Bill Text: TX SB1975 | 2019-2020 | 86th Legislature | Comm Sub


Bill Title: Relating to probate and guardianship matters and proceedings and other matters involving probate courts.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed) 2019-05-15 - Committee report sent to Calendars [SB1975 Detail]

Download: Texas-2019-SB1975-Comm_Sub.html
  86R31840 MTB-D
 
  By: Zaffirini S.B. No. 1975
 
  (Thompson of Harris)
 
  Substitute the following for S.B. No. 1975:  No.
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to probate and guardianship matters and proceedings and
  other matters involving probate courts.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 30.014(a), Civil Practice and Remedies
  Code, is amended to read as follows:
         (a)  In a civil action, including a probate or guardianship
  proceeding, filed in a district court, county court, [or] statutory
  county court, or statutory probate court, each party or the party's
  attorney shall include in its initial pleading:
               (1)  the last three numbers of the party's driver's
  license number, if the party has been issued a driver's license; and
               (2)  the last three numbers of the party's social
  security number, if the party has been issued a social security
  number.
         SECTION 2.  Section 33.101, Estates Code, is amended to read
  as follows:
         Sec. 33.101.  TRANSFER TO OTHER COUNTY IN WHICH VENUE IS
  PROPER.  If probate proceedings involving the same estate are
  commenced in more than one county and the court making a
  determination of venue as provided by Section 33.053 determines
  that venue is proper in another county, the court clerk shall make
  and retain a copy of the entire file in the case and transmit the
  original file in electronic or paper form to the court in the county
  in which venue is proper.  The court to which the file is
  transmitted shall conduct the proceeding in the same manner as if
  the proceeding had originally been commenced in that county.
         SECTION 3.  Section 33.102(a), Estates Code, is amended to
  read as follows:
         (a)  If it appears to the court at any time before the final
  order in a probate proceeding is rendered that the court does not
  have priority of venue over the proceeding, the court shall, on the
  application of an interested person, transfer the proceeding to the
  proper county by transmitting to the proper court in that county in
  electronic or paper form:
               (1)  the original file in the case; and
               (2)  certified copies of all entries that have been
  made in the judge's probate docket in the proceeding.
         SECTION 4.  Section 33.103, Estates Code, is amended by
  adding Subsection (c) to read as follows:
         (c)  The transmittal under Subsection (b) of the original
  file and the certified copy of the index may be in electronic or
  paper form, except that an original will filed in the probate
  proceeding, if any, must be delivered to the court to which the
  proceeding is transferred.
         SECTION 5.  Section 51.003(b), Estates Code, is amended to
  read as follows:
         (b)  A citation or notice issued by the county clerk must be
  styled "The State of Texas" and be signed by the clerk under the
  court's [clerk's] seal.
         SECTION 6.  Section 202.054, Estates Code, is amended to
  read as follows:
         Sec. 202.054.  PERSONAL SERVICE OF CITATION MAY BE REQUIRED.
  (a)  The court may require that service of citation in a proceeding
  to declare heirship be made by personal service on some or all of
  those named as distributees in the application filed under Section
  202.005.
         (b)  If a distributee to be cited under Subsection (a) is
  absent from or is not a resident of this state, any disinterested
  person competent to make an oath that the citation was served may
  serve the citation.
         SECTION 7.  Section 351.351, Estates Code, is amended to
  read as follows:
         Sec. 351.351.  APPLICABILITY.  This subchapter does not
  apply to:
               (1)  the appointment of an independent executor or
  administrator under Section 401.002 or 401.003(a); or
               (2)  the appointment of a successor independent
  administrator [executor] under Section 404.005.
         SECTION 8.  Section 404.0036(b), Estates Code, is amended to
  read as follows:
         (b)  If an independent executor is removed by the court under
  Section 404.003 or 404.0035, the court may, on application, appoint
  a successor independent administrator [executor] as provided by
  Section 404.005.
