By Pitts                                         H.B. No. 427

      75R307 BEM-D                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the inventory, appraisement, and list of claims of an

 1-3     estate in probate.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 250, Texas Probate Code, is amended to

 1-6     read as follows:

 1-7           Sec. 250.  INVENTORY AND APPRAISEMENT.  (a)  Not later than

 1-8     the 150th day after the date the personal representative qualifies,

 1-9     a person interested in the estate may file an application with the

1-10     court requesting [Within ninety days after his qualification,

1-11     unless a longer time shall be granted by the court,] the

1-12     representative to [shall] file with the [clerk of] court a

1-13     verified, full and detailed inventory, in one written instrument,

1-14     of all the property of such estate which has come to his possession

1-15     or knowledge, which inventory shall include:

1-16                 (1) [(a)]  all real property of the estate situated in

1-17     the State of Texas;

1-18                 (2) [(b)]  all personal property of the estate wherever

1-19     situated.  The representative shall set out in the inventory his

1-20     appraisement of the fair market value of each item thereof as of

1-21     the date of death in the case of grant of letters testamentary or

1-22     of administration, as the case may be;  provided that if the court

1-23     shall appoint an appraiser or appraisers of the estate, the

1-24     representative shall determine the fair market value of each item

 2-1     of the inventory with the assistance of such appraiser or

 2-2     appraisers and shall set out in the inventory such appraisement.

 2-3     The inventory shall specify what portion of the property, if any,

 2-4     is separate property and what portion, if any, is community

 2-5     property.  If any property is owned in common with others, the

 2-6     interest owned by the estate shall be shown, together with the

 2-7     names and relationship, if known, of co-owners.  If the court

 2-8     grants an application filed under this section, such [Such]

 2-9     inventory shall be filed with the clerk of the court not later than

2-10     the 60th day after the date the application is granted and, when

2-11     approved by the  court and duly filed with the clerk of court,

2-12     shall constitute for all purposes the inventory and appraisement of

2-13     the estate referred to in this Code.

2-14           (b)  The court [for good cause shown] may require the

2-15     representative to file an initial [filing of the] inventory and

2-16     appraisement at any time during the administration of an estate if

2-17     the representative has not been required to file one [at a time

2-18     prior to ninety days after the qualification of the

2-19     representative].  The representative shall file the inventory and

2-20     appraisement not later than the 60th day after the date of the

2-21     order.

2-22           (c)  The court, for good cause shown, may require the filing

2-23     of the inventory and appraisement within a shorter period of time.

2-24           (d)  An inventory referenced in this Code, other than an

2-25     inventory required under Chapter 13 of this Code, is required only

2-26     if it is requested or ordered under Subsection (a) or (b) of this

2-27     section.

 3-1           SECTION 2.  Sections 145(b), (c), (d), (e), and (h), Texas

 3-2     Probate Code, are amended to read as follows:

 3-3           (b)  Any person capable of making a will may provide in his

 3-4     will that no other action shall be had in the county court in

 3-5     relation to the settlement of his estate than the probating and

 3-6     recording of his will, and the return of any required [an]

 3-7     inventory, appraisement, and list of claims of his estate.

 3-8           (c)  In situations where an executor is named in a decedent's

 3-9     will, but the will does not provide for independent administration

3-10     of the decedent's estate as provided in Subsection (b) of this

3-11     section, all of the distributees of the decedent may agree on the

3-12     advisability of having an independent administration and

3-13     collectively designate in the application for probate of the

3-14     decedent's will the executor named in the will to serve as

3-15     independent executor and request in the application that no other

3-16     action shall be had in the county court in relation to the

3-17     settlement of the decedent's estate other than the probating and

3-18     recording of the decedent's will, and the return of any required

3-19     [an] inventory, appraisement, and list of claims of the decedent's

3-20     estate.  In such case the county court shall enter an order

3-21     granting independent administration and appointing the person,

3-22     firm, or corporation designated in the application as independent

3-23     executor, unless the county court finds that it would not be in the

3-24     best interest of the estate to do so.

