By Harris                                        S.B. No. 506

      75R4388 CLG-F                           

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the administration of decedents' estates.


 1-4           SECTION 1.  Section 42(b)(1), Texas Probate Code, is amended

 1-5     to read as follows:

 1-6           (b)  Paternal Inheritance.  (1)  For the purpose of

 1-7     inheritance, a child is the child of his biological father if the

 1-8     child is born under circumstances described by Section 151.002

 1-9     [12.02], Family Code, is adjudicated to be the child of the father

1-10     by court decree as provided by Chapter 160 [13], Family Code, was

1-11     adopted by his father, or if the father executed a statement of

1-12     paternity as provided by Section 160.202 [13.22], Family Code, or a

1-13     like statement properly executed in another jurisdiction, so that

1-14     he and his issue shall inherit from his father and from his

1-15     paternal kindred, both descendants, ascendants, and collaterals in

1-16     all degrees, and they may inherit from him and his issue.  A person

1-17     claiming to be a biological child of the decedent, who is not

1-18     otherwise presumed to be a child of the decedent, or claiming

1-19     inheritance through a biological child of the decedent, who is not

1-20     otherwise presumed to be a child of the decedent, may petition the

1-21     probate court for a determination of right of inheritance.  If the

1-22     court finds by clear and convincing evidence that the purported

1-23     father was the biological father of the child, the child is treated

1-24     as any other child of the decedent for the purpose of inheritance

 2-1     and he and his issue may inherit from his paternal kindred, both

 2-2     descendants, ascendants, and collaterals in all degrees, and they

 2-3     may inherit from him and his issue.  This section does not permit

 2-4     inheritance by a purported father of a child, whether recognized or

 2-5     not, if the purported father's parental rights have been

 2-6     terminated.

 2-7           SECTION 2.  Section 69(a), Texas Probate Code, is amended to

 2-8     read as follows:

 2-9           (a)  If, after making a will, the testator is divorced or the

2-10     testator's marriage is annulled, all provisions in the will in

2-11     favor of the testator's former spouse, or appointing such spouse to

2-12     any fiduciary capacity under the will or with respect to the estate

2-13     or person of the testator's children, must be read as if the former

2-14     spouse failed to survive the testator, and shall be null and void

2-15     and of no  effect unless the will expressly provides otherwise.

2-16           SECTION 3.  Section 81(a), Texas Probate Code, is amended to

2-17     read as follows:

2-18           (a)  For Probate of a Written Will.  A written will shall, if

2-19     within the control of the applicant, be filed with the application

2-20     for its probate, and shall remain in the custody of the county

2-21     clerk unless removed therefrom by order of a proper court.  An

2-22     application for probate of a written will shall state:

2-23                 (1)  The name and domicile of each applicant.

2-24                 (2)  The name, age if known, and domicile of the

2-25     decedent, and the fact, time, and place of death.

2-26                 (3)  Facts showing that the court has venue.

2-27                 (4)  That the decedent owned real or personal property,

 3-1     or both, describing the same generally, and stating its probable

 3-2     value.

 3-3                 (5)  The date of the will, the name and residence of

 3-4     the executor named therein, if any, and if none be named, then the

 3-5     name and residence of the person to whom it is desired that letters

 3-6     be issued, and also the names and residences of the subscribing

 3-7     witnesses, if any.

 3-8                 (6)  Whether a child or children born or adopted after

 3-9     the making of such will survived the decedent, and the name of each

3-10     such survivor, if any.

3-11                 (7)  That such executor or applicant, or other person

3-12     to whom it is desired that letters be issued, is not disqualified

3-13     by law from accepting letters.

3-14                 (8)  Whether the decedent was ever divorced, and if so,

3-15     when and from whom.

3-16                 (9)  [The social security number of the applicant and

3-17     of the decedent.]

3-18                 [(10)]  Whether the state, a governmental agency of the

3-19     state, or a charitable organization is named by the will as a

3-20     devisee.

3-21           The foregoing matters shall be stated and averred in the

3-22     application to the extent that they are known to the applicant, or

3-23     can with reasonable diligence be ascertained by him, and if any of

3-24     such matters is not stated or averred in the application, the

3-25     application shall set forth the reason why such matter is not so

3-26     stated and averred.

