82R31953 MTB-D
By: Hartnett H.R. No. 2690
R E S O L U T I O N
BE IT RESOLVED by the House of Representatives of the State of
Texas, 82nd Legislature, Regular Session, 2011, That House Rule 13,
Section 9(a), be suspended in part as provided by House Rule 13,
Section 9(f), to enable the conference committee appointed to
resolve the differences on Senate Bill 1198 (decedents' estates) to
consider and take action on the following matters:
(1) House Rule 13, Section 9(a)(4), is suspended to permit
the committee to add text on matters which are not included in
either the house or senate version of the bill by adding the
following sections to the bill:
SECTION 1.08. 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 1.13. Subsections (a) and (b), Section 53C, Texas
Probate Code, are amended to read as follows:
(a) This section applies in a proceeding to declare heirship
of a decedent only with respect to an individual who[:
[(1) petitions the court for a determination of right
of inheritance as authorized by Section 42(b) of this code; and
[(2)] claims to be a biological child of the
decedent[, but with respect to whom a parent-child relationship
with the decedent was not established as provided by Section
160.201, Family Code,] or [who] claims inheritance through a
biological child of the decedent[, if a parent-child relationship
between the individual through whom the inheritance is claimed and
the decedent was not established as provided by Section 160.201,
Family Code].
(b) The presumption under Section 160.505, Family Code,
that applies in establishing a parent-child relationship also
applies in determining heirship in the probate court using the
results of genetic testing ordered with respect to an individual
described by Subsection (a) of this section, and the presumption
may be rebutted in the same manner provided by Section 160.505,
Family Code. [Unless the results of genetic testing of another
individual who is an heir of the decedent are admitted as rebuttal
evidence, the court shall find that the individual described by
Subsection (a) of this section is an heir of the decedent if the
results of genetic testing ordered under Section 53A of this
chapter identify a tested individual who is an heir of the decedent
as the ancestor of the individual described by Subsection (a) of
this section.]
SECTION 1.17. 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 [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 1.32. 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 OR AFFIDAVIT IN LIEU OF. (a) This
section applies only to a personal representative, including an
independent executor or administrator, who does not file an
inventory, appraisement, and list of claims or affidavit in lieu of
the inventory, appraisement, and list of claims, as applicable,
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 or affidavit in
lieu of the inventory, appraisement, and list of claims, as
applicable, and show cause for the failure to timely file.
(c) If the personal representative does not file the
inventory, appraisement, and list of claims or affidavit in lieu of
the inventory, appraisement, and list of claims, as applicable,
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 1.40. 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 1.41. Subsections (b), (c), and (d), Section 408,
Texas Probate Code, are amended 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.
(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 1.42. 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 2.06. Section 53.104, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 53.104. APPOINTMENT OF ATTORNEYS AD LITEM. (a) Except
as provided by Section 202.009(b), the judge of a probate court may
appoint an attorney ad litem in any probate proceeding to represent
the interests of:
(1) a person who has a legal disability;
(2) a nonresident;
(3) an unborn or unascertained person; [or]
(4) 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
362.011(b).
(b) Subject to Subsection (c), an [An] attorney ad litem
appointed under this section is entitled to reasonable compensation
for services provided in the amount set by the court. The court
shall:
(1) tax the compensation[, 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), 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) must require the attorney ad litem to conduct a
search for the person. Compensation paid under Subsection (b) to
the attorney ad litem may not exceed 10 percent of the amount on
deposit in the account described by Subsection (a)(5) 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 551.001.
SECTION 2.21. Subchapter A, Chapter 202, Estates Code, as
effective January 1, 2014, is amended by adding Section 202.0025 to
read as follows:
Sec. 202.0025. ACTION BROUGHT AFTER DECEDENT'S DEATH.
