1997 Texas Legislative Update
By Glenn M. Karisch
Ikard & Golden, P. C.
823 Congress Avenue, Suite 910
Austin, Texas 78701
(512) 472-4542/FAX (512) 472-3669
Email: karisch@io.com
Web: http://www.io.com/~karisch
Presented to
The Probate, Trusts and Estates Section of
The Dallas Bar Association
September 23, 1997
| Most of these materials are taken from the author's Texas Probate web site. The site has other materials not reproduced here. To access the site, point your web browser at "http://www.io.com/~karisch/97probate.html". |
Copyright © 1997 by Glenn M. Karisch, All Rights Reserved.
Contents
The 42 Bills That Made It -- 1997 Bills Affecting Probate and Trust Law That Were Enacted into Law
Attorney's Checklist for 1997 Legislative Changes
1997 Amendments to the Texas Probate Code
1997 Amendments to the Texas Trust Code
Recodified Title 1 of The Texas Family Code
Summary of 1997 Legislative Changes Affecting Disability Planning
Table -- Statutory Disability Planning Forms (After 1997 Changes)
The New Statutory Durable Power of Attorney Form
The New Directive to Physicians Form
The New Declaration for Mental Health Treatment Form
Modifying Existing Guardianships So That 1997 Legislation Applies
Application For Modification of Guardianship to Conform With 1997 Legislation
Order Modifying Guardianship to Conform With 1997 Legislation
Administrative Order Affecting All Guardianships in Effect on September 1, 1997
The 42 Bills That Made It
1997 Bills Affecting Probate And Trust Law That Were Enacted Into Law
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, Ikard & Golden, P. C., August 26, 1997
| # | 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 |
1997 Amendments to the Texas Probate Code
| This is a compilation of the amendments to the Texas Probate Code made by the 75th Texas
Legislature during the 1997 regular legislative session. Additions are italicized and
underlined.[ Glenn M. Karisch, Ikard & Golden, P. C., August 26, 1997 |
Sec. 3. DEFINITIONS AND USE OF TERMS.
(a) - (hh) [No change]
(ii) "Statutory probate court" means a [refers to any] statutory court designated as a
statutory[presently in existence or created after the passage of this Act, the jurisdiction of which is
limited by statute to the general jurisdiction of a] probate court under Chapter 25, Government
Code. A county court[, and such courts whose statutorily designated name contains the word
"probate." County courts] at law exercising probate jurisdiction is [are] not a statutory probate
court[courts] under this Code unless the court is designated a statutory probate court under
Chapter 25, Government Code. [their statutorily designated name includes the word "probate."]
(jj) - (mm) [No change]
Subsection (ii) amended by HB 1152 (Acts, 75th Legislature, Regular Session, Chapter 52), enacted May 7, 1997,
effective September 1, 1997.
Sec. 5. JURISDICTION OF DISTRICT COURT AND OTHER COURTS OF RECORD WITH RESPECT TO PROBATE PROCEEDINGS AND APPEALS FROM PROBATE ORDERS.
(a) - (f) [No change]
(g) Notwithstanding any other law, a statutory county court created under Chapter 25, Government Code, that has the jurisdiction of a statutory probate court on August 31, 1997, retains that jurisdiction after that date. This subsection expires August 31, 1999.
Subsection (g) added by HB 3086, enacted June 20, 1997, effective September 1, 1997.
Sec. 5A. MATTERS APPERTAINING AND INCIDENT TO AN ESTATE AND OTHER PROBATE COURT JURISDICTION.
(a) [No change]
(b) In proceedings in the statutory probate courts and districts courts, the phrases "appertaining to estates" and "incident to an estate" in this Code include the probate of wills, the issuance of letters testamentary and of administration, and the determination of heirship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land and for the enforcement of liens thereon, all actions for trial of the right of property, all actions to construe wills, the interpretation and administration of testamentary trusts and the applying of constructive trusts, and generally all matters relating to the settlement, partition, and distribution of estates of deceased persons. All statutory probate courts may, in the exercise of their jurisdiction, notwithstanding any other provisions of this Code, hear all suits, actions, and applications filed against or on behalf of any heirship proceeding or decedent's estate, including estates administered by an independent executor; all such suits, actions, and applications are appertaining to and incident to an estate for the purposes of this section. This subsection shall be construed in conjunction with and in harmony with Section 145 and all other sections of this Code dealing with independent executors, but shall not be construed so as to increase permissible judicial control over independent executors. All statutory probate courts shall have the same powers over independent executors that are exercisable by the district courts. In situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court.
(c) - (e) [No change]
Subsection (b) amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September 1, 1997. Section 16 of SB 506 provides:
SECTION 16. This Act takes effect September 1, 1997, and applies only to the estate of a person who dies on or after that
date. An estate of a person who dies before the effective date of this Act is governed by the law in effect on the date of the
person's death, and the former law is continued in effect for that purpose.
Sec. 10B. COMMUNICATIONS OR RECORDS RELATING TO DECEDENT'S CONDITION BEFORE DEATH.
Notwithstanding the Medical Practice Act (Article 4495b, Vernon's Texas Civil Statutes), a person who is a party to a will contest or a proceeding in which a party relies on the mental or testamentary capacity of a decedent before the decedent's death as part of the party's claim or defense is entitled to production of all communications or records relevant to the decedent's condition before the decedent's death. On receipt of a subpoena of communications or records under this section and proof of filing of the will contest or proceeding, by certified copy, the appropriate physician, hospital, medical facility, custodian of records, or other person in possession of the communications or records shall release the communications or records to the party requesting the records without further authorization.
Added by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September 1,
1997. See note following Section 5A regarding effective date of SB 506.
Sec. 36. DUTY AND RESPONSIBILITY OF JUDGE.
(a) It shall be the duty of each county and probate court to use reasonable diligence to see that personal representatives of estates being administered under orders of the court and other officers of the court perform the duty enjoined upon them by law pertaining to such estates. The judge shall annually, if in his opinion the same be necessary, examine the condition of each of said estates and the solvency of the bonds of personal representatives of estates. He shall, at any time he finds that the personal representative's bond is not sufficient to protect such estate, require such personal representatives to execute a new bond in accordance with law. In each case, he shall notify the personal representative, and the sureties on the bond, as provided by law; and should damage or loss result to estates through the gross neglect of the judge to use reasonable diligence in the performance of his duty, he shall be liable on his bond to those damaged by such neglect.
(b) The court may request an applicant or court-appointed fiduciary to produce other information identifying an applicant, decedent, or personal representative, including social security numbers, in addition to identifying information the applicant or fiduciary is required to produce under this code. The court shall maintain the information required under this subsection, and the information may not be filed with the clerk.
Amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September
1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 42. INHERITANCE RIGHTS OF CHILDREN.
(a) [No change]
(b) (1) For the purpose of inheritance, a child is the child of his biological father if the child is born
under circumstances described by Section 151.002 [12.02], Family Code, is adjudicated to be the
child of the father by court decree as provided by Chapter 160 [13], Family Code, was adopted by
his father, or if the father executed a statement of paternity as provided by Section
160.202[13.22], Family Code, or a like statement properly executed in another jurisdiction, so
that he and his issue shall inherit from his father and from his paternal kindred, both descendants,
ascendants, and collaterals in all degrees, and they may inherit from him and his issue. A person
claiming to be a biological child of the decedent, who is not otherwise presumed to be a child of
the decedent, or claiming inheritance through a biological child of the decedent, who is not
otherwise presumed to be a child of the decedent, may petition the probate court for a
determination of right of inheritance. If the court finds by clear and convincing evidence that the
purported father was the biological father of the child, the child is treated as any other child of the
decedent for the purpose of inheritance and he and his issue may inherit from his paternal kindred,
both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his
issue. This section does not permit inheritance by a purported father of a child, whether
recognized or not, if the purported father's parental rights have been terminated.
(b) (2) [No change]
(c) - (d) [No change]
Subdivision (1) of subsection (b) amended by SB 898 (Acts, 75th Legislature, Regular Session, Chapter 165), enacted May
21, 1997, effective September 1, 1997. Note that the same changes to subdivision (1) of subsection (b) also made by SB
506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September 1, 1997. See
note following Section 5A regarding effective date of SB 506.
Sec. 50. NOTICE.
(a) Citation shall be served by registered or certified mail upon all distributees 12 years of age or older whose names and addresses are known, or whose names and addresses can be learned through the exercise of reasonable diligence, provided that the court may in its discretion require that service of citation shall be made by personal service upon some or all of those named as distributees in the application. Citation shall be served as provided by this subsection on the parent, managing conservator, or guardian of a distributee who is younger than 12 years of age, if the name and address of the parent, managing conservator, or guardian is known or can be reasonably ascertained.
(b) If the address of a person or entity on whom citation is required to be served [Unknown
heirs, and known heirs whose addresses] cannot be ascertained, citation shall be served on the
person or entity by publication in the county in which the proceedings are commenced, and if the
decedent resided in another county, then a citation shall also be published in the county of his last
residence. Unknown heirs shall also be served by publication in the manner provided by this
subsection.
(c) - (d) [No change]
Subsections (a) and (b) amended by HB 3088 (Acts, 75th Legislature, Regular Session, Chapter 1130), enacted June 19, 1997, effective September 1, 1997. Section 2 of HB 3088 provides:
SECTION 2. This Act takes effect September 1, 1997, and applies only to an application for determination of heirship
filed on or after that date. An application for determination of heirship filed before the effective date of this Act is governed
by the law in existence on the date on which the application was filed, and the former law is continued in effect for that
purpose.
Sec. 58b. DEVISES AND BEQUESTS THAT ARE VOID.
(a) A devise or bequest of property in a will to an attorney who prepares or supervises the preparation of the will or a devise or bequest of property in a will to an heir or employee of the attorney who prepares or supervises the preparation of the will is void.
(b) This section does not apply to a bequest made to a person who is related within the second degree by consanguinity or affinity to the testator.
Added by SB 1176 (Acts, 75th Legislature, Regular Session, Chapter 1054), enacted June 19, 1997, effective September 1, 1997. Section 2 of SB 1176 provides:
SECTION 2. This Act takes effect September 1, 1997, and applies only to a will executed on or after that date. A will
executed before the effective date of this Act is governed by the law in effect on the date the will was executed, and
that law is continued in effect for that purpose.
Sec. 69. VOIDNESS ARISING AFTER DIVORCE.
(a) If, after making a will, the testator is divorced or the testator's marriage is annulled, all provisions in the will in favor of the testator's former spouse, or appointing such spouse to any fiduciary capacity under the will or with respect to the estate or person of the testator's children, must be read as if the former spouse failed to survive the testator, andshall be null and void and of no effect unless the will expressly provides otherwise.
(b) [No change]
Subsection (a) amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997,
effective September 1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 81. CONTENTS OF APPLICATION FOR LETTERS TESTAMENTARY.
(a) For Probate of a Written Will. A written will shall, if within the control of the applicant, be filed with the application for its probate, and shall remain in the custody of the county clerk unless removed therefrom by order of a proper court. An application for probate of a written will 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 same generally, and stating its probable value.
(5) The date of the will, the name and residence of the executor named therein, if any, and if none be named, then the name and residence of the person to whom it is desired that letters be issued, and also 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 such executor or applicant, or other person to whom it is desired that letters be issued, is not disqualified by law from accepting letters.
(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 him, 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) - (c) [No change]
Subsection (a) amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997,
effective September 1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 82. CONTENTS OF APPLICATION FOR LETTERS OF ADMINISTRATION.
An application for letters of administration when no will, written or oral, is alleged to exist shall state:
(a) The name and domicile of the applicant, relationship to the decedent, if any, and that the applicant is not disqualified by law to act as administrator;
(b) The name and intestacy of the decedent, and the fact, time and place of death;
(c) Facts necessary to show venue in the court to which the application is made;
(d) Whether the decedent owned real or personal property, with a statement of its probable value;
(e) The name, age, marital status and address, if known, and the relationship, if any, of each heir to the decedent;
(f) If known by the applicant at the time of the filing of the application, whether children were born to or adopted by the decedent, with the name and the date and place of birth of each;
(g) If known by the applicant at the time of the filing of the application, whether the decedent was ever divorced, and if so, when and from whom; and
(h) That a necessity exists for administration of the estate, alleging the facts which show such
necessity[; and
[(i) The social security number of the applicant and of the decedent if known].
Amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September
1, 1997. See note following Section 5A regarding effective date of SB 506.
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.
Amended by HB 2007 (Acts, 75th Legislature, Regular Session, Chapter 540), enacted May 31, 1997, effective September 1, 1997. Section 6 of HB 2007 provides:
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.
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.
Amended by HB 2007 (Acts, 75th Legislature, Regular Session, Chapter 540), enacted May 31, 1997, effective September
1, 1997. See Section 89A regarding the effective date of HB 2007.
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.
Amended by HB 2007 (Acts, 75th Legislature, Regular Session, Chapter 540), enacted May 31, 1997, effective September
1, 1997. See Section 89A regarding the effective date of HB 2007.
Sec. 105A. APPOINTMENT AND SERVICE OF FOREIGN BANKS AND TRUST COMPANIES IN FIDUCIARY CAPACITY.
(a) - (b) [No change]
(c) No foreign bank or trust company shall establish or maintain any branch office, agency or other place of business within this state, or shall in any way solicit, directly or indirectly, any fiduciary business in this state of the types embraced by subdivision (a) hereof. Except as authorized herein or as may otherwise be authorized by the laws of this state, no foreign bank or trust company shall act in a fiduciary capacity in this state. Nothing in this Section shall be construed to authorize foreign banks and trust companies to issue or to sell or otherwise market or distribute in this state any investment certificates, trust certificates, or other types of securities (including without limiting the generality of the foregoing any securities of the types authorized by Chapter 7 of the Insurance Code of 1951 prior to the repeal thereof), or to conduct any activities or exercise any powers of the type embraced and regulated by the Texas Banking Act (Article 342-1.001 et seq., Vernon's Texas Civil Statutes) or the Texas Trust Company Act other than those conducted and exercised in a fiduciary capacity under the terms and conditions hereof.
(d) - (f) [No change]
Amended by HB 1870 (Acts, 75th Legislature, Regular Session, Chapter 769), enacted June 17, 1997, effective September
1, 1997.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective September 1, 1997. Section 2 of HB 2003 provides as follows:
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.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective
September 1, 1997. See note regarding effective date following Section 108.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective
September 1, 1997. See note regarding effective date following Section 108.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective
September 1, 1997. See note regarding effective date following Section 108.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective
September 1, 1997. See note regarding effective date following Section 108.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective
September 1, 1997. See note regarding effective date following Section 108.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective
September 1, 1997. See note regarding effective date following Section 108.
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.
Amended by HB 2003 (Acts, 75th Legislature, Regular Session, Chapter 1199), enacted May 21, 1997, effective
September 1, 1997. See note regarding effective date following Section 108.
Sec. 131A. APPOINTMENT OF TEMPORARY ADMINISTRATORS.
(a) [No change]
(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.
(c) - (j) [No change]
Subsection (b) amended by HB 2007 (Acts, 75th Legislature, Regular Session, Chapter 540), enacted May 31, 1997,
effective September 1, 1997. See Section 89A regarding the effective date of HB 2007.
Sec. 137. COLLECTION OF SMALL ESTATES UPON AFFIDAVIT.
(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.
