By Thompson H.B. No. 1944
74R5134 CLG-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the informal probate of wills, distributions of small
1-3 estates, the emergency payment of burial expenses, and the
1-4 protection of a decedent's personal property.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Sections 137(a) and (c), Texas Probate Code, are
1-7 amended to read as follows:
1-8 (a) The distributees of the <an> estate of a decedent who
1-9 dies intestate shall be entitled thereto, to the extent that the
1-10 assets, exclusive of homestead and exempt property, exceed the
1-11 known liabilities of said estate, without awaiting the appointment
1-12 of a personal representative when:
1-13 (1) No petition for the appointment of a personal
1-14 representative is pending or has been granted; and
1-15 (2) Thirty days have elapsed since the death of the
1-16 decedent; and
1-17 (3) The value of the entire assets of the estate, not
1-18 including homestead and exempt property, does not exceed $50,000;
1-19 and
1-20 (4) There is filed with the clerk of the court having
1-21 jurisdiction and venue an affidavit sworn to by two disinterested
1-22 witnesses and by all <such> distributees that <as> have legal
1-23 capacity, and, if the facts warrant, by the natural guardian or
1-24 next of kin of any minor or incompetent who is also a distributee,
2-1 which affidavit shall be examined by the judge of the court having
2-2 jurisdiction and venue; the judge may find, in his discretion, that
2-3 the affidavit conforms to the terms of this section; if the judge
2-4 approves the affidavit, the affidavit is to be recorded as an
2-5 official public record under Chapter 194, Local Government Code, or
2-6 if the county has not adopted a microfilm or microphotographic
2-7 process under Chapter 194, Local Government Code, the affidavit
2-8 must be recorded in "Small Estates" records by the clerk, showing
2-9 the existence of the foregoing conditions, including a list of the
2-10 assets and liabilities of the estate, the names and addresses of
2-11 the distributees, and their right to receive the money or property
2-12 of the estate, or to have such evidences of money, property or
2-13 other rights of the estate as found to exist transferred to them,
2-14 being heirs<, devisees,> or assignees, and listing all assets and
2-15 known liabilities of the estates; and
2-16 (5) A copy of such affidavit, certified to by said
2-17 clerk, is furnished by the distributees of the estate to the person
2-18 or persons owing money to the estate, having custody or possession
2-19 of property of the estate, or acting as registrar, fiduciary or
2-20 transfer agent of or for evidences of interest, indebtedness,
2-21 property or other right belonging to said estate.
2-22 (c) Title to a decedent's homestead that is the only real
2-23 property in a decedent's estate may be transferred on an affidavit
2-24 that meets the requirements of this section. An affidavit that is
2-25 used to transfer title to a homestead under this section must be
2-26 recorded in the deed records of a county in which the homestead is
2-27 located. A purchaser for value may rely on a recorded affidavit
3-1 under this section. A bona fide purchaser for value without
3-2 actual or constructive notice of an heir who is not disclosed in a
3-3 recorded affidavit under this section acquires title to a homestead
3-4 free of the interests of the undisclosed heir, but the bona fide
3-5 purchaser remains subject to a claim a creditor of the decedent has
3-6 as provided by law. A person has constructive notice of the rights
3-7 of an heir who is not disclosed in a recorded affidavit under this
3-8 section if an affidavit, judgment of heirship, or title transaction
3-9 in the chain of title in the deed records states that the heir of
3-10 the decedent who is not disclosed in the affidavit is an heir of
3-11 the decedent. An heir who is not disclosed in a recorded
3-12 affidavit under this section may recover from an heir who receives
3-13 consideration in a transfer to a bona fide purchaser for value of
3-14 title to a homestead passing under the affidavit.
3-15 SECTION 2. Section 138, Texas Probate Code, is amended to
3-16 read as follows:
3-17 Sec. 138. EFFECT OF AFFIDAVIT. The person making payment,
3-18 delivery, transfer or issuance pursuant to the affidavit described
3-19 in the preceding Section shall be released to the same extent as
3-20 if made to a personal representative of the decedent, and <he>
3-21 shall not be required to see to the application thereof or to
3-22 inquire into the truth of any statement in the affidavit, but the
3-23 distributees to whom payment, delivery, transfer, or issuance is
3-24 made shall be answerable therefor to any person having a prior
3-25 right and be accountable to any personal representative thereafter
3-26 appointed. In addition, the person or persons who execute the
3-27 affidavit shall be liable for any damage or loss to any person
4-1 which arises from any payment, delivery, transfer, or issuance made
4-2 in reliance on such affidavit. If the person to whom such
4-3 affidavit is delivered refuses to pay, deliver, transfer, or issue
4-4 the property as above provided, such property may be recovered in
4-5 an action brought for such purpose by or on behalf of the
4-6 distributees entitled thereto, upon proof of the facts required to
4-7 be stated in the affidavit.
