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  80R3894 KLA-F
 
  By: Wentworth S.B. No. 1302
 
 
 
   
 
 
A BILL TO BE ENTITLED
AN ACT
relating to the estates of decedents.
       BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. DEFINITIONS AND USE OF TERMS
       SECTION 1.01.  Section 3(r), Texas Probate Code, is amended
to read as follows:
             (r)  "Interested persons" or "persons interested"
means heirs, devisees, spouses, creditors, or any others having a
property right in, or claim against, the estate being administered;
and anyone interested in the welfare of an incapacitated person,
including a minor [or incompetent ward].
       SECTION 1.02.  The changes in law made by this article apply
to a proceeding that is pending or commenced on or after the
effective date of this Act.
ARTICLE 2. DISCLAIMERS
       SECTION 2.01.  Section 37A, Texas Probate Code, is amended
to read as follows:  
       Sec. 37A.  MEANS OF EVIDENCING DISCLAIMER OR RENUNCIATION OF
PROPERTY OR INTEREST RECEIVABLE FROM A DECEDENT. (a)  Persons Who
May Disclaim. Any person, or the guardian of an incapacitated
person, the personal representative of a deceased person, or the
guardian ad litem of an unborn or unascertained person, with prior
court approval of the court having, or which would have,
jurisdiction over such guardian, personal representative, or
guardian ad litem, or any independent executor of a deceased
person, without prior court approval, or an attorney in fact or
agent appointed under a durable power of attorney authorizing
disclaimers that is executed by a principal, who may be entitled to
receive any property as a beneficiary and who intends to effect
disclaimer irrevocably on or after September 1, 1977, of the whole
or any part of such property shall evidence same as herein provided.
       (b)  Effective Date of Disclaimer. A disclaimer evidenced as
provided by this section [herein] shall be effective as of the death
of decedent and shall relate back for all purposes to the death of
the decedent and is not subject to the claims of any creditor of the
disclaimant.
       (c)  Effect of Disclaimer. Unless the decedent's will
provides otherwise, the property subject to the disclaimer shall
pass as if the person disclaiming or on whose behalf a disclaimer is
made had predeceased the decedent and a future interest that would
otherwise take effect in possession or enjoyment after the
termination of the estate or interest that is disclaimed takes
effect as if the disclaiming beneficiary had predeceased the
decedent.
       (d)  Ineffective Disclaimer. Failure to comply with the
provisions of this section [hereof] shall render such disclaimer
ineffective except as an assignment of such property to those who
would have received same had the person attempting the disclaimer
died prior to the decedent.
       (e)  Definitions. The term "property" as used in this
section shall include all legal and equitable interests, powers,
and property, whether present or future, whether vested or
contingent, and whether beneficial or burdensome, in whole or in
part. The term "disclaimer" as used in this section shall include
"renunciation." In this section "beneficiary" includes a person
who would have been entitled, if the person had not made a
disclaimer, to receive property as a result of the death of another
person by inheritance, under a will, by an agreement between
spouses for community property with a right of survivorship, by a
joint tenancy with a right of survivorship, or by any other
survivorship agreement, account, or interest in which the interest
of the decedent passes to a surviving beneficiary, by an insurance,
annuity, endowment, employment, deferred compensation, or other
contract or arrangement, or under a pension, profit sharing,
thrift, stock bonus, life insurance, survivor income, incentive, or
other plan or program providing retirement, welfare, or fringe
benefits with respect to an employee or a self-employed individual.
       (f)  Subsequent Disclaimers. Nothing in this section shall
be construed to preclude a subsequent disclaimer by any person who
shall be entitled to property as a result of a disclaimer.
       (g)  Form [The following shall apply to such disclaimers:
       [(a)Written Memorandum] of Disclaimer [and Filing
Thereof]. In the case of property receivable by a beneficiary, the
disclaimer shall be evidenced by a written memorandum, acknowledged
before a notary public or other person authorized to take
acknowledgements of conveyances of real estate.