(b) - (d) [No change]
Subsection (a) amended by HB 2007 (Acts, 75th Legislature, Regular Session, Chapter 540), enacted May 31, 1997,
effective September 1, 1997. See Section 89A regarding the effective date of HB 2007.
Sec. 146. PAYMENT OF CLAIMS AND DELIVERY OF EXEMPTIONS AND ALLOWANCES.
(a) [No change]
(b) Secured Claims for Money. Within six months after the date letters are granted or within four
months after the date notice is received under Section 295, whichever is later, a creditor with a
claim for money secured by real or personal property of the estate must give notice to [notify] the
independent executor [by certified or registered mail] of the creditor's election to have the
creditor's claim approved as a matured secured claim to be paid in due course of administration.
If the election is not made, the claim is a preferred debt and lien against the specific property
securing the indebtedness and shall be paid according to the terms of the contract that secured the
lien, and the claim may not be asserted against other assets of the estate. The independent
executor may pay the claim before the claim matures if paying the claim before maturity is in the
best interest of the estate.
(c) [No change]
(d) Notice Required of Unsecured Creditor. An unsecured creditor who has a claim for money against an estate and receives a notice under Section 294(d) shall give notice to the independent executor of the nature and amount of the claim not later than the 120th day after the date on which the notice is received or the claim is barred.
(e) Placement of Notice. Notice required by Subsections (b) and (d) must be contained in:
(1) a written instrument that is hand-delivered with proof of receipt or mailed by certified mail, return receipt requested, to the independent executor or the executor's attorney;
(2) a pleading filed in a lawsuit with respect to the claim; or
(3) a written instrument or pleading filed in the court in which the administration of the estate is pending.
Subsection (b) amended and subsections (d) and (e) added by SB 506 (Acts, 75th Legislature, Regular Session, Chapter
1302), enacted June 20, 1997, effective September 1, 1997. See note following Section 5A regarding effective date of SB
506.
Sec. 234. EXERCISE OF POWERS WITH AND WITHOUT COURT ORDER.
(a) Powers To Be Exercised Under Order of the Court. The personal representative of the estate of any person may, upon application and order authorizing same, renew or extend any obligation owing by or to such estate. When a personal representative deems it for the interest of the estate, he may, upon written application to the court, and by order granting authority:
(1) Purchase or exchange property;
(2) Take claims or property for the use and benefit of the estate in payment of any debt due or owing to the estate;
(3) Compound bad or doubtful debts due or owing to the estate;
(4) Make compromises or settlements in relation to property or claims in dispute or litigation;
(5) Compromise or pay in full any secured claim which has been allowed and approved as required by law against the estate by conveying to the holder of such claim the real estate or personalty securing the same, in full payment, liquidation, and satisfaction thereof, and in consideration of cancellation of notes, deeds of trust, mortgages, chattel mortgages, or other evidences of liens securing the payment of such claim;
(6) Abandon the administration of property of the estate that is burdensome or worthless. Abandoned real or personal property may be foreclosed by a secured party, trustee, or mortgagee without further order of the court.
(b) [No change]
Subsection (a) amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997,
effective September 1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 281. EXEMPT PROPERTY LIABLE FOR CERTAIN DEBTS.
The exempt property, other than the homestead or any allowance made in lieu thereof, shall be
liable for the payment of Class 1 claims [the funeral expenses and the expenses of last sickness of
the deceased, when claims are presented within the time prescribed therefor], but such property
shall not be liable for any other debts of the estate.
Amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September
1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 290. FAMILY ALLOWANCE PREFERRED.
The family allowance made for the support of the surviving spouse and minor children of the
deceased shall be paid in preference to all other debts or charges against the estate, except Class 1
claims [expenses of the funeral and last sickness of the deceased].
Amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September
1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 299. TOLLING OF GENERAL STATUTES OF LIMITATION.
The general statutes of limitation are tolled on the date:
(1) a claim for money is filed or deposited with the clerk [(a) By filing a claim which is legally
allowed and approved]; or
(2) suit is brought against the personal representative of an estate with respect to a claim of the
estate that is not required to be presented to the personal representative [(b) By bringing a suit
upon a rejected and disapproved claim within ninety days after such rejection or disapproval].
Amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective September
1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 306. METHOD OF HANDLING SECURED CLAIMS.
(a) - (d) [No change]
(e) Payment of Maturities on Preferred Debt and Lien Claims. If property securing a claim allowed, approved, and fixed under Paragraph (2) of Subsection (a) hereof is not sold or distributed within six months from the date letters are granted, the representative of the estate shall promptly pay all maturities which have accrued on the debt according to the terms thereof, and shall perform all the terms of any contract securing same. If the representative defaults in such payment or performance, on application of the claimholder, the court shall:
(1) require the sale of said property subject to the unmatured part of such debt and apply the proceeds of the sale to the liquidation of the maturities;
(2) require the sale of the property free of the lien and apply the proceeds to the payment of the whole debt; or
(3) authorize foreclosure by the claimholder as provided by Subsections [under Subsection] (f)
through (k) of this section.
(f) Foreclosure of Preferred Liens. An application by a claimholder under Subsection (e) of this
section [If the court authorizes a claimholder] to foreclose the claimholder's lien or security
interest on property securing a claim that has been allowed, approved, and fixed under Paragraph
(2) of Subsection (a) of this section shall be[, the claimholder shall file with the court an
application] supported by affidavit of the claimholder that:
(1) describes the property or part of the property to be sold by foreclosure;
(2) describes the amounts of the claimholder's outstanding debt;
(3) describes the maturities that have accrued on the debt according to the terms of the debt;
(4) describes any other debts secured by a mortgage, lien, or security interest against the property that are known by the claimholder;
(5) contains a statement that the claimholder has no knowledge of the existence of any debts secured by the property other than those described by the application; and
(6) requests permission for the claimholder to foreclose the claimholder's mortgage, lien, or security interest.
(g) - (h) [No change]
(i) Hearing.
(1) At the hearing, if the court finds that there is a default in payment or performance under the contract that secures the payment of the claim, the court shall:
(A) require the sale of the property subject to the unmatured part of the debt and apply the proceeds of the sale to the liquidation of the maturities;
(B) require the sale of the property free of the lien and apply the proceeds to the payment of the whole debt; or
(C) authorize foreclosure by the claimholder as provided by Subsection (f) of this section.
(2) When the court grants a claimholder the right of foreclosure, the court shall authorize [enter
an order granting] the claimholder [permission] to foreclose the claimholder's mortgage, lien, or
security interest in accordance with the provisions of the document creating the mortgage, lien, or
security interest or in any other manner allowed by law. In the discretion of the court and based
on the evidence presented at the hearing, the court may fix a minimum price for the property to be
sold by foreclosure that does not exceed the fair market value of the property. If the court fixes a
minimum price, the property may not be sold at the foreclosure sale for a lower price.
(j) Appeal. Any person interested in the estate may appeal an order issued under Subsection
(i)(1)(C) [(i)] of this section.
(k) [No change]
Subsections (e), (f), (i), and (j) amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June
20, 1997, effective September 1, 1997. See note following Section 5A regarding effective date of SB 506.
Sec. 320. ORDER OF PAYMENT OF CLAIMS AND ALLOWANCES.
(a) Priority of Payments. Personal representatives, when they have funds in their hands belonging to the estate, shall pay in the following order:
(1) Funeral expenses and expenses of last sickness, in an amount not to exceed Fifteen [Five]
Thousand Dollars.
(2) Allowances made to the surviving spouse and children, or to either.
(3) Expenses of administration and the expenses incurred in the preservation, safekeeping, and management of the estate.
(4) Other claims against the estate in the order of their classification.
(b) - (d) [No change]
Heading amended by HB 2007 (Acts, 75th Legislature, Regular Session, Chapter 540), enacted May 31, 1997, effective September 1, 1997. See Section 89A regarding the effective date of HB 2007. Subsection (a) amended by HB 881 (Acts, 75th Legislature, Regular Session, Chapter 1361), enacted June 20, 1997, effective September 1, 1997. Section of HB 881 provides:
SECTION 3. This Act takes effect September 1, 1997, and applies only to the estate of a person who dies on or after that
date. The estate of a person who dies before the effective date of this Act is governed by the law in effect at the time of the
person's death and that law is continued in effect for that purpose.
Sec. 322. CLASSIFICATION OF CLAIMS AGAINST ESTATES OF DECEDENT.
Claims against an estate of a decedent shall be classified and have priority of payment, as follows:
Class 1. Funeral expenses and expenses of last sickness for a reasonable amount to be approved
by the court, not to exceed a total of Fifteen Thousand Dollars [Five Thousand Dollars], with
any excess to be classified and paid as other unsecured claims.
Class 2. Expenses of administration and expenses incurred in the preservation, safekeeping, and management of the estate.
Class 3. Secured claims for money under Section 306(a)(1), including tax liens, so far as the same can be paid out of the proceeds of the property subject to such mortgage or other lien, and when more than one mortgage, lien, or security interest shall exist upon the same property, they shall be paid in order of their priority.
Class 4. Claims for taxes, penalties, and interest due under Title 2, Tax Code; Chapter 8, Title
132, Revised Statutes; Section 81.111, Natural Resources Code; the Municipal Sales and Use
Tax Act (Chapter 321, Tax Code);Section 451.404, Transportation Code [Section 11B, Chapter
141, Acts of the 63rd Legislature, Regular Session, 1973 (Article 1118x, Vernon's Texas Civil
Statutes)]; or Subchapter I, Chapter 452, Transportation Code [Section 16, Chapter 683, Acts of
the 66th Legislature, Regular Session, 1979 (Article 1118y, Vernon's Texas Civil Statutes)].
Class 5. Claims for the cost of confinement established by the institutional division of the Texas Department of Criminal Justice under Section 501.017, Government Code.
Class 6. Claims for repayment of medical assistance payments made by the state under Chapter 32, Human Resources Code, to or for the benefit of the decedent.
Class 7. All other claims.
Amended by HB 881 (Acts, 75th Legislature, Regular Session, Chapter 1361), enacted June 20, 1997, effective September
1, 1997. See note following Section 320 regarding effective date.
Sec. 399. ANNUAL ACCOUNTS REQUIRED.
(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.
(b) - (d) [No change]
Subsection (a) amended by HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403), enacted June 20, 1997, effective September 1, 1997. Sections 6, 7 and 8 of HB 2189 provide:
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.
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.]
Amended by HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403), enacted June 20, 1997, effective
September 1, 1997. See note following Section 399 regarding effective date of HB 2189.
Sec. 427. WHEN ESTATES TO BE PAID INTO STATE TREASURY.
If any person entitled to a portion of an estate, except a resident minor without a guardian, shall
not demand his portion from the executor or administrator within six months after an order of
court approving the report of commissioners of partition, or within six months after the settlement
of the final account of an executor or administrator, as the case may be, the court by written order
shall require the executor or administrator to pay so much of said portion as is in money to the
comptroller [State Treasurer]; and such portion as is in other property he shall order the executor
or administrator to sell on such terms as the court thinks best, and, when the proceeds of such sale
are collected, the court shall order the same to be paid to the comptroller [State Treasurer], in all
such cases allowing the executor or administrator reasonable compensation for his services. A suit
to recover proceeds of the sale is governed by Section 433 of this Code.
Amended by HB 2841, enacted June 20, 1997, effective September 1, 1997.
Sec. 428. INDISPENSABILITY OF COMPTROLLER[STATE TREASURER] AS PARTY.
The comptroller [State Treasurer] is an indispensable party to any judicial or administrative
proceeding concerning the disposition and handling of any portion of an estate that is or may be
payable to the comptroller [State Treasurer] under Section 427 of this Code. Whenever an order
shall be made by the court for an executor or administrator to pay any funds to the
comptroller[State Treasurer] under Section 427 of this Code, the clerk of the court in which such
order is made shall serve on the comptroller [State Treasurer] by personal service of citation a
certified copy of such order within five days after the same has been made.
Amended by HB 2841, enacted June 20, 1997, effective September 1, 1997.
Sec. 429. PENALTY FOR NEGLECT TO NOTIFY COMPTROLLER [STATE
TREASURER].
Any clerk who shall neglect to have served on the comptroller [State Treasurer] by personal
citation a certified copy of any such order within the time prescribed by Section 428 of this Code
shall be liable in a penalty of One Hundred Dollars, to be recovered in an action in the name of the
state, after personal service of citation, on the information of any citizen, one-half of which
penalty shall be paid to the informer and the other one-half to the state.
Amended by HB 2841, enacted June 20, 1997, effective September 1, 1997.
Sec. 430. RECEIPT OF COMPTROLLER [STATE TREASURER].
Whenever an executor or administrator pays the comptroller [State Treasurer] any funds of the
estate he represents, under the preceding provisions of this Code, he shall take from the
comptroller [State Treasurer] a receipt for such payment, with official seal attached, and shall file
the same with the clerk of the court ordering such payment; and such receipt shall be recorded in
the minutes of the court.
Amended by HB 2841, enacted June 20, 1997, effective September 1, 1997.
Sec. 431. PENALTY FOR FAILURE TO MAKE PAYMENTS TO
COMPTROLLER[STATE TREASURER].
When an executor or administrator fails to pay to the comptroller [State Treasurer] any funds of
an estate which he has been ordered by the court so to pay, within 30 days after such order has
been made, such executor or administrator shall, after personal service of citation charging such
failure and after proof thereof, be liable to pay out of his own estate to the comptroller [State
Treasurer] damages thereon at the rate of five per cent per month for each month, or fraction
thereof, that he fails to make such payment after 30 days from such order, which damages may be
recovered in any court of competent jurisdiction.
Amended by HB 2841, enacted June 20, 1997, effective September 1, 1997.
Sec. 432. COMPTROLLER [STATE TREASURER] MAY ENFORCE PAYMENT AND
COLLECT DAMAGES.
The comptroller [State Treasurer] shall have the right in the name of the state to apply to the
court in which the order for payment was made to enforce the payment of funds which the
executor or administrator has failed to pay to him pursuant to order of court, together with the
payment of any damages that shall have accrued under the provisions of the preceding Section of
this Code, and the court shall enforce such payment in like manner as other orders of payment are
required to be enforced. The comptroller [State Treasurer] shall also have the right to institute
suit in the name of the state against such executor or administrator, and the sureties on his bond,
for the recovery of the funds so ordered to be paid and such damages as have accrued. The
county attorney or criminal district attorney of the county, the district attorney of the district, or
the attorney general, at the election of the comptroller [State Treasurer] and with the approval of
the attorney general, shall represent the comptroller [State Treasurer] in all such proceedings, and
shall also represent the interests of the state in all other matters arising under any provisions of
this Code.
Amended by HB 2841, enacted June 20, 1997, effective September 1, 1997.
Sec. 433. SUIT FOR THE RECOVERY OF FUNDS PAID TO THE
COMPTROLLER[STATE TREASURER].
(a) Mode of Recovery. When funds of an estate have been paid to the comptroller [State
Treasurer], any heir, devisee, or legatee of the estate, or their assigns, or any of them, may
recover the portion of such funds to which he, she, or they are entitled. The person claiming such
funds shall institute suit on or before the fourth anniversary of the date of the order requiring
payment to the comptroller [State Treasurer], by petition filed in the district court of Travis
County, against the comptroller [State Treasurer], setting forth the plaintiff's right to such funds,
and the amount claimed by him.
