78R2209 MTB-F
By: Harris S.B. No. 577
A BILL TO BE ENTITLED
AN ACT
relating to probate matters.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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 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. All statutory probate courts shall
have the same powers over independent executors that are
exercisable by the district courts. [In situations where the
jurisdiction of a statutory probate court is concurrent with that
of a district 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 2. 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 3. 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 4. 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,
2003 [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 5. 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 6. 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 7. 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 8. 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 9. Section 322A(j), Texas Probate Code, is
repealed.
SECTION 10. (a) The change in law made by this Act to
Section 5A(b), Texas Probate Code, applies only to a cause of action
that accrues on or after the effective date of this Act. A cause of
action that accrued before the effective date of this Act is
governed by the law in effect at the time the cause of action
accrued, and the former law is continued in effect for that purpose.
(b) 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.
(c) The change in law made by this Act to Section 59A(a),
Texas Probate Code, applies only to a contract to make a will or
devise or not to revoke a will or devise that is executed on or after
the effective date of this Act. A contract to make a will or devise
or not to revoke a will or devise that is executed before the
effective date of this Act is governed by the law in effect at the
time the contract was executed, and the former law is continued in
effect for that purpose.
(d) 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.
SECTION 11. This Act takes effect September 1, 2003.