By: Wentworth S.B. No. 593

(In the Senate - Filed February 13, 2007; February 26, 2007, read first time and referred to Committee on Jurisprudence; March 19, 2007, reported favorably, as amended, by the following vote: Yeas 5, Nays 0; March 19, 2007, sent to printer.)

COMMITTEE AMENDMENT NO. 1 By: Wentworth

Amend S.B. No. 593 (Introduced version) as follows:

(1) In SECTION 1 of the bill, strike proposed Subdivision (1), Subsection (c), Section 128A, Texas Probate Code (page 2, line 68 through page 3, line 5), and substitute the following:

(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) In SECTION 1 of the bill, at the end of proposed Subdivision (2), Subsection (c), Section 128A, Texas Probate Code (page 3, line 7), strike "; and" and substitute an underlined semicolon.

(3) In SECTION 1 of the bill, at the end of proposed Subdivision (3), Subsection (c), Section 128A, Texas Probate Code (page 3, line 9), between "minor" and the underlined period, insert the following: ; 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

(4) In SECTION 1 of the bill, strike proposed Paragraph (A), Subdivision (1), Subsection (d), Section 128A, Texas Probate Code (page 3, lines 12 through 16), and substitute the following:

(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;

(5) In SECTION 1 of the bill, strike proposed Paragraph (F), Subdivision (1), Subsection (d), Section 128A, Texas Probate Code (page 3, lines 24 through 27), and substitute the following:

(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

(6) In SECTION 1 of the bill, in proposed Subsection (f), Section 128A, Texas Probate Code, strike page 3, lines 32 through 46 and substitute the following:

(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;

(7) In SECTION 1 of the bill, at the end of proposed Subsection (f), Section 128A, Texas Probate Code (page 3, line 46), between "section." and "[If the address]", insert the following:

(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.

(8) In SECTION 3 of the bill, in amended Subdivision (4), Subsection (a), Section 149C, Texas Probate Code (page 4, line 19), strike "the affidavit" and substitute "the affidavit or certificate".

(9) In SECTION 4 of the bill, in amended Subdivision (7), Subsection (b), Section 222, Texas Probate Code (page 4, line 57), strike "the affidavit" and substitute "the affidavit or certificate".

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 the person or class of persons first eligible to receive the trust income, to be determined for purposes of this subdivision as if the trust were in existence on the date of the decedent's death;

(2) if the beneficiary has a court-appointed guardian or conservator, to that guardian or conservator; and

(3) if the beneficiary is a minor for whom no guardian or conservator has been appointed, to a parent of the minor.

(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, the name and address of the beneficiary for whom the notice is given and 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 owes the beneficiary a fiduciary duty of full disclosure of all material facts known to the personal representative that may affect the beneficiary's rights; 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 60th 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 an affidavit 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, the name and address of the beneficiary and of the person to whom the notice was given;

(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 [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 [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 [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.

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