|
|
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A BILL TO BE ENTITLED
|
|
AN ACT
|
|
relating to the adoption of a nonsubstantive revision of provisions |
|
of the Texas Probate Code relating to decedents' estates and the |
|
redesignation of certain other provisions of the Texas Probate |
|
Code, including conforming amendments and repeals. |
|
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|
SECTION 1. ESTATES AND GUARDIANSHIPS CODE. The Estates and |
|
Guardianships Code is adopted to read as follows: |
|
ESTATES AND GUARDIANSHIPS CODE |
|
TITLE 1. GENERAL PROVISIONS |
|
CHAPTER 21. PURPOSE AND CONSTRUCTION |
|
CHAPTER 22. DEFINITIONS |
|
[Chapters 23-30 reserved for expansion] |
|
TITLE 2. ESTATES OF DECEDENTS |
|
SUBTITLE A. SCOPE, JURISDICTION, AND COURTS |
|
[Chapters 31-50 reserved for expansion] |
|
SUBTITLE B. PROCEDURAL MATTERS |
|
CHAPTER 51. NOTICES AND PROCESS IN PROBATE PROCEEDINGS |
|
IN GENERAL |
|
CHAPTER 52. FILING AND RECORDKEEPING |
|
CHAPTER 53. OTHER COURT DUTIES AND PROCEDURES |
|
CHAPTER 54. PLEADINGS AND EVIDENCE IN GENERAL |
|
CHAPTER 55. COMPLAINTS AND CONTESTS |
|
CHAPTER 56. CHANGE AND RESIGNATION OF RESIDENT AGENT OF PERSONAL |
|
REPRESENTATIVE FOR SERVICE OF PROCESS |
|
[Chapters 57-100 reserved for expansion] |
|
SUBTITLE C. PASSAGE OF TITLE AND DISTRIBUTION |
|
OF DECEDENTS' PROPERTY IN GENERAL |
|
CHAPTER 101. ESTATE ASSETS IN GENERAL |
|
CHAPTER 102. PROBATE ASSETS: DECEDENT'S HOMESTEAD |
|
[Chapters 103-110 reserved for expansion] |
|
CHAPTER 111. NONPROBATE ASSETS IN GENERAL |
|
CHAPTER 112. COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP |
|
CHAPTER 113. MULTIPLE-PARTY ACCOUNTS |
|
[Chapters 114-120 reserved for expansion] |
|
CHAPTER 121. SURVIVAL REQUIREMENTS |
|
CHAPTER 122. DISCLAIMERS AND ASSIGNMENTS |
|
CHAPTER 123. DISSOLUTION OF MARRIAGE |
|
CHAPTER 124. VALUATION AND TAXATION OF ESTATE PROPERTY |
|
[Chapters 125-150 reserved for expansion] |
|
SUBTITLE D. PROCEEDINGS BEFORE ADMINISTRATION OF ESTATE |
|
CHAPTER 151. EXAMINATION OF DOCUMENTS AND SAFE DEPOSIT BOXES |
|
CHAPTER 152. EMERGENCY INTERVENTION |
|
[Chapters 153-200 reserved for expansion] |
|
SUBTITLE E. INTESTATE SUCCESSION |
|
CHAPTER 201. DESCENT AND DISTRIBUTION |
|
CHAPTER 202. DETERMINATION OF HEIRSHIP |
|
CHAPTER 203. NONJUDICIAL EVIDENCE OF HEIRSHIP |
|
CHAPTER 204. GENETIC TESTING IN PROCEEDINGS TO DECLARE HEIRSHIP |
|
CHAPTER 205. SMALL ESTATE AFFIDAVIT |
|
[Chapters 206-250 reserved for expansion] |
|
SUBTITLE F. WILLS |
|
CHAPTER 251. FUNDAMENTAL REQUIREMENTS AND PROVISIONS |
|
RELATING TO WILLS |
|
CHAPTER 252. SAFEKEEPING AND CUSTODY OF WILLS |
|
CHAPTER 253. CHANGE AND REVOCATION OF WILLS |
|
CHAPTER 254. VALIDITY OF CERTAIN PROVISIONS IN, AND CONTRACTS |
|
RELATING TO, WILLS |
|
CHAPTER 255. CONSTRUCTION AND INTERPRETATION OF WILLS |
|
CHAPTER 256. PROBATE OF WILLS GENERALLY |
|
CHAPTER 257. PROBATE OF WILL AS MUNIMENT OF TITLE |
|
CHAPTER 258. CITATIONS AND NOTICES RELATING TO PROBATE OF WILL |
|
[Chapters 259-300 reserved for expansion] |
|
SUBTITLE G. INITIAL APPOINTMENT OF PERSONAL REPRESENTATIVE |
|
AND OPENING OF ADMINISTRATION |
|
CHAPTER 301. APPLICATION FOR LETTERS TESTAMENTARY |
|
OR OF ADMINISTRATION |
|
[Chapter 302 reserved for expansion] |
|
CHAPTER 303. CITATIONS AND NOTICES IN GENERAL ON OPENING |
|
OF ADMINISTRATION |
|
CHAPTER 304. PERSONS WHO MAY SERVE AS PERSONAL REPRESENTATIVES |
|
CHAPTER 305. QUALIFICATION OF PERSONAL REPRESENTATIVES |
|
CHAPTER 306. GRANTING AND ISSUANCE OF LETTERS |
|
CHAPTER 307. VALIDITY OF CERTAIN ACTS OF EXECUTORS AND |
|
ADMINISTRATORS |
|
CHAPTER 308. NOTICE TO BENEFICIARIES AND CLAIMANTS |
|
CHAPTER 309. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS |
|
CHAPTER 310. ALLOCATION OF ESTATE INCOME AND EXPENSES |
|
[Chapters 311-350 reserved for expansion] |
|
SUBTITLE H. CONTINUATION OF ADMINISTRATION |
|
CHAPTER 351. POWERS AND DUTIES OF PERSONAL REPRESENTATIVES |
|
IN GENERAL |
|
CHAPTER 352. COMPENSATION AND EXPENSES OF PERSONAL |
|
REPRESENTATIVES AND OTHERS |
|
CHAPTER 353. EXEMPT PROPERTY AND FAMILY ALLOWANCE |
|
CHAPTER 354. SUMMARY PROCEEDINGS FOR, OR WITHDRAWAL FROM |
|
ADMINISTRATION OF, CERTAIN ESTATES |
|
CHAPTER 355. PRESENTMENT AND PAYMENT OF CLAIMS |
|
CHAPTER 356. SALE OF ESTATE PROPERTY |
|
CHAPTER 357. RENTING ESTATE PROPERTY |
|
CHAPTER 358. MATTERS RELATING TO MINERAL PROPERTIES |
|
CHAPTER 359. ANNUAL ACCOUNT AND OTHER EXHIBITS AND REPORTS |
|
CHAPTER 360. PARTITION AND DISTRIBUTION OF ESTATE |
|
CHAPTER 361. DEATH, RESIGNATION, OR REMOVAL OF PERSONAL |
|
REPRESENTATIVES; APPOINTMENT OF SUCCESSORS |
|
CHAPTER 362. CLOSING ADMINISTRATION OF ESTATE |
|
[Chapters 363-400 reserved for expansion] |
|
SUBTITLE I. INDEPENDENT ADMINISTRATION |
|
[Chapters 401-450 reserved for expansion] |
|
SUBTITLE J. ADDITIONAL MATTERS RELATING TO THE ADMINISTRATION |
|
OF CERTAIN ESTATES |
|
CHAPTER 451. ORDER OF NO ADMINISTRATION |
|
CHAPTER 452. TEMPORARY ADMINISTRATION OF ESTATES |
|
CHAPTER 453. ADMINISTRATION OF COMMUNITY PROPERTY |
|
CHAPTER 454. ADMINISTRATION OF ESTATE OF PERSON PRESUMED DEAD |
|
[Chapters 455-500 reserved for expansion] |
|
SUBTITLE K. FOREIGN WILLS, OTHER TESTAMENTARY |
|
INSTRUMENTS, AND FIDUCIARIES |
|
CHAPTER 501. ANCILLARY PROBATE OF FOREIGN WILL |
|
CHAPTER 502. ORIGINAL PROBATE OF FOREIGN WILL |
|
CHAPTER 503. RECORDING OF FOREIGN TESTAMENTARY INSTRUMENT |
|
CHAPTER 504. CONTEST OF OR OTHER CHALLENGE TO FOREIGN |
|
TESTAMENTARY INSTRUMENT |
|
CHAPTER 505. FOREIGN PERSONAL REPRESENTATIVES, TRUSTEES, |
|
AND FIDUCIARIES |
|
[Chapters 506-550 reserved for expansion] |
|
SUBTITLE L. PAYMENT OF ESTATES INTO TREASURY |
|
CHAPTER 551. PAYMENT OF CERTAIN ESTATES TO STATE |
|
[Chapters 552-600 reserved for expansion] |
|
SUBTITLE M. DURABLE POWERS OF ATTORNEY |
|
[Chapters 601-650 reserved for expansion] |
|
[Subtitles N-W reserved for expansion] |
|
SUBTITLE X. TEXAS PROBATE CODE: SCOPE, JURISDICTION, |
|
AND COURTS |
|
CHAPTER I. GENERAL PROVISIONS |
|
[Reserved for expansion] |
|
SUBTITLE Y. TEXAS PROBATE CODE: INDEPENDENT ADMINISTRATION |
|
CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION |
|
PART 4. INDEPENDENT ADMINISTRATION |
|
[Reserved for expansion] |
|
SUBTITLE Z. TEXAS PROBATE CODE: DURABLE POWERS OF ATTORNEY |
|
[Reserved for expansion] |
|
[Titles 3-24 reserved for expansion] |
|
TITLE 25. TEXAS PROBATE CODE: GUARDIANSHIP |
|
[Reserved for expansion] |
|
TITLE 1. GENERAL PROVISIONS |
|
CHAPTER 21. |
PURPOSE AND CONSTRUCTION |
|
Sec. 21.001. PURPOSE OF CODE |
|
Sec. 21.002. CONSTRUCTION |
|
Sec. |
21.003. STATUTORY REFERENCES |
|
Sec. 21.004. EFFECT OF DIVISION OF LAW |
|
Sec. 21.005. APPLICABILITY OF CERTAIN LAWS |
|
Sec. 21.006. APPLICABILITY TO PROBATE PROCEEDINGS |
|
CHAPTER 21. PURPOSE AND CONSTRUCTION |
|
Sec. 21.001. PURPOSE OF CODE. (a) This title and Subtitles |
|
A through M, Title 2, are enacted as a part of the state's |
|
continuing statutory revision program, begun by the Texas |
|
Legislative Council in 1963 as directed by the legislature in the |
|
law codified as Section 323.007, Government Code. The program |
|
contemplates a topic-by-topic revision of the state's general and |
|
permanent statute law without substantive change. |
|
(b) Consistent with the objectives of the statutory |
|
revision program, the purpose of this title and Subtitles A through |
|
M, Title 2, is to make the law encompassed by this title and |
|
Subtitles A through M, Title 2, more accessible and understandable |
|
by: |
|
(1) rearranging the statutes into a more logical |
|
order; |
|
(2) employing a format and numbering system designed |
|
to facilitate citation of the law and to accommodate future |
|
expansion of the law; |
|
(3) eliminating repealed, duplicative, |
|
unconstitutional, expired, executed, and other ineffective |
|
provisions; and |
|
(4) restating the law in modern American English to |
|
the greatest extent possible. |
|
(c) The provisions of Subtitles X, Y, and Z of Title 2 and |
|
Title 25 are transferred from the Texas Probate Code and |
|
redesignated as part of this code, but are not revised as part of |
|
the state's continuing statutory revision program. (New.) |
|
Sec. 21.002. CONSTRUCTION. Except as provided by Section |
|
22.027, Chapter 311, Government Code (Code Construction Act), |
|
applies to the construction of a provision of this title or Subtitle |
|
A, B, C, D, E, F, G, H, I, J, K, L, or M, Title 2. That chapter does |
|
not apply to the construction of a provision of Subtitle X, Y, or Z |
|
of Title 2 or Title 25. (New.) |
|
Sec. 21.003. STATUTORY REFERENCES. (a) A reference in a law |
|
other than in this code to a statute or a part of a statute revised |
|
by, or redesignated as part of, this code is considered to be a |
|
reference to the part of this code that revises that statute or part |
|
of that statute or contains the redesignated statute or part of the |
|
statute, as applicable. |
|
(b) A reference in Subtitle X, Y, or Z, Title 2, or Title 25 |
|
to a chapter, a part, a subpart, a section, or any portion of a |
|
section "of this code" is a reference to the chapter, part, subpart, |
|
section, or portion of a section as redesignated in the Estates and |
|
Guardianships Code, except that: |
|
(1) a reference in Subtitle X, Y, or Z, Title 2, or |
|
Title 25 to Chapter I is a reference to Chapter I, Estates and |
|
Guardianships Code, and to the revision of sections derived from |
|
Chapter I, Texas Probate Code, and any reenactments and amendments |
|
to those sections; and |
|
(2) a reference in Subtitle X, Y, or Z, Title 2, or |
|
Title 25 to a chapter, part, subpart, section, or portion of a |
|
section that does not exist in the Estates and Guardianships Code is |
|
a reference to the revision of the corresponding chapter, part, |
|
subpart, section, or portion of a section of the Texas Probate Code |
|
and any reenactments or amendments. (New.) |
|
Sec. 21.004. EFFECT OF DIVISION OF LAW. The division of |
|
this code into titles, subtitles, chapters, subchapters, parts, |
|
subparts, sections, subsections, subdivisions, paragraphs, and |
|
subparagraphs is for convenience and does not have any legal |
|
effect. (Tex. Prob. Code, Sec. 2(c); New.) |
|
Sec. 21.005. APPLICABILITY OF CERTAIN LAWS. |
|
Notwithstanding Section 21.002 of this code and Section 311.002, |
|
Government Code: |
|
(1) Section 311.032(c), Government Code, applies to |
|
Subtitles X, Y, and Z of Title 2 and Title 25; and |
|
(2) Sections 311.005(4) and 311.012(b) and (c), |
|
Government Code, apply to Subtitles X, Y, and Z of Title 2. (New.) |
|
Sec. 21.006. APPLICABILITY TO PROBATE PROCEEDINGS. The |
|
procedure prescribed by Title 2 governs all probate proceedings. |
|
(Tex. Prob. Code, Sec. 2(a) (part).) |
|
CHAPTER 22. DEFINITIONS |
|
|
Sec. 22.001. APPLICABILITY OF DEFINITIONS |
|
Sec. 22.002. AUTHORIZED CORPORATE SURETY |
|
Sec. 22.003. CHARITABLE ORGANIZATION |
|
Sec. 22.004. CHILD |
|
Sec. 22.005. CLAIMS |
|
Sec. 22.006. CORPORATE FIDUCIARY |
|
Sec. |
22.007. COURT; COUNTY COURT, PROBATE COURT, AND |
|
STATUTORY PROBATE COURT |
|
Sec. 22.008. DEVISE |
|
Sec. 22.009. DEVISEE |
|
Sec. 22.010. DISTRIBUTEE |
|
Sec. 22.011. DOCKET |
|
Sec. 22.012. ESTATE |
|
Sec. 22.013. EXEMPT PROPERTY |
|
Sec. 22.014. GOVERNMENTAL AGENCY OF THE STATE |
|
Sec. 22.015. HEIR |
|
Sec. 22.016. INCAPACITATED PERSON |
|
Sec. 22.017. INDEPENDENT EXECUTOR |
|
Sec. 22.018. INTERESTED PERSON; PERSON INTERESTED |
|
Sec. 22.019. JUDGE |
|
Sec. 22.020. LEGACY |
|
Sec. 22.021. LEGATEE |
|
Sec. 22.022. MINOR |
|
Sec. 22.023. MINUTES |
|
Sec. 22.024. MORTGAGE; LIEN |
|
Sec. 22.025. NET ESTATE |
|
Sec. 22.026. NEXT OF KIN |
|
Sec. 22.027. PERSON |
|
Sec. 22.028. PERSONAL PROPERTY |
|
Sec. |
22.029. PROBATE MATTER; PROBATE PROCEEDINGS; |
|
|
|
|
PROBATE |
|
Sec. 22.030. REAL PROPERTY |
|
Sec. 22.031. REPRESENTATIVE; PERSONAL REPRESENTATIVE |
|
Sec. 22.032. SURETY |
|
Sec. 22.033. WARD |
|
Sec. 22.034. WILL |
|
CHAPTER 22. DEFINITIONS |
|
Sec. 22.001. APPLICABILITY OF DEFINITIONS. (a) Except as |
|
provided by Subsection (b), the definition for a term provided by |
|
this chapter applies in this code unless a different meaning of the |
|
term is otherwise apparent from the context in which the term is |
|
used. |
|
(b) If Chapter XIII provides a definition for a term that is |
|
different from the definition provided by this chapter, the |
|
definition for the term provided by Chapter XIII applies in that |
|
chapter. (Tex. Prob. Code, Sec. 3 (part).) |
|
Sec. 22.002. AUTHORIZED CORPORATE SURETY. "Authorized |
|
corporate surety" means a domestic or foreign corporation |
|
authorized to engage in business in this state for the purpose of |
|
issuing surety, guaranty, or indemnity bonds that guarantee the |
|
fidelity of an executor or administrator. (Tex. Prob. Code, Sec. |
|
3(a).) |
|
Sec. 22.003. CHARITABLE ORGANIZATION. "Charitable |
|
organization" means: |
|
(1) a nonprofit corporation, trust, community chest, |
|
fund, foundation, or other entity that is: |
|
(A) exempt from federal income tax under Section |
|
501(a), Internal Revenue Code of 1986, by being described by |
|
Section 501(c)(3) of that code; and |
|
(B) organized and operated exclusively for: |
|
(i) religious, charitable, scientific, |
|
educational, or literary purposes; |
|
(ii) testing for public safety; |
|
(iii) preventing cruelty to children or |
|
animals; or |
|
(iv) promoting amateur sports competition; |
|
or |
|
(2) any other entity that is organized and operated |
|
exclusively for the purposes listed in Section 501(c)(3), Internal |
|
Revenue Code of 1986. (Tex. Prob. Code, Sec. 3(kk).) |
|
Sec. 22.004. CHILD. (a) "Child" includes an adopted child, |
|
regardless of whether the adoption occurred through: |
|
(1) an existing or former statutory procedure; or |
|
(2) acts of estoppel. |
|
(b) The term "child" does not include a child who does not |
|
have a presumed father unless a provision of this code expressly |
|
states that a child who does not have a presumed father is included. |
|
(Tex. Prob. Code, Sec. 3(b).) |
|
Sec. 22.005. CLAIMS. "Claims" includes: |
|
(1) liabilities of a decedent that survive the |
|
decedent's death, including taxes, regardless of whether the |
|
liabilities arise in contract or tort or otherwise; |
|
(2) funeral expenses; |
|
(3) the expense of a tombstone; |
|
(4) expenses of administration; |
|
(5) estate and inheritance taxes; and |
|
(6) debts due such estates. (Tex. Prob. Code, Sec. |
|
3(c).) |
|
Sec. 22.006. CORPORATE FIDUCIARY. "Corporate fiduciary" |
|
means a financial institution, as defined by Section 201.101, |
|
Finance Code, that: |
|
(1) is existing or engaged in business under the laws |
|
of this state, another state, or the United States; |
|
(2) has trust powers; and |
|
(3) is authorized by law to act under the order or |
|
appointment of a court of record, without giving bond, as receiver, |
|
trustee, executor, administrator, or, although the financial |
|
institution does not have general depository powers, depository for |
|
any money paid into the court, or to become sole guarantor or surety |
|
in or on any bond required to be given under the laws of this state. |
|
(Tex. Prob. Code, Sec. 3(d).) |
|
Sec. 22.007. COURT; COUNTY COURT, PROBATE COURT, AND |
|
STATUTORY PROBATE COURT. (a) "Court" means and includes: |
|
(1) a county court in the exercise of its probate |
|
jurisdiction; |
|
(2) a court created by statute and authorized to |
|
exercise original probate jurisdiction; and |
|
(3) a district court exercising original probate |
|
jurisdiction in a contested matter. |
|
(b) The terms "county court" and "probate court" are |
|
synonymous and mean: |
|
(1) a county court in the exercise of its probate |
|
jurisdiction; |
|
(2) a court created by statute and authorized to |
|
exercise original probate jurisdiction; and |
|
(3) a district court exercising probate jurisdiction |
|
in a contested matter. |
|
(c) "Statutory probate court" means a court created by |
|
statute and designated as a statutory probate court under Chapter |
|
25, Government Code. For purposes of this code, the term does not |
|
include a county court at law exercising probate jurisdiction |
|
unless the court is designated a statutory probate court under |
|
Chapter 25, Government Code. (Tex. Prob. Code, Secs. 3(e), (g), |
|
(ii).) |
|
Sec. 22.008. DEVISE. "Devise": |
|
(1) used as a noun, includes a testamentary |
|
disposition of real property, personal property, or both; and |
|
(2) used as a verb, means to dispose of real property, |
|
personal property, or both, by will. (Tex. Prob. Code, Sec. 3(h).) |
|
Sec. 22.009. DEVISEE. "Devisee" includes a legatee. (Tex. |
|
Prob. Code, Sec. 3(i).) |
|
Sec. 22.010. DISTRIBUTEE. "Distributee" means a person who |
|
is entitled to a part of the estate of a decedent under a lawful will |
|
or the statutes of descent and distribution. (Tex. Prob. Code, Sec. |
|
3(j).) |
|
Sec. 22.011. DOCKET. "Docket" means the probate docket. |
|
(Tex. Prob. Code, Sec. 3(k).) |
|
Sec. 22.012. ESTATE. "Estate" means a decedent's property, |
|
as that property: |
|
(1) exists originally and as the property changes in |
|
form by sale, reinvestment, or otherwise; |
|
(2) is augmented by any accretions and other additions |
|
to the property, including any property to be distributed to the |
|
decedent's representative by the trustee of a trust that terminates |
|
on the decedent's death, and substitutions for the property; and |
|
(3) is diminished by any decreases in or distributions |
|
from the property. (Tex. Prob. Code, Sec. 3(l).) |
|
Sec. 22.013. EXEMPT PROPERTY. "Exempt property" means the |
|
property in a decedent's estate that is exempt from execution or |
|
forced sale by the constitution or laws of this state, and any |
|
allowance paid instead of that property. (Tex. Prob. Code, Sec. |
|
3(m).) |
|
Sec. 22.014. GOVERNMENTAL AGENCY OF THE STATE. |
|
"Governmental agency of the state" means: |
|
(1) a municipality; |
|
(2) a county; |
|
(3) a public school district; |
|
(4) a special-purpose district or authority; |
|
(5) a board, commission, department, office, or other |
|
agency in the executive branch of state government, including an |
|
institution of higher education, as defined by Section 61.003, |
|
Education Code; |
|
(6) the legislature or a legislative agency; |
|
(7) the supreme court, the court of criminal appeals, |
|
a court of appeals, or a district, county, or justice of the peace |
|
court; |
|
(8) a judicial agency having statewide jurisdiction; |
|
and |
|
(9) the State Bar of Texas. (Tex. Prob. Code, Sec. |
|
3(ll).) |
|
Sec. 22.015. HEIR. "Heir" means a person who is entitled |
|
under the statutes of descent and distribution to a part of the |
|
estate of a decedent who dies intestate. The term includes the |
|
decedent's surviving spouse. (Tex. Prob. Code, Sec. 3(o).) |
|
Sec. 22.016. INCAPACITATED PERSON. A person is |
|
"incapacitated" if the person: |
|
(1) is a minor; |
|
(2) is an adult who, because of a physical or mental |
|
condition, is substantially unable to: |
|
(A) provide food, clothing, or shelter for |
|
himself or herself; |
|
(B) care for the person's own physical health; or |
|
(C) manage the person's own financial affairs; or |
|
(3) must have a guardian appointed for the person to |
|
receive funds due the person from a governmental source. (Tex. |
|
Prob. Code, Sec. 3(p).) |
|
Sec. 22.017. INDEPENDENT EXECUTOR. "Independent executor" |
|
means the personal representative of an estate under independent |
|
administration as provided by Section 145. The term includes an |
|
independent administrator. (Tex. Prob. Code, Sec. 3(q).) |
|
Sec. 22.018. INTERESTED PERSON; PERSON INTERESTED. |
|
"Interested person" or "person interested" means: |
|
(1) an heir, devisee, spouse, creditor, or any other |
|
having a property right in or claim against an estate being |
|
administered; and |
|
(2) anyone interested in the welfare of an |
|
incapacitated person, including a minor. (Tex. Prob. Code, Sec. |
|
3(r).) |
|
Sec. 22.019. JUDGE. "Judge" means the presiding judge of |
|
any court having original jurisdiction over probate proceedings, |
|
regardless of whether the court is: |
|
(1) a county court in the exercise of its probate |
|
jurisdiction; |
|
(2) a court created by statute and authorized to |
|
exercise probate jurisdiction; or |
|
(3) a district court exercising probate jurisdiction |
|
in a contested matter. (Tex. Prob. Code, Sec. 3(f).) |
|
Sec. 22.020. LEGACY. "Legacy" includes a gift or devise of |
|
real or personal property made by a will. (Tex. Prob. Code, Sec. |
|
3(s) (part).) |
|
Sec. 22.021. LEGATEE. "Legatee" includes a person who is |
|
entitled to a legacy under a will. (Tex. Prob. Code, Sec. 3(s) |
|
(part).) |
|
Sec. 22.022. MINOR. "Minor" means a person younger than 18 |
|
years of age who: |
|
(1) has never been married; and |
|
(2) has not had the disabilities of minority removed |
|
for general purposes. (Tex. Prob. Code, Sec. 3(t).) |
|
Sec. 22.023. MINUTES. "Minutes" means the probate minutes. |
|
(Tex. Prob. Code, Sec. 3(u).) |
|
Sec. 22.024. MORTGAGE; LIEN. "Mortgage" and "lien" |
|
include: |
|
(1) a deed of trust; |
|
(2) a vendor's lien, a mechanic's, materialman's, or |
|
laborer's lien, an attachment or garnishment lien, and a federal or |
|
state tax lien; |
|
(3) a chattel mortgage; |
|
(4) a judgment; and |
|
(5) a pledge by hypothecation. (Tex. Prob. Code, Sec. |
|
3(v).) |
|
Sec. 22.025. NET ESTATE. "Net estate" means a decedent's |
|
property excluding: |
|
(1) homestead rights; |
|
(2) exempt property; |
|
(3) the family allowance; and |
|
(4) an enforceable claim against the decedent's |
|
estate. (Tex. Prob. Code, Sec. 3(w).) |
|
Sec. 22.026. NEXT OF KIN. "Next of kin" includes: |
|
(1) an adopted child or the adopted child's |
|
descendants; and |
|
(2) the adoptive parent of the adopted child. (Tex. |
|
Prob. Code, Sec. 3(jj).) |
|
Sec. 22.027. PERSON. (a) "Person" includes a natural |
|
person and a corporation. |
|
(b) The definition of "person" assigned by Section 311.005, |
|
Government Code, does not apply to any provision in this code. |
|
(Tex. Prob. Code, Sec. 3(x); New.) |
|
Sec. 22.028. PERSONAL PROPERTY. "Personal property" |
|
includes an interest in: |
|
(1) goods; |
|
(2) money; |
|
(3) a chose in action; |
|
(4) an evidence of debt; and |
|
(5) a real chattel. (Tex. Prob. Code, Sec. 3(z).) |
|
Sec. 22.029. PROBATE MATTER; PROBATE PROCEEDINGS; |
|
PROCEEDING IN PROBATE; PROCEEDINGS FOR PROBATE. The terms "probate |
|
matter," "probate proceedings," "proceeding in probate," and |
|
"proceedings for probate" are synonymous and include a matter or |
|
proceeding relating to a decedent's estate. (Tex. Prob. Code, Sec. |
|
3(bb).) |
|
Sec. 22.030. REAL PROPERTY. "Real property" includes |
|
estates and interests in land, whether corporeal or incorporeal or |
|
legal or equitable. The term does not include a real chattel. |
|
(Tex. Prob. Code, Sec. 3(dd).) |
|
Sec. 22.031. REPRESENTATIVE; PERSONAL REPRESENTATIVE. (a) |
|
"Representative" and "personal representative" include: |
|
(1) an executor and independent executor; |
|
(2) an administrator, independent administrator, and |
|
temporary administrator; and |
|
(3) a successor to an executor or administrator listed |
|
in Subdivision (1) or (2). |
|
(b) The inclusion of an independent executor in Subsection |
|
(a) may not be construed to subject an independent executor to the |
|
control of the courts in probate matters with respect to settlement |
|
of estates, except as expressly provided by law. (Tex. Prob. Code, |
|
Sec. 3(aa).) |
|
Sec. 22.032. SURETY. "Surety" includes a personal surety |
|
and a corporate surety. (Tex. Prob. Code, Sec. 3(ee).) |
|
Sec. 22.033. WARD. "Ward" means a person for whom a |
|
guardian has been appointed. (Tex. Prob. Code, Sec. 3(mm).) |
|
Sec. 22.034. WILL. "Will" includes: |
|
(1) a codicil; and |
|
(2) a testamentary instrument that merely: |
|
(A) appoints an executor or guardian; |
|
(B) directs how property may not be disposed of; |
|
or |
|
(C) revokes another will. (Tex. Prob. Code, Sec. |
|
3(ff).) |
|
[Chapters 23-30 reserved for expansion] |
|
TITLE 2. ESTATES OF DECEDENTS |
|
SUBTITLE A. SCOPE, JURISDICTION, AND COURTS |
|
[Chapters 31-50 reserved for expansion] |
|
SUBTITLE B. PROCEDURAL MATTERS |
|
CHAPTER 51. NOTICES AND PROCESS IN PROBATE PROCEEDINGS IN GENERAL |
|
|
SUBCHAPTER A. ISSUANCE AND FORM OF NOTICE OR PROCESS |
|
|
Sec. 51.001. ISSUANCE OF NOTICE OR PROCESS IN GENERAL |
|
Sec. 51.002. DIRECTION OF WRIT OR OTHER PROCESS |
|
Sec. 51.003. CONTENTS OF CITATION OR NOTICE |
|
[Sections 51.004-51.050 reserved for expansion] |
|
SUBCHAPTER B. METHODS OF SERVING CITATION OR NOTICE; PERSONS |
|
|
TO BE SERVED |
|
Sec. 51.051. PERSONAL SERVICE |
|
Sec. 51.052. SERVICE BY MAIL |
|
Sec. 51.053. SERVICE BY POSTING |
|
Sec. 51.054. SERVICE BY PUBLICATION |
|
Sec. 51.055. SERVICE ON PARTY'S ATTORNEY OF RECORD |
|
Sec. |
51.056. SERVICE ON PERSONAL REPRESENTATIVE OR |
|
RECEIVER |
|
[Sections 51.057-51.100 reserved for expansion] |
|
SUBCHAPTER C. RETURN AND PROOF OF SERVICE OF CITATION OR NOTICE |
|
|
Sec. |
51.101. REQUIREMENTS FOR RETURN ON CITATION OR |
|
NOTICE SERVED BY PERSONAL SERVICE |
|
Sec. |
51.102. VALIDITY OF SERVICE AND RETURN ON |
|
CITATION OR NOTICE SERVED BY POSTING |
|
Sec. 51.103. PROOF OF SERVICE |
|
Sec. 51.104. RETURN TO COURT |
|
[Sections 51.105-51.150 reserved for expansion] |
|
SUBCHAPTER D. ALTERNATIVE MANNER OF ISSUANCE, SERVICE, AND RETURN |
|
|
Sec. |
51.151. COURT-ORDERED ISSUANCE, SERVICE, AND |
|
RETURN UNDER CERTAIN CIRCUMSTANCES |
|
[Sections 51.152-51.200 reserved for expansion] |
|
SUBCHAPTER E. ADDITIONAL NOTICE PROVISIONS |
|
|
Sec. 51.201. WAIVER OF NOTICE OF HEARING |
|
Sec. 51.202. REQUEST FOR NOTICE OF FILING OF PLEADING |
|
Sec. |
51.203. SERVICE OF NOTICE OF INTENTION TO TAKE |
|
DEPOSITIONS IN CERTAIN MATTERS |
|
CHAPTER 51. NOTICES AND PROCESS IN PROBATE PROCEEDINGS IN GENERAL |
|
SUBCHAPTER A. ISSUANCE AND FORM OF NOTICE OR PROCESS |
|
Sec. 51.001. ISSUANCE OF NOTICE OR PROCESS IN GENERAL. (a) |
|
Except as provided by Subsection (b), a person is not required to be |
|
cited or otherwise given notice except in a situation in which this |
|
title expressly provides for citation or the giving of notice. |
|
(b) If this title does not expressly provide for citation or |
|
the issuance or return of notice in a probate matter, the court may |
|
require that notice be given. A court that requires that notice be |
|
given may prescribe the form and manner of service of the notice and |
|
the return of service. |
|
(c) Unless a court order is required by this title, the |
|
county clerk without a court order shall issue: |
|
(1) necessary citations, writs, and other process in a |
|
probate matter; and |
|
(2) all notices not required to be issued by a personal |
|
representative. (Tex. Prob. Code, Secs. 33(a), (b).) |
|
Sec. 51.002. DIRECTION OF WRIT OR OTHER PROCESS. (a) A |
|
writ or other process other than a citation or notice must be |
|
directed "To any sheriff or constable within the State of Texas." |
|
(b) Notwithstanding Subsection (a), a writ or other process |
|
other than a citation or notice may not be held defective because |
|
the process is directed to the sheriff or a constable of a named |
|
county if the process is properly served within that county by the |
|
sheriff or constable. (Tex. Prob. Code, Sec. 33(c) (part).) |
|
Sec. 51.003. CONTENTS OF CITATION OR NOTICE. (a) A |
|
citation or notice must: |
|
(1) be directed to the person to be cited or notified; |
|
(2) be dated; |
|
(3) state the style and number of the proceeding; |
|
(4) state the court in which the proceeding is |
|
pending; |
|
(5) describe generally the nature of the proceeding or |
|
matter to which the citation or notice relates; |
|
(6) direct the person being cited or notified to |
|
appear by filing a written contest or answer or to perform another |
|
required action; and |
|
(7) state when and where the appearance or performance |
|
described by Subdivision (6) is required. |
|
(b) A citation or notice issued by the county clerk must be |
|
styled "The State of Texas" and be signed by the clerk under the |
|
clerk's seal. |
|
(c) A notice required to be given by a personal |
|
representative must be in writing and be signed by the |
|
representative in the representative's official capacity. |
|
(d) A citation or notice is not required to contain a |
|
precept directed to an officer, but may not be held defective |
|
because the citation or notice contains a precept directed to an |
|
officer authorized to serve the citation or notice. (Tex. Prob. |
|
Code, Sec. 33(c) (part).) |
|
[Sections 51.004-51.050 reserved for expansion] |
|
SUBCHAPTER B. METHODS OF SERVING CITATION OR NOTICE; PERSONS |
|
TO BE SERVED |
|
Sec. 51.051. PERSONAL SERVICE. (a) Except as otherwise |
|
provided by Subsection (b), if personal service of citation or |
|
notice is required, the citation or notice must be served on the |
|
attorney of record for the person to be cited or notified. |
|
Notwithstanding the requirement of personal service, service may be |
|
made on that attorney by any method specified by Section 51.055 for |
|
service on an attorney of record. |
|
(b) If the person to be cited or notified does not have an |
|
attorney of record in the proceeding, or if an attempt to serve the |
|
person's attorney is unsuccessful: |
|
(1) the sheriff or constable shall serve the citation |
|
or notice by delivering a copy of the citation or notice to the |
|
person to be cited or notified, in person, if the person to whom the |
|
citation or notice is directed is in this state; or |
|
(2) any disinterested person competent to make an oath |
|
that the citation or notice was served may serve the citation or |
|
notice, if the person to be cited or notified is absent from or is |
|
not a resident of this state. |
|
(c) The return day of the citation or notice served under |
|
Subsection (b) must be at least 10 days after the date of service, |
|
excluding the date of service. |
|
(d) If citation or notice attempted to be served as provided |
|
by Subsection (b) is returned with the notation that the person |
|
sought to be served, whether inside or outside this state, cannot be |
|
found, the county clerk shall issue a new citation or notice. |
|
Service of the new citation or notice must be made by publication. |
|
(Tex. Prob. Code, Sec. 33(f)(1) (part).) |
|
Sec. 51.052. SERVICE BY MAIL. (a) The county clerk, or the |
|
personal representative if required by statute or court order, |
|
shall serve a citation or notice required or permitted to be served |
|
by regular mail by mailing the original citation or notice to the |
|
person to be cited or notified. |
|
(b) Except as provided by Subsection (c), the county clerk |
|
shall issue a citation or notice required or permitted to be served |
|
by registered or certified mail and shall serve the citation or |
|
notice by mailing the original citation or notice by registered or |
|
certified mail. |
|
(c) A personal representative shall issue a notice required |
|
to be given by the representative by registered or certified mail |
|
and shall serve the notice by mailing the original notice by |
|
registered or certified mail. |
|
(d) The county clerk or personal representative, as |
|
applicable, shall mail a citation or notice under Subsection (b) or |
|
(c) with an instruction to deliver the citation or notice to the |
|
addressee only and with return receipt requested. The clerk or |
|
representative, as applicable, shall address the envelope |
|
containing the citation or notice to: |
|
(1) the attorney of record in the proceeding for the |
|
person to be cited or notified; or |
|
(2) the person to be cited or notified, if the citation |
|
or notice to the attorney is returned undelivered or the person to |
|
be cited or notified has no attorney of record in the proceeding. |
|
(e) Service by mail shall be made at least 20 days before the |
|
return day of the service, excluding the date of service. The date |
|
of service by mail is the date of mailing. |
|
(f) A copy of a citation or notice served under Subsection |
|
(a), (b), or (c), together with a certificate of the person serving |
|
the citation or notice showing that the citation or notice was |
|
mailed and the date of the mailing, shall be filed and recorded. A |
|
returned receipt for a citation or notice served under Subsection |
|
(b) or (c) shall be attached to the certificate. |
|
(g) If a citation or notice served by mail is returned |
|
undelivered, a new citation or notice shall be issued. Service of |
|
the new citation or notice must be made by posting. (Tex. Prob. |
|
Code, Sec. 33(f)(4).) |
|
Sec. 51.053. SERVICE BY POSTING. (a) The county clerk |
|
shall deliver the original and a copy of a citation or notice |
|
required to be posted to the sheriff or a constable of the county in |
|
which the proceeding is pending. The sheriff or constable shall |
|
post the copy at the door of the county courthouse or the location |
|
in or near the courthouse where public notices are customarily |
|
posted. |
|
(b) Citation or notice under this section must be posted for |
|
at least 10 days before the return day of the service, excluding the |
|
date of posting, except as provided by Section 51.102(b). The date |
|
of service of citation or notice by posting is the date of posting. |
|
(c) A sheriff or constable who posts a citation or notice |
|
under this section shall return the original citation or notice to |
|
the county clerk and state the date and location of the posting in a |
|
written return on the citation or notice. |
|
(d) The method of service prescribed by this section applies |
|
when a personal representative is required or permitted to post a |
|
notice. The notice must be: |
|
(1) issued in the name of the representative; |
|
(2) addressed and delivered to, and posted and |
|
returned by, the appropriate officer; and |
|
(3) filed with the county clerk. (Tex. Prob. Code, |
|
Sec. 33(f)(2).) |
|
Sec. 51.054. SERVICE BY PUBLICATION. (a) Citation or |
|
notice to a person to be served by publication shall be published |
|
one time in a newspaper of general circulation in the county in |
|
which the proceeding is pending. The publication must be made at |
|
least 10 days before the return day of the service, excluding the |
|
date of publication. |
|
(b) The date of service of citation or notice by publication |
|
is the date of publication printed on the newspaper in which the |
|
citation or notice is published. |
|
(c) If no newspaper is published, printed, or of general |
|
circulation in the county in which the citation or notice is to be |
|
published, the citation or notice under Subsection (a) shall be |
|
served by posting. (Tex. Prob. Code, Sec. 33(f)(3).) |
|
Sec. 51.055. SERVICE ON PARTY'S ATTORNEY OF RECORD. (a) If |
|
a party is represented by an attorney of record in a probate |
|
proceeding, each citation or notice required to be served on the |
|
party in that proceeding shall be served instead on that attorney. |
|
A notice under this subsection may be served by delivery to the |
|
attorney in person or by registered or certified mail. |
|
(b) A notice may be served on an attorney of record under |
|
this section by: |
|
(1) another party to the proceeding; |
|
(2) the attorney of record for another party to the |
|
proceeding; |
|
(3) the appropriate sheriff or constable; or |
|
(4) any other person competent to testify. |
|
(c) Each of the following is prima facie evidence of the |
|
fact that service has been made under this section: |
|
(1) the written statement of an attorney of record |
|
showing service; |
|
(2) the return of the officer showing service; and |
|
(3) the affidavit of any other person showing service. |
|
(Tex. Prob. Code, Sec. 34.) |
|
Sec. 51.056. SERVICE ON PERSONAL REPRESENTATIVE OR |
|
RECEIVER. Unless this title expressly provides for another method |
|
of service, the county clerk who issues a citation or notice |
|
required to be served on a personal representative or receiver |
|
shall serve the citation or notice by mailing the original citation |
|
or notice by registered or certified mail to: |
|
(1) the representative's or receiver's attorney of |
|
record; or |
|
(2) the representative or receiver, if the |
|
representative or receiver does not have an attorney of record. |
|
(Tex. Prob. Code, Sec. 33(e).) |
|
[Sections 51.057-51.100 reserved for expansion] |
|
SUBCHAPTER C. RETURN AND PROOF OF SERVICE OF CITATION OR NOTICE |
|
Sec. 51.101. REQUIREMENTS FOR RETURN ON CITATION OR NOTICE |
|
SERVED BY PERSONAL SERVICE. The return of the person serving a |
|
citation or notice under Section 51.051 must: |
|
(1) be endorsed on or attached to the citation or |
|
notice; |
|
(2) state the date and place of service; |
|
(3) certify that a copy of the citation or notice was |
|
delivered to the person directed to be served; |
|
(4) be subscribed and sworn to before, and under the |
|
hand and official seal of, an officer authorized by the laws of this |
|
state to take an affidavit; and |
|
(5) be returned to the county clerk who issued the |
|
citation or notice. (Tex. Prob. Code, Sec. 33(f)(1) (part).) |
|
Sec. 51.102. VALIDITY OF SERVICE AND RETURN ON CITATION OR |
|
NOTICE SERVED BY POSTING. (a) A citation or notice in a probate |
|
matter that is required to be served by posting and is issued in |
|
conformity with this title, and the service and return of service of |
|
the citation or notice, is valid if: |
|
(1) a sheriff or constable posts a copy of the citation |
|
or notice at the location or locations prescribed by this title; and |
|
(2) the posting occurs on a day preceding the return |
|
day of service specified in the citation or notice that provides |
|
sufficient time for the period the citation or notice must be posted |
|
to expire before the specified return day. |
|
(b) The fact that a sheriff or constable, as applicable, |
|
makes the return of service on the citation or notice described by |
|
Subsection (a) and returns the citation or notice on which the |
|
return has been made to the court before the expiration of the |
|
period the citation or notice must be posted does not affect the |
|
validity of the citation or notice or the service or return of |
|
service. This subsection applies even if the sheriff or constable |
|
makes the return of service and returns the citation or notice on |
|
which the return is made to the court on the same day the citation or |
|
notice is issued. (Tex. Prob. Code, Sec. 33(h).) |
|
Sec. 51.103. PROOF OF SERVICE. (a) Proof of service in |
|
each case requiring citation or notice must be filed before the |
|
hearing. |
|
(b) Proof of service consists of: |
|
(1) if the service is made by a sheriff or constable, |
|
the return of service; |
|
(2) if the service is made by a private person, the |
|
person's affidavit; |
|
(3) if the service is made by mail: |
|
(A) the certificate of the county clerk making |
|
the service, or the affidavit of the personal representative or |
|
other person making the service, stating that the citation or |
|
notice was mailed and the date of the mailing; and |
|
(B) the return receipt attached to the |
|
certificate or affidavit, as applicable, if the mailing was by |
|
registered or certified mail and a receipt has been returned; and |
|
(4) if the service is made by publication, an |
|
affidavit: |
|
(A) made by the publisher of the newspaper in |
|
which the citation or notice was published or an employee of the |
|
publisher; |
|
(B) that contains or to which is attached a copy |
|
of the published citation or notice; and |
|
(C) that states the date of publication printed |
|
on the newspaper in which the citation or notice was published. |
|
(Tex. Prob. Code, Sec. 33(i).) |
|
Sec. 51.104. RETURN TO COURT. A citation or notice issued |
|
by a county clerk must be returned to the court from which the |
|
citation or notice was issued on the first Monday after the service |
|
is perfected. (Tex. Prob. Code, Sec. 33(g).) |
|
[Sections 51.105-51.150 reserved for expansion] |
|
SUBCHAPTER D. ALTERNATIVE MANNER OF ISSUANCE, SERVICE, AND RETURN |
|
Sec. 51.151. COURT-ORDERED ISSUANCE, SERVICE, AND RETURN |
|
UNDER CERTAIN CIRCUMSTANCES. (a) A citation or notice required by |
|
this title shall be issued, served, and returned in the manner |
|
specified by written order of the court in accordance with this |
|
title and the Texas Rules of Civil Procedure if: |
|
(1) an interested person requests that action; |
|
(2) a specific method is not provided by this title for |
|
giving the citation or notice; |
|
(3) a specific method is not provided by this title for |
|
the service and return of citation or notice; or |
|
(4) a provision relating to a matter described by |
|
Subdivision (2) or (3) is inadequate. |
|
(b) Citation or notice issued, served, and returned in the |
|
manner specified by a court order as provided by Subsection (a) has |
|
the same effect as if the manner of service and return had been |
|
specified by this title. (Tex. Prob. Code, Sec. 33(d).) |
|
[Sections 51.152-51.200 reserved for expansion] |
|
SUBCHAPTER E. ADDITIONAL NOTICE PROVISIONS |
|
Sec. 51.201. WAIVER OF NOTICE OF HEARING. (a) A legally |
|
competent person who is interested in a hearing in a probate |
|
proceeding may waive notice of the hearing in writing either in |
|
person or through an attorney. |
|
(b) A trustee of a trust may waive notice under Subsection |
|
(a) on behalf of a beneficiary of the trust as provided by that |
|
subsection. |
|
(c) A consul or other representative of a foreign government |
|
whose appearance has been entered as provided by law on behalf of a |
|
person residing in a foreign country may waive notice under |
|
Subsection (a) on the person's behalf as provided by that |
|
subsection. |
|
(d) A person who submits to the jurisdiction of the court in |
|
a hearing is considered to have waived notice of the hearing. (Tex. |
|
Prob. Code, Sec. 35.) |
|
Sec. 51.202. REQUEST FOR NOTICE OF FILING OF PLEADING. (a) |
|
At any time after an application is filed to commence a probate |
|
proceeding, including a proceeding for the probate of a will, the |
|
grant of letters testamentary or of administration, or a |
|
determination of heirship, a person interested in the estate may |
|
file with the county clerk a written request to be notified of all, |
|
or any specified, motions, applications, or pleadings filed with |
|
respect to the proceeding by any person or by one or more persons |
|
specifically named in the request. A person filing a request under |
|
this section is responsible for payment of the fees and other costs |
|
of providing a requested notice, and the clerk may require a deposit |
|
to cover the estimated costs of providing the notice. Thereafter, |
|
the clerk shall send to the requestor by regular mail a copy of any |
|
requested document. |
|
(b) A county clerk's failure to comply with a request under |
|
this section does not invalidate any proceeding. (Tex. Prob. Code, |
|
Sec. 33(j).) |
|
Sec. 51.203. SERVICE OF NOTICE OF INTENTION TO TAKE |
|
DEPOSITIONS IN CERTAIN MATTERS. (a) If a will is to be probated, or |
|
in another probate matter in which there is no opposing party or |
|
attorney of record on whom to serve notice and copies of |
|
interrogatories, service may be made by posting notice of the |
|
intention to take depositions for a period of 10 days as provided by |
|
Section 51.053 governing a posting of notice. |
|
(b) When notice by posting under Subsection (a) is filed |
|
with the county clerk, a copy of the interrogatories must also be |
|
filed. |
|
(c) At the expiration of the 10-day period prescribed by |
|
Subsection (a): |
|
(1) commission may issue for taking the depositions |
|
for which the notice was posted; and |
|
(2) the judge may file cross-interrogatories if no |
|
person appears. (Tex. Prob. Code, Sec. 22 (part).) |
|
CHAPTER 52. FILING AND RECORDKEEPING |
|
|
SUBCHAPTER A. RECORDKEEPING REQUIREMENTS |
|
|
Sec. 52.001. PROBATE DOCKET |
|
Sec. 52.002. CLAIM DOCKET |
|
Sec. 52.003. PROBATE FEE BOOK |
|
Sec. 52.004. ALTERNATE RECORDKEEPING |
|
[Sections 52.005-52.050 reserved for expansion] |
|
SUBCHAPTER B. FILES; INDEX |
|
|
Sec. 52.051. FILING PROCEDURES |
|
Sec. 52.052. CASE FILES |
|
Sec. 52.053. INDEX |
|
CHAPTER 52. FILING AND RECORDKEEPING |
|
SUBCHAPTER A. RECORDKEEPING REQUIREMENTS |
|
Sec. 52.001. PROBATE DOCKET. (a) The county clerk shall |
|
maintain a record book titled "Judge's Probate Docket" and shall |
|
record in the book: |
|
(1) the name of each person with respect to whom, or |
|
with respect to whose estate, proceedings are commenced or sought |
|
to be commenced; |
|
(2) the name of each executor, administrator, or |
|
applicant for letters testamentary or of administration; |
|
(3) the date each original application for probate |
|
proceedings is filed; |
|
(4) a minute of each order, judgment, decree, and |
|
proceeding that occurs in each estate, including the date it |
|
occurs; and |
|
(5) the docket number of each estate as assigned under |
|
Subsection (b). |
|
(b) The county clerk shall assign a docket number to each |
|
estate in the order proceedings are commenced. (Tex. Prob. Code, |
|
Sec. 13 (part).) |
|
Sec. 52.002. CLAIM DOCKET. (a) The county clerk shall |
|
maintain a record book titled "Claim Docket" and shall record in the |
|
book each claim that is presented against an estate for the court's |
|
approval. |
|
(b) The county clerk shall assign one or more pages of the |
|
record book to each estate. |
|
(c) The claim docket must be ruled in 16 columns at proper |
|
intervals from top to bottom, with a short note of the contents at |
|
the top of each column. The county clerk shall record for each |
|
claim, in the order claims are filed, the following information in |
|
the respective columns, beginning with the first or marginal |
|
column: |
|
(1) the name of the claimant; |
|
(2) the amount of the claim; |
|
(3) the date of the claim; |
|
(4) the date the claim is filed; |
|
(5) the date the claim is due; |
|
(6) the date the claim begins bearing interest; |
|
(7) the interest rate; |
|
(8) the date the claim is allowed by the executor or |
|
administrator, if applicable; |
|
(9) the amount allowed by the executor or |
|
administrator, if applicable; |
|
(10) the date the claim is rejected, if applicable; |
|
(11) the date the claim is approved, if applicable; |
|
(12) the amount approved for the claim, if applicable; |
|
(13) the date the claim is disapproved, if applicable; |
|
(14) the class to which the claim belongs; |
|
(15) the date the claim is established by a judgment of |
|
a court, if applicable; and |
|
(16) the amount of the judgment established under |
|
Subdivision (15), if applicable. (Tex. Prob. Code, Sec. 14.) |
|
Sec. 52.003. PROBATE FEE BOOK. (a) The county clerk shall |
|
maintain a record book titled "Probate Fee Book" and shall record in |
|
the book each item of cost that accrues to the officers of the court |
|
and any witness fees. |
|
(b) Each record entry must include: |
|
(1) the party to whom the cost or fee is due; |
|
(2) the date the cost or fee accrued; |
|
(3) the estate or party liable for the cost or fee; and |
|
(4) the date the cost or fee is paid. (Tex. Prob. Code, |
|
Sec. 16.) |
|
Sec. 52.004. ALTERNATE RECORDKEEPING. Instead of |
|
maintaining the record books described by Sections 52.001, 52.002, |
|
and 52.003, the county clerk may maintain the information described |
|
by those sections relating to a person's or estate's probate |
|
proceedings: |
|
(1) on a computer file; |
|
(2) on microfilm; |
|
(3) in the form of a digitized optical image; or |
|
(4) in another similar form of data compilation. |
|
(Tex. Prob. Code, Sec. 17.) |
|
[Sections 52.005-52.050 reserved for expansion] |
|
SUBCHAPTER B. FILES; INDEX |
|
Sec. 52.051. FILING PROCEDURES. (a) An application for a |
|
probate proceeding, complaint, petition, or other paper permitted |
|
or required by law to be filed with a court in a probate matter must |
|
be filed with the county clerk of the appropriate county. |
|
(b) Each paper filed in an estate must be given the docket |
|
number assigned to the estate. |
|
(c) On receipt of a paper described by Subsection (a), the |
|
county clerk shall: |
|
(1) file the paper; and |
|
(2) endorse on the paper: |
|
(A) the date the paper is filed; |
|
(B) the docket number; and |
|
(C) the clerk's official signature. (Tex. Prob. |
|
Code, Secs. 11, 13(e) (part).) |
|
Sec. 52.052. CASE FILES. (a) The county clerk shall |
|
maintain a case file for the estate of each decedent for which a |
|
probate proceeding has been filed. |
|
(b) Each case file must contain each order, judgment, and |
|
proceeding of the court and any other probate filing with the court, |
|
including each: |
|
(1) application for the probate of a will; |
|
(2) application for the granting of administration; |
|
(3) citation and notice, whether published or posted, |
|
including the return on the citation or notice; |
|
(4) will and the testimony on which the will is |
|
admitted to probate; |
|
(5) bond and official oath; |
|
(6) inventory, appraisement, and list of claims; |
|
(7) exhibit and account; |
|
(8) report of renting; |
|
(9) application for sale or partition of real estate; |
|
(10) report of sale; |
|
(11) report of the commissioners of partition; |
|
(12) application for authority to execute a lease for |
|
mineral development, or for pooling or unitization of lands, |
|
royalty, or other interest in minerals, or to lend or invest money; |
|
and |
|
(13) report of lending or investing money. |
|
(c) Only the substance of a deposition must be recorded |
|
under Subsection (b)(4). (Tex. Prob. Code, Sec. 15.) |
|
Sec. 52.053. INDEX. (a) The county clerk shall properly |
|
index the records required under this chapter. |
|
(b) The county clerk shall keep the index open for public |
|
inspection, but may not release the index from the clerk's custody. |
|
(Tex. Prob. Code, Sec. 17A.) |
|
CHAPTER 53. OTHER COURT DUTIES AND PROCEDURES |
|
|
SUBCHAPTER A. ENFORCEMENT OF ORDERS |
|
|
Sec. 53.001. ENFORCEMENT OF JUDGE'S ORDERS |
|
[Sections 53.002-53.050 reserved for expansion] |
|
SUBCHAPTER B. COSTS AND SECURITY |
|
|
Sec. 53.051. APPLICABILITY OF CERTAIN LAWS |
|
Sec. 53.052. SECURITY FOR CERTAIN COSTS |
|
Sec. |
53.053. EXEMPTION FROM PROBATE FEES FOR ESTATES |
|
OF CERTAIN MILITARY SERVICEMEMBERS |
|
[Sections 53.054-53.100 reserved for expansion] |
|
SUBCHAPTER C. PROCEDURES FOR PROBATE MATTERS |
|
|
Sec. 53.101. CALLING OF DOCKETS |
|
Sec. 53.102. SETTING OF CERTAIN HEARINGS BY CLERK |
|
Sec. |
53.103. RENDERING OF DECISIONS, ORDERS, DECREES, |
|
AND JUDGMENTS |
|
Sec. 53.104. APPOINTMENT OF ATTORNEYS AD LITEM |
|
Sec. 53.105. SIGNING OF MINUTES |
|
Sec. 53.106. EXECUTIONS IN PROBATE MATTERS |
|
CHAPTER 53. OTHER COURT DUTIES AND PROCEDURES |
|
SUBCHAPTER A. ENFORCEMENT OF ORDERS |
|
Sec. 53.001. ENFORCEMENT OF JUDGE'S ORDERS. A judge may |
|
enforce the judge's lawful orders against an executor or |
|
administrator by attachment and confinement. Unless this title |
|
expressly provides otherwise, the term of confinement for any one |
|
offense under this section may not exceed three days. (Tex. Prob. |
|
Code, Sec. 24.) |
|
[Sections 53.002-53.050 reserved for expansion] |
|
SUBCHAPTER B. COSTS AND SECURITY |
|
Sec. 53.051. APPLICABILITY OF CERTAIN LAWS. A law |
|
regulating costs in ordinary civil cases applies to a probate |
|
matter when not expressly provided for in this title. (Tex. Prob. |
|
Code, Sec. 12(a).) |
|
Sec. 53.052. SECURITY FOR CERTAIN COSTS. (a) The clerk may |
|
require a person who files an application, complaint, or opposition |
|
relating to an estate, other than the personal representative of |
|
the estate, to provide security for the probable costs of the |
|
proceeding before filing the application, complaint, or |
|
opposition. |
|
(b) At any time before the trial of an application, |
|
complaint, or opposition described by Subsection (a), anyone |
|
interested in the estate or an officer of the court may, by written |
|
motion, obtain from the court an order requiring the person who |
|
filed the application, complaint, or opposition to provide security |
|
for the probable costs of the proceeding. The rules governing civil |
|
suits in the county court with respect to giving security for the |
|
probable costs of a proceeding control in cases described by |
|
Subsection (a) and this subsection. |
|
(c) An executor or administrator appointed by a court of |
|
this state may not be required to provide security for costs in an |
|
action brought by the executor or administrator in the executor's |
|
or administrator's fiduciary capacity. (Tex. Prob. Code, Secs. |
|
12(b), (c).) |
|
Sec. 53.053. EXEMPTION FROM PROBATE FEES FOR ESTATES OF |
|
CERTAIN MILITARY SERVICEMEMBERS. (a) In this section, "combat |
|
zone" means an area that the president of the United States by |
|
executive order designates for purposes of 26 U.S.C. Section 112 as |
|
an area in which armed forces of the United States are or have |
|
engaged in combat. |
|
(b) Notwithstanding any other law, the clerk of a county |
|
court may not charge, or collect from, the estate of a decedent any |
|
of the following fees if the decedent died while in active service |
|
as a member of the armed forces of the United States in a combat |
|
zone: |
|
(1) a fee for or associated with the filing of the |
|
decedent's will for probate; and |
|
(2) a fee for any service rendered by the probate court |
|
regarding the administration of the decedent's estate. (Tex. Prob. |
|
Code, Sec. 11A.) |
|
[Sections 53.054-53.100 reserved for expansion] |
|
SUBCHAPTER C. PROCEDURES FOR PROBATE MATTERS |
|
Sec. 53.101. CALLING OF DOCKETS. The judge in whose court |
|
probate proceedings are pending, at times determined by the judge, |
|
shall: |
|
(1) call the estates of decedents in the estates' |
|
regular order on both the probate and claim dockets; and |
|
(2) issue orders as necessary. (Tex. Prob. Code, Sec. |
|
19.) |
|
Sec. 53.102. SETTING OF CERTAIN HEARINGS BY CLERK. (a) If |
|
a judge is unable to designate the time and place for hearing a |
|
probate matter pending in the judge's court because the judge is |
|
absent from the county seat or is on vacation, disqualified, ill, or |
|
deceased, the county clerk of the county in which the matter is |
|
pending may: |
|
(1) designate the time and place for hearing; |
|
(2) enter the setting on the judge's docket; and |
|
(3) certify on the docket the reason that the judge is |
|
not acting to set the hearing. |
|
(b) If, after the perfection of the service of notices and |
|
citations required by law concerning the time and place of hearing, |
|
a qualified judge is not present for a hearing set under Subsection |
|
(a), the hearing is automatically continued from day to day until a |
|
qualified judge is present to hear and determine the matter. (Tex. |
|
Prob. Code, Sec. 20.) |
|
Sec. 53.103. RENDERING OF DECISIONS, ORDERS, DECREES, AND |
|
JUDGMENTS. The county court shall render all decisions, orders, |
|
decrees, and judgments in probate matters in open court, except as |
|
otherwise specially provided. (Tex. Prob. Code, Sec. 23 (part).) |
|
Sec. 53.104. APPOINTMENT OF ATTORNEYS AD LITEM. (a) Except |
|
as provided by Section 202.009(b), the judge of a probate court may |
|
appoint an attorney ad litem in any probate proceeding to represent |
|
the interests of: |
|
(1) a person who has a legal disability; |
|
(2) a nonresident; |
|
(3) an unborn or unascertained person; or |
|
(4) an unknown heir. |
|
(b) An attorney ad litem appointed under this section is |
|
entitled to reasonable compensation for services provided in the |
|
amount set by the court, to be taxed as costs in the proceeding. |
|
(Tex. Prob. Code, Sec. 34A.) |
|
Sec. 53.105. SIGNING OF MINUTES. (a) Except as provided by |
|
Subsection (b), the judge shall approve and sign the minutes on the |
|
first day of each month. |
|
(b) If the first day of the month falls on a Sunday, the |
|
judge's approval must be entered on the preceding or succeeding |
|
day. (Tex. Prob. Code, Sec. 23 (part).) |
|
Sec. 53.106. EXECUTIONS IN PROBATE MATTERS. (a) An |
|
execution in a probate matter must be: |
|
(1) directed "to any sheriff or any constable within |
|
the State of Texas"; |
|
(2) attested and signed by the clerk officially under |
|
court seal; and |
|
(3) made returnable in 60 days. |
|
(b) A proceeding under an execution described by Subsection |
|
(a) is governed, to the extent applicable, by the laws regulating a |
|
proceeding under an execution issued by a district court. |
|
(c) Notwithstanding Subsection (a), an execution directed |
|
to the sheriff or a constable of a specific county in this state may |
|
not be held defective if properly executed within that county by the |
|
sheriff or constable to whom the execution is directed. (Tex. Prob. |
|
Code, Sec. 25.) |
|
CHAPTER 54. |
PLEADINGS AND EVIDENCE IN GENERAL |
|
SUBCHAPTER A. |
PLEADINGS |
|
Sec. 54.001. EFFECT OF FILING OR CONTESTING PLEADING |
|
Sec. 54.002. DEFECT IN PLEADING |
|
[Sections 54.003-54.050 reserved for expansion] |
|
SUBCHAPTER B. |
EVIDENCE |
|
Sec. |
54.051. APPLICABILITY OF CERTAIN RULES RELATING |
|
TO WITNESSES AND EVIDENCE |
|
Sec. 54.052. USE OF CERTAIN RECORDS AS EVIDENCE |
|
CHAPTER 54. PLEADINGS AND EVIDENCE IN GENERAL |
|
SUBCHAPTER A. PLEADINGS |
|
Sec. 54.001. EFFECT OF FILING OR CONTESTING PLEADING. (a) |
|
The filing or contesting in probate court of a pleading relating to |
|
a decedent's estate does not constitute tortious interference with |
|
inheritance of the estate. |
|
(b) This section does not abrogate any right of a person |
|
under Rule 13, Texas Rules of Civil Procedure, or Chapter 10, Civil |
|
Practice and Remedies Code. (Tex. Prob. Code, Sec. 10C.) |
|
Sec. 54.002. DEFECT IN PLEADING. A court may not invalidate |
|
a pleading in probate, or an order based on the pleading, on the |
|
basis of a defect of form or substance in the pleading unless a |
|
timely objection has been made against the defect and the defect has |
|
been called to the attention of the court in which the proceeding |
|
was or is pending. (Tex. Prob. Code, Sec. 9.) |
|
[Sections 54.003-54.050 reserved for expansion] |
|
SUBCHAPTER B. EVIDENCE |
|
Sec. 54.051. APPLICABILITY OF CERTAIN RULES RELATING TO |
|
WITNESSES AND EVIDENCE. Except as provided by Section 51.203, the |
|
rules relating to witnesses and evidence that apply in the district |
|
court apply in a proceeding arising under this title to the extent |
|
practicable. (Tex. Prob. Code, Sec. 22 (part).) |
|
Sec. 54.052. USE OF CERTAIN RECORDS AS EVIDENCE. The |
|
following are admissible as evidence in any court of this state: |
|
(1) record books described by Sections 52.001, 52.002, |
|
and 52.003 and individual case files described by Section 52.052, |
|
including records maintained in a manner allowed under Section |
|
52.004; and |
|
(2) certified copies or reproductions of the records. |
|
(Tex. Prob. Code, Sec. 18.) |
|
CHAPTER 55. |
COMPLAINTS AND CONTESTS |
|
SUBCHAPTER A. CONTEST OF PROCEEDINGS IN PROBATE COURT |
|
|
Sec. 55.001. OPPOSITION IN PROBATE PROCEEDING |
|
Sec. 55.002. TRIAL BY JURY |
|
[Sections 55.003-55.050 reserved for expansion] |
|
SUBCHAPTER B. |
INSTITUTION OF HIGHER EDUCATION OR CHARITABLE ORGANIZATION AS PARTY TO CERTAIN ACTIONS |
|
ORGANIZATION AS PARTY TO CERTAIN ACTIONS |
|
|
Sec. 55.051. DEFINITION |
|
Sec. 55.052. NECESSARY PARTY |
|
Sec. 55.053. SERVICE OF PROCESS |
|
[Sections 55.054-55.100 reserved for expansion] |
|
SUBCHAPTER C. MENTAL CAPACITY OF DECEDENT |
|
|
Sec. |
55.101. ENTITLEMENT TO PRODUCTION OF |
|
COMMUNICATIONS AND RECORDS |
|
Sec. 55.102. RELEASE OF RECORDS |
|
[Sections 55.103-55.150 reserved for expansion] |
|
SUBCHAPTER D. ATTACHMENT OF ESTATE PROPERTY |
|
|
Sec. 55.151. ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT |
|
Sec. 55.152. BOND |
|
[Sections 55.153-55.200 reserved for expansion] |
|
SUBCHAPTER E. SPECIFIC PERFORMANCE OF AGREEMENT TO TRANSFER TITLE |
|
|
Sec. 55.201. COMPLAINT AND CITATION |
|
Sec. 55.202. HEARING AND ORDER |
|
Sec. 55.203. CONVEYANCE |
|
[Sections 55.204-55.250 reserved for expansion] |
|
SUBCHAPTER F. |
BILL OF REVIEW |
|
Sec. |
55.251. REVISION AND CORRECTION OF ORDER IN |
|
PROBATE PROCEEDING |
|
Sec. 55.252. INJUNCTION |
|
CHAPTER 55. COMPLAINTS AND CONTESTS |
|
SUBCHAPTER A. CONTEST OF PROCEEDINGS IN PROBATE COURT |
|
Sec. 55.001. OPPOSITION IN PROBATE PROCEEDING. A person |
|
interested in an estate may, at any time before the court decides an |
|
issue in a proceeding, file written opposition regarding the issue. |
|
The person is entitled to process for witnesses and evidence, and to |
|
be heard on the opposition, as in other suits. (Tex. Prob. Code, |
|
Sec. 10.) |
|
Sec. 55.002. TRIAL BY JURY. In a contested probate or |
|
mental illness proceeding in a probate court, a party is entitled to |
|
a jury trial as in other civil actions. (Tex. Prob. Code, Sec. 21.) |
|
[Sections 55.003-55.050 reserved for expansion] |
|
SUBCHAPTER B. INSTITUTION OF HIGHER EDUCATION OR CHARITABLE |
|
ORGANIZATION AS PARTY TO CERTAIN ACTIONS |
|
Sec. 55.051. DEFINITION. In this subchapter, "institution |
|
of higher education" has the meaning assigned by Section 61.003, |
|
Education Code. (Tex. Prob. Code, Sec. 10A(a) (part).) |
|
Sec. 55.052. NECESSARY PARTY. An institution of higher |
|
education, a private institution of higher education, or a |
|
charitable organization that is a distributee under a will is a |
|
necessary party to a will contest or will construction suit |
|
involving the will. (Tex. Prob. Code, Sec. 10A(a) (part).) |
|
Sec. 55.053. SERVICE OF PROCESS. The court shall serve an |
|
institution or organization that is a necessary party under Section |
|
55.052 in the manner provided by this title for service on other |
|
parties. (Tex. Prob. Code, Sec. 10A(b).) |
|
[Sections 55.054-55.100 reserved for expansion] |
|
SUBCHAPTER C. MENTAL CAPACITY OF DECEDENT |
|
Sec. 55.101. ENTITLEMENT TO PRODUCTION OF COMMUNICATIONS |
|
AND RECORDS. Notwithstanding Subtitle B, Title 3, Occupations |
|
Code, a person who is a party to a will contest or proceeding in |
|
which a party relies on the mental or testamentary capacity of a |
|
decedent before the decedent's death as part of the party's claim or |
|
defense is entitled to production of all communications or records |
|
relevant to the decedent's condition before the decedent's death. |
|
(Tex. Prob. Code, Sec. 10B (part).) |
|
Sec. 55.102. RELEASE OF RECORDS. On receipt of a subpoena |
|
for communications or records described by Section 55.101 and a |
|
file-stamped copy of the will contest or proceeding described by |
|
that section, the appropriate physician, hospital, medical |
|
facility, custodian of records, or other person in possession of |
|
the communications or records shall release the communications or |
|
records to the requesting party without further authorization. |
|
(Tex. Prob. Code, Sec. 10B (part).) |
|
[Sections 55.103-55.150 reserved for expansion] |
|
SUBCHAPTER D. ATTACHMENT OF ESTATE PROPERTY |
|
Sec. 55.151. ORDER FOR ISSUANCE OF WRIT OF ATTACHMENT. (a) |
|
If a person interested in an estate files with the judge a written |
|
complaint made under oath alleging that the executor or |
|
administrator of the estate is about to remove the estate or part of |
|
the estate outside of the state, the judge may order a writ of |
|
attachment to issue, directed "to any sheriff or any constable |
|
within the State of Texas." The writ must order the sheriff or |
|
constable to: |
|
(1) seize the estate or a part of the estate; and |
|
(2) hold that property subject to the judge's |
|
additional orders regarding the complaint. |
|
(b) Notwithstanding Subsection (a), a writ of attachment |
|
directed to the sheriff or constable of a specific county within the |
|
state is not defective if the writ was properly executed in that |
|
county by that officer. (Tex. Prob. Code, Sec. 26 (part).) |
|
Sec. 55.152. BOND. Before a writ of attachment ordered |
|
under Section 55.151 may be issued, the complainant must execute a |
|
bond that is: |
|
(1) payable to the executor or administrator of the |
|
estate; |
|
(2) in an amount set by the judge; and |
|
(3) conditioned for the payment of all damages and |
|
costs that are recovered for the wrongful suing out of the writ. |
|
(Tex. Prob. Code, Sec. 26 (part).) |
|
[Sections 55.153-55.200 reserved for expansion] |
|
SUBCHAPTER E. SPECIFIC PERFORMANCE OF AGREEMENT TO TRANSFER TITLE |
|
Sec. 55.201. COMPLAINT AND CITATION. (a) If a person sold |
|
property and entered into a bond or other written agreement to |
|
transfer title to the property and then died without transferring |
|
the title, the owner of the bond or agreement or the owner's legal |
|
representative may: |
|
(1) file a written complaint in the court of the county |
|
in which letters testamentary or of administration on the |
|
decedent's estate were granted; and |
|
(2) have the personal representative of the estate |
|
cited to appear on a date stated in the citation and show cause why |
|
specific performance of the bond or agreement should not be |
|
ordered. |
|
(b) Except as provided by Subsection (c), the bond or |
|
agreement must be filed with the complaint described by Subsection |
|
(a). |
|
(c) If good cause under oath is shown why the bond or written |
|
agreement cannot be filed with the complaint, the bond or agreement |
|
or the substance of the bond or agreement must be stated in the |
|
complaint. (Tex. Prob. Code, Sec. 27 (part).) |
|
Sec. 55.202. HEARING AND ORDER. (a) After service of the |
|
citation under Section 55.201, the court shall hear the complaint |
|
and the evidence on the complaint. |
|
(b) The court shall order the personal representative to |
|
transfer title to the property, according to the tenor of the bond |
|
or agreement, to the complainant if the judge is satisfied from the |
|
proof that: |
|
(1) the bond or agreement was legally executed by the |
|
decedent; and |
|
(2) the complainant has a right to demand specific |
|
performance. |
|
(c) The order must fully describe the property to be |
|
transferred. (Tex. Prob. Code, Sec. 27 (part).) |
|
Sec. 55.203. CONVEYANCE. (a) A conveyance made under this |
|
subchapter must refer to and identify the court order authorizing |
|
the conveyance. On delivery of the conveyance, all the right and |
|
title to the property conveyed that the decedent had vests in the |
|
person to whom the conveyance is made. |
|
(b) A conveyance under this subchapter is prima facie |
|
evidence that all requirements of the law for obtaining the |
|
conveyance have been complied with. (Tex. Prob. Code, Sec. 27 |
|
(part).) |
|
[Sections 55.204-55.250 reserved for expansion] |
|
SUBCHAPTER F. BILL OF REVIEW |
|
Sec. 55.251. REVISION AND CORRECTION OF ORDER IN PROBATE |
|
PROCEEDING. (a) An interested person may, by a bill of review |
|
filed in the court in which the probate proceedings were held, have |
|
an order rendered by the court revised and corrected on a showing of |
|
error in the order. |
|
(b) A bill of review to revise and correct an order may not |
|
be filed more than two years after the date of the order. (Tex. |
|
Prob. Code, Sec. 31 (part).) |
|
Sec. 55.252. INJUNCTION. A process or action under a court |
|
order subject to a bill of review filed under Section 55.251 may be |
|
stayed only by writ of injunction. (Tex. Prob. Code, Sec. 31 |
|
(part).) |
|
CHAPTER 56. |
CHANGE AND RESIGNATION OF RESIDENT AGENT OF PERSONAL REPRESENTATIVE FOR SERVICE OF PROCESS |
|
REPRESENTATIVE FOR SERVICE OF PROCESS |
|
|
Sec. 56.001. CHANGE OF RESIDENT AGENT |
|
Sec. 56.002. RESIGNATION OF RESIDENT AGENT |
|
CHAPTER 56. CHANGE AND RESIGNATION OF RESIDENT AGENT OF PERSONAL |
|
REPRESENTATIVE FOR SERVICE OF PROCESS |
|
Sec. 56.001. CHANGE OF RESIDENT AGENT. (a) A personal |
|
representative of an estate may change the representative's |
|
resident agent to accept service of process in a probate proceeding |
|
or other action relating to the estate by filing with the court in |
|
which the probate proceeding is pending a statement titled |
|
"Designation of Successor Resident Agent" that states the names and |
|
addresses of: |
|
(1) the representative; |
|
(2) the resident agent; and |
|
(3) the successor resident agent. |
|
(b) The designation of a successor resident agent takes |
|
effect on the date a statement under Subsection (a) is filed with |
|
the court. (Tex. Prob. Code, Sec. 221A.) |
|
Sec. 56.002. RESIGNATION OF RESIDENT AGENT. (a) A resident |
|
agent of a personal representative may resign as resident agent by |
|
giving notice to the representative and filing with the court in |
|
which the probate proceeding is pending a statement titled |
|
"Resignation of Resident Agent" that states: |
|
(1) the name of the representative; |
|
(2) the representative's address most recently known |
|
by the resident agent; |
|
(3) that notice of the resignation has been given to |
|
the representative and the date that notice was given; and |
|
(4) that the representative has not designated a |
|
successor resident agent. |
|
(b) The resident agent shall send, by certified mail, return |
|
receipt requested, a copy of a resignation statement filed under |
|
Subsection (a) to: |
|
(1) the personal representative at the address most |
|
recently known by the resident agent; and |
|
(2) each party in the case or the party's attorney or |
|
other designated representative of record. |
|
(c) The resignation of a resident agent takes effect on the |
|
date the court enters an order accepting the resignation. A court |
|
may not enter an order accepting the resignation unless the |
|
resident agent complies with this section. (Tex. Prob. Code, Sec. |
|
221B.) |
|
[Chapters 57-100 reserved for expansion] |
|
SUBTITLE C. PASSAGE OF TITLE AND DISTRIBUTION OF DECEDENTS' |
|
PROPERTY IN GENERAL |
|
CHAPTER 101. |
ESTATE ASSETS IN GENERAL |
|
SUBCHAPTER A. |
PASSAGE AND POSSESSION OF DECEDENT'S ESTATE ON DEATH |
|
Sec. 101.001. PASSAGE OF ESTATE ON DECEDENT'S DEATH |
|
Sec. 101.002. EFFECT OF JOINT OWNERSHIP OF PROPERTY |
|
Sec. |
101.003. POSSESSION OF ESTATE BY PERSONAL |
|
REPRESENTATIVE |
|
[Sections 101.004-101.050 reserved for expansion] |
|
SUBCHAPTER B. |
LIABILITY OF ESTATE FOR DEBTS |
|
Sec. 101.051. LIABILITY OF ESTATE FOR DEBTS IN GENERAL |
|
Sec. |
101.052. LIABILITY OF COMMUNITY PROPERTY FOR |
|
DEBTS OF DECEASED SPOUSE |
|
CHAPTER 101. ESTATE ASSETS IN GENERAL |
|
SUBCHAPTER A. PASSAGE AND POSSESSION OF DECEDENT'S ESTATE ON DEATH |
|
Sec. 101.001. PASSAGE OF ESTATE ON DECEDENT'S DEATH. (a) |
|
Subject to Section 101.051, if a person dies leaving a lawful will: |
|
(1) all of the person's estate that is devised by the |
|
will vests immediately in the devisees; |
|
(2) all powers of appointment granted in the will vest |
|
immediately in the donees of those powers; and |
|
(3) all of the person's estate that is not devised by |
|
the will vests immediately in the person's heirs at law. |
|
(b) Subject to Section 101.051, the estate of a person who |
|
dies intestate vests immediately in the person's heirs at law. |
|
(Tex. Prob. Code, Sec. 37 (part).) |
|
Sec. 101.002. EFFECT OF JOINT OWNERSHIP OF PROPERTY. If two |
|
or more persons hold an interest in property jointly and one joint |
|
owner dies before severance, the interest of the decedent in the |
|
joint estate: |
|
(1) does not survive to the remaining joint owner or |
|
owners; and |
|
(2) passes by will or intestacy from the decedent as if |
|
the decedent's interest had been severed. (Tex. Prob. Code, Sec. |
|
46(a) (part).) |
|
Sec. 101.003. POSSESSION OF ESTATE BY PERSONAL |
|
REPRESENTATIVE. On the issuance of letters testamentary or of |
|
administration on an estate described by Section 101.001, the |
|
executor or administrator has the right to possession of the estate |
|
as the estate existed at the death of the testator or intestate, |
|
subject to the exceptions provided by Section 101.051. The |
|
executor or administrator shall recover possession of the estate |
|
and hold the estate in trust to be disposed of in accordance with |
|
the law. (Tex. Prob. Code, Sec. 37 (part).) |
|
[Sections 101.004-101.050 reserved for expansion] |
|
SUBCHAPTER B. LIABILITY OF ESTATE FOR DEBTS |
|
Sec. 101.051. LIABILITY OF ESTATE FOR DEBTS IN GENERAL. (a) |
|
A decedent's estate vests in accordance with Section 101.001(a) |
|
subject to the payment of: |
|
(1) the debts of the decedent, except as exempted by |
|
law; and |
|
(2) any court-ordered child support payments that are |
|
delinquent on the date of the decedent's death. |
|
(b) A decedent's estate vests in accordance with Section |
|
101.001(b) subject to the payment of, and is still liable for: |
|
(1) the debts of the decedent, except as exempted by |
|
law; and |
|
(2) any court-ordered child support payments that are |
|
delinquent on the date of the decedent's death. (Tex. Prob. Code, |
|
Sec. 37 (part).) |
|
Sec. 101.052. LIABILITY OF COMMUNITY PROPERTY FOR DEBTS OF |
|
DECEASED SPOUSE. (a) The community property subject to the sole or |
|
joint management, control, and disposition of a spouse during |
|
marriage continues to be subject to the liabilities of that spouse |
|
on death. |
|
(b) The interest that the deceased spouse owned in any other |
|
nonexempt community property passes to the deceased spouse's heirs |
|
or devisees charged with the debts that were enforceable against |
|
the deceased spouse before death. |
|
(c) This section does not prohibit the administration of |
|
community property under other provisions of this title relating to |
|
the administration of an estate. (Tex. Prob. Code, Secs. 155 |
|
(part), 156 (part).) |
|
CHAPTER 102. PROBATE ASSETS: DECEDENT'S HOMESTEAD |
|
|
Sec. 102.001. TREATMENT OF CERTAIN CHILDREN |
|
Sec. |
102.002. HOMESTEAD RIGHTS NOT AFFECTED BY |
|
CHARACTER OF THE HOMESTEAD |
|
Sec. 102.003. PASSAGE OF HOMESTEAD |
|
Sec. 102.004. LIABILITY OF HOMESTEAD FOR DEBTS |
|
Sec. 102.005. PROHIBITIONS ON PARTITION OF HOMESTEAD |
|
Sec. |
102.006. CIRCUMSTANCES UNDER WHICH PARTITION OF |
|
HOMESTEAD IS AUTHORIZED |
|
CHAPTER 102. PROBATE ASSETS: DECEDENT'S HOMESTEAD |
|
Sec. 102.001. TREATMENT OF CERTAIN CHILDREN. For purposes |
|
of determining homestead rights, a child is a child of his or her |
|
mother and a child of his or her father, as provided by Sections |
|
201.051, 201.052, and 201.053. (Tex. Prob. Code, Sec. 42(c) |
|
(part).) |
|
Sec. 102.002. HOMESTEAD RIGHTS NOT AFFECTED BY CHARACTER OF |
|
THE HOMESTEAD. The homestead rights and the respective interests |
|
of the surviving spouse and children of a decedent are the same |
|
whether the homestead was the decedent's separate property or was |
|
community property between the surviving spouse and the decedent. |
|
(Tex. Prob. Code, Sec. 282.) |
|
Sec. 102.003. PASSAGE OF HOMESTEAD. The homestead of a |
|
decedent who dies leaving a surviving spouse descends and vests on |
|
the decedent's death in the same manner as other real property of |
|
the decedent and is governed by the same laws of descent and |
|
distribution. (Tex. Prob. Code, Sec. 283.) |
|
Sec. 102.004. LIABILITY OF HOMESTEAD FOR DEBTS. The |
|
homestead is not liable for the payment of any of the debts of the |
|
estate, other than: |
|
(1) purchase money for the homestead; |
|
(2) taxes due on the homestead; |
|
(3) work and material used in constructing |
|
improvements on the homestead if the requirements of Section |
|
50(a)(5), Article XVI, Texas Constitution, are met; |
|
(4) an owelty of partition imposed against the |
|
entirety of the property by a court order or written agreement of |
|
the parties to the partition, including a debt of one spouse in |
|
favor of the other spouse resulting from a division or an award of a |
|
family homestead in a divorce proceeding; |
|
(5) the refinance of a lien against the homestead, |
|
including a federal tax lien resulting from the tax debt of both |
|
spouses, if the homestead is a family homestead, or from the tax |
|
debt of the decedent; |
|
(6) an extension of credit on the homestead if the |
|
requirements of Section 50(a)(6), Article XVI, Texas Constitution, |
|
are met; or |
|
(7) a reverse mortgage. (Tex. Prob. Code, Sec. 270.) |
|
Sec. 102.005. PROHIBITIONS ON PARTITION OF HOMESTEAD. The |
|
homestead may not be partitioned among the decedent's heirs: |
|
(1) during the lifetime of the surviving spouse for as |
|
long as the surviving spouse elects to use or occupy the property as |
|
a homestead; or |
|
(2) during the period the guardian of the decedent's |
|
minor children is permitted to use and occupy the homestead under a |
|
court order. (Tex. Prob. Code, Sec. 284.) |
|
Sec. 102.006. CIRCUMSTANCES UNDER WHICH PARTITION OF |
|
HOMESTEAD IS AUTHORIZED. The homestead may be partitioned among |
|
the respective owners of the property in the same manner as other |
|
property held in common if: |
|
(1) the surviving spouse dies, sells his or her |
|
interest in the homestead, or elects to no longer use or occupy the |
|
property as a homestead; or |
|
(2) the court no longer permits the guardian of the |
|
minor children to use and occupy the property as a homestead. (Tex. |
|
Prob. Code, Sec. 285.) |
|
[Chapters 103-110 reserved for expansion] |
|
CHAPTER 111. NONPROBATE ASSETS IN GENERAL |
|
|
SUBCHAPTER A. RIGHT OF SURVIVORSHIP AGREEMENTS |
|
|
BETWEEN JOINT TENANTS |
|
|
Sec. |
111.001. RIGHT OF SURVIVORSHIP AGREEMENTS |
|
AUTHORIZED |
|
Sec. 111.002. AGREEMENTS CONCERNING COMMUNITY PROPERTY |
|
[Sections 111.003-111.050 reserved for expansion] |
|
SUBCHAPTER B. OTHER PROVISIONS FOR PAYMENT OR TRANSFER |
|
|
OF CERTAIN ASSETS ON DEATH |
|
|
Sec. 111.051. DEFINITIONS |
|
Sec. |
111.052. VALIDITY OF CERTAIN NONTESTAMENTARY |
|
INSTRUMENTS AND PROVISIONS |
|
Sec. 111.053. CREDITOR'S RIGHTS NOT LIMITED |
|
CHAPTER 111. NONPROBATE ASSETS IN GENERAL |
|
SUBCHAPTER A. RIGHT OF SURVIVORSHIP AGREEMENTS |
|
BETWEEN JOINT TENANTS |
|
Sec. 111.001. RIGHT OF SURVIVORSHIP AGREEMENTS AUTHORIZED. |
|
(a) Notwithstanding Section 101.002, two or more persons who hold |
|
an interest in property jointly may agree in writing that the |
|
interest of a joint owner who dies survives to the surviving joint |
|
owner or owners. |
|
(b) An agreement described by Subsection (a) may not be |
|
inferred from the mere fact that property is held in joint |
|
ownership. (Tex. Prob. Code, Sec. 46(a) (part).) |
|
Sec. 111.002. AGREEMENTS CONCERNING COMMUNITY PROPERTY. |
|
(a) Section 111.001 does not apply to an agreement between spouses |
|
regarding the spouses' community property. |
|
(b) An agreement between spouses regarding a right of |
|
survivorship in community property is governed by Chapter 112. |
|
(Tex. Prob. Code, Sec. 46(b).) |
|
[Sections 111.003-111.050 reserved for expansion] |
|
SUBCHAPTER B. OTHER PROVISIONS FOR PAYMENT OR TRANSFER |
|
OF CERTAIN ASSETS ON DEATH |
|
Sec. 111.051. DEFINITIONS. In this subchapter: |
|
(1) "Employees' trust" means: |
|
(A) a trust that forms a part of a stock-bonus, |
|
pension, or profit-sharing plan under Section 401, Internal Revenue |
|
Code of 1954 (26 U.S.C. Section 401 (1986)); |
|
(B) a pension trust under Chapter 111, Property |
|
Code; and |
|
(C) an employer-sponsored benefit plan or |
|
program, or any other retirement savings arrangement, including a |
|
pension plan created under Section 3, Employee Retirement Income |
|
Security Act of 1974 (29 U.S.C. Section 1002 (1986)), regardless of |
|
whether the plan, program, or arrangement is funded through a |
|
trust. |
|
(2) "Financial institution" has the meaning assigned |
|
by Section 113.001. |
|
(3) "Individual retirement account" means a trust, |
|
custodial arrangement, or annuity under Section 408(a) or (b), |
|
Internal Revenue Code of 1954 (26 U.S.C. Section 408 (1986)). |
|
(4) "Retirement account" means a retirement-annuity |
|
contract, an individual retirement account, a simplified employee |
|
pension, or any other retirement savings arrangement. |
|
(5) "Retirement-annuity contract" means an annuity |
|
contract under Section 403, Internal Revenue Code of 1954 (26 |
|
U.S.C. Section 403 (1986)). |
|
(6) "Simplified employee pension" means a trust, |
|
custodial arrangement, or annuity under Section 408, Internal |
|
Revenue Code of 1954 (26 U.S.C. Section 408 (1986)). (Tex. Prob. |
|
Code, Secs. 450(a) (part), (c).) |
|
Sec. 111.052. VALIDITY OF CERTAIN NONTESTAMENTARY |
|
INSTRUMENTS AND PROVISIONS. (a) This code does not invalidate: |
|
(1) any provision in an insurance policy, employment |
|
contract, bond, mortgage, promissory note, deposit agreement, |
|
employees' trust, retirement account, deferred compensation |
|
arrangement, custodial agreement, pension plan, trust agreement, |
|
conveyance of property, security, account with a financial |
|
institution, mutual fund account, or any other written instrument |
|
effective as a contract, gift, conveyance, or trust, stating that: |
|
(A) money or other benefits under the instrument |
|
due to or controlled or owned by a decedent shall be paid after the |
|
decedent's death, or property that is the subject of the instrument |
|
shall pass, to a person designated by the decedent in the instrument |
|
or in a separate writing, including a will, executed at the same |
|
time as the instrument or subsequently; or |
|
(B) money due or to become due under the |
|
instrument shall cease to be payable if the promisee or promissor |
|
dies before payment or demand; or |
|
(2) an instrument described by Subdivision (1). |
|
(b) A provision described by Subsection (a)(1) is |
|
considered nontestamentary. (Tex. Prob. Code, Sec. 450(a) (part).) |
|
Sec. 111.053. CREDITOR'S RIGHTS NOT LIMITED. Nothing in |
|
this subchapter limits the rights of a creditor under another law of |
|
this state. (Tex. Prob. Code, Sec. 450(b).) |
|
CHAPTER 112. COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. |
112.001. DEFINITION OF COMMUNITY PROPERTY |
|
SURVIVORSHIP AGREEMENT |
|
Sec. |
112.002. APPLICABILITY OF OTHER LAW TO COMMUNITY |
|
|
|
|
ACCOUNTS |
|
[Sections 112.003-112.050 reserved for expansion] |
|
SUBCHAPTER B. COMMUNITY PROPERTY SURVIVORSHIP AGREEMENTS |
|
|
Sec. |
112.051. AGREEMENT FOR RIGHT OF SURVIVORSHIP IN |
|
COMMUNITY PROPERTY |
|
Sec. 112.052. FORM OF AGREEMENT |
|
Sec. 112.053. ADJUDICATION NOT REQUIRED |
|
Sec. 112.054. REVOCATION OF AGREEMENT |
|
[Sections 112.055-112.100 reserved for expansion] |
|
SUBCHAPTER C. |
ADJUDICATION TO PROVE COMMUNITY PROPERTY SURVIVORSHIP AGREEMENT |
|
SURVIVORSHIP AGREEMENT |
|
|
Sec. 112.101. APPLICATION AUTHORIZED |
|
Sec. 112.102. PROOF REQUIRED BY COURT |
|
Sec. 112.103. METHOD OF PROOF OF SIGNATURES |
|
Sec. 112.104. COURT ACTION; ISSUANCE OF ORDER |
|
Sec. 112.105. EFFECT OF ORDER |
|
Sec. 112.106. CUSTODY OF ADJUDICATED AGREEMENT |
|
[Sections 112.107-112.150 reserved for expansion] |
|
SUBCHAPTER D. |
OWNERSHIP AND TRANSFER OF COMMUNITY PROPERTY SUBJECT TO AGREEMENT |
|
TO AGREEMENT |
|
|
Sec. |
112.151. OWNERSHIP OF PROPERTY DURING MARRIAGE; |
|
MANAGEMENT RIGHTS |
|
Sec. |
112.152. NONTESTAMENTARY NATURE OF TRANSFERS |
|
UNDER AGREEMENT |
|
[Sections 112.153-112.200 reserved for expansion] |
|
SUBCHAPTER E. THIRD PARTIES DEALING WITH COMMUNITY PROPERTY |
SUBJECT TO RIGHT OF SURVIVORSHIP |
|
SUBJECT TO RIGHT OF SURVIVORSHIP |
|
|
Sec. 112.201. DEFINITION OF CERTIFIED COPY |
|
Sec. 112.202. ACTUAL KNOWLEDGE OR NOTICE OF AGREEMENT |
|
Sec. |
112.203. PERSONAL REPRESENTATIVE WITHOUT ACTUAL |
|
KNOWLEDGE OF AGREEMENT |
|
Sec. |
112.204. THIRD-PARTY PURCHASER WITHOUT NOTICE OF |
|
AGREEMENT |
|
Sec. |
112.205. DEBTORS AND OTHER PERSONS WITHOUT NOTICE |
|
OF AGREEMENT |
|
Sec. |
112.206. THIRD-PARTY PURCHASER WITHOUT NOTICE OF |
|
REVOCATION OF AGREEMENT |
|
Sec. |
112.207. DEBTORS AND OTHER PERSONS WITHOUT NOTICE |
|
OF REVOCATION OF AGREEMENT |
|
Sec. |
112.208. RIGHTS OF SURVIVING SPOUSE AGAINST |
|
CREDITORS |
|
[Sections 112.209-112.250 reserved for expansion] |
|
SUBCHAPTER F. RIGHTS OF CREDITORS |
|
|
Sec. 112.251. MULTIPLE-PARTY ACCOUNTS |
|
Sec. |
112.252. LIABILITIES OF DECEASED SPOUSE NOT |
|
AFFECTED BY RIGHT OF SURVIVORSHIP |
|
Sec. |
112.253. RIGHTS OF DECEASED SPOUSE'S CREDITORS IN |
|
RELATION TO THIRD PARTIES |
|
CHAPTER 112. COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 112.001. DEFINITION OF COMMUNITY PROPERTY |
|
SURVIVORSHIP AGREEMENT. In this chapter, "community property |
|
survivorship agreement" means an agreement between spouses |
|
creating a right of survivorship in community property. (New.) |
|
Sec. 112.002. APPLICABILITY OF OTHER LAW TO COMMUNITY |
|
PROPERTY HELD IN MULTIPLE-PARTY ACCOUNTS. Chapter 113 applies to |
|
multiple-party accounts held by spouses with a right of |
|
survivorship to the extent that chapter is not inconsistent with |
|
this chapter. (Tex. Prob. Code, Sec. 462.) |
|
[Sections 112.003-112.050 reserved for expansion] |
|
SUBCHAPTER B. COMMUNITY PROPERTY SURVIVORSHIP AGREEMENTS |
|
Sec. 112.051. AGREEMENT FOR RIGHT OF SURVIVORSHIP IN |
|
COMMUNITY PROPERTY. At any time, spouses may agree between |
|
themselves that all or part of their community property, then |
|
existing or to be acquired, becomes the property of the surviving |
|
spouse on the death of a spouse. (Tex. Prob. Code, Sec. 451.) |
|
Sec. 112.052. FORM OF AGREEMENT. (a) A community property |
|
survivorship agreement must be in writing and signed by both |
|
spouses. |
|
(b) A written agreement signed by both spouses is sufficient |
|
to create a right of survivorship in the community property |
|
described in the agreement if the agreement includes any of the |
|
following phrases: |
|
(1) "with right of survivorship"; |
|
(2) "will become the property of the survivor"; |
|
(3) "will vest in and belong to the surviving spouse"; |
|
or |
|
(4) "shall pass to the surviving spouse." |
|
(c) Notwithstanding Subsection (b), a community property |
|
survivorship agreement that otherwise meets the requirements of |
|
this chapter is effective without including any of the phrases |
|
listed in that subsection. (Tex. Prob. Code, Sec. 452.) |
|
Sec. 112.053. ADJUDICATION NOT REQUIRED. A community |
|
property survivorship agreement that satisfies the requirements of |
|
this chapter is effective and enforceable without an adjudication. |
|
(Tex. Prob. Code, Secs. 456(a) (part), 458 (part).) |
|
Sec. 112.054. REVOCATION OF AGREEMENT. (a) A community |
|
property survivorship agreement made in accordance with this |
|
chapter may be revoked as provided by the terms of the agreement. |
|
(b) If a community property survivorship agreement does not |
|
provide a method of revocation, the agreement may be revoked by a |
|
written instrument: |
|
(1) signed by both spouses; or |
|
(2) signed by one spouse and delivered to the other |
|
spouse. |
|
(c) A community property survivorship agreement may be |
|
revoked with respect to specific property subject to the agreement |
|
by the disposition of the property by one or both spouses if the |
|
disposition is not inconsistent with specific terms of the |
|
agreement and applicable law. (Tex. Prob. Code, Sec. 455.) |
|
[Sections 112.055-112.100 reserved for expansion] |
|
SUBCHAPTER C. ADJUDICATION TO PROVE COMMUNITY PROPERTY |
|
SURVIVORSHIP AGREEMENT |
|
Sec. 112.101. APPLICATION AUTHORIZED. (a) Notwithstanding |
|
Section 112.053, after the death of a spouse, the surviving spouse |
|
or the surviving spouse's personal representative may apply to the |
|
court for an order stating that a community property survivorship |
|
agreement satisfies the requirements of this chapter and is |
|
effective to create a right of survivorship in community property. |
|
(b) An application under this section must include: |
|
(1) the surviving spouse's name and domicile; |
|
(2) the deceased spouse's name and former domicile; |
|
(3) the fact, time, and place of the deceased spouse's |
|
death; |
|
(4) facts establishing venue in the court; and |
|
(5) the deceased spouse's social security number, if |
|
known. |
|
(c) An application under this section must be filed in the |
|
county of proper venue for administration of the deceased spouse's |
|
estate. |
|
(d) The original community property survivorship agreement |
|
shall be filed with an application under this section. (Tex. Prob. |
|
Code, Secs. 456(a) (part), (d).) |
|
Sec. 112.102. PROOF REQUIRED BY COURT. An applicant for an |
|
order under Section 112.101 must prove to the court's satisfaction |
|
that: |
|
(1) the spouse whose community property interest is at |
|
issue is deceased; |
|
(2) the court has jurisdiction and venue; |
|
(3) the agreement was executed with the formalities |
|
required by law; |
|
(4) the agreement was not revoked; and |
|
(5) citation has been served and returned in the |
|
manner and for the length of time required by this title. (Tex. |
|
Prob. Code, Sec. 456(b).) |
|
Sec. 112.103. METHOD OF PROOF OF SIGNATURES. (a) The |
|
deceased spouse's signature to an agreement that is the subject of |
|
an application under Section 112.101 may be proved by: |
|
(1) the sworn testimony of one witness taken in open |
|
court; |
|
(2) the affidavit of one witness; or |
|
(3) the written or oral deposition of one witness |
|
taken in the same manner and under the same rules as depositions in |
|
other civil actions. |
|
(b) If the surviving spouse is competent to make an oath, |
|
the surviving spouse's signature to the agreement may be proved by: |
|
(1) the sworn testimony of the surviving spouse taken |
|
in open court; |
|
(2) the surviving spouse's affidavit; or |
|
(3) the written or oral deposition of the surviving |
|
spouse taken in the same manner and under the same rules as |
|
depositions in other civil actions. |
|
(c) If the surviving spouse is not competent to make an |
|
oath, the surviving spouse's signature to the agreement may be |
|
proved in the manner provided by Subsection (a) for proof of the |
|
deceased spouse's signature. (Tex. Prob. Code, Sec. 456(c).) |
|
Sec. 112.104. COURT ACTION; ISSUANCE OF ORDER. (a) On |
|
completion of a hearing on an application under Section 112.101, if |
|
the court is satisfied that the requisite proof has been made, the |
|
court shall enter an order adjudging the agreement valid. |
|
(b) Certified copies of the agreement and order may be: |
|
(1) recorded in other counties; and |
|
(2) used in evidence, as the original agreement might |
|
be, on the trial of the same matter in any other court, on appeal or |
|
otherwise. (Tex. Prob. Code, Sec. 457.) |
|
Sec. 112.105. EFFECT OF ORDER. (a) An order under this |
|
subchapter adjudging a community property survivorship agreement |
|
valid constitutes sufficient authority to a person who: |
|
(1) owes money, has custody of any property, or acts as |
|
registrar or transfer agent of any evidence of interest, |
|
indebtedness, property, or right that is subject to the terms of the |
|
agreement; or |
|
(2) purchases from or otherwise deals with the |
|
surviving spouse for payment or transfer to the surviving spouse. |
|
(b) The surviving spouse may enforce that spouse's right to |
|
a payment or transfer from a person described by Subsection (a)(2). |
|
(Tex. Prob. Code, Sec. 458 (part).) |
|
Sec. 112.106. CUSTODY OF ADJUDICATED AGREEMENT. (a) An |
|
original community property survivorship agreement adjudicated |
|
under this subchapter, together with the order adjudging the |
|
agreement valid, shall be deposited in the office of the county |
|
clerk of the county in which the agreement was adjudicated and must |
|
remain at that office, except during a period when the agreement is |
|
moved to another location for inspection on order of the court in |
|
which the agreement was adjudicated. |
|
(b) If the court orders an original community property |
|
survivorship agreement adjudicated under this subchapter to be |
|
moved to another location for inspection, the person moving the |
|
original agreement shall give a receipt for the agreement and the |
|
court clerk shall make and retain a copy of the original agreement. |
|
(Tex. Prob. Code, Sec. 459.) |
|
[Sections 112.107-112.150 reserved for expansion] |
|
SUBCHAPTER D. OWNERSHIP AND TRANSFER OF COMMUNITY PROPERTY SUBJECT |
|
TO AGREEMENT |
|
Sec. 112.151. OWNERSHIP OF PROPERTY DURING MARRIAGE; |
|
MANAGEMENT RIGHTS. (a) Property subject to a community property |
|
survivorship agreement remains community property during the |
|
marriage of the spouses. |
|
(b) Unless the agreement provides otherwise, a community |
|
property survivorship agreement does not affect the rights of the |
|
spouses concerning the management, control, and disposition of |
|
property subject to the agreement. (Tex. Prob. Code, Sec. 453.) |
|
Sec. 112.152. NONTESTAMENTARY NATURE OF TRANSFERS UNDER |
|
AGREEMENT. (a) Transfers at death resulting from community |
|
property survivorship agreements made in accordance with this |
|
chapter are effective by reason of the agreements involved and are |
|
not testamentary transfers. |
|
(b) Except as expressly provided otherwise by this title, |
|
transfers described by Subsection (a) are not subject to the |
|
provisions of this title applicable to testamentary transfers. |
