H.B. No. 2189

REPORTS BY PERSONAL REPRESENTATIVES; PRIORITY OF ADMINISTRATIVE CLAIMS IN GUARDIANSHIPS

Effective Date: September 1, 1997

AN ACT

relating to the payment of claims by guardians and certain reports and accounts submitted by guardians or personal representatives of estates.

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

SECTION 1.  Section 399(a), Texas Probate Code, is amended to read as follows:

(a)  Estates of Decedents Being Administered Under Order of Court. The personal representative of the estate of a decedent being administered under order of court shall, upon the expiration of twelve (12) months from the date of qualification and receipt of letters, return to the court an exhibit in writing under oath setting forth a list of all claims against the estate that were presented to him within the period covered by the account, specifying which have been allowed by him, which have been paid, which have been rejected and the date when rejected, which have been sued upon, and the condition of the suit, and show:

(1)  All property that has come to his knowledge or into his possession not previously listed or inventoried as property of the estate.

(2)  Any changes in the property of the estate which have not been previously reported.

(3)  A complete account of receipts and disbursements for the period covered by the account, and the source and nature thereof, with receipts of principal and income to be shown separately.

(4)  A complete, accurate and detailed description of the property being administered, the condition of the property and the use being made thereof, and, if rented, the terms upon and the price for which rented.

(5)  The cash balance on hand and the name and location of the depository wherein such balance is kept; also, any other sums of cash in savings accounts or other form, deposited subject to court order, and the name and location of the depository thereof.

(6)  A detailed description of personal property of the estate, which shall, with respect to bonds, notes, and other securities, include the names of obligor and obligee, or if payable to bearer, so state; the date of issue and maturity; the rate of interest; serial or other identifying numbers; in what manner the property is secured; and other data necessary to identify the same fully, and how and where held for safekeeping.

(7)  A statement that, during the period covered by the account, all tax returns due have been filed and that all taxes due and owing have been paid and a complete account of the amount of the taxes, the date the taxes were paid, and the governmental entity to which the taxes were paid.

(8)  If any tax return due to be filed or any taxes due to be paid are delinquent on the filing of the account, a description of the delinquency and the reasons for the delinquency.

(9)  A statement that the personal representative has paid all the required bond premiums for the accounting period.

SECTION 2.  Section 405, Texas Probate Code, as amended by Chapters 712 and 957, Acts of the 73rd Legislature, Regular Session, 1993, is amended to read as follows:

Sec. 405.  ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF DECEDENTS [AND PERSONS AND ESTATES OF WARDS]. When administration of the estate of a decedent[, or guardianship of person or estate, or of the person and estate of a ward,] is to be settled and closed, the personal representative of such estate [or of such ward] shall present to the court his verified account for final settlement. In such account it shall be sufficient to refer to the inventory without describing each item of property in detail, and to refer to and adopt any and all proceedings had in the administration [or guardianship, as the case may be,] concerning sales, renting or hiring, leasing for mineral development, or any other transactions on behalf of the estate [or of the ward, as the case may be,] including exhibits, accounts, and vouchers previously filed and approved, without restating the particular items thereof. Each final account, however, shall be accompanied by proper vouchers in support of each item thereof not already accounted for and shall show, either by reference to any proceedings authorized above or by statement of the facts:

[(a) As to Estates of Decedents.]

1.  The property belonging to the estate which has come into the hands of the executor or administrator.

2.  The disposition that has been made of such property.

3.  The debts that have been paid.

4.  The debts and expenses, if any, still owing by the estate.

5.  The property of the estate, if any, still remaining on hand.

6.  The persons entitled to receive such estate, their relationship to the decedent, and their residence, if known, and whether adults or minors, and, if minors, the names of their guardians, if any.

7.  All advancements or payments that have been made, if any, by the executor or administrator from such estate to any such person.

8.  The tax returns due that have been filed and the taxes due and owing that have been paid and a complete account of the amount of taxes, the date the taxes were paid, and the governmental entity to which the taxes were paid.

9.  If any tax return due to be filed or any taxes due to be paid are delinquent on the filing of the account, a description of the delinquency and the reasons for the delinquency.

10.  The personal representative has paid all required bond premiums.

[(b)  As to Estates of Wards.

[1.  The property, rents, revenues, and profits received by the guardian, and belonging to his ward, during his guardianship.

[2.  The disposition made of such property, rents, revenues, and profits.

[3.  The expenses and debts, if any, against the estate remaining unpaid.

[4.  The tax returns due that have been filed and the taxes due and owing that have been paid and a complete account of the amount of taxes, the date the taxes were paid, and the governmental entity to which the taxes were paid.

[5.  If any tax return due to be filed or any taxes due to be paid are delinquent on the filing of the account of taxes paid, a description of the delinquency and the reasons for the delinquency.

[6.  The property of the estate remaining in the hands of such guardian, if any.

[7.  Such other facts as appear necessary to a full and definite understanding of the exact condition of the guardianship.]

