81R784 KLA-D
By: Wentworth S.B. No. 319
A BILL TO BE ENTITLED
AN ACT
relating to providing notice to devisees under a decedent's will.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Part 4, Chapter V, Texas Probate Code, is amended
by adding Section 128C to read as follows:
Sec. 128C. NOTICE TO CERTAIN ENTITIES AFTER PROBATE. (a) If
the address of the entity can be ascertained with reasonable
diligence, an applicant under Section 81 of this code shall give the
state, a governmental agency of the state, or a charitable
organization notice that the entity is named as a devisee in a
written will or a written will not produced that has been admitted
to probate.
(b) The notice required by Subsection (a) of this section
must be given not later than the 30th day after the date of the
probate of the will.
(c) The notice must be in writing and state the county in
which the will was admitted to probate. A copy of the application
and of the order admitting the will to probate and, if the
application is for probate of a written will, a copy of the will
must be attached to the notice.
(d) An entity entitled to notice under Subsection (a) of
this section must be notified by registered or certified mail,
return receipt requested.
(e) The applicant must file a copy of the notice with the
court in which the will was admitted to probate.
SECTION 2. Sections 37A(h) and (i), Texas Probate Code, are
amended to read as follows:
(h) Filing of Disclaimer. Unless the beneficiary is a
charitable organization or governmental agency of the state, a
written memorandum of disclaimer disclaiming a present interest
shall be filed not later than nine months after the death of the
decedent and a written memorandum of disclaimer disclaiming a
future interest may be filed not later than nine months after the
event determining that the taker of the property or interest is
finally ascertained and his interest is indefeasibly vested. If
the beneficiary is a charitable organization or a governmental
agency of the state, a written memorandum of disclaimer disclaiming
a present or future interest shall be filed not later than the first
anniversary of the date the beneficiary receives the notice
required by Section 128C [128A] of this code, or the expiration of
the six-month period following the date the personal representative
files the inventory, appraisement, and list of claims due or owing
to the estate, whichever occurs later. The written memorandum of
disclaimer shall be filed in the probate court in which the
decedent's will has been probated or in which proceedings have been
commenced for the administration of the decedent's estate or which
has before it an application for either of the same; provided,
however, if the administration of the decedent's estate is closed,
or after the expiration of one year following the date of the
issuance of letters testamentary in an independent administration,
or if there has been no will of the decedent probated or filed for
probate, or if no administration of the decedent's estate has been
commenced, or if no application for administration of the
decedent's estate has been filed, the written memorandum of
disclaimer shall be filed with the county clerk of the county of the
decedent's residence, or, if the decedent is not a resident of this
state but real property or an interest therein located in this state
is disclaimed, a written memorandum of disclaimer shall be filed
with the county clerk of the county in which such real property or
interest therein is located, and recorded by such county clerk in
the deed records of that county.
(i) Notice of Disclaimer. Unless the beneficiary is a
charitable organization or governmental agency of the state, copies
of any written memorandum of disclaimer shall be delivered in
person to, or shall be mailed by registered or certified mail to and
received by, the legal representative of the transferor of the
interest or the holder of legal title to the property to which the
disclaimer relates not later than nine months after the death of the
decedent or, if the interest is a future interest, not later than
nine months after the date the person who will receive the property
or interest is finally ascertained and the person's interest is
indefeasibly vested. If the beneficiary is a charitable
organization or government agency of the state, the notices
required by this section shall be filed not later than the first
anniversary of the date the beneficiary receives the notice
required by Section 128C [128A] of this code, or the expiration of
the six-month period following the date the personal representative
files the inventory, appraisement, and list of claims due or owing
to the estate, whichever occurs later.
SECTION 3. Section 149C(a), Texas Probate Code, is amended
to read as follows:
(a) The county court, as that term is defined by Section 3 of
this code, on its own motion or on motion of any interested person,
after the independent executor has been cited by personal service
to answer at a time and place fixed in the notice, may remove an
independent executor when:
(1) the independent executor fails to return within
ninety days after qualification, unless such time is extended by
order of the court, an inventory of the property of the estate and
list of claims that have come to the independent executor's
knowledge;
(2) sufficient grounds appear to support belief that
the independent executor has misapplied or embezzled, or that the
independent executor is about to misapply or embezzle, all or any
part of the property committed to the independent executor's care;
(3) the independent executor fails to make an
accounting which is required by law to be made;
(4) the independent executor fails to timely file the
notice [affidavit or certificate] required by Section 128C [128A]
of this code;
(5) the independent executor is proved to have been
guilty of gross misconduct or gross mismanagement in the
performance of the independent executor's duties; or
(6) the independent executor becomes an incapacitated
person, or is sentenced to the penitentiary, or from any other cause
becomes legally incapacitated from properly performing the
independent executor's fiduciary duties.
SECTION 4. Section 222(b), Texas Probate Code, is amended
to read as follows:
(b) With Notice. The court may remove a personal
representative on its own motion, or on the complaint of any
interested person, after the personal representative has been cited
by personal service to answer at a time and place fixed in the
notice, when:
(1) Sufficient grounds appear to support belief that
the personal representative has misapplied, embezzled, or removed
from the state, or that the personal representative is about to
misapply, embezzle, or remove from the state, all or any part of the
property committed to the personal representative's care;
(2) The personal representative fails to return any
account which is required by law to be made;
(3) The personal representative fails to obey any
proper order of the court having jurisdiction with respect to the
performance of the personal representative's duties;
(4) The personal representative is proved to have been
guilty of gross misconduct, or mismanagement in the performance of
the personal representative's duties;
(5) The personal representative becomes an
incapacitated person, or is sentenced to the penitentiary, or from
any other cause becomes incapable of properly performing the duties
of the personal representative's trust;
(6) As executor or administrator, the personal
representative fails to make a final settlement within three years
after the grant of letters, unless the time be extended by the court
upon a showing of sufficient cause supported by oath; or
(7) As executor or administrator, the personal
representative fails to timely file the notice [affidavit or
certificate] required by Section 128C [128A] of this code.
SECTION 5. Section 128A, Texas Probate Code, as amended by
Chapters 801 and 1170, Acts of the 80th Legislature, Regular
Session, 2007, is repealed.
SECTION 6. The changes in law made by this Act apply only to
the estate of a decedent whose will is admitted to probate on or
after the effective date of this Act. The estate of a decedent
whose will is admitted to probate before the effective date of this
Act is governed by the law in effect on the date the decedent's will
was admitted to probate, and the former law is continued in effect
for that purpose.
SECTION 7. 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.