1-1 By: Thompson (Senate Sponsor - Harris) H.B. No. 1037
1-2 (In the Senate - Received from the House April 2, 2001;
1-3 April 3, 2001, read first time and referred to Committee on
1-4 Jurisprudence; May 10, 2001, reported favorably by the following
1-5 vote: Yeas 4, Nays 0; May 10, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to jurisdiction of a court over certain matters related to
1-9 the ward's estate after a ward's guardianship is settled.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 606, Texas Probate Code, is amended by
1-12 amending Subsections (e) and (f) and adding Subsection (g) to read
1-13 as follows:
1-14 (e) A court that exercises original probate jurisdiction has
1-15 the power to hear all matters incident to an estate. After a
1-16 guardianship of the estate of a ward is required to be settled as
1-17 provided by Section 745 of this chapter, the court exercising
1-18 original probate jurisdiction over the settling of the former
1-19 ward's estate has the jurisdiction to hear:
1-20 (1) an action brought by or on behalf of the former
1-21 ward against a former guardian of the ward for alleged misconduct
1-22 arising from the performance of the person's duties as guardian;
1-23 (2) an action against a former guardian of the former
1-24 ward that is brought by a surety that is called on to perform in
1-25 place of the former guardian;
1-26 (3) a claim for the payment of compensation, expenses,
1-27 and court costs and any other matter authorized under Subpart H,
1-28 Part 2, of this chapter;
1-29 (4) a matter related to an authorization made or duty
1-30 performed by a guardian under Subpart C, Part 4, of this chapter;
1-31 and
1-32 (5) any other matter related or appertaining to a
1-33 guardianship estate that a court exercising original probate
1-34 jurisdiction is specifically authorized to hear under this chapter.
1-35 (f) When a surety is called on to perform in place of a
1-36 guardian or former guardian, a court exercising original probate
1-37 jurisdiction, including jurisdiction exercised under Subsection
1-38 (e)(2) of this section, may award judgment against the guardian or
1-39 former guardian in favor of the surety of the guardian or former
1-40 guardian in the same suit[, even if the ward has died, regained
1-41 capacity, or the ward's disabilities of minority have been
1-42 removed].
1-43 (g) [(f)] A final order of a court that exercises original
1-44 probate jurisdiction is appealable to a court of appeals.
1-45 SECTION 2. Section 694G, Texas Probate Code, is amended to
1-46 read as follows:
1-47 Sec. 694G. ORDER OF COMPLETE RESTORATION OF WARD'S CAPACITY.
1-48 If the court finds that a ward is no longer an incapacitated
1-49 person, the order completely restoring the ward's capacity must
1-50 contain findings of fact and specify:
1-51 (1) the information required by Section 694J of this
1-52 code;
1-53 (2) that the ward is no longer an incapacitated
1-54 person;
1-55 (3) that there is no further need for a guardianship
1-56 of the person or estate of the ward;
1-57 (4) that the guardian is required to:
1-58 (A) immediately settle [and close] the
1-59 guardianship in accordance with [Section 745 of] this chapter
1-60 [code]; and
1-61 (B) deliver all of the remaining guardianship
1-62 estate to the ward; and
1-63 (5) that the clerk shall revoke letters of
1-64 guardianship when the guardianship is finally settled and closed.
2-1 SECTION 3. The heading to Section 745, Texas Probate Code,
2-2 is amended to read as follows:
2-3 Sec. 745. SETTLING [CLOSING] GUARDIANSHIPS OF THE ESTATE.
2-4 SECTION 4. Sections 745(a) and (d), Texas Probate Code, are
2-5 amended to read as follows:
2-6 (a) A guardianship of the estate of a ward shall be [is]
2-7 settled [and closed] when:
2-8 (1) a minor ward dies or becomes an adult by becoming
2-9 18 years of age, or by removal of disabilities of minority
2-10 according to the law of this state, or by marriage;
2-11 (2) an incapacitated ward dies, or is decreed as
2-12 provided by law to have been restored to full legal capacity;
2-13 (3) the spouse of a married ward has qualified as
2-14 survivor in community and the ward owns no separate property;
2-15 (4) the estate of a ward becomes exhausted;
2-16 (5) the foreseeable income accruing to a ward or to
2-17 his estate is so negligible that maintaining the guardianship in
2-18 force would be burdensome;
2-19 (6) all of the assets of the estate have been placed
2-20 in a management trust under Subpart N, Part 4, of this code and the
2-21 court determines that a guardianship for the ward is no longer
2-22 necessary; or
2-23 (7) the court determines for any other reason that a
2-24 guardianship for the ward is no longer necessary.
