By: Zaffirini S.B. No. 38
(In the Senate - Filed November 14, 2016; January 24, 2017,
read first time and referred to Committee on State Affairs;
March 6, 2017, reported adversely, with favorable Committee
Substitute by the following vote: Yeas 9, Nays 0; March 6, 2017,
sent to printer.)
Click here to see the committee vote
COMMITTEE SUBSTITUTE FOR S.B. No. 38 By: Zaffirini
A BILL TO BE ENTITLED
AN ACT
relating to certain procedural matters in courts exercising probate
jurisdiction.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 361.052, Estates Code, is amended to
read as follows:
Sec. 361.052. REMOVAL WITH NOTICE. (a) The court may
remove a personal representative on the court's own motion, or on
the complaint of any interested person, after the representative
has been cited by personal service to answer at a time and place set
[fixed] in the notice, if:
(1) sufficient grounds appear to support a belief that
the representative has misapplied, embezzled, or removed from the
state, or is about to misapply, embezzle, or remove from the state,
all or part of the property entrusted to the representative's care;
(2) the representative fails to return any account
required by law to be made;
(3) the representative fails to obey a proper order of
the court that has jurisdiction with respect to the performance of
the representative's duties;
(4) the representative is proved to have been guilty
of gross misconduct, or mismanagement in the performance of the
representative's duties;
(5) the representative:
(A) becomes incapacitated;
(B) is sentenced to the penitentiary; or
(C) from any other cause, becomes incapable of
properly performing the duties of the representative's trust; or
(6) the representative, as executor or administrator,
fails to[:
[(A)] make a final settlement by the third
anniversary of the date letters testamentary or of administration
are granted, unless that period is extended by the court on a
showing of sufficient cause supported by oath[; or
[(B) timely file the affidavit or certificate
required by Section 308.004].
(b) If a personal representative, as executor or
administrator, fails to timely file the affidavit or certificate
required by Section 308.004, the court, on the court's own motion,
may remove the personal representative after providing 30 days'
written notice to the personal representative to answer at a time
and place set in the notice, by certified mail, return receipt
requested, to:
(1) the representative's last known address; and
(2) the last known address of the representative's
attorney of record.
SECTION 2. Section 404.0035, Estates Code, is amended to
read as follows:
Sec. 404.0035. REMOVAL OF INDEPENDENT EXECUTOR WITH NOTICE.
(a) The probate court, on the court's own motion, may remove an
independent executor appointed under this subtitle after providing
30 days' written notice of the court's intention to the independent
executor, requiring answering at a time and place set in the notice
[of the court's intent to remove the independent executor], by
certified mail, return receipt requested, to the independent
executor's last known address and to the last known address of the
independent executor's attorney of record, if the independent
executor:
(1) neglects to qualify in the manner and time
required by law; [or]
(2) fails to return, before the 91st day after the date
the independent executor qualifies, either an inventory of the
estate property and a list of claims that have come to the
independent executor's knowledge or an affidavit in lieu of the
inventory, appraisement, and list of claims, unless that deadline
is extended by court order; or
(3) fails to timely file the affidavit or certificate
required by Section 308.004.
(b) The probate court, on its own motion or on motion of any
interested person, after the independent executor has been cited by
personal service to answer at a time and place set [fixed] in the
notice, may remove an independent executor when:
(1) the independent executor fails to make an
accounting which is required by law to be made;
(2) [the independent executor fails to timely file the
affidavit or certificate required by Section 308.004;
[(3)] the independent executor is proved to have been
guilty of gross misconduct or gross mismanagement in the
performance of the independent executor's duties;
(3) [(4)] the independent executor becomes an
incapacitated person, or is sentenced to the penitentiary, or from
any other cause becomes legally incapacitated from properly
performing the independent executor's fiduciary duties; or
(4) [(5)] the independent executor becomes incapable
of properly performing the independent executor's fiduciary duties
due to a material conflict of interest.
SECTION 3. Section 1023.003, Estates Code, is amended to
read as follows:
Sec. 1023.003. [APPLICATION FOR] TRANSFER OF GUARDIANSHIP
TO ANOTHER COUNTY. (a) When a guardian or any other person desires
to transfer the transaction of the business of the guardianship
from one county to another, the person shall file a written
application in the court in which the guardianship is pending
stating the reason for the transfer.
(b) With notice as provided by Section 1023.004, the court
in which a guardianship is pending, on the court's own motion, may
transfer the transaction of the business of the guardianship to
another county if the ward resides in the county to which the
guardianship is to be transferred.
SECTION 4. Section 1023.004, Estates Code, is amended to
read as follows:
Sec. 1023.004. NOTICE. (a) On filing an application or on
motion of a court to transfer a guardianship to another county under
Section 1023.003, the sureties on the bond of the guardian shall be
cited by personal service to appear and show cause why the
guardianship [application] should not be transferred [granted].
(b) If an application is filed by a person other than the
guardian or if a court made a motion to transfer a guardianship, the
guardian shall be cited by personal service to appear and show cause
why the guardianship [application] should not be transferred
[granted].
SECTION 5. Section 1023.005, Estates Code, is amended to
read as follows:
Sec. 1023.005. COURT ACTION. On hearing an application or
motion under Section 1023.003, if good cause is not shown to deny
the transfer [application] and it appears that transfer of the
guardianship is in the best interests of the ward, the court shall
enter an order:
(1) authorizing the transfer on payment on behalf of
the estate of all accrued costs; and
(2) requiring that any existing bond of the guardian
must remain in effect until a new bond has been given or a rider has
been filed in accordance with Section 1023.010.
SECTION 6. Section 1203.052, Estates Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) The court may remove a guardian as provided by
Subsection (a-1) [on the court's own motion, or on the complaint of
an interested person, after the guardian has been cited by personal
service to answer at a time and place set in the notice,] if:
(1) sufficient grounds appear to support a belief that
the guardian has misapplied, embezzled, or removed from the state,
or is about to misapply, embezzle, or remove from the state, any of
the property entrusted to the guardian's care;
(2) the guardian fails to return any account or report
that is required by law to be made;
(3) the guardian fails to obey a proper order of the
court that has jurisdiction with respect to the performance of the
guardian's duties;
(4) the guardian is proved to have been guilty of gross
misconduct or mismanagement in the performance of the guardian's
duties;
(5) the guardian:
(A) becomes incapacitated;
(B) is sentenced to the penitentiary; or
(C) from any other cause, becomes incapable of
properly performing the duties of the guardian's trust;
(6) the guardian has engaged in conduct with respect
to the ward that would be considered to be abuse, neglect, or
exploitation, as those terms are defined by Section 48.002, Human
Resources Code, if engaged in with respect to an elderly or disabled
person, as defined by that section;
(7) the guardian neglects to educate or maintain the
ward as liberally as the means of the ward's estate and the ward's
ability or condition permit;
(8) the guardian interferes with the ward's progress
or participation in programs in the community;
(9) the guardian fails to comply with the requirements
of Subchapter G, Chapter 1104;
(10) the court determines that, because of the
dissolution of the joint guardians' marriage, the termination of
the guardians' joint appointment and the continuation of only one
of the joint guardians as the sole guardian is in the best interest
of the ward; or
(11) the guardian would be ineligible for appointment
as a guardian under Subchapter H, Chapter 1104.
(a-1) The court may remove a guardian for a reason listed in
Subsection (a) on the:
(1) court's own motion, after the guardian has been
notified, by certified mail, return receipt requested, to answer at
a time and place set in the notice; or
(2) complaint of an interested person, after the
guardian has been cited by personal service to answer at a time and
place set in the notice.
SECTION 7. Sections 361.052 and 404.0035, Estates Code, as
amended by this Act, apply to the estate of a decedent who dies
before, on, or after the effective date of this Act.
SECTION 8. Sections 1023.003, 1023.004, 1023.005, and
1203.052, Estates Code, as amended by this Act, apply to a
guardianship created before, on, or after the effective date of
this Act.
SECTION 9. This Act takes effect September 1, 2017.
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