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.

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