Bill Text: TX HR2690 | 2011-2012 | 82nd Legislature | Introduced
Bill Title: Suspending limitations on conference committee jurisdiction, S.B. No. 1198.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-05-29 - 3 hr. notice-for consideration [HR2690 Detail]
Download: Texas-2011-HR2690-Introduced.html
82R31953 MTB-D | ||
By: Hartnett | H.R. No. 2690 |
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BE IT RESOLVED by the House of Representatives of the State of | ||
Texas, 82nd Legislature, Regular Session, 2011, That House Rule 13, | ||
Section 9(a), be suspended in part as provided by House Rule 13, | ||
Section 9(f), to enable the conference committee appointed to | ||
resolve the differences on Senate Bill 1198 (decedents' estates) to | ||
consider and take action on the following matters: | ||
(1) House Rule 13, Section 9(a)(4), is suspended to permit | ||
the committee to add text on matters which are not included in | ||
either the house or senate version of the bill by adding the | ||
following sections to the bill: | ||
SECTION 1.08. Section 34A, Texas Probate Code, is amended | ||
to read as follows: | ||
Sec. 34A. ATTORNEYS AD LITEM. (a) Except as provided by | ||
Section 53(c) of this code, the judge of a probate court may appoint | ||
an attorney ad litem in any probate proceeding to represent the | ||
interests of: | ||
(1) a person having a legal disability; | ||
(2) [ |
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(3) [ |
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(4) [ |
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(5) an unknown or missing person entitled to property | ||
deposited in an account in the court's registry under Section | ||
408(b) of this code [ |
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(b) Subject to Subsection (c) of this section, an [ |
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attorney ad litem appointed under this section is entitled to | ||
reasonable compensation for services in the amount set by the | ||
court. The court shall: | ||
(1) tax the compensation [ |
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the probate proceeding; or | ||
(2) for an attorney ad litem appointed to represent | ||
the interests of an unknown or missing person described by | ||
Subsection (a)(5) of this section, order that the compensation be | ||
paid from money in the account described by that subdivision. | ||
(c) The court order appointing an attorney ad litem to | ||
represent the interests of an unknown or missing person described | ||
by Subsection (a)(5) of this section must require the attorney ad | ||
litem to conduct a search for the person. Compensation paid under | ||
Subsection (b) of this section to the attorney ad litem may not | ||
exceed 10 percent of the amount on deposit in the account described | ||
by Subsection (a)(5) of this section on the date: | ||
(1) the attorney ad litem reports to the court the | ||
location of the previously unknown or missing person; or | ||
(2) the money in the account is paid to the comptroller | ||
as provided by Section 427 of this code. | ||
SECTION 1.13. Subsections (a) and (b), Section 53C, Texas | ||
Probate Code, are amended to read as follows: | ||
(a) This section applies in a proceeding to declare heirship | ||
of a decedent only with respect to an individual who[ |
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decedent[ |
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biological child of the decedent[ |
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(b) The presumption under Section 160.505, Family Code, | ||
that applies in establishing a parent-child relationship also | ||
applies in determining heirship in the probate court using the | ||
results of genetic testing ordered with respect to an individual | ||
described by Subsection (a) of this section, and the presumption | ||
may be rebutted in the same manner provided by Section 160.505, | ||
Family Code. [ |
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SECTION 1.17. Section 77, Texas Probate Code, is amended to | ||
read as follows: | ||
Sec. 77. ORDER OF PERSONS QUALIFIED TO SERVE. Letters | ||
testamentary or of administration shall be granted to persons who | ||
are qualified to act, in the following order: | ||
(a) To the person named as executor in the will of the | ||
deceased. | ||
(b) To the surviving husband or wife. | ||
(c) To the principal devisee or legatee of the testator. | ||
(d) To any devisee or legatee of the testator. | ||
(e) To the next of kin of the deceased, the nearest in order | ||
of descent first, and so on, and next of kin includes a person and | ||
his descendants who legally adopted the deceased or who have been | ||
legally adopted by the deceased. | ||
(f) To a creditor of the deceased. | ||
(g) To any person of good character residing in the county | ||
who applies therefor. | ||
(h) To any other person not disqualified under the following | ||
section [ |
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letters shall be granted to the person [ |
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judgment of the court, is most likely to administer the estate | ||
advantageously, or letters [ |
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more of those persons [ |
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SECTION 1.32. Part 1, Chapter VIII, Texas Probate Code, is | ||
