84R12448 KFF-F
By: Wray H.B. No. 2418
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 113.004(4), Estates Code, is amended to
read as follows:
(4) "P.O.D. account," including an account designated
as a transfer on death or T.O.D. account, means an account payable
on request to:
(A) one person during the person's lifetime and,
on the person's death, to one or more P.O.D. payees; or
(B) one or more persons during their lifetimes
and, on the death of all of those persons, to one or more P.O.D.
payees.
SECTION 2. Section 113.152, Estates Code, is amended by
adding Subsection (c) to read as follows:
(c) A guardian of the estate or an attorney in fact or agent
of an original payee may sign a written agreement described by
Subsection (a) on behalf of the original payee.
SECTION 3. Section 123.001, Estates Code, is amended to
read as follows:
Sec. 123.001. WILL PROVISIONS MADE BEFORE DISSOLUTION OF
MARRIAGE. (a) In this section:
(1) "Irrevocable trust" means a trust:
(A) for which the trust instrument was executed
before the dissolution of a testator's marriage; and
(B) that the testator was not solely empowered by
law or by the trust instrument to revoke.
(2) "Relative" [, "relative"] means an individual
related to another individual by:
(A) [(1)] consanguinity, as determined under
Section 573.022, Government Code; or
(B) [(2)] affinity, as determined under Section
573.024, Government Code.
(b) If, after the testator makes a will, the testator's
marriage is dissolved by divorce, annulment, or a declaration that
the marriage is void, unless the will expressly provides otherwise:
(1) all provisions in the will, including all
fiduciary appointments, shall be read as if the former spouse and
each relative of the former spouse who is not a relative of the
testator had failed to survive the testator; and
(2) all provisions in the will disposing of property
to an irrevocable trust in which a former spouse or a relative of a
former spouse who is not a relative of the testator is a beneficiary
or is nominated to serve as trustee or in another fiduciary capacity
or that confers a general or special power of appointment on a
former spouse or a relative of a former spouse who is not a relative
of the testator shall be read to instead dispose of the property to
a trust the provisions of which are identical to the irrevocable
trust, except any provision in the irrevocable trust:
(A) conferring a beneficial interest or a general
or special power of appointment to the former spouse or a relative
of the former spouse who is not a relative of the testator shall be
treated as if the former spouse and each relative of the former
spouse who is not a relative of the testator had disclaimed the
interest granted in the provision; and
(B) nominating the former spouse or a relative of
the former spouse who is not a relative of the testator to serve as
trustee or in another fiduciary capacity shall be treated as if the
former spouse and each relative of the former spouse who is not a
relative of the testator had died immediately before the
dissolution of the marriage [, unless the will expressly provides
otherwise].
(c) Subsection (b)(2) does not apply if one of the following
provides otherwise:
(1) a court order; or
(2) an express provision of a contract relating to the
division of the marital estate entered into between the testator
and the testator's former spouse before, during, or after the
marriage.
SECTION 4. Section 123.052(a), Estates Code, is amended to
read as follows:
(a) The dissolution of the marriage revokes a provision in a
trust instrument that was executed by a divorced individual before
the divorced individual's marriage was dissolved and that:
(1) is a revocable disposition or appointment of
property made to the divorced individual's former spouse or any
relative of the former spouse who is not a relative of the divorced
individual;
(2) revocably confers a general or special power of
appointment on the divorced individual's former spouse or any
relative of the former spouse who is not a relative of the divorced
individual; or
(3) revocably nominates the divorced individual's
former spouse or any relative of the former spouse who is not a
relative of the divorced individual to serve:
(A) as a personal representative, trustee,
conservator, agent, or guardian; or
(B) in another fiduciary or representative
capacity.
SECTION 5. Chapter 123, Estates Code, is amended by adding
Subchapter D to read as follows:
SUBCHAPTER D. EFFECT OF DISSOLUTION OF MARRIAGE ON CERTAIN
MULTIPLE-PARTY ACCOUNTS
Sec. 123.151. DESIGNATION OF FORMER SPOUSE OR RELATIVE OF
FORMER SPOUSE ON CERTAIN MULTIPLE-PARTY ACCOUNTS. (a) In this
section:
(1) "Beneficiary," "multiple-party account," "P.O.D.
account," and "P.O.D. payee" have the meanings assigned by Chapter
113.
(2) "Public retirement system" has the meaning
assigned by Section 802.001, Government Code.
(3) "Relative" has the meaning assigned by Section
123.051.
(b) If, after a decedent designates a spouse or a relative
of a spouse who is not a relative of the decedent as a P.O.D. payee
or beneficiary, including alternative P.O.D. payee or beneficiary,
on a P.O.D. account or other multiple-party account, the decedent's
marriage is dissolved by divorce, annulment, or a declaration that
the marriage is void, the designation provision on the account is
not effective as to the former spouse or the former spouse's
relative unless:
(1) the court decree dissolving the marriage
designates the former spouse or the former spouse's relative as the
P.O.D. payee or beneficiary;
(2) the decedent redesignated the former spouse or the
former spouse's relative as the P.O.D payee or beneficiary after
the marriage was dissolved; or
(3) the former spouse or the former spouse's relative
is designated to receive the proceeds or benefits in trust for, on
behalf of, or for the benefit of a child or dependent of either the
decedent or the former spouse.
(c) If a designation is not effective under Subsection (b),
a multiple-party account is payable to the named alternative P.O.D.
payee or beneficiary or, if an alternative P.O.D. payee or
beneficiary is not named, to the estate of the decedent.