3-25           (d)  In situations where no executor is named in the

3-26     decedent's will, or in situations where each executor named in the

3-27     will is deceased or is disqualified to serve as executor or

 4-1     indicates by affidavit filed with the application for

 4-2     administration of the decedent's estate his inability or

 4-3     unwillingness to serve as executor, all of the distributees of the

 4-4     decedent may agree on the advisability of having an independent

 4-5     administration and collectively designate in the application for

 4-6     probate of the decedent's will a qualified person, firm, or

 4-7     corporation to serve as independent administrator and request in

 4-8     the application that no other action shall be had in the county

 4-9     court in relation to the settlement of the decedent's estate other

4-10     than the probating and recording of the decedent's will, and the

4-11     return of any required [an] inventory, appraisement, and list of

4-12     claims of the decedent's estate.  In such case the county court

4-13     shall enter an order granting independent administration and

4-14     appointing the person, firm, or corporation designated in the

4-15     application as independent administrator, unless the county court

4-16     finds that it would not be in the best interest of the estate to do

4-17     so.

4-18           (e)  All of the distributees of a decedent dying intestate

4-19     may agree on the advisability of having an independent

4-20     administration and collectively designate in the application for

4-21     administration of the decedent's estate a qualified person, firm,

4-22     or corporation to serve as independent administrator and request in

4-23     the application that no other action shall be had in the county

4-24     court in relation to the settlement of the decedent's estate other

4-25     than the return of any required [an] inventory, appraisement, and

4-26     list of claims of the decedent's estate.  In such case the county

4-27     court shall enter an order granting independent administration and

 5-1     appointing the person, firm, or corporation designated in the

 5-2     application as independent administrator, unless the county court

 5-3     finds that it would not be in the best interest of the estate to do

 5-4     so.

 5-5           (h)  When an independent administration has been created, and

 5-6     the order appointing an independent executor has been entered by

 5-7     the county court, and any required [the] inventory, appraisement,

 5-8     and list aforesaid has been filed by the executor and approved by

 5-9     the county court, as long as the estate is represented by an

5-10     independent executor, further action of any nature shall not be had

5-11     in the county court except where this Code specifically and

5-12     explicitly provides for some action in the county court.

5-13           SECTION 3.  Section 148, Texas Probate Code, is amended to

5-14     read as follows:

5-15           Sec. 148.  Requiring Heirs to Give Bond.  When an independent

5-16     administration is created and the order appointing an independent

5-17     executor is entered by the county court, any person having a debt

5-18     against such estate may, by written complaint filed in the county

5-19     court where such order was entered, cause all distributees of the

5-20     estate, heirs at law, and other persons entitled to any portion of

5-21     such estate under the will, if any, to be cited by personal service

5-22     to appear before such county court and execute a bond for an amount

5-23     equal to the amount of the creditor's claim or the full value of

5-24     such estate, [as shown by the inventory and list of claims,]

5-25     whichever is the smaller, such bond to be payable to the judge, and

5-26     his successors, and to be approved by said judge, and conditioned

5-27     that all obligors shall pay all debts that shall be established

 6-1     against such estate in the manner provided by law.  Upon the return

 6-2     of the citation served, unless such person so entitled to any

 6-3     portion of the estate, or some of them, or some other person for

 6-4     them, shall execute such bond to the satisfaction of the county

 6-5     court, such estate shall thereafter be administered and settled

 6-6     under the direction of the county court as other estates are

 6-7     required to be settled.  If the bond is executed and approved, the

 6-8     independent administration shall proceed.  Creditors of the estate

 6-9     may sue on such bond, and shall be entitled to judgment thereon for

6-10     the amount of their debt, or they may have their action against

6-11     those in possession of the estate.

