By: Shelley, Harris of Tarrant S.B. No. 479
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the guardianship of a person or an estate, informal
1-2 probate of wills, informal distribution of estates, emergency
1-3 payment of burial expenses, and protection of a decedent's personal
1-4 property; creating the offense of interference with service of
1-5 citation on a proposed ward and providing a penalty.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Section 127A, Texas Probate Code, is amended to
1-8 read as follows:
1-9 Sec. 127A. GUARDIANSHIP OF MISSING PERSON <MISSING ON PUBLIC
1-10 SERVICE>. (a) Not less than six months after a person is reported
1-11 by an executive department of the United States to be a prisoner of
1-12 war or missing on the public service of the United States, any
1-13 person may file a written application for the appointment of a
1-14 guardian of the person of the missing person in the court of the
1-15 county of residence of the missing person's spouse or, if there is
1-16 no spouse, in the county of residence of a parent or child of the
1-17 missing person, or if there is no parent or child, in the county of
1-18 residence of the missing person's next of kin.
1-19 (b) If a person is discovered to be missing and there is
1-20 good cause, as evidenced by a police or other law enforcement
1-21 agency report or by testimony in open court by a peace officer, to
1-22 believe that the person is a victim of violence, any person may
1-23 file a written application for appointment of a temporary guardian
1-24 of the estate of the missing person.
2-1 (c) An <The> application under this section shall state:
2-2 (1) the name, sex, and last known residence of the
2-3 person for whom the appointment of a guardian is sought;
2-4 (2) in the case of a person reported missing under
2-5 Subsection (a) of this section, the executive department issuing
2-6 the report, the date of the report, and the last known whereabouts
2-7 of the missing person;
2-8 (3) the names and addresses of the missing person's
2-9 spouse, children, and parents or, if there is no spouse, child, or
2-10 parent, the name and address of the person's next of kin and facts
2-11 that show that the court has venue of the proceeding;
2-12 (4) the reason for the appointment and the interest of
2-13 the applicant in the appointment; and
2-14 (5) the name, relationship, and address of the person
2-15 whom the applicant desires to have appointed as guardian.
2-16 (d) <(c)> The court shall appoint an attorney to represent
2-17 the interests of the missing person and shall allow the attorney a
2-18 reasonable fee, not to exceed $25, for his services to be taxed as
2-19 part of the costs.
2-20 (e) <(d)> The attorney appointed to represent the interests
2-21 <interest> of the missing person shall be personally served with
2-22 citation to appear and answer the application for the appointment
2-23 of a guardian. The clerk of the court shall issue a notice setting
2-24 forth that an application has been filed for the guardianship of
2-25 the person or of the estate of the missing person and by whom the
2-26 application is made. The notice shall cite all persons interested
2-27 in the welfare of that person to appear at the time and place
3-1 stated in the notice and contest the application, if they so
3-2 desire. The notice shall be served by posting, and the sheriff or
3-3 other officer posting the notice shall return the original, signed
3-4 officially, stating thereon in writing the time and place that he
3-5 posted the copy of the notice. In addition to posting the notice,
3-6 a copy of the notice shall be mailed by registered or certified
3-7 mail to the spouse, to each child, to each parent of the missing
3-8 person, and to any other person that the court deems appropriate.
3-9 (f) <(e)> Any person has the right to appear and contest the
3-10 appointment of a particular person as guardian of the missing
3-11 person or of the estate of the missing person, or to contest any
3-12 guardianship proceeding which he deems to be injurious to the
3-13 missing person or to the estate of the missing person, or to
3-14 commence a guardianship proceeding which he deems beneficial to the
3-15 missing person or to the estate of the missing person.
3-16 (g) <(f)> Before appointing a guardian, the court must find:
3-17 (1) in the case of a person reported missing under
3-18 Subsection (a) of this section, that the person has been reported
3-19 missing by an executive department of the United States and still
3-20 is missing;
3-21 (2) that the court has venue of the proceeding and
3-22 that there is not an existing guardianship of this person or of the
3-23 estate of the person;
3-24 (3) that the person applying for appointment as the
3-25 guardian is a proper person to act as the guardian; <and>
3-26 (4) in the case of a person missing under Subsection
3-27 (b) of this section, that the person applying for appointment as
4-1 guardian has not been and is not presently under investigation by a
4-2 police or law enforcement agency in connection with the
4-3 disappearance of the missing person; and
4-4 (5) that the rights of the missing person or the
4-5 interests of the missing person's estate will be protected by the
4-6 appointment of the guardian.
4-7 (h)(1) A temporary guardian appointed for a person missing
4-8 under Subsection (b) of this section must post a bond as required
4-9 for a temporary guardian of any other ward. The temporary guardian
4-10 has the same authority to handle the affairs of the missing person
4-11 under court supervision as a temporary guardian has for any other
4-12 ward.
4-13 (2) A temporary guardianship under this subsection
4-14 continues until the:
4-15 (A) death of the missing person is confirmed;
4-16 (B) missing person is declared legally dead
4-17 under applicable statutes;
4-18 (C) missing person returns;
4-19 (D) whereabouts of the missing person is
4-20 determined; or
4-21 (E) guardianship is no longer necessary for any
4-22 other reason.
4-23 (i) <(g)> After the hearing, the court shall dismiss the
4-24 application or enter an order appointing a guardian to protect the
4-25 rights of the missing person or the interests of the missing
4-26 person's estate and may impose in the order any conditions or
4-27 restrictions it deems necessary to protect the rights of the
5-1 missing person or the interests of the missing person's estate. In
5-2 appointing the guardian, the court shall give preference to the
5-3 spouse of the missing person, and if there is no spouse shall give
5-4 preference to parents and children of the missing person.
