By: Naishtat (Senate Sponsor - Uresti) H.B. No. 2492
(In the Senate - Received from the House May 12, 2011;
May 12, 2011, read first time and referred to Committee on
Jurisprudence; May 21, 2011, reported favorably by the following
vote: Yeas 5, Nays 0; May 21, 2011, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the family allowance, treatment of exempt property, and
an allowance in lieu of exempt property in the administration of a
decedent's estate.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CHANGES TO TEXAS PROBATE CODE
SECTION 1.01. Sections 139, 140, and 143, Texas Probate
Code, are amended to read as follows:
Sec. 139. APPLICATION FOR ORDER OF NO ADMINISTRATION. If
the value of the entire assets of an estate, not including homestead
and exempt property, does not exceed the amount to which the
surviving spouse, [and] minor children, and adult incapacitated
children of the decedent are entitled as a family allowance, there
may be filed by or on behalf of the surviving spouse, [or] minor
children, or adult incapacitated children an application in any
court of proper venue for administration, or, if an application for
the appointment of a personal representative has been filed but not
yet granted, then in the court where such application has been
filed, requesting the court to make a family allowance and to enter
an order that no administration shall be necessary. The
application shall state the names of the heirs or devisees, a list
of creditors of the estate together with the amounts of the claims
so far as the same are known, and a description of all real and
personal property belonging to the estate, together with the
estimated value thereof according to the best knowledge and
information of the applicant, and the liens and encumbrances
thereon, with a prayer that the court make a family allowance and
that, if the entire assets of the estate, not including homestead
and exempt property, are thereby exhausted, the same be set aside to
the surviving spouse, [and] minor children, and adult incapacitated
children, as in the case of other family allowances provided for by
this Code.
Sec. 140. HEARING AND ORDER UPON THE APPLICATION. Upon the
filing of an application for no administration such as that
provided for in the preceding Section, the court may hear the same
forthwith without notice, or at such time and upon such notice as
the court requires. Upon the hearing of the application, if the
court finds that the facts contained therein are true and that the
expenses of last illness, funeral charges, and expenses of the
proceeding have been paid or secured, the court shall make a family
allowance and, if the entire assets of the estate, not including
homestead and exempt property, are thereby exhausted, shall order
that no administration be had of the estate and shall assign to the
surviving spouse, [and] minor children, and adult incapacitated
children the whole of the estate, in the same manner and with the
same effect as provided in this Code for the making of family
allowances to the surviving spouse, [and] minor children, and adult
incapacitated children.
Sec. 143. SUMMARY PROCEEDINGS FOR SMALL ESTATES AFTER
PERSONAL REPRESENTATIVE APPOINTED. Whenever, after the inventory,
appraisement, and list of claims has been filed by a personal
representative, it is established that the estate of a decedent,
exclusive of the homestead and exempt property and family allowance
to the surviving spouse, [and] minor children, and adult
incapacitated children, does not exceed the amount sufficient to
pay the claims of Classes One to Four, inclusive, as claims are
hereinafter classified, the personal representative shall, upon
order of the court, pay the claims in the order provided and to the
extent permitted by the assets of the estate subject to the payment
of such claims, and thereafter present the personal
representative's [his] account with an application for the
settlement and allowance thereof. Thereupon the court, with or
without notice, may adjust, correct, settle, allow or disallow such
account, and, if the account is settled and allowed, may decree
final distribution, discharge the personal representative, and
close the administration.
SECTION 1.02. Sections 271(a) and (b), Texas Probate Code,
are amended to read as follows:
(a) Unless an affidavit is filed under Subsection (b) of
this section, immediately after the inventory, appraisement, and
list of claims have been approved, the court shall, by order, set
apart:
(1) the homestead for the use and benefit of the
surviving spouse and minor children; and
(2) all other property of the estate that is exempt
from execution or forced sale by the constitution and laws of this
state for the use and benefit of the surviving spouse, [and] minor
children, [and] unmarried adult children remaining with the family
of the deceased, and each other adult child who is incapacitated.
(b) Before the approval of the inventory, appraisement, and
list of claims:
(1) a surviving spouse or any person who is authorized
to act on behalf of minor children of the deceased may apply to the
court to have exempt property, including the homestead, set aside
by filing an application and a verified affidavit listing all of the
property that the applicant claims is exempt; and
(2) any unmarried adult child [children] remaining
with the family of the deceased, any other adult child who is
incapacitated, or a person who is authorized to act on behalf of the
adult incapacitated child may apply to the court to have all exempt
property other than the homestead set aside by filing an
application and a verified affidavit listing all of the other
property that the applicant claims is exempt.
SECTION 1.03. Sections 272, 273, 274, 275, 276, 286, 287,
288, 290, 291, and 292, Texas Probate Code, are amended to read as
follows:
Sec. 272. TO WHOM DELIVERED. The exempt property set apart
to the surviving spouse and children shall be delivered by the
executor or administrator without delay as follows: (a) If there
be a surviving spouse and no children, or if the children, including
any adult incapacitated children, be the children of the surviving
spouse, the whole of such property shall be delivered to the
surviving spouse. (b) If there be children and no surviving
spouse, such property, except the homestead, shall be delivered to
the guardian of each of those [such] children who is a minor, to
each of those children who is of lawful age and not incapacitated,
and to the guardian of each of those children who is an
incapacitated adult or to another appropriate person, as determined
by the court, on behalf of the adult incapacitated child if there is
no guardian [if they be of lawful age, or to their guardian if they
be minors]. (c) If there be children of the deceased of whom the
surviving spouse is not the parent, the share of such children in
such exempted property, except the homestead, shall be delivered to
the guardian of each of those [such] children who is a minor, to
each of those children who is of lawful age and not incapacitated,
and to the guardian of each of those children who is an
incapacitated adult or to another appropriate person, as determined
by the court, on behalf of the adult incapacitated child if there is
no guardian [if they be of lawful age, or to their guardian, if they
be minors]. (d) In all cases, the homestead shall be delivered to
the surviving spouse, if there be one, and if there be no surviving
spouse, to the guardian of the minor children.
Sec. 273. ALLOWANCE IN LIEU OF EXEMPT PROPERTY. In case
there should not be among the effects of the deceased all or any of
the specific articles exempted from execution or forced sale by the
Constitution and laws of this state, the court shall make a
reasonable allowance in lieu thereof, to be paid to such surviving
spouse and children, or such of them as there are, as hereinafter
provided. The allowance in lieu of a homestead shall in no case
exceed $15,000 and the allowance for other exempted property shall
in no case exceed $5,000, exclusive of the allowance for the support
of the surviving spouse, [and] minor children, and adult
incapacitated children which is hereinafter provided for.
Sec. 274. HOW ALLOWANCE PAID. The allowance made in lieu of
any of the exempted property shall be paid either in money out of
the funds of the estate that come to the hands of the executor or
administrator, or in any property of the deceased that such
surviving spouse, [or] children who are [, if they be] of lawful
age, guardian of children who are [or their guardian if they be]
minors, or guardian of each adult incapacitated child or other
appropriate person, as determined by the court, on behalf of the
adult incapacitated child if there is no guardian, shall choose to
take at the appraisement, or a part thereof, or both, as they shall
select; provided, however, that property specifically bequeathed
or devised to another may be so taken, or may be sold to raise funds
for the allowance as hereinafter provided, only if the other
available property shall be insufficient to provide the allowance.
Sec. 275. TO WHOM ALLOWANCE PAID. The allowance in lieu of
exempt property shall be paid by the executor or administrator, as
follows: (a) If there be a surviving spouse and no children, or if
all the children, including any adult incapacitated children, be
the children of the surviving spouse, the whole shall be paid to
such surviving spouse.
(b) If there be children and no surviving spouse, the whole
shall be [paid to and] equally divided among them and each of their
shares shall be paid as follows:
(1) if the child is [they be] of lawful age and not
incapacitated, to the child;
(2) [, but] if the child is a minor, [any of such
children are minors, their shares shall be paid] to the child's
[their] guardian; or
(3) if the child is an incapacitated adult, to the
adult incapacitated child's guardian or another appropriate
person, as determined by the court, on behalf of the adult
incapacitated child if there is no guardian [guardians].
(c) If there be a surviving spouse, and children of the
deceased, some of whom are not children of the surviving spouse, the
surviving spouse shall receive one-half of the whole, plus the
shares of the children of whom the survivor is the parent, and the
remaining shares shall be paid with respect to each of the children
of whom the survivor is not the parent as follows:
(1) if the child is an adult who is not incapacitated,
to the child;
(2) if the child is a minor [or, if they are minors],
to the child's [their] guardian; or
(3) if the child is an incapacitated adult, to the
adult incapacitated child's guardian or another appropriate
person, as determined by the court, on behalf of the adult
incapacitated child if there is no guardian.
Sec. 276. SALE TO RAISE ALLOWANCE. If there be no property
of the deceased that such surviving spouse or children are willing
to take for such allowance, or not a sufficiency, and there be no
funds, or not sufficient funds, of the estate in the hands of such
executor or administrator to pay such allowance, or any part
thereof, the court, on the application in writing of such surviving
spouse and children, or of a person authorized to represent any of
those children, shall order a sale of so much of the estate for cash
as will be sufficient to raise the amount of such allowance, or a
part thereof, as the case requires.
Sec. 286. FAMILY ALLOWANCE TO SURVIVING SPOUSES, [AND]
MINORS, AND ADULT INCAPACITATED CHILDREN. (a) Unless an affidavit
is filed under Subsection (b) of this section, immediately after
the inventory, appraisement, and list of claims have been approved,
the court shall fix a family allowance for the support of the
surviving spouse, [and] minor children, and adult incapacitated
children of the deceased.
(b) Before the approval of the inventory, appraisement, and
list of claims, a surviving spouse or any person who is authorized
to act on behalf of minor children or adult incapacitated children
of the deceased may apply to the court to have the court fix the
family allowance by filing an application and a verified affidavit
describing the amount necessary for the maintenance of the
surviving spouse, [and] minor children, and adult incapacitated
children for one year after the date of the death of the decedent
and describing the spouse's separate property and any property that
minor children or adult incapacitated children have in their own
right. The applicant bears the burden of proof by a preponderance
of the evidence at any hearing on the application. The court shall
fix a family allowance for the support of the surviving spouse,
[and] minor children, and adult incapacitated children of the
deceased.
Sec. 287. AMOUNT OF FAMILY ALLOWANCE. Such allowance shall
be of an amount sufficient for the maintenance of such surviving
spouse, [and] minor children, and adult incapacitated children for
one year from the time of the death of the testator or intestate.
The allowance shall be fixed with regard to the facts or
circumstances then existing and those anticipated to exist during
the first year after such death. The allowance may be paid either
in a lump sum or in installments, as the court shall order.
Sec. 288. WHEN FAMILY ALLOWANCE NOT MADE. No such allowance
shall be made for the surviving spouse when the survivor has
separate property adequate to the survivor's maintenance; nor shall
such allowance be made for the minor children or adult
incapacitated children when they have property in their own right
adequate to their maintenance.
Sec. 290. FAMILY ALLOWANCE PREFERRED. The family allowance
made for the support of the surviving spouse, [and] minor children,
and adult incapacitated children of the deceased shall be paid in
preference to all other debts or charges against the estate, except
Class 1 claims.
Sec. 291. TO WHOM FAMILY ALLOWANCE PAID. The executor or
administrator shall apportion and pay the family allowance:
(a) To the surviving spouse, if there be one, for the use of
the survivor and the minor children and adult incapacitated
children, if such children be the survivor's.
(b) If the surviving spouse is not the parent of such minor
children and adult incapacitated children, or of some of them, the
portion of such allowance necessary for the support of such minor
child or children of which the survivor is not the parent shall be
paid to the guardian or guardians of such child or children who are
minors, and to the guardian of each adult incapacitated child or
another appropriate person, as determined by the court, on behalf
of the adult incapacitated child if there is no guardian.
(c) If there be no surviving spouse, the allowance to the
minor child or children shall be paid to the guardian or guardians
of such minor child or children, and the allowance to each adult
incapacitated child shall be paid to the guardian of the adult
incapacitated child or another appropriate person, as determined by
the court, on behalf of the adult incapacitated child if there is no
guardian.
(d) If there be a surviving spouse and no minor child or
adult incapacitated child [children], the entire allowance shall be
paid to the surviving spouse.
Sec. 292. MAY TAKE PROPERTY FOR FAMILY ALLOWANCE. The
surviving spouse, [or] the guardian of the minor children, or the
guardian of an adult incapacitated child or another appropriate
person, as determined by the court, on behalf of the adult
incapacitated child if there is no guardian, as the case may be,
shall have the right to take in payment of such allowance, or any
part thereof, any of the personal property of the estate at its
appraised value as shown by the appraisement; provided, however,
that property specifically devised or bequeathed to another may be
so taken, or may be sold to raise funds for the allowance as
hereinafter provided, only if the other available property shall be
insufficient to provide the allowance.
SECTION 1.04. The changes in law made by this article apply
only to the estate of a decedent who dies on or after the effective
date of this Act. The estate of a decedent who dies before the
effective date of this Act is governed by the law in effect on the
date of the decedent's death, and the former law is continued in
effect for that purpose.
ARTICLE 2. CHANGES TO ESTATES CODE
SECTION 2.01. Sections 353.051(a) and (b), Estates Code, as
effective January 1, 2014, are amended to read as follows:
(a) Unless an application and verified affidavit are filed
as provided by Subsection (b), immediately after the inventory,
appraisement, and list of claims of an estate are approved, the
court by order shall set aside:
(1) the homestead for the use and benefit of the
decedent's surviving spouse and minor children; and
(2) all other estate property that is exempt from
execution or forced sale by the constitution and laws of this state
for the use and benefit of the decedent's:
(A) surviving spouse and minor children; [and]
(B) unmarried adult children remaining with the
decedent's family; and
(C) each other adult child who is incapacitated.
(b) Before the inventory, appraisement, and list of claims
of an estate are approved:
(1) the decedent's surviving spouse or any other
person authorized to act on behalf of the decedent's minor children
may apply to the court to have exempt property, including the
homestead, set aside by filing an application and a verified
affidavit listing all property that the applicant claims is exempt;
and
(2) any of the decedent's unmarried adult children
remaining with the decedent's family, any other adult child of the
decedent who is incapacitated, or a person who is authorized to act
on behalf of the adult incapacitated child may apply to the court to
have all exempt property, other than the homestead, set aside by
filing an application and a verified affidavit listing all
property, other than the homestead, that the applicant claims is
exempt.
SECTION 2.02. Sections 353.052(b), (c), and (d), Estates
Code, as effective January 1, 2014, are amended to read as follows:
(b) If there is a surviving spouse and there are no children
of the decedent, or if all the children, including any adult
incapacitated children, of the decedent are also the children of
the surviving spouse, the executor or administrator shall deliver
all exempt property to the surviving spouse.
(c) If there is a surviving spouse and there are children of
the decedent who are not also children of the surviving spouse, the
executor or administrator shall deliver the share of those children
in exempt property, other than the homestead, to:
(1) the children, if the children are of legal age;
[or]
(2) the children's guardian, if the children are
minors; or
(3) the guardian of each of the children who is an
incapacitated adult, or to another appropriate person, as
determined by the court, on behalf of the adult incapacitated child
if there is no guardian.
(d) If there is no surviving spouse and there are children
of the decedent, the executor or administrator shall deliver exempt
property, other than the homestead, to:
(1) the children, if the children are of legal age;
[or]
(2) the children's guardian, if the children are
minors; or
(3) the guardian of each of the children who is an
incapacitated adult, or to another appropriate person, as
determined by the court, on behalf of the adult incapacitated child
if there is no guardian.
SECTION 2.03. Section 353.053(b), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(b) The allowance in lieu of a homestead may not exceed
$15,000, and the allowance in lieu of other exempt property may not
exceed $5,000, excluding the family allowance for the support of
the surviving spouse, [and] minor children, and adult incapacitated
children provided by Subchapter C.
SECTION 2.04. Sections 353.054(b), (c), and (d), Estates
Code, as effective January 1, 2014, are amended to read as follows:
(b) If there is a surviving spouse and there are no children
of the decedent, or if all the children, including any adult
incapacitated children, of the decedent are also the children of
the surviving spouse, the executor or administrator shall pay the
entire allowance to the surviving spouse.
(c) If there is a surviving spouse and there are children of
the decedent who are not also children of the surviving spouse, the
executor or administrator shall pay the surviving spouse one-half
of the entire allowance plus the shares of the decedent's children
of whom the surviving spouse is the parent. The remaining shares
must be paid to:
(1) the decedent's adult children of whom the
surviving spouse is not a parent and who are not incapacitated; [or]
(2) the guardian of the children of whom the surviving
spouse is not a parent and who [described by Subdivision (1), if
those children] are minors; or
(3) the guardian or another appropriate person, as
determined by the court, if there is no guardian, of each child who
is an incapacitated adult.
(d) If there is no surviving spouse and there are children
of the decedent, the executor or administrator shall divide the
entire allowance equally among the children and pay the children's
shares to:
(1) each of those [the] children who are adults and who
are not incapacitated;
(2) the guardian of each [, if the children are of
legal age, or, if any] of those [the] children who are minors; or
(3) the guardian or another appropriate person, as
determined by the court, if there is no guardian, of each of those
children who is an incapacitated adult[, pay the minor children's
shares to the guardian of the minor children].
SECTION 2.05. Section 353.055(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) An allowance in lieu of any exempt property shall be
paid in the manner selected by the decedent's surviving spouse or
children of legal age, or by the guardian of the decedent's minor
children, or by the guardian of each adult incapacitated child or
other appropriate person, as determined by the court, if there is no
guardian, as follows:
(1) in money out of estate funds that come into the
executor's or administrator's possession;
(2) in any of the decedent's property or a part of the
property chosen by those individuals at the appraisement; or
(3) part in money described by Subdivision (1) and
part in property described by Subdivision (2).
SECTION 2.06. Section 353.056(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) On the written application of the decedent's surviving
spouse and children, or of a person authorized to represent any of
those children, the court shall order the sale of estate property
for cash in an amount that will be sufficient to raise the amount of
the allowance provided under Section 353.053 or a portion of that
amount, as necessary, if:
(1) the decedent had no property that the surviving
spouse or children are willing to take for the allowance or the
decedent had insufficient property; and
(2) there are not sufficient estate funds in the
executor's or administrator's possession to pay the amount of the
allowance or a portion of that amount, as applicable.
SECTION 2.07. Section 353.101, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 353.101. FAMILY ALLOWANCE. (a) Unless an application
and verified affidavit are filed as provided by Subsection (b),
immediately after the inventory, appraisement, and list of claims
of an estate are approved, the court shall fix a family allowance
for the support of the decedent's surviving spouse, [and] minor
children, and adult incapacitated children.
(b) Before the inventory, appraisement, and list of claims
of an estate are approved, the decedent's surviving spouse or any
other person authorized to act on behalf of the decedent's minor
children or adult incapacitated children may apply to the court to
have the court fix the family allowance by filing an application and
a verified affidavit describing:
(1) the amount necessary for the maintenance of the
surviving spouse, [and] the decedent's minor children, and the
decedent's adult incapacitated children for one year after the date
of the decedent's death; and
(2) the surviving spouse's separate property and any
property that the decedent's minor children or adult incapacitated
children have in their own right.
(c) At a hearing on an application filed under Subsection
(b), the applicant has the burden of proof by a preponderance of the
evidence. The court shall fix a family allowance for the support
of the decedent's surviving spouse, [and] minor children, and adult
incapacitated children.
(d) A family allowance may not be made for:
(1) the decedent's surviving spouse, if the surviving
spouse has separate property adequate for the surviving spouse's
maintenance; [or]
(2) the decedent's minor children, if the minor
children have property in their own right adequate for the
children's maintenance; or
(3) any of the decedent's adult incapacitated
children, if the adult incapacitated child has property in the
person's own right adequate for the person's maintenance.
SECTION 2.08. Section 353.102(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) The amount of the family allowance must be sufficient
for the maintenance of the decedent's surviving spouse, [and] minor
children, and adult incapacitated children for one year from the
date of the decedent's death.
SECTION 2.09. Section 353.104, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 353.104. PREFERENCE OF FAMILY ALLOWANCE. The family
allowance made for the support of the decedent's surviving spouse,
[and] minor children, and adult incapacitated children shall be
paid in preference to all other debts of or charges against the
estate, other than Class 1 claims.
SECTION 2.10. Sections 353.105(b), (c), (d), and (e),
Estates Code, as effective January 1, 2014, are amended to read as
follows:
(b) If there is a surviving spouse and there are no minor
children or adult incapacitated children of the decedent, the
executor or administrator shall pay the entire family allowance to
the surviving spouse.
(c) If there is a surviving spouse and all of the minor
children and adult incapacitated children of the decedent are also
the children of the surviving spouse, the executor or administrator
shall pay the entire family allowance to the surviving spouse for
use by the surviving spouse, [and] the decedent's minor children,
and adult incapacitated children.
(d) If there is a surviving spouse and some or all of the
minor children or adult incapacitated children of the decedent are
not also children of the surviving spouse, the executor or
administrator shall pay:
(1) the portion of the entire family allowance
necessary for the support of those minor children to the guardian of
those children; and
(2) the portion of the entire family allowance
necessary for the support of each of those adult incapacitated
children to the guardian of the adult incapacitated child or
another appropriate person, as determined by the court, on behalf
of the adult incapacitated child if there is no guardian.
(e) If there is no surviving spouse and there are minor
children or adult incapacitated children of the decedent, the
executor or administrator shall pay the family allowance:
(1) for the minor children, to the guardian of those
children; and
(2) for each adult incapacitated child, to the
guardian of the adult incapacitated child or another appropriate
person, as determined by the court, on behalf of the adult
incapacitated child if there is no guardian.
SECTION 2.11. The heading to Section 353.106, Estates Code,
as effective January 1, 2014, is amended to read as follows:
Sec. 353.106. SURVIVING SPOUSE, [OR] MINOR CHILDREN, OR
ADULT INCAPACITATED CHILDREN MAY TAKE PERSONAL PROPERTY FOR FAMILY
ALLOWANCE.
SECTION 2.12. Section 353.106(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) A decedent's surviving spouse, [or] the guardian of the
decedent's minor children, or the guardian of an adult
incapacitated child of the decedent or another appropriate person,
as determined by the court, on behalf of the adult incapacitated
child if there is no guardian, as applicable, is entitled to take,
at the property's appraised value as shown by the appraisement, any
of the estate's personal property in full or partial payment of the
family allowance.
SECTION 2.13. Section 353.107(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) The court shall, as soon as the inventory, appraisement,
and list of claims are returned and approved, order the sale of
estate property for cash in an amount that will be sufficient to
raise the amount of the family allowance, or a portion of that
amount, as necessary, if:
(1) the decedent had no personal property that the
surviving spouse, [or] the guardian of the decedent's minor
children, or the guardian of the decedent's adult incapacitated
child or other appropriate person acting on behalf of the adult
incapacitated child is willing to take for the family allowance, or
the decedent had insufficient personal property; and
(2) there are not sufficient estate funds in the
executor's or administrator's possession to pay the amount of the
family allowance or a portion of that amount, as applicable.
SECTION 2.14. Section 354.001(a), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(a) If, after a personal representative of an estate has
filed the inventory, appraisement, and list of claims as required
by Chapter 309, it is established that the decedent's estate,
excluding any homestead, exempt property, and family allowance to
the decedent's surviving spouse, [and] minor children, and adult
incapacitated children, does not exceed the amount sufficient to
pay the claims against the estate classified as Classes 1 through 4
under Section 355.102, the representative shall:
(1) on order of the court, pay those claims in the
order provided and to the extent permitted by the assets of the
estate subject to the payment of those claims; and
(2) after paying the claims in accordance with
Subdivision (1), present to the court the representative's account
with an application for the settlement and allowance of the
account.
SECTION 2.15. Sections 451.001(a) and (d), Estates Code, as
effective January 1, 2014, are amended to read as follows:
(a) If the value of the entire assets of an estate,
excluding homestead and exempt property, does not exceed the amount
to which the surviving spouse, [and] minor children, and adult
incapacitated children of the decedent are entitled as a family
allowance, an application may be filed by or on behalf of the
surviving spouse, [or] minor children, or adult incapacitated
children requesting a court to make a family allowance and to enter
an order that no administration of the decedent's estate is
necessary.
(d) The application must also include a prayer that the
court make a family allowance and that, if the family allowance
exhausts the entire assets of the estate, excluding homestead and
exempt property, the entire assets of the estate be set aside to the
surviving spouse, [and] minor children, and adult incapacitated
children, as with other family allowances provided for by
Subchapter C, Chapter 353.
SECTION 2.16. Section 451.002(b), Estates Code, as
effective January 1, 2014, is amended to read as follows:
(b) On the hearing of the application, if the court finds
that the facts contained in the application are true and that the
expenses of last illness, funeral charges, and expenses of the
proceeding have been paid or secured, the court shall:
(1) make a family allowance; and
(2) if the entire assets of the estate, excluding
homestead and exempt property, are exhausted by the family
allowance made under Subdivision (1):
(A) assign to the surviving spouse, [and] minor
children, and adult incapacitated children the entire estate in the
same manner and with the same effect as provided in Subchapter C,
Chapter 353, for the making of a family allowance to the surviving
spouse, [and] minor children, and adult incapacitated children; and
(B) order that there shall be no administration
of the estate.
SECTION 2.17. The changes in law made to Sections 139, 140,
143, 271(a) and (b), 272, 273, 274, 275, 276, 286, 287, 288, 290,
291, and 292, Texas Probate Code, by Article 1 of this Act are
repealed.
SECTION 2.18. This article takes effect January 1, 2014.
ARTICLE 3. EFFECTIVE DATE
SECTION 3.01. Except as otherwise provided by this Act,
this Act takes effect September 1, 2011.
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