amended by adding Section 254 to read as follows: | ||
Sec. 254. PENALTY FOR FAILURE TO TIMELY FILE INVENTORY, | ||
APPRAISEMENT, AND LIST OF CLAIMS OR AFFIDAVIT IN LIEU OF. (a) This | ||
section applies only to a personal representative, including an | ||
independent executor or administrator, who does not file an | ||
inventory, appraisement, and list of claims or affidavit in lieu of | ||
the inventory, appraisement, and list of claims, as applicable, | ||
within the period prescribed by Section 250 of this code or any | ||
extension granted by the court. | ||
(b) Any person interested in the estate on written | ||
complaint, or the court on the court's own motion, may have a | ||
personal representative to whom this section applies cited to file | ||
the inventory, appraisement, and list of claims or affidavit in | ||
lieu of the inventory, appraisement, and list of claims, as | ||
applicable, and show cause for the failure to timely file. | ||
(c) If the personal representative does not file the | ||
inventory, appraisement, and list of claims or affidavit in lieu of | ||
the inventory, appraisement, and list of claims, as applicable, | ||
after being cited or does not show good cause for the failure to | ||
timely file, the court on hearing may fine the representative in an | ||
amount not to exceed $1,000. | ||
(d) The personal representative and the representative's | ||
sureties, if any, are liable for any fine imposed under this section | ||
and for all damages and costs sustained by the representative's | ||
failure. The fine, damages, and costs may be recovered in any court | ||
of competent jurisdiction. | ||
SECTION 1.40. Section 407, Texas Probate Code, is amended | ||
to read as follows: | ||
Sec. 407. CITATION AND NOTICE UPON PRESENTATION OF ACCOUNT | ||
FOR FINAL SETTLEMENT. Upon the filing of an account for final | ||
settlement by temporary or permanent personal representatives of | ||
the estates of decedents, citation shall contain a statement that | ||
such final account has been filed, the time and place when it will | ||
be considered by the court, and a statement requiring the person or | ||
persons cited to appear and contest the same if they see proper. | ||
Such citation shall be issued by the county clerk to the persons and | ||
in the manner set out below. | ||
1. Citation [ |
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each heir or beneficiary of the decedent by certified mail, return | ||
receipt requested, unless another method of service [ |
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2. If the court deems further additional notice | ||
necessary, it shall require the same by written order. In its | ||
discretion, the court may allow the waiver of citation [ |
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an account for final settlement in a proceeding concerning a | ||
decedent's estate. | ||
SECTION 1.41. Subsections (b), (c), and (d), Section 408, | ||
Texas Probate Code, are amended to read as follows: | ||
(b) Distribution of Remaining Property. Upon final | ||
settlement of an estate, if there be any of such estate remaining in | ||
the hands of the personal representative, the court shall order | ||
that a partition and distribution be made among the persons | ||
entitled to receive such estate. The court shall order the | ||
representative to deposit in an account in the court's registry any | ||
remaining estate property that is money and to which a person who is | ||
unknown or missing is entitled. In addition, the court shall order | ||
the representative to sell, on terms the court determines are best, | ||
remaining estate property that is not money and to which a person | ||
who is unknown or missing is entitled. The court shall order the | ||
representative to deposit the sale proceeds in an account in the | ||
court's registry. The court shall hold money deposited in an | ||
account under this subsection until the court renders: | ||
(1) an order requiring money in the account to be paid | ||
to the previously unknown or missing person who is entitled to the | ||
money; or | ||
(2) another order regarding the disposition of the | ||
money. | ||
(c) Discharge of Representative When No Property Remains. | ||
If, upon such settlement, there be none of the estate remaining in | ||
the hands of the representative, the representative [ |
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discharged from the representative's [ |
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ordered closed. | ||
(d) Discharge When Estate Fully Administered. Whenever the | ||
representative of an estate has fully administered the same in | ||
accordance with this code [ |
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the representative's [ |
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representative [ |
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the representative's [ |
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to receive the same, it shall be the duty of the court to enter an | ||
order discharging such representative from the representative's | ||
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SECTION 1.42. Section 427, Texas Probate Code, is amended | ||
to read as follows: | ||
Sec. 427. WHEN ESTATES TO BE PAID INTO STATE TREASURY. If | ||
