85R1506 KFF-F
By: RodrÃguez S.B. No. 1017
A BILL TO BE ENTITLED
AN ACT
relating to decedents' estates and certain posthumous gifts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 22.004(a), Estates Code, is amended to
read as follows:
(a) "Child" includes an adopted child, regardless of
whether the adoption occurred through:
(1) an existing or former statutory procedure; or
(2) an equitable adoption or acts of estoppel.
SECTION 2. Section 33.001, Estates Code, is amended to read
as follows:
Sec. 33.001. PROBATE OF WILLS AND GRANTING OF LETTERS
TESTAMENTARY AND OF ADMINISTRATION. (a) Venue for a probate
proceeding to admit a will to probate or for the granting of letters
testamentary or of administration is:
(1) in the county in which the decedent resided, if the
decedent had a domicile or fixed place of residence in this state;
or
(2) with respect to a decedent who did not have a
domicile or fixed place of residence in this state:
(A) if the decedent died in this state, in the
county in which:
(i) the decedent's principal estate was
located at the time of the decedent's death; or
(ii) the decedent died; or
(B) if the decedent died outside of this state:
(i) in any county in this state in which the
decedent's nearest of kin reside; or
(ii) if there is no next of kin of the
decedent in this state, in the county in which the decedent's
principal estate was located at the time of the decedent's death.
(b) For purposes of this section:
(1) the decedent's next of kin:
(A) is the decedent's surviving spouse, or if
there is no surviving spouse, other relatives of the decedent
within the third degree by consanguinity; and
(B) includes a person who legally adopted the
decedent or has been legally adopted by the decedent and that
person's descendants; and
(2) the decedent's nearest of kin is determined in
accordance with order of descent, with the decedent's next of kin
who is nearest in order of descent first, and so on.
SECTION 3. Sections 112.103(a) and (b), Estates Code, are
amended to read as follows:
(a) The deceased spouse's signature to an agreement that is
the subject of an application under Section 112.101 may be proved
by:
(1) the sworn testimony of one witness taken in open
court;
(2) the affidavit of one witness; or
(3) the written or oral deposition of one witness
taken in accordance with Section 51.203 or the Texas Rules of Civil
Procedure [the same manner and under the same rules as depositions
in other civil actions].
(b) If the surviving spouse is competent to make an oath,
the surviving spouse's signature to the agreement may be proved by:
(1) the sworn testimony of the surviving spouse taken
in open court;
(2) the surviving spouse's affidavit; or
(3) the written or oral deposition of the surviving
spouse taken in accordance with Section 51.203 or the Texas Rules of
Civil Procedure [the same manner and under the same rules as
depositions in other civil actions].
SECTION 4. Sections 113.252(a), (b), and (c), Estates Code,
are amended to read as follows:
(a) A multiple-party account is not effective against:
(1) an estate of a deceased party to transfer to a
survivor:
(A) amounts equal to the amounts of estate taxes
and expenses charged under Subchapter A, Chapter 124, to the
deceased party, P.O.D. payee, or beneficiary of the account; or
(B) if other assets of the estate are
insufficient, amounts needed to pay debts, other taxes, and
expenses of administration, including statutory allowances to the
surviving spouse and minor children[, if other assets of the estate
are insufficient]; or
(2) the claim of a secured creditor who has a lien on
the account.
(b) A party, P.O.D. payee, or beneficiary who receives
payment from a multiple-party account or causes a payment to be made
to another person from a multiple-party account after the death of a
deceased party is liable to account to the deceased party's
personal representative for amounts the deceased party owned
beneficially immediately before the party's death to the extent
necessary to discharge the claims, expenses, and charges described
by Subsection (a) [that remain unpaid after application of the
deceased party's estate]. The party, P.O.D. payee, or beneficiary
is not liable in an amount greater than the amount the party, P.O.D.
payee, or beneficiary received or caused to be paid to another
person from the multiple-party account after the deceased party's
death.
