81R8628 KLA-F

By: Hartnett H.B. No. 3086

A BILL TO BE ENTITLED

AN ACT

relating to jurisdiction and venue of probate proceedings and proceedings regarding powers of attorney and certain trusts.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 3(bb), Texas Probate Code, is amended to read as follows:

(bb) "Probate proceeding" is synonymous with the terms "Probate matter," ["Probate proceedings,"] "Proceeding in probate," and "Proceedings for probate." The term means a matter or proceeding relating to the estate of a decedent [are synonymous] and includes:

(1) the probate of a will, with or without administration of the estate;

(2) the issuance of letters testamentary and of administration;

(3) an heirship determination or small estate affidavit, community property administration, and homestead and family allowances;

(4) an application, petition, motion, or action regarding the probate of a will or an estate administration, including a claim for money owed by the decedent;

(5) a claim arising from an estate administration and any action brought on the claim;

(6) the settling of a personal representative's account of an estate and any other matter relating to the settlement, partition, or distribution of an estate; and

(7) a will construction suit [include a matter or proceeding relating to the estate of a decedent].

SECTION 2. Chapter I, Texas Probate Code, is amended by adding Sections 4A, 4B, 4C, 4D, 4E, 4F, 4G, and 4H to read as follows:

Sec. 4A. GENERAL PROBATE COURT JURISDICTION; APPEALS. (a) All probate proceedings must be filed and heard in a court exercising original probate jurisdiction. The court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding as specified in Section 4B of this code for that type of court.

(b) A probate court may exercise pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.

(c) A final order issued by a probate court is appealable to the court of appeals.

Sec. 4B. MATTERS RELATED TO PROBATE PROCEEDING. (a) For purposes of this code, in a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, a matter related to a probate proceeding includes:

(1) an action against a personal representative or former personal representative arising out of the representative's performance of the duties of a personal representative;

(2) an action against a surety of a personal representative or former personal representative;

(3) a claim brought by a personal representative on behalf of an estate;

(4) an action brought against a personal representative in the representative's capacity as personal representative;

(5) an action for trial of title to real property that is estate property, including the enforcement of a lien against the property; and

(6) an action for trial of the right of property that is estate property.

(b) For purposes of this code, in a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, a matter related to a probate proceeding includes:

(1) all matters and actions described in Subsection (a) of this section;

(2) the interpretation and administration of a testamentary trust if the will creating the trust has been admitted to probate in the court; and

(3) the interpretation and administration of an inter vivos trust created by a decedent whose will has been admitted to probate in the court.

(c) For purposes of this code, in a county in which there is a statutory probate court, a matter related to a probate proceeding includes:

(1) all matters and actions described in Subsections (a) and (b) of this section; and

(2) any cause of action in which a personal representative of an estate pending in the statutory probate court is a party in the representative's capacity as personal representative.

Sec. 4C. ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS. (a) In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, the county court has original jurisdiction of probate proceedings.

(b) In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, the county court at law exercising original probate jurisdiction and the county court have concurrent original jurisdiction of probate proceedings, unless otherwise provided by law. The judge of a county court may hear probate proceedings while sitting for the judge of any other county court.

(c) In a county in which there is a statutory probate court, the statutory probate court has original jurisdiction of probate proceedings.

Sec. 4D. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT. (a) In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the county court may, on the judge's own motion, or shall, on the motion of any party to the proceeding, according to the motion:

(1) request the assignment of a statutory probate court judge to hear the contested matter, as provided by Section 25.0022, Government Code; or

(2) transfer the contested matter to the district court, which may then hear the contested matter as if originally filed in the district court.

(b) If a party to a probate proceeding files a motion for the assignment of a statutory probate court judge to hear a contested matter in the proceeding before the judge of the county court transfers the contested matter to a district court under this section, the county judge shall grant the motion for the assignment of a statutory probate court judge and may not transfer the matter to the district court unless the party withdraws the motion.

(c) A party to a probate proceeding may file a motion for the assignment of a statutory probate court judge under this section before a matter in the proceeding becomes contested, and the motion is given effect as a motion for assignment of a statutory probate court judge under Subsection (a) of this section if the matter later becomes contested.

(d) Notwithstanding any other law, a transfer of a contested matter in a probate proceeding to a district court under any authority other than the authority provided by this section:

(1) is disregarded for purposes of this section; and

(2) does not defeat the right of a party to the proceeding to have the matter assigned to a statutory probate court judge in accordance with this section.