         SECTION 9.  The heading to Section 404.005, Estates Code, is
  amended to read as follows:
         Sec. 404.005.  COURT-APPOINTED SUCCESSOR INDEPENDENT
  ADMINISTRATOR [EXECUTOR].
         SECTION 10.  Sections 404.005(a), (b), (c), (h), and (i),
  Estates Code, are amended to read as follows:
         (a)  If the will of a person who dies testate names an
  independent executor who, having qualified, fails for any reason to
  continue to serve, or is removed for cause by the court, and the
  will does not name a successor independent executor or if each
  successor executor named in the will fails for any reason to qualify
  as executor or indicates by affidavit filed with the application
  for an order continuing independent administration the successor
  executor's inability or unwillingness to serve as successor
  independent executor, all of the distributees of the decedent as of
  the filing of the application for an order continuing independent
  administration may apply to the probate court for the appointment
  of a qualified person, firm, or corporation to serve as successor
  independent administrator [executor].  If the probate court finds
  that continued administration of the estate is necessary, the court
  shall enter an order continuing independent administration and
  appointing the person, firm, or corporation designated in the
  application as successor independent administrator [executor],
  unless the probate court finds that it would not be in the best
  interest of the estate to do so.  The successor independent
  administrator [executor] shall serve with all of the powers and
  privileges granted to the successor's predecessor independent
  executor.
         (b)  Except as otherwise provided by this subsection, if a
  distributee described in this section is an incapacitated person,
  the guardian of the person of the distributee may sign the
  application on behalf of the distributee.  If the probate court
  finds that either the continuing of independent administration or
  the appointment of the person, firm, or corporation designated in
  the application as successor independent administrator [executor]
  would not be in the best interest of the incapacitated person, then,
  notwithstanding Subsection (a), the court may not enter an order
  continuing independent administration of the estate.  If the
  distributee is an incapacitated person and has no guardian of the
  person, the court may appoint a guardian ad litem to make
  application on behalf of the incapacitated person if the probate
  court considers such an appointment necessary to protect the
  interest of that distributee.  If a distributee described in this
  section is a minor and has no guardian of the person, a natural
  guardian of the minor may sign the application for the order
  continuing independent administration on the minor's behalf unless
  a conflict of interest exists between the minor and the natural
  guardian.
         (c)  Except as otherwise provided by this subsection, if a
  trust is created in the decedent's will or if the decedent's will
  devises property to a trustee as described by Section 254.001, the
  person or class of persons entitled to receive property outright
  from the trust on the decedent's death and those first eligible to
  receive the income from the trust, determined as if the trust were
  to be in existence on the date of the filing of the application for
  an order continuing independent administration, shall, for the
  purposes of this section, be considered to be the distributee or
  distributees on behalf of the trust, and any other trust or trusts
  coming into existence on the termination of the trust, and are
  authorized to apply for an order continuing independent
  administration on behalf of the trust without the consent or
  agreement of the trustee or any other beneficiary of the trust, or
  the trustee or any beneficiary of any other trust which may come
  into existence on the termination of the trust.  If a person
  considered to be a distributee under this subsection is an
  incapacitated person, the trustee or cotrustee may apply for the
  order continuing independent administration or sign the
  application on the incapacitated person's behalf if the trustee or
  cotrustee is not the person proposed to serve as the independent
  administrator [executor].
         (h)  If a successor independent administrator [executor] is
  appointed under this section, then, unless the probate court shall
  waive bond on application for waiver, the successor independent
  administrator [executor] shall be required to enter into bond
  payable to and to be approved by the judge and the judge's
  successors in a sum that is found by the judge to be adequate under
  all circumstances, or a bond with one surety in an amount that is
  found by the judge to be adequate under all circumstances, if the
  surety is an authorized corporate surety.
         (i)  Absent proof of fraud or collusion on the part of a
  judge, the judge may not be held civilly liable for the commission
  of misdeeds or the omission of any required act of any person, firm,
  or corporation designated as a successor independent administrator
  [executor] under this section.  Section 351.354 does not apply to an
  appointment of a successor independent administrator [executor]
  under this section.