       (h)  Filing of Disclaimer. Unless the beneficiary is a
charitable organization or governmental agency of the state, a
written memorandum of disclaimer disclaiming a present interest
shall be filed not later than nine months after the death of the
decedent and a written memorandum of disclaimer disclaiming a
future interest may be filed not later than nine months after the
event determining that the taker of the property or interest is
finally ascertained and his interest is indefeasibly vested. If
the beneficiary is a charitable organization or a governmental
agency of the state, a written memorandum of disclaimer disclaiming
a present or future interest shall be filed not later than nine
months after the beneficiary receives the notice required by
Section 128A of this code. The written memorandum of disclaimer
shall be filed in the probate court in which the decedent's will has
been probated or in which proceedings have been commenced for the
administration of the decedent's estate or which has before it an
application for either of the same; provided, however, if the
administration of the decedent's estate is closed, or after the
expiration of one year following the date of the issuance of letters
testamentary in an independent administration, or if there has been
no will of the decedent probated or filed for probate, or if no
administration of the decedent's estate has been commenced, or if
no application for administration of the decedent's estate has been
filed, the written memorandum of disclaimer shall be filed with the
county clerk of the county of the decedent's residence, or, if the
decedent is not a resident of this state but real property or an
interest therein located in this state is disclaimed, a written
memorandum of disclaimer shall be filed with the county clerk of the
county in which such real property or interest therein is located,
and recorded by such county clerk in the deed records of that
county.
       (i) [(b)]  Notice of Disclaimer. Unless the beneficiary is a
charitable organization or governmental agency of the state, copies
of any written memorandum of disclaimer shall be delivered in
person to, or shall be mailed by registered or certified mail to and
received by, the legal representative of the transferor of the
interest or the holder of legal title to the property to which the
disclaimer relates not later than nine months after the death of the
decedent or, if the interest is a future interest, not later than
nine months after the date the person who will receive the property
or interest is finally ascertained and the person's interest is
indefeasibly vested. If the beneficiary is a charitable
organization or government agency of the state, the notices
required by this section shall be filed not later than nine months
after the beneficiary receives the notice required by Section 128A
of this code.
       (j) [(c)]  Power to Provide for Disclaimer. Nothing herein
shall prevent a person from providing in a will, insurance policy,
employee benefit agreement, or other instrument for the making of
disclaimers by a beneficiary of an interest receivable under that
instrument and for the disposition of disclaimed property in a
manner different from the provisions hereof.
       (k) [(d)]  Irrevocability of Disclaimer. Any disclaimer
filed and served under this section shall be irrevocable.
       (l) [(e)]  Partial Disclaimer. Any person who may be
entitled to receive any property as a beneficiary may disclaim such
property in whole or in part, including but not limited to specific
powers of invasion, powers of appointment, and fee estate in favor
of life estates; and a partial disclaimer or renunciation, in
accordance with the provisions of this section, shall be effective
whether the property so renounced or disclaimed constitutes a
portion of a single, aggregate gift or constitutes part or all of a
separate, independent gift; provided, however, that a partial
disclaimer shall be effective only with respect to property
expressly described or referred to by category in such disclaimer;
and provided further, that a partial disclaimer of property which
is subject to a burdensome interest created by the decedent's will
shall not be effective unless such property constitutes a gift
which is separate and distinct from undisclaimed gifts.
       (m) [(f)]  Partial Disclaimer by Spouse. Without limiting
Subsection (l) [(e)] of this section, a disclaimer by the
decedent's surviving spouse of a transfer by the decedent is not a
disclaimer by the surviving spouse of all or any part of any other
transfer from the decedent to or for the benefit of the surviving
spouse, regardless of whether the property or interest that would
have passed under the disclaimed transfer passes because of the
disclaimer to or for the benefit of the surviving spouse by the
other transfer.
       (n) [(g)]  Disclaimer After Acceptance. No disclaimer shall
be effective after the acceptance of the property by the
beneficiary. For the purpose of this subsection [section],
acceptance shall occur only if the person making such disclaimer
has previously taken possession or exercised dominion and control
of such property in the capacity of beneficiary.
       (o) [(h)]  Interest in Trust Property. A beneficiary who
accepts an interest in a trust is not considered to have a direct or
indirect interest in trust property that relates to a licensed or
permitted business and over which the beneficiary exercises no
control. Direct or indirect beneficial ownership of not more than
five percent of any class of equity securities that is registered
under the Securities Exchange Act of 1934 shall not be deemed to be
an ownership interest in the business of the issuer of such
securities within the meaning of any statute, pursuant thereto.
       SECTION 2.02.  Section 37B(b), Texas Probate Code, is
amended to read as follows:
       (b)  The assignment may, at the request of the assignor, be
filed as provided for the filing of a disclaimer under Section
37A(h) [37A(a)] of this code. The filing requires the service of
notice under Section 37A(i) [37A(b)] of this code.
ARTICLE 3. DISSOLUTION OF MARRIAGE;
EFFECT ON DECEDENTS' ESTATES
       SECTION 3.01.  Chapter II, Texas Probate Code, is amended by
adding Section 47A to read as follows:
       Sec. 47A.  MARRIAGE VOIDABLE BASED ON MENTAL INCAPACITY.  
