1-1 AN ACT
1-2 relating to the payment of claims by guardians and certain reports
1-3 and accounts submitted by guardians or personal representatives of
1-4 estates.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 399(a), Texas Probate Code, is amended to
1-7 read as follows:
1-8 (a) Estates of Decedents Being Administered Under Order of
1-9 Court. The personal representative of the estate of a decedent
1-10 being administered under order of court shall, upon the expiration
1-11 of twelve (12) months from the date of qualification and receipt of
1-12 letters, return to the court an exhibit in writing under oath
1-13 setting forth a list of all claims against the estate that were
1-14 presented to him within the period covered by the account,
1-15 specifying which have been allowed by him, which have been paid,
1-16 which have been rejected and the date when rejected, which have
1-17 been sued upon, and the condition of the suit, and show:
1-18 (1) All property that has come to his knowledge or
1-19 into his possession not previously listed or inventoried as
1-20 property of the estate.
1-21 (2) Any changes in the property of the estate which
1-22 have not been previously reported.
1-23 (3) A complete account of receipts and disbursements
1-24 for the period covered by the account, and the source and nature
2-1 thereof, with receipts of principal and income to be shown
2-2 separately.
2-3 (4) A complete, accurate and detailed description of
2-4 the property being administered, the condition of the property and
2-5 the use being made thereof, and, if rented, the terms upon and the
2-6 price for which rented.
2-7 (5) The cash balance on hand and the name and location
2-8 of the depository wherein such balance is kept; also, any other
2-9 sums of cash in savings accounts or other form, deposited subject
2-10 to court order, and the name and location of the depository
2-11 thereof.
2-12 (6) A detailed description of personal property of the
2-13 estate, which shall, with respect to bonds, notes, and other
2-14 securities, include the names of obligor and obligee, or if payable
2-15 to bearer, so state; the date of issue and maturity; the rate of
2-16 interest; serial or other identifying numbers; in what manner the
2-17 property is secured; and other data necessary to identify the same
2-18 fully, and how and where held for safekeeping.
2-19 (7) A statement that, during the period covered by the
2-20 account, all tax returns due have been filed and that all taxes due
2-21 and owing have been paid and a complete account of the amount of
2-22 the taxes, the date the taxes were paid, and the governmental
2-23 entity to which the taxes were paid.
2-24 (8) If any tax return due to be filed or any taxes due
2-25 to be paid are delinquent on the filing of the account, a
2-26 description of the delinquency and the reasons for the delinquency.
2-27 (9) A statement that the personal representative has
3-1 paid all the required bond premiums for the accounting period.
3-2 SECTION 2. Section 405, Texas Probate Code, as amended by
3-3 Chapters 712 and 957, Acts of the 73rd Legislature, Regular
3-4 Session, 1993, is amended to read as follows:
3-5 Sec. 405. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF
3-6 DECEDENTS [AND PERSONS AND ESTATES OF WARDS]. When administration
3-7 of the estate of a decedent[, or guardianship of person or estate,
3-8 or of the person and estate of a ward,] is to be settled and
3-9 closed, the personal representative of such estate [or of such
3-10 ward] shall present to the court his verified account for final
3-11 settlement. In such account it shall be sufficient to refer to the
3-12 inventory without describing each item of property in detail, and
3-13 to refer to and adopt any and all proceedings had in the
3-14 administration [or guardianship, as the case may be,] concerning
3-15 sales, renting or hiring, leasing for mineral development, or any
3-16 other transactions on behalf of the estate [or of the ward, as the
3-17 case may be,] including exhibits, accounts, and vouchers previously
3-18 filed and approved, without restating the particular items thereof.
3-19 Each final account, however, shall be accompanied by proper
3-20 vouchers in support of each item thereof not already accounted for
3-21 and shall show, either by reference to any proceedings authorized
3-22 above or by statement of the facts:
3-23 [(a) As to Estates of Decedents.]
3-24 1. The property belonging to the estate which has come
3-25 into the hands of the executor or administrator.
3-26 2. The disposition that has been made of such
3-27 property.
4-1 3. The debts that have been paid.
4-2 4. The debts and expenses, if any, still owing by the
4-3 estate.
4-4 5. The property of the estate, if any, still remaining
4-5 on hand.
4-6 6. The persons entitled to receive such estate, their
4-7 relationship to the decedent, and their residence, if known, and
4-8 whether adults or minors, and, if minors, the names of their
4-9 guardians, if any.
4-10 7. All advancements or payments that have been made,
4-11 if any, by the executor or administrator from such estate to any
4-12 such person.
4-13 8. The tax returns due that have been filed and the
4-14 taxes due and owing that have been paid and a complete account of
4-15 the amount of taxes, the date the taxes were paid, and the
4-16 governmental entity to which the taxes were paid.