(d) A financial institution or other person obligated to pay
an account described by Subsection (b) that pays the account to the
former spouse or the former spouse's relative as P.O.D. payee or
beneficiary under a designation that is not effective under
Subsection (b) is liable for payment of the account to the person
provided by Subsection (c) only if:
(1) before payment of the account to the designated
P.O.D. payee or beneficiary, the payor receives written notice at
the home office or principal office of the payor from an interested
person that the designation of the P.O.D. payee or beneficiary is
not effective under Subsection (b); and
(2) the payor has not interpleaded the account funds
into the registry of a court of competent jurisdiction in
accordance with the Texas Rules of Civil Procedure.
(e) This section does not affect the right of a former
spouse to assert an ownership interest in an undivided
multiple-party account described by Subsection (b).
(f) This section does not apply to the disposition of a
beneficial interest in a retirement benefit or other financial plan
of a public retirement system.
SECTION 6. Section 201.051, Estates Code, is amended to
read as follows:
Sec. 201.051. MATERNAL INHERITANCE. (a) For purposes of
inheritance, a child is the child of the child's biological or
adopted mother, and the child and the child's issue shall inherit
from the child's mother and the child's maternal kindred, both
descendants, ascendants, and collateral kindred in all degrees, and
they may inherit from the child and the child's issue. However, if a
child has intended parents, as defined by Section 160.102, Family
Code, under a gestational agreement validated under Subchapter I,
Chapter 160, Family Code, the child is the child of the intended
mother and not the biological mother or gestational mother unless
the biological mother is also the intended mother.
(b) This section does not permit inheritance by a child for
whom no right of inheritance accrues under Section 201.056 or by the
child's issue.
SECTION 7. Section 201.052, Estates Code, is amended by
adding Subsection (f) to read as follows:
(f) This section does not permit inheritance by a child for
whom no right of inheritance accrues under Section 201.056 or by the
child's issue.
SECTION 8. Section 201.056, Estates Code, is amended to
read as follows:
Sec. 201.056. PERSONS NOT IN BEING. No right of inheritance
accrues to any person [other than to a child or lineal descendant of
an intestate,] unless the person is born before, or is in gestation
at, [in being and capable in law to take as an heir at] the time of
the intestate's death and survives for at least 120 hours. A person
is:
(1) considered to be in gestation at the time of the
intestate's death if insemination or implantation occurs at or
before the time of the intestate's death; and
(2) presumed to be in gestation at the time of the
intestate's death if the person is born before the 301st day after
the date of the intestate's death.
SECTION 9. Section 202.005, Estates Code, is amended to
read as follows:
Sec. 202.005. APPLICATION FOR PROCEEDING TO DECLARE
HEIRSHIP. A person authorized by Section 202.004 to commence a
proceeding to declare heirship must file an application in a court
specified by Section 33.004 to commence the proceeding. The
application must state:
(1) the decedent's name and date [time] and place of
death;
(2) the names and physical addresses where service can
be had [residences] of the decedent's heirs, the relationship of
each heir to the decedent, whether each heir is an adult or minor,
and the true interest of the applicant and each of the heirs in the
decedent's estate or in the trust, as applicable;
(3) if the date [time] or place of the decedent's death
or the name or physical addresses where service can be had
[residence] of an heir is not definitely known to the applicant, all
the material facts and circumstances with respect to which the
applicant has knowledge and information that might reasonably tend
to show the date [time] or place of the decedent's death or the name
or physical addresses where service can be had [residence] of the
heir;
(4) that all children born to or adopted by the
decedent have been listed;
(5) that each of the decedent's marriages has been
listed with:
(A) the date of the marriage;
(B) the name of the spouse;
(C) the date and place of termination if the
marriage was terminated; and
(D) other facts to show whether a spouse has had
an interest in the decedent's property;
(6) whether the decedent died testate and, if so, what
disposition has been made of the will;
(7) a general description of all property belonging to
the decedent's estate or held in trust for the benefit of the
decedent, as applicable; and
(8) an explanation for the omission from the
application of any of the information required by this section.
SECTION 10. Section 202.055, Estates Code, is amended to
read as follows:
Sec. 202.055. SERVICE OF CITATION ON CERTAIN PERSONS NOT
REQUIRED. A party to a proceeding to declare heirship who executed
the application filed under Section 202.005, entered an appearance
in the proceeding, or waived citation under this subchapter is not
required to be served by any method.
SECTION 11. Section 202.056, Estates Code, is amended to
read as follows:
Sec. 202.056. WAIVER OF SERVICE OF CITATION. (a) Except as
provided by Subsection (b)(2), a distributee may waive citation
required by this subchapter to be served on the distributee.
(b) A parent, managing conservator, guardian, attorney ad
litem, or guardian ad litem of a minor distributee who:
(1) is younger than 12 years of age may waive citation
required by this subchapter to be served on the distributee; and
(2) is 12 years of age or older may not waive citation
required by this subchapter to be served on the distributee.
SECTION 12. Section 202.201(a), Estates Code, is amended to
read as follows:
(a) The judgment in a proceeding to declare heirship must
state:
(1) the names [and places of residence] of the heirs of
the decedent who is the subject of the proceeding; and
(2) the heirs' respective shares and interests in the
decedent's property.
SECTION 13. Subchapter B, Chapter 251, Estates Code, is
amended by adding Section 251.053 to read as follows:
Sec. 251.053. EXCEPTION FOR FOREIGN AND CERTAIN OTHER
WILLS. Section 251.051 does not apply to a written will executed in
compliance with:
(1) the law of the state or foreign country where the
will was executed, as that law existed at the time of the will's
execution; or
(2) the law of the state or foreign country where the
testator was domiciled or had a place of residence, as that law
existed at the time of the will's execution or at the time of the
testator's death.
