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A BILL TO BE ENTITLED
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AN ACT
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relating to the family allowance, treatment of exempt property, and |
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an allowance in lieu of exempt property in the administration of a |
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decedent's estate. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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ARTICLE 1. CHANGES TO TEXAS PROBATE CODE |
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SECTION 1.01. Sections 139, 140, and 143, Texas Probate |
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Code, are amended to read as follows: |
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Sec. 139. APPLICATION FOR ORDER OF NO ADMINISTRATION. If |
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the value of the entire assets of an estate, not including homestead |
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and exempt property, does not exceed the amount to which the |
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surviving spouse, [and] minor children, and adult incapacitated |
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children of the decedent are entitled as a family allowance, there |
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may be filed by or on behalf of the surviving spouse, [or] minor |
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children, or adult incapacitated children an application in any |
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court of proper venue for administration, or, if an application for |
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the appointment of a personal representative has been filed but not |
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yet granted, then in the court where such application has been |
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filed, requesting the court to make a family allowance and to enter |
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an order that no administration shall be necessary. The |
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application shall state the names of the heirs or devisees, a list |
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of creditors of the estate together with the amounts of the claims |
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so far as the same are known, and a description of all real and |
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personal property belonging to the estate, together with the |
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estimated value thereof according to the best knowledge and |
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information of the applicant, and the liens and encumbrances |
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thereon, with a prayer that the court make a family allowance and |
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that, if the entire assets of the estate, not including homestead |
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and exempt property, are thereby exhausted, the same be set aside to |
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the surviving spouse, [and] minor children, and adult incapacitated |
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children, as in the case of other family allowances provided for by |
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this Code. |
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Sec. 140. HEARING AND ORDER UPON THE APPLICATION. Upon the |
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filing of an application for no administration such as that |
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provided for in the preceding Section, the court may hear the same |
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forthwith without notice, or at such time and upon such notice as |
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the court requires. Upon the hearing of the application, if the |
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court finds that the facts contained therein are true and that the |
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expenses of last illness, funeral charges, and expenses of the |
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proceeding have been paid or secured, the court shall make a family |
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allowance and, if the entire assets of the estate, not including |
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homestead and exempt property, are thereby exhausted, shall order |
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that no administration be had of the estate and shall assign to the |
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surviving spouse, [and] minor children, and adult incapacitated |
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children the whole of the estate, in the same manner and with the |
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same effect as provided in this Code for the making of family |
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allowances to the surviving spouse, [and] minor children, and adult |
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incapacitated children. |
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Sec. 143. SUMMARY PROCEEDINGS FOR SMALL ESTATES AFTER |
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PERSONAL REPRESENTATIVE APPOINTED. Whenever, after the inventory, |
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appraisement, and list of claims has been filed by a personal |
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representative, it is established that the estate of a decedent, |
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exclusive of the homestead and exempt property and family allowance |
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to the surviving spouse, [and] minor children, and adult |
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incapacitated children, does not exceed the amount sufficient to |
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pay the claims of Classes One to Four, inclusive, as claims are |
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hereinafter classified, the personal representative shall, upon |
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order of the court, pay the claims in the order provided and to the |
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extent permitted by the assets of the estate subject to the payment |
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of such claims, and thereafter present the personal |
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representative's [his] account with an application for the |
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settlement and allowance thereof. Thereupon the court, with or |
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without notice, may adjust, correct, settle, allow or disallow such |
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account, and, if the account is settled and allowed, may decree |
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final distribution, discharge the personal representative, and |
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close the administration. |
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SECTION 1.02. Sections 271(a) and (b), Texas Probate Code, |
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are amended to read as follows: |
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(a) Unless an affidavit is filed under Subsection (b) of |
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this section, immediately after the inventory, appraisement, and |
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list of claims have been approved, the court shall, by order, set |