4-17 9. If any tax return due to be filed or any taxes due
4-18 to be paid are delinquent on the filing of the account, a
4-19 description of the delinquency and the reasons for the delinquency.
4-20 10. The personal representative has paid all required
4-21 bond premiums.
4-22 [(b) As to Estates of Wards.]
4-23 [1. The property, rents, revenues, and profits
4-24 received by the guardian, and belonging to his ward, during his
4-25 guardianship.]
4-26 [2. The disposition made of such property, rents,
4-27 revenues, and profits.]
5-1 [3. The expenses and debts, if any, against the estate
5-2 remaining unpaid.]
5-3 [4. The tax returns due that have been filed and the
5-4 taxes due and owing that have been paid and a complete account of
5-5 the amount of taxes, the date the taxes were paid, and the
5-6 governmental entity to which the taxes were paid.]
5-7 [5. If any tax return due to be filed or any taxes due
5-8 to be paid are delinquent on the filing of the account of taxes
5-9 paid, a description of the delinquency and the reasons for the
5-10 delinquency.]
5-11 [6. The property of the estate remaining in the hands
5-12 of such guardian, if any.]
5-13 [7. Such other facts as appear necessary to a full and
5-14 definite understanding of the exact condition of the guardianship.]
5-15 SECTION 3. Section 743(b), Texas Probate Code, is amended to
5-16 read as follows:
5-17 (b) The guardian of the person, whether or not there is a
5-18 separate guardian of the estate, shall submit to the court an
5-19 annual report by sworn affidavit that contains the following
5-20 information:
5-21 (1) the guardian's current name, address, and phone
5-22 number;
5-23 (2) the ward's current:
5-24 (A) name, address, and phone number; and
5-25 (B) age and date of birth;
5-26 (3) the type of home in which the ward resides,
5-27 described as the ward's own; a nursing, guardian's, foster, or
6-1 boarding home; a relative's home, and the ward's relationship to
6-2 the relative; a hospital or medical facility; or other type of
6-3 residence;
6-4 (4) the length of time the ward has resided in the
6-5 present home and, if there has been a change in the ward's
6-6 residence in the past year, the reason for the change;
6-7 (5) the date the guardian most recently saw the ward,
6-8 and how frequently the guardian has seen the ward in the past year;
6-9 (6) a statement indicating whether or not the guardian
6-10 has possession or control of the ward's estate;
6-11 (7) the following statements concerning the ward's
6-12 health during the past year:
6-13 (A) whether the ward's mental health has
6-14 improved, deteriorated, or remained unchanged, and a description if
6-15 there has been a change; and
6-16 (B) whether the ward's physical health has
6-17 improved, deteriorated, or remained unchanged, and a description if
6-18 there has been a change;
6-19 (8) a statement concerning whether or not the ward has
6-20 regular medical care, and the ward's treatment or evaluation by any
6-21 of the following persons during the last year, including the name
6-22 of that person, and the treatment involved:
6-23 (A) a physician;
6-24 (B) a psychiatrist, psychologist, or other
6-25 mental health care provider;
6-26 (C) a dentist;
6-27 (D) a social or other caseworker; or
7-1 (E) another individual who provided treatment;
7-2 (9) a description of the ward's activities during the
7-3 past year, including recreational, educational, social, and
7-4 occupational activities, or if no activities are available or if
7-5 the ward is unable or has refused to participate in them, a
7-6 statement to that effect;
7-7 (10) the guardian's evaluation of the ward's living
7-8 arrangements as excellent, average, or below average, including an
7-9 explanation if the conditions are below average;
7-10 (11) the guardian's evaluation of whether the ward is
7-11 content or unhappy with the ward's living arrangements;
7-12 (12) the guardian's evaluation of unmet needs of the
7-13 ward;
7-14 (13) a statement of whether or not the guardian's
7-15 power should be increased, decreased, or unaltered, including an
7-16 explanation if a change is recommended;
7-17 (14) a statement that the guardian has paid the bond
7-18 premium for the next reporting period; and
7-19 (15) [(14)] any additional information the guardian
7-20 desires to share with the court regarding the ward.
7-21 SECTION 4. Section 749, Texas Probate Code, is amended to
7-22 read as follows:
7-23 Sec. 749. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS.