SECTION 14. Section 251.1045(a), Estates Code, is amended
to read as follows:
(a) As an alternative to the self-proving of a will by the
affidavits of the testator and the attesting witnesses as provided
by Section 251.104, a will may be simultaneously executed,
attested, and made self-proved before an officer authorized to
administer oaths, and the testimony of the witnesses in the probate
of the will may be made unnecessary, with the inclusion in the will
of the following in form and contents substantially as follows:
I, ______________________, as testator, after being duly
sworn, declare to the undersigned witnesses and to the undersigned
authority that this instrument is my will, that I [have] willingly
make [made] and execute [executed] it in the presence of the
undersigned witnesses, all of whom are [were] present at the same
time, as my free act and deed, and that I request [have requested]
each of the undersigned witnesses to sign this will in my presence
and in the presence of each other. I now sign this will in the
presence of the attesting witnesses and the undersigned authority
on this ______ day of __________, 20________________.
__________________________
Testator
The undersigned, __________ and __________, each being at
least fourteen years of age, after being duly sworn, declare to the
testator and to the undersigned authority that the testator
declared to us that this instrument is the testator's will and that
the testator requested us to act as witnesses to the testator's will
and signature. The testator then signed this will in our presence,
all of us being present at the same time. The testator is eighteen
years of age or over (or being under such age, is or has been
lawfully married, or is a member of the armed forces of the United
States or of an auxiliary of the armed forces of the United States
or of the United States Maritime Service), and we believe the
testator to be of sound mind. We now sign our names as attesting
witnesses in the presence of the testator, each other, and the
undersigned authority on this __________ day of __________,
20______________.
___________________________
Witness
___________________________
Witness
Subscribed and sworn to before me by the said _________,
testator, and by the said _____________ and ______________,
witnesses, this _____ day of __________, 20____________.
(SEAL)
(Signed)
(Official Capacity of Officer)
SECTION 15. Sections 253.001(b) and (c), Estates Code, are
amended to read as follows:
(b) A court may not prohibit a person from:
(1) executing a new will;
(2) executing [or] a codicil to an existing will; or
(3) revoking an existing will or codicil in whole or in
part.
(c) Any portion of a court order that purports to prohibit a
person from engaging in an action described by Subsection (b)
[executing a new will or a codicil to an existing will] is void and
may be disregarded without penalty or sanction of any kind.
SECTION 16. Section 254.005, Estates Code, is amended to
read as follows:
Sec. 254.005. FORFEITURE CLAUSE. (a) A provision in a will
that would cause a forfeiture of or void a devise or provision in
favor of a person for bringing any court action, including
contesting a will, is enforceable unless in a court action
determining whether the forfeiture clause should be enforced, the
person who brought the action contrary to the forfeiture clause
establishes by a preponderance of the evidence that:
(1) just cause existed for bringing the action; and
(2) the action was brought and maintained in good
faith.
(b) This section is not intended to and does not repeal any
law recognizing that forfeiture clauses generally will not be
construed to prevent a beneficiary from seeking to compel a
fiduciary to perform the fiduciary's duties, seeking redress
against a fiduciary for a breach of the fiduciary's duties, or
seeking a judicial construction of a will or trust.
SECTION 17. Subchapter G, Chapter 255, Estates Code, is
amended by adding Section 255.304 to read as follows:
Sec. 255.304. APPLICABILITY OF SUBCHAPTER. This subchapter
is applicable only to wills executed on or after September 1, 2005.
SECTION 18. Chapter 255, Estates Code, is amended by adding
Subchapters I and J to read as follows:
SUBCHAPTER I. CLASS GIFTS
Sec. 255.401. POSTHUMOUS CLASS GIFT MEMBERSHIP. (a) A
right to take as a member of a class gift does not accrue to any
person unless the person is born before, or is in gestation at, the
time of the testator's death and survives for at least 120 hours. A
person is:
(1) considered to be in gestation at the time of the
testator's death if insemination or implantation occurs at or
before the time of the testator's death; and
(2) presumed to be in gestation at the time of the
testator's death if the person was born before the 301st day after
the date of the testator's death.
(b) A provision in the testator's will that is contrary to
this section prevails over this section.
SUBCHAPTER J. JUDICIAL MODIFICATION OR REFORMATION
OF WILLS
Sec. 255.451. CIRCUMSTANCES UNDER WHICH WILL MAY BE
MODIFIED OR REFORMED. (a) On the petition of a personal
representative, a court may order that the terms of the will be
modified or reformed, that the personal representative be directed
or permitted to perform acts that are not authorized or that are
prohibited by the terms of the will, or that the personal
representative be prohibited from performing acts that are required
by the terms of the will, if:
(1) modification of administrative, nondispositive
terms of the will is necessary or appropriate to prevent waste or
impairment of the estate's administration;
(2) the order is necessary or appropriate to achieve
the testator's tax objectives or to qualify a distributee for
government benefits and is not contrary to the testator's intent;
or
(3) the order is necessary to correct a scrivener's
error in the terms of the will, even if unambiguous, to conform with
the testator's intent.
(b) An order described in Subsection (a)(3) may be issued
only if the testator's intent is established by clear and
convincing evidence.
Sec. 255.452. JUDICIAL DISCRETION. The court shall
exercise the court's discretion to order a modification or
reformation under this subchapter in the manner that conforms as
nearly as possible to the probable intent of the testator.
Sec. 255.453. RETROACTIVE EFFECT. The court may direct
that an order described by this subchapter has retroactive effect.
Sec. 255.454. POWERS CUMULATIVE. This subchapter does not
limit a court's powers under other law, including the power to
modify, reform, or terminate a testamentary trust under Section
112.054, Property Code.
