AN ACT
1-1 relating to the administration of decedents' estates.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Subsection (b), Section 5A, Texas Probate Code,
1-4 is amended to read as follows:
1-5 (b) In proceedings in the statutory probate courts and
1-6 districts courts, the phrases "appertaining to estates" and
1-7 "incident to an estate" in this Code include the probate of wills,
1-8 the issuance of letters testamentary and of administration, and the
1-9 determination of heirship, and also include, but are not limited
1-10 to, all claims by or against an estate, all actions for trial of
1-11 title to land and for the enforcement of liens thereon, all actions
1-12 for trial of the right of property, all actions to construe wills,
1-13 the interpretation and administration of testamentary trusts and
1-14 the applying of constructive trusts, and generally all matters
1-15 relating to the settlement, partition, and distribution of estates
1-16 of deceased persons. All statutory probate courts may, in the
1-17 exercise of their jurisdiction, notwithstanding any other
1-18 provisions of this Code, hear all suits, actions, and applications
1-19 filed against or on behalf of any heirship proceeding or decedent's
1-20 estate, including estates administered by an independent executor;
1-21 all such suits, actions, and applications are appertaining to and
1-22 incident to an estate for the purposes of this section. This
1-23 subsection shall be construed in conjunction with and in harmony
2-1 with Section 145 and all other sections of this Code dealing with
2-2 independent executors, but shall not be construed so as to increase
2-3 permissible judicial control over independent executors. All
2-4 statutory probate courts shall have the same powers over
2-5 independent executors that are exercisable by the district courts.
2-6 In situations where the jurisdiction of a statutory probate court
2-7 is concurrent with that of a district court, any cause of action
2-8 appertaining to estates or incident to an estate shall be brought
2-9 in a statutory probate court rather than in the district court.
2-10 SECTION 2. Chapter I, Texas Probate Code, is amended by
2-11 adding Section 10B to read as follows:
2-12 Sec. 10B. COMMUNICATIONS OR RECORDS RELATING TO DECEDENT'S
2-13 CONDITION BEFORE DEATH. Notwithstanding the Medical Practice Act
2-14 (Article 4495b, Vernon's Texas Civil Statutes), a person who is a
2-15 party to a will contest or a proceeding in which a party relies on
2-16 the mental or testamentary capacity of a decedent before the
2-17 decedent's death as part of the party's claim or defense is
2-18 entitled to production of all communications or records relevant to
2-19 the decedent's condition before the decedent's death. On receipt
2-20 of a subpoena of communications or records under this section and
2-21 proof of filing of the will contest or proceeding, by certified
2-22 copy, the appropriate physician, hospital, medical facility,
2-23 custodian of records, or other person in possession of the
2-24 communications or records shall release the communications or
2-25 records to the party requesting the records without further
3-1 authorization.
3-2 SECTION 3. Section 36, Texas Probate Code, is amended to
3-3 read as follows:
3-4 Sec. 36. Duty and Responsibility of Judge. (a) It shall be
3-5 the duty of each county and probate court to use reasonable
3-6 diligence to see that personal representatives of estates being
3-7 administered under orders of the court and other officers of the
3-8 court perform the duty enjoined upon them by law pertaining to such
3-9 estates. The judge shall annually, if in his opinion the same be
3-10 necessary, examine the condition of each of said estates and the
3-11 solvency of the bonds of personal representatives of estates. He
3-12 shall, at any time he finds that the personal representative's bond
3-13 is not sufficient to protect such estate, require such personal
3-14 representatives to execute a new bond in accordance with law. In
3-15 each case, he shall notify the personal representative, and the
3-16 sureties on the bond, as provided by law; and should damage or loss
3-17 result to estates through the gross neglect of the judge to use
3-18 reasonable diligence in the performance of his duty, he shall be
3-19 liable on his bond to those damaged by such neglect.
3-20 (b) The court may request an applicant or court-appointed
3-21 fiduciary to produce other information identifying an applicant,
3-22 decedent, or personal representative, including social security
3-23 numbers, in addition to identifying information the applicant or
3-24 fiduciary is required to produce under this code. The court shall
3-25 maintain the information required under this subsection, and the
4-1 information may not be filed with the clerk.
