1-1 By: Thompson (Senate Sponsor - Harris) H.B. No. 1852
1-2 (In the Senate - Received from the House May 11, 1999;
1-3 May 12, 1999, read first time and referred to Committee on
1-4 Jurisprudence; May 14, 1999, reported favorably by the following
1-5 vote: Yeas 3, Nays 0; May 14, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the administration of and other matters relating to
1-9 decedents' estates.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 10B, Texas Probate Code, is amended to
1-12 read as follows:
1-13 Sec. 10B. Communications or Records Relating to Decedent's
1-14 Condition Before Death. Notwithstanding the Medical Practice Act
1-15 (Article 4495b, Vernon's Texas Civil Statutes), a person who is a
1-16 party to a will contest or a proceeding in which a party relies on
1-17 the mental or testamentary capacity of a decedent before the
1-18 decedent's death as part of the party's claim or defense is
1-19 entitled to production of all communications or records relevant to
1-20 the decedent's condition before the decedent's death. On receipt
1-21 of a subpoena of communications or records under this section and
1-22 proof of filing of the will contest or proceeding, by file-stamped
1-23 [certified] copy, the appropriate physician, hospital, medical
1-24 facility, custodian of records, or other person in possession of
1-25 the communications or records shall release the communications or
1-26 records to the party requesting the records without further
1-27 authorization.
1-28 SECTION 2. Part 4, Chapter V, Texas Probate Code, is amended
1-29 by adding Section 128B to read as follows:
1-30 Sec. 128B. NOTICE WHEN WILL PROBATED AFTER FOUR YEARS. (a)
1-31 Except as provided by Subsection (b) of this section, an applicant
1-32 for the probate of a will under Section 73(a) of this code must
1-33 give notice by service of process to each of the testator's heirs
1-34 whose address can be ascertained by the applicant with reasonable
1-35 diligence. The notice must be given before the probate of the
1-36 testator's will.
1-37 (b) Notice under Subsection (a) of this section is not
1-38 required to be provided to an heir who has delivered to the court
1-39 an affidavit signed by the heir stating that the heir does not
1-40 object to the offer of the testator's will for probate.
1-41 (c) The notice required by this section and an affidavit
1-42 described by Subsection (b) of this section must also contain a
1-43 statement that:
1-44 (1) the testator's property will pass to the
1-45 testator's heirs if the will is not admitted to probate; and
1-46 (2) the person offering the testator's will for
1-47 probate may not be in default for failing to present the will for
1-48 probate during the four-year period immediately following the
1-49 testator's death.
1-50 (d) If the address of any of the testator's heirs cannot be
1-51 ascertained by the applicant with reasonable diligence, the court
1-52 shall appoint an attorney ad litem to protect the interests of the
1-53 unknown heirs after an application for the probate of a will is
1-54 made under Section 73(a) of this code.
1-55 (e) In the case of an application for the probate of a will
1-56 of a testator who has had another will admitted to probate, this
1-57 section applies to a beneficiary of the testator's probated will
1-58 instead of the testator's heirs.
1-59 SECTION 3. Section 149A(b), Texas Probate Code, is amended
1-60 to read as follows:
1-61 (b) Enforcement of Demand. Should the independent executor
1-62 not comply with a demand for an accounting authorized by this
1-63 section within sixty days after receipt of the demand, the person
1-64 making the demand may compel compliance by an action in the county
2-1 court, as that term is defined by Section 3 of this code [or by a
2-2 suit in the district court]. After a hearing, the court shall
2-3 enter an order requiring the accounting to be made at such time as
2-4 it deems proper under the circumstances.
2-5 SECTION 4. Section 149B(a), Texas Probate Code, is amended
2-6 to read as follows:
2-7 (a) In addition to or in lieu of the right to an accounting
2-8 provided by Section 149A of this code, at any time after the
2-9 expiration of two years from the date that an independent
2-10 administration was created and the order appointing an independent
2-11 executor was entered, a person interested in the estate may
2-12 petition the county court, as that term is defined by Section 3 of
2-13 this code, for an accounting and distribution. [The proceeding for
2-14 an accounting and distribution may be brought in the county court
2-15 if the county judge is licensed to practice law in the State of
2-16 Texas or may be brought in a statutory probate court, a county
2-17 court at law with probate jurisdiction, or a district court of the
2-18 county.] The court may order an accounting to be made with the
2-19 court by the independent executor at such time as the court deems
2-20 proper. The accounting shall include the information that the
2-21 court deems necessary to determine whether any part of the estate
2-22 should be distributed.
