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By: Hartnett H.B. No. 1473
Substitute the following for H.B. No. 1473:
By: Hartnett C.S.H.B. No. 1473
A BILL TO BE ENTITLED
AN ACT
relating to probate matters.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 5, Texas Probate Code, is
amended to read as follows:
Sec. 5. JURISDICTION [OF DISTRICT COURT AND OTHER COURTS OF
RECORD] WITH RESPECT TO PROBATE PROCEEDINGS [AND APPEALS FROM
PROBATE ORDERS].
SECTION 2. Section 5, Texas Probate Code, is amended by
amending Subsections (b), (c), (d), and (e) and adding Subsections
(b-1)-(b-5), (h), and (i) to read as follows:
(b) In those counties in which there is no statutory probate
court, county court at law, or other statutory court exercising the
jurisdiction of a probate court, all applications, petitions, and
motions regarding probate and administrations shall be filed and
heard in the county court. In[, except that in] contested probate
matters, the judge of the county court may on the judge's own motion
[(] or shall on the motion of any party to the proceeding, according
to the motion:
(1) [)] request [as provided by Section 25.0022,
Government Code,] the assignment of a statutory probate court judge
to hear the contested portion of the proceeding, as provided by
Section 25.0022, Government Code; or
(2) transfer the contested portion of the proceeding
to the district court, which may then hear the contested matter as
if originally filed in district court.
(b-1) If the judge of the county court has not transferred a
contested probate matter to the district court at the time a party
files a motion for assignment of a statutory probate court judge,
the county judge shall grant the motion and may not transfer the
matter to district court unless the party withdraws the motion.
(b-2) A statutory probate court judge assigned to a
contested probate matter as provided by Subsection (b) of this
section [this subsection] has [for that matter] the jurisdiction
and authority granted to a statutory probate court by Sections 5A
and 5B of this code. On resolution of a contested matter, including
an appeal of a matter, to which a statutory probate court judge has
been assigned, the statutory probate court judge shall transfer the
resolved portion of the case to the county court for further
proceedings not inconsistent with the orders of the statutory
probate court judge [The county court shall continue to exercise
jurisdiction over the management of the estate with the exception
of the contested matter until final disposition of the contested
matter is made by the assigned judge or the district court].
(b-3) In contested matters transferred to the district
court [in those counties], the district court has [, concurrently
with the county court, shall have] the general jurisdiction of a
probate court. On [Upon] resolution of a [all pending] contested
matter, including an appeal of a matter, the district court shall
transfer [matters,] the resolved [contested] portion of the case
[probate proceeding shall be transferred by the district court] to
the county court for further proceedings not inconsistent with the
orders of the district court.
(b-4) The county court shall continue to exercise
jurisdiction over the management of the estate with the exception
of the contested matter until final disposition of the contested
matter is made by the assigned statutory probate court judge or the
district court.
(b-5) If a contested portion of the proceeding is
transferred to a district court under Subsection (b-3) of this
section [this subsection], the clerk of the district court may
perform in relation to the transferred portion of the proceeding
any function a county clerk may perform in that type of contested
proceeding.
(c) In those counties in which there is no statutory probate
court, but in which there is a county court at law or other
statutory court exercising the jurisdiction of a probate court, all
applications, petitions, and motions regarding probate and
administrations shall be filed and heard in those courts and the
constitutional county court[, rather than in the district courts],
unless otherwise provided by law. The judge of a county court may
hear any of those matters regarding probate or administrations
sitting for the judge of any other county court. In contested
probate matters, the judge of the constitutional county court may
on the judge's own motion, and shall on the motion of a party to the
proceeding, transfer the proceeding to the county court at law or a
statutory court exercising the jurisdiction of a probate court
other than a statutory probate court. The court to which the
proceeding is transferred may hear the proceeding as if originally
filed in the court.
(d) In those counties in which there is a statutory probate
court, all applications, petitions, and motions regarding probate
or administrations shall be filed and heard in the statutory
probate court[, unless otherwise provided by law].
(e) A statutory probate court has concurrent jurisdiction
with the district court in all personal injury, survival, or
wrongful death actions by or against a person in the person's
capacity as a personal representative, in all actions involving an
inter vivos trust, in all actions involving a charitable trust, and
in all actions involving a personal representative of an estate in
which each other party aligned with the personal representative is
not an interested person in that estate [testamentary trust].
(h) A statutory probate court has jurisdiction over any
matter appertaining to an estate or incident to an estate and has
jurisdiction over any cause of action in which a personal
representative of an estate pending in the statutory probate court
is a party.
(i) A statutory probate court may exercise the pendent and
ancillary jurisdiction necessary to promote judicial efficiency
and economy.
