an appraiser to make a new
87-16 appraisement correcting the erroneous or unjust items and requires
87-17 the return of the new appraisement not later than the 20th day
87-18 after the date of the order. The court may also, on its own motion
87-19 or on motion of the guardian of the estate, have a new appraisal
87-20 made for the purposes described by this section.
87-21 Sec. 737. EFFECT OF REAPPRAISEMENT. When a reappraisement
87-22 is made, returned, and approved by the court, the reappraisement
87-23 stands in place of the original appraisement. Not more than one
87-24 reappraisement shall be made, but any person interested in the
87-25 estate may object to the reappraisement before or after the
87-26 reappraisement is approved. If the court finds that the
87-27 reappraisement is erroneous or unjust, the court shall appraise the
88-1 property on the basis of the evidence before the court.
88-2 Sec. 738. FAILURE OF JOINT GUARDIANS TO RETURN AN INVENTORY,
88-3 APPRAISEMENT, AND LIST OF CLAIMS. If there is more than one
88-4 qualified guardian of the estate, one or more of the guardians, on
88-5 the neglect of the other guardians, may make and return an
88-6 inventory and appraisement and list of claims. The guardian so
88-7 neglecting may not thereafter interfere with the estate or have any
88-8 power over the estate. The guardian that returns an inventory,
88-9 appraisement, and list of claims has the whole administration,
88-10 unless, not later than the 60th day after the date of return, each
88-11 of the delinquent guardians assigns to the court in writing and
88-12 under oath a reasonable excuse that the court may deem
88-13 satisfactory. If no excuse is filed or if the excuse filed by a
88-14 delinquent guardian is insufficient, the court shall enter an order
88-15 removing the delinquent guardian and revoking the guardian's
88-16 letters.
88-17 Sec. 739. USE OF INVENTORIES, APPRAISEMENTS, AND LISTS OF
88-18 CLAIMS AS EVIDENCE. All inventories, appraisements, and lists of
88-19 claims that have been taken, returned, and approved in accordance
88-20 with the law, or the record of an inventory, appraisement, or list
88-21 of claims, or copies of either the originals or the record, duly
88-22 certified under the seal of the county court affixed by the clerk,
88-23 may be given in evidence in any of the courts of this state in any
88-24 suit by or against the guardian of the estate, but may not be
88-25 conclusive for or against the guardian of the estate if it is shown
88-26 that any property or claims of the estate are not shown in the
88-27 inventory, appraisement, or list of claims or that the value of the
89-1 property or claims of the estate actually was in excess of the
89-2 value shown in the appraisement and list of claims.
89-3 SUBPART B. ANNUAL ACCOUNTS, REPORTS, AND OTHER EXHIBITS
89-4 Sec. 741. ANNUAL ACCOUNTS REQUIRED. (a) Not later than the
89-5 60th day after the expiration of 12 months from the date of
89-6 qualification, the guardian of the estate of a ward shall return to
89-7 the court an exhibit in writing under oath setting forth a list of
89-8 all claims against the estate that were presented to the guardian
89-9 within the period covered by the account and specifying which
89-10 claims have been allowed, paid, or rejected by the guardian and the
89-11 date when any claim was rejected and which claims have been the
89-12 subject of a lawsuit and the status of the lawsuit, and showing:
89-13 (1) all property that has come to the guardian's
89-14 knowledge or into the guardian's possession that has not been
89-15 previously listed or inventoried as property of the ward;
89-16 (2) any changes in the property of the ward that have
89-17 not been previously reported;
89-18 (3) a complete account of receipts and disbursements
89-19 for the period covered by the account, and the source and nature of
89-20 the receipts and disbursements, with receipts of principal and
89-21 income shown separately;
89-22 (4) a complete, accurate, and detailed description of
89-23 the property being administered, the condition of the property, and
89-24 the use being made of the property and, if rented, the terms of the
89-25 rental and the price for which the property is being rented;
89-26 (5) the cash balance on hand and the name and location
89-27 of the depository where the cash balance is kept and any other sums
90-1 of cash in savings accounts or other form, deposited subject to
90-2 court order, and the name and location of the depository of the
90-3 cash; and
90-4 (6) a detailed description of personal property of the
90-5 estate, that, with respect to bonds, notes, and other securities,
90-6 includes the names of obligor and obligee, or if payable to bearer,
90-7 so state; the date of issue and maturity; the rate of interest;
90-8 serial or other identifying numbers; in what manner the property is
90-9 secured; and other data necessary to identify the same fully, and
90-10 how and where held for safekeeping.
90-11 (b) A guardian of the estate shall file annual accounts
90-12 conforming to the essential requirements of those in Subsection (a)
90-13 of this section as to changes in the assets of the estate after
90-14 rendition of the former account so that the true condition of the
90-15 estate, with respect to money or securities or other property, can
90-16 be ascertained by the court or by any interested person, by adding
90-17 to the balances forward the receipts, and then subtracting the
90-18 disbursements. The description of property sufficiently described
90-19 in an inventory or previous account may be by reference to the
90-20 property.
90-21 (c) The following shall be annexed to all annual accounts of
90-22 guardians of estates:
90-23 (1) proper vouchers for each item of credit claimed in
90-24 the account, or, in the absence of a voucher, the item must be
90-25 supported by evidence satisfactory to the court, and original
90-26 vouchers may, on application, be returned to the guardian after
90-27 approval of the guardian's account;
91-1 (2) an official letter from the bank or other
91-2 depository in which the money on hand of the estate or ward is
91-3 deposited that shows the amounts in general or special deposits;
91-4 and
91-5 (3) proof of the existence and possession of
91-6 securities owned by the estate, or shown by the accounting, and
91-7 other assets held by a depository subject to court order, the proof
91-8 by one of the following means:
91-9 (A) an official letter from the bank or other
91-10 depository that holds the securities or other assets for
91-11 safekeeping; provided, that if the depository is the
91-12 representative, the official letter shall be signed by a
91-13 representative of the depository other than the depository that
91-14 verifies the account;
91-15 (B) a certificate of an authorized
91-16 representative of the corporation that is the surety on the
91-17 representative's bonds;
91-18 (C) a certificate of the clerk or a deputy clerk
91-19 of a court of record in this state; or
91-20 (D) an affidavit of any other reputable person
91-21 designated by the court on request of the guardian or other
91-22 interested party.
91-23 (d) A certificate or affidavit under this section shall be
91-24 to the effect that the affiant has examined the assets exhibited to
91-25 the affiant by the guardian as assets of the estate in which the
91-26 accounting is made, shall describe the assets by reference to the
91-27 account or otherwise sufficiently to identify those assets
92-1 exhibited, and shall state the time when and the place where the
92-2 assets were exhibited. Instead of using a certificate or an
92-3 affidavit, the representative may exhibit the securities to the
92-4 judge of the court who shall endorse on the account, or include in
92-5 the judge's order with respect to the account, a statement that the
92-6 securities shown to the judge as on hand were in fact exhibited to
92-7 the judge and that those securities exhibited to the judge were the
92-8 same as those shown in the account, or note any variance. If the
92-9 securities are exhibited at any place other than where deposited
92-10 for safekeeping, it shall be at the expense and risk of the
92-11 representative. The judge may require additional evidence as to
92-12 the existence and custody of the securities and other personal
92-13 property as in the judge's discretion the judge considers proper,
92-14 and the judge may require the representative to exhibit the
92-15 securities to the judge, or any person designated by the judge, at
92-16 any time at the place where the securities are held for
92-17 safekeeping.
92-18 (e) The guardian of the estate filing the account shall
92-19 attach to the account the guardian's affidavit that the account
92-20 contains a correct and complete statement of the matters to which
92-21 the account relates.
92-22 (f) If the estate produces negligible or fixed income, the
92-23 court has the power to waive the filing of annual accounts, and the
92-24 court may permit the guardian to receive all income and apply it to
92-25 the support, maintenance, and education of the ward and account to
92-26 the court for income and corpus of the estate when the estate must
92-27 be closed.
93-1 Sec. 742. ACTION ON ANNUAL ACCOUNTS. (a) The rules in this
93-2 section govern the handling of annual accounts.
93-3 (b) Annual accounts shall be filed with the county clerk,
93-4 and the filing of the accounts shall be noted on the judge's
93-5 docket.
93-6 (c) Before being considered by the judge, the account must
93-7 remain on file for 10 days.
93-8 (d) After the expiration of 10 days after the filing of an
93-9 annual account, the judge shall consider the annual account, and
93-10 may continue the hearing on the account until the judge is fully
93-11 advised as to all items of the account.
93-12 (e) An accounting may not be approved unless possession of
93-13 cash, listed securities, or other assets held in safekeeping or on
93-14 deposit under court order has been proved as required by law.
93-15 (f) If an account is found to be incorrect, it shall be
93-16 corrected. When corrected to the satisfaction of the court, the
93-17 account shall be approved by a court order, and the court shall act
93-18 with respect to unpaid claims, as follows:
93-19 (1) if it appears from the exhibit, or from other
93-20 evidence, that the estate is wholly solvent, and that the guardian
93-21 has sufficient funds for the payment of every claim against the
93-22 estate, the court shall order immediate payment made of all claims
93-23 allowed and approved or established by judgment; and
93-24 (2) if it appears from the account, or from other
93-25 evidence, that the funds on hand are not sufficient for the payment
93-26 of all the claims, or if the estate is insolvent and the guardian
93-27 has any funds on hand, the court shall order the funds to be
94-1 applied to the payment of all claims having a preference in the
94-2 order of their priority if any claim is still unpaid, and then to
94-3 the payment pro rata of the other claims allowed and approved or
94-4 established by final judgment, taking into consideration also the
94-5 claims that were presented not later than 12 months after the date
94-6 of the granting of administration and those claims that are in suit
94-7 or on which suit may yet be instituted.
94-8 Sec. 743. REPORTS OF GUARDIANS OF THE PERSON. (a) The
94-9 guardian of the person, when there is a separate guardian of the
94-10 estate, shall at the expiration of 12 months from the date of the
94-11 guardian's qualification and receipt of letters, and annually
94-12 thereafter, return to the court the guardian's sworn account
94-13 showing each item of receipts and disbursements for the support and
94-14 maintenance of the ward, the education of the ward when necessary,
94-15 and support and maintenance of the ward's dependents, when
94-16 authorized by order of court.
94-17 (b) The guardian of the person, whether or not there is a
94-18 separate guardian of the estate, shall submit to the court an
94-19 annual report by sworn affidavit that contains the following
94-20 information:
94-21 (1) the guardian's current name, address, and phone
94-22 number;
94-23 (2) the ward's current:
94-24 (A) name, address, and phone number; and
94-25 (B) age and date of birth;
94-26 (3) the type of home in which the ward resides,
94-27 described as the ward's own; a nursing, guardian's, foster, or
95-1 boarding home; a relative's home, and the ward's relationship to
95-2 the relative; a hospital or medical facility; or other type of
95-3 residence;
95-4 (4) the length of time the ward has resided in the
95-5 present home and, if there has been a change in the ward's
95-6 residence in the past year, the reason for the change;
95-7 (5) the date the guardian most recently saw the ward,
95-8 and how frequently the guardian has seen the ward in the past year;
95-9 (6) a statement indicating whether or not the guardian
95-10 has possession or control of the ward's estate;
95-11 (7) the following statements concerning the ward's
95-12 health during the past year:
95-13 (A) whether the ward's mental health has
95-14 improved, deteriorated, or remained unchanged, and a description if
95-15 there has been a change; and
95-16 (B) whether the ward's physical health has
95-17 improved, deteriorated, or remained unchanged, and a description if
95-18 there has been a change;
95-19 (8) a statement concerning whether or not the ward has
95-20 regular medical care, and the ward's treatment or evaluation by any
95-21 of the following persons during the last year, including the name
95-22 of that person, and the treatment involved:
95-23 (A) a physician;
95-24 (B) a psychiatrist, psychologist, or other
95-25 mental health care provider;
95-26 (C) a dentist;
95-27 (D) a social or other caseworker; or
96-1 (E) another individual who provided treatment;
96-2 (9) a description of the ward's activities during the
96-3 past year, including recreational, educational, social, and
96-4 occupational activities, or if no activities are available or if
96-5 the ward is unable or has refused to participate in them, a
96-6 statement to that effect;
96-7 (10) the guardian's evaluation of the ward's living
96-8 arrangements as excellent, average, or below average, including an
96-9 explanation if the conditions are below average;
96-10 (11) the guardian's evaluation of whether the ward is
96-11 content or unhappy with the ward's living arrangements;
96-12 (12) the guardian's evaluation of unmet needs of the
96-13 ward;
96-14 (13) a statement of whether or not the guardian's
96-15 power should be increased, decreased, or unaltered, including an
96-16 explanation if a change is recommended; and
96-17 (14) any additional information the guardian desires
96-18 to share with the court regarding the ward.
96-19 (c) If the ward is deceased, the guardian shall provide the
96-20 court with the date and place of death, if known, in lieu of the
96-21 information about the ward otherwise required to be provided in the
96-22 annual report.
96-23 (d) Unless the judge is satisfied that the facts stated are
96-24 true, he shall issue orders as are necessary for the best interests
96-25 of the ward.
96-26 Sec. 744. PENALTY FOR FAILURE TO FILE ACCOUNTINGS, EXHIBITS,
96-27 OR REPORTS. If a guardian fails to file any accounting, exhibit,
97-1 or report required by this chapter, any person interested in the
97-2 estate may, on written complaint filed with the clerk of the
97-3 court, or the court on its own motion, may cause the guardian to be
97-4 cited to appear and show cause why the guardian should not file the
97-5 exhibit or report; and, on hearing, the court may order the
97-6 guardian to file the exhibit or report, and, unless good cause is
97-7 shown for the failure to file the exhibit or report, the court may
97-8 revoke the letters of the guardian and may fine the guardian an
97-9 amount not to exceed $1,000.
97-10 SUBPART C. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE
97-11 Sec. 745. CLOSING GUARDIANSHIPS OF THE ESTATE. (a) A
97-12 guardianship of the estate of a ward is settled and closed when:
97-13 (1) a minor ward dies or becomes an adult by becoming
97-14 18 years of age, or by removal of disabilities of minority
97-15 according to the law of this state, or by marriage;
97-16 (2) an incapacitated ward dies, or is decreed as
97-17 provided by law to have been restored to full legal capacity;
97-18 (3) the spouse of a married ward has qualified as
97-19 survivor in community and the ward owns no separate property;
97-20 (4) the estate of a ward becomes exhausted;
97-21 (5) the foreseeable income accruing to a ward or to
97-22 his estate is so negligible that maintaining the guardianship in
97-23 force would be burdensome; or
97-24 (6) all of the assets of the estate have been placed
97-25 in a management trust under Subpart N, Part 4, of this code and the
97-26 court determines that a guardianship for the ward is no longer
97-27 necessary.
98-1 (b) In a case arising under Subsection (a)(5) of this
98-2 section, the court may authorize the income to be paid to a parent,
98-3 or other person who has acted as guardian of the ward, to assist in
98-4 the maintenance of the ward and without liability to account to the
98-5 court for the income.
98-6 (c) When the estate of a minor ward consists only of cash or
98-7 cash equivalents in an amount of $25,000 or less, the guardianship
98-8 of the estate may be terminated and the assets paid to the county
98-9 clerk of the county in which the guardianship proceeding is
98-10 pending, and the clerk shall manage the funds as provided by
98-11 Section 885 of this code.
98-12 (d) In the settlement and closing of a guardianship, the
98-13 court may appoint an attorney ad litem to represent the interests
98-14 of the ward, and may allow the attorney reasonable compensation for
98-15 services provided by the attorney out of the ward's estate.
98-16 Sec. 746. PAYMENT OF FUNERAL EXPENSES AND OTHER DEBTS.
98-17 Notwithstanding Section 745 of this code, before the guardianship
98-18 of a person or estate of a ward is closed on the death of a ward,
98-19 the guardian, subject to the approval of the court, may make all
98-20 funeral arrangements, pay for the funeral expenses out of the
98-21 estate of the deceased ward, and pay all other debts out of the
98-22 estate. If a personal representative of the estate of a deceased
98-23 ward is appointed, the court shall on the written complaint of the
98-24 personal representative cause the guardian to be cited to appear
98-25 and present a final account as provided in Section 749 of this
98-26 code.
98-27 Sec. 747. TERMINATION OF GUARDIANSHIP OF THE PERSON. (a)
99-1 When the guardianship of an incapacitated person is settled and
99-2 closed as provided by Section 745 of this code, the guardian of the
99-3 person shall deliver all property of the ward in the possession or
99-4 control of the guardian to the emancipated ward or other person
99-5 entitled to the property. If the ward is deceased, the guardian
99-6 shall deliver the property to the personal representative of the
99-7 deceased ward's estate or other person entitled to the property.
99-8 (b) If there is no property of the ward in the possession or
99-9 control of the guardian of the person, the guardian shall file with
99-10 the court a sworn affidavit that states the reason the guardianship
99-11 was terminated and to whom the property of the ward in the
99-12 guardian's possession was delivered. The judge may issue orders as
99-13 necessary for the best interests of the ward or of the estate of a
99-14 deceased ward. This section does not discharge a guardian of the
99-15 person from liability for breach of the guardian's fiduciary
99-16 duties.
99-17 Sec. 748. PAYMENT BY GUARDIAN OF TAXES OR EXPENSES.
99-18 Notwithstanding any other provision of this chapter, a probate
99-19 court in which proceedings to declare heirship are maintained may
99-20 order the payment by the guardian of any and all taxes or expenses
99-21 of administering the estate and may order the sale of properties in
99-22 the ward's estate, when necessary, for the purpose of paying the
99-23 taxes or expenses of administering the estate or for the purpose of
99-24 distributing the estate among the heirs.
99-25 Sec. 749. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS.
99-26 When a guardianship of the estate is settled and closed, the
99-27 guardian shall present to the court the guardian's verified account
100-1 for final settlement. In the account it shall be sufficient to
100-2 refer to the inventory without describing each item of property in
100-3 detail and to refer to and adopt any and all guardianship
100-4 proceedings that concern sales, renting or hiring, leasing for
100-5 mineral development, or any other transaction on behalf of the
100-6 guardianship estate, including an exhibit, account, or voucher
100-7 previously filed and approved, without restating the particular
100-8 items. Each final account shall be accompanied by proper vouchers
100-9 in support of each item not already accounted for and shall show,
100-10 either by reference to any proceedings authorized above or by
100-11 statement of the facts:
100-12 (1) the property, rents, revenues, and profits
100-13 received by the guardian, and belonging to the ward, during the
100-14 term of the guardianship;
100-15 (2) the disposition made of the property, rents,
100-16 revenues, and profits;
100-17 (3) the expenses and debts against the estate that
100-18 remain unpaid, if any;
100-19 (4) the property of the estate that remains in the
100-20 hands of the guardian, if any; and
100-21 (5) other facts as appear necessary to a full and
100-22 definite understanding of the exact condition of the guardianship.
100-23 Sec. 750. PROCEDURE IN CASE OF NEGLECT OR FAILURE TO FILE
100-24 FINAL ACCOUNT OR REPORT. If a guardian charged with the duty of
100-25 filing a final account or report fails or neglects so to do at the
100-26 proper time, the court, on the court's own motion, or on the
100-27 written complaint of the emancipated ward or any one interested in
101-1 the ward or the ward's estate, shall cause the guardian to be cited
101-2 to appear and present the account or report within the time
101-3 specified in the citation.
101-4 Sec. 751. CITATION ON PRESENTATION OF ACCOUNT FOR FINAL
101-5 SETTLEMENT. (a) On the filing of an account for final settlement
101-6 by a guardian of the estate of a ward, citation must contain a
101-7 statement that the final account has been filed, the time and place
101-8 when it will be considered by the court, and a statement requiring
101-9 the person cited to appear and contest the final account if the
101-10 person determines it is proper. The county clerk shall issue the
101-11 citation to the following persons and in the manner provided by
101-12 this section.
101-13 (b) If a ward is a living resident of this state who is 14
101-14 years of age or older, and the ward's residence is known, the ward
101-15 shall be cited by personal service, unless the ward, in person or
101-16 by attorney, by writing filed with the clerk, waives the issuance
101-17 and personal service of citation.
101-18 (c) If one who has been a ward is deceased, the ward's
101-19 executor or administrator, if one has been appointed, shall be
101-20 personally served, but no service is required if the executor or
101-21 administrator is the same person as the guardian.
101-22 (d) If a ward's residence is unknown, or if the ward is a
101-23 nonresident of this state, or if the ward is deceased and no
101-24 representative of the ward's estate has been appointed and
101-25 qualified in this state, the citation to the ward or to the ward's
101-26 estate shall be by publication, unless the court by written order
101-27 directs citation by posting.
102-1 (e) If the court deems further additional notice necessary,
102-2 it shall require the additional notice by written order. In its
102-3 discretion, the court may allow the waiver of notice of an account
102-4 for final settlement in a guardianship proceeding.
102-5 Sec. 752. COURT ACTION. (a) On being satisfied that
102-6 citation has been duly served on all persons interested in the
102-7 estate, the court shall examine the account for final settlement
102-8 and the vouchers accompanying the account. After hearing all
102-9 exceptions or objections to the account and evidence in support of
102-10 or against the account, the court shall audit and settle the same,
102-11 and restate it if that is necessary.
102-12 (b) On final settlement of an estate, if there is any part
102-13 of the estate remaining in the hands of the guardian, the court
102-14 shall order that it be delivered, in case of a ward, to the ward,
102-15 or in the case of a deceased ward, to the personal representative
102-16 of the deceased ward's estate if one has been appointed, or to any
102-17 other person legally entitled to the estate.
102-18 (c) If on final settlement of an estate there is no part of
102-19 the estate remaining in the hands of the guardian, the court shall
102-20 discharge the guardian from the guardian's trust and order the
102-21 estate closed.
102-22 (d) When the guardian of an estate has fully administered
102-23 the estate in accordance with this chapter and the orders of the
102-24 court and the guardian's final account has been approved, and the
102-25 guardian has delivered all of the estate remaining in the
102-26 guardian's hands to any person entitled to receive the estate, the
102-27 court shall enter an order discharging the guardian from the
103-1 guardian's trust, and declaring the estate closed.
103-2 Sec. 753. MONEY BECOMING DUE PENDING FINAL DISCHARGE. Money
103-3 or any other thing of value falling due to the estate or ward while
103-4 the account for final settlement is pending, until the order of
103-5 final discharge of the guardian is entered in the minutes of the
103-6 court, may be paid, delivered, or tendered to the emancipated ward,
103-7 the guardian, or the personal representative of the deceased ward's
103-8 estate, who shall issue a receipt for the money or other thing of
103-9 value, and the obligor or payor shall be discharged of the
103-10 obligation for all purposes.
103-11 Sec. 754. INHERITANCE TAXES MUST BE PAID. If the guardian
103-12 has been ordered to make payment of inheritance taxes under this
103-13 code, an estate of a deceased ward may not be closed unless the
103-14 final account shows and the court finds that all inheritance taxes
103-15 due and owing to this state with respect to all interests and
103-16 properties passing through the hands of the guardian have been
103-17 paid.
103-18 Sec. 755. APPOINTMENT OF ATTORNEY TO REPRESENT WARD. When
103-19 the ward is dead and there is no executor or administrator of the
103-20 ward's estate, or when the ward is a nonresident, or the ward's
103-21 residence is unknown, the court may appoint an attorney ad litem to
103-22 represent the interest of the ward in the final settlement with the
103-23 guardian, and shall allow the attorney reasonable compensation out
103-24 of the ward's estate for any services provided by the attorney.
103-25 Sec. 756. OFFSETS, CREDITS, AND BAD DEBTS. In the
103-26 settlement of any of the accounts of the guardian of an estate, all
103-27 debts due the estate that the court is satisfied could not have
104-1 been collected by due diligence, and that have not been collected,
104-2 shall be excluded from the computation.
104-3 Sec. 757. ACCOUNTING FOR LABOR OR SERVICES OF A WARD. The
104-4 guardian of a ward shall account for the reasonable value of the
104-5 labor or services of the ward of the guardian, or the proceeds of
104-6 the labor or services, if the labor or services have been rendered
104-7 by the ward, but the guardian is entitled to reasonable credits for
104-8 the board, clothing, and maintenance of the ward.
104-9 Sec. 758. PROCEDURE IF REPRESENTATIVE FAILS TO DELIVER
104-10 ESTATE. If a guardian, on final settlement or termination of the
104-11 guardianship of the estate, neglects to deliver to the person
104-12 entitled when legally demanded any portion of the estate or any
104-13 funds or money in the hands of the guardian ordered to be
104-14 delivered, a person entitled to the estate, funds, or money may
104-15 file with the clerk of the court a written complaint alleging the
104-16 fact of the guardian's neglect, the date of the person's demand,
104-17 and other relevant facts. After the person files a complaint under
104-18 this section, the clerk shall issue a citation to be served
104-19 personally on the guardian, appraising the guardian of the
104-20 complaint and citing the guardian to appear before the court and
104-21 answer, if the guardian desires, at the time designated in the
104-22 citation. If at the hearing the court finds that the citation was
104-23 duly served and returned and that the guardian is guilty of the
104-24 neglect charged, the court shall enter an order to that effect, and
104-25 the guardian shall be liable to the person who filed the complaint
104-26 in damages at the rate of 10 percent of the amount or appraised
104-27 value of the money or estate withheld, per month, for each month or
105-1 fraction of a month that the estate or money of a guardianship of
105-2 the estate, or on termination of guardianship of the person, or
105-3 funds is or has been withheld by the guardian after the date of
105-4 demand, which damages may be recovered in any court of competent
105-5 jurisdiction.
105-6 SUBPART D. REVOCATION OF LETTERS, DEATH, RESIGNATION, AND REMOVAL
105-7 Sec. 759. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) In case
105-8 of death, a personal representative of the deceased person shall
105-9 account for, pay, and deliver to a person legally entitled to
105-10 receive the property, all the property belonging to the
105-11 guardianship that is entrusted to the care of the representative,
105-12 at the time and in the manner as the court orders. On a finding
105-13 that a necessity for the immediate appointment of a successor
105-14 guardian exists, the court may appoint a successor guardian without
105-15 citation or notice.
105-16 (b) If letters have been granted to a person, and another
105-17 person whose right to be appointed successor guardian is prior and
105-18 who has not waived the right and is qualified, applies for letters,
105-19 the letters previously granted shall be revoked and other letters
105-20 shall be granted to the applicant.
105-21 (c) If a person named in a will as guardian is not an adult
105-22 when the will is probated and letters in any capacity have been
105-23 granted to another person, the nominated guardian, on proof that
105-24 the nominated guardian has become an adult and is not otherwise
105-25 disqualified from serving as a guardian, is entitled to have the
105-26 former letters revoked and appropriate letters granted to the
105-27 nominated guardian. If the will names two or more persons as
106-1 guardian, any one or more of whom are minors when the will is
106-2 probated and letters have been issued to the persons who are
106-3 adults, a minor, on becoming an adult, if not otherwise
106-4 disqualified, is permitted to qualify and receive letters.
106-5 (d) If a person named in a will as guardian was ill or
106-6 absent from the state when the testator died, or when the will was
106-7 proved, and for that reason could not present the will for probate
106-8 not later than the 30th day after the testator's death, or accept
106-9 and qualify as guardian not later than the 20th day after the date
106-10 the will was probated, the person may accept and qualify as
106-11 guardian not later than the 60th day after the person's return or
106-12 recovery from illness, on proof to the court that the person was
106-13 absent or ill. If the letters have been issued to another person,
106-14 the letters shall be revoked.
106-15 (e) If it is discovered after letters of guardianship have
106-16 been issued that the deceased person left a lawful will, the
106-17 letters shall be revoked and proper letters of guardianship issued
106-18 to a person entitled to receive the letters.
106-19 (f) Except when otherwise expressly provided in this
106-20 chapter, letters may not be revoked and other letters granted
106-21 except on application, and after personal service of citation on
106-22 the person, if living, whose letters are sought to be revoked, that
106-23 the person appear and show cause why the application should not be
106-24 granted.
106-25 (g) Money or any other thing of value falling due to a ward
106-26 while the office of the guardian is vacant may be paid, delivered,
106-27 or tendered to the clerk of the court for credit of the ward, and
107-1 the debtor, obligor, or payor shall be discharged of the obligation
107-2 for all purposes to the extent and purpose of the payment or
107-3 tender. If the clerk accepts the payment or tender, the clerk
107-4 shall issue a proper receipt for the payment or tender.
107-5 Sec. 760. RESIGNATION. (a) A guardian of the estate who
107-6 wishes to resign the guardian's trust shall file with the clerk a
107-7 written application to the court to that effect, accompanied by a
107-8 full and complete exhibit and final account, duly verified, showing
107-9 the true condition of the guardianship estate entrusted to the
107-10 guardian's care. A guardian of the person who wishes to resign the
107-11 guardian's trust shall file with the clerk a written application to
107-12 the court to that effect, accompanied by a report setting forth the
107-13 information required in the annual report required under this
107-14 chapter, duly verified, showing the condition of the ward entrusted
107-15 to the guardian's care.
107-16 (b) If the necessity exists, the court may immediately
107-17 accept a resignation and appoint a successor but may not discharge
107-18 the person resigning as guardian of the estate or release the
107-19 person or the sureties on the person's bond until final order or
107-20 judgment is rendered on the final account of the guardian.
107-21 (c) On the filing of an application to resign, supported by
107-22 an exhibit and final account, the clerk shall call the application
107-23 to the attention of the judge, who shall set a date for a hearing
107-24 on the matter. The clerk shall then issue a citation to all
107-25 interested persons, showing that proper application has been filed
107-26 and the time and place set for hearing, at which time the
107-27 interested persons may appear and contest the exhibit and account
108-1 or report. The citation shall be posted, unless the court directs
108-2 that it be published.
108-3 (d) At the time set for hearing, unless it has been
108-4 continued by the court, if the court finds that citation has been
108-5 duly issued and served, the court shall proceed to examine the
108-6 exhibit and account or report and hear all evidence for and against
108-7 the exhibit, account, or report and shall, if necessary, restate,
108-8 and audit and settle the exhibit, account, or report. If the court
108-9 is satisfied that the matters entrusted to the applicant have been
108-10 handled and accounted for in accordance with the law, the court
108-11 shall enter an order of approval and require that the estate
108-12 remaining in the possession of the applicant, if any, be delivered
108-13 to the person entitled by law to receive it. A guardian of the
108-14 person is required to comply with all orders of the court
108-15 concerning the ward of the guardian.
108-16 (e) A resigning guardian may not be discharged until the
108-17 application has been heard, the exhibit and account or report
108-18 examined, settled, and approved, and the guardian has satisfied the
108-19 court that the guardian has delivered the estate, if there is any
108-20 part of the estate remaining in the possession of the guardian, or
108-21 has complied with all orders of the court with relation to the
108-22 guardian's trust.
108-23 (f) When the resigning guardian has complied in all respects
108-24 with the orders of the court, an order shall be made accepting the
108-25 resignation, discharging the applicant, and, if the applicant is
108-26 under bond, the sureties of the guardian.
108-27 Sec. 761. REMOVAL. (a) The court, on its own motion or on
109-1 motion of any interested person, including the ward, and without
109-2 notice, may remove any guardian, appointed under this chapter, who:
109-3 (1) neglects to qualify in the manner and time
109-4 required by law;
109-5 (2) fails to return within 90 days after
109-6 qualification, unless the time is extended by order of the court,
109-7 an inventory of the property of the guardianship estate and list of
109-8 claims that have come to the guardian's knowledge;
109-9 (3) having been required to give a new bond, fails to
109-10 do so within the time prescribed;
109-11 (4) absents himself from the state for a period of
109-12 three months at one time without permission of the court, or
109-13 removes from the state;
109-14 (5) cannot be served with notices or other processes
109-15 because the guardian's whereabouts are unknown, or because the
109-16 guardian is eluding service;
109-17 (6) has misapplied, embezzled, or removed from the
109-18 state, or is about to misapply, embezzle, or remove from the state,
109-19 all or any part of the property committed to the guardian's care;
109-20 or
109-21 (7) has cruelly treated a ward, or has neglected to
109-22 educate or maintain the ward as liberally as the means of the ward
109-23 and the condition of the ward's estate permit.
109-24 (b) The court may remove a personal representative under
109-25 Subsection (a)(6) or (7) of this section only on the presentation
109-26 of clear and convincing evidence given under oath.
109-27 (c) The court may remove a guardian on its own motion, or on
110-1 the complaint of an interested person, after the guardian has been
110-2 cited by personal service to answer at a time and place set in the
110-3 notice, when:
110-4 (1) sufficient grounds appear to support belief that
110-5 the guardian has misapplied, embezzled, or removed from the state,
110-6 or that the guardian is about to misapply, embezzle, or remove from
110-7 the state, all or any part of the property committed to the care of
110-8 the guardian;
110-9 (2) the guardian fails to return any account or report
110-10 that is required by law to be made;
110-11 (3) the guardian fails to obey any proper order of the
110-12 court having jurisdiction with respect to the performance of the
110-13 guardian's duties;
110-14 (4) the guardian is proved to have been guilty of
110-15 gross misconduct or mismanagement in the performance of the duties
110-16 of the guardian;
110-17 (5) the guardian becomes incapacitated, or is
110-18 sentenced to the penitentiary, or from any other cause becomes
110-19 incapable of properly performing the duties of the guardian's
110-20 trust;
110-21 (6) as guardian of the person, the guardian cruelly
110-22 treats the ward, or neglects to educate or maintain the ward as
110-23 liberally as the means of the ward's estate and the ward's ability
110-24 or condition permit;
110-25 (7) the guardian interferes with the ward's progress
110-26 or participation in programs in the community; or
110-27 (8) the guardian fails to comply with the requirements
111-1 of Section 126 of this code.