any person entitled to a portion of an estate, except a resident | ||
minor without a guardian, does [ |
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court's registry under Section 408(b) of this code, from the | ||
executor or administrator within six months after an order of court | ||
approving the report of commissioners of partition, or within six | ||
months after the settlement of the final account of an executor or | ||
administrator, as the case may be, the court by written order shall | ||
require the executor or administrator to pay so much of said portion | ||
as is in money to the comptroller; and such portion as is in other | ||
property the court [ |
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to sell on such terms as the court thinks best, and, when the | ||
proceeds of such sale are collected, the court shall order the same | ||
to be paid to the comptroller, in all such cases allowing the | ||
executor or administrator reasonable compensation for the | ||
executor's or administrator's [ |
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proceeds of the sale is governed by Section 433 of this code [ |
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SECTION 2.06. Section 53.104, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 53.104. APPOINTMENT OF ATTORNEYS AD LITEM. (a) Except | ||
as provided by Section 202.009(b), the judge of a probate court may | ||
appoint an attorney ad litem in any probate proceeding to represent | ||
the interests of: | ||
(1) a person who has a legal disability; | ||
(2) a nonresident; | ||
(3) an unborn or unascertained person; [ |
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(4) an unknown or missing heir; or | ||
(5) an unknown or missing person entitled to property | ||
deposited in an account in the court's registry under Section | ||
362.011(b). | ||
(b) Subject to Subsection (c), an [ |
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appointed under this section is entitled to reasonable compensation | ||
for services provided in the amount set by the court. The court | ||
shall: | ||
(1) tax the compensation[ |
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probate proceeding; or | ||
(2) for an attorney ad litem appointed to represent | ||
the interests of an unknown or missing person described by | ||
Subsection (a)(5), order that the compensation be paid from money | ||
in the account described by that subdivision. | ||
(c) The court order appointing an attorney ad litem to | ||
represent the interests of an unknown or missing person described | ||
by Subsection (a)(5) must require the attorney ad litem to conduct a | ||
search for the person. Compensation paid under Subsection (b) to | ||
the attorney ad litem may not exceed 10 percent of the amount on | ||
deposit in the account described by Subsection (a)(5) on the date: | ||
(1) the attorney ad litem reports to the court the | ||
location of the previously unknown or missing person; or | ||
(2) the money in the account is paid to the comptroller | ||
as provided by Section 551.001. | ||
SECTION 2.21. Subchapter A, Chapter 202, Estates Code, as | ||
effective January 1, 2014, is amended by adding Section 202.0025 to | ||
read as follows: | ||
Sec. 202.0025. ACTION BROUGHT AFTER DECEDENT'S DEATH. | ||
Notwithstanding Section 16.051, Civil Practice and Remedies Code, a | ||
proceeding to declare heirship of a decedent may be brought at any | ||
time after the decedent's death. | ||
SECTION 2.24. Sections 204.151 and 204.152, Estates Code, | ||
as effective January 1, 2014, are amended to read as follows: | ||
Sec. 204.151. APPLICABILITY OF SUBCHAPTER. This subchapter | ||
applies in a proceeding to declare heirship of a decedent only with | ||
respect to an individual who[ |
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claims[ |
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the decedent[ |
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Sec. 204.152. PRESUMPTION; [ |
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Family Code, that applies in establishing a parent-child | ||
relationship also applies in determining heirship in the probate | ||
court using the results of genetic testing ordered with respect to | ||
an individual described by Section 204.151, and the presumption may | ||
be rebutted in the same manner provided by Section 160.505, Family | ||
Code. [ |
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SECTION 2.37. Subsection (c), Section 304.001, Estates | ||
Code, as effective January 1, 2014, is amended to read as follows: | ||
(c) If persons [ |
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administration [ |
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(1) shall grant the letters to the person [ |
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who, in the judgment of the court, is most likely to administer the | ||
estate advantageously; or | ||
(2) may grant the letters to two or more of those | ||
persons [ |
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SECTION 2.57. Section 362.005, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 362.005. CITATION AND NOTICE ON PRESENTATION OF | ||
ACCOUNT. (a) On the presentation of an account for final settlement | ||
by a temporary or permanent personal representative, the county | ||