|
(Tex. Prob. Code, Sec. 454.) |
|
[Sections 112.153-112.200 reserved for expansion] |
|
SUBCHAPTER E. THIRD PARTIES DEALING WITH COMMUNITY PROPERTY |
|
SUBJECT TO RIGHT OF SURVIVORSHIP |
|
Sec. 112.201. DEFINITION OF CERTIFIED COPY. In this |
|
subchapter, a "certified copy" means a copy of an official record or |
|
document that is: |
|
(1) authorized by law to be recorded or filed and |
|
actually recorded or filed in a public office; and |
|
(2) certified as correct in accordance with Rule 902, |
|
Texas Rules of Evidence. (Tex. Prob. Code, Sec. 460(f) (part).) |
|
Sec. 112.202. ACTUAL KNOWLEDGE OR NOTICE OF AGREEMENT. (a) |
|
In this subchapter, a person or entity has "actual knowledge" of a |
|
community property survivorship agreement or the revocation of a |
|
community property survivorship agreement only if the person or |
|
entity has received: |
|
(1) written notice of the agreement or revocation; or |
|
(2) the original or a certified copy of the agreement |
|
or revoking instrument. |
|
(b) In this subchapter, a person or entity has "notice" of a |
|
community property survivorship agreement or the revocation of a |
|
community property survivorship agreement if: |
|
(1) the person or entity has actual knowledge of the |
|
agreement or revocation; or |
|
(2) with respect to real property, the agreement or |
|
revoking instrument is properly recorded in the county in which the |
|
real property is located. (Tex. Prob. Code, Sec. 460(f) (part).) |
|
Sec. 112.203. PERSONAL REPRESENTATIVE WITHOUT ACTUAL |
|
KNOWLEDGE OF AGREEMENT. If the personal representative of a |
|
deceased spouse's estate has no actual knowledge of the existence |
|
of an agreement creating a right of survivorship in community |
|
property in the surviving spouse, the personal representative is |
|
not liable to the surviving spouse or any person claiming from the |
|
surviving spouse for selling, exchanging, distributing, or |
|
otherwise disposing of the property. (Tex. Prob. Code, Sec. |
|
460(a).) |
|
Sec. 112.204. THIRD-PARTY PURCHASER WITHOUT NOTICE OF |
|
AGREEMENT. (a) This section applies only to a person or entity who |
|
for value purchases property: |
|
(1) from a person claiming from a deceased spouse more |
|
than six months after the date of the deceased spouse's death or |
|
from the personal representative of the deceased spouse's estate; |
|
and |
|
(2) without notice of the existence of an agreement |
|
creating a right of survivorship in the property in the surviving |
|
spouse. |
|
(b) A purchaser of property from a person claiming from the |
|
deceased spouse has good title to the interest in the property that |
|
the person would have had in the absence of the agreement described |
|
by Subsection (a)(2), as against the claims of the surviving spouse |
|
or any person claiming from the surviving spouse. |
|
(c) A purchaser of property from the personal |
|
representative of the deceased spouse's estate has good title to |
|
the interest in the property that the personal representative would |
|
have had authority to convey in the absence of the agreement |
|
described by Subsection (a)(2), as against the claims of the |
|
surviving spouse or any person claiming from the surviving spouse. |
|
(Tex. Prob. Code, Sec. 460(b).) |
|
Sec. 112.205. DEBTORS AND OTHER PERSONS WITHOUT NOTICE OF |
|
AGREEMENT. (a) This section applies only to a person or entity |
|
who: |
|
(1) owes money to a deceased spouse; or |
|
(2) has custody of property or acts as registrar or |
|
transfer agent of any evidence of interest, indebtedness, property, |
|
or right owned by a deceased spouse before that spouse's death. |
|
(b) A person or entity with no actual knowledge of the |
|
existence of an agreement creating a right of survivorship in |
|
property described by Subsection (a) in the surviving spouse may |
|
pay or transfer that property to the personal representative of the |
|
deceased spouse's estate or, if no administration of the deceased |
|
spouse's estate is pending, to the heirs or devisees of the estate |
|
and shall be discharged from all claims for those amounts or |
|
property paid or transferred. (Tex. Prob. Code, Sec. 460(d).) |
|
Sec. 112.206. THIRD-PARTY PURCHASER WITHOUT NOTICE OF |
|
REVOCATION OF AGREEMENT. (a) This section applies only to a person |
|
or entity who for value purchases property from a surviving spouse |
|
more than six months after the date of the deceased spouse's death |
|
and: |
|
(1) with respect to personal property: |
|
(A) the purchaser has received an original or |
|
certified copy of an agreement purporting to create a right of |
|
survivorship in the personal property in the surviving spouse, |
|
purportedly signed by both spouses; and |
|
(B) the purchaser has no notice of the revocation |
|
of the agreement; or |
|
(2) with respect to real property: |
|
(A) the purchaser has received an original or |
|
certified copy of an agreement purporting to create a right of |
|
survivorship in the real property in the surviving spouse, |
|
purportedly signed by both spouses or such an agreement is properly |
|
recorded in a county in which any part of the real property is |
|
located; and |
|
(B) the purchaser has no notice of the revocation |
|
of the agreement. |
|
(b) A purchaser has good title to the interest in the |
|
property that the surviving spouse would have had in the absence of |
|
the revocation of the agreement, as against the claims of the |
|
personal representative of the deceased spouse's estate or any |
|
person claiming from the representative or the deceased spouse. |
|
(Tex. Prob. Code, Sec. 460(c).) |
|
Sec. 112.207. DEBTORS AND OTHER PERSONS WITHOUT NOTICE OF |
|
REVOCATION OF AGREEMENT. (a) This section applies only to a person |
|
or entity who: |
|
(1) owes money to a deceased spouse; or |
|
(2) has custody of property or acts as registrar or |
|
transfer agent of any evidence of interest, indebtedness, property, |
|
or right owned by a deceased spouse before that spouse's death. |
|
(b) If a person or entity is presented with the original or a |
|
certified copy of an agreement creating a right of survivorship in |
|
property described by Subsection (a) in the surviving spouse, |
|
purportedly signed by both spouses, and if the person or entity has |
|
no actual knowledge that the agreement was revoked, the person or |
|
entity may pay or transfer that property to the surviving spouse and |
|
shall be discharged from all claims for those amounts or property |
|
paid or transferred. (Tex. Prob. Code, Sec. 460(e).) |
|
Sec. 112.208. RIGHTS OF SURVIVING SPOUSE AGAINST CREDITORS. |
|
Except as expressly provided by this subchapter, this subchapter |
|
does not affect the rights of a surviving spouse or person claiming |
|
from the surviving spouse in disputes with persons claiming from a |
|
deceased spouse or the successors of any of them concerning a |
|
beneficial interest in property or the proceeds from a beneficial |
|
interest in property, subject to a right of survivorship under an |
|
agreement that satisfies the requirements of this chapter. (Tex. |
|
Prob. Code, Sec. 460(g).) |
|
[Sections 112.209-112.250 reserved for expansion] |
|
SUBCHAPTER F. RIGHTS OF CREDITORS |
|
Sec. 112.251. MULTIPLE-PARTY ACCOUNTS. Chapter 113 governs |
|
the rights of creditors with respect to multiple-party accounts, as |
|
defined by Section 113.004. (Tex. Prob. Code, Sec. 461 (part).) |
|
Sec. 112.252. LIABILITIES OF DECEASED SPOUSE NOT AFFECTED |
|
BY RIGHT OF SURVIVORSHIP. (a) Except as expressly provided by |
|
Section 112.251, the community property subject to the sole or |
|
joint management, control, and disposition of a spouse during |
|
marriage continues to be subject to the liabilities of that spouse |
|
on that spouse's death without regard to a right of survivorship in |
|
the surviving spouse under an agreement made in accordance with |
|
this chapter. |
|
(b) The surviving spouse is liable to account to the |
|
deceased spouse's personal representative for property received by |
|
the surviving spouse under a right of survivorship to the extent |
|
necessary to discharge the deceased spouse's liabilities. |
|
(c) A proceeding to assert a liability under Subsection (b): |
|
(1) may be commenced only if the deceased spouse's |
|
personal representative has received a written demand by a |
|
creditor; and |
|
(2) must be commenced on or before the second |
|
anniversary of the deceased spouse's death. |
|
(d) Property recovered by the deceased spouse's personal |
|
representative under this section shall be administered as part of |
|
the deceased spouse's estate. (Tex. Prob. Code, Sec. 461 (part).) |
|
Sec. 112.253. RIGHTS OF DECEASED SPOUSE'S CREDITORS IN |
|
RELATION TO THIRD PARTIES. This subchapter does not affect the |
|
protection afforded to a person or entity under Subchapter E |
|
unless, before payment or transfer to the surviving spouse, the |
|
person or entity received a written notice from the deceased |
|
spouse's personal representative stating the amount needed to |
|
discharge the deceased spouse's liabilities. (Tex. Prob. Code, Sec. |
|
461 (part).) |
|
CHAPTER 113. |
MULTIPLE-PARTY ACCOUNTS |
|
SUBCHAPTER A. |
GENERAL PROVISIONS |
|
Sec. 113.001. GENERAL DEFINITIONS |
|
Sec. 113.002. DEFINITION OF PARTY |
|
Sec. 113.003. DEFINITION OF NET CONTRIBUTION |
|
Sec. 113.004. TYPES OF ACCOUNTS |
|
Sec. |
113.005. AUTHORITY OF FINANCIAL INSTITUTIONS TO |
|
ENTER INTO CERTAIN ACCOUNTS |
|
[Sections 113.006-113.050 reserved for expansion] |
|
SUBCHAPTER B. UNIFORM ACCOUNT FORM |
|
|
Sec. |
113.051. ESTABLISHMENT OF TYPE OF ACCOUNT; |
|
APPLICABILITY OF CERTAIN LAW |
|
Sec. 113.052. FORM |
|
Sec. 113.053. USE OF FORM; DISCLOSURE |
|
[Sections 113.054-113.100 reserved for expansion] |
|
SUBCHAPTER C. |
OWNERSHIP AND OPERATION OF ACCOUNTS |
|
Sec. |
113.101. EFFECT OF CERTAIN PROVISIONS REGARDING |
|
OWNERSHIP BETWEEN PARTIES AND OTHERS |
|
Sec. |
113.102. OWNERSHIP OF JOINT ACCOUNT DURING |
|
PARTIES' LIFETIMES |
|
Sec. |
113.103. OWNERSHIP OF P.O.D. ACCOUNT DURING |
|
ORIGINAL PAYEE'S LIFETIME |
|
Sec. |
113.104. OWNERSHIP OF TRUST ACCOUNT DURING |
|
TRUSTEE'S LIFETIME |
|
Sec. |
113.105. OWNERSHIP OF CONVENIENCE ACCOUNT; |
|
ADDITIONS AND ACCRUALS |
|
[Sections 113.106-113.150 reserved for expansion] |
|
SUBCHAPTER D. |
RIGHTS OF SURVIVORSHIP IN ACCOUNTS |
|
Sec. |
113.151. ESTABLISHMENT OF RIGHT OF SURVIVORSHIP |
|
|
|
|
OF PARTY |
|
Sec. |
113.152. OWNERSHIP OF P.O.D. ACCOUNT ON DEATH OF |
|
PARTY |
|
Sec. |
113.153. OWNERSHIP OF TRUST ACCOUNT ON DEATH OF |
|
TRUSTEE |
|
Sec. |
113.154. OWNERSHIP OF CONVENIENCE ACCOUNT ON |
|
DEATH OF PARTY |
|
Sec. |
113.155. EFFECT OF DEATH OF PARTY ON CERTAIN |
|
|
|
|
SURVIVORSHIP |
|
Sec. |
113.156. APPLICABILITY OF CERTAIN PROVISIONS ON |
|
DEATH OF PARTY |
|
Sec. |
113.157. WRITTEN NOTICE TO FINANCIAL INSTITUTIONS |
|
REGARDING FORM OF ACCOUNT |
|
Sec. |
113.158. NONTESTAMENTARY NATURE OF CERTAIN |
|
TRANSFERS |
|
[Sections 113.159-113.200 reserved for expansion] |
|
SUBCHAPTER E. |
PROTECTION OF FINANCIAL INSTITUTIONS |
|
Sec. 113.201. APPLICABILITY OF SUBCHAPTER |
|
Sec. 113.202. PAYMENT OF MULTIPLE-PARTY ACCOUNT |
|
Sec. 113.203. PAYMENT OF JOINT ACCOUNT |
|
Sec. 113.204. PAYMENT OF P.O.D. ACCOUNT |
|
Sec. 113.205. PAYMENT OF TRUST ACCOUNT |
|
Sec. 113.206. PAYMENT OF CONVENIENCE ACCOUNT |
|
Sec. |
113.207. LIABILITY FOR PAYMENT FROM JOINT ACCOUNT |
|
AFTER DEATH |
|
Sec. |
113.208. LIABILITY FOR PAYMENT FROM CONVENIENCE |
|
ACCOUNT |
|
Sec. 113.209. DISCHARGE FROM CLAIMS |
|
Sec. 113.210. SET-OFF TO FINANCIAL INSTITUTION |
|
[Sections 113.211-113.250 reserved for expansion] |
|
SUBCHAPTER F. |
RIGHTS OF CREDITORS; PLEDGE OF ACCOUNT |
|
Sec. 113.251. PLEDGE OF ACCOUNT |
|
Sec. 113.252. RIGHTS OF CREDITORS |
|
Sec. |
113.253. NO EFFECT ON CERTAIN RIGHTS AND |
|
LIABILITIES OF FINANCIAL INSTITUTIONS |
|
CHAPTER 113. MULTIPLE-PARTY ACCOUNTS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 113.001. GENERAL DEFINITIONS. In this chapter: |
|
(1) "Account" means a contract of deposit of funds |
|
between a depositor and a financial institution. The term includes |
|
a checking account, savings account, certificate of deposit, share |
|
account, or other similar arrangement. |
|
(2) "Beneficiary" means a person named in a trust |
|
account for whom a party to the account is named as trustee. |
|
(3) "Financial institution" means an organization |
|
authorized to do business under state or federal laws relating to |
|
financial institutions. The term includes a bank or trust company, |
|
savings bank, building and loan association, savings and loan |
|
company or association, credit union, and brokerage firm that deals |
|
in the sale and purchase of stocks, bonds, and other types of |
|
securities. |
|
(4) "Payment" of sums on deposit includes a |
|
withdrawal, a payment on a check or other directive of a party, and |
|
a pledge of sums on deposit by a party and any set-off, or reduction |
|
or other disposition of all or part of an account under a pledge. |
|
(5) "P.O.D. payee" means a person designated on a |
|
P.O.D. account as a person to whom the account is payable on request |
|
after the death of one or more persons. |
|
(6) "Proof of death" includes: |
|
(A) a certified copy of a death certificate; or |
|
(B) a judgment or order of a court in a proceeding |
|
in which the death of a person is proved to the satisfaction of the |
|
court by circumstantial evidence in accordance with Chapter 454. |
|
(7) "Request" means a proper request for withdrawal, |
|
or a check or order for payment, that complies with all conditions |
|
of the account, including special requirements concerning |
|
necessary signatures and regulations of the financial institution. |
|
If a financial institution conditions withdrawal or payment on |
|
advance notice, for purposes of this chapter a request for |
|
withdrawal or payment is treated as immediately effective and a |
|
notice of intent to withdraw is treated as a request for withdrawal. |
|
(8) "Sums on deposit" means the balance payable on a |
|
multiple-party account including interest, dividends, and any |
|
deposit life insurance proceeds added to the account by reason of |
|
the death of a party. |
|
(9) "Withdrawal" includes payment to a third person in |
|
accordance with a check or other directive of a party. (Tex. Prob. |
|
Code, Secs. 436(1), (2), (3), (8), (9), (11), (12), (13), (15).) |
|
Sec. 113.002. DEFINITION OF PARTY. (a) In this chapter, |
|
"party" means a person who, by the terms of a multiple-party |
|
account, has a present right, subject to request, to payment from |
|
the account. Except as otherwise required by the context, the term |
|
includes a guardian, personal representative, or assignee, |
|
including an attaching creditor, of a party. The term also includes |
|
a person identified as a trustee of an account for another |
|
regardless of whether a beneficiary is named. The term does not |
|
include a named beneficiary unless the beneficiary has a present |
|
right of withdrawal. |
|
(b) A P.O.D. payee or beneficiary of a trust account is a |
|
party only after the account becomes payable to the P.O.D. payee or |
|
beneficiary by reason of the P.O.D. payee or beneficiary surviving |
|
the original payee or trustee. (Tex. Prob. Code, Sec. 436(7).) |
|
Sec. 113.003. DEFINITION OF NET CONTRIBUTION. (a) In this |
|
chapter, "net contribution" of a party to a joint account at any |
|
given time is the sum of all deposits made to that account by or for |
|
the party, less all withdrawals made by or for the party that have |
|
not been paid to or applied to the use of any other party, plus a pro |
|
rata share of any interest or dividends included in the current |
|
balance of the account. The term also includes any deposit life |
|
insurance proceeds added to the account by reason of the death of |
|
the party whose net contribution is in question. |
|
(b) A financial institution may not be required to inquire, |
|
for purposes of establishing net contributions, about: |
|
(1) the source of funds received for deposit to a |
|
multiple-party account; or |
|
(2) the proposed application of an amount withdrawn |
|
from a multiple-party account. (Tex. Prob. Code, Secs. 436(6), 444 |
|
(part).) |
|
Sec. 113.004. TYPES OF ACCOUNTS. In this chapter: |
|
(1) "Convenience account" means an account that: |
|
(A) is established at a financial institution by |
|
one or more parties in the names of the parties and one or more |
|
convenience signers; and |
|
(B) has terms that provide that the sums on |
|
deposit are paid or delivered to the parties or to the convenience |
|
signers "for the convenience" of the parties. |
|
(2) "Joint account" means an account payable on |
|
request to one or more of two or more parties, regardless of whether |
|
there is a right of survivorship. |
|
(3) "Multiple-party account" means a joint account, a |
|
convenience account, a P.O.D. account, or a trust account. The term |
|
does not include an account established for the deposit of funds of |
|
a partnership, joint venture, or other association for business |
|
purposes, or an account controlled by one or more persons as the |
|
authorized agent or trustee for a corporation, unincorporated |
|
association, charitable or civic organization, or a regular |
|
fiduciary or trust account in which the relationship is established |
|
other than by deposit agreement. |
|
(4) "P.O.D. account" means an account payable on |
|
request to: |
|
(A) one person during the person's lifetime and, |
|
on the person's death, to one or more P.O.D. payees; or |
|
(B) one or more persons during their lifetimes |
|
and, on the death of all of those persons, to one or more P.O.D. |
|
payees. |
|
(5) "Trust account" means an account in the name of one |
|
or more parties as trustee for one or more beneficiaries in which |
|
the relationship is established by the form of the account and the |
|
deposit agreement with the financial institution and in which there |
|
is no subject of the trust other than the sums on deposit in the |
|
account. The deposit agreement is not required to address payment |
|
to the beneficiary. The term does not include: |
|
(A) a regular trust account under a testamentary |
|
trust or a trust agreement that has significance apart from the |
|
account; or |
|
(B) a fiduciary account arising from a fiduciary |
|
relationship, such as the attorney-client relationship. (Tex. |
|
Prob. Code, Secs. 436(4), (5), (10), (14), 438A(a).) |
|
Sec. 113.005. AUTHORITY OF FINANCIAL INSTITUTIONS TO ENTER |
|
INTO CERTAIN ACCOUNTS. A financial institution may enter into a |
|
multiple-party account to the same extent that the institution may |
|
enter into a single-party account. (Tex. Prob. Code, Sec. 444 |
|
(part).) |
|
[Sections 113.006-113.050 reserved for expansion] |
|
SUBCHAPTER B. UNIFORM ACCOUNT FORM |
|
Sec. 113.051. ESTABLISHMENT OF TYPE OF ACCOUNT; |
|
APPLICABILITY OF CERTAIN LAW. (a) A contract of deposit that |
|
contains provisions substantially the same as in the form provided |
|
by Section 113.052 establishes the type of account selected by a |
|
party. This chapter governs an account selected under the form, |
|
other than a single-party account without a P.O.D. designation. |
|
(b) A contract of deposit that does not contain provisions |
|
substantially the same as in the form provided by Section 113.052 is |
|
governed by the provisions of this chapter applicable to the type of |
|
account that most nearly conforms to the depositor's intent. (Tex. |
|
Prob. Code, Sec. 439A(a).) |
|
Sec. 113.052. FORM. A financial institution may use the |
|
following form to establish the type of account selected by a party: |
|
UNIFORM SINGLE-PARTY OR MULTIPLE-PARTY ACCOUNT SELECTION |
|
FORM NOTICE: The type of account you select may determine how |
|
property passes on your death. Your will may not control the |
|
disposition of funds held in some of the following accounts. |
|
Select one of the following accounts by placing your initials |
|
next to the account selected: |
|
___ (1) SINGLE-PARTY ACCOUNT WITHOUT "P.O.D." (PAYABLE ON |
|
DEATH) DESIGNATION. The party to the account owns the account. On |
|
the death of the party, ownership of the account passes as a part of |
|
the party's estate under the party's will or by intestacy. |
|
Enter the name of the party: |
|
________________________________________________________________ |
|
___ (2) SINGLE-PARTY ACCOUNT WITH "P.O.D." (PAYABLE ON |
|
DEATH) DESIGNATION. The party to the account owns the account. On |
|
the death of the party, ownership of the account passes to the |
|
P.O.D. beneficiaries of the account. The account is not a part of |
|
the party's estate. |
|
Enter the name of the party: |
|
________________________________________________________________ |
|
Enter the name or names of the P.O.D. beneficiaries: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
___ (3) MULTIPLE-PARTY ACCOUNT WITHOUT RIGHT OF |
|
SURVIVORSHIP. The parties to the account own the account in |
|
proportion to the parties' net contributions to the account. The |
|
financial institution may pay any sum in the account to a party at |
|
any time. On the death of a party, the party's ownership of the |
|
account passes as a part of the party's estate under the party's |
|
will or by intestacy. |
|
Enter the names of the parties: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
___ (4) MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP. |
|
The parties to the account own the account in proportion to the |
|
parties' net contributions to the account. The financial |
|
institution may pay any sum in the account to a party at any time. |
|
On the death of a party, the party's ownership of the account passes |
|
to the surviving parties. |
|
Enter the names of the parties: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
___ (5) MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP AND |
|
P.O.D. (PAYABLE ON DEATH) DESIGNATION. The parties to the account |
|
own the account in proportion to the parties' net contributions to |
|
the account. The financial institution may pay any sum in the |
|
account to a party at any time. On the death of the last surviving |
|
party, the ownership of the account passes to the P.O.D. |
|
beneficiaries. |
|
Enter the names of the parties: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
Enter the name or names of the P.O.D. beneficiaries: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
___ (6) CONVENIENCE ACCOUNT. The parties to the account own |
|
the account. One or more convenience signers to the account may |
|
make account transactions for a party. A convenience signer does |
|
not own the account. On the death of the last surviving party, |
|
ownership of the account passes as a part of the last surviving |
|
party's estate under the last surviving party's will or by |
|
intestacy. The financial institution may pay funds in the account |
|
to a convenience signer before the financial institution receives |
|
notice of the death of the last surviving party. The payment to a |
|
convenience signer does not affect the parties' ownership of the |
|
account. |
|
Enter the names of the parties: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
Enter the names of the convenience signers: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
___ (7) TRUST ACCOUNT. The parties named as trustees to the |
|
account own the account in proportion to the parties' net |
|
contributions to the account. A trustee may withdraw funds from the |
|
account. A beneficiary may not withdraw funds from the account |
|
before all trustees are deceased. On the death of the last |
|
surviving trustee, the ownership of the account passes to the |
|
beneficiary. The trust account is not a part of a trustee's estate |
|
and does not pass under the trustee's will or by intestacy, unless |
|
the trustee survives all of the beneficiaries and all other |
|
trustees. |
|
Enter the name or names of the trustees: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
Enter the name or names of the beneficiaries: |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
(Tex. Prob. Code, Sec. 439A(b).) |
|
Sec. 113.053. USE OF FORM; DISCLOSURE. (a) A financial |
|
institution is considered to have adequately disclosed the |
|
information provided in this subchapter if the financial |
|
institution uses the form provided by Section 113.052. |
|
(b) If a financial institution varies the format of the form |
|
provided by Section 113.052, the financial institution may make |
|
disclosures in the account agreement or in any other form that |
|
adequately discloses the information provided by this subchapter. |
|
(c) If the customer receives adequate disclosure of the |
|
ownership rights to an account and the names of the parties are |
|
appropriately indicated, a financial institution may combine any of |
|
the provisions in, and vary the format of, the form and notices |
|
described in Section 113.052 in: |
|
(1) a universal account form with options listed for |
|
selection and additional disclosures provided in the account |
|
agreement; or |
|
(2) any other manner that adequately discloses the |
|
information provided by this subchapter. (Tex. Prob. Code, Secs. |
|
439A(c), (d).) |
|
[Sections 113.054-113.100 reserved for expansion] |
|
SUBCHAPTER C. OWNERSHIP AND OPERATION OF ACCOUNTS |
|
Sec. 113.101. EFFECT OF CERTAIN PROVISIONS REGARDING |
|
OWNERSHIP BETWEEN PARTIES AND OTHERS. The provisions of this |
|
subchapter and Subchapters B and D that relate to beneficial |
|
ownership between parties, or between parties and P.O.D. payees or |
|
beneficiaries of multiple-party accounts: |
|
(1) are relevant only to controversies between those |
|
persons and those persons' creditors and other successors; and |
|
(2) do not affect the withdrawal power of those |
|
persons under the terms of an account contract. (Tex. Prob. Code, |
|
Sec. 437.) |
|
Sec. 113.102. OWNERSHIP OF JOINT ACCOUNT DURING PARTIES' |
|
LIFETIMES. During the lifetime of all parties to a joint account, |
|
the account belongs to the parties in proportion to the net |
|
contributions by each party to the sums on deposit unless there is |
|
clear and convincing evidence of a different intent. (Tex. Prob. |
|
Code, Sec. 438(a).) |
|
Sec. 113.103. OWNERSHIP OF P.O.D. ACCOUNT DURING ORIGINAL |
|
PAYEE'S LIFETIME. (a) During the lifetime of an original payee of |
|
a P.O.D. account, the account belongs to the original payee and does |
|
not belong to the P.O.D. payee or payees. |
|
(b) If two or more parties are named as original payees of a |
|
P.O.D. account, during the parties' lifetimes rights between the |
|
parties are governed by Section 113.102. (Tex. Prob. Code, Sec. |
|
438(b).) |
|
Sec. 113.104. OWNERSHIP OF TRUST ACCOUNT DURING TRUSTEE'S |
|
LIFETIME. (a) A trust account belongs beneficially to the trustee |
|
during the trustee's lifetime unless: |
|
(1) the terms of the account or the deposit agreement |
|
manifest a contrary intent; or |
|
(2) other clear and convincing evidence of an |
|
irrevocable trust exists. |
|
(b) If two or more parties are named as trustees on a trust |
|
account, during the parties' lifetimes beneficial rights between |
|
the parties are governed by Section 113.102. |
|
(c) An account that is an irrevocable trust belongs |
|
beneficially to the beneficiary. (Tex. Prob. Code, Sec. 438(c).) |
|
Sec. 113.105. OWNERSHIP OF CONVENIENCE ACCOUNT; ADDITIONS |
|
AND ACCRUALS. (a) The making of a deposit in a convenience account |
|
does not affect the title to the deposit. |
|
(b) A party to a convenience account is not considered to |
|
have made a gift of the deposit, or of any additions or accruals to |
|
the deposit, to a convenience signer. |
|
(c) An addition made to a convenience account by anyone |
|
other than a party, and accruals to the addition, are considered to |
|
have been made by a party. (Tex. Prob. Code, Secs. 438A(b), (c), |
|
(e).) |
|
[Sections 113.106-113.150 reserved for expansion] |
|
SUBCHAPTER D. RIGHTS OF SURVIVORSHIP IN ACCOUNTS |
|
Sec. 113.151. ESTABLISHMENT OF RIGHT OF SURVIVORSHIP IN |
|
JOINT ACCOUNT; OWNERSHIP ON DEATH OF PARTY. (a) Sums remaining on |
|
deposit on the death of a party to a joint account belong to the |
|
surviving party or parties against the estate of the deceased party |
|
if the interest of the deceased party is made to survive to the |
|
surviving party or parties by a written agreement signed by the |
|
party who dies. |
|
(b) Notwithstanding any other law, an agreement is |
|
sufficient under this section to confer an absolute right of |
|
survivorship on parties to a joint account if the agreement |
|
contains a statement substantially similar to the following: "On |
|
the death of one party to a joint account, all sums in the account on |
|
the date of the death vest in and belong to the surviving party as |
|
his or her separate property and estate." |
|
(c) A survivorship agreement may not be inferred from the |
|
mere fact that the account is a joint account. |
|
(d) If there are two or more surviving parties to a joint |
|
account that is subject to a right of survivorship agreement: |
|
(1) during the parties' lifetimes respective |
|
ownerships are in proportion to the parties' previous ownership |
|
interests under Sections 113.102, 113.103, and 113.104, as |
|
applicable, augmented by an equal share for each survivor of any |
|
interest a deceased party owned in the account immediately before |
|
that party's death; and |
|
(2) the right of survivorship continues between the |
|
surviving parties if a written agreement signed by a party who dies |
|
provides for that continuation. (Tex. Prob. Code, Sec. 439(a).) |
|
Sec. 113.152. OWNERSHIP OF P.O.D. ACCOUNT ON DEATH OF |
|
PARTY. (a) If the account is a P.O.D. account and there is a |
|
written agreement signed by the original payee or payees, on the |
|
death of the original payee or on the death of the survivor of two or |
|
more original payees, any sums remaining on deposit belong to: |
|
(1) the P.O.D. payee or payees if surviving; or |
|
(2) the survivor of the P.O.D. payees if one or more |
|
P.O.D. payees die before the original payee. |
|
(b) If two or more P.O.D. payees survive, no right of |
|
survivorship exists between the surviving P.O.D. payees unless the |
|
terms of the account or deposit agreement expressly provide for |
|
survivorship between those payees. (Tex. Prob. Code, Sec. 439(b).) |
|
Sec. 113.153. OWNERSHIP OF TRUST ACCOUNT ON DEATH OF |
|
TRUSTEE. (a) If the account is a trust account and there is a |
|
written agreement signed by the trustee or trustees, on death of the |
|
trustee or the survivor of two or more trustees, any sums remaining |
|
on deposit belong to: |
|
(1) the person or persons named as beneficiaries, if |
|
surviving; or |
|
(2) the survivor of the persons named as beneficiaries |
|
if one or more beneficiaries die before the trustee. |
|
(b) If two or more beneficiaries survive, no right of |
|
survivorship exists between the surviving beneficiaries unless the |
|
terms of the account or deposit agreement expressly provide for |
|
survivorship between those beneficiaries. (Tex. Prob. Code, Sec. |
|
439(c).) |
|
Sec. 113.154. OWNERSHIP OF CONVENIENCE ACCOUNT ON DEATH OF |
|
PARTY. On the death of the last surviving party to a convenience |
|
account: |
|
(1) a convenience signer has no right of survivorship |
|
in the account; and |
|
(2) ownership of the account remains in the estate of |
|
the last surviving party. (Tex. Prob. Code, Sec. 438A(d).) |
|
Sec. 113.155. EFFECT OF DEATH OF PARTY ON CERTAIN ACCOUNTS |
|
WITHOUT RIGHTS OF SURVIVORSHIP. The death of a party to a |
|
multiple-party account to which Sections 113.151, 113.152, and |
|
113.153 do not apply has no effect on the beneficial ownership of |
|
the account, other than to transfer the rights of the deceased party |
|
as part of the deceased party's estate. (Tex. Prob. Code, Sec. |
|
439(d).) |
|
Sec. 113.156. APPLICABILITY OF CERTAIN PROVISIONS ON DEATH |
|
OF PARTY. Sections 113.151, 113.152, 113.153, and 113.155 as to |
|
rights of survivorship are determined by the form of the account at |
|
the death of a party. (Tex. Prob. Code, Sec. 440 (part).) |
|
Sec. 113.157. WRITTEN NOTICE TO FINANCIAL INSTITUTIONS |
|
REGARDING FORM OF ACCOUNT. Notwithstanding any other law, the form |
|
of an account may be altered by written order given by a party to the |
|
financial institution to change the form of the account or to stop |
|
or vary payment under the terms of the account. The order or |
|
request must be signed by a party, received by the financial |
|
institution during the party's lifetime, and not countermanded by |
|
another written order of the same party during the party's |
|
lifetime. (Tex. Prob. Code, Sec. 440 (part).) |
|
Sec. 113.158. NONTESTAMENTARY NATURE OF CERTAIN TRANSFERS. |
|
Transfers resulting from the application of Sections 113.151, |
|
113.152, 113.153, and 113.155 are effective by reason of the |
|
account contracts involved and this chapter and are not to be |
|
considered testamentary transfers or subject to the testamentary |
|
provisions of this title. (Tex. Prob. Code, Sec. 441.) |
|
[Sections 113.159-113.200 reserved for expansion] |
|
SUBCHAPTER E. PROTECTION OF FINANCIAL INSTITUTIONS |
|
Sec. 113.201. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
and Section 113.003(b) govern: |
|
(1) the liability of financial institutions that make |
|
payments as provided by this subchapter; and |
|
(2) the set-off rights of those institutions. (Tex. |
|
Prob. Code, Sec. 443.) |
|
Sec. 113.202. PAYMENT OF MULTIPLE-PARTY ACCOUNT. A |
|
multiple-party account may be paid, on request, to any one or more |
|
of the parties. (Tex. Prob. Code, Sec. 444 (part).) |
|
Sec. 113.203. PAYMENT OF JOINT ACCOUNT. (a) Subject to |
|
Subsection (b), amounts in a joint account may be paid, on request, |
|
to any party without regard to whether any other party is |
|
incapacitated or deceased at the time the payment is demanded. |
|
(b) Payment may not be made to the personal representative |
|
or heir of a deceased party unless: |
|
(1) proofs of death are presented to the financial |
|
institution showing that the deceased party was the last surviving |
|
party; or |
|
(2) there is no right of survivorship under Sections |
|
113.151, 113.152, 113.153, and 113.155. (Tex. Prob. Code, Sec. 445 |
|
(part).) |
|
Sec. 113.204. PAYMENT OF P.O.D. ACCOUNT. (a) A P.O.D. |
|
account may be paid, on request, to any original payee of the |
|
account. |
|
(b) Payment may be made, on request, to the P.O.D. payee or |
|
to the personal representative or heirs of a deceased P.O.D. payee |
|
on the presentation to the financial institution of proof of death |
|
showing that the P.O.D. payee survived each person named as an |
|
original payee. |
|
(c) Payment may be made to the personal representative or |
|
heirs of a deceased original payee if proof of death is presented to |
|
the financial institution showing that the deceased original payee |
|
was the survivor of each other person named on the account as an |
|
original payee or a P.O.D. payee. (Tex. Prob. Code, Sec. 446.) |
|
Sec. 113.205. PAYMENT OF TRUST ACCOUNT. (a) A trust |
|
account may be paid, on request, to any trustee. |
|
(b) Unless a financial institution has received written |
|
notice that a beneficiary has a vested interest not dependent on the |
|
beneficiary's surviving the trustee, payment may be made to the |
|
personal representative or heirs of a deceased trustee if proof of |
|
death is presented to the financial institution showing that the |
|
deceased trustee was the survivor of each other person named on the |
|
account as a trustee or beneficiary. |
|
(c) Payment may be made, on request, to a beneficiary if |
|
proof of death is presented to the financial institution showing |
|
that the beneficiary or beneficiaries survived all persons named as |
|
trustees. (Tex. Prob. Code, Sec. 447.) |
|
Sec. 113.206. PAYMENT OF CONVENIENCE ACCOUNT. Deposits to |
|
a convenience account and additions and accruals to the deposits |
|
may be paid to a party or a convenience signer. (Tex. Prob. Code, |
|
Sec. 438A(f) (part).) |
|
Sec. 113.207. LIABILITY FOR PAYMENT FROM JOINT ACCOUNT |
|
AFTER DEATH. A financial institution that pays an amount from a |
|
joint account to a surviving party to that account in accordance |
|
with a written agreement under Section 113.151 is not liable to an |
|
heir, devisee, or beneficiary of the deceased party's estate. |
|
(Tex. Prob. Code, Sec. 445 (part).) |
|
Sec. 113.208. LIABILITY FOR PAYMENT FROM CONVENIENCE |
|
ACCOUNT. (a) A financial institution is completely released from |
|
liability for a payment made from a convenience account before the |
|
financial institution receives notice in writing signed by a party |
|
not to make the payment in accordance with the terms of the account. |
|
After receipt of the notice from a party, the financial institution |
|
may require a party to approve any further payments from the |
|
account. |
|
(b) A financial institution that makes a payment of the sums |
|
on deposit in a convenience account to a convenience signer after |
|
the death of the last surviving party, but before the financial |
|
institution receives written notice of the last surviving party's |
|
death, is completely released from liability for the payment. |
|
(c) A financial institution that makes a payment of the sums |
|
on deposit in a convenience account to the personal representative |
|
of the deceased last surviving party's estate after the death of the |
|
last surviving party, but before a court order prohibiting payment |
|
is served on the financial institution, is, to the extent of the |
|
payment, released from liability to any person claiming a right to |
|
the funds. The personal representative's receipt of the funds is a |
|
complete release and discharge of the financial institution. (Tex. |
|
Prob. Code, Secs. 438A(f) (part), (g).) |
|
Sec. 113.209. DISCHARGE FROM CLAIMS. (a) Payment made in |
|
accordance with Section 113.202, 113.203, 113.204, 113.205, or |
|
113.207 discharges the financial institution from all claims for |
|
those amounts paid regardless of whether the payment is consistent |
|
with the beneficial ownership of the account between parties, |
|
P.O.D. payees, or beneficiaries, or their successors. |
|
(b) The protection provided by Subsection (a) does not |
|
extend to payments made after a financial institution receives, |
|
from any party able to request present payment, written notice to |
|
the effect that withdrawals in accordance with the terms of the |
|
account should not be permitted. Unless the notice is withdrawn by |
|
the person giving the notice, the successor of a deceased party must |
|
concur in a demand for withdrawal for the financial institution to |
|
be protected under Subsection (a). |
|
(c) No notice, other than the notice described by Subsection |
|
(b), or any other information shown to have been available to a |
|
financial institution affects the institution's right to the |
|
protection provided by Subsection (a). |
|
(d) The protection provided by Subsection (a) does not |
|
affect the rights of parties in disputes between the parties or the |
|
parties' successors concerning the beneficial ownership of funds |
|
in, or withdrawn from, multiple-party accounts. (Tex. Prob. Code, |
|
Sec. 448.) |
|
Sec. 113.210. SET-OFF TO FINANCIAL INSTITUTION. (a) |
|
Without qualifying any other statutory right to set-off or lien and |
|
subject to any contractual provision, if a party to a |
|
multiple-party account is indebted to a financial institution, the |
|
financial institution has a right to set-off against the account in |
|
which the party has, or had immediately before the party's death, a |
|
present right of withdrawal. |
|
(b) The amount of the account subject to set-off under this |
|
section is that proportion to which the debtor is, or was |
|
immediately before the debtor's death, beneficially entitled, and |
|
in the absence of proof of net contributions, to an equal share with |
|
all parties having present rights of withdrawal. (Tex. Prob. Code, |
|
Sec. 449.) |
|
[Sections 113.211-113.250 reserved for expansion] |
|
SUBCHAPTER F. RIGHTS OF CREDITORS; PLEDGE OF ACCOUNT |
|
Sec. 113.251. PLEDGE OF ACCOUNT. (a) A party to a |
|
multiple-party account may pledge the account or otherwise create a |
|
security interest in the account without the joinder of, as |
|
applicable, a P.O.D. payee, a beneficiary, a convenience signer, or |
|
any other party to a joint account, regardless of whether a right |
|
of survivorship exists. |
|
(b) A convenience signer may not pledge or otherwise create |
|
a security interest in an account. |
|
(c) Not later than the 30th day after the date a security |
|
interest on a multiple-party account is perfected, a secured |
|
creditor that is a financial institution with accounts insured by |
|
the Federal Deposit Insurance Corporation shall provide written |
|
notice of the pledge of the account to any other party to the |
|
account who did not create the security interest. The notice must |
|
be sent by certified mail to each other party at the last address |
|
the party provided to the depository bank. |
|
(d) The financial institution is not required to provide the |
|
notice described by Subsection (c) to a P.O.D. payee, beneficiary, |
|
or convenience signer. (Tex. Prob. Code, Sec. 442 (part).) |
|
Sec. 113.252. RIGHTS OF CREDITORS. (a) A multiple-party |
|
account is not effective against: |
|
(1) an estate of a deceased party to transfer to a |
|
survivor amounts needed to pay debts, taxes, and expenses of |
|
administration, including statutory allowances to the surviving |
|
spouse and minor children, if other assets of the estate are |
|
insufficient; or |
|
(2) the claim of a secured creditor who has a lien on |
|
the account. |
|
(b) A party, P.O.D. payee, or beneficiary who receives |
|
payment from a multiple-party account after the death of a deceased |
|
party is liable to account to the deceased party's personal |
|
representative for amounts the deceased party owned beneficially |
|
immediately before the party's death to the extent necessary to |
|
discharge the claims and charges described by Subsection (a) that |
|
remain unpaid after application of the deceased party's estate. |
|
The party, P.O.D. payee, or beneficiary is not liable in an amount |
|
greater than the amount the party, P.O.D. payee, or beneficiary |
|
received from the multiple-party account. |
|
(c) A proceeding to assert liability under Subsection (b): |
|
(1) may only be commenced if the personal |
|
representative receives a written demand by a surviving spouse, a |
|
creditor, or one acting for a minor child of the deceased party; and |
|
(2) must be commenced on or before the second |
|
anniversary of the death of the deceased party. |
|
(d) Amounts recovered by the personal representative under |
|
this section must be administered as part of the decedent's estate. |
|
(Tex. Prob. Code, Sec. 442 (part).) |
|
Sec. 113.253. NO EFFECT ON CERTAIN RIGHTS AND LIABILITIES |
|
OF FINANCIAL INSTITUTIONS. This subchapter does not: |
|
(1) affect the right of a financial institution to |
|
make payment on multiple-party accounts according to the terms of |
|
the account; or |
|
(2) make the financial institution liable to the |
|
estate of a deceased party unless, before payment, the institution |
|
received written notice from the personal representative stating |
|
the amounts needed to pay debts, taxes, claims, and expenses of |
|
administration. (Tex. Prob. Code, Sec. 442 (part).) |
|
[Chapters 114-120 reserved for expansion] |
|
CHAPTER 121. SURVIVAL REQUIREMENTS |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 121.001. APPLICABILITY OF CHAPTER |
|
[Sections 121.002-121.050 reserved for expansion] |
|
SUBCHAPTER B. SURVIVAL REQUIREMENT FOR INTESTATE SUCCESSION AND |
CERTAIN OTHER PURPOSES |
|
CERTAIN OTHER PURPOSES |
|
|
Sec. 121.051. APPLICABILITY OF SUBCHAPTER |
|
Sec. |
121.052. REQUIRED PERIOD OF SURVIVAL FOR |
|
|
|
|
PURPOSES |
|
Sec. |
121.053. INTESTATE SUCCESSION: FAILURE TO |
|
|
|
|
CIRCUMSTANCES |
|
[Sections 121.054-121.100 reserved for expansion] |
|
SUBCHAPTER C. SURVIVAL REQUIREMENTS FOR CERTAIN BENEFICIARIES |
|
|
Sec. 121.101. REQUIRED PERIOD OF SURVIVAL FOR DEVISEE |
|
Sec. |
121.102. REQUIRED PERIOD OF SURVIVAL FOR |
|
CONTINGENT BENEFICIARY |
|
[Sections 121.103-121.150 reserved for expansion] |
|
SUBCHAPTER D. DISTRIBUTION OF CERTAIN PROPERTY ON PERSON'S FAILURE |
TO SURVIVE FOR REQUIRED PERIOD |
|
TO SURVIVE FOR REQUIRED PERIOD |
|
|
Sec. 121.151. DISTRIBUTION OF COMMUNITY PROPERTY |
|
Sec. |
121.152. DISTRIBUTION OF PROPERTY OWNED BY JOINT |
|
OWNERS |
|
Sec. |
121.153. DISTRIBUTION OF CERTAIN INSURANCE |
|
PROCEEDS |
|
CHAPTER 121. SURVIVAL REQUIREMENTS |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 121.001. APPLICABILITY OF CHAPTER. This chapter does |
|
not apply if provision has been made by will, living trust, deed, or |
|
insurance contract, or in any other manner, for a disposition of |
|
property that is different from the disposition of the property |
|
that would be made if the provisions of this chapter applied. (Tex. |
|
Prob. Code, Sec. 47(f).) |
|
[Sections 121.002-121.050 reserved for expansion] |
|
SUBCHAPTER B. SURVIVAL REQUIREMENT FOR INTESTATE SUCCESSION AND |
|
CERTAIN OTHER PURPOSES |
|
Sec. 121.051. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
does not apply if the application of this subchapter would result in |
|
the escheat of an intestate estate. (Tex. Prob. Code, Sec. 47(a) |
|
(part).) |
|
Sec. 121.052. REQUIRED PERIOD OF SURVIVAL FOR INTESTATE |
|
SUCCESSION AND CERTAIN OTHER PURPOSES. A person who does not |
|
survive a decedent by 120 hours is considered to have predeceased |
|
the decedent for purposes of the homestead allowance, exempt |
|
property, and intestate succession, and the decedent's heirs are |
|
determined accordingly, except as otherwise provided by this |
|
chapter. (Tex. Prob. Code, Sec. 47(a) (part).) |
|
Sec. 121.053. INTESTATE SUCCESSION: FAILURE TO SURVIVE |
|
PRESUMED UNDER CERTAIN CIRCUMSTANCES. A person who, if the person |
|
survived a decedent by 120 hours, would be the decedent's heir is |
|
considered not to have survived the decedent for the required |
|
period if: |
|
(1) the time of death of the decedent or of the person, |
|
or the times of death of both, cannot be determined; and |
|
(2) the person's survival for the required period |
|
after the decedent's death cannot be established. (Tex. Prob. |
|
Code, Sec. 47(a) (part).) |
|
[Sections 121.054-121.100 reserved for expansion] |
|
SUBCHAPTER C. SURVIVAL REQUIREMENTS FOR CERTAIN BENEFICIARIES |
|
Sec. 121.101. REQUIRED PERIOD OF SURVIVAL FOR DEVISEE. A |
|
devisee who does not survive the testator by 120 hours is treated as |
|
if the devisee predeceased the testator unless the testator's will |
|
contains some language that: |
|
(1) deals explicitly with simultaneous death or deaths |
|
in a common disaster; or |
|
(2) requires the devisee to survive the testator, or |
|
to survive the testator for a stated period, to take under the will. |
|
(Tex. Prob. Code, Sec. 47(c) (part).) |
|
Sec. 121.102. REQUIRED PERIOD OF SURVIVAL FOR CONTINGENT |
|
BENEFICIARY. (a) If property is disposed of in a manner that |
|
conditions the right of a beneficiary to succeed to an interest in |
|
the property on the beneficiary surviving another person, the |
|
beneficiary is considered not to have survived the other person |
|
unless the beneficiary survives the person by 120 hours, except as |
|
provided by Subsection (b). |
|
(b) If an interest in property is given alternatively to one |
|
of two or more beneficiaries, with the right of each beneficiary to |
|
take being dependent on that beneficiary surviving the other |
|
beneficiary or beneficiaries, and all of the beneficiaries die |
|
within a period of less than 120 hours, the property shall be |
|
divided into as many equal portions as there are beneficiaries. The |
|
portions shall be distributed respectively to those who would have |
|
taken if each beneficiary had survived. (Tex. Prob. Code, Sec. |
|
47(c) (part).) |
|
[Sections 121.103-121.150 reserved for expansion] |
|
SUBCHAPTER D. DISTRIBUTION OF CERTAIN PROPERTY ON PERSON'S FAILURE |
|
TO SURVIVE FOR REQUIRED PERIOD |
|
Sec. 121.151. DISTRIBUTION OF COMMUNITY PROPERTY. (a) |
|
This section applies to community property, including the proceeds |
|
of life or accident insurance that are community property and |
|
become payable to the estate of either the husband or wife. |
|
(b) If a husband and wife die leaving community property but |
|
neither survives the other by 120 hours, one-half of all community |
|
property shall be distributed as if the husband had survived, and |
|
the other one-half shall be distributed as if the wife had survived. |
|
(Tex. Prob. Code, Sec. 47(b).) |
|
Sec. 121.152. DISTRIBUTION OF PROPERTY OWNED BY JOINT |
|
OWNERS. If property, including community property with a right of |
|
survivorship, is owned so that one of two joint owners is entitled |
|
to the whole of the property on the death of the other, but neither |
|
survives the other by 120 hours, one-half of the property shall be |
|
distributed as if one joint owner had survived, and the other |
|
one-half shall be distributed as if the other joint owner had |
|
survived. If there are more than two joint owners and all of the |
|
joint owners die within a period of less than 120 hours, the |
|
property shall be divided into as many equal portions as there are |
|
joint owners and the portions shall be distributed respectively to |
|
those who would have taken if each joint owner survived. (Tex. |
|
Prob. Code, Sec. 47(d).) |
|
Sec. 121.153. DISTRIBUTION OF CERTAIN INSURANCE PROCEEDS. |
|
(a) If the insured under a life or accident insurance policy and a |
|
beneficiary of the proceeds of that policy die within a period of |
|
less than 120 hours, the insured is considered to have survived the |
|
beneficiary for the purpose of determining the rights under the |
|
policy of the beneficiary or beneficiaries as such. |
|
(b) This section does not prevent the applicability of |
|
Section 121.151 to proceeds of life or accident insurance that are |
|
community property. (Tex. Prob. Code, Sec. 47(e).) |
|
CHAPTER 122. |
DISCLAIMERS AND ASSIGNMENTS |
|
SUBCHAPTER A. GENERAL PROVISIONS RELATING TO DISCLAIMER |
|
|
Sec. 122.001. DEFINITIONS |
|
Sec. 122.002. WHO MAY DISCLAIM |
|
Sec. 122.003. EFFECTIVE DATE; CREDITORS' CLAIMS |
|
Sec. 122.004. DISCLAIMER IRREVOCABLE |
|
Sec. 122.005. POWER TO PROVIDE METHOD OF DISCLAIMER |
|
[Sections 122.006-122.050 reserved for expansion] |
|
SUBCHAPTER B. FORM, FILING, AND NOTICE OF DISCLAIMER |
|
|
Sec. 122.051. FORM |
|
Sec. 122.052. FILING IN PROBATE COURT |
|
Sec. 122.053. FILING IN COUNTY OF DECEDENT'S RESIDENCE |
|
Sec. 122.054. NONRESIDENT DECEDENT |
|
Sec. 122.055. FILING DEADLINE |
|
Sec. 122.056. NOTICE |
|
[Sections 122.057-122.100 reserved for expansion] |
|
SUBCHAPTER C. EFFECT OF DISCLAIMER |
|
|
Sec. 122.101. EFFECT |
|
Sec. 122.102. INEFFECTIVE DISCLAIMER |
|
Sec. 122.103. SUBSEQUENT DISCLAIMER |
|
Sec. 122.104. DISCLAIMER AFTER ACCEPTANCE |
|
Sec. 122.105. INTEREST IN TRUST PROPERTY |
|
Sec. 122.106. INTEREST IN SECURITIES |
|
[Sections 122.107-122.150 reserved for expansion] |
|
SUBCHAPTER D. |
PARTIAL DISCLAIMER |
|
Sec. 122.151. PARTIAL DISCLAIMER |
|
Sec. 122.152. EFFECT OF PARTIAL DISCLAIMER |
|
Sec. 122.153. PARTIAL DISCLAIMER BY SPOUSE |
|
[Sections 122.154-122.200 reserved for expansion] |
|
SUBCHAPTER E. ASSIGNMENT OF INTEREST |
|
|
Sec. 122.201. ASSIGNMENT |
|
Sec. 122.202. FILING OF ASSIGNMENT |
|
Sec. 122.203. NOTICE |
|
Sec. 122.204. FAILURE TO COMPLY |
|
Sec. 122.205. GIFT |
|
Sec. 122.206. SPENDTHRIFT PROVISION |
|
CHAPTER 122. DISCLAIMERS AND ASSIGNMENTS |
|
SUBCHAPTER A. GENERAL PROVISIONS RELATING TO DISCLAIMER |
|
Sec. 122.001. DEFINITIONS. In this chapter, other than |
|
Subchapter E: |
|
(1) "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: |
|
(A) by inheritance; |
|
(B) under a will; |
|
(C) by an agreement between spouses for community |
|
property with a right of survivorship; |
|
(D) by a joint tenancy with a right of |
|
survivorship; |
|
(E) by a survivorship agreement, account, or |
|
interest in which the interest of the decedent passes to a surviving |
|
beneficiary; |
|
(F) by an insurance, annuity, endowment, |
|
employment, deferred compensation, or other contract or |
|
arrangement; or |
|
(G) 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. |
|
(2) "Disclaimer" includes renunciation. |
|
(3) "Property" includes all legal and equitable |
|
interests, powers, and property, present or future, vested or |
|
contingent, and beneficial or burdensome, in whole or in part. |
|
(Tex. Prob. Code, Sec. 37A(e).) |
|
Sec. 122.002. WHO MAY DISCLAIM. (a) A person who may be |
|
entitled to receive property as a beneficiary who on or after |
|
September 1, 1977, intends to irrevocably disclaim all or any part |
|
of the property shall evidence the disclaimer as provided by this |
|
chapter. |
|
(b) Subject to Subsection (c), the legally authorized |
|
representative of a person who may be entitled to receive property |
|
as a beneficiary who on or after September 1, 1977, intends to |
|
irrevocably disclaim all or any part of the property on the |
|
beneficiary's behalf shall evidence the disclaimer as provided by |
|
this chapter. |
|
(c) A disclaimer made by a legally authorized |
|
representative described by Subsection (d)(1), (2), or (3), other |
|
than an independent executor, must be made with prior court |
|
approval of the court that has or would have jurisdiction over the |
|
legally authorized representative. A disclaimer made by an |
|
independent executor on behalf of a decedent may be made without |
|
prior court approval. |
|
(d) In this section, "legally authorized representative" |
|
means: |
|
(1) a guardian if the person entitled to receive the |
|
property as a beneficiary is an incapacitated person; |
|
(2) a guardian ad litem if the person entitled to |
|
receive the property as a beneficiary is an unborn or unascertained |
|
person; |
|
(3) a personal representative, including an |
|
independent executor, if the person entitled to receive the |
|
property as a beneficiary is a decedent; or |
|
(4) an attorney in fact or agent appointed under a |
|
durable power of attorney authorizing disclaimers if the person |
|
entitled to receive the property as a beneficiary executed the |
|
power of attorney as a principal. (Tex. Prob. Code, Sec. 37A(a).) |
|
Sec. 122.003. EFFECTIVE DATE; CREDITORS' CLAIMS. (a) A |
|
disclaimer evidenced as provided by this chapter is effective for |
|
all purposes as of the date of the decedent's death. |
|
(b) Property disclaimed in accordance with this chapter is |
|
not subject to the claims of a creditor of the disclaimant. (Tex. |
|
Prob. Code, Sec. 37A(b).) |
|
Sec. 122.004. DISCLAIMER IRREVOCABLE. A disclaimer that is |
|
filed and served as provided by this chapter is irrevocable. (Tex. |
|
Prob. Code, Sec. 37A(k).) |
|
Sec. 122.005. POWER TO PROVIDE METHOD OF DISCLAIMER. A |
|
will, insurance policy, employee benefit agreement, or other |
|
instrument may provide for the making of a disclaimer by a |
|
beneficiary of an interest receivable under that instrument and for |
|
the disposition of disclaimed property in a manner different than |
|
provided by this chapter. (Tex. Prob. Code, Sec. 37A(j).) |
|
[Sections 122.006-122.050 reserved for expansion] |
|
SUBCHAPTER B. FORM, FILING, AND NOTICE OF DISCLAIMER |
|
Sec. 122.051. FORM. A disclaimer of property receivable by |
|
a beneficiary must be evidenced by written memorandum acknowledged |
|
before: |
|
(1) a notary public; or |
|
(2) another person authorized to take acknowledgments |
|
of conveyances of real estate. (Tex. Prob. Code, Sec. 37A(g).) |
|
Sec. 122.052. FILING IN PROBATE COURT. Except as provided |
|
by Sections 122.053 and 122.054, the written memorandum of |
|
disclaimer must be filed in the probate court in which: |
|
(1) the decedent's will has been probated; |
|
(2) proceedings have commenced for the administration |
|
of the decedent's estate; or |
|
(3) an application has been filed for probate of the |
|
decedent's will or administration of the decedent's estate. (Tex. |
|
Prob. Code, Sec. 37A(h) (part).) |
|
Sec. 122.053. FILING IN COUNTY OF DECEDENT'S RESIDENCE. |
|
The written memorandum of disclaimer must be filed with the county |
|
clerk of the county of the decedent's residence on the date of the |
|
decedent's death if: |
|
(1) the administration of the decedent's estate is |
|
closed; |
|
(2) one year has expired since the date letters |
|
testamentary were issued in an independent administration; |
|
(3) a will of the decedent has not been probated or |
|
filed for probate; |
|
(4) administration of the decedent's estate has not |
|
commenced; or |
|
(5) an application for administration of the |
|
decedent's estate has not been filed. (Tex. Prob. Code, Sec. 37A(h) |
|
(part).) |
|
Sec. 122.054. NONRESIDENT DECEDENT. If the decedent is not |
|
a resident of this state on the date of the decedent's death and the |
|
disclaimer is of real property that is located in this state, the |
|
written memorandum of disclaimer must be: |
|
(1) filed with the county clerk of the county in which |
|
the real property is located; and |
|
(2) recorded by the county clerk in the deed records of |
|
that county. (Tex. Prob. Code, Sec. 37A(h) (part).) |
|
Sec. 122.055. FILING DEADLINE. (a) Except as provided by |
|
Subsection (c), a written memorandum of disclaimer of a present |
|
interest must be filed not later than nine months after the date of |
|
the decedent's death. |
|
(b) Except as provided by Subsection (c), a written |
|
memorandum of disclaimer of a future interest may be filed not later |
|
than nine months after the date of the event determining that the |
|
taker of the property or interest is finally ascertained and the |
|
taker's interest is indefeasibly vested. |
|
(c) If the beneficiary is a charitable organization or a |
|
governmental agency of the state, a written memorandum of |
|
disclaimer of a present or future interest must be filed not later |
|
than the later of: |
|
(1) the first anniversary of the date the beneficiary |
|
receives the notice required by Subchapter A, Chapter 308; or |
|
(2) the expiration of the six-month period following |
|
the date the personal representative files the inventory, |
|
appraisement, and list of claims due or owing to the estate. (Tex. |
|
Prob. Code, Sec. 37A(h) (part).) |
|
Sec. 122.056. NOTICE. (a) Except as provided by Subsection |
|
(b), a copy of the written memorandum of disclaimer shall be |
|
delivered in person to, or 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: |
|
(1) the date of the decedent's death; or |
|
(2) if the interest is a future interest, the date the |
|
person who will receive the property or interest is finally |
|
ascertained and the person's interest is indefeasibly vested. |
|
(b) If the beneficiary is a charitable organization or a |
|
governmental agency of this state, notice of a disclaimer required |
|
by Subsection (a) must be filed not later than the later of: |
|
(1) the first anniversary of the date the beneficiary |
|
receives the notice required by Subchapter A, Chapter 308; or |
|
(2) the expiration of the six-month period following |
|
the date the personal representative files the inventory, |
|
appraisement, and list of claims due or owing to the estate. (Tex. |
|
Prob. Code, Sec. 37A(i).) |
|
[Sections 122.057-122.100 reserved for expansion] |
|
SUBCHAPTER C. EFFECT OF DISCLAIMER |
|
Sec. 122.101. EFFECT. Unless the decedent's will provides |
|
otherwise: |
|
(1) property subject to a disclaimer passes as if the |
|
person disclaiming or on whose behalf a disclaimer is made had |
|
predeceased the decedent; and |
|
(2) 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. (Tex. Prob. Code, Sec. |
|
37A(c).) |
|
Sec. 122.102. INEFFECTIVE DISCLAIMER. (a) Except as |
|
provided by Subsection (b), a disclaimer that does not comply with |
|
this chapter is ineffective. |
|
(b) A disclaimer otherwise ineffective under Subsection (a) |
|
is effective as an assignment of the disclaimed property to those |
|
who would have received the property had the person attempting the |
|
disclaimer died before the decedent. (Tex. Prob. Code, Sec. |
|
37A(d).) |
|
Sec. 122.103. SUBSEQUENT DISCLAIMER. This chapter does not |
|
prevent a person who is entitled to property as the result of a |
|
disclaimer from subsequently disclaiming the property. (Tex. Prob. |
|
Code, Sec. 37A(f).) |
|
Sec. 122.104. DISCLAIMER AFTER ACCEPTANCE. A disclaimer is |
|
not effective if the person making the disclaimer has previously |
|
accepted the property by taking possession or exercising dominion |
|
and control of the property as a beneficiary. (Tex. Prob. Code, |
|
Sec. 37A(n).) |
|
Sec. 122.105. 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. (Tex. Prob. Code, Sec. 37A(o) (part).) |
|
Sec. 122.106. INTEREST IN SECURITIES. 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 (15 U.S.C. Section 78a et seq.) is not considered an |
|
ownership interest in the business of the issuer of the securities |
|
within the meaning of any statute, pursuant thereto. (Tex. Prob. |
|
Code, Sec. 37A(o) (part).) |
|
[Sections 122.107-122.150 reserved for expansion] |
|
SUBCHAPTER D. PARTIAL DISCLAIMER |
|
Sec. 122.151. PARTIAL DISCLAIMER. A person who may be |
|
entitled to receive property as a beneficiary may wholly or partly |
|
disclaim the property, including: |
|
(1) specific powers of invasion; |
|
(2) powers of appointment; and |
|
(3) fee estate in favor of life estates. (Tex. Prob. |
|
Code, Sec. 37A(l) (part).) |
|
Sec. 122.152. EFFECT OF PARTIAL DISCLAIMER. A partial |
|
disclaimer in accordance with this chapter is effective whether the |
|
property disclaimed constitutes a portion of a single, aggregate |
|
gift or constitutes part or all of a separate, independent gift, |
|
except that: |
|
(1) a partial disclaimer is effective only with |
|
respect to property expressly described or referred to by category |
|
in the disclaimer; and |
|
(2) a partial disclaimer of property subject to a |
|
burdensome interest created by the decedent's will is not effective |
|
unless the property constitutes a gift separate and distinct from |
|
undisclaimed gifts. (Tex. Prob. Code, Sec. 37A(l) (part).) |
|
Sec. 122.153. PARTIAL DISCLAIMER BY SPOUSE. 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. (Tex. Prob. Code, Sec. 37A(m).) |
|
[Sections 122.154-122.200 reserved for expansion] |
|
SUBCHAPTER E. ASSIGNMENT OF INTEREST |
|
Sec. 122.201. ASSIGNMENT. A person who is entitled to |
|
receive property or an interest in property from a decedent under a |
|
will, by inheritance, or as a beneficiary under a life insurance |
|
contract, and does not disclaim the property under this chapter may |
|
assign the property or interest in property to any person. (Tex. |
|
Prob. Code, Sec. 37B(a).) |
|
Sec. 122.202. FILING OF ASSIGNMENT. An assignment may, at |
|
the request of the assignor, be filed as provided for the filing of |
|
a disclaimer under Subchapter B. (Tex. Prob. Code, Sec. 37B(b) |
|
(part).) |
|
Sec. 122.203. NOTICE. Notice of the filing of an assignment |
|
as provided by Section 122.202 must be served as required by Section |
|
122.056 for notice of a disclaimer. (Tex. Prob. Code, Sec. 37B(b) |
|
(part).) |
|
Sec. 122.204. FAILURE TO COMPLY. Failure to comply with |
|
Subchapters A, B, C, and D does not affect an assignment. (Tex. |
|
Prob. Code, Sec. 37B(c).) |
|
Sec. 122.205. GIFT. An assignment under this subchapter is |
|
a gift to the assignee and is not a disclaimer under Subchapters A, |
|
B, C, and D. (Tex. Prob. Code, Sec. 37B(d).) |
|
Sec. 122.206. SPENDTHRIFT PROVISION. An assignment of |
|
property or interest that would defeat a spendthrift provision |
|
imposed in a trust may not be made under this subchapter. (Tex. |
|
Prob. Code, Sec. 37B(e).) |
|
CHAPTER 123. DISSOLUTION OF MARRIAGE |
|
|
SUBCHAPTER A. EFFECT OF DISSOLUTION OF MARRIAGE ON WILL |
|
|
Sec. |
123.001. WILL PROVISIONS MADE BEFORE DISSOLUTION |
|
OF MARRIAGE |
|
Sec. 123.002. TREATMENT OF DECEDENT'S FORMER SPOUSE |
|
[Sections 123.003-123.050 reserved for expansion] |
|
SUBCHAPTER B. EFFECT OF DISSOLUTION OF MARRIAGE ON CERTAIN |
NONTESTAMENTARY TRANSFERS |
|
NONTESTAMENTARY TRANSFERS |
|
|
Sec. 123.051. DEFINITIONS |
|
Sec. |
123.052. REVOCATION OF CERTAIN NONTESTAMENTARY |
|
|
|
|
|
|
|
OR PLANS |
|
Sec. 123.053. EFFECT OF REVOCATION |
|
Sec. |
123.054. LIABILITY OF CERTAIN PURCHASERS OR |
|
|
|
|
BENEFITS, OR PROPERTY |
|
Sec. |
123.055. LIABILITY OF FORMER SPOUSE FOR CERTAIN |
|
PAYMENTS, BENEFITS, OR PROPERTY |
|
[Sections 123.056-123.100 reserved for expansion] |
|
SUBCHAPTER C. CERTAIN MARRIAGES VOIDABLE AFTER DEATH |
|
|
Sec. |
123.101. PROCEEDING TO VOID MARRIAGE BASED ON |
|
|
|
|
DEATH |
|
Sec. 123.102. APPLICATION TO VOID MARRIAGE AFTER DEATH |
|
Sec. |
123.103. ACTION ON APPLICATION TO VOID MARRIAGE |
|
AFTER DEATH |
|
Sec. 123.104. EFFECT OF VOIDED MARRIAGE |
|
CHAPTER 123. DISSOLUTION OF MARRIAGE |
|
SUBCHAPTER A. EFFECT OF DISSOLUTION OF MARRIAGE ON WILL |
|
Sec. 123.001. WILL PROVISIONS MADE BEFORE DISSOLUTION OF |
|
MARRIAGE. (a) In this section, "relative" means an individual |
|
related to another individual by: |
|
(1) consanguinity, as determined under Section |
|
573.022, Government Code; or |
|
(2) affinity, as determined under Section 573.024, |
|
Government Code. |
|
(b) If, after the testator makes a will, the testator's |
|
marriage is dissolved by divorce, annulment, or a declaration that |
|
the marriage is void, all provisions in the will, including all |
|
fiduciary appointments, shall 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, unless the will expressly |
|
provides otherwise. (Tex. Prob. Code, Secs. 69(a), (b).) |
|
Sec. 123.002. TREATMENT OF DECEDENT'S FORMER SPOUSE. A |
|
person is not a surviving spouse of a decedent if the person's |
|
marriage to the decedent has been dissolved by divorce, annulment, |
|
or a declaration that the marriage is void, unless: |
|
(1) as the result of a subsequent marriage, the person |
|
is married to the decedent at the time of death; and |
|
(2) the subsequent marriage is not declared void under |
|
Subchapter C. (Tex. Prob. Code, Sec. 69(c).) |
|
[Sections 123.003-123.050 reserved for expansion] |
|
SUBCHAPTER B. EFFECT OF DISSOLUTION OF MARRIAGE ON CERTAIN |
|
NONTESTAMENTARY TRANSFERS |
|
Sec. 123.051. DEFINITIONS. In this subchapter: |
|
(1) "Disposition or appointment of property" includes |
|
a transfer of property to or a provision of another benefit to a |
|
beneficiary under a trust instrument. |
|
(2) "Divorced individual" means an individual whose |
|
marriage has been dissolved by divorce or annulment. |
|
(3) "Revocable," with respect to a disposition, |
|
appointment, provision, or nomination, means a disposition to, |
|
appointment of, provision in favor of, or nomination of an |
|
individual's spouse that is contained in a trust instrument |
|
executed by the individual before the dissolution of the |
|
individual's marriage to the spouse and that the individual was |
|
solely empowered by law or by the trust instrument to revoke |
|
regardless of whether the individual had the capacity to exercise |
|
the power at that time. (Tex. Prob. Code, Sec. 471.) |
|
Sec. 123.052. REVOCATION OF CERTAIN NONTESTAMENTARY |
|
TRANSFERS; TREATMENT OF FORMER SPOUSE AS BENEFICIARY UNDER CERTAIN |
|
POLICIES OR PLANS. (a) The dissolution of the marriage revokes a |
|
provision in a trust instrument that was executed by a divorced |
|
individual before the individual's marriage was dissolved and that: |
|
(1) is a revocable disposition or appointment of |
|
property made to the individual's former spouse; |
|
(2) confers a general or special power of appointment |
|
on the individual's former spouse; or |
|
(3) nominates the individual's former spouse to serve: |
|
(A) as a personal representative, trustee, |
|
conservator, agent, or guardian; or |
|
(B) in another fiduciary or representative |
|
capacity. |
|
(b) Subsection (a) does not apply if one of the following |
|
provides otherwise: |
|
(1) a court order; |
|
(2) the express terms of a trust instrument executed |
|
by the divorced individual before the individual's marriage was |
|
dissolved; or |
|
(3) an express provision of a contract relating to the |
|
division of the marital estate entered into between the divorced |
|
individual and the individual's former spouse before, during, or |
|
after the marriage. |
|
(c) Sections 9.301 and 9.302, Family Code, govern the |
|
designation of a former spouse as a beneficiary of certain life |
|
insurance policies or as a beneficiary under certain retirement |
|
benefit plans or other financial plans. (Tex. Prob. Code, Sec. |
|
472(a); New.) |
|
Sec. 123.053. EFFECT OF REVOCATION. (a) An interest granted |
|
in a provision of a trust instrument that is revoked under Section |
|
123.052(a)(1) or (2) passes as if the former spouse of the divorced |
|
individual who executed the trust instrument disclaimed the |
|
interest granted in the provision. |
|
(b) An interest granted in a provision of a trust instrument |
|
that is revoked under Section 123.052(a)(3) passes as if the former |
|
spouse died immediately before the dissolution of the marriage. |
|
(Tex. Prob. Code, Sec. 472(b).) |
|
Sec. 123.054. LIABILITY OF CERTAIN PURCHASERS OR RECIPIENTS |
|
OF CERTAIN PAYMENTS, BENEFITS, OR PROPERTY. A bona fide purchaser |
|
of property from a divorced individual's former spouse or a person |
|
who receives from the former spouse a payment, benefit, or property |
|
in partial or full satisfaction of an enforceable obligation: |
|
(1) is not required by this subchapter to return the |
|
payment, benefit, or property; and |
|
(2) is not liable under this subchapter for the amount |
|
of the payment or the value of the property or benefit. (Tex. Prob. |
|
Code, Sec. 473(a).) |
|
Sec. 123.055. LIABILITY OF FORMER SPOUSE FOR CERTAIN |
|
PAYMENTS, BENEFITS, OR PROPERTY. A divorced individual's former |
|
spouse who, not for value, receives a payment, benefit, or property |
|
to which the former spouse is not entitled as a result of Sections |
|
123.052(a) and (b): |
|
(1) shall return the payment, benefit, or property to |
|
the person who is entitled to the payment, benefit, or property |
|
under this subchapter; or |
|
(2) is personally liable to the person described by |
|
Subdivision (1) for the amount of the payment or the value of the |
|
benefit or property received, as applicable. (Tex. Prob. Code, |
|
Sec. 473(b).) |
|
[Sections 123.056-123.100 reserved for expansion] |
|
SUBCHAPTER C. CERTAIN MARRIAGES VOIDABLE AFTER DEATH |
|
Sec. 123.101. PROCEEDING TO VOID MARRIAGE BASED ON MENTAL |
|
CAPACITY PENDING AT TIME OF DEATH. (a) If a proceeding under Chapter |
|
6, Family Code, to declare a marriage void based on the lack of |
|
mental capacity of one of the parties to the marriage is pending on |
|
the date of death of one of those parties, or if a guardianship |
|
proceeding in which a court is requested under Chapter 6, Family |
|
Code, to declare a ward's or proposed ward's marriage void based on |
|
the lack of mental capacity of the ward or proposed ward is pending |
|
on the date of the ward's or proposed ward's death, the court may |
|
make the determination and declare the marriage void after the |
|
decedent's death. |
|
(b) In making a determination described by Subsection (a), |
|
the court shall apply the standards for an annulment prescribed by |
|
Section 6.108(a), Family Code. (Tex. Prob. Code, Sec. 47A(a).) |
|
Sec. 123.102. APPLICATION TO VOID MARRIAGE AFTER DEATH. (a) |
|
Subject to Subsection (c), if a proceeding described by Section |
|
123.101(a) is not pending on the date of a decedent's death, an |
|
interested person may file an application with the court requesting |
|
that the court void the marriage of the decedent if: |
|
(1) on the date of the decedent's death, the decedent |
|
was married; and |
|
(2) that marriage commenced not earlier than three |
|
years before the date of the decedent's death. |
|
(b) The notice applicable to a proceeding for a declaratory |
|
judgment under Chapter 37, Civil Practice and Remedies Code, |
|
applies to a proceeding under Subsection (a). |
|
(c) An application authorized by Subsection (a) may not be |
|
filed after the first anniversary of the date of the decedent's |
|
death. (Tex. Prob. Code, Secs. 47A(b), (c).) |
|
Sec. 123.103. ACTION ON APPLICATION TO VOID MARRIAGE AFTER |
|
DEATH. (a) Except as provided by Subsection (b), in a proceeding |
|
brought under Section 123.102, 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. |
|
(b) A court that makes a finding described by Subsection (a) |
|
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. (Tex. |
|
Prob. Code, Secs. 47A(d), (e).) |
|
Sec. 123.104. EFFECT OF VOIDED MARRIAGE. If the court |
|
declares a decedent's marriage void in a proceeding described by |
|
Section 123.101(a) or brought under Section 123.102, the other |
|
party to the marriage is not considered the decedent's surviving |
|
spouse for purposes of any law of this state. (Tex. Prob. Code, Sec. |
|
47A(f).) |
|
CHAPTER 124. VALUATION AND TAXATION OF ESTATE PROPERTY |
|
|
SUBCHAPTER A. APPORTIONMENT OF TAXES |
|
|
Sec. 124.001. DEFINITIONS |
|
Sec. 124.002. REFERENCES TO INTERNAL REVENUE CODE |
|
Sec. 124.003. APPORTIONMENT DIRECTED BY FEDERAL LAW |
|
Sec. 124.004. EFFECT OF DISCLAIMERS |
|
Sec. |
124.005. GENERAL APPORTIONMENT OF ESTATE TAX; |
|
EXCEPTIONS |
|
Sec. |
124.006. EFFECT OF TAX DEDUCTIONS, EXEMPTIONS, OR |
|
CREDITS |
|
Sec. |
124.007. EXCLUSION OF CERTAIN PROPERTY FROM |
|
APPORTIONMENT |
|
Sec. |
124.008. EXCLUSION OF CERTAIN TEMPORARY |
|
INTERESTS FROM APPORTIONMENT |
|
Sec. 124.009. QUALIFIED REAL PROPERTY |
|
Sec. |
124.010. EFFECT OF EXTENSION OR DEFICIENCY IN |
|
|
|
|
REPRESENTATIVE |
|
Sec. 124.011. APPORTIONMENT OF INTEREST AND PENALTIES |
|
Sec. |
124.012. APPORTIONMENT OF REPRESENTATIVE'S |
|
EXPENSES |
|
Sec. |
124.013. WITHHOLDING OF ESTATE TAX SHARE BY |
|
REPRESENTATIVE |
|
Sec. |
124.014. RECOVERY OF ESTATE TAX SHARE NOT |
|
WITHHELD |
|
Sec. |
124.015. RECOVERY OF UNPAID ESTATE TAX; |
|
REIMBURSEMENT |
|
Sec. |
124.016. TIME TO INITIATE ACTIONS TO RECOVER |
|
UNPAID ESTATE TAX |
|
Sec. |
124.017. TAX OR DEATH DUTY PAYABLE TO ANOTHER |
|
STATE |
|
Sec. 124.018. PAYMENT OF EXPENSES AND ATTORNEY'S FEES |
|
[Sections 124.019-124.050 reserved for expansion] |
|
SUBCHAPTER B. SATISFACTION OF CERTAIN PECUNIARY GIFTS |
|
|
Sec. |
124.051. VALUATION OF PROPERTY DISTRIBUTED IN |
|
KIND IN SATISFACTION OF PECUNIARY GIFT |
|
Sec. |
124.052. SATISFACTION OF MARITAL DEDUCTION |
|
PECUNIARY GIFTS WITH ASSETS IN KIND |
|
CHAPTER 124. VALUATION AND TAXATION OF ESTATE PROPERTY |
|
SUBCHAPTER A. APPORTIONMENT OF TAXES |
|
Sec. 124.001. DEFINITIONS. In this subchapter: |
|
(1) "Court" means: |
|
(A) a court in which proceedings for |
|
administration of an estate are pending or have been completed; or |
|
(B) if no proceedings are pending or have been |
|
completed, a court in which venue lies for the administration of an |
|
estate. |
|
(2) "Estate" means the gross estate of a decedent as |
|
determined for the purpose of estate taxes. |
|
(3) "Estate tax" means any estate, inheritance, or |
|
death tax levied or assessed on the property of a decedent's estate |
|
because of the death of a person and imposed by federal, state, |
|
local, or foreign law, including the federal estate tax and the |
|
inheritance tax imposed by Chapter 211, Tax Code, and including |
|
interest and penalties imposed in addition to those taxes. The term |
|
does not include a tax imposed under Section 2701(d)(1)(A), |
|
Internal Revenue Code of 1986 (26 U.S.C. Section 2701(d)). |
|
(4) "Person" includes a trust, natural person, |
|
partnership, association, joint stock company, corporation, |
|
government, political subdivision, or governmental agency. |
|
(5) "Person interested in the estate" means a person, |
|
or a fiduciary on behalf of that person, who is entitled to receive |
|
or who has received, from a decedent or because of the death of the |
|
decedent, property included in the decedent's estate for purposes |
|
of the estate tax. The term does not include a creditor of the |
|
decedent or of the decedent's estate. |
|
(6) "Representative" means the representative, |
|
executor, or administrator of an estate, or any other person who is |
|
required to pay estate taxes assessed against the estate. (Tex. |
|
Prob. Code, Secs. 322A(a), (s).) |
|
Sec. 124.002. REFERENCES TO INTERNAL REVENUE CODE. A |
|
reference in this subchapter to a section of the Internal Revenue |
|
Code of 1986 refers to that section as it exists at the time in |
|
question. The reference also includes a corresponding section of a |
|
subsequent Internal Revenue Code and, if the referenced section is |
|
renumbered, the section as renumbered. (Tex. Prob. Code, Sec. |
|
322A(x).) |
|
Sec. 124.003. APPORTIONMENT DIRECTED BY FEDERAL LAW. If |
|
federal law directs the apportionment of the federal estate tax, a |
|
similar state tax shall be apportioned in the same manner. (Tex. |
|
Prob. Code, Sec. 322A(l).) |
|
Sec. 124.004. EFFECT OF DISCLAIMERS. This subchapter shall |
|
be applied after giving effect to any disclaimers made in |
|
accordance with Subchapters A, B, C, and D, Chapter 122. (Tex. |
|
Prob. Code, Sec. 322A(p).) |
|
Sec. 124.005. GENERAL APPORTIONMENT OF ESTATE TAX; |
|
EXCEPTIONS. (a) A representative shall charge each person |
|
interested in the estate a portion of the total estate tax assessed |
|
against the estate. The portion charged to each person must |
|
represent the same ratio as the taxable value of that person's |
|
interest in the estate included in determining the amount of the tax |
|
bears to the total taxable value of all the interests of all persons |
|
interested in the estate included in determining the amount of the |
|
tax. In apportioning an estate tax under this subsection, the |
|
representative shall disregard a portion of the tax that is: |
|
(1) apportioned under the law imposing the tax; |
|
(2) otherwise apportioned by federal law; or |
|
(3) apportioned as otherwise provided by this |
|
subchapter. |
|
(b) Subsection (a) does not apply to the extent the |
|
decedent, in a written inter vivos or testamentary instrument |
|
disposing of or creating an interest in property, specifically |
|
directs the manner of apportionment of estate tax or grants a |
|
discretionary power of apportionment to another person. A |
|
direction for the apportionment or nonapportionment of estate tax |
|
is limited to the estate tax on the property passing under the |
|
instrument unless the instrument is a will that provides otherwise. |
|
(c) If directions under Subsection (b) for the |
|
apportionment of an estate tax are provided in two or more |
|
instruments executed by the same person and the directions in those |
|
instruments conflict, the instrument disposing of or creating an |
|
interest in the property to be taxed controls. If directions for |
|
the apportionment of estate tax are provided in two or more |
|
instruments executed by different persons and the directions in |
|
those instruments conflict, the direction of the person in whose |
|
estate the property is included controls. |
|
(d) Subsections (b) and (c) do not: |
|
(1) grant or enlarge the power of a person to apportion |
|
estate tax to property passing under an instrument created by |
|
another person in excess of the estate tax attributable to the |
|
property; or |
|
(2) apply to the extent federal law directs a |
|
different manner of apportionment. (Tex. Prob. Code, Sec. 322A(b).) |
|
Sec. 124.006. EFFECT OF TAX DEDUCTIONS, EXEMPTIONS, OR |
|
CREDITS. (a) A deduction, exemption, or credit allowed by law in |
|
connection with the estate tax inures to a person interested in the |
|
estate as provided by this section. |
|
(b) If the deduction, exemption, or credit is allowed |
|
because of the relationship of the person interested in the estate |
|
to the decedent, or because of the purpose of the gift, the |
|
deduction, exemption, or credit inures to the person having the |
|
relationship or receiving the gift, unless that person's interest |
|
in the estate is subject to a prior present interest that is not |
|
allowable as a deduction. The estate tax apportionable to the |
|
person having the present interest shall be paid from the corpus of |
|
the gift or the interest of the person having the relationship. |
|
(c) A deduction for property of the estate that was |
|
previously taxed and a credit for gift taxes or death taxes of a |
|
foreign country that were paid by the decedent or the decedent's |
|
estate inure proportionally to all persons interested in the estate |
|
who are liable for a share of the estate tax. |
|
(d) A credit for inheritance, succession, or estate taxes, |
|
or for similar taxes applicable to property or interests includable |
|
in the estate, inures to the persons interested in the estate who |
|
are chargeable with payment of a portion of those taxes to the |
|
extent that the credit proportionately reduces those taxes. (Tex. |
|
Prob. Code, Secs. 322A(c), (d), (e), (f).) |
|
Sec. 124.007. EXCLUSION OF CERTAIN PROPERTY FROM |
|
APPORTIONMENT. (a) To the extent that property passing to or in |
|
trust for a surviving spouse or a charitable, public, or similar |
|
gift or devise is not an allowable deduction for purposes of the |
|
estate tax solely because of an inheritance tax or other death tax |
|
imposed on and deductible from the property: |
|
(1) the property is not included in the computation |
|
provided for by Section 124.005; and |
|
(2) no apportionment is made against the property. |
|
(b) The exclusion provided by this section does not apply if |
|
the result would be to deprive the estate of a deduction otherwise |
|
allowable under Section 2053(d), Internal Revenue Code of 1986, for |
|
a state death tax on a transfer for a public, charitable, or |
|
religious use. (Tex. Prob. Code, Sec. 322A(g).) |
|
Sec. 124.008. EXCLUSION OF CERTAIN TEMPORARY INTERESTS |
|
FROM APPORTIONMENT. (a) Except as provided by Section 124.009(c), |
|
the following temporary interests are not subject to apportionment: |
|
(1) an interest in income; |
|
(2) an estate for years or for life; or |
|
(3) another temporary interest in any property or |
|
fund. |
|
(b) The estate tax apportionable to a temporary interest |
|
described by Subsection (a) and the remainder, if any, is |
|
chargeable against the corpus of the property or the funds that are |
|
subject to the temporary interest and remainder. (Tex. Prob. Code, |
|
Sec. 322A(h).) |
|
Sec. 124.009. QUALIFIED REAL PROPERTY. (a) In this |
|
section, "qualified real property" has the meaning assigned by |
|
Section 2032A, Internal Revenue Code of 1986 (26 U.S.C. Section |
|
2032A). |
|
(b) If an election is made under Section 2032A, Internal |
|
Revenue Code of 1986 (26 U.S.C. Section 2032A), the representative |
|
shall apportion estate taxes according to the amount of federal |
|
estate tax that would be payable if the election were not made. The |
|
representative shall apply the amount of the reduction of the |
|
estate tax resulting from the election to reduce the amount of the |
|
estate tax allocated based on the value of the qualified real |
|
property that is the subject of the election. If the amount of that |
|
reduction is greater than the amount of the taxes allocated based on |
|
the value of the qualified real property, the representative shall: |
|
(1) apply the excess amount to the portion of the taxes |
|
allocated for all other property; and |
|
(2) apportion the amount described by Subdivision (1) |
|
under Section 124.005(a). |
|
(c) If additional federal estate tax is imposed under |
|
Section 2032A(c), Internal Revenue Code of 1986 (26 U.S.C. Section |
|
2032A), because of an early disposition or cessation of a qualified |
|
use, the additional tax shall be equitably apportioned among the |
|
persons who have an interest in the portion of the qualified real |
|
property to which the additional tax is attributable in proportion |
|
to their interests. The additional tax is a charge against that |
|
qualified real property. If the qualified real property is split |
|
between one or more life or term interests and remainder interests, |
|
the additional tax shall be apportioned to each person whose action |
|
or cessation of use caused the imposition of additional tax, unless |
|
all persons with an interest in the qualified real property agree in |
|
writing to dispose of the property, in which case the additional tax |
|
shall be apportioned among the remainder interests. (Tex. Prob. |
|
Code, Sec. 322A(i).) |
|
Sec. 124.010. EFFECT OF EXTENSION OR DEFICIENCY IN PAYMENT |
|
OF ESTATE TAXES; LIABILITY OF REPRESENTATIVE. (a) If the date for |
|
the payment of any portion of an estate tax is extended: |
|
(1) the amount of the extended tax shall be |
|
apportioned to the persons who receive the specific property that |
|
gives rise to the extension; and |
|
(2) those persons are entitled to the benefits and |
|
shall bear the burdens of the extension. |
|
(b) Except as provided by Subsection (c), interest on an |
|
extension of estate tax and interest and penalties on a deficiency |
|
shall be apportioned equitably to reflect the benefits and burdens |
|
of the extension or deficiency and of any tax deduction associated |
|
with the interest and penalties. |
|
(c) A representative shall be charged with the amount of any |
|
penalty or interest that is assessed due to delay caused by the |
|
representative's negligence. (Tex. Prob. Code, Secs. 322A(k), |
|
(m).) |
|
Sec. 124.011. APPORTIONMENT OF INTEREST AND PENALTIES. (a) |
|
Interest and penalties assessed against an estate by a taxing |
|
authority shall be apportioned among and charged to the persons |
|
interested in the estate in the manner provided by Section 124.005 |
|
unless, on application by any person interested in the estate, the |
|
court determines that: |
|
(1) the proposed apportionment is not equitable; or |
|
(2) the assessment of interest or penalties was caused |
|
by a breach of fiduciary duty of a representative. |
|
(b) If the apportionment is not equitable, the court may |
|
apportion interest and penalties in an equitable manner. |
|
(c) If the assessment of interest or penalties was caused by |
|
a breach of fiduciary duty of a representative, the court may charge |
|
the representative with the amount of the interest and penalties |
|
assessed attributable to the representative's conduct. (Tex. Prob. |
|
Code, Sec. 322A(q).) |
|
Sec. 124.012. APPORTIONMENT OF REPRESENTATIVE'S EXPENSES. |
|
(a) Expenses reasonably incurred by a representative in |
|
determination of the amount, apportionment, or collection of the |
|
estate tax shall be apportioned among and charged to persons |
|
interested in the estate in the manner provided by Section 124.005 |
|
unless, on application by any person interested in the estate, the |
|
court determines that the proposed apportionment is not equitable. |
|
(b) If the court determines that the proposed apportionment |
|
is not equitable, the court may apportion the expenses in an |
|
equitable manner. (Tex. Prob. Code, Sec. 322A(r).) |
|
Sec. 124.013. WITHHOLDING OF ESTATE TAX SHARE BY |
|
REPRESENTATIVE. A representative who has possession of any estate |
|
property that is distributable to a person interested in the estate |
|
may withhold from that property an amount equal to the person's |
|
apportioned share of the estate tax. (Tex. Prob. Code, Sec. |
|
322A(t).) |
|
Sec. 124.014. RECOVERY OF ESTATE TAX SHARE NOT WITHHELD. |
|
(a) If property includable in an estate does not come into |
|
possession of a representative obligated to pay the estate tax, the |
|
representative shall: |
|
(1) recover from each person interested in the estate |
|
the amount of the estate tax apportioned to the person under this |
|
subchapter; or |
|
(2) assign to persons affected by the tax obligation |
|
the representative's right of recovery. |
|
(b) The obligation to recover a tax under Subsection (a) |
|
does not apply if: |
|
(1) the duty is waived by the parties affected by the |
|
tax obligation or by the instrument under which the representative |
|
derives powers; or |
|
(2) in the reasonable judgment of the representative, |
|
proceeding to recover the tax is not cost-effective. (Tex. Prob. |
|
Code, Sec. 322A(n).) |
|
Sec. 124.015. RECOVERY OF UNPAID ESTATE TAX; REIMBURSEMENT. |
|
(a) A representative shall recover from any person interested in |
|
the estate the unpaid amount of the estate tax apportioned and |
|
charged to the person under this subchapter unless the |
|
representative determines in good faith that an attempt to recover |
|
the amount would be economically impractical. |
|
(b) A representative who cannot collect from a person |
|
interested in the estate an unpaid amount of estate tax apportioned |
|
to that person shall apportion the amount not collected in the |
|
manner provided by Section 124.005(a) among the other persons |
|
interested in the estate who are subject to apportionment. |
|
(c) A person who is charged with or who pays an apportioned |
|
amount under Subsection (b) has a right of reimbursement for that |
|
amount from the person who failed to pay the tax. The |
|
representative may enforce the right of reimbursement, or the |
|
person who is charged with or who pays an apportioned amount under |
|
Subsection (b) may enforce the right of reimbursement directly by |
|
an assignment from the representative. A person assigned the right |
|
under this subsection is subrogated to the rights of the |
|
representative. |
|
(d) A representative who has a right of reimbursement may |
|
petition a court to determine the right of reimbursement. (Tex. |
|
Prob. Code, Secs. 322A(o), (u).) |
|
Sec. 124.016. TIME TO INITIATE ACTIONS TO RECOVER UNPAID |
|
ESTATE TAX. (a) A representative required to recover unpaid |
|
amounts of estate tax apportioned to persons interested in the |
|
estate under this subchapter may not be required to initiate the |
|
necessary actions until the expiration of the 90th day after the |
|
date of the final determination by the Internal Revenue Service of |
|
the amount of the estate tax. |
|
(b) A representative who initiates an action under this |
|
subchapter within a reasonable time after the expiration of the |
|
90-day period is not subject to any liability or surcharge because a |
|
portion of the estate tax apportioned to a person interested in the |
|
estate was collectible during a period after the death of the |
|
decedent but thereafter became uncollectible. (Tex. Prob. Code, |
|
Sec. 322A(v).) |
|
Sec. 124.017. TAX OR DEATH DUTY PAYABLE TO ANOTHER STATE. |
|
(a) A representative acting in another state may initiate an action |
|
in a court of this state to recover from a person interested in the |
|
estate who is domiciled in this state or owns property in this state |
|
subject to attachment or execution, a proportionate amount of: |
|
(1) the federal estate tax; |
|
(2) an estate tax payable to another state; or |
|
(3) a death duty due by a decedent's estate to another |
|
state. |
|
(b) In the action, a determination of apportionment by the |
|
court having jurisdiction of the administration of the decedent's |
|
estate in the other state is prima facie correct. |
|
(c) This section applies only if the state in which the |
|
determination of apportionment was made provides a substantially |
|
similar remedy. (Tex. Prob. Code, Sec. 322A(w).) |
|
Sec. 124.018. PAYMENT OF EXPENSES AND ATTORNEY'S FEES. The |
|
court shall award necessary expenses, including reasonable |
|
attorney's fees, to the prevailing party in an action initiated by a |
|
person for the collection of estate taxes from a person interested |
|
in the estate to whom estate taxes were apportioned and charged |
|
under Section 124.005. (Tex. Prob. Code, Sec. 322A(y).) |
|
[Sections 124.019-124.050 reserved for expansion] |
|
SUBCHAPTER B. SATISFACTION OF CERTAIN PECUNIARY GIFTS |
|
Sec. 124.051. VALUATION OF PROPERTY DISTRIBUTED IN KIND IN |
|
SATISFACTION OF PECUNIARY GIFT. Unless the governing instrument |
|
provides otherwise, if a will or trust contains a pecuniary devise |
|
or transfer that may be satisfied by distributing assets in kind and |
|
the executor, administrator, or trustee determines to fund the |
|
devise or transfer by distributing assets in kind, the property |
|
shall be valued, for the purpose of funding the devise or transfer, |
|
at the value of the property on the date or dates of distribution. |
|
(Tex. Prob. Code, Sec. 378A(b).) |
|
Sec. 124.052. SATISFACTION OF MARITAL DEDUCTION PECUNIARY |
|
GIFTS WITH ASSETS IN KIND. (a) This section applies to an |
|
executor, administrator, or trustee authorized under the will or |
|
