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A BILL TO BE ENTITLED
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AN ACT
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relating to providing notice to devisees under a decedent's will. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Part 4, Chapter V, Texas Probate Code, is amended |
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by adding Section 128C to read as follows: |
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Sec. 128C. NOTICE TO CERTAIN ENTITIES AFTER PROBATE. (a) If |
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the address of the entity can be ascertained with reasonable |
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diligence, an applicant under Section 81 of this code shall give the |
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state, a governmental agency of the state, or a charitable |
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organization notice that the entity is named as a devisee in a |
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written will or a written will not produced that has been admitted |
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to probate. |
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(b) The notice required by Subsection (a) of this section |
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must be given not later than the 30th day after the date of the |
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probate of the will. |
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(c) The notice must be in writing and state the county in |
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which the will was admitted to probate. A copy of the application |
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and of the order admitting the will to probate and, if the |
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application is for probate of a written will, a copy of the will |
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must be attached to the notice. |
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(d) An entity entitled to notice under Subsection (a) of |
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this section must be notified by registered or certified mail, |
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return receipt requested. |
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(e) The applicant must file a copy of the notice with the |
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court in which the will was admitted to probate. |
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SECTION 2. Sections 37A(h) and (i), Texas Probate Code, are |
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amended to read as follows: |
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(h) Filing of Disclaimer. Unless the beneficiary is a |
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charitable organization or governmental agency of the state, a |
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written memorandum of disclaimer disclaiming a present interest |
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shall be filed not later than nine months after the death of the |
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decedent and a written memorandum of disclaimer disclaiming a |
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future interest may be filed not later than nine months after the |
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event determining that the taker of the property or interest is |
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finally ascertained and his interest is indefeasibly vested. If |
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the beneficiary is a charitable organization or a governmental |
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agency of the state, a written memorandum of disclaimer disclaiming |
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a present or future interest shall be filed not later than the first |
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anniversary of the date the beneficiary receives the notice |
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required by Section 128C [128A] of this code, or the expiration of |
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the six-month period following the date the personal representative |
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files the inventory, appraisement, and list of claims due or owing |
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to the estate, whichever occurs later. The written memorandum of |
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disclaimer shall be filed in the probate court in which the |
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decedent's will has been probated or in which proceedings have been |
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commenced for the administration of the decedent's estate or which |
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has before it an application for either of the same; provided, |
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however, if the administration of the decedent's estate is closed, |
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or after the expiration of one year following the date of the |
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issuance of letters testamentary in an independent administration, |
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or if there has been no will of the decedent probated or filed for |
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probate, or if no administration of the decedent's estate has been |
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commenced, or if no application for administration of the |
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decedent's estate has been filed, the written memorandum of |
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disclaimer shall be filed with the county clerk of the county of the |
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decedent's residence, or, if the decedent is not a resident of this |
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state but real property or an interest therein located in this state |
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is disclaimed, a written memorandum of disclaimer shall be filed |
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with the county clerk of the county in which such real property or |
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interest therein is located, and recorded by such county clerk in |
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the deed records of that county. |
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(i) Notice of Disclaimer. Unless the beneficiary is a |
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charitable organization or governmental agency of the state, copies |
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of any written memorandum of disclaimer shall be delivered in |
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person to, or shall be mailed by registered or certified mail to and |
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received by, the legal representative of the transferor of the |
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interest or the holder of legal title to the property to which the |
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disclaimer relates not later than nine months after the death of the |
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decedent or, if the interest is a future interest, not later than |
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nine months after the date the person who will receive the property |
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or interest is finally ascertained and the person's interest is |
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indefeasibly vested. If the beneficiary is a charitable |
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organization or government agency of the state, the notices |
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required by this section shall be filed not later than the first |
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anniversary of the date the beneficiary receives the notice |
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required by Section 128C [128A] of this code, or the expiration of |
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the six-month period following the date the personal representative |
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files the inventory, appraisement, and list of claims due or owing |
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to the estate, whichever occurs later. |
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SECTION 3. Section 149C(a), Texas Probate Code, is amended |
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to read as follows: |
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(a) The county court, as that term is defined by Section 3 of |
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this code, on its own motion or on motion of any interested person, |
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after the independent executor has been cited by personal service |
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to answer at a time and place fixed in the notice, may remove an |
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independent executor when: |
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(1) the independent executor fails to return within |
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ninety days after qualification, unless such time is extended by |
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order of the court, an inventory of the property of the estate and |
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list of claims that have come to the independent executor's |
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knowledge; |
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(2) sufficient grounds appear to support belief that |
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the independent executor has misapplied or embezzled, or that the |
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independent executor is about to misapply or embezzle, all or any |
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part of the property committed to the independent executor's care; |
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(3) the independent executor fails to make an |
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accounting which is required by law to be made; |
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(4) the independent executor fails to timely file the |
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notice [affidavit or certificate] required by Section 128C [128A] |
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of this code; |
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(5) the independent executor is proved to have been |
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guilty of gross misconduct or gross mismanagement in the |
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performance of the independent executor's duties; or |
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(6) the independent executor becomes an incapacitated |
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person, or is sentenced to the penitentiary, or from any other cause |
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becomes legally incapacitated from properly performing the |
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independent executor's fiduciary duties. |
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SECTION 4. Section 222(b), Texas Probate Code, is amended |
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to read as follows: |
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(b) With Notice. The court may remove a personal |
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representative on its own motion, or on the complaint of any |
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interested person, after the personal representative has been cited |
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by personal service to answer at a time and place fixed in the |
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notice, when: |
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(1) Sufficient grounds appear to support belief that |
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the personal representative has misapplied, embezzled, or removed |
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from the state, or that the personal representative is about to |
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misapply, embezzle, or remove from the state, all or any part of the |
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property committed to the personal representative's care; |
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(2) The personal representative fails to return any |
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account which is required by law to be made; |
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(3) The personal representative fails to obey any |
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proper order of the court having jurisdiction with respect to the |
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performance of the personal representative's duties; |
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(4) The personal representative is proved to have been |
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guilty of gross misconduct, or mismanagement in the performance of |
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the personal representative's duties; |
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(5) The personal representative becomes an |
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incapacitated person, or is sentenced to the penitentiary, or from |
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any other cause becomes incapable of properly performing the duties |
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of the personal representative's trust; |
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(6) As executor or administrator, the personal |
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representative fails to make a final settlement within three years |
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after the grant of letters, unless the time be extended by the court |
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upon a showing of sufficient cause supported by oath; or |
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(7) As executor or administrator, the personal |
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representative fails to timely file the notice [affidavit or
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certificate] required by Section 128C [128A] of this code. |
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SECTION 5. Section 128A, Texas Probate Code, as amended by |
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Chapters 801 and 1170, Acts of the 80th Legislature, Regular |
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Session, 2007, is repealed. |
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SECTION 6. The changes in law made by this Act apply only to |
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the estate of a decedent whose will is admitted to probate on or |
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after the effective date of this Act. The estate of a decedent |
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whose will is admitted to probate before the effective date of this |
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Act is governed by the law in effect on the date the decedent's will |
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was admitted to probate, and the former law is continued in effect |
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for that purpose. |
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SECTION 7. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2009. |