1-1 By: Shelley S.B. No. 479
1-2 (In the Senate - Filed February 25, 1993; March 1, 1993, read
1-3 first time and referred to Committee on Jurisprudence;
1-4 April 6, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; April 6, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Henderson x
1-10 Harris of Tarrant x
1-11 Brown x
1-12 Harris of Dallas x
1-13 Luna x
1-14 Parker x
1-15 West x
1-16 COMMITTEE SUBSTITUTE FOR S.B. No. 479 By: Harris of Tarrant
1-17 A BILL TO BE ENTITLED
1-18 AN ACT
1-19 relating to the guardianship of a person or an estate, informal
1-20 probate of wills, informal distribution of estates, emergency
1-21 payment of burial expenses, and protection of a decedent's personal
1-22 property; creating the offense of interference with service of
1-23 citation on a proposed ward and providing a penalty.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Section 127A, Texas Probate Code, is amended to
1-26 read as follows:
1-27 Sec. 127A. GUARDIANSHIP OF MISSING PERSON <MISSING ON PUBLIC
1-28 SERVICE>. (a) Not less than six months after a person is reported
1-29 by an executive department of the United States to be a prisoner of
1-30 war or missing on the public service of the United States, any
1-31 person may file a written application for the appointment of a
1-32 guardian of the person of the missing person in the court of the
1-33 county of residence of the missing person's spouse or, if there is
1-34 no spouse, in the county of residence of a parent or child of the
1-35 missing person, or if there is no parent or child, in the county of
1-36 residence of the missing person's next of kin.
1-37 (b) If a person is discovered to be missing and there is
1-38 good cause, as evidenced by a police or other law enforcement
1-39 agency report or by testimony in open court by a peace officer, to
1-40 believe that the person is a victim of violence, any person may
1-41 file a written application for appointment of a temporary guardian
1-42 of the estate of the missing person.
1-43 (c) An <The> application under this section shall state:
1-44 (1) the name, sex, and last known residence of the
1-45 person for whom the appointment of a guardian is sought;
1-46 (2) in the case of a person reported missing under
1-47 Subsection (a) of this section, the executive department issuing
1-48 the report, the date of the report, and the last known whereabouts
1-49 of the missing person;
1-50 (3) the names and addresses of the missing person's
1-51 spouse, children, and parents or, if there is no spouse, child, or
1-52 parent, the name and address of the person's next of kin and facts
1-53 that show that the court has venue of the proceeding;
1-54 (4) the reason for the appointment and the interest of
1-55 the applicant in the appointment; and
1-56 (5) the name, relationship, and address of the person
1-57 whom the applicant desires to have appointed as guardian.
1-58 (d) <(c)> The court shall appoint an attorney to represent
1-59 the interests of the missing person and shall allow the attorney a
1-60 reasonable fee, not to exceed $25, for his services to be taxed as
1-61 part of the costs.
1-62 (e) <(d)> The attorney appointed to represent the interests
1-63 <interest> of the missing person shall be personally served with
1-64 citation to appear and answer the application for the appointment
1-65 of a guardian. The clerk of the court shall issue a notice setting
1-66 forth that an application has been filed for the guardianship of
1-67 the person or of the estate of the missing person and by whom the
1-68 application is made. The notice shall cite all persons interested
2-1 in the welfare of that person to appear at the time and place
2-2 stated in the notice and contest the application, if they so
2-3 desire. The notice shall be served by posting, and the sheriff or
2-4 other officer posting the notice shall return the original, signed
2-5 officially, stating thereon in writing the time and place that he
2-6 posted the copy of the notice. In addition to posting the notice,
2-7 a copy of the notice shall be mailed by registered or certified
2-8 mail to the spouse, to each child, to each parent of the missing
2-9 person, and to any other person that the court deems appropriate.
2-10 (f) <(e)> Any person has the right to appear and contest the
2-11 appointment of a particular person as guardian of the missing
2-12 person or of the estate of the missing person, or to contest any
2-13 guardianship proceeding which he deems to be injurious to the
2-14 missing person or to the estate of the missing person, or to
2-15 commence a guardianship proceeding which he deems beneficial to the
2-16 missing person or to the estate of the missing person.
2-17 (g) <(f)> Before appointing a guardian, the court must find:
2-18 (1) in the case of a person reported missing under
2-19 Subsection (a) of this section, that the person has been reported
2-20 missing by an executive department of the United States and still
2-21 is missing;
2-22 (2) that the court has venue of the proceeding and
2-23 that there is not an existing guardianship of this person or of the
2-24 estate of the person;
2-25 (3) that the person applying for appointment as the
2-26 guardian is a proper person to act as the guardian; <and>
2-27 (4) in the case of a person missing under Subsection
2-28 (b) of this section, that the person applying for appointment as
2-29 guardian has not been and is not presently under investigation by a
2-30 police or law enforcement agency in connection with the
2-31 disappearance of the missing person; and
2-32 (5) that the rights of the missing person or the
2-33 interests of the missing person's estate will be protected by the
2-34 appointment of the guardian.
2-35 (h)(1) A temporary guardian appointed for a person missing
2-36 under Subsection (b) of this section must post a bond as required
2-37 for a temporary guardian of any other ward. The temporary guardian
2-38 has the same authority to handle the affairs of the missing person
2-39 under court supervision as a temporary guardian has for any other
2-40 ward.
2-41 (2) A temporary guardianship under this subsection
2-42 continues until the:
2-43 (A) death of the missing person is confirmed;
2-44 (B) missing person is declared legally dead
2-45 under applicable statutes;
2-46 (C) missing person returns;
2-47 (D) whereabouts of the missing person is
2-48 determined; or
2-49 (E) guardianship is no longer necessary for any
2-50 other reason.
2-51 (i) <(g)> After the hearing, the court shall dismiss the
2-52 application or enter an order appointing a guardian to protect the
2-53 rights of the missing person or the interests of the missing
2-54 person's estate and may impose in the order any conditions or
2-55 restrictions it deems necessary to protect the rights of the
2-56 missing person or the interests of the missing person's estate. In
2-57 appointing the guardian, the court shall give preference to the
2-58 spouse of the missing person, and if there is no spouse shall give
2-59 preference to parents and children of the missing person.
