H.B. No. 2007

REPEAL INFORMAL PROBATE, BEEF UP MUNIMENT OF TITLE

Effective Date: September 1, 1997

AN ACT

relating to the administration of a decedent's estate.

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

SECTION 1.  Part 1, Chapter V, Texas Probate Code, is amended by amending Section 89A and adding Sections 89B and 89C to read as follows:

Sec. 89A.  CONTENTS OF APPLICATION FOR PROBATE OF WILL AS MUNIMENT OF TITLE. (a)  A written will shall, if within the control of the applicant, be filed with the application for probate as a muniment of title, and shall remain in the custody of the county clerk unless removed from the custody of the clerk by order of a proper court. An application for probate of a will as a muniment of title shall state:

(1)  The name and domicile of each applicant.

(2)  The name, age if known, and domicile of the decedent, and the fact, time, and place of death.

(3)  Facts showing that the court has venue.

(4)  That the decedent owned real or personal property, or both, describing the property generally, and stating its probable value.

(5)  The date of the will, the name and residence of the executor named in the will, if any, and the names and residences of the subscribing witnesses, if any.

(6)  Whether a child or children born or adopted after the making of such will survived the decedent, and the name of each such survivor, if any.

(7)  That there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate.

(8)  Whether the decedent was ever divorced, and if so, when and from whom.

(9)  The social security number of the applicant and of the decedent.

(10)  Whether the state, a governmental agency of the state, or a charitable organization is named by the will as a devisee.

The foregoing matters shall be stated and averred in the application to the extent that they are known to the applicant, or can with reasonable diligence be ascertained by the applicant, and if any of such matters is not stated or averred in the application, the application shall set forth the reason why such matter is not so stated and averred.

(b)  When a written will cannot be produced in court, in addition to the requirements of Subsection (a) of this section, the application shall state:

(1)  The reason why such will cannot be produced.

(2)  The contents of such will, to the extent known.

(3)  The date of such will and the executor appointed in the will, if any, to the extent known.

(4)  The name, age, marital status, and address, if known, and the relationship to the decedent, if any, of each devisee, and of each person who would inherit as an heir in the absence of a valid will, and, in cases of partial intestacy, of each heir.

(c)  An application for probate of a nuncupative will as muniment of title shall contain all applicable statements required with respect to written wills in the foregoing subsections and also:

(1)  The substance of testamentary words spoken.

(2)  The names and residences of the witnesses thereto.

Sec. 89B.  PROOF REQUIRED FOR PROBATE OF A WILL AS A MUNIMENT OF TITLE. (a)  General Proof. Whenever an applicant seeks to probate a will as a muniment of title, the applicant must first prove to the satisfaction of the court:

(1)  That the person is dead, and that four years have not elapsed since the person's death and prior to the application; and

(2)  That the court has jurisdiction and venue over the estate; and

(3)  That citation has been served and returned in the manner and for the length of time required by this Code; and

(4)  That there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate.

(b)  To obtain probate of a will as a muniment of title, the applicant must also prove to the satisfaction of the court:

(1)  If the will is not self-proved as provided by this Code, that the testator, at the time of executing the will, was at least 18 years of age, or was or had been lawfully married, or was a member of the armed forces of the United States or of the auxiliaries of the armed forces of the United States, or of the Maritime Service of the United States, and was of sound mind; and

(2)  If the will is not self-proved as provided by this Code, that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; and

(3)  That such will was not revoked by the testator.

Sec. 89C.  PROBATE OF WILLS AS MUNIMENTS OF TITLE. (a)  In each instance where the court is satisfied that a will should be admitted to probate, and where the court is further satisfied that there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate, or for other reason finds that there is no necessity for administration upon such estate, the court may admit such will to probate as a muniment of title.