5-5 (j) <(h)> The jurisdiction of the court over the
5-6 guardianship is continuing. If the missing person returns or, in
5-7 the case of a temporary guardianship under Subsection (h) of this
5-8 section, if any of the events listed in Subsection (h)(2) of this
5-9 section occur, on motion of any interested person after a notice,
5-10 stating that the motion has been filed and specifying the date of a
5-11 hearing, has been issued and served on the formerly missing person
5-12 as in other cases, the court shall amend or vacate the original
5-13 order of guardianship. A copy of the motion shall accompany the
5-14 notice.
5-15 SECTION 2. Subsection (c), Section 130, Texas Probate Code,
5-16 is amended to read as follows:
5-17 (c) Service of Citation. (1) Except as hereinafter
5-18 provided, minors who have attained the age of fourteen years,
5-19 persons alleged to be of unsound mind or habitual drunkards, and
5-20 persons for whom it is alleged to be necessary to have a guardian
5-21 appointed to receive funds from any governmental source or agency
5-22 shall be personally served with citation to appear and answer the
5-23 application for the appointment of a guardian.
5-24 (2) If a court finds that any person is interfering
5-25 with the personal service of a citation under this subsection, the
5-26 court may order a sheriff or constable to use reasonable force to
5-27 prevent the person from interfering with the service of the
6-1 citation.
6-2 SECTION 3. Section 157, Texas Probate Code, is amended to
6-3 read as follows:
6-4 Sec. 157. When Spouse Incompetent. Whenever a husband or
6-5 wife is judicially declared to be incompetent, the other spouse, in
6-6 the capacity of surviving partner of the marital partnership,
6-7 thereupon acquires full power to manage, control, and dispose of
6-8 the entire community estate, including the part which the
6-9 incompetent spouse would legally have power to manage in the
6-10 absence of such incompetency, and no administration, community or
6-11 otherwise, shall be necessary if the court finds that it is in the
6-12 best interest of the incompetent spouse not to require
6-13 administration of the estate and that the competent spouse is not
6-14 disqualified under Section 110 of this code to serve as guardian.
6-15 Guardianship of the estate of the incompetent spouse shall not be
6-16 necessary when the other spouse is competent and the court finds
6-17 that it is in the best interest of the incompetent spouse not to
6-18 require a guardianship of the estate and that the competent spouse
6-19 is not disqualified under Section 110 of this code to serve as
6-20 guardian unless the incompetent spouse owns separate property, and
6-21 then as to such separate property only. The qualification of a
6-22 guardian of the separate estate of an incompetent spouse does not
6-23 deprive the competent spouse of the right to manage, control, and
6-24 dispose of the entire community estate as provided in this code
6-25 <Code>.
6-26 SECTION 4. Section 245, Texas Probate Code, is amended to
6-27 read as follows:
7-1 Sec. 245. WHEN COSTS ARE ADJUDGED AGAINST REPRESENTATIVE.
7-2 (a) When the personal representative of an estate or person
7-3 neglects the performance of any duty required of him, and any costs
7-4 are incurred thereby, or if he is removed for cause, he and the
7-5 sureties on his bond shall be liable for costs of removal and other
7-6 additional costs incurred that are not authorized expenditures, as
7-7 defined by this code, and for reasonable attorney's fees incurred
7-8 in removing him and in obtaining his compliance regarding any
7-9 statutory duty he has neglected.
7-10 (b) If the personal representative is a guardian of an
7-11 estate and a court finds that the attorney advising the guardian
7-12 has been grossly negligent in the performance of the attorney's
7-13 duties to the guardian, the court may equitably apportion the costs
7-14 described by Subsection (a) of this section between:
7-15 (1) the attorney advising the guardian; and
7-16 (2) the guardian and the sureties on the guardian's
7-17 bond.
7-18 SECTION 5. Subsection (a), Section 399, Texas Probate Code,
7-19 is amended to read as follows:
7-20 (a) Estates of Decedents and Wards Being Administered Under
7-21 Order of Court. The personal representative of the estate of a
7-22 decedent or ward being administered under order of court shall,
7-23 upon the expiration of twelve (12) months from the date of
7-24 qualification and receipt of letters, return to the court an
7-25 exhibit in writing under oath setting forth a list of all claims
7-26 against the estate that were presented to him within the period
7-27 covered by the account, specifying which have been allowed by him,
8-1 which have been paid, which have been rejected and the date when
8-2 rejected, which have been sued upon, and the condition of the suit,
8-3 and show:
8-4 (1) All property that has come to his knowledge or
8-5 into his possession not previously listed or inventoried as
8-6 property of the estate or ward, as the case may be.
8-7 (2) Any changes in the property of the estate or ward
8-8 which have not been previously reported.
8-9 (3) A complete account of receipts and disbursements
8-10 for the period covered by the account, and the source and nature
8-11 thereof, with receipts of principal and income to be shown
8-12 separately.
8-13 (4) A complete, accurate and detailed description of
8-14 the property being administered, the condition of the property and
8-15 the use being made thereof, and, if rented, the terms upon and the
8-16 price for which rented.
8-17 (5) The cash balance on hand and the name and location
8-18 of the depository wherein such balance is kept; also, any other
8-19 sums of cash in savings accounts or other form, deposited subject
8-20 to court order, and the name and location of the depository
8-21 thereof.
8-22 (6) A detailed description of personal property of the
8-23 estate, which shall, with respect to bonds, notes, and other
8-24 securities, include the names of obligor and obligee, or if payable
8-25 to bearer, so state; the date of issue and maturity; the rate of
8-26 interest; serial or other identifying numbers; in what manner the
8-27 property is secured; and other data necessary to identify the same
9-1 fully, and how and where held for safekeeping.
9-2 (7) A statement that, during the period covered by the
9-3 account, all tax returns due have been filed and that all taxes due
9-4 and owing have been paid and a complete account of the amount of
9-5 the taxes, the date the taxes were paid, and the governmental
9-6 entity to which the taxes were paid.