2-60 (j) <(h)> The jurisdiction of the court over the
2-61 guardianship is continuing. If the missing person returns or, in
2-62 the case of a temporary guardianship under Subsection (h) of this
2-63 section, if any of the events listed in Subsection (h)(2) of this
2-64 section occur, on motion of any interested person after a notice,
2-65 stating that the motion has been filed and specifying the date of a
2-66 hearing, has been issued and served on the formerly missing person
2-67 as in other cases, the court shall amend or vacate the original
2-68 order of guardianship. A copy of the motion shall accompany the
2-69 notice.
2-70 SECTION 2. Subsection (c), Section 130, Texas Probate Code,
3-1 is amended to read as follows:
3-2 (c) Service of Citation. (1) Except as hereinafter
3-3 provided, minors who have attained the age of fourteen years,
3-4 persons alleged to be of unsound mind or habitual drunkards, and
3-5 persons for whom it is alleged to be necessary to have a guardian
3-6 appointed to receive funds from any governmental source or agency
3-7 shall be personally served with citation to appear and answer the
3-8 application for the appointment of a guardian.
3-9 (2) If a court finds that any person is interfering
3-10 with the personal service of a citation under this subsection, the
3-11 court may order a sheriff or constable to use reasonable force to
3-12 prevent the person from interfering with the service of the
3-13 citation.
3-14 SECTION 3. Section 157, Texas Probate Code, is amended to
3-15 read as follows:
3-16 Sec. 157. When Spouse Incompetent. Whenever a husband or
3-17 wife is judicially declared to be incompetent, the other spouse, in
3-18 the capacity of surviving partner of the marital partnership,
3-19 thereupon acquires full power to manage, control, and dispose of
3-20 the entire community estate, including the part which the
3-21 incompetent spouse would legally have power to manage in the
3-22 absence of such incompetency, and no administration, community or
3-23 otherwise, shall be necessary if the court finds that it is in the
3-24 best interest of the incompetent spouse not to require
3-25 administration of the estate and that the competent spouse is not
3-26 disqualified under Section 110 of this code to serve as guardian.
3-27 Guardianship of the estate of the incompetent spouse shall not be
3-28 necessary when the other spouse is competent and the court finds
3-29 that it is in the best interest of the incompetent spouse not to
3-30 require a guardianship of the estate and that the competent spouse
3-31 is not disqualified under Section 110 of this code to serve as
3-32 guardian unless the incompetent spouse owns separate property, and
3-33 then as to such separate property only. The qualification of a
3-34 guardian of the separate estate of an incompetent spouse does not
3-35 deprive the competent spouse of the right to manage, control, and
3-36 dispose of the entire community estate as provided in this code
3-37 <Code>.
3-38 SECTION 4. Section 245, Texas Probate Code, is amended to
3-39 read as follows:
3-40 Sec. 245. WHEN COSTS ARE ADJUDGED AGAINST REPRESENTATIVE.
3-41 (a) When the personal representative of an estate or person
3-42 neglects the performance of any duty required of him, and any costs
3-43 are incurred thereby, or if he is removed for cause, he and the
3-44 sureties on his bond shall be liable for costs of removal and other
3-45 additional costs incurred that are not authorized expenditures, as
3-46 defined by this code, and for reasonable attorney's fees incurred
3-47 in removing him and in obtaining his compliance regarding any
3-48 statutory duty he has neglected.
3-49 (b) If the personal representative is a guardian of an
3-50 estate and a court finds that the attorney advising the guardian
3-51 has been grossly negligent in the performance of the attorney's
3-52 duties to the guardian, the court may equitably apportion the costs
3-53 described by Subsection (a) of this section between:
3-54 (1) the attorney advising the guardian; and
3-55 (2) the guardian and the sureties on the guardian's
3-56 bond.
3-57 SECTION 5. Subsection (a), Section 399, Texas Probate Code,
3-58 is amended to read as follows:
3-59 (a) Estates of Decedents and Wards Being Administered Under
3-60 Order of Court. The personal representative of the estate of a
3-61 decedent or ward being administered under order of court shall,
3-62 upon the expiration of twelve (12) months from the date of
3-63 qualification and receipt of letters, return to the court an
3-64 exhibit in writing under oath setting forth a list of all claims
3-65 against the estate that were presented to him within the period
3-66 covered by the account, specifying which have been allowed by him,
3-67 which have been paid, which have been rejected and the date when
3-68 rejected, which have been sued upon, and the condition of the suit,
3-69 and show:
3-70 (1) All property that has come to his knowledge or
4-1 into his possession not previously listed or inventoried as
4-2 property of the estate or ward, as the case may be.
4-3 (2) Any changes in the property of the estate or ward
4-4 which have not been previously reported.
4-5 (3) A complete account of receipts and disbursements
4-6 for the period covered by the account, and the source and nature
4-7 thereof, with receipts of principal and income to be shown
4-8 separately.
4-9 (4) A complete, accurate and detailed description of
4-10 the property being administered, the condition of the property and
4-11 the use being made thereof, and, if rented, the terms upon and the
4-12 price for which rented.
4-13 (5) The cash balance on hand and the name and location
4-14 of the depository wherein such balance is kept; also, any other
4-15 sums of cash in savings accounts or other form, deposited subject
4-16 to court order, and the name and location of the depository
4-17 thereof.
4-18 (6) A detailed description of personal property of the
4-19 estate, which shall, with respect to bonds, notes, and other
4-20 securities, include the names of obligor and obligee, or if payable
4-21 to bearer, so state; the date of issue and maturity; the rate of
4-22 interest; serial or other identifying numbers; in what manner the
4-23 property is secured; and other data necessary to identify the same
4-24 fully, and how and where held for safekeeping.