trust of a decedent to satisfy a pecuniary devise or transfer in |
|
trust in kind with assets at their value for federal estate tax |
|
purposes, in satisfaction of a gift intended to qualify, or that |
|
otherwise would qualify, for a United States estate tax marital |
|
deduction. |
|
(b) Unless the governing instrument provides otherwise, an |
|
executor, administrator, or trustee, in order to implement a devise |
|
or transfer described by Subsection (a), shall distribute assets, |
|
including cash, fairly representative of appreciation or |
|
depreciation in the value of all property available for |
|
distribution in satisfaction of the devise or transfer. (Tex. |
|
Prob. Code, Sec. 378A(a).) |
|
[Chapters 125-150 reserved for expansion] |
|
SUBTITLE D. PROCEEDINGS BEFORE ADMINISTRATION OF ESTATE |
|
CHAPTER 151. |
EXAMINATION OF DOCUMENTS AND SAFE DEPOSIT BOXES |
|
Sec. |
151.001. EXAMINATION OF DOCUMENTS OR SAFE DEPOSIT |
|
BOX WITH COURT ORDER |
|
Sec. 151.002. DELIVERY OF DOCUMENT WITH COURT ORDER |
|
Sec. |
151.003. EXAMINATION OF DOCUMENT OR SAFE DEPOSIT |
|
BOX WITHOUT COURT ORDER |
|
Sec. 151.004. DELIVERY OF DOCUMENT WITHOUT COURT ORDER |
|
Sec. |
151.005. RESTRICTION ON REMOVAL OF CONTENTS OF |
|
SAFE DEPOSIT BOX |
|
CHAPTER 151. EXAMINATION OF DOCUMENTS AND SAFE DEPOSIT BOXES |
|
Sec. 151.001. EXAMINATION OF DOCUMENTS OR SAFE DEPOSIT BOX |
|
WITH COURT ORDER. (a) A judge of a court that has probate |
|
jurisdiction of a decedent's estate may order a person to permit a |
|
court representative named in the order to examine a decedent's |
|
documents or safe deposit box if it is shown to the judge that: |
|
(1) the person may possess or control the documents or |
|
that the person leased the safe deposit box to the decedent; and |
|
(2) the documents or safe deposit box may contain: |
|
(A) a will of the decedent; |
|
(B) a deed to a burial plot in which the decedent |
|
is to be buried; or |
|
(C) an insurance policy issued in the decedent's |
|
name and payable to a beneficiary named in the policy. |
|
(b) The court representative shall examine the decedent's |
|
documents or safe deposit box in the presence of: |
|
(1) the judge ordering the examination or an agent of |
|
the judge; and |
|
(2) the person who has possession or control of the |
|
documents or who leased the safe deposit box or, if that person is a |
|
corporation, an officer of the corporation or an agent of an |
|
officer. (Tex. Prob. Code, Sec. 36B.) |
|
Sec. 151.002. DELIVERY OF DOCUMENT WITH COURT ORDER. (a) A |
|
judge who orders an examination of a decedent's documents or safe |
|
deposit box under Section 151.001 may order the person who |
|
possesses or controls the documents or who leases the safe deposit |
|
box to permit the court representative to take possession of a |
|
document described by Section 151.001(a)(2). |
|
(b) The court representative shall deliver: |
|
(1) a will to the clerk of a court that: |
|
(A) has probate jurisdiction; and |
|
(B) is located in the same county as the court of |
|
the judge who ordered the examination under Section 151.001; |
|
(2) a burial plot deed to the person designated by the |
|
judge in the order for the examination; or |
|
(3) an insurance policy to a beneficiary named in the |
|
policy. |
|
(c) A court clerk to whom a will is delivered under |
|
Subsection (b) shall issue a receipt for the will to the court |
|
representative. (Tex. Prob. Code, Sec. 36C.) |
|
Sec. 151.003. EXAMINATION OF DOCUMENT OR SAFE DEPOSIT BOX |
|
WITHOUT COURT ORDER. (a) A person who possesses or controls a |
|
document delivered by a decedent for safekeeping or who leases a |
|
safe deposit box to a decedent may permit examination of the |
|
document or the contents of the safe deposit box by: |
|
(1) the decedent's spouse; |
|
(2) a parent of the decedent; |
|
(3) a descendant of the decedent who is at least 18 |
|
years of age; or |
|
(4) a person named as executor of the decedent's estate |
|
in a copy of a document that the person has and that appears to be a |
|
will of the decedent. |
|
(b) An examination under Subsection (a) shall be conducted |
|
in the presence of the person who possesses or controls the document |
|
or who leases the safe deposit box or, if the person is a |
|
corporation, an officer of the corporation. (Tex. Prob. Code, Sec. |
|
36D.) |
|
Sec. 151.004. DELIVERY OF DOCUMENT WITHOUT COURT ORDER. |
|
(a) Subject to Subsection (c), a person who permits an examination |
|
of a decedent's document or safe deposit box under Section 151.003 |
|
may deliver: |
|
(1) a document appearing to be the decedent's will to: |
|
(A) the clerk of a court that: |
|
(i) has probate jurisdiction; and |
|
(ii) is located in the county in which the |
|
decedent resided; or |
|
(B) a person named in the document as an executor |
|
of the decedent's estate; |
|
(2) a document appearing to be a deed to a burial plot |
|
in which the decedent is to be buried, or appearing to give burial |
|
instructions, to the person conducting the examination; or |
|
(3) a document appearing to be an insurance policy on |
|
the decedent's life to a beneficiary named in the policy. |
|
(b) A person who has leased a safe deposit box to the |
|
decedent shall keep a copy of a document delivered by the person |
|
under Subsection (a)(1) until the fourth anniversary of the date of |
|
delivery. |
|
(c) A person may not deliver a document under Subsection (a) |
|
unless the person examining the document: |
|
(1) requests delivery of the document; and |
|
(2) issues a receipt for the document to the person |
|
delivering the document. (Tex. Prob. Code, Sec. 36E.) |
|
Sec. 151.005. RESTRICTION ON REMOVAL OF CONTENTS OF SAFE |
|
DEPOSIT BOX. A person may not remove the contents of a decedent's |
|
safe deposit box except as provided by Section 151.002, Section |
|
151.004, or another law. (Tex. Prob. Code, Sec. 36F.) |
|
CHAPTER 152. EMERGENCY INTERVENTION |
|
|
SUBCHAPTER A. EMERGENCY INTERVENTION APPLICATION |
|
|
Sec. 152.001. APPLICATION AUTHORIZED |
|
Sec. 152.002. CONTENTS OF APPLICATION |
|
Sec. |
152.003. ADDITIONAL CONTENTS OF APPLICATION: |
|
|
|
|
FUNERAL AND REMAINS |
|
Sec. 152.004. TIME AND PLACE OF FILING |
|
[Sections 152.005-152.050 reserved for expansion] |
|
SUBCHAPTER B. ORDER FOR EMERGENCY INTERVENTION |
|
|
Sec. |
152.051. ISSUANCE OF ORDER REGARDING FUNERAL AND |
|
BURIAL EXPENSES |
|
Sec. |
152.052. ISSUANCE OF ORDER REGARDING ACCESS TO |
|
CERTAIN PERSONAL PROPERTY |
|
Sec. 152.053. DURATION OF ORDER |
|
Sec. 152.054. CERTIFIED COPIES OF ORDER |
|
Sec. |
152.055. LIABILITY OF CERTAIN PERSONS IN |
|
CONNECTION WITH ORDER |
|
[Sections 152.056-152.100 reserved for expansion] |
|
SUBCHAPTER C. |
LIMITATION ON RIGHT OF DECEDENT'S SURVIVING SPOUSE TO CONTROL DECEDENT'S BURIAL OR CREMATION |
|
TO CONTROL DECEDENT'S BURIAL OR CREMATION |
|
|
Sec. 152.101. APPLICATION AUTHORIZED |
|
Sec. 152.102. HEARING; ISSUANCE OF ORDER |
|
CHAPTER 152. EMERGENCY INTERVENTION |
|
SUBCHAPTER A. EMERGENCY INTERVENTION APPLICATION |
|
Sec. 152.001. APPLICATION AUTHORIZED. (a) Subject to |
|
Subsection (b), a person qualified to serve as an administrator |
|
under Section 304.001 may file an application requesting emergency |
|
intervention by a court exercising probate jurisdiction to provide |
|
for: |
|
(1) the payment of the decedent's funeral and burial |
|
expenses; or |
|
(2) the protection and storage of personal property |
|
owned by the decedent that, on the date of the decedent's death, was |
|
located in accommodations rented by the decedent. |
|
(b) An applicant may file an application under this section |
|
only if: |
|
(1) an application or affidavit has not been filed and |
|
is not pending under Section 145, 256.052, 256.054, or 301.052 or |
|
Chapter 205; and |
|
(2) the applicant needs to: |
|
(A) obtain funds for the payment of the |
|
decedent's funeral and burial expenses; or |
|
(B) gain access to accommodations rented by the |
|
decedent that contain the decedent's personal property and the |
|
applicant has been denied access to those accommodations. (Tex. |
|
Prob. Code, Secs. 108 (part), 109, 110.) |
|
Sec. 152.002. CONTENTS OF APPLICATION. (a) An emergency |
|
intervention application must be sworn and must contain: |
|
(1) the applicant's name, address, and interest; |
|
(2) facts showing an immediate necessity for the |
|
issuance of an emergency intervention order under Subchapter B; |
|
(3) the decedent's date of death, place of death, and |
|
residential address on the date of death; |
|
(4) the name and address of the funeral home holding |
|
the decedent's remains; and |
|
(5) the names of any known or ascertainable heirs and |
|
devisees of the decedent. |
|
(b) In addition to the information required under |
|
Subsection (a), if emergency intervention is requested to obtain |
|
funds needed for the payment of the decedent's funeral and burial |
|
expenses, the application must also contain: |
|
(1) the reason any known or ascertainable heirs and |
|
devisees of the decedent: |
|
(A) cannot be contacted; or |
|
(B) have refused to assist in the decedent's |
|
burial; |
|
(2) a description of necessary funeral and burial |
|
procedures and a statement from the funeral home that contains a |
|
detailed and itemized description of the cost of those procedures; |
|
and |
|
(3) the name and address of an individual, entity, or |
|
financial institution, including an employer, in possession of any |
|
funds of or due to the decedent, and related account numbers and |
|
balances, if known by the applicant. |
|
(c) In addition to the information required under |
|
Subsection (a), if emergency intervention is requested to gain |
|
access to accommodations rented by a decedent that at the time of |
|
the decedent's death contain the decedent's personal property, the |
|
application must also contain: |
|
(1) the reason any known or ascertainable heirs and |
|
devisees of the decedent: |
|
(A) cannot be contacted; or |
|
(B) have refused to assist in the protection of |
|
the decedent's personal property; |
|
(2) the type and location of the decedent's personal |
|
property and the name of the person in possession of the property; |
|
and |
|
(3) the name and address of the owner or manager of the |
|
accommodations and a statement regarding whether access to the |
|
accommodations is necessary. (Tex. Prob. Code, Secs. 111(a), 112.) |
|
Sec. 152.003. ADDITIONAL CONTENTS OF APPLICATION: |
|
INSTRUCTIONS REGARDING DECEDENT'S FUNERAL AND REMAINS. (a) In |
|
addition to the information required under Section 152.002, if |
|
emergency intervention is requested to obtain funds needed for the |
|
payment of a decedent's funeral and burial expenses, the |
|
application must also state whether there are any written |
|
instructions from the decedent relating to the type and manner of |
|
funeral or burial preferred by the decedent. The applicant shall: |
|
(1) attach the instructions, if available, to the |
|
application; and |
|
(2) fully comply with the instructions. |
|
(b) If written instructions do not exist, the applicant may |
|
not permit the decedent's remains to be cremated unless the |
|
applicant obtains the court's permission to cremate the remains. |
|
(Tex. Prob. Code, Sec. 111(b).) |
|
Sec. 152.004. TIME AND PLACE OF FILING. An emergency |
|
intervention application must be filed: |
|
(1) with the court clerk in the county in which: |
|
(A) the decedent was domiciled; or |
|
(B) the accommodations rented by the decedent |
|
that contain the decedent's personal property are located; and |
|
(2) not earlier than the third day after the date of |
|
the decedent's death and not later than the 90th day after the date |
|
of the decedent's death. (Tex. Prob. Code, Sec. 108 (part).) |
|
[Sections 152.005-152.050 reserved for expansion] |
|
SUBCHAPTER B. ORDER FOR EMERGENCY INTERVENTION |
|
Sec. 152.051. ISSUANCE OF ORDER REGARDING FUNERAL AND |
|
BURIAL EXPENSES. If on review of an application filed under Section |
|
152.001 the court determines that emergency intervention is |
|
necessary to obtain funds needed for the payment of a decedent's |
|
funeral and burial expenses, the court may order funds of the |
|
decedent that are being held by an individual, an employer, or a |
|
financial institution to be paid directly to a funeral home only |
|
for: |
|
(1) reasonable and necessary attorney's fees for the |
|
attorney who obtained the order; |
|
(2) court costs for obtaining the order; and |
|
(3) funeral and burial expenses not to exceed $5,000 |
|
as ordered by the court to provide the decedent with a reasonable, |
|
dignified, and appropriate funeral and burial. (Tex. Prob. Code, |
|
Sec. 113(a).) |
|
Sec. 152.052. ISSUANCE OF ORDER REGARDING ACCESS TO CERTAIN |
|
PERSONAL PROPERTY. If on review of an application filed under |
|
Section 152.001 the court determines that emergency intervention is |
|
necessary to gain access to accommodations rented by the decedent |
|
that, at the time of the decedent's death, contain the decedent's |
|
personal property, the court may order one or more of the following: |
|
(1) that the owner or agent of the accommodations |
|
shall grant the applicant access to the accommodations at a |
|
reasonable time and in the presence of the owner or agent; |
|
(2) that the applicant and owner or agent of the |
|
accommodations shall jointly prepare and file with the court a list |
|
that generally describes the decedent's property found at the |
|
premises; |
|
(3) that the applicant or the owner or agent of the |
|
accommodations may remove and store the decedent's property at |
|
another location until claimed by the decedent's heirs; |
|
(4) that the applicant has only the powers that are |
|
specifically stated in the order and that are necessary to protect |
|
the decedent's property that is the subject of the application; or |
|
(5) that funds of the decedent held by an individual, |
|
an employer, or a financial institution be paid to the applicant for |
|
reasonable and necessary attorney's fees and court costs for |
|
obtaining the order. (Tex. Prob. Code, Sec. 113(b).) |
|
Sec. 152.053. DURATION OF ORDER. The authority of an |
|
applicant under an emergency intervention order expires on the |
|
earlier of: |
|
(1) the 90th day after the date the order is issued; or |
|
(2) the date a personal representative of the |
|
decedent's estate qualifies. (Tex. Prob. Code, Sec. 114(a).) |
|
Sec. 152.054. CERTIFIED COPIES OF ORDER. The court clerk |
|
may issue certified copies of an emergency intervention order on |
|
request of the applicant only until the earlier of: |
|
(1) the 90th day after the date the order is signed; or |
|
(2) the date a personal representative of the |
|
decedent's estate qualifies. (Tex. Prob. Code, Sec. 113(c).) |
|
Sec. 152.055. LIABILITY OF CERTAIN PERSONS IN CONNECTION |
|
WITH ORDER. (a) A person who is provided a certified copy of an |
|
emergency intervention order within the period prescribed by |
|
Section 152.054 is not personally liable for an action taken by the |
|
person in accordance with and in reliance on the order. |
|
(b) If a personal representative has not been appointed when |
|
an emergency intervention order issued under Section 152.052 |
|
expires, a person in possession of the decedent's personal property |
|
that is the subject of the order, without incurring civil |
|
liability, may: |
|
(1) release the property to the decedent's heirs; or |
|
(2) dispose of the property under Subchapter C, |
|
Chapter 54, Property Code, or Section 7.209 or 7.210, Business & |
|
Commerce Code. (Tex. Prob. Code, Secs. 113(d), 114(b).) |
|
[Sections 152.056-152.100 reserved for expansion] |
|
SUBCHAPTER C. LIMITATION ON RIGHT OF DECEDENT'S SURVIVING SPOUSE |
|
TO CONTROL DECEDENT'S BURIAL OR CREMATION |
|
Sec. 152.101. APPLICATION AUTHORIZED. (a) The executor of |
|
a decedent's will or the decedent's next of kin may file an |
|
application for an order limiting the right of the decedent's |
|
surviving spouse to control the decedent's burial or cremation. |
|
(b) For purposes of Subsection (a), the decedent's next of |
|
kin: |
|
(1) is determined in accordance with order of descent, |
|
with the person nearest in order of descent first, and so on; and |
|
(2) includes the decedent's descendants who legally |
|
adopted the decedent or who have been legally adopted by the |
|
decedent. |
|
(c) An application under this section must be under oath and |
|
must establish: |
|
(1) whether the decedent died intestate or testate; |
|
(2) that the surviving spouse is alleged to be a |
|
principal or accomplice in a wilful act that resulted in the |
|
decedent's death; and |
|
(3) that good cause exists to limit the surviving |
|
spouse's right to control the decedent's burial or cremation. (Tex. |
|
Prob. Code, Secs. 115(a), (b).) |
|
Sec. 152.102. HEARING; ISSUANCE OF ORDER. (a) If the court |
|
finds that there is good cause to believe that the decedent's |
|
surviving spouse is the principal or an accomplice in a wilful act |
|
that resulted in the decedent's death, the court may, after notice |
|
and a hearing, limit the surviving spouse's right to control the |
|
decedent's burial or cremation. |
|
(b) Subsection (a) applies: |
|
(1) without regard to whether the decedent died |
|
intestate or testate; and |
|
(2) regardless of whether the surviving spouse is |
|
designated by the decedent's will as the executor of the decedent's |
|
estate. |
|
(c) If the court limits the surviving spouse's right of |
|
control as provided by Subsection (a), the court shall designate |
|
and authorize a person to make burial or cremation arrangements. |
|
(Tex. Prob. Code, Secs. 115(c), (d).) |
|
[Chapters 153-200 reserved for expansion] |
|
SUBTITLE E. INTESTATE SUCCESSION |
|
CHAPTER 201. |
DESCENT AND DISTRIBUTION |
|
SUBCHAPTER A. INTESTATE SUCCESSION |
|
|
Sec. |
201.001. ESTATE OF AN INTESTATE NOT LEAVING |
|
SPOUSE |
|
Sec. 201.002. SEPARATE ESTATE OF AN INTESTATE |
|
Sec. 201.003. COMMUNITY ESTATE OF AN INTESTATE |
|
[Sections 201.004-201.050 reserved for expansion] |
|
SUBCHAPTER B. MATTERS AFFECTING INHERITANCE |
|
|
Sec. 201.051. MATERNAL INHERITANCE |
|
Sec. 201.052. PATERNAL INHERITANCE |
|
Sec. |
201.053. EFFECT OF RELIANCE ON AFFIDAVIT OF |
|
HEIRSHIP |
|
Sec. 201.054. ADOPTED CHILD |
|
Sec. 201.055. ISSUE OF VOID OR VOIDABLE MARRIAGE |
|
Sec. 201.056. PERSONS NOT IN BEING |
|
Sec. |
201.057. COLLATERAL KINDRED OF WHOLE AND HALF |
|
BLOOD |
|
Sec. 201.058. CONVICTED PERSONS |
|
Sec. 201.059. PERSON WHO DIES BY CASUALTY |
|
Sec. 201.060. ALIENAGE |
|
Sec. 201.061. ESTATE OF PERSON WHO DIES BY SUICIDE |
|
Sec. |
201.062. TREATMENT OF CERTAIN PARENT-CHILD |
|
RELATIONSHIPS |
|
[Sections 201.063-201.100 reserved for expansion] |
|
SUBCHAPTER C. DISTRIBUTION TO HEIRS |
|
|
Sec. |
201.101. DETERMINATION OF PER CAPITA WITH |
|
REPRESENTATION DISTRIBUTION |
|
Sec. |
201.102. NO DISTINCTION BASED ON PROPERTY'S |
|
SOURCE |
|
Sec. 201.103. TREATMENT OF INTESTATE'S ESTATE |
|
[Sections 201.104-201.150 reserved for expansion] |
|
SUBCHAPTER D. ADVANCEMENTS |
|
|
Sec. |
201.151. DETERMINATION OF ADVANCEMENT; DATE OF |
|
VALUATION |
|
Sec. 201.152. SURVIVAL OF RECIPIENT REQUIRED |
|
CHAPTER 201. DESCENT AND DISTRIBUTION |
|
SUBCHAPTER A. INTESTATE SUCCESSION |
|
Sec. 201.001. ESTATE OF AN INTESTATE NOT LEAVING SPOUSE. |
|
(a) If a person who dies intestate does not leave a spouse, the |
|
estate to which the person had title descends and passes in |
|
parcenary to the person's kindred in the order provided by this |
|
section. |
|
(b) The person's estate descends and passes to the person's |
|
children and the children's descendants. |
|
(c) If no child or child's descendant survives the person, |
|
the person's estate descends and passes in equal portions to the |
|
person's father and mother. |
|
(d) If only the person's father or mother survives the |
|
person, the person's estate shall: |
|
(1) be divided into two equal portions, with: |
|
(A) one portion passing to the surviving parent; |
|
and |
|
(B) one portion passing to the person's siblings |
|
and the siblings' descendants; or |
|
(2) be inherited entirely by the surviving parent if |
|
there is no sibling of the person or siblings' descendants. |
|
(e) If neither the person's father nor mother survives the |
|
person, the person's entire estate passes to the person's siblings |
|
and the siblings' descendants. |
|
(f) If none of the kindred described by Subsections (b)-(e) |
|
survive the person, the person's estate shall be divided into two |
|
moieties, with: |
|
(1) one moiety passing to the person's paternal |
|
kindred as provided by Subsection (g); and |
|
(2) one moiety passing to the person's maternal |
|
kindred as provided by Subsection (h). |
|
(g) The moiety passing to the person's paternal kindred |
|
passes in the following order: |
|
(1) if both paternal grandparents survive the person, |
|
equal portions pass to the person's paternal grandfather and |
|
grandmother; |
|
(2) if only the person's paternal grandfather or |
|
grandmother survives the person, the person's estate shall: |
|
(A) be divided into two equal portions, with: |
|
(i) one portion passing to the surviving |
|
grandparent; and |
|
(ii) one portion passing to the descendants |
|
of the deceased grandparent; or |
|
(B) pass entirely to the surviving grandparent if |
|
no descendant of the deceased grandparent survives the person; and |
|
(3) if neither the person's paternal grandfather nor |
|
grandmother survives the person, the moiety passing to the |
|
decedent's paternal kindred passes to the descendants of the |
|
person's paternal grandfather and grandmother, and so on without |
|
end, passing in like manner to the nearest lineal ancestors and |
|
their descendants. |
|
(h) The moiety passing to the person's maternal kindred |
|
passes in the same order and manner as the other moiety passes to |
|
the decedent's paternal kindred under Subsection (g). (Tex. Prob. |
|
Code, Sec. 38(a).) |
|
Sec. 201.002. SEPARATE ESTATE OF AN INTESTATE. (a) If a |
|
person who dies intestate leaves a surviving spouse, the estate, |
|
other than a community estate, to which the person had title |
|
descends and passes as provided by this section. |
|
(b) If the person has one or more children or a descendant of |
|
a child: |
|
(1) the surviving spouse takes one-third of the |
|
personal estate; |
|
(2) two-thirds of the personal estate descends to the |
|
person's child or children, and the descendants of a child or |
|
children; and |
|
(3) the surviving spouse is entitled to a life estate |
|
in one-third of the person's land, with the remainder descending to |
|
the person's child or children and the descendants of a child or |
|
children. |
|
(c) Except as provided by Subsection (d), if the person has |
|
no child and no descendant of a child: |
|
(1) the surviving spouse is entitled to all of the |
|
personal estate; |
|
(2) the surviving spouse is entitled to one-half of |
|
the person's land without a remainder to any person; and |
|
(3) one-half of the person's land passes and is |
|
inherited according to the rules of descent and distribution. |
|
(d) If the person described by Subsection (c) does not leave |
|
a surviving parent or one or more surviving siblings, or their |
|
descendants, the surviving spouse is entitled to the entire estate. |
|
(Tex. Prob. Code, Sec. 38(b).) |
|
Sec. 201.003. COMMUNITY ESTATE OF AN INTESTATE. (a) If a |
|
person who dies intestate leaves a surviving spouse, the community |
|
estate of the deceased spouse passes as provided by this section. |
|
(b) The community estate of the deceased spouse passes to |
|
the surviving spouse if: |
|
(1) no child or other descendant of the deceased |
|
spouse survives the deceased spouse; or |
|
(2) all of the surviving children and descendants of |
|
the deceased spouse are also children or descendants of the |
|
surviving spouse. |
|
(c) If the deceased spouse is survived by a child or other |
|
descendant who is not also a child or descendant of the surviving |
|
spouse, one-half of the community estate is retained by the |
|
surviving spouse and the other one-half passes to the deceased |
|
spouse's children or descendants. The descendants inherit only the |
|
portion of that estate to which they would be entitled under Section |
|
201.101. In every case, the community estate passes charged with |
|
the debts against the community estate. (Tex. Prob. Code, Sec. 45.) |
|
[Sections 201.004-201.050 reserved for expansion] |
|
SUBCHAPTER B. MATTERS AFFECTING INHERITANCE |
|
Sec. 201.051. MATERNAL INHERITANCE. For purposes of |
|
inheritance, a child is the child of the child's biological or |
|
adopted mother, and the child and the child's issue shall inherit |
|
from the child's mother and the child's maternal kindred, both |
|
descendants, ascendants, and collateral kindred in all degrees, and |
|
they may inherit from the child and the child's issue. (Tex. Prob. |
|
Code, Sec. 42(a).) |
|
Sec. 201.052. PATERNAL INHERITANCE. (a) For purposes of |
|
inheritance, a child is the child of the child's biological father |
|
if: |
|
(1) the child is born under circumstances described by |
|
Section 160.201, Family Code; |
|
(2) the child is adjudicated to be the child of the |
|
father by court decree under Chapter 160, Family Code; |
|
(3) the child was adopted by the child's father; or |
|
(4) the father executed an acknowledgment of paternity |
|
under Subchapter D, Chapter 160, Family Code, or a similar |
|
statement properly executed in another jurisdiction. |
|
(b) A child described by Subsection (a) and the child's |
|
issue shall inherit from the child's father and the child's paternal |
|
kindred, both descendants, ascendants, and collateral kindred in |
|
all degrees, and they may inherit from the child and the child's |
|
issue. |
|
(c) A person may petition the probate court for a |
|
determination of right of inheritance from a decedent if the |
|
person: |
|
(1) claims to be a biological child of the decedent and |
|
is not otherwise presumed to be a child of the decedent; or |
|
(2) claims inheritance through a biological child of |
|
the decedent who is not otherwise presumed to be a child of the |
|
decedent. |
|
(d) If under Subsection (c) the court finds by clear and |
|
convincing evidence that the purported father was the biological |
|
father of the child: |
|
(1) the child is treated as any other child of the |
|
decedent for purposes of inheritance; and |
|
(2) the child and the child's issue may inherit from |
|
the child's paternal kindred, both descendants, ascendants, and |
|
collateral kindred in all degrees, and they may inherit from the |
|
child and the child's issue. |
|
(e) This section does not permit inheritance by a purported |
|
father of a child, recognized or not, if the purported father's |
|
parental rights have been terminated. (Tex. Prob. Code, Sec. |
|
42(b)(1).) |
|
Sec. 201.053. EFFECT OF RELIANCE ON AFFIDAVIT OF HEIRSHIP. |
|
(a) A person who purchases for valuable consideration any interest |
|
in property of the heirs of a decedent acquires good title to the |
|
interest that the person would have received, as purchaser, in the |
|
absence of a claim of the child described by Subdivision (1), if the |
|
person: |
|
(1) in good faith relies on the declarations in an |
|
affidavit of heirship that does not include a child who at the time |
|
of the sale or contract of sale of the property: |
|
(A) is not a presumed child of the decedent; and |
|
(B) has not under a final court decree or |
|
judgment been found to be entitled to treatment under Section |
|
201.052 as a child of the decedent; and |
|
(2) is without knowledge of the claim of the child |
|
described by Subdivision (1). |
|
(b) Subsection (a) does not affect any liability of the |
|
heirs for the proceeds of a sale described by Subsection (a) to the |
|
child who was not included in the affidavit of heirship. (Tex. |
|
Prob. Code, Sec. 42(b)(2).) |
|
Sec. 201.054. ADOPTED CHILD. (a) For purposes of |
|
inheritance under the laws of descent and distribution, an adopted |
|
child is regarded as the child of the adoptive parent or parents, |
|
and the adopted child and the adopted child's descendants inherit |
|
from and through the adoptive parent or parents and their kindred as |
|
if the adopted child were the natural child of the adoptive parent |
|
or parents. The adoptive parent or parents and their kindred |
|
inherit from and through the adopted child as if the adopted child |
|
were the natural child of the adoptive parent or parents. |
|
(b) The natural parent or parents of an adopted child and |
|
the kindred of the natural parent or parents may not inherit from or |
|
through the adopted child, but the adopted child inherits from and |
|
through the child's natural parent or parents, except as provided |
|
by Section 162.507(c), Family Code. |
|
(c) This section does not prevent an adoptive parent from |
|
disposing of the parent's property by will according to law. |
|
(d) This section does not diminish the rights of an adopted |
|
child under the laws of descent and distribution or otherwise that |
|
the adopted child acquired by virtue of inclusion in the definition |
|
of "child" under Section 22.004. (Tex. Prob. Code, Sec. 40.) |
|
Sec. 201.055. ISSUE OF VOID OR VOIDABLE MARRIAGE. The issue |
|
of a marriage declared void or voided by annulment shall be treated |
|
in the same manner as the issue of a valid marriage. (Tex. Prob. |
|
Code, Sec. 42(d).) |
|
Sec. 201.056. PERSONS NOT IN BEING. No right of inheritance |
|
accrues to any person other than to a child or lineal descendant of |
|
an intestate, unless the person is in being and capable in law to |
|
take as an heir at the time of the intestate's death. (Tex. Prob. |
|
Code, Sec. 41(a).) |
|
Sec. 201.057. COLLATERAL KINDRED OF WHOLE AND HALF BLOOD. |
|
If the inheritance from an intestate passes to the collateral |
|
kindred of the intestate and part of the collateral kindred are of |
|
whole blood and the other part are of half blood of the intestate, |
|
each of the collateral kindred who is of half blood inherits only |
|
half as much as that inherited by each of the collateral kindred who |
|
is of whole blood. If all of the collateral kindred are of half |
|
blood of the intestate, each of the collateral kindred inherits a |
|
whole portion. (Tex. Prob. Code, Sec. 41(b).) |
|
Sec. 201.058. CONVICTED PERSONS. (a) No conviction shall |
|
work corruption of blood or forfeiture of estate except as provided |
|
by Subsection (b). |
|
(b) If a beneficiary of a life insurance policy or contract |
|
is convicted and sentenced as a principal or accomplice in wilfully |
|
bringing about the death of the insured, the proceeds of the |
|
insurance policy or contract shall be paid in the manner provided by |
|
the Insurance Code. (Tex. Prob. Code, Sec. 41(d) (part).) |
|
Sec. 201.059. PERSON WHO DIES BY CASUALTY. Death by |
|
casualty does not result in forfeiture of estate. (Tex. Prob. Code, |
|
Sec. 41(d) (part).) |
|
Sec. 201.060. ALIENAGE. A person is not disqualified to |
|
take as an heir because the person, or another person through whom |
|
the person claims, is or has been an alien. (Tex. Prob. Code, Sec. |
|
41(c).) |
|
Sec. 201.061. ESTATE OF PERSON WHO DIES BY SUICIDE. The |
|
estate of a person who commits suicide descends or vests as if the |
|
person died a natural death. (Tex. Prob. Code, Sec. 41(d) (part).) |
|
Sec. 201.062. TREATMENT OF CERTAIN PARENT-CHILD |
|
RELATIONSHIPS. (a) A probate court may enter an order declaring |
|
that the parent of a child under 18 years of age may not inherit from |
|
or through the child under the laws of descent and distribution if |
|
the court finds by clear and convincing evidence that the parent |
|
has: |
|
(1) voluntarily abandoned and failed to support the |
|
child in accordance with the parent's obligation or ability for at |
|
least three years before the date of the child's death, and did not |
|
resume support for the child before that date; |
|
(2) voluntarily and with knowledge of the pregnancy: |
|
(A) abandoned the child's mother beginning at a |
|
time during her pregnancy with the child and continuing through the |
|
birth; |
|
(B) failed to provide adequate support or medical |
|
care for the mother during the period of abandonment before the |
|
child's birth; and |
|
(C) remained apart from and failed to support the |
|
child since birth; or |
|
(3) been convicted or has been placed on community |
|
supervision, including deferred adjudication community |
|
supervision, for being criminally responsible for the death or |
|
serious injury of a child under the following sections of the Penal |
|
Code or adjudicated under Title 3, Family Code, for conduct that |
|
caused the death or serious injury of a child and that would |
|
constitute a violation of one of the following sections of the Penal |
|
Code: |
|
(A) Section 19.02 (murder); |
|
(B) Section 19.03 (capital murder); |
|
(C) Section 19.04 (manslaughter); |
|
(D) Section 21.11 (indecency with a child); |
|
(E) Section 22.01 (assault); |
|
(F) Section 22.011 (sexual assault); |
|
(G) Section 22.02 (aggravated assault); |
|
(H) Section 22.021 (aggravated sexual assault); |
|
(I) Section 22.04 (injury to a child, elderly |
|
individual, or disabled individual); |
|
(J) Section 22.041 (abandoning or endangering |
|
child); |
|
(K) Section 25.02 (prohibited sexual conduct); |
|
(L) Section 43.25 (sexual performance by a |
|
child); or |
|
(M) Section 43.26 (possession or promotion of |
|
child pornography). |
|
(b) On a determination under Subsection (a) that the parent |
|
of a child may not inherit from or through the child, the parent |
|
shall be treated as if the parent predeceased the child for purposes |
|
of: |
|
(1) inheritance under the laws of descent and |
|
distribution; and |
|
(2) any other cause of action based on parentage. |
|
(Tex. Prob. Code, Secs. 41(e), (f).) |
|
[Sections 201.063-201.100 reserved for expansion] |
|
SUBCHAPTER C. DISTRIBUTION TO HEIRS |
|
Sec. 201.101. DETERMINATION OF PER CAPITA WITH |
|
REPRESENTATION DISTRIBUTION. (a) The children, descendants, |
|
brothers, sisters, uncles, aunts, or other relatives of an |
|
intestate who stand in the first or same degree of relationship |
|
alone and come into the distribution of the intestate's estate take |
|
per capita, which means by persons. |
|
(b) If some of the persons described by Subsection (a) are |
|
dead and some are living, each descendant of those persons who have |
|
died is entitled to a distribution of the intestate's estate. Each |
|
descendant inherits only that portion of the property to which the |
|
parent through whom the descendant inherits would be entitled if |
|
that parent were alive. (Tex. Prob. Code, Sec. 43.) |
|
Sec. 201.102. NO DISTINCTION BASED ON PROPERTY'S SOURCE. A |
|
distinction may not be made, in regulating the descent and |
|
distribution of an estate of a person dying intestate, between |
|
property derived by gift, devise, or descent from the intestate's |
|
father, and property derived by gift, devise, or descent from the |
|
intestate's mother. (Tex. Prob. Code, Sec. 39 (part).) |
|
Sec. 201.103. TREATMENT OF INTESTATE'S ESTATE. All of the |
|
estate to which an intestate had title at the time of death descends |
|
and vests in the intestate's heirs in the same manner as if the |
|
intestate had been the original purchaser. (Tex. Prob. Code, Sec. |
|
39 (part).) |
|
[Sections 201.104-201.150 reserved for expansion] |
|
SUBCHAPTER D. ADVANCEMENTS |
|
Sec. 201.151. DETERMINATION OF ADVANCEMENT; DATE OF |
|
VALUATION. (a) If a decedent dies intestate as to all or part of the |
|
decedent's estate, property that the decedent gave during the |
|
decedent's lifetime to a person who, on the date of the decedent's |
|
death, is the decedent's heir, or property received by the |
|
decedent's heir under a nontestamentary transfer under Subchapter |
|
B, Chapter 111, or Chapter 112 or 113, is an advancement against the |
|
heir's intestate share of the estate only if: |
|
(1) the decedent declared in a contemporaneous |
|
writing, or the heir acknowledged in writing, that the gift or |
|
nontestamentary transfer is an advancement; or |
|
(2) the decedent's contemporaneous writing or the |
|
heir's written acknowledgment otherwise indicates that the gift or |
|
nontestamentary transfer is to be considered in computing the |
|
division and distribution of the decedent's intestate estate. |
|
(b) For purposes of Subsection (a), property that is |
|
advanced is valued as of the earlier of: |
|
(1) the time that the heir came into possession or |
|
enjoyment of the property; or |
|
(2) the time of the decedent's death. (Tex. Prob. |
|
Code, Secs. 44(a), (b).) |
|
Sec. 201.152. SURVIVAL OF RECIPIENT REQUIRED. If the |
|
recipient of property described by Section 201.151 does not survive |
|
the decedent, the property is not considered in computing the |
|
division and distribution of the decedent's intestate estate unless |
|
the decedent's contemporaneous writing provides otherwise. (Tex. |
|
Prob. Code, Sec. 44(c).) |
|
CHAPTER 202. |
DETERMINATION OF HEIRSHIP |
|
SUBCHAPTER A. |
AUTHORIZATION AND PROCEDURES FOR COMMENCEMENT OF PROCEEDING TO DECLARE HEIRSHIP |
|
PROCEEDING TO DECLARE HEIRSHIP |
|
|
Sec. |
202.001. GENERAL AUTHORIZATION FOR AND NATURE OF |
|
PROCEEDING TO DECLARE HEIRSHIP |
|
Sec. |
202.002. CIRCUMSTANCES UNDER WHICH PROCEEDING TO |
|
DECLARE HEIRSHIP IS AUTHORIZED |
|
Sec. 202.003. VENUE FOR PROCEEDING TO DECLARE HEIRSHIP |
|
Sec. |
202.004. PERSONS WHO MAY COMMENCE PROCEEDING TO |
|
DECLARE HEIRSHIP |
|
Sec. |
202.005. APPLICATION FOR PROCEEDING TO DECLARE |
|
HEIRSHIP |
|
Sec. |
202.006. REQUEST FOR DETERMINATION OF NECESSITY |
|
FOR ADMINISTRATION |
|
Sec. |
202.007. AFFIDAVIT SUPPORTING APPLICATION |
|
REQUIRED |
|
Sec. |
202.008. REQUIRED PARTIES TO PROCEEDING TO |
|
DECLARE HEIRSHIP |
|
Sec. |
202.009. REPRESENTATION OF INTERESTS OF CERTAIN |
|
PERSONS |
|
[Sections 202.010-202.050 reserved for expansion] |
|
SUBCHAPTER B. |
NOTICE OF PROCEEDING TO DECLARE HEIRSHIP |
|
Sec. |
202.051. SERVICE OF CITATION BY MAIL WHEN |
|
|
|
|
OR ASCERTAINABLE |
|
Sec. |
202.052. SERVICE OF CITATION BY PUBLICATION WHEN |
|
|
|
|
ASCERTAINABLE |
|
Sec. 202.053. REQUIRED POSTING OF CITATION |
|
Sec. |
202.054. PERSONAL SERVICE OF CITATION MAY BE |
|
REQUIRED |
|
Sec. |
202.055. SERVICE OF CITATION ON CERTAIN PERSONS |
|
NOT REQUIRED |
|
Sec. |
202.056. WAIVER OF SERVICE OF CITATION ON CERTAIN |
|
PERSONS NOT PERMITTED |
|
[Sections 202.057-202.100 reserved for expansion] |
|
SUBCHAPTER C. TRANSFER OF PENDING PROCEEDING TO DECLARE HEIRSHIP |
|
|
Sec. |
202.101. REQUIRED TRANSFER OF PENDING PROCEEDING |
|
|
|
|
CIRCUMSTANCES |
|
Sec. 202.102. TRANSFER OF RECORDS |
|
Sec. |
202.103. PROCEDURES APPLICABLE TO TRANSFERRED |
|
|
|
|
CONSOLIDATION WITH OTHER PROCEEDING |
|
[Sections 202.104-202.150 reserved for expansion] |
|
SUBCHAPTER D. EVIDENCE RELATING TO DETERMINATION OF HEIRSHIP |
|
|
Sec. |
202.151. WRITTEN EVIDENCE IN PROCEEDING TO |
|
DECLARE HEIRSHIP |
|
[Sections 202.152-202.200 reserved for expansion] |
|
SUBCHAPTER E. JUDGMENT IN PROCEEDING TO DECLARE HEIRSHIP |
|
|
Sec. 202.201. REQUIRED STATEMENTS IN JUDGMENT |
|
Sec. 202.202. FINALITY AND APPEAL OF JUDGMENT |
|
Sec. |
202.203. CORRECTION OF JUDGMENT AT REQUEST OF |
|
HEIR NOT PROPERLY SERVED |
|
Sec. |
202.204. LIMITATION OF LIABILITY OF CERTAIN |
|
|
|
|
JUDGMENT |
|
Sec. |
202.205. EFFECT OF CERTAIN JUDGMENTS ON LIABILITY |
|
TO CREDITORS |
|
Sec. 202.206. FILING AND RECORDING OF JUDGMENT |
|
CHAPTER 202. DETERMINATION OF HEIRSHIP |
|
SUBCHAPTER A. AUTHORIZATION AND PROCEDURES FOR COMMENCEMENT OF |
|
PROCEEDING TO DECLARE HEIRSHIP |
|
Sec. 202.001. GENERAL AUTHORIZATION FOR AND NATURE OF |
|
PROCEEDING TO DECLARE HEIRSHIP. In the manner provided by this |
|
chapter, a court may determine through a proceeding to declare |
|
heirship: |
|
(1) the persons who are a decedent's heirs and only |
|
heirs; and |
|
(2) the heirs' respective shares and interests under |
|
the laws of this state in the decedent's estate. (Tex. Prob. Code, |
|
Sec. 48(a) (part).) |
|
Sec. 202.002. CIRCUMSTANCES UNDER WHICH PROCEEDING TO |
|
DECLARE HEIRSHIP IS AUTHORIZED. A court may conduct a proceeding to |
|
declare heirship when: |
|
(1) a person dies intestate owning or entitled to |
|
property in this state and there has been no administration in this |
|
state of the person's estate; or |
|
(2) there has been a will probated in this state or |
|
elsewhere or an administration in this state of the decedent's |
|
estate, but: |
|
(A) property in this state was omitted from the |
|
will or administration; or |
|
(B) no final disposition of property in this |
|
state has been made in the administration. (Tex. Prob. Code, Sec. |
|
48(a) (part).) |
|
Sec. 202.003. VENUE FOR PROCEEDING TO DECLARE HEIRSHIP. |
|
(a) A proceeding to declare heirship of a decedent may be conducted |
|
by: |
|
(1) the court of the county in which a proceeding to |
|
probate the decedent's will or for the administration of the |
|
decedent's estate was most recently pending; or |
|
(2) if no will of the decedent has been admitted to |
|
probate in this state and no administration of the decedent's |
|
estate has been granted in this state, the court of the county in |
|
which venue would be proper for commencement of an administration |
|
of the decedent's estate under Section 6. |
|
(b) Notwithstanding Subsection (a), a probate court in |
|
which proceedings for the guardianship of the estate of a ward who |
|
dies intestate were pending at the time of the decedent's death may, |
|
if there is no administration pending in the estate, determine: |
|
(1) the persons who are the decedent's heirs and only |
|
heirs; and |
|
(2) the heirs' respective shares and interests under |
|
the laws of this state in the decedent's estate. (Tex. Prob. Code, |
|
Secs. 48(a) (part), (c).) |
|
Sec. 202.004. PERSONS WHO MAY COMMENCE PROCEEDING TO |
|
DECLARE HEIRSHIP. A proceeding to declare heirship of a decedent |
|
may be commenced and maintained under a circumstance specified by |
|
Section 202.002 by: |
|
(1) the personal representative of the decedent's |
|
estate; |
|
(2) a person claiming to be a secured creditor or the |
|
owner of all or part of the decedent's estate; or |
|
(3) if the decedent was a ward with respect to whom a |
|
guardian of the estate had been appointed, the guardian of the |
|
estate, provided that the proceeding is commenced and maintained in |
|
the probate court in which the proceedings for the guardianship of |
|
the estate were pending at the time of the decedent's death. (Tex. |
|
Prob. Code, Sec. 49(a) (part).) |
|
Sec. 202.005. APPLICATION FOR PROCEEDING TO DECLARE |
|
HEIRSHIP. A person authorized by Section 202.004 to commence a |
|
proceeding to declare heirship must file an application in a court |
|
specified by Section 202.003 to commence the proceeding. The |
|
application must state: |
|
(1) the decedent's name and time and place of death; |
|
(2) the names and residences of the decedent's heirs, |
|
the relationship of each heir to the decedent, and the true interest |
|
of the applicant and each of the heirs in the decedent's estate; |
|
(3) if the time or place of the decedent's death or the |
|
name or residence of an heir is not definitely known to the |
|
applicant, all the material facts and circumstances with respect to |
|
which the applicant has knowledge and information that might |
|
reasonably tend to show the time or place of the decedent's death or |
|
the name or residence of the heir; |
|
(4) that all children born to or adopted by the |
|
decedent have been listed; |
|
(5) that each of the decedent's marriages has been |
|
listed with: |
|
(A) the date of the marriage; |
|
(B) the name of the spouse; |
|
(C) the date and place of termination if the |
|
marriage was terminated; and |
|
(D) other facts to show whether a spouse has had |
|
an interest in the decedent's property; |
|
(6) whether the decedent died testate and, if so, what |
|
disposition has been made of the will; |
|
(7) a general description of all property belonging to |
|
the decedent's estate; and |
|
(8) an explanation for the omission from the |
|
application of any of the information required by this section. |
|
(Tex. Prob. Code, Sec. 49(a) (part).) |
|
Sec. 202.006. REQUEST FOR DETERMINATION OF NECESSITY FOR |
|
ADMINISTRATION. A person who files an application under Section |
|
202.005 not later than the fourth anniversary of the date of the |
|
death of the decedent who is the subject of the application may |
|
request that the court determine whether there is a need for |
|
administration of the decedent's estate. The court shall hear |
|
evidence on the issue and, in the court's judgment, make a |
|
determination of the issue. (Tex. Prob. Code, Sec. 48(b).) |
|
Sec. 202.007. AFFIDAVIT SUPPORTING APPLICATION REQUIRED. |
|
(a) An application filed under Section 202.005 must be supported by |
|
the affidavit of each applicant. |
|
(b) An affidavit of an applicant under Subsection (a) must |
|
state that, to the applicant's knowledge: |
|
(1) all the allegations in the application are true; |
|
and |
|
(2) no material fact or circumstance has been omitted |
|
from the application. (Tex. Prob. Code, Sec. 49(b) (part).) |
|
Sec. 202.008. REQUIRED PARTIES TO PROCEEDING TO DECLARE |
|
HEIRSHIP. Each of the following persons must be made a party to a |
|
proceeding to declare heirship: |
|
(1) each unknown heir of the decedent who is the |
|
subject of the proceeding; |
|
(2) each person who is named as an heir of the decedent |
|
in the application filed under Section 202.005; and |
|
(3) each person who is, on the filing date of the |
|
application, shown as owning a share or interest in any real |
|
property described in the application by the deed records of the |
|
county in which the property is located. (Tex. Prob. Code, Sec. |
|
49(b) (part).) |
|
Sec. 202.009. REPRESENTATION OF INTERESTS OF CERTAIN |
|
PERSONS. (a) If it appears to the court in a proceeding to declare |
|
heirship that there is or may be a living heir whose name or |
|
whereabouts is unknown, or that a defendant is an incapacitated |
|
person, the court may appoint an attorney ad litem or guardian ad |
|
litem to represent the interests of that person. The court may not |
|
appoint an attorney ad litem or guardian ad litem unless the court |
|
finds that the appointment is necessary to protect the interests of |
|
the living heir or incapacitated person. |
|
(b) The court shall appoint an attorney ad litem to |
|
represent the interests of unknown heirs. (Tex. Prob. Code, Secs. |
|
53(b), (c).) |
|
[Sections 202.010-202.050 reserved for expansion] |
|
SUBCHAPTER B. NOTICE OF PROCEEDING TO DECLARE HEIRSHIP |
|
Sec. 202.051. SERVICE OF CITATION BY MAIL WHEN RECIPIENT'S |
|
NAME AND ADDRESS ARE KNOWN OR ASCERTAINABLE. Except as provided by |
|
Section 202.054, citation in a proceeding to declare heirship must |
|
be served by registered or certified mail on: |
|
(1) each distributee who is 12 years of age or older |
|
and whose name and address are known or can be ascertained through |
|
the exercise of reasonable diligence; and |
|
(2) the parent, managing conservator, or guardian of |
|
each distributee who is younger than 12 years of age if the name and |
|
address of the parent, managing conservator, or guardian are known |
|
or can be reasonably ascertained. (Tex. Prob. Code, Sec. 50(a) |
|
(part).) |
|
Sec. 202.052. SERVICE OF CITATION BY PUBLICATION WHEN |
|
RECIPIENT'S NAME OR ADDRESS IS NOT ASCERTAINABLE. If the address of |
|
a person or entity on whom citation is required to be served cannot |
|
be ascertained, citation must be served on the person or entity by |
|
publication in the county in which the proceeding to declare |
|
heirship is commenced and in the county of the last residence of the |
|
decedent who is the subject of the proceeding, if that residence was |
|
in a county other than the county in which the proceeding is |
|
commenced. To determine whether a decedent has any other heirs, |
|
citation must be served on unknown heirs by publication in the |
|
manner provided by this section. (Tex. Prob. Code, Sec. 50(b).) |
|
Sec. 202.053. REQUIRED POSTING OF CITATION. Except in a |
|
proceeding in which citation is served by publication as provided |
|
by Section 202.052, citation in a proceeding to declare heirship |
|
must be posted in: |
|
(1) the county in which the proceeding is commenced; |
|
and |
|
(2) the county of the last residence of the decedent |
|
who is the subject of the proceeding. (Tex. Prob. Code, Sec. 50(c).) |
|
Sec. 202.054. PERSONAL SERVICE OF CITATION MAY BE REQUIRED. |
|
The court may require that service of citation in a proceeding to |
|
declare heirship be made by personal service on some or all of those |
|
named as distributees in the application filed under Section |
|
202.005. (Tex. Prob. Code, Sec. 50(a) (part).) |
|
Sec. 202.055. SERVICE OF CITATION ON CERTAIN PERSONS NOT |
|
REQUIRED. A party to a proceeding to declare heirship who executed |
|
the application filed under Section 202.005 is not required to be |
|
served by any method. (Tex. Prob. Code, Sec. 50(d).) |
|
Sec. 202.056. WAIVER OF SERVICE OF CITATION ON CERTAIN |
|
PERSONS NOT PERMITTED. A parent, managing conservator, guardian, |
|
attorney ad litem, or guardian ad litem of a distributee who is 12 |
|
years of age or older, but younger than 19 years of age, may not |
|
waive citation required by this subchapter to be served on the |
|
distributee. (Tex. Prob. Code, Sec. 50(e).) |
|
[Sections 202.057-202.100 reserved for expansion] |
|
SUBCHAPTER C. TRANSFER OF PENDING PROCEEDING TO DECLARE HEIRSHIP |
|
Sec. 202.101. REQUIRED TRANSFER OF PENDING PROCEEDING TO |
|
DECLARE HEIRSHIP UNDER CERTAIN CIRCUMSTANCES. If, after a |
|
proceeding to declare heirship is commenced, an administration of |
|
the estate of the decedent who is the subject of the proceeding is |
|
granted in this state or the decedent's will is admitted to probate |
|
in this state, the court in which the proceeding to declare |
|
heirship is pending shall, by an order entered of record in the |
|
proceeding, transfer the proceeding to the court in which the |
|
administration was granted or the will was probated. (Tex. Prob. |
|
Code, Sec. 51 (part).) |
|
Sec. 202.102. TRANSFER OF RECORDS. The clerk of the court |
|
from which a proceeding to declare heirship is transferred under |
|
Section 202.101 shall, on entry of the order under that section, |
|
send to the clerk of the court named in the order a certified |
|
transcript of all pleadings, docket entries, and orders of the |
|
court in the proceeding. The clerk of the court to which the |
|
proceeding is transferred shall: |
|
(1) file the transcript; |
|
(2) record the transcript in the minutes of the court; |
|
and |
|
(3) docket the proceeding. (Tex. Prob. Code, Sec. 51 |
|
(part).) |
|
Sec. 202.103. PROCEDURES APPLICABLE TO TRANSFERRED |
|
PROCEEDING TO DECLARE HEIRSHIP; CONSOLIDATION WITH OTHER |
|
PROCEEDING. A proceeding to declare heirship that is transferred |
|
under Section 202.101 shall proceed as though the proceeding was |
|
originally filed in the court to which the proceeding is |
|
transferred. The court may consolidate the proceeding with the |
|
other proceeding pending in that court. (Tex. Prob. Code, Sec. 51 |
|
(part).) |
|
[Sections 202.104-202.150 reserved for expansion] |
|
SUBCHAPTER D. EVIDENCE RELATING TO DETERMINATION OF HEIRSHIP |
|
Sec. 202.151. WRITTEN EVIDENCE IN PROCEEDING TO DECLARE |
|
HEIRSHIP. The court may require that all or any part of the |
|
evidence admitted in a proceeding to declare heirship be: |
|
(1) reduced to writing and subscribed and sworn to by |
|
the witnesses, respectively; and |
|
(2) filed in the proceeding and recorded in the |
|
minutes of the court. (Tex. Prob. Code, Sec. 53(a).) |
|
[Sections 202.152-202.200 reserved for expansion] |
|
SUBCHAPTER E. JUDGMENT IN PROCEEDING TO DECLARE HEIRSHIP |
|
Sec. 202.201. REQUIRED STATEMENTS IN JUDGMENT. (a) The |
|
judgment in a proceeding to declare heirship must state: |
|
(1) the names and places of residence of the heirs of |
|
the decedent who is the subject of the proceeding; and |
|
(2) the heirs' respective shares and interests in the |
|
decedent's property. |
|
(b) If the proof in a proceeding to declare heirship is in |
|
any respect deficient, the judgment in the proceeding must state |
|
that. (Tex. Prob. Code, Sec. 54.) |
|
Sec. 202.202. FINALITY AND APPEAL OF JUDGMENT. (a) The |
|
judgment in a proceeding to declare heirship is a final judgment. |
|
(b) At the request of an interested person, the judgment in |
|
a proceeding to declare heirship may be appealed or reviewed within |
|
the same time limits and in the same manner as other judgments in |
|
probate matters. (Tex. Prob. Code, Sec. 55(a) (part).) |
|
Sec. 202.203. CORRECTION OF JUDGMENT AT REQUEST OF HEIR NOT |
|
PROPERLY SERVED. If an heir of a decedent who is the subject of a |
|
proceeding to declare heirship is not served with citation by |
|
registered or certified mail or personal service in the proceeding, |
|
the heir may: |
|
(1) have the judgment in the proceeding corrected by |
|
bill of review: |
|
(A) at any time, but not later than the fourth |
|
anniversary of the date of the judgment; or |
|
(B) after the passage of any length of time, on |
|
proof of actual fraud; and |
|
(2) recover the heir's just share of the property or |
|
the value of that share from: |
|
(A) the heirs named in the judgment; and |
|
(B) those who claim under the heirs named in the |
|
judgment and who are not bona fide purchasers for value. (Tex. |
|
Prob. Code, Sec. 55(a) (part).) |
|
Sec. 202.204. LIMITATION OF LIABILITY OF CERTAIN PERSONS |
|
ACTING IN ACCORDANCE WITH JUDGMENT. (a) The judgment in a |
|
proceeding to declare heirship is conclusive in a suit between an |
|
heir omitted from the judgment and a bona fide purchaser for value |
|
who purchased property after entry of the judgment without actual |
|
notice of the claim of the omitted heir, regardless of whether the |
|
judgment is subsequently modified, set aside, or nullified. |
|
(b) A person is not liable to another person for the |
|
following actions performed in good faith after a judgment is |
|
entered in a proceeding to declare heirship: |
|
(1) delivering the property of the decedent who was |
|
the subject of the proceeding to the persons named as heirs in the |
|
judgment; or |
|
(2) engaging in any other transaction with the persons |
|
named as heirs in the judgment. (Tex. Prob. Code, Sec. 55(b).) |
|
Sec. 202.205. EFFECT OF CERTAIN JUDGMENTS ON LIABILITY TO |
|
CREDITORS. (a) A judgment in a proceeding to declare heirship |
|
stating that there is no necessity for administration of the estate |
|
of the decedent who is the subject of the proceeding constitutes |
|
authorization for a person who owes money to the estate, has custody |
|
of estate property, acts as registrar or transfer agent of an |
|
evidence of interest, indebtedness, property, or right belonging to |
|
the estate, or purchases from or otherwise deals with an heir named |
|
in the judgment to take the following actions without liability to a |
|
creditor of the estate or other person: |
|
(1) to pay, deliver, or transfer the property or the |
|
evidence of property rights to an heir named in the judgment; or |
|
(2) to purchase property from an heir named in the |
|
judgment. |
|
(b) An heir named in a judgment in a proceeding to declare |
|
heirship is entitled to enforce the heir's right to payment, |
|
delivery, or transfer described by Subsection (a) by suit. |
|
(c) Except as provided by this section, this chapter does |
|
not affect the rights or remedies of the creditors of a decedent who |
|
is the subject of a proceeding to declare heirship. (Tex. Prob. |
|
Code, Sec. 55(c).) |
|
Sec. 202.206. FILING AND RECORDING OF JUDGMENT. (a) A |
|
certified copy of the judgment in a proceeding to declare heirship |
|
may be: |
|
(1) filed for record in the office of the county clerk |
|
of the county in which any real property described in the judgment |
|
is located; |
|
(2) recorded in the deed records of that county; and |
|
(3) indexed in the name of the decedent who was the |
|
subject of the proceeding as grantor and in the names of the heirs |
|
named in the judgment as grantees. |
|
(b) On the filing of a judgment in accordance with |
|
Subsection (a), the judgment constitutes constructive notice of the |
|
facts stated in the judgment. (Tex. Prob. Code, Sec. 56.) |
|
CHAPTER 203. |
NONJUDICIAL EVIDENCE OF HEIRSHIP |
|
Sec. |
203.001. RECORDED STATEMENT OF FACTS AS PRIMA |
|
FACIE EVIDENCE OF HEIRSHIP |
|
Sec. |
203.002. FORM OF AFFIDAVIT CONCERNING IDENTITY OF |
|
HEIRS |
|
CHAPTER 203. NONJUDICIAL EVIDENCE OF HEIRSHIP |
|
Sec. 203.001. RECORDED STATEMENT OF FACTS AS PRIMA FACIE |
|
EVIDENCE OF HEIRSHIP. (a) A court shall receive in a proceeding to |
|
declare heirship or a suit involving title to property a statement |
|
of facts concerning the family history, genealogy, marital status, |
|
or the identity of the heirs of a decedent as prima facie evidence |
|
of the facts contained in the statement if: |
|
(1) the statement is contained in: |
|
(A) an affidavit or other instrument legally |
|
executed and acknowledged or sworn to before, and certified by, an |
|
officer authorized to take acknowledgments or oaths, as applicable; |
|
or |
|
(B) a judgment of a court of record; and |
|
(2) the affidavit or instrument containing the |
|
statement has been of record for five years or more in the deed |
|
records of a county in this state in which the property is located |
|
at the time the suit involving title to property is commenced, or in |
|
the deed records of a county in this state in which the decedent was |
|
domiciled or had a fixed place of residence at the time of the |
|
decedent's death. |
|
(b) If there is an error in a statement of facts in a |
|
recorded affidavit or instrument described by Subsection (a), |
|
anyone interested in a proceeding in which the affidavit or |
|
instrument is offered in evidence may prove the true facts. |
|
(c) An affidavit of facts concerning the identity of a |
|
decedent's heirs as to an interest in real property that is filed in |
|
a proceeding or suit described by Subsection (a) may be in the form |
|
prescribed by Section 203.002. |
|
(d) An affidavit of facts concerning the identity of a |
|
decedent's heirs does not affect the rights of an omitted heir or |
|
creditor of the decedent as otherwise provided by law. This section |
|
is cumulative of all other statutes on the same subject and may not |
|
be construed as abrogating any right to present evidence or rely on |
|
an affidavit of facts conferred by any other statute or rule. (Tex. |
|
Prob. Code, Sec. 52.) |
|
Sec. 203.002. FORM OF AFFIDAVIT CONCERNING IDENTITY OF |
|
HEIRS. An affidavit of facts concerning the identity of a |
|
decedent's heirs may be in substantially the following form: |
|
AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS |
|
Before me, the undersigned authority, on this day personally |
|
appeared __________ ("Affiant") (insert name of affiant) who, being |
|
first duly sworn, upon his/her oath states: |
|
1. My name is __________ (insert name of affiant), and I live |
|
at __________ (insert address of affiant's residence). I am |
|
personally familiar with the family and marital history of |
|
__________ ("Decedent") (insert name of decedent), and I have |
|
personal knowledge of the facts stated in this affidavit. |
|
2. I knew decedent from __________ (insert date) until |
|
__________ (insert date). Decedent died on __________ (insert date |
|
of death). Decedent's place of death was __________ (insert place |
|
of death). At the time of decedent's death, decedent's residence was |
|
__________ (insert address of decedent's residence). |
|
3. Decedent's marital history was as follows: __________ |
|
(insert marital history and, if decedent's spouse is deceased, |
|
insert date and place of spouse's death). |
|
4. Decedent had the following children: __________ (insert |
|
name, birth date, name of other parent, and current address of child |
|
or date of death of child and descendants of deceased child, as |
|
applicable, for each child). |
|
5. Decedent did not have or adopt any other children and did |
|
not take any other children into decedent's home or raise any other |
|
children, except: __________ (insert name of child or names of |
|
children, or state "none"). |
|
6. (Include if decedent was not survived by descendants.) |
|
Decedent's mother was: __________ (insert name, birth date, and |
|
current address or date of death of mother, as applicable). |
|
7. (Include if decedent was not survived by descendants.) |
|
Decedent's father was: __________ (insert name, birth date, and |
|
current address or date of death of father, as applicable). |
|
8. (Include if decedent was not survived by descendants or by |
|
both mother and father.) Decedent had the following siblings: |
|
__________ (insert name, birth date, and current address or date of |
|
death of each sibling and parents of each sibling and descendants of |
|
each deceased sibling, as applicable, or state "none"). |
|
9. (Optional.) The following persons have knowledge |
|
regarding the decedent, the identity of decedent's children, if |
|
any, parents, or siblings, if any: __________ (insert names of |
|
persons with knowledge, or state "none"). |
|
10. Decedent died without leaving a written will. (Modify |
|
statement if decedent left a written will.) |
|
11. There has been no administration of decedent's estate. |
|
(Modify statement if there has been administration of decedent's |
|
estate.) |
|
12. Decedent left no debts that are unpaid, except: |
|
__________ (insert list of debts, or state "none"). |
|
13. There are no unpaid estate or inheritance taxes, except: |
|
__________ (insert list of unpaid taxes, or state "none"). |
|
14. To the best of my knowledge, decedent owned an interest |
|
in the following real property: __________ (insert list of real |
|
property in which decedent owned an interest, or state "none"). |
|
15. (Optional.) The following were the heirs of decedent: |
|
__________ (insert names of heirs). |
|
16. (Insert additional information as appropriate, such as |
|
size of the decedent's estate.) |
|
Signed this ___ day of __________, ___. |
|
_________________________________ |
|
(signature of affiant) |
|
State of __________ |
|
County of __________ |
|
Sworn to and subscribed to before me on __________ (date) by |
|
__________ (insert name of affiant). |
|
_________________________________ |
|
(signature of notarial officer) |
|
(Seal, if any, of notary) __________ |
|
(printed name) |
|
My commission expires: __________ |
|
(Tex. Prob. Code, Sec. 52A.) |
|
CHAPTER 204. |
GENETIC TESTING IN PROCEEDINGS TO DECLARE HEIRSHIP |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 204.001. PROCEEDINGS AND RECORDS PUBLIC |
|
[Sections 204.002-204.050 reserved for expansion] |
|
SUBCHAPTER B. COURT ORDERS FOR GENETIC TESTING IN PROCEEDINGS TO |
DECLARE HEIRSHIP |
|
DECLARE HEIRSHIP |
|
|
Sec. 204.051. ORDER FOR GENETIC TESTING |
|
Sec. 204.052. ADVANCEMENT OF COSTS |
|
Sec. |
204.053. ORDER AND ADVANCEMENT OF COSTS FOR |
|
SUBSEQUENT GENETIC TESTING |
|
Sec. |
204.054. SUBMISSION OF GENETIC MATERIAL BY OTHER |
|
RELATIVE UNDER CERTAIN CIRCUMSTANCES |
|
Sec. 204.055. GENETIC TESTING OF DECEASED INDIVIDUAL |
|
Sec. 204.056. CRIMINAL PENALTY |
|
[Sections 204.057-204.100 reserved for expansion] |
|
SUBCHAPTER C. RESULTS OF GENETIC TESTING |
|
|
Sec. |
204.101. RESULTS OF GENETIC TESTING; |
|
ADMISSIBILITY |
|
Sec. |
204.102. PRESUMPTION REGARDING RESULTS OF GENETIC |
|
TESTING; REBUTTAL |
|
Sec. 204.103. CONTESTING RESULTS OF GENETIC TESTING |
|
[Sections 204.104-204.150 reserved for expansion] |
|
SUBCHAPTER D. USE OF RESULTS OF GENETIC TESTING IN CERTAIN |
PROCEEDINGS TO DECLARE HEIRSHIP |
|
PROCEEDINGS TO DECLARE HEIRSHIP |
|
|
Sec. 204.151. APPLICABILITY OF SUBCHAPTER |
|
Sec. |
204.152. REQUIRED FINDINGS IN ABSENCE OF REBUTTAL |
|
EVIDENCE |
|
Sec. |
204.153. EFFECT OF INCONCLUSIVE RESULTS OF |
|
GENETIC TESTING |
|
[Sections 204.154-204.200 reserved for expansion] |
|
SUBCHAPTER E. ADDITIONAL ORDERS FOLLOWING RESULTS OF GENETIC |
TESTING |
|
TESTING |
|
|
Sec. 204.201. ORDER FOR CHANGE OF NAME |
|
CHAPTER 204. GENETIC TESTING IN PROCEEDINGS TO DECLARE HEIRSHIP |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 204.001. PROCEEDINGS AND RECORDS PUBLIC. A proceeding |
|
under this chapter or Chapter 202 involving genetic testing is open |
|
to the public as in other civil cases. Papers and records in the |
|
proceeding are available for public inspection. (Tex. Prob. Code, |
|
Sec. 53E.) |
|
[Sections 204.002-204.050 reserved for expansion] |
|
SUBCHAPTER B. COURT ORDERS FOR GENETIC TESTING IN PROCEEDINGS TO |
|
DECLARE HEIRSHIP |
|
Sec. 204.051. ORDER FOR GENETIC TESTING. (a) In a |
|
proceeding to declare heirship under Chapter 202, the court may, on |
|
the court's own motion, and shall, on the request of a party to the |
|
proceeding, order one or more specified individuals to submit to |
|
genetic testing as provided by Subchapter F, Chapter 160, Family |
|
Code. If two or more individuals are ordered to be tested, the |
|
court may order that the testing of those individuals be done |
|
concurrently or sequentially. |
|
(b) The court may enforce an order under this section by |
|
contempt. (Tex. Prob. Code, Sec. 53A(a).) |
|
Sec. 204.052. ADVANCEMENT OF COSTS. Subject to any |
|
assessment of costs following a proceeding to declare heirship in |
|
accordance with Rule 131, Texas Rules of Civil Procedure, the cost |
|
of genetic testing ordered under Section 204.051 must be advanced: |
|
(1) by a party to the proceeding who requests the |
|
testing; |
|
(2) as agreed by the parties and approved by the court; |
|
or |
|
(3) as ordered by the court. (Tex. Prob. Code, Sec. |
|
53A(b).) |
|
Sec. 204.053. ORDER AND ADVANCEMENT OF COSTS FOR SUBSEQUENT |
|
GENETIC TESTING. (a) Subject to Subsection (b), the court shall |
|
order genetic testing subsequent to the testing conducted under |
|
Section 204.051 if: |
|
(1) a party to the proceeding to declare heirship |
|
contests the results of the genetic testing ordered under Section |
|
204.051; and |
|
(2) the party contesting the results requests that |
|
additional testing be conducted. |
|
(b) If the results of the genetic testing ordered under |
|
Section 204.051 identify a tested individual as an heir of the |
|
decedent, the court may order additional genetic testing in |
|
accordance with Subsection (a) only if the party contesting those |
|
results pays for the additional testing in advance. (Tex. Prob. |
|
Code, Secs. 53A(c), (d).) |
|
Sec. 204.054. SUBMISSION OF GENETIC MATERIAL BY OTHER |
|
RELATIVE UNDER CERTAIN CIRCUMSTANCES. If a sample of an |
|
individual's genetic material that could identify another |
|
individual as the decedent's heir is not available for purposes of |
|
conducting genetic testing under this subchapter, the court, on a |
|
finding of good cause and that the need for genetic testing |
|
outweighs the legitimate interests of the individual to be tested, |
|
may order any of the following individuals to submit a sample of |
|
genetic material for the testing under circumstances the court |
|
considers just: |
|
(1) a parent, sibling, or child of the individual |
|
whose genetic material is not available; or |
|
(2) any other relative of that individual, as |
|
necessary to conduct the testing. (Tex. Prob. Code, Sec. 53A(e).) |
|
Sec. 204.055. GENETIC TESTING OF DECEASED INDIVIDUAL. On |
|
good cause shown, the court may order: |
|
(1) genetic testing of a deceased individual under |
|
this subchapter; and |
|
(2) if necessary, removal of the remains of the |
|
deceased individual as provided by Section 711.004, Health and |
|
Safety Code, for that testing. (Tex. Prob. Code, Sec. 53A(f).) |
|
Sec. 204.056. CRIMINAL PENALTY. (a) An individual commits |
|
an offense if: |
|
(1) the individual intentionally releases an |
|
identifiable sample of the genetic material of another individual |
|
that was provided for purposes of genetic testing ordered under |
|
this subchapter; and |
|
(2) the release: |
|
(A) is for a purpose not related to the |
|
proceeding to declare heirship; and |
|
(B) was not ordered by the court or done in |
|
accordance with written permission obtained from the individual who |
|
provided the sample. |
|
(b) An offense under this section is a Class A misdemeanor. |
|
(Tex. Prob. Code, Sec. 53A(g).) |
|
[Sections 204.057-204.100 reserved for expansion] |
|
SUBCHAPTER C. RESULTS OF GENETIC TESTING |
|
Sec. 204.101. RESULTS OF GENETIC TESTING; ADMISSIBILITY. A |
|
report of the results of genetic testing ordered under Subchapter |
|
B: |
|
(1) must comply with the requirements for a report |
|
prescribed by Section 160.504, Family Code; and |
|
(2) is admissible in a proceeding to declare heirship |
|
under Chapter 202 as evidence of the truth of the facts asserted in |
|
the report. (Tex. Prob. Code, Sec. 53B(a).) |
|
Sec. 204.102. PRESUMPTION REGARDING RESULTS OF GENETIC |
|
TESTING; REBUTTAL. The presumption under Section 160.505, Family |
|
Code: |
|
(1) applies to the results of genetic testing ordered |
|
under Subchapter B; and |
|
(2) may be rebutted as provided by Section 160.505, |
|
Family Code. (Tex. Prob. Code, Sec. 53B(b).) |
|
Sec. 204.103. CONTESTING RESULTS OF GENETIC TESTING. (a) A |
|
party to a proceeding to declare heirship who contests the results |
|
of genetic testing may call one or more genetic testing experts to |
|
testify in person or by telephone, videoconference, deposition, or |
|
another method approved by the court. |
|
(b) Unless otherwise ordered by the court, the party |
|
offering the testimony under Subsection (a) bears the expense for |
|
the expert testifying. (Tex. Prob. Code, Sec. 53B(c).) |
|
[Sections 204.104-204.150 reserved for expansion] |
|
SUBCHAPTER D. USE OF RESULTS OF GENETIC TESTING IN CERTAIN |
|
PROCEEDINGS TO DECLARE HEIRSHIP |
|
Sec. 204.151. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
applies in a proceeding to declare heirship of a decedent only with |
|
respect to an individual who: |
|
(1) petitions the court for a determination of right |
|
of inheritance as authorized by Section 201.052(c); and |
|
(2) claims: |
|
(A) to be a biological child of the decedent, but |
|
with respect to whom a parent-child relationship with the decedent |
|
was not established as provided by Section 160.201, Family Code; or |
|
(B) to inherit through a biological child of the |
|
decedent, if a parent-child relationship between the individual |
|
through whom the inheritance is claimed and the decedent was not |
|
established as provided by Section 160.201, Family Code. (Tex. |
|
Prob. Code, Sec. 53C(a).) |
|
Sec. 204.152. REQUIRED FINDINGS IN ABSENCE OF REBUTTAL |
|
EVIDENCE. Unless the results of genetic testing of another |
|
individual who is an heir of the decedent who is the subject of a |
|
proceeding to declare heirship to which this subchapter applies are |
|
admitted as rebuttal evidence, the court shall find that the |
|
individual described by Section 204.151: |
|
(1) is an heir of the decedent, if the results of |
|
genetic testing ordered under Subchapter B identify a tested |
|
individual who is an heir of the decedent as the ancestor of the |
|
individual described by Section 204.151; or |
|
(2) is not an heir of the decedent, if the results of |
|
genetic testing ordered under Subchapter B exclude a tested |
|
individual who is an heir of the decedent as the ancestor of the |
|
individual described by Section 204.151. (Tex. Prob. Code, Secs. |
|
53C(b), (c).) |
|
Sec. 204.153. EFFECT OF INCONCLUSIVE RESULTS OF GENETIC |
|
TESTING. If the results of genetic testing ordered under |
|
Subchapter B do not identify or exclude a tested individual as the |
|
ancestor of the individual described by Section 204.151: |
|
(1) the court may not dismiss the proceeding to |
|
declare heirship; and |
|
(2) the results of the genetic testing and other |
|
relevant evidence are admissible in the proceeding. (Tex. Prob. |
|
Code, Sec. 53C(d).) |
|
[Sections 204.154-204.200 reserved for expansion] |
|
SUBCHAPTER E. ADDITIONAL ORDERS FOLLOWING RESULTS OF GENETIC |
|
TESTING |
|
Sec. 204.201. ORDER FOR CHANGE OF NAME. On the request of |
|
an individual determined by the results of genetic testing to be the |
|
heir of a decedent and for good cause shown, the court may: |
|
(1) order the name of the individual to be changed; and |
|
(2) if the court orders a name change under |
|
Subdivision (1), order the bureau of vital statistics to issue an |
|
amended birth record for the individual. (Tex. Prob. Code, Sec. |
|
53D.) |
|
CHAPTER 205. SMALL ESTATE AFFIDAVIT |
|
|
Sec. |
205.001. ENTITLEMENT TO ESTATE WITHOUT |
|
APPOINTMENT OF PERSONAL REPRESENTATIVE |
|
Sec. 205.002. AFFIDAVIT REQUIREMENTS |
|
Sec. 205.003. EXAMINATION AND APPROVAL OF AFFIDAVIT |
|
Sec. 205.004. COPY OF AFFIDAVIT TO CERTAIN PERSONS |
|
Sec. 205.005. AFFIDAVIT AS LOCAL GOVERNMENT RECORD |
|
Sec. |
205.006. TITLE TO HOMESTEAD TRANSFERRED UNDER |
|
AFFIDAVIT |
|
Sec. 205.007. LIABILITY OF CERTAIN PERSONS |
|
Sec. 205.008. EFFECT OF CHAPTER |
|
CHAPTER 205. SMALL ESTATE AFFIDAVIT |
|
Sec. 205.001. ENTITLEMENT TO ESTATE WITHOUT APPOINTMENT OF |
|
PERSONAL REPRESENTATIVE. The distributees of the estate of a |
|
decedent who dies intestate are entitled to the decedent's estate |
|
without waiting for the appointment of a personal representative of |
|
the estate to the extent the estate assets, excluding homestead and |
|
exempt property, exceed the known liabilities of the estate, |
|
excluding any liabilities secured by homestead and exempt property, |
|
if: |
|
(1) 30 days have elapsed since the date of the |
|
decedent's death; |
|
(2) no petition for the appointment of a personal |
|
representative is pending or has been granted; |
|
(3) the value of the estate assets, excluding |
|
homestead and exempt property, does not exceed $50,000; |
|
(4) an affidavit that meets the requirements of |
|
Section 205.002 is filed with the clerk of the court that has |
|
jurisdiction and venue of the estate; |
|
(5) the judge approves the affidavit as provided by |
|
Section 205.003; and |
|
(6) the distributees comply with Section 205.004. |
|
(Tex. Prob. Code, Sec. 137(a) (part).) |
|
Sec. 205.002. AFFIDAVIT REQUIREMENTS. An affidavit filed |
|
under Section 205.001 must: |
|
(1) be sworn to by: |
|
(A) two disinterested witnesses; |
|
(B) each distributee of the estate who has legal |
|
capacity; and |
|
(C) if warranted by the facts, the natural |
|
guardian or next of kin of any minor distributee or the guardian of |
|
any other incapacitated distributee; |
|
(2) show the existence of the conditions prescribed by |
|
Sections 205.001(1), (2), and (3); and |
|
(3) include: |
|
(A) a list of all known estate assets and |
|
liabilities; |
|
(B) the name and address of each distributee; and |
|
(C) the relevant family history facts concerning |
|
heirship that show each distributee's right to receive estate money |
|
or other property or to have any evidence of money, property, or |
|
other right of the estate as is determined to exist transferred to |
|
the distributee as an heir or assignee. (Tex. Prob. Code, Sec. |
|
137(a) (part).) |
|
Sec. 205.003. EXAMINATION AND APPROVAL OF AFFIDAVIT. The |
|
judge shall examine an affidavit filed under Section 205.001. The |
|
judge may approve the affidavit if the judge determines that the |
|
affidavit conforms to the requirements of this chapter. (Tex. |
|
Prob. Code, Sec. 137(a) (part).) |
|
Sec. 205.004. COPY OF AFFIDAVIT TO CERTAIN PERSONS. The |
|
distributees of the estate shall provide a copy of the affidavit |
|
under this chapter, certified by the court clerk, to each person |
|
who: |
|
(1) owes money to the estate; |
|
(2) has custody or possession of estate property; or |
|
(3) acts as a registrar, fiduciary, or transfer agent |
|
of or for an evidence of interest, indebtedness, property, or other |
|
right belonging to the estate. (Tex. Prob. Code, Sec. 137(a) |
|
(part).) |
|
Sec. 205.005. AFFIDAVIT AS LOCAL GOVERNMENT RECORD. (a) If |
|
the judge approves an affidavit under Section 205.003, the |
|
affidavit shall be maintained as a local government record under |
|
Subtitle C, Title 6, Local Government Code. |
|
(b) If the county does not maintain local government records |
|
in a manner authorized under Subtitle C, Title 6, Local Government |
|
Code, the county clerk shall provide and keep in the clerk's office |
|
an appropriate book labeled "Small Estates" in which the clerk |
|
shall, on payment of the legal recording fee, record each affidavit |
|
filed under this chapter. The small estates book must contain an |
|
accurate index that shows the decedent's name and references to any |
|
land involved. (Tex. Prob. Code, Sec. 137(d).) |
|
Sec. 205.006. TITLE TO HOMESTEAD TRANSFERRED UNDER |
|
AFFIDAVIT. (a) If a decedent's homestead is the only real property |
|
in the decedent's estate, title to the homestead may be transferred |
|
under an affidavit that meets the requirements of this chapter. The |
|
affidavit used to transfer title to the homestead must be recorded |
|
in the deed records of a county in which the homestead is located. |
|
(b) A bona fide purchaser for value may rely on an affidavit |
|
recorded under this section. A bona fide purchaser for value |
|
without actual or constructive notice of an heir who is not |
|
disclosed in the recorded affidavit acquires title to a homestead |
|
free of the interests of the undisclosed heir, but remains subject |
|
to any claim a creditor of the decedent has by law. A purchaser has |
|
constructive notice of an heir who is not disclosed in the recorded |
|
affidavit if an affidavit, judgment of heirship, or title |
|
transaction in the chain of title in the deed records identifies |
|
that heir as the decedent's heir. |
|
(c) An heir who is not disclosed in an affidavit recorded |
|
under this section may recover from an heir who receives |
|
consideration from a purchaser in a transfer for value of title to a |
|
homestead passing under the affidavit. (Tex. Prob. Code, Sec. |
|
137(c).) |
|
Sec. 205.007. LIABILITY OF CERTAIN PERSONS. (a) A person |
|
making a payment, delivery, transfer, or issuance under an |
|
affidavit described by this chapter is released to the same extent |
|
as if made to a personal representative of the decedent. The person |
|
may not be required to: |
|
(1) see to the application of the affidavit; or |
|
(2) inquire into the truth of any statement in the |
|
affidavit. |
|
(b) The distributees to whom payment, delivery, transfer, |
|
or issuance is made are: |
|
(1) answerable for the payment, delivery, transfer, or |
|
issuance to any person having a prior right; and |
|
(2) accountable to any personal representative |
|
appointed after the payment, delivery, transfer, or issuance. |
|
(c) Each person who executed the affidavit is liable for any |
|
damage or loss to any person that arises from a payment, delivery, |
|
transfer, or issuance made in reliance on the affidavit. |
|
(d) If a person to whom the affidavit is delivered refuses |
|
to pay, deliver, transfer, or issue property as provided by this |
|
section, the property may be recovered in an action brought for that |
|
purpose by or on behalf of the distributees entitled to the property |
|
on proof of the facts required to be stated in the affidavit. (Tex. |
|
Prob. Code, Sec. 138.) |
|
Sec. 205.008. EFFECT OF CHAPTER. (a) This chapter does not |
|
affect the disposition of property under a will or other |
|
testamentary document. |
|
(b) Except as provided by Section 205.006, this chapter does |
|
not transfer title to real property. (Tex. Prob. Code, Sec. |
|
137(b).) |
|
[Chapters 206-250 reserved for expansion] |
|
SUBTITLE F. WILLS |
|
CHAPTER 251. FUNDAMENTAL REQUIREMENTS AND PROVISIONS RELATING TO |
WILLS |
|
WILLS |
|
|
SUBCHAPTER A. WILL FORMATION |
|
|
Sec. 251.001. WHO MAY EXECUTE WILL |
|
Sec. |
251.002. INTERESTS THAT MAY PASS BY WILL; |
|
DISINHERITANCE |
|
[Sections 251.003-251.050 reserved for expansion] |
|
SUBCHAPTER B. WILL REQUIREMENTS |
|
|
Sec. 251.051. WRITTEN, SIGNED, AND ATTESTED |
|
Sec. 251.052. EXCEPTION FOR HOLOGRAPHIC WILLS |
|
[Sections 251.053-251.100 reserved for expansion] |
|
SUBCHAPTER C. SELF-PROVED WILLS |
|
|
Sec. 251.101. SELF-PROVED WILL |
|
Sec. |
251.102. PROBATE AND TREATMENT OF SELF-PROVED |
|
WILL |
|
Sec. |
251.103. PERIOD FOR MAKING ATTESTED WILLS |
|
SELF-PROVED |
|
Sec. 251.104. REQUIREMENTS FOR SELF-PROVING AFFIDAVIT |
|
Sec. |
251.105. EFFECT OF SIGNATURE ON SELF-PROVING |
|
AFFIDAVIT |
|
Sec. |
251.106. CONTEST, REVOCATION, OR AMENDMENT OF |
|
SELF-PROVED WILL |
|
Sec. 251.107. SELF-PROVED HOLOGRAPHIC WILL |
|
CHAPTER 251. FUNDAMENTAL REQUIREMENTS AND PROVISIONS RELATING TO |
|
WILLS |
|
SUBCHAPTER A. WILL FORMATION |
|
Sec. 251.001. WHO MAY EXECUTE WILL. Under the rules and |
|
limitations prescribed by law, a person of sound mind has the right |
|
and power to make a last will and testament if, at the time the will |
|
is made, the person: |
|
(1) is 18 years of age or older; |
|
(2) is or has been married; or |
|
(3) is a member of the armed forces of the United |
|
States, an auxiliary of the armed forces of the United States, or |
|
the United States Maritime Service. (Tex. Prob. Code, Sec. 57.) |
|
Sec. 251.002. INTERESTS THAT MAY PASS BY WILL; |
|
DISINHERITANCE. (a) Subject to limitations prescribed by law, a |
|
person competent to make a last will and testament may devise under |
|
the will and testament all the estate, right, title, and interest in |
|
property the person has at the time of the person's death. |
|
(b) A person who makes a last will and testament may: |
|
(1) disinherit an heir; and |
|
(2) direct the disposition of property or an interest |
|
passing under the will or by intestacy. (Tex. Prob. Code, Secs. |
|
58(a), (b).) |
|
[Sections 251.003-251.050 reserved for expansion] |
|
SUBCHAPTER B. WILL REQUIREMENTS |
|
Sec. 251.051. WRITTEN, SIGNED, AND ATTESTED. Except as |
|
otherwise provided by law, a last will and testament must be: |
|
(1) in writing; |
|
(2) signed by: |
|
(A) the testator in person; or |
|
(B) another person on behalf of the testator: |
|
(i) in the testator's presence; and |
|
(ii) under the testator's direction; and |
|
(3) attested by two or more credible witnesses who are |
|
at least 14 years of age and who subscribe their names to the will in |
|
their own handwriting in the testator's presence. (Tex. Prob. |
|
Code, Sec. 59(a) (part).) |
|
Sec. 251.052. EXCEPTION FOR HOLOGRAPHIC WILLS. |
|
Notwithstanding Section 251.051, a will written wholly in the |
|
testator's handwriting is not required to be attested by |
|
subscribing witnesses. (Tex. Prob. Code, Secs. 59(a) (part), 60 |
|
(part).) |
|
[Sections 251.053-251.100 reserved for expansion] |
|
SUBCHAPTER C. SELF-PROVED WILLS |
|
Sec. 251.101. SELF-PROVED WILL. A will to which a |
|
self-proving affidavit subscribed and sworn to by the testator and |
|
witnesses is attached or annexed is a self-proved will. (Tex. Prob. |
|
Code, Sec. 59(b) (part).) |
|
Sec. 251.102. PROBATE AND TREATMENT OF SELF-PROVED WILL. |
|
(a) A self-proved will may be admitted to probate without the |
|
testimony of any subscribing witnesses if the testator and |
|
witnesses execute a self-proving affidavit. |
|
(b) A self-proved will may not otherwise be treated |
|
differently than a will that is not self-proved. (Tex. Prob. Code, |
|
Secs. 59(a) (part), (c) (part).) |
|
Sec. 251.103. PERIOD FOR MAKING ATTESTED WILLS SELF-PROVED. |
|
A will or testament that meets the requirements of Section 251.051 |
|
may be made self-proved at: |
|
(1) the time of the execution of the will or testament; |
|
or |
|
(2) a later date during the lifetime of the testator |
|
and the witnesses. (Tex. Prob. Code, Sec. 59(a) (part).) |
|
Sec. 251.104. REQUIREMENTS FOR SELF-PROVING AFFIDAVIT. (a) |
|
An affidavit that is in form and content substantially as provided |
|
by Subsection (e) is a self-proving affidavit. |
|
(b) A self-proving affidavit must be made by the testator |
|
and by the attesting witnesses before an officer authorized to |
|
administer oaths under the laws of this state. The officer shall |
|
affix the officer's official seal to the self-proving affidavit. |
|
(c) The self-proving affidavit shall be attached or annexed |
|
to the will or testament. |
|
(d) An affidavit that is in substantial compliance with the |
|
form of the affidavit provided by Subsection (e), that is |
|
subscribed and acknowledged by the testator, and that is |
|
subscribed and sworn to by the attesting witnesses is sufficient to |
|
self-prove the will. No other affidavit or certificate of a |
|
testator is required to self-prove a will or testament other than |
|
the affidavit provided by Subsection (e). |
|
(e) The form and content of the self-proving affidavit must |
|
be substantially as follows: |
|
THE STATE OF TEXAS |
|
COUNTY OF ________________ |
|
Before me, the undersigned authority, on this day personally |
|
appeared _______________, _______________, and _______________, |
|
known to me to be the testator and the witnesses, respectively, |
|
whose names are subscribed to the annexed or foregoing instrument |
|
in their respective capacities, and, all of said persons being by me |
|
duly sworn, the said _______________, testator, declared to me and |
|
to the said witnesses in my presence that said instrument is |
|
[his/her] last will and testament, and that [he/she] had willingly |
|
made and executed it as [his/her] free act and deed; and the said |
|
witnesses, each on [his/her] oath stated to me, in the presence and |
|
hearing of the said testator, that the said testator had declared to |
|
them that said instrument is [his/her] last will and testament, and |
|
that [he/she] executed same as such and wanted each of them to sign |
|
it as a witness; and upon their oaths each witness stated further |
|
that they did sign the same as witnesses in the presence of the said |
|
testator and at [his/her] request; that [he/she] was at that time |
|
eighteen years of age or over (or being under such age, was or had |
|
been lawfully married, or was then a member of the armed forces of |
|
the United States, or an auxiliary of the armed forces of the United |
|
States, or the United States Maritime Service) and was of sound |
|
mind; and that each of said witnesses was then at least fourteen |
|
years of age. |
|
_______________ |
|
Testator |
|
_______________ |
|
Witness |
|
_______________ |
|
Witness |
|
Subscribed and sworn to before me by the said ____________, |
|
testator, and by the said ________________ and _______________, |
|
witnesses, this ______ day of ________________ A.D. |
|
________________. |
|
(SEAL) |
|
(Signed) ______________________________ |
|
(Official Capacity of Officer) |
|
(Tex. Prob. Code, Secs. 59(a) (part), (b) (part).) |
|
Sec. 251.105. EFFECT OF SIGNATURE ON SELF-PROVING |
|
AFFIDAVIT. A signature on a self-proving affidavit is considered a |
|
signature to the will if necessary to prove that the will was signed |
|
by the testator or witnesses or both, except that, in that case, the |
|
will may not be considered a self-proved will. (Tex. Prob. Code, |
|
Sec. 59(b) (part).) |
|
Sec. 251.106. CONTEST, REVOCATION, OR AMENDMENT OF |
|
SELF-PROVED WILL. A self-proved will may be contested, revoked, or |
|
amended by a codicil in the same manner as a will that is not |
|
self-proved. (Tex. Prob. Code, Sec. 59(c) (part).) |
|
Sec. 251.107. SELF-PROVED HOLOGRAPHIC WILL. |
|
Notwithstanding any other provision of this subchapter, a will |
|
written wholly in the testator's handwriting may be made |
|
self-proved at any time during the testator's lifetime by the |
|
attachment or annexation to the will of an affidavit by the testator |
|
to the effect that: |
|
(1) the instrument is the testator's last will; |
|
(2) the testator was 18 years of age or older at the |
|
time the will was executed or, if the testator was younger than 18 |
|
years of age, that the testator: |
|
(A) was or had been married; or |
|
(B) was a member of the armed forces of the United |
|
States, an auxiliary of the armed forces of the United States, or |
|
the United States Maritime Service at the time the will was |
|
executed; |
|
(3) the testator was of sound mind; and |
|
(4) the testator has not revoked the will. (Tex. Prob. |
|
Code, Sec. 60 (part).) |
|
CHAPTER 252. SAFEKEEPING AND CUSTODY OF WILLS |
|
|
SUBCHAPTER A. DEPOSIT OF WILL WITH COUNTY CLERK |
|
|
Sec. 252.001. WILL DEPOSIT; CERTIFICATE |
|
Sec. 252.002. SEALED WRAPPER REQUIRED |
|
Sec. |
252.003. NUMBERING OF FILED WILLS AND |
|
CORRESPONDING CERTIFICATES |
|
Sec. 252.004. INDEX |
|
[Sections 252.005-252.050 reserved for expansion] |
|
SUBCHAPTER B. WILL DELIVERY DURING LIFE OF TESTATOR |
|
|
Sec. 252.051. WILL DELIVERY |
|
Sec. |
252.052. SURRENDER OF CERTIFICATE OF DEPOSIT; |
|
EXCEPTION |
|
[Sections 252.053-252.100 reserved for expansion] |
|
SUBCHAPTER C. ACTIONS BY COUNTY CLERK ON DEATH OF TESTATOR |
|
|
Sec. 252.101. NOTIFICATION BY COUNTY CLERK |
|
Sec. 252.102. WILL DELIVERY ON TESTATOR'S DEATH |
|
Sec. 252.103. INSPECTION OF WILL BY COUNTY CLERK |
|
Sec. 252.104. NOTICE AND DELIVERY OF WILL TO EXECUTOR |
|
Sec. 252.105. NOTICE AND DELIVERY OF WILL TO DEVISEES |
|
[Sections 252.106-252.150 reserved for expansion] |
|
SUBCHAPTER D. LEGAL EFFECT OF WILL DEPOSIT |
|
|
Sec. 252.151. DEPOSIT HAS NO LEGAL SIGNIFICANCE |
|
Sec. |
252.152. PRIOR DEPOSITED WILL IN RELATION TO |
|
LATER WILL |
|
Sec. 252.153. WILL DEPOSIT DOES NOT CONSTITUTE NOTICE |
|
[Sections 252.154-252.200 reserved for expansion] |
|
SUBCHAPTER E. DUTY AND LIABILITY OF CUSTODIAN OF ESTATE PAPERS |
|
|
Sec. 252.201. WILL DELIVERY |
|
Sec. |
252.202. PERSONAL SERVICE ON CUSTODIAN OF ESTATE |
|
PAPERS |
|
Sec. 252.203. ARREST; CONFINEMENT |
|
Sec. 252.204. DAMAGES |
|
CHAPTER 252. SAFEKEEPING AND CUSTODY OF WILLS |
|
SUBCHAPTER A. DEPOSIT OF WILL WITH COUNTY CLERK |
|
Sec. 252.001. WILL DEPOSIT; CERTIFICATE. (a) A testator, |
|
or another person for the testator, may deposit the testator's will |
|
with the county clerk of the county of the testator's residence. |
|
Before accepting the will for deposit, the clerk may require proof |
|
satisfactory to the clerk concerning the testator's identity and |
|
residence. |
|
(b) The county clerk shall receive and keep the will on the |
|
payment of a $5 fee. |
|
(c) On the deposit of the will, the county clerk shall issue |
|
a certificate of deposit for the will. (Tex. Prob. Code, Sec. 71(a) |
|
(part).) |
|
Sec. 252.002. SEALED WRAPPER REQUIRED. (a) A will intended |
|
to be deposited with a county clerk shall be enclosed in a sealed |
|
wrapper. |
|
(b) The wrapper must be endorsed with: |
|
(1) "Will of," followed by the name, address, and |
|
signature of the testator; and |
|
(2) the name and current address of each person who is |
|
to be notified of the deposit of the will after the testator's |
|
death. (Tex. Prob. Code, Sec. 71(b).) |
|
Sec. 252.003. NUMBERING OF FILED WILLS AND CORRESPONDING |
|
CERTIFICATES. (a) A county clerk shall number wills deposited with |
|
the clerk in consecutive order. |
|
(b) A certificate of deposit issued under Section |
|
252.001(c) on receipt of a will must bear the same number as the |
|
will for which the certificate is issued. (Tex. Prob. Code, Sec. |
|
71(a) (part).) |
|
Sec. 252.004. INDEX. A county clerk shall keep an index of |
|
all wills deposited with the clerk under Section 252.001. (Tex. |
|
Prob. Code, Sec. 71(c).) |
|
[Sections 252.005-252.050 reserved for expansion] |
|
SUBCHAPTER B. WILL DELIVERY DURING LIFE OF TESTATOR |
|
Sec. 252.051. WILL DELIVERY. During the lifetime of the |
|
testator, a will deposited with a county clerk under Subchapter A |
|
may be delivered only to: |
|
(1) the testator; or |
|
(2) another person authorized by the testator by a |
|
sworn written order. (Tex. Prob. Code, Sec. 71(d) (part).) |
|
Sec. 252.052. SURRENDER OF CERTIFICATE OF DEPOSIT; |
|
EXCEPTION. (a) Except as provided by Subsection (b), on delivery |
|
of a will to the testator or a person authorized by the testator |
|
under Section 252.051, the certificate of deposit issued for the |
|
will must be surrendered by the person to whom delivery of the will |
|
is made. |
|
(b) A county clerk may instead accept and file an affidavit |
|
by the testator stating that the certificate of deposit issued for |
|
the will has been lost, stolen, or destroyed. (Tex. Prob. Code, |
|
Sec. 71(d) (part).) |
|
[Sections 252.053-252.100 reserved for expansion] |
|
SUBCHAPTER C. ACTIONS BY COUNTY CLERK ON DEATH OF TESTATOR |
|
Sec. 252.101. NOTIFICATION BY COUNTY CLERK. A county clerk |
|
shall notify, by registered mail, return receipt requested, each |
|
person named on the endorsement of the will wrapper that the will is |
|
on deposit in the clerk's office if: |
|
(1) an affidavit is submitted to the clerk stating |
|
that the testator has died; or |
