By: Harris S.B. No. 506
A BILL TO BE ENTITLED
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. Section 36, Texas Probate Code, is amended to
1-4 read as follows:
1-5 Sec. 36. Duty and Responsibility of Judge. (a) It shall be
1-6 the duty of each county and probate court to use reasonable
1-7 diligence to see that personal representatives of estates being
1-8 administered under orders of the court and other officers of the
1-9 court perform the duty enjoined upon them by law pertaining to such
1-10 estates. The judge shall annually, if in his opinion the same be
1-11 necessary, examine the condition of each of said estates and the
1-12 solvency of the bonds of personal representatives of estates. He
1-13 shall, at any time he finds that the personal representative's bond
1-14 is not sufficient to protect such estate, require such personal
1-15 representatives to execute a new bond in accordance with law. In
1-16 each case, he shall notify the personal representative, and the
1-17 sureties on the bond, as provided by law; and should damage or loss
1-18 result to estates through the gross neglect of the judge to use
1-19 reasonable diligence in the performance of his duty, he shall be
1-20 liable on his bond to those damaged by such neglect.
1-21 (b) The court may request an applicant or court-appointed
1-22 fiduciary to produce other information identifying an applicant,
1-23 decedent, or personal representative, including social security
2-1 numbers, in addition to identifying information the applicant or
2-2 fiduciary is required to produce under this code. The court shall
2-3 maintain the information required under this subsection, and the
2-4 information may not be filed with the clerk.
2-5 SECTION 2. Subdivision (1), Subsection (b), Section 42,
2-6 Texas Probate Code, is amended to read as follows:
2-7 (1) For the purpose of inheritance, a child is the
2-8 child of his biological father if the child is born under
2-9 circumstances described by Section 151.002 [12.02], Family Code, is
2-10 adjudicated to be the child of the father by court decree as
2-11 provided by Chapter 160 [13], Family Code, was adopted by his
2-12 father, or if the father executed a statement of paternity as
2-13 provided by Section 160.202 [13.22], Family Code, or a like
2-14 statement properly executed in another jurisdiction, so that he and
2-15 his issue shall inherit from his father and from his paternal
2-16 kindred, both descendants, ascendants, and collaterals in all
2-17 degrees, and they may inherit from him and his issue. A person
2-18 claiming to be a biological child of the decedent, who is not
2-19 otherwise presumed to be a child of the decedent, or claiming
2-20 inheritance through a biological child of the decedent, who is not
2-21 otherwise presumed to be a child of the decedent, may petition the
2-22 probate court for a determination of right of inheritance. If the
2-23 court finds by clear and convincing evidence that the purported
2-24 father was the biological father of the child, the child is treated
2-25 as any other child of the decedent for the purpose of inheritance
3-1 and he and his issue may inherit from his paternal kindred, both
3-2 descendants, ascendants, and collaterals in all degrees, and they
3-3 may inherit from him and his issue. This section does not permit
3-4 inheritance by a purported father of a child, whether recognized or
3-5 not, if the purported father's parental rights have been
3-6 terminated.
3-7 SECTION 3. Subsection (a), Section 69, Texas Probate Code,
3-8 is amended to read as follows:
3-9 (a) If, after making a will, the testator is divorced or the
3-10 testator's marriage is annulled, all provisions in the will in
3-11 favor of the testator's former spouse, or appointing such spouse to
3-12 any fiduciary capacity under the will or with respect to the estate
3-13 or person of the testator's children, must be read as if the former
3-14 spouse failed to survive the testator, and shall be null and void
3-15 and of no effect unless the will expressly provides otherwise.
3-16 SECTION 4. Subsection (a), Section 81, Texas Probate Code,
3-17 is amended to read as follows:
3-18 (a) For Probate of a Written Will. A written will shall, if
3-19 within the control of the applicant, be filed with the application
3-20 for its probate, and shall remain in the custody of the county
3-21 clerk unless removed therefrom by order of a proper court. An
3-22 application for probate of a written will shall state:
3-23 (1) The name and domicile of each applicant.