111-2 (d) The order of removal shall state the cause of the
111-3 removal. It must require that any letters issued to the person who
111-4 is removed shall, if the removed person has been personally served
111-5 with citation, be surrendered and that all those letters be
111-6 cancelled of record, whether or not delivered. It must further
111-7 require, as to all the estate remaining in the hands of a removed
111-8 person, delivery of the estate to the person or persons entitled to
111-9 the estate, or to one who has been appointed and has qualified as
111-10 successor guardian, and as to the person of a ward, that control be
111-11 relinquished as required in the order.
111-12 Sec. 762. REINSTATEMENT AFTER REMOVAL. (a) Not later than
111-13 the 10th day after the date the court signs the order of removal, a
111-14 personal representative who is removed under Subsection (a)(6) or
111-15 (7), Section 761, of this code may file an application with the
111-16 court for a hearing to determine whether the personal
111-17 representative should be reinstated.
111-18 (b) On the filing of an application for a hearing under this
111-19 section, the court clerk shall issue a notice stating that the
111-20 application for reinstatement was filed, the name of the ward or
111-21 decedent, and the name of the applicant. The clerk shall issue the
111-22 notice to the applicant, the ward, a person interested in the
111-23 welfare of the ward, the decedent's estate, or the ward's estate,
111-24 and, if applicable, to a person who has control of the care and
111-25 custody of the ward. The notice must cite all persons interested
111-26 in the estate or welfare of the ward to appear at the time and
111-27 place stated in the notice if they wish to contest the application.
112-1 (c) If, at the conclusion of a hearing under this section,
112-2 the court is satisfied by a preponderance of the evidence that the
112-3 applicant did not engage in the conduct that directly led to the
112-4 applicant's removal, the court shall set aside an order appointing
112-5 a successor representative, if any, and shall enter an order
112-6 reinstating the applicant as personal representative of the ward or
112-7 estate.
112-8 (d) If the court sets aside the appointment of a successor
112-9 representative under this section, the court may require the
112-10 successor representative to prepare and file, under oath, an
112-11 accounting of the estate and to detail the disposition the
112-12 successor has made of the property of the estate.
112-13 Sec. 763. ADDITIONAL POWERS OF SUCCESSOR GUARDIAN. In
112-14 addition, a successor guardian may make himself, and may be made, a
112-15 party to a suit prosecuted by or against the predecessor of the
112-16 successor guardian. The successor guardian may settle with the
112-17 predecessor and receive and receipt for all the portion of the
112-18 estate as remains in the hands of the successor guardian. The
112-19 successor guardian may bring suit on the bond or bonds of the
112-20 predecessor in the guardian's own name and capacity for all the
112-21 estate that came into the hands of the predecessor and has not been
112-22 accounted for by the predecessor.
112-23 Sec. 764. SUBSEQUENT GUARDIANS SUCCEED TO PRIOR RIGHTS AND
112-24 DUTIES. Whenever a guardian shall accept and qualify after letters
112-25 of guardianship are granted on the estate, the guardian shall, in
112-26 like manner, succeed to the previous guardian, and the guardian
112-27 shall administer the estate in like manner as if the administration
113-1 by the guardian were a continuation of the former one.
113-2 Sec. 765. SUCCESSORS' RETURN OF INVENTORY, APPRAISEMENT, AND
113-3 LIST OF CLAIMS. A successor guardian who has qualified to succeed
113-4 a prior guardian shall make and return to the court an inventory,
113-5 appraisement, and list of claims of the estate, not later than 90
113-6 days after the date of qualification, in the same manner as is
113-7 required of an original appointee. The successor guardian shall in
113-8 like manner as is required of an original appointee return
113-9 additional inventories, appraisements, and lists of claims. In all
113-10 orders appointing a successor guardian, the court shall appoint an
113-11 appraiser as in original appointments on the application of any
113-12 person interested in the estate.
113-13 SUBPART E. GENERAL DUTIES AND POWERS OF GUARDIANS
113-14 Sec. 767. POWERS AND DUTIES OF GUARDIANS OF THE PERSON. The
113-15 guardian of the person is entitled to the charge and control of the
113-16 person of the ward, and the duties of the guardian correspond with
113-17 the rights of the guardian. A guardian of the person has:
113-18 (1) the right to have physical possession of the ward
113-19 and to establish the ward's legal domicile;
113-20 (2) the duty of care, control, and protection of the
113-21 ward;
113-22 (3) the duty to provide the ward with clothing, food,
113-23 medical care, and shelter; and
113-24 (4) the power to consent to medical, psychiatric, and
113-25 surgical treatment other than the in-patient psychiatric commitment
113-26 of the ward.
113-27 Sec. 768. GENERAL POWERS AND DUTIES OF GUARDIAN OF THE
114-1 ESTATE. The guardian of the estate of a ward is entitled to the
114-2 possession and management of all property belonging to the ward, to
114-3 collect all debts, rentals, or claims that are due to the ward, to
114-4 enforce all obligations in favor of the ward, and to bring and
114-5 defend suits by or against the ward; but, in the management of the
114-6 estate, the guardian is governed by the provisions of this chapter.
114-7 It is the duty of the guardian of the estate to take care of and
114-8 manage the estate as a prudent person would manage the person's own
114-9 property. The guardian of the estate shall account for all rents,
114-10 profits, and revenues that the estate would have produced by such
114-11 prudent management.
114-12 Sec. 769. SUMMARY OF POWERS OF GUARDIAN OF PERSON AND
114-13 ESTATE. The guardian of both the person of and estate of a ward
114-14 has all the rights and powers and shall perform all the duties of
114-15 the guardian of the person and of the guardian of the estate.
114-16 Sec. 770. CARE OF WARD; COMMITMENT. (a) The guardian of an
114-17 adult may expend funds of the guardianship as provided by court
114-18 order to care for and maintain the incapacitated person. The
114-19 guardian may apply for residential care and services provided by a
114-20 public or private facility on behalf of an incapacitated person who
114-21 has decision-making ability if the person agrees to be placed in
114-22 the facility. The guardian shall report the condition of the
114-23 person to the court at regular intervals at least annually, unless
114-24 the court orders more frequent reports. If the person is receiving
114-25 residential care in a public or private residential care facility,
114-26 the guardian shall include in any report to the court a statement
114-27 as to the necessity for continued care in the facility.
115-1 (b) A guardian may not voluntarily admit an incapacitated
115-2 person to a public or private inpatient psychiatric facility or to
115-3 a residential facility operated by the Texas Department of Mental
115-4 Health and Mental Retardation for care and treatment. If care and
115-5 treatment in a psychiatric or a residential facility are necessary,
115-6 the person or the person's guardian may apply to a court to commit
115-7 the person under Subtitle D, Title 7, Health and Safety Code
115-8 (Persons with Mental Retardation Act) and its subsequent
115-9 amendments, Subtitle C, Title 7, Health and Safety Code (Texas
115-10 Mental Health Code) and its subsequent amendments, or Chapter 462,
115-11 Health and Safety Code, and its subsequent amendments.
115-12 SUBPART F. SPECIFIC DUTIES AND POWERS OF GUARDIANS
115-13 Sec. 771. GUARDIAN OF ESTATE: POSSESSION OF PERSONAL
115-14 PROPERTY AND RECORDS. The guardian of an estate, immediately after
115-15 receiving letters of guardianship, shall collect and take into
115-16 possession the personal property, record books, title papers, and
115-17 other business papers of the ward and shall deliver the personal
115-18 property, books, or papers, of the ward to a person who is legally
115-19 entitled to that property when the guardianship has been closed or
115-20 a successor guardian has received letters.
115-21 Sec. 772. COLLECTION OF CLAIMS AND RECOVERY OF PROPERTY.
115-22 (a) Every guardian of an estate shall use ordinary diligence to
115-23 collect all claims and debts due the ward and to recover possession
115-24 of all property of the ward to which the ward has claim or title,
115-25 if there is a reasonable prospect of collecting the claims or of
115-26 recovering the property. If the guardian wilfully neglects to use
115-27 ordinary diligence, the guardian and the sureties on the guardian's
116-1 bond shall be liable, at the suit of any person interested in the
116-2 estate, for the use of the estate, for the amount of the claims or
116-3 for the value of the property that has been lost due to the
116-4 guardian's neglect.
116-5 (b) Subject to Subsection (c) of this section, a guardian of
116-6 an estate may enter into a contract to convey, or may convey, a
116-7 contingent interest in any property sought to be recovered, not
116-8 exceeding one-third thereof, for services of attorneys and an
116-9 additional contingent interest in the property for expenses,
116-10 subject only to the approval of the court in which the estate is
116-11 being administered.
116-12 (c) A guardian of an estate may convey or contract to convey
116-13 for services of attorneys or for expenses a contingent interest
116-14 that exceeds one-third of the property sought to be recovered under
116-15 this section only on the approval of the court in which the estate
116-16 is being administered. A contract entered into or conveyance made
116-17 in violation of this section is void, unless the court reforms the
116-18 contract or documents relating to the conveyance to the extent
116-19 necessary to cause the contract or conveyance to meet the
116-20 requirements of this section.
116-21 (d) A contract or conveyance under Subsection (c) of this
116-22 section for services of an attorney must be approved by the court
116-23 before the attorney performs any legal services.
116-24 (e) In approving a contract or conveyance under Subsection
116-25 (b) or (c) of this section for services of an attorney or expenses,
116-26 the court shall consider:
116-27 (1) the time and labor that will be required, the
117-1 novelty and difficulty of the questions to be involved, and the
117-2 skill that will be required to perform the legal services properly;
117-3 (2) the fee customarily charged in the locality for
117-4 similar legal services;
117-5 (3) the value of property recovered or sought to be
117-6 recovered by the personal representative under this section;
117-7 (4) the benefits to the estate that the attorney will
117-8 be responsible for securing; and
117-9 (5) the experience and ability of the attorney who
117-10 will be performing the services.
117-11 Sec. 773. SUIT BY GUARDIAN. A guardian appointed in this
117-12 state may institute suits for the recovery of personal property,
117-13 debts, or damages and suits for title to or possession of land or
117-14 for any right attached to or growing out of the same or for injury
117-15 or damage done. Judgment in those cases shall be conclusive but
117-16 may be set aside by any person interested for fraud or collusion on
117-17 the part of the guardian.
117-18 Sec. 774. EXERCISE OF POWER WITH OR WITHOUT COURT ORDER.
117-19 (a) On application, and if authorized by an order, the guardian of
117-20 the estate may renew or extend any obligation owed by or to the
117-21 ward. On written application to the court and when a guardian of
117-22 the estate deems it is in the interest of the estate, the guardian
117-23 may, if authorized by an order of the court:
117-24 (1) purchase or exchange property;
117-25 (2) take a claim or property for the use and benefit
117-26 of the estate in payment of a debt due or owing to the estate;
117-27 (3) compound a bad or doubtful debt due or owing to
118-1 the estate;
118-2 (4) make a compromise or a settlement in relation to
118-3 property or a claim in dispute or litigation; and
118-4 (5) compromise or pay in full any secured claim that
118-5 has been allowed and approved as required by law against the estate
118-6 by conveying to the holder of the secured claim the real estate or
118-7 personalty securing the claim, in full payment, liquidation, and
118-8 satisfaction of the claim, and in consideration of cancellation of
118-9 a note, deed of trust, mortgage, chattel mortgage, or other
118-10 evidence of a lien that secures the payment of the claim.
118-11 (b) The guardian of the estate of a person, without
118-12 application to or order of the court, may exercise the following
118-13 powers provided, however, that a guardian may apply and obtain an
118-14 order if doubtful of the propriety of the exercise of any such
118-15 power:
118-16 (1) release a lien on payment at maturity of the debt
118-17 secured by the lien;
118-18 (2) vote stocks by limited or general proxy;
118-19 (3) pay calls and assessments;
118-20 (4) insure the estate against liability in appropriate
118-21 cases;
118-22 (5) insure property of the estate against fire, theft,
118-23 and other hazards; and
118-24 (6) pay taxes, court costs, and bond premiums.
118-25 Sec. 775. POSSESSION OF PROPERTY HELD IN COMMON OWNERSHIP.
118-26 If the ward holds or owns any property in common, or as part owner
118-27 with another person, the guardian of the estate is entitled to
119-1 possession of the property of the ward held or owned in common with
119-2 a part owner in the same manner as another owner in common or joint
119-3 owner would be entitled.
119-4 Sec. 776. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF
119-5 WARD. (a) Subject to Section 777 of this code, the court may
119-6 direct the guardian of the person to expend, for the education and
119-7 maintenance of the guardian's ward, a sum in excess of the income
119-8 of the ward's estate. Otherwise, the guardian may not be allowed,
119-9 for the education and maintenance of the ward, more than the net
119-10 income of the estate. When different persons have the guardianship
119-11 of the person and estate of a ward, the guardian of the estate
119-12 shall pay to the guardian of the person a sum that is set by the
119-13 court, at a time specified by the court, for the education and
119-14 maintenance of the ward. If the guardian of the estate fails to
119-15 pay to the guardian of the person the sum set by the court, the
119-16 guardian of the estate shall be compelled to make the payment by
119-17 court order after the guardian is duly cited to appear.
119-18 (b) When a guardian has in good faith expended funds from
119-19 the corpus of the estate of the ward of the guardian for support
119-20 and maintenance for the ward under this section, and when it is not
119-21 convenient or possible for the guardian to first secure court
119-22 approval, if the proof is clear and convincing that the
119-23 expenditures were reasonable and proper, and are expenditures that
119-24 the court would have granted authority to make the expenditures out
119-25 of the corpus, and the ward received the benefits of the
119-26 expenditures, the court may approve the expenditures in the same
119-27 manner as if the expenditures were made by the guardian out of the
120-1 income from the ward's estate. An expenditure under this
120-2 subsection may not exceed $10,000 per ward during an annual
120-3 accounting period, unless the expenditure is made to a nursing home
120-4 in which case the court may ratify any amount.
120-5 Sec. 777. SUMS ALLOWED PARENTS FOR EDUCATION AND MAINTENANCE
120-6 OF MINOR WARD. (a) Except as provided by Subsection (b) of this
120-7 section, a parent who is the guardian of the person of a ward who
120-8 is 17 years of age or younger may not use the income or the corpus
120-9 from the ward's estate for the ward's support, education, or
120-10 maintenance.
120-11 (b) A court with proper jurisdiction may authorize the
120-12 guardian of the person to spend the income or the corpus from the
120-13 ward's estate to support, educate, or maintain the ward if the
120-14 guardian presents clear and convincing evidence to the court that
120-15 the ward's parents are unable to pay for all of the expenses
120-16 related to the ward's support.
120-17 Sec. 778. TITLE OF WARDS NOT TO BE DISPUTED. A guardian or
120-18 the heirs, executors, administrators, or assigns of a guardian may
120-19 not dispute the right of the ward to any property that came into
120-20 the possession of the guardian as guardian of the ward, except
120-21 property that is recovered from the guardian or property on which
120-22 there is a personal action pending.
120-23 Sec. 779. OPERATION OF FARM, RANCH, FACTORY, OR OTHER
120-24 BUSINESS. If the ward owns a farm, ranch, factory, or other
120-25 business and if the farm, ranch, factory, or other business is not
120-26 required to be sold at once for the payment of debts or other
120-27 lawful purposes, the guardian of the estate on order of the court,
121-1 shall carry on the operation of the farm, ranch, factory, or other
121-2 business, or cause the same to be done, or rent the same, as shall
121-3 appear to be for the best interests of the estate. In deciding,
121-4 the court shall consider the condition of the estate and the
121-5 necessity that may exist for the future sale of the property or
121-6 business for the payment of a debt, claim, or other lawful
121-7 expenditure and may not extend the time of renting any of the
121-8 property beyond what appears consistent with the maintenance and
121-9 education of a ward or the settlement of the estate of the ward.
121-10 Sec. 780. ADMINISTRATION OF PARTNERSHIP INTEREST BY
121-11 GUARDIAN. If the ward was a partner in a general partnership and
121-12 the articles of partnership provide that, on the incapacity of a
121-13 partner, the guardian of the estate of the partner is entitled to
121-14 the place of the incapacitated partner in the firm, the guardian
121-15 who contracts to come into the partnership shall, to the extent
121-16 allowed by law, be liable to a third person only to the extent of
121-17 the incapacitated partner's capital in the partnership and the
121-18 assets of the estate of the partner that are held by the guardian.
121-19 This section does not exonerate a guardian from liability for the
121-20 negligence of the guardian.
121-21 Sec. 781. BORROWING MONEY. (a) The guardian may mortgage
121-22 or pledge any real or personal property of a guardianship estate by
121-23 deed of trust or otherwise as security for an indebtedness, under
121-24 court order, when necessary for any of the following purposes:
121-25 (1) for the payment of any ad valorem, income, gift,
121-26 or transfer taxes due from a ward, regardless of whether the taxes
121-27 are assessed by a state, a political subdivision of the state, the
122-1 federal government, or a foreign country;
122-2 (2) for the payment of any expenses of administration,
122-3 including sums necessary for the operation of a business, farm, or
122-4 ranch owned by the estate;
122-5 (3) for the payment of any claims allowed and
122-6 approved, or established by suit, against the ward or the estate of
122-7 the ward;
122-8 (4) to renew and extend a valid, existing lien;
122-9 (5) to make improvements or repairs to the real estate
122-10 of the ward if:
122-11 (A) the real estate of the ward is not revenue
122-12 producing but could be made revenue producing by certain
122-13 improvements and repairs; or
122-14 (B) the revenue from the real estate could be
122-15 increased by making improvements or repairs to the real estate;
122-16 (6) court-authorized borrowing of money that the court
122-17 finds to be in the best interests of the ward for the purchase of a
122-18 residence for the ward or a dependent of the ward; and
122-19 (7) if the guardianship is kept open after the death
122-20 of the ward, funeral expenses of the ward and expenses of the
122-21 ward's last illness.
122-22 (b) When it is necessary to borrow money for any of the
122-23 purposes authorized under Subsection (a) of this section, or to
122-24 create or extend a lien on property of the estate as security, a
122-25 sworn application for the authority to borrow money shall be filed
122-26 with the court, stating fully and in detail the circumstances that
122-27 the guardian of the estate believes make necessary the granting of
123-1 the authority. On the filing of an application under this
123-2 subsection, the clerk shall issue and cause to be posted a citation
123-3 to all interested persons, stating the nature of the application
123-4 and requiring the interested persons to appear and show cause why
123-5 the application should not be granted.
123-6 (c) If the court is satisfied by the evidence adduced at the
123-7 hearing on the application that it is in the interest of the ward
123-8 or the ward's estate to borrow money under Subsection (b) of this
123-9 section, or to extend and renew an existing lien, the court shall
123-10 issue an order to that effect, setting out the terms and conditions
123-11 of the authority granted. The term of the loan or renewal shall be
123-12 for the length of time that the court determines to be for the best
123-13 interests of the ward or the ward's estate. If a new lien is
123-14 created on the property of a guardianship estate, the court may
123-15 require that the guardian's general bond be increased, or that an
123-16 additional bond be given, for the protection of the guardianship
123-17 estate and its creditors, as for the sale of real property
123-18 belonging to the estate.
123-19 Sec. 782. POWERS, DUTIES, AND OBLIGATIONS OF GUARDIAN OF
123-20 PERSON ENTITLED TO GOVERNMENT FUNDS. (a) A guardian of the person
123-21 for whom it is necessary to have a guardian appointed to receive
123-22 funds from a governmental agency has the power to administer only
123-23 the funds received from the governmental agency, all earnings,
123-24 interest, or profits derived from the funds, and all property
123-25 acquired with the funds. The guardian has the power to receive the
123-26 funds and pay out the expenses of administering the guardianship
123-27 and the expenses for the support, maintenance, or education of the
124-1 ward or the ward's dependents. Expenditures for the support,
124-2 maintenance, or education of the ward or the ward's dependents may
124-3 not exceed $10,000 during any 12-month period without the court's
124-4 approval.
124-5 (b) All acts performed before September 1, 1993, by
124-6 guardians of the estate of a person for whom it is necessary to
124-7 have a guardian appointed to receive and disburse funds that are
124-8 due the person from a governmental source or agency are validated
124-9 if the acts are performed in conformance with orders of a court
124-10 that has venue with respect to the support, maintenance, and
124-11 education of the ward or the ward's dependents and the investment
124-12 of surplus funds of the ward under this chapter and if the validity
124-13 of the act is not an issue in a probate proceeding or civil lawsuit
124-14 that is pending on September 1, 1993.
124-15 SUBPART G. CLAIMS PROCEDURES
124-16 Sec. 783. NOTICE BY GUARDIAN OF APPOINTMENT. (a) Within
124-17 one month after receiving letters, personal representatives of
124-18 estates shall send to the comptroller of public accounts by
124-19 certified or registered mail if the decedent remitted or should
124-20 have remitted taxes administered by the comptroller of public
124-21 accounts and publish in some newspaper, printed in the county where
124-22 the letters were issued, if there be one, a notice requiring all
124-23 persons having claims against the estate being administered to
124-24 present the same within the time prescribed by law. The notice
124-25 must include the time of issuance of letters held by the
124-26 representative, the address to which claims may be presented, and
124-27 an instruction of the representative's choice that claims be
125-1 addressed in care of the representative, in care of the
125-2 representative's attorney, or in care of "Representative, Estate of
125-3 _________________" (naming the estate).
125-4 (b) A copy of the printed notice, with the affidavit of the
125-5 publisher, duly sworn to and subscribed before a proper officer, to
125-6 the effect that the notice was published as provided in this
125-7 chapter for the service of citation or notice by publication, shall
125-8 be filed in the court in which the cause is pending.
125-9 (c) When no newspaper is printed in the county, the notice
125-10 shall be posted and the return made and filed as required by this
125-11 chapter.
125-12 Sec. 784. NOTICE TO HOLDERS OF RECORDED CLAIMS. (a) Within
125-13 four months after receiving letters, the guardian of an estate
125-14 shall give notice of the issuance of the letters to each and every
125-15 person having a claim for money against the estate of a ward if the
125-16 claim is secured by a deed of trust, mortgage, or vendor's,
125-17 mechanic's or other contractor's lien on real estate belonging to
125-18 the estate.
125-19 (b) Within four months after receiving letters, the guardian
125-20 of an estate shall give notice of the issuance of the letters to
125-21 each person having an outstanding claim for money against the
125-22 estate of a ward if the guardian has actual knowledge of the claim.
125-23 (c) The notice stating the original grant of letter shall be
125-24 given by mailing the notice by certified mail or registered letter,
125-25 with return receipt requested, addressed to the record holder of
125-26 the indebtedness or claim at the last known post office address of
125-27 the record holder.
126-1 (d) A copy of each notice required by Subsection (a) of this
126-2 section, with the return receipt and an affidavit of the
126-3 representative, stating that the notice was mailed as required by
126-4 law, giving the name of the person to whom the notice was mailed,
126-5 if not shown on the notice or receipt, shall be filed in the court
126-6 from which letters were issued.
126-7 Sec. 785. ONE NOTICE SUFFICIENT; PENALTY FOR FAILURE TO GIVE
126-8 NOTICE. (a) If the notice required by Section 784 of this code
126-9 has been given by a former representative, or by one when several
126-10 representatives are acting, the notice given by the former
126-11 representative or co-representative is sufficient and need not be
126-12 repeated by any successor or co-representative.
126-13 (b) If the guardian fails to give the notice required in
126-14 other sections of this chapter or to cause the notices to be given,
126-15 the guardian and the sureties on the bond of the guardian shall be
126-16 liable for any damage that any person suffers because of the
126-17 neglect, unless it appears that the person had notice otherwise.
126-18 Sec. 786. Claims Against Wards. (a) A claim may be
126-19 presented to the guardian of the estate at any time when the estate
126-20 is not closed and when suit on the claim has not been barred by the
126-21 general statutes of limitation.
126-22 (b) A claim against a ward on which a suit is barred by a
126-23 general statute of limitation applicable to the claim may not be
126-24 allowed by a guardian. If allowed by the guardian and the court is
126-25 satisfied that limitation has run, the claim shall be disapproved.
126-26 Sec. 787. Tolling of General Statutes of Limitation. The
126-27 general statutes of limitation are tolled:
127-1 (1) by filing a claim that is legally allowed and
127-2 approved; or
127-3 (2) by bringing a suit on a rejected and disapproved
127-4 claim not later than the 90th day after the date of rejection or
127-5 disapproval.
127-6 Sec. 788. Claims Must Be Authenticated. Except as provided
127-7 by this section, with respect to the payment of an unauthenticated
127-8 claim by a guardian, a guardian of the estate may not allow and the
127-9 court may not approve a claim for money against the estate, unless
127-10 the claim is supported by an affidavit that the claim is just and
127-11 that all legal offsets, payments, and credits known to the affiant
127-12 have been allowed. If the claim is not founded on a written
127-13 instrument or account, the affidavit must also state the facts on
127-14 which the claim is founded. A photostatic copy of an exhibit or
127-15 voucher necessary to prove a claim under this section may be
127-16 offered with and attached to the claim instead of the original.
127-17 Sec. 789. When Defects of Form Are Waived. Any defect of
127-18 form or claim of insufficiency of exhibits or vouchers presented is
127-19 deemed waived by the guardian unless written objection to the form,
127-20 exhibit, or voucher is made not later than the 30th day after the
127-21 date of presentment of the claim and is filed with the county
127-22 clerk.
127-23 Sec. 790. Evidence Concerning Lost or Destroyed Claims. If
127-24 evidence of a claim is lost or destroyed, the claimant or a
127-25 representative of the claimant may make affidavit to the fact of
127-26 the loss or destruction, stating the amount, date, and nature of
127-27 the claim and when due, that the claim is just, that all legal
128-1 offsets, payments, and credits known to the affiant have been
128-2 allowed, and that the claimant is still the owner of the claim.
128-3 The claim must be proved by disinterested testimony taken in open
128-4 court, or by oral or written deposition, before the claim is
128-5 approved. If the claim is allowed or approved without the
128-6 affidavit or if the claim is approved without satisfactory proof,
128-7 the allowance or approval is void.
128-8 Sec. 791. Authentication of Claim by Others Than Individual
128-9 Owners. The cashier, treasurer, or managing official of a
128-10 corporation shall make the affidavit required to authenticate a
128-11 claim of the corporation. When an affidavit is made by an officer
128-12 of a corporation, or by an executor, administrator, guardian,
128-13 trustee, assignee, agent, or attorney, it is sufficient to state in
128-14 the affidavit that the person making the affidavit has made
128-15 diligent inquiry and examination and that the person believes that
128-16 the claim is just and that all legal offsets, payments, and credits
128-17 made known to the person making the affidavit have been allowed.
128-18 Sec. 792. Guardian's Payment of Unauthenticated Claims. A
128-19 guardian may pay an unauthenticated claim against the estate of the
128-20 guardian's ward that the guardian believes to be just, but the
128-21 guardian and the sureties on the bond of the guardian shall be
128-22 liable for the amount of any payment of the claim if the court
128-23 finds that the claim is not just.
128-24 Sec. 793. Method of Handling Secured Claims. (a) When a
128-25 secured claim against a ward is presented, the claimant shall
128-26 specify in the claim, in addition to all other matters required to
128-27 be specified in claims:
129-1 (1) whether the claim shall be allowed and approved as
129-2 a matured secured claim to be paid in due course of administration,
129-3 in which event it shall be so paid if allowed and approved; or
129-4 (2) whether the claim shall be allowed, approved, and
129-5 fixed as a preferred debt and lien against the specific property
129-6 securing the indebtedness and paid according to the terms of the
129-7 contract that secured the lien, in which event it shall be so
129-8 allowed and approved if it is a valid lien; provided however, the
129-9 guardian may pay the claim prior to maturity if it is in the best
129-10 interests of the estate to do so.
129-11 (b) If a secured claim is not presented within the time
129-12 provided by law, it shall be treated as a claim to be paid in
129-13 accordance with Subsection (a)(2) of this section.
129-14 (c) When an indebtedness has been allowed and approved under
129-15 Subsection (a)(2) of this section, no further claim shall be made
129-16 against other assets of the estate because of the indebtedness, but
129-17 the claim remains a preferred lien against the property securing
129-18 the claim, and the property remains security for the debt in any
129-19 distribution or sale of the property before final maturity and
129-20 payment of the debt.
129-21 (d) If property that secures a claim allowed, approved, and
129-22 fixed under Subsection (a)(2) of this section is not sold or
129-23 distributed not later than the 12th month after the date letters of
129-24 guardianship are granted, the guardian of the estate shall promptly
129-25 pay all maturities that have accrued on the debt according to the
129-26 terms of the maturities and shall perform all the terms of any
129-27 contract securing the maturities. If the guardian defaults in the
130-1 payment or performance, the court, on motion of the claim holder,
130-2 shall require the sale of the property subject to the unmatured
130-3 part of the debt and apply the proceeds of the sale to the
130-4 liquidation of the maturities or, at the option of the claim
130-5 holder, a motion may be made in a like manner to require the sale
130-6 of the property free of the lien and to apply the proceeds to the
130-7 payment of the whole debt.
130-8 Sec. 794. Claims Providing for Attorney's Fees. If the
130-9 instrument that evidences or supports a claim provides for
130-10 attorney's fees, the claimant may include as a part of the claim
130-11 the portion of the fee that the claimant has paid or contracted to
130-12 pay to an attorney to prepare, present, and collect the claim.
130-13 Sec. 795. Depositing Claims With Clerk. A claim may also be
130-14 presented by depositing the claim, with vouchers and necessary
130-15 exhibits and affidavit attached to the claim, with the clerk. The
130-16 clerk, on receiving the claim, shall advise the guardian of the
130-17 estate or the guardian's attorney by letter mailed to the last
130-18 known address of the guardian of the deposit of the claim. If the
130-19 guardian fails to act on the claim within 30 days after it is
130-20 filed, the claim is presumed to be rejected. Failure of the clerk
130-21 to give notice as required under this section does not affect the
130-22 validity of the presentment or the presumption of rejection of the
130-23 claim because not acted on within the 30-day period.
130-24 Sec. 796. Memorandum of Allowance or Rejection of Claim.
130-25 When a duly authenticated claim against a guardianship estate is
130-26 presented to the guardian or filed with the clerk as provided by
130-27 this subpart, the guardian shall, not later than the 30th day after
131-1 the date the claim is presented or filed, endorse or annex to the
131-2 claim a memorandum signed by the guardian stating the time of
131-3 presentation or filing of the claim and that the guardian allows or
131-4 rejects the claim, or what portion of the claim the guardian allows
131-5 or rejects.
131-6 Sec. 797. Failure to Endorse or Annex Memorandum. The
131-7 failure of a guardian of an estate to endorse on or annex to a
131-8 claim presented to the guardian, or the failure of a guardian to
131-9 allow or reject the claim or portion of the claim within 30 days
131-10 after the claim was presented constitutes a rejection of the claim.
131-11 If the claim is later established by suit, the costs shall be taxed
131-12 against the guardian, individually, or the guardian may be removed
131-13 as in other cases of removal on the written complaint of any person
131-14 interested in the claim, after personal service of citation,
131-15 hearing, and proof.
131-16 Sec. 798. Claims Entered In Docket. After a claim against a
131-17 ward's estate has been presented to and allowed by the guardian,
131-18 either in whole or in part, the claim shall be filed with the
131-19 county clerk of the proper county who shall enter it on the claim
131-20 docket.
131-21 Sec. 799. Contest of Claims, Action by Court, and Appeals.
131-22 (a) Any person interested in a ward, at any time before the court
131-23 has acted on a claim, may appear and object in writing to the
131-24 approval of the claim, or any part of the claim. The parties are
131-25 entitled to process for witnesses, and the court shall hear proof
131-26 and render judgment as in ordinary suits.
131-27 (b) The court shall either approve in whole or in part or
132-1 reject a claim that has been allowed and entered on the claim
132-2 docket for a period of 10 days and shall at the same time classify
132-3 the claim.
132-4 (c) Although a claim may be properly authenticated and
132-5 allowed, if the court is not satisfied that it is just, the court
132-6 shall examine the claimant and the guardian under oath and hear
132-7 other evidence necessary to determine the issue. If after the
132-8 examination and hearing the court is not convinced that the claim
132-9 is just, the court shall disapprove the claim.
132-10 (d) When the court has acted on a claim, the court shall
132-11 endorse on or annex to the claim a written memorandum dated and
132-12 signed officially that states the exact action taken by the court
132-13 on the claim, whether the court approved or disapproved the claim
132-14 or approved in part or rejected in part the claim, and that states
132-15 the classification of the claim. An order under this subsection
132-16 has the force and effect of a final judgment.
132-17 (e) When a claimant or any person interested in a ward is
132-18 dissatisfied with the action of the court on a claim, the claimant
132-19 or person interested may appeal the action to the courts of
132-20 appeals, as from other judgments of the county court in probate
132-21 matters.
132-22 Sec. 800. SUIT ON REJECTED CLAIM. When a claim or a part of
132-23 a claim has been rejected by the guardian, the claimant shall
132-24 institute suit on the claim in the court of original probate
132-25 jurisdiction in which the guardianship is pending or in any other
132-26 court of proper jurisdiction not later than the 90th day after the
132-27 date of the rejection of the claim or the claim is barred. When a
133-1 rejected claim is sued on, the endorsement made on or annexed to
133-2 the claim is taken to be true without further proof, unless denied
133-3 under oath. When a rejected claim or part of a claim has been
133-4 established by suit, no execution shall issue but the judgment
133-5 shall be certified not later than the 30th day after the date of
133-6 rendition if the judgment is from a court other than the court of
133-7 original probate jurisdiction, filed in the court in which the
133-8 cause is pending entered on the claim docket, classified by the
133-9 court, and handled as if originally allowed and approved in due
133-10 course of administration.
133-11 Sec. 801. Presentment of Claims a Prerequisite for Judgment.
133-12 A judgment may not be rendered in favor of a claimant on any claim
133-13 for money that has not been legally presented to the guardian of
133-14 the estate of the ward and rejected by the guardian or by the
133-15 court, in whole or in part.
