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A BILL TO BE ENTITLED
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AN ACT
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relating to the estates of decedents. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ARTICLE 1. DEFINITIONS AND USE OF TERMS |
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SECTION 1.01. Section 3(r), Texas Probate Code, is amended |
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to read as follows: |
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(r) "Interested persons" or "persons interested" |
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means heirs, devisees, spouses, creditors, or any others having a |
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property right in, or claim against, the estate being administered; |
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and anyone interested in the welfare of an incapacitated person, |
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including a minor [or incompetent ward]. |
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SECTION 1.02. The changes in law made by this article apply |
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to a proceeding that is pending or commenced on or after the |
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effective date of this article. |
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ARTICLE 2. VENUE FOR DECEDENTS' ESTATES |
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AND DETERMINATION OF HEIRSHIPS |
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SECTION 2.01. Sections 8(a), (b), (c), and (e), Texas |
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Probate Code, are amended to read as follows: |
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(a) Concurrent Venue. When two or more courts have |
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concurrent venue of an estate or a proceeding to declare heirship |
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under Section 48(a) of this code, the court in which the application |
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for a proceeding in probate or determination of heirship |
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[proceedings thereon] is first filed shall have and retain |
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jurisdiction of the estate or heirship proceeding, as appropriate, |
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to the exclusion of the other court or courts. The proceeding |
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[proceedings] shall be deemed commenced by the filing of an |
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application averring facts sufficient to confer venue; and the |
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proceeding first legally commenced shall extend to all of the |
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property of the decedent or the decedent's estate. Provided, |
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however, that a bona fide purchaser of real property in reliance on |
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any such subsequent proceeding, without knowledge of its |
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invalidity, shall be protected in such purchase unless the decree |
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admitting the will to probate, determining heirship, or granting |
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administration in the prior proceeding shall be recorded in the |
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office of the county clerk of the county in which such property is |
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located. |
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(b) Proceedings in More Than One County. If a proceeding in |
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[proceedings for] probate or to declare heirship under Section |
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48(a) of this code is [are] commenced in more than one county, the |
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proceeding [they] shall be stayed except in the county where first |
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commenced until final determination of venue in the county where |
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first commenced. If the proper venue is finally determined to be in |
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another county, the clerk, after making and retaining a true copy of |
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the entire file in the case, shall transmit the original file to the |
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proper county, and the proceeding [proceedings] shall thereupon be |
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had in the proper county in the same manner as if the proceeding |
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[proceedings] had originally been instituted therein. |
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(c) Transfer of Proceeding. |
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(1) Transfer for Want of Venue. If it appears to the |
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court at any time before the final decree that the proceeding was |
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commenced in a court which did not have priority of venue over such |
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proceeding, the court shall, on the application of any interested |
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person, transfer the proceeding to the proper county by |
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transmitting to the proper court in such county the original file in |
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such case, together with certified copies of all entries in the |
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minutes theretofore made, and the probate of the will, |
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determination of heirship, or administration of the estate in such |
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county shall be completed in the same manner as if the proceeding |
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had originally been instituted therein; but, if the question as to |
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priority of venue is not raised before final decree in the |
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proceedings is announced, the finality of such decree shall not be |
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affected by any error in venue. |
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(2) Transfer for Convenience of the Estate. If it |
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appears to the court at any time before the estate is closed or, if |
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there is no administration of the estate, when the proceeding in |
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probate or to declare heirship is concluded that it would be in the |
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best interest of the estate or, if there is no administration of the |
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estate, that it would be in the best interest of the heirs or |
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beneficiaries of the decedent's will, the court, in its discretion, |
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may order the proceeding transferred to the proper court in any |
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other county in this State. The clerk of the court from which the |
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proceeding is transferred shall transmit to the court to which the |
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proceeding is transferred the original file in the proceeding and a |
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certified copy of the index. |
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(e) Jurisdiction to Determine Venue. Any court in which |
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there has been filed an application for a proceeding [proceedings] |
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in probate or determination of heirship shall have full |
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jurisdiction to determine the venue of the [such] proceeding in |
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probate or heirship proceeding, and of any proceeding relating |
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thereto, and its determination shall not be subject to collateral |
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attack. |
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SECTION 2.02. Section 48(a), Texas Probate Code, is amended |
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to read as follows: |