(b)  If a person who is entitled to property under the provisions of the will cannot be ascertained solely by reference to the will or if a question of construction of the will exists, on proper application and notice as provided by Chapter 37, Civil Practice and Remedies Code, the court may hear evidence and include in the order probating the will as a muniment of title a declaratory judgment construing the will or determining those persons who are entitled to receive property under the will and the persons' shares or interests in the estate. The judgment is conclusive in any suit between any person omitted from the judgment and a bona fide purchaser for value who has purchased real or personal property after entry of the judgment without actual notice of the claim of the omitted person to an interest in the estate. Any person who has delivered property of the decedent to a person declared to be entitled to the property under the judgment or has engaged in any other transaction with the person in good faith after entry of the judgment is not liable to any person for actions taken in reliance on the judgment.

(c)  The order admitting a will to probate as a muniment of title shall constitute sufficient legal authority to all persons owing any money to the estate of the decedent, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the estate, and to persons purchasing from or otherwise dealing with the estate, for payment or transfer, without liability, to the persons described in such will as entitled to receive the particular asset without administration. The person or persons entitled to property under the provisions of such wills shall be entitled to deal with and treat the properties to which they are so entitled in the same manner as if the record of title thereof were vested in their names.

(d)  Unless waived by the court, before the 181st day, or such later day as may be extended by the court, after the date a will is admitted to probate as a muniment of title, the applicant for probate of the will shall file with the clerk of the court a sworn affidavit stating specifically the terms of the will that have been fulfilled and the terms of the will that have been unfulfilled. Failure of the applicant for probate of the will to file such affidavit shall not otherwise affect title to property passing under the terms of the will.

SECTION 2.  Section 131A(b), Texas Probate Code, is amended to read as follows:

(b)  Any person may file with the clerk of the court a written application for the appointment of a temporary administrator of a decedent's estate under this section. The application must be verified and must include the information required by Section 81 of this code if the decedent died testate or Section 82 of this code if the decedent died intestate and an affidavit that sets out:

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

(2)  the facts showing an immediate necessity for the appointment of a temporary administrator;

(3)  the requested powers and duties of the temporary administrator;

(4)  a statement that the applicant is entitled to letters of temporary administration and is not disqualified by law from serving as a temporary administrator; and

(5)  a description of the real and personal property that the applicant believes to be in the decedent's estate.

SECTION 3.  Section 137(a), Texas Probate Code, is amended to read as follows:

(a)  The distributees of the estate of a decedent who dies intestate shall be entitled thereto, to the extent that the assets, exclusive of homestead and exempt property, exceed the known liabilities of said estate, exclusive of liabilities secured by homestead and exempt property, without awaiting the appointment of a personal representative when:

(1)  No petition for the appointment of a personal representative is pending or has been granted; and

(2)  Thirty days have elapsed since the death of the decedent; and

(3)  The value of the entire assets of the estate, not including homestead and exempt property, does not exceed $50,000; and

(4)  There is filed with the clerk of the court having jurisdiction and venue an affidavit sworn to by two disinterested witnesses, by all such distributees that have legal capacity, and, if the facts warrant, by the natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is also a distributee, which affidavit shall be examined by the judge of the court having jurisdiction and venue; and

(5)  The affidavit shows the existence of the foregoing conditions and includes a list of all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history facts concerning heirship that show the distributees' rights to receive the money or property of the estate or to have such evidences of money, property, or other rights of the estate as are found to exist transferred to them as heirs or assignees; and

(6)  The judge, in the judge's discretion, finds that the affidavit conforms to the terms of this section and approves the affidavit; and

(7)  A copy of the affidavit, certified to by said clerk, is furnished by the distributees of the estate to the person or persons owing money to the estate, having custody or possession of property of the estate, or acting as registrar, fiduciary or transfer agent of or for evidences of interest, indebtedness, property, or other right belonging to the estate.

SECTION 4.  The heading to Section 320, Texas Probate Code, is amended to read as follows:

Sec. 320.  ORDER OF PAYMENT OF CLAIMS AND ALLOWANCES.

SECTION 5.  Chapter XII, Texas Probate Code, as added by Chapter 712, Acts of the 73rd Legislature, Regular Session, 1993, is repealed.

SECTION 6.  This Act takes effect September 1, 1997, and applies only to the estate of a decedent who dies on or after that date. The estate of a decedent who dies before the effective date of this Act is governed by the law in effect at the time of the decedent's death, and the former law is continued in effect for that purpose.

SECTION 7.  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 26, 1997.