(b) Citation. Upon the filing of such petition, the clerk shall issue a citation for the
comptroller[State Treasurer], to be served by personal service, to appear and represent the
interest of the state in such suit. As the comptroller [State Treasurer] elects and with the
approval of the attorney general, the attorney general, the county attorney or criminal district
attorney for the county, or the district attorney for the district shall represent the comptroller
[State Treasurer].
(c) Procedure. The proceedings in such suit shall be governed by the rules for other civil suits;
and, should the plaintiff establish his right to the funds claimed, he shall have a judgment therefor,
which shall specify the amount to which he is entitled; and a certified copy of such judgment shall
be sufficient authority for the comptroller [State Treasurer] to pay the same.
(d) Costs. The costs of any such suit shall in all cases be adjudged against the plaintiff, and he may be required to secure the costs.
Amended by HB 2841, enacted June 20, 1997, effective September 1, 1997.
Sec. 450. PROVISIONS FOR PAYMENT OR TRANSFER AT DEATH.
(a) Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, promissory note, deposit agreement, employees' trust, retirement account, deferred compensation arrangement, custodial agreement, pension plan, trust agreement, conveyance of real or personal property, securities, accounts with financial institutions as defined in Part 1 of this chapter, or any other written instrument effective as a contract, gift, conveyance, or trust is deemed to be nontestamentary, and this code does not invalidate the instrument or any provision:
(1) that money or other benefits theretofore due to, controlled, or owned by a decedent shall be paid after his death to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently;
(2) that any money due or to become due under the instrument shall cease to be payable in event of the death of the promisee or the promissor before payment or demand; or
(3) that any property which is the subject of the instrument shall pass to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently.
(b) - (c) [No change]
Subsection (a) amended by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997,
effective September 1, 1997. See note following Section 5A regarding effective date of SB 506.
[Note: Sections 466 through 480 were added by SB 504 (Acts, 75th Legislature, Regular
Session, Chapter 10), enacted April 17, 1997, to be effective September 1, 1997. SB 506
(Acts, 75th Legislature, Regular Session, Chapter 1302) repealed these same sections prior
to their effective date.]
[PART 4. UNIFORM TRANSFER ON DEATHSECURITY REGISTRATION ACT ]
[Sec. 466. DEFINITIONS.
In this part:
(1) "Beneficiary form" means a registration of a security that indicates the present owner of the
security and the intention of the owner regarding the person who will become the owner of the
security on the death of the owner.
(2) "Person" includes a corporation, organization, government or governmental subdivision or
agency, business trust, estate, trust, partnership, association, and any other legal entity.
(3) "Register," including its derivatives, means to issue a certificate showing the ownership of a
certificated security or, in the case of an uncertificated security, to initiate or transfer an
account showing ownership of securities.
(4) "Registering entity" means a person who originates or transfers a security title by
registration and includes a broker maintaining security accounts for customers and a transfer
agent or other person acting for or as an issuer of securities.
(5) "Security" means a share, participation, or other interest in property, in a business, or in an
obligation of an enterprise or other issuer and includes a certificated security, an uncertificated
security, and a security account.
(6) "Security account" means:
(A) a reinvestment account associated with a security, a securities account with a broker, a cash
balance in a brokerage account, cash, interest, earnings, or dividends earned or declared on a
security in an account, a reinvestment account, or a brokerage account, whether or not credited
to the account before the
owner's death; or
(B) a cash balance or other property held for or due to the owner of a security as a replacement
for or product of an account security, whether or not credited to the account before the owner's
death.
(7) "State," when referring to a part of the United States, includes any state, district,
commonwealth, territory, and insular possession of the United States and any area subject to the
legislative authority of the United States of America.]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 467. REGISTRATION IN BENEFICIARY FORM; SOLE OR JOINT TENANCY
OWNERSHIP.
Only an individual whose registration of a security shows sole ownership by one individual or
multiple ownership by two or more with right of survivorship, rather than as tenants in common,
may obtain registration in beneficiary form. Multiple owners of a security registered in
beneficiary form hold as joint tenants with right of survivorship, as tenants by the entireties, or
as owners of community property held in survivorship form, and not as tenants in common.]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 468. REGISTRATION IN BENEFICIARY FORM; APPLICABLE LAW.
A security may be registered in beneficiary form if the form is authorized by this part or a
similar statute of the state of organization of the issuer or registering entity, the location of the
registering entity's principal office, the office of its transfer agent, or its office making the
registration, or by this uniform act or a similar statute of the law of the state listed as the
owner's address at the time of registration. A registration governed by the law of a jurisdiction
in which this uniform act or similar legislation is not in force or was not in force when a
registration in beneficiary form was made is nevertheless presumed to be valid and authorized as
a matter of contract law. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 469. ORIGINATION OF REGISTRATION IN BENEFICIARY FORM.
A security, whether evidenced by certificate or account, is registered in beneficiary form if the
registration includes a designation of a beneficiary to take the ownership at the death of the
owner or the deaths of all multiple owners.]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 470. FORM OF REGISTRATION IN BENEFICIARY FORM.
Registration in beneficiary form may be shown by the words "transfer on death" or the
abbreviation "TOD" or by the words "pay on death" or the abbreviation "POD," after the name
of the registered owner and before the name of a beneficiary. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 471. EFFECT OF REGISTRATION IN BENEFICIARY FORM.
The designation of a TOD beneficiary on a registration in beneficiary form does not affect
ownership until the owner's death. A registration of a security in beneficiary form may be
canceled or changed at any time by the sole owner or all then surviving owners, without the
consent of the beneficiary. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 472. OWNERSHIP ON DEATH OF OWNER.
On death of a sole owner or the last to die of multiple owners, ownership of a security registered
in beneficiary form passes to the beneficiary or beneficiaries who survive all owners. On proof
of death of all owners and compliance with any applicable requirements of the registering entity,
a security registered in beneficiary form may be reregistered in the name of the beneficiary or
beneficiaries who survive the death of all owners. Until division of the security after the death of
all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants
in common. If no beneficiary survives the death of all owners, the security belongs to the estate
of the deceased sole owner or the estate of the last to die of multiple owners. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 473. PROTECTION OF REGISTERING ENTITY.
(a) A registering entity is not required to offer or to accept a request for security registration in
beneficiary form. If a registration in beneficiary form is offered by a registering entity, the
owner requesting registration in beneficiary form assents to the protections given to the
registering entity by this part.
(b) By accepting a request for registration of a security in beneficiary form, the registering
entity agrees that the registration will be implemented on the death of the deceased owner as
provided by this part.
(c) A registering entity is discharged from all claims to a security by the estate, creditors, heirs,
or devisees of the deceased owner if it registers a transfer of a security in accordance with
Section 472 of this code and does so in good faith reliance on the registration, on this part, and
on information provided to it by affidavit of the personal representative of the deceased owner,
or by the surviving beneficiary or by the surviving beneficiary's representatives, or other
information available to the registering entity. The protections of this part do not extend to a
reregistration or payment made after a registering entity has received written notice from a
claimant to an interest in the security objecting to implementation of a registration in
beneficiary form. No other notice or other information available to the registering entity affects
its right to protection under this part.
(d) The protection provided by this part to the registering entity of a security does not affect the
rights of beneficiaries in disputes between themselves and other claimants to ownership of the
security transferred or its value or proceeds. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 474. NONTESTAMENTARY TRANSFER ON DEATH.
(a) A transfer on death resulting from a registration in beneficiary form is effective by reason of
the contract regarding the registration between the owner and the registering entity and this part
and is not testamentary.
(b) This part does not limit the rights of creditors of security owners against beneficiaries and
other transferees under other laws of this state.]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 475. RIGHTS OF CREDITOR ON REGISTRATION.
(a) A security registered in beneficiary form is not effective against an estate of a deceased
party to transfer to a survivor sums that are otherwise needed to pay debts, taxes, and expenses
of administration, including statutory allowances to the surviving spouse and minor children, if
other assets of the estate are insufficient.
(b) A party, POD or TOD payee, or beneficiary who receives a payment from or transfer of a
security registered in beneficiary form after the death of a deceased party is liable to account to
the deceased party's personal representative for amounts the decedent owned beneficially
immediately before the decedent's death to the extent necessary to discharge the claims and
charges described by Subsection (a) of this section remaining unpaid after application of the
decedent's estate, but is not liable in an amount greater than the amount that the party, POD or
TOD payee, or beneficiary received from the security.
(c) A proceeding to assert the liability provided by Subsection (b) of this section may not be
commenced unless the personal representative has received a written demand by a surviving
spouse, a creditor, or one acting for a minor child of the decedent, and a proceeding may not be
commenced later than two years after the date of the death of the decedent. Sums recovered by
the personal representative under this section shall be administered as part of the decedent's
estate.
(d) This section does not affect the right of a financial institution, a securities issuer, or a
securities broker to make a payment from or transfer of a security registered in beneficiary form
according to the terms of the security or impose liability on the institution, issuer, or broker to
the estate of a deceased party unless before the payment or transfer the institution, issuer, or
broker received written notice from the personal representative stating the sums needed to pay
debts, taxes, and expenses of administration.]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 476. TERMS, CONDITIONS, AND FORMS FOR REGISTRATION.
(a) A registering entity offering to accept registrations in beneficiary form may establish the
terms and conditions under which it will receive requests for registration in beneficiary form and
for implementation of registrations in beneficiary form, including requests for cancellation of
previously registered TOD beneficiary designations and requests for reregistration to effect a
change of beneficiary. The terms and conditions may provide for proving death, avoiding or
resolving a problem concerning fractional shares, designating primary and contingent
beneficiaries, and substituting a named beneficiary's descendants to take in the place of the
named beneficiary in the event of the beneficiary's death. Substitution may be indicated by
appending to the name of the primary beneficiary the letters "LDPS," standing for "lineal
descendants per stirpes." This designation substitutes a deceased beneficiary's descendants who
survive the owner for a beneficiary who fails to survive the owner, the descendants to be
identified and to share in accordance with the law of the beneficiary's domicile at the owner's
death governing inheritance by descendants of an intestate. Other forms of identifying
beneficiaries who are to take on one or more contingencies and rules for providing proofs and
assurances needed to satisfy reasonable concerns by registering entities regarding conditions
and identities relevant to accurate implementation of registrations in beneficiary form may be
contained in a registering entity's terms and conditions.
(b) The following are illustrations of registrations in beneficiary form that a registering entity
may authorize:
(1) Sole owner--sole beneficiary: John S Brown TOD (or POD) John S Brown Jr.
(2) Multiple owners--sole beneficiary: John S Brown Mary B Brown JT TEN TOD John S
Brown Jr.
(3) Multiple owners--primary and secondary (substituted) beneficiaries: John S Brown Mary B
Brown, JT TEN TOD John S Brown Jr SUB BENE Peter Q Brown or John S Brown Mary B
Brown JT TEN TOD John S Brown Jr LDPS. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 477. NOTICE OF EFFECT OF REGISTRATION.
A registering entity shall provide to an owner requesting registration of a security in beneficiary
form a written statement describing the legal effects of the registration not later than the date on
which the owner registers the security. The statement shall be printed in all capital 12-point
boldfaced type and shall be signed by the registering owner at the time of registration. The
following statement is sufficient if signed by the registering owner:
"IMPORTANT NOTICE REGARDING YOUR RIGHTS
"ON PROOF OF DEATH, YOUR SECURITY IN BENEFICIARY FORM WILL BE
TRANSFERRED TO YOUR NAMED BENEFICIARY OR BENEFICIARIES WITHOUT BEING
PART OF YOUR ESTATE UNDER YOUR WILL OR BY INTESTACY. YOU SHOULD MAKE
SURE BEFORE YOU REGISTER YOUR SECURITY IN BENEFICIARY FORM THAT THE
REGISTRATION DOES NOT CONFLICT WITH ANY OTHER PROVISION IN A DOCUMENT
THAT YOU HAVE AUTHORIZED AND SIGNED, INCLUDING A WILL OR TRUST
AGREEMENT. IF YOU HAVE ANY DOUBT ABOUT WHETHER A CONFLICT EXISTS, YOU
SHOULD SEEK THE ADVICE OF A PROFESSIONAL IN THE FIELD OF ESTATE
PLANNING. YOU SHOULD ALSO NOTE THAT REGISTERING YOUR SECURITY IN
BENEFICIARY FORM MAY NOT AFFECT A CREDITOR'S CLAIM AGAINST YOUR ESTATE
OR AFFECT THE ESTATE OR INHERITANCE TAX LIABILITY OF YOUR ESTATE OR OF
YOUR BENEFICIARY OR BENEFICIARIES.
"I HAVE READ THE ABOVE NOTICE AND UNDERSTAND ITS CONTENTS.
_____________(signature of registering owner)" ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 478. EFFECT OF CERTAIN SECURITY ACCOUNT ON COMMUNITY PROPERTY
INTEREST.
A security account created with community property funds is subject to Section 15, Article XVI,
Texas Constitution, and does not alter community property rights in any form or manner,
regardless of whether the security account has been registered in beneficiary form. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 479. SHORT TITLE: RULES OF CONSTRUCTION.
(a) This part may be cited as the Uniform Transfer on Death Security Registration Act.
(b) This part shall be liberally construed and applied to promote its underlying purposes and
policy and to make uniform the laws with respect to the subject of this part among states
enacting it.
(c) Unless displaced by the particular provisions of this part, the principles of law and equity
supplement its provisions. ]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
[Sec. 480. APPLICATION OF ACT.
This part applies to registrations of securities in beneficiary form made before, on, or after
September 1, 1997, by decedents dying on or after September 1, 1997.]
Added by SB 504 (Acts, 75th Legislature, Regular Session, Chapter 10), enacted April 17, 1997, effective September 1,
1997. Repealed by SB 506 (Acts, 75th Legislature, Regular Session, Chapter 1302), enacted June 20, 1997, effective
September 1, 1997.
Sec. 485A. EFFECT OF PRINCIPAL'S DIVORCE OR MARRIAGE ANNULMENT IF FORMER SPOUSE IS ATTORNEY IN FACT OR AGENT.
If, after execution of a durable power of attorney, the principal is divorced from a person who has been appointed the principal's attorney in fact or agent or the principal's marriage to a person who has been appointed the principal's attorney in fact or agent is annulled, the powers of the attorney in fact or agent granted to the principal's former spouse shall terminate on the date on which the divorce or annulment of marriage is granted by a court, unless otherwise expressly provided by the durable power of attorney.
Added by SB 620 (Acts, 75th Legislature, Regular Session, Chapter 455), enacted May 30, 1997, effective September 1, 1997. Section 8 of SB 620 provides:
SECTION 8. This Act takes effect September 1, 1997, and applies only to a durable power of attorney or statutory durable
power of attorney that is executed on or after that date. A durable power of attorney or statutory durable power of attorney
that is executed before the effective date of this Act is governed by the law in effect on the date the power of attorney was
executed, and the former law is continued in effect for that purpose.
Sec. 486. KNOWLEDGE OF DEATH, GUARDIAN OF ESTATE, [OR] REVOCATION,
DIVORCE, OR MARRIAGE ANNULMENT; GOOD-FAITH ACTS.
(a) The revocation by, the death of, or the qualification of a guardian of the estate of a principal who has executed a durable power of attorney does not revoke or terminate the agency as to the attorney in fact, agent, or other person who, without actual knowledge of the termination of the power by revocation, by the principal's death, or by the qualification of a guardian of the estate of the principal, acts in good faith under or in reliance on the power.
