86R25453 MTB-F
By: Wray H.B. No. 2782
Substitute the following for H.B. No. 2782:
By: Smith C.S.H.B. No. 2782
A BILL TO BE ENTITLED
AN ACT
relating to decedents' estates, transfer on death deeds, and
matters involving probate courts.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 31.001, Estates Code, is amended to read
as follows:
Sec. 31.001. SCOPE OF "PROBATE PROCEEDING" FOR PURPOSES OF
CODE. The term "probate proceeding," as used in this code,
includes:
(1) the probate of a will, with or without
administration of the estate;
(2) the issuance of letters testamentary and of
administration;
(3) an heirship determination or small estate
affidavit, community property administration, and homestead and
family allowances;
(4) an application, petition, motion, or action
regarding the probate of a will or an estate administration,
including a claim for money owed by the decedent;
(5) a claim arising from an estate administration and
any action brought on the claim;
(6) the settling of a personal representative's
account of an estate and any other matter related to the settlement,
partition, or distribution of an estate; [and]
(7) a will construction suit; and
(8) a will modification or reformation proceeding
under Subchapter J, Chapter 255.
SECTION 2. Chapter 111, Estates Code, is amended by adding
Subchapter C to read as follows:
SUBCHAPTER C. PROVISION OF CERTAIN INFORMATION ON DEATH
Sec. 111.101. DEFINITIONS. In this subchapter:
(1) "Contracting third party" has the meaning assigned
by Section 111.051.
(2) "Deceased party" means a deceased:
(A) party to a multiple-party account governed by
Chapter 113;
(B) owner of property subject to a possible
nontestamentary transfer as described by Section 111.051(1); or
(C) insured under an insurance contract.
Sec. 111.102. PROVISION OF INFORMATION TO PERSONAL
REPRESENTATIVE OF DECEASED PARTY. To the extent not prohibited by
federal or other state law, a contracting third party shall, on
request, provide to the personal representative of a deceased
party's estate all information the contracting third party would
have provided to the deceased party as of the date of the deceased
party's death, if the deceased party had requested the information,
without regard to whether the deceased party's estate has an
interest in the multiple-party account, the property subject to a
possible nontestamentary transfer, or the insurance contract.
SECTION 3. Section 113.252(c), Estates Code, is amended to
read as follows:
(c) Any proceeding by the personal representative of a
deceased party to assert liability under Subsection (b):
(1) may be commenced only if the personal
representative receives a written demand by a surviving spouse, a
creditor, or a person acting on behalf of 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 4. Section 114.102, Estates Code, is amended to
read as follows:
Sec. 114.102. EFFECT OF SUBSEQUENT CONVEYANCE ON TRANSFER
ON DEATH DEED. An otherwise valid transfer on death deed is void as
to any interest in real property that is conveyed by the transferor
during the transferor's lifetime after the transfer on death deed
is executed and recorded if:
(1) a valid instrument conveying the interest or a
memorandum sufficient to give notice of the conveyance of the
interest is recorded in the deed records in the county clerk's
office of the same county in which the transfer on death deed is
recorded; and
(2) the recording of the instrument or memorandum
occurs before the transferor's death.
SECTION 5. Section 201.003(c), Estates Code, is amended to
read as follows:
(c) If the deceased spouse is survived by a child or other
descendant who is not also a child or other descendant of the
surviving spouse, the deceased spouse's undivided one-half
interest in the community estate [one-half of the community estate
is retained by the surviving spouse and the other one-half] passes
to the deceased spouse's children or other descendants. The
descendants inherit only the portion of that estate to which they
would be entitled under Section 201.101. In every case, the
community estate passes charged with the debts against the
community estate.
SECTION 6. Section 202.151, Estates Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) Except as provided by Subsection (c), [Testimony] in a
proceeding to declare heirship, testimony regarding a decedent's
heirs and family history must be taken from two disinterested and
credible witnesses in open court, by deposition in accordance with
Section 51.203, or in accordance with the Texas Rules of Civil
Procedure.
(c) If it is shown to the court's satisfaction in a
proceeding to declare heirship that, after a diligent search was
made, only one disinterested and credible witness can be found who
can make the required proof in the proceeding, the testimony of that
witness must be taken in open court, by deposition in accordance
with Section 51.203, or in accordance with the Texas Rules of Civil
Procedure.
