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A BILL TO BE ENTITLED
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AN ACT
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relating to jurisdiction and venue of probate proceedings and |
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proceedings regarding powers of attorney and certain trusts. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 3(bb), Texas Probate Code, is amended to |
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read as follows: |
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(bb) "Probate proceeding" is synonymous with the terms |
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"Probate matter," ["Probate proceedings,"] "Proceeding in |
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probate," and "Proceedings for probate." The term means a matter or |
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proceeding relating to the estate of a decedent [are synonymous] |
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and includes: |
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(1) the probate of a will, with or without |
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administration of the estate; |
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(2) the issuance of letters testamentary and of |
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administration; |
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(3) an heirship determination or small estate |
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affidavit, community property administration, and homestead and |
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family allowances; |
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(4) an application, petition, motion, or action |
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regarding the probate of a will or an estate administration, |
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including a claim for money owed by the decedent; |
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(5) a claim arising from an estate administration |
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and any action brought on the claim; |
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(6) the settling of a personal representative's |
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account of an estate and any other matter relating to the |
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settlement, partition, or distribution of an estate; and |
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(7) a will construction suit [include a matter or
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proceeding relating to the estate of a decedent]. |
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SECTION 2. Chapter I, Texas Probate Code, is amended by |
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adding Sections 4A, 4B, 4C, 4D, 4E, 4F, 4G, and 4H to read as |
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follows: |
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Sec. 4A. GENERAL PROBATE COURT JURISDICTION; APPEALS. (a) |
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All probate proceedings must be filed and heard in a court |
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exercising original probate jurisdiction. The court exercising |
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original probate jurisdiction also has jurisdiction of all matters |
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related to the probate proceeding as specified in Section 4B of this |
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code for that type of court. |
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(b) A probate court may exercise pendent and ancillary |
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jurisdiction as necessary to promote judicial efficiency and |
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economy. |
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(c) A final order issued by a probate court is appealable to |
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the court of appeals. |
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Sec. 4B. MATTERS RELATED TO PROBATE PROCEEDING. (a) For |
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purposes of this code, in a county in which there is no statutory |
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probate court or county court at law exercising original probate |
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jurisdiction, a matter related to a probate proceeding includes: |
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(1) an action against a personal representative or |
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former personal representative arising out of the representative's |
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performance of the duties of a personal representative; |
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(2) an action against a surety of a personal |
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representative or former personal representative; |
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(3) a claim brought by a personal representative on |
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behalf of an estate; |
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(4) an action brought against a personal |
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representative in the representative's capacity as personal |
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representative; |
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(5) an action for trial of title to real property that |
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is estate property, including the enforcement of a lien against the |
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property; and |
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(6) an action for trial of the right of property that |
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is estate property. |
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(b) For purposes of this code, in a county in which there is |
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no statutory probate court, but in which there is a county court at |
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law exercising original probate jurisdiction, a matter related to a |
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probate proceeding includes: |
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(1) all matters and actions described in Subsection |
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(a) of this section; |
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(2) the interpretation and administration of a |
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testamentary trust if the will creating the trust has been admitted |
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to probate in the court; and |
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(3) the interpretation and administration of an inter |
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vivos trust created by a decedent whose will has been admitted to |
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probate in the court. |
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(c) For purposes of this code, in a county in which there is |
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a statutory probate court, a matter related to a probate proceeding |
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includes: |
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(1) all matters and actions described in Subsections |
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(a) and (b) of this section; and |
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(2) any cause of action in which a personal |
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representative of an estate pending in the statutory probate court |
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is a party in the representative's capacity as personal |
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representative. |
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Sec. 4C. ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS. |
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(a) In a county in which there is no statutory probate court or |
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county court at law exercising original probate jurisdiction, the |
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county court has original jurisdiction of probate proceedings. |
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(b) In a county in which there is no statutory probate |
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court, but in which there is a county court at law exercising |
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original probate jurisdiction, the county court at law exercising |
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original probate jurisdiction and the county court have concurrent |
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original jurisdiction of probate proceedings, unless otherwise |
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provided by law. The judge of a county court may hear probate |
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proceedings while sitting for the judge of any other county court. |
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(c) In a county in which there is a statutory probate court, |
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the statutory probate court has original jurisdiction of probate |
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proceedings. |
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Sec. 4D. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN |
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COUNTY WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT. |