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apart: |
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(1) the homestead for the use and benefit of the |
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surviving spouse and minor children; and |
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(2) all other property of the estate that is exempt |
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from execution or forced sale by the constitution and laws of this |
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state for the use and benefit of the surviving spouse, [and] minor |
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children, [and] unmarried adult children remaining with the family |
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of the deceased, and each other adult child who is incapacitated. |
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(b) Before the approval of the inventory, appraisement, and |
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list of claims: |
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(1) a surviving spouse or any person who is authorized |
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to act on behalf of minor children of the deceased may apply to the |
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court to have exempt property, including the homestead, set aside |
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by filing an application and a verified affidavit listing all of the |
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property that the applicant claims is exempt; and |
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(2) any unmarried adult child [children] remaining |
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with the family of the deceased, any other adult child who is |
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incapacitated, or a person who is authorized to act on behalf of the |
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adult incapacitated child may apply to the court to have all exempt |
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property other than the homestead set aside by filing an |
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application and a verified affidavit listing all of the other |
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property that the applicant claims is exempt. |
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SECTION 1.03. Sections 272, 273, 274, 275, 276, 286, 287, |
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288, 290, 291, and 292, Texas Probate Code, are amended to read as |
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follows: |
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Sec. 272. TO WHOM DELIVERED. The exempt property set apart |
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to the surviving spouse and children shall be delivered by the |
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executor or administrator without delay as follows: (a) If there |
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be a surviving spouse and no children, or if the children, including |
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any adult incapacitated children, be the children of the surviving |
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spouse, the whole of such property shall be delivered to the |
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surviving spouse. (b) If there be children and no surviving |
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spouse, such property, except the homestead, shall be delivered to |
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the guardian of each of those [such] children who is a minor, to |
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each of those children who is of lawful age and not incapacitated, |
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and to the guardian of each of those children who is an |
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incapacitated adult or to another appropriate person, as determined |
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by the court, on behalf of the adult incapacitated child if there is |
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no guardian [if they be of lawful age, or to their guardian if they
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be minors]. (c) If there be children of the deceased of whom the |
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surviving spouse is not the parent, the share of such children in |
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such exempted property, except the homestead, shall be delivered to |
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the guardian of each of those [such] children who is a minor, to |
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each of those children who is of lawful age and not incapacitated, |
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and to the guardian of each of those children who is an |
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incapacitated adult or to another appropriate person, as determined |
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by the court, on behalf of the adult incapacitated child if there is |
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no guardian [if they be of lawful age, or to their guardian, if they
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be minors]. (d) In all cases, the homestead shall be delivered to |
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the surviving spouse, if there be one, and if there be no surviving |
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spouse, to the guardian of the minor children. |
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Sec. 273. ALLOWANCE IN LIEU OF EXEMPT PROPERTY. In case |
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there should not be among the effects of the deceased all or any of |
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the specific articles exempted from execution or forced sale by the |
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Constitution and laws of this state, the court shall make a |
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reasonable allowance in lieu thereof, to be paid to such surviving |
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spouse and children, or such of them as there are, as hereinafter |
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provided. The allowance in lieu of a homestead shall in no case |
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exceed $15,000 and the allowance for other exempted property shall |
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in no case exceed $5,000, exclusive of the allowance for the support |
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of the surviving spouse, [and] minor children, and adult |
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incapacitated children which is hereinafter provided for. |
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Sec. 274. HOW ALLOWANCE PAID. The allowance made in lieu of |
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any of the exempted property shall be paid either in money out of |
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the funds of the estate that come to the hands of the executor or |
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administrator, or in any property of the deceased that such |
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surviving spouse, [or] children who are [, if they be] of lawful |
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age, guardian of children who are [or their guardian if they be] |
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minors, or guardian of each adult incapacitated child or other |
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appropriate person, as determined by the court, on behalf of the |
