Texas 2017 - 85th Regular

Texas Senate Bill SB38 Compare Versions

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1	1	By: Zaffirini, et al. S.B. No. 38
2	2	(Murr)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to certain procedural matters in courts exercising probate
8	8	jurisdiction.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 361.052, Estates Code, is amended to
11	11	read as follows:
12	12	Sec. 361.052. REMOVAL WITH NOTICE. (a) The court may
13	13	remove a personal representative on the court's own motion, or on
14	14	the complaint of any interested person, after the representative
15	15	has been cited by personal service to answer at a time and place set
16	16	[fixed] in the notice, if:
17	17	(1) sufficient grounds appear to support a belief that
18	18	the representative has misapplied, embezzled, or removed from the
19	19	state, or is about to misapply, embezzle, or remove from the state,
20	20	all or part of the property entrusted to the representative's care;
21	21	(2) the representative fails to return any account
22	22	required by law to be made;
23	23	(3) the representative fails to obey a proper order of
24	24	the court that has jurisdiction with respect to the performance of
25	25	the representative's duties;
26	26	(4) the representative is proved to have been guilty
27	27	of gross misconduct, or mismanagement in the performance of the
28	28	representative's duties;
29	29	(5) the representative:
30	30	(A) becomes incapacitated;
31	31	(B) is sentenced to the penitentiary; or
32	32	(C) from any other cause, becomes incapable of
33	33	properly performing the duties of the representative's trust; or
34	34	(6) the representative, as executor or administrator,
35	35	fails to[:
36	36	[(A)] make a final settlement by the third
37	37	anniversary of the date letters testamentary or of administration
38	38	are granted, unless that period is extended by the court on a
39	39	showing of sufficient cause supported by oath[; or
40	40	[(B) timely file the affidavit or certificate
41	41	required by Section 308.004].
42	42	(b) If a personal representative, as executor or
43	43	administrator, fails to timely file the affidavit or certificate
44	44	required by Section 308.004, the court, on the court's own motion,
45	45	may remove the personal representative after providing 30 days'
46	46	written notice to the personal representative to answer at a time
47	47	and place set in the notice, by certified mail, return receipt
48	48	requested, to:
49	49	(1) the representative's last known address; and
50	50	(2) the last known address of the representative's
51	51	attorney of record.
52	52	SECTION 2. Section 404.0035, Estates Code, is amended to
53	53	read as follows:
54	54	Sec. 404.0035. REMOVAL OF INDEPENDENT EXECUTOR WITH NOTICE.
55	55	(a) The probate court, on the court's own motion, may remove an
56	56	independent executor appointed under this subtitle after providing
57	57	30 days' written notice of the court's intention to the independent
58	58	executor, requiring answering at a time and place set in the notice
59	59	[of the court's intent to remove the independent executor], by
60	60	certified mail, return receipt requested, to the independent
61	61	executor's last known address and to the last known address of the
62	62	independent executor's attorney of record, if the independent
63	63	executor:
64	64	(1) neglects to qualify in the manner and time
65	65	required by law; [or]
66	66	(2) fails to return, before the 91st day after the date
67	67	the independent executor qualifies, either an inventory of the
68	68	estate property and a list of claims that have come to the
69	69	independent executor's knowledge or an affidavit in lieu of the
70	70	inventory, appraisement, and list of claims, unless that deadline
71	71	is extended by court order; or
72	72	(3) fails to timely file the affidavit or certificate
73	73	required by Section 308.004.
74	74	(b) The probate court, on its own motion or on motion of any
75	75	interested person, after the independent executor has been cited by
76	76	personal service to answer at a time and place set [fixed] in the
77	77	notice, may remove an independent executor when:
78	78	(1) the independent executor fails to make an
79	79	accounting which is required by law to be made;
80	80	(2) [the independent executor fails to timely file the
81	81	affidavit or certificate required by Section 308.004;
82	82	[(3)] the independent executor is proved to have been
83	83	guilty of gross misconduct or gross mismanagement in the
84	84	performance of the independent executor's duties;
85	85	(3) [(4)] the independent executor becomes an
86	86	incapacitated person, or is sentenced to the penitentiary, or from
87	87	any other cause becomes legally incapacitated from properly
88	88	performing the independent executor's fiduciary duties; or
89	89	(4) [(5)] the independent executor becomes incapable
90	90	of properly performing the independent executor's fiduciary duties
91	91	due to a material conflict of interest.
92	92	SECTION 3. Section 1023.003, Estates Code, is amended to
93	93	read as follows:
94	94	Sec. 1023.003. [APPLICATION FOR] TRANSFER OF GUARDIANSHIP
95	95	TO ANOTHER COUNTY. (a) When a guardian or any other person desires
96	96	to transfer the transaction of the business of the guardianship
97	97	from one county to another, the person shall file a written
98	98	application in the court in which the guardianship is pending
99	99	stating the reason for the transfer.
100	100	(b) With notice as provided by Section 1023.004, the court
101	101	in which a guardianship is pending, on the court's own motion, may
102	102	transfer the transaction of the business of the guardianship to
103	103	another county if the ward resides in the county to which the
104	104	guardianship is to be transferred.
105	105	SECTION 4. Section 1023.004, Estates Code, is amended to
106	106	read as follows:
107	107	Sec. 1023.004. NOTICE. (a) On filing an application or on
108	108	motion of a court to transfer a guardianship to another county under
109	109	Section 1023.003, the sureties on the bond of the guardian shall be
110	110	cited by personal service to appear and show cause why the
111	111	guardianship [application] should not be transferred [granted].
112	112	(b) If an application is filed by a person other than the
113	113	guardian or if a court made a motion to transfer a guardianship, the
114	114	guardian shall be cited by personal service to appear and show cause
115	115	why the guardianship [application] should not be transferred
116	116	[granted].
117	117	SECTION 5. Section 1023.005, Estates Code, is amended to
118	118	read as follows:
119	119	Sec. 1023.005. COURT ACTION. On hearing an application or
120	120	motion under Section 1023.003, if good cause is not shown to deny
121	121	the transfer [application] and it appears that transfer of the
122	122	guardianship is in the best interests of the ward, the court shall
123	123	enter an order:
124	124	(1) authorizing the transfer on payment on behalf of
125	125	the estate of all accrued costs; and
126	126	(2) requiring that any existing bond of the guardian
127	127	must remain in effect until a new bond has been given or a rider has
128	128	been filed in accordance with Section 1023.010.
129	129	SECTION 6. Section 1203.052, Estates Code, is amended by
130	130	amending Subsection (a) and adding Subsection (a-1) to read as
131	131	follows:
132	132	(a) The court may remove a guardian as provided by
133	133	Subsection (a-1) [on the court's own motion, or on the complaint of
134	134	an interested person, after the guardian has been cited by personal
135	135	service to answer at a time and place set in the notice,] if:
136	136	(1) sufficient grounds appear to support a belief that
137	137	the guardian has misapplied, embezzled, or removed from the state,
138	138	or is about to misapply, embezzle, or remove from the state, any of
139	139	the property entrusted to the guardian's care;
140	140	(2) the guardian fails to return any account or report
141	141	that is required by law to be made;
142	142	(3) the guardian fails to obey a proper order of the
143	143	court that has jurisdiction with respect to the performance of the
144	144	guardian's duties;
145	145	(4) the guardian is proved to have been guilty of gross
146	146	misconduct or mismanagement in the performance of the guardian's
147	147	duties;
148	148	(5) the guardian:
149	149	(A) becomes incapacitated;
150	150	(B) is sentenced to the penitentiary; or
151	151	(C) from any other cause, becomes incapable of
152	152	properly performing the duties of the guardian's trust;
153	153	(6) the guardian has engaged in conduct with respect
154	154	to the ward that would be considered to be abuse, neglect, or
155	155	exploitation, as those terms are defined by Section 48.002, Human
156	156	Resources Code, if engaged in with respect to an elderly or disabled
157	157	person, as defined by that section;
158	158	(7) the guardian neglects to educate or maintain the
159	159	ward as liberally as the means of the ward's estate and the ward's
160	160	ability or condition permit;
161	161	(8) the guardian interferes with the ward's progress
162	162	or participation in programs in the community;
163	163	(9) the guardian fails to comply with the requirements
164	164	of Subchapter G, Chapter 1104;
165	165	(10) the court determines that, because of the
166	166	dissolution of the joint guardians' marriage, the termination of
167	167	the guardians' joint appointment and the continuation of only one
168	168	of the joint guardians as the sole guardian is in the best interest
169	169	of the ward; or
170	170	(11) the guardian would be ineligible for appointment
171	171	as a guardian under Subchapter H, Chapter 1104.
172	172	(a-1) The court may remove a guardian for a reason listed in
173	173	Subsection (a) on the:
174	174	(1) court's own motion, after the guardian has been
175	175	notified, by certified mail, return receipt requested, to answer at
176	176	a time and place set in the notice; or
177	177	(2) complaint of an interested person, after the
178	178	guardian has been cited by personal service to answer at a time and
179	179	place set in the notice.
180	180	SECTION 7. Sections 361.052 and 404.0035, Estates Code, as
181	181	amended by this Act, apply to the estate of a decedent who dies
182	182	before, on, or after the effective date of this Act.
183	183	SECTION 8. Sections 1023.003, 1023.004, 1023.005, and
184	184	1203.052, Estates Code, as amended by this Act, apply to a
185	185	guardianship created before, on, or after the effective date of
186	186	this Act.
187	187	SECTION 9. This Act takes effect September 1, 2017.