clerk shall issue citation to the persons and in the manner provided | ||
by Subsection (b) [ |
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(b) Citation issued under Subsection (a) must: | ||
(1) contain: | ||
(A) [ |
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settlement has been presented; | ||
(B) [ |
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consider the account; [ |
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(C) [ |
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to appear and contest the account, if the person wishes to contest | ||
the account; and | ||
(D) a copy of the account for final settlement; | ||
and | ||
(2) be given[ |
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heir or beneficiary of the decedent by certified mail, return | ||
receipt requested, unless the court by written order directs | ||
another method of service [ |
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(c) [ |
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additional notice if the court considers the additional notice | ||
necessary. | ||
(d) [ |
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concerning a decedent's estate. | ||
SECTION 2.58. Section 362.011, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 362.011. PARTITION AND DISTRIBUTION OF ESTATE; DEPOSIT | ||
IN COURT'S REGISTRY. (a) If, on final settlement of an estate, any | ||
of the estate remains in the personal representative's possession, | ||
the court shall order that a partition and distribution be made | ||
among the persons entitled to receive that part of the estate. | ||
(b) The court shall order the personal representative to | ||
deposit in an account in the court's registry any remaining estate | ||
property that is money and to which a person who is unknown or | ||
missing is entitled. In addition, the court shall order the | ||
representative to sell, on terms the court determines are best, | ||
remaining estate property that is not money and to which a person | ||
who is unknown or missing is entitled. The court shall order the | ||
representative to deposit the sale proceeds in an account in the | ||
court's registry. The court shall hold money deposited in an | ||
account under this subsection until the court renders: | ||
(1) an order requiring money in the account to be paid | ||
to the previously unknown or missing person who is entitled to the | ||
money; or | ||
(2) another order regarding the disposition of the | ||
money. | ||
SECTION 2.60. Subsection (a), Section 551.001, Estates | ||
Code, as effective January 1, 2014, is amended to read as follows: | ||
(a) The court, by written order, shall require the executor | ||
or administrator of an estate to pay to the comptroller as provided | ||
by this subchapter the share of that estate of a person entitled to | ||
that share who does not demand the share, including any portion | ||
deposited in an account in the court's registry under Section | ||
362.011(b), from the executor or administrator within six months | ||
after the date of, as applicable: | ||
(1) a court order approving the report of the | ||
commissioners of partition made under Section 360.154; or | ||
(2) the settlement of the final account of the | ||
executor or administrator. | ||
Explanation: The addition is necessary to add provisions | ||
relating to attorneys ad litem, proceedings to declare heirship, | ||
granting of letters testamentary or of administration, filing of | ||
inventories, appraisements, and lists of claims, citation and | ||
notice on presentation of accounts for final settlement, | ||
distribution of remaining estate property and discharge of | ||
representatives on final settlement of estates, and estates to be | ||
paid into the state treasury. | ||
(2) House Rule 13, Sections 9(a)(1) and (4), are suspended | ||
to permit the committee to change text which is not in disagreement | ||
and to add text on a matter which is not included in either the house | ||
or senate version of the bill in proposed SECTION 1.11 of the bill, | ||
in amended Section 48, Texas Probate Code, to read as follows: | ||
SECTION 1.11. Section 48, Texas Probate Code, is amended by | ||
amending Subsection (a) and adding Subsection (d) to read as | ||
follows: | ||
. . . | ||
(d) Notwithstanding Section 16.051, Civil Practice and | ||
Remedies Code, a proceeding to declare heirship of a decedent may be | ||
brought at any time after the decedent's death. | ||
Explanation: The change is necessary to specify when a | ||
proceeding to declare heirship may be brought. | ||
(3) House Rule 13, Sections 9(a)(1), (3), and (4), are | ||
suspended to permit the committee to change text which is not in | ||
disagreement, to add text on a matter which is not in disagreement, | ||
and to add text on a matter which is not included in either the house | ||
or senate version of the bill in proposed SECTION 1.12 of the bill, | ||
in amended Subsection (a), Section 49, Texas Probate Code, to read | ||
as follows: | ||
SECTION 1.12. Subsection (a), Section 49, Texas Probate | ||
Code, is amended to read as follows: | ||
(a) Such proceedings may be instituted and maintained under | ||
a circumstance specified in Section 48(a) of this code [ |
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representative of the estate of such decedent, by a party seeking | ||
