Texas 2011 - 82nd Regular

Texas House Bill HB2492 Compare Versions

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1	1	By: Naishtat (Senate Sponsor - Uresti) H.B. No. 2492
2	2	(In the Senate - Received from the House May 12, 2011;
3	3	May 12, 2011, read first time and referred to Committee on
4	4	Jurisprudence; May 21, 2011, reported favorably by the following
5	5	vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the family allowance, treatment of exempt property, and
11	11	an allowance in lieu of exempt property in the administration of a
12	12	decedent's estate.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	ARTICLE 1. CHANGES TO TEXAS PROBATE CODE
15	15	SECTION 1.01. Sections 139, 140, and 143, Texas Probate
16	16	Code, are amended to read as follows:
17	17	Sec. 139. APPLICATION FOR ORDER OF NO ADMINISTRATION. If
18	18	the value of the entire assets of an estate, not including homestead
19	19	and exempt property, does not exceed the amount to which the
20	20	surviving spouse, [and] minor children, and adult incapacitated
21	21	children of the decedent are entitled as a family allowance, there
22	22	may be filed by or on behalf of the surviving spouse, [or] minor
23	23	children, or adult incapacitated children an application in any
24	24	court of proper venue for administration, or, if an application for
25	25	the appointment of a personal representative has been filed but not
26	26	yet granted, then in the court where such application has been
27	27	filed, requesting the court to make a family allowance and to enter
28	28	an order that no administration shall be necessary. The
29	29	application shall state the names of the heirs or devisees, a list
30	30	of creditors of the estate together with the amounts of the claims
31	31	so far as the same are known, and a description of all real and
32	32	personal property belonging to the estate, together with the
33	33	estimated value thereof according to the best knowledge and
34	34	information of the applicant, and the liens and encumbrances
35	35	thereon, with a prayer that the court make a family allowance and
36	36	that, if the entire assets of the estate, not including homestead
37	37	and exempt property, are thereby exhausted, the same be set aside to
38	38	the surviving spouse, [and] minor children, and adult incapacitated
39	39	children, as in the case of other family allowances provided for by
40	40	this Code.
41	41	Sec. 140. HEARING AND ORDER UPON THE APPLICATION. Upon the
42	42	filing of an application for no administration such as that
43	43	provided for in the preceding Section, the court may hear the same
44	44	forthwith without notice, or at such time and upon such notice as
45	45	the court requires. Upon the hearing of the application, if the
46	46	court finds that the facts contained therein are true and that the
47	47	expenses of last illness, funeral charges, and expenses of the
48	48	proceeding have been paid or secured, the court shall make a family
49	49	allowance and, if the entire assets of the estate, not including
50	50	homestead and exempt property, are thereby exhausted, shall order
51	51	that no administration be had of the estate and shall assign to the
52	52	surviving spouse, [and] minor children, and adult incapacitated
53	53	children the whole of the estate, in the same manner and with the
54	54	same effect as provided in this Code for the making of family
55	55	allowances to the surviving spouse, [and] minor children, and adult
56	56	incapacitated children.
57	57	Sec. 143. SUMMARY PROCEEDINGS FOR SMALL ESTATES AFTER
58	58	PERSONAL REPRESENTATIVE APPOINTED. Whenever, after the inventory,
59	59	appraisement, and list of claims has been filed by a personal
60	60	representative, it is established that the estate of a decedent,
61	61	exclusive of the homestead and exempt property and family allowance
62	62	to the surviving spouse, [and] minor children, and adult
63	63	incapacitated children, does not exceed the amount sufficient to
64	64	pay the claims of Classes One to Four, inclusive, as claims are
65	65	hereinafter classified, the personal representative shall, upon
66	66	order of the court, pay the claims in the order provided and to the
67	67	extent permitted by the assets of the estate subject to the payment
68	68	of such claims, and thereafter present the personal
69	69	representative's [his] account with an application for the
70	70	settlement and allowance thereof. Thereupon the court, with or
71	71	without notice, may adjust, correct, settle, allow or disallow such
72	72	account, and, if the account is settled and allowed, may decree
73	73	final distribution, discharge the personal representative, and
74	74	close the administration.
75	75	SECTION 1.02. Sections 271(a) and (b), Texas Probate Code,
76	76	are amended to read as follows:
77	77	(a) Unless an affidavit is filed under Subsection (b) of
78	78	this section, immediately after the inventory, appraisement, and
79	79	list of claims have been approved, the court shall, by order, set
80	80	apart:
81	81	(1) the homestead for the use and benefit of the
82	82	surviving spouse and minor children; and
83	83	(2) all other property of the estate that is exempt
84	84	from execution or forced sale by the constitution and laws of this
85	85	state for the use and benefit of the surviving spouse, [and] minor
86	86	children, [and] unmarried adult children remaining with the family
87	87	of the deceased, and each other adult child who is incapacitated.
88	88	(b) Before the approval of the inventory, appraisement, and
89	89	list of claims:
90	90	(1) a surviving spouse or any person who is authorized
91	91	to act on behalf of minor children of the deceased may apply to the
92	92	court to have exempt property, including the homestead, set aside
93	93	by filing an application and a verified affidavit listing all of the
94	94	property that the applicant claims is exempt; and
95	95	(2) any unmarried adult child [children] remaining
96	96	with the family of the deceased, any other adult child who is
97	97	incapacitated, or a person who is authorized to act on behalf of the
98	98	adult incapacitated child may apply to the court to have all exempt
99	99	property other than the homestead set aside by filing an
100	100	application and a verified affidavit listing all of the other
101	101	property that the applicant claims is exempt.
102	102	SECTION 1.03. Sections 272, 273, 274, 275, 276, 286, 287,
103	103	288, 290, 291, and 292, Texas Probate Code, are amended to read as
104	104	follows:
105	105	Sec. 272. TO WHOM DELIVERED. The exempt property set apart
106	106	to the surviving spouse and children shall be delivered by the
107	107	executor or administrator without delay as follows: (a) If there
108	108	be a surviving spouse and no children, or if the children, including
109	109	any adult incapacitated children, be the children of the surviving
110	110	spouse, the whole of such property shall be delivered to the
111	111	surviving spouse. (b) If there be children and no surviving
112	112	spouse, such property, except the homestead, shall be delivered to
113	113	the guardian of each of those [such] children who is a minor, to
114	114	each of those children who is of lawful age and not incapacitated,
115	115	and to the guardian of each of those children who is an
116	116	incapacitated adult or to another appropriate person, as determined
117	117	by the court, on behalf of the adult incapacitated child if there is
118	118	no guardian [if they be of lawful age, or to their guardian if they
119	119	be minors]. (c) If there be children of the deceased of whom the
120	120	surviving spouse is not the parent, the share of such children in
121	121	such exempted property, except the homestead, shall be delivered to
122	122	the guardian of each of those [such] children who is a minor, to
123	123	each of those children who is of lawful age and not incapacitated,
124	124	and to the guardian of each of those children who is an
125	125	incapacitated adult or to another appropriate person, as determined
126	126	by the court, on behalf of the adult incapacitated child if there is
127	127	no guardian [if they be of lawful age, or to their guardian, if they
128	128	be minors]. (d) In all cases, the homestead shall be delivered to
129	129	the surviving spouse, if there be one, and if there be no surviving
130	130	spouse, to the guardian of the minor children.
131	131	Sec. 273. ALLOWANCE IN LIEU OF EXEMPT PROPERTY. In case
132	132	there should not be among the effects of the deceased all or any of
133	133	the specific articles exempted from execution or forced sale by the
134	134	Constitution and laws of this state, the court shall make a
135	135	reasonable allowance in lieu thereof, to be paid to such surviving
136	136	spouse and children, or such of them as there are, as hereinafter
137	137	provided. The allowance in lieu of a homestead shall in no case
138	138	exceed $15,000 and the allowance for other exempted property shall
139	139	in no case exceed $5,000, exclusive of the allowance for the support
140	140	of the surviving spouse, [and] minor children, and adult
141	141	incapacitated children which is hereinafter provided for.
