By Thompson H.B. No. 2009
75R4388 CLG-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the administration of decedents' estates.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 42(b)(1), Texas Probate Code, is amended
1-5 to read as follows:
1-6 (b) Paternal Inheritance. (1) For the purpose of
1-7 inheritance, a child is the child of his biological father if the
1-8 child is born under circumstances described by Section 151.002
1-9 [12.02], Family Code, is adjudicated to be the child of the father
1-10 by court decree as provided by Chapter 160 [13], Family Code, was
1-11 adopted by his father, or if the father executed a statement of
1-12 paternity as provided by Section 160.202 [13.22], Family Code, or a
1-13 like statement properly executed in another jurisdiction, so that
1-14 he and his issue shall inherit from his father and from his
1-15 paternal kindred, both descendants, ascendants, and collaterals in
1-16 all degrees, and they may inherit from him and his issue. A person
1-17 claiming to be a biological child of the decedent, who is not
1-18 otherwise presumed to be a child of the decedent, or claiming
1-19 inheritance through a biological child of the decedent, who is not
1-20 otherwise presumed to be a child of the decedent, may petition the
1-21 probate court for a determination of right of inheritance. If the
1-22 court finds by clear and convincing evidence that the purported
1-23 father was the biological father of the child, the child is treated
1-24 as any other child of the decedent for the purpose of inheritance
2-1 and he and his issue may inherit from his paternal kindred, both
2-2 descendants, ascendants, and collaterals in all degrees, and they
2-3 may inherit from him and his issue. This section does not permit
2-4 inheritance by a purported father of a child, whether recognized or
2-5 not, if the purported father's parental rights have been
2-6 terminated.
2-7 SECTION 2. Section 69(a), Texas Probate Code, is amended to
2-8 read as follows:
2-9 (a) If, after making a will, the testator is divorced or the
2-10 testator's marriage is annulled, all provisions in the will in
2-11 favor of the testator's former spouse, or appointing such spouse to
2-12 any fiduciary capacity under the will or with respect to the estate
2-13 or person of the testator's children, must be read as if the former
2-14 spouse failed to survive the testator, and shall be null and void
2-15 and of no effect unless the will expressly provides otherwise.
2-16 SECTION 3. Section 81(a), Texas Probate Code, is amended to
2-17 read as follows:
2-18 (a) For Probate of a Written Will. A written will shall, if
2-19 within the control of the applicant, be filed with the application
2-20 for its probate, and shall remain in the custody of the county
2-21 clerk unless removed therefrom by order of a proper court. An
2-22 application for probate of a written will shall state:
2-23 (1) The name and domicile of each applicant.
2-24 (2) The name, age if known, and domicile of the
2-25 decedent, and the fact, time, and place of death.
2-26 (3) Facts showing that the court has venue.
2-27 (4) That the decedent owned real or personal property,
3-1 or both, describing the same generally, and stating its probable
3-2 value.
3-3 (5) The date of the will, the name and residence of
3-4 the executor named therein, if any, and if none be named, then the
3-5 name and residence of the person to whom it is desired that letters
3-6 be issued, and also the names and residences of the subscribing
3-7 witnesses, if any.
3-8 (6) Whether a child or children born or adopted after
3-9 the making of such will survived the decedent, and the name of each
3-10 such survivor, if any.
3-11 (7) That such executor or applicant, or other person
3-12 to whom it is desired that letters be issued, is not disqualified
3-13 by law from accepting letters.
3-14 (8) Whether the decedent was ever divorced, and if so,
3-15 when and from whom.
3-16 (9) [The social security number of the applicant and
3-17 of the decedent.]
3-18 [(10)] Whether the state, a governmental agency of the
3-19 state, or a charitable organization is named by the will as a
3-20 devisee.
3-21 The foregoing matters shall be stated and averred in the
3-22 application to the extent that they are known to the applicant, or
3-23 can with reasonable diligence be ascertained by him, and if any of
3-24 such matters is not stated or averred in the application, the
3-25 application shall set forth the reason why such matter is not so
3-26 stated and averred.