the appointment of an independent administrator under Section 145 | ||
of this code, by the trustee of a trust holding assets for the | ||
benefit of the decedent, by any person or persons claiming to be a | ||
secured or unsecured creditor or the owner of the whole or a part of | ||
the estate of such decedent, or by the guardian of the estate of a | ||
ward, if the proceedings are instituted and maintained in the | ||
probate court in which the proceedings for the guardianship of the | ||
estate were pending at the time of the death of the ward. In such a | ||
case an application shall be filed in a proper court stating the | ||
following information: | ||
(1) the name of the decedent and the time and place of | ||
death; | ||
(2) the names and residences of the decedent's heirs, | ||
the relationship of each heir to the decedent, and the true interest | ||
of the applicant and each of the heirs in the estate of the decedent | ||
or in the trust, as applicable; | ||
(3) all the material facts and circumstances within | ||
the knowledge and information of the applicant that might | ||
reasonably tend to show the time or place of death or the names or | ||
residences of all heirs, if the time or place of death or the names | ||
or residences of all the heirs are not definitely known to the | ||
applicant; | ||
(4) a statement that all children born to or adopted by | ||
the decedent have been listed; | ||
(5) a statement that each marriage of the decedent has | ||
been listed with the date of the marriage, the name of the spouse, | ||
and if the marriage was terminated, the date and place of | ||
termination, and other facts to show whether a spouse has had an | ||
interest in the property of the decedent; | ||
(6) whether the decedent died testate and if so, what | ||
disposition has been made of the will; | ||
(7) a general description of all the real and personal | ||
property belonging to the estate of the decedent or held in trust | ||
for the benefit of the decedent, as applicable; and | ||
(8) an explanation for the omission of any of the | ||
foregoing information that is omitted from the application. | ||
Explanation: The change is necessary to authorize persons | ||
claiming to be unsecured creditors to institute proceedings to | ||
declare heirship. | ||
(4) House Rule 13, Sections 9(a)(1), (2), and (4), are | ||
suspended to permit the committee to change text which is not in | ||
disagreement, omit text which is not in disagreement, and add text | ||
on a matter which is not included in either the house or senate | ||
version of the bill in proposed SECTION 1.28 of the bill, in amended | ||
Section 149C, Texas Probate Code, to read as follows: | ||
SECTION 1.28. Section 149C, Texas Probate Code, is amended | ||
by amending Subsection (a) and adding Subsections (a-1) and (a-2) | ||
to read as follows: | ||
(a) The [ |
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person, after the independent executor has been cited by personal | ||
service to answer at a time and place fixed in the notice, may | ||
remove an independent executor when: | ||
(1) the independent executor fails to return within | ||
ninety days after qualification, unless such time is extended by | ||
order of the court, either an inventory of the property of the | ||
estate and 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; | ||
(2) sufficient grounds appear to support belief that | ||
the independent executor has misapplied or embezzled, or that the | ||
independent executor is about to misapply or embezzle, all or any | ||
part of the property committed to the independent executor's care; | ||
(3) the independent executor fails to make an | ||
accounting which is required by law to be made; | ||
(4) the independent executor fails to timely file the | ||
affidavit or certificate required by Section 128A of this code; | ||
(5) the independent executor is proved to have been | ||
guilty of gross misconduct or gross mismanagement in the | ||
performance of the independent executor's duties; [ |
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(6) the independent executor becomes an incapacitated | ||
person, or is sentenced to the penitentiary, or from any other cause | ||
becomes incapable of [ |
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performing the independent executor's fiduciary duties; or | ||
(7) the independent executor becomes incapable of | ||
properly performing the independent executor's fiduciary duties | ||
due to a material conflict of interest. | ||
(a-1) The court, on its own motion or on the motion of any | ||
interested person, and after the independent executor has been | ||
cited by certified mail, return receipt requested, to answer at a | ||
time and place stated in the citation, may remove an independent | ||
executor who is appointed under the provisions of this code if the | ||
independent executor: | ||
(1) subject to Subsection (a-2)(1) of this section, | ||
fails to qualify in the manner and period required by law; | ||
(2) subject to Subsection (a-2)(2) of this section, | ||
fails to return not later than the 90th day after the date the | ||
independent executor qualifies 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 the period is extended by court order; | ||
(3) cannot be served with notices or other processes | ||
because the: | ||
(A) independent executor's location is unknown; | ||
(B) independent executor is eluding service; or | ||
(C) independent executor is a nonresident of this | ||
state who does not have a resident agent to accept service of | ||
process in a probate proceeding or other action relating to the | ||
estate; or | ||
(4) subject to Subsection (a-2)(3) of this section, | ||
has misapplied, embezzled, or removed from the state, or is about to | ||
misapply, embezzle, or remove from the state, all or any part of the | ||
property committed to the independent executor's care. | ||
(a-2) The court may remove an independent executor: | ||
(1) under Subsection (a-1)(1) of this section only if | ||
the independent executor fails to qualify on or before the 30th day | ||
after the date the court sends a notice 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, notifying the independent executor and attorney of the | ||
court's intent to remove the independent executor for failure to | ||
qualify in the manner and period required by law; | ||
(2) under Subsection (a-1)(2) of this section only if | ||
the independent executor fails to file an inventory and list of | ||
claims or an affidavit in lieu of the inventory, appraisement, and | ||
list of claims as required by law on or before the 30th day after the | ||
date the court sends a notice 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, | ||
notifying the independent executor and attorney of the court's | ||
intent to remove the independent executor for failure to file the | ||
inventory and list of claims or affidavit; and | ||
(3) under Subsection (a-1)(4) of this section only on | ||
presentation of clear and convincing evidence given under oath of | ||
the misapplication, embezzlement, or removal from this state of | ||
property as described by that subdivision. | ||
Explanation: The change is necessary to make various | ||
revisions to the procedures for removal of independent executors. | ||
(5) House Rule 13, Sections 9(a)(1) and (4), are suspended | ||
to permit the committee to change text which is not in disagreement | ||
and to add text on a matter which is not included in either the house | ||
or senate version of the bill in proposed SECTION 1.49 of the bill, | ||
in Subsection (a) of that section, to read as follows: | ||
(a) Subsection (c), Section 48, Subsection (c), Section | ||
53C, Section 70, and Subsection (f), Section 251, Texas Probate | ||
Code, are repealed. | ||
Explanation: The change is necessary to add a repeal of | ||
Subsection (c), Section 53C, Texas Probate Code. | ||
(6) House Rule 13, Section 9(a)(4), is suspended to permit | ||
the committee to add text on a matter which is not included in | ||
either the house or senate version of the bill in proposed SECTION | ||
1.50 of the bill to read as follows: | ||
(i) Sections 34A, 407, 408, and 427, Texas Probate Code, as | ||
amended by this article, and Section 254, Texas Probate Code, as | ||
added by this article, apply to the estate of a decedent that is | ||
pending or commenced on or after September 1, 2011, regardless of | ||
the date of the decedent's death. | ||
(j) The changes in law made by this article to Section 77, | ||
Texas Probate Code, apply only to an application for the grant of | ||
letters testamentary or of administration of a decedent's estate | ||
filed on or after September 1, 2011. An application for the grant | ||
of letters testamentary or of 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. | ||
(k) The changes in law made by this article to Subsection | ||
(a), Section 83, Texas Probate Code, apply only to an application | ||
for the probate of a will or administration of the estate of a | ||
decedent that is pending or filed on or after September 1, 2011. | ||
(l) The changes in law made by this article to Subsections | ||
(a) and (b), Section 53C, Texas Probate Code, apply only to a | ||
proceeding to declare heirship commenced on or after September 1, | ||
2011. 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. | ||
Explanation: The change is necessary to add transition | ||
provisions for sections of the Texas Probate Code that are amended | ||
in the bill. | ||
(7) House Rule 13, Sections 9(a)(1), (3), and (4), are | ||
suspended to permit the committee to change text which is not in | ||
disagreement, to add text on a matter which is not in disagreement, | ||
and to add text on a matter which is not included in either the house | ||
or senate version of the bill in proposed SECTION 2.22 of the bill, | ||
in amended Section 202.004, Estates Code, as effective January 1, | ||
2014, to read as follows: | ||
SECTION 2.22. Section 202.004, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 202.004. PERSONS WHO MAY COMMENCE PROCEEDING TO | ||
DECLARE HEIRSHIP. A proceeding to declare heirship of a decedent | ||
may be commenced and maintained under a circumstance specified by | ||
Section 202.002 by: | ||
(1) the personal representative of the decedent's | ||
estate; | ||
(2) a person claiming to be a secured or unsecured | ||
creditor or the owner of all or part of the decedent's estate; [ |
||
(3) if the decedent was a ward with respect to whom a | ||
guardian of the estate had been appointed, the guardian of the | ||
estate, provided that the proceeding is commenced and maintained in | ||
the probate court in which the proceedings for the guardianship of | ||
