By: Wentworth S.B. No. 593
 
 
A BILL TO BE ENTITLED
AN ACT
relating to providing notice to the beneficiaries under a
decedent's will.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
       SECTION 1.  Section 128A, Texas Probate Code, is amended to
read as follows:
       Sec. 128A.  NOTICE TO BENEFICIARIES [CERTAIN ENTITIES] AFTER
PROBATE OF WILL. (a)  In this section, "beneficiary" means a
person, entity, state, governmental agency of the state, charitable
organization, or trust entitled to receive real or personal
property under the terms of a decedent's will, to be determined for
purposes of this section with the assumption that each person who is
alive on the date of the decedent's death survives any period
required to receive the bequest as specified by the terms of the
will.
       (b)  Not later than the 60th day after the date of an order
admitting a decedent's will to probate, the personal representative
of the decedent's estate, including an independent executor or
independent administrator, shall give notice that complies with
Subsection (d) of this section to each beneficiary named in the will
whose identity and address are known to the personal representative
or, through reasonable diligence, can be ascertained. If, after
the 60th day after the date of the order, the personal
representative becomes aware of the identity and address of a
beneficiary who was not given notice on or before the 60th day, the
personal representative shall give the notice as soon as possible
after becoming aware of that information.
       (c)  Notwithstanding the requirement under Subsection (b) of
this section that the personal representative give the notice to
the beneficiary, the personal representative shall give the notice
with respect to a beneficiary described by this subsection as
follows:
             (1)  if the beneficiary is a trust, to the trustee,
unless the personal representative is the trustee, in which case
the personal representative shall give the notice to:
                   (A)  except as provided by Paragraph (B) of this
subdivision, the person, entity, or class first eligible to receive
the trust income, to be determined for purposes of this paragraph as
if the trust were in existence on the date of the decedent's death;
or
                   (B)  the attorney general, if under Paragraph (A)
of this subdivision the notice is required to be given to:
                         (i)  a charitable beneficiary that is no
longer in existence; or
                         (ii)  a class of charitable beneficiaries,
but providing the notice to the class is impracticable because the
class is not composed of natural persons or is unascertainable;
             (2)  if the beneficiary has a court-appointed guardian
or conservator, to that guardian or conservator;
             (3)  if the beneficiary is a minor for whom no guardian
or conservator has been appointed, to a parent of the minor; and
             (4)  if the beneficiary is a charitable beneficiary
that is no longer in existence or is a class of charitable
beneficiaries that is not composed of natural persons or is
unascertainable, to the attorney general.
       (d)  The notice required by this section must:
             (1)  state:
                   (A)  the name and address of the beneficiary to
whom the notice is given or, for a beneficiary described by
Subsection (c) of this section:
                         (i)  the name and address of the beneficiary
for whom the notice is given or, if that beneficiary is a charitable
beneficiary or class of charitable beneficiaries described by
Subsection (c)(4) of this section, a description of the beneficiary
or class of beneficiaries; and
                         (ii)  the name and address of the person to
whom the notice is given;
                   (B)  the decedent's name;
                   (C)  that the decedent's will has been admitted to
probate;
                   (D)  that the beneficiary to whom or for whom the
notice is given is named as a beneficiary in the will;
                   (E)  the personal representative's name and
contact information; and
                   (F)  that the personal representative is a
fiduciary and owes duties to the beneficiary, the beneficiary has
rights under the Texas Probate Code and common law, and the
beneficiary should consider retaining an attorney to advise the
beneficiary of those rights and duties; and
             (2)  contain as attachments a copy of the will admitted
to probate and the order admitting the will to probate.
       (e)  The notice required by this section must be sent by
registered or certified mail, return receipt requested.
       (f)  Not later than the 90th day after the date of an order
admitting a will to probate, the personal representative shall file
with the clerk of the court in which the decedent's estate is
pending a sworn affidavit of the personal representative, or a
certificate signed by the personal representative's attorney,
stating:
             (1)  the name and address of each beneficiary to whom
the personal representative gave the notice and, with respect to
each beneficiary described by Subsection (c) of this section:
                   (A)  the name and address of the beneficiary for
whom the personal representative gave the notice or, if a
beneficiary is a charitable beneficiary or class of charitable
beneficiaries described by Subsection (c)(4) of this section, a
description of the beneficiary or class of beneficiaries; and
                   (B)  the name and address of the person to whom the
personal representative gave the notice;
             (2)  the name of each beneficiary whose identity or
address could not be ascertained despite the personal
representative's exercise of reasonable diligence; and
             (3)  any other information necessary to explain the
personal representative's inability to give the notice to or for
any beneficiary as required by this section.