3-24 (2) The name, age if known, and domicile of the
3-25 decedent, and the fact, time, and place of death.
4-1 (3) Facts showing that the court has venue.
4-2 (4) That the decedent owned real or personal property,
4-3 or both, describing the same generally, and stating its probable
4-4 value.
4-5 (5) The date of the will, the name and residence of
4-6 the executor named therein, if any, and if none be named, then the
4-7 name and residence of the person to whom it is desired that letters
4-8 be issued, and also the names and residences of the subscribing
4-9 witnesses, if any.
4-10 (6) Whether a child or children born or adopted after
4-11 the making of such will survived the decedent, and the name of each
4-12 such survivor, if any.
4-13 (7) That such executor or applicant, or other person
4-14 to whom it is desired that letters be issued, is not disqualified
4-15 by law from accepting letters.
4-16 (8) Whether the decedent was ever divorced, and if so,
4-17 when and from whom.
4-18 (9) [The social security number of the applicant and
4-19 of the decedent.]
4-20 [(10)] Whether the state, a governmental agency of the
4-21 state, or a charitable organization is named by the will as a
4-22 devisee.
4-23 The foregoing matters shall be stated and averred in the
4-24 application to the extent that they are known to the applicant, or
4-25 can with reasonable diligence be ascertained by him, and if any of
5-1 such matters is not stated or averred in the application, the
5-2 application shall set forth the reason why such matter is not so
5-3 stated and averred.
5-4 SECTION 5. Section 82, Texas Probate Code, is amended to
5-5 read as follows:
5-6 Sec. 82. CONTENTS OF APPLICATION FOR LETTERS OF
5-7 ADMINISTRATION. An application for letters of administration when
5-8 no will, written or oral, is alleged to exist shall state:
5-9 (a) The name and domicile of the applicant,
5-10 relationship to the decedent, if any, and that the applicant is not
5-11 disqualified by law to act as administrator;
5-12 (b) The name and intestacy of the decedent, and the
5-13 fact, time and place of death;
5-14 (c) Facts necessary to show venue in the court to
5-15 which the application is made;
5-16 (d) Whether the decedent owned real or personal
5-17 property, with a statement of its probable value;
5-18 (e) The name, age, marital status and address, if
5-19 known, and the relationship, if any, of each heir to the decedent;
5-20 (f) If known by the applicant at the time of the
5-21 filing of the application, whether children were born to or adopted
5-22 by the decedent, with the name and the date and place of birth of
5-23 each;
5-24 (g) If known by the applicant at the time of the
5-25 filing of the application, whether the decedent was ever divorced,
6-1 and if so, when and from whom; and
6-2 (h) That a necessity exists for administration of the
6-3 estate, alleging the facts which show such necessity[; and]
6-4 [(i) The social security number of the applicant and
6-5 of the decedent if known].
6-6 SECTION 6. Section 146, Texas Probate Code, is amended by
6-7 amending Subsection (b) and adding Subsections (d) and (e) to read
6-8 as follows:
6-9 (b) Secured Claims for Money. Within six months after the
6-10 date letters are granted or within four months after the date
6-11 notice is received under Section 295, whichever is later, a
6-12 creditor with a claim for money secured by real or personal
6-13 property of the estate must give notice to [notify] the independent
6-14 executor [by certified or registered mail] of the creditor's
6-15 election to have the creditor's claim approved as a matured secured
6-16 claim to be paid in due course of administration. If the election
6-17 is not made, the claim is a preferred debt and lien against the
6-18 specific property securing the indebtedness and shall be paid
6-19 according to the terms of the contract that secured the lien, and
6-20 the claim may not be asserted against other assets of the estate.
6-21 The independent executor may pay the claim before the claim matures
6-22 if paying the claim before maturity is in the best interest of the
6-23 estate.