         SECTION 11.  Section 452.006, Estates Code, is amended by
  adding Subsection (c) to read as follows:
         (c)  The appointee shall file with the court proof of service
  of the notice required under Subsection (a) in the manner provided
  by Section 51.103(b)(3).
         SECTION 12.  Section 503.002, Estates Code, is amended to
  read as follows:
         Sec. 503.002.  RECORDING OF CERTAIN FOREIGN TESTAMENTARY
  INSTRUMENTS IN LANGUAGE OTHER THAN ENGLISH [ORIGINAL SIGNATURES NOT
  REQUIRED].  (a)  An authenticated copy of a will or other
  testamentary instrument described by Section 503.001(a), along
  with a copy of the judgment, order, or decree by which the
  instrument was admitted to probate that has the attestation and
  certificate required by Section 501.002(c), that is written in
  whole or in part in a language other than English may be filed for
  recording in the deed records in any county in this state in which
  the land conveyed or disposed of in the instrument is located if:
               (1)  a correct English translation is recorded with the
  authenticated copies of the will or other testamentary instrument
  and judgment, order, or decree by which the instrument was admitted
  to probate; and
               (2)  the accuracy of the translation is sworn to before
  an officer authorized to administer oaths [Notwithstanding Section
  501.002(c), the original signatures required by that section may
  not be required for a recordation in the deed records in accordance
  with Section 503.001 or for a purpose described by Section 503.051
  or 503.052].
         (b)  The recording of an authenticated copy of a will or
  other testamentary instrument and a copy of the judgment, order, or
  decree in the manner provided by Subsection (a) operates as
  constructive notice from the date of filing to all persons of the:
               (1)  existence of the instrument; and
               (2)  title or titles conferred by the instrument.
         SECTION 13.  Section 1023.006, Estates Code, is amended to
  read as follows:
         Sec. 1023.006.  TRANSFER OF RECORD.  When an order of
  transfer is made under Section 1023.005, the clerk shall record any
  unrecorded papers of the guardianship required to be recorded.  On
  payment of the clerk's fee, the clerk shall transmit in electronic
  or paper form to the county clerk of the county to which the
  guardianship was ordered transferred:
               (1)  the case file of the guardianship proceedings; and
               (2)  a certified copy of the index of the guardianship
  records.
         SECTION 14.  Section 1023.007, Estates Code, is amended to
  read as follows:
         Sec. 1023.007.  TRANSFER EFFECTIVE.  The order transferring
  a guardianship does not take effect until:
               (1)  the case file and a certified copy of the index
  required by Section 1023.006 are filed in electronic or paper form
  in the office of the county clerk of the county to which the
  guardianship was ordered transferred; and
               (2)  a certificate under the clerk's official seal and
  reporting the filing of the case file and a certified copy of the
  index is filed in electronic or paper form in the court ordering the
  transfer by the county clerk of the county to which the guardianship
  was ordered transferred.
         SECTION 15.  Section 1051.003(b), Estates Code, is amended
  to read as follows:
         (b)  A citation or notice issued by the county clerk must be
  styled "The State of Texas" and be signed by the clerk under the
  court's [clerk's] seal.
         SECTION 16.  The heading to Chapter 1054, Estates Code, is
  amended to read as follows:
  CHAPTER 1054. COURT OFFICERS, [AND] COURT-APPOINTED PERSONS, AND
  ATTORNEYS
         SECTION 17.  The heading to Subchapter E, Chapter 1054,
  Estates Code, is amended to read as follows:
  SUBCHAPTER E. QUALIFICATIONS TO SERVE AS [COURT-APPOINTED]
  ATTORNEY
         SECTION 18.  Section 1054.201, Estates Code, is amended by
  amending Subsection (a) and adding Subsection (c) to read as
  follows:
         (a)  Except as provided by Subsection (c), an [An] attorney
  representing any person's interests [for an applicant for
  guardianship and a court-appointed attorney] in a guardianship
  proceeding, including an attorney ad litem, must be certified by
  the State Bar of Texas, or a person or other entity designated by
  the state bar, as having successfully completed a course of study in
  guardianship law and procedure sponsored by the state bar or the
  state bar's designee.
         (c)  An attorney may commence representation of a person's
  interests and file an appearance in a guardianship proceeding
  before completing the course required for certification under
  Subsection (a), but must complete the course not later than the 14th
  day after the date of filing the appearance and before filing any
  substantive motion in the guardianship proceeding.
         SECTION 19.  Section 1101.001(b), Estates Code, is amended
  to read as follows:
         (b)  The application must be sworn to by the applicant and
  state:
               (1)  the proposed ward's name, sex, date of birth, and
  address;
               (2)  the name, former name, if any, relationship, and
  address of the person the applicant seeks to have appointed as
  guardian;
               (3)  whether guardianship of the person or estate, or
  both, is sought;
               (3-a)  whether alternatives to guardianship and
  available supports and services to avoid guardianship were
  considered;
               (3-b)  whether any alternatives to guardianship and
  supports and services available to the proposed ward considered are
  feasible and would avoid the need for a guardianship;
               (4)  the nature and degree of the alleged incapacity,
  the specific areas of protection and assistance requested, and the
  limitation or termination of rights requested to be included in the
  court's order of appointment, including a termination of:
                     (A)  the right of a proposed ward who is 18 years
  of age or older to vote in a public election;
                     (B)  the proposed ward's eligibility to hold or
  obtain a license to operate a motor vehicle under Chapter 521,
  Transportation Code; and
                     (C)  the right of a proposed ward to make personal
  decisions regarding residence;
               (5)  the facts requiring the appointment of a guardian;
               (6)  the interest of the applicant in the appointment
  of a guardian;
               (7)  the nature and description of any kind of
  guardianship existing for the proposed ward in any other state;
               (8)  the name and address of any person or institution
  having the care and custody of the proposed ward;
               (9)  the approximate value and a detailed description
  of the proposed ward's property, including:
                     (A)  liquid assets, including any compensation,
  pension, insurance, or allowance to which the proposed ward may be
  entitled; and
                     (B)  non-liquid assets, including real property;
               (10)  the name and address of any person whom the
  applicant knows to hold a power of attorney signed by the proposed
  ward and a description of the type of power of attorney;
               (11)  for a proposed ward who is a minor, the following
  information if known by the applicant:
                     (A)  the name of each of the proposed ward's
  parents and either the parent's address or that the parent is
  deceased;
                     (B)  the name and age of each of the proposed
  ward's siblings, if any, and either the sibling's address or that
  the sibling is deceased; and
                     (C)  if each of the proposed ward's parents and
  adult siblings are deceased, the names and addresses of the
  proposed ward's other living relatives who are related to the
  proposed ward within the third degree by consanguinity and who are
  adults;
               (12)  for a proposed ward who is a minor, whether the
  minor was the subject of a legal or conservatorship proceeding in
  the preceding two years and, if so:
                     (A)  the court involved;
                     (B)  the nature of the proceeding; and
                     (C)  any final disposition of the proceeding;
               (13)  for a proposed ward who is an adult, the following
  information if known by the applicant:
                     (A)  the name of the proposed ward's spouse, if
  any, and either the spouse's address or that the spouse is deceased;
                     (B)  the name of each of the proposed ward's
  parents and either the parent's address or that the parent is
  deceased;
                     (C)  the name and age of each of the proposed
  ward's siblings, if any, and either the sibling's address or that
  the sibling is deceased;
                     (D)  the name and age of each of the proposed
  ward's children, if any, and either the child's address or that the
  child is deceased; and
                     (E)  if there is no living spouse, parent, adult
  sibling, or adult child of the proposed ward, the names and
  addresses of the proposed ward's other living relatives who are
  related to the proposed ward within the third degree by
  consanguinity and who are adults;
               (14)  facts showing that the court has venue of the
  proceeding; and
               (15)  if applicable, that the person whom the applicant
  seeks to have appointed as a guardian is a private professional
  guardian who is certified under Subchapter C, Chapter 155,
  Government Code, and has complied with the requirements of
  Subchapter G, Chapter 1104.
