Attorney's Checklist for 1997 Legislative Changes
| I
prepared this checklist to highlight some of the key 1997
Texas legislative changes which might impact an attorney
with an estate planning, probate and trust law practice.
It is not an exhaustive list of changes by any means. Glenn M. Karisch, Barnes & Associates, P. C. |
| # | Description | Statutory Reference |
| Will Preparation | ||
| 1 | Be sure that all beneficiaries of will fall outside of the new statute making certain bequests to attorneys, their employees and their families void (applies to wills executed after September 1, 1997) | Probate Code § 58b |
| Disability Planning | ||
| 2 | Begin using new statutory durable power of attorney form September 1, 1997 | Probate Code § 490 |
| 3 | Begin using new statutory directive to physicians form January 1, 1998 | Health & Safety Code § 672.004 |
| 4 | Consider using new declaration for mental health treatment form for clients who are likely to need mental health treatment within the next three years (form may be used on or after September 1, 1997) | Civil Practices & Remedies Code, Chapter 137 |
| 5 | Divorce terminates the authority of former spouse to act as agent on durable power of attorney, but third parties without knowledge are protected (applies to powers of attorney executed on or after September 1, 1997) | Probate Code §§ 485A, 486, 487 |
| 6 | Giving agent the power to engage in "real property transactions" in statutory power of attorney now includes oil, gas and mineral transactions (applies to powers of attorney executed on or after September 1, 1997) | Probate Code § 492 |
| 7 | "Retirement plan" defined for purposes of retirement plan transactions in statutory power of attorney to include ERISA plans, IRAs and similar plans (applies to powers of attorney executed on or after September 1, 1997) | Probate Code § 503 |
| Probating Will--Letters Testamentary | ||
| 8 | Application no longer must include social security numbers, but court can require applicant or personal representative to provide identifying information, including social security numbers (applies to persons dying on or after September 1, 1997) | Probate Code §§ 36(b), 81 |
| 9 | Medical records regarding testator's capacity may be easier to get for persons dying on or after September 1, 1997 | Probate Code § 10B |
| Probating Will -- Muniment of Title | ||
| 10 | Follow the new statute regarding applications to probate will as muniment of title | Probate Code § 89A |
| 11 | Applications to probate will as muniment of title must include social security numbers (unlike other applications) | Probate Code §89A |
| 12 | Follow the new statute regarding proving up a will as muniment of title | Probate Code § 89B |
| 13 | If trying to use muniment of title to probate will more than 4 years after decedent's death or when there are debts of the estate but no need for administration, focus on new Section 89C and the legislative history of HB 2007 (legislature didn't intend substantive change of law) | Probate Code §§ 89A, 89B and 89C |
| Declaration of Heirship/Application for Intestate Administration | ||
| 14 | Citation shall be served on a parent, managing conservator or guardian of a distributee under 12 years old for applications filed after September 1, 1997 | Probate Code § 50 |
| 15 | Application for administration no longer must include social security numbers, but court can require applicant or personal representative to provide identifying information, including social security numbers (applies to persons dying on or after September 1, 1997) | Probate Code §§ 36(b), 82 |
| Small Estate Affidavit | ||
| 16 | Affidavit must include relevant family history facts concerning heirship that show distributees' rights to inherit (applies to persons dying on or after September 1, 1997) | Probate Code § 137 |
| Dependent Administration | ||
| 17 | Administration can apply to court for permission to abandon burdensome or worthless property (applies to persons dying on or after September 1, 1997) | Probate Code § 234 |
| 18 | Check amended Section 299 regarding tolling of general statute of limitations (for persons dying on or after September 1, 1997) | Probate Code § 299 |
| 19 | Check new procedures for foreclosure of preferred lien (applies to persons dying on or after September 1, 1997) | Probate Code § 306 |
| 20 | The priority for funeral expenses and expenses of last illness was increased from $5,000 to $15,000 (applies to persons dying on or after September 1, 1997) | Probate Code §§ 320, 322 |
| 21 | Annual accounts and accounts for final settlement now must include a statement that the personal representative has paid all the required bond premiums for the accounting period (applies to accounts filed on or after September 1, 1997) | Probate Code §§ 399, 405 |
| Independent Administration | ||
| 22 | Secured creditor can now give notice to independent executor of its election of matured secured status by (1) hand delivery with proof of receipt, (2) certified mail or (3) a pleading (applies to persons dying on or after September 1, 1997) | Probate Code § 146 |
| 23 | Unsecured creditor receiving optional 4-month bar notice under Section 294(d) can now give notice to independent executor of its election of matured secured status by (1) hand delivery with proof of receipt, (2) certified mail or (3) a pleading (applies to persons dying on or after September 1, 1997) | Probate Code § 146 |
| Guardianship Application | ||
| 24 | Notice must be given to the person designated in a guardianship declaration (applies to guardianship proceedings instituted on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 633 |