4-8 SECTION 3. Section 501(a), Texas Probate Code, is amended to
4-9 read as follows:
4-10 (a) An applicant may file an application for the informal
4-11 probate of a written will with the court clerk not earlier than
4-12 the 30th day after the date of the testator's death.
4-13 SECTION 4. Section 504, Texas Probate Code, is amended by
4-14 amending Subsection (a) and adding Subsections (c) and (d) to read
4-15 as follows:
4-16 (a) An application for informal probate of a will must be
4-17 under oath and must establish:
4-18 (1) that 30 days have elapsed after the date of the
4-19 testator's death;
4-20 (2) that all debts of the estate have been satisfied
4-21 or are properly secured or all creditors have received notice of
4-22 the application's filing;
4-23 (3) that the total gross fair market value of the
4-24 estate, including real and personal property but not including the
4-25 decedent's homestead or exempt property, did not exceed $50,000 on
4-26 the date the application was prepared;
4-27 (4) that the court has venue;
5-1 (5) to the applicant's knowledge and belief, that the
5-2 will being offered for informal probate has never been revoked; and
5-3 (6) to the applicant's knowledge and belief, that no
5-4 person named in the will has objected to the offer of the will for
5-5 informal probate.
5-6 (c) If the original will is not available, the application
5-7 must contain the information required by Section 81(b) of this
5-8 code, and the sworn statement or affidavit of a witness to the
5-9 execution of the will required by Section 85 of this code must be
5-10 attached to the application.
5-11 (d) If the original will is not self-proved, an affidavit of
5-12 a witness to the execution of the will must be attached to the
5-13 application if the witness is alive and the applicant knows the
5-14 witness's location. If every witness to the execution of the will
5-15 is deceased or the applicant does not know the location of any of
5-16 those witnesses, the sworn statement or affidavit of a
5-17 disinterested witness to the execution of the will that contains
5-18 the facts and other proof required by Section 84(b) of this code
5-19 and an affidavit of a disinterested person that contains the facts
5-20 and other proof required by Section 88(b) of this code must be
5-21 attached to the application.
5-22 SECTION 5. Section 505(a), Texas Probate Code, is amended to
5-23 read as follows:
5-24 (a) Before filing an application for informal probate, the
5-25 applicant shall give notice of the intent to file the application
5-26 by certified or registered mail to all persons named in the will
5-27 whose addresses are known or are reasonably ascertainable, <and to>
6-1 to the decedent's surviving spouse and children, and, if the will
6-2 is not self-proved, to the decedent's heirs and shall provide those
6-3 persons a copy of the will.
6-4 SECTION 6. Section 506(a), Texas Probate Code, is amended to
6-5 read as follows:
6-6 (a) With the application, the <The> applicant must file the
6-7 will or an affidavit of a disinterested person explaining the
6-8 will's absence to the court's satisfaction. The original will
6-9 remains in the custody of the court clerk unless removed by order
6-10 of a proper court.
6-11 SECTION 7. Section 507(a), Texas Probate Code, is amended to
6-12 read as follows:
6-13 (a) An executor, alternate, devisee, or legatee named in a
6-14 will may request in an application for the informal probate of the
6-15 will that the clerk of the probate court issue limited letters
6-16 testamentary to the applicant for the sole purpose of transferring
6-17 title to the assets or interests in the assets of the testator
6-18 <testator's estate>, including any increases to the assets that
6-19 accrued after the date of the testator's death and assets or
6-20 interests that have been <that are> specifically identified and
6-21 described in the inventory included in the application or any
6-22 subsequently filed amended or supplemental inventory.
6-23 SECTION 8. Sections 508(a) and (c), Texas Probate Code, are
6-24 amended to read as follows:
6-25 (a) The court in which an application for informal probate
6-26 has been filed shall determine whether:
6-27 (1) the application is complete;
7-1 (2) the applicant has acknowledged that all statements
7-2 of fact contained in the application are true and correct;
7-3 (3) the applicant is an executor, alternate, devisee,
7-4 or legatee named in the will;
7-5 (4) venue is correct;
7-6 (5) an original, duly executed will or the affidavit
7-7 required by Section 506 of this code is filed with the application;
7-8 (6) copies of required notices or waivers by persons
7-9 named in the will and the surviving spouse, children, and creditors
7-10 are attached to the application;
7-11 (7) an objection has not been made to the request for
7-12 informal probate by any creditor or person named in the will;
7-13 (8) the time for applying for an informal probate has
7-14 not expired;
7-15 (9) the application contains the required information;
7-16 and
7-17 (10) an appraiser is necessary to determine the value
7-18 of any asset.
