By Thompson H.B. No. 1852
76R14502 CLG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the administration of and other matters relating to
1-3 decedents' estates.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 10B, Texas Probate Code, is amended to
1-6 read as follows:
1-7 Sec. 10B. Communications or Records Relating to Decedent's
1-8 Condition Before Death. Notwithstanding the Medical Practice Act
1-9 (Article 4495b, Vernon's Texas Civil Statutes), a person who is a
1-10 party to a will contest or a proceeding in which a party relies on
1-11 the mental or testamentary capacity of a decedent before the
1-12 decedent's death as part of the party's claim or defense is
1-13 entitled to production of all communications or records relevant to
1-14 the decedent's condition before the decedent's death. On receipt
1-15 of a subpoena of communications or records under this section and
1-16 proof of filing of the will contest or proceeding, by file-stamped
1-17 [certified] copy, the appropriate physician, hospital, medical
1-18 facility, custodian of records, or other person in possession of
1-19 the communications or records shall release the communications or
1-20 records to the party requesting the records without further
1-21 authorization.
1-22 SECTION 2. Part 4, Chapter V, Texas Probate Code, is amended
1-23 by adding Section 128B to read as follows:
1-24 Sec. 128B. NOTICE WHEN WILL PROBATED AFTER FOUR YEARS. (a)
2-1 Except as provided by Subsection (b) of this section, an applicant
2-2 for the probate of a will under Section 73(a) of this code must
2-3 give notice by service of process to each of the testator's heirs
2-4 whose address can be ascertained by the applicant with reasonable
2-5 diligence. The notice must be given before the probate of the
2-6 testator's will.
2-7 (b) Notice under Subsection (a) of this section is not
2-8 required to be provided to an heir who has delivered to the court
2-9 an affidavit signed by the heir stating that the heir does not
2-10 object to the offer of the testator's will for probate.
2-11 (c) The notice required by this section and an affidavit
2-12 described by Subsection (b) of this section must also contain a
2-13 statement that:
2-14 (1) the testator's property will pass to the
2-15 testator's heirs if the will is not admitted to probate; and
2-16 (2) the person offering the testator's will for
2-17 probate may not be in default for failing to present the will for
2-18 probate during the four-year period immediately following the
2-19 testator's death.
2-20 (d) If the address of any of the testator's heirs cannot be
2-21 ascertained by the applicant with reasonable diligence, the court
2-22 shall appoint an attorney ad litem to protect the interests of the
2-23 unknown heirs after an application for the probate of a will is
2-24 made under Section 73(a) of this code.
2-25 (e) In the case of an application for the probate of a will
2-26 of a testator who has had another will admitted to probate, this
2-27 section applies to a beneficiary of the testator's probated will
3-1 instead of the testator's heirs.
3-2 SECTION 3. Section 149A(b), Texas Probate Code, is amended
3-3 to read as follows:
3-4 (b) Enforcement of Demand. Should the independent executor
3-5 not comply with a demand for an accounting authorized by this
3-6 section within sixty days after receipt of the demand, the person
3-7 making the demand may compel compliance by an action in the county
3-8 court, as that term is defined by Section 3 of this code [or by a
3-9 suit in the district court]. After a hearing, the court shall
3-10 enter an order requiring the accounting to be made at such time as
3-11 it deems proper under the circumstances.
3-12 SECTION 4. Section 149B(a), Texas Probate Code, is amended
3-13 to read as follows:
3-14 (a) In addition to or in lieu of the right to an accounting
3-15 provided by Section 149A of this code, at any time after the
3-16 expiration of two years from the date that an independent
3-17 administration was created and the order appointing an independent
3-18 executor was entered, a person interested in the estate may
3-19 petition the county court, as that term is defined by Section 3 of
3-20 this code, for an accounting and distribution. [The proceeding for
3-21 an accounting and distribution may be brought in the county court
3-22 if the county judge is licensed to practice law in the State of
3-23 Texas or may be brought in a statutory probate court, a county
3-24 court at law with probate jurisdiction, or a district court of the
3-25 county.] The court may order an accounting to be made with the
3-26 court by the independent executor at such time as the court deems
3-27 proper. The accounting shall include the information that the
4-1 court deems necessary to determine whether any part of the estate
4-2 should be distributed.