142	142	Sec. 274. HOW ALLOWANCE PAID. The allowance made in lieu of
143	143	any of the exempted property shall be paid either in money out of
144	144	the funds of the estate that come to the hands of the executor or
145	145	administrator, or in any property of the deceased that such
146	146	surviving spouse, [or] children who are [, if they be] of lawful
147	147	age, guardian of children who are [or their guardian if they be]
148	148	minors, or guardian of each adult incapacitated child or other
149	149	appropriate person, as determined by the court, on behalf of the
150	150	adult incapacitated child if there is no guardian, shall choose to
151	151	take at the appraisement, or a part thereof, or both, as they shall
152	152	select; provided, however, that property specifically bequeathed
153	153	or devised to another may be so taken, or may be sold to raise funds
154	154	for the allowance as hereinafter provided, only if the other
155	155	available property shall be insufficient to provide the allowance.
156	156	Sec. 275. TO WHOM ALLOWANCE PAID. The allowance in lieu of
157	157	exempt property shall be paid by the executor or administrator, as
158	158	follows: (a) If there be a surviving spouse and no children, or if
159	159	all the children, including any adult incapacitated children, be
160	160	the children of the surviving spouse, the whole shall be paid to
161	161	such surviving spouse.
162	162	(b) If there be children and no surviving spouse, the whole
163	163	shall be [paid to and] equally divided among them and each of their
164	164	shares shall be paid as follows:
165	165	(1) if the child is [they be] of lawful age and not
166	166	incapacitated, to the child;
167	167	(2) [, but] if the child is a minor, [any of such
168	168	children are minors, their shares shall be paid] to the child's
169	169	[their] guardian; or
170	170	(3) if the child is an incapacitated adult, to the
171	171	adult incapacitated child's guardian or another appropriate
172	172	person, as determined by the court, on behalf of the adult
173	173	incapacitated child if there is no guardian [guardians].
174	174	(c) If there be a surviving spouse, and children of the
175	175	deceased, some of whom are not children of the surviving spouse, the
176	176	surviving spouse shall receive one-half of the whole, plus the
177	177	shares of the children of whom the survivor is the parent, and the
178	178	remaining shares shall be paid with respect to each of the children
179	179	of whom the survivor is not the parent as follows:
180	180	(1) if the child is an adult who is not incapacitated,
181	181	to the child;
182	182	(2) if the child is a minor [or, if they are minors],
183	183	to the child's [their] guardian; or
184	184	(3) if the child is an incapacitated adult, to the
185	185	adult incapacitated child's guardian or another appropriate
186	186	person, as determined by the court, on behalf of the adult
187	187	incapacitated child if there is no guardian.
188	188	Sec. 276. SALE TO RAISE ALLOWANCE. If there be no property
189	189	of the deceased that such surviving spouse or children are willing
190	190	to take for such allowance, or not a sufficiency, and there be no
191	191	funds, or not sufficient funds, of the estate in the hands of such
192	192	executor or administrator to pay such allowance, or any part
193	193	thereof, the court, on the application in writing of such surviving
194	194	spouse and children, or of a person authorized to represent any of
195	195	those children, shall order a sale of so much of the estate for cash
196	196	as will be sufficient to raise the amount of such allowance, or a
197	197	part thereof, as the case requires.
198	198	Sec. 286. FAMILY ALLOWANCE TO SURVIVING SPOUSES, [AND]
199	199	MINORS, AND ADULT INCAPACITATED CHILDREN. (a) Unless an affidavit
200	200	is filed under Subsection (b) of this section, immediately after
201	201	the inventory, appraisement, and list of claims have been approved,
202	202	the court shall fix a family allowance for the support of the
203	203	surviving spouse, [and] minor children, and adult incapacitated
204	204	children of the deceased.
205	205	(b) Before the approval of the inventory, appraisement, and
206	206	list of claims, a surviving spouse or any person who is authorized
207	207	to act on behalf of minor children or adult incapacitated children
208	208	of the deceased may apply to the court to have the court fix the
209	209	family allowance by filing an application and a verified affidavit
210	210	describing the amount necessary for the maintenance of the
211	211	surviving spouse, [and] minor children, and adult incapacitated
212	212	children for one year after the date of the death of the decedent
213	213	and describing the spouse's separate property and any property that
214	214	minor children or adult incapacitated children have in their own
215	215	right. The applicant bears the burden of proof by a preponderance
216	216	of the evidence at any hearing on the application. The court shall
217	217	fix a family allowance for the support of the surviving spouse,
218	218	[and] minor children, and adult incapacitated children of the
219	219	deceased.
220	220	Sec. 287. AMOUNT OF FAMILY ALLOWANCE. Such allowance shall
221	221	be of an amount sufficient for the maintenance of such surviving
222	222	spouse, [and] minor children, and adult incapacitated children for
223	223	one year from the time of the death of the testator or intestate.
224	224	The allowance shall be fixed with regard to the facts or
225	225	circumstances then existing and those anticipated to exist during
226	226	the first year after such death. The allowance may be paid either
227	227	in a lump sum or in installments, as the court shall order.
228	228	Sec. 288. WHEN FAMILY ALLOWANCE NOT MADE. No such allowance
229	229	shall be made for the surviving spouse when the survivor has
230	230	separate property adequate to the survivor's maintenance; nor shall
231	231	such allowance be made for the minor children or adult
232	232	incapacitated children when they have property in their own right
233	233	adequate to their maintenance.
234	234	Sec. 290. FAMILY ALLOWANCE PREFERRED. The family allowance
235	235	made for the support of the surviving spouse, [and] minor children,
236	236	and adult incapacitated children of the deceased shall be paid in
237	237	preference to all other debts or charges against the estate, except
238	238	Class 1 claims.
239	239	Sec. 291. TO WHOM FAMILY ALLOWANCE PAID. The executor or
240	240	administrator shall apportion and pay the family allowance:
241	241	(a) To the surviving spouse, if there be one, for the use of
242	242	the survivor and the minor children and adult incapacitated
243	243	children, if such children be the survivor's.
244	244	(b) If the surviving spouse is not the parent of such minor
245	245	children and adult incapacitated children, or of some of them, the
246	246	portion of such allowance necessary for the support of such minor
247	247	child or children of which the survivor is not the parent shall be
248	248	paid to the guardian or guardians of such child or children who are
249	249	minors, and to the guardian of each adult incapacitated child or
250	250	another appropriate person, as determined by the court, on behalf
251	251	of the adult incapacitated child if there is no guardian.
252	252	(c) If there be no surviving spouse, the allowance to the
253	253	minor child or children shall be paid to the guardian or guardians
254	254	of such minor child or children, and the allowance to each adult
255	255	incapacitated child shall be paid to the guardian of the adult
256	256	incapacitated child or another appropriate person, as determined by
257	257	the court, on behalf of the adult incapacitated child if there is no
258	258	guardian.
259	259	(d) If there be a surviving spouse and no minor child or
260	260	adult incapacitated child [children], the entire allowance shall be
261	261	paid to the surviving spouse.
262	262	Sec. 292. MAY TAKE PROPERTY FOR FAMILY ALLOWANCE. The
263	263	surviving spouse, [or] the guardian of the minor children, or the
264	264	guardian of an adult incapacitated child or another appropriate
265	265	person, as determined by the court, on behalf of the adult
266	266	incapacitated child if there is no guardian, as the case may be,
267	267	shall have the right to take in payment of such allowance, or any
268	268	part thereof, any of the personal property of the estate at its
269	269	appraised value as shown by the appraisement; provided, however,
270	270	that property specifically devised or bequeathed to another may be
271	271	so taken, or may be sold to raise funds for the allowance as
272	272	hereinafter provided, only if the other available property shall be
273	273	insufficient to provide the allowance.
274	274	SECTION 1.04. The changes in law made by this article apply
275	275	only to the estate of a decedent who dies on or after the effective
276	276	date of this Act. The estate of a decedent who dies before the
277	277	effective date of this Act is governed by the law in effect on the
278	278	date of the decedent's death, and the former law is continued in
279	279	effect for that purpose.
280	280	ARTICLE 2. CHANGES TO ESTATES CODE
281	281	SECTION 2.01. Sections 353.051(a) and (b), Estates Code, as
282	282	effective January 1, 2014, are amended to read as follows:
283	283	(a) Unless an application and verified affidavit are filed
284	284	as provided by Subsection (b), immediately after the inventory,
285	285	appraisement, and list of claims of an estate are approved, the
286	286	court by order shall set aside:
287	287	(1) the homestead for the use and benefit of the
288	288	decedent's surviving spouse and minor children; and
289	289	(2) all other estate property that is exempt from
290	290	execution or forced sale by the constitution and laws of this state
291	291	for the use and benefit of the decedent's:
292	292	(A) surviving spouse and minor children; [and]
293	293	(B) unmarried adult children remaining with the
294	294	decedent's family; and
295	295	(C) each other adult child who is incapacitated.
296	296	(b) Before the inventory, appraisement, and list of claims
297	297	of an estate are approved:
298	298	(1) the decedent's surviving spouse or any other
299	299	person authorized to act on behalf of the decedent's minor children
300	300	may apply to the court to have exempt property, including the
301	301	homestead, set aside by filing an application and a verified
302	302	affidavit listing all property that the applicant claims is exempt;
303	303	and
304	304	(2) any of the decedent's unmarried adult children
305	305	remaining with the decedent's family, any other adult child of the
306	306	decedent who is incapacitated, or a person who is authorized to act
307	307	on behalf of the adult incapacitated child may apply to the court to
308	308	have all exempt property, other than the homestead, set aside by
309	309	filing an application and a verified affidavit listing all
310	310	property, other than the homestead, that the applicant claims is
311	311	exempt.
312	312	SECTION 2.02. Sections 353.052(b), (c), and (d), Estates
313	313	Code, as effective January 1, 2014, are amended to read as follows:
314	314	(b) If there is a surviving spouse and there are no children
315	315	of the decedent, or if all the children, including any adult
316	316	incapacitated children, of the decedent are also the children of
317	317	the surviving spouse, the executor or administrator shall deliver
318	318	all exempt property to the surviving spouse.
319	319	(c) If there is a surviving spouse and there are children of
320	320	the decedent who are not also children of the surviving spouse, the
321	321	executor or administrator shall deliver the share of those children
322	322	in exempt property, other than the homestead, to:
323	323	(1) the children, if the children are of legal age;
324	324	[or]
325	325	(2) the children's guardian, if the children are
326	326	minors; or
327	327	(3) the guardian of each of the children who is an
328	328	incapacitated adult, or to another appropriate person, as
329	329	determined by the court, on behalf of the adult incapacitated child
330	330	if there is no guardian.
331	331	(d) If there is no surviving spouse and there are children
332	332	of the decedent, the executor or administrator shall deliver exempt
333	333	property, other than the homestead, to:
334	334	(1) the children, if the children are of legal age;
335	335	[or]
336	336	(2) the children's guardian, if the children are
337	337	minors; or
338	338	(3) the guardian of each of the children who is an
339	339	incapacitated adult, or to another appropriate person, as
340	340	determined by the court, on behalf of the adult incapacitated child
341	341	if there is no guardian.
342	342	SECTION 2.03. Section 353.053(b), Estates Code, as
343	343	effective January 1, 2014, is amended to read as follows:
344	344	(b) The allowance in lieu of a homestead may not exceed
345	345	$15,000, and the allowance in lieu of other exempt property may not
346	346	exceed $5,000, excluding the family allowance for the support of
347	347	the surviving spouse, [and] minor children, and adult incapacitated
348	348	children provided by Subchapter C.
349	349	SECTION 2.04. Sections 353.054(b), (c), and (d), Estates
350	350	Code, as effective January 1, 2014, are amended to read as follows:
351	351	(b) If there is a surviving spouse and there are no children
352	352	of the decedent, or if all the children, including any adult
353	353	incapacitated children, of the decedent are also the children of
354	354	the surviving spouse, the executor or administrator shall pay the
355	355	entire allowance to the surviving spouse.
356	356	(c) If there is a surviving spouse and there are children of
357	357	the decedent who are not also children of the surviving spouse, the
358	358	executor or administrator shall pay the surviving spouse one-half
359	359	of the entire allowance plus the shares of the decedent's children
360	360	of whom the surviving spouse is the parent. The remaining shares
361	361	must be paid to:
362	362	(1) the decedent's adult children of whom the
363	363	surviving spouse is not a parent and who are not incapacitated; [or]
364	364	(2) the guardian of the children of whom the surviving
365	365	spouse is not a parent and who [described by Subdivision (1), if
366	366	those children] are minors; or
367	367	(3) the guardian or another appropriate person, as
368	368	determined by the court, if there is no guardian, of each child who
369	369	is an incapacitated adult.
370	370	(d) If there is no surviving spouse and there are children
371	371	of the decedent, the executor or administrator shall divide the
372	372	entire allowance equally among the children and pay the children's
373	373	shares to:
374	374	(1) each of those [the] children who are adults and who
375	375	are not incapacitated;
376	376	(2) the guardian of each [, if the children are of
377	377	legal age, or, if any] of those [the] children who are minors; or
378	378	(3) the guardian or another appropriate person, as
379	379	determined by the court, if there is no guardian, of each of those
380	380	children who is an incapacitated adult[, pay the minor children's
381	381	shares to the guardian of the minor children].
382	382	SECTION 2.05. Section 353.055(a), Estates Code, as
383	383	effective January 1, 2014, is amended to read as follows:
384	384	(a) An allowance in lieu of any exempt property shall be
385	385	paid in the manner selected by the decedent's surviving spouse or
386	386	children of legal age, or by the guardian of the decedent's minor
387	387	children, or by the guardian of each adult incapacitated child or
388	388	other appropriate person, as determined by the court, if there is no
389	389	guardian, as follows:
390	390	(1) in money out of estate funds that come into the
391	391	executor's or administrator's possession;
392	392	(2) in any of the decedent's property or a part of the
393	393	property chosen by those individuals at the appraisement; or
394	394	(3) part in money described by Subdivision (1) and
395	395	part in property described by Subdivision (2).
396	396	SECTION 2.06. Section 353.056(a), Estates Code, as
397	397	effective January 1, 2014, is amended to read as follows:
398	398	(a) On the written application of the decedent's surviving
399	399	spouse and children, or of a person authorized to represent any of
400	400	those children, the court shall order the sale of estate property
401	401	for cash in an amount that will be sufficient to raise the amount of
402	402	the allowance provided under Section 353.053 or a portion of that
403	403	amount, as necessary, if:
404	404	(1) the decedent had no property that the surviving
405	405	spouse or children are willing to take for the allowance or the
406	406	decedent had insufficient property; and
407	407	(2) there are not sufficient estate funds in the
408	408	executor's or administrator's possession to pay the amount of the
409	409	allowance or a portion of that amount, as applicable.
410	410	SECTION 2.07. Section 353.101, Estates Code, as effective
411	411	January 1, 2014, is amended to read as follows:
412	412	Sec. 353.101. FAMILY ALLOWANCE. (a) Unless an application
413	413	and verified affidavit are filed as provided by Subsection (b),
414	414	immediately after the inventory, appraisement, and list of claims
415	415	of an estate are approved, the court shall fix a family allowance
416	416	for the support of the decedent's surviving spouse, [and] minor
417	417	children, and adult incapacitated children.
418	418	(b) Before the inventory, appraisement, and list of claims
419	419	of an estate are approved, the decedent's surviving spouse or any
420	420	other person authorized to act on behalf of the decedent's minor
421	421	children or adult incapacitated children may apply to the court to
422	422	have the court fix the family allowance by filing an application and
423	423	a verified affidavit describing:
424	424	(1) the amount necessary for the maintenance of the
425	425	surviving spouse, [and] the decedent's minor children, and the
426	426	decedent's adult incapacitated children for one year after the date
427	427	of the decedent's death; and
428	428	(2) the surviving spouse's separate property and any
429	429	property that the decedent's minor children or adult incapacitated
430	430	children have in their own right.
431	431	(c) At a hearing on an application filed under Subsection
432	432	(b), the applicant has the burden of proof by a preponderance of the
433	433	evidence. The court shall fix a family allowance for the support
434	434	of the decedent's surviving spouse, [and] minor children, and adult
435	435	incapacitated children.
436	436	(d) A family allowance may not be made for:
437	437	(1) the decedent's surviving spouse, if the surviving
438	438	spouse has separate property adequate for the surviving spouse's
439	439	maintenance; [or]
440	440	(2) the decedent's minor children, if the minor
441	441	children have property in their own right adequate for the
442	442	children's maintenance; or
443	443	(3) any of the decedent's adult incapacitated
444	444	children, if the adult incapacitated child has property in the
445	445	person's own right adequate for the person's maintenance.
446	446	SECTION 2.08. Section 353.102(a), Estates Code, as
447	447	effective January 1, 2014, is amended to read as follows:
448	448	(a) The amount of the family allowance must be sufficient
449	449	for the maintenance of the decedent's surviving spouse, [and] minor
450	450	children, and adult incapacitated children for one year from the
451	451	date of the decedent's death.
452	452	SECTION 2.09. Section 353.104, Estates Code, as effective
453	453	January 1, 2014, is amended to read as follows:
454	454	Sec. 353.104. PREFERENCE OF FAMILY ALLOWANCE. The family
455	455	allowance made for the support of the decedent's surviving spouse,
456	456	[and] minor children, and adult incapacitated children shall be
457	457	paid in preference to all other debts of or charges against the
458	458	estate, other than Class 1 claims.
459	459	SECTION 2.10. Sections 353.105(b), (c), (d), and (e),
460	460	Estates Code, as effective January 1, 2014, are amended to read as
461	461	follows:
462	462	(b) If there is a surviving spouse and there are no minor
463	463	children or adult incapacitated children of the decedent, the
464	464	executor or administrator shall pay the entire family allowance to
465	465	the surviving spouse.
466	466	(c) If there is a surviving spouse and all of the minor
467	467	children and adult incapacitated children of the decedent are also
468	468	the children of the surviving spouse, the executor or administrator
469	469	shall pay the entire family allowance to the surviving spouse for
470	470	use by the surviving spouse, [and] the decedent's minor children,
471	471	and adult incapacitated children.
472	472	(d) If there is a surviving spouse and some or all of the
473	473	minor children or adult incapacitated children of the decedent are
474	474	not also children of the surviving spouse, the executor or
475	475	administrator shall pay:
476	476	(1) the portion of the entire family allowance
477	477	necessary for the support of those minor children to the guardian of
478	478	those children; and
479	479	(2) the portion of the entire family allowance
480	480	necessary for the support of each of those adult incapacitated
481	481	children to the guardian of the adult incapacitated child or
482	482	another appropriate person, as determined by the court, on behalf
483	483	of the adult incapacitated child if there is no guardian.
484	484	(e) If there is no surviving spouse and there are minor
485	485	children or adult incapacitated children of the decedent, the
486	486	executor or administrator shall pay the family allowance:
487	487	(1) for the minor children, to the guardian of those
488	488	children; and
489	489	(2) for each adult incapacitated child, to the
490	490	guardian of the adult incapacitated child or another appropriate
491	491	person, as determined by the court, on behalf of the adult
492	492	incapacitated child if there is no guardian.
493	493	SECTION 2.11. The heading to Section 353.106, Estates Code,
494	494	as effective January 1, 2014, is amended to read as follows:
495	495	Sec. 353.106. SURVIVING SPOUSE, [OR] MINOR CHILDREN, OR
496	496	ADULT INCAPACITATED CHILDREN MAY TAKE PERSONAL PROPERTY FOR FAMILY
497	497	ALLOWANCE.
498	498	SECTION 2.12. Section 353.106(a), Estates Code, as
499	499	effective January 1, 2014, is amended to read as follows:
500	500	(a) A decedent's surviving spouse, [or] the guardian of the
501	501	decedent's minor children, or the guardian of an adult
502	502	incapacitated child of the decedent or another appropriate person,
503	503	as determined by the court, on behalf of the adult incapacitated
504	504	child if there is no guardian, as applicable, is entitled to take,
505	505	at the property's appraised value as shown by the appraisement, any
506	506	of the estate's personal property in full or partial payment of the
507	507	family allowance.
