1-1 AN ACT
1-2 relating to the administration of a decedent's estate.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Part 1, Chapter V, Texas Probate Code, is amended
1-5 by amending Section 89A and adding Sections 89B and 89C to read as
1-6 follows:
1-7 Sec. 89A. CONTENTS OF APPLICATION FOR PROBATE OF WILL AS
1-8 MUNIMENT OF TITLE. (a) A written will shall, if within the
1-9 control of the applicant, be filed with the application for probate
1-10 as a muniment of title, and shall remain in the custody of the
1-11 county clerk unless removed from the custody of the clerk by order
1-12 of a proper court. An application for probate of a will as a
1-13 muniment of title shall state:
1-14 (1) The name and domicile of each applicant.
1-15 (2) The name, age if known, and domicile of the
1-16 decedent, and the fact, time, and place of death.
1-17 (3) Facts showing that the court has venue.
1-18 (4) That the decedent owned real or personal property,
1-19 or both, describing the property generally, and stating its
1-20 probable value.
1-21 (5) The date of the will, the name and residence of
1-22 the executor named in the will, if any, and the names and
1-23 residences of the subscribing witnesses, if any.
1-24 (6) Whether a child or children born or adopted after
2-1 the making of such will survived the decedent, and the name of each
2-2 such survivor, if any.
2-3 (7) That there are no unpaid debts owing by the estate
2-4 of the testator, excluding debts secured by liens on real estate.
2-5 (8) Whether the decedent was ever divorced, and if so,
2-6 when and from whom.
2-7 (9) The social security number of the applicant and of
2-8 the decedent.
2-9 (10) Whether the state, a governmental agency of the
2-10 state, or a charitable organization is named by the will as a
2-11 devisee.
2-12 The foregoing matters shall be stated and averred in the
2-13 application to the extent that they are known to the applicant, or
2-14 can with reasonable diligence be ascertained by the applicant, and
2-15 if any of such matters is not stated or averred in the application,
2-16 the application shall set forth the reason why such matter is not
2-17 so stated and averred.
2-18 (b) When a written will cannot be produced in court, in
2-19 addition to the requirements of Subsection (a) of this section, the
2-20 application shall state:
2-21 (1) The reason why such will cannot be produced.
2-22 (2) The contents of such will, to the extent known.
2-23 (3) The date of such will and the executor appointed
2-24 in the will, if any, to the extent known.
2-25 (4) The name, age, marital status, and address, if
2-26 known, and the relationship to the decedent, if any, of each
2-27 devisee, and of each person who would inherit as an heir in the
3-1 absence of a valid will, and, in cases of partial intestacy, of
3-2 each heir.
3-3 (c) An application for probate of a nuncupative will as
3-4 muniment of title shall contain all applicable statements required
3-5 with respect to written wills in the foregoing subsections and
3-6 also:
3-7 (1) The substance of testamentary words spoken.
3-8 (2) The names and residences of the witnesses thereto.
3-9 Sec. 89B. PROOF REQUIRED FOR PROBATE OF A WILL AS A MUNIMENT
3-10 OF TITLE. (a) General Proof. Whenever an applicant seeks to
3-11 probate a will as a muniment of title, the applicant must first
3-12 prove to the satisfaction of the court:
3-13 (1) That the person is dead, and that four years have
3-14 not elapsed since the person's death and prior to the application;
3-15 and
3-16 (2) That the court has jurisdiction and venue over the
3-17 estate; and
3-18 (3) That citation has been served and returned in the
3-19 manner and for the length of time required by this Code; and
3-20 (4) That there are no unpaid debts owing by the estate
3-21 of the testator, excluding debts secured by liens on real estate.
3-22 (b) To obtain probate of a will as a muniment of title, the
3-23 applicant must also prove to the satisfaction of the court:
3-24 (1) If the will is not self-proved as provided by this
3-25 Code, that the testator, at the time of executing the will, was at
3-26 least 18 years of age, or was or had been lawfully married, or was
3-27 a member of the armed forces of the United States or of the
4-1 auxiliaries of the armed forces of the United States, or of the
4-2 Maritime Service of the United States, and was of sound mind; and
4-3 (2) If the will is not self-proved as provided by this
4-4 Code, that the testator executed the will with the formalities and
4-5 solemnities and under the circumstances required by law to make it
4-6 a valid will; and
4-7 (3) That such will was not revoked by the testator.
4-8 Sec. 89C. PROBATE OF WILLS AS MUNIMENTS OF TITLE. (a) In
4-9 each instance where the court is satisfied that a will should be
4-10 admitted to probate, and where the court is further satisfied that
4-11 there are no unpaid debts owing by the estate of the testator,
4-12 excluding debts secured by liens on real estate, or for other
4-13 reason finds that there is no necessity for administration upon
4-14 such estate, the court may admit such will to probate as a muniment
4-15 of title.
4-16 (b) If a person who is entitled to property under the
4-17 provisions of the will cannot be ascertained solely by reference to
4-18 the will or if a question of construction of the will exists, on
4-19 proper application and notice as provided by Chapter 37, Civil
4-20 Practice and Remedies Code, the court may hear evidence and include
4-21 in the order probating the will as a muniment of title a
4-22 declaratory judgment construing the will or determining those
4-23 persons who are entitled to receive property under the will and the
4-24 persons' shares or interests in the estate. The judgment is
4-25 conclusive in any suit between any person omitted from the judgment
4-26 and a bona fide purchaser for value who has purchased real or
4-27 personal property after entry of the judgment without actual notice
5-1 of the claim of the omitted person to an interest in the estate.
