1-1 By: Naishtat (Senate Sponsor - Henderson) H.B. No. 2685
1-2 (In the Senate - Received from the House May 13, 1993;
1-3 May 14, 1993, read first time and referred to Committee on
1-4 Jurisprudence; May 25, 1993, reported favorably by the following
1-5 vote: Yeas 7, Nays 0; May 25, 1993, sent to printer.)
1-6 COMMITTEE VOTE
1-7 Yea Nay PNV Absent
1-8 Henderson x
1-9 Harris of Tarrant x
1-10 Brown x
1-11 Harris of Dallas x
1-12 Luna x
1-13 Parker x
1-14 West x
1-15 A BILL TO BE ENTITLED
1-16 AN ACT
1-17 relating to guardianships of the person or estate of incapacitated
1-18 persons.
1-19 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-20 SECTION 1. The Texas Probate Code is amended by adding
1-21 Chapter XIII to read as follows:
1-22 CHAPTER XIII. GUARDIANSHIP
1-23 PART 1. GENERAL PROVISIONS
1-24 SUBPART A. DEFINITIONS; PURPOSE; APPLICABILITY;
1-25 PROCEEDINGS IN REM
1-26 Sec. 601. Definitions. In this chapter:
1-27 (1) "Attorney ad litem" means an attorney who is
1-28 appointed by a court to represent and advocate on behalf of a
1-29 proposed ward, an incapacitated person, or an unborn person in a
1-30 guardianship proceeding.
1-31 (2) "Authorized corporate surety" means a domestic or
1-32 foreign corporation authorized to do business in this state to
1-33 issue surety, guaranty, or indemnity bonds guaranteeing the
1-34 fidelity of guardians.
1-35 (3) "Child" includes a biological or adopted child,
1-36 whether adopted by a parent under a statutory procedure or by acts
1-37 of estoppel.
1-38 (4) "Claims" includes a liability against the estate
1-39 of a minor or an incapacitated person and debts due to the estate
1-40 of a minor or an incapacitated person.
1-41 (5) "Corporate fiduciary" means a trust company or
1-42 bank having trust powers, existing or doing business under the laws
1-43 of this state or of the United States, that is authorized by law to
1-44 act under the order or appointment of any court of record, without
1-45 giving bond, as a guardian, receiver, trustee, executor, or
1-46 administrator, or, although without general depository powers, as a
1-47 depository for any money paid into court, or to become sole
1-48 guarantor or surety in or on any bond required to be given under
1-49 the laws of this state.
1-50 (6) "Court" or "probate court" means a county court in
1-51 the exercise of its probate jurisdiction, a court created by
1-52 statute and authorized to exercise original probate jurisdiction,
1-53 or a district court exercising original probate jurisdiction in
1-54 contested matters.
1-55 (7) "Estate" or "guardianship estate" means the real
1-56 and personal property of a ward or deceased ward, both as the
1-57 property originally existed and as has from time to time changed in
1-58 form by sale, reinvestment, or otherwise, and as augmented by any
1-59 accretions and additions to (including any property to be
1-60 distributed to the representative of the deceased ward by the
1-61 trustee of a trust that terminates on the ward's death) or
1-62 substitutions for the property, and as diminished by any decreases
1-63 to or distributions from the property.
1-64 (8) "Exempt property" refers to that property of a
1-65 deceased ward's estate that is exempt from execution or forced sale
1-66 by the constitution or laws of this state, and to the allowance in
1-67 lieu of the property.
1-68 (9) "Guardian ad litem" means a person who is
2-1 appointed by a court to represent the best interests of an
2-2 incapacitated person in a guardianship proceeding.
2-3 (10) "Guardianship program" means a local, county, or
2-4 regional program that provides guardianship and related services to
2-5 an incapacitated person or other person who needs assistance in
2-6 making decisions concerning the person's own welfare or financial
2-7 affairs.
2-8 (11) "Incapacitated person" means:
2-9 (A) a minor;
2-10 (B) an adult individual who, because of a
2-11 physical or mental condition, is substantially unable to provide
2-12 food, clothing, or shelter for himself or herself, to care for the
2-13 individual's own physical health, or to manage the individual's own
2-14 financial affairs;
2-15 (C) a missing person; or
2-16 (D) a person who must have a guardian appointed
2-17 to receive funds due the person from any governmental source.
2-18 (12) "Interested persons" or "persons interested"
2-19 means an heir, devisee, spouse, creditor, or any other person
2-20 having a property right in, or claim against, the estate being
2-21 administered or a person interested in the welfare of an
2-22 incapacitated person, including a minor.
2-23 (13) "Minor" means a person who is younger than 18
2-24 years of age and who has never been married or who has not had the
2-25 person's disabilities of minority removed for general purposes.
2-26 (14) "Minutes" means the guardianship minutes.
2-27 (15) "Missing person" means a person reported by an
2-28 executive department of the United States to be a prisoner of war
2-29 or missing in the course of public service to the United States.
2-30 (16) "Mortgage" or "lien" includes a deed of trust;
2-31 vendor's lien; chattel mortgage; mechanic's, materialman's, or
2-32 laborer's lien; judgment, attachment, or garnishment lien; pledge
2-33 by hypothecation; and a federal or state tax lien.
2-34 (17) "Next of kin" includes an adopted child, the
2-35 descendants of an adopted child, and the adoptive parent of an
2-36 adopted child.
2-37 (18) "Parent" means the mother of a child, a man
2-38 presumed to be the biological father of a child, a man who has been
2-39 adjudicated to be the biological father of a child by a court of
2-40 competent jurisdiction, or an adoptive mother or father of a child,
2-41 but does not include a parent as to whom the parent-child
2-42 relationship has been terminated.
2-43 (19) "Person" includes natural persons, corporations,
2-44 and guardianship programs.
2-45 (20) "Personal property" includes an interest in
2-46 goods, money, choses in action, evidence of debts, and chattels
2-47 real.
2-48 (21) "Personal representative" or "representative"
2-49 includes a guardian, and a successor guardian.
2-50 (22) "Private professional guardian" means a person,
2-51 other than an attorney or a corporate fiduciary, who is engaged in
2-52 the business of providing guardianship services.
2-53 (23) "Proceedings in guardianship," "guardianship
2-54 matter," "guardianship matters," "guardianship proceeding," and
2-55 "proceedings for guardianship" are synonymous and include a matter
2-56 or proceeding relating to a guardianship or any other matter
2-57 addressed by this chapter.
2-58 (24) "Property" includes both real and personal
2-59 property.
2-60 (25) "Proposed ward" means a person alleged to be
2-61 incapacitated in a guardianship proceeding.
2-62 (26) "Real property" includes estates and interests in
2-63 lands, corporeal or incorporeal, legal or equitable, other than
2-64 chattels real.
2-65 (27) "Statutory probate court" means a statutory court
2-66 whose jurisdiction is limited by statute to the general
2-67 jurisdiction of a probate court and a court whose statutorily
2-68 designated name contains the word "probate." County courts at law
2-69 exercising probate jurisdiction are not statutory probate courts
2-70 under this chapter unless the statutorily designated name of the
3-1 county courts at law includes the word "probate."
3-2 (28) "Surety" includes a personal and a corporate
3-3 surety.
3-4 (29) "Ward" is a person for whom a guardian has been
3-5 appointed.
3-6 (30) The singular number includes the plural; the
3-7 plural number includes the singular.
3-8 (31) The masculine gender includes the feminine and
3-9 neuter.
3-10 Sec. 602. POLICY; PURPOSE OF GUARDIANSHIP. A court may
3-11 appoint a guardian with full authority over an incapacitated person
3-12 or may grant a guardian limited authority over an incapacitated
3-13 person as indicated by the incapacitated person's actual mental or
3-14 physical limitations and only as necessary to promote and protect
3-15 the well-being of the person. If the person is not a minor, the
3-16 court may not use age as the sole factor in determining whether to
3-17 appoint a guardian for the person. In creating a guardianship that
3-18 gives a guardian limited power or authority over an incapacitated
3-19 person, the court shall design the guardianship to encourage the
3-20 development or maintenance of maximum self-reliance and
3-21 independence in the incapacitated person.
3-22 Sec. 603. LAWS APPLICABLE TO GUARDIANSHIPS. (a) To the
3-23 extent applicable and not inconsistent with other provisions of
3-24 this code, the laws and rules governing estates of decedents apply
3-25 to and govern guardianships.
3-26 (b) A reference in other sections of this code or in other
3-27 law to a person who is mentally, physically, or legally
3-28 incompetent, a person who is judicially declared incompetent, an
3-29 incompetent or an incompetent person, a person of unsound mind, or
3-30 a habitual drunkard means an incapacitated person.
3-31 Sec. 604. PROCEEDING IN REM. From the filing of the
3-32 application for the appointment of a guardian of the estate or
3-33 person, or both, until the guardianship is settled and closed under
3-34 this chapter, the administration of the estate of a minor or other
3-35 incapacitated person is one proceeding for purposes of jurisdiction
3-36 and is a proceeding in rem.
3-37 PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS
3-38 SUBPART A. JURISDICTION
3-39 Sec. 605. County Court Jurisdiction. The county court has
3-40 the general jurisdiction of a probate court. The county court
3-41 shall appoint guardians of minors and other incapacitated persons,
3-42 grant letters of guardianship, settle accounts of guardians, and
3-43 transact all business appertaining to estates subject to
3-44 guardianship, including the settlement, partition, and distribution
3-45 of the estates. The county court may also enter other orders as
3-46 may be authorized under this chapter.
3-47 Sec. 606. District Court and Other Court of Record
3-48 Jurisdiction. (a) The district court has original control and
3-49 jurisdiction over guardians and wards under regulations as may be
3-50 prescribed by law.
3-51 (b) In those counties in which there is no statutory probate
3-52 court, county court at law, or other statutory court exercising the
3-53 jurisdiction of a probate court, all applications, petitions and
3-54 motions regarding guardianships, mental illness matters, and other
3-55 matters covered by this chapter shall be filed and heard in the
3-56 county court, except that in contested guardianship matters, the
3-57 judge of the county court may on the judge's own motion, or shall
3-58 on the motion of any party to the proceeding, according to the
3-59 motion, request as provided by Section 25.0022, Government Code,
3-60 and its subsequent amendments the assignment of a statutory probate
3-61 judge to hear the contested portion of the proceeding, or transfer
3-62 the contested portion of the proceeding to the district court,
3-63 which may hear the transferred contested matters as if originally
3-64 filed in the district court. The county court continues to
3-65 exercise jurisdiction over the management of the guardianship with
3-66 the exception of the contested matter until final disposition of
3-67 the contested matter is made by the assigned judge or the district
3-68 court. In contested matters transferred to the district court as
3-69 provided by this subsection, the district court, concurrently with
3-70 the county court, has the general jurisdiction of a probate court.
4-1 On resolution of all pending contested matters, the district court
4-2 shall transfer the contested portion of the guardianship proceeding
4-3 to the county court for further proceedings not inconsistent with
4-4 the orders of the district court. If a contested portion of the
4-5 proceeding is transferred to a district court under this
4-6 subsection, the clerk of the district court may perform in relation
4-7 to the transferred portion of the proceeding any function a county
4-8 clerk may perform in that type of contested proceeding.
4-9 (c) In those counties in which there is a statutory probate
4-10 court, county court at law, or other statutory court exercising the
4-11 jurisdiction of a probate court, all applications, petitions and
4-12 motions regarding guardianships, mental illness matters, or other
4-13 matters addressed by this chapter shall be filed and heard in those
4-14 courts and the constitutional county court, rather than in the
4-15 district courts, unless otherwise provided by the legislature, and
4-16 the judge of a county court may hear any of those matters sitting
4-17 for the judge of any other county court. Except as provided by
4-18 Section 608 of this code, in contested guardianship matters, the
4-19 judge of the constitutional county court may on the judge's own
4-20 motion, and shall on the motion of a party to the proceeding,
4-21 transfer the proceeding to the statutory probate court, county
4-22 court at law, or other statutory court exercising the jurisdiction
4-23 of a probate court. The court to which the proceeding is
4-24 transferred may hear the proceeding as if originally filed in the
4-25 court.
4-26 (d) A statutory probate court has concurrent jurisdiction
4-27 with the district court in all actions by or against a person in
4-28 the person's capacity as guardian.
4-29 (e) A court that exercises original probate jurisdiction has
4-30 the power to hear all matters incident to an estate. When a surety
4-31 is called on to perform in place of a guardian, a court exercising
4-32 original probate jurisdiction may award judgment against the
4-33 guardian in favor of the guardian's surety in the same suit, even
4-34 if the ward has died.
4-35 (f) A final order of a court that exercises original probate
4-36 jurisdiction is appealable to a court of appeals.
4-37 Sec. 607. Matters Appertaining and Incident to an Estate.
4-38 (a) In a proceeding in a constitutional county court or a
4-39 statutory county court at law, the phrases "appertaining to
4-40 estates" and "incident to an estate" in this chapter include the
4-41 appointment of guardians, the issuance of letters of guardianship,
4-42 a claim by or against a guardianship estate, all actions for trial
4-43 of title to land incident to a guardianship estate and for the
4-44 enforcement of liens incident to a guardianship estate, all actions
4-45 for trial of the right of property incident to a guardianship
4-46 estate, and generally all matters relating to the settlement,
4-47 partition, and distribution of a guardianship estate.
4-48 (b) In a proceeding in a statutory probate court or district
4-49 court, the phrases "appertaining to estates" and "incident to an
4-50 estate" in this chapter include the appointment of guardians, the
4-51 issuance of letters of guardianship, all claims by or against a
4-52 guardianship estate, all actions for trial of title to land and for
4-53 the enforcement of liens on the land, all actions for trial of the
4-54 right of property, and generally all matters relating to the
4-55 settlement, partition, and distribution of a guardianship estate.
4-56 A statutory probate court, in the exercise of its jurisdiction and
4-57 notwithstanding any other provision of this chapter, may hear all
4-58 suits, actions, and applications filed against or on behalf of any
4-59 guardianship. In a situation in which the jurisdiction of a
4-60 statutory probate court is concurrent with that of a district
4-61 court, a cause of action appertaining to or incident to a
4-62 guardianship estate shall be brought in a statutory probate court
4-63 rather than in the district court.
4-64 (c) In all actions by or against a person in the person's
4-65 capacity as a guardian, a statutory probate court has concurrent
4-66 jurisdiction with a district court.
4-67 (d) A statutory probate court may exercise the pendent and
4-68 ancillary jurisdiction necessary to promote judicial efficiency and
4-69 economy.
4-70 (e) Subsections (c) and (d) of this section apply whether or
5-1 not the matter is appertaining to or incident to a guardianship
5-2 estate.
5-3 Sec. 608. Transfer of Guardianship Proceeding. A judge of a
5-4 statutory probate court on the motion of a party to the action or
5-5 of a person interested in a guardianship, may transfer to the
5-6 judge's court from a district, county, or statutory court a cause
5-7 of action appertaining to or incident to a guardianship estate that
5-8 is pending in the statutory probate court and may consolidate the
5-9 transferred cause of action with the other proceedings in the
5-10 statutory probate court relating to the guardianship estate.
5-11 Sec. 609. Contested Guardianship of the Person of a Minor.
5-12 (a) If an interested person contests an application for the
5-13 appointment of a guardian of the person of a minor or an interested
5-14 person seeks the removal of a guardian of the person of a minor,
5-15 the judge, on the judge's own motion, may transfer all matters
5-16 relating to the guardianship of the person of the minor to a court
5-17 of competent jurisdiction in which a suit affecting the
5-18 parent-child relationship under the Family Code is pending.
5-19 (b) The probate court that transfers a proceeding under this
5-20 section to a court with proper jurisdiction over suits affecting
5-21 the parent-child relationship shall send to the court to which the
5-22 transfer is made the complete files in all matters affecting the
5-23 guardianship of the person of the minor and certified copies of all
5-24 entries in the minutes. The transferring court shall keep a copy
5-25 of the transferred files. If the transferring court retains
5-26 jurisdiction of the guardianship of the estate of the minor or of
5-27 another minor who was the subject of the suit, the court shall send
5-28 a copy of the complete files to the court to which the transfer is
5-29 made and shall keep the original files.
5-30 (c) The court to which a transfer is made under this section
5-31 shall apply the procedural and substantive provisions of the Family
5-32 Code, including Section 11.05(h), and its subsequent amendments, in
5-33 regard to enforcing an order rendered by the court from which the
5-34 proceeding was transferred.
5-35 SUBPART B. VENUE
5-36 Sec. 610. VENUE FOR APPOINTMENT OF GUARDIAN. (a) Except as
5-37 otherwise authorized by this section, a proceeding for the
5-38 appointment of a guardian for the person or estate, or both, of an
5-39 incapacitated person shall be brought in the county in which the
5-40 proposed ward resides or is located on the date the application is
5-41 filed or in the county in which the principal estate of the
5-42 proposed ward is located.
5-43 (b) A proceeding for the appointment of a guardian for the
5-44 person or estate, or both, of a minor may be brought:
5-45 (1) in the county in which both the minor's parents
5-46 reside;
5-47 (2) if the parents do not reside in the same county,
5-48 in the county in which the parent who is the sole managing
5-49 conservator of the minor resides, or in the county in which the
5-50 parent who is the joint managing conservator with the greater
5-51 period of physical possession of and access to the minor resides;
5-52 (3) if only one parent is living and the parent has
5-53 custody of the minor, in the county in which that parent resides;
5-54 (4) if both parents are dead but the minor was in the
5-55 custody of a deceased parent, in the county in which the last
5-56 surviving parent having custody resided; or
5-57 (5) if both parents of a minor child have died in a
5-58 common disaster and there is no evidence that the parents died
5-59 other than simultaneously, in the county in which both deceased
5-60 parents resided at the time of their simultaneous deaths if they
5-61 resided in the same county.
5-62 (c) A proceeding for the appointment of a guardian who was
5-63 appointed by will may be brought in the county in which the will
5-64 was admitted to probate or in the county of the appointee's
5-65 residence if the appointee resides in this state.
5-66 (d) A proceeding for the appointment of a guardian for the
5-67 estate of a missing person may be brought:
5-68 (1) in the county in which the missing person's spouse
5-69 resides;
5-70 (2) if there is no spouse, in the county in which a
6-1 parent or child of the missing person resides; or
6-2 (3) if there is no spouse, parent, or child, in the
6-3 county in which the missing person's next of kin resides.
6-4 Sec. 611. Concurrent Venue and Transfer for Want of Venue.
6-5 (a) If two or more courts have concurrent venue of a guardianship
6-6 matter, the court in which an application for a guardianship
6-7 proceeding is initially filed has and retains jurisdiction of the
6-8 guardianship matter. A proceeding is considered commenced by the
6-9 filing of an application alleging facts sufficient to confer venue,
6-10 and the proceeding initially legally commenced extends to all of
6-11 the property of the guardianship estate.
6-12 (b) If a guardianship proceeding is commenced in more than
6-13 one county, it shall be stayed except in the county in which it was
6-14 initially commenced until final determination of proper venue is
6-15 made by the court in the county in which it was initially
6-16 commenced.
6-17 (c) If it appears to the court at any time before the
6-18 guardianship is closed that the proceeding was commenced in a court
6-19 that did not have venue over the proceeding, the court shall, on
6-20 the application of any interested person, transfer the proceeding
6-21 to the proper county.
6-22 (d) When a proceeding is transferred to another county under
6-23 a provision of this chapter, all orders entered in connection with
6-24 the proceeding shall be valid and shall be recognized in the court
6-25 to which the guardianship was ordered transferred, if the orders
6-26 were made and entered in conformance with the procedures prescribed
6-27 by this code.
6-28 Sec. 612. APPLICATION FOR TRANSFER OF GUARDIANSHIP TO
6-29 ANOTHER COUNTY. When a guardian or any other person desires to
6-30 remove the transaction of the business of the guardianship from one
6-31 county to another, the person shall file a written application in
6-32 the court in which the guardianship is pending stating the reason
6-33 for moving the transaction of business.
6-34 Sec. 613. NOTICE. (a) On filing an application to remove a
6-35 guardianship to another county, the sureties on the bond of the
6-36 guardian shall be cited by personal service to appear and show
6-37 cause why the application should not be granted.
6-38 (b) If an application is filed by a person other than the
6-39 guardian, the guardian shall be cited by personal service to appear
6-40 and show cause why the application should not be granted.
6-41 Sec. 614. COURT ACTION. On hearing an application under
6-42 Section 612 of this code, if good cause is not shown to deny the
6-43 application and it appears that removal of the guardianship is in
6-44 the best interests of the ward, the court shall enter an order
6-45 authorizing the removal on payment on behalf of the estate of all
6-46 accrued costs.
6-47 Sec. 615. TRANSCRIPT OF RECORD. When an order of removal is
6-48 made under Section 614 of this code, the clerk shall record any
6-49 unrecorded papers of the guardianship required to be recorded and
6-50 make out a complete certified transcript of all the orders,
6-51 decrees, judgments, and proceedings in the guardianship. On
6-52 payment of the clerk's fees, the clerk shall transmit the
6-53 transcript, with the original papers in the case, to the county
6-54 clerk of the county to which the guardianship was ordered removed.
6-55 Sec. 616. REMOVAL EFFECTIVE. The order removing a
6-56 guardianship does not take effect until:
6-57 (1) the transcript required by Section 615 of this
6-58 code is filed in the office of the county clerk of the county to
6-59 which the guardianship was ordered removed; and
6-60 (2) a certificate under the clerk's official seal and
6-61 reporting the filing of the transcript is filed in the court
6-62 ordering the removal by the county clerk of the county to which the
6-63 guardianship was ordered removed.
6-64 Sec. 617. CONTINUATION OF GUARDIANSHIP. When a guardianship
6-65 is removed from one county to another in accordance with this
6-66 subpart, the guardianship proceeds in the court to which it was
6-67 removed as if it had been originally commenced in that court. It
6-68 is not necessary to record in the receiving court any of the papers
6-69 in the case that were recorded in the court from which the case was
6-70 removed.
7-1 Sec. 618. NEW GUARDIAN APPOINTED ON REMOVAL. If it appears
7-2 to the court that removal of the guardianship is in the best
7-3 interests of the ward, but that because of the removal it will be
7-4 unduly expensive or unduly inconvenient to the estate for the
7-5 guardian of the estate to continue to serve in that capacity, the
7-6 court may in its order of removal revoke the letters of
7-7 guardianship and appoint a new guardian, and the former guardian
7-8 shall account for and deliver the estate as provided by this
7-9 chapter in a case in which a guardian resigns.
7-10 SUBPART C. DUTIES AND RECORDS OF CLERK
7-11 Sec. 621. Application and Other Papers to be Filed With
7-12 Clerk. (a) An application for a guardianship proceeding, a
7-13 complaint, petition, or other paper permitted or required by law to
7-14 be filed in the court in guardianship matters shall be filed with
7-15 the county clerk of the proper county.
7-16 (b) The county clerk shall file the paper received under
7-17 this section and endorse on each paper the date filed, the docket
7-18 number, and the clerk's official signature.
7-19 Sec. 622. COSTS AND SECURITY. (a) The law regulating costs
7-20 in ordinary civil cases apply to a guardianship matter unless
7-21 otherwise expressly provided by this chapter.
7-22 (b) When a person other than the guardian, attorney ad
7-23 litem, or guardian ad litem files an application, complaint, or
7-24 opposition in relation to a guardianship matter, the clerk may
7-25 require the person to give security for the probable cost of the
7-26 guardianship proceeding before filing. A person interested in the
7-27 guardianship or in the welfare of the ward, or an officer of the
7-28 court, at any time before the trial of an application, complaint,
7-29 or opposition in relation to a guardianship matter, may obtain from
7-30 the court, on written motion, an order requiring the person who
7-31 filed the application, complaint, or opposition to give security
7-32 for the probable costs of the proceeding. The rules governing
7-33 civil suits in the county court relating to this subject control in
7-34 these cases.
7-35 (c) No security for costs shall be required of a guardian,
7-36 attorney ad litem, or guardian ad litem appointed under this
7-37 chapter by a court of this state in any suit brought by the
7-38 guardian, attorney ad litem, or guardian ad litem in their
7-39 respective fiduciary capacities.
7-40 Sec. 623. JUDGE'S GUARDIANSHIP DOCKET. (a) The county
7-41 clerk shall keep a record book to be styled "Judge's Guardianship
7-42 Docket" and shall enter in the record book:
7-43 (1) the name of each person on whose person or estate
7-44 a proceeding is had or is sought to be had;
7-45 (2) the name of the guardian of the estate or person
7-46 or of the applicant for letters;
7-47 (3) the date the original application for a
7-48 guardianship proceeding was filed;
7-49 (4) a minute, including the date, of each order,
7-50 judgment, decree, and proceeding in each estate; and
7-51 (5) a number of each guardianship on the docket in the
7-52 order in which a proceeding is commenced.
7-53 (b) Each paper filed in a guardianship proceeding shall be
7-54 given the corresponding docket number of the estate.
7-55 Sec. 624. CLAIM DOCKET. The county clerk shall keep a
7-56 record book to be styled "Claim Docket" and shall enter in the
7-57 claim docket all claims presented against a guardianship for court
7-58 approval. The claim docket shall be ruled in 16 columns at proper
7-59 intervals from top to bottom, with a short note of the contents at
7-60 the top of each column. One or more pages shall be assigned to
7-61 each guardianship. The following information shall be entered in
7-62 the respective columns beginning with the first or marginal
7-63 column: The names of claimants in the order in which their claims
7-64 are filed; the amount of the claim; its date; the date of filing;
7-65 when due; the date from which it bears interest; the rate of
7-66 interest; when allowed by the guardian; the amount allowed; the
7-67 date of rejection; when approved; the amount approved; when
7-68 disapproved; the class to which the claim belongs; when established
7-69 by judgment of a court; the amount of the judgment.
7-70 Sec. 625. GUARDIANSHIP MINUTES AND PAPERS TO BE RECORDED
8-1 THEREIN. The county clerk shall keep a record book styled
8-2 "Guardianship Minutes" and shall enter in the guardianship minutes
8-3 all orders in full, judgments, decrees, and proceedings of the
8-4 court, in addition to all:
8-5 (1) applications for the granting of guardianship;
8-6 (2) citations and notices, whether published or
8-7 posted, with the returns on the citations and notices;
8-8 (3) bonds and official oaths;
8-9 (4) inventories, appraisements, and lists of claims;
8-10 (5) exhibits and accounts;
8-11 (6) reports of hiring, renting, or sale;
8-12 (7) applications for sale or partition of real estate
8-13 and reports of sale and of commissioners of partition;
8-14 (8) applications for authority to execute leases for
8-15 mineral development, or for pooling or unitization of lands,
8-16 royalty, or other interest in minerals, or to lend or invest money;
8-17 (9) reports of lending or investing money; and
8-18 (10) reports of guardians of the persons.
8-19 Sec. 626. GUARDIANSHIP FEE BOOK. The county clerk shall
8-20 keep a record book styled "Guardianship Fee Book" and shall enter
8-21 in the guardianship fee book each item of costs that accrue to the
8-22 officers of the court, with witness fees, if any, showing the:
8-23 (1) party to whom the costs or fees are due;
8-24 (2) date of the accrual of the costs or fees;
8-25 (3) guardianship or party liable for the costs or
8-26 fees; and
8-27 (4) date on which the costs or fees are paid.
8-28 Sec. 627. INDEX. The county clerk shall properly index each
8-29 record book and keep it open for public inspection but may not
8-30 release it from the clerk's custody.
8-31 Sec. 628. USE OF RECORDS AS EVIDENCE. The record books
8-32 described in other sections of this chapter, or certified copies of
8-33 the record books are evidence in any court of this state.
8-34 Sec. 629. CALL OF THE DOCKETS. The judge of the court in
8-35 which a guardianship proceeding is pending, as the judge
8-36 determines, shall call guardianship matters in their regular order
8-37 on both the guardianship and claim dockets and shall make necessary
8-38 orders.
8-39 Sec. 630. CLERK MAY SET HEARINGS. If the county judge is
8-40 absent from the county seat or is on vacation, disqualified, ill,
8-41 or deceased and is unable to designate the time and place for
8-42 hearing a guardianship matter pending in the judge's court, the
8-43 county clerk of the county in which the matter is pending may
8-44 designate the time and place for hearing, entering the setting on
8-45 the judge's docket and certifying on the docket the reason that the
8-46 judge is not acting to set the hearing. If a qualified judge is
8-47 not present for the hearing, after service of the notices and
8-48 citations required by law with reference to the time and place of
8-49 hearing has been perfected, the hearing is automatically continued
8-50 from day to day until a qualified judge is present to hear and
8-51 determine the matter.
8-52 Sec. 631. CLERK'S DUTIES. (a) If the proper venue is
8-53 finally determined to be in another county, the clerk, after making
8-54 and retaining a true copy of the entire file in the case, shall
8-55 transmit the original file to the proper county, and a proceeding
8-56 shall be held in the proper county in the same manner as if the
8-57 proceeding had originally been instituted in the proper county.
8-58 (b) By transmitting to the proper court in the proper county
8-59 for venue purposes the original file in the case, with certified
8-60 copies of all entries in the minutes made in the file, an
8-61 administration of the guardianship in the proper county for venue
8-62 purposes shall be completed in the same manner as if the proceeding
8-63 had originally been instituted in that county.
8-64 (c) The clerk of the court from which the proceeding is
8-65 transferred shall transmit to the court to which the proceeding is
8-66 transferred the original file in the proceeding and a certified
8-67 copy of the entries in the minutes that relate to the proceeding.
8-68 SUBPART D. SERVICE AND NOTICE
8-69 Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
8-70 CITATION, NOTICES, AND WRITS IN GUARDIANSHIP MATTERS. (a) A
9-1 person does not need to be cited or otherwise given notice in a
9-2 guardianship matter except in situations in which this chapter
9-3 expressly provides for citation or the giving of notice. If this
9-4 chapter does not expressly provide for citation or the issuance or
9-5 return of notice in a guardianship matter, the court may require
9-6 that notice be given. If the court requires that notice be given,
9-7 the court shall prescribe the form and manner of service and return
9-8 of service.
9-9 (b) Unless a court order is required by a provision of this
9-10 chapter, the county clerk shall issue without a court order
9-11 necessary citations, writs, and process in guardianship matters and
9-12 all notices not required to be issued by guardians.
9-13 (c) A citation and notice issued by the clerk shall be
9-14 signed and sealed by the clerk and shall be styled "The State of
9-15 Texas." A notice required to be given by a guardian shall be in
9-16 writing and signed by the guardian in the guardian's official
9-17 capacity. A citation or notice shall be dated and directed to the
9-18 person that is being cited or notified and must state the style and
9-19 number of the proceeding and the court in which the proceeding is
9-20 pending and must describe generally the nature of the proceeding or
9-21 matter to which the citation or notice relates. A precept directed
9-22 to an officer is not necessary. A citation or notice must direct
9-23 the person cited or notified to appear by filing a written contest
9-24 or answer or perform other required acts. A citation or notice
9-25 must state when and where an appearance or performance by a person
9-26 cited or notified is required. A citation or notice is not
9-27 defective because it contains a precept directed to an officer
9-28 authorized to serve it. A writ or other process other than a
9-29 citation or notice shall be directed "To any sheriff or constable
9-30 within the State of Texas" and may not be held defective because it
9-31 is directed to the sheriff or any constable of a specific county if
9-32 the writ or other process is properly served within the named
9-33 county by an officer authorized to serve it.
9-34 (d) In all situations in which this chapter requires that
9-35 notice be given or that a person be cited, and in which a specific
9-36 method of giving the notice or citing the person, or a specific
9-37 method of service and return of the citation or notice is not
9-38 given, or an insufficient or inadequate provision appears with
9-39 respect to any matter relating to citation or notice, or on request
9-40 of an interested person, notice or citation shall be issued,
9-41 served, and returned in the manner the court, by written order,
9-42 directs in accordance with this chapter and the Texas Rules of
9-43 Civil Procedure and has the same force and effect as if the manner
9-44 of service and return had been specified in this chapter.
9-45 (e) Except in instances in which this chapter expressly
9-46 provides for another method of service, a notice or citation
9-47 required to be served on a guardian or receiver shall be served by
9-48 the clerk that issues the citation or notice. The clerk shall
9-49 serve the citation or notice by sending the original citation or
9-50 notice by registered or certified mail to the attorney of record
9-51 for the guardian or receiver or to the guardian or receiver, if the
9-52 guardian or receiver does not have an attorney of record.
9-53 (f)(1) In cases in which it is provided that personal
9-54 service shall be had with respect to a citation or notice, the
9-55 citation or notice must be served on the attorney of record for the
9-56 person who is being cited or notified. Notwithstanding the
9-57 requirement of personal service, service may be made on the
9-58 attorney by any method specified under this chapter for service on
9-59 an attorney. If there is no attorney of record in the proceeding
9-60 for the person who is being cited or notified, or if an attempt to
9-61 make service on the attorney was unsuccessful, a citation or notice
9-62 directed to a person within this state must be served in person by
9-63 the sheriff or constable on the person who is being cited or
9-64 notified by delivering to the person a true copy of the citation or
9-65 notice at least 10 days before the return day on the citation or
9-66 notice, exclusive of the date of service. If the person who is
9-67 being cited or notified is absent from the state or is a
9-68 nonresident, the citation or notice may be served by a
9-69 disinterested person competent to make oath of the fact. The
9-70 citation or notice served by a disinterested person shall be
10-1 returnable at least 10 days after the date of service, exclusive of
10-2 the date of service. The return of the person serving the citation
10-3 or notice shall be endorsed on or attached to the citation or
10-4 notice. The return must show the time and place of service,
10-5 certify that a true copy of the citation or notice was delivered to
10-6 the person directed to be served, be subscribed and sworn to before
10-7 an officer authorized by the laws of this state to take affidavits,
10-8 under the hand and official seal of the officer, and returned to
10-9 the county clerk who issued the citation or notice. If the
10-10 citation or notice is returned with the notation that the person
10-11 sought to be served, whether or not within this state, cannot be
10-12 found, the clerk shall issue a new citation or notice directed to
10-13 the person sought to be served and service shall be by publication.
10-14 (2) When citation or notice is required to be posted,
10-15 the sheriff or constable shall post the citation or notice at the
10-16 courthouse door of the county in which the proceeding is pending,
10-17 or at the place in or near the courthouse where public notices
10-18 customarily are posted, for at least 10 days before the return day
10-19 of the citation or notice, exclusive of the date of posting. The
10-20 clerk shall deliver the original and a copy of the citation or
10-21 notice to the sheriff or a constable of the proper county, who
10-22 shall post the copy as prescribed by this section and return the
10-23 original to the clerk, stating in a written return of the copy the
10-24 time when and the place where the sheriff or constable posted the
10-25 copy. The date of posting is the date of service. When posting of
10-26 notice by a guardian is authorized or required, the method
10-27 prescribed by this section shall be followed. The notice is to be
10-28 issued in the name of the guardian, addressed and delivered to,
10-29 posted and returned by, the proper officer, and filed with the
10-30 clerk.
10-31 (3) When a person is to be cited or notified by
10-32 publication, the citation or notice shall be published once in a
10-33 newspaper of general circulation in the county in which the
10-34 proceeding is pending, and the publication shall be not less than
10-35 10 days before the return date of the citation or notice, exclusive
10-36 of the date of publication. The date of publication of the
10-37 newspaper in which the citation or notice is published appears is
10-38 the date of service. If there is no newspaper of general
10-39 circulation published or printed in the county in which citation or
10-40 notice is to be had, service of the citation or notice shall be by
10-41 posting.
10-42 (4)(A) When a citation or notice is required or
10-43 permitted to be served by registered or certified mail, other than
10-44 a notice required to be given by a guardian, the clerk shall issue
10-45 the citation or notice and shall serve the citation or notice by
10-46 sending the original citation or notice by registered or certified
10-47 mail. A guardian shall issue notice required to be given by the
10-48 guardian by registered or certified mail, and the guardian shall
10-49 serve the notice by sending the original notice by registered or
10-50 certified mail. The citation or notice shall be mailed return
10-51 receipt requested with instructions to deliver to the addressee
10-52 only. The envelope containing the citation or notice shall be
10-53 addressed to the attorney of record in the proceeding for the
10-54 person who is being cited or notified, but if there is no attorney
10-55 of record, or if the citation or notice is returned undelivered,
10-56 the envelope containing the citation or notice shall be addressed
10-57 to the person who is being cited or notified. A copy of the
10-58 citation or notice and the certificate of the clerk or guardian
10-59 showing the fact and date of mailing shall be filed and recorded.
10-60 If a receipt is returned, it shall be attached to the certificate.
10-61 (B) When a citation or notice is required or
10-62 permitted to be served by ordinary mail, the clerk or the guardian
10-63 when required by statute or court order, shall serve the citation
10-64 or notice by mailing the original to the person being cited or
10-65 notified. A copy of the citation or notice and a certificate of
10-66 the person serving the citation or notice that shows the fact and
10-67 time of mailing shall be filed and recorded.
10-68 (C) When service is made by mail, the date of
10-69 mailing is the date of service. Service by mail must be made not
10-70 less than 20 days before the return day of the citation or notice,
11-1 exclusive of the date of service.
11-2 (D) If a citation or notice served by mail is
11-3 returned undelivered, a new citation or notice shall be issued, and
11-4 the new citation or notice shall be served by posting.
11-5 (g) A citation or notice issued by the clerk and served by
11-6 personal service, by mail, by posting, or by publication shall be
11-7 returned to the court from which the citation or notice was issued
11-8 on the first Monday after the service is perfected.
11-9 (h) In a guardianship matter in which citation or notice is
11-10 required to be served by posting and issued in conformity with the
11-11 applicable provision of this code, the citation or notice and the
11-12 service of and return of the citation or notice is sufficient and
11-13 valid if a sheriff or constable posts a copy of the citation or
11-14 notice at the place or places prescribed by this chapter on a day
11-15 that is sufficiently before the return day contained in the
11-16 citation or notice for the period of time for which the citation or
11-17 notice is required to be posted to elapse before the return day of
11-18 the citation or notice. The sufficiency or validity of the
11-19 citation or notice or the service of or return of the service of
11-20 the citation or notice is not affected by the fact that the sheriff
11-21 or constable makes his return on the citation or notice and returns
11-22 the citation or notice to the court before the period elapses for
11-23 which the citation or notice is required to be posted, even though
11-24 the return is made, and the citation or notice is returned to the
11-25 court, on the same day it is issued.
11-26 (i) Proof of service by publication, posting, mailing, or
11-27 otherwise in all cases requiring notice or citation shall be filed
11-28 before a hearing. Proof of service made by a sheriff or constable
11-29 shall be made by the return of service. Service made by a private
11-30 person shall be proved by the person's affidavit. Proof of service
11-31 by publication shall be made by an affidavit of the publisher or of
11-32 an employee of the publisher that shows the issue date of the
11-33 newspaper that carried the notice or citation and that has attached
11-34 to or embodied in the affidavit a copy of the notice or citation.
11-35 Proof of service by mail shall be made by the certificate of the
11-36 clerk, or the affidavit of the guardian or other person that makes
11-37 the service that states the fact and time of mailing. The return
11-38 receipt must be attached to the certificate, if a receipt has been
11-39 returned if service is made by registered or certified mail.
11-40 (j) At any time after an application is filed for the
11-41 purpose of commencing a guardianship proceeding, a person
11-42 interested in the estate or welfare of a ward or an incapacitated
11-43 person may file with the clerk a written request that the person be
11-44 notified of any or all specifically designated motions,
11-45 applications, or pleadings filed by any person, or by a person
11-46 specifically designated in the request. The person who makes the
11-47 request is responsible for the fees and costs associated with the
11-48 documents specified in the request. The clerk may require a
11-49 deposit to cover the estimated costs of furnishing the person with
11-50 the requested notice. The clerk by ordinary mail shall send to the
11-51 requesting person a copy of any document specified in the request.
11-52 A proceeding is not invalid if the clerk fails to comply with the
11-53 request under this subsection.
11-54 Sec. 633. NOTICE AND CITATION FOR APPLICATION OF
11-55 GUARDIANSHIP. (a) On the filing of an application for
11-56 guardianship, notice shall be issued and served as provided by this
11-57 section.
11-58 (b) The court clerk shall issue a notice stating that the
11-59 application for guardianship was filed, the name of the proposed
11-60 ward, and the name of the applicant. The notice must cite all
11-61 persons interested in the welfare of the proposed ward to appear at
11-62 the time and place stated in the notice if they wish to contest the
11-63 application.
11-64 (c) A copy of the notice shall be posted, and the sheriff or
11-65 other officer posting the notice shall return the original notice,
11-66 officially signed and marked in writing with the time and place of
11-67 posting.
11-68 (d) The sheriff or other officer posting the notice shall
11-69 personally serve a copy of the notice, with citation to appear and
11-70 answer the application for guardianship, to:
12-1 (1) the proposed ward, unless the proposed ward is a
12-2 missing person, or a parent with whom the minor resides if the
12-3 proposed ward is a minor who is 14 years of age or younger;
12-4 (2) the proposed ward's parents; and
12-5 (3) any conservator or person having control of the
12-6 care and welfare of the proposed ward.
12-7 (e) The court clerk, at the applicant's request, or the
12-8 applicant shall mail a copy of the notice by registered or
12-9 certified mail, return receipt requested, to the following persons
12-10 if their whereabouts are known or can be reasonably ascertained:
12-11 (1) to the spouse, the parents, all siblings, and all
12-12 children of a proposed ward; and
12-13 (2) a person whom the applicant knows to hold a power
12-14 of attorney signed by the proposed ward.
12-15 (f) A person other than the proposed ward who is entitled to
12-16 receive notice or personal service of citation under Subsections
12-17 (d) and (e) of this section may, in person or by attorney ad litem,
12-18 by writing filed with the clerk, waive the receipt of notice or the
12-19 issuance and personal service of citation.
12-20 (g) The court may not act on an application for the creation
12-21 of a guardianship until the Monday following the expiration of the
12-22 10-day period beginning the date service of notice and citation has
12-23 been made as provided by this section.
12-24 Sec. 634. SERVICE ON ATTORNEY. If an attorney has entered
12-25 an appearance on record for a party in a guardianship proceeding, a
12-26 citation or notice required to be served on the party shall be
12-27 served on the attorney. Service on the attorney of record is in
12-28 lieu of service on the party for whom the attorney appears. Except
12-29 as provided by Section 632(f) of this code, an attorney ad litem
12-30 may not waive personal service of citation. A notice served on an
12-31 attorney under this section may be served by registered or
12-32 certified mail or by delivery to the attorney in person. A party
12-33 to the proceeding or the party's attorney of record, an appropriate
12-34 sheriff or constable, or another person who is competent to testify
12-35 may serve notice or citation to an attorney under this section. A
12-36 written statement by an attorney of record, the return of the
12-37 officer, or the affidavit of a person that shows service is prima
12-38 facie evidence of the fact of service.
12-39 Sec. 635. WAIVER OF NOTICE. A competent person who is
12-40 interested in a hearing in a guardianship proceeding, in person or
12-41 by attorney, may waive in writing notice of the hearing. A consul
12-42 or other representative of a foreign government, whose appearance
12-43 has been entered as provided by law on behalf of a person residing
12-44 in a foreign country, may waive notice on behalf of the person. A
12-45 person who submits to the jurisdiction of the court in a hearing is
12-46 deemed to have waived notice of the hearing.
12-47 Sec. 636. NOTICES TO VETERANS ADMINISTRATION BY GUARDIANS.
12-48 When an annual or other account of funds, or an application for the
12-49 expenditure of or investment of funds is filed by a guardian whose
12-50 ward is a beneficiary of the Veterans Administration, or when a
12-51 claim against the estate of a ward who is a beneficiary of the
12-52 Veterans Administration is filed, the court shall set a date for
12-53 the hearing of the account, application, petition, or claim to be
12-54 held not less than 20 days from the date of the filing of the
12-55 account, application, petition, or claim. The clerk of the court
12-56 in which the account, application, petition, or claim is filed
12-57 shall give notice of the hearing to the office of Veterans
12-58 Administration in whose territory the court is located of the
12-59 hearing by mailing to the office a certified copy of the account,
12-60 application, petition, or claim not less than 15 days before the
12-61 hearing date. An office of Veterans Administration, through its
12-62 attorney, may waive the service of notice and the time within which
12-63 a hearing may be had in those cases. The account, application,
12-64 petition, or claim shall be filed in duplicate, and the clerk of
12-65 the court is entitled to a fee of 25 cents, taxable against the
12-66 estate, for certifying the copy of the account, application,
12-67 petition, or claim. The clerk shall mail to the office of the
12-68 Veterans Administration the certified copy. If not filed in
12-69 duplicate, the clerk shall be entitled to an additional fee of 15
12-70 cents per 100 words for making a copy of the account, application,
13-1 petition, or claim. The additional copying costs shall be taxed
13-2 and collected from the guardian and may not be charged to the
13-3 ward's estate.
13-4 SUBPART E. TRIAL AND HEARING MATTERS
13-5 Sec. 641. DEFECTS IN PLEADING. A court may not invalidate a
13-6 pleading in a guardianship matter or an order based on the pleading
13-7 based on a defect of form or substance in the pleading, unless the
13-8 defect has been timely objected to and called to the attention of
13-9 the court in which the proceeding was or is pending.
13-10 Sec. 642. STANDING TO COMMENCE OR CONTEST PROCEEDING.
13-11 (a) Except as provided by Subsection (b) of this section, any
13-12 person has the right to commence any guardianship proceeding or to
13-13 appear and contest any guardianship proceeding or the appointment
13-14 of a particular person as guardian.
13-15 (b) A person who has an interest that is adverse to a
13-16 proposed ward or incapacitated person may not:
13-17 (1) file an application to create a guardianship for
13-18 the proposed ward or incapacitated person;
13-19 (2) contest the creation of a guardianship for the
13-20 proposed ward or incapacitated person; or
13-21 (3) contest the appointment of a person as a guardian
13-22 of the person or estate, or both, of the proposed ward or
13-23 incapacitated person.
13-24 Sec. 643. TRIAL BY JURY. A party in a contested
13-25 guardianship proceeding is entitled, on request, to a jury trial.
13-26 Sec. 644. HEARING BY SUBMISSION. (a) A court may consider
13-27 by submission a motion or application filed under this chapter
13-28 unless:
13-29 (1) the proceeding is contested;
13-30 (2) the motion or application is superseded by local
13-31 rules; or
13-32 (3) the proceeding is an application for the
13-33 appointment of a guardian.
13-34 (b) A motion or application that a court may consider under
13-35 submission must be accompanied by a notice of the filing of the
13-36 motion or application that contains the date the motion or
13-37 application is to be submitted to the court. The time for notice
13-38 provided under this subsection may not be less than the time
13-39 otherwise prescribed by law for notice of other motions or
13-40 applications filed with the court.
13-41 (c) Without court approval, a motion or application that a
13-42 court may consider under submission may not be submitted to the
13-43 court before the 10th day after the date the motion or application
13-44 was filed.
13-45 (d) A motion or application must be submitted to the court
13-46 for a ruling on the date of submission that is contained in the
13-47 notice of submission under Subsection (b) of this section or on a
13-48 later date that is approved by the court.
13-49 (e) Without court approval, a response to a motion or
13-50 application that a court may consider under submission must be in
13-51 writing and must be filed before the second business day before the
13-52 date of submission.
13-53 (f) On the date of submission or another date that is
13-54 approved by the court, the court shall schedule a hearing for a
13-55 motion or application that a court may consider under submission
13-56 only if a response to the motion or application is filed by a
13-57 person interested in the guardianship who:
13-58 (1) contests the relief sought in the motion or
13-59 application;
13-60 (2) requests to be present at the hearing; or
13-61 (3) requests oral argument on the person's exceptions
13-62 to the motion or application.
13-63 (g) The burden of proof at a hearing on a motion or
13-64 application that is being considered by the court on submission is
13-65 on the party who is seeking relief under the motion or application.
13-66 (h) The court may consider a person's failure to file a
13-67 response to a motion or application that may be considered on
13-68 submission as a representation that the person does not oppose the
13-69 motion or application.
13-70 (i) A person's request for oral argument is not a response
14-1 to a motion or application under this section.
14-2 (j) The court, on its own motion, may order oral argument on
14-3 a motion or application that may be considered by submission.
14-4 Sec. 645. GUARDIANS AD LITEM. (a) The judge may appoint a
14-5 guardian ad litem to represent the interests of an incapacitated
14-6 person in a guardianship proceeding.
14-7 (b) A guardian ad litem is entitled to reasonable
14-8 compensation for services in the amount set by the court to be
14-9 taxed as costs in the proceeding.
14-10 (c) A guardian ad litem is an officer of the court. The
14-11 guardian ad litem shall protect the incapacitated person in a
14-12 manner that will enable the court to determine what action will be
14-13 in the best interests of the incapacitated person.
14-14 (d) If a guardian ad litem is appointed under Section 681(4)
14-15 of this code, the fees and expenses of the guardian ad litem are
14-16 costs of the litigation proceeding that made the appointment
14-17 necessary.
14-18 (e) In the interest of judicial economy, the court may
14-19 appoint as guardian ad litem under Section 681(4) of this code the
14-20 person who has been appointed attorney ad litem under Section 646
14-21 of this code or the person who is serving as an ad litem for the
14-22 benefit of the ward in any other proceeding.
14-23 Sec. 646. APPOINTMENT OF ATTORNEY AD LITEM AND INTERPRETER.
14-24 (a) In a proceeding under this chapter for the appointment of a
14-25 guardian for a person other than a missing person, the court shall
14-26 appoint an attorney ad litem to represent the interests of the
14-27 proposed ward. The attorney shall be supplied with copies of all
14-28 of the current records in the case and may have access to all of
14-29 the proposed ward's relevant medical, psychological, and
14-30 intellectual testing records.
14-31 (b) To be eligible for appointment as an attorney ad litem,
14-32 a person must be certified by the State Bar of Texas as having
14-33 successfully completed a course of study in guardianship law and
14-34 procedure sponsored by the state bar.
14-35 (c) For certification under Subsection (b) of this section,
14-36 the state bar may not require more than four hours of credit.
14-37 (d) A certificate issued under Subsection (b) of this
14-38 section expires on the second anniversary of the date the
14-39 certificate was issued. A person whose certificate has expired
14-40 must obtain a new certificate to be eligible for appointment as an
14-41 attorney ad litem. The applicant is not required to again complete
14-42 the course of study required by Subsection (b) of this section
14-43 unless the state bar determines that the course has changed
14-44 substantially since the person last completed the course.
