1-1 By: Thompson (Senate Sponsor - Harris) H.B. No. 2003
1-2 (In the Senate - Received from the House April 27, 1997;
1-3 April 29, 1997, read first time and referred to Committee on
1-4 Jurisprudence; May 6, 1997, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 6, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to emergency intervention proceedings concerning a
1-9 decedent's estate.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Part 2, Chapter XII, Texas Probate Code, as added
1-12 by Chapter 712, Acts of the 73rd Legislature, Regular Session,
1-13 1993, is transferred and redesignated as Part 3, Chapter V, Texas
1-14 Probate Code, and is renumbered and amended to read as follows:
1-15 PART 3 [2]. EMERGENCY INTERVENTION PROCEEDINGS;
1-16 FUNERAL AND BURIAL EXPENSES
1-17 Sec. 108 [520]. TIME TO FILE EMERGENCY APPLICATION. An
1-18 applicant may file an application requesting emergency intervention
1-19 by a court exercising probate jurisdiction to provide for the
1-20 payment of funeral and burial expenses or the protection and
1-21 storage of personal property owned by the decedent that was located
1-22 in rented accommodations on the date of the decedent's death with
1-23 the clerk of the court in the county of domicile of the decedent or
1-24 the county in which the rental accommodations that contain the
1-25 decedent's personal property are located. The application must be
1-26 filed not earlier than the third day after the date of the
1-27 decedent's death and not later than the 90th day after the date of
1-28 the decedent's death.
1-29 Sec. 109 [521]. ELIGIBLE APPLICANTS FOR EMERGENCY
1-30 INTERVENTION. A person qualified to serve as an administrator
1-31 under Section 77 of this code may file an emergency intervention
1-32 application.
1-33 Sec. 110 [521A]. REQUIREMENTS FOR EMERGENCY INTERVENTION.
1-34 An applicant may file an emergency application with the court under
1-35 Section 108 [520] of this code only if an application has not been
1-36 filed and is not pending under Section 81, 82, 137, or 145 of this
1-37 code and the applicant:
1-38 (1) needs to obtain funds for the funeral and burial
1-39 of the decedent; or
1-40 (2) needs to gain access to rental accommodations in
1-41 which the decedent's personal property is located and the applicant
1-42 has been denied access to those accommodations.
1-43 Sec. 111 [522]. CONTENTS OF EMERGENCY INTERVENTION
1-44 APPLICATION FOR FUNERAL AND BURIAL EXPENSES. (a) An application
1-45 for emergency intervention to obtain funds needed for a decedent's
1-46 funeral and burial expenses must be sworn and must contain:
1-47 (1) the name, address, social security number, and
1-48 interest of the applicant;
1-49 (2) the facts showing an immediate necessity for the
1-50 issuance of an emergency intervention order under this section by
1-51 the court;
1-52 (3) the date of the decedent's death, place of death,
1-53 decedent's residential address, and the name and address of the
1-54 funeral home holding the decedent's remains;
1-55 (4) any known or ascertainable heirs and devisees of
1-56 the decedent and the reason:
1-57 (A) the heirs and devisees cannot be contacted;
1-58 or
1-59 (B) the heirs and devisees have refused to
1-60 assist in the decedent's burial;
1-61 (5) a description of funeral and burial procedures
1-62 necessary and a statement from the funeral home that contains a
1-63 detailed and itemized description of the cost of the funeral and
1-64 burial procedures; and
2-1 (6) the name and address of an individual, entity, or
2-2 financial institution, including an employer, that is in possession
2-3 of any funds of or due to the decedent, and related account numbers
2-4 and balances, if known by the applicant.
2-5 (b) The application shall also state whether there are any
2-6 written instructions from the decedent relating to the type and
2-7 manner of funeral or burial the decedent would like to have. The
2-8 applicant shall attach the instructions, if available, to the
2-9 application and shall fully comply with the instructions. If
2-10 written instructions do not exist, the applicant may not permit the
2-11 decedent's remains to be cremated unless the applicant obtains the
2-12 court's permission to cremate the decedent's remains.
2-13 Sec. 112 [522A]. CONTENTS FOR EMERGENCY INTERVENTION
2-14 APPLICATION FOR ACCESS TO PERSONAL PROPERTY. An application for
2-15 emergency intervention to gain access to rental accommodations of a
2-16 decedent at the time of the decedent's death that contain the
2-17 decedent's personal property must be sworn and must contain:
2-18 (1) the name, address, social security number, and
2-19 interest of the applicant;
2-20 (2) the facts showing an immediate necessity for the
2-21 issuance of an emergency intervention order by the court;
2-22 (3) the date and place of the decedent's death, the
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;
2-28 or
2-29 (B) the heirs and devisees have refused to
2-30 assist in the protection of the decedent's personal property;
2-31 (5) the type and location of the decedent's personal
2-32 property and the name of the person in possession of the property;
2-33 and
2-34 (6) the name and address of the owner or manager of
2-35 the decedent's rental accommodations and whether access to the
2-36 accommodations is necessary.
