SRC-JXG H.B. 1851 76(R)   BILL ANALYSIS


Senate Research Center   H.B. 1851
By: Thompson (Harris)
Jurisprudence
5/6/1999
Engrossed


DIGEST 

Historically, periodic updates are needed in the Probate Code to conform to
new revisions. H.B. 1851 would codify a certain number of suggested
revisions the Real Estate, Probate and Trust Law section of the State Bar
of Texas has identified that are in need of revision. 

PURPOSE

As proposed, H.B. 1851 makes periodic updates needed in the Probate Code.

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 745(c), Probate Code, to authorize that the
guardianship of an estate to be terminated and the assets paid to the
county clerk of the county in which the guardianship proceeding is pending,
when the estate of a minor ward consists only of cash or cash equivalents
in an amount of $50,000, rather than $25,000. 

SECTION 2. Amends Chapter XIIID(4), Probate Code, by adding Sections 760A
and 760B, as follows: 

Sec. 760A. CHANGE OF RESIDENT AGENT. Authorizes a guardian to change its
resident agent to accept service of process in a guardianship proceeding or
other matter relating to the guardianship by filling a statement of the
change entitled "Designation of Successor Resident Agent" with the court in
which the guardianship proceeding is pending. Requires the statement to
contain the names of addresses of the guardian, resident agent, and
successor resident agent. Provides that the designation of a successor
resident agent made in a statement filed under this section takes effect on
the date on which the statement is filed with the court. 

Sec. 760B. RESIGNATION OF RESIDENT AGENT. Authorizes a resident agent of a
guardian to resign as the resident agent by giving notice to the guardian
and filing with the court in which the guardianship proceeding is pending a
statement entitled "Resignation of Resident Agent" that contains certain
information. Requires the resident agent to send, by certified mail, return
receipt requested, a copy of a resignation statement filed under Subsection
(a) of this section to the guardian at the address most recently known by
the agent, and each party in the case or the party's attorney or other
designated representative of record. Provides that the resignation of a
resident agent takes effect on the date on which the court enters an order
accepting the agent's resignation. Prohibits a court from entering an order
accepting the agent's resignation unless the agent complies with the
requirements of this section. 

SECTION 3. Amends Section 761(a), Probate Code, to authorize the court, on
its own motion or on motion of any interested person, to remove any
guardian, appointed under this chapter who cannot be served with notices or
other processes because of the fact that the guardian is a nonresident of
this state who does not have a resident agent to accept services of process
in any guardianship proceeding  or other matter relating to the
guardianship, and other conditions. Makes conforming change. 

SECTION 4. Amends Chapter XIIIM(4), Probate Code, by adding Section 865A,
as follows: 

Sec. 865A. INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE PLANNING PURPOSES.
(a) Authorizes the guardian of the ward's estate to apply to the court for
an order to seek an in camera inspection of a true copy of a will, codicil,
trust, or other estate planning instrument of the ward as a means of
obtaining access to the instrument for purposes of establishing an estate
plan under Section 865 of this code.  

(b) Requires that an application filed under this section to be sworn to by
the guardian, list all of the instruments requested for inspection, and
state one or more reasons supporting the necessity to inspect each
requested instrument for the purpose described by Subsection (a) of this
section.  
 
(c) Requires a person who files an application under this section to send a
copy of the application to certain persons.  

(d) Requires notice required by Subsection (c) of this section to be
delivered by certified mail to a person described by Subsections (c)(2),
(3), (4), or (5) of this section and by registered or certified mail to a
person described by Subsection (c)(1) of this section. Authorizes the
applicant to request that a hearing be held on the application, after the
10th day after the date on which the applicant complies with the notice
requirement. Requires notice of the date, time, and place of the hearing to
be given by the applicant to each person described by Subsection (c)(1) of
this section when court sets a  date for a hearing on the application. 

(e) Requires the court to direct the person that has custody of the
requested will, codicil, trust, or other estate planning instrument, to
deliver a true copy of the instrument to the court for in camera
inspection only, after the conclusion of a hearing on the application and
on a finding that there is good cause for an in camera inspection of a
requested instrument. Requires the court, if good cause exists, to release
all or part of the instrument to the applicant only for the purpose
described by Subsection (a) of this section, after conducting an in camera
review of the instrument.  

(f) Authorizes the court to appoint a guardian ad litem for the ward or an
interested party at any stage of the proceedings if it is considered
advisable for the protection of the ward or the interested party. 

(g) Provides that an attorney does not violate the attorney-client
privilege solely by complying with a court order to release an instrument
subject to this section. Prohibits the supreme court from amending or
adopting rules in conflict with this subsection, notwithstanding Section
22.004, Government Code.  

SECTION 5. Makes application of this Act prospective regarding Section
745(c), Probate Code. 

SECTION 6. Makes application of this Act prospective regarding Sections
760A and 760B, Probate Code. 

SECTION 7. Makes application of this Act prospective regarding Section 761,
Probate Code. 

SECTION 8. Effective date: September 1, 1999.

SECTION 9. Emergency clause.