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(a) When a person dies intestate owning or entitled to real |
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or personal property in Texas, and there shall have been no |
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administration in this State upon his estate; or when there has |
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been a will probated in this State or elsewhere, or an |
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administration in this State upon the estate of such decedent, and |
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any real or personal property in this State has been omitted from |
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such will or from such administration, or no final disposition |
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thereof has been made in such administration, the court of the |
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county in which such proceedings were last pending, or in the event |
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no will of such decedent has been admitted to probate in this State, |
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and no administration has been granted in this State upon the estate |
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of such decedent, then the court of the county in which venue would |
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be proper for commencement of an administration of the decedent's |
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estate under Section 6 of this code [any of the real property
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belonging to such estate is situated, or if there is no such real
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estate, then of the county in which any personal property belonging
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to such estate is found], may determine and declare in the manner |
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hereinafter provided who are the heirs and only heirs of such |
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decedent, and their respective shares and interests, under the laws |
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of this State, in the estate of such decedent, and proceedings |
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therefor shall be known as proceedings to declare heirship. |
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SECTION 2.03. The changes in law made by this article apply |
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only to a proceeding commenced on or after the effective date of |
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this article. A proceeding commenced before the effective date of |
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this article is governed by the law applicable to the proceeding |
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immediately before the effective date of this article, and that law |
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is continued in effect for that purpose. |
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ARTICLE 3. DISCLAIMERS |
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SECTION 3.01. Section 37A, Texas Probate Code, is amended |
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to read as follows: |
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Sec. 37A. MEANS OF EVIDENCING DISCLAIMER OR RENUNCIATION OF |
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PROPERTY OR INTEREST RECEIVABLE FROM A DECEDENT. (a) Persons Who |
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May Disclaim. Any person, or the guardian of an incapacitated |
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person, the personal representative of a deceased person, or the |
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guardian ad litem of an unborn or unascertained person, with prior |
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court approval of the court having, or which would have, |
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jurisdiction over such guardian, personal representative, or |
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guardian ad litem, or any independent executor of a deceased |
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person, without prior court approval, or an attorney in fact or |
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agent appointed under a durable power of attorney authorizing |
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disclaimers that is executed by a principal, who may be entitled to |
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receive any property as a beneficiary and who intends to effect |
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disclaimer irrevocably on or after September 1, 1977, of the whole |
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or any part of such property shall evidence same as herein provided. |
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(b) Effective Date of Disclaimer. A disclaimer evidenced as |
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provided by this section [herein] shall be effective as of the death |
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of decedent and shall relate back for all purposes to the death of |
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the decedent and is not subject to the claims of any creditor of the |
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disclaimant. |
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(c) Effect of Disclaimer. Unless the decedent's will |
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provides otherwise, the property subject to the disclaimer shall |
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pass as if the person disclaiming or on whose behalf a disclaimer is |
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made had predeceased the decedent and a future interest that would |
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otherwise take effect in possession or enjoyment after the |
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termination of the estate or interest that is disclaimed takes |
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effect as if the disclaiming beneficiary had predeceased the |
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decedent. |
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(d) Ineffective Disclaimer. Failure to comply with the |
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provisions of this section [hereof] shall render such disclaimer |
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ineffective except as an assignment of such property to those who |
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would have received same had the person attempting the disclaimer |
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died prior to the decedent. |
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(e) Definitions. The term "property" as used in this |
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section shall include all legal and equitable interests, powers, |
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and property, whether present or future, whether vested or |
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contingent, and whether beneficial or burdensome, in whole or in |
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part. The term "disclaimer" as used in this section shall include |
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"renunciation." In this section "beneficiary" includes a person |
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who would have been entitled, if the person had not made a |
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disclaimer, to receive property as a result of the death of another |
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person by inheritance, under a will, by an agreement between |
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spouses for community property with a right of survivorship, by a |
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joint tenancy with a right of survivorship, or by any other |
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survivorship agreement, account, or interest in which the interest |
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of the decedent passes to a surviving beneficiary, by an insurance, |
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annuity, endowment, employment, deferred compensation, or other |
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contract or arrangement, or under a pension, profit sharing, |
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thrift, stock bonus, life insurance, survivor income, incentive, or |
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other plan or program providing retirement, welfare, or fringe |
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benefits with respect to an employee or a self-employed individual. |
