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A BILL TO BE ENTITLED
|
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AN ACT
|
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relating to decedents' estates and certain posthumous gifts. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 22.004(a), Estates Code, is amended to |
|
read as follows: |
|
(a) "Child" includes an adopted child, regardless of |
|
whether the adoption occurred through: |
|
(1) an existing or former statutory procedure; or |
|
(2) an equitable adoption or acts of estoppel. |
|
SECTION 2. Section 33.001, Estates Code, is amended to read |
|
as follows: |
|
Sec. 33.001. PROBATE OF WILLS AND GRANTING OF LETTERS |
|
TESTAMENTARY AND OF ADMINISTRATION. (a) Venue for a probate |
|
proceeding to admit a will to probate or for the granting of letters |
|
testamentary or of administration is: |
|
(1) in the county in which the decedent resided, if the |
|
decedent had a domicile or fixed place of residence in this state; |
|
or |
|
(2) with respect to a decedent who did not have a |
|
domicile or fixed place of residence in this state: |
|
(A) if the decedent died in this state, in the |
|
county in which: |
|
(i) the decedent's principal estate was |
|
located at the time of the decedent's death; or |
|
(ii) the decedent died; or |
|
(B) if the decedent died outside of this state: |
|
(i) in any county in this state in which the |
|
decedent's nearest of kin reside; or |
|
(ii) if there is no next of kin of the |
|
decedent in this state, in the county in which the decedent's |
|
principal estate was located at the time of the decedent's death. |
|
(b) For purposes of this section: |
|
(1) the decedent's next of kin: |
|
(A) is the decedent's surviving spouse, or if |
|
there is no surviving spouse, other relatives of the decedent |
|
within the third degree by consanguinity; and |
|
(B) includes a person who legally adopted the |
|
decedent or has been legally adopted by the decedent and that |
|
person's descendants; and |
|
(2) the decedent's nearest of kin is determined in |
|
accordance with order of descent, with the decedent's next of kin |
|
who is nearest in order of descent first, and so on. |
|
SECTION 3. Sections 112.103(a) and (b), Estates Code, are |
|
amended to read as follows: |
|
(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 accordance with Section 51.203 or the Texas Rules of Civil |
|
Procedure [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 accordance with Section 51.203 or the Texas Rules of |
|
Civil Procedure [the same manner and under the same rules as
|
|
depositions in other civil actions]. |
|
SECTION 4. Sections 113.252(a), (b), and (c), Estates Code, |
|
are amended to read as follows: |
|
(a) A multiple-party account is not effective against: |
|
(1) an estate of a deceased party to transfer to a |
|
survivor: |
|
(A) amounts equal to the amounts of estate taxes |
|
and expenses charged under Subchapter A, Chapter 124, to the |
|
deceased party, P.O.D. payee, or beneficiary of the account; or |
|
(B) if other assets of the estate are |
|
insufficient, amounts needed to pay debts, other 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 or causes a payment to be made |
|
to another person 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, expenses, 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 or caused to be paid to another |
|
person from the multiple-party account after the deceased party's |
|
death. |
|
(c) Any [A] proceeding by the personal representative of a |
|
deceased party to assert liability under Subsection (b)[:
|
|
[(1) may only be commenced if the personal
|
|
representative receives a written demand by a surviving spouse, a
|
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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. |
|
SECTION 5. Section 123.052(a), Estates Code, is amended to |
|
read as follows: |
|
(a) The dissolution of the marriage revokes a provision in a |
|
trust instrument that was executed by a divorced individual as |
|
settlor before the divorced individual's marriage was dissolved and |
|
that: |
|
(1) is a revocable disposition or appointment of |
|
property made to the divorced individual's former spouse or any |
|
relative of the former spouse who is not a relative of the divorced |
|
individual; |
|
(2) revocably confers a general or special power of |
|
appointment on the divorced individual's former spouse or any |
|
relative of the former spouse who is not a relative of the divorced |
|
individual; or |
|
(3) revocably nominates the divorced individual's |
|
former spouse or any relative of the former spouse who is not a |
|
relative of the divorced individual to serve: |
|
(A) as a personal representative, trustee, |
