By Thompson H.B. No. 2003
75R5107 BEM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to emergency intervention proceedings concerning a
1-3 decedent's estate.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Part 2, Chapter XII, Texas Probate Code, as added
1-6 by Chapter 712, Acts of the 73rd Legislature, Regular Session,
1-7 1993, is transferred and redesignated as Part 3, Chapter V, Texas
1-8 Probate Code, and is renumbered and amended to read as follows:
1-9 PART 3 [2]. EMERGENCY INTERVENTION PROCEEDINGS;
1-10 FUNERAL AND BURIAL EXPENSES
1-11 Sec. 108 [520]. TIME TO FILE EMERGENCY APPLICATION. An
1-12 applicant may file an application requesting emergency intervention
1-13 by a court exercising probate jurisdiction to provide for the
1-14 payment of funeral and burial expenses or the protection and
1-15 storage of personal property owned by the decedent that was located
1-16 in rented accommodations on the date of the decedent's death with
1-17 the clerk of the court in the county of domicile of the decedent or
1-18 the county in which the rental accommodations that contain the
1-19 decedent's personal property are located. The application must be
1-20 filed not earlier than the third day after the date of the
1-21 decedent's death and not later than the 90th day after the date of
1-22 the decedent's death.
1-23 Sec. 109 [521]. ELIGIBLE APPLICANTS FOR EMERGENCY
1-24 INTERVENTION. A person qualified to serve as an administrator
2-1 under Section 77 of this code may file an emergency intervention
2-2 application.
2-3 Sec. 110 [521A]. REQUIREMENTS FOR EMERGENCY INTERVENTION.
2-4 An applicant may file an emergency application with the court under
2-5 Section 108 [520] of this code only if an application has not been
2-6 filed and is not pending under Section 81, 82, 137, or 145 of this
2-7 code and the applicant:
2-8 (1) needs to obtain funds for the funeral and burial
2-9 of the decedent; or
2-10 (2) needs to gain access to rental accommodations in
2-11 which the decedent's personal property is located and the applicant
2-12 has been denied access to those accommodations.
2-13 Sec. 111 [522]. CONTENTS OF EMERGENCY INTERVENTION
2-14 APPLICATION FOR FUNERAL AND BURIAL EXPENSES. (a) An application
2-15 for emergency intervention to obtain funds needed for a decedent's
2-16 funeral and burial expenses must be sworn and must contain:
2-17 (1) the name, address, social security number, and
2-18 interest of the applicant;
2-19 (2) the facts showing an immediate necessity for the
2-20 issuance of an emergency intervention order under this section by
2-21 the court;
2-22 (3) the date of the decedent's death, place of death,
2-23 decedent's residential address, and the name and address of the
2-24 funeral home holding the decedent's remains;
2-25 (4) any known or ascertainable heirs and devisees of
2-26 the decedent and the reason:
2-27 (A) the heirs and devisees cannot be contacted;
3-1 or
3-2 (B) the heirs and devisees have refused to
3-3 assist in the decedent's burial;
3-4 (5) a description of funeral and burial procedures
3-5 necessary and a statement from the funeral home that contains a
3-6 detailed and itemized description of the cost of the funeral and
3-7 burial procedures; and
3-8 (6) the name and address of an individual, entity, or
3-9 financial institution, including an employer, that is in possession
3-10 of any funds of or due to the decedent, and related account numbers
3-11 and balances, if known by the applicant.
3-12 (b) The application shall also state whether there are any
3-13 written instructions from the decedent relating to the type and
3-14 manner of funeral or burial the decedent would like to have. The
3-15 applicant shall attach the instructions, if available, to the
3-16 application and shall fully comply with the instructions. If
3-17 written instructions do not exist, the applicant may not permit the
3-18 decedent's remains to be cremated unless the applicant obtains the
3-19 court's permission to cremate the decedent's remains.
3-20 Sec. 112 [522A]. CONTENTS FOR EMERGENCY INTERVENTION
3-21 APPLICATION FOR ACCESS TO PERSONAL PROPERTY. An application for
3-22 emergency intervention to gain access to rental accommodations of a
3-23 decedent at the time of the decedent's death that contain the
3-24 decedent's personal property must be sworn and must contain:
3-25 (1) the name, address, social security number, and
3-26 interest of the applicant;
3-27 (2) the facts showing an immediate necessity for the
4-1 issuance of an emergency intervention order by the court;
4-2 (3) the date and place of the decedent's death, the
4-3 decedent's residential address, and the name and address of the
4-4 funeral home holding the decedent's remains;
4-5 (4) any known or ascertainable heirs and devisees of
4-6 the decedent and the reason:
4-7 (A) the heirs and devisees cannot be contacted;
4-8 or
4-9 (B) the heirs and devisees have refused to
4-10 assist in the protection of the decedent's personal property;
4-11 (5) the type and location of the decedent's personal
4-12 property and the name of the person in possession of the property;
4-13 and
4-14 (6) the name and address of the owner or manager of
4-15 the decedent's rental accommodations and whether access to the
4-16 accommodations is necessary.
