By Thompson H.B. No. 1852
76R1876 CLG-D
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. Section 89A(a), Texas Probate Code, is amended to
1-5 read as follows:
1-6 (a) A written will shall, if within the control of the
1-7 applicant, be filed with the application for probate as a muniment
1-8 of title, and shall remain in the custody of the county clerk
1-9 unless removed from the custody of the clerk by order of a proper
1-10 court. An application for probate of a will as a muniment of title
1-11 shall state:
1-12 (1) The name and domicile of each applicant.
1-13 (2) The name, age if known, and domicile of the
1-14 decedent, and the fact, time, and place of death.
1-15 (3) Facts showing that the court has venue.
1-16 (4) That the decedent owned real or personal property,
1-17 or both, describing the property generally, and stating its
1-18 probable value.
1-19 (5) The date of the will, the name and residence of
1-20 the executor named in the will, if any, and the names and
1-21 residences of the subscribing witnesses, if any.
1-22 (6) Whether a child or children born or adopted after
1-23 the making of such will survived the decedent, and the name of each
1-24 such survivor, if any.
2-1 (7) That there are no unpaid debts owing by the estate
2-2 of the testator, excluding debts secured by liens on real estate,
2-3 or that there is no other reason why an administration of the
2-4 estate is necessary.
2-5 (8) Whether the decedent was ever divorced, and if so,
2-6 when and from whom.
2-7 (9) [The social security number of the applicant and
2-8 of the decedent.]
2-9 [(10)] Whether the state, a governmental agency of the
2-10 state, or a charitable organization is named by the will as a
2-11 devisee.
2-12 The foregoing matters shall be stated and averred in the
2-13 application to the extent that they are known to the applicant, or
2-14 can with reasonable diligence be ascertained by the applicant, and
2-15 if any of such matters is not stated or averred in the application,
2-16 the application shall set forth the reason why such matter is not
2-17 so stated and averred.
2-18 SECTION 2. Section 89B(a), Texas Probate Code, is amended to
2-19 read as follows:
2-20 (a) General Proof. Whenever an applicant seeks to probate a
2-21 will as a muniment of title, the applicant must first prove to the
2-22 satisfaction of the court:
2-23 (1) That the person is dead, and if on the date on
2-24 which the application is filed, the person has been dead more than
2-25 [that] four years, that the applicant has met the requirements of
2-26 Section 73 of this code [have not elapsed since the person's death
2-27 and prior to the application]; and
3-1 (2) That the court has jurisdiction and venue over the
3-2 estate; and
3-3 (3) That citation has been served and returned in the
3-4 manner and for the length of time required by this Code; and
3-5 (4) That there are no unpaid debts owing by the estate
3-6 of the testator, excluding debts secured by liens on real estate,
3-7 or that there is no other reason why an administration of the
3-8 estate is necessary.
3-9 SECTION 3. Part 4, Chapter VI, Texas Probate Code, is
3-10 amended by adding Sections 149D, 149E, 149F, and 149G to read as
3-11 follows:
3-12 Sec. 149D. DISTRIBUTION OF REMAINING ESTATE PENDING FINAL
3-13 ACCOUNT. (a) On or before filing a verified final account under
3-14 Section 149E of this code, the independent executor must distribute
3-15 to the beneficiaries of the estate any of the remaining assets or
3-16 property of the estate that remains in the hands of the independent
3-17 executor after all of the estate's debts have been paid, except for
3-18 a reasonable reserve of assets that the independent administrator
3-19 may retain in a fiduciary capacity pending court approval of the
3-20 final account.
3-21 (b) The court may review the amount of assets on reserve and
3-22 may order the independent executor to make further distributions
3-23 under this section.
3-24 Sec. 149E. CLOSING INDEPENDENT ADMINISTRATION ON FINAL
3-25 ACCOUNTING. (a) When an independent administration is to be
3-26 settled and closed, an independent executor may file with the court
3-27 a verified final account and request a discharge from any liability
4-1 that may be imposed for acts performed as an independent executor.
4-2 A verified final account filed under this section must include:
4-3 (1) the property of the estate that came into the
4-4 hands of the independent executor, which may be described by
4-5 reference to the inventory of the property of the estate required
4-6 to be returned by the independent executor under this code rather
4-7 than by particular item;
4-8 (2) the debts of the estate that have been paid;
4-9 (3) any outstanding debts of the estate;
4-10 (4) a complete account of receipts regarding the
4-11 property of the estate;
4-12 (5) a complete account of disbursements regarding the
4-13 property of the estate;
4-14 (6) any property of the estate remaining in the hands
4-15 of the independent executor after all of the estate's debts have
4-16 been paid;
4-17 (7) the names and residences of each person to whom
4-18 any property described by Subdivision (6) of this subsection has
4-19 been or should be distributed and the amount of property
4-20 distributed or to be distributed to each person;
4-21 (8) if the property of the estate described by
4-22 Subdivision (6) of this subsection is to be distributed in a manner
4-23 that is not pro rata, a description of the assets distributed or to
4-24 be distributed to each person described by Subdivision (7) of this
4-25 subsection; and
4-26 (9) other facts as necessary to have a complete
4-27 understanding of the exact condition of the estate.
