H.B. No. 2003

EMERGENCY INTERVENTION ORDERS CONCERNING DECEDENTS' ESTATES

Effective Date: September 1, 1997

AN ACT

relating to emergency intervention proceedings concerning a decedent's estate.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1.  Part 2, Chapter XII, Texas Probate Code, as added by Chapter 712, Acts of the 73rd Legislature, Regular Session, 1993, is transferred and redesignated as Part 3, Chapter V, Texas Probate Code, and is renumbered and amended to read as follows:

PART 3 [2]. EMERGENCY INTERVENTION PROCEEDINGS;

FUNERAL AND BURIAL EXPENSES

Sec. 108 [520].  TIME TO FILE EMERGENCY APPLICATION. An applicant may file an application requesting emergency intervention by a court exercising probate jurisdiction to provide for the payment of funeral and burial expenses or the protection and storage of personal property owned by the decedent that was located in rented accommodations on the date of the decedent's death with the clerk of the court in the county of domicile of the decedent or the county in which the rental accommodations that contain the decedent's personal property are located. The application must be filed not earlier than the third day after the date of the decedent's death and not later than the 90th day after the date of the decedent's death.

Sec. 109 [521].  ELIGIBLE APPLICANTS FOR EMERGENCY INTERVENTION. A person qualified to serve as an administrator under Section 77 of this code may file an emergency intervention application.

Sec. 110 [521A].  REQUIREMENTS FOR EMERGENCY INTERVENTION. An applicant may file an emergency application with the court under Section 108 [520] of this code only if an application has not been filed and is not pending under Section 81, 82, 137, or 145 of this code and the applicant:

(1)  needs to obtain funds for the funeral and burial of the decedent; or

(2)  needs to gain access to rental accommodations in which the decedent's personal property is located and the applicant has been denied access to those accommodations.

Sec. 111 [522].  CONTENTS OF EMERGENCY INTERVENTION APPLICATION FOR FUNERAL AND BURIAL EXPENSES. (a) An application for emergency intervention to obtain funds needed for a decedent's funeral and burial expenses must be sworn and must contain:

(1)  the name, address, social security number, and interest of the applicant;

(2)  the facts showing an immediate necessity for the issuance of an emergency intervention order under this section by the court;

(3)  the date of the decedent's death, place of death, decedent's residential address, and the name and address of the funeral home holding the decedent's remains;

(4)  any known or ascertainable heirs and devisees of the decedent and the reason:

(A)  the heirs and devisees cannot be contacted; or

(B)  the heirs and devisees have refused to assist in the decedent's burial;

(5)  a description of funeral and burial procedures necessary and a statement from the funeral home that contains a detailed and itemized description of the cost of the funeral and burial procedures; and

(6)  the name and address of an individual, entity, or financial institution, including an employer, that is in possession of any funds of or due to the decedent, and related account numbers and balances, if known by the applicant.

(b)  The application shall also state whether there are any written instructions from the decedent relating to the type and manner of funeral or burial the decedent would like to have. The applicant shall attach the instructions, if available, to the application and shall fully comply with the instructions. If written instructions do not exist, the applicant may not permit the decedent's remains to be cremated unless the applicant obtains the court's permission to cremate the decedent's remains.

Sec. 112 [522A].  CONTENTS FOR EMERGENCY INTERVENTION APPLICATION FOR ACCESS TO PERSONAL PROPERTY. An application for emergency intervention to gain access to rental accommodations of a decedent at the time of the decedent's death that contain the decedent's personal property must be sworn and must contain:

(1)  the name, address, social security number, and interest of the applicant;

(2)  the facts showing an immediate necessity for the issuance of an emergency intervention order by the court;

(3)  the date and place of the decedent's death, the decedent's residential address, and the name and address of the funeral home holding the decedent's remains;

(4)  any known or ascertainable heirs and devisees of the decedent and the reason:

(A)  the heirs and devisees cannot be contacted; or

(B)  the heirs and devisees have refused to assist in the protection of the decedent's personal property;

(5)  the type and location of the decedent's personal property and the name of the person in possession of the property; and

(6)  the name and address of the owner or manager of the decedent's rental accommodations and whether access to the accommodations is necessary.

