By Talton H.B. No. 1522
74R981 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to agreements creating joint tenancies with rights of
1-3 survivorship in real property.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 46(b), Texas Probate Code, is amended to
1-6 read as follows:
1-7 (b) Subsection (a) does not apply to agreements between
1-8 spouses regarding their community property or agreements between
1-9 joint tenants regarding rights of survivorship in real property.
1-10 (c) Agreements between spouses regarding rights of
1-11 survivorship in community property are governed by Part 3 of
1-12 Chapter XI of this code. Agreements between joint tenants
1-13 regarding rights of survivorship in real property are governed by
1-14 Part 4 of Chapter XI of this code.
1-15 SECTION 2. Chapter XI, Texas Probate Code, is amended by
1-16 adding Part 4 to read as follows:
1-17 PART 4. REAL PROPERTY WITH JOINT TENANCY RIGHT OF SURVIVORSHIP
1-18 Sec. 465. RIGHT OF SURVIVORSHIP. If title to real property
1-19 is held by two or more persons in joint tenancy, the joint tenants
1-20 at any time may agree between themselves that all or part of the
1-21 real property becomes the property of the surviving joint tenants
1-22 on the death of a joint tenant.
1-23 Sec. 466. FORMALITIES. An agreement between co-owners of
1-24 real property in the form of joint tenancy creating a right of
2-1 survivorship in all or part of the real property must be in writing
2-2 and signed by all the joint tenants. If the written agreement is
2-3 signed by all of the joint tenants, the agreement is sufficient to
2-4 create a right of survivorship in the real property described in
2-5 the agreement if it includes any of the following phrases:
2-6 (1) "with right of survivorship";
2-7 (2) "will become the property of the surviving joint
2-8 tenants";
2-9 (3) "will vest in and belong to the surviving joint
2-10 tenants"; or
2-11 (4) "shall pass to the surviving joint tenants."
2-12 An agreement that otherwise meets the requirements of this part,
2-13 however, is effective without including any of those phrases.
2-14 Sec. 467. TRANSFERS NONTESTAMENTARY. A transfer at death
2-15 resulting from an agreement made in accordance with this part of
2-16 this code is effective because of the agreement involved and is not
2-17 a testamentary transfer. The transfer is not subject to the
2-18 provisions of this code applicable to testamentary transfers except
2-19 as otherwise expressly provided in this code.
2-20 Sec. 468. REVOCATION. An agreement between co-owners of
2-21 real property in the form of joint tenancy made in accordance with
2-22 this part of this code may be revoked in accordance with the terms
2-23 of the agreement. If the agreement does not provide a method for
2-24 revocation, the agreement may be revoked by a written instrument
2-25 signed by all the joint tenants or by a written instrument signed
2-26 by one joint tenant and delivered to the other joint tenants. The
2-27 agreement may be revoked with respect to specific real property
3-1 subject to the agreement by the disposition of the property by a
3-2 joint tenant if the disposition is not inconsistent with specific
3-3 terms of the agreement and applicable law.
3-4 Sec. 469. AGREEMENT EFFECTIVE WITHOUT ADJUDICATION; FILING.
3-5 (a) An agreement between co-owners of real property in the form of
3-6 joint tenancy creating a right of survivorship in the property that
3-7 satisfies the requirements of this part is effective and
3-8 enforceable without an adjudication.
3-9 (b) The agreement must be filed with the county clerk of
3-10 each county in which a part of the real property described in the
3-11 agreement is located.
3-12 Sec. 470. PROOF OF AGREEMENT; APPLICATION FOR ADJUDICATION.
