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.

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