(b) The divorce of a principal from a person who has been appointed the principal's attorney in fact or agent before the date on which the divorce is granted or the annulment of the marriage of a principal and a person who has been appointed the principal's attorney in fact or agent before the date the annulment is granted does not revoke or terminate the agency as to a person other than the principal's former spouse if the person acts in good faith under or in reliance on the power.
(c) Any action [so] taken under this section, unless otherwise invalid or unenforceable, binds
successors in interest of the principal.
Added by SB 620 (Acts, 75th Legislature, Regular Session, Chapter 455), enacted May 30, 1997, effective September 1,
1997. See note after Section 485A for law affecting powers of attorney executed prior to September 1, 1997.
Sec. 487. AFFIDAVIT OF LACK OF KNOWLEDGE OR TERMINATION OF POWER; RECORDING; GOOD-FAITH RELIANCE.
(a) As to acts undertaken in good-faith reliance on the durable power of attorney, an affidavit executed by the attorney in fact or agent under a durable power of attorney stating that the attorney in fact or agent did not have at the time of exercise of the power actual knowledge of the termination of the power by revocation, by the principal's death, by the principal's divorce or the annulment of the marriage of the principal if the attorney in fact or agent was the principal's spouse, or by the qualification of a guardian of the estate of the principal is conclusive proof as between the attorney in fact or agent and a person other than the principal or the principal's personal representative dealing with the attorney in fact or agent of the nonrevocation or nontermination of the power at that time.
(b) As to acts undertaken in good-faith reliance on the durable power of attorney, an affidavit executed by the attorney in fact or agent under a durable power of attorney stating that the principal is disabled or incapacitated, as defined by the power, is conclusive proof as between the attorney in fact or agent and a person other than the principal or the principal's personal representative dealing with the attorney in fact or agent of the disability or incapacity of the principal at that time.
(c) If the exercise of the power of attorney requires execution and delivery of any instrument that is to be recorded, an affidavit executed under Subsection (a) or (b) of this section, when authenticated for record, may also be recorded.
(d) This section does not affect any provision in a durable power of attorney for its termination by expiration of time or occurrence of an event other than express revocation.
(e) When a durable power of attorney is used, a third party who relies in good faith on the acts of an attorney in fact or agent within the scope of the power of attorney is not liable to the principal.
Added by SB 620 (Acts, 75th Legislature, Regular Session, Chapter 455), enacted May 30, 1997, effective September 1,
1997. See note after Section 485A for law affecting powers of attorney executed prior to September 1, 1997.
Sec. 490. STATUTORY DURABLE POWER OF ATTORNEY.
(a) The following form is known as a "statutory durable power of attorney." A person may use a statutory durable power of attorney to grant an attorney in fact or agent powers with respect to a person's property and financial matters. A power of attorney in substantially the following form has the meaning and effect prescribed by this chapter. The validity of a power of attorney as meeting the requirements of a statutory durable power of attorney is not affected by the fact that one or more of the categories of optional powers listed in the form are struck or the form includes specific limitations on or additions to the attorney in fact's or agent's powers.
[When a power in substantially the form set forth in this chapter is used, third parties who rely in
good faith on the acts of the agent within the scope of the power may do so without fear of
liability to the principal.]
The following form is not exclusive, and other forms of power of attorney may be used.
STATUTORY DURABLE POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT
THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES
NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU
LATER WISH TO DO SO.
I, __________ (insert your name and address), [my social security number being __________
(insert your proper SS#),] appoint __________ (insert the name and address of the person
appointed) as my agent (attorney-in-fact) to act for me in any lawful way with respect to all of the
following powers except for a power that I have crossed out below.
TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER WITHHELD.
Real property transactions;
Tangible personal property transactions;
Stock and bond transactions;
Commodity and option transactions;
Banking and other financial institution transactions;
Business operating transactions;
Insurance and annuity transactions;
Estate, trust, and other beneficiary transactions;
Claims and litigation;
Personal and family maintenance;
Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;
Retirement plan transactions;
Tax matters.
IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL BE
CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
WERE PERSONALLY PRESENT
[the following initialed subjects:
[TO GRANT ALL OF THE FOLLOWING POWERS, INITIAL THE LINE IN FRONT OF (N)
AND IGNORE THE LINES IN FRONT OF THE OTHER POWERS.
[TO GRANT ONE OR MORE, BUT FEWER THAN ALL, OF THE FOLLOWING POWERS,
INITIAL THE LINE IN FRONT OF EACH POWER YOU ARE GRANTING.
[TO WITHHOLD A POWER, DO NOT INITIAL THE LINE IN FRONT OF IT. YOU MAY,
BUT NEED NOT, CROSS OUT EACH POWER WITHHELD.
[INITIAL
[_______ (A) real property transactions;
[_______ (B) tangible personal property transactions;
[_______ (C) stock and bond transactions;
[_______ (D) commodity and option transactions;
[_______ (E) banking and other financial institution transactions;
[_______ (F) business operating transactions;
[_______ (G) insurance and annuity transactions;
[_______ (H) estate, trust, and other beneficiary transactions;
[_______ (I) claims and litigation;
[_______ (J) personal and family maintenance;
[_______ (K) benefits from social security, Medicare, Medicaid, or other governmental programs
or civil or military service;
[_______ (L) retirement plan transactions;
[_______ (M) tax matters;
[_______ (N) ALL OF THE POWERS LISTED IN (A) THROUGH (M). YOU NEED NOT
INITIAL ANY OTHER LINES IF YOU INITIAL LINE (N)].
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of the following sentence to have it
apply):
I grant my agent (attorney in fact) the power to apply my property to make gifts, except that the
amount of a gift to an individual may not exceed the amount of annual exclusions allowed from
the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR
EXTENDING THE POWERS GRANTED TO YOUR AGENT.
_____________________________________________
_____________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
______________________________________________
_______________________________________________
______________________________________________
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent disability or incapacity.
(B) This power of attorney becomes effective upon my disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY IS TO
BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT YOU CHOSE
ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my disability or incapacity is not contained in this
power of attorney, I shall be considered disabled or incapacitated for purposes of this power of
attorney if a physician certifies in writing at a date later than the date this power of attorney is
executed that, based on the physician's medical examination of me, I am mentally incapable of
managing my financial affairs. I authorize the physician who examines me for this purpose to
disclose my physical or mental condition to another person for purposes of this power of
attorney. A third party who accepts this power of attorney is fully protected from any action
taken under this power of attorney that is based on the determination made by a physician of my
disability or incapacity.
I agree that any third party who receives a copy of this document may act under it. Revocation of
the durable power of attorney is not effective as to a third party until the third party receives
actual notice of the revocation. I agree to indemnify the third party for any claims that arise
against the third party because of reliance on this power of attorney.
If any agent named by me dies, becomes legally disabled, resigns, or refuses to act, I name the
following (each to act alone and successively, in the order named) as successor(s) to that agent:
__________.
Signed this ______ day of __________, 19___
__________________________________
(your signature)
State of _______________________
County of ______________________
This document was acknowledged before me on
__________________________(date) by _______________________________
(name of principal)
_________________________________
(signature of notarial officer)
(Seal, if any, of notary)
___________________________________
(printed name)
My commission expires: __________
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE
APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES
OF AN AGENT.
(b) [No change]
(c) [Repealed]
Subsection (a) [including statutory durable power of attorney form] amended by SB 620 (Acts, 75th Legislature, Regular
Session, Chapter 455), enacted May 30, 1997, effective September 1, 1997. Subsection (c) repealed by SB 620 (Acts, 75th
Legislature, Regular Session, Chapter 455), enacted May 30, 1997, effective September 1, 1997. See note after Section
485A for law affecting powers of attorney executed prior to September 1, 1997.
Sec. 492. CONSTRUCTION OF POWER RELATING TO REAL PROPERTY TRANSACTIONS.
In a statutory durable power of attorney, the language conferring authority with respect to real property transactions empowers the attorney in fact or agent without further reference to a specific description of the real property to:
(1) accept as a gift or as security for a loan or reject, demand, buy, lease, receive, or otherwise acquire an interest in real property or a right incident to real property;
(2) sell, exchange, convey with or without covenants, quitclaim, release, surrender, mortgage, encumber, partition, consent to partitioning, subdivide, apply for zoning, rezoning, or other governmental permits, plat or consent to platting, develop, grant options concerning, lease or sublet, or otherwise dispose of an estate or interest in real property or a right incident to real property;
(3) release, assign, satisfy, and enforce by litigation, action, or otherwise a mortgage, deed of trust, encumbrance, lien, or other claim to real property that exists or is claimed to exist;
(4) do any act of management or of conservation with respect to an interest in real property, or a right incident to real property, owned or claimed to be owned by the principal, including power to:
(A) insure against a casualty, liability, or loss;
(B) obtain or regain possession or protect the interest or right by litigation, action, or otherwise;
(C) pay, compromise, or contest taxes or assessments or apply for and receive refunds in
connection with them; [and]
(D) purchase supplies, hire assistance or labor, or make repairs or alterations in the real property; and
(E) manage and supervise an interest in real property, including the mineral estate, by, for example, entering into a lease for oil, gas, and mineral purposes, making contracts for development of the mineral estate, or making pooling and unitization agreements;
(5) use, develop, alter, replace, remove, erect, or install structures or other improvements on real property in which the principal has or claims to have an estate, interest, or right;
(6) participate in a reorganization with respect to real property or a legal entity that owns an interest in or right incident to real property, receive and hold shares of stock or obligations received in a plan or reorganization, and act with respect to the shares or obligations, including:
(A) selling or otherwise disposing of the shares or obligations;
(B) exercising or selling an option, conversion, or similar right with respect to the shares or obligations; and
(C) voting the shares or obligations in person or by proxy;
(7) change the form of title of an interest in or right incident to real property; and
(8) dedicate easements or other real property in which the principal has or claims to have an interest to public use, with or without consideration.
Amended by SB 620 (Acts, 75th Legislature, Regular Session, Chapter 455), enacted May 30, 1997, effective September
1, 1997. See note after Section 485A for law affecting powers of attorney executed prior to September 1, 1997.
Sec. 503. CONSTRUCTION OF POWER RELATING TO RETIREMENT PLAN TRANSACTIONS.
(a) In a statutory durable power of attorney, the language conferring authority with respect to retirement plan transactions empowers the attorney in fact or agent to do any lawful act the principal may do with respect to a transaction relating to a retirement plan, including to:
(1) apply for service or disability retirement benefits;
(2) select payment options under any retirement plan in which the principal participates, including plans for self-employed individuals;
(3) designate or change the designation of a beneficiary or benefits payable by a retirement plan, except that an attorney in fact or agent may be named a beneficiary only to the extent the attorney in fact or agent was a named beneficiary under the retirement plan before the durable power of attorney was executed;
(4) make voluntary contributions to retirement plans if authorized by the plan;
(5) exercise the investment powers available under any self-directed retirement plan;
(6) make "rollovers" of plan benefits into other retirement plans;
(7) borrow from, sell assets to, and purchase assets from retirement plans if authorized by the plan;
(8) waive the right of the principal to be a beneficiary of a joint or survivor annuity if the principal is a spouse who is not employed;
(9) receive, endorse, and cash payments from a retirement plan;
(10) waive the right of the principal to receive all or a portion of benefits payable by a retirement plan; and
(11) request and receive information relating to the principal from retirement plan records.
(b) In this section, "retirement plan" means:
(1) an employee pension benefit plan as defined by Section 1002, Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. Section 1002), without regard to the provisions of Section (2)(B) of that section;
(2) a plan that does not meet the definition of an employee benefit plan under ERISA because the plan does not cover common law employees;
(3) a plan that is similar to an employee benefit plan under ERISA, regardless of whether it is covered by Title I of ERISA, including a plan that provides death benefits to the beneficiary of employees; and
(4) an individual retirement account or annuity or a self-employed pension plan or similar plan or account.
Amended by SB 620 (Acts, 75th Legislature, Regular Session, Chapter 455), enacted May 30, 1997, effective September
1, 1997. See note after Section 485A for law affecting powers of attorney executed prior to September 1, 1997.
CHAPTER XII. INFORMAL PROBATE [Repealed]
Part 1 (Informal Probate) repealed by HB 2007 (Acts, 75th Legislature, Regular Session, Chapter 540), enacted May 31,
1997, effective September 1, 1997. See Section 89A regarding the effective date of HB 2007. Part 2 (Emergency
Intervention Proceedings) recodified to Probate Code Sections 108 - 115 by HB 2003 (Acts, 75th Legislature, Regular
Session, Chapter 1199), enacted May 21, 1997, effective September 1, 1997. See note regarding effective date following
Section 108.
Sec. 601. DEFINITIONS.
(1) - (16) [No change]
(17) "Missing person" has the meaning assigned by Section 79.001, Human Resources
Code[means:
[(A) a person reported by an executive department of the United States to be a prisoner of war or
missing in the course of public service to the United States; or
[(B) a person reported missing and there is good cause, as shown by a police or other law
enforcement agency report or a peace officer's testimony in court, to believe that the person is
missing].
(18) - (28) [No change]
(29) "Statutory probate court" means a statutory court designated as a statutory [whose
jurisdiction is limited by statute to the general jurisdiction of a] probate court under Chapter 25,
Government Code. A county court [and a court whose statutorily designated name contains the
word "probate." County courts] at law exercising probate jurisdiction is [are] not a statutory
probate court [courts] under this chapter unless the court is designated a statutory probate court
under Chapter 25, Government Code.[statutorily designated name of the county courts at law
includes the word "probate."]
(30) - (33) [No change]
Subsection (17) amended by HB 1317 (Acts, 75th Legislature, Regular Session, Chapter 1376), enacted June 20, 1997, effective September 1, 1997. Section 6 of HB 1317 provides:
SECTION 6. This Act takes effect September 1, 1997, and applies only to a proceeding for receivership of the estate of a missing person that is instituted on or after that date. A proceeding for receivership of the estate of a missing person that is instituted before the effective date of this Act is governed by the law in effect on the date on which the proceeding was instituted, and the former law is continued in effect for that purpose.
Subsection (29) amended by HB 1152 (Acts, 75th Legislature, Regular Session, Chapter 52), enacted May 7, 1997,
effective September 1, 1997.
Sec. 609. CONTESTED GUARDIANSHIP OF THE PERSON OF A MINOR.
(a) - (b) [No change]
(c) The court to which a transfer is made under this section shall apply the procedural and
substantive provisions of the Family Code, including Sections 155.005 and 155.205[Section
11.05(h), and its subsequent amendments], in regard to enforcing an order rendered by the court
from which the proceeding was transferred.
Subsection (c) amended by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997, effective September 1, 1997. Sections 10 and 11 of SB 997 provide:
SECTION 10. A court may modify a guardianship in effect on September 1, 1997, to conform with the requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or on application by the ward, the guardian, or any other interested person or entity.
SECTION 11. Except as provided by Section 10 of this Act, the change in law made by this Act applies only to a proceeding for the appointment of a guardian instituted on or after the effective date of this Act. A proceeding for the appointment of a guardian instituted before the effective date of this Act is governed by the law in effect on the date on which the proceeding was instituted, and the former law is continued in effect for that purpose.