|
(2) the clerk receives other notice or proof of the |
|
testator's death sufficient to convince the clerk that the testator |
|
has died. (Tex. Prob. Code, Sec. 71(e) (part).) |
|
Sec. 252.102. WILL DELIVERY ON TESTATOR'S DEATH. On the |
|
request of one or more persons notified under Section 252.101, the |
|
county clerk shall deliver the will that is the subject of the |
|
notice to the person or persons. The clerk shall obtain a receipt |
|
for delivery of the will. (Tex. Prob. Code, Sec. 71(e) (part).) |
|
Sec. 252.103. INSPECTION OF WILL BY COUNTY CLERK. A county |
|
clerk shall open a will wrapper and inspect the will if: |
|
(1) the notice required by Section 252.101 is returned |
|
as undelivered; or |
|
(2) the clerk has accepted for deposit a will that does |
|
not specify on the will wrapper the person to whom the will is to be |
|
delivered on the testator's death. (Tex. Prob. Code, Sec. 71(e) |
|
(part).) |
|
Sec. 252.104. NOTICE AND DELIVERY OF WILL TO EXECUTOR. If a |
|
county clerk inspects a will under Section 252.103 and the will |
|
names an executor, the clerk shall: |
|
(1) notify the person named as executor, by registered |
|
mail, return receipt requested, that the will is on deposit with the |
|
clerk; and |
|
(2) deliver, on request, the will to the person named |
|
as executor. (Tex. Prob. Code, Sec. 71(e) (part).) |
|
Sec. 252.105. NOTICE AND DELIVERY OF WILL TO DEVISEES. (a) |
|
If a county clerk inspects a will under Section 252.103, the clerk |
|
shall notify by registered mail, return receipt requested, the |
|
devisees named in the will that the will is on deposit with the |
|
clerk if: |
|
(1) the will does not name an executor; |
|
(2) the person named as executor in the will: |
|
(A) has died; or |
|
(B) fails to take the will before the 31st day |
|
after the date the notice required by Section 252.104 is mailed to |
|
the person; or |
|
(3) the notice mailed to the person named as executor |
|
is returned as undelivered. |
|
(b) On request, the county clerk shall deliver the will to |
|
any or all of the devisees notified under Subsection (a). (Tex. |
|
Prob. Code, Sec. 71(e) (part).) |
|
[Sections 252.106-252.150 reserved for expansion] |
|
SUBCHAPTER D. LEGAL EFFECT OF WILL DEPOSIT |
|
Sec. 252.151. DEPOSIT HAS NO LEGAL SIGNIFICANCE. The |
|
provisions of Subchapter A providing for the deposit of a will with |
|
a county clerk during the lifetime of a testator are solely for the |
|
purpose of providing a safe and convenient repository for a will. |
|
For purposes of probate, a will deposited as provided by Subchapter |
|
A may not be treated differently than a will that has not been |
|
deposited. (Tex. Prob. Code, Sec. 71(f) (part).) |
|
Sec. 252.152. PRIOR DEPOSITED WILL IN RELATION TO LATER |
|
WILL. A will that is not deposited as provided by Subchapter A |
|
shall be admitted to probate on proof that the will is the last will |
|
and testament of the testator, notwithstanding the fact that the |
|
testator has a prior will that has been deposited in accordance with |
|
Subchapter A. (Tex. Prob. Code, Sec. 71(f) (part).) |
|
Sec. 252.153. WILL DEPOSIT DOES NOT CONSTITUTE NOTICE. The |
|
deposit of a will as provided by Subchapter A does not constitute |
|
notice, constructive or otherwise, to any person as to the |
|
existence or the contents of the will. (Tex. Prob. Code, Sec. |
|
71(g).) |
|
[Sections 252.154-252.200 reserved for expansion] |
|
SUBCHAPTER E. DUTY AND LIABILITY OF CUSTODIAN OF ESTATE PAPERS |
|
Sec. 252.201. WILL DELIVERY. On receiving notice of a |
|
testator's death, the person who has custody of the testator's will |
|
shall deliver the will to the clerk of the court that has |
|
jurisdiction of the testator's estate. (Tex. Prob. Code, Sec. 75 |
|
(part).) |
|
Sec. 252.202. PERSONAL SERVICE ON CUSTODIAN OF ESTATE |
|
PAPERS. On a sworn written complaint that a person has custody of |
|
the last will of a testator or any papers belonging to the estate of |
|
a testator or intestate, the judge of the court that has |
|
jurisdiction of the estate shall have the person cited by personal |
|
service to appear and show cause why the person should not deliver: |
|
(1) the will to the court for probate; or |
|
(2) the papers to the executor or administrator. |
|
(Tex. Prob. Code, Sec. 75 (part).) |
|
Sec. 252.203. ARREST; CONFINEMENT. On the return of a |
|
citation served under Section 252.202, if the judge is satisfied |
|
that the person served with the citation had custody of the will or |
|
papers at the time the complaint under that section was filed and |
|
the person does not deliver the will or papers or show good cause |
|
why the will or papers have not been delivered, the judge may have |
|
the person arrested and confined until the person delivers the will |
|
or papers. (Tex. Prob. Code, Sec. 75 (part).) |
|
Sec. 252.204. DAMAGES. (a) A person who refuses to deliver |
|
a will or papers described by Section 252.202 is liable to any |
|
person aggrieved by the refusal for all damages sustained as a |
|
result of the refusal. |
|
(b) Damages may be recovered under this section in any court |
|
of competent jurisdiction. (Tex. Prob. Code, Sec. 75 (part).) |
|
CHAPTER 253. CHANGE AND REVOCATION OF WILLS |
|
|
Sec. 253.001. COURT MAY NOT PROHIBIT CHANGING A WILL |
|
Sec. 253.002. REVOCATION OF WILL |
|
CHAPTER 253. CHANGE AND REVOCATION OF WILLS |
|
Sec. 253.001. COURT MAY NOT PROHIBIT CHANGING A WILL. (a) |
|
Notwithstanding Section 22.007(a), in this section, "court" means a |
|
constitutional county court, district court, or statutory county |
|
court, including a statutory probate court. |
|
(b) A court may not prohibit a person from executing a new |
|
will or a codicil to an existing will. (Tex. Prob. Code, Sec. 69A.) |
|
Sec. 253.002. REVOCATION OF WILL. A written will, or a |
|
clause or devise in a written will, may not be revoked, except by a |
|
subsequent will, codicil, or declaration in writing that is |
|
executed with like formalities, or by the testator destroying or |
|
canceling the same, or causing it to be destroyed or canceled in the |
|
testator's presence. (Tex. Prob. Code, Sec. 63.) |
|
CHAPTER 254. VALIDITY OF CERTAIN PROVISIONS IN, AND CONTRACTS |
RELATING TO, WILLS |
|
RELATING TO, WILLS |
|
|
Sec. 254.001. DEVISES TO TRUSTEES |
|
Sec. |
254.002. BEQUESTS TO CERTAIN SUBSCRIBING |
|
WITNESSES |
|
Sec. |
254.003. DEVISES TO CERTAIN ATTORNEYS AND OTHER |
|
PERSONS |
|
Sec. |
254.004. CONTRACTS CONCERNING WILLS OR DEVISES; |
|
JOINT OR RECIPROCAL WILLS |
|
CHAPTER 254. VALIDITY OF CERTAIN PROVISIONS IN, AND CONTRACTS |
|
RELATING TO, WILLS |
|
Sec. 254.001. DEVISES TO TRUSTEES. (a) A testator may |
|
validly devise property in a will to the trustee of a trust |
|
established or to be established: |
|
(1) during the testator's lifetime by the testator, |
|
the testator and another person, or another person, including a |
|
funded or unfunded life insurance trust in which the settlor has |
|
reserved any or all rights of ownership of the insurance contracts; |
|
or |
|
(2) at the testator's death by the testator's devise to |
|
the trustee, regardless of the existence, size, or character of the |
|
corpus of the trust, if: |
|
(A) the trust is identified in the testator's |
|
will; and |
|
(B) the terms of the trust are in: |
|
(i) a written instrument, other than a |
|
will, executed before, with, or after the execution of the |
|
testator's will; or |
|
(ii) another person's will if that person |
|
predeceased the testator. |
|
(b) A devise under Subsection (a) is not invalid because the |
|
trust: |
|
(1) is amendable or revocable; or |
|
(2) was amended after the execution of the will or the |
|
testator's death. |
|
(c) Unless the testator's will provides otherwise, property |
|
devised to a trust described by Subsection (a) is not held under a |
|
testamentary trust of the testator. The property: |
|
(1) becomes part of the trust to which the property is |
|
devised; and |
|
(2) must be administered and disposed of according to |
|
the provisions of the instrument establishing the trust, including |
|
any amendment to the instrument made before or after the testator's |
|
death. |
|
(d) Unless the testator's will provides otherwise, a |
|
revocation or termination of the trust before the testator's death |
|
causes the devise to lapse. (Tex. Prob. Code, Sec. 58a.) |
|
Sec. 254.002. BEQUESTS TO CERTAIN SUBSCRIBING WITNESSES. |
|
(a) Except as provided by Subsection (c), if a devisee under a will |
|
is also a subscribing witness to the will and the will cannot be |
|
otherwise established: |
|
(1) the bequest is void; and |
|
(2) the subscribing witness shall be allowed and |
|
compelled to appear and give the witness's testimony in the same |
|
manner as if the bequest to the witness had not been made. |
|
(b) Notwithstanding Subsection (a), if the subscribing |
|
witness described by that subsection would have been entitled to a |
|
share of the testator's estate had the testator died intestate, the |
|
witness is entitled to as much of that share as does not exceed the |
|
value of the bequest to the witness under the will. |
|
(c) If the testimony of a subscribing witness described by |
|
Subsection (a) proving the will is corroborated by at least one |
|
disinterested and credible person who testifies that the |
|
subscribing witness's testimony is true and correct: |
|
(1) the bequest to the subscribing witness is not void |
|
under Subsection (a); and |
|
(2) the subscribing witness is not regarded as an |
|
incompetent or noncredible witness under Subchapters B and C, |
|
Chapter 251. (Tex. Prob. Code, Secs. 61, 62.) |
|
Sec. 254.003. DEVISES TO CERTAIN ATTORNEYS AND OTHER |
|
PERSONS. (a) A devise of property in a will is void if the devise |
|
is made to: |
|
(1) an attorney who prepares or supervises the |
|
preparation of the will; |
|
(2) a parent, descendant of a parent, or employee of |
|
the attorney described by Subdivision (1); or |
|
(3) the spouse of a person described by Subdivision |
|
(1) or (2). |
|
(b) This section does not apply to: |
|
(1) a devise made to a person who: |
|
(A) is the testator's spouse; |
|
(B) is an ascendant or descendant of the |
|
testator; or |
|
(C) is related within the third degree by |
|
consanguinity or affinity to the testator; or |
|
(2) a bona fide purchaser for value from a devisee in a |
|
will. (Tex. Prob. Code, Sec. 58b.) |
|
Sec. 254.004. CONTRACTS CONCERNING WILLS OR DEVISES; JOINT |
|
OR RECIPROCAL WILLS. (a) A contract executed or entered into on or |
|
after September 1, 1979, to make a will or devise, or not to revoke a |
|
will or devise, may be established only by: |
|
(1) a written agreement that is binding and |
|
enforceable; or |
|
(2) a will stating: |
|
(A) that a contract exists; and |
|
(B) the material provisions of the contract. |
|
(b) The execution of a joint will or reciprocal wills does |
|
not constitute by itself sufficient evidence of the existence of a |
|
contract. (Tex. Prob. Code, Sec. 59A.) |
|
CHAPTER 255. CONSTRUCTION AND INTERPRETATION OF WILLS |
|
|
SUBCHAPTER A. CERTAIN PERSONAL PROPERTY EXCLUDED FROM DEVISE OR |
LEGACY |
|
LEGACY |
|
|
Sec. 255.001. DEFINITIONS |
|
Sec. |
255.002. CERTAIN PERSONAL PROPERTY EXCLUDED FROM |
|
DEVISE OF REAL PROPERTY |
|
Sec. |
255.003. CONTENTS EXCLUDED FROM LEGACY OF |
|
PERSONAL PROPERTY |
|
[Sections 255.004-255.050 reserved for expansion] |
|
SUBCHAPTER B. SUCCESSION BY PRETERMITTED CHILD |
|
|
Sec. 255.051. DEFINITION |
|
Sec. 255.052. APPLICABILITY AND CONSTRUCTION |
|
Sec. |
255.053. SUCCESSION BY PRETERMITTED CHILD IF |
|
|
|
|
EXECUTION |
|
Sec. |
255.054. SUCCESSION BY PRETERMITTED CHILD IF |
|
|
|
|
EXECUTION |
|
Sec. |
255.055. RATABLE RECOVERY BY PRETERMITTED CHILD |
|
|
|
|
BENEFICIARIES |
|
[Sections 255.056-255.100 reserved for expansion] |
|
SUBCHAPTER C. |
LIFETIME GIFTS AS SATISFACTION OF DEVISE |
|
Sec. |
255.101. CERTAIN LIFETIME GIFTS CONSIDERED |
|
SATISFACTION OF DEVISE |
|
Sec. 255.102. VALUATION OF PROPERTY |
|
[Sections 255.103-255.150 reserved for expansion] |
|
SUBCHAPTER D. FAILURE OF DEVISE; DISPOSITION OF PROPERTY TO |
DEVISEE WHO PREDECEASES TESTATOR |
|
DEVISEE WHO PREDECEASES TESTATOR |
|
|
Sec. 255.151. APPLICABILITY OF SUBCHAPTER |
|
Sec. |
255.152. FAILURE OF DEVISE; EFFECT ON RESIDUARY |
|
ESTATE |
|
Sec. |
255.153. DISPOSITION OF PROPERTY TO CERTAIN |
|
DEVISEES WHO PREDECEASE TESTATOR |
|
Sec. 255.154. DEVISEE UNDER CLASS GIFT |
|
[Sections 255.155-255.200 reserved for expansion] |
|
SUBCHAPTER E. WILL PROVISION FOR MANAGEMENT OF SEPARATE PROPERTY |
BY SURVIVING SPOUSE |
|
BY SURVIVING SPOUSE |
|
|
Sec. |
255.201. MANAGEMENT OF SEPARATE PROPERTY BY |
|
SURVIVING SPOUSE |
|
[Sections 255.202-255.250 reserved for expansion] |
|
SUBCHAPTER F. DEVISE OF SECURITIES |
|
|
Sec. 255.251. DEFINITIONS |
|
Sec. 255.252. INCREASE IN SECURITIES; ACCESSIONS |
|
Sec. 255.253. CASH DISTRIBUTION NOT INCLUDED IN DEVISE |
|
[Sections 255.254-255.300 reserved for expansion] |
|
SUBCHAPTER G. EXONERATION OF DEBTS SECURED BY SPECIFIC DEVISES |
|
|
Sec. 255.301. NO RIGHT TO EXONERATION OF DEBTS |
|
Sec. 255.302. EXCEPTION |
|
Sec. |
255.303. RIGHTS OF CERTAIN CREDITORS AND OTHER |
|
PERSONS |
|
[Sections 255.304-255.350 reserved for expansion] |
|
SUBCHAPTER H. |
EXERCISE OF POWER OF APPOINTMENT THROUGH WILL |
|
Sec. |
255.351. EXERCISE OF POWER OF APPOINTMENT THROUGH |
|
WILL |
|
CHAPTER 255. CONSTRUCTION AND INTERPRETATION OF WILLS |
|
SUBCHAPTER A. CERTAIN PERSONAL PROPERTY EXCLUDED FROM DEVISE OR |
|
LEGACY |
|
Sec. 255.001. DEFINITIONS. In this subchapter: |
|
(1) "Contents" means tangible personal property, |
|
other than titled personal property, found inside of or on a |
|
specifically devised item. The term includes clothing, pictures, |
|
furniture, coin collections, and other items of tangible personal |
|
property that: |
|
(A) do not require a formal transfer of title; |
|
and |
|
(B) are located in another item of tangible |
|
personal property such as a cedar chest or other furniture. |
|
(2) "Titled personal property" includes all tangible |
|
personal property represented by a certificate of title, |
|
certificate of ownership, written label, marking, or designation |
|
that signifies ownership by a person. The term includes a motor |
|
vehicle, motor home, motorboat, or other similar property that |
|
requires a formal transfer of title. (Tex. Prob. Code, Sec. 58(d).) |
|
Sec. 255.002. CERTAIN PERSONAL PROPERTY EXCLUDED FROM |
|
DEVISE OF REAL PROPERTY. A devise of real property does not include |
|
any personal property located on, or associated with, the real |
|
property or any contents of personal property located on the real |
|
property unless the will directs that the personal property or |
|
contents are included in the devise. (Tex. Prob. Code, Sec. 58(c) |
|
(part).) |
|
Sec. 255.003. CONTENTS EXCLUDED FROM LEGACY OF PERSONAL |
|
PROPERTY. A legacy of personal property does not include any |
|
contents of the property unless the will directs that the contents |
|
are included in the legacy. (Tex. Prob. Code, Sec. 58(c) (part).) |
|
[Sections 255.004-255.050 reserved for expansion] |
|
SUBCHAPTER B. SUCCESSION BY PRETERMITTED CHILD |
|
Sec. 255.051. DEFINITION. In this subchapter, |
|
"pretermitted child" means a testator's child who is born or |
|
adopted: |
|
(1) during the testator's lifetime or after the |
|
testator's death; and |
|
(2) after the execution of the testator's will. (Tex. |
|
Prob. Code, Sec. 67(c).) |
|
Sec. 255.052. APPLICABILITY AND CONSTRUCTION. (a) |
|
Sections 255.053 and 255.054 apply only to a pretermitted child who |
|
is not: |
|
(1) mentioned in the testator's will; |
|
(2) provided for in the testator's will; or |
|
(3) otherwise provided for by the testator. |
|
(b) For purposes of this subchapter, a child is provided for |
|
or a provision is made for a child if a disposition of property to or |
|
for the benefit of the pretermitted child, whether vested or |
|
contingent, is made: |
|
(1) in the testator's will, including a devise to a |
|
trustee under Section 254.001; or |
|
(2) outside the testator's will and is intended to take |
|
effect at the testator's death. (Tex. Prob. Code, Secs. 67(a) |
|
(part), (d).) |
|
Sec. 255.053. SUCCESSION BY PRETERMITTED CHILD IF TESTATOR |
|
HAS LIVING CHILD AT WILL'S EXECUTION. (a) If no provision is made |
|
in the testator's last will for any child of the testator who is |
|
living when the testator executes the will, a pretermitted child |
|
succeeds to the portion of the testator's separate and community |
|
estate, other than any portion of the estate devised to the |
|
pretermitted child's other parent, to which the pretermitted child |
|
would have been entitled under Section 201.001 if the testator had |
|
died intestate without a surviving spouse. |
|
(b) If a provision, whether vested or contingent, is made in |
|
the testator's last will for one or more children of the testator |
|
who are living when the testator executes the will, a pretermitted |
|
child is entitled only to a portion of the disposition made to |
|
children under the will that is equal to the portion the child would |
|
have received if the testator had: |
|
(1) included all of the testator's pretermitted |
|
children with the children on whom benefits were conferred under |
|
the will; and |
|
(2) given an equal share of those benefits to each |
|
child. |
|
(c) To the extent feasible, the interest in the testator's |
|
estate to which the pretermitted child is entitled under Subsection |
|
(b) must be of the same character, whether an equitable or legal |
|
life estate or in fee, as the interest that the testator conferred |
|
on the testator's children under the will. (Tex. Prob. Code, Sec. |
|
67(a)(1).) |
|
Sec. 255.054. SUCCESSION BY PRETERMITTED CHILD IF TESTATOR |
|
HAS NO LIVING CHILD AT WILL'S EXECUTION. If a testator has no child |
|
living when the testator executes the testator's last will, a |
|
pretermitted child succeeds to the portion of the testator's |
|
separate and community estate, other than any portion of the estate |
|
devised to the pretermitted child's other parent, to which the |
|
pretermitted child would have been entitled under Section 201.001 |
|
if the testator had died intestate without a surviving spouse. |
|
(Tex. Prob. Code, Sec. 67(a)(2).) |
|
Sec. 255.055. RATABLE RECOVERY BY PRETERMITTED CHILD FROM |
|
PORTIONS PASSING TO OTHER BENEFICIARIES. (a) A pretermitted child |
|
may recover the share of the testator's estate to which the child is |
|
entitled from the testator's other children under Section |
|
255.053(b) or from the testamentary beneficiaries under Sections |
|
255.053(a) and 255.054, other than the pretermitted child's other |
|
parent, ratably, out of the portions of the estate passing to those |
|
persons under the will. |
|
(b) In abating the interests of the beneficiaries described |
|
by Subsection (a), the character of the testamentary plan adopted |
|
by the testator must be preserved to the maximum extent possible. |
|
(Tex. Prob. Code, Sec. 67(b).) |
|
[Sections 255.056-255.100 reserved for expansion] |
|
SUBCHAPTER C. LIFETIME GIFTS AS SATISFACTION OF DEVISE |
|
Sec. 255.101. CERTAIN LIFETIME GIFTS CONSIDERED |
|
SATISFACTION OF DEVISE. Property that a testator gives to a person |
|
during the testator's lifetime is considered a satisfaction, either |
|
wholly or partly, of a devise to the person if: |
|
(1) the testator's will provides for deduction of the |
|
lifetime gift from the devise; |
|
(2) the testator declares in a contemporaneous writing |
|
that the lifetime gift is to be deducted from, or is in satisfaction |
|
of, the devise; or |
|
(3) the devisee acknowledges in writing that the |
|
lifetime gift is in satisfaction of the devise. (Tex. Prob. Code, |
|
Sec. 37C(a).) |
|
Sec. 255.102. VALUATION OF PROPERTY. Property given in |
|
partial satisfaction of a devise shall be valued as of the earlier |
|
of: |
|
(1) the date the devisee acquires possession of or |
|
enjoys the property; or |
|
(2) the date of the testator's death. (Tex. Prob. |
|
Code, Sec. 37C(b).) |
|
[Sections 255.103-255.150 reserved for expansion] |
|
SUBCHAPTER D. FAILURE OF DEVISE; DISPOSITION OF PROPERTY TO |
|
DEVISEE WHO PREDECEASES TESTATOR |
|
Sec. 255.151. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
applies unless the testator's last will and testament provides |
|
otherwise. For example, a devise in the testator's will stating "to |
|
my surviving children" or "to such of my children as shall survive |
|
me" prevents the application of Sections 255.153 and 255.154. |
|
(Tex. Prob. Code, Sec. 68(e).) |
|
Sec. 255.152. FAILURE OF DEVISE; EFFECT ON RESIDUARY |
|
ESTATE. (a) Except as provided by Sections 255.153 and 255.154, if |
|
a devise, other than a residuary devise, fails for any reason, the |
|
devise becomes a part of the residuary estate. |
|
(b) Except as provided by Sections 255.153 and 255.154, if |
|
the residuary estate is devised to two or more persons and the share |
|
of one of the residuary devisees fails for any reason, that |
|
residuary devisee's share passes to the other residuary devisees, |
|
in proportion to the residuary devisee's interest in the residuary |
|
estate. |
|
(c) Except as provided by Sections 255.153 and 255.154, the |
|
residuary estate passes as if the testator had died intestate if all |
|
residuary devisees: |
|
(1) are deceased at the time the testator's will is |
|
executed; |
|
(2) fail to survive the testator; or |
|
(3) are treated as if the residuary devisees |
|
predeceased the testator. (Tex. Prob. Code, Secs. 68(b), (c), (d).) |
|
Sec. 255.153. DISPOSITION OF PROPERTY TO CERTAIN DEVISEES |
|
WHO PREDECEASE TESTATOR. (a) If a devisee who is a descendant of |
|
the testator or a descendant of a testator's parent is deceased at |
|
the time the will is executed, fails to survive the testator, or is |
|
treated as if the devisee predeceased the testator by Chapter 121 or |
|
otherwise, the descendants of the devisee who survived the testator |
|
by 120 hours take the devised property in place of the devisee. |
|
(b) Devised property to which Subsection (a) applies shall |
|
be divided into the number of shares equal to the total number of |
|
surviving descendants in the nearest degree of kinship to the |
|
devisee and deceased persons in the same degree of kinship to the |
|
devisee whose descendants survived the testator. Each surviving |
|
descendant in the nearest degree of kinship to the devisee receives |
|
one share, and the share of each deceased person in the same degree |
|
of kinship to the devisee whose descendants survived the testator |
|
is divided among the descendants by representation. (Tex. Prob. |
|
Code, Sec. 68(a) (part).) |
|
Sec. 255.154. DEVISEE UNDER CLASS GIFT. For purposes of |
|
this subchapter, a person who would have been a devisee under a |
|
class gift if the person had survived the testator is treated as a |
|
devisee unless the person died before the date the will was |
|
executed. (Tex. Prob. Code, Sec. 68(a) (part).) |
|
[Sections 255.155-255.200 reserved for expansion] |
|
SUBCHAPTER E. WILL PROVISION FOR MANAGEMENT OF SEPARATE PROPERTY |
|
BY SURVIVING SPOUSE |
|
Sec. 255.201. MANAGEMENT OF SEPARATE PROPERTY BY SURVIVING |
|
SPOUSE. (a) Subject to Subsection (b) and any other restrictions |
|
imposed by the will, a spouse by last will and testament may give to |
|
the survivor of the marriage the power to: |
|
(1) keep the testator's separate property together |
|
until each distributee becomes of legal age; and |
|
(2) manage and control the separate property under the |
|
provisions of law relating to community property. |
|
(b) A child or distributee entitled to any portion of the |
|
separate property described by Subsection (a) is entitled to |
|
receive the child's or distributee's distributive portion of the |
|
estate at any time after the child or distributee becomes of legal |
|
age. (Tex. Prob. Code, Sec. 70.) |
|
[Sections 255.202-255.250 reserved for expansion] |
|
SUBCHAPTER F. DEVISE OF SECURITIES |
|
Sec. 255.251. DEFINITIONS. In this subchapter: |
|
(1) "Securities" has the meaning assigned by Section |
|
4, The Securities Act (Article 581-4, Vernon's Texas Civil |
|
Statutes). |
|
(2) "Stock" means securities. (Tex. Prob. Code, Sec. |
|
70A(c).) |
|
Sec. 255.252. INCREASE IN SECURITIES; ACCESSIONS. Unless |
|
the will of a testator clearly provides otherwise, a devise of |
|
securities that are owned by the testator on the date the will is |
|
executed includes the following additional securities subsequently |
|
acquired by the testator as a result of the testator's ownership of |
|
the devised securities: |
|
(1) securities of the same organization acquired |
|
because of an action initiated by the organization or any |
|
successor, related, or acquiring organization, including stock |
|
splits, stock dividends, and new issues of stock acquired in a |
|
reorganization, redemption, or exchange, other than securities |
|
acquired through the exercise of purchase options or through a plan |
|
of reinvestment; and |
|
(2) securities of another organization acquired as a |
|
result of a merger, consolidation, reorganization, or other |
|
distribution by the organization or any successor, related, or |
|
acquiring organization, including stock splits, stock dividends, |
|
and new issues of stock acquired in a reorganization, redemption, |
|
or exchange, other than securities acquired through the exercise of |
|
purchase options or through a plan of reinvestment. (Tex. Prob. |
|
Code, Sec. 70A(a).) |
|
Sec. 255.253. CASH DISTRIBUTION NOT INCLUDED IN DEVISE. |
|
Unless the will of a testator clearly provides otherwise, a devise |
|
of securities does not include a cash distribution relating to the |
|
securities that accrues before the testator's death, regardless of |
|
whether the distribution is paid before the testator's death. |
|
(Tex. Prob. Code, Sec. 70A(b).) |
|
[Sections 255.254-255.300 reserved for expansion] |
|
SUBCHAPTER G. EXONERATION OF DEBTS SECURED BY SPECIFIC DEVISES |
|
Sec. 255.301. NO RIGHT TO EXONERATION OF DEBTS. Except as |
|
provided by Section 255.302, a specific devise passes to the |
|
devisee subject to each debt secured by the property that exists on |
|
the date of the testator's death, and the devisee is not entitled to |
|
exoneration from the testator's estate for payment of the debt. |
|
(Tex. Prob. Code, Sec. 71A(a).) |
|
Sec. 255.302. EXCEPTION. A specific devise does not pass to |
|
the devisee subject to a debt described by Section 255.301 if the |
|
will in which the devise is made specifically states that the devise |
|
passes without being subject to the debt. A general provision in |
|
the will stating that debts are to be paid is not a specific |
|
statement for purposes of this section. (Tex. Prob. Code, Sec. |
|
71A(b).) |
|
Sec. 255.303. RIGHTS OF CERTAIN CREDITORS AND OTHER |
|
PERSONS. (a) Section 255.301 does not affect the rights of |
|
creditors provided under this title or the rights of other persons |
|
or entities provided under Chapters 102 and 353. |
|
(b) A debt described by Section 255.301 that a creditor |
|
elects to have allowed and approved as a matured secured claim shall |
|
be paid in accordance with Sections 355.153(b), (c), (d), and (e). |
|
(Tex. Prob. Code, Sec. 71A(c).) |
|
[Sections 255.304-255.350 reserved for expansion] |
|
SUBCHAPTER H. EXERCISE OF POWER OF APPOINTMENT THROUGH WILL |
|
Sec. 255.351. EXERCISE OF POWER OF APPOINTMENT THROUGH |
|
WILL. A testator may not exercise a power of appointment through a |
|
residuary clause in the testator's will or through a will providing |
|
for general disposition of all of the testator's property unless: |
|
(1) the testator makes a specific reference to the |
|
power in the will; or |
|
(2) there is some other indication in writing that the |
|
testator intended to include the property subject to the power in |
|
the will. (Tex. Prob. Code, Sec. 58c.) |
|
CHAPTER 256. |
PROBATE OF WILLS GENERALLY |
|
SUBCHAPTER A. EFFECTIVENESS OF WILL; PERIOD FOR PROBATE |
|
|
Sec. 256.001. WILL NOT EFFECTIVE UNTIL PROBATED |
|
Sec. 256.002. PROBATE BEFORE DEATH VOID |
|
Sec. |
256.003. PERIOD FOR ADMITTING WILL TO PROBATE; |
|
PROTECTION FOR CERTAIN PURCHASERS |
|
[Sections 256.004-256.050 reserved for expansion] |
|
SUBCHAPTER B. |
APPLICATION REQUIREMENTS |
|
Sec. 256.051. ELIGIBLE APPLICANTS FOR PROBATE OF WILL |
|
Sec. |
256.052. CONTENTS OF APPLICATION FOR PROBATE OF |
|
WRITTEN WILL GENERALLY |
|
Sec. |
256.053. FILING OF WRITTEN WILL WITH APPLICATION |
|
FOR PROBATE GENERALLY REQUIRED |
|
Sec. |
256.054. ADDITIONAL APPLICATION REQUIREMENTS WHEN |
|
NO WRITTEN WILL IS PRODUCED |
|
[Sections 256.055-256.100 reserved for expansion] |
|
SUBCHAPTER C. |
PROCEDURES FOR SECOND APPLICATION |
|
Sec. |
256.101. PROCEDURE ON FILING OF SECOND |
|
|
|
|
HAS NOT BEEN HEARD |
|
Sec. |
256.102. PROCEDURE ON FILING OF SECOND |
|
|
|
|
WILL HAS BEEN ADMITTED |
|
Sec. |
256.103. PROCEDURE WHEN APPLICATION FOR PROBATE |
|
|
|
|
ADMINISTRATION HAVE BEEN GRANTED |
|
[Sections 256.104-256.150 reserved for expansion] |
|
SUBCHAPTER D. REQUIRED PROOF FOR PROBATE OF WILL |
|
|
Sec. 256.151. GENERAL PROOF REQUIREMENTS |
|
Sec. |
256.152. ADDITIONAL PROOF REQUIRED FOR PROBATE OF |
|
WILL |
|
Sec. |
256.153. AUTHORIZED METHODS OF PROVING ATTESTED |
|
WRITTEN WILL |
|
Sec. |
256.154. AUTHORIZED METHODS OF PROVING |
|
HOLOGRAPHIC WILL |
|
Sec. |
256.155. PROCEDURES FOR DEPOSITIONS WHEN NO |
|
CONTEST IS FILED |
|
Sec. |
256.156. PROOF OF WRITTEN WILL NOT PRODUCED IN |
|
COURT |
|
Sec. |
256.157. TESTIMONY REGARDING PROBATE TO BE |
|
COMMITTED TO WRITING |
|
[Sections 256.158-256.200 reserved for expansion] |
|
SUBCHAPTER E. |
ADMISSION OF WILL TO, AND PROCEDURES FOLLOWING, PROBATE |
|
PROBATE |
|
|
Sec. 256.201. ADMISSION OF WILL TO PROBATE |
|
Sec. 256.202. CUSTODY OF PROBATED WILL |
|
Sec. |
256.203. ESTABLISHING CONTENTS OF WILL NOT IN |
|
COURT'S CUSTODY |
|
Sec. 256.204. PERIOD FOR CONTEST |
|
CHAPTER 256. PROBATE OF WILLS GENERALLY |
|
SUBCHAPTER A. EFFECTIVENESS OF WILL; PERIOD FOR PROBATE |
|
Sec. 256.001. WILL NOT EFFECTIVE UNTIL PROBATED. Except as |
|
provided by Subtitle K with respect to foreign wills, a will is not |
|
effective to prove title to, or the right to possession of, any |
|
property disposed of by the will until the will is admitted to |
|
probate. (Tex. Prob. Code, Sec. 94.) |
|
Sec. 256.002. PROBATE BEFORE DEATH VOID. The probate of a |
|
will of a living person is void. (Tex. Prob. Code, Sec. 72(a) |
|
(part).) |
|
Sec. 256.003. PERIOD FOR ADMITTING WILL TO PROBATE; |
|
PROTECTION FOR CERTAIN PURCHASERS. (a) A will may not be admitted |
|
to probate after the fourth anniversary of the testator's death |
|
unless it is shown by proof that the applicant for the probate of |
|
the will was not in default in failing to present the will for |
|
probate on or before the fourth anniversary of the testator's |
|
death. |
|
(b) Letters testamentary may not be issued if a will is |
|
admitted to probate after the fourth anniversary of the testator's |
|
death. |
|
(c) A person who for value, in good faith, and without |
|
knowledge of the existence of a will purchases property from a |
|
decedent's heirs after the fourth anniversary of the decedent's |
|
death shall be held to have good title to the interest that the heir |
|
or heirs would have had in the absence of a will, as against the |
|
claim of any devisee under any will that is subsequently offered for |
|
probate. (Tex. Prob. Code, Sec. 73.) |
|
[Sections 256.004-256.050 reserved for expansion] |
|
SUBCHAPTER B. APPLICATION REQUIREMENTS |
|
Sec. 256.051. ELIGIBLE APPLICANTS FOR PROBATE OF WILL. (a) |
|
An executor named in a will or an interested person may file an |
|
application with the court for an order admitting a will to probate, |
|
whether the will is: |
|
(1) written or unwritten; |
|
(2) in the applicant's possession or not; |
|
(3) lost; |
|
(4) destroyed; or |
|
(5) outside of this state. |
|
(b) An application for the probate of a will may be combined |
|
with an application for the appointment of an executor or |
|
administrator. A person interested in either the probate or the |
|
appointment may apply for both. (Tex. Prob. Code, Sec. 76 (part).) |
|
Sec. 256.052. CONTENTS OF APPLICATION FOR PROBATE OF |
|
WRITTEN WILL GENERALLY. (a) An application for the probate of a |
|
written will must state and aver the following to the extent each is |
|
known to the applicant or can, with reasonable diligence, be |
|
ascertained by the applicant: |
|
(1) each applicant's name and domicile; |
|
(2) the testator's name, domicile, and, if known, age, |
|
on the date of the testator's death; |
|
(3) the fact, time, and place of the testator's death; |
|
(4) facts showing that the court with which the |
|
application is filed has venue; |
|
(5) that the testator owned property, including a |
|
statement generally describing the property and the property's |
|
probable value; |
|
(6) the date of the will; |
|
(7) the name and residence of: |
|
(A) any executor named in the will or, if no |
|
executor is named, of the person to whom the applicant desires that |
|
letters be issued; and |
|
(B) each subscribing witness to the will, if any; |
|
(8) whether one or more children born to or adopted by |
|
the testator after the testator executed the will survived the |
|
testator and, if so, the name of each of those children; |
|
(9) whether the testator was ever divorced and, if so, |
|
when and from whom; |
|
(10) whether the state, a governmental agency of the |
|
state, or a charitable organization is named in the will as a |
|
devisee; and |
|
(11) that the executor named in the will, the |
|
applicant, or another person to whom the applicant desires that |
|
letters be issued is not disqualified by law from accepting the |
|
letters. |
|
(b) If an applicant does not state or aver any matter |
|
required by Subsection (a) in the application, the application must |
|
state the reason the matter is not stated and averred. (Tex. Prob. |
|
Code, Sec. 81(a) (part).) |
|
Sec. 256.053. FILING OF WRITTEN WILL WITH APPLICATION FOR |
|
PROBATE GENERALLY REQUIRED. (a) An applicant for the probate of a |
|
written will shall file the will with the application if the will is |
|
in the applicant's control. |
|
(b) A will filed under Subsection (a) must remain in the |
|
custody of the county clerk unless removed from the clerk's custody |
|
by a court order. (Tex. Prob. Code, Sec. 81(a) (part).) |
|
Sec. 256.054. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO |
|
WRITTEN WILL IS PRODUCED. In addition to the requirements for an |
|
application under Section 256.052, if an applicant for the probate |
|
of a written will cannot produce the will in court, the application |
|
must state: |
|
(1) the reason the will cannot be produced; |
|
(2) the contents of the will, as far as known; and |
|
(3) the name, age, marital status, and address, if |
|
known, and the relationship to the testator, if any, of: |
|
(A) each devisee; |
|
(B) each person who would inherit as an heir of |
|
the testator in the absence of a valid will; and |
|
(C) in the case of partial intestacy, each heir |
|
of the testator. (Tex. Prob. Code, Sec. 81(b).) |
|
[Sections 256.055-256.100 reserved for expansion] |
|
SUBCHAPTER C. PROCEDURES FOR SECOND APPLICATION |
|
Sec. 256.101. PROCEDURE ON FILING OF SECOND APPLICATION |
|
WHEN ORIGINAL APPLICATION HAS NOT BEEN HEARD. If, after an |
|
application for the probate of a decedent's will or the appointment |
|
of a personal representative for the decedent's estate has been |
|
filed but before the application is heard, an application is filed |
|
for the probate of a will of the same decedent that has not |
|
previously been presented for probate, the court shall: |
|
(1) hear both applications together; and |
|
(2) determine: |
|
(A) if both applications are for the probate of a |
|
will, which will should be admitted to probate, if either, or |
|
whether the decedent died intestate; or |
|
(B) if only one application is for the probate of |
|
a will, whether the will should be admitted to probate or whether |
|
the decedent died intestate. (Tex. Prob. Code, Sec. 83(a).) |
|
Sec. 256.102. PROCEDURE ON FILING OF SECOND APPLICATION FOR |
|
PROBATE AFTER FIRST WILL HAS BEEN ADMITTED. If, after a decedent's |
|
will has been admitted to probate, an application is filed for the |
|
probate of a will of the same decedent that has not previously been |
|
presented for probate, the court shall determine: |
|
(1) whether the former probate should be set aside; |
|
and |
|
(2) if the former probate is to be set aside, whether: |
|
(A) the other will should be admitted to probate; |
|
or |
|
(B) the decedent died intestate. (Tex. Prob. |
|
Code, Sec. 83(b).) |
|
Sec. 256.103. PROCEDURE WHEN APPLICATION FOR PROBATE IS |
|
FILED AFTER LETTERS OF ADMINISTRATION HAVE BEEN GRANTED. (a) A |
|
lawful will of a decedent that is discovered after letters of |
|
administration have been granted on the decedent's estate may be |
|
proved in the manner provided for the proof of wills. |
|
(b) The court shall allow an executor named in a will |
|
described by Subsection (a) who is not disqualified to qualify and |
|
accept as executor. The court shall revoke the previously granted |
|
letters of administration. |
|
(c) If an executor is not named in a will described by |
|
Subsection (a), or if the executor named is disqualified or dead, |
|
renounces the executorship, fails or is unable to accept and |
|
qualify before the 21st day after the date of the probate of the |
|
will, or fails to present the will for probate before the 31st day |
|
after the discovery of the will, the court, as in other cases, shall |
|
grant an administration with the will annexed of the testator's |
|
estate. |
|
(d) An act performed by the first administrator before the |
|
executor described by Subsection (b) or the administrator with the |
|
will annexed described by Subsection (c) qualifies is as valid as if |
|
no will had been discovered. (Tex. Prob. Code, Sec. 83(c).) |
|
[Sections 256.104-256.150 reserved for expansion] |
|
SUBCHAPTER D. REQUIRED PROOF FOR PROBATE OF WILL |
|
Sec. 256.151. GENERAL PROOF REQUIREMENTS. An applicant for |
|
the probate of a will must prove to the court's satisfaction that: |
|
(1) the testator is dead; |
|
(2) four years have not elapsed since the date of the |
|
testator's death and before the application; |
|
(3) the court has jurisdiction and venue over the |
|
estate; |
|
(4) citation has been served and returned in the |
|
manner and for the period required by this title; and |
|
(5) the person for whom letters testamentary or of |
|
administration are sought is entitled by law to the letters and is |
|
not disqualified. (Tex. Prob. Code, Sec. 88(a) (part).) |
|
Sec. 256.152. ADDITIONAL PROOF REQUIRED FOR PROBATE OF |
|
WILL. (a) An applicant for the probate of a will must prove the |
|
following to the court's satisfaction, in addition to the proof |
|
required by Section 256.151, to obtain the probate: |
|
(1) the testator did not revoke the will; and |
|
(2) if the will is not self-proved as provided by this |
|
title, the testator: |
|
(A) executed the will with the formalities and |
|
solemnities and under the circumstances required by law to make the |
|
will valid; and |
|
(B) at the time of executing the will, was of |
|
sound mind and: |
|
(i) was 18 years of age or older; |
|
(ii) was or had been married; or |
|
(iii) was a member of the armed forces of |
|
the United States, an auxiliary of the armed forces of the United |
|
States, or the United States Maritime Service. |
|
(b) A will that is self-proved as provided by this title is |
|
not required to have any additional proof that the will was executed |
|
with the formalities and solemnities and under the circumstances |
|
required to make the will valid. (Tex. Prob. Code, Secs. 84(a), |
|
88(b).) |
|
Sec. 256.153. AUTHORIZED METHODS OF PROVING ATTESTED |
|
WRITTEN WILL. (a) An attested written will produced in court that |
|
is not self-proved as provided by this title may be proved in the |
|
manner provided by this section. |
|
(b) A will described by Subsection (a) may be proved by the |
|
sworn testimony or affidavit of one or more of the subscribing |
|
witnesses to the will taken in open court. |
|
(c) If all the witnesses to a will described by Subsection |
|
(a) are nonresidents of the county or the witnesses who are |
|
residents of the county are unable to attend court, the will may be |
|
proved: |
|
(1) by the sworn testimony of one or more of the |
|
witnesses by written or oral deposition taken in the same manner and |
|
under the same rules as depositions are taken in other civil |
|
actions; |
|
(2) if no opposition in writing to the will is filed on |
|
or before the date set for the hearing on the will, by the sworn |
|
testimony or affidavit of two witnesses taken in open court, or by |
|
deposition as provided by Subdivision (1), to the signature or the |
|
handwriting evidenced by the signature of: |
|
(A) one or more of the attesting witnesses; or |
|
(B) the testator, if the testator signed the |
|
will; or |
|
(3) if it is shown under oath to the court's |
|
satisfaction that, after a diligent search was made, only one |
|
witness can be found who can make the required proof, by the sworn |
|
testimony or affidavit of that witness taken in open court, or by |
|
deposition as provided by Subdivision (1), to a signature, or the |
|
handwriting evidenced by a signature, described by Subdivision (2). |
|
(d) If none of the witnesses to a will described by |
|
Subsection (a) are living, or if each of the witnesses is a member |
|
of the armed forces or the armed forces reserves of the United |
|
States, an auxiliary of the armed forces or armed forces reserves, |
|
or the United States Maritime Service and is beyond the court's |
|
jurisdiction, the will may be proved: |
|
(1) by two witnesses to the handwriting of one or both |
|
of the subscribing witnesses to the will or the testator, if the |
|
testator signed the will, by: |
|
(A) sworn testimony or affidavit taken in open |
|
court; or |
|
(B) written or oral deposition taken in the same |
|
manner and under the same rules as depositions are taken in other |
|
civil actions; or |
|
(2) if it is shown under oath to the court's |
|
satisfaction that, after a diligent search was made, only one |
|
witness can be found who can make the required proof, by the sworn |
|
testimony or affidavit of that witness taken in open court, or by |
|
deposition as provided by Subdivision (1), to a signature or the |
|
handwriting described by Subdivision (1). (Tex. Prob. Code, Sec. |
|
84(b).) |
|
Sec. 256.154. AUTHORIZED METHODS OF PROVING HOLOGRAPHIC |
|
WILL. A will wholly in the handwriting of the testator that is not |
|
self-proved as provided by this title may be proved by two witnesses |
|
to the testator's handwriting. The evidence may be by: |
|
(1) sworn testimony or affidavit taken in open court; |
|
or |
|
(2) if the witnesses are nonresidents of the county or |
|
are residents who are unable to attend court, written or oral |
|
deposition taken in the same manner and under the same rules as |
|
depositions are taken in other civil actions. (Tex. Prob. Code, |
|
Sec. 84(c).) |
|
Sec. 256.155. PROCEDURES FOR DEPOSITIONS WHEN NO CONTEST IS |
|
FILED. (a) This section, rather than Sections 256.153(c) and (d) |
|
and 256.154 regarding the taking of depositions under the same |
|
rules as depositions in other civil actions, applies if no contest |
|
has been filed with respect to an application for the probate of a |
|
will. |
|
(b) Depositions for the purpose of establishing a will may |
|
be taken in the manner provided by Section 51.203 for the taking of |
|
depositions when there is no opposing party or attorney of record on |
|
whom notice and copies of interrogatories may be served. (Tex. |
|
Prob. Code, Sec. 84(d).) |
|
Sec. 256.156. PROOF OF WRITTEN WILL NOT PRODUCED IN COURT. |
|
(a) A written will that cannot be produced in court must be proved |
|
in the same manner as provided in Section 256.153 for an attested |
|
written will or Section 256.154 for a holographic will, as |
|
applicable. The same amount and character of testimony is required |
|
to prove the written will not produced in court as is required to |
|
prove a written will produced in court. |
|
(b) In addition to the proof required by Subsection (a): |
|
(1) the cause of the nonproduction of a written will |
|
not produced in court must be proved, which must be sufficient to |
|
satisfy the court that the will cannot by any reasonable diligence |
|
be produced; and |
|
(2) the contents of the will must be substantially |
|
proved by the testimony of a credible witness who has read the will, |
|
has heard the will read, or can identify a copy of the will. (Tex. |
|
Prob. Code, Sec. 85.) |
|
Sec. 256.157. TESTIMONY REGARDING PROBATE TO BE COMMITTED |
|
TO WRITING. (a) Except as provided by Subsection (b), all |
|
testimony taken in open court on the hearing of an application to |
|
probate a will must be: |
|
(1) committed to writing at the time the testimony is |
|
taken; |
|
(2) subscribed and sworn to in open court by the |
|
witness; and |
|
(3) filed by the clerk. |
|
(b) In a contested case, the court, on the agreement of the |
|
parties or, if there is no agreement, on the court's own motion, may |
|
waive the requirements of Subsection (a). (Tex. Prob. Code, Sec. |
|
87.) |
|
[Sections 256.158-256.200 reserved for expansion] |
|
SUBCHAPTER E. ADMISSION OF WILL TO, AND PROCEDURES FOLLOWING, |
|
PROBATE |
|
Sec. 256.201. ADMISSION OF WILL TO PROBATE. If the court is |
|
satisfied on the completion of hearing an application for the |
|
probate of a will that the will should be admitted to probate, the |
|
court shall enter an order admitting the will to probate. Certified |
|
copies of the will and the order admitting the will to probate, or |
|
of the record of the will and order, and the record of testimony, |
|
may be: |
|
(1) recorded in other counties; and |
|
(2) used in evidence, as the originals may be used, on |
|
the trial of the same matter in any other court when taken to that |
|
court by appeal or otherwise. (Tex. Prob. Code, Sec. 89.) |
|
Sec. 256.202. CUSTODY OF PROBATED WILL. An original will |
|
and the probate of the will shall be deposited in the office of the |
|
county clerk of the county in which the will was probated. The will |
|
and probate of the will shall remain in that office except during a |
|
time the will and the probate of the will are removed for inspection |
|
to another place on an order of the court where the will was |
|
probated. If that court orders the original will to be removed to |
|
another place for inspection: |
|
(1) the person removing the will shall give a receipt |
|
for the will; and |
|
(2) the court clerk shall make and retain a copy of the |
|
will. (Tex. Prob. Code, Sec. 90.) |
|
Sec. 256.203. ESTABLISHING CONTENTS OF WILL NOT IN COURT'S |
|
CUSTODY. If for any reason a written will is not in the court's |
|
custody, the court shall find the contents of the will by written |
|
order. Certified copies of the contents as established by the order |
|
may be: |
|
(1) recorded in other counties; and |
|
(2) used in evidence, as certified copies of written |
|
wills in the custody of the court may be used. (Tex. Prob. Code, |
|
Sec. 91.) |
|
Sec. 256.204. PERIOD FOR CONTEST. (a) After a will is |
|
admitted to probate, an interested person may commence a suit to |
|
contest the validity thereof not later than the second anniversary |
|
of the date the will was admitted to probate, except that an |
|
interested person may commence a suit to cancel a will for forgery |
|
or other fraud not later than the second anniversary of the date the |
|
forgery or fraud was discovered. |
|
(b) Notwithstanding Subsection (a), an incapacitated person |
|
may commence the contest under that subsection on or before the |
|
second anniversary of the date the person's disabilities are |
|
removed. (Tex. Prob. Code, Sec. 93.) |
|
CHAPTER 257. |
PROBATE OF WILL AS MUNIMENT OF TITLE |
|
SUBCHAPTER A. |
AUTHORIZATION |
|
Sec. |
257.001. PROBATE OF WILL AS MUNIMENT OF TITLE |
|
AUTHORIZED |
|
[Sections 257.002-257.050 reserved for expansion] |
|
SUBCHAPTER B. |
APPLICATION AND PROOF REQUIREMENTS |
|
Sec. 257.051. CONTENTS OF APPLICATION GENERALLY |
|
Sec. |
257.052. FILING OF WRITTEN WILL WITH APPLICATION |
|
GENERALLY REQUIRED |
|
Sec. |
257.053. ADDITIONAL APPLICATION REQUIREMENTS WHEN |
|
NO WRITTEN WILL IS PRODUCED |
|
Sec. 257.054. PROOF REQUIRED |
|
[Sections 257.055-257.100 reserved for expansion] |
|
SUBCHAPTER C. |
ORDER ADMITTING WILL; REPORT |
|
Sec. 257.101. DECLARATORY JUDGMENT CONSTRUING WILL |
|
Sec. |
257.102. AUTHORITY OF CERTAIN PERSONS ACTING IN |
|
ACCORDANCE WITH ORDER |
|
Sec. 257.103. REPORT BY APPLICANT AFTER PROBATE |
|
CHAPTER 257. PROBATE OF WILL AS MUNIMENT OF TITLE |
|
SUBCHAPTER A. AUTHORIZATION |
|
Sec. 257.001. PROBATE OF WILL AS MUNIMENT OF TITLE |
|
AUTHORIZED. A court may admit a will to probate as a muniment of |
|
title if the court is satisfied that the will should be admitted to |
|
probate and the court: |
|
(1) is satisfied that the testator's estate does not |
|
owe an unpaid debt, other than any debt secured by a lien on real |
|
estate; or |
|
(2) finds for another reason that there is no |
|
necessity for administration of the estate. (Tex. Prob. Code, Sec. |
|
89C(a).) |
|
[Sections 257.002-257.050 reserved for expansion] |
|
SUBCHAPTER B. APPLICATION AND PROOF REQUIREMENTS |
|
Sec. 257.051. CONTENTS OF APPLICATION GENERALLY. (a) An |
|
application for the probate of a will as a muniment of title must |
|
state and aver the following to the extent each is known to the |
|
applicant or can, with reasonable diligence, be ascertained by the |
|
applicant: |
|
(1) each applicant's name and domicile; |
|
(2) the testator's name, domicile, and, if known, age, |
|
on the date of the testator's death; |
|
(3) the fact, time, and place of the testator's death; |
|
(4) facts showing that the court with which the |
|
application is filed has venue; |
|
(5) that the testator owned property, including a |
|
statement generally describing the property and the property's |
|
probable value; |
|
(6) the date of the will; |
|
(7) the name and residence of: |
|
(A) any executor named in the will; and |
|
(B) each subscribing witness to the will, if any; |
|
(8) whether one or more children born to or adopted by |
|
the testator after the testator executed the will survived the |
|
testator and, if so, the name of each of those children; |
|
(9) that the testator's estate does not owe an unpaid |
|
debt, other than any debt secured by a lien on real estate; |
|
(10) whether the testator was ever divorced and, if |
|
so, when and from whom; and |
|
(11) whether the state, a governmental agency of the |
|
state, or a charitable organization is named in the will as a |
|
devisee. |
|
(b) If an applicant does not state or aver any matter |
|
required by Subsection (a) in the application, the application must |
|
state the reason the matter is not stated and averred. (Tex. Prob. |
|
Code, Sec. 89A(a) (part).) |
|
Sec. 257.052. FILING OF WRITTEN WILL WITH APPLICATION |
|
GENERALLY REQUIRED. (a) An applicant for the probate of a written |
|
will as a muniment of title shall file the will with the application |
|
if the will is in the applicant's control. |
|
(b) A will filed under Subsection (a) must remain in the |
|
custody of the county clerk unless removed from the clerk's custody |
|
by court order. (Tex. Prob. Code, Sec. 89A(a) (part).) |
|
Sec. 257.053. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO |
|
WRITTEN WILL IS PRODUCED. In addition to the requirements for an |
|
application under Section 257.051, if an applicant for the probate |
|
of a written will as a muniment of title cannot produce the will in |
|
court, the application must state: |
|
(1) the reason the will cannot be produced; |
|
(2) the contents of the will, to the extent known; and |
|
(3) the name, age, marital status, and address, if |
|
known, and the relationship to the testator, if any, of: |
|
(A) each devisee; |
|
(B) each person who would inherit as an heir of |
|
the testator in the absence of a valid will; and |
|
(C) in the case of partial intestacy, each heir |
|
of the testator. (Tex. Prob. Code, Sec. 89A(b).) |
|
Sec. 257.054. PROOF REQUIRED. An applicant for the probate |
|
of a will as a muniment of title must prove to the court's |
|
satisfaction that: |
|
(1) the testator is dead; |
|
(2) four years have not elapsed since the date of the |
|
testator's death and before the application; |
|
(3) the court has jurisdiction and venue over the |
|
estate; |
|
(4) citation has been served and returned in the |
|
manner and for the period required by this title; |
|
(5) the testator's estate does not owe an unpaid debt, |
|
other than any debt secured by a lien on real estate; |
|
(6) the testator did not revoke the will; and |
|
(7) if the will is not self-proved in the manner |
|
provided by this title, the testator: |
|
(A) executed the will with the formalities and |
|
solemnities and under the circumstances required by law to make the |
|
will valid; and |
|
(B) at the time of executing the will was of sound |
|
mind and: |
|
(i) was 18 years of age or older; |
|
(ii) was or had been married; or |
|
(iii) was a member of the armed forces of |
|
the United States, an auxiliary of the armed forces of the United |
|
States, or the United States Maritime Service. (Tex. Prob. Code, |
|
Sec. 89B.) |
|
[Sections 257.055-257.100 reserved for expansion] |
|
SUBCHAPTER C. ORDER ADMITTING WILL; REPORT |
|
Sec. 257.101. DECLARATORY JUDGMENT CONSTRUING WILL. (a) |
|
On application and notice as provided by Chapter 37, Civil Practice |
|
and Remedies Code, the court may hear evidence and include in an |
|
order probating a will as a muniment of title a declaratory |
|
judgment: |
|
(1) construing the will, if a question of construction |
|
of the will exists; or |
|
(2) determining those persons who are entitled to |
|
receive property under the will and the persons' shares or |
|
interests in the estate, if a person who is entitled to property |
|
under the provisions of the will cannot be ascertained solely by |
|
reference to the will. |
|
(b) A declaratory judgment under this section is conclusive |
|
in any suit between a person omitted from the judgment and a bona |
|
fide purchaser for value who purchased property after entry of the |
|
judgment without actual notice of the claim of the omitted person to |
|
an interest in the estate. |
|
(c) A person who delivered the testator's property to a |
|
person declared to be entitled to the property under the |
|
declaratory judgment under this section or engaged in any other |
|
transaction with the person in good faith after entry of the |
|
judgment is not liable to any person for actions taken in reliance |
|
on the judgment. (Tex. Prob. Code, Sec. 89C(b).) |
|
Sec. 257.102. AUTHORITY OF CERTAIN PERSONS ACTING IN |
|
ACCORDANCE WITH ORDER. (a) An order admitting a will to probate as |
|
a muniment of title constitutes sufficient legal authority for each |
|
person who owes money to the testator's estate, has custody of |
|
property, acts as registrar or transfer agent of any evidence of |
|
interest, indebtedness, property, or right belonging to the estate, |
|
or purchases from or otherwise deals with the estate, to pay or |
|
transfer without administration the applicable asset without |
|
liability to a person described in the will as entitled to receive |
|
the asset. |
|
(b) A person who is entitled to property under the |
|
provisions of a will admitted to probate as a muniment of title is |
|
entitled to deal with and treat the property in the same manner as |
|
if the record of title to the property was vested in the person's |
|
name. (Tex. Prob. Code, Sec. 89C(c).) |
|
Sec. 257.103. REPORT BY APPLICANT AFTER PROBATE. (a) |
|
Except as provided by Subsection (b), not later than the 180th day |
|
after the date a will is admitted to probate as a muniment of title, |
|
the applicant for the probate of the will shall file with the court |
|
clerk a sworn affidavit stating specifically the terms of the will |
|
that have been fulfilled and the terms that have not been fulfilled. |
|
(b) The court may: |
|
(1) waive the requirement under Subsection (a); or |
|
(2) extend the time for filing the affidavit under |
|
Subsection (a). |
|
(c) The failure of an applicant for probate of a will to file |
|
the affidavit required by Subsection (a) does not affect title to |
|
property passing under the terms of the will. (Tex. Prob. Code, |
|
Sec. 89C(d).) |
|
CHAPTER 258. |
CITATIONS AND NOTICES RELATING TO PROBATE OF WILL |
|
SUBCHAPTER A. |
CITATIONS WITH RESPECT TO APPLICATIONS FOR PROBATE OF WILL |
|
OF WILL |
|
|
Sec. |
258.001. CITATION ON APPLICATION FOR PROBATE OF |
|
WILL PRODUCED IN COURT |
|
Sec. |
258.002. CITATION ON APPLICATION FOR PROBATE OF |
|
WILL NOT PRODUCED IN COURT |
|
Sec. |
258.003. COURT ACTION PROHIBITED BEFORE SERVICE |
|
OF CITATION |
|
[Sections 258.004-258.050 reserved for expansion] |
|
SUBCHAPTER B. NOTICES WITH RESPECT TO APPLICATION TO PROBATE WILL |
AFTER THE PERIOD FOR PROBATE |
|
AFTER THE PERIOD FOR PROBATE |
|
|
Sec. 258.051. NOTICE TO HEIRS |
|
Sec. 258.052. APPOINTMENT OF ATTORNEY AD LITEM |
|
Sec. 258.053. PREVIOUSLY PROBATED WILL |
|
[Sections 258.054-258.100 reserved for expansion] |
|
SUBCHAPTER C. SERVICE BY PUBLICATION OR OTHER SUBSTITUTED SERVICE |
|
|
Sec. |
258.101. SERVICE BY PUBLICATION OR OTHER |
|
SUBSTITUTED SERVICE |
|
CHAPTER 258. CITATIONS AND NOTICES RELATING TO PROBATE OF WILL |
|
SUBCHAPTER A. CITATIONS WITH RESPECT TO APPLICATIONS FOR PROBATE |
|
OF WILL |
|
Sec. 258.001. CITATION ON APPLICATION FOR PROBATE OF WILL |
|
PRODUCED IN COURT. (a) On the filing with the clerk of an |
|
application for the probate of a written will produced in court, the |
|
clerk shall issue a citation to all parties interested in the |
|
estate. |
|
(b) The citation required by Subsection (a) shall be served |
|
by posting and must state: |
|
(1) that the application has been filed; |
|
(2) the nature of the application; |
|
(3) the testator's name; |
|
(4) the applicant's name; |
|
(5) the time when the court will act on the |
|
application; and |
|
(6) that any person interested in the estate may |
|
appear at the time stated in the citation to contest the |
|
application. (Tex. Prob. Code, Sec. 128(a) (part).) |
|
Sec. 258.002. CITATION ON APPLICATION FOR PROBATE OF WILL |
|
NOT PRODUCED IN COURT. (a) On the filing of an application for the |
|
probate of a written will that cannot be produced in court, the |
|
clerk shall issue a citation to all parties interested in the |
|
estate. The citation must: |
|
(1) contain substantially the statements made in the |
|
application for probate; |
|
(2) identify the court that will act on the |
|
application; and |
|
(3) state the time and place of the court's action on |
|
the application. |
|
(b) The citation required by Subsection (a) shall be served |
|
on the testator's heirs by personal service if the heirs are |
|
residents of this state and their addresses are known. |
|
(c) Service of the citation required by Subsection (a) may |
|
be made by publication if: |
|
(1) the heirs are not residents of this state; |
|
(2) the names or addresses of the heirs are unknown; or |
|
(3) the heirs are transient persons. (Tex. Prob. |
|
Code, Sec. 128(b).) |
|
Sec. 258.003. COURT ACTION PROHIBITED BEFORE SERVICE OF |
|
CITATION. A court may not act on an application for the probate of a |
|
will until service of citation has been made in the manner provided |
|
by this subchapter. (Tex. Prob. Code, Sec. 128(c) (part).) |
|
[Sections 258.004-258.050 reserved for expansion] |
|
SUBCHAPTER B. NOTICES WITH RESPECT TO APPLICATION TO PROBATE WILL |
|
AFTER THE PERIOD FOR PROBATE |
|
Sec. 258.051. NOTICE TO HEIRS. (a) Except as provided by |
|
Subsection (c), an applicant for the probate of a will under Section |
|
256.003(a) must give notice by service of process to each of the |
|
testator's heirs whose address can be ascertained by the applicant |
|
with reasonable diligence. |
|
(b) The notice required by Subsection (a) must: |
|
(1) contain a statement that: |
|
(A) the testator's property will pass to the |
|
testator's heirs if the will is not admitted to probate; and |
|
(B) the person offering the testator's will for |
|
probate may not be in default for failing to present the will for |
|
probate during the four-year period immediately following the |
|
testator's death; and |
|
(2) be given before the probate of the testator's will. |
|
(c) Notice otherwise required by Subsection (a) is not |
|
required to be given to an heir who has delivered to the court an |
|
affidavit signed by the heir that: |
|
(1) contains the statement described by Subsection |
|
(b)(1); and |
|
(2) states that the heir does not object to the offer |
|
of the testator's will for probate. (Tex. Prob. Code, Secs. |
|
128B(a), (b), (c).) |
|
Sec. 258.052. APPOINTMENT OF ATTORNEY AD LITEM. If an |
|
applicant described by Section 258.051(a) cannot, with reasonable |
|
diligence, ascertain the address of any of the testator's heirs, |
|
the court shall appoint an attorney ad litem to protect the |
|
interests of the testator's unknown heirs after an application for |
|
the probate of a will is made under Section 256.003(a). (Tex. Prob. |
|
Code, Sec. 128B(d).) |
|
Sec. 258.053. PREVIOUSLY PROBATED WILL. With respect to an |
|
application under Section 256.003(a) for the probate of a will of a |
|
testator who has had another will admitted to probate, this |
|
subchapter applies so as to require notice to the beneficiaries of |
|
the testator's probated will instead of to the testator's heirs. |
|
(Tex. Prob. Code, Sec. 128B(e).) |
|
[Sections 258.054-258.100 reserved for expansion] |
|
SUBCHAPTER C. SERVICE BY PUBLICATION OR OTHER SUBSTITUTED SERVICE |
|
Sec. 258.101. SERVICE BY PUBLICATION OR OTHER SUBSTITUTED |
|
SERVICE. Notwithstanding any other provision of this chapter, if |
|
an attempt to make service under this chapter is unsuccessful, |
|
service may be made in the manner provided by Rule 109 or 109a, |
|
Texas Rules of Civil Procedure, for the service of a citation on a |
|
party by publication or other substituted service. (Tex. Prob. |
|
Code, Sec. 129A.) |
|
[Chapters 259-300 reserved for expansion] |
|
SUBTITLE G. INITIAL APPOINTMENT OF PERSONAL REPRESENTATIVE AND |
|
OPENING OF ADMINISTRATION |
|
CHAPTER 301. |
APPLICATION FOR LETTERS TESTAMENTARY OR OF ADMINISTRATION |
|
ADMINISTRATION |
|
|
SUBCHAPTER A. |
PERIOD FOR APPLICATION FOR LETTERS |
|
Sec. 301.001. ADMINISTRATION BEFORE DEATH VOID |
|
Sec. |
301.002. PERIOD FOR FILING APPLICATION FOR |
|
|
|
|
ADMINISTRATION |
|
[Sections 301.003-301.050 reserved for expansion] |
|
SUBCHAPTER B. |
APPLICATION REQUIREMENTS |
|
Sec. 301.051. ELIGIBLE APPLICANTS FOR LETTERS |
|
Sec. |
301.052. CONTENTS OF APPLICATION FOR LETTERS OF |
|
ADMINISTRATION |
|
[Sections 301.053-301.100 reserved for expansion] |
|
SUBCHAPTER C. |
OPPOSITION TO CERTAIN APPLICATIONS |
|
Sec. |
301.101. OPPOSITION TO APPLICATION FOR LETTERS OF |
|
ADMINISTRATION |
|
[Sections 301.102-301.150 reserved for expansion] |
|
SUBCHAPTER D. |
REQUIRED PROOF FOR ISSUANCE OF LETTERS |
|
Sec. 301.151. GENERAL PROOF REQUIREMENTS |
|
Sec. |
301.152. ADDITIONAL PROOF REQUIRED FOR LETTERS |
|
TESTAMENTARY |
|
Sec. |
301.153. ADDITIONAL PROOF REQUIRED FOR LETTERS OF |
|
|
|
|
NECESSITY FOR ADMINISTRATION EXISTS |
|
Sec. |
301.154. PROOF REQUIRED WHEN LETTERS HAVE |
|
PREVIOUSLY BEEN GRANTED |
|
[Sections 301.155-301.200 reserved for expansion] |
|
SUBCHAPTER E. |
PREVENTION OF ADMINISTRATION |
|
Sec. |
301.201. METHOD OF PREVENTING ADMINISTRATION |
|
REQUESTED BY CREDITOR |
|
Sec. 301.202. SUIT ON BOND |
|
Sec. 301.203. BOND SECURED BY LIEN |
|
CHAPTER 301. APPLICATION FOR LETTERS TESTAMENTARY OR OF |
|
ADMINISTRATION |
|
SUBCHAPTER A. PERIOD FOR APPLICATION FOR LETTERS |
|
Sec. 301.001. ADMINISTRATION BEFORE DEATH VOID. The |
|
administration of an estate of a living person is void. (Tex. Prob. |
|
Code, Sec. 72(a) (part).) |
|
Sec. 301.002. PERIOD FOR FILING APPLICATION FOR LETTERS |
|
TESTAMENTARY OR OF ADMINISTRATION. (a) Except as provided by |
|
Subsection (b), an application for the grant of letters |
|
testamentary or of administration of an estate must be filed not |
|
later than the fourth anniversary of the decedent's death. |
|
(b) This section does not apply if administration is |
|
necessary to receive or recover property due a decedent's estate. |
|
(Tex. Prob. Code, Sec. 74.) |
|
[Sections 301.003-301.050 reserved for expansion] |
|
SUBCHAPTER B. APPLICATION REQUIREMENTS |
|
Sec. 301.051. ELIGIBLE APPLICANTS FOR LETTERS. An executor |
|
named in a will or an interested person may file an application with |
|
the court for: |
|
(1) the appointment of the executor named in the will; |
|
or |
|
(2) the appointment of an administrator, if: |
|
(A) there is a will, but: |
|
(i) no executor is named in the will; or |
|
(ii) the executor named in the will is |
|
disqualified, refuses to serve, is dead, or resigns; or |
|
(B) there is no will. (Tex. Prob. Code, Sec. 76 |
|
(part).) |
|
Sec. 301.052. CONTENTS OF APPLICATION FOR LETTERS OF |
|
ADMINISTRATION. An application for letters of administration when |
|
no will is alleged to exist must state: |
|
(1) the applicant's name, domicile, and, if any, |
|
relationship to the decedent; |
|
(2) the decedent's name and that the decedent died |
|
intestate; |
|
(3) the fact, time, and place of the decedent's death; |
|
(4) facts necessary to show that the court with which |
|
the application is filed has venue; |
|
(5) whether the decedent owned property and, if so, |
|
include a statement of the property's probable value; |
|
(6) the name, age, marital status, and address, if |
|
known, and the relationship to the decedent of each of the |
|
decedent's heirs; |
|
(7) if known by the applicant at the time the applicant |
|
files the application, whether one or more children were born to or |
|
adopted by the decedent and, if so, the name, birth date, and place |
|
of birth of each child; |
|
(8) if known by the applicant at the time the applicant |
|
files the application, whether the decedent was ever divorced and, |
|
if so, when and from whom; |
|
(9) that a necessity exists for administration of the |
|
decedent's estate and an allegation of the facts that show that |
|
necessity; and |
|
(10) that the applicant is not disqualified by law |
|
from acting as administrator. (Tex. Prob. Code, Sec. 82.) |
|
[Sections 301.053-301.100 reserved for expansion] |
|
SUBCHAPTER C. OPPOSITION TO CERTAIN APPLICATIONS |
|
Sec. 301.101. OPPOSITION TO APPLICATION FOR LETTERS OF |
|
ADMINISTRATION. An interested person may, at any time before an |
|
application for letters of administration is granted, file an |
|
opposition to the application in writing and may apply for the grant |
|
of letters to the interested person or any other person. On the |
|
trial, the court, considering the applicable provisions of this |
|
code, shall grant letters to the person that seems best entitled to |
|
the letters without notice other than the notice given on the |
|
original application. (Tex. Prob. Code, Sec. 179.) |
|
[Sections 301.102-301.150 reserved for expansion] |
|
SUBCHAPTER D. REQUIRED PROOF FOR ISSUANCE OF LETTERS |
|
Sec. 301.151. GENERAL PROOF REQUIREMENTS. An applicant for |
|
the issuance of letters testamentary or of administration of an |
|
estate must prove to the court's satisfaction that: |
|
(1) the person whose estate is the subject of the |
|
application is dead; |
|
(2) four years have not elapsed since the date of the |
|
decedent's death and before the application; |
|
(3) the court has jurisdiction and venue over the |
|
estate; |
|
(4) citation has been served and returned in the |
|
manner and for the period required by this title; and |
|
(5) the person for whom letters testamentary or of |
|
administration are sought is entitled by law to the letters and is |
|
not disqualified. (Tex. Prob. Code, Sec. 88(a) (part).) |
|
Sec. 301.152. ADDITIONAL PROOF REQUIRED FOR LETTERS |
|
TESTAMENTARY. If letters testamentary are to be granted, it must |
|
appear to the court that: |
|
(1) the proof required for the probate of the will has |
|
been made; and |
|
(2) the person to whom the letters are to be granted is |
|
named as executor in the will. (Tex. Prob. Code, Sec. 88(c).) |
|
Sec. 301.153. ADDITIONAL PROOF REQUIRED FOR LETTERS OF |
|
ADMINISTRATION; EFFECT OF FINDING NO NECESSITY FOR ADMINISTRATION |
|
EXISTS. (a) If letters of administration are to be granted, the |
|
applicant for the letters must prove to the court's satisfaction |
|
that a necessity for an administration of the estate exists. |
|
(b) If an application is filed for letters of administration |
|
but the court finds that no necessity for an administration of the |
|
estate exists, the court shall recite in the court's order refusing |
|
the application that no necessity for an administration exists. |
|
(c) A court order containing a recital that no necessity for |
|
an administration of the estate exists constitutes sufficient legal |
|
authority for each person who owes money, has custody of property, |
|
or acts as registrar or transfer agent of any evidence of interest, |
|
indebtedness, property, or right belonging to the estate, and to |
|
each person purchasing or otherwise dealing with the estate, for |
|
payment or transfer to the distributees. |
|
(d) A distributee is entitled to enforce by suit the |
|
distributee's right to payment or transfer described by Subsection |
|
(c). (Tex. Prob. Code, Secs. 88(d), 180.) |
|
Sec. 301.154. PROOF REQUIRED WHEN LETTERS HAVE PREVIOUSLY |
|
BEEN GRANTED. If letters testamentary or of administration have |
|
previously been granted with respect to an estate, an applicant for |
|
the granting of subsequent letters must show only that the person |
|
for whom the letters are sought is entitled by law to the letters |
|
and is not disqualified. (Tex. Prob. Code, Sec. 88(e).) |
|
[Sections 301.155-301.200 reserved for expansion] |
|
SUBCHAPTER E. PREVENTION OF ADMINISTRATION |
|
Sec. 301.201. METHOD OF PREVENTING ADMINISTRATION |
|
REQUESTED BY CREDITOR. (a) If a creditor files an application for |
|
letters of administration of an estate, another interested person |
|
who does not desire the administration can defeat the application |
|
by: |
|
(1) paying the creditor's claim; |
|
(2) proving to the court's satisfaction that the |
|
creditor's claim is fictitious, fraudulent, illegal, or barred by |
|
limitation; or |
|
(3) executing a bond that is: |
|
(A) payable to, and to be approved by, the judge |
|
in an amount that is twice the amount of the creditor's claim; and |
|
(B) conditioned on the obligors paying the claim |
|
on the establishment of the claim by suit in any court in the county |
|
having jurisdiction of the amount. |
|
(b) A bond executed and approved under Subsection (a)(3) |
|
must be filed with the county clerk. (Tex. Prob. Code, Secs. 80(a), |
|
(b) (part).) |
|
Sec. 301.202. SUIT ON BOND. Any creditor for whose |
|
protection a bond is executed under Section 301.201(a)(3) may sue |
|
on the bond in the creditor's own name to recover the creditor's |
|
claim. (Tex. Prob. Code, Sec. 80(b) (part).) |
|
Sec. 301.203. BOND SECURED BY LIEN. If a bond is executed |
|
and approved under Section 301.201(a)(3), a lien exists on all of |
|
the estate in the possession of the distributees, and those |
|
claiming under the distributees with notice of the lien, to secure |
|
the ultimate payment of the bond. (Tex. Prob. Code, Sec. 80(c).) |
|
[Chapter 302 reserved for expansion] |
|
CHAPTER 303. |
CITATIONS AND NOTICES IN GENERAL ON OPENING OF ADMINISTRATION |
|
ADMINISTRATION |
|
|
Sec. |
303.001. CITATION ON APPLICATION FOR ISSUANCE OF |
|
LETTERS OF ADMINISTRATION |
|
Sec. |
303.002. COURT ACTION PROHIBITED BEFORE SERVICE |
|
OF CITATION |
|
Sec. |
303.003. SERVICE BY PUBLICATION OR OTHER |
|
SUBSTITUTED SERVICE |
|
CHAPTER 303. CITATIONS AND NOTICES IN GENERAL ON OPENING OF |
|
ADMINISTRATION |
|
Sec. 303.001. CITATION ON APPLICATION FOR ISSUANCE OF |
|
LETTERS OF ADMINISTRATION. (a) On the filing with the clerk of an |
|
application for letters of administration, the clerk shall issue a |
|
citation to all parties interested in the estate. |
|
(b) The citation required by Subsection (a) shall be served |
|
by posting and must state: |
|
(1) that the application has been filed; |
|
(2) the nature of the application; |
|
(3) the decedent's name; |
|
(4) the applicant's name; |
|
(5) the time when the court will act on the |
|
application; and |
|
(6) that any person interested in the estate may |
|
appear at the time stated in the citation to contest the |
|
application. (Tex. Prob. Code, Sec. 128(a) (part).) |
|
Sec. 303.002. COURT ACTION PROHIBITED BEFORE SERVICE OF |
|
CITATION. A court may not act on an application for the issuance of |
|
letters of administration until service of citation has been made |
|
in the manner provided by this chapter. (Tex. Prob. Code, Sec. |
|
128(c) (part).) |
|
Sec. 303.003. SERVICE BY PUBLICATION OR OTHER SUBSTITUTED |
|
SERVICE. Notwithstanding any other provision of this chapter, if |
|
an attempt to make service under this chapter is unsuccessful, |
|
service may be made in the manner provided by Rule 109 or 109a, |
|
Texas Rules of Civil Procedure, for the service of a citation on a |
|
party by publication or other substituted service. (Tex. Prob. |
|
Code, Sec. 129A.) |
|
CHAPTER 304. PERSONS WHO MAY SERVE AS PERSONAL REPRESENTATIVES |
|
|
Sec. |
304.001. ORDER OF PERSONS QUALIFIED TO SERVE AS |
|
PERSONAL REPRESENTATIVE |
|
Sec. |
304.002. RENOUNCING RIGHT TO SERVE AS PERSONAL |
|
REPRESENTATIVE |
|
Sec. |
304.003. PERSONS DISQUALIFIED TO SERVE AS |
|
EXECUTOR OR ADMINISTRATOR |
|
CHAPTER 304. PERSONS WHO MAY SERVE AS PERSONAL REPRESENTATIVES |
|
Sec. 304.001. ORDER OF PERSONS QUALIFIED TO SERVE AS |
|
PERSONAL REPRESENTATIVE. (a) The court shall grant letters |
|
testamentary or of administration to persons qualified to act, in |
|
the following order: |
|
(1) the person named as executor in the decedent's |
|
will; |
|
(2) the decedent's surviving spouse; |
|
(3) the principal devisee of the decedent; |
|
(4) any devisee of the decedent; |
|
(5) the next of kin of the decedent; |
|
(6) a creditor of the decedent; |
|
(7) any person of good character residing in the |
|
county who applies for the letters; and |
|
(8) any other person who is not disqualified under |
|
Section 304.003. |
|
(b) For purposes of Subsection (a)(5), the decedent's next |
|
of kin: |
|
(1) is determined in accordance with order of descent, |
|
with the person nearest in order of descent first, and so on; and |
|
(2) includes a person and the person's descendants who |
|
legally adopted the decedent or who have been legally adopted by the |
|
decedent. |
|
(c) If applicants for letters testamentary or of |
|
administration are equally entitled to the letters, the court: |
|
(1) shall grant the letters to the applicant who, in |
|
the judgment of the court, is most likely to administer the estate |
|
advantageously; or |
|
(2) may grant the letters to two or more of those |
|
applicants. (Tex. Prob. Code, Sec. 77.) |
|
Sec. 304.002. RENOUNCING RIGHT TO SERVE AS PERSONAL |
|
REPRESENTATIVE. A decedent's surviving spouse, or, if there is no |
|
surviving spouse, the heirs or any one of the heirs of the decedent |
|
to the exclusion of any person not equally entitled to letters |
|
testamentary or of administration, may renounce the right to the |
|
letters in favor of another qualified person in open court or by a |
|
power of attorney authenticated and filed with the county clerk of |
|
the county where the application for the letters is filed. After |
|
the right to the letters has been renounced, the court may grant the |
|
letters to the other qualified person. (Tex. Prob. Code, Sec. 79.) |
|
Sec. 304.003. PERSONS DISQUALIFIED TO SERVE AS EXECUTOR OR |
|
ADMINISTRATOR. A person is not qualified to serve as an executor or |
|
administrator if the person is: |
|
(1) incapacitated; |
|
(2) a felon convicted under the laws of the United |
|
States or of any state of the United States unless, in accordance |
|
with law, the person has been pardoned or has had the person's civil |
|
rights restored; |
|
(3) a nonresident of this state who: |
|
(A) is a natural person or corporation; and |
|
(B) has not: |
|
(i) appointed a resident agent to accept |
|
service of process in all actions or proceedings with respect to the |
|
estate; or |
|
(ii) had that appointment filed with the |
|
court; |
|
(4) a corporation not authorized to act as a fiduciary |
|
in this state; or |
|
(5) a person whom the court finds unsuitable. (Tex. |
|
Prob. Code, Sec. 78.) |
|
CHAPTER 305. QUALIFICATION OF PERSONAL REPRESENTATIVES |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 305.001. DEFINITIONS |
|
Sec. |
305.002. MANNER OF QUALIFICATION OF PERSONAL |
|
REPRESENTATIVE |
|
Sec. 305.003. PERIOD FOR TAKING OATH AND GIVING BOND |
|
[Sections 305.004-305.050 reserved for expansion] |
|
SUBCHAPTER B. OATHS |
|
|
Sec. |
305.051. OATH OF EXECUTOR OR ADMINISTRATOR WITH |
|
WILL ANNEXED |
|
Sec. 305.052. OATH OF ADMINISTRATOR |
|
Sec. 305.053. OATH OF TEMPORARY ADMINISTRATOR |
|
Sec. 305.054. ADMINISTRATION OF OATH |
|
Sec. 305.055. FILING AND RECORDING OF OATH |
|
[Sections 305.056-305.100 reserved for expansion] |
|
SUBCHAPTER C. GENERAL PROVISIONS RELATING TO BONDS |
|
|
Sec. 305.101. BOND GENERALLY REQUIRED; EXCEPTIONS |
|
Sec. |
305.102. BOND REQUIRED FROM EXECUTOR OTHERWISE |
|
EXEMPT |
|
Sec. 305.103. BONDS OF JOINT PERSONAL REPRESENTATIVES |
|
Sec. 305.104. BOND OF MARRIED PERSON |
|
Sec. |
305.105. BOND OF MARRIED PERSON UNDER 18 YEARS OF |
|
AGE |
|
Sec. 305.106. GENERAL FORMALITIES |
|
Sec. |
305.107. SUBSCRIPTION OF BOND BY PRINCIPALS AND |
|
SURETIES |
|
Sec. 305.108. FORM OF BOND |
|
Sec. 305.109. FILING OF BOND |
|
Sec. 305.110. FAILURE TO GIVE BOND |
|
Sec. 305.111. BOND NOT VOID ON FIRST RECOVERY |
|
[Sections 305.112-305.150 reserved for expansion] |
|
SUBCHAPTER D. AMOUNT OF BOND AND ASSOCIATED DEPOSITS |
|
|
Sec. |
305.151. GENERAL STANDARD REGARDING AMOUNT OF |
|
BOND |
|
Sec. 305.152. EVIDENTIARY HEARING ON AMOUNT OF BOND |
|
Sec. 305.153. SPECIFIC BOND AMOUNT |
|
Sec. |
305.154. AGREEMENT REGARDING DEPOSIT OF ESTATE |
|
ASSETS |
|
Sec. |
305.155. DEPOSIT OF ESTATE ASSETS ON TERMS |
|
PRESCRIBED BY COURT |
|
Sec. 305.156. DEPOSITS OF PERSONAL REPRESENTATIVE |
|
Sec. |
305.157. RECEIPT FOR DEPOSITS OF PERSONAL |
|
REPRESENTATIVE |
|
Sec. |
305.158. BOND REQUIRED INSTEAD OF DEPOSITS BY |
|
PERSONAL REPRESENTATIVE |
|
Sec. |
305.159. WITHDRAWAL OF DEPOSITS ON CLOSING OF |
|
ADMINISTRATION |
|
Sec. |
305.160. INCREASED OR ADDITIONAL BONDS IN CERTAIN |
|
CIRCUMSTANCES |
|
[Sections 305.161-305.200 reserved for expansion] |
|
SUBCHAPTER E. BOND SURETIES |
|
|
Sec. |
305.201. PERSONAL OR AUTHORIZED CORPORATE |
|
SURETIES |
|
Sec. 305.202. SURETIES FOR CERTAIN BONDS |
|
Sec. 305.203. AFFIDAVIT OF PERSONAL SURETY |
|
Sec. |
305.204. LIEN ON REAL PROPERTY OWNED BY PERSONAL |
|
SURETIES |
|
Sec. |
305.205. SUBORDINATION OF LIEN ON REAL PROPERTY |
|
OWNED BY PERSONAL SURETIES |
|
Sec. |
305.206. RELEASE OF LIEN ON REAL PROPERTY OWNED |
|
BY PERSONAL SURETIES |
|
Sec. 305.207. DEPOSITS BY PERSONAL SURETY |
|
[Sections 305.208-305.250 reserved for expansion] |
|
SUBCHAPTER F. NEW BONDS |
|
|
Sec. 305.251. GROUNDS FOR REQUIRING NEW BOND |
|
Sec. 305.252. COURT ORDER OR CITATION ON NEW BOND |
|
Sec. |
305.253. SHOW CAUSE HEARING ON NEW BOND |
|
REQUIREMENT |
|
Sec. 305.254. EFFECT OF ORDER REQUIRING NEW BOND |
|
Sec. 305.255. NEW BOND IN DECREASED AMOUNT |
|
Sec. 305.256. REQUEST BY SURETY FOR NEW BOND |
|
Sec. |
305.257. DISCHARGE OF FORMER SURETIES ON |
|
EXECUTION OF NEW BOND |
|
CHAPTER 305. QUALIFICATION OF PERSONAL REPRESENTATIVES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 305.001. DEFINITIONS. In this chapter: |
|
(1) "Bond" means a bond required by this chapter to be |
|
given by a person appointed to serve as a personal representative. |
|
(2) "Oath" means an oath required by this chapter to be |
|
taken by a person appointed to serve as a personal representative. |
|
(New.) |
|
Sec. 305.002. MANNER OF QUALIFICATION OF PERSONAL |
|
REPRESENTATIVE. (a) A personal representative, other than an |
|
executor described by Subsection (b), is considered to have |
|
qualified when the representative has: |
|
(1) taken and filed the oath prescribed by Subchapter |
|
B; |
|
(2) given the required bond; |
|
(3) obtained the judge's approval of the bond; and |
|
(4) filed the bond with the clerk. |
|
(b) An executor who is not required to give a bond is |
|
considered to have qualified when the executor has taken and filed |
|
the oath prescribed by Subchapter B. (Tex. Prob. Code, Sec. 189.) |
|
Sec. 305.003. PERIOD FOR TAKING OATH AND GIVING BOND. An |
|
oath may be taken and subscribed and a bond may be given and |
|
approved at any time before: |
|
(1) the 21st day after the date of the order granting |
|
letters testamentary or of administration, as applicable; or |
|
(2) the letters testamentary or of administration, as |
|
applicable, are revoked for a failure to qualify within the period |
|
allowed. (Tex. Prob. Code, Sec. 192 (part).) |
|
[Sections 305.004-305.050 reserved for expansion] |
|
SUBCHAPTER B. OATHS |
|
Sec. 305.051. OATH OF EXECUTOR OR ADMINISTRATOR WITH WILL |
|
ANNEXED. Before the issuance of letters testamentary or letters of |
|
administration with the will annexed, the person named as executor |
|
or appointed as administrator with the will annexed shall take and |
|
subscribe an oath in substantially the following form: |
|
I do solemnly swear that the writing offered for probate is |
|
the last will of ________ (insert name of testator), so far as I |
|
know or believe, and that I will well and truly perform all the |
|
duties of __________ (insert "executor of the will" or |
|
"administrator with the will annexed," as applicable) for the |
|
estate of _______ (insert name of testator). (Tex. Prob. Code, Sec. |
|
190(a).) |
|
Sec. 305.052. OATH OF ADMINISTRATOR. Before the issuance |
|
of letters of administration, the person appointed as administrator |
|
shall take and subscribe an oath in substantially the following |
|
form: |
|
I do solemnly swear that ___________ (insert name of |
|
decedent), deceased, died _______ (insert "without leaving any |
|
lawful will" or "leaving a lawful will, but the executor named in |
|
the will is dead or has failed to offer the will for probate or to |
|
accept and qualify as executor, within the period required," as |
|
applicable), so far as I know or believe, and that I will well and |
|
truly perform all the duties of administrator of the estate of the |
|
deceased. (Tex. Prob. Code, Sec. 190(b).) |
|
Sec. 305.053. OATH OF TEMPORARY ADMINISTRATOR. Before the |
|
issuance of temporary letters of administration, the person |
|
appointed as temporary administrator shall take and subscribe an |
|
oath in substantially the following form: |
|
I do solemnly swear that I will well and truly perform the |
|
duties of temporary administrator of the estate of __________ |
|
(insert name of decedent), deceased, in accordance with the law, |
|
and with the order of the court appointing me as temporary |
|
administrator. (Tex. Prob. Code, Sec. 190(c).) |
|
Sec. 305.054. ADMINISTRATION OF OATH. An oath may be taken |
|
before any person authorized to administer oaths under the laws of |
|
this state. (Tex. Prob. Code, Secs. 190(d) (part), 192 (part).) |
|
Sec. 305.055. FILING AND RECORDING OF OATH. An oath shall |
|
be: |
|
(1) filed with the clerk of the court granting the |
|
letters testamentary or of administration, as applicable; and |
|
(2) recorded in the minutes of that court. (Tex. Prob. |
|
Code, Sec. 190(d) (part).) |
|
[Sections 305.056-305.100 reserved for expansion] |
|
SUBCHAPTER C. GENERAL PROVISIONS RELATING TO BONDS |
|
Sec. 305.101. BOND GENERALLY REQUIRED; EXCEPTIONS. (a) |
|
Except as otherwise provided by this title, a person to whom letters |
|
testamentary or of administration will be issued must enter into a |
|
bond before issuance of the letters. |
|
(b) Letters testamentary shall be issued without the |
|
requirement of a bond to a person named as executor in a will |
|
probated in a court of this state if: |
|
(1) the will directs that no bond or security be |
|
required of the person; and |
|
(2) the court finds that the person is qualified. |
|
(c) A bond is not required if a personal representative is a |
|
corporate fiduciary. (Tex. Prob. Code, Secs. 194 (part), 195.) |
|
Sec. 305.102. BOND REQUIRED FROM EXECUTOR OTHERWISE EXEMPT. |
|
(a) This section applies only to an estate for which an executor |
|
was appointed under a will, but from whom no bond was required. |
|
(b) A person who has a debt, claim, or demand against the |
|
estate, with respect to the justice of which the person or the |
|
person's agent or attorney has made an oath, or another person |
|
interested in the estate, whether in person or as the |
|
representative of another, may file a written complaint in the |
|
court where the will is probated. |
|
(c) On the filing of the complaint, the court shall cite the |
|
executor to appear and show cause why the executor should not be |
|
required to give a bond. |
|
(d) On hearing the complaint, the court shall enter an order |
|
requiring the executor to give a bond not later than the 10th day |
|
after the date of the order if it appears to the court that: |
|
(1) the executor is wasting, mismanaging, or |
|
misapplying the estate; and |
|
(2) as a result of conduct described by Subdivision |
|
(1): |
|
(A) a creditor may probably lose the creditor's |
|
debt; or |
|
(B) a person's interest in the estate may be |
|
diminished or lost. |
|
(e) A bond required under this section must be: |
|
(1) in an amount sufficient to protect the estate and |
|
the estate's creditors; |
|
(2) payable to and approved by the judge; and |
|
(3) conditioned that the executor: |
|
(A) will well and truly administer the estate; |
|
and |
|
(B) will not waste, mismanage, or misapply the |
|
estate. |
|
(f) If the executor fails to give a bond required under this |
|
section on or before the 10th day after the date of the order and the |
|
judge has not extended the period for giving the bond, the judge, |
|
without citation, shall remove the executor and appoint a competent |
|
person in the executor's place who shall administer the estate |
|
according to the will and law. Before entering into the |
|
administration of the estate, the appointed person must: |
|
(1) take the oath required of an administrator with |
|
the will annexed under Section 305.051; and |
|
(2) give a bond in the manner and amount provided by |
|
this chapter for the issuance of original letters of |
|
administration. (Tex. Prob. Code, Secs. 214, 215, 216, 217.) |
|
Sec. 305.103. BONDS OF JOINT PERSONAL REPRESENTATIVES. If |
|
two or more persons are appointed as personal representatives of an |
|
estate and are required by this chapter or by the court to give a |
|
bond, the court may require: |
|
(1) a separate bond from each person; or |
|
(2) a joint bond from all of the persons. (Tex. Prob. |
|
Code, Sec. 198.) |
|
Sec. 305.104. BOND OF MARRIED PERSON. (a) A married person |
|
appointed as a personal representative may execute a bond required |
|
by law: |
|
(1) jointly with the person's spouse; or |
|
(2) separately without the person's spouse. |
|
(b) A bond executed by a married person binds the person's |
|
separate estate, but does not bind the person's spouse unless the |
|
spouse signed the bond. (Tex. Prob. Code, Sec. 199.) |
|
Sec. 305.105. BOND OF MARRIED PERSON UNDER 18 YEARS OF AGE. |
|
Any bond required to be executed by a person who is under 18 years of |
|
age, is or has been married, and accepts and qualifies as an |
|
executor or administrator is as valid and binding for all purposes |
|
as if the person were of legal age. (Tex. Prob. Code, Sec. 200.) |
|
Sec. 305.106. GENERAL FORMALITIES. A bond required under |
|
Section 305.101(a) must: |
|
(1) be conditioned as required by law; |
|
(2) be payable to the judge and the judge's successors |
|
in office; |
|
(3) bear the written approval of the judge in the |
|
judge's official capacity; and |
|
(4) be executed and approved in accordance with this |
|
chapter. (Tex. Prob. Code, Sec. 194 (part).) |
|
Sec. 305.107. SUBSCRIPTION OF BOND BY PRINCIPALS AND |
|
SURETIES. A bond required under Section 305.101 shall be |
|
subscribed by both principals and sureties. (Tex. Prob. Code, Sec. |
|
197 (part).) |
|
Sec. 305.108. FORM OF BOND. The following form, or a form |
|
with the same substance, may be used for the bond of a personal |
|
representative: |
|
The State of Texas |
|
County of ________ |
|
Know all persons by these presents that we, _______ (insert |
|
name of each principal), as principal, and _______ (insert name of |
|
each surety), as sureties, are held and firmly bound unto the judge |
|
of ____________ (insert reference to appropriate judge), and that |
|
judge's successors in office, in the sum of _____ dollars, |
|
conditioned that the above bound principal or principals, appointed |
|
as _______ (insert "executor of the last will and testament," |
|
"administrator with the will annexed of the estate," "administrator |
|
of the estate," or "temporary administrator of the estate," as |
|
applicable) of _______ (insert name of decedent), deceased, shall |
|
well and truly perform all of the duties required of the principal |
|
or principals by law under that appointment. (Tex. Prob. Code, Sec. |
|
196.) |
|
Sec. 305.109. FILING OF BOND. A bond required under Section |
|
305.101 shall be filed with the clerk after the court approves the |
|
bond. (Tex. Prob. Code, Sec. 197 (part).) |
|
Sec. 305.110. FAILURE TO GIVE BOND. Another person may be |
|
appointed as personal representative to replace a personal |
|
representative who at any time fails to give a bond as required by |
|
the court in the period prescribed by this chapter. (Tex. Prob. |
|
Code, Sec. 213.) |
|
Sec. 305.111. BOND NOT VOID ON FIRST RECOVERY. A personal |
|
representative's bond does not become void on the first recovery |
|
but may be put in suit and prosecuted from time to time until the |
|
entire amount of the bond has been recovered. (Tex. Prob. Code, |
|
Sec. 218.) |
|
[Sections 305.112-305.150 reserved for expansion] |
|
SUBCHAPTER D. AMOUNT OF BOND AND ASSOCIATED DEPOSITS |
|
Sec. 305.151. GENERAL STANDARD REGARDING AMOUNT OF BOND. |
|
(a) The judge shall set the amount of a bond, in an amount |
|
considered sufficient to protect the estate and the estate's |
|
creditors, as provided by this chapter. |
|
(b) Notwithstanding Subsection (a) or other provisions |
|
generally applicable to bonds of personal representatives, if the |
|
person to whom letters testamentary or of administration are |
|
granted is entitled to all of the decedent's estate after payment of |
|
debts, a bond shall be in an amount sufficient to protect creditors |
|
only. (Tex. Prob. Code, Sec. 194, Subdivs. 1, 2.) |
|
Sec. 305.152. EVIDENTIARY HEARING ON AMOUNT OF BOND. |
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Before setting the amount of a bond, the court shall hear evidence |
|
and determine: |
|
(1) the amount of cash on hand and where that cash is |
|
deposited; |
|
(2) the amount of cash estimated to be needed for |
|
administrative purposes, including operation of a business, |
|
factory, farm, or ranch owned by the estate, and expenses of |
|
administration for one year; |
|
(3) the revenue anticipated to be received in the |
|
succeeding 12 months from dividends, interest, rentals, or use of |
|
property belonging to the estate and the aggregate amount of any |
|
installments or periodic payments to be collected; |
|
(4) the estimated value of certificates of stock, |
|
bonds, notes, or other securities of the estate and the name of the |
|
depository, if any, in which those assets are deposited; |
|
(5) the face value of life insurance or other policies |
|
payable to the person on whose estate administration is sought or to |
|
the estate; |
|
(6) the estimated value of other personal property |
|
owned by the estate; and |
|
(7) the estimated amount of debts due and owing by the |
|
estate. (Tex. Prob. Code, Sec. 194, Subdiv. 3.) |
|
Sec. 305.153. SPECIFIC BOND AMOUNT. (a) Except as |
|
otherwise provided by this section, the judge shall set the bond in |
|
an amount equal to the sum of: |
|
(1) the estimated value of all personal property |
|
belonging to the estate; and |
|
(2) an additional amount to cover revenue anticipated |
|
to be derived during the succeeding 12 months from: |
|
(A) interest and dividends; |
|
(B) collectible claims; |
|
(C) the aggregate amount of any installments or |
|
