baa H.B. 2007 75(R)BILL ANALYSIS JUDICIAL AFFAIRS H.B. 2007 By: Thompson 4-16-97 Committee Report (Unamended) BACKGROUND In 1993, the Legislature added two Chapter XIIs to the Texas Probate Code. One of these Chapter XIIs, Informal Probate, was designed to simplify the procedure for probating a will for certain estates. Informal probate outlines a procedure to give individuals a way to probate smaller estates without the cost of employing an attorney specializing in probate matters. Since its enaction, the section has not been widely used by either individuals or attorneys, partly because of its complexity, and partly because of other alternatives in the Probate Code that also allow for less complicated probate procedures. Probating a will as a muniment of title is one way, if applicable, for an individual to save attorney's costs because there is no need of administration after the will is entered into probate. Whereas the Probate Code currently outlines the requirements of the application and order for those methods of probating a will that require administration, there are no similar detailed provisions to guide an individual in the requirements of probating a will as a muniment of title. The addition of sections to the Probate Code outlining the requirements of probating a will as a muniment of title should clarify to individuals that the sometimes expensive administration associated with letters testamentary is not always necessary. Under Section 131A of the Texas Probate Code, a court, upon proper application, can appoint a temporary administrator of a decedent's estate for a decedent who died without a will. Temporary administrations become necessary under various circumstances, such as when there are impending sales or foreclosures of the decedent's estate or when a decedent was the owner of a company that has to pay its employees. A temporary administration can take care of these matters until letters of administration can be issued. Under existing law, there is no similar allowance for a temporary administration of a decedent's estate when the decedent died with a will, even though the same needs for a temporary administration may exist. Allowing a court to appoint a temporary administration for the estates of decedents who died testate will be as useful a tool to preserve estates as it currently is for decedents who died intestate. Under existing law, heirs of a decedent who died without a will and with property valued at less than $50,000 can become entitled to the assets of the decedent upon filing an affidavit with the proper court. This small estates affidavit includes information listing the estate's assets and liabilities and the addresses of the distributees of the estate. Most courts also require the applicant to provide additional family information before they will sign the small estates affidavit. Amending the statute to require the affidavit to provide information about family history that indicates the heirs' rights to receive property will clarify to both pro se litigants and attorneys that this information needs to be given to the court and will help ensure that the court has sufficient information to approve the affidavit and allow the heirs the proper documents to collect the estate. PURPOSE The purpose of this bill is to provide for detailed procedures for the probate of a will as a muniment of title, similar to those procedures already existing for the issuance of letters testamentary and letters of administration. This bill also amends the requirements for other methods of probate by specifying the information necessary in applications for temporary administration of a decedent's estate and adding the requirement of information concerning family history to the small estates affidavit. This bill also repeals the "Informal Probate" chapter of the Texas Probate Code. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency or institution. SECTION BY SECTION ANALYSIS SECTION 1 amends Chapter V of the Texas Probate Code to add Sections 89A and 89B (and renumbering old 89A as 89C), providing for detailed instructions for the contents of the application and the proof required for the probate of a will as a muniment of title. SECTION 2 amends Section 131A(b) of the Texas Probate Code to require certain specific information required in Section 81 in an application for temporary administration of the estate of a decedent who died testate and to clarify that Section 82 requirements apply if the decedent died intestate. SECTION 3 amends Section 137 of the Texas Probate Code to provide that the small estates affidavit filed under Section 137 also include information describing the relevant family history facts concerning heirship. SECTION 4 amends the heading of Section 320 of the Texas Probate Code to reference the order of payment of allowances, currently also included within the section. SECTION 5 repeals the Chapter XII of the Texas Probate Code entitled "Informal Probate." SECTION 6. Effective date. Application of act. SECTION 7. Emergency clause.