Texas 2009 - 81st Regular

Texas House Bill HB585 Compare Versions

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1	1	81R393 KLA-D
2	2	By: Naishtat H.B. No. 585
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to records related to an estate of a decedent or
8	8	incapacitated person.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 8(c)(1), Texas Probate Code, is amended
11	11	to read as follows:
12	12	(1) Transfer for Want of Venue. If it appears to the
13	13	court at any time before the final decree that the proceeding was
14	14	commenced in a court which did not have priority of venue over such
15	15	proceeding, the court shall, on the application of any interested
16	16	person, transfer the proceeding to the proper county by
17	17	transmitting to the proper court in such county the original file in
18	18	such case, together with certified copies of all entries in the
19	19	judge's probate docket [minutes] theretofore made, and the probate
20	20	of the will, determination of heirship, or administration of the
21	21	estate in such county shall be completed in the same manner as if
22	22	the proceeding had originally been instituted therein; but, if the
23	23	question as to priority of venue is not raised before final decree
24	24	in the proceedings is announced, the finality of such decree shall
25	25	not be affected by any error in venue.
26	26	SECTION 2. Section 13, Texas Probate Code, is amended to
27	27	read as follows:
28	28	Sec. 13. JUDGE'S PROBATE DOCKET. The county clerk shall
29	29	keep a record book to be styled "Judge's Probate Docket," and shall
30	30	enter therein:
31	31	(a) The name of each person upon whose person or estate
32	32	proceedings are had or sought to be had.
33	33	(b) The name of the executor or administrator or of the
34	34	applicant for letters.
35	35	(c) The date of the filing of the original application for
36	36	probate proceedings.
37	37	(d) A notation [minute] of each order, judgment, decree, and
38	38	proceeding had in each estate, with the date thereof.
39	39	(e) A number for each estate upon the docket in the order in
40	40	which proceedings are commenced, and each paper filed in an estate
41	41	shall be given the corresponding docket number of the estate.
42	42	SECTION 3. Section 23, Texas Probate Code, is amended to
43	43	read as follows:
44	44	Sec. 23. DECREES [AND SIGNING OF MINUTES]. All decisions,
45	45	orders, decrees, and judgments of the county court in probate
46	46	matters shall be rendered in open court except in cases where it is
47	47	otherwise specially provided. [The probate minutes shall be
48	48	approved and signed by the judge on the first day of each month,
49	49	except, however, that if the first day of the month falls on a
50	50	Sunday, such approval shall be entered on the preceding or
51	51	succeeding day.]
52	52	SECTION 4. Section 51, Texas Probate Code, is amended to
53	53	read as follows:
54	54	Sec. 51. TRANSFER OF PROCEEDING WHEN WILL PROBATED OR
55	55	ADMINISTRATION GRANTED. If an administration upon the estate of
56	56	any such decedent shall be granted in the State, or if the will of
57	57	such decedent shall be admitted to probate in this State, after the
58	58	institution of a proceeding to declare heirship, the court in which
59	59	such proceeding is pending shall, by an order entered of record
60	60	therein, transfer the cause to the court of the county in which such
61	61	administration shall have been granted, or such will shall have
62	62	been probated, and thereupon the clerk of the court in which such
63	63	proceeding was originally filed shall send to the clerk of the court
64	64	named in such order, a certified transcript of all pleadings,
65	65	[docket] entries in the judge's probate docket, and orders of the
66	66	court in such cause. The clerk of the court to which such cause
67	67	shall be transferred shall file the transcript and record the same
68	68	in the judge's probate docket [minutes] of that [the] court and
69	69	shall docket such cause, and the same shall thereafter proceed as
70	70	though originally filed in that court. The court, in its
71	71	discretion, may consolidate the cause so transferred with the
72	72	pending proceeding.
73	73	SECTION 5. Section 53(a), Texas Probate Code, is amended to
74	74	read as follows:
75	75	(a) The court in its discretion may require all or any part
76	76	of the evidence admitted in a proceeding to declare heirship to be
77	77	reduced to writing, and subscribed and sworn to by the witnesses,
78	78	respectively, and filed in the cause, and recorded in the judge's
79	79	probate docket [minutes of the court].
80	80	SECTION 6. Section 95(d), Texas Probate Code, is amended to
81	81	read as follows:
82	82	(d) Probate Accomplished by Recording.
83	83	(1) Will admitted in domiciliary jurisdiction. If the
84	84	will has been probated or established in the jurisdiction in which
85	85	the testator was domiciled at the time of his death, it shall be the
86	86	ministerial duty of the clerk to record such will and the evidence
87	87	of its probate or establishment in the judge's probate docket
88	88	[minutes of the court]. No order of the court is necessary. When so
89	89	filed and recorded, the will shall be deemed to be admitted to
90	90	probate, and shall have the same force and effect for all purposes
91	91	as if the original will had been probated by order of the court,
92	92	subject to contest in the manner and to the extent hereinafter
93	93	provided.
94	94	(2) Will admitted in non-domiciliary jurisdiction. If
95	95	the will has been probated or established in another jurisdiction
96	96	not the domicile of the testator, its probate in this State may be
97	97	contested in the same manner as if the testator had been domiciled
98	98	in this State at the time of his death. If no contest is filed, the
99	99	clerk shall record such will and the evidence of its probate or
100	100	establishment in the judge's probate docket [minutes of the court],
101	101	and no order of the court shall be necessary. When so filed and
102	102	recorded, it shall be deemed to be admitted to probate, and shall
103	103	have the same force and effect for all purposes as if the original
104	104	will had been probated by order of the court, subject to contest in
105	105	the manner and to the extent hereafter provided.
106	106	SECTION 7. Section 101, Texas Probate Code, is amended to
107	107	read as follows:
108	108	Sec. 101. NOTICE OF CONTEST OF FOREIGN WILL. Within the
109	109	time permitted for the contest of a foreign will in this State,
110	110	verified notice may be filed and recorded in the judge's probate
111	111	docket [minutes] of the court in this State in which the will was
112	112	probated, or the deed records of any county in this State in which
113	113	such will was recorded, that proceedings have been instituted to
114	114	contest the will in the foreign jurisdiction where it was probated
115	115	or established. Upon such filing and recording, the force and
116	116	effect of the probate or recording of the will shall cease until
117	117	verified proof is filed and recorded that the foreign proceedings
118	118	have been terminated in favor of the will, or that such proceedings
119	119	were never actually instituted.
120	120	SECTION 8. Section 190(d), Texas Probate Code, is amended
121	121	to read as follows:
122	122	(d) Filing and Recording of Oaths. All such oaths may be
123	123	taken before any officer authorized to administer oaths, and shall
124	124	be filed with the clerk of the court granting the letters, and shall
125	125	be recorded in the judge's probate docket [minutes of such court].
126	126	SECTION 9. Section 369(b), Texas Probate Code, is amended
127	127	to read as follows:
128	128	(b) Procedure for Authorizing Pooling or Unitization.
129	129	Pooling or unitization, when not adequately provided for by an
130	130	existing lease or leases on property owned by the estate, may be
131	131	authorized by the court in which the proceedings are pending
132	132	pursuant to and in conformity with the following rules:
133	133	(1) Contents of Application. The personal
134	134	representative of the estate shall file with the county clerk of the
135	135	county where the probate proceeding is pending his written
136	136	application for authority (a) to enter into pooling or unitization
137	137	agreements supplementing, amending, or otherwise relating to, any
138	138	existing lease or leases covering property owned by the estate, or
139	139	(b) to commit royalties or other interest in minerals, whether
140	140	subject to lease or not, to a pooling or unitization agreement. The
141	141	application shall also (c) describe the property sufficiently, as
142	142	required in original application to lease, (d) describe briefly the
143	143	lease or leases, if any, to which the interest of the estate is
144	144	subject, and (e) set out the reasons why the proposed agreement
145	145	concerning such property should be made. A true copy of the
146	146	proposed agreement shall be attached to the application and by
147	147	reference made a part thereof, but the agreement shall not be
148	148	recorded in the judge's probate docket [minutes]. The clerk shall
149	149	immediately, after such application is filed, call it to the
150	150	attention of the judge.
151	151	(2) Notice Not Necessary. No notice of the filing of
152	152	such application by advertising, citation, or otherwise, is
153	153	required.
154	154	(3) Hearing of Application. A hearing on such
155	155	application may be held by the judge at any time agreeable to the
156	156	parties to the proposed agreement, and the judge shall hear proof
157	157	and satisfy himself as to whether or not it is to the best interest
158	158	of the estate that the proposed agreement be authorized. The
159	159	hearing may be continued from day to day and from time to time as the
160	160	court finds to be necessary.
161	161	(4) Action of Court and Contents of Order. If the court
162	162	finds that the pool or unit to which the agreement relates will be
163	163	operated in such a manner as to protect correlative rights or to
164	164	prevent the physical or economic waste of oil, liquid hydrocarbons,
165	165	gas (including all liquid hydrocarbons in the gaseous phase in the
166	166	reservoir), gaseous elements, or other mineral subject thereto;
167	167	that it is to the best interest of the estate that the agreement be
168	168	executed; and that the agreement conforms substantially with the
169	169	permissible provisions of Subsection (a) hereof, he shall enter an
170	170	order setting out the findings made by him, authorizing execution
171	171	of the agreement (with or without payment of cash consideration
172	172	according to the agreement). If cash consideration is to be paid
173	173	for the agreement, findings as to the necessity of increased or
174	174	additional bond, as in making of leases upon payment of the cash
175	175	bonus therefor, shall also be made, and no such agreement shall be
176	176	valid until the increased or additional bond required by the court,
177	177	if any, has been approved by the judge and filed with the clerk. The
178	178	date of the court's order shall be the effective date of the
179	179	agreement, if not stipulated in such agreement.
180	180	SECTION 10. Section 409, Texas Probate Code, is amended to
181	181	read as follows:
182	182	Sec. 409. MONEY BECOMING DUE PENDING FINAL DISCHARGE.
183	183	Until the order of final discharge of the personal representative
184	184	is entered in the judge's probate docket [minutes of the court],
185	185	money or other thing of value falling due to the estate while the
186	186	account for final settlement is pending may be paid, delivered, or
187	187	tendered to the personal representative, who shall issue receipt
188	188	therefor, and the obligor and/or payor shall be thereby discharged
189	189	of the obligation for all purposes.
190	190	SECTION 11. Section 430, Texas Probate Code, is amended to
191	191	read as follows:
192	192	Sec. 430. RECEIPT OF COMPTROLLER. Whenever an executor or
193	193	administrator pays the comptroller any funds of the estate he
194	194	represents, under the preceding provisions of this Code, he shall
195	195	take from the comptroller a receipt for such payment, with official
196	196	seal attached, and shall file the same with the clerk of the court
197	197	ordering such payment; and such receipt shall be recorded in the
198	198	judge's probate docket [minutes of the court].
199	199	SECTION 12. Section 609(b), Texas Probate Code, is amended
200	200	to read as follows:
201	201	(b) The probate court that transfers a proceeding under this
202	202	section to a court with proper jurisdiction over suits affecting
203	203	the parent-child relationship shall send to the court to which the
204	204	transfer is made the complete files in all matters affecting the
205	205	guardianship of the person of the minor and certified copies of all
206	206	entries in the judge's guardianship docket [minutes]. The
207	207	transferring court shall keep a copy of the transferred files. If
208	208	the transferring court retains jurisdiction of the guardianship of
209	209	the estate of the minor or of another minor who was the subject of
210	210	the suit, the court shall send a copy of the complete files to the
211	211	court to which the transfer is made and shall keep the original
212	212	files.
213	213	SECTION 13. Section 623(a), Texas Probate Code, is amended
214	214	to read as follows:
215	215	(a) The county clerk shall keep a record book to be styled
216	216	"Judge's Guardianship Docket" and shall enter in the record book:
217	217	(1) the name of each person on whose person or estate a
218	218	proceeding is had or is sought to be had;
219	219	(2) the name of the guardian of the estate or person or
220	220	of the applicant for letters;
221	221	(3) the date the original application for a
222	222	guardianship proceeding was filed;
223	223	(4) a notation [minute], including the date, of each
224	224	order, judgment, decree, and proceeding in each estate; and
225	225	(5) a number of each guardianship on the docket in the
226	226	order in which a proceeding is commenced.
227	227	SECTION 14. Sections 631(b) and (c), Texas Probate Code,
228	228	are amended to read as follows:
229	229	(b) By transmitting to the proper court in the proper county
230	230	for venue purposes the original file in the case, with certified
231	231	copies of all entries in the judge's guardianship docket [minutes]
232	232	made in the file, an administration of the guardianship in the
233	233	proper county for venue purposes shall be completed in the same
234	234	manner as if the proceeding had originally been instituted in that
235	235	county.
236	236	(c) The clerk of the court from which the proceeding is
237	237	transferred shall transmit to the court to which the proceeding is
238	238	transferred the original file in the proceeding and a certified
239	239	copy of the entries in the judge's guardianship docket [minutes]
240	240	that relate to the proceeding.
241	241	SECTION 15. Section 650, Texas Probate Code, is amended to
242	242	read as follows:
243	243	Sec. 650. DECREES [AND SIGNING OF MINUTES]. A decision,
244	244	order, decree, or judgment of the court in a guardianship matter
245	245	must be rendered in open court, except in a case in which it is
246	246	otherwise expressly provided. [The judge shall approve and sign
247	247	the guardianship minutes on the first day of each month. If the
248	248	first day of the month falls on a Saturday, Sunday, or legal
249	249	holiday, the judge's approval shall be entered on the preceding or
250	250	succeeding day.]