2-23 SECTION 5. Section 149C(a), Texas Probate Code, is amended
2-24 to read as follows:
2-25 (a) The county court, as that term is defined by Section 3
2-26 of this code[, a statutory probate court, a county court at law
2-27 with probate jurisdiction, or a district court of the county], on
2-28 its own motion or on motion of any interested person, after the
2-29 independent executor has been cited by personal service to answer
2-30 at a time and place fixed in the notice, may remove an independent
2-31 executor when:
2-32 (1) the independent executor fails to return within
2-33 ninety days after qualification, unless such time is extended by
2-34 order of the court, an inventory of the property of the estate and
2-35 list of claims that have come to his knowledge;
2-36 (2) sufficient grounds appear to support belief that
2-37 he has misapplied or embezzled, or that he is about to misapply or
2-38 embezzle, all or any part of the property committed to his care;
2-39 (3) he fails to make an accounting which is required
2-40 by law to be made;
2-41 (4) he fails to timely file the notice required by
2-42 Section 128A of this code;
2-43 (5) he is proved to have been guilty of gross
2-44 misconduct or gross mismanagement in the performance of his duties;
2-45 or
2-46 (6) he becomes an incapacitated person, or is
2-47 sentenced to the penitentiary, or from any other cause becomes
2-48 legally incapacitated from properly performing his fiduciary
2-49 duties.
2-50 SECTION 6. Part 4, Chapter VI, Texas Probate Code, is
2-51 amended by adding Sections 149D, 149E, 149F, and 149G to read as
2-52 follows:
2-53 Sec. 149D. DISTRIBUTION OF REMAINING ESTATE PENDING JUDICIAL
2-54 DISCHARGE. (a) On or before filing an action under Section 149E
2-55 of this code, the independent executor must distribute to the
2-56 beneficiaries of the estate any of the remaining assets or property
2-57 of the estate that remains in the hands of the independent executor
2-58 after all of the estate's debts have been paid, except for a
2-59 reasonable reserve of assets that the independent executor may
2-60 retain in a fiduciary capacity pending court approval of the final
2-61 account.
2-62 (b) The court may review the amount of assets on reserve and
2-63 may order the independent executor to make further distributions
2-64 under this section.
2-65 Sec. 149E. JUDICIAL DISCHARGE OF INDEPENDENT EXECUTOR. (a)
2-66 After an estate has been administered and if there is no further
2-67 need for an independent administration of the estate, the
2-68 independent executor of the estate may file an action for
2-69 declaratory judgment under Chapter 37, Civil Practice and Remedies
3-1 Code, seeking to discharge the independent executor from any
3-2 liability involving matters relating to the past administration of
3-3 the estate that have been fully and fairly disclosed.
3-4 (b) On the filing of an action under this section, each
3-5 beneficiary of the estate shall be personally served with citation,
3-6 except for a beneficiary who has waived the issuance and service of
3-7 citation.
3-8 (c) In a proceeding under this section, the court may
3-9 require the independent executor to file a final account that
3-10 includes any information the court considers necessary to
3-11 adjudicate the independent executor's request for a discharge of
3-12 liability. The court may audit, settle, or approve a final account
3-13 filed under this subsection.
3-14 Sec. 149F. COURT COSTS AND OTHER CHARGES RELATED TO FINAL
3-15 ACCOUNT IN JUDICIAL DISCHARGE. (a) Except as ordered by the
3-16 court, the independent executor is entitled to pay from the estate
3-17 legal fees, expenses, or other costs of a proceeding incurred in
3-18 relation to a final account required under Section 149E of this
3-19 code.
3-20 (b) The independent executor shall be personally liable to
3-21 refund any amount not approved by the court as a proper charge
3-22 against the estate.
3-23 Sec. 149G. RIGHTS AND REMEDIES CUMULATIVE. The rights and
3-24 remedies conferred by Sections 149D, 149E, and 149F of this code
3-25 are cumulative of other rights and remedies to which a person
3-26 interested in the estate may be entitled under law.