         SECTION 20.  Section 1101.153(a), Estates Code, is amended
  to read as follows:
         (a)  A court order appointing a guardian must:
               (1)  specify:
                     (A) [(1)]  the name of the person appointed;
                     (B) [(2)]  the name of the ward;
                     (C) [(3)]  whether the guardian is of the person
  or estate of the ward, or both;
                     (D) [(4)]  the amount of any bond required;
                     (E) [(5)]  if it is a guardianship of the estate
  of the ward and the court considers an appraisal to be necessary,
  one, two, or three disinterested persons to appraise the estate and
  to return the appraisement to the court; and
                     (F) [(6)]  that the clerk will issue letters of
  guardianship to the person appointed when the person has qualified
  according to law; and
               (2)  if the court waives the guardian's training
  requirement, contain a finding that the waiver is in accordance
  with rules adopted by the supreme court under Section 155.203,
  Government Code.
         SECTION 21.  Section 1104.402, Estates Code, is amended to
  read as follows:
         Sec. 1104.402.  COURT CLERK'S DUTY TO OBTAIN CRIMINAL
  HISTORY RECORD INFORMATION[; AUTHORITY TO CHARGE FEE]. [(a)]  
  Except as provided by Section [1104.403,] 1104.404[,] or
  1104.406(a), the clerk of the county having venue of the proceeding
  for the appointment of a guardian shall obtain criminal history
  record information that is maintained by the Department of Public
  Safety or the Federal Bureau of Investigation identification
  division relating to:
               (1)  a private professional guardian;
               (2)  each person who represents or plans to represent
  the interests of a ward as a guardian on behalf of the private
  professional guardian;
               (3)  each person employed by a private professional
  guardian who will:
                     (A)  have personal contact with a ward or proposed
  ward;
                     (B)  exercise control over and manage a ward's
  estate; or
                     (C)  perform any duties with respect to the
  management of a ward's estate;
               (4)  each person employed by or volunteering or
  contracting with a guardianship program to provide guardianship
  services to a ward of the program on the program's behalf; or
               (5)  any other person proposed to serve as a guardian
  under this title, including a proposed temporary guardian and a
  proposed successor guardian, other than an attorney.
         [(b)     The clerk may charge a $10 fee to recover the costs of
  obtaining criminal history record information under Subsection
  (a).]
         SECTION 22.  Section 1104.405(a), Estates Code, is amended
  to read as follows:
         (a)  Criminal history record information obtained or
  provided under Section 1104.402[, 1104.403,] or 1104.404 is
  privileged and confidential and is for the exclusive use of the
  court. The criminal history record information may not be released
  or otherwise disclosed to any person or agency except on court order
  or consent of the person being investigated.
         SECTION 23.  Subchapter A, Chapter 1151, Estates Code, is
  amended by adding Section 1151.005 to read as follows:
         Sec. 1151.005.  LEGAL PROCEEDINGS IN WHICH WARD IS PARTY OR
  WITNESS.  The guardian of the person or of the estate of a ward may
  not be excluded from attending a legal proceeding in which the ward
  is:
               (1)  a party; or
               (2)  participating as a witness.
         SECTION 24.  Section 1253.001, Estates Code, is amended to
  read as follows:
         Sec. 1253.001.  APPLICATION TO TRANSFER GUARDIANSHIP TO
  FOREIGN JURISDICTION.  On application of the guardian or on the
  court's own motion, a [A guardian of the person or estate may apply
  to the] court that has jurisdiction over the guardianship may [to]
  transfer the guardianship to a court in a foreign jurisdiction to
  which the ward has permanently moved.