251	251	SECTION 16. Section 753, Texas Probate Code, is amended to
252	252	read as follows:
253	253	Sec. 753. MONEY BECOMING DUE PENDING FINAL DISCHARGE.
254	254	Money or any other thing of value falling due to the estate or ward
255	255	while the account for final settlement is pending, other than money
256	256	or any other thing of value held under Section 703(c) of this code,
257	257	until the order of final discharge of the guardian is entered in the
258	258	judge's guardianship docket [minutes of the court], may be paid,
259	259	delivered, or tendered to the emancipated ward, the guardian, or
260	260	the personal representative of the deceased ward's estate, who
261	261	shall issue a receipt for the money or other thing of value, and the
262	262	obligor or payor shall be discharged of the obligation for all
263	263	purposes.
264	264	SECTION 17. Section 849(c), Texas Probate Code, is amended
265	265	to read as follows:
266	266	(c) The guardian of the estate shall file with the county
267	267	clerk of the county in which the guardianship proceeding is pending
268	268	the guardian's written application for authority to enter into a
269	269	pooling or unitization agreement supplementing, amending, or
270	270	otherwise relating to, any existing lease covering property owned
271	271	by the estate, or to commit royalties or other interest in minerals,
272	272	whether subject to lease or not, to a pooling or unitization
273	273	agreement. The application must also describe the property
274	274	sufficiently as required in the original application to lease,
275	275	describe briefly the lease to which the interest of the estate is
276	276	subject, and set out the reasons the proposed agreement concerning
277	277	the property should be made. A true copy of the proposed agreement
278	278	shall be attached to the application and by reference made a part of
279	279	the application, but the agreement may not be recorded in the
280	280	judge's guardianship docket [minutes]. The clerk shall
281	281	immediately, after the application is filed, call it to the
282	282	attention of the judge.
283	283	SECTION 18. Sections 885(a), (b), and (g), Texas Probate
284	284	Code, are amended to read as follows:
285	285	(a) When the estate of a minor or other incapacitated person
286	286	or any portion of the estate of the minor or other incapacitated
287	287	person appears in danger of injury, loss, or waste and in need of a
288	288	guardianship or other representative and there is no guardian of
289	289	the estate who is qualified in this state and a guardian is not
290	290	needed, the county judge of the county in which the minor or other
291	291	incapacitated person resides or in which the endangered estate is
292	292	located shall enter an order, with or without application,
293	293	appointing a suitable person as receiver to take charge of the
294	294	estate. The court order shall require a receiver appointed under
295	295	this section to give bond as in ordinary receiverships in an amount
296	296	the judge deems necessary to protect the estate. The court order
297	297	shall specify the duties and powers of the receiver as the judge
298	298	deems necessary for the protection, conservation, and preservation
299	299	of the estate. The clerk shall enter an order made under this
300	300	section in the judge's guardianship docket [on the minutes of the
301	301	court]. The person who is appointed as receiver shall make and
302	302	submit a bond for the judge's approval and shall file the bond, when
303	303	approved, with the clerk. The person who is appointed receiver
304	304	shall proceed to take charge of the endangered estate pursuant to
305	305	the powers and duties vested in the person by the order of
306	306	appointment and subsequent orders made by the judge.
307	307	(b) During the pendency of the receivership, when the needs
308	308	of the minor or other incapacitated person require the use of the
309	309	income or corpus of the estate for the education, clothing, or
310	310	subsistence of the minor or other incapacitated person, the judge,
311	311	with or without application, shall enter an order in the judge's
312	312	guardianship docket [on the minutes of the court] that appropriates
313	313	an amount of income or corpus that is sufficient for that purpose.
314	314	The receiver shall use the amount appropriated by the court to pay a
315	315	claim for the education, clothing, or subsistence of the minor or
316	316	other incapacitated person that is presented to the judge for
317	317	approval and ordered by the judge to be paid.
318	318	(g) An order or a bond, report, account, or notice in a
319	319	receivership proceeding must be recorded in the judge's
320	320	guardianship docket [minutes of the court].
321	321	SECTION 19. The following laws are repealed:
322	322	(1) Section 26.004(c), Government Code; and
323	323	(2) Sections 3(u) and 601(17), Texas Probate Code.
324	324	SECTION 20. This Act takes effect immediately if it
325	325	receives a vote of two-thirds of all the members elected to each
326	326	house, as provided by Section 39, Article III, Texas Constitution.
327	327	If this Act does not receive the vote necessary for immediate
328	328	effect, this Act takes effect September 1, 2009.