1-1 By: Naishtat (Senate Sponsor - Wentworth) H.B. No. 2189
1-2 (In the Senate - Received from the House May 8, 1997;
1-3 May 9, 1997, read first time and referred to Committee on
1-4 Jurisprudence; May 18, 1997, reported adversely, with favorable
1-5 Committee Substitute by the following vote: Yeas 7, Nays 0;
1-6 May 18, 1997, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 2189 By: Wentworth
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the payment of claims by guardians and certain reports
1-11 and accounts submitted by guardians or personal representatives of
1-12 estates.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 SECTION 1. Section 399(a), Texas Probate Code, is amended to
1-15 read as follows:
1-16 (a) Estates of Decedents Being Administered Under Order of
1-17 Court. The personal representative of the estate of a decedent
1-18 being administered under order of court shall, upon the expiration
1-19 of twelve (12) months from the date of qualification and receipt of
1-20 letters, return to the court an exhibit in writing under oath
1-21 setting forth a list of all claims against the estate that were
1-22 presented to him within the period covered by the account,
1-23 specifying which have been allowed by him, which have been paid,
1-24 which have been rejected and the date when rejected, which have
1-25 been sued upon, and the condition of the suit, and show:
1-26 (1) All property that has come to his knowledge or
1-27 into his possession not previously listed or inventoried as
1-28 property of the estate.
1-29 (2) Any changes in the property of the estate which
1-30 have not been previously reported.
1-31 (3) A complete account of receipts and disbursements
1-32 for the period covered by the account, and the source and nature
1-33 thereof, with receipts of principal and income to be shown
1-34 separately.
1-35 (4) A complete, accurate and detailed description of
1-36 the property being administered, the condition of the property and
1-37 the use being made thereof, and, if rented, the terms upon and the
1-38 price for which rented.
1-39 (5) The cash balance on hand and the name and location
1-40 of the depository wherein such balance is kept; also, any other
1-41 sums of cash in savings accounts or other form, deposited subject
1-42 to court order, and the name and location of the depository
1-43 thereof.
1-44 (6) A detailed description of personal property of the
1-45 estate, which shall, with respect to bonds, notes, and other
1-46 securities, include the names of obligor and obligee, or if payable
1-47 to bearer, so state; the date of issue and maturity; the rate of
1-48 interest; serial or other identifying numbers; in what manner the
1-49 property is secured; and other data necessary to identify the same
1-50 fully, and how and where held for safekeeping.
1-51 (7) A statement that, during the period covered by the
1-52 account, all tax returns due have been filed and that all taxes due
1-53 and owing have been paid and a complete account of the amount of
1-54 the taxes, the date the taxes were paid, and the governmental
1-55 entity to which the taxes were paid.
1-56 (8) If any tax return due to be filed or any taxes due
1-57 to be paid are delinquent on the filing of the account, a
1-58 description of the delinquency and the reasons for the delinquency.
1-59 (9) A statement that the personal representative has
1-60 paid all the required bond premiums for the accounting period.
1-61 SECTION 2. Section 405, Texas Probate Code, as amended by
1-62 Chapters 712 and 957, Acts of the 73rd Legislature, Regular
1-63 Session, 1993, is amended to read as follows:
1-64 Sec. 405. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF
2-1 DECEDENTS [AND PERSONS AND ESTATES OF WARDS]. When administration
2-2 of the estate of a decedent[, or guardianship of person or estate,
2-3 or of the person and estate of a ward,] is to be settled and
2-4 closed, the personal representative of such estate [or of such
2-5 ward] shall present to the court his verified account for final
2-6 settlement. In such account it shall be sufficient to refer to the
2-7 inventory without describing each item of property in detail, and
2-8 to refer to and adopt any and all proceedings had in the
2-9 administration [or guardianship, as the case may be,] concerning
2-10 sales, renting or hiring, leasing for mineral development, or any
2-11 other transactions on behalf of the estate [or of the ward, as the
2-12 case may be,] including exhibits, accounts, and vouchers previously
2-13 filed and approved, without restating the particular items thereof.
2-14 Each final account, however, shall be accompanied by proper
2-15 vouchers in support of each item thereof not already accounted for
2-16 and shall show, either by reference to any proceedings authorized
2-17 above or by statement of the facts:
2-18 [(a) As to Estates of Decedents.]
2-19 1. The property belonging to the estate which has come
2-20 into the hands of the executor or administrator.
2-21 2. The disposition that has been made of such
2-22 property.
2-23 3. The debts that have been paid.
2-24 4. The debts and expenses, if any, still owing by the
2-25 estate.
2-26 5. The property of the estate, if any, still remaining
2-27 on hand.
2-28 6. The persons entitled to receive such estate, their
2-29 relationship to the decedent, and their residence, if known, and
2-30 whether adults or minors, and, if minors, the names of their
2-31 guardians, if any.