|
conservator, agent, or guardian; or |
|
(B) in another fiduciary or representative |
|
capacity. |
|
SECTION 6. Subchapter B, Chapter 123, Estates Code, is |
|
amended by adding Section 123.056 to read as follows: |
|
Sec. 123.056. CERTAIN TRUSTS WITH DIVORCED INDIVIDUALS AS |
|
JOINT SETTLORS. (a) This section applies only to a trust created |
|
under a trust instrument that: |
|
(1) was executed by two married individuals as |
|
settlors whose marriage to each other is subsequently dissolved; |
|
and |
|
(2) includes a provision described by Section |
|
123.052(a). |
|
(b) On the death of one of the divorced individuals who is a |
|
settlor of a trust to which this section applies, the trustee shall |
|
divide the trust into two trusts, each of which shall be composed of |
|
the property attributable to the contributions of only one of the |
|
divorced individuals. |
|
(c) An action authorized in a trust instrument described by |
|
Subsection (a) that requires the actions of both divorced |
|
individuals may be taken with respect to a trust established in |
|
accordance with Subsection (b) from the surviving divorced |
|
individual's contributions solely by that divorced individual. |
|
(d) The provisions of this subchapter apply independently |
|
to each trust established in accordance with Subsection (b) as if |
|
the divorced individual from whose contributions the trust was |
|
established had been the only settlor to execute the trust |
|
instrument described by Subsection (a). |
|
(e) This section 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 two divorced individuals before their marriage was |
|
dissolved; or |
|
(3) an express provision of a contract relating to the |
|
division of the marital estate entered into between the two |
|
divorced individuals before, during, or after their marriage. |
|
SECTION 7. Section 123.151, Estates Code, is amended by |
|
amending Subsections (a) and (b) and adding Subsections (c-1) and |
|
(d-1) to read as follows: |
|
(a) In this section: |
|
(1) "Beneficiary," "multiple-party account," "party," |
|
"P.O.D. account," and "P.O.D. payee" have the meanings assigned by |
|
Chapter 113. |
|
(2) "Public retirement system" has the meaning |
|
assigned by Section 802.001, Government Code. |
|
(3) "Relative" has the meaning assigned by Section |
|
123.051. |
|
(4) "Survivorship agreement" means an agreement |
|
described by Section 113.151. |
|
(b) If[, after] a decedent established [designates a spouse
|
|
or a relative of a spouse who is not a relative of the decedent as a
|
|
P.O.D. payee or beneficiary, including alternative P.O.D. payee or
|
|
beneficiary, on] a P.O.D. account or other multiple-party account |
|
and[,] the decedent's marriage was later [is] dissolved by divorce, |
|
annulment, or a declaration that the marriage is void, any payable |
|
on request after death [the] designation provision or provision of |
|
a survivorship agreement with respect to that account in favor of |
|
the decedent's former spouse or a relative of the former spouse who |
|
is not a relative of the decedent [on the account] is not effective |
|
as to that [the former] spouse or [the former spouse's] relative |
|
unless: |
|
(1) the court decree dissolving the marriage: |
|
(A) designates the former spouse or the former |
|
spouse's relative as the P.O.D. payee or beneficiary; or |
|
(B) reaffirms the survivorship agreement or the |
|
relevant provision of the survivorship agreement in favor of the |
|
former spouse or the former spouse's relative; |
|
(2) after the marriage was dissolved, the decedent: |
|
(A) redesignated the former spouse or the former |
|
spouse's relative as the P.O.D payee or beneficiary; or |
|
(B) reaffirmed the survivorship agreement in |
|
writing [after the marriage was dissolved]; or |
|
(3) the former spouse or the former spouse's relative |
|
is designated to receive, or under the survivorship agreement would |
|
receive, the proceeds or benefits in trust for, on behalf of, or for |
|
the benefit of a child or dependent of either the decedent or the |
|
former spouse. |
|
(c-1) If the provision of a survivorship agreement is not |
|
effective under Subsection (b), for purposes of determining the |
|
disposition of the decedent's interest in the account, the former |
|
spouse or former spouse's relative who would have received the |
|
decedent's interest if the provision were effective is treated as |
|
if that spouse or relative predeceased the decedent. |
|
(d-1) A financial institution is not liable for payment of |
|
an account to a former spouse or the former spouse's relative as a |
|
party to the account, notwithstanding the fact that a designation |
|
or provision of a survivorship agreement in favor of that person is |