9-7 (8) If any tax return due to be filed or any taxes due
9-8 to be paid are delinquent on the filing of the account, a detailed
9-9 description of the delinquency and the reasons for the delinquency.
9-10 SECTION 6. Subsection (a), Section 404, Texas Probate Code,
9-11 is amended to read as follows:
9-12 (a) Administration of the estates of decedents and
9-13 guardianship of the persons and estates of wards shall be settled
9-14 and closed:
9-15 (1) when all the debts known to exist against the
9-16 estate of a deceased person have been paid, or when they have been
9-17 paid so far as the assets in the hands of an administrator or
9-18 executor of such estate will permit, and when there is no further
9-19 need for administration;
9-20 (2) when a minor ward dies, or becomes an adult by
9-21 becoming eighteen years of age, or by removal of disabilities of
9-22 minority according to the law of this state, or by marriage, or
9-23 when the necessity for guardianship no longer exists for other
9-24 reasons;
9-25 (3) when an incompetent ward dies, or is decreed as
9-26 provided by law to have been restored to sound mind or sober
9-27 habits, or, being married, when his or her spouse has qualified as
10-1 survivor in community;
10-2 (4) when a ward entitled to funds from a governmental
10-3 source dies, or when the court finds that the necessity for the
10-4 guardianship of that person has ended;
10-5 (5) when the estate of a ward becomes exhausted; or
10-6 (6) when the foreseeable income accruing to a ward or
10-7 to his estate is so negligible that maintaining the guardianship in
10-8 force would be burdensome.
10-9 SECTION 7. Section 405, Texas Probate Code, is amended to
10-10 read as follows:
10-11 Sec. 405. Account for Final Settlement of Estates of
10-12 Decedents and Persons and Estates of Wards. When administration of
10-13 the estate of a decedent, or guardianship of person or estate, or
10-14 of the person and estate of a ward, is to be settled and closed,
10-15 the personal representative of such estate or of such ward shall
10-16 present to the court his verified account for final settlement. In
10-17 such account it shall be sufficient to refer to the inventory
10-18 without describing each item of property in detail, and to refer to
10-19 and adopt any and all proceedings had in the administration or
10-20 guardianship, as the case may be, concerning sales, renting or
10-21 hiring, leasing for mineral development, or any other transactions
10-22 on behalf of the estate or of the ward, as the case may be,
10-23 including exhibits, accounts, and vouchers previously filed and
10-24 approved, without restating the particular items thereof. Each
10-25 final account, however, shall be accompanied by proper vouchers in
10-26 support of each item thereof not already accounted for and shall
10-27 show, either by reference to any proceedings authorized above or by
11-1 statement of the facts:
11-2 (a) As to Estates of Decedents.
11-3 1. The property belonging to the estate which
11-4 has come into the hands of the executor or administrator.
11-5 2. The disposition that has been made of such
11-6 property.
11-7 3. The debts that have been paid.
11-8 4. The debts and expenses, if any, still owing
11-9 by the estate.
11-10 5. The property of the estate, if any, still
11-11 remaining on hand.
11-12 6. The persons entitled to receive such estate,
11-13 their relationship to the decedent, and their residence, if known,
11-14 and whether adults or minors, and, if minors, the names of their
11-15 guardians, if any.
11-16 7. All advancements or payments that have been
11-17 made, if any, by the executor or administrator from such estate to
11-18 any such person.
11-19 8. The tax returns due that have been filed and
11-20 the taxes due and owing that have been paid and a complete account
11-21 of the amount of taxes, the date the taxes were paid, and the
11-22 governmental entity to which the taxes were paid.
11-23 9. If any tax return due to be filed or any
11-24 taxes due to be paid are delinquent on the filing of the account, a
11-25 detailed description of the delinquency and the reasons for the
11-26 delinquency.
11-27 (b) As to Estates of Wards.
12-1 1. The property, rents, revenues, and profits
12-2 received by the guardian, and belonging to his ward, during his
12-3 guardianship.
12-4 2. The disposition made of such property, rents,
12-5 revenues, and profits.
12-6 3. The expenses and debts, if any, against the
12-7 estate remaining unpaid.
12-8 4. The tax returns due that have been filed and
12-9 the taxes due and owing that have been paid and a complete account
12-10 of the amount of taxes, the date the taxes were paid, and the
12-11 governmental entity to which the taxes were paid.
12-12 5. If any tax return due to be filed or any
12-13 taxes due to be paid are delinquent on the filing of the account of
12-14 taxes paid, a detailed description of the delinquency and the
12-15 reasons for the delinquency.
12-16 6. The property of the estate remaining in the
12-17 hands of such guardian, if any.
12-18 7. <5.> Such other facts as appear necessary to
12-19 a full and definite understanding of the exact condition of the
12-20 guardianship.
12-21 SECTION 8. Chapter 38, Penal Code, is amended by adding
12-22 Section 38.19 to read as follows:
12-23 Sec. 38.19. INTERFERENCE WITH SERVICE OF CITATION ON
12-24 PROPOSED WARD. (a) In this section, "conspires to commit" has the
12-25 meaning assigned by Section 71.01(b) of this code.
12-26 (b) A person commits an offense if the person:
12-27 (1) intentionally interferes with the service of
13-1 personal citation on a proposed ward in a guardianship proceeding;
13-2 or
13-3 (2) conspires to commit an offense under this section.
13-4 (c) An offense under this section is a Class A misdemeanor.
13-5 SECTION 9. The Texas Probate Code is amended by adding
13-6 Chapter XII to read as follows:
13-7 CHAPTER XII. INFORMAL PROBATE
13-8 PART 1. INFORMAL PROBATE WITH AND WITHOUT ISSUANCE OF LETTERS
13-9 Sec. 501. TIME TO FILE APPLICATION FOR INFORMAL PROBATE.