Note that the same changes to subsection (c) are made by SB 898 (Acts, 75th Legislature, Regular Session, Chapter 165),
enacted May 21, 1997, effective September 1, 1997.
Sec. 633. NOTICE AND CITATION.
(a) - (c) [No change]
(d) The court clerk, at the applicant's request, or the applicant shall mail a copy of the notice by registered or certified mail, return receipt requested, to the following persons if their whereabouts are known or can be reasonably ascertained:
(1) all adult siblings and all adult children of a proposed ward;
(2) the administrator of a nursing home facility or similar facility in which the proposed ward resides;
(3) the operator of a residential facility in which the proposed ward resides; [and]
(4) a person whom the applicant knows to hold a power of attorney signed by the proposed ward;
(5) a person designated to serve as guardian of the proposed ward by a written declaration under Section 679 of this code, if the applicant knows of the existence of the declaration;
(6) a person designated to serve as guardian of the proposed ward in the probated will of the last surviving parent of the ward; and
(7) a person designated to serve as guardian of the proposed ward by a written declaration of the proposed ward's last surviving parent, if the declarant is deceased and the applicant knows of the existence of the declaration.
(e) [No change]
(f) The court may not act on an application for the creation of a guardianship until the Monday
following the expiration of the 10-day period beginning the date service of notice and citation has
been made as provided by Subsections (b), (c), and (d)(1) of this section. The validity of a
guardianship created under this chapter is not affected by the failure of the clerk or applicant to
comply with the requirements of Subsections (d)(2)-(7) [(d)(2)-(4)] of this section.
(g) [No change]
Subsections (d) and (f) amended by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997,
effective September 1, 1997. See note following Section 609 for effect of SB 997 on existing guardianships.
Sec 671. JUDGE'S DUTY.
(a) - (d) [No change]
(e) The court may request an applicant or court-appointed fiduciary to produce other information identifying an applicant, ward, or guardian, including social security numbers, in addition to identifying information the applicant or fiduciary is required to produce under this code. The court shall maintain the information required under this subsection, and the information may not be filed with the clerk.
Subsection (e) added by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997, effective
September 1, 1997. See note following Section 609 for effect of SB 997 on existing guardianships.
Sec. 677A. WRITTEN DECLARATIONS BY CERTAIN PARENTS TO APPOINT GUARDIANS FOR THEIR CHILDREN.
(a) A written declaration appointing an eligible person to be guardian of the person of the parent's
child under Section [676(d) or] 677(b) of this code must be attested to by at least two credible
witnesses 14 years of age or older who are not named as guardian or alternate guardian in the
declaration.
(b) - (e) [No change]
Subsection (a) amended by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997, effective
September 1, 1997. See note following Section 609 for effect of SB 997 on existing guardianships.
Sec. 682. APPLICATION; CONTENTS.
Any person may commence a proceeding for the appointment of a guardian by filing a written application in a court having jurisdiction and venue. The application must be sworn to by the applicant and state:
(1) the name, sex, date of birth, and address of the proposed ward;
(2) the name, relationship, and address of the person the applicant desires to have appointed as guardian;
(3) [the social security number of the proposed ward and of the person the applicant desires to
have appointed as guardian;
[(4)] whether guardianship of the person or estate, or both, is sought;
(4) [(5)] the nature and degree of the alleged incapacity, the specific areas of protection and
assistance requested, and the limitation of rights requested to be included in the court's order of
appointment;
(5) [(6)] the facts requiring that a guardian be appointed and the interest of the applicant in the
appointment;
(6) [(7)] the nature and description of any guardianship of any kind existing for the proposed
ward in this or any other state;
(7) [(8)] the name and address of any person or institution having the care and custody of the
proposed ward;
(8) [(9)] the approximate value and description of the proposed ward's property, including any
compensation, pension, insurance, or allowance to which the proposed ward may be entitled;
(9) [(10)] the requested term, if known, of the guardianship;
(10) [(11)] the name and address of any person whom the applicant knows to hold a power of
attorney signed by the proposed ward and a description of the type of power of attorney;
(11) [(12)] if the proposed ward is a minor, the names of the parents and next of kin of the
proposed ward and whether either or both of the parents are deceased;
(12) [(13)] if the proposed ward is a minor, whether the minor was the subject of a legal or
conservatorship proceeding within the preceding two-year period and, if so, the court involved,
the nature of the proceeding, and the final disposition, if any, of the proceeding;
(13) [(14)] if the proposed ward is 60 years of age or older, the names and addresses, to the best
of the applicant's knowledge, of the proposed ward's spouse, siblings, and children, or, if there is
no spouse, sibling, or child, the names and addresses of the proposed ward's next of kin;
(14) [(15)] [if the proposed ward is a missing person:
[(A) the last known residence of the missing person;
[(B) the name of the executive department of the United States reporting the proposed ward as a
missing person, the date of the report, and the last known whereabouts of the missing person; and
[(C) the names and addresses of the missing person's spouse, children, and parents, or, if there is
no spouse, child, or parent, the names and addresses of the missing person's next of kin;
[(16)] facts showing that the court has venue over the proceeding; and
(16) [(17)] if applicable, that the person whom the applicant desires to have appointed as a
guardian is a private professional guardian who has complied with the requirements of Section
697 of this code.
Amended by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997, effective September 1,
1997. See note following Section 609 for effect of SB 997 on existing guardianships. Amended by HB 1317 (Acts, 75th
Legislature, Regular Session, Chapter 1376), enacted June 20, 1997, effective September 1, 1997. See note following
Section 601 regarding effective date of HB 1317.
Sec. 684. FINDINGS REQUIRED.
(a) [No change]
(b) Before appointing a guardian, the court must find by a preponderance of the evidence that:
(1) the court has venue of the case;
(2) the person to be appointed guardian is eligible to act as guardian and is entitled to appointment, or, if no eligible person entitled to appointment applies, the person appointed is a proper person to act as guardian;
(3) if a guardian is appointed for a minor, the guardianship is not created for the primary purpose of enabling the minor to establish residency for enrollment in a school or school district for which the minor is not otherwise eligible for enrollment; and
(4) [if the guardian is appointed for a missing person, the person was reported missing by an
executive department of the United States at least six months earlier than the date of the filing of
the application and currently is missing; and
[(5)] the proposed ward is totally without capacity as provided by this code to care for himself or
herself and to manage the individual's property, or the proposed ward lacks the capacity to do
some, but not all, of the tasks necessary to care for himself or herself or to manage the individual's
property.
(c) - (e) [No change]
Subsection (b) amended by HB 1317 (Acts, 75th Legislature, Regular Session, Chapter 1376), enacted June 20, 1997,
effective September 1, 1997. See note following Section 601 regarding effective date of HB 1317.
[Sec. 691. AGENCY AS LAST RESORT.
Except as a last resort, the court may not appoint as guardian the Texas Department of Mental
Health and Mental Retardation, the Department of Protective and Regulatory Services, a
community mental health and mental retardation center, or any other agency, public or private,
that is directly providing services to the incapacitated person.]
Section 691 repealed by HB 3135, enacted June 17, 1997, effective September 1, 1997.
Sec. 700. OATH OF GUARDIAN.
(a) The guardian shall take an oath to discharge faithfully the duties of guardian for the person or estate, or both, of a ward.
(b) A representative of the Department of Protective and Regulatory Services shall take the oath required by Subsection (a) of this section if the department is appointed guardian.
Amended by SB 359 (Acts, 75th Legislature, Regular Session, Chapter 1022), enacted June 19, 1997, effective September
1, 1997.
Sec. 702. BOND REQUIRED OF GUARDIAN OF THE PERSON OR ESTATE.
(a) [No change]
(b) A bond is not required to be given by a guardian that is:
(1) a corporate fiduciary, as defined by Section 601(5) of this code; or
(2) a guardianship program operated by a county [with a population of more than 2.5 million,
according to the most recent federal decennial census].
(c) [No change]
Subsection (b) amended by SB 318 (Acts, 75th Legislature, Regular Session, Chapter 924), enacted June 18, 1997, effective September 1, 1997. Section 5 of SB 318 provides:
SECTION 5. This Act takes effect September 1, 1997, and applies only to a proceeding for the appointment of a guardian
that is instituted on or after that date. 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 on which the proceeding was instituted, and the former law is
continued in effect for that purpose.
Sec. 702A. TYPES OF BONDS ACCEPTABLE FOR GUARDIAN OF THE PERSON.
(a) This section applies only to a bond required to be posted by a guardian of the person of a ward when there is no guardian of the ward's estate.
(b) To ensure the performance of the guardian's duties, the court may accept only:
(1) a corporate surety bond;
(2) a personal surety bond;
(3) a deposit of money instead of a surety bond; or
(4) a personal bond.
(c) In determining the appropriate type and amount of bond to set for the guardian, the court shall consider:
(1) the familial relationship of the guardian to the ward;
(2) the guardian's ties to the community;
(3) the guardian's financial condition;
(4) the guardian's past history of compliance with the court; and
(5) the reason the guardian may have previously been denied a corporate surety bond.
Added by SB 318 (Acts, 75th Legislature, Regular Session, Chapter 924), enacted June 18, 1997, effective September 1,
1997. See note following Section 702 regarding effective date of SB 318.
Sec. 743. REPORTS OF GUARDIANS OF THE PERSON.
(a) [No change]
(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.
(c) - (i) [No change]
Subsection (b) amended by HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403), enacted June 20, 1997,
effective September 1, 1997. See note following Section 399 regarding effective date of HB 2189.
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.
Amended by HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403), enacted June 20, 1997, effective
September 1, 1997. See note following Section 399 regarding effective date of HB 2189.
Sec. 774. EXERCISE OF POWER WITH OR WITHOUT COURT ORDER.
(a) On application, and if authorized by an order, the guardian of the estate may renew or extend any obligation owed by or to the ward. On written application to the court and when a guardian of the estate deems it is in the bestinterest of the estate, the guardian may, if authorized by an order of the court:
(1) purchase or exchange property;
(2) take a claim or property for the use and benefit of the estate in payment of a debt due or owing to the estate;
(3) compound a bad or doubtful debt due or owing to the estate;
(4) make a compromise or a settlement in relation to property or a claim in dispute or litigation;
[and]
(5) compromise or pay in full any secured claim that has been allowed and approved as required by law against the estate by conveying to the holder of the secured claim the real estate or personalty securing the claim, in full payment, liquidation, and satisfaction of the claim, and in consideration of cancellation of a note, deed of trust, mortgage, chattel mortgage, or other evidence of a lien that secures the payment of the claim; and
(6) abandon worthless or burdensome property and the administration of that property. Abandoned real or personal property may be foreclosed on by a secured party, trustee, or mortgagee without further order of the court.
(b) [No change]
Subsection (a) amended by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997, effective
September 1, 1997. See note following Section 609 for effect of SB 997 on existing guardianships.
Sec. 776A. SUMS ALLOWABLE FOR EDUCATION AND MAINTENANCE OF WARD'S SPOUSE OR DEPENDENT.
(a) Subject to Section 777 of this code and on application to the court, the court may order the guardian of the estate of a ward to expend funds from the ward's estate for the education and maintenance of the ward's spouse or dependent.
(b) In determining whether to order the expenditure of funds from a ward's estate for the ward's spouse or dependent, as appropriate, in accordance with this section, the court shall consider:
(1) the circumstances of the ward, the ward's spouse, and the ward's dependents;
(2) the ability and duty of the ward's spouse to support himself or herself and the ward's dependent;
(3) the size of the ward's estate;
(4) a beneficial interest the ward or the ward's spouse or dependent has in a trust; and
(5) an existing estate plan, including a trust or will, that provides a benefit to the ward's spouse or dependent.
(c) A person who makes an application to the court under this section shall mail notice of the application by certified mail to all interested persons.
Added by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997, effective September 1,
1997. See note following Section 609 for effect of SB 997 on existing guardianships.
Sec. 783. NOTICE BY GUARDIAN OF APPOINTMENT.
(a) Within one month after receiving letters, personal representatives of estates shall send to the
comptroller of public accounts by certified or registered mail if the ward[decedent] remitted or
should have remitted taxes administered by the comptroller of public accounts and publish in
some newspaper, printed in the county where the letters were issued, if there be one, a notice
requiring all persons having a claim against the estate being administered to present the claim
within the time prescribed by law. The notice must include the time of issuance of letters held by
the representative, the address to which a claim may be presented, and an instruction of the
representative's choice that a claim be addressed in care of the representative, in care of the
representative's attorney, or in care of "Representative, Estate of __________" (naming the
estate).
(b) - (c) [No change]
Subsection (a) amended by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77), enacted May 12, 1997, effective
September 1, 1997. See note following Section 609 for effect of SB 997 on existing guardianships.
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.
Amended by HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403), enacted June 20, 1997, effective
September 1, 1997. See note following Section 399 regarding effective date of HB 2189.
Sec. 856. OTHER INVESTMENTS.
(a) If a guardian of an estate deems it is in the best interests of the ward the guardian is appointed to represent to invest on behalf of the ward in the Texas Tomorrow Fund established by Subchapter F, Chapter 54, Education Code, or to invest in or sell any property or security in which a trustee is authorized to invest by either Section 113.056 or Subchapter F, Chapter 113, of the Texas Trust Code (Subtitle B, Title 9, Property Code), and the investment or sale is not expressly permitted by other sections of this chapter, the guardian may file a written application in the court in which the guardianship is pending that asks for an order authorizing the guardian to make the desired investment or sale and states the reason why the guardian is of the opinion that the investment or sale would be beneficial to the ward. A citation or notice is not necessary under this subsection unless ordered by the court.
(b) - (c) [No change]
Subsection (a) amended by HB 1316 (Acts, 75th Legislature, Regular Session, Chapter 434), enacted May 29, 1997, effective September 1, 1997. Sections 2 and 3 of HB 1316 provide as follows:
SECTION 2. A court may modify any guardianship in effect on September 1, 1997, to conform to the requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or on application by the guardian or any other interested person or entity.
SECTION 3. This Act takes effect September 1, 1997. Except as provided by Section 2 of this Act, the change in law
made by this Act applies only to a person appointed by a court to serve as guardian on or after the effective date of this Act.
A person appointed by a court to serve as guardian before the effective date of this Act is governed by the law in effect on
the date of the person's appointment, and that law continues in effect for that purpose.
Sec. 865. POWER TO MAKE TAX-MOTIVATED GIFTS.
(a) On application of the guardian of the estate or any interested party and after the posting
ofnotice [to all interested persons and to other persons as directed by the court], the court, after
hearing, may enter an order that authorizes the guardian to apply the principal or income of the
ward's estate that is not required for the support of the ward or the ward's family during the
ward's lifetime toward the establishment of an estate plan for the purpose of minimizing income,
estate, inheritance, or other taxes payable out of the ward's estate on a showing that the ward will
probably remain incapacitated during the ward's lifetime. On the ward's behalf, the court may
authorize the guardian to make gifts, outright or in trust, of the ward's personal property or real
estate to or for the benefit of:
(1) an organization to which charitable contributions may be made under the Internal Revenue Code and in which it is shown the ward would reasonably have an interest;
(2) the ward's spouse, descendant, or other person related to the ward by blood or
marriage[heirs at law] who are identifiable at the time of the order;
(3) a devisee under the ward's last validly executed will, trust, or other beneficial instrument if
the instrument exists [there is a will]; and
(4) a person serving as guardian of the ward if the person is eligible under either Subdivision (2) or (3) of this subsection.
