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.