|
not effective under Subsection (b). |
|
SECTION 8. Section 124.001(3), Estates Code, is amended to |
|
read as follows: |
|
(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 former 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 2601 |
|
or 2701(d)(1)(A), Internal Revenue Code of 1986 (26 U.S.C. Section |
|
2601 or 2701(d)). |
|
SECTION 9. Section 201.054, Estates Code, is amended by |
|
adding Subsection (e) to read as follows: |
|
(e) For purposes of this section, "adopted child" means a |
|
child: |
|
(1) adopted through an existing or former statutory |
|
procedure; or |
|
(2) considered by a court to be equitably adopted or |
|
adopted by acts of estoppel. |
|
SECTION 10. The heading to Section 202.052, Estates Code, |
|
is amended to read as follows: |
|
Sec. 202.052. SERVICE OF CITATION BY PUBLICATION [WHEN
|
|
RECIPIENT'S NAME OR ADDRESS IS NOT ASCERTAINABLE]. |
|
SECTION 11. Section 202.057(a), Estates Code, is amended to |
|
read as follows: |
|
(a) A person who files an application under Section 202.005 |
|
shall file with the court: |
|
(1) a copy of any citation required by this subchapter |
|
and the proof of delivery of service of the citation; and |
|
(2) an affidavit sworn to by the applicant or a |
|
certificate signed by the applicant's attorney stating: |
|
(A) that the citation was served as required by |
|
this subchapter; |
|
(B) the name of each person to whom the citation |
|
was served, if the person's name is not shown on the proof of |
|
delivery; and |
|
(C) if service of citation is waived under |
|
Section 202.056: |
|
(i) the name of each person who waived |
|
citation under that section; and |
|
(ii) if citation is waived under Section |
|
202.056(b)(1), the name of the distributee and the representative |
|
capacity of the person who waived citation required to be served on |
|
the distributee [Section 202.056]. |
|
SECTION 12. Section 205.001, Estates Code, is amended to |
|
read as follows: |
|
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 on the date of the |
|
affidavit described by Subsection (4), excluding homestead and |
|
exempt property, does not exceed $75,000 [$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. |
|
SECTION 13. Section 251.001, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 14. Section 251.002, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 15. Section 251.051, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 16. Section 251.103, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 17. Sections 251.104(c), (d), and (e), Estates |
|
Code, are amended to read as follows: |
|
(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) |
|
SECTION 18. Section 251.107, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 19. Section 252.152, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 20. Section 255.151, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 21. Section 255.401, Estates Code, is amended by |
|
amending Subsection (a) and adding Subsection (a-1) to read as |
|
follows: |
|
(a) A right to take as a member under a class gift does not |
|
accrue to any person unless the person is born before, or is in |
|
gestation at, the time of [the testator's] death of the person by |
|
which the class is measured and survives that person by [for] at |
|
least 120 hours. |
|
(a-1) For purposes of this section, a [A] person is: |
|
(1) considered to be in gestation [at the time of the
|
|
testator's death] if insemination or implantation occurs at or |
|
before the time of [the testator's] death of the person by which the |
|
class is measured; and |
|
(2) presumed to be in gestation at the time of death of |
|
the person by which the class is measured [the testator's death] if |
|
the person was born before the 301st day after the date of the |
|
person's [testator's] death. |
|
SECTION 22. Section 255.451, Estates Code, is amended by |
|
amending Subsection (a) and adding Subsections (a-1) and (c) to |
|
read as follows: |
|
(a) Subject to the requirements of this section, on [On] the |
|
petition of a personal representative, a court may order that the |
|
terms of the will be modified or reformed, that the personal |
|
representative be directed or permitted to perform acts that are |
|
not authorized or that are prohibited by the terms of the will, or |
|
that the personal representative be prohibited from performing acts |
|
that are required by the terms of the will, if: |
|
(1) modification of administrative, nondispositive |
|
terms of the will is necessary or appropriate to prevent waste or |
|
impairment of the estate's administration; |
|
(2) the order is necessary or appropriate to achieve |
|
the testator's tax objectives or to qualify a distributee for |
|