133-16 Sec. 802. Costs of Suit With Respect to Claims. All costs
133-17 incurred in the probate court with respect to claims are taxed as
133-18 follows:
133-19 (1) if allowed and approved, the guardianship estate
133-20 shall pay the costs;
133-21 (2) if allowed, but disapproved, the claimant shall
133-22 pay the costs;
133-23 (3) if rejected, but established by suit, the
133-24 guardianship estate shall pay the costs;
133-25 (4) if rejected, but not established by suit, the
133-26 claimant shall pay the costs; or
133-27 (5) in suits to establish a claim after rejection in
134-1 part, if the claimant fails to recover judgment for a greater
134-2 amount than was allowed or approved, the claimant shall pay all
134-3 costs.
134-4 Sec. 803. Claims by Guardians. (a) A claim that a guardian
134-5 of the person or estate held against the ward at the time of the
134-6 appointment of the guardian, or that has since accrued, shall be
134-7 verified by affidavit as required in other cases and presented to
134-8 the clerk of the court in which the guardianship is pending. The
134-9 clerk shall enter the claim on the claim docket, after which it
134-10 shall take the same course as other claims.
134-11 (b) When a claim by a guardian has been filed with the court
134-12 within the required time, the claim shall be entered on the claim
134-13 docket and acted on by the court in the same manner as in other
134-14 cases. When the claim has been acted on by the court, an appeal
134-15 from the judgment of the court may be taken as in other cases.
134-16 Sec. 804. Claims Not to Be Paid Unless Approved. Except as
134-17 provided for payment at the risk of a guardian of an
134-18 unauthenticated claim, a claim for money against the estate of a
134-19 ward or any part of a claim may not be paid until it has been
134-20 approved by the court or established by the judgment of a court of
134-21 competent jurisdiction.
134-22 Sec. 805. Order of Payment of Claims. (a) The guardian
134-23 shall pay a claim against the estate of the guardian's ward that
134-24 has been allowed and approved or established by suit, as soon as
134-25 practicable, in the following order:
134-26 (1) expenses for the care, maintenance, and education
134-27 of the ward or the ward's dependents;
135-1 (2) funeral expenses of the ward and expenses of the
135-2 ward's last illness, if the guardianship is kept open after the
135-3 death of the ward as provided under this chapter, except that any
135-4 claim against the estate of a ward that has been allowed and
135-5 approved or established by suit before the death of the ward shall
135-6 be paid before the funeral expenses and expenses of the last
135-7 illness;
135-8 (3) expenses of administration; and
135-9 (4) other claims against the ward or the ward's
135-10 estate.
135-11 (b) A claimant whose claim has not been paid may petition
135-12 the court for determination of the claim at any time before it is
135-13 barred by the applicable statute of limitations and on due proof
135-14 procure an order for its allowance and payment from the estate.
135-15 Sec. 806. Deficiency of Assets. When there is a deficiency
135-16 of assets to pay all claims of the same class, the claims in the
135-17 same class shall be paid pro rata, as directed by the court, and in
135-18 the order directed. A guardian may not be allowed to pay any
135-19 claims, whether the estate is solvent or insolvent, except with the
135-20 pro rata amount of the funds of the guardianship estate that have
135-21 come to hand.
135-22 Sec. 807. GUARDIAN NOT TO PURCHASE CLAIMS. A guardian may
135-23 not purchase for the guardian's own use or for any purposes
135-24 whatsoever a claim against the guardianship the guardian
135-25 represents. On written complaint by a person interested in the
135-26 guardianship estate and satisfactory proof of violation of this
135-27 provision, the court after citation and hearing shall enter its
136-1 order cancelling the claim and no part of the claim shall be paid
136-2 out of the guardianship. The judge may remove the guardian for a
136-3 violation of this section.
136-4 Sec. 808. PROCEEDS OF SALE OF MORTGAGED PROPERTY. When a
136-5 guardian has on hand the proceeds of a sale that has been made for
136-6 the satisfaction of a mortgage or other lien and the proceeds, or
136-7 any part of the proceeds, are not required for the payment of any
136-8 debts against the estate that have a preference over the mortgage
136-9 or other lien, the guardian shall pay the proceeds to a holder of
136-10 the mortgage or other lien. If the guardian fails to pay the
136-11 proceeds as required by this section, the holder, on proof of the
136-12 mortgage or other lien, may obtain an order from the court
136-13 directing the payment to be made.
136-14 Sec. 809. Liability for Nonpayment of Claims. (a) If a
136-15 guardian of an estate fails to pay on demand any money ordered by
136-16 the court to be paid to any person, except to the state treasury,
136-17 when there are funds of the guardianship estate available, the
136-18 person or claimant entitled to the payment, on affidavit of the
136-19 demand and failure to pay, is authorized to have execution issued
136-20 against the property of the guardianship for the amount due, with
136-21 interest and costs.
136-22 (b) On return of the execution not satisfied, or merely on
136-23 the affidavit of demand and failure to pay, the court may cite the
136-24 guardian and the sureties on the bond of the guardian to show cause
136-25 why the guardian or the sureties should not be held liable for the
136-26 debt, interest, costs, or damages. On return of citation duly
136-27 served, if good cause to the contrary is not shown, the court shall
137-1 render judgment against the guardian and sureties that are cited
137-2 under this subsection in favor of the holder of the claim for the
137-3 unpaid amount ordered to be paid or established by suit, with
137-4 interest and costs, and for damages on the amount neglected to be
137-5 paid, at the rate of five percent per month for each month or
137-6 fraction of a month that the payment was neglected to be paid after
137-7 demand was made for payment. The damages may be collected in any
137-8 court of competent jurisdiction.
137-9 SUBPART H. SALES
137-10 Sec. 811. Court Must Order Sales. Except as provided by
137-11 this subpart, the sale of any property of the ward may not be made
137-12 without an order of court authorizing the sale. The court may
137-13 order property sold for cash or on credit, at public auction or
137-14 privately, as it may consider most to the advantage of the estate,
137-15 except when otherwise specifically provided in this chapter.
137-16 Sec. 812. Certain Personal Property to Be Sold. The
137-17 guardian of an estate, after approval of inventory and
137-18 appraisement, shall promptly apply for an order of the court to
137-19 sell at public auction or privately, for cash or on credit not
137-20 exceeding six months, all of the estate that is liable to perish,
137-21 waste, or deteriorate in value or that will be an expense or
137-22 disadvantage to the estate if kept. A bond, security, or other
137-23 personal property deemed by the court not to be so liable, property
137-24 exempt from forced sale, a specific legacy, or personal property
137-25 necessary to carry on a farm, ranch, factory, or any other business
137-26 that it is thought best to operate, may not be included in a sale
137-27 under this section.
138-1 Sec. 813. Sales of Other Personal Property. On application
138-2 by the guardian of the estate or by any interested person, the
138-3 court may order the sale of any personal property of the estate not
138-4 required to be sold by Section 812 of this code, including growing
138-5 or harvested crops or livestock but not including exempt property,
138-6 if the court finds that the sale of the property would be in the
138-7 best interests of the ward or the ward's estate in order to pay
138-8 expenses of the care, maintenance, and education of the ward or the
138-9 ward's dependents, expenses of administration, allowances, or
138-10 claims against the ward or the ward's estate, and funeral expenses
138-11 of the ward and expenses of the ward's last illness, if the
138-12 guardianship is kept open after the death of the ward, from the
138-13 proceeds of the sale of the property. Insofar as possible,
138-14 applications and orders for the sale of personal property must
138-15 conform to the requirements set forth under this chapter for
138-16 applications and orders for the sale of real estate.
138-17 Sec. 814. Special Provisions Pertaining to Livestock. When
138-18 the guardian of an estate has in the guardian's possession any
138-19 livestock that the guardian deems necessary or to the advantage of
138-20 the estate to sell, the guardian may, in addition to any other
138-21 method provided by law for the sale of personal property, obtain
138-22 authority from the court in which the estate is pending to sell the
138-23 livestock through a bonded livestock commission merchant or a
138-24 bonded livestock auction commission merchant. On written and sworn
138-25 application by the guardian or by any person interested in the
138-26 estate that describes the livestock sought to be sold and that sets
138-27 out the reasons why it is deemed necessary or to the advantage of
139-1 the estate that the application be granted, the court may authorize
139-2 the sale. The court shall consider the application and may hear
139-3 evidence for or against the application, with or without notice, as
139-4 the facts warrant. If the application is granted, the court shall
139-5 enter its order to that effect and shall authorize delivery of the
139-6 livestock to any bonded livestock commission merchant or bonded
139-7 livestock auction commission merchant for sale in the regular
139-8 course of business. The commission merchant shall be paid his
139-9 usual and customary charges, not to exceed three percent of the
139-10 sale price, for the sale of the livestock. A report of the sale,
139-11 supported by a verified copy of the merchant's account of sale,
139-12 shall be made promptly by the guardian to the court, but no order
139-13 of confirmation by the court is required to pass title to the
139-14 purchaser of the livestock.
139-15 Sec. 815. Sales of Personal Property at Public Auction. All
139-16 sales of personal property at public auction shall be made after
139-17 notice has been issued by the guardian of the estate and posted as
139-18 in case of posting for original proceedings in probate, unless the
139-19 court shall otherwise direct.
139-20 Sec. 816. Sales of Personal Property on Credit. No more
139-21 than six months' credit may be allowed when personal property is
139-22 sold at public auction, based on the date of the sale. The
139-23 purchaser shall be required to give his note for the amount due,
139-24 with good and solvent personal security, before delivery of the
139-25 property can be made to the purchaser, but security may be waived
139-26 if delivery is not to be made until the note, with interest, has
139-27 been paid.
140-1 Sec. 817. SALE OF MORTGAGED PROPERTY. On the filing of a
140-2 written application, a creditor who holds a claim that is secured
140-3 by a valid mortgage or other lien and that has been allowed and
140-4 approved or established by suit may obtain from the court in which
140-5 the guardianship is pending an order that the property, or so much
140-6 of the property as necessary to satisfy the creditor's claim, shall
140-7 be sold. On the filing of the application, the clerk shall issue
140-8 citation requiring the guardian of the estate to appear and show
140-9 cause why an application filed under this section should not be
140-10 granted. If it appears to the court that it would be advisable to
140-11 discharge the lien out of the general assets of the estate or that
140-12 it be refinanced, the court may so order. Otherwise, the court
140-13 shall grant the application and order that the property be sold at
140-14 public or private sale, as the court considers best, as in ordinary
140-15 cases of sales of real estate.
140-16 Sec. 818. Sales of Personal Property Reported; Decree Vests
140-17 Title. All sales of personal property shall be reported to the
140-18 court. The laws regulating the confirmation or disapproval of
140-19 sales of real estate apply to sales of personal property, but no
140-20 conveyance shall be necessary. The decree confirming the sale of
140-21 personal property shall vest the right and title of the estate of
140-22 the ward in the purchaser who has complied with the terms of the
140-23 sale and shall be prima facie evidence that all requirements of the
140-24 law in making the sale have been met. The guardian of an estate
140-25 may, on request, issue a bill of sale without warranty to the
140-26 purchaser as evidence of title. The expense of the bill of sale if
140-27 requested is to be borne by the purchaser.
141-1 Sec. 819. Selection of Real Property Sold for Payment of
141-2 Debts. Real property of the ward that is selected to be sold for
141-3 the payment of expenses or claims shall be that property that the
141-4 court deems most advantageous to the guardianship to be sold.
141-5 Sec. 820. Application for Sale of Real Estate. An
141-6 application may be made to the court for an order to sell real
141-7 property of the estate when it appears necessary or advisable in
141-8 order to:
141-9 (1) pay expenses of administration, allowances, and
141-10 claims against the ward or the ward's estate, and to pay funeral
141-11 expenses of the ward and expenses of the ward's last illness, if
141-12 the guardianship is kept open after the death of the ward;
141-13 (2) make up the deficiency when the income of a ward's
141-14 estate, the personal property of the ward's estate, and the
141-15 proceeds of previous sales, are insufficient to pay for the
141-16 education and maintenance of the ward or to pay debts against the
141-17 estate;
141-18 (3) dispose of property of the ward's estate that
141-19 consists in whole or in part of an undivided interest in real
141-20 estate when it is deemed in the best interests of the estate to
141-21 sell the interest;
141-22 (4) dispose of real estate of a ward, any part of
141-23 which is nonproductive or does not produce sufficient revenue to
141-24 make a fair return on the value of the real estate, when the
141-25 improvement of the real estate with a view to making it productive
141-26 is not deemed advantageous or advisable and it appears that the
141-27 sale of the real estate and the investment of the money derived
142-1 from the sale of the real estate would be in the best interests of
142-2 the estate; or
142-3 (5) conserve the estate of a ward by selling mineral
142-4 interest or royalties on minerals in place owned by a ward.
142-5 Sec. 821. CONTENTS OF APPLICATION FOR SALE OF REAL ESTATE.
142-6 An application for the sale of real estate shall be in writing,
142-7 must describe the real estate or an interest in or part of the real
142-8 estate sought to be sold, and shall be accompanied by an exhibit,
142-9 verified by affidavit that shows fully and in detail:
142-10 (1) the condition of the estate;
142-11 (2) the charges and claims that have been approved or
142-12 established by suit, or that have been rejected and may be
142-13 established later;
142-14 (3) the amount of each claim that has been approved or
142-15 established by suit, or that has been rejected but may be
142-16 established later;
142-17 (4) the property of the estate remaining on hand
142-18 liable for the payment of those claims; and
142-19 (5) any other facts that show the necessity or
142-20 advisability of the sale.
142-21 Sec. 822. Setting of Hearing on Application. When an
142-22 application for the sale of real estate is filed, it shall
142-23 immediately be called to the attention of the judge by the clerk.
142-24 The judge shall designate in writing a day for hearing the
142-25 application, any opposition to the application, and any application
142-26 for the sale of other land, with the evidence pertaining to the
142-27 application. The judge may, by entries on the docket, continue the
143-1 hearing from time to time until the judge is satisfied concerning
143-2 the application.
143-3 Sec. 823. CITATION AND RETURN ON APPLICATION. On the filing
143-4 of an application for the sale of real estate under Section 820 of
143-5 this code and exhibit, the clerk shall issue a citation to all
143-6 persons interested in the guardianship that describes the land or
143-7 interest or part of the land or interest sought to be sold and that
143-8 requires the persons to appear at the time set by the court as
143-9 shown in the citation and show cause why the sale should not be
143-10 made, if they so elect. Service of citation shall be by posting.
143-11 Sec. 824. Opposition to Application. When an application
143-12 for an order of sale is made, a person interested in the
143-13 guardianship, before an order of sale is made by the court, may
143-14 file the person's opposition to the sale, in writing, or may make
143-15 application for the sale of other property of the estate.
143-16 Sec. 825. ORDER OF SALE. If satisfied on hearing that the
143-17 sale of the property of the guardianship described in the
143-18 application made under Section 820 of this code is necessary or
143-19 advisable, the court shall order the sale to be made. Otherwise,
143-20 the court may deny the application and, if the court deems best,
143-21 may order the sale of other property the sale of which would be
143-22 more advantageous to the estate. An order for the sale of real
143-23 estate must specify:
143-24 (1) the property to be sold, giving a description that
143-25 will identify the property;
143-26 (2) whether the property is to be sold at public
143-27 auction or at private sale, and, if at public auction, the time and
144-1 place of the sale;
144-2 (3) the necessity or advisability of the sale and its
144-3 purpose;
144-4 (4) except in cases in which no general bond is
144-5 required, that, having examined the general bond of the
144-6 representative of the estate, the court finds it to be sufficient
144-7 as required by law, or finds the bond to be insufficient and
144-8 specifies the necessary or increased bond;
144-9 (5) that the sale shall be made and the report
144-10 returned in accordance with law; and
144-11 (6) the terms of the sale.
144-12 Sec. 826. Procedure When Guardian Neglects to Apply for
144-13 Sale. When the guardian of an estate neglects to apply for an
144-14 order to sell sufficient property to pay the charges and claims
144-15 against the estate that have been allowed and approved or
144-16 established by suit, an interested person, on written application,
144-17 may cause the guardian to be cited to appear and make a full
144-18 exhibit of the condition of the estate, and show cause why a sale
144-19 of the property should not be ordered. On hearing an application
144-20 made under this section, if the court is satisfied that a sale of
144-21 the property is necessary or advisable in order to satisfy the
144-22 claims, it shall enter an order of sale as provided by Section 825
144-23 of this code.
144-24 Sec. 827. Permissible Terms of Sale of Real Estate. (a)
144-25 The real estate may be sold for cash, or for part cash and part
144-26 credit, or the equity in land securing an indebtedness may be sold
144-27 subject to the indebtedness, or with an assumption of the
145-1 indebtedness, at public or private sale, as appears to the court to
145-2 be in the best interests of the estate. When real estate is sold
145-3 partly on credit, the cash payment may not be less than one-fifth
145-4 of the purchase price, and the purchaser shall execute a note for
145-5 the deferred payments payable in monthly, quarterly, semiannual or
145-6 annual installments, of the amounts as appear to the court to be
145-7 for the best interests of the guardianship, to bear interest from
145-8 date at a rate of not less than four percent per annum, payable as
145-9 provided in the note. Default in the payment of principal or
145-10 interest, or any part of the payment when due, at the election of
145-11 the holder of the note, matures the whole debt. The note shall be
145-12 secured by vendor's lien retained in the deed and in the note on
145-13 the property sold and shall be further secured by deed of trust on
145-14 the property sold, with the usual provisions for foreclosure and
145-15 sale on failure to make the payments provided in the deed and
145-16 notes.
145-17 (b) When an estate owning real estate by virtue of
145-18 foreclosure of a vendor's lien or mortgage belonging to the estate
145-19 either by judicial sale or by a foreclosure suit, by sale under
145-20 deed of trust, or by acceptance of a deed in cancellation of a lien
145-21 or mortgage owned by the estate, and it appears to the court that
145-22 an application to redeem the property foreclosed on has been made
145-23 by the former owner of the real estate to any corporation or agency
145-24 created by any act of the Congress of the United States or of this
145-25 state in connection with legislation for the relief of owners of
145-26 mortgaged or encumbered homes, farms, ranches, or other real estate
145-27 and that it would be in the best interests of the estate to own
146-1 bonds of one of the above named federal or state corporations or
146-2 agencies instead of the real estate, then on proper application and
146-3 proof, the court may dispense with the provisions of credit sales
146-4 as provided by Subsection (a) of this section, and may order
146-5 reconveyance of the property to the former mortgage debtor, or
146-6 former owner, reserving vendor's lien notes for the total amount of
146-7 the indebtedness due or for the total amount of bonds that the
146-8 corporation or agency above named is under its rules and
146-9 regulations allowed to advance. On obtaining the order, it shall
146-10 be proper for the guardian to endorse and assign the notes so
146-11 obtained over to any one of the corporations or agencies above
146-12 named in exchange for bonds of that corporation or agency.
146-13 Sec. 828. Public Sale of Real Estate. (a) Except as
146-14 otherwise provided by this chapter, all public sales of real estate
146-15 shall be advertised by the guardian of the estate by a notice
146-16 published in the county in which the estate is pending, as provided
146-17 by this chapter for publication of notices or citations. A
146-18 reference in the notice shall be made to the order of sale, the
146-19 time, place, and the required terms of sale, and a brief
146-20 description of the property to be sold. A reference made under
146-21 this section does not have to contain field notes, but if the real
146-22 estate consists of rural property, the name of the original survey,
146-23 the number of acres, its locality in the county, and the name by
146-24 which the land is generally known must be contained in the
146-25 reference.
146-26 (b) All public sales of real estate shall be made at public
146-27 auction to the highest bidder.
147-1 (c) All public sales of real estate shall be made in the
147-2 county in which the guardianship proceedings are pending, at the
147-3 courthouse door of the county, or at another place in the county
147-4 where sales of real estate are specifically authorized to be made,
147-5 on the first Tuesday of the month after publication of notice has
147-6 been completed, between the hours of 10 a.m. and 4 p.m. If deemed
147-7 advisable by the court, the court may order the sale to be made in
147-8 the county in which the land is located, in which event notice
147-9 shall be published both in that county and in the county in which
147-10 the proceedings are pending.
147-11 (d) If a sale is not completed on the day advertised, the
147-12 sale may be continued from day to day by making an oral public
147-13 announcement of the continuance at the conclusion of the sale each
147-14 day. The continued sale is to be made within the same hours as
147-15 prescribed by Subsection (c) of this section. If sales are so
147-16 continued, the fact shall be shown in the report of sale made to
147-17 the court.
147-18 (e) When a person who bids off property of a guardianship
147-19 estate offered for sale at public auction fails to comply with the
147-20 terms of sale, the property shall be readvertised and sold without
147-21 any further order. The person who defaults shall be liable to pay
147-22 to the guardian of the estate, for the benefit of the estate, 10
147-23 percent of the amount of the person's bid and any deficiency in
147-24 price on the second sale. The guardian shall recover the amounts
147-25 by suit in any court in the county in which the sale was made that
147-26 has jurisdiction over the amount claimed.
147-27 Sec. 829. Private Sale of Real Estate. All private sales of
148-1 real estate shall be made in the manner the court directs in its
148-2 order of sale, and no further advertising, notice, or citation
148-3 concerning the sale shall be required unless the court shall direct
148-4 otherwise.
148-5 Sec. 830. Sales of Easements and Rights of Way. The
148-6 guardian may sell and convey easements and rights of way on, under,
148-7 and over the land of a guardianship estate that is being
148-8 administered under orders of a court, regardless of whether the
148-9 proceeds of the sale are required for payment of charges or claims
148-10 against the estate, or for other lawful purposes. The procedure
148-11 for the sale is the same as provided by law for a sale of real
148-12 property of wards at private sale.
148-13 Sec. 831. Guardian Purchasing Property of the Estate. (a)
148-14 Except as provided by Subsection (b) of this section, the guardian
148-15 of an estate may not purchase, directly or indirectly, any property
148-16 of the estate sold by the guardian, or by any co-representative of
148-17 a guardian.
148-18 (b) A guardian may purchase property from the estate in
148-19 compliance with the terms of a written executory contract signed by
148-20 the ward before the ward became incapacitated, including a contract
148-21 for deed, earnest money contract, buy/sell agreement, or stock
148-22 purchase or redemption agreement.
148-23 (c) If a purchase is made in violation of this section, a
148-24 person interested in the estate may file a written complaint with
148-25 the court in which the guardianship proceedings are pending. On
148-26 service of citation on the guardian and after hearing and proof,
148-27 the court shall declare the sale void, set aside the sale, and
149-1 order that the property be reconveyed to the estate. All costs of
149-2 the sale, protest, and suit, if found necessary, shall be adjudged
149-3 against the guardian.
149-4 Sec. 832. REPORT OF SALE. A sale of real property of an
149-5 estate shall be reported to the court that orders the sale not
149-6 later than the 30th day after the date the sale is made. A report
149-7 must be in writing, sworn to, filed with the clerk, and noted on
149-8 the probate docket. A report made under this section must contain:
149-9 (1) the date of the order of sale;
149-10 (2) a description of the property sold;
149-11 (3) the time and place of sale;
149-12 (4) the name of the purchaser;
149-13 (5) the amount for which each parcel of property or
149-14 interest in the parcel of property was sold;
149-15 (6) the terms of the sale, and whether the sale was
149-16 private or made at a public auction; and
149-17 (7) whether the purchaser is ready to comply with the
149-18 order of sale.
149-19 Sec. 833. BOND ON SALE OF REAL ESTATE. If the guardian of
149-20 the estate is not required by this chapter to furnish a general
149-21 bond, the court may confirm the sale if the court finds the sale is
149-22 satisfactory and in accordance with law. Otherwise, before a sale
149-23 of real estate is confirmed, the court shall determine whether the
149-24 general bond of the guardian is sufficient to protect the estate
149-25 after the proceeds of the sale are received. If the court finds
149-26 the bond is sufficient, the court may confirm the sale. If the
149-27 general bond is found by the court to be insufficient, the court
150-1 may not confirm the sale until the general bond is increased to the
150-2 amount required by the court, or an additional bond is given and
150-3 approved by the court. The increase in the amount of the bond, or
150-4 the additional bond, shall be equal to the amount for which the
150-5 real estate is sold in addition to any additional sum the court
150-6 finds necessary and sets for the protection of the estate. If the
150-7 real estate sold is encumbered by a lien to secure a claim against
150-8 the estate, is sold to the owner or holder of the secured claim,
150-9 and is in full payment, liquidation, and satisfaction of the claim,
150-10 an increased general bond or additional bond may not be required
150-11 except for the amount of cash actually paid to the guardian of the
150-12 estate in excess of the amount necessary to pay, liquidate, and
150-13 satisfy the claim in full.
150-14 Sec. 834. ACTION OF COURT ON REPORT OF SALE. After the
150-15 expiration of five days from the date a report of sale is filed
150-16 under Section 832 of this code, the court shall inquire into the
150-17 manner in which the sale was made, hear evidence in support of or
150-18 against the report, and determine the sufficiency or insufficiency
150-19 of the guardian's general bond, if any has been required and given.
150-20 If the court is satisfied that the sale was for a fair price, was
150-21 properly made, and conforms with the law and the court has approved
150-22 any increased or additional bond that may have been found necessary
150-23 to protect the estate, the court shall enter a decree confirming
150-24 the sale showing conformity with other provisions of this chapter
150-25 relating to the sale and authorizing the conveyance of the property
150-26 to be made by the guardian of the estate on compliance by the
150-27 purchaser with the terms of the sale, detailing those terms. If
151-1 the court is not satisfied that the sale was for a fair price, was
151-2 properly made, and conforms with the law, the court shall issue an
151-3 order that sets the sale aside and order a new sale to be made, if
151-4 necessary. The action of the court in confirming or disapproving a
151-5 report of sale has the force and effect of a final judgment. Any
151-6 person interested in the guardianship estate or in the sale has the
151-7 right to have the decrees reviewed as in other final judgments in
151-8 probate proceedings.
151-9 Sec. 835. DEED CONVEYS TITLE TO REAL ESTATE. When real
151-10 estate is sold, the conveyance of real estate shall be by proper
151-11 deed that refers to and identifies the decree of the court that
151-12 confirmed the sale. The deed shall vest in the purchaser all
151-13 right, title, and interest of the estate to the property and shall
151-14 be prima facie evidence that the sale has met all applicable
151-15 requirements of the law.
151-16 Sec. 836. Delivery of Deed, Vendor's Lien, and Deed of Trust
151-17 Lien. After a sale is confirmed by the court and one purchaser has
151-18 complied with the terms of sale, the guardian of the estate shall
151-19 execute and deliver to the purchaser a proper deed conveying the
151-20 property. If the sale is made partly on credit, the vendor's lien
151-21 securing a purchase money note shall be expressly retained in the
151-22 deed and may not be waived. Before actual delivery of the deed to
151-23 the purchaser, the purchaser shall execute and deliver to the
151-24 guardian of the estate a vendor's lien note, with or without
151-25 personal sureties as the court has ordered and a deed of trust or
151-26 mortgage on the property as further security for the payment of the
151-27 note. On completion of the transaction, the guardian shall
152-1 promptly file and record in the appropriate records in the county
152-2 where the land is located the deed of trust or mortgage.
152-3 Sec. 837. PENALTY FOR NEGLECT. If the guardian of an estate
152-4 neglects to comply with Section 836 of this code or fails to file
152-5 the deed of trust securing the lien in the proper county, the
152-6 guardian, after complaint and citation, may be removed. The
152-7 guardian and the sureties on the bond of the guardian shall be held
152-8 liable for the use of the estate and for all damages resulting from
152-9 the neglect of the guardian. Damages under this section may be
152-10 recovered in a court of competent jurisdiction.
152-11 SUBPART I. HIRING AND RENTING
152-12 Sec. 839. Hiring or Renting Without Order of Court. The
152-13 guardian of an estate, without court order, may rent any real
152-14 property of the estate or hire out any personal property of the
152-15 estate for one year or less, either at public auction or privately,
152-16 as may be deemed in the best interests of the estate.
152-17 Sec. 840. LIABILITY OF GUARDIAN. If property of the
152-18 guardianship estate is hired or rented without court order, on the
152-19 sworn complaint of any person interested in the estate, the
152-20 guardian of the estate shall be required to account to the estate
152-21 for the reasonable value of the hire or rent of the property to be
152-22 ascertained by the court on satisfactory evidence.
152-23 Sec. 841. ORDER TO HIRE OR RENT. A guardian of an estate
152-24 may file a written application with the court setting forth the
152-25 property sought to be hired or rented. If the proposed rental
152-26 period is one year or more, the guardian of the estate shall file a
152-27 written application with the court setting forth the property
153-1 sought to be hired or rented. If the court finds that it would be
153-2 in the interests of the estate, the court shall grant the
153-3 application and issue an order that describes the property to be
153-4 hired or rented and states whether the hiring or renting shall be
153-5 at public auction or privately, whether for cash or on credit, and,
153-6 if on credit, the extent of the credit and the period for which the
153-7 property may be rented. If the property is to be hired or rented
153-8 at public auction, the court shall prescribe whether notice shall
153-9 be published or posted.
153-10 Sec. 842. PROCEDURE IN CASE OF NEGLECT TO RENT PROPERTY. A
153-11 person interested in a guardianship may file a written and sworn
153-12 complaint in a court in which the estate is pending and cause the
153-13 guardian of the estate to be cited to appear and show cause why the
153-14 guardian did not hire or rent any property of the estate. The
153-15 court, on hearing the complaint, shall make an order that is in the
153-16 best interests of the estate.
153-17 Sec. 843. PROPERTY HIRED OR RENTED ON CREDIT. When property
153-18 is hired or rented on credit, possession of the property may not be
153-19 delivered until the hirer or renter has executed and delivered to
153-20 the guardian of the estate a note with good personal security for
153-21 the amount of the hire or rental. If the property that is hired or
153-22 rented is delivered without the receipt of the security required
153-23 under this section, the guardian and the sureties on the bond of
153-24 the guardian shall be liable for the full amount of the hire or
153-25 rental. This section does not apply to a hire or rental that is
153-26 paid in installments in advance of the period of time to which they
153-27 relate.
154-1 Sec. 844. PROPERTY HIRED OR RENTED RETURNED IN GOOD
154-2 CONDITION. All property that is hired or rented, with or without a
154-3 court order, shall be returned to the possession of the
154-4 guardianship in as good a condition, reasonable wear and tear
154-5 excepted, as when the property was hired or rented. It shall be
154-6 the duty and responsibility of the guardian of the estate to see
154-7 that the property is returned as provided by this section, to
154-8 report to the court any loss, damage, or destruction of property
154-9 that is hired or rented under this chapter, and to ask for
154-10 authority to take action as is necessary. If the guardian fails to
154-11 act as required by this section, the guardian and the sureties on
154-12 the bond of the guardian shall be liable to the guardianship for
154-13 any loss or damage suffered through the fault of the guardian to
154-14 act as required under this section.
154-15 Sec. 845. REPORT OF HIRING OR RENTING. (a) When any
154-16 property of the guardianship estate with an appraised value of
154-17 $3,000 or more has been hired or rented, the guardian of the
154-18 estate, not later than the 30th day after the date of the hire or
154-19 rental, shall file with the court a sworn and written report that
154-20 states:
154-21 (1) the property involved and its appraised value;
154-22 (2) the date of hiring or renting, and whether at
154-23 public auction or privately;
154-24 (3) the name of the person who hired or rented the
154-25 property;
154-26 (4) the amount of the hiring or rental; and
154-27 (5) whether the hiring or rental was for cash or on
155-1 credit, and, if on credit, the length of time, the terms, and the
155-2 security taken for the hiring or rental.
155-3 (b) When the value of the property involved is less than
155-4 $3,000, the hiring or renting of the property may be reported in
155-5 the next annual or final account that is to be filed as required by
155-6 law.
155-7 Sec. 846. Court Action on Report. After five days from the
155-8 time the report of the hiring or rental is filed, the court shall
155-9 examine the report and shall approve and confirm the hiring or
155-10 rental by court order if the court finds the hire or rental just
155-11 and reasonable. If the court disapproves the hiring or rental, the
155-12 guardianship may not be bound and the court may order another
155-13 offering of the property for hire or rent in the same manner and
155-14 subject to the same rules provided in this chapter for property for
155-15 hire or rent. If the report has been approved by the court and it
155-16 later appears that, due to the fault of the guardian of the estate,
155-17 the property has not been hired or rented for its reasonable value,
155-18 the court shall cause the guardian of the estate and the sureties
155-19 on the bond of the guardian to appear and show cause why the
155-20 reasonable value of the hire or rental of the property should not
155-21 be adjudged against the guardian or sureties.
155-22 SUBPART J. MINERAL LEASES, POOLING OR UNITIZATION AGREEMENTS,
155-23 AND OTHER MATTERS RELATING TO MINERAL PROPERTIES
155-24 Sec. 847. MINERAL LEASES AFTER PUBLIC NOTICE. (a) In this
155-25 subpart:
155-26 (1) "Land" or "interest in land" includes minerals or
155-27 any interest in any of the minerals in place.
156-1 (2) "Mineral development" includes exploration, by
156-2 geophysical or by any other means, drilling, mining, developing,
156-3 and operating, and producing and saving oil, other liquid
156-4 hydrocarbons, gas (including all liquid hydrocarbons in the gaseous
156-5 phase in the reservoir), gaseous elements, sulphur, metals, and all
156-6 other minerals, solid or otherwise.
156-7 (3) "Property" includes land, minerals in place,
156-8 whether solid, liquid, or gaseous, as well as an interest of any
156-9 kind in the property, including royalty, owned by the estate.