SECTION 7. The heading to Chapter 254, Estates Code, is
amended to read as follows:
CHAPTER 254. [VALIDITY OF] CERTAIN PROVISIONS IN, AND CONTRACTS
RELATING TO, WILLS
SECTION 8. Chapter 254, Estates Code, is amended by adding
Section 254.006 to read as follows:
Sec. 254.006. DESIGNATION OF ADMINISTRATOR. (a) A
testator may grant in a will to an executor named in the will or to
another person identified by name, office, or function the
authority to designate one or more persons to serve as
administrator of the testator's estate.
(b) To be effective, a designation of an administrator of a
testator's estate as authorized by a will under Subsection (a) must
be in writing and acknowledged before an officer authorized to take
acknowledgments and administer oaths.
(c) Unless the will provides otherwise, a person designated
to serve as administrator of a testator's estate as provided by
Subsection (a) may serve only if:
(1) each executor named in the testator's will:
(A) is deceased;
(B) is disqualified to serve as executor; or
(C) indicates by affidavit filed with the county
clerk of the county in which the application for letters
testamentary is filed or, if an application has not been filed, a
county described by Section 33.001(a)(1) or (2) the executor's
inability or unwillingness to serve as executor;
(2) the designation is effective as provided by
Subsection (b); and
(3) the person is not disqualified from serving under
Section 304.003.
(d) Unless the will or designation provides otherwise, a
person designated as administrator of a testator's estate as
provided by this section has the same rights, powers, and duties as
an executor named in the will, including the right to serve as an
independent administrator with the power to sell property without
the need for consent of the distributees under Section 401.002 or
401.006.
SECTION 9. Section 255.152, Estates Code, is amended by
adding Subsection (d) to read as follows:
(d) Unless the will provides otherwise, Subsections (a),
(b), and (c) do not apply to a devise to a charitable trust, as
defined by Section 123.001, Property Code.
SECTION 10. Subchapter J, Chapter 255, Estates Code, is
amended by adding Section 255.456 to read as follows:
Sec. 255.456. JURISDICTION AND TRANSFER OF PROCEEDING. (a)
To the extent that this section conflicts with other provisions of
this title, this section prevails.
(b) In a county in which there is no statutory probate court
or county court at law exercising original probate jurisdiction, if
a personal representative petitions the county court to modify or
reform the terms of a will, the judge of the county court may, on the
judge's own motion, or shall, on the motion of any party to the
proceeding, according to the motion:
(1) request the assignment of a statutory probate
court judge to hear the proceeding, as provided by Section 25.0022,
Government Code; or
(2) transfer the proceeding to the district court,
which may then hear the proceeding as if originally filed in the
district court.
(c) A district court to which a proceeding is transferred
under Subsection (b) has the jurisdiction and authority granted to
a statutory probate court by Subtitle A.
(d) If a party to a modification or reformation proceeding
files a motion for the assignment of a statutory probate court judge
to hear the proceeding before the judge of the county court
transfers the proceeding to a district court under this section,
the county judge shall grant the motion for the assignment of a
statutory probate court judge and may not transfer the proceeding
to the district court unless the party withdraws the motion.
(e) A statutory probate court judge assigned to a proceeding
under this section has the jurisdiction and authority granted to a
statutory probate court by Subtitle A.
(f) In a county in which there is no statutory probate
court, but in which there is a county court at law exercising
original probate jurisdiction, if a personal representative
petitions the county court to modify or reform the terms of a will,
the judge of the county court may, on the judge's own motion, or
shall, on the motion of any party to the proceeding, transfer the
proceeding to the county court at law, which may then hear the
proceeding as if originally filed in the county court at law.
(g) The county court shall continue to exercise
jurisdiction over the management of the estate, other than the
modification or reformation proceeding, until final disposition of
the modification or reformation proceeding is made in accordance
with this subchapter.
(h) On resolution of the modification or reformation
proceeding, the statutory probate court judge assigned to hear the
proceeding or the district court or county court at law to which the
proceeding is transferred under this section shall return the
matter to the county court for further proceedings not inconsistent
with the orders of the statutory probate court, district court, or
county court at law, as applicable.
(i) The clerk of a district court to which a modification or
reformation proceeding is transferred under this section may
perform in relation to the proceeding any function a county clerk
may perform with respect to that type of matter.
SECTION 11. Section 256.051(a), Estates Code, is amended to
read as follows:
(a) An executor named in a will, an administrator designated
as authorized under Section 254.006, 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;
(2) [(3)] lost;
(3) [(4)] destroyed; or
(4) [(5)] outside of this state.