(c) Any [A] proceeding by the personal representative of a
deceased party to assert liability under Subsection (b)[:
[(1) may only be commenced if the personal
representative receives a written demand by a surviving spouse, a
creditor, or one acting for a minor child of the deceased party; and
[(2)] must be commenced on or before the second
anniversary of the death of the deceased party.
SECTION 5. 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 as
settlor 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 6. Subchapter B, Chapter 123, Estates Code, is
amended by adding Section 123.056 to read as follows:
Sec. 123.056. CERTAIN TRUSTS WITH DIVORCED INDIVIDUALS AS
JOINT SETTLORS. (a) This section applies only to a trust created
under a trust instrument that:
(1) was executed by two married individuals as
settlors whose marriage to each other is subsequently dissolved;
and
(2) includes a provision described by Section
123.052(a).
(b) On the death of one of the divorced individuals who is a
settlor of a trust to which this section applies, the trustee shall
divide the trust into two trusts, each of which shall be composed of
the property attributable to the contributions of only one of the
divorced individuals.
(c) An action authorized in a trust instrument described by
Subsection (a) that requires the actions of both divorced
individuals may be taken with respect to a trust established in
accordance with Subsection (b) from the surviving divorced
individual's contributions solely by that divorced individual.
(d) The provisions of this subchapter apply independently
to each trust established in accordance with Subsection (b) as if
the divorced individual from whose contributions the trust was
established had been the only settlor to execute the trust
instrument described by Subsection (a).
(e) This section does not apply if one of the following
provides otherwise:
(1) a court order;
(2) the express terms of a trust instrument executed
by the two divorced individuals before their marriage was
dissolved; or
(3) an express provision of a contract relating to the
division of the marital estate entered into between the two
divorced individuals before, during, or after their marriage.
SECTION 7. Section 123.151, Estates Code, is amended by
amending Subsections (a) and (b) and adding Subsections (c-1) and
(d-1) to read as follows:
(a) In this section:
(1) "Beneficiary," "multiple-party account," "party,"
"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.
(4) "Survivorship agreement" means an agreement
described by Section 113.151.
(b) If[, after] a decedent established [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
and[,] the decedent's marriage was later [is] dissolved by divorce,
annulment, or a declaration that the marriage is void, any payable
on request after death [the] designation provision or provision of
a survivorship agreement with respect to that account in favor of
the decedent's former spouse or a relative of the former spouse who
is not a relative of the decedent [on the account] is not effective
as to that [the former] spouse or [the former spouse's] relative
unless:
(1) the court decree dissolving the marriage:
(A) designates the former spouse or the former
spouse's relative as the P.O.D. payee or beneficiary; or
(B) reaffirms the survivorship agreement or the
relevant provision of the survivorship agreement in favor of the
former spouse or the former spouse's relative;
(2) after the marriage was dissolved, the decedent:
(A) redesignated the former spouse or the former
spouse's relative as the P.O.D payee or beneficiary; or
(B) reaffirmed the survivorship agreement in
writing [after the marriage was dissolved]; or
(3) the former spouse or the former spouse's relative
is designated to receive, or under the survivorship agreement would
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-1) If the provision of a survivorship agreement is not
effective under Subsection (b), for purposes of determining the
disposition of the decedent's interest in the account, the former
spouse or former spouse's relative who would have received the
decedent's interest if the provision were effective is treated as
if that spouse or relative predeceased the decedent.
(d-1) A financial institution is not liable for payment of
an account to a former spouse or the former spouse's relative as a
party to the account, notwithstanding the fact that a designation
or provision of a survivorship agreement in favor of that person is
not effective under Subsection (b).
SECTION 8. Section 124.001(3), Estates Code, is amended to
read as follows:
(3) "Estate tax" means any estate, inheritance, or
death tax levied or assessed on the property of a decedent's estate
because of the death of a person and imposed by federal, state,
local, or foreign law, including the federal estate tax and the
inheritance tax imposed by former Chapter 211, Tax Code, and
including interest and penalties imposed in addition to those
taxes. The term does not include a tax imposed under Section 2601
or 2701(d)(1)(A), Internal Revenue Code of 1986 (26 U.S.C. Section
2601 or 2701(d)).