156-10 (b) A guardian acting solely under an order of a court, may
156-11 be authorized by the court in which the guardianship proceeding is
156-12 pending to make, execute, and deliver leases, with or without
156-13 unitization clauses or pooling provisions, that provide for the
156-14 exploration for, and development and production of, oil, other
156-15 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
156-16 gaseous phase), metals, and other solid minerals, and other
156-17 minerals, or any of those minerals in place, belonging to the
156-18 estate.
156-19 (c) All leases authorized by Subsection (b) of this section,
156-20 with or without pooling provisions or unitization clauses, shall be
156-21 made and entered into pursuant to and in conformity with
156-22 Subsections (d)-(m) of this section.
156-23 (d) The guardian of the estate shall file a written
156-24 application with the court seeking authority to lease property of
156-25 the estate for mineral exploration and development, with or without
156-26 pooling provisions or unitization clauses. The name of any
156-27 proposed lessee or the terms, provisions, or form of any desired
157-1 lease do not need to be set out or suggested in the application.
157-2 The application shall:
157-3 (1) describe the property fully enough by reference to
157-4 the amount of acreage, the survey name or number, abstract number,
157-5 or other description that adequately identifies the property and
157-6 its location in the county in which the property is located;
157-7 (2) specify the interest thought to be owned by the
157-8 estate if less than the whole, but asking for authority to include
157-9 all interest owned by the estate if that is the intention; and
157-10 (3) set out the reasons why the particular property of
157-11 the estate should be leased.
157-12 (e) When an application to lease is filed, under this
157-13 section, the county clerk shall immediately call the filing of the
157-14 application to the attention of the court. The judge shall
157-15 promptly make and enter a brief order designating the time and
157-16 place for the hearing of the application. If the hearing does not
157-17 take place at the time originally designated by the court or by
157-18 timely order of continuance duly entered, the hearing shall be
157-19 automatically continued without further notice to the same hour or
157-20 time the following day, except Sundays and holidays on which the
157-21 county courthouse is officially closed to business, and from day to
157-22 day until the application is finally acted on and disposed of by
157-23 order of the court. No notice of the automatic continuance shall
157-24 be required.
157-25 (f) The guardian shall give written notice directed to all
157-26 persons interested in the estate of the time designated by the
157-27 judge for the hearing on the application to lease. The notice must
158-1 be dated, state the date on which the application was filed,
158-2 describe briefly the property sought to be leased, specify the
158-3 fractional interest sought to be leased if less than the entire
158-4 interest in the tract identified, and state the time and place
158-5 designated by the judge for the hearing. Exclusive of the date of
158-6 notice and of the date set for hearing, the guardian shall give at
158-7 least 10 days' notice by publishing in one issue of a newspaper of
158-8 general circulation in the county in which the proceeding is
158-9 pending or by posting if there is no newspaper in the county.
158-10 Posting under this section may be done at the guardian's instance.
158-11 The date of notice when published shall be the date the newspaper
158-12 bears.
158-13 (g) A court order authorizing any acts to be performed
158-14 pursuant to the application is null and void in the absence of:
158-15 (1) a written order originally designating a time and
158-16 place for hearing;
158-17 (2) a notice issued by the guardian of the estate in
158-18 compliance with the order; and
158-19 (3) proof of publication or posting of the notice as
158-20 required.
158-21 (h) At the time and place designated for the hearing, or at
158-22 any time to which the hearing has been continued as provided by
158-23 this section, the judge shall hear the application and require
158-24 proof as to the necessity or advisability of leasing for mineral
158-25 development the property described in the application and in the
158-26 notice. If the judge is satisfied that the application is in due
158-27 form, that notice has been duly given in the manner and for the
159-1 time required by law, that the proof of necessity or advisability
159-2 of leasing is sufficient, and that the application should be
159-3 granted, the judge shall enter an order so finding and authorizing
159-4 the making of one or more leases, with or without pooling
159-5 provisions or unitization clauses (with or without cash
159-6 consideration if deemed by the court to be in the best interest of
159-7 the estate) that affects and covers the property or portions of the
159-8 property described in the application. The order that authorizes
159-9 the leasing must also set out the following mandatory contents:
159-10 (1) the name of the lessee;
159-11 (2) the actual cash consideration, if any, to be paid
159-12 by the lessee;
159-13 (3) a finding that the guardian is exempt by law from
159-14 giving bond if that is a fact, and if the guardian is required to
159-15 give a bond, then a finding as to whether or not the guardian's
159-16 general bond on file is sufficient to protect the personal property
159-17 on hand, inclusive of any cash bonus to be paid; but if the court
159-18 finds the general bond is insufficient to meet these requirements,
159-19 the order shall show the amount of increased or additional bond
159-20 required to cover the deficiency;
159-21 (4) a complete exhibit copy, either unwritten or
159-22 printed, of each lease authorized to be made, either set out in,
159-23 attached to, incorporated by reference in, or made a part of the
159-24 order.
159-25 (i) An exhibit copy must show the name of the lessee, the
159-26 date of the lease, an adequate description of the property being
159-27 leased, the delay rental, if any, to be paid to defer commencement
160-1 of operations, and all other terms and provisions authorized. If
160-2 no date of the lease appears in the exhibit copy or in the court's
160-3 order, then the date of the court's order is considered for all
160-4 purposes as the date of the authorized lease. If the name and
160-5 address of a depository bank for receiving rental is not shown in
160-6 the exhibit copy, the name or address of the depository bank may be
160-7 inserted or caused to be inserted in the lease by the estate's
160-8 guardian at the time of its execution or at any other time
160-9 agreeable to the lessee, his successors, or assigns.
160-10 (j) On the hearing of an application for authority to lease,
160-11 if the court grants the authority to lease, the guardian of the
160-12 estate is fully authorized to make, not later than the 30th day
160-13 after the date of the judge's order, unless an extension is granted
160-14 by the court on a sworn application showing good cause, the lease
160-15 as evidenced by the true exhibit copies in accordance with the
160-16 order. Unless the guardian is not required to give a general
160-17 bond, a lease for which a cash consideration is required, though
160-18 ordered, executed, and delivered, is not valid unless the order
160-19 authorizing the lease actually makes a finding with respect to the
160-20 general bond. If the general bond has been found insufficient, the
160-21 lease is not valid until the bond has been increased or an
160-22 additional bond given with the sureties required by law as required
160-23 by the court order, has been approved by the judge, and has been
160-24 filed with the clerk of the court in which the proceeding is
160-25 pending. If two or more leases on different lands are authorized
160-26 by the same order, the general bond shall be increased or
160-27 additional bonds given to cover all. It is not necessary for the
161-1 judge to make any order confirming the leases.
161-2 (k) Every lease when executed and delivered in compliance
161-3 with the rules set out in this section shall be valid and binding
161-4 on the property or interest owned by the estate and covered by the
161-5 lease for the full duration of the term as provided in the lease
161-6 and is subject only to its terms and conditions even though the
161-7 primary term extends beyond the date when the estate is closed in
161-8 accordance with law. In order for a lease to be valid and binding
161-9 on the property or interest owned by the estate under this section,
161-10 the authorized primary term in the lease may not exceed five years,
161-11 subject to terms and provisions of the lease extending it beyond
161-12 the primary term by paying production, by bona fide drilling or
161-13 reworking operations, whether in or on the same or additional well
161-14 or wells with no cessation of operations of more than 60
161-15 consecutive days before production has been restored or obtained,
161-16 or by the provisions of the lease relating to a shut-in gas well.
161-17 (l) As to any existing valid mineral lease executed and
161-18 delivered in compliance with this chapter before September 1, 1993,
161-19 a provision of the lease continuing the lease in force after its
161-20 five-year primary term by a shut-in gas well is validated, unless
161-21 the validity of the provision is an issue in a lawsuit pending in
161-22 this state on September 1, 1993.
161-23 (m) Any oil, gas, and mineral lease executed by a guardian
161-24 under this chapter may be amended by an instrument that provides
161-25 that a shut-in gas well on the land covered by the lease or on land
161-26 pooled with all or some part of the land covered by the lease shall
161-27 continue the lease in force after its five-year primary term. The
162-1 instrument shall be executed by the guardian, with court approval,
162-2 and on the terms and conditions as may be prescribed in the
162-3 instrument.
162-4 Sec. 848. MINERAL LEASES AT PRIVATE SALE.
162-5 (a) Notwithstanding the mandatory requirements for setting a time
162-6 and place for hearing of an application to lease under Section 847
162-7 of this code and the issuance, service, and return of notice, the
162-8 court may authorize the making of oil, gas, and mineral leases at
162-9 private sale without public notice or advertising if, in the
162-10 opinion of the court, sufficient facts are set out in the
162-11 application to show that it would be more advantageous to the
162-12 estate that a lease be made privately and without compliance with
162-13 the mandatory requirements under Section 847 of this code. Leases
162-14 authorized under this section may include pooling provisions or
162-15 unitization clauses as in other cases.
162-16 (b) At any time after the expiration of five days and before
162-17 the expiration of the 10th day after the date of filing and without
162-18 an order setting the time and place of hearing, the court shall
162-19 hear the application to lease at a private sale. The court shall
162-20 inquire into the manner in which the proposed lease has been or
162-21 will be made and shall hear evidence for or against the
162-22 application. If the court is satisfied that the lease has been or
162-23 will be made for a fair and sufficient consideration and on fair
162-24 terms and has been or will be properly made in conformity with the
162-25 law, the court shall enter an order authorizing the execution of
162-26 the lease without the necessity of advertising, notice, or
162-27 citation. An order entered under this subsection must comply in
163-1 all other respects with the requirements essential to the validity
163-2 of mineral leases set out in this chapter as if advertising or
163-3 notice were required. An order that confirms a lease made at a
163-4 private sale does not need to be issued. A lease made at a private
163-5 sale is not valid until the increased or additional bond required
163-6 by the court, if any, has been approved by the court and filed with
163-7 the clerk of the court.
163-8 Sec. 849. Pooling or Unitization of Royalty or Minerals.
163-9 (a) When an existing lease on property owned by the estate does
163-10 not adequately provide for pooling or unitization, the court may
163-11 authorize the commitment of royalty or mineral interests in oil,
163-12 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
163-13 gaseous phase in the reservoir), gaseous elements, and other
163-14 minerals or any one or more of them owned by the estate being
163-15 administered to agreements that provide for the operation of areas
163-16 as a pool or unit for the exploration, development, and production
163-17 of all those minerals, if the court finds that the pool or unit to
163-18 which the agreement relates will be operated in such a manner as to
163-19 protect correlative rights, or to prevent the physical or economic
163-20 waste of oil, liquid hydrocarbons, gas (including all liquid
163-21 hydrocarbons in the gaseous phase in the reservoir), gaseous
163-22 elements, or other mineral subject thereto, and that it is in the
163-23 best interests of the estate to execute the agreement. Any
163-24 agreement so authorized to be executed may provide that:
163-25 (1) operations incident to the drilling of or
163-26 production from a well on any portion of a pool or unit are deemed
163-27 for all purposes to be the conduct of operations on or production
164-1 from each separately owned tract in the pool or unit;
164-2 (2) any lease covering any part of the area committed
164-3 to a pool or unit shall continue in force in its entirety as long
164-4 as oil, gas, or other mineral subject to the agreement is produced
164-5 in paying quantities from any part of the pooled or unitized area,
164-6 as long as operations are conducted as provided in the lease on any
164-7 part of the pooled or unitized area, or as long as there is a
164-8 shut-in gas well on any part of the pooled or unitized area if the
164-9 presence of the shut-in gas well is a ground for continuation of
164-10 the lease on the terms of the lease;
164-11 (3) the production allocated by the agreement to each
164-12 tract included in a pool or unit shall, when produced, be deemed
164-13 for all purposes to have been produced from the tract by a well
164-14 drilled on the tract;
164-15 (4) the royalties provided for on production from any
164-16 tract or portion of a tract within the pool or unit shall be paid
164-17 only on that portion of the production allocated to the tract in
164-18 accordance with the agreement;
164-19 (5) the dry gas, before or after extraction of
164-20 hydrocarbons, may be returned to a formation underlying any lands
164-21 or leases committed to the agreement, and that no royalties are
164-22 required to be paid on the gas so returned; and
164-23 (6) gas obtained from other sources or another tract
164-24 of land may be injected into a formation underlying any land or
164-25 lease committed to the agreement, and that no royalties are
164-26 required to be paid on the gas so injected when same is produced
164-27 from the unit.
165-1 (b) Pooling or unitization, when not adequately provided for
165-2 by an existing lease on property owned by the estate, may be
165-3 authorized by the court in which the proceeding is pending pursuant
165-4 to and in conformity with Subsections (c)-(g) of this section.
165-5 (c) The guardian of the estate shall file with the county
165-6 clerk of the county in which the guardianship proceeding is pending
165-7 the guardian's written application for authority to enter into a
165-8 pooling or unitization agreement supplementing, amending, or
165-9 otherwise relating to, any existing lease covering property owned
165-10 by the estate, or to commit royalties or other interest in
165-11 minerals, whether subject to lease or not, to a pooling or
165-12 unitization agreement. The application must also describe the
165-13 property sufficiently as required in the original application to
165-14 lease, describe briefly the lease to which the interest of the
165-15 estate is subject, and set out the reasons the proposed agreement
165-16 concerning the property should be made. A true copy of the
165-17 proposed agreement shall be attached to the application and by
165-18 reference made a part of the application, but the agreement may not
165-19 be recorded in the minutes. The clerk shall immediately, after the
165-20 application is filed, call it to the attention of the judge.
165-21 (d) Notice of the filing of the application by advertising,
165-22 citation, or otherwise is not required.
165-23 (e) The judge may hold a hearing on the application at a
165-24 time that is agreeable to the parties to the proposed agreement.
165-25 The judge shall hear proof and be satisfied as to whether it is in
165-26 the best interests of the estate that the proposed agreement be
165-27 authorized. The hearing may be continued from day to day and from
166-1 time to time as the court finds to be necessary.
166-2 (f) If the court finds that the pool or unit to which the
166-3 agreement relates will be operated in such a manner as to protect
166-4 correlative rights or to prevent the physical or economic waste of
166-5 oil, liquid hydrocarbons, gas (including all liquid hydrocarbons in
166-6 the gaseous phase in the reservoir), gaseous elements, or other
166-7 mineral subject to the pool or unit, that it is in the best
166-8 interests of the estate that the agreement be executed, and that
166-9 the agreement conforms substantially with the permissible
166-10 provisions of Subsection (a) of this section, the court shall enter
166-11 an order setting out the findings made by the court and authorizing
166-12 execution of the agreement, with or without payment of cash
166-13 consideration according to the agreement. If cash consideration is
166-14 to be paid for the agreement, the court shall make a finding as to
166-15 the necessity of increased or additional bond as a finding is made
166-16 in the making of leases on payment of the cash bonus for the lease.
166-17 The agreement is not valid until the increased or additional bond
166-18 required by the court, if any, has been approved by the judge and
166-19 filed with the clerk. If the date is not stipulated in the
166-20 agreement, the date of the court's order shall be the effective
166-21 date of the agreement.
166-22 Sec. 850. Special Ancillary Instruments Executed Without
166-23 Court Order. As to any valid mineral lease or pooling or
166-24 unitization agreement, executed on behalf of the estate before
166-25 September 1, 1993, pursuant to provisions, or by a former owner of
166-26 land, minerals, or royalty affected by the lease, pooling, or
166-27 unitization agreement, the guardian of the estate that is being
167-1 administered, without further order of the court and without
167-2 consideration, may execute division orders, transfer orders,
167-3 instruments of correction, instruments designating depository banks
167-4 for the reception of delay rentals or shut-in gas well royalty to
167-5 accrue or become payable under the terms of the lease, or similar
167-6 instruments pertaining to the lease or agreement and the property
167-7 covered by the lease or agreement.
167-8 Sec. 851. Procedure When Guardian of Estate Neglects to
167-9 Apply for Authority. When the guardian of an estate neglects to
167-10 apply for authority to subject property of the estate to a lease
167-11 for mineral development, pooling, or unitization, or authority to
167-12 commit royalty or other interest in minerals to pooling or
167-13 unitization, any person interested in the estate, on written
167-14 application filed with the county clerk, may cause the guardian to
167-15 be cited to show cause why it is not in the best interests of the
167-16 estate for the lease to be made or an agreement to be entered into.
167-17 The clerk shall immediately call the filing of the application
167-18 under this section to the attention of the judge of the court in
167-19 which the guardianship proceeding is pending. The judge shall set
167-20 a time and place for a hearing on the application. The guardian of
167-21 the estate shall be cited to appear and show cause why the
167-22 execution of the lease or agreement should not be ordered. On
167-23 hearing and if satisfied from the proof that it would be in the
167-24 best interests of the estate, the court shall enter an order
167-25 requiring the guardian to file the guardian's application to
167-26 subject the property of the estate to a lease for mineral
167-27 development, with or without pooling or unitization provisions, or
168-1 to commit royalty or other minerals to unitization, as the case may
168-2 be. The procedures prescribed with respect to original application
168-3 to lease or with respect to original application for authority to
168-4 commit royalty or minerals to pooling or unitization shall be
168-5 followed.
168-6 Sec. 852. VALIDATION OF CERTAIN LEASES AND POOLING OR
168-7 UNITIZATION AGREEMENTS BASED ON PREVIOUS STATUTES. All leases on
168-8 the oil, gas, or other minerals existing on September 1, 1993,
168-9 belonging to the estates of minors or other incapacitated persons
168-10 and all agreements with respect to the pooling or unitization of
168-11 oil, gas, or other minerals or any interest in oil, gas, or other
168-12 minerals with like properties of others that have been authorized
168-13 by the court having venue, executed, and delivered by a guardian or
168-14 other fiduciary of the estate of a minor or incapacitated person in
168-15 substantial conformity to the rules set forth in statutes on
168-16 execution or delivery providing for only seven days' notice in some
168-17 instances and for a brief order designating a time and place for
168-18 hearing, are validated insofar as the period of notice or absence
168-19 of an order setting a time and place for hearing is concerned,
168-20 unless the length of time of the notice or the absence of the order
168-21 is an issue in a lease or pooling or unitization agreement that is
168-22 involved in a lawsuit pending on September 1, 1993.
168-23 SUBPART K. PARTITION OF WARD'S ESTATE IN REALTY
168-24 Sec. 853. PARTITION OF WARD'S INTEREST IN REALTY. (a) If a
168-25 ward owns an interest in real estate in common with another part
168-26 owner or one or more part owners, and if, in the opinion of the
168-27 guardian of the estate, it is in the best interests of the ward's
169-1 estate to partition the real estate, the guardian may agree on a
169-2 partition with the other part owners subject to the approval of the
169-3 court in which the guardianship proceeding is pending.
169-4 (b) When a guardian has reached an agreement with the other
169-5 part owners on how to partition the real estate, the guardian shall
169-6 file with the court an application to have the agreement approved.
169-7 The application filed by the guardian under this subsection shall
169-8 describe the land that is to be divided and shall state why it is
169-9 in the best interests of the ward's estate to partition the real
169-10 estate and shall show that the proposed partition agreement is fair
169-11 and just to the ward's estate.
169-12 (c) When the application required by Subsection (b) of this
169-13 section is filed, the county clerk shall immediately call the
169-14 filing of the application to the attention of the judge of the
169-15 court in which the guardianship proceeding is pending. The judge
169-16 shall designate a day to hear the application. The application
169-17 must remain on file at least 10 days before any orders are made,
169-18 and the judge may continue the hearing from time to time until the
169-19 judge is satisfied concerning the application.
169-20 (d) If the judge is satisfied that the proposed partition of
169-21 the real estate is in the best interests of the ward's estate, the
169-22 court shall enter an order approving the partition and directing
169-23 the guardian to execute the necessary agreement for the purpose of
169-24 carrying the order and partition into effect.
169-25 (e) When a guardian has executed an agreement or will
169-26 execute an agreement to partition any land in which the ward has
169-27 an interest without court approval as provided by this section, the
170-1 guardian shall file with the court in which the guardianship
170-2 proceedings are pending an application for the approval and
170-3 ratification of the partition agreement. The application must
170-4 refer to the agreement in such a manner that the court can fully
170-5 understand the nature of the partition and the land being divided.
170-6 The application must state that, in the opinion of the guardian,
170-7 the agreement is fair and just to the ward's estate and is in the
170-8 best interests of the estate. When the application is filed, a
170-9 hearing shall be held on the publication as provided by Subsection
170-10 (c) of this section. If the court is of the opinion that the
170-11 partition is fairly made and that the partition is in the best
170-12 interests of the ward's estate, the court shall enter an order
170-13 ratifying and approving the partition agreement. When the
170-14 partition is ratified and approved, the partition shall be
170-15 effective and binding as if originally executed after a court
170-16 order.
170-17 (f) If the guardian of the estate of a ward is of the
170-18 opinion that it is in the best interests of the ward's estate that
170-19 any real estate that the ward owns in common with others should be
170-20 partitioned, the guardian may bring a suit in the court in which
170-21 the guardianship proceeding is pending against the other part owner
170-22 or part owners for the partition of the real estate. The court, if
170-23 after hearing the suit is satisfied that the necessity for the
170-24 partition of the real estate exists, may enter an order
170-25 partitioning the real estate to the owner of the real estate.
170-26 SUBPART L. INVESTMENTS AND LOANS OF ESTATES OF WARDS
170-27 Sec. 855. INVESTMENTS. (a) If the guardian of the estate
171-1 has on hand money that belongs to the ward that exceeds that amount
171-2 of money that may be necessary for the education and maintenance of
171-3 the ward, the guardian shall invest the money as follows:
171-4 (1) in bonds or other obligations of the United
171-5 States;
171-6 (2) in tax-supported bonds of this state;
171-7 (3) except as limited by Subsections (b) and (c) of
171-8 this section, in tax-supported bonds of a county, district,
171-9 political subdivision, or incorporated city or town in this state;
171-10 (4) in shares or share accounts of a building and loan
171-11 association organized under the laws of this state if the payment
171-12 of the shares or share accounts is insured by the Federal Savings
171-13 and Loan Insurance Corporation;
171-14 (5) in the shares or share accounts of a federal
171-15 savings and loan association domiciled in this state if the payment
171-16 of the shares or share accounts is insured by the Federal Savings
171-17 and Loan Insurance Corporation;
171-18 (6) in collateral bonds of companies incorporated
171-19 under the laws of this state, having a paid-in capital of
171-20 $1,000,000 or more, when the bonds are a direct obligation of the
171-21 company that issues the bonds and are specifically secured by first
171-22 mortgage real estate notes or other securities pledged with a
171-23 trustee; or
171-24 (7) in interest-bearing time deposits that may be
171-25 withdrawn on or before one year after demand in a bank that does
171-26 business in this state where the payment of the time deposits is
171-27 insured by the Federal Deposit Insurance Corporation.
172-1 (b) The bonds of a county, district, or subdivision may be
172-2 purchased only if the net funded debt of the county, district, or
172-3 subdivision that issues the bonds does not exceed 10 percent of the
172-4 assessed value of taxable property in the county, district, or
172-5 subdivision.
172-6 (c) The bonds of a city or town may be purchased only if the
172-7 net funded debt of the city or town does not exceed 10 percent of
172-8 the assessed value of taxable property in the city or town less
172-9 that part of the debt incurred for acquisition or improvement of
172-10 revenue-producing utilities, the revenues of which are not pledged
172-11 to support other obligations of the city or town.
172-12 (d) The limitations in Subsections (b) and (c) of this
172-13 section do not apply to bonds issued for road purposes in this
172-14 state under Section 52, Article III, of the Texas Constitution that
172-15 are supported by a tax unlimited as to rate or amount.
172-16 (e) In this section, "net funded debt" means the total
172-17 funded debt less sinking funds on hand.
172-18 Sec. 856. OTHER INVESTMENTS. (a) If a guardian of an
172-19 estate deems it is in the best interests of the ward the guardian
172-20 is appointed to represent to invest in or sell any property or
172-21 security in which a trustee is authorized to invest by either
172-22 Section 113.056 or Subchapter F, Chapter 113, of the Texas Trust
172-23 Code (Subtitle B, Title 9, Property Code), and the investment or
172-24 sale is not expressly permitted by other sections of this chapter,
172-25 the guardian may file a written application in the court in which
172-26 the guardianship is pending that asks for an order authorizing the
172-27 guardian to make the desired investment or sale and states the
173-1 reason why the guardian is of the opinion that the investment or
173-2 sale would be beneficial to the ward. A citation or notice is not
173-3 necessary under this subsection unless ordered by the court.
173-4 (b) On the hearing of the application filed under this
173-5 section, the court shall enter an order authorizing the investment
173-6 or sale if the court is satisfied that the investment or sale will
173-7 be beneficial to the ward. The court order must specify the
173-8 investment or sale to be made and contain other directions as the
173-9 court finds advisable.
173-10 (c) The procedure specified in this section does not need to
173-11 be followed in making an investment or sale specifically authorized
173-12 by other statutes and does not apply if a different procedure is
173-13 prescribed for an investment or sale by a guardian.
173-14 Sec. 857. INVESTMENT IN LIFE INSURANCE OR ANNUITIES.
173-15 (a) In this section, "life insurance company" means a stock or
173-16 mutual legal reserve life insurance company that maintains the full
173-17 legal reserves required under the laws of this state and that is
173-18 licensed by the State Board of Insurance to transact the business
173-19 of life insurance in this state.
173-20 (b) The guardian of the estate may invest in life, term, or
173-21 endowment insurance policies, or in annuity contracts, or both,
173-22 issued by a life insurance company or administered by the Veterans
173-23 Administration, subject to conditions and limitations in this
173-24 section.
173-25 (c) The guardian shall first apply to the court for an order
173-26 that authorizes the guardian to make the investment. The
173-27 application filed under this subsection must include a report that
174-1 shows:
174-2 (1) in detail the financial condition of the estate at
174-3 the time the application is made;
174-4 (2) the name and address of the life insurance company
174-5 from which the policy or annuity contract is to be purchased and
174-6 that the company is licensed by the State Board of Insurance to
174-7 transact that business in this state on the date the application is
174-8 filed, or that the policy or contract is administered by the
174-9 Veterans Administration;
174-10 (3) a statement of the face amount and plan of the
174-11 policy of insurance sought to be purchased and of the amount,
174-12 frequency, and duration of the annuity payments to be provided by
174-13 the annuity contract sought to be purchased;
174-14 (4) a statement of the amount, frequency, and duration
174-15 of the premiums required by the policy or annuity contract; and
174-16 (5) a statement of the cash value of the policy or
174-17 annuity contract at its anniversary nearest the 21st birthday of
174-18 the ward, assuming that all premiums to the anniversary are paid
174-19 and that there is no indebtedness against the policy or contract
174-20 incurred in accordance with its terms.
174-21 (d) An insurance policy must be issued on the life of the
174-22 ward, or the father, mother, spouse, child, brother, sister,
174-23 grandfather, or grandmother of the ward or a person in whose life
174-24 the ward may have an insurable interest.
174-25 (e) Only the ward, the ward's estate, or the father,
174-26 mother, spouse, child, brother, sister, grandfather, or grandmother
174-27 of the ward may be a beneficiary of the insurance policy and of the
175-1 death benefit of the annuity contract, and the ward must be the
175-2 annuitant in the annuity contract.
175-3 (f) The control of the policy or the annuity contract and of
175-4 the incidents of ownership in the policy or annuity contract is
175-5 vested in the guardian during the life and disability of the ward.
175-6 (g) The policy or annuity contract may not be amended or
175-7 changed during the life and disability of the ward except on
175-8 application to and order of the court.
175-9 (h) If a life, term, or endowment insurance policy or a
175-10 contract of annuity is owned by the ward when a proceeding for the
175-11 appointment of a guardian is begun, and it is made to appear that
175-12 the company issuing the policy or contract of annuity is a life
175-13 insurance company as defined by this section or the policy or
175-14 contract is administered by the Veterans Administration, the policy
175-15 or contract may be continued in full force and effect. All future
175-16 premiums may be paid out of surplus funds of the ward's estate.
175-17 The guardian shall apply to the court for an order to continue the
175-18 policy or contract, or both, according to the existing terms of the
175-19 policy or contract or to modify the policy or contract to fit any
175-20 new developments affecting the welfare of the ward. Before any
175-21 application filed under this subsection is granted, the guardian
175-22 shall file a report in the court that shows in detail the financial
175-23 condition of the ward's estate at the time the application is
175-24 filed.
175-25 (i) The court, if satisfied by the application and the
175-26 evidence adduced at the hearing that it is in the interests of the
175-27 ward to grant the application, shall enter an order granting the
176-1 application.
176-2 (j) A right, benefit, or interest that accrues under an
176-3 insurance or annuity contract that comes under the provisions of
176-4 this section shall become the exclusive property of the ward when
176-5 the ward's disability is terminated.
176-6 Sec. 858. LOANS AND SECURITY FOR LOANS. If, at any time,
176-7 the guardian of the estate has on hand money belonging to the ward
176-8 in an amount that is beyond what may be necessary for the education
176-9 and maintenance of the ward, the guardian may lend the money for
176-10 the highest rate of interest that can be obtained for the money.
176-11 The guardian shall take the note of the borrower for the money that
176-12 is loaned, secured by a mortgage with a power of sale on
176-13 unencumbered real estate located in this state worth at least twice
176-14 the amount of the note, or by collateral notes secured by vendor's
176-15 lien notes, as collateral, or the guardian may purchase vendor's
176-16 lien notes if at least one-half has been paid in cash or its
176-17 equivalent on the land for which the notes were given.
176-18 Sec. 859. GUARDIAN'S LIABILITY FOR LOANS. When the borrower
176-19 of money lent by the guardian of the estate under the court's
176-20 direction and on security approved by the court is unable to repay
176-21 the money or the security fails, the guardian of the estate is not
176-22 personally responsible for the money unless the guardian has been
176-23 guilty of fraud or negligence with respect to the loan or the
176-24 collection of the loan, in which case the guardian and the sureties
176-25 on the bond of the guardian shall be liable for whatever loss the
176-26 ward sustains because of the guardian's fraud or negligence.
176-27 Sec. 860. GUARDIAN'S INVESTMENTS IN REAL ESTATE. (a) When
177-1 the guardian of the estate of a ward thinks it is best for the ward
177-2 who has a surplus of money on hand to invest the money in real
177-3 estate, the guardian shall file a written application in the court
177-4 in which the guardianship is pending requesting a court order
177-5 authorizing the guardian to make the desired investment and
177-6 stating the reasons why the guardian is of the opinion that the
177-7 investment would be for the benefit of the ward.
177-8 (b) When an application is filed by the guardian under this
177-9 section, the judge's attention shall be called to the application,
177-10 and the judge shall make investigation as necessary to obtain all
177-11 the facts concerning the investment. The judge may not render an
177-12 opinion or make an order on the application until 10 days from the
177-13 date of the filing of the application have expired. On the hearing
177-14 of the application, if the court is satisfied that the investment
177-15 benefits the ward, the court shall issue an order that authorizes
177-16 the guardian to make the investment. The order shall specify the
177-17 investment to be made and contain other directions the court thinks
177-18 are advisable.
177-19 (c) When a contract is made for the investment of money in
177-20 real estate under court order, the guardian shall report the
177-21 contract in writing to the courts. The court shall inquire fully
177-22 into the contract. If satisfied that the investment will benefit
177-23 the estate of the ward and that the title of the real estate is
177-24 valid and unencumbered, the court may approve the contract and
177-25 authorize the guardian to pay over the money in performance of the
177-26 contract. The guardian may not pay any money on the contract until
177-27 the contract is approved by court order to that effect.
178-1 (d) When the money of the ward has been invested in real
178-2 estate, the title to the real estate shall be made to the ward.
178-3 The guardian shall inventory, appraise, manage, and account for the
178-4 real estate as other real estate of the ward.
178-5 Sec. 861. OPINION OF ATTORNEY WITH RESPECT TO LOANS AND
178-6 INVESTMENTS. When the guardian of the estate of a ward lends or
178-7 invests the money of the ward, the guardian may not pay over or
178-8 transfer any money in consummation of the loan or investment until
178-9 the guardian has submitted to a reputable attorney for examination
178-10 all bonds, notes, mortgages, documents, abstracts, and other papers
178-11 pertaining to the loan or investment and the guardian has received
178-12 a written opinion from the attorney that all papers pertaining to
178-13 the loan or investment are regular and that the title to the bonds,
178-14 notes, or real estate is good. The attorney making the examination
178-15 shall be paid a reasonable fee, not to exceed one percent of the
178-16 amount invested, unless one percent of the amount invested is less
178-17 than $25, in which event the fee shall be $25. The guardian
178-18 shall pay the fee out of the funds of the ward's estate. On a
178-19 loan, the attorney's fee shall be paid by the borrower. The
178-20 guardian may obtain a mortgagee's title insurance policy on any
178-21 real estate loan instead of an abstract and attorney's opinion.
178-22 Sec. 862. REPORT OF INVESTMENT AND LOANS. Not later than
178-23 the 30th day after the date money belonging to a ward's estate is
178-24 lent or invested, the guardian of the ward's estate shall report to
178-25 the court in writing, verified by affidavit, stating fully the
178-26 facts of the investment or loan, unless the investment or loan was
178-27 made pursuant to a court order.
179-1 Sec. 863. LIABILITY OF GUARDIAN FOR FAILURE TO LEND OR
179-2 INVEST FUNDS. If the guardian of the estate neglects to invest or
179-3 lend surplus money on hand at interest when the guardian can do so
179-4 by using reasonable diligence, the guardian shall be liable for the
179-5 principal and for the highest legal rate of interest on the
179-6 principal for the time the guardian neglects to invest or lend the
179-7 surplus money. The amount of principal and interest on the
179-8 principal may be recovered in a court of competent jurisdiction.
179-9 Sec. 864. REQUIRING GUARDIAN TO INVEST OR LEND SURPLUS
179-10 FUNDS. If there is any surplus money of the estate in the hands of
179-11 the guardian of the estate, the court, on its own motion or on
179-12 written complaint filed by any person, may cause the guardian to be
179-13 cited to appear and show cause why the surplus money should not be
179-14 invested or lent at interest. On the hearing of a complaint filed
179-15 under this section, the court shall enter an order as the law and
179-16 the facts require.
