H.B. No. 2007

REPEAL OF INFORMAL PROBATE; MODIFICATION OF MUNIMENT OF TITLE STATUTES

Bill Description

Governor Bush signed HB 2007 on May 31, 1997. HB 2007 becomes effective on September 1, 1997.

HB 2007 principally does two things: (1) It beefs up the statutes governing muniments of title (formerly just Section 89A, but now Sections 89B and 89C as well); and (2) It repeals informal probate. Here are the sections of the Probate Code affected by HB 2007:

Section Description
89A Old 89A is now 89C. New 89A is entitled "Contents of Application for Probate of Will as Muniment of Title." It generally duplicates Section 81, but it requires a statement that "there are no unpaid debts owing by the estate. . .", even though old 89A (and new 89C) permits muniments of title even if there are debts if the court "finds that there is no necessity for administration. . . ." The probable solution to this problem (if you want a will probated as a muniment and there are debts outstanding) is to ignore the problem language in 89A and plead based on 89C.
89B This new section is entitled "Proof Required for Probate of a Will as a Muniment of Title." It generally tracks the proof requirements for other wills, and therein lies the problem: New 89B, in a manner similar to the problem with new 89A described above, requires proof that "four years have not elapsed since the persons's death. . .," even though Section 73 permits probate of a will as a muniment after 4 years if the applicant was not in default in not filing sooner. New 89B also requires proof that there are no unpaid debts, even though new 89C permits probate of the will as a muniment with debts outstanding in some cases (see discussion of 89A, above). Again, the probable solution to this conflict is to plead and prove what is permitted under new Section 89C (which is old Section 89A).
89C This is old Section 89A. (And you thought it was just fine as it was.)
131A The information required by Sections 81 or 82 must be pled when seeking a temporary administration in a decedent's estate.
137 Small estate affidavit must include relevant family history facts.
320 The heading for this section is amended to read "Order of Payment of Claims and Allowances."
501--525 Chapter XII, "Informal Probate" is repealed.


The legislative history of HB 2007 indicates that the legislature did not intend to change the availability of probating a will as a muniment of title. Thus, if probate as a muniment of title was permitted under the old law, it still should be permitted under the new law. However, the pleading and proof problems noted above in new Sections 89A and 89B could be a practical impediment. Hopefully this will get fixed next session.

HB 2007 takes effect September 1, 1997, and applies to the estates of decedents dying on or after that date. The old law applies to persons dying before September 1, 1997.


Link to:


Copyright © 1997 by Glenn M. Karisch. This page was last revised on June 23, 1997.