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 2.24. Sections 204.151 and 204.152, Estates Code,
as effective January 1, 2014, are amended to read as follows:
Sec. 204.151. APPLICABILITY OF SUBCHAPTER. This subchapter
applies in a proceeding to declare heirship of a decedent only with
respect to an individual who[:
[(1) petitions the court for a determination of right
of inheritance as authorized by Section 201.052(c); and
[(2)] claims[:
[(A)] to be a biological child of the decedent or
claims[, but with respect to whom a parent-child relationship with
the decedent was not established as provided by Section 160.201,
Family Code; or
[(B)] to inherit through a biological child of
the decedent[, if a parent-child relationship between the
individual through whom the inheritance is claimed and the decedent
was not established as provided by Section 160.201, Family Code].
Sec. 204.152. PRESUMPTION; [REQUIRED FINDINGS IN ABSENCE
OF] REBUTTAL [EVIDENCE]. The presumption under Section 160.505,
Family Code, that applies in establishing a parent-child
relationship also applies in determining heirship in the probate
court using the results of genetic testing ordered with respect to
an individual described by Section 204.151, and the presumption may
be rebutted in the same manner provided by Section 160.505, Family
Code. [Unless the results of genetic testing of another individual
who is an heir of the decedent who is the subject of a proceeding to
declare heirship to which this subchapter applies are admitted as
rebuttal evidence, the court shall find that the individual
described by Section 204.151:
[(1) is an heir of the decedent, if the results of
genetic testing ordered under Subchapter B identify a tested
individual who is an heir of the decedent as the ancestor of the
individual described by Section 204.151; or
[(2) is not an heir of the decedent, if the results of
genetic testing ordered under Subchapter B exclude a tested
individual who is an heir of the decedent as the ancestor of the
individual described by Section 204.151.]
SECTION 2.37. Subsection (c), Section 304.001, Estates
Code, as effective January 1, 2014, is amended to read as follows:
(c) If persons [applicants for letters testamentary or of
administration] are equally entitled to letters testamentary or of
administration [the letters], the court:
(1) shall grant the letters to the person [applicant]
who, in the judgment of the court, is most likely to administer the
estate advantageously; or
(2) may grant the letters to two or more of those
persons [applicants].
SECTION 2.57. Section 362.005, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 362.005. CITATION AND NOTICE ON PRESENTATION OF
ACCOUNT. (a) On the presentation of an account for final settlement
by a temporary or permanent personal representative, the county
clerk shall issue citation to the persons and in the manner provided
by Subsection (b) [Subsections (c) and (d)].
(b) Citation issued under Subsection (a) must:
(1) contain:
(A) [(1)] a statement that an account for final
settlement has been presented;
(B) [(2)] the time and place the court will
consider the account; [and]
(C) [(3)] a statement requiring the person cited
to appear and contest the account, if the person wishes to contest
the account; and
(D) a copy of the account for final settlement;
and
(2) be given[.
[(c) The personal representative shall give notice] to each
heir or beneficiary of the decedent by certified mail, return
receipt requested, unless the court by written order directs
another method of service [type of notice] to be given[. The notice
must include a copy of the account for final settlement].
(c) [(d)] The court by written order shall require
additional notice if the court considers the additional notice
necessary.
(d) [(e)] The court may allow the waiver of citation
[notice] of an account for final settlement in a proceeding
concerning a decedent's estate.
SECTION 2.58. Section 362.011, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 362.011. PARTITION AND DISTRIBUTION OF ESTATE; DEPOSIT
IN COURT'S REGISTRY. (a) If, on final settlement of an estate, any
of the estate remains in the personal representative's possession,
the court shall order that a partition and distribution be made
among the persons entitled to receive that part of the estate.
(b) The court shall order the personal 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.
SECTION 2.60. Subsection (a), Section 551.001, Estates
Code, as effective January 1, 2014, is amended to read as follows:
(a) The court, by written order, shall require the executor
or administrator of an estate to pay to the comptroller as provided
by this subchapter the share of that estate of a person entitled to
that share who does not demand the share, including any portion
deposited in an account in the court's registry under Section
362.011(b), from the executor or administrator within six months
after the date of, as applicable:
(1) a court order approving the report of the
commissioners of partition made under Section 360.154; or
(2) the settlement of the final account of the
executor or administrator.
Explanation: The addition is necessary to add provisions
relating to attorneys ad litem, proceedings to declare heirship,
granting of letters testamentary or of administration, filing of
inventories, appraisements, and lists of claims, citation and
notice on presentation of accounts for final settlement,
distribution of remaining estate property and discharge of
representatives on final settlement of estates, and estates to be
paid into the state treasury.
(2) House Rule 13, Sections 9(a)(1) and (4), are suspended
to permit the committee to change text which is not in disagreement
and to add text on a matter which is not included in either the house
or senate version of the bill in proposed SECTION 1.11 of the bill,
in amended Section 48, Texas Probate Code, to read as follows:
SECTION 1.11. Section 48, Texas Probate Code, is amended by
amending Subsection (a) and 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.
Explanation: The change is necessary to specify when a
proceeding to declare heirship may be brought.
(3) House Rule 13, Sections 9(a)(1), (3), and (4), are
suspended to permit the committee to change text which is not in
disagreement, to add text on a matter which is not in disagreement,
and to add text on a matter which is not included in either the house
or senate version of the bill in proposed SECTION 1.12 of the bill,
in amended Subsection (a), Section 49, Texas Probate Code, to read
as follows:
SECTION 1.12. Subsection (a), Section 49, Texas Probate
Code, is amended to read as follows:
(a) Such proceedings may be instituted and maintained under
a circumstance specified in Section 48(a) of this code [in any of
the instances enumerated above] by the qualified personal
representative of the estate of such decedent, by a party seeking
the appointment of an independent administrator under Section 145
of this code, by the trustee of a trust holding assets for the
benefit of the 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
or in the trust, as applicable;
(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 or held in trust
for the benefit of the decedent, as applicable; and
(8) an explanation for the omission of any of the
foregoing information that is omitted from the application.
Explanation: The change is necessary to authorize persons
claiming to be unsecured creditors to institute proceedings to
declare heirship.
(4) House Rule 13, Sections 9(a)(1), (2), and (4), are
suspended to permit the committee to change text which is not in
disagreement, omit text which is not in disagreement, and add text
on a matter which is not included in either the house or senate
version of the bill in proposed SECTION 1.28 of the bill, in amended
Section 149C, Texas Probate Code, to read as follows:
SECTION 1.28. Section 149C, Texas Probate Code, is amended
by amending Subsection (a) and adding Subsections (a-1) and (a-2)
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, either an inventory of the property of the
estate and list of claims that have come to the independent
executor's knowledge or an affidavit in lieu of the inventory,
appraisement, and list of claims;
(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 incapable of [legally incapacitated from] properly
performing the independent executor's fiduciary duties; or
(7) the independent executor becomes incapable of
properly performing the independent executor's fiduciary duties
due to a material conflict of interest.
(a-1) The court, on its own motion or on the motion of any
interested person, and after the independent executor has been
cited by certified mail, return receipt requested, to answer at a
time and place stated in the citation, may remove an independent
executor who is appointed under the provisions of this code if the
independent executor:
(1) subject to Subsection (a-2)(1) of this section,
fails to qualify in the manner and period required by law;
(2) subject to Subsection (a-2)(2) of this section,
fails to return not later than the 90th day after the date the
independent executor qualifies an inventory of the estate property
and a list of claims that have come to the independent executor's
knowledge or an affidavit in lieu of the inventory, appraisement,
and list of claims, unless the period is extended by court order;
(3) cannot be served with notices or other processes
because the:
(A) independent executor's location is unknown;
(B) independent executor is eluding service; or
(C) independent executor is a nonresident of this
state who does not have a resident agent to accept service of
process in a probate proceeding or other action relating to the
estate; or
(4) subject to Subsection (a-2)(3) of this section,
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.