179-17 SUBPART M. TAX MOTIVATED AND CHARITABLE GIFTS
179-18 Sec. 865. POWER TO MAKE TAX-MOTIVATED GIFTS. (a) On
179-19 application of the guardian of the estate or any interested party
179-20 and after notice to all interested persons and to other persons as
179-21 directed by the court, the court, after hearing, may enter an order
179-22 that authorizes the guardian to apply the principal or income of
179-23 the ward's estate that is not required for the support of the ward
179-24 or the ward's family during the ward's lifetime toward the
179-25 establishment of an estate plan for the purpose of minimizing
179-26 income, estate, inheritance, or other taxes payable out of the
179-27 ward's estate on a showing that the ward will probably remain
180-1 incapacitated during the ward's lifetime. On the ward's behalf,
180-2 the court may authorize the guardian to make gifts, outright or in
180-3 trust, of the ward's personal property or real estate to or for the
180-4 benefit of:
180-5 (1) an organization to which charitable contributions
180-6 may be made under the Internal Revenue Code and in which it is
180-7 shown the ward would reasonably have an interest;
180-8 (2) the ward's heirs at law who are identifiable at
180-9 the time of the order;
180-10 (3) a devisee under the ward's last validly executed
180-11 will, if there is a will; and
180-12 (4) a person serving as guardian of the ward if the
180-13 person is eligible under either Subdivision (2) or (3) of this
180-14 subsection.
180-15 (b) The person making an application to the court under this
180-16 section shall outline the proposed estate plan and set forth all
180-17 the benefits that are to be derived from the estate plan. The
180-18 application must indicate that the planned disposition is
180-19 consistent with the ward's intentions if the ward's intentions can
180-20 be ascertained. If the ward's intentions cannot be ascertained,
180-21 the ward will be presumed to favor reduction in the incidence of
180-22 the various forms of taxation and the partial distribution of the
180-23 ward's estate as provided by this section.
180-24 (c) The court may appoint a guardian ad litem for the ward
180-25 or any interested party at any stage of the proceedings if it is
180-26 deemed advisable for the protection of the ward or the interested
180-27 party.
181-1 (d) A subsequent modification of an approved plan may be
181-2 made by similar application to the court.
181-3 Sec. 866. CONTRIBUTIONS. (a) The guardian of the estate
181-4 may at any time file the guardian's sworn application in writing
181-5 with the county clerk requesting an order from the court in which
181-6 the guardianship is pending authorizing the guardian to contribute
181-7 from the income of the ward's estate a specific amount of money as
181-8 stated in the application, to one or more:
181-9 (1) designated corporations, trusts, or community
181-10 chests, funds, or foundations, organized and operated exclusively
181-11 for religious, charitable, scientific, literary, or educational
181-12 purposes; or
181-13 (2) designated nonprofit federal, state, county, or
181-14 municipal projects operated exclusively for public health or
181-15 welfare.
181-16 (b) When an application is filed under this section, the
181-17 county clerk shall immediately call the filing of the application
181-18 to the attention of the judge of the court. The judge, by written
181-19 order filed with the clerk, shall designate a day to hear the
181-20 application. The application shall remain on file at least 10 days
181-21 before the hearing is held. The judge may postpone or continue the
181-22 hearing from time to time until the judge is satisfied concerning
181-23 the application.
181-24 (c) On the conclusion of a hearing under this section, the
181-25 court may enter an order authorizing the guardian to make a
181-26 contribution from the income of the ward's estate to a particular
181-27 donee designated in the application and order if the court is
182-1 satisfied and finds from the evidence that:
182-2 (1) the amount of the proposed contribution stated in
182-3 the application will probably not exceed 20 percent of the net
182-4 income of the ward's estate for the current calendar year;
182-5 (2) the net income of the ward's estate for the
182-6 current calendar year exceeds, or probably will exceed, $25,000;
182-7 (3) the full amount of the contribution, if made, will
182-8 probably be deductible from the ward's gross income in determining
182-9 the net income of the ward under applicable federal income tax laws
182-10 and rules;
182-11 (4) the condition of the ward's estate justifies a
182-12 contribution in the proposed amount; and
182-13 (5) the proposed contribution is reasonable in amount
182-14 and is for a worthy cause.
182-15 SUBPART N. MANAGEMENT TRUSTS
182-16 Sec. 867. CREATION OF MANAGEMENT TRUST. On application by
182-17 the guardian of a ward, the court in which the guardianship
182-18 proceeding is pending may enter an order that creates for the
182-19 ward's benefit a trust for the management of guardianship funds if
182-20 the court finds that the creation of the trust is in the ward's
182-21 best interests. The order shall direct the guardian to deliver all
182-22 or part of the assets of the guardianship to a trust company or a
182-23 state or national bank that has trust powers in this state. The
182-24 order shall include terms, conditions, and limitations placed on
182-25 the trust.
182-26 Sec. 868. TERMS OF MANAGEMENT TRUST. (a) A trust created
182-27 under Section 867 of this code must provide that:
183-1 (1) the ward is the sole beneficiary of the trust;
183-2 (2) the trustee may disburse an amount of the trust's
183-3 principal or income as the trustee determines is necessary to
183-4 expend for the health, education, support, or maintenance of the
183-5 ward;
183-6 (3) the income of the trust that the trustee does not
183-7 disburse under Subdivision (2) of this subsection must be added to
183-8 the principal of the trust;
183-9 (4) the trustee serves without giving a bond; and
183-10 (5) the trustee, on application to the court and
183-11 subject to the court's approval, shall receive reasonable
183-12 compensation for services that the trustee provided to the ward as
183-13 the ward's trustee that is to be paid from the trust's income,
183-14 principal, or both.
183-15 (b) The trust may provide that a trustee make a
183-16 distribution, payment, use, or application of trust funds, as
183-17 necessary and without the intervention of a guardian or other
183-18 representative of the ward, to the ward's guardian or to a person
183-19 who has physical custody of the ward for:
183-20 (1) the benefit, support, or maintenance of the ward
183-21 if the ward is a minor; or
183-22 (2) the support of the ward, and the support,
183-23 maintenance, and education of the ward's children if the ward is an
183-24 incapacitated person other than a minor.
183-25 Sec. 869. TRUST AMENDMENT, MODIFICATION, OR REVOCATION. (a)
183-26 The court may amend, modify, or revoke the trust at any time before
183-27 the date of the trust's termination.
184-1 (b) The ward or guardian of the ward's estate may not revoke
184-2 the trust.
184-3 Sec. 870. TERMINATION OF TRUST. (a) If the ward is a
184-4 minor, the trust terminates on the death of the ward or the ward's
184-5 18th birthday, whichever is earlier.
184-6 (b) If the ward is an incapacitated person other than a
184-7 minor, the trust terminates on the date the court determines that a
184-8 guardianship is no longer necessary for the ward or on the death of
184-9 the ward before the court's determination that a guardianship is no
184-10 longer necessary.
184-11 Sec. 871. ANNUAL ACCOUNTING. (a) The trustee shall prepare
184-12 and file with the court an annual accounting of transactions in the
184-13 trust in the same manner and form that is required of a guardian
184-14 under this chapter.
184-15 (b) The trustee shall provide a copy of the annual account
184-16 to the guardian of the ward's estate or person.
184-17 (c) The annual account is subject to court reviewal and
184-18 approval in the same manner that is required of an annual account
184-19 prepared by a guardian under this chapter.
184-20 Sec. 872. LIABILITY. The guardian of the estate of the ward
184-21 or the surety on the bond of the guardian is not liable for an act
184-22 or omission of the trustee.
184-23 Sec. 873. DISTRIBUTION OF TRUST PROPERTY. Unless otherwise
184-24 provided by the court, the trustee shall distribute the principal
184-25 or any undistributed income of the trust to the ward or to the
184-26 representative of the deceased ward's estate when the trust
184-27 terminates on its own terms or on the ward's death.
185-1 PART 5. SPECIAL PROCEEDINGS AND ORDERS
185-2 SUBPART A. TEMPORARY GUARDIANSHIPS
185-3 Sec. 875. TEMPORARY GUARDIAN--PROCEDURE. (a) If a court is
185-4 presented with substantial evidence that a person may be a minor or
185-5 other incapacitated person, and the court has probable cause to
185-6 believe that the person or person's estate, or both, requires the
185-7 immediate appointment of a guardian, the court shall appoint a
185-8 temporary guardian with limited powers as the circumstances of the
185-9 case require.
185-10 (b) A person for whom a temporary guardian has been
185-11 appointed may not be presumed to be incapacitated. The person
185-12 retains all rights and powers that are not specifically granted to
185-13 the person's temporary guardian by court order.
185-14 (c) A written application for the appointment of a temporary
185-15 guardian may be filed before the court appoints a temporary
185-16 guardian. The application must be filed not later than the end of
185-17 the next business day of the court after the date of appointment of
185-18 the temporary guardian. The application must state:
185-19 (1) the name and address of the person who is the
185-20 subject of the guardianship proceeding;
185-21 (2) the danger to the person or property alleged to be
185-22 imminent;
185-23 (3) the type of appointment and the particular
185-24 protection and assistance being requested;
185-25 (4) the facts and reasons supporting the allegations
185-26 and requests;
185-27 (5) the name, address, and qualification of the
186-1 proposed temporary guardian;
186-2 (6) the name, address, and interest of the applicant;
186-3 (7) the social security numbers of the applicant and
186-4 proposed ward; and
186-5 (8) if applicable, that the proposed temporary
186-6 guardian is a private professional guardian who has complied with
186-7 the requirements of Section 697 of this code.
186-8 (d) At the earliest of the filing of an application for
186-9 temporary guardianship or the appointment of a temporary guardian,
186-10 the court shall appoint an attorney to represent the proposed ward
186-11 in all guardianship proceedings in which independent counsel has
186-12 not been retained by or on behalf of the proposed ward.
186-13 (e) On the filing of an application for temporary
186-14 guardianship, the clerk shall issue notice that shall be served on
186-15 the respondent and the respondent's appointed attorney. The notice
186-16 must describe the rights of the parties and the date, time, place,
186-17 purpose, and possible consequences of a hearing on the application.
186-18 A copy of the application and, if applicable, a copy of the order
186-19 appointing the temporary guardian must be attached to the notice.
186-20 (f)(1) A hearing shall be held not later than the 10th day
186-21 after the date of the filing of the application for temporary
186-22 guardianship unless the hearing date is extended as provided by
186-23 Subdivision (2) of this subsection. At a hearing under this
186-24 section, the respondent has the right to:
186-25 (A) receive prior notice;
186-26 (B) have representation by counsel;
186-27 (C) be present;
187-1 (D) present evidence and confront and
187-2 cross-examine witnesses; and
187-3 (E) a closed hearing if requested by the
187-4 respondent or the respondent's attorney.
187-5 (2) Every temporary guardianship granted before a
187-6 hearing on the application required by Subdivision (1) of this
187-7 subsection expires on its own terms at the conclusion of the
187-8 hearing unless the respondent or the respondent's attorney consents
187-9 that the order appointing the temporary guardian may be extended
187-10 for a longer period not to exceed 60 days after the date of the
187-11 filing of the application for temporary guardianship.
187-12 (3) Every temporary guardianship granted before a
187-13 hearing on the application required by Subdivision (1) of this
187-14 subsection shall be set for hearing at the earliest possible date
187-15 and takes precedence over all matters except older matters of the
187-16 same character.
187-17 (4) Every temporary guardianship granted before a
187-18 hearing on the application required by Subdivision (1) of this
187-19 subsection must include an order that sets a certain date for
187-20 hearing on the application for temporary guardianship.
187-21 (5) On one day's notice to the party who obtained a
187-22 temporary guardianship before a hearing on the application required
187-23 by Subdivision (1) of this subsection, the respondent or the
187-24 respondent's attorney may appear and move for the dissolution or
187-25 modification of the temporary guardianship. If a motion is made
187-26 for dissolution or modification of the temporary guardianship, the
187-27 court shall hear and determine the motion as expeditiously as the
188-1 ends of justice require.
188-2 (g) If at the conclusion of the hearing required by
188-3 Subsection (f)(1) of this section the court determines that the
188-4 applicant has established that there is substantial evidence that
188-5 the person is a minor or other incapacitated person, that there is
188-6 imminent danger that the physical health or safety of the
188-7 respondent will be seriously impaired, or that the respondent's
188-8 estate will be seriously damaged or dissipated unless immediate
188-9 action is taken, the court shall appoint a temporary guardian by
188-10 written order. The court shall assign to the temporary guardian
188-11 only those powers and duties that are necessary to protect the
188-12 respondent against the imminent danger shown. The powers and
188-13 duties must be described in the order of appointment.
188-14 (h) A temporary guardianship may not remain in effect for
188-15 more than 60 days.
188-16 (i) If the court appoints a temporary guardian after the
188-17 hearing required by Subsection (f)(1) of this section, all court
188-18 costs, including attorney's fees, may be assessed as provided in
188-19 Section 669 of this code.
188-20 Sec. 876. AUTHORITY OF TEMPORARY GUARDIAN. When the
188-21 temporary guardian files the oath and bond required under this
188-22 chapter, the court order appointing the temporary guardian takes
188-23 effect without the necessity for issuance of letters of
188-24 guardianship. The clerk shall note compliance with oath and bond
188-25 requirements by the appointed guardian on a certificate attached to
188-26 the order. The order shall be evidence of the temporary guardian's
188-27 authority to act within the scope of the powers and duties set
189-1 forth in the order. The clerk may not issue certified copies of
189-2 the order until the oath and bond requirements are satisfied.
189-3 Sec. 877. POWERS OF TEMPORARY GUARDIAN. All the provisions
189-4 of this chapter relating to the guardianship of persons and estates
189-5 of incapacitated persons apply to a temporary guardianship of the
189-6 persons and estates of incapacitated persons, insofar as the same
189-7 may be made applicable.
189-8 Sec. 878. Accounting. At the expiration of a temporary
189-9 appointment, the appointee shall file with the clerk of the court a
189-10 sworn list of all property of the estate that has come into the
189-11 hands of the appointee, a return of all sales made by the
189-12 appointee, and a full exhibit and account of all of the appointee's
189-13 acts as temporary appointee.
189-14 Sec. 879. CLOSING TEMPORARY GUARDIANSHIP. The court shall
189-15 act on the list, return, exhibit, and account filed under Section
189-16 878 of this code. Whenever temporary letters expire or cease to be
189-17 effective for any reason, the court shall immediately enter an
189-18 order requiring the temporary appointee to deliver the estate
189-19 remaining in the temporary appointee's possession to the person who
189-20 is legally entitled to the possession of the estate. The temporary
189-21 appointee shall be discharged and the sureties on the bond of the
189-22 temporary appointee shall be released as to future liability on
189-23 proof that the appointee delivered the property as required by this
189-24 section.
189-25 SUBPART B. GUARDIANSHIPS FOR NONRESIDENTS
189-26 Sec. 881. NONRESIDENT GUARDIAN. (a) A nonresident of this
189-27 state may be appointed and qualified as guardian or coguardian of a
190-1 nonresident ward's estate located in this state in the same manner
190-2 provided by this code for the appointment and qualification of a
190-3 resident as guardian of the estate of an incapacitated person if:
190-4 (1) a court of competent jurisdiction in the
190-5 geographical jurisdiction in which the nonresident resides
190-6 appointed the nonresident guardian;
190-7 (2) the nonresident is qualified as guardian or as a
190-8 fiduciary legal representative by whatever name known in the
190-9 foreign jurisdiction of the property or estate of the ward located
190-10 in the jurisdiction of the foreign court; and
190-11 (3) with the written application for appointment in
190-12 the county court of any county in this state in which all or part
190-13 of the ward's estate is located, the nonresident files a complete
190-14 transcript of the proceedings from the records of the court in
190-15 which the nonresident applicant was appointed, showing the
190-16 applicant's appointment and qualification as the guardian or
190-17 fiduciary legal representative of the ward's property or estate.
190-18 (b) The transcript required by Subsection (a) of this
190-19 section must be certified to and attested by the clerk of the
190-20 foreign court or the officer of the court charged by law with
190-21 custody of the court records, under the court seal, if any. The
190-22 certificate of the judge, chief justice, or presiding magistrate,
190-23 as applicable, of the foreign court must be attached to the
190-24 transcript, certifying that the attestation of the transcript by
190-25 the clerk or legal custodian of the court records is in correct
190-26 form.
190-27 (c) If the nonresident applicant meets the requirements of
191-1 this section, without the necessity of any notice or citation, the
191-2 court shall enter an order appointing the nonresident. After the
191-3 nonresident applicant qualifies in the manner required of resident
191-4 guardians and files with the court a power of attorney appointing a
191-5 resident agent to accept service of process in all actions or
191-6 proceedings with respect to the estate, the clerk shall issue the
191-7 letters of guardianship to the nonresident guardian.
191-8 (d) After qualification, the nonresident guardian shall file
191-9 an inventory and appraisement of the estate of the ward in this
191-10 state subject to the jurisdiction of the court, as in ordinary
191-11 cases, and is subject to all applicable provisions of this code
191-12 with respect to the handling and settlement of estates by resident
191-13 guardians.
191-14 Sec. 882. NONRESIDENT AS WARD. Guardianship of the estate
191-15 of a nonresident incapacitated person who owns property in this
191-16 state may be granted, if necessary, in the same manner as for the
191-17 property of a resident of this state. A court in the county in
191-18 which the principal estate of the ward is located has jurisdiction
191-19 to appoint a guardian. The court shall take all actions and make
191-20 all necessary orders with respect to the estate of the ward for the
191-21 maintenance, support, care, or education of the ward, out of the
191-22 proceeds of the ward's estate, in the same manner as if the ward
191-23 were a resident of this state and was sent abroad by the court for
191-24 education or treatment. If a qualified nonresident guardian of the
191-25 estate later qualifies in this state under Section 881 of this
191-26 code, the court shall close the resident guardianship.
191-27 SUBPART C. INCAPACITATED SPOUSE AND COMMUNITY PROPERTY
192-1 Sec. 883. Incapacitated Spouse. When a husband or wife is
192-2 judicially declared to be incapacitated, the other spouse, in the
192-3 capacity of surviving partner of the marital partnership, acquires
192-4 full power to manage, control, and dispose of the entire community
192-5 estate, including the part of the community estate that the
192-6 incapacitated spouse legally has the power to manage in the absence
192-7 of the incapacity, without an administration. Guardianship of the
192-8 estate of the incapacitated spouse may not be necessary when the
192-9 other spouse is not incapacitated unless the incapacitated spouse
192-10 owns separate property, and the guardianship will be of the
192-11 separate property only. The qualification of a guardian of the
192-12 estate of an incapacitated spouse does not deprive the competent
192-13 spouse of the right to manage, control, and dispose of the entire
192-14 community estate as provided in this chapter.
192-15 Sec. 884. Delivery To Spouse. A guardian of the estate of
192-16 an incapacitated married person who, as guardian, is administering
192-17 community property as part of the estate of the ward, shall deliver
192-18 on demand the community property to the spouse who is not
192-19 incapacitated.
192-20 SUBPART D. RECEIVERSHIP FOR MINORS
192-21 AND OTHER INCAPACITATED PERSONS
192-22 Sec. 885. RECEIVERSHIP. (a) When the estate of a minor or
192-23 other incapacitated person or any portion of the estate of the
192-24 minor or other incapacitated person appears in danger of injury,
192-25 loss, or waste and in need of a guardianship or other
192-26 representative and there is no guardian of the estate who is
192-27 qualified in this state and a guardian is not needed, the county
193-1 judge of the county in which the minor or other incapacitated
193-2 person resides or in which the endangered estate is located shall
193-3 enter an order, with or without application, appointing a suitable
193-4 person as receiver to take charge of the estate. The court order
193-5 shall require a receiver appointed under this section to give bond
193-6 as in ordinary receiverships in an amount the judge deems necessary
193-7 to protect the estate. The court order shall specify the duties
193-8 and powers of the receiver as the judge deems necessary for the
193-9 protection, conservation, and preservation of the estate. The
193-10 clerk shall enter an order made under this section on the minutes
193-11 of the court. The person who is appointed as receiver shall make
193-12 and submit a bond for the judge's approval and shall file the bond,
193-13 when approved, with the clerk. The person who is appointed
193-14 receiver shall proceed to take charge of the endangered estate
193-15 pursuant to the powers and duties vested in the person by the order
193-16 of appointment and subsequent orders made by the judge.
193-17 (b) During the pendency of the receivership, when the needs
193-18 of the minor or other incapacitated person require the use of the
193-19 income or corpus of the estate for the education, clothing, or
193-20 subsistence of the minor or other incapacitated person, the judge,
193-21 with or without application, shall enter an order on the minutes of
193-22 the court that appropriates an amount of income or corpus that is
193-23 sufficient for that purpose. The receiver shall use the amount
193-24 appropriated by the court to pay a claim for the education,
193-25 clothing, or subsistence of the minor or other incapacitated person
193-26 that is presented to the judge for approval and ordered by the
193-27 judge to be paid.
194-1 (c) During the pendency of the receivership, when the
194-2 receiver has on hand an amount of money that belongs to the minor
194-3 or other incapacitated person that is in excess of the amount
194-4 needed for current necessities and expenses, the receiver, under
194-5 direction of the judge, may invest, lend, or contribute the excess
194-6 money or any portion of the money in the manner, for the security,
194-7 and on the terms and conditions provided by this chapter for
194-8 investments, loans, or contributions by guardians. The receiver
194-9 shall report to the judge all transactions made under this
194-10 subsection in the same manner that a report is required of a
194-11 guardian under this chapter.
194-12 (d) All necessary expenses incurred by the receiver in
194-13 administering the estate may be rendered monthly to the judge in
194-14 the form of a sworn statement of account that includes a report of
194-15 the receiver's acts, the condition of the estate, the status of the
194-16 threatened danger to the estate, and the progress made toward
194-17 abatement of the danger. If the judge is satisfied that the
194-18 statement is correct and reasonable in all respects, the judge
194-19 shall promptly enter an order approving the expenses and
194-20 authorizing the receiver to be reimbursed from the funds of the
194-21 estate in the receiver's hands. A receiver shall be compensated
194-22 for services rendered in the receiver's official capacity in the
194-23 same manner and amount as provided by this chapter for similar
194-24 services rendered by guardians of estates.
194-25 (e) When the threatened danger has abated and the estate is
194-26 no longer liable to injury, loss, or waste because there is no
194-27 guardian or other representative of the estate, the receiver shall
195-1 report to the judge, file with the clerk a full and final sworn
195-2 account of all property of the estate the receiver received, had on
195-3 hand when the receivership was pending, all sums paid out, all acts
195-4 performed by the receiver with respect to the estate, and all
195-5 property of the estate that remains in the receiver's hands on the
195-6 date of the report. On the filing of the report, the clerk shall
195-7 issue and cause to be posted a notice to all persons interested in
195-8 the welfare of the minor or other incapacitated person and shall
195-9 give personal notice to the person who has custody of the minor or
195-10 other incapacitated person to appear before the judge at a time and
195-11 place specified in the notice and contest the report and account if
195-12 the person desires.
195-13 (f) If on hearing the receiver's report and account the
195-14 judge is satisfied that the danger of injury, loss, or waste to the
195-15 estate has abated and that the report and account are correct, the
195-16 judge shall enter an order finding that the danger of injury, loss,
195-17 or waste to the estate has abated and shall direct the receiver to
195-18 deliver the estate to the person from whom the receiver took
195-19 possession as receiver, to the person who has custody of the minor
195-20 or other incapacitated person, or to another person as the judge
195-21 may find is entitled to possession of the estate. A person who
195-22 receives the estate under this subsection shall execute and file
195-23 with the clerk an appropriate receipt for the estate that is
195-24 delivered to the person. The judge's order shall discharge the
195-25 receivership and the sureties on the bond of the receiver. If the
195-26 judge is not satisfied that the danger has abated, or if the judge
195-27 is not satisfied with the receiver's report and account, the judge
196-1 shall enter an order that continues the receivership in effect
196-2 until the judge is satisfied that the danger has abated or is
196-3 satisfied with the report and account.
196-4 (g) An order or a bond, report, account, or notice in a
196-5 receivership proceeding must be recorded in the minutes of the
196-6 court.
196-7 SUBPART E. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP
196-8 Sec. 887. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP AND
196-9 ADMINISTRATION OF TERMINATED GUARDIANSHIP ASSETS. (a) When a
196-10 resident person who is a minor or other incapacitated person, or
196-11 the former ward of a guardianship terminated under Subpart C, Part
196-12 4, of this code, who are referred to in this section as "creditor,"
196-13 are without a legal guardian of the person's estate, and the person
196-14 is entitled to money in an amount that is $25,000 or less, the
196-15 right to which is liquidated and is uncontested in any pending
196-16 lawsuit, the debtor may pay the money to the county clerk of the
196-17 county in which the creditor resides to the account of the
196-18 creditor, giving the creditor's name, the nature of the creditor's
196-19 disability, and, if the creditor is a minor, the minor's age, and
196-20 the creditor's post-office address. The receipt for the money
196-21 signed by the clerk is binding on the creditor as of the date of
196-22 receipt and to the extent of the payment. The clerk, by letter
196-23 mailed to the address given by the debtor, shall apprise the
196-24 creditor of the fact that the deposit was made. On receipt of the
196-25 payment by the clerk, the clerk shall call the receipt of the
196-26 payment to the court's attention and shall invest the money as
196-27 authorized under this chapter pursuant to court order in the name
197-1 and for the account of the minor or other person entitled to the
197-2 money. Any increase, dividend, or income from an investment made
197-3 under this section shall be credited to the account of the minor or
197-4 other person entitled to the investment. Any money that is
197-5 deposited under the terms of this section that has not been paid
197-6 out shall be subject to the provisions of this chapter not later
197-7 than October 1, 1993.
197-8 (b) Not later than March 1 of each calendar year, the clerk
197-9 of the court shall make a written report to the court of the status
197-10 of an investment made by the clerk under this section. The report
197-11 must contain:
197-12 (1) the amount of the original investment or the
197-13 amount of the investment at the last annual report, whichever is
197-14 later;
197-15 (2) any increase, dividend, or income from such
197-16 investment since the last annual report;
197-17 (3) the total amount of the investment and all
197-18 increases, dividends, or income at the date of the report; and
197-19 (4) the name of the depository or the type of
197-20 investment.
197-21 (c) The father or mother, or unestranged spouse, of the
197-22 creditor, with priority being given to the spouse who resides in
197-23 this state or if there is no spouse and both father and mother are
197-24 dead or are nonresidents of this state, then the person who resides
197-25 in this state who has actual custody of the creditor, as custodian
197-26 and on filing with the clerk written application and bond approved
197-27 by the county judge of the county, may withdraw the money from the
198-1 clerk for the use and benefit of the creditor, the bond to be in
198-2 double the amount of the money and to be payable to the judge or
198-3 the judge's successors in office and to be conditioned that the
198-4 custodian will use the money for the creditor's benefit under
198-5 directions of the court and that the custodian, when legally called
198-6 on to do so, will faithfully account to the creditor and the
198-7 creditor's heirs or legal representatives for the money and any
198-8 increase to the money on the removal of the disability to which the
198-9 creditor is subject, or on the creditor's death, or the appointment
198-10 of a guardian for the creditor. A fee or commission may not be
198-11 allowed to the custodian for taking care of, handling, or expending
198-12 the money withdrawn by the custodian.
198-13 (d) When the custodian has expended the money in accordance
198-14 with directions of the court or has otherwise complied with the
198-15 terms of the custodian's bond by accounting for the money and any
198-16 increase in the money, the custodian shall file with the county
198-17 clerk of the county the custodian's sworn report of the custodian's
198-18 accounting. The filing of the custodian's report, when approved by
198-19 the court, operates as a discharge of the person as custodian and
198-20 of the person's sureties from all further liability under the bond.
198-21 The court shall satisfy itself that the report is true and correct
198-22 and may require proof as in other cases.
198-23 (e) When a nonresident minor, a nonresident person who is
198-24 adjudged by a court of competent jurisdiction to be incapacitated,
198-25 or the former ward of a guardianship terminated under Subpart C,
198-26 Part 4, of this code who has no legal guardian qualified in this
198-27 state is entitled to money in an amount that is not more than
199-1 $25,000 owing as a result of transactions within this state, the
199-2 right to which is liquidated and is uncontested in any pending
199-3 lawsuit in this state, the debtor in this state may pay the money
199-4 to the guardian of the creditor who is duly qualified in the
199-5 domiciliary jurisdiction or to the county clerk of any county in
199-6 this state in which real property owned by the nonresident person
199-7 is located. If the person is not known to own any real property in
199-8 any county in this state the debtor has the right to pay the money
199-9 to the county clerk of the county of this state in which the debtor
199-10 resides. In either case, the debtor's payment to the clerk is for
199-11 the use and benefit and for the account of the nonresident
199-12 creditor. The receipt for the payment signed by the clerk that
199-13 recites the name of the creditor and the post office address of the
199-14 creditor, if known, is binding on the creditor as of the date and
199-15 to the extent of the payment. The clerk shall handle the money
199-16 paid to the clerk by the debtor in the same manner as provided for
199-17 cases of payments to the accounts of residents of this state under
199-18 Subsections (a)-(d) of this section. All applicable provisions of
199-19 Subsections (a)-(d) of this section apply to the handling and
199-20 disposition of money or any increase, dividend, or income paid to
199-21 the clerk for the use, benefit, and account of the nonresident
199-22 creditor.
199-23 (f) If a person who is authorized to withdraw the money does
199-24 not withdraw the money from the clerk as provided for in this
199-25 section, the creditor, after termination of the creditor's
199-26 disability, or the subsequent personal representative of the
199-27 creditor or the creditor's heirs may withdraw, at any time and
200-1 without special bond for the purpose, the money on simply
200-2 exhibiting to the clerk an order of the county or probate court of
200-3 the county where the money is held by the clerk that directs the
200-4 clerk to deliver the money to the creditor, to the creditor's
200-5 personal representative, or to the creditor's heirs named in the
200-6 order. Before the court issues an order under this subsection, the
200-7 person's identity and the person's credentials must be proved to
200-8 the court's satisfaction.
200-9 (g) When it is made to appear to the judge of a county
200-10 court, district court, or other court of this state, by an
200-11 affidavit executed by the superintendent, business manager, or
200-12 field representative of any eleemosynary institution of this state,
200-13 that a certain inmate in the institution is a person who has a
200-14 mental disability, an incapacitated person, or a person whose
200-15 mental illness or mental incapacity, or both, renders the person
200-16 incapable of caring for himself and of managing the person's own
200-17 property and financial affairs, there is no known legal guardian
200-18 appointed for the estate of the inmate, and there is on deposit in
200-19 the court registry a certain sum of money that belongs to the
200-20 inmate that does not exceed $10,000, the court may order the
200-21 disposition of the funds as provided by this subsection. The
200-22 court, on satisfactory proof by affidavit or otherwise that the
200-23 inmate is a person who has a mental disability, an incapacitated
200-24 person, or a person whose mental illness or mental incapacity, or
200-25 both, renders the inmate incapable of caring for the inmate's self
200-26 and of managing the inmate's own property and financial affairs and
200-27 is without a legally appointed guardian of the inmate's estate, may
201-1 by order direct the clerk of the court to pay the money to the
201-2 institution for the use and benefit of the inmate. The state
201-3 institution to which the payment is made may not be required to
201-4 give bond or security for receiving the fund from the court
201-5 registry, and the receipt from the state institution for the
201-6 payment, or the canceled check or warrant by which the payment was
201-7 made, shall be sufficient evidence of the disposition of the
201-8 payment. The clerk of the court is relieved of further
201-9 responsibility for the disposition. On receipt of the money, the
201-10 institution shall deposit all of the amount of money received to
201-11 the trust account of the inmate. The money deposited by the
201-12 institution in the trust account is to be used by or for the
201-13 personal use of the owner of the trust account under the rules or
201-14 custom of the institution in the expenditure of the funds by the
201-15 inmate or for the use and benefit of the inmate by the responsible
201-16 officer of the institution. This subsection is cumulative of all
201-17 other laws affecting the rights of a person who has a mental
201-18 disability, an incapacitated person, or a person who has a mental
201-19 illness and affecting money that belongs to the person as an inmate
201-20 of a state eleemosynary institution. If the inmate dies leaving a
201-21 balance in the inmate's trust account, the balance may be applied
201-22 to the burial expenses of the inmate or applied to the care,
201-23 support, and treatment account of the inmate at the eleemosynary
201-24 institution. After the expenditure of all funds in the trust
201-25 account or after the death of the inmate, the responsible officer
201-26 shall furnish a statement of expenditures of the funds to the
201-27 nearest relative who is entitled to receive the statement. A copy
202-1 of the statement shall be filed with the court that first granted
202-2 the order to dispose of the funds in accordance with the provisions
202-3 of this chapter.
202-4 SUBPART F. SALE OF PROPERTY OF MINOR
202-5 Sec. 889. SALE OF PROPERTY OF A MINOR BY A PARENT WITHOUT
202-6 GUARDIANSHIP. (a) When the value of the minor's interest in real
202-7 or personal property in an estate does not exceed $25,000, a
202-8 natural or adoptive parent of a minor who is not a ward may apply
202-9 to the court for an order to sell the real or personal property of
202-10 a minor in an estate without being appointed guardian. A minor may
202-11 not disaffirm a sale of property pursuant to a court order under
202-12 this section.