Sec. 113 [523].  ORDERS OF EMERGENCY INTERVENTION. (a) If the court determines on review of an application filed under Section 108 [520] of this code that emergency intervention is necessary to obtain funds needed for a decedent's funeral and burial expenses, the court may order funds of the decedent held by an employer, individual, or financial institution to be paid directly to a funeral home only for reasonable and necessary attorney's fees for the attorney who obtained the order granted under this section, for court costs for obtaining the order, and for funeral and burial expenses not to exceed $5,000 as ordered by the court to provide the decedent with a reasonable, dignified, and appropriate funeral and burial.

(b)  If the court determines on review of an application filed under Section 108 [520] of this code that emergency intervention is necessary to gain access to accommodations rented by the decedent at the time of the decedent's death that contain the decedent's personal property, the court may order one or more of the following:

(1)  the owner or agent of the rental accommodations shall grant the applicant access to the accommodations at a reasonable time and in the presence of the owner or agent;

(2)  the applicant and owner or agent of the rental accommodations shall jointly prepare and file with the court a list that generally describes the decedent's property found at the premises;

(3)  the applicant or the owner or agent of the rental accommodations may remove and store the decedent's property at another location until claimed by the decedent's heirs; [or]

(4)  the applicant has only the powers that are specifically stated in the order and that are necessary to protect the decedent's property that is the subject of the application; or

(5)  funds of the decedent held by an employer, individual, or financial institution to be paid to the applicant for reasonable and necessary attorney's fees and court costs for obtaining the order.

(c)  The court clerk may issue certified copies of an emergency intervention order on request of the applicant only until the 90th day after the date the order was signed or the date a personal representative is qualified, whichever occurs first.

(d)  A person who is furnished with a certified copy of an emergency intervention order within the period described by Subsection (c) of this section is not personally liable for the person's actions that are taken in accordance with and in reliance on the order.

Sec. 114 [524].  TERMINATION. (a) All power and authority of an applicant under an emergency intervention order cease to be effective or enforceable on the 90th day after the date the order was issued or on the date a personal representative is qualified, whichever occurs first.

(b)  If a personal representative has not been appointed when an emergency intervention order issued under Section 113(b) [523(b)] of this code ceases to be effective, a person who is in possession of the decedent's personal property that is the subject of the order, without incurring civil liability, may:

(1)  release the property to the decedent's heirs; or

(2)  dispose of the property under Subchapter C, Chapter 54, Property Code, or Section 7.209 or 7.210, Business & Commerce Code.

Sec. 115 [525].  LIMITATION ON RIGHT OF SURVIVING SPOUSE TO CONTROL DECEASED'S BURIAL OR CREMATION. (a) An application under this section may be filed by:

(1)  the executor of the deceased's will; or

(2)  the next of kin of the deceased, the nearest in order of descent first, and so on, and next of kin includes the deceased's descendants who legally adopted the deceased or who have been legally adopted by the deceased.

(b)  An application under this section must be under oath and must establish:

(1)  whether the deceased died intestate or testate;

(2)  the surviving spouse is alleged to be a principal or accomplice in a wilful act which resulted in the death of the deceased; and

(3)  good cause exists to limit the right of the surviving spouse to control the burial and interment or cremation of the deceased spouse.

(c)  After notice and hearing, without regard to whether the deceased died intestate or testate, a court may limit the right of a surviving spouse, whether or not the spouse has been designated by the deceased's will as the executor of a deceased spouse's estate, to control the burial and interment or cremation of the deceased spouse if the court finds that there is good cause to believe that the surviving spouse is the principal or an accomplice in a wilful act which resulted in the death of the deceased spouse.

(d)  If the court limits the surviving spouse's right of control, as provided by Subsection (c), the court shall designate and authorize a person to make burial or cremation arrangements.

SECTION 2.  This Act takes effect September 1, 1997. The changes in law made by this Act apply only to an application that is filed on or after the effective date of this Act. An application that is filed before the effective date of this Act is governed by the law in effect at the time the application was filed, and the former law is continued in effect for that purpose.

SECTION 3.  The importance of this legislation and the crowded condition of the calendars in both houses create an emergency and an imperative public necessity that the constitutional rule requiring bills to be read on three several days in each house be suspended, and this rule is hereby suspended.


Courtesy of Glenn M. Karisch, Ikard & Golden, P. C., Austin, Texas. This page was last revised on May 12, 1997.