4-17 Sec. 113 [523]. ORDERS OF EMERGENCY INTERVENTION. (a) If
4-18 the court determines on review of an application filed under
4-19 Section 108 [520] of this code that emergency intervention is
4-20 necessary to obtain funds needed for a decedent's funeral and
4-21 burial expenses, the court may order funds of the decedent held by
4-22 an employer, individual, or financial institution to be paid
4-23 directly to a funeral home only for reasonable and necessary
4-24 attorney's fees for the attorney who obtained the order granted
4-25 under this section, for court costs for obtaining the order, and
4-26 for funeral and burial expenses not to exceed $5,000 as ordered by
4-27 the court to provide the decedent with a reasonable, dignified, and
5-1 appropriate funeral and burial.
5-2 (b) If the court determines on review of an application
5-3 filed under Section 108 [520] of this code that emergency
5-4 intervention is necessary to gain access to accommodations rented
5-5 by the decedent at the time of the decedent's death that contain
5-6 the decedent's personal property, the court may order one or more
5-7 of the following:
5-8 (1) the owner or agent of the rental accommodations
5-9 shall grant the applicant access to the accommodations at a
5-10 reasonable time and in the presence of the owner or agent;
5-11 (2) the applicant and owner or agent of the rental
5-12 accommodations shall jointly prepare and file with the court a list
5-13 that generally describes the decedent's property found at the
5-14 premises;
5-15 (3) the applicant or the owner or agent of the rental
5-16 accommodations may remove and store the decedent's property at
5-17 another location until claimed by the decedent's heirs; [or]
5-18 (4) the applicant has only the powers that are
5-19 specifically stated in the order and that are necessary to protect
5-20 the decedent's property that is the subject of the application; or
5-21 (5) funds of the decedent held by an employer,
5-22 individual, or financial institution to be paid to the applicant
5-23 for reasonable and necessary attorney's fees and court costs for
5-24 obtaining the order.
5-25 (c) The court clerk may issue certified copies of an
5-26 emergency intervention order on request of the applicant only until
5-27 the 90th day after the date the order was signed or the date a
6-1 personal representative is qualified, whichever occurs first.
6-2 (d) A person who is furnished with a certified copy of an
6-3 emergency intervention order within the period described by
6-4 Subsection (c) of this section is not personally liable for the
6-5 person's actions that are taken in accordance with and in reliance
6-6 on the order.
6-7 Sec. 114 [524]. TERMINATION. (a) All power and authority
6-8 of an applicant under an emergency intervention order cease to be
6-9 effective or enforceable on the 90th day after the date the order
6-10 was issued or on the date a personal representative is qualified,
6-11 whichever occurs first.
6-12 (b) If a personal representative has not been appointed when
6-13 an emergency intervention order issued under Section 113(b)
6-14 [523(b)] of this code ceases to be effective, a person who is in
6-15 possession of the decedent's personal property that is the subject
6-16 of the order, without incurring civil liability, may:
6-17 (1) release the property to the decedent's heirs; or
6-18 (2) dispose of the property under Subchapter C,
6-19 Chapter 54, Property Code, or Section 7.209 or 7.210, Business &
6-20 Commerce Code.
6-21 Sec. 115 [525]. LIMITATION ON RIGHT OF SURVIVING SPOUSE TO
6-22 CONTROL DECEASED'S BURIAL OR CREMATION. (a) An application under
6-23 this section may be filed by:
6-24 (1) the executor of the deceased's will; or
6-25 (2) the next of kin of the deceased, the nearest in
6-26 order of descent first, and so on, and next of kin includes the
6-27 deceased's descendants who legally adopted the deceased or who have
7-1 been legally adopted by the deceased.
7-2 (b) An application under this section must be under oath and
7-3 must establish:
7-4 (1) whether the deceased died intestate or testate;
7-5 (2) the surviving spouse is alleged to be a principal
7-6 or accomplice in a wilful act which resulted in the death of the
7-7 deceased; and
7-8 (3) good cause exists to limit the right of the
7-9 surviving spouse to control the burial and interment or cremation
7-10 of the deceased spouse.
7-11 (c) After notice and hearing, without regard to whether the
7-12 deceased died intestate or testate, a court may limit the right of
7-13 a surviving spouse, whether or not the spouse has been designated
7-14 by the deceased's will as the executor of a deceased spouse's
7-15 estate, to control the burial and interment or cremation of the
7-16 deceased spouse if the court finds that there is good cause to
7-17 believe that the surviving spouse is the principal or an accomplice
7-18 in a wilful act which resulted in the death of the deceased spouse.
7-19 (d) If the court limits the surviving spouse's right of
7-20 control, as provided by Subsection (c), the court shall designate
7-21 and authorize a person to make burial or cremation arrangements.
7-22 SECTION 2. This Act takes effect September 1, 1997. The
7-23 changes in law made by this Act apply only to an application that
7-24 is filed on or after the effective date of this Act. An
7-25 application that is filed before the effective date of this Act is
7-26 governed by the law in effect at the time the application was
7-27 filed, and the former law is continued in effect for that purpose.
8-1 SECTION 3. The importance of this legislation and the
8-2 crowded condition of the calendars in both houses create an
8-3 emergency and an imperative public necessity that the
8-4 constitutional rule requiring bills to be read on three several
8-5 days in each house be suspended, and this rule is hereby suspended.