       (g)  The affidavit or certificate required by Subsection (f)
of this section may be included with any pleading or other document
filed with the clerk of the court, including the inventory,
appraisement, and list of claims or an application for an extension
of the deadline to file the inventory, appraisement, and list of
claims, provided that the pleading or other document with which the
affidavit or certificate is included is filed not later than the
date the affidavit or certificate is required to be filed as
provided by Subsection (f) of this section  [If the address of the
entity can be ascertained with reasonable diligence, an applicant
under Section 81 of this code shall give the state, a governmental
agency of the state, or a charitable organization notice that the
entity is named as a devisee in a written will, a written will not
produced, or a nuncupative will that has been admitted to probate.
       [(b)  The notice required by Subsection (a) of this section
must be given not later than the 30th day after the date of the
probate of the will.
       [(c)  The notice must be in writing and state the county in
which the will was admitted to probate. A copy of the application
and the order admitting the will to probate and, if the application
is for probate of a written will, a copy of the will must be attached
to the notice.
       [(d)  An entity entitled to notice under Subsection (a) of
this section must be notified by registered or certified mail,
return receipt requested.
       [(e)  The applicant must file a copy of the notice with the
court in which the will was admitted to probate].
       SECTION 2.  The heading to Section 128B, Texas Probate Code,
is amended to read as follows:
       Sec. 128B.  NOTICE TO HEIRS ON APPLICATION TO PROBATE [WHEN]
WILL [PROBATED] AFTER FOUR YEARS.
       SECTION 3.  Subsection (a), Section 149C, Texas Probate
Code, is amended to read as follows:
       (a)  The county court, as that term is defined by Section 3 of
this code, on its own motion or on motion of any interested person,
after the independent executor has been cited by personal service
to answer at a time and place fixed in the notice, may remove an
independent executor when:
             (1)  the independent executor fails to return within
ninety days after qualification, unless such time is extended by
order of the court, an inventory of the property of the estate and
list of claims that have come to the independent executor's [his]
knowledge;
             (2)  sufficient grounds appear to support belief that
the independent executor [he] has misapplied or embezzled, or that
the independent executor [he] is about to misapply or embezzle, all
or any part of the property committed to the independent executor's
[his] care;
             (3)  the independent executor [he] fails to make an
accounting which is required by law to be made;
             (4)  the independent executor [he] fails to timely file
the affidavit or certificate [notice] required by Section 128A of
this code;
             (5)  the independent executor [he] is proved to have
been guilty of gross misconduct or gross mismanagement in the
performance of the independent executor's [his] duties; or
             (6)  the independent executor [he] becomes an
incapacitated person, or is sentenced to the penitentiary, or from
any other cause becomes legally incapacitated from properly
performing the independent executor's [his] fiduciary duties.
       SECTION 4.  Subsection (b), Section 222, Texas Probate Code,
is amended to read as follows:
       (b)  With Notice. The court may remove a personal
representative on its own motion, or on the complaint of any
interested person, after the personal representative has been cited
by personal service to answer at a time and place fixed in the
notice, when:
             (1)  Sufficient grounds appear to support belief that
the personal representative [he] has misapplied, embezzled, or
removed from the state, or that the personal representative [he] is
about to misapply, embezzle, or remove from the state, all or any
part of the property committed to the personal representative's
[his] care;
             (2)  The personal representative [He] fails to return
any account which is required by law to be made;
             (3)  The personal representative [He] fails to obey any
proper order of the court having jurisdiction with respect to the
performance of the personal representative's [his] duties;
             (4)  The personal representative [He] is proved to have
been guilty of gross misconduct, or mismanagement in the
performance of the personal representative's [his] duties;
             (5)  The personal representative [He] becomes an
incapacitated person, or is sentenced to the penitentiary, or from
any other cause becomes incapable of properly performing the duties
of the personal representative's [his] trust;
             (6)  As executor or administrator, the personal
representative [he] fails to make a final settlement within three
years after the grant of letters, unless the time be extended by the
court upon a showing of sufficient cause supported by oath; or
             (7)  As executor or administrator, the personal
representative [he] fails to timely file the affidavit or
certificate [notice] required by Section 128A of this code.
       SECTION 5.  The changes in law made by this Act apply only to
the estate of a decedent who dies on or after the effective date of
this Act. The estate of a decedent who dies before the effective
date of this Act is governed by the law in effect on the date of the
decedent's death, and the former law is continued in effect for that
purpose.
       SECTION 6.  This Act takes effect September 1, 2007.