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.