202-13 (b) The parent shall apply to the court under oath for the
202-14 sale of the property. Venue for the application under this section
202-15 is the same as venue for an application for the appointment of a
202-16 guardian for a minor. The application must contain:
202-17 (1) a legal description of the real property and a
202-18 description that identifies the personal property;
202-19 (2) the name of the minor and the minor's interest in
202-20 the property;
202-21 (3) the name of the purchaser;
202-22 (4) a statement that the sale of the minor's interest
202-23 in the property is for cash; and
202-24 (5) a statement that all funds received by the parent
202-25 shall be used for the use and benefit of the minor.
202-26 (c) On receipt of the application, the court shall set the
202-27 application for hearing at a date not earlier than five days from
203-1 the date of the filing of the application. If the court deems it
203-2 necessary, the court may cause citation to be issued.
203-3 (d) At the time of the hearing of the application filed
203-4 under this section, the court shall order the sale of the property
203-5 if the court is satisfied from the evidence that the sale is in the
203-6 best interests of the minor. The court may require an independent
203-7 appraisal of the property to be sold to establish the minimum sale
203-8 price.
203-9 (e) When the court enters the order of sale, the purchaser
203-10 of the property shall pay the proceeds of the sale belonging to the
203-11 minor into the court registry.
203-12 (f) Nothing in this section prevents the proceeds deposited
203-13 in the registry from being withdrawn from the court registry under
203-14 Section 885 of this code.
203-15 SUBPART G. NONRESIDENT GUARDIANS
203-16 Sec. 891. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
203-17 FROM STATE. A nonresident guardian, whether or not qualified under
203-18 this code, may remove personal property of the ward out of the
203-19 state if:
203-20 (1) the removal does not conflict with the tenure of
203-21 the property or the terms and limitations of the guardianship under
203-22 which the property is held; and
203-23 (2) all debts known to exist against the estate in
203-24 this state are paid or secured by bond payable to and approved by
203-25 the judge of the court in which guardianship proceedings are
203-26 pending in this state.
203-27 Sec. 892. DELIVERY OF PROPERTY. A resident executor,
204-1 administrator, or guardian who has any of the estate of a ward may
204-2 be ordered by the court to deliver the estate to a duly qualified
204-3 and acting nonresident guardian of the ward.
204-4 SECTION 2. Section 2(e), Texas Probate Code, is amended to
204-5 read as follows:
204-6 (e) Nature of Proceeding. The administration of the estate
204-7 of a decedent <or ward>, from the filing of the application for
204-8 probate and administration, or for administration, until the decree
204-9 of final distribution and the discharge of the last personal
204-10 representative, shall be considered as one proceeding for purposes
204-11 of jurisdiction. The entire proceeding is a proceeding in rem.
204-12 SECTION 3. Section 3, Texas Probate Code, is amended to read
204-13 as follows:
204-14 Sec. 3. Definitions and Use of Terms. Except as otherwise
204-15 provided by Chapter XIII of this Code, when <When> used in this
204-16 Code, unless otherwise apparent from the context:
204-17 (a) "Authorized corporate surety" means a domestic or
204-18 foreign corporation authorized to do business in the State of Texas
204-19 for the purpose of issuing surety, guaranty or indemnity bonds
204-20 guaranteeing the fidelity of executors and<,> administrators<, and
204-21 guardians>.
204-22 (b) "Child" includes an adopted child, whether adopted
204-23 by any existing or former statutory procedure or by acts of
204-24 estoppel, but, unless expressly so stated herein, does not include
204-25 a child who has no presumed father.
204-26 (c) "Claims" include liabilities of a decedent which
204-27 survive, including taxes, whether arising in contract or in tort or
205-1 otherwise, funeral expenses, the expense of a tombstone, expenses
205-2 of administration, estate and inheritance taxes, <liabilities
205-3 against the estate of a minor or incompetent,> and debts due such
205-4 estates.
205-5 (d) "Corporate fiduciary" means a trust company or
205-6 bank having trust powers, existing or doing business under the laws
205-7 of this state or of the United States, which is authorized by law
205-8 to act under the order or appointment of any court of record,
205-9 without giving bond, as <guardian,> receiver, trustee, executor,
205-10 administrator, or, although without general depository powers,
205-11 depository for any moneys paid into court, or to become sole
205-12 guarantor or surety in or upon any bond required to be given under
205-13 the laws of this state.
205-14 (e) "County Court" and "Probate Court" are synonymous
205-15 terms and denote county courts in the exercise of their probate
205-16 jurisdiction, courts created by statute and authorized to exercise
205-17 original probate jurisdiction, and district courts exercising
205-18 probate jurisdiction in contested matters.
205-19 (f) "County Judge," "Probate Judge," and "Judge"
205-20 denote the presiding judge of any court having original
205-21 jurisdiction over probate proceedings, whether it be a county court
205-22 in the exercise of its probate jurisdiction, a court created by
205-23 statute and authorized to exercise probate jurisdiction, or a
205-24 district court exercising probate jurisdiction in contested
205-25 matters.
205-26 (g) "Court" denotes and includes both a county court
205-27 in the exercise of its probate jurisdiction, a court created by
206-1 statute and authorized to exercise original probate jurisdiction,
206-2 or a district court exercising original probate jurisdiction in
206-3 contested matters.
206-4 (h) "Devise," when used as a noun, includes a
206-5 testamentary disposition of real or personal property, or of both.
206-6 When used as a verb, "devise" means to dispose of real or personal
206-7 property, or of both, by will.
206-8 (i) "Devisee" includes legatee.
206-9 (j) "Distributee" denotes a person entitled to the
206-10 estate of a decedent under a lawful will, or under the statutes of
206-11 descent and distribution.
206-12 (k) "Docket" means the probate docket.
206-13 (l) "Estate" denotes the real and personal property of
206-14 a decedent <or ward>, both as such property originally existed and
206-15 as from time to time changed in form by sale, reinvestment, or
206-16 otherwise, and as augmented by any accretions and additions thereto
206-17 (including any property to be distributed to the representative of
206-18 the decedent by the trustee of a trust which terminates upon the
206-19 decedent's death) and substitutions therefor, and as diminished by
206-20 any decreases therein and distributions therefrom.
206-21 (m) "Exempt property" refers to that property of a
206-22 decedent's estate which is exempt from execution or forced sale by
206-23 the Constitution or laws of this State, and to the allowance in
206-24 lieu thereof.
206-25 (n) "Habitual drunkard" and "common drunkard" are
206-26 synonymous and denote one who, by reason of the habitual use of
206-27 intoxicating liquor, drugs, or a toxic inhalant as defined by
207-1 Section 462.001, Health and Safety Code, is incapable of taking
207-2 care of himself or managing his property and financial affairs.
207-3 (o) "Heirs" denote those persons, including the
207-4 surviving spouse, who are entitled under the statutes of descent
207-5 and distribution to the estate of a decedent who dies intestate.
207-6 (p) "Incompetents" or "Incompetent persons" are
207-7 persons non compos mentis, mentally disabled persons, insane
207-8 persons, common or habitual drunkards, and other persons who are
207-9 mentally incompetent to care for themselves or to manage their
207-10 property and financial affairs.
207-11 (q) "Independent executor" means the personal
207-12 representative of an estate under independent administration as
207-13 provided in Section 145 of this Code. The term "independent
207-14 executor" includes the term "independent administrator."
207-15 (r) "Interested persons" or "persons interested" means
207-16 heirs, devisees, spouses, creditors, or any others having a
207-17 property right in, or claim against, the estate being administered;
207-18 and anyone interested in the welfare of a minor or incompetent
207-19 ward.
207-20 (s) "Legacy" includes any gift or devise by will,
207-21 whether of personalty or realty. "Legatee" includes any person
207-22 entitled to a legacy under a will.
207-23 (t) "Minors" are all persons under eighteen years of
207-24 age who have never been married or who have not had disabilities of
207-25 minority removed for general purposes.
207-26 (u) "Minutes" means the probate minutes.
207-27 (v) "Mortgage" or "Lien" includes deed of trust,
208-1 vendor's lien, chattel mortgage, mechanic's, materialman's or
208-2 laborer's lien, judgment, attachment or garnishment lien, pledge by
208-3 hypothecation, and Federal or State tax liens.
208-4 (w) "Net estate" means the real and personal property
208-5 of a decedent, exclusive of homestead rights, exempt property, the
208-6 family allowance and enforceable claims against the estate.
208-7 (x) "Person" includes natural persons and
208-8 corporations.
208-9 (y) "Persons of unsound mind" are persons non compos
208-10 mentis, mentally disabled persons, insane persons, and other
208-11 persons who are mentally incompetent to care for themselves or to
208-12 manage their property and financial affairs.
208-13 (z) "Personal property" includes interests in goods,
208-14 money, choses in action, evidence of debts, and chattels real.
208-15 (aa) "Personal representative" or "Representative"
208-16 includes executor, independent executor, administrator, independent
208-17 administrator, temporary administrator, <guardian, and temporary
208-18 guardian,> together with their successors. The inclusion of
208-19 independent executors herein shall not be held to subject such
208-20 representatives to control of the courts in probate matters with
208-21 respect to settlement of estates except as expressly provided by
208-22 law.
208-23 (bb) "Probate matter," "Probate proceedings,"
208-24 "Proceeding in probate," and "Proceedings for probate" are
208-25 synonymous and include a matter or proceeding relating to
208-26 <guardianship, as well as a matter or proceeding relating to> the
208-27 estate of a decedent<, and proceedings regarding incompetents>.
209-1 (cc) "Property" includes both real and personal
209-2 property.
209-3 (dd) "Real property" includes estates and interests in
209-4 lands, corporeal or incorporeal, legal or equitable, other than
209-5 chattels real.
209-6 (ee) "Surety" includes both personal and corporate
209-7 sureties.
209-8 (ff) "Will" includes codicil; it also includes a
209-9 testamentary instrument which merely:
209-10 (1) appoints an executor or guardian;
209-11 (2) directs how property may not be disposed of;
209-12 or
209-13 (3) revokes another will.
209-14 (gg) The singular number includes the plural; the
209-15 plural number includes the singular.
209-16 (hh) The masculine gender includes the feminine and
209-17 neuter.
209-18 (ii) "Statutory probate court" refers to any statutory
209-19 court presently in existence or created after the passage of this
209-20 Act, the jurisdiction of which is limited by statute to the general
209-21 jurisdiction of a probate court, and such courts whose statutorily
209-22 designated name contains the word "probate." County courts at law
209-23 exercising probate jurisdiction are not statutory probate courts
209-24 under this Code unless their statutorily designated name includes
209-25 the word "probate."
209-26 (jj) "Next of kin" includes an adopted child or his or
209-27 her descendents and the adoptive parent of the adopted child.
210-1 (kk) "Charitable organization" means:
210-2 (1) a nonprofit corporation, trust, community
210-3 chest, fund, foundation, or other entity that is exempt from
210-4 federal income tax under Section 501(c)(3) of the Internal Revenue
210-5 Code of 1986 because the entity is organized and operated
210-6 exclusively for religious, charitable, scientific, educational, or
210-7 literary purposes, testing for public safety, prevention of cruelty
210-8 to children or animals, or promotion of amateur sports competition;
210-9 or
210-10 (2) any other entity or organization that is
210-11 organized and operated exclusively for the purposes listed in
210-12 Section 501(c)(3) of the Internal Revenue Code of 1986.
210-13 (ll) "Governmental agency of the state" means:
210-14 (1) an incorporated city or town, a county, a
210-15 public school district, a special-purpose district or authority, or
210-16 a district, county, or justice of the peace court;
210-17 (2) a board, commission, department, office, or
210-18 other agency in the executive branch of state government, including
210-19 an institution of higher education as defined by Section 61.003,
210-20 Education Code;
210-21 (3) the legislature or a legislative agency; and
210-22 (4) the supreme court, the court of criminal
210-23 appeals, a court of appeals, or the State Bar of Texas or another
210-24 judicial agency having statewide jurisdiction.
210-25 SECTION 4. Section 4, Texas Probate Code, is amended to read
210-26 as follows:
210-27 Sec. 4. Jurisdiction of County Court With Respect to Probate
211-1 Proceedings. The county court shall have the general jurisdiction
211-2 of a probate court. It shall probate wills, <appoint guardians of
211-3 minors and incompetents,> grant letters testamentary and of
211-4 administration <and guardianship>, settle accounts of personal
211-5 representatives, and transact all business appertaining to estates
211-6 subject to administration <or guardianship>, including the
211-7 settlement, partition, and distribution of such estates. <It may
211-8 also appoint guardians for other persons where it is necessary that
211-9 a guardian be appointed to receive funds from any governmental
211-10 source or agency.>
211-11 SECTION 5. Sections 5(a), (b), (c), and (e), Texas Probate
211-12 Code, are amended to read as follows:
211-13 (a) The district court shall have original control and
211-14 jurisdiction over executors and<,> administrators<, guardians and
211-15 wards> under such regulations as may be prescribed by law.
211-16 (b) In those counties where there is no statutory probate
211-17 court, county court at law or other statutory court exercising the
211-18 jurisdiction of a probate court, all applications, petitions and
211-19 motions regarding probate and<,> administrations<, guardianships,
211-20 limited guardianships, and mental illness matters> shall be filed
211-21 and heard in the county court, except that in contested probate
211-22 matters, the judge of the county court may on his own motion (or
211-23 shall on the motion of any party to the proceeding, according to
211-24 the motion) request as provided by Section 25.0022, Government
211-25 Code, the assignment of a statutory probate judge to hear the
211-26 contested portion of the proceeding, or transfer the contested
211-27 portion of the proceeding to the district court, which may then
212-1 hear contested matter as if originally filed in district court.
212-2 The county court shall continue to exercise jurisdiction over the
212-3 management of the estate with the exception of the contested matter
212-4 until final disposition of the contested matter is made by the
212-5 assigned judge or the district court. In contested matters
212-6 transferred to the district court in those counties, the district
212-7 court, concurrently with the county court, shall have the general
212-8 jurisdiction of a probate court. Upon resolution of all pending
212-9 contested matters, the contested portion of the probate proceeding
212-10 shall be transferred by the district court to the county court for
212-11 further proceedings not inconsistent with the orders of the
212-12 district court. If a contested portion of the proceeding is
212-13 transferred to a district court under this subsection, the clerk of
212-14 the district court may perform in relation to the transferred
212-15 portion of the proceeding any function a county clerk may perform
212-16 in that type of contested proceeding.
212-17 (c) In those counties where there is a statutory probate
212-18 court, county court at law, or other statutory court exercising the
212-19 jurisdiction of a probate court, all applications, petitions and
212-20 motions regarding probate and<,> administrations<, guardianships,
212-21 limited guardianships, and mental illness matters> shall be filed
212-22 and heard in such courts and the constitutional county court,
212-23 rather than in the district courts, unless otherwise provided by
212-24 the legislature, and the judges of such courts may hear any of such
212-25 matters sitting for the judge of any of such courts. In contested
212-26 probate matters, the judge of the constitutional county court may
212-27 on his own motion, and shall on the motion of any party to the
213-1 proceeding, transfer the proceeding to the statutory probate court,
213-2 county court at law, or other statutory court exercising the
213-3 jurisdiction of a probate court, which may then hear the proceeding
213-4 as if originally filed in such court.
213-5 (e) All courts exercising original probate jurisdiction
213-6 shall have the power to hear all matters incident to an estate.
213-7 When a surety is called on to perform in place of an administrator
213-8 <or guardian>, all courts exercising original probate jurisdiction
213-9 may award judgment against the personal representative in favor of
213-10 his surety in the same suit.
213-11 SECTION 6. Sections 5A(a) and (b), Texas Probate Code, are
213-12 amended to read as follows:
213-13 (a) In proceedings in the constitutional county courts and
213-14 statutory county courts at law, the phrases "appertaining to
213-15 estates" and "incident to an estate" in this Code include the
213-16 probate of wills, the issuance of letters testamentary and of
213-17 administration, the determination of heirship, and also include,
213-18 but are not limited to, all claims by or against an estate, all
213-19 actions for trial of title to land incident to an estate and for
213-20 the enforcement of liens thereon incident to an estate, all actions
213-21 for trial of the right of property incident to an estate, and
213-22 actions to construe wills, and generally all matters relating to
213-23 the settlement, partition, and distribution of estates of <wards
213-24 and> deceased persons.
213-25 (b) In proceedings in the statutory probate courts and
213-26 district courts, the phrases "appertaining to estates" and
213-27 "incident to an estate" in this Code include the probate of wills,
214-1 the issuance of letters testamentary and of administration, and the
214-2 determination of heirship, and also include, but are not limited
214-3 to, all claims by or against an estate, all actions for trial of
214-4 title to land and for the enforcement of liens thereon, all actions
214-5 for trial of the right of property, all actions to construe wills,
214-6 the interpretation and administration of testamentary trusts and
214-7 the applying of constructive trusts, and generally all matters
214-8 relating to the settlement, partition, and distribution of estates
214-9 of <wards and> deceased persons. All statutory probate courts may,
214-10 in the exercise of their jurisdiction, notwithstanding any other
214-11 provisions of this Code, hear all suits, actions, and applications
214-12 filed against or on behalf of any <guardianship,> heirship
214-13 proceeding<,> or decedent's estate, including estates administered
214-14 by an independent executor. This subsection shall be construed in
214-15 conjunction with and in harmony with Section 145 and all other
214-16 sections of this Code dealing with independent executors, but shall
214-17 not be construed so as to increase permissible judicial control
214-18 over independent executors. All statutory probate courts shall
214-19 have the same powers over independent executors that are
214-20 exercisable by the district courts. In situations where the
214-21 jurisdiction of a statutory probate court is concurrent with that
214-22 of a district court, any cause of action appertaining to estates or
214-23 incident to an estate shall be brought in a statutory probate court
214-24 rather than in the district court.
214-25 SECTION 7. Section 12(c), Texas Probate Code, is amended to
214-26 read as follows:
214-27 (c) Suit for Fiduciary. No security for costs shall be
215-1 required of an executor or<,> administrator<, or guardian>
215-2 appointed by a court of this state in any suit brought by him in
215-3 his fiduciary character.
215-4 SECTION 8. Section 13, Texas Probate Code, is amended to
215-5 read as follows:
215-6 Sec. 13. Judge's Probate Docket. The county clerk shall
215-7 keep a record book to be styled "Judge's Probate Docket," and shall
215-8 enter therein:
215-9 (a) The name of each person upon whose person or
215-10 estate proceedings are had or sought to be had.
215-11 (b) The name of the executor or administrator <or
215-12 guardian of such estate or person,> or of the applicant for
215-13 letters.
215-14 (c) The date of the filing of the original application
215-15 for probate proceedings.
215-16 (d) A minute of each order, judgment, decree, and
215-17 proceeding had in each estate, with the date thereof.
215-18 (e) A number for each estate upon the docket in the
215-19 order in which proceedings are commenced, and each paper filed in
215-20 an estate shall be given the corresponding docket number of the
215-21 estate.
215-22 SECTION 9. Section 14, Texas Probate Code, is amended to
215-23 read as follows:
215-24 Sec. 14. Claim Docket. The county clerk shall also keep a
215-25 record book to be styled "Claim Docket," and shall enter therein
215-26 all claims presented against an estate for approval by the court.
215-27 This docket shall be ruled in sixteen columns at proper intervals
216-1 from top to bottom, with a short note of the contents at the top of
216-2 each column. One or more pages shall be assigned to each estate.
216-3 The following information shall be entered in the respective
216-4 columns beginning with the first or marginal column: The names of
216-5 claimants in the order in which their claims are filed; the amount
216-6 of the claim; its date; the date of filing; when due; the date from
216-7 which it bears interest; the rate of interest; when allowed by the
216-8 executor or administrator <or guardian>; the amount allowed; the
216-9 date of rejection; when approved; the amount approved; when
216-10 disapproved; the class to which the claim belongs; when established
216-11 by judgment of a court; the amount of such judgment.
216-12 SECTION 10. Section 15, Texas Probate Code, is amended to
216-13 read as follows:
216-14 Sec. 15. Probate Minutes and Papers to be Recorded Therein.
216-15 The county clerk shall keep a record book styled "Probate Minutes,"
216-16 and shall enter therein in full all orders, judgments, decrees, and
216-17 proceedings of the court, together with the following:
216-18 (a) All applications for the probate of wills and for
216-19 the granting of administration <or guardianship>.
216-20 (b) All citations and notices, whether published or
216-21 posted, with the returns thereon.
216-22 (c) All wills and the testimony upon which the same
216-23 are admitted to probate, provided that the substance only of
216-24 depositions shall be recorded.
216-25 (d) All bonds and official oaths.
216-26 (e) All inventories, appraisements, and lists of
216-27 claims.
217-1 (f) All exhibits and accounts.
217-2 (g) All reports of hiring, renting, or sale.
217-3 (h) All applications for sale or partition of real
217-4 estate and reports of sale and of commissioners of partition.
217-5 (i) All applications for authority to execute leases
217-6 for mineral development, or for pooling or unitization of lands,
217-7 royalty, or other interest in minerals, or to lend or invest money.
217-8 (j) All reports of lending or investing money.
217-9 SECTION 11. Section 19, Texas Probate Code, is amended to
217-10 read as follows:
217-11 Sec. 19. Call of the Dockets. The judge of the court in
217-12 which probate proceedings are pending, at such times as he shall
217-13 determine, shall call the estates of decedents<, minors and
217-14 incompetents> in their regular order upon both the probate and
217-15 claim dockets and make such orders as shall be necessary.
217-16 SECTION 12. Section 24, Texas Probate Code, is amended to
217-17 read as follows:
217-18 Sec. 24. Enforcement of Orders. The county or probate judge
217-19 may enforce obedience to all his lawful orders against executors
217-20 and<,> administrators <and guardians> by attachment and
217-21 imprisonment, but no such imprisonment shall exceed three days for
217-22 any one offense, unless otherwise expressly so provided in this
217-23 Code.
217-24 SECTION 13. Section 26, Texas Probate Code, is amended to
217-25 read as follows:
217-26 Sec. 26. Attachments for Property. Whenever complaint in
217-27 writing, under oath, shall be made to the county or probate judge
218-1 by any person interested in the estate of a decedent<, minor or
218-2 incompetent> that the executor or administrator <or guardian> is
218-3 about to remove said estate, or any part thereof, beyond the limits
218-4 of the State, such judge may order a writ to issue, directed "to
218-5 any sheriff or any constable within the State of Texas," commanding
218-6 him to seize such estate, or any part thereof, and hold the same
218-7 subject to such further orders as such judge shall make on such
218-8 complaint. No such writ shall issue unless the complainant shall
218-9 give bond, in such sum as the judge shall require, payable to the
218-10 executor or administrator <or guardian> of such estate, conditioned
218-11 for the payment of all damages and costs that shall be recovered
218-12 for the wrongful suing out of such writ. Provided, however, that
218-13 no writ of attachment directed to the sheriff or any constable of a
218-14 specific county within this State shall be held defective if such
218-15 writ was properly executed within such county by such officer.
218-16 SECTION 14. Section 28, Texas Probate Code, is amended to
218-17 read as follows:
218-18 Sec. 28. Personal Representative to Serve Pending Appeal of
218-19 Appointment. Pending appeals from orders or judgments appointing
218-20 administrators <or guardians> or temporary administrators <or
218-21 guardians>, the appointees shall continue to act as such and shall
218-22 continue the prosecution of any suits then pending in favor of the
218-23 estate.
218-24 SECTION 15. Section 29, Texas Probate Code, is amended to
218-25 read as follows:
218-26 Sec. 29. Appeal Bonds of Personal Representatives. When an
218-27 appeal is taken by an executor or<,> administrator<, or guardian>,
219-1 no bond shall be required, unless such appeal personally concerns
219-2 him, in which case he must give the bond.
219-3 SECTION 16. Section 31, Texas Probate Code, is amended to
219-4 read as follows:
219-5 Sec. 31. Bill of Review. Any person interested may, by a
219-6 bill of review filed in the court in which the probate proceedings
219-7 were had, have any decision, order, or judgment rendered by the
219-8 court, or by the judge thereof, revised and corrected on showing
219-9 error therein; but no process or action under such decision, order
219-10 or judgment shall be stayed except by writ of injunction, and no
219-11 bill of review shall be filed after two years have elapsed from the
219-12 date of such decision, order, or judgment. <Persons non compos
219-13 mentis and minors shall have two years after the removal of their
219-14 respective disabilities within which to apply for a bill of
219-15 review.>
219-16 SECTION 17. Section 32, Texas Probate Code, is amended to
219-17 read as follows:
219-18 Sec. 32. Common Law Applicable. The rights, powers and
219-19 duties of executors and<,> administrators<, and guardians> shall be
219-20 governed by the principles of the common law, when the same do not
219-21 conflict with the provisions of the statutes of this State.
219-22 SECTION 18. Section 33(j), Texas Probate Code, is amended to
219-23 read as follows:
219-24 (j) Request for Notice. At any time after an application is
219-25 filed for the purpose of commencing any proceeding in probate,
219-26 including, but not limited to, a proceeding for the probate of a
219-27 will, grant of letters testamentary or of administration and<,>
220-1 determination of heirship, <and the grant of letters of
220-2 guardianship,> any person interested in the estate <or welfare of a
220-3 ward,> may file with the clerk a request in writing that he be
220-4 notified of any and all, or of any specifically designated,
220-5 motions, applications, or pleadings filed by any person, or by any
220-6 particular persons specifically designated in the request. The
220-7 fees and costs for such notices shall be borne by the person
220-8 requesting them, and the clerk may require a deposit to cover the
220-9 estimated costs of furnishing such person with the notice or
220-10 notices requested. The clerk shall thereafter send to such person
220-11 by ordinary mail copies of any of the documents specified in the
220-12 request. Failure of the clerk to comply with the request shall not
220-13 invalidate any proceeding.
220-14 SECTION 19. Section 34A, Texas Probate Code, is amended to
220-15 read as follows:
220-16 Sec. 34A. <GUARDIANS AND> Attorneys Ad Litem. The judge of
220-17 a probate court may appoint <a guardian ad litem,> an attorney ad
220-18 litem<, or, if necessary, both,> to represent the interests of a
220-19 person having a legal disability, a nonresident, an unborn or
220-20 unascertained person, or an unknown heir in any probate proceeding.
220-21 Each <guardian ad litem and> attorney ad litem appointed under this
220-22 section is entitled to reasonable compensation for services in the
220-23 amount set by the court and to be taxed as costs in the proceeding.
220-24 SECTION 20. Section 35, Texas Probate Code, is amended to
220-25 read as follows:
220-26 Sec. 35. Waiver of Notice. Any person legally competent who
220-27 is interested in any hearing in a proceeding in probate may, in
221-1 person or by attorney, waive in writing notice of such hearing. A
221-2 <guardian of the estate or a guardian ad litem may make such a
221-3 waiver on behalf of his ward, and a> trustee may make such a waiver
221-4 on behalf of the beneficiary of his trust. A consul or other
221-5 representative of a foreign government, whose appearance has been
221-6 entered as provided by law on behalf of any person residing in a
221-7 foreign country, may make such waiver of notice on behalf of such
221-8 person. Any person who submits to the jurisdiction of the court in
221-9 any hearing shall be deemed to have waived notice thereof.
221-10 SECTION 21. Section 36, Texas Probate Code, is amended to
221-11 read as follows:
221-12 Sec. 36. Duty and Responsibility of Judge. It shall be the
221-13 duty of each county and probate court to use reasonable diligence
221-14 to see that personal representatives of estates being administered
221-15 under orders of the court<, guardians of the persons of wards,> and
221-16 other officers of the court<,> perform the duty enjoined upon them
221-17 by law pertaining to such estates <and wards>. The judge shall
221-18 annually, if in his opinion the same be necessary, examine the
221-19 condition of each of said estates<, the well-being of each ward of
221-20 the court,> and the solvency of the bonds of personal
221-21 representatives of estates <estate and guardians of persons>. He
221-22 shall, at any time he finds that the personal representative's bond
221-23 is not sufficient to protect such estate <or ward>, require such
221-24 personal representatives to execute a new bond in accordance with
221-25 law. In each case, he shall notify the personal representative,
221-26 and the sureties on the bond, as provided by law; and should damage
221-27 or loss result to estates <or wards> through the gross neglect of
222-1 the judge to use reasonable diligence in the performance of his
222-2 duty, he shall be liable on his bond to those damaged by such
222-3 neglect.
222-4 SECTION 22. The heading to Chapter V, Texas Probate Code, is
222-5 amended to read as follows:
222-6 CHAPTER V. PROBATE AND<,> GRANT OF ADMINISTRATION<,
222-7 AND GUARDIANSHIP>
222-8 SECTION 23. The heading to Chapter VI, Texas Probate Code,
222-9 is amended to read as follows:
222-10 CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION
222-11 <AND GUARDIANSHIP>
222-12 SECTION 24. The heading to Part 1, Chapter VI, Texas Probate
222-13 Code, is amended to read as follows:
222-14 PART 1. TEMPORARY ADMINISTRATION IN THE INTEREST OF <(A)>
222-15 ESTATES OF DEPENDENTS<, AND (B) PERSONS OR ESTATES OF MINORS
222-16 AND INCOMPETENTS>
222-17 SECTION 25. Section 133, Texas Probate Code, is amended to
222-18 read as follows:
222-19 Sec. 133. Powers of Temporary ADMINISTRATORS <Appointees>.
222-20 <(a) Temporary Administrators.> Temporary administrators shall
222-21 have and exercise only such rights and powers as are specifically
222-22 expressed in the order of the court appointing them, and as may be
222-23 expressed in subsequent orders of the court. Where a court, by a
222-24 subsequent order, extends the rights and powers of a temporary
222-25 administrator, it may require additional bond commensurate with
222-26 such extension. Any acts performed by temporary administrators
222-27 that are not so expressly authorized shall be void.
223-1 <(b) Temporary Guardianships. All the provisions of this
223-2 Code relating to the guardianship of persons and estates of minors,
223-3 persons of unsound mind, and habitual drunkards shall apply to
223-4 temporary guardianship of the persons and estates of such persons,
223-5 in so far as the same are applicable.>
223-6 SECTION 26. The heading to Section 135, Texas Probate Code,
223-7 is amended to read as follows:
223-8 Sec. 135. Closing Temporary Administration <or Guardianship>
223-9 SECTION 27. The heading to Chapter VII, Texas Probate Code,
223-10 is amended to read as follows:
223-11 CHAPTER VII. EXECUTORS AND<,> ADMINISTRATORS<,
223-12 AND GUARDIANS>
223-13 SECTION 28. Section 186, Texas Probate Code, is amended to
223-14 read as follows:
223-15 Sec. 186. Letters or Certificate Made Evidence. Letters
223-16 testamentary or<,> of administration<, or of guardianship,> or a
223-17 certificate of the clerk of the court which granted the same, under
223-18 the seal of such court, that said letters have been issued, shall
223-19 be sufficient evidence of the appointment and qualification of the
223-20 personal representative of an estate <or ward> and of the date of
223-21 qualification.
223-22 SECTION 29. Section 189, Texas Probate Code, is amended to
223-23 read as follows:
223-24 Sec. 189. How Executors AND<,> Administrators<, and
223-25 Guardians> Shall Qualify. A personal representative shall be
223-26 deemed to have duly qualified when he shall have taken and filed
223-27 his oath and made the required bond, had the same approved by the
224-1 judge, and filed it with the clerk. In case of an executor <or
224-2 guardian> who is not required to make bond, he shall be deemed to
224-3 have duly qualified when he shall have taken and filed his oath
224-4 required by law.
224-5 SECTION 30. Section 192, Texas Probate Code, is amended to
224-6 read as follows:
224-7 Sec. 192. Time for Taking Oath and Giving Bond. The oath of
224-8 a personal representative may be taken and subscribed, or his bond
224-9 may be given and approved, at any time before the expiration of
224-10 twenty days after the date of the order granting letters
224-11 testamentary or of administration <or of guardianship>, as the case
224-12 may be, or before such letters shall have been revoked for a
224-13 failure to qualify within the time allowed. All such oaths may be
224-14 taken before any person authorized to administer oaths under the
224-15 laws of this State.
224-16 SECTION 31. Section 194, Texas Probate Code, is amended to
224-17 read as follows:
224-18 Sec. 194. Bonds of Personal Representatives of Estates.
224-19 Except when bond is not required under the provisions of this Code,
224-20 before the issuance of letters testamentary<,> or of administration
224-21 <or guardianship of estates>, the recipient of letters shall enter
224-22 into bond conditioned as required by law, payable to the county
224-23 judge or probate judge of the county in which the probate
224-24 proceedings are pending and to his successors in office. Such
224-25 bonds shall bear the written approval of either of such judges in
224-26 his official capacity, and shall be executed and approved in
224-27 accordance with the following rules:
225-1 1. Court to Fix Penalty. The penalty of the bond
225-2 shall be fixed by the judge, in an amount deemed sufficient to
225-3 protect the estate and its creditors, as hereinafter provided.
225-4 2. Bond to Protect Creditors Only, When. If the
225-5 person to whom letters testamentary or of administration is granted
225-6 is also entitled to all of the decedent's estate, after payment of
225-7 debts, the bond shall be in an amount sufficient to protect
225-8 creditors only, notwithstanding the rules applicable generally to
225-9 bonds of personal representatives of estates.
225-10 3. Before Fixing Penalty, Court to Hear Evidence. In
225-11 any case where a bond is, or shall be, required of a personal
225-12 representative of an estate, the court shall, before fixing the
225-13 penalty of the bond, hear evidence and determine:
225-14 (a) The amount of cash on hand and where
225-15 deposited, and the amount of cash estimated to be needed for
225-16 administrative purposes, including operation of a business,
225-17 factory, farm or ranch owned by the estate, and expenses of
225-18 administration for one (1) year; and
225-19 (b) The revenue anticipated to be received in
225-20 the succeeding twelve (12) months from dividends, interest,
225-21 rentals, or use of real or personal property belonging to the
225-22 estate and the aggregate amount of any installments or periodical
225-23 payments to be collected; and
225-24 (c) The estimated value of certificates of
225-25 stock, bonds, notes, or securities of the estate or ward, the name
225-26 of the depository, if any, in which said assets are held for
225-27 safekeeping, the face value of life insurance or other policies
226-1 payable to the person on whose estate administration is sought, or
226-2 to such estate, and such other personal property as is owned by the
226-3 estate, or by one under disability; and
226-4 (d) The estimated amount of debts due and owing
226-5 by the estate or ward.