(e) A statutory probate court judge assigned to a contested matter under this section has the jurisdiction and authority granted to a statutory probate court by this code. On resolution of a contested matter for which a statutory probate court judge is assigned under this section, including any appeal of the matter, the statutory probate court judge shall return the matter to the county court for further proceedings not inconsistent with the orders of the statutory probate court or court of appeals, as applicable.

(f) A district court to which a contested matter is transferred under this section has the jurisdiction and authority granted to a statutory probate court by this code. On resolution of a contested matter transferred to the district court under this section, including any appeal of the matter, the district court shall return the matter to the county court for further proceedings not inconsistent with the orders of the district court or court of appeals, as applicable.

(g) The county court shall continue to exercise jurisdiction over the management of the estate, other than a contested matter, until final disposition of the contested matter is made in accordance with this section. After a contested matter is transferred to a district court, any matter related to the probate proceeding may be brought in the district court. The district court in which a matter related to the probate proceeding is filed may, on its own motion or on the motion of any party, find that the matter is not a contested matter and transfer the matter to the county court with jurisdiction of the management of the estate.

(h) If a contested matter in a probate proceeding is transferred to a district court under this section, the district court has jurisdiction of any contested matter in the proceeding that is subsequently filed, and the county court shall transfer those contested matters to the district court. If a statutory probate court judge is assigned under this section to hear a contested matter in a probate proceeding, the statutory probate court judge shall be assigned to hear any contested matter in the proceeding that is subsequently filed.

(i) The clerk of a district court to which a contested matter in a probate proceeding is transferred under this section may perform in relation to the contested matter any function a county clerk may perform with respect to that type of matter.

Sec. 4E. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the county court may, on the judge's own motion, or shall, on the motion of any party to the proceeding, transfer the contested matter to the county court at law. In addition, the judge of the county court, on the judge's own motion or on the motion of a party to the proceeding, may transfer the entire proceeding to the county court at law.

(b) A county court at law to which a proceeding is transferred under this section may hear the proceeding as if originally filed in that court. If only a contested matter in the proceeding is transferred, on the resolution of the matter, the matter shall be returned to the county court for further proceedings not inconsistent with the orders of the county court at law.

Sec. 4F. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested. A cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 4H of this code or with the jurisdiction of any other court.

(b) This section shall be construed in conjunction and in harmony with Section 145 of this code and all other sections of this code relating to independent executors, but may not be construed to expand the court's control over an independent executor.

Sec. 4G. JURISDICTION OF STATUTORY PROBATE COURT WITH RESPECT TO TRUSTS AND POWERS OF ATTORNEY. In a county in which there is a statutory probate court, the statutory probate court has jurisdiction of:

(1) an action by or against a trustee;

(2) an action involving an inter vivos trust, testamentary trust, or charitable trust;

(3) an action against an agent or former agent under a power of attorney arising out of the agent's performance of the duties of an agent; and

(4) an action to determine the validity of a power of attorney or to determine an agent's rights, powers, or duties under a power of attorney.

Sec. 4H. CONCURRENT JURISDICTION WITH DISTRICT COURT. A statutory probate court has concurrent jurisdiction with the district court in:

(1) a personal injury, survival, or wrongful death action by or against a person in the person's capacity as a personal representative;

(2) an action by or against a trustee;

(3) an action involving an inter vivos trust, testamentary trust, or charitable trust;

(4) an action involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate;

(5) an action against an agent or former agent under a power of attorney arising out of the agent's performance of the duties of an agent; and

(6) an action to determine the validity of a power of attorney or to determine an agent's rights, powers, or duties under a power of attorney.

SECTION 3. Section 5B, Texas Probate Code, is amended to read as follows:

Sec. 5B. TRANSFER OF PROCEEDING BY STATUTORY PROBATE COURT. Subject to Section 6B of this code, a [(a) A] judge of a statutory probate court, on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to the statutory probate [his] court from a district, county, or statutory court a cause of action related to a probate proceeding [appertaining to or incident to an estate] pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party [and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate].

[(b) Notwithstanding any other provision of this chapter, the proper venue for an action by or against a personal representative for personal injury, death, or property damages is determined under Section 15.007, Civil Practice and Remedies Code.]

SECTION 4. Section 6, Texas Probate Code, is amended to read as follows:

Sec. 6. VENUE FOR PROBATE OF WILLS AND GRANT OF LETTERS [ADMINISTRATION OF ESTATES OF DECEDENTS]. Wills shall be admitted to probate, and letters testamentary or of administration shall be granted as follows:

(1) in [(a) In] the county where the deceased resided, if the deceased [he] had a domicile or fixed place of residence in this State; [.]

(2) if [(b) If] the deceased had no domicile or fixed place of residence in this State but died in this State, then either in the county where the [his] principal property of the deceased was located at the time of [his] death, or in the county where the deceased [he] died; [.]

