By Hartnett H.B. No. 3467
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to a decedent's estate.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter I, Texas Probate Code, is amended by
1-5 adding Section 10C to read as follows:
1-6 Sec. 10C. EFFECT OF FILING OR CONTESTING PLEADING. The
1-7 filing or contesting in probate court of any pleading relating to a
1-8 decedent's estate does not constitute tortious interference with
1-9 inheritance of the estate.
1-10 SECTION 2. Section 69, Texas Probate Code, is amended by
1-11 adding Subsections (c), (d), and (e) to read as follows:
1-12 (c) If, at the time of a testator's death, a petition for
1-13 divorce filed by the testator or testator's surviving spouse was
1-14 pending in a court of competent jurisdiction, all provisions in the
1-15 will in favor of the testator's surviving spouse, or appointing
1-16 such spouse to any fiduciary capacity under the will or with
1-17 respect to the estate or person of the testator's children, must be
1-18 read as if the surviving spouse failed to survive the testator, and
1-19 shall be null and void and of no effect unless the will expressly
1-20 provides otherwise, if:
1-21 (1) in the divorce action either spouse has signed and
1-22 filed a sworn statement that there is no reasonable expectation of
1-23 reconciliation; and
2-1 (2) the divorce petition and statement described by
2-2 Subdivision (1) of this subsection were both filed not later than
2-3 the 61st day before the date of the decedent's death.
2-4 (d) If, at the time of the death of a decedent who dies
2-5 intestate, a petition for divorce filed by the decedent or
2-6 decedent's surviving spouse was pending in a court of competent
2-7 jurisdiction, the surviving spouse shall be treated as if the
2-8 surviving spouse predeceased the deceased spouse if:
2-9 (1) in the divorce action either spouse has signed and
2-10 filed a sworn statement that there is no reasonable expectation of
2-11 reconciliation; and
2-12 (2) the divorce petition and statement described by
2-13 Subdivision (1) of this subsection were both filed not later than
2-14 the 61st day before the date of the decedent's death.
2-15 (e) Subsection (c) or (d) of this section does not apply if
2-16 before the decedent's death the divorce proceeding was dismissed or
2-17 there was an acknowledged revocation of a statement described by
2-18 Subsection (c)(1) or (d)(1) of this section by the spouse who
2-19 signed the statement.
2-20 SECTION 3. Section 89A(a), Texas Probate Code, is amended to
2-21 read as follows:
2-22 (a) A written will shall, if within the control of the
2-23 applicant, be filed with the application for probate as a muniment
2-24 of title, and shall remain in the custody of the county clerk
2-25 unless removed from the custody of the clerk by order of a proper
2-26 court. An application for probate of a will as a muniment of title
3-1 shall state:
3-2 (1) The name and domicile of each applicant.
3-3 (2) The name, age if known, and domicile of the
3-4 decedent, and the fact, time, and place of death.
3-5 (3) Facts showing that the court has venue.
3-6 (4) That the decedent owned real or personal property,
3-7 or both, describing the property generally, and stating its
3-8 probable value.
3-9 (5) The date of the will, the name and residence of
3-10 the executor named in the will, if any, and the names and
3-11 residences of the subscribing witnesses, if any.
3-12 (6) Whether a child or children born or adopted after
3-13 the making of such will survived the decedent, and the name of each
3-14 such survivor, if any.
3-15 (7) That there are no unpaid debts owing by the estate
3-16 of the testator, excluding debts secured by liens on real estate.
3-17 (8) Whether the decedent was ever divorced, and if so,
3-18 when and from whom.
3-19 (9) [The social security number of the applicant and
3-20 of the decedent.]
3-21 [(10)] Whether the state, a governmental agency of the
3-22 state, or a charitable organization is named by the will as a
3-23 devisee.
3-24 The foregoing matters shall be stated and averred in the
3-25 application to the extent that they are known to the applicant, or
3-26 can with reasonable diligence be ascertained by the applicant, and
4-1 if any of such matters is not stated or averred in the application,
4-2 the application shall set forth the reason why such matter is not
4-3 so stated and averred.
4-4 SECTION 4. Section 128, Texas Probate Code, is amended by
4-5 amending Subsections (b) and (c) and adding Subsections (d), (e),
4-6 and (f) to read as follows:
4-7 (b) Where Application Is for Probate of a Written Will Not
4-8 Produced or of a Nuncupative Will. When the application is for the
4-9 probate of a nuncupative will, or of a written will which cannot be
4-10 produced in court, the clerk, except as provided by Subsection (c)
4-11 of this section, shall issue a citation to all parties interested
4-12 in such estate, which citation shall contain substantially the
4-13 statements made in the application for probate, and the time when,
4-14 place where, and the court before which such application will be
4-15 acted upon. If the heirs of the testator be residents of this
4-16 state, and their residence be known, the citation shall be served
4-17 upon them by personal service. Service of such citation may be made
4-18 by publication in the following cases:
4-19 (1) When the heirs are non-residents of this state; or
4-20 (2) When their names or their residences are unknown;
4-21 or
4-22 (3) When they are transient persons.
4-23 (c) Waiver of Citation. In the case of an application for
4-24 the probate of a written will that cannot be produced in court,
4-25 citation under Subsection (b) of this section is not required to be
4-26 issued to an heir who has delivered to the court an affidavit
5-1 signed by the heir stating that the heir does not object to the
5-2 offer of the testator's will for probate.
5-3 (d) Additional Statements. In the case of an application
5-4 for the probate of a written will that cannot be produced in court,
5-5 the citation required by Subsection (b) of this section and an
5-6 affidavit described by Subsection (c) of this section must also
5-7 contain a statement that:
5-8 (1) an original will cannot be produced in court; and
5-9 (2) the testator's property will pass to the
5-10 testator's heirs if a copy of the written will is not admitted to
5-11 probate.
5-12 (e) Appointment of Attorney Ad Litem for Certain Heirs. If
5-13 an application for the probate of a written will not produced in
5-14 court is filed and the residence of any of the testator's heirs
5-15 cannot be ascertained by the clerk, the court shall appoint an
5-16 attorney ad litem to protect the interests of unknown heirs.
5-17 (f) No Action Until Service Is Had. No application for the
5-18 probate of a will or for the issuance of letters shall be acted
5-19 upon until service of citation has been made in the manner provided
5-20 herein.
5-21 SECTION 5. The changes in law made by Section 2 of this Act
5-22 apply only to the estates of decedents who die on or after the
5-23 effective date of this Act. The estates of decedents who die
5-24 before the effective date of this Act are governed by the law as it
5-25 existed immediately before the effective date of this Act, and that
5-26 law is continued in effect for that purpose.
6-1 SECTION 6. The change in law made by Section 3 of this Act
6-2 applies only to an application to probate a will as a muniment of
6-3 title filed on or after the effective date of this Act. An
6-4 application to probate a will as a muniment of title filed before
6-5 the effective date of this Act is governed by the law in effect on
6-6 the date the application was filed, and the former law is
6-7 continued in effect for that purpose.
6-8 SECTION 7. The change in law made by Section 4 of this Act
6-9 applies only to an application for probate of a written will not
6-10 produced in court that is filed on or after the effective date of
6-11 this Act. An application for probate of a written will not
6-12 produced in court that is filed before the effective date of this
6-13 Act is governed by the law in effect on the date the application
6-14 was filed, and the former law is continued in effect for that
6-15 purpose.
6-16 SECTION 8. This Act takes effect September 1, 2001.