         SECTION 25.  Section 25.0006, Government Code, is amended by
  amending Subsection (a) and adding Subsection (a-5) to read as
  follows:
         (a)  Notwithstanding any other law except Subsection (a-4),
  Subsections (a-1), (a-2), [and] (a-3), and (a-5) control over a
  specific provision for a particular court or county that attempts
  to create a requirement for a bond or insurance that conflicts with
  those subsections.
         (a-5)  A bond executed under Subsection (a-1) by the judge
  elected or appointed to a statutory county court or an insurance
  policy obtained under Subsection (a-3) shall provide the same
  coverage to a visiting judge assigned to the court as the bond or
  insurance policy provides to the judge elected or appointed to the
  court.
         SECTION 26.  Section 25.00231, Government Code, is amended
  by adding Subsection (f) to read as follows:
         (f)  Notwithstanding Subsection (e), a bond executed under
  Subsection (b) by the judge elected or appointed to a statutory
  probate court or an insurance policy obtained under Subsection (c)
  shall provide the same coverage to a visiting judge assigned to the
  court as the bond or insurance policy provides to the judge elected
  or appointed to the court.
         SECTION 27.  Section 26.001, Government Code, is amended by
  adding Subsection (d) to read as follows:
         (d)  A bond executed under Subsection (a) by the judge
  elected or appointed to a county court or an insurance policy
  obtained under Subsection (c) shall provide the same coverage to a
  visiting judge assigned to the court as the bond or insurance policy
  provides to the judge elected or appointed to the court.
         SECTION 28.  Section 81.114, Government Code, is amended by
  amending Subsection (a) and adding Subsection (e) to read as
  follows:
         (a)  The state bar shall provide a course of instruction for
  attorneys who represent any person's interests [parties] in
  guardianship cases or who serve as court-appointed guardians.
         (e)  The course of instruction described by this section must
  be low-cost and available to persons throughout this state,
  including on the Internet provided through the state bar.
         SECTION 29.  Section 1104.403, Estates Code, is repealed.
         SECTION 30.  (a)  Section 202.054, 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.
         (b) Section 452.006(c), Estates Code, as added by this Act,
  applies only to a temporary administrator appointed on or after the
  effective date of this Act.  A temporary administrator appointed
  before the effective date of this Act is governed by the law in
  effect on the date the administrator was appointed, and the former
  law is continued in effect for that purpose.
         (c)  Section 503.002, Estates Code, as amended by this Act,
  applies only to a copy of a testamentary instrument or other
  document filed for recording on or after the effective date of this
  Act.  A copy of a testamentary instrument or other document filed
  before the effective date of this Act is governed by the law in
  effect on the date the instrument or document was filed, and the
  former law is continued in effect for that purpose.
         (d)  Section 1101.001, Estates Code, as amended by this Act,
  applies only to an application for the appointment of a guardian
  filed on or after the effective date of this Act. An application
  for the appointment of a guardian 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.
         (e)  Sections 1054.201 and 1101.153, Estates Code, as
  amended by this Act, apply only to a guardianship proceeding
  commenced on or after the effective date of this Act. A
  guardianship proceeding commenced before the effective date of this
  Act is governed by the law applicable to the proceeding immediately
  before the effective date of this Act, and the former law is
  continued in effect for that purpose.
         (f)  Section 1253.001, Estates Code, as amended by this Act,
  applies to a guardianship created before, on, or after the
  effective date of this Act.
         (g)  The changes in law made by this Act to Sections 25.0006,
  25.00231, and 26.001, Government Code, apply only to an insurance
  policy delivered, issued for delivery, or renewed on or after
  January 1, 2020.  An insurance policy delivered, issued for
  delivery, or renewed before January 1, 2020, is governed by the law
  as it existed immediately before the effective date of this Act, and
  that law is continued in effect for that purpose.
         SECTION 31.  This Act takes effect September 1, 2019.
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