(3) if the deceased [(c) If he] had no domicile or fixed place of residence in this State, and died outside the limits of this State, then in any county in this State where the [his] nearest of kin of the deceased reside; and [.]

(4) if the deceased [(d) But if he] had no kindred in this State, then in the county where the [his] principal estate of the deceased was situated at the time of [his] death.

[(e) In the county where the applicant resides, when administration is for the purpose only of receiving funds or money due to a deceased person or his estate from any governmental source or agency; provided, that unless the mother or father or spouse or adult child of the deceased is applicant, citation shall be served personally on the living parents and spouses and adult children, if any, of the deceased person, or upon those who are alive and whose addresses are known to the applicant.]

SECTION 5. Chapter I, Texas Probate Code, is amended by adding Sections 6A, 6B, and 6C to read as follows:

Sec. 6A. VENUE FOR ACTION RELATED TO PROBATE PROCEEDING IN STATUTORY PROBATE COURT. Except as provided by Section 6B of this code:

(1) venue of any cause of action related to a probate proceeding in a statutory probate court is proper in the statutory probate court in which the decedent's estate is pending; and

(2) a statutory probate court judge may transfer a cause of action as provided by Section 5B of this code from another court to the statutory probate court even if venue for the action is proper or mandatory in the county of the court from which the action is to be transferred.

Sec. 6B. VENUE FOR CERTAIN ACTIONS INVOLVING PERSONAL REPRESENTATIVE. Notwithstanding any other provision of this chapter, the proper venue for an action by or against a personal representative for personal injury, death, or property damages related to the personal injury or death is determined under Section 15.007, Civil Practice and Remedies Code.

Sec. 6C. VENUE FOR HEIRSHIP PROCEEDINGS. (a) Heirs of a decedent shall be determined:

(1) in the court of the county in which the proceedings were last pending when the decedent's will has been admitted to probate in this state or an administration has been granted in this state on the decedent's estate;

(2) in the court of the county in which venue would be proper for commencement of an administration of the decedent's estate under Section 6 of this code if no will of the decedent has been admitted to probate in this state and no administration has been granted in this state on the decedent's estate; and

(3) notwithstanding any other provision of this section or Section 6, 6A, or 6B of this code, in a probate court in which the proceedings for the guardianship of the estate of a ward who dies intestate were pending at the time of the ward's death if there is no administration pending in the deceased ward's estate.

(b) A proceeding described by Subsection (a)(3) of this section may be brought in the proceedings for the guardianship of the ward's estate.

SECTION 6. Chapter I, Texas Probate Code, is amended by amending Section 8 and adding Sections 8A and 8B to read as follows:

Sec. 8. CONCURRENT VENUE [AND TRANSFER OF PROCEEDINGS]. (a) Concurrent Venue. When two or more courts have concurrent venue of a probate proceeding [an estate or a proceeding to declare heirship under Section 48(a) of this code], the court in which the probate proceeding [application for a proceeding in probate or determination of heirship] is first filed shall have and retain jurisdiction of the probate [estate or heirship] proceeding, [as appropriate,] to the exclusion of the other court or courts. The proceeding shall be deemed commenced by the filing of an application averring facts sufficient to confer venue; and the proceeding first legally commenced shall extend to all of the property of the decedent or the decedent's estate. Provided, however, that a bona fide purchaser of real property in reliance on any such subsequent proceeding, without knowledge of its invalidity, shall be protected in such purchase unless the decree admitting the will to probate, determining heirship, or granting administration in the prior proceeding is [shall be] recorded in the office of the county clerk of the county in which such property is located.

(b) Probate Proceedings in More Than One County. If a probate proceeding [in probate or to declare heirship under Section 48(a) of this code] is commenced in more than one county, the proceeding shall be stayed except in the county where first commenced until final determination of venue in the county where first commenced. If the proper venue is finally determined to be in another county, the clerk, after making and retaining a true copy of the entire file in the case, shall transmit the original file to the proper county, and the proceeding shall, on the transfer of the file, [thereupon] be had in the proper county in the same manner as if the proceeding had originally been instituted in that county [therein].

Sec. 8A. JURISDICTION TO DETERMINE VENUE. A court in which an application for a probate proceeding has been filed has the authority to determine the venue of that proceeding and of any proceeding related to the probate proceeding, subject to Section 8 of this code. The court's determination is not subject to collateral attack.

Sec. 8B. TRANSFER OF VENUE IN PROBATE PROCEEDINGS. (a) [(c) Transfer of Proceeding.