4-25 (7) A statement that, during the period covered by the
4-26 account, all tax returns due have been filed and that all taxes due
4-27 and owing have been paid and a complete account of the amount of
4-28 the taxes, the date the taxes were paid, and the governmental
4-29 entity to which the taxes were paid.
4-30 (8) If any tax return due to be filed or any taxes due
4-31 to be paid are delinquent on the filing of the account, a detailed
4-32 description of the delinquency and the reasons for the delinquency.
4-33 SECTION 6. Subsection (a), Section 404, Texas Probate Code,
4-34 is amended to read as follows:
4-35 (a) Administration of the estates of decedents and
4-36 guardianship of the persons and estates of wards shall be settled
4-37 and closed:
4-38 (1) when all the debts known to exist against the
4-39 estate of a deceased person have been paid, or when they have been
4-40 paid so far as the assets in the hands of an administrator or
4-41 executor of such estate will permit, and when there is no further
4-42 need for administration;
4-43 (2) when a minor ward dies, or becomes an adult by
4-44 becoming eighteen years of age, or by removal of disabilities of
4-45 minority according to the law of this state, or by marriage, or
4-46 when the necessity for guardianship no longer exists for other
4-47 reasons;
4-48 (3) when an incompetent ward dies, or is decreed as
4-49 provided by law to have been restored to sound mind or sober
4-50 habits, or, being married, when his or her spouse has qualified as
4-51 survivor in community;
4-52 (4) when a ward entitled to funds from a governmental
4-53 source dies, or when the court finds that the necessity for the
4-54 guardianship of that person has ended;
4-55 (5) when the estate of a ward becomes exhausted; or
4-56 (6) when the foreseeable income accruing to a ward or
4-57 to his estate is so negligible that maintaining the guardianship in
4-58 force would be burdensome.
4-59 SECTION 7. Section 405, Texas Probate Code, is amended to
4-60 read as follows:
4-61 Sec. 405. Account for Final Settlement of Estates of
4-62 Decedents and Persons and Estates of Wards. When administration of
4-63 the estate of a decedent, or guardianship of person or estate, or
4-64 of the person and estate of a ward, is to be settled and closed,
4-65 the personal representative of such estate or of such ward shall
4-66 present to the court his verified account for final settlement. In
4-67 such account it shall be sufficient to refer to the inventory
4-68 without describing each item of property in detail, and to refer to
4-69 and adopt any and all proceedings had in the administration or
4-70 guardianship, as the case may be, concerning sales, renting or
5-1 hiring, leasing for mineral development, or any other transactions
5-2 on behalf of the estate or of the ward, as the case may be,
5-3 including exhibits, accounts, and vouchers previously filed and
5-4 approved, without restating the particular items thereof. Each
5-5 final account, however, shall be accompanied by proper vouchers in
5-6 support of each item thereof not already accounted for and shall
5-7 show, either by reference to any proceedings authorized above or by
5-8 statement of the facts:
5-9 (a) As to Estates of Decedents.
5-10 1. The property belonging to the estate which
5-11 has come into the hands of the executor or administrator.
5-12 2. The disposition that has been made of such
5-13 property.
5-14 3. The debts that have been paid.
5-15 4. The debts and expenses, if any, still owing
5-16 by the estate.
5-17 5. The property of the estate, if any, still
5-18 remaining on hand.
5-19 6. The persons entitled to receive such estate,
5-20 their relationship to the decedent, and their residence, if known,
5-21 and whether adults or minors, and, if minors, the names of their
5-22 guardians, if any.
5-23 7. All advancements or payments that have been
5-24 made, if any, by the executor or administrator from such estate to
5-25 any such person.
5-26 8. The tax returns due that have been filed and
5-27 the taxes due and owing that have been paid and a complete account
5-28 of the amount of taxes, the date the taxes were paid, and the
5-29 governmental entity to which the taxes were paid.
5-30 9. If any tax return due to be filed or any
5-31 taxes due to be paid are delinquent on the filing of the account, a
5-32 detailed description of the delinquency and the reasons for the
5-33 delinquency.
5-34 (b) As to Estates of Wards.
5-35 1. The property, rents, revenues, and profits
5-36 received by the guardian, and belonging to his ward, during his
5-37 guardianship.
5-38 2. The disposition made of such property, rents,
5-39 revenues, and profits.
5-40 3. The expenses and debts, if any, against the
5-41 estate remaining unpaid.
5-42 4. The tax returns due that have been filed and
5-43 the taxes due and owing that have been paid and a complete account
5-44 of the amount of taxes, the date the taxes were paid, and the
5-45 governmental entity to which the taxes were paid.
5-46 5. If any tax return due to be filed or any
5-47 taxes due to be paid are delinquent on the filing of the account of
5-48 taxes paid, a detailed description of the delinquency and the
5-49 reasons for the delinquency.
5-50 6. The property of the estate remaining in the
5-51 hands of such guardian, if any.
5-52 7. <5.> Such other facts as appear necessary to
5-53 a full and definite understanding of the exact condition of the
5-54 guardianship.
5-55 SECTION 8. Chapter 38, Penal Code, is amended by adding
5-56 Section 38.19 to read as follows:
5-57 Sec. 38.19. INTERFERENCE WITH SERVICE OF CITATION ON
5-58 PROPOSED WARD. (a) In this section, "conspires to commit" has the
5-59 meaning assigned by Section 71.01(b) of this code.
5-60 (b) A person commits an offense if the person:
5-61 (1) intentionally interferes with the service of
5-62 personal citation on a proposed ward in a guardianship proceeding;
5-63 or
5-64 (2) conspires to commit an offense under this section.
5-65 (c) An offense under this section is a Class A misdemeanor.
5-66 SECTION 9. The Texas Probate Code is amended by adding
5-67 Chapter XII to read as follows:
5-68 CHAPTER XII. INFORMAL PROBATE
5-69 PART 1. INFORMAL PROBATE WITH AND WITHOUT ISSUANCE OF LETTERS
5-70 Sec. 501. TIME TO FILE APPLICATION FOR INFORMAL PROBATE.
6-1 (a) An applicant may file an application for the informal probate
6-2 of a will with the court clerk not earlier than the 30th day after
6-3 the date of the testator's death.
