74(R) HB 2401 House Committee Report

                          BILL ANALYSIS



C.S.H.B. 2401
By: Thompson
May 4, 1995
Committee Report (Substituted)


BACKGROUND

The Texas Academy of Probate Lawyers biennially review the state's
probate and trusts laws and make recommendations to correct and
clarify these laws.

PURPOSE

This bill makes minor corrective and clarifying changes in sections
58, 69, 137, 138, 151(a), 520, 523, and 524, Probate Code, and in
Section 113.11, Property Code. The bill also amends 522 and adds
522A to clarify procedure in certain emergency applications. This
bill also in section 368(b), Probate Code, expands the time a judge
has to make a decision involving an estate concerning mineral
rights.

RULEMAKING AUTHORITY

It is the opinion of this committee that this bill does not grant
any rulemaking authority to any state official, agency, department,
or institution.

SECTION-BY-SECTION ANALYSIS

     SECTION 1. Amends Section 58(c) and (d), Probate Code. This
Section was amended in the 1993 Legislative Session to clarify that
the bequest of a tangible item of real or personal property does
not also bequeath the personal property located in or on that item
(i.e., a bequest of the china cupboard does not include the china
and silver stored therein, unless expressly so stated).  Stock
certificates (which are intangible personal property) were
erroneously included in paragraph (d) (2), as an example of
tangible personal property.  This amendment corrects that error and
makes other minor clarifications.

     SECTION 2. Amends Section 69(a), Probate Code. Section 69(a)
of the Probate Code has the effect of automatically deleting any
bequests or fiduciary appointments in favor of a former spouse from
a will executed before the divorce.  This amendment revises Section
69(a) to include annulled marriages and to insert the phrase
"unless the will expressly provided otherwise" to allow a testator
to make a bequest or fiduciary appointment that will survive
divorce.

     SECTION 3. Amends Section 137, Texas Probate Code. Section
137, Probate Code, provide a means for the distribution of small
estates (under $50,000, exclusive of homestead and exempt property)
by affidavit without the appointment of an executor or
administrator.  As currently enacted, the calculation set forth in
Section 137 to determine if an estate will qualify for this
simplified procedure excludes the value of homestead and exempt
property but fails to also exclude liabilities secured thereby. 
Because the value of the homestead is excluded but any homestead
mortgage is included as a liability, this procedure is unavailable
to virtually any small estate with a homestead mortgage.  The
proposed amendment to paragraph (a) would correct the oversight by
also excluding liabilities secured by homestead and exempt property
from the qualifying calculation.  The other revisions to this
Section are not substantive changes to the law but are intended to
make otherwise very convoluted language more readily
understandable.

     SECTION 4. Amends Section 138, Texas Probate Code, to remove
an unnecessary gender specific pronoun.

     SECTION 5. Amends Section 151(a) Texas Probate Code, to
provide that an independent executor can not close an estate if
there is pending litigation.

     SECTION 6. Amends Section 368(b), Texas Probate Code, to
expand the time a judge has to make a decision involving an estate
concerning mineral rights.

     SECTION 7. Amends Section 520, Texas Probate Code, to provide
that an application for emergency intervention under this
subsection may be filed in the county in which the rental
accommodation that contain the decedents personal property are
located.

     SECTION 8. Amends Part 2, Chapter XII, Texas Probate Code, by
adding Section a to provide that an applicant may file an emergency
application under Section 520 of this code provided there is not
application filed and pending under Section 81, 82, 137, or 145 of
this code and the applicant needs to obtain funds for the burial of
the decedent or needs to gain access to rental accommodations in
which the decedent's personal property is located and the applicant
has been denied access to those accommodations.

     SECTION 9. Amends Section 522, Texas Probate Code, to make
this Section apply only to applications for emergency intervention
for funeral and burial expenses, makes conforming and clarification
changes.

     SECTION 10. Amends Part 2, Chapter XII, Texas Probate Code, by
adding Section 522A to specify what must be in an application for
emergency intervention to gain access to rental accommodations of
a decedent at the decedent's death that contain the decedent
personal property.

     SECTION 11. Amends Section 523, Texas Probate Code, to make
corrective and clarifying amendments.

     SECTION 12. Amends Section 524, Texas Probate Code, to make
corrective and clarifying amendments.

     SECTION 13. Section 702(b), Texas Probate Code, to provide
that a bond is not required by a guardian that is a guardianship
program operated by a county with a population of more than 2.5
million, according to the most recent decennial census.

     SECTION 14. Amends Section 113.11(a) and (b), Property Code.
Section 113.111 of the Trust Code sets forth the charges a trustee
shall make against income and the charges to be made against
principal.  The current paragraph (b) (7) relates to "regularly
recurring charges payable from income" but is placed in the
subparagraph dealing with charges against principal.  This
amendment moves the existing paragraph (b) (7) into its proper
position as paragraph (a) (8).

     SECTION 15. Effective Date.

     SECTION 16. Application of the Act.

     SECTION 17. Emergency Clause.

COMPARISON OF THE SUBSTITUTE TO THE ORIGINAL

The committee substitute is a legislative council redraft with
additional sections added. Sections 1 and 2 are the same in both
versions of the bill. Section 3 of the original bill has been moved
to Section 14 of the substitute. Section 4 of the original bill has
is now Sections 3 and 4 of the substitute. Sections 15, 16, and 17
of the substitute are the effective date, application of the act,
and emergency clause  which were inadvertently omitted from the
original bill. Sections 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the
substitute are new sections which were not in the original 

SUMMARY OF COMMITTEE ACTION

H.B. 2401 was considered by the Committee on Civil Practices during
a public hearing on April 26, 1995. The following individuals
testified in support of the bill: Alvin J. Golden, representing the
Texas Academy of Probate and Trust Lawyers. No one testified in
opposition to or neutrally on the bill. The committee considered a
complete substitute, which was adopted without objection. The bill
was left pending. H.B. 2401 was considered by the committee during
a formal meeting on May 1, 1995. H.B. 2401 was reported favorably
as substituted, with the recommendation that it do pass, be printed
and be sent to the committee on Local and Consent Calendars, by a
record vote of seven ayes, zero nays, zero pnv and two absent.