the estate were pending at the time of the decedent's death; | ||
(4) a party seeking the appointment of an independent | ||
administrator under Section 401.003; or | ||
(5) the trustee of a trust holding assets for the | ||
benefit of a decedent. | ||
Explanation: The change is necessary to authorize persons | ||
claiming to be unsecured creditors to institute proceedings to | ||
declare heirship. | ||
(8) House Rule 13, Sections 9(a)(1) and (4), are suspended | ||
to permit the committee to change text which is not in disagreement | ||
and to add text on a matter which is not included in either the house | ||
or senate version of the bill in proposed SECTION 2.47 of the bill, | ||
in amended Subchapter B, Chapter 309, Estates Code, as effective | ||
January 1, 2014, to read as follows: | ||
SECTION 2.47. Subchapter B, Chapter 309, Estates Code, as | ||
effective January 1, 2014, is amended by adding Sections 309.056 | ||
and 309.057 to read as follows: | ||
. . . | ||
Sec. 309.057. PENALTY FOR FAILURE TO TIMELY FILE INVENTORY, | ||
APPRAISEMENT, AND LIST OF CLAIMS OR AFFIDAVIT IN LIEU OF. (a) This | ||
section applies only to a personal representative, including an | ||
independent executor or administrator, who does not file an | ||
inventory, appraisement, and list of claims or affidavit in lieu of | ||
the inventory, appraisement, and list of claims, as applicable, | ||
within the period prescribed by Section 309.051 or any extension | ||
granted by the court. | ||
(b) Any person interested in the estate on written | ||
complaint, or the court on the court's own motion, may have a | ||
personal representative to whom this section applies cited to file | ||
the inventory, appraisement, and list of claims or affidavit in | ||
lieu of the inventory, appraisement, and list of claims, as | ||
applicable, and show cause for the failure to timely file. | ||
(c) If the personal representative does not file the | ||
inventory, appraisement, and list of claims or affidavit in lieu of | ||
the inventory, appraisement, and list of claims, as applicable, | ||
after being cited or does not show good cause for the failure to | ||
timely file, the court on hearing may fine the representative in an | ||
amount not to exceed $1,000. | ||
(d) The personal representative and the representative's | ||
sureties, if any, are liable for any fine imposed under this section | ||
and for all damages and costs sustained by the representative's | ||
failure. The fine, damages, and costs may be recovered in any court | ||
of competent jurisdiction. | ||
Explanation: The change is necessary to provide a penalty | ||
against personal representatives of decedents' estates for failing | ||
to timely file an inventory, appraisement, and list of claims or an | ||
affidavit in lieu of the inventory, appraisement, and list of | ||
claims. | ||
(9) House Rule 13, Sections 9(a)(1), (2), and (3), are | ||
suspended to permit the committee to change and omit text which is | ||
not in disagreement and to add text on a matter which is not in | ||
disagreement in proposed SECTION 2.49 of the bill, in Section | ||
352.004, Estates Code, as effective January 1, 2014, to read as | ||
follows: | ||
SECTION 2.49. Section 352.004, Estates Code, as effective | ||
January 1, 2014, is amended to read as follows: | ||
Sec. 352.004. DENIAL OF COMPENSATION. The court may, on | ||
application of an interested person or on the court's own motion, | ||
wholly or partly deny a commission allowed by this subchapter if: | ||
(1) the court finds that the executor or administrator | ||
has not taken care of and managed estate property prudently; or | ||
(2) the executor or administrator has been removed | ||
under Section 404.003 [ |
||
Explanation: This change is necessary to make a conforming | ||
change to a cross-reference in the Estates Code. | ||
(10) House Rule 13, Section 9(a)(4), is suspended to permit | ||
the committee to add text on a matter which is not included in | ||
either the house or senate version of the bill in proposed SECTION | ||
2.59 of the bill, in added Chapter 404, Estates Code, as effective | ||
January 1, 2014, to read as follows: | ||
Sec. 404.003. REMOVAL OF INDEPENDENT EXECUTOR. (a) 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 fixed in the notice, may | ||
remove an independent executor when: | ||
(1) the independent executor fails to return within 90 | ||
days after qualification, unless such time is extended by order of | ||
the court, either an inventory of the property of the estate and | ||
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; | ||
(2) sufficient grounds appear to support belief that | ||
the independent executor has misapplied or embezzled, or that the | ||
independent executor is about to misapply or embezzle, all or any | ||
part of the property committed to the independent executor's care; | ||
(3) the independent executor fails to make an | ||
accounting which is required by law to be made; | ||
(4) the independent executor fails to timely file the | ||
affidavit or certificate required by Section 308.004; | ||
(5) the independent executor is proved to have been | ||
guilty of gross misconduct or gross mismanagement in the | ||
performance of the independent executor's duties; | ||
(6) the independent executor becomes an incapacitated | ||