7-24 When a guardianship of the estate is settled and closed, the
7-25 guardian shall present to the court the guardian's verified account
7-26 for final settlement. In the account it shall be sufficient to
7-27 refer to the inventory without describing each item of property in
8-1 detail and to refer to and adopt any and all guardianship
8-2 proceedings that concern sales, renting or hiring, leasing for
8-3 mineral development, or any other transaction on behalf of the
8-4 guardianship estate, including an exhibit, account, or voucher
8-5 previously filed and approved, without restating the particular
8-6 items. Each final account shall be accompanied by proper vouchers
8-7 in support of each item not already accounted for and shall show,
8-8 either by reference to any proceedings authorized above or by
8-9 statement of the facts:
8-10 (1) the property, rents, revenues, and profits
8-11 received by the guardian, and belonging to the ward, during the
8-12 term of the guardianship;
8-13 (2) the disposition made of the property, rents,
8-14 revenues, and profits;
8-15 (3) the expenses and debts against the estate that
8-16 remain unpaid, if any;
8-17 (4) the property of the estate that remains in the
8-18 hands of the guardian, if any;
8-19 (5) that the guardian has paid all required bond
8-20 premiums;
8-21 (6) the tax returns the guardian has filed during the
8-22 guardianship;
8-23 (7) the amount of taxes the ward owed during the
8-24 guardianship that the guardian has paid;
8-25 (8) a complete account of the taxes the guardian has
8-26 paid during the guardianship, including the amount of the taxes,
8-27 the date the guardian paid the taxes, and the name of the
9-1 governmental entity to which the guardian paid the taxes;
9-2 (9) a description of all current delinquencies in the
9-3 filing of tax returns and the payment of taxes and a reason for
9-4 each delinquency; and
9-5 (10) [(5)] other facts as appear necessary to a full
9-6 and definite understanding of the exact condition of the
9-7 guardianship.
9-8 SECTION 5. Section 805, Texas Probate Code, is amended to
9-9 read as follows:
9-10 Sec. 805. ORDER OF PAYMENT OF CLAIMS. (a) The guardian
9-11 shall pay a claim against the estate of the guardian's ward that
9-12 has been allowed and approved or established by suit, as soon as
9-13 practicable, in the following order, except as provided by
9-14 Subsection (b) of this section:
9-15 (1) expenses for the care, maintenance, and education
9-16 of the ward or the ward's dependents;
9-17 (2) funeral expenses of the ward and expenses of the
9-18 ward's last illness, if the guardianship is kept open after the
9-19 death of the ward as provided under this chapter, except that any
9-20 claim against the estate of a ward that has been allowed and
9-21 approved or established by suit before the death of the ward shall
9-22 be paid before the funeral expenses and expenses of the last
9-23 illness;
9-24 (3) expenses of administration; and
9-25 (4) other claims against the ward or the ward's
9-26 estate.
9-27 (b) If the estate is insolvent, the guardian shall give
10-1 first priority to the payment of a claim relating to the
10-2 administration of the guardianship. The guardian shall pay other
10-3 claims against the ward's estate in the order prescribed by
10-4 Subsection (a) of this section.
10-5 (c) A claimant whose claim has not been paid may petition
10-6 the court for determination of the claim at any time before it is
10-7 barred by the applicable statute of limitations and on due proof
10-8 procure an order for its allowance and payment from the estate.
10-9 SECTION 6. A court may modify any guardianship in effect on
10-10 September 1, 1997, to conform with the requirements of Section 805,
10-11 Texas Probate Code, as amended by this Act, on the court's own
10-12 motion or on application by the ward, guardian, or any other
10-13 interested person or entity.
10-14 SECTION 7. The change in law made by Sections 1-4 of this
10-15 Act to the Texas Probate Code apply only to an account or report
10-16 filed on or after the effective date of this Act. An account or
10-17 report filed before the effective date of this Act is governed by
10-18 the law applicable on the date the account or report was filed, and
10-19 that law is continued in effect for that purpose.
10-20 SECTION 8. Except as provided by Section 6 of this Act:
10-21 (1) the change in law made by this Act to Section 805,
10-22 Texas Probate Code, applies only to proceedings for the appointment
10-23 of a guardian instituted on or after the effective date of this
10-24 Act; and
10-25 (2) a proceeding for the appointment of a guardian
10-26 that is instituted before the effective date of this Act is
10-27 governed by the law in effect on the date the proceedings were
11-1 instituted, and the former law is continued in effect for that
11-2 purpose.
11-3 SECTION 9. This Act takes effect September 1, 1997.
11-4 SECTION 10. The importance of this legislation and the
11-5 crowded condition of the calendars in both houses create an
11-6 emergency and an imperative public necessity that the
11-7 constitutional rule requiring bills to be read on three several
11-8 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. 2189 was passed by the House on May
7, 1997, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 2189 on May 29, 1997, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 2189 was passed by the Senate, with
amendments, on May 26, 1997, by the following vote: Yeas 31, Nays
0.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor