1-1 By: Thompson (Senate Sponsor - Harris) H.B. No. 2007 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 12, 1997, reported favorably by the following 1-5 vote: Yeas 6, Nays 0; May 12, 1997, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the administration of a decedent's estate. 1-9 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-10 SECTION 1. Part 1, Chapter V, Texas Probate Code, is amended 1-11 by amending Section 89A and adding Sections 89B and 89C to read as 1-12 follows: 1-13 Sec. 89A. CONTENTS OF APPLICATION FOR PROBATE OF WILL AS 1-14 MUNIMENT OF TITLE. (a) A written will shall, if within the 1-15 control of the applicant, be filed with the application for probate 1-16 as a muniment of title, and shall remain in the custody of the 1-17 county clerk unless removed from the custody of the clerk by order 1-18 of a proper court. An application for probate of a will as a 1-19 muniment of title shall state: 1-20 (1) The name and domicile of each applicant. 1-21 (2) The name, age if known, and domicile of the 1-22 decedent, and the fact, time, and place of death. 1-23 (3) Facts showing that the court has venue. 1-24 (4) That the decedent owned real or personal property, 1-25 or both, describing the property generally, and stating its 1-26 probable value. 1-27 (5) The date of the will, the name and residence of 1-28 the executor named in the will, if any, and the names and 1-29 residences of the subscribing witnesses, if any. 1-30 (6) Whether a child or children born or adopted after 1-31 the making of such will survived the decedent, and the name of each 1-32 such survivor, if any. 1-33 (7) That there are no unpaid debts owing by the estate 1-34 of the testator, excluding debts secured by liens on real estate. 1-35 (8) Whether the decedent was ever divorced, and if so, 1-36 when and from whom. 1-37 (9) The social security number of the applicant and of 1-38 the decedent. 1-39 (10) Whether the state, a governmental agency of the 1-40 state, or a charitable organization is named by the will as a 1-41 devisee. 1-42 The foregoing matters shall be stated and averred in the 1-43 application to the extent that they are known to the applicant, or 1-44 can with reasonable diligence be ascertained by the applicant, and 1-45 if any of such matters is not stated or averred in the application, 1-46 the application shall set forth the reason why such matter is not 1-47 so stated and averred. 1-48 (b) When a written will cannot be produced in court, in 1-49 addition to the requirements of Subsection (a) of this section, the 1-50 application shall state: 1-51 (1) The reason why such will cannot be produced. 1-52 (2) The contents of such will, to the extent known. 1-53 (3) The date of such will and the executor appointed 1-54 in the will, if any, to the extent known. 1-55 (4) The name, age, marital status, and address, if 1-56 known, and the relationship to the decedent, if any, of each 1-57 devisee, and of each person who would inherit as an heir in the 1-58 absence of a valid will, and, in cases of partial intestacy, of 1-59 each heir. 1-60 (c) An application for probate of a nuncupative will as 1-61 muniment of title shall contain all applicable statements required 1-62 with respect to written wills in the foregoing subsections and 1-63 also: 1-64 (1) The substance of testamentary words spoken. 2-1 (2) The names and residences of the witnesses thereto. 2-2 Sec. 89B. PROOF REQUIRED FOR PROBATE OF A WILL AS A MUNIMENT 2-3 OF TITLE. (a) General Proof. Whenever an applicant seeks to 2-4 probate a will as a muniment of title, the applicant must first 2-5 prove to the satisfaction of the court: 2-6 (1) That the person is dead, and that four years have 2-7 not elapsed since the person's death and prior to the application; 2-8 and 2-9 (2) That the court has jurisdiction and venue over the 2-10 estate; and 2-11 (3) That citation has been served and returned in the 2-12 manner and for the length of time required by this Code; and 2-13 (4) That there are no unpaid debts owing by the estate 2-14 of the testator, excluding debts secured by liens on real estate. 2-15 (b) To obtain probate of a will as a muniment of title, the 2-16 applicant must also prove to the satisfaction of the court: 2-17 (1) If the will is not self-proved as provided by this 2-18 Code, that the testator, at the time of executing the will, was at 2-19 least 18 years of age, or was or had been lawfully married, or was 2-20 a member of the armed forces of the United States or of the 2-21 auxiliaries of the armed forces of the United States, or of the 2-22 Maritime Service of the United States, and was of sound mind; and 2-23 (2) If the will is not self-proved as provided by this 2-24 Code, that the testator executed the will with the formalities and 2-25 solemnities and under the circumstances required by law to make it 2-26 a valid will; and 2-27 (3) That such will was not revoked by the testator. 2-28 Sec. 89C. PROBATE OF WILLS AS MUNIMENTS OF TITLE. (a) In 2-29 each instance where the court is satisfied that a will should be 2-30 admitted to probate, and where the court is further satisfied that 2-31 there are no unpaid debts owing by the estate of the testator, 2-32 excluding debts secured by liens on real estate, or for other 2-33 reason finds that there is no necessity for administration upon 2-34 such estate, the court may admit such will to probate as a muniment 2-35 of title. 2-36 (b) If a person who is entitled to property under the 2-37 provisions of the will cannot be ascertained solely by reference to 2-38 the will or if a question of construction of the will exists, on 2-39 proper application and notice as provided by Chapter 37, Civil 2-40 Practice and Remedies Code, the court may hear evidence and include 2-41 in the order probating the will as a muniment of title a 2-42 declaratory judgment construing the will or determining those 2-43 persons who are entitled to receive property under the will and the 2-44 persons' shares or interests in the estate. The judgment is 2-45 conclusive in any suit between any person omitted from the judgment 2-46 and a bona fide purchaser for value who has purchased real or 2-47 personal property after entry of the judgment without actual notice 2-48 of the claim of the omitted person to an interest in the estate. 