| 25 | Application for guardianship no longer must include social security numbers, but court can require applicant or guardian to provide identifying information, including social security numbers (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 682 |
| 26 | Guardianship is no longer available for missing persons; replaced by a receivership proceeding | Human Resources Code §§ 79.017, 79.018 |
| Guardianship Administration | ||
| 27 | Consider asking court to modify guardianships in effect on September 1, 1997, to make the provisions of SB 997, HB 1152, HB 1316 and HB 2189 applicable | |
| 28 | Annual reports of guardians of the person must state that the bond premium has been paid (applies to reports filed on or after September 1, 1997) | Probate Code § 743 |
| 29 | Accounts for final settlement must include statements that the guardian has paid all required bond premiums, list the tax returns that the guardian has filed and include an accounting of all taxes paid, taxes still owing, and tax returns not filed (applies to accounts filed on or after September 1, 1997) | Probate Code § 749 |
| 30 | Personal sureties, deposit of money and personal bonds are now permitted for guardians of the person when there is no guardian of the estate (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 702A |
| 31 | Guardians may now apply to court for permission to abandon worthless or burdensome property (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 774 |
| 32 | Court may now order the guardian to expend funds from the ward's estate for the education and maintenance of the ward's spouse or dependents, based on criteria set forth in new statute (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 776A |
| 33 | There is now a "superpriority" for administrative claims in guardianships where the estate is insolvent (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 805 |
| 34 | Texas Tomorrow Fund investments are now permitted, with court approval (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 856 |
| 35 | The permissive recipients of tax-motivated gifts have changed, and there is now a procedure to be followed for approval of tax-motivated gifts (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified) | Probate Code § 865 |
| Court-Created Trusts (867 Trusts and 142 Trusts) | ||
| 36 | Medicaid (d)(4)(A) "supplemental needs" trusts may now be created under Probate Code Section 867 and Property Code Section 142.005 (applies to 867 Trusts regardless of the date of creation; statute is unclear whether 142 Trusts established prior to September 1, 1997, benefit from the statute) | Probate Code § 867, 868; Property Code § 142.005 |
| 37 | Consider asking the court who created a Medicaid (d)(4)(A) "supplemental needs" trusts prior to September 1, 1997, for the specific findings required by the amended Sections 868 or 142.005 (whichever is applicable) and to expressly state that the new law applies to the trust | Probate Code § 867, 868; Property Code § 142.005 |
| 38 | Section 867 Trusts now may expressly include optional provisions, to the extent they are not inconsistent with mandatory provisions (applies to 867 Trusts regardless of the date of creation) | Probate Code § 868 |
| 39 | Guardian of the estate may be discharged after creation of 867 Trust if there is a guardian of the person serving (applies to 867 Trusts regardless of the date of creation) | Probate Code § 868A |
| 40 | Trust Code applies to 867 Trusts, and the court creating the trust has the same jurisdiction over the trust as it had over the guardianship (applies to 867 Trusts regardless of the date of creation) | Probate Code §§ 869B, 869C, Trust Code § 115.001(d) |
| Other | ||
| 41 | The "free" filing period at the county clerk's office was extended from 90 days after filing an application to 120 days after filing an application | Local Government Code § 118.055(d) |
| 42 | The 5B transfer power of statutory probate courts may have been expanded to include actions by or against a personal representative of decedent's estates (no similar change to guardianship transfer power) | Probate Code §5A(b) |
| 43 | There are now clear procedures for having a statutory probate judge recused or assigned to hear a probate matter in a non-statutory probate court county | Government Code §§ 25.0022, 25.00255 |
| 44 | The statutes regarding emergency intervention proceedings (payment of burial expenses, etc.) were moved | Probate Code §§ 108 -- 115 |
| 45 | Informal probate was repealed | Former Probate Code Chapter XII |
| 46 | Gifts to old TUGMA accounts are permitted, but the accounts must terminate at age 18 | TUTMA, Section 25 (Property Code § 141.025) |
| 47 | Title 1 of Family Code recodified effective April 17, 1997 | Family Code Title 1 |
| 48 | There are new rules regarding standing to bring an action for support of an adult disabled child | Family Code Chapter 154, Subchapter F |
| 49 | Section 450 (regarding nontestamentary transfers) now specifically applies to securities and accounts with financial institutions (applies to persons dying on or after September 1, 1997) | Probate Code § 450 |
| 50 | Payment of claims and sale of property without guardianship increased from $25,000 to $50,000 (effective September 1, 1997) | Probate Code §§ 887, 889 |
| 51 | Environmental liability of trustees was limited | Trust Code § 114.001, Health & Safety Code § 361.652 |
| 52 | The ability to make inter vivos payments of life insurance benefits was enhanced for policies issued on or after September 1, 1997 | Insurance Code, Art. 3.50-6 |
| 53 | Effective September 1, 1997, drivers licenses may no longer be used as organ donor cards. Separate organ donor cards provided by organ donor organizations are to be used instead. | Health & Safety Code, Chapter 692 |
Copyright 1997, 1998 by Glenn M. Karisch Last Revised May 24, 1998