508	508	SECTION 2.13. Section 353.107(a), Estates Code, as
509	509	effective January 1, 2014, is amended to read as follows:
510	510	(a) The court shall, as soon as the inventory, appraisement,
511	511	and list of claims are returned and approved, order the sale of
512	512	estate property for cash in an amount that will be sufficient to
513	513	raise the amount of the family allowance, or a portion of that
514	514	amount, as necessary, if:
515	515	(1) the decedent had no personal property that the
516	516	surviving spouse, [or] the guardian of the decedent's minor
517	517	children, or the guardian of the decedent's adult incapacitated
518	518	child or other appropriate person acting on behalf of the adult
519	519	incapacitated child is willing to take for the family allowance, or
520	520	the decedent had insufficient personal property; and
521	521	(2) there are not sufficient estate funds in the
522	522	executor's or administrator's possession to pay the amount of the
523	523	family allowance or a portion of that amount, as applicable.
524	524	SECTION 2.14. Section 354.001(a), Estates Code, as
525	525	effective January 1, 2014, is amended to read as follows:
526	526	(a) If, after a personal representative of an estate has
527	527	filed the inventory, appraisement, and list of claims as required
528	528	by Chapter 309, it is established that the decedent's estate,
529	529	excluding any homestead, exempt property, and family allowance to
530	530	the decedent's surviving spouse, [and] minor children, and adult
531	531	incapacitated children, does not exceed the amount sufficient to
532	532	pay the claims against the estate classified as Classes 1 through 4
533	533	under Section 355.102, the representative shall:
534	534	(1) on order of the court, pay those claims in the
535	535	order provided and to the extent permitted by the assets of the
536	536	estate subject to the payment of those claims; and
537	537	(2) after paying the claims in accordance with
538	538	Subdivision (1), present to the court the representative's account
539	539	with an application for the settlement and allowance of the
540	540	account.
541	541	SECTION 2.15. Sections 451.001(a) and (d), Estates Code, as
542	542	effective January 1, 2014, are amended to read as follows:
543	543	(a) If the value of the entire assets of an estate,
544	544	excluding homestead and exempt property, does not exceed the amount
545	545	to which the surviving spouse, [and] minor children, and adult
546	546	incapacitated children of the decedent are entitled as a family
547	547	allowance, an application may be filed by or on behalf of the
548	548	surviving spouse, [or] minor children, or adult incapacitated
549	549	children requesting a court to make a family allowance and to enter
550	550	an order that no administration of the decedent's estate is
551	551	necessary.
552	552	(d) The application must also include a prayer that the
553	553	court make a family allowance and that, if the family allowance
554	554	exhausts the entire assets of the estate, excluding homestead and
555	555	exempt property, the entire assets of the estate be set aside to the
556	556	surviving spouse, [and] minor children, and adult incapacitated
557	557	children, as with other family allowances provided for by
558	558	Subchapter C, Chapter 353.
559	559	SECTION 2.16. Section 451.002(b), Estates Code, as
560	560	effective January 1, 2014, is amended to read as follows:
561	561	(b) On the hearing of the application, if the court finds
562	562	that the facts contained in the application are true and that the
563	563	expenses of last illness, funeral charges, and expenses of the
564	564	proceeding have been paid or secured, the court shall:
565	565	(1) make a family allowance; and
566	566	(2) if the entire assets of the estate, excluding
567	567	homestead and exempt property, are exhausted by the family
568	568	allowance made under Subdivision (1):
569	569	(A) assign to the surviving spouse, [and] minor
570	570	children, and adult incapacitated children the entire estate in the
571	571	same manner and with the same effect as provided in Subchapter C,
572	572	Chapter 353, for the making of a family allowance to the surviving
573	573	spouse, [and] minor children, and adult incapacitated children; and
574	574	(B) order that there shall be no administration
575	575	of the estate.
576	576	SECTION 2.17. The changes in law made to Sections 139, 140,
577	577	143, 271(a) and (b), 272, 273, 274, 275, 276, 286, 287, 288, 290,
578	578	291, and 292, Texas Probate Code, by Article 1 of this Act are
579	579	repealed.
580	580	SECTION 2.18. This article takes effect January 1, 2014.
581	581	ARTICLE 3. EFFECTIVE DATE
582	582	SECTION 3.01. Except as otherwise provided by this Act,
583	583	this Act takes effect September 1, 2011.
584	584	* * * * *