(b) - (d) [No change]
(e) A person who makes an application to the court under this section shall mail notice of the application by certified mail to:
(1) all devisees under a will, trust, or other beneficial instrument relating to the ward's estate;
(2) the ward's spouse;
(3) the ward's dependents; and
(4) any other person as directed by the court.
Subsection (a) amended and subsection (e) added by SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77),
enacted May 12, 1997, effective September 1, 1997. See note following Section 609 for effect of SB 997 on existing
guardianships.
Sec. 867. CREATION OF MANAGEMENT TRUST.
On application by the guardian of a ward or by a ward's attorney ad litem at any time after the date of the attorney's appointment under Section 646 of this code, the court in which the guardianship proceeding is pending may enter an order that creates for the ward's benefit a trust for the management of guardianship funds if the court finds that the creation of the trust is in the ward's best interests. The order shall direct the guardian or another person to deliver all or part of the assets of the guardianship to a trust company or a state or national bank that has trust powers in this state. The order shall include terms, conditions, and limitations placed on the trust. The court shall maintain the trust under the same cause number as the guardianship proceeding.
Amended by HB 1314 (Acts, 75th Legislature, Regular Session, Chapter 1375), enacted June 20, 1997, effective September 1, 1997. Sections 7 and 8 of HB 1314 provide:
SECTION 7. (a) A trust may be created under Section 867, Texas Probate Code, as amended by this Act, regardless of the date on which the guardianship was created.
(b) A trust otherwise valid under Section 867, Texas Probate Code, is not invalid solely because it was created for a guardianship that was in existence before September 1, 1993, and those trusts are validated as of the date of the creation of the trust.
SECTION 8. This Act takes effect September 1, 1997, and applies to all trusts created under Section 867, Texas Probate
Code, as amended by this Act, regardless of the date on which the trusts were created.
Sec. 868. TERMS OF MANAGEMENT TRUST.
(a) Except as provided by Subsection (d) of this section, a [A] trust created under Section 867 of
this code must provide that:
(1) the ward is the sole beneficiary of the trust;
(2) the trustee may disburse an amount of the trust's principal or income as the trustee determines is necessary to expend for the health, education, support, or maintenance of the ward;
(3) the income of the trust that the trustee does not disburse under Subdivision (2) of this subsection must be added to the principal of the trust;
(4) the trustee serves without giving a bond; and
(5) the trustee, on annual application to the court and subject to the court's approval, is entitled to receive reasonable compensation for services that the trustee provided to the ward as the ward's trustee that is:
(A) to be paid from the trust's income, principal, or both; and
(B) determined in the same manner as compensation of a guardian of an estate under Section 665 of this code.
(b) The trust may provide that a trustee make a distribution, payment, use, or application of trust funds for the health, education, support, or maintenance of the ward or of another person whom the ward is legally obligated to support, as necessary and without the intervention of a guardian or other representative of the ward, to:
(1) the ward's guardian; [or to]
(2) a person who has physical custody of the ward [for the health, education, support, or
maintenance of the ward] or [of] another person whom the ward is legally obligated to support;
or
(3) a person providing a good or service to the ward or another person whom the ward is legally obligated to support.
(c) [Repealed]
(d) When creating or modifying a trust, the court may omit or modify terms required by Subsection (a)(1) or (2) of this section only if the court determines that the omission or modification:
(1) is necessary and appropriate for the ward to be eligible to receive public benefits or assistance under a state or federal program that is not otherwise available to the ward; and
(2) is in the ward's best interests.
(e) The court may include additional provisions in a trust created or modified under this section if the court determines an addition does not conflict with Subsection (a) and, if appropriate, Subsection (d) of this section.
Amended by HB 1314 (Acts, 75th Legislature, Regular Session, Chapter 1375), enacted June 20, 1997, effective
September 1, 1997. See note following Section 867 regarding effective date.
Sec. 868A. DISCHARGE OF GUARDIAN OF ESTATE AND CONTINUATION OF TRUST.
On or at any time after the creation of a trust under this subpart, the court may discharge the guardian of the ward's estate only if a guardian of the ward's person remains and the court determines that the discharge is in the ward's best interests.
Added by HB 1314 (Acts, 75th Legislature, Regular Session, Chapter 1375), enacted June 20, 1997, effective September
1, 1997. See note following Section 867 regarding effective date.
Sec. 869B. APPLICABILITY OF TEXAS TRUST CODE.
(a) A trust created under Section 867 of this code is subject to Subtitle B, Title 9, Property Code.
(b) To the extent of a conflict between Subtitle B, Title 9, Property Code, and a provision of this subpart or of the trust, the provision of the subpart or trust controls.
Added by HB 1314 (Acts, 75th Legislature, Regular Session, Chapter 1375), enacted June 20, 1997, effective September
1, 1997. See note following Section 867 regarding effective date.
Sec. 869C. JURISDICTION OVER TRUST MATTERS.
A court that creates a trust under Section 867 of this code has the same jurisdiction to hear matters relating to the trust as the court has with respect to the guardianship and other matters covered by this chapter.
Added by HB 1314 (Acts, 75th Legislature, Regular Session, Chapter 1375), enacted June 20, 1997, effective September
1, 1997. See note following Section 867 regarding effective date.
Sec. 870. TERMINATION OF TRUST.
(a) [No change]
(b) If the ward is an incapacitated person other than a minor, the trust terminates on the date the
court determines that continuing the trust [a guardianship] is no longer in the ward's best
interests [necessary for the ward] or on the death of the ward.
Subsection (b) amended by HB 1314 (Acts, 75th Legislature, Regular Session, Chapter 1375), enacted June 20, 1997,
effective September 1, 1997. See note following Section 867 regarding effective date.
Sec. 886. APPOINTMENT OF RECEIVER.
(a) If any of the separate property of a person reported to be a prisoner of war or missing in action by the United States Department of Defense appears to be in danger of injury, loss, or waste and in need of a representative, a district judge of the county in which the person reported to be a prisoner of war or missing in action or the spouse of the person resides or where the endangered separate property is located may by order, with or without application, appoint a suitable person as receiver to take charge of the endangered separate property.
(b) The order must include a requirement that the receiver post bond as in ordinary receiverships in a sum the judge considers necessary to protect the separate
property and shall specify the duties and powers of the receiver as the judge considers necessary for the protection, conservation, and preservation of the separate
property.
(c) The clerk shall enter the order in the minutes of the court, and the person appointed shall post bond for submission to the judge for approval. On approval by
the judge, the bond shall be filed with the clerk.
(d) The receiver shall take charge of the endangered separate property under the duties and powers provided by the order of appointment and by subsequent
orders as the judge shall make.
Added by SB 334 (Acts, 75th Legislature, Regular Session, Chapter 7), enacted April 17, 1997, effective April 17, 1997.
Sec. 886A. EXPENDITURES BY RECEIVER.
If during the receivership under Section 886 of this code the needs of the spouse or dependent children of the person reported to be a prisoner of war or missing in action require the use of the income or corpus of the estate for education, clothing, or subsistence, the judge may, with or without application, by order entered in the minutes of the court, appropriate an amount of the income or corpus sufficient for that purpose. The income or corpus shall be used by the receiver to pay claims for education, clothing, or subsistence that are presented to the judge and approved and ordered to be paid.
Added by SB 334 (Acts, 75th Legislature, Regular Session, Chapter 7), enacted April 17, 1997, effective April 17, 1997.
Sec. 886B. INVESTMENTS, LOANS, AND CONTRIBUTIONS BY RECEIVER.
If during the receivership under Section 886 of this code the receiver has on hand an amount of money belonging to the person reported to be a prisoner of war or missing in action in excess of the amount needed for current necessities and expenses, the receiver may, under direction of the judge, invest, lend, or contribute all or a part of the excess money in the manner provided by this chapter for investments, loans, or contributions by guardians. The receiver shall report to the judge all transactions involving excess money in the manner that reports are required of guardians.
Added by SB 334 (Acts, 75th Legislature, Regular Session, Chapter 7), enacted April 17, 1997, effective April 17, 1997.
Sec. 886C. RECEIVER'S EXPENSES, ACCOUNT, AND COMPENSATION.
(a) All necessary expenses incurred by the receiver in administering the property may be reported monthly to the judge by a sworn statement of account, including a report of:
(1) the receiver's acts;
(2) the condition of the property;
(3) the status of the threatened danger to the property; and
(4) the progress made toward abatement of the threatened danger.
(b) If the judge is satisfied that the statement is correct and reasonable in all respects, the judge shall promptly by order approve the report and authorize the reimbursement of the receiver from the funds under the receiver's control.
(c) For official services rendered, the receiver is entitled to be compensated in the same manner and amount as is provided by this chapter for similar services rendered by guardians of estates.
Added by SB 334 (Acts, 75th Legislature, Regular Session, Chapter 7), enacted April 17, 1997, effective April 17, 1997.
Sec. 886D. CLOSING RECEIVERSHIP.
When the threatened danger has abated and the separate property is no longer liable to injury, loss, or waste for the lack of a representative, the receiver shall:
(1) report to the judge; and
(2) file with the clerk a full and final sworn account of:
(A) all property received by the receiver;
(B) all sums paid out;
(C) all acts performed by the receiver with respect to the property; and
(D) all property remaining in the receiver's control.
Added by SB 334 (Acts, 75th Legislature, Regular Session, Chapter 7), enacted April 17, 1997, effective April 17, 1997.
Sec. 886E. ACTION OF JUDGE.
(a) If on hearing the report and account the judge is satisfied that the danger of injury, loss, or waste has abated and that the report and account are correct, the judge shall render an order so finding and shall direct the receiver to deliver the property to the person from whom the receiver took possession as receiver, to the person who was reported to be a prisoner of war or missing in action, or to another person the judge finds to be entitled to possession of the estate. The person to whom the property is delivered shall execute and file with the clerk an appropriate receipt for the property delivered.
(b) The order of the judge shall discharge the receiver and the receiver's sureties.
(c) If the judge is not satisfied that the danger has abated, or is not satisfied with the report and account, the judge shall render an order continuing the receivership in effect until the judge is so satisfied.
Added by SB 334 (Acts, 75th Legislature, Regular Session, Chapter 7), enacted April 17, 1997, effective April 17, 1997.
Sec. 886F. RECORDATION OF PROCEEDINGS.
All orders, bonds, reports, accounts, and notices in the receivership proceedings shall be recorded in the minutes of the court.
Added by SB 334 (Acts, 75th Legislature, Regular Session, Chapter 7), enacted April 17, 1997, effective April 17, 1997.
Sec. 887. Payment of Claims Without Guardianship and Administration of Terminated Guardianship Assets.
(a) When a resident person who is a minor or other incapacitated person, or the former ward of a
guardianship terminated under Subpart C, Part 4, of this code, who are referred to in this section
as "creditor," are without a legal guardian of the person's estate, and the person is entitled to
money in an amount that is $50,000 [$25,000] or less, the right to which is liquidated and is
uncontested in any pending lawsuit, the debtor may pay the money to the county clerk of the
county in which the creditor resides to the account of the creditor, giving the creditor's name, the
creditor's social security identification number, the nature of the creditor's disability, and, if the
creditor is a minor, the minor's age, and the creditor's post-office address. The receipt for the
money signed by the clerk is binding on the creditor as of the date of receipt and to the extent of
the payment. The clerk, by letter mailed to the address given by the debtor, shall apprise the
creditor of the fact that the deposit was made. On receipt of the payment by the clerk, the clerk
shall call the receipt of the payment to the court's attention and shall invest the money as
authorized under this chapter pursuant to court order in the name and for the account of the
minor or other person entitled to the money. Any increase, dividend, or income from an
investment made under this section shall be credited to the account of the minor or other person
entitled to the investment. Any money that is deposited under the terms of this section that has not
been paid out shall be subject to the provisions of this chapter not later than October 1, 1993.
(b) - (d) [No change]
(e) When a nonresident minor, a nonresident person who is adjudged by a court of competent
jurisdiction to be incapacitated, or the former ward of a guardianship terminated under Subpart C,
Part 4, of this code who has no legal guardian qualified in this state is entitled to money in an
amount that is not more than $50,000 [$25,000] owing as a result of transactions within this state,
the right to which is liquidated and is uncontested in any pending lawsuit in this state, the debtor
in this state may pay the money to the guardian of the creditor who is duly qualified in the
domiciliary jurisdiction or to the county clerk of any county in this state in which real property
owned by the nonresident person is located. If the person is not known to own any real property
in any county in this state the debtor has the right to pay the money to the county clerk of the
county of this state in which the debtor resides. In either case, the debtor's payment to the clerk is
for the use and benefit and for the account of the nonresident creditor. The receipt for the
payment signed by the clerk that recites the name of the creditor and the post office address of the
creditor, if known, is binding on the creditor as of the date and to the extent of the payment. The
clerk shall handle the money paid to the clerk by the debtor in the same manner as provided for
cases of payments to the accounts of residents of this state under Subsections (a)-(d) of this
section. All applicable provisions of Subsections (a)-(d) of this section apply to the handling and
disposition of money or any increase, dividend, or income paid to the clerk for the use, benefit,
and account of the nonresident creditor.
(f) - (g) [No change]
Subsections (a) and (d) amended by HB 1126 (Acts, 75th Legislature, Regular Session, Chapter 295), enacted May 26,
1997, effective September 1, 1997.
SUBPART F. SALE OF PROPERTY OF MINORS
AND CERTAIN WARDS [MINOR]
Amended by HB 1126 (Acts, 75th Legislature, Regular Session, Chapter 295), enacted May 26, 1997, effective September
1, 1997.
Sec. 889. SALE OF PROPERTY OF MINOR.
(a) When the net value of the minor's interest in real or personal property in an estate does not
exceed $50,000[$25,000], a natural or adoptive parent, or the managing conservator, of a minor
who is not a ward may apply to the court for an order to sell the real or personal property of a
minor in an estate without being appointed guardian. A minor may not disaffirm a sale of property
pursuant to a court order under this section.
(b) - (f) [No change]
Subsection (a) amended by HB 1126 (Acts, 75th Legislature, Regular Session, Chapter 295), enacted May 26, 1997,
effective September 1, 1997.
Sec. 890. SALE OF PROPERTY OF WARD WITHOUT GUARDIANSHIP OF THE ESTATE.
(a) This section applies only to a ward who has a guardian of the person but does not have a guardian of the estate.
(b) When a ward has an interest in real or personal property in an estate and the net value of the interest does not exceed $50,000, the guardian may apply under oath to the court for an order to sell the ward's interest in the property without being appointed guardian of the estate. A ward may not disaffirm a sale of property pursuant to a court order under this section.
(c) Venue for an application under this section is the same as venue for an application for the appointment of a guardian for the ward. The application must contain the same information required by Section 889(b) of this code.
(d) On receipt of the application, the court shall set the application for hearing at a date not earlier than five days from the date of the filing of the application. If the court considers it necessary, the court may cause citation to be issued.
(e) The procedures and evidentiary requirements for a hearing of an application filed under this section are the same as the procedures and evidentiary requirements for a hearing of an application filed under Section 889 of this code.
(f) When the court enters the order of sale, the purchaser of the property shall pay the proceeds of the sale belonging to the ward into the court registry.
(g) Nothing in this section prevents the proceeds deposited in the court registry from being withdrawn as prescribed by Section 887 of this code.