5-1 (b) On filing a final account under this section, the
5-2 independent executor shall send notice of the filing to each
5-3 person interested in the estate known to the independent executor.
5-4 Notice of the filing must:
5-5 (1) be sent by certified or registered mail, return
5-6 receipt requested;
5-7 (2) be accompanied by a copy of the final account; and
5-8 (3) state that unless the person makes an objection to
5-9 the final account not later than the 90th day after the date on
5-10 which the person receives the notice, the independent executor will
5-11 be discharged from further liability as prescribed by this section.
5-12 (c) Notice required by Subsection (b) of this section may be
5-13 waived by a person entitled to receive the notice. The independent
5-14 executor shall file with the court a copy of the notice and proof
5-15 of delivery made to each person or of a waiver of notice received
5-16 under this section.
5-17 (d) If an objection to the final account is not made by an
5-18 interested party within the time prescribed by Subsection (b) of
5-19 this section, the court, without further examination of the final
5-20 account, shall enter an order approving the final account and
5-21 discharging the independent executor from any liability relating to
5-22 a completely disclosed transaction in the final account.
5-23 (e) If an objection to the final account or to the discharge
5-24 of the independent executor is made by an interested party within
5-25 the prescribed time, the court shall conduct a hearing to examine
5-26 the final account. After the hearing, the court shall enter an
5-27 order that:
6-1 (1) audits and settles the final account;
6-2 (2) audits and settles the final account after the
6-3 court restates the final account; or
6-4 (3) after the court audits the final account, requires
6-5 the independent executor to restate the final account before the
6-6 court settles the final account.
6-7 (f) If the independent executor retains any of the estate's
6-8 assets under Section 149D(a) of this code, the court, on settlement
6-9 of the final account, shall order a partition and distribution of
6-10 the assets to be made to the beneficiaries of the estate.
6-11 Sec. 149F. COURT COSTS AND OTHER EXPENSES RELATED TO FINAL
6-12 ACCOUNT. (a) In a proceeding under Section 149E of this code, the
6-13 court may award, as the court considers equitable, fees and costs
6-14 incurred by the independent executor or a beneficiary with respect
6-15 to the final account.
6-16 (b) If the court approves the final account without
6-17 objection, the independent executor's legal fees, expenses, and
6-18 other costs of the proceeding specified in the final account shall
6-19 be charged to the estate as an administrative expense.
6-20 (c) If the court upholds an objection made to the final
6-21 account or to the discharge of the independent executor's liability
6-22 or if the court finds that the independent executor should not be
6-23 discharged from liability under this section, the court may
6-24 determine what portion, if any, of the legal fees, expenses, and
6-25 other costs of the proceeding shall be charged to the estate.
6-26 (d) Except as ordered by the court, the independent executor
6-27 is entitled to pay from the estate legal fees, expenses, or other
7-1 costs of a proceeding incurred in relation to the final account.
7-2 (e) The independent executor shall be personally liable to
7-3 refund any amount not approved by the court as a proper charge
7-4 against the estate.
7-5 Sec. 149G. RIGHTS AND REMEDIES CUMULATIVE. The rights and
7-6 remedies conferred by Sections 149D, 149E, and 149F of this code
7-7 are cumulative of other rights and remedies to which a person
7-8 interested in the estate may be entitled under law.
7-9 SECTION 4. Part 3, Chapter VII, Texas Probate Code, is
7-10 amended by adding Sections 221A and 221B to read as follows:
7-11 Sec. 221A. CHANGE OF RESIDENT AGENT. (a) A personal
7-12 representative may change its resident agent to accept service of
7-13 process in a probate proceeding or other action relating to the
7-14 estate by filing a statement of the change entitled "Designation of
7-15 Successor Resident Agent" with the court in which the probate
7-16 proceeding is pending. The statement must contain the names and
7-17 addresses of the:
7-18 (1) personal representative;
7-19 (2) resident agent; and
7-20 (3) successor resident agent.
7-21 (b) The designation of a successor resident agent made in a
7-22 statement filed under this section takes effect on the date on
7-23 which the statement is filed with the court.
7-24 Sec. 221B. RESIGNATION OF RESIDENT AGENT. (a) A resident
7-25 agent of a personal representative may resign as the resident agent
7-26 by giving notice to the personal representative and filing with the
7-27 court in which the probate proceeding is pending a statement
8-1 entitled "Resignation of Resident Agent" that:
8-2 (1) contains the name of the personal representative;
8-3 (2) contains the address of the personal
8-4 representative most recently known by the resident agent;
8-5 (3) states that notice of the resignation has been
8-6 given to the personal representative and that the personal
8-7 representative has not designated a successor resident agent; and
8-8 (4) contains the date on which the notice of the
8-9 resignation was given to the personal representative.
