Texas 2009 - 81st Regular

Texas House Bill HB3085 Compare Versions

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1	1	81R8625 MTB-F
2	2	By: Hartnett H.B. No. 3085
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to the independent administration of a decedent's estate.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. The Texas Probate Code is amended by adding
10	10	Chapter VI-1 to read as follows:
11	11	CHAPTER VI-1. INDEPENDENT ADMINISTRATION
12	12	PART 1. CREATION
13	13	Sec. 177A. EXPRESSION OF TESTATOR'S INTENT IN WILL. (a)
14	14	Any person capable of making a will may provide in the person's will
15	15	that no other action shall be had in the probate court in relation
16	16	to the settlement of the person's estate than the probating and
17	17	recording of the will and the return of an inventory, appraisement,
18	18	and list of claims of the person's estate.
19	19	(b) Any person capable of making a will may provide in the
20	20	person's will that no independent administration of his or her
21	21	estate may be allowed. In such case the person's estate, if
22	22	administered, shall be administered and settled under the direction
23	23	of the probate court as other estates are required to be settled and
24	24	not as an independent administration.
25	25	Sec. 177B. CREATION IN TESTATE ESTATE BY AGREEMENT. (a)
26	26	Except as provided in Section 177A(b) of this code, if a decedent's
27	27	will names an executor but the will does not provide for independent
28	28	administration as provided in Section 177A(a) of this code, all of
29	29	the distributees of the decedent may agree on the advisability of
30	30	having an independent administration and collectively designate in
31	31	the application for probate of the decedent's will the executor
32	32	named in the will to serve as independent executor and request in
33	33	the application that no other action shall be had in the probate
34	34	court in relation to the settlement of the decedent's estate other
35	35	than the probating and recording of the decedent's will and the
36	36	return of an inventory, appraisement, and list of claims of the
37	37	decedent's estate. In such case the probate court shall enter an
38	38	order granting independent administration and appointing the
39	39	person, firm, or corporation designated in the application as
40	40	independent executor, unless the court finds that it would not be in
41	41	the best interest of the estate to do so.
42	42	(b) Except as provided in Section 177A(b) of this code, in
43	43	situations where no executor is named in the decedent's will, or in
44	44	situations where each executor named in the will is deceased or is
45	45	disqualified to serve as executor or indicates by affidavit filed
46	46	with the application for administration of the decedent's estate
47	47	the executor's inability or unwillingness to serve as executor, all
48	48	of the distributees of the decedent may agree on the advisability of
49	49	having an independent administration and collectively designate in
50	50	the application for probate of the decedent's will a qualified
51	51	person, firm, or corporation to serve as independent administrator
52	52	and request in the application that no other action shall be had in
53	53	the probate court in relation to the settlement of the decedent's
54	54	estate other than the probating and recording of the decedent's
55	55	will and the return of an inventory, appraisement, and list of
56	56	claims of the decedent's estate. In such case the probate court
57	57	shall enter an order granting independent administration and
58	58	appointing the person, firm, or corporation designated in the
59	59	application as independent administrator, unless the court finds
60	60	that it would not be in the best interest of the estate to do so.
61	61	Sec. 177C. CREATION IN INTESTATE ESTATE BY AGREEMENT. (a)
62	62	All of the distributees of a decedent dying intestate may agree on
63	63	the advisability of having an independent administration and
64	64	collectively designate in the application for administration of the
65	65	decedent's estate a qualified person, firm, or corporation to serve
66	66	as independent administrator and request in the application that no
67	67	other action shall be had in the probate court in relation to the
68	68	settlement of the decedent's estate other than the return of an
69	69	inventory, appraisement, and list of claims of the decedent's
70	70	estate. In such case the probate court shall enter an order
71	71	granting independent administration and appointing the person,
72	72	firm, or corporation designated in the application as independent
73	73	administrator, unless the court finds that it would not be in the
74	74	best interest of the estate to do so.
75	75	(b) The court shall not appoint an independent
76	76	administrator to serve in an intestate administration unless and
77	77	until the parties seeking appointment of the independent
78	78	administrator offer clear and convincing evidence to the court that
79	79	they constitute all of the decedent's heirs.
80	80	Sec. 177D. MEANS OF ESTABLISHING DISTRIBUTEE CONSENT. (a)
81	81	This section applies to the creation of an independent
82	82	administration under Section 177B or 177C of this code.
83	83	(b) All distributees shall be served with citation and
84	84	notice of the application for independent administration unless the
85	85	distributee waives the issuance or service of citation or enters an
86	86	appearance in court.
87	87	(c) If a distributee is an incapacitated person, the
88	88	guardian of the person of the distributee may sign the application
89	89	on behalf of the distributee. If the probate court finds that
90	90	either the granting of independent administration or the
91	91	appointment of the person, firm, or corporation designated in the
92	92	application as independent executor would not be in the best
93	93	interest of the incapacitated person, then, notwithstanding
94	94	anything to the contrary in Section 177B or 177C of this code, the
95	95	court shall not enter an order granting independent administration
96	96	of the estate. If a distributee who is an incapacitated person has
97	97	no guardian of the person, the probate court may appoint a guardian
98	98	ad litem to make application on behalf of the incapacitated person
99	99	if the court considers such an appointment necessary to protect the
100	100	interest of the distributees. Alternatively, if the distributee who
101	101	is an incapacitated person is a minor and has no guardian of the
102	102	person, the natural guardian or guardians of such minor may consent
103	103	on behalf of such incapacitated person if there is no conflict of
104	104	interest between the minor and such natural guardian or guardians.
105	105	(d) If a trust is created in the decedent's will, the person
106	106	or class of persons first eligible to receive the income from the
107	107	trust, when determined as if the trust were to be in existence on
108	108	the date of the decedent's death, shall, for the purposes of Section
109	109	177B of this code, be considered to be the distributee or
110	110	distributees on behalf of such trust, and any other trust or trusts
111	111	coming into existence on the termination of such trust, and are
112	112	authorized to apply for independent administration on behalf of the
113	113	trusts without the consent or agreement of the trustee or any other
114	114	beneficiary of the trust, or the trustee or any beneficiary of any
115	115	other trust which may come into existence on the termination of such
116	116	trust. If a person who is a trust beneficiary and who is considered
117	117	to be a distributee under this subsection is an incapacitated
118	118	person, then such trustee or cotrustee may file the application or
119	119	give the consent, provided that such trustee or cotrustee is not the
120	120	person proposed to serve as the independent executor.
121	121	(e) If a life estate is created either in the decedent's
122	122	will or by law, the life tenant or life tenants, when determined as
123	123	if the life estate were to commence on the date of the decedent's
124	124	death, shall, for the purposes of Section 177B or 177C of this code,
125	125	be considered to be the distributee or distributees on behalf of the
126	126	entire estate created, and are authorized to apply for independent
127	127	administration on behalf of the estate without the consent or
128	128	approval of any remainderman.
129	129	(f) If a decedent's will contains a provision that a
130	130	distributee must survive the decedent by a prescribed period of
131	131	time in order to take under the decedent's will, then, for the
132	132	purposes of determining who shall be the distributee under Section
133	133	177B of this code and under Subsection (c) of this section, it shall
134	134	be presumed that the distributees living at the time of the filing
135	135	of the application for probate of the decedent's will survived the
136	136	decedent by the prescribed period.
137	137	(g) In the case of all decedents, whether dying testate or
138	138	intestate, for the purposes of determining who shall be the
139	139	distributees under Section 177B or 177C of this code and under
140	140	Subsection (c) of this section, it shall be presumed that no
141	141	distributee living at the time the application for independent
142	142	administration is filed shall subsequently disclaim any portion of
143	143	such distributee's interest in the decedent's estate.
144	144	(h) If a distributee of a decedent's estate should die and
145	145	if by virtue of such distributee's death such distributee's share of
146	146	the decedent's estate shall become payable to such distributee's
147	147	estate, then the deceased distributee's personal representative
148	148	may sign the application for independent administration of the
149	149	decedent's estate under Section 177B or 177C of this code and under
150	150	Subsection (c) of this section.
151	151	Sec. 177E. BOND; WAIVER OF BOND. If an independent
152	152	administration of a decedent's estate is created under Section 177B
153	153	or 177C of this code, then, unless the probate court waives bond on
154	154	application for waiver, the independent executor shall be required
155	155	to enter into bond payable to and to be approved by the judge and the
156	156	judge's successors in a sum that is found by the judge to be
157	157	adequate under all circumstances, or a bond with one surety in a sum
158	158	that is found by the judge to be adequate under all circumstances,
159	159	if the surety is an authorized corporate surety. This section does
160	160	not repeal any other section of this code.
161	161	Sec. 177F. GRANTING POWER OF SALE BY AGREEMENT. In a
162	162	situation in which a decedent does not have a will or the will does
163	163	not contain or insufficiently contains language authorizing the
164	164	personal representative to sell real property, the court may
165	165	include in an order appointing an independent executor under
166	166	Section 177B or 177C of this code such general or specific authority
167	167	regarding the power of the independent executor to sell real
168	168	property as may be consented to by the beneficiaries who are to
169	169	receive any such real property in their consents to the independent
170	170	administration. The independent executor, in such event, may sell
171	171	the real property under the authority granted in the court order
172	172	without the further consent of those beneficiaries.
173	173	Sec. 177G. NO LIABILITY OF JUDGE. Absent proof of fraud or
174	174	collusion on the part of a judge, no judge may be held civilly
175	175	liable for the commission of misdeeds or the omission of any
176	176	required act of any person, firm, or corporation designated as an
177	177	independent executor under Section 177B or 177C of this code.
178	178	Section 36 of this code does not apply to the appointment of an
179	179	independent executor under Section 177B or 177C of this code.
180	180	Sec. 177H. PERSON DECLINING TO SERVE. A person who declines
181	181	to serve or resigns as independent executor of a decedent's estate
182	182	may be appointed an executor or administrator of the estate if the
183	183	estate will be administered and settled under the direction of the
184	184	court.
185	185	PART 2. ADMINISTRATION
186	186	Sec. 177I. GENERAL SCOPE AND EXERCISE OF POWERS. When an
187	187	independent administration has been created, and the order
188	188	appointing an independent executor has been entered by the probate
189	189	court, and the inventory, appraisement, and list of claims has been
190	190	filed by the independent executor and approved by the court, as long
191	191	as the estate is represented by an independent executor, further
192	192	action of any nature shall not be had in the probate court except
193	193	where this code specifically and explicitly provides for some
194	194	action in such court.
195	195	Sec. 177J. INDEPENDENT EXECUTORS MAY ACT WITHOUT COURT
196	196	APPROVAL. Unless this code specifically provides otherwise, any
197	197	action that a personal representative subject to court supervision
198	198	may do with or without a court order may be taken by an independent
199	199	executor without a court order. The other provisions of this
200	200	chapter are designed to provide additional guidance regarding
201	201	independent administrations in specified situations, and are not
202	202	designed to limit by omission or otherwise the application of the
203	203	general principles set forth in this part.
204	204	Sec. 177K. POWER OF SALE. (a) General. (1) An independent
205	205	executor has the power of sale set forth in the will, if applicable,
206	206	exercisable without court approval as otherwise provided for
207	207	independent administrations.
208	208	(2) Unless limited by the terms of a will, an
209	209	independent executor has, in addition to any power of sale given in
210	210	the will, the same power of sale for the same purposes as personal
211	211	representatives have in a supervised administration, but without
212	212	the requirement of court approval. The procedural requirements
213	213	applicable to a supervised administration do not apply.
214	214	(b) Protection of Person Purchasing Estate Property. (1) A
215	215	person who is not a devisee or heir is not required to inquire into
216	216	the independent executor's power of sale or the propriety of the
217	217	exercise of the power of sale if the person deals with the
218	218	independent executor in good faith and:
219	219	(A) a power of sale is granted to the independent
220	220	executor in the will or in the court order appointing the
221	221	independent executor; or
222	222	(B) the independent executor provides an
223	223	affidavit, sworn to under oath and recorded in the deed records of
224	224	the county where the property is located, that the sale is necessary
225	225	or advisable for any of the purposes described in Section 341(1) of
226	226	this code.
227	227	(2) As to acts undertaken in good faith reliance, the
228	228	affidavit executed by the independent executor and described by
229	229	Subsection (b)(1)(B)of this section is conclusive proof, as between
230	230	a purchaser of property from an estate, and the personal
231	231	representative of an estate or the heirs and distributees of the
232	232	estate, with respect to the authority of the independent executor
233	233	to sell the property. The signature or joinder of any person who is
234	234	a devisee or heir and who has an interest in the property being sold
235	235	as described in this section is not necessary for the purchaser to
236	236	obtain all right, title, and interest of the estate in the property
237	237	being sold.
238	238	(3) This section does not relieve the independent
239	239	executor of any duty owing to a devisee or heir related directly or
240	240	indirectly to the sale.
241	241	(c) No Limitations. This section does not limit the
242	242	authority of an independent executor to take other actions without
243	243	court supervision or approval with respect to estate assets that
244	244	may take place in a supervised administration, for purposes and
245	245	within the scope otherwise authorized by this code, including
246	246	leases and borrowing money.
247	247	PART 3. CLAIMS; EXEMPTIONS AND ALLOWANCES
248	248	Sec. 177L. SETTING ASIDE EXEMPT PROPERTY AND ALLOWANCES.
249	249	The independent executor shall set aside and deliver to those
250	250	entitled exempt property and allowances for support, and allowances
251	251	in lieu of exempt property, as prescribed in this code, to the same
252	252	extent and result as if the independent executor's actions had been
253	253	accomplished in, and under orders of, the court.
254	254	Sec. 177M. CLAIMS. (a) Duty of the Independent Executor.
255	255	An independent executor, in the administration of an estate,
256	256	independently of and without application to, or any action in or by
257	257	the court:
258	258	(1) shall give the notices required under Sections 294
259	259	and 295 of this code;
260	260	(2) may give the notice to an unsecured creditor with a
261	261	claim for money permitted under Section 294(d) of this code and bar
262	262	a claim under Subsection (e) of this section; and
263	263	(3) may approve or reject any claim, or take no action
264	264	on a claim, and shall classify and pay claims approved or
265	265	established by suit against the estate in the same order of
266	266	priority, classification, and proration prescribed in this code.
267	267	(a-1) Statement in Notice of Claim. In order to be
268	268	effective, the notice described by Subsection (a)(2) of this
269	269	section must include, in addition to the other information required
270	270	by Section 294(d) of this code, a statement that a claim may be
271	271	effectively presented only by one of the methods described in this
272	272	section.
273	273	(b) Secured Claims for Money. Within six months after the
274	274	date letters are granted or within four months after the date notice
275	275	is received under Section 295 of this code, whichever is later, a
276	276	creditor with a claim for money secured by real or personal property
277	277	of the estate must give notice to the independent executor of the
278	278	creditor's election to have the creditor's claim approved as a
279	279	matured secured claim to be paid in due course of administration.
280	280	In addition to such notice, such creditor whose claim is secured by
281	281	real property shall record a notice of such election in the deed
282	282	records of the county in which such real property is located. If no
283	283	election to be a matured secured creditor is made, or is made but
284	284	not within the required period, or is made within the required
285	285	period but the creditor has a lien against real property and fails
286	286	to record notice of the claim in the deed records as described above
287	287	within the required period, the claim shall be a preferred debt and
288	288	lien against the specific property securing the indebtedness and
289	289	shall be paid according to the terms of the contract that secured
290	290	the lien, and the claim may not be asserted against other assets of
291	291	the estate. The independent executor may pay the claim prior to
292	292	maturity if it is determined to be in the best interest of the
293	293	estate to do so.
294	294	(c) Matured Secured Claims. (1) A claim approved as a
295	295	matured secured claim under Subsection (b) of this section shall
296	296	remain secured by any lien or security interest against the
297	297	specific property securing its payment but subordinated to the
298	298	payment from the property of claims having a higher classification
299	299	under Section 322 of this code. However, the secured creditor:
300	300	(A) shall not be entitled to exercise any
301	301	remedies in a manner that prevents the payment of such higher
302	302	priority claims and allowances; and
303	303	(B) during the administration of the estate,
304	304	shall not be entitled to exercise any contractual collection
305	305	rights, including the power to foreclose, without either the prior
306	306	written approval of the independent executor or court approval.
307	307	(1-a) Nothing in Subdivision (1) of this subsection
308	308	shall be construed to suspend or otherwise prevent a creditor with a
309	309	matured secured claim from seeking judicial relief of any kind or
310	310	executing on any judgment against an independent executor. Except
311	311	with respect to real property, any third party acting in good faith
312	312	may obtain good title with respect to an estate asset acquired
313	313	through a secured creditor's extrajudicial collection rights,
314	314	without regard to whether such creditor had the right to collect or
315	315	whether the creditor acted improperly in exercising such rights
316	316	during an estate administration due to having elected matured
317	317	secured status.
318	318	(2) If a claim approved or established by suit as a
319	319	matured secured claim is secured by property passing to one or more
320	320	devisees in accordance with Section 71A of this code, the
321	321	independent executor shall collect from the devisees the amount of
322	322	the debt and pay that amount to the claimant or sell the property
323	323	and pay out of the sale proceeds the claim and associated expenses
324	324	of sale consistent with the provisions of Section 306(c-1) of this
325	325	code applicable in court supervised administrations.
326	326	(d) Preferred Debt and Lien Claims. During an independent
327	327	administration, a secured creditor whose claim is a preferred debt
328	328	and lien against property securing the indebtedness under
329	329	Subsection (b) of this section is free to exercise any and all
330	330	judicial or extrajudicial collection rights, including foreclosure
331	331	and execution; provided, however, that such creditor shall not have
332	332	the right to conduct a nonjudicial foreclosure sale within a period
333	333	of six months after letters are granted.
334	334	(e) Certain Unsecured Claims; Barring of Claims. An
335	335	unsecured creditor who has a claim for money against an estate and
336	336	who receives a notice under Section 294(d) of this code shall give
337	337	notice to the independent executor of the nature and amount of the
338	338	claim not later than the 120th day after the date on which the
339	339	notice is received or the claim is barred.
340	340	(f) Notices Required by Creditors. Notice to the personal
341	341	representative required by Subsections (b) and (e) of this section
342	342	must be contained in:
343	343	(1) a written instrument that is hand-delivered with
344	344	proof of receipt, or mailed by certified mail, return receipt
345	345	requested with proof of receipt, to the independent executor or the
346	346	executor's attorney;
347	347	(2) a pleading filed in a lawsuit with respect to the
348	348	claim; or
349	349	(3) a written instrument or pleading filed in the
350	350	court in which the administration of the estate is pending.
351	351	(f-1) Filing Requirements Applicable. Nothing in
352	352	Subsection (f) of this section shall relieve a creditor who elects
353	353	matured secured status from the filing requirements in Subsection
354	354	(b) of this section, to the extent applicable.
355	355	(g) Statute of Limitations. Except as otherwise provided in
356	356	Section 16.062, Civil Practice and Remedies Code, the running of
357	357	the statute of limitations shall be tolled only by a written
358	358	approval of a claim signed by an independent executor, a pleading
359	359	filed in a suit pending at the time of the decedent's death, or a
360	360	suit brought by the creditor against the independent executor. In
361	361	particular, the presentation of a statement or claim, or a notice
362	362	with respect to a claim, to an independent executor shall not toll
363	363	the running of the statute of limitations with respect to that
364	364	claim.
365	365	(h) Other Claim Procedures of Code Generally Do Not Apply.
366	366	Except as otherwise provided in this section, the procedural
367	367	provisions of this code governing creditor claims in supervised
368	368	administrations do not apply in independent administrations. By way
369	369	of example only and not of limitation:
370	370	(1) Section 313 of this code does not apply in
371	371	independent administrations, and consequently a creditor's claim
372	372	shall not be barred solely because the creditor failed to file a
373	373	suit within 90 days after a claim has been rejected by an
374	374	independent executor or with respect to which the independent
375	375	executor takes no action; and
376	376	(2) Sections 306(f)-(k) of this code do not apply in
377	377	independent administrations.
378	378	(i) Liability of Independent Executor. An independent
379	379	executor, in the administration of an estate, may pay at any time
380	380	and without personal liability a claim for money against the estate
381	381	to the extent approved and classified by the personal
382	382	representative if:
383	383	(1) the claim is not barred by limitations; and
384	384	(2) at the time of payment, the independent executor
385	385	reasonably believes the estate will have sufficient assets to pay
386	386	all claims against the estate.
387	387	Sec. 177N. ENFORCEMENT OF CLAIMS BY SUIT. Any person having
388	388	a debt or claim against the estate may enforce the payment of the
389	389	same by suit against the independent executor; and, when judgment
390	390	is recovered against the independent executor, the execution shall
391	391	run against the estate of the decedent in the possession of the
392	392	independent executor that is subject to such debt. The independent
393	393	executor shall not be required to plead to any suit brought against
394	394	the executor for money until after six months after the date that an
395	395	independent administration was created and the order appointing the
396	396	executor was entered by the probate court.
397	397	Sec. 177O. REQUIRING HEIRS TO GIVE BOND. When an
398	398	independent administration is created and the order appointing an
399	399	independent executor is entered by the probate court, any person
400	400	having a debt against such estate may, by written complaint filed in
401	401	the probate court in which such order was entered, cause all
402	402	distributees of the estate, heirs at law, and other persons
403	403	entitled to any portion of such estate under the will, if any, to be
404	404	cited by personal service to appear before such probate court and
405	405	execute a bond for an amount equal to the amount of the creditor's
406	406	claim or the full value of such estate, as shown by the inventory
407	407	and list of claims, whichever is the smaller, such bond to be
408	408	payable to the judge, and the judge's successors, and to be approved
409	409	by the judge, and conditioned that all obligors shall pay all debts
410	410	that shall be established against such estate in the manner
411	411	provided by law. On the return of the citation served, unless such
412	412	person so entitled to any portion of the estate, or some of them, or
413	413	some other person for them, shall execute such bond to the
414	414	satisfaction of the probate court, such estate shall be
415	415	administered and settled under the direction of the probate court
416	416	as other estates are required to be settled. If the bond is
417	417	executed and approved, the independent administration shall
418	418	proceed. Creditors of the estate may sue on such bond, and shall be
419	419	entitled to judgment on the bond for the amount of their debt, or
420	420	they may have their action against those in possession of the
421	421	estate.
422	422	PART 4. ACCOUNTINGS, SUCCESSORS, AND OTHER REMEDIES
423	423	Sec. 177P. ACCOUNTING. (a) Interested Person May Demand
424	424	Accounting. At any time after the expiration of 15 months after the
425	425	date that an independent administration was created and the order
426	426	appointing an independent executor was entered by the probate
427	427	court, any person interested in the estate may demand an accounting
428	428	from the independent executor. The independent executor shall
429	429	furnish to the person or persons making the demand an exhibit in
430	430	writing, sworn and subscribed by the independent executor, setting
431	431	forth in detail:
432	432	(1) the property belonging to the estate that has come
433	433	into the executor's possession as executor;
434	434	(2) the disposition that has been made of such
435	435	property;
436	436	(3) the debts that have been paid;
437	437	(4) the debts and expenses, if any, still owing by the
438	438	estate;
439	439	(5) the property of the estate, if any, still
440	440	remaining in the executor's possession;
441	441	(6) such other facts as may be necessary to a full and
442	442	definite understanding of the exact condition of the estate; and
443	443	(7) such facts, if any, that show why the
444	444	administration should not be closed and the estate distributed.
445	445	(a-1) Copy of Exhibit or Accounting. Any other interested
446	446	person shall, on demand, be entitled to a copy of any exhibit or
447	447	accounting that has been made by an independent executor in
448	448	compliance with this section.
449	449	(b) Enforcement of Demand. Should the independent executor
450	450	not comply with a demand for an accounting authorized by this
451	451	section within 60 days after receipt of the demand, the person
452	452	making the demand may compel compliance by an action in the probate
453	453	court. After a hearing, the court shall enter an order requiring the
454	454	accounting to be made at such time as it considers proper under the
455	455	circumstances.
456	456	(c) Subsequent Demands. After an initial accounting has
457	457	been given by an independent executor, any person interested in an
458	458	estate may demand subsequent periodic accountings at intervals of
459	459	not less than 12 months, and such subsequent demands may be enforced
460	460	in the same manner as an initial demand.
461	461	(d) Remedies Cumulative. The right to an accounting
462	462	accorded by this section is cumulative of any other remedies which
463	463	persons interested in an estate may have against the independent
464	464	executor of the estate.
465	465	Sec. 177Q. REQUIRING INDEPENDENT EXECUTOR TO GIVE BOND.
466	466	When it has been provided by will, regularly probated, that an
467	467	independent executor appointed by such will shall not be required
468	468	to give bond for the management of the estate devised by such will,
469	469	or the independent executor is not required to give bond because
470	470	bond has been waived by court order as authorized under Section 177E
471	471	of this code, then such independent executor may be required to give
472	472	bond, on proper proceedings had for that purpose as in the case of
473	473	personal representatives in a supervised administration, if it be
474	474	made to appear at any time that such independent executor is
475	475	mismanaging the property, or has betrayed or is about to betray the
476	476	independent executor's trust, or has in some other way become
477	477	disqualified.
478	478	Sec. 177R. REMOVAL OF INDEPENDENT EXECUTOR. (a) The
479	479	probate court, on its own motion or on motion of any interested
480	480	person, after the independent executor has been cited by personal
481	481	service to answer at a time and place fixed in the notice, may
482	482	remove an independent executor when:
483	483	(1) the independent executor fails to return within 90
484	484	days after qualification, unless such time is extended by order of
485	485	the court, an inventory of the property of the estate and list of
486	486	claims that have come to the independent executor's knowledge;
487	487	(2) sufficient grounds appear to support belief that
488	488	the independent executor has misapplied or embezzled, or that the
489	489	independent executor is about to misapply or embezzle, all or any
490	490	part of the property committed to the independent executor's care;
491	491	(3) the independent executor fails to make an
492	492	accounting which is required by law to be made;
493	493	(4) the independent executor fails to timely file the
494	494	affidavit or certificate required by Section 128A of this code;
495	495	(5) the independent executor is proved to have been
496	496	guilty of gross misconduct or gross mismanagement in the
497	497	performance of the independent executor's duties; or
498	498	(6) the independent executor becomes an incapacitated
499	499	person, or is sentenced to the penitentiary, or from any other cause
500	500	becomes legally incapacitated from properly performing the
501	501	independent executor's fiduciary duties.
502	502	(b) The order of removal shall state the cause of removal
503	503	and shall direct by order the disposition of the assets remaining in
504	504	the name or under the control of the removed executor. The order of
505	505	removal shall require that letters issued to the removed executor
506	506	shall be surrendered and that all letters shall be canceled of
507	507	record. If an independent executor is removed by the court under
508	508	this section, the court may, on application, appoint a successor
509	509	independent executor as provided by Section 177T of this code.
510	510	(c) An independent executor who defends an action for his
511	511	removal in good faith, whether successful or not, shall be allowed
512	512	out of the estate the independent executor's necessary expenses and
513	513	disbursements, including reasonable attorney's fees, in the
514	514	removal proceedings.
515	515	(d) Costs and expenses incurred by the party seeking removal
516	516	incident to removal of an independent executor appointed without
517	517	bond, including reasonable attorney's fees and expenses, may be
518	518	paid out of the estate.
519	519	Sec. 177S. POWERS OF AN ADMINISTRATOR WHO SUCCEEDS AN
520	520	INDEPENDENT EXECUTOR. (a) Grant of Powers by Court. Whenever a
521	521	person has died, or shall die, testate, owning property in this
522	522	state, and such person's will has been or shall be admitted to
523	523	probate by the court, and such probated will names an independent
524	524	executor or executors, or trustees acting in the capacity of
525	525	independent executors, to execute the terms and provisions of said
526	526	will, and such will grants to such independent executor, or
527	527	executors, or trustees acting in the capacity of independent
528	528	executors, the power to raise or borrow money and to mortgage, and
529	529	such independent executor, or executors, or trustees, have died or
530	530	shall die, resign, fail to qualify, or be removed from office,
531	531	leaving unexecuted parts or portions of the will of the testator,
532	532	and an administrator with the will annexed is appointed by the
533	533	probate court, and an administrator's bond is filed and approved by
534	534	the court, then in all such cases, the court may, in addition to the
535	535	powers conferred on such administrator under other provisions of
536	536	the laws of this state, authorize, direct, and empower such
537	537	administrator to do and perform the acts and deeds, clothed with the
538	538	rights, powers, authorities, and privileges, and subject to the
539	539	limitations, set forth in the subsequent provisions of this
540	540	section.
541	541	(b) Power to Borrow Money and Mortgage or Pledge Property.
542	542	The court, on application, citation, and hearing, may, by its
543	543	order, authorize, direct, and empower such administrator to raise
544	544	or borrow such sums of money and incur such obligations and debts as
545	545	the court shall, in its said order, direct, and to renew and extend
546	546	same from time to time, as the court, on application and order,
547	547	shall provide; and, if authorized by the court's order, to secure
548	548	such loans, obligations, and debts, by pledge or mortgage on
549	549	property or assets of the estate, real, personal, or mixed, on such
550	550	terms and conditions, and for such duration of time, as the court
551	551	shall consider to be to the best interest of the estate, and by its
552	552	order shall prescribe; and all such loans, obligations, debts,
553	553	pledges, and mortgages shall be valid and enforceable against the
554	554	estate and against such administrator in the administrator's
555	555	official capacity.
556	556	(c) Powers Limited to Those Granted by the Will. The court
557	557	may order and authorize such administrator to have and exercise the
558	558	powers and privileges set forth in Subsection (a) or (b) of this
559	559	section only to the extent that same are granted to or possessed by
560	560	the independent executor, or executors, or trustees acting in the
561	561	capacity of independent executors, under the terms of the probated
562	562	will of such deceased person, and then only in such cases as it
563	563	appears, at the hearing of the application, that at the time of the
564	564	appointment of such administrator, there are outstanding and unpaid
565	565	obligations and debts of the estate, or of the independent
566	566	executor, or executors, or trustees, chargeable against the estate,
567	567	or unpaid expenses of administration, or when the court appointing
568	568	such administrator orders the business of such estate to be carried
569	569	on and it becomes necessary, from time to time, under orders of the
570	570	court, for such administrator to borrow money and incur obligations
571	571	and indebtedness in order to protect and preserve the estate.
572	572	(d) Powers Other Than Those Relating to Borrowing Money and
573	573	Mortgaging or Pledging Property. The court, in addition, may, on
574	574	application, citation, and hearing, order, authorize, and empower
575	575	such administrator to assume, exercise, and discharge, under the
576	576	orders and directions of said court, made from time to time, all or
577	577	such part of the rights, powers, and authorities vested in and
578	578	delegated to, or possessed by, the independent executor, or
579	579	executors, or trustees acting in the capacity of independent
580	580	executors, under the terms of the will of such deceased person, as
581	581	the court finds to be to the best interest of the estate and shall,
582	582	from time to time, order and direct.
583	583	(e) Application for Grant of Powers. The granting to such
584	584	administrator by the court of some, or all, of the powers and
585	585	authorities set forth in this section shall be on application filed
586	586	by such administrator with the county clerk, setting forth such
587	587	facts as, in the judgment of the administrator, require the
588	588	granting of the power or authority requested.
589	589	(f) Citation. On the filing of such application, the clerk
590	590	shall issue citation to all persons interested in the estate,
591	591	stating the nature of the application, and requiring such persons
592	592	to appear on the return day named in such citation and show cause
593	593	why such application should not be granted, should they choose to do
594	594	so. Such citation shall be served by posting.
595	595	(g) Hearing and Order. The court shall hear such
596	596	application and evidence on the application, on or after the return
597	597	day named in the citation, and, if satisfied a necessity exists and
598	598	that it would be to the best interest of the estate to grant said
599	599	application in whole or in part, the court shall so order;
600	600	otherwise, the court shall refuse said application.
601	601	Sec. 177T. COURT-APPOINTED SUCCESSOR INDEPENDENT EXECUTOR.
602	602	(a) If the will of a testator names an independent executor who,
603	603	having qualified, fails for any reason to continue to serve, or is
604	604	removed for cause by the court, and the will does not name a
605	605	successor independent executor or if each successor executor named
606	606	in the will fails for any reason to qualify as executor or indicates
607	607	by affidavit filed with the application for an order continuing
608	608	independent administration the successor executor's inability or
609	609	unwillingness to serve as successor independent executor, all of
610	610	the distributees of the decedent as of the filing of the application
611	611	for an order continuing independent administration may apply to the
612	612	probate court for the appointment of a qualified person, firm, or
613	613	corporation to serve as successor independent executor. If the
614	614	probate court finds that continued administration of the estate is
615	615	necessary, the probate court shall enter an order continuing
616	616	independent administration and appointing the person, firm, or
617	617	corporation designated in the application as successor independent
618	618	executor, unless the probate court finds that it would not be in the
619	619	best interest of the estate to do so. Such successor shall serve
620	620	with all of the powers and privileges granted to the successor's
621	621	predecessor independent executor.
622	622	(b) If a distributee described in this section is an
623	623	incapacitated person, the guardian of the person of the distributee
624	624	may sign the application on behalf of the distributee. If the
625	625	probate court finds that either the continuing of independent
626	626	administration or the appointment of the person, firm, or
627	627	corporation designated in the application as successor independent
628	628	executor would not be in the best interest of the incapacitated
629	629	person, then, notwithstanding Subsection (a) of this section, the
630	630	probate court may not enter an order continuing independent
631	631	administration of the estate. If the distributee is an
632	632	incapacitated person and has no guardian of the person, the court
633	633	may appoint a guardian ad litem to make application on behalf of the
634	634	incapacitated person if the probate court considers such an
635	635	appointment necessary to protect the interest of such distributee.
636	636	(c) If a trust is created in the decedent's will, the person
637	637	or class of persons first eligible to receive the income from the
638	638	trust, determined as if the trust were to be in existence on the
639	639	date of the filing of the application for an order continuing
640	640	independent administration, shall, for the purposes of this
641	641	section, be considered to be the distributee or distributees on
642	642	behalf of such trust, and any other trust or trusts coming into
643	643	existence on the termination of such trust, and are authorized to
644	644	apply for an order continuing independent administration on behalf
645	645	of the trust without the consent or agreement of the trustee or any
646	646	other beneficiary of the trust, or the trustee or any beneficiary of
647	647	any other trust which may come into existence on the termination of
648	648	such trust.
649	649	(d) If a life estate is created either in the decedent's
650	650	will or by law, and if a life tenant is living at the time of the
651	651	filing of the application for an order continuing independent
652	652	administration, then the life tenant or life tenants, determined as
653	653	if the life estate were to commence on the date of the filing of the
654	654	application for an order continuing independent administration,
655	655	shall, for the purposes of this section, be considered to be the
656	656	distributee or distributees on behalf of the entire estate created,
657	657	and are authorized to apply for an order continuing independent
658	658	administration on behalf of the estate without the consent or
659	659	approval of any remainderman.
660	660	(e) If a decedent's will contains a provision that a
661	661	distributee must survive the decedent by a prescribed period of
662	662	time in order to take under the decedent's will, for the purposes of
663	663	determining who shall be the distributee under this section, it
664	664	shall be presumed that the distributees living at the time of the
665	665	filing of the application for an order continuing independent
666	666	administration of the decedent's estate survived the decedent for
667	667	the prescribed period.
668	668	(f) In the case of all decedents, for the purposes of
669	669	determining who shall be the distributees under this section, it
670	670	shall be presumed that no distributee living at the time the
671	671	application for an order continuing independent administration of
672	672	the decedent's estate is filed shall subsequently disclaim any
673	673	portion of such distributee's interest in the decedent's estate.
674	674	(g) If a distributee of a decedent's estate should die, and
675	675	if by virtue of such distributee's death such distributee's share of
676	676	the decedent's estate shall become payable to such distributee's
677	677	estate, then the deceased distributee's personal representative
678	678	may sign the application for an order continuing independent
679	679	administration of the decedent's estate under this section.
680	680	(h) If a successor independent executor is appointed under
681	681	this section, then, unless the probate court shall waive bond on
682	682	application for waiver, the successor independent executor shall be
683	683	required to enter into bond payable to and to be approved by the
684	684	judge and the judge's successors in a sum that is found by the judge
685	685	to be adequate under all circumstances, or a bond with one surety in
686	686	an amount that is found by the judge to be adequate under all
687	687	circumstances, if the surety is an authorized corporate surety.
688	688	(i) Absent proof of fraud or collusion on the part of a
689	689	judge, the judge may not be held civilly liable for the commission
690	690	of misdeeds or the omission of any required act of any person, firm,
691	691	or corporation designated as a successor independent executor under
692	692	this section. Section 36 of this code does not apply to an
693	693	appointment of a successor independent executor under this section.
694	694	PART 5. CLOSING AND DISTRIBUTIONS
695	695	Sec. 177U. ACCOUNTING AND DISTRIBUTION. (a) In addition to
696	696	or in lieu of the right to an accounting provided by Section 177D of
697	697	this code, at any time after the expiration of two years after the
698	698	date that an independent administration was created and the order
699	699	appointing an independent executor was entered, a person interested
700	700	in the estate may petition the court for an accounting and
701	701	distribution. The court may order an accounting to be made with the
702	702	court by the independent executor at such time as the court
703	703	considers proper. The accounting shall include the information that
704	704	the court considers necessary to determine whether any part of the
705	705	estate should be distributed.
706	706	(b) On receipt of the accounting and, after notice to the
707	707	independent executor and a hearing, unless the court finds a
708	708	continued necessity for administration of the estate, the court
709	709	shall order its distribution by the independent executor to the
710	710	distributees entitled to the property. If the court finds there is
711	711	a continued necessity for administration of the estate, the court
712	712	shall order the distribution of any portion of the estate that the
713	713	court finds should not be subject to further administration by the
714	714	independent executor. If any portion of the estate that is ordered
715	715	to be distributed is incapable of distribution without prior
716	716	partition or sale, the court shall order partition and
717	717	distribution, or sale, in the manner provided for the partition and
718	718	distribution of property incapable of division in supervised
719	719	estates.
720	720	(c) If all the property in the estate is ordered distributed
721	721	by the court and the estate is fully administered, the court may
722	722	also order the independent executor to file a final account with the
723	723	court and may enter an order closing the administration and
724	724	terminating the power of the independent executor to act as
725	725	executor.
726	726	Sec. 177V. RECEIPTS AND RELEASES FOR DISTRIBUTIONS BY
727	727	INDEPENDENT EXECUTOR. (a) An independent executor may not be
728	728	required to deliver tangible or intangible personal property to a
729	729	distributee unless the independent executor shall receive, at or
730	730	before the time of delivery of the property, a signed receipt or
731	731	other proof of delivery of the property to the distributee.
732	732	(b) An independent executor may not require a waiver or
733	733	release from the distributee as a condition of delivery of property
734	734	to a distributee.
735	735	Sec. 177W. JUDICIAL DISCHARGE OF INDEPENDENT EXECUTOR. (a)
736	736	After an estate has been administered and if there is no further
737	737	need for an independent administration of the estate, the
738	738	independent executor of the estate may file an action for
739	739	declaratory judgment under Chapter 37, Civil Practice and Remedies
740	740	Code, seeking to discharge the independent executor from any
741	741	liability involving matters relating to the past administration of
742	742	the estate that have been fully and fairly disclosed.
743	743	(b) On the filing of an action under this section, each
744	744	beneficiary of the estate shall be personally served with citation,
745	745	except for a beneficiary who has waived the issuance and service of
746	746	citation.
747	747	(c) In a proceeding under this section, the court may
748	748	require the independent executor to file a final account that
749	749	includes any information the court considers necessary to
750	750	adjudicate the independent executor's request for a discharge of
751	751	liability. The court may audit, settle, or approve a final account
752	752	filed under this subsection.
753	753	(d) On or before filing an action under this section, the
754	754	independent executor must distribute to the beneficiaries of the
755	755	estate any of the remaining assets or property of the estate that
756	756	remains in the independent executor's possession after all of the
757	757	estate's debts have been paid, except for a reasonable reserve of
758	758	assets that the independent executor may retain in a fiduciary
759	759	capacity pending court approval of the final account. The court may
760	760	review the amount of assets on reserve and may order the independent
761	761	executor to make further distributions under this section.
762	762	(e) Except as ordered by the court, the independent executor
763	763	is entitled to pay from the estate legal fees, expenses, or other
764	764	costs incurred in relation to a proceeding for judicial discharge
765	765	filed under this section. The independent executor shall be
766	766	personally liable to refund any amount of such fees, expenses, or
767	767	other costs not approved by the court as a proper charge against the
768	768	estate.
769	769	Sec. 177X. CLOSING INDEPENDENT ADMINISTRATION BY CLOSING
770	770	REPORT OR NOTICE OF CLOSING ESTATE. When all of the debts known to
771	771	exist against the estate have been paid, or when they have been paid
772	772	so far as the assets in the independent executor's possession will
773	773	permit, when there is no pending litigation, and when the
774	774	independent executor has distributed to the distributees entitled
775	775	to the estate all assets of the estate, if any, remaining after
776	776	payment of debts, the independent executor may file with the court a
777	777	closing report or a notice of closing of the estate.
778	778	(a) Closing Report. An independent executor may file a
779	779	closing report verified by affidavit that:
780	780	(1) shows:
781	781	(A) the property of the estate that came into the
782	782	independent executor's possession;
783	783	(B) the debts that have been paid;
784	784	(C) the debts, if any, still owing by the estate;
785	785	(D) the property of the estate, if any, remaining
786	786	on hand after payment of debts; and
787	787	(E) the names and addresses of the distributees
788	788	to whom the property of the estate, if any, remaining on hand after
789	789	payment of debts has been distributed; and
790	790	(2) includes signed receipts or other proof of
791	791	delivery of property to the distributees named in the closing
792	792	report if the closing report reflects that there was property
793	793	remaining on hand after payment of debts.