2-32 7. All advancements or payments that have been made,
2-33 if any, by the executor or administrator from such estate to any
2-34 such person.
2-35 8. The tax returns due that have been filed and the
2-36 taxes due and owing that have been paid and a complete account of
2-37 the amount of taxes, the date the taxes were paid, and the
2-38 governmental entity to which the taxes were paid.
2-39 9. If any tax return due to be filed or any taxes due
2-40 to be paid are delinquent on the filing of the account, a
2-41 description of the delinquency and the reasons for the delinquency.
2-42 10. The personal representative has paid all required
2-43 bond premiums.
2-44 [(b) As to Estates of Wards.]
2-45 [1. The property, rents, revenues, and profits
2-46 received by the guardian, and belonging to his ward, during his
2-47 guardianship.]
2-48 [2. The disposition made of such property, rents,
2-49 revenues, and profits.]
2-50 [3. The expenses and debts, if any, against the estate
2-51 remaining unpaid.]
2-52 [4. The tax returns due that have been filed and the
2-53 taxes due and owing that have been paid and a complete account of
2-54 the amount of taxes, the date the taxes were paid, and the
2-55 governmental entity to which the taxes were paid.]
2-56 [5. If any tax return due to be filed or any taxes due
2-57 to be paid are delinquent on the filing of the account of taxes
2-58 paid, a description of the delinquency and the reasons for the
2-59 delinquency.]
2-60 [6. The property of the estate remaining in the hands
2-61 of such guardian, if any.]
2-62 [7. Such other facts as appear necessary to a full and
2-63 definite understanding of the exact condition of the guardianship.]
2-64 SECTION 3. Section 743(b), Texas Probate Code, is amended to
2-65 read as follows:
2-66 (b) The guardian of the person, whether or not there is a
2-67 separate guardian of the estate, shall submit to the court an
2-68 annual report by sworn affidavit that contains the following
2-69 information:
3-1 (1) the guardian's current name, address, and phone
3-2 number;
3-3 (2) the ward's current:
3-4 (A) name, address, and phone number; and
3-5 (B) age and date of birth;
3-6 (3) the type of home in which the ward resides,
3-7 described as the ward's own; a nursing, guardian's, foster, or
3-8 boarding home; a relative's home, and the ward's relationship to
3-9 the relative; a hospital or medical facility; or other type of
3-10 residence;
3-11 (4) the length of time the ward has resided in the
3-12 present home and, if there has been a change in the ward's
3-13 residence in the past year, the reason for the change;
3-14 (5) the date the guardian most recently saw the ward,
3-15 and how frequently the guardian has seen the ward in the past year;
3-16 (6) a statement indicating whether or not the guardian
3-17 has possession or control of the ward's estate;
3-18 (7) the following statements concerning the ward's
3-19 health during the past year:
3-20 (A) whether the ward's mental health has
3-21 improved, deteriorated, or remained unchanged, and a description if
3-22 there has been a change; and
3-23 (B) whether the ward's physical health has
3-24 improved, deteriorated, or remained unchanged, and a description if
3-25 there has been a change;
3-26 (8) a statement concerning whether or not the ward has
3-27 regular medical care, and the ward's treatment or evaluation by any
3-28 of the following persons during the last year, including the name
3-29 of that person, and the treatment involved:
3-30 (A) a physician;
3-31 (B) a psychiatrist, psychologist, or other
3-32 mental health care provider;
3-33 (C) a dentist;
3-34 (D) a social or other caseworker; or
3-35 (E) another individual who provided treatment;
3-36 (9) a description of the ward's activities during the
3-37 past year, including recreational, educational, social, and
3-38 occupational activities, or if no activities are available or if
3-39 the ward is unable or has refused to participate in them, a
3-40 statement to that effect;
3-41 (10) the guardian's evaluation of the ward's living
3-42 arrangements as excellent, average, or below average, including an
3-43 explanation if the conditions are below average;
3-44 (11) the guardian's evaluation of whether the ward is
3-45 content or unhappy with the ward's living arrangements;
3-46 (12) the guardian's evaluation of unmet needs of the
3-47 ward;
3-48 (13) a statement of whether or not the guardian's
3-49 power should be increased, decreased, or unaltered, including an
3-50 explanation if a change is recommended;
3-51 (14) a statement that the guardian has paid the bond
3-52 premium for the next reporting period; and
3-53 (15) [(14)] any additional information the guardian
3-54 desires to share with the court regarding the ward.
3-55 SECTION 4. Section 749, Texas Probate Code, is amended to
3-56 read as follows:
3-57 Sec. 749. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS.