4-2 SECTION 4. Subdivision (1), Subsection (b), Section 42,
4-3 Texas Probate Code, is amended to read as follows:
4-4 (1) For the purpose of inheritance, a child is the
4-5 child of his biological father if the child is born under
4-6 circumstances described by Section 151.002 [12.02], Family Code, is
4-7 adjudicated to be the child of the father by court decree as
4-8 provided by Chapter 160 [13], Family Code, was adopted by his
4-9 father, or if the father executed a statement of paternity as
4-10 provided by Section 160.202 [13.22], Family Code, or a like
4-11 statement properly executed in another jurisdiction, so that he and
4-12 his issue shall inherit from his father and from his paternal
4-13 kindred, both descendants, ascendants, and collaterals in all
4-14 degrees, and they may inherit from him and his issue. A person
4-15 claiming to be a biological child of the decedent, who is not
4-16 otherwise presumed to be a child of the decedent, or claiming
4-17 inheritance through a biological child of the decedent, who is not
4-18 otherwise presumed to be a child of the decedent, may petition the
4-19 probate court for a determination of right of inheritance. If the
4-20 court finds by clear and convincing evidence that the purported
4-21 father was the biological father of the child, the child is treated
4-22 as any other child of the decedent for the purpose of inheritance
4-23 and he and his issue may inherit from his paternal kindred, both
4-24 descendants, ascendants, and collaterals in all degrees, and they
4-25 may inherit from him and his issue. This section does not permit
5-1 inheritance by a purported father of a child, whether recognized or
5-2 not, if the purported father's parental rights have been
5-3 terminated.
5-4 SECTION 5. Subsection (a), Section 69, Texas Probate Code,
5-5 is amended to read as follows:
5-6 (a) If, after making a will, the testator is divorced or the
5-7 testator's marriage is annulled, all provisions in the will in
5-8 favor of the testator's former spouse, or appointing such spouse to
5-9 any fiduciary capacity under the will or with respect to the estate
5-10 or person of the testator's children, must be read as if the former
5-11 spouse failed to survive the testator, and shall be null and void
5-12 and of no effect unless the will expressly provides otherwise.
5-13 SECTION 6. Subsection (a), Section 81, Texas Probate Code,
5-14 is amended to read as follows:
5-15 (a) For Probate of a Written Will. A written will shall, if
5-16 within the control of the applicant, be filed with the application
5-17 for its probate, and shall remain in the custody of the county
5-18 clerk unless removed therefrom by order of a proper court. An
5-19 application for probate of a written will shall state:
5-20 (1) The name and domicile of each applicant.
5-21 (2) The name, age if known, and domicile of the
5-22 decedent, and the fact, time, and place of death.
5-23 (3) Facts showing that the court has venue.
5-24 (4) That the decedent owned real or personal property,
5-25 or both, describing the same generally, and stating its probable
6-1 value.
6-2 (5) The date of the will, the name and residence of
6-3 the executor named therein, if any, and if none be named, then the
6-4 name and residence of the person to whom it is desired that letters
6-5 be issued, and also the names and residences of the subscribing
6-6 witnesses, if any.
6-7 (6) Whether a child or children born or adopted after
6-8 the making of such will survived the decedent, and the name of each
6-9 such survivor, if any.
6-10 (7) That such executor or applicant, or other person
6-11 to whom it is desired that letters be issued, is not disqualified
6-12 by law from accepting letters.
6-13 (8) Whether the decedent was ever divorced, and if so,
6-14 when and from whom.
6-15 (9) [The social security number of the applicant and
6-16 of the decedent.]
6-17 [(10)] Whether the state, a governmental agency of the
6-18 state, or a charitable organization is named by the will as a
6-19 devisee.
6-20 The foregoing matters shall be stated and averred in the
6-21 application to the extent that they are known to the applicant, or
6-22 can with reasonable diligence be ascertained by him, and if any of
6-23 such matters is not stated or averred in the application, the
6-24 application shall set forth the reason why such matter is not so
6-25 stated and averred.