6-4 (b) A will may not be admitted for informal probate after
6-5 the fourth anniversary of the date of the testator's death unless
6-6 the applicant shows that the applicant was not aware of the will's
6-7 existence and did not cause the failure to timely file the will for
6-8 probate.
6-9 Sec. 502. ELIGIBLE APPLICANTS FOR INFORMAL PROBATE; VENUE.
6-10 (a) An executor, alternate, devisee, or legatee named in a will
6-11 may make an application for the informal probate of the will.
6-12 (b) The applicant may file the application in the county in
6-13 which the testator was domiciled on the date of death or in the
6-14 county in which the estate assets are located.
6-15 Sec. 503. REQUIREMENTS FOR INFORMAL PROBATE. (a) An
6-16 applicant may file a will for informal probate with the court
6-17 clerk:
6-18 (1) if:
6-19 (A) all of the estate's known debts have been
6-20 satisfied;
6-21 (B) all existing and outstanding debts are
6-22 secured on real or personal property through certificates of title
6-23 or by Uniform Commercial Code filings; or
6-24 (C) the applicant notifies all creditors of the
6-25 estate by certified or registered mail of the filing; and
6-26 (2) if:
6-27 (A) an application has not been filed and is not
6-28 pending under Section 81, 82, 89, or 145 of this code; and
6-29 (B) the applicant files an affidavit of a
6-30 disinterested witness that contains the proof of facts required to
6-31 probate a will under Sections 88(a) and (b) of this code.
6-32 (b) The applicant submits personally to the jurisdiction of
6-33 the probate court in any proceeding for relief relating to the
6-34 informal probate proceeding and distribution of assets and to the
6-35 suit in the probate court for any actions taken while administering
6-36 estate assets, including a civil action for perjury or fraud
6-37 relating to the application.
6-38 Sec. 504. CONTENTS OF APPLICATION. (a) An application for
6-39 informal probate of a will must be under oath and must establish:
6-40 (1) that 30 days have elapsed after the date of the
6-41 testator's death;
6-42 (2) that all debts of the estate have been satisfied
6-43 or are properly secured or all creditors have received notice of
6-44 the application's filing;
6-45 (3) that the total gross fair market value of the
6-46 estate, including real and personal property but not including
6-47 homestead or exempt property, did not exceed $50,000 on the date
6-48 the application was prepared;
6-49 (4) that the court has venue;
6-50 (5) to the applicant's knowledge and belief, that the
6-51 will being offered for informal probate has never been revoked; and
6-52 (6) to the applicant's knowledge and belief, that no
6-53 person named in the will has objected to the offer of the will for
6-54 informal probate.
6-55 (b) If the will is not available, the application must
6-56 contain affidavits of the applicant and a disinterested person
6-57 stating:
6-58 (1) the source of knowledge of the terms of the will;
6-59 (2) the reasons an original will is not available;
6-60 (3) the terms of the will;
6-61 (4) the date the will was executed; and
6-62 (5) the names of the witnesses to the execution of the
6-63 will.
6-64 (c) The application must contain the social security number
6-65 and present address of the applicant and the social security number
6-66 and last known address of the testator.
6-67 Sec. 505. NOTICE. (a) Before filing an application for
6-68 informal probate, the applicant shall give notice of the intent to
6-69 file the application by certified or registered mail to all persons
6-70 named in the will whose addresses are known or are reasonably
7-1 ascertainable and to the decedent's surviving spouse and children
7-2 and shall provide those persons a copy of the will.
7-3 (b) If a distributee named in the will is a minor or
7-4 incompetent, the applicant shall notify the natural guardian of the
7-5 minor or the guardian of the person of the incompetent distributee.
7-6 (c) The applicant shall file the return receipts or original
7-7 returned notices with the application.
7-8 (d) Notice is not required under this section to a person
7-9 who joins in the application for informal probate or to a person
7-10 who waives notice if the person's sworn waiver of notice is filed
7-11 with the application or is filed before the court considers the
7-12 application.
7-13 Sec. 506. FILING OF WILL OR AFFIDAVIT; INVENTORY. (a) The
7-14 applicant must file the will or an affidavit explaining the will's
7-15 absence with the application. The will remains in the custody of
7-16 the court clerk unless removed by order of a proper court.
7-17 (b) The applicant shall prepare a sworn, full, and complete
7-18 inventory of all assets required to be included in the testator's
7-19 estate. The applicant shall list all assets at the assets' fair
7-20 market value at or about the time the application was prepared
7-21 without reduction for any outstanding secured debts. If the
7-22 valuation of an asset is questioned, the court may, on its own
7-23 motion or on request of an interested person, appoint an appraiser
7-24 for the asset and order that the applicant deposit the cost of the
7-25 appraisal in advance with the court clerk. The applicant shall
7-26 file the inventory with the application. The inventory must:
7-27 (1) contain the information required by Sections 250
7-28 and 251 of this code; and
7-29 (2) if the testator is survived by a spouse, identify
7-30 the community assets and list the assets' one-half community value.
7-31 (c) The court clerk may not present the application to the
7-32 judge of the court before the 11th day after the date the
7-33 application is filed. The court shall determine, in its
7-34 discretion, whether the application meets the requirements for an
7-35 application for informal probate and may admit the will for
7-36 informal probate.
7-37 (d) If the court determines that the will is not admissible
7-38 for informal probate, the denial is not a final adjudication of the
7-39 validity of the will and does not preclude a subsequent application
7-40 for probate of the will in a formal probate proceeding.
7-41 Sec. 507. LIMITED LETTERS TESTAMENTARY. (a) An executor,
7-42 alternate, devisee, or legatee named in a will may request in an
7-43 application for the informal probate of the will that the clerk of
7-44 the probate court issue limited letters testamentary to the
7-45 applicant for the purpose of transferring title to the assets or
7-46 interests in the assets of the testator's estate, including any
7-47 increases to the assets that accrued after the date of the
7-48 testator's death and that are specifically identified and described
7-49 in the inventory included in the application or any subsequently
7-50 filed amended or supplemental inventory.