periodic payments, excluding income derived or to be derived from |
|
federal social security payments; and |
|
(D) rentals for the use of property. |
|
(b) The judge shall reduce the amount of the original bond |
|
under Subsection (a) in proportion to the amount of cash or the |
|
value of securities or other assets: |
|
(1) authorized or required to be deposited by court |
|
order; or |
|
(2) voluntarily deposited by the personal |
|
representative or the sureties on the representative's bond, as |
|
provided by Sections 305.155 and 305.156. |
|
(c) A bond required to be given by a temporary administrator |
|
shall be in the amount that the judge directs. (Tex. Prob. Code, |
|
Sec. 194, Subdivs. 4, 13.) |
|
Sec. 305.154. AGREEMENT REGARDING DEPOSIT OF ESTATE ASSETS. |
|
(a) A personal representative may agree with the surety or sureties |
|
on a bond, either corporate or personal, for the deposit of any cash |
|
and other estate assets in a depository described by Subsection |
|
(c), if the deposit is otherwise proper, in a manner that prevents |
|
the withdrawal of the cash or other assets without: |
|
(1) the written consent of the surety or sureties; or |
|
(2) a court order entered after notice to the surety or |
|
sureties as directed by the court. |
|
(b) The court may require the action described by Subsection |
|
(a) if the court considers that action to be in the best interest of |
|
the estate. |
|
(c) Cash and assets must be deposited under this section in |
|
a financial institution, as defined by Section 201.101, Finance |
|
Code, that: |
|
(1) has its main office or a branch office in this |
|
state; and |
|
(2) is qualified to act as a depository in this state |
|
under the laws of this state or the United States. |
|
(d) An agreement under this section may not release the |
|
principal or sureties from liability, or change the liability of |
|
the principal or sureties, as established by the terms of the bond. |
|
(Tex. Prob. Code, Sec. 194, Subdiv. 5.) |
|
Sec. 305.155. DEPOSIT OF ESTATE ASSETS ON TERMS PRESCRIBED |
|
BY COURT. (a) Cash, securities, or other personal assets of an |
|
estate or to which the estate is entitled may or, if considered by |
|
the court to be in the best interest of the estate, shall, be |
|
deposited in one or more depositories described by Section |
|
305.154(c) on terms prescribed by the court. |
|
(b) The court in which the proceedings are pending may |
|
authorize or require additional estate assets currently on hand or |
|
that accrue during the pendency of the proceedings to be deposited |
|
as provided by Subsection (a) on: |
|
(1) the court's own motion; or |
|
(2) the written application of the personal |
|
representative or any other person interested in the estate. |
|
(c) The amount of the bond required to be given by the |
|
personal representative shall be reduced in proportion to the |
|
amount of the cash and the value of the securities or other assets |
|
deposited under this section. |
|
(d) Cash, securities, or other assets deposited under this |
|
section may be withdrawn in whole or in part from the depository |
|
only in accordance with a court order, and the amount of the |
|
personal representative's bond shall be increased in proportion to |
|
the amount of the cash and the value of the securities or other |
|
assets authorized to be withdrawn. (Tex. Prob. Code, Sec. 194, |
|
Subdiv. 6.) |
|
Sec. 305.156. DEPOSITS OF PERSONAL REPRESENTATIVE. (a) |
|
Instead of giving a surety or sureties on a bond, or to reduce the |
|
amount of a bond, a personal representative may deposit the |
|
representative's own cash or securities acceptable to the court |
|
with a depository described by Subsection (b), if the deposit is |
|
otherwise proper. |
|
(b) Cash or securities must be deposited under this section |
|
in: |
|
(1) a depository described by Section 305.154(c); or |
|
(2) any other corporate depository approved by the |
|
court. |
|
(c) A deposit may be in an amount or value equal to the |
|
amount of the bond required or in a lesser amount or value, in which |
|
case the amount of the bond is reduced by the amount or value of the |
|
deposit. |
|
(d) The amount of cash or securities on deposit may be |
|
increased or decreased, by court order from time to time, as the |
|
interest of the estate requires. |
|
(e) A deposit of cash or securities made instead of a surety |
|
or sureties on a bond may be withdrawn or released only on order of a |
|
court having jurisdiction. |
|
(f) A creditor has the same rights against a personal |
|
representative and deposits made under this section as are provided |
|
for recovery against sureties on a bond. (Tex. Prob. Code, Sec. 194, |
|
Subdivs. 7, 8(b), (c), (d).) |
|
Sec. 305.157. RECEIPT FOR DEPOSITS OF PERSONAL |
|
REPRESENTATIVE. (a) A depository that receives a deposit made |
|
under Section 305.156 instead of a surety or sureties on a bond |
|
shall issue a receipt for the deposit that: |
|
(1) shows the amount of cash deposited or the amount |
|
and description of the securities deposited, as applicable; and |
|
(2) states that the depository agrees to disburse or |
|
deliver the cash or securities only on receipt of a certified copy |
|
of an order of the court in which the proceedings are pending. |
|
(b) A receipt issued by a depository under Subsection (a) |
|
shall be attached to the personal representative's bond and be |
|
delivered to and filed by the county clerk after approval by the |
|
judge. (Tex. Prob. Code, Sec. 194, Subdiv. 8(a).) |
|
Sec. 305.158. BOND REQUIRED INSTEAD OF DEPOSITS BY PERSONAL |
|
REPRESENTATIVE. (a) The court may on its own motion or on the |
|
written application by the personal representative or any other |
|
person interested in the estate: |
|
(1) require that an adequate bond be given instead of a |
|
deposit under Section 305.156; or |
|
(2) authorize withdrawal of a deposit made under |
|
Section 305.156 and substitution of a bond with sureties. |
|
(b) Not later than the 20th day after the date of entry of |
|
the court's motion or the date the personal representative is |
|
personally served with notice of the filing of an application by |
|
another person interested in the estate, the representative shall |
|
file a sworn statement showing the condition of the estate. |
|
(c) A personal representative who fails to comply with |
|
Subsection (b) is subject to removal as in other cases. |
|
(d) The personal representative's deposit under Section |
|
305.156 may not be released or withdrawn until the court has: |
|
(1) been satisfied as to the condition of the estate; |
|
(2) determined the amount of the bond; and |
|
(3) received and approved the bond. (Tex. Prob. Code, |
|
Sec. 194, Subdiv. 8(e).) |
|
Sec. 305.159. WITHDRAWAL OF DEPOSITS ON CLOSING OF |
|
ADMINISTRATION. (a) Any deposit of assets of the personal |
|
representative, the estate, or a surety that remains at the time an |
|
estate is closed shall be released by court order and paid to the |
|
person or persons entitled to the deposit. |
|
(b) Except as provided by Subsection (c), a writ of |
|
attachment or garnishment does not lie against a deposit described |
|
by Subsection (a). |
|
(c) A writ of attachment or garnishment may lie against a |
|
deposit described by Subsection (a) as to a claim of a creditor of |
|
the estate being administered or a person interested in the estate, |
|
including a distributee or ward, to the extent the court has ordered |
|
distribution. (Tex. Prob. Code, Sec. 194, Subdiv. 9.) |
|
Sec. 305.160. INCREASED OR ADDITIONAL BONDS IN CERTAIN |
|
CIRCUMSTANCES. The provisions of this subchapter regarding the |
|
deposit of cash and securities govern, to the extent the provisions |
|
may be applicable, the court orders to be entered when: |
|
(1) one of the following circumstances occurs: |
|
(A) estate property has been authorized to be |
|
sold or rented; |
|
(B) money has been borrowed on estate property; |
|
or |
|
(C) real property, or an interest in real |
|
property, has been authorized to be leased for mineral development |
|
or subjected to unitization; and |
|
(2) the general bond has been found to be |
|
insufficient. (Tex. Prob. Code, Sec. 194, Subdiv. 14.) |
|
[Sections 305.161-305.200 reserved for expansion] |
|
SUBCHAPTER E. BOND SURETIES |
|
Sec. 305.201. PERSONAL OR AUTHORIZED CORPORATE SURETIES. |
|
(a) The surety or sureties on a bond may be personal or authorized |
|
corporate sureties. |
|
(b) A bond with sureties who are individuals must have at |
|
least two sureties, each of whom must: |
|
(1) execute an affidavit in the manner provided by |
|
this subchapter; and |
|
(2) own property in this state, excluding property |
|
exempt by law, that the judge is satisfied is sufficient to qualify |
|
the person as a surety as required by law. |
|
(c) A bond with an authorized corporate surety is only |
|
required to have one surety, except as provided by law. (Tex. Prob. |
|
Code, Sec. 194, Subdivs. 10, 12 (part).) |
|
Sec. 305.202. SURETIES FOR CERTAIN BONDS. (a) If the |
|
amount of a bond exceeds $50,000, the court may require that the |
|
bond be signed by: |
|
(1) at least two authorized corporate sureties; or |
|
(2) one authorized corporate surety and at least two |
|
good and sufficient personal sureties. |
|
(b) The estate shall pay the cost of a bond with corporate |
|
sureties. (Tex. Prob. Code, Sec. 194, Subdiv. 11.) |
|
Sec. 305.203. AFFIDAVIT OF PERSONAL SURETY. (a) Before a |
|
judge may consider a bond with personal sureties, each person |
|
offered as surety must execute an affidavit stating the amount by |
|
which the person's assets that are reachable by creditors exceeds |
|
the person's liabilities, and each affidavit must be presented to |
|
the judge for consideration. |
|
(b) The total worth of the personal sureties on a bond must |
|
equal at least twice the amount of the bond. |
|
(c) An affidavit presented to and approved by the judge |
|
under this section shall be attached to and form part of the bond. |
|
(Tex. Prob. Code, Sec. 201(a).) |
|
Sec. 305.204. LIEN ON REAL PROPERTY OWNED BY PERSONAL |
|
SURETIES. (a) If a judge finds that the estimated value of |
|
personal property of the estate that cannot be deposited, as |
|
provided by Subchapter D, is such that personal sureties cannot be |
|
accepted without the creation of a specific lien on real property |
|
owned by each of the sureties, the judge shall enter an order |
|
requiring each surety to: |
|
(1) designate real property that: |
|
(A) is owned by the surety and located in this |
|
state; |
|
(B) is subject to execution; and |
|
(C) has a value that exceeds all liens and unpaid |
|
taxes by an amount at least equal to the amount of the bond; and |
|
(2) give an adequate legal description of the real |
|
property designated under Subdivision (1). |
|
(b) The surety shall incorporate the information required |
|
in the order under Subsection (a) in an affidavit. Following |
|
approval by the judge, the affidavit shall be attached to and form |
|
part of the bond. |
|
(c) A lien arises as security for the performance of the |
|
obligation of the bond only on the real property designated in the |
|
affidavit. |
|
(d) Before letters testamentary or of administration are |
|
issued to the personal representative whose bond includes an |
|
affidavit under this section, the court clerk shall mail a |
|
statement to the office of the county clerk of each county in which |
|
any real property designated in the affidavit is located. The |
|
statement must be signed by the court clerk and include: |
|
(1) a sufficient description of the real property |
|
located in that county; |
|
(2) the names of the principal and sureties on the |
|
bond; |
|
(3) the amount of the bond; and |
|
(4) the name of the estate and court in which the bond |
|
is given. |
|
(e) Each county clerk who receives a statement required by |
|
Subsection (d) shall record the statement in the county deed |
|
records. Each recorded statement shall be indexed in a manner that |
|
permits the convenient determination of the existence and character |
|
of the liens described in the statements. |
|
(f) The recording and indexing required by Subsection (e) |
|
constitutes constructive notice to all persons regarding the |
|
existence of the lien on real property located in the county, |
|
effective as of the date of the indexing. |
|
(g) If each personal surety subject to a court order under |
|
this section does not comply with the order, the judge may require |
|
that the bond be signed by: |
|
(1) an authorized corporate surety; or |
|
(2) an authorized corporate surety and at least two |
|
personal sureties. (Tex. Prob. Code, Secs. 201(b), 202.) |
|
Sec. 305.205. SUBORDINATION OF LIEN ON REAL PROPERTY OWNED |
|
BY PERSONAL SURETIES. (a) A personal surety required to create a |
|
lien on specific real property under Section 305.204 who wishes to |
|
lease the real property for mineral development may file a written |
|
application in the court in which the proceedings are pending |
|
requesting subordination of the lien to the proposed lease. |
|
(b) The judge may enter an order granting the application. |
|
(c) A certified copy of the order, filed and recorded in the |
|
deed records of the proper county, is sufficient to subordinate the |
|
lien to the rights of a lessee under the proposed lease. (Tex. |
|
Prob. Code, Sec. 201(c).) |
|
Sec. 305.206. RELEASE OF LIEN ON REAL PROPERTY OWNED BY |
|
PERSONAL SURETIES. (a) A personal surety who has given a lien |
|
under Section 305.204 may apply to the court to have the lien |
|
released. |
|
(b) The court shall order the lien released if: |
|
(1) the court is satisfied that the bond is sufficient |
|
without the lien; or |
|
(2) sufficient other real or personal property of the |
|
surety is substituted on the same terms required for the lien that |
|
is to be released. |
|
(c) If the personal surety does not offer a lien on other |
|
substituted property under Subsection (b)(2) and the court is not |
|
satisfied that the bond is sufficient without the substitution of |
|
other property, the court shall order the personal representative |
|
to appear and give a new bond. |
|
(d) A certified copy of the court's order releasing the lien |
|
and describing the property that was subject to the lien has the |
|
effect of cancelling the lien if the order is filed with the county |
|
clerk of the county in which the property is located and recorded in |
|
the deed records of that county. (Tex. Prob. Code, Secs. 211, 212.) |
|
Sec. 305.207. DEPOSITS BY PERSONAL SURETY. Instead of |
|
executing an affidavit under Section 305.203 or creating a lien |
|
under Section 305.204 when required, a personal surety may deposit |
|
the surety's own cash or securities instead of pledging real |
|
property as security. The deposit: |
|
(1) must be made in the same manner a personal |
|
representative deposits the representative's own cash or |
|
securities; and |
|
(2) is subject, to the extent applicable, to the |
|
provisions governing the same type of deposits made by personal |
|
representatives. (Tex. Prob. Code, Sec. 194, Subdiv. 12 (part).) |
|
[Sections 305.208-305.250 reserved for expansion] |
|
SUBCHAPTER F. NEW BONDS |
|
Sec. 305.251. GROUNDS FOR REQUIRING NEW BOND. (a) A |
|
personal representative may be required to give a new bond if: |
|
(1) a surety on a bond dies, moves out of this state, |
|
or becomes insolvent; |
|
(2) in the court's opinion: |
|
(A) the sureties on a bond are insufficient; or |
|
(B) a bond is defective; |
|
(3) the amount of a bond is insufficient; |
|
(4) a surety on a bond petitions the court to be |
|
discharged from future liability on the bond; or |
|
(5) a bond and the record of the bond have been lost or |
|
destroyed. |
|
(b) Any person interested in the estate may have the |
|
personal representative cited to appear and show cause why the |
|
representative should not be required to give a new bond by filing a |
|
written application with the county clerk of the county in which the |
|
probate proceedings are pending. The application must allege that: |
|
(1) the bond is insufficient or defective; or |
|
(2) the bond and the record of the bond have been lost |
|
or destroyed. (Tex. Prob. Code, Secs. 203, 204.) |
|
Sec. 305.252. COURT ORDER OR CITATION ON NEW BOND. (a) |
|
When a judge becomes aware that a bond is in any respect |
|
insufficient or that a bond and the record of the bond have been |
|
lost or destroyed, the judge shall: |
|
(1) without delay and without notice enter an order |
|
requiring the personal representative to give a new bond; or |
|
(2) without delay have the representative cited to |
|
show cause why the representative should not be required to give a |
|
new bond. |
|
(b) An order entered under Subsection (a)(1) must state: |
|
(1) the reasons for requiring a new bond; |
|
(2) the amount of the new bond; and |
|
(3) the period within which the new bond must be given, |
|
which may not be earlier than the 10th day after the date of the |
|
order. |
|
(c) A personal representative who opposes an order entered |
|
under Subsection (a)(1) may demand a hearing on the order. The |
|
hearing must be held before the expiration of the period within |
|
which the new bond must be given. (Tex. Prob. Code, Secs. 205, |
|
206(a).) |
|
Sec. 305.253. SHOW CAUSE HEARING ON NEW BOND REQUIREMENT. |
|
(a) On the return of a citation ordering a personal representative |
|
to show cause why the representative should not be required to give |
|
a new bond, the judge shall, on the date specified for the hearing |
|
of the matter, inquire into the sufficiency of the reasons for |
|
requiring a new bond. |
|
(b) If the judge is satisfied that a new bond should be |
|
required, the judge shall enter an order requiring a new bond. The |
|
order must state: |
|
(1) the amount of the new bond; and |
|
(2) the period within which the new bond must be given, |
|
which may not be later than the 20th day after the date of the order. |
|
(Tex. Prob. Code, Sec. 206(b).) |
|
Sec. 305.254. EFFECT OF ORDER REQUIRING NEW BOND. (a) An |
|
order requiring a personal representative to give a new bond has the |
|
effect of suspending the representative's powers. |
|
(b) After the order is entered, the personal representative |
|
may not pay out any of the estate's money or take any other official |
|
action, except to preserve estate property, until the new bond is |
|
given and approved. (Tex. Prob. Code, Sec. 207.) |
|
Sec. 305.255. NEW BOND IN DECREASED AMOUNT. (a) A personal |
|
representative required to give a bond may at any time file with the |
|
clerk a written application requesting that the court reduce the |
|
amount of the bond. |
|
(b) On the filing of an application under Subsection (a), |
|
the clerk shall promptly issue and have notice posted to all |
|
interested persons and the sureties on the bond. The notice must |
|
inform the interested persons and sureties of: |
|
(1) the fact that the application has been filed; |
|
(2) the nature of the application; and |
|
(3) the time the judge will hear the application. |
|
(c) The judge may permit the filing of a new bond in a |
|
reduced amount if: |
|
(1) proof is submitted that a bond in an amount less |
|
than the bond in effect will be adequate to meet the requirements of |
|
law and protect the estate; and |
|
(2) the judge approves an accounting filed at the time |
|
of the application. (Tex. Prob. Code, Sec. 208.) |
|
Sec. 305.256. REQUEST BY SURETY FOR NEW BOND. (a) A surety |
|
on a bond may at any time file with the clerk a petition requesting |
|
that the court in which the proceedings are pending: |
|
(1) require the personal representative to give a new |
|
bond; and |
|
(2) discharge the petitioner from all liability for |
|
the future acts of the representative. |
|
(b) On the filing of a petition under Subsection (a), the |
|
personal representative shall be cited to appear and give a new |
|
bond. (Tex. Prob. Code, Sec. 210.) |
|
Sec. 305.257. DISCHARGE OF FORMER SURETIES ON EXECUTION OF |
|
NEW BOND. When a new bond has been given and approved, the court |
|
shall enter an order discharging the sureties on the former bond |
|
from all liability for the future acts of the principal on the bond. |
|
(Tex. Prob. Code, Sec. 209.) |
|
CHAPTER 306. GRANTING AND |
|
|
ISSUANCE OF LETTERS |
|
|
Sec. 306.001. GRANTING OF LETTERS TESTAMENTARY |
|
Sec. 306.002. GRANTING OF LETTERS OF ADMINISTRATION |
|
Sec. 306.003. ORDER GRANTING LETTERS |
|
Sec. 306.004. ISSUANCE OF ORIGINAL LETTERS |
|
Sec. 306.005. FORM AND CONTENT OF LETTERS |
|
Sec. 306.006. REPLACEMENT AND OTHER ADDITIONAL LETTERS |
|
Sec. 306.007. EFFECT OF LETTERS OR CERTIFICATE |
|
CHAPTER 306. GRANTING AND |
|
ISSUANCE OF LETTERS |
|
Sec. 306.001. GRANTING OF LETTERS TESTAMENTARY. (a) |
|
Before the 21st day after the date a will has been probated, the |
|
court shall grant letters testamentary, if permitted by law, to |
|
each executor appointed by the will who: |
|
(1) is not disqualified; and |
|
(2) is willing to accept the trust and qualify |
|
according to law. |
|
(b) Failure of the court to issue letters testamentary |
|
within the period prescribed by this section does not affect the |
|
validity of any letters testamentary issued in accordance with law |
|
after that period. (Tex. Prob. Code, Secs. 178(a), (c).) |
|
Sec. 306.002. GRANTING OF LETTERS OF ADMINISTRATION. (a) |
|
Subject to Subsection (b), the court hearing an application under |
|
Chapter 301 shall grant: |
|
(1) the administration of a decedent's estate if the |
|
decedent died intestate; or |
|
(2) the administration of the decedent's estate with |
|
the will annexed if the decedent died leaving a will but: |
|
(A) the will does not name an executor; or |
|
(B) the executor named in the will: |
|
(i) is deceased; |
|
(ii) fails to accept and qualify before the |
|
21st day after the date the will is probated; or |
|
(iii) fails to present the will for probate |
|
before the 31st day after the date of the decedent's death and the |
|
court finds there was no good cause for that failure. |
|
(b) The court may not grant any administration of an estate |
|
unless a necessity for the administration exists, as determined by |
|
the court. |
|
(c) The court may find other instances of necessity for an |
|
administration based on proof before the court, but a necessity is |
|
considered to exist if: |
|
(1) there are two or more debts against the estate; |
|
(2) there is a desire for the county court to partition |
|
the estate among the distributees; or |
|
(3) the administration is necessary to receive or |
|
recover funds or other property due the estate. (Tex. Prob. Code, |
|
Sec. 178(b).) |
|
Sec. 306.003. ORDER GRANTING LETTERS. When letters |
|
testamentary or of administration are granted, the court shall |
|
enter an order to that effect stating: |
|
(1) the name of the decedent; |
|
(2) the name of the person to whom the letters are |
|
granted; |
|
(3) the amount of any required bond; |
|
(4) the name of at least one but not more than three |
|
disinterested persons appointed to appraise the estate and return |
|
the appraisement to the court, if: |
|
(A) any interested person applies to the court |
|
for the appointment of an appraiser; or |
|
(B) the court considers an appraisement to be |
|
necessary; and |
|
(5) that the clerk shall issue letters in accordance |
|
with the order when the person to whom the letters are granted has |
|
qualified according to law. (Tex. Prob. Code, Sec. 181.) |
|
Sec. 306.004. ISSUANCE OF ORIGINAL LETTERS. When an |
|
executor or administrator has qualified in the manner required by |
|
law, the clerk of the court granting the letters testamentary or of |
|
administration shall promptly issue and deliver the letters to the |
|
executor or administrator. If more than one person qualifies as |
|
executor or administrator, the clerk shall issue the letters to |
|
each person who qualifies. (Tex. Prob. Code, Sec. 182.) |
|
Sec. 306.005. FORM AND CONTENT OF LETTERS. Letters |
|
testamentary or of administration shall be in the form of a |
|
certificate of the clerk of the court granting the letters, |
|
attested by the court's seal, that states: |
|
(1) the executor or administrator, as applicable, has |
|
qualified as executor or administrator in the manner required by |
|
law; |
|
(2) the date of the qualification; and |
|
(3) the name of the decedent. (Tex. Prob. Code, Sec. |
|
183.) |
|
Sec. 306.006. REPLACEMENT AND OTHER ADDITIONAL LETTERS. |
|
When letters testamentary or of administration have been destroyed |
|
or lost, the clerk shall issue other letters to replace the original |
|
letters, which have the same effect as the original letters. The |
|
clerk shall also issue any number of letters as and when requested |
|
by the person or persons who hold the letters. (Tex. Prob. Code, |
|
Sec. 187.) |
|
Sec. 306.007. EFFECT OF LETTERS OR CERTIFICATE. Letters |
|
testamentary or of administration or a certificate of the clerk of |
|
the court that granted the letters, under the court's seal, |
|
indicating that the letters have been issued, is sufficient |
|
evidence of: |
|
(1) the appointment and qualification of the personal |
|
representative of an estate; and |
|
(2) the date of qualification. (Tex. Prob. Code, Sec. |
|
186.) |
|
CHAPTER 307. VALIDITY OF CERTAIN ACTS OF EXECUTORS AND |
ADMINISTRATORS |
|
ADMINISTRATORS |
|
|
Sec. 307.001. RIGHTS OF GOOD FAITH PURCHASERS |
|
Sec. 307.002. JOINT EXECUTORS OR ADMINISTRATORS |
|
CHAPTER 307. VALIDITY OF CERTAIN ACTS OF EXECUTORS AND |
|
ADMINISTRATORS |
|
Sec. 307.001. RIGHTS OF GOOD FAITH PURCHASERS. (a) This |
|
section applies only to an act performed by a qualified executor or |
|
administrator in that capacity and in conformity with the law and |
|
the executor's or administrator's authority. |
|
(b) An act continues to be valid for all intents and |
|
purposes in regard to the rights of an innocent purchaser who |
|
purchases any of the estate property from the executor or |
|
administrator for valuable consideration, in good faith, and |
|
without notice of any illegality in the title to the property, even |
|
if the act or the authority under which the act was performed is |
|
subsequently set aside, annulled, and declared invalid. (Tex. |
|
Prob. Code, Sec. 188.) |
|
Sec. 307.002. JOINT EXECUTORS OR ADMINISTRATORS. (a) |
|
Except as provided by Subsection (b), if there is more than one |
|
executor or administrator of an estate at the same time, the acts of |
|
one of the executors or administrators in that capacity are valid as |
|
if all the executors or administrators had acted jointly. If one of |
|
the executors or administrators dies, resigns, or is removed, a |
|
co-executor or co-administrator of the estate shall proceed with |
|
the administration as if the death, resignation, or removal had not |
|
occurred. |
|
(b) If there is more than one executor or administrator of |
|
an estate at the same time, all of the qualified executors or |
|
administrators who are acting in that capacity must join in the |
|
conveyance of real estate unless the court, after due hearing, |
|
authorizes fewer than all to act. (Tex. Prob. Code, Sec. 240.) |
|
CHAPTER 308. |
NOTICE TO BENEFICIARIES AND CLAIMANTS |
|
SUBCHAPTER A. NOTICE TO CERTAIN BENEFICIARIES AFTER PROBATE OF |
WILL |
|
WILL |
|
|
Sec. 308.001. DEFINITION |
|
Sec. |
308.002. REQUIRED NOTICE TO CERTAIN BENEFICIARIES |
|
AFTER PROBATE OF WILL |
|
Sec. 308.003. CONTENTS OF NOTICE |
|
Sec. 308.004. AFFIDAVIT OR CERTIFICATE |
|
[Sections 308.005-308.050 reserved for expansion] |
|
SUBCHAPTER B. NOTICE TO CLAIMANTS |
|
|
Sec. |
308.051. REQUIRED NOTICE REGARDING PRESENTMENT OF |
|
CLAIMS IN GENERAL |
|
Sec. 308.052. PROOF OF PUBLICATION |
|
Sec. 308.053. REQUIRED NOTICE TO SECURED CREDITOR |
|
Sec. 308.054. PERMISSIVE NOTICE TO UNSECURED CREDITOR |
|
Sec. 308.055. ONE NOTICE SUFFICIENT |
|
Sec. |
308.056. LIABILITY FOR FAILURE TO GIVE REQUIRED |
|
NOTICE |
|
CHAPTER 308. NOTICE TO BENEFICIARIES AND CLAIMANTS |
|
SUBCHAPTER A. NOTICE TO CERTAIN BENEFICIARIES AFTER PROBATE OF |
|
WILL |
|
Sec. 308.001. DEFINITION. In this subchapter, |
|
"beneficiary" means a person, entity, state, governmental agency of |
|
the state, charitable organization, or trust entitled to receive |
|
property under the terms of a decedent's will, to be determined for |
|
purposes of this subchapter with the assumption that each person |
|
who is alive on the date of the decedent's death survives any period |
|
required to receive the bequest as specified by the terms of the |
|
will. (Tex. Prob. Code, Sec. 128A(a), as amended Ch. 801, Acts 80th |
|
Leg., R.S., 2007.) |
|
Sec. 308.002. REQUIRED NOTICE TO CERTAIN BENEFICIARIES |
|
AFTER PROBATE OF WILL. (a) Except as provided by Subsection (c), |
|
not later than the 60th day after the date of an order admitting a |
|
decedent's will to probate, the personal representative of the |
|
decedent's estate, including an independent executor or |
|
independent administrator, shall give notice that complies with |
|
Section 308.003 to each beneficiary named in the will whose |
|
identity and address are known to the representative or, through |
|
reasonable diligence, can be ascertained. If, after the 60th day |
|
after the date of the order, the representative becomes aware of the |
|
identity and address of a beneficiary who was not given notice on or |
|
before the 60th day, the representative shall give the notice as |
|
soon as possible after becoming aware of that information. |
|
(b) Notwithstanding the requirement under Subsection (a) |
|
that the personal representative give the notice to the |
|
beneficiary, the representative shall give the notice with respect |
|
to a beneficiary described by this subsection as follows: |
|
(1) if the beneficiary is a trust, to the trustee, |
|
unless the representative is the trustee, in which case the |
|
representative shall give the notice to the person or class of |
|
persons first eligible to receive the trust income, to be |
|
determined for purposes of this subdivision as if the trust were in |
|
existence on the date of the decedent's death; |
|
(2) if the beneficiary has a court-appointed guardian |
|
or conservator, to that guardian or conservator; |
|
(3) if the beneficiary is a minor for whom no guardian |
|
or conservator has been appointed, to a parent of the minor; and |
|
(4) if the beneficiary is a charity that for any reason |
|
cannot be notified, to the attorney general. |
|
(c) A personal representative is not required to give the |
|
notice otherwise required by this section to a beneficiary who: |
|
(1) made an appearance in the proceeding with respect |
|
to the decedent's estate before the will was admitted to probate; or |
|
(2) received a copy of the will that was admitted to |
|
probate and waived the right to receive the notice in an instrument |
|
that: |
|
(A) acknowledges the receipt of the copy of the |
|
will; |
|
(B) is signed by the beneficiary; and |
|
(C) is filed with the court. |
|
(d) The notice required by this section must be sent by |
|
registered or certified mail, return receipt requested. (Tex. |
|
Prob. Code, Secs. 128A(b), (c), (d), (f).) |
|
Sec. 308.003. CONTENTS OF NOTICE. The notice required by |
|
Section 308.002 must: |
|
(1) state: |
|
(A) the name and address of the beneficiary to |
|
whom the notice is given or, for a beneficiary described by Section |
|
308.002(b), the name and address of the beneficiary for whom the |
|
notice is given and of the person to whom the notice is given; |
|
(B) the decedent's name; |
|
(C) that the decedent's will has been admitted to |
|
probate; |
|
(D) that the beneficiary to whom or for whom the |
|
notice is given is named as a beneficiary in the will; and |
|
(E) the personal representative's name and |
|
contact information; and |
|
(2) contain as attachments a copy of the will admitted |
|
to probate and of the order admitting the will to probate. (Tex. |
|
Prob. Code, Sec. 128A(e).) |
|
Sec. 308.004. AFFIDAVIT OR CERTIFICATE. (a) Not later than |
|
the 90th day after the date of an order admitting a will to probate, |
|
the personal representative shall file with the clerk of the court |
|
in which the decedent's estate is pending a sworn affidavit of the |
|
representative or a certificate signed by the representative's |
|
attorney stating: |
|
(1) for each beneficiary to whom notice was required |
|
to be given under this subchapter, the name and address of the |
|
beneficiary to whom the representative gave the notice or, for a |
|
beneficiary described by Section 308.002(b), the name and address |
|
of the beneficiary and of the person to whom the notice was given; |
|
(2) the name and address of each beneficiary who filed |
|
a waiver of the notice; |
|
(3) the name of each beneficiary whose identity or |
|
address could not be ascertained despite the representative's |
|
exercise of reasonable diligence; and |
|
(4) any other information necessary to explain the |
|
representative's inability to give the notice to or for any |
|
beneficiary as required by this subchapter. |
|
(b) The affidavit or certificate required by Subsection (a) |
|
may be included with any pleading or other document filed with the |
|
court clerk, including the inventory, appraisement, and list of |
|
claims or an application for an extension of the deadline to file |
|
the inventory, appraisement, and list of claims, provided that the |
|
pleading or other document is filed not later than the date the |
|
affidavit or certificate is required to be filed under Subsection |
|
(a). (Tex. Prob. Code, Secs. 128A(g), (h).) |
|
[Sections 308.005-308.050 reserved for expansion] |
|
SUBCHAPTER B. NOTICE TO CLAIMANTS |
|
Sec. 308.051. REQUIRED NOTICE REGARDING PRESENTMENT OF |
|
CLAIMS IN GENERAL. (a) Within one month after receiving letters |
|
testamentary or of administration, a personal representative of an |
|
estate shall provide notice requiring each person who has a claim |
|
against the estate to present the claim within the period |
|
prescribed by law by: |
|
(1) having the notice published in a newspaper printed |
|
in the county in which the letters were issued; and |
|
(2) if the decedent remitted or should have remitted |
|
taxes administered by the comptroller, sending the notice to the |
|
comptroller by certified or registered mail. |
|
(b) Notice provided under Subsection (a) must include: |
|
(1) the date the letters testamentary or of |
|
administration were issued to the personal representative; |
|
(2) the address to which a claim may be presented; and |
|
(3) an instruction of the representative's choice that |
|
the claim be addressed in care of: |
|
(A) the representative; |
|
(B) the representative's attorney; or |
|
(C) "Representative, Estate of __________" |
|
(naming the estate). |
|
(c) If a newspaper is not printed in the county in which the |
|
letters testamentary or of administration were issued, the notice |
|
must be posted and the return made and filed as otherwise required |
|
by this title. (Tex. Prob. Code, Secs. 294(a), (c).) |
|
Sec. 308.052. PROOF OF PUBLICATION. A copy of the published |
|
notice required by Section 308.051(a)(1), together with the |
|
publisher's affidavit, sworn to and subscribed before a proper |
|
officer, to the effect that the notice was published as provided in |
|
this title for the service of citation or notice by publication, |
|
shall be filed in the court in which the cause is pending. (Tex. |
|
Prob. Code, Sec. 294(b).) |
|
Sec. 308.053. REQUIRED NOTICE TO SECURED CREDITOR. (a) |
|
Within two months after receiving letters testamentary or of |
|
administration, a personal representative of an estate shall give |
|
notice of the issuance of the letters to each person the |
|
representative knows to have a claim for money against the estate |
|
that is secured by estate property. |
|
(b) Within a reasonable period after a personal |
|
representative obtains actual knowledge of the existence of a |
|
person who has a secured claim for money against the estate and to |
|
whom notice was not previously given, the representative shall give |
|
notice to the person of the issuance of the letters testamentary or |
|
of administration. |
|
(c) Notice provided under this section must be: |
|
(1) sent by certified or registered mail, return |
|
receipt requested; and |
|
(2) addressed to the record holder of the claim at the |
|
record holder's last known post office address. |
|
(d) The following shall be filed with the clerk of the court |
|
in which the letters testamentary or of administration were issued: |
|
(1) a copy of each notice and of each return receipt; |
|
and |
|
(2) the personal representative's affidavit stating: |
|
(A) that the notice was mailed as required by |
|
law; and |
|
(B) the name of the person to whom the notice was |
|
mailed, if that name is not shown on the notice or receipt. (Tex. |
|
Prob. Code, Sec. 295.) |
|
Sec. 308.054. PERMISSIVE NOTICE TO UNSECURED CREDITOR. (a) |
|
At any time before an estate administration is closed, a personal |
|
representative may give notice by certified or registered mail, |
|
return receipt requested, to an unsecured creditor who has a claim |
|
for money against the estate. |
|
(b) Notice given under Subsection (a) must: |
|
(1) expressly state that the creditor must present the |
|
claim within four months after the date of the receipt of the notice |
|
or the claim is barred, if the claim is not barred by the general |
|
statutes of limitation; and |
|
(2) include: |
|
(A) the date the letters testamentary or of |
|
administration held by the personal representative were issued to |
|
the representative; |
|
(B) the address to which the claim may be |
|
presented; and |
|
(C) an instruction of the representative's |
|
choice that the claim be addressed in care of: |
|
(i) the representative; |
|
(ii) the representative's attorney; or |
|
(iii) "Representative, Estate of _______" |
|
(naming the estate). (Tex. Prob. Code, Sec. 294(d).) |
|
Sec. 308.055. ONE NOTICE SUFFICIENT. A personal |
|
representative is not required to give a notice required by Section |
|
308.051 or 308.053 if another person also appointed as personal |
|
representative of the estate or a former personal representative of |
|
the estate has given that notice. (Tex. Prob. Code, Sec. 296.) |
|
Sec. 308.056. LIABILITY FOR FAILURE TO GIVE REQUIRED |
|
NOTICE. A personal representative who fails to give a notice |
|
required by Section 308.051 or 308.053, or to cause the notice to be |
|
given, and the sureties on the representative's bond are liable for |
|
any damage a person suffers due to that neglect, unless it appears |
|
that the person otherwise had notice. (Tex. Prob. Code, Sec. 297.) |
|
CHAPTER 309. |
INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS |
|
SUBCHAPTER A. APPRAISERS |
|
|
Sec. 309.001. APPOINTMENT OF APPRAISERS |
|
Sec. 309.002. APPRAISERS' FEES |
|
Sec. 309.003. FAILURE OR REFUSAL TO ACT BY APPRAISERS |
|
[Sections 309.004-309.050 reserved for expansion] |
|
SUBCHAPTER B. REQUIREMENTS FOR INVENTORY, APPRAISEMENT, AND LIST |
OF CLAIMS |
|
OF CLAIMS |
|
|
Sec. 309.051. INVENTORY AND APPRAISEMENT |
|
Sec. 309.052. LIST OF CLAIMS |
|
Sec. 309.053. AFFIDAVIT OF PERSONAL REPRESENTATIVE |
|
Sec. 309.054. APPROVAL OR DISAPPROVAL BY THE COURT |
|
Sec. |
309.055. FAILURE OF JOINT PERSONAL |
|
|
|
|
APPRAISEMENT, AND LIST OF CLAIMS |
|
[Sections 309.056-309.100 reserved for expansion] |
|
SUBCHAPTER C. CHANGES TO INVENTORY, APPRAISEMENT, AND LIST OF |
CLAIMS |
|
CLAIMS |
|
|
Sec. |
309.101. DISCOVERY OF ADDITIONAL PROPERTY OR |
|
CLAIMS |
|
Sec. |
309.102. ADDITIONAL INVENTORY AND APPRAISEMENT OR |
|
LIST OF CLAIMS |
|
Sec. |
309.103. CORRECTION OF INVENTORY, APPRAISEMENT, |
|
|
|
|
UNJUST ITEM |
|
Sec. 309.104. REAPPRAISEMENT |
|
[Sections 309.105-309.150 reserved for expansion] |
|
SUBCHAPTER D. USE OF INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS AS |
EVIDENCE |
|
EVIDENCE |
|
|
Sec. |
309.151. USE OF INVENTORY, APPRAISEMENT, AND LIST |
|
OF CLAIMS AS EVIDENCE |
|
CHAPTER 309. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS |
|
SUBCHAPTER A. APPRAISERS |
|
Sec. 309.001. APPOINTMENT OF APPRAISERS. (a) At any time |
|
after letters testamentary or of administration are granted, the |
|
court, for good cause, on the court's own motion or on the motion of |
|
an interested party shall appoint at least one but not more than |
|
three disinterested persons who are residents of the county in |
|
which the letters were granted to appraise the estate property. |
|
(b) At any time after letters testamentary or of |
|
administration are granted, the court, for good cause shown, on the |
|
court's own motion or on the motion of an interested person shall |
|
appoint at least one but not more than three disinterested persons |
|
who are residents of the county in which the letters were granted to |
|
appraise the estate property. |
|
(c) If the court makes an appointment under Subsection (a) |
|
or (b) and part of the estate is located in a county other than the |
|
county in which the letters were granted, the court, if the court |
|
considers necessary, may appoint at least one but not more than |
|
three disinterested persons who are residents of the county in |
|
which the relevant part of the estate is located to appraise the |
|
estate property located in that county. (Tex. Prob. Code, Sec. 248, |
|
as amended Acts 79th Leg., R.S., Chs. 701, 765.) |
|
Sec. 309.002. APPRAISERS' FEES. An appraiser appointed by |
|
the court as herein authorized is entitled to receive compensation, |
|
payable out of the estate, of at least $5 for each day the appraiser |
|
actually serves in performing the appraiser's duties. (Tex. Prob. |
|
Code, Sec. 253.) |
|
Sec. 309.003. FAILURE OR REFUSAL TO ACT BY APPRAISERS. If |
|
an appraiser appointed under Section 309.001 fails or refuses to |
|
act, the court by one or more similar orders shall remove the |
|
appraiser and appoint one or more other appraisers, as the case |
|
requires. (Tex. Prob. Code, Sec. 249.) |
|
[Sections 309.004-309.050 reserved for expansion] |
|
SUBCHAPTER B. REQUIREMENTS FOR INVENTORY, APPRAISEMENT, AND LIST |
|
OF CLAIMS |
|
Sec. 309.051. INVENTORY AND APPRAISEMENT. (a) Except as |
|
provided by Subsection (c) or unless a longer period is granted by |
|
the court, before the 91st day after the date the personal |
|
representative qualifies, the representative shall file with the |
|
court clerk a single written instrument that contains a verified, |
|
full, and detailed inventory of all estate property that has come |
|
into the representative's possession or of which the representative |
|
has knowledge. The inventory must: |
|
(1) include: |
|
(A) all estate real property located in this |
|
state; and |
|
(B) all estate personal property regardless of |
|
where the property is located; and |
|
(2) specify: |
|
(A) which portion of the property, if any, is |
|
separate property and which, if any, is community property; and |
|
(B) if estate property is owned in common with |
|
others, the interest of the estate in that property and the names |
|
and relationship, if known, of the co-owners. |
|
(b) The personal representative shall: |
|
(1) set out in the inventory the representative's |
|
appraisement of the fair market value on the date of the decedent's |
|
death of each item in the inventory; or |
|
(2) if the court has appointed one or more appraisers |
|
for the estate under Subchapter A: |
|
(A) determine the fair market value of each item |
|
in the inventory with the assistance of the appraiser or |
|
appraisers; and |
|
(B) set out that appraisement in the inventory. |
|
(c) The court for good cause shown may require the personal |
|
representative to file the inventory and appraisement within a |
|
shorter period than the period prescribed by Subsection (a). |
|
(d) The inventory, when approved by the court and filed with |
|
the court clerk, is for all purposes the inventory and appraisement |
|
of the estate referred to in this title. (Tex. Prob. Code, Sec. |
|
250.) |
|
Sec. 309.052. LIST OF CLAIMS. A complete list of claims due |
|
or owing to the estate must be attached to the inventory and |
|
appraisement required by Section 309.051. The list of claims must |
|
state: |
|
(1) the name and, if known, address of each person |
|
indebted to the estate; and |
|
(2) regarding each claim: |
|
(A) the nature of the debt, whether by note, |
|
bill, bond, or other written obligation, or by account or verbal |
|
contract; |
|
(B) the date the debt was incurred; |
|
(C) the date the debt was or is due; |
|
(D) the amount of the claim, the rate of interest |
|
on the claim, and the period for which the claim bears interest; |
|
(E) whether the claim is separate property or |
|
community property; and |
|
(F) if any portion of the claim is held in common |
|
with others, the interest of the estate in the claim and the names |
|
and relationships, if any, of the other part owners. (Tex. Prob. |
|
Code, Sec. 251.) |
|
Sec. 309.053. AFFIDAVIT OF PERSONAL REPRESENTATIVE. The |
|
personal representative shall attach to the inventory, |
|
appraisement, and list of claims the representative's affidavit, |
|
subscribed and sworn to before an officer in the county authorized |
|
by law to administer oaths, that the inventory, appraisement, and |
|
list of claims are a true and complete statement of the property and |
|
claims of the estate of which the representative has knowledge. |
|
(Tex. Prob. Code, Sec. 252.) |
|
Sec. 309.054. APPROVAL OR DISAPPROVAL BY THE COURT. (a) On |
|
the filing of the inventory, appraisement, and list of claims with |
|
the court clerk, the judge shall examine and approve or disapprove |
|
the inventory, appraisement, and list of claims. |
|
(b) If the judge approves the inventory, appraisement, and |
|
list of claims, the judge shall enter an order to that effect. |
|
(c) If the judge does not approve the inventory, |
|
appraisement, or list of claims, the judge: |
|
(1) shall enter an order to that effect requiring the |
|
filing of another inventory, appraisement, or list of claims, |
|
whichever is not approved, within a period specified in the order |
|
not to exceed 20 days after the date the order is entered; and |
|
(2) may, if considered necessary, appoint new |
|
appraisers. (Tex. Prob. Code, Sec. 255.) |
|
Sec. 309.055. FAILURE OF JOINT PERSONAL REPRESENTATIVES TO |
|
FILE INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS. (a) If more than |
|
one personal representative qualifies to serve, any one or more of |
|
the representatives, on the neglect of the other representatives, |
|
may make and file an inventory, appraisement, and list of claims. |
|
(b) A personal representative who neglects to make or file |
|
an inventory, appraisement, and list of claims may not interfere |
|
with and does not have any power over the estate after another |
|
representative makes and files an inventory, appraisement, and list |
|
of claims. |
|
(c) The personal representative who files the inventory, |
|
appraisement, and list of claims is entitled to the whole |
|
administration unless, before the 61st day after the date the |
|
representative files the inventory, appraisement, and list of |
|
claims, one or more delinquent representatives file with the court |
|
a written, sworn, and reasonable excuse that the court considers |
|
satisfactory. The court shall enter an order removing one or more |
|
delinquent representatives and revoking those representatives' |
|
letters if: |
|
(1) an excuse is not filed; or |
|
(2) the court does not consider the filed excuse |
|
sufficient. (Tex. Prob. Code, Sec. 260.) |
|
[Sections 309.056-309.100 reserved for expansion] |
|
SUBCHAPTER C. CHANGES TO INVENTORY, APPRAISEMENT, AND LIST OF |
|
CLAIMS |
|
Sec. 309.101. DISCOVERY OF ADDITIONAL PROPERTY OR CLAIMS. |
|
If after the filing of the inventory, appraisement, and list of |
|
claims the personal representative acquires possession or |
|
knowledge of property or claims of the estate not included in the |
|
inventory, appraisement, and list of claims the representative |
|
shall promptly file with the court clerk a verified, full, and |
|
detailed supplemental inventory, appraisement, and list of claims. |
|
(Tex. Prob. Code, Sec. 256.) |
|
Sec. 309.102. ADDITIONAL INVENTORY AND APPRAISEMENT OR LIST |
|
OF CLAIMS. (a) On the written complaint of any interested person |
|
that property or claims of the estate have not been included in the |
|
filed inventory, appraisement, and list of claims, the personal |
|
representative shall be cited to appear before the court in which |
|
the cause is pending and show cause why the representative should |
|
not be required to make and file an additional inventory and |
|
appraisement or list of claims, or both, as applicable. |
|
(b) After hearing the complaint, if the court is satisfied |
|
of the truth of the complaint, the court shall enter an order |
|
requiring the personal representative to make and file an |
|
additional inventory and appraisement or list of claims, or both, |
|
as applicable. The additional inventory and appraisement or list |
|
of claims: |
|
(1) must be made and filed in the same manner as the |
|
original inventory and appraisement or list of claims within the |
|
period prescribed by the court, not to exceed 20 days after the date |
|
the order is entered; and |
|
(2) may include only property or claims not previously |
|
included in the inventory and appraisement or list of claims. (Tex. |
|
Prob. Code, Sec. 257.) |
|
Sec. 309.103. CORRECTION OF INVENTORY, APPRAISEMENT, OR |
|
LIST OF CLAIMS FOR ERRONEOUS OR UNJUST ITEM. (a) Any interested |
|
person who considers an inventory, appraisement, or list of claims |
|
filed for the estate to be erroneous or unjust in any particular |
|
may: |
|
(1) file a written complaint setting forth the alleged |
|
erroneous or unjust item; and |
|
(2) have the personal representative cited to appear |
|
before the court and show cause why the item should not be |
|
corrected. |
|
(b) On the hearing of the complaint, if the court is |
|
satisfied from the evidence that the inventory, appraisement, or |
|
list of claims is erroneous or unjust as alleged in the complaint, |
|
the court shall enter an order: |
|
(1) specifying the erroneous or unjust item and the |
|
corrections to be made; and |
|
(2) appointing appraisers to make a new appraisement |
|
correcting the erroneous or unjust item and requiring the filing of |
|
the new appraisement before the 21st day after the date of the |
|
order. |
|
(c) The court on the court's own motion or that of the |
|
personal representative may also have a new appraisement made for |
|
the purposes described by this section. (Tex. Prob. Code, Sec. |
|
258.) |
|
Sec. 309.104. REAPPRAISEMENT. (a) A reappraisement made, |
|
filed, and approved by the court replaces the original |
|
appraisement. Not more than one reappraisement may be made. |
|
(b) Notwithstanding Subsection (a), an interested person |
|
may object to a reappraisement regardless of whether the court has |
|
approved the reappraisement. If the court finds that the |
|
reappraisement is erroneous or unjust, the court shall appraise the |
|
property on the basis of the evidence before the court. (Tex. Prob. |
|
Code, Sec. 259.) |
|
[Sections 309.105-309.150 reserved for expansion] |
|
SUBCHAPTER D. USE OF INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS AS |
|
EVIDENCE |
|
Sec. 309.151. USE OF INVENTORY, APPRAISEMENT, AND LIST OF |
|
CLAIMS AS EVIDENCE. Each inventory, appraisement, and list of |
|
claims that has been made, filed, and approved in accordance with |
|
law, the record of the inventory, appraisement, and list of claims, |
|
or a copy of an original or the record that has been certified under |
|
the seal of the county court affixed by the clerk: |
|
(1) may be given in evidence in any court of this state |
|
in any suit by or against the personal representative; and |
|
(2) is not conclusive for or against the |
|
representative if it is shown that: |
|
(A) any property or claim of the estate is not |
|
shown in the originals, the record, or the copies; or |
|
(B) the value of the property or claim of the |
|
estate exceeded the value shown in the appraisement or list of |
|
claims. (Tex. Prob. Code, Sec. 261.) |
|
CHAPTER 310. ALLOCATION OF ESTATE INCOME AND EXPENSES |
|
|
Sec. 310.001. DEFINITION |
|
Sec. 310.002. APPLICABILITY OF OTHER LAW |
|
Sec. 310.003. ALLOCATION OF EXPENSES |
|
Sec. 310.004. INCOME DETERMINATION AND DISTRIBUTION |
|
Sec. 310.005. TREATMENT OF INCOME RECEIVED BY TRUSTEE |
|
Sec. |
310.006. FREQUENCY AND METHOD OF DETERMINING |
|
INTERESTS IN CERTAIN ESTATE ASSETS |
|
CHAPTER 310. ALLOCATION OF ESTATE INCOME AND EXPENSES |
|
Sec. 310.001. DEFINITION. In this chapter, "undistributed |
|
assets" includes funds used to pay debts, administration expenses, |
|
and federal and state estate, inheritance, succession, and |
|
generation-skipping transfer taxes until the date the debts, |
|
expenses, and taxes are paid. (Tex. Prob. Code, Sec. 378B(h) |
|
(part).) |
|
Sec. 310.002. APPLICABILITY OF OTHER LAW. Chapter 116, |
|
Property Code, controls to the extent of any conflict between this |
|
chapter and Chapter 116, Property Code. (Tex. Prob. Code, Sec. |
|
378B(i).) |
|
Sec. 310.003. ALLOCATION OF EXPENSES. (a) Except as |
|
provided by Section 310.004(a) and unless the will provides |
|
otherwise, all expenses incurred in connection with the settlement |
|
of a decedent's estate shall be charged against the principal of the |
|
estate, including: |
|
(1) debts; |
|
(2) funeral expenses; |
|
(3) estate taxes and penalties relating to estate |
|
taxes; and |
|
(4) family allowances. |
|
(b) Fees and expenses of an attorney, accountant, or other |
|
professional advisor, commissions and expenses of a personal |
|
representative, court costs, and all other similar fees or expenses |
|
relating to the administration of the estate and interest relating |
|
to estate taxes shall be allocated between the income and principal |
|
of the estate as the executor determines in the executor's |
|
discretion to be just and equitable. (Tex. Prob. Code, Sec. |
|
378B(a).) |
|
Sec. 310.004. INCOME DETERMINATION AND DISTRIBUTION. (a) |
|
Unless a will provides otherwise, income from the assets of a |
|
decedent's estate that accrues after the death of the testator and |
|
before distribution, including income from property used to |
|
discharge liabilities, shall be: |
|
(1) determined according to the rules applicable to a |
|
trustee under the Texas Trust Code (Subtitle B, Title 9, Property |
|
Code); and |
|
(2) distributed as provided by Subsections (b) and (c) |
|
and by Chapter 116, Property Code. |
|
(b) Income from property devised to a specific devisee shall |
|
be distributed to the devisee after reduction for: |
|
(1) property taxes; |
|
(2) other taxes, including taxes imposed on income |
|
that accrues during the period of administration and that is |
|
payable to the devisee; |
|
(3) ordinary repairs; |
|
(4) insurance premiums; |
|
(5) interest accrued after the testator's death; and |
|
(6) other expenses of management and operation of the |
|
property. |
|
(c) The balance of the net income shall be distributed to |
|
all other devisees after reduction for the balance of property |
|
taxes, ordinary repairs, insurance premiums, interest accrued, |
|
other expenses of management and operation of all property from |
|
which the estate is entitled to income, and taxes imposed on income |
|
that accrues during the period of administration and that is |
|
payable or allocable to the devisees, in proportion to the |
|
devisees' respective interests in the undistributed assets of the |
|
estate. (Tex. Prob. Code, Secs. 378B(b), (c), (d).) |
|
Sec. 310.005. TREATMENT OF INCOME RECEIVED BY TRUSTEE. |
|
Income received by a trustee under this chapter shall be treated as |
|
income of the trust as provided by Section 116.101, Property Code. |
|
(Tex. Prob. Code, Sec. 378B(g).) |
|
Sec. 310.006. FREQUENCY AND METHOD OF DETERMINING INTERESTS |
|
IN CERTAIN ESTATE ASSETS. Except as required by Sections 2055 and |
|
2056, Internal Revenue Code of 1986 (26 U.S.C. Sections 2055 and |
|
2056), the frequency and method of determining the beneficiaries' |
|
respective interests in the undistributed assets of an estate are |
|
in the sole and absolute discretion of the executor of the estate. |
|
The executor may consider all relevant factors, including |
|
administrative convenience and expense and the interests of the |
|
various beneficiaries of the estate, to reach a fair and equitable |
|
result among beneficiaries. (Tex. Prob. Code, Sec. 378B(h) |
|
(part).) |
|
[Chapters 311-350 reserved for expansion] |
|
SUBTITLE H. CONTINUATION OF ADMINISTRATION |
|
CHAPTER 351. |
POWERS AND DUTIES OF PERSONAL REPRESENTATIVES IN GENERAL |
|
GENERAL |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 351.001. APPLICABILITY OF COMMON LAW |
|
Sec. 351.002. APPEAL BOND |
|
Sec. |
351.003. CERTAIN COSTS ADJUDGED AGAINST PERSONAL |
|
REPRESENTATIVE |
|
[Sections 351.004-351.050 reserved for expansion] |
|
SUBCHAPTER B. |
GENERAL AUTHORITY OF PERSONAL REPRESENTATIVES |
|
Sec. 351.051. EXERCISE OF AUTHORITY UNDER COURT ORDER |
|
Sec. |
351.052. EXERCISE OF AUTHORITY WITHOUT COURT |
|
ORDER |
|
Sec. |
351.053. AUTHORITY TO SERVE PENDING APPEAL OF |
|
APPOINTMENT |
|
Sec. 351.054. AUTHORITY TO COMMENCE SUITS |
|
[Sections 351.055-351.100 reserved for expansion] |
|
SUBCHAPTER C. POSSESSION AND CARE OF ESTATE PROPERTY |
|
|
Sec. 351.101. DUTY OF CARE |
|
Sec. |
351.102. POSSESSION OF PERSONAL PROPERTY AND |
|
RECORDS |
|
Sec. |
351.103. POSSESSION OF PROPERTY HELD IN COMMON |
|
OWNERSHIP |
|
Sec. 351.104. ADMINISTRATION OF PARTNERSHIP INTEREST |
|
Sec. |
351.105. HOLDING OF STOCKS, BONDS, AND OTHER |
|
PERSONAL PROPERTY IN NOMINEE'S NAME |
|
[Sections 351.106-351.150 reserved for expansion] |
|
SUBCHAPTER D. COLLECTION OF CLAIMS; RECOVERY OF PROPERTY |
|
|
Sec. 351.151. ORDINARY DILIGENCE REQUIRED |
|
Sec. |
351.152. CONTINGENT INTEREST FOR CERTAIN |
|
ATTORNEY'S FEES; COURT APPROVAL |
|
Sec. 351.153. RECOVERY OF CERTAIN EXPENSES |
|
[Sections 351.154-351.200 reserved for expansion] |
|
SUBCHAPTER E. OPERATION OF BUSINESS |
|
|
Sec. 351.201. DEFINITION |
|
Sec. |
351.202. ORDER REQUIRING PERSONAL REPRESENTATIVE |
|
TO OPERATE BUSINESS |
|
Sec. |
351.203. POWERS OF PERSONAL REPRESENTATIVE |
|
REGARDING BUSINESS |
|
Sec. |
351.204. FIDUCIARY DUTIES OF PERSONAL |
|
REPRESENTATIVE REGARDING BUSINESS |
|
Sec. 351.205. REAL PROPERTY OF BUSINESS; NOTICE |
|
[Sections 351.206-351.250 reserved for expansion] |
|
SUBCHAPTER F. AUTHORITY TO ENGAGE IN CERTAIN BORROWING |
|
|
Sec. |
351.251. MORTGAGE OR PLEDGE OF ESTATE PROPERTY |
|
AUTHORIZED IN CERTAIN CIRCUMSTANCES |
|
Sec. 351.252. APPLICATION; ORDER |
|
Sec. 351.253. TERM OF LOAN OR LIEN EXTENSION |
|
[Sections 351.254-351.300 reserved for expansion] |
|
SUBCHAPTER G. PAYMENT OF INCOME OF CERTAIN ESTATES DURING |
ADMINISTRATION |
|
ADMINISTRATION |
|
|
Sec. 351.301. APPLICABILITY OF SUBCHAPTER |
|
Sec. |
351.302. APPLICATION AND ORDER FOR PAYMENT OF |
|
CERTAIN ESTATE INCOME |
|
Sec. |
351.303. TREATMENT OF CERTAIN AMOUNTS RECEIVED |
|
FROM MINERAL LEASE |
|
[Sections 351.304-351.350 reserved for expansion] |
|
SUBCHAPTER H. CERTAIN ADMINISTERED ESTATES |
|
|
Sec. 351.351. APPLICABILITY |
|
Sec. 351.352. ENSURING COMPLIANCE WITH LAW |
|
Sec. |
351.353. ANNUAL EXAMINATION OF CERTAIN ESTATES; |
|
BOND OF PERSONAL REPRESENTATIVE |
|
Sec. 351.354. JUDGE'S LIABILITY |
|
Sec. 351.355. IDENTIFYING INFORMATION |
|
CHAPTER 351. POWERS AND DUTIES OF PERSONAL REPRESENTATIVES IN |
|
GENERAL |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 351.001. APPLICABILITY OF COMMON LAW. The rights, |
|
powers, and duties of executors and administrators are governed by |
|
common law principles to the extent that those principles do not |
|
conflict with the statutes of this state. (Tex. Prob. Code, Sec. |
|
32.) |
|
Sec. 351.002. APPEAL BOND. (a) Except as provided by |
|
Subsection (b), an appeal bond is not required if an appeal is taken |
|
by an executor or administrator. |
|
(b) An executor or administrator must give an appeal bond if |
|
the appeal personally concerns the executor or administrator. |
|
(Tex. Prob. Code, Sec. 29.) |
|
Sec. 351.003. CERTAIN COSTS ADJUDGED AGAINST PERSONAL |
|
REPRESENTATIVE. If a personal representative neglects to perform a |
|
required duty or is removed for cause, the representative and the |
|
sureties on the representative's bond are liable for: |
|
(1) the costs of removal and other additional costs |
|
incurred that are not expenditures authorized by this title; and |
|
(2) reasonable attorney's fees incurred in: |
|
(A) removing the representative; or |
|
(B) obtaining compliance regarding any statutory |
|
duty the representative has neglected. (Tex. Prob. Code, Sec. |
|
245.) |
|
[Sections 351.004-351.050 reserved for expansion] |
|
SUBCHAPTER B. GENERAL AUTHORITY OF PERSONAL REPRESENTATIVES |
|
Sec. 351.051. EXERCISE OF AUTHORITY UNDER COURT ORDER. (a) |
|
A personal representative of an estate may renew or extend any |
|
obligation owed by or to the estate on application and order |
|
authorizing the renewal or extension. If a personal representative |
|
considers it in the interest of the estate, the representative may, |
|
on written application to the court and if authorized by court |
|
order: |
|
(1) purchase or exchange property; |
|
(2) take claims or property for the use and benefit of |
|
the estate in payment of a debt due or owed to the estate; |
|
(3) compound bad or doubtful debts due or owed to the |
|
estate; |
|
(4) make a compromise or settlement in relation to |
|
property or a claim in dispute or litigation; |
|
(5) compromise or pay in full any secured claim that |
|
has been allowed and approved as required by law against the estate |
|
by conveying to the holder of the claim the real estate or personal |
|
property securing the claim: |
|
(A) in full payment, liquidation, and |
|
satisfaction of the claim; and |
|
(B) in consideration of cancellation of notes, |
|
deeds of trust, mortgages, chattel mortgages, or other evidences of |
|
liens securing the payment of the claim; or |
|
(6) abandon the administration of burdensome or |
|
worthless estate property. |
|
(b) Abandoned property may be foreclosed on by a mortgagee |
|
or other secured party or a trustee without further court order. |
|
(Tex. Prob. Code, Sec. 234(a).) |
|
Sec. 351.052. EXERCISE OF AUTHORITY WITHOUT COURT ORDER. |
|
(a) A personal representative of an estate may, without |
|
application to or order of the court: |
|
(1) release a lien on payment at maturity of the debt |
|
secured by the lien; |
|
(2) vote stocks by limited or general proxy; |
|
(3) pay calls and assessments; |
|
(4) insure the estate against liability in appropriate |
|
cases; |
|
(5) insure estate property against fire, theft, and |
|
other hazards; or |
|
(6) pay taxes, court costs, and bond premiums. |
|
(b) A personal representative who is under court control may |
|
apply and obtain a court order if the representative has doubts |
|
regarding the propriety of the exercise of any power listed in |
|
Subsection (a). (Tex. Prob. Code, Sec. 234(b).) |
|
Sec. 351.053. AUTHORITY TO SERVE PENDING APPEAL OF |
|
APPOINTMENT. Pending an appeal from an order or judgment |
|
appointing an administrator or temporary administrator, the |
|
appointee shall continue to: |
|
(1) act as administrator or temporary administrator; |
|
and |
|
(2) prosecute any suit then pending in favor of the |
|
estate. (Tex. Prob. Code, Sec. 28.) |
|
Sec. 351.054. AUTHORITY TO COMMENCE SUITS. (a) An executor |
|
or administrator appointed in this state may commence a suit for: |
|
(1) recovery of personal property, debts, or damages; |
|
or |
|
(2) title to or possession of land, any right attached |
|
to or arising from that land, or an injury or damage done to that |
|
land. |
|
(b) A judgment in a suit described by Subsection (a) is |
|
conclusive, but may be set aside by any interested person for fraud |
|
or collusion on the executor's or administrator's part. (Tex. Prob. |
|
Code, Sec. 233A.) |
|
[Sections 351.055-351.100 reserved for expansion] |
|
SUBCHAPTER C. POSSESSION AND CARE OF ESTATE PROPERTY |
|
Sec. 351.101. DUTY OF CARE. An executor or administrator of |
|
an estate shall take care of estate property as a prudent person |
|
would take of that person's own property, and if any buildings |
|
belong to the estate, the executor or administrator shall keep |
|
those buildings in good repair, except for extraordinary |
|
casualties, unless directed by a court order not to do so. (Tex. |
|
Prob. Code, Sec. 230.) |
|
Sec. 351.102. POSSESSION OF PERSONAL PROPERTY AND RECORDS. |
|
(a) Immediately after receiving letters testamentary or of |
|
administration, the personal representative of an estate shall |
|
collect and take possession of the estate's personal property, |
|
record books, title papers, and other business papers. |
|
(b) The personal representative shall deliver the property, |
|
books, and papers described by Subsection (a) that are in the |
|
representative's possession to the person or persons legally |
|
entitled to the property, books, and papers when: |
|
(1) the administration of the estate is closed; or |
|
(2) a successor personal representative receives |
|
letters testamentary or of administration. (Tex. Prob. Code, Sec. |
|
232.) |
|
Sec. 351.103. POSSESSION OF PROPERTY HELD IN COMMON |
|
OWNERSHIP. If an estate holds or owns any property in common or as |
|
part owner with another, the personal representative of the estate |
|
is entitled to possession of the property in common with the other |
|
part owner or owners in the same manner as other owners in common or |
|
joint owners are entitled to possession of the property. (Tex. |
|
Prob. Code, Sec. 235.) |
|
Sec. 351.104. ADMINISTRATION OF PARTNERSHIP INTEREST. (a) |
|
If a decedent was a partner in a general partnership and the |
|
partnership agreement or articles of partnership provide that, on |
|
the death of a partner, the partner's personal representative is |
|
entitled to that partner's place in the partnership, a personal |
|
representative accordingly contracting to enter the partnership |
|
under the partnership agreement or articles of partnership is, to |
|
the extent allowed by law, liable to a third person only to the |
|
extent of: |
|
(1) the deceased partner's capital in the partnership; |
|
and |
|
(2) the estate's assets held by the representative. |
|
(b) This section does not exonerate a personal |
|
representative from liability for the representative's negligence. |
|
(Tex. Prob. Code, Sec. 238A.) |
|
Sec. 351.105. HOLDING OF STOCKS, BONDS, AND OTHER PERSONAL |
|
PROPERTY IN NOMINEE'S NAME. (a) Unless otherwise provided by the |
|
will, a personal representative of an estate may cause stocks, |
|
bonds, and other personal property of the estate to be registered |
|
and held in the name of a nominee without mentioning the fiduciary |
|
relationship in any instrument or record constituting or evidencing |
|
title to that property. The representative is liable for the acts |
|
of the nominee with respect to property registered in this manner. |
|
The representative's records must at all times show the ownership |
|
of the property. |
|
(b) Any property registered in the manner described by |
|
Subsection (a) shall be kept: |
|
(1) in the possession and control of the personal |
|
representative at all times; and |
|
(2) separate from the representative's individual |
|
property. (Tex. Prob. Code, Sec. 398A.) |
|
[Sections 351.106-351.150 reserved for expansion] |
|
SUBCHAPTER D. COLLECTION OF CLAIMS; RECOVERY OF PROPERTY |
|
Sec. 351.151. ORDINARY DILIGENCE REQUIRED. (a) If there is |
|
a reasonable prospect of collecting the claims or recovering the |
|
property of an estate, the personal representative of the estate |
|
shall use ordinary diligence to: |
|
(1) collect all claims and debts due the estate; and |
|
(2) recover possession of all property to which the |
|
estate has claim or title. |
|
(b) If a personal representative wilfully neglects to use |
|
the ordinary diligence required under Subsection (a), the |
|
representative and the sureties on the representative's bond are |
|
liable, on the suit of any person interested in the estate, for the |
|
use of the estate, for the amount of those claims or the value of |
|
that property lost by the neglect. (Tex. Prob. Code, Sec. 233(a).) |
|
Sec. 351.152. CONTINGENT INTEREST FOR CERTAIN ATTORNEY'S |
|
FEES; COURT APPROVAL. (a) Except as provided by Subsection (b) and |
|
subject only to the approval of the court in which the estate is |
|
being administered, a personal representative may convey or enter |
|
into a contract to convey for attorney services a contingent |
|
interest in any property sought to be recovered, not to exceed a |
|
one-third interest in the property. |
|
(b) A personal representative, including an independent |
|
executor or independent administrator, may convey or enter into a |
|
contract to convey for attorney services a contingent interest in |
|
any property sought to be recovered under this subchapter in an |
|
amount that exceeds a one-third interest in the property only on the |
|
approval of the court in which the estate is being administered. |
|
The court must approve a contract entered into or conveyance made |
|
under this section before an attorney performs any legal services. |
|
A contract entered into or a conveyance made in violation of this |
|
section is void unless the court ratifies or reforms the contract or |
|
documents relating to the conveyance to the extent necessary to |
|
make the contract or conveyance meet the requirements of this |
|
section. |
|
(c) In approving a contract or conveyance under this |
|
section, the court shall consider: |
|
(1) the time and labor required, the novelty and |
|
difficulty of the questions involved, and the skill required to |
|
perform the legal services properly; |
|
(2) the fee customarily charged in the locality for |
|
similar legal services; |
|
(3) the value of the property recovered or sought to be |
|
recovered by the personal representative under this subchapter; |
|
(4) the benefits to the estate that the attorney will |
|
be responsible for securing; and |
|
(5) the experience and ability of the attorney who |
|
will perform the services. (Tex. Prob. Code, Secs. 233(b), (c), |
|
(d).) |
|
Sec. 351.153. RECOVERY OF CERTAIN EXPENSES. On proof |
|
satisfactory to the court, a personal representative of an estate |
|
is entitled to all necessary and reasonable expenses incurred by |
|
the representative in: |
|
(1) collecting or attempting to collect a claim or |
|
debt owed to the estate; or |
|
(2) recovering or attempting to recover property to |
|
which the estate has a title or claim. (Tex. Prob. Code, Sec. |
|
233(e).) |
|
[Sections 351.154-351.200 reserved for expansion] |
|
SUBCHAPTER E. OPERATION OF BUSINESS |
|
Sec. 351.201. DEFINITION. In this subchapter, "business" |
|
includes a farm, ranch, or factory. (Tex. Prob. Code, Sec. 238(a).) |
|
Sec. 351.202. ORDER REQUIRING PERSONAL REPRESENTATIVE TO |
|
OPERATE BUSINESS. (a) A court, after notice to all interested |
|
persons and a hearing, may order the personal representative of an |
|
estate to operate a business that is part of the estate and may |
|
grant the representative the powers to operate the business that |
|
the court determines are appropriate, after considering the factors |
|
listed in Subsection (b), if: |
|
(1) the disposition of the business has not been |
|
specifically directed by the decedent's will; |
|
(2) it is not necessary to sell the business at once |
|
for the payment of debts or for any other lawful purpose; and |
|
(3) the court determines that the operation of the |
|
business by the representative is in the best interest of the |
|
estate. |
|
(b) In determining which powers to grant a personal |
|
representative in an order entered under Subsection (a), the court |
|
shall consider: |
|
(1) the condition of the estate and the business; |
|
(2) the necessity that may exist for the future sale of |
|
the business or of business property to provide for payment of debts |
|
or claims against the estate or other lawful expenditures with |
|
respect to the estate; |
|
(3) the effect of the order on the speedy settlement of |
|
the estate; and |
|
(4) the best interests of the estate. (Tex. Prob. |
|
Code, Secs. 238(b), (f).) |
|
Sec. 351.203. POWERS OF PERSONAL REPRESENTATIVE REGARDING |
|
BUSINESS. (a) A personal representative granted authority to |
|
operate a business in an order entered under Section 351.202(a) has |
|
the powers granted under Section 351.052, regardless of whether the |
|
order specifies that the representative has those powers, unless |
|
the order specifically provides that the representative does not |
|
have one or more of the powers listed in Section 351.052. |
|
(b) In addition to the powers granted to the personal |
|
representative under Section 351.052, subject to any specific |
|
limitation on those powers in accordance with Subsection (a), an |
|
order entered under Section 351.202(a) may grant the representative |
|
one or more of the following powers: |
|
(1) the power to hire, pay, and terminate the |
|
employment of employees of the business; |
|
(2) the power to incur debt on behalf of the business, |
|
including debt secured by liens against assets of the business or |
|
estate, if permitted or directed by the order; |
|
(3) the power to purchase and sell property in the |
|
ordinary course of the operation of the business, including the |
|
power to purchase and sell real property if the court finds that the |
|
principal purpose of the business is the purchasing and selling of |
|
real property and the order states that finding; |
|
(4) the power to enter into a lease or contract, the |
|
term of which may extend beyond the settlement of the estate, but |
|
only to the extent that granting the power appears to be consistent |
|
with the speedy settlement of the estate; and |
|
(5) any other power the court finds necessary with |
|
respect to the operation of the business. |
|
(c) If the order entered under Section 351.202(a) gives the |
|
personal representative the power to purchase, sell, lease, or |
|
otherwise encumber property: |
|
(1) the purchase, sale, lease, or encumbrance is |
|
governed by the terms of the order; and |
|
(2) the representative is not required to comply with |
|
any other provision of this title regarding the purchase, sale, |
|
lease, or encumbrance, including any provision requiring citation |
|
or notice. (Tex. Prob. Code, Secs. 238(c), (d), (e).) |
|
Sec. 351.204. FIDUCIARY DUTIES OF PERSONAL REPRESENTATIVE |
|
REGARDING BUSINESS. (a) A personal representative who operates a |
|
business under an order entered under Section 351.202(a) has the |
|
same fiduciary duties as a representative who does not operate a |
|
business that is part of an estate. |
|
(b) In operating a business under an order entered under |
|
Section 351.202(a), a personal representative shall consider: |
|
(1) the condition of the estate and the business; |
|
(2) the necessity that may exist for the future sale of |
|
the business or of business property to provide for payment of debts |
|
or claims against the estate or other lawful expenditures with |
|
respect to the estate; |
|
(3) the effect of the order on the speedy settlement of |
|
the estate; and |
|
(4) the best interests of the estate. |
|
(c) A personal representative who operates a business under |
|
an order entered under Section 351.202(a) shall report to the court |
|
with respect to the operation and condition of the business as part |
|
of the accounts required by Chapters 359 and 362, unless the court |
|
orders the reports regarding the business to be made more |
|
frequently or in a different manner or form. (Tex. Prob. Code, Sec. |
|
238(g).) |
|
Sec. 351.205. REAL PROPERTY OF BUSINESS; NOTICE. (a) A |
|
personal representative shall file a notice in the real property |
|
records of the county in which the real property is located before |
|
purchasing, selling, leasing, or otherwise encumbering any real |
|
property of the business in accordance with an order entered under |
|
Section 351.202(a). |
|
(b) The notice filed under Subsection (a) must: |
|
(1) state: |
|
(A) the decedent's name; |
|
(B) the county of the court in which the |
|
decedent's estate is pending; |
|
(C) the cause number assigned to the pending |
|
estate; and |
|
(D) that one or more orders have been entered |
|
under Section 351.202(a); and |
|
(2) include a description of the property that is the |
|
subject of the purchase, sale, lease, or other encumbrance. |
|
(c) For purposes of determining a personal representative's |
|
authority with respect to a purchase, sale, lease, or other |
|
encumbrance of real property of a business that is part of an |
|
estate, a third party who deals in good faith with the |
|
representative with respect to the transaction may rely on the |
|
notice filed under Subsection (a) and an order entered under |
|
Section 351.202(a) and filed as part of the estate records |
|
maintained by the clerk of the court in which the estate is pending. |
|
(Tex. Prob. Code, Secs. 238(h), (i).) |
|
[Sections 351.206-351.250 reserved for expansion] |
|
SUBCHAPTER F. AUTHORITY TO ENGAGE IN CERTAIN BORROWING |
|
Sec. 351.251. MORTGAGE OR PLEDGE OF ESTATE PROPERTY |
|
AUTHORIZED IN CERTAIN CIRCUMSTANCES. Under order of the court, a |
|
personal representative of an estate may mortgage or pledge by deed |
|
of trust or otherwise as security for an indebtedness any property |
|
of the estate as necessary for: |
|
(1) the payment of any ad valorem, income, gift, |
|
estate, inheritance, or transfer taxes on the transfer of an estate |
|
or due from a decedent or the estate, regardless of whether those |
|
taxes are assessed by a state, a political subdivision of a state, |
|
the federal government, or a foreign country; |
|
(2) the payment of expenses of administration, |
|
including amounts necessary for operation of a business, farm, or |
|
ranch owned by the estate; |
|
(3) the payment of claims allowed and approved, or |
|
established by suit, against the estate; or |
|
(4) the renewal and extension of an existing lien. |
|
(Tex. Prob. Code, Sec. 329(a).) |
|
Sec. 351.252. APPLICATION; ORDER. (a) If necessary to |
|
borrow money for a purpose described by Section 351.251 or to create |
|
or extend a lien on estate property as security, the personal |
|
representative of the estate shall file a sworn application for |
|
that authority with the court. The application must state fully and |
|
in detail the circumstances that the representative believes make |
|
the granting of the authority necessary. |
|
(b) On the filing of an application under Subsection (a), |
|
the clerk shall issue and have posted a citation to all interested |
|
persons, stating the nature of the application and requiring any |
|
interested person who chooses to do so to appear and show cause, if |
|
any, why the application should not be granted. |
|
(c) If satisfied by the evidence adduced at the hearing on |
|
an application filed under Subsection (a) that it is in the interest |
|
of the estate to borrow money or to extend and renew an existing |
|
lien, the court shall issue an order to that effect that sets out |
|
the terms of the authority granted under the order. |
|
(d) If a new lien is created on estate property, the court |
|
may require, for the protection of the estate and the creditors, |
|
that the personal representative's general bond be increased or an |
|
additional bond given, as for the sale of real property belonging to |
|
the estate. (Tex. Prob. Code, Secs. 329(b), (c) (part).) |
|
Sec. 351.253. TERM OF LOAN OR LIEN EXTENSION. Except as |
|
otherwise provided by this section, the term of a loan or lien |
|
renewal authorized under Section 351.252 may not exceed a period of |
|
three years from the date original letters testamentary or of |
|
administration are granted to the personal representative of the |
|
affected estate. The court may authorize an extension of a lien |
|
renewed under Section 351.252 for not more than one additional year |
|
without further citation or notice. (Tex. Prob. Code, Sec. 329(c) |
|
(part).) |
|
[Sections 351.254-351.300 reserved for expansion] |
|
SUBCHAPTER G. PAYMENT OF INCOME OF CERTAIN ESTATES DURING |
|
ADMINISTRATION |
|
Sec. 351.301. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
applies only to the estate of a decedent that is being administered |
|
under the direction, control, and orders of a court in the exercise |
|
of the court's probate jurisdiction. (Tex. Prob. Code, Sec. 239 |
|
(part).) |
|
Sec. 351.302. APPLICATION AND ORDER FOR PAYMENT OF CERTAIN |
|
ESTATE INCOME. (a) On the application of the executor or |
|
administrator of an estate or of any interested party, and after |
|
notice of the application has been given by posting, the court may |
|
order and direct the executor or administrator to pay, or credit to |
|
the account of, those persons who the court finds will own the |
|
estate assets when administration on the estate is completed, and |
|
in the same proportions, that part of the annual net income received |
|
by or accruing to the estate that the court finds can conveniently |
|
be paid to those owners without prejudice to the rights of |
|
creditors, legatees, or other interested parties, if: |
|
(1) it appears from evidence introduced at a hearing |
|
on the application, and the court finds, that the reasonable market |
|
value of the estate assets on hand at that time, excluding the |
|
annual income from the estate assets, is at least twice the |
|
aggregate amount of all unpaid debts, administration expenses, and |
|
legacies; and |
|
(2) no estate creditor or legatee has appeared and |
|
objected. |
|
(b) Except as otherwise provided by this title, nothing in |
|
this subchapter authorizes the court to order paid over to the |
|
owners of the estate any part of the principal of the estate. (Tex. |
|
Prob. Code, Sec. 239 (part).) |
|
Sec. 351.303. TREATMENT OF CERTAIN AMOUNTS RECEIVED FROM |
|
MINERAL LEASE. For the purposes of this subchapter, bonuses, |
|
rentals, and royalties received for or from an oil, gas, or other |
|
mineral lease shall be treated as income rather than as principal. |
|
(Tex. Prob. Code, Sec. 239 (part).) |
|
[Sections 351.304-351.350 reserved for expansion] |
|
SUBCHAPTER H. CERTAIN ADMINISTERED ESTATES |
|
Sec. 351.351. APPLICABILITY. This subchapter does not |
|
apply to: |
|
(1) the appointment of an independent executor or |
|
administrator under Section 145(c), (d), or (e); or |
|
(2) the appointment of a successor independent |
|
executor under Section 154A. (Tex. Prob. Code, Secs. 145(q) |
|
(part), 154A(i) (part).) |
|
Sec. 351.352. ENSURING COMPLIANCE WITH LAW. A county or |
|
probate court shall use reasonable diligence to see that personal |
|
representatives of estates administered under court orders and |
|
other officers of the court perform the duty enjoined on them by law |
|
applicable to those estates. (Tex. Prob. Code, Sec. 36(a) (part).) |
|
Sec. 351.353. ANNUAL EXAMINATION OF CERTAIN ESTATES; BOND |
|
OF PERSONAL REPRESENTATIVE. For each estate administered under |
|
orders of a county or probate court, the judge shall, if the judge |
|
considers it necessary, annually examine the condition of the |
|
estate and the solvency of the bond of the estate's personal |
|
representative. If the judge finds the representative's bond is |
|
not sufficient to protect the estate, the judge shall require the |
|
representative to execute a new bond in accordance with law. In |
|
each case, the judge, as provided by law, shall notify the |
|
representative and the sureties on the representative's bond. |
|
(Tex. Prob. Code, Sec. 36(a) (part).) |
|
Sec. 351.354. JUDGE'S LIABILITY. A judge is liable on the |
|
judge's bond to those damaged if damage or loss results to an estate |
|
administered under orders of a county or probate court from the |
|
gross neglect of the judge to use reasonable diligence in the |
|
performance of the judge's duty under this subchapter. (Tex. Prob. |
|
Code, Sec. 36(a) (part).) |
|
Sec. 351.355. IDENTIFYING INFORMATION. (a) The court may |
|
request an applicant or court-appointed fiduciary to produce other |
|
information identifying an applicant, decedent, or personal |
|
representative, including a social security number, in addition to |
|
identifying information the applicant or fiduciary is required to |
|
produce under this title. |
|
(b) The court shall maintain any information required under |
|
this section, and the information may not be filed with the clerk. |
|
(Tex. Prob. Code, Sec. 36(b).) |
|
CHAPTER 352. COMPENSATION AND EXPENSES OF PERSONAL REPRESENTATIVES |
AND OTHERS |
|
AND OTHERS |
|
|
SUBCHAPTER A. |
COMPENSATION OF PERSONAL REPRESENTATIVES |
|
Sec. 352.001. DEFINITION |
|
Sec. 352.002. STANDARD COMPENSATION |
|
Sec. 352.003. ALTERNATE COMPENSATION |
|
Sec. 352.004. DENIAL OF COMPENSATION |
|
[Sections 352.005-352.050 reserved for expansion] |
|
SUBCHAPTER B. |
EXPENSES OF PERSONAL REPRESENTATIVES AND OTHERS |
|
Sec. 352.051. EXPENSES; ATTORNEY'S FEES |
|
Sec. 352.052. ALLOWANCE FOR DEFENSE OF WILL |
|
Sec. 352.053. EXPENSE CHARGES |
|
CHAPTER 352. COMPENSATION AND EXPENSES OF PERSONAL REPRESENTATIVES |
|
AND OTHERS |
|
SUBCHAPTER A. COMPENSATION OF PERSONAL REPRESENTATIVES |
|
Sec. 352.001. DEFINITION. In this subchapter, "financial |
|
institution" means an organization authorized to engage in business |
|
under state or federal laws relating to financial institutions, |
|
including: |
|
(1) a bank; |
|
(2) a trust company; |
|
(3) a savings bank; |
|
(4) a building and loan association; |
|
(5) a savings and loan company or association; and |
|
(6) a credit union. (Tex. Prob. Code, Sec. 241(b).) |
|
Sec. 352.002. STANDARD COMPENSATION. (a) An executor, |
|
administrator, or temporary administrator a court finds to have |
|
taken care of and managed an estate in compliance with the standards |
|
of this title is entitled to receive a five percent commission on |
|
all amounts that the executor or administrator actually receives or |
|
pays out in cash in the administration of the estate. |
|
(b) The commission described by Subsection (a): |
|
(1) may not exceed, in the aggregate, more than five |
|
percent of the gross fair market value of the estate subject to |
|
administration; and |
|
(2) is not allowed for: |
|
(A) receiving funds belonging to the testator or |
|
intestate that were, at the time of the testator's or intestate's |
|
death, either on hand or held for the testator or intestate in a |
|
financial institution or a brokerage firm, including cash or a cash |
|
equivalent held in a checking account, savings account, certificate |
|
of deposit, or money market account; |
|
(B) collecting the proceeds of a life insurance |
|
policy; or |
|
(C) paying out cash to an heir or legatee in that |
|
person's capacity as an heir or legatee. (Tex. Prob. Code, Sec. |
|
241(a) (part).) |
|
Sec. 352.003. ALTERNATE COMPENSATION. (a) The court may |
|
allow an executor, administrator, or temporary administrator |
|
reasonable compensation for the executor's or administrator's |
|
services, including unusual efforts to collect funds or life |
|
insurance, if: |
|
(1) the executor or administrator manages a farm, |
|
ranch, factory, or other business of the estate; or |
|
(2) the compensation calculated under Section 352.002 |
|
is unreasonably low. |
|
(b) The county court has jurisdiction to receive, consider, |
|
and act on applications from independent executors for purposes of |
|
this section. (Tex. Prob. Code, Sec. 241(a) (part).) |
|
Sec. 352.004. DENIAL OF COMPENSATION. The court may, on |
|
application of an interested person or on the court's own motion, |
|
wholly or partly deny a commission allowed by this subchapter if: |
|
(1) the court finds that the executor or administrator |
|
has not taken care of and managed estate property prudently; or |
|
(2) the executor or administrator has been removed |
|
under Section 149C or Subchapter B, Chapter 361. (Tex. Prob. Code, |
|
Sec. 241(a) (part).) |
|
[Sections 352.005-352.050 reserved for expansion] |
|
SUBCHAPTER B. EXPENSES OF PERSONAL REPRESENTATIVES AND OTHERS |
|
Sec. 352.051. EXPENSES; ATTORNEY'S FEES. On proof |
|
satisfactory to the court, a personal representative of an estate |
|
is entitled to: |
|
(1) necessary and reasonable expenses incurred by the |
|
representative in: |
|
(A) preserving, safekeeping, and managing the |
|
estate; |
|
(B) collecting or attempting to collect claims or |
|
debts; and |
|
(C) recovering or attempting to recover property |
|
to which the estate has a title or claim; and |
|
(2) reasonable attorney's fees necessarily incurred in |
|
connection with the proceedings and management of the estate. (Tex. |
|
Prob. Code, Sec. 242.) |
|
Sec. 352.052. ALLOWANCE FOR DEFENSE OF WILL. (a) A person |
|
designated as executor in a will or an alleged will, or as |
|
administrator with the will or alleged will annexed, who, for the |
|
purpose of having the will or alleged will admitted to probate, |
|
defends the will or alleged will or prosecutes any proceeding in |
|
good faith and with just cause, whether or not successful, shall be |
|
allowed out of the estate the executor's or administrator's |
|
necessary expenses and disbursements in those proceedings, |
|
including reasonable attorney's fees. |
|
(b) A person designated as a devisee in or beneficiary of a |
|
will or an alleged will, or as administrator with the will or |
|
alleged will annexed, who, for the purpose of having the will or |
|
alleged will admitted to probate, defends the will or alleged will |
|
or prosecutes any proceeding in good faith and with just cause, |
|
whether or not successful, may be allowed out of the estate the |
|
person's necessary expenses and disbursements in those |
|
proceedings, including reasonable attorney's fees. (Tex. Prob. |
|
Code, Sec. 243.) |
|
Sec. 352.053. EXPENSE CHARGES. (a) The court shall act on |
|
expense charges in the same manner as other claims against the |
|
estate. |
|
(b) All expense charges shall be: |
|
(1) made in writing, showing specifically each item of |
|
expense and the date of the expense; |
|
(2) verified by the personal representative's |
|
affidavit; |
|
(3) filed with the clerk; and |
|
(4) entered on the claim docket. (Tex. Prob. Code, |
|
Sec. 244.) |
|
CHAPTER 353. EXEMPT PROPERTY AND FAMILY ALLOWANCE |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 353.001. TREATMENT OF CERTAIN CHILDREN |
|
[Sections 353.002-353.050 reserved for expansion] |
|
SUBCHAPTER B. |
EXEMPT PROPERTY; ALLOWANCE IN LIEU OF EXEMPT PROPERTY |
|
PROPERTY |
|
|
Sec. 353.051. EXEMPT PROPERTY TO BE SET ASIDE |
|
Sec. 353.052. DELIVERY OF EXEMPT PROPERTY |
|
Sec. 353.053. ALLOWANCE IN LIEU OF EXEMPT PROPERTY |
|
Sec. |
353.054. PAYMENT OF ALLOWANCE IN LIEU OF EXEMPT |
|
PROPERTY |
|
Sec. |
353.055. METHOD OF PAYING ALLOWANCE IN LIEU OF |
|
EXEMPT PROPERTY |
|
Sec. |
353.056. SALE OF PROPERTY TO RAISE FUNDS FOR |
|
ALLOWANCE IN LIEU OF EXEMPT PROPERTY |
|
[Sections 353.057-353.100 reserved for expansion] |
|
SUBCHAPTER C. FAMILY ALLOWANCE |
|
|
Sec. 353.101. FAMILY ALLOWANCE |
|
Sec. |
353.102. AMOUNT AND METHOD OF PAYMENT OF FAMILY |
|
ALLOWANCE |
|
Sec. 353.103. ORDER FIXING FAMILY ALLOWANCE |
|
Sec. 353.104. PREFERENCE OF FAMILY ALLOWANCE |
|
Sec. 353.105. PAYMENT OF FAMILY ALLOWANCE |
|
Sec. |
353.106. SURVIVING SPOUSE OR MINOR CHILDREN MAY |
|
|
|
|
ALLOWANCE |
|
Sec. |
353.107. SALE OF ESTATE PROPERTY TO RAISE FUNDS |
|
FOR FAMILY ALLOWANCE |
|
[Sections 353.108-353.150 reserved for expansion] |
|
SUBCHAPTER D. LIENS ON AND DISPOSITION OF EXEMPT PROPERTY AND |
PROPERTY TAKEN AS ALLOWANCE |
|
PROPERTY TAKEN AS ALLOWANCE |
|
|
Sec. 353.151. LIENS |
|
Sec. |
353.152. DISTRIBUTION OF EXEMPT PROPERTY OF |
|
SOLVENT ESTATE |
|
Sec. 353.153. TITLE TO PROPERTY OF INSOLVENT ESTATE |
|
Sec. |
353.154. CERTAIN PROPERTY NOT CONSIDERED IN |
|
DETERMINING SOLVENCY |
|
Sec. 353.155. EXEMPT PROPERTY LIABLE FOR CERTAIN DEBTS |
|
CHAPTER 353. EXEMPT PROPERTY AND FAMILY ALLOWANCE |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 353.001. TREATMENT OF CERTAIN CHILDREN. For purposes |
|
of distributing exempt property and making a family allowance, a |
|
child is a child of his or her mother and a child of his or her |
|
father, as provided by Sections 201.051, 201.052, and 201.053. |
|
(Tex. Prob. Code, Sec. 42(c) (part).) |
|
[Sections 353.002-353.050 reserved for expansion] |
|
SUBCHAPTER B. EXEMPT PROPERTY; ALLOWANCE IN LIEU OF EXEMPT |
|
PROPERTY |
|
Sec. 353.051. EXEMPT PROPERTY TO BE SET ASIDE. (a) Unless |
|
an application and verified affidavit are filed as provided by |
|
Subsection (b), immediately after the inventory, appraisement, and |
|
list of claims of an estate are approved, the court by order shall |
|
set aside: |
|
(1) the homestead for the use and benefit of the |
|