7-1 SECTION 7. Section 82, Texas Probate Code, is amended to
7-2 read as follows:
7-3 Sec. 82. CONTENTS OF APPLICATION FOR LETTERS OF
7-4 ADMINISTRATION. An application for letters of administration when
7-5 no will, written or oral, is alleged to exist shall state:
7-6 (a) The name and domicile of the applicant,
7-7 relationship to the decedent, if any, and that the applicant is not
7-8 disqualified by law to act as administrator;
7-9 (b) The name and intestacy of the decedent, and the
7-10 fact, time and place of death;
7-11 (c) Facts necessary to show venue in the court to
7-12 which the application is made;
7-13 (d) Whether the decedent owned real or personal
7-14 property, with a statement of its probable value;
7-15 (e) The name, age, marital status and address, if
7-16 known, and the relationship, if any, of each heir to the decedent;
7-17 (f) If known by the applicant at the time of the
7-18 filing of the application, whether children were born to or adopted
7-19 by the decedent, with the name and the date and place of birth of
7-20 each;
7-21 (g) If known by the applicant at the time of the
7-22 filing of the application, whether the decedent was ever divorced,
7-23 and if so, when and from whom; and
7-24 (h) That a necessity exists for administration of the
7-25 estate, alleging the facts which show such necessity[; and]
8-1 [(i) The social security number of the applicant and
8-2 of the decedent if known].
8-3 SECTION 8. Section 146, Texas Probate Code, is amended by
8-4 amending Subsection (b) and adding Subsections (d) and (e) to read
8-5 as follows:
8-6 (b) Secured Claims for Money. Within six months after the
8-7 date letters are granted or within four months after the date
8-8 notice is received under Section 295, whichever is later, a
8-9 creditor with a claim for money secured by real or personal
8-10 property of the estate must give notice to [notify] the independent
8-11 executor [by certified or registered mail] of the creditor's
8-12 election to have the creditor's claim approved as a matured secured
8-13 claim to be paid in due course of administration. If the election
8-14 is not made, the claim is a preferred debt and lien against the
8-15 specific property securing the indebtedness and shall be paid
8-16 according to the terms of the contract that secured the lien, and
8-17 the claim may not be asserted against other assets of the estate.
8-18 The independent executor may pay the claim before the claim matures
8-19 if paying the claim before maturity is in the best interest of the
8-20 estate.
8-21 (d) Notice Required of Unsecured Creditor. An unsecured
8-22 creditor who has a claim for money against an estate and receives a
8-23 notice under Section 294(d) shall give notice to the independent
8-24 executor of the nature and amount of the claim not later than the
8-25 120th day after the date on which the notice is received or the
9-1 claim is barred.
9-2 (e) Placement of Notice. Notice required by Subsections (b)
9-3 and (d) must be contained in:
9-4 (1) a written instrument that is hand-delivered with
9-5 proof of receipt or mailed by certified mail, return receipt
9-6 requested, to the independent executor or the executor's attorney;
9-7 (2) a pleading filed in a lawsuit with respect to the
9-8 claim; or
9-9 (3) a written instrument or pleading filed in the
9-10 court in which the administration of the estate is pending.
9-11 SECTION 9. Subsection (a), Section 234, Texas Probate Code,
9-12 is amended to read as follows:
9-13 (a) Powers To Be Exercised Under Order of the Court. The
9-14 personal representative of the estate of any person may, upon
9-15 application and order authorizing same, renew or extend any
9-16 obligation owing by or to such estate. When a personal
9-17 representative deems it for the interest of the estate, he may,
9-18 upon written application to the court, and by order granting
9-19 authority:
9-20 (1) Purchase or exchange property;
9-21 (2) Take claims or property for the use and benefit of
9-22 the estate in payment of any debt due or owing to the estate;
9-23 (3) Compound bad or doubtful debts due or owing to the
9-24 estate;
9-25 (4) Make compromises or settlements in relation to
10-1 property or claims in dispute or litigation;
10-2 (5) Compromise or pay in full any secured claim which
10-3 has been allowed and approved as required by law against the estate
10-4 by conveying to the holder of such claim the real estate or
10-5 personalty securing the same, in full payment, liquidation, and
10-6 satisfaction thereof, and in consideration of cancellation of
10-7 notes, deeds of trust, mortgages, chattel mortgages, or other
10-8 evidences of liens securing the payment of such claim;
10-9 (6) Abandon the administration of property of the
10-10 estate that is burdensome or worthless. Abandoned real or personal
10-11 property may be foreclosed by a secured party, trustee, or
10-12 mortgagee without further order of the court.