3-27 SECTION 7. Part 3, Chapter VII, Texas Probate Code, is
3-28 amended by adding Sections 221A and 221B to read as follows:
3-29 Sec. 221A. CHANGE OF RESIDENT AGENT. (a) A personal
3-30 representative may change its resident agent to accept service of
3-31 process in a probate proceeding or other action relating to the
3-32 estate by filing a statement of the change titled "Designation of
3-33 Successor Resident Agent" with the court in which the probate
3-34 proceeding is pending. The statement must contain the names and
3-35 addresses of the:
3-36 (1) personal representative;
3-37 (2) resident agent; and
3-38 (3) successor resident agent.
3-39 (b) The designation of a successor resident agent made in a
3-40 statement filed under this section takes effect on the date on
3-41 which the statement is filed with the court.
3-42 Sec. 221B. RESIGNATION OF RESIDENT AGENT. (a) A resident
3-43 agent of a personal representative may resign as the resident agent
3-44 by giving notice to the personal representative and filing with the
3-45 court in which the probate proceeding is pending a statement titled
3-46 "Resignation of Resident Agent" that:
3-47 (1) contains the name of the personal representative;
3-48 (2) contains the address of the personal
3-49 representative most recently known by the resident agent;
3-50 (3) states that notice of the resignation has been
3-51 given to the personal representative and that the personal
3-52 representative has not designated a successor resident agent; and
3-53 (4) contains the date on which the notice of the
3-54 resignation was given to the personal representative.
3-55 (b) The resident agent shall send, by certified mail, return
3-56 receipt requested, a copy of a resignation statement filed under
3-57 Subsection (a) of this section to:
3-58 (1) the personal representative at the address most
3-59 recently known by the agent; and
3-60 (2) each party in the case or the party's attorney or
3-61 other designated representative of record.
3-62 (c) The resignation of a resident agent takes effect on the
3-63 date on which the court enters an order accepting the agent's
3-64 resignation. A court may not enter an order accepting the agent's
3-65 resignation unless the agent complies with the requirements of this
3-66 section.
3-67 SECTION 8. Section 222(a), Texas Probate Code, is amended to
3-68 read as follows:
3-69 (a) Without Notice. (1) The court, on its own motion or on
4-1 motion of any interested person, and without notice, may remove any
4-2 personal representative, appointed under provisions of this Code,
4-3 who:
4-4 (A) Neglects to qualify in the manner and time
4-5 required by law;
4-6 (B) Fails to return within ninety days after
4-7 qualification, unless such time is extended by order of the court,
4-8 an inventory of the property of the estate and list of claims that
4-9 have come to his knowledge;
4-10 (C) Having been required to give a new bond,
4-11 fails to do so within the time prescribed;
4-12 (D) Absents himself from the State for a period
4-13 of three months at one time without permission of the court, or
4-14 removes from the State;
4-15 (E) Cannot be served with notices or other
4-16 processes because of the fact that the:
4-17 (i) personal representative's [by reason
4-18 of the fact that his] whereabouts are unknown;
4-19 (ii) personal representative [, or by
4-20 reason of the fact that he] is eluding service; or
4-21 (iii) personal representative is a
4-22 nonresident of this state who does not have a resident agent to
4-23 accept service of process in any probate proceeding or other action
4-24 relating to the estate; or
4-25 (F) Has misapplied, embezzled, or removed from
4-26 the State, or is about to misapply, embezzle, or remove from the
4-27 State, all or any part of the property committed to the personal
4-28 representative's care.
4-29 (2) The court may remove a personal representative
4-30 under Paragraph (F), Subdivision (1), of this subsection only on
4-31 the presentation of clear and convincing evidence given under oath.
4-32 SECTION 9. Section 270, Texas Probate Code, is amended to
4-33 read as follows:
4-34 Sec. 270. LIABILITY OF HOMESTEAD FOR DEBTS. The homestead
4-35 shall not be liable for the payment of any of the debts of the
4-36 estate, except for:
4-37 (1) the purchase money thereof; [,]
4-38 (2) the taxes due thereon; [, or]
4-39 (3) work and material used in constructing
4-40 improvements thereon if the requirements of Section 50(a)(5),
4-41 Article XVI, Texas Constitution, are met;
4-42 (4) an owelty of partition imposed against the
4-43 entirety of the property by court order or by a written agreement
4-44 of the parties to the partition, including a debt of one spouse in
4-45 favor of the other spouse resulting from a division or an award of
4-46 a family homestead in a divorce proceeding;
4-47 (5) the refinance of a lien against a homestead,
4-48 including a federal tax lien resulting from the tax debt of both
4-49 spouses, if the homestead is a family homestead, or from the tax
4-50 debt of the decedent; or
4-51 (6) an extension of credit on the homestead if the
4-52 requirements of Section 50(a)(6), Article XVI, Texas Constitution,
4-53 are met [; and in this last case only when the work and material
4-54 are contracted for in writing, with the consent of both spouses
4-55 given in the same manner as required in making a sale and
4-56 conveyance of the homestead].