8-10 (b) The resident agent shall send, by certified mail, return
8-11 receipt requested, a copy of a resignation statement filed under
8-12 Subsection (a) of this section to:
8-13 (1) the personal representative at the address most
8-14 recently known by the agent; and
8-15 (2) each party in the case or the party's attorney or
8-16 other designated representative of record.
8-17 (c) The resignation of a resident agent takes effect on the
8-18 date on which the court enters an order accepting the agent's
8-19 resignation. A court may not enter an order accepting the agent's
8-20 resignation unless the agent complies with the requirements of this
8-21 section.
8-22 SECTION 5. Section 222(a), Texas Probate Code, is amended to
8-23 read as follows:
8-24 (a) Without Notice. (1) The court, on its own motion or on
8-25 motion of any interested person, and without notice, may remove any
8-26 personal representative, appointed under provisions of this Code,
8-27 who:
9-1 (A) Neglects to qualify in the manner and time
9-2 required by law;
9-3 (B) Fails to return within ninety days after
9-4 qualification, unless such time is extended by order of the court,
9-5 an inventory of the property of the estate and list of claims that
9-6 have come to his knowledge;
9-7 (C) Having been required to give a new bond,
9-8 fails to do so within the time prescribed;
9-9 (D) Absents himself from the State for a period
9-10 of three months at one time without permission of the court, or
9-11 removes from the State;
9-12 (E) Cannot be served with notices or other
9-13 processes because of the fact that the:
9-14 (i) personal representative's [by reason
9-15 of the fact that his] whereabouts are unknown;
9-16 (ii) personal representative [, or by
9-17 reason of the fact that he] is eluding service; or
9-18 (iii) personal representative is a
9-19 nonresident of this state who does not have a resident agent to
9-20 accept service of process in any probate proceeding or other action
9-21 relating to the estate; or
9-22 (F) Has misapplied, embezzled, or removed from
9-23 the State, or is about to misapply, embezzle, or remove from the
9-24 State, all or any part of the property committed to the personal
9-25 representative's care.
9-26 (2) The court may remove a personal representative
9-27 under Paragraph (F), Subdivision (1), of this subsection only on
10-1 the presentation of clear and convincing evidence given under oath.
10-2 SECTION 6. Section 270, Texas Probate Code, is amended to
10-3 read as follows:
10-4 Sec. 270. LIABILITY OF HOMESTEAD FOR DEBTS. The homestead
10-5 shall not be liable for the payment of any of the debts of the
10-6 estate, except for:
10-7 (1) the purchase money thereof; [,]
10-8 (2) the taxes due thereon; [, or]
10-9 (3) work and material used in constructing
10-10 improvements thereon if the requirements of Section 50(a)(5),
10-11 Article XVI, Texas Constitution, are met;
10-12 (4) an owelty of partition imposed against the
10-13 entirety of the property by court order or by a written agreement
10-14 of the parties to the partition, including a debt of one spouse in
10-15 favor of the other spouse resulting from a division or an award of
10-16 a family homestead in a divorce proceeding;
10-17 (5) the refinance of a lien against a homestead,
10-18 including a federal tax lien resulting from the tax debt of both
10-19 spouses, if the homestead is a family homestead, or from the tax
10-20 debt of the decedent; or
10-21 (6) an extension of credit on the homestead if the
10-22 requirements of Section 50(a)(6), Article XVI, Texas Constitution,
10-23 are met [; and in this last case only when the work and material
10-24 are contracted for in writing, with the consent of both spouses
10-25 given in the same manner as required in making a sale and
10-26 conveyance of the homestead].
10-27 SECTION 7. Section 378B(a), Texas Probate Code, is amended
11-1 to read as follows:
11-2 (a) Except as provided by Subsection (b) of this section and
11-3 unless the will provides otherwise, all expenses incurred in
11-4 connection with the settlement of a decedent's estate, other than
11-5 interest due on estate taxes, shall be charged against the
11-6 principal of the estate, including debts, funeral expenses, estate
11-7 taxes, [interest and] penalties relating to estate taxes, and
11-8 family allowances[, shall be charged against the principal of the
11-9 estate]. Interest due on estate taxes and fees [Fees] and
11-10 expenses of an attorney, accountant, or other professional advisor,
11-11 commissions and expenses of a personal representative, court costs,
11-12 and all other similar fees or expenses relating to the
11-13 administration of the estate shall be allocated between the income
11-14 and principal of the estate as the executor determines in its
11-15 discretion to be just and equitable.
11-16 SECTION 8. The changes in law made by this Act to Sections
11-17 89A(a) and 89B(a), Texas Probate Code, apply only to an application
11-18 to probate a will as a muniment of title filed on or after the
11-19 effective date of this Act. An application to probate a will as a
11-20 muniment of title filed before the effective date of this Act is
11-21 governed by the law in effect on the date the application was
11-22 filed, and the former law is continued in effect for that purpose.
11-23 SECTION 9. 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 10. 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 11. 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 12. Except as provided by Sections 8, 9, 10, and 11
12-19 of 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 13. This Act takes effect September 1, 1999.
12-26 SECTION 14. 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.