Sec. 255.455. DUTIES AND LIABILITY OF PERSONAL
REPRESENTATIVE UNDER SUBCHAPTER. (a) This subchapter does not
create or imply a duty for a personal representative to:
(1) petition a court for modification or reformation
of a will, to be directed or permitted to perform acts that are not
authorized or that are prohibited by the terms of the will, or to be
prohibited from performing acts that are required by the terms of
the will;
(2) inform devisees about the availability of relief
under this subchapter; or
(3) review the will or other evidence to determine
whether any action should be taken under this subchapter.
(b) A personal representative is not liable for failing to
file a petition under Section 255.451.
SECTION 19. Sections 256.003(a) and (b), Estates Code, are
amended to read as follows:
(a) Except as provided by Section 501.001 with respect to a
foreign will, a [A] will may not be admitted to probate after the
fourth anniversary of the testator's death unless it is shown by
proof that the applicant for the probate of the will was not in
default in failing to present the will for probate on or before the
fourth anniversary of the testator's death.
(b) Except as provided by Section 501.006 with respect to a
foreign will, letters [Letters] testamentary may not be issued if a
will is admitted to probate after the fourth anniversary of the
testator's death.
SECTION 20. Section 256.051(a), Estates Code, is amended
to read as follows:
(a) An executor named in a will, an independent
administrator designated by all of the distributees of the decedent
under Section 401.002(b), or an interested person may file an
application with the court for an order admitting a will to probate,
whether the will is:
(1) written or unwritten;
(2) in the applicant's possession or not;
(3) lost;
(4) destroyed; or
(5) outside of this state.
SECTION 21. Section 256.052(a), Estates Code, is amended to
read as follows:
(a) An application for the probate of a will must state and
aver the following to the extent each is known to the applicant or
can, with reasonable diligence, be ascertained by the applicant:
(1) each applicant's name and domicile;
(2) the testator's name, domicile, and, if known, age,
on the date of the testator's death;
(3) the fact, date [time], and place of the testator's
death;
(4) facts showing that the court with which the
application is filed has venue;
(5) that the testator owned property, including a
statement generally describing the property and the property's
probable value;
(6) the date of the will;
(7) the name, state of residence, and physical address
where service can be had of the executor named in the will or other
person to whom the applicant desires that letters be issued;
(8) the name of each subscribing witness to the will,
if any;
(9) whether one or more children born to or adopted by
the testator after the testator executed the will survived the
testator and, if so, the name of each of those children;
(10) whether a marriage of the testator was ever
dissolved after the will was made and, if so, when and from whom;
(11) whether the state, a governmental agency of the
state, or a charitable organization is named in the will as a
devisee; and
(12) that the executor named in the will, the
applicant, or another person to whom the applicant desires that
letters be issued is not disqualified by law from accepting the
letters.
SECTION 22. Section 256.054, Estates Code, is amended to
read as follows:
Sec. 256.054. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO
WILL IS PRODUCED. In addition to the requirements for an
application under Section 256.052, if an applicant for the probate
of a will cannot produce the will in court, the application must
state:
(1) the reason the will cannot be produced;
(2) the contents of the will, as far as known; and
(3) the name[, age, marital status,] and address, if
known, whether the person is an adult or minor, and the relationship
to the testator, if any, of:
(A) each devisee;
(B) each person who would inherit as an heir of
the testator in the absence of a valid will; and
(C) in the case of partial intestacy, each heir
of the testator.
SECTION 23. Sections 256.152(b) and (c), Estates Code, are
amended to read as follows:
(b) A will that is self-proved as provided by Subchapter C,
Chapter 251, that [or, if executed in another state or a foreign
country,] is self-proved in accordance with the law [laws] of
another [the] state or foreign country where the will was executed,
as that law existed at the time of the will's execution, or that is
self-proved in accordance with the law of another state or foreign
country where the testator was domiciled or had a place of
residence, as that law existed at the time of the will's execution
or the time of the testator's death, [of the testator's domicile at
the time of the execution] is not required to have any additional
proof that the will was executed with the formalities and
solemnities and under the circumstances required to make the will
valid.
(c) As an alternative to Subsection (b), a will [executed in
another state or a foreign country] is considered self-proved
without further evidence of the law of any [the other] state or
foreign country if:
(1) the will was executed in another state or a foreign
country or the testator was domiciled or had a place of residence in
another state or a foreign country at the time of the will's
execution or the time of the testator's death; and
(2) the will, or an affidavit of the testator and
attesting witnesses attached or annexed to the will, provides that:
(A) [(1)] the testator declared that the
testator signed the instrument as the testator's will, the testator
signed it willingly or willingly directed another to sign for the
testator, the testator executed the will as the testator's free and
voluntary act for the purposes expressed in the instrument, the
testator is of sound mind and under no constraint or undue
influence, and the testator is eighteen years of age or over or, if
under that age, was or had been lawfully married, or was then a
member of the armed forces of the United States, an auxiliary of the
armed forces of the United States, or the United States Maritime
Service; and
(B) [(2)] the witnesses declared that the
testator signed the instrument as the testator's will, the testator
signed it willingly or willingly directed another to sign for the
testator, each of the witnesses, in the presence and hearing of the
testator, signed the will as witness to the testator's signing, and
to the best of their knowledge the testator was of sound mind and
under no constraint or undue influence, and the testator was
eighteen years of age or over or, if under that age, was or had been
lawfully married, or was then a member of the armed forces of the
United States, an auxiliary of the armed forces of the United
States, or the United States Maritime Service.