3-58 When a guardianship of the estate is settled and closed, the
3-59 guardian shall present to the court the guardian's verified account
3-60 for final settlement. In the account it shall be sufficient to
3-61 refer to the inventory without describing each item of property in
3-62 detail and to refer to and adopt any and all guardianship
3-63 proceedings that concern sales, renting or hiring, leasing for
3-64 mineral development, or any other transaction on behalf of the
3-65 guardianship estate, including an exhibit, account, or voucher
3-66 previously filed and approved, without restating the particular
3-67 items. Each final account shall be accompanied by proper vouchers
3-68 in support of each item not already accounted for and shall show,
3-69 either by reference to any proceedings authorized above or by
4-1 statement of the facts:
4-2 (1) the property, rents, revenues, and profits
4-3 received by the guardian, and belonging to the ward, during the
4-4 term of the guardianship;
4-5 (2) the disposition made of the property, rents,
4-6 revenues, and profits;
4-7 (3) the expenses and debts against the estate that
4-8 remain unpaid, if any;
4-9 (4) the property of the estate that remains in the
4-10 hands of the guardian, if any;
4-11 (5) that the guardian has paid all required bond
4-12 premiums;
4-13 (6) the tax returns the guardian has filed during the
4-14 guardianship;
4-15 (7) the amount of taxes the ward owed during the
4-16 guardianship that the guardian has paid;
4-17 (8) a complete account of the taxes the guardian has
4-18 paid during the guardianship, including the amount of the taxes,
4-19 the date the guardian paid the taxes, and the name of the
4-20 governmental entity to which the guardian paid the taxes;
4-21 (9) a description of all current delinquencies in the
4-22 filing of tax returns and the payment of taxes and a reason for
4-23 each delinquency; and
4-24 (10) [(5)] other facts as appear necessary to a full
4-25 and definite understanding of the exact condition of the
4-26 guardianship.
4-27 SECTION 5. Section 805, Texas Probate Code, is amended to
4-28 read as follows:
4-29 Sec. 805. ORDER OF PAYMENT OF CLAIMS. (a) The guardian
4-30 shall pay a claim against the estate of the guardian's ward that
4-31 has been allowed and approved or established by suit, as soon as
4-32 practicable, in the following order, except as provided by
4-33 Subsection (b) of this section:
4-34 (1) expenses for the care, maintenance, and education
4-35 of the ward or the ward's dependents;
4-36 (2) funeral expenses of the ward and expenses of the
4-37 ward's last illness, if the guardianship is kept open after the
4-38 death of the ward as provided under this chapter, except that any
4-39 claim against the estate of a ward that has been allowed and
4-40 approved or established by suit before the death of the ward shall
4-41 be paid before the funeral expenses and expenses of the last
4-42 illness;
4-43 (3) expenses of administration; and
4-44 (4) other claims against the ward or the ward's
4-45 estate.
4-46 (b) If the estate is insolvent, the guardian shall give
4-47 first priority to the payment of a claim relating to the
4-48 administration of the guardianship. The guardian shall pay other
4-49 claims against the ward's estate in the order prescribed by
4-50 Subsection (a) of this section.
4-51 (c) A claimant whose claim has not been paid may petition
4-52 the court for determination of the claim at any time before it is
4-53 barred by the applicable statute of limitations and on due proof
4-54 procure an order for its allowance and payment from the estate.
4-55 SECTION 6. A court may modify any guardianship in effect on
4-56 September 1, 1997, to conform with the requirements of Section 805,
4-57 Texas Probate Code, as amended by this Act, on the court's own
4-58 motion or on application by the ward, guardian, or any other
4-59 interested person or entity.
4-60 SECTION 7. The change in law made by Sections 1-4 of this
4-61 Act to the Texas Probate Code apply only to an account or report
4-62 filed on or after the effective date of this Act. An account or
4-63 report filed before the effective date of this Act is governed by
4-64 the law applicable on the date the account or report was filed, and
4-65 that law is continued in effect for that purpose.
4-66 SECTION 8. Except as provided by Section 6 of this Act:
4-67 (1) the change in law made by this Act to Section 805,
4-68 Texas Probate Code, applies only to proceedings for the appointment
4-69 of a guardian instituted on or after the effective date of this
5-1 Act; and
5-2 (2) a proceeding for the appointment of a guardian
5-3 that is instituted before the effective date of this Act is
5-4 governed by the law in effect on the date the proceedings were
5-5 instituted, and the former law is continued in effect for that
5-6 purpose.
5-7 SECTION 9. This Act takes effect September 1, 1997.
5-8 SECTION 10. The importance of this legislation and the
5-9 crowded condition of the calendars in both houses create an
5-10 emergency and an imperative public necessity that the
5-11 constitutional rule requiring bills to be read on three several
5-12 days in each house be suspended, and this rule is hereby suspended.
5-13 * * * * *