SECTION 12. 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;
(1-a) the last three numbers of each applicant's
driver's license number and social security number, if the
applicant has been issued one [applicable];
(2) the testator's name, domicile, and, if known, age,
on the date of the testator's death;
(2-a) the last three numbers of the testator's
driver's license number and social security number;
(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 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 13. Section 256.053(b), Estates Code, is amended to
read as follows:
(b) A will filed under Subsection (a) must remain in the
custody of the county clerk unless removed from the clerk's
custody:
(1) by a court order under Section 256.202; or
(2) by a court order issued under Subchapter C,
Chapter 33, in which case the clerk shall deliver the will directly
to the clerk of the court to which the probate proceeding is
transferred.
SECTION 14. Section 256.202, Estates Code, is amended to
read as follows:
Sec. 256.202. CUSTODY OF PROBATED WILL. An original will
and the probate of the will shall be deposited in the office of the
county clerk of the county in which the will was probated. The will
and probate of the will shall remain in that office except during a
time the will and the probate of the will are removed for inspection
to another place on an order of the court where the will was
probated. If that court orders the original will to be removed to
another place for inspection:
(1) the person removing the will shall give a receipt
for the will; [and]
(2) the court clerk shall make and retain a copy of the
will; and
(3) the will shall be delivered back to the office of
the county clerk of the county in which the will was probated after
the inspection is completed.
SECTION 15. 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;
(1-a) the last three numbers of each applicant's
driver's license number and social security number, if the
applicant has been issued one [applicable];
(2) the testator's name, domicile, and, if known, age,
on the date of the testator's death;
(2-a) the last three numbers of the testator's
driver's license number and social security number;
(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 16. Chapter 257, Estates Code, is amended by adding
Subchapter D to read as follows:
SUBCHAPTER D. SUBSEQUENT ESTATE ADMINISTRATION
Sec. 257.151. APPOINTMENT OF PERSONAL REPRESENTATIVE AND
OPENING OF ADMINISTRATION AFTER WILL ADMITTED TO PROBATE AS
MUNIMENT OF TITLE. A court order admitting a will to probate as a
muniment of title under this chapter does not preclude the
subsequent appointment of a personal representative and opening of
an administration for the testator's estate if:
(1) an application under Chapter 301 is filed not
later than the fourth anniversary of the testator's death; or
(2) the administration of the testator's estate is
necessary for a reason provided by Section 301.002(b).
Sec. 257.152. COMPUTATION OF CERTAIN PERIODS. If a
personal representative is appointed for a testator's estate after
the testator's will has been admitted to probate as a muniment of
title, the periods prescribed by the following sections begin to
run from the date of qualification of the personal representative
rather than from the date the will is admitted to probate as a
muniment of title:
(1) Section 306.001;
(2) Section 306.002(a)(2)(B)(ii);
(3) Section 308.002; and
(4) Section 308.004.
SECTION 17. 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 administrator designated as authorized
under Section 254.006, 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;
(1-a) the appointment of the designated
administrator; 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;
(iii) a person designated to serve as
administrator under Section 254.006 is disqualified, refuses to
serve, is dead, or resigns; or
(iv) an authorized person other than the
executor has not designated any person to serve as administrator
under Section 254.006 as of the date of the filing of the
application and the applicant notifies the court that the
authorized person has no intention of doing so; or
(B) there is no will.
SECTION 18. Section 301.052(a), Estates Code, is amended to
read as follows:
(a) 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;
(1-a) the last three numbers of:
(A) the applicant's driver's license number, if
the applicant has been issued one [applicable]; and
(B) the applicant's social security number, if
the applicant has been issued one [applicable];
(2) the decedent's name and that the decedent died
intestate;
(2-a) if known by the applicant at the time the
applicant files the application, the last three numbers of the
decedent's driver's license number and social security number;
(3) the fact, date, 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 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 19. Section 301.151, Estates Code, as amended by
Chapters 576 (H.B. 3160) and 949 (S.B. 995), Acts of the 84th
Legislature, Regular Session, 2015, is reenacted and 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 Sections 301.002(b)(1) and
(2) [Section 301.002(b)] with respect to administration necessary
to receive or recover property or to prevent real property of the
estate from becoming a danger [due a decedent's estate], and
Section 501.006 with respect to a foreign will, [except as provided
by Section 301.002(b)(2),] 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 20. Section 304.001(a), Estates Code, is amended to
read as follows:
(a) The court shall grant letters testamentary or of
administration to persons qualified to act, in the following order:
(1) the person named as executor in the decedent's
will;
(1-a) the person designated as administrator as
authorized under Section 254.006;
(2) the decedent's surviving spouse;
(3) the principal devisee of the decedent;
(4) any devisee of the decedent;
(5) the next of kin of the decedent;
(6) a creditor of the decedent;
(7) any person of good character residing in the
county who applies for the letters;
(8) any other person who is not disqualified under
Section 304.003; and
(9) any appointed public probate administrator.