3-13 (a) After the death of a co-owner of real property in the form of
3-14 joint tenancy who enters into an agreement with other co-owners of
3-15 the property creating a right of survivorship in all or part of the
3-16 real property that satisfies the requirements of this code, a
3-17 surviving joint tenant or the personal representative of a
3-18 surviving joint tenant may apply to the court for an order stating
3-19 that the agreement satisfies the requirements of this code and is
3-20 effective to create a right of survivorship in the real property
3-21 described in the agreement. The applicant shall file the original
3-22 agreement with the application for an adjudication. An application
3-23 for an adjudication under this section must include:
3-24 (1) the name and domicile of the surviving joint
3-25 tenants;
3-26 (2) the name and former domicile of the decedent joint
3-27 tenant and the fact, time, and place of death;
4-1 (3) facts establishing venue in the court; and
4-2 (4) the social security number of the decedent joint
4-3 tenant, if known.
4-4 (b) An applicant for an adjudication under this section must
4-5 prove to the satisfaction of the court that:
4-6 (1) the joint tenant whose real property interest is
4-7 at issue is dead;
4-8 (2) the court has jurisdiction and venue;
4-9 (3) the agreement was executed with the formalities
4-10 required by law;
4-11 (4) the agreement was not revoked; and
4-12 (5) citation has been served and returned in the
4-13 manner and for the length of time required by this code.
4-14 (c) The deceased joint tenant's signature to the agreement
4-15 may be proved by the sworn testimony of one witness taken in open
4-16 court, by the affidavit of one witness, or by the deposition of one
4-17 witness, either written or oral, taken in the same manner and under
4-18 the same rules as depositions in other civil actions. If a
4-19 surviving joint tenant is competent to make an oath, the surviving
4-20 joint tenant's signature to the agreement may be proved by the
4-21 sworn testimony of the surviving joint tenant taken in open court,
4-22 by the affidavit of the surviving joint tenant, or by the
4-23 deposition of the surviving joint tenant either written or oral,
4-24 taken in the same manner and under the same rules as depositions in
4-25 other civil actions. If the surviving joint tenant is not
4-26 competent to make an oath, the surviving joint tenant's signature
4-27 to the agreement may be proved in the manner provided above for the
5-1 proof of the deceased joint tenant's signature.
5-2 (d) An application for an adjudication under this section
5-3 must be filed in the county of proper venue for administration of
5-4 the deceased joint tenant's estate.
5-5 Sec. 471. ACTION OF COURT ON AGREEMENT. On completion of a
5-6 hearing on an application under Section 470 of this code, if the
5-7 court is satisfied that the requisite proof has been made, the
5-8 court shall enter an order stating that the agreement is valid. A
5-9 certified copy of the agreement and order may be recorded in other
5-10 counties and may be used in evidence, as the original might be, on
5-11 the trial of the same matter in any other court, on appeal or
5-12 otherwise.
5-13 Sec. 472. EFFECT OF ORDER. An order under Section 471 of
5-14 this code is sufficient authority to a person having custody of any
5-15 property or acting as registrar or transfer agent of any evidence
5-16 of interest, property, or right that is subject to the provisions
5-17 of the agreement, and to a person purchasing from or otherwise
5-18 dealing with a surviving joint tenant for transfer to the surviving
5-19 joint tenant, and the surviving joint tenant may enforce the
5-20 surviving joint tenant's right to the transfer.
5-21 Sec. 473. CUSTODY OF ADJUDICATED AGREEMENTS. An original
5-22 agreement creating a joint tenancy right of survivorship in real
5-23 property that has been adjudicated under Section 470 of this code
5-24 and the order adjudging it valid must be placed in the office of
5-25 the county clerk of the county in which it was adjudicated and
5-26 shall remain there, except during the time when the agreement was
5-27 removed for inspection to another place on order of the court where
6-1 the agreement was adjudicated. If the court orders an original
6-2 agreement to be removed to another place for inspection, the person
6-3 removing the original agreement shall give the county clerk a
6-4 receipt for the agreement's removal, and the county clerk shall
6-5 make and retain a copy of the original agreement.