13-10 (a) An applicant may file an application for the informal probate
13-11 of a will with the court clerk not earlier than the 30th day after
13-12 the date of the testator's death.
13-13 (b) A will may not be admitted for informal probate after
13-14 the fourth anniversary of the date of the testator's death unless
13-15 the applicant shows that the applicant was not aware of the will's
13-16 existence and did not cause the failure to timely file the will for
13-17 probate.
13-18 Sec. 502. ELIGIBLE APPLICANTS FOR INFORMAL PROBATE; VENUE.
13-19 (a) An executor, alternate, devisee, or legatee named in a will
13-20 may make an application for the informal probate of the will.
13-21 (b) The applicant may file the application in the county in
13-22 which the testator was domiciled on the date of death or in the
13-23 county in which the estate assets are located.
13-24 Sec. 503. REQUIREMENTS FOR INFORMAL PROBATE. (a) An
13-25 applicant may file a will for informal probate with the court
13-26 clerk:
13-27 (1) if:
14-1 (A) all of the estate's known debts have been
14-2 satisfied;
14-3 (B) all existing and outstanding debts are
14-4 secured on real or personal property through certificates of title
14-5 or by Uniform Commercial Code filings; or
14-6 (C) the applicant notifies all creditors of the
14-7 estate by certified or registered mail of the filing; and
14-8 (2) if:
14-9 (A) an application has not been filed and is not
14-10 pending under Section 81, 82, 89, or 145 of this code; and
14-11 (B) the applicant files an affidavit of a
14-12 disinterested witness that contains the proof of facts required to
14-13 probate a will under Sections 88(a) and (b) of this code.
14-14 (b) The applicant submits personally to the jurisdiction of
14-15 the probate court in any proceeding for relief relating to the
14-16 informal probate proceeding and distribution of assets and to the
14-17 suit in the probate court for any actions taken while administering
14-18 estate assets, including a civil action for perjury or fraud
14-19 relating to the application.
14-20 Sec. 504. CONTENTS OF APPLICATION. (a) An application for
14-21 informal probate of a will must be under oath and must establish:
14-22 (1) that 30 days have elapsed after the date of the
14-23 testator's death;
14-24 (2) that all debts of the estate have been satisfied
14-25 or are properly secured or all creditors have received notice of
14-26 the application's filing;
14-27 (3) that the total gross fair market value of the
15-1 estate, including real and personal property but not including
15-2 homestead or exempt property, did not exceed $50,000 on the date
15-3 the application was prepared;
15-4 (4) that the court has venue;
15-5 (5) to the applicant's knowledge and belief, that the
15-6 will being offered for informal probate has never been revoked; and
15-7 (6) to the applicant's knowledge and belief, that no
15-8 person named in the will has objected to the offer of the will for
15-9 informal probate.
15-10 (b) If the will is not available, the application must
15-11 contain affidavits of the applicant and a disinterested person
15-12 stating:
15-13 (1) the source of knowledge of the terms of the will;
15-14 (2) the reasons an original will is not available;
15-15 (3) the terms of the will;
15-16 (4) the date the will was executed; and
15-17 (5) the names of the witnesses to the execution of the
15-18 will.
15-19 (c) The application must contain the social security number
15-20 and present address of the applicant and the social security number
15-21 and last known address of the testator.
15-22 Sec. 505. NOTICE. (a) Before filing an application for
15-23 informal probate, the applicant shall give notice of the intent to
15-24 file the application by certified or registered mail to all persons
15-25 named in the will whose addresses are known or are reasonably
15-26 ascertainable and to the decedent's surviving spouse and children
15-27 and shall provide those persons a copy of the will.
16-1 (b) If a distributee named in the will is a minor or
16-2 incompetent, the applicant shall notify the natural guardian of the
16-3 minor or the guardian of the person of the incompetent distributee.
16-4 (c) The applicant shall file the return receipts or original
16-5 returned notices with the application.
16-6 (d) Notice is not required under this section to a person
16-7 who joins in the application for informal probate or to a person
16-8 who waives notice if the person's sworn waiver of notice is filed
16-9 with the application or is filed before the court considers the
16-10 application.
16-11 Sec. 506. FILING OF WILL OR AFFIDAVIT; INVENTORY. (a) The
16-12 applicant must file the will or an affidavit explaining the will's
16-13 absence with the application. The will remains in the custody of
16-14 the court clerk unless removed by order of a proper court.
16-15 (b) The applicant shall prepare a sworn, full, and complete
16-16 inventory of all assets required to be included in the testator's
16-17 estate. The applicant shall list all assets at the assets' fair
16-18 market value at or about the time the application was prepared
16-19 without reduction for any outstanding secured debts. If the
16-20 valuation of an asset is questioned, the court may, on its own
16-21 motion or on request of an interested person, appoint an appraiser
16-22 for the asset and order that the applicant deposit the cost of the
16-23 appraisal in advance with the court clerk. The applicant shall
16-24 file the inventory with the application. The inventory must:
16-25 (1) contain the information required by Sections 250
16-26 and 251 of this code; and
16-27 (2) if the testator is survived by a spouse, identify
17-1 the community assets and list the assets' one-half community value.
17-2 (c) The court clerk may not present the application to the
17-3 judge of the court before the 11th day after the date the
17-4 application is filed. The court shall determine, in its
17-5 discretion, whether the application meets the requirements for an
17-6 application for informal probate and may admit the will for
17-7 informal probate.
17-8 (d) If the court determines that the will is not admissible
17-9 for informal probate, the denial is not a final adjudication of the
17-10 validity of the will and does not preclude a subsequent application
17-11 for probate of the will in a formal probate proceeding.