SECTION 21. Section 309.056, Estates Code, is amended by
adding Subsection (e) to read as follows:
(e) Any extension granted by a court of the period in which
to file an inventory, appraisement, and list of claims prescribed
by Section 309.051 is considered an extension of the filing period
for an affidavit under this section.
SECTION 22. Subchapter C, Chapter 351, Estates Code, is
amended by adding Section 351.106 to read as follows:
Sec. 351.106. DIGITAL ASSETS. A personal representative
of a decedent's estate may apply for and obtain a court order,
either at the time the personal representative is appointed or at
any time before the administration of the estate is closed, that:
(1) directs disclosure of the content of electronic
communications of the decedent to the personal representative as
provided by Section 2001.101 and that contains any court finding
described by Section 2001.101(b)(3);
(2) with respect to a catalog of electronic
communications sent or received by the decedent and other digital
assets of the decedent, other than the content of an electronic
communication, contains any court finding described by Section
2001.102(b)(4); or
(3) directs under Section 2001.231 a custodian to
comply with a request to disclose digital assets under Chapter
2001.
SECTION 23. Sections 351.152(a) and (b), Estates Code, are
amended to read as follows:
(a) A [Except as provided by Subsection (b) and subject only
to the approval of the court in which the estate is being
administered, a] personal representative may, without court
approval, convey or enter into a contract to convey for attorney
services a contingent interest in any property sought to be
recovered, not to exceed a one-third interest in the property.
(b) A personal representative, including an independent
executor or independent administrator, may convey or enter into a
contract to convey for attorney services a contingent interest in
any property sought to be recovered under this subchapter in an
amount that exceeds a one-third interest in the property only on the
approval of the court in which the estate is being administered.
The court must approve a contract [entered into] or conveyance
described by [made under] this subsection [section] before an
attorney performs any legal services. A contract entered into or a
conveyance made in violation of this subsection [section] is void
unless the court ratifies or reforms the contract or documents
relating to the conveyance to the extent necessary to make the
contract or conveyance meet the requirements of this subsection
[section].
SECTION 24. The heading to Section 352.052, Estates Code,
is amended to read as follows:
Sec. 352.052. ALLOWANCE FOR DEFENSE OR SUCCESSFUL CONTEST
OF WILL.
SECTION 25. Section 352.052, Estates Code, is amended by
adding Subsection (c) to read as follows:
(c) In this subsection, "interested person" does not
include a creditor or any other having a claim against the estate.
An interested person who, in good faith and with just cause,
successfully prosecutes a proceeding to contest the validity of a
will or alleged will offered for or admitted to probate may be
allowed out of the estate the person's necessary expenses and
disbursements in that proceeding, including reasonable attorney's
fees.
SECTION 26. Sections 355.102(b) and (c), Estates Code, are
amended to read as follows:
(b) Class 1 claims are composed of funeral expenses and
expenses of the decedent's last illness, including claims for
reimbursement of those expenses, for a reasonable amount approved
by the court, not to exceed [a total of] $15,000 for funeral
expenses and $15,000 for expenses of the decedent's last
illness. Any excess shall be classified and paid as other
unsecured claims.
(c) Class 2 claims are composed of:
(1) expenses of administration;
(2) [,] expenses incurred in preserving, safekeeping,
and managing the estate, including fees and expenses awarded under
Section 352.052;
(3) [, and] unpaid expenses of administration awarded
in a guardianship of the decedent; and
(4) for an estate with respect to which a public
probate administrator has taken any action under Chapter 455, court
costs and commissions to which the administrator is entitled under
Subchapter A, Chapter 352.
SECTION 27. Section 355.103, Estates Code, is amended to
read as follows:
Sec. 355.103. PRIORITY OF CERTAIN PAYMENTS. When a
personal representative has estate funds in the representative's
possession, the representative shall pay in the following order:
(1) funeral expenses in an amount not to exceed
$15,000 and expenses of the decedent's last illness[,] in an amount
not to exceed $15,000;
(2) allowances made to the decedent's surviving spouse
and children, or to either the surviving spouse or children;
(3) expenses of administration and expenses incurred
in preserving, safekeeping, and managing the estate; and
(4) other claims against the estate in the order of the
claims' classifications.
SECTION 28. Sections 355.1551(a) and (b), Estates Code, are
amended to read as follows:
(a) A [claim] holder of a claim allowed and approved under
Section 355.151(a)(2) who elects to take possession or sell the
property securing the debt before final maturity in satisfaction of
the [claim] holder's claim must do so within a reasonable time, as
determined by the court.
(b) If the claim holder fails to take possession or sell
secured property within the [a reasonable] time determined by the
court under Subsection (a), on application by the personal
representative, the court may require the sale of the property free
of the lien and apply the proceeds to the payment of the whole debt
in full satisfaction of the claim.
SECTION 29. Sections 356.105(a) and (b), Estates Code, are
amended to read as follows:
(a) A sale of estate personal property shall be reported to
the court. The laws regulating the approval [confirmation] or
disapproval of a sale of real estate apply to the sale, except that
a conveyance is not required.
(b) The court's order approving [confirming] the sale of
estate personal property:
(1) vests the right and title of the intestate's estate
in the purchaser who has complied with the terms of the sale; and
(2) is prima facie evidence that all requirements of
the law in making the sale have been met.
SECTION 30. Subchapters I and J, Chapter 356, Estates Code,
are amended to read as follows:
SUBCHAPTER I. SALE OF REAL ESTATE: PUBLIC AUCTION [SALE]
Sec. 356.401. METHOD OF SALE; REQUIRED NOTICE. (a) A
public sale of real estate of an estate shall be made at public
auction. Except as otherwise provided by Section 356.403(c), the
personal representative of an estate shall advertise a public
auction [sale] of real estate of the estate by a notice published in
the county in which the estate is pending, as provided by this title
for publication of notices or citations. The notice must:
(1) include a reference to the order of sale;
(2) include the time, place, and required terms of
sale; and
(3) briefly describe the real estate to be sold.
(b) The notice required by Subsection (a) is not required to
contain field notes, but if the real estate to be sold is rural
property, the notice must include:
(1) the name of the original survey of the real estate;
(2) the number of acres comprising the real estate;
(3) the location of the real estate in the county; and
(4) any name by which the real estate is generally
known.
Sec. 356.402. COMPLETION [METHOD] OF AUCTION [SALE]. A
public auction [sale] of real estate of an estate shall be completed
on the bid of [made at public auction to] the highest bidder.
Sec. 356.403. TIME AND PLACE OF AUCTION [SALE]. (a) Except
as provided by Subsection (c), a public auction [sale] of real
estate of an estate shall be held [made] at:
(1) the courthouse door in the county in which the real
estate is located, or if the real estate is located in more than one
county, the courthouse door in any county in which the real estate
is located [proceedings are pending]; or
(2) another place in a [that] county described by
Subdivision (1) at which auctions [sales] of real estate are
specifically authorized to be held as designated by the
commissioners court of the county under Section 51.002(a), Property
Code [made].
(b) Except as otherwise provided by this subsection, the
auction [The sale] must occur between 10 a.m. and 4 p.m. on the
first Tuesday of the month after publication of notice has been
completed. If the first Tuesday of the month occurs on January 1 or
July 4, the auction must occur between 10 a.m. and 4 p.m. on the
first Wednesday of the month.
(c) If the court considers it advisable, the court may order
the auction [sale] to be held [made] in the county in which the
proceedings are pending [real estate is located], in which event
notice shall be published both in that county and in the county in
which the real estate is located [proceedings are pending].
Sec. 356.404. CONTINUANCE OF AUCTION [SALE]. (a) A public
auction [sale] of real estate of an estate that is not completed on
the day advertised may be continued from day to day by an oral
public announcement of the continuance made at the conclusion of
the auction [sale] each day.
(b) A continued auction [sale] must occur within the hours
prescribed by Section 356.403(b).
(c) The continuance of an auction [a sale] under this
section shall be shown in the report [of the sale] made to the court
under Section 356.551.
Sec. 356.405. FAILURE OF BIDDER TO COMPLY. (a) If a person
bids off real estate of the estate offered [for sale] at public
auction and fails to comply with the terms of the bid [sale], the
property shall be readvertised and auctioned [sold] without any
further order.