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(f) Subsequent Disclaimers. Nothing in this section shall |
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be construed to preclude a subsequent disclaimer by any person who |
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shall be entitled to property as a result of a disclaimer. |
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(g) Form [The following shall apply to such disclaimers:
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[(a)Written Memorandum] of Disclaimer [and Filing
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Thereof]. In the case of property receivable by a beneficiary, the |
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disclaimer shall be evidenced by a written memorandum, acknowledged |
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before a notary public or other person authorized to take |
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acknowledgements of conveyances of real estate. |
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(h) Filing of Disclaimer. Unless the beneficiary is a |
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charitable organization or governmental agency of the state, a |
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written memorandum of disclaimer disclaiming a present interest |
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shall be filed not later than nine months after the death of the |
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decedent and a written memorandum of disclaimer disclaiming a |
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future interest may be filed not later than nine months after the |
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event determining that the taker of the property or interest is |
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finally ascertained and his interest is indefeasibly vested. If |
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the beneficiary is a charitable organization or a governmental |
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agency of the state, a written memorandum of disclaimer disclaiming |
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a present or future interest shall be filed not later than the first |
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anniversary of the date [nine months after] the beneficiary |
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receives the notice required by Section 128A of this code, or the |
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expiration of the six-month period following the date the personal |
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representative files the inventory, appraisement, and list of |
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claims due or owing to the estate, whichever occurs later. The |
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written memorandum of disclaimer shall be filed in the probate |
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court in which the decedent's will has been probated or in which |
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proceedings have been commenced for the administration of the |
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decedent's estate or which has before it an application for either |
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of the same; provided, however, if the administration of the |
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decedent's estate is closed, or after the expiration of one year |
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following the date of the issuance of letters testamentary in an |
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independent administration, or if there has been no will of the |
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decedent probated or filed for probate, or if no administration of |
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the decedent's estate has been commenced, or if no application for |
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administration of the decedent's estate has been filed, the written |
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memorandum of disclaimer shall be filed with the county clerk of the |
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county of the decedent's residence, or, if the decedent is not a |
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resident of this state but real property or an interest therein |
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located in this state is disclaimed, a written memorandum of |
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disclaimer shall be filed with the county clerk of the county in |
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which such real property or interest therein is located, and |
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recorded by such county clerk in the deed records of that county. |
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(i) [(b)] Notice of Disclaimer. Unless the beneficiary is a |
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charitable organization or governmental agency of the state, copies |
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of any written memorandum of disclaimer shall be delivered in |
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person to, or shall be mailed by registered or certified mail to and |
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received by, the legal representative of the transferor of the |
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interest or the holder of legal title to the property to which the |
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disclaimer relates not later than nine months after the death of the |
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decedent or, if the interest is a future interest, not later than |
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nine months after the date the person who will receive the property |
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or interest is finally ascertained and the person's interest is |
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indefeasibly vested. If the beneficiary is a charitable |
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organization or government agency of the state, the notices |
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required by this section shall be filed not later than the first |
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anniversary of the date [nine months after] the beneficiary |
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receives the notice required by Section 128A of this code, or the |
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expiration of the six-month period following the date the personal |
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representative files the inventory, appraisement, and list of |
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claims due or owing to the estate, whichever occurs later. |
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(j) [(c)] Power to Provide for Disclaimer. Nothing herein |
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shall prevent a person from providing in a will, insurance policy, |
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employee benefit agreement, or other instrument for the making of |
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disclaimers by a beneficiary of an interest receivable under that |
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instrument and for the disposition of disclaimed property in a |
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manner different from the provisions hereof. |
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(k) [(d)] Irrevocability of Disclaimer. Any disclaimer |
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filed and served under this section shall be irrevocable. |
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(l) [(e)] Partial Disclaimer. Any person who may be |
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entitled to receive any property as a beneficiary may disclaim such |
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property in whole or in part, including but not limited to specific |
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powers of invasion, powers of appointment, and fee estate in favor |
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of life estates; and a partial disclaimer or renunciation, in |
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accordance with the provisions of this section, shall be effective |
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whether the property so renounced or disclaimed constitutes a |
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portion of a single, aggregate gift or constitutes part or all of a |
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separate, independent gift; provided, however, that a partial |
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disclaimer shall be effective only with respect to property |