SECTION 3. The heading to Section 5A, Texas Probate Code, is
amended to read as follows:
Sec. 5A. MATTERS APPERTAINING AND INCIDENT TO AN ESTATE
[AND OTHER PROBATE COURT JURISDICTION].
SECTION 4. Section 5A(b), Texas Probate Code, is amended to
read as follows:
(b) In proceedings in the statutory probate courts [and
district courts], the phrases "appertaining to estates" and
"incident to an estate" in this Code include the probate of wills,
the issuance of letters testamentary and of administration, and the
determination of heirship, and also include, but are not limited
to, all claims by or against an estate, all actions for trial of
title to land and for the enforcement of liens thereon, all actions
for trial of the right of property, all actions to construe wills,
the interpretation and administration of testamentary trusts and
the applying of constructive trusts, and generally all matters
relating to the collection, settlement, partition, and
distribution of estates of deceased persons. All statutory probate
courts may, in the exercise of their jurisdiction, notwithstanding
any other provisions of this Code, hear all suits, actions, and
applications filed against or on behalf of any heirship proceeding
or decedent's estate, including estates administered by an
independent executor; all such suits, actions, and applications are
appertaining to and incident to an estate. This subsection shall be
construed in conjunction with and in harmony with Section 145 and
all other sections of this Code dealing with independent executors,
but shall not be construed so as to increase permissible judicial
control over independent executors. Except for [All statutory
probate courts shall have the same powers over independent
executors that are exercisable by the district courts. In]
situations in which [where] the jurisdiction of a statutory probate
court is concurrent with that of a district court as provided by
Section 5(e) of this Code or any other court, any cause of action
appertaining to estates or incident to an estate shall be brought in
a statutory probate court [rather than in the district court].
SECTION 5. Section 8(c)(2), Texas Probate Code, is amended
to read as follows:
(2) Transfer for Convenience of the Estate. If it
appears to the court at any time before the estate is closed that it
would be in the best interest of the estate, the court, in its
discretion, may order the proceeding transferred to the proper
court in any other county in this State. The clerk of the court from
which the proceeding is transferred shall transmit to the court to
which the proceeding is transferred the original file in the
proceeding and a certified copy of the index [entries in the minutes
that relate to the proceeding].
SECTION 6. Chapter I, Texas Probate Code, is amended by
adding Section 10C to read as follows:
Sec. 10C. EFFECT OF FILING OR CONTESTING PLEADING. (a) The
filing or contesting in probate court of any pleading relating to a
decedent's estate does not constitute tortious interference with
inheritance of the estate.
(b) This section does not abrogate any rights of a person
under Rule 13, Texas Rules of Civil Procedure, or Chapter 10, Civil
Practice and Remedies Code.
SECTION 7. Chapter II, Texas Probate Code, is amended by
adding Section 37C to read as follows:
Sec. 37C. SATISFACTION OF DEVISE. (a) Property given to a
person by a testator during the testator's lifetime is considered a
satisfaction, either wholly or partly, of a devise to the person if:
(1) the testator's will provides for deduction of the
lifetime gift;
(2) the testator declares in a contemporaneous writing
that the lifetime gift is to be deducted from or is in satisfaction
of the devise; or
(3) the devisee acknowledges in writing that the
lifetime gift is in satisfaction of the devise.
(b) Property given in partial satisfaction of a devise shall
be valued as of the earlier of the date on which the devisee
acquires possession of or enjoys the property or the date on which
the testator dies.
SECTION 8. Chapter IV, Texas Probate Code, is amended by
adding Section 58c to read as follows:
Sec. 58c. EXERCISE OF POWER OF APPOINTMENT. A testator may
not exercise a power of appointment through a residuary clause in
the testator's will or through a will providing for general
disposition of all the testator's property unless:
(1) the testator makes a specific reference to the
power in the will; or
(2) there is some other indication in writing that the
testator intended to include the property subject to the power in
the will.
SECTION 9. Section 59A(a), Texas Probate Code, is amended
to read as follows:
(a) A contract to make a will or devise, or not to revoke a
will or devise, if executed or entered into on or after September 1,
1979, can be established only by:
(1) provisions of a written agreement that is binding
and enforceable; or
(2) provisions of a will stating that a contract does
exist and stating the material provisions of the contract.
SECTION 10. Section 67(a), Texas Probate Code, is amended
to read as follows:
(a) Whenever a pretermitted child is not mentioned in the
testator's will, provided for in the testator's will, or otherwise
provided for by the testator, the pretermitted child shall succeed
to a portion of the testator's estate as provided by Subsection
(a)(1) or (a)(2) of this section.