decedent's surviving spouse and minor children; and |
|
(2) all other estate property that is exempt from |
|
execution or forced sale by the constitution and laws of this state |
|
for the use and benefit of the decedent's: |
|
(A) surviving spouse and minor children; and |
|
(B) unmarried children remaining with the |
|
decedent's family. |
|
(b) Before the inventory, appraisement, and list of claims |
|
of an estate are approved: |
|
(1) the decedent's surviving spouse or any other |
|
person authorized to act on behalf of the decedent's minor children |
|
may apply to the court to have exempt property, including the |
|
homestead, set aside by filing an application and a verified |
|
affidavit listing all property that the applicant claims is exempt; |
|
and |
|
(2) any of the decedent's unmarried children remaining |
|
with the decedent's family may apply to the court to have all exempt |
|
property, other than the homestead, set aside by filing an |
|
application and a verified affidavit listing all property, other |
|
than the homestead, that the applicant claims is exempt. |
|
(c) At a hearing on an application filed under Subsection |
|
(b), the applicant has the burden of proof by a preponderance of the |
|
evidence. The court shall set aside property of the decedent's |
|
estate that the court finds is exempt. (Tex. Prob. Code, Sec. 271.) |
|
Sec. 353.052. DELIVERY OF EXEMPT PROPERTY. (a) The |
|
executor or administrator of an estate shall deliver, without |
|
delay, exempt property that has been set aside for the decedent's |
|
surviving spouse and children in accordance with this section. |
|
(b) If there is a surviving spouse and there are no children |
|
of the decedent, or if all the children of the decedent are also the |
|
children of the surviving spouse, the executor or administrator |
|
shall deliver all exempt property to the surviving spouse. |
|
(c) If there is a surviving spouse and there are children of |
|
the decedent who are not also children of the surviving spouse, the |
|
executor or administrator shall deliver the share of those children |
|
in exempt property, other than the homestead, to: |
|
(1) the children, if the children are of legal age; or |
|
(2) the children's guardian, if the children are |
|
minors. |
|
(d) If there is no surviving spouse and there are children |
|
of the decedent, the executor or administrator shall deliver exempt |
|
property, other than the homestead, to: |
|
(1) the children, if the children are of legal age; or |
|
(2) the children's guardian, if the children are |
|
minors. |
|
(e) In all cases, the executor or administrator shall |
|
deliver the homestead to: |
|
(1) the decedent's surviving spouse, if there is a |
|
surviving spouse; or |
|
(2) the guardian of the decedent's minor children, if |
|
there is not a surviving spouse. (Tex. Prob. Code, Sec. 272.) |
|
Sec. 353.053. ALLOWANCE IN LIEU OF EXEMPT PROPERTY. (a) If |
|
all or any of the specific articles exempt from execution or forced |
|
sale by the constitution and laws of this state are not among the |
|
decedent's effects, the court shall make, in lieu of the articles |
|
not among the effects, a reasonable allowance to be paid to the |
|
decedent's surviving spouse and children as provided by Section |
|
353.054. |
|
(b) The allowance in lieu of a homestead may not exceed |
|
$15,000, and the allowance in lieu of other exempt property may not |
|
exceed $5,000, excluding the family allowance for the support of |
|
the surviving spouse and minor children provided by Subchapter C. |
|
(Tex. Prob. Code, Sec. 273.) |
|
Sec. 353.054. PAYMENT OF ALLOWANCE IN LIEU OF EXEMPT |
|
PROPERTY. (a) The executor or administrator of an estate shall pay |
|
an allowance in lieu of exempt property in accordance with this |
|
section. |
|
(b) If there is a surviving spouse and there are no children |
|
of the decedent, or if all the children of the decedent are also the |
|
children of the surviving spouse, the executor or administrator |
|
shall pay the entire allowance to the surviving spouse. |
|
(c) If there is a surviving spouse and there are children of |
|
the decedent who are not also children of the surviving spouse, the |
|
executor or administrator shall pay the surviving spouse one-half |
|
of the entire allowance plus the shares of the decedent's children |
|
of whom the surviving spouse is the parent. The remaining shares |
|
must be paid to: |
|
(1) the decedent's children of whom the surviving |
|
spouse is not a parent; or |
|
(2) the guardian of the children described by |
|
Subdivision (1), if those children are minors. |
|
(d) If there is no surviving spouse and there are children |
|
of the decedent, the executor or administrator shall divide the |
|
entire allowance equally among the children and pay the children's |
|
shares to the children, if the children are of legal age, or, if any |
|
of the children are minors, pay the minor children's shares to the |
|
guardian of the minor children. (Tex. Prob. Code, Sec. 275.) |
|
Sec. 353.055. METHOD OF PAYING ALLOWANCE IN LIEU OF EXEMPT |
|
PROPERTY. (a) An allowance in lieu of any exempt property shall be |
|
paid in the manner selected by the decedent's surviving spouse or |
|
children of legal age, or by the guardian of the decedent's minor |
|
children, as follows: |
|
(1) in money out of estate funds that come into the |
|
executor's or administrator's possession; |
|
(2) in any of the decedent's property or a part of the |
|
property chosen by those individuals at the appraisement; or |
|
(3) part in money described by Subdivision (1) and |
|
part in property described by Subdivision (2). |
|
(b) Property specifically devised to another may be taken as |
|
provided by Subsection (a) only if other available property is |
|
insufficient to pay the allowance. (Tex. Prob. Code, Sec. 274 |
|
(part).) |
|
Sec. 353.056. SALE OF PROPERTY TO RAISE FUNDS FOR ALLOWANCE |
|
IN LIEU OF EXEMPT PROPERTY. (a) On the written application of the |
|
decedent's surviving spouse and children, the court shall order the |
|
sale of estate property for cash in an amount that will be |
|
sufficient to raise the amount of the allowance provided under |
|
Section 353.053 or a portion of that amount, as necessary, if: |
|
(1) the decedent had no property that the surviving |
|
spouse or children are willing to take for the allowance or the |
|
decedent had insufficient property; and |
|
(2) there are not sufficient estate funds in the |
|
executor's or administrator's possession to pay the amount of the |
|
allowance or a portion of that amount, as applicable. |
|
(b) Property specifically devised to another may be sold to |
|
raise cash as provided by Subsection (a) only if other available |
|
property is insufficient to pay the allowance. (Tex. Prob. Code, |
|
Secs. 274 (part), 276.) |
|
[Sections 353.057-353.100 reserved for expansion] |
|
SUBCHAPTER C. FAMILY ALLOWANCE |
|
Sec. 353.101. FAMILY ALLOWANCE. (a) Unless an application |
|
and verified affidavit are filed as provided by Subsection (b), |
|
immediately after the inventory, appraisement, and list of claims |
|
of an estate are approved, the court shall fix a family allowance |
|
for the support of the decedent's surviving spouse and minor |
|
children. |
|
(b) Before the inventory, appraisement, and list of claims |
|
of an estate are approved, the decedent's surviving spouse or any |
|
other person authorized to act on behalf of the decedent's minor |
|
children may apply to the court to have the court fix the family |
|
allowance by filing an application and a verified affidavit |
|
describing: |
|
(1) the amount necessary for the maintenance of the |
|
surviving spouse and the decedent's minor children for one year |
|
after the date of the decedent's death; and |
|
(2) the surviving spouse's separate property and any |
|
property that the decedent's minor children have in their own |
|
right. |
|
(c) At a hearing on an application filed under Subsection |
|
(b), the applicant has the burden of proof by a preponderance of the |
|
evidence. The court shall fix a family allowance for the support of |
|
the decedent's surviving spouse and minor children. |
|
(d) A family allowance may not be made for: |
|
(1) the decedent's surviving spouse, if the surviving |
|
spouse has separate property adequate for the surviving spouse's |
|
maintenance; or |
|
(2) the decedent's minor children, if the minor |
|
children have property in their own right adequate for the |
|
children's maintenance. (Tex. Prob. Code, Secs. 286, 288.) |
|
Sec. 353.102. AMOUNT AND METHOD OF PAYMENT OF FAMILY |
|
ALLOWANCE. (a) The amount of the family allowance must be |
|
sufficient for the maintenance of the decedent's surviving spouse |
|
and minor children for one year from the date of the decedent's |
|
death. |
|
(b) The allowance must be fixed with regard to the facts or |
|
circumstances then existing and the facts and circumstances |
|
anticipated to exist during the first year after the decedent's |
|
death. |
|
(c) The allowance may be paid in a lump sum or in |
|
installments, as ordered by the court. (Tex. Prob. Code, Sec. 287.) |
|
Sec. 353.103. ORDER FIXING FAMILY ALLOWANCE. When a family |
|
allowance has been fixed, the court shall enter an order that: |
|
(1) states the amount of the allowance; |
|
(2) provides how the allowance shall be payable; and |
|
(3) directs the executor or administrator to pay the |
|
allowance in accordance with law. (Tex. Prob. Code, Sec. 289.) |
|
Sec. 353.104. PREFERENCE OF FAMILY ALLOWANCE. The family |
|
allowance made for the support of the decedent's surviving spouse |
|
and minor children shall be paid in preference to all other debts of |
|
or charges against the estate, other than Class 1 claims. (Tex. |
|
Prob. Code, Sec. 290.) |
|
Sec. 353.105. PAYMENT OF FAMILY ALLOWANCE. (a) The |
|
executor or administrator of an estate shall apportion and pay the |
|
family allowance in accordance with this section. |
|
(b) If there is a surviving spouse and there are no minor |
|
children of the decedent, the executor or administrator shall pay |
|
the entire family allowance to the surviving spouse. |
|
(c) If there is a surviving spouse and all of the minor |
|
children of the decedent are also the children of the surviving |
|
spouse, the executor or administrator shall pay the entire family |
|
allowance to the surviving spouse for use by the surviving spouse |
|
and the decedent's minor children. |
|
(d) If there is a surviving spouse and some or all of the |
|
minor children of the decedent are not also children of the |
|
surviving spouse, the executor or administrator shall pay the |
|
portion of the entire family allowance necessary for the support of |
|
those minor children to the guardian of those children. |
|
(e) If there is no surviving spouse and there are minor |
|
children of the decedent, the executor or administrator shall pay |
|
the family allowance for the minor children to the guardian of those |
|
children. (Tex. Prob. Code, Sec. 291.) |
|
Sec. 353.106. SURVIVING SPOUSE OR MINOR CHILDREN MAY TAKE |
|
PERSONAL PROPERTY FOR FAMILY ALLOWANCE. (a) A decedent's |
|
surviving spouse or the guardian of the decedent's minor children, |
|
as applicable, is entitled to take, at the property's appraised |
|
value as shown by the appraisement, any of the estate's personal |
|
property in full or partial payment of the family allowance. |
|
(b) Property specifically devised to another may be taken as |
|
provided by Subsection (a) only if other available property is |
|
insufficient to pay the allowance. (Tex. Prob. Code, Sec. 292 |
|
(part).) |
|
Sec. 353.107. SALE OF ESTATE PROPERTY TO RAISE FUNDS FOR |
|
FAMILY ALLOWANCE. (a) The court shall, as soon as the inventory, |
|
appraisement, and list of claims are returned and approved, order |
|
the sale of estate property for cash in an amount that will be |
|
sufficient to raise the amount of the family allowance, or a portion |
|
of that amount, as necessary, if: |
|
(1) the decedent had no personal property that the |
|
surviving spouse or the guardian of the decedent's minor children |
|
is willing to take for the family allowance or the decedent had |
|
insufficient personal property; and |
|
(2) there are not sufficient estate funds in the |
|
executor's or administrator's possession to pay the amount of the |
|
family allowance or a portion of that amount, as applicable. |
|
(b) Property specifically devised to another may be sold to |
|
raise cash as provided by Subsection (a) only if other available |
|
property is insufficient to pay the family allowance. (Tex. Prob. |
|
Code, Secs. 292 (part), 293.) |
|
[Sections 353.108-353.150 reserved for expansion] |
|
SUBCHAPTER D. LIENS ON AND DISPOSITION OF EXEMPT PROPERTY AND |
|
PROPERTY TAKEN AS ALLOWANCE |
|
Sec. 353.151. LIENS. (a) This section applies to all |
|
estates, whether solvent or insolvent. |
|
(b) If property on which there is a valid subsisting lien or |
|
encumbrance is set aside as exempt for the surviving spouse or |
|
children or is appropriated to make an allowance in lieu of exempt |
|
property or for the support of the surviving spouse or children, the |
|
debts secured by the lien shall, if necessary, be either paid or |
|
continued against the property. (Tex. Prob. Code, Sec. 277.) |
|
Sec. 353.152. DISTRIBUTION OF EXEMPT PROPERTY OF SOLVENT |
|
ESTATE. If on final settlement of an estate it appears that the |
|
estate is solvent, the exempt property, other than the homestead or |
|
any allowance made in lieu of the homestead, is subject to partition |
|
and distribution among the heirs of the decedent and the |
|
distributees in the same manner as other estate property. (Tex. |
|
Prob. Code, Sec. 278.) |
|
Sec. 353.153. TITLE TO PROPERTY OF INSOLVENT ESTATE. If on |
|
final settlement an estate proves to be insolvent, the decedent's |
|
surviving spouse and children have absolute title to all property |
|
and allowances set aside or paid to them under this title. The |
|
property and allowances may not be taken for any of the estate debts |
|
except as provided by Section 353.155. (Tex. Prob. Code, Sec. 279.) |
|
Sec. 353.154. CERTAIN PROPERTY NOT CONSIDERED IN |
|
DETERMINING SOLVENCY. In determining whether an estate is solvent |
|
or insolvent, the exempt property set aside for the decedent's |
|
surviving spouse or children, any allowance made in lieu of that |
|
exempt property, and the family allowance under Subchapter C may |
|
not be estimated or considered as estate assets. (Tex. Prob. Code, |
|
Sec. 280.) |
|
Sec. 353.155. EXEMPT PROPERTY LIABLE FOR CERTAIN DEBTS. |
|
The exempt property, other than the homestead or any allowance made |
|
in lieu of the homestead: |
|
(1) is liable for the payment of Class 1 claims; and |
|
(2) is not liable for any estate debts other than the |
|
claims described by Subdivision (1). (Tex. Prob. Code, Sec. 281.) |
|
CHAPTER 354. SUMMARY PROCEEDINGS FOR, OR WITHDRAWAL FROM |
ADMINISTRATION OF, CERTAIN ESTATES |
|
ADMINISTRATION OF, CERTAIN ESTATES |
|
|
SUBCHAPTER A. |
SUMMARY PROCEEDINGS FOR CERTAIN SMALL ESTATES |
|
Sec. |
354.001. SUMMARY PROCEEDINGS FOR CERTAIN SMALL |
|
ESTATES |
|
[Sections 354.002-354.050 reserved for expansion] |
|
SUBCHAPTER B. WITHDRAWAL FROM ADMINISTRATION OF CERTAIN ESTATES |
|
|
Sec. 354.051. REQUIRED REPORT ON CONDITION OF ESTATE |
|
Sec. |
354.052. BOND REQUIRED TO WITHDRAW ESTATE FROM |
|
ADMINISTRATION |
|
Sec. 354.053. ORDER FOR DELIVERY OF ESTATE |
|
Sec. 354.054. ORDER OF DISCHARGE |
|
Sec. |
354.055. LIEN ON PROPERTY OF ESTATE WITHDRAWN |
|
FROM ADMINISTRATION |
|
Sec. |
354.056. PARTITION OF ESTATE WITHDRAWN FROM |
|
ADMINISTRATION |
|
Sec. 354.057. CREDITORS ENTITLED TO SUE ON BOND |
|
Sec. 354.058. CREDITORS MAY SUE DISTRIBUTEES |
|
CHAPTER 354. SUMMARY PROCEEDINGS FOR, OR WITHDRAWAL FROM |
|
ADMINISTRATION OF, CERTAIN ESTATES |
|
SUBCHAPTER A. SUMMARY PROCEEDINGS FOR CERTAIN SMALL ESTATES |
|
Sec. 354.001. SUMMARY PROCEEDINGS FOR CERTAIN SMALL |
|
ESTATES. (a) If, after a personal representative of an estate has |
|
filed the inventory, appraisement, and list of claims as required |
|
by Chapter 309, it is established that the decedent's estate, |
|
excluding any homestead, exempt property, and family allowance to |
|
the decedent's surviving spouse and minor children, does not exceed |
|
the amount sufficient to pay the claims against the estate |
|
classified as Classes 1 through 4 under Section 355.102, the |
|
representative shall: |
|
(1) on order of the court, pay those claims in the |
|
order provided and to the extent permitted by the assets of the |
|
estate subject to the payment of those claims; and |
|
(2) after paying the claims in accordance with |
|
Subdivision (1), present to the court the representative's account |
|
with an application for the settlement and allowance of the |
|
account. |
|
(b) On presentation of the personal representative's |
|
account and application under Subsection (a), the court, with or |
|
without notice, may adjust, correct, settle, allow, or disallow the |
|
account. |
|
(c) If the court settles and allows the personal |
|
representative's account under Subsection (b), the court may: |
|
(1) decree final distribution; |
|
(2) discharge the representative; and |
|
(3) close the administration. (Tex. Prob. Code, Sec. |
|
143.) |
|
[Sections 354.002-354.050 reserved for expansion] |
|
SUBCHAPTER B. WITHDRAWAL FROM ADMINISTRATION OF CERTAIN ESTATES |
|
Sec. 354.051. REQUIRED REPORT ON CONDITION OF ESTATE. At |
|
any time after the return of the inventory, appraisement, and list |
|
of claims of an estate required by Chapter 309, anyone entitled to a |
|
portion of the estate, by a written complaint filed in the court in |
|
which the case is pending, may have the estate's executor or |
|
administrator cited to appear and render under oath an exhibit of |
|
the condition of the estate. (Tex. Prob. Code, Sec. 262.) |
|
Sec. 354.052. BOND REQUIRED TO WITHDRAW ESTATE FROM |
|
ADMINISTRATION. After the executor or administrator has rendered |
|
the exhibit of the condition of the estate if required under Section |
|
354.051, one or more persons entitled to the estate, or other |
|
persons for them, may execute and deliver a bond to the court. The |
|
bond must be: |
|
(1) conditioned that the persons executing the bond |
|
shall: |
|
(A) pay all unpaid debts against the estate that |
|
have been or are: |
|
(i) allowed by the executor or |
|
administrator and approved by the court; or |
|
(ii) established by suit against the |
|
estate; and |
|
(B) pay to the executor or administrator any |
|
balance that the court in its judgment on the exhibit finds to be |
|
due the executor or administrator; |
|
(2) payable to the judge and the judge's successors in |
|
office in an amount equal to at least twice the gross appraised |
|
value of the estate as shown by the inventory, appraisement, and |
|
list of claims returned under Chapter 309; and |
|
(3) approved by the court. (Tex. Prob. Code, Sec. |
|
263.) |
|
Sec. 354.053. ORDER FOR DELIVERY OF ESTATE. On the giving |
|
and approval of the bond under Section 354.052, the court shall |
|
enter an order requiring the executor or administrator to promptly |
|
deliver to each person entitled to any portion of the estate that |
|
portion to which the person is entitled. (Tex. Prob. Code, Sec. |
|
264.) |
|
Sec. 354.054. ORDER OF DISCHARGE. After an estate has been |
|
withdrawn from administration under Section 354.053, the court |
|
shall enter an order: |
|
(1) discharging the executor or administrator; and |
|
(2) declaring the administration closed. (Tex. Prob. |
|
Code, Sec. 265.) |
|
Sec. 354.055. LIEN ON PROPERTY OF ESTATE WITHDRAWN FROM |
|
ADMINISTRATION. A lien exists on all of the estate withdrawn from |
|
administration under Section 354.053 and in the possession of the |
|
distributees and those claiming under the distributees with notice |
|
of that lien, to secure the ultimate payment of: |
|
(1) the bond under Section 354.052; and |
|
(2) debts and claims secured by the bond. (Tex. Prob. |
|
Code, Sec. 266.) |
|
Sec. 354.056. PARTITION OF ESTATE WITHDRAWN FROM |
|
ADMINISTRATION. On written application to the court, any person |
|
entitled to any portion of an estate withdrawn from administration |
|
under Section 354.053 may cause a partition and distribution of the |
|
estate to be made among those persons entitled to the estate in |
|
accordance with the provisions of this title that relate to the |
|
partition and distribution of an estate. (Tex. Prob. Code, Sec. |
|
267.) |
|
Sec. 354.057. CREDITORS ENTITLED TO SUE ON BOND. A creditor |
|
of an estate withdrawn from administration under Section 354.053 |
|
whose debt or claim against the estate is unpaid and not barred by |
|
limitation is entitled to: |
|
(1) commence a suit in the person's own name on the |
|
bond under Section 354.052; and |
|
(2) obtain a judgment on the bond for the debt or claim |
|
the creditor establishes against the estate. (Tex. Prob. Code, |
|
Sec. 268.) |
|
Sec. 354.058. CREDITORS MAY SUE DISTRIBUTEES. (a) A |
|
creditor of an estate withdrawn from administration under Section |
|
354.053 whose debt or claim against the estate is unpaid and not |
|
barred by limitation may sue: |
|
(1) any distributee who has received any of the |
|
estate; or |
|
(2) all the distributees jointly. |
|
(b) A distributee is not liable for more than the |
|
distributee's just proportion according to the amount of the estate |
|
the distributee received in the distribution. (Tex. Prob. Code, |
|
Sec. 269.) |
|
CHAPTER 355. PRESENTMENT AND PAYMENT OF CLAIMS |
|
|
SUBCHAPTER A. PRESENTMENT OF CLAIMS AGAINST ESTATES IN GENERAL |
|
|
Sec. |
355.001. PRESENTMENT OF CLAIM TO PERSONAL |
|
REPRESENTATIVE |
|
Sec. 355.002. PRESENTMENT OF CLAIM TO CLERK |
|
Sec. 355.003. INCLUSION OF ATTORNEY'S FEES IN CLAIM |
|
Sec. |
355.004. AFFIDAVIT AUTHENTICATING CLAIM FOR MONEY |
|
IN GENERAL |
|
Sec. |
355.005. AFFIDAVIT AUTHENTICATING CLAIM OF |
|
CORPORATION OR OTHER ENTITY |
|
Sec. |
355.006. LOST OR DESTROYED EVIDENCE CONCERNING |
|
CLAIM |
|
Sec. |
355.007. WAIVER OF CERTAIN DEFECTS OF FORM OR |
|
CLAIMS OF INSUFFICIENCY |
|
Sec. |
355.008. EFFECT ON STATUTES OF LIMITATION OF |
|
PRESENTMENT OF OR SUIT ON CLAIM |
|
[Sections 355.009-355.050 reserved for expansion] |
|
SUBCHAPTER B. ACTION ON CLAIMS |
|
|
Sec. 355.051. ALLOWANCE OR REJECTION OF CLAIM |
|
Sec. 355.052. FAILURE TO TIMELY ALLOW OR REJECT CLAIM |
|
Sec. 355.053. CLAIM ENTERED ON CLAIM DOCKET |
|
Sec. 355.054. CONTEST OF CLAIM |
|
Sec. 355.055. COURT'S ACTION ON CLAIM |
|
Sec. 355.056. HEARING ON CERTAIN CLAIMS |
|
Sec. 355.057. COURT ORDER REGARDING ACTION ON CLAIM |
|
Sec. 355.058. APPEAL OF COURT'S ACTION ON CLAIM |
|
Sec. |
355.059. ALLOWANCE AND APPROVAL PROHIBITED |
|
WITHOUT AFFIDAVIT |
|
Sec. |
355.060. UNSECURED CLAIMS BARRED UNDER CERTAIN |
|
CIRCUMSTANCES |
|
Sec. |
355.061. ALLOWING BARRED CLAIM PROHIBITED: COURT |
|
DISAPPROVAL |
|
Sec. |
355.062. CERTAIN ACTIONS ON CLAIMS WITH LOST OR |
|
DESTROYED EVIDENCE VOID |
|
Sec. |
355.063. CLAIMS NOT ALLOWED AFTER ORDER FOR |
|
PARTITION AND DISTRIBUTION |
|
Sec. 355.064. SUIT ON REJECTED CLAIM |
|
Sec. |
355.065. PRESENTMENT OF CLAIM PREREQUISITE FOR |
|
JUDGMENT |
|
Sec. 355.066. JUDGMENT IN SUIT ON REJECTED CLAIM |
|
[Sections 355.067-355.100 reserved for expansion] |
|
SUBCHAPTER C. PAYMENT OF CLAIMS, ALLOWANCES, AND EXPENSES |
|
|
Sec. |
355.101. APPROVAL OR ESTABLISHMENT OF CLAIM |
|
REQUIRED FOR PAYMENT |
|
Sec. |
355.102. CLAIMS CLASSIFICATION; PRIORITY OF |
|
PAYMENT |
|
Sec. 355.103. PRIORITY OF CERTAIN PAYMENTS |
|
Sec. |
355.104. PAYMENT OF PROCEEDS FROM SALE OF |
|
PROPERTY SECURING DEBT |
|
Sec. |
355.105. CLAIMANT'S PETITION FOR ALLOWANCE AND |
|
PAYMENT OF CLAIM |
|
Sec. |
355.106. ORDER FOR PAYMENT OF CLAIM OBTAINED BY |
|
PERSONAL REPRESENTATIVE |
|
Sec. |
355.107. ORDER FOR PAYMENT OF CLAIM OBTAINED BY |
|
CREDITOR |
|
Sec. |
355.108. PAYMENT WHEN ASSETS INSUFFICIENT TO PAY |
|
CLAIMS OF SAME CLASS |
|
Sec. 355.109. ABATEMENT OF BEQUESTS |
|
Sec. 355.110. ALLOCATION OF FUNERAL EXPENSES |
|
Sec. 355.111. PAYMENT OF COURT COSTS RELATING TO CLAIM |
|
Sec. |
355.112. JOINT OBLIGATION FOR PAYMENT OF CERTAIN |
|
DEBTS |
|
Sec. 355.113. LIABILITY FOR NONPAYMENT OF CLAIM |
|
[Sections 355.114-355.150 reserved for expansion] |
|
SUBCHAPTER D. PRESENTMENT AND PAYMENT OF SECURED CLAIMS FOR MONEY |
|
|
Sec. |
355.151. OPTION TO TREAT CLAIM AS MATURED SECURED |
|
CLAIM OR PREFERRED DEBT AND LIEN |
|
Sec. |
355.152. PERIOD FOR SPECIFYING TREATMENT OF |
|
SECURED CLAIM |
|
Sec. 355.153. PAYMENT OF MATURED SECURED CLAIM |
|
Sec. 355.154. PREFERRED DEBT AND LIEN |
|
Sec. |
355.155. PAYMENT OF MATURITIES ON PREFERRED DEBT |
|
AND LIEN |
|
Sec. 355.156. AFFIDAVIT REQUIRED FOR FORECLOSURE |
|
Sec. 355.157. CITATION ON APPLICATION |
|
Sec. 355.158. HEARING ON APPLICATION |
|
Sec. 355.159. MANNER OF FORECLOSURE; MINIMUM PRICE |
|
Sec. |
355.160. UNSUCCESSFUL FORECLOSURE; SUBSEQUENT |
|
APPLICATION |
|
[Sections 355.161-355.200 reserved for expansion] |
|
SUBCHAPTER E. |
CLAIMS INVOLVING PERSONAL REPRESENTATIVES |
|
Sec. 355.201. CLAIM BY PERSONAL REPRESENTATIVE |
|
Sec. 355.202. CLAIMS AGAINST PERSONAL REPRESENTATIVES |
|
Sec. |
355.203. PURCHASE OF CLAIM BY PERSONAL |
|
REPRESENTATIVE PROHIBITED |
|
CHAPTER 355. PRESENTMENT AND PAYMENT OF CLAIMS |
|
SUBCHAPTER A. PRESENTMENT OF CLAIMS AGAINST ESTATES IN GENERAL |
|
Sec. 355.001. PRESENTMENT OF CLAIM TO PERSONAL |
|
REPRESENTATIVE. A claim may be presented to a personal |
|
representative of an estate at any time before the estate is closed |
|
if suit on the claim has not been barred by the general statutes of |
|
limitation. (Tex. Prob. Code, Sec. 298(a) (part).) |
|
Sec. 355.002. PRESENTMENT OF CLAIM TO CLERK. (a) A claim |
|
may also be presented by depositing the claim with the clerk with |
|
vouchers and the necessary exhibits and affidavit attached to the |
|
claim. On receiving a claim deposited under this subsection, the |
|
clerk shall advise the personal representative or the |
|
representative's attorney of the deposit of the claim by a letter |
|
mailed to the representative's last known address. |
|
(b) A claim deposited under Subsection (a) is presumed to be |
|
rejected if the personal representative fails to act on the claim on |
|
or before the 30th day after the date the claim is deposited. |
|
(c) Failure of the clerk to give the notice required under |
|
Subsection (a) does not affect the validity of the presentment or |
|
the presumption of rejection because the personal representative |
|
does not act on the claim within the 30-day period prescribed by |
|
Subsection (b). |
|
(d) The clerk shall enter a claim deposited under Subsection |
|
(a) on the claim docket. (Tex. Prob. Code, Sec. 308.) |
|
Sec. 355.003. INCLUSION OF ATTORNEY'S FEES IN CLAIM. If the |
|
instrument evidencing or supporting a claim provides for attorney's |
|
fees, the claimant may include as a part of the claim the portion of |
|
attorney's fees the claimant has paid or contracted to pay to an |
|
attorney to prepare, present, and collect the claim. (Tex. Prob. |
|
Code, Sec. 307.) |
|
Sec. 355.004. AFFIDAVIT AUTHENTICATING CLAIM FOR MONEY IN |
|
GENERAL. (a) Except as provided by Section 355.005, a claim for |
|
money against an estate must be supported by an affidavit that |
|
states: |
|
(1) that the claim is just; |
|
(2) that all legal offsets, payments, and credits |
|
known to the affiant have been allowed; and |
|
(3) if the claim is not founded on a written instrument |
|
or account, the facts on which the claim is founded. |
|
(b) A photostatic copy of an exhibit or voucher necessary to |
|
prove a claim may be offered with and attached to the claim instead |
|
of attaching the original. (Tex. Prob. Code, Sec. 301 (part).) |
|
Sec. 355.005. AFFIDAVIT AUTHENTICATING CLAIM OF |
|
CORPORATION OR OTHER ENTITY. (a) An authorized officer or |
|
representative of a corporation or other entity shall make the |
|
affidavit required to authenticate a claim of the corporation or |
|
entity. |
|
(b) In an affidavit made by an officer of a corporation, or |
|
by an executor, administrator, trustee, assignee, agent, |
|
representative, or attorney, it is sufficient to state that the |
|
affiant has made diligent inquiry and examination and believes the |
|
claim is just and that all legal offsets, payments, and credits made |
|
known to the affiant have been allowed. (Tex. Prob. Code, Sec. |
|
304.) |
|
Sec. 355.006. LOST OR DESTROYED EVIDENCE CONCERNING CLAIM. |
|
If evidence of a claim is lost or destroyed, the claimant or an |
|
authorized representative or agent of the claimant may make an |
|
affidavit to the fact of the loss or destruction. The affidavit must |
|
state: |
|
(1) the amount, date, and nature of the claim; |
|
(2) the due date of the claim; |
|
(3) that the claim is just; |
|
(4) that all legal offsets, payments, and credits |
|
known to the affiant have been allowed; and |
|
(5) that the claimant is still the owner of the claim. |
|
(Tex. Prob. Code, Sec. 303 (part).) |
|
Sec. 355.007. WAIVER OF CERTAIN DEFECTS OF FORM OR CLAIMS OF |
|
INSUFFICIENCY. A defect of form or a claim of insufficiency of a |
|
presented exhibit or voucher is considered waived by the personal |
|
representative unless a written objection to the defect or |
|
insufficiency is made not later than the 30th day after the date the |
|
claim is presented and is filed with the county clerk. (Tex. Prob. |
|
Code, Sec. 302.) |
|
Sec. 355.008. EFFECT ON STATUTES OF LIMITATION OF |
|
PRESENTMENT OF OR SUIT ON CLAIM. The general statutes of limitation |
|
are tolled on the date: |
|
(1) a claim for money is filed or deposited with the |
|
clerk; or |
|
(2) suit is brought against the personal |
|
representative of an estate with respect to a claim of the estate |
|
that is not required to be presented to the representative. (Tex. |
|
Prob. Code, Sec. 299.) |
|
[Sections 355.009-355.050 reserved for expansion] |
|
SUBCHAPTER B. ACTION ON CLAIMS |
|
Sec. 355.051. ALLOWANCE OR REJECTION OF CLAIM. A personal |
|
representative of an estate shall, not later than the 30th day after |
|
the date an authenticated claim against the estate is presented to |
|
the representative, or deposited with the clerk as provided under |
|
Section 355.002, endorse on the claim, attach to the claim, or file |
|
with the clerk a memorandum signed by the representative stating: |
|
(1) the date the claim was presented or deposited; and |
|
(2) whether the representative allows or rejects the |
|
claim, or if the representative allows or rejects a part of the |
|
claim, the portion the representative allows or rejects. (Tex. |
|
Prob. Code, Sec. 309.) |
|
Sec. 355.052. FAILURE TO TIMELY ALLOW OR REJECT CLAIM. The |
|
failure of a personal representative to timely allow or reject a |
|
claim under Section 355.051 constitutes a rejection of the claim. |
|
If the claim is established by suit after that rejection: |
|
(1) the costs shall be taxed against the |
|
representative, individually; or |
|
(2) the representative may be removed on the written |
|
complaint of any person interested in the claim after personal |
|
service of citation, hearing, and proof, as in other cases of |
|
removal. (Tex. Prob. Code, Sec. 310.) |
|
Sec. 355.053. CLAIM ENTERED ON CLAIM DOCKET. After a claim |
|
against an estate has been presented to the personal representative |
|
and allowed or rejected, wholly or partly, by the representative, |
|
the claim must be filed with the county clerk of the proper county. |
|
The clerk shall enter the claim on the claim docket. (Tex. Prob. |
|
Code, Sec. 311.) |
|
Sec. 355.054. CONTEST OF CLAIM. (a) A person interested in |
|
an estate may, at any time before the court has acted on a claim, |
|
appear and object in writing to the approval of the claim or any |
|
part of the claim. |
|
(b) If a person objects under Subsection (a): |
|
(1) the parties are entitled to process for witnesses; |
|
and |
|
(2) the court shall hear evidence and render judgment |
|
as in ordinary suits. (Tex. Prob. Code, Sec. 312(a).) |
|
Sec. 355.055. COURT'S ACTION ON CLAIM. The court shall: |
|
(1) act on each claim that has been allowed and entered |
|
on the claim docket for a period of 10 days either approving the |
|
claim wholly or partly or disapproving the claim; and |
|
(2) concurrently classify the claim. (Tex. Prob. |
|
Code, Sec. 312(b).) |
|
Sec. 355.056. HEARING ON CERTAIN CLAIMS. (a) If a claim is |
|
properly authenticated and allowed but the court is not satisfied |
|
that the claim is just, the court shall: |
|
(1) examine the claimant and the personal |
|
representative under oath; and |
|
(2) hear other evidence necessary to determine the |
|
issue. |
|
(b) If after conducting the examination and hearing the |
|
evidence under Subsection (a) the court is not convinced that the |
|
claim is just, the court shall disapprove the claim. (Tex. Prob. |
|
Code, Sec. 312(c).) |
|
Sec. 355.057. COURT ORDER REGARDING ACTION ON CLAIM. (a) |
|
The court acting on a claim shall state the exact action taken on |
|
the claim, whether the claim is approved or disapproved, or |
|
approved in part and disapproved in part, and the classification of |
|
the claim by endorsing on or attaching to the claim a written |
|
memorandum that is dated and officially signed. |
|
(b) An order under Subsection (a) has the effect of a final |
|
judgment. (Tex. Prob. Code, Sec. 312(d).) |
|
Sec. 355.058. APPEAL OF COURT'S ACTION ON CLAIM. A claimant |
|
or any person interested in an estate who is dissatisfied with the |
|
court's action on a claim may appeal the action to the court of |
|
appeals in the manner other judgments of the county court in probate |
|
matters are appealed. (Tex. Prob. Code, Sec. 312(e).) |
|
Sec. 355.059. ALLOWANCE AND APPROVAL PROHIBITED WITHOUT |
|
AFFIDAVIT. A personal representative of an estate may not allow, |
|
and the court may not approve, a claim for money against the estate |
|
unless the claim is supported by an affidavit that meets the |
|
applicable requirements of Sections 355.004(a) and 355.005. (Tex. |
|
Prob. Code, Sec. 301 (part).) |
|
Sec. 355.060. UNSECURED CLAIMS BARRED UNDER CERTAIN |
|
CIRCUMSTANCES. If a personal representative gives a notice |
|
permitted by Section 308.054 to an unsecured creditor for money and |
|
the creditor's claim is not presented within four months after the |
|
date of receipt of the notice, the claim is barred. (Tex. Prob. |
|
Code, Sec. 298(a) (part).) |
|
Sec. 355.061. ALLOWING BARRED CLAIM PROHIBITED: COURT |
|
DISAPPROVAL. (a) A personal representative may not allow a claim |
|
for money against a decedent or the decedent's estate if a suit on |
|
the claim is barred: |
|
(1) under Section 355.060, 355.064, or 355.201(b); or |
|
(2) by an applicable general statute of limitation. |
|
(b) A claim for money that is allowed by the personal |
|
representative shall be disapproved if the court is satisfied that |
|
the claim is barred, including because the limitation has run. |
|
(Tex. Prob. Code, Sec. 298(b).) |
|
Sec. 355.062. CERTAIN ACTIONS ON CLAIMS WITH LOST OR |
|
DESTROYED EVIDENCE VOID. (a) Before a claim the evidence for which |
|
is lost or destroyed is approved, the claim must be proved by |
|
disinterested testimony taken in open court or by oral or written |
|
deposition. |
|
(b) The allowance or approval of a claim the evidence for |
|
which is lost or destroyed is void if the claim is: |
|
(1) allowed or approved without the affidavit under |
|
Section 355.006; or |
|
(2) approved without satisfactory proof. (Tex. Prob. |
|
Code, Sec. 303 (part).) |
|
Sec. 355.063. CLAIMS NOT ALLOWED AFTER ORDER FOR PARTITION |
|
AND DISTRIBUTION. After an order for final partition and |
|
distribution of an estate has been made: |
|
(1) a claim for money against the estate may not be |
|
allowed by a personal representative; |
|
(2) a suit may not be commenced against the |
|
representative on a claim for money against the estate; and |
|
(3) the owner of any claim that is not barred by the |
|
laws of limitation has a right of action on the claim against the |
|
heirs, devisees, or creditors of the estate, limited to the value of |
|
the property received by those heirs, devisees, or creditors in |
|
distributions from the estate. (Tex. Prob. Code, Sec. 318.) |
|
Sec. 355.064. SUIT ON REJECTED CLAIM. (a) A claim or part |
|
of a claim that has been rejected by the personal representative is |
|
barred unless not later than the 90th day after the date of |
|
rejection the claimant commences suit on the claim in the court of |
|
original probate jurisdiction in which the estate is pending. |
|
(b) In a suit commenced on the rejected claim, the |
|
memorandum endorsed on or attached to the claim, or any other |
|
memorandum of rejection filed with respect to the claim, is taken to |
|
be true without further proof unless denied under oath. (Tex. Prob. |
|
Code, Sec. 313 (part).) |
|
Sec. 355.065. PRESENTMENT OF CLAIM PREREQUISITE FOR |
|
JUDGMENT. A judgment may not be rendered in favor of a claimant on a |
|
claim for money that has not been: |
|
(1) legally presented to the personal representative |
|
of an estate; and |
|
(2) wholly or partly rejected by the representative or |
|
disapproved by the court. (Tex. Prob. Code, Sec. 314.) |
|
Sec. 355.066. JUDGMENT IN SUIT ON REJECTED CLAIM. No |
|
execution may issue on a rejected claim or part of a claim that is |
|
established by suit. The judgment in the suit shall be: |
|
(1) filed in the court in which the estate is pending; |
|
(2) entered on the claim docket; |
|
(3) classified by the court; and |
|
(4) handled as if originally allowed and approved in |
|
due course of administration. (Tex. Prob. Code, Sec. 313 (part).) |
|
[Sections 355.067-355.100 reserved for expansion] |
|
SUBCHAPTER C. PAYMENT OF CLAIMS, ALLOWANCES, AND EXPENSES |
|
Sec. 355.101. APPROVAL OR ESTABLISHMENT OF CLAIM REQUIRED |
|
FOR PAYMENT. A claim or any part of a claim for money against an |
|
estate may not be paid until the claim or part of the claim has been |
|
approved by the court or established by the judgment of a court of |
|
competent jurisdiction. (Tex. Prob. Code, Sec. 319.) |
|
Sec. 355.102. CLAIMS CLASSIFICATION; PRIORITY OF PAYMENT. |
|
(a) Claims against an estate shall be classified and have priority |
|
of payment as provided by this section. |
|
(b) Class 1 claims are composed of funeral expenses and |
|
expenses of the decedent's last illness for a reasonable amount |
|
approved by the court, not to exceed a total of $15,000. Any excess |
|
shall be classified and paid as other unsecured claims. |
|
(c) Class 2 claims are composed of expenses of |
|
administration, expenses incurred in preserving, safekeeping, and |
|
managing the estate, including fees and expenses awarded under |
|
Section 352.052, and unpaid expenses of administration awarded in a |
|
guardianship of the decedent. |
|
(d) Class 3 claims are composed of each secured claim for |
|
money under Section 355.151(a)(1), including a tax lien, to the |
|
extent the claim can be paid out of the proceeds of the property |
|
subject to the mortgage or other lien. If more than one mortgage, |
|
lien, or security interest exists on the same property, the claims |
|
shall be paid in order of priority of the mortgage, lien, or |
|
security interest securing the debt. |
|
(e) Class 4 claims are composed of claims for the principal |
|
amount of and accrued interest on delinquent child support and |
|
child support arrearages that have been confirmed and reduced to |
|
money judgment, as determined under Subchapter F, Chapter 157, |
|
Family Code, and claims for unpaid child support obligations under |
|
Section 154.015, Family Code. |
|
(f) Class 5 claims are composed of claims for taxes, |
|
penalties, and interest due under Title 2, Tax Code, Chapter 2153, |
|
Occupations Code, Section 81.111, Natural Resources Code, the |
|
Municipal Sales and Use Tax Act (Chapter 321, Tax Code), Section |
|
451.404, Transportation Code, or Subchapter I, Chapter 452, |
|
Transportation Code. |
|
(g) Class 6 claims are composed of claims for the cost of |
|
confinement established by the institutional division of the Texas |
|
Department of Criminal Justice under Section 501.017, Government |
|
Code. |
|
(h) Class 7 claims are composed of claims for repayment of |
|
medical assistance payments made by the state under Chapter 32, |
|
Human Resources Code, to or for the benefit of the decedent. |
|
(i) Class 8 claims are composed of any other claims not |
|
described by Subsections (b)-(h). (Tex. Prob. Code, Sec. 322.) |
|
Sec. 355.103. PRIORITY OF CERTAIN PAYMENTS. When a |
|
personal representative has estate funds in the representative's |
|
possession, the representative shall pay in the following order: |
|
(1) funeral expenses and expenses of the decedent's |
|
last illness, in an amount not to exceed $15,000; |
|
(2) allowances made to the decedent's surviving spouse |
|
and children, or to either the surviving spouse or children; |
|
(3) expenses of administration and expenses incurred |
|
in preserving, safekeeping, and managing the estate; and |
|
(4) other claims against the estate in the order of the |
|
claims' classifications. (Tex. Prob. Code, Sec. 320(a).) |
|
Sec. 355.104. PAYMENT OF PROCEEDS FROM SALE OF PROPERTY |
|
SECURING DEBT. (a) If a personal representative has the proceeds |
|
of a sale made to satisfy a mortgage, lien, or security interest, |
|
and the proceeds or any part of the proceeds are not required for |
|
the payment of any debts against the estate that have a preference |
|
over the mortgage, lien, or security interest, the representative |
|
shall pay the proceeds to any holder of a mortgage, lien, or |
|
security interest. If there is more than one mortgage, lien, or |
|
security interest against the property, the representative shall |
|
pay the proceeds to the holders of the mortgages, liens, or security |
|
interests in the order of priority of the holders' mortgages, |
|
liens, or security interests. |
|
(b) A holder of a mortgage, lien, or security interest, on |
|
proof of a personal representative's failure to pay proceeds under |
|
this section, may obtain an order from the court directing the |
|
payment to be made. (Tex. Prob. Code, Sec. 320(b).) |
|
Sec. 355.105. CLAIMANT'S PETITION FOR ALLOWANCE AND PAYMENT |
|
OF CLAIM. A claimant whose claim has not been paid may: |
|
(1) petition the court for determination of the claim |
|
at any time before the claim is barred by an applicable statute of |
|
limitations; and |
|
(2) procure on due proof an order for the claim's |
|
allowance and payment from the estate. (Tex. Prob. Code, Sec. |
|
320(c).) |
|
Sec. 355.106. ORDER FOR PAYMENT OF CLAIM OBTAINED BY |
|
PERSONAL REPRESENTATIVE. After the sixth month after the date |
|
letters testamentary or of administration are granted, the court |
|
may order a personal representative to pay any claim that is allowed |
|
and approved on application by the representative stating that the |
|
representative has no actual knowledge of any outstanding |
|
enforceable claim against the estate other than the claims already |
|
approved and classified by the court. (Tex. Prob. Code, Sec. |
|
320(d).) |
|
Sec. 355.107. ORDER FOR PAYMENT OF CLAIM OBTAINED BY |
|
CREDITOR. (a) At any time after the first anniversary of the date |
|
letters testamentary are granted for an estate, a creditor of the |
|
estate whose claim or part of a claim has been approved by the court |
|
or established by suit may obtain an order directing that payment of |
|
the claim or part of the claim be made on written application and |
|
proof, except as provided by Subsection (b), showing that the |
|
estate has sufficient available funds. |
|
(b) If the estate does not have available funds to pay a |
|
claim or part of a claim described by Subsection (a) and waiting for |
|
the estate to receive funds from other sources would unreasonably |
|
delay the payment, the court shall order the sale of estate property |
|
sufficient to make the payment. |
|
(c) The personal representative of the estate must first be |
|
cited on a written application under Subsection (a) to appear and |
|
show cause why the order should not be made. (Tex. Prob. Code, Sec. |
|
326.) |
|
Sec. 355.108. PAYMENT WHEN ASSETS INSUFFICIENT TO PAY |
|
CLAIMS OF SAME CLASS. (a) If there are insufficient assets to pay |
|
all claims of the same class, other than secured claims for money, |
|
the claims in that class shall be paid pro rata, as directed by the |
|
court, and in the order directed. |
|
(b) A personal representative may not be allowed to pay a |
|
claim under Subsection (a) other than with the pro rata amount of |
|
the estate funds that have come into the representative's |
|
possession, regardless of whether the estate is solvent or |
|
insolvent. (Tex. Prob. Code, Sec. 321.) |
|
Sec. 355.109. ABATEMENT OF BEQUESTS. (a) Except as |
|
provided by Subsections (b), (c), and (d), a decedent's property is |
|
liable for debts and expenses of administration other than estate |
|
taxes, and bequests abate in the following order: |
|
(1) property not disposed of by will, but passing by |
|
intestacy; |
|
(2) personal property of the residuary estate; |
|
(3) real property of the residuary estate; |
|
(4) general bequests of personal property; |
|
(5) general devises of real property; |
|
(6) specific bequests of personal property; and |
|
(7) specific devises of real property. |
|
(b) This section does not affect the requirements for |
|
payment of a claim of a secured creditor who elects to have the |
|
claim continued as a preferred debt and lien against specific |
|
property under Subchapter D. |
|
(c) A decedent's intent expressed in a will controls over |
|
the abatement of bequests provided by this section. |
|
(d) This section does not apply to the payment of estate |
|
taxes under Subchapter A, Chapter 124. (Tex. Prob. Code, Sec. |
|
322B.) |
|
Sec. 355.110. ALLOCATION OF FUNERAL EXPENSES. A personal |
|
representative paying a claim for funeral expenses and for items |
|
incident to the funeral, such as a tombstone, grave marker, crypt, |
|
or burial plot: |
|
(1) shall charge all of the claim to the decedent's |
|
estate; and |
|
(2) may not charge any part of the claim to the |
|
community share of a surviving spouse. (Tex. Prob. Code, Sec. |
|
320A.) |
|
Sec. 355.111. PAYMENT OF COURT COSTS RELATING TO CLAIM. All |
|
costs incurred in the probate court with respect to a claim shall be |
|
taxed as follows: |
|
(1) if the claim is allowed and approved, the estate |
|
shall pay the costs; |
|
(2) if the claim is allowed but disapproved, the |
|
claimant shall pay the costs; |
|
(3) if the claim is rejected but established by suit, |
|
the estate shall pay the costs; |
|
(4) if the claim is rejected and not established by |
|
suit, the claimant shall pay the costs, except as provided by |
|
Section 355.052; and |
|
(5) if the claim is rejected in part and the claimant |
|
fails, in a suit to establish the claim, to recover a judgment for a |
|
greater amount than was allowed or approved for the claim, the |
|
claimant shall pay all costs in the suit. (Tex. Prob. Code, Sec. |
|
315.) |
|
Sec. 355.112. JOINT OBLIGATION FOR PAYMENT OF CERTAIN |
|
DEBTS. On the death of a person jointly bound with one or more other |
|
persons for the payment of a debt or for any other purpose, the |
|
decedent's estate shall be charged by virtue of the obligation in |
|
the same manner as if the obligors had been bound severally as well |
|
as jointly. (Tex. Prob. Code, Sec. 323.) |
|
Sec. 355.113. LIABILITY FOR NONPAYMENT OF CLAIM. (a) A |
|
person or claimant, except the state treasury, entitled to payment |
|
from an estate of money the court orders to be paid is authorized to |
|
have execution issued against the estate property for the amount |
|
due, with interest and costs, if: |
|
(1) the personal representative fails to pay the money |
|
on demand; |
|
(2) estate funds are available to make the payment; |
|
and |
|
(3) the person or claimant makes an affidavit of the |
|
demand for payment and the representative's failure to pay. |
|
(b) The court may cite the personal representative and the |
|
sureties on the representative's bond to show cause why the |
|
representative and sureties should not be held liable under |
|
Subsection (a) for the debt, interest, costs, and damages: |
|
(1) on return of the execution not satisfied; or |
|
(2) on the affidavit of demand and failure to pay under |
|
Subsection (a). |
|
(c) On the return of citation served under Subsection (b), |
|
the court shall render judgment against the cited personal |
|
representative and sureties, in favor of the claim holder, if good |
|
cause why the representative and sureties should not be held liable |
|
is not shown. The judgment must be for: |
|
(1) the amount previously ordered to be paid or |
|
established by suit that remains unpaid, together with interest and |
|
costs; and |
|
(2) damages on the amount neglected to be paid at the |
|
rate of five percent per month for each month, or fraction of a |
|
month, that the payment was neglected to be paid after demand was |
|
made. |
|
(d) Damages ordered under Subsection (c)(2) may be |
|
collected in any court of competent jurisdiction. (Tex. Prob. |
|
Code, Sec. 328.) |
|
[Sections 355.114-355.150 reserved for expansion] |
|
SUBCHAPTER D. PRESENTMENT AND PAYMENT OF SECURED CLAIMS FOR MONEY |
|
Sec. 355.151. OPTION TO TREAT CLAIM AS MATURED SECURED |
|
CLAIM OR PREFERRED DEBT AND LIEN. (a) If a secured claim for money |
|
against an estate is presented, the claimant shall specify in the |
|
claim, in addition to all other matters required to be specified in |
|
the claim, whether the claimant desires to have the claim: |
|
(1) allowed and approved as a matured secured claim to |
|
be paid in due course of administration, in which case the claim |
|
shall be paid in that manner if allowed and approved; or |
|
(2) allowed, approved, and fixed as a preferred debt |
|
and lien against the specific property securing the indebtedness |
|
and paid according to the terms of the contract that secured the |
|
lien, in which case the claim shall be so allowed and approved if it |
|
is a valid lien. |
|
(b) Notwithstanding Subsection (a)(2), the personal |
|
representative may pay a claim that the claimant desired to have |
|
allowed, approved, and fixed as a preferred debt and lien as |
|
described by Subsection (a)(2) before maturity if that payment is |
|
in the best interest of the estate. (Tex. Prob. Code, Sec. 306(a).) |
|
Sec. 355.152. PERIOD FOR SPECIFYING TREATMENT OF SECURED |
|
CLAIM. (a) A secured creditor may present the creditor's claim for |
|
money and shall specify within the later of six months after the |
|
date letters testamentary or of administration are granted, or four |
|
months after the date notice required to be given under Section |
|
308.053 is received, whether the claim is to be allowed and approved |
|
under Section 355.151(a)(1) or (2). |
|
(b) A secured claim for money that is not presented within |
|
the period prescribed by Subsection (a) or that is presented |
|
without specifying how the claim is to be paid under Section 355.151 |
|
shall be treated as a claim to be paid in accordance with Section |
|
355.151(a)(2). (Tex. Prob. Code, Sec. 306(b).) |
|
Sec. 355.153. PAYMENT OF MATURED SECURED CLAIM. (a) A |
|
claim allowed and approved as a matured secured claim under Section |
|
355.151(a)(1) shall be paid in due course of administration, and |
|
the secured creditor is not entitled to exercise any other remedy in |
|
a manner that prevents the preferential payment of claims and |
|
allowances described by Sections 355.103(1), (2), and (3). |
|
(b) If a claim is allowed and approved as a matured secured |
|
claim under Section 355.151(a)(1) for a debt that would otherwise |
|
pass with the property securing the debt to one or more devisees in |
|
accordance with Section 255.301, the personal representative |
|
shall: |
|
(1) collect from the devisees the amount of the debt; |
|
and |
|
(2) pay that amount to the claimant in satisfaction of |
|
the claim. |
|
(c) Each devisee's share of the debt under Subsection (b) is |
|
an amount equal to a fraction representing the devisee's ownership |
|
interest in the property securing the debt, multiplied by the |
|
amount of the debt. |
|
(d) If the personal representative is unable to collect from |
|
the devisees an amount sufficient to pay the debt under Subsection |
|
(b), the representative shall, subject to Chapter 356, sell the |
|
property securing the debt. The representative shall: |
|
(1) use the sale proceeds to pay the debt and any |
|
expenses associated with the sale; and |
|
(2) distribute the remaining sale proceeds to each |
|
devisee in an amount equal to a fraction representing the devisee's |
|
ownership interest in the property, multiplied by the amount of the |
|
remaining sale proceeds. |
|
(e) If the sale proceeds under Subsection (d) are |
|
insufficient to pay the debt and any expenses associated with the |
|
sale, the difference between the sale proceeds and the sum of the |
|
amount of the debt and the expenses associated with the sale shall |
|
be paid in the manner prescribed by Subsection (a). (Tex. Prob. |
|
Code, Secs. 306(c), (c-1).) |
|
Sec. 355.154. PREFERRED DEBT AND LIEN. When a claim for a |
|
debt is allowed and approved under Section 355.151(a)(2): |
|
(1) a further claim for the debt may not be made |
|
against other estate assets; |
|
(2) the debt thereafter remains a preferred lien |
|
against the property securing the debt; and |
|
(3) the property remains security for the debt in any |
|
distribution or sale of the property before final maturity and |
|
payment of the debt. (Tex. Prob. Code, Sec. 306(d).) |
|
Sec. 355.155. PAYMENT OF MATURITIES ON PREFERRED DEBT AND |
|
LIEN. (a) If property securing a debt for which a claim is allowed, |
|
approved, and fixed under Section 355.151(a)(2) is not sold or |
|
distributed within six months from the date letters testamentary or |
|
of administration are granted, the personal representative of the |
|
estate shall: |
|
(1) promptly pay all maturities that have accrued on |
|
the debt according to the terms of the debt; and |
|
(2) perform all the terms of any contract securing the |
|
debt. |
|
(b) If the personal representative defaults in payment or |
|
performance under Subsection (a), on application of the claim |
|
holder, the court shall: |
|
(1) require the sale of the property subject to the |
|
unmatured part of the debt and apply the proceeds of the sale to the |
|
liquidation of the maturities; |
|
(2) require the sale of the property free of the lien |
|
and apply the proceeds to the payment of the whole debt; or |
|
(3) authorize foreclosure by the claim holder as |
|
provided by this subchapter. (Tex. Prob. Code, Sec. 306(e).) |
|
Sec. 355.156. AFFIDAVIT REQUIRED FOR FORECLOSURE. An |
|
application by a claim holder under Section 355.155(b)(3) to |
|
foreclose the claim holder's mortgage, lien, or security interest |
|
on property securing a claim allowed, approved, and fixed under |
|
Section 355.151(a)(2) must be supported by the claim holder's |
|
affidavit that: |
|
(1) describes the property or part of the property to |
|
be sold by foreclosure; |
|
(2) describes the amounts of the claim holder's |
|
outstanding debt; |
|
(3) describes the maturities that have accrued on the |
|
debt according to the terms of the debt; |
|
(4) describes any other debts secured by a mortgage, |
|
lien, or security interest against the property that are known by |
|
the claim holder; |
|
(5) contains a statement that the claim holder has no |
|
knowledge of the existence of any debt secured by the property other |
|
than those described by the application; and |
|
(6) requests permission for the claim holder to |
|
foreclose the claim holder's mortgage, lien, or security interest. |
|
(Tex. Prob. Code, Sec. 306(f).) |
|
Sec. 355.157. CITATION ON APPLICATION. (a) The clerk shall |
|
issue citation on the filing of an application by: |
|
(1) personal service to: |
|
(A) the personal representative; and |
|
(B) any person described by the application as |
|
having other debts secured by a mortgage, lien, or security |
|
interest against the property; and |
|
(2) posting to any other person interested in the |
|
estate. |
|
(b) A citation issued under Subsection (a) must require the |
|
person cited to appear and show cause why foreclosure should or |
|
should not be permitted. (Tex. Prob. Code, Sec. 306(g).) |
|
Sec. 355.158. HEARING ON APPLICATION. (a) The clerk shall |
|
immediately notify the judge when an application is filed. The |
|
judge shall schedule in writing a date for a hearing on the |
|
application. |
|
(b) The judge may, by entry on the docket or otherwise, |
|
continue a hearing on an application for a reasonable time to allow |
|
an interested person to obtain an appraisal or other evidence |
|
concerning the fair market value of the property that is the subject |
|
of the application. If the interested person requests an |
|
unreasonable time for a continuance, the interested person must |
|
show good cause for the continuance. |
|
(c) If the court finds at the hearing that there is a default |
|
in payment of maturities that have accrued on a debt described by |
|
Section 355.155(a) or performance under the contract securing the |
|
debt, the court shall: |
|
(1) require the sale of the property subject to the |
|
unmatured part of the debt and apply the proceeds of the sale to the |
|
liquidation of the maturities; |
|
(2) require the sale of the property free of the lien |
|
and apply the proceeds to the payment of the whole debt; or |
|
(3) authorize foreclosure by the claim holder as |
|
provided by Section 355.156. |
|
(d) A person interested in the estate may appeal an order |
|
issued under Subsection (c)(3). (Tex. Prob. Code, Secs. 306(h), |
|
(i)(1), (j).) |
|
Sec. 355.159. MANNER OF FORECLOSURE; MINIMUM PRICE. (a) |
|
When the court grants a claim holder the right of foreclosure at a |
|
hearing under Section 355.158, the court shall authorize the claim |
|
holder to foreclose the claim holder's mortgage, lien, or security |
|
interest: |
|
(1) in accordance with the provisions of the document |
|
creating the mortgage, lien, or security interest; or |
|
(2) in any other manner allowed by law. |
|
(b) Based on the evidence presented at the hearing, the |
|
court may set a minimum price for the property to be sold by |
|
foreclosure that does not exceed the fair market value of the |
|
property. If the court sets a minimum price, the property may not |
|
be sold at the foreclosure sale for a lower price. (Tex. Prob. |
|
Code, Sec. 306(i)(2).) |
|
Sec. 355.160. UNSUCCESSFUL FORECLOSURE; SUBSEQUENT |
|
APPLICATION. If property that is the subject of a foreclosure sale |
|
authorized and conducted under this subchapter is not sold because |
|
no bid at the sale met the minimum price set by the court, the claim |
|
holder may file a subsequent application for foreclosure under |
|
Section 355.155(b)(3). The court may eliminate or modify the |
|
minimum price requirement and grant permission for another |
|
foreclosure sale. (Tex. Prob. Code, Sec. 306(k).) |
|
[Sections 355.161-355.200 reserved for expansion] |
|
SUBCHAPTER E. CLAIMS INVOLVING PERSONAL REPRESENTATIVES |
|
Sec. 355.201. CLAIM BY PERSONAL REPRESENTATIVE. (a) The |
|
provisions of this chapter regarding the presentment of claims |
|
against a decedent's estate may not be construed to apply to any |
|
claim of a personal representative against the decedent. |
|
(b) A personal representative holding a claim against the |
|
decedent shall file the claim in the court granting the letters |
|
testamentary or of administration, verified by affidavit as |
|
required in other cases, within six months after the date the |
|
representative qualifies, or the claim is barred. |
|
(c) A claim by a personal representative that has been filed |
|
with the court within the required period shall be entered on the |
|
claim docket and acted on by the court in the same manner as in other |
|
cases. |
|
(d) A personal representative may appeal a judgment of the |
|
court acting on a claim under this section as in other cases. |
|
(e) The previous provisions regarding the presentment of |
|
claims may not be construed to apply to a claim: |
|
(1) of any heir or devisee who claims in that capacity; |
|
(2) that accrues against the estate after the granting |
|
of letters testamentary or of administration and for which the |
|
personal representative has contracted; or |
|
(3) for delinquent ad valorem taxes against a |
|
decedent's estate that is being administered in probate in: |
|
(A) a county other than the county in which the |
|
taxes were imposed; or |
|
(B) the same county in which the taxes were |
|
imposed, if the probate proceedings have been pending for more than |
|
four years. (Tex. Prob. Code, Sec. 317.) |
|
Sec. 355.202. CLAIMS AGAINST PERSONAL REPRESENTATIVES. (a) |
|
The naming of an executor in a will does not extinguish a just claim |
|
that the decedent had against the person named as executor. |
|
(b) If a personal representative is indebted to the |
|
decedent, the representative shall account for the debt in the same |
|
manner as if the debt were cash in the representative's possession. |
|
(c) Notwithstanding Subsection (b), a personal |
|
representative is required to account for the debt only from the |
|
date the debt becomes due if the debt was not due at the time the |
|
representative received letters testamentary or of administration. |
|
(Tex. Prob. Code, Sec. 316.) |
|
Sec. 355.203. PURCHASE OF CLAIM BY PERSONAL REPRESENTATIVE |
|
PROHIBITED. (a) It is unlawful, and cause for removal, for a |
|
personal representative, whether acting under appointment by will |
|
or court orders, to purchase a claim against the estate the |
|
representative represents for the representative's own use or any |
|
other purpose. |
|
(b) On written complaint by a person interested in the |
|
estate and on satisfactory proof of a violation of Subsection (a), |
|
the court after citation and hearing: |
|
(1) shall enter an order canceling the claim described |
|
by Subsection (a); and |
|
(2) may remove the personal representative who is |
|
found to have violated Subsection (a). |
|
(c) No part of a claim canceled under Subsection (b) may be |
|
paid out of the estate. (Tex. Prob. Code, Sec. 324.) |
|
CHAPTER 356. SALE OF ESTATE PROPERTY |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 356.001. COURT ORDER AUTHORIZING SALE |
|
Sec. 356.002. SALE AUTHORIZED BY WILL |
|
[Sections 356.003-356.050 reserved for expansion] |
|
SUBCHAPTER B. CERTAIN ESTATE PROPERTY REQUIRED TO BE SOLD |
|
|
Sec. |
356.051. SALE OF CERTAIN PERSONAL PROPERTY |
|
REQUIRED |
|
[Sections 356.052-356.100 reserved for expansion] |
|
SUBCHAPTER C. |
SALE OF PERSONAL PROPERTY |
|
Sec. 356.101. ORDER FOR SALE |
|
Sec. 356.102. REQUIREMENTS FOR APPLICATION AND ORDER |
|
Sec. 356.103. SALE AT PUBLIC AUCTION |
|
Sec. 356.104. SALE ON CREDIT |
|
Sec. 356.105. REPORT; EVIDENCE OF TITLE |
|
[Sections 356.106-356.150 reserved for expansion] |
|
SUBCHAPTER D. |
SALE OF LIVESTOCK |
|
Sec. 356.151. AUTHORITY FOR SALE |
|
Sec. 356.152. CONTENTS OF APPLICATION; HEARING |
|
Sec. 356.153. GRANT OF APPLICATION |
|
Sec. 356.154. REPORT; PASSAGE OF TITLE |
|
Sec. 356.155. COMMISSION MERCHANT FEES |
|
[Sections 356.156-356.200 reserved for expansion] |
|
SUBCHAPTER E. |
SALE OF MORTGAGED PROPERTY |
|
Sec. |
356.201. APPLICATION FOR SALE OF MORTGAGED |
|
PROPERTY |
|
Sec. 356.202. CITATION |
|
Sec. 356.203. ORDER |
|
[Sections 356.204-356.250 reserved for expansion] |
|
SUBCHAPTER F. SALE OF REAL PROPERTY: APPLICATION AND ORDER FOR |
SALE |
|
SALE |
|
|
Sec. 356.251. APPLICATION FOR ORDER OF SALE |
|
Sec. 356.252. CONTENTS OF APPLICATION |
|
Sec. 356.253. CITATION |
|
Sec. 356.254. OPPOSITION TO SALE |
|
Sec. |
356.255. HEARING ON APPLICATION AND ANY |
|
OPPOSITION |
|
Sec. 356.256. ORDER |
|
Sec. 356.257. SALE FOR PAYMENT OF DEBTS |
|
[Sections 356.258-356.300 reserved for expansion] |
|
SUBCHAPTER G. |
SALE OF REAL ESTATE: TERMS OF SALE |
|
Sec. 356.301. PERMISSIBLE TERMS |
|
Sec. 356.302. SALE ON CREDIT |
|
[Sections 356.303-356.350 reserved for expansion] |
|
SUBCHAPTER H. RECONVEYANCE OF REAL ESTATE FOLLOWING FORECLOSURE |
|
|
Sec. 356.351. APPLICABILITY OF SUBCHAPTER |
|
Sec. 356.352. APPLICATION AND ORDER FOR RECONVEYANCE |
|
Sec. 356.353. EXCHANGE FOR BONDS |
|
[Sections 356.354-356.400 reserved for expansion] |
|
SUBCHAPTER I. SALE OF REAL ESTATE: PUBLIC SALE |
|
|
Sec. 356.401. REQUIRED NOTICE |
|
Sec. 356.402. METHOD OF SALE |
|
Sec. 356.403. TIME AND PLACE OF SALE |
|
Sec. 356.404. CONTINUANCE OF SALE |
|
Sec. 356.405. FAILURE OF BIDDER TO COMPLY |
|
[Sections 356.406-356.450 reserved for expansion] |
|
SUBCHAPTER J. SALE OF REAL ESTATE: PRIVATE SALE |
|
|
Sec. 356.451. MANNER OF SALE |
|
[Sections 356.452-356.500 reserved for expansion] |
|
SUBCHAPTER K. SALE OF EASEMENT OR RIGHT-OF-WAY |
|
|
Sec. 356.501. AUTHORIZATION |
|
Sec. 356.502. PROCEDURE |
|
[Sections 356.503-356.550 reserved for expansion] |
|
SUBCHAPTER L. CONFIRMATION OF SALE OF REAL PROPERTY AND |
|
|
TRANSFER OF TITLE |
|
|
Sec. 356.551. REPORT |
|
Sec. 356.552. ACTION OF COURT ON REPORT OF SALE |
|
Sec. |
356.553. CONFIRMATION OF SALE WHEN BOND NOT |
|
REQUIRED |
|
Sec. 356.554. SUFFICIENCY OF BOND |
|
Sec. |
356.555. INCREASED OR ADDITIONAL BOND NOT |
|
REQUIRED |
|
Sec. 356.556. CONFIRMATION OR DISAPPROVAL ORDER |
|
Sec. 356.557. DEED |
|
Sec. 356.558. DELIVERY OF DEED |
|
Sec. 356.559. DAMAGES; REMOVAL |
|
[Sections 356.560-356.600 reserved for expansion] |
|
SUBCHAPTER M. PROCEDURE ON FAILURE TO APPLY FOR SALE |
|
|
Sec. 356.601. FAILURE TO APPLY FOR SALE |
|
Sec. 356.602. COURT ORDER |
|
[Sections 356.603-356.650 reserved for expansion] |
|
SUBCHAPTER N. PURCHASE OF PROPERTY BY PERSONAL REPRESENTATIVE |
|
|
Sec. 356.651. GENERAL PROHIBITION ON PURCHASE |
|
Sec. 356.652. EXCEPTION: AUTHORIZATION IN WILL |
|
Sec. 356.653. EXCEPTION: EXECUTORY CONTRACT |
|
Sec. 356.654. EXCEPTION: BEST INTEREST OF ESTATE |
|
Sec. 356.655. PURCHASE IN VIOLATION OF SUBCHAPTER |
|
CHAPTER 356. SALE OF ESTATE PROPERTY |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 356.001. COURT ORDER AUTHORIZING SALE. (a) Except as |
|
provided by this chapter, estate property may not be sold without a |
|
court order authorizing the sale. |
|
(b) Except as otherwise specially provided by this chapter, |
|
the court may order estate property to be sold for cash or on |
|
credit, at public auction or privately, as the court considers most |
|
advantageous to the estate. (Tex. Prob. Code, Sec. 331.) |
|
Sec. 356.002. SALE AUTHORIZED BY WILL. (a) Subject to |
|
Subsection (b), if a will authorizes the executor to sell the |
|
testator's property: |
|
(1) a court order is not required to authorize the |
|
executor to sell the property; and |
|
(2) the executor may sell the property: |
|
(A) at public auction or privately as the |
|
executor considers to be in the best interest of the estate; and |
|
(B) for cash or on credit terms determined by the |
|
executor. |
|
(b) Any particular directions in the testator's will |
|
regarding the sale of estate property shall be followed unless the |
|
directions have been annulled or suspended by court order. (Tex. |
|
Prob. Code, Sec. 332.) |
|
[Sections 356.003-356.050 reserved for expansion] |
|
SUBCHAPTER B. CERTAIN ESTATE PROPERTY REQUIRED TO BE SOLD |
|
Sec. 356.051. SALE OF CERTAIN PERSONAL PROPERTY REQUIRED. |
|
(a) After approval of the inventory, appraisement, and list of |
|
claims, the personal representative of an estate promptly shall |
|
apply for a court order to sell, at public auction or privately, for |
|
cash or on credit for a term not to exceed six months, all estate |
|
property that is liable to perish, waste, or deteriorate in value, |
|
or that will be an expense or disadvantage to the estate if kept. |
|
(b) The following may not be included in a sale under |
|
Subsection (a): |
|
(1) property exempt from forced sale; |
|
(2) property that is the subject of a specific legacy; |
|
and |
|
(3) personal property necessary to carry on a farm, |
|
ranch, factory, or other business that is thought best to operate. |
|
(c) In determining whether to order the sale of an asset |
|
under Subsection (a), the court shall consider: |
|
(1) the personal representative's duty to take care of |
|
and manage the estate in the manner a person of ordinary prudence, |
|
discretion, and intelligence would manage the person's own affairs; |
|
and |
|
(2) whether the asset constitutes an asset that a |
|
trustee is authorized to invest under Subchapter F, Chapter 113, |
|
Property Code, or Chapter 117, Property Code. (Tex. Prob. Code, |
|
Sec. 333.) |
|
[Sections 356.052-356.100 reserved for expansion] |
|
SUBCHAPTER C. SALE OF PERSONAL PROPERTY |
|
Sec. 356.101. ORDER FOR SALE. (a) Except as provided by |
|
Subsection (b), on the application of the personal representative |
|
of an estate or any interested person, the court may order the sale |
|
of any estate personal property not required to be sold by Section |
|
356.051, including livestock or growing or harvested crops, if the |
|
court finds that the sale of the property is in the estate's best |
|
interest to pay, from the proceeds of the sale: |
|
(1) expenses of administration; |
|
(2) the decedent's funeral expenses; |
|
(3) expenses of the decedent's last illness; |
|
(4) allowances; or |
|
(5) claims against the estate. |
|
(b) The court may not order under this section the sale of |
|
exempt property or property that is the subject of a specific |
|
legacy. (Tex. Prob. Code, Sec. 334 (part).) |
|
Sec. 356.102. REQUIREMENTS FOR APPLICATION AND ORDER. To |
|
the extent possible, an application and order for the sale of |
|
personal property under Section 356.101 must conform to the |
|
requirements under Subchapter F for an application and order for |
|
the sale of real estate. (Tex. Prob. Code, Sec. 334 (part).) |
|
Sec. 356.103. SALE AT PUBLIC AUCTION. Unless the court |
|
directs otherwise, before estate personal property is sold at |
|
public auction, notice must be: |
|
(1) issued by the personal representative of the |
|
estate; and |
|
(2) posted in the manner notice is posted for original |
|
proceedings in probate. (Tex. Prob. Code, Sec. 336.) |
|
Sec. 356.104. SALE ON CREDIT. (a) Estate personal property |
|
may not be sold on credit at public auction for a term of more than |
|
six months from the date of sale. |
|
(b) Estate personal property purchased on credit at public |
|
auction may not be delivered to the purchaser until the purchaser |
|
gives a note for the amount due, with good and solvent personal |
|
security. The requirement that security be provided may be waived |
|
if the property will not be delivered until the note, with interest, |
|
has been paid. (Tex. Prob. Code, Sec. 337.) |
|
Sec. 356.105. REPORT; EVIDENCE OF TITLE. (a) A sale of |
|
estate personal property shall be reported to the court. The laws |
|
regulating the confirmation or disapproval of a sale of real estate |
|
apply to the sale, except that a conveyance is not required. |
|
(b) The court's order confirming the sale of estate personal |
|
property: |
|
(1) vests the right and title of the intestate's estate |
|
in the purchaser who has complied with the terms of the sale; and |
|
(2) is prima facie evidence that all requirements of |
|
the law in making the sale have been met. |
|
(c) The personal representative of an estate, on request, |
|
may issue a bill of sale without warranty to the purchaser of estate |
|
personal property as evidence of title. The purchaser shall pay for |
|
the issuance of the bill of sale. (Tex. Prob. Code, Sec. 339.) |
|
[Sections 356.106-356.150 reserved for expansion] |
|
SUBCHAPTER D. SALE OF LIVESTOCK |
|
Sec. 356.151. AUTHORITY FOR SALE. (a) A personal |
|
representative of an estate who has possession of livestock and who |
|
considers selling the livestock to be necessary or to the estate's |
|
advantage may, in addition to any other method provided by law for |
|
the sale of personal property, obtain authority from the court in |
|
which the estate is pending to sell the livestock through: |
|
(1) a bonded livestock commission merchant; or |
|
(2) a bonded livestock auction commission merchant. |
|
(b) The court may authorize the sale of livestock in the |
|
manner described by Subsection (a) on a written and sworn |
|
application by the personal representative or any person interested |
|
in the estate. (Tex. Prob. Code, Sec. 335 (part).) |
|
Sec. 356.152. CONTENTS OF APPLICATION; HEARING. (a) An |
|
application under Section 356.151 must: |
|
(1) describe the livestock sought to be sold; and |
|
(2) state why granting the application is necessary or |
|
to the estate's advantage. |
|
(b) The court: |
|
(1) shall promptly consider the application; and |
|
(2) may hear evidence for or against the application, |
|
with or without notice, as the facts warrant. (Tex. Prob. Code, |
|
Sec. 335 (part).) |
|
Sec. 356.153. GRANT OF APPLICATION. If the court grants an |
|
application for the sale of livestock, the court shall: |
|
(1) enter an order to that effect; and |
|
(2) authorize delivery of the livestock to a |
|
commission merchant described by Section 356.151 for sale in the |
|
regular course of business. (Tex. Prob. Code, Sec. 335 (part).) |
|
Sec. 356.154. REPORT; PASSAGE OF TITLE. The personal |
|
representative of the estate shall promptly report to the court a |
|
sale of livestock authorized under this subchapter, supported by a |
|
verified copy of the commission merchant's account of the sale. A |
|
court order of confirmation is not required to pass title to the |
|
purchaser of the livestock. (Tex. Prob. Code, Sec. 335 (part).) |
|
Sec. 356.155. COMMISSION MERCHANT FEES. A commission |
|
merchant shall be paid the merchant's usual and customary charges, |
|
not to exceed five percent of the sale price, for the sale of |
|
livestock authorized under this subchapter. (Tex. Prob. Code, Sec. |
|
335 (part).) |
|
[Sections 356.156-356.200 reserved for expansion] |
|
SUBCHAPTER E. SALE OF MORTGAGED PROPERTY |
|
Sec. 356.201. APPLICATION FOR SALE OF MORTGAGED PROPERTY. |
|
A creditor holding a claim that is secured by a valid mortgage or |
|
other lien and that has been allowed and approved or established by |
|
suit may, by filing a written application, obtain from the court in |
|
which the estate is pending an order requiring that the property |
|
securing the lien, or as much of the property as is necessary to |
|
satisfy the claim, be sold. (Tex. Prob. Code, Sec. 338 (part).) |
|
Sec. 356.202. CITATION. On the filing of an application |
|
under Section 356.201, the clerk shall issue a citation requiring |
|
the personal representative of the estate to appear and show cause |
|
why the application should not be granted. (Tex. Prob. Code, Sec. |
|
338 (part).) |
|
Sec. 356.203. ORDER. The court may order the lien securing |
|
the claim of a creditor who files an application under Section |
|
356.201 to be discharged out of general estate assets or refinanced |
|
if the discharge or refinance of the lien appears to the court to be |
|
advisable. Otherwise, the court shall grant the application and |
|
order that the property securing the lien be sold at public or |
|
private sale, as considered best, as in an ordinary sale of real |
|
estate. (Tex. Prob. Code, Sec. 338 (part).) |
|
[Sections 356.204-356.250 reserved for expansion] |
|
SUBCHAPTER F. SALE OF REAL PROPERTY: APPLICATION AND ORDER FOR |
|
SALE |
|
Sec. 356.251. APPLICATION FOR ORDER OF SALE. An |
|
application may be made to the court for an order to sell estate |
|
property if the sale appears necessary or advisable to: |
|
(1) pay: |
|
(A) expenses of administration; |
|
(B) the decedent's funeral expenses; |
|
(C) expenses of the decedent's last illness; |
|
(D) allowances; and |
|
(E) claims against the estate; or |
|
(2) dispose of an interest in estate real property if |
|
selling the interest is considered in the estate's best interest. |
|
(Tex. Prob. Code, Sec. 341.) |
|
Sec. 356.252. CONTENTS OF APPLICATION. An application for |
|
the sale of real estate must: |
|
(1) be in writing; |
|
(2) describe: |
|
(A) the real estate sought to be sold; or |
|
(B) the interest in or part of the real estate |
|
sought to be sold; and |
|
(3) be accompanied by an exhibit, verified by an |
|
affidavit, showing: |
|
(A) the estate's condition fully and in detail; |
|
(B) the charges and claims that have been |
|
approved or established by suit or that have been rejected and may |
|
yet be established; |
|
(C) the amount of each claim described by |
|
Paragraph (B); |
|
(D) the estate property remaining on hand that is |
|
liable for the payment of the claims described by Paragraph (B); and |
|
(E) any other facts showing the necessity for or |
|
advisability of the sale. (Tex. Prob. Code, Sec. 342.) |
|
Sec. 356.253. CITATION. On the filing of an application and |
|
exhibit described by Section 356.252, the clerk shall issue a |
|
citation to all persons interested in the estate. The citation |
|
must: |
|
(1) describe the real estate or the interest in or part |
|
of the real estate sought to be sold; |
|
(2) inform the interested persons of the right under |
|
Section 356.254 to file an opposition to the sale during the period |
|
prescribed by the court in the citation; and |
|
(3) be served by posting. (Tex. Prob. Code, Sec. 344.) |
|
Sec. 356.254. OPPOSITION TO SALE. During the period |
|
prescribed in a citation issued under Section 356.253, any person |
|
interested in the estate may file: |
|
(1) a written opposition to the sale; or |
|
(2) an application for the sale of other estate |
|
property. (Tex. Prob. Code, Sec. 345.) |
|
Sec. 356.255. HEARING ON APPLICATION AND ANY OPPOSITION. |
|
(a) The clerk of the court in which an application for an order of |
|
sale is filed shall immediately call to the judge's attention any |
|
opposition to the sale that is filed during the period prescribed in |
|
the citation issued under Section 356.253. The court shall hold a |
|
hearing on the application if an opposition to the sale is filed |
|
during the period prescribed 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 prescribed in the citation. The court may |
|
determine that a hearing on the application is necessary even if no |
|
opposition is filed during that period. |
|
(c) If the court orders a hearing under Subsection (a) or |
|
(b), the court shall designate in writing a date and time for the |
|
hearing on the application and any opposition, together with the |
|
evidence pertaining to the application and any opposition. The |
|
clerk shall issue a notice of the date and time of the hearing to the |
|
applicant and to each person who files an opposition to the sale, if |
|
applicable. |
|
(d) The judge, by entries on the docket, may continue a |
|
hearing held under this section from time to time until the judge is |
|
satisfied concerning the application. (Tex. Prob. Code, Sec. 345A.) |
|
Sec. 356.256. ORDER. (a) The court shall order the sale of |
|
the estate property described in an application for an order of sale |
|
if the court is satisfied that the sale is necessary or advisable. |
|
Otherwise, the court may deny the application and, if the court |
|
considers it best, may order the sale of other estate property the |
|
sale of which would be more advantageous to the estate. |
|
(b) An order for the sale of real estate under this section |
|
must specify: |
|
(1) the property to be sold, including a description |
|
that identifies that property; |
|
(2) whether the property is to be sold at public |
|
auction or private sale and, if at public auction, the time and |
|
place of the sale; |
|
(3) the necessity or advisability of, and the purpose |
|
of, the sale; |
|
(4) except in a case in which a personal |
|
representative was not required to give a general bond, that the |
|
court, after examining the general bond given by the |
|
representative, finds that: |
|
(A) the bond is sufficient as required by law; or |
|
(B) the bond is insufficient; |
|
(5) if the court finds that the general bond is |
|
insufficient under Subdivision (4)(B), the amount of the necessary |
|
or increased bond, as applicable; |
|
(6) that the sale is to be made and the report returned |
|
in accordance with law; and |
|
(7) the terms of the sale. (Tex. Prob. Code, Sec. |
|
346.) |
|
Sec. 356.257. SALE FOR PAYMENT OF DEBTS. Estate real |
|
property selected to be sold for the payment of expenses or claims |
|
must be that property the sale of which the court considers most |
|
advantageous to the estate. (Tex. Prob. Code, Sec. 340.) |
|
[Sections 356.258-356.300 reserved for expansion] |
|
SUBCHAPTER G. SALE OF REAL ESTATE: TERMS OF SALE |
|
Sec. 356.301. PERMISSIBLE TERMS. Real estate of an estate |
|
may be sold for cash, part cash and part credit, or the equity in |
|
land securing an indebtedness may be sold subject to the |
|
indebtedness, or with an assumption of the indebtedness, at public |
|
or private sale, as appears to the court to be in the estate's best |
|
interest. (Tex. Prob. Code, Sec. 348(a) (part).) |
|
Sec. 356.302. SALE ON CREDIT. (a) The cash payment for |
|
real estate of an estate sold partly on credit may not be less than |
|
one-fifth of the purchase price. The purchaser shall execute a note |
|
for the deferred payments, payable in monthly, quarterly, |
|
semiannual, or annual installments, in amounts that appear to the |
|
court to be in the estate's best interest. The note must bear |
|
interest from the date at a rate of not less than four percent per |
|
year, payable as provided in the note. |
|
(b) A note executed by a purchaser under Subsection (a) must |
|
be secured by a vendor's lien retained in the deed and in the note on |
|
the property sold, and be further secured by a deed of trust on the |
|
property sold, with the usual provisions for foreclosure and sale |
|
on failure to make the payments provided in the deed and the note. |
|
(c) At the election of the holder of a note executed by a |
|
purchaser under Subsection (a), default in the payment of |
|
principal, interest, or any part of the principal or interest, when |
|
due matures the entire debt. (Tex. Prob. Code, Sec. 348(a) (part).) |
|
[Sections 356.303-356.350 reserved for expansion] |
|
SUBCHAPTER H. RECONVEYANCE OF REAL ESTATE FOLLOWING FORECLOSURE |
|
Sec. 356.351. APPLICABILITY OF SUBCHAPTER. This subchapter |
|
applies only to real estate owned by an estate as a result of the |
|
foreclosure of a vendor's lien or mortgage belonging to the estate: |
|
(1) by a judicial sale; |
|
(2) by a foreclosure suit; |
|
(3) through a sale under a deed of trust; or |
|
(4) by acceptance of a deed in cancellation of a lien |
|
or mortgage owned by the estate. (Tex. Prob. Code, Sec. 348(b) |
|
(part).) |
|
Sec. 356.352. APPLICATION AND ORDER FOR RECONVEYANCE. On |
|
proper application and proof, the court may dispense with the |
|
requirements for a credit sale prescribed by Section 356.302 and |
|
order the reconveyance of foreclosed real estate to the former |
|
mortgage debtor or former owner if it appears to the court that: |
|
(1) an application to redeem the real estate has been |
|
made by the former owner to a corporation or agency created by an |
|
Act of the United States Congress or of this state in connection |
|
with legislation for the relief of owners of mortgaged or |
|
encumbered homes, farms, ranches, or other real estate; and |
|
(2) owning bonds of one of those federal or state |
|
corporations or agencies instead of the real estate would be in the |
|
estate's best interest. (Tex. Prob. Code, Sec. 348(b) (part).) |
|
Sec. 356.353. EXCHANGE FOR BONDS. (a) If a court orders |
|
the reconveyance of foreclosed real estate as provided by Section |
|
356.352, vendor's lien notes shall be reserved for the total amount |
|
of the indebtedness due or for the total amount of bonds that the |
|
corporation or agency to which the application to redeem the real |
|
estate was submitted as described by Section 356.352(1) is allowed |
|
to advance under the corporation's or agency's rules or |
|
regulations. |
|
(b) On obtaining the order for reconveyance, it shall be |
|
proper for the personal representative of the estate to indorse and |
|
assign the reserved vendor's lien notes over to any one of the |
|
corporations or agencies described by Section 356.352(1) in |
|
exchange for bonds of that corporation or agency. (Tex. Prob. Code, |
|
Sec. 348(b) (part).) |
|
[Sections 356.354-356.400 reserved for expansion] |
|
SUBCHAPTER I. SALE OF REAL ESTATE: PUBLIC SALE |
|
Sec. 356.401. REQUIRED NOTICE. (a) Except as otherwise |
|
provided by Section 356.403(c), the personal representative of an |
|
estate shall advertise a public sale of real estate of the estate by |
|
a notice published in the county in which the estate is pending, as |
|
provided by this title for publication of notices or citations. The |
|
notice must: |
|
(1) include a reference to the order of sale; |
|
(2) include the time, place, and required terms of |
|
sale; and |
|
(3) briefly describe the real estate to be sold. |
|
(b) The notice required by Subsection (a) is not required to |
|
contain field notes, but if the real estate to be sold is rural |
|
property, the notice must include: |
|
(1) the name of the original survey of the real estate; |
|
(2) the number of acres comprising the real estate; |
|
(3) the location of the real estate in the county; and |
|
(4) any name by which the real estate is generally |
|
known. (Tex. Prob. Code, Sec. 349(a).) |
|
Sec. 356.402. METHOD OF SALE. A public sale of real estate |
|
of an estate shall be made at public auction to the highest bidder. |
|
(Tex. Prob. Code, Sec. 349(b).) |
|
Sec. 356.403. TIME AND PLACE OF SALE. (a) Except as |
|
provided by Subsection (c), a public sale of real estate of an |
|
estate shall be made at: |
|
(1) the courthouse door in the county in which the |
|
proceedings are pending; or |
|
(2) another place in that county at which sales of real |
|
estate are specifically authorized to be made. |
|
(b) The sale must occur between 10 a.m. and 4 p.m. on the |
|
first Tuesday of the month after publication of notice has been |
|
completed. |
|
(c) If the court considers it advisable, the court may order |
|
the sale to be made in the county in which the real estate is |
|
located, in which event notice shall be published both in that |
|
county and in the county in which the proceedings are pending. |
|
(Tex. Prob. Code, Sec. 349(c).) |
|
Sec. 356.404. CONTINUANCE OF SALE. (a) A public sale of |
|
real estate of an estate that is not completed on the day advertised |
|
may be continued from day to day by an oral public announcement of |
|
the continuance made at the conclusion of the sale each day. |
|
(b) A continued sale must occur within the hours prescribed |
|
by Section 356.403(b). |
|
(c) The continuance of a sale under this section shall be |
|
shown in the report of the sale made to the court. (Tex. Prob. Code, |
|
Sec. 349(d).) |
|
Sec. 356.405. FAILURE OF BIDDER TO COMPLY. (a) If a person |
|
bids off real estate of the estate offered for sale at public |
|
auction and fails to comply with the terms of the sale, the property |
|
shall be readvertised and sold without any further order. |
|
(b) The person defaulting on a bid as described by |
|
Subsection (a) is liable for payment to the personal representative |
|
of the estate, for the estate's benefit, of: |
|
(1) 10 percent of the amount of the bid; and |
|
(2) the amount of any deficiency in price on the second |
|
sale. |
|
(c) The personal representative may recover the amounts |
|
under Subsection (b) by suit in any court in the county in which the |
|
sale was made that has jurisdiction of the amount claimed. (Tex. |
|
Prob. Code, Sec. 349(e).) |
|
[Sections 356.406-356.450 reserved for expansion] |
|
SUBCHAPTER J. SALE OF REAL ESTATE: PRIVATE SALE |
|
Sec. 356.451. MANNER OF SALE. A private sale of real estate |
|
of the estate shall be made in the manner the court directs in the |
|
order of sale. Unless the court directs otherwise, additional |
|
advertising, notice, or citation concerning the sale is not |
|
required. (Tex. Prob. Code, Sec. 350.) |
|
[Sections 356.452-356.500 reserved for expansion] |
|
SUBCHAPTER K. SALE OF EASEMENT OR RIGHT-OF-WAY |
|
Sec. 356.501. AUTHORIZATION. Easements and rights-of-way |
|
on, under, and over the land of an estate that is being administered |
|
under court order may be sold and conveyed regardless of whether the |
|
sale proceeds are required to pay charges or claims against the |
|
estate or for other lawful purposes. (Tex. Prob. Code, Sec. 351 |
|
(part).) |
|
Sec. 356.502. PROCEDURE. The procedure for the sale of an |
|
easement or right-of-way authorized under Section 356.501 is the |
|
same as the procedure provided by law for a sale of estate real |
|
property at private sale. (Tex. Prob. Code, Sec. 351 (part).) |
|
[Sections 356.503-356.550 reserved for expansion] |
|
SUBCHAPTER L. CONFIRMATION OF SALE OF REAL PROPERTY AND |
|
TRANSFER OF TITLE |
|
Sec. 356.551. REPORT. A sale of estate real property shall |
|
be reported to the court ordering the sale not later than the 30th |
|
day after the date the sale is made. The report must: |
|
(1) be sworn to, in writing, and filed with the clerk; |
|
(2) include: |
|
(A) the date of the order of sale; |
|
(B) a description of the property sold; |
|
(C) the time and place of sale; |
|
(D) the purchaser's name; |
|
(E) the amount for which each parcel of property |
|
or interest in property was sold; |
|
(F) the terms of the sale; |
|
(G) whether the sale was made at public auction |
|
or privately; and |
|
(H) whether the purchaser is ready to comply with |
|
the order of sale; and |
|
(3) be noted on the probate docket. (Tex. Prob. Code, |
|
Sec. 353.) |
|
Sec. 356.552. ACTION OF COURT ON REPORT OF SALE. After the |
|
expiration of five days from the date a report of sale is filed |
|
under Section 356.551, the court shall: |
|
(1) inquire into the manner in which the sale was made; |
|
(2) hear evidence in support of or against the report; |
|
and |
|
(3) determine the sufficiency or insufficiency of the |
|
personal representative's general bond, if any has been required |
|
and given. (Tex. Prob. Code, Sec. 355 (part).) |
|
Sec. 356.553. CONFIRMATION OF SALE WHEN BOND NOT REQUIRED. |
|
If the personal representative of an estate is not required by this |
|
title to give a general bond, the court may confirm the sale of |
|
estate real property in the manner provided by Section 356.556(a) |
|
if the court finds that the sale is satisfactory and made in |
|
accordance with law. (Tex. Prob. Code, Sec. 354 (part).) |
|
Sec. 356.554. SUFFICIENCY OF BOND. (a) If the personal |
|
representative of an estate is required by this title to give a |
|
general bond, before the court confirms any sale of real estate, the |
|
court shall determine whether the bond is sufficient to protect the |
|
estate after the sale proceeds are received. |
|
(b) If the court finds that the general bond is sufficient, |
|
the court may confirm the sale as provided by Section 356.556(a). |
|
(c) If the court finds that the general bond is |
|
insufficient, the court may not confirm the sale until the general |
|
bond is increased to the amount required by the court, or an |
|
additional bond is given, and approved by the court. |
|
(d) An increase in the amount of the general bond, or the |
|
additional bond, as applicable under Subsection (c), must be equal |
|
to the sum of: |
|
(1) the amount for which the real estate is sold; and |
|
(2) any additional amount the court finds necessary |
|
and sets for the estate's protection. (Tex. Prob. Code, Sec. 354 |
|
(part).) |
|
Sec. 356.555. INCREASED OR ADDITIONAL BOND NOT REQUIRED. |
|
Notwithstanding Sections 356.554(c) and (d), if the real estate |
|
sold is encumbered by a lien to secure a claim against the estate |
|
and is sold to the owner or holder of the secured claim in full |
|
payment, liquidation, and satisfaction of the claim, an increased |
|
general bond or additional bond may not be required except for the |
|
amount of any cash paid to the personal representative of the estate |
|
in excess of the amount necessary to pay, liquidate, and satisfy the |
|
claim in full. (Tex. Prob. Code, Sec. 354 (part).) |
|
Sec. 356.556. CONFIRMATION OR DISAPPROVAL ORDER. (a) If |
|
the court is satisfied that a sale reported under Section 356.551 |
|
was for a fair price, properly made, and in conformity with law, and |
|
the court has approved any increased or additional bond that the |
|
court found necessary to protect the estate, the court shall enter |
|
an order: |
|
(1) confirming the sale; |
|
(2) showing conformity with this chapter; |
|
(3) detailing the terms of the sale; and |
|
(4) authorizing the personal representative to convey |
|
the property on the purchaser's compliance with the terms of the |
|
sale. |
|