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expressly described or referred to by category in such disclaimer; |
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and provided further, that a partial disclaimer of property which |
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is subject to a burdensome interest created by the decedent's will |
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shall not be effective unless such property constitutes a gift |
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which is separate and distinct from undisclaimed gifts. |
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(m) [(f)] Partial Disclaimer by Spouse. Without limiting |
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Subsection (l) [(e)] of this section, a disclaimer by the |
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decedent's surviving spouse of a transfer by the decedent is not a |
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disclaimer by the surviving spouse of all or any part of any other |
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transfer from the decedent to or for the benefit of the surviving |
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spouse, regardless of whether the property or interest that would |
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have passed under the disclaimed transfer passes because of the |
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disclaimer to or for the benefit of the surviving spouse by the |
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other transfer. |
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(n) [(g)] Disclaimer After Acceptance. No disclaimer shall |
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be effective after the acceptance of the property by the |
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beneficiary. For the purpose of this subsection [section], |
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acceptance shall occur only if the person making such disclaimer |
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has previously taken possession or exercised dominion and control |
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of such property in the capacity of beneficiary. |
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(o) [(h)] Interest in Trust Property. A beneficiary who |
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accepts an interest in a trust is not considered to have a direct or |
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indirect interest in trust property that relates to a licensed or |
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permitted business and over which the beneficiary exercises no |
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control. Direct or indirect beneficial ownership of not more than |
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five percent of any class of equity securities that is registered |
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under the Securities Exchange Act of 1934 shall not be deemed to be |
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an ownership interest in the business of the issuer of such |
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securities within the meaning of any statute, pursuant thereto. |
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SECTION 3.02. Section 37B(b), Texas Probate Code, is |
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amended to read as follows: |
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(b) The assignment may, at the request of the assignor, be |
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filed as provided for the filing of a disclaimer under Section |
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37A(h) [37A(a)] of this code. The filing requires the service of |
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notice under Section 37A(i) [37A(b)] of this code. |
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ARTICLE 4. DISSOLUTION OF MARRIAGE; |
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EFFECT ON DECEDENTS' ESTATES |
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SECTION 4.01. Chapter II, Texas Probate Code, is amended by |
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adding Section 47A to read as follows: |
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Sec. 47A. MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY. |
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(a) If a proceeding under Chapter 6, Family Code, to declare a |
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marriage void based on the lack of mental capacity of one of the |
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parties to the marriage is pending on the date of death of one of |
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those parties, or if a guardianship proceeding in which a court is |
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requested under Chapter 6, Family Code, to declare a ward's or |
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proposed ward's marriage void based on the lack of mental capacity |
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of the ward or proposed ward is pending on the date of death of the |
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ward or proposed ward, the court may make the determination and |
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declare the marriage void after the decedent's death. In making |
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that determination after the decedent's death, the court shall |
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apply the standards for an annulment prescribed by Section |
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6.108(a), Family Code. |
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(b) Subject to Subsection (c) of this section, if a |
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proceeding described by Subsection (a) of this section is not |
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pending on the date of a decedent's death, an interested person may |
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file an application with the court requesting that the court void |
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the marriage of the decedent if, on the date of the decedent's |
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death, the decedent was married, and that marriage commenced not |
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earlier than three years before the decedent's date of death. The |
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notice applicable to a proceeding for a declaratory judgment under |
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Chapter 37, Civil Practice and Remedies Code, applies to a |
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proceeding under this subsection. |
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(c) An application requesting that the court void a |
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decedent's marriage authorized by Subsection (b) of this section |
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may not be filed after the first anniversary of the date of the |
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decedent's death. |
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(d) Except as provided by Subsection (e) of this section, in |
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a proceeding brought under Subsection (b) of this section, the |
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court shall declare the decedent's marriage void if the court finds |
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that, on the date the marriage occurred, the decedent did not have |
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the mental capacity to: |
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(1) consent to the marriage; and |
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(2) understand the nature of the marriage ceremony, if |
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a ceremony occurred. |
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(e) In a proceeding brought under Subsection (b) of this |
|
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section, a court that makes a finding described by Subsection (d) of |
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this section may not declare the decedent's marriage void if the |
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court finds that, after the date the marriage occurred, the |
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decedent: |
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(1) gained the mental capacity to recognize the |
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marriage relationship; and |
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(2) did recognize the marriage relationship. |
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(f) If the court declares a decedent's marriage void in a |
