Texas 2009 - 81st Regular

Texas House Bill HB1968 Compare Versions

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1	1	By: Hartnett (Senate Sponsor - Wentworth) H.B. No. 1968
2	2	(In the Senate - Received from the House May 8, 2009;
3	3	May 8, 2009, read first time and referred to Committee on
4	4	Jurisprudence; May 23, 2009, reported favorably by the following
5	5	vote: Yeas 5, Nays 0; May 23, 2009, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the estates of decedents.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 149B(a), Texas Probate Code, is amended
13	13	to read as follows:
14	14	(a) In addition to or in lieu of the right to an accounting
15	15	provided by Section 149A of this code, at any time after the
16	16	expiration of two years from the date the clerk of the court first
17	17	issues letters testamentary or of administration to any personal
18	18	representative of the estate [that an independent administration
19	19	was created and the order appointing an independent executor was
20	20	entered], a person interested in an [the] estate then subject to
21	21	independent administration may petition the county court, as that
22	22	term is defined by Section 3 of this code, for an accounting and
23	23	distribution. The court may order an accounting to be made with the
24	24	court by the independent executor at such time as the court deems
25	25	proper. The accounting shall include the information that the
26	26	court deems necessary to determine whether any part of the estate
27	27	should be distributed.
28	28	SECTION 2. The heading to Part 5, Chapter VII, Texas Probate
29	29	Code, is amended to read as follows:
30	30	PART 5. [GENERAL] POWERS, DUTIES, AND LIABILITIES OF PERSONAL
31	31	REPRESENTATIVES
32	32	SECTION 3. Part 5, Chapter VII, Texas Probate Code, is
33	33	amended by adding Sections 236 and 236A to read as follows:
34	34	Sec. 236. LIABILITY OF PERSONAL REPRESENTATIVE. A personal
35	35	representative who commits a breach of fiduciary duty and the
36	36	sureties on the personal representative's bond are chargeable with
37	37	any damages resulting from the breach, including:
38	38	(1) any loss or depreciation in value of the estate as
39	39	a result of the breach;
40	40	(2) any profit made by the personal representative as
41	41	a result of the breach;
42	42	(3) any profit that would have accrued to the estate if
43	43	there had been no breach;
44	44	(4) exemplary damages; or
45	45	(5) costs and fees described by Section 245 of this
46	46	code.
47	47	Sec. 236A. REMEDIES FOR BREACH OF FIDUCIARY DUTY. (a) To
48	48	remedy a breach of fiduciary duty by a personal representative, a
49	49	court may:
50	50	(1) compel the personal representative to perform the
51	51	personal representative's duty or duties;
52	52	(2) enjoin the personal representative from
53	53	continuing to commit a breach of fiduciary duty or committing an
54	54	additional breach of fiduciary duty;
55	55	(3) compel the personal representative to redress a
56	56	breach of fiduciary duty, including compelling the representative
57	57	to pay money or to restore property;
58	58	(4) order a personal representative to account;
59	59	(5) appoint a receiver to take possession of estate
60	60	property and administer the estate;
61	61	(6) suspend the personal representative;
62	62	(7) remove the personal representative as provided by
63	63	Section 222 of this code;
64	64	(8) reduce or deny compensation to the personal
65	65	representative;
66	66	(9) void an act of the personal representative;
67	67	(10) impose a lien or a constructive trust on estate
68	68	property;
69	69	(11) trace estate property that the personal
70	70	representative wrongfully disposed of and recover the property or
71	71	the proceeds from the property; or
72	72	(12) order any other appropriate relief.
73	73	(b) A certified copy of an order that imposes a lien or
74	74	constructive trust on real property under Subsection (a)(10) of
75	75	this section may be filed in the real property records of each
76	76	county in which the real property is located. On the recording of
77	77	the certified copy, the order is constructive notice of the
78	78	existence of the lien or constructive trust.
79	79	SECTION 4. Section 70, Texas Probate Code, is repealed.
80	80	SECTION 5. (a) The change in law made by this Act to Section
81	81	149B, Texas Probate Code, applies only to a petition for an
82	82	accounting and distribution filed on or after the effective date of
83	83	this Act. A petition for an accounting and distribution filed
84	84	before the effective date of this Act is covered by the law in
85	85	effect on the date the petition was filed, and that law is continued
86	86	in effect for that purpose.
87	87	(b) Sections 236 and 236A, Texas Probate Code, as added by
88	88	this Act, apply only to conduct that occurs on or after the
89	89	effective date of this Act. Conduct that occurs before the
90	90	effective date of this Act is governed by the law in effect on the
91	91	date the conduct occurred, and the former law is continued in effect
92	92	for that purpose.
93	93	SECTION 6. This Act takes effect September 1, 2009.
94	94	* * * * *