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adult incapacitated child if there is no guardian, shall choose to |
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take at the appraisement, or a part thereof, or both, as they shall |
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select; provided, however, that property specifically bequeathed |
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or devised to another may be so taken, or may be sold to raise funds |
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for the allowance as hereinafter provided, only if the other |
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available property shall be insufficient to provide the allowance. |
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Sec. 275. TO WHOM ALLOWANCE PAID. The allowance in lieu of |
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exempt property shall be paid by the executor or administrator, as |
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follows: (a) If there be a surviving spouse and no children, or if |
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all the children, including any adult incapacitated children, be |
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the children of the surviving spouse, the whole shall be paid to |
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such surviving spouse. |
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(b) If there be children and no surviving spouse, the whole |
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shall be [paid to and] equally divided among them and each of their |
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shares shall be paid as follows: |
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(1) if the child is [they be] of lawful age and not |
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incapacitated, to the child; |
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(2) [, but] if the child is a minor, [any of such
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children are minors, their shares shall be paid] to the child's |
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[their] guardian; or |
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(3) if the child is an incapacitated adult, to the |
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adult incapacitated child's guardian or another appropriate |
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person, as determined by the court, on behalf of the adult |
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incapacitated child if there is no guardian [guardians]. |
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(c) If there be a surviving spouse, and children of the |
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deceased, some of whom are not children of the surviving spouse, the |
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surviving spouse shall receive one-half of the whole, plus the |
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shares of the children of whom the survivor is the parent, and the |
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remaining shares shall be paid with respect to each of the children |
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of whom the survivor is not the parent as follows: |
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(1) if the child is an adult who is not incapacitated, |
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to the child; |
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(2) if the child is a minor [or, if they are minors], |
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to the child's [their] guardian; or |
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(3) if the child is an incapacitated adult, to the |
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adult incapacitated child's guardian or another appropriate |
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person, as determined by the court, on behalf of the adult |
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incapacitated child if there is no guardian. |
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Sec. 276. SALE TO RAISE ALLOWANCE. If there be no property |
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of the deceased that such surviving spouse or children are willing |
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to take for such allowance, or not a sufficiency, and there be no |
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funds, or not sufficient funds, of the estate in the hands of such |
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executor or administrator to pay such allowance, or any part |
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thereof, the court, on the application in writing of such surviving |
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spouse and children, or of a person authorized to represent any of |
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those children, shall order a sale of so much of the estate for cash |
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as will be sufficient to raise the amount of such allowance, or a |
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part thereof, as the case requires. |
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Sec. 286. FAMILY ALLOWANCE TO SURVIVING SPOUSES, [AND] |
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MINORS, AND ADULT INCAPACITATED CHILDREN. (a) Unless an affidavit |
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is filed under Subsection (b) of this section, immediately after |
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the inventory, appraisement, and list of claims have been approved, |
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the court shall fix a family allowance for the support of the |
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surviving spouse, [and] minor children, and adult incapacitated |
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children of the deceased. |
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(b) Before the approval of the inventory, appraisement, and |
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list of claims, a surviving spouse or any person who is authorized |
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to act on behalf of minor children or adult incapacitated children |
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of the deceased may apply to the court to have the court fix the |
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family allowance by filing an application and a verified affidavit |
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describing the amount necessary for the maintenance of the |
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surviving spouse, [and] minor children, and adult incapacitated |
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children for one year after the date of the death of the decedent |
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and describing the spouse's separate property and any property that |
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minor children or adult incapacitated children have in their own |
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right. The applicant bears the burden of proof by a preponderance |
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of the evidence at any hearing on the application. The court shall |
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fix a family allowance for the support of the surviving spouse, |
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[and] minor children, and adult incapacitated children of the |
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deceased. |
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Sec. 287. AMOUNT OF FAMILY ALLOWANCE. Such allowance shall |
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be of an amount sufficient for the maintenance of such surviving |