226-6 4. Penalty of Bond. The penalty of the bond shall be
226-7 fixed by the judge in an amount equal to the estimated value of all
226-8 personal property belonging to the estate, or to the person under
226-9 disability, together with an additional amount to cover revenue
226-10 anticipated to be derived during the succeeding twelve (12) months
226-11 from interest, dividends, collectible claims, the aggregate amount
226-12 of any installments or periodical payments exclusive of income
226-13 derived or to be derived from federal social security payments, and
226-14 rentals for use of real and personal property; provided, that the
226-15 penalty of the original bond shall be reduced in proportion to the
226-16 amount of cash or value of securities or other assets authorized or
226-17 required to be deposited or placed in safekeeping by order of
226-18 court, or voluntarily made by the representative or by his sureties
226-19 as hereinafter provided in Subdivisions 6 and 7 hereof.
226-20 5. Agreement as to Deposit of Assets. It shall be
226-21 lawful, and the court may require such action when deemed in the
226-22 best interest of an estate <or ward>, for a personal representative
226-23 to agree with the surety or sureties, either corporate or personal,
226-24 for the deposit of any or all cash, and safekeeping of other assets
226-25 of the estate in a domestic state or national bank, trust company,
226-26 savings and loan association, or other domestic corporate
226-27 depository, duly incorporated and qualified to act as such under
227-1 the laws of this State or of the United States, if such deposit is
227-2 otherwise proper, in such manner as to prevent the withdrawal of
227-3 such moneys or other assets without the written consent of the
227-4 surety, or an order of the court made on such notice to the surety
227-5 as the court shall direct. No such agreement shall in any manner
227-6 release from or change the liability of the principal or sureties
227-7 as established by the terms of the bond.
227-8 6. Deposits Authorized or Required, When. Cash or
227-9 securities or other personal assets of an estate <or ward> or which
227-10 an estate <or ward> is entitled to receive may, and if deemed by
227-11 the court in the best interest of such estate <or ward> shall, be
227-12 deposited or placed in safekeeping as the case may be, in one or
227-13 more of the depositories hereinabove described upon such terms as
227-14 shall be prescribed by the court. The court in which the
227-15 proceedings are pending, upon its own motion, or upon written
227-16 application of the representative or of any other person interested
227-17 in the estate <or ward> may authorize or require additional assets
227-18 of the estate then on hand or as they accrue during the pendency of
227-19 the probate proceedings to be deposited or held in safekeeping as
227-20 provided above. The amount of the bond of the personal
227-21 representative shall be reduced in proportion to the cash so
227-22 deposited, or the value of the securities or other assets placed in
227-23 safekeeping. Such cash so deposited, or securities or other assets
227-24 held in safekeeping, or portions thereof, may be withdrawn from a
227-25 depository only upon order of the court, and the bond of the
227-26 personal representative shall be increased in proportion to the
227-27 amount of cash or the value of securities or other assets so
228-1 authorized to be withdrawn.
228-2 7. Representative May Deposit Cash or Securities of
228-3 His Own in Lieu of Bond. It shall be lawful for the personal
228-4 representative of an estate, in lieu of giving surety or sureties
228-5 on any bond which shall be required of him, or for the purpose of
228-6 reducing the amount of such bond, to deposit out of his own assets
228-7 cash or securities acceptable to the court, with a depository such
228-8 as named above or with any other corporate depository approved by
228-9 the court, if such deposit is otherwise proper, said deposit to be
228-10 equal in amount or value to the amount of the bond required, or the
228-11 bond reduced by the value of assets so deposited.
228-12 8. Rules Applicable to Making and Handling Deposits in
228-13 Lieu of Bond or to Reduce Penal Sum of Bond. (a) A receipt for a
228-14 deposit in lieu of surety or sureties shall be issued by the
228-15 depository, showing the amount of cash or, if securities, the
228-16 amount and description thereof, and agreeing not to disburse or
228-17 deliver the same except upon receipt of a certified copy of an
228-18 order of the court in which the proceedings are pending, and such
228-19 receipt shall be attached to the representative's bond and be
228-20 delivered to and filed by the county clerk after approval by the
228-21 judge.
228-22 (b) The amount of cash or securities on deposit
228-23 may be increased or decreased, by order of the court from time to
228-24 time, as the interest of the estate shall require.
228-25 (c) Deposits in lieu of sureties on bonds,
228-26 whether of cash or securities, may be withdrawn or released only on
228-27 order of a court having jurisdiction.
229-1 (d) Creditors shall have the same rights against
229-2 the representative and such deposits as are provided for recovery
229-3 against sureties on a bond.
229-4 (e) The court may on its own motion, or upon
229-5 written application by the representative or by any other person
229-6 interested in the estate, require that adequate bond be given by
229-7 the representative in lieu of such deposit, or authorize withdrawal
229-8 of the deposit and substitution of a bond with sureties therefor.
229-9 In either case, the representative shall file a sworn statement
229-10 showing the condition of the estate, and unless the same be filed
229-11 within twenty (20) days after being personally served with notice
229-12 of the filing of an application by another, or entry of the court's
229-13 motion, he shall be subject to removal as in other cases. The
229-14 deposit may not be released or withdrawn until the court has been
229-15 satisfied as to the condition of the estate, has determined the
229-16 amount of bond, and has received and approved the bond.
229-17 9. Withdrawal of Deposits when Estate Closed. Upon
229-18 the closing of an estate, any such deposit or portion thereof
229-19 remaining on hand, whether of the assets of the representative, or
229-20 of the assets of the estate, or of the surety, shall be released by
229-21 order of court and paid over to the person or persons entitled
229-22 thereto. No writ of attachment or garnishment shall lie against
229-23 the deposit, except as to claims of creditors of the estate being
229-24 administered, or persons interested therein, including distributees
229-25 and wards, and then only in the event distribution has been ordered
229-26 by the court, and to the extent only of such distribution as shall
229-27 have been ordered.
230-1 10. Who May Act as Sureties. The surety or sureties
230-2 on said bonds may be authorized corporate sureties, or personal
230-3 sureties.
230-4 11. Procedure When Bond Exceeds Fifty Thousand Dollars
230-5 ($50,000). When any such bond shall exceed Fifty Thousand Dollars
230-6 ($50,000) in penal sum, the court may require that such bond be
230-7 signed by two (2) or more authorized corporate sureties, or by one
230-8 such surety and two (2) or more good and sufficient personal
230-9 sureties. The estate shall pay the cost of a bond with corporate
230-10 sureties.
230-11 12. Qualifications of Personal Sureties. If the
230-12 sureties be natural persons, there shall not be less than two (2),
230-13 each of whom shall make affidavit in the manner prescribed in this
230-14 Code, and the judge shall be satisfied that he owns property within
230-15 this State, over and above that exempt by law, sufficient to
230-16 qualify as a surety as required by law. Except as provided by
230-17 law, only one surety is required if the surety is an authorized
230-18 corporate surety; provided, a personal surety, instead of making
230-19 affidavit, or creating a lien on specific real estate when such is
230-20 required, may, in the same manner as a personal representative,
230-21 deposit his own cash or securities, in lieu of pledging real
230-22 property as security, subject, so far as applicable, to the
230-23 provisions covering such deposits when made by personal
230-24 representatives.
230-25 13. Bonds of Temporary Appointees. In case of a
230-26 temporary administrator <or guardian>, the bond shall be in such
230-27 sum as the judge shall direct.
231-1 14. <Only One Bond for Guardian of Person and Estate.
231-2 Where one person is appointed guardian of both the person and
231-3 estate of a ward, only one bond shall be given by the guardian, in
231-4 the same amount that would be required from a guardian of the
231-5 estate only.>
231-6 <15.> Increased or Additional Bonds When Property
231-7 Sold, Rented, Leased for Mineral Development, or Money Borrowed or
231-8 Invested. The provisions in this Section with respect to deposit
231-9 of cash and safekeeping of securities shall cover, so far as they
231-10 may be applicable, the orders to be entered by the court when real
231-11 or personal property of an estate has been authorized to be sold or
231-12 rented, or money borrowed thereon, or when real property, or an
231-13 interest therein, has been authorized to be leased for mineral
231-14 development or subjected to unitization, the general bond having
231-15 been found insufficient<, or when money is borrowed or invested on
231-16 behalf of a ward>.
231-17 SECTION 32. Section 196, Texas Probate Code, is amended to
231-18 read as follows:
231-19 Sec. 196. Form of Bond. The following form, or the same in
231-20 substance, may be used for the bonds of personal representatives:
231-21 "The State of Texas
231-22 "County of ______
231-23 "Know all men by these presents that we, A. B., as principal,
231-24 and E. F., as sureties, are held and firmly bound unto the county
231-25 (or probate) judge of the County of ______, and his successors in
231-26 office, in the sum of ______ Dollars; conditioned that the above
231-27 bound A. B., who has been appointed executor of the last will and
232-1 testament of J. C., deceased (or has been appointed by the said
232-2 judge of ______ County, administrator with the will annexed of the
232-3 estate of J. C., deceased, or has been appointed by the said judge
232-4 of ______ County, administrator of the estate of J. C., deceased,
232-5 or has been appointed by the said judge of ______ County, temporary
232-6 administrator of the estate of J. C., deceased, as the case may
232-7 be<, or has been appointed by the judge of said county as guardian
232-8 or temporary guardian of the estate, or of the person or person and
232-9 estate of ______, stating in each case whether or not such person
232-10 is a minor or a person of unsound mind or an habitual drunkard or a
232-11 person for whom a guardian is necessary to receive funds or money
232-12 from a governmental source>), shall well and truly perform all of
232-13 the duties required of him by law under said appointment."
232-14 SECTION 33. Section 200, Texas Probate Code, is amended to
232-15 read as follows:
232-16 Sec. 200. Bond of Married Person Under Eighteen Years of
232-17 Age. When a person under eighteen years of age who is or has been
232-18 married shall accept and qualify as executor or<,> administrator,
232-19 <or guardian,> any bond required to be executed by him shall be as
232-20 valid and binding for all purposes as if he were of lawful age.
232-21 SECTION 34. Sections 214, 215, 216, and 217, Texas Probate
232-22 Code, are amended to read as follows:
232-23 Sec. 214. Executor <or Guardian> Without Bond Required to
232-24 Give Bond. Where no bond is required of an executor <or guardian>
232-25 appointed by will, any person having a debt, claim, or demand
232-26 against the estate, to the justice of which oath has been made by
232-27 himself, his agent, or attorney, or any other person interested in
233-1 such estate, whether in person or as the representative of another,
233-2 may file a complaint in writing in the court where such will is
233-3 probated, and the court shall thereupon cite such executor <or
233-4 guardian> to appear and show cause why he should not be required to
233-5 give bond.
233-6 Sec. 215. Order Requiring Bond. Upon hearing such
233-7 complaint, if it appears to the court that such executor <or
233-8 guardian> is wasting, mismanaging, or misapplying such estate, and
233-9 that thereby a creditor may probably lose his debt, or that thereby
233-10 some person's interest in the estate may be diminished or lost, the
233-11 court shall enter an order requiring such executor <or guardian> to
233-12 give bond within ten days from the date of such order.
233-13 Sec. 216. Bond in Such Case. Such bond shall be for an
233-14 amount sufficient to protect the estate and its creditors, to be
233-15 approved by, and payable to, the judge, conditioned that said
233-16 executor <or guardian> will well and truly administer such estate,
233-17 and that he will not waste, mismanage, or misapply the same.
233-18 Sec. 217. Failure to Give Bond. Should the executor <or
233-19 guardian> fail to give such bond within ten days after the order
233-20 requiring him to do so, then if the judge does not extend the time,
233-21 he shall, without citation, remove such executor <or guardian> and
233-22 appoint some competent person in his stead who shall administer the
233-23 estate according to the provisions of such will or the law, and
233-24 who, before he enters upon the administration of said estate, shall
233-25 take the oath required of an administrator with the will annexed
233-26 <or of a guardian as the case may be>, and shall give bond in the
233-27 same manner and in the same amount provided in this Code for the
234-1 issuance of original letters of administration <or guardianship>.
234-2 SECTION 35. Sections 220(c), (d), and (g), Texas Probate
234-3 Code, are amended to read as follows:
234-4 (c) When Named Executor <or Guardian> Becomes an Adult. If
234-5 one named in a will as executor <or guardian> is not an adult when
234-6 the will is probated and letters in any capacity have been granted
234-7 to another, such nominated executor <or guardian>, upon proof that
234-8 he has become an adult and is not otherwise disqualified, shall be
234-9 entitled to have such former letters revoked and appropriate
234-10 letters granted to him. And if the will names two or more persons
234-11 as executor, any one or more of whom are minors when such will is
234-12 probated, and letters have been issued to such only as are adults,
234-13 said minor or minors, upon becoming adults, if not otherwise
234-14 disqualified, shall be permitted to qualify and receive letters.
234-15 (d) Upon Return of Sick or Absent Executor <or
234-16 Guardian>. If one named in a will as executor <or guardian> was
234-17 sick or absent from the State when the testator died, or when the
234-18 will was proved, and therefore could not present the will for
234-19 probate within thirty days after the testator's death, or accept
234-20 and qualify as executor <or guardian> within twenty days after the
234-21 probate of the will, he may accept and qualify as executor <or
234-22 guardian> within sixty days after his return or recovery from
234-23 sickness, upon proof to the court that he was absent or ill; and,
234-24 if the letters have been issued to others, they shall be revoked.
234-25 (g) Payment or Tender of Money Due During Vacancy. Money or
234-26 other thing of value falling due to an estate <or ward> while the
234-27 office of the personal representative is vacant may be paid,
235-1 delivered, or tendered to the clerk of the court for credit of the
235-2 estate <or ward>, and the debtor, obligor, or payor shall thereby
235-3 be discharged of the obligation for all purposes to the extent and
235-4 purpose of such payment or tender. If the clerk accepts such
235-5 payment or tender, he shall issue a proper receipt therefor.
235-6 SECTION 36. Section 221(d), Texas Probate Code, is amended
235-7 to read as follows:
235-8 (d) Hearing. At the time set for hearing, unless it has
235-9 been continued by the court, if the court finds that citation has
235-10 been duly issued and served, he shall proceed to examine such
235-11 exhibit and account, and hear all evidence for and against the
235-12 same, and shall, if necessary, restate, and audit and settle the
235-13 same. If the court is satisfied that the matters entrusted to the
235-14 applicant have been handled and accounted for in accordance with
235-15 law, he shall enter an order of approval, and require that the
235-16 estate remaining in the possession of the applicant, if any, be
235-17 delivered to the person or persons entitled by law to receive it.
235-18 <A guardian of the person shall be required to comply with all
235-19 lawful orders of the court concerning his ward.>
235-20 SECTION 37. Sections 222(b) and (c), Texas Probate Code, are
235-21 amended to read as follows:
235-22 (b) With Notice. The court may remove a personal
235-23 representative on its own motion, or on the complaint of any
235-24 interested person, after the personal representative has been cited
235-25 by personal service to answer at a time and place fixed in the
235-26 notice, when:
235-27 (1) Sufficient grounds appear to support belief that
236-1 he has misapplied, embezzled, or removed from the state, or that he
236-2 is about to misapply, embezzle, or remove from the state, all or
236-3 any part of the property committed to his care;
236-4 (2) He fails to return any account which is required
236-5 by law to be made;
236-6 (3) He fails to obey any proper order of the court
236-7 having jurisdiction with respect to the performance of his duties;
236-8 (4) He is proved to have been guilty of gross
236-9 misconduct, or mismanagement in the performance of his duties;
236-10 (5) He becomes an incompetent, or is sentenced to the
236-11 penitentiary, or from any other cause becomes incapable of properly
236-12 performing the duties of his trust;
236-13 (6) As executor or administrator, he fails to make a
236-14 final settlement within three years after the grant of letters,
236-15 unless the time be extended by the court upon a showing of
236-16 sufficient cause supported by oath; or
236-17 (7) As executor or administrator, he fails to timely
236-18 file the notice required by Section 128A of this code<; or>
236-19 <(8) As guardian of the person, he cruelly treats the
236-20 ward, or neglects to educate or maintain the ward as liberally as
236-21 the means of such ward and the condition of his estate permit>.
236-22 (c) Order of Removal. The order of removal shall state the
236-23 cause thereof. It shall require that any letters issued to the one
236-24 removed shall, if he has been personally served with citation, be
236-25 surrendered, and that all such letters be cancelled of record,
236-26 whether delivered or not. It shall further require, as to all the
236-27 estate remaining in the hands of a removed person, delivery thereof
237-1 to the person or persons entitled thereto, or to one who has been
237-2 appointed and has qualified as successor representative<, and as to
237-3 the person of a ward, that control be relinquished as required in
237-4 the order>.
237-5 SECTION 38. Section 226, Texas Probate Code, is amended to
237-6 read as follows:
237-7 Sec. 226. Subsequent Executors <and Guardians> Also Succeed
237-8 to Prior Rights and Duties. Whenever an executor <or guardian>
237-9 shall accept and qualify after letters of administration shall have
237-10 been granted upon the estate, such executor <or guardian> shall, in
237-11 like manner, succeed to the previous administrator, and he shall
237-12 administer the estate in like manner as if his administration were
237-13 a continuation of the former one, subject, however, to any legal
237-14 directions of the testator contained in the will in relation to the
237-15 estate.
237-16 SECTION 39. Section 230, Texas Probate Code, is amended to
237-17 read as follows:
237-18 Sec. 230. Care of Property of Estates. <(a) Estates of
237-19 Decedents.> The executor or administrator shall take care of the
237-20 property of the estate of his testator or intestate as a prudent
237-21 man would take of his own property, and if there be any buildings
237-22 belonging to the estate, he shall keep the same in good repair,
237-23 extraordinary casualties excepted, unless directed not to do so by
237-24 an order of the court.
237-25 <(b) Estates of Wards.>
237-26 <(1) General Powers and Duties. The guardian of the
237-27 estate of a ward is entitled to the possession and management of
238-1 all properties belonging to the ward, to collect all debts,
238-2 rentals, or claims due such ward, to enforce all obligations in his
238-3 favor, and to bring and defend suits by or against him; but, in the
238-4 management of the estate, the guardian shall be governed by the
238-5 provisions of this Code. It is the duty of the guardian of the
238-6 estate to take care of and manage such estate as a prudent man
238-7 would manage his own property. He shall account for all rents,
238-8 profits, and revenues that the estate would have produced by such
238-9 prudent management.>
238-10 <(2) Power to Make Tax-Motivated Gifts. (A) On
238-11 application of the guardian or any interested party, and after
238-12 notice to all interested persons and to such other persons as the
238-13 court may direct, and on a showing that the ward will probably
238-14 remain incompetent during his lifetime, the court may, after
238-15 hearing and by order, authorize the guardian to apply such
238-16 principal or income of the ward's estate as is not required for the
238-17 support of the ward during his lifetime or of his family towards
238-18 the establishment of an estate plan for the purpose of minimizing
238-19 income, estate, inheritance, or other taxes payable out of the
238-20 ward's estate. The court may authorize the guardian to make gifts
238-21 of the ward's personal property or real estate, outright or in
238-22 trust, on behalf of the ward, to or for the benefit of
238-23 (i) organizations to which charitable contributions may be made
238-24 under the Internal Revenue Code and in which it is shown the ward
238-25 would reasonably have an interest, (ii) the ward's heirs at law
238-26 who are identifiable at the time of the order, (iii) devisees
238-27 under the ward's last validly executed will, if there be such a
239-1 will, (iv) and a person serving as guardian of the ward provided
239-2 he is eligible under either category (ii) or (iii) above.>
239-3 <(B) The person making application to the court
239-4 shall outline the proposed estate plan, setting forth all the
239-5 benefits to be derived therefrom. The application shall also
239-6 indicate that the planned disposition is consistent with the
239-7 intentions of the ward insofar as they can be ascertained. If the
239-8 ward's intentions cannot be ascertained, the ward will be presumed
239-9 to favor reduction in the incidence of the various forms of
239-10 taxation and the partial distribution of his estate as herein
239-11 provided.>
239-12 <(C) The court may appoint a guardian ad litem
239-13 for the ward or any interested party at any stage of the
239-14 proceedings, if deemed advisable for the protection of the ward or
239-15 the interested party.>
239-16 <(D) Subsequent modifications of an approved
239-17 plan may be made by similar application to the court.>
239-18 SECTION 40. Section 233A, Texas Probate Code, is amended to
239-19 read as follows:
239-20 Sec. 233A. Suits by Executors OR<,> Administrators<, or
239-21 Guardians>. Suits for the recovery of personal property, debts, or
239-22 damages and suits for title or possession of lands or for any right
239-23 attached to or growing out of the same or for injury or damage done
239-24 thereto may be instituted by executors or<,> administrators<, or
239-25 guardians> appointed in this state; and judgment in such cases
239-26 shall be conclusive, but may be set aside by any person interested
239-27 for fraud or collusion on the part of such executor or
240-1 administrator.
240-2 SECTION 41. Section 238, Texas Probate Code, is amended to
240-3 read as follows:
240-4 Sec. 238. Operation of Farm, Ranch, Factory, or Other
240-5 Business. If the estate owns a farm, ranch, factory, or other
240-6 business, the disposition of which has not been specifically
240-7 directed by will, and if the same be not required to be sold at
240-8 once for the payment of debts or other lawful purposes, the
240-9 representative, upon order of the court, shall carry on the
240-10 operation of such farm, ranch, factory, or other business, or cause
240-11 the same to be done, or rent the same, as shall appear to be for
240-12 the best interest of the estate. In deciding, the court shall
240-13 consider the condition of the estate, and the necessity that may
240-14 exist for future sale of such property or business for the payment
240-15 of debts, claims, or other lawful expenditures, and shall not
240-16 extend the time of renting any of the property beyond what appears
240-17 consistent with the speedy settlement of the estate of a deceased
240-18 person<, or the maintenance and education of a ward> or the
240-19 settlement of his estate.
240-20 SECTION 42. Section 241, Texas Probate Code, is amended to
240-21 read as follows:
240-22 Sec. 241. Compensation of Personal Representatives.
240-23 (a) <Compensation of Executors and Administrators.> Executors,
240-24 administrators, and temporary administrators shall be entitled to
240-25 receive a commission of five per cent (5%) on all sums they may
240-26 actually receive in cash, and the same per cent on all sums they
240-27 may actually pay out in cash, in the administration of the estate
241-1 on a finding by the court that the executor or administrator has
241-2 taken care of and managed the estate in compliance with the
241-3 standards of this code; provided, no commission shall be allowed
241-4 for receiving funds belonging to the testator or intestate which
241-5 were on hand or were held for the testator or intestate at the time
241-6 of his death in a financial institution or a brokerage firm,
241-7 including cash or a cash equivalent held in a checking account,
241-8 savings account, certificate of deposit, or money market account;
241-9 nor for collecting the proceeds of any life insurance policy; nor
241-10 for paying out cash to the heirs or legatees as such; provided,
241-11 further, however, that in no event shall the executor or
241-12 administrator be entitled in the aggregate to more than five per
241-13 cent (5%) of the gross fair market value of the estate subject to
241-14 administration. If the executor or administrator manages a farm,
241-15 ranch, factory, or other business of the estate, or if the
241-16 compensation as calculated above is unreasonably low, the court may
241-17 allow him reasonable compensation for his services, including
241-18 unusual effort to collect funds or life insurance. For this
241-19 purpose, the county court shall have jurisdiction to receive,
241-20 consider, and act on applications from independent executors. The
241-21 court may, on application of an interested person or on its own
241-22 motion, deny a commission allowed by this subsection in whole or in
241-23 part if:
241-24 (1) the court finds that the executor or administrator
241-25 has not taken care of and managed estate property prudently; or
241-26 (2) the executor or administrator has been removed
241-27 under Section 149C or 222 of this code.
242-1 (b) <Compensation of Guardians. A guardian of the person
242-2 alone is entitled to no compensation. The guardian or the
242-3 temporary guardian of the estate, or of the person and estate,
242-4 shall not be entitled to, or receive, any fee or commission on the
242-5 estate of the ward when it is first delivered to him; but shall be
242-6 entitled to a fee of five per cent (5%) on the gross income of the
242-7 ward's estate and five per cent (5%) on all money paid out on a
242-8 finding by the court that the guardian has taken care of and
242-9 managed the estate in compliance with the standards of this code.
242-10 The term "money paid out" shall not be construed to include any
242-11 money loaned or invested or paid over on the settlement of the
242-12 guardianship. If the guardian manages a farm, ranch, factory, or
242-13 other business of his ward, or if the compensation as calculated
242-14 above is unreasonably low, the court may allow him reasonable
242-15 compensation for his services. The court may, on application of an
242-16 interested person or on its own motion, deny a fee allowed by this
242-17 subsection in whole or in part if:>
242-18 <(1) the court finds that the guardian has not taken
242-19 care of and managed estate property prudently; or>
242-20 <(2) the guardian has been removed under Section 222
242-21 of this code.>
242-22 <(c)> Definition. In this section, "financial institution"
242-23 means an organization authorized to do business under state or
242-24 federal laws relating to financial institutions, including banks
242-25 and trust companies, savings banks, building and loan associations,
242-26 savings and loan companies or associations, and credit unions.
242-27 SECTION 43. The heading of Chapter VIII, Texas Probate Code,
243-1 is amended to read as follows:
243-2 CHAPTER VIII. PROCEEDINGS DURING ADMINISTRATION
243-3 <AND GUARDIANSHIP>
243-4 SECTION 44. Section 248, Texas Probate Code, is amended to
243-5 read as follows:
243-6 Sec. 248. Appointment of Appraisers. At any time after the
243-7 grant of letters testamentary or of administration <or of
243-8 guardianship>, upon the application of any interested person or if
243-9 the court shall deem necessary, the court shall appoint not less
243-10 than one nor more than three disinterested persons, citizens of the
243-11 county in which letters were granted, to appraise the property of
243-12 the estate. In such event and when part of the estate is situated
243-13 in a county other than the county in which letters were granted, if
243-14 the court shall deem necessary it may appoint not less than one nor
243-15 more than three disinterested persons, citizens of the county where
243-16 such part of the estate is situated, to appraise the property of
243-17 the estate situated therein.
243-18 SECTION 45. Section 250, Texas Probate Code, is amended to
243-19 read as follows:
243-20 Sec. 250. Inventory and Appraisement. Within ninety days
243-21 after his qualification, unless a longer time shall be granted by
243-22 the court, the representative shall file with the clerk of court a
243-23 verified, full and detailed inventory, in one written instrument,
243-24 of all the property of such estate which has come to his possession
243-25 or knowledge, which inventory shall include:
243-26 (a) all real property of the estate situated in the
243-27 State of Texas;
244-1 (b) all personal property of the estate wherever
244-2 situated. The representative shall set out in the inventory his
244-3 appraisement of the fair market value of each item thereof as of
244-4 the date of death in the case of grant of letters testamentary or
244-5 of administration <or as of the date of grant of letters of
244-6 guardianship>, as the case may be; provided that if the court shall
244-7 appoint an appraiser or appraisers of the estate, the
244-8 representative shall determine the fair market value of each item
244-9 of the inventory with the assistance of such appraiser or
244-10 appraisers and shall set out in the inventory such appraisement.
244-11 The inventory shall specify what portion of the property, if any,
244-12 is separate property and what portion, if any, is community
244-13 property. If any property is owned in common with others, the
244-14 interest owned by the estate shall be shown, together with the
244-15 names and relationship, if known, of co-owners. Such inventory,
244-16 when approved by the court and duly filed with the clerk of court,
244-17 shall constitute for all purposes the inventory and appraisement of
244-18 the estate referred to in this Code. The court for good cause
244-19 shown may require the filing of the inventory and appraisement at a
244-20 time prior to ninety days after the qualification of the
244-21 representative.
244-22 SECTION 46. Sections 295(a) and (b), Texas Probate Code, are
244-23 amended to read as follows:
244-24 (a) When notice required for lien claimants. Within four
244-25 months after receiving letters, the representative of an estate
244-26 shall give notice of the issuance of such letters to each and every
244-27 person having a claim for money against the estate of a decedent<,
245-1 or ward, as the case may be>, provided:
245-2 (1) That such claim is secured by a deed of trust,
245-3 mortgage, vendor's, mechanic's or other contractor's lien upon real
245-4 estate belonging to such estate; and
245-5 (2) That the instrument creating, extending, or
245-6 transferring such lien was duly recorded prior to the death of a
245-7 testator or intestate in the county in which the real estate
245-8 covered by such lien is situated, or prior to the time at which
245-9 title vested in an heir or devisee.
245-10 (b) When notice required for general claimants. Within four
245-11 months after receiving letters, the representative of an estate
245-12 shall give notice of the issuance of the letters to each person
245-13 having an outstanding claim for money against the estate of a
245-14 decedent<, or ward, as applicable,> if the representative has
245-15 actual knowledge of the claim.
245-16 SECTION 47. Section 298, Texas Probate Code, is amended to
245-17 read as follows:
245-18 Sec. 298. Claims Against Estates of Decedents <and Wards>.
245-19 (a) Claims Against Decedent's Estate Postponed if not Presented in
245-20 Six Months. All claims for money against a testator or intestate
245-21 shall be presented to the executor or administrator within six
245-22 months after the original grant of letters testamentary or of
245-23 administration; otherwise the payment thereof shall be postponed
245-24 until the claims which have been presented within six months and
245-25 allowed by the executor or administrator and approved by the court
245-26 have been first entirely paid; provided, however, that the failure
245-27 of the holder of a secured claim to present his claim within said
246-1 six month period shall not cause his claim to be postponed, but it
246-2 shall be treated as a claim to be paid in accordance with
246-3 subsequent provisions of this Code.
246-4 (b) <Time for Presentation of Claims to Guardians. Claims
246-5 may be presented to the guardian at any time when the estate is not
246-6 closed and when suit on such claims has not been barred by the
246-7 general statutes of limitation.>
246-8 <(c)> Claims Barred by Limitation Not to Be Allowed or
246-9 Approved. No claims against a decedent <or ward>, or against the
246-10 estate of the decedent <either>, on which a suit is barred by a
246-11 general statute of limitation applicable thereto shall be allowed
246-12 by a personal representative. If allowed by the representative and
246-13 the court is satisfied that limitation has run, the claim shall be
246-14 disapproved.
246-15 SECTION 48. Section 301, Texas Probate Code, is amended to
246-16 read as follows:
246-17 Sec. 301. Claims Must Be Authenticated. No <Except as
246-18 hereinafter provided with respect to the payment of unauthenticated
246-19 claims by guardians, no> personal representative of a decedent's
246-20 estate <or of the estate of a ward> shall allow, and the court
246-21 shall not approve, a claim for money against such estate, unless
246-22 such claim be supported by an affidavit that the claim is just and
246-23 that all legal offsets, payments, and credits known to the affiant
246-24 have been allowed. If the claim is not founded on a written
246-25 instrument or account, the affidavit shall also state the facts
246-26 upon which the claim is founded. A photostatic copy of any exhibit
246-27 or voucher necessary to prove a claim may be offered with and
247-1 attached to the claim in lieu of the original.
247-2 SECTION 49. Section 304, Texas Probate Code, is amended to
247-3 read as follows:
247-4 Sec. 304. Authentication of Claim by Others Than Individual
247-5 Owners. The cashier, treasurer, or managing official of a
247-6 corporation shall make the affidavit required to authenticate a
247-7 claim of such corporation. When an affidavit is made by an officer
247-8 of a corporation, or by an executor, administrator, <guardian,>
247-9 trustee, assignee, agent, or attorney, it shall be sufficient to
247-10 state in such affidavit that the person making it has made diligent
247-11 inquiry and examination, and that he believes that the claim is
247-12 just and that all legal offsets, payments, and credits made known
247-13 to the affiant have been allowed.
247-14 SECTION 50. Section 306(d), Texas Probate Code, is amended
247-15 to read as follows:
247-16 (d) Payment of Maturities on Secured Claims. If property
247-17 securing a claim allowed, approved, and fixed under Paragraph (2)
247-18 of Subsection (a) hereof is not sold or distributed within twelve
247-19 months from the date letters testamentary or of administration <or
247-20 guardianship> are granted, the representative of the estate shall
247-21 promptly pay all maturities which have accrued on the debt
247-22 according to the terms thereof, and shall perform all the terms of
247-23 any contract securing same. If the representative defaults in such
247-24 payment or performance, on motion of the claimholder, the court
247-25 shall require the sale of said property subject to the unmatured
247-26 part of such debt and apply the proceeds of the sale to the
247-27 liquidation of the maturities, or, at the option of the
248-1 claimholder, a motion may be made in a like manner to require the
248-2 sale of said property free of such lien and to apply the proceeds
248-3 to the payment of the whole debt.
248-4 SECTION 51. Section 311, Texas Probate Code, is amended to
248-5 read as follows:
248-6 Sec. 311. When Claims Entered in Docket. <(a) Claims
248-7 Against Estates of Decedents.> If a claim against the estate of a
248-8 decedent has been presented within six months after the issuance of
248-9 original testamentary letters or of administration, and all or part
248-10 of such claim is allowed by the executor or administrator, the
248-11 claim shall forthwith be filed with the county clerk of the proper
248-12 county, who shall enter the same in its proper place upon the claim
248-13 docket. If such claim is not so presented within such time, the
248-14 payment thereof, should it be approved in whole or in part, shall
248-15 be postponed until all other claims which have been presented,
248-16 allowed, and approved within the time prescribed have been first
248-17 entirely paid.