4-57 SECTION 10. Section 378B(a), Texas Probate Code, is amended
4-58 to read as follows:
4-59 (a) Except as provided by Subsection (b) of this section and
4-60 unless the will provides otherwise, all expenses incurred in
4-61 connection with the settlement of a decedent's estate, other than
4-62 interest due on estate taxes, shall be charged against the
4-63 principal of the estate, including debts, funeral expenses, estate
4-64 taxes, [interest and] penalties relating to estate taxes, and
4-65 family allowances[, shall be charged against the principal of the
4-66 estate]. Interest due on estate taxes and fees [Fees] and
4-67 expenses of an attorney, accountant, or other professional advisor,
4-68 commissions and expenses of a personal representative, court costs,
4-69 and all other similar fees or expenses relating to the
5-1 administration of the estate shall be allocated between the income
5-2 and principal of the estate as the executor determines in its
5-3 discretion to be just and equitable.
5-4 SECTION 11. Section 37.005, Civil Practice and Remedies
5-5 Code, is amended to read as follows:
5-6 Sec. 37.005. DECLARATIONS RELATING TO TRUST OR ESTATE. A
5-7 person interested as or through an executor or[,] administrator,
5-8 including an independent executor or administrator, a trustee,
5-9 guardian, other fiduciary, creditor, devisee, legatee, heir, next
5-10 of kin, or cestui que trust in the administration of a trust or of
5-11 the estate of a decedent, an infant, mentally incapacitated
5-12 [disabled] person, or insolvent may have a declaration of rights or
5-13 legal relations in respect to the trust or estate:
5-14 (1) to ascertain any class of creditors, devisees,
5-15 legatees, heirs, next of kin, or others;
5-16 (2) to direct the executors, administrators, or
5-17 trustees to do or abstain from doing any particular act in their
5-18 fiduciary capacity; [or]
5-19 (3) to determine any question arising in the
5-20 administration of the trust or estate, including questions of
5-21 construction of wills and other writings; or
5-22 (4) to determine rights or legal relations of an
5-23 independent executor or independent administrator regarding
5-24 fiduciary fees and the settling of accounts.
5-25 SECTION 12. Sections 221A and 221B, Texas Probate Code, as
5-26 added by this Act, apply only to a change in designation of or a
5-27 resignation of a resident agent made on or after the effective date
5-28 of this Act. The change in designation of or the resignation of a
5-29 resident agent made before the effective date of this Act is
5-30 governed by the law in effect when the change in designation of or
5-31 the resignation of the resident agent occurred, and the former law
5-32 is continued in effect for that purpose.
5-33 SECTION 13. The changes in law made by this Act to Section
5-34 222(a), Texas Probate Code, apply only to a motion for the removal
5-35 of a personal representative made or filed on or after the
5-36 effective date of this Act. A motion for the removal of a personal
5-37 representative made or filed before the effective date of this Act
5-38 is governed by the law in effect on the date the motion was made or
5-39 filed, and the former law is continued in effect for that purpose.
5-40 SECTION 14. The changes in law made by this Act to Section
5-41 378B(a), Texas Probate Code, apply only to the accrual on or after
5-42 the effective date of this Act of interest due on estate taxes.
5-43 The accrual before the effective date of this Act of interest due
5-44 on estate taxes is governed by the law in effect when the interest
5-45 accrued, and the former law is continued in effect for that
5-46 purpose.
5-47 SECTION 15. Except as provided by Sections 12, 13, and 14 of
5-48 this Act, the changes in law made by this Act apply only to the
5-49 estate of a person who dies on or after the effective date of this
5-50 Act. An estate of a person who dies before the effective date of
5-51 this Act is governed by the law in effect on the date of the
5-52 person's death, and the former law is continued in effect for that
5-53 purpose.
5-54 SECTION 16. This Act takes effect September 1, 1999.
5-55 SECTION 17. The importance of this legislation and the
5-56 crowded condition of the calendars in both houses create an
5-57 emergency and an imperative public necessity that the
5-58 constitutional rule requiring bills to be read on three several
5-59 days in each house be suspended, and this rule is hereby suspended.
5-60 * * * * *