14-45 (e) Subsections (b)-(d) of this section do not apply to a
14-46 person who served as attorney ad litem in a guardianship proceeding
14-47 before September 1, 1993.
14-48 (f) At the time of the appointment of the attorney ad litem,
14-49 the court shall also appoint a language interpreter or a sign
14-50 interpreter if necessary to ensure effective communication between
14-51 the proposed ward and the attorney.
14-52 Sec. 647. DUTIES OF ATTORNEY AD LITEM. (a) An attorney ad
14-53 litem appointed under Section 646 of this code to represent a
14-54 proposed ward shall, within a reasonable time before the hearing,
14-55 interview the proposed ward. To the greatest extent possible, the
14-56 attorney shall discuss with the proposed ward the law and facts of
14-57 the case, the proposed ward's legal options regarding disposition
14-58 of the case, and the grounds on which guardianship is sought.
14-59 (b) Before the hearing, the attorney shall review the
14-60 application for guardianship, certificates of current physical,
14-61 medical, and intellectual examinations, and all of the proposed
14-62 ward's relevant medical, psychological, and intellectual testing
14-63 records.
14-64 Sec. 648. COURT VISITOR PROGRAM. (a) Each statutory
14-65 probate court shall operate a court visitor program to assess the
14-66 conditions of wards and proposed wards. Another court that has
14-67 jurisdiction over a guardianship proceeding may operate a court
14-68 visitor program in accordance with the population needs and
14-69 financial abilities of the jurisdiction. A court that operates a
14-70 court visitor program shall use persons willing to serve without
15-1 compensation to the greatest extent possible.
15-2 (b) On request by any interested person, including a ward or
15-3 proposed ward, or on its own motion, and at any time before the
15-4 appointment of a guardian or during the pendency of a guardianship
15-5 of the person or estate, a court may appoint a court visitor to
15-6 evaluate the ward or proposed ward and provide a written report
15-7 that substantially complies with Subsection (c) of this section.
15-8 (c) A court visitor's report must include:
15-9 (1) a description of the nature and degree of capacity
15-10 and incapacity of the ward or proposed ward, including the medical
15-11 history of the ward or proposed ward, if reasonably available and
15-12 not waived by the court;
15-13 (2) a medical prognosis and a list of the treating
15-14 physicians of the ward or proposed ward, when appropriate;
15-15 (3) a description of the living conditions and
15-16 circumstances of the ward or proposed ward;
15-17 (4) a description of the social, intellectual,
15-18 physical, and educational condition of the ward or proposed ward;
15-19 (5) a statement that the court visitor has personally
15-20 visited or observed the ward or proposed ward;
15-21 (6) a statement of the date of the most recent visit
15-22 by the guardian, if one has been appointed;
15-23 (7) a recommendation as to any modifications needed in
15-24 the guardianship or proposed guardianship, including removal or
15-25 denial of the guardianship; and
15-26 (8) any other information required by the court.
15-27 (d) The court visitor shall file the report not later than
15-28 the 14th day after the date of the evaluation conducted by the
15-29 court visitor, and the court visitor making the report must swear,
15-30 under penalty of perjury, to its accuracy to the best of the court
15-31 visitor's knowledge and belief.
15-32 (e) A court visitor who has not expressed a willingness to
15-33 serve without compensation is entitled to reasonable compensation
15-34 for services in an amount set by the court and to be taxed as costs
15-35 in the proceeding.
15-36 Sec. 649. EVIDENCE. In a guardianship proceeding, the rules
15-37 relating to witnesses and evidence that govern in the district
15-38 court apply as far as practicable. If there is no opposing party
15-39 or attorney of record on whom to serve notice and copies of
15-40 interrogatories, service may be had by posting notice of the
15-41 intention to take depositions for a period of 10 days as provided
15-42 by this chapter in the provisions governing a posting of notice.
15-43 When notice by posting under this section is filed with the clerk,
15-44 a copy of the interrogatories shall also be filed. At the
15-45 expiration of the 10-day period, commission may issue for taking
15-46 the depositions and the judge may file cross-interrogatories if no
15-47 person appears.
15-48 Sec. 650. DECREES AND SIGNING OF MINUTES. A decision,
15-49 order, decree, or judgment of the court in a guardianship matter
15-50 must be rendered in open court, except in a case in which it is
15-51 otherwise expressly provided. The judge shall approve and sign the
15-52 guardianship minutes on the first day of each month. If the first
15-53 day of the month falls on a Saturday, Sunday, or legal holiday, the
15-54 judge's approval shall be entered on the preceding or succeeding
15-55 day.
15-56 Sec. 651. ENFORCEMENT OF ORDERS. The judge may enforce
15-57 obedience to an order entered against a guardian by attachment and
15-58 imprisonment. An imprisonment of a guardian may not exceed three
15-59 days for any one offense, unless expressly provided otherwise in
15-60 this chapter.
15-61 SUBPART F. POST-TRIAL MATTERS
15-62 Sec. 653. EXECUTION. An execution in a guardianship matter
15-63 shall be directed "To any sheriff or any constable within the State
15-64 of Texas," made returnable in 60 days, and attested and signed by
15-65 the clerk officially under the seal of the court. A proceeding
15-66 under an execution in a guardianship matter is governed so far as
15-67 applicable by the laws regulating a proceeding under an execution
15-68 issued from the district court. An execution directed to the
15-69 sheriff or a constable of a specific county in this state may not
15-70 be held defective if the execution was properly executed within the
16-1 county by the officer to whom the direction for execution was
16-2 given.
16-3 Sec. 654. ATTACHMENT FOR PROPERTY. When a complaint in
16-4 writing and under oath that the guardian is about to remove the
16-5 estate or any part of the estate beyond the limits of the state is
16-6 made to the judge by a person interested in the estate of a minor
16-7 or other incapacitated person, the judge may order a writ to issue,
16-8 directed "To any sheriff or any constable within the State of
16-9 Texas," commanding the sheriff or constable to seize the estate or
16-10 any part of the estate and to hold the estate subject to further
16-11 court order. The judge may not issue a writ unless the complainant
16-12 gives a bond, in the sum the judge requires, payable to the
16-13 guardian of the estate and conditioned on payment of all damages
16-14 and costs that shall be recovered for a wrongful suit out of the
16-15 writ. A writ of attachment directed to the sheriff or a constable
16-16 of a specific county in this state is not defective if the writ was
16-17 properly executed within the county by the officer to whom the
16-18 direction to seize the estate was given.
16-19 Sec. 655. GUARDIAN TO SERVE PENDING APPEAL OF APPOINTMENT.
16-20 Pending an appeal from an order or judgment appointing a guardian,
16-21 an appointee shall continue to act as guardian and shall continue
16-22 the prosecution of a pending suit in favor of the guardianship.
16-23 Sec. 656. APPEAL BOND OF GUARDIAN. When a guardian appeals,
16-24 a bond is not required, unless the appeal personally concerns the
16-25 guardian, in which case the guardian must give the bond.
16-26 Sec. 657. BILL OF REVIEW. A person interested, including a
16-27 ward, by bill of review filed in the court in which a guardianship
16-28 proceeding took place, may have a decision, order, or judgment
16-29 rendered by the court, revised and corrected if an error is shown
16-30 on the decision, order, or judgment. A process or action under the
16-31 decision, order, or judgment is not stayed except by writ of
16-32 injunction. A bill of review may not be filed after two years have
16-33 elapsed from the date of the decision, order, or judgment. A
16-34 person with a disability has two years after the removal of the
16-35 person's respective disability to apply for a bill of review.
16-36 SUBPART G. LETTERS OF GUARDIANSHIP
16-37 Sec. 659. ISSUANCE OF LETTERS OF GUARDIANSHIP. (a) When a
16-38 person who is appointed guardian has qualified by taking the oath
16-39 and giving any bond required by law, the clerk shall issue to the
16-40 guardian a certificate under seal, stating the fact of the
16-41 appointment, of the qualification, and the date of the appointment
16-42 and qualification. The certificate issued by the clerk constitutes
16-43 letters of guardianship. The order of the court appointing the
16-44 guardian is effective on the issuance of letters of guardianship.
16-45 The order is evidence of the authority of the guardian to act
16-46 within the scope of the powers and duties set forth in the order.
16-47 (b) Letters of guardianship expire one year and 120 days
16-48 after the date of issuance unless renewed.
16-49 (c) The clerk shall renew letters of guardianship on the
16-50 receipt and approval by the court of the guardian's annual
16-51 accounting. If the guardian's annual accounting is disapproved,
16-52 the clerk may not issue further letters of guardianship to that
16-53 guardian relating to the ward or the ward's estate unless ordered
16-54 by the court.
16-55 Sec. 660. LETTERS OR CERTIFICATE MADE EVIDENCE. Letters of
16-56 guardianship or a certificate under seal of the clerk of the court
16-57 that granted the letters issued under Section 659 of this code is
16-58 sufficient evidence of the appointment and qualification of the
16-59 guardian and of the date of qualification.
16-60 Sec. 661. ISSUANCE OF NEW LETTERS. When letters of
16-61 guardianship have been destroyed or lost, the clerk shall issue new
16-62 letters that have the same force and effect as the original
16-63 letters. The clerk shall also issue any number of letters on
16-64 request of the person who holds the letters.
16-65 Sec. 662. RIGHTS OF THIRD PERSONS DEALING WITH GUARDIAN.
16-66 When a guardian who has qualified performs any act as guardian that
16-67 is in conformity with the guardian's authority and the law, the
16-68 guardian's act continues to be valid for all intents and purposes
16-69 in regard to the rights of an innocent purchaser of the property of
16-70 the guardianship estate who purchased the property from the
17-1 guardian for a valuable consideration, in good faith, and without
17-2 notice of any illegality in the title to the property, even if the
17-3 guardian's act or the authority under which the act was performed
17-4 may later be set aside, annulled, or declared invalid.
17-5 Sec. 663. VALIDATION OF CERTAIN LETTERS OF GUARDIANSHIP.
17-6 All presently existing letters of guardianship issued to a
17-7 nonresident guardian, with or without the procedure provided in
17-8 this subpart, in whole or in part, and with or without a notice or
17-9 citation required of resident guardians, are validated as of each
17-10 letter's date, insofar as the absence of the procedure, notice, or
17-11 citations is concerned. An otherwise valid conveyance, mineral
17-12 lease, or other act of a nonresident guardian qualified and acting
17-13 in connection with the letters of guardianship under supporting
17-14 orders of a county or probate court of this state are validated.
17-15 This section does not apply to any letters, conveyance, lease, or
17-16 other act of a nonresident guardian under this section if the
17-17 absence of the procedure, notice, or citation involving the
17-18 letters, conveyance, lease, or other act of the nonresident
17-19 guardian is an issue in a lawsuit pending in this state on
17-20 September 1, 1993.
17-21 SUBPART H. COMPENSATION, EXPENSES, AND COURT COSTS
17-22 Sec. 665. COMPENSATION OF GUARDIAN. (a) The court may
17-23 authorize compensation for a guardian serving as guardian of the
17-24 person alone from available funds of the ward's estate. The court
17-25 shall set the compensation in an amount not exceeding five percent
17-26 of the ward's income. In determining whether to authorize
17-27 compensation for a guardian under this section, the court shall
17-28 consider the ward's monthly income from all sources and whether the
17-29 ward receives medical assistance under Chapter 32, Human Resources
17-30 Code.
17-31 (b) The guardian of the estate is entitled to a fee of five
17-32 percent of the gross income of the ward's estate and five percent
17-33 of all money paid out of the estate on a court finding that the
17-34 guardian has taken care of and managed the estate in compliance
17-35 with the standards of this chapter. In this section, the term
17-36 "money paid out" does not include any money loaned, invested, or
17-37 paid over on the settlement of the guardianship. If the fee is an
17-38 unreasonably low amount, the court may authorize reasonable
17-39 compensation to a guardian for services as guardian of the estate.
17-40 The court, on application of an interested person or on its own
17-41 motion, may deny a fee authorized under this section in whole, or
17-42 in part, if:
17-43 (1) the court finds that the guardian has not
17-44 adequately performed the duties required of the guardian under this
17-45 chapter; or
17-46 (2) the guardian has been removed for cause.
17-47 Sec. 666. EXPENSES ALLOWED. A guardian is entitled to be
17-48 reimbursed from the guardianship estate for all necessary and
17-49 reasonable expenses incurred in performing any duty as a guardian.
17-50 Sec. 667. EXPENSE ACCOUNT. All expense charges shall be:
17-51 (1) in writing, showing specifically each item of
17-52 expense and the date of the expense;
17-53 (2) verified by affidavit of the guardian;
17-54 (3) filed with the clerk and entered on the claim
17-55 docket; and
17-56 (4) acted on by the court in the same manner as other
17-57 claims against the guardianship estate.
17-58 Sec. 668. COSTS ADJUDGED AGAINST GUARDIAN. When costs are
17-59 incurred because a guardian neglects to perform a required duty or
17-60 if a guardian is removed for cause, the guardian and the sureties
17-61 on the guardian's bond are liable for:
17-62 (1) costs of removal and other additional costs
17-63 incurred that are not authorized expenditures under this chapter;
17-64 and
17-65 (2) reasonable attorney's fees incurred in removing
17-66 the guardian or in obtaining compliance regarding any statutory
17-67 duty the guardian has neglected.
17-68 Sec. 669. COSTS AGAINST GUARDIANSHIP. In a guardianship
17-69 matter, the cost of the proceeding, including the cost of the
17-70 guardian ad litem or court visitor, shall be paid out of the
18-1 guardianship estate, or, if the estate is insufficient to pay for
18-2 the cost of the proceeding, the cost of the proceeding shall be
18-3 paid out of the county treasury, and the judgment of the court
18-4 shall be issued accordingly.
18-5 SUBPART I. DUTY AND RESPONSIBILITY OF COURT
18-6 Sec. 671. JUDGE'S DUTY. (a) The court shall use reasonable
18-7 diligence to determine whether a guardian is performing all of the
18-8 duties required of the guardian that pertain to the guardian's
18-9 ward.
18-10 (b) The judge, at least annually, shall examine the
18-11 well-being of each ward of the court and the solvency of the bonds
18-12 of the guardians of the estates.
18-13 (c) If after examining the solvency of a guardian's bond
18-14 under this section a judge determines that the guardian's bond is
18-15 not sufficient to protect the ward or the ward's estate, the judge
18-16 shall require the guardian to execute a new bond.
18-17 (d) The judge shall notify the guardian and the sureties on
18-18 the bond as provided by law. If damage or loss results to a
18-19 guardianship or ward because of gross neglect of the judge to use
18-20 reasonable diligence in the performance of the judge's duty under
18-21 this section, the judge shall be liable on the judge's bond to
18-22 those damaged by the judge's neglect.
18-23 Sec. 672. ANNUAL DETERMINATION AS TO WHETHER GUARDIANSHIP
18-24 SHOULD BE CONTINUED, MODIFIED, OR TERMINATED. (a) A court in
18-25 which a guardianship proceeding is pending shall review annually a
18-26 guardianship that does not give a guardian full authority over an
18-27 incapacitated person to determine whether the guardianship should
18-28 be continued, modified, or terminated.
18-29 (b) In reviewing a guardianship as provided by Subsection
18-30 (a) of this section, a statutory probate court shall:
18-31 (1) review a report prepared by a court visitor under
18-32 Section 648 of this code; or
18-33 (2) conduct a hearing if necessary.
18-34 (c) In reviewing a guardianship as provided by Subsection
18-35 (a) of this section, a court that is not a statutory probate court
18-36 may use any appropriate method determined by the court according to
18-37 the court's caseload and the resources available to the court.
18-38 (d) A determination under this section must be in writing
18-39 and filed with the clerk.
18-40 SUBPART J. LIABILITY OF GUARDIAN FOR CONDUCT OF WARD
18-41 Sec. 673. LIABILITY. A person is not liable to a third
18-42 person solely because the person has been appointed guardian of a
18-43 ward under this chapter.
18-44 PART 3. APPOINTMENT AND
18-45 QUALIFICATION OF
18-46 GUARDIANS
18-47 SUBPART A. APPOINTMENT
18-48 Sec. 675. RIGHTS AND POWERS RETAINED BY WARD. An
18-49 incapacitated person for whom a guardian is appointed retains all
18-50 legal and civil rights and powers except those designated by court
18-51 order as legal disabilities by virtue of having been specifically
18-52 granted to the guardian.
18-53 Sec. 676. GUARDIANS OF MINORS. (a) Except as provided by
18-54 Section 670 of this code, the selection of a guardian for a minor
18-55 is governed by this section.
18-56 (b) If the parents live together, both parents are the
18-57 natural guardians of the person of the minor children by the
18-58 marriage, and one of the parents is entitled to be appointed
18-59 guardian of the children's estates. If the parents disagree as to
18-60 which parent should be appointed, the court shall make the
18-61 appointment on the basis of which parent is better qualified to
18-62 serve in that capacity. If one parent is dead, the survivor is the
18-63 natural guardian of the person of the minor children and is
18-64 entitled to be appointed guardian of their estates. The rights of
18-65 parents who do not live together are equal, and the guardianship of
18-66 their minor children shall be assigned to one or the other,
18-67 considering only the best interests of the children.
18-68 (c) In appointing a guardian for a minor orphan:
18-69 (1) if the last surviving parent did not appoint a
18-70 guardian, the nearest ascendant in the direct line of the minor is
19-1 entitled to guardianship of both the person and the estate of the
19-2 minor;
19-3 (2) if more than one ascendant exists in the same
19-4 degree in the direct line, one ascendant shall be appointed,
19-5 according to circumstances and considering the best interests of
19-6 the minor;
19-7 (3) if the minor has no ascendant in the direct line,
19-8 the nearest of kin shall be appointed, and if there are two or more
19-9 persons in the same degree of kinship, one shall be appointed,
19-10 according to circumstances and considering the best interests of
19-11 the minor; and
19-12 (4) if no relative of the minor is eligible to be
19-13 guardian, or if no eligible person applies to be guardian, the
19-14 court shall appoint a qualified person as guardian.
19-15 (d) The surviving parent of a minor may by will or written
19-16 declaration appoint any eligible person to be guardian of the
19-17 person of the parent's minor children after the death of the
19-18 parent. On compliance with this code, an eligible person is also
19-19 entitled to be appointed guardian of the children's estates after
19-20 the death of the parent.
19-21 Sec. 677. GUARDIANS OF PERSONS OTHER THAN MINORS. The court
19-22 shall appoint a guardian for a person other than a minor according
19-23 to the circumstances and considering the best interests of the
19-24 ward. If the court finds that two or more eligible persons are
19-25 equally entitled to be appointed guardian:
19-26 (1) the ward's spouse is entitled to the guardianship
19-27 in preference to any other person if the spouse is one of the
19-28 eligible persons;
19-29 (2) the eligible person nearest of kin to the ward is
19-30 entitled to the guardianship if the ward's spouse is not one of the
19-31 eligible persons; or
19-32 (3) the court shall appoint the eligible person who is
19-33 best qualified to serve as guardian if:
19-34 (A) the persons entitled to serve under
19-35 Subdivisions (1) and (2) of this section refuse to serve;
19-36 (B) two or more persons entitled to serve under
19-37 Subdivision (2) of this section are related in the same degree of
19-38 kinship to the ward; or
19-39 (C) neither the ward's spouse or any person
19-40 related to the ward is an eligible person.
19-41 Sec. 678. PRESUMPTION CONCERNING BEST INTEREST. It is
19-42 presumed not to be in the best interests of a ward to appoint a
19-43 person as guardian of the ward if the person has been finally
19-44 convicted of any sexual offense, sexual assault, aggravated
19-45 assault, aggravated sexual assault, injury to a child, abandoning
19-46 or endangering a child, or incest.
19-47 Sec. 679. DESIGNATION OF GUARDIAN BEFORE NEED ARISES.
19-48 (a) A person other than an incapacitated person may designate by a
19-49 written declaration persons to serve as guardian of the person of
19-50 the declarant or the estate of the declarant if the declarant
19-51 becomes incapacitated. The declaration must be attested to by at
19-52 least two credible witnesses 14 years of age or older who are not
19-53 named as guardian or alternate guardian in the declaration.
19-54 (b) A declarant may, in the declaration, disqualify named
19-55 persons from serving as guardian of the declarant's person or
19-56 estate, and the persons named may not be appointed guardian under
19-57 any circumstances.
19-58 (c) The declaration must have attached a self-proving
19-59 affidavit signed by the declarant and the witnesses attesting to
19-60 the competence of the declarant and the execution of the
19-61 declaration. A properly executed and witnessed declaration and
19-62 affidavit are prima facie evidence that the declarant was competent
19-63 at the time the declarant executed the declaration and that the
19-64 guardian named in the declaration would serve the best interests of
19-65 the ward.
19-66 (d) The declaration and affidavit may be filed with the
19-67 court at any time after the application for appointment of a
19-68 guardian is filed and before a guardian is appointed. Unless the
19-69 court finds that the person designated in the declaration to serve
19-70 as guardian is disqualified or would not serve the best interests
20-1 of the ward, the court shall appoint the person as guardian in
20-2 preference to those otherwise entitled to serve as guardian under
20-3 this code. If the designated guardian does not qualify, is dead,
20-4 refuses to serve, resigns, or dies after being appointed guardian,
20-5 or is otherwise unavailable to serve as guardian, the court shall
20-6 appoint the next eligible designated alternate guardian named in
20-7 the declaration. If the guardian and all alternate guardians do
20-8 not qualify, are dead, refuse to serve, or later die or resign, the
20-9 court shall appoint another person to serve as otherwise provided
20-10 by this code.
20-11 (e) The declarant may revoke a declaration in any manner
20-12 provided for the revocation of a will under Section 63 of this
20-13 code, including the subsequent reexecution of the declaration in
20-14 the manner required for the original declaration.
20-15 (f) If a declarant designates the declarant's spouse to
20-16 serve as guardian under this section, and the declarant is
20-17 subsequently divorced from that spouse before a guardian is
20-18 appointed, the provision of the declaration designating the spouse
20-19 has no effect.
20-20 (g) A declaration and affidavit may be in any form adequate
20-21 to clearly indicate the declarant's intention to designate a
20-22 guardian. The following forms may, but need not, be used:
20-23 DECLARATION OF GUARDIAN IN THE EVENT OF
20-24 LATER INCAPACITY OR NEED OF GUARDIAN
20-25 I, _____________, make this Declaration of Guardian, to
20-26 operate if the need for a guardian for me later arises.
20-27 1. I designate ____________ to serve as guardian of my
20-28 person, ____________ as first alternate guardian of my person,
20-29 ________________ as second alternate guardian of my person, and
20-30 ____________ as third alternate guardian of my person.
20-31 2. I designate ____________ to serve as guardian of my
20-32 estate, ____________ as first alternate guardian of my estate,
20-33 ____________ as second alternate guardian of my estate, and
20-34 ____________ as third alternate guardian of my estate.
20-35 3. If any guardian or alternate guardian dies, does not
20-36 qualify, or resigns, the next named alternate guardian becomes my
20-37 guardian.
20-38 4. I expressly disqualify the following persons from serving
20-39 as guardian of my person: ____________, ____________, and
20-40 ____________.
20-41 5. I expressly disqualify the following persons from serving
20-42 as guardian of my estate: ____________, ____________, and
20-43 ____________.
20-44 Signed this ____ day of __________, 19__.
20-45 ___________________
20-46 Declarant
20-47 ___________________ ___________________
20-48 Witness Witness
20-49 SELF-PROVING AFFIDAVIT
20-50 Before me, the undersigned authority, on this date personally
20-51 appeared the declarant, and ____________ and ____________ as
20-52 witnesses, and all being duly sworn, the declarant said that the
20-53 above instrument was his or her Declaration of Guardian and that
20-54 the declarant had made and executed it for the purposes expressed
20-55 in the declaration. The witnesses declared to me that they are
20-56 each 14 years of age or older, that they saw the declarant sign the
20-57 declaration, that they signed the declaration as witnesses, and
20-58 that the declarant appeared to them to be of sound mind.
20-59 ___________________
20-60 Declarant
20-61 ___________________ ____________________
20-62 Affiant Affiant
20-63 Subscribed and sworn to before me by the above named
20-64 declarant and affiants on this ____ day of __________, 19__.
20-65 ________________________
20-66 Notary Public in and for
20-67 the State of Texas
20-68 My Commission expires:
20-69 ________________________
20-70 Sec. 680. SELECTION OF GUARDIAN BY MINOR. (a) When an
21-1 application is filed for the guardianship of the person or estate,
21-2 or both, of a minor at least 14 years of age, the minor, by writing
21-3 filed with the clerk, may choose the guardian if the court approves
21-4 the choice and finds that the choice is in the best interest of the
21-5 minor.
21-6 (b) A minor at least 14 years of age may select another
21-7 guardian of either the minor's person or estate, or both, if the
21-8 minor has a guardian appointed by the court or the minor has a
21-9 guardian appointed by will or written declaration of the parent of
21-10 the minor and that guardian dies, resigns, or is removed from
21-11 guardianship. If the court is satisfied that the person selected
21-12 is suitable and competent and that the appointment of the person is
21-13 in the best interest of the minor, it shall make the appointment
21-14 and revoke the letters of guardianship of the former guardian. The
21-15 minor shall make the selection by filing an application in open
21-16 court in person or by attorney.
21-17 Sec. 681. PERSONS INELIGIBLE TO BE GUARDIANS. A person may
21-18 not be appointed guardian if the person is:
21-19 (1) a minor;
21-20 (2) a person whose conduct is notoriously bad;
21-21 (3) an incapacitated person;
21-22 (4) a person who is a party or whose parent is a party
21-23 to a lawsuit concerning or affecting the welfare of the proposed
21-24 ward, unless the court:
21-25 (A) determines that the lawsuit claim of the
21-26 person who has applied to be appointed guardian is not in conflict
21-27 with the lawsuit claim of the proposed ward;
21-28 (B) appoints a guardian ad litem to represent
21-29 the interests of the proposed ward throughout the litigation of the
21-30 ward's lawsuit claim;
21-31 (5) a person indebted to the proposed ward unless the
21-32 person pays the debt before appointment;
21-33 (6) a person asserting a claim adverse to the proposed
21-34 ward or the proposed ward's property, real or personal;
21-35 (7) a person who, because of inexperience, lack of
21-36 education, or other good reason, is incapable of properly and
21-37 prudently managing and controlling the ward or the ward's estate;
21-38 (8) a person, institution, or corporation found
21-39 unsuitable by the court;
21-40 (9) a person disqualified in a declaration made under
21-41 Section 679 of this code; or
21-42 (10) a nonresident person who has not filed with the
21-43 court the name of a resident agent to accept service of process in
21-44 all actions or proceedings relating to the guardianship.
21-45 Sec. 682. APPLICATION; CONTENTS. Any person may commence a
21-46 proceeding for the appointment of a guardian by filing a written
21-47 application in a court having jurisdiction and venue. The
21-48 application must be sworn to by the applicant and state:
21-49 (1) the name, sex, date of birth, and address of the
21-50 proposed ward;
21-51 (2) the name, relationship, and address of the person
21-52 the applicant desires to have appointed as guardian;
21-53 (3) the social security number of the proposed ward
21-54 and of the person the applicant desires to have appointed as
21-55 guardian;
21-56 (4) whether guardianship of the person or estate, or
21-57 both, is sought;
21-58 (5) the nature and degree of the alleged incapacity,
21-59 the specific areas of protection and assistance requested, and the
21-60 limitation of rights requested to be included in the court's order
21-61 of appointment;
21-62 (6) the facts requiring that a guardian be appointed
21-63 and the interest of the applicant in the appointment;
21-64 (7) the nature and description of any guardianship of
21-65 any kind existing for the proposed ward in this or any other state;
21-66 (8) the name and address of any person or institution
21-67 having the care and custody of the proposed ward;
21-68 (9) the approximate value and description of the
21-69 proposed ward's property, including any compensation, pension,
21-70 insurance, or allowance to which the proposed ward may be entitled;
22-1 (10) the requested term, if known, of the
22-2 guardianship;
22-3 (11) the name and address of any person whom the
22-4 applicant knows to hold a power of attorney signed by the proposed
22-5 ward and a description of the type of power of attorney;
22-6 (12) if the proposed ward is a minor, the names of the
22-7 parents and next of kin of the proposed ward and whether either or
22-8 both of the parents are deceased;
22-9 (13) if the proposed ward is a minor, whether the
22-10 minor was the subject of a legal or conservatorship proceeding
22-11 within the preceding two-year period and, if so, the court
22-12 involved, the nature of the proceeding, and the final disposition,
22-13 if any, of the proceeding;
22-14 (14) if the proposed ward is 60 years of age or older,
22-15 the names and addresses, to the best of the applicant's knowledge,
22-16 of the proposed ward's spouse, siblings, and children, or, if there
22-17 is no spouse, sibling, or child, the names and addresses of the
22-18 proposed ward's next of kin;
22-19 (15) if the proposed ward is a missing person:
22-20 (A) the last known residence of the missing
22-21 person;
22-22 (B) the name of the executive department of the
22-23 United States reporting the proposed ward as a missing person, the
22-24 date of the report, and the last known whereabouts of the missing
22-25 person; and
22-26 (C) the names and addresses of the missing
22-27 person's spouse, children, and parents, or, if there is no spouse,
22-28 child, or parent, the names and addresses of the missing person's
22-29 next of kin;
22-30 (16) facts showing that the court has venue over the
22-31 proceeding; and
22-32 (17) if applicable, that the person whom the applicant
22-33 desires to have appointed as a guardian is a private professional
22-34 guardian who has complied with the requirements of Section 126 of
22-35 this code.
22-36 Sec. 683. COURT'S INITIATION OF GUARDIANSHIP PROCEEDINGS.
22-37 If a court has probable cause to believe that a person domiciled or
22-38 found in the county in which the court is located is an
22-39 incapacitated person, and the person does not have a guardian in
22-40 this state, the court shall appoint a guardian ad litem or court
22-41 investigator to investigate and file an application for the
22-42 appointment of a guardian of the person or estate, or both, of the
22-43 person believed to be incapacitated.
22-44 Sec. 684. FINDINGS REQUIRED. (a) Before appointing a
22-45 guardian, the court must find by clear and convincing evidence
22-46 that:
22-47 (1) the proposed ward is an incapacitated person;
22-48 (2) the court has venue of the case;
22-49 (3) the person to be appointed guardian is eligible to
22-50 act as guardian and is entitled to appointment, or, if no eligible
22-51 person entitled to appointment applies, the person appointed is a
22-52 proper person to act as guardian;
22-53 (4) the rights of persons or property will be
22-54 protected by the appointment of a guardian;
22-55 (5) if a guardian is appointed for a minor, the
22-56 guardianship is not created for the primary purpose of enabling the
22-57 minor to establish residency for enrollment in a school or school
22-58 district for which the minor is not otherwise eligible for
22-59 enrollment; and
22-60 (6) if the guardian is appointed for a missing person,
22-61 the person was reported missing by an executive department of the
22-62 United States at least six months earlier than the date of the
22-63 filing of the application and currently is missing.
22-64 (b) The court may not grant an application to create a
22-65 guardianship unless the applicant proves each element required by
22-66 this code. A determination of incapacity of an adult proposed
22-67 ward, other than a missing person or a person who must have a
22-68 guardian appointed to receive funds due the person from any
22-69 governmental source, must be evidenced by recurring acts or
22-70 occurrences within the preceding six-month period and not by
23-1 isolated instances of negligence or bad judgment.
23-2 (c) A court may not appoint a guardian of the estate of a
23-3 minor when a payment of claims is made under Section 887 of this
23-4 code.
23-5 (d) A certificate of the executive head or a representative
23-6 of the bureau, department, or agency of the government, to the
23-7 effect that the appointment of a guardian is a condition precedent
23-8 to the payment of any funds due the proposed ward from that
23-9 governmental entity, is prima facie evidence of the necessity for
23-10 the appointment of a guardian.
23-11 Sec. 685. HEARING FOR APPOINTMENT OF GUARDIAN; RIGHT TO JURY
23-12 TRIAL. (a) A proposed ward other than a missing person must be
23-13 present at a hearing to appoint a guardian unless the court, on the
23-14 record, determines that a personal appearance is not necessary.
23-15 The court may close the hearing if the proposed ward or the
23-16 proposed ward's counsel requests a closed hearing.
23-17 (b) The proposed ward is entitled, on request, to a jury
23-18 trial.
23-19 (c) At the hearing, the court shall:
23-20 (1) inquire into the ability of any allegedly
23-21 incapacitated adult person to feed, clothe, and shelter himself or
23-22 herself, to care for the individual's own physical health, and to
23-23 manage the individual's property or financial affairs;
23-24 (2) ascertain the age of any proposed ward who is a
23-25 minor;
23-26 (3) inquire into the governmental reports for any
23-27 missing person or person who must have a guardian appointed to
23-28 receive funds due the person from any governmental source; and
23-29 (4) inquire into the qualifications, abilities, and
23-30 capabilities of the person seeking to be appointed guardian.
23-31 Sec. 686. USE OF RECORDS IN HEARING TO APPOINT GUARDIAN.
23-32 (a) Before a hearing may be held for the appointment of a
23-33 guardian, current and relevant medical, psychological, and
23-34 intellectual testing records of the proposed ward must be provided
23-35 to the attorney ad litem appointed to represent the proposed ward
23-36 unless:
23-37 (1) the proposed ward is a minor, a missing person, or
23-38 a person who must have a guardian appointed to receive funds due
23-39 the person from any governmental source; or
23-40 (2) the court makes a finding on the record that no
23-41 current or relevant records exist and examining the proposed ward
23-42 for the purpose of creating the records is impractical.
23-43 (b) Current medical, psychological, and intellectual testing
23-44 records are a sufficient basis for a determination of guardianship.
23-45 (c) The findings and recommendations contained in the
23-46 medical, psychological, and intellectual testing records are not
23-47 binding on the court.
23-48 Sec. 687. EXAMINATION AND REPORTS. (a) The court may not
23-49 grant an application to create a guardianship for an incapacitated
23-50 person unless the applicant presents to the court a written letter
23-51 or certificate from a physician licensed in this state that:
23-52 (1) states that, in the opinion of the physician, the
23-53 person for whom the appointment of a guardian is sought is
23-54 incapacitated; and
23-55 (2) generally describes the extent of the incapacity.
23-56 (b) If the court determines it is necessary, the court may
23-57 appoint the necessary physicians to examine the proposed ward. A
23-58 physician who examines the proposed ward shall make available to an
23-59 attorney ad litem appointed to represent the proposed ward, for
23-60 inspection, a report that:
23-61 (1) describes the nature and degree of incapacity,
23-62 including the medical history if reasonably available;
23-63 (2) provides a medical prognosis specifying the
23-64 estimated severity of the incapacity;
23-65 (3) states how or in what manner the proposed ward's
23-66 ability to make or communicate responsible decisions concerning
23-67 himself or herself is affected by the person's physical or mental
23-68 health;
23-69 (4) states whether any current medication affects the
23-70 demeanor of the proposed ward or the proposed ward's ability to
24-1 participate fully in a court proceeding;
24-2 (5) describes the precise physical and mental
24-3 conditions underlying a diagnosis of senility, if applicable; and
24-4 (6) includes any other information required by the
24-5 court.
24-6 (c) If the basis of the proposed ward's alleged incapacity
24-7 is mental retardation, the proposed ward shall be examined by a
24-8 physician or psychologist licensed in this state or certified by
24-9 the Texas Department of Mental Health and Mental Retardation to
24-10 perform the examination, unless there is written documentation
24-11 filed with the court that shows the proposed ward has been examined
24-12 according to the rules adopted by the department not earlier than
24-13 six months before the date of a hearing to appoint a guardian for
24-14 the proposed ward. The physician or psychologist shall conduct the
24-15 examination according to the rules adopted by the department and
24-16 shall submit written findings and recommendations to the court.
24-17 Sec. 688. PAYMENT FOR PROFESSIONAL SERVICES. The court
24-18 shall order the payment of a fee set by the court as compensation
24-19 to the attorneys, mental health professionals, and interpreters
24-20 appointed under Sections 646 and 687 of this code, as applicable,
24-21 to be taxed as costs in the case. If after examining the proposed
24-22 ward's assets the court determines the proposed ward is unable to
24-23 pay for services provided by an attorney, a mental health
24-24 professional, or an interpreter appointed under Sections 646 and
24-25 687 of this code, as applicable, the county is responsible for the
24-26 cost of those services.
24-27 Sec. 688A. COMPENSATION OF CERTAIN ATTORNEYS. (a) A court
24-28 that creates a guardianship for a ward under this chapter, on
24-29 request of a person who filed an application to be appointed
24-30 guardian of the proposed ward, may authorize compensation of an
24-31 attorney who represents the person at the application hearing from
24-32 available funds of the ward's estate regardless of whether that
24-33 person is appointed the ward's guardian.
24-34 (b) The court may not authorize compensation under this
24-35 section unless the court finds that the attorney acted in good
24-36 faith and for just cause in the attorney's representation of the
24-37 person who filed the application.
24-38 Sec. 689. PREFERENCE OF WARD. Before appointing a guardian,
24-39 the court shall make a reasonable effort to consider the
24-40 incapacitated person's preference of the person to be appointed
24-41 guardian and, to the extent not inconsistent with other provisions
24-42 of this chapter, shall give due consideration to the preference
24-43 indicated by the incapacitated person.
24-44 Sec. 690. ONLY ONE PERSON APPOINTED GUARDIAN. Only one
24-45 person may be appointed as guardian of the person or estate, but
24-46 one person may be appointed guardian of the person and another of
24-47 the estate, if it is to the advantage of the ward. Nothing in this
24-48 section prohibits the joint appointment of a husband and wife, or
24-49 of coguardians appointed under the laws of a jurisdiction other
24-50 than this state.
24-51 Sec. 691. AGENCY AS LAST RESORT. Except as a last resort,
24-52 the court may not appoint as guardian the Texas Department of
24-53 Mental Health and Mental Retardation, the Texas Department of Human
24-54 Services, a community mental health and mental retardation center,
24-55 or any other agency, public or private, that is directly providing
24-56 services to the incapacitated person.
24-57 Sec. 692. ORDER APPOINTING GUARDIAN. The order of the court
24-58 appointing a guardian must specify:
24-59 (1) the name of the person appointed;
24-60 (2) the name of the ward;
24-61 (3) whether the guardian is of the person or the
24-62 estate, or of both, of the ward;
24-63 (4) the amount of any bond required;
24-64 (5) if it is a guardianship of the estate and the
24-65 court deems an appraisal is necessary, one or more but not more
24-66 than three disinterested persons to appraise the estate and to
24-67 return the appraisement to the court; and
24-68 (6) that the clerk will issue letters of guardianship
24-69 to the person appointed when the person has qualified according to
24-70 law.
25-1 Sec. 693. ORDER OF COURT. (a) If it is found that an adult
25-2 person possesses the capacity to care for himself or herself and to
25-3 manage the individual's property as would a reasonably prudent
25-4 person, the court shall dismiss the application for guardianship.
25-5 (b) If it is found that the proposed ward is totally without
25-6 capacity as provided by this code to care for himself or herself
25-7 and to manage the individual's property, the court shall include
25-8 that determination as a finding of fact in its final order in the
25-9 proceeding, and the court may appoint a guardian of the
25-10 individual's person or estate, or both, with full authority over
25-11 the incapacitated person except as provided by law.
25-12 (c) If it is found that the person lacks the capacity to do
25-13 some, but not all, of the tasks necessary to care for himself or
25-14 herself or to manage the individual's property, the court may
25-15 appoint a guardian with limited powers and permit the individual to
25-16 care for himself or herself or to manage the individual's property
25-17 commensurate with the individual's ability.
25-18 (d) An order appointing a guardian must contain findings of
25-19 fact and specify:
25-20 (1) the information required by Section 692 of this
25-21 code;
25-22 (2) the specific powers, limitations, or duties of the
25-23 guardian with respect to the care of the person or the management
25-24 of the person's property by the guardian; and
25-25 (3) if necessary, the amount of funds from the corpus
25-26 of the person's estate the court will allow the guardian to expend
25-27 for the education and maintenance of the person under Section 776
25-28 of this code.
25-29 (e) An order appointing a guardian may not duplicate or
25-30 conflict with the powers and duties of any other guardian.
25-31 Sec. 694. TERM OF APPOINTMENT OF GUARDIAN. (a) Unless
25-32 otherwise discharged as provided by law, a guardian remains in
25-33 office until the estate is closed.
25-34 (b) The guardianship shall be settled and closed when the
25-35 incapacitated person:
25-36 (1) dies and, if the person was married, the person's
25-37 spouse qualifies as survivor in community;
25-38 (2) is found by the court to have full capacity to
25-39 care for himself or herself and to manage the person's property;
25-40 (3) is no longer a minor;
25-41 (4) returns to the United States, if the person was a
25-42 missing person and the court grants the motion of any interested
25-43 person to vacate the original order of guardianship; or
25-44 (5) no longer must have a guardian appointed to
25-45 receive funds due the person from any governmental source.
25-46 (c) An order appointing a guardian or a successor guardian
25-47 may specify a period of not more than one year during which a
25-48 petition for adjudication that the incapacitated person no longer
25-49 requires the guardianship may not be filed without special leave.
25-50 (d) Except as provided by Subsection (c) of this section, a
25-51 ward or any person interested in the ward's welfare may petition
25-52 the court for an order:
25-53 (1) finding that the ward no longer needs the
25-54 guardianship and ordering that the guardian resign or be removed;
25-55 (2) finding that the ward lacks the capacity to do
25-56 some or all of the tasks necessary to care for himself or herself
25-57 or to manage the ward's property and granting additional powers or
25-58 duties to the guardian with respect to the care of the ward or the
25-59 management of the ward's property by the guardian; or
25-60 (3) finding that the ward has regained the capacity to
25-61 do some, but not all, of the tasks necessary to care for himself or
25-62 herself or to manage the ward's property and:
25-63 (A) limiting the powers or duties of the
25-64 guardian with respect to the care of the ward or the management of
25-65 the ward's property by the guardian; and
25-66 (B) permitting the ward to care for himself or
25-67 herself or to manage the ward's property commensurate with the
25-68 ward's ability.
25-69 (e) A request for an order under this section may be made by
25-70 informal letter to the court. A person who knowingly interferes
26-1 with the transmission of the request to the court may be adjudged
26-2 guilty of contempt of court.
26-3 (f) If a nonresident guardian of a nonresident ward
26-4 qualifies as guardian under this chapter, the guardianship of any
26-5 resident guardian may be terminated.
26-6 Sec. 695. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) If a
26-7 guardian dies, resigns, or is removed, the court may, on
26-8 application and on service of notice as directed by the court,
26-9 appoint a successor guardian.
26-10 (b) A successor guardian has the powers and rights and is
26-11 subject to all of the duties of the preceding guardian.
26-12 Sec. 696. APPOINTMENT OF PRIVATE PROFESSIONAL GUARDIANS. A
26-13 court may not appoint a private professional guardian to serve as a
26-14 guardian or permit a private professional guardian to continue to
26-15 serve as a guardian under this code if the private professional
26-16 guardian has not complied with the requirements of Section 697 of
26-17 this code.
26-18 Sec. 697. REGISTRATION OF PRIVATE PROFESSIONAL GUARDIANS.
26-19 (a) A private professional guardian must apply annually to the
26-20 clerk of the county having venue over the proceeding for the
26-21 appointment of a guardian for certification. The application must
26-22 include a sworn statement containing the following information
26-23 concerning a private professional guardian or a person who
26-24 represents or plans to represent the interests of a ward as a
26-25 guardian on behalf of the private professional guardian:
26-26 (1) educational background and professional
26-27 experience;
26-28 (2) three or more professional references;
26-29 (3) the names of all of the wards the private
26-30 professional guardian or person is or will be serving as a
26-31 guardian;
26-32 (4) the aggregate fair market value of the property of
26-33 all wards that is being or will be managed by the private
26-34 professional guardian or person;
26-35 (5) place of residence, business address, and business
26-36 telephone number; and
26-37 (6) whether the private professional guardian or
26-38 person has ever been removed as a guardian by the court or resigned
26-39 as a guardian in a particular case, and, if so, a description of
26-40 the circumstances causing the removal or resignation, and the style
26-41 of the suit, the docket number, and the court having jurisdiction
26-42 over the proceeding.
26-43 (b) The application must be accompanied by a nonrefundable
26-44 fee set by the clerk in an amount necessary to cover the cost of
26-45 administering this section.
26-46 (c) The term of the certification begins on the date that
26-47 the requirements are met and extends through December 31 of the
26-48 initial year. After the initial year of certification, the term of
26-49 the certification begins on January 1 and ends on December 31 of
26-50 each year. A renewal application must be completed during December
26-51 of the year preceding the year for which the renewal is requested.
26-52 (d) The clerk shall bring the information received under
26-53 this section to the judge's attention for review. The judge shall
26-54 use the information only in determining whether to appoint, remove,
26-55 or continue the appointment of a private professional guardian.
26-56 Sec. 698. ACCESS TO CRIMINAL HISTORY RECORDS. (a) The
26-57 clerk of the county having venue over the proceeding for the
26-58 appointment of a guardian shall obtain criminal history record
26-59 information that is maintained by the Department of Public Safety
26-60 or the Federal Bureau of Investigation identification division
26-61 relating to a private professional guardian or a person who
26-62 represents or plans to represent the interests of a ward as a
26-63 guardian on behalf of the private professional guardian.
26-64 (b) The criminal history record information obtained under
26-65 this section is for the exclusive use of the court and is
26-66 privileged and confidential. The criminal history record
26-67 information may not be released or otherwise disclosed to any
26-68 person or agency except on court order or consent of the person
26-69 being investigated. The clerk may destroy the criminal history
26-70 information records after the records are used for the purposes
27-1 authorized by this section.
27-2 (c) The court shall use the information obtained under this
27-3 section only in determining whether to appoint, remove, or continue
27-4 the appointment of a private professional guardian.
27-5 (d) A person commits an offense if the person releases or
27-6 discloses any information received under this section without the
27-7 authorization prescribed by Subsection (b) of this section. An
27-8 offense under this subsection is a Class A misdemeanor.
27-9 (e) The clerk may charge a reasonable fee sufficient to
27-10 recover the costs of obtaining criminal history information records
27-11 authorized by Subsection (a) of this section.
27-12 SUBPART B. QUALIFICATION
27-13 Sec. 699. HOW GUARDIANS QUALIFY. A guardian is deemed to
27-14 have duly qualified when the guardian has taken and filed the oath
27-15 required under Section 700 of this code, has made the required
27-16 bond, and has filed it with the clerk, and has the bond approved by
27-17 the judge. A guardian who is not required to make bond, is deemed
27-18 to have duly qualified when the guardian has taken and filed the
27-19 required oath.
27-20 Sec. 700. OATH OF GUARDIAN. The guardian shall take an oath
27-21 to discharge faithfully the duties of guardian for the person or
27-22 estate, or both, of a ward.
27-23 Sec. 701. TIME FOR TAKING OATH AND GIVING BOND. The oath of
27-24 a guardian may be taken and subscribed, or the bond of a guardian
27-25 may be given and approved, at any time before the expiration of the
27-26 20th day after the date of the order granting letters of
27-27 guardianship, or before the letters have been revoked for a failure
27-28 to qualify within the time allowed. An oath may be taken before
27-29 any person authorized to administer oaths under the laws of this
27-30 state.
27-31 Sec. 702. BOND OF GUARDIAN OF THE PERSON. (a) Except as
27-32 provided by Subsections (b) and (c) of this section, a guardian of
27-33 the person is required to give bond.
27-34 (b) A bond is not required to be given by a guardian that is
27-35 a corporate fiduciary, as defined by Section 601(5) of this code.
27-36 (c) When a will that is made by a surviving parent and is
27-37 probated in a court in this state directs that the guardian
27-38 appointed in the will serve without bond, the court finding that
27-39 the person is qualified shall issue letters of guardianship to the
27-40 person named to be appointed guardian in the will without
27-41 requirement of bond.
27-42 Sec. 703. BOND OF GUARDIAN OF THE ESTATE. (a) Except when
27-43 bond is not required under this chapter, before being issued
27-44 letters of guardianship of estates, the recipient of letters shall
27-45 give a bond that is conditioned as required by law and that is
27-46 payable to the judge of the county in which the guardianship
27-47 proceedings are pending or to the judge's successors in office. A
27-48 bond of the guardian of the estate must have the written approval
27-49 of either of the judges in the judge's official capacity and shall
27-50 be executed and approved in accordance with Subsections (b)-(q) of
27-51 this section.
27-52 (b) The judge shall set the penalty of the bond in an amount
27-53 that is sufficient to protect the guardianship and its creditors,
27-54 as provided by this chapter.
27-55 (c) If a bond is or will be required of a guardian of an
27-56 estate, the court, before setting the penalty of the bond, shall
27-57 hear evidence and determine:
27-58 (1) the amount of cash on hand and where deposited,
27-59 and the amount of cash estimated to be needed for administrative
27-60 purposes, including the operation of a business, factory, farm, or
27-61 ranch owned by the guardianship estate, and administrative expenses
27-62 for one year;
27-63 (2) the revenue anticipated to be received in the
27-64 succeeding 12 months from dividends, interest, rentals, or use of
27-65 real or personal property belonging to the guardianship estate and
27-66 the aggregate amount of any installments or periodic payments to be
27-67 collected;
27-68 (3) the estimated value of certificates of stock,
27-69 bonds, notes, or securities of the ward, the name of the depository
27-70 in which the stocks, bonds, notes, or securities of the ward are
28-1 held for safekeeping, the face value of life insurance or other
28-2 policies payable to the person on whose guardianship administration
28-3 is sought or to the person's estate, and other personal property
28-4 that is owned by the guardianship, or by a person with a
28-5 disability; and
28-6 (4) the estimated amount of debts due and owing by the
28-7 ward.
28-8 (d) The judge shall set the penalty of the bond in an
28-9 amount equal to the estimated value of all personal property
28-10 belonging to the ward, with an additional amount to cover revenue
28-11 anticipated to be derived during the succeeding 12 months from
28-12 interest, dividends, collectible claims, the aggregate amount of
28-13 any installments or periodic payments exclusive of income derived
28-14 or to be derived from federal social security payments, and rentals
28-15 for use of real and personal property, provided that the penalty of
28-16 the original bond shall be reduced in proportion to the amount of
28-17 cash or value of securities or other assets authorized or required
28-18 to be deposited or placed in safekeeping by court order, or
28-19 voluntarily made by the guardian or by the sureties on the bond of
28-20 the guardian as provided in Subsections (f) and (g) of this
28-21 section.