4-3 SECTION 5. Section 149C(a), Texas Probate Code, is amended
4-4 to read as follows:
4-5 (a) The county court, as that term is defined by Section 3
4-6 of this code[, a statutory probate court, a county court at law
4-7 with probate jurisdiction, or a district court of the county], on
4-8 its own motion or on motion of any interested person, after the
4-9 independent executor has been cited by personal service to answer
4-10 at a time and place fixed in the notice, may remove an independent
4-11 executor when:
4-12 (1) the independent executor fails to return within
4-13 ninety days after qualification, unless such time is extended by
4-14 order of the court, an inventory of the property of the estate and
4-15 list of claims that have come to his knowledge;
4-16 (2) sufficient grounds appear to support belief that
4-17 he has misapplied or embezzled, or that he is about to misapply or
4-18 embezzle, all or any part of the property committed to his care;
4-19 (3) he fails to make an accounting which is required
4-20 by law to be made;
4-21 (4) he fails to timely file the notice required by
4-22 Section 128A of this code;
4-23 (5) he is proved to have been guilty of gross
4-24 misconduct or gross mismanagement in the performance of his duties;
4-25 or
4-26 (6) he becomes an incapacitated person, or is
4-27 sentenced to the penitentiary, or from any other cause becomes
5-1 legally incapacitated from properly performing his fiduciary
5-2 duties.
5-3 SECTION 6. Part 4, Chapter VI, Texas Probate Code, is
5-4 amended by adding Sections 149D, 149E, 149F, and 149G to read as
5-5 follows:
5-6 Sec. 149D. DISTRIBUTION OF REMAINING ESTATE PENDING JUDICIAL
5-7 DISCHARGE. (a) On or before filing an action under Section 149E
5-8 of this code, the independent executor must distribute to the
5-9 beneficiaries of the estate any of the remaining assets or property
5-10 of the estate that remains in the hands of the independent executor
5-11 after all of the estate's debts have been paid, except for a
5-12 reasonable reserve of assets that the independent executor may
5-13 retain in a fiduciary capacity pending court approval of the final
5-14 account.
5-15 (b) The court may review the amount of assets on reserve and
5-16 may order the independent executor to make further distributions
5-17 under this section.
5-18 Sec. 149E. JUDICIAL DISCHARGE OF INDEPENDENT EXECUTOR. (a)
5-19 After an estate has been administered and if there is no further
5-20 need for an independent administration of the estate, the
5-21 independent executor of the estate may file an action for
5-22 declaratory judgment under Chapter 37, Civil Practice and Remedies
5-23 Code, seeking to discharge the independent executor from any
5-24 liability involving matters relating to the past administration of
5-25 the estate that have been fully and fairly disclosed.
5-26 (b) On the filing of an action under this section, each
5-27 beneficiary of the estate shall be personally served with citation,
6-1 except for a beneficiary who has waived the issuance and service of
6-2 citation.
6-3 (c) In a proceeding under this section, the court may
6-4 require the independent executor to file a final account that
6-5 includes any information the court considers necessary to
6-6 adjudicate the independent executor's request for a discharge of
6-7 liability. The court may audit, settle, or approve a final account
6-8 filed under this subsection.
6-9 Sec. 149F. COURT COSTS AND OTHER CHARGES RELATED TO FINAL
6-10 ACCOUNT IN JUDICIAL DISCHARGE. (a) Except as ordered by the
6-11 court, the independent executor is entitled to pay from the estate
6-12 legal fees, expenses, or other costs of a proceeding incurred in
6-13 relation to a final account required under Section 149E of this
6-14 code.
6-15 (b) The independent executor shall be personally liable to
6-16 refund any amount not approved by the court as a proper charge
6-17 against the estate.
6-18 Sec. 149G. RIGHTS AND REMEDIES CUMULATIVE. The rights and
6-19 remedies conferred by Sections 149D, 149E, and 149F of this code
6-20 are cumulative of other rights and remedies to which a person
6-21 interested in the estate may be entitled under law.
6-22 SECTION 7. Part 3, Chapter VII, Texas Probate Code, is
6-23 amended by adding Sections 221A and 221B to read as follows:
6-24 Sec. 221A. CHANGE OF RESIDENT AGENT. (a) A personal
6-25 representative may change its resident agent to accept service of
6-26 process in a probate proceeding or other action relating to the
6-27 estate by filing a statement of the change titled "Designation of
7-1 Successor Resident Agent" with the court in which the probate
7-2 proceeding is pending. The statement must contain the names and
7-3 addresses of the:
7-4 (1) personal representative;
7-5 (2) resident agent; and
7-6 (3) successor resident agent.