6-6 Sec. 474. TERMINATION OF JOINT TENANCY INTEREST BY
6-7 AFFIDAVIT. (a) If title to real property is held by two or more
6-8 persons in joint tenancy with right of survivorship, a surviving
6-9 joint tenant or the personal representative, guardian, agent, or
6-10 attorney in fact of a surviving joint tenant may terminate the
6-11 interest of a deceased joint tenant in the real property by filing
6-12 with the county clerk of the county in which the real property is
6-13 located:
6-14 (1) a certified copy of the death certificate of the
6-15 joint tenant;
6-16 (2) a copy of the agreement creating a joint tenancy
6-17 right of survivorship in the real property;
6-18 (3) a sworn affidavit of the surviving joint tenant or
6-19 the personal representative, guardian, agent, or attorney in fact
6-20 of the surviving joint tenant that:
6-21 (A) describes the real property;
6-22 (B) states that the decedent named in the death
6-23 certificate is the same person as the deceased joint tenant named
6-24 in the agreement creating a joint tenancy right of survivorship in
6-25 the real property;
6-26 (C) states the date of death of the deceased
6-27 joint tenant; and
7-1 (D) states, if applicable, that the surviving
7-2 joint tenant making the affidavit or on whose behalf the affidavit
7-3 is made is the spouse of the deceased joint tenant; and
7-4 (4) a copy of the letters of administration, letters
7-5 testamentary, letters of guardianship, or power of attorney if the
7-6 personal representative, guardian, agent, or attorney in fact of
7-7 the surviving joint tenant files the affidavit.
7-8 (b) If the real property is held in joint tenancy other than
7-9 by two persons only who were husband and wife, the surviving joint
7-10 tenant who files to terminate the interest of a deceased joint
7-11 tenant under this section or the personal representative, guardian,
7-12 agent, or attorney in fact of the surviving joint tenant shall
7-13 file, in addition to the other documents required by this section,
7-14 a sworn affidavit of the personal representative of the deceased
7-15 joint tenant that no taxes are due under Chapter 211, Tax Code, or
7-16 that all taxes due under Chapter 211, Tax Code, have been paid.
7-17 (c) The county clerk shall record an affidavit the clerk
7-18 receives under Subsections (a)(3) and (b) of this section without
7-19 an acknowledgement.
7-20 (d) The filing of the documents required by Subsection (a)
7-21 of this section is conclusive evidence of the death of the joint
7-22 tenant and of the termination of the interest of the deceased joint
7-23 tenant in the real property described by the agreement creating a
7-24 joint tenancy right of survivorship in the real property. If the
7-25 personal representative of the deceased joint tenant does not file
7-26 the affidavit required by Subsection (b) of this section, the
7-27 property remains subject to a tax lien on behalf of the state to
8-1 secure the payment of any taxes due under Chapter 211, Tax Code.
8-2 The title of the real property is marketable unless otherwise
8-3 defective.
8-4 Sec. 475. PROTECTION OF PERSONS OR ENTITIES ACTING WITHOUT
8-5 KNOWLEDGE OF NOTICE. (a) If the personal representative of a
8-6 decedent's estate has no actual knowledge of the existence of an
8-7 agreement signed by the decedent creating a joint tenancy right of
8-8 survivorship in real property co-owned by the decedent in the form
8-9 of joint tenancy, the personal representative may not be liable to
8-10 a surviving joint tenant or a person claiming from the surviving
8-11 joint tenant for selling, exchanging, distributing, or otherwise
8-12 disposing of the real property or an interest in the real property
8-13 that is the subject of the agreement.
8-14 (b)(1) If a person or entity purchases real property from a
8-15 person claiming from a decedent more than six months after the date
8-16 of the decedent's death, for value, and without notice of the
8-17 existence of an agreement creating a joint tenancy right of
8-18 survivorship in the real property that is co-owned by the decedent
8-19 in the form of joint tenancy, the purchaser has good title to the
8-20 interest that the person claiming from the decedent would have had
8-21 in the absence of the agreement against the claim of a surviving
8-22 joint tenant or a person claiming from a surviving joint tenant.