Added by HB 1126 (Acts, 75th Legislature, Regular Session, Chapter 295), enacted May 26, 1997, effective September 1, 1997.
1997 Amendments to the Texas Trust Code
| This is a compilation of the amendments to the Texas Trust Code made by the 75th Texas Legislature
during the 1997 regular legislative session. Additions are italicized and underlined. [ Glenn M. Karisch, Ikard & Golden, P. C., August 26, 1997 |
Sec. 112.035. SPENDTHRIFT TRUSTS.
(a) -- (d) [No change]
(e) A beneficiary of the trust may not be considered a settlor merely because of a lapse, waiver, or release of the beneficiary's right to withdraw a part of the trust property if the value of the property that could have been withdrawn by exercising the right of withdrawal in any calendar year does not exceed at the time of the lapse, waiver, or release the greater of the amount specified in:
(1) Section 2041(b)(2) or 2514(e), Internal Revenue Code of 1986; or
(2) Section 2503(b), Internal Revenue Code of 1986.
Subsection (e) added by SB 998 (Acts, 75th Legislature, Regular Session, Chapter 109), enacted May 16, 1997, effective
September 1, 1997.
Sec. 114.001. LIABILITY OF TRUSTEE TO BENEFICIARY.
(a) -- (d) [No change]
(e) The trustee has the same protection from liability provided for a fiduciary under 42 U.S.C. Section 9607(n).
Subsection (e) added by SB 911 (Acts, 75th Legislature, Regular Session, Chapter 263, enacted May 26, 1997, effective
September 1, 1997.
Sec. 115.001. JURISDICTION.
(a) -- (c) [No change]
(d) The jurisdiction of the district court over proceedings concerning trusts is exclusive except for jurisdiction conferred by law on a statutory probate court or a court that creates a trust under Section 867, Texas Probate Code.
Subsection (d) amended by HB 1314 (Acts, 75th Legislature, Regular Session, Chapter 1375), enacted June 20, 1997, effective September 1, 1997. Section 8 of HB 1314 provides:
This Act takes effect September 1, 1997, and applies to all trusts created under Section 867, Texas Probate Code, as
amended by this Act, regardless of the date on which the trusts were created.
Recodified Title 1 of The Texas Family Code
The 75th Texas Legislature enacted Senate Bill 334 (Acts, 75th Legislature, Regular Session, Chapter 7), a recodification of Title 1 of the Texas Family Code. When Governor Bush signed the bill on April 17, 1997, the bill became immediately effective. This means that, unlike most legislation, which becomes law on September 1, 1997, the recodification of Title 1 of the Family Code is effective now. The old Title 1 has been repealed. Section 4 of SB 334 provides:
The change in law made by this Act does not affect a proceeding under the Family Code pending on the effective date of this Act [April 17, 1997]. A proceeding pending on the effective date of this Act is governed by the law in effect at the time the proceeding was commenced, and the former law is continued in effect for that purpose. [Emphasis added]
Clearly, suits for divorce, annulment, enforcement and modification of family court orders, etc., are "proceedings under the Family Code," so pending proceedings of this type are still governed by the old law. It is not so clear, however, what happens to pending proceedings in probate which involve Family Code provisions, such as proceedings involving decedents which involve marital property characterization issues and/or marital property liability issues. Also, the bill has added provisions to the Probate Code regarding a receivership for MIAs.
After the passage of SB 334, the Legislature passed six additional bills making changes to Title 1 of the Family Code: SB 712, SB 798, SB 1253, SB 1478, HB 891 and HB 2069. All of those changes become effective September 1, 1997.
A Guide to the Recodified Title 1 of the Texas Family Code is available on the web at http://www.io.com/~karisch/97probate.html. (Click "Practice Aids for Attorneys.") The Guide includes the full text of SB 334, the changes made by other bills amending Title 1 of the Family Code, a old-section-to-new-section conversion table, and a new-section-to-old-section conversion table.
Summary of 1997 Legislative Changes
Affecting Disability Planning
These three bills from the 75th Texas legislature affected disability planning:
1. SB 620 -- This was the durable power of attorney bill authored by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It made several changes to 1993's Durable Power of Attorney Act. The change which is most likely to affect estate planners is, in effect, a new statutory durable power of attorney form. The new form, for use on and after September 1, 1997:
a. Adopts a strike-out method of designating specific powers, rather than the initial-the-box method of the old form, which should be less confusing and less susceptible to fraud.
b. Makes the statutory form a general power of appointment if no specific powers are struck.
c. Includes an optional provision for making annual exclusion gifts (which must be separately initialed).
d. Eliminates the requirement for including the principal's social security number.
e. Specifies a procedure for determining disability if a springing power is used.
Use of the statutory form remains optional. SB 620 also provides for the automatic revocation of the designation of a spouse as agent upon divorce, clarifies that oil and gas transactions are covered by "Real Property Transactions" and defines "retirement plans" to include IRAs, qualified plans, etc. SB 620 has been signed by Governor Bush and becomes law on September 1, 1997.
2. HB 880 -- HB 880 changed the witness requirements on directives to physicians. Under these changes:
. The person designated to make a treatment decision under the directive to physicians may not be a witness to the directive.
. A patient in the health care facility where the declarant is a patient is no longer prohibited from being a witness.
. Under the old law, an employee of the health care facility who "is directly involved in the financial affairs of the facility" was prohibited from being a witness. Under the new law, that vague standard is made more objective. Now, a person who "is an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility" is prohibited from being a witness.
These changes to the witnessing requirements necessitated a change to the statutory form of directive to physicians. The form remains optional, however -- nonstandard forms may be used.
HB 880 also made a change to the procedure for making a treatment decision for a person with no guardian. Under HB 880, the attending physician must now document and sign the treatment decision in the patient's medical record, and if the patient has no legal guardian or other relative available, a treatment decision must be witnessed by another physician who is not involved in the treatment of the patient.
The changes made by HB 880 take effect January 1, 1998.
3. SB 972 -- SB 972 adds new Chapter 137 to the Civil Practices and Remedies Code, permitting a person who is not incapacitated to declare how he or she wishes to be treated for mental illness if he or she later is adjudicated incapacitated by the probate court or in a "medication hearing" under Section 574.106 of the Health and Safety Code. A mental health declaration expires after three years, but it continues if the person is incapacitated at the end of the three-year period. This form permits the declarant to consent (or not consent) to the use of electroconvulsive treatment, specific psychoactive medications, and emergency mental health treatment.
SB 972 includes a mandatory statutory form. It seems unlikely that a declaration for mental health treatment will become a "standard" disability planning document, as the health care power, directive to physician, declaration of guardian and durable power of attorney have become. Rather, it seems likely that this new declaration will be used in cases where incapacity due to a specific condition is likely and the declarant can make informed decisions about how he or she wishes to be treated.
SB 972 becomes effective September 1, 1997.
Table -- Statutory Disability Planning Forms (After 1997
Changes)
| Durable Power of Attorney | Health Care Power of Attorney | Directive to Physicians | Declaration of Guardian | Out-of-Hospital DNR Orders | Declarations of Mental Health Treatment | |
| Old Statutory Reference | Probate Code §§ 481 -- 506 | Chapter 135, Civil Practices and Remedies Code | Chapter 672,
Health and Safety Code |
Probate Code § 677A, §679 | Chapter 674, Health and Safety Code | None |
| New Statutory Reference | Same | Same | Same | Same | Same | Chapter 137, Civil Practices and Remedies Code |
| Changes to statutory form | Several substantive changes | None | Minor changes (witness requirements) | None | No statutory form (Texas Board of Health promulgates form) | New form |
| Is Statutory Form Mandatory? | No | Yes | No | No | Yes (board-approved form) | Yes |
| Other statutory changes | Yes | No | Yes | No | No | Yes |
| Must Be Notarized? | Yes | No | No | Yes | No | No |
| Number of Witnesses Required | none | two | two | two | two, plus the attending physician | two |
| Duration | Until death, revocation or appointment of guardian of estate | Until revocation, and court may revoke it if guardian is appointed | Until revocation | Until revocation | Until revocation | 3rdAnniversary of signing or revocation (but continues in effect if declarant is incapacitated at end of 3 years) |
| Effect of Divorce After Signing | Powers of former spouse as agent terminate, but third parties protected | Power is revoked if former spouse is agent | None | Designation of spouse has no effect upon divorce | None | None |
| 1997 Bills Making Changes | SB 620 | None | HB 880 | None | None | SB 972 |
| Effective Date | 9/1/97 | n/a | 1/1/98 | n/a | n/a | 9/1/97 |
The New Statutory Durable Power of Attorney Form
STATUTORY DURABLE POWER OF ATTORNEY
NOTICE: THE POWERS GRANTED BY THIS DOCUMENT ARE BROAD AND
SWEEPING. THEY ARE EXPLAINED IN THE DURABLE POWER OF ATTORNEY ACT,
CHAPTER XII, TEXAS PROBATE CODE. IF YOU HAVE ANY QUESTIONS ABOUT
THESE POWERS, OBTAIN COMPETENT LEGAL ADVICE. THIS DOCUMENT DOES
NOT AUTHORIZE ANYONE TO MAKE MEDICAL AND OTHER HEALTH-CARE
DECISIONS FOR YOU. YOU MAY REVOKE THIS POWER OF ATTORNEY IF YOU
LATER WISH TO DO SO.
I, _____________________________________________________ (insert your name and
address), appoint
______________________________________________________________________ (insert
the name and address of the person appointed) as my agent (attorney-in-fact) to act for me in any
lawful way with respect to all of the following powers except for a power that I have crossed out
below.
TO WITHHOLD A POWER, YOU MUST CROSS OUT EACH POWER WITHHELD.
Real property transactions;
Tangible personal property transactions;
Stock and bond transactions;
Commodity and option transactions;
Banking and other financial institution transactions;
Business operating transactions;
Insurance and annuity transactions;
Estate, trust, and other beneficiary transactions;
Claims and litigation;
Personal and family maintenance;
Benefits from social security, Medicare, Medicaid, or other governmental programs or civil or military service;
Retirement plan transactions;
Tax matters.
IF NO POWER LISTED ABOVE IS CROSSED OUT, THIS DOCUMENT SHALL BE
CONSTRUED AND INTERPRETED AS A GENERAL POWER OF ATTORNEY AND MY
AGENT (ATTORNEY IN FACT) SHALL HAVE THE POWER AND AUTHORITY TO
PERFORM OR UNDERTAKE ANY ACTION I COULD PERFORM OR UNDERTAKE IF I
WERE PERSONALLY PRESENT.
SPECIAL INSTRUCTIONS:
Special instructions applicable to gifts (initial in front of the following sentence to have it apply):
I grant my agent (attorney in fact) the power to apply my property to make gifts, except that the
amount of a gift to an individual may not exceed the amount of annual exclusions allowed from
the federal gift tax for the calendar year of the gift.
ON THE FOLLOWING LINES YOU MAY GIVE SPECIAL INSTRUCTIONS LIMITING OR EXTENDING THE POWERS GRANTED TO YOUR AGENT.
______________________________________________________________________________
______________________________________________________________________________
_____________________________________________________________________________
UNLESS YOU DIRECT OTHERWISE ABOVE, THIS POWER OF ATTORNEY IS
EFFECTIVE IMMEDIATELY AND WILL CONTINUE UNTIL IT IS REVOKED.
CHOOSE ONE OF THE FOLLOWING ALTERNATIVES BY CROSSING OUT THE
ALTERNATIVE NOT CHOSEN:
(A) This power of attorney is not affected by my subsequent disability or incapacity.
(B) This power of attorney becomes effective upon my disability or incapacity.
YOU SHOULD CHOOSE ALTERNATIVE (A) IF THIS POWER OF ATTORNEY IS TO
BECOME EFFECTIVE ON THE DATE IT IS EXECUTED.
IF NEITHER (A) NOR (B) IS CROSSED OUT, IT WILL BE ASSUMED THAT YOU CHOSE
ALTERNATIVE (A).
If Alternative (B) is chosen and a definition of my disability or incapacity is not contained in this
power of attorney, I shall be considered disabled or incapacitated for purposes of this power of
attorney if a physician certifies in writing at a date later than the date this power of attorney is
executed that, based on the physician's medical examination of me, I am mentally incapable of
managing my financial affairs. I authorize the physician who examines me for this purpose to
disclose my physical or mental condition to another person for purposes of this power of attorney.
A third party who accepts this power of attorney is fully protected from any action taken under
this power of attorney that is based on the determination made by a physician of my disability or
incapacity.
I agree that any third party who receives a copy of this document may act under it. Revocation of
the durable power of attorney is not effective as to a third party until the third party receives
actual notice of the revocation. I agree to indemnify the third party for any claims that arise
against the third party because of reliance on this power of attorney.
If any agent named by me dies, becomes legally disabled, resigns, or refuses to act, I name the
following (each to act alone and successively, in the order named) as successor(s) to that agent:
_______________________________________________________.
Signed this ______ day of __________, 19___.
__________________________________
(your signature)
State of _______________________
County of ______________________
This document was acknowledged before me on __________________________(date) by
_______________________________ (name of principal).
___________________________________
(signature of notarial officer)
(Seal, if any, of notary) ___________________________________
(printed name)
My commission expires: _______________
THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.
The New Directive to Physicians Form
DIRECTIVE TO PHYSICIANS
Directive made this __________ day of __________ (month, year).
I, ____________________, being of sound mind, wilfully and voluntarily make known my desire
that my life shall not be artificially prolonged under the circumstances set forth in this directive.
1. If at any time I should have an incurable or irreversible condition caused by injury, disease, or
illness certified to be a terminal condition by two physicians, and if the application of
life-sustaining procedures would serve only to artificially postpone the moment of my death, and
if my attending physician determines that my death is imminent or will result within a relatively
short time without the application of life-sustaining procedures, I direct that those procedures be
withheld or withdrawn, and that I be permitted to die naturally.
2. In the absence of my ability to give directions regarding the use of those life-sustaining procedures, it is my intention that this directive be honored by my family and physicians as the final expression of my legal right to refuse medical or surgical treatment and accept the consequences from that refusal.
3. If I have been diagnosed as pregnant and that diagnosis is known to my physician, this
directive has no effect during my pregnancy.
4. This directive is in effect until it is revoked.
5. I understand the full import of this directive and I am emotionally and mentally competent to
make this directive.
6. I understand that I may revoke this directive at any time.
Signed ____________________________________________
____________________________________________
(City, County, and State of Residence)
I am not a person designated by the declarant to make a treatment decision. I am not related to the declarant by blood or marriage. I would not be entitled to any portion of the declarant's estate on the declarant's death. I am not the attending physician of the declarant or an employee of the attending physician. I have no claim against any portion of the declarant's estate on the declarant's death. Furthermore, if I am an employee of a health care facility in which the declarant is a patient, I am not involved in providing direct patient care to the declarant and am not an officer, director, partner, or business office employee of the health care facility or of any parent organization of the health care facility.
Witness ____________________________________________
Witness ____________________________________________
The New Declaration for Mental Health Treatment Form
DECLARATION FOR MENTAL HEALTH TREATMENT
I, __________________, being an adult of sound mind, wilfully and voluntarily make this
declaration for mental health treatment to be followed if it is determined by a court that my ability
to understand the nature and consequences of a proposed treatment, including the benefits, risks,
and alternatives to the proposed treatment, is impaired to such an extent that I lack the capacity to
make mental health treatment decisions. "Mental health treatment" means electroconvulsive or
other convulsive treatment, treatment of mental illness with psychoactive medication, and
preferences regarding emergency mental health treatment.