10-13 SECTION 10. Section 281, Texas Probate Code, is amended to
10-14 read as follows:
10-15 Sec. 281. EXEMPT PROPERTY LIABLE FOR CERTAIN DEBTS. The
10-16 exempt property, other than the homestead or any allowance made in
10-17 lieu thereof, shall be liable for the payment of Class 1 claims
10-18 [the funeral expenses and the expenses of last sickness of the
10-19 deceased, when claims are presented within the time prescribed
10-20 therefor], but such property shall not be liable for any other
10-21 debts of the estate.
10-22 SECTION 11. Section 290, Texas Probate Code, is amended to
10-23 read as follows:
10-24 Sec. 290. FAMILY ALLOWANCE PREFERRED. The family allowance
10-25 made for the support of the surviving spouse and minor children of
11-1 the deceased shall be paid in preference to all other debts or
11-2 charges against the estate, except Class 1 claims [expenses of the
11-3 funeral and last sickness of the deceased].
11-4 SECTION 12. Section 299, Texas Probate Code, is amended to
11-5 read as follows:
11-6 Sec. 299. TOLLING OF GENERAL STATUTES OF LIMITATION. The
11-7 general statutes of limitation are tolled on the date:
11-8 (1) a claim for money is filed or deposited with the
11-9 clerk [(a) By filing a claim which is legally allowed and
11-10 approved]; or
11-11 (2) suit is brought against the personal
11-12 representative of an estate with respect to a claim of the estate
11-13 that is not required to be presented to the personal representative
11-14 [(b) By bringing a suit upon a rejected and disapproved claim
11-15 within ninety days after such rejection or disapproval].
11-16 SECTION 13. Subsections (e), (f), (i), and (j), Section 306,
11-17 Texas Probate Code, are amended to read as follows:
11-18 (e) Payment of Maturities on Preferred Debt and Lien Claims.
11-19 If property securing a claim allowed, approved, and fixed under
11-20 Paragraph (2) of Subsection (a) hereof is not sold or distributed
11-21 within six months from the date letters are granted, the
11-22 representative of the estate shall promptly pay all maturities
11-23 which have accrued on the debt according to the terms thereof, and
11-24 shall perform all the terms of any contract securing same. If the
11-25 representative defaults in such payment or performance, on
12-1 application of the claimholder, the court shall:
12-2 (1) require the sale of said property subject to the
12-3 unmatured part of such debt and apply the proceeds of the sale to
12-4 the liquidation of the maturities;
12-5 (2) require the sale of the property free of the lien
12-6 and apply the proceeds to the payment of the whole debt; or
12-7 (3) authorize foreclosure by the claimholder as
12-8 provided by Subsections [under Subsection] (f) through (k) of this
12-9 section.
12-10 (f) Foreclosure of Preferred Liens. An application by a
12-11 claimholder under Subsection (e) of this section [If the court
12-12 authorizes a claimholder] to foreclose the claimholder's lien or
12-13 security interest on property securing a claim that has been
12-14 allowed, approved, and fixed under Paragraph (2) of Subsection (a)
12-15 of this section shall be[, the claimholder shall file with the
12-16 court an application] supported by affidavit of the claimholder
12-17 that:
12-18 (1) describes the property or part of the property to
12-19 be sold by foreclosure;
12-20 (2) describes the amounts of the claimholder's
12-21 outstanding debt;
12-22 (3) describes the maturities that have accrued on the
12-23 debt according to the terms of the debt;
12-24 (4) describes any other debts secured by a mortgage,
12-25 lien, or security interest against the property that are known by
13-1 the claimholder;
13-2 (5) contains a statement that the claimholder has no
13-3 knowledge of the existence of any debts secured by the property
13-4 other than those described by the application; and
13-5 (6) requests permission for the claimholder to
13-6 foreclose the claimholder's mortgage, lien, or security interest.