7-51 (b) The letters or a certified copy of the inventory
7-52 attached to the letters must identify the assets subject to
7-53 transfer under the letters.
7-54 (c) A transfer or an attempt to transfer title to assets of
7-55 the estate not identified in the letters, including any increases
7-56 to the assets that may have accrued after the date of the
7-57 testator's death, is void.
7-58 (d) Limited letters are valid for one year after the date of
7-59 the application's approval.
7-60 (e) The judge of the court that issued the original letters
7-61 may order the issuance of additional letters. The order for
7-62 additional letters must contain the date that those letters expire.
7-63 Additional letters are not renewable.
7-64 Sec. 508. REVIEW OF APPLICATION FOR INFORMAL PROBATE.
7-65 (a) The court in which an application for informal probate has
7-66 been filed shall determine whether:
7-67 (1) the application is complete;
7-68 (2) the applicant has acknowledged that all statements
7-69 of fact contained in the application are true and correct;
7-70 (3) the applicant is an executor, alternate, devisee,
8-1 or legatee named in the will;
8-2 (4) venue is correct;
8-3 (5) an original, duly executed will or the affidavits
8-4 required by Section 504 of this code are filed with the
8-5 application;
8-6 (6) copies of required notices or waivers by persons
8-7 named in the will and the surviving spouse, children, and creditors
8-8 are attached to the application;
8-9 (7) an objection has not been made to the request for
8-10 informal probate by any creditor or person named in the will;
8-11 (8) the time for applying for an informal probate has
8-12 not expired;
8-13 (9) the application contains the required information;
8-14 and
8-15 (10) an appraiser is necessary to determine the value
8-16 of any asset.
8-17 (b) The court shall deny the application if:
8-18 (1) a personal representative has been appointed in
8-19 another county;
8-20 (2) except as provided by Subsection (d) of this
8-21 section, this or another will of the decedent has been the subject
8-22 of a previous probate order in this state; or
8-23 (3) the court, in its discretion, determines formal
8-24 probate is necessary.
8-25 (c) The court may probate a will that is a self-proved will
8-26 under Section 59 of this code without further proof. If the will
8-27 is not self-proving under Section 59 of this code, the court may,
8-28 in the absence of an objection, presume compliance with Section 59
8-29 of this code if the will is filed with a sworn statement or
8-30 affidavit of a person having personal knowledge of the
8-31 circumstances of the execution of the will, whether or not the
8-32 person was a witness to the will.
8-33 (d) A court may informally probate at any time a will that
8-34 has been probated by the court of another state on the written
8-35 application of a representative, devisee, or legatee named in the
8-36 will. The applicant shall file an authenticated copy of the will
8-37 and foreign proceedings in place of the original will.
8-38 Sec. 509. EFFECT OF INFORMAL PROBATE. (a) A person who
8-39 makes a payment or transfers property under the terms of a will
8-40 admitted to informal probate or under limited letters is released
8-41 from liability or responsibility to the same extent as if the
8-42 payment or transfer had been made to the personal representative of
8-43 an estate. The person is not required to see the application for
8-44 informal probate or to inquire into the truth of any statement
8-45 contained in the application for informal probate. The person to
8-46 whom the ultimate payment or transfer of an asset is made under the
8-47 terms of the will is responsible for the asset and is liable to a
8-48 personal representative, a creditor of the testator, or any person
8-49 having a superior right or claim of possession or ownership to the
8-50 asset.
8-51 (b) A representative or beneficiary under an informally
8-52 probated will who acquires property under the will may be liable to
8-53 the extent of the value of the property actually acquired to a
8-54 person or creditor of the estate with a superior right or claim to
8-55 the property for damages caused by the transfer of the property to
8-56 the representative or beneficiary under the terms of the will.
8-57 (c) If a person who is entitled to property of the estate,
8-58 including the representative, a creditor, a beneficiary, or a
8-59 guardian, makes a written demand by certified or registered mail
8-60 containing a certified copy of the probated will and order
8-61 admitting the will or limited letters to a person in possession of
8-62 estate property and the person refuses or fails to deliver or
8-63 transfer the property before the 31st day after the date of the
8-64 demand, the person who is entitled to the property may file a show
8-65 cause action in the court that probated the will to recover the
8-66 property. The person entitled to the property may recover the fair
8-67 market value of the property, reasonable damages for the loss of
8-68 use of the property, reasonable attorney fees, and costs of court.
8-69 (d) If a beneficiary under a will is a minor or an
8-70 incompetent without a guardian of the minor's or incompetent's
9-1 estate, all cash, stocks, bonds, or personal property that can be
9-2 converted to cash to which the beneficiary is entitled may not be
9-3 distributed to the natural guardian or guardian of the person. The
9-4 representative of the estate shall convert the assets to cash and
9-5 deposit the cash in the court registry until a legal guardian of an
9-6 estate is appointed or shall deposit the cash as provided by
9-7 Section 144 of this code for the benefit of the ward.
9-8 Sec. 510. TIME TO CONTEST VALIDITY OF WILL. (a) Except as
9-9 provided by Subsection (b) or (c) of this section, an interested
9-10 person may file suit to contest the validity of a will admitted to
9-11 informal probate not later than two years after the date the will
9-12 was admitted.
9-13 (b) An interested person may institute suit to contest the
9-14 validity of a will admitted to informal probate for forgery or
9-15 other fraud not later than two years after the date the forgery or
9-16 fraud is discovered.
9-17 (c) A minor or incompetent person may file suit to contest
9-18 the validity of a will admitted to informal probate not later than
9-19 two years after the date the disabilities of the minor or
9-20 incompetent are removed.
9-21 PART 2. INFORMAL PROBATE WITHOUT WILL
9-22 Sec. 520. TIME TO FILE INFORMAL DISTRIBUTION APPLICATION.
9-23 (a) Except as provided by Subsection (b) of this section, if a
9-24 decedent dies without a will, the distributees of a decedent may
9-25 file an application requesting informal distribution of the
9-26 decedent's estate with the court clerk not earlier than the 30th
9-27 day after the date of the decedent's death.