6-24 (d) Notice Required of Unsecured Creditor. An unsecured
6-25 creditor who has a claim for money against an estate and receives a
7-1 notice under Section 294(d) shall give notice to the independent
7-2 executor of the nature and amount of the claim not later than the
7-3 120th day after the date on which the notice is received or the
7-4 claim is barred.
7-5 (e) Placement of Notice. Notice required by Subsections (b)
7-6 and (d) must be contained in:
7-7 (1) a written instrument that is hand-delivered with
7-8 proof of receipt or mailed by certified mail, return receipt
7-9 requested, to the independent executor or the executor's attorney;
7-10 (2) a pleading filed in a lawsuit with respect to the
7-11 claim; or
7-12 (3) a written instrument or pleading filed in the
7-13 court in which the administration of the estate is pending.
7-14 SECTION 7. Subsection (a), Section 234, Texas Probate Code,
7-15 is amended to read as follows:
7-16 (a) Powers To Be Exercised Under Order of the Court. The
7-17 personal representative of the estate of any person may, upon
7-18 application and order authorizing same, renew or extend any
7-19 obligation owing by or to such estate. When a personal
7-20 representative deems it for the interest of the estate, he may,
7-21 upon written application to the court, and by order granting
7-22 authority:
7-23 (1) Purchase or exchange property;
7-24 (2) Take claims or property for the use and benefit of
7-25 the estate in payment of any debt due or owing to the estate;
8-1 (3) Compound bad or doubtful debts due or owing to the
8-2 estate;
8-3 (4) Make compromises or settlements in relation to
8-4 property or claims in dispute or litigation;
8-5 (5) Compromise or pay in full any secured claim which
8-6 has been allowed and approved as required by law against the estate
8-7 by conveying to the holder of such claim the real estate or
8-8 personalty securing the same, in full payment, liquidation, and
8-9 satisfaction thereof, and in consideration of cancellation of
8-10 notes, deeds of trust, mortgages, chattel mortgages, or other
8-11 evidences of liens securing the payment of such claim;
8-12 (6) Abandon the administration of property of the
8-13 estate that is burdensome or worthless. Abandoned real or personal
8-14 property may be foreclosed by a secured party, trustee, or
8-15 mortgagee without further order of the court.
8-16 SECTION 8. Section 281, Texas Probate Code, is amended to
8-17 read as follows:
8-18 Sec. 281. EXEMPT PROPERTY LIABLE FOR CERTAIN DEBTS. The
8-19 exempt property, other than the homestead or any allowance made in
8-20 lieu thereof, shall be liable for the payment of Class 1 claims
8-21 [the funeral expenses and the expenses of last sickness of the
8-22 deceased, when claims are presented within the time prescribed
8-23 therefor], but such property shall not be liable for any other
8-24 debts of the estate.
8-25 SECTION 9. Section 290, Texas Probate Code, is amended to
9-1 read as follows:
9-2 Sec. 290. FAMILY ALLOWANCE PREFERRED. The family allowance
9-3 made for the support of the surviving spouse and minor children of
9-4 the deceased shall be paid in preference to all other debts or
9-5 charges against the estate, except Class 1 claims [expenses of the
9-6 funeral and last sickness of the deceased].
9-7 SECTION 10. Section 299, Texas Probate Code, is amended to
9-8 read as follows:
9-9 Sec. 299. TOLLING OF GENERAL STATUTES OF LIMITATION. The
9-10 general statutes of limitation are tolled on the date:
9-11 (1) a claim for money is filed or deposited with the
9-12 clerk [(a) By filing a claim which is legally allowed and
9-13 approved]; or
9-14 (2) suit is brought against the personal
9-15 representative of an estate with respect to a claim of the estate
9-16 that is not required to be presented to the personal representative
9-17 [(b) By bringing a suit upon a rejected and disapproved claim
9-18 within ninety days after such rejection or disapproval].
9-19 SECTION 11. Subsections (e), (f), (i), and (j), Section 306,
9-20 Texas Probate Code, are amended to read as follows:
9-21 (e) Payment of Maturities on Preferred Debt and Lien Claims.