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spouse, [and] minor children, and adult incapacitated children for |
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one year from the time of the death of the testator or intestate. |
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The allowance shall be fixed with regard to the facts or |
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circumstances then existing and those anticipated to exist during |
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the first year after such death. The allowance may be paid either |
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in a lump sum or in installments, as the court shall order. |
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Sec. 288. WHEN FAMILY ALLOWANCE NOT MADE. No such allowance |
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shall be made for the surviving spouse when the survivor has |
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separate property adequate to the survivor's maintenance; nor shall |
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such allowance be made for the minor children or adult |
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incapacitated children when they have property in their own right |
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adequate to their maintenance. |
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Sec. 290. FAMILY ALLOWANCE PREFERRED. The family allowance |
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made for the support of the surviving spouse, [and] minor children, |
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and adult incapacitated children of the deceased shall be paid in |
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preference to all other debts or charges against the estate, except |
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Class 1 claims. |
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Sec. 291. TO WHOM FAMILY ALLOWANCE PAID. The executor or |
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administrator shall apportion and pay the family allowance: |
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(a) To the surviving spouse, if there be one, for the use of |
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the survivor and the minor children and adult incapacitated |
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children, if such children be the survivor's. |
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(b) If the surviving spouse is not the parent of such minor |
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children and adult incapacitated children, or of some of them, the |
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portion of such allowance necessary for the support of such minor |
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child or children of which the survivor is not the parent shall be |
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paid to the guardian or guardians of such child or children who are |
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minors, and to the guardian of each adult incapacitated child or |
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another appropriate person, as determined by the court, on behalf |
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of the adult incapacitated child if there is no guardian. |
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(c) If there be no surviving spouse, the allowance to the |
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minor child or children shall be paid to the guardian or guardians |
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of such minor child or children, and the allowance to each adult |
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incapacitated child shall be paid to the guardian of the adult |
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incapacitated child or another appropriate person, as determined by |
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the court, on behalf of the adult incapacitated child if there is no |
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guardian. |
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(d) If there be a surviving spouse and no minor child or |
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adult incapacitated child [children], the entire allowance shall be |
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paid to the surviving spouse. |
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Sec. 292. MAY TAKE PROPERTY FOR FAMILY ALLOWANCE. The |
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surviving spouse, [or] the guardian of the minor children, or the |
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guardian of an adult incapacitated child or another appropriate |
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person, as determined by the court, on behalf of the adult |
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incapacitated child if there is no guardian, as the case may be, |
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shall have the right to take in payment of such allowance, or any |
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part thereof, any of the personal property of the estate at its |
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appraised value as shown by the appraisement; provided, however, |
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that property specifically devised or bequeathed to another may be |
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so taken, or may be sold to raise funds for the allowance as |
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hereinafter provided, only if the other available property shall be |
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insufficient to provide the allowance. |
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SECTION 1.04. The changes in law made by this article apply |
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only to the estate of a decedent who dies on or after the effective |
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date of this Act. The estate of a decedent who dies before the |
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effective date of this Act is governed by the law in effect on the |
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date of the decedent's death, and the former law is continued in |
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effect for that purpose. |
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ARTICLE 2. CHANGES TO ESTATES CODE |
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SECTION 2.01. Sections 353.051(a) and (b), Estates Code, as |
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effective January 1, 2014, are amended to read as follows: |
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(a) Unless an application and verified affidavit are filed |
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as provided by Subsection (b), immediately after the inventory, |
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appraisement, and list of claims of an estate are approved, the |
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court by order shall set aside: |
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(1) the homestead for the use and benefit of the |
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decedent's surviving spouse and minor children; and |
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(2) all other estate property that is exempt from |
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execution or forced sale by the constitution and laws of this state |
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for the use and benefit of the decedent's: |
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(A) surviving spouse and minor children; [and] |
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(B) unmarried adult children remaining with the |
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decedent's family; and |