13-7 (i) Hearing. (1) At the hearing, if the court finds that
13-8 there is a default in payment or performance under the contract
13-9 that secures the payment of the claim, the court shall:
13-10 (A) require the sale of the property subject to
13-11 the unmatured part of the debt and apply the proceeds of the sale
13-12 to the liquidation of the maturities;
13-13 (B) require the sale of the property free of the
13-14 lien and apply the proceeds to the payment of the whole debt; or
13-15 (C) authorize foreclosure by the claimholder as
13-16 provided by Subsection (f) of this section.
13-17 (2) When the court grants a claimholder the right of
13-18 foreclosure, the court shall authorize [enter an order granting]
13-19 the claimholder [permission] to foreclose the claimholder's
13-20 mortgage, lien, or security interest in accordance with the
13-21 provisions of the document creating the mortgage, lien, or security
13-22 interest or in any other manner allowed by law. In the discretion
13-23 of the court and based on the evidence presented at the hearing,
13-24 the court may fix a minimum price for the property to be sold by
13-25 foreclosure that does not exceed the fair market value of the
14-1 property. If the court fixes a minimum price, the property may not
14-2 be sold at the foreclosure sale for a lower price.
14-3 (j) Appeal. Any person interested in the estate may appeal
14-4 an order issued under Subsection (i)(1)(C) [(i)] of this section.
14-5 SECTION 14. Subsection (a), Section 450, Texas Probate Code,
14-6 is amended to read as follows:
14-7 (a) Any of the following provisions in an insurance policy,
14-8 contract of employment, bond, mortgage, promissory note, deposit
14-9 agreement, employees' trust, retirement account, deferred
14-10 compensation arrangement, custodial agreement, pension plan, trust
14-11 agreement, conveyance of real or personal property, securities,
14-12 accounts with financial institutions as defined in Part 1 of this
14-13 chapter, or any other written instrument effective as a contract,
14-14 gift, conveyance, or trust is deemed to be nontestamentary, and
14-15 this code does not invalidate the instrument or any provision:
14-16 (1) that money or other benefits theretofore due to,
14-17 controlled, or owned by a decedent shall be paid after his death to
14-18 a person designated by the decedent in either the instrument or a
14-19 separate writing, including a will, executed at the same time as
14-20 the instrument or subsequently;
14-21 (2) that any money due or to become due under the
14-22 instrument shall cease to be payable in event of the death of the
14-23 promisee or the promissor before payment or demand; or
14-24 (3) that any property which is the subject of the
14-25 instrument shall pass to a person designated by the decedent in
15-1 either the instrument or a separate writing, including a will,
15-2 executed at the same time as the instrument or subsequently.
15-3 SECTION 15. Part 4, Chapter XI, Texas Probate Code, as added
15-4 by S.B. No. 504, Acts of the 75th Legislature, Regular Session,
15-5 1997, is repealed.
15-6 SECTION 16. This Act takes effect September 1, 1997, and
15-7 applies only to the estate of a person who dies on or after that
15-8 date. An estate of a person who dies before the effective date of
15-9 this Act is governed by the law in effect on the date of the
15-10 person's death, and the former law is continued in effect for that
15-11 purpose.
15-12 SECTION 17. The importance of this legislation and the
15-13 crowded condition of the calendars in both houses create an
15-14 emergency and an imperative public necessity that the
15-15 constitutional rule requiring bills to be read on three several
15-16 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 506 passed the Senate on
March 26, 1997, by the following vote: Yeas 31, Nays 0; and that
the Senate concurred in House amendments on May 22, 1997, by a
viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 506 passed the House, with
amendments, on May 20, 1997, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor