81R8628 KLA-F
By: Hartnett H.B. No. 3086
A BILL TO BE ENTITLED
AN ACT
relating to jurisdiction and venue of probate proceedings and
proceedings regarding powers of attorney and certain trusts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 3(bb), Texas Probate Code, is amended to
read as follows:
(bb) "Probate proceeding" is synonymous with the terms
"Probate matter," ["Probate proceedings,"] "Proceeding in
probate," and "Proceedings for probate." The term means a matter or
proceeding relating to the estate of a decedent [are synonymous]
and includes:
(1) the probate of a will, with or without
administration of the estate;
(2) the issuance of letters testamentary and of
administration;
(3) an heirship determination or small estate
affidavit, community property administration, and homestead and
family allowances;
(4) an application, petition, motion, or action
regarding the probate of a will or an estate administration,
including a claim for money owed by the decedent;
(5) a claim arising from an estate administration
and any action brought on the claim;
(6) the settling of a personal representative's
account of an estate and any other matter relating to the
settlement, partition, or distribution of an estate; and
(7) a will construction suit [include a matter or
proceeding relating to the estate of a decedent].
SECTION 2. Chapter I, Texas Probate Code, is amended by
adding Sections 4A, 4B, 4C, 4D, 4E, 4F, 4G, and 4H to read as
follows:
Sec. 4A. GENERAL PROBATE COURT JURISDICTION; APPEALS. (a)
All probate proceedings must be filed and heard in a court
exercising original probate jurisdiction. The court exercising
original probate jurisdiction also has jurisdiction of all matters
related to the probate proceeding as specified in Section 4B of this
code for that type of court.
(b) A probate court may exercise pendent and ancillary
jurisdiction as necessary to promote judicial efficiency and
economy.
(c) A final order issued by a probate court is appealable to
the court of appeals.
Sec. 4B. MATTERS RELATED TO PROBATE PROCEEDING. (a) For
purposes of this code, in a county in which there is no statutory
probate court or county court at law exercising original probate
jurisdiction, a matter related to a probate proceeding includes:
(1) an action against a personal representative or
former personal representative arising out of the representative's
performance of the duties of a personal representative;
(2) an action against a surety of a personal
representative or former personal representative;
(3) a claim brought by a personal representative on
behalf of an estate;
(4) an action brought against a personal
representative in the representative's capacity as personal
representative;
(5) an action for trial of title to real property that
is estate property, including the enforcement of a lien against the
property; and
(6) an action for trial of the right of property that
is estate property.
(b) For purposes of this code, in a county in which there is
no statutory probate court, but in which there is a county court at
law exercising original probate jurisdiction, a matter related to a
probate proceeding includes:
(1) all matters and actions described in Subsection
(a) of this section;
(2) the interpretation and administration of a
testamentary trust if the will creating the trust has been admitted
to probate in the court; and
(3) the interpretation and administration of an inter
vivos trust created by a decedent whose will has been admitted to
probate in the court.
(c) For purposes of this code, in a county in which there is
a statutory probate court, a matter related to a probate proceeding
includes:
(1) all matters and actions described in Subsections
(a) and (b) of this section; and
(2) any cause of action in which a personal
representative of an estate pending in the statutory probate court
is a party in the representative's capacity as personal
representative.
Sec. 4C. ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS.
(a) In a county in which there is no statutory probate court or
county court at law exercising original probate jurisdiction, the
county court has original jurisdiction of probate proceedings.
(b) In a county in which there is no statutory probate
court, but in which there is a county court at law exercising
original probate jurisdiction, the county court at law exercising
original probate jurisdiction and the county court have concurrent
original jurisdiction of probate proceedings, unless otherwise
provided by law. The judge of a county court may hear probate
proceedings while sitting for the judge of any other county court.
(c) In a county in which there is a statutory probate court,
the statutory probate court has original jurisdiction of probate
proceedings.
Sec. 4D. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN
COUNTY WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT.
(a) In a county in which there is no statutory probate court or
county court at law exercising original probate jurisdiction, when
a matter in a probate proceeding is contested, the judge of the
county court may, on the judge's own motion, or shall, on the motion
of any party to the proceeding, according to the motion:
(1) request the assignment of a statutory probate
court judge to hear the contested matter, as provided by Section
25.0022, Government Code; or
(2) transfer the contested matter to the district
court, which may then hear the contested matter as if originally
filed in the district court.
(b) If a party to a probate proceeding files a motion for the
assignment of a statutory probate court judge to hear a contested
matter in the proceeding before the judge of the county court
transfers the contested matter to a district court under this
section, the county judge shall grant the motion for the assignment
of a statutory probate court judge and may not transfer the matter
to the district court unless the party withdraws the motion.
(c) A party to a probate proceeding may file a motion for the
assignment of a statutory probate court judge under this section
before a matter in the proceeding becomes contested, and the motion
is given effect as a motion for assignment of a statutory probate
court judge under Subsection (a) of this section if the matter later
becomes contested.
(d) Notwithstanding any other law, a transfer of a contested
matter in a probate proceeding to a district court under any
authority other than the authority provided by this section:
(1) is disregarded for purposes of this section; and
(2) does not defeat the right of a party to the
proceeding to have the matter assigned to a statutory probate court
judge in accordance with this section.
(e) A statutory probate court judge assigned to a contested
matter under this section has the jurisdiction and authority
granted to a statutory probate court by this code. On resolution of
a contested matter for which a statutory probate court judge is
assigned under this section, including any appeal of the matter,
the statutory probate court judge shall return the matter to the
county court for further proceedings not inconsistent with the
orders of the statutory probate court or court of appeals, as
applicable.
(f) A district court to which a contested matter is
transferred under this section has the jurisdiction and authority
granted to a statutory probate court by this code. On resolution of
a contested matter transferred to the district court under this
section, including any appeal of the matter, the district court
shall return the matter to the county court for further proceedings
not inconsistent with the orders of the district court or court of
appeals, as applicable.
(g) The county court shall continue to exercise
jurisdiction over the management of the estate, other than a
contested matter, until final disposition of the contested matter
is made in accordance with this section. After a contested matter
is transferred to a district court, any matter related to the
probate proceeding may be brought in the district court. The
district court in which a matter related to the probate proceeding
is filed may, on its own motion or on the motion of any party, find
that the matter is not a contested matter and transfer the matter to
the county court with jurisdiction of the management of the estate.
(h) If a contested matter in a probate proceeding is
transferred to a district court under this section, the district
court has jurisdiction of any contested matter in the proceeding
that is subsequently filed, and the county court shall transfer
those contested matters to the district court. If a statutory
probate court judge is assigned under this section to hear a
contested matter in a probate proceeding, the statutory probate
court judge shall be assigned to hear any contested matter in the
proceeding that is subsequently filed.
(i) The clerk of a district court to which a contested
matter in a probate proceeding is transferred under this section
may perform in relation to the contested matter any function a
county clerk may perform with respect to that type of matter.
Sec. 4E. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN
COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a county in which
there is no statutory probate court, but in which there is a county
court at law exercising original probate jurisdiction, when a
matter in a probate proceeding is contested, the judge of the county
court may, on the judge's own motion, or shall, on the motion of any
party to the proceeding, transfer the contested matter to the
county court at law. In addition, the judge of the county court, on
the judge's own motion or on the motion of a party to the
proceeding, may transfer the entire proceeding to the county court
at law.
(b) A county court at law to which a proceeding is
transferred under this section may hear the proceeding as if
originally filed in that court. If only a contested matter in the
proceeding is transferred, on the resolution of the matter, the
matter shall be returned to the county court for further
proceedings not inconsistent with the orders of the county court at
law.
Sec. 4F. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING IN
COUNTY WITH STATUTORY PROBATE COURT. (a) In a county in which
there is a statutory probate court, the statutory probate court has
exclusive jurisdiction of all probate proceedings, regardless of
whether contested or uncontested. A cause of action related to the
probate proceeding must be brought in a statutory probate court
unless the jurisdiction of the statutory probate court is
concurrent with the jurisdiction of a district court as provided by
Section 4H of this code or with the jurisdiction of any other court.
(b) This section shall be construed in conjunction and in
harmony with Section 145 of this code and all other sections of this
code relating to independent executors, but may not be construed to
expand the court's control over an independent executor.
Sec. 4G. JURISDICTION OF STATUTORY PROBATE COURT WITH
RESPECT TO TRUSTS AND POWERS OF ATTORNEY. In a county in which
there is a statutory probate court, the statutory probate court has
jurisdiction of:
(1) an action by or against a trustee;
(2) an action involving an inter vivos trust,
testamentary trust, or charitable trust;
(3) an action against an agent or former agent under a
power of attorney arising out of the agent's performance of the
duties of an agent; and
(4) an action to determine the validity of a power of
attorney or to determine an agent's rights, powers, or duties under
a power of attorney.
Sec. 4H. CONCURRENT JURISDICTION WITH DISTRICT COURT. A
statutory probate court has concurrent jurisdiction with the
district court in:
(1) a personal injury, survival, or wrongful death
action by or against a person in the person's capacity as a personal
representative;
(2) an action by or against a trustee;
(3) an action involving an inter vivos trust,
testamentary trust, or charitable trust;
(4) an action involving a personal representative of
an estate in which each other party aligned with the personal
representative is not an interested person in that estate;
(5) an action against an agent or former agent under a
power of attorney arising out of the agent's performance of the
duties of an agent; and
(6) an action to determine the validity of a power of
attorney or to determine an agent's rights, powers, or duties under
a power of attorney.
SECTION 3. Section 5B, Texas Probate Code, is amended to
read as follows:
Sec. 5B. TRANSFER OF PROCEEDING BY STATUTORY PROBATE COURT.
Subject to Section 6B of this code, a [(a) A] judge of a statutory
probate court, on the motion of a party to the action or on the
motion of a person interested in an estate, may transfer to the
statutory probate [his] court from a district, county, or statutory
court a cause of action related to a probate proceeding
[appertaining to or incident to an estate] pending in the statutory
probate court or a cause of action in which a personal
representative of an estate pending in the statutory probate court
is a party [and may consolidate the transferred cause of action with
the other proceedings in the statutory probate court relating to
that estate].
[(b) Notwithstanding any other provision of this chapter, the
proper venue for an action by or against a personal representative
for personal injury, death, or property damages is determined under
Section 15.007, Civil Practice and Remedies Code.]
SECTION 4. Section 6, Texas Probate Code, is amended to read
as follows:
Sec. 6. VENUE FOR PROBATE OF WILLS AND GRANT OF LETTERS
[ADMINISTRATION OF ESTATES OF DECEDENTS]. Wills shall be admitted
to probate, and letters testamentary or of administration shall be
granted as follows:
(1) in [(a) In] the county where the deceased resided,
if the deceased [he] had a domicile or fixed place of residence in
this State; [.]
(2) if [(b) If] the deceased had no domicile or fixed
place of residence in this State but died in this State, then either
in the county where the [his] principal property of the deceased was
located at the time of [his] death, or in the county where the
deceased [he] died; [.]
(3) if the deceased [(c) If he] had no domicile or
fixed place of residence in this State, and died outside the limits
of this State, then in any county in this State where the [his]
nearest of kin of the deceased reside; and [.]
(4) if the deceased [(d) But if he] had no kindred in
this State, then in the county where the [his] principal estate of
the deceased was situated at the time of [his] death.
[(e) In the county where the applicant resides, when
administration is for the purpose only of receiving funds or money
due to a deceased person or his estate from any governmental source
or agency; provided, that unless the mother or father or spouse or
adult child of the deceased is applicant, citation shall be served
personally on the living parents and spouses and adult children, if
any, of the deceased person, or upon those who are alive and whose
addresses are known to the applicant.]
SECTION 5. Chapter I, Texas Probate Code, is amended by
adding Sections 6A, 6B, and 6C to read as follows:
Sec. 6A. VENUE FOR ACTION RELATED TO PROBATE PROCEEDING IN
STATUTORY PROBATE COURT. Except as provided by Section 6B of this
code:
(1) venue of any cause of action related to a probate
proceeding in a statutory probate court is proper in the statutory
probate court in which the decedent's estate is pending; and
(2) a statutory probate court judge may transfer a
cause of action as provided by Section 5B of this code from another
court to the statutory probate court even if venue for the action is
proper or mandatory in the county of the court from which the action
is to be transferred.
Sec. 6B. VENUE FOR CERTAIN ACTIONS INVOLVING PERSONAL
REPRESENTATIVE. Notwithstanding any other provision of this
chapter, the proper venue for an action by or against a personal
representative for personal injury, death, or property damages
related to the personal injury or death is determined under Section
15.007, Civil Practice and Remedies Code.
Sec. 6C. VENUE FOR HEIRSHIP PROCEEDINGS. (a) Heirs of a
decedent shall be determined:
(1) in the court of the county in which the proceedings
were last pending when the decedent's will has been admitted to
probate in this state or an administration has been granted in this
state on the decedent's estate;
(2) in the court of the county in which venue would be
proper for commencement of an administration of the decedent's
estate under Section 6 of this code if no will of the decedent has
been admitted to probate in this state and no administration has
been granted in this state on the decedent's estate; and
(3) notwithstanding any other provision of this
section or Section 6, 6A, or 6B of this code, in a probate court in
which the proceedings for the guardianship of the estate of a ward
who dies intestate were pending at the time of the ward's death if
there is no administration pending in the deceased ward's estate.
(b) A proceeding described by Subsection (a)(3) of this
section may be brought in the proceedings for the guardianship of
the ward's estate.
SECTION 6. Chapter I, Texas Probate Code, is amended by
amending Section 8 and adding Sections 8A and 8B to read as follows:
Sec. 8. CONCURRENT VENUE [AND TRANSFER OF PROCEEDINGS].
(a) Concurrent Venue. When two or more courts have concurrent
venue of a probate proceeding [an estate or a proceeding to declare
heirship under Section 48(a) of this code], the court in which the
probate proceeding [application for a proceeding in probate or
determination of heirship] is first filed shall have and retain
jurisdiction of the probate [estate or heirship] proceeding, [as
appropriate,] to the exclusion of the other court or courts. The
proceeding shall be deemed commenced by the filing of an
application averring facts sufficient to confer venue; and the
proceeding first legally commenced shall extend to all of the
property of the decedent or the decedent's estate. Provided,
however, that a bona fide purchaser of real property in reliance on
any such subsequent proceeding, without knowledge of its
invalidity, shall be protected in such purchase unless the decree
admitting the will to probate, determining heirship, or granting
administration in the prior proceeding is [shall be] recorded in
the office of the county clerk of the county in which such property
is located.
(b) Probate Proceedings in More Than One County. If a
probate proceeding [in probate or to declare heirship under Section
48(a) of this code] is commenced in more than one county, the
proceeding shall be stayed except in the county where first
commenced until final determination of venue in the county where
first commenced. If the proper venue is finally determined to be in
another county, the clerk, after making and retaining a true copy of
the entire file in the case, shall transmit the original file to the
proper county, and the proceeding shall, on the transfer of the
file, [thereupon] be had in the proper county in the same manner as
if the proceeding had originally been instituted in that county
[therein].
Sec. 8A. JURISDICTION TO DETERMINE VENUE. A court in which
an application for a probate proceeding has been filed has the
authority to determine the venue of that proceeding and of any
proceeding related to the probate proceeding, subject to Section 8
of this code. The court's determination is not subject to
collateral attack.
Sec. 8B. TRANSFER OF VENUE IN PROBATE PROCEEDINGS. (a) [(c)
Transfer of Proceeding.
[(1)] Transfer for Want of Venue. If it appears to the
court at any time before the final decree that a probate [the]
proceeding was commenced in a court which did not have priority of
venue over such proceeding, the court shall, on the application of
any interested person, transfer the proceeding to the proper county
by transmitting to the proper court in such county the original file
in such case, together with certified copies of all entries in the
minutes theretofore made, and the probate proceeding [of the will,
determination of heirship, or administration of the estate] in such
county shall be completed in the same manner as if the proceeding
had originally been instituted in that county. However
[therein; but], if the question as to priority of venue is not
raised before final decree in the proceedings is announced, the
finality of such decree shall not be affected by any error in venue.
(b) [(2)] Transfer for Convenience of the Estate. If it
appears to the court at any time before the probate proceeding
[estate is closed or, if there is no administration of the estate,
when the proceeding in probate or to declare heirship] is concluded
that it would be in the best interest of the estate or, if there is
no administration of the estate, that it would be in the best
interest of the heirs or beneficiaries of the decedent's will, the
court, in its discretion, may order the proceeding transferred to
the proper court in any other county in this State. The clerk of
the court from which the proceeding is transferred shall transmit
to the court to which the proceeding is transferred the original
file in the proceeding and a certified copy of the index.
(c) [(d)] Validation of Prior Proceedings. When a probate
proceeding is transferred to another county under any provision of
this section or Section 8A of this code [Code], all orders entered
in connection with the proceeding shall be valid and shall be
recognized in the second court, provided such orders were made and
entered in conformance with the procedure prescribed by this code
[Code].
[(e) Jurisdiction to Determine Venue. Any court in which
there has been filed an application for a proceeding in probate or
determination of heirship shall have full jurisdiction to determine
the venue of the proceeding in probate or heirship proceeding, and
of any proceeding relating thereto, and its determination shall not
be subject to collateral attack.]
SECTION 7. Section 48(a), Texas Probate Code, is amended to
read as follows:
(a) When a person dies intestate owning or entitled to real
or personal property in Texas, and there shall have been no
administration in this State upon the decedent's [his] estate; or
when there has been a will probated in this State or elsewhere, or
an administration in this State upon the estate of such decedent,
and any real or personal property in this State has been omitted
from such will or from such administration, or no final disposition
thereof has been made in such administration, the court of the
county in which such proceedings were last pending, or in the event
no will of such decedent has been admitted to probate in this State,
and no administration has been granted in this State upon the estate
of such decedent, then the court of the county in which venue would
be proper [for commencement of an administration of the decedent's
estate] under Section 6C [6] of this code, may determine and declare
in the manner hereinafter provided who are the heirs and only heirs
of such decedent, and their respective shares and interests, under
the laws of this State, in the estate of such decedent, and
proceedings therefor shall be known as proceedings to declare
heirship.
SECTION 8. Section 25.0022(i), Government Code, is amended
to read as follows:
(i) A judge assigned under this section has the
jurisdiction, powers, and duties given by Sections 4A, 4C, 4F, 4G,
4H [5, 5A], 5B, 606, 607, and 608, Texas Probate Code, to statutory
probate court judges by general law.
SECTION 9. Section 25.1132(c), Government Code, is amended
to read as follows:
(c) A county court at law in Hood County has concurrent
jurisdiction with the district court in:
(1) civil cases in which the matter in controversy
exceeds $500 but does not exceed $250,000, excluding interest;
(2) family law cases and related proceedings;
(3) contested probate matters under Section 4D(a)
[5(b)], Texas Probate Code; and
(4) contested guardianship matters under Section
606(b), Texas Probate Code.
SECTION 10. Section 25.1863(b), Government Code, is amended
to read as follows:
(b) A county court at law has concurrent jurisdiction with
the district court over contested probate
matters. Notwithstanding the requirement in [Subsection (b),]
Section 4D(a) [5], Texas Probate Code, that the judge of the
constitutional county court transfer a contested probate
proceeding to the district court, the judge of the constitutional
county court shall transfer the proceeding under that section to
either a county court at law in Parker County or a district court in
Parker County. A county court at law has the jurisdiction, powers,
and duties that a district court has under [Subsection (b),]
Section 4D(a) [5], Texas Probate Code, for the transferred
proceeding, and the county clerk acts as clerk for the
proceeding. The contested proceeding may be transferred between a
county court at law in Parker County and a district court in Parker
County as provided by local rules of administration.
SECTION 11. Sections 4, 5, and 5A, Texas Probate Code, are
repealed.
SECTION 12. The changes in law made by this Act apply only
to an action filed or a proceeding commenced on or after the
effective date of this Act. An action filed or proceeding commenced
before the effective date of this Act is governed by the law in
effect on the date the action was filed or the proceeding was
commenced, and the former law is continued in effect for that
purpose.
SECTION 13. This Act takes effect September 1, 2009.