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(C) each other adult child who is incapacitated. |
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(b) Before the inventory, appraisement, and list of claims |
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of an estate are approved: |
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(1) the decedent's surviving spouse or any other |
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person authorized to act on behalf of the decedent's minor children |
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may apply to the court to have exempt property, including the |
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homestead, set aside by filing an application and a verified |
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affidavit listing all property that the applicant claims is exempt; |
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and |
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(2) any of the decedent's unmarried adult children |
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remaining with the decedent's family, any other adult child of the |
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decedent who is incapacitated, or a person who is authorized to act |
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on behalf of the adult incapacitated child may apply to the court to |
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have all exempt property, other than the homestead, set aside by |
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filing an application and a verified affidavit listing all |
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property, other than the homestead, that the applicant claims is |
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exempt. |
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SECTION 2.02. Sections 353.052(b), (c), and (d), Estates |
|
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Code, as effective January 1, 2014, are amended to read as follows: |
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(b) If there is a surviving spouse and there are no children |
|
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of the decedent, or if all the children, including any adult |
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incapacitated children, of the decedent are also the children of |
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the surviving spouse, the executor or administrator shall deliver |
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all exempt property to the surviving spouse. |
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(c) If there is a surviving spouse and there are children of |
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the decedent who are not also children of the surviving spouse, the |
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executor or administrator shall deliver the share of those children |
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in exempt property, other than the homestead, to: |
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(1) the children, if the children are of legal age; |
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[or] |
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(2) the children's guardian, if the children are |
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minors; or |
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(3) the guardian of each of the children who is an |
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incapacitated adult, or to another appropriate person, as |
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determined by the court, on behalf of the adult incapacitated child |
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if there is no guardian. |
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(d) If there is no surviving spouse and there are children |
|
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of the decedent, the executor or administrator shall deliver exempt |
|
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property, other than the homestead, to: |
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(1) the children, if the children are of legal age; |
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[or] |
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(2) the children's guardian, if the children are |
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minors; or |
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(3) the guardian of each of the children who is an |
|
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incapacitated adult, or to another appropriate person, as |
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determined by the court, on behalf of the adult incapacitated child |
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if there is no guardian. |
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SECTION 2.03. Section 353.053(b), Estates Code, as |
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effective January 1, 2014, is amended to read as follows: |
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(b) The allowance in lieu of a homestead may not exceed |
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$15,000, and the allowance in lieu of other exempt property may not |
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|
exceed $5,000, excluding the family allowance for the support of |
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the surviving spouse, [and] minor children, and adult incapacitated |
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children provided by Subchapter C. |
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|
SECTION 2.04. Sections 353.054(b), (c), and (d), Estates |
|
|
Code, as effective January 1, 2014, are amended to read as follows: |
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(b) If there is a surviving spouse and there are no children |
|
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of the decedent, or if all the children, including any adult |
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incapacitated children, of the decedent are also the children of |
|
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the surviving spouse, the executor or administrator shall pay the |
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entire allowance to the surviving spouse. |
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(c) If there is a surviving spouse and there are children of |
|
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the decedent who are not also children of the surviving spouse, the |
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executor or administrator shall pay the surviving spouse one-half |
|
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of the entire allowance plus the shares of the decedent's children |
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of whom the surviving spouse is the parent. The remaining shares |
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must be paid to: |
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(1) the decedent's adult children of whom the |
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surviving spouse is not a parent and who are not incapacitated; [or] |
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(2) the guardian of the children of whom the surviving |
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spouse is not a parent and who [described by Subdivision (1), if
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those children] are minors; or |
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(3) the guardian or another appropriate person, as |
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determined by the court, if there is no guardian, of each child who |
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is an incapacitated adult. |
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(d) If there is no surviving spouse and there are children |