17-12 Sec. 507. LIMITED LETTERS TESTAMENTARY. (a) An executor,
17-13 alternate, devisee, or legatee named in a will may request in an
17-14 application for the informal probate of the will that the clerk of
17-15 the probate court issue limited letters testamentary to the
17-16 applicant for the purpose of transferring title to the assets or
17-17 interests in the assets of the testator's estate, including any
17-18 increases to the assets that accrued after the date of the
17-19 testator's death and that are specifically identified and described
17-20 in the inventory included in the application or any subsequently
17-21 filed amended or supplemental inventory.
17-22 (b) The letters or a certified copy of the inventory
17-23 attached to the letters must identify the assets subject to
17-24 transfer under the letters.
17-25 (c) A transfer or an attempt to transfer title to assets of
17-26 the estate not identified in the letters, including any increases
17-27 to the assets that may have accrued after the date of the
18-1 testator's death, is void.
18-2 (d) Limited letters are valid for one year after the date of
18-3 the application's approval.
18-4 (e) The judge of the court that issued the original letters
18-5 may order the issuance of additional letters. The order for
18-6 additional letters must contain the date that those letters expire.
18-7 Additional letters are not renewable.
18-8 Sec. 508. REVIEW OF APPLICATION FOR INFORMAL PROBATE.
18-9 (a) The court in which an application for informal probate has
18-10 been filed shall determine whether:
18-11 (1) the application is complete;
18-12 (2) the applicant has acknowledged that all statements
18-13 of fact contained in the application are true and correct;
18-14 (3) the applicant is an executor, alternate, devisee,
18-15 or legatee named in the will;
18-16 (4) venue is correct;
18-17 (5) an original, duly executed will or the affidavits
18-18 required by Section 504 of this code are filed with the
18-19 application;
18-20 (6) copies of required notices or waivers by persons
18-21 named in the will and the surviving spouse, children, and creditors
18-22 are attached to the application;
18-23 (7) an objection has not been made to the request for
18-24 informal probate by any creditor or person named in the will;
18-25 (8) the time for applying for an informal probate has
18-26 not expired;
18-27 (9) the application contains the required information;
19-1 and
19-2 (10) an appraiser is necessary to determine the value
19-3 of any asset.
19-4 (b) The court shall deny the application if:
19-5 (1) a personal representative has been appointed in
19-6 another county;
19-7 (2) except as provided by Subsection (d) of this
19-8 section, this or another will of the decedent has been the subject
19-9 of a previous probate order in this state; or
19-10 (3) the court, in its discretion, determines formal
19-11 probate is necessary.
19-12 (c) The court may probate a will that is a self-proved will
19-13 under Section 59 of this code without further proof. If the will
19-14 is not self-proving under Section 59 of this code, the court may,
19-15 in the absence of an objection, presume compliance with Section 59
19-16 of this code if the will is filed with a sworn statement or
19-17 affidavit of a person having personal knowledge of the
19-18 circumstances of the execution of the will, whether or not the
19-19 person was a witness to the will.
19-20 (d) A court may informally probate at any time a will that
19-21 has been probated by the court of another state on the written
19-22 application of a representative, devisee, or legatee named in the
19-23 will. The applicant shall file an authenticated copy of the will
19-24 and foreign proceedings in place of the original will.
19-25 Sec. 509. EFFECT OF INFORMAL PROBATE. (a) A person who
19-26 makes a payment or transfers property under the terms of a will
19-27 admitted to informal probate or under limited letters is released
20-1 from liability or responsibility to the same extent as if the
20-2 payment or transfer had been made to the personal representative of
20-3 an estate. The person is not required to see the application for
20-4 informal probate or to inquire into the truth of any statement
20-5 contained in the application for informal probate. The person to
20-6 whom the ultimate payment or transfer of an asset is made under the
20-7 terms of the will is responsible for the asset and is liable to a
20-8 personal representative, a creditor of the testator, or any person
20-9 having a superior right or claim of possession or ownership to the
20-10 asset.
20-11 (b) A representative or beneficiary under an informally
20-12 probated will who acquires property under the will may be liable to
20-13 the extent of the value of the property actually acquired to a
20-14 person or creditor of the estate with a superior right or claim to
20-15 the property for damages caused by the transfer of the property to
20-16 the representative or beneficiary under the terms of the will.
20-17 (c) If a person who is entitled to property of the estate,
20-18 including the representative, a creditor, a beneficiary, or a
20-19 guardian, makes a written demand by certified or registered mail
20-20 containing a certified copy of the probated will and order
20-21 admitting the will or limited letters to a person in possession of
20-22 estate property and the person refuses or fails to deliver or
20-23 transfer the property before the 31st day after the date of the
20-24 demand, the person who is entitled to the property may file a show
20-25 cause action in the court that probated the will to recover the
20-26 property. The person entitled to the property may recover the fair
20-27 market value of the property, reasonable damages for the loss of
21-1 use of the property, reasonable attorney fees, and costs of court.
21-2 (d) If a beneficiary under a will is a minor or an
21-3 incompetent without a guardian of the minor's or incompetent's
21-4 estate, all cash, stocks, bonds, or personal property that can be
21-5 converted to cash to which the beneficiary is entitled may not be
21-6 distributed to the natural guardian or guardian of the person. The
21-7 representative of the estate shall convert the assets to cash and
21-8 deposit the cash in the court registry until a legal guardian of an
21-9 estate is appointed or shall deposit the cash as provided by
21-10 Section 144 of this code for the benefit of the ward.
21-11 Sec. 510. TIME TO CONTEST VALIDITY OF WILL. (a) Except as
21-12 provided by Subsection (b) or (c) of this section, an interested
21-13 person may file suit to contest the validity of a will admitted to
21-14 informal probate not later than two years after the date the will
21-15 was admitted.
21-16 (b) An interested person may institute suit to contest the
21-17 validity of a will admitted to informal probate for forgery or
21-18 other fraud not later than two years after the date the forgery or
21-19 fraud is discovered.