government benefits and is not contrary to the testator's intent; |
|
or |
|
(3) the order is necessary to correct a scrivener's |
|
error in the terms of the will, even if unambiguous, to conform with |
|
the testator's intent. |
|
(a-1) A personal representative seeking to modify or reform |
|
a will under this section must file a petition on or before the |
|
fourth anniversary of the date the will was admitted to probate. |
|
(c) Chapter 123, Property Code, applies to a proceeding |
|
under Subsection (a) that involves a charitable trust. |
|
SECTION 23. Section 256.003(b), Estates Code, is amended to |
|
read as follows: |
|
(b) Except as provided by Section 501.006 with respect to a |
|
foreign will, letters testamentary may not be issued if a will is |
|
admitted to probate after the fourth anniversary of the testator's |
|
death unless it is shown that the application for probate was filed |
|
on or before the fourth anniversary of the testator's death. |
|
SECTION 24. Section 257.051(a), Estates Code, is amended to |
|
read as follows: |
|
(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, date, 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, state of residence, and physical address |
|
where service can be had of the executor named in the will; |
|
(8) the name of each subscribing witness to the will, |
|
if any; |
|
(9) 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; |
|
(10) that the testator's estate does not owe an unpaid |
|
debt, other than any debt secured by a lien on real estate, or that |
|
for another reason there is no necessity for administration of the |
|
estate; |
|
(11) whether a marriage of the testator was ever |
|
dissolved after the will was made and, if so, when and from whom; |
|
and |
|
(12) whether the state, a governmental agency of the |
|
state, or a charitable organization is named in the will as a |
|
devisee. |
|
SECTION 25. Section 257.054, Estates Code, is amended to |
|
read as follows: |
|
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, or that for |
|
another reason there is no necessity for administration of the |
|
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. |
|
SECTION 26. Section 305.108, Estates Code, is amended to |
|
read as follows: |
|
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. |
|
SECTION 27. Sections 308.051(a) and (c), Estates Code, are |
|
amended to read as follows: |
|
(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 of |
|
general circulation [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. |
|
(c) If there is no [a] newspaper of general circulation [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. |
|
SECTION 28. Section 310.006, Estates Code, is amended to |
|
read as follows: |
|
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 distributees' |
|
[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 distributees [beneficiaries] of the estate, to reach |
|
a fair and equitable result among distributees [beneficiaries]. |
|
SECTION 29. Section 359.001(a), Estates Code, is amended to |
|
read as follows: |
|
(a) Not later than the 60th day after [On] the first |
|
anniversary of [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, |
|
unless the court authorizes an extension, 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 12-month period following the |
|
representative's qualification and receipt of letters [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. |
|
SECTION 30. Section 359.002(a), Estates Code, is amended to |
|
read as follows: |
|
(a) Not later than the 60th day after each anniversary of |
|
the date a personal representative of the estate of a decedent |
|
qualifies and receives letters testamentary or of administration to |
|
administer the decedent's estate under court order, unless the |
|
court authorizes an extension, the [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 during the |
|
12-month period after [since] the date the most recent previous |
|
account was filed. |
|
SECTION 31. Section 362.005(b), Estates Code, is amended to |
|
read as follows: |
|
(b) Citation issued under Subsection (a) must: |
|
(1) contain: |
|
(A) a statement that an account for final |
|
settlement has been presented; |
|
(B) the time and place the court will consider |
|
the account; and |
|
(C) a statement requiring the person cited to |
|
appear and contest the account, if the person wishes to contest the |
|
account; and |
|
(2) be given to each heir or distributee [beneficiary] |
|
of the decedent by certified mail, return receipt requested, unless |
|
the court by written order directs another method of service to be |
|
given. |
|
SECTION 32. Section 401.006, Estates Code, is amended to |
|
read as follows: |
|
Sec. 401.006. GRANTING POWER OF SALE BY AGREEMENT. In a |