28-22 (e) If the court considers it to be in the best interests of
28-23 the ward, the court may require that the guardian and the corporate
28-24 or personal sureties on the bond of the guardian of the ward agree
28-25 to deposit any or all cash and safekeeping of other assets of the
28-26 guardianship estate in a domestic state or national bank, trust
28-27 company, savings and loan association, or other domestic corporate
28-28 depository, duly incorporated and qualified to act as a national
28-29 bank, trust company, savings and loan association, or other
28-30 domestic corporate depository under the laws of this state or of
28-31 the United States, and, if the depository is otherwise proper, the
28-32 court may require the deposit to be made in a manner so as to
28-33 prevent the withdrawal of the money or other assets in the
28-34 guardianship estate without the written consent of the surety or on
28-35 court order made on the notice to the surety. An agreement made by
28-36 a guardian and the sureties on the bond of the guardian under this
28-37 section does not release from liability or change the liability of
28-38 the principal or sureties as established by the terms of the bond.
28-39 (f) Cash, securities, or other personal assets of a ward
28-40 that a ward is entitled to receive may, and if it is deemed by the
28-41 court in the best interests of the ward shall, be deposited or
28-42 placed in safekeeping in one or more of the depositories described
28-43 in this section on the terms prescribed by the court. The court in
28-44 which the guardianship proceeding is pending, on its own motion or
28-45 on written application of the guardian or of any other person
28-46 interested in the ward, may authorize or require additional assets
28-47 of the guardianship estate then on hand or as they accrue during
28-48 the pendency of the guardianship proceeding to be deposited or held
28-49 in safekeeping as provided by this section. The amount of the
28-50 guardian's bond shall be reduced in proportion to the cash
28-51 deposited or the value of the securities or other assets placed in
28-52 safekeeping. Cash that is deposited, securities or other assets
28-53 held in safekeeping, or portions of the cash, securities, or other
28-54 assets held in safekeeping may be withdrawn from a depository only
28-55 on court order. The bond of the guardian shall be increased in
28-56 proportion to the amount of cash or the value of securities or
28-57 other assets that are authorized to be withdrawn.
28-58 (g) In lieu of giving a surety or sureties on a bond that is
28-59 required of the guardian, or for purposes of reducing the amount of
28-60 the bond, the guardian of an estate may deposit out of the
28-61 guardian's own assets cash or securities that are acceptable to the
28-62 court with a domestic state or national bank, trust company,
28-63 savings and loan association, or other domestic corporate
28-64 depository or with any other corporate depository approved by the
28-65 court. If the deposit is otherwise proper, the deposit must be
28-66 equal in amount or value to the amount of the bond required or the
28-67 bond shall be reduced by the value of assets that are deposited.
28-68 (h) The depository shall issue a receipt for a deposit in
28-69 lieu of a surety showing the amount of cash or, if securities, the
28-70 amount and description of the securities and agreeing not to
29-1 disburse or deliver the cash or securities except on receipt of a
29-2 certified copy of an order of the court in which the proceeding is
29-3 pending. The receipt must be attached to the guardian's bond and
29-4 be delivered to and filed by the county clerk after the receipt is
29-5 approved by the judge.
29-6 (i) The amount of cash or securities on deposit may be
29-7 increased or decreased by court order from time to time as the
29-8 interests of the guardianship shall require.
29-9 (j) A cash or security deposit in lieu of a surety on the
29-10 bond may be withdrawn or released only on order of a court that has
29-11 jurisdiction.
29-12 (k) A creditor has the same rights against the guardian and
29-13 the deposits as are provided for recovery against sureties on a
29-14 bond.
29-15 (l) The court on its own motion or on written application by
29-16 the guardian or any other person interested in the guardianship may
29-17 require that the guardian give adequate bond in lieu of the deposit
29-18 or may authorize withdrawal of the deposit and substitution of a
29-19 bond with sureties on the bond. In either case, the guardian shall
29-20 file a sworn statement showing the condition of the guardianship.
29-21 The guardian is subject to removal as in other cases if the
29-22 guardian does not file the sworn statement before the 21st day
29-23 after the guardian is personally served with notice of the filing
29-24 of the application or before the 21st day after the date the court
29-25 enters its motion. The deposit may not be released or withdrawn
29-26 until the court is satisfied as to the condition of the
29-27 guardianship estate, determines the amount of bond, and receives
29-28 and approves the bond.
29-29 (m) On the closing of a guardianship, a deposit or a portion
29-30 of a deposit that remains on hand, whether of the assets of the
29-31 guardian, the guardianship, or surety, shall be released by court
29-32 order and paid to the person entitled to the assets. A writ of
29-33 attachment or garnishment does not lie against the deposit except
29-34 as to claims of creditors of the guardianship being administered or
29-35 of persons interested in the guardianship, including distributees
29-36 and wards, and only if the court has ordered distribution, and only
29-37 to the extent of the ordered distribution.
29-38 (n) The surety on the bond may be an authorized corporate or
29-39 personal surety.
29-40 (o) When the bond is more than $50,000, the court may
29-41 require that the bond be signed by two or more authorized corporate
29-42 sureties or by one corporate surety and two or more good and
29-43 sufficient personal sureties. The guardianship shall pay the cost
29-44 of a bond with corporate sureties.
29-45 (p) If the sureties are natural persons, there may not be
29-46 less than two sureties, each of whom shall make affidavit in the
29-47 manner prescribed by this chapter. The judge must be satisfied
29-48 that each surety owns property in this state, over and above that
29-49 exempt by law, sufficient to qualify as a surety as required by
29-50 law. Except as otherwise provided by law, only one surety is
29-51 required if the surety is an authorized corporate surety. A
29-52 personal surety, instead of making an affidavit or creating a lien
29-53 on specific real estate when an affidavit or lien is required, may
29-54 deposit the personal surety's own cash or securities in the same
29-55 manner as a guardian in lieu of pledging real property as security,
29-56 subject to the provisions covering the deposits when made by
29-57 guardians.
29-58 (q) If the guardian is a temporary guardian, the judge shall
29-59 set the amount of the bond.
29-60 (r) The provisions of this section relating to the deposit
29-61 of cash and safekeeping of securities cover, as far as they may
29-62 apply, the orders entered by the court when:
29-63 (1) real or personal property of a guardianship has
29-64 been authorized to be sold or rented;
29-65 (2) money is borrowed from the guardianship;
29-66 (3) real property, or an interest in real property,
29-67 has been authorized to be leased for mineral development or made
29-68 subject to unitization;
29-69 (4) the general bond has been found insufficient; or
29-70 (5) money is borrowed or invested on behalf of a ward.
30-1 (s) In determining the amount of the bond, the court may not
30-2 take into account the assets of the estate that are placed in a
30-3 management trust under Subpart N, Part 4, of this code.
30-4 Sec. 704. FORM OF BOND. The following form, or the same in
30-5 substance, may be used for the bonds of guardians:
30-6 "The State of Texas
30-7 "County of _____
30-8 "Know all men by these presents that we, A. B., as principal,
30-9 and E. F., as sureties, are held and firmly bound to the county
30-10 judge of the County of ____ and his successors in office, in the
30-11 sum of $______; conditioned that the above bound A. B., who has
30-12 been appointed by the judge of the county as guardian or temporary
30-13 guardian of the person or of the estate, or both, __________,
30-14 stating in each case whether or not the person is a minor or an
30-15 incapacitated person other than a minor, shall well and truly
30-16 perform all of the duties required of the guardian or temporary
30-17 guardian of the estate by law under appointment."
30-18 Sec. 705. BOND TO BE FILED. A bond required under this
30-19 chapter shall be subscribed by the principals and sureties, and
30-20 shall be filed with the clerk when approved by the court.
30-21 Sec. 706. BOND OF JOINT GUARDIANS. When two or more persons
30-22 are appointed guardians and are required to give a bond by the
30-23 court or under this chapter, the court may require either a
30-24 separate bond from each person or one joint bond from all of the
30-25 persons.
30-26 Sec. 707. BOND OF MARRIED PERSONS. When a married person is
30-27 appointed guardian, the person may jointly execute, with or
30-28 without, the person's spouse, the bond required by law. The bond
30-29 shall bind the person's separate estate and may bind the person's
30-30 spouse only if the bond is signed by the spouse.
30-31 Sec. 708. BOND OF MARRIED PERSON YOUNGER THAN 18 YEARS OF
30-32 AGE. When a person who is younger than 18 years of age and is or
30-33 has been married accepts and qualifies as guardian, a bond required
30-34 to be executed by the person shall be as valid and binding for all
30-35 purposes as if the person were of lawful age.
30-36 Sec. 708A. BOND OF GUARDIANSHIP PROGRAM. The judge may
30-37 require a guardianship program that is appointed guardian under
30-38 this chapter to file one bond that:
30-39 (1) meets all the conditions required under this
30-40 chapter; and
30-41 (2) is in an amount that is sufficient to protect the
30-42 guardianship and the creditors of the guardianship of all of the
30-43 wards of the guardianship program.
30-44 Sec. 709. AFFIDAVIT OF PERSONAL SURETY; LIEN ON SPECIFIC
30-45 PROPERTY WHEN REQUIRED; SUBORDINATION OF LIEN AUTHORIZED.
30-46 (a) Before a judge considers a bond with a personal surety, each
30-47 personal surety shall execute an affidavit stating the amount of
30-48 the surety's assets, reachable by creditors, of a value over and
30-49 above the surety's liabilities. The total of the surety's worth
30-50 must be equal to at least double the amount of the bond. The
30-51 affidavit shall be presented to the judge for the judge's
30-52 consideration and, if approved, shall be attached to and form part
30-53 of the bond.
30-54 (b) If the judge finds that the estimated value of personal
30-55 property of the guardianship that cannot be deposited or held in
30-56 safekeeping as provided by this section is such that personal
30-57 sureties cannot be accepted without the creation of a specific lien
30-58 on the real property of the sureties, the judge shall enter an
30-59 order requiring that each surety designate real property owned by
30-60 the surety in this state subject to execution. The designated
30-61 property must be of a value over and above all liens and unpaid
30-62 taxes, equal at least to the amount of the bond, giving an adequate
30-63 legal description of the property, all of which shall be
30-64 incorporated in an affidavit by the surety, approved by the judge,
30-65 and attached to and form part of the bond. If the surety does not
30-66 comply with the order, the judge may require that the bond be
30-67 signed by an authorized corporate surety or by an authorized
30-68 corporate surety and two or more personal sureties.
30-69 (c) If a personal surety who has been required to create a
30-70 lien on specific real estate desires to lease the real property for
31-1 mineral development, the personal surety may file the surety's
31-2 written application in the court in which the proceeding is pending
31-3 to request subordination of the lien to the proposed lease. The
31-4 judge of the court in which the proceeding is pending may enter an
31-5 order granting the application. A certified copy of an order
31-6 entered under this subsection that is filed and recorded in the
31-7 deed records of the proper county is sufficient to subordinate the
31-8 lien to the rights of a lessee in the proposed lease.
31-9 Sec. 710. BOND AS LIEN ON REAL PROPERTY OF SURETY. When a
31-10 personal surety is required by the court to create a lien on
31-11 specific real property as a condition of the personal surety's
31-12 acceptance as surety on a bond, a lien on the surety's real
31-13 property in this state that is described in the affidavit of the
31-14 surety, and only on the property, shall arise as security for the
31-15 performance of the obligation of the bond. Before letters are
31-16 issued to the guardian, the clerk of the court shall mail to the
31-17 office of the county clerk of each county in which any real
31-18 property set forth in the surety's affidavit is located a statement
31-19 signed by the clerk that gives a sufficient description of the real
31-20 property, the name of the principal and sureties, the amount of the
31-21 bond, the name of the guardianship, and the court in which the bond
31-22 is given. The county clerk to whom such statement is sent shall
31-23 record the statement in the deed records of the county. The
31-24 recorded statement shall be duly indexed in such a manner that the
31-25 existence and character of a lien may conveniently be determined,
31-26 and the recording and indexing of the statement is constructive
31-27 notice to a person of the existence of the lien on the real
31-28 property located in the county, effective as of the date of the
31-29 indexing.
31-30 Sec. 711. WHEN NEW BOND MAY BE REQUIRED. A guardian may be
31-31 required to give a new bond when:
31-32 (1) one of the sureties on the bond dies, removes
31-33 beyond the limits of the state, or becomes insolvent;
31-34 (2) in the opinion of the court, the sureties on the
31-35 bond are insufficient;
31-36 (3) in the opinion of the court, the bond is
31-37 defective;
31-38 (4) the amount of the bond is insufficient;
31-39 (5) one of the sureties petitions the court to be
31-40 discharged from future liability on the bond; or
31-41 (6) the bond and the record of the bond has been lost
31-42 or destroyed.
31-43 Sec. 712. DEMAND FOR NEW BOND BY INTERESTED PERSON. A
31-44 person interested in a guardianship may allege, on application in
31-45 writing that is filed with the county clerk of the county in which
31-46 the guardianship proceeding is pending, that the guardian's bond is
31-47 insufficient or defective or has been, with the record of the bond,
31-48 lost or destroyed, and may cause the guardian to be cited to appear
31-49 and show cause why the guardian should not give a new bond.
31-50 Sec. 713. JUDGE TO REQUIRE NEW BOND. When it is made known
31-51 to a judge that a bond is insufficient or that the bond has, with
31-52 the record of the bond, been lost or destroyed, the judge without
31-53 delay shall cause the guardian to be cited to show cause why the
31-54 guardian should not give a new bond.
31-55 Sec. 714. ORDER REQUIRING NEW BOND. On the return of a
31-56 citation ordering a guardian to show cause why the guardian should
31-57 not give a new bond, the judge on the day contained in the return
31-58 of citation as the day for the hearing of the matter, shall proceed
31-59 to inquire into the sufficiency of the reasons for requiring a new
31-60 bond. If the judge is satisfied that a new bond should be
31-61 required, the judge shall enter an order to that effect that states
31-62 the amount of the new bond and the time within which the new bond
31-63 shall be given, which may not be later than 20 days from the date
31-64 of the order issued by the judge under this section.
31-65 Sec. 715. ORDER SUSPENDS POWERS OF GUARDIANS. When a
31-66 guardian is required to give a new bond, the order requiring the
31-67 bond has the effect of suspending the guardian's powers, and the
31-68 guardian may not pay out any money of the guardianship or do any
31-69 other official act, except to preserve the property of the
31-70 guardianship, until a new bond has been given and approved.
32-1 Sec. 716. DECREASE IN AMOUNT OF BOND. A guardian required
32-2 to give bond at any time may file with the clerk a written
32-3 application to the court to have the bond reduced. After an
32-4 application has been filed by the guardian under this section, the
32-5 clerk shall issue and cause to be posted notice to all persons
32-6 interested in the estate and to a surety on the bond, apprising the
32-7 persons and surety of the fact and nature of the application and of
32-8 the time at which the judge will hear the application. The judge
32-9 may permit the filing of a new bond in a reduced amount on the
32-10 submission of proof that a smaller bond than the one in effect will
32-11 be adequate to meet the requirements of the law and protect the
32-12 guardianship and on the approval of an accounting filed at the time
32-13 of the application.
32-14 Sec. 717. DISCHARGE OF SURETIES ON EXECUTION OF NEW BOND.
32-15 When a new bond has been given and approved, the judge shall enter
32-16 an order discharging the sureties on the former bond from all
32-17 liability for the future acts of the principal.
32-18 Sec. 718. RELEASE OF SURETIES BEFORE GUARDIANSHIP FULLY
32-19 ADMINISTERED. A surety on the guardian's bond at any time may file
32-20 with the clerk a petition with the court in which the proceeding is
32-21 pending, praying that the guardian be required to give a new bond
32-22 and that the petitioner be discharged from all liability for the
32-23 future acts of the guardian. If a petition is filed, the guardian
32-24 shall be cited to appear and give a new bond.
32-25 Sec. 719. RELEASE OF LIEN BEFORE GUARDIANSHIP FULLY
32-26 ADMINISTERED. If a personal surety who has given a lien on
32-27 specific real property as security applies to the court to have the
32-28 lien released, the court shall order the release requested if the
32-29 court is satisfied that the bond is sufficient without the lien on
32-30 the property or if sufficient other real or personal property of
32-31 the surety is substituted on the same terms and conditions required
32-32 for the lien that is to be released. If the personal surety who
32-33 requests the release of the lien does not offer a lien on other
32-34 real or personal property and if the court is not satisfied that
32-35 the bond is sufficient without the substitution of other property,
32-36 the court shall order the guardian to appear and give a new bond.
32-37 Sec. 720. RELEASE OF RECORDED LIEN ON SURETY'S PROPERTY. A
32-38 certified copy of the court order that describes the property,
32-39 releases the lien, and is filed with the county clerk and recorded
32-40 in the deed records of the county in which the property is located
32-41 has the effect of cancelling the lien on the property.
32-42 Sec. 721. REVOCATION OF LETTERS FOR FAILURE TO GIVE BOND.
32-43 If a guardian of a ward fails to give the bond required by the
32-44 court within the time required under this chapter, another person
32-45 may be appointed guardian of the ward.
32-46 Sec. 722. GUARDIAN WITHOUT BOND REQUIRED TO GIVE BOND. If a
32-47 bond is not required of an individual guardian of the estate, a
32-48 person that has a debt, claim, or demand against the guardianship,
32-49 to the justice of which oath has been made by the person, the
32-50 person's agent or attorney, or any other person interested in the
32-51 guardianship, in person or as the representative of another person,
32-52 may file a complaint under oath in writing in the court in which
32-53 the guardian was appointed, and the court, after a complaint is
32-54 filed under this section, shall cite the guardian to appear and
32-55 show cause why the guardian should not be required to give bond.
32-56 Sec. 723. ORDER REQUIRING BOND. On hearing a complaint
32-57 under Section 722 of this code, if it appears to the court that a
32-58 guardian is wasting, mismanaging, or misapplying the guardianship
32-59 estate and that a creditor may probably lose his debt, or that a
32-60 person's interest in the guardianship may be diminished or lost,
32-61 the court shall enter an order requiring the guardian to give a
32-62 bond not later than the 10th day after the date of the order.
32-63 Sec. 724. AMOUNT OF BOND. A bond that is required under
32-64 Section 723 of this code shall be in an amount that is sufficient
32-65 to protect the guardianship and its creditors. The bond shall be
32-66 approved by and payable to the judge and shall be conditioned that
32-67 the guardian will well and truly administer the guardianship and
32-68 that the guardian will not waste, mismanage, or misapply the
32-69 guardianship estate.
32-70 Sec. 725. FAILURE TO GIVE BOND. If the guardian fails to
33-1 give the bond required under Section 723 of this code, and the
33-2 judge does not extend the time, the judge, without citation, shall
33-3 remove the guardian and appoint a competent person as guardian of
33-4 the ward who:
33-5 (1) shall administer the guardianship according to the
33-6 provisions of a will or law;
33-7 (2) shall take the oath required of a guardian as the
33-8 case may be before the person enters on the administration of the
33-9 guardianship; and
33-10 (3) shall give bond in the same manner and in the same
33-11 amount provided in this chapter for the issuance of original
33-12 letters of guardianship.
33-13 Sec. 726. BONDS NOT VOID ON FIRST RECOVERY. The bond of a
33-14 guardian is not void on the first recovery, but the bond may be
33-15 sued on and prosecuted from time to time until the whole amount of
33-16 the bond is recovered.
33-17 PART 4. ADMINISTRATION OF GUARDIANSHIP
33-18 SUBPART A. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS
33-19 Sec. 727. APPOINTMENT OF APPRAISERS. After letters of
33-20 guardianship of the estate have been granted and on the application
33-21 of any interested person, or if the court deems it necessary, the
33-22 court shall appoint at least one but not more than three
33-23 disinterested persons who are citizens of the county in which
33-24 letters were granted to appraise the property of the ward. If the
33-25 court appoints an appraiser under this section and part of the
33-26 estate is located in a county other than the county in which
33-27 letters were granted, the court may appoint at least one but not
33-28 more than three disinterested persons who are citizens of the
33-29 county in which the part of the estate is located to appraise the
33-30 property of the estate located in the county if the court considers
33-31 it necessary to appoint an appraiser.
33-32 Sec. 728. FAILURE OF APPRAISER TO SERVE. If an appraiser
33-33 appointed under Section 727 of this code fails or refuses to act,
33-34 the court shall remove the appraiser and appoint one or more
33-35 appraisers.
33-36 Sec. 729. INVENTORY AND APPRAISEMENT. (a) Not later than
33-37 the 90th day after the date the guardian of the estate qualifies as
33-38 guardian, unless a longer time is granted by the court, the
33-39 guardian of the estate shall file with the clerk of court a
33-40 verified, full and detailed inventory, in one written instrument,
33-41 of all the property of the ward that has come into the guardian's
33-42 possession or knowledge. The inventory filed by the guardian under
33-43 this section must include:
33-44 (1) all real property of the ward that is located in
33-45 this state; and
33-46 (2) all personal property of the ward wherever
33-47 located.
33-48 (b) The guardian shall set out in the inventory the
33-49 guardian's appraisement of the fair market value of each item of
33-50 the property on the date of the grant of letters of guardianship.
33-51 If the court appoints an appraiser of the estate, the guardian
33-52 shall determine the fair market value of each item of the inventory
33-53 with the assistance of the appraiser and shall set out in the
33-54 inventory the appraisement made by the appraiser.
33-55 (c) An inventory made under this section must specify what
33-56 portion of the property is separate property and what portion is
33-57 community property. If any property is owned in common with other
33-58 persons, the interest owned by the ward shall be shown in the
33-59 inventory, together with the names and relationship, if known, of
33-60 co-owners.
33-61 (d) The inventory, when approved by the court and duly
33-62 filed with the clerk of court, is for purposes of this chapter the
33-63 inventory and appraisement of the estate referred to in this
33-64 chapter.
33-65 (e) The court for good cause shown may require the filing of
33-66 the inventory and appraisement at a time not later than the 90th
33-67 day after the date of qualification of the guardian.
33-68 Sec. 730. LIST OF CLAIMS. The guardian shall make and
33-69 attach to an inventory under Section 729 of this code a full and
33-70 complete list of all claims due or owing to the ward that must
34-1 state:
34-2 (1) the name of each person indebted to the ward and
34-3 the address of the person if known;
34-4 (2) the nature of the debt, whether it is a note,
34-5 bill, bond, or other written obligation or whether it is an account
34-6 or verbal contract;
34-7 (3) the date of the indebtedness and the date when the
34-8 debt is or was due;
34-9 (4) the amount of each claim, the rate of interest on
34-10 each claim, and time for which the claim bears interest; and
34-11 (5) what portion of the claim is held in common with
34-12 others, including the names and the relationships of other part
34-13 owners and the interest of the estate in the claim.
34-14 Sec. 731. AFFIDAVIT ATTACHED. The guardian of the estate
34-15 shall attach to the inventory and list of claims the guardian's
34-16 affidavit subscribed and sworn to before an officer in the county
34-17 authorized by law to administer oaths that the inventory and list
34-18 of claims are a true and complete statement of the property and
34-19 claims of the estate that have come to the guardian's knowledge.
34-20 Sec. 732. APPRAISER FEES. An appraiser appointed by the
34-21 court is entitled to receive a reasonable fee for the performance
34-22 of the appraiser's duties as an appraiser that are to be paid out
34-23 of the estate.
34-24 Sec. 733. COURT ACTION. (a) On return of the inventory,
34-25 appraisement, and list of claims, the judge shall examine and
34-26 approve or disapprove the inventory, appraisement, or list of
34-27 claims as follows:
34-28 (1) if the judge approves the inventory, appraisement,
34-29 and list of claims, the judge shall issue an order to that effect;
34-30 and
34-31 (2) if the judge does not approve the inventory,
34-32 appraisement, or list of claims, the judge shall enter an order to
34-33 that effect.
34-34 (b) The court order shall require the return of another
34-35 inventory, appraisement, and list of claims, or whichever of them
34-36 is disapproved, within a time specified in the order but not later
34-37 than 20 days after the date of the order. The judge may appoint
34-38 new appraisers if the judge deems it necessary.
34-39 Sec. 734. DISCOVERY OF ADDITIONAL PROPERTY. The guardian of
34-40 the estate shall promptly file with the clerk of court a verified,
34-41 full, and detailed supplemental inventory and appraisement if
34-42 property or claims that are not included in the inventory come to
34-43 the guardian's possession or knowledge after the guardian files the
34-44 inventory and appraisement required under Section 729 of this code.
34-45 Sec. 735. ADDITIONAL INVENTORY OR LIST OF CLAIMS. (a) On
34-46 the written complaint of an interested person that property or
34-47 claims of the estate have not been included in the inventory and
34-48 list of claims filed by the guardian, the guardian of an estate
34-49 shall be cited to appear before the court in which the cause is
34-50 pending and show cause why the guardian should not be required to
34-51 make and return an additional inventory or list of claims, or both.
34-52 (b) After hearing a complaint filed under this section and
34-53 being satisfied of the truth of the complaint, the court shall
34-54 enter an order requiring the additional inventory or list of
34-55 claims, or both, to be made and returned in like manner as the
34-56 original inventory, not later than 20 days after the date of the
34-57 order, as may be set by the court. The additional inventory or
34-58 list of claims must include only property or claims that were not
34-59 inventoried or listed by the guardian.
34-60 Sec. 736. CORRECTION WHEN INVENTORY, APPRAISEMENT, OR LIST
34-61 OF CLAIMS ERRONEOUS OR UNJUST. A person interested in an estate
34-62 who deems an inventory, appraisement, or list of claims returned by
34-63 the guardian erroneous or unjust in any particular form may file a
34-64 written complaint that sets forth and points out the alleged
34-65 erroneous or unjust items and cause the guardian to be cited to
34-66 appear before the court and show cause why the errors should not be
34-67 corrected. On the hearing of a complaint filed under this section,
34-68 if the court is satisfied from the evidence that the inventory,
34-69 appraisement, or list of claims is erroneous or unjust in any
34-70 particular form as alleged in the complaint, the court shall enter
35-1 an order that specifies the erroneous or unjust items and the
35-2 corrections to be made and that appoints an appraiser to make a new
35-3 appraisement correcting the erroneous or unjust items and requires
35-4 the return of the new appraisement not later than the 20th day
35-5 after the date of the order. The court may also, on its own motion
35-6 or on motion of the guardian of the estate, have a new appraisal
35-7 made for the purposes described by this section.
35-8 Sec. 737. EFFECT OF REAPPRAISEMENT. When a reappraisement
35-9 is made, returned, and approved by the court, the reappraisement
35-10 stands in place of the original appraisement. Not more than one
35-11 reappraisement shall be made, but any person interested in the
35-12 estate may object to the reappraisement before or after the
35-13 reappraisement is approved. If the court finds that the
35-14 reappraisement is erroneous or unjust, the court shall appraise the
35-15 property on the basis of the evidence before the court.
35-16 Sec. 738. FAILURE OF JOINT GUARDIANS TO RETURN AN INVENTORY,
35-17 APPRAISEMENT, AND LIST OF CLAIMS. If there is more than one
35-18 qualified guardian of the estate, one or more of the guardians, on
35-19 the neglect of the other guardians, may make and return an
35-20 inventory and appraisement and list of claims. The guardian so
35-21 neglecting may not thereafter interfere with the estate or have any
35-22 power over the estate. The guardian that returns an inventory,
35-23 appraisement, and list of claims has the whole administration,
35-24 unless, not later than the 60th day after the date of return, each
35-25 of the delinquent guardians assigns to the court in writing and
35-26 under oath a reasonable excuse that the court may deem
35-27 satisfactory. If no excuse is filed or if the excuse filed by a
35-28 delinquent guardian is insufficient, the court shall enter an order
35-29 removing the delinquent guardian and revoking the guardian's
35-30 letters.
35-31 Sec. 739. USE OF INVENTORIES, APPRAISEMENTS, AND LISTS OF
35-32 CLAIMS AS EVIDENCE. All inventories, appraisements, and lists of
35-33 claims that have been taken, returned, and approved in accordance
35-34 with the law, or the record of an inventory, appraisement, or list
35-35 of claims, or copies of either the originals or the record, duly
35-36 certified under the seal of the county court affixed by the clerk,
35-37 may be given in evidence in any of the courts of this state in any
35-38 suit by or against the guardian of the estate, but may not be
35-39 conclusive for or against the guardian of the estate if it is shown
35-40 that any property or claims of the estate are not shown in the
35-41 inventory, appraisement, or list of claims or that the value of the
35-42 property or claims of the estate actually was in excess of the
35-43 value shown in the appraisement and list of claims.
35-44 SUBPART B. ANNUAL ACCOUNTS, REPORTS, AND OTHER EXHIBITS
35-45 Sec. 741. ANNUAL ACCOUNTS REQUIRED. (a) Not later than the
35-46 60th day after the expiration of 12 months from the date of
35-47 qualification, unless the court extends that time period, the
35-48 guardian of the estate of a ward shall return to the court an
35-49 exhibit in writing under oath setting forth a list of all claims
35-50 against the estate that were presented to the guardian within the
35-51 period covered by the account and specifying which claims have been
35-52 allowed, paid, or rejected by the guardian and the date when any
35-53 claim was rejected and which claims have been the subject of a
35-54 lawsuit and the status of the lawsuit, and showing:
35-55 (1) all property that has come to the guardian's
35-56 knowledge or into the guardian's possession that has not been
35-57 previously listed or inventoried as property of the ward;
35-58 (2) any changes in the property of the ward that have
35-59 not been previously reported;
35-60 (3) a complete account of receipts and disbursements
35-61 for the period covered by the account, and the source and nature of
35-62 the receipts and disbursements, with receipts of principal and
35-63 income shown separately;
35-64 (4) a complete, accurate, and detailed description of
35-65 the property being administered, the condition of the property, and
35-66 the use being made of the property and, if rented, the terms of the
35-67 rental and the price for which the property is being rented;
35-68 (5) the cash balance on hand and the name and location
35-69 of the depository where the cash balance is kept and any other sums
35-70 of cash in savings accounts or other form, deposited subject to
36-1 court order, and the name and location of the depository of the
36-2 cash; and
36-3 (6) a detailed description of personal property of the
36-4 estate, that, with respect to bonds, notes, and other securities,
36-5 includes the names of obligor and obligee, or if payable to bearer,
36-6 so state; the date of issue and maturity; the rate of interest;
36-7 serial or other identifying numbers; in what manner the property is
36-8 secured; and other data necessary to identify the same fully, and
36-9 how and where held for safekeeping.
36-10 (b) A guardian of the estate shall file annual accounts
36-11 conforming to the essential requirements of those in Subsection (a)
36-12 of this section as to changes in the assets of the estate after
36-13 rendition of the former account so that the true condition of the
36-14 estate, with respect to money or securities or other property, can
36-15 be ascertained by the court or by any interested person, by adding
36-16 to the balances forward the receipts, and then subtracting the
36-17 disbursements. The description of property sufficiently described
36-18 in an inventory or previous account may be by reference to the
36-19 property.
36-20 (c) The following shall be annexed to all annual accounts of
36-21 guardians of estates:
36-22 (1) proper vouchers for each item of credit claimed in
36-23 the account, or, in the absence of a voucher, the item must be
36-24 supported by evidence satisfactory to the court, and original
36-25 vouchers may, on application, be returned to the guardian after
36-26 approval of the guardian's account;
36-27 (2) an official letter from the bank or other
36-28 depository in which the money on hand of the estate or ward is
36-29 deposited that shows the amounts in general or special deposits;
36-30 and
36-31 (3) proof of the existence and possession of
36-32 securities owned by the estate, or shown by the accounting, and
36-33 other assets held by a depository subject to court order, the proof
36-34 by one of the following means:
36-35 (A) an official letter from the bank or other
36-36 depository that holds the securities or other assets for
36-37 safekeeping; provided, that if the depository is the
36-38 representative, the official letter shall be signed by a
36-39 representative of the depository other than the depository that
36-40 verifies the account;
36-41 (B) a certificate of an authorized
36-42 representative of the corporation that is the surety on the
36-43 representative's bonds;
36-44 (C) a certificate of the clerk or a deputy clerk
36-45 of a court of record in this state; or
36-46 (D) an affidavit of any other reputable person
36-47 designated by the court on request of the guardian or other
36-48 interested party.
36-49 (d) A certificate or affidavit under this section shall be
36-50 to the effect that the affiant has examined the assets exhibited to
36-51 the affiant by the guardian as assets of the estate in which the
36-52 accounting is made, shall describe the assets by reference to the
36-53 account or otherwise sufficiently to identify those assets
36-54 exhibited, and shall state the time when and the place where the
36-55 assets were exhibited. Instead of using a certificate or an
36-56 affidavit, the representative may exhibit the securities to the
36-57 judge of the court who shall endorse on the account, or include in
36-58 the judge's order with respect to the account, a statement that the
36-59 securities shown to the judge as on hand were in fact exhibited to
36-60 the judge and that those securities exhibited to the judge were the
36-61 same as those shown in the account, or note any variance. If the
36-62 securities are exhibited at any place other than where deposited
36-63 for safekeeping, it shall be at the expense and risk of the
36-64 representative. The judge may require additional evidence as to
36-65 the existence and custody of the securities and other personal
36-66 property as in the judge's discretion the judge considers proper,
36-67 and the judge may require the representative to exhibit the
36-68 securities to the judge, or any person designated by the judge, at
36-69 any time at the place where the securities are held for
36-70 safekeeping.
37-1 (e) The guardian of the estate filing the account shall
37-2 attach to the account the guardian's affidavit that:
37-3 (1) the account contains a correct and complete
37-4 statement of the matters to which the account relates;
37-5 (2) the guardian has paid the bond premium for the
37-6 next accounting period;
37-7 (3) the guardian has filed all tax returns of the ward
37-8 due during the accounting period; and
37-9 (4) the guardian has paid all taxes the ward owed
37-10 during the accounting period, showing:
37-11 (A) the amount of the taxes;
37-12 (B) the date the guardian paid the taxes; and
37-13 (C) the name of the governmental entity to which
37-14 the guardian paid the taxes.
37-15 (f) If the guardian, on the ward's behalf, has not filed a
37-16 tax return or paid taxes that are due on the filing of the account
37-17 under this section, the guardian of the estate filing the account
37-18 shall attach to the account a description of the taxes and the
37-19 reasons for the guardian's failure to file the return or pay the
37-20 taxes.
37-21 (g) If the estate produces negligible or fixed income, the
37-22 court has the power to waive the filing of annual accounts, and the
37-23 court may permit the guardian to receive all income and apply it to
37-24 the support, maintenance, and education of the ward and account to
37-25 the court for income and corpus of the estate when the estate must
37-26 be closed.
37-27 Sec. 742. ACTION ON ANNUAL ACCOUNTS. (a) The rules in this
37-28 section govern the handling of annual accounts.
37-29 (b) Annual accounts shall be filed with the county clerk,
37-30 and the filing of the accounts shall be noted on the judge's
37-31 docket.
37-32 (c) Before being considered by the judge, the account must
37-33 remain on file for 10 days.
37-34 (d) After the expiration of 10 days after the filing of an
37-35 annual account, the judge shall consider the annual account, and
37-36 may continue the hearing on the account until the judge is fully
37-37 advised as to all items of the account.
37-38 (e) An accounting may not be approved unless possession of
37-39 cash, listed securities, or other assets held in safekeeping or on
37-40 deposit under court order has been proved as required by law.
37-41 (f) If an account is found to be incorrect, it shall be
37-42 corrected. When corrected to the satisfaction of the court, the
37-43 account shall be approved by a court order, and the court shall act
37-44 with respect to unpaid claims, as follows:
37-45 (1) if it appears from the exhibit, or from other
37-46 evidence, that the estate is wholly solvent, and that the guardian
37-47 has sufficient funds for the payment of every claim against the
37-48 estate, the court shall order immediate payment made of all claims
37-49 allowed and approved or established by judgment; and
37-50 (2) if it appears from the account, or from other
37-51 evidence, that the funds on hand are not sufficient for the payment
37-52 of all the claims, or if the estate is insolvent and the guardian
37-53 has any funds on hand, the court shall order the funds to be
37-54 applied to the payment of all claims having a preference in the
37-55 order of their priority if any claim is still unpaid, and then to
37-56 the payment pro rata of the other claims allowed and approved or
37-57 established by final judgment, taking into consideration also the
37-58 claims that were presented not later than 12 months after the date
37-59 of the granting of administration and those claims that are in suit
37-60 or on which suit may yet be instituted.
37-61 Sec. 743. REPORTS OF GUARDIANS OF THE PERSON. (a) The
37-62 guardian of the person, when there is a separate guardian of the
37-63 estate, shall at the expiration of 12 months from the date of the
37-64 guardian's qualification and receipt of letters, and annually
37-65 thereafter, return to the court the guardian's sworn account
37-66 showing each item of receipts and disbursements for the support and
37-67 maintenance of the ward, the education of the ward when necessary,
37-68 and support and maintenance of the ward's dependents, when
37-69 authorized by order of court.
37-70 (b) The guardian of the person, whether or not there is a
38-1 separate guardian of the estate, shall submit to the court an
38-2 annual report by sworn affidavit that contains the following
38-3 information:
38-4 (1) the guardian's current name, address, and phone
38-5 number;
38-6 (2) the ward's current:
38-7 (A) name, address, and phone number; and
38-8 (B) age and date of birth;
38-9 (3) the type of home in which the ward resides,
38-10 described as the ward's own; a nursing, guardian's, foster, or
38-11 boarding home; a relative's home, and the ward's relationship to
38-12 the relative; a hospital or medical facility; or other type of
38-13 residence;
38-14 (4) the length of time the ward has resided in the
38-15 present home and, if there has been a change in the ward's
38-16 residence in the past year, the reason for the change;
38-17 (5) the date the guardian most recently saw the ward,
38-18 and how frequently the guardian has seen the ward in the past year;
38-19 (6) a statement indicating whether or not the guardian
38-20 has possession or control of the ward's estate;
38-21 (7) the following statements concerning the ward's
38-22 health during the past year:
38-23 (A) whether the ward's mental health has
38-24 improved, deteriorated, or remained unchanged, and a description if
38-25 there has been a change; and
38-26 (B) whether the ward's physical health has
38-27 improved, deteriorated, or remained unchanged, and a description if
38-28 there has been a change;
38-29 (8) a statement concerning whether or not the ward has
38-30 regular medical care, and the ward's treatment or evaluation by any
38-31 of the following persons during the last year, including the name
38-32 of that person, and the treatment involved:
38-33 (A) a physician;
38-34 (B) a psychiatrist, psychologist, or other
38-35 mental health care provider;
38-36 (C) a dentist;
38-37 (D) a social or other caseworker; or
38-38 (E) another individual who provided treatment;
38-39 (9) a description of the ward's activities during the
38-40 past year, including recreational, educational, social, and
38-41 occupational activities, or if no activities are available or if
38-42 the ward is unable or has refused to participate in them, a
38-43 statement to that effect;
38-44 (10) the guardian's evaluation of the ward's living
38-45 arrangements as excellent, average, or below average, including an
38-46 explanation if the conditions are below average;
38-47 (11) the guardian's evaluation of whether the ward is
38-48 content or unhappy with the ward's living arrangements;
38-49 (12) the guardian's evaluation of unmet needs of the
38-50 ward;
38-51 (13) a statement of whether or not the guardian's
38-52 power should be increased, decreased, or unaltered, including an
38-53 explanation if a change is recommended; and
38-54 (14) any additional information the guardian desires
38-55 to share with the court regarding the ward.
38-56 (c) If the ward is deceased, the guardian shall provide the
38-57 court with the date and place of death, if known, in lieu of the
38-58 information about the ward otherwise required to be provided in the
38-59 annual report.
38-60 (d) Unless the judge is satisfied that the facts stated are
38-61 true, he shall issue orders as are necessary for the best interests
38-62 of the ward.
38-63 Sec. 744. PENALTY FOR FAILURE TO FILE ACCOUNTINGS, EXHIBITS,
38-64 OR REPORTS. If a guardian fails to file any accounting, exhibit,
38-65 or report required by this chapter, any person interested in the
38-66 estate may, on written complaint filed with the clerk of the
38-67 court, or the court on its own motion, may cause the guardian to be
38-68 cited to appear and show cause why the guardian should not file the
38-69 exhibit or report; and, on hearing, the court may order the
38-70 guardian to file the exhibit or report, and, unless good cause is
39-1 shown for the failure to file the exhibit or report, the court may
39-2 revoke the letters of the guardian and may fine the guardian an
39-3 amount not to exceed $1,000.
39-4 SUBPART C. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE
39-5 Sec. 745. CLOSING GUARDIANSHIPS OF THE ESTATE. (a) A
39-6 guardianship of the estate of a ward is settled and closed when:
39-7 (1) a minor ward dies or becomes an adult by becoming
39-8 18 years of age, or by removal of disabilities of minority
39-9 according to the law of this state, or by marriage;
39-10 (2) an incapacitated ward dies, or is decreed as
39-11 provided by law to have been restored to full legal capacity;
39-12 (3) the spouse of a married ward has qualified as
39-13 survivor in community and the ward owns no separate property;
39-14 (4) the estate of a ward becomes exhausted;
39-15 (5) the foreseeable income accruing to a ward or to
39-16 his estate is so negligible that maintaining the guardianship in
39-17 force would be burdensome;
39-18 (6) all of the assets of the estate have been placed
39-19 in a management trust under Subpart N, Part 4, of this code and the
39-20 court determines that a guardianship for the ward is no longer
39-21 necessary; or
39-22 (7) the court determines for any other reason that a
39-23 guardianship for the ward is no longer necessary.
39-24 (b) In a case arising under Subsection (a)(5) of this
39-25 section, the court may authorize the income to be paid to a parent,
39-26 or other person who has acted as guardian of the ward, to assist in
39-27 the maintenance of the ward and without liability to account to the
39-28 court for the income.
39-29 (c) When the estate of a minor ward consists only of cash or
39-30 cash equivalents in an amount of $25,000 or less, the guardianship
39-31 of the estate may be terminated and the assets paid to the county
39-32 clerk of the county in which the guardianship proceeding is
39-33 pending, and the clerk shall manage the funds as provided by
39-34 Section 885 of this code.
39-35 (d) In the settlement and closing of a guardianship, the
39-36 court may appoint an attorney ad litem to represent the interests
39-37 of the ward, and may allow the attorney reasonable compensation for
39-38 services provided by the attorney out of the ward's estate.
39-39 Sec. 746. PAYMENT OF FUNERAL EXPENSES AND OTHER DEBTS.
39-40 Notwithstanding Section 745 of this code, before the guardianship
39-41 of a person or estate of a ward is closed on the death of a ward,
39-42 the guardian, subject to the approval of the court, may make all
39-43 funeral arrangements, pay for the funeral expenses out of the
39-44 estate of the deceased ward, and pay all other debts out of the
39-45 estate. If a personal representative of the estate of a deceased
39-46 ward is appointed, the court shall on the written complaint of the
39-47 personal representative cause the guardian to be cited to appear
39-48 and present a final account as provided in Section 749 of this
39-49 code.
39-50 Sec. 747. TERMINATION OF GUARDIANSHIP OF THE PERSON.
39-51 (a) When the guardianship of an incapacitated person is settled
39-52 and closed as provided by Section 745 of this code, the guardian of
39-53 the person shall deliver all property of the ward in the possession
39-54 or control of the guardian to the emancipated ward or other person
39-55 entitled to the property. If the ward is deceased, the guardian
39-56 shall deliver the property to the personal representative of the
39-57 deceased ward's estate or other person entitled to the property.
39-58 (b) If there is no property of the ward in the possession or
39-59 control of the guardian of the person, the guardian shall file with
39-60 the court a sworn affidavit that states the reason the guardianship
39-61 was terminated and to whom the property of the ward in the
39-62 guardian's possession was delivered. The judge may issue orders as
39-63 necessary for the best interests of the ward or of the estate of a
39-64 deceased ward. This section does not discharge a guardian of the
39-65 person from liability for breach of the guardian's fiduciary
39-66 duties.
39-67 Sec. 748. PAYMENT BY GUARDIAN OF TAXES OR EXPENSES.
39-68 Notwithstanding any other provision of this chapter, a probate
39-69 court in which proceedings to declare heirship are maintained may
39-70 order the payment by the guardian of any and all taxes or expenses
40-1 of administering the estate and may order the sale of properties in
40-2 the ward's estate, when necessary, for the purpose of paying the
40-3 taxes or expenses of administering the estate or for the purpose of
40-4 distributing the estate among the heirs.
40-5 Sec. 749. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS.
40-6 When a guardianship of the estate is settled and closed, the
40-7 guardian shall present to the court the guardian's verified account
40-8 for final settlement. In the account it shall be sufficient to
40-9 refer to the inventory without describing each item of property in
40-10 detail and to refer to and adopt any and all guardianship
40-11 proceedings that concern sales, renting or hiring, leasing for
40-12 mineral development, or any other transaction on behalf of the
40-13 guardianship estate, including an exhibit, account, or voucher
40-14 previously filed and approved, without restating the particular
40-15 items. Each final account shall be accompanied by proper vouchers
40-16 in support of each item not already accounted for and shall show,
40-17 either by reference to any proceedings authorized above or by
40-18 statement of the facts:
40-19 (1) the property, rents, revenues, and profits
40-20 received by the guardian, and belonging to the ward, during the
40-21 term of the guardianship;
40-22 (2) the disposition made of the property, rents,
40-23 revenues, and profits;
40-24 (3) the expenses and debts against the estate that
40-25 remain unpaid, if any;
40-26 (4) the property of the estate that remains in the
40-27 hands of the guardian, if any; and
40-28 (5) other facts as appear necessary to a full and
40-29 definite understanding of the exact condition of the guardianship.
40-30 Sec. 750. PROCEDURE IN CASE OF NEGLECT OR FAILURE TO FILE
40-31 FINAL ACCOUNT OR REPORT. (a) If a guardian charged with the duty
40-32 of filing a final account or report fails or neglects so to do at
40-33 the proper time, the court may, on the court's own motion, or on
40-34 the written complaint of the emancipated ward or anyone interested
40-35 in the ward or the ward's estate, shall cause the guardian to be
40-36 cited to appear and present the account or report within the time
40-37 specified in the citation.
40-38 (b) If a written complaint has not been filed by anyone
40-39 interested in the guardianship of a person or estate of a minor or
40-40 deceased ward, the court may, on or after the third anniversary
40-41 after the date of the death of the ward or after the date the minor
40-42 reaches the age of majority, remove the estate from the court's
40-43 active docket without a final accounting and without appointing a
40-44 successor personal representative.
40-45 (c) If a complaint has not been filed by anyone interested
40-46 in the estate of a ward whose whereabouts are unknown to the court,
40-47 the court may, on or after the fourth anniversary after the ward's
40-48 whereabouts became unknown to the court, remove the estate from the
40-49 court's active docket without a final accounting and without
40-50 appointing a successor personal representative.
40-51 Sec. 751. CITATION ON PRESENTATION OF ACCOUNT FOR FINAL
40-52 SETTLEMENT. (a) On the filing of an account for final settlement
40-53 by a guardian of the estate of a ward, citation must contain a
40-54 statement that the final account has been filed, the time and place
40-55 when it will be considered by the court, and a statement requiring
40-56 the person cited to appear and contest the final account if the
40-57 person determines it is proper. The county clerk shall issue the
40-58 citation to the following persons and in the manner provided by
40-59 this section.
40-60 (b) If a ward is a living resident of this state who is 14
40-61 years of age or older, and the ward's residence is known, the ward
40-62 shall be cited by personal service, unless the ward, in person or
40-63 by attorney, by writing filed with the clerk, waives the issuance
40-64 and personal service of citation.
40-65 (c) If one who has been a ward is deceased, the ward's
40-66 executor or administrator, if one has been appointed, shall be
40-67 personally served, but no service is required if the executor or
40-68 administrator is the same person as the guardian.
40-69 (d) If a ward's residence is unknown, or if the ward is a
40-70 nonresident of this state, or if the ward is deceased and no
41-1 representative of the ward's estate has been appointed and
41-2 qualified in this state, the citation to the ward or to the ward's
41-3 estate shall be by publication, unless the court by written order
41-4 directs citation by posting.
41-5 (e) If the court deems further additional notice necessary,
41-6 it shall require the additional notice by written order. In its
41-7 discretion, the court may allow the waiver of notice of an account
41-8 for final settlement in a guardianship proceeding.
41-9 Sec. 752. COURT ACTION. (a) On being satisfied that
41-10 citation has been duly served on all persons interested in the
41-11 estate, the court shall examine the account for final settlement
41-12 and the vouchers accompanying the account. After hearing all
41-13 exceptions or objections to the account and evidence in support of
41-14 or against the account, the court shall audit and settle the same,
41-15 and restate it if that is necessary.
41-16 (b) On final settlement of an estate, if there is any part
41-17 of the estate remaining in the hands of the guardian, the court
41-18 shall order that it be delivered, in case of a ward, to the ward,
41-19 or in the case of a deceased ward, to the personal representative
41-20 of the deceased ward's estate if one has been appointed, or to any
41-21 other person legally entitled to the estate.
41-22 (c) If on final settlement of an estate there is no part of
41-23 the estate remaining in the hands of the guardian, the court shall
41-24 discharge the guardian from the guardian's trust and order the
41-25 estate closed.
41-26 (d) When the guardian of an estate has fully administered
41-27 the estate in accordance with this chapter and the orders of the
41-28 court and the guardian's final account has been approved, and the
41-29 guardian has delivered all of the estate remaining in the
41-30 guardian's hands to any person entitled to receive the estate, the
41-31 court shall enter an order discharging the guardian from the
41-32 guardian's trust, and declaring the estate closed.
41-33 Sec. 753. MONEY BECOMING DUE PENDING FINAL DISCHARGE. Money
41-34 or any other thing of value falling due to the estate or ward while
41-35 the account for final settlement is pending, other than money or
41-36 any other thing of value held under Section 703(c) of this code,
41-37 until the order of final discharge of the guardian is entered in
41-38 the minutes of the court, may be paid, delivered, or tendered to
41-39 the emancipated ward, the guardian, or the personal representative
41-40 of the deceased ward's estate, who shall issue a receipt for the
41-41 money or other thing of value, and the obligor or payor shall be
41-42 discharged of the obligation for all purposes.
41-43 Sec. 754. INHERITANCE TAXES MUST BE PAID. If the guardian
41-44 has been ordered to make payment of inheritance taxes under this
41-45 code, an estate of a deceased ward may not be closed unless the
41-46 final account shows and the court finds that all inheritance taxes
41-47 due and owing to this state with respect to all interests and
41-48 properties passing through the hands of the guardian have been
41-49 paid.