(b) The person defaulting on a bid as described by
Subsection (a) is liable for payment to the personal representative
of the estate, for the estate's benefit, of:
(1) 10 percent of the amount of the bid; and
(2) the amount of any deficiency in price on the second
auction [sale].
(c) The personal representative may recover the amounts
under Subsection (b) by suit in any court in the county in which the
auction [sale] was made that has jurisdiction of the amount
claimed.
SUBCHAPTER J. SALE OF REAL ESTATE: CONTRACT FOR PRIVATE SALE
Sec. 356.451. TERMS OF [MANNER OF] SALE. The personal
representative of an estate may enter into a contract for the [A]
private sale of real estate of the estate [shall be] made in the
manner the court directs in the order of sale. Unless the court
directs otherwise, additional advertising, notice, or citation
concerning the sale is not required.
SECTION 31. Section 356.502, Estates Code, is amended to
read as follows:
Sec. 356.502. PROCEDURE. The procedure for the sale of an
easement or right-of-way authorized under Section 356.501 is the
same as the procedure provided by law for a private sale of estate
real property by contract [at private sale].
SECTION 32. The heading to Subchapter L, Chapter 356,
Estates Code, is amended to read as follows:
SUBCHAPTER L. APPROVAL [CONFIRMATION] OF SALE OF REAL PROPERTY AND
TRANSFER OF TITLE
SECTION 33. Section 356.551, Estates Code, is amended to
read as follows:
Sec. 356.551. REPORT. A successful bid or contract for the
sale of estate real property shall be reported to the court ordering
the sale not later than the 30th day after the date the bid [sale] is
made or the property is placed under contract. The report must:
(1) be sworn to, in writing, and filed with the clerk;
(2) include:
(A) the date of the order of sale;
(B) a description of the property being sold;
(C) the time and place of the auction or date the
property is placed under contract [sale];
(D) the purchaser's name;
(E) the amount of the successful bid or the
purchase price for [which] each parcel of property or interest in
property auctioned or placed under contract [was sold];
(F) the terms of the sale;
(G) whether the proposed sale of the property was
made at public auction or by contract [privately]; and
(H) whether the purchaser is ready to comply with
the order of sale; and
(3) be noted on the probate docket.
SECTION 34. Section 356.552, Estates Code, is amended to
read as follows:
Sec. 356.552. ACTION OF COURT ON REPORT [OF SALE]. After
the expiration of five days from the date a report [of sale] is
filed under Section 356.551, the court shall:
(1) inquire into the manner in which the auction or
contract described in the report [sale] was made;
(2) hear evidence in support of or against the report;
and
(3) determine the sufficiency or insufficiency of the
personal representative's general bond, if any has been required
and given.
SECTION 35. Section 356.553, Estates Code, is amended to
read as follows:
Sec. 356.553. APPROVAL [CONFIRMATION] OF SALE WHEN BOND NOT
REQUIRED. If the personal representative of an estate is not
required by this title to give a general bond, the court may approve
[confirm] the sale of estate real property in the manner provided by
Section 356.556(a) if the court finds that the sale is satisfactory
and made in accordance with law.
SECTION 36. Sections 356.554(a), (b), and (c), Estates
Code, are amended to read as follows:
(a) If the personal representative of an estate is required
by this title to give a general bond, before the court approves
[confirms] any sale of real estate, the court shall determine
whether the bond is sufficient to protect the estate after the sale
proceeds are received.
(b) If the court finds that the general bond is sufficient,
the court may approve [confirm] the sale as provided by Section
356.556(a).
(c) If the court finds that the general bond is
insufficient, the court may not approve [confirm] the sale until
the general bond is increased to the amount required by the court,
or an additional bond is given, and approved by the court.
SECTION 37. Section 356.556, Estates Code, is amended to
read as follows:
Sec. 356.556. APPROVAL [CONFIRMATION] OR DISAPPROVAL
ORDER. (a) If the court is satisfied that the proposed sale of real
property [a sale] reported under Section 356.551 is [was] for a fair
price, properly made, and in conformity with law, and the court has
approved any increased or additional bond that the court found
necessary to protect the estate, the court shall enter an order:
(1) approving [confirming] the sale;
(2) showing conformity with this chapter;
(3) detailing the terms of the sale; and
(4) authorizing the personal representative to convey
the property on the purchaser's compliance with the terms of the
sale.