|
situation in which a decedent does not have a will, or a decedent's |
|
will does not contain language authorizing the personal |
|
representative to sell property or contains language that is not |
|
sufficient to grant the representative that authority, the court |
|
may include in an order appointing an independent executor any |
|
general or specific authority regarding the power of the |
|
independent executor to sell property that may be consented to by |
|
the distributees [beneficiaries] who are to receive any interest in |
|
the property in the application for independent administration or |
|
for the appointment of an independent executor or in their consents |
|
to the independent administration or to the appointment of an |
|
independent executor. The independent executor, in such event, may |
|
sell the property under the authority granted in the court order |
|
without the further consent of those distributees [beneficiaries]. |
|
SECTION 33. Chapter 405, Estates Code, is amended by adding |
|
Section 405.0015 to read as follows: |
|
Sec. 405.0015. DISTRIBUTIONS GENERALLY. Unless the will, |
|
if any, or a court order provides otherwise, an independent |
|
executor may, in distributing property not specifically devised |
|
that the independent executor is authorized to sell: |
|
(1) make distributions in divided or undivided |
|
interests; |
|
(2) allocate particular assets in proportionate or |
|
disproportionate shares; |
|
(3) value the estate property for the purposes of |
|
acting under Subdivision (1) or (2); and |
|
(4) adjust the distribution, division, or termination |
|
for resulting differences in valuation. |
|
SECTION 34. Sections 405.003(b) and (d), Estates Code, are |
|
amended to read as follows: |
|
(b) On the filing of an action under this section, each |
|
distributee [beneficiary] of the estate shall be personally served |
|
with citation, except for a distributee [beneficiary] who has |
|
waived the issuance and service of citation. |
|
(d) On or before filing an action under this section, the |
|
independent executor must distribute to the distributees |
|
[beneficiaries] of the estate any of the remaining assets or |
|
property of the estate that remains in the independent executor's |
|
possession after all of the estate's debts have been paid, except |
|
for a reasonable reserve of assets that the independent executor |
|
may retain in a fiduciary capacity pending court approval of the |
|
final account. The court may review the amount of assets on reserve |
|
and may order the independent executor to make further |
|
distributions under this section. |
|
SECTION 35. Section 456.003, Estates Code, is amended to |
|
read as follows: |
|
Sec. 456.003. DUTY OF ELIGIBLE INSTITUTIONS. Not later |
|
than the seventh business day [Within a reasonable time] after the |
|
date an eligible institution receives [receiving] a copy of a |
|
written agreement under Section 456.002(a) or a statement from a |
|
personal representative under Section 456.002(b) and instructions |
|
from the lawyer identified in the agreement or statement, as |
|
applicable, regarding how to disburse the funds or close a trust or |
|
escrow account, the [an] eligible institution shall disburse the |
|
funds and close the account in compliance with the instructions. |
|
SECTION 36. Chapter 456, Estates Code, is amended by adding |
|
Section 456.0045 to read as follows: |
|
Sec. 456.0045. PRIVATE CAUSE OF ACTION. (a) If an eligible |
|
institution violates Section 456.003, a person aggrieved by the |
|
violation may bring an action against the eligible institution to: |
|
(1) obtain declaratory or injunctive relief to enforce |
|
the section; and |
|
(2) recover damages to the same extent the person |
|
would be entitled to damages had the eligible institution acted in |
|
the same manner with respect to the deceased lawyer before the |
|
lawyer's death. |
|
(b) A person who prevails in an action under this section |
|
may recover court costs and reasonable attorney's fees. |
|
SECTION 37. Subchapter A, Chapter 112, Property Code, is |
|
amended by adding Section 112.011 to read as follows: |
|
Sec. 112.011. POSTHUMOUS CLASS GIFTS MEMBERSHIP. (a) A |
|
right to take as a member under a class gift does not accrue to any |
|
person unless the person is born before, or is in gestation at, the |
|
time of death of the person by which the class is measured and |
|
survives that person by at least 120 hours. |
|
(b) For purposes of Subsection (a), a person is: |
|
(1) considered to be in gestation if insemination or |
|
implantation occurs at or before the time of death of the person by |
|
which the class is measured; and |
|
(2) presumed to be in gestation at the time of death of |