2-49 Any person who has delivered property of the decedent to a person 2-50 declared to be entitled to the property under the judgment or has 2-51 engaged in any other transaction with the person in good faith 2-52 after entry of the judgment is not liable to any person for actions 2-53 taken in reliance on the judgment. 2-54 (c) The order admitting a will to probate as a muniment of 2-55 title shall constitute sufficient legal authority to all persons 2-56 owing any money to the estate of the decedent, having custody of 2-57 any property, or acting as registrar or transfer agent of any 2-58 evidence of interest, indebtedness, property, or right belonging to 2-59 the estate, and to persons purchasing from or otherwise dealing 2-60 with the estate, for payment or transfer, without liability, to the 2-61 persons described in such will as entitled to receive the 2-62 particular asset without administration. The person or persons 2-63 entitled to property under the provisions of such wills shall be 2-64 entitled to deal with and treat the properties to which they are so 2-65 entitled in the same manner as if the record of title thereof were 2-66 vested in their names. 2-67 (d) Unless waived by the court, before the 181st day, or 2-68 such later day as may be extended by the court, after the date a 2-69 will is admitted to probate as a muniment of title, the applicant 3-1 for probate of the will shall file with the clerk of the court a 3-2 sworn affidavit stating specifically the terms of the will that 3-3 have been fulfilled and the terms of the will that have been 3-4 unfulfilled. Failure of the applicant for probate of the will to 3-5 file such affidavit shall not otherwise affect title to property 3-6 passing under the terms of the will. 3-7 SECTION 2. Section 131A(b), Texas Probate Code, is amended 3-8 to read as follows: 3-9 (b) Any person may file with the clerk of the court a 3-10 written application for the appointment of a temporary 3-11 administrator of a decedent's estate under this section. The 3-12 application must be verified and must include the information 3-13 required by Section 81 of this code if the decedent died testate or 3-14 Section 82 of this code if the decedent died intestate and an 3-15 affidavit that sets out: 3-16 (1) the name, address, and interest of the applicant; 3-17 (2) the facts showing an immediate necessity for the 3-18 appointment of a temporary administrator; 3-19 (3) the requested powers and duties of the temporary 3-20 administrator; 3-21 (4) a statement that the applicant is entitled to 3-22 letters of temporary administration and is not disqualified by law 3-23 from serving as a temporary administrator; and 3-24 (5) a description of the real and personal property 3-25 that the applicant believes to be in the decedent's estate. 3-26 SECTION 3. Section 137(a), Texas Probate Code, is amended to 3-27 read as follows: 3-28 (a) The distributees of the estate of a decedent who dies 3-29 intestate shall be entitled thereto, to the extent that the assets, 3-30 exclusive of homestead and exempt property, exceed the known 3-31 liabilities of said estate, exclusive of liabilities secured by 3-32 homestead and exempt property, without awaiting the appointment of 3-33 a personal representative when: 3-34 (1) No petition for the appointment of a personal 3-35 representative is pending or has been granted; and 3-36 (2) Thirty days have elapsed since the death of the 3-37 decedent; and 3-38 (3) The value of the entire assets of the estate, not 3-39 including homestead and exempt property, does not exceed $50,000; 3-40 and 3-41 (4) There is filed with the clerk of the court having 3-42 jurisdiction and venue an affidavit sworn to by two disinterested 3-43 witnesses, by all such distributees that have legal capacity, and, 3-44 if the facts warrant, by the natural guardian or next of kin of any 3-45 minor or the guardian of any other incapacitated person who is also 3-46 a distributee, which affidavit shall be examined by the judge of 3-47 the court having jurisdiction and venue; and 3-48 (5) The affidavit shows the existence of the foregoing 3-49 conditions and includes a list of all of the known assets and 3-50 liabilities of the estate, the names and addresses of the 3-51 distributees, and the relevant family history facts concerning 3-52 heirship that show the distributees' rights to receive the money or 3-53 property of the estate or to have such evidences of money, 3-54 property, or other rights of the estate as are found to exist 3-55 transferred to them as heirs or assignees; and 3-56 (6) The judge, in the judge's discretion, finds that 3-57 the affidavit conforms to the terms of this section and approves 3-58 the affidavit; and 3-59 (7) A copy of the affidavit, certified to by said 3-60 clerk, is furnished by the distributees of the estate to the person 3-61 or persons owing money to the estate, having custody or possession 3-62 of property of the estate, or acting as registrar, fiduciary or 3-63 transfer agent of or for evidences of interest, indebtedness, 3-64 property, or other right belonging to the estate. 3-65 SECTION 4. The heading to Section 320, Texas Probate Code, 3-66 is amended to read as follows: 3-67 Sec. 320. ORDER OF PAYMENT OF CLAIMS AND ALLOWANCES. 3-68 SECTION 5. Chapter XII, Texas Probate Code, as added by 3-69 Chapter 712, Acts of the 73rd Legislature, Regular Session, 1993, 4-1 is repealed. 4-2 SECTION 6. This Act takes effect September 1, 1997, and 4-3 applies only to the estate of a decedent who dies on or after that 4-4 date. The estate of a decedent who dies before the effective date 4-5 of this Act is governed by the law in effect at the time of the 4-6 decedent's death, and the former law is continued in effect for 4-7 that purpose. 4-8 SECTION 7. The importance of this legislation and the 4-9 crowded condition of the calendars in both houses create an 4-10 emergency and an imperative public necessity that the 4-11 constitutional rule requiring bills to be read on three several 4-12 days in each house be suspended, and this rule is hereby suspended. 4-13 * * * * *