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.