|
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proceeding described by Subsection (a) of this section or brought |
|
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under Subsection (b) of this section, the other party to the |
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marriage is not considered the decedent's surviving spouse for |
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purposes of any law of this state. |
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SECTION 4.02. Section 69, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 69. WILL PROVISIONS MADE BEFORE DISSOLUTION OF |
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MARRIAGE [VOIDNESS ARISING FROM DIVORCE]. (a) In this section, |
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"relative" means an individual who is related to another individual |
|
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by consanguinity or affinity, as determined under Sections 573.022 |
|
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and 573.024, Government Code, respectively. |
|
|
(b) If, after making a will, the testator's marriage is |
|
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dissolved, whether by divorce, annulment, or a declaration that the |
|
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marriage is void [testator is divorced or the testator's marriage
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is annulled], all provisions in the will, including all fiduciary |
|
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appointments [in favor of the testator's former spouse, or
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appointing such spouse to any fiduciary capacity under the will or
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with respect to the estate or person of the testator's children], |
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shall [must] be read as if the former spouse and each relative of |
|
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the former spouse who is not a relative of the testator failed to |
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survive the testator, [and shall be null and void and of no effect] |
|
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unless the will expressly provides otherwise. |
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(c) [(b)] A person whose marriage to [who is divorced from] |
|
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the decedent has been dissolved, whether by divorce, annulment, or |
|
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a declaration that the marriage is void, [or whose marriage to the
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decedent has been annulled] is not a surviving spouse unless, by |
|
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virtue of a subsequent marriage, the person is married to the |
|
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decedent at the time of death and the subsequent marriage is not |
|
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declared void under Section 47A of this code. |
|
|
SECTION 4.03. Section 6.111, Family Code, is amended to |
|
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read as follows: |
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Sec. 6.111. DEATH OF PARTY TO VOIDABLE MARRIAGE. Except as |
|
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provided by Section 47A, Texas Probate Code, a [A] marriage subject |
|
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to annulment may not be challenged in a proceeding instituted after |
|
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the death of either party to the marriage. |
|
|
SECTION 4.04. (a) Except as provided by Subsection (b) of |
|
|
this section, the changes in law made by this article apply only to: |
|
|
(1) the estate of a decedent who dies before the |
|
|
effective date of this article, if the probate or administration of |
|
|
the estate is pending on or commenced on or after the effective date |
|
|
of this article; and |
|
|
(2) the estate of a decedent who dies on or after the |
|
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effective date of this article. |
|
|
(b) The changes in law made by this article to Section 69, |
|
|
Texas Probate Code, apply only to the estate of a decedent who dies |
|
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on or after the effective date of this article. The estate of a |
|
|
decedent who dies before the effective date of this article is |
|
|
governed by the law in effect on the date of the decedent's death, |
|
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and the former law is continued in effect for that purpose. |
|
|
ARTICLE 5. NUNCUPATIVE, OR ORAL, WILLS |
|
|
SECTION 5.01. Section 82, Texas Probate Code, is amended to |
|
|
read as follows: |
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Sec. 82. CONTENTS OF APPLICATION FOR LETTERS OF |
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ADMINISTRATION. An application for letters of administration when |
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no will[, written or oral,] is alleged to exist shall state: |
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(a) The name and domicile of the applicant, |
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relationship to the decedent, if any, and that the applicant is not |
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disqualified by law to act as administrator; |
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(b) The name and intestacy of the decedent, and the |
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fact, time and place of death; |
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(c) Facts necessary to show venue in the court to which |
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the application is made; |
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(d) Whether the decedent owned real or personal |
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property, with a statement of its probable value; |
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(e) The name, age, marital status and address, if |
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known, and the relationship, if any, of each heir to the decedent; |
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(f) If known by the applicant at the time of the filing |
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of the application, whether children were born to or adopted by the |
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decedent, with the name and the date and place of birth of each; |
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(g) If known by the applicant at the time of the filing |
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of the application, whether the decedent was ever divorced, and if |
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so, when and from whom; and |
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(h) That a necessity exists for administration of the |
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estate, alleging the facts which show such necessity. |
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SECTION 5.02. Section 91, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 91. WHEN WILL NOT IN CUSTODY OF COURT[, OR ORAL]. If |
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for any reason a written will is not in the custody of the court, [or
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if the will is oral,] the court shall find the contents thereof by |
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written order, and certified copies of same as so established by the |
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court may be recorded in other counties, and may be used in |
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evidence, as in the case of certified copies of written wills in the |
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custody of the court. |
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SECTION 5.03. Section 128(b), Texas Probate Code, is |
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amended to read as follows: |
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(b) Where Application Is for Probate of a Written Will Not |
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Produced [or of a Nuncupative Will]. When the application is for the |
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probate of a [nuncupative will, or of a] written will which cannot |
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be produced in court, the clerk shall issue a citation to all |
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parties interested in such estate, which citation shall contain |
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substantially the statements made in the application for probate, |
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and the time when, place where, and the court before which such |