21-20 (c) A minor or incompetent person may file suit to contest
21-21 the validity of a will admitted to informal probate not later than
21-22 two years after the date the disabilities of the minor or
21-23 incompetent are removed.
21-24 PART 2. INFORMAL PROBATE WITHOUT WILL
21-25 Sec. 520. TIME TO FILE INFORMAL DISTRIBUTION APPLICATION.
21-26 (a) Except as provided by Subsection (b) of this section, if a
21-27 decedent dies without a will, the distributees of a decedent may
22-1 file an application requesting informal distribution of the
22-2 decedent's estate with the court clerk not earlier than the 30th
22-3 day after the date of the decedent's death.
22-4 (b) The distributees may request informal distribution at
22-5 any time if the distributees can show:
22-6 (1) a necessity to receive or recover funds or other
22-7 property in this state that were due or owned by the decedent at
22-8 the time of death; and
22-9 (2) the distributees' actions were not the cause for
22-10 any unreasonable delay in filing the request.
22-11 Sec. 521. ELIGIBLE APPLICANTS. (a) Except as provided by
22-12 Subsection (b) of this section, all persons entitled to receive the
22-13 decedent's property under Section 38 of this code shall join in the
22-14 application for informal distribution of the estate.
22-15 (b) If the decedent is survived by a spouse or adult
22-16 children and only community assets exist, the surviving spouse is
22-17 not required to join in the application. If the spouse has not
22-18 joined in the application, the distributees shall notify the spouse
22-19 by certified or registered mail of the distributees' intention to
22-20 file the application. The distributees shall attach proof of the
22-21 notice to the application before filing.
22-22 (c) If a distributee of the decedent's estate is a minor or
22-23 incompetent, the natural guardian of the minor or the legal
22-24 guardian of the person or of an incompetent distributee must join
22-25 in the application.
22-26 Sec. 522. REQUIREMENTS FOR INFORMAL DISTRIBUTION. (a) The
22-27 distributees may file an application for informal distribution only
23-1 if:
23-2 (1) all of the estate's known debts have been
23-3 satisfied;
23-4 (2) all existing and outstanding debts against the
23-5 estate are secured on real or personal property through
23-6 certificates of title or by Uniform Commercial Code filings; or
23-7 (3) all known or ascertainable creditors have been
23-8 provided notice by certified or registered mail of the
23-9 distributees' intention to file the application and have not filed
23-10 an objection not later than the fifth day after the date of receipt
23-11 of notice.
23-12 (b) The distributees shall file all return receipts of
23-13 notices with the application.
23-14 (c) The court clerk may accept the application for filing
23-15 if:
23-16 (1) an application has not been filed under Section 82
23-17 or 162 of this code; and
23-18 (2) a proceeding to determine heirship has not been
23-19 instituted under Section 48 of this code in this state.
23-20 (d) The distributees submit personally to the jurisdiction
23-21 of the probate court in any proceeding for relief relating to the
23-22 distribution of assets and to suit in the probate court for any
23-23 actions taken in the collection of assets, including civil actions
23-24 for perjury or fraud relating to the application.
23-25 Sec. 523. CONTENTS OF APPLICATION. (a) An application for
23-26 informal distribution must be under oath and must establish that:
23-27 (1) 30 days have elapsed after the date of death of
24-1 the decedent;
24-2 (2) the gross fair market value of the decedent's
24-3 estate, including real and personal property but not including
24-4 homestead or exempt property, did not exceed $50,000 on the date
24-5 the application was prepared;
24-6 (3) venue is proper in the court because the decedent
24-7 was domiciled in or the estate's principal assets are located in
24-8 the county in which the application is filed;
24-9 (4) another proceeding for disposition of the
24-10 decedent's assets has not been instituted in any other county of
24-11 this state or in a foreign jurisdiction; and
24-12 (5) all known or reasonably ascertained creditors of
24-13 the decedent have been notified of this proceeding.
24-14 (b) The application must contain:
24-15 (1) the social security number and current address of
24-16 each distributee and the social security number and last known
24-17 address of the decedent; and
24-18 (2) the sworn statements of two disinterested
24-19 witnesses who were well acquainted with the decedent stating the
24-20 decedent's family history and identifying the decedent's heirs.
24-21 Sec. 524. NOTICE TO CREDITORS; ESTATE DEBTS. (a) Except as
24-22 provided by Subsection (b) of this section, the distributees shall
24-23 provide by certified or registered mail a copy of the proposed
24-24 application for informal distribution to all unsecured creditors of
24-25 the estate whose addresses are known or are reasonably
24-26 ascertainable by due diligence. The distributees shall attach
24-27 return receipts or original returned notices to the application
25-1 before filing.
25-2 (b) Notice to an unsecured creditor is not required if a
25-3 distributee pays the debt owed to the creditor before filing the
25-4 application or if a distributee assumes personal liability for the
25-5 debt.
25-6 (c) The distributee shall file evidence of payment or
25-7 assumption of the debt with the application.
25-8 (d) If a distributee has paid or assumed a debt of the
25-9 estate, the distributee may obtain reimbursement from any
25-10 unencumbered estate assets up to the amount of the paid or assumed
25-11 debts.
25-12 Sec. 525. INVENTORY; APPRAISAL. (a) The application must
25-13 contain an inventory and list of claims as described by Sections
25-14 250 and 251 of this code.
25-15 (b) Assets must be listed at the assets' fair market value
25-16 at or about the time the application was prepared without reduction
25-17 for any outstanding secured debts.
25-18 (c) If the valuation of an asset is questioned by an
25-19 interested person or the court, the court may, on its own motion or
25-20 on request of an interested person, appoint an appraiser for the
25-21 asset and order the distributees to deposit equal shares of the
25-22 cost of the appraisal in advance with the court clerk.