3-27           SECTION 4.  Section 82, Texas Probate Code, is amended to

 4-1     read as follows:


 4-3     ADMINISTRATION.  An application for letters of administration when

 4-4     no will, written or oral, is alleged to exist shall state:

 4-5                 (a)  The name and domicile of the applicant,

 4-6     relationship to the decedent, if any, and that the applicant is not

 4-7     disqualified by law to act as administrator;

 4-8                 (b)  The name and intestacy of the decedent, and the

 4-9     fact, time and place of death;

4-10                 (c)  Facts necessary to show venue in the court to

4-11     which the application is made;

4-12                 (d)  Whether the decedent owned real or personal

4-13     property, with a statement of its probable value;

4-14                 (e)  The name, age, marital status and address, if

4-15     known, and the relationship, if any, of each heir to the decedent;

4-16                 (f)  If known by the applicant at the time of the

4-17     filing of the application, whether children were born to or adopted

4-18     by the decedent, with the name and the date and place of birth of

4-19     each;

4-20                 (g)  If known by the applicant at the time of the

4-21     filing of the application, whether the decedent was ever divorced,

4-22     and if so, when and from whom; and

4-23                 (h)  That a necessity exists for administration of the

4-24     estate, alleging the facts which show such necessity[; and]

4-25                 [(i)  The social security number of the applicant and

4-26     of the decedent if known].

4-27           SECTION 5.  Section 146, Texas Probate Code, is amended by

 5-1     amending Subsection (b) and adding Subsections (d) and (e) to read

 5-2     as follows:

 5-3           (b)  Secured Claims for Money.  Within six months after the

 5-4     date letters are granted or within four months after the date

 5-5     notice is received under Section 295, whichever is later, a

 5-6     creditor with a claim for money secured by real or personal

 5-7     property of the estate must give notice to [notify] the independent

 5-8     executor [by certified or registered mail] of the creditor's

 5-9     election to have the creditor's claim approved as a matured secured

5-10     claim to be paid in due course of administration.  If the election

5-11     is not made, the claim is a preferred debt and lien against the

5-12     specific property securing the indebtedness and shall be paid

5-13     according to the terms of the contract that secured the lien, and

5-14     the claim may not be asserted against other assets of the estate.

5-15     The independent executor may pay the claim before the claim matures

5-16     if paying the claim before maturity is in the best interest of the

5-17     estate.

5-18           (d)  Notice Required of Unsecured Creditor.  An unsecured

5-19     creditor who has a claim for money against an estate and receives a

5-20     notice under  Section 294(d) of this code shall give notice to the

5-21     independent executor of the nature and amount of the claim not

5-22     later than the 120th day after the date on which the notice is

5-23     received, or the claim is barred.

5-24           (e)  Placement of Notice.  Notice required by Subsections (b)

5-25     and (d) of this section must be contained in:

5-26                 (1)  a written instrument that is hand-delivered with

5-27     proof of receipt or mailed by certified mail, return receipt

 6-1     requested, to the independent executor or the executor's attorney;

 6-2                 (2)  a pleading filed in a lawsuit with respect to the

 6-3     claim; or

 6-4                 (3)  a written instrument or pleading filed in the

 6-5     court in which the administration of the estate is pending.

 6-6           SECTION 6.  Section 234(a), Texas Probate Code, is amended to

 6-7     read as follows:

 6-8           (a)  Powers To Be Exercised Under Order of the Court.  The

 6-9     personal representative of the estate of any person may, upon

6-10     application and order authorizing same, renew or extend any

6-11     obligation owing by or to such estate.  When a personal

6-12     representative deems it for the interest of the estate, he may,

6-13     upon written application to the court, and by order granting

6-14     authority:

6-15                 (1)  Purchase or exchange property;

6-16                 (2)  Take claims or property for the use and benefit of

6-17     the estate in payment of any debt due or owing to the estate;

6-18                 (3)  Compound bad or doubtful debts due or owing to the

6-19     estate;

6-20                 (4)  Make compromises or settlements in relation to

6-21     property or claims in dispute or litigation;

6-22                 (5)  Compromise or pay in full any secured claim which

6-23     has been allowed and approved as required by law against the estate

6-24     by conveying to the holder of such claim the real estate or

6-25     personalty securing the same, in full payment, liquidation, and

6-26     satisfaction thereof, and in consideration of cancellation of

6-27     notes, deeds of trust, mortgages, chattel mortgages, or other

 7-1     evidences of liens securing the payment of such claim;

 7-2                 (6)  Abandon the administration of property of the

 7-3     estate that is burdensome or worthless.

 7-4           SECTION 7.  Section 281, Texas Probate Code, is amended to

 7-5     read as follows:


 7-7     exempt property, other than the homestead or any allowance made in

 7-8     lieu thereof, shall be liable for the payment of Class 1 claims

 7-9     [the funeral expenses and the expenses of last sickness of the

7-10     deceased, when claims are presented within the time prescribed

7-11     therefor], but such property shall not be liable for any other

7-12     debts of the estate.

