By: Rodriguez S.R. No. 1254
SENATE RESOLUTION
BE IT RESOLVED by the Senate of the State of Texas, 82nd
Legislature, Regular Session, 2011, That Senate Rule 12.03 be
suspended in part as provided by Senate Rule 12.08 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) Senate Rule 12.03(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) Senate Rules 12.03(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) Senate Rules 12.03(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) Senate Rules 12.03(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) Senate Rules 12.03(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) Senate Rule 12.03(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) Senate Rules 12.03(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) Senate Rules 12.03(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) Senate Rules 12.03(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) Senate Rule 12.03(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) Senate Rules 12.03(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.
_______________________________
President of the Senate
I hereby certify that the
above Resolution was adopted by
the Senate on May 29, 2011, by
the
_______________________________
Secretary of the Senate