7-19 (c) The court may probate a will that is a self-proved will
7-20 under Section 59 of this code without further proof. If the will
7-21 is not self-proving under Section 59 of this code, the court may,
7-22 in the absence of an objection, presume compliance with Section 59
7-23 of this code if the will is filed:
7-24 (1) with a sworn statement or affidavit of a witness
7-25 to the execution of the will, if the witness is alive and the
7-26 applicant knows the witness's location; or
7-27 (2) with a sworn statement or affidavit of a
8-1 disinterested witness to the execution of the will that contains
8-2 the facts and other proof required by Section 84(b) of this code
8-3 and an affidavit of a disinterested person that contains the facts
8-4 and other proof required by Section 88(b) of this code, if every
8-5 witness to the execution of the will is deceased or the applicant
8-6 does not know the location of any of those witnesses.
8-7 SECTION 9. Section 520, Texas Probate Code, is amended to
8-8 read as follows:
8-9 Sec. 520. TIME TO FILE EMERGENCY APPLICATION. An applicant
8-10 may file an application requesting emergency intervention by a
8-11 court exercising probate jurisdiction to provide for the payment of
8-12 funeral and burial expenses or the protection and storage of
8-13 personal property owned by the decedent that was located in rented
8-14 accommodations on the date of the decedent's death with the clerk
8-15 of the court in the county of domicile of the decedent or the
8-16 county in which the rental accommodations that contain the
8-17 decedent's personal property are located. The application must be
8-18 filed not earlier than the third day after the date of the
8-19 decedent's death and not later than the 90th day after the date of
8-20 the decedent's death.
8-21 SECTION 10. Part 2, Chapter XII, Texas Probate Code, is
8-22 amended by adding Section 521A to read as follows:
8-23 Sec. 521A. REQUIREMENTS FOR EMERGENCY INTERVENTION. An
8-24 applicant may file an emergency application with the court under
8-25 Section 520 of this code only if an application has not been filed
8-26 and is not pending under Section 81, 82, 137, or 145 of this code
8-27 and the applicant:
9-1 (1) needs to obtain funds for the funeral and burial
9-2 of the decedent; or
9-3 (2) needs to gain access to rental accommodations in
9-4 which the decedent's personal property is located and the applicant
9-5 has been denied access to those accommodations.
9-6 SECTION 11. Section 522, Texas Probate Code, is amended to
9-7 read as follows:
9-8 Sec. 522. CONTENTS OF <REQUIREMENTS FOR> EMERGENCY
9-9 INTERVENTION APPLICATION FOR FUNERAL AND BURIAL EXPENSES. (a) An
9-10 application for emergency intervention to obtain funds needed for a
9-11 decedent's funeral and burial expenses must be sworn and must
9-12 contain:
9-13 (1) the name, address, social security number, and
9-14 interest of the applicant;
9-15 (2) the facts showing an immediate necessity for the
9-16 issuance of an emergency intervention order under this section by
9-17 the court;
9-18 (3) the date of the decedent's death, place of death,
9-19 decedent's residential address, and the name and address of the
9-20 funeral home holding the decedent's remains;
9-21 (4) any known or ascertainable heirs and devisees of
9-22 the decedent and the reason:
9-23 (A) the heirs and devisees cannot be contacted;
9-24 or
9-25 (B) the heirs and devisees have refused to
9-26 assist in the decedent's burial <or protection of the decedent's
9-27 personal property>;
10-1 (5) a description of funeral and burial procedures
10-2 necessary and a statement from the funeral home that contains a
10-3 detailed and itemized description of the cost of the funeral and
10-4 burial procedures; and
10-5 (6) the name and address of an individual, entity, or
10-6 financial institution, including an employer, that is in possession
10-7 of any funds of or due to the decedent, and related account numbers
10-8 and balances, if known by the applicant <the name, location, and
10-9 identification of property or persons in possession of the
10-10 decedent's property; and>
10-11 <(7) the name and address of the owner or manager of
10-12 the decedent's rented premises and whether access to the premises
10-13 is necessary>.
10-14 (b) The <If emergency intervention is necessary for funeral
10-15 and burial, the> application shall also state whether there are any
10-16 written instructions from the decedent relating to the type and
10-17 manner of <a> funeral or burial the decedent would like to have
10-18 <exist>. The applicant shall attach the instructions, if
10-19 available, to the application and shall <or file the instructions
10-20 before the funeral or burial and> fully comply with the
10-21 instructions. If written instructions do not exist, the applicant
10-22 may not permit the decedent's remains to be cremated <shall provide
10-23 for the funeral and burial of the decedent> unless the applicant
10-24 obtains the court's permission to cremate the decedent's remains.