2-25 (d) In the settlement [and closing] of a guardianship, the
2-26 court may appoint an attorney ad litem to represent the interests
2-27 of the ward, and may allow the attorney reasonable compensation for
2-28 services provided by the attorney out of the ward's estate.
2-29 SECTION 5. Section 746, Texas Probate Code, is amended to
2-30 read as follows:
2-31 Sec. 746. PAYMENT OF FUNERAL EXPENSES AND OTHER DEBTS ON
2-32 DEATH OF WARD. Before [Notwithstanding Section 745 of this code,
2-33 before] the guardianship of a person or estate of a ward is closed
2-34 on the death of a ward, the guardian, subject to the approval of
2-35 the court, may make all funeral arrangements, pay for the funeral
2-36 expenses out of the estate of the deceased ward, and pay all other
2-37 debts out of the estate. If a personal representative of the
2-38 estate of a deceased ward is appointed, the court shall on the
2-39 written complaint of the personal representative cause the guardian
2-40 to be cited to appear and present a final account as provided in
2-41 Section 749 of this code.
2-42 SECTION 6. Section 747(a), Texas Probate Code, is amended to
2-43 read as follows:
2-44 (a) When the guardianship of an incapacitated person is
2-45 required to be settled [and closed] as provided by Section 745 of
2-46 this code, the guardian of the person shall deliver all property of
2-47 the ward in the possession or control of the guardian to the
2-48 emancipated ward or other person entitled to the property. If the
2-49 ward is deceased, the guardian shall deliver the property to the
2-50 personal representative of the deceased ward's estate or other
2-51 person entitled to the property.
2-52 SECTION 7. Section 749, Texas Probate Code, is amended to
2-53 read as follows:
2-54 Sec. 749. ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS.
2-55 When a guardianship of the estate is required to be settled [and
2-56 closed], the guardian shall present to the court the guardian's
2-57 verified account for final settlement. In the account it shall be
2-58 sufficient to refer to the inventory without describing each item
2-59 of property in detail and to refer to and adopt any and all
2-60 guardianship proceedings that concern sales, renting or hiring,
2-61 leasing for mineral development, or any other transaction on behalf
2-62 of the guardianship estate, including an exhibit, account, or
2-63 voucher previously filed and approved, without restating the
2-64 particular items. Each final account shall be accompanied by
2-65 proper vouchers in support of each item not already accounted for
2-66 and shall show, either by reference to any proceedings authorized
2-67 above or by statement of the facts:
2-68 (1) the property, rents, revenues, and profits
2-69 received by the guardian, and belonging to the ward, during the
3-1 term of the guardianship;
3-2 (2) the disposition made of the property, rents,
3-3 revenues, and profits;
3-4 (3) the expenses and debts against the estate that
3-5 remain unpaid, if any;
3-6 (4) the property of the estate that remains in the
3-7 hands of the guardian, if any;
3-8 (5) that the guardian has paid all required bond
3-9 premiums;
3-10 (6) the tax returns the guardian has filed during the
3-11 guardianship;
3-12 (7) the amount of taxes the ward owed during the
3-13 guardianship that the guardian has paid;
3-14 (8) a complete account of the taxes the guardian has
3-15 paid during the guardianship, including the amount of the taxes,
3-16 the date the guardian paid the taxes, and the name of the
3-17 governmental entity to which the guardian paid the taxes;
3-18 (9) a description of all current delinquencies in the
3-19 filing of tax returns and the payment of taxes and a reason for
3-20 each delinquency; and
3-21 (10) other facts as appear necessary to a full and
3-22 definite understanding of the exact condition of the guardianship.
3-23 SECTION 8. The heading to Section 752, Texas Probate Code,
3-24 is amended to read as follows:
3-25 Sec. 752. COURT ACTION; CLOSING OF GUARDIANSHIP OF WARD'S
3-26 ESTATE.
3-27 SECTION 9. The changes in law made by Sections 2 through 8
3-28 of this Act apply only to an application for the appointment of a
3-29 guardian filed on or after the effective date of this Act. An
3-30 application for the appointment of a guardian filed before the
3-31 effective date of this Act is governed by the law in effect on the
3-32 date the application was filed, and the former law is continued in
3-33 effect for that purpose.
3-34 SECTION 10. This Act takes effect September 1, 2001.
3-35 * * * * *