9-22 If property securing a claim allowed, approved, and fixed under
9-23 Paragraph (2) of Subsection (a) hereof is not sold or distributed
9-24 within six months from the date letters are granted, the
9-25 representative of the estate shall promptly pay all maturities
10-1 which have accrued on the debt according to the terms thereof, and
10-2 shall perform all the terms of any contract securing same. If the
10-3 representative defaults in such payment or performance, on
10-4 application of the claimholder, the court shall:
10-5 (1) require the sale of said property subject to the
10-6 unmatured part of such debt and apply the proceeds of the sale to
10-7 the liquidation of the maturities;
10-8 (2) require the sale of the property free of the lien
10-9 and apply the proceeds to the payment of the whole debt; or
10-10 (3) authorize foreclosure by the claimholder as
10-11 provided by Subsections [under Subsection] (f) through (k) of this
10-12 section.
10-13 (f) Foreclosure of Preferred Liens. An application by a
10-14 claimholder under Subsection (e) of this section [If the court
10-15 authorizes a claimholder] to foreclose the claimholder's lien or
10-16 security interest on property securing a claim that has been
10-17 allowed, approved, and fixed under Paragraph (2) of Subsection (a)
10-18 of this section shall be[, the claimholder shall file with the
10-19 court an application] supported by affidavit of the claimholder
10-20 that:
10-21 (1) describes the property or part of the property to
10-22 be sold by foreclosure;
10-23 (2) describes the amounts of the claimholder's
10-24 outstanding debt;
10-25 (3) describes the maturities that have accrued on the
11-1 debt according to the terms of the debt;
11-2 (4) describes any other debts secured by a mortgage,
11-3 lien, or security interest against the property that are known by
11-4 the claimholder;
11-5 (5) contains a statement that the claimholder has no
11-6 knowledge of the existence of any debts secured by the property
11-7 other than those described by the application; and
11-8 (6) requests permission for the claimholder to
11-9 foreclose the claimholder's mortgage, lien, or security interest.
11-10 (i) Hearing. (1) At the hearing, if the court finds that
11-11 there is a default in payment or performance under the contract
11-12 that secures the payment of the claim, the court shall:
11-13 (A) require the sale of the property subject to
11-14 the unmatured part of the debt and apply the proceeds of the sale
11-15 to the liquidation of the maturities;
11-16 (B) require the sale of the property free of the
11-17 lien and apply the proceeds to the payment of the whole debt; or
11-18 (C) authorize foreclosure by the claimholder as
11-19 provided by Subsection (f) of this section.
11-20 (2) When the court grants a claimholder the right of
11-21 foreclosure, the court shall authorize [enter an order granting]
11-22 the claimholder [permission] to foreclose the claimholder's
11-23 mortgage, lien, or security interest in accordance with the
11-24 provisions of the document creating the mortgage, lien, or security
11-25 interest or in any other manner allowed by law. In the discretion
12-1 of the court and based on the evidence presented at the hearing,
12-2 the court may fix a minimum price for the property to be sold by
12-3 foreclosure that does not exceed the fair market value of the
12-4 property. If the court fixes a minimum price, the property may not
12-5 be sold at the foreclosure sale for a lower price.
12-6 (j) Appeal. Any person interested in the estate may appeal
12-7 an order issued under Subsection (i)(1)(C) [(i)] of this section.
12-8 SECTION 12. This Act takes effect September 1, 1997, and
12-9 applies only to the estate of a person who dies on or after that
12-10 date. An estate of a person who dies before the effective date of
12-11 this Act is governed by the law in effect on the date of the
12-12 person's death, and the former law is continued in effect for that
12-13 purpose.
12-14 SECTION 13. The importance of this legislation and the
12-15 crowded condition of the calendars in both houses create an
12-16 emergency and an imperative public necessity that the
12-17 constitutional rule requiring bills to be read on three several
12-18 days in each house be suspended, and this rule is hereby suspended.