10-25 SECTION 12. Part 2, Chapter XII, Texas Probate Code, is
10-26 amended by adding Section 522A to read as follows:
10-27 Sec. 522A. CONTENTS FOR EMERGENCY INTERVENTION APPLICATION
11-1 FOR ACCESS TO PERSONAL PROPERTY. An application for emergency
11-2 intervention to gain access to rental accommodations of a decedent
11-3 at the time of the decedent's death that contain the decedent's
11-4 personal property must be sworn and must contain:
11-5 (1) the name, address, social security number, and
11-6 interest of the applicant;
11-7 (2) the facts showing an immediate necessity for the
11-8 issuance of an emergency intervention order by the court;
11-9 (3) the date and place of the decedent's death, the
11-10 decedent's residential address, and the name and address of the
11-11 funeral home holding the decedent's remains;
11-12 (4) any known or ascertainable heirs and devisees of
11-13 the decedent and the reason:
11-14 (A) the heirs and devisees cannot be contacted;
11-15 or
11-16 (B) the heirs and devisees have refused to
11-17 assist in the protection of the decedent's personal property;
11-18 (5) the type and location of the decedent's personal
11-19 property and the name of the person in possession of the property;
11-20 and
11-21 (6) the name and address of the owner or manager of
11-22 the decedent's rental accommodations and whether access to the
11-23 accommodations is necessary.
11-24 SECTION 13. Section 523, Texas Probate Code, is amended to
11-25 read as follows:
11-26 Sec. 523. ORDERS OF EMERGENCY INTERVENTION. (a) If the
11-27 court determines on review of an <the> application filed under
12-1 Section 520 of this code that emergency intervention is necessary
12-2 to obtain funds needed for a decedent's funeral and burial
12-3 expenses, the court may order funds of the decedent held by an
12-4 employer, individual, or financial institution to be paid directly
12-5 to a funeral home only for funeral and burial expenses not to
12-6 exceed $5,000 as ordered by the court to provide the decedent with
12-7 a reasonable, dignified, and appropriate funeral and burial.
12-8 (b) If the court determines on review of an application
12-9 filed under Section 520 of this code that emergency intervention is
12-10 necessary to gain access to accommodations rented by the decedent
12-11 at the time of the decedent's death that contain the decedent's
12-12 personal property, the court may order one or more of the
12-13 following:
12-14 (1) the owner or agent of the rental accommodations
12-15 shall grant the applicant access to the accommodations at a
12-16 reasonable time and in the presence of the owner or agent;
12-17 (2) the applicant and owner or agent of the rental
12-18 accommodations shall jointly prepare and file with the court a list
12-19 that generally describes the decedent's property found at the
12-20 premises;
12-21 (3) the applicant or the owner or agent of the rental
12-22 accommodations may remove and store the decedent's property at
12-23 another location until claimed by the decedent's heirs; or
12-24 (4) the applicant has only the powers that are
12-25 specifically stated in the order and that are necessary to protect
12-26 the decedent's property that is the subject of the application.
12-27 (c) The court clerk may issue certified copies of an
13-1 emergency intervention order on request of the applicant only until
13-2 the 90th day after the date the order was signed <issued> or the
13-3 date a personal representative is qualified, whichever occurs
13-4 first.
13-5 (d) <(c)> A person who is furnished with a certified copy of
13-6 an emergency intervention order within the period described by
13-7 Subsection (c) <(b)> of this section is not personally liable for
13-8 the person's actions that are taken in accordance with and in
13-9 reliance on the order.
13-10 SECTION 14. Section 524, Texas Probate Code, is amended to
13-11 read as follows:
13-12 Sec. 524. TERMINATION. (a) All power and authority of an
13-13 applicant under an emergency intervention order cease to be
13-14 effective or enforceable on the 90th day after the date the order
13-15 was issued or on the date a personal representative is qualified,
13-16 whichever occurs first.
13-17 (b) If a personal representative has not been appointed when
13-18 an emergency intervention order issued under Section 523(b) of this
13-19 code ceases to be effective, a person who is in possession of the
13-20 decedent's personal property that is the subject of the order,
13-21 without incurring civil liability, may:
13-22 (1) release the property to the decedent's heirs; or
13-23 (2) dispose of the property under Subchapter C,
13-24 Chapter 54, Property Code, or Section 7.209 or 7.210, Business &
13-25 Commerce Code.
13-26 SECTION 15. This Act takes effect September 1, 1995, and
13-27 applies only to the estates of decedents who die on or after that
14-1 date. The estates of decedents who die before the effective date
14-2 of this Act are governed by the law as it existed immediately
14-3 before the effective date of this Act, and that law is continued in
14-4 effect for that purpose.
14-5 SECTION 16. The importance of this legislation and the
14-6 crowded condition of the calendars in both houses create an
14-7 emergency and an imperative public necessity that the
14-8 constitutional rule requiring bills to be read on three several
14-9 days in each house be suspended, and this rule is hereby suspended.