By: Hartnett H.B. No. 2899
A BILL TO BE ENTITLED
AN ACT
relating to decedents' estates.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 29, Texas Probate Code, is repealed.
SECTION 2. Section 34A, Texas Probate Code, is amended to
read as follows:
Sec. 34A. ATTORNEYS AD LITEM. (a) Except as provided by
Section 53(c) of this code, the judge of a probate court may appoint
an attorney ad litem in any probate proceeding to represent the
interests of:
(1) a person having a legal disability;
(2) [,] a nonresident;
(3) [,] an unborn or unascertained person;
(4) [, or] an unknown or missing heir; or
(5) an unknown or missing person entitled to property
deposited in an account in the court's registry under Section
408(b) of this code [in any probate proceeding].
(b) Subject to Subsection (c) of this section, an [Each]
attorney ad litem appointed under this section is entitled to
reasonable compensation for services in the amount set by the
court. The court shall:
(1) tax the compensation [and to be taxed] as costs in
the probate proceeding; or
(2) for an attorney ad litem appointed to represent
the interests of an unknown or missing person described by
Subsection (a)(5) of this section, order that the compensation be
paid from money in the account described by that subdivision.
(c) The court order appointing an attorney ad litem to
represent the interests of an unknown or missing person described
by Subsection (a)(5) of this section must require the attorney ad
litem to conduct a search for the person. Compensation paid under
Subsection (b) of this section to the attorney ad litem may not
exceed 10 percent of the amount on deposit in the account described
by Subsection (a)(5) of this section on the date:
(1) the attorney ad litem reports to the court the
location of the previously unknown or missing person; or
(2) the money in the account is paid to the comptroller
as provided by Section 427 of this code.
SECTION 3. Section 48, Texas Probate Code, is amended by
adding Subsection (d) to read as follows:
(d) Notwithstanding Section 16.051, Civil Practice and
Remedies Code, a proceeding to declare heirship of a decedent may be
brought at any time after the decedent's death.
SECTION 4. Section 49(a), Texas Probate Code, is amended to
read as follows:
(a) Such proceedings may be instituted and maintained in any
of the instances enumerated above by the qualified personal
representative of the estate of such decedent, by any person or
persons claiming to be a secured or unsecured creditor or the owner
of the whole or a part of the estate of such decedent, or by the
guardian of the estate of a ward, if the proceedings are instituted
and maintained in the probate court in which the proceedings for the
guardianship of the estate were pending at the time of the death of
the ward. In such a case an application shall be filed in a proper
court stating the following information:
(1) the name of the decedent and the time and place of
death;
(2) the names and residences of the decedent's heirs,
the relationship of each heir to the decedent, and the true interest
of the applicant and each of the heirs in the estate of the
decedent;
(3) all the material facts and circumstances within
the knowledge and information of the applicant that might
reasonably tend to show the time or place of death or the names or
residences of all heirs, if the time or place of death or the names
or residences of all the heirs are not definitely known to the
applicant;
(4) a statement that all children born to or adopted by
the decedent have been listed;
(5) a statement that each marriage of the decedent has
been listed with the date of the marriage, the name of the spouse,
and if the marriage was terminated, the date and place of
termination, and other facts to show whether a spouse has had an
interest in the property of the decedent;
(6) whether the decedent died testate and if so, what
disposition has been made of the will;
(7) a general description of all the real and personal
property belonging to the estate of the decedent; and
(8) an explanation for the omission of any of the
foregoing information that is omitted from the application.
SECTION 5. Section 77, Texas Probate Code, is amended to
read as follows:
Sec. 77. ORDER OF PERSONS QUALIFIED TO SERVE. Letters
testamentary or of administration shall be granted to persons who
are qualified to act, in the following order:
(a) To the person named as executor in the will of the
deceased.
(b) To the surviving husband or wife.
(c) To the principal devisee or legatee of the testator.
(d) To any devisee or legatee of the testator.
(e) To the next of kin of the deceased, the nearest in order
of descent first, and so on, and next of kin includes a person and
his descendants who legally adopted the deceased or who have been
legally adopted by the deceased.
(f) To a creditor of the deceased.
(g) To any person of good character residing in the county
who applies therefor.
(h) To any other person not disqualified under the following
Section. When persons [applicants] are equally entitled, letters
shall be granted to the person [applicant] who, in the judgment of
the court, is most likely to administer the estate advantageously,
or letters [they] may be granted to [any] two or more of those
persons [such applicants].
SECTION 6. Section 83(a), Texas Probate Code, is amended to
read as follows:
(a) Where Original Application Has Not Been Heard. If, after
an application for the probate of a will or for the appointment of a
general personal representative has been filed, and before such
application has been heard, an application for the probate of a will
of the decedent, not theretofore presented for probate, is filed,
the court shall hear both applications together and determine what
instrument, if any, should be admitted to probate, or whether the
decedent died intestate. The court may not sever or bifurcate the
proceeding on the applications.
SECTION 7. Section 149C, Texas Probate Code, is as follows:
Sec. 149C. REMOVAL OF INDEPENDENT EXECUTOR
(a) Without Notice by Personal Service.
(1) The county court, on its own motion or on motion of
any interested person, and without notice by personal service, may
remove any independent executor, appointed under provisions of this
Code, who:
(A) Neglects to qualify in the manner and time
required by law;
(B) 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 his knowledge;
(C) Cannot be served with notices or other
processes because of the fact that the:
(i) independent executor's whereabouts are
unknown;
(ii) independent executor is eluding
service; or
(iii) independent executor is a nonresident
of this state who does not have a resident agent to accept service
of process in any probate proceeding or other action relating to the
estate; or
(D) Has misapplied, embezzled, or removed from
the State, or is about to misapply, embezzle, or remove from the
State, all or any part of the property committed to the independent
executor's care.
(2) The court may remove a independent executor under
Paragraph (A), Subdivision (1), of this subsection only if the
independent executor neglects to qualify within 30 days after the
court sends a notice by certified mail to the last known address of
the independent executor and to the last known address of the
independent executor's attorney, notifying them of the court's
intent to remove the independent executor for failure to qualify in
the manner and time required by law.
(3) The court may remove a independent executor under
Paragraph (B), Subdivision (1), of this subsection only if the
independent executor neglects to file an inventory as required by
law within 30 days after the court sends a notice by certified mail
to the last known address of the independent executor and to the
last known address of the independent executor's attorney,
notifying them of the court's intent to remove the independent
executor for failure to file an inventory of the property of the
estate and list of claims that have come to the independent
executor's knowledge.
(4) The court may remove a independent executor under
Paragraph (D), Subdivision (1), of this subsection only on the
presentation of clear and convincing evidence given under oath.
(b) [(a)] With Notice by Personal Service. 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
affidavit or certificate required by Section 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.
(c) [(b)] The order of removal shall state the cause of
removal and shall direct by order the disposition of the assets
remaining in the name or under the control of the removed executor.
The order of removal shall require that letters issued to the
removed executor shall be surrendered and that all letters shall be
canceled of record. If an independent executor is removed by the
court under this section, the court may, on application, appoint a
successor independent executor as provided by Section 154A of this
code.
(d) [(c)] An independent executor who defends an action for
his removal in good faith, whether successful or not, shall be
allowed out of the estate his necessary expenses and disbursements,
including reasonable attorney's fees, in the removal proceedings.
(e) [(d)] Costs and expenses incurred by the party seeking
removal incident to removal of an independent executor appointed
without bond, including reasonable attorney's fees and expenses,
may be paid out of the estate.
SECTION 8. Part 1, Chapter VIII, Texas Probate Code, is
amended by adding Section 254 to read as follows:
Sec. 254. PENALTY FOR FAILURE TO TIMELY FILE INVENTORY,
APPRAISEMENT, AND LIST OF CLAIMS. (a) This section applies only to
a personal representative, including an independent executor or
independent administrator, who does not file an inventory,
appraisement, and list of claims within the period prescribed by
Section 250 of this code or any extension granted by the court.
(b) Any person interested in the estate on written
complaint, or the court on the court's own motion, may have a
personal representative to whom this section applies cited to file
the inventory, appraisement, and list of claims and show cause for
the failure to timely file.
(c) If the personal representative does not file the
inventory, appraisement, and list of claims after being cited or
does not show good cause for the failure to timely file, the court
on hearing may fine the representative in an amount not to exceed
$1,000.
(d) The personal representative and the representative's
sureties, if any, are liable for any fine imposed under this section
and for all damages and costs sustained by the representative's
failure. The fine, damages, and costs may be recovered in any court
of competent jurisdiction.
SECTION 9. Section 407, Texas Probate Code, is amended to
read as follows:
Sec. 407. CITATION AND NOTICE UPON PRESENTATION OF ACCOUNT
FOR FINAL SETTLEMENT. Upon the filing of an account for final
settlement by temporary or permanent personal representatives of
the estates of decedents, citation shall contain a statement that
such final account has been filed, the time and place when it will
be considered by the court, and a statement requiring the person or
persons cited to appear and contest the same if they see proper.
Such citation shall be issued by the county clerk to the persons and
in the manner set out below.
1. Citation [In case of the estates of deceased
persons, notice] shall be given [by the personal representative] to
each heir or beneficiary of the decedent by certified mail, return
receipt requested, unless another method of service [type of
notice] is directed by the court by written order. The citation
[notice] must include a copy of the account for final settlement.
2. If the court deems further additional notice
necessary, it shall require the same by written order. In its
discretion, the court may allow the waiver of citation [notice] of
an account for final settlement in a proceeding concerning a
decedent's estate.
SECTION 10. Section 408, Texas Probate Code, is amended by
amending Subsections (b), (c), and (d) to read as follows:
(b) Distribution of Remaining Property. Upon final
settlement of an estate, if there be any of such estate remaining in
the hands of the personal representative, the court shall order
that a partition and distribution be made among the persons
entitled to receive such estate. The court shall order the
representative to deposit in an account in the court's registry any
remaining estate property that is money and to which a person who is
unknown or missing is entitled. In addition, the court shall order
the representative to sell, on terms the court determines are best,
remaining estate property that is not money and to which a person
who is unknown or missing is entitled. The court shall order the
representative to deposit the sale proceeds in an account in the
court's registry. The court shall hold money deposited in an
account under this subsection until the court renders:
(1) an order requiring money in the account to be paid
to the previously unknown or missing person who is entitled to the
money; or
(2) another order regarding the disposition of the
money.
(c) Discharge of Representative When No Property Remains.
If, upon such settlement, there be none of the estate remaining in
the hands of the representative, the representative [he] shall be
discharged from the representative's [his] trust and the estate
ordered closed, subject to Subsection (e) of this section.
(d) Discharge When Estate Fully Administered. Whenever the
representative of an estate has fully administered the same in
accordance with this code [Code] and the orders of the court, and
the representative's [his] final account has been approved, and the
representative [he] has delivered all of said estate remaining in
the representative's [his] hands to the person or persons entitled
to receive the same, it shall be the duty of the court to enter an
order discharging such representative from the representative's
[his] trust, and declaring the estate closed.
SECTION 11. Section 427, Texas Probate Code, is amended to
read as follows:
Sec. 427. WHEN ESTATES TO BE PAID INTO STATE TREASURY. If
any person entitled to a portion of an estate, except a resident
minor without a guardian, does [shall] not demand the person's
[his] portion, including any portion deposited in an account in the
court's registry under Section 408(b) of this code, from the
executor or administrator within six months after an order of court
approving the report of commissioners of partition, or within six
months after the settlement of the final account of an executor or
administrator, as the case may be, the court by written order shall
require the executor or administrator to pay so much of said portion
as is in money to the comptroller; and such portion as is in other
property the court [he] shall order the executor or administrator
to sell on such terms as the court thinks best, and, when the
proceeds of such sale are collected, the court shall order the same
to be paid to the comptroller, in all such cases allowing the
executor or administrator reasonable compensation for the
executor's or administrator's [his] services. A suit to recover
proceeds of the sale is governed by Section 433 of this code [Code].
SECTION 12. This Act takes effect September 1, 2011.