person, or is sentenced to the penitentiary, or from any other cause | ||
becomes incapable of properly performing the independent | ||
executor's fiduciary duties; or | ||
(7) the independent executor becomes incapable of | ||
properly performing the independent executor's fiduciary duties | ||
due to a material conflict of interest. | ||
(b) The probate court, on its own motion or on the motion of | ||
any interested person, and after the independent executor has been | ||
cited by certified mail, return receipt requested, to answer at a | ||
time and place stated in the citation, may remove an independent | ||
executor who is appointed under the provisions of this code if the | ||
independent executor: | ||
(1) subject to Subsection (c)(1), fails to qualify in | ||
the manner and period required by law; | ||
(2) subject to Subsection (c)(2), fails to return not | ||
later than the 90th day after the date the independent executor | ||
qualifies 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 the period is extended by court order; | ||
(3) cannot be served with notices or other processes | ||
because the: | ||
(A) independent executor's location is unknown; | ||
(B) independent executor is eluding service; or | ||
(C) independent executor is a nonresident of this | ||
state who does not have a resident agent to accept service of | ||
process in a probate proceeding or other action relating to the | ||
estate; or | ||
(4) subject to Subsection (c)(3), has misapplied, | ||
embezzled, or removed from the state, or is about to misapply, | ||
embezzle, or remove from the state, all or any part of the property | ||
committed to the independent executor's care. | ||
(c) The probate court may remove an independent executor: | ||
(1) under Subsection (b)(1) only if the independent | ||
executor fails to qualify on or before the 30th day after the date | ||
the court sends a notice 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, | ||
notifying the independent executor and attorney of the court's | ||
intent to remove the independent executor for failure to qualify in | ||
the manner and period required by law; | ||
(2) under Subsection (b)(2) only if the independent | ||
executor fails to file an inventory and list of claims or an | ||
affidavit in lieu of the inventory, appraisement, and list of | ||
claims as required by law on or before the 30th day after the date | ||
the court sends a notice 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, | ||
notifying the independent executor and attorney of the court's | ||
intent to remove the independent executor for failure to file the | ||
inventory and list of claims or affidavit; and | ||
(3) under Subsection (b)(4) only on presentation of | ||
clear and convincing evidence given under oath of the | ||
misapplication, embezzlement, or removal from this state of | ||
property as described by that subdivision. | ||
(d) The order of removal shall state the cause of removal | ||
and shall direct by order the disposition of the assets remaining in | ||
the name or under the control of the removed executor. The order of | ||
removal shall require that letters issued to the removed executor | ||
shall be surrendered and that all letters shall be canceled of | ||
record. If an independent executor is removed by the court under | ||
this section, the court may, on application, appoint a successor | ||
independent executor as provided by Section 404.005. | ||
(e) An independent executor who defends an action for the | ||
independent executor's removal in good faith, whether successful or | ||
not, shall be allowed out of the estate the independent executor's | ||
necessary expenses and disbursements, including reasonable | ||
attorney's fees, in the removal proceedings. | ||
(f) Costs and expenses incurred by the party seeking removal | ||
that are incident to removal of an independent executor appointed | ||
without bond, including reasonable attorney's fees and expenses, | ||
may be paid out of the estate. | ||
Explanation: The change is necessary to make various | ||
revisions to the procedures for removal of independent executors. | ||
(11) House Rule 13, Sections 9(a)(1), (2), and (4), are | ||
suspended to permit the committee to change text which is not in | ||
disagreement, omit text which is not in disagreement, and add text | ||
on a matter which is not included in either the house or senate | ||
version of the bill in proposed SECTION 2.61 of the bill, in | ||
Subsections (a) and (b) of that section, to read as follows: | ||
(a) Sections 202.003 and 255.201, Estates Code, as | ||
effective January 1, 2014, are repealed. | ||
(b) The following sections of the Texas Probate Code are | ||
repealed: | ||
(1) Sections 4D, 4H, 15, 34A, 37A, 48(a), 49, 53C(a) | ||
and (b), 59, 64, 67, 77, 81(a), 83(a), 84, 89A(a), 128A, 143, 227, | ||
250, 256, 260, 271(a) and (b), 286, 293, 385(a), 407, 408(b), (c), | ||
and (d), 427, 436, 439, 452, 471, 472, and 473, as amended by | ||
Article 1 of this Act; and | ||
(2) Sections 6A, 6B, 6C, 6D, 8A, 8B, 48(d), 145A, 145B, | ||
145C, and 254, as added by Article 1 of this Act. | ||
Explanation: The change is necessary to correct the repeal of | ||
a provision of the Estates Code and to repeal, when the Estates Code | ||
takes effect, certain provisions of the Texas Probate Code that are | ||
amended or added in Article 1 of the bill. |