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of the decedent, the executor or administrator shall divide the |
|
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entire allowance equally among the children and pay the children's |
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shares to: |
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(1) each of those [the] children who are adults and who |
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are not incapacitated; |
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(2) the guardian of each [, if the children are of
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legal age, or, if any] of those [the] children who are minors; or |
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(3) the guardian or another appropriate person, as |
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determined by the court, if there is no guardian, of each of those |
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children who is an incapacitated adult[, pay the minor children's
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shares to the guardian of the minor children]. |
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SECTION 2.05. Section 353.055(a), Estates Code, as |
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|
effective January 1, 2014, is amended to read as follows: |
|
|
(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, or by the guardian of each adult incapacitated child or |
|
|
other appropriate person, as determined by the court, if there is no |
|
|
guardian, 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). |
|
|
SECTION 2.06. Section 353.056(a), Estates Code, as |
|
|
effective January 1, 2014, is amended to read as follows: |
|
|
(a) On the written application of the decedent's surviving |
|
|
spouse and children, or of a person authorized to represent any of |
|
|
those 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. |
|
|
SECTION 2.07. Section 353.101, Estates Code, as effective |
|
|
January 1, 2014, is amended to read as follows: |
|
|
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, and adult incapacitated 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 or adult incapacitated 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, and the |
|
|
decedent's adult incapacitated 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 or adult incapacitated |
|
|
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, and adult |
|
|
incapacitated 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; or |
|
|
(3) any of the decedent's adult incapacitated |
|
|
children, if the adult incapacitated child has property in the |
|
|
person's own right adequate for the person's maintenance. |
|
|
SECTION 2.08. Section 353.102(a), Estates Code, as |
|
|
effective January 1, 2014, is amended to read as follows: |
|
|
(a) The amount of the family allowance must be sufficient |
|
|
for the maintenance of the decedent's surviving spouse, [and] minor |
|
|
children, and adult incapacitated children for one year from the |
|
|
date of the decedent's death. |
|
|
SECTION 2.09. Section 353.104, Estates Code, as effective |
|
|
January 1, 2014, is amended to read as follows: |
|
|
Sec. 353.104. PREFERENCE OF FAMILY ALLOWANCE. The family |
|
|
allowance made for the support of the decedent's surviving spouse, |
|
|
[and] minor children, and adult incapacitated children shall be |
|
|
paid in preference to all other debts of or charges against the |
|
|
estate, other than Class 1 claims. |
|
|
SECTION 2.10. Sections 353.105(b), (c), (d), and (e), |
|
|
Estates Code, as effective January 1, 2014, are amended to read as |
|
|
follows: |
|
|
(b) If there is a surviving spouse and there are no minor |
|
|
children or adult incapacitated 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 and adult incapacitated 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, |
|
|
and adult incapacitated children. |
|
|
(d) If there is a surviving spouse and some or all of the |
|
|
minor children or adult incapacitated children of the decedent are |
|
|
not also children of the surviving spouse, the executor or |
|
|
administrator shall pay: |
|
|
(1) the portion of the entire family allowance |
|
|
necessary for the support of those minor children to the guardian of |
|
|
those children; and |
|
|
(2) the portion of the entire family allowance |
|
|
necessary for the support of each of those adult incapacitated |
|
|
children to the guardian of the adult incapacitated child or |
|
|
another appropriate person, as determined by the court, on behalf |
|
|
of the adult incapacitated child if there is no guardian. |
|
|
(e) If there is no surviving spouse and there are minor |
|
|
children or adult incapacitated children of the decedent, the |
|
|
executor or administrator shall pay the family allowance: |
|
|
(1) for the minor children, to the guardian of those |
|
|
children; and |
|
|
(2) for each adult incapacitated child, to the |
|
|
guardian of the adult incapacitated child or another appropriate |
|
|
person, as determined by the court, on behalf of the adult |
|
|
incapacitated child if there is no guardian. |
|
|
SECTION 2.11. The heading to Section 353.106, Estates Code, |
|
|
as effective January 1, 2014, is amended to read as follows: |
|
|
Sec. 353.106. SURVIVING SPOUSE, [OR] MINOR CHILDREN, OR |
|
|
ADULT INCAPACITATED CHILDREN MAY TAKE PERSONAL PROPERTY FOR FAMILY |
|
|
ALLOWANCE. |
|
|
SECTION 2.12. Section 353.106(a), Estates Code, as |
|
|
effective January 1, 2014, is amended to read as follows: |
|
|
(a) A decedent's surviving spouse, [or] the guardian of the |
|
|
decedent's minor children, or the guardian of an adult |
|
|
incapacitated child of the decedent or another appropriate person, |
|
|
as determined by the court, on behalf of the adult incapacitated |
|
|
child if there is no guardian, 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. |
|
|
SECTION 2.13. Section 353.107(a), Estates Code, as |
|
|
effective January 1, 2014, is amended to read as follows: |
|
|
(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, or the guardian of the decedent's adult incapacitated |
|
|
child or other appropriate person acting on behalf of the adult |
|
|
incapacitated child 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. |
|
|
SECTION 2.14. Section 354.001(a), Estates Code, as |
|
|
effective January 1, 2014, is amended to read as follows: |
|
|
(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, and adult |
|
|
incapacitated 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. |
|
|
SECTION 2.15. Sections 451.001(a) and (d), Estates Code, as |
|
|
effective January 1, 2014, are amended to read as follows: |
|
|
(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, and adult |
|
|
incapacitated 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, or adult incapacitated |
|
|
children requesting a court to make a family allowance and to enter |
|
|
an order that no administration of the decedent's estate is |
|
|
necessary. |
|
|
(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, and adult incapacitated |
|
|
children, as with other family allowances provided for by |
|
|
Subchapter C, Chapter 353. |
|
|
SECTION 2.16. Section 451.002(b), Estates Code, as |
|
|
effective January 1, 2014, is amended to read as follows: |
|
|
(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, and adult incapacitated 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 adult incapacitated children; and |
|
|
(B) order that there shall be no administration |
|
|
of the estate. |
|
|
SECTION 2.17. The changes in law made to Sections 139, 140, |
|
|
143, 271(a) and (b), 272, 273, 274, 275, 276, 286, 287, 288, 290, |
|
|
291, and 292, Texas Probate Code, by Article 1 of this Act are |
|
|
repealed. |
|
|
SECTION 2.18. This article takes effect January 1, 2014. |
|
|
ARTICLE 3. EFFECTIVE DATE |
|
|
SECTION 3.01. Except as otherwise provided by this Act, |
|
|
this Act takes effect September 1, 2011. |