6-12           SECTION 4.  Section 149C(a), Texas Probate Code, is amended

6-13     to read as follows:

6-14           (a)  The county court, a statutory probate court, a county

6-15     court at law with probate jurisdiction, or a district court of the

6-16     county, on its own motion or on motion of any interested person,

6-17     after the independent executor has been cited by personal service

6-18     to answer at a time and place fixed in the notice, may remove an

6-19     independent executor when:

6-20                 (1)  the independent executor fails to timely return

6-21     any required [within ninety days after qualification, unless such

6-22     time is extended by order of the court, an] inventory of the

6-23     property of the estate and list of claims that have come to his

6-24     knowledge;

6-25                 (2)  sufficient grounds appear to support belief that

6-26     he has misapplied or embezzled, or that he is about to misapply or

6-27     embezzle, all or any part of the property committed to his care;

 7-1                 (3)  he fails to make an accounting which is required

 7-2     by law to be made;

 7-3                 (4)  he fails to timely file the notice required by

 7-4     Section 128A of this code;

 7-5                 (5)  he is proved to have been guilty of gross

 7-6     misconduct or gross mismanagement in the performance of his duties;

 7-7     or

 7-8                 (6)  he becomes an incapacitated person, or is

 7-9     sentenced to the penitentiary, or from any other cause becomes

7-10     legally incapacitated from properly performing his fiduciary

7-11     duties.

7-12           SECTION 5.  Section 164, Texas Probate Code, is amended to

7-13     read as follows:

7-14           Sec. 164.  INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS.  If

7-15     an inventory and appraisement are required under Section 250 of

7-16     this code, the [The] surviving spouse, with the assistance of the

7-17     appraisers, if any be appointed, shall make out a full, fair, and

7-18     complete inventory, appraisement, and list of claims of the

7-19     community estate as in other administrations, shall attach thereto

7-20     a list of all indebtedness owing by said community estate to other

7-21     parties, giving the amount of each debt and the name of the party

7-22     or parties to whom it is owing, and his or their post-office

7-23     address, and shall return same to the court within 90 [ninety (90)]

7-24     days after the date of the order appointing appraisers, if any be

7-25     appointed, unless a longer time shall be granted by the court.  If

7-26     no appraisers be appointed, such return shall be made within 60

7-27     [ninety (90)] days after the date the inventory, appraisement, and

 8-1     list of claims are required [of the application for community

 8-2     administration], unless a longer time shall be granted by the

 8-3     court.  In either event, the court may, for good cause shown,

 8-4     require the filing of the inventory and appraisement within a

 8-5     shorter period of time.  Such inventory, list of claims, and list

 8-6     of indebtedness of such community estate shall be sworn to by said

 8-7     surviving spouse, and said inventory, appraisement, and list of

 8-8     claims owing said community estate shall be sworn to by said

 8-9     appraisers, if any appraisers have been appointed.

8-10           SECTION 6.  Section 165, Texas Probate Code, is amended to

8-11     read as follows:

8-12           Sec. 165.  BOND OF COMMUNITY ADMINISTRATOR.  The community

8-13     administrator shall at the time the inventory, appraisement, and

8-14     list of claims are returned or, if an inventory, appraisement, and

8-15     list of claims are not required, not later than the 90th day after

8-16     the date the administrator qualifies, present to the court a bond

8-17     with two or more good and sufficient sureties, payable to and to be

8-18     approved by the judge and his successors in a sum as is found by

8-19     the judge to be adequate under all the circumstances, or a bond

8-20     with one surety in a sum as is found by the judge to be adequate

8-21     under all the circumstances, if the surety is an authorized

8-22     corporate surety.  The condition of the bond shall be that such

8-23     surviving spouse will faithfully administer such community estate

8-24     and will, after the payment of debts with which such property is

8-25     properly chargeable, deliver to such person or persons as shall be

8-26     entitled to receive the same the portion of the community estate

8-27     devised or bequeathed to them under the terms of the will of the

 9-1     deceased spouse, or which passes to them under the laws of descent

 9-2     and distribution.  Either spouse may by will apportion community

 9-3     indebtedness as between the devisees and legatees of such testator

 9-4     and the surviving spouse, but this shall not include the power to

 9-5     charge the community share of the surviving spouse with more than

 9-6     the portion of the community debts for which it would otherwise be

 9-7     liable.