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application will be acted upon. If the heirs of the testator be |
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residents of this state, and their residence be known, the citation |
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shall be served upon them by personal service. Service of such |
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citation may be made by publication in the following cases: |
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(1) When the heirs are non-residents of this state; or |
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(2) When their names or their residences are unknown; |
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or |
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(3) When they are transient persons. |
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SECTION 5.04. Section 128A(a), Texas Probate Code, is |
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amended to read as follows: |
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(a) If the address of the entity can be ascertained with |
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reasonable diligence, an applicant under Section 81 of this code |
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shall give the state, a governmental agency of the state, or a |
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charitable organization notice that the entity is named as a |
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devisee in a written will or [,] a written will not produced[, or a
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nuncupative will] that has been admitted to probate. |
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SECTION 5.05. Sections 64, 65, 81(c), 86, and 89A(c), Texas |
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Probate Code, are repealed. |
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SECTION 5.06. The changes in law made by this article apply |
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only to a nuncupative, or oral, will made on or after the effective |
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date of this article. A nuncupative, or oral, will made before the |
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effective date of this article is governed by the law in effect on |
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the date the will was made, and the former law is continued in |
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effect for that purpose. |
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ARTICLE 6. WRITTEN WILLS NOT PRODUCED |
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SECTION 6.01. Section 85, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 85. PROOF OF WRITTEN WILL NOT PRODUCED IN COURT. A |
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written will which cannot be produced in court shall be proved in |
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the same manner as provided in the preceding Section for an attested |
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written will or an holographic will, as the case may be, and the |
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same amount and character of testimony shall be required to prove |
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such will as is required to prove a written will produced in court; |
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but, in addition thereto, the cause of its non-production must be |
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proved, and such cause must be sufficient to satisfy the court that |
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it cannot by any reasonable diligence be produced, and the contents |
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of such will must be substantially proved by the testimony of a |
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credible witness who has read the will, has [it or] heard the will |
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[it] read, or can identify a copy of the will. |
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SECTION 6.02. The changes in law made by this article apply |
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only to: |
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(1) the estate of a decedent who dies before the |
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effective date of this article, if the probate or administration of |
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the estate is pending on or commenced on or after the effective date |
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of this article; and |
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(2) the estate of a decedent who dies on or after the |
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effective date of this article. |
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ARTICLE 7. GRANTING OF ADMINISTRATION OF DECEDENTS' ESTATES |
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SECTION 7.01. Section 83(c), Texas Probate Code, is amended |
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to read as follows: |
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(c) Where Letters of Administration Have Been Granted. |
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Whenever letters of administration shall have been granted upon an |
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estate, and it shall afterwards be discovered that the deceased |
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left a lawful will, such will may be proved in the manner provided |
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for the proof of wills; and, if an executor is named in such will, |
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and he is not disqualified, he shall be allowed to qualify and |
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accept as such executor, and the letters previously granted shall |
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be revoked; but, if no such executor be named in the will, or if the |
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executor named be disqualified, be dead, or shall renounce the |
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executorship, or shall [neglect or otherwise] fail or be unable to |
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accept and qualify within twenty days after the date of the probate |
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of the will, or shall fail [neglect] for a period of thirty days |
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after the discovery of such will to present it for probate, then |
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administration with the will annexed of the estate of such testator |
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shall be granted as in other cases. All acts done by the first |
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administrator, prior to the qualification of the executor or of the |
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administrator with the will annexed, shall be as valid as if no such |
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will had been discovered. |
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SECTION 7.02. Section 178(b), Texas Probate Code, is |
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amended to read as follows: |
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(b) Letters of Administration. When a person shall die |
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intestate, or where no executor is named in a will, or where the |
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executor is dead or shall fail [or neglect] to accept and qualify |
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within twenty days after the probate of the will, or shall fail |
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[neglect] for a period of thirty days after the death of the |
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testator to present the will for probate and the court finds there |
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was no good cause for not presenting the will for probate during |
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that period, then administration of the estate of such intestate, |
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or administration with the will annexed of the estate of such |
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testator, shall be granted, should administration appear to be |
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necessary. No administration of any estate shall be granted unless |
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there exists a necessity therefor, such necessity to be determined |
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by the court hearing the application. Such necessity shall be |
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deemed to exist if two or more debts exist against the estate, or if |