9-28 (b) The distributees may request informal distribution at
9-29 any time if the distributees can show:
9-30 (1) a necessity to receive or recover funds or other
9-31 property in this state that were due or owned by the decedent at
9-32 the time of death; and
9-33 (2) the distributees' actions were not the cause for
9-34 any unreasonable delay in filing the request.
9-35 Sec. 521. ELIGIBLE APPLICANTS. (a) Except as provided by
9-36 Subsection (b) of this section, all persons entitled to receive the
9-37 decedent's property under Section 38 of this code shall join in the
9-38 application for informal distribution of the estate.
9-39 (b) If the decedent is survived by a spouse or adult
9-40 children and only community assets exist, the surviving spouse is
9-41 not required to join in the application. If the spouse has not
9-42 joined in the application, the distributees shall notify the spouse
9-43 by certified or registered mail of the distributees' intention to
9-44 file the application. The distributees shall attach proof of the
9-45 notice to the application before filing.
9-46 (c) If a distributee of the decedent's estate is a minor or
9-47 incompetent, the natural guardian of the minor or the legal
9-48 guardian of the person or of an incompetent distributee must join
9-49 in the application.
9-50 Sec. 522. REQUIREMENTS FOR INFORMAL DISTRIBUTION. (a) The
9-51 distributees may file an application for informal distribution only
9-52 if:
9-53 (1) all of the estate's known debts have been
9-54 satisfied;
9-55 (2) all existing and outstanding debts against the
9-56 estate are secured on real or personal property through
9-57 certificates of title or by Uniform Commercial Code filings; or
9-58 (3) all known or ascertainable creditors have been
9-59 provided notice by certified or registered mail of the
9-60 distributees' intention to file the application and have not filed
9-61 an objection not later than the fifth day after the date of receipt
9-62 of notice.
9-63 (b) The distributees shall file all return receipts of
9-64 notices with the application.
9-65 (c) The court clerk may accept the application for filing
9-66 if:
9-67 (1) an application has not been filed under Section 82
9-68 or 162 of this code; and
9-69 (2) a proceeding to determine heirship has not been
9-70 instituted under Section 48 of this code in this state.
10-1 (d) The distributees submit personally to the jurisdiction
10-2 of the probate court in any proceeding for relief relating to the
10-3 distribution of assets and to suit in the probate court for any
10-4 actions taken in the collection of assets, including civil actions
10-5 for perjury or fraud relating to the application.
10-6 Sec. 523. CONTENTS OF APPLICATION. (a) An application for
10-7 informal distribution must be under oath and must establish that:
10-8 (1) 30 days have elapsed after the date of death of
10-9 the decedent;
10-10 (2) the gross fair market value of the decedent's
10-11 estate, including real and personal property but not including
10-12 homestead or exempt property, did not exceed $50,000 on the date
10-13 the application was prepared;
10-14 (3) venue is proper in the court because the decedent
10-15 was domiciled in or the estate's principal assets are located in
10-16 the county in which the application is filed;
10-17 (4) another proceeding for disposition of the
10-18 decedent's assets has not been instituted in any other county of
10-19 this state or in a foreign jurisdiction; and
10-20 (5) all known or reasonably ascertained creditors of
10-21 the decedent have been notified of this proceeding.
10-22 (b) The application must contain:
10-23 (1) the social security number and current address of
10-24 each distributee and the social security number and last known
10-25 address of the decedent; and
10-26 (2) the sworn statements of two disinterested
10-27 witnesses who were well acquainted with the decedent stating the
10-28 decedent's family history and identifying the decedent's heirs.
10-29 Sec. 524. NOTICE TO CREDITORS; ESTATE DEBTS. (a) Except as
10-30 provided by Subsection (b) of this section, the distributees shall
10-31 provide by certified or registered mail a copy of the proposed
10-32 application for informal distribution to all unsecured creditors of
10-33 the estate whose addresses are known or are reasonably
10-34 ascertainable by due diligence. The distributees shall attach
10-35 return receipts or original returned notices to the application
10-36 before filing.
10-37 (b) Notice to an unsecured creditor is not required if a
10-38 distributee pays the debt owed to the creditor before filing the
10-39 application or if a distributee assumes personal liability for the
10-40 debt.
10-41 (c) The distributee shall file evidence of payment or
10-42 assumption of the debt with the application.
10-43 (d) If a distributee has paid or assumed a debt of the
10-44 estate, the distributee may obtain reimbursement from any
10-45 unencumbered estate assets up to the amount of the paid or assumed
10-46 debts.
10-47 Sec. 525. INVENTORY; APPRAISAL. (a) The application must
10-48 contain an inventory and list of claims as described by Sections
10-49 250 and 251 of this code.
10-50 (b) Assets must be listed at the assets' fair market value
10-51 at or about the time the application was prepared without reduction
10-52 for any outstanding secured debts.
10-53 (c) If the valuation of an asset is questioned by an
10-54 interested person or the court, the court may, on its own motion or
10-55 on request of an interested person, appoint an appraiser for the
10-56 asset and order the distributees to deposit equal shares of the
10-57 cost of the appraisal in advance with the court clerk.
10-58 Sec. 526. PROCEDURES FOR INFORMAL DISTRIBUTION. (a) The
10-59 distributees shall prepare a sworn, full, and complete inventory of
10-60 all assets of the decedent's estate that are required to be
10-61 included in the decedent's estate or that came to the distributees'
10-62 possession or knowledge. The distributees shall file the inventory
10-63 with the application. The inventory must:
10-64 (1) contain the information required by Sections 250
10-65 and 251 of this code; and
10-66 (2) if the decedent is survived by a spouse, identify
10-67 the community assets and list the assets' one-half community value.
10-68 (b) The court clerk may not present the application to the
10-69 judge of the court before the 11th day after the date the
10-70 application is filed. The court, in its discretion, shall
11-1 determine whether the application meets the requirements of this
11-2 section and Sections 520 through 525 of this code and may accept
11-3 the application for informal distribution.