(1) If the testator has one or more children living
when he executes his last will, and:
(A) No provision is made therein for any such
child, a pretermitted child succeeds to the portion of the
testator's separate and community estate to which the pretermitted
child would have been entitled pursuant to Section 38(a) of this
code had the testator died intestate without a surviving spouse
owning only that portion of his estate not devised or bequeathed to
the parent of the pretermitted child.
(B) Provision, whether vested or contingent, is
made therein for one or more of such children, a pretermitted child
is entitled to share in the testator's estate as follows:
(i) The portion of the testator's estate to
which the pretermitted child is entitled is limited to the
disposition made to children under the will.
(ii) The pretermitted child shall receive
such share of the testator's estate, as limited in Subparagraph
(i), as he would have received had the testator included all
pretermitted children with the children upon whom benefits were
conferred under the will, and given an equal share of such benefits
to each such child.
(iii) To the extent that it is feasible, the
interest of the pretermitted child in the testator's estate shall
be of the same character, whether an equitable or legal life estate
or in fee, as the interest that the testator conferred upon his
children under the will.
(2) If the testator has no child living when he
executes his last will, the pretermitted child succeeds to the
portion of the testator's separate and community estate to which
the pretermitted child would have been entitled pursuant to Section
38(a) of this code had the testator died intestate without a
surviving spouse owning only that portion of his estate not devised
or bequeathed to the parent of the pretermitted child.
SECTION 11. Section 84, Texas Probate Code, is amended to
read as follows:
Sec. 84. PROOF OF WRITTEN WILL PRODUCED IN COURT. (a)
Self-Proved Will. If a will is self-proved as provided in this
Code, no further proof of its execution with the formalities and
solemnities and under the circumstances required to make it a valid
will shall be necessary.
(b) Attested Written Will. If not self-proved as provided
in this Code, an attested written will produced in court may be
proved:
(1) By the sworn testimony or affidavit of one or more
of the subscribing witnesses thereto, taken in open court.
(2) If all the witnesses are non-residents of the
county, or those who are residents are unable to attend court, by
the sworn testimony of any one or more of them by deposition, either
written or oral, taken in the same manner and under the same rules
as depositions taken in other civil actions; or, if no opposition in
writing to such will is filed on or before the date set for hearing
thereon, then by the sworn testimony or affidavit of two witnesses
taken in open court, or by deposition in the manner provided herein,
to the signature or the handwriting evidenced thereby of one or more
of the attesting witnesses, or of the testator, if he signed the
will; or, if it be shown under oath to the satisfaction of the court
that, diligent search having been made, only one witness can be
found who can make the required proof, then by the sworn testimony
or affidavit of such one taken in open court, or by deposition in
the manner provided herein, to such signatures or handwriting.
(3) If none of the witnesses is living, or if all of
such witnesses are members of the armed forces of the United States
of America or of any auxiliary thereof, or of the armed forces
reserve of the United States of America or of any auxiliary thereof,
or of the Maritime Service, and are beyond the jurisdiction of the
court, by two witnesses to the handwriting of one or both of the
subscribing witnesses thereto, or of the testator, if signed by
him, and such proof may be either by sworn testimony or affidavit
taken in open court, or by deposition, either written or oral, taken
in the same manner and under the same rules as depositions taken in
other civil actions; or, if it be shown under oath to the
satisfaction of the court that, diligent search having been made,
only one witness can be found who can make the required proof, then
by the sworn testimony or affidavit of such one taken in open court,
or by deposition in the manner provided herein, to such signatures
or handwriting.
(c) [(b)] Holographic Will. If not self-proved as provided
in this Code, a will wholly in the handwriting of the testator may
be proved by two witnesses to his handwriting, which evidence may be
by sworn testimony or affidavit taken in open court, or, if such
witnesses are non-residents of the county or are residents who are
unable to attend court, by deposition, either written or oral,
taken in the same manner and under the same rules as depositions
taken in other civil actions.
(d) [(c)] Depositions if No Contest Filed. If no contest
has been filed, depositions for the purpose of establishing a will
may be taken in the same manner as provided in this Code for the
taking of depositions where there is no opposing party or attorney
of record upon whom notice and copies of interrogatories may be
served; and, in such event, this Subsection, rather than the
preceding portions of this Section which provide for the taking of
depositions under the same rules as depositions in other civil
actions, shall be applicable.
SECTION 12. Section 222A(b), Texas Probate Code, is amended
to read as follows:
(b) On the filing of an application for a hearing under this
section, the court clerk shall issue a notice stating that the
application for reinstatement was filed, the name of the [ward or]
decedent, and the name of the applicant. The clerk shall issue the
notice to the applicant and to the successor representative of [,
the ward, a person interested in the welfare of the ward,] the
decedent's estate[, or the ward's estate and, if applicable, to a
person who has control of the care and custody of the ward]. The
notice must cite all persons interested in the estate [or welfare of
the ward] to appear at the time and place stated in the notice if
they wish to contest the application.