|
the person by which the class is measured if the person was born |
|
before the 301st day after the date of the person's death. |
|
(c) A provision in the trust instrument that is contrary to |
|
this section prevails over this section. |
|
SECTION 38. Sections 303.003 and 362.010, Estates Code, are |
|
repealed. |
|
SECTION 39. Section 33.001, Estates Code, as amended by |
|
this Act, applies only to an application for the probate of a will |
|
or for the granting of letters testamentary or of administration of |
|
a decedent's estate that is filed on or after the effective date of |
|
this Act. An application for the probate of a will or the granting |
|
of letters filed before that date is governed by the law in effect |
|
on the date the application was filed, and the former law is |
|
continued in effect for that purpose. |
|
SECTION 40. Section 112.103, Estates Code, as amended by |
|
this Act, applies only to a proceeding under Subchapter C, Chapter |
|
112, Estates Code, commenced on or after the effective date of this |
|
Act. A proceeding under that subchapter commenced before that date |
|
is governed by the law in effect on the date the proceeding was |
|
commenced, and the former law is continued in effect for that |
|
purpose. |
|
SECTION 41. Section 113.252(c), Estates Code, as amended by |
|
this Act, applies to a proceeding commenced before, on, or after the |
|
effective date of this Act, regardless of the date of the decedent's |
|
death. |
|
SECTION 42. Section 123.056, Estates Code, as added by this |
|
Act, applies to a trust created before, on, or after the effective |
|
date of this Act with respect to which the marriage of the settlors |
|
is dissolved on or after that date. |
|
SECTION 43. Sections 123.151(a) and (b), Estates Code, as |
|
amended by this Act, and Section 123.151(c-1), as added by this Act, |
|
apply only to a multiple-party account for which the marriage of a |
|
party to the account is dissolved on or after the effective date of |
|
this Act. |
|
SECTION 44. Section 123.151(d-1), Estates Code, as added by |
|
this Act, and Section 456.0045, Estates Code, as added by this Act, |
|
apply only to a cause of action that accrues on or after the |
|
effective date of this Act. A cause of action that accrued before |
|
the effective date of this Act is governed by the law applicable to |
|
the cause of action immediately before the effective date of this |
|
Act, and that law is continued in effect for that purpose. |
|
SECTION 45. Section 202.057, Estates Code, as amended by |
|
this Act, applies only to an application for a proceeding to declare |
|
heirship that is filed on or after the effective date of this Act. |
|
An application for a proceeding to declare heirship filed before |
|
that date is governed by the law in effect on the date the |
|
application was filed, and the former law is continued in effect for |
|
that purpose. |
|
SECTION 46. Section 205.001, Estates Code, as amended by |
|
this Act, applies to a small estate administration commenced on or |
|
after the effective date of this Act, regardless of the date of the |
|
decedent's death. |
|
SECTION 47. Section 255.401, Estates Code, as amended by |
|
this Act, and Section 112.011, Property Code, as added by this Act, |
|
apply to the estate of a decedent who dies before, on, or after the |
|
effective date of this Act. |
|
SECTION 48. Section 255.451, Estates Code, as amended by |
|
this Act, applies only to a petition filed on or after the effective |
|
date of this Act. A petition filed before that date is governed by |
|
the law in effect on the date the petition was filed, and the former |
|
law is continued in effect for that purpose. |
|
SECTION 49. Sections 256.003(b), 257.051(a), and 257.054, |
|
Estates Code, as amended by this Act, apply only to an application |
|
for the probate of a will or administration of a decedent's estate |
|
that is filed on or after the effective date of this Act. An |
|
application for the probate of a will or administration of a |
|
decedent's estate filed before that date is governed by the law in |
|
effect on the date the application was filed, and the former law is |
|
continued in effect for that purpose. |
|
SECTION 50. Sections 359.001(a) and 359.002(a), Estates |
|
Code, as amended by this Act, apply to an account filed on or after |
|
the effective date of this Act, regardless of whether the personal |
|
representative was appointed before, on, or after that date. |
|
SECTION 51. Section 405.0015, Estates Code, as added by |
|
this Act, applies to the administration of the estate of a decedent |
|
that is pending or commenced on or after the effective date of this |
|
Act. |
|
SECTION 52. This Act takes effect September 1, 2017. |