(a-2) The court may remove an independent executor:
(1) under Subsection (a-1)(1) of this section only if
the independent executor fails to qualify on or before the 30th day
after the date the court sends a notice by certified mail, return
receipt requested, to the independent executor's last known address
and to the last known address of the independent executor's
attorney, notifying the independent executor and attorney of the
court's intent to remove the independent executor for failure to
qualify in the manner and period required by law;
(2) under Subsection (a-1)(2) of this section only if
the independent executor fails to file an inventory and list of
claims or an affidavit in lieu of the inventory, appraisement, and
list of claims as required by law on or before the 30th day after the
date the court sends a notice by certified mail, return receipt
requested, to the independent executor's last known address and to
the last known address of the independent executor's attorney,
notifying the independent executor and attorney of the court's
intent to remove the independent executor for failure to file the
inventory and list of claims or affidavit; and
(3) under Subsection (a-1)(4) of this section only on
presentation of clear and convincing evidence given under oath of
the misapplication, embezzlement, or removal from this state of
property as described by that subdivision.
Explanation: The change is necessary to make various
revisions to the procedures for removal of independent executors.
(5) House Rule 13, Sections 9(a)(1) and (4), are suspended
to permit the committee to change text which is not in disagreement
and to add text on a matter which is not included in either the house
or senate version of the bill in proposed SECTION 1.49 of the bill,
in Subsection (a) of that section, to read as follows:
(a) Subsection (c), Section 48, Subsection (c), Section
53C, Section 70, and Subsection (f), Section 251, Texas Probate
Code, are repealed.
Explanation: The change is necessary to add a repeal of
Subsection (c), Section 53C, Texas Probate Code.
(6) House Rule 13, Section 9(a)(4), is suspended to permit
the committee to add text on a matter which is not included in
either the house or senate version of the bill in proposed SECTION
1.50 of the bill to read as follows:
(i) Sections 34A, 407, 408, and 427, Texas Probate Code, as
amended by this article, and Section 254, Texas Probate Code, as
added by this article, apply to the estate of a decedent that is
pending or commenced on or after September 1, 2011, regardless of
the date of the decedent's death.
(j) The changes in law made by this article to Section 77,
Texas Probate Code, apply only to an application for the grant of
letters testamentary or of administration of a decedent's estate
filed on or after September 1, 2011. An application for the grant
of letters testamentary or of administration of a decedent's estate
filed before that date is governed by the law in effect on the date
the application was filed, and the former law is continued in effect
for that purpose.
(k) The changes in law made by this article to Subsection
(a), Section 83, Texas Probate Code, apply only to an application
for the probate of a will or administration of the estate of a
decedent that is pending or filed on or after September 1, 2011.
(l) The changes in law made by this article to Subsections
(a) and (b), Section 53C, Texas Probate Code, apply only to a
proceeding to declare heirship commenced on or after September 1,
2011. A proceeding to declare heirship commenced before that date
is governed by the law in effect on the date the proceeding was
commenced, and the former law is continued in effect for that
purpose.
Explanation: The change is necessary to add transition
provisions for sections of the Texas Probate Code that are amended
in the bill.
(7) House Rule 13, Sections 9(a)(1), (3), and (4), are
suspended to permit the committee to change text which is not in
disagreement, to add text on a matter which is not in disagreement,
and to add text on a matter which is not included in either the house
or senate version of the bill in proposed SECTION 2.22 of the bill,
in amended Section 202.004, Estates Code, as effective January 1,
2014, to read as follows:
SECTION 2.22. Section 202.004, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 202.004. PERSONS WHO MAY COMMENCE PROCEEDING TO
DECLARE HEIRSHIP. A proceeding to declare heirship of a decedent
may be commenced and maintained under a circumstance specified by
Section 202.002 by:
(1) the personal representative of the decedent's
estate;
(2) a person claiming to be a secured or unsecured
creditor or the owner of all or part of the decedent's estate; [or]
(3) if the decedent was a ward with respect to whom a
guardian of the estate had been appointed, the guardian of the
estate, provided that the proceeding is commenced and maintained in
the probate court in which the proceedings for the guardianship of
the estate were pending at the time of the decedent's death;
(4) a party seeking the appointment of an independent
administrator under Section 401.003; or
(5) the trustee of a trust holding assets for the
benefit of a decedent.
Explanation: The change is necessary to authorize persons
claiming to be unsecured creditors to institute proceedings to
declare heirship.
(8) House Rule 13, Sections 9(a)(1) and (4), are suspended
to permit the committee to change text which is not in disagreement
and to add text on a matter which is not included in either the house
or senate version of the bill in proposed SECTION 2.47 of the bill,
in amended Subchapter B, Chapter 309, Estates Code, as effective
January 1, 2014, to read as follows:
SECTION 2.47. Subchapter B, Chapter 309, Estates Code, as
effective January 1, 2014, is amended by adding Sections 309.056
and 309.057 to read as follows:
. . .
Sec. 309.057. PENALTY FOR FAILURE TO TIMELY FILE INVENTORY,
APPRAISEMENT, AND LIST OF CLAIMS OR AFFIDAVIT IN LIEU OF. (a) This
section applies only to a personal representative, including an
independent executor or administrator, who does not file an
inventory, appraisement, and list of claims or affidavit in lieu of
the inventory, appraisement, and list of claims, as applicable,
within the period prescribed by Section 309.051 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 or affidavit in
lieu of the inventory, appraisement, and list of claims, as
applicable, and show cause for the failure to timely file.
(c) If the personal representative does not file the
inventory, appraisement, and list of claims or affidavit in lieu of
the inventory, appraisement, and list of claims, as applicable,
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.
Explanation: The change is necessary to provide a penalty
against personal representatives of decedents' estates for failing
to timely file an inventory, appraisement, and list of claims or an
affidavit in lieu of the inventory, appraisement, and list of
claims.
(9) House Rule 13, Sections 9(a)(1), (2), and (3), are
suspended to permit the committee to change and omit text which is
not in disagreement and to add text on a matter which is not in
disagreement in proposed SECTION 2.49 of the bill, in Section
352.004, Estates Code, as effective January 1, 2014, to read as
follows:
SECTION 2.49. Section 352.004, Estates Code, as effective
January 1, 2014, is amended to read as follows:
Sec. 352.004. DENIAL OF COMPENSATION. The court may, on
application of an interested person or on the court's own motion,
wholly or partly deny a commission allowed by this subchapter if:
(1) the court finds that the executor or administrator
has not taken care of and managed estate property prudently; or
(2) the executor or administrator has been removed
under Section 404.003 [149C] or Subchapter B, Chapter 361.
Explanation: This change is necessary to make a conforming
change to a cross-reference in the Estates Code.
(10) House Rule 13, Section 9(a)(4), is suspended to permit
the committee to add text on a matter which is not included in
either the house or senate version of the bill in proposed SECTION
2.59 of the bill, in added Chapter 404, Estates Code, as effective
January 1, 2014, to read as follows:
Sec. 404.003. REMOVAL OF INDEPENDENT EXECUTOR. (a) The
probate court, 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 90
days after qualification, unless such time is extended by order of
the court, either an inventory of the property of the estate and
list of claims that have come to the independent executor's
knowledge or an affidavit in lieu of the inventory, appraisement,
and list of claims;
(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 308.004;
(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;
(6) the independent executor becomes an incapacitated
person, or is sentenced to the penitentiary, or from any other cause
becomes incapable of properly performing the independent
executor's fiduciary duties; or
(7) the independent executor becomes incapable of
properly performing the independent executor's fiduciary duties
due to a material conflict of interest.
(b) The probate court, on its own motion or on the motion of
any interested person, and after the independent executor has been
cited by certified mail, return receipt requested, to answer at a
time and place stated in the citation, may remove an independent
executor who is appointed under the provisions of this code if the
independent executor:
(1) subject to Subsection (c)(1), fails to qualify in
the manner and period required by law;
(2) subject to Subsection (c)(2), fails to return not
later than the 90th day after the date the independent executor
qualifies an inventory of the estate property and a list of claims
that have come to the independent executor's knowledge or an
affidavit in lieu of the inventory, appraisement, and list of
claims, unless the period is extended by court order;
(3) cannot be served with notices or other processes
because the:
(A) independent executor's location is unknown;
(B) independent executor is eluding service; or
(C) independent executor is a nonresident of this
state who does not have a resident agent to accept service of
process in a probate proceeding or other action relating to the
estate; or
(4) subject to Subsection (c)(3), 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.
(c) The probate court may remove an independent executor:
(1) under Subsection (b)(1) only if the independent
executor fails to qualify on or before the 30th day after the date
the court sends a notice by certified mail, return receipt
requested, to the independent executor's last known address and to
the last known address of the independent executor's attorney,
notifying the independent executor and attorney of the court's
intent to remove the independent executor for failure to qualify in
the manner and period required by law;
(2) under Subsection (b)(2) only if the independent
executor fails to file an inventory and list of claims or an
affidavit in lieu of the inventory, appraisement, and list of
claims as required by law on or before the 30th day after the date
the court sends a notice by certified mail, return receipt
requested, to the independent executor's last known address and to
the last known address of the independent executor's attorney,
notifying the independent executor and attorney of the court's
intent to remove the independent executor for failure to file the
inventory and list of claims or affidavit; and
(3) under Subsection (b)(4) only on presentation of
clear and convincing evidence given under oath of the
misapplication, embezzlement, or removal from this state of
property as described by that subdivision.
(d) 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 404.005.
(e) An independent executor who defends an action for the
independent executor's removal in good faith, whether successful or
not, shall be allowed out of the estate the independent executor's
necessary expenses and disbursements, including reasonable
attorney's fees, in the removal proceedings.
(f) Costs and expenses incurred by the party seeking removal
that are incident to removal of an independent executor appointed
without bond, including reasonable attorney's fees and expenses,
may be paid out of the estate.
Explanation: The change is necessary to make various
revisions to the procedures for removal of independent executors.
(11) House Rule 13, Sections 9(a)(1), (2), and (4), are
suspended to permit the committee to change text which is not in
disagreement, omit text which is not in disagreement, and add text
on a matter which is not included in either the house or senate
version of the bill in proposed SECTION 2.61 of the bill, in
Subsections (a) and (b) of that section, to read as follows:
(a) Sections 202.003 and 255.201, Estates Code, as
effective January 1, 2014, are repealed.
(b) The following sections of the Texas Probate Code are
repealed:
(1) Sections 4D, 4H, 15, 34A, 37A, 48(a), 49, 53C(a)
and (b), 59, 64, 67, 77, 81(a), 83(a), 84, 89A(a), 128A, 143, 227,
250, 256, 260, 271(a) and (b), 286, 293, 385(a), 407, 408(b), (c),
and (d), 427, 436, 439, 452, 471, 472, and 473, as amended by
Article 1 of this Act; and
(2) Sections 6A, 6B, 6C, 6D, 8A, 8B, 48(d), 145A, 145B,
145C, and 254, as added by Article 1 of this Act.
Explanation: The change is necessary to correct the repeal of
a provision of the Estates Code and to repeal, when the Estates Code
takes effect, certain provisions of the Texas Probate Code that are
amended or added in Article 1 of the bill.