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or when it is desired to have the county court partition the estate |
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among the distributees, or if the administration is necessary to |
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receive or recover funds or other property due the estate, but |
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mention of these three [two] instances of necessity for |
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administration shall not prevent the court from finding other |
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instances of necessity upon proof before it. |
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SECTION 7.03. Section 179, Texas Probate Code, is amended |
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to read as follows: |
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Sec. 179. OPPOSITION TO GRANT OF LETTERS OF ADMINISTRATION. |
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When application is made for letters of administration, any |
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interested person may at any time before the application is |
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granted, file the person's [his] opposition thereto in writing, and |
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may apply for the grant of letters to the person [himself] or to any |
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other person; and, upon the trial, the court shall grant letters to |
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the person that may seem best entitled to them, having regard to |
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applicable provisions of this Code, without further notice than |
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that of the original application. |
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SECTION 7.04. Section 190(b), Texas Probate Code, is |
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amended to read as follows: |
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(b) Administrator. Before the issuance of letters of |
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administration, the person appointed administrator shall take and |
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subscribe an oath in form substantially as follows: "I do solemnly |
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swear that ______, deceased, died without leaving any lawful will |
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(or that the named executor in any such will is dead or has failed |
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[or neglected] to offer the same for probate, or to accept and |
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qualify as executor, within the time required, as the case may be), |
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so far as I know or believe, and that I will well and truly perform |
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all the duties of administrator of the estate of said deceased." |
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SECTION 7.05. The changes in law made by this article apply |
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to an application for the administration of an estate that is |
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pending on or filed on or after the effective date of this article. |
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ARTICLE 8. EMERGENCY INTERVENTION APPLICATIONS |
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SECTION 8.01. Section 111(a), Texas Probate Code, is |
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amended to read as follows: |
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(a) An application for emergency intervention to obtain |
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funds needed for a decedent's funeral and burial expenses must be |
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sworn and must contain: |
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(1) the name, address, [social security number,] and |
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interest of the applicant; |
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(2) the facts showing an immediate necessity for the |
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issuance of an emergency intervention order under this section by |
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the court; |
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(3) the date of the decedent's death, place of death, |
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decedent's residential address, and the name and address of the |
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funeral home holding the decedent's remains; |
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(4) any known or ascertainable heirs and devisees of |
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the decedent and the reason: |
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(A) the heirs and devisees cannot be contacted; |
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or |
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(B) the heirs and devisees have refused to assist |
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in the decedent's burial; |
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(5) a description of funeral and burial procedures |
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necessary and a statement from the funeral home that contains a |
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detailed and itemized description of the cost of the funeral and |
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burial procedures; and |
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(6) the name and address of an individual, entity, or |
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financial institution, including an employer, that is in possession |
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of any funds of or due to the decedent, and related account numbers |
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and balances, if known by the applicant. |
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SECTION 8.02. Section 112, Texas Probate Code, is amended |
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to read as follows: |
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Sec. 112. CONTENTS FOR EMERGENCY INTERVENTION APPLICATION |
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FOR ACCESS TO PERSONAL PROPERTY. An application for emergency |
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intervention to gain access to rental accommodations of a decedent |
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at the time of the decedent's death that contain the decedent's |
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personal property must be sworn and must contain: |
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(1) the name, address, [social security number,] and |
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interest of the applicant; |
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(2) the facts showing an immediate necessity for the |
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issuance of an emergency intervention order by the court; |
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(3) the date and place of the decedent's death, the |
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decedent's residential address, and the name and address of the |
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funeral home holding the decedent's remains; |
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(4) any known or ascertainable heirs and devisees of |
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the decedent and the reason: |
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(A) the heirs and devisees cannot be contacted; |
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or |
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(B) the heirs and devisees have refused to assist |
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in the protection of the decedent's personal property; |
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(5) the type and location of the decedent's personal |
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property and the name of the person in possession of the property; |
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and |
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(6) the name and address of the owner or manager of the |
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decedent's rental accommodations and whether access to the |
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accommodations is necessary. |
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SECTION 8.03. The changes in law made by this article apply |
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to an emergency intervention application filed before, on, or after |