SECTION 24. Section 257.051(a), Estates Code, is amended to
read as follows:
(a) An application for the probate of a will as a muniment of
title must state and aver the following to the extent each is known
to the applicant or can, with reasonable diligence, be ascertained
by the applicant:
(1) each applicant's name and domicile;
(2) the testator's name, domicile, and, if known, age,
on the date of the testator's death;
(3) the fact, date [time], and place of the testator's
death;
(4) facts showing that the court with which the
application is filed has venue;
(5) that the testator owned property, including a
statement generally describing the property and the property's
probable value;
(6) the date of the will;
(7) the name, state of [and] residence, and physical
address where service can be had of the [of:
[(A) any] executor named in the will;
(8) the name of [and
[(B)] each subscribing witness to the will, if
any;
(9) [(8)] whether one or more children born to or
adopted by the testator after the testator executed the will
survived the testator and, if so, the name of each of those
children;
(10) [(9)] that the testator's estate does not owe an
unpaid debt, other than any debt secured by a lien on real estate;
(11) [(10)] whether a marriage of the testator was
ever dissolved after the will was made and, if so, when and from
whom; and
(12) [(11)] whether the state, a governmental agency
of the state, or a charitable organization is named in the will as a
devisee.
SECTION 25. Section 257.053, Estates Code, is amended to
read as follows:
Sec. 257.053. ADDITIONAL APPLICATION REQUIREMENTS WHEN NO
WILL IS PRODUCED. In addition to the requirements for an
application under Section 257.051, if an applicant for the probate
of a will as a muniment of title cannot produce the will in court,
the application must state:
(1) the reason the will cannot be produced;
(2) the contents of the will, to the extent known; and
(3) the name[, age, marital status,] and address, if
known, whether the person is an adult or minor, and the relationship
to the testator, if any, of:
(A) each devisee;
(B) each person who would inherit as an heir of
the testator in the absence of a valid will; and
(C) in the case of partial intestacy, each heir
of the testator.
SECTION 26. Section 301.002(a), Estates Code, is amended to
read as follows:
(a) Except as provided by Subsection (b) and Section 501.006
with respect to a foreign will, an application for the grant of
letters testamentary or of administration of an estate must be
filed not later than the fourth anniversary of the decedent's
death.
SECTION 27. Section 301.051, Estates Code, is amended to
read as follows:
Sec. 301.051. ELIGIBLE APPLICANTS FOR LETTERS. An executor
named in a will, an independent administrator designated by all of
the distributees of the decedent under Section 401.002(b) or
401.003, or an interested person may file an application with the
court for:
(1) the appointment of the executor named in the will;
or
(2) the appointment of an administrator, if:
(A) there is a will, but:
(i) no executor is named in the will; or
(ii) the executor named in the will is
disqualified, refuses to serve, is dead, or resigns; or
(B) there is no will.
SECTION 28. Section 301.052, Estates Code, is amended to
read as follows:
Sec. 301.052. CONTENTS OF APPLICATION FOR LETTERS OF
ADMINISTRATION. An application for letters of administration when
no will is alleged to exist must state:
(1) the applicant's name, domicile, and, if any,
relationship to the decedent;
(2) the decedent's name and that the decedent died
intestate;
(3) the fact, date [time], and place of the decedent's
death;
(4) facts necessary to show that the court with which
the application is filed has venue;
(5) whether the decedent owned property and, if so,
include a statement of the property's probable value;
(6) the name[, age, marital status,] and address, if
known, whether the heir is an adult or minor, and the relationship
to the decedent of each of the decedent's heirs;
(7) if known by the applicant at the time the applicant
files the application, whether one or more children were born to or
adopted by the decedent and, if so, the name, birth date, and place
of birth of each child;
(8) if known by the applicant at the time the applicant
files the application, whether the decedent was ever divorced and,
if so, when and from whom;
(9) that a necessity exists for administration of the
decedent's estate and an allegation of the facts that show that
necessity; and
(10) that the applicant is not disqualified by law
from acting as administrator.
SECTION 29. Section 301.151, Estates Code, is amended to
read as follows:
Sec. 301.151. GENERAL PROOF REQUIREMENTS. An applicant for
the issuance of letters testamentary or of administration of an
estate must prove to the court's satisfaction that:
(1) the person whose estate is the subject of the
application is dead;
(2) except as provided by Section 501.006 with respect
to a foreign will, four years have not elapsed since the date of the
decedent's death and before the application;
(3) the court has jurisdiction and venue over the
estate;
(4) citation has been served and returned in the
manner and for the period required by this title; and
(5) the person for whom letters testamentary or of
administration are sought is entitled by law to the letters and is
not disqualified.
SECTION 30. Section 308.004(a), Estates Code, is amended to
read as follows:
(a) Not later than the 90th day after the date of an order
admitting a will to probate, the personal representative shall file
with the clerk of the court in which the decedent's estate is
pending a sworn affidavit of the representative or a certificate
signed by the representative's attorney stating:
(1) for each beneficiary to whom notice was required
to be given under this subchapter, the name [and address] of the
beneficiary to whom the representative gave the notice or, for a
beneficiary described by Section 308.002(b), the name [and address]
of the beneficiary and of the person to whom the notice was given;
(2) the name [and address] of each beneficiary to whom
notice was not required to be given under Section 308.002(c)(2),
(3), or (4);
(3) the name of each beneficiary whose identity or
address could not be ascertained despite the representative's
exercise of reasonable diligence; and
(4) any other information necessary to explain the
representative's inability to give the notice to or for any
beneficiary as required by this subchapter.
SECTION 31. Sections 309.001(a) and (c), Estates Code, are
amended to read as follows:
(a) At any time after letters testamentary or of
administration are granted, the court, for good cause, on the
court's own motion or on the motion of an interested person [party]
shall appoint at least one but not more than three disinterested
persons who are residents of the county in which the letters were
granted to appraise the estate property.
(c) If the court makes an appointment under Subsection (a)
[or (b)] and part of the estate is located in a county other than the
county in which the letters were granted, the court, if the court
considers necessary, may appoint at least one but not more than
three disinterested persons who are residents of the county in
which the relevant part of the estate is located to appraise the
estate property located in that county.
SECTION 32. Section 309.056, Estates Code, is amended by
amending Subsections (b) and (c) and adding Subsection (b-1) to
read as follows:
(b) Notwithstanding Sections 309.051 and 309.052, or any
contrary provision in a decedent's will that does not specifically
prohibit the filing of an affidavit described by this subsection,
if there are no unpaid debts, except for secured debts, taxes, and
administration expenses, at the time the inventory is due,
including any extensions, an independent executor may file with the
court clerk, in lieu of the inventory, appraisement, and list of
claims, an affidavit stating that all debts, except for secured
debts, taxes, and administration expenses, are paid and that all
beneficiaries other than those described by Subsection (b-1) have
received a verified, full, and detailed inventory and
appraisement. The affidavit in lieu of the inventory,
appraisement, and list of claims must be filed within the 90-day
period prescribed by Section 309.051(a), unless the court grants an
extension.
(b-1) Absent a written request by a beneficiary, an
independent executor is not required to provide a verified, full,
and detailed inventory and appraisement to a beneficiary who:
(1) is entitled to receive aggregate devises under the
will with an estimated value of $2,000 or less;
(2) has received all devises to which the beneficiary
is entitled under the will on or before the date an affidavit under
this section is filed; or
(3) has waived in writing the beneficiary's right to
receive a verified, full, and detailed inventory and appraisement.
(c) If the independent executor files an affidavit in lieu
of the inventory, appraisement, and list of claims as authorized
under Subsection (b):
(1) any person interested in the estate, including a
possible heir of the decedent, [or] a beneficiary under a prior will
of the decedent, or a beneficiary described by Subsection (b-1), is
entitled to receive a copy of the inventory, appraisement, and list
of claims from the independent executor on written request;
(2) the independent executor may provide a copy of the
inventory, appraisement, and list of claims to any person the
independent executor believes in good faith may be a person
interested in the estate without liability to the estate or its
beneficiaries; and
(3) a person interested in the estate may apply to the
court for an order compelling compliance with Subdivision (1), and
the court, in its discretion, may compel the independent executor
to provide a copy of the inventory, appraisement, and list of claims
to the interested person or may deny the application.
SECTION 33. Section 352.052(b), Estates Code, is amended to
read as follows:
(b) A person designated as a devisee in or beneficiary of a
will or an alleged will[, or as administrator with the will or
alleged will annexed,] who, for the purpose of having the will or
alleged will admitted to probate, defends the will or alleged will
or prosecutes any proceeding in good faith and with just cause,
whether or not successful, may be allowed out of the estate the
person's necessary expenses and disbursements in those
proceedings, including reasonable attorney's fees.
SECTION 34. Subchapter A, Chapter 353, Estates Code, is
amended by adding Section 353.002 to read as follows:
Sec. 353.002. DEFINITION. Notwithstanding Section 22.013,
in this chapter, "exempt property" means the following property in
a decedent's estate that is exempt from execution or forced sale by
the constitution or laws of this state, and any allowance paid
instead of that property:
(1) the homestead; and
(2) property described by Section 42.002(a), Property
Code.
SECTION 35. Sections 353.051(a) and (b), Estates Code, are
amended to read as follows:
(a) Unless an application and verified affidavit are filed
as provided by Subsection (b), immediately after the inventory,
appraisement, and list of claims of an estate are approved or after
the affidavit in lieu of the inventory, appraisement, and list of
claims is filed, the court by order shall set aside:
(1) the homestead for the use and benefit of the
decedent's surviving spouse and minor children; and
(2) all other exempt [estate] property [that is exempt
from execution or forced sale by the constitution and laws of this
state] for the use and benefit of the decedent's:
(A) surviving spouse and minor children;
(B) unmarried adult children remaining with the
decedent's family; and
(C) each other adult child who is incapacitated.
(b) Before the inventory, appraisement, and list of claims
of an estate are approved or, if applicable, before the affidavit in
lieu of the inventory, appraisement, and list of claims is filed:
(1) the decedent's surviving spouse or any other
person authorized to act on behalf of the decedent's minor children
may apply to the court to have exempt property, including the
homestead, set aside by filing an application and a verified
affidavit listing all the property that the applicant claims is
exempt for purposes of this chapter; and
(2) any of the decedent's unmarried adult children
remaining with the decedent's family, any other adult child of the
decedent who is incapacitated, or a person who is authorized to act
on behalf of the adult incapacitated child may apply to the court to
have all exempt property, other than the homestead, set aside by
filing an application and a verified affidavit listing all the
property, other than the homestead, that the applicant claims is
exempt for purposes of this chapter.
SECTION 36. Section 353.053(a), Estates Code, is amended to
read as follows:
(a) If all or any of the specific articles of exempt
property [from execution or forced sale by the constitution and
laws of this state] are not among the decedent's effects, the court
shall make, in lieu of the articles not among the effects, a
reasonable allowance to be paid to the decedent's surviving spouse
and children as provided by Section 353.054.
SECTION 37. Sections 353.153 and 353.154, Estates Code, are
amended to read as follows:
Sec. 353.153. TITLE TO PROPERTY OF INSOLVENT ESTATE. If on
final settlement an estate proves to be insolvent, the decedent's
surviving spouse and children have absolute title to all property
and allowances set aside or paid to them under this title. The
distributees are entitled to distribution of any remaining exempt
property held by the executor or administrator in the same manner as
other estate property. The property and allowances set aside or
paid to the decedent's surviving spouse or children, and any
remaining exempt property held by the executor or administrator,
may not be taken for any of the estate debts except as provided by
Section 353.155.
Sec. 353.154. CERTAIN PROPERTY NOT CONSIDERED IN
DETERMINING SOLVENCY. In determining whether an estate is solvent
or insolvent, the exempt property set aside for the decedent's
surviving spouse or children, any allowance made in lieu of that
exempt property, [and] the family allowance under Subchapter C, and
any remaining exempt property held by the executor or administrator
may not be estimated or considered as estate assets.
SECTION 38. Section 401.002, Estates Code, is amended to
read as follows:
Sec. 401.002. CREATION IN TESTATE ESTATE BY AGREEMENT. (a)
Except as provided in Section 401.001(b), if a decedent's will
names an executor but the will does not provide for independent
administration as provided in Section 401.001(a), all of the
distributees of the decedent may agree on the advisability of
having an independent administration and collectively designate in
the application for probate of the decedent's will, or in one or
more separate documents consenting to the application for probate
of the decedent's will, the executor named in the will to serve as
independent executor and request [in the application] that no other
action shall be had in the probate court in relation to the
settlement of the decedent's estate other than the probating and
recording of the decedent's will and the return of an inventory,
appraisement, and list of claims of the decedent's estate. In such
case the probate court shall enter an order granting independent
administration and appointing the person, firm, or corporation
designated by the distributees [in the application] as independent
executor, unless the court finds that it would not be in the best
interest of the estate to do so.
(b) Except as provided in Section 401.001(b), in situations
where no executor is named in the decedent's will, or in situations
where each executor named in the will is deceased or is disqualified
to serve as executor or indicates by affidavit filed with the
application for administration of the decedent's estate the
executor's inability or unwillingness to serve as executor, all of
the distributees of the decedent may agree on the advisability of
having an independent administration and collectively designate in
the application for probate of the decedent's will, or in one or
more separate documents consenting to the application for probate
of the decedent's will, a qualified person, firm, or corporation to
serve as independent administrator and request [in the application]
that no other action shall be had in the probate court in relation
to the settlement of the decedent's estate other than the probating
and recording of the decedent's will and the return of an inventory,
appraisement, and list of claims of the decedent's estate. In such
case the probate court shall enter an order granting independent
administration and appointing the person, firm, or corporation
designated by the distributees [in the application] as independent
administrator, unless the court finds that it would not be in the
best interest of the estate to do so.
SECTION 39. Section 401.003(a), Estates Code, is amended to
read as follows:
(a) All of the distributees of a decedent dying intestate
may agree on the advisability of having an independent
administration and collectively designate in the application for
administration of the decedent's estate, or in one or more
documents consenting to the application for administration of the
decedent's estate, a qualified person, firm, or corporation to
serve as independent administrator and request [in the application]
that no other action shall be had in the probate court in relation
to the settlement of the decedent's estate other than the return of
an inventory, appraisement, and list of claims of the decedent's
estate. In such case the probate court shall enter an order
granting independent administration and appointing the person,
firm, or corporation designated by the distributees [in the
application] as independent administrator, unless the court finds
that it would not be in the best interest of the estate to do so.
SECTION 40. Sections 401.004(c) and (h), Estates Code, are
amended to read as follows:
(c) If a distributee is an incapacitated person, the
guardian of the person of the distributee may consent to the
creation of an independent administration [sign the application] on
behalf of the distributee. If the probate court finds that either
the granting of independent administration or the appointment of
the person, firm, or corporation designated by the distributees [in
the application] as independent executor would not be in the best
interest of the incapacitated person, then, notwithstanding
anything to the contrary in Section 401.002 or 401.003, the court
may not enter an order granting independent administration of the
estate. If a distributee who is an incapacitated person has no
guardian of the person, the probate court may appoint a guardian ad
litem to act [make application] on behalf of the incapacitated
person if the court considers such an appointment necessary to
protect the interest of the distributees. Alternatively, if the
distributee who is an incapacitated person is a minor and has no
guardian of the person, the natural guardian or guardians of the
minor may consent on the minor's behalf if there is no conflict of
interest between the minor and the natural guardian or guardians.
(h) If a distributee of a decedent's estate dies and if by
virtue of the distributee's death the distributee's share of the
decedent's estate becomes payable to the distributee's estate, the
deceased distributee's personal representative may consent to the
[sign the application for] independent administration of the
decedent's estate under Section 401.002 or 401.003 and under
Subsection (c).
SECTION 41. Section 401.006, Estates Code, is amended to
read as follows:
Sec. 401.006. GRANTING POWER OF SALE BY AGREEMENT. In a
situation in which a decedent does not have a will, or a decedent's
will does not contain language authorizing the personal
representative to sell property or contains language that is not
sufficient to grant the representative that authority, the court
may include in an order appointing an independent executor [under
Section 401.002 or 401.003] any general or specific authority
regarding the power of the independent executor to sell property
that may be consented to by the beneficiaries who are to receive any
interest in the property in the application for independent
administration or for the appointment of an independent executor or
in their consents to the independent administration or to the
appointment of an independent executor. The independent executor,
in such event, may sell the property under the authority granted in
the court order without the further consent of those beneficiaries.
SECTION 42. Subtitle J, Title 2, Estates Code, is amended by
adding Chapter 456 to read as follows:
CHAPTER 456. DISBURSEMENT AND CLOSING OF LAWYER TRUST OR ESCROW
ACCOUNTS
Sec. 456.001. DEFINITION. In this chapter, "eligible
institution" means a financial institution or investment company in
which a lawyer has established an escrow or trust account for
purposes of holding client funds or the funds of third persons that
are in the lawyer's possession in connection with representation as
required by the Texas Disciplinary Rules of Professional Conduct.
Sec. 456.002. AUTHORITY TO DESIGNATE LAWYER ON CERTAIN
TRUST OR ESCROW ACCOUNTS. (a) When administering the estate of a
deceased lawyer who established one or more trust or escrow
accounts for client funds or the funds of third persons that are in
the lawyer's possession in connection with representation as
required by the Texas Disciplinary Rules of Professional Conduct,
the personal representative may hire through written agreement a
lawyer authorized to practice in this state to:
(1) be the authorized signer on the trust or escrow
account;
(2) determine who is entitled to receive the funds in
the account;
(3) disburse the funds to the appropriate persons or
to the decedent's estate; and
(4) close the account.
(b) If the personal representative is a lawyer authorized to
practice in this state, the personal representative may state that
fact and disburse the trust or escrow account funds of a deceased
lawyer in accordance with Subsection (a).
(c) An agreement under Subsection (a) or a statement under
Subsection (b) must be made in writing, and a copy of the agreement
or statement must be delivered to each eligible institution in
which the trust or escrow accounts are established.
Sec. 456.003. DUTY OF ELIGIBLE INSTITUTIONS. Within a
reasonable time after receiving a copy of a written agreement under
Section 456.002(a) or a statement from a personal representative
under Section 456.002(b) and instructions from the lawyer
identified in the agreement or statement, as applicable, regarding
how to disburse the funds or close a trust or escrow account, an
eligible institution shall disburse the funds and close the account
in compliance with the instructions unless otherwise prohibited by
rule.
Sec. 456.004. LIABILITY OF ELIGIBLE INSTITUTIONS. An
eligible institution is not liable for any act respecting an
account taken in compliance with this chapter.
Sec. 456.005. RULES. The supreme court may adopt rules
necessary to implement this chapter.
SECTION 43. Section 501.001, Estates Code, is amended to
read as follows:
Sec. 501.001. AUTHORITY FOR ANCILLARY PROBATE OF FOREIGN
WILL. The written will of a testator who was not domiciled in this
state at the time of the testator's death may be admitted to probate
at any time in this state if:
(1) the will would affect any property in this state;
and
(2) proof is presented that the will stands probated
or otherwise established in any state of the United States or a
foreign nation.
SECTION 44. Section 501.006(a), Estates Code, is amended to
read as follows:
(a) On application, an executor named in a foreign will
admitted to ancillary probate in this state in accordance with this
chapter is entitled to receive ancillary letters testamentary on
proof made to the court that:
(1) the executor has qualified to serve as executor in
the jurisdiction in which the will was previously admitted to
probate or otherwise established; [and]
(2) the executor is not disqualified from serving in
that capacity in this state; and
(3) if the will is admitted to ancillary probate in
this state after the fourth anniversary of the testator's death,
the executor continues to serve in that capacity in the
jurisdiction in which the will was previously admitted to probate
or otherwise established.
SECTION 45. Section 309.001(b), Estates Code, is repealed.
SECTION 46. The amendment by this Act of Sections
113.004(4) and 253.001, Estates Code, is intended to clarify rather
than change existing law.
SECTION 47. Section 113.152(c), Estates Code, as added by
this Act, applies to a P.O.D. account held by a financial
institution on or after the effective date of this Act, regardless
of the date on which the account was opened.
SECTION 48. Sections 201.051, 201.052, 201.056,
308.004(a), 309.056, 352.052(b), 353.051(a) and (b), 353.053(a),
353.153, and 353.154, Estates Code, as amended by this Act, and
Subchapters I and J, Chapter 255, and Section 353.002, Estates
Code, as added by this Act, apply only to the estate of a decedent
who dies on or after the effective date of this Act. The estate of a
decedent who dies before the effective date of this Act is governed
by the law in effect on the date of the decedent's death, and the
former law is continued in effect for that purpose.
SECTION 49. Sections 123.001 and 123.052(a), Estates Code,
as amended by this Act, and Subchapter D, Chapter 123, Estates Code,
as added by this Act, apply only to a divorced individual who dies
on or after the effective date of this Act.
SECTION 50. Sections 202.005, 202.055, 202.056,
202.201(a), 257.051(a), and 257.053, Estates Code, as amended by
this Act, apply to an action filed or other proceeding commenced on
or after the effective date of this Act. An action filed or other
proceeding commenced before that date is governed by the law in
effect on the date the action was filed or the proceeding was
commenced, and the former law is continued in effect for that
purpose.
SECTION 51. Section 251.053, Estates Code, as added by this
Act, and Sections 251.1045(a), 256.003(a) and (b), 256.152(b) and
(c), 501.001, and 501.006(a), Estates Code, as amended by this Act,
apply only to a will executed on or after the effective date of this
Act. A will executed before the effective date of this Act is
governed by the law in effect on the date the will was executed, and
the former law is continued in effect for that purpose.
SECTION 52. Sections 401.002, 401.003(a), 401.004(c) and
(h), and 401.006, Estates Code, as amended by this Act, apply to the
administration of the estate of a decedent that is pending or
commenced on or after the effective date of this Act.
SECTION 53. Sections 256.051(a), 256.052(a), 256.054,
301.002(a), 301.051, 301.052, and 301.151, Estates Code, as amended
by this Act, apply only to an application for the probate of a will
or administration of a decedent's estate that is filed on or after
the effective date of this Act. An application for the probate of a
will or 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.
SECTION 54. Chapter 456, Estates Code, as added by this Act,
applies only to a trust or escrow account established by a lawyer
who dies on or after the effective date of this Act. A trust or
escrow account established by a lawyer who dies before the
effective date of this Act is governed by the law in effect on the
date of the decedent's death, and the former law is continued in
effect for that purpose.
SECTION 55. This Act takes effect September 1, 2015.