7-7 (b) The designation of a successor resident agent made in a
7-8 statement filed under this section takes effect on the date on
7-9 which the statement is filed with the court.
7-10 Sec. 221B. RESIGNATION OF RESIDENT AGENT. (a) A resident
7-11 agent of a personal representative may resign as the resident agent
7-12 by giving notice to the personal representative and filing with the
7-13 court in which the probate proceeding is pending a statement titled
7-14 "Resignation of Resident Agent" that:
7-15 (1) contains the name of the personal representative;
7-16 (2) contains the address of the personal
7-17 representative most recently known by the resident agent;
7-18 (3) states that notice of the resignation has been
7-19 given to the personal representative and that the personal
7-20 representative has not designated a successor resident agent; and
7-21 (4) contains the date on which the notice of the
7-22 resignation was given to the personal representative.
7-23 (b) The resident agent shall send, by certified mail, return
7-24 receipt requested, a copy of a resignation statement filed under
7-25 Subsection (a) of this section to:
7-26 (1) the personal representative at the address most
7-27 recently known by the agent; and
8-1 (2) each party in the case or the party's attorney or
8-2 other designated representative of record.
8-3 (c) The resignation of a resident agent takes effect on the
8-4 date on which the court enters an order accepting the agent's
8-5 resignation. A court may not enter an order accepting the agent's
8-6 resignation unless the agent complies with the requirements of this
8-7 section.
8-8 SECTION 8. Section 222(a), Texas Probate Code, is amended to
8-9 read as follows:
8-10 (a) Without Notice. (1) The court, on its own motion or on
8-11 motion of any interested person, and without notice, may remove any
8-12 personal representative, appointed under provisions of this Code,
8-13 who:
8-14 (A) Neglects to qualify in the manner and time
8-15 required by law;
8-16 (B) Fails to return within ninety days after
8-17 qualification, unless such time is extended by order of the court,
8-18 an inventory of the property of the estate and list of claims that
8-19 have come to his knowledge;
8-20 (C) Having been required to give a new bond,
8-21 fails to do so within the time prescribed;
8-22 (D) Absents himself from the State for a period
8-23 of three months at one time without permission of the court, or
8-24 removes from the State;
8-25 (E) Cannot be served with notices or other
8-26 processes because of the fact that the:
8-27 (i) personal representative's [by reason
9-1 of the fact that his] whereabouts are unknown;
9-2 (ii) personal representative [, or by
9-3 reason of the fact that he] is eluding service; or
9-4 (iii) personal representative is a
9-5 nonresident of this state who does not have a resident agent to
9-6 accept service of process in any probate proceeding or other action
9-7 relating to the estate; or
9-8 (F) Has misapplied, embezzled, or removed from
9-9 the State, or is about to misapply, embezzle, or remove from the
9-10 State, all or any part of the property committed to the personal
9-11 representative's care.
9-12 (2) The court may remove a personal representative
9-13 under Paragraph (F), Subdivision (1), of this subsection only on
9-14 the presentation of clear and convincing evidence given under oath.
9-15 SECTION 9. Section 270, Texas Probate Code, is amended to
9-16 read as follows:
9-17 Sec. 270. LIABILITY OF HOMESTEAD FOR DEBTS. The homestead
9-18 shall not be liable for the payment of any of the debts of the
9-19 estate, except for:
9-20 (1) the purchase money thereof; [,]
9-21 (2) the taxes due thereon; [, or]
9-22 (3) work and material used in constructing
9-23 improvements thereon if the requirements of Section 50(a)(5),
9-24 Article XVI, Texas Constitution, are met;
9-25 (4) an owelty of partition imposed against the
9-26 entirety of the property by court order or by a written agreement
9-27 of the parties to the partition, including a debt of one spouse in
10-1 favor of the other spouse resulting from a division or an award of
10-2 a family homestead in a divorce proceeding;
10-3 (5) the refinance of a lien against a homestead,
10-4 including a federal tax lien resulting from the tax debt of both
10-5 spouses, if the homestead is a family homestead, or from the tax
10-6 debt of the decedent; or
10-7 (6) an extension of credit on the homestead if the
10-8 requirements of Section 50(a)(6), Article XVI, Texas Constitution,
10-9 are met [; and in this last case only when the work and material
10-10 are contracted for in writing, with the consent of both spouses
10-11 given in the same manner as required in making a sale and
10-12 conveyance of the homestead].