(a)  An interested person may file an application with the court
requesting that the court void the marriage of a decedent who, on
the date of the decedent's death, was married. The notice
applicable to a proceeding for a declaratory judgment under Chapter
37, Civil Practice and Remedies Code, applies to a proceeding under
this section.
       (b)  Except as provided by Subsection (c) of this section,
the court shall declare the decedent's marriage void if the court
finds that, on the date the marriage occurred, the decedent did not
have the mental capacity to:
             (1)  consent to the marriage; and
             (2)  understand the nature of the marriage ceremony, if
a ceremony occurred.
       (c)  A court that makes a finding described by Subsection (b)
of this section may not declare the decedent's marriage void if the
court finds that, after the date the marriage occurred, the
decedent:
             (1)  gained the mental capacity to recognize the
marriage relationship; and
             (2)  did recognize the marriage relationship.
       (d)  If the court declares a decedent's marriage void in a
proceeding under this section, the other party to the marriage is
not considered the decedent's surviving spouse for purposes of any
law of this state.
       SECTION 3.02.  Section 69, Texas Probate Code, is amended to
read as follows:
       Sec. 69.  WILL PROVISIONS MADE BEFORE DISSOLUTION OF
MARRIAGE [VOIDNESS ARISING FROM DIVORCE]. (a)  In this section,
"relative" means an individual who is related to another individual
by consanguinity or affinity, as determined under Sections 573.022
and 573.024, Government Code, respectively.
       (b)  If, after making a will, the testator's marriage is
dissolved, whether by divorce, annulment, or a declaration that the
marriage is void [testator is divorced or the testator's marriage
is annulled], all provisions in the will, including all fiduciary
appointments [in favor of the testator's former spouse, or
appointing such spouse to any fiduciary capacity under the will or
with respect to the estate or person of the testator's children],
shall [must] be read as if the former spouse and each relative of
the former spouse who is not a relative of the testator failed to
survive the testator, [and shall be null and void and of no effect]
unless the will expressly provides otherwise.
       (c) [(b)]  A person whose marriage to [who is divorced from]
the decedent has been dissolved, whether by divorce, annulment, or
a declaration that the marriage is void, [or whose marriage to the
decedent has been annulled] is not a surviving spouse unless, by
virtue of a subsequent marriage, the person is married to the
decedent at the time of death and the subsequent marriage is not
declared void under Section 47A of this code.
       SECTION 3.03.  Section 6.111, Family Code, is amended to
read as follows:
       Sec. 6.111.  DEATH OF PARTY TO VOIDABLE MARRIAGE. Except as
provided by Section 47A, Texas Probate Code, a [A] marriage subject
to annulment may not be challenged in a proceeding instituted after
the death of either party to the marriage.
       SECTION 3.04.  (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 Act, if the probate or administration of the
estate is pending on or commenced on or after the effective date of
this Act; and
             (2)  the estate of a decedent who dies on or after the
effective date of this Act.
       (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
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.
ARTICLE 4. NUNCUPATIVE, OR ORAL, WILLS
       SECTION 4.01.  Section 82, Texas Probate Code, is amended to
read as follows:
       Sec. 82.  CONTENTS OF APPLICATION FOR LETTERS OF
ADMINISTRATION. An application for letters of administration when
no will[, written or oral,] is alleged to exist shall state:
             (a)  The name and domicile of the applicant,
relationship to the decedent, if any, and that the applicant is not
disqualified by law to act as administrator;
             (b)  The name and intestacy of the decedent, and the
fact, time and place of death;
             (c)  Facts necessary to show venue in the court to which
the application is made;
             (d)  Whether the decedent owned real or personal
property, with a statement of its probable value;
             (e)  The name, age, marital status and address, if
known, and the relationship, if any, of each heir to the decedent;
             (f)  If known by the applicant at the time of the filing
of the application, whether children were born to or adopted by the
decedent, with the name and the date and place of birth of each;
             (g)  If known by the applicant at the time of the filing
of the application, whether the decedent was ever divorced, and if
so, when and from whom; and
             (h)  That a necessity exists for administration of the
estate, alleging the facts which show such necessity.
       SECTION 4.02.  Section 91, Texas Probate Code, is amended to
read as follows:
       Sec. 91.  WHEN WILL NOT IN CUSTODY OF COURT[, OR ORAL].  If
for any reason a written will is not in the custody of the court, [or
if the will is oral,] the court shall find the contents thereof by
written order, and certified copies of same as so established by the
court may be recorded in other counties, and may be used in
evidence, as in the case of certified copies of written wills in the
custody of the court.