 9-8           SECTION 7.  Section 171, Texas Probate Code, is amended to

 9-9     read as follows:

9-10           Sec. 171.  CREDITOR MAY REQUIRE EXHIBIT.  Any creditor of the

9-11     community estate whose claim has not been paid in full, after the

9-12     lapse of one year from the filing of the inventory, appraisement,

9-13     and list of claims or, if an inventory, appraisement, and list of

9-14     claims have not been required, at any time after the first

9-15     anniversary of the date the administrator qualifies[, and bond by

9-16     the survivor], may by written application to the court cause such

9-17     survivor to be cited by personal service to appear and make an

9-18     exhibit to the court in writing and under oath, showing fully and

9-19     specifically:

9-20                 (a)  The debts that have been presented to him against

9-21     such community estate and their class; and

9-22                 (b)  The debts that have been paid by him and those

9-23     that remain unpaid, and the class of each; and

9-24                 (c)  The property that has been disposed of by him, and

9-25     the amount received therefor; and

9-26                 (d)  The property remaining on hand; and

9-27                 (e)  An account of losses, expenses, and commissions.

 10-1          SECTION 8.  Section 222(a)(1), Texas Probate Code, is amended

 10-2    to read as follows:

 10-3                (1)  The court, on its own motion or on motion of any

 10-4    interested person, and without notice, may remove any personal

 10-5    representative, appointed under provisions of this Code, who:

 10-6                      (A)  Neglects to qualify in the manner and time

 10-7    required by law;

 10-8                      (B)  Fails to timely return any required [within

 10-9    ninety days after qualification, unless such time is extended by

10-10    order of the court, an] inventory of the property of the estate and

10-11    list of claims that have come to his knowledge;

10-12                      (C)  Having been required to give a new bond,

10-13    fails to do so within the time prescribed;

10-14                      (D)  Absents himself from the State for a period

10-15    of three months at one time without permission of the court, or

10-16    removes from the State;

10-17                      (E)  Cannot be served with notices or other

10-18    processes by reason of the fact that his whereabouts are unknown,

10-19    or by reason of the fact that he is eluding service; or

10-20                      (F)  Has misapplied, embezzled, or removed from

10-21    the State, or is about to misapply, embezzle, or remove from the

10-22    State, all or any part of the property committed to the personal

10-23    representative's care.

10-24          SECTION 9.  Section 227, Texas Probate Code, is amended to

10-25    read as follows:

10-26          Sec. 227.  SUCCESSORS RETURN OF INVENTORY, APPRAISEMENT, AND

10-27    LIST OF CLAIMS.  An appointee who has been qualified to succeed to

 11-1    a prior personal representative shall make and return to the court

 11-2    an inventory, appraisement, and list of claims of the estate,

 11-3    within ninety days after being required to do so under Section 250

 11-4    of this Code [qualified], in like manner as is required of original

 11-5    appointees; and he shall also in like manner return additional

 11-6    inventories, appraisements, and lists of claims.  In all orders

 11-7    appointing successor representatives of estates, the court shall

 11-8    appoint appraisers as in original appointments upon the application

 11-9    of any person interested in the estate.

11-10          SECTION 10.  Section 262, Texas Probate Code, is amended to

11-11    read as follows:

11-12          Sec. 262.  EXECUTOR OR ADMINISTRATOR REQUIRED TO REPORT ON

11-13    CONDITION OF ESTATE.  At any time after the return of a required

11-14    inventory, appraisement, and list of claims of a deceased person

11-15    or, if an inventory, appraisement, and list of claims have not been

11-16    required, at any time after the 90th day after the date the

11-17    executor or administrator of the estate qualifies, any one entitled

11-18    to a  portion of the estate may, by a written complaint filed in

11-19    the court in which such case is pending, cause the executor or

11-20    administrator [of the estate] to be cited to appear and render

11-21    under oath an exhibit of the condition of the estate.

