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