7-13           SECTION 8.  Section 290, Texas Probate Code, is amended to

7-14     read as follows:

7-15           Sec. 290.  FAMILY ALLOWANCE PREFERRED.  The family allowance

7-16     made for the support of the surviving spouse and minor children of

7-17     the deceased shall be paid in preference to all other debts or

7-18     charges against the estate, except Class 1 claims [expenses of the

7-19     funeral and last sickness of the deceased].

7-20           SECTION 9.  Section 299, Texas Probate Code, is amended to

7-21     read as follows:


7-23     general statutes of limitation are tolled on the date:

7-24                 (1)  a claim for money is filed or deposited with the

7-25     clerk

7-26                 [(a)  By filing a claim which is legally allowed and

7-27     approved]; or

 8-1                 (2)  suit is brought against the personal

 8-2     representative of an estate with respect to a claim of the estate

 8-3     that is not required to be presented to the personal representative

 8-4                 [(b)  By bringing a suit upon a rejected and

 8-5     disapproved claim within ninety days after such rejection or

 8-6     disapproval].

 8-7           SECTION 10.  Sections 306(c), (e), and (f), Texas Probate

 8-8     Code, are amended to read  as follows:

 8-9           (c)  Matured Secured Claims.  If a claim has been allowed and

8-10     approved as a matured secured claim under Paragraph (1) of

8-11     Subsection (a) of this section, the claim shall be paid in due

8-12     course of administration and the secured creditor is not entitled

8-13     to exercise any other remedies in a manner that prevents the

8-14     preferential payment of claims [and allowances] described by

8-15     Paragraphs (1) and [through] (3) of Section 320(a) of this code.

8-16           (e)  Payment of Maturities on Preferred Debt and Lien Claims.

8-17     If property securing a claim allowed, approved, and fixed under

8-18     Paragraph (2) of Subsection (a) hereof is not sold or distributed

8-19     within six months from the date letters are granted, the

8-20     representative of the estate shall promptly pay all maturities

8-21     which have accrued on the debt according to the terms thereof, and

8-22     shall perform all the terms of any contract securing same.  If the

8-23     representative defaults in such payment or performance, on

8-24     application of the claimholder, the court shall:

8-25                 (1)  require the sale of said property subject to the

8-26     unmatured part of such debt and apply the proceeds of the sale to

8-27     the liquidation of the maturities;

 9-1                 (2)  require the sale of the property free of the lien

 9-2     and apply the proceeds to the payment of the whole debt; or

 9-3                 (3)  authorize foreclosure by the claimholder as

 9-4     prescribed by Subsections [under Subsection] (f) through (k) of

 9-5     this section.

 9-6           (f)  Foreclosure of Preferred Liens.  An application by a

 9-7     claimholder [If the court authorizes a claimholder] to foreclose

 9-8     the claimholder's lien or security interest on property securing a

 9-9     claim that has been allowed and[,] approved or established by

9-10     suit[,] and fixed under Paragraph (2) of Subsection (a) of this

9-11     section must be[, the claimholder shall file with the court an

9-12     application] supported by affidavit of the claimholder that:

9-13                 (1)  describes the property or part of the property to

9-14     be sold by foreclosure;

9-15                 (2)  describes the amounts of the claimholder's

9-16     outstanding debt;

9-17                 (3)  describes the maturities that have accrued on the

9-18     debt according to the terms of the debt;

9-19                 (4)  describes any other debts secured by a mortgage,

9-20     lien, or security interest against the property that are known by

9-21     the claimholder;

9-22                 (5)  contains a statement that the claimholder has no

9-23     knowledge of the existence of any debts secured by the property

9-24     other than those described by the application; and

9-25                 (6)  requests permission for the claimholder to

9-26     foreclose the claimholder's mortgage, lien, or security interest.

9-27           SECTION 11.  This Act takes effect September 1, 1997, and

 10-1    applies only to the estate of a person who dies on or after that

 10-2    date.  An estate of a person who dies before the effective date of

 10-3    this Act is governed by the law in effect on the date of the

 10-4    person's death, and the former law is continued in effect for that

 10-5    purpose.

 10-6          SECTION 12.  The importance of this legislation and the

 10-7    crowded condition of the calendars in both houses create an

 10-8    emergency and an imperative public necessity that the

 10-9    constitutional rule requiring bills to be read on three several

10-10    days in each house be suspended, and this rule is hereby suspended.