Bill Text: TX SB1975 | 2019-2020 | 86th Legislature | Engrossed
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to probate and guardianship matters and proceedings and other matters involving probate courts.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2019-05-15 - Committee report sent to Calendars [SB1975 Detail]
Download: Texas-2019-SB1975-Engrossed.html
Bill Title: Relating to probate and guardianship matters and proceedings and other matters involving probate courts.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2019-05-15 - Committee report sent to Calendars [SB1975 Detail]
Download: Texas-2019-SB1975-Engrossed.html
By: Zaffirini | S.B. No. 1975 |
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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, [ |
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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 [ |
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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 [ |
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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 [ |
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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 [ |
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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 [ |
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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 [ |
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unless the probate court finds that it would not be in the best | ||
interest of the estate to do so. The successor independent | ||
administrator [ |
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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 [ |
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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 [ |
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(h) If a successor independent administrator [ |
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appointed under this section, then, unless the probate court shall | ||
waive bond on application for waiver, the successor independent | ||
administrator [ |
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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 | ||
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appointment of a successor independent administrator [ |
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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 [ |
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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 [ |
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(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 [ |
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SECTION 16. The heading to Chapter 1054, Estates Code, is | ||
amended to read as follows: | ||
CHAPTER 1054. COURT OFFICERS, [ |
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ATTORNEYS | ||
SECTION 17. The heading to Subchapter E, Chapter 1054, | ||
Estates Code, is amended to read as follows: | ||
SUBCHAPTER E. QUALIFICATIONS TO SERVE AS [ |
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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 [ |
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representing any person's interests [ |
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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) [ |
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(B) [ |
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(C) [ |
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or estate of the ward, or both; | ||
(D) [ |
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(E) [ |
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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) [ |
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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[ |
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Except as provided by Section [ |
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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. | ||
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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[ |
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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 [ |
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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), [ |
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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 [ |
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guardianship cases or who serve as court-appointed guardians. | ||
(e) The provider of a course described by this section may | ||
not charge more than the amount necessary to cover the costs of | ||
providing the course. | ||
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. |