       SECTION 4.03.  Section 128(b), Texas Probate Code, is
amended to read as follows:
       (b)  Where Application Is for Probate of a Written Will Not
Produced [or of a Nuncupative Will]. When the application is for the
probate of a [nuncupative will, or of a] written will which cannot
be produced in court, the clerk shall issue a citation to all
parties interested in such estate, which citation shall contain
substantially the statements made in the application for probate,
and the time when, place where, and the court before which such
application will be acted upon. If the heirs of the testator be
residents of this state, and their residence be known, the citation
shall be served upon them by personal service. Service of such
citation may be made by publication in the following cases:
             (1)  When the heirs are non-residents of this state; or
             (2)  When their names or their residences are unknown;
or
             (3)  When they are transient persons.
       SECTION 4.04.  Section 128A(a), Texas Probate Code, is
amended to read as follows:
       (a)  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 or [,] a written will not produced[, or a
nuncupative will] that has been admitted to probate.
       SECTION 4.05.  Sections 64, 65, 81(c), 86, and 89A(c), Texas
Probate Code, are repealed.
       SECTION 4.06.  The changes in law made by this article apply
only to a nuncupative, or oral, will made on or after the effective
date of this Act. A nuncupative, or oral, will made before the
effective date of this Act is governed by the law in effect on the
date the will was made, and the former law is continued in effect
for that purpose.
ARTICLE 5. WRITTEN WILLS NOT PRODUCED
       SECTION 5.01.  Section 85, Texas Probate Code, is amended to
read as follows:
       Sec. 85.  PROOF OF WRITTEN WILL NOT PRODUCED IN COURT.  A
written will which cannot be produced in court shall be proved in
the same manner as provided in the preceding Section for an attested
written will or an holographic will, as the case may be, and the
same amount and character of testimony shall be required to prove
such will as is required to prove a written will produced in court;
but, in addition thereto, the cause of its non-production must be
proved, and such cause must be sufficient to satisfy the court that
it cannot by any reasonable diligence be produced, and the contents
of such will must be substantially proved by the testimony of a
credible witness who has read the will, has [it or] heard the will
[it] read, or can identify a copy of the will.
       SECTION 5.02.  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 Act, if the probate or administration of the
estate is pending on or commenced on or after the effective date of
this Act; and
             (2)  the estate of a decedent who dies on or after the
effective date of this Act.
ARTICLE 6. GRANTING OF ADMINISTRATION OF DECEDENTS' ESTATES
       SECTION 6.01.  Section 83(c), Texas Probate Code, is amended
to read as follows:
       (c)  Where Letters of Administration Have Been Granted.
Whenever letters of administration shall have been granted upon an
estate, and it shall afterwards be discovered that the deceased
left a lawful will, such will may be proved in the manner provided
for the proof of wills; and, if an executor is named in such will,
and he is not disqualified, he shall be allowed to qualify and
accept as such executor, and the letters previously granted shall
be revoked; but, if no such executor be named in the will, or if the
executor named be disqualified, be dead, or shall renounce the
executorship, or shall [neglect or otherwise] fail or be unable to
accept and qualify within twenty days after the date of the probate
of the will, or shall fail [neglect] for a period of thirty days
after the discovery of such will to present it for probate, then
administration with the will annexed of the estate of such testator
shall be granted as in other cases. All acts done by the first
administrator, prior to the qualification of the executor or of the
administrator with the will annexed, shall be as valid as if no such
will had been discovered.
       SECTION 6.02.  Section 178(b), Texas Probate Code, is
amended to read as follows:
       (b)  Letters of Administration. When a person shall die
intestate, or where no executor is named in a will, or where the
executor is dead or shall fail [or neglect] to accept and qualify
within twenty days after the probate of the will, or shall fail
[neglect] for a period of thirty days after the death of the
testator to present the will for probate and the court finds there
was no good cause for not presenting the will for probate during
that period, then administration of the estate of such intestate,
or administration with the will annexed of the estate of such
testator, shall be granted, should administration appear to be
necessary. No administration of any estate shall be granted unless
there exists a necessity therefor, such necessity to be determined
by the court hearing the application. Such necessity shall be
deemed to exist if two or more debts exist against the estate, or if
or when it is desired to have the county court partition the estate
among the distributees, or if the administration is necessary to
receive or recover funds or other property due the estate, but
mention of these three [two] instances of necessity for
administration shall not prevent the court from finding other
instances of necessity upon proof before it.
       SECTION 6.03.  Section 179, Texas Probate Code, is amended
to read as follows:
       Sec. 179.  OPPOSITION TO GRANT OF LETTERS OF ADMINISTRATION.