(b) If the court is not satisfied that the sale was for a |
|
fair price, properly made, and in conformity with law, the court |
|
shall enter an order setting aside the sale and ordering a new sale |
|
to be made, if necessary. |
|
(c) The court's action in confirming or disapproving a |
|
report of a sale has the effect of a final judgment. Any person |
|
interested in the estate or in the sale is entitled to have an order |
|
entered under this section reviewed as in other final judgments in |
|
probate proceedings. (Tex. Prob. Code, Sec. 355 (part).) |
|
Sec. 356.557. DEED. Real estate of an estate that is sold |
|
shall be conveyed by a proper deed that refers to and identifies the |
|
court order confirming the sale. The deed: |
|
(1) vests in the purchaser all right and title of the |
|
estate to, and all interest of the estate in, the property; and |
|
(2) is prima facie evidence that the sale has met all |
|
applicable requirements of the law. (Tex. Prob. Code, Sec. 356.) |
|
Sec. 356.558. DELIVERY OF DEED. (a) After the court has |
|
confirmed a sale and the purchaser has complied with the terms of |
|
the sale, the personal representative of the estate shall promptly |
|
execute and deliver to the purchaser a proper deed conveying the |
|
property. |
|
(b) If the sale is made partly on credit: |
|
(1) the vendor's lien securing one or more purchase |
|
money notes must be expressly retained in the deed and may not be |
|
waived; and |
|
(2) before actual delivery of the deed to the |
|
purchaser, the purchaser shall execute and deliver to the personal |
|
representative of the estate one or more vendor's lien notes, with |
|
or without personal sureties as ordered by the court, and a deed of |
|
trust or mortgage on the property as additional security for the |
|
payment of the notes. |
|
(c) On completion of the transaction, the personal |
|
representative of the estate shall promptly file or cause to be |
|
filed and recorded the deed of trust or mortgage in the appropriate |
|
records in the county in which the land is located. (Tex. Prob. |
|
Code, Sec. 357.) |
|
Sec. 356.559. DAMAGES; REMOVAL. (a) If the personal |
|
representative of an estate neglects to comply with Section |
|
356.558, including to file the deed of trust securing a lien in the |
|
proper county, the representative and the sureties on the |
|
representative's bond shall, after complaint and citation, be held |
|
liable for the use of the estate and for all damages resulting from |
|
the representative's neglect, and the court may remove the |
|
representative. |
|
(b) Damages under this section may be recovered in any court |
|
of competent jurisdiction. (Tex. Prob. Code, Sec. 358.) |
|
[Sections 356.560-356.600 reserved for expansion] |
|
SUBCHAPTER M. PROCEDURE ON FAILURE TO APPLY FOR SALE |
|
Sec. 356.601. FAILURE TO APPLY FOR SALE. If the personal |
|
representative of an estate neglects to apply for an order to sell |
|
sufficient estate property to pay charges and claims against the |
|
estate that have been allowed and approved or established by suit, |
|
any interested person, on written application, may have the |
|
representative cited to appear and make a full exhibit of the |
|
estate's condition and show cause why a sale of the property should |
|
not be ordered. (Tex. Prob. Code, Sec. 347 (part).) |
|
Sec. 356.602. COURT ORDER. On hearing an application under |
|
Section 356.601, if the court is satisfied that a sale of estate |
|
property is necessary or advisable to satisfy the charges and |
|
claims described by Section 356.601, the court shall enter an order |
|
of sale as provided by Section 356.256. (Tex. Prob. Code, Sec. 347 |
|
(part).) |
|
[Sections 356.603-356.650 reserved for expansion] |
|
SUBCHAPTER N. PURCHASE OF PROPERTY BY PERSONAL REPRESENTATIVE |
|
Sec. 356.651. GENERAL PROHIBITION ON PURCHASE. Except as |
|
otherwise provided by this subchapter, the personal representative |
|
of an estate may not purchase, directly or indirectly, any estate |
|
property sold by the representative or any co-representative of the |
|
estate. (Tex. Prob. Code, Sec. 352(a).) |
|
Sec. 356.652. EXCEPTION: AUTHORIZATION IN WILL. A personal |
|
representative of an estate may purchase estate property if the |
|
representative was appointed in a will that: |
|
(1) has been admitted to probate; and |
|
(2) expressly authorizes the sale. (Tex. Prob. Code, |
|
Sec. 352(b).) |
|
Sec. 356.653. EXCEPTION: EXECUTORY CONTRACT. A personal |
|
representative of a decedent's estate may purchase estate property |
|
in compliance with the terms of a written executory contract signed |
|
by the decedent, including: |
|
(1) a contract for deed; |
|
(2) an earnest money contract; |
|
(3) a buy/sell agreement; and |
|
(4) a stock purchase or redemption agreement. (Tex. |
|
Prob. Code, Sec. 352(c).) |
|
Sec. 356.654. EXCEPTION: BEST INTEREST OF ESTATE. (a) |
|
Subject to Subsection (b), the personal representative of an |
|
estate, including an independent administrator, may purchase |
|
estate property on the court's determination that the sale is in the |
|
estate's best interest. |
|
(b) Before purchasing estate property as authorized by |
|
Subsection (a), the personal representative shall give notice of |
|
the purchase by certified mail, return receipt requested, unless |
|
the court requires another form of notice, to: |
|
(1) each distributee of the estate; and |
|
(2) each creditor whose claim remains unsettled after |
|
being presented within six months of the date letters testamentary |
|
or of administration are originally granted. |
|
(c) The court may require additional notice or allow for the |
|
waiver of the notice required for a sale made under this section. |
|
(Tex. Prob. Code, Sec. 352(d).) |
|
Sec. 356.655. PURCHASE IN VIOLATION OF SUBCHAPTER. (a) If |
|
a personal representative of an estate purchases estate property in |
|
violation of this subchapter, any person interested in the estate |
|
may file a written complaint with the court in which the proceedings |
|
are pending. |
|
(b) On service of citation on the personal representative on |
|
a complaint filed under Subsection (a) and after hearing and proof, |
|
the court shall: |
|
(1) declare the sale void; |
|
(2) set aside the sale; and |
|
(3) order the reconveyance of the property to the |
|
estate. |
|
(c) The court shall adjudge against the personal |
|
representative all costs of the sale, protest, and suit found |
|
necessary. (Tex. Prob. Code, Sec. 352(e).) |
|
CHAPTER 357. RENTING ESTATE PROPERTY |
|
|
SUBCHAPTER A. RENTAL AND RETURN OF ESTATE PROPERTY |
|
|
Sec. |
357.001. RENTING ESTATE PROPERTY WITHOUT COURT |
|
ORDER |
|
Sec. 357.002. RENTING ESTATE PROPERTY WITH COURT ORDER |
|
Sec. 357.003. ESTATE PROPERTY RENTED ON CREDIT |
|
Sec. 357.004. CONDITION OF RETURNED ESTATE PROPERTY |
|
Sec. 357.005. COMPLAINT FOR FAILURE TO RENT |
|
[Sections 357.006-357.050 reserved for expansion] |
|
SUBCHAPTER B. |
REPORT ON RENTED ESTATE PROPERTY |
|
Sec. 357.051. REPORTS CONCERNING RENTALS |
|
Sec. 357.052. COURT ACTION ON REPORT |
|
CHAPTER 357. RENTING ESTATE PROPERTY |
|
SUBCHAPTER A. RENTAL AND RETURN OF ESTATE PROPERTY |
|
Sec. 357.001. RENTING ESTATE PROPERTY WITHOUT COURT ORDER. |
|
(a) The personal representative of an estate, without a court |
|
order, may rent any of the estate property for one year or less, at |
|
public auction or privately, as is considered to be in the best |
|
interest of the estate. |
|
(b) On the sworn complaint of any person interested in the |
|
estate, the court shall require a personal representative who, |
|
without a court order, rents estate property to account to the |
|
estate for the reasonable value of the rent of the property, to be |
|
ascertained by the court on satisfactory evidence. (Tex. Prob. |
|
Code, Secs. 359, 360.) |
|
Sec. 357.002. RENTING ESTATE PROPERTY WITH COURT ORDER. |
|
(a) The personal representative of an estate may, if the |
|
representative prefers, and shall, if the proposed rental period is |
|
more than one year, file a written application with the court |
|
setting forth the property the representative seeks to rent. |
|
(b) If the court finds that granting an application filed |
|
under Subsection (a) is in the interest of the estate, the court |
|
shall issue an order that: |
|
(1) describes the property to be rented; and |
|
(2) states whether the property will be rented at |
|
public auction or privately, whether for cash or on credit, and if |
|
on credit, the extent of the credit and the period for which the |
|
property may be rented. |
|
(c) If, under Subsection (b), the court orders property to |
|
be rented at public auction, the court shall prescribe whether |
|
notice of the auction shall be published or posted. (Tex. Prob. |
|
Code, Sec. 361.) |
|
Sec. 357.003. ESTATE PROPERTY RENTED ON CREDIT. Possession |
|
of estate property rented on credit may not be delivered until the |
|
renter executes and delivers to the personal representative a note |
|
with good personal security for the amount of the rent. If the |
|
property is delivered without the representative receiving the |
|
required security, the representative and the sureties on the |
|
representative's bond are liable for the full amount of the rent. |
|
When a rental is payable in installments, in advance of the period |
|
to which the installments relate, this section does not apply. |
|
(Tex. Prob. Code, Sec. 363.) |
|
Sec. 357.004. CONDITION OF RETURNED ESTATE PROPERTY. (a) |
|
Estate property that is rented, with or without a court order, must |
|
be returned to the estate's possession in as good a condition, |
|
except for reasonable wear and tear, as when the property was |
|
rented. |
|
(b) The personal representative of an estate shall: |
|
(1) ensure that rented estate property is returned in |
|
the condition required by Subsection (a); |
|
(2) report to the court any damage to, or loss or |
|
destruction of, the property; and |
|
(3) ask the court for the authority to take any |
|
necessary action. |
|
(c) A personal representative who fails to act as required |
|
by this section and the sureties on the representative's bond are |
|
liable to the estate for any loss or damage suffered as a result of |
|
the representative's failure. (Tex. Prob. Code, Sec. 364.) |
|
Sec. 357.005. COMPLAINT FOR FAILURE TO RENT. (a) Any |
|
person interested in an estate may: |
|
(1) file a written and sworn complaint in the court in |
|
which the estate is pending; and |
|
(2) have the personal representative cited to appear |
|
and show cause why the representative did not rent any estate |
|
property. |
|
(b) The court, on hearing the complaint, shall issue an |
|
order that appears to be in the best interest of the estate. (Tex. |
|
Prob. Code, Sec. 362.) |
|
[Sections 357.006-357.050 reserved for expansion] |
|
SUBCHAPTER B. REPORT ON RENTED ESTATE PROPERTY |
|
Sec. 357.051. REPORTS CONCERNING RENTALS. (a) A personal |
|
representative of an estate who rents estate property with an |
|
appraised value of $3,000 or more shall, not later than the 30th day |
|
after the date the property is rented, file with the court a sworn |
|
and written report stating: |
|
(1) the property rented and the property's appraised |
|
value; |
|
(2) the date the property was rented and whether the |
|
rental occurred at public auction or privately; |
|
(3) the name of each person renting the property; |
|
(4) the rental amount; and |
|
(5) whether the rental was for cash or on credit and, |
|
if on credit, the length of time, the terms, and the security |
|
received for the credit. |
|
(b) A personal representative of an estate who rents estate |
|
property with an appraised value of less than $3,000 may report the |
|
rental in the next annual or final account that must be filed as |
|
required by law. (Tex. Prob. Code, Sec. 365.) |
|
Sec. 357.052. COURT ACTION ON REPORT. (a) At any time |
|
after the fifth day after the date the report of renting is filed, |
|
the court shall: |
|
(1) examine the report; and |
|
(2) by order approve and confirm the report if found |
|
just and reasonable. |
|
(b) If the court disapproves the report, the estate is not |
|
bound and the court may order another offering for rent of the |
|
property that is the subject of the report, in the same manner and |
|
subject to the provisions of this chapter. |
|
(c) If the court approves the report and it later appears |
|
that, by reason of any fault of the personal representative, the |
|
property was not rented for the property's reasonable value, the |
|
court shall have the representative and the sureties on the |
|
representative's bond appear and show cause why the reasonable |
|
value of the rent of the property should not be adjudged against the |
|
representative. (Tex. Prob. Code, Sec. 366.) |
|
CHAPTER 358. MATTERS RELATING TO MINERAL PROPERTIES |
|
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
|
Sec. 358.001. DEFINITIONS |
|
[Sections 358.002-358.050 reserved for expansion] |
|
SUBCHAPTER B. MINERAL LEASES AFTER PUBLIC NOTICE |
|
|
Sec. 358.051. AUTHORIZATION FOR LEASING OF MINERALS |
|
Sec. 358.052. LEASE APPLICATION |
|
Sec. |
358.053. SCHEDULING OF HEARING ON APPLICATION; |
|
CONTINUANCE |
|
Sec. 358.054. NOTICE OF HEARING ON APPLICATION |
|
Sec. |
358.055. REQUIREMENTS REGARDING ORDER AND NOTICE |
|
MANDATORY |
|
Sec. 358.056. HEARING ON APPLICATION; ORDER |
|
Sec. |
358.057. MAKING OF LEASE ON GRANTING OF |
|
APPLICATION |
|
Sec. 358.058. BOND REQUIREMENTS |
|
Sec. 358.059. TERM OF LEASE BINDING |
|
Sec. |
358.060. AMENDMENT OF LEASE REGARDING EFFECT OF |
|
SHUT-IN GAS WELL |
|
[Sections 358.061-358.100 reserved for expansion] |
|
SUBCHAPTER C. MINERAL LEASES AT PRIVATE SALE |
|
|
Sec. |
358.101. AUTHORIZATION FOR LEASING OF MINERALS AT |
|
PRIVATE SALE |
|
Sec. |
358.102. ACTION OF COURT IF PUBLIC ADVERTISING |
|
NOT REQUIRED |
|
[Sections 358.103-358.150 reserved for expansion] |
|
SUBCHAPTER D. POOLING OR UNITIZATION OF ROYALTIES OR MINERALS |
|
|
Sec. 358.151. AUTHORIZATION FOR POOLING OR UNITIZATION |
|
Sec. 358.152. POOLING OR UNITIZATION APPLICATION |
|
Sec. 358.153. NOTICE NOT REQUIRED |
|
Sec. 358.154. HEARING ON APPLICATION |
|
Sec. 358.155. ACTION OF COURT AND CONTENTS OF ORDER |
|
[Sections 358.156-358.200 reserved for expansion] |
|
SUBCHAPTER E. SPECIAL ANCILLARY INSTRUMENTS THAT MAY BE EXECUTED |
WITHOUT COURT ORDER |
|
WITHOUT COURT ORDER |
|
|
Sec. |
358.201. AUTHORIZATION FOR EXECUTION OF |
|
AGREEMENTS |
|
[Sections 358.202-358.250 reserved for expansion] |
|
SUBCHAPTER F. PROCEDURE IF PERSONAL REPRESENTATIVE OF ESTATE |
NEGLECTS TO APPLY FOR AUTHORITY |
|
NEGLECTS TO APPLY FOR AUTHORITY |
|
|
Sec. 358.251. APPLICATION TO SHOW CAUSE |
|
Sec. 358.252. HEARING ON APPLICATION |
|
Sec. 358.253. ORDER |
|
Sec. |
358.254. PROCEDURE TO BE FOLLOWED AFTER ENTRY OF |
|
ORDER |
|
CHAPTER 358. MATTERS RELATING TO MINERAL PROPERTIES |
|
SUBCHAPTER A. GENERAL PROVISIONS |
|
Sec. 358.001. DEFINITIONS. In this chapter: |
|
(1) "Gas" includes all liquid hydrocarbons in the |
|
gaseous phase in the reservoir. |
|
(2) "Land" and "interest in land" include minerals or |
|
an interest in minerals in place. |
|
(3) "Mineral development" includes exploration for, |
|
whether by geophysical or other means, drilling for, mining for, |
|
development of, operations in connection with, production of, and |
|
saving of oil, other liquid hydrocarbons, gas, gaseous elements, |
|
sulphur, metals, and all other minerals, whether solid or |
|
otherwise. |
|
(4) "Property" includes land, minerals in place, |
|
whether solid, liquid, or gaseous, and an interest of any kind in |
|
that property, including a royalty interest, owned by an estate. |
|
(Tex. Prob. Code, Sec. 367(a); New.) |
|
[Sections 358.002-358.050 reserved for expansion] |
|
SUBCHAPTER B. MINERAL LEASES AFTER PUBLIC NOTICE |
|
Sec. 358.051. AUTHORIZATION FOR LEASING OF MINERALS. (a) |
|
The court in which probate proceedings on a decedent's estate are |
|
pending may authorize the personal representative of the estate, |
|
appointed and qualified under the laws of this state and acting |
|
solely under court orders, to make, execute, and deliver a lease, |
|
with or without a unitization clause or pooling provision, |
|
providing for the exploration for and development and production of |
|
oil, other liquid hydrocarbons, gas, metals and other solid |
|
minerals, and other minerals, or any of those minerals in place, |
|
belonging to the estate. |
|
(b) A lease described by Subsection (a) must be made and |
|
entered into under and in conformity with this subchapter. (Tex. |
|
Prob. Code, Secs. 367(b), (c) (part).) |
|
Sec. 358.052. LEASE APPLICATION. (a) The personal |
|
representative of an estate shall file with the county clerk of the |
|
county in which the probate proceeding is pending a written |
|
application, addressed to the court or the judge of the court, for |
|
authority to lease estate property for mineral exploration and |
|
development, with or without a pooling provision or unitization |
|
clause. |
|
(b) The lease application must: |
|
(1) describe the property fully by reference to the |
|
amount of acreage, the survey name or number, or the abstract |
|
number, or by another method adequately identifying the property |
|
and the property's location in the county in which the property is |
|
situated; |
|
(2) specify the interest thought to be owned by the |
|
estate, if less than the whole, but requesting authority to include |
|
all of the interest owned by the estate, if that is the intention; |
|
and |
|
(3) set out the reasons the estate property described |
|
in the application should be leased. |
|
(c) The lease application is not required to set out or |
|
suggest: |
|
(1) the name of any proposed lessee; or |
|
(2) the terms, provisions, or form of any desired |
|
lease. (Tex. Prob. Code, Sec. 367(c) (part).) |
|
Sec. 358.053. SCHEDULING OF HEARING ON APPLICATION; |
|
CONTINUANCE. (a) Immediately after the filing of a lease |
|
application under Section 358.052, the county clerk shall call the |
|
filing of the application to the court's attention, and the judge |
|
shall promptly make and enter a brief order designating the time and |
|
place for hearing the application. |
|
(b) If the hearing is not held at the time originally |
|
designated by the court or by a timely continuance order entered, |
|
the hearing shall be continued automatically without further notice |
|
to the same time on the following day, other than Sundays and |
|
holidays on which the county courthouse is officially closed, and |
|
from day to day until the lease application is finally acted on and |
|
disposed of by court order. Notice of an automatic continuance is |
|
not required. (Tex. Prob. Code, Sec. 367(c) (part).) |
|
Sec. 358.054. NOTICE OF HEARING ON APPLICATION. (a) At |
|
least 10 days before the date set for the hearing on a lease |
|
application filed under Section 358.052, excluding the date of |
|
notice and the date set for the hearing, the personal |
|
representative shall give notice of the hearing by: |
|
(1) publishing the notice in one issue of a newspaper |
|
of general circulation in the county in which the proceeding is |
|
pending; or |
|
(2) if there is no newspaper described by Subdivision |
|
(1), posting the notice or having the notice posted. |
|
(b) If notice is published, the date of notice is the date |
|
printed on the newspaper. |
|
(c) The notice must: |
|
(1) be dated; |
|
(2) be directed to all persons interested in the |
|
estate; |
|
(3) state the date on which the lease application was |
|
filed; |
|
(4) describe briefly the property sought to be leased, |
|
specifying the fractional interest sought to be leased if less than |
|
the entire interest in the tract or tracts identified; and |
|
(5) state the time and place designated by the judge |
|
for the hearing. (Tex. Prob. Code, Sec. 367(c) (part).) |
|
Sec. 358.055. REQUIREMENTS REGARDING ORDER AND NOTICE |
|
MANDATORY. An order of the judge or court authorizing any act to be |
|
performed under a lease application filed under Section 358.052 is |
|
void in the absence of: |
|
(1) a written order originally designating a time and |
|
place for hearing; |
|
(2) a notice issued by the personal representative of |
|
the estate in compliance with the order described by Subdivision |
|
(1); and |
|
(3) proof of the publication or posting of the notice |
|
as required under Section 358.054. (Tex. Prob. Code, Sec. 367(c) |
|
(part).) |
|
Sec. 358.056. HEARING ON APPLICATION; ORDER. (a) At the |
|
time and place designated for the hearing under Section 358.053(a), |
|
or at the time to which the hearing is continued as provided by |
|
Section 358.053(b), the judge shall: |
|
(1) hear a lease application filed under Section |
|
358.052; and |
|
(2) require proof as to the necessity or advisability |
|
of leasing for mineral development the property described in the |
|
application and the notice. |
|
(b) The judge shall enter an order authorizing one or more |
|
leases affecting and covering the property or portions of property |
|
described in the application, with or without pooling provisions or |
|
unitization clauses, and with or without cash consideration if |
|
considered by the court to be in the best interest of the estate, if |
|
the judge is satisfied that: |
|
(1) the application is in proper form; |
|
(2) notice has been given in the manner and for the |
|
time required by law; |
|
(3) proof of necessity or advisability of leasing is |
|
sufficient; and |
|
(4) the application should be granted. |
|
(c) The order must contain: |
|
(1) the name of the lessee; |
|
(2) any actual cash consideration to be paid by the |
|
lessee; |
|
(3) a finding that the requirements of Subsection (b) |
|
have been satisfied; and |
|
(4) one of the following findings: |
|
(A) a finding that the personal representative is |
|
exempted by law from giving bond; or |
|
(B) if the representative is not exempted by law |
|
from giving bond, a finding as to whether the representative's |
|
general bond on file is sufficient to protect the personal property |
|
on hand, including any cash bonus to be paid. |
|
(d) If the court finds the general bond insufficient to meet |
|
the requirements of Subsection (c)(4)(B), the order must show the |
|
amount of increased or additional bond required to cover the |
|
deficiency. |
|
(e) A complete exhibit copy, either written or printed, of |
|
each authorized lease must be set out in the order or attached to |
|
the order and incorporated by reference and made part of the order. |
|
The exhibit copy must show: |
|
(1) the name of the lessee; |
|
(2) the date of the lease; |
|
(3) an adequate description of the property being |
|
leased; |
|
(4) any delay rental to be paid to defer commencement |
|
of operations; and |
|
(5) all other authorized terms and provisions. |
|
(f) If the date of a lease does not appear in the exhibit |
|
copy of the lease or in the order, the date of the order is |
|
considered for all purposes to be the date of the lease. |
|
(g) If the name or address of the depository bank for |
|
receiving rental is not shown in the exhibit copy of a lease, the |
|
estate's personal representative may insert that information, or |
|
cause that information to be inserted, in the lease at the time of |
|
the lease's execution or at any other time agreeable to the lessee |
|
or the lessee's successors or assignees. (Tex. Prob. Code, Sec. |
|
367(c) (part).) |
|
Sec. 358.057. MAKING OF LEASE ON GRANTING OF APPLICATION. |
|
(a) If the court grants an application as provided by Section |
|
358.056, the personal representative of the estate may make the |
|
lease or leases, as evidenced by the exhibit copies described by |
|
Section 358.056, in accordance with the order. |
|
(b) The lease or leases must be made not later than the 30th |
|
day after the date of the order unless an extension is granted by |
|
the court on sworn application showing good cause. |
|
(c) It is not necessary for the judge to make an order |
|
confirming the lease or leases. (Tex. Prob. Code, Sec. 367(c) |
|
(part).) |
|
Sec. 358.058. BOND REQUIREMENTS. (a) Unless the personal |
|
representative of the estate is not required to give a general bond, |
|
a lease for which a cash consideration is required, although |
|
ordered, executed, and delivered, is not valid: |
|
(1) unless the order authorizing the lease makes |
|
findings with respect to the general bond; and |
|
(2) if the general bond has been found insufficient, |
|
unless and until: |
|
(A) the bond has been increased or an additional |
|
bond given, as required by the order, with the sureties required by |
|
law; and |
|
(B) the increased bond or additional bond has |
|
been approved by the judge and filed with the clerk of the court in |
|
which the proceedings are pending. |
|
(b) If two or more leases of different land are authorized |
|
by the same order, the general bond must be increased, or additional |
|
bonds given, to cover all of the leases. (Tex. Prob. Code, Sec. |
|
367(c) (part).) |
|
Sec. 358.059. TERM OF LEASE BINDING. (a) A lease executed |
|
and delivered in compliance with this subchapter is valid and |
|
binding on the property or interest in property owned by the estate |
|
and covered by the lease for the full term provided by the lease, |
|
subject only to the lease's terms and conditions, even if the |
|
primary term extends beyond the date the estate is closed in |
|
accordance with law. |
|
(b) The authorized primary term of the lease may not exceed |
|
five years, subject to the lease terms and provisions extending the |
|
lease beyond the primary term by: |
|
(1) paying production; |
|
(2) bona fide drilling or reworking operations, |
|
whether in or on the same well or wells or an additional well or |
|
wells, without a cessation of operations of more than 60 |
|
consecutive days before production has been restored or obtained; |
|
or |
|
(3) a shut-in gas well. (Tex. Prob. Code, Sec. 367(c) |
|
(part).) |
|
Sec. 358.060. AMENDMENT OF LEASE REGARDING EFFECT OF |
|
SHUT-IN GAS WELL. (a) An oil, gas, and mineral lease executed by a |
|
personal representative under the former Texas Probate Code or this |
|
code may be amended by an instrument that provides that a shut-in |
|
gas well on the land covered by the lease or on land pooled with all |
|
or part of the land covered by the lease continues the lease in |
|
effect after the lease's five-year primary term. |
|
(b) The personal representative, with the approval of the |
|
court, shall execute the instrument according to the terms and |
|
conditions prescribed by the instrument. (Tex. Prob. Code, Sec. |
|
367(c) (part).) |
|
[Sections 358.061-358.100 reserved for expansion] |
|
SUBCHAPTER C. MINERAL LEASES AT PRIVATE SALE |
|
Sec. 358.101. AUTHORIZATION FOR LEASING OF MINERALS AT |
|
PRIVATE SALE. (a) Notwithstanding the mandatory requirements of |
|
Subchapter B for setting a time and place for hearing of a lease |
|
application filed under Section 358.052 and the issuance, service, |
|
and return of notice, the court may authorize the making of oil, |
|
gas, and mineral leases at private sale without public notice or |
|
advertising if, in the court's opinion, facts are set out in the |
|
application required by Subchapter B sufficient to show that it |
|
would be more advantageous to the estate that a lease be made |
|
privately and without compliance with those mandatory |
|
requirements. |
|
(b) Leases authorized by this section may include pooling |
|
provisions or unitization clauses as in other cases. (Tex. Prob. |
|
Code, Sec. 368(a).) |
|
Sec. 358.102. ACTION OF COURT IF PUBLIC ADVERTISING NOT |
|
REQUIRED. (a) At any time after the fifth day and before the 11th |
|
day after the filing date of an application to lease at private sale |
|
and without an order setting the hearing time and place, the court |
|
shall: |
|
(1) hear the application; |
|
(2) inquire into the manner in which the proposed |
|
lease has been or will be made; and |
|
(3) hear evidence for or against the application. |
|
(b) If satisfied that the lease has been or will be made for |
|
a fair and sufficient consideration and on fair terms and has been |
|
or will be properly made in conformity with law, the court shall |
|
enter an order authorizing the execution of the lease without the |
|
necessity of advertising, notice, or citation. The order must |
|
comply in all other respects with the requirements essential to the |
|
validity of mineral leases as set out in Subchapter B, as if |
|
advertising or notice were required. |
|
(c) The issuance of an order confirming a lease or leases |
|
made at private sale is not required, but such a lease is not valid |
|
until any increased or additional bond required by the court has |
|
been approved by the court and filed with the court clerk. (Tex. |
|
Prob. Code, Sec. 368(b).) |
|
[Sections 358.103-358.150 reserved for expansion] |
|
SUBCHAPTER D. POOLING OR UNITIZATION OF ROYALTIES OR MINERALS |
|
Sec. 358.151. AUTHORIZATION FOR POOLING OR UNITIZATION. |
|
(a) If an existing lease or leases on property owned by an estate |
|
being administered do not adequately provide for pooling or |
|
unitization, the court in which the proceedings are pending may, in |
|
the manner provided by this subchapter, authorize the commitment of |
|
royalty or mineral interests in oil, liquid hydrocarbons, gas, |
|
gaseous elements, and other minerals, or any one or more of them, |
|
owned by the estate, to agreements that provide for the operation of |
|
areas as a pool or unit for the exploration for, development of, and |
|
production of all of those minerals, if the court finds that: |
|
(1) the pool or unit to which the agreement relates |
|
will be operated in a manner that protects correlative rights or |
|
prevents the physical or economic waste of oil, liquid |
|
hydrocarbons, gas, gaseous elements, or other minerals subject to |
|
the agreement; and |
|
(2) it is in the best interest of the estate to execute |
|
the agreement. |
|
(b) An agreement authorized under Subsection (a) may, among |
|
other things, provide that: |
|
(1) operations incident to the drilling of or |
|
production from a well on any portion of a pool or unit shall be |
|
considered for all purposes to be the conduct of operations on or |
|
production from each separately owned tract in the pool or unit; |
|
(2) any lease covering any part of the area committed |
|
to a pool or unit continues in effect in its entirety as long as: |
|
(A) oil, gas, or other minerals subject to the |
|
agreement are produced in paying quantities from any part of the |
|
pooled or unitized area; |
|
(B) operations are conducted as provided in the |
|
lease on any part of the pooled or unitized area; or |
|
(C) there is a shut-in gas well on any part of the |
|
pooled or unitized area, if the presence of the shut-in gas well is |
|
a ground for continuation of the lease under the terms of the lease; |
|
(3) the production allocated by the agreement to each |
|
tract included in a pool or unit shall, when produced, be considered |
|
for all purposes to have been produced from the tract by a well |
|
drilled on the tract; |
|
(4) the royalties provided for on production from any |
|
tract or portion of a tract within the pool or unit shall be paid |
|
only on that portion of the production allocated to the tract in |
|
accordance with the agreement; |
|
(5) the dry gas, before or after extraction of |
|
hydrocarbons, may be returned to a formation underlying any land or |
|
leases committed to the agreement, and that royalties are not |
|
required to be paid on the gas returned; and |
|
(6) gas obtained from other sources or other land may |
|
be injected into a formation underlying any land or leases |
|
committed to the agreement, and that royalties are not required to |
|
be paid on the gas injected when the gas is produced from the unit. |
|
(Tex. Prob. Code, Secs. 369(a), (b) (part).) |
|
Sec. 358.152. POOLING OR UNITIZATION APPLICATION. (a) The |
|
personal representative of an estate shall file with the county |
|
clerk of the county in which the probate proceeding is pending a |
|
written application for authority to: |
|
(1) enter into pooling or unitization agreements |
|
supplementing, amending, or otherwise relating to any existing |
|
lease or leases covering property owned by the estate; or |
|
(2) commit royalties or other interests in minerals, |
|
whether or not subject to a lease, to a pooling or unitization |
|
agreement. |
|
(b) The pooling or unitization application must also: |
|
(1) sufficiently describe the property as required in |
|
an original lease application; |
|
(2) describe briefly any lease or leases to which the |
|
interest of the estate is subject; and |
|
(3) set out the reasons the proposed agreement |
|
concerning the property should be entered into. |
|
(c) A copy of the proposed agreement must be attached to the |
|
application and made a part of the application by reference. |
|
(d) The agreement may not be recorded in the minutes. |
|
(e) Immediately after the pooling or unitization |
|
application is filed, the clerk shall call the application to the |
|
judge's attention. (Tex. Prob. Code, Sec. 369(b) (part).) |
|
Sec. 358.153. NOTICE NOT REQUIRED. Notice by advertising, |
|
citation, or otherwise of the filing of a pooling or unitization |
|
application under Section 358.152 is not required. (Tex. Prob. |
|
Code, Sec. 369(b) (part).) |
|
Sec. 358.154. HEARING ON APPLICATION. (a) The judge may |
|
hold a hearing on a pooling or unitization application filed under |
|
Section 358.152 at any time agreeable to the parties to the proposed |
|
agreement. |
|
(b) The judge shall hear evidence and determine to the |
|
judge's satisfaction whether it is in the best interest of the |
|
estate that the proposed agreement be authorized. |
|
(c) The hearing may be continued from day to day and from |
|
time to time as the court finds necessary. (Tex. Prob. Code, Sec. |
|
369(b) (part).) |
|
Sec. 358.155. ACTION OF COURT AND CONTENTS OF ORDER. (a) |
|
The court shall enter an order setting out the court's findings and |
|
authorizing execution of the proposed pooling or unitization |
|
agreement, with or without payment of cash consideration according |
|
to the agreement, if the court finds that: |
|
(1) the pool or unit to which the agreement relates |
|
will be operated in a manner that protects correlative rights or |
|
prevents the physical or economic waste of oil, liquid |
|
hydrocarbons, gas, gaseous elements, or other minerals subject to |
|
the agreement; |
|
(2) it is in the best interest of the estate that the |
|
agreement be executed; and |
|
(3) the agreement conforms substantially with the |
|
permissible provisions of Section 358.151. |
|
(b) If cash consideration is to be paid for the agreement, |
|
the court shall also make findings as to the necessity of increased |
|
or additional bond, as in the making of leases on payment of the |
|
cash bonus for the lease. Such an agreement is not valid until any |
|
required increased or additional bond has been approved by the |
|
judge and filed with the clerk. |
|
(c) If the effective date of the agreement is not stipulated |
|
in the agreement, the effective date of the agreement is the date of |
|
the court's order. (Tex. Prob. Code, Sec. 369(b) (part).) |
|
[Sections 358.156-358.200 reserved for expansion] |
|
SUBCHAPTER E. SPECIAL ANCILLARY INSTRUMENTS THAT MAY BE EXECUTED |
|
WITHOUT COURT ORDER |
|
Sec. 358.201. AUTHORIZATION FOR EXECUTION OF AGREEMENTS. |
|
As to any mineral lease or pooling or unitization agreement, |
|
executed on behalf of an estate before January 1, 1956, or on or |
|
after that date under the provisions of the former Texas Probate |
|
Code or this code, or executed by a former owner of land, minerals, |
|
or royalty affected by the lease or agreement, the personal |
|
representative of the estate being administered may, without |
|
further court order and without consideration, execute: |
|
(1) division orders; |
|
(2) transfer orders; |
|
(3) instruments of correction; |
|
(4) instruments designating depository banks for the |
|
receipt of delay rentals or shut-in gas well royalty to accrue or |
|
become payable under the terms of the lease; and |
|
(5) similar instruments relating to the lease or |
|
agreement and the property covered by the lease or agreement. (Tex. |
|
Prob. Code, Sec. 370.) |
|
[Sections 358.202-358.250 reserved for expansion] |
|
SUBCHAPTER F. PROCEDURE IF PERSONAL REPRESENTATIVE OF ESTATE |
|
NEGLECTS TO APPLY FOR AUTHORITY |
|
Sec. 358.251. APPLICATION TO SHOW CAUSE. If the personal |
|
representative of an estate neglects to apply for authority to |
|
subject estate property to a lease for mineral development, |
|
pooling, or unitization, or to commit royalty or another interest |
|
in minerals to pooling or unitization, any person interested in the |
|
estate may, on written application filed with the county clerk, |
|
have the representative cited to show cause why it is not in the |
|
best interest of the estate to make such a lease or enter into such |
|
an agreement. (Tex. Prob. Code, Sec. 371 (part).) |
|
Sec. 358.252. HEARING ON APPLICATION. (a) The county clerk |
|
shall immediately call the filing of an application under Section |
|
358.251 to the attention of the judge of the court in which the |
|
probate proceedings are pending. |
|
(b) The judge shall set a time and place for a hearing on the |
|
application, and the personal representative of the estate shall be |
|
cited to appear and show cause why the execution of a lease or |
|
agreement described by Section 358.251 should not be ordered. |
|
(Tex. Prob. Code, Sec. 371 (part).) |
|
Sec. 358.253. ORDER. On a hearing conducted under Section |
|
358.252, if satisfied from the evidence that it would be in the best |
|
interest of the estate, the court shall enter an order requiring the |
|
personal representative promptly to file an application to subject |
|
the estate property to a lease for mineral development, with or |
|
without pooling or unitization provisions, or to commit royalty or |
|
other minerals to pooling or unitization, as appropriate. (Tex. |
|
Prob. Code, Sec. 371 (part).) |
|
Sec. 358.254. PROCEDURE TO BE FOLLOWED AFTER ENTRY OF |
|
ORDER. After entry of an order under Section 358.253, the procedure |
|
prescribed with respect to an original lease application, or with |
|
respect to an original application for authority to commit royalty |
|
or minerals to pooling or unitization, whichever is appropriate, |
|
shall be followed. (Tex. Prob. Code, Sec. 371 (part).) |
|
CHAPTER 359. |
ANNUAL ACCOUNT AND OTHER EXHIBITS AND REPORTS |
|
SUBCHAPTER A. |
ANNUAL ACCOUNT AND OTHER EXHIBITS |
|
Sec. 359.001. ACCOUNT OF ESTATE REQUIRED |
|
Sec. |
359.002. ANNUAL ACCOUNT REQUIRED UNTIL ESTATE |
|
CLOSED |
|
Sec. |
359.003. SUPPORTING VOUCHERS AND OTHER DOCUMENTS |
|
ATTACHED TO ACCOUNT |
|
Sec. |
359.004. METHOD OF PROOF FOR SECURITIES AND OTHER |
|
ASSETS |
|
Sec. 359.005. VERIFICATION OF ACCOUNT |
|
Sec. 359.006. ADDITIONAL ACCOUNTS |
|
[Sections 359.007-359.050 reserved for expansion] |
|
SUBCHAPTER B. |
ACTION ON ANNUAL ACCOUNT |
|
Sec. |
359.051. FILING AND CONSIDERATION OF ANNUAL |
|
ACCOUNT |
|
Sec. 359.052. CORRECTION OF ANNUAL ACCOUNT |
|
Sec. 359.053. ORDER FOR PAYMENT OF CLAIMS IN FULL |
|
Sec. 359.054. ORDER FOR PRO RATA PAYMENT OF CLAIMS |
|
[Sections 359.055-359.100 reserved for expansion] |
|
SUBCHAPTER C. |
PENALTIES |
|
Sec. |
359.101. PENALTY FOR FAILURE TO FILE ANNUAL |
|
ACCOUNT |
|
Sec. |
359.102. PENALTY FOR FAILURE TO FILE EXHIBIT OR |
|
REPORT |
|
CHAPTER 359. ANNUAL ACCOUNT AND OTHER EXHIBITS AND REPORTS |
|
SUBCHAPTER A. ANNUAL ACCOUNT AND OTHER EXHIBITS |
|
Sec. 359.001. ACCOUNT OF ESTATE REQUIRED. (a) On the |
|
expiration of 12 months from the date a personal representative |
|
qualifies and receives letters testamentary or of administration to |
|
administer a decedent's estate under court order, the |
|
representative shall file with the court an account consisting of a |
|
written exhibit made under oath that lists all claims against the |
|
estate presented to the representative during the period covered by |
|
the account. The exhibit must specify: |
|
(1) the claims allowed by the representative; |
|
(2) the claims paid by the representative; |
|
(3) the claims rejected by the representative and the |
|
date the claims were rejected; and |
|
(4) the claims for which a lawsuit has been filed and |
|
the status of that lawsuit. |
|
(b) The account must: |
|
(1) show all property that has come to the personal |
|
representative's knowledge or into the representative's possession |
|
that was not previously listed or inventoried as estate property; |
|
(2) show any changes in estate property that have not |
|
been previously reported; |
|
(3) provide a complete account of receipts and |
|
disbursements for the period covered by the account, including the |
|
source and nature of the receipts and disbursements, with separate |
|
listings for principal and income receipts; |
|
(4) provide a complete, accurate, and detailed |
|
description of: |
|
(A) the property being administered; |
|
(B) the condition of the property and the use |
|
being made of the property; and |
|
(C) if rented, the terms on which and the price |
|
for which the property was rented; |
|
(5) show the cash balance on hand and the name and |
|
location of the depository where the balance is kept; |
|
(6) show any other cash held in a savings account or |
|
other manner that was deposited subject to court order and the name |
|
and location of the depository for that cash; |
|
(7) provide a detailed description of the personal |
|
property of the estate that shows how and where the property is held |
|
for safekeeping; |
|
(8) provide a statement that during the period covered |
|
by the account all tax returns due have been filed and all taxes due |
|
and owing have been paid, including: |
|
(A) a complete account of the amount of the |
|
taxes; |
|
(B) the date the taxes were paid; and |
|
(C) the governmental entity to which the taxes |
|
were paid; |
|
(9) if on the filing of the account a tax return due to |
|
be filed or any taxes due to be paid are delinquent, provide the |
|
reasons for, and include a description of, the delinquency; and |
|
(10) provide a statement that the representative has |
|
paid all the required bond premiums for the accounting period. |
|
(c) For bonds, notes, and other securities, the description |
|
required by Subsection (b)(7) must include: |
|
(1) the names of the obligor and obligee or, if payable |
|
to bearer, a statement that the bond, note, or other security is |
|
payable to bearer; |
|
(2) the date of issue and maturity; |
|
(3) the interest rate; |
|
(4) the serial number or other identifying numbers; |
|
(5) the manner in which the property is secured; and |
|
(6) other information necessary to fully identify the |
|
bond, note, or other security. (Tex. Prob. Code, Sec. 399(a).) |
|
Sec. 359.002. ANNUAL ACCOUNT REQUIRED UNTIL ESTATE CLOSED. |
|
(a) Each personal representative of the estate of a decedent shall |
|
continue to file an annual account conforming to the essential |
|
requirements of Section 359.001 regarding changes in the estate |
|
assets occurring since the date the most recent previous account |
|
was filed. |
|
(b) The annual account must be filed in a manner that allows |
|
the court or an interested person to ascertain the true condition of |
|
the estate, with respect to money, securities, and other property, |
|
by adding to the balances forwarded from the most recent previous |
|
account the amounts received during the period covered by the |
|
account and subtracting the disbursements made during that period. |
|
(c) The description of property sufficiently described in |
|
an inventory or previous account may be made in the annual account |
|
by reference to that description. (Tex. Prob. Code, Sec. 399(b).) |
|
Sec. 359.003. SUPPORTING VOUCHERS AND OTHER DOCUMENTS |
|
ATTACHED TO ACCOUNT. (a) The personal representative of an estate |
|
shall attach to each annual account: |
|
(1) a voucher for each item of credit claimed in the |
|
account or, to support the item in the absence of the voucher, other |
|
evidence satisfactory to the court; |
|
(2) an official letter from the bank or other |
|
depository where the estate money on hand is deposited that shows |
|
the amounts in general or special deposits; and |
|
(3) proof of the existence and possession of: |
|
(A) securities owned by the estate or shown by |
|
the account; and |
|
(B) other assets held by a depository subject to |
|
court order. |
|
(b) An original voucher submitted to the court may on |
|
application be returned to the personal representative after |
|
approval of the account. |
|
(c) The court may require: |
|
(1) additional evidence of the existence and custody |
|
of the securities and other personal property as the court |
|
considers proper; and |
|
(2) the personal representative at any time to exhibit |
|
the securities and other personal property to the court or another |
|
person designated by the court at the place where the securities and |
|
other personal property are held for safekeeping. (Tex. Prob. |
|
Code, Sec. 399(c) (part).) |
|
Sec. 359.004. METHOD OF PROOF FOR SECURITIES AND OTHER |
|
ASSETS. (a) The proof required by Section 359.003(a)(3) must be by: |
|
(1) an official letter from the bank or other |
|
depository where the securities or other assets are held for |
|
safekeeping, and if the depository is the personal representative, |
|
the official letter must be signed by a representative of the |
|
depository other than the one verifying the account; |
|
(2) a certificate of an authorized representative of a |
|
corporation that is surety on the personal representative's bonds; |
|
(3) a certificate of the clerk or a deputy clerk of a |
|
court of record in this state; or |
|
(4) an affidavit of any other reputable person |
|
designated by the court on request of the personal representative |
|
or other interested party. |
|
(b) The certificate or affidavit described by Subsection |
|
(a) must: |
|
(1) state that the affiant has examined the assets |
|
that the personal representative exhibited to the affiant as assets |
|
of the estate; |
|
(2) describe the assets by reference to the account or |
|
in another manner that sufficiently identifies the assets |
|
exhibited; and |
|
(3) state the time and the place the assets were |
|
exhibited. |
|
(c) Instead of attaching a certificate or an affidavit, the |
|
personal representative may exhibit the securities to the judge, |
|
who shall endorse on the account, or include in the judge's order |
|
with respect to the account, a statement that the securities shown |
|
in the account as on hand were exhibited to the judge and that the |
|
securities were the same as those shown in the account, or note any |
|
variance. |
|
(d) If the securities are exhibited at a location other than |
|
where the securities are deposited for safekeeping, that exhibit is |
|
at the personal representative's own expense and risk. (Tex. Prob. |
|
Code, Sec. 399(c) (part).) |
|
Sec. 359.005. VERIFICATION OF ACCOUNT. The personal |
|
representative shall attach to the annual account the |
|
representative's affidavit that the account contains a correct and |
|
complete statement of the matters to which it relates. (Tex. Prob. |
|
Code, Sec. 399(d).) |
|
Sec. 359.006. ADDITIONAL ACCOUNTS. (a) At any time after |
|
the expiration of 15 months from the date original letters |
|
testamentary or of administration are granted to an executor or |
|
administrator, an interested person may file a written complaint in |
|
the court in which the estate is pending to have the representative |
|
cited to appear and make a written exhibit under oath that sets |
|
forth fully, in connection with previous exhibits, the condition of |
|
the estate. |
|
(b) If it appears to the court, from the exhibit or other |
|
evidence, that the executor or administrator has estate funds in |
|
the representative's possession that are subject to distribution |
|
among the creditors of the estate, the court shall order the funds |
|
to be paid out to the creditors in accordance with this title. |
|
(c) A personal representative may voluntarily present to |
|
the court the exhibit described by Subsection (a). If the |
|
representative has any estate funds in the representative's |
|
possession that are subject to distribution among the creditors of |
|
the estate, the court shall issue an order similar to the order |
|
entered under Subsection (b). (Tex. Prob. Code, Sec. 402.) |
|
[Sections 359.007-359.050 reserved for expansion] |
|
SUBCHAPTER B. ACTION ON ANNUAL ACCOUNT |
|
Sec. 359.051. FILING AND CONSIDERATION OF ANNUAL ACCOUNT. |
|
(a) The personal representative of an estate shall file an annual |
|
account with the county clerk. The county clerk shall promptly note |
|
the filing on the judge's docket. |
|
(b) At any time after the account has remained on file for 10 |
|
days following the date the account is filed, the judge shall |
|
consider the account and may continue the hearing on the account |
|
until fully advised on all account items. |
|
(c) The court may not approve the account unless possession |
|
of cash, listed securities, or other assets held in safekeeping or |
|
on deposit under court order has been proven as required by law. |
|
(Tex. Prob. Code, Secs. 401(a), (b), (c), (d).) |
|
Sec. 359.052. CORRECTION OF ANNUAL ACCOUNT. (a) If the |
|
court finds an annual account is incorrect, the account must be |
|
corrected. |
|
(b) The court by order shall approve an annual account that |
|
is corrected to the satisfaction of the court and shall act with |
|
respect to unpaid claims in accordance with Sections 359.053 and |
|
359.054. (Tex. Prob. Code, Sec. 401(e) (part).) |
|
Sec. 359.053. ORDER FOR PAYMENT OF CLAIMS IN FULL. After |
|
approval of an annual account as provided by Section 359.052, if it |
|
appears to the court from the exhibit or other evidence that the |
|
estate is wholly solvent and that the personal representative has |
|
in the representative's possession sufficient funds to pay every |
|
character of claims against the estate, the court shall order |
|
immediate payment of all claims allowed and approved or established |
|
by judgment. (Tex. Prob. Code, Sec. 401(e) (part).) |
|
Sec. 359.054. ORDER FOR PRO RATA PAYMENT OF CLAIMS. After |
|
approval of an annual account as provided by Section 359.052, if it |
|
appears to the court from the account or other evidence that the |
|
funds on hand are not sufficient to pay every character of claims |
|
against the estate or if the estate is insolvent and the personal |
|
representative has any funds on hand, the court shall order the |
|
funds to be applied: |
|
(1) first to the payment of any unpaid claims having a |
|
preference in the order of their priority; and |
|
(2) then to the pro rata payment of the other claims |
|
allowed and approved or established by final judgment, considering: |
|
(A) claims that were presented before the first |
|
anniversary of the date administration was granted; and |
|
(B) claims that are in litigation or on which a |
|
lawsuit may be filed. (Tex. Prob. Code, Sec. 401(e) (part).) |
|
[Sections 359.055-359.100 reserved for expansion] |
|
SUBCHAPTER C. PENALTIES |
|
Sec. 359.101. PENALTY FOR FAILURE TO FILE ANNUAL ACCOUNT. |
|
(a) If the personal representative of an estate does not file an |
|
annual account required by Section 359.001 or 359.002, any person |
|
interested in the estate on written complaint, or the court on the |
|
court's own motion, may have the representative cited to file the |
|
account and show cause for the failure. |
|
(b) If the personal representative does not file the account |
|
after being cited or does not show good cause for the failure, the |
|
court on hearing may: |
|
(1) revoke the representative's letters testamentary |
|
or of administration; and |
|
(2) fine the representative in an amount not to exceed |
|
$500. |
|
(c) The personal representative and the representative's |
|
sureties are liable for any fine imposed and for all damages and |
|
costs sustained by the representative's failure. The fine, |
|
damages, and costs may be recovered in any court of competent |
|
jurisdiction. (Tex. Prob. Code, Sec. 400.) |
|
Sec. 359.102. PENALTY FOR FAILURE TO FILE EXHIBIT OR |
|
REPORT. (a) If a personal representative does not file an exhibit |
|
or report required by this title, any person interested in the |
|
estate on written complaint filed with the court clerk may have the |
|
representative cited to appear and show cause why the |
|
representative should not file the exhibit or report. |
|
(b) On hearing, the court may: |
|
(1) order the personal representative to file the |
|
exhibit or report; and |
|
(2) unless good cause is shown for the failure, revoke |
|
the representative's letters testamentary or of administration and |
|
fine the representative in an amount not to exceed $1,000. (Tex. |
|
Prob. Code, Sec. 403.) |
|
CHAPTER 360. PARTITION AND DISTRIBUTION OF ESTATE |
|
|
SUBCHAPTER A. APPLICATION FOR PARTITION AND DISTRIBUTION |
|
|
Sec. 360.001. GENERAL APPLICATION |
|
Sec. 360.002. APPLICATION FOR PARTIAL DISTRIBUTION |
|
[Sections 360.003-360.050 reserved for expansion] |
|
SUBCHAPTER B. CITATION |
|
|
Sec. 360.051. CITATION OF INTERESTED PERSONS |
|
Sec. 360.052. CITATION OF EXECUTOR OR ADMINISTRATOR |
|
[Sections 360.053-360.100 reserved for expansion] |
|
SUBCHAPTER C. PROCEEDINGS; EXPENSES |
|
|
Sec. 360.101. HEARING ON APPLICATION |
|
Sec. 360.102. COURT DECREE |
|
Sec. 360.103. EXPENSES OF PARTITION |
|
[Sections 360.104-360.150 reserved for expansion] |
|
SUBCHAPTER D. PARTITION AND DISTRIBUTION IF ESTATE PROPERTY IS |
|
|
CAPABLE OF DIVISION |
|
|
Sec. 360.151. APPOINTMENT OF COMMISSIONERS |
|
Sec. 360.152. WRIT OF PARTITION |
|
Sec. 360.153. PARTITION BY COMMISSIONERS |
|
Sec. 360.154. COMMISSIONERS' REPORT |
|
Sec. 360.155. COURT ACTION ON COMMISSIONERS' REPORT |
|
Sec. 360.156. DELIVERY OF PROPERTY |
|
Sec. 360.157. COMMISSIONERS' FEES |
|
[Sections 360.158-360.200 reserved for expansion] |
|
SUBCHAPTER E. PARTITION AND DISTRIBUTION IF ESTATE PROPERTY IS |
INCAPABLE OF DIVISION |
|
INCAPABLE OF DIVISION |
|
|
Sec. 360.201. COURT FINDING |
|
Sec. 360.202. SALE OF ESTATE PROPERTY |
|
Sec. |
360.203. APPLICABILITY OF PROVISIONS RELATING TO |
|
SALE OF REAL ESTATE |
|
[Sections 360.204-360.250 reserved for expansion] |
|
SUBCHAPTER F. CERTAIN TYPES OF ESTATE PROPERTY |
|
|
Sec. 360.251. ESTATE CONSISTING ONLY OF MONEY OR DEBTS |
|
Sec. |
360.252. ESTATE PROPERTY LOCATED IN ANOTHER |
|
COUNTY |
|
Sec. 360.253. COMMUNITY PROPERTY |
|
Sec. 360.254. JOINTLY OWNED PROPERTY |
|
[Sections 360.255-360.300 reserved for expansion] |
|
SUBCHAPTER G. ENFORCEMENT |
|
|
Sec. |
360.301. LIABILITY FOR FAILURE TO DELIVER ESTATE |
|
PROPERTY |
|
CHAPTER 360. PARTITION AND DISTRIBUTION OF ESTATE |
|
SUBCHAPTER A. APPLICATION FOR PARTITION AND DISTRIBUTION |
|
Sec. 360.001. GENERAL APPLICATION. (a) At any time after |
|
the first anniversary of the date original letters testamentary or |
|
of administration are granted, an executor, administrator, heir, or |
|
devisee of a decedent's estate, by written application filed in the |
|
court in which the estate is pending, may request the partition and |
|
distribution of the estate. |
|
(b) An application under Subsection (a) must state: |
|
(1) the decedent's name; |
|
(2) the name and residence of each person entitled to a |
|
share of the estate and whether the person is an adult or a minor; |
|
(3) if the applicant does not know a fact required by |
|
Subdivision (2); and |
|
(4) the reasons why the estate should be partitioned |
|
and distributed. (Tex. Prob. Code, Secs. 373(a), (b).) |
|
Sec. 360.002. APPLICATION FOR PARTIAL DISTRIBUTION. (a) |
|
At any time after original letters testamentary or of |
|
administration are granted and the inventory, appraisement, and |
|
list of claims are filed and approved, an executor, administrator, |
|
heir, or devisee of a decedent's estate, by written application |
|
filed in the court in which the estate is pending, may request a |
|
distribution of any portion of the estate. |
|
(b) All interested parties, including known creditors, must |
|
be personally cited as in other distributions. |
|
(c) Except as provided by Subsection (d), the court, on |
|
proper citation and hearing, may distribute any portion of the |
|
estate the court considers advisable. |
|
(d) If a distribution is to be made to one or more heirs or |
|
devisees, but not to all heirs or devisees, the court shall require |
|
a refunding bond in an amount determined by the court to be filed |
|
with the court, unless a written waiver of the bond requirement is |
|
filed with the court by all interested parties. On approving the |
|
bond, if required, the court shall order the distribution of the |
|
relevant portion of the estate. |
|
(e) This section applies to corpus as well as income, |
|
notwithstanding any other provision of this title. (Tex. Prob. |
|
Code, Sec. 373(c).) |
|
[Sections 360.003-360.050 reserved for expansion] |
|
SUBCHAPTER B. CITATION |
|
Sec. 360.051. CITATION OF INTERESTED PERSONS. (a) On the |
|
filing of the application, the clerk shall issue a citation that: |
|
(1) states: |
|
(A) the decedent's name; and |
|
(B) the date the court will hear the application; |
|
and |
|
(2) requires all persons interested in the estate to |
|
appear and show cause why the estate should not be partitioned and |
|
distributed. |
|
(b) A citation under this section must be: |
|
(1) personally served on each person residing in the |
|
state who is entitled to a share of the estate and whose address is |
|
known; and |
|
(2) served by publication on any person entitled to a |
|
share of the estate: |
|
(A) whose identity or address is not known; |
|
(B) who is not a resident of this state; or |
|
(C) who is a resident of this state but is absent |
|
from this state. (Tex. Prob. Code, Sec. 374.) |
|
Sec. 360.052. CITATION OF EXECUTOR OR ADMINISTRATOR. When |
|
a person other than the executor or administrator applies for |
|
partition and distribution, the executor or administrator must also |
|
be cited to appear and answer the application and file in court a |
|
verified exhibit and account of the condition of the estate, as in |
|
the case of a final settlement. (Tex. Prob. Code, Sec. 375.) |
|
[Sections 360.053-360.100 reserved for expansion] |
|
SUBCHAPTER C. PROCEEDINGS; EXPENSES |
|
Sec. 360.101. HEARING ON APPLICATION. (a) At the hearing |
|
on an application for partition and distribution, the court shall |
|
determine: |
|
(1) the residue of the estate that is subject to |
|
partition and distribution; |
|
(2) the persons entitled by law to partition and |
|
distribution and those persons' respective shares; and |
|
(3) whether an advancement has been made to any of the |
|
persons described by Subdivision (2), and if so, the nature and |
|
value of the advancement. |
|
(b) For purposes of Subsection (a)(1), the residue of the |
|
estate is determined by deducting from the entire assets of the |
|
estate remaining on hand: |
|
(1) the amount of all debts and expenses that: |
|
(A) have been approved or established by judgment |
|
but not paid; or |
|
(B) may be established by judgment in the future; |
|
and |
|
(2) the probable future expenses of administration. |
|
(c) If an advancement described by Subsection (a)(3) has |
|
been made, the court shall require the advancement to be placed in |
|
hotchpotch as required by the law governing intestate succession. |
|
(Tex. Prob. Code, Sec. 377.) |
|
Sec. 360.102. COURT DECREE. If the court determines that |
|
the estate should be partitioned and distributed, the court shall |
|
enter a decree stating: |
|
(1) the name and address, if known, of each person |
|
entitled to a share of the estate, specifying: |
|
(A) which of those persons are known to be |
|
minors; |
|
(B) the name of the minors' guardian or guardian |
|
ad litem; and |
|
(C) the name of the attorney appointed to |
|
represent those persons who are unknown or who are not residents of |
|
this state; |
|
(2) the proportional part of the estate to which each |
|
person is entitled; |
|
(3) a full description of all the estate to be |
|
distributed; and |
|
(4) that the executor or administrator must retain |
|
possession of a sufficient amount of money or property to pay all |
|
debts, taxes, and expenses of administration and specifying the |
|
amount of money or the property to be retained. (Tex. Prob. Code, |
|
Sec. 378.) |
|
Sec. 360.103. EXPENSES OF PARTITION. (a) The distributees |
|
shall pay the expense of the estate's partition pro rata. |
|
(b) The portion of the estate allotted to a distributee is |
|
liable for the distributee's portion of the partition expense, and, |
|
if not paid, the court may order execution for the expense in the |
|
names of the persons entitled to payment of the expense. (Tex. |
|
Prob. Code, Sec. 387.) |
|
[Sections 360.104-360.150 reserved for expansion] |
|
SUBCHAPTER D. PARTITION AND DISTRIBUTION IF ESTATE PROPERTY IS |
|
CAPABLE OF DIVISION |
|
Sec. 360.151. APPOINTMENT OF COMMISSIONERS. If the estate |
|
does not consist entirely of money or debts due to the estate and |
|
the court has not previously determined that the estate is |
|
incapable of partition, the court shall appoint three or more |
|
discreet and disinterested persons as commissioners to make a |
|
partition and distribution of the estate. (Tex. Prob. Code, Sec. |
|
380(a).) |
|
Sec. 360.152. WRIT OF PARTITION. (a) When commissioners |
|
are appointed under Section 360.151, the clerk shall issue a writ of |
|
partition directed to the commissioners, commanding the |
|
commissioners to: |
|
(1) proceed promptly to make the partition and |
|
distribution in accordance with the court decree; and |
|
(2) return the writ, with the commissioners' |
|
proceedings under the writ, on a date stated in the writ. |
|
(b) A copy of the court decree must accompany the writ. |
|
(c) The writ must be served by: |
|
(1) delivering the writ and the accompanying copy of |
|
the court decree to one of the commissioners; and |
|
(2) notifying the other commissioners, verbally or |
|
otherwise, of the commissioners' appointment. |
|
(d) Service under Subsection (c) may be made by any person. |
|
(Tex. Prob. Code, Sec. 380(b).) |
|
Sec. 360.153. PARTITION BY COMMISSIONERS. (a) The |
|
commissioners shall make a fair, just, and impartial partition and |
|
distribution of the estate in the following order and manner: |
|
(1) if the real estate is capable of being divided |
|
without manifest injury to all or any of the distributees, the |
|
commissioners shall partition and distribute the land or other |
|
property by allotting to each distributee: |
|
(A) a share in each parcel; |
|
(B) shares in one or more parcels; or |
|
(C) one or more parcels separately, with or |
|
without the addition of a share of other parcels; |
|
(2) if the real estate is not capable of a fair, just, |
|
and equal division in kind, but may be made capable of a fair, just, |
|
and equal division in kind by allotting to one or more of the |
|
distributees a proportion of the money or other personal property |
|
to supply the deficiency, the commissioners may make, as nearly as |
|
possible, an equal division of the real estate and supply the |
|
deficiency of any share from the money or other personal property; |
|
and |
|
(3) the commissioners shall: |
|
(A) make a like division in kind, as nearly as |
|
possible, of the money and other personal property; and |
|
(B) determine by lot, among equal shares, to whom |
|
each share shall belong. |
|
(b) The commissioners shall allot the land or other property |
|
under Subsection (a)(1) in the manner described by that subsection |
|
that is most in the interest of the distributees. (Tex. Prob. Code, |
|
Sec. 380(c).) |
|
Sec. 360.154. COMMISSIONERS' REPORT. (a) After dividing |
|
all or any part of the estate, at least a majority of the |
|
commissioners shall make a written, sworn report to the court that: |
|
(1) states the property divided by the commissioners; |
|
and |
|
(2) describes in particular the property allotted to |
|
each distributee and the value of that property. |
|
(b) If real estate was divided, the report must also contain |
|
a general plat of the land with: |
|
(1) the division lines plainly set down; and |
|
(2) the number of acres in each share. (Tex. Prob. |
|
Code, Sec. 380(d).) |
|
Sec. 360.155. COURT ACTION ON COMMISSIONERS' REPORT. (a) |
|
On the return of a commissioners' report under Section 360.154, the |
|
court shall: |
|
(1) examine the report carefully; and |
|
(2) hear: |
|
(A) all exceptions and objections to the report; |
|
and |
|
(B) all evidence in favor of or against the |
|
report. |
|
(b) If the report is informal, the court shall have the |
|
informality corrected. |
|
(c) If the division appears to have been fairly made |
|
according to law and no valid exceptions are taken to the division, |
|
the court shall approve the division and enter a decree vesting |
|
title in the distributees of the distributees' respective shares or |
|
portions of the property as set apart to the distributees by the |
|
commissioners. |
|
(d) If the division does not appear to have been fairly made |
|
according to law or a valid exception is taken to the division, the |
|
court may: |
|
(1) set aside the report and division; and |
|
(2) order a new partition to be made. (Tex. Prob. |
|
Code, Sec. 380(e).) |
|
Sec. 360.156. DELIVERY OF PROPERTY. When the |
|
commissioners' report has been approved and ordered to be recorded, |
|
the court shall order the executor or administrator to deliver to |
|
the distributees on demand the distributees' respective shares of |
|
the estate, including all the title deeds and documents belonging |
|
to the distributees. (Tex. Prob. Code, Sec. 380(f).) |
|
Sec. 360.157. COMMISSIONERS' FEES. A commissioner who |
|
partitions and distributes an estate under this subchapter is |
|
entitled to $5 for each day the commissioner necessarily engages in |
|
performing the commissioner's duties, to be taxed and paid as other |
|
costs in cases of partition. (Tex. Prob. Code, Sec. 380(g).) |
|
[Sections 360.158-360.200 reserved for expansion] |
|
SUBCHAPTER E. PARTITION AND DISTRIBUTION IF ESTATE PROPERTY IS |
|
INCAPABLE OF DIVISION |
|
Sec. 360.201. COURT FINDING. If, in the court's opinion, |
|
all or part of an estate is not capable of a fair and equal partition |
|
and distribution, the court shall make a special written finding |
|
specifying the property incapable of division. (Tex. Prob. Code, |
|
Sec. 381(a).) |
|
Sec. 360.202. SALE OF ESTATE PROPERTY. (a) When the court |
|
has found that all or part of an estate is not capable of fair and |
|
equal division, the court shall order the sale of all estate |
|
property not capable of fair and equal division. |
|
(b) The sale must be made by the executor or administrator |
|
in the manner provided for the sale of real estate to satisfy estate |
|
debts. |
|
(c) The court shall distribute the proceeds collected from |
|
the sale to the persons entitled to the proceeds. |
|
(d) A distributee who buys property at the sale is required |
|
to pay or secure only the amount by which the distributee's bid |
|
exceeds the amount of the distributee's share of the property. |
|
(Tex. Prob. Code, Secs. 381(b), (c).) |
|
Sec. 360.203. APPLICABILITY OF PROVISIONS RELATING TO SALE |
|
OF REAL ESTATE. The provisions of this title relating to reports of |
|
sales of real estate, the giving of an increased general or |
|
additional bond on the sale of real estate, and the vesting of title |
|
to property sold by decree or by deed apply to sales made under this |
|
subchapter. (Tex. Prob. Code, Sec. 381(d).) |
|
[Sections 360.204-360.250 reserved for expansion] |
|
SUBCHAPTER F. CERTAIN TYPES OF ESTATE PROPERTY |
|
Sec. 360.251. ESTATE CONSISTING ONLY OF MONEY OR DEBTS. If |
|
the estate to be distributed consists only of money or debts due to |
|
the estate, the court shall: |
|
(1) set the amount to which each distributee is |
|
entitled; and |
|
(2) order the executor or administrator to pay and |
|
deliver that amount. (Tex. Prob. Code, Sec. 379.) |
|
Sec. 360.252. ESTATE PROPERTY LOCATED IN ANOTHER COUNTY. |
|
(a) If any portion of the estate to be partitioned is located in |
|
another county and cannot be fairly partitioned without prejudice |
|
to the distributees' interests, the commissioners may report those |
|
facts to the court in writing. |
|
(b) On the making of a report under Subsection (a), if the |
|
court is satisfied that the property cannot be fairly divided or |
|
that the sale of the property would be more advantageous to the |
|
distributees, the court may order a sale of the property. The sale |
|
must be conducted in the manner provided by Subchapter E for the |
|
sale of property that is not capable of fair and equal division. |
|
(c) If the court is not satisfied that the property cannot |
|
be fairly and advantageously divided, or that the sale of the |
|
property would be more advantageous to the distributees, the court |
|
may appoint three or more commissioners in each county in which the |
|
property is located. If the court appoints commissioners under |
|
this subsection, the proceedings under Subchapter D for partition |
|
by commissioners must be followed. (Tex. Prob. Code, Sec. 382.) |
|
Sec. 360.253. COMMUNITY PROPERTY. (a) If a spouse dies |
|
leaving community property, the surviving spouse, at any time after |
|
letters testamentary or of administration have been granted and an |
|
inventory, appraisement, and list of claims of the estate have been |
|
returned, may apply in writing to the court that granted the letters |
|
for a partition of the community property. |
|
(b) The surviving spouse shall execute and deliver a bond to |
|
the judge of the court described by Subsection (a). The bond must |
|
be: |
|
(1) with a corporate surety or at least two good and |
|
sufficient personal sureties; |
|
(2) payable to and approved by the judge; |
|
(3) in an amount equal to the value of the surviving |
|
spouse's interest in the community property; and |
|
(4) conditioned for the payment of half of all debts |
|
existing against the community property. |
|
(c) The court shall proceed to partition the community |
|
property into two equal moieties, one to be delivered to the |
|
surviving spouse and the other to be delivered to the executor or |
|
administrator of the deceased spouse's estate. |
|
(d) If a partition is made under this section: |
|
(1) a lien exists on the property delivered to the |
|
surviving spouse to secure the payment of the bond required under |
|
Subsection (b); and |
|
(2) any creditor of the community estate: |
|
(A) may sue in the creditor's own name on the |
|
bond; and |
|
(B) is entitled: |
|
(i) to have judgment on the bond for half of |
|
the debt the creditor establishes; and |
|
(ii) to be paid by the executor or |
|
administrator of the deceased spouse's estate for the other half. |
|
(e) The provisions of this title relating to the partition |
|
and distribution of an estate apply to a partition under this |
|
section to the extent applicable. (Tex. Prob. Code, Sec. 385.) |
|
Sec. 360.254. JOINTLY OWNED PROPERTY. (a) A person who has |
|
a joint interest with a decedent's estate in any property may apply |
|
to the court that granted letters testamentary or of administration |
|
on the estate for a partition of the property. |
|
(b) On application under Subsection (a), the court shall |
|
partition the property between the applicant and the decedent's |
|
estate. |
|
(c) The provisions of this title relating to the partition |
|
and distribution of an estate govern a partition under this section |
|
to the extent applicable. (Tex. Prob. Code, Sec. 386.) |
|
[Sections 360.255-360.300 reserved for expansion] |
|
SUBCHAPTER G. ENFORCEMENT |
|
Sec. 360.301. LIABILITY FOR FAILURE TO DELIVER ESTATE |
|
PROPERTY. (a) If an executor or administrator neglects, when |
|
demanded, to deliver a portion of an estate ordered to be delivered |
|
to a person entitled to that portion, the person may file with the |
|
court clerk a written complaint alleging: |
|
(1) the fact of the neglect; |
|
(2) the date of the person's demand; and |
|
(3) other relevant facts. |
|
(b) On the filing of a complaint under Subsection (a), the |
|
court clerk shall issue a citation to be served personally on the |
|
executor or administrator. The citation must: |
|
(1) apprise the executor or administrator of the |
|
complaint; and |
|
(2) cite the executor or administrator to appear |
|
before the court and answer, if the executor or administrator |
|
desires, at the time designated in the citation. |
|
(c) If at the hearing the court finds that the citation was |
|
properly served and returned and that the executor or administrator |
|
is guilty of the neglect alleged, the court shall enter an order to |
|
that effect. |
|
(d) An executor or administrator found guilty under |
|
Subsection (c) is liable to the complainant for damages at the rate |
|
of 10 percent of the amount or the appraised value of the portion of |
|
the estate neglectfully withheld, per month, for each month or |
|
fraction of a month that the portion is or has been neglectfully |
|
withheld after the date of demand. Damages under this subsection |
|
may be recovered in any court of competent jurisdiction. (Tex. |
|
Prob. Code, Sec. 384.) |
|
CHAPTER 361. DEATH, RESIGNATION, OR REMOVAL OF PERSONAL |
REPRESENTATIVES; APPOINTMENT OF SUCCESSORS |
|
REPRESENTATIVES; APPOINTMENT OF SUCCESSORS |
|
|
SUBCHAPTER A. RESIGNATION OF PERSONAL REPRESENTATIVE |
|
|
Sec. 361.001. RESIGNATION APPLICATION |
|
Sec. |
361.002. IMMEDIATE APPOINTMENT OF SUCCESSOR; |
|
DISCHARGE AND RELEASE |
|
Sec. 361.003. HEARING DATE; CITATION |
|
Sec. 361.004. HEARING |
|
Sec. 361.005. REQUIREMENTS FOR DISCHARGE |
|
[Sections 361.006-361.050 reserved for expansion] |
|
SUBCHAPTER B. REMOVAL AND REINSTATEMENT OF PERSONAL REPRESENTATIVE |
|
|
Sec. 361.051. REMOVAL WITHOUT NOTICE |
|
Sec. 361.052. REMOVAL WITH NOTICE |
|
Sec. 361.053. REMOVAL ORDER |
|
Sec. |
361.054. REMOVAL AND REINSTATEMENT OF PERSONAL |
|
|
|
|
CIRCUMSTANCES |
|
[Sections 361.055-361.100 reserved for expansion] |
|
SUBCHAPTER C. |
APPOINTMENT OF SUCCESSOR REPRESENTATIVE |
|
Sec. 361.101. REQUIREMENTS FOR REVOCATION OF LETTERS |
|
Sec. |
361.102. APPOINTMENT BECAUSE OF DEATH, |
|
RESIGNATION, OR REMOVAL |
|
Sec. |
361.103. APPOINTMENT BECAUSE OF EXISTENCE OF |
|
PRIOR RIGHT |
|
Sec. |
361.104. APPOINTMENT WHEN NAMED EXECUTOR BECOMES |
|
AN ADULT |
|
Sec. |
361.105. APPOINTMENT OF FORMERLY SICK OR ABSENT |
|
EXECUTOR |
|
Sec. |
361.106. APPOINTMENT WHEN WILL DISCOVERED AFTER |
|
GRANT OF ADMINISTRATION |
|
[Sections 361.107-361.150 reserved for expansion] |
|
SUBCHAPTER D. |
PROCEDURES AFTER DEATH, RESIGNATION, OR REMOVAL OF PERSONAL REPRESENTATIVE |
|
PERSONAL REPRESENTATIVE |
|
|
Sec. |
361.151. PAYMENT TO ESTATE WHILE OFFICE OF |
|
PERSONAL REPRESENTATIVE IS VACANT |
|
Sec. |
361.152. FURTHER ADMINISTRATION WITH OR WITHOUT |
|
NOTICE OR WILL ANNEXED |
|
Sec. |
361.153. RIGHTS, POWERS, AND DUTIES OF SUCCESSOR |
|
REPRESENTATIVE |
|
Sec. |
361.154. SUCCESSOR EXECUTOR ALSO SUCCEEDS TO |
|
PRIOR RIGHTS AND DUTIES |
|
Sec. |
361.155. SUCCESSOR REPRESENTATIVE TO RETURN |
|
|
|
|
CLAIMS |
|
CHAPTER 361. DEATH, RESIGNATION, OR REMOVAL OF PERSONAL |
|
REPRESENTATIVES; APPOINTMENT OF SUCCESSORS |
|
SUBCHAPTER A. RESIGNATION OF PERSONAL REPRESENTATIVE |
|
Sec. 361.001. RESIGNATION APPLICATION. A personal |
|
representative who wishes to resign the representative's trust |
|
shall file a written application with the court clerk, accompanied |
|
by a complete and verified exhibit and final account showing the |
|
true condition of the estate entrusted to the representative's |
|
care. (Tex. Prob. Code, Sec. 221(a).) |
|
Sec. 361.002. IMMEDIATE APPOINTMENT OF SUCCESSOR; |
|
DISCHARGE AND RELEASE. (a) If the necessity exists, the court may |
|
immediately accept the resignation of a personal representative and |
|
appoint a successor representative. |
|
(b) The court may not discharge a person whose resignation |
|
is accepted under Subsection (a), or release the person or the |
|
sureties on the person's bond, until a final order has been issued |
|
or judgment has been rendered on the final account required under |
|
Section 361.001. (Tex. Prob. Code, Sec. 221(b).) |
|
Sec. 361.003. HEARING DATE; CITATION. (a) When an |
|
application to resign as personal representative is filed under |
|
Section 361.001, supported by the exhibit and final account |
|
required under that section, the court clerk shall bring the |
|
application to the judge's attention and the judge shall set a date |
|
for a hearing on the matter. |
|
(b) After a hearing is set under Subsection (a), the clerk |
|
shall issue a citation to all interested persons, showing: |
|
(1) that an application that complies with Section |
|
361.001 has been filed; and |
|
(2) the time and place set for the hearing at which the |
|
interested persons may appear and contest the exhibit and final |
|
account supporting the application. |
|
(c) Unless the court directs that the citation under |
|
Subsection (b) be published, the citation must be posted. (Tex. |
|
Prob. Code, Sec. 221(c).) |
|
Sec. 361.004. HEARING. (a) At the time set for the hearing |
|
under Section 361.003, unless the court continues the hearing, and |
|
if the court finds that the citation required under that section has |
|
been properly issued and served, the court shall: |
|
(1) examine the exhibit and final account required by |
|
Section 361.001; |
|
(2) hear all evidence for and against the exhibit and |
|
final account; and |
|
(3) if necessary, restate and audit and settle the |
|
exhibit and final account. |
|
(b) If the court is satisfied that the matters entrusted to |
|
the personal representative applying to resign have been handled |
|
and accounted for in accordance with the law, the court shall: |
|
(1) enter an order approving the exhibit and final |
|
account; and |
|
(2) require that any estate property remaining in the |
|
applicant's possession be delivered to the persons entitled by law |
|
to receive the property. (Tex. Prob. Code, Sec. 221(d).) |
|
Sec. 361.005. REQUIREMENTS FOR DISCHARGE. (a) A personal |
|
representative applying to resign may not be discharged until: |
|
(1) the resignation application has been heard; |
|
(2) the exhibit and final account required under |
|
Section 361.001 have been examined, settled, and approved; and |
|
(3) the applicant has satisfied the court that the |
|
applicant has: |
|
(A) delivered any estate property remaining in |
|
the applicant's possession; or |
|
(B) complied with all lawful orders of the court |
|
with relation to the applicant's trust as representative. |
|
(b) When a personal representative applying to resign has |
|
fully complied with the orders of the court, the court shall enter |
|
an order: |
|
(1) accepting the resignation; and |
|
(2) discharging the applicant, and, if the applicant |
|
is under bond, the applicant's sureties. (Tex. Prob. Code, Secs. |
|
221(e), (f).) |
|
[Sections 361.006-361.050 reserved for expansion] |
|
SUBCHAPTER B. REMOVAL AND REINSTATEMENT OF PERSONAL REPRESENTATIVE |
|
Sec. 361.051. REMOVAL WITHOUT NOTICE. The court, on the |
|
court's own motion or on the motion of any interested person, and |
|
without notice, may remove a personal representative appointed |
|
under this title who: |
|
(1) neglects to qualify in the manner and time |
|
required by law; |
|
(2) fails to return, before the 91st day after the date |
|
the representative qualifies, an inventory of the estate property |
|
and a list of claims that have come to the representative's |
|
knowledge, unless that deadline is extended by court order; |
|
(3) if required, fails to give a new bond within the |
|
time prescribed; |
|
(4) is absent from the state for a consecutive period |
|
of three or more months without the court's permission, or moves out |
|
of state; |
|
(5) cannot be served with notices or other processes |
|
because: |
|
(A) the representative's whereabouts are |
|
unknown; |
|
(B) the representative is eluding service; or |
|
(C) the representative is a nonresident of this |
|
state who does not have a resident agent to accept service of |
|
process in any probate proceeding or other action relating to the |
|
estate; or |
|
(6) subject to Section 361.054(a), has misapplied, |
|
embezzled, or removed from the state, or is about to misapply, |
|
embezzle, or remove from the state, all or part of the property |
|
entrusted to the representative's care. (Tex. Prob. Code, Sec. |
|
222(a)(1).) |
|
Sec. 361.052. REMOVAL WITH NOTICE. The court may remove a |
|
personal representative on the court's own motion, or on the |
|
complaint of any interested person, after the representative has |
|
been cited by personal service to answer at a time and place fixed |
|
in the notice, if: |
|
(1) sufficient grounds appear to support a belief that |
|
the representative has misapplied, embezzled, or removed from the |
|
state, or is about to misapply, embezzle, or remove from the state, |
|
all or part of the property entrusted to the representative's care; |
|
(2) the representative fails to return any account |
|
required by law to be made; |
|
(3) the representative fails to obey a proper order of |
|
the court that has jurisdiction with respect to the performance of |
|
the representative's duties; |
|
(4) the representative is proved to have been guilty |
|
of gross misconduct, or mismanagement in the performance of the |
|
representative's duties; |
|
(5) the representative: |
|
(A) becomes incapacitated; |
|
(B) is sentenced to the penitentiary; or |
|
(C) from any other cause, becomes incapable of |
|
properly performing the duties of the representative's trust; or |
|
(6) the representative, as executor or administrator, |
|
fails to: |
|
(A) make a final settlement by the third |
|
anniversary of the date letters testamentary or of administration |
|
are granted, unless that period is extended by the court on a |
|
showing of sufficient cause supported by oath; or |
|
(B) timely file the affidavit or certificate |
|
required by Section 308.004. (Tex. Prob. Code, Sec. 222(b).) |
|
Sec. 361.053. REMOVAL ORDER. An order removing a personal |
|
representative must: |
|
(1) state the cause of the removal; |
|
(2) require that, if the removed representative has |
|
been personally served with citation, any letters testamentary or |
|
of administration issued to the removed representative be |
|
surrendered, and that, regardless of whether the letters have been |
|
delivered, all the letters be canceled of record; and |
|
(3) require the removed representative to deliver any |
|
estate property in the representative's possession to the persons |
|
entitled to the property or to the person who has been appointed and |
|
has qualified as successor representative. (Tex. Prob. Code, Sec. |
|
222(c).) |
|
Sec. 361.054. REMOVAL AND REINSTATEMENT OF PERSONAL |
|
REPRESENTATIVE UNDER CERTAIN CIRCUMSTANCES. (a) The court may |
|
remove a personal representative under Section 361.051(6) only on |
|
the presentation of clear and convincing evidence given under oath. |
|
(b) Not later than the 10th day after the date the court |
|
signs the order of removal, a personal representative who is |
|
removed under Section 361.051(6) may file an application with the |
|
court for a hearing to determine whether the representative should |
|
be reinstated. |
|
(c) On the filing of an application under Subsection (b), |
|
the court clerk shall issue to the applicant and to the successor |
|
representative of the decedent's estate a notice stating: |
|
(1) that an application for reinstatement has been |
|
filed; |
|
(2) the name of the decedent from whose estate the |
|
applicant was removed as personal representative; and |
|
(3) the name of the applicant for reinstatement. |
|
(d) The notice required by Subsection (c) must cite all |
|
persons interested in the estate to appear at the time and place |
|
stated in the notice if the persons wish to contest the application. |
|
(e) If, at the conclusion of a hearing under this section, |
|
the court is satisfied by a preponderance of the evidence that the |
|
personal representative applying for reinstatement did not engage |
|
in the conduct that directly led to the applicant's removal, the |
|
court shall: |
|
(1) set aside any order appointing a successor |
|
representative; and |
|
(2) enter an order reinstating the applicant as |
|
personal representative of the estate. |
|
(f) If the court sets aside the appointment of a successor |
|
representative under this section, the court may require the |
|
successor representative to prepare and file, under oath, an |
|
accounting of the estate and to detail the disposition the |
|
successor has made of the estate property. (Tex. Prob. Code, Secs. |
|
222(a)(2), 222A.) |
|
[Sections 361.055-361.100 reserved for expansion] |
|
SUBCHAPTER C. APPOINTMENT OF SUCCESSOR REPRESENTATIVE |
|
Sec. 361.101. REQUIREMENTS FOR REVOCATION OF LETTERS. |
|
Except as otherwise expressly provided by this title, the court may |
|
revoke letters testamentary or of administration and grant other |
|
letters only: |
|
(1) on application; and |
|
(2) after personal service of citation on the person, |
|
if living, whose letters are sought to be revoked, requiring the |
|
person to appear and show cause why the application should not be |
|
granted. (Tex. Prob. Code, Sec. 220(f).) |
|
Sec. 361.102. APPOINTMENT BECAUSE OF DEATH, RESIGNATION, OR |
|
REMOVAL. (a) If a person appointed as personal representative |
|
fails to qualify or, after qualifying, dies, resigns, or is |
|
removed, the court may, on application, appoint a successor |
|
representative if the appointment of a successor is necessary. The |
|
appointment may be made before a final accounting is filed or before |
|
any action on a final accounting is taken. In the event of death, |
|
the legal representatives of the deceased personal representative |
|
shall account for, pay, and deliver all estate property that was |
|
entrusted to the deceased personal representative's care to the |
|
persons legally entitled to receive the property, at the time and in |
|
the manner ordered by the court. |
|
(b) The court may appoint a successor representative under |
|
this section without citation or notice if the court finds that the |
|
immediate appointment of a successor representative is necessary. |
|
(Tex. Prob. Code, Sec. 220(a).) |
|
Sec. 361.103. APPOINTMENT BECAUSE OF EXISTENCE OF PRIOR |
|
RIGHT. If letters testamentary or of administration have been |
|
granted to a person and another person applies for letters, the |
|
court shall revoke the initial letters and grant letters to the |
|
second applicant if the second applicant: |
|
(1) is qualified; |
|
(2) has a prior right to the letters; and |
|
(3) has not waived the prior right to the letters. |
|
(Tex. Prob. Code, Sec. 220(b).) |
|
Sec. 361.104. APPOINTMENT WHEN NAMED EXECUTOR BECOMES AN |
|
ADULT. (a) A person named as executor in a will who was not an |
|
adult when the will was probated is entitled to have letters |
|
testamentary or of administration that were granted to another |
|
person revoked and appropriate letters granted to the named |
|
executor on proof that the named executor has become an adult and is |
|
not otherwise disqualified. |
|
(b) This subsection applies only if a will names two or more |
|
persons as executor. A person named as an executor in the will who |
|
was a minor when the will was probated may, on becoming an adult, |
|
qualify and receive letters if: |
|
(1) letters have been issued only to the named |
|
executors in the will who were adults when the will was probated; |
|
and |
|
(2) the person is not otherwise disqualified from |
|
receiving letters. (Tex. Prob. Code, Sec. 220(c).) |
|
Sec. 361.105. APPOINTMENT OF FORMERLY SICK OR ABSENT |
|
EXECUTOR. (a) This section applies only to a person named as |
|
executor in a will who was sick or absent from the state when the |
|
testator died or the will was proved and, as a result, could not: |
|
(1) present the will for probate before the 31st day |
|
after the date of the testator's death; or |
|
(2) accept and qualify as executor before the 21st day |
|
after the date the will is probated. |
|
(b) A person to whom this section applies may accept and |
|
qualify as executor before the 61st day after the date the person |
|
returns to the state or recovers from illness if proof is presented |
|
to the court that the person was ill or absent. |
|
(c) If a person accepts and qualifies as executor under |
|
Subsection (b) and letters testamentary or of administration have |
|
been issued to another person, the court shall revoke the other |
|
person's letters. (Tex. Prob. Code, Sec. 220(d).) |
|
Sec. 361.106. APPOINTMENT WHEN WILL DISCOVERED AFTER GRANT |
|
OF ADMINISTRATION. If, after letters of administration have been |
|
issued, it is discovered that the decedent left a lawful will, the |
|
court shall revoke the letters of administration and issue proper |
|
letters to any persons entitled to the letters. (Tex. Prob. Code, |
|
Sec. 220(e).) |
|
[Sections 361.107-361.150 reserved for expansion] |
|
SUBCHAPTER D. PROCEDURES AFTER DEATH, RESIGNATION, OR REMOVAL OF |
|
PERSONAL REPRESENTATIVE |
|
Sec. 361.151. PAYMENT TO ESTATE WHILE OFFICE OF PERSONAL |
|
REPRESENTATIVE IS VACANT. (a) A debtor, obligor, or payor may pay |
|
or tender money or another thing of value falling due to an estate |
|
while the office of personal representative of the estate is vacant |
|
to the court clerk for the credit of the estate. |
|
(b) Payment or tender under Subsection (a) discharges the |
|
debtor, obligor, or payor of the obligation for all purposes to the |
|
extent and purpose of the payment or tender. |
|
(c) If the court clerk accepts payment or tender under this |
|
section, the court clerk shall issue a receipt for the payment or |
|
tender. (Tex. Prob. Code, Sec. 220(g).) |
|
Sec. 361.152. FURTHER ADMINISTRATION WITH OR WITHOUT NOTICE |
|
OR WILL ANNEXED. (a) If an estate is unrepresented as a result of |
|
the death, removal, or resignation of the estate's personal |
|
representative, and on application by a qualified person interested |
|
in the estate, the court shall grant further administration of the |
|
estate if necessary, and with the will annexed if there is a will. |
|
(b) An appointment under Subsection (a) shall be made on |
|
notice and after a hearing, as in the case of an original |
|
appointment, except that, if the court finds that the immediate |
|
appointment of a successor representative is necessary, the court |
|
may appoint the successor on application but without citation or |
|
notice. (Tex. Prob. Code, Sec. 223.) |
|
Sec. 361.153. RIGHTS, POWERS, AND DUTIES OF SUCCESSOR |
|
REPRESENTATIVE. (a) If a personal representative of an estate not |
|
administered succeeds another personal representative, the |
|
successor representative has all rights, powers, and duties of the |
|
predecessor, other than those rights and powers conferred on the |
|
predecessor by will that are different from those conferred by this |
|
title on personal representatives generally. Subject to that |
|
exception, the successor representative shall administer the |
|
estate as if the successor's administration were a continuation of |
|
the former administration. |
|
(b) A successor representative shall account for all the |
|
estate property that came into the predecessor's possession, and is |
|
entitled to any order or remedy that the court has the power to give |
|
to enforce the delivery of the estate property and the liability of |
|
the predecessor's sureties for any portion of the estate property |
|
that is not delivered. The successor is not required to account for |
|
any portion of the estate property that the successor failed to |
|
recover after due diligence. |
|
(c) In addition to the powers granted under Subsections (a) |
|
and (b), a successor representative may: |
|
(1) make himself or herself, and may be made, a party |
|
to a suit prosecuted by or against the successor's predecessors; |
|
(2) settle with the predecessor, and receive and give |
|
a receipt for any portion of the estate property that remains in the |
|
predecessor's possession; or |
|
(3) commence a suit on the bond or bonds of the |
|
predecessor, in the successor's own name and capacity, for all the |
|
estate property that: |
|
(A) came into the predecessor's possession; and |
|
(B) has not been accounted for by the |
|
predecessor. (Tex. Prob. Code, Secs. 224, 225.) |
|
Sec. 361.154. SUCCESSOR EXECUTOR ALSO SUCCEEDS TO PRIOR |
|
RIGHTS AND DUTIES. An executor who accepts appointment and |
|
qualifies after letters of administration have been granted on the |
|
estate shall, in the manner prescribed by Section 361.153, succeed |
|