25-23 Sec. 526. PROCEDURES FOR INFORMAL DISTRIBUTION. (a) The
25-24 distributees shall prepare a sworn, full, and complete inventory of
25-25 all assets of the decedent's estate that are required to be
25-26 included in the decedent's estate or that came to the distributees'
25-27 possession or knowledge. The distributees shall file the inventory
26-1 with the application. The inventory must:
26-2 (1) contain the information required by Sections 250
26-3 and 251 of this code; and
26-4 (2) if the decedent is survived by a spouse, identify
26-5 the community assets and list the assets' one-half community value.
26-6 (b) The court clerk may not present the application to the
26-7 judge of the court before the 11th day after the date the
26-8 application is filed. The court, in its discretion, shall
26-9 determine whether the application meets the requirements of this
26-10 section and Sections 520 through 525 of this code and may accept
26-11 the application for informal distribution.
26-12 (c) If the court does not accept the application for
26-13 informal distribution, the denial does not preclude a subsequent
26-14 application for an intestate probate proceeding.
26-15 Sec. 527. REVIEW OF APPLICATION FOR INFORMAL DISTRIBUTION.
26-16 (a) The court in which the application for informal distribution
26-17 has been filed shall determine whether:
26-18 (1) all heirs of the decedent have joined in the
26-19 application;
26-20 (2) all creditors of the decedent have been notified
26-21 of the filing of the application or debts have been paid or
26-22 assumed;
26-23 (3) the application is properly sworn to by all
26-24 parties and witnesses;
26-25 (4) an objection to the application has been filed;
26-26 (5) venue is proper;
26-27 (6) adequate information has been provided to
27-1 establish the heirship of the decedent's heirs;
27-2 (7) the assets of the decedent do not exceed $50,000,
27-3 not including homestead and exempt property; and
27-4 (8) an appraiser is necessary to determine the value
27-5 of any asset.
27-6 (b) The court shall deny the application if:
27-7 (1) a personal representative has been appointed in
27-8 another county;
27-9 (2) a will has been admitted to probate in this or in
27-10 a foreign jurisdiction;
27-11 (3) a will exists and has not been offered for
27-12 probate; or
27-13 (4) an heirship proceeding has been instituted under
27-14 Section 48 of this code.
27-15 (c) If the heirship testimony furnished is in dispute or
27-16 ambiguous, the court, in its discretion, may deny the application
27-17 and require the appointment of an administrator or institution of
27-18 formal heirship proceedings.
27-19 (d) If an objection is filed by an heir or creditor, the
27-20 court shall deny the application.
27-21 (e) If the debts of the decedent exceed the value of the
27-22 assets, the court shall deny the application.
27-23 (f) A transfer of or an attempt to transfer title to any
27-24 property or interest in assets of the estate or any increases to
27-25 estate assets not identified in the inventory filed with the
27-26 application or any subsequently filed amended or supplemental
27-27 inventory is void.
28-1 Sec. 528. EFFECT OF INFORMAL DISTRIBUTION. (a) A person
28-2 who makes a payment or transfers property under a court order
28-3 approving the informal distribution of an estate is released from
28-4 liability or responsibility to the same extent as if the payment or
28-5 transfer had been made to the personal representative of an estate.
28-6 A person who makes a payment or transfers property is not required
28-7 to inquire into the truth of any statement contained in the
28-8 application.
28-9 (b) A distributee receiving possession of an asset of the
28-10 decedent is liable to the extent of the value of the asset received
28-11 to a person or creditor having a superior right or claim of
28-12 possession or ownership to the asset for damages caused by the
28-13 payment or transfer of the asset under this section.
28-14 (c) If a person who is entitled to the property of the
28-15 decedent, including a creditor, distributee, or guardian, makes a
28-16 written demand by certified or registered mail containing a
28-17 certified copy of the application and a court order of distribution
28-18 to a person in possession of the property and the person fails or
28-19 refuses to deliver or transfer the property before the 31st day
28-20 after the date of the demand, the person entitled to the property
28-21 may file a show cause action in the court that ordered the
28-22 distribution to recover the property. The person entitled to the
28-23 property may recover the fair market value of the property,
28-24 reasonable damages for the loss of use of the property, reasonable
28-25 attorney fees, and costs of court.
28-26 (d) If a distributee is a minor or is an incompetent without
28-27 a guardian of the minor's or incompetent's estate, all money,
29-1 stocks, bonds, or transferable evidence of property to which the
29-2 distributee is entitled may not be distributed to the natural
29-3 guardian or guardian of the person. The person in possession of
29-4 the property shall deposit the property in the court registry or,
29-5 if necessary, convert the property to money and deposit the money
29-6 as provided by Section 144 of this code for the benefit of the
29-7 ward. The property shall remain deposited until a legal guardian
29-8 of the estate is appointed. Real property interests of a minor or
29-9 incompetent may not be sold or converted under this subsection.
29-10 PART 3. EMERGENCY INTERVENTION PROCEEDINGS; FUNERAL
29-11 AND BURIAL EXPENSES
29-12 Sec. 530. TIME TO FILE EMERGENCY APPLICATION. An applicant
29-13 may file an application requesting emergency intervention by a
29-14 court exercising probate jurisdiction to provide for the payment
29-15 of funeral and burial expenses or the protection and storage of
29-16 personal property owned by the decedent that was located in rented
29-17 accommodations on the date of the decedent's death with the clerk
29-18 of the court in the county of domicile of the decedent not earlier
29-19 than the third day after the date of the decedent's death and not
29-20 later than the 90th day after the date of the decedent's death.
29-21 Sec. 531. ELIGIBLE APPLICANTS FOR EMERGENCY INTERVENTION. A
29-22 person qualified to serve as an administrator under Section 77 of
29-23 this code may file an emergency intervention application.