[(1)] Transfer for Want of Venue. If it appears to the court at any time before the final decree that a probate [the] proceeding was commenced in a court which did not have priority of venue over such proceeding, the court shall, on the application of any interested person, transfer the proceeding to the proper county by transmitting to the proper court in such county the original file in such case, together with certified copies of all entries in the minutes theretofore made, and the probate proceeding [of the will, determination of heirship, or administration of the estate] in such county shall be completed in the same manner as if the proceeding had originally been instituted in that county. However [therein; but], if the question as to priority of venue is not raised before final decree in the proceedings is announced, the finality of such decree shall not be affected by any error in venue.

(b) [(2)] Transfer for Convenience of the Estate. If it appears to the court at any time before the probate proceeding [estate is closed or, if there is no administration of the estate, when the proceeding in probate or to declare heirship] is concluded that it would be in the best interest of the estate or, if there is no administration of the estate, that it would be in the best interest of the heirs or beneficiaries of the decedent's will, the court, in its discretion, may order the proceeding transferred to the proper court in any other county in this State. The clerk of the court from which the proceeding is transferred shall transmit to the court to which the proceeding is transferred the original file in the proceeding and a certified copy of the index.

(c) [(d)] Validation of Prior Proceedings. When a probate proceeding is transferred to another county under any provision of this section or Section 8A of this code [Code], all orders entered in connection with the proceeding shall be valid and shall be recognized in the second court, provided such orders were made and entered in conformance with the procedure prescribed by this code [Code].

[(e) Jurisdiction to Determine Venue. Any court in which there has been filed an application for a proceeding in probate or determination of heirship shall have full jurisdiction to determine the venue of the proceeding in probate or heirship proceeding, and of any proceeding relating thereto, and its determination shall not be subject to collateral attack.]

SECTION 7. Section 48(a), Texas Probate Code, is amended to read as follows:

(a) When a person dies intestate owning or entitled to real or personal property in Texas, and there shall have been no administration in this State upon the decedent's [his] estate; or when there has been a will probated in this State or elsewhere, or an administration in this State upon the estate of such decedent, and any real or personal property in this State has been omitted from such will or from such administration, or no final disposition thereof has been made in such administration, the court of the county in which such proceedings were last pending, or in the event no will of such decedent has been admitted to probate in this State, and no administration has been granted in this State upon the estate of such decedent, then the court of the county in which venue would be proper [for commencement of an administration of the decedent's estate] under Section 6C [6] of this code, may determine and declare in the manner hereinafter provided who are the heirs and only heirs of such decedent, and their respective shares and interests, under the laws of this State, in the estate of such decedent, and proceedings therefor shall be known as proceedings to declare heirship.

SECTION 8. Section 25.0022(i), Government Code, is amended to read as follows:

(i) A judge assigned under this section has the jurisdiction, powers, and duties given by Sections 4A, 4C, 4F, 4G, 4H [5, 5A], 5B, 606, 607, and 608, Texas Probate Code, to statutory probate court judges by general law.

SECTION 9. Section 25.1132(c), Government Code, is amended to read as follows:

(c) A county court at law in Hood County has concurrent jurisdiction with the district court in:

(1) civil cases in which the matter in controversy exceeds $500 but does not exceed $250,000, excluding interest;

(2) family law cases and related proceedings;

(3) contested probate matters under Section 4D(a) [5(b)], Texas Probate Code; and

(4) contested guardianship matters under Section 606(b), Texas Probate Code.

SECTION 10. Section 25.1863(b), Government Code, is amended to read as follows:

(b) A county court at law has concurrent jurisdiction with the district court over contested probate matters. Notwithstanding the requirement in [Subsection (b),] Section 4D(a) [5], Texas Probate Code, that the judge of the constitutional county court transfer a contested probate proceeding to the district court, the judge of the constitutional county court shall transfer the proceeding under that section to either a county court at law in Parker County or a district court in Parker County. A county court at law has the jurisdiction, powers, and duties that a district court has under [Subsection (b),] Section 4D(a) [5], Texas Probate Code, for the transferred proceeding, and the county clerk acts as clerk for the proceeding. The contested proceeding may be transferred between a county court at law in Parker County and a district court in Parker County as provided by local rules of administration.

SECTION 11. Sections 4, 5, and 5A, Texas Probate Code, are repealed.

SECTION 12. The changes in law made by this Act apply only to an action filed or a proceeding commenced on or after the effective date of this Act. An action filed or proceeding commenced before the effective date of this Act is governed by the law in effect on the date the action was filed or the proceeding was commenced, and the former law is continued in effect for that purpose.

SECTION 13. This Act takes effect September 1, 2009.