5-2 Any person who has delivered property of the decedent to a person
5-3 declared to be entitled to the property under the judgment or has
5-4 engaged in any other transaction with the person in good faith
5-5 after entry of the judgment is not liable to any person for actions
5-6 taken in reliance on the judgment.
5-7 (c) The order admitting a will to probate as a muniment of
5-8 title shall constitute sufficient legal authority to all persons
5-9 owing any money to the estate of the decedent, having custody of
5-10 any property, or acting as registrar or transfer agent of any
5-11 evidence of interest, indebtedness, property, or right belonging to
5-12 the estate, and to persons purchasing from or otherwise dealing
5-13 with the estate, for payment or transfer, without liability, to the
5-14 persons described in such will as entitled to receive the
5-15 particular asset without administration. The person or persons
5-16 entitled to property under the provisions of such wills shall be
5-17 entitled to deal with and treat the properties to which they are so
5-18 entitled in the same manner as if the record of title thereof were
5-19 vested in their names.
5-20 (d) Unless waived by the court, before the 181st day, or
5-21 such later day as may be extended by the court, after the date a
5-22 will is admitted to probate as a muniment of title, the applicant
5-23 for probate of the will shall file with the clerk of the court a
5-24 sworn affidavit stating specifically the terms of the will that
5-25 have been fulfilled and the terms of the will that have been
5-26 unfulfilled. Failure of the applicant for probate of the will to
5-27 file such affidavit shall not otherwise affect title to property
6-1 passing under the terms of the will.
6-2 SECTION 2. Section 131A(b), Texas Probate Code, is amended
6-3 to read as follows:
6-4 (b) Any person may file with the clerk of the court a
6-5 written application for the appointment of a temporary
6-6 administrator of a decedent's estate under this section. The
6-7 application must be verified and must include the information
6-8 required by Section 81 of this code if the decedent died testate or
6-9 Section 82 of this code if the decedent died intestate and an
6-10 affidavit that sets out:
6-11 (1) the name, address, and interest of the applicant;
6-12 (2) the facts showing an immediate necessity for the
6-13 appointment of a temporary administrator;
6-14 (3) the requested powers and duties of the temporary
6-15 administrator;
6-16 (4) a statement that the applicant is entitled to
6-17 letters of temporary administration and is not disqualified by law
6-18 from serving as a temporary administrator; and
6-19 (5) a description of the real and personal property
6-20 that the applicant believes to be in the decedent's estate.
6-21 SECTION 3. Section 137(a), Texas Probate Code, is amended to
6-22 read as follows:
6-23 (a) The distributees of the estate of a decedent who dies
6-24 intestate shall be entitled thereto, to the extent that the assets,
6-25 exclusive of homestead and exempt property, exceed the known
6-26 liabilities of said estate, exclusive of liabilities secured by
6-27 homestead and exempt property, without awaiting the appointment of
7-1 a personal representative when:
7-2 (1) No petition for the appointment of a personal
7-3 representative is pending or has been granted; and
7-4 (2) Thirty days have elapsed since the death of the
7-5 decedent; and
7-6 (3) The value of the entire assets of the estate, not
7-7 including homestead and exempt property, does not exceed $50,000;
7-8 and
7-9 (4) There is filed with the clerk of the court having
7-10 jurisdiction and venue an affidavit sworn to by two disinterested
7-11 witnesses, by all such distributees that have legal capacity, and,
7-12 if the facts warrant, by the natural guardian or next of kin of any
7-13 minor or the guardian of any other incapacitated person who is also
7-14 a distributee, which affidavit shall be examined by the judge of
7-15 the court having jurisdiction and venue; and
7-16 (5) The affidavit shows the existence of the foregoing
7-17 conditions and includes a list of all of the known assets and
7-18 liabilities of the estate, the names and addresses of the
7-19 distributees, and the relevant family history facts concerning
7-20 heirship that show the distributees' rights to receive the money or
7-21 property of the estate or to have such evidences of money,
7-22 property, or other rights of the estate as are found to exist
7-23 transferred to them as heirs or assignees; and
7-24 (6) The judge, in the judge's discretion, finds that
7-25 the affidavit conforms to the terms of this section and approves
7-26 the affidavit; and
7-27 (7) A copy of the affidavit, certified to by said
8-1 clerk, is furnished by the distributees of the estate to the person
8-2 or persons owing money to the estate, having custody or possession
8-3 of property of the estate, or acting as registrar, fiduciary or
8-4 transfer agent of or for evidences of interest, indebtedness,
8-5 property, or other right belonging to the estate.
8-6 SECTION 4. The heading to Section 320, Texas Probate Code,
8-7 is amended to read as follows:
8-8 Sec. 320. ORDER OF PAYMENT OF CLAIMS AND ALLOWANCES.
8-9 SECTION 5. Chapter XII, Texas Probate Code, as added by
8-10 Chapter 712, Acts of the 73rd Legislature, Regular Session, 1993,
8-11 is repealed.
8-12 SECTION 6. This Act takes effect September 1, 1997, and
8-13 applies only to the estate of a decedent who dies on or after that
8-14 date. The estate of a decedent who dies before the effective date
8-15 of this Act is governed by the law in effect at the time of the
8-16 decedent's death, and the former law is continued in effect for
8-17 that purpose.
8-18 SECTION 7. The importance of this legislation and the
8-19 crowded condition of the calendars in both houses create an
8-20 emergency and an imperative public necessity that the
8-21 constitutional rule requiring bills to be read on three several
8-22 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 2007 was passed by the House on April
25, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2007 was passed by the Senate on May
19, 1997, by the following vote: Yeas 31, Nays 0.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor