81R393 KLA-D
By: Naishtat H.B. No. 585
A BILL TO BE ENTITLED
AN ACT
relating to records related to an estate of a decedent or
incapacitated person.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 8(c)(1), Texas Probate Code, is amended
to read as follows:
(1) Transfer for Want of Venue. If it appears to the
court at any time before the final decree that 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
judge's probate docket [minutes] theretofore made, and the probate
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 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.
SECTION 2. Section 13, Texas Probate Code, is amended to
read as follows:
Sec. 13. JUDGE'S PROBATE DOCKET. The county clerk shall
keep a record book to be styled "Judge's Probate Docket," and shall
enter therein:
(a) The name of each person upon whose person or estate
proceedings are had or sought to be had.
(b) The name of the executor or administrator or of the
applicant for letters.
(c) The date of the filing of the original application for
probate proceedings.
(d) A notation [minute] of each order, judgment, decree, and
proceeding had in each estate, with the date thereof.
(e) A number for each estate upon the docket in the order in
which proceedings are commenced, and each paper filed in an estate
shall be given the corresponding docket number of the estate.
SECTION 3. Section 23, Texas Probate Code, is amended to
read as follows:
Sec. 23. DECREES [AND SIGNING OF MINUTES]. All decisions,
orders, decrees, and judgments of the county court in probate
matters shall be rendered in open court except in cases where it is
otherwise specially provided. [The probate minutes shall be
approved and signed by the judge on the first day of each month,
except, however, that if the first day of the month falls on a
Sunday, such approval shall be entered on the preceding or
succeeding day.]
SECTION 4. Section 51, Texas Probate Code, is amended to
read as follows:
Sec. 51. TRANSFER OF PROCEEDING WHEN WILL PROBATED OR
ADMINISTRATION GRANTED. If an administration upon the estate of
any such decedent shall be granted in the State, or if the will of
such decedent shall be admitted to probate in this State, after the
institution of a proceeding to declare heirship, the court in which
such proceeding is pending shall, by an order entered of record
therein, transfer the cause to the court of the county in which such
administration shall have been granted, or such will shall have
been probated, and thereupon the clerk of the court in which such
proceeding was originally filed shall send to the clerk of the court
named in such order, a certified transcript of all pleadings,
[docket] entries in the judge's probate docket, and orders of the
court in such cause. The clerk of the court to which such cause
shall be transferred shall file the transcript and record the same
in the judge's probate docket [minutes] of that [the] court and
shall docket such cause, and the same shall thereafter proceed as
though originally filed in that court. The court, in its
discretion, may consolidate the cause so transferred with the
pending proceeding.
SECTION 5. Section 53(a), Texas Probate Code, is amended to
read as follows:
(a) The court in its discretion may require all or any part
of the evidence admitted in a proceeding to declare heirship to be
reduced to writing, and subscribed and sworn to by the witnesses,
respectively, and filed in the cause, and recorded in the judge's
probate docket [minutes of the court].
SECTION 6. Section 95(d), Texas Probate Code, is amended to
read as follows:
(d) Probate Accomplished by Recording.
(1) Will admitted in domiciliary jurisdiction. If the
will has been probated or established in the jurisdiction in which
the testator was domiciled at the time of his death, it shall be the
ministerial duty of the clerk to record such will and the evidence
of its probate or establishment in the judge's probate docket
[minutes of the court]. No order of the court is necessary. When so
filed and recorded, the will shall be deemed to be admitted to
probate, and shall have the same force and effect for all purposes
as if the original will had been probated by order of the court,
subject to contest in the manner and to the extent hereinafter
provided.
(2) Will admitted in non-domiciliary jurisdiction. If
the will has been probated or established in another jurisdiction
not the domicile of the testator, its probate in this State may be
contested in the same manner as if the testator had been domiciled
in this State at the time of his death. If no contest is filed, the
clerk shall record such will and the evidence of its probate or
establishment in the judge's probate docket [minutes of the court],
and no order of the court shall be necessary. When so filed and
recorded, it shall be deemed to be admitted to probate, and shall
have the same force and effect for all purposes as if the original
will had been probated by order of the court, subject to contest in
the manner and to the extent hereafter provided.
SECTION 7. Section 101, Texas Probate Code, is amended to
read as follows:
Sec. 101. NOTICE OF CONTEST OF FOREIGN WILL. Within the
time permitted for the contest of a foreign will in this State,
verified notice may be filed and recorded in the judge's probate
docket [minutes] of the court in this State in which the will was
probated, or the deed records of any county in this State in which
such will was recorded, that proceedings have been instituted to
contest the will in the foreign jurisdiction where it was probated
or established. Upon such filing and recording, the force and
effect of the probate or recording of the will shall cease until
verified proof is filed and recorded that the foreign proceedings
have been terminated in favor of the will, or that such proceedings
were never actually instituted.
SECTION 8. Section 190(d), Texas Probate Code, is amended
to read as follows:
(d) Filing and Recording of Oaths. All such oaths may be
taken before any officer authorized to administer oaths, and shall
be filed with the clerk of the court granting the letters, and shall
be recorded in the judge's probate docket [minutes of such court].
SECTION 9. Section 369(b), Texas Probate Code, is amended
to read as follows:
(b) Procedure for Authorizing Pooling or Unitization.
Pooling or unitization, when not adequately provided for by an
existing lease or leases on property owned by the estate, may be
authorized by the court in which the proceedings are pending
pursuant to and in conformity with the following rules:
(1) Contents of Application. The personal
representative of the estate shall file with the county clerk of the
county where the probate proceeding is pending his written
application for authority (a) to enter into pooling or unitization
agreements supplementing, amending, or otherwise relating to, any
existing lease or leases covering property owned by the estate, or
(b) to commit royalties or other interest in minerals, whether
subject to lease or not, to a pooling or unitization agreement. The
application shall also (c) describe the property sufficiently, as
required in original application to lease, (d) describe briefly the
lease or leases, if any, to which the interest of the estate is
subject, and (e) set out the reasons why the proposed agreement
concerning such property should be made. A true copy of the
proposed agreement shall be attached to the application and by
reference made a part thereof, but the agreement shall not be
recorded in the judge's probate docket [minutes]. The clerk shall
immediately, after such application is filed, call it to the
attention of the judge.
(2) Notice Not Necessary. No notice of the filing of
such application by advertising, citation, or otherwise, is
required.
(3) Hearing of Application. A hearing on such
application may be held by the judge at any time agreeable to the
parties to the proposed agreement, and the judge shall hear proof
and satisfy himself as to whether or not it is to the best interest
of the estate that the proposed agreement be authorized. The
hearing may be continued from day to day and from time to time as the
court finds to be necessary.
(4) Action of Court and Contents of Order. If the court
finds that the pool or unit to which the agreement relates will be
operated in such a manner as to protect correlative rights or to
prevent the physical or economic waste of oil, liquid hydrocarbons,
gas (including all liquid hydrocarbons in the gaseous phase in the
reservoir), gaseous elements, or other mineral subject thereto;
that it is to the best interest of the estate that the agreement be
executed; and that the agreement conforms substantially with the
permissible provisions of Subsection (a) hereof, he shall enter an
order setting out the findings made by him, authorizing execution
of the agreement (with or without payment of cash consideration
according to the agreement). If cash consideration is to be paid
for the agreement, findings as to the necessity of increased or
additional bond, as in making of leases upon payment of the cash
bonus therefor, shall also be made, and no such agreement shall be
valid until the increased or additional bond required by the court,
if any, has been approved by the judge and filed with the clerk. The
date of the court's order shall be the effective date of the
agreement, if not stipulated in such agreement.
SECTION 10. Section 409, Texas Probate Code, is amended to
read as follows:
Sec. 409. MONEY BECOMING DUE PENDING FINAL DISCHARGE.
Until the order of final discharge of the personal representative
is entered in the judge's probate docket [minutes of the court],
money or other thing of value falling due to the estate while the
account for final settlement is pending may be paid, delivered, or
tendered to the personal representative, who shall issue receipt
therefor, and the obligor and/or payor shall be thereby discharged
of the obligation for all purposes.
SECTION 11. Section 430, Texas Probate Code, is amended to
read as follows:
Sec. 430. RECEIPT OF COMPTROLLER. Whenever an executor or
administrator pays the comptroller any funds of the estate he
represents, under the preceding provisions of this Code, he shall
take from the comptroller a receipt for such payment, with official
seal attached, and shall file the same with the clerk of the court
ordering such payment; and such receipt shall be recorded in the
judge's probate docket [minutes of the court].
SECTION 12. Section 609(b), Texas Probate Code, is amended
to read as follows:
(b) The probate court that transfers a proceeding under this
section to a court with proper jurisdiction over suits affecting
the parent-child relationship shall send to the court to which the
transfer is made the complete files in all matters affecting the
guardianship of the person of the minor and certified copies of all
entries in the judge's guardianship docket [minutes]. The
transferring court shall keep a copy of the transferred files. If
the transferring court retains jurisdiction of the guardianship of
the estate of the minor or of another minor who was the subject of
the suit, the court shall send a copy of the complete files to the
court to which the transfer is made and shall keep the original
files.