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(a) In a county in which there is no statutory probate court or |
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county court at law exercising original probate jurisdiction, when |
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a matter in a probate proceeding is contested, the judge of the |
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county court may, on the judge's own motion, or shall, on the motion |
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of any party to the proceeding, according to the motion: |
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(1) request the assignment of a statutory probate |
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court judge to hear the contested matter, as provided by Section |
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25.0022, Government Code; or |
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(2) transfer the contested matter to the district |
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court, which may then hear the contested matter as if originally |
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filed in the district court. |
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(b) If a party to a probate proceeding files a motion for the |
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assignment of a statutory probate court judge to hear a contested |
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matter in the proceeding before the judge of the county court |
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transfers the contested matter to a district court under this |
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section, the county judge shall grant the motion for the assignment |
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of a statutory probate court judge and may not transfer the matter |
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to the district court unless the party withdraws the motion. |
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(c) A party to a probate proceeding may file a motion for the |
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assignment of a statutory probate court judge under this section |
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before a matter in the proceeding becomes contested, and the motion |
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is given effect as a motion for assignment of a statutory probate |
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court judge under Subsection (a) of this section if the matter later |
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becomes contested. |
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(d) Notwithstanding any other law, a transfer of a contested |
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matter in a probate proceeding to a district court under any |
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authority other than the authority provided by this section: |
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(1) is disregarded for purposes of this section; and |
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(2) does not defeat the right of a party to the |
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proceeding to have the matter assigned to a statutory probate court |
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judge in accordance with this section. |
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(e) A statutory probate court judge assigned to a contested |
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matter under this section has the jurisdiction and authority |
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granted to a statutory probate court by this code. On resolution of |
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a contested matter for which a statutory probate court judge is |
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assigned under this section, including any appeal of the matter, |
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the statutory probate court judge shall return the matter to the |
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county court for further proceedings not inconsistent with the |
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orders of the statutory probate court or court of appeals, as |
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applicable. |
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(f) A district court to which a contested matter is |
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transferred under this section has the jurisdiction and authority |
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granted to a statutory probate court by this code. On resolution of |
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a contested matter transferred to the district court under this |
|
section, including any appeal of the matter, the district court |
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shall return the matter to the county court for further proceedings |
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not inconsistent with the orders of the district court or court of |
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appeals, as applicable. |
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(g) The county court shall continue to exercise |
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jurisdiction over the management of the estate, other than a |
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contested matter, until final disposition of the contested matter |
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is made in accordance with this section. After a contested matter |
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is transferred to a district court, any matter related to the |
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probate proceeding may be brought in the district court. The |
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district court in which a matter related to the probate proceeding |
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is filed may, on its own motion or on the motion of any party, find |
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that the matter is not a contested matter and transfer the matter to |
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the county court with jurisdiction of the management of the estate. |
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(h) If a contested matter in a probate proceeding is |
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transferred to a district court under this section, the district |
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court has jurisdiction of any contested matter in the proceeding |
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that is subsequently filed, and the county court shall transfer |
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those contested matters to the district court. If a statutory |
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probate court judge is assigned under this section to hear a |
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contested matter in a probate proceeding, the statutory probate |
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court judge shall be assigned to hear any contested matter in the |
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proceeding that is subsequently filed. |
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(i) The clerk of a district court to which a contested |
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matter in a probate proceeding is transferred under this section |
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may perform in relation to the contested matter any function a |
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county clerk may perform with respect to that type of matter. |
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Sec. 4E. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN |
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COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a county in which |
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there is no statutory probate court, but in which there is a county |
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court at law exercising original probate jurisdiction, when a |
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matter in a probate proceeding is contested, the judge of the county |
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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 |
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county court at law. In addition, the judge of the county court, on |
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the judge's own motion or on the motion of a party to the |
|
proceeding, may transfer the entire proceeding to the county court |
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at law. |
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(b) A county court at law to which a proceeding is |
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transferred under this section may hear the proceeding as if |
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originally filed in that court. If only a contested matter in the |
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proceeding is transferred, on the resolution of the matter, the |
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matter shall be returned to the county court for further |
|
proceedings not inconsistent with the orders of the county court at |
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law. |
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Sec. 4F. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING IN |
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COUNTY WITH STATUTORY PROBATE COURT. (a) In a county in which |
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there is a statutory probate court, the statutory probate court has |
