BILL ANALYSIS H.B. 2401 By: Thompson (Harris) Jurisprudence 5-17-95 Senate Committee Report (Unamended) BACKGROUND The Texas Academy of Probate Lawyers biennially reviews the state's probate and trust laws and makes recommendations to correct and clarify these laws. PURPOSE As proposed, H.B. 2401 clarifies existing provisions of the state's probate and trust laws, including setting forth requirements for an application for emergency intervention for funds for funeral services or interment or to gain access to rental accommodations of a decedent at the time of the decedent's death that contain the decedent's personal property and limitations on the rights of a surviving spouse to control a decedent's burial or cremation. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Sections 58(c) and (d), Probate Code, to provide that a devise of real property does not include any contents of personal property located on the real property, with an exception. Redefines "contents" and "titled personal property." SECTION 2. Amends Section 69(a), Probate Code, to include a testator whose marraige is annuled in the same requirements for a testator who is divorced. Requires, unless the will expressly provides otherwise, the provisions in favor of the testator's former spouse to be null and void. SECTION 3. Amends Section 137, Probate Code, as follows: Sec. 137. COLLECTION OF SMALL ESTATES UPON AFFIDAVIT. (a) Requires the distributees of the estate of a decedent who dies intestate to be entitled thereto, exclusive of liabilities secured by homestead and exempt property, without awaiting the appointment of a personal representative when an affidavit shows the existence of certain foregoing conditions, and the judge finds that the affidavit conforms to the terms of this sections and approves the affidavit, among other circumstances. Makes conforming changes. (b)-(c) Makes nonsubstantive changes. (d) Provides that if the judge approves the affidavit, the affidavit is to be recorded as an official public record under Chapter 194, Local Government Code. Makes nonsubstantive changes. SECTION 4. Amends Section 138, Probate Code, to make a nonsubstantive change. SECTION 5. Amends Section 151(a), Probate Code, to authorize the independent executor to file certain reports with the court when there is no pending litigation and other conditions are met. SECTION 6. Amends Section 520, Probate Code, to authorize an applicant to file an application requesting emergency intervention by a court exercising probate jurisdiction to provide for the protection and storage of personal property owned by the decedent in the county in which the rental accommodations that contain the property are located. Makes conforming changes. SECTION 7. Amends Part 2, Chapter XII, Probate Code, by adding Section 521A, as follows: Sec. 521A. REQUIREMENTS FOR EMERGENCY INTERVENTION. Authorizes an applicant to file an emergency application with the court only if an application has not been filed and is not pending under this code, and the applicant needs to obtain funds for the funeral and burial of the decedent or 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 8. Amends Section 522, Probate Code, as follows: Sec. 522. New heading: CONTENTS OF EMERGENCY INTERVENTION APPLICATION FOR FUNERAL AND BURIAL EXPENSES. (a) Sets forth the requirements for an application for emergency intervention, including a statement from the funeral home that contains a description of the funeral cost and burial procedures and the name and address of an entity in possession of any funds of or due to the decedent and related account numbers and balances, if known by the applicant. Deletes provisions relating to the defendant's property and rented premises. (b) Makes nonsubstantive changes. SECTION 9. Amends Part 2, Chapter XII, Probate Code, by adding Section 522A, as follows: Sec. 522A. CONTENTS FOR EMERGENCY INTERVENTION APPLICATION FOR ACCESS TO PERSONAL PROPERTY. Sets forth requirements for an application for emergency intervention to gain access to rental accommodations of a decedent at the time of the decedent's death that contain the decedent's personal property. SECTION 10. Amends Section 523, Probate Code, as follows: Sec. 523. ORDERS OF EMERGENCY INTERVENTION. (a) Authorizes the court to order funds of the decedent to be paid directly for a funeral home for attorney's fees for the attorney who obtained the emergency intervention order. Makes conforming changes. (b) Authorizes to court to order certain actions regarding the owner of rental accommodations if the court determines on review of an application that emergency intervention is necessary to gain accommodations rented by the decedent that contain the decedent's personal property. (c)-(d) Redesignate existing Subsections (b)-(c). Make conforming and nonsubstantive changes. SECTION 11. Amends Section 524, Probate Code, as follows: Sec. 524. TERMINATION. (a) Created from existing text. (b) Sets forth authorized actions that a person who is in possession of the decedent's personal property may take without incurring civil liability if a personal representative has not been appointed when an emergency order ceases to be effective. SECTION 12. Amends Part 2, Chapter XII, Probate Code, by adding Section 525, as follows: Sec. 525. LIMITATION ON RIGHT OF SURVIVING SPOUSE TO CONTROL DECEASED'S BURIAL OR CREMATION. (a) Authorizes an application under this section to be filed by the executor of the deceased's will or the next of kin of the deceased. (b) Requires an application to be under oath and to establish certain information regarding the surviving spouse. (c) Authorizes a court to limit the right of a surviving spouse to control the burial and interment or cremation of a deceased spouse if the court finds that the surviving spouse was involved in a wilful act which resulted in the death of the deceased spouse. (d) Requires the court to designate and authorize a person to make burial or cremation arrangements if the court limits the surviving spouse's right of control. SECTION 13. Amends Section 702(b), Probate Code, to provide that a bond is not required to be given by a guardian that is a guardianship program operated by a county with a population greater than 2.5 million. SECTION 14. Amends Section 111.004(7), Property Code, to redefine "interested person." SECTION 15. Amends Sections 113.111(a) and (b), Property Code, to require regularly recurring charges payable from income to the same extent and in the same manner that income is apportioned under Section 113.103 to be a charge made against income, rather than against principal. Makes conforming changes. SECTION 16. Effective date: September 1, 1995. SECTION 17. (a) Makes application of SECTIONS 1-11 of this Act prospective beginning September 1, 1995. (b) Makes application of SECTION 14 of this Act prospective. SECTION 18. Emergency clause.