41-50 Sec. 755. APPOINTMENT OF ATTORNEY TO REPRESENT WARD. When
41-51 the ward is dead and there is no executor or administrator of the
41-52 ward's estate, or when the ward is a nonresident, or the ward's
41-53 residence is unknown, the court may appoint an attorney ad litem to
41-54 represent the interest of the ward in the final settlement with the
41-55 guardian, and shall allow the attorney reasonable compensation out
41-56 of the ward's estate for any services provided by the attorney.
41-57 Sec. 756. OFFSETS, CREDITS, AND BAD DEBTS. In the
41-58 settlement of any of the accounts of the guardian of an estate, all
41-59 debts due the estate that the court is satisfied could not have
41-60 been collected by due diligence, and that have not been collected,
41-61 shall be excluded from the computation.
41-62 Sec. 757. ACCOUNTING FOR LABOR OR SERVICES OF A WARD. The
41-63 guardian of a ward shall account for the reasonable value of the
41-64 labor or services of the ward of the guardian, or the proceeds of
41-65 the labor or services, if the labor or services have been rendered
41-66 by the ward, but the guardian is entitled to reasonable credits for
41-67 the board, clothing, and maintenance of the ward.
41-68 Sec. 758. PROCEDURE IF REPRESENTATIVE FAILS TO DELIVER
41-69 ESTATE. If a guardian, on final settlement or termination of the
41-70 guardianship of the estate, neglects to deliver to the person
42-1 entitled when legally demanded any portion of the estate or any
42-2 funds or money in the hands of the guardian ordered to be
42-3 delivered, a person entitled to the estate, funds, or money may
42-4 file with the clerk of the court a written complaint alleging the
42-5 fact of the guardian's neglect, the date of the person's demand,
42-6 and other relevant facts. After the person files a complaint under
42-7 this section, the clerk shall issue a citation to be served
42-8 personally on the guardian, appraising the guardian of the
42-9 complaint and citing the guardian to appear before the court and
42-10 answer, if the guardian desires, at the time designated in the
42-11 citation. If at the hearing the court finds that the citation was
42-12 duly served and returned and that the guardian is guilty of the
42-13 neglect charged, the court shall enter an order to that effect, and
42-14 the guardian shall be liable to the person who filed the complaint
42-15 in damages at the rate of 10 percent of the amount or appraised
42-16 value of the money or estate withheld, per month, for each month or
42-17 fraction of a month that the estate or money of a guardianship of
42-18 the estate, or on termination of guardianship of the person, or
42-19 funds is or has been withheld by the guardian after the date of
42-20 demand, which damages may be recovered in any court of competent
42-21 jurisdiction.
42-22 SUBPART D. REVOCATION OF LETTERS, DEATH, RESIGNATION, AND REMOVAL
42-23 Sec. 759. APPOINTMENT OF SUCCESSOR GUARDIAN. (a) In case
42-24 of death, a personal representative of the deceased person shall
42-25 account for, pay, and deliver to a person legally entitled to
42-26 receive the property, all the property belonging to the
42-27 guardianship that is entrusted to the care of the representative,
42-28 at the time and in the manner as the court orders. On a finding
42-29 that a necessity for the immediate appointment of a successor
42-30 guardian exists, the court may appoint a successor guardian without
42-31 citation or notice.
42-32 (b) If letters have been granted to a person, and another
42-33 person whose right to be appointed successor guardian is prior and
42-34 who has not waived the right and is qualified, applies for letters,
42-35 the letters previously granted shall be revoked and other letters
42-36 shall be granted to the applicant.
42-37 (c) If a person named in a will as guardian is not an adult
42-38 when the will is probated and letters in any capacity have been
42-39 granted to another person, the nominated guardian, on proof that
42-40 the nominated guardian has become an adult and is not otherwise
42-41 disqualified from serving as a guardian, is entitled to have the
42-42 former letters revoked and appropriate letters granted to the
42-43 nominated guardian. If the will names two or more persons as
42-44 guardian, any one or more of whom are minors when the will is
42-45 probated and letters have been issued to the persons who are
42-46 adults, a minor, on becoming an adult, if not otherwise
42-47 disqualified, is permitted to qualify and receive letters.
42-48 (d) If a person named in a will as guardian was ill or
42-49 absent from the state when the testator died, or when the will was
42-50 proved, and for that reason could not present the will for probate
42-51 not later than the 30th day after the testator's death, or accept
42-52 and qualify as guardian not later than the 20th day after the date
42-53 the will was probated, the person may accept and qualify as
42-54 guardian not later than the 60th day after the person's return or
42-55 recovery from illness, on proof to the court that the person was
42-56 absent or ill. If the letters have been issued to another person,
42-57 the letters shall be revoked.
42-58 (e) If it is discovered after letters of guardianship have
42-59 been issued that the deceased person left a lawful will, the
42-60 letters shall be revoked and proper letters of guardianship issued
42-61 to a person entitled to receive the letters.
42-62 (f) Except when otherwise expressly provided in this
42-63 chapter, letters may not be revoked and other letters granted
42-64 except on application, and after personal service of citation on
42-65 the person, if living, whose letters are sought to be revoked, that
42-66 the person appear and show cause why the application should not be
42-67 granted.
42-68 (g) Money or any other thing of value falling due to a ward
42-69 while the office of the guardian is vacant may be paid, delivered,
42-70 or tendered to the clerk of the court for credit of the ward, and
43-1 the debtor, obligor, or payor shall be discharged of the obligation
43-2 for all purposes to the extent and purpose of the payment or
43-3 tender. If the clerk accepts the payment or tender, the clerk
43-4 shall issue a proper receipt for the payment or tender.
43-5 (h) The court may appoint as successor guardian a spouse,
43-6 parent, or child of a proposed ward who has been disqualified from
43-7 serving as guardian because of a litigation conflict under Section
43-8 681(4) of this code on removal of the conflict that caused the
43-9 initial disqualification if the spouse, parent, or child is
43-10 otherwise qualified to serve as a guardian.
43-11 Sec. 760. RESIGNATION. (a) A guardian of the estate who
43-12 wishes to resign the guardian's trust shall file with the clerk a
43-13 written application to the court to that effect, accompanied by a
43-14 full and complete exhibit and final account, duly verified, showing
43-15 the true condition of the guardianship estate entrusted to the
43-16 guardian's care. A guardian of the person who wishes to resign the
43-17 guardian's trust shall file with the clerk a written application to
43-18 the court to that effect, accompanied by a report setting forth the
43-19 information required in the annual report required under this
43-20 chapter, duly verified, showing the condition of the ward entrusted
43-21 to the guardian's care.
43-22 (b) If the necessity exists, the court may immediately
43-23 accept a resignation and appoint a successor but may not discharge
43-24 the person resigning as guardian of the estate or release the
43-25 person or the sureties on the person's bond until final order or
43-26 judgment is rendered on the final account of the guardian.
43-27 (c) On the filing of an application to resign, supported by
43-28 an exhibit and final account, the clerk shall call the application
43-29 to the attention of the judge, who shall set a date for a hearing
43-30 on the matter. The clerk shall then issue a citation to all
43-31 interested persons, showing that proper application has been filed
43-32 and the time and place set for hearing, at which time the
43-33 interested persons may appear and contest the exhibit and account
43-34 or report. The citation shall be posted, unless the court directs
43-35 that it be published.
43-36 (d) At the time set for hearing, unless it has been
43-37 continued by the court, if the court finds that citation has been
43-38 duly issued and served, the court shall proceed to examine the
43-39 exhibit and account or report and hear all evidence for and against
43-40 the exhibit, account, or report and shall, if necessary, restate,
43-41 and audit and settle the exhibit, account, or report. If the court
43-42 is satisfied that the matters entrusted to the applicant have been
43-43 handled and accounted for in accordance with the law, the court
43-44 shall enter an order of approval and require that the estate
43-45 remaining in the possession of the applicant, if any, be delivered
43-46 to the person entitled by law to receive it. A guardian of the
43-47 person is required to comply with all orders of the court
43-48 concerning the ward of the guardian.
43-49 (e) A resigning guardian may not be discharged until the
43-50 application has been heard, the exhibit and account or report
43-51 examined, settled, and approved, and the guardian has satisfied the
43-52 court that the guardian has delivered the estate, if there is any
43-53 part of the estate remaining in the possession of the guardian, or
43-54 has complied with all orders of the court with relation to the
43-55 guardian's trust.
43-56 (f) When the resigning guardian has complied in all respects
43-57 with the orders of the court, an order shall be made accepting the
43-58 resignation, discharging the applicant, and, if the applicant is
43-59 under bond, the sureties of the guardian.
43-60 Sec. 761. REMOVAL. (a) The court, on its own motion or on
43-61 motion of any interested person, including the ward, and without
43-62 notice, may remove any guardian, appointed under this chapter, who:
43-63 (1) neglects to qualify in the manner and time
43-64 required by law;
43-65 (2) fails to return within 90 days after
43-66 qualification, unless the time is extended by order of the court,
43-67 an inventory of the property of the guardianship estate and list of
43-68 claims that have come to the guardian's knowledge;
43-69 (3) having been required to give a new bond, fails to
43-70 do so within the time prescribed;
44-1 (4) absents himself from the state for a period of
44-2 three months at one time without permission of the court, or
44-3 removes from the state;
44-4 (5) cannot be served with notices or other processes
44-5 because the guardian's whereabouts are unknown, or because the
44-6 guardian is eluding service;
44-7 (6) has misapplied, embezzled, or removed from the
44-8 state, or is about to misapply, embezzle, or remove from the state,
44-9 all or any part of the property committed to the guardian's care;
44-10 or
44-11 (7) has cruelly treated a ward, or has neglected to
44-12 educate or maintain the ward as liberally as the means of the ward
44-13 and the condition of the ward's estate permit.
44-14 (b) The court may remove a personal representative under
44-15 Subsection (a)(6) or (7) of this section only on the presentation
44-16 of clear and convincing evidence given under oath.
44-17 (c) The court may remove a guardian on its own motion, or on
44-18 the complaint of an interested person, after the guardian has been
44-19 cited by personal service to answer at a time and place set in the
44-20 notice, when:
44-21 (1) sufficient grounds appear to support belief that
44-22 the guardian has misapplied, embezzled, or removed from the state,
44-23 or that the guardian is about to misapply, embezzle, or remove from
44-24 the state, all or any part of the property committed to the care of
44-25 the guardian;
44-26 (2) the guardian fails to return any account or report
44-27 that is required by law to be made;
44-28 (3) the guardian fails to obey any proper order of the
44-29 court having jurisdiction with respect to the performance of the
44-30 guardian's duties;
44-31 (4) the guardian is proved to have been guilty of
44-32 gross misconduct or mismanagement in the performance of the duties
44-33 of the guardian;
44-34 (5) the guardian becomes incapacitated, or is
44-35 sentenced to the penitentiary, or from any other cause becomes
44-36 incapable of properly performing the duties of the guardian's
44-37 trust;
44-38 (6) as guardian of the person, the guardian cruelly
44-39 treats the ward, or neglects to educate or maintain the ward as
44-40 liberally as the means of the ward's estate and the ward's ability
44-41 or condition permit;
44-42 (7) the guardian interferes with the ward's progress
44-43 or participation in programs in the community; or
44-44 (8) the guardian fails to comply with the requirements
44-45 of Section 126 of this code.
44-46 (d) The order of removal shall state the cause of the
44-47 removal. It must require that any letters issued to the person who
44-48 is removed shall, if the removed person has been personally served
44-49 with citation, be surrendered and that all those letters be
44-50 cancelled of record, whether or not delivered. It must further
44-51 require, as to all the estate remaining in the hands of a removed
44-52 person, delivery of the estate to the person or persons entitled to
44-53 the estate, or to one who has been appointed and has qualified as
44-54 successor guardian, and as to the person of a ward, that control be
44-55 relinquished as required in the order.
44-56 Sec. 762. REINSTATEMENT AFTER REMOVAL. (a) Not later than
44-57 the 10th day after the date the court signs the order of removal, a
44-58 personal representative who is removed under Subsection (a)(6) or
44-59 (7), Section 761, of this code may file an application with the
44-60 court for a hearing to determine whether the personal
44-61 representative should be reinstated.
44-62 (b) On the filing of an application for a hearing under this
44-63 section, the court clerk shall issue a notice stating that the
44-64 application for reinstatement was filed, the name of the ward or
44-65 decedent, and the name of the applicant. The clerk shall issue the
44-66 notice to the applicant, the ward, a person interested in the
44-67 welfare of the ward, the decedent's estate, or the ward's estate,
44-68 and, if applicable, to a person who has control of the care and
44-69 custody of the ward. The notice must cite all persons interested
44-70 in the estate or welfare of the ward to appear at the time and
45-1 place stated in the notice if they wish to contest the application.
45-2 (c) If, at the conclusion of a hearing under this section,
45-3 the court is satisfied by a preponderance of the evidence that the
45-4 applicant did not engage in the conduct that directly led to the
45-5 applicant's removal, the court shall set aside an order appointing
45-6 a successor representative, if any, and shall enter an order
45-7 reinstating the applicant as personal representative of the ward or
45-8 estate.
45-9 (d) If the court sets aside the appointment of a successor
45-10 representative under this section, the court may require the
45-11 successor representative to prepare and file, under oath, an
45-12 accounting of the estate and to detail the disposition the
45-13 successor has made of the property of the estate.
45-14 Sec. 763. ADDITIONAL POWERS OF SUCCESSOR GUARDIAN. In
45-15 addition, a successor guardian may make himself, and may be made, a
45-16 party to a suit prosecuted by or against the predecessor of the
45-17 successor guardian. The successor guardian may settle with the
45-18 predecessor and receive and receipt for all the portion of the
45-19 estate as remains in the hands of the successor guardian. The
45-20 successor guardian may bring suit on the bond or bonds of the
45-21 predecessor in the guardian's own name and capacity for all the
45-22 estate that came into the hands of the predecessor and has not been
45-23 accounted for by the predecessor.
45-24 Sec. 764. SUBSEQUENT GUARDIANS SUCCEED TO PRIOR RIGHTS AND
45-25 DUTIES. Whenever a guardian shall accept and qualify after letters
45-26 of guardianship are granted on the estate, the guardian shall, in
45-27 like manner, succeed to the previous guardian, and the guardian
45-28 shall administer the estate in like manner as if the administration
45-29 by the guardian were a continuation of the former one.
45-30 Sec. 765. SUCCESSORS' RETURN OF INVENTORY, APPRAISEMENT, AND
45-31 LIST OF CLAIMS. A successor guardian who has qualified to succeed
45-32 a prior guardian shall make and return to the court an inventory,
45-33 appraisement, and list of claims of the estate, not later than 90
45-34 days after the date of qualification, in the same manner as is
45-35 required of an original appointee. The successor guardian shall in
45-36 like manner as is required of an original appointee return
45-37 additional inventories, appraisements, and lists of claims. In all
45-38 orders appointing a successor guardian, the court shall appoint an
45-39 appraiser as in original appointments on the application of any
45-40 person interested in the estate.
45-41 SUBPART E. GENERAL DUTIES AND POWERS OF GUARDIANS
45-42 Sec. 767. POWERS AND DUTIES OF GUARDIANS OF THE PERSON. The
45-43 guardian of the person is entitled to the charge and control of the
45-44 person of the ward, and the duties of the guardian correspond with
45-45 the rights of the guardian. A guardian of the person has:
45-46 (1) the right to have physical possession of the ward
45-47 and to establish the ward's legal domicile;
45-48 (2) the duty of care, control, and protection of the
45-49 ward;
45-50 (3) the duty to provide the ward with clothing, food,
45-51 medical care, and shelter; and
45-52 (4) the power to consent to medical, psychiatric, and
45-53 surgical treatment other than the in-patient psychiatric commitment
45-54 of the ward.
45-55 Sec. 768. GENERAL POWERS AND DUTIES OF GUARDIAN OF THE
45-56 ESTATE. The guardian of the estate of a ward is entitled to the
45-57 possession and management of all property belonging to the ward, to
45-58 collect all debts, rentals, or claims that are due to the ward, to
45-59 enforce all obligations in favor of the ward, and to bring and
45-60 defend suits by or against the ward; but, in the management of the
45-61 estate, the guardian is governed by the provisions of this chapter.
45-62 It is the duty of the guardian of the estate to take care of and
45-63 manage the estate as a prudent person would manage the person's own
45-64 property. The guardian of the estate shall account for all rents,
45-65 profits, and revenues that the estate would have produced by such
45-66 prudent management.
45-67 Sec. 769. SUMMARY OF POWERS OF GUARDIAN OF PERSON AND
45-68 ESTATE. The guardian of both the person of and estate of a ward
45-69 has all the rights and powers and shall perform all the duties of
45-70 the guardian of the person and of the guardian of the estate.
46-1 Sec. 770. CARE OF WARD; COMMITMENT. (a) The guardian of an
46-2 adult may expend funds of the guardianship as provided by court
46-3 order to care for and maintain the incapacitated person. The
46-4 guardian may apply for residential care and services provided by a
46-5 public or private facility on behalf of an incapacitated person who
46-6 has decision-making ability if the person agrees to be placed in
46-7 the facility. The guardian shall report the condition of the
46-8 person to the court at regular intervals at least annually, unless
46-9 the court orders more frequent reports. If the person is receiving
46-10 residential care in a public or private residential care facility,
46-11 the guardian shall include in any report to the court a statement
46-12 as to the necessity for continued care in the facility.
46-13 (b) Except as provided by Subsection (c) or (d) of this
46-14 section, a guardian may not voluntarily admit an incapacitated
46-15 person to a public or private in-patient psychiatric facility or to
46-16 a residential facility operated by the Texas Department of Mental
46-17 Health and Mental Retardation for care and treatment. If care and
46-18 treatment in a psychiatric or a residential facility are necessary,
46-19 the person or the person's guardian may apply for services under
46-20 Section 593.027 or 593.028, Health and Safety Code, or apply to a
46-21 court to commit the person under Subtitle D, Title 7, Health and
46-22 Safety Code (Persons with Mental Retardation Act), Subtitle C,
46-23 Title 7, Health and Safety Code (Texas Mental Health Code), or
46-24 Chapter 462, Health and Safety Code.
46-25 (c) A guardian of a person younger than 16 years of age may
46-26 voluntarily admit an incapacitated person to a public or private
46-27 inpatient psychiatric facility for care and treatment.
46-28 (d) A guardian of a person may voluntarily admit an
46-29 incapacited person to a residential care facility for emergency
46-30 care or respite care under Section 593.027 or 593.028, Health and
46-31 Safety Code.
46-32 SUBPART F. SPECIFIC DUTIES AND POWERS OF GUARDIANS
46-33 Sec. 771. GUARDIAN OF ESTATE: POSSESSION OF PERSONAL
46-34 PROPERTY AND RECORDS. The guardian of an estate, immediately after
46-35 receiving letters of guardianship, shall collect and take into
46-36 possession the personal property, record books, title papers, and
46-37 other business papers of the ward and shall deliver the personal
46-38 property, books, or papers, of the ward to a person who is legally
46-39 entitled to that property when the guardianship has been closed or
46-40 a successor guardian has received letters.
46-41 Sec. 772. COLLECTION OF CLAIMS AND RECOVERY OF PROPERTY.
46-42 (a) Every guardian of an estate shall use ordinary diligence to
46-43 collect all claims and debts due the ward and to recover possession
46-44 of all property of the ward to which the ward has claim or title,
46-45 if there is a reasonable prospect of collecting the claims or of
46-46 recovering the property. If the guardian wilfully neglects to use
46-47 ordinary diligence, the guardian and the sureties on the guardian's
46-48 bond shall be liable, at the suit of any person interested in the
46-49 estate, for the use of the estate, for the amount of the claims or
46-50 for the value of the property that has been lost due to the
46-51 guardian's neglect.
46-52 (b) Except as provided by Subsection (c) of this section, a
46-53 guardian of an estate may enter into a contract to convey, or may
46-54 convey, a contingent interest in any property sought to be
46-55 recovered, not exceeding one-third thereof for services of
46-56 attorneys, subject only to the approval of the court in which the
46-57 estate is being administered.
46-58 (c) A guardian of an estate may convey or contract to convey
46-59 for services of attorneys a contingent interest that exceeds
46-60 one-third of the property sought to be recovered under this section
46-61 only on the approval of the court in which the estate is being
46-62 administered. The court must approve a contract entered into or
46-63 conveyance made under this section before an attorney performs any
46-64 legal services. A contract entered into or conveyance made in
46-65 violation of this section is void, unless the court ratifies or
46-66 reforms the contract or documents relating to the conveyance to the
46-67 extent necessary to cause the contract or conveyance to meet the
46-68 requirements of this section.
46-69 (d) In approving a contract or conveyance under Subsection
46-70 (b) or (c) of this section for services of an attorney, the court
47-1 shall consider:
47-2 (1) the time and labor that will be required, the
47-3 novelty and difficulty of the questions to be involved, and the
47-4 skill that will be required to perform the legal services properly;
47-5 (2) the fee customarily charged in the locality for
47-6 similar legal services;
47-7 (3) the value of property recovered or sought to be
47-8 recovered by the personal representative under this section;
47-9 (4) the benefits to the estate that the attorney will
47-10 be responsible for securing; and
47-11 (5) the experience and ability of the attorney who
47-12 will be performing the services.
47-13 (e) On satisfactory proof to the court, a guardian of an
47-14 estate is entitled to all necessary and reasonable expenses
47-15 incurred by the guardian in collecting or attempting to collect a
47-16 claim or debt owed to the estate or in recovering or attempting to
47-17 recover property to which the estate has a title or claim.
47-18 Sec. 773. SUIT BY GUARDIAN. A guardian appointed in this
47-19 state may institute suits for the recovery of personal property,
47-20 debts, or damages and suits for title to or possession of land or
47-21 for any right attached to or growing out of the same or for injury
47-22 or damage done. Judgment in those cases shall be conclusive but
47-23 may be set aside by any person interested for fraud or collusion on
47-24 the part of the guardian.
47-25 Sec. 774. EXERCISE OF POWER WITH OR WITHOUT COURT ORDER.
47-26 (a) On application, and if authorized by an order, the guardian of
47-27 the estate may renew or extend any obligation owed by or to the
47-28 ward. On written application to the court and when a guardian of
47-29 the estate deems it is in the interest of the estate, the guardian
47-30 may, if authorized by an order of the court:
47-31 (1) purchase or exchange property;
47-32 (2) take a claim or property for the use and benefit
47-33 of the estate in payment of a debt due or owing to the estate;
47-34 (3) compound a bad or doubtful debt due or owing to
47-35 the estate;
47-36 (4) make a compromise or a settlement in relation to
47-37 property or a claim in dispute or litigation; and
47-38 (5) compromise or pay in full any secured claim that
47-39 has been allowed and approved as required by law against the estate
47-40 by conveying to the holder of the secured claim the real estate or
47-41 personalty securing the claim, in full payment, liquidation, and
47-42 satisfaction of the claim, and in consideration of cancellation of
47-43 a note, deed of trust, mortgage, chattel mortgage, or other
47-44 evidence of a lien that secures the payment of the claim.
47-45 (b) The guardian of the estate of a person, without
47-46 application to or order of the court, may exercise the following
47-47 powers provided, however, that a guardian may apply and obtain an
47-48 order if doubtful of the propriety of the exercise of any such
47-49 power:
47-50 (1) release a lien on payment at maturity of the debt
47-51 secured by the lien;
47-52 (2) vote stocks by limited or general proxy;
47-53 (3) pay calls and assessments;
47-54 (4) insure the estate against liability in appropriate
47-55 cases;
47-56 (5) insure property of the estate against fire, theft,
47-57 and other hazards; and
47-58 (6) pay taxes, court costs, and bond premiums.
47-59 Sec. 775. POSSESSION OF PROPERTY HELD IN COMMON OWNERSHIP.
47-60 If the ward holds or owns any property in common, or as part owner
47-61 with another person, the guardian of the estate is entitled to
47-62 possession of the property of the ward held or owned in common with
47-63 a part owner in the same manner as another owner in common or joint
47-64 owner would be entitled.
47-65 Sec. 776. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF
47-66 WARD. (a) Subject to Section 777 of this code, the court may
47-67 direct the guardian of the person to expend, for the education and
47-68 maintenance of the guardian's ward, a sum in excess of the income
47-69 of the ward's estate. Otherwise, the guardian may not be allowed,
47-70 for the education and maintenance of the ward, more than the net
48-1 income of the estate. When different persons have the guardianship
48-2 of the person and estate of a ward, the guardian of the estate
48-3 shall pay to the guardian of the person a sum that is set by the
48-4 court, at a time specified by the court, for the education and
48-5 maintenance of the ward. If the guardian of the estate fails to
48-6 pay to the guardian of the person the sum set by the court, the
48-7 guardian of the estate shall be compelled to make the payment by
48-8 court order after the guardian is duly cited to appear.
48-9 (b) When a guardian has in good faith expended funds from
48-10 the corpus of the estate of the ward of the guardian for support
48-11 and maintenance for the ward under this section, and when it is not
48-12 convenient or possible for the guardian to first secure court
48-13 approval, if the proof is clear and convincing that the
48-14 expenditures were reasonable and proper, and are expenditures that
48-15 the court would have granted authority to make the expenditures out
48-16 of the corpus, and the ward received the benefits of the
48-17 expenditures, the court may approve the expenditures in the same
48-18 manner as if the expenditures were made by the guardian out of the
48-19 income from the ward's estate. An expenditure under this
48-20 subsection may not exceed $5,000 per ward during an annual
48-21 accounting period, unless the expenditure is made to a nursing home
48-22 in which case the court may ratify any amount.
48-23 Sec. 777. SUMS ALLOWED PARENTS FOR EDUCATION AND MAINTENANCE
48-24 OF MINOR WARD. (a) Except as provided by Subsection (b) of this
48-25 section, a parent who is the guardian of the person of a ward who
48-26 is 17 years of age or younger may not use the income or the corpus
48-27 from the ward's estate for the ward's support, education, or
48-28 maintenance.
48-29 (b) A court with proper jurisdiction may authorize the
48-30 guardian of the person to spend the income or the corpus from the
48-31 ward's estate to support, educate, or maintain the ward if the
48-32 guardian presents clear and convincing evidence to the court that
48-33 the ward's parents are unable without unreasonable hardship to pay
48-34 for all of the expenses related to the ward's support.
48-35 Sec. 778. TITLE OF WARDS NOT TO BE DISPUTED. A guardian or
48-36 the heirs, executors, administrators, or assigns of a guardian may
48-37 not dispute the right of the ward to any property that came into
48-38 the possession of the guardian as guardian of the ward, except
48-39 property that is recovered from the guardian or property on which
48-40 there is a personal action pending.
48-41 Sec. 779. OPERATION OF FARM, RANCH, FACTORY, OR OTHER
48-42 BUSINESS. If the ward owns a farm, ranch, factory, or other
48-43 business and if the farm, ranch, factory, or other business is not
48-44 required to be sold at once for the payment of debts or other
48-45 lawful purposes, the guardian of the estate on order of the court
48-46 shall carry on the operation of the farm, ranch, factory, or other
48-47 business, or cause the same to be done, or rent the same, as shall
48-48 appear to be for the best interests of the estate. In deciding,
48-49 the court shall consider the condition of the estate and the
48-50 necessity that may exist for the future sale of the property or
48-51 business for the payment of a debt, claim, or other lawful
48-52 expenditure and may not extend the time of renting any of the
48-53 property beyond what appears consistent with the maintenance and
48-54 education of a ward or the settlement of the estate of the ward.
48-55 Sec. 780. ADMINISTRATION OF PARTNERSHIP INTEREST BY
48-56 GUARDIAN. If the ward was a partner in a general partnership and
48-57 the articles of partnership provide that, on the incapacity of a
48-58 partner, the guardian of the estate of the partner is entitled to
48-59 the place of the incapacitated partner in the firm, the guardian
48-60 who contracts to come into the partnership shall, to the extent
48-61 allowed by law, be liable to a third person only to the extent of
48-62 the incapacitated partner's capital in the partnership and the
48-63 assets of the estate of the partner that are held by the guardian.
48-64 This section does not exonerate a guardian from liability for the
48-65 negligence of the guardian.
48-66 Sec. 781. BORROWING MONEY. (a) The guardian may mortgage
48-67 or pledge any real or personal property of a guardianship estate by
48-68 deed of trust or otherwise as security for an indebtedness, under
48-69 court order, when necessary for any of the following purposes:
48-70 (1) for the payment of any ad valorem, income, gift,
49-1 or transfer taxes due from a ward, regardless of whether the taxes
49-2 are assessed by a state, a political subdivision of the state, the
49-3 federal government, or a foreign country;
49-4 (2) for the payment of any expenses of administration,
49-5 including sums necessary for the operation of a business, farm, or
49-6 ranch owned by the estate;
49-7 (3) for the payment of any claims allowed and
49-8 approved, or established by suit, against the ward or the estate of
49-9 the ward;
49-10 (4) to renew and extend a valid, existing lien;
49-11 (5) to make improvements or repairs to the real estate
49-12 of the ward if:
49-13 (A) the real estate of the ward is not revenue
49-14 producing but could be made revenue producing by certain
49-15 improvements and repairs; or
49-16 (B) the revenue from the real estate could be
49-17 increased by making improvements or repairs to the real estate;
49-18 (6) court-authorized borrowing of money that the court
49-19 finds to be in the best interests of the ward for the purchase of a
49-20 residence for the ward or a dependent of the ward; and
49-21 (7) if the guardianship is kept open after the death
49-22 of the ward, funeral expenses of the ward and expenses of the
49-23 ward's last illness.
49-24 (b) When it is necessary to borrow money for any of the
49-25 purposes authorized under Subsection (a) of this section, or to
49-26 create or extend a lien on property of the estate as security, a
49-27 sworn application for the authority to borrow money shall be filed
49-28 with the court, stating fully and in detail the circumstances that
49-29 the guardian of the estate believes make necessary the granting of
49-30 the authority. On the filing of an application under this
49-31 subsection, the clerk shall issue and cause to be posted a citation
49-32 to all interested persons, stating the nature of the application
49-33 and requiring the interested persons to appear and show cause why
49-34 the application should not be granted.
49-35 (c) If the court is satisfied by the evidence adduced at the
49-36 hearing on the application that it is in the interest of the ward
49-37 or the ward's estate to borrow money under Subsection (b) of this
49-38 section, or to extend and renew an existing lien, the court shall
49-39 issue an order to that effect, setting out the terms and conditions
49-40 of the authority granted. The term of the loan or renewal shall be
49-41 for the length of time that the court determines to be for the best
49-42 interests of the ward or the ward's estate. If a new lien is
49-43 created on the property of a guardianship estate, the court may
49-44 require that the guardian's general bond be increased, or that an
49-45 additional bond be given, for the protection of the guardianship
49-46 estate and its creditors, as for the sale of real property
49-47 belonging to the estate.
49-48 Sec. 782. POWERS, DUTIES, AND OBLIGATIONS OF GUARDIAN OF
49-49 PERSON ENTITLED TO GOVERNMENT FUNDS. (a) A guardian of the person
49-50 for whom it is necessary to have a guardian appointed to receive
49-51 funds from a governmental agency has the power to administer only
49-52 the funds received from the governmental agency, all earnings,
49-53 interest, or profits derived from the funds, and all property
49-54 acquired with the funds. The guardian has the power to receive the
49-55 funds and pay out the expenses of administering the guardianship
49-56 and the expenses for the support, maintenance, or education of the
49-57 ward or the ward's dependents. Expenditures for the support,
49-58 maintenance, or education of the ward or the ward's dependents may
49-59 not exceed $12,000 during any 12-month period without the court's
49-60 approval.
49-61 (b) All acts performed before September 1, 1993, by
49-62 guardians of the estate of a person for whom it is necessary to
49-63 have a guardian appointed to receive and disburse funds that are
49-64 due the person from a governmental source or agency are validated
49-65 if the acts are performed in conformance with orders of a court
49-66 that has venue with respect to the support, maintenance, and
49-67 education of the ward or the ward's dependents and the investment
49-68 of surplus funds of the ward under this chapter and if the validity
49-69 of the act is not an issue in a probate proceeding or civil lawsuit
49-70 that is pending on September 1, 1993.
50-1 SUBPART G. CLAIMS PROCEDURES
50-2 Sec. 783. NOTICE BY GUARDIAN OF APPOINTMENT. (a) Within
50-3 one month after receiving letters, personal representatives of
50-4 estates shall send to the comptroller of public accounts by
50-5 certified or registered mail if the decedent remitted or should
50-6 have remitted taxes administered by the comptroller of public
50-7 accounts and publish in some newspaper, printed in the county where
50-8 the letters were issued, if there be one, a notice requiring all
50-9 persons having claims against the estate being administered to
50-10 present the same within the time prescribed by law. The notice
50-11 must include the time of issuance of letters held by the
50-12 representative, the address to which claims may be presented, and
50-13 an instruction of the representative's choice that claims be
50-14 addressed in care of the representative, in care of the
50-15 representative's attorney, or in care of "Representative, Estate of
50-16 _________________" (naming the estate).
50-17 (b) A copy of the printed notice, with the affidavit of the
50-18 publisher, duly sworn to and subscribed before a proper officer, to
50-19 the effect that the notice was published as provided in this
50-20 chapter for the service of citation or notice by publication, shall
50-21 be filed in the court in which the cause is pending.
50-22 (c) When no newspaper is printed in the county, the notice
50-23 shall be posted and the return made and filed as required by this
50-24 chapter.
50-25 Sec. 784. NOTICE TO HOLDERS OF RECORDED CLAIMS. (a) Within
50-26 four months after receiving letters, the guardian of an estate
50-27 shall give notice of the issuance of the letters to each and every
50-28 person having a claim for money against the estate of a ward if the
50-29 claim is secured by a deed of trust, mortgage, or vendor's,
50-30 mechanic's or other contractor's lien on real estate belonging to
50-31 the estate.
50-32 (b) Within four months after receiving letters, the guardian
50-33 of an estate shall give notice of the issuance of the letters to
50-34 each person having an outstanding claim for money against the
50-35 estate of a ward if the guardian has actual knowledge of the claim.
50-36 (c) The notice stating the original grant of letter shall be
50-37 given by mailing the notice by certified mail or registered letter,
50-38 with return receipt requested, addressed to the record holder of
50-39 the indebtedness or claim at the last known post office address of
50-40 the record holder.
50-41 (d) A copy of each notice required by Subsection (a) of this
50-42 section, with the return receipt and an affidavit of the
50-43 representative, stating that the notice was mailed as required by
50-44 law, giving the name of the person to whom the notice was mailed,
50-45 if not shown on the notice or receipt, shall be filed in the court
50-46 from which letters were issued.
50-47 Sec. 785. ONE NOTICE SUFFICIENT; PENALTY FOR FAILURE TO GIVE
50-48 NOTICE. (a) If the notice required by Section 784 of this code
50-49 has been given by a former representative, or by one when several
50-50 representatives are acting, the notice given by the former
50-51 representative or co-representative is sufficient and need not be
50-52 repeated by any successor or co-representative.
50-53 (b) If the guardian fails to give the notice required in
50-54 other sections of this chapter or to cause the notices to be given,
50-55 the guardian and the sureties on the bond of the guardian shall be
50-56 liable for any damage that any person suffers because of the
50-57 neglect, unless it appears that the person had notice otherwise.
50-58 Sec. 786. Claims Against Wards. (a) A claim may be
50-59 presented to the guardian of the estate at any time when the estate
50-60 is not closed and when suit on the claim has not been barred by the
50-61 general statutes of limitation.
50-62 (b) A claim against a ward on which a suit is barred by a
50-63 general statute of limitation applicable to the claim may not be
50-64 allowed by a guardian. If allowed by the guardian and the court is
50-65 satisfied that limitation has run, the claim shall be disapproved.
50-66 Sec. 787. Tolling of General Statutes of Limitation. The
50-67 general statutes of limitation are tolled:
50-68 (1) by filing a claim that is legally allowed and
50-69 approved; or
50-70 (2) by bringing a suit on a rejected and disapproved
51-1 claim not later than the 90th day after the date of rejection or
51-2 disapproval.
51-3 Sec. 788. Claims Must Be Authenticated. Except as provided
51-4 by this section, with respect to the payment of an unauthenticated
51-5 claim by a guardian, a guardian of the estate may not allow and the
51-6 court may not approve a claim for money against the estate, unless
51-7 the claim is supported by an affidavit that the claim is just and
51-8 that all legal offsets, payments, and credits known to the affiant
51-9 have been allowed. If the claim is not founded on a written
51-10 instrument or account, the affidavit must also state the facts on
51-11 which the claim is founded. A photostatic copy of an exhibit or
51-12 voucher necessary to prove a claim under this section may be
51-13 offered with and attached to the claim instead of the original.
51-14 Sec. 789. When Defects of Form Are Waived. Any defect of
51-15 form or claim of insufficiency of exhibits or vouchers presented is
51-16 deemed waived by the guardian unless written objection to the form,
51-17 exhibit, or voucher is made not later than the 30th day after the
51-18 date of presentment of the claim and is filed with the county
51-19 clerk.
51-20 Sec. 790. Evidence Concerning Lost or Destroyed Claims. If
51-21 evidence of a claim is lost or destroyed, the claimant or a
51-22 representative of the claimant may make affidavit to the fact of
51-23 the loss or destruction, stating the amount, date, and nature of
51-24 the claim and when due, that the claim is just, that all legal
51-25 offsets, payments, and credits known to the affiant have been
51-26 allowed, and that the claimant is still the owner of the claim.
51-27 The claim must be proved by disinterested testimony taken in open
51-28 court, or by oral or written deposition, before the claim is
51-29 approved. If the claim is allowed or approved without the
51-30 affidavit or if the claim is approved without satisfactory proof,
51-31 the allowance or approval is void.
51-32 Sec. 791. Authentication of Claim by Others Than Individual
51-33 Owners. The cashier, treasurer, or managing official of a
51-34 corporation shall make the affidavit required to authenticate a
51-35 claim of the corporation. When an affidavit is made by an officer
51-36 of a corporation, or by an executor, administrator, guardian,
51-37 trustee, assignee, agent, or attorney, it is sufficient to state in
51-38 the affidavit that the person making the affidavit has made
51-39 diligent inquiry and examination and that the person believes that
51-40 the claim is just and that all legal offsets, payments, and credits
51-41 made known to the person making the affidavit have been allowed.
51-42 Sec. 792. Guardian's Payment of Unauthenticated Claims. A
51-43 guardian may pay an unauthenticated claim against the estate of the
51-44 guardian's ward that the guardian believes to be just, but the
51-45 guardian and the sureties on the bond of the guardian shall be
51-46 liable for the amount of any payment of the claim if the court
51-47 finds that the claim is not just.
51-48 Sec. 793. Method of Handling Secured Claims. (a) When a
51-49 secured claim against a ward is presented, the claimant shall
51-50 specify in the claim, in addition to all other matters required to
51-51 be specified in claims:
51-52 (1) whether the claim shall be allowed and approved as
51-53 a matured secured claim to be paid in due course of administration,
51-54 in which event it shall be so paid if allowed and approved; or
51-55 (2) whether the claim shall be allowed, approved, and
51-56 fixed as a preferred debt and lien against the specific property
51-57 securing the indebtedness and paid according to the terms of the
51-58 contract that secured the lien, in which event it shall be so
51-59 allowed and approved if it is a valid lien; provided, however, the
51-60 guardian may pay the claim prior to maturity if it is in the best
51-61 interests of the estate to do so.
51-62 (b) If a secured claim is not presented within the time
51-63 provided by law, it shall be treated as a claim to be paid in
51-64 accordance with Subsection (a)(2) of this section.
51-65 (c) When an indebtedness has been allowed and approved under
51-66 Subsection (a)(2) of this section, no further claim shall be made
51-67 against other assets of the estate because of the indebtedness, but
51-68 the claim remains a preferred lien against the property securing
51-69 the claim, and the property remains security for the debt in any
51-70 distribution or sale of the property before final maturity and
52-1 payment of the debt.
52-2 (d) If property that secures a claim allowed, approved, and
52-3 fixed under Subsection (a)(2) of this section is not sold or
52-4 distributed not later than the 12th month after the date letters of
52-5 guardianship are granted, the guardian of the estate shall promptly
52-6 pay all maturities that have accrued on the debt according to the
52-7 terms of the maturities and shall perform all the terms of any
52-8 contract securing the maturities. If the guardian defaults in the
52-9 payment or performance, the court, on motion of the claim holder,
52-10 shall require the sale of the property subject to the unmatured
52-11 part of the debt and apply the proceeds of the sale to the
52-12 liquidation of the maturities or, at the option of the claim
52-13 holder, a motion may be made in a like manner to require the sale
52-14 of the property free of the lien and to apply the proceeds to the
52-15 payment of the whole debt.
52-16 Sec. 794. Claims Providing for Attorney's Fees. If the
52-17 instrument that evidences or supports a claim provides for
52-18 attorney's fees, the claimant may include as a part of the claim
52-19 the portion of the fee that the claimant has paid or contracted to
52-20 pay to an attorney to prepare, present, and collect the claim.
52-21 Sec. 795. Depositing Claims With Clerk. A claim may also be
52-22 presented by depositing the claim, with vouchers and necessary
52-23 exhibits and affidavit attached to the claim, with the clerk. The
52-24 clerk, on receiving the claim, shall advise the guardian of the
52-25 estate or the guardian's attorney by letter mailed to the last
52-26 known address of the guardian of the deposit of the claim. If the
52-27 guardian fails to act on the claim within 30 days after it is
52-28 filed, the claim is presumed to be rejected. Failure of the clerk
52-29 to give notice as required under this section does not affect the
52-30 validity of the presentment or the presumption of rejection of the
52-31 claim because not acted on within the 30-day period.
52-32 Sec. 796. Memorandum of Allowance or Rejection of Claim.
52-33 When a duly authenticated claim against a guardianship estate is
52-34 presented to the guardian or filed with the clerk as provided by
52-35 this subpart, the guardian shall, not later than the 30th day after
52-36 the date the claim is presented or filed, endorse or annex to the
52-37 claim a memorandum signed by the guardian stating the time of
52-38 presentation or filing of the claim and that the guardian allows or
52-39 rejects the claim, or what portion of the claim the guardian allows
52-40 or rejects.
52-41 Sec. 797. Failure to Endorse or Annex Memorandum. The
52-42 failure of a guardian of an estate to endorse on or annex to a
52-43 claim presented to the guardian, or the failure of a guardian to
52-44 allow or reject the claim or portion of the claim within 30 days
52-45 after the claim was presented constitutes a rejection of the claim.
52-46 If the claim is later established by suit, the costs shall be taxed
52-47 against the guardian, individually, or the guardian may be removed
52-48 as in other cases of removal on the written complaint of any person
52-49 interested in the claim, after personal service of citation,
52-50 hearing, and proof.
52-51 Sec. 798. Claims Entered In Docket. After a claim against a
52-52 ward's estate has been presented to and allowed by the guardian,
52-53 either in whole or in part, the claim shall be filed with the
52-54 county clerk of the proper county who shall enter it on the claim
52-55 docket.
52-56 Sec. 799. Contest of Claims, Action by Court, and Appeals.
52-57 (a) Any person interested in a ward, at any time before the court
52-58 has acted on a claim, may appear and object in writing to the
52-59 approval of the claim, or any part of the claim. The parties are
52-60 entitled to process for witnesses, and the court shall hear proof
52-61 and render judgment as in ordinary suits.
52-62 (b) The court shall either approve in whole or in part or
52-63 reject a claim that has been allowed and entered on the claim
52-64 docket for a period of 10 days and shall at the same time classify
52-65 the claim.
52-66 (c) Although a claim may be properly authenticated and
52-67 allowed, if the court is not satisfied that it is just, the court
52-68 shall examine the claimant and the guardian under oath and hear
52-69 other evidence necessary to determine the issue. If after the
52-70 examination and hearing the court is not convinced that the claim
53-1 is just, the court shall disapprove the claim.
53-2 (d) When the court has acted on a claim, the court shall
53-3 endorse on or annex to the claim a written memorandum dated and
53-4 signed officially that states the exact action taken by the court
53-5 on the claim, whether the court approved or disapproved the claim
53-6 or approved in part or rejected in part the claim, and that states
53-7 the classification of the claim. An order under this subsection
53-8 has the force and effect of a final judgment.
53-9 (e) When a claimant or any person interested in a ward is
53-10 dissatisfied with the action of the court on a claim, the claimant
53-11 or person interested may appeal the action to the courts of
53-12 appeals, as from other judgments of the county court in probate
53-13 matters.
53-14 Sec. 800. SUIT ON REJECTED CLAIM. When a claim or a part of
53-15 a claim has been rejected by the guardian, the claimant shall
53-16 institute suit on the claim in the court of original probate
53-17 jurisdiction in which the guardianship is pending or in any other
53-18 court of proper jurisdiction not later than the 90th day after the
53-19 date of the rejection of the claim or the claim is barred. When a
53-20 rejected claim is sued on, the endorsement made on or annexed to
53-21 the claim is taken to be true without further proof, unless denied
53-22 under oath. When a rejected claim or part of a claim has been
53-23 established by suit, no execution shall issue but the judgment
53-24 shall be certified not later than the 30th day after the date of
53-25 rendition if the judgment is from a court other than the court of
53-26 original probate jurisdiction, filed in the court in which the
53-27 cause is pending entered on the claim docket, classified by the
53-28 court, and handled as if originally allowed and approved in due
53-29 course of administration.
53-30 Sec. 801. Presentment of Claims a Prerequisite for Judgment.
53-31 A judgment may not be rendered in favor of a claimant on any claim
53-32 for money that has not been legally presented to the guardian of
53-33 the estate of the ward and rejected by the guardian or by the
53-34 court, in whole or in part.
53-35 Sec. 802. Costs of Suit With Respect to Claims. All costs
53-36 incurred in the probate court with respect to claims are taxed as
53-37 follows:
53-38 (1) if allowed and approved, the guardianship estate
53-39 shall pay the costs;
53-40 (2) if allowed, but disapproved, the claimant shall
53-41 pay the costs;
53-42 (3) if rejected, but established by suit, the
53-43 guardianship estate shall pay the costs;
53-44 (4) if rejected, but not established by suit, the
53-45 claimant shall pay the costs; or
53-46 (5) in suits to establish a claim after rejection in
53-47 part, if the claimant fails to recover judgment for a greater
53-48 amount than was allowed or approved, the claimant shall pay all
53-49 costs.
53-50 Sec. 803. Claims by Guardians. (a) A claim that a guardian
53-51 of the person or estate held against the ward at the time of the
53-52 appointment of the guardian, or that has since accrued, shall be
53-53 verified by affidavit as required in other cases and presented to
53-54 the clerk of the court in which the guardianship is pending. The
53-55 clerk shall enter the claim on the claim docket, after which it
53-56 shall take the same course as other claims.
53-57 (b) When a claim by a guardian has been filed with the court
53-58 within the required time, the claim shall be entered on the claim
53-59 docket and acted on by the court in the same manner as in other
53-60 cases. When the claim has been acted on by the court, an appeal
53-61 from the judgment of the court may be taken as in other cases.
53-62 Sec. 804. Claims Not to Be Paid Unless Approved. Except as
53-63 provided for payment at the risk of a guardian of an
53-64 unauthenticated claim, a claim for money against the estate of a
53-65 ward or any part of a claim may not be paid until it has been
53-66 approved by the court or established by the judgment of a court of
53-67 competent jurisdiction.
53-68 Sec. 805. Order of Payment of Claims. (a) The guardian
53-69 shall pay a claim against the estate of the guardian's ward that
53-70 has been allowed and approved or established by suit, as soon as
54-1 practicable, in the following order:
54-2 (1) expenses for the care, maintenance, and education
54-3 of the ward or the ward's dependents;
54-4 (2) funeral expenses of the ward and expenses of the
54-5 ward's last illness, if the guardianship is kept open after the
54-6 death of the ward as provided under this chapter, except that any
54-7 claim against the estate of a ward that has been allowed and
54-8 approved or established by suit before the death of the ward shall
54-9 be paid before the funeral expenses and expenses of the last
54-10 illness;
54-11 (3) expenses of administration; and
54-12 (4) other claims against the ward or the ward's
54-13 estate.
54-14 (b) A claimant whose claim has not been paid may petition
54-15 the court for determination of the claim at any time before it is
54-16 barred by the applicable statute of limitations and on due proof
54-17 procure an order for its allowance and payment from the estate.
54-18 Sec. 806. Deficiency of Assets. When there is a deficiency
54-19 of assets to pay all claims of the same class, the claims in the
54-20 same class shall be paid pro rata, as directed by the court, and in
54-21 the order directed. A guardian may not be allowed to pay any
54-22 claims, whether the estate is solvent or insolvent, except with the
54-23 pro rata amount of the funds of the guardianship estate that have
54-24 come to hand.
54-25 Sec. 807. GUARDIAN NOT TO PURCHASE CLAIMS. A guardian may
54-26 not purchase for the guardian's own use or for any purposes
54-27 whatsoever a claim against the guardianship the guardian
54-28 represents. On written complaint by a person interested in the
54-29 guardianship estate and satisfactory proof of violation of this
54-30 provision, the court after citation and hearing shall enter its
54-31 order cancelling the claim and no part of the claim shall be paid
54-32 out of the guardianship. The judge may remove the guardian for a
54-33 violation of this section.
54-34 Sec. 808. PROCEEDS OF SALE OF MORTGAGED PROPERTY. When a
54-35 guardian has on hand the proceeds of a sale that has been made for
54-36 the satisfaction of a mortgage or other lien and the proceeds, or
54-37 any part of the proceeds, are not required for the payment of any
54-38 debts against the estate that have a preference over the mortgage
54-39 or other lien, the guardian shall pay the proceeds to a holder of
54-40 the mortgage or other lien. If the guardian fails to pay the
54-41 proceeds as required by this section, the holder, on proof of the
54-42 mortgage or other lien, may obtain an order from the court
54-43 directing the payment to be made.
54-44 Sec. 809. Liability for Nonpayment of Claims. (a) If a
54-45 guardian of an estate fails to pay on demand any money ordered by
54-46 the court to be paid to any person, except to the state treasury,
54-47 when there are funds of the guardianship estate available, the
54-48 person or claimant entitled to the payment, on affidavit of the
54-49 demand and failure to pay, is authorized to have execution issued
54-50 against the property of the guardianship for the amount due, with
54-51 interest and costs.