10-13 SECTION 10. Section 378B(a), Texas Probate Code, is amended
10-14 to read as follows:
10-15 (a) Except as provided by Subsection (b) of this section and
10-16 unless the will provides otherwise, all expenses incurred in
10-17 connection with the settlement of a decedent's estate, other than
10-18 interest due on estate taxes, shall be charged against the
10-19 principal of the estate, including debts, funeral expenses, estate
10-20 taxes, [interest and] penalties relating to estate taxes, and
10-21 family allowances[, shall be charged against the principal of the
10-22 estate]. Interest due on estate taxes and fees [Fees] and
10-23 expenses of an attorney, accountant, or other professional advisor,
10-24 commissions and expenses of a personal representative, court costs,
10-25 and all other similar fees or expenses relating to the
10-26 administration of the estate shall be allocated between the income
10-27 and principal of the estate as the executor determines in its
11-1 discretion to be just and equitable.
11-2 SECTION 11. Section 37.005, Civil Practice and Remedies
11-3 Code, is amended to read as follows:
11-4 Sec. 37.005. DECLARATIONS RELATING TO TRUST OR ESTATE. A
11-5 person interested as or through an executor or[,] administrator,
11-6 including an independent executor or administrator, a trustee,
11-7 guardian, other fiduciary, creditor, devisee, legatee, heir, next
11-8 of kin, or cestui que trust in the administration of a trust or of
11-9 the estate of a decedent, an infant, mentally incapacitated
11-10 [disabled] person, or insolvent may have a declaration of rights or
11-11 legal relations in respect to the trust or estate:
11-12 (1) to ascertain any class of creditors, devisees,
11-13 legatees, heirs, next of kin, or others;
11-14 (2) to direct the executors, administrators, or
11-15 trustees to do or abstain from doing any particular act in their
11-16 fiduciary capacity; [or]
11-17 (3) to determine any question arising in the
11-18 administration of the trust or estate, including questions of
11-19 construction of wills and other writings; or
11-20 (4) to determine rights or legal relations of an
11-21 independent executor or independent administrator regarding
11-22 fiduciary fees and the settling of accounts.
11-23 SECTION 12. Sections 221A and 221B, Texas Probate Code, as
11-24 added by this Act, apply only to a change in designation of or a
11-25 resignation of a resident agent made on or after the effective date
11-26 of this Act. The change in designation of or the resignation of a
11-27 resident agent made before the effective date of this Act is
12-1 governed by the law in effect when the change in designation of or
12-2 the resignation of the resident agent occurred, and the former law
12-3 is continued in effect for that purpose.
12-4 SECTION 13. The changes in law made by this Act to Section
12-5 222(a), Texas Probate Code, apply only to a motion for the removal
12-6 of a personal representative made or filed on or after the
12-7 effective date of this Act. A motion for the removal of a personal
12-8 representative made or filed before the effective date of this Act
12-9 is governed by the law in effect on the date the motion was made or
12-10 filed, and the former law is continued in effect for that purpose.
12-11 SECTION 14. The changes in law made by this Act to Section
12-12 378B(a), Texas Probate Code, apply only to the accrual on or after
12-13 the effective date of this Act of interest due on estate taxes.
12-14 The accrual before the effective date of this Act of interest due
12-15 on estate taxes is governed by the law in effect when the interest
12-16 accrued, and the former law is continued in effect for that
12-17 purpose.
12-18 SECTION 15. Except as provided by Sections 12, 13, and 14 of
12-19 this Act, the changes in law made by this Act apply only to the
12-20 estate of a person who dies on or after the effective date of this
12-21 Act. An estate of a person who dies before the effective date of
12-22 this Act is governed by the law in effect on the date of the
12-23 person's death, and the former law is continued in effect for that
12-24 purpose.
12-25 SECTION 16. This Act takes effect September 1, 1999.
12-26 SECTION 17. The importance of this legislation and the
12-27 crowded condition of the calendars in both houses create an
13-1 emergency and an imperative public necessity that the
13-2 constitutional rule requiring bills to be read on three several
13-3 days in each house be suspended, and this rule is hereby suspended.