SECTION 13. Section 623(a), Texas Probate Code, is amended
to read as follows:
(a) The county clerk shall keep a record book to be styled
"Judge's Guardianship Docket" and shall enter in the record book:
(1) the name of each person on whose person or estate a
proceeding is had or is sought to be had;
(2) the name of the guardian of the estate or person or
of the applicant for letters;
(3) the date the original application for a
guardianship proceeding was filed;
(4) a notation [minute], including the date, of each
order, judgment, decree, and proceeding in each estate; and
(5) a number of each guardianship on the docket in the
order in which a proceeding is commenced.
SECTION 14. Sections 631(b) and (c), Texas Probate Code,
are amended to read as follows:
(b) By transmitting to the proper court in the proper county
for venue purposes the original file in the case, with certified
copies of all entries in the judge's guardianship docket [minutes]
made in the file, an administration of the guardianship in the
proper county for venue purposes shall be completed in the same
manner as if the proceeding had originally been instituted in that
county.
(c) 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 entries in the judge's guardianship docket [minutes]
that relate to the proceeding.
SECTION 15. Section 650, Texas Probate Code, is amended to
read as follows:
Sec. 650. DECREES [AND SIGNING OF MINUTES]. A decision,
order, decree, or judgment of the court in a guardianship matter
must be rendered in open court, except in a case in which it is
otherwise expressly provided. [The judge shall approve and sign
the guardianship minutes on the first day of each month. If the
first day of the month falls on a Saturday, Sunday, or legal
holiday, the judge's approval shall be entered on the preceding or
succeeding day.]
SECTION 16. Section 753, Texas Probate Code, is amended to
read as follows:
Sec. 753. MONEY BECOMING DUE PENDING FINAL DISCHARGE.
Money or any other thing of value falling due to the estate or ward
while the account for final settlement is pending, other than money
or any other thing of value held under Section 703(c) of this code,
until the order of final discharge of the guardian is entered in the
judge's guardianship docket [minutes of the court], may be paid,
delivered, or tendered to the emancipated ward, the guardian, or
the personal representative of the deceased ward's estate, who
shall issue a receipt for the money or other thing of value, and the
obligor or payor shall be discharged of the obligation for all
purposes.
SECTION 17. Section 849(c), Texas Probate Code, is amended
to read as follows:
(c) The guardian of the estate shall file with the county
clerk of the county in which the guardianship proceeding is pending
the guardian's written application for authority to enter into a
pooling or unitization agreement supplementing, amending, or
otherwise relating to, any existing lease covering property owned
by the estate, or to commit royalties or other interest in minerals,
whether subject to lease or not, to a pooling or unitization
agreement. The application must also describe the property
sufficiently as required in the original application to lease,
describe briefly the lease to which the interest of the estate is
subject, and set out the reasons the proposed agreement concerning
the property should be made. A true copy of the proposed agreement
shall be attached to the application and by reference made a part of
the application, but the agreement may not be recorded in the
judge's guardianship docket [minutes]. The clerk shall
immediately, after the application is filed, call it to the
attention of the judge.
SECTION 18. Sections 885(a), (b), and (g), Texas Probate
Code, are amended to read as follows:
(a) When the estate of a minor or other incapacitated person
or any portion of the estate of the minor or other incapacitated
person appears in danger of injury, loss, or waste and in need of a
guardianship or other representative and there is no guardian of
the estate who is qualified in this state and a guardian is not
needed, the county judge of the county in which the minor or other
incapacitated person resides or in which the endangered estate is
located shall enter an order, with or without application,
appointing a suitable person as receiver to take charge of the
estate. The court order shall require a receiver appointed under
this section to give bond as in ordinary receiverships in an amount
the judge deems necessary to protect the estate. The court order
shall specify the duties and powers of the receiver as the judge
deems necessary for the protection, conservation, and preservation
of the estate. The clerk shall enter an order made under this
section in the judge's guardianship docket [on the minutes of the
court]. The person who is appointed as receiver shall make and
submit a bond for the judge's approval and shall file the bond, when
approved, with the clerk. The person who is appointed receiver
shall proceed to take charge of the endangered estate pursuant to
the powers and duties vested in the person by the order of
appointment and subsequent orders made by the judge.
(b) During the pendency of the receivership, when the needs
of the minor or other incapacitated person require the use of the
income or corpus of the estate for the education, clothing, or
subsistence of the minor or other incapacitated person, the judge,
with or without application, shall enter an order in the judge's
guardianship docket [on the minutes of the court] that appropriates
an amount of income or corpus that is sufficient for that purpose.
The receiver shall use the amount appropriated by the court to pay a
claim for the education, clothing, or subsistence of the minor or
other incapacitated person that is presented to the judge for
approval and ordered by the judge to be paid.
(g) An order or a bond, report, account, or notice in a
receivership proceeding must be recorded in the judge's
guardianship docket [minutes of the court].
SECTION 19. The following laws are repealed:
(1) Section 26.004(c), Government Code; and
(2) Sections 3(u) and 601(17), Texas Probate Code.
SECTION 20. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2009.