11-4 (c) If the court does not accept the application for
11-5 informal distribution, the denial does not preclude a subsequent
11-6 application for an intestate probate proceeding.
11-7 Sec. 527. REVIEW OF APPLICATION FOR INFORMAL DISTRIBUTION.
11-8 (a) The court in which the application for informal distribution
11-9 has been filed shall determine whether:
11-10 (1) all heirs of the decedent have joined in the
11-11 application;
11-12 (2) all creditors of the decedent have been notified
11-13 of the filing of the application or debts have been paid or
11-14 assumed;
11-15 (3) the application is properly sworn to by all
11-16 parties and witnesses;
11-17 (4) an objection to the application has been filed;
11-18 (5) venue is proper;
11-19 (6) adequate information has been provided to
11-20 establish the heirship of the decedent's heirs;
11-21 (7) the assets of the decedent do not exceed $50,000,
11-22 not including homestead and exempt property; and
11-23 (8) an appraiser is necessary to determine the value
11-24 of any asset.
11-25 (b) The court shall deny the application if:
11-26 (1) a personal representative has been appointed in
11-27 another county;
11-28 (2) a will has been admitted to probate in this or in
11-29 a foreign jurisdiction;
11-30 (3) a will exists and has not been offered for
11-31 probate; or
11-32 (4) an heirship proceeding has been instituted under
11-33 Section 48 of this code.
11-34 (c) If the heirship testimony furnished is in dispute or
11-35 ambiguous, the court, in its discretion, may deny the application
11-36 and require the appointment of an administrator or institution of
11-37 formal heirship proceedings.
11-38 (d) If an objection is filed by an heir or creditor, the
11-39 court shall deny the application.
11-40 (e) If the debts of the decedent exceed the value of the
11-41 assets, the court shall deny the application.
11-42 (f) A transfer of or an attempt to transfer title to any
11-43 property or interest in assets of the estate or any increases to
11-44 estate assets not identified in the inventory filed with the
11-45 application or any subsequently filed amended or supplemental
11-46 inventory is void.
11-47 Sec. 528. EFFECT OF INFORMAL DISTRIBUTION. (a) A person
11-48 who makes a payment or transfers property under a court order
11-49 approving the informal distribution of an estate is released from
11-50 liability or responsibility to the same extent as if the payment or
11-51 transfer had been made to the personal representative of an estate.
11-52 A person who makes a payment or transfers property is not required
11-53 to inquire into the truth of any statement contained in the
11-54 application.
11-55 (b) A distributee receiving possession of an asset of the
11-56 decedent is liable to the extent of the value of the asset received
11-57 to a person or creditor having a superior right or claim of
11-58 possession or ownership to the asset for damages caused by the
11-59 payment or transfer of the asset under this section.
11-60 (c) If a person who is entitled to the property of the
11-61 decedent, including a creditor, distributee, or guardian, makes a
11-62 written demand by certified or registered mail containing a
11-63 certified copy of the application and a court order of distribution
11-64 to a person in possession of the property and the person fails or
11-65 refuses to deliver or transfer the property before the 31st day
11-66 after the date of the demand, the person entitled to the property
11-67 may file a show cause action in the court that ordered the
11-68 distribution to recover the property. The person entitled to the
11-69 property may recover the fair market value of the property,
11-70 reasonable damages for the loss of use of the property, reasonable
12-1 attorney fees, and costs of court.
12-2 (d) If a distributee is a minor or is an incompetent without
12-3 a guardian of the minor's or incompetent's estate, all money,
12-4 stocks, bonds, or transferable evidence of property to which the
12-5 distributee is entitled may not be distributed to the natural
12-6 guardian or guardian of the person. The person in possession of
12-7 the property shall deposit the property in the court registry or,
12-8 if necessary, convert the property to money and deposit the money
12-9 as provided by Section 144 of this code for the benefit of the
12-10 ward. The property shall remain deposited until a legal guardian
12-11 of the estate is appointed. Real property interests of a minor or
12-12 incompetent may not be sold or converted under this subsection.
12-13 PART 3. EMERGENCY INTERVENTION PROCEEDINGS; FUNERAL
12-14 AND BURIAL EXPENSES
12-15 Sec. 530. TIME TO FILE EMERGENCY APPLICATION. An applicant
12-16 may file an application requesting emergency intervention by a
12-17 court exercising probate jurisdiction to provide for the payment
12-18 of funeral and burial expenses or the protection and storage of
12-19 personal property owned by the decedent that was located in rented
12-20 accommodations on the date of the decedent's death with the clerk
12-21 of the court in the county of domicile of the decedent not earlier
12-22 than the third day after the date of the decedent's death and not
12-23 later than the 90th day after the date of the decedent's death.
12-24 Sec. 531. ELIGIBLE APPLICANTS FOR EMERGENCY INTERVENTION. A
12-25 person qualified to serve as an administrator under Section 77 of
12-26 this code may file an emergency intervention application.
12-27 Sec. 532. REQUIREMENTS FOR EMERGENCY INTERVENTION
12-28 APPLICATION. (a) An application for emergency intervention must
12-29 be sworn and must contain:
12-30 (1) the name, address, social security number, and
12-31 interest of the applicant;
12-32 (2) the facts showing an immediate necessity for the
12-33 issuance of an emergency intervention order by the court;
12-34 (3) the date of the decedent's death, place of death,
12-35 decedent's residential address, and the name and address of the
12-36 funeral home holding the decedent's remains;
12-37 (4) any known or ascertainable heirs of the decedent
12-38 and the reason:
12-39 (A) the heirs cannot be contacted; or
12-40 (B) the heirs have refused to assist in the
12-41 decedent's burial or protection of the decedent's personal
12-42 property;
12-43 (5) a description of funeral and burial procedures
12-44 necessary and a detailed and itemized description of the cost of
12-45 the funeral and burial procedures;
12-46 (6) the name, location, and identification of property
12-47 or persons in possession of the decedent's property; and
12-48 (7) the name and address of the owner or manager of
12-49 the decedent's rented premises and whether access to the premises
12-50 is necessary.