29-24 Sec. 532. REQUIREMENTS FOR EMERGENCY INTERVENTION
29-25 APPLICATION. (a) An application for emergency intervention must
29-26 be sworn and must contain:
29-27 (1) the name, address, social security number, and
30-1 interest of the applicant;
30-2 (2) the facts showing an immediate necessity for the
30-3 issuance of an emergency intervention order by the court;
30-4 (3) the date of the decedent's death, place of death,
30-5 decedent's residential address, and the name and address of the
30-6 funeral home holding the decedent's remains;
30-7 (4) any known or ascertainable heirs of the decedent
30-8 and the reason:
30-9 (A) the heirs cannot be contacted; or
30-10 (B) the heirs have refused to assist in the
30-11 decedent's burial or protection of the decedent's personal
30-12 property;
30-13 (5) a description of funeral and burial procedures
30-14 necessary and a detailed and itemized description of the cost of
30-15 the funeral and burial procedures;
30-16 (6) the name, location, and identification of property
30-17 or persons in possession of the decedent's property; and
30-18 (7) the name and address of the owner or manager of
30-19 the decedent's rented premises and whether access to the premises
30-20 is necessary.
30-21 (b) If emergency intervention is necessary for funeral and
30-22 burial, the application shall state whether any written
30-23 instructions from the decedent relating to a funeral or burial
30-24 exist. The applicant shall attach the instructions to the
30-25 application or file the instructions before the funeral or burial
30-26 and fully comply with the instructions. If written instructions do
30-27 not exist, the applicant shall provide for the funeral and burial
31-1 of the decedent unless the applicant obtains the court's permission
31-2 to cremate the decedent's remains.
31-3 Sec. 533. ORDERS OF EMERGENCY INTERVENTION. (a) If the
31-4 court determines on review of the application that emergency
31-5 intervention is necessary, the court may order:
31-6 (1) funds of the decedent held by an employer,
31-7 individual, or financial institution to be paid directly to a
31-8 funeral home only for funeral and burial expenses not to exceed
31-9 $5,000 as ordered by the court to provide the decedent with a
31-10 reasonable, dignified, and appropriate funeral and burial;
31-11 (2) the applicant and the owner or agent of the
31-12 decedent's rented accommodations to jointly prepare an inventory of
31-13 the contents of the decedent's property and to file the inventory
31-14 after the inventory is signed by both parties with the court; or
31-15 (3) the owner of the decedent's rented accommodations
31-16 to deliver:
31-17 (A) any will of the decedent discovered on the
31-18 premises to the court clerk;
31-19 (B) any life insurance policy of the decedent
31-20 that names the applicant as sole beneficiary to the applicant;
31-21 (C) other life insurance policies of the
31-22 decedent to the court clerk; and
31-23 (D) any deed to a burial plot of the decedent to
31-24 the funeral home holding the decedent's remains.
31-25 (b) If the decedent's rental payments are delinquent, the
31-26 owner of rented accommodations may hold the decedent's personal
31-27 property as security for the payment of the delinquency until the
32-1 90th day after the date of death of the decedent or until the date
32-2 a court-appointed personal representative is qualified, whichever
32-3 occurs first.
32-4 (c) If rental payments are not delinquent, the court may
32-5 order the owner or agent of the owner to arrange for the storage of
32-6 the decedent's property in a proper facility for the protection of
32-7 the property. The applicant for emergency intervention shall pay
32-8 the costs of storage until the 90th day after the date the court's
32-9 emergency intervention order was issued. The court may order the
32-10 reimbursement of storage expenses to the applicant from the
32-11 decedent's estate. A court may not order the release of any
32-12 property to any person, other than a personal representative or to
32-13 judicially determined heirs, beneficiaries, or distributees of the
32-14 decedent.
32-15 (d) The court clerk may issue certified copies of an
32-16 emergency intervention order on request of the applicant only until
32-17 the 90th day after the date the order was issued or the date a
32-18 personal representative is qualified, whichever occurs first.
32-19 (e) A person who is furnished with a certified copy of an
32-20 emergency intervention order within the period described by
32-21 Subsection (d) of this section is not personally liable for the
32-22 person's actions that are taken in accordance with and in reliance
32-23 on the order.
32-24 Sec. 534. ENFORCEMENT OF LIENS. If a personal
32-25 representative of the decedent's estate is not appointed or
32-26 qualified before the 90th day after the date an emergency order is
32-27 issued, all personal property held by a landlord or a warehouseman
33-1 is subject to a landlord's lien under Subchapter C, Chapter 54,
33-2 Property Code, and its subsequent amendments, or a warehouseman's
33-3 lien under Sections 7.209 and 7.210, Business & Commerce Code, and
33-4 their subsequent amendments. A person in possession of personal
33-5 property of the decedent received under an emergency intervention
33-6 order may enforce the landlord's or warehouseman's lien after the
33-7 90th day after the date the emergency intervention order is issued.
33-8 Sec. 535. TERMINATION. All power and authority of an
33-9 applicant under an emergency intervention order cease to be
33-10 effective or enforceable on the 90th day after the date the order
33-11 was issued or on the date a personal representative is qualified,
33-12 whichever occurs first.
33-13 SECTION 10. Sections 137 and 138, Texas Probate Code, are
33-14 repealed.
33-15 SECTION 11. The change in law made by this Act applies only
33-16 to the estate of a person who dies on or after the effective date
33-17 of this Act. An estate of a person who dies before the effective
33-18 date of this Act is covered by the law in effect on the date of the
33-19 person's death, and the former law continues in effect for that
33-20 purpose.
33-21 SECTION 12. This Act takes effect September 1, 1993.
33-22 SECTION 13. The importance of this legislation and the
33-23 crowded condition of the calendars in both houses create an
33-24 emergency and an imperative public necessity that the
33-25 constitutional rule requiring bills to be read on three several
33-26 days in each house be suspended, and this rule is hereby suspended.