SECTION 13. Section 245, Texas Probate Code, is amended to
read as follows:
Sec. 245. WHEN COSTS ARE ADJUDGED AGAINST REPRESENTATIVE.
When a [the] personal representative [of an estate or person]
neglects to perform a required [the performance of any] duty
[required of him, and any costs are incurred thereby,] or if a
personal representative [he] is removed for cause, the personal
representative [he] and the sureties on the personal
representative's [his] bond are [shall be] liable for:
(1) costs of removal and other additional costs
incurred that are not authorized expenditures, as defined by this
code; [,] and
(2) [for] reasonable attorney's fees incurred in
removing the personal representative or [him and] in obtaining
[his] compliance regarding any statutory duty the personal
representative [he] has neglected.
SECTION 14. Section 322, Texas Probate Code, is amended to
read as follows:
Sec. 322. CLASSIFICATION OF CLAIMS AGAINST ESTATES OF
DECEDENT. Claims against an estate of a decedent shall be
classified and have priority of payment, as follows:
Class 1. Funeral expenses and expenses of last sickness for
a reasonable amount to be approved by the court, not to exceed a
total of Fifteen Thousand Dollars, with any excess to be classified
and paid as other unsecured claims.
Class 2. Expenses of administration and expenses incurred
in the preservation, safekeeping, and management of the estate,
including fees and expenses awarded under Section 243 of this code.
Class 3. Secured claims for money under Section 306(a)(1),
including tax liens, so far as the same can be paid out of the
proceeds of the property subject to such mortgage or other lien, and
when more than one mortgage, lien, or security interest shall exist
upon the same property, they shall be paid in order of their
priority.
Class 4. Claims for the principal amount of and accrued
interest on delinquent child support and child support arrearages
that have been confirmed and reduced to money judgment, as
determined under Subchapter F, Chapter 157, Family Code.
Class 5. Claims for taxes, penalties, and interest due
under Title 2, Tax Code; Chapter 8, Title 132, Revised Statutes;
Section 81.111, Natural Resources Code; the Municipal Sales and
Use Tax Act (Chapter 321, Tax Code); Section 451.404,
Transportation Code; or Subchapter I, Chapter 452, Transportation
Code.
Class 6. Claims for the cost of confinement established by
the institutional division of the Texas Department of Criminal
Justice under Section 501.017, Government Code.
Class 7. Claims for repayment of medical assistance
payments made by the state under Chapter 32, Human Resources Code,
to or for the benefit of the decedent.
Class 8. All other claims.
SECTION 15. Section 378B(f), Texas Probate Code, is amended
to read as follows:
(f) A devisee of a pecuniary bequest, whether or not in
trust, shall be paid interest on the bequest at the legal rate of
interest as provided by Section 302.002, Finance Code [Article
1.03, Revised Statutes (Article 5069-1.03, Vernon's Texas Civil
Statutes)], and its subsequent amendments, beginning one year after
the date the court grants letters testamentary or letters of
administration.
SECTION 16. Sections 5(a), 5A(c), 5A(d), 5A(e), and
322A(j), Texas Probate Code, are repealed.
SECTION 17. (a) The changes in law made by this Act to
Sections 5 and 5A(b), Texas Probate Code, apply only to a probate
proceeding or other action commenced on or after the effective date
of this Act without regard to whether:
(1) the decedent's death occurred before, on, or after
that date; and
(2) the probate proceeding or other action is the
original proceeding or action.
(b) A probate proceeding or other action commenced before
the effective date of this Act is governed by the law applicable to
the proceeding or action immediately before the effective date of
this Act, and that law is continued in effect for that purpose.
SECTION 18. (a) Sections 37C and 58c, Texas Probate Code, as
added by this Act, apply only to a will executed on or after the
effective date of this Act. A will executed before the effective
date of this Act is governed by the law in effect on the date the
will was executed, and that law is continued in effect for that
purpose.
(b) The change in law made by this Act to Section 67(a),
Texas Probate Code, applies only to the estate of a person who dies
on or after the effective date of this Act. An estate of a person who
dies before the effective date of this Act is governed by the law in
effect on the date the person died, and that law is continued in
effect for that purpose.
(c) The changes in law made by this Act to Section 222A(b),
Texas Probate Code, apply only to an application that is filed on or
after the effective date of this Act. An application that is filed
before the effective date of this Act is governed by the law in
effect on the date on which the application was filed, and that law
is continued in effect for that purpose.
SECTION 19. This Act takes effect September 1, 2003.