When application is made for letters of administration, any
interested person may at any time before the application is
granted, file the person's [his] opposition thereto in writing, and
may apply for the grant of letters to the person [himself] or to any
other person; and, upon the trial, the court shall grant letters to
the person that may seem best entitled to them, having regard to
applicable provisions of this Code, without further notice than
that of the original application.
       SECTION 6.04.  Section 190(b), Texas Probate Code, is
amended to read as follows:
       (b)  Administrator. Before the issuance of letters of
administration, the person appointed administrator shall take and
subscribe an oath in form substantially as follows: "I do solemnly
swear that ______, deceased, died without leaving any lawful will
(or that the named executor in any such will is dead or has failed
[or neglected] to offer the same for probate, or to accept and
qualify as executor, within the time required, as the case may be),
so far as I know or believe, and that I will well and truly perform
all the duties of administrator of the estate of said deceased."
       SECTION 6.05.  The changes in law made by this article apply
to an application for the administration of an estate that is
pending on or filed on or after the effective date of this Act.
ARTICLE 7. SALES OF ESTATE PROPERTY
       SECTION 7.01.  Section 344, Texas Probate Code, is amended
to read as follows:
       Sec. 344.  CITATION [AND RETURN] ON APPLICATION. Upon the
filing of such application and exhibit, the clerk shall issue a
citation to all persons interested in the estate, describing the
land or interest or part thereof sought to be sold, and informing
[requiring] them of the right under Section 345 of this code to file
an opposition to the sale during the period prescribed by the court
[to appear at the time set by the court] as shown in the citation
[and show cause why the sale should not be made], if they so elect.
Service of such citation shall be by posting.
       SECTION 7.02.  Section 345, Texas Probate Code, is amended
to read as follows:
       Sec. 345. OPPOSITION TO APPLICATION.  When an application
for an order of sale is made, any person interested in the estate
may, during the period provided in the citation issued under
Section 344 of this code [before an order is made thereon], file his
opposition to the sale, in writing, or may make application for the
sale of other property of the estate.
       SECTION 7.03.  Part 5, Chapter VIII, Texas Probate Code, is
amended by adding Section 345A to read as follows:
       Sec. 345A.  HEARING ON APPLICATION AND ANY OPPOSITION. (a)
The clerk of a court in which an application for an order of sale is
filed shall immediately call to the attention of the judge any
opposition to the sale that is filed during the period provided in
the citation issued under Section 344 of this code. The court shall
hold a hearing on an application if an opposition to the sale is
filed during the period provided in the citation.
       (b)  A hearing on an application for an order of sale is not
required under this section if no opposition to the application is
filed during the period provided in the citation. The court, in its
discretion, may determine that a hearing is necessary on the
application even if no opposition was filed during that period.
       (c)  If the court orders a hearing under Subsection (a) or
(b) of this section, the court shall designate in writing a date and
time for hearing the application and any opposition, together with
the evidence pertaining to the application and opposition. The
clerk shall issue a notice to the applicant and to each person who
files an opposition to the sale, if applicable, of the date and time
of the hearing.
       (d)  The judge may, by entries on the docket, continue a
hearing held under this section from time to time until the judge is
satisfied concerning the application.
       SECTION 7.04.  Section 346, Texas Probate Code, is amended
to read as follows:
       Sec. 346.  ORDER OF SALE. If satisfied [upon hearing] that
the sale of the property of the estate described in the application
is necessary or advisable, the court shall order the sale to be
made; otherwise, the court may deny the application and may, if it
deems best, order the sale of other property the sale of which would
be more advantageous to the estate. An order for the sale of real
estate shall specify:
             (a)  The property to be sold, giving such description
as will identify it; and
             (b)  Whether the property is to be sold at public
auction or at private sale, and, if at public auction, the time and
place of such sale; and
             (c)  The necessity or advisability of the sale and its
purpose; and
             (d)  Except in cases in which no general bond is
required, that, having examined the general bond of the
representative of the estate, the court finds it to be sufficient as
required by law, or finds the same to be insufficient and specifies
the necessary or increased bond, as the case may be; and
             (e)  That the sale shall be made and the report returned
in accordance with law; and
             (f)  The terms of the sale.
       SECTION 7.05.  Section 343, Texas Probate Code, is repealed.
       SECTION 7.06.  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 Act, if the probate or administration of the
estate is pending on the effective date of this Act; and
             (2)  the estate of a decedent who dies on or after the
effective date of this Act.
ARTICLE 8. EFFECTIVE DATE
       SECTION 8.01.  This Act takes effect September 1, 2007.