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the effective date of this article. |
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ARTICLE 9. SALES OF ESTATE PROPERTY |
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SECTION 9.01. Section 344, Texas Probate Code, is amended |
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to read as follows: |
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Sec. 344. CITATION [AND RETURN] ON APPLICATION. Upon the |
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filing of such application and exhibit, the clerk shall issue a |
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citation to all persons interested in the estate, describing the |
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land or interest or part thereof sought to be sold, and informing |
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[requiring] them of the right under Section 345 of this code to file |
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an opposition to the sale during the period prescribed by the court |
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[to appear at the time set by the court] as shown in the citation |
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[and show cause why the sale should not be made], if they so elect. |
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Service of such citation shall be by posting. |
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SECTION 9.02. Section 345, Texas Probate Code, is amended |
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to read as follows: |
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Sec. 345. OPPOSITION TO APPLICATION. When an application |
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for an order of sale is made, any person interested in the estate |
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may, during the period provided in the citation issued under |
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Section 344 of this code [before an order is made thereon], file his |
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opposition to the sale, in writing, or may make application for the |
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sale of other property of the estate. |
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SECTION 9.03. Part 5, Chapter VIII, Texas Probate Code, is |
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amended by adding Section 345A to read as follows: |
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Sec. 345A. HEARING ON APPLICATION AND ANY OPPOSITION. (a) |
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The clerk of a court in which an application for an order of sale is |
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filed shall immediately call to the attention of the judge any |
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opposition to the sale that is filed during the period provided in |
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the citation issued under Section 344 of this code. The court shall |
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hold a hearing on an application if an opposition to the sale is |
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filed during the period provided in the citation. |
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(b) A hearing on an application for an order of sale is not |
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required under this section if no opposition to the application is |
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filed during the period provided in the citation. The court, in its |
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discretion, may determine that a hearing is necessary on the |
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application even if no opposition was filed during that period. |
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(c) If the court orders a hearing under Subsection (a) or |
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(b) of this section, the court shall designate in writing a date and |
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time for hearing the application and any opposition, together with |
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the evidence pertaining to the application and opposition. The |
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clerk shall issue a notice to the applicant and to each person who |
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files an opposition to the sale, if applicable, of the date and time |
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of the hearing. |
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(d) The judge may, by entries on the docket, continue a |
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hearing held under this section from time to time until the judge is |
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satisfied concerning the application. |
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SECTION 9.04. Section 346, Texas Probate Code, is amended |
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to read as follows: |
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Sec. 346. ORDER OF SALE. If satisfied [upon hearing] that |
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the sale of the property of the estate described in the application |
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is necessary or advisable, the court shall order the sale to be |
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made; otherwise, the court may deny the application and may, if it |
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deems best, order the sale of other property the sale of which would |
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be more advantageous to the estate. An order for the sale of real |
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estate shall specify: |
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(a) The property to be sold, giving such description |
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as will identify it; and |
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(b) Whether the property is to be sold at public |
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auction or at private sale, and, if at public auction, the time and |
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place of such sale; and |
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(c) The necessity or advisability of the sale and its |
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purpose; and |
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(d) Except in cases in which no general bond is |
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required, that, having examined the general bond of the |
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representative of the estate, the court finds it to be sufficient as |
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required by law, or finds the same to be insufficient and specifies |
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the necessary or increased bond, as the case may be; and |
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(e) That the sale shall be made and the report returned |
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in accordance with law; and |
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(f) The terms of the sale. |
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SECTION 9.05. Section 343, Texas Probate Code, is repealed. |
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SECTION 9.06. The changes in law made by this article apply |
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only to: |
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(1) the estate of a decedent who dies before the |
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effective date of this article, if the probate or administration of |
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the estate is pending on the effective date of this article; and |
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(2) the estate of a decedent who dies on or after the |
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effective date of this article. |
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ARTICLE 10. EFFECTIVE DATE |
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SECTION 10.01. This Act takes effect September 1, 2007, |
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except that Article 8 of this Act takes effect immediately if this |
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Act receives a vote of two-thirds of all the members elected to each |
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house, as provided by Section 39, Article III, Texas Constitution. |
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If this Act does not receive the vote necessary for immediate |
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effect, Article 8 takes effect September 1, 2007. |