SECTION 3.  Section 743(b), Texas Probate Code, is amended to read as follows:

(b)  The guardian of the person, whether or not there is a separate guardian of the estate, shall submit to the court an annual report by sworn affidavit that contains the following information:

(1)  the guardian's current name, address, and phone number;

(2)  the ward's current:

(A)  name, address, and phone number; and

(B)  age and date of birth;

(3)  the type of home in which the ward resides, described as the ward's own; a nursing, guardian's, foster, or boarding home; a relative's home, and the ward's relationship to the relative; a hospital or medical facility; or other type of residence;

(4)  the length of time the ward has resided in the present home and, if there has been a change in the ward's residence in the past year, the reason for the change;

(5)  the date the guardian most recently saw the ward, and how frequently the guardian has seen the ward in the past year;

(6)  a statement indicating whether or not the guardian has possession or control of the ward's estate;

(7)  the following statements concerning the ward's health during the past year:

(A)  whether the ward's mental health has improved, deteriorated, or remained unchanged, and a description if there has been a change; and

(B)  whether the ward's physical health has improved, deteriorated, or remained unchanged, and a description if there has been a change;

(8)  a statement concerning whether or not the ward has regular medical care, and the ward's treatment or evaluation by any of the following persons during the last year, including the name of that person, and the treatment involved:

(A)  a physician;

(B)  a psychiatrist, psychologist, or other mental health care provider;

(C)  a dentist;

(D)  a social or other caseworker; or

(E)  another individual who provided treatment;

(9)  a description of the ward's activities during the past year, including recreational, educational, social, and occupational activities, or if no activities are available or if the ward is unable or has refused to participate in them, a statement to that effect;

(10)  the guardian's evaluation of the ward's living arrangements as excellent, average, or below average, including an explanation if the conditions are below average;

(11)  the guardian's evaluation of whether the ward is content or unhappy with the ward's living arrangements;

(12)  the guardian's evaluation of unmet needs of the ward;

(13)  a statement of whether or not the guardian's power should be increased, decreased, or unaltered, including an explanation if a change is recommended;

(14)  a statement that the guardian has paid the bond premium for the next reporting period; and

(15) [(14)]  any additional information the guardian desires to share with the court regarding the ward.

SECTION 4.  Section 749, Texas Probate Code, is amended to read as follows:

Sec. 749.  ACCOUNT FOR FINAL SETTLEMENT OF ESTATES OF WARDS. When a guardianship of the estate is settled and closed, the guardian shall present to the court the guardian's verified account for final settlement. In the account it shall be sufficient to refer to the inventory without describing each item of property in detail and to refer to and adopt any and all guardianship proceedings that concern sales, renting or hiring, leasing for mineral development, or any other transaction on behalf of the guardianship estate, including an exhibit, account, or voucher previously filed and approved, without restating the particular items. Each final account shall be accompanied by proper vouchers in support of each item not already accounted for and shall show, either by reference to any proceedings authorized above or by statement of the facts:

(1)  the property, rents, revenues, and profits received by the guardian, and belonging to the ward, during the term of the guardianship;

(2)  the disposition made of the property, rents, revenues, and profits;

(3)  the expenses and debts against the estate that remain unpaid, if any;

(4)  the property of the estate that remains in the hands of the guardian, if any;

(5)  that the guardian has paid all required bond premiums;

(6)  the tax returns the guardian has filed during the guardianship;

(7)  the amount of taxes the ward owed during the guardianship that the guardian has paid;

(8)  a complete account of the taxes the guardian has paid during the guardianship, including the amount of the taxes, the date the guardian paid the taxes, and the name of the governmental entity to which the guardian paid the taxes;

(9)  a description of all current delinquencies in the filing of tax returns and the payment of taxes and a reason for each delinquency; and

(10) [(5)]  other facts as appear necessary to a full and definite understanding of the exact condition of the guardianship.

SECTION 5.  Section 805, Texas Probate Code, is amended to read as follows:

Sec. 805.  ORDER OF PAYMENT OF CLAIMS. (a)  The guardian shall pay a claim against the estate of the guardian's ward that has been allowed and approved or established by suit, as soon as practicable, in the following order, except as provided by Subsection (b) of this section:

(1)  expenses for the care, maintenance, and education of the ward or the ward's dependents;

(2)  funeral expenses of the ward and expenses of the ward's last illness, if the guardianship is kept open after the death of the ward as provided under this chapter, except that any claim against the estate of a ward that has been allowed and approved or established by suit before the death of the ward shall be paid before the funeral expenses and expenses of the last illness;

(3)  expenses of administration; and

(4)  other claims against the ward or the ward's estate.

(b)  If the estate is insolvent, the guardian shall give first priority to the payment of a claim relating to the administration of the guardianship. The guardian shall pay other claims against the ward's estate in the order prescribed by Subsection (a) of this section.

(c)  A claimant whose claim has not been paid may petition the court for determination of the claim at any time before it is barred by the applicable statute of limitations and on due proof procure an order for its allowance and payment from the estate.

SECTION 6.  A court may modify any guardianship in effect on September 1, 1997, to conform with the requirements of Section 805, Texas Probate Code, as amended by this Act, on the court's own motion or on application by the ward, guardian, or any other interested person or entity.

SECTION 7.  The change in law made by Sections 1-4 of this Act to the Texas Probate Code apply only to an account or report filed on or after the effective date of this Act. An account or report filed before the effective date of this Act is governed by the law applicable on the date the account or report was filed, and that law is continued in effect for that purpose.

SECTION 8.  Except as provided by Section 6 of this Act:

(1)  the change in law made by this Act to Section 805, Texas Probate Code, applies only to proceedings for the appointment of a guardian instituted on or after the effective date of this Act; and

(2)  a proceeding for the appointment of a guardian that is instituted before the effective date of this Act is governed by the law in effect on the date the proceedings were instituted, and the former law is continued in effect for that purpose.

SECTION 9.  This Act takes effect September 1, 1997.

SECTION 10.  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 31, 1997.