54-52 (b) On return of the execution not satisfied, or merely on
54-53 the affidavit of demand and failure to pay, the court may cite the
54-54 guardian and the sureties on the bond of the guardian to show cause
54-55 why the guardian or the sureties should not be held liable for the
54-56 debt, interest, costs, or damages. On return of citation duly
54-57 served, if good cause to the contrary is not shown, the court shall
54-58 render judgment against the guardian and sureties that are cited
54-59 under this subsection in favor of the holder of the claim for the
54-60 unpaid amount ordered to be paid or established by suit, with
54-61 interest and costs, and for damages on the amount neglected to be
54-62 paid, at the rate of five percent per month for each month or
54-63 fraction of a month that the payment was neglected to be paid after
54-64 demand was made for payment. The damages may be collected in any
54-65 court of competent jurisdiction.
54-66 SUBPART H. SALES
54-67 Sec. 811. Court Must Order Sales. Except as provided by
54-68 this subpart, the sale of any property of the ward may not be made
54-69 without an order of court authorizing the sale. The court may
54-70 order property sold for cash or on credit, at public auction or
55-1 privately, as it may consider most to the advantage of the estate,
55-2 except when otherwise specifically provided in this chapter.
55-3 Sec. 812. CERTAIN PERSONAL PROPERTY TO BE SOLD. (a) The
55-4 guardian of an estate, after approval of inventory and
55-5 appraisement, shall promptly apply for an order of the court to
55-6 sell at public auction or privately, for cash or on credit not
55-7 exceeding six months, all of the estate that is liable to perish,
55-8 waste, or deteriorate in value or that will be an expense or
55-9 disadvantage to the estate if kept. Property exempt from forced
55-10 sale, a specific legacy, or personal property necessary to carry on
55-11 a farm, ranch, factory, or any other business that it is thought
55-12 best to operate, may not be included in a sale under this section.
55-13 (b) In determining whether to order the sale of an asset
55-14 under Subsection (a) of this section, the court shall consider:
55-15 (1) the guardian's duty to take care of and manage the
55-16 estate as a person of ordinary prudence, discretion, and
55-17 intelligence would exercise in the management of the person's own
55-18 affairs; and
55-19 (2) whether the asset constitutes an asset that a
55-20 trustee is authorized to invest under Section 113.056 or Subchapter
55-21 F, Chapter 113, Property Code.
55-22 Sec. 813. Sales of Other Personal Property. On application
55-23 by the guardian of the estate or by any interested person, the
55-24 court may order the sale of any personal property of the estate not
55-25 required to be sold by Section 812 of this code, including growing
55-26 or harvested crops or livestock but not including exempt property,
55-27 if the court finds that the sale of the property would be in the
55-28 best interests of the ward or the ward's estate in order to pay
55-29 expenses of the care, maintenance, and education of the ward or the
55-30 ward's dependents, expenses of administration, allowances, or
55-31 claims against the ward or the ward's estate, and funeral expenses
55-32 of the ward and expenses of the ward's last illness, if the
55-33 guardianship is kept open after the death of the ward, from the
55-34 proceeds of the sale of the property. Insofar as possible,
55-35 applications and orders for the sale of personal property must
55-36 conform to the requirements set forth under this chapter for
55-37 applications and orders for the sale of real estate.
55-38 Sec. 814. Special Provisions Pertaining to Livestock. When
55-39 the guardian of an estate has in the guardian's possession any
55-40 livestock that the guardian deems necessary or to the advantage of
55-41 the estate to sell, the guardian may, in addition to any other
55-42 method provided by law for the sale of personal property, obtain
55-43 authority from the court in which the estate is pending to sell the
55-44 livestock through a bonded livestock commission merchant or a
55-45 bonded livestock auction commission merchant. On written and sworn
55-46 application by the guardian or by any person interested in the
55-47 estate that describes the livestock sought to be sold and that sets
55-48 out the reasons why it is deemed necessary or to the advantage of
55-49 the estate that the application be granted, the court may authorize
55-50 the sale. The court shall consider the application and may hear
55-51 evidence for or against the application, with or without notice, as
55-52 the facts warrant. If the application is granted, the court shall
55-53 enter its order to that effect and shall authorize delivery of the
55-54 livestock to any bonded livestock commission merchant or bonded
55-55 livestock auction commission merchant for sale in the regular
55-56 course of business. The commission merchant shall be paid his
55-57 usual and customary charges, not to exceed three percent of the
55-58 sale price, for the sale of the livestock. A report of the sale,
55-59 supported by a verified copy of the merchant's account of sale,
55-60 shall be made promptly by the guardian to the court, but no order
55-61 of confirmation by the court is required to pass title to the
55-62 purchaser of the livestock.
55-63 Sec. 815. Sales of Personal Property at Public Auction. All
55-64 sales of personal property at public auction shall be made after
55-65 notice has been issued by the guardian of the estate and posted as
55-66 in case of posting for original proceedings in probate, unless the
55-67 court shall otherwise direct.
55-68 Sec. 816. Sales of Personal Property on Credit. No more
55-69 than six months' credit may be allowed when personal property is
55-70 sold at public auction, based on the date of the sale. The
56-1 purchaser shall be required to give his note for the amount due,
56-2 with good and solvent personal security, before delivery of the
56-3 property can be made to the purchaser, but security may be waived
56-4 if delivery is not to be made until the note, with interest, has
56-5 been paid.
56-6 Sec. 817. SALE OF MORTGAGED PROPERTY. On the filing of a
56-7 written application, a creditor who holds a claim that is secured
56-8 by a valid mortgage or other lien and that has been allowed and
56-9 approved or established by suit may obtain from the court in which
56-10 the guardianship is pending an order that the property, or so much
56-11 of the property as necessary to satisfy the creditor's claim, shall
56-12 be sold. On the filing of the application, the clerk shall issue
56-13 citation requiring the guardian of the estate to appear and show
56-14 cause why an application filed under this section should not be
56-15 granted. If it appears to the court that it would be advisable to
56-16 discharge the lien out of the general assets of the estate or that
56-17 it be refinanced, the court may so order. Otherwise, the court
56-18 shall grant the application and order that the property be sold at
56-19 public or private sale, as the court considers best, as in ordinary
56-20 cases of sales of real estate.
56-21 Sec. 818. Sales of Personal Property Reported; Decree Vests
56-22 Title. All sales of personal property shall be reported to the
56-23 court. The laws regulating the confirmation or disapproval of
56-24 sales of real estate apply to sales of personal property, but no
56-25 conveyance shall be necessary. The decree confirming the sale of
56-26 personal property shall vest the right and title of the estate of
56-27 the ward in the purchaser who has complied with the terms of the
56-28 sale and shall be prima facie evidence that all requirements of the
56-29 law in making the sale have been met. The guardian of an estate
56-30 may, on request, issue a bill of sale without warranty to the
56-31 purchaser as evidence of title. The expense of the bill of sale if
56-32 requested is to be borne by the purchaser.
56-33 Sec. 819. Selection of Real Property Sold for Payment of
56-34 Debts. Real property of the ward that is selected to be sold for
56-35 the payment of expenses or claims shall be that property that the
56-36 court deems most advantageous to the guardianship to be sold.
56-37 Sec. 820. Application for Sale of Real Estate. An
56-38 application may be made to the court for an order to sell real
56-39 property of the estate when it appears necessary or advisable in
56-40 order to:
56-41 (1) pay expenses of administration, allowances, and
56-42 claims against the ward or the ward's estate, and to pay funeral
56-43 expenses of the ward and expenses of the ward's last illness, if
56-44 the guardianship is kept open after the death of the ward;
56-45 (2) make up the deficiency when the income of a ward's
56-46 estate, the personal property of the ward's estate, and the
56-47 proceeds of previous sales, are insufficient to pay for the
56-48 education and maintenance of the ward or to pay debts against the
56-49 estate;
56-50 (3) dispose of property of the ward's estate that
56-51 consists in whole or in part of an undivided interest in real
56-52 estate when it is deemed in the best interests of the estate to
56-53 sell the interest;
56-54 (4) dispose of real estate of a ward, any part of
56-55 which is nonproductive or does not produce sufficient revenue to
56-56 make a fair return on the value of the real estate, when the
56-57 improvement of the real estate with a view to making it productive
56-58 is not deemed advantageous or advisable and it appears that the
56-59 sale of the real estate and the investment of the money derived
56-60 from the sale of the real estate would be in the best interests of
56-61 the estate; or
56-62 (5) conserve the estate of a ward by selling mineral
56-63 interest or royalties on minerals in place owned by a ward.
56-64 Sec. 821. CONTENTS OF APPLICATION FOR SALE OF REAL ESTATE.
56-65 An application for the sale of real estate shall be in writing,
56-66 must describe the real estate or an interest in or part of the real
56-67 estate sought to be sold, and shall be accompanied by an exhibit,
56-68 verified by affidavit that shows fully and in detail:
56-69 (1) the condition of the estate;
56-70 (2) the charges and claims that have been approved or
57-1 established by suit, or that have been rejected and may be
57-2 established later;
57-3 (3) the amount of each claim that has been approved or
57-4 established by suit, or that has been rejected but may be
57-5 established later;
57-6 (4) the property of the estate remaining on hand
57-7 liable for the payment of those claims; and
57-8 (5) any other facts that show the necessity or
57-9 advisability of the sale.
57-10 Sec. 822. Setting of Hearing on Application. When an
57-11 application for the sale of real estate is filed, it shall
57-12 immediately be called to the attention of the judge by the clerk.
57-13 The judge shall designate in writing a day for hearing the
57-14 application, any opposition to the application, and any application
57-15 for the sale of other land, with the evidence pertaining to the
57-16 application. The judge may, by entries on the docket, continue the
57-17 hearing from time to time until the judge is satisfied concerning
57-18 the application.
57-19 Sec. 823. CITATION AND RETURN ON APPLICATION. On the filing
57-20 of an application for the sale of real estate under Section 820 of
57-21 this code and exhibit, the clerk shall issue a citation to all
57-22 persons interested in the guardianship that describes the land or
57-23 interest or part of the land or interest sought to be sold and that
57-24 requires the persons to appear at the time set by the court as
57-25 shown in the citation and show cause why the sale should not be
57-26 made, if they so elect. Service of citation shall be by posting.
57-27 Sec. 824. Opposition to Application. When an application
57-28 for an order of sale is made, a person interested in the
57-29 guardianship, before an order of sale is made by the court, may
57-30 file the person's opposition to the sale, in writing, or may make
57-31 application for the sale of other property of the estate.
57-32 Sec. 825. ORDER OF SALE. If satisfied on hearing that the
57-33 sale of the property of the guardianship described in the
57-34 application made under Section 820 of this code is necessary or
57-35 advisable, the court shall order the sale to be made. Otherwise,
57-36 the court may deny the application and, if the court deems best,
57-37 may order the sale of other property the sale of which would be
57-38 more advantageous to the estate. An order for the sale of real
57-39 estate must specify:
57-40 (1) the property to be sold, giving a description that
57-41 will identify the property;
57-42 (2) whether the property is to be sold at public
57-43 auction or at private sale, and, if at public auction, the time and
57-44 place of the sale;
57-45 (3) the necessity or advisability of the sale and its
57-46 purpose;
57-47 (4) except in cases in which no general bond is
57-48 required, that, having examined the general bond of the
57-49 representative of the estate, the court finds it to be sufficient
57-50 as required by law, or finds the bond to be insufficient and
57-51 specifies the necessary or increased bond;
57-52 (5) that the sale shall be made and the report
57-53 returned in accordance with law; and
57-54 (6) the terms of the sale.
57-55 Sec. 826. Procedure When Guardian Neglects to Apply for
57-56 Sale. When the guardian of an estate neglects to apply for an
57-57 order to sell sufficient property to pay the charges and claims
57-58 against the estate that have been allowed and approved or
57-59 established by suit, an interested person, on written application,
57-60 may cause the guardian to be cited to appear and make a full
57-61 exhibit of the condition of the estate, and show cause why a sale
57-62 of the property should not be ordered. On hearing an application
57-63 made under this section, if the court is satisfied that a sale of
57-64 the property is necessary or advisable in order to satisfy the
57-65 claims, it shall enter an order of sale as provided by Section 825
57-66 of this code.
57-67 Sec. 827. Permissible Terms of Sale of Real Estate.
57-68 (a) The real estate may be sold for cash, or for part cash and
57-69 part credit, or the equity in land securing an indebtedness may be
57-70 sold subject to the indebtedness, or with an assumption of the
58-1 indebtedness, at public or private sale, as appears to the court to
58-2 be in the best interests of the estate. When real estate is sold
58-3 partly on credit, the cash payment may not be less than one-fifth
58-4 of the purchase price, and the purchaser shall execute a note for
58-5 the deferred payments payable in monthly, quarterly, semiannual or
58-6 annual installments, of the amounts as appear to the court to be
58-7 for the best interests of the guardianship, to bear interest from
58-8 date at a rate of not less than four percent per annum, payable as
58-9 provided in the note. Default in the payment of principal or
58-10 interest, or any part of the payment when due, at the election of
58-11 the holder of the note, matures the whole debt. The note shall be
58-12 secured by vendor's lien retained in the deed and in the note on
58-13 the property sold and shall be further secured by deed of trust on
58-14 the property sold, with the usual provisions for foreclosure and
58-15 sale on failure to make the payments provided in the deed and
58-16 notes.
58-17 (b) When an estate owning real estate by virtue of
58-18 foreclosure of a vendor's lien or mortgage belonging to the estate
58-19 either by judicial sale or by a foreclosure suit, by sale under
58-20 deed of trust, or by acceptance of a deed in cancellation of a lien
58-21 or mortgage owned by the estate, and it appears to the court that
58-22 an application to redeem the property foreclosed on has been made
58-23 by the former owner of the real estate to any corporation or agency
58-24 created by any act of the Congress of the United States or of this
58-25 state in connection with legislation for the relief of owners of
58-26 mortgaged or encumbered homes, farms, ranches, or other real estate
58-27 and that it would be in the best interests of the estate to own
58-28 bonds of one of the above named federal or state corporations or
58-29 agencies instead of the real estate, then on proper application and
58-30 proof, the court may dispense with the provisions of credit sales
58-31 as provided by Subsection (a) of this section, and may order
58-32 reconveyance of the property to the former mortgage debtor, or
58-33 former owner, reserving vendor's lien notes for the total amount of
58-34 the indebtedness due or for the total amount of bonds that the
58-35 corporation or agency above named is under its rules and
58-36 regulations allowed to advance. On obtaining the order, it shall
58-37 be proper for the guardian to endorse and assign the notes so
58-38 obtained over to any one of the corporations or agencies above
58-39 named in exchange for bonds of that corporation or agency.
58-40 Sec. 828. Public Sale of Real Estate. (a) Except as
58-41 otherwise provided by this chapter, all public sales of real estate
58-42 shall be advertised by the guardian of the estate by a notice
58-43 published in the county in which the estate is pending, as provided
58-44 by this chapter for publication of notices or citations. A
58-45 reference in the notice shall be made to the order of sale, the
58-46 time, place, and the required terms of sale, and a brief
58-47 description of the property to be sold. A reference made under
58-48 this section does not have to contain field notes, but if the real
58-49 estate consists of rural property, the name of the original survey,
58-50 the number of acres, its locality in the county, and the name by
58-51 which the land is generally known must be contained in the
58-52 reference.
58-53 (b) All public sales of real estate shall be made at public
58-54 auction to the highest bidder.
58-55 (c) All public sales of real estate shall be made in the
58-56 county in which the guardianship proceedings are pending, at the
58-57 courthouse door of the county, or at another place in the county
58-58 where sales of real estate are specifically authorized to be made,
58-59 on the first Tuesday of the month after publication of notice has
58-60 been completed, between the hours of 10 a.m. and 4 p.m. If deemed
58-61 advisable by the court, the court may order the sale to be made in
58-62 the county in which the land is located, in which event notice
58-63 shall be published both in that county and in the county in which
58-64 the proceedings are pending.
58-65 (d) If a sale is not completed on the day advertised, the
58-66 sale may be continued from day to day by making an oral public
58-67 announcement of the continuance at the conclusion of the sale each
58-68 day. The continued sale is to be made within the same hours as
58-69 prescribed by Subsection (c) of this section. If sales are so
58-70 continued, the fact shall be shown in the report of sale made to
59-1 the court.
59-2 (e) When a person who bids off property of a guardianship
59-3 estate offered for sale at public auction fails to comply with the
59-4 terms of sale, the property shall be readvertised and sold without
59-5 any further order. The person who defaults shall be liable to pay
59-6 to the guardian of the estate, for the benefit of the estate, 10
59-7 percent of the amount of the person's bid and any deficiency in
59-8 price on the second sale. The guardian shall recover the amounts
59-9 by suit in any court in the county in which the sale was made that
59-10 has jurisdiction over the amount claimed.
59-11 Sec. 829. Private Sale of Real Estate. All private sales of
59-12 real estate shall be made in the manner the court directs in its
59-13 order of sale, and no further advertising, notice, or citation
59-14 concerning the sale shall be required unless the court shall direct
59-15 otherwise.
59-16 Sec. 830. Sales of Easements and Rights of Way. The
59-17 guardian may sell and convey easements and rights of way on, under,
59-18 and over the land of a guardianship estate that is being
59-19 administered under orders of a court, regardless of whether the
59-20 proceeds of the sale are required for payment of charges or claims
59-21 against the estate, or for other lawful purposes. The procedure
59-22 for the sale is the same as provided by law for a sale of real
59-23 property of wards at private sale.
59-24 Sec. 831. Guardian Purchasing Property of the Estate.
59-25 (a) Except as provided by Subsection (b) or (c) of this section,
59-26 the guardian of an estate may not purchase, directly or indirectly,
59-27 any property of the estate sold by the guardian, or by any
59-28 co-representative of a guardian.
59-29 (b) A guardian may purchase property from the estate in
59-30 compliance with the terms of a written executory contract signed by
59-31 the ward before the ward became incapacitated, including a contract
59-32 for deed, earnest money contract, buy/sell agreement, or stock
59-33 purchase or redemption agreement.
59-34 (c) After issuing the notice required by this subsection, a
59-35 guardian of an estate may purchase property from the estate on the
59-36 court's determination that the sale is in the best interest of the
59-37 estate. The guardian shall give notice by certified mail, return
59-38 receipt requested, unless the court requires another form of
59-39 notice, to each distributee of a deceased person's estate and to
59-40 each creditor whose claim remains unsettled after presenting a
59-41 claim within six months of the original grant of letters. In the
59-42 case of an application filed by the guardian of the estate of a
59-43 ward, the court shall appoint an attorney ad litem to represent the
59-44 ward with respect to the sale. The court may require additional
59-45 notice or it may allow for the waiver of the notice required for a
59-46 sale made under this subsection.
59-47 (d) If a purchase is made in violation of this section, a
59-48 person interested in the estate may file a written complaint with
59-49 the court in which the guardianship proceedings are pending. On
59-50 service of citation on the guardian and after hearing and proof,
59-51 the court shall declare the sale void, set aside the sale, and
59-52 order that the property be reconveyed to the estate. All costs of
59-53 the sale, protest, and suit, if found necessary, shall be adjudged
59-54 against the guardian.
59-55 Sec. 832. REPORT OF SALE. A sale of real property of an
59-56 estate shall be reported to the court that orders the sale not
59-57 later than the 30th day after the date the sale is made. A report
59-58 must be in writing, sworn to, filed with the clerk, and noted on
59-59 the probate docket. A report made under this section must contain:
59-60 (1) the date of the order of sale;
59-61 (2) a description of the property sold;
59-62 (3) the time and place of sale;
59-63 (4) the name of the purchaser;
59-64 (5) the amount for which each parcel of property or
59-65 interest in the parcel of property was sold;
59-66 (6) the terms of the sale, and whether the sale was
59-67 private or made at a public auction; and
59-68 (7) whether the purchaser is ready to comply with the
59-69 order of sale.
59-70 Sec. 833. BOND ON SALE OF REAL ESTATE. If the guardian of
60-1 the estate is not required by this chapter to furnish a general
60-2 bond, the court may confirm the sale if the court finds the sale is
60-3 satisfactory and in accordance with law. Otherwise, before a sale
60-4 of real estate is confirmed, the court shall determine whether the
60-5 general bond of the guardian is sufficient to protect the estate
60-6 after the proceeds of the sale are received. If the court finds
60-7 the bond is sufficient, the court may confirm the sale. If the
60-8 general bond is found by the court to be insufficient, the court
60-9 may not confirm the sale until the general bond is increased to the
60-10 amount required by the court, or an additional bond is given and
60-11 approved by the court. The increase in the amount of the bond, or
60-12 the additional bond, shall be equal to the amount for which the
60-13 real estate is sold in addition to any additional sum the court
60-14 finds necessary and sets for the protection of the estate. If the
60-15 real estate sold is encumbered by a lien to secure a claim against
60-16 the estate, is sold to the owner or holder of the secured claim,
60-17 and is in full payment, liquidation, and satisfaction of the claim,
60-18 an increased general bond or additional bond may not be required
60-19 except for the amount of cash actually paid to the guardian of the
60-20 estate in excess of the amount necessary to pay, liquidate, and
60-21 satisfy the claim in full.
60-22 Sec. 834. ACTION OF COURT ON REPORT OF SALE. After the
60-23 expiration of five days from the date a report of sale is filed
60-24 under Section 832 of this code, the court shall inquire into the
60-25 manner in which the sale was made, hear evidence in support of or
60-26 against the report, and determine the sufficiency or insufficiency
60-27 of the guardian's general bond, if any has been required and given.
60-28 If the court is satisfied that the sale was for a fair price, was
60-29 properly made, and conforms with the law and the court has approved
60-30 any increased or additional bond that may have been found necessary
60-31 to protect the estate, the court shall enter a decree confirming
60-32 the sale showing conformity with other provisions of this chapter
60-33 relating to the sale and authorizing the conveyance of the property
60-34 to be made by the guardian of the estate on compliance by the
60-35 purchaser with the terms of the sale, detailing those terms. If
60-36 the court is not satisfied that the sale was for a fair price, was
60-37 properly made, and conforms with the law, the court shall issue an
60-38 order that sets the sale aside and order a new sale to be made, if
60-39 necessary. The action of the court in confirming or disapproving a
60-40 report of sale has the force and effect of a final judgment. Any
60-41 person interested in the guardianship estate or in the sale has the
60-42 right to have the decrees reviewed as in other final judgments in
60-43 probate proceedings.
60-44 Sec. 835. DEED CONVEYS TITLE TO REAL ESTATE. When real
60-45 estate is sold, the conveyance of real estate shall be by proper
60-46 deed that refers to and identifies the decree of the court that
60-47 confirmed the sale. The deed shall vest in the purchaser all
60-48 right, title, and interest of the estate to the property and shall
60-49 be prima facie evidence that the sale has met all applicable
60-50 requirements of the law.
60-51 Sec. 836. Delivery of Deed, Vendor's Lien, and Deed of Trust
60-52 Lien. After a sale is confirmed by the court and one purchaser has
60-53 complied with the terms of sale, the guardian of the estate shall
60-54 execute and deliver to the purchaser a proper deed conveying the
60-55 property. If the sale is made partly on credit, the vendor's lien
60-56 securing a purchase money note shall be expressly retained in the
60-57 deed and may not be waived. Before actual delivery of the deed to
60-58 the purchaser, the purchaser shall execute and deliver to the
60-59 guardian of the estate a vendor's lien note, with or without
60-60 personal sureties as the court has ordered and a deed of trust or
60-61 mortgage on the property as further security for the payment of the
60-62 note. On completion of the transaction, the guardian shall
60-63 promptly file and record in the appropriate records in the county
60-64 where the land is located the deed of trust or mortgage.
60-65 Sec. 837. PENALTY FOR NEGLECT. If the guardian of an estate
60-66 neglects to comply with Section 836 of this code or fails to file
60-67 the deed of trust securing the lien in the proper county, the
60-68 guardian, after complaint and citation, may be removed. The
60-69 guardian and the sureties on the bond of the guardian shall be held
60-70 liable for the use of the estate and for all damages resulting from
61-1 the neglect of the guardian. Damages under this section may be
61-2 recovered in a court of competent jurisdiction.
61-3 SUBPART I. HIRING AND RENTING
61-4 Sec. 839. Hiring or Renting Without Order of Court. The
61-5 guardian of an estate, without court order, may rent any real
61-6 property of the estate or hire out any personal property of the
61-7 estate for one year or less, either at public auction or privately,
61-8 as may be deemed in the best interests of the estate.
61-9 Sec. 840. LIABILITY OF GUARDIAN. If property of the
61-10 guardianship estate is hired or rented without court order, on the
61-11 sworn complaint of any person interested in the estate, the
61-12 guardian of the estate shall be required to account to the estate
61-13 for the reasonable value of the hire or rent of the property to be
61-14 ascertained by the court on satisfactory evidence.
61-15 Sec. 841. ORDER TO HIRE OR RENT. A guardian of an estate
61-16 may file a written application with the court setting forth the
61-17 property sought to be hired or rented. If the proposed rental
61-18 period is one year or more, the guardian of the estate shall file a
61-19 written application with the court setting forth the property
61-20 sought to be hired or rented. If the court finds that it would be
61-21 in the interests of the estate, the court shall grant the
61-22 application and issue an order that describes the property to be
61-23 hired or rented and states whether the hiring or renting shall be
61-24 at public auction or privately, whether for cash or on credit, and,
61-25 if on credit, the extent of the credit and the period for which the
61-26 property may be rented. If the property is to be hired or rented
61-27 at public auction, the court shall prescribe whether notice shall
61-28 be published or posted.
61-29 Sec. 842. PROCEDURE IN CASE OF NEGLECT TO RENT PROPERTY. A
61-30 person interested in a guardianship may file a written and sworn
61-31 complaint in a court in which the estate is pending and cause the
61-32 guardian of the estate to be cited to appear and show cause why the
61-33 guardian did not hire or rent any property of the estate. The
61-34 court, on hearing the complaint, shall make an order that is in the
61-35 best interests of the estate.
61-36 Sec. 843. PROPERTY HIRED OR RENTED ON CREDIT. When property
61-37 is hired or rented on credit, possession of the property may not be
61-38 delivered until the hirer or renter has executed and delivered to
61-39 the guardian of the estate a note with good personal security for
61-40 the amount of the hire or rental. If the property that is hired or
61-41 rented is delivered without the receipt of the security required
61-42 under this section, the guardian and the sureties on the bond of
61-43 the guardian shall be liable for the full amount of the hire or
61-44 rental. This section does not apply to a hire or rental that is
61-45 paid in installments in advance of the period of time to which they
61-46 relate.
61-47 Sec. 844. PROPERTY HIRED OR RENTED RETURNED IN GOOD
61-48 CONDITION. All property that is hired or rented, with or without a
61-49 court order, shall be returned to the possession of the
61-50 guardianship in as good a condition, reasonable wear and tear
61-51 excepted, as when the property was hired or rented. It shall be
61-52 the duty and responsibility of the guardian of the estate to see
61-53 that the property is returned as provided by this section, to
61-54 report to the court any loss, damage, or destruction of property
61-55 that is hired or rented under this chapter, and to ask for
61-56 authority to take action as is necessary. If the guardian fails to
61-57 act as required by this section, the guardian and the sureties on
61-58 the bond of the guardian shall be liable to the guardianship for
61-59 any loss or damage suffered through the fault of the guardian to
61-60 act as required under this section.
61-61 Sec. 845. REPORT OF HIRING OR RENTING. (a) When any
61-62 property of the guardianship estate with an appraised value of
61-63 $3,000 or more has been hired or rented, the guardian of the
61-64 estate, not later than the 30th day after the date of the hire or
61-65 rental, shall file with the court a sworn and written report that
61-66 states:
61-67 (1) the property involved and its appraised value;
61-68 (2) the date of hiring or renting, and whether at
61-69 public auction or privately;
61-70 (3) the name of the person who hired or rented the
62-1 property;
62-2 (4) the amount of the hiring or rental; and
62-3 (5) whether the hiring or rental was for cash or on
62-4 credit, and, if on credit, the length of time, the terms, and the
62-5 security taken for the hiring or rental.
62-6 (b) When the value of the property involved is less than
62-7 $3,000, the hiring or renting of the property may be reported in
62-8 the next annual or final account that is to be filed as required by
62-9 law.
62-10 Sec. 846. Court Action on Report. After five days from the
62-11 time the report of the hiring or rental is filed, the court shall
62-12 examine the report and shall approve and confirm the hiring or
62-13 rental by court order if the court finds the hire or rental just
62-14 and reasonable. If the court disapproves the hiring or rental, the
62-15 guardianship may not be bound and the court may order another
62-16 offering of the property for hire or rent in the same manner and
62-17 subject to the same rules provided in this chapter for property for
62-18 hire or rent. If the report has been approved by the court and it
62-19 later appears that, due to the fault of the guardian of the estate,
62-20 the property has not been hired or rented for its reasonable value,
62-21 the court shall cause the guardian of the estate and the sureties
62-22 on the bond of the guardian to appear and show cause why the
62-23 reasonable value of the hire or rental of the property should not
62-24 be adjudged against the guardian or sureties.
62-25 SUBPART J. MINERAL LEASES, POOLING OR UNITIZATION AGREEMENTS,
62-26 AND OTHER MATTERS RELATING TO MINERAL PROPERTIES
62-27 Sec. 847. MINERAL LEASES AFTER PUBLIC NOTICE. (a) In this
62-28 subpart:
62-29 (1) "Land" or "interest in land" includes minerals or
62-30 any interest in any of the minerals in place.
62-31 (2) "Mineral development" includes exploration, by
62-32 geophysical or by any other means, drilling, mining, developing,
62-33 and operating, and producing and saving oil, other liquid
62-34 hydrocarbons, gas (including all liquid hydrocarbons in the gaseous
62-35 phase in the reservoir), gaseous elements, sulphur, metals, and all
62-36 other minerals, solid or otherwise.
62-37 (3) "Property" includes land, minerals in place,
62-38 whether solid, liquid, or gaseous, as well as an interest of any
62-39 kind in the property, including royalty, owned by the estate.
62-40 (b) A guardian acting solely under an order of a court, may
62-41 be authorized by the court in which the guardianship proceeding is
62-42 pending to make, execute, and deliver leases, with or without
62-43 unitization clauses or pooling provisions, that provide for the
62-44 exploration for, and development and production of, oil, other
62-45 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
62-46 gaseous phase), metals, and other solid minerals, and other
62-47 minerals, or any of those minerals in place, belonging to the
62-48 estate.
62-49 (c) All leases authorized by Subsection (b) of this section,
62-50 with or without pooling provisions or unitization clauses, shall be
62-51 made and entered into pursuant to and in conformity with
62-52 Subsections (d)-(m) of this section.
62-53 (d) The guardian of the estate shall file a written
62-54 application with the court seeking authority to lease property of
62-55 the estate for mineral exploration and development, with or without
62-56 pooling provisions or unitization clauses. The name of any
62-57 proposed lessee or the terms, provisions, or form of any desired
62-58 lease do not need to be set out or suggested in the application.
62-59 The application shall:
62-60 (1) describe the property fully enough by reference to
62-61 the amount of acreage, the survey name or number, abstract number,
62-62 or other description that adequately identifies the property and
62-63 its location in the county in which the property is located;
62-64 (2) specify the interest thought to be owned by the
62-65 estate if less than the whole, but asking for authority to include
62-66 all interest owned by the estate if that is the intention; and
62-67 (3) set out the reasons why the particular property of
62-68 the estate should be leased.
62-69 (e) When an application to lease is filed, under this
62-70 section, the county clerk shall immediately call the filing of the
63-1 application to the attention of the court. The judge shall
63-2 promptly make and enter a brief order designating the time and
63-3 place for the hearing of the application. If the hearing does not
63-4 take place at the time originally designated by the court or by
63-5 timely order of continuance duly entered, the hearing shall be
63-6 automatically continued without further notice to the same hour or
63-7 time the following day, except Sundays and holidays on which the
63-8 county courthouse is officially closed to business, and from day to
63-9 day until the application is finally acted on and disposed of by
63-10 order of the court. No notice of the automatic continuance shall
63-11 be required.
63-12 (f) The guardian shall give written notice directed to all
63-13 persons interested in the estate of the time designated by the
63-14 judge for the hearing on the application to lease. The notice must
63-15 be dated, state the date on which the application was filed,
63-16 describe briefly the property sought to be leased, specify the
63-17 fractional interest sought to be leased if less than the entire
63-18 interest in the tract identified, and state the time and place
63-19 designated by the judge for the hearing. Exclusive of the date of
63-20 notice and of the date set for hearing, the guardian shall give at
63-21 least 10 days' notice by publishing in one issue of a newspaper of
63-22 general circulation in the county in which the proceeding is
63-23 pending or by posting if there is no newspaper in the county.
63-24 Posting under this section may be done at the guardian's instance.
63-25 The date of notice when published shall be the date the newspaper
63-26 bears.
63-27 (g) A court order authorizing any acts to be performed
63-28 pursuant to the application is null and void in the absence of:
63-29 (1) a written order originally designating a time and
63-30 place for hearing;
63-31 (2) a notice issued by the guardian of the estate in
63-32 compliance with the order; and
63-33 (3) proof of publication or posting of the notice as
63-34 required.
63-35 (h) At the time and place designated for the hearing, or at
63-36 any time to which the hearing has been continued as provided by
63-37 this section, the judge shall hear the application and require
63-38 proof as to the necessity or advisability of leasing for mineral
63-39 development the property described in the application and in the
63-40 notice. If the judge is satisfied that the application is in due
63-41 form, that notice has been duly given in the manner and for the
63-42 time required by law, that the proof of necessity or advisability
63-43 of leasing is sufficient, and that the application should be
63-44 granted, the judge shall enter an order so finding and authorizing
63-45 the making of one or more leases, with or without pooling
63-46 provisions or unitization clauses (with or without cash
63-47 consideration if deemed by the court to be in the best interest of
63-48 the estate) that affects and covers the property or portions of the
63-49 property described in the application. The order that authorizes
63-50 the leasing must also set out the following mandatory contents:
63-51 (1) the name of the lessee;
63-52 (2) the actual cash consideration, if any, to be paid
63-53 by the lessee;
63-54 (3) a finding that the guardian is exempt by law from
63-55 giving bond if that is a fact, and if the guardian is required to
63-56 give a bond, then a finding as to whether or not the guardian's
63-57 general bond on file is sufficient to protect the personal property
63-58 on hand, inclusive of any cash bonus to be paid; but if the court
63-59 finds the general bond is insufficient to meet these requirements,
63-60 the order shall show the amount of increased or additional bond
63-61 required to cover the deficiency;
63-62 (4) a complete exhibit copy, either unwritten or
63-63 printed, of each lease authorized to be made, either set out in,
63-64 attached to, incorporated by reference in, or made a part of the
63-65 order.
63-66 (i) An exhibit copy must show the name of the lessee, the
63-67 date of the lease, an adequate description of the property being
63-68 leased, the delay rental, if any, to be paid to defer commencement
63-69 of operations, and all other terms and provisions authorized. If
63-70 no date of the lease appears in the exhibit copy or in the court's
64-1 order, then the date of the court's order is considered for all
64-2 purposes as the date of the authorized lease. If the name and
64-3 address of a depository bank for receiving rental is not shown in
64-4 the exhibit copy, the name or address of the depository bank may be
64-5 inserted or caused to be inserted in the lease by the estate's
64-6 guardian at the time of its execution or at any other time
64-7 agreeable to the lessee, his successors, or assigns.
64-8 (j) On the hearing of an application for authority to lease,
64-9 if the court grants the authority to lease, the guardian of the
64-10 estate is fully authorized to make, not later than the 30th day
64-11 after the date of the judge's order, unless an extension is granted
64-12 by the court on a sworn application showing good cause, the lease
64-13 as evidenced by the true exhibit copies in accordance with the
64-14 order. Unless the guardian is not required to give a general
64-15 bond, a lease for which a cash consideration is required, though
64-16 ordered, executed, and delivered, is not valid unless the order
64-17 authorizing the lease actually makes a finding with respect to the
64-18 general bond. If the general bond has been found insufficient, the
64-19 lease is not valid until the bond has been increased or an
64-20 additional bond given with the sureties required by law as required
64-21 by the court order, has been approved by the judge, and has been
64-22 filed with the clerk of the court in which the proceeding is
64-23 pending. If two or more leases on different lands are authorized
64-24 by the same order, the general bond shall be increased or
64-25 additional bonds given to cover all. It is not necessary for the
64-26 judge to make any order confirming the leases.
64-27 (k) Every lease when executed and delivered in compliance
64-28 with the rules set out in this section shall be valid and binding
64-29 on the property or interest owned by the estate and covered by the
64-30 lease for the full duration of the term as provided in the lease
64-31 and is subject only to its terms and conditions even though the
64-32 primary term extends beyond the date when the estate is closed in
64-33 accordance with law. In order for a lease to be valid and binding
64-34 on the property or interest owned by the estate under this section,
64-35 the authorized primary term in the lease may not exceed five years,
64-36 subject to terms and provisions of the lease extending it beyond
64-37 the primary term by paying production, by bona fide drilling or
64-38 reworking operations, whether in or on the same or additional well
64-39 or wells with no cessation of operations of more than 60
64-40 consecutive days before production has been restored or obtained,
64-41 or by the provisions of the lease relating to a shut-in gas well.
64-42 (l) As to any existing valid mineral lease executed and
64-43 delivered in compliance with this chapter before September 1, 1993,
64-44 a provision of the lease continuing the lease in force after its
64-45 five-year primary term by a shut-in gas well is validated, unless
64-46 the validity of the provision is an issue in a lawsuit pending in
64-47 this state on September 1, 1993.
64-48 (m) Any oil, gas, and mineral lease executed by a guardian
64-49 under this chapter may be amended by an instrument that provides
64-50 that a shut-in gas well on the land covered by the lease or on land
64-51 pooled with all or some part of the land covered by the lease shall
64-52 continue the lease in force after its five-year primary term. The
64-53 instrument shall be executed by the guardian, with court approval,
64-54 and on the terms and conditions as may be prescribed in the
64-55 instrument.
64-56 Sec. 848. MINERAL LEASES AT PRIVATE SALE.
64-57 (a) Notwithstanding the mandatory requirements for setting a time
64-58 and place for hearing of an application to lease under Section 847
64-59 of this code and the issuance, service, and return of notice, the
64-60 court may authorize the making of oil, gas, and mineral leases at
64-61 private sale without public notice or advertising if, in the
64-62 opinion of the court, sufficient facts are set out in the
64-63 application to show that it would be more advantageous to the
64-64 estate that a lease be made privately and without compliance with
64-65 the mandatory requirements under Section 847 of this code. Leases
64-66 authorized under this section may include pooling provisions or
64-67 unitization clauses as in other cases.
64-68 (b) At any time after the expiration of five days and before
64-69 the expiration of the 10th day after the date of filing and without
64-70 an order setting the time and place of hearing, the court shall
65-1 hear the application to lease at a private sale. The court shall
65-2 inquire into the manner in which the proposed lease has been or
65-3 will be made and shall hear evidence for or against the
65-4 application. If the court is satisfied that the lease has been or
65-5 will be made for a fair and sufficient consideration and on fair
65-6 terms and has been or will be properly made in conformity with the
65-7 law, the court shall enter an order authorizing the execution of
65-8 the lease without the necessity of advertising, notice, or
65-9 citation. An order entered under this subsection must comply in
65-10 all other respects with the requirements essential to the validity
65-11 of mineral leases set out in this chapter as if advertising or
65-12 notice were required. An order that confirms a lease made at a
65-13 private sale does not need to be issued. A lease made at a private
65-14 sale is not valid until the increased or additional bond required
65-15 by the court, if any, has been approved by the court and filed with
65-16 the clerk of the court.
65-17 Sec. 849. Pooling or Unitization of Royalty or Minerals.
65-18 (a) When an existing lease on property owned by the estate does
65-19 not adequately provide for pooling or unitization, the court may
65-20 authorize the commitment of royalty or mineral interests in oil,
65-21 liquid hydrocarbons, gas (including all liquid hydrocarbons in the
65-22 gaseous phase in the reservoir), gaseous elements, and other
65-23 minerals or any one or more of them owned by the estate being
65-24 administered to agreements that provide for the operation of areas
65-25 as a pool or unit for the exploration, development, and production
65-26 of all those minerals, if the court finds that the pool or unit to
65-27 which the agreement relates will be operated in such a manner as to
65-28 protect correlative rights, or to prevent the physical or economic
65-29 waste of oil, liquid hydrocarbons, gas (including all liquid
65-30 hydrocarbons in the gaseous phase in the reservoir), gaseous
65-31 elements, or other mineral subject thereto, and that it is in the
65-32 best interests of the estate to execute the agreement. Any
65-33 agreement so authorized to be executed may provide that:
65-34 (1) operations incident to the drilling of or
65-35 production from a well on any portion of a pool or unit are deemed
65-36 for all purposes to be the conduct of operations on or production
65-37 from each separately owned tract in the pool or unit;
65-38 (2) any lease covering any part of the area committed
65-39 to a pool or unit shall continue in force in its entirety as long
65-40 as oil, gas, or other mineral subject to the agreement is produced
65-41 in paying quantities from any part of the pooled or unitized area,
65-42 as long as operations are conducted as provided in the lease on any
65-43 part of the pooled or unitized area, or as long as there is a
65-44 shut-in gas well on any part of the pooled or unitized area if the
65-45 presence of the shut-in gas well is a ground for continuation of
65-46 the lease on the terms of the lease;
65-47 (3) the production allocated by the agreement to each
65-48 tract included in a pool or unit shall, when produced, be deemed
65-49 for all purposes to have been produced from the tract by a well
65-50 drilled on the tract;
65-51 (4) the royalties provided for on production from any
65-52 tract or portion of a tract within the pool or unit shall be paid
65-53 only on that portion of the production allocated to the tract in
65-54 accordance with the agreement;
65-55 (5) the dry gas, before or after extraction of
65-56 hydrocarbons, may be returned to a formation underlying any lands
65-57 or leases committed to the agreement, and that no royalties are
65-58 required to be paid on the gas so returned; and
65-59 (6) gas obtained from other sources or another tract
65-60 of land may be injected into a formation underlying any land or
65-61 lease committed to the agreement, and that no royalties are
65-62 required to be paid on the gas so injected when same is produced
65-63 from the unit.
65-64 (b) Pooling or unitization, when not adequately provided for
65-65 by an existing lease on property owned by the estate, may be
65-66 authorized by the court in which the proceeding is pending pursuant
65-67 to and in conformity with Subsections (c)-(g) of this section.
65-68 (c) The guardian of the estate shall file with the county
65-69 clerk of the county in which the guardianship proceeding is pending
65-70 the guardian's written application for authority to enter into a
66-1 pooling or unitization agreement supplementing, amending, or
66-2 otherwise relating to, any existing lease covering property owned
66-3 by the estate, or to commit royalties or other interest in
66-4 minerals, whether subject to lease or not, to a pooling or
66-5 unitization agreement. The application must also describe the
66-6 property sufficiently as required in the original application to
66-7 lease, describe briefly the lease to which the interest of the
66-8 estate is subject, and set out the reasons the proposed agreement
66-9 concerning the property should be made. A true copy of the
66-10 proposed agreement shall be attached to the application and by
66-11 reference made a part of the application, but the agreement may not
66-12 be recorded in the minutes. The clerk shall immediately, after the
66-13 application is filed, call it to the attention of the judge.
66-14 (d) Notice of the filing of the application by advertising,
66-15 citation, or otherwise is not required.
66-16 (e) The judge may hold a hearing on the application at a
66-17 time that is agreeable to the parties to the proposed agreement.
66-18 The judge shall hear proof and be satisfied as to whether it is in
66-19 the best interests of the estate that the proposed agreement be
66-20 authorized. The hearing may be continued from day to day and from
66-21 time to time as the court finds to be necessary.
66-22 (f) If the court finds that the pool or unit to which the
66-23 agreement relates will be operated in such a manner as to protect
66-24 correlative rights or to prevent the physical or economic waste of
66-25 oil, liquid hydrocarbons, gas (including all liquid hydrocarbons in
66-26 the gaseous phase in the reservoir), gaseous elements, or other
66-27 mineral subject to the pool or unit, that it is in the best
66-28 interests of the estate that the agreement be executed, and that
66-29 the agreement conforms substantially with the permissible
66-30 provisions of Subsection (a) of this section, the court shall enter
66-31 an order setting out the findings made by the court and authorizing
66-32 execution of the agreement, with or without payment of cash
66-33 consideration according to the agreement. If cash consideration is
66-34 to be paid for the agreement, the court shall make a finding as to
66-35 the necessity of increased or additional bond as a finding is made
66-36 in the making of leases on payment of the cash bonus for the lease.
66-37 The agreement is not valid until the increased or additional bond
66-38 required by the court, if any, has been approved by the judge and
66-39 filed with the clerk. If the date is not stipulated in the
66-40 agreement, the date of the court's order shall be the effective
66-41 date of the agreement.
66-42 Sec. 850. Special Ancillary Instruments Executed Without
66-43 Court Order. As to any valid mineral lease or pooling or
66-44 unitization agreement, executed on behalf of the estate before
66-45 September 1, 1993, pursuant to provisions, or by a former owner of
66-46 land, minerals, or royalty affected by the lease, pooling, or
66-47 unitization agreement, the guardian of the estate that is being
66-48 administered, without further order of the court and without
66-49 consideration, may execute division orders, transfer orders,
66-50 instruments of correction, instruments designating depository banks
66-51 for the reception of delay rentals or shut-in gas well royalty to
66-52 accrue or become payable under the terms of the lease, or similar
66-53 instruments pertaining to the lease or agreement and the property
66-54 covered by the lease or agreement.
66-55 Sec. 851. Procedure When Guardian of Estate Neglects to
66-56 Apply for Authority. When the guardian of an estate neglects to
66-57 apply for authority to subject property of the estate to a lease
66-58 for mineral development, pooling, or unitization, or authority to
66-59 commit royalty or other interest in minerals to pooling or
66-60 unitization, any person interested in the estate, on written
66-61 application filed with the county clerk, may cause the guardian to
66-62 be cited to show cause why it is not in the best interests of the
66-63 estate for the lease to be made or an agreement to be entered into.
66-64 The clerk shall immediately call the filing of the application
66-65 under this section to the attention of the judge of the court in
66-66 which the guardianship proceeding is pending. The judge shall set
66-67 a time and place for a hearing on the application. The guardian of
66-68 the estate shall be cited to appear and show cause why the
66-69 execution of the lease or agreement should not be ordered. On
66-70 hearing and if satisfied from the proof that it would be in the
67-1 best interests of the estate, the court shall enter an order
67-2 requiring the guardian to file the guardian's application to
67-3 subject the property of the estate to a lease for mineral
67-4 development, with or without pooling or unitization provisions, or
67-5 to commit royalty or other minerals to unitization, as the case may
67-6 be. The procedures prescribed with respect to original application
67-7 to lease or with respect to original application for authority to
67-8 commit royalty or minerals to pooling or unitization shall be
67-9 followed.
67-10 Sec. 852. VALIDATION OF CERTAIN LEASES AND POOLING OR
67-11 UNITIZATION AGREEMENTS BASED ON PREVIOUS STATUTES. All leases on
67-12 the oil, gas, or other minerals existing on September 1, 1993,
67-13 belonging to the estates of minors or other incapacitated persons
67-14 and all agreements with respect to the pooling or unitization of
67-15 oil, gas, or other minerals or any interest in oil, gas, or other
67-16 minerals with like properties of others that have been authorized
67-17 by the court having venue, executed, and delivered by a guardian or
67-18 other fiduciary of the estate of a minor or incapacitated person in
67-19 substantial conformity to the rules set forth in statutes on
67-20 execution or delivery providing for only seven days' notice in some
67-21 instances and for a brief order designating a time and place for
67-22 hearing, are validated insofar as the period of notice or absence
67-23 of an order setting a time and place for hearing is concerned,
67-24 unless the length of time of the notice or the absence of the order
67-25 is an issue in a lease or pooling or unitization agreement that is
67-26 involved in a lawsuit pending on September 1, 1993.
67-27 SUBPART K. PARTITION OF WARD'S ESTATE IN REALTY
67-28 Sec. 853. PARTITION OF WARD'S INTEREST IN REALTY. (a) If a
67-29 ward owns an interest in real estate in common with another part
67-30 owner or one or more part owners, and if, in the opinion of the
67-31 guardian of the estate, it is in the best interests of the ward's
67-32 estate to partition the real estate, the guardian may agree on a
67-33 partition with the other part owners subject to the approval of the
67-34 court in which the guardianship proceeding is pending.
67-35 (b) When a guardian has reached an agreement with the other
67-36 part owners on how to partition the real estate, the guardian shall
67-37 file with the court an application to have the agreement approved.
67-38 The application filed by the guardian under this subsection shall
67-39 describe the land that is to be divided and shall state why it is
67-40 in the best interests of the ward's estate to partition the real
67-41 estate and shall show that the proposed partition agreement is fair
67-42 and just to the ward's estate.
67-43 (c) When the application required by Subsection (b) of this
67-44 section is filed, the county clerk shall immediately call the
67-45 filing of the application to the attention of the judge of the
67-46 court in which the guardianship proceeding is pending. The judge
67-47 shall designate a day to hear the application. The application
67-48 must remain on file at least 10 days before any orders are made,
67-49 and the judge may continue the hearing from time to time until the
67-50 judge is satisfied concerning the application.
67-51 (d) If the judge is satisfied that the proposed partition of
67-52 the real estate is in the best interests of the ward's estate, the
67-53 court shall enter an order approving the partition and directing
67-54 the guardian to execute the necessary agreement for the purpose of
67-55 carrying the order and partition into effect.
67-56 (e) When a guardian has executed an agreement or will
67-57 execute an agreement to partition any land in which the ward has
67-58 an interest without court approval as provided by this section, the
67-59 guardian shall file with the court in which the guardianship
67-60 proceedings are pending an application for the approval and
67-61 ratification of the partition agreement. The application must
67-62 refer to the agreement in such a manner that the court can fully
67-63 understand the nature of the partition and the land being divided.
67-64 The application must state that, in the opinion of the guardian,
67-65 the agreement is fair and just to the ward's estate and is in the
67-66 best interests of the estate. When the application is filed, a
67-67 hearing shall be held on the publication as provided by Subsection
67-68 (c) of this section. If the court is of the opinion that the
67-69 partition is fairly made and that the partition is in the best
67-70 interests of the ward's estate, the court shall enter an order
68-1 ratifying and approving the partition agreement. When the
68-2 partition is ratified and approved, the partition shall be
68-3 effective and binding as if originally executed after a court
68-4 order.