8-23 (2) If a person or entity purchases real property from
8-24 the personal representative of a decedent's estate, for value, and
8-25 without notice of the existence of an agreement creating a joint
8-26 tenancy right of survivorship in the real property that is co-owned
8-27 by the decedent in the form of joint tenancy, the purchaser has
9-1 good title to the interest that the personal representative would
9-2 have had the power to convey in the absence of the agreement
9-3 against the claim of a surviving joint tenant or a person claiming
9-4 from a surviving joint tenant.
9-5 (c) If a person or entity purchases real property from a
9-6 decedent's surviving co-owner of the property in the form of joint
9-7 tenancy more than six months after the date of the decedent's
9-8 death, for value, the purchaser has good title to the interest that
9-9 the surviving co-owner would have had in the absence of a
9-10 revocation of the agreement against the claims of the personal
9-11 representative of the decedent's estate and a person claiming from
9-12 the decedent or the personal representative of the decedent's
9-13 estate if:
9-14 (1) an agreement purporting to create a joint tenancy
9-15 right of survivorship in the property in the decedent's surviving
9-16 co-owners purportedly signed by the decedent and the surviving
9-17 co-owners is received by the purchaser or the agreement is properly
9-18 recorded in a county in which a part of the property is located or
9-19 the purchaser has received an original or certified copy of the
9-20 agreement; and
9-21 (2) the purchaser has no notice that the agreement
9-22 described by Subdivision (1) of this subsection was revoked.
9-23 (d) If a person or entity having custody of real property or
9-24 acting as registrar or transfer agent of any evidence of interest,
9-25 property, or right that was owned by a decedent prior to death has
9-26 no actual knowledge of an agreement creating a joint tenancy right
9-27 of survivorship in the property, that person or entity may transfer
10-1 the property to the personal representative of the decedent's
10-2 estate or to the heirs, legatees, or devisees of the decedent's
10-3 estate if no administration is pending on the estate, and the
10-4 person or entity is discharged from all claims for property
10-5 transferred in that manner.
10-6 (e) If a person or entity having custody of real property or
10-7 acting as registrar or transfer agent of any evidence of interest,
10-8 property, or right that was owned by a decedent prior to death is
10-9 presented with the original or a certified copy of an agreement
10-10 creating a joint tenancy right of survivorship in the property,
10-11 purportedly signed by the decedent and the decedent's surviving
10-12 co-owners and if the person or entity has no actual knowledge that
10-13 the agreement was revoked, that person or entity may transfer the
10-14 property to the decedent's surviving co-owners and shall be
10-15 discharged from all claims for property transferred in that manner.
10-16 (f) In this section:
10-17 (1) a person or entity has "actual knowledge" of an
10-18 agreement creating a joint tenancy right of survivorship in real
10-19 property or of the revocation of the agreement only if the person
10-20 or entity has received written notice or has received the original
10-21 or a certified copy of the agreement or revoking instrument;
10-22 (2) a person or entity has "notice" of an agreement
10-23 creating a joint tenancy right of survivorship in real property or
10-24 the revocation of the agreement if the person or entity has actual
10-25 knowledge of the agreement or revocation or if the agreement or
10-26 revoking instrument is properly recorded in each county in which
10-27 the real property is located; and
11-1 (3) a "certified copy" is a copy of an official record
11-2 or of a document authorized by law to be recorded or filed and
11-3 actually recorded or filed in a public office, certified as correct
11-4 in accordance with Rule 902, Texas Rules of Civil Evidence.
11-5 (g) Except as otherwise expressly provided in this section,
11-6 the rights of a surviving co-owner or person claiming from the
11-7 surviving co-owner in a dispute with a person claiming from a
11-8 decedent or the successor of that person concerning a beneficial
11-9 interest in real property or the proceeds from that property,
11-10 subject to a joint tenancy right of survivorship under an agreement
11-11 that satisfies the requirements of this code.
11-12 SECTION 3. This Act takes effect September 1, 1995.
11-13 SECTION 4. The importance of this legislation and the
11-14 crowded condition of the calendars in both houses create an
11-15 emergency and an imperative public necessity that the
11-16 constitutional rule requiring bills to be read on three several
11-17 days in each house be suspended, and this rule is hereby suspended.