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exclusive jurisdiction of all probate proceedings, regardless of |
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whether contested or uncontested. A cause of action related to the |
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probate proceeding must be brought in a statutory probate court |
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unless the jurisdiction of the statutory probate court is |
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concurrent with the jurisdiction of a district court as provided by |
|
Section 4H of this code or with the jurisdiction of any other court. |
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(b) This section shall be construed in conjunction and in |
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harmony with Section 145 of this code and all other sections of this |
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code relating to independent executors, but may not be construed to |
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expand the court's control over an independent executor. |
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Sec. 4G. JURISDICTION OF STATUTORY PROBATE COURT WITH |
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RESPECT TO TRUSTS AND POWERS OF ATTORNEY. In a county in which |
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there is a statutory probate court, the statutory probate court has |
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jurisdiction of: |
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(1) an action by or against a trustee; |
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(2) an action involving an inter vivos trust, |
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testamentary trust, or charitable trust; |
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(3) an action against an agent or former agent under a |
|
power of attorney arising out of the agent's performance of the |
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duties of an agent; and |
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(4) an action to determine the validity of a power of |
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attorney or to determine an agent's rights, powers, or duties under |
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a power of attorney. |
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Sec. 4H. CONCURRENT JURISDICTION WITH DISTRICT COURT. A |
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statutory probate court has concurrent jurisdiction with the |
|
district court in: |
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(1) a personal injury, survival, or wrongful death |
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action by or against a person in the person's capacity as a personal |
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representative; |
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(2) an action by or against a trustee; |
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(3) an action involving an inter vivos trust, |
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testamentary trust, or charitable trust; |
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(4) an action involving a personal representative of |
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an estate in which each other party aligned with the personal |
|
representative is not an interested person in that estate; |
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(5) an action against an agent or former agent under a |
|
power of attorney arising out of the agent's performance of the |
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duties of an agent; and |
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(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. |
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SECTION 3. Section 5B, Texas Probate Code, is amended to |
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read as follows: |
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Sec. 5B. TRANSFER OF PROCEEDING BY STATUTORY PROBATE COURT. |
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Subject to Section 6B of this code, a [(a) A] judge of a statutory |
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probate court, on the motion of a party to the action or on the |
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motion of a person interested in an estate, may transfer to the |
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statutory probate [his] court from a district, county, or statutory |
|
court a cause of action related to a probate proceeding |
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[appertaining to or incident to an estate] pending in the statutory |
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probate court or a cause of action in which a personal |
|
representative of an estate pending in the statutory probate court |
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is a party [and may consolidate the transferred cause of action with
|
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the other proceedings in the statutory probate court relating to
|
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that estate]. |
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[(b) Notwithstanding any other provision of this chapter, the
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proper venue for an action by or against a personal representative
|
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for personal injury, death, or property damages is determined under
|
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Section 15.007, Civil Practice and Remedies Code.] |
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SECTION 4. Section 6, Texas Probate Code, is amended to read |
|
as follows: |
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Sec. 6. VENUE FOR PROBATE OF WILLS AND GRANT OF LETTERS |
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[ADMINISTRATION OF ESTATES OF DECEDENTS]. Wills shall be admitted |
|
to probate, and letters testamentary or of administration shall be |
|
granted as follows: |
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(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; [.] |
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(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; [.] |
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(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. |
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[(e) In the county where the applicant resides, when
|
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administration is for the purpose only of receiving funds or money
|
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due to a deceased person or his estate from any governmental source
|
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or agency; provided, that unless the mother or father or spouse or
|
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adult child of the deceased is applicant, citation shall be served
|
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personally on the living parents and spouses and adult children, if
|
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any, of the deceased person, or upon those who are alive and whose
|
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addresses are known to the applicant.] |
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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. |
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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. |
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Sec. 6C. VENUE FOR HEIRSHIP PROCEEDINGS. (a) Heirs of a |
|
decedent shall be determined: |
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(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
|
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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
|
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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
|
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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, |
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and duties that a district court has under [Subsection (b),] |
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Section 4D(a) [5], Texas Probate Code, for the transferred |
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proceeding, and the county clerk acts as clerk for the |
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proceeding. The contested proceeding may be transferred between a |
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county court at law in Parker County and a district court in Parker |
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County as provided by local rules of administration. |
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SECTION 11. Sections 4, 5, and 5A, Texas Probate Code, are |
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repealed. |
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SECTION 12. The changes in law made by this Act apply only |
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to an action filed or a proceeding commenced on or after the |
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effective date of this Act. An action filed or proceeding commenced |
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before the effective date of this Act is governed by the law in |
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effect on the date the action was filed or the proceeding was |
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commenced, and the former law is continued in effect for that |
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purpose. |
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SECTION 13. This Act takes effect September 1, 2009. |