68-5 (f) If the guardian of the estate of a ward is of the
68-6 opinion that it is in the best interests of the ward's estate that
68-7 any real estate that the ward owns in common with others should be
68-8 partitioned, the guardian may bring a suit in the court in which
68-9 the guardianship proceeding is pending against the other part owner
68-10 or part owners for the partition of the real estate. The court, if
68-11 after hearing the suit is satisfied that the necessity for the
68-12 partition of the real estate exists, may enter an order
68-13 partitioning the real estate to the owner of the real estate.
68-14 SUBPART L. INVESTMENTS AND LOANS OF ESTATES OF WARDS
68-15 Sec. 855. INVESTMENTS WITHOUT COURT ORDER. (a) The
68-16 guardian of the estate may retain, without regard to
68-17 diversification of investments and without liability for any
68-18 depreciation or loss resulting from the retention, any property
68-19 received into a guardianship estate at its inception or added to
68-20 the estate by gift, devise, or inheritance or by mutation or
68-21 increase. A guardian of the estate is not relieved from the duty
68-22 to take care of and manage the estate as a person of ordinary
68-23 prudence, discretion, and intelligence would exercise in the
68-24 management of the person's own affairs.
68-25 (b) If the guardian of the estate has on hand money that
68-26 belongs to the ward that exceeds that amount of money that may be
68-27 necessary for the education and maintenance of the ward, the
68-28 guardian shall invest the money as follows:
68-29 (1) in bonds or other obligations of the United
68-30 States;
68-31 (2) in tax-supported bonds of this state;
68-32 (3) except as limited by Subsections (c) and (d) of
68-33 this section, in tax-supported bonds of a county, district,
68-34 political subdivision, or incorporated city or town in this state;
68-35 (4) in shares or share accounts of a building and loan
68-36 association organized under the laws of this state if the payment
68-37 of the shares or share accounts is insured by the Federal Savings
68-38 and Loan Insurance Corporation;
68-39 (5) in the shares or share accounts of a federal
68-40 savings and loan association domiciled in this state if the payment
68-41 of the shares or share accounts is insured by the Federal Savings
68-42 and Loan Insurance Corporation;
68-43 (6) in collateral bonds of companies incorporated
68-44 under the laws of this state, having a paid-in capital of
68-45 $1,000,000 or more, when the bonds are a direct obligation of the
68-46 company that issues the bonds and are specifically secured by first
68-47 mortgage real estate notes or other securities pledged with a
68-48 trustee; or
68-49 (7) in interest-bearing time deposits that may be
68-50 withdrawn on or before one year after demand in a bank that does
68-51 business in this state where the payment of the time deposits is
68-52 insured by the Federal Deposit Insurance Corporation.
68-53 (c) The bonds of a county, district, or subdivision may be
68-54 purchased only if the net funded debt of the county, district, or
68-55 subdivision that issues the bonds does not exceed 10 percent of the
68-56 assessed value of taxable property in the county, district, or
68-57 subdivision.
68-58 (d) The bonds of a city or town may be purchased only if the
68-59 net funded debt of the city or town does not exceed 10 percent of
68-60 the assessed value of taxable property in the city or town less
68-61 that part of the debt incurred for acquisition or improvement of
68-62 revenue-producing utilities, the revenues of which are not pledged
68-63 to support other obligations of the city or town.
68-64 (e) The limitations in Subsections (c) and (d) of this
68-65 section do not apply to bonds issued for road purposes in this
68-66 state under Section 52, Article III, of the Texas Constitution that
68-67 are supported by a tax unlimited as to rate or amount.
68-68 (f) In this section, "net funded debt" means the total
68-69 funded debt less sinking funds on hand.
68-70 Sec. 856. OTHER INVESTMENTS. (a) If a guardian of an
69-1 estate deems it is in the best interests of the ward the guardian
69-2 is appointed to represent to invest in or sell any property or
69-3 security in which a trustee is authorized to invest by either
69-4 Section 113.056 or Subchapter F, Chapter 113, of the Texas Trust
69-5 Code (Subtitle B, Title 9, Property Code), and the investment or
69-6 sale is not expressly permitted by other sections of this chapter,
69-7 the guardian may file a written application in the court in which
69-8 the guardianship is pending that asks for an order authorizing the
69-9 guardian to make the desired investment or sale and states the
69-10 reason why the guardian is of the opinion that the investment or
69-11 sale would be beneficial to the ward. A citation or notice is not
69-12 necessary under this subsection unless ordered by the court.
69-13 (b) On the hearing of the application filed under this
69-14 section, the court shall enter an order authorizing the investment
69-15 or sale if the court is satisfied that the investment or sale will
69-16 be beneficial to the ward. The court order must specify the
69-17 investment or sale to be made and contain other directions as the
69-18 court finds advisable.
69-19 (c) The procedure specified in this section does not need to
69-20 be followed in making an investment or sale specifically authorized
69-21 by other statutes and does not apply if a different procedure is
69-22 prescribed for an investment or sale by a guardian.
69-23 Sec. 857. INVESTMENT IN LIFE INSURANCE OR ANNUITIES.
69-24 (a) In this section, "life insurance company" means a stock or
69-25 mutual legal reserve life insurance company that maintains the full
69-26 legal reserves required under the laws of this state and that is
69-27 licensed by the State Board of Insurance to transact the business
69-28 of life insurance in this state.
69-29 (b) The guardian of the estate may invest in life, term, or
69-30 endowment insurance policies, or in annuity contracts, or both,
69-31 issued by a life insurance company or administered by the Veterans
69-32 Administration, subject to conditions and limitations in this
69-33 section.
69-34 (c) The guardian shall first apply to the court for an order
69-35 that authorizes the guardian to make the investment. The
69-36 application filed under this subsection must include a report that
69-37 shows:
69-38 (1) in detail the financial condition of the estate at
69-39 the time the application is made;
69-40 (2) the name and address of the life insurance company
69-41 from which the policy or annuity contract is to be purchased and
69-42 that the company is licensed by the State Board of Insurance to
69-43 transact that business in this state on the date the application is
69-44 filed, or that the policy or contract is administered by the
69-45 Veterans Administration;
69-46 (3) a statement of the face amount and plan of the
69-47 policy of insurance sought to be purchased and of the amount,
69-48 frequency, and duration of the annuity payments to be provided by
69-49 the annuity contract sought to be purchased;
69-50 (4) a statement of the amount, frequency, and duration
69-51 of the premiums required by the policy or annuity contract; and
69-52 (5) a statement of the cash value of the policy or
69-53 annuity contract at its anniversary nearest the 21st birthday of
69-54 the ward, assuming that all premiums to the anniversary are paid
69-55 and that there is no indebtedness against the policy or contract
69-56 incurred in accordance with its terms.
69-57 (d) An insurance policy must be issued on the life of the
69-58 ward, or the father, mother, spouse, child, brother, sister,
69-59 grandfather, or grandmother of the ward or a person in whose life
69-60 the ward may have an insurable interest.
69-61 (e) Only the ward, the ward's estate, or the father,
69-62 mother, spouse, child, brother, sister, grandfather, or grandmother
69-63 of the ward may be a beneficiary of the insurance policy and of the
69-64 death benefit of the annuity contract, and the ward must be the
69-65 annuitant in the annuity contract.
69-66 (f) The control of the policy or the annuity contract and of
69-67 the incidents of ownership in the policy or annuity contract is
69-68 vested in the guardian during the life and disability of the ward.
69-69 (g) The policy or annuity contract may not be amended or
69-70 changed during the life and disability of the ward except on
70-1 application to and order of the court.
70-2 (h) If a life, term, or endowment insurance policy or a
70-3 contract of annuity is owned by the ward when a proceeding for the
70-4 appointment of a guardian is begun, and it is made to appear that
70-5 the company issuing the policy or contract of annuity is a life
70-6 insurance company as defined by this section or the policy or
70-7 contract is administered by the Veterans Administration, the policy
70-8 or contract may be continued in full force and effect. All future
70-9 premiums may be paid out of surplus funds of the ward's estate.
70-10 The guardian shall apply to the court for an order to continue the
70-11 policy or contract, or both, according to the existing terms of the
70-12 policy or contract or to modify the policy or contract to fit any
70-13 new developments affecting the welfare of the ward. Before any
70-14 application filed under this subsection is granted, the guardian
70-15 shall file a report in the court that shows in detail the financial
70-16 condition of the ward's estate at the time the application is
70-17 filed.
70-18 (i) The court, if satisfied by the application and the
70-19 evidence adduced at the hearing that it is in the interests of the
70-20 ward to grant the application, shall enter an order granting the
70-21 application.
70-22 (j) A right, benefit, or interest that accrues under an
70-23 insurance or annuity contract that comes under the provisions of
70-24 this section shall become the exclusive property of the ward when
70-25 the ward's disability is terminated.
70-26 Sec. 858. LOANS AND SECURITY FOR LOANS. If, at any time,
70-27 the guardian of the estate has on hand money belonging to the ward
70-28 in an amount that is beyond what may be necessary for the education
70-29 and maintenance of the ward, the guardian may lend the money for
70-30 the highest rate of interest that can be obtained for the money.
70-31 The guardian shall take the note of the borrower for the money that
70-32 is loaned, secured by a mortgage with a power of sale on
70-33 unencumbered real estate located in this state worth at least twice
70-34 the amount of the note, or by collateral notes secured by vendor's
70-35 lien notes, as collateral, or the guardian may purchase vendor's
70-36 lien notes if at least one-half has been paid in cash or its
70-37 equivalent on the land for which the notes were given.
70-38 Sec. 859. GUARDIAN'S LIABILITY FOR LOANS. When the borrower
70-39 of money lent by the guardian of the estate under the court's
70-40 direction and on security approved by the court is unable to repay
70-41 the money or the security fails, the guardian of the estate is not
70-42 personally responsible for the money unless the guardian has been
70-43 guilty of fraud or negligence with respect to the loan or the
70-44 collection of the loan, in which case the guardian and the sureties
70-45 on the bond of the guardian shall be liable for whatever loss the
70-46 ward sustains because of the guardian's fraud or negligence.
70-47 Sec. 860. GUARDIAN'S INVESTMENTS IN REAL ESTATE. (a) When
70-48 the guardian of the estate of a ward thinks it is best for the ward
70-49 who has a surplus of money on hand to invest the money in real
70-50 estate, the guardian shall file a written application in the court
70-51 in which the guardianship is pending requesting a court order
70-52 authorizing the guardian to make the desired investment and
70-53 stating the reasons why the guardian is of the opinion that the
70-54 investment would be for the benefit of the ward.
70-55 (b) When an application is filed by the guardian under this
70-56 section, the judge's attention shall be called to the application,
70-57 and the judge shall make investigation as necessary to obtain all
70-58 the facts concerning the investment. The judge may not render an
70-59 opinion or make an order on the application until 10 days from the
70-60 date of the filing of the application have expired. On the hearing
70-61 of the application, if the court is satisfied that the investment
70-62 benefits the ward, the court shall issue an order that authorizes
70-63 the guardian to make the investment. The order shall specify the
70-64 investment to be made and contain other directions the court thinks
70-65 are advisable.
70-66 (c) When a contract is made for the investment of money in
70-67 real estate under court order, the guardian shall report the
70-68 contract in writing to the courts. The court shall inquire fully
70-69 into the contract. If satisfied that the investment will benefit
70-70 the estate of the ward and that the title of the real estate is
71-1 valid and unencumbered, the court may approve the contract and
71-2 authorize the guardian to pay over the money in performance of the
71-3 contract. The guardian may not pay any money on the contract until
71-4 the contract is approved by court order to that effect.
71-5 (d) When the money of the ward has been invested in real
71-6 estate, the title to the real estate shall be made to the ward.
71-7 The guardian shall inventory, appraise, manage, and account for the
71-8 real estate as other real estate of the ward.
71-9 Sec. 861. OPINION OF ATTORNEY WITH RESPECT TO LOANS AND
71-10 INVESTMENTS. When the guardian of the estate of a ward lends or
71-11 invests the money of the ward, the guardian may not pay over or
71-12 transfer any money in consummation of the loan or investment until
71-13 the guardian has submitted to a reputable attorney for examination
71-14 all bonds, notes, mortgages, documents, abstracts, and other papers
71-15 pertaining to the loan or investment and the guardian has received
71-16 a written opinion from the attorney that all papers pertaining to
71-17 the loan or investment are regular and that the title to the bonds,
71-18 notes, or real estate is good. The attorney making the examination
71-19 shall be paid a reasonable fee, not to exceed one percent of the
71-20 amount invested, unless one percent of the amount invested is less
71-21 than $25, in which event the fee shall be $25. The guardian
71-22 shall pay the fee out of the funds of the ward's estate. On a
71-23 loan, the attorney's fee shall be paid by the borrower. The
71-24 guardian may obtain a mortgagee's title insurance policy on any
71-25 real estate loan instead of an abstract and attorney's opinion.
71-26 Sec. 862. REPORT OF INVESTMENT AND LOANS. Not later than
71-27 the 30th day after the date money belonging to a ward's estate is
71-28 lent or invested, the guardian of the ward's estate shall report to
71-29 the court in writing, verified by affidavit, stating fully the
71-30 facts of the investment or loan, unless the investment or loan was
71-31 made pursuant to a court order.
71-32 Sec. 863. LIABILITY OF GUARDIAN FOR FAILURE TO LEND OR
71-33 INVEST FUNDS. If the guardian of the estate neglects to invest or
71-34 lend surplus money on hand at interest when the guardian can do so
71-35 by using reasonable diligence, the guardian shall be liable for the
71-36 principal and for the highest legal rate of interest on the
71-37 principal for the time the guardian neglects to invest or lend the
71-38 surplus money. The amount of principal and interest on the
71-39 principal may be recovered in a court of competent jurisdiction.
71-40 Sec. 864. REQUIRING GUARDIAN TO INVEST OR LEND SURPLUS
71-41 FUNDS. If there is any surplus money of the estate in the hands of
71-42 the guardian of the estate, the court, on its own motion or on
71-43 written complaint filed by any person, may cause the guardian to be
71-44 cited to appear and show cause why the surplus money should not be
71-45 invested or lent at interest. On the hearing of a complaint filed
71-46 under this section, the court shall enter an order as the law and
71-47 the facts require.
71-48 SUBPART M. TAX MOTIVATED AND CHARITABLE GIFTS
71-49 Sec. 865. POWER TO MAKE TAX-MOTIVATED GIFTS. (a) On
71-50 application of the guardian of the estate or any interested party
71-51 and after notice to all interested persons and to other persons as
71-52 directed by the court, the court, after hearing, may enter an order
71-53 that authorizes the guardian to apply the principal or income of
71-54 the ward's estate that is not required for the support of the ward
71-55 or the ward's family during the ward's lifetime toward the
71-56 establishment of an estate plan for the purpose of minimizing
71-57 income, estate, inheritance, or other taxes payable out of the
71-58 ward's estate on a showing that the ward will probably remain
71-59 incapacitated during the ward's lifetime. On the ward's behalf,
71-60 the court may authorize the guardian to make gifts, outright or in
71-61 trust, of the ward's personal property or real estate to or for the
71-62 benefit of:
71-63 (1) an organization to which charitable contributions
71-64 may be made under the Internal Revenue Code and in which it is
71-65 shown the ward would reasonably have an interest;
71-66 (2) the ward's heirs at law who are identifiable at
71-67 the time of the order;
71-68 (3) a devisee under the ward's last validly executed
71-69 will, if there is a will; and
71-70 (4) a person serving as guardian of the ward if the
72-1 person is eligible under either Subdivision (2) or (3) of this
72-2 subsection.
72-3 (b) The person making an application to the court under this
72-4 section shall outline the proposed estate plan and set forth all
72-5 the benefits that are to be derived from the estate plan. The
72-6 application must indicate that the planned disposition is
72-7 consistent with the ward's intentions if the ward's intentions can
72-8 be ascertained. If the ward's intentions cannot be ascertained,
72-9 the ward will be presumed to favor reduction in the incidence of
72-10 the various forms of taxation and the partial distribution of the
72-11 ward's estate as provided by this section.
72-12 (c) The court may appoint a guardian ad litem for the ward
72-13 or any interested party at any stage of the proceedings if it is
72-14 deemed advisable for the protection of the ward or the interested
72-15 party.
72-16 (d) A subsequent modification of an approved plan may be
72-17 made by similar application to the court.
72-18 Sec. 866. CONTRIBUTIONS. (a) The guardian of the estate
72-19 may at any time file the guardian's sworn application in writing
72-20 with the county clerk requesting an order from the court in which
72-21 the guardianship is pending authorizing the guardian to contribute
72-22 from the income of the ward's estate a specific amount of money as
72-23 stated in the application, to one or more:
72-24 (1) designated corporations, trusts, or community
72-25 chests, funds, or foundations, organized and operated exclusively
72-26 for religious, charitable, scientific, literary, or educational
72-27 purposes; or
72-28 (2) designated nonprofit federal, state, county, or
72-29 municipal projects operated exclusively for public health or
72-30 welfare.
72-31 (b) When an application is filed under this section, the
72-32 county clerk shall immediately call the filing of the application
72-33 to the attention of the judge of the court. The judge, by written
72-34 order filed with the clerk, shall designate a day to hear the
72-35 application. The application shall remain on file at least 10 days
72-36 before the hearing is held. The judge may postpone or continue the
72-37 hearing from time to time until the judge is satisfied concerning
72-38 the application.
72-39 (c) On the conclusion of a hearing under this section, the
72-40 court may enter an order authorizing the guardian to make a
72-41 contribution from the income of the ward's estate to a particular
72-42 donee designated in the application and order if the court is
72-43 satisfied and finds from the evidence that:
72-44 (1) the amount of the proposed contribution stated in
72-45 the application will probably not exceed 20 percent of the net
72-46 income of the ward's estate for the current calendar year;
72-47 (2) the net income of the ward's estate for the
72-48 current calendar year exceeds, or probably will exceed, $25,000;
72-49 (3) the full amount of the contribution, if made, will
72-50 probably be deductible from the ward's gross income in determining
72-51 the net income of the ward under applicable federal income tax laws
72-52 and rules;
72-53 (4) the condition of the ward's estate justifies a
72-54 contribution in the proposed amount; and
72-55 (5) the proposed contribution is reasonable in amount
72-56 and is for a worthy cause.
72-57 SUBPART N. MANAGEMENT TRUSTS
72-58 Sec. 867. CREATION OF MANAGEMENT TRUST. On application by
72-59 the guardian of a ward, the court in which the guardianship
72-60 proceeding is pending may enter an order that creates for the
72-61 ward's benefit a trust for the management of guardianship funds if
72-62 the court finds that the creation of the trust is in the ward's
72-63 best interests. The order shall direct the guardian to deliver all
72-64 or part of the assets of the guardianship to a trust company or a
72-65 state or national bank that has trust powers in this state. The
72-66 order shall include terms, conditions, and limitations placed on
72-67 the trust.
72-68 Sec. 868. TERMS OF MANAGEMENT TRUST. (a) A trust created
72-69 under Section 867 of this code must provide that:
72-70 (1) the ward is the sole beneficiary of the trust;
73-1 (2) the trustee may disburse an amount of the trust's
73-2 principal or income as the trustee determines is necessary to
73-3 expend for the health, education, support, or maintenance of the
73-4 ward;
73-5 (3) the income of the trust that the trustee does not
73-6 disburse under Subdivision (2) of this subsection must be added to
73-7 the principal of the trust;
73-8 (4) the trustee serves without giving a bond; and
73-9 (5) the trustee, on annual application to the court
73-10 and subject to the court's approval, is entitled to receive
73-11 reasonable compensation for services that the trustee provided to
73-12 the ward as the ward's trustee that is:
73-13 (A) to be paid from the trust's income,
73-14 principal, or both; and
73-15 (B) determined in the same manner as
73-16 compensation of a guardian of an estate under Section 665 of this
73-17 code.
73-18 (b) The trust may provide that a trustee make a
73-19 distribution, payment, use, or application of trust funds, as
73-20 necessary and without the intervention of a guardian or other
73-21 representative of the ward, to the ward's guardian or to a person
73-22 who has physical custody of the ward for:
73-23 (1) the benefit, support, or maintenance of the ward
73-24 if the ward is a minor; or
73-25 (2) the support of the ward, and the support,
73-26 maintenance, and education of the ward's children if the ward is an
73-27 incapacitated person other than a minor.
73-28 Sec. 869. TRUST AMENDMENT, MODIFICATION, OR REVOCATION.
73-29 (a) The court may amend, modify, or revoke the trust at any time
73-30 before the date of the trust's termination.
73-31 (b) The ward or guardian of the ward's estate may not revoke
73-32 the trust.
73-33 Sec. 870. TERMINATION OF TRUST. (a) If the ward is a
73-34 minor, the trust terminates:
73-35 (1) on the death of the ward or the ward's 18th
73-36 birthday, whichever is earlier; or
73-37 (2) on the date provided by court order which may not
73-38 be later than the ward's 25th birthday.
73-39 (b) If the ward is an incapacitated person other than a
73-40 minor, the trust terminates on the date the court determines that a
73-41 guardianship is no longer necessary for the ward or on the death of
73-42 the ward before the court's determination that a guardianship is no
73-43 longer necessary.
73-44 Sec. 871. ANNUAL ACCOUNTING. (a) The trustee shall prepare
73-45 and file with the court an annual accounting of transactions in the
73-46 trust in the same manner and form that is required of a guardian
73-47 under this chapter.
73-48 (b) The trustee shall provide a copy of the annual account
73-49 to the guardian of the ward's estate or person.
73-50 (c) The annual account is subject to court reviewal and
73-51 approval in the same manner that is required of an annual account
73-52 prepared by a guardian under this chapter.
73-53 Sec. 872. LIABILITY. The guardian of the estate of the ward
73-54 or the surety on the bond of the guardian is not liable for an act
73-55 or omission of the trustee.
73-56 Sec. 873. DISTRIBUTION OF TRUST PROPERTY. Unless otherwise
73-57 provided by the court, the trustee shall distribute the principal
73-58 or any undistributed income of the trust to the ward or to the
73-59 representative of the deceased ward's estate when the trust
73-60 terminates on its own terms or on the ward's death.
73-61 PART 5. SPECIAL PROCEEDINGS AND ORDERS
73-62 SUBPART A. TEMPORARY GUARDIANSHIPS
73-63 Sec. 875. TEMPORARY GUARDIAN--PROCEDURE. (a) If a court is
73-64 presented with substantial evidence that a person may be a minor or
73-65 other incapacitated person, and the court has probable cause to
73-66 believe that the person or person's estate, or both, requires the
73-67 immediate appointment of a guardian, the court shall appoint a
73-68 temporary guardian with limited powers as the circumstances of the
73-69 case require.
73-70 (b) A person for whom a temporary guardian has been
74-1 appointed may not be presumed to be incapacitated. The person
74-2 retains all rights and powers that are not specifically granted to
74-3 the person's temporary guardian by court order.
74-4 (c) A written application for the appointment of a temporary
74-5 guardian may be filed before the court appoints a temporary
74-6 guardian. The application must be filed not later than the end of
74-7 the next business day of the court after the date of appointment of
74-8 the temporary guardian. The application must state:
74-9 (1) the name and address of the person who is the
74-10 subject of the guardianship proceeding;
74-11 (2) the danger to the person or property alleged to be
74-12 imminent;
74-13 (3) the type of appointment and the particular
74-14 protection and assistance being requested;
74-15 (4) the facts and reasons supporting the allegations
74-16 and requests;
74-17 (5) the name, address, and qualification of the
74-18 proposed temporary guardian;
74-19 (6) the name, address, and interest of the applicant;
74-20 (7) the social security numbers of the applicant and
74-21 proposed ward; and
74-22 (8) if applicable, that the proposed temporary
74-23 guardian is a private professional guardian who has complied with
74-24 the requirements of Section 697 of this code.
74-25 (d) At the earliest of the filing of an application for
74-26 temporary guardianship or the appointment of a temporary guardian,
74-27 the court shall appoint an attorney to represent the proposed ward
74-28 in all guardianship proceedings in which independent counsel has
74-29 not been retained by or on behalf of the proposed ward.
74-30 (e) On the filing of an application for temporary
74-31 guardianship, the clerk shall issue notice that shall be served on
74-32 the respondent and the respondent's appointed attorney. The notice
74-33 must describe the rights of the parties and the date, time, place,
74-34 purpose, and possible consequences of a hearing on the application.
74-35 A copy of the application and, if applicable, a copy of the order
74-36 appointing the temporary guardian must be attached to the notice.
74-37 (f)(1) A hearing shall be held not later than the 10th day
74-38 after the date of the filing of the application for temporary
74-39 guardianship unless the hearing date is extended as provided by
74-40 Subdivision (2) of this subsection. At a hearing under this
74-41 section, the respondent has the right to:
74-42 (A) receive prior notice;
74-43 (B) have representation by counsel;
74-44 (C) be present;
74-45 (D) present evidence and confront and
74-46 cross-examine witnesses; and
74-47 (E) a closed hearing if requested by the
74-48 respondent or the respondent's attorney.
74-49 (2) Every temporary guardianship granted before a
74-50 hearing on the application required by Subdivision (1) of this
74-51 subsection expires on its own terms at the conclusion of the
74-52 hearing unless the respondent or the respondent's attorney consents
74-53 that the order appointing the temporary guardian may be extended
74-54 for a longer period not to exceed 60 days after the date of the
74-55 filing of the application for temporary guardianship.
74-56 (3) Every temporary guardianship granted before a
74-57 hearing on the application required by Subdivision (1) of this
74-58 subsection shall be set for hearing at the earliest possible date
74-59 and takes precedence over all matters except older matters of the
74-60 same character.
74-61 (4) Every temporary guardianship granted before a
74-62 hearing on the application required by Subdivision (1) of this
74-63 subsection must include an order that sets a certain date for
74-64 hearing on the application for temporary guardianship.
74-65 (5) On one day's notice to the party who obtained a
74-66 temporary guardianship before a hearing on the application required
74-67 by Subdivision (1) of this subsection, the respondent or the
74-68 respondent's attorney may appear and move for the dissolution or
74-69 modification of the temporary guardianship. If a motion is made
74-70 for dissolution or modification of the temporary guardianship, the
75-1 court shall hear and determine the motion as expeditiously as the
75-2 ends of justice require.
75-3 (g) If at the conclusion of the hearing required by
75-4 Subsection (f)(1) of this section the court determines that the
75-5 applicant has established that there is substantial evidence that
75-6 the person is a minor or other incapacitated person, that there is
75-7 imminent danger that the physical health or safety of the
75-8 respondent will be seriously impaired, or that the respondent's
75-9 estate will be seriously damaged or dissipated unless immediate
75-10 action is taken, the court shall appoint a temporary guardian by
75-11 written order. The court shall assign to the temporary guardian
75-12 only those powers and duties that are necessary to protect the
75-13 respondent against the imminent danger shown. The powers and
75-14 duties must be described in the order of appointment.
75-15 (h) Except as provided by Subsection (k) of this section, a
75-16 temporary guardianship may not remain in effect for more than 60
75-17 days.
75-18 (i) If the court appoints a temporary guardian after the
75-19 hearing required by Subsection (f)(1) of this section, all court
75-20 costs, including attorney's fees, may be assessed as provided in
75-21 Section 669 of this code.
75-22 (j) The court may not customarily or ordinarily appoint the
75-23 Texas Department of Human Services as a temporary guardian under
75-24 this section. The appointment of the department as a temporary
75-25 guardian under this section should be made only as a last resort.
75-26 (k) If an application for a temporary guardianship or an
75-27 application to convert a temporary guardianship to a permanent
75-28 guardianship is challenged or contested, the court shall appoint a
75-29 temporary guardian whose term expires at the conclusion of the
75-30 hearing or the period provided by Subsection (h) of this section,
75-31 whichever is later.
75-32 Sec. 876. AUTHORITY OF TEMPORARY GUARDIAN. When the
75-33 temporary guardian files the oath and bond required under this
75-34 chapter, the court order appointing the temporary guardian takes
75-35 effect without the necessity for issuance of letters of
75-36 guardianship. The clerk shall note compliance with oath and bond
75-37 requirements by the appointed guardian on a certificate attached to
75-38 the order. The order shall be evidence of the temporary guardian's
75-39 authority to act within the scope of the powers and duties set
75-40 forth in the order. The clerk may not issue certified copies of
75-41 the order until the oath and bond requirements are satisfied.
75-42 Sec. 877. POWERS OF TEMPORARY GUARDIAN. All the provisions
75-43 of this chapter relating to the guardianship of persons and estates
75-44 of incapacitated persons apply to a temporary guardianship of the
75-45 persons and estates of incapacitated persons, insofar as the same
75-46 may be made applicable.
75-47 Sec. 878. Accounting. At the expiration of a temporary
75-48 appointment, the appointee shall file with the clerk of the court a
75-49 sworn list of all property of the estate that has come into the
75-50 hands of the appointee, a return of all sales made by the
75-51 appointee, and a full exhibit and account of all of the appointee's
75-52 acts as temporary appointee.
75-53 Sec. 879. CLOSING TEMPORARY GUARDIANSHIP. The court shall
75-54 act on the list, return, exhibit, and account filed under Section
75-55 878 of this code. Whenever temporary letters expire or cease to be
75-56 effective for any reason, the court shall immediately enter an
75-57 order requiring the temporary appointee to deliver the estate
75-58 remaining in the temporary appointee's possession to the person who
75-59 is legally entitled to the possession of the estate. The temporary
75-60 appointee shall be discharged and the sureties on the bond of the
75-61 temporary appointee shall be released as to future liability on
75-62 proof that the appointee delivered the property as required by this
75-63 section.
75-64 SUBPART B. GUARDIANSHIPS FOR NONRESIDENTS
75-65 Sec. 881. NONRESIDENT GUARDIAN. (a) A nonresident of this
75-66 state may be appointed and qualified as guardian or coguardian of a
75-67 nonresident ward's estate located in this state in the same manner
75-68 provided by this code for the appointment and qualification of a
75-69 resident as guardian of the estate of an incapacitated person if:
75-70 (1) a court of competent jurisdiction in the
76-1 geographical jurisdiction in which the nonresident resides
76-2 appointed the nonresident guardian;
76-3 (2) the nonresident is qualified as guardian or as a
76-4 fiduciary legal representative by whatever name known in the
76-5 foreign jurisdiction of the property or estate of the ward located
76-6 in the jurisdiction of the foreign court; and
76-7 (3) with the written application for appointment in
76-8 the county court of any county in this state in which all or part
76-9 of the ward's estate is located, the nonresident files a complete
76-10 transcript of the proceedings from the records of the court in
76-11 which the nonresident applicant was appointed, showing the
76-12 applicant's appointment and qualification as the guardian or
76-13 fiduciary legal representative of the ward's property or estate.
76-14 (b) The transcript required by Subsection (a) of this
76-15 section must be certified to and attested by the clerk of the
76-16 foreign court or the officer of the court charged by law with
76-17 custody of the court records, under the court seal, if any. The
76-18 certificate of the judge, chief justice, or presiding magistrate,
76-19 as applicable, of the foreign court must be attached to the
76-20 transcript, certifying that the attestation of the transcript by
76-21 the clerk or legal custodian of the court records is in correct
76-22 form.
76-23 (c) If the nonresident applicant meets the requirements of
76-24 this section, without the necessity of any notice or citation, the
76-25 court shall enter an order appointing the nonresident. After the
76-26 nonresident applicant qualifies in the manner required of resident
76-27 guardians and files with the court a power of attorney appointing a
76-28 resident agent to accept service of process in all actions or
76-29 proceedings with respect to the estate, the clerk shall issue the
76-30 letters of guardianship to the nonresident guardian.
76-31 (d) After qualification, the nonresident guardian shall file
76-32 an inventory and appraisement of the estate of the ward in this
76-33 state subject to the jurisdiction of the court, as in ordinary
76-34 cases, and is subject to all applicable provisions of this code
76-35 with respect to the handling and settlement of estates by resident
76-36 guardians.
76-37 Sec. 882. NONRESIDENT AS WARD. Guardianship of the estate
76-38 of a nonresident incapacitated person who owns property in this
76-39 state may be granted, if necessary, in the same manner as for the
76-40 property of a resident of this state. A court in the county in
76-41 which the principal estate of the ward is located has jurisdiction
76-42 to appoint a guardian. The court shall take all actions and make
76-43 all necessary orders with respect to the estate of the ward for the
76-44 maintenance, support, care, or education of the ward, out of the
76-45 proceeds of the ward's estate, in the same manner as if the ward
76-46 were a resident of this state and was sent abroad by the court for
76-47 education or treatment. If a qualified nonresident guardian of the
76-48 estate later qualifies in this state under Section 881 of this
76-49 code, the court shall close the resident guardianship.
76-50 SUBPART C. INCAPACITATED SPOUSE AND COMMUNITY PROPERTY
76-51 Sec. 883. Incapacitated Spouse. When a husband or wife is
76-52 judicially declared to be incapacitated, the other spouse, in the
76-53 capacity of surviving partner of the marital partnership, acquires
76-54 full power to manage, control, and dispose of the entire community
76-55 estate, including the part of the community estate that the
76-56 incapacitated spouse legally has the power to manage in the absence
76-57 of the incapacity, without an administration. If the court finds
76-58 that it is in the best interest of the incapacitated spouse and
76-59 that the other spouse would not be disqualified to serve as
76-60 guardian under Section 681 of this code, guardianship of the estate
76-61 of the incapacitated spouse may not be necessary when the other
76-62 spouse is not incapacitated unless the incapacitated spouse owns
76-63 separate property, and the guardianship will be of the separate
76-64 property only. The qualification of a guardian of the estate of an
76-65 incapacitated spouse does not deprive the competent spouse of the
76-66 right to manage, control, and dispose of the entire community
76-67 estate as provided in this chapter.
76-68 Sec. 884. Delivery To Spouse. A guardian of the estate of
76-69 an incapacitated married person who, as guardian, is administering
76-70 community property as part of the estate of the ward, shall deliver
77-1 on demand the community property to the spouse who is not
77-2 incapacitated.
77-3 SUBPART D. RECEIVERSHIP FOR MINORS
77-4 AND OTHER INCAPACITATED PERSONS
77-5 Sec. 885. RECEIVERSHIP. (a) When the estate of a minor or
77-6 other incapacitated person or any portion of the estate of the
77-7 minor or other incapacitated person appears in danger of injury,
77-8 loss, or waste and in need of a guardianship or other
77-9 representative and there is no guardian of the estate who is
77-10 qualified in this state and a guardian is not needed, the county
77-11 judge of the county in which the minor or other incapacitated
77-12 person resides or in which the endangered estate is located shall
77-13 enter an order, with or without application, appointing a suitable
77-14 person as receiver to take charge of the estate. The court order
77-15 shall require a receiver appointed under this section to give bond
77-16 as in ordinary receiverships in an amount the judge deems necessary
77-17 to protect the estate. The court order shall specify the duties
77-18 and powers of the receiver as the judge deems necessary for the
77-19 protection, conservation, and preservation of the estate. The
77-20 clerk shall enter an order made under this section on the minutes
77-21 of the court. The person who is appointed as receiver shall make
77-22 and submit a bond for the judge's approval and shall file the bond,
77-23 when approved, with the clerk. The person who is appointed
77-24 receiver shall proceed to take charge of the endangered estate
77-25 pursuant to the powers and duties vested in the person by the order
77-26 of appointment and subsequent orders made by the judge.
77-27 (b) During the pendency of the receivership, when the needs
77-28 of the minor or other incapacitated person require the use of the
77-29 income or corpus of the estate for the education, clothing, or
77-30 subsistence of the minor or other incapacitated person, the judge,
77-31 with or without application, shall enter an order on the minutes of
77-32 the court that appropriates an amount of income or corpus that is
77-33 sufficient for that purpose. The receiver shall use the amount
77-34 appropriated by the court to pay a claim for the education,
77-35 clothing, or subsistence of the minor or other incapacitated person
77-36 that is presented to the judge for approval and ordered by the
77-37 judge to be paid.
77-38 (c) During the pendency of the receivership, when the
77-39 receiver has on hand an amount of money that belongs to the minor
77-40 or other incapacitated person that is in excess of the amount
77-41 needed for current necessities and expenses, the receiver, under
77-42 direction of the judge, may invest, lend, or contribute the excess
77-43 money or any portion of the money in the manner, for the security,
77-44 and on the terms and conditions provided by this chapter for
77-45 investments, loans, or contributions by guardians. The receiver
77-46 shall report to the judge all transactions made under this
77-47 subsection in the same manner that a report is required of a
77-48 guardian under this chapter.
77-49 (d) All necessary expenses incurred by the receiver in
77-50 administering the estate may be rendered monthly to the judge in
77-51 the form of a sworn statement of account that includes a report of
77-52 the receiver's acts, the condition of the estate, the status of the
77-53 threatened danger to the estate, and the progress made toward
77-54 abatement of the danger. If the judge is satisfied that the
77-55 statement is correct and reasonable in all respects, the judge
77-56 shall promptly enter an order approving the expenses and
77-57 authorizing the receiver to be reimbursed from the funds of the
77-58 estate in the receiver's hands. A receiver shall be compensated
77-59 for services rendered in the receiver's official capacity in the
77-60 same manner and amount as provided by this chapter for similar
77-61 services rendered by guardians of estates.
77-62 (e) When the threatened danger has abated and the estate is
77-63 no longer liable to injury, loss, or waste because there is no
77-64 guardian or other representative of the estate, the receiver shall
77-65 report to the judge, file with the clerk a full and final sworn
77-66 account of all property of the estate the receiver received, had on
77-67 hand when the receivership was pending, all sums paid out, all acts
77-68 performed by the receiver with respect to the estate, and all
77-69 property of the estate that remains in the receiver's hands on the
77-70 date of the report. On the filing of the report, the clerk shall
78-1 issue and cause to be posted a notice to all persons interested in
78-2 the welfare of the minor or other incapacitated person and shall
78-3 give personal notice to the person who has custody of the minor or
78-4 other incapacitated person to appear before the judge at a time and
78-5 place specified in the notice and contest the report and account if
78-6 the person desires.
78-7 (f) If on hearing the receiver's report and account the
78-8 judge is satisfied that the danger of injury, loss, or waste to the
78-9 estate has abated and that the report and account are correct, the
78-10 judge shall enter an order finding that the danger of injury, loss,
78-11 or waste to the estate has abated and shall direct the receiver to
78-12 deliver the estate to the person from whom the receiver took
78-13 possession as receiver, to the person who has custody of the minor
78-14 or other incapacitated person, or to another person as the judge
78-15 may find is entitled to possession of the estate. A person who
78-16 receives the estate under this subsection shall execute and file
78-17 with the clerk an appropriate receipt for the estate that is
78-18 delivered to the person. The judge's order shall discharge the
78-19 receivership and the sureties on the bond of the receiver. If the
78-20 judge is not satisfied that the danger has abated, or if the judge
78-21 is not satisfied with the receiver's report and account, the judge
78-22 shall enter an order that continues the receivership in effect
78-23 until the judge is satisfied that the danger has abated or is
78-24 satisfied with the report and account.
78-25 (g) An order or a bond, report, account, or notice in a
78-26 receivership proceeding must be recorded in the minutes of the
78-27 court.
78-28 SUBPART E. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP
78-29 Sec. 887. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP AND
78-30 ADMINISTRATION OF TERMINATED GUARDIANSHIP ASSETS. (a) When a
78-31 resident person who is a minor or other incapacitated person, or
78-32 the former ward of a guardianship terminated under Subpart C, Part
78-33 4, of this code, who are referred to in this section as "creditor,"
78-34 are without a legal guardian of the person's estate, and the person
78-35 is entitled to money in an amount that is $25,000 or less, the
78-36 right to which is liquidated and is uncontested in any pending
78-37 lawsuit, the debtor may pay the money to the county clerk of the
78-38 county in which the creditor resides to the account of the
78-39 creditor, giving the creditor's name, the nature of the creditor's
78-40 disability, and, if the creditor is a minor, the minor's age, and
78-41 the creditor's post-office address. The receipt for the money
78-42 signed by the clerk is binding on the creditor as of the date of
78-43 receipt and to the extent of the payment. The clerk, by letter
78-44 mailed to the address given by the debtor, shall apprise the
78-45 creditor of the fact that the deposit was made. On receipt of the
78-46 payment by the clerk, the clerk shall call the receipt of the
78-47 payment to the court's attention and shall invest the money as
78-48 authorized under this chapter pursuant to court order in the name
78-49 and for the account of the minor or other person entitled to the
78-50 money. Any increase, dividend, or income from an investment made
78-51 under this section shall be credited to the account of the minor or
78-52 other person entitled to the investment. Any money that is
78-53 deposited under the terms of this section that has not been paid
78-54 out shall be subject to the provisions of this chapter not later
78-55 than October 1, 1993.
78-56 (b) Not later than March 1 of each calendar year, the clerk
78-57 of the court shall make a written report to the court of the status
78-58 of an investment made by the clerk under this section. The report
78-59 must contain:
78-60 (1) the amount of the original investment or the
78-61 amount of the investment at the last annual report, whichever is
78-62 later;
78-63 (2) any increase, dividend, or income from such
78-64 investment since the last annual report;
78-65 (3) the total amount of the investment and all
78-66 increases, dividends, or income at the date of the report; and
78-67 (4) the name of the depository or the type of
78-68 investment.
78-69 (c) The father or mother, or unestranged spouse, of the
78-70 creditor, with priority being given to the spouse who resides in
79-1 this state or if there is no spouse and both father and mother are
79-2 dead or are nonresidents of this state, then the person who resides
79-3 in this state who has actual custody of the creditor, as custodian
79-4 and on filing with the clerk written application and bond approved
79-5 by the county judge of the county, may withdraw the money from the
79-6 clerk for the use and benefit of the creditor, the bond to be in
79-7 double the amount of the money and to be payable to the judge or
79-8 the judge's successors in office and to be conditioned that the
79-9 custodian will use the money for the creditor's benefit under
79-10 directions of the court and that the custodian, when legally called
79-11 on to do so, will faithfully account to the creditor and the
79-12 creditor's heirs or legal representatives for the money and any
79-13 increase to the money on the removal of the disability to which the
79-14 creditor is subject, or on the creditor's death, or the appointment
79-15 of a guardian for the creditor. A fee or commission may not be
79-16 allowed to the custodian for taking care of, handling, or expending
79-17 the money withdrawn by the custodian.
79-18 (d) When the custodian has expended the money in accordance
79-19 with directions of the court or has otherwise complied with the
79-20 terms of the custodian's bond by accounting for the money and any
79-21 increase in the money, the custodian shall file with the county
79-22 clerk of the county the custodian's sworn report of the custodian's
79-23 accounting. The filing of the custodian's report, when approved by
79-24 the court, operates as a discharge of the person as custodian and
79-25 of the person's sureties from all further liability under the bond.
79-26 The court shall satisfy itself that the report is true and correct
79-27 and may require proof as in other cases.
79-28 (e) When a nonresident minor, a nonresident person who is
79-29 adjudged by a court of competent jurisdiction to be incapacitated,
79-30 or the former ward of a guardianship terminated under Subpart C,
79-31 Part 4, of this code who has no legal guardian qualified in this
79-32 state is entitled to money in an amount that is not more than
79-33 $25,000 owing as a result of transactions within this state, the
79-34 right to which is liquidated and is uncontested in any pending
79-35 lawsuit in this state, the debtor in this state may pay the money
79-36 to the guardian of the creditor who is duly qualified in the
79-37 domiciliary jurisdiction or to the county clerk of any county in
79-38 this state in which real property owned by the nonresident person
79-39 is located. If the person is not known to own any real property in
79-40 any county in this state the debtor has the right to pay the money
79-41 to the county clerk of the county of this state in which the debtor
79-42 resides. In either case, the debtor's payment to the clerk is for
79-43 the use and benefit and for the account of the nonresident
79-44 creditor. The receipt for the payment signed by the clerk that
79-45 recites the name of the creditor and the post office address of the
79-46 creditor, if known, is binding on the creditor as of the date and
79-47 to the extent of the payment. The clerk shall handle the money
79-48 paid to the clerk by the debtor in the same manner as provided for
79-49 cases of payments to the accounts of residents of this state under
79-50 Subsections (a)-(d) of this section. All applicable provisions of
79-51 Subsections (a)-(d) of this section apply to the handling and
79-52 disposition of money or any increase, dividend, or income paid to
79-53 the clerk for the use, benefit, and account of the nonresident
79-54 creditor.
79-55 (f) If a person who is authorized to withdraw the money does
79-56 not withdraw the money from the clerk as provided for in this
79-57 section, the creditor, after termination of the creditor's
79-58 disability, or the subsequent personal representative of the
79-59 creditor or the creditor's heirs may withdraw, at any time and
79-60 without special bond for the purpose, the money on simply
79-61 exhibiting to the clerk an order of the county or probate court of
79-62 the county where the money is held by the clerk that directs the
79-63 clerk to deliver the money to the creditor, to the creditor's
79-64 personal representative, or to the creditor's heirs named in the
79-65 order. Before the court issues an order under this subsection, the
79-66 person's identity and the person's credentials must be proved to
79-67 the court's satisfaction.
79-68 (g) When it is made to appear to the judge of a county
79-69 court, district court, or other court of this state, by an
79-70 affidavit executed by the superintendent, business manager, or
80-1 field representative of any eleemosynary institution of this state,
80-2 that a certain inmate in the institution is a person who has a
80-3 mental disability, an incapacitated person, or a person whose
80-4 mental illness or mental incapacity, or both, renders the person
80-5 incapable of caring for himself and of managing the person's own
80-6 property and financial affairs, there is no known legal guardian
80-7 appointed for the estate of the inmate, and there is on deposit in
80-8 the court registry a certain sum of money that belongs to the
80-9 inmate that does not exceed $10,000, the court may order the
80-10 disposition of the funds as provided by this subsection. The
80-11 court, on satisfactory proof by affidavit or otherwise that the
80-12 inmate is a person who has a mental disability, an incapacitated
80-13 person, or a person whose mental illness or mental incapacity, or
80-14 both, renders the inmate incapable of caring for the inmate's self
80-15 and of managing the inmate's own property and financial affairs and
80-16 is without a legally appointed guardian of the inmate's estate, may
80-17 by order direct the clerk of the court to pay the money to the
80-18 institution for the use and benefit of the inmate. The state
80-19 institution to which the payment is made may not be required to
80-20 give bond or security for receiving the fund from the court
80-21 registry, and the receipt from the state institution for the
80-22 payment, or the canceled check or warrant by which the payment was
80-23 made, shall be sufficient evidence of the disposition of the
80-24 payment. The clerk of the court is relieved of further
80-25 responsibility for the disposition. On receipt of the money, the
80-26 institution shall deposit all of the amount of money received to
80-27 the trust account of the inmate. The money deposited by the
80-28 institution in the trust account is to be used by or for the
80-29 personal use of the owner of the trust account under the rules or
80-30 custom of the institution in the expenditure of the funds by the
80-31 inmate or for the use and benefit of the inmate by the responsible
80-32 officer of the institution. This subsection is cumulative of all
80-33 other laws affecting the rights of a person who has a mental
80-34 disability, an incapacitated person, or a person who has a mental
80-35 illness and affecting money that belongs to the person as an inmate
80-36 of a state eleemosynary institution. If the inmate dies leaving a
80-37 balance in the inmate's trust account, the balance may be applied
80-38 to the burial expenses of the inmate or applied to the care,
80-39 support, and treatment account of the inmate at the eleemosynary
80-40 institution. After the expenditure of all funds in the trust
80-41 account or after the death of the inmate, the responsible officer
80-42 shall furnish a statement of expenditures of the funds to the
80-43 nearest relative who is entitled to receive the statement. A copy
80-44 of the statement shall be filed with the court that first granted
80-45 the order to dispose of the funds in accordance with the provisions
80-46 of this chapter.
80-47 SUBPART F. SALE OF PROPERTY OF MINOR
80-48 Sec. 889. SALE OF PROPERTY OF A MINOR BY A PARENT WITHOUT
80-49 GUARDIANSHIP. (a) When the value of the minor's interest in real
80-50 or personal property in an estate does not exceed $25,000, a
80-51 natural or adoptive parent of a minor who is not a ward may apply
80-52 to the court for an order to sell the real or personal property of
80-53 a minor in an estate without being appointed guardian. A minor may
80-54 not disaffirm a sale of property pursuant to a court order under
80-55 this section.
80-56 (b) The parent shall apply to the court under oath for the
80-57 sale of the property. Venue for the application under this section
80-58 is the same as venue for an application for the appointment of a
80-59 guardian for a minor. The application must contain:
80-60 (1) a legal description of the real property and a
80-61 description that identifies the personal property;
80-62 (2) the name of the minor and the minor's interest in
80-63 the property;
80-64 (3) the name of the purchaser;
80-65 (4) a statement that the sale of the minor's interest
80-66 in the property is for cash; and
80-67 (5) a statement that all funds received by the parent
80-68 shall be used for the use and benefit of the minor.
80-69 (c) On receipt of the application, the court shall set the
80-70 application for hearing at a date not earlier than five days from
81-1 the date of the filing of the application. If the court deems it
81-2 necessary, the court may cause citation to be issued.
81-3 (d) At the time of the hearing of the application filed
81-4 under this section, the court shall order the sale of the property
81-5 if the court is satisfied from the evidence that the sale is in the
81-6 best interests of the minor. The court may require an independent
81-7 appraisal of the property to be sold to establish the minimum sale
81-8 price.
81-9 (e) When the court enters the order of sale, the purchaser
81-10 of the property shall pay the proceeds of the sale belonging to the
81-11 minor into the court registry.
81-12 (f) Nothing in this section prevents the proceeds deposited
81-13 in the registry from being withdrawn from the court registry under
81-14 Section 885 of this code.
81-15 SUBPART G. NONRESIDENT GUARDIANS
81-16 Sec. 891. NONRESIDENT GUARDIAN'S REMOVAL OF WARD'S PROPERTY
81-17 FROM STATE. A nonresident guardian, whether or not qualified under
81-18 this code, may remove personal property of the ward out of the
81-19 state if:
81-20 (1) the removal does not conflict with the tenure of
81-21 the property or the terms and limitations of the guardianship under
81-22 which the property is held; and
81-23 (2) all debts known to exist against the estate in
81-24 this state are paid or secured by bond payable to and approved by
81-25 the judge of the court in which guardianship proceedings are
81-26 pending in this state.