(b) If the court is not satisfied that the proposed sale of
real property is [sale was] for a fair price, properly made, and in
conformity with law, the court shall enter an order setting aside
the bid or contract [sale] and ordering a new sale to be made, if
necessary.
(c) The court's action in approving [confirming] or
disapproving a report under Section 356.551 [of a sale] has the
effect of a final judgment. Any person interested in the estate or
in the sale is entitled to have an order entered under this section
reviewed as in other final judgments in probate proceedings.
SECTION 38. Section 356.557, Estates Code, is amended to
read as follows:
Sec. 356.557. DEED. Real estate of an estate that is sold
shall be conveyed by a proper deed that refers to and identifies the
court order approving [confirming] the sale. The deed:
(1) vests in the purchaser all right and title of the
estate to, and all interest of the estate in, the property; and
(2) is prima facie evidence that the sale has met all
applicable requirements of the law.
SECTION 39. Section 356.558(a), Estates Code, is amended to
read as follows:
(a) After the court has approved [confirmed] a sale and the
purchaser has complied with the terms of the sale, the personal
representative of the estate shall promptly execute and deliver to
the purchaser a proper deed conveying the property.
SECTION 40. Section 401.005, Estates Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) If a decedent's will does not contain language
directing that no bond or security be required of a person named as
executor, unless the court finds that it would not be in the best
interest of the estate, the court may waive the requirement of a
bond if all of the distributees of the decedent agree to the waiver
of bond in:
(1) the application for probate of the decedent's
will; or
(2) one or more separate documents consenting to the
application for probate of the decedent's will.
SECTION 41. Subchapter A, Chapter 402, Estates Code, is
amended by adding Section 402.003 to read as follows:
Sec. 402.003. DIGITAL ASSETS. The court, either at the time
the independent executor of an estate is appointed or at any time
before the administration of the estate is closed, may enter an
order that:
(1) directs disclosure of the content of electronic
communications of the decedent to the independent executor as
provided by Section 2001.101 and that contains any court finding
described by Section 2001.101(b)(3);
(2) with respect to a catalog of electronic
communications sent or received by the decedent and other digital
assets of the decedent, other than the content of an electronic
communication, contains any court finding described by Section
2001.102(b)(4); or
(3) directs under Section 2001.231 a custodian to
comply with a request to disclose digital assets under Chapter
2001.
SECTION 42. Subchapter B, Chapter 403, Estates Code, is
amended by adding Section 403.05851 to read as follows:
Sec. 403.05851. OTHER CLAIM PROCEDURES APPLY TO MEDICAID
ESTATE RECOVERY PROGRAM CLAIM. The procedural provisions of this
title governing creditor claims in supervised administrations
apply to a claim of the Medicaid estate recovery program under
Section 531.077, Government Code, in an independent
administration.
SECTION 43. Section 455.008(a), Estates Code, is amended to
read as follows:
(a) If gross assets of an estate do not exceed 20 [10]
percent of the maximum amount authorized for a small estate
affidavit under Section 205.001, the public probate administrator
may act without issuance of letters testamentary or of
administration if the court approves a statement of administration
stating:
(1) the name and domicile of the decedent;
(2) the date and place of death of the decedent; and
(3) the name, address, and relationship of each known
heir or devisee of the decedent.
SECTION 44. Section 455.009, Estates Code, is amended by
adding Subsection (a-1) to read as follows:
(a-1) The public probate administrator may file the
affidavit as provided by Subsection (a) after the public probate
administrator has acted under Section 455.007 or 455.008.
SECTION 45. Section 455.012, Estates Code, is amended to
read as follows:
Sec. 455.012. DEPOSIT OF FUNDS IN COURT REGISTRY [INTO THE
COUNTY TREASURY]. The public probate administrator shall deposit
all funds coming into the custody of the administrator in the court
registry, except as provided by Section 455.003 [county treasury].
Funds deposited must be disbursed [dispersed] at the direction of
the public probate administrator and according to an order issued
by the statutory probate court judge who appointed the
administrator [the guidelines of the county treasurer or auditor].
SECTION 46. Section 25.002201(b), Government Code, is
amended to read as follows:
(b) If the judge who is the subject of an order of recusal or
disqualification is the presiding judge of the statutory probate
courts, the chief justice of the supreme court shall assign [a
regional presiding judge,] a statutory probate judge[,] or a former
or retired judge of a statutory probate court to hear the case.
SECTION 47. Section 25.00255(a), Government Code, is
amended to read as follows:
(a) Notwithstanding any conflicting provision in the Texas
Rules of Civil Procedure, Rules 18a and 18b, Texas Rules of Civil
Procedure, apply to the recusal and disqualification of a statutory
probate court judge except as otherwise provided by this section or
another provision of this subchapter. The presiding judge:
(1) has the authority and shall perform the functions
and duties of the presiding judge of the administrative judicial
region under the rules, including the duty to hear or rule on a
referred motion of recusal or disqualification or, subject to
Subdivisions (2) and (3) [and to Section 25.002201], assign a judge
to hear and rule on a referred motion of recusal or
disqualification;
(2) may assign a presiding judge of the administrative
judicial region to hear and rule on a referred motion of recusal or
disqualification only with the consent of the presiding judge of
the administrative judicial region; [and]
(3) may not assign a judge of a statutory probate court
located in the same county as the statutory probate court served by
the judge who is the subject of the motion of recusal or
disqualification; and
(4) if the presiding judge is the subject of the motion
of recusal or disqualification, shall sign and file with the clerk
an order referring the motion to the chief justice of the supreme
court for assignment of a presiding judge of an administrative
judicial region, a statutory probate court judge, or a former or
retired judge of a statutory probate court to hear and rule on the
motion, subject to Subdivisions (2) and (3).
SECTION 48. The following provisions of the Estates Code
are repealed:
(1) Section 114.002(b); and
(2) Subchapter D, Chapter 114.
SECTION 49. (a) Subchapter C, Chapter 111, Estates Code, as
added by this Act, applies to an agreement, account, contract, or
designation made or entered into before, on, or after the effective
date of this Act, regardless of the date of the deceased party's
death.
(b) Sections 31.001 and 113.252(c), Estates Code, as
amended by this Act, apply to a proceeding commenced on or after the
effective date of this Act. A proceeding commenced before the
effective date of this Act 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.
(c) The repeal of Subchapter D, Chapter 114, Estates Code,
by this Act does not affect the validity of a transfer on death deed
or a cancellation of a transfer on death deed executed before, on,
or after the effective date of this Act.
(d) Section 202.151, Estates Code, as amended by this Act,
applies only to a proceeding to declare heirship commenced on or
after the effective date of this Act. A proceeding to declare
heirship commenced before that date is governed by the law in effect
on the date the proceeding was commenced, and the former law is
continued in effect for that purpose.
(e) Section 255.456, Estates Code, as added by this Act,
applies only to a petition filed on or after the effective date of
this Act. A petition filed before the effective date of this Act 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.
(f) Sections 256.052(a), 256.053(b), and 257.051(a),
Estates Code, as amended by this Act, and Section 401.005(a-1),
Estates Code, as added by this Act, apply only to an application for
the probate of a will filed on or after the effective date of this
Act. An application for the probate of a will 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.
(g) Section 301.052(a), Estates Code, as amended by this
Act, applies only to an application for letters of administration
filed on or after the effective date of this Act. An application
for letters of administration filed before the effective date of
this Act 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.
(h) Sections 309.056(e), 351.106, and 402.003, Estates
Code, as added by this Act, apply only to the administration of a
decedent's estate that is pending or commenced on or after the
effective date of this Act.
(i) Sections 351.152(a) and (b), Estates Code, as amended by
this Act, apply only to a contract entered into or a conveyance made
on or after the effective date of this Act. A contract entered into
or a conveyance made before the effective date of this Act is
governed by the law in effect on the date the contract was entered
into or the conveyance was made, and the former law is continued in
effect for that purpose.
(j) Sections 352.052(c), 403.05851, and 455.009(a-1),
Estates Code, as added by this Act, and Subchapters I and J, Chapter
356, and Sections 255.152, 355.102(b) and (c), 355.103, 355.1551(a)
and (b), 356.502, 356.551, 356.552, 356.553, 356.554(a), (b), and
(c), 356.556, 356.557, 356.558(a), 455.008(a), and 455.012,
Estates Code, as amended 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.
(k) Section 25.00255(a), Government Code, as amended by
this Act, applies only to a motion of recusal or disqualification
made on or after the effective date of this Act. A motion of recusal
or disqualification made before the effective date of this Act is
governed by the law in effect on the date the motion was made, and
the former law is continued in effect for that purpose.
SECTION 50. This Act takes effect September 1, 2019.