12-51 (b) If emergency intervention is necessary for funeral and
12-52 burial, the application shall state whether any written
12-53 instructions from the decedent relating to a funeral or burial
12-54 exist. The applicant shall attach the instructions to the
12-55 application or file the instructions before the funeral or burial
12-56 and fully comply with the instructions. If written instructions do
12-57 not exist, the applicant shall provide for the funeral and burial
12-58 of the decedent unless the applicant obtains the court's permission
12-59 to cremate the decedent's remains.
12-60 Sec. 533. ORDERS OF EMERGENCY INTERVENTION. (a) If the
12-61 court determines on review of the application that emergency
12-62 intervention is necessary, the court may order:
12-63 (1) funds of the decedent held by an employer,
12-64 individual, or financial institution to be paid directly to a
12-65 funeral home only for funeral and burial expenses not to exceed
12-66 $5,000 as ordered by the court to provide the decedent with a
12-67 reasonable, dignified, and appropriate funeral and burial;
12-68 (2) the applicant and the owner or agent of the
12-69 decedent's rented accommodations to jointly prepare an inventory of
12-70 the contents of the decedent's property and to file the inventory
13-1 after the inventory is signed by both parties with the court; or
13-2 (3) the owner of the decedent's rented accommodations
13-3 to deliver:
13-4 (A) any will of the decedent discovered on the
13-5 premises to the court clerk;
13-6 (B) any life insurance policy of the decedent
13-7 that names the applicant as sole beneficiary to the applicant;
13-8 (C) other life insurance policies of the
13-9 decedent to the court clerk; and
13-10 (D) any deed to a burial plot of the decedent to
13-11 the funeral home holding the decedent's remains.
13-12 (b) If the decedent's rental payments are delinquent, the
13-13 owner of rented accommodations may hold the decedent's personal
13-14 property as security for the payment of the delinquency until the
13-15 90th day after the date of death of the decedent or until the date
13-16 a court-appointed personal representative is qualified, whichever
13-17 occurs first.
13-18 (c) If rental payments are not delinquent, the court may
13-19 order the owner or agent of the owner to arrange for the storage of
13-20 the decedent's property in a proper facility for the protection of
13-21 the property. The applicant for emergency intervention shall pay
13-22 the costs of storage until the 90th day after the date the court's
13-23 emergency intervention order was issued. The court may order the
13-24 reimbursement of storage expenses to the applicant from the
13-25 decedent's estate. A court may not order the release of any
13-26 property to any person, other than a personal representative or to
13-27 judicially determined heirs, beneficiaries, or distributees of the
13-28 decedent.
13-29 (d) The court clerk may issue certified copies of an
13-30 emergency intervention order on request of the applicant only until
13-31 the 90th day after the date the order was issued or the date a
13-32 personal representative is qualified, whichever occurs first.
13-33 (e) A person who is furnished with a certified copy of an
13-34 emergency intervention order within the period described by
13-35 Subsection (d) of this section is not personally liable for the
13-36 person's actions that are taken in accordance with and in reliance
13-37 on the order.
13-38 Sec. 534. ENFORCEMENT OF LIENS. If a personal
13-39 representative of the decedent's estate is not appointed or
13-40 qualified before the 90th day after the date an emergency order is
13-41 issued, all personal property held by a landlord or a warehouseman
13-42 is subject to a landlord's lien under Subchapter C, Chapter 54,
13-43 Property Code, and its subsequent amendments, or a warehouseman's
13-44 lien under Sections 7.209 and 7.210, Business & Commerce Code, and
13-45 their subsequent amendments. A person in possession of personal
13-46 property of the decedent received under an emergency intervention
13-47 order may enforce the landlord's or warehouseman's lien after the
13-48 90th day after the date the emergency intervention order is issued.
13-49 Sec. 535. TERMINATION. All power and authority of an
13-50 applicant under an emergency intervention order cease to be
13-51 effective or enforceable on the 90th day after the date the order
13-52 was issued or on the date a personal representative is qualified,
13-53 whichever occurs first.
13-54 SECTION 10. Sections 137 and 138, Texas Probate Code, are
13-55 repealed.
13-56 SECTION 11. The change in law made by this Act applies only
13-57 to the estate of a person who dies on or after the effective date
13-58 of this Act. An estate of a person who dies before the effective
13-59 date of this Act is covered by the law in effect on the date of the
13-60 person's death, and the former law continues in effect for that
13-61 purpose.
13-62 SECTION 12. This Act takes effect September 1, 1993.
13-63 SECTION 13. The importance of this legislation and the
13-64 crowded condition of the calendars in both houses create an
13-65 emergency and an imperative public necessity that the
13-66 constitutional rule requiring bills to be read on three several
13-67 days in each house be suspended, and this rule is hereby suspended.
13-68 * * * * *
13-69 Austin,
13-70 Texas
14-1 April 6, 1993
14-2 Hon. Bob Bullock
14-3 President of the Senate
14-4 Sir:
14-5 We, your Committee on Jurisprudence to which was referred S.B. No.
14-6 479, have had the same under consideration, and I am instructed to
14-7 report it back to the Senate with the recommendation that it do not
14-8 pass, but that the Committee Substitute adopted in lieu thereof do
14-9 pass and be printed.
14-10 Henderson,
14-11 Chairman
14-12 * * * * *
14-13 WITNESSES
14-14 FOR AGAINST ON
14-15 ___________________________________________________________________
14-16 Name: Oliver J. Guiberteau x
14-17 Representing: self
14-18 City: Houston
14-19 -------------------------------------------------------------------
14-20 Name: Helen B. Jenkins x
14-21 Representing: self
14-22 City: Missouri City
14-23 -------------------------------------------------------------------
14-24 FOR AGAINST ON
14-25 ___________________________________________________________________
14-26 Name: Harold Scherz x
14-27 Representing: Amer. Assoc. of Retired Pers
14-28 City: Austin
14-29 -------------------------------------------------------------------