to the previous administrator, and shall administer the estate as |
|
if the executor's administration were a continuation of the former |
|
administration, subject to any legal directions of the testator |
|
with respect to the estate that are contained in the will. (Tex. |
|
Prob. Code, Sec. 226.) |
|
Sec. 361.155. SUCCESSOR REPRESENTATIVE TO RETURN |
|
INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS. (a) An appointee who |
|
has qualified to succeed a former personal representative shall |
|
make and return to the court an inventory, appraisement, and list of |
|
claims of the estate before the 91st day after the date the personal |
|
representative qualifies, in the manner required of an original |
|
appointee, and shall also return additional inventories, |
|
appraisements, and lists of claims in the manner required of an |
|
original appointee. |
|
(b) On the application of any person interested in the |
|
estate, the court shall, in an order appointing a successor |
|
representative of an estate, appoint appraisers as in an original |
|
appointment. (Tex. Prob. Code, Sec. 227.) |
|
CHAPTER 362. |
CLOSING ADMINISTRATION OF ESTATE |
|
SUBCHAPTER A. SETTLING AND CLOSING ESTATE |
|
|
Sec. |
362.001. SETTLING AND CLOSING ADMINISTRATION OF |
|
ESTATE |
|
Sec. 362.002. COMPELLING SETTLEMENT OF ESTATE |
|
Sec. 362.003. VERIFIED ACCOUNT REQUIRED |
|
Sec. 362.004. CONTENTS OF ACCOUNT |
|
Sec. |
362.005. CITATION AND NOTICE ON PRESENTATION OF |
|
ACCOUNT |
|
Sec. 362.006. EXAMINATION OF AND HEARING ON ACCOUNT |
|
Sec. 362.007. DELIVERY OF CERTAIN PROPERTY TO GUARDIAN |
|
Sec. |
362.008. CERTAIN DEBTS EXCLUDED FROM SETTLEMENT |
|
COMPUTATION |
|
Sec. |
362.009. MONEY DUE TO ESTATE PENDING FINAL |
|
DISCHARGE |
|
Sec. 362.010. PAYMENT OF INHERITANCE TAXES REQUIRED |
|
Sec. 362.011. PARTITION AND DISTRIBUTION OF ESTATE |
|
Sec. |
362.012. DISCHARGE OF PERSONAL REPRESENTATIVE |
|
WHEN NO ESTATE PROPERTY REMAINS |
|
Sec. |
362.013. DISCHARGE OF PERSONAL REPRESENTATIVE |
|
WHEN ESTATE FULLY ADMINISTERED |
|
[Sections 362.014-362.050 reserved for expansion] |
|
SUBCHAPTER B. FAILURE OF PERSONAL REPRESENTATIVE TO ACT |
|
|
Sec. 362.051. FAILURE TO PRESENT ACCOUNT |
|
Sec. |
362.052. LIABILITY FOR FAILURE TO DELIVER ESTATE |
|
PROPERTY |
|
CHAPTER 362. CLOSING ADMINISTRATION OF ESTATE |
|
SUBCHAPTER A. SETTLING AND CLOSING ESTATE |
|
Sec. 362.001. SETTLING AND CLOSING ADMINISTRATION OF |
|
ESTATE. The administration of an estate shall be settled and closed |
|
when: |
|
(1) all the debts known to exist against the estate |
|
have been paid, or have been paid to the extent permitted by the |
|
assets in the personal representative's possession; and |
|
(2) no further need for administration exists. (Tex. |
|
Prob. Code, Sec. 404.) |
|
Sec. 362.002. COMPELLING SETTLEMENT OF ESTATE. A person |
|
interested in the administration of an estate for which letters |
|
testamentary or of administration have been granted may proceed, |
|
after any period of time, to compel settlement of the estate if it |
|
does not appear from the record that the administration of the |
|
estate has been closed. (Tex. Prob. Code, Sec. 92.) |
|
Sec. 362.003. VERIFIED ACCOUNT REQUIRED. The personal |
|
representative of an estate shall present to the court the |
|
representative's verified account for final settlement when the |
|
administration of the estate is to be settled and closed. (Tex. |
|
Prob. Code, Sec. 405 (part).) |
|
Sec. 362.004. CONTENTS OF ACCOUNT. (a) Except as provided |
|
by Subsection (b), it is sufficient for an account for final |
|
settlement to: |
|
(1) refer to the inventory without describing each |
|
item of property in detail; and |
|
(2) refer to and adopt any proceeding had in the |
|
administration concerning a sale, renting, leasing for mineral |
|
development, or any other transaction on behalf of the estate, |
|
including an exhibit, account, or voucher previously filed and |
|
approved, without restating the particular items thereof. |
|
(b) An account for final settlement must be accompanied by |
|
proper vouchers supporting each item included in the account for |
|
which the personal representative has not already accounted and, |
|
either by reference to any proceeding described by Subsection (a) |
|
or by a statement of the facts, must show: |
|
(1) the estate property that has come into the |
|
representative's possession and the disposition of that property; |
|
(2) the debts that have been paid; |
|
(3) any debts and expenses still owing by the estate; |
|
(4) any estate property still in the representative's |
|
possession; |
|
(5) the persons entitled to receive that estate and, |
|
for each of those persons: |
|
(A) the person's relationship to the decedent; |
|
(B) the person's residence, if known; and |
|
(C) whether the person is an adult or a minor and, |
|
if the person is a minor, the name of each of the minor's guardians, |
|
if any; |
|
(6) any advancement or payment made by the |
|
representative from that estate to any person entitled to receive |
|
part of that estate; |
|
(7) the tax returns due that have been filed and the |
|
taxes due and owing that have been paid, including: |
|
(A) a complete account of the amount of taxes; |
|
(B) the date the taxes were paid; and |
|
(C) the governmental entity to which the taxes |
|
were paid; |
|
(8) if on the filing of the account a tax return due to |
|
be filed or any taxes due to be paid are delinquent, the reasons |
|
for, and include a description of, the delinquency; and |
|
(9) that the representative has paid all required bond |
|
premiums. (Tex. Prob. Code, Sec. 405 (part).) |
|
Sec. 362.005. CITATION AND NOTICE ON PRESENTATION OF |
|
ACCOUNT. (a) On the presentation of an account for final |
|
settlement by a temporary or permanent personal representative, the |
|
county clerk shall issue citation to the persons and in the manner |
|
provided by Subsections (c) and (d). |
|
(b) Citation issued under Subsection (a) must contain: |
|
(1) a statement that an account for final settlement |
|
has been presented; |
|
(2) the time and place the court will consider the |
|
account; and |
|
(3) a statement requiring the person cited to appear |
|
and contest the account, if the person wishes to contest the |
|
account. |
|
(c) The personal representative shall give notice to each |
|
heir or beneficiary of the decedent by certified mail, return |
|
receipt requested, unless the court by written order directs |
|
another type of notice to be given. The notice must include a copy |
|
of the account for final settlement. |
|
(d) The court by written order shall require additional |
|
notice if the court considers the additional notice necessary. |
|
(e) The court may allow the waiver of notice of an account |
|
for final settlement in a proceeding concerning a decedent's |
|
estate. (Tex. Prob. Code, Sec. 407.) |
|
Sec. 362.006. EXAMINATION OF AND HEARING ON ACCOUNT. (a) |
|
On the court's satisfaction that citation has been properly served |
|
on all persons interested in the estate, the court shall examine the |
|
account for final settlement and the accompanying vouchers. |
|
(b) After hearing all exceptions or objections to the |
|
account for final settlement and accompanying vouchers and the |
|
evidence in support of or against the account, the court shall audit |
|
and settle the account and, if necessary, restate the account. |
|
(Tex. Prob. Code, Sec. 408(a).) |
|
Sec. 362.007. DELIVERY OF CERTAIN PROPERTY TO GUARDIAN. |
|
The court may permit a resident personal representative who has |
|
possession of any of a ward's estate to deliver the estate to a |
|
qualified and acting guardian of the ward. (Tex. Prob. Code, Sec. |
|
405A.) |
|
Sec. 362.008. CERTAIN DEBTS EXCLUDED FROM SETTLEMENT |
|
COMPUTATION. In the settlement of any of the accounts of the |
|
personal representative, all debts due the estate that the court is |
|
satisfied could not have been collected by due diligence and that |
|
have not been collected shall be excluded from the computation. |
|
(Tex. Prob. Code, Sec. 412.) |
|
Sec. 362.009. MONEY DUE TO ESTATE PENDING FINAL DISCHARGE. |
|
Money or another thing of value that becomes due to the estate while |
|
an account for final settlement is pending may be paid, delivered, |
|
or tendered to the personal representative until the order of final |
|
discharge of the representative is entered in the minutes of the |
|
court. The representative shall issue a receipt for the money or |
|
other thing of value to the obligor or payor. On issuance of the |
|
receipt, the obligor or payor is discharged of the obligation for |
|
all purposes. (Tex. Prob. Code, Sec. 409.) |
|
Sec. 362.010. PAYMENT OF INHERITANCE TAXES REQUIRED. A |
|
personal representative's account for final settlement of an estate |
|
may not be approved, and the estate may not be closed, unless the |
|
account shows and the court finds that all inheritance taxes due and |
|
owing to this state with respect to all interests and properties |
|
passing through the representative's possession have been paid. |
|
(Tex. Prob. Code, Sec. 410.) |
|
Sec. 362.011. PARTITION AND DISTRIBUTION OF ESTATE. If, on |
|
final settlement of an estate, any of the estate remains in the |
|
personal representative's possession, the court shall order that a |
|
partition and distribution be made among the persons entitled to |
|
receive that part of the estate. (Tex. Prob. Code, Sec. 408(b).) |
|
Sec. 362.012. DISCHARGE OF PERSONAL REPRESENTATIVE WHEN NO |
|
ESTATE PROPERTY REMAINS. The court shall enter an order discharging |
|
a personal representative from the representative's trust and |
|
closing the estate if, on final settlement of the estate, none of |
|
the estate remains in the representative's possession. (Tex. Prob. |
|
Code, Sec. 408(c).) |
|
Sec. 362.013. DISCHARGE OF PERSONAL REPRESENTATIVE WHEN |
|
ESTATE FULLY ADMINISTERED. The court shall enter an order |
|
discharging a personal representative from the representative's |
|
trust and declaring the estate closed when: |
|
(1) the representative has fully administered the |
|
estate in accordance with this title and the court's orders; |
|
(2) the representative's account for final settlement |
|
has been approved; and |
|
(3) the representative has delivered all of the estate |
|
remaining in the representative's possession to the person or |
|
persons entitled to receive that part of the estate. (Tex. Prob. |
|
Code, Sec. 408(d).) |
|
[Sections 362.014-362.050 reserved for expansion] |
|
SUBCHAPTER B. FAILURE OF PERSONAL REPRESENTATIVE TO ACT |
|
Sec. 362.051. FAILURE TO PRESENT ACCOUNT. (a) The court, on |
|
the court's own motion or on the written complaint of anyone |
|
interested in a decedent's estate that has been administered, shall |
|
have the personal representative who is charged with the duty of |
|
presenting an account for final settlement cited to appear and |
|
present the account within the time specified in the citation if the |
|
representative failed or neglected to present the account at the |
|
proper time. |
|
(b) On or after the fourth anniversary of the date the court |
|
clerk last issues letters testamentary or of administration for a |
|
decedent's estate, the court may close the estate without an |
|
account for final settlement and without appointing a successor |
|
personal representative if: |
|
(1) the whereabouts of the personal representative and |
|
heirs of the decedent are unknown; and |
|
(2) a complaint has not been filed by anyone |
|
interested in the decedent's estate. (Tex. Prob. Code, Sec. 406.) |
|
Sec. 362.052. LIABILITY FOR FAILURE TO DELIVER ESTATE |
|
PROPERTY. (a) On the final settlement of an estate, if the |
|
personal representative neglects on demand to deliver a portion of |
|
the estate or any money in the representative's possession ordered |
|
to be delivered to a person entitled to that property, the person |
|
may file with the court clerk a written complaint alleging: |
|
(1) the fact of the neglect; |
|
(2) the date of the person's demand; and |
|
(3) other relevant facts. |
|
(b) On the filing of a complaint under Subsection (a), the |
|
court clerk shall issue a citation to be served personally on the |
|
personal representative. The citation must: |
|
(1) apprise the representative of the complaint; and |
|
(2) cite the representative to appear before the court |
|
and answer, if the representative desires, at a time designated in |
|
the citation. |
|
(c) If at the hearing the court finds that the citation was |
|
properly served and returned, and that the personal representative |
|
is guilty of the neglect charged, the court shall enter an order to |
|
that effect. |
|
(d) A personal representative found guilty under Subsection |
|
(c) is liable to the person who filed the complaint under Subsection |
|
(a) for damages at the rate of 10 percent of the amount of the money |
|
or the appraised value of the portion of the estate neglectfully |
|
withheld, per month, for each month or fraction of a month that the |
|
money or portion of the estate is or has been neglectfully withheld |
|
after the date of demand. Damages under this subsection may be |
|
recovered in any court of competent jurisdiction. (Tex. Prob. |
|
Code, Sec. 414.) |
|
[Chapters 363-400 reserved for expansion] |
|
SUBTITLE I. INDEPENDENT ADMINISTRATION |
|
[Chapters 401-450 reserved for expansion] |
|
SUBTITLE J. ADDITIONAL MATTERS RELATING TO THE ADMINISTRATION OF |
|
CERTAIN ESTATES |
|
CHAPTER 451. |
ORDER OF NO ADMINISTRATION |
|
Sec. |
451.001. APPLICATION FOR FAMILY ALLOWANCE AND |
|
ORDER OF NO ADMINISTRATION |
|
Sec. 451.002. HEARING AND ORDER |
|
Sec. 451.003. EFFECT OF ORDER |
|
Sec. 451.004. PROCEEDING TO REVOKE ORDER |
|
CHAPTER 451. ORDER OF NO ADMINISTRATION |
|
Sec. 451.001. APPLICATION FOR FAMILY ALLOWANCE AND ORDER OF |
|
NO ADMINISTRATION. (a) If the value of the entire assets of an |
|
estate, excluding homestead and exempt property, does not exceed |
|
the amount to which the surviving spouse and minor children of the |
|
decedent are entitled as a family allowance, an application may be |
|
filed by or on behalf of the surviving spouse or minor children |
|
requesting a court to make a family allowance and to enter an order |
|
that no administration of the decedent's estate is necessary. |
|
(b) The application may be filed: |
|
(1) in any court in which venue is proper for |
|
administration; or |
|
(2) if an application for the appointment of a |
|
personal representative has been filed but not yet granted, in the |
|
court in which the application is filed. |
|
(c) The application must: |
|
(1) state the names of the heirs or devisees; |
|
(2) list, to the extent known, estate creditors |
|
together with the amounts of the claims; and |
|
(3) describe all property belonging to the estate, |
|
together with: |
|
(A) the estimated value of the property according |
|
to the best knowledge and information of the applicant; and |
|
(B) the liens and encumbrances on the property. |
|
(d) The application must also include a prayer that the |
|
court make a family allowance and that, if the family allowance |
|
exhausts the entire assets of the estate, excluding homestead and |
|
exempt property, the entire assets of the estate be set aside to the |
|
surviving spouse and minor children, as with other family |
|
allowances provided for by Subchapter C, Chapter 353. (Tex. Prob. |
|
Code, Sec. 139.) |
|
Sec. 451.002. HEARING AND ORDER. (a) On the filing of an |
|
application under Section 451.001, the court may hear the |
|
application: |
|
(1) promptly without notice; or |
|
(2) at a time and with notice as required by the court. |
|
(b) On the hearing of the application, if the court finds |
|
that the facts contained in the application are true and that the |
|
expenses of last illness, funeral charges, and expenses of the |
|
proceeding have been paid or secured, the court shall: |
|
(1) make a family allowance; and |
|
(2) if the entire assets of the estate, excluding |
|
homestead and exempt property, are exhausted by the family |
|
allowance made under Subdivision (1): |
|
(A) assign to the surviving spouse and minor |
|
children the entire estate in the same manner and with the same |
|
effect as provided in Subchapter C, Chapter 353, for the making of a |
|
family allowance to the surviving spouse and minor children; and |
|
(B) order that there shall be no administration |
|
of the estate. (Tex. Prob. Code, Sec. 140.) |
|
Sec. 451.003. EFFECT OF ORDER. (a) An order of no |
|
administration issued under Section 451.002(b) constitutes |
|
sufficient legal authority to each person who owes money, has |
|
custody of property, or acts as registrar or transfer agent of any |
|
evidence of interest, indebtedness, property, or right, belonging |
|
to the estate, and to each person purchasing from or otherwise |
|
dealing with the estate, for payment or transfer without |
|
administration to the persons described in the order as entitled to |
|
receive the estate. |
|
(b) The persons described in the order are entitled to |
|
enforce by suit their right to payment or transfer described by this |
|
section. (Tex. Prob. Code, Sec. 141.) |
|
Sec. 451.004. PROCEEDING TO REVOKE ORDER. (a) At any time, |
|
but not later than the first anniversary of the date of entry of an |
|
order of no administration under Section 451.002(b), any interested |
|
person may file an application to revoke the order. |
|
(b) An application to revoke the order must allege that: |
|
(1) other estate property has been discovered, |
|
property belonging to the estate was not included in the |
|
application for no administration, or the property described in the |
|
application for no administration was incorrectly valued; and |
|
(2) if that property were added, included, or |
|
correctly valued, as applicable, the total value of the property |
|
would exceed the amount necessary to justify the court in ordering |
|
no administration. |
|
(c) The court shall revoke the order on proof of any of the |
|
grounds described by Subsection (b). |
|
(d) If the value of any property is contested, the court may |
|
appoint two appraisers to appraise the property in accordance with |
|
the procedure prescribed for inventories and appraisements under |
|
Chapter 309. The appraisement of the appointed appraisers shall be |
|
received in evidence but is not conclusive. (Tex. Prob. Code, Sec. |
|
142.) |
|
CHAPTER 452. TEMPORARY ADMINISTRATION OF ESTATES |
|
|
SUBCHAPTER A. APPOINTMENT OF TEMPORARY ADMINISTRATOR GENERALLY |
|
|
Sec. 452.001. DUTY TO APPOINT TEMPORARY ADMINISTRATOR |
|
Sec. 452.002. APPLICATION FOR APPOINTMENT |
|
Sec. 452.003. ORDER OF APPOINTMENT; REQUIREMENTS |
|
Sec. 452.004. TEMPORARY ADMINISTRATOR'S BOND |
|
Sec. |
452.005. ISSUANCE OF LETTERS OF TEMPORARY |
|
ADMINISTRATION |
|
Sec. 452.006. NOTICE OF APPOINTMENT |
|
Sec. 452.007. HEARING TO CONTEST APPOINTMENT |
|
Sec. 452.008. PERMANENT APPOINTMENT |
|
[Sections 452.009-452.050 reserved for expansion] |
|
SUBCHAPTER B. TEMPORARY ADMINISTRATION PENDING CONTEST OF A WILL |
OR ADMINISTRATION |
|
OR ADMINISTRATION |
|
|
Sec. 452.051. APPOINTMENT OF TEMPORARY ADMINISTRATOR |
|
Sec. 452.052. ADDITIONAL POWERS REGARDING CLAIMS |
|
[Sections 452.053-452.100 reserved for expansion] |
|
SUBCHAPTER C. POWERS AND DUTIES OF TEMPORARY ADMINISTRATOR |
|
|
Sec. |
452.101. LIMITED POWERS OF TEMPORARY |
|
ADMINISTRATOR |
|
Sec. |
452.102. ADDITIONAL BOND FOR EXTENSION OF RIGHTS |
|
AND POWERS |
|
[Sections 452.103-452.150 reserved for expansion] |
|
SUBCHAPTER D. EXPIRATION AND CLOSING OF TEMPORARY ADMINISTRATION |
|
|
Sec. 452.151. ACCOUNTING |
|
Sec. 452.152. CLOSING TEMPORARY ADMINISTRATION |
|
CHAPTER 452. TEMPORARY ADMINISTRATION OF ESTATES |
|
SUBCHAPTER A. APPOINTMENT OF TEMPORARY ADMINISTRATOR GENERALLY |
|
Sec. 452.001. DUTY TO APPOINT TEMPORARY ADMINISTRATOR. A |
|
judge who determines that the interest of a decedent's estate |
|
requires the immediate appointment of a personal representative |
|
shall, by written order, appoint a temporary administrator with |
|
powers limited as the circumstances of the case require. (Tex. |
|
Prob. Code, Sec. 131A(a) (part).) |
|
Sec. 452.002. APPLICATION FOR APPOINTMENT. (a) A person |
|
may file with the court clerk a written application for the |
|
appointment of a temporary administrator of a decedent's estate |
|
under this subchapter. |
|
(b) The application must: |
|
(1) be verified; |
|
(2) include the information required by: |
|
(A) Sections 256.052, 256.053, and 256.054, if |
|
the decedent died testate; or |
|
(B) Section 301.052, if the decedent died |
|
intestate; and |
|
(3) include an affidavit that: |
|
(A) states the name, address, and interest of the |
|
applicant; |
|
(B) states the facts showing an immediate |
|
necessity for the appointment of a temporary administrator; |
|
(C) lists the requested powers and duties of the |
|
temporary administrator; |
|
(D) states that the applicant is entitled to |
|
letters of temporary administration and is not disqualified by law |
|
from serving as a temporary administrator; and |
|
(E) describes the property that the applicant |
|
believes to be in the decedent's estate. (Tex. Prob. Code, Sec. |
|
131A(b).) |
|
Sec. 452.003. ORDER OF APPOINTMENT; REQUIREMENTS. The |
|
order appointing a temporary administrator must: |
|
(1) designate the appointee as "temporary |
|
administrator" of the decedent's estate; |
|
(2) specify the period of the appointment, which may |
|
not exceed 180 days unless the appointment is made permanent under |
|
Section 452.008; |
|
(3) define the powers given to the appointee; and |
|
(4) set the amount of bond to be given by the |
|
appointee. (Tex. Prob. Code, Secs. 131A(a) (part), (c).) |
|
Sec. 452.004. TEMPORARY ADMINISTRATOR'S BOND. (a) In this |
|
section, "business day" means a day other than a Saturday, Sunday, |
|
or holiday recognized by this state. |
|
(b) Not later than the third business day after the date of |
|
the order appointing a temporary administrator, the appointee shall |
|
file with the county clerk a bond in the amount ordered by the |
|
court. (Tex. Prob. Code, Sec. 131A(d).) |
|
Sec. 452.005. ISSUANCE OF LETTERS OF TEMPORARY |
|
ADMINISTRATION. Not later than the third day after the date an |
|
appointee qualifies as temporary administrator, the county clerk |
|
shall issue to the appointee letters of temporary administration |
|
that list the powers to be exercised by the appointee as ordered by |
|
the court. (Tex. Prob. Code, Sec. 131A(e).) |
|
Sec. 452.006. NOTICE OF APPOINTMENT. (a) On the date the |
|
county clerk issues letters of temporary administration: |
|
(1) the county clerk shall post on the courthouse door |
|
a notice of the appointment to all interested persons; and |
|
(2) the appointee shall notify, by certified mail, |
|
return receipt requested, the decedent's known heirs of the |
|
appointment. |
|
(b) A notice required under Subsection (a) must state that: |
|
(1) an heir or other interested person may request a |
|
hearing to contest the appointment not later than the 15th day after |
|
the date the letters of temporary administration are issued; |
|
(2) if no contest is made during the period specified |
|
by the notice, the appointment continues for the period specified |
|
in the order appointing a temporary administrator; and |
|
(3) the court may make the appointment permanent. |
|
(Tex. Prob. Code, Secs. 131A(f), (g), (h).) |
|
Sec. 452.007. HEARING TO CONTEST APPOINTMENT. (a) A |
|
hearing shall be held and a determination made not later than the |
|
10th day after the date an heir or other interested person requests |
|
a hearing to contest the appointment of a temporary administrator. |
|
If a request is not made on or before the 15th day after the date the |
|
letters of temporary administration are issued, the appointment of |
|
a temporary administrator continues for the period specified in the |
|
order, unless the appointment is made permanent under Section |
|
452.008. |
|
(b) While a contest of the appointment of a temporary |
|
administrator is pending, the temporary appointee shall continue to |
|
act as administrator of the estate to the extent of the powers given |
|
by the appointment. |
|
(c) A court that sets aside a temporary administrator's |
|
appointment may require the temporary administrator to prepare and |
|
file, under oath, a complete exhibit of the condition of the estate |
|
and detail any disposition of the estate property made by the |
|
temporary administrator. (Tex. Prob. Code, Sec. 131A(i).) |
|
Sec. 452.008. PERMANENT APPOINTMENT. At the end of a |
|
temporary administrator's period of appointment, the court by |
|
written order may make the appointment permanent if the permanent |
|
appointment is in the interest of the estate. (Tex. Prob. Code, |
|
Sec. 131A(j).) |
|
[Sections 452.009-452.050 reserved for expansion] |
|
SUBCHAPTER B. TEMPORARY ADMINISTRATION PENDING CONTEST OF A WILL |
|
OR ADMINISTRATION |
|
Sec. 452.051. APPOINTMENT OF TEMPORARY ADMINISTRATOR. (a) |
|
If a contest related to probating a will or granting letters of |
|
administration is pending, the court may appoint a temporary |
|
administrator, with powers limited as the circumstances of the case |
|
require. |
|
(b) The appointment may continue until the contest is |
|
terminated and an executor or administrator with full powers is |
|
appointed. |
|
(c) The power of appointment under this section is in |
|
addition to the court's power of appointment under Subchapter A. |
|
(Tex. Prob. Code, Sec. 132(a).) |
|
Sec. 452.052. ADDITIONAL POWERS REGARDING CLAIMS. (a) A |
|
court that grants temporary administration pending a will contest |
|
or a contest on an application for letters of administration may, at |
|
any time while the contest is pending, give the temporary |
|
administrator all the powers of a permanent administrator regarding |
|
claims against the estate. |
|
(b) If the court gives the temporary administrator powers |
|
described by Subsection (a), the court and the temporary |
|
administrator shall act in the same manner as in permanent |
|
administration in matters such as: |
|
(1) approving or disapproving claims; |
|
(2) paying claims; and |
|
(3) selling property to pay claims. |
|
(c) The court shall require a temporary administrator given |
|
powers described by Subsection (a) to give bond in the full amount |
|
required of a permanent administrator. |
|
(d) This section is cumulative and does not affect the |
|
court's right to order a temporary administrator to perform any |
|
action described by this section in other cases if the action is |
|
necessary or expedient to preserve the estate pending the contest's |
|
final determination. (Tex. Prob. Code, Sec. 132(b).) |
|
[Sections 452.053-452.100 reserved for expansion] |
|
SUBCHAPTER C. POWERS AND DUTIES OF TEMPORARY ADMINISTRATOR |
|
Sec. 452.101. LIMITED POWERS OF TEMPORARY ADMINISTRATOR. |
|
(a) A temporary administrator may exercise only the rights and |
|
powers: |
|
(1) specifically expressed in the court's order |
|
appointing the temporary administrator; or |
|
(2) expressed in the court's subsequent orders. |
|
(b) An act performed by a temporary administrator is void |
|
unless expressly authorized by the court's orders. (Tex. Prob. |
|
Code, Sec. 133 (part).) |
|
Sec. 452.102. ADDITIONAL BOND FOR EXTENSION OF RIGHTS AND |
|
POWERS. A court that extends the rights and powers of a temporary |
|
administrator in an order subsequent to the order appointing the |
|
temporary administrator may require additional bond commensurate |
|
with the extension. (Tex. Prob. Code, Sec. 133 (part).) |
|
[Sections 452.103-452.150 reserved for expansion] |
|
SUBCHAPTER D. EXPIRATION AND CLOSING OF TEMPORARY ADMINISTRATION |
|
Sec. 452.151. ACCOUNTING. At the expiration of a temporary |
|
appointment, the temporary administrator shall file with the court |
|
clerk: |
|
(1) a sworn list of all estate property that has come |
|
into the temporary administrator's possession; |
|
(2) a return of all sales made by the temporary |
|
administrator; and |
|
(3) a full exhibit and account of all the temporary |
|
administrator's acts as temporary administrator. (Tex. Prob. Code, |
|
Sec. 134.) |
|
Sec. 452.152. CLOSING TEMPORARY ADMINISTRATION. (a) The |
|
court shall act on the list, return, exhibit, and account filed |
|
under Section 452.151. |
|
(b) When letters of temporary administration expire or |
|
become ineffective for any cause, the court immediately shall enter |
|
an order requiring the temporary administrator to promptly deliver |
|
the estate remaining in the temporary administrator's possession to |
|
the person legally entitled to possession of the estate. |
|
(c) On proof of delivery under Subsection (b), the temporary |
|
administrator shall be discharged and the sureties on the temporary |
|
administrator's bond shall be released as to any future liability. |
|
(Tex. Prob. Code, Sec. 135.) |
|
CHAPTER 453. ADMINISTRATION OF COMMUNITY PROPERTY |
|
|
Sec. 453.001. EFFECT OF CHAPTER |
|
Sec. |
453.002. ADMINISTRATION OF COMMUNITY PROPERTY NOT |
|
NECESSARY |
|
Sec. |
453.003. GENERAL POWERS OF SURVIVING SPOUSE IF NO |
|
ADMINISTRATION IS PENDING |
|
Sec. |
453.004. COLLECTION OF UNPAID WAGES IF NO |
|
ADMINISTRATION IS PENDING |
|
Sec. 453.005. REMARRIAGE OF SURVIVING SPOUSE |
|
Sec. |
453.006. ACCOUNT OF COMMUNITY DEBTS AND |
|
DISPOSITION OF COMMUNITY PROPERTY |
|
Sec. |
453.007. DELIVERY OF COMMUNITY ESTATE ON FINAL |
|
PARTITION |
|
Sec. 453.008. LIABILITY OF SURVIVING SPOUSE FOR LOSS |
|
Sec. |
453.009. DISTRIBUTION OF POWERS BETWEEN PERSONAL |
|
REPRESENTATIVE AND SURVIVING SPOUSE |
|
CHAPTER 453. ADMINISTRATION OF COMMUNITY PROPERTY |
|
Sec. 453.001. EFFECT OF CHAPTER. This chapter does not |
|
prohibit the administration of community property under other |
|
provisions of this title relating to the administration of an |
|
estate. (Tex. Prob. Code, Sec. 155 (part).) |
|
Sec. 453.002. ADMINISTRATION OF COMMUNITY PROPERTY NOT |
|
NECESSARY. If a spouse dies intestate and the community property |
|
passes to the surviving spouse, no administration of the community |
|
property is necessary. (Tex. Prob. Code, Sec. 155 (part).) |
|
Sec. 453.003. GENERAL POWERS OF SURVIVING SPOUSE IF NO |
|
ADMINISTRATION IS PENDING. (a) If there is no qualified executor |
|
or administrator of a deceased spouse's estate, the surviving |
|
spouse, as the surviving partner of the marital partnership, may: |
|
(1) sue and be sued to recover community property; |
|
(2) sell, mortgage, lease, and otherwise dispose of |
|
community property to pay community debts; |
|
(3) collect claims due to the community estate; and |
|
(4) exercise other powers as necessary to: |
|
(A) preserve the community property; |
|
(B) discharge community obligations; and |
|
(C) wind up community affairs. |
|
(b) This section does not affect the disposition of the |
|
deceased spouse's property. (Tex. Prob. Code, Secs. 160(a), (c).) |
|
Sec. 453.004. COLLECTION OF UNPAID WAGES IF NO |
|
ADMINISTRATION IS PENDING. (a) If a person who owes money to the |
|
community estate for current wages at the time of a deceased |
|
spouse's death is provided an affidavit stating that the affiant is |
|
the surviving spouse and that no one has qualified as executor or |
|
administrator of the deceased spouse's estate, the person who pays |
|
or delivers to the affiant the deceased spouse's final paycheck for |
|
the wages, including any unpaid sick pay or vacation pay, is |
|
released from liability to the same extent as if the payment or |
|
delivery is made to the deceased spouse's personal representative. |
|
The person is not required to inquire into the truth of the |
|
affidavit. |
|
(b) An affiant to whom the payment or delivery is made under |
|
Subsection (a) is answerable to a person having a prior right and is |
|
accountable to a personal representative who is appointed. The |
|
affiant is liable for any damage or loss to a person that arises |
|
from a payment or delivery made in reliance on the affidavit. |
|
(c) This section does not affect the disposition of the |
|
deceased spouse's property. (Tex. Prob. Code, Secs. 160(b), (c).) |
|
Sec. 453.005. REMARRIAGE OF SURVIVING SPOUSE. The |
|
remarriage of a surviving spouse does not terminate the surviving |
|
spouse's powers as a surviving partner. (Tex. Prob. Code, Sec. |
|
176.) |
|
Sec. 453.006. ACCOUNT OF COMMUNITY DEBTS AND DISPOSITION OF |
|
COMMUNITY PROPERTY. (a) The surviving spouse shall keep a fair and |
|
full account and statement of: |
|
(1) all community debts and expenses paid by the |
|
surviving spouse; and |
|
(2) the disposition made of the community property. |
|
(b) The surviving spouse or personal representative shall |
|
keep a separate, distinct account of all community debts allowed or |
|
paid in the administration and settlement of an estate described by |
|
Sections 101.052(a) and (b). (Tex. Prob. Code, Secs. 156 (part), |
|
168 (part).) |
|
Sec. 453.007. DELIVERY OF COMMUNITY ESTATE ON FINAL |
|
PARTITION. On final partition of the community estate, the |
|
surviving spouse shall deliver to the deceased spouse's heirs or |
|
devisees their interest in the estate, and the increase in and |
|
profits of the interest, after deducting from the interest: |
|
(1) the proportion of the community debts chargeable |
|
to the interest; |
|
(2) unavoidable losses; |
|
(3) necessary and reasonable expenses; and |
|
(4) a reasonable commission for the management of the |
|
interest. (Tex. Prob. Code, Sec. 168 (part).) |
|
Sec. 453.008. LIABILITY OF SURVIVING SPOUSE FOR LOSS. A |
|
surviving spouse is not liable for a loss sustained by the community |
|
estate unless the surviving spouse is guilty of gross negligence or |
|
bad faith. (Tex. Prob. Code, Sec. 168 (part).) |
|
Sec. 453.009. DISTRIBUTION OF POWERS BETWEEN PERSONAL |
|
REPRESENTATIVE AND SURVIVING SPOUSE. (a) A qualified personal |
|
representative of a deceased spouse's estate may administer: |
|
(1) the separate property of the deceased spouse; |
|
(2) the community property that was by law under the |
|
management of the deceased spouse during the marriage; and |
|
(3) the community property that was by law under the |
|
joint control of the spouses during the marriage. |
|
(b) The surviving spouse, as surviving partner of the |
|
marital partnership, is entitled to: |
|
(1) retain possession and control of the community |
|
property that was legally under the sole management of the |
|
surviving spouse during the marriage; and |
|
(2) exercise over that property any power this chapter |
|
authorizes the surviving spouse to exercise if there is no |
|
administration pending on the deceased spouse's estate. |
|
(c) The surviving spouse, by written instrument filed with |
|
the clerk, may waive any right to exercise powers as community |
|
survivor. If the surviving spouse files a waiver under this |
|
subsection, the deceased spouse's personal representative may |
|
administer the entire community estate. (Tex. Prob. Code, Sec. |
|
177.) |
|
CHAPTER 454. ADMINISTRATION OF ESTATE OF PERSON PRESUMED DEAD |
|
|
SUBCHAPTER A. ESTATES OF PERSONS PRESUMED DEAD |
|
|
Sec. 454.001. APPLICABILITY; DETERMINATION OF DEATH |
|
Sec. 454.002. GRANT OF LETTERS ON PROOF OF DEATH |
|
Sec. 454.003. CITATION AND SEARCH |
|
Sec. 454.004. DISTRIBUTION OF ESTATE |
|
[Sections 454.005-454.050 reserved for expansion] |
|
SUBCHAPTER B. PERSONS PRESUMED DEAD BUT SUBSEQUENTLY |
|
|
PROVED LIVING |
|
|
Sec. 454.051. RESTORATION OF ESTATE |
|
Sec. |
454.052. LIABILITY OF PERSONAL REPRESENTATIVE AND |
|
|
|
|
NOT VOIDED |
|
CHAPTER 454. ADMINISTRATION OF ESTATE OF PERSON PRESUMED DEAD |
|
SUBCHAPTER A. ESTATES OF PERSONS PRESUMED DEAD |
|
Sec. 454.001. APPLICABILITY; DETERMINATION OF DEATH. (a) |
|
This subchapter applies in a proceeding to probate a person's will |
|
or administer a person's estate if there is no direct evidence that |
|
the person is dead. |
|
(b) The court has jurisdiction to determine the fact, time, |
|
and place of the person's death. (Tex. Prob. Code, Sec. 72(a) |
|
(part).) |
|
Sec. 454.002. GRANT OF LETTERS ON PROOF OF DEATH. On |
|
application for the grant of letters testamentary or of |
|
administration for the estate of a person presumed to be dead, the |
|
court shall grant the letters if the death of the person is proved |
|
by circumstantial evidence to the court's satisfaction. (Tex. |
|
Prob. Code, Sec. 72(a) (part).) |
|
Sec. 454.003. CITATION AND SEARCH. (a) If the fact of a |
|
person's death must be proved by circumstantial evidence under |
|
Section 454.002, at the request of any interested person, the court |
|
may order that a citation be issued to the person presumed dead and |
|
that the citation be served on the person by publication and posting |
|
and by additional methods as directed by the order. |
|
(b) After letters testamentary or of administration are |
|
issued, the court may also direct: |
|
(1) the personal representative to search for the |
|
person presumed dead by notifying law enforcement agencies and |
|
public welfare agencies in appropriate locations that the person |
|
has disappeared; and |
|
(2) the applicant to engage the services of an |
|
investigative agency to search for the person presumed dead. |
|
(c) The expense of a search or notice under this section |
|
shall be taxed to the estate as a cost and paid out of the estate |
|
property. (Tex. Prob. Code, Sec. 72(b).) |
|
Sec. 454.004. DISTRIBUTION OF ESTATE. The personal |
|
representative of the estate of a person presumed dead may not |
|
distribute the estate to the persons entitled to the estate until |
|
the third anniversary of the date the court granted the letters |
|
under Section 454.002. (Tex. Prob. Code, Sec. 72(a) (part).) |
|
[Sections 454.005-454.050 reserved for expansion] |
|
SUBCHAPTER B. PERSONS PRESUMED DEAD BUT SUBSEQUENTLY |
|
PROVED LIVING |
|
Sec. 454.051. RESTORATION OF ESTATE. (a) Except as |
|
provided by Subsection (b), a person who was proved by |
|
circumstantial evidence to be dead under Section 454.002 and who, |
|
in a subsequent action, is proved by direct evidence to have been |
|
living at any time after the date the court granted the letters |
|
under that section, is entitled to restoration of the person's |
|
estate or the residue of the person's estate, including the rents |
|
and profits from the estate. |
|
(b) For estate property sold by the personal representative |
|
of the estate, a distributee, or a distributee's successors or |
|
assignees to a bona fide purchaser for value, the right of a person |
|
to restoration is limited to the proceeds of the sale or the residue |
|
of the sold property with any increase of the proceeds or the |
|
residue. (Tex. Prob. Code, Sec. 72(a) (part).) |
|
Sec. 454.052. LIABILITY OF PERSONAL REPRESENTATIVE AND |
|
OTHERS ACTING UNDER COURT ORDER; BONDS NOT VOIDED. (a) Anyone, |
|
including a personal representative, who delivered to another the |
|
estate or any part of the estate of a person who was proved by |
|
circumstantial evidence to be dead under Section 454.002 and who, |
|
in a subsequent action, is proved by direct evidence to have been |
|
living at any time after the date the court granted the letters |
|
testamentary or of administration under that section is not liable |
|
for any part of the estate delivered in accordance with the court's |
|
order. |
|
(b) Subject to Subsection (c), the bond of a personal |
|
representative of the estate of a person described by Subsection |
|
(a) is not void in any event. |
|
(c) A surety is not liable for any act of the personal |
|
representative that was done in compliance with or approved by the |
|
court's order. (Tex. Prob. Code, Sec. 72(a) (part).) |
|
[Chapters 455-500 reserved for expansion] |
|
SUBTITLE K. |
FOREIGN WILLS, OTHER TESTAMENTARY INSTRUMENTS, AND FIDUCIARIES |
|
FIDUCIARIES |
|
|
CHAPTER 501. |
ANCILLARY PROBATE OF FOREIGN WILL |
|
Sec. |
501.001. AUTHORITY FOR ANCILLARY PROBATE OF |
|
FOREIGN WILL |
|
Sec. |
501.002. APPLICATION FOR ANCILLARY PROBATE OF |
|
FOREIGN WILL |
|
Sec. 501.003. CITATION AND NOTICE |
|
Sec. 501.004. RECORDING BY CLERK |
|
Sec. |
501.005. EFFECT OF FILING AND RECORDING FOREIGN |
|
WILL |
|
Sec. 501.006. ANCILLARY LETTERS TESTAMENTARY |
|
Sec. 501.007. EFFECT ON PROPERTY |
|
Sec. 501.008. SETTING ASIDE OF CERTAIN FOREIGN WILLS |
|
CHAPTER 501. ANCILLARY PROBATE OF FOREIGN WILL |
|
Sec. 501.001. AUTHORITY FOR ANCILLARY PROBATE OF FOREIGN |
|
WILL. The written will of a testator who was not domiciled in this |
|
state at the time of the testator's death may be admitted to probate |
|
in this state if: |
|
(1) the will would affect any property in this state; |
|
and |
|
(2) proof is presented that the will stands probated |
|
or otherwise established in any state of the United States or a |
|
foreign nation. (Tex. Prob. Code, Sec. 95(a).) |
|
Sec. 501.002. APPLICATION FOR ANCILLARY PROBATE OF FOREIGN |
|
WILL. (a) An application for ancillary probate in this state of a |
|
foreign will admitted to probate or otherwise established in the |
|
jurisdiction in which the testator was domiciled at the time of the |
|
testator's death is required to indicate only that probate in this |
|
state is requested on the basis of the authenticated copy of the |
|
foreign proceedings in which the will was admitted to probate or |
|
otherwise established. |
|
(b) An application for ancillary probate in this state of a |
|
foreign will that has been admitted to probate or otherwise |
|
established in a jurisdiction other than the jurisdiction in which |
|
the testator was domiciled at the time of the testator's death must: |
|
(1) include all information required for an |
|
application for probate of a domestic will; and |
|
(2) state the name and address of: |
|
(A) each devisee; and |
|
(B) each person who would be entitled to a |
|
portion of the estate as an heir in the absence of a will. |
|
(c) An application described by Subsection (a) or (b) must |
|
include for filing a copy of the foreign will and the judgment, |
|
order, or decree by which the will was admitted to probate or |
|
otherwise established. The copy must: |
|
(1) be attested by and with the original signature of |
|
the court clerk or other official who has custody of the will or who |
|
is in charge of probate records; |
|
(2) include a certificate with the original signature |
|
of the judge or presiding magistrate of the court stating that the |
|
attestation is in proper form; and |
|
(3) have the court seal affixed, if a court seal |
|
exists. (Tex. Prob. Code, Secs. 95(b)(1) (part), (2) (part), (c) |
|
(part).) |
|
Sec. 501.003. CITATION AND NOTICE. (a) Citation or notice |
|
is not required for an application described by Section 501.002(a). |
|
(b) For an application described by Section 501.002(b), a |
|
citation shall be issued and served by registered or certified mail |
|
on each devisee and heir identified in the application. (Tex. Prob. |
|
Code, Secs. 95(b)(1) (part), (2) (part).) |
|
Sec. 501.004. RECORDING BY CLERK. (a) If a foreign will |
|
submitted for ancillary probate in this state has been admitted to |
|
probate or otherwise established in the jurisdiction in which the |
|
testator was domiciled at the time of the testator's death, it is |
|
the ministerial duty of the court clerk to record the will and the |
|
evidence of the will's probate or other establishment in the |
|
minutes of the court. |
|
(b) If a foreign will submitted for ancillary probate in |
|
this state has been admitted to probate or otherwise established in |
|
a jurisdiction other than the jurisdiction in which the testator |
|
was domiciled at the time of the testator's death, and a contest |
|
against the ancillary probate is not filed as authorized by Chapter |
|
504, the court clerk shall record the will and the evidence of the |
|
will's probate or other establishment in the minutes of the court. |
|
(c) A court order is not necessary for the recording of a |
|
foreign will in accordance with this section. (Tex. Prob. Code, |
|
Secs. 95(d)(1) (part), (2) (part).) |
|
Sec. 501.005. EFFECT OF FILING AND RECORDING FOREIGN WILL. |
|
On filing and recording a foreign will in accordance with this |
|
chapter, the foreign will: |
|
(1) is considered to be admitted to probate; and |
|
(2) has the same effect for all purposes as if the |
|
original will had been admitted to probate by order of a court of |
|
this state, subject to contest in the manner and to the extent |
|
provided by Chapter 504. (Tex. Prob. Code, Secs. 95(d)(1) (part), |
|
(2) (part).) |
|
Sec. 501.006. ANCILLARY LETTERS TESTAMENTARY. (a) On |
|
application, an executor named in a foreign will admitted to |
|
ancillary probate in this state in accordance with this chapter is |
|
entitled to receive ancillary letters testamentary on proof made to |
|
the court that: |
|
(1) the executor has qualified to serve as executor in |
|
the jurisdiction in which the will was previously admitted to |
|
probate or otherwise established; and |
|
(2) the executor is not disqualified from serving in |
|
that capacity in this state. |
|
(b) After the proof required by Subsection (a) is made, the |
|
court shall enter an order directing that ancillary letters |
|
testamentary be issued to the executor. The court shall revoke any |
|
letters of administration previously issued by the court to any |
|
other person on application of the executor after personal service |
|
of citation on the person to whom the letters were issued. (Tex. |
|
Prob. Code, Sec. 105.) |
|
Sec. 501.007. EFFECT ON PROPERTY. A foreign will admitted |
|
to ancillary probate in this state as provided by this chapter after |
|
having been admitted to probate or otherwise established in the |
|
jurisdiction in which the testator was domiciled at the time of the |
|
testator's death is effective to dispose of property in this state |
|
regardless of whether the will was executed with the formalities |
|
required by this title. (Tex. Prob. Code, Sec. 95(e).) |
|
Sec. 501.008. SETTING ASIDE OF CERTAIN FOREIGN WILLS. (a) |
|
This section applies only to a foreign will admitted to ancillary |
|
probate in this state, in accordance with the procedures prescribed |
|
by this chapter, based on the previous probate or other |
|
establishment of the will in the jurisdiction in which the testator |
|
was domiciled at the time of the testator's death. |
|
(b) The admission to probate in this state of a foreign will |
|
to which this section applies shall be set aside if it is |
|
subsequently proven in a proceeding brought for that purpose that |
|
the foreign jurisdiction in which the will was admitted to probate |
|
or otherwise established was not in fact the domicile of the |
|
testator at the time of the testator's death. |
|
(c) The title or rights of a person who, before commencement |
|
of a proceeding to set aside the admission to probate of a foreign |
|
will under this section, purchases property in good faith and for |
|
value from the personal representative or a devisee or otherwise |
|
deals in good faith with the personal representative or a devisee |
|
are not affected by the subsequent setting aside of the admission to |
|
probate in this state. (Tex. Prob. Code, Sec. 95(f).) |
|
CHAPTER 502. |
ORIGINAL PROBATE OF FOREIGN WILL |
|
Sec. |
502.001. ORIGINAL PROBATE OF FOREIGN WILL |
|
AUTHORIZED |
|
Sec. |
502.002. PROOF OF FOREIGN WILL IN ORIGINAL |
|
PROBATE PROCEEDING |
|
CHAPTER 502. ORIGINAL PROBATE OF FOREIGN WILL |
|
Sec. 502.001. ORIGINAL PROBATE OF FOREIGN WILL AUTHORIZED. |
|
(a) This section applies only to a will of a testator who dies |
|
domiciled outside of this state that: |
|
(1) on probate, may operate on any property in this |
|
state; and |
|
(2) is valid under the laws of this state. |
|
(b) A court may grant original probate of a will described |
|
by Subsection (a) in the same manner as the court grants the probate |
|
of other wills under this title if the will: |
|
(1) has not been rejected from probate or |
|
establishment in the jurisdiction in which the testator died |
|
domiciled; or |
|
(2) has been rejected from probate or establishment in |
|
the jurisdiction in which the testator died domiciled solely for a |
|
cause that is not a ground for rejection of a will of a testator who |
|
died domiciled in this state. |
|
(c) A court may delay passing on an application for probate |
|
of a foreign will pending the result of probate or establishment, or |
|
of a contest of probate or establishment, in the jurisdiction in |
|
which the testator died domiciled. (Tex. Prob. Code, Sec. 103.) |
|
Sec. 502.002. PROOF OF FOREIGN WILL IN ORIGINAL PROBATE |
|
PROCEEDING. (a) A copy of the will of a testator who dies domiciled |
|
outside of this state, authenticated in the manner required by this |
|
title, is sufficient proof of the contents of the will to admit the |
|
will to probate in an original proceeding in this state if an |
|
objection to the will is not made. |
|
(b) This section does not: |
|
(1) authorize the probate of a will that would not |
|
otherwise be admissible to probate; or |
|
(2) if an objection is made to a will, relieve the |
|
proponent from offering proof of the contents and legal sufficiency |
|
of the will as otherwise required. |
|
(c) Subsection (b)(2) does not require the proponent to |
|
produce the original will unless ordered by the court. (Tex. Prob. |
|
Code, Sec. 104.) |
|
CHAPTER 503. RECORDING OF FOREIGN TESTAMENTARY INSTRUMENT |
|
|
SUBCHAPTER A. REQUIREMENTS FOR RECORDING FOREIGN TESTAMENTARY |
INSTRUMENT |
|
INSTRUMENT |
|
|
Sec. |
503.001. AUTHORIZATION TO RECORD CERTAIN FOREIGN |
|
|
|
|
RECORDS |
|
Sec. 503.002. ORIGINAL SIGNATURES NOT REQUIRED |
|
Sec. |
503.003. CONTEST OF RECORDED FOREIGN TESTAMENTARY |
|
INSTRUMENT PERMITTED |
|
[Sections 503.004-503.050 reserved for expansion] |
|
SUBCHAPTER B. EFFECTS OF RECORDED FOREIGN |
|
|
TESTAMENTARY INSTRUMENT |
|
|
Sec. |
503.051. RECORDED FOREIGN TESTAMENTARY INSTRUMENT |
|
AS CONVEYANCE |
|
Sec. |
503.052. RECORDED FOREIGN TESTAMENTARY INSTRUMENT |
|
AS NOTICE OF TITLE |
|
CHAPTER 503. RECORDING OF FOREIGN TESTAMENTARY INSTRUMENT |
|
SUBCHAPTER A. REQUIREMENTS FOR RECORDING FOREIGN TESTAMENTARY |
|
INSTRUMENT |
|
Sec. 503.001. AUTHORIZATION TO RECORD CERTAIN FOREIGN |
|
TESTAMENTARY INSTRUMENTS IN DEED RECORDS. (a) A copy of a will or |
|
other testamentary instrument that conveys, or in any other manner |
|
disposes of, land in this state and that has been probated according |
|
to the laws of any state of the United States or a country other than |
|
the United States, along with a copy of the judgment, order, or |
|
decree by which the instrument was admitted to probate that has the |
|
attestation, seal, and certificate required by Section 501.002(c), |
|
may be filed and recorded in the deed records in any county in this |
|
state in which the land is located: |
|
(1) without further proof or authentication, subject |
|
to Section 503.003; and |
|
(2) in the same manner as a deed or conveyance is |
|
required to be recorded under the laws of this state. |
|
(b) A copy of a will or other testamentary instrument |
|
described by Subsection (a), along with a copy of the judgment, |
|
order, or decree by which the instrument was admitted to probate |
|
that has the attestation and certificate required by Section |
|
501.002(c), is: |
|
(1) prima facie evidence that the instrument has been |
|
admitted to probate according to the laws of the state or country in |
|
which it was allegedly admitted to probate; and |
|
(2) sufficient to authorize the instrument and the |
|
judgment, order, or decree to be recorded in the deed records in the |
|
proper county or counties in this state. (Tex. Prob. Code, Secs. 96 |
|
(part), 97.) |
|
Sec. 503.002. ORIGINAL SIGNATURES NOT REQUIRED. |
|
Notwithstanding Section 501.002(c), the original signatures |
|
required by that section may not be required for a recordation in |
|
the deed records in accordance with Section 503.001 or for a purpose |
|
described by Section 503.051 or 503.052. (Tex. Prob. Code, Sec. |
|
95(c) (part).) |
|
Sec. 503.003. CONTEST OF RECORDED FOREIGN TESTAMENTARY |
|
INSTRUMENT PERMITTED. The validity of a will or other testamentary |
|
instrument, a copy of which is filed and recorded as provided by |
|
Section 503.001, may be contested in the manner and to the extent |
|
provided by Subchapter A, Chapter 504. (Tex. Prob. Code, Sec. 96 |
|
(part).) |
|
[Sections 503.004-503.050 reserved for expansion] |
|
SUBCHAPTER B. EFFECTS OF RECORDED FOREIGN |
|
TESTAMENTARY INSTRUMENT |
|
Sec. 503.051. RECORDED FOREIGN TESTAMENTARY INSTRUMENT AS |
|
CONVEYANCE. A copy of a foreign will or other testamentary |
|
instrument described by Section 503.001 and the copy of the |
|
judgment, order, or decree by which the instrument was admitted to |
|
probate that are attested and proved as provided by that section and |
|
delivered to the county clerk of the proper county in this state to |
|
be recorded in the deed records: |
|
(1) take effect and are valid as a deed of conveyance |
|
of all property in this state covered by the instrument; and |
|
(2) have the same effect as a recorded deed or other |
|
conveyance of land beginning at the time the instrument is |
|
delivered to the clerk to be recorded. (Tex. Prob. Code, Sec. 98.) |
|
Sec. 503.052. RECORDED FOREIGN TESTAMENTARY INSTRUMENT AS |
|
NOTICE OF TITLE. A copy of a foreign will or other testamentary |
|
instrument described by Section 503.001 and the copy of the |
|
judgment, order, or decree by which the instrument was admitted to |
|
probate that is attested and proved as provided by that section and |
|
filed for recording in the deed records of the proper county in this |
|
state constitute notice to all persons of the: |
|
(1) existence of the instrument; and |
|
(2) title or titles conferred by the instrument. |
|
(Tex. Prob. Code, Sec. 99.) |
|
CHAPTER 504. CONTEST OF OR OTHER CHALLENGE TO FOREIGN TESTAMENTARY |
INSTRUMENT |
|
INSTRUMENT |
|
|
SUBCHAPTER A. CONTEST OR SETTING ASIDE PROBATE OF FOREIGN WILL IN |
THIS STATE |
|
THIS STATE |
|
|
Sec. |
504.001. GROUNDS FOR CONTESTING FOREIGN WILL |
|
PROBATED IN DOMICILIARY JURISDICTION |
|
Sec. |
504.002. GROUNDS FOR CONTESTING FOREIGN WILL |
|
|
|
|
JURISDICTION |
|
Sec. |
504.003. PROCEDURES AND TIME LIMITS FOR |
|
CONTESTING FOREIGN WILL |
|
Sec. |
504.004. PROBATE OF FOREIGN WILL SET ASIDE FOR |
|
LACK OF SERVICE |
|
[Sections 504.005-504.050 reserved for expansion] |
|
SUBCHAPTER B. CONTEST OR FINAL REJECTION IN FOREIGN JURISDICTION |
|
|
Sec. |
504.051. NOTICE OF WILL CONTEST IN FOREIGN |
|
JURISDICTION |
|
Sec. 504.052. EFFECT OF NOTICE |
|
Sec. |
504.053. EFFECT OF REJECTION OF TESTAMENTARY |
|
INSTRUMENT BY FOREIGN JURISDICTION |
|
CHAPTER 504. CONTEST OF OR OTHER CHALLENGE TO FOREIGN TESTAMENTARY |
|
INSTRUMENT |
|
SUBCHAPTER A. CONTEST OR SETTING ASIDE PROBATE OF FOREIGN WILL IN |
|
THIS STATE |
|
Sec. 504.001. GROUNDS FOR CONTESTING FOREIGN WILL PROBATED |
|
IN DOMICILIARY JURISDICTION. (a) Subject to Subsection (b), an |
|
interested person may contest a foreign will that has been: |
|
(1) admitted to probate or established in the |
|
jurisdiction in which the testator was domiciled at the time of the |
|
testator's death; and |
|
(2) admitted to probate in this state or filed in the |
|
deed records of any county of this state. |
|
(b) A will described by Subsection (a) may be contested only |
|
on the grounds that: |
|
(1) the proceedings in the jurisdiction in which the |
|
testator was domiciled at the time of the testator's death were not |
|
authenticated in the manner required for ancillary probate or |
|
recording in the deed records in this state; |
|
(2) the will has been finally rejected for probate in |
|
this state in another proceeding; or |
|
(3) the probate of the will has been set aside in the |
|
jurisdiction in which the testator was domiciled at the time of the |
|
testator's death. (Tex. Prob. Code, Sec. 100(a).) |
|
Sec. 504.002. GROUNDS FOR CONTESTING FOREIGN WILL PROBATED |
|
IN NON-DOMICILIARY JURISDICTION. A foreign will admitted to |
|
probate or established in any jurisdiction other than the |
|
jurisdiction in which the testator was domiciled at the time of the |
|
testator's death may be contested on any grounds that are the basis |
|
for the contest of a domestic will. (Tex. Prob. Code, Sec. 100(b) |
|
(part).) |
|
Sec. 504.003. PROCEDURES AND TIME LIMITS FOR CONTESTING |
|
FOREIGN WILL. (a) The probate in this state of a foreign will |
|
probated or established in a jurisdiction other than the |
|
jurisdiction in which the testator was domiciled at the time of the |
|
testator's death may be contested in the manner that would apply if |
|
the testator had been domiciled in this state at the time of the |
|
testator's death. |
|
(b) A foreign will admitted to ancillary probate in this |
|
state or filed in the deed records of any county of this state may be |
|
contested using the same procedures and within the same time limits |
|
applicable to the contest of a will admitted to original probate in |
|
this state. (Tex. Prob. Code, Secs. 95(d)(2) (part), 100(c).) |
|
Sec. 504.004. PROBATE OF FOREIGN WILL SET ASIDE FOR LACK OF |
|
SERVICE. (a) The probate in this state of a foreign will shall be |
|
set aside if: |
|
(1) the will was probated in this state: |
|
(A) in accordance with the procedure applicable |
|
to the probate of a will admitted to probate in the jurisdiction in |
|
which the testator was domiciled at the time of the testator's |
|
death; and |
|
(B) without the service of citation required for |
|
a will admitted to probate in another jurisdiction that was not the |
|
testator's domicile at the time of the testator's death; and |
|
(2) it is proved that the foreign jurisdiction in |
|
which the will was probated was not the testator's domicile at the |
|
time of the testator's death. |
|
(b) If otherwise entitled, a will the probate of which is |
|
set aside in accordance with Subsection (a) may be: |
|
(1) reprobated in accordance with the procedure |
|
prescribed for the probate of a will admitted in a jurisdiction that |
|
was not the testator's domicile at the time of the testator's death; |
|
or |
|
(2) admitted to original probate in this state in the |
|
proceeding in which the ancillary probate was set aside or in a |
|
subsequent proceeding. (Tex. Prob. Code, Sec. 100(b) (part).) |
|
[Sections 504.005-504.050 reserved for expansion] |
|
SUBCHAPTER B. CONTEST OR FINAL REJECTION IN FOREIGN JURISDICTION |
|
Sec. 504.051. NOTICE OF WILL CONTEST IN FOREIGN |
|
JURISDICTION. Verified notice that a proceeding to contest a will |
|
probated or established in a foreign jurisdiction has been |
|
commenced in that jurisdiction may be filed and recorded in the |
|
minutes of the court in this state in which the foreign will was |
|
probated, or in the deed records of any county of this state in |
|
which the foreign will was recorded, within the time limits for the |
|
contest of a foreign will in this state. (Tex. Prob. Code, Sec. 101 |
|
(part).) |
|
Sec. 504.052. EFFECT OF NOTICE. After a notice is filed and |
|
recorded under Section 504.051, the probate or recording in this |
|
state of the foreign will that is the subject of the notice has no |
|
effect until verified proof is filed and recorded that the foreign |
|
proceedings: |
|
(1) have been terminated in favor of the will; or |
|
(2) were never commenced. (Tex. Prob. Code, Sec. 101 |
|
(part).) |
|
Sec. 504.053. EFFECT OF REJECTION OF TESTAMENTARY |
|
INSTRUMENT BY FOREIGN JURISDICTION. (a) Except as provided by |
|
Subsection (b), final rejection of a will or other testamentary |
|
instrument from probate or establishment in a foreign jurisdiction |
|
in which the testator was domiciled at the time of the testator's |
|
death is conclusive in this state. |
|
(b) A will or other testamentary instrument that is finally |
|
rejected from probate or establishment in a foreign jurisdiction in |
|
which the testator was domiciled at the time of the testator's death |
|
may be admitted to probate or continue to be effective in this state |
|
if the will or other instrument was rejected solely for a cause that |
|
is not a ground for rejection of a will of a testator who died |
|
domiciled in this state. (Tex. Prob. Code, Sec. 102.) |
|
CHAPTER 505. FOREIGN PERSONAL REPRESENTATIVES, TRUSTEES, AND |
FIDUCIARIES |
|
FIDUCIARIES |
|
|
SUBCHAPTER A. FOREIGN CORPORATE FIDUCIARY |
|
|
Sec. 505.001. DEFINITION |
|
Sec. 505.002. APPLICABILITY OF OTHER LAW |
|
Sec. |
505.003. AUTHORITY OF FOREIGN CORPORATE FIDUCIARY |
|
TO SERVE IN FIDUCIARY CAPACITY |
|
Sec. 505.004. FILING REQUIREMENTS; DESIGNATION |
|
Sec. |
505.005. SERVICE OF NOTICE OR PROCESS ON |
|
SECRETARY OF STATE |
|
Sec. 505.006. CRIMINAL PENALTY; EFFECT OF CONVICTION |
|
[Sections 505.007-505.050 reserved for expansion] |
|
SUBCHAPTER B. FOREIGN EXECUTORS AND TRUSTEES |
|
|
Sec. 505.051. APPLICABILITY OF BOND REQUIREMENT |
|
Sec. 505.052. POWER TO SELL PROPERTY |
|
[Sections 505.053-505.100 reserved for expansion] |
|
SUBCHAPTER C. RECOVERY OF DEBTS BY FOREIGN EXECUTOR OR |
ADMINISTRATOR |
|
ADMINISTRATOR |
|
|
Sec. 505.101. SUIT TO RECOVER DEBT |
|
Sec. 505.102. JURISDICTION |
|
Sec. |
505.103. RESTRICTION ON SUIT BROUGHT BY FOREIGN |
|
EXECUTOR OR ADMINISTRATOR |
|
CHAPTER 505. FOREIGN PERSONAL REPRESENTATIVES, TRUSTEES, AND |
|
FIDUCIARIES |
|
SUBCHAPTER A. FOREIGN CORPORATE FIDUCIARY |
|
Sec. 505.001. DEFINITION. In this subchapter, "foreign |
|
corporate fiduciary" means a corporate fiduciary that does not have |
|
its main office or a branch office in this state. (Tex. Prob. Code, |
|
Sec. 105A(a) (part).) |
|
Sec. 505.002. APPLICABILITY OF OTHER LAW. (a) A foreign |
|
corporate fiduciary acting in a fiduciary capacity in this state in |
|
strict accordance with this subchapter: |
|
(1) is not transacting business in this state within |
|
the meaning of Section 9.001, Business Organizations Code; and |
|
(2) is qualified to serve in that capacity under |
|
Section 501.006. |
|
(b) This subchapter is in addition to, and not a limitation |
|
on, Subtitles F and G, Title 3, Finance Code. (Tex. Prob. Code, |
|
Secs. 105A(c), (d).) |
|
Sec. 505.003. AUTHORITY OF FOREIGN CORPORATE FIDUCIARY TO |
|
SERVE IN FIDUCIARY CAPACITY. (a) Subject to Subsections (b) and |
|
(c) and Section 505.004, a foreign corporate fiduciary may be |
|
appointed by will, deed, agreement, declaration, indenture, court |
|
order or decree, or otherwise and may serve in this state in any |
|
fiduciary capacity, including as: |
|
(1) trustee of a personal or corporate trust; |
|
(2) executor; |
|
(3) administrator; or |
|
(4) guardian of the estate. |
|
(b) A foreign corporate fiduciary appointed to serve in a |
|
fiduciary capacity in this state must have the corporate power to |
|
act in that capacity. |
|
(c) This section applies only to the extent that the home |
|
state of the foreign corporate fiduciary appointed to serve in a |
|
fiduciary capacity in this state grants to a corporate fiduciary |
|
whose home state is this state the authority to serve in like |
|
fiduciary capacity. (Tex. Prob. Code, Sec. 105A(a) (part).) |
|
Sec. 505.004. FILING REQUIREMENTS; DESIGNATION. (a) A |
|
foreign corporate fiduciary must file the following documents with |
|
the secretary of state before qualifying or serving in this state in |
|
a fiduciary capacity as authorized by Section 505.003: |
|
(1) a copy of the fiduciary's charter, articles of |
|
incorporation or of association, and all amendments to those |
|
documents, certified by the fiduciary's secretary under the |
|
fiduciary's corporate seal; |
|
(2) a properly executed written instrument that by the |
|
instrument's terms is of indefinite duration and irrevocable, |
|
appointing the secretary of state and the secretary of state's |
|
successors as the fiduciary's agent for service of process on whom |
|
notices and processes issued by a court of this state may be served |
|
in an action or proceeding relating to a trust, estate, fund, or |
|
other matter within this state with respect to which the fiduciary |
|
is acting in a fiduciary capacity, including the acts or defaults of |
|
the fiduciary with respect to that trust, estate, or fund; and |
|
(3) a written certificate of designation specifying |
|
the name and address of the officer, agent, or other person to whom |
|
the secretary of state shall forward notices and processes |
|
described by Subdivision (2). |
|
(b) A foreign corporate fiduciary may change the |
|
certificate of designation under Subsection (a)(3) by filing a new |
|
certificate. (Tex. Prob. Code, Sec. 105A(b) (part).) |
|
Sec. 505.005. SERVICE OF NOTICE OR PROCESS ON SECRETARY OF |
|
STATE. (a) On receipt of a notice or process described by Section |
|
505.004(a)(2), the secretary of state shall promptly forward the |
|
notice or process by registered or certified mail to the officer, |
|
agent, or other person designated by the foreign corporate |
|
fiduciary under Section 505.004 to receive the notice or process. |
|
(b) Service of notice or process described by Section |
|
505.004(a)(2) on the secretary of state as agent for a foreign |
|
corporate fiduciary has the same effect as if personal service had |
|
been had in this state on the foreign corporate fiduciary. (Tex. |
|
Prob. Code, Sec. 105A(b) (part).) |
|
Sec. 505.006. CRIMINAL PENALTY; EFFECT OF CONVICTION. (a) |
|
A foreign corporate fiduciary commits an offense if the fiduciary |
|
violates this subchapter. |
|
(b) An offense under this section is a misdemeanor |
|
punishable by a fine not to exceed $5,000. |
|
(c) On conviction, the court may prohibit a foreign |
|
corporate fiduciary convicted of an offense under this section from |
|
thereafter serving in any fiduciary capacity in this state. (Tex. |
|
Prob. Code, Sec. 105A(e).) |
|
[Sections 505.007-505.050 reserved for expansion] |
|
SUBCHAPTER B. FOREIGN EXECUTORS AND TRUSTEES |
|
Sec. 505.051. APPLICABILITY OF BOND REQUIREMENT. (a) A |
|
foreign executor is not required to give bond if the will appointing |
|
the foreign executor provides that the executor may serve without |
|
bond. |
|
(b) The bond provisions of this title applicable to domestic |
|
representatives apply to a foreign executor if the will appointing |
|
the foreign executor does not exempt the foreign executor from |
|
giving bond. (Tex. Prob. Code, Sec. 106.) |
|
Sec. 505.052. POWER TO SELL PROPERTY. (a) If a foreign |
|
will has been recorded in the deed records of a county in this state |
|
in the manner provided by this subtitle and the will gives an |
|
executor or trustee the power to sell property located in this |
|
state: |
|
(1) an order of a court of this state is not necessary |
|
to authorize the executor or trustee to make the sale and execute |
|
proper conveyance; and |
|
(2) any specific directions the testator gave in the |
|
foreign will respecting the sale of the estate property must be |
|
followed unless the directions have been annulled or suspended by |
|
an order of a court of competent jurisdiction. |
|
(b) Notwithstanding Section 501.002(c), the original |
|
signatures required by that section may not be required for |
|
purposes of this section. (Tex. Prob. Code, Secs. 95(c) (part), |
|
107.) |
|
[Sections 505.053-505.100 reserved for expansion] |
|
SUBCHAPTER C. RECOVERY OF DEBTS BY FOREIGN EXECUTOR OR |
|
ADMINISTRATOR |
|
Sec. 505.101. SUIT TO RECOVER DEBT. (a) On giving notice |
|
by registered or certified mail to all creditors of a decedent in |
|
this state who have filed a claim against the decedent's estate for |
|
a debt due to the creditor, a foreign executor or administrator of a |
|
person who was a nonresident at the time of death may maintain a |
|
suit in this state for the recovery of debts due to the decedent. |
|
(b) The plaintiff's letters testamentary or of |
|
administration granted by a competent tribunal, properly |
|
authenticated, must be filed with the suit. (Tex. Prob. Code, Secs. |
|
107A(a), (b).) |
|
Sec. 505.102. JURISDICTION. (a) A foreign executor or |
|
administrator who files a suit authorized by Section 505.101 |
|
submits personally to the jurisdiction of the courts of this state |
|
in a proceeding relating to the recovery of a debt owed to a |
|
resident of this state by the decedent whose estate the executor or |
|
administrator represents. |
|
(b) Jurisdiction under this section is limited to the amount |
|
of money or value of personal property recovered in this state by |
|
the foreign executor or administrator. (Tex. Prob. Code, Sec. |
|
107A(c).) |
|
Sec. 505.103. RESTRICTION ON SUIT BROUGHT BY FOREIGN |
|
EXECUTOR OR ADMINISTRATOR. A suit may not be maintained in this |
|
state by a foreign executor or administrator for a decedent's |
|
estate under this subchapter if there is: |
|
(1) an executor or administrator of the decedent's |
|
estate qualified by a court of this state; or |
|
(2) a pending application in this state for the |
|
appointment of an executor or administrator of the decedent's |
|
estate. (Tex. Prob. Code, Sec. 107A(d).) |
|
[Chapters 506-550 reserved for expansion] |
|
SUBTITLE L. PAYMENT OF ESTATES INTO TREASURY |
|
CHAPTER 551. |
PAYMENT OF CERTAIN ESTATES TO STATE |
|
SUBCHAPTER A. PAYMENT OF CERTAIN FUNDS TO STATE |
|
|
Sec. |
551.001. PAYMENT OF CERTAIN SHARES OF ESTATE TO |
|
STATE |
|
Sec. 551.002. PAYMENT OF PORTION THAT IS IN MONEY |
|
Sec. 551.003. PAYMENT OF PORTION THAT IS NOT IN MONEY |
|
Sec. |
551.004. COMPENSATION TO EXECUTOR OR |
|
ADMINISTRATOR |
|
Sec. 551.005. COMPTROLLER INDISPENSABLE PARTY |
|
Sec. 551.006. COMPTROLLER'S RECEIPT |
|
[Sections 551.007-551.050 reserved for expansion] |
|
SUBCHAPTER B. RECOVERY OF FUNDS PAID TO STATE |
|
|
Sec. 551.051. RECOVERY OF FUNDS |
|
Sec. 551.052. ACTION FOR RECOVERY |
|
Sec. 551.053. JUDGMENT |
|
Sec. 551.054. PAYMENT OF COSTS |
|
Sec. 551.055. REPRESENTATION OF COMPTROLLER |
|
[Sections 551.056-551.100 reserved for expansion] |
|
SUBCHAPTER C. PENALTIES; ENFORCEMENT |
|
|
Sec. 551.101. LIABILITY OF COURT CLERK; PENALTY |
|
Sec. 551.102. DAMAGES FOR FAILURE TO MAKE PAYMENTS |
|
Sec. |
551.103. ENFORCEMENT OF PAYMENT AND DAMAGES; |
|
RECOVERY ON BOND |
|
CHAPTER 551. PAYMENT OF CERTAIN ESTATES TO STATE |
|
SUBCHAPTER A. PAYMENT OF CERTAIN FUNDS TO STATE |
|
Sec. 551.001. PAYMENT OF CERTAIN SHARES OF ESTATE TO STATE. |
|
(a) The court, by written order, shall require the executor or |
|
administrator of an estate to pay to the comptroller as provided by |
|
this subchapter the share of that estate of a person entitled to |
|
that share who does not demand the share from the executor or |
|
administrator within six months after the date of, as applicable: |
|
(1) a court order approving the report of the |
|
commissioners of partition made under Section 360.154; or |
|
(2) the settlement of the final account of the |
|
executor or administrator. |
|
(b) This section does not apply to the share of an estate to |
|
which a resident minor without a guardian is entitled. (Tex. Prob. |
|
Code, Sec. 427 (part).) |
|
Sec. 551.002. PAYMENT OF PORTION THAT IS IN MONEY. The |
|
executor or administrator shall pay the portion of the share |
|
subject to Section 551.001 that is in money to the comptroller. |
|
(Tex. Prob. Code, Sec. 427 (part).) |
|
Sec. 551.003. PAYMENT OF PORTION THAT IS NOT IN MONEY. (a) |
|
The court's order under Section 551.001 must require the executor |
|
or administrator to: |
|
(1) sell, on terms determined best by the court, the |
|
portion of a share subject to that section that is in property other |
|
than money; and |
|
(2) on collection of the proceeds of the sale, pay the |
|
proceeds to the comptroller. |
|
(b) An action to recover the proceeds of a sale under this |
|
section is governed by Subchapter B. (Tex. Prob. Code, Sec. 427 |
|
(part).) |
|
Sec. 551.004. COMPENSATION TO EXECUTOR OR ADMINISTRATOR. |
|
The executor or administrator is entitled to reasonable |
|
compensation for services performed under Section 551.003. (Tex. |
|
Prob. Code, Sec. 427 (part).) |
|
Sec. 551.005. COMPTROLLER INDISPENSABLE PARTY. (a) The |
|
comptroller is an indispensable party to a judicial or |
|
administrative proceeding concerning the disposition and handling |
|
of any share of an estate that is or may be payable to the |
|
comptroller under Section 551.001. |
|
(b) The clerk of a court that orders an executor or |
|
administrator to pay funds to the comptroller under Section 551.001 |
|
shall serve on the comptroller, by personal service of citation, a |
|
certified copy of the court order not later than the fifth day after |
|
the date the order is issued. (Tex. Prob. Code, Sec. 428.) |
|
Sec. 551.006. COMPTROLLER'S RECEIPT. (a) An executor or |
|
administrator who pays to the comptroller under this subchapter any |
|
funds of the estate represented by the executor or administrator |
|
shall: |
|
(1) obtain from the comptroller a receipt for the |
|
payment, with official seal attached; and |
|
(2) file the receipt with the clerk of the court that |
|
orders the payment. |
|
(b) The court clerk shall record the comptroller's receipt |
|
in the minutes of the court. (Tex. Prob. Code, Sec. 430.) |
|
[Sections 551.007-551.050 reserved for expansion] |
|
SUBCHAPTER B. RECOVERY OF FUNDS PAID TO STATE |
|
Sec. 551.051. RECOVERY OF FUNDS. If funds of an estate have |
|
been paid to the comptroller under this chapter, an heir or devisee |
|
or an assignee of an heir or devisee may recover the share of the |
|
funds to which the heir, devisee, or assignee is entitled. (Tex. |
|
Prob. Code, Sec. 433(a) (part).) |
|
Sec. 551.052. ACTION FOR RECOVERY. (a) A person claiming |
|
funds under Section 551.051 must bring an action, on or before the |
|
fourth anniversary of the date of the order requiring payment under |
|
this chapter to the comptroller, by filing a petition in the |
|
district court of Travis County against the comptroller. The |
|
petition must set forth: |
|
(1) the plaintiff's right to the funds; and |
|
(2) the amount claimed by the plaintiff. |
|
(b) On the filing of a petition under Subsection (a), the |
|
court clerk shall issue a citation for the comptroller to appear and |
|
represent the interest of this state in the action. The citation |
|
must be served by personal service. |
|
(c) Proceedings in an action brought under this section are |
|
governed by the rules applicable to other civil actions. (Tex. |
|
Prob. Code, Secs. 433(a) (part), (b) (part), (c) (part).) |
|
Sec. 551.053. JUDGMENT. (a) If a plaintiff establishes the |
|
plaintiff's right to funds claimed under this subchapter, the court |
|
shall award a judgment that specifies the amount to which the |
|
plaintiff is entitled. |
|
(b) A certified copy of the judgment constitutes sufficient |
|
authority for the comptroller to pay the judgment. (Tex. Prob. |
|
Code, Sec. 433(c) (part).) |
|
Sec. 551.054. PAYMENT OF COSTS. The costs of an action |
|
brought under this subchapter shall be adjudged against the |
|
plaintiff. The plaintiff may be required to secure the costs. |
|
(Tex. Prob. Code, Sec. 433(d).) |
|
Sec. 551.055. REPRESENTATION OF COMPTROLLER. As the |
|
comptroller elects and with the approval of the attorney general, |
|
the attorney general, the county attorney or criminal district |
|
attorney for the county, or the district attorney for the district |
|
shall represent the comptroller in an action brought under this |
|
subchapter. (Tex. Prob. Code, Sec. 433(b) (part).) |
|
[Sections 551.056-551.100 reserved for expansion] |
|
SUBCHAPTER C. PENALTIES; ENFORCEMENT |
|
Sec. 551.101. LIABILITY OF COURT CLERK; PENALTY. (a) A |
|
court clerk who fails to timely comply with Section 551.005(b) is |
|
liable for a $100 penalty. |
|
(b) The penalty under Subsection (a) shall be recovered |
|
through an action brought in the name of this state, after personal |
|
service of citation, on the information of any resident. Half of |
|
the penalty shall be paid to the informer and the other half to this |
|
state. (Tex. Prob. Code, Sec. 429.) |
|
Sec. 551.102. DAMAGES FOR FAILURE TO MAKE PAYMENTS. (a) An |
|
executor or administrator who fails to pay funds of an estate to the |
|
comptroller as required by an order under Section 551.001 on or |
|
before the 30th day after the date of the order is liable, after |
|
personal service of citation charging that failure and after proof |
|
of the failure, for damages. The damages: |
|
(1) accrue at the rate of five percent of the amount of |
|
the funds per month for each month or fraction of a month after the |
|
30th day after the date of the order that the executor or |
|
administrator fails to make the payment; and |
|
(2) must be paid to the comptroller out of the |
|
executor's or administrator's own estate. |
|
(b) Damages under this section may be recovered in any court |
|
of competent jurisdiction. (Tex. Prob. Code, Sec. 431.) |
|
Sec. 551.103. ENFORCEMENT OF PAYMENT AND DAMAGES; RECOVERY |
|
ON BOND. (a) The comptroller may apply in the name of this state to |
|
the court that issued an order for the payment of funds of an estate |
|
under this chapter to enforce the payment of: |
|
(1) funds the executor or administrator has failed to |
|
pay to the comptroller under the order; and |
|
(2) any damages that have accrued under Section |
|
551.102. |
|
(b) The court shall enforce the payment under Subsection (a) |
|
in the manner prescribed for enforcement of other payment orders. |
|
(c) In addition to the action under Subsection (a), the |
|
comptroller may bring an action in the name of this state against |
|
the executor or administrator and the sureties on the executor's or |
|
administrator's bond for the recovery of the funds ordered to be |
|
paid and any accrued damages. |
|
(d) The county attorney or criminal district attorney for |
|
the county, the district attorney for the district, or the attorney |
|
general, at the election of the comptroller and with the approval of |
|
the attorney general, shall represent the comptroller in all |
|
proceedings under this section, and shall also represent the |
|
interests of this state in all other matters arising under this |
|
code. (Tex. Prob. Code, Sec. 432.) |
|
[Chapters 552-600 reserved for expansion] |
|
SUBTITLE M. DURABLE POWERS OF ATTORNEY |
|
[Chapters 601-650 reserved for expansion] |
|
[Subtitles N-W reserved for expansion] |
|
SUBTITLE X. TEXAS PROBATE CODE: SCOPE, JURISDICTION, AND COURTS |
|
CHAPTER I. GENERAL PROVISIONS |
|
[Reserved for expansion] |
|
SUBTITLE Y. TEXAS PROBATE CODE: INDEPENDENT ADMINISTRATION |
|
CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION |
|
PART 4. INDEPENDENT ADMINISTRATION |
|
[Reserved for expansion] |
|
SUBTITLE Z. TEXAS PROBATE CODE: DURABLE POWERS OF ATTORNEY |
|
[Reserved for expansion] |
|
[Titles 3-24 reserved for expansion] |
|
TITLE 25. TEXAS PROBATE CODE: GUARDIANSHIP |
|
[Reserved for expansion] |
|
SECTION 2. TRANSFER AND REDESIGNATION. Sections 2, 4, 5, |
|
5A, 5B, 5C, 6, and 8, Texas Probate Code, are transferred to Chapter |
|
I, Subtitle X, Title 2, Estates and Guardianships Code, as added by |
|
Section 1 of this Act, and redesignated as Sections 2, 4, 5, 5A, 5B, |
|
5C, 6, and 8, Estates and Guardianships Code, respectively. |
|
SECTION 3. TRANSFER AND REDESIGNATION. Sections 145 |
|
through 154A, Texas Probate Code, are transferred to Part 4, |
|
Chapter VI, Subtitle Y, Title 2, Estates and Guardianships Code, as |
|
added by Section 1 of this Act, and redesignated as Sections 145 |
|
through 154A, Estates and Guardianships Code, respectively. |
|
SECTION 4. TRANSFER AND REDESIGNATION. Chapter XII, Texas |
|
Probate Code, is transferred to Subtitle Z, Title 2, Estates and |
|
Guardianships Code, as added by Section 1 of this Act, and Sections |
|
481 through 506 of that chapter are redesignated as Sections 481 |
|
through 506, Estates and Guardianships Code, respectively. |
|
SECTION 5. TRANSFER AND REDESIGNATION. Chapter XIII, Texas |
|
Probate Code, is transferred to Title 25, Estates and Guardianships |
|
Code, as added by Section 1 of this Act, and redesignated as Chapter |
|
XIII of that title, and Sections 601 through 905 of that chapter are |
|
redesignated as Sections 601 through 905, Estates and Guardianships |
|
Code, respectively. |
|
SECTION 6. CONFORMING AMENDMENT. Section 2, Texas Probate |
|
Code, redesignated as Section 2, Estates and Guardianships Code, by |
|
Section 2 of this Act, is amended to read as follows: |
|
Sec. 2. EFFECTIVE DATE AND APPLICATION. [(a) Effective Date.
|
|
This Code shall take effect and be in force on and after January 1,
|
|
1956. The procedure herein prescribed shall govern all probate
|
|
proceedings in county and probate courts brought after the
|
|
effective date of this Act, and also all further procedure in
|
|
proceedings in probate then pending, except to the extent that in
|
|
the opinion of the court, with respect to proceedings in probate
|
|
then pending, its application in particular proceedings or parts
|
|
thereof would not be feasible or would work injustice, in which
|
|
event the former procedure shall apply.
|
|
[(b) Rights Not Affected. No act done in any proceeding
|
|
commenced before this Code takes effect, and no accrued right,
|
|
shall be impaired by the provisions of this Code. When a right is
|
|
acquired, extinguished, or barred upon the expiration of a
|
|
prescribed period of time which has commenced to run by the
|
|
provision of any statute in force before this Code takes effect,
|
|
such provision shall remain in force and be deemed a part of this
|
|
Code with respect to such right. All things properly done under any
|
|
previously existing statute prior to the taking effect of this Code
|
|
shall be treated as valid. Where citation or other process or
|
|
notice is issued and served in compliance with existing statutes
|
|
prior to the taking effect of this Code, the party upon whom such
|
|
citation or other process has been served shall have the time
|
|
provided for under such previously existing statutes in which to
|
|
comply therewith.
|
|
[(c) Subdivisions Have No Legal Effect. The division of this
|
|
Code into Chapters, Parts, Sections, Subsections, and Paragraphs is
|
|
solely for convenience and shall have no legal effect.
|
|
[(d) Severability. If any provision of this Code, or the
|
|
application thereof to any person or circumstance, is held invalid,
|
|
such invalidity shall not affect other provisions or applications
|
|
of the Code which can be given effect without the invalid provision
|
|
or application, and to this end the provisions of this Code are
|
|
declared to be severable, and the Legislature hereby states that it
|
|
would have enacted such portions of the Code which can lawfully be
|
|
given effect regardless of the possible invalidity of other
|
|
provisions of the Code.] |
|
(e) Nature of Proceeding. The administration of the estate |
|
of a decedent, from the filing of the application for probate and |
|
administration, or for administration, until the decree of final |
|
distribution and the discharge of the last personal representative, |
|
shall be considered as one proceeding for purposes of jurisdiction. |
|
The entire proceeding is a proceeding in rem. |
|
SECTION 7. CONFORMING AMENDMENT. Section 145(q), Texas |
|
Probate Code, redesignated as Section 145(q), Estates and |
|
Guardianships Code, by Section 3 of this Act, is amended to read as |
|
follows: |
|
(q) Absent proof of fraud or collusion on the part of a |
|
judge, no judge may be held civilly liable for the commission of |
|
misdeeds or the omission of any required act of any person, firm, or |
|
corporation designated as an independent executor or independent |
|
administrator under Subsections (c), (d), and (e) of the section. |
|
[Section 36 of this code does not apply to the appointment of an
|
|
independent executor or administrator under Subsection (c), (d), or
|
|
(e) of this section.] |
|
SECTION 8. CONFORMING AMENDMENT. Section 154A(i), Texas |
|
Probate Code, redesignated as Section 154A(i), Estates and |
|
Guardianships Code, by Section 3 of this Act, is amended to read as |
|
follows: |
|
(i) Absent proof of fraud or collusion on the part of a |
|
judge, the judge may not be held civilly liable for the commission |
|
of misdeeds or the omission of any required act of any person, firm, |
|
or corporation designated as a successor independent executor under |
|
this section. [Section 36 of this code does not apply to an
|
|
appointment of a successor independent executor under this
|
|
section.] |
|
SECTION 9. CONFORMING AMENDMENT. Section 490(a), Texas |
|
Probate Code, redesignated as Section 490(a), Estates and |
|
Guardianships Code, by Section 4 of this Act, is amended to read as |
|
follows: |
|
(a) The following form is known as a "statutory durable |
|
power of attorney." A person may use a statutory durable power of |
|
attorney to grant an attorney in fact or agent powers with respect |
|
to a person's property and financial matters. A power of attorney |
|
in substantially the following form has the meaning and effect |
|
prescribed by this chapter. The validity of a power of attorney as |
|
meeting the requirements of a statutory durable power of attorney |
|
is not affected by the fact that one or more of the categories of |
|
optional powers listed in the form are struck or the form includes |
|
specific limitations on or additions to the attorney in fact's or |
|
agent's powers. |
|
The following form is not exclusive, and other forms of power |
|
of attorney may be used. |
|
STATUTORY DURABLE POWER OF ATTORNEY |
|
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND SWEEPING. |
|
THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT, CHAPTER |
|
XII, ESTATES AND GUARDIANSHIPS [TEXAS PROBATE] CODE. IF YOU HAVE |
|
ANY QUESTIONS ABOUT THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. |
|
THIS DOCUMENT DOES NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER |
|
HEALTH-CARE DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF |
|
ATTORNEY IF YOU LATER WISH TO DO SO. |
|
I, __________ (insert your name and address), appoint |
|
__________ (insert the name and address of the person appointed) as |
|
my agent (attorney-in-fact) to act for me in any lawful way with |
|
respect to all of the following powers except for a power that I |
|
have crossed out below. |
|
TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER |
|
WITHHELD. |
|
Real property transactions; |
|
Tangible personal property transactions; |
|
Stock and bond transactions; |
|
Commodity and option transactions; |
|
Banking and other financial institution transactions; |
|
Business operating transactions; |
|
Insurance and annuity transactions; |
|
Estate, trust, and other beneficiary transactions; |
|
Claims and litigation; |
|
Personal and family maintenance; |
|
Benefits from social security, Medicare, Medicaid, or other |
|
governmental programs or civil or military service; |
|
Retirement plan transactions; |
|
Tax matters. |
|
IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL |
|
BE CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY |
|
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO |
|
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I |
|
WERE PERSONALLY PRESENT. |
|
SPECIAL INSTRUCTIONS: |
|
Special instructions applicable to gifts (initial in front of |
|
the following sentence to have it apply): |
|
I grant my agent (attorney in fact) the power to apply my |
|
property to make gifts, except that the amount of a gift to an |
|
individual may not exceed the amount of annual exclusions allowed |
|
from the federal gift tax for the calendar year of the gift. |
|
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS |
|
LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT. |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
________________________________________________________________ |
|
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS |
|
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED. |
|
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE |
|
ALTERNATIVE NOT CHOSEN: |
|
(A) This power of attorney is not affected by my subsequent |
|
disability or incapacity. |
|
(B) This power of attorney becomes effective upon my |
|
disability or incapacity. |
|
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY |
|
IS TO BECOME EFFECTIVE ON THE DATE IT IS EXECUTED. |
|
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT |
|
YOU CHOSE ALTERNATIVE (A). |
|
If Alternative (B) is chosen and a definition of my |
|
disability or incapacity is not contained in this power of |
|
attorney, I shall be considered disabled or incapacitated for |
|
purposes of this power of attorney if a physician certifies in |
|
writing at a date later than the date this power of attorney is |
|
executed that, based on the physician's medical examination of me, |
|
I am mentally incapable of managing my financial affairs. I |
|
authorize the physician who examines me for this purpose to |
|
disclose my physical or mental condition to another person for |
|
purposes of this power of attorney. A third party who accepts this |
|
power of attorney is fully protected from any action taken under |
|
this power of attorney that is based on the determination made by a |
|
physician of my disability or incapacity. |
|
I agree that any third party who receives a copy of this |
|
document may act under it. Revocation of the durable power of |
|
attorney is not effective as to a third party until the third party |
|
receives actual notice of the revocation. I agree to indemnify the |
|
third party for any claims that arise against the third party |
|
because of reliance on this power of attorney. |
|
If any agent named by me dies, becomes legally disabled, |
|
resigns, or refuses to act, I name the following (each to act alone |
|
and successively, in the order named) as successor(s) to that |
|
agent: __________. |
|
Signed this ______ day of __________, [19]_____________ |
|
___________________________ |
|
(your signature) |
|
State of _______________________ |
|
County of ______________________ |
|
This document was acknowledged before me on ____________(date) by |
|
________________________ |
|
(name of principal) |
|
______________________________ |
|
(signature of notarial officer) |
|
(Seal, if any, of notary) _____________________________________ |
|
(printed name) |
|
My commission expires: _____________ |
|
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER |
|
THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL |
|
RESPONSIBILITIES OF AN AGENT. |
|
SECTION 10. REPEALER. (a) Sections 3, 9, 10, 10A, 10B, 10C, |
|
11, 11A, 12, 13, 14, 15, 16, 17, 17A, 18, 19, 20, 21, 22, 23, 24, 25, |
|
26, 27, 28, 29, 31, 32, 33, 34, 34A, 35, 36, 36B, 36C, 36D, 36E, 36F, |
|
37, 37A, 37B, 37C, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 47A, 48, |
|
49, 50, 51, 52, 52A, 53, 53A, 53B, 53C, 53D, 53E, 54, 55, 56, 57, 58, |
|
58a, 58b, 58c, 59, 59A, 60, 61, 62, 63, 67, 68, 69, 69A, 70, 70A, 71, |
|
71A, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 87, 88, |
|
89, 89A, 89B, 89C, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, |
|
102, 103, 104, 105, 105A, 106, 107, 107A, 108, 109, 110, 111, 112, |
|
113, 114, 115, 128, 128A, 128B, 129, 129A, 131A, 132, 133, 134, 135, |
|
137, 138, 139, 140, 141, 142, 143, 155, 156, 160, 168, 176, 177, |
|
178, 179, 180, 181, 182, 183, 186, 187, 188, 189, 190, 192, 194, |
|
195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, |
|
208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 220, 221, |
|
221A, 221B, 222, 222A, 223, 224, 225, 226, 227, 230, 232, 233, 233A, |
|
234, 235, 238, 238A, 239, 240, 241, 242, 243, 244, 245, 249, 250, |
|
251, 252, 253, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, |
|
265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 276, 277, |
|
278, 279, 280, 281, 282, 283, 284, 285, 286, 287, 288, 289, 290, |
|
291, 292, 293, 294, 295, 296, 297, 298, 299, 301, 302, 303, 304, |
|
306, 307, 308, 309, 310, 311, 312, 313, 314, 315, 316, 317, 318, |
|
319, 320, 320A, 321, 322, 322A, 322B, 323, 324, 326, 328, 329, 331, |
|
332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 342, 344, 345, |
|
345A, 346, 347, 348, 349, 350, 351, 352, 353, 354, 355, 356, 357, |
|
358, 359, 360, 361, 362, 363, 364, 365, 366, 367, 368, 369, 370, |
|
371, 372, 373, 374, 375, 377, 378, 378A, 378B, 379, 380, 381, 382, |
|
384, 385, 386, 387, 398A, 399, 400, 401, 402, 403, 404, 405, 405A, |
|
406, 407, 408, 409, 410, 412, 414, 427, 428, 429, 430, 431, 432, |
|
433, 436, 437, 438, 438A, 439, 439A, 440, 441, 442, 443, 444, 445, |
|
446, 447, 448, 449, 450, 451, 452, 453, 454, 455, 456, 457, 458, |
|
459, 460, 461, 462, 471, 472, and 473, Texas Probate Code, are |
|
repealed. |
|
(b) Section 248, Texas Probate Code, as amended by Chapters |
|
701 (S.B. 347) and 765 (H.B. 3434), Acts of the 79th Legislature, |
|
Regular Session, 2005, is repealed. |
|
SECTION 11. LEGISLATIVE INTENT. This Act is enacted under |
|
Section 43, Article III, Texas Constitution. This Act is intended |
|
as a recodification only, and no substantive change in law is |
|
intended by this Act. |
|
SECTION 12. EFFECTIVE DATE. This Act takes effect January |
|
1, 2014. |