81-27 Sec. 892. DELIVERY OF PROPERTY. A resident executor,
81-28 administrator, or guardian who has any of the estate of a ward may
81-29 be ordered by the court to deliver the estate to a duly qualified
81-30 and acting nonresident guardian of the ward.
81-31 SECTION 2. Section 2(e), Texas Probate Code, is amended to
81-32 read as follows:
81-33 (e) Nature of Proceeding. The administration of the estate
81-34 of a decedent <or ward>, from the filing of the application for
81-35 probate and administration, or for administration, until the decree
81-36 of final distribution and the discharge of the last personal
81-37 representative, shall be considered as one proceeding for purposes
81-38 of jurisdiction. The entire proceeding is a proceeding in rem.
81-39 SECTION 3. Section 3, Texas Probate Code, is amended to read
81-40 as follows:
81-41 Sec. 3. Definitions and Use of Terms. Except as otherwise
81-42 provided by Chapter XIII of this Code, when <When> used in this
81-43 Code, unless otherwise apparent from the context:
81-44 (a) "Authorized corporate surety" means a domestic or
81-45 foreign corporation authorized to do business in the State of Texas
81-46 for the purpose of issuing surety, guaranty or indemnity bonds
81-47 guaranteeing the fidelity of executors and<,> administrators<, and
81-48 guardians>.
81-49 (b) "Child" includes an adopted child, whether adopted
81-50 by any existing or former statutory procedure or by acts of
81-51 estoppel, but, unless expressly so stated herein, does not include
81-52 a child who has no presumed father.
81-53 (c) "Claims" include liabilities of a decedent which
81-54 survive, including taxes, whether arising in contract or in tort or
81-55 otherwise, funeral expenses, the expense of a tombstone, expenses
81-56 of administration, estate and inheritance taxes, <liabilities
81-57 against the estate of a minor or incompetent,> and debts due such
81-58 estates.
81-59 (d) "Corporate fiduciary" means a trust company or
81-60 bank having trust powers, existing or doing business under the laws
81-61 of this state or of the United States, which is authorized by law
81-62 to act under the order or appointment of any court of record,
81-63 without giving bond, as <guardian,> receiver, trustee, executor,
81-64 administrator, or, although without general depository powers,
81-65 depository for any moneys paid into court, or to become sole
81-66 guarantor or surety in or upon any bond required to be given under
81-67 the laws of this state.
81-68 (e) "County Court" and "Probate Court" are synonymous
81-69 terms and denote county courts in the exercise of their probate
81-70 jurisdiction, courts created by statute and authorized to exercise
82-1 original probate jurisdiction, and district courts exercising
82-2 probate jurisdiction in contested matters.
82-3 (f) "County Judge," "Probate Judge," and "Judge"
82-4 denote the presiding judge of any court having original
82-5 jurisdiction over probate proceedings, whether it be a county court
82-6 in the exercise of its probate jurisdiction, a court created by
82-7 statute and authorized to exercise probate jurisdiction, or a
82-8 district court exercising probate jurisdiction in contested
82-9 matters.
82-10 (g) "Court" denotes and includes both a county court
82-11 in the exercise of its probate jurisdiction, a court created by
82-12 statute and authorized to exercise original probate jurisdiction,
82-13 or a district court exercising original probate jurisdiction in
82-14 contested matters.
82-15 (h) "Devise," when used as a noun, includes a
82-16 testamentary disposition of real or personal property, or of both.
82-17 When used as a verb, "devise" means to dispose of real or personal
82-18 property, or of both, by will.
82-19 (i) "Devisee" includes legatee.
82-20 (j) "Distributee" denotes a person entitled to the
82-21 estate of a decedent under a lawful will, or under the statutes of
82-22 descent and distribution.
82-23 (k) "Docket" means the probate docket.
82-24 (l) "Estate" denotes the real and personal property of
82-25 a decedent <or ward>, both as such property originally existed and
82-26 as from time to time changed in form by sale, reinvestment, or
82-27 otherwise, and as augmented by any accretions and additions thereto
82-28 (including any property to be distributed to the representative of
82-29 the decedent by the trustee of a trust which terminates upon the
82-30 decedent's death) and substitutions therefor, and as diminished by
82-31 any decreases therein and distributions therefrom.
82-32 (m) "Exempt property" refers to that property of a
82-33 decedent's estate which is exempt from execution or forced sale by
82-34 the Constitution or laws of this State, and to the allowance in
82-35 lieu thereof.
82-36 (n) "Habitual drunkard" and "common drunkard" are
82-37 synonymous and denote one who, by reason of the habitual use of
82-38 intoxicating liquor, drugs, or a toxic inhalant as defined by
82-39 Section 462.001, Health and Safety Code, is incapable of taking
82-40 care of himself or managing his property and financial affairs.
82-41 (o) "Heirs" denote those persons, including the
82-42 surviving spouse, who are entitled under the statutes of descent
82-43 and distribution to the estate of a decedent who dies intestate.
82-44 (p) "Incompetents" or "Incompetent persons" are
82-45 persons non compos mentis, mentally disabled persons, insane
82-46 persons, common or habitual drunkards, and other persons who are
82-47 mentally incompetent to care for themselves or to manage their
82-48 property and financial affairs.
82-49 (q) "Independent executor" means the personal
82-50 representative of an estate under independent administration as
82-51 provided in Section 145 of this Code. The term "independent
82-52 executor" includes the term "independent administrator."
82-53 (r) "Interested persons" or "persons interested" means
82-54 heirs, devisees, spouses, creditors, or any others having a
82-55 property right in, or claim against, the estate being administered;
82-56 and anyone interested in the welfare of a minor or incompetent
82-57 ward.
82-58 (s) "Legacy" includes any gift or devise by will,
82-59 whether of personalty or realty. "Legatee" includes any person
82-60 entitled to a legacy under a will.
82-61 (t) "Minors" are all persons under eighteen years of
82-62 age who have never been married or who have not had disabilities of
82-63 minority removed for general purposes.
82-64 (u) "Minutes" means the probate minutes.
82-65 (v) "Mortgage" or "Lien" includes deed of trust,
82-66 vendor's lien, chattel mortgage, mechanic's, materialman's or
82-67 laborer's lien, judgment, attachment or garnishment lien, pledge by
82-68 hypothecation, and Federal or State tax liens.
82-69 (w) "Net estate" means the real and personal property
82-70 of a decedent, exclusive of homestead rights, exempt property, the
83-1 family allowance and enforceable claims against the estate.
83-2 (x) "Person" includes natural persons and
83-3 corporations.
83-4 (y) "Persons of unsound mind" are persons non compos
83-5 mentis, mentally disabled persons, insane persons, and other
83-6 persons who are mentally incompetent to care for themselves or to
83-7 manage their property and financial affairs.
83-8 (z) "Personal property" includes interests in goods,
83-9 money, choses in action, evidence of debts, and chattels real.
83-10 (aa) "Personal representative" or "Representative"
83-11 includes executor, independent executor, administrator, independent
83-12 administrator, temporary administrator, <guardian, and temporary
83-13 guardian,> together with their successors. The inclusion of
83-14 independent executors herein shall not be held to subject such
83-15 representatives to control of the courts in probate matters with
83-16 respect to settlement of estates except as expressly provided by
83-17 law.
83-18 (bb) "Probate matter," "Probate proceedings,"
83-19 "Proceeding in probate," and "Proceedings for probate" are
83-20 synonymous and include a matter or proceeding relating to
83-21 <guardianship, as well as a matter or proceeding relating to> the
83-22 estate of a decedent<, and proceedings regarding incompetents>.
83-23 (cc) "Property" includes both real and personal
83-24 property.
83-25 (dd) "Real property" includes estates and interests in
83-26 lands, corporeal or incorporeal, legal or equitable, other than
83-27 chattels real.
83-28 (ee) "Surety" includes both personal and corporate
83-29 sureties.
83-30 (ff) "Will" includes codicil; it also includes a
83-31 testamentary instrument which merely:
83-32 (1) appoints an executor or guardian;
83-33 (2) directs how property may not be disposed of;
83-34 or
83-35 (3) revokes another will.
83-36 (gg) The singular number includes the plural; the
83-37 plural number includes the singular.
83-38 (hh) The masculine gender includes the feminine and
83-39 neuter.
83-40 (ii) "Statutory probate court" refers to any statutory
83-41 court presently in existence or created after the passage of this
83-42 Act, the jurisdiction of which is limited by statute to the general
83-43 jurisdiction of a probate court, and such courts whose statutorily
83-44 designated name contains the word "probate." County courts at law
83-45 exercising probate jurisdiction are not statutory probate courts
83-46 under this Code unless their statutorily designated name includes
83-47 the word "probate."
83-48 (jj) "Next of kin" includes an adopted child or his or
83-49 her descendents and the adoptive parent of the adopted child.
83-50 (kk) "Charitable organization" means:
83-51 (1) a nonprofit corporation, trust, community
83-52 chest, fund, foundation, or other entity that is exempt from
83-53 federal income tax under Section 501(c)(3) of the Internal Revenue
83-54 Code of 1986 because the entity is organized and operated
83-55 exclusively for religious, charitable, scientific, educational, or
83-56 literary purposes, testing for public safety, prevention of cruelty
83-57 to children or animals, or promotion of amateur sports competition;
83-58 or
83-59 (2) any other entity or organization that is
83-60 organized and operated exclusively for the purposes listed in
83-61 Section 501(c)(3) of the Internal Revenue Code of 1986.
83-62 (ll) "Governmental agency of the state" means:
83-63 (1) an incorporated city or town, a county, a
83-64 public school district, a special-purpose district or authority, or
83-65 a district, county, or justice of the peace court;
83-66 (2) a board, commission, department, office, or
83-67 other agency in the executive branch of state government, including
83-68 an institution of higher education as defined by Section 61.003,
83-69 Education Code;
83-70 (3) the legislature or a legislative agency; and
84-1 (4) the supreme court, the court of criminal
84-2 appeals, a court of appeals, or the State Bar of Texas or another
84-3 judicial agency having statewide jurisdiction.
84-4 SECTION 4. Section 4, Texas Probate Code, is amended to read
84-5 as follows:
84-6 Sec. 4. Jurisdiction of County Court With Respect to Probate
84-7 Proceedings. The county court shall have the general jurisdiction
84-8 of a probate court. It shall probate wills, <appoint guardians of
84-9 minors and incompetents,> grant letters testamentary and of
84-10 administration <and guardianship>, settle accounts of personal
84-11 representatives, and transact all business appertaining to estates
84-12 subject to administration <or guardianship>, including the
84-13 settlement, partition, and distribution of such estates. <It may
84-14 also appoint guardians for other persons where it is necessary that
84-15 a guardian be appointed to receive funds from any governmental
84-16 source or agency.>
84-17 SECTION 5. Sections 5(a), (b), (c), and (e), Texas Probate
84-18 Code, are amended to read as follows:
84-19 (a) The district court shall have original control and
84-20 jurisdiction over executors and<,> administrators<, guardians and
84-21 wards> under such regulations as may be prescribed by law.
84-22 (b) In those counties where there is no statutory probate
84-23 court, county court at law or other statutory court exercising the
84-24 jurisdiction of a probate court, all applications, petitions and
84-25 motions regarding probate and<,> administrations<, guardianships,
84-26 limited guardianships, and mental illness matters> shall be filed
84-27 and heard in the county court, except that in contested probate
84-28 matters, the judge of the county court may on his own motion (or
84-29 shall on the motion of any party to the proceeding, according to
84-30 the motion) request as provided by Section 25.0022, Government
84-31 Code, the assignment of a statutory probate judge to hear the
84-32 contested portion of the proceeding, or transfer the contested
84-33 portion of the proceeding to the district court, which may then
84-34 hear contested matter as if originally filed in district court.
84-35 The county court shall continue to exercise jurisdiction over the
84-36 management of the estate with the exception of the contested matter
84-37 until final disposition of the contested matter is made by the
84-38 assigned judge or the district court. In contested matters
84-39 transferred to the district court in those counties, the district
84-40 court, concurrently with the county court, shall have the general
84-41 jurisdiction of a probate court. Upon resolution of all pending
84-42 contested matters, the contested portion of the probate proceeding
84-43 shall be transferred by the district court to the county court for
84-44 further proceedings not inconsistent with the orders of the
84-45 district court. If a contested portion of the proceeding is
84-46 transferred to a district court under this subsection, the clerk of
84-47 the district court may perform in relation to the transferred
84-48 portion of the proceeding any function a county clerk may perform
84-49 in that type of contested proceeding.
84-50 (c) In those counties where there is a statutory probate
84-51 court, county court at law, or other statutory court exercising the
84-52 jurisdiction of a probate court, all applications, petitions and
84-53 motions regarding probate and<,> administrations<, guardianships,
84-54 limited guardianships, and mental illness matters> shall be filed
84-55 and heard in such courts and the constitutional county court,
84-56 rather than in the district courts, unless otherwise provided by
84-57 the legislature, and the judges of such courts may hear any of such
84-58 matters sitting for the judge of any of such courts. In contested
84-59 probate matters, the judge of the constitutional county court may
84-60 on his own motion, and shall on the motion of any party to the
84-61 proceeding, transfer the proceeding to the statutory probate court,
84-62 county court at law, or other statutory court exercising the
84-63 jurisdiction of a probate court, which may then hear the proceeding
84-64 as if originally filed in such court.
84-65 (e) All courts exercising original probate jurisdiction
84-66 shall have the power to hear all matters incident to an estate.
84-67 When a surety is called on to perform in place of an administrator
84-68 <or guardian>, all courts exercising original probate jurisdiction
84-69 may award judgment against the personal representative in favor of
84-70 his surety in the same suit.
85-1 SECTION 6. Sections 5A(a) and (b), Texas Probate Code, are
85-2 amended to read as follows:
85-3 (a) In proceedings in the constitutional county courts and
85-4 statutory county courts at law, the phrases "appertaining to
85-5 estates" and "incident to an estate" in this Code include the
85-6 probate of wills, the issuance of letters testamentary and of
85-7 administration, the determination of heirship, and also include,
85-8 but are not limited to, all claims by or against an estate, all
85-9 actions for trial of title to land incident to an estate and for
85-10 the enforcement of liens thereon incident to an estate, all actions
85-11 for trial of the right of property incident to an estate, and
85-12 actions to construe wills, and generally all matters relating to
85-13 the settlement, partition, and distribution of estates of <wards
85-14 and> deceased persons.
85-15 (b) In proceedings in the statutory probate courts and
85-16 district courts, the phrases "appertaining to estates" and
85-17 "incident to an estate" in this Code include the probate of wills,
85-18 the issuance of letters testamentary and of administration, and the
85-19 determination of heirship, and also include, but are not limited
85-20 to, all claims by or against an estate, all actions for trial of
85-21 title to land and for the enforcement of liens thereon, all actions
85-22 for trial of the right of property, all actions to construe wills,
85-23 the interpretation and administration of testamentary trusts and
85-24 the applying of constructive trusts, and generally all matters
85-25 relating to the settlement, partition, and distribution of estates
85-26 of <wards and> deceased persons. All statutory probate courts may,
85-27 in the exercise of their jurisdiction, notwithstanding any other
85-28 provisions of this Code, hear all suits, actions, and applications
85-29 filed against or on behalf of any <guardianship,> heirship
85-30 proceeding<,> or decedent's estate, including estates administered
85-31 by an independent executor. This subsection shall be construed in
85-32 conjunction with and in harmony with Section 145 and all other
85-33 sections of this Code dealing with independent executors, but shall
85-34 not be construed so as to increase permissible judicial control
85-35 over independent executors. All statutory probate courts shall
85-36 have the same powers over independent executors that are
85-37 exercisable by the district courts. In situations where the
85-38 jurisdiction of a statutory probate court is concurrent with that
85-39 of a district court, any cause of action appertaining to estates or
85-40 incident to an estate shall be brought in a statutory probate court
85-41 rather than in the district court.
85-42 SECTION 7. Section 12(c), Texas Probate Code, is amended to
85-43 read as follows:
85-44 (c) Suit for Fiduciary. No security for costs shall be
85-45 required of an executor or<,> administrator<, or guardian>
85-46 appointed by a court of this state in any suit brought by him in
85-47 his fiduciary character.
85-48 SECTION 8. Section 13, Texas Probate Code, is amended to
85-49 read as follows:
85-50 Sec. 13. Judge's Probate Docket. The county clerk shall
85-51 keep a record book to be styled "Judge's Probate Docket," and shall
85-52 enter therein:
85-53 (a) The name of each person upon whose person or
85-54 estate proceedings are had or sought to be had.
85-55 (b) The name of the executor or administrator <or
85-56 guardian of such estate or person,> or of the applicant for
85-57 letters.
85-58 (c) The date of the filing of the original application
85-59 for probate proceedings.
85-60 (d) A minute of each order, judgment, decree, and
85-61 proceeding had in each estate, with the date thereof.
85-62 (e) A number for each estate upon the docket in the
85-63 order in which proceedings are commenced, and each paper filed in
85-64 an estate shall be given the corresponding docket number of the
85-65 estate.
85-66 SECTION 9. Section 14, Texas Probate Code, is amended to
85-67 read as follows:
85-68 Sec. 14. Claim Docket. The county clerk shall also keep a
85-69 record book to be styled "Claim Docket," and shall enter therein
85-70 all claims presented against an estate for approval by the court.
86-1 This docket shall be ruled in sixteen columns at proper intervals
86-2 from top to bottom, with a short note of the contents at the top of
86-3 each column. One or more pages shall be assigned to each estate.
86-4 The following information shall be entered in the respective
86-5 columns beginning with the first or marginal column: The names of
86-6 claimants in the order in which their claims are filed; the amount
86-7 of the claim; its date; the date of filing; when due; the date from
86-8 which it bears interest; the rate of interest; when allowed by the
86-9 executor or administrator <or guardian>; the amount allowed; the
86-10 date of rejection; when approved; the amount approved; when
86-11 disapproved; the class to which the claim belongs; when established
86-12 by judgment of a court; the amount of such judgment.
86-13 SECTION 10. Section 15, Texas Probate Code, is amended to
86-14 read as follows:
86-15 Sec. 15. Probate Minutes and Papers to be Recorded Therein.
86-16 The county clerk shall keep a record book styled "Probate Minutes,"
86-17 and shall enter therein in full all orders, judgments, decrees, and
86-18 proceedings of the court, together with the following:
86-19 (a) All applications for the probate of wills and for
86-20 the granting of administration <or guardianship>.
86-21 (b) All citations and notices, whether published or
86-22 posted, with the returns thereon.
86-23 (c) All wills and the testimony upon which the same
86-24 are admitted to probate, provided that the substance only of
86-25 depositions shall be recorded.
86-26 (d) All bonds and official oaths.
86-27 (e) All inventories, appraisements, and lists of
86-28 claims.
86-29 (f) All exhibits and accounts.
86-30 (g) All reports of hiring, renting, or sale.
86-31 (h) All applications for sale or partition of real
86-32 estate and reports of sale and of commissioners of partition.
86-33 (i) All applications for authority to execute leases
86-34 for mineral development, or for pooling or unitization of lands,
86-35 royalty, or other interest in minerals, or to lend or invest money.
86-36 (j) All reports of lending or investing money.
86-37 SECTION 11. Section 19, Texas Probate Code, is amended to
86-38 read as follows:
86-39 Sec. 19. Call of the Dockets. The judge of the court in
86-40 which probate proceedings are pending, at such times as he shall
86-41 determine, shall call the estates of decedents<, minors and
86-42 incompetents> in their regular order upon both the probate and
86-43 claim dockets and make such orders as shall be necessary.
86-44 SECTION 12. Section 24, Texas Probate Code, is amended to
86-45 read as follows:
86-46 Sec. 24. Enforcement of Orders. The county or probate judge
86-47 may enforce obedience to all his lawful orders against executors
86-48 and<,> administrators <and guardians> by attachment and
86-49 imprisonment, but no such imprisonment shall exceed three days for
86-50 any one offense, unless otherwise expressly so provided in this
86-51 Code.
86-52 SECTION 13. Section 26, Texas Probate Code, is amended to
86-53 read as follows:
86-54 Sec. 26. Attachments for Property. Whenever complaint in
86-55 writing, under oath, shall be made to the county or probate judge
86-56 by any person interested in the estate of a decedent<, minor or
86-57 incompetent> that the executor or administrator <or guardian> is
86-58 about to remove said estate, or any part thereof, beyond the limits
86-59 of the State, such judge may order a writ to issue, directed "to
86-60 any sheriff or any constable within the State of Texas," commanding
86-61 him to seize such estate, or any part thereof, and hold the same
86-62 subject to such further orders as such judge shall make on such
86-63 complaint. No such writ shall issue unless the complainant shall
86-64 give bond, in such sum as the judge shall require, payable to the
86-65 executor or administrator <or guardian> of such estate, conditioned
86-66 for the payment of all damages and costs that shall be recovered
86-67 for the wrongful suing out of such writ. Provided, however, that
86-68 no writ of attachment directed to the sheriff or any constable of a
86-69 specific county within this State shall be held defective if such
86-70 writ was properly executed within such county by such officer.
87-1 SECTION 14. Section 28, Texas Probate Code, is amended to
87-2 read as follows:
87-3 Sec. 28. Personal Representative to Serve Pending Appeal of
87-4 Appointment. Pending appeals from orders or judgments appointing
87-5 administrators <or guardians> or temporary administrators <or
87-6 guardians>, the appointees shall continue to act as such and shall
87-7 continue the prosecution of any suits then pending in favor of the
87-8 estate.
87-9 SECTION 15. Section 29, Texas Probate Code, is amended to
87-10 read as follows:
87-11 Sec. 29. Appeal Bonds of Personal Representatives. When an
87-12 appeal is taken by an executor or<,> administrator<, or guardian>,
87-13 no bond shall be required, unless such appeal personally concerns
87-14 him, in which case he must give the bond.
87-15 SECTION 16. Section 31, Texas Probate Code, is amended to
87-16 read as follows:
87-17 Sec. 31. Bill of Review. Any person interested may, by a
87-18 bill of review filed in the court in which the probate proceedings
87-19 were had, have any decision, order, or judgment rendered by the
87-20 court, or by the judge thereof, revised and corrected on showing
87-21 error therein; but no process or action under such decision, order
87-22 or judgment shall be stayed except by writ of injunction, and no
87-23 bill of review shall be filed after two years have elapsed from the
87-24 date of such decision, order, or judgment. <Persons non compos
87-25 mentis and minors shall have two years after the removal of their
87-26 respective disabilities within which to apply for a bill of
87-27 review.>
87-28 SECTION 17. Section 32, Texas Probate Code, is amended to
87-29 read as follows:
87-30 Sec. 32. Common Law Applicable. The rights, powers and
87-31 duties of executors and<,> administrators<, and guardians> shall be
87-32 governed by the principles of the common law, when the same do not
87-33 conflict with the provisions of the statutes of this State.
87-34 SECTION 18. Section 33(j), Texas Probate Code, is amended to
87-35 read as follows:
87-36 (j) Request for Notice. At any time after an application is
87-37 filed for the purpose of commencing any proceeding in probate,
87-38 including, but not limited to, a proceeding for the probate of a
87-39 will, grant of letters testamentary or of administration and<,>
87-40 determination of heirship, <and the grant of letters of
87-41 guardianship,> any person interested in the estate <or welfare of a
87-42 ward,> may file with the clerk a request in writing that he be
87-43 notified of any and all, or of any specifically designated,
87-44 motions, applications, or pleadings filed by any person, or by any
87-45 particular persons specifically designated in the request. The
87-46 fees and costs for such notices shall be borne by the person
87-47 requesting them, and the clerk may require a deposit to cover the
87-48 estimated costs of furnishing such person with the notice or
87-49 notices requested. The clerk shall thereafter send to such person
87-50 by ordinary mail copies of any of the documents specified in the
87-51 request. Failure of the clerk to comply with the request shall not
87-52 invalidate any proceeding.
87-53 SECTION 19. Section 34A, Texas Probate Code, is amended to
87-54 read as follows:
87-55 Sec. 34A. <GUARDIANS AND> Attorneys Ad Litem. The judge of
87-56 a probate court may appoint <a guardian ad litem,> an attorney ad
87-57 litem<, or, if necessary, both,> to represent the interests of a
87-58 person having a legal disability, a nonresident, an unborn or
87-59 unascertained person, or an unknown heir in any probate proceeding.
87-60 Each <guardian ad litem and> attorney ad litem appointed under this
87-61 section is entitled to reasonable compensation for services in the
87-62 amount set by the court and to be taxed as costs in the proceeding.
87-63 SECTION 20. Section 35, Texas Probate Code, is amended to
87-64 read as follows:
87-65 Sec. 35. Waiver of Notice. Any person legally competent who
87-66 is interested in any hearing in a proceeding in probate may, in
87-67 person or by attorney, waive in writing notice of such hearing. A
87-68 <guardian of the estate or a guardian ad litem may make such a
87-69 waiver on behalf of his ward, and a> trustee may make such a waiver
87-70 on behalf of the beneficiary of his trust. A consul or other
88-1 representative of a foreign government, whose appearance has been
88-2 entered as provided by law on behalf of any person residing in a
88-3 foreign country, may make such waiver of notice on behalf of such
88-4 person. Any person who submits to the jurisdiction of the court in
88-5 any hearing shall be deemed to have waived notice thereof.
88-6 SECTION 21. Section 36, Texas Probate Code, is amended to
88-7 read as follows:
88-8 Sec. 36. Duty and Responsibility of Judge. It shall be the
88-9 duty of each county and probate court to use reasonable diligence
88-10 to see that personal representatives of estates being administered
88-11 under orders of the court<, guardians of the persons of wards,> and
88-12 other officers of the court<,> perform the duty enjoined upon them
88-13 by law pertaining to such estates <and wards>. The judge shall
88-14 annually, if in his opinion the same be necessary, examine the
88-15 condition of each of said estates<, the well-being of each ward of
88-16 the court,> and the solvency of the bonds of personal
88-17 representatives of estates <estate and guardians of persons>. He
88-18 shall, at any time he finds that the personal representative's bond
88-19 is not sufficient to protect such estate <or ward>, require such
88-20 personal representatives to execute a new bond in accordance with
88-21 law. In each case, he shall notify the personal representative,
88-22 and the sureties on the bond, as provided by law; and should damage
88-23 or loss result to estates <or wards> through the gross neglect of
88-24 the judge to use reasonable diligence in the performance of his
88-25 duty, he shall be liable on his bond to those damaged by such
88-26 neglect.
88-27 SECTION 22. The heading to Chapter V, Texas Probate Code, is
88-28 amended to read as follows:
88-29 CHAPTER V. PROBATE AND<,> GRANT OF ADMINISTRATION<,
88-30 AND GUARDIANSHIP>
88-31 SECTION 23. The heading to Chapter VI, Texas Probate Code,
88-32 is amended to read as follows:
88-33 CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION
88-34 <AND GUARDIANSHIP>
88-35 SECTION 24. The heading to Part 1, Chapter VI, Texas Probate
88-36 Code, is amended to read as follows:
88-37 PART 1. TEMPORARY ADMINISTRATION IN THE INTEREST OF <(A)>
88-38 ESTATES OF DEPENDENTS<, AND (B) PERSONS OR ESTATES OF MINORS
88-39 AND INCOMPETENTS>
88-40 SECTION 25. Section 133, Texas Probate Code, is amended to
88-41 read as follows:
88-42 Sec. 133. Powers of Temporary ADMINISTRATORS <Appointees>.
88-43 <(a) Temporary Administrators.> Temporary administrators shall
88-44 have and exercise only such rights and powers as are specifically
88-45 expressed in the order of the court appointing them, and as may be
88-46 expressed in subsequent orders of the court. Where a court, by a
88-47 subsequent order, extends the rights and powers of a temporary
88-48 administrator, it may require additional bond commensurate with
88-49 such extension. Any acts performed by temporary administrators
88-50 that are not so expressly authorized shall be void.
88-51 <(b) Temporary Guardianships. All the provisions of this
88-52 Code relating to the guardianship of persons and estates of minors,
88-53 persons of unsound mind, and habitual drunkards shall apply to
88-54 temporary guardianship of the persons and estates of such persons,
88-55 in so far as the same are applicable.>
88-56 SECTION 26. The heading to Section 135, Texas Probate Code,
88-57 is amended to read as follows:
88-58 Sec. 135. Closing Temporary Administration <or Guardianship>
88-59 SECTION 27. The heading to Chapter VII, Texas Probate Code,
88-60 is amended to read as follows:
88-61 CHAPTER VII. EXECUTORS AND<,> ADMINISTRATORS<,
88-62 AND GUARDIANS>
88-63 SECTION 28. Section 186, Texas Probate Code, is amended to
88-64 read as follows:
88-65 Sec. 186. Letters or Certificate Made Evidence. Letters
88-66 testamentary or<,> of administration<, or of guardianship,> or a
88-67 certificate of the clerk of the court which granted the same, under
88-68 the seal of such court, that said letters have been issued, shall
88-69 be sufficient evidence of the appointment and qualification of the
88-70 personal representative of an estate <or ward> and of the date of
89-1 qualification.
89-2 SECTION 29. Section 189, Texas Probate Code, is amended to
89-3 read as follows:
89-4 Sec. 189. How Executors AND<,> Administrators<, and
89-5 Guardians> Shall Qualify. A personal representative shall be
89-6 deemed to have duly qualified when he shall have taken and filed
89-7 his oath and made the required bond, had the same approved by the
89-8 judge, and filed it with the clerk. In case of an executor <or
89-9 guardian> who is not required to make bond, he shall be deemed to
89-10 have duly qualified when he shall have taken and filed his oath
89-11 required by law.
89-12 SECTION 30. Section 192, Texas Probate Code, is amended to
89-13 read as follows:
89-14 Sec. 192. Time for Taking Oath and Giving Bond. The oath of
89-15 a personal representative may be taken and subscribed, or his bond
89-16 may be given and approved, at any time before the expiration of
89-17 twenty days after the date of the order granting letters
89-18 testamentary or of administration <or of guardianship>, as the case
89-19 may be, or before such letters shall have been revoked for a
89-20 failure to qualify within the time allowed. All such oaths may be
89-21 taken before any person authorized to administer oaths under the
89-22 laws of this State.
89-23 SECTION 31. Section 194, Texas Probate Code, is amended to
89-24 read as follows:
89-25 Sec. 194. Bonds of Personal Representatives of Estates.
89-26 Except when bond is not required under the provisions of this Code,
89-27 before the issuance of letters testamentary<,> or of administration
89-28 <or guardianship of estates>, the recipient of letters shall enter
89-29 into bond conditioned as required by law, payable to the county
89-30 judge or probate judge of the county in which the probate
89-31 proceedings are pending and to his successors in office. Such
89-32 bonds shall bear the written approval of either of such judges in
89-33 his official capacity, and shall be executed and approved in
89-34 accordance with the following rules:
89-35 1. Court to Fix Penalty. The penalty of the bond
89-36 shall be fixed by the judge, in an amount deemed sufficient to
89-37 protect the estate and its creditors, as hereinafter provided.
89-38 2. Bond to Protect Creditors Only, When. If the
89-39 person to whom letters testamentary or of administration is granted
89-40 is also entitled to all of the decedent's estate, after payment of
89-41 debts, the bond shall be in an amount sufficient to protect
89-42 creditors only, notwithstanding the rules applicable generally to
89-43 bonds of personal representatives of estates.
89-44 3. Before Fixing Penalty, Court to Hear Evidence. In
89-45 any case where a bond is, or shall be, required of a personal
89-46 representative of an estate, the court shall, before fixing the
89-47 penalty of the bond, hear evidence and determine:
89-48 (a) The amount of cash on hand and where
89-49 deposited, and the amount of cash estimated to be needed for
89-50 administrative purposes, including operation of a business,
89-51 factory, farm or ranch owned by the estate, and expenses of
89-52 administration for one (1) year; and
89-53 (b) The revenue anticipated to be received in
89-54 the succeeding twelve (12) months from dividends, interest,
89-55 rentals, or use of real or personal property belonging to the
89-56 estate and the aggregate amount of any installments or periodical
89-57 payments to be collected; and
89-58 (c) The estimated value of certificates of
89-59 stock, bonds, notes, or securities of the estate or ward, the name
89-60 of the depository, if any, in which said assets are held for
89-61 safekeeping, the face value of life insurance or other policies
89-62 payable to the person on whose estate administration is sought, or
89-63 to such estate, and such other personal property as is owned by the
89-64 estate, or by one under disability; and
89-65 (d) The estimated amount of debts due and owing
89-66 by the estate or ward.
89-67 4. Penalty of Bond. The penalty of the bond shall be
89-68 fixed by the judge in an amount equal to the estimated value of all
89-69 personal property belonging to the estate, or to the person under
89-70 disability, together with an additional amount to cover revenue
90-1 anticipated to be derived during the succeeding twelve (12) months
90-2 from interest, dividends, collectible claims, the aggregate amount
90-3 of any installments or periodical payments exclusive of income
90-4 derived or to be derived from federal social security payments, and
90-5 rentals for use of real and personal property; provided, that the
90-6 penalty of the original bond shall be reduced in proportion to the
90-7 amount of cash or value of securities or other assets authorized or
90-8 required to be deposited or placed in safekeeping by order of
90-9 court, or voluntarily made by the representative or by his sureties
90-10 as hereinafter provided in Subdivisions 6 and 7 hereof.
90-11 5. Agreement as to Deposit of Assets. It shall be
90-12 lawful, and the court may require such action when deemed in the
90-13 best interest of an estate <or ward>, for a personal representative
90-14 to agree with the surety or sureties, either corporate or personal,
90-15 for the deposit of any or all cash, and safekeeping of other assets
90-16 of the estate in a domestic state or national bank, trust company,
90-17 savings and loan association, or other domestic corporate
90-18 depository, duly incorporated and qualified to act as such under
90-19 the laws of this State or of the United States, if such deposit is
90-20 otherwise proper, in such manner as to prevent the withdrawal of
90-21 such moneys or other assets without the written consent of the
90-22 surety, or an order of the court made on such notice to the surety
90-23 as the court shall direct. No such agreement shall in any manner
90-24 release from or change the liability of the principal or sureties
90-25 as established by the terms of the bond.
90-26 6. Deposits Authorized or Required, When. Cash or
90-27 securities or other personal assets of an estate <or ward> or which
90-28 an estate <or ward> is entitled to receive may, and if deemed by
90-29 the court in the best interest of such estate <or ward> shall, be
90-30 deposited or placed in safekeeping as the case may be, in one or
90-31 more of the depositories hereinabove described upon such terms as
90-32 shall be prescribed by the court. The court in which the
90-33 proceedings are pending, upon its own motion, or upon written
90-34 application of the representative or of any other person interested
90-35 in the estate <or ward> may authorize or require additional assets
90-36 of the estate then on hand or as they accrue during the pendency of
90-37 the probate proceedings to be deposited or held in safekeeping as
90-38 provided above. The amount of the bond of the personal
90-39 representative shall be reduced in proportion to the cash so
90-40 deposited, or the value of the securities or other assets placed in
90-41 safekeeping. Such cash so deposited, or securities or other assets
90-42 held in safekeeping, or portions thereof, may be withdrawn from a
90-43 depository only upon order of the court, and the bond of the
90-44 personal representative shall be increased in proportion to the
90-45 amount of cash or the value of securities or other assets so
90-46 authorized to be withdrawn.
90-47 7. Representative May Deposit Cash or Securities of
90-48 His Own in Lieu of Bond. It shall be lawful for the personal
90-49 representative of an estate, in lieu of giving surety or sureties
90-50 on any bond which shall be required of him, or for the purpose of
90-51 reducing the amount of such bond, to deposit out of his own assets
90-52 cash or securities acceptable to the court, with a depository such
90-53 as named above or with any other corporate depository approved by
90-54 the court, if such deposit is otherwise proper, said deposit to be
90-55 equal in amount or value to the amount of the bond required, or the
90-56 bond reduced by the value of assets so deposited.
90-57 8. Rules Applicable to Making and Handling Deposits in
90-58 Lieu of Bond or to Reduce Penal Sum of Bond. (a) A receipt for a
90-59 deposit in lieu of surety or sureties shall be issued by the
90-60 depository, showing the amount of cash or, if securities, the
90-61 amount and description thereof, and agreeing not to disburse or
90-62 deliver the same except upon receipt of a certified copy of an
90-63 order of the court in which the proceedings are pending, and such
90-64 receipt shall be attached to the representative's bond and be
90-65 delivered to and filed by the county clerk after approval by the
90-66 judge.
90-67 (b) The amount of cash or securities on deposit
90-68 may be increased or decreased, by order of the court from time to
90-69 time, as the interest of the estate shall require.
90-70 (c) Deposits in lieu of sureties on bonds,
91-1 whether of cash or securities, may be withdrawn or released only on
91-2 order of a court having jurisdiction.
91-3 (d) Creditors shall have the same rights against
91-4 the representative and such deposits as are provided for recovery
91-5 against sureties on a bond.
91-6 (e) The court may on its own motion, or upon
91-7 written application by the representative or by any other person
91-8 interested in the estate, require that adequate bond be given by
91-9 the representative in lieu of such deposit, or authorize withdrawal
91-10 of the deposit and substitution of a bond with sureties therefor.
91-11 In either case, the representative shall file a sworn statement
91-12 showing the condition of the estate, and unless the same be filed
91-13 within twenty (20) days after being personally served with notice
91-14 of the filing of an application by another, or entry of the court's
91-15 motion, he shall be subject to removal as in other cases. The
91-16 deposit may not be released or withdrawn until the court has been
91-17 satisfied as to the condition of the estate, has determined the
91-18 amount of bond, and has received and approved the bond.
91-19 9. Withdrawal of Deposits when Estate Closed. Upon
91-20 the closing of an estate, any such deposit or portion thereof
91-21 remaining on hand, whether of the assets of the representative, or
91-22 of the assets of the estate, or of the surety, shall be released by
91-23 order of court and paid over to the person or persons entitled
91-24 thereto. No writ of attachment or garnishment shall lie against
91-25 the deposit, except as to claims of creditors of the estate being
91-26 administered, or persons interested therein, including distributees
91-27 and wards, and then only in the event distribution has been ordered
91-28 by the court, and to the extent only of such distribution as shall
91-29 have been ordered.
91-30 10. Who May Act as Sureties. The surety or sureties
91-31 on said bonds may be authorized corporate sureties, or personal
91-32 sureties.
91-33 11. Procedure When Bond Exceeds Fifty Thousand Dollars
91-34 ($50,000). When any such bond shall exceed Fifty Thousand Dollars
91-35 ($50,000) in penal sum, the court may require that such bond be
91-36 signed by two (2) or more authorized corporate sureties, or by one
91-37 such surety and two (2) or more good and sufficient personal
91-38 sureties. The estate shall pay the cost of a bond with corporate
91-39 sureties.
91-40 12. Qualifications of Personal Sureties. If the
91-41 sureties be natural persons, there shall not be less than two (2),
91-42 each of whom shall make affidavit in the manner prescribed in this
91-43 Code, and the judge shall be satisfied that he owns property within
91-44 this State, over and above that exempt by law, sufficient to
91-45 qualify as a surety as required by law. Except as provided by
91-46 law, only one surety is required if the surety is an authorized
91-47 corporate surety; provided, a personal surety, instead of making
91-48 affidavit, or creating a lien on specific real estate when such is
91-49 required, may, in the same manner as a personal representative,
91-50 deposit his own cash or securities, in lieu of pledging real
91-51 property as security, subject, so far as applicable, to the
91-52 provisions covering such deposits when made by personal
91-53 representatives.
91-54 13. Bonds of Temporary Appointees. In case of a
91-55 temporary administrator <or guardian>, the bond shall be in such
91-56 sum as the judge shall direct.
91-57 14. <Only One Bond for Guardian of Person and Estate.
91-58 Where one person is appointed guardian of both the person and
91-59 estate of a ward, only one bond shall be given by the guardian, in
91-60 the same amount that would be required from a guardian of the
91-61 estate only.>
91-62 <15.> Increased or Additional Bonds When Property
91-63 Sold, Rented, Leased for Mineral Development, or Money Borrowed or
91-64 Invested. The provisions in this Section with respect to deposit
91-65 of cash and safekeeping of securities shall cover, so far as they
91-66 may be applicable, the orders to be entered by the court when real
91-67 or personal property of an estate has been authorized to be sold or
91-68 rented, or money borrowed thereon, or when real property, or an
91-69 interest therein, has been authorized to be leased for mineral
91-70 development or subjected to unitization, the general bond having
92-1 been found insufficient<, or when money is borrowed or invested on
92-2 behalf of a ward>.
92-3 SECTION 32. Section 196, Texas Probate Code, is amended to
92-4 read as follows:
92-5 Sec. 196. Form of Bond. The following form, or the same in
92-6 substance, may be used for the bonds of personal representatives:
92-7 "The State of Texas
92-8 "County of ______
92-9 "Know all men by these presents that we, A. B., as principal,
92-10 and E. F., as sureties, are held and firmly bound unto the county
92-11 (or probate) judge of the County of ______, and his successors in
92-12 office, in the sum of ______ Dollars; conditioned that the above
92-13 bound A. B., who has been appointed executor of the last will and
92-14 testament of J. C., deceased (or has been appointed by the said
92-15 judge of ______ County, administrator with the will annexed of the
92-16 estate of J. C., deceased, or has been appointed by the said judge
92-17 of ______ County, administrator of the estate of J. C., deceased,
92-18 or has been appointed by the said judge of ______ County, temporary
92-19 administrator of the estate of J. C., deceased, as the case may
92-20 be<, or has been appointed by the judge of said county as guardian
92-21 or temporary guardian of the estate, or of the person or person and
92-22 estate of ______, stating in each case whether or not such person
92-23 is a minor or a person of unsound mind or an habitual drunkard or a
92-24 person for whom a guardian is necessary to receive funds or money
92-25 from a governmental source>), shall well and truly perform all of
92-26 the duties required of him by law under said appointment."
92-27 SECTION 33. Section 200, Texas Probate Code, is amended to
92-28 read as follows:
92-29 Sec. 200. Bond of Married Person Under Eighteen Years of
92-30 Age. When a person under eighteen years of age who is or has been
92-31 married shall accept and qualify as executor or<,> administrator,
92-32 <or guardian,> any bond required to be executed by him shall be as
92-33 valid and binding for all purposes as if he were of lawful age.
92-34 SECTION 34. Sections 214, 215, 216, and 217, Texas Probate
92-35 Code, are amended to read as follows:
92-36 Sec. 214. Executor <or Guardian> Without Bond Required to
92-37 Give Bond. Where no bond is required of an executor <or guardian>
92-38 appointed by will, any person having a debt, claim, or demand
92-39 against the estate, to the justice of which oath has been made by
92-40 himself, his agent, or attorney, or any other person interested in
92-41 such estate, whether in person or as the representative of another,
92-42 may file a complaint in writing in the court where such will is
92-43 probated, and the court shall thereupon cite such executor <or
92-44 guardian> to appear and show cause why he should not be required to
92-45 give bond.
92-46 Sec. 215. Order Requiring Bond. Upon hearing such
92-47 complaint, if it appears to the court that such executor <or
92-48 guardian> is wasting, mismanaging, or misapplying such estate, and
92-49 that thereby a creditor may probably lose his debt, or that thereby
92-50 some person's interest in the estate may be diminished or lost, the
92-51 court shall enter an order requiring such executor <or guardian> to
92-52 give bond within ten days from the date of such order.
92-53 Sec. 216. Bond in Such Case. Such bond shall be for an
92-54 amount sufficient to protect the estate and its creditors, to be
92-55 approved by, and payable to, the judge, conditioned that said
92-56 executor <or guardian> will well and truly administer such estate,
92-57 and that he will not waste, mismanage, or misapply the same.
92-58 Sec. 217. Failure to Give Bond. Should the executor <or
92-59 guardian> fail to give such bond within ten days after the order
92-60 requiring him to do so, then if the judge does not extend the time,
92-61 he shall, without citation, remove such executor <or guardian> and
92-62 appoint some competent person in his stead who shall administer the
92-63 estate according to the provisions of such will or the law, and
92-64 who, before he enters upon the administration of said estate, shall
92-65 take the oath required of an administrator with the will annexed
92-66 <or of a guardian as the case may be>, and shall give bond in the
92-67 same manner and in the same amount provided in this Code for the
92-68 issuance of original letters of administration <or guardianship>.
92-69 SECTION 35. Sections 220(c), (d), and (g), Texas Probate
92-70 Code, are amended to read as follows:
93-1 (c) When Named Executor <or Guardian> Becomes an Adult. If
93-2 one named in a will as executor <or guardian> is not an adult when
93-3 the will is probated and letters in any capacity have been granted
93-4 to another, such nominated executor <or guardian>, upon proof that
93-5 he has become an adult and is not otherwise disqualified, shall be
93-6 entitled to have such former letters revoked and appropriate
93-7 letters granted to him. And if the will names two or more persons
93-8 as executor, any one or more of whom are minors when such will is
93-9 probated, and letters have been issued to such only as are adults,
93-10 said minor or minors, upon becoming adults, if not otherwise
93-11 disqualified, shall be permitted to qualify and receive letters.
93-12 (d) Upon Return of Sick or Absent Executor <or
93-13 Guardian>. If one named in a will as executor <or guardian> was
93-14 sick or absent from the State when the testator died, or when the
93-15 will was proved, and therefore could not present the will for
93-16 probate within thirty days after the testator's death, or accept
93-17 and qualify as executor <or guardian> within twenty days after the
93-18 probate of the will, he may accept and qualify as executor <or
93-19 guardian> within sixty days after his return or recovery from
93-20 sickness, upon proof to the court that he was absent or ill; and,
93-21 if the letters have been issued to others, they shall be revoked.
93-22 (g) Payment or Tender of Money Due During Vacancy. Money or
93-23 other thing of value falling due to an estate <or ward> while the
93-24 office of the personal representative is vacant may be paid,
93-25 delivered, or tendered to the clerk of the court for credit of the
93-26 estate <or ward>, and the debtor, obligor, or payor shall thereby
93-27 be discharged of the obligation for all purposes to the extent and
93-28 purpose of such payment or tender. If the clerk accepts such
93-29 payment or tender, he shall issue a proper receipt therefor.
93-30 SECTION 36. Section 221(d), Texas Probate Code, is amended
93-31 to read as follows:
93-32 (d) Hearing. At the time set for hearing, unless it has
93-33 been continued by the court, if the court finds that citation has
93-34 been duly issued and served, he shall proceed to examine such
93-35 exhibit and account, and hear all evidence for and against the
93-36 same, and shall, if necessary, restate, and audit and settle the
93-37 same. If the court is satisfied that the matters entrusted to the
93-38 applicant have been handled and accounted for in accordance with
93-39 law, he shall enter an order of approval, and require that the
93-40 estate remaining in the possession of the applicant, if any, be
93-41 delivered to the person or persons entitled by law to receive it.
93-42 <A guardian of the person shall be required to comply with all
93-43 lawful orders of the court concerning his ward.>
93-44 SECTION 37. Sections 222(b) and (c), Texas Probate Code, are
93-45 amended to read as follows:
93-46 (b) With Notice. The court may remove a personal
93-47 representative on its own motion, or on the complaint of any
93-48 interested person, after the personal representative has been cited
93-49 by personal service to answer at a time and place fixed in the
93-50 notice, when:
93-51 (1) Sufficient grounds appear to support belief that
93-52 he has misapplied, embezzled, or removed from the state, or that he
93-53 is about to misapply, embezzle, or remove from the state, all or
93-54 any part of the property committed to his care;
93-55 (2) He fails to return any account which is required
93-56 by law to be made;
93-57 (3) He fails to obey any proper order of the court
93-58 having jurisdiction with respect to the performance of his duties;
93-59 (4) He is proved to have been guilty of gross
93-60 misconduct, or mismanagement in the performance of his duties;
93-61 (5) He becomes an incompetent, or is sentenced to the
93-62 penitentiary, or from any other cause becomes incapable of properly
93-63 performing the duties of his trust;
93-64 (6) As executor or administrator, he fails to make a
93-65 final settlement within three years after the grant of letters,
93-66 unless the time be extended by the court upon a showing of
93-67 sufficient cause supported by oath; or
93-68 (7) As executor or administrator, he fails to timely
93-69 file the notice required by Section 128A of this code<; or>
93-70 <(8) As guardian of the person, he cruelly treats the
94-1 ward, or neglects to educate or maintain the ward as liberally as
94-2 the means of such ward and the condition of his estate permit>.
94-3 (c) Order of Removal. The order of removal shall state the
94-4 cause thereof. It shall require that any letters issued to the one
94-5 removed shall, if he has been personally served with citation, be
94-6 surrendered, and that all such letters be cancelled of record,
94-7 whether delivered or not. It shall further require, as to all the
94-8 estate remaining in the hands of a removed person, delivery thereof
94-9 to the person or persons entitled thereto, or to one who has been
94-10 appointed and has qualified as successor representative<, and as to
94-11 the person of a ward, that control be relinquished as required in
94-12 the order>.
94-13 SECTION 38. Section 226, Texas Probate Code, is amended to
94-14 read as follows:
94-15 Sec. 226. Subsequent Executors <and Guardians> Also Succeed
94-16 to Prior Rights and Duties. Whenever an executor <or guardian>
94-17 shall accept and qualify after letters of administration shall have
94-18 been granted upon the estate, such executor <or guardian> shall, in
94-19 like manner, succeed to the previous administrator, and he shall
94-20 administer the estate in like manner as if his administration were
94-21 a continuation of the former one, subject, however, to any legal
94-22 directions of the testator contained in the will in relation to the
94-23 estate.
94-24 SECTION 39. Section 230, Texas Probate Code, is amended to
94-25 read as follows:
94-26 Sec. 230. Care of Property of Estates. <(a) Estates of
94-27 Decedents.> The executor or administrator shall take care of the
94-28 property of the estate of his testator or intestate as a prudent
94-29 man would take of his own property, and if there be any buildings
94-30 belonging to the estate, he shall keep the same in good repair,
94-31 extraordinary casualties excepted, unless directed not to do so by
94-32 an order of the court.
