By: Hartnett (Senate Sponsor - Wentworth) H.B. No. 1968
(In the Senate - Received from the House May 8, 2009;
May 8, 2009, read first time and referred to Committee on
Jurisprudence; May 23, 2009, reported favorably by the following
vote: Yeas 5, Nays 0; May 23, 2009, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the estates of decedents.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 149B(a), Texas Probate Code, is amended
to read as follows:
(a) In addition to or in lieu of the right to an accounting
provided by Section 149A of this code, at any time after the
expiration of two years from the date the clerk of the court first
issues letters testamentary or of administration to any personal
representative of the estate [that an independent administration
was created and the order appointing an independent executor was
entered], a person interested in an [the] estate then subject to
independent administration may petition the county court, as that
term is defined by Section 3 of this code, for an accounting and
distribution. The court may order an accounting to be made with the
court by the independent executor at such time as the court deems
proper. The accounting shall include the information that the
court deems necessary to determine whether any part of the estate
should be distributed.
SECTION 2. The heading to Part 5, Chapter VII, Texas Probate
Code, is amended to read as follows:
PART 5. [GENERAL] POWERS, DUTIES, AND LIABILITIES OF PERSONAL
REPRESENTATIVES
SECTION 3. Part 5, Chapter VII, Texas Probate Code, is
amended by adding Sections 236 and 236A to read as follows:
Sec. 236. LIABILITY OF PERSONAL REPRESENTATIVE. A personal
representative who commits a breach of fiduciary duty and the
sureties on the personal representative's bond are chargeable with
any damages resulting from the breach, including:
(1) any loss or depreciation in value of the estate as
a result of the breach;
(2) any profit made by the personal representative as
a result of the breach;
(3) any profit that would have accrued to the estate if
there had been no breach;
(4) exemplary damages; or
(5) costs and fees described by Section 245 of this
code.
Sec. 236A. REMEDIES FOR BREACH OF FIDUCIARY DUTY. (a) To
remedy a breach of fiduciary duty by a personal representative, a
court may:
(1) compel the personal representative to perform the
personal representative's duty or duties;
(2) enjoin the personal representative from
continuing to commit a breach of fiduciary duty or committing an
additional breach of fiduciary duty;
(3) compel the personal representative to redress a
breach of fiduciary duty, including compelling the representative
to pay money or to restore property;
(4) order a personal representative to account;
(5) appoint a receiver to take possession of estate
property and administer the estate;
(6) suspend the personal representative;
(7) remove the personal representative as provided by
Section 222 of this code;
(8) reduce or deny compensation to the personal
representative;
(9) void an act of the personal representative;
(10) impose a lien or a constructive trust on estate
property;
(11) trace estate property that the personal
representative wrongfully disposed of and recover the property or
the proceeds from the property; or
(12) order any other appropriate relief.
(b) A certified copy of an order that imposes a lien or
constructive trust on real property under Subsection (a)(10) of
this section may be filed in the real property records of each
county in which the real property is located. On the recording of
the certified copy, the order is constructive notice of the
existence of the lien or constructive trust.
SECTION 4. Section 70, Texas Probate Code, is repealed.
SECTION 5. (a) The change in law made by this Act to Section
149B, Texas Probate Code, applies only to a petition for an
accounting and distribution filed on or after the effective date of
this Act. A petition for an accounting and distribution filed
before the effective date of this Act is covered by the law in
effect on the date the petition was filed, and that law is continued
in effect for that purpose.
(b) Sections 236 and 236A, Texas Probate Code, as added by
this Act, apply only to conduct that occurs on or after the
effective date of this Act. Conduct that occurs before the
effective date of this Act is governed by the law in effect on the
date the conduct occurred, and the former law is continued in effect
for that purpose.
SECTION 6. This Act takes effect September 1, 2009.
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