(OPTIONAL PARAGRAPH) I understand that I may become incapable of giving or withholding informed consent for mental health treatment due to the symptoms of a diagnosed mental disorder. These symptoms may include:
___________________________________________________________________
___________________________________________________________________
PSYCHOACTIVE MEDICATIONS
If I become incapable of giving or withholding informed consent for mental health treatment, my
wishes regarding psychoactive medications are as follows:
_____ I consent to the administration of the following medications:
___________________________________________________________________
_____ I do not consent to the administration of the following medications:
___________________________________________________________________
_____ I consent to the administration of a federal Food and Drug Administration approved medication that was only approved and in existence after my declaration and that is considered in the same class of psychoactive medications as stated below:
___________________________________________________________________
___________________________________________________________________
Conditions or limitations:_________________________________________
___________________________________________________________________
___________________________________________________________________
CONVULSIVE TREATMENT
If I become incapable of giving or withholding informed consent for mental health treatment, my
wishes regarding convulsive treatment are as follows:
_____ I consent to the administration of convulsive treatment.
_____ I do not consent to the administration of convulsive treatment.
Conditions or limitations:_________________________________________
___________________________________________________________________
___________________________________________________________________
PREFERENCES FOR EMERGENCY TREATMENT
In an emergency, I prefer the following treatment FIRST (circle one)
Restraint/Seclusion/Medication.
In an emergency, I prefer the following treatment SECOND (circle one)
Restraint/Seclusion/Medication.
In an emergency, I prefer the following treatment THIRD (circle one)
Restraint/Seclusion/Medication.
______ I prefer a male/female to administer restraint, seclusion, and/or medications.
Options for treatment prior to use of restraint, seclusion, and/or medications:
___________________________________________________________________
___________________________________________________________________
Conditions or limitations:_________________________________________
___________________________________________________________________
ADDITIONAL PREFERENCES OR INSTRUCTIONS
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
Conditions or limitations:_________________________________________
___________________________________________________________________
___________________________________________________________________
Signature of Principal/Date: _____________________________________
STATEMENT OF WITNESSES
I declare under penalty of perjury that the principal's name has been represented to me by the
principal, that the principal signed or acknowledged this declaration in my presence, that I believe
the principal to be of sound mind, that the principal has affirmed that the principal is aware of the
nature of the document and is signing it voluntarily and free from duress, that the principal
requested that I serve as witness to the principal's execution of this document, and that I am not a
provider of health or residential care to the principal, an employee of a provider of health or
residential care to the principal, an operator of a community health care facility providing care to
the principal, or an employee of an operator of a community health care facility providing care to
the principal.
I declare that I am not related to the principal by blood, marriage, or adoption and that to the best
of my knowledge I am not entitled to and do not have a claim against any part of the estate of the
principal on the death of the principal under a will or by operation of law.
Witness Signature:_________________________________________________
Print Name:________________________________________________________
Date:______________________
Address:___________________________________________________________
Witness Signature:_________________________________________________
Print Name:________________________________________________________
Date:______________________
Address:___________________________________________________________
NOTICE TO PERSON MAKING A DECLARATION
FOR MENTAL HEALTH TREATMENT
This is an important legal document. It creates a declaration for mental health treatment. Before
signing this document, you should know these important facts:
This document allows you to make decisions in advance about mental health treatment and specifically three types of mental health treatment: psychoactive medication, convulsive therapy, and emergency mental health treatment. The instructions that you include in this declaration will be followed only if a court believes that you are incapacitated to make treatment decisions. Otherwise, you will be considered able to give or withhold consent for the treatments
.
This document will continue in effect for a period of three years unless you become incapacitated
to participate in mental health treatment decisions. If this occurs, the directive will continue in
effect until you are no longer incapacitated.
You have the right to revoke this document in whole or in part at any time you have not been
determined to be incapacitated. YOU MAY NOT REVOKE THIS DECLARATION WHEN
YOU ARE CONSIDERED BY A COURT TO BE INCAPACITATED. A revocation is
effective when it is communicated to your attending physician or other health care provider.
If there is anything in this document that you do not understand, you should ask a lawyer to
explain it to you. This declaration is not valid unless it is signed by two qualified witnesses who
are personally known to you and who are present when you sign or acknowledge your signature.
Modifying Existing Guardianships
So That 1997 Legislation Applies
© 1997 by Glenn M. Karisch
The 75th Texas Legislature passed three bills affecting guardianships which will apply only to new guardianships (those created after September 1, 1997) unless old guardianships are modified:
1. SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77) ("SB 997"), which provides in part as follows:
A court may modify a guardianship in effect on September 1, 1997, to conform with the requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or on application by the ward, the guardian, or any other interested person or entity.
2. HB 1316 (Acts, 75th Legislature, Regular Session, Chapter 434) ("HB 1316"), which provides in part as follows:
A court may modify any guardianship in effect on September 1, 1997, to conform with the requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or on application by the ward, the guardian, or any other interested person or entity.
3. HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403) ("HB 2189"), which provides in part as follows:
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.
Should existing guardianships be modified to make the new law applicable? Some of the provisions of these three bills are irrelevant to existing guardianships. For example, SB 997 eliminates the requirement that social security numbers be placed on the application for a guardianship. This change does not affect existing guardianships.
The following table summarizes the substantive changes made by SB 997, HB 1316 and HB 2189 affecting guardianships (listed in order of the probate code section amended) and the author's opinion about their probable effect on existing guardianships:
| Section | Bill | Description of Change | Effect on Existing Guardianships | Modify? |
| 609(c) | SB 997 | Fixes statutory reference to recodified provision in Family Code | Existing guardianships would benefit from correct statutory reference, but this is not very important. | Modification is beneficial but not important. |
| 633(c) | SB 997 | Requires notice of guardianship application to persons named in declarations of guardian | The only possible effect would be if an application to appoint a successor guardian is filed. | Modification is not important. |
| 671 | SB 997 | Judges may keep identifying information regarding applicants and guardians. (Quid pro quo for eliminating requirement for social security numbers on applications.) | It may interfere with the smooth administration of this new system if existing guardianships are not included, but presumably judges can get and maintain this information regarding existing guardianships even if the statute doesn't apply. | Modification is not important. |
| 676A | SB 997 | Changes reference for designation of guardian by parents for child | Irrelevant. | Modification is irrelevant. |
| 682 | SB 997 | Eliminates social security requirement on guardianship applications. | Irrelevant except possibly for applications to appoint successor guardian. | Modification is not important. |
| 743 | HB 2189 | Annual reports of guardians of the person must state that the bond premium has been paid. | Although this is part of HB 2189, HB 2189 states that this change applies to all reports filed on or after September 1, 1997. | Modification is irrelevant. |
| 749 | HB 2189 | Guardian's final account must include statements regarding payment of bond premiums, taxes, etc. | Although this is part of HB 2189, HB 2189 states that this change applies to all accounts filed on or after September 1, 1997. | Modification is irrelevant. |
| 774 | SB 997 | Guardian may abandon worthless or burdensome property with court order. | Modification is potentially important, although modification can be postponed until application to abandon property is filed since a court order is required anyway. | Modification is important. |
| 776A | SB 997 | Establishes procedure and criteria for ordering payments to support ward's spouse or dependents. | Modification is needed to make this procedure and these criteria apply. | Modification is important. |
| 783 | SB 997 | Changes erroneous reference from "decedent" to "ward" in connection with notices to creditors, etc. | Irrelevant if more than one month has passed since the guardian's letters were granted, unless a successor guardian is later appointed. | Modification is beneficial but not important. |
| 805 | HB 2189 | Establishes superpriority for payment of administrative claims in an insolvent guardianship estate. | Modification is very important. Without modification, claims for the ward's care and maintenance, expenses of last illness and funeral expenses come before administrative claims. With modification, administrative claims leapfrog over those competing claims. | Modification is very important, although asking the Court to modify for this reason alone raises fiduciary issues (putting guardian and attorney before ward, etc.). Better to ask for modification now (right after statute passes), rather than waiting for competing creditors claims to arise. |
| 856 | HB 1316 | Guardian can invest in the Texas Tomorrow Fund with court approval. | It is probably a good idea to modify existing guardianships so that this option is available, but it is not essential since a court order approving this investment is required. | Modification is beneficial but not essential. If assets are actually invested in Texas Tomorrow Fund, existing guardianships should be modified. |
| 865 | SB 997 | Procedure for tax-motivated gifts improved and list of permissible recipients is expanded. | Modification is very important of there is a potential taxable estate. | Modification is important, and it is better to modify now (right after statute passes), rather than waiting for the time when gifts are to be made, when there may be conflicts over who is entitled to the gifts. |
It is the author's opinion that, while many of the changes are irrelevant or unimportant with respect to existing guardianships, there are enough important changes that attorneys representing guardians promptly should seek modification of prior guardianships for purposes of all three statutes. This is particularly true of the changes to Section 805 (affecting the priority of claims in insolvent guardianships) and Section 865 (regarding tax-motivated gifts). By going forward with a modification request now, when the statutes have just passed, potential conflicts and breach of fiduciary duty issues may be avoided later.
Ideally the courts supervising guardianships will enter blanket administrative orders modifying guardianships to conform with the new legislation. Judge Guy Herman of Travis County Probate Court No. 1 has indicated that he intends to do so. Attached hereto is a proposed form of a blanket administrative order. By entering such an order, judges can assure that all guardianships under their supervision are governed by the same laws, and judges can take the monkey off the guardians' (and the guardians' attorneys') backs to seek and obtain modification in multiple guardianships.
If the court supervising a particular guardianship does not enter a blanket order, the forms
attached hereto for applications for and orders modifying existing guardianships may be used.
CAUSE NO. _________
GUARDIANSHIP OF
[WARD'S NAME],
AN INCAPACITATED PERSON
APPLICATION FOR MODIFICATION OF GUARDIANSHIP
TO CONFORM WITH 1997 LEGISLATION
[Guardian's Name] ("Guardian"), guardian of the person and estate of [Ward's Name] ("Ward"),
an incapacitated person, files this application for modification of the guardianship of the person
and estate of Ward (the "Guardianship") to conform with 1997 legislation as described below. In
support of this application, Guardian would show the Court as follows:
1. The Guardianship was in existence on September 1, 1997.
2. The 75th Texas Legislature enacted three bills affecting guardianships which permit the Court to
modify guardianships in effect on September 1, 1997, to conform to the requirements of the new
legislation:
a. SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77) ("SB 997"), which provides in
part as follows:
A court may modify a guardianship in effect on September 1, 1997, to conform with the
requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or
on application by the ward, the guardian, or any other interested person or entity.
b. HB 1316 (Acts, 75th Legislature, Regular Session, Chapter 434) ("HB 1316"), which provides
in part as follows:
A court may modify any guardianship in effect on September 1, 1997, to conform with the
requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or
on application by the ward, the guardian, or any other interested person or entity.
c. HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403) ("HB 2189"), which provides
in part as follows:
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.
3. Each of these three bills represents an improvement over the prior law of this state regarding
guardianships. It is in the best interests of both Ward and Guardian if the Guardianship is
modified to conform with the new legislation.
Prayer
Guardian prays that the Court will grant this application; that the Court will modify the
Guardianship to conform with the requirements of the Texas Probate Code, as amended by SB
997, HB 1316 and HB 2189; and that the Court will grant to Guardian such other relief to which
Guardian may justly be entitled.
Respectfully submitted,
[Signature Block]
ATTORNEY FOR [GUARDIAN'S NAME],GUARDIAN
CAUSE NO. _________
GUARDIANSHIP OF§
[WARD'S NAME],§
AN INCAPACITATED PERSON
ORDER MODIFYING GUARDIANSHIP TO CONFORM WITH
1997
On this day the Court considered the application filed by [Guardian's Name] ("Guardian"),
guardian of the person and estate of [Ward's Name] ("Ward"), an incapacitated person, for
modification of the guardianship of the person and estate of Ward (the "Guardianship") to
conform with 1997 legislation. The Court finds that:
1. The Guardianship was in existence on September 1, 1997.
2. The 75th Texas Legislature enacted three bills affecting guardianships which permit the Court to
modify guardianships in effect on September 1, 1997, to conform to the requirements of the new
legislation:
a. SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77) ("SB 997"), which provides in
part as follows:
A court may modify a guardianship in effect on September 1, 1997, to conform with the
requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or
on application by the ward, the guardian, or any other interested person or entity.
b. HB 1316 (Acts, 75th Legislature, Regular Session, Chapter 434) ("HB 1316"), which provides
in part as follows:
A court may modify any guardianship in effect on September 1, 1997, to conform with the
requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or
on application by the ward, the guardian, or any other interested person or entity.
c. HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403) ("HB 2189"), which provides
in part as follows:
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.
3. Each of these three bills represents an improvement over the prior law of this state regarding
guardianships. It is in the best interests of both Ward and Guardian if the Guardianship is
modified to conform with the new legislation.
IT IS, THEREFORE, ORDERED that the Guardianship is modified to conform with the
requirements of the Texas Probate Code, as amended by SB 997, HB 1316 and HB 2189.
SIGNED this _________ day of ____________________, 1997.
__________________________________________
JUDGE PRESIDING
IN THE _____________ COURT OF _______________ COUNTY, TEXAS
ADMINISTRATIVE ORDER AFFECTING
ALL GUARDIANSHIPS IN EFFECT ON SEPTEMBER 1, 1997
The Court, on its own motion, enters this administrative order regarding 1997 legislation affecting
guardianships. This order shall apply to each guardianship under the Court's supervision which is
in effect on September 1, 1997.
The 75th Texas Legislature enacted three bills affecting guardianships which permit the Court to
modify guardianships in effect on September 1, 1997, to conform to the requirements of the new
legislation:
SB 997 (Acts, 75th Legislature, Regular Session, Chapter 77) ("SB 997"), which provides in part
as follows:
A court may modify a guardianship in effect on September 1, 1997, to conform with the
requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or
on application by the ward, the guardian, or any other interested person or entity.
HB 1316 (Acts, 75th Legislature, Regular Session, Chapter 434) ("HB 1316"), which provides in
part as follows:
A court may modify any guardianship in effect on September 1, 1997, to conform with the
requirements of the Texas Probate Code, as amended by this Act, on the court's own motion or
on application by the ward, the guardian, or any other interested person or entity.
HB 2189 (Acts, 75th Legislature, Regular Session, Chapter 1403) ("HB 2189"), which provides in
part as follows:
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.
The Court finds that each of these three bills represents an improvement over the prior law of this
state and that it is in the best interests of the wards of this Court and their guardians if existing
guardianships are modified to conform with the new legislation. The Court also finds that
modification of existing guardianships to conform with the new legislation will promote judicial
efficiency and economy, since all guardianships supervised by this Court regardless of their dates
of creation will be governed by the same law.
IT IS, THEREFORE, ORDERED that, effective September 1, 1997, each guardianship under this
Court's supervision which is in effect on September 1, 1997, is hereby modified to conform with
the requirements of the Texas Probate Code, as amended by SB 997, HB 1316 and HB 2189.
SIGNED this _________ day of ____________________, 1997.
__________________________________________
JUDGE PRESIDING