3-27 SECTION 4. Section 82, Texas Probate Code, is amended to
4-1 read as follows:
4-2 Sec. 82. CONTENTS OF APPLICATION FOR LETTERS OF
4-3 ADMINISTRATION. An application for letters of administration when
4-4 no will, written or oral, is alleged to exist shall state:
4-5 (a) The name and domicile of the applicant,
4-6 relationship to the decedent, if any, and that the applicant is not
4-7 disqualified by law to act as administrator;
4-8 (b) The name and intestacy of the decedent, and the
4-9 fact, time and place of death;
4-10 (c) Facts necessary to show venue in the court to
4-11 which the application is made;
4-12 (d) Whether the decedent owned real or personal
4-13 property, with a statement of its probable value;
4-14 (e) The name, age, marital status and address, if
4-15 known, and the relationship, if any, of each heir to the decedent;
4-16 (f) If known by the applicant at the time of the
4-17 filing of the application, whether children were born to or adopted
4-18 by the decedent, with the name and the date and place of birth of
4-19 each;
4-20 (g) If known by the applicant at the time of the
4-21 filing of the application, whether the decedent was ever divorced,
4-22 and if so, when and from whom; and
4-23 (h) That a necessity exists for administration of the
4-24 estate, alleging the facts which show such necessity[; and]
4-25 [(i) The social security number of the applicant and
4-26 of the decedent if known].
4-27 SECTION 5. Section 146, Texas Probate Code, is amended by
5-1 amending Subsection (b) and adding Subsections (d) and (e) to read
5-2 as follows:
5-3 (b) Secured Claims for Money. Within six months after the
5-4 date letters are granted or within four months after the date
5-5 notice is received under Section 295, whichever is later, a
5-6 creditor with a claim for money secured by real or personal
5-7 property of the estate must give notice to [notify] the independent
5-8 executor [by certified or registered mail] of the creditor's
5-9 election to have the creditor's claim approved as a matured secured
5-10 claim to be paid in due course of administration. If the election
5-11 is not made, the claim is a preferred debt and lien against the
5-12 specific property securing the indebtedness and shall be paid
5-13 according to the terms of the contract that secured the lien, and
5-14 the claim may not be asserted against other assets of the estate.
5-15 The independent executor may pay the claim before the claim matures
5-16 if paying the claim before maturity is in the best interest of the
5-17 estate.
5-18 (d) Notice Required of Unsecured Creditor. An unsecured
5-19 creditor who has a claim for money against an estate and receives a
5-20 notice under Section 294(d) of this code shall give notice to the
5-21 independent executor of the nature and amount of the claim not
5-22 later than the 120th day after the date on which the notice is
5-23 received, or the claim is barred.
5-24 (e) Placement of Notice. Notice required by Subsections (b)
5-25 and (d) of this section must be contained in:
5-26 (1) a written instrument that is hand-delivered with
5-27 proof of receipt or mailed by certified mail, return receipt
6-1 requested, to the independent executor or the executor's attorney;
6-2 (2) a pleading filed in a lawsuit with respect to the
6-3 claim; or
6-4 (3) a written instrument or pleading filed in the
6-5 court in which the administration of the estate is pending.
6-6 SECTION 6. Section 234(a), Texas Probate Code, is amended to
6-7 read as follows:
6-8 (a) Powers To Be Exercised Under Order of the Court. The
6-9 personal representative of the estate of any person may, upon
6-10 application and order authorizing same, renew or extend any
6-11 obligation owing by or to such estate. When a personal
6-12 representative deems it for the interest of the estate, he may,
6-13 upon written application to the court, and by order granting
6-14 authority:
6-15 (1) Purchase or exchange property;
6-16 (2) Take claims or property for the use and benefit of
6-17 the estate in payment of any debt due or owing to the estate;
6-18 (3) Compound bad or doubtful debts due or owing to the
6-19 estate;
6-20 (4) Make compromises or settlements in relation to
6-21 property or claims in dispute or litigation;
6-22 (5) Compromise or pay in full any secured claim which
6-23 has been allowed and approved as required by law against the estate
6-24 by conveying to the holder of such claim the real estate or
6-25 personalty securing the same, in full payment, liquidation, and
6-26 satisfaction thereof, and in consideration of cancellation of
6-27 notes, deeds of trust, mortgages, chattel mortgages, or other
7-1 evidences of liens securing the payment of such claim;
7-2 (6) Abandon the administration of property of the
7-3 estate that is burdensome or worthless.
7-4 SECTION 7. Section 281, Texas Probate Code, is amended to
7-5 read as follows:
7-6 Sec. 281. EXEMPT PROPERTY LIABLE FOR CERTAIN DEBTS. The
7-7 exempt property, other than the homestead or any allowance made in
7-8 lieu thereof, shall be liable for the payment of Class 1 claims
7-9 [the funeral expenses and the expenses of last sickness of the
7-10 deceased, when claims are presented within the time prescribed
7-11 therefor], but such property shall not be liable for any other
7-12 debts of the estate.