248-18 <(b) Claims Against Estates of Wards. After a claim against
248-19 a ward's estate has been presented to and allowed by the guardian,
248-20 either in whole or in part, the claim shall forthwith be filed with
248-21 the county clerk of the proper county, who shall enter it on the
248-22 claim docket.>
248-23 SECTION 52. Sections 312(a) and (e), Texas Probate Code, are
248-24 amended to read as follows:
248-25 (a) Contest of Claims. Any person interested in an estate
248-26 <or ward> may, at any time before the court has acted upon a claim,
248-27 appear and object in writing to the approval of the same, or any
249-1 part thereof, and in such case the parties shall be entitled to
249-2 process for witnesses, and the court shall hear proof and render
249-3 judgment as in ordinary suits.
249-4 (e) Appeal. When a claimant or any person interested in an
249-5 estate <or ward> shall be dissatisfied with the action of the court
249-6 upon a claim, he may appeal therefrom to the courts of <(civil)>
249-7 appeals, as from other judgments of the county court in probate
249-8 matters.
249-9 SECTION 53. Section 314, Texas Probate Code, is amended to
249-10 read as follows:
249-11 Sec. 314. Presentment of Claims a Prerequisite for Judgment.
249-12 No judgment shall be rendered in favor of a claimant upon any claim
249-13 for money which has not been legally presented to the
249-14 representative of an estate <or ward>, and rejected by him or by
249-15 the court, in whole or in part.
249-16 SECTION 54. Section 317, Texas Probate Code, is amended to
249-17 read as follows:
249-18 Sec. 317. Claims by Personal Representatives. (a) By
249-19 Executors or Administrators. The foregoing provisions of this Code
249-20 relative to the presentation of claims against an estate shall not
249-21 be construed to apply to any claim of the executor or administrator
249-22 against his testator or intestate; but an executor or administrator
249-23 holding such claim shall file the same in the court granting his
249-24 letters, verified by affidavit as required in other cases, within
249-25 six months after he has qualified, or such claim shall be barred.
249-26 (b) <By Guardians. A claim which the guardian held against
249-27 the ward or his estate at the time of his appointment, or which has
250-1 since accrued, shall be verified by affidavit as required in other
250-2 cases, and presented to the clerk of the court in which the
250-3 guardianship is pending, who shall enter it upon the claim docket,
250-4 after which it shall take the same course as other claims.>
250-5 <(c)> Action on Such Claims. When a claim by an executor
250-6 or<,> administrator<, or guardian> has been filed with the court
250-7 within the required time, such claim shall be entered upon the
250-8 claim docket and acted upon by the court in the same manner as in
250-9 other cases, and, when the claim has been acted upon by the court,
250-10 an appeal from the judgment of the court may be taken as in other
250-11 cases.
250-12 (c) <(d)> Provisions Not Applicable to Certain Claims. The
250-13 foregoing provisions relative to the presentment of claims shall
250-14 not be so construed as to apply to the claim of any heir, devisee,
250-15 or legatee who claims in such capacity, or to any claim that
250-16 accrues against the estate after the granting of letters for which
250-17 the representative of the estate has contracted.
250-18 SECTION 55. Section 319, Texas Probate Code, is amended to
250-19 read as follows:
250-20 Sec. 319. Claims Not to Be Paid Unless Approved. No <Except
250-21 as provided for payment at his own risk by a guardian of an
250-22 unauthenticated claim, no> claim for money against the estate of a
250-23 decedent <or ward>, or any part thereof, shall be paid until it has
250-24 been approved by the court or established by the judgment of a
250-25 court of competent jurisdiction.
250-26 SECTION 56. Section 320, Texas Probate Code, is amended to
250-27 read as follows:
251-1 Sec. 320. Order of Payment of Claims. (a) <Estates of
251-2 Decedents.> Executors and administrators, when they have funds in
251-3 their hands belonging to the estate, shall pay in the following
251-4 order:
251-5 (1) Funeral expenses and expenses of last sickness, in
251-6 an amount not to exceed Five Thousand Dollars, if the claims
251-7 therefor have been presented within sixty days from the original
251-8 grant of letters testamentary or administration, but if not
251-9 presented within such time, their payment shall be postponed until
251-10 the allowances made to the widow and children, or to either, are
251-11 paid.
251-12 (2) Allowances made to the widow and children, or to
251-13 either.
251-14 (3) Expenses of administration and the expenses
251-15 incurred in the preservation, safekeeping, and management of the
251-16 estate.
251-17 (4) Other claims against the estate in the order of
251-18 their classification.
251-19 (b) <Estates of Wards. The guardian shall pay all claims
251-20 against the estate of his ward that have been allowed and approved,
251-21 or established by suit, as soon as practicable, in the following
251-22 order:>
251-23 <(1) expenses for the care, maintenance and education
251-24 of the ward or his dependents;>
251-25 <(2) funeral expenses and expenses of last sickness,
251-26 if the guardianship is kept open after the death of the ward as
251-27 provided by Section 404A of this Code, except that any claim
252-1 against the estate of a ward that has been allowed and approved or
252-2 established by suit prior to the death of the ward shall be paid
252-3 prior to the funeral expenses and expenses of last sickness;>
252-4 <(3) expenses of administration; and>
252-5 <(4) other claims against the estate.>
252-6 <(c)> A claimant whose claim has not been paid may petition
252-7 the court for determination of his claim at any time before it is
252-8 barred by the applicable statute of limitations and upon due proof
252-9 procure an order for its allowance and payment from the estate.
252-10 SECTION 57. Section 321, Texas Probate Code, is amended to
252-11 read as follows:
252-12 Sec. 321. Deficiency of Assets. When there is a deficiency
252-13 of assets to pay all claims of the same class, the claims in such
252-14 class shall be paid pro rata, as directed by the court, and in the
252-15 order directed. No executor or<,> administrator<, or guardian>
252-16 shall be allowed to pay any claims, whether the estate is solvent
252-17 or insolvent, except with the pro rata amount of the funds of the
252-18 estate that have come to hand.
252-19 SECTION 58. Section 324, Texas Probate Code, is amended to
252-20 read as follows:
252-21 Sec. 324. Representatives Not to Purchase Claims. It shall
252-22 be unlawful, and cause for removal, for an executor or<,>
252-23 administrator, <or guardian,> whether acting under appointment by
252-24 will or under orders of the court, to purchase for his own use or
252-25 for any purposes whatsoever, any claim against the estate he
252-26 represents. Upon written complaint by any person interested in the
252-27 estate, and satisfactory proof of violation of this provision,
253-1 after citation and hearing, the court shall enter its order
253-2 cancelling the claim, and no part thereof shall be paid out of the
253-3 estate; and the judge may, in his discretion, remove such
253-4 representative.
253-5 SECTION 59. Sections 329(a) and (c), Texas Probate Code, are
253-6 amended to read as follows:
253-7 (a) Circumstances Under Which Money May Be Borrowed. Any
253-8 real or personal property of an estate may be mortgaged or pledged
253-9 by deed of trust or otherwise as security for an indebtedness,
253-10 under order of the court, when necessary for any of the following
253-11 purposes:
253-12 (1) For the payment of any ad valorem, income, gift,
253-13 estate, inheritance, or transfer taxes upon the transfer of an
253-14 estate or due from a decedent <or ward> or his estate, regardless
253-15 of whether such taxes are assessed by a state, or any of its
253-16 political subdivisions, or by the federal government or by a
253-17 foreign country; or
253-18 (2) For payment of expenses of administration,
253-19 including sums necessary for operation of a business, farm, or
253-20 ranch owned by the estate; or
253-21 (3) For payment of claims allowed and approved, or
253-22 established by suit, against the estate; or
253-23 (4) To renew and extend a valid, existing lien<; or>
253-24 <(5) In the case of guardians of estates, if the real
253-25 estate of the ward is not revenue producing but could be made
253-26 revenue producing by certain improvements and repairs, or if the
253-27 revenue therefrom could be increased by making such improvements or
254-1 repairs thereon, to make such improvements or repairs; or>
254-2 <(6) In the case of guardians of estates, the probate
254-3 court in its discretion may authorize the borrowing of money if the
254-4 court finds it to be in the best interest of the ward or may
254-5 authorize the borrowing of money for the purchase of a residence
254-6 for the ward and any dependents of the ward>.
254-7 (c) Order Authorizing Such Borrowing, or Extension of
254-8 Lien. The court, if satisfied by the evidence adduced at the
254-9 hearing upon said application that it is to the interest of the
254-10 estate to borrow money, or to extend and renew an existing lien,
254-11 shall issue its order to that effect, setting out the terms and
254-12 conditions of the authority granted; provided, however<: (1) that
254-13 as to the estate of a decedent>, the loan or renewal shall not be
254-14 for a term longer than three years from the granting of original
254-15 letters to the representative of such estate, but the court may
254-16 authorize an extension of such lien for not more than one
254-17 additional year without further citation or notice<; and (2) that
254-18 as to the estate of a ward, the term of the loan or renewal shall
254-19 be for such length of time as the court shall determine to be for
254-20 the best interest of such estate. If a new lien is created upon
254-21 property of an estate, the court may require that the
254-22 representative's general bond be increased, or an additional bond
254-23 given, for the protection of the estate and its creditors, as for
254-24 the sale of real property belonging to the estate>.
254-25 SECTION 60. Section 339, Texas Probate Code, is amended to
254-26 read as follows:
254-27 Sec. 339. Sales of Personal Property to Be Reported; Decree
255-1 Vests Title. All sales of personal property shall be reported to
255-2 the court, and the laws regulating sales of real estate as to
255-3 confirmation or disapproval of sales shall apply, but no conveyance
255-4 shall be necessary. The decree confirming the sale of personal
255-5 property shall vest the right and title of the estate of the
255-6 intestate <or ward> in the purchaser who has complied with the
255-7 terms of the sale, and shall be prima facie evidence that all
255-8 requirements of the law in making the sale have been met. The
255-9 representative of an estate may, upon request, issue a bill of sale
255-10 without warranty to the purchaser as evidence of title, the expense
255-11 thereof to be borne by the purchaser.
255-12 SECTION 61. Section 341, Texas Probate Code, is amended to
255-13 read as follows:
255-14 Sec. 341. Application for Sale of Real Estate.
255-15 <(a)> Application may be made to the court for an order to sell
255-16 property of the estate when it appears necessary or advisable in
255-17 order to:
255-18 (1) Pay expenses of administration, funeral expenses
255-19 and expenses of last sickness of decedents, and allowances and
255-20 claims against the estates of decedents <and wards>.
255-21 (2) <Make up the deficiency when the income of a
255-22 ward's estate, and the personal property thereof, and the proceeds
255-23 of previous sales, are insufficient for the education and
255-24 maintenance of the ward, or to pay debts against the estate.>
255-25 <(3) Dispose of property of the estate of a ward which
255-26 consists in whole or in part of an undivided interest in real
255-27 estate, when it is deemed to the best interest of the estate to
256-1 sell such interest.>
256-2 <(4) Dispose of real estate of a ward, any part of
256-3 which is nonproductive or does not produce sufficient revenue to
256-4 make a fair return upon the value of such real estate, when the
256-5 improvement of same with a view to making it productive is not
256-6 deemed advantageous or advisable, and it appears that the sale of
256-7 such real estate and the investment of the money derived therefrom
256-8 would be to the best interest of the estate.>
256-9 <(5) Conserve the estate of a ward by selling mineral
256-10 interest and/or royalties on minerals in place owned by a ward.>
256-11 <(6)> Dispose of any interest in real property of the
256-12 estate of a decedent, when it is deemed to the best interest of the
256-13 estate to sell such interest.
256-14 SECTION 62. Section 351, Texas Probate Code, is amended to
256-15 read as follows:
256-16 Sec. 351. Sales of Easements and Right of Ways. It shall be
256-17 lawful to sell and convey easements and rights of ways on, under,
256-18 and over the lands of an estate being administered under orders of
256-19 a court, regardless of whether the proceeds of such a sale are
256-20 required for payment of charges or claims against the estate, or
256-21 for other lawful purposes. The procedure for such sales shall be
256-22 the same as now or hereafter provided by law for sales of real
256-23 property of estates of decedents <or wards> at private sale.
256-24 SECTION 63. Sections 352(c) and (d), Texas Probate Code, are
256-25 amended to read as follows:
256-26 (c) A personal representative of a decedent <or of a ward
256-27 who has been adjudged incompetent> may purchase property from the
257-1 estate of the decedent <or ward> in compliance with the terms of a
257-2 written executory contract signed by the decedent <or by the ward
257-3 before the ward became incompetent>, including a contract for deed,
257-4 earnest money contract, buy/sell agreement, or stock purchase or
257-5 redemption agreement.
257-6 (d) After issuing the notice required by this subsection, a
257-7 personal representative of an estate, including an independent
257-8 administrator, may purchase property from the estate on the court's
257-9 determination that the sale is in the best interest of the estate.
257-10 The personal representative shall give notice by certified mail,
257-11 return receipt requested, unless the court requires another form of
257-12 notice, to each distributee of a deceased person's estate and to
257-13 each creditor whose claim remains unsettled after presenting a
257-14 claim within six months of the original grant of letters. <In the
257-15 case of an application filed by the guardian of the estate of a
257-16 ward, the court shall appoint an attorney ad litem to represent the
257-17 ward with respect to the sale.> The court may require additional
257-18 notice or it may allow for the waiver of the notice required for a
257-19 sale made under this subsection.
257-20 SECTION 64. Section 367(b), Texas Probate Code, is amended
257-21 to read as follows:
257-22 (b) Mineral Leases, With or Without Pooling or
257-23 Unitization. Personal representatives of the estates of
257-24 decedents<, minors, and incompetents>, appointed and qualified
257-25 under the laws of this State, and acting solely under orders of
257-26 court, may be authorized by the court in which the probate
257-27 proceedings on such estates are pending to make, execute, and
258-1 deliver leases, with or without unitization clauses or pooling
258-2 provisions, providing for the exploration for, and development and
258-3 production of, oil, other liquid hydrocarbons, gas (including all
258-4 liquid hydrocarbons in the gaseous phase), metals, and other solid
258-5 minerals, and other minerals, or any of such minerals in place,
258-6 belonging to such estates.
258-7 SECTION 65. Section 372, Texas Probate Code, is amended to
258-8 read as follows:
258-9 Sec. 372. Validation of Certain Leases and Pooling or
258-10 Unitization Agreements Based on Previous Statutes. All presently
258-11 existing leases on the oil, gas, or other minerals, or one or more
258-12 of them, belonging to the estates of decedents<, minors, persons of
258-13 unsound mind, or habitual drunkards>, and all agreements with
258-14 respect to pooling, or unitization thereof, or one or more of them,
258-15 or any interest therein, with like properties of others<, including
258-16 agreements contemplated or authorized to be made under the terms of
258-17 Section 3, Article 6008-b, Vernon's Texas Revised Civil Statutes of
258-18 1925, as amended,> having been authorized by the court having
258-19 venue, and executed and delivered by the executors, administrators,
258-20 <guardians,> or other fiduciaries of their estates in substantial
258-21 conformity to the rules set forth in statutes heretofore existing,
258-22 providing for only seven days notice in some instances, and also
258-23 for a brief order designating a time and place for hearing, are
258-24 hereby validated in so far as said period of notice is concerned,
258-25 and in so far as the absence of any order setting a time and place
258-26 for hearing is concerned; provided, this shall not apply to any
258-27 lease or pooling or unitization agreement involved in any suit
259-1 pending on the effective date of this Code wherein either the
259-2 length of time of said notice or the absence of such order is in
259-3 issue.
259-4 SECTION 66. Section 399, Texas Probate Code, is amended to
259-5 read as follows:
259-6 Sec. 399. Annual Accounts Required. (a) Estates of
259-7 Decedents <and Wards> Being Administered Under Order of Court. The
259-8 personal representative of the estate of a decedent <or ward> being
259-9 administered under order of court shall, upon the expiration of
259-10 twelve (12) months from the date of qualification and receipt of
259-11 letters, return to the court an exhibit in writing under oath
259-12 setting forth a list of all claims against the estate that were
259-13 presented to him within the period covered by the account,
259-14 specifying which have been allowed by him, which have been paid,
259-15 which have been rejected and the date when rejected, which have
259-16 been sued upon, and the condition of the suit, and show:
259-17 (1) All property that has come to his knowledge or
259-18 into his possession not previously listed or inventoried as
259-19 property of the estate <or ward, as the case may be>.
259-20 (2) Any changes in the property of the estate <or
259-21 ward> which have not been previously reported.
259-22 (3) A complete account of receipts and disbursements
259-23 for the period covered by the account, and the source and nature
259-24 thereof, with receipts of principal and income to be shown
259-25 separately.
259-26 (4) A complete, accurate and detailed description of
259-27 the property being administered, the condition of the property and
260-1 the use being made thereof, and, if rented, the terms upon and the
260-2 price for which rented.
260-3 (5) The cash balance on hand and the name and location
260-4 of the depository wherein such balance is kept; also, any other
260-5 sums of cash in savings accounts or other form, deposited subject
260-6 to court order, and the name and location of the depository
260-7 thereof.
260-8 (6) A detailed description of personal property of the
260-9 estate, which shall, with respect to bonds, notes, and other
260-10 securities, include the names of obligor and obligee, or if payable
260-11 to bearer, so state; the date of issue and maturity; the rate of
260-12 interest; serial or other identifying numbers; in what manner the
260-13 property is secured; and other data necessary to identify the same
260-14 fully, and how and where held for safekeeping.
260-15 (b) Annual Reports Continue Until Estate Closed. Each
260-16 personal representative of the estate of a decedent <or ward> shall
260-17 continue to file annual accounts conforming to the essential
260-18 requirements of those in Subsection (a) hereof as to changes in the
260-19 assets of the estate after rendition of the former account so that
260-20 the true condition of the estate, with respect to money,
260-21 securities, and other property, can be ascertained by the court or
260-22 by any interested person, by adding to the balances forward the
260-23 receipts, and then subtracting the disbursements. The description
260-24 of property sufficiently described in an inventory or previous
260-25 account may be by reference thereto.
260-26 (c) <Guardians of the Person. The guardian of the person,
260-27 when there is a separate guardian of the estate, shall at the
261-1 expiration of twelve (12) months from the date of his qualification
261-2 and receipt of letters, and annually thereafter, return to the
261-3 court his sworn account showing each item of receipts and
261-4 disbursements for the support and maintenance of the ward, his
261-5 education when necessary, and support and maintenance of the ward's
261-6 dependents, when authorized by order of court. All who are
261-7 guardians of the person shall include in their reports facts
261-8 concerning each ward's physical welfare, his well-being, and his
261-9 progress in education, if the latter be pertinent. Unless the
261-10 judge is satisfied that the facts stated are true, he shall issue
261-11 such orders as are necessary for the best interest of the ward.>
261-12 <(d)> Supporting Vouchers, etc., Attached to
261-13 Accounts. Annexed to all annual accounts of representatives of
261-14 estates <and wards, and, so far as applicable, accounts of
261-15 guardians of the persons of wards and guardians of those wards
261-16 entitled to receive governmental funds, required by this Section,>
261-17 shall be:
261-18 (1) Proper vouchers for each item of credit claimed in
261-19 the account, or, in the absence of such voucher, the item must be
261-20 supported by evidence satisfactory to the court. Original vouchers
261-21 may, upon application, be returned to the representative after
261-22 approval of his account.
261-23 (2) An official letter from the bank or other
261-24 depository in which the money on hand of the estate <or ward> is
261-25 deposited, showing the amounts in general or special deposits.
261-26 (3) Proof of the existence and possession of
261-27 securities owned by the estate, or shown by the accounting, as well
262-1 as other assets held by a depository subject to orders of the
262-2 court, the proof to be by one of the following means:
262-3 a. By an official letter from the bank or other
262-4 depository wherein said securities or other assets are held for
262-5 safekeeping; provided, that if such depository is the
262-6 representative, the official letter shall be signed by a
262-7 representative of such depository other than the one verifying the
262-8 account; or
262-9 b. By a certificate of an authorized
262-10 representative of the corporation which is surety on the
262-11 representative's bonds; or
262-12 c. By a certificate of the clerk or a deputy
262-13 clerk of a court of record in this State; or
262-14 d. By an affidavit of any other reputable person
262-15 designated by the court upon request of the representative or other
262-16 interested party.
262-17 Such certificate or affidavit shall be to the effect that the
262-18 affiant has examined the assets exhibited to him by the
262-19 representative as assets of the estate in which the accounting is
262-20 made, and shall describe the assets by reference to the account or
262-21 otherwise sufficiently to identify those so exhibited, and shall
262-22 state the time when and the place where exhibited. In lieu of
262-23 using a certificate or an affidavit, the representative may exhibit
262-24 the securities to the judge of the court who shall endorse on the
262-25 account, or include in his order with respect thereto, a statement
262-26 that the securities shown therein as on hand were in fact exhibited
262-27 to him, and that those so exhibited were the same as those shown in
263-1 the account, or note any variance. If the securities are exhibited
263-2 at any place other than where deposited for safekeeping, it shall
263-3 be at the expense and risk of the representative. The court may
263-4 require additional evidence as to the existence and custody of such
263-5 securities and other personal property as in his discretion he
263-6 shall deem proper; and may require the representative to exhibit
263-7 them to the court, or any person designated by him, at any time at
263-8 the place where held for safekeeping.
263-9 (d) <(e)> Verification of Account. The representative
263-10 filing the account shall attach thereto his affidavit that it
263-11 contains a correct and complete statement of the matters to which
263-12 it relates.
263-13 <(f) Annual Accounts May be Waived, When. In cases in which
263-14 the income of a ward's estate from real property becomes
263-15 negligible, and the estate owns no personal property, the estate
263-16 may be closed, as hereinafter provided. If the estate owns
263-17 personal property which produces negligible or fixed income, the
263-18 court shall have the power to waive the filing of annual accounts,
263-19 and the court may permit the guardian to receive all income and
263-20 apply it to the support, maintenance, and education of the ward,
263-21 and account to the court for income and corpus of the estate when
263-22 the same must be closed.>
263-23 SECTION 67. Section 400, Texas Probate Code, is amended to
263-24 read as follows:
263-25 Sec. 400. Penalty for Failure to File Annual Account.
263-26 Should any personal representative of an estate<, or guardian of
263-27 the person of a ward,> fail to return any annual account required
264-1 by preceding sections of this Code, any person interested in said
264-2 estate <or ward> may, upon written complaint, or the court upon its
264-3 own motion may, cause the personal representative to be cited to
264-4 return such account, and show cause for such failure. If he fails
264-5 to return said account after being so cited, or fails to show good
264-6 cause for his failure so to do, the court, upon hearing, may revoke
264-7 the letters of such representative, and may fine him in a sum not
264-8 to exceed Five Hundred Dollars ($500). He and his sureties shall
264-9 be liable for any fine imposed, and for all damages and costs
264-10 sustained by reason of such failure, which may be recovered in any
264-11 court of competent jurisdiction.
264-12 SECTION 68. Section 404, Texas Probate Code, is amended to
264-13 read as follows:
264-14 Sec. 404. Closing Administration of Estates of Decedents
264-15 <and Guardianship of Wards or Their Estates>.
264-16 <(a)> Administration of the estates of decedents <and guardianship
264-17 of the persons and estates of wards> shall be settled and closed<:>
264-18 <(1)> when all the debts known to exist against the
264-19 estate of a deceased person have been paid, or when they have been
264-20 paid so far as the assets in the hands of an administrator or
264-21 executor of such estate will permit, and when there is no further
264-22 need for administration<;>
264-23 <(2) when a minor ward dies, or becomes an adult by
264-24 becoming eighteen years of age, or by removal of disabilities of
264-25 minority according to the law of this state, or by marriage;>
264-26 <(3) when an incompetent ward dies, or is decreed as
264-27 provided by law to have been restored to sound mind or sober
265-1 habits, or, being married, when his or her spouse has qualified as
265-2 survivor in community;>
265-3 <(4) when a ward entitled to funds from a governmental
265-4 source dies, or when the court finds that the necessity for the
265-5 guardianship of that person has ended;>
265-6 <(5) when the estate of a ward becomes exhausted; or>
265-7 <(6) when the foreseeable income accruing to a ward or
265-8 to his estate is so negligible that maintaining the guardianship in
265-9 force would be burdensome.>
265-10 <(b) In a case arising under Subsection (a)(6) of this
265-11 section, the court may authorize the income to be paid to a parent,
265-12 or some other person who has acted as guardian, to assist as far as
265-13 possible in the maintenance of the ward, and without liability to
265-14 account to the court for the income.>
265-15 <(c) When the estate of a minor ward consists only of cash
265-16 or cash equivalents in an amount of not more than $25,000, the
265-17 guardianship of the estate may be terminated and the assets paid to
265-18 the county clerk of the county in which the guardianship proceeding
265-19 is pending, and the clerk shall manage the funds as provided by
265-20 Section 144(a) of this code>.
265-21 SECTION 69. Section 405, Texas Probate Code, is amended to
265-22 read as follows:
265-23 Sec. 405. Account for Final Settlement of Estates of
265-24 Decedents <and Persons and Estates of Wards>. When administration
265-25 of the estate of a decedent<, or guardianship of person or estate,
265-26 or of the person and estate of a ward,> is to be settled and
265-27 closed, the personal representative of such estate <or of such
266-1 ward> shall present to the court his verified account for final
266-2 settlement. In such account it shall be sufficient to refer to the
266-3 inventory without describing each item of property in detail, and
266-4 to refer to and adopt any and all proceedings had in the
266-5 administration <or guardianship, as the case may be,> concerning
266-6 sales, renting or hiring, leasing for mineral development, or any
266-7 other transactions on behalf of the estate <or of the ward, as the
266-8 case may be>, including exhibits, accounts, and vouchers previously
266-9 filed and approved, without restating the particular items thereof.
266-10 Each final account, however, shall be accompanied by proper
266-11 vouchers in support of each item thereof not already accounted for
266-12 and shall show, either by reference to any proceedings authorized
266-13 above or by statement of the facts:
266-14 <(a) As to Estates of Decedents.>
266-15 1. The property belonging to the estate which has come
266-16 into the hands of the executor or administrator.
266-17 2. The disposition that has been made of such
266-18 property.
266-19 3. The debts that have been paid.
266-20 4. The debts and expenses, if any, still owing by the
266-21 estate.
266-22 5. The property of the estate, if any, still remaining
266-23 on hand.
266-24 6. The persons entitled to receive such estate, their
266-25 relationship to the decedent, and their residence, if known, and
266-26 whether adults or minors, and, if minors, the names of their
266-27 guardians, if any.
267-1 7. All advancements or payments that have been made,
267-2 if any, by the executor or administrator from such estate to any
267-3 such person.
267-4 <(b) As to Estates of Wards.>
267-5 <1. The property, rents, revenues, and profits
267-6 received by the guardian, and belonging to his ward, during his
267-7 guardianship.>
267-8 <2. The disposition made of such property, rents,
267-9 revenues, and profits.>
267-10 <3. The expenses and debts, if any, against the estate
267-11 remaining unpaid.>
267-12 <4. The property of the estate remaining in the hands
267-13 of such guardian, if any.>
267-14 <5. Such other facts as appear necessary to a full and
267-15 definite understanding of the exact condition of the guardianship.>
267-16 SECTION 70. Section 406, Texas Probate Code, is amended to
267-17 read as follows:
267-18 Sec. 406. Procedure in Case of Neglect or Failure to File
267-19 Final Account; Payments Due Meantime. If a personal representative
267-20 charged with the duty of filing a final account fails or neglects
267-21 so to do at the proper time, the court shall, upon its own motion,
267-22 or upon the written complaint of any one interested in the
267-23 decedent's <or ward's> estate which has been administered, cause
267-24 such representative to be cited to appear and present such account
267-25 within the time specified in the citation. <So far as applicable,
267-26 this Section shall also govern with respect to guardians of the
267-27 person. Meantime, rentals or other payments becoming due to the
268-1 ward, his estate, or his guardian, between the date the ward's
268-2 disability terminates or the date of the ward's death and the
268-3 effective date of the guardian's discharge may be paid or tendered
268-4 to the emancipated ward, his guardian, or the personal
268-5 representative of the ward's estate, at obligor's option, and such
268-6 payment or tender shall constitute and be an absolute discharge of
268-7 such matured obligation for all purposes to the extent of the
268-8 amount thus paid or tendered.>
268-9 SECTION 71. Section 407, Texas Probate Code, is amended to
268-10 read as follows:
268-11 Sec. 407. Citation Upon Presentation of Account for Final
268-12 Settlement. Upon the filing of an account for final settlement by
268-13 temporary or permanent personal representatives of the estates of
268-14 decedents <or wards, or of the persons of wards>, citation shall
268-15 contain a statement that such final account has been filed, the
268-16 time and place when it will be considered by the court, and a
268-17 statement requiring the person or persons cited to appear and
268-18 contest the same if they see proper. Such citation shall be issued
268-19 by the county clerk to the persons and in the manner set out below.
268-20 1. In case of the estates of deceased persons, notice
268-21 shall be given by the personal representative to each heir or
268-22 beneficiary of the decedent by certified mail, return receipt
268-23 requested, unless another type of notice is directed by the court
268-24 by written order. The notice must include a copy of the account
268-25 for final settlement.
268-26 2. <If a ward be a living resident of this state who
268-27 is 14 years of age or older, and his or her residence be known, the
269-1 ward shall be cited by personal service, unless the ward, in person
269-2 or by attorney, by writing filed with the clerk, waives the
269-3 issuance and personal service of citation.>
269-4 <3. If one who has been a ward be deceased, the ward's
269-5 executor or administrator, if one has been appointed, shall be
269-6 personally served, but no service is required if the executor or
269-7 administrator is the same person as the guardian.>
269-8 <4. If a ward's residence is unknown, or if the ward
269-9 is a non-resident of this state, or if the ward is deceased and no
269-10 representative of the ward's estate has been appointed and
269-11 qualified in this state, the citation to the ward or to the ward's
269-12 estate shall be by publication, unless the court by written order
269-13 directs citation by posting.>
269-14 <5.> If the court deems further additional notice
269-15 necessary, it shall require the same by written order. In its
269-16 discretion, the court may allow the waiver of notice of an account
269-17 for final settlement in a proceeding concerning a decedent's estate
269-18 <or a guardianship>.
269-19 SECTION 72. Section 408(b), Texas Probate Code, is amended
269-20 to read as follows:
269-21 (b) Distribution of Remaining Property. Upon final
269-22 settlement of an estate, if there be any of such estate remaining
269-23 in the hands of the personal representative, the court shall order
269-24 <that it be delivered, in case of a ward, to such ward, or in the
269-25 case of a deceased ward to the personal representative of the
269-26 deceased ward's estate if one be appointed, or to any other person
269-27 legally entitled thereto; in case of a decedent,> that a partition
270-1 and distribution be made among the persons entitled to receive such
270-2 estate.
270-3 SECTION 73. Section 409, Texas Probate Code, is amended to
270-4 read as follows:
270-5 Sec. 409. Money Becoming Due Pending Final Discharge. Until
270-6 the order of final discharge of the personal representative is
270-7 entered in the minutes of the court, money or other thing of value
270-8 falling due to the estate <or ward> while the account for final
270-9 settlement is pending may be paid, delivered, or tendered to the
270-10 personal representative, who shall issue receipt therefor, and the
270-11 obligor and/or payor shall be thereby discharged of the obligation
270-12 for all purposes.
270-13 SECTION 74. Section 414, Texas Probate Code, is amended to
270-14 read as follows:
270-15 Sec. 414. Procedure if Representative Fails to Deliver
270-16 Estate. If any personal representative of an estate <or ward>,
270-17 upon final settlement, shall neglect to deliver to the person
270-18 entitled thereto when demanded any portion of an estate or any
270-19 funds or money in his hands ordered to be delivered, such person
270-20 may file with the clerk of the court his written complaint alleging
270-21 the fact of such neglect, the date of his demand, and other
270-22 relevant facts, whereupon the clerk shall issue a citation to be
270-23 served personally upon such representative, apprising him of the
270-24 complaint and citing him to appear before the court and answer, if
270-25 he so desires, at the time designated in the citation. If at the
270-26 hearing the court finds that the citation was duly served and
270-27 returned and that the representative is guilty of the neglect
271-1 charged, the court shall enter an order to that effect, and the
271-2 representative shall be liable to such person in damages at the
271-3 rate of ten per cent of the amount or appraised value of the money
271-4 or estate so withheld, per month, for each and every month or
271-5 fraction thereof that said estate or money or funds is and/or has
271-6 been so withheld after date of demand, which damages may be
271-7 recovered in any court of competent jurisdiction.
271-8 SECTION 75. The following provisions of the Texas Probate
271-9 Code are repealed:
271-10 (1) Sections 7, 130, 131, 144, 157, 158, 184, 185,
271-11 191, 193, 228, 229, 231, 236, 237, 246, 247, 305, 330, 339A, 376,
271-12 383, 404A, 404B, 411, and 413;
271-13 (2) Parts 3 and 5, Chapter V;
271-14 (3) Part 2, Chapter VI;
271-15 (4) Parts 9 and 10, Chapter VIII; and
271-16 (5) Chapter IX.
271-17 SECTION 76. (a) This Act applies to:
271-18 (1) an application for the appointment of a guardian
271-19 that is filed on or after September 1, 1993; and
271-20 (2) an application for the appointment of a guardian
271-21 that is filed before September 1, 1993, in which a guardianship has
271-22 not been created.
271-23 (b) An application described by Subsection (a)(2) of this
271-24 section must be modified to conform to the changes in law made by
271-25 this Act.
271-26 (c) A guardianship existing on September 1, 1993, must be
271-27 modified to conform to the changes in law made by this Act.
272-1 SECTION 77. This Act takes effect September 1, 1993.
272-2 SECTION 78. The importance of this legislation and the
272-3 crowded condition of the calendars in both houses create an
272-4 emergency and an imperative public necessity that the
272-5 constitutional rule requiring bills to be read on three several
272-6 days in each house be suspended, and this rule is hereby suspended.