94-33 <(b) Estates of Wards.>
94-34 <(1) General Powers and Duties. The guardian of the
94-35 estate of a ward is entitled to the possession and management of
94-36 all properties belonging to the ward, to collect all debts,
94-37 rentals, or claims due such ward, to enforce all obligations in his
94-38 favor, and to bring and defend suits by or against him; but, in the
94-39 management of the estate, the guardian shall be governed by the
94-40 provisions of this Code. It is the duty of the guardian of the
94-41 estate to take care of and manage such estate as a prudent man
94-42 would manage his own property. He shall account for all rents,
94-43 profits, and revenues that the estate would have produced by such
94-44 prudent management.>
94-45 <(2) Power to Make Tax-Motivated Gifts. (A) On
94-46 application of the guardian or any interested party, and after
94-47 notice to all interested persons and to such other persons as the
94-48 court may direct, and on a showing that the ward will probably
94-49 remain incompetent during his lifetime, the court may, after
94-50 hearing and by order, authorize the guardian to apply such
94-51 principal or income of the ward's estate as is not required for the
94-52 support of the ward during his lifetime or of his family towards
94-53 the establishment of an estate plan for the purpose of minimizing
94-54 income, estate, inheritance, or other taxes payable out of the
94-55 ward's estate. The court may authorize the guardian to make gifts
94-56 of the ward's personal property or real estate, outright or in
94-57 trust, on behalf of the ward, to or for the benefit of
94-58 (i) organizations to which charitable contributions may be made
94-59 under the Internal Revenue Code and in which it is shown the ward
94-60 would reasonably have an interest, (ii) the ward's heirs at law
94-61 who are identifiable at the time of the order, (iii) devisees
94-62 under the ward's last validly executed will, if there be such a
94-63 will, (iv) and a person serving as guardian of the ward provided
94-64 he is eligible under either category (ii) or (iii) above.>
94-65 <(B) The person making application to the court
94-66 shall outline the proposed estate plan, setting forth all the
94-67 benefits to be derived therefrom. The application shall also
94-68 indicate that the planned disposition is consistent with the
94-69 intentions of the ward insofar as they can be ascertained. If the
94-70 ward's intentions cannot be ascertained, the ward will be presumed
95-1 to favor reduction in the incidence of the various forms of
95-2 taxation and the partial distribution of his estate as herein
95-3 provided.>
95-4 <(C) The court may appoint a guardian ad litem
95-5 for the ward or any interested party at any stage of the
95-6 proceedings, if deemed advisable for the protection of the ward or
95-7 the interested party.>
95-8 <(D) Subsequent modifications of an approved
95-9 plan may be made by similar application to the court.>
95-10 SECTION 40. Section 233A, Texas Probate Code, is amended to
95-11 read as follows:
95-12 Sec. 233A. Suits by Executors OR<,> Administrators<, or
95-13 Guardians>. Suits for the recovery of personal property, debts, or
95-14 damages and suits for title or possession of lands or for any right
95-15 attached to or growing out of the same or for injury or damage done
95-16 thereto may be instituted by executors or<,> administrators<, or
95-17 guardians> appointed in this state; and judgment in such cases
95-18 shall be conclusive, but may be set aside by any person interested
95-19 for fraud or collusion on the part of such executor or
95-20 administrator.
95-21 SECTION 41. Section 238, Texas Probate Code, is amended to
95-22 read as follows:
95-23 Sec. 238. Operation of Farm, Ranch, Factory, or Other
95-24 Business. If the estate owns a farm, ranch, factory, or other
95-25 business, the disposition of which has not been specifically
95-26 directed by will, and if the same be not required to be sold at
95-27 once for the payment of debts or other lawful purposes, the
95-28 representative, upon order of the court, shall carry on the
95-29 operation of such farm, ranch, factory, or other business, or cause
95-30 the same to be done, or rent the same, as shall appear to be for
95-31 the best interest of the estate. In deciding, the court shall
95-32 consider the condition of the estate, and the necessity that may
95-33 exist for future sale of such property or business for the payment
95-34 of debts, claims, or other lawful expenditures, and shall not
95-35 extend the time of renting any of the property beyond what appears
95-36 consistent with the speedy settlement of the estate of a deceased
95-37 person<, or the maintenance and education of a ward> or the
95-38 settlement of his estate.
95-39 SECTION 42. Section 241, Texas Probate Code, is amended to
95-40 read as follows:
95-41 Sec. 241. Compensation of Personal Representatives.
95-42 (a) <Compensation of Executors and Administrators.> Executors,
95-43 administrators, and temporary administrators shall be entitled to
95-44 receive a commission of five per cent (5%) on all sums they may
95-45 actually receive in cash, and the same per cent on all sums they
95-46 may actually pay out in cash, in the administration of the estate
95-47 on a finding by the court that the executor or administrator has
95-48 taken care of and managed the estate in compliance with the
95-49 standards of this code; provided, no commission shall be allowed
95-50 for receiving funds belonging to the testator or intestate which
95-51 were on hand or were held for the testator or intestate at the time
95-52 of his death in a financial institution or a brokerage firm,
95-53 including cash or a cash equivalent held in a checking account,
95-54 savings account, certificate of deposit, or money market account;
95-55 nor for collecting the proceeds of any life insurance policy; nor
95-56 for paying out cash to the heirs or legatees as such; provided,
95-57 further, however, that in no event shall the executor or
95-58 administrator be entitled in the aggregate to more than five per
95-59 cent (5%) of the gross fair market value of the estate subject to
95-60 administration. If the executor or administrator manages a farm,
95-61 ranch, factory, or other business of the estate, or if the
95-62 compensation as calculated above is unreasonably low, the court may
95-63 allow him reasonable compensation for his services, including
95-64 unusual effort to collect funds or life insurance. For this
95-65 purpose, the county court shall have jurisdiction to receive,
95-66 consider, and act on applications from independent executors. The
95-67 court may, on application of an interested person or on its own
95-68 motion, deny a commission allowed by this subsection in whole or in
95-69 part if:
95-70 (1) the court finds that the executor or administrator
96-1 has not taken care of and managed estate property prudently; or
96-2 (2) the executor or administrator has been removed
96-3 under Section 149C or 222 of this code.
96-4 (b) <Compensation of Guardians. A guardian of the person
96-5 alone is entitled to no compensation. The guardian or the
96-6 temporary guardian of the estate, or of the person and estate,
96-7 shall not be entitled to, or receive, any fee or commission on the
96-8 estate of the ward when it is first delivered to him; but shall be
96-9 entitled to a fee of five per cent (5%) on the gross income of the
96-10 ward's estate and five per cent (5%) on all money paid out on a
96-11 finding by the court that the guardian has taken care of and
96-12 managed the estate in compliance with the standards of this code.
96-13 The term "money paid out" shall not be construed to include any
96-14 money loaned or invested or paid over on the settlement of the
96-15 guardianship. If the guardian manages a farm, ranch, factory, or
96-16 other business of his ward, or if the compensation as calculated
96-17 above is unreasonably low, the court may allow him reasonable
96-18 compensation for his services. The court may, on application of an
96-19 interested person or on its own motion, deny a fee allowed by this
96-20 subsection in whole or in part if:>
96-21 <(1) the court finds that the guardian has not taken
96-22 care of and managed estate property prudently; or>
96-23 <(2) the guardian has been removed under Section 222
96-24 of this code.>
96-25 <(c)> Definition. In this section, "financial institution"
96-26 means an organization authorized to do business under state or
96-27 federal laws relating to financial institutions, including banks
96-28 and trust companies, savings banks, building and loan associations,
96-29 savings and loan companies or associations, and credit unions.
96-30 SECTION 43. The heading of Chapter VIII, Texas Probate Code,
96-31 is amended to read as follows:
96-32 CHAPTER VIII. PROCEEDINGS DURING ADMINISTRATION
96-33 <AND GUARDIANSHIP>
96-34 SECTION 44. Section 248, Texas Probate Code, is amended to
96-35 read as follows:
96-36 Sec. 248. Appointment of Appraisers. At any time after the
96-37 grant of letters testamentary or of administration <or of
96-38 guardianship>, upon the application of any interested person or if
96-39 the court shall deem necessary, the court shall appoint not less
96-40 than one nor more than three disinterested persons, citizens of the
96-41 county in which letters were granted, to appraise the property of
96-42 the estate. In such event and when part of the estate is situated
96-43 in a county other than the county in which letters were granted, if
96-44 the court shall deem necessary it may appoint not less than one nor
96-45 more than three disinterested persons, citizens of the county where
96-46 such part of the estate is situated, to appraise the property of
96-47 the estate situated therein.
96-48 SECTION 45. Section 250, Texas Probate Code, is amended to
96-49 read as follows:
96-50 Sec. 250. Inventory and Appraisement. Within ninety days
96-51 after his qualification, unless a longer time shall be granted by
96-52 the court, the representative shall file with the clerk of court a
96-53 verified, full and detailed inventory, in one written instrument,
96-54 of all the property of such estate which has come to his possession
96-55 or knowledge, which inventory shall include:
96-56 (a) all real property of the estate situated in the
96-57 State of Texas;
96-58 (b) all personal property of the estate wherever
96-59 situated. The representative shall set out in the inventory his
96-60 appraisement of the fair market value of each item thereof as of
96-61 the date of death in the case of grant of letters testamentary or
96-62 of administration <or as of the date of grant of letters of
96-63 guardianship>, as the case may be; provided that if the court shall
96-64 appoint an appraiser or appraisers of the estate, the
96-65 representative shall determine the fair market value of each item
96-66 of the inventory with the assistance of such appraiser or
96-67 appraisers and shall set out in the inventory such appraisement.
96-68 The inventory shall specify what portion of the property, if any,
96-69 is separate property and what portion, if any, is community
96-70 property. If any property is owned in common with others, the
97-1 interest owned by the estate shall be shown, together with the
97-2 names and relationship, if known, of co-owners. Such inventory,
97-3 when approved by the court and duly filed with the clerk of court,
97-4 shall constitute for all purposes the inventory and appraisement of
97-5 the estate referred to in this Code. The court for good cause
97-6 shown may require the filing of the inventory and appraisement at a
97-7 time prior to ninety days after the qualification of the
97-8 representative.
97-9 SECTION 46. Sections 295(a) and (b), Texas Probate Code, are
97-10 amended to read as follows:
97-11 (a) When notice required for lien claimants. Within four
97-12 months after receiving letters, the representative of an estate
97-13 shall give notice of the issuance of such letters to each and every
97-14 person having a claim for money against the estate of a decedent<,
97-15 or ward, as the case may be>, provided:
97-16 (1) That such claim is secured by a deed of trust,
97-17 mortgage, vendor's, mechanic's or other contractor's lien upon real
97-18 estate belonging to such estate; and
97-19 (2) That the instrument creating, extending, or
97-20 transferring such lien was duly recorded prior to the death of a
97-21 testator or intestate in the county in which the real estate
97-22 covered by such lien is situated, or prior to the time at which
97-23 title vested in an heir or devisee.
97-24 (b) When notice required for general claimants. Within four
97-25 months after receiving letters, the representative of an estate
97-26 shall give notice of the issuance of the letters to each person
97-27 having an outstanding claim for money against the estate of a
97-28 decedent<, or ward, as applicable,> if the representative has
97-29 actual knowledge of the claim.
97-30 SECTION 47. Section 298, Texas Probate Code, is amended to
97-31 read as follows:
97-32 Sec. 298. Claims Against Estates of Decedents <and Wards>.
97-33 (a) Claims Against Decedent's Estate Postponed if not Presented in
97-34 Six Months. All claims for money against a testator or intestate
97-35 shall be presented to the executor or administrator within six
97-36 months after the original grant of letters testamentary or of
97-37 administration; otherwise the payment thereof shall be postponed
97-38 until the claims which have been presented within six months and
97-39 allowed by the executor or administrator and approved by the court
97-40 have been first entirely paid; provided, however, that the failure
97-41 of the holder of a secured claim to present his claim within said
97-42 six month period shall not cause his claim to be postponed, but it
97-43 shall be treated as a claim to be paid in accordance with
97-44 subsequent provisions of this Code.
97-45 (b) <Time for Presentation of Claims to Guardians. Claims
97-46 may be presented to the guardian at any time when the estate is not
97-47 closed and when suit on such claims has not been barred by the
97-48 general statutes of limitation.>
97-49 <(c)> Claims Barred by Limitation Not to Be Allowed or
97-50 Approved. No claims against a decedent <or ward>, or against the
97-51 estate of the decedent <either>, on which a suit is barred by a
97-52 general statute of limitation applicable thereto shall be allowed
97-53 by a personal representative. If allowed by the representative and
97-54 the court is satisfied that limitation has run, the claim shall be
97-55 disapproved.
97-56 SECTION 48. Section 301, Texas Probate Code, is amended to
97-57 read as follows:
97-58 Sec. 301. Claims Must Be Authenticated. No <Except as
97-59 hereinafter provided with respect to the payment of unauthenticated
97-60 claims by guardians, no> personal representative of a decedent's
97-61 estate <or of the estate of a ward> shall allow, and the court
97-62 shall not approve, a claim for money against such estate, unless
97-63 such claim be supported by an affidavit that the claim is just and
97-64 that all legal offsets, payments, and credits known to the affiant
97-65 have been allowed. If the claim is not founded on a written
97-66 instrument or account, the affidavit shall also state the facts
97-67 upon which the claim is founded. A photostatic copy of any exhibit
97-68 or voucher necessary to prove a claim may be offered with and
97-69 attached to the claim in lieu of the original.
97-70 SECTION 49. Section 304, Texas Probate Code, is amended to
98-1 read as follows:
98-2 Sec. 304. Authentication of Claim by Others Than Individual
98-3 Owners. The cashier, treasurer, or managing official of a
98-4 corporation shall make the affidavit required to authenticate a
98-5 claim of such corporation. When an affidavit is made by an officer
98-6 of a corporation, or by an executor, administrator, <guardian,>
98-7 trustee, assignee, agent, or attorney, it shall be sufficient to
98-8 state in such affidavit that the person making it has made diligent
98-9 inquiry and examination, and that he believes that the claim is
98-10 just and that all legal offsets, payments, and credits made known
98-11 to the affiant have been allowed.
98-12 SECTION 50. Section 306(d), Texas Probate Code, is amended
98-13 to read as follows:
98-14 (d) Payment of Maturities on Secured Claims. If property
98-15 securing a claim allowed, approved, and fixed under Paragraph (2)
98-16 of Subsection (a) hereof is not sold or distributed within twelve
98-17 months from the date letters testamentary or of administration <or
98-18 guardianship> are granted, the representative of the estate shall
98-19 promptly pay all maturities which have accrued on the debt
98-20 according to the terms thereof, and shall perform all the terms of
98-21 any contract securing same. If the representative defaults in such
98-22 payment or performance, on motion of the claimholder, the court
98-23 shall require the sale of said property subject to the unmatured
98-24 part of such debt and apply the proceeds of the sale to the
98-25 liquidation of the maturities, or, at the option of the
98-26 claimholder, a motion may be made in a like manner to require the
98-27 sale of said property free of such lien and to apply the proceeds
98-28 to the payment of the whole debt.
98-29 SECTION 51. Section 311, Texas Probate Code, is amended to
98-30 read as follows:
98-31 Sec. 311. When Claims Entered in Docket. <(a) Claims
98-32 Against Estates of Decedents.> If a claim against the estate of a
98-33 decedent has been presented within six months after the issuance of
98-34 original testamentary letters or of administration, and all or part
98-35 of such claim is allowed by the executor or administrator, the
98-36 claim shall forthwith be filed with the county clerk of the proper
98-37 county, who shall enter the same in its proper place upon the claim
98-38 docket. If such claim is not so presented within such time, the
98-39 payment thereof, should it be approved in whole or in part, shall
98-40 be postponed until all other claims which have been presented,
98-41 allowed, and approved within the time prescribed have been first
98-42 entirely paid.
98-43 <(b) Claims Against Estates of Wards. After a claim against
98-44 a ward's estate has been presented to and allowed by the guardian,
98-45 either in whole or in part, the claim shall forthwith be filed with
98-46 the county clerk of the proper county, who shall enter it on the
98-47 claim docket.>
98-48 SECTION 52. Sections 312(a) and (e), Texas Probate Code, are
98-49 amended to read as follows:
98-50 (a) Contest of Claims. Any person interested in an estate
98-51 <or ward> may, at any time before the court has acted upon a claim,
98-52 appear and object in writing to the approval of the same, or any
98-53 part thereof, and in such case the parties shall be entitled to
98-54 process for witnesses, and the court shall hear proof and render
98-55 judgment as in ordinary suits.
98-56 (e) Appeal. When a claimant or any person interested in an
98-57 estate <or ward> shall be dissatisfied with the action of the court
98-58 upon a claim, he may appeal therefrom to the courts of <(civil)>
98-59 appeals, as from other judgments of the county court in probate
98-60 matters.
98-61 SECTION 53. Section 314, Texas Probate Code, is amended to
98-62 read as follows:
98-63 Sec. 314. Presentment of Claims a Prerequisite for Judgment.
98-64 No judgment shall be rendered in favor of a claimant upon any claim
98-65 for money which has not been legally presented to the
98-66 representative of an estate <or ward>, and rejected by him or by
98-67 the court, in whole or in part.
98-68 SECTION 54. Section 317, Texas Probate Code, is amended to
98-69 read as follows:
98-70 Sec. 317. Claims by Personal Representatives. (a) By
99-1 Executors or Administrators. The foregoing provisions of this Code
99-2 relative to the presentation of claims against an estate shall not
99-3 be construed to apply to any claim of the executor or administrator
99-4 against his testator or intestate; but an executor or administrator
99-5 holding such claim shall file the same in the court granting his
99-6 letters, verified by affidavit as required in other cases, within
99-7 six months after he has qualified, or such claim shall be barred.
99-8 (b) <By Guardians. A claim which the guardian held against
99-9 the ward or his estate at the time of his appointment, or which has
99-10 since accrued, shall be verified by affidavit as required in other
99-11 cases, and presented to the clerk of the court in which the
99-12 guardianship is pending, who shall enter it upon the claim docket,
99-13 after which it shall take the same course as other claims.>
99-14 <(c)> Action on Such Claims. When a claim by an executor
99-15 or<,> administrator<, or guardian> has been filed with the court
99-16 within the required time, such claim shall be entered upon the
99-17 claim docket and acted upon by the court in the same manner as in
99-18 other cases, and, when the claim has been acted upon by the court,
99-19 an appeal from the judgment of the court may be taken as in other
99-20 cases.
99-21 (c) <(d)> Provisions Not Applicable to Certain Claims. The
99-22 foregoing provisions relative to the presentment of claims shall
99-23 not be so construed as to apply to the claim of any heir, devisee,
99-24 or legatee who claims in such capacity, or to any claim that
99-25 accrues against the estate after the granting of letters for which
99-26 the representative of the estate has contracted.
99-27 SECTION 55. Section 319, Texas Probate Code, is amended to
99-28 read as follows:
99-29 Sec. 319. Claims Not to Be Paid Unless Approved. No <Except
99-30 as provided for payment at his own risk by a guardian of an
99-31 unauthenticated claim, no> claim for money against the estate of a
99-32 decedent <or ward>, or any part thereof, shall be paid until it has
99-33 been approved by the court or established by the judgment of a
99-34 court of competent jurisdiction.
99-35 SECTION 56. Section 320, Texas Probate Code, is amended to
99-36 read as follows:
99-37 Sec. 320. Order of Payment of Claims. (a) <Estates of
99-38 Decedents.> Executors and administrators, when they have funds in
99-39 their hands belonging to the estate, shall pay in the following
99-40 order:
99-41 (1) Funeral expenses and expenses of last sickness, in
99-42 an amount not to exceed Five Thousand Dollars, if the claims
99-43 therefor have been presented within sixty days from the original
99-44 grant of letters testamentary or administration, but if not
99-45 presented within such time, their payment shall be postponed until
99-46 the allowances made to the widow and children, or to either, are
99-47 paid.
99-48 (2) Allowances made to the widow and children, or to
99-49 either.
99-50 (3) Expenses of administration and the expenses
99-51 incurred in the preservation, safekeeping, and management of the
99-52 estate.
99-53 (4) Other claims against the estate in the order of
99-54 their classification.
99-55 (b) <Estates of Wards. The guardian shall pay all claims
99-56 against the estate of his ward that have been allowed and approved,
99-57 or established by suit, as soon as practicable, in the following
99-58 order:>
99-59 <(1) expenses for the care, maintenance and education
99-60 of the ward or his dependents;>
99-61 <(2) funeral expenses and expenses of last sickness,
99-62 if the guardianship is kept open after the death of the ward as
99-63 provided by Section 404A of this Code, except that any claim
99-64 against the estate of a ward that has been allowed and approved or
99-65 established by suit prior to the death of the ward shall be paid
99-66 prior to the funeral expenses and expenses of last sickness;>
99-67 <(3) expenses of administration; and>
99-68 <(4) other claims against the estate.>
99-69 <(c)> A claimant whose claim has not been paid may petition
99-70 the court for determination of his claim at any time before it is
100-1 barred by the applicable statute of limitations and upon due proof
100-2 procure an order for its allowance and payment from the estate.
100-3 SECTION 57. Section 321, Texas Probate Code, is amended to
100-4 read as follows:
100-5 Sec. 321. Deficiency of Assets. When there is a deficiency
100-6 of assets to pay all claims of the same class, the claims in such
100-7 class shall be paid pro rata, as directed by the court, and in the
100-8 order directed. No executor or<,> administrator<, or guardian>
100-9 shall be allowed to pay any claims, whether the estate is solvent
100-10 or insolvent, except with the pro rata amount of the funds of the
100-11 estate that have come to hand.
100-12 SECTION 58. Section 324, Texas Probate Code, is amended to
100-13 read as follows:
100-14 Sec. 324. Representatives Not to Purchase Claims. It shall
100-15 be unlawful, and cause for removal, for an executor or<,>
100-16 administrator, <or guardian,> whether acting under appointment by
100-17 will or under orders of the court, to purchase for his own use or
100-18 for any purposes whatsoever, any claim against the estate he
100-19 represents. Upon written complaint by any person interested in the
100-20 estate, and satisfactory proof of violation of this provision,
100-21 after citation and hearing, the court shall enter its order
100-22 cancelling the claim, and no part thereof shall be paid out of the
100-23 estate; and the judge may, in his discretion, remove such
100-24 representative.
100-25 SECTION 59. Sections 329(a) and (c), Texas Probate Code, are
100-26 amended to read as follows:
100-27 (a) Circumstances Under Which Money May Be Borrowed. Any
100-28 real or personal property of an estate may be mortgaged or pledged
100-29 by deed of trust or otherwise as security for an indebtedness,
100-30 under order of the court, when necessary for any of the following
100-31 purposes:
100-32 (1) For the payment of any ad valorem, income, gift,
100-33 estate, inheritance, or transfer taxes upon the transfer of an
100-34 estate or due from a decedent <or ward> or his estate, regardless
100-35 of whether such taxes are assessed by a state, or any of its
100-36 political subdivisions, or by the federal government or by a
100-37 foreign country; or
100-38 (2) For payment of expenses of administration,
100-39 including sums necessary for operation of a business, farm, or
100-40 ranch owned by the estate; or
100-41 (3) For payment of claims allowed and approved, or
100-42 established by suit, against the estate; or
100-43 (4) To renew and extend a valid, existing lien<; or>
100-44 <(5) In the case of guardians of estates, if the real
100-45 estate of the ward is not revenue producing but could be made
100-46 revenue producing by certain improvements and repairs, or if the
100-47 revenue therefrom could be increased by making such improvements or
100-48 repairs thereon, to make such improvements or repairs; or>
100-49 <(6) In the case of guardians of estates, the probate
100-50 court in its discretion may authorize the borrowing of money if the
100-51 court finds it to be in the best interest of the ward or may
100-52 authorize the borrowing of money for the purchase of a residence
100-53 for the ward and any dependents of the ward>.
100-54 (c) Order Authorizing Such Borrowing, or Extension of
100-55 Lien. The court, if satisfied by the evidence adduced at the
100-56 hearing upon said application that it is to the interest of the
100-57 estate to borrow money, or to extend and renew an existing lien,
100-58 shall issue its order to that effect, setting out the terms and
100-59 conditions of the authority granted; provided, however<: (1) that
100-60 as to the estate of a decedent>, the loan or renewal shall not be
100-61 for a term longer than three years from the granting of original
100-62 letters to the representative of such estate, but the court may
100-63 authorize an extension of such lien for not more than one
100-64 additional year without further citation or notice<; and (2) that
100-65 as to the estate of a ward, the term of the loan or renewal shall
100-66 be for such length of time as the court shall determine to be for
100-67 the best interest of such estate. If a new lien is created upon
100-68 property of an estate, the court may require that the
100-69 representative's general bond be increased, or an additional bond
100-70 given, for the protection of the estate and its creditors, as for
101-1 the sale of real property belonging to the estate>.
101-2 SECTION 60. Section 339, Texas Probate Code, is amended to
101-3 read as follows:
101-4 Sec. 339. Sales of Personal Property to Be Reported; Decree
101-5 Vests Title. All sales of personal property shall be reported to
101-6 the court, and the laws regulating sales of real estate as to
101-7 confirmation or disapproval of sales shall apply, but no conveyance
101-8 shall be necessary. The decree confirming the sale of personal
101-9 property shall vest the right and title of the estate of the
101-10 intestate <or ward> in the purchaser who has complied with the
101-11 terms of the sale, and shall be prima facie evidence that all
101-12 requirements of the law in making the sale have been met. The
101-13 representative of an estate may, upon request, issue a bill of sale
101-14 without warranty to the purchaser as evidence of title, the expense
101-15 thereof to be borne by the purchaser.
101-16 SECTION 61. Section 341, Texas Probate Code, is amended to
101-17 read as follows:
101-18 Sec. 341. Application for Sale of Real Estate.
101-19 <(a)> Application may be made to the court for an order to sell
101-20 property of the estate when it appears necessary or advisable in
101-21 order to:
101-22 (1) Pay expenses of administration, funeral expenses
101-23 and expenses of last sickness of decedents, and allowances and
101-24 claims against the estates of decedents <and wards>.
101-25 (2) <Make up the deficiency when the income of a
101-26 ward's estate, and the personal property thereof, and the proceeds
101-27 of previous sales, are insufficient for the education and
101-28 maintenance of the ward, or to pay debts against the estate.>
101-29 <(3) Dispose of property of the estate of a ward which
101-30 consists in whole or in part of an undivided interest in real
101-31 estate, when it is deemed to the best interest of the estate to
101-32 sell such interest.>
101-33 <(4) Dispose of real estate of a ward, any part of
101-34 which is nonproductive or does not produce sufficient revenue to
101-35 make a fair return upon the value of such real estate, when the
101-36 improvement of same with a view to making it productive is not
101-37 deemed advantageous or advisable, and it appears that the sale of
101-38 such real estate and the investment of the money derived therefrom
101-39 would be to the best interest of the estate.>
101-40 <(5) Conserve the estate of a ward by selling mineral
101-41 interest and/or royalties on minerals in place owned by a ward.>
101-42 <(6)> Dispose of any interest in real property of the
101-43 estate of a decedent, when it is deemed to the best interest of the
101-44 estate to sell such interest.
101-45 SECTION 62. Section 351, Texas Probate Code, is amended to
101-46 read as follows:
101-47 Sec. 351. Sales of Easements and Right of Ways. It shall be
101-48 lawful to sell and convey easements and rights of ways on, under,
101-49 and over the lands of an estate being administered under orders of
101-50 a court, regardless of whether the proceeds of such a sale are
101-51 required for payment of charges or claims against the estate, or
101-52 for other lawful purposes. The procedure for such sales shall be
101-53 the same as now or hereafter provided by law for sales of real
101-54 property of estates of decedents <or wards> at private sale.
101-55 SECTION 63. Sections 352(c) and (d), Texas Probate Code, are
101-56 amended to read as follows:
101-57 (c) A personal representative of a decedent <or of a ward
101-58 who has been adjudged incompetent> may purchase property from the
101-59 estate of the decedent <or ward> in compliance with the terms of a
101-60 written executory contract signed by the decedent <or by the ward
101-61 before the ward became incompetent>, including a contract for deed,
101-62 earnest money contract, buy/sell agreement, or stock purchase or
101-63 redemption agreement.
101-64 (d) After issuing the notice required by this subsection, a
101-65 personal representative of an estate, including an independent
101-66 administrator, may purchase property from the estate on the court's
101-67 determination that the sale is in the best interest of the estate.
101-68 The personal representative shall give notice by certified mail,
101-69 return receipt requested, unless the court requires another form of
101-70 notice, to each distributee of a deceased person's estate and to
102-1 each creditor whose claim remains unsettled after presenting a
102-2 claim within six months of the original grant of letters. <In the
102-3 case of an application filed by the guardian of the estate of a
102-4 ward, the court shall appoint an attorney ad litem to represent the
102-5 ward with respect to the sale.> The court may require additional
102-6 notice or it may allow for the waiver of the notice required for a
102-7 sale made under this subsection.
102-8 SECTION 64. Section 367(b), Texas Probate Code, is amended
102-9 to read as follows:
102-10 (b) Mineral Leases, With or Without Pooling or
102-11 Unitization. Personal representatives of the estates of
102-12 decedents<, minors, and incompetents>, appointed and qualified
102-13 under the laws of this State, and acting solely under orders of
102-14 court, may be authorized by the court in which the probate
102-15 proceedings on such estates are pending to make, execute, and
102-16 deliver leases, with or without unitization clauses or pooling
102-17 provisions, providing for the exploration for, and development and
102-18 production of, oil, other liquid hydrocarbons, gas (including all
102-19 liquid hydrocarbons in the gaseous phase), metals, and other solid
102-20 minerals, and other minerals, or any of such minerals in place,
102-21 belonging to such estates.
102-22 SECTION 65. Section 372, Texas Probate Code, is amended to
102-23 read as follows:
102-24 Sec. 372. Validation of Certain Leases and Pooling or
102-25 Unitization Agreements Based on Previous Statutes. All presently
102-26 existing leases on the oil, gas, or other minerals, or one or more
102-27 of them, belonging to the estates of decedents<, minors, persons of
102-28 unsound mind, or habitual drunkards>, and all agreements with
102-29 respect to pooling, or unitization thereof, or one or more of them,
102-30 or any interest therein, with like properties of others<, including
102-31 agreements contemplated or authorized to be made under the terms of
102-32 Section 3, Article 6008-b, Vernon's Texas Revised Civil Statutes of
102-33 1925, as amended,> having been authorized by the court having
102-34 venue, and executed and delivered by the executors, administrators,
102-35 <guardians,> or other fiduciaries of their estates in substantial
102-36 conformity to the rules set forth in statutes heretofore existing,
102-37 providing for only seven days notice in some instances, and also
102-38 for a brief order designating a time and place for hearing, are
102-39 hereby validated in so far as said period of notice is concerned,
102-40 and in so far as the absence of any order setting a time and place
102-41 for hearing is concerned; provided, this shall not apply to any
102-42 lease or pooling or unitization agreement involved in any suit
102-43 pending on the effective date of this Code wherein either the
102-44 length of time of said notice or the absence of such order is in
102-45 issue.
102-46 SECTION 66. Section 399, Texas Probate Code, is amended to
102-47 read as follows:
102-48 Sec. 399. Annual Accounts Required. (a) Estates of
102-49 Decedents <and Wards> Being Administered Under Order of Court. The
102-50 personal representative of the estate of a decedent <or ward> being
102-51 administered under order of court shall, upon the expiration of
102-52 twelve (12) months from the date of qualification and receipt of
102-53 letters, return to the court an exhibit in writing under oath
102-54 setting forth a list of all claims against the estate that were
102-55 presented to him within the period covered by the account,
102-56 specifying which have been allowed by him, which have been paid,
102-57 which have been rejected and the date when rejected, which have
102-58 been sued upon, and the condition of the suit, and show:
102-59 (1) All property that has come to his knowledge or
102-60 into his possession not previously listed or inventoried as
102-61 property of the estate <or ward, as the case may be>.
102-62 (2) Any changes in the property of the estate <or
102-63 ward> which have not been previously reported.
102-64 (3) A complete account of receipts and disbursements
102-65 for the period covered by the account, and the source and nature
102-66 thereof, with receipts of principal and income to be shown
102-67 separately.
102-68 (4) A complete, accurate and detailed description of
102-69 the property being administered, the condition of the property and
102-70 the use being made thereof, and, if rented, the terms upon and the
103-1 price for which rented.
103-2 (5) The cash balance on hand and the name and location
103-3 of the depository wherein such balance is kept; also, any other
103-4 sums of cash in savings accounts or other form, deposited subject
103-5 to court order, and the name and location of the depository
103-6 thereof.
103-7 (6) A detailed description of personal property of the
103-8 estate, which shall, with respect to bonds, notes, and other
103-9 securities, include the names of obligor and obligee, or if payable
103-10 to bearer, so state; the date of issue and maturity; the rate of
103-11 interest; serial or other identifying numbers; in what manner the
103-12 property is secured; and other data necessary to identify the same
103-13 fully, and how and where held for safekeeping.
103-14 (b) Annual Reports Continue Until Estate Closed. Each
103-15 personal representative of the estate of a decedent <or ward> shall
103-16 continue to file annual accounts conforming to the essential
103-17 requirements of those in Subsection (a) hereof as to changes in the
103-18 assets of the estate after rendition of the former account so that
103-19 the true condition of the estate, with respect to money,
103-20 securities, and other property, can be ascertained by the court or
103-21 by any interested person, by adding to the balances forward the
103-22 receipts, and then subtracting the disbursements. The description
103-23 of property sufficiently described in an inventory or previous
103-24 account may be by reference thereto.
103-25 (c) <Guardians of the Person. The guardian of the person,
103-26 when there is a separate guardian of the estate, shall at the
103-27 expiration of twelve (12) months from the date of his qualification
103-28 and receipt of letters, and annually thereafter, return to the
103-29 court his sworn account showing each item of receipts and
103-30 disbursements for the support and maintenance of the ward, his
103-31 education when necessary, and support and maintenance of the ward's
103-32 dependents, when authorized by order of court. All who are
103-33 guardians of the person shall include in their reports facts
103-34 concerning each ward's physical welfare, his well-being, and his
103-35 progress in education, if the latter be pertinent. Unless the
103-36 judge is satisfied that the facts stated are true, he shall issue
103-37 such orders as are necessary for the best interest of the ward.>
103-38 <(d)> Supporting Vouchers, etc., Attached to
103-39 Accounts. Annexed to all annual accounts of representatives of
103-40 estates <and wards, and, so far as applicable, accounts of
103-41 guardians of the persons of wards and guardians of those wards
103-42 entitled to receive governmental funds, required by this Section,>
103-43 shall be:
103-44 (1) Proper vouchers for each item of credit claimed in
103-45 the account, or, in the absence of such voucher, the item must be
103-46 supported by evidence satisfactory to the court. Original vouchers
103-47 may, upon application, be returned to the representative after
103-48 approval of his account.
103-49 (2) An official letter from the bank or other
103-50 depository in which the money on hand of the estate <or ward> is
103-51 deposited, showing the amounts in general or special deposits.
103-52 (3) Proof of the existence and possession of
103-53 securities owned by the estate, or shown by the accounting, as well
103-54 as other assets held by a depository subject to orders of the
103-55 court, the proof to be by one of the following means:
103-56 a. By an official letter from the bank or other
103-57 depository wherein said securities or other assets are held for
103-58 safekeeping; provided, that if such depository is the
103-59 representative, the official letter shall be signed by a
103-60 representative of such depository other than the one verifying the
103-61 account; or
103-62 b. By a certificate of an authorized
103-63 representative of the corporation which is surety on the
103-64 representative's bonds; or
103-65 c. By a certificate of the clerk or a deputy
103-66 clerk of a court of record in this State; or
103-67 d. By an affidavit of any other reputable person
103-68 designated by the court upon request of the representative or other
103-69 interested party.
103-70 Such certificate or affidavit shall be to the effect that the
104-1 affiant has examined the assets exhibited to him by the
104-2 representative as assets of the estate in which the accounting is
104-3 made, and shall describe the assets by reference to the account or
104-4 otherwise sufficiently to identify those so exhibited, and shall
104-5 state the time when and the place where exhibited. In lieu of
104-6 using a certificate or an affidavit, the representative may exhibit
104-7 the securities to the judge of the court who shall endorse on the
104-8 account, or include in his order with respect thereto, a statement
104-9 that the securities shown therein as on hand were in fact exhibited
104-10 to him, and that those so exhibited were the same as those shown in
104-11 the account, or note any variance. If the securities are exhibited
104-12 at any place other than where deposited for safekeeping, it shall
104-13 be at the expense and risk of the representative. The court may
104-14 require additional evidence as to the existence and custody of such
104-15 securities and other personal property as in his discretion he
104-16 shall deem proper; and may require the representative to exhibit
104-17 them to the court, or any person designated by him, at any time at
104-18 the place where held for safekeeping.
104-19 (d) <(e)> Verification of Account. The representative
104-20 filing the account shall attach thereto his affidavit that it
104-21 contains a correct and complete statement of the matters to which
104-22 it relates.
104-23 <(f) Annual Accounts May be Waived, When. In cases in which
104-24 the income of a ward's estate from real property becomes
104-25 negligible, and the estate owns no personal property, the estate
104-26 may be closed, as hereinafter provided. If the estate owns
104-27 personal property which produces negligible or fixed income, the
104-28 court shall have the power to waive the filing of annual accounts,
104-29 and the court may permit the guardian to receive all income and
104-30 apply it to the support, maintenance, and education of the ward,
104-31 and account to the court for income and corpus of the estate when
104-32 the same must be closed.>
104-33 SECTION 67. Section 400, Texas Probate Code, is amended to
104-34 read as follows:
104-35 Sec. 400. Penalty for Failure to File Annual Account.
104-36 Should any personal representative of an estate<, or guardian of
104-37 the person of a ward,> fail to return any annual account required
104-38 by preceding sections of this Code, any person interested in said
104-39 estate <or ward> may, upon written complaint, or the court upon its
104-40 own motion may, cause the personal representative to be cited to
104-41 return such account, and show cause for such failure. If he fails
104-42 to return said account after being so cited, or fails to show good
104-43 cause for his failure so to do, the court, upon hearing, may revoke
104-44 the letters of such representative, and may fine him in a sum not
104-45 to exceed Five Hundred Dollars ($500). He and his sureties shall
104-46 be liable for any fine imposed, and for all damages and costs
104-47 sustained by reason of such failure, which may be recovered in any
104-48 court of competent jurisdiction.
104-49 SECTION 68. Section 404, Texas Probate Code, is amended to
104-50 read as follows:
104-51 Sec. 404. Closing Administration of Estates of Decedents
104-52 <and Guardianship of Wards or Their Estates>.
104-53 <(a)> Administration of the estates of decedents <and guardianship
104-54 of the persons and estates of wards> shall be settled and closed<:>
104-55 <(1)> when all the debts known to exist against the
104-56 estate of a deceased person have been paid, or when they have been
104-57 paid so far as the assets in the hands of an administrator or
104-58 executor of such estate will permit, and when there is no further
104-59 need for administration<;>
104-60 <(2) when a minor ward dies, or becomes an adult by
104-61 becoming eighteen years of age, or by removal of disabilities of
104-62 minority according to the law of this state, or by marriage;>
104-63 <(3) when an incompetent ward dies, or is decreed as
104-64 provided by law to have been restored to sound mind or sober
104-65 habits, or, being married, when his or her spouse has qualified as
104-66 survivor in community;>
104-67 <(4) when a ward entitled to funds from a governmental
104-68 source dies, or when the court finds that the necessity for the
104-69 guardianship of that person has ended;>
104-70 <(5) when the estate of a ward becomes exhausted; or>
105-1 <(6) when the foreseeable income accruing to a ward or
105-2 to his estate is so negligible that maintaining the guardianship in
105-3 force would be burdensome.>
105-4 <(b) In a case arising under Subsection (a)(6) of this
105-5 section, the court may authorize the income to be paid to a parent,
105-6 or some other person who has acted as guardian, to assist as far as
105-7 possible in the maintenance of the ward, and without liability to
105-8 account to the court for the income.>
105-9 <(c) When the estate of a minor ward consists only of cash
105-10 or cash equivalents in an amount of not more than $25,000, the
105-11 guardianship of the estate may be terminated and the assets paid to
105-12 the county clerk of the county in which the guardianship proceeding
105-13 is pending, and the clerk shall manage the funds as provided by
105-14 Section 144(a) of this code>.
105-15 SECTION 69. Section 405, Texas Probate Code, is amended to
105-16 read as follows:
105-17 Sec. 405. Account for Final Settlement of Estates of
105-18 Decedents <and Persons and Estates of Wards>. When administration
105-19 of the estate of a decedent<, or guardianship of person or estate,
105-20 or of the person and estate of a ward,> is to be settled and
105-21 closed, the personal representative of such estate <or of such
105-22 ward> shall present to the court his verified account for final
105-23 settlement. In such account it shall be sufficient to refer to the
105-24 inventory without describing each item of property in detail, and
105-25 to refer to and adopt any and all proceedings had in the
105-26 administration <or guardianship, as the case may be,> concerning
105-27 sales, renting or hiring, leasing for mineral development, or any
105-28 other transactions on behalf of the estate <or of the ward, as the
105-29 case may be>, including exhibits, accounts, and vouchers previously
105-30 filed and approved, without restating the particular items thereof.
105-31 Each final account, however, shall be accompanied by proper
105-32 vouchers in support of each item thereof not already accounted for
105-33 and shall show, either by reference to any proceedings authorized
105-34 above or by statement of the facts:
105-35 <(a) As to Estates of Decedents.>
105-36 1. The property belonging to the estate which has come
105-37 into the hands of the executor or administrator.
105-38 2. The disposition that has been made of such
105-39 property.
105-40 3. The debts that have been paid.
105-41 4. The debts and expenses, if any, still owing by the
105-42 estate.
105-43 5. The property of the estate, if any, still remaining
105-44 on hand.
105-45 6. The persons entitled to receive such estate, their
105-46 relationship to the decedent, and their residence, if known, and
105-47 whether adults or minors, and, if minors, the names of their
105-48 guardians, if any.
105-49 7. All advancements or payments that have been made,
105-50 if any, by the executor or administrator from such estate to any
105-51 such person.
105-52 <(b) As to Estates of Wards.>
105-53 <1. The property, rents, revenues, and profits
105-54 received by the guardian, and belonging to his ward, during his
105-55 guardianship.>
105-56 <2. The disposition made of such property, rents,
105-57 revenues, and profits.>
105-58 <3. The expenses and debts, if any, against the estate
105-59 remaining unpaid.>
105-60 <4. The property of the estate remaining in the hands
105-61 of such guardian, if any.>
105-62 <5. Such other facts as appear necessary to a full and
105-63 definite understanding of the exact condition of the guardianship.>
105-64 SECTION 70. Section 406, Texas Probate Code, is amended to
105-65 read as follows:
105-66 Sec. 406. Procedure in Case of Neglect or Failure to File
105-67 Final Account; Payments Due Meantime. If a personal representative
105-68 charged with the duty of filing a final account fails or neglects
105-69 so to do at the proper time, the court shall, upon its own motion,
105-70 or upon the written complaint of any one interested in the
106-1 decedent's <or ward's> estate which has been administered, cause
106-2 such representative to be cited to appear and present such account
106-3 within the time specified in the citation. <So far as applicable,
106-4 this Section shall also govern with respect to guardians of the
106-5 person. Meantime, rentals or other payments becoming due to the
106-6 ward, his estate, or his guardian, between the date the ward's
106-7 disability terminates or the date of the ward's death and the
106-8 effective date of the guardian's discharge may be paid or tendered
106-9 to the emancipated ward, his guardian, or the personal
106-10 representative of the ward's estate, at obligor's option, and such
106-11 payment or tender shall constitute and be an absolute discharge of
106-12 such matured obligation for all purposes to the extent of the
106-13 amount thus paid or tendered.>
106-14 SECTION 71. Section 407, Texas Probate Code, is amended to
106-15 read as follows:
106-16 Sec. 407. Citation Upon Presentation of Account for Final
106-17 Settlement. Upon the filing of an account for final settlement by
106-18 temporary or permanent personal representatives of the estates of
106-19 decedents <or wards, or of the persons of wards>, citation shall
106-20 contain a statement that such final account has been filed, the
106-21 time and place when it will be considered by the court, and a
106-22 statement requiring the person or persons cited to appear and
106-23 contest the same if they see proper. Such citation shall be issued
106-24 by the county clerk to the persons and in the manner set out below.
106-25 1. In case of the estates of deceased persons, notice
106-26 shall be given by the personal representative to each heir or
106-27 beneficiary of the decedent by certified mail, return receipt
106-28 requested, unless another type of notice is directed by the court
106-29 by written order. The notice must include a copy of the account
106-30 for final settlement.
106-31 2. <If a ward be a living resident of this state who
106-32 is 14 years of age or older, and his or her residence be known, the
106-33 ward shall be cited by personal service, unless the ward, in person
106-34 or by attorney, by writing filed with the clerk, waives the
106-35 issuance and personal service of citation.>
106-36 <3. If one who has been a ward be deceased, the ward's
106-37 executor or administrator, if one has been appointed, shall be
106-38 personally served, but no service is required if the executor or
106-39 administrator is the same person as the guardian.>
106-40 <4. If a ward's residence is unknown, or if the ward
106-41 is a non-resident of this state, or if the ward is deceased and no
106-42 representative of the ward's estate has been appointed and
106-43 qualified in this state, the citation to the ward or to the ward's
106-44 estate shall be by publication, unless the court by written order
106-45 directs citation by posting.>
106-46 <5.> If the court deems further additional notice
106-47 necessary, it shall require the same by written order. In its
106-48 discretion, the court may allow the waiver of notice of an account
106-49 for final settlement in a proceeding concerning a decedent's estate
106-50 <or a guardianship>.
106-51 SECTION 72. Section 408(b), Texas Probate Code, is amended
106-52 to read as follows:
106-53 (b) Distribution of Remaining Property. Upon final
106-54 settlement of an estate, if there be any of such estate remaining
106-55 in the hands of the personal representative, the court shall order
106-56 <that it be delivered, in case of a ward, to such ward, or in the
106-57 case of a deceased ward to the personal representative of the
106-58 deceased ward's estate if one be appointed, or to any other person
106-59 legally entitled thereto; in case of a decedent,> that a partition
106-60 and distribution be made among the persons entitled to receive such
106-61 estate.
106-62 SECTION 73. Section 409, Texas Probate Code, is amended to
106-63 read as follows:
106-64 Sec. 409. Money Becoming Due Pending Final Discharge. Until
106-65 the order of final discharge of the personal representative is
106-66 entered in the minutes of the court, money or other thing of value
106-67 falling due to the estate <or ward> while the account for final
106-68 settlement is pending may be paid, delivered, or tendered to the
106-69 personal representative, who shall issue receipt therefor, and the
106-70 obligor and/or payor shall be thereby discharged of the obligation
107-1 for all purposes.
107-2 SECTION 74. Section 414, Texas Probate Code, is amended to
107-3 read as follows:
107-4 Sec. 414. Procedure if Representative Fails to Deliver
107-5 Estate. If any personal representative of an estate <or ward>,
107-6 upon final settlement, shall neglect to deliver to the person
107-7 entitled thereto when demanded any portion of an estate or any
107-8 funds or money in his hands ordered to be delivered, such person
107-9 may file with the clerk of the court his written complaint alleging
107-10 the fact of such neglect, the date of his demand, and other
107-11 relevant facts, whereupon the clerk shall issue a citation to be
107-12 served personally upon such representative, apprising him of the
107-13 complaint and citing him to appear before the court and answer, if
107-14 he so desires, at the time designated in the citation. If at the
107-15 hearing the court finds that the citation was duly served and
107-16 returned and that the representative is guilty of the neglect
107-17 charged, the court shall enter an order to that effect, and the
107-18 representative shall be liable to such person in damages at the
107-19 rate of ten per cent of the amount or appraised value of the money
107-20 or estate so withheld, per month, for each and every month or
107-21 fraction thereof that said estate or money or funds is and/or has
107-22 been so withheld after date of demand, which damages may be
107-23 recovered in any court of competent jurisdiction.
107-24 SECTION 75. The following provisions of the Texas Probate
107-25 Code are repealed:
107-26 (1) Sections 7, 130, 131, 144, 157, 158, 184, 185,
107-27 191, 193, 228, 229, 231, 236, 237, 246, 247, 305, 330, 339A, 376,
107-28 383, 404A, 404B, 411, and 413;
107-29 (2) Parts 3 and 5, Chapter V;
107-30 (3) Part 2, Chapter VI;
107-31 (4) Parts 9 and 10, Chapter VIII; and
107-32 (5) Chapter IX.
107-33 SECTION 76. (a) This Act applies to:
107-34 (1) an application for the appointment of a guardian
107-35 that is filed on or after September 1, 1993; and
107-36 (2) an application for the appointment of a guardian
107-37 that is filed before September 1, 1993, in which a guardianship has
107-38 not been created.
107-39 (b) An application described by Subsection (a)(2) of this
107-40 section must be modified to conform to the changes in law made by
107-41 this Act.
107-42 (c) A guardianship existing on September 1, 1993, must be
107-43 modified to conform to the changes in law made by this Act.
107-44 SECTION 77. This Act takes effect September 1, 1993.
107-45 SECTION 78. The importance of this legislation and the
107-46 crowded condition of the calendars in both houses create an
107-47 emergency and an imperative public necessity that the
107-48 constitutional rule requiring bills to be read on three several
107-49 days in each house be suspended, and this rule is hereby suspended.
107-50 * * * * *
107-51 Austin,
107-52 Texas
107-53 May 25, 1993
107-54 Hon. Bob Bullock
107-55 President of the Senate
107-56 Sir:
107-57 We, your Committee on Jurisprudence to which was referred H.B.
107-58 No. 2685, have had the same under consideration, and I am
107-59 instructed to report it back to the Senate with the recommendation
107-60 that it do pass and be printed.
107-61 Henderson,
107-62 Chairman
107-63 * * * * *
107-64 WITNESSES
107-65 FOR AGAINST ON
107-66 ___________________________________________________________________
107-67 Name: Alvin T. Golden x
107-68 Representing: Tx Academy of Probate Lawyers
107-69 City: Austin
107-70 -------------------------------------------------------------------
108-1 Name: Guy Herman x
108-2 Representing: Probate Court
108-3 City: Austin
108-4 -------------------------------------------------------------------
108-5 FOR AGAINST ON
108-6 ___________________________________________________________________
108-7 Name: A. Lynn Tiemann x
108-8 Representing:
108-9 City: Austin
108-10 -------------------------------------------------------------------
108-11 Name: G. Gaye Thompson x
108-12 Representing: Tx Guardianship Assn
108-13 City: Austin
108-14 -------------------------------------------------------------------
108-15 Name: Robert Bass x
108-16 Representing: Coalition of Texas Sureties
108-17 City: Austin
108-18 -------------------------------------------------------------------