2-37 Sec. 113 [523]. ORDERS OF EMERGENCY INTERVENTION. (a) If
2-38 the court determines on review of an application filed under
2-39 Section 108 [520] of this code that emergency intervention is
2-40 necessary to obtain funds needed for a decedent's funeral and
2-41 burial expenses, the court may order funds of the decedent held by
2-42 an employer, individual, or financial institution to be paid
2-43 directly to a funeral home only for reasonable and necessary
2-44 attorney's fees for the attorney who obtained the order granted
2-45 under this section, for court costs for obtaining the order, and
2-46 for funeral and burial expenses not to exceed $5,000 as ordered by
2-47 the court to provide the decedent with a reasonable, dignified, and
2-48 appropriate funeral and burial.
2-49 (b) If the court determines on review of an application
2-50 filed under Section 108 [520] of this code that emergency
2-51 intervention is necessary to gain access to accommodations rented
2-52 by the decedent at the time of the decedent's death that contain
2-53 the decedent's personal property, the court may order one or more
2-54 of the following:
2-55 (1) the owner or agent of the rental accommodations
2-56 shall grant the applicant access to the accommodations at a
2-57 reasonable time and in the presence of the owner or agent;
2-58 (2) the applicant and owner or agent of the rental
2-59 accommodations shall jointly prepare and file with the court a list
2-60 that generally describes the decedent's property found at the
2-61 premises;
2-62 (3) the applicant or the owner or agent of the rental
2-63 accommodations may remove and store the decedent's property at
2-64 another location until claimed by the decedent's heirs; [or]
2-65 (4) the applicant has only the powers that are
2-66 specifically stated in the order and that are necessary to protect
2-67 the decedent's property that is the subject of the application; or
2-68 (5) funds of the decedent held by an employer,
2-69 individual, or financial institution to be paid to the applicant
3-1 for reasonable and necessary attorney's fees and court costs for
3-2 obtaining the order.
3-3 (c) The court clerk may issue certified copies of an
3-4 emergency intervention order on request of the applicant only until
3-5 the 90th day after the date the order was signed or the date a
3-6 personal representative is qualified, whichever occurs first.
3-7 (d) A person who is furnished with a certified copy of an
3-8 emergency intervention order within the period described by
3-9 Subsection (c) of this section is not personally liable for the
3-10 person's actions that are taken in accordance with and in reliance
3-11 on the order.
3-12 Sec. 114 [524]. TERMINATION. (a) All power and authority
3-13 of an applicant under an emergency intervention order cease to be
3-14 effective or enforceable on the 90th day after the date the order
3-15 was issued or on the date a personal representative is qualified,
3-16 whichever occurs first.
3-17 (b) If a personal representative has not been appointed when
3-18 an emergency intervention order issued under Section 113(b)
3-19 [523(b)] of this code ceases to be effective, a person who is in
3-20 possession of the decedent's personal property that is the subject
3-21 of the order, without incurring civil liability, may:
3-22 (1) release the property to the decedent's heirs; or
3-23 (2) dispose of the property under Subchapter C,
3-24 Chapter 54, Property Code, or Section 7.209 or 7.210, Business &
3-25 Commerce Code.
3-26 Sec. 115 [525]. LIMITATION ON RIGHT OF SURVIVING SPOUSE TO
3-27 CONTROL DECEASED'S BURIAL OR CREMATION. (a) An application under
3-28 this section may be filed by:
3-29 (1) the executor of the deceased's will; or
3-30 (2) the next of kin of the deceased, the nearest in
3-31 order of descent first, and so on, and next of kin includes the
3-32 deceased's descendants who legally adopted the deceased or who have
3-33 been legally adopted by the deceased.
3-34 (b) An application under this section must be under oath and
3-35 must establish:
3-36 (1) whether the deceased died intestate or testate;
3-37 (2) the surviving spouse is alleged to be a principal
3-38 or accomplice in a wilful act which resulted in the death of the
3-39 deceased; and
3-40 (3) good cause exists to limit the right of the
3-41 surviving spouse to control the burial and interment or cremation
3-42 of the deceased spouse.
3-43 (c) After notice and hearing, without regard to whether the
3-44 deceased died intestate or testate, a court may limit the right of
3-45 a surviving spouse, whether or not the spouse has been designated
3-46 by the deceased's will as the executor of a deceased spouse's
3-47 estate, to control the burial and interment or cremation of the
3-48 deceased spouse if the court finds that there is good cause to
3-49 believe that the surviving spouse is the principal or an accomplice
3-50 in a wilful act which resulted in the death of the deceased spouse.
3-51 (d) If the court limits the surviving spouse's right of
3-52 control, as provided by Subsection (c), the court shall designate
3-53 and authorize a person to make burial or cremation arrangements.
3-54 SECTION 2. This Act takes effect September 1, 1997. The
3-55 changes in law made by this Act apply only to an application that
3-56 is filed on or after the effective date of this Act. An
3-57 application that is filed before the effective date of this Act is
3-58 governed by the law in effect at the time the application was
3-59 filed, and the former law is continued in effect for that purpose.
3-60 SECTION 3. The importance of this legislation and the
3-61 crowded condition of the calendars in both houses create an
3-62 emergency and an imperative public necessity that the
3-63 constitutional rule requiring bills to be read on three several
3-64 days in each house be suspended, and this rule is hereby suspended.
3-65 * * * * *