794	794	(b) Notice of Closing Estate. (1) An independent executor
795	795	is not required to but may file a notice of closing estate verified
796	796	by affidavit that states:
797	797	(A) that all debts known to exist against the
798	798	estate have been paid or that the debts have been paid so far as the
799	799	assets in the hands of the independent executor will permit;
800	800	(B) that all remaining assets of the estate, if
801	801	any, have been distributed; and
802	802	(C) the names and addresses of the distributees
803	803	to whom the property of the estate, if any, remaining on hand after
804	804	payment of debts has been distributed.
805	805	(2) Before filing the notice, the independent executor
806	806	shall provide all distributees of the estate with a copy of the
807	807	notice of closing estate. The notice of closing estate filed by the
808	808	independent executor shall include signed receipts or other proof
809	809	that all distributees have received a copy of the notice of closing
810	810	estate.
811	811	(c) Effect of Filing Closing Report or Notice of Closing
812	812	Estate. (1) The independent administration of an estate shall be
813	813	considered closed 30 days after the filing of a closing report or
814	814	notice of closing estate unless an interested person files an
815	815	objection within the 30-day period. If an interested person files
816	816	an objection, the independent administration of the estate shall be
817	817	closed when the objection has been disposed of or the court signs an
818	818	order closing the estate.
819	819	(2) The closing of an independent administration by
820	820	filing of a closing report or notice of closing estate terminates
821	821	the power and authority of the independent executor, but does not
822	822	relieve the independent executor from liability for any
823	823	mismanagement of the estate or from liability for any false
824	824	statements contained in the report or notice.
825	825	(3) When a closing report or notice of closing estate
826	826	has been filed, persons dealing with properties of the estate, or
827	827	with claims against the estate, shall deal directly with the
828	828	distributees of the estate; and the acts of such distributees with
829	829	respect to such properties or claims shall in all ways be valid and
830	830	binding as regards the persons with whom they deal, notwithstanding
831	831	any false statements made by the independent executor in such
832	832	report or notice.
833	833	(4) If the independent executor is required to give
834	834	bond, the independent executor's filing of the closing report and
835	835	proof of delivery, if required, automatically releases the sureties
836	836	on the bond from all liability for the future acts of the principal.
837	837	The filing of a notice of closing estate does not release the
838	838	sureties on the bond of an independent executor.
839	839	(5) An independent executor's closing report or notice
840	840	of closing estate shall constitute sufficient legal authority to
841	841	all persons owing any money, having custody of any property, or
842	842	acting as registrar or transfer agent or trustee of any evidence of
843	843	interest, indebtedness, property, or right that belongs to the
844	844	estate, for payment or transfer without additional administration
845	845	to the distributees described in the will as entitled to receive the
846	846	particular asset or who as heirs at law are entitled to receive the
847	847	asset. The distributees described in the will as entitled to
848	848	receive the particular asset or the heirs at law entitled to receive
849	849	the asset may enforce their right to the payment or transfer by
850	850	suit.
851	851	Sec. 177Y. PARTITION AND DISTRIBUTION OR SALE OF PROPERTY
852	852	INCAPABLE OF DIVISION. If the will does not distribute the entire
853	853	estate of the testator or provide a means for partition of the
854	854	estate, or if no will was probated, the independent executor may,
855	855	but may not be required to, petition the probate court for either a
856	856	partition and distribution of the estate or an order of sale of any
857	857	portion of the estate alleged by the independent executor and found
858	858	by the court to be incapable of a fair and equal partition and
859	859	distribution, or both. The estate or portion of the estate shall
860	860	either be partitioned and distributed or sold, or both, in the
861	861	manner provided for the partition and distribution of property and
862	862	the sale of property incapable of division in supervised estates.
863	863	Sec. 177Z. CLOSING INDEPENDENT ADMINISTRATION ON
864	864	APPLICATION BY DISTRIBUTEE. (a) At any time after an estate has
865	865	been fully administered and there is no further need for an
866	866	independent administration of such estate, any distributee may file
867	867	an application to close the administration; and, after citation on
868	868	the independent executor, and on hearing, the court may enter an
869	869	order:
870	870	(1) requiring the independent executor to file a
871	871	closing report meeting the requirements of Section 177X of this
872	872	code;
873	873	(2) closing the administration;
874	874	(3) terminating the power of the independent executor
875	875	to act as such; and
876	876	(4) releasing the sureties on any bond the independent
877	877	executor was required to give from all liability for the future acts
878	878	of the principal.
879	879	(b) The order of the court closing the independent
880	880	administration shall constitute sufficient legal authority to all
881	881	persons owing any money, having custody of any property, or acting
882	882	as registrar or transfer agent or trustee of any evidence of
883	883	interest, indebtedness, property, or right that belongs to the
884	884	estate, for payment or transfer without additional administration
885	885	to the distributees described in the will as entitled to receive the
886	886	particular asset or who as heirs at law are entitled to receive the
887	887	asset. The distributees described in the will as entitled to
888	888	receive the particular asset or the heirs at law entitled to receive
889	889	the asset may enforce their right to the payment or transfer by
890	890	suit.
891	891	Sec. 177AA. ISSUANCE OF LETTERS. At any time before the
892	892	authority of an independent executor has been terminated in the
893	893	manner set forth in this chapter, the clerk shall issue such number
894	894	of letters testamentary as the independent executor shall request.
895	895	Sec. 177BB. RIGHTS AND REMEDIES CUMULATIVE. The rights and
896	896	remedies conferred by this part are cumulative of other rights and
897	897	remedies to which a person interested in the estate may be entitled
898	898	under law.
899	899	Sec. 177CC. CLOSING PROCEDURES NOT REQUIRED. An independent
900	900	executor is not required to close the independent administration of
901	901	an estate under Section 177W or 177X of this code.
902	902	SECTION 2. Sections 145, 146, 147, 148, 149, 149A, 149B,
903	903	149C, 149D, 149E, 149F, 149G, 150, 151, 152, 153, 154, and 154A,
904	904	Texas Probate Code, are repealed.
905	905	SECTION 3. This Act takes effect September 1, 2009.