7-13 SECTION 8. Section 290, Texas Probate Code, is amended to
7-14 read as follows:
7-15 Sec. 290. FAMILY ALLOWANCE PREFERRED. The family allowance
7-16 made for the support of the surviving spouse and minor children of
7-17 the deceased shall be paid in preference to all other debts or
7-18 charges against the estate, except Class 1 claims [expenses of the
7-19 funeral and last sickness of the deceased].
7-20 SECTION 9. Section 299, Texas Probate Code, is amended to
7-21 read as follows:
7-22 Sec. 299. TOLLING OF GENERAL STATUTES OF LIMITATION. The
7-23 general statutes of limitation are tolled on the date:
7-24 (1) a claim for money is filed or deposited with the
7-25 clerk
7-26 [(a) By filing a claim which is legally allowed and
7-27 approved]; or
8-1 (2) suit is brought against the personal
8-2 representative of an estate with respect to a claim of the estate
8-3 that is not required to be presented to the personal representative
8-4 [(b) By bringing a suit upon a rejected and
8-5 disapproved claim within ninety days after such rejection or
8-6 disapproval].
8-7 SECTION 10. Sections 306(c), (e), and (f), Texas Probate
8-8 Code, are amended to read as follows:
8-9 (c) Matured Secured Claims. If a claim has been allowed and
8-10 approved as a matured secured claim under Paragraph (1) of
8-11 Subsection (a) of this section, the claim shall be paid in due
8-12 course of administration and the secured creditor is not entitled
8-13 to exercise any other remedies in a manner that prevents the
8-14 preferential payment of claims [and allowances] described by
8-15 Paragraphs (1) and [through] (3) of Section 320(a) of this code.
8-16 (e) Payment of Maturities on Preferred Debt and Lien Claims.
8-17 If property securing a claim allowed, approved, and fixed under
8-18 Paragraph (2) of Subsection (a) hereof is not sold or distributed
8-19 within six months from the date letters are granted, the
8-20 representative of the estate shall promptly pay all maturities
8-21 which have accrued on the debt according to the terms thereof, and
8-22 shall perform all the terms of any contract securing same. If the
8-23 representative defaults in such payment or performance, on
8-24 application of the claimholder, the court shall:
8-25 (1) require the sale of said property subject to the
8-26 unmatured part of such debt and apply the proceeds of the sale to
8-27 the liquidation of the maturities;
9-1 (2) require the sale of the property free of the lien
9-2 and apply the proceeds to the payment of the whole debt; or
9-3 (3) authorize foreclosure by the claimholder as
9-4 prescribed by Subsections [under Subsection] (f) through (k) of
9-5 this section.
9-6 (f) Foreclosure of Preferred Liens. An application by a
9-7 claimholder [If the court authorizes a claimholder] to foreclose
9-8 the claimholder's lien or security interest on property securing a
9-9 claim that has been allowed and[,] approved or established by
9-10 suit[,] and fixed under Paragraph (2) of Subsection (a) of this
9-11 section must be[, the claimholder shall file with the court an
9-12 application] supported by affidavit of the claimholder that:
9-13 (1) describes the property or part of the property to
9-14 be sold by foreclosure;
9-15 (2) describes the amounts of the claimholder's
9-16 outstanding debt;
9-17 (3) describes the maturities that have accrued on the
9-18 debt according to the terms of the debt;
9-19 (4) describes any other debts secured by a mortgage,
9-20 lien, or security interest against the property that are known by
9-21 the claimholder;
9-22 (5) contains a statement that the claimholder has no
9-23 knowledge of the existence of any debts secured by the property
9-24 other than those described by the application; and
9-25 (6) requests permission for the claimholder to
9-26 foreclose the claimholder's mortgage, lien, or security interest.
9-27 SECTION 11. This Act takes effect September 1, 1997, and
10-1 applies only to the estate of a person who dies on or after that
10-2 date. An estate of a person who dies before the effective date of
10-3 this Act is governed by the law in effect on the date of the
10-4 person's death, and the former law is continued in effect for that
10-5 purpose.
10-6 SECTION 12. The importance of this legislation and the
10-7 crowded condition of the calendars in both houses create an
10-8 emergency and an imperative public necessity that the
10-9 constitutional rule requiring bills to be read on three several
10-10 days in each house be suspended, and this rule is hereby suspended.