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.