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.