11-22          SECTION 11.  Section 271, Texas Probate Code, is amended to

11-23    read as follows:

11-24          Sec. 271.  EXEMPT PROPERTY TO BE SET APART.  (a)  Unless an

11-25    affidavit is filed under Subsection (b) of this section,

11-26    immediately after a required [the] inventory, appraisement, and

11-27    list of claims have been approved if an inventory, appraisement,

 12-1    and list of claims have not been required, immediately after the

 12-2    90th day after the date the personal representative qualifies, the

 12-3    court shall, by order,  set apart for the use and benefit of the

 12-4    surviving spouse and minor children and unmarried children

 12-5    remaining with the family of the deceased, all such property of the

 12-6    estate as is exempt from execution or forced sale by the

 12-7    constitution and laws of the state.

 12-8          (b)  Before the approval of a required [the] inventory,

 12-9    appraisement, and list of claims or, if an inventory, appraisement,

12-10    and list of claims have not been required, not later than the 90th

12-11    day after the date the personal representative qualifies, a

12-12    surviving spouse, any person who is authorized to act on behalf of

12-13    minor children of the deceased, or any unmarried children remaining

12-14    with the family of the deceased may apply to the court to have

12-15    exempt property set aside by filing an application and a verified

12-16    affidavit listing all of the property that the applicant claims is

12-17    exempt.  The applicant bears the burden of proof by a preponderance

12-18    of the evidence at any hearing on the application.  The court shall

12-19    set aside property of the decedent's estate that the court finds is

12-20    exempt.

12-21          SECTION 12.  Section 286, Texas Probate Code, is amended to

12-22    read as follows:

12-23          Sec. 286.  FAMILY ALLOWANCE TO SURVIVING SPOUSES AND MINORS.

12-24    (a)  Unless an affidavit is filed under Subsection (b) of this

12-25    section, immediately after a required [the] inventory,

12-26    appraisement, and list of claims have been approved or, if an

12-27    inventory, appraisement, and list of claims have not been required,

 13-1    immediately after the 90th day after the date the personal

 13-2    representative qualifies, the court shall fix a family allowance

 13-3    for the support of the surviving spouse and minor children of the

 13-4    deceased.

 13-5          (b)  Before the approval of a required [the] inventory,

 13-6    appraisement, and list of claims or, if an inventory, appraisement,

 13-7    and list of claims have not been required, not later than the 90th

 13-8    day after the date the personal representative qualifies, a

 13-9    surviving spouse or any person who is authorized to act on behalf

13-10    of minor children of the deceased may apply to the court to have

13-11    the court fix the family allowance by filing an application and a

13-12    verified affidavit describing the amount necessary for the

13-13    maintenance of the surviving spouse and minor children for one year

13-14    after the date of the death of the decedent and describing the

13-15    spouse's separate property and any property that minor children

13-16    have in their own right.  The applicant bears the burden of proof

13-17    by a preponderance of the evidence at any hearing on the

13-18    application.  The court shall fix a family allowance for the

13-19    support of the surviving spouse and minor children of the deceased.

13-20          SECTION 13.  Section 293, Texas Probate Code, is amended to

13-21    read as follows:

13-22          Sec. 293.  SALE TO RAISE FUNDS FOR FAMILY ALLOWANCE.  If

13-23    there be no personal property of the deceased that the surviving

13-24    spouse or guardian is willing to take for such allowance, or not a

13-25    sufficiency of them, and if there be no funds or not sufficient

13-26    funds in the hands of such executor or administrator to pay such

13-27    allowance, or any part thereof, then the court, as soon as a

 14-1    required [the] inventory, appraisement, and list of claims are

 14-2    returned and approved or, if an inventory, appraisement, and list

 14-3    of claims have not been required, immediately after the 90th day

 14-4    after the date the executor or administrator qualifies, shall order

 14-5    a sale of so much of the estate for cash as will be sufficient to

 14-6    raise the amount of such allowance, or a part thereof, as the case

 14-7    requires.