SECTION 9. Section 201.054, Estates Code, is amended by
adding Subsection (e) to read as follows:
(e) For purposes of this section, "adopted child" means a
child:
(1) adopted through an existing or former statutory
procedure; or
(2) considered by a court to be equitably adopted or
adopted by acts of estoppel.
SECTION 10. The heading to Section 202.052, Estates Code,
is amended to read as follows:
Sec. 202.052. SERVICE OF CITATION BY PUBLICATION [WHEN
RECIPIENT'S NAME OR ADDRESS IS NOT ASCERTAINABLE].
SECTION 11. Section 202.057(a), Estates Code, is amended to
read as follows:
(a) A person who files an application under Section 202.005
shall file with the court:
(1) a copy of any citation required by this subchapter
and the proof of delivery of service of the citation; and
(2) an affidavit sworn to by the applicant or a
certificate signed by the applicant's attorney stating:
(A) that the citation was served as required by
this subchapter;
(B) the name of each person to whom the citation
was served, if the person's name is not shown on the proof of
delivery; and
(C) if service of citation is waived under
Section 202.056:
(i) the name of each person who waived
citation under that section; and
(ii) if citation is waived under Section
202.056(b)(1), the name of the distributee and the representative
capacity of the person who waived citation required to be served on
the distributee [Section 202.056].
SECTION 12. Section 205.001, Estates Code, is amended to
read as follows:
Sec. 205.001. ENTITLEMENT TO ESTATE WITHOUT APPOINTMENT OF
PERSONAL REPRESENTATIVE. The distributees of the estate of a
decedent who dies intestate are entitled to the decedent's estate
without waiting for the appointment of a personal representative of
the estate to the extent the estate assets, excluding homestead and
exempt property, exceed the known liabilities of the estate,
excluding any liabilities secured by homestead and exempt property,
if:
(1) 30 days have elapsed since the date of the
decedent's death;
(2) no petition for the appointment of a personal
representative is pending or has been granted;
(3) the value of the estate assets on the date of the
affidavit described by Subsection (4), excluding homestead and
exempt property, does not exceed $75,000 [$50,000];
(4) an affidavit that meets the requirements of
Section 205.002 is filed with the clerk of the court that has
jurisdiction and venue of the estate;
(5) the judge approves the affidavit as provided by
Section 205.003; and
(6) the distributees comply with Section 205.004.
SECTION 13. Section 251.001, Estates Code, is amended to
read as follows:
Sec. 251.001. WHO MAY EXECUTE WILL. Under the rules and
limitations prescribed by law, a person of sound mind has the right
and power to make a [last] will [and testament] if, at the time the
will is made, the person:
(1) is 18 years of age or older;
(2) is or has been married; or
(3) is 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 14. Section 251.002, Estates Code, is amended to
read as follows:
Sec. 251.002. INTERESTS THAT MAY PASS BY WILL;
DISINHERITANCE. (a) Subject to limitations prescribed by law, a
person competent to make a [last] will [and testament] may devise
under the will [and testament] all the estate, right, title, and
interest in property the person has at the time of the person's
death.
(b) A person who makes a [last] will [and testament] may:
(1) disinherit an heir; and
(2) direct the disposition of property or an interest
passing under the will or by intestacy.
SECTION 15. Section 251.051, Estates Code, is amended to
read as follows:
Sec. 251.051. WRITTEN, SIGNED, AND ATTESTED. Except as
otherwise provided by law, a [last] will [and testament] must be:
(1) in writing;
(2) signed by:
(A) the testator in person; or
(B) another person on behalf of the testator:
(i) in the testator's presence; and
(ii) under the testator's direction; and
(3) attested by two or more credible witnesses who are
at least 14 years of age and who subscribe their names to the will in
their own handwriting in the testator's presence.
SECTION 16. Section 251.103, Estates Code, is amended to
read as follows:
Sec. 251.103. PERIOD FOR MAKING ATTESTED WILLS SELF-PROVED.
A will [or testament] that meets the requirements of Section
251.051 may be made self-proved at:
(1) the time of the execution of the will [or
testament]; or
(2) a later date during the lifetime of the testator
and the witnesses.
SECTION 17. Sections 251.104(c), (d), and (e), Estates
Code, are amended to read as follows:
(c) The self-proving affidavit shall be attached or annexed
to the will [or testament].
(d) An affidavit that is in substantial compliance with the
form of the affidavit provided by Subsection (e), that is
subscribed and acknowledged by the testator, and that is subscribed
and sworn to by the attesting witnesses is sufficient to self-prove
the will. No other affidavit or certificate of a testator is
required to self-prove a will [or testament] other than the
affidavit provided by Subsection (e).
(e) The form and content of the self-proving affidavit must
be substantially as follows:
THE STATE OF TEXAS
COUNTY OF ________________
Before me, the undersigned authority, on this day personally
appeared _____________, _____________, and _____________, known to
me to be the testator and the witnesses, respectively, whose names
are subscribed to the annexed or foregoing instrument in their
respective capacities, and, all of said persons being by me duly
sworn, the said _____________, testator, declared to me and to the
said witnesses in my presence that said instrument is [his/her]
[last] will [and testament], and that [he/she] had willingly made
and executed it as [his/her] free act and deed; and the said
witnesses, each on [his/her] oath stated to me, in the presence and
hearing of the said testator, that the said testator had declared to
them that said instrument is [his/her] [last] will [and testament],
and that [he/she] executed same as such and wanted each of them to
sign it as a witness; and upon their oaths each witness stated
further that they did sign the same as witnesses in the presence of
the said testator and at [his/her] request; that [he/she] was at
that time eighteen years of age or over (or being under such age,
was or had been lawfully married, or was then a member of the armed
forces of the United States, or an auxiliary of the armed forces of
the United States, or the United States Maritime Service) and was of
sound mind; and that each of said witnesses was then at least
fourteen years of age.
_______________
Testator
_______________
Witness
_______________
Witness
Subscribed and sworn to before me by the said ____________,
testator, and by the said ________________ and _______________,
witnesses, this ______ day of ________________ A.D.
________________.
(SEAL)
(Signed) ______________________________
(Official Capacity of Officer)
SECTION 18. Section 251.107, Estates Code, is amended to
read as follows:
Sec. 251.107. SELF-PROVED HOLOGRAPHIC WILL.
Notwithstanding any other provision of this subchapter, a will
written wholly in the testator's handwriting may be made
self-proved at any time during the testator's lifetime by the
attachment or annexation to the will of an affidavit by the testator
to the effect that:
(1) the instrument is the testator's [last] will;
(2) the testator was 18 years of age or older at the
time the will was executed or, if the testator was younger than 18
years of age, that the testator:
(A) was or had been married; or
(B) was 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 at the time the will was
executed;
(3) the testator was of sound mind; and
(4) the testator has not revoked the will.
SECTION 19. Section 252.152, Estates Code, is amended to
read as follows:
Sec. 252.152. PRIOR DEPOSITED WILL IN RELATION TO LATER
WILL. A will that is not deposited as provided by Subchapter A
shall be admitted to probate on proof that the will is the last will
[and testament] of the testator, notwithstanding the fact that the
testator has a prior will that has been deposited in accordance with
Subchapter A.
SECTION 20. Section 255.151, Estates Code, is amended to
read as follows:
Sec. 255.151. APPLICABILITY OF SUBCHAPTER. This subchapter
applies unless the testator's [last] will [and testament] provides
otherwise. For example, a devise in the testator's will stating "to
my surviving children" or "to such of my children as shall survive
me" prevents the application of Sections 255.153 and 255.154.
SECTION 21. Section 255.401, Estates Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) A right to take as a member under 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 of the person by
which the class is measured and survives that person by [for] at
least 120 hours.
(a-1) For purposes of this section, a [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 of the person by which the
class is measured; and
(2) presumed to be in gestation at the time of death of
the person by which the class is measured [the testator's death] if
the person was born before the 301st day after the date of the
person's [testator's] death.
SECTION 22. Section 255.451, Estates Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) Subject to Subsection (a-1), on [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.
(a-1) A personal representative seeking to modify or reform
a will under this section must file a petition on or before the
fourth anniversary of the date the will was admitted to probate.
SECTION 23. Section 256.003(b), Estates Code, is amended to
read as follows:
(b) Except as provided by Section 501.006 with respect to a
foreign will, letters testamentary may not be issued if a will is
admitted to probate after the fourth anniversary of the testator's
death unless it is shown that the application for probate was filed
on or before the fourth anniversary of the testator's death.
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, 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;
(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) that the testator's estate does not owe an unpaid
debt, other than any debt secured by a lien on real estate, or that
for another reason there is no necessity for administration of the
estate;
(11) whether a marriage of the testator was ever
dissolved after the will was made and, if so, when and from whom;
and
(12) whether the state, a governmental agency of the
state, or a charitable organization is named in the will as a
devisee.
SECTION 25. Section 257.054, Estates Code, is amended to
read as follows:
Sec. 257.054. PROOF REQUIRED. An applicant for the probate
of a will as a muniment of title must prove to the court's
satisfaction that:
(1) the testator is dead;
(2) four years have not elapsed since the date of the
testator'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;
(5) the testator's estate does not owe an unpaid debt,
other than any debt secured by a lien on real estate, or that for
another reason there is no necessity for administration of the
estate;
(6) the testator did not revoke the will; and
(7) if the will is not self-proved in the manner
provided by this title, the testator:
(A) executed the will with the formalities and
solemnities and under the circumstances required by law to make the
will valid; and
(B) at the time of executing the will was of sound
mind and:
(i) was 18 years of age or older;
(ii) was or had been married; or
(iii) was 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 26. Section 305.108, Estates Code, is amended to
read as follows:
Sec. 305.108. FORM OF BOND. The following form, or a form
with the same substance, may be used for the bond of a personal
representative:
The State of Texas
County of ________
Know all persons by these presents that we, _______ (insert
name of each principal), as principal, and _______ (insert name of
each surety), as sureties, are held and firmly bound unto the judge
of ____________ (insert reference to appropriate judge), and that
judge's successors in office, in the sum of _____ dollars,
conditioned that the above bound principal or principals, appointed
as _______ (insert "executor of the [last] will [and testament],"
"administrator with the will annexed of the estate," "administrator
of the estate," or "temporary administrator of the estate," as
applicable) of _______ (insert name of decedent), deceased, shall
well and truly perform all of the duties required of the principal
or principals by law under that appointment.
SECTION 27. Sections 308.051(a) and (c), Estates Code, are
amended to read as follows:
(a) Within one month after receiving letters testamentary
or of administration, a personal representative of an estate shall
provide notice requiring each person who has a claim against the
estate to present the claim within the period prescribed by law by:
(1) having the notice published in a newspaper of
general circulation [printed] in the county in which the letters
were issued; and
(2) if the decedent remitted or should have remitted
taxes administered by the comptroller, sending the notice to the
comptroller by certified or registered mail.
(c) If there is no [a] newspaper of general circulation [is
not printed] in the county in which the letters testamentary or of
administration were issued, the notice must be posted and the
return made and filed as otherwise required by this title.
SECTION 28. Section 310.006, Estates Code, is amended to
read as follows:
Sec. 310.006. FREQUENCY AND METHOD OF DETERMINING INTERESTS
IN CERTAIN ESTATE ASSETS. Except as required by Sections 2055 and
2056, Internal Revenue Code of 1986 (26 U.S.C. Sections 2055 and
2056), the frequency and method of determining the distributees'
[beneficiaries'] respective interests in the undistributed assets
of an estate are in the sole and absolute discretion of the executor
of the estate. The executor may consider all relevant factors,
including administrative convenience and expense and the interests
of the various distributees [beneficiaries] of the estate, to reach
a fair and equitable result among distributees [beneficiaries].
SECTION 29. Section 362.005(b), Estates Code, is amended to
read as follows:
(b) Citation issued under Subsection (a) must:
(1) contain:
(A) a statement that an account for final
settlement has been presented;
(B) the time and place the court will consider
the account; and
(C) a statement requiring the person cited to
appear and contest the account, if the person wishes to contest the
account; and
(2) be given to each heir or distributee [beneficiary]
of the decedent by certified mail, return receipt requested, unless
the court by written order directs another method of service to be
given.
SECTION 30. Section 359.001(a), Estates Code, is amended to
read as follows:
(a) Not later than the 60th day after [On] the first
anniversary of [expiration of 12 months from] the date a personal
representative qualifies and receives letters testamentary or of
administration to administer a decedent's estate under court order,
unless the court authorizes an extension, the representative shall
file with the court an account consisting of a written exhibit made
under oath that lists all claims against the estate presented to the
representative during the 12-month period following the
representative's qualification and receipt of letters [covered by
the account]. The exhibit must specify:
(1) the claims allowed by the representative;
(2) the claims paid by the representative;
(3) the claims rejected by the representative and the
date the claims were rejected; and
(4) the claims for which a lawsuit has been filed and
the status of that lawsuit.
SECTION 31. Section 359.002(a), Estates Code, is amended to
read as follows:
(a) Not later than the 60th day after each anniversary of
the date a personal representative of the estate of a decedent
qualifies and receives letters testamentary or of administration to
administer the decedent's estate under court order, unless the
court authorizes an extension, the [Each personal] representative
[of the estate of a decedent] shall [continue to] file an annual
account conforming to the essential requirements of Section 359.001
regarding changes in the estate assets occurring during the
12-month period after [since] the date the most recent previous
account was filed.
SECTION 32. 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 any
general or specific authority regarding the power of the
independent executor to sell property that may be consented to by
the distributees [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 distributees [beneficiaries].
SECTION 33. Chapter 405, Estates Code, is amended by adding
Section 405.0015 to read as follows:
Sec. 405.0015. DISTRIBUTIONS GENERALLY. Unless the will,
if any, or a court order provides otherwise, an independent
executor may, in distributing property not specifically devised
that the independent executor is authorized to sell:
(1) make distributions in divided or undivided
interests;
(2) allocate particular assets in proportionate or
disproportionate shares;
(3) value the estate property for the purposes of
acting under Subdivision (1) or (2); and
(4) adjust the distribution, division, or termination
for resulting differences in valuation.
SECTION 34. Sections 405.003(b) and (d), Estates Code, are
amended to read as follows:
(b) On the filing of an action under this section, each
distributee [beneficiary] of the estate shall be personally served
with citation, except for a distributee [beneficiary] who has
waived the issuance and service of citation.
(d) On or before filing an action under this section, the
independent executor must distribute to the distributees
[beneficiaries] of the estate any of the remaining assets or
property of the estate that remains in the independent executor's
possession after all of the estate's debts have been paid, except
for a reasonable reserve of assets that the independent executor
may retain in a fiduciary capacity pending court approval of the
final account. The court may review the amount of assets on reserve
and may order the independent executor to make further
distributions under this section.
SECTION 35. Section 456.003, Estates Code, is amended to
read as follows:
Sec. 456.003. DUTY OF ELIGIBLE INSTITUTIONS. Not later
than the seventh business day [Within a reasonable time] after the
date an eligible institution receives [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, the [an] eligible institution shall disburse the
funds and close the account in compliance with the instructions.
SECTION 36. Chapter 456, Estates Code, is amended by adding
Section 456.0045 to read as follows:
Sec. 456.0045. PRIVATE CAUSE OF ACTION. (a) If an eligible
institution violates Section 456.003, a person aggrieved by the
violation may bring an action against the eligible institution to:
(1) obtain declaratory or injunctive relief to enforce
the section; and
(2) recover damages to the same extent the person
would be entitled to damages had the eligible institution acted in
the same manner with respect to the deceased lawyer before the
lawyer's death.
(b) A person who prevails in an action under this section
may recover court costs and reasonable attorney's fees.
SECTION 37. Subchapter A, Chapter 112, Property Code, is
amended by adding Section 112.011 to read as follows:
Sec. 112.011. POSTHUMOUS CLASS GIFTS MEMBERSHIP. (a) A
right to take as a member under a class gift does not accrue to any
person unless the person is born before, or is in gestation at, the
time of death of the person by which the class is measured and
survives that person by at least 120 hours.
(b) For purposes of Subsection (a), a person is:
(1) considered to be in gestation if insemination or
implantation occurs at or before the time of death of the person by
which the class is measured; and
(2) presumed to be in gestation at the time of death of
the person by which the class is measured if the person was born
before the 301st day after the date of the person's death.
(c) A provision in the trust instrument that is contrary to
this section prevails over this section.
SECTION 38. Sections 303.003 and 362.010, Estates Code, are
repealed.
SECTION 39. Section 33.001, Estates Code, as amended by
this Act, applies only to an application for the probate of a will
or for the granting of letters testamentary or of 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 the granting
of letters 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 40. Section 112.103, Estates Code, as amended by
this Act, applies only to a proceeding under Subchapter C, Chapter
112, Estates Code, commenced on or after the effective date of this
Act. A proceeding under that subchapter 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.
SECTION 41. Section 113.252(c), Estates Code, as amended by
this Act, applies to a proceeding commenced before, on, or after the
effective date of this Act, regardless of the date of the decedent's
death.
SECTION 42. Section 123.056, Estates Code, as added by this
Act, applies to a trust created before, on, or after the effective
date of this Act with respect to which the marriage of the settlors
is dissolved on or after that date.
SECTION 43. Sections 123.151(a) and (b), Estates Code, as
amended by this Act, and Section 123.151(c-1), as added by this Act,
apply only to a multiple-party account for which the marriage of a
party to the account is dissolved on or after the effective date of
this Act.
SECTION 44. Section 123.151(d-1), Estates Code, as added by
this Act, and Section 456.0045, Estates Code, as added by this Act,
apply only to a cause of action that accrues on or after the
effective date of this Act. A cause of action that accrued before
the effective date of this Act is governed by the law applicable to
the cause of action immediately before the effective date of this
Act, and that law is continued in effect for that purpose.
SECTION 45. Section 202.057, Estates Code, as amended by
this Act, applies only to an application for a proceeding to declare
heirship that is filed on or after the effective date of this Act.
An application for a proceeding to declare heirship 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 46. Section 205.001, Estates Code, as amended by
this Act, applies to a small estate administration commenced on or
after the effective date of this Act, regardless of the date of the
decedent's death.
SECTION 47. Section 255.401, Estates Code, as amended by
this Act, and Section 112.011, Property Code, as added by this Act,
apply to the estate of a decedent who dies before, on, or after the
effective date of this Act.
SECTION 48. Section 255.451, Estates Code, as amended by
this Act, applies only to a petition filed on or after the effective
date of this Act. A petition filed before that date is governed by
the law in effect on the date the petition was filed, and the former
law is continued in effect for that purpose.
SECTION 49. Sections 256.003(b), 257.051(a), and 257.054,
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 50. Sections 359.001(a) and 359.002(a), Estates
Code, as amended by this Act, apply to an account filed on or after
the effective date of this Act, regardless of whether the personal
representative was appointed before, on, or after that date.
SECTION 51. Section 405.0015, Estates Code, as added by
this Act, applies to the administration of the estate of a decedent
that is pending or commenced on or after the effective date of this
Act.
SECTION 52. This Act takes effect September 1, 2017.