 14-8          SECTION 14.  Section 333(a), Texas Probate Code, is amended

 14-9    to read as follows:

14-10          (a)  The representative of an estate, after approval of a

14-11    required inventory and appraisement or, if an inventory and

14-12    appraisement have not been required, after the 90th day after the

14-13    date the personal representative qualifies, shall promptly apply

14-14    for an order of the court to sell at public auction or privately,

14-15    for cash or on credit not exceeding six months, all of the estate

14-16    that is liable to perish, waste, or deteriorate in value, or that

14-17    will be an expense or disadvantage to the estate if kept.  Property

14-18    exempt from forced sale, specific legacies, and personal property

14-19    necessary to carry on a farm, ranch, factory, or any other business

14-20    which it is thought best to operate, shall not be included in such

14-21    sales.

14-22          SECTION 15.  Section 385(a), Texas Probate Code, is amended

14-23    to read as follows:

14-24          (a)  Application for Partition.  When a husband or wife shall

14-25    die leaving any community property, the survivor may, at any time

14-26    after letters testamentary or of administration have been granted,

14-27    and any required [an] inventory, appraisement, and list of the

 15-1    claims of the estate have been returned, make application in

 15-2    writing to the court which granted such letters for a partition of

 15-3    such community property.

 15-4          SECTION 16.  Section 506(b), Texas Probate Code, as added by

 15-5    Chapter 712, Acts of the 73rd Legislature, Regular Session, 1993,

 15-6    is amended to read as follows:

 15-7          (b)  Not later than the 10th day after the date the

 15-8    application for informal probate is filed, an interested person may

 15-9    file an application with the court requesting that the [The]

15-10    applicant [shall] prepare a sworn, full, and complete inventory of

15-11    all assets required to be included in the testator's estate.  The

15-12    inventory [applicant] shall list all assets at the assets' fair

15-13    market value at or about the time the application was prepared

15-14    without reduction for any outstanding secured debts.  If the

15-15    valuation of an asset is questioned, the court may, on its own

15-16    motion or on request of an interested person, appoint an appraiser

15-17    for the asset and order that the applicant deposit the cost of the

15-18    appraisal in advance with the court clerk.  If the court grants an

15-19    application filed under this subsection, the inventory shall be

15-20    filed with the court not later than the 15th day after the date the

15-21    application is granted [The applicant shall file the inventory with

15-22    the application].  The inventory must:

15-23                (1)  contain the information required by Sections 250

15-24    and 251 of this code; and

15-25                (2)  if the testator is survived by a spouse, identify

15-26    the community assets and list the assets' one-half community value.

15-27          SECTION 17.  Section 507(a), Texas Probate Code, is amended

 16-1    to read as follows:

 16-2          (a)  An executor, alternate, devisee, or legatee named in a

 16-3    will may request in an application for the informal probate of the

 16-4    will that the clerk of the probate court issue limited letters

 16-5    testamentary to the applicant for the purpose of transferring title

 16-6    to the assets or interests in the assets of the testator's estate,

 16-7    including any increases to the assets that accrued after the date

 16-8    of the testator's death and, if any inventory has been filed, that

 16-9    are specifically identified and described in the inventory

16-10    [included in the application] or any subsequently filed amended or

16-11    supplemental inventory.

16-12          SECTION 18.  This Act takes effect September 1, 1997, and

16-13    applies only to the estate of a person who dies on or after that

16-14    date.  An estate of a person who dies before the effective date of

16-15    this Act is governed by the law in effect on the date of the

16-16    person's death, and the former law continues in effect for that

16-17    purpose.

16-18          SECTION 19.  The importance of this legislation and the

16-19    crowded condition of the calendars in both houses create an

16-20    emergency and an imperative public necessity that the

16-21    constitutional rule requiring bills to be read on three several

16-22    days in each house be suspended, and this rule is hereby suspended.