Recently Posted to Texas Probate
Gerry Beyer's Blog Posts

Welcome to the Texas Probate Web Site, your source for information on estate planning, probate and trust law in Texas.  This site is owned and maintained by Glenn Karisch of The Karisch Law Firm, PLLC, of Austin, Texas.  For older information, visit the legacy site at


Changes to forms effective September 1, 2015

As usual, the biennial session of the Texas legislature requires attorneys to update forms in the estate planning, probate, guardianship and trust areas.  Since most of the bills passed in 2015 became effective September 1, 2015, the new forms should be used beginning on that date.

Here is a collection of statutory changes which require form changes.  Also, Bill Pargaman, chair of the Real Estate, Probate and Trust Law Section of the State Bar of Texas, has prepared this list of important changes to note on September 1, 2015.

One-signature combo self-proving affidavit forms

The one-signature combination will and self-proving affidavit form has been changed to correct the tenses of the verbs.  Tex. Est. Code §251.1045(a).  The verb tenses also were corrected in the one-signature combination declaration of guardian and self-proving affidavit forms.  Tex. Est. Code §§1104.154 and 1104.205.

Directive to Physicians and Family or Surrogates

The statutory Directive to Physicians and Family or Surrogates form was revised slightly, including changing the term “artificial nutrition and hydration” to “artificially administered nutrition and hydration.”  Tex. Health and Safety Code §166.033.  

Word and pdf versions of the new form may be found among the disability planning forms on this website.

Appointment for Disposition of Remains

The statutory Appointment of Agent for Disposition of Remains form (Tex. Health and Safety Code §711.002) was renamed the “Appointment for Dispositions of Remains” and revised extensively. It no longer includes blanks in the body of the document for the agent to sign to accept appointment.  Rather, it provides that the instrument is valid without the signature of agents or successor agents.  At the end of the form it provides a place for the agent to accept the appointment before acting as agent. The agent’s signature after the principal’s death makes the instrument legally sufficient. Also, it automatically revokes the authority of an ex-spouse on divorce.    

Section 711.002 now includes the duly qualified executors and administrators of a decedent’s estate in the order of persons having the right to control the disposition of the decedent’s remains and provides that an executor or administrator is not personally liable for the reasonable cost of interment.

Word and pdf versions of the new form may be found among the disability planning forms on this website.

Application to probate will

In the application to probate a will, the applicant must state the date of death, not the time of death.  If the original will is not produced in court, the applicant is no longer required to state the age and marital status of each devisee or heir, but he or she must state whether or not the devisee or heir is an adult or minor.  Tex. Est. Code §§256.052 and 256.054.  If the application is to probate the will as a muniment of title, the applicant also must state the name, state of residence, and physical address where service can be had of the executor named in the will, as well as the name of each subscribing witness.  The residence address of the executor and witnesses no longer needs to be included.  Tex. Est. Code §257.051.

Application for letters of administration

In the application for letters of administration, the applicant must state the date of death, not the time of death, and the applicant is no longer required to state the age and marital status of each heir, but he or she must state whether or not the heir is an adult or minor.  Tex. Est. Code §§301.052.

Determination of heirship

In the application for determination of heirship, the applicant must state the date of death, not the time of death, and the applicant must state the physical address where service may be had of each heir and must state if each heir is an adult or a minor.  Tex. Est. Code §202.005.  Also, Sections 202.055 and 202.056 were amended to make it clear that a party may waive citation in an heirship proceeding and that no service is required on a party who enters and appearance in an heirship proceeding.  The judgment declaring heirship no longer needs to state the places of residence of heirs; it only must state their names.  Tex. Est. Code §202.201.

Affidavit or certificate of compliance with notice to beneficiaries requirement

The independent executor or his or her attorney is required to sign and file an affidavit or certification confirming compliance with the notice to beneficiary requirements of Section 308.002. Now the affidavit or certification no longer is required to state the addresses of beneficiaries. Tex. Est. Code §308.004.

Small estate affidavits

Previously a small estate affidavit had to include a list of all known estate assets and liabilities.  Now that list must indicate which assets the applicant claims are exempt.  Tex. Est. Code §205.002.  Section 205.009 was added to state that references to “homestead” or “exempt property” means only a homestead or other exempt property that would be eligible to be set aside under Estates Code Section 353.051 if the estate was being administered.  This means that, in the case of a homestead, there must be a surviving spouse or minor child and, in the case of exempt   property, there must be a surviving spouse, minor child, unmarried adult child remaining with the family or adult incapacitated child.


The new Texas Uniform Disclaimer of Property Interests Act has new requirements for disclaimers and trustee notices.  Glenn Karisch's, Tom Featherston's and Julia Jonas's paper explaining the new act is available here, while Word and pdf versions of forms are available here.

Applications, reports and orders in guardianships

See the discussion of the three big changes in guardianships above for changes in applications, reports and orders in guardianships.

Physician’s certificate in guardianships

The physician’s certificate required before a guardianship may be created must state whether improvement is possible and, if so, when the proposed ward should be reevaluated.  Tex. Est. Code §1101.053.


The new Texas Uniform Disclaimer of Property Interests Act

The Texas Legislature enacted the Texas Uniform Disclaimer of Property Interests Act. Unless vetoed by Governor Abbott on or before June 21, 2015, the act will become effective on September 1, 2015.  Here is an updated version of the paper on the new disclaimer act by Glenn Karisch, Tom Featherston and Julia Jonas being presented June 10, 2015, to the Advanced Estate Planning and Probate Law Course in Dallas.  Here are forms drafted for use with the new disclaimer act.

More later. Enjoy!


Other trust law changes

The following is part of a series of posts on 2013 Texas probate, guardianship and trust law legislation.  The changes  became effective September 1, 2013.  For information on other changes, go to the 2013 Legislation page.

The big change affecting trust law in 2013 was decanting, which is discussed in a prior post.  Here are other miscellaneous trust law changes which became effective September 1, 2013:

  1. Creditor Protection for Trusts Appointed Back to Settlor.  Trust Code Section 112.035 was amended to grant spendthrift trust protection in cases where a beneficiary uses a power of appointment to appoint property in trust for the settlor.  In those cases, the trust assets enjoy spendthrift protection from the original settlor’s creditors.  Section 112.035(d)(2), (g) and (H). 
  2. Corporate Trustees May Purchase Insurance from Affiliates.  Trust Code Section 113.053(f) was amended to permit a corporate trustee to purchase insurance from an affiliate so long as the insurance product and premium are the same or similar to a product or premium offered by nonaffiliates.  The corporate trustee taking this action is expressly subject to fiduciary duties.

Problems with the Texas disclaimer laws

Texas's two disclaimer statutes (Texas Estates Code Chapter 122 and Texas Trust Code Section 112.010) have some problems.  Glenn Karisch and Julia Jonas of Austin presented a paper on Problems with Texas Disclaimer Laws and What to Do About Them at the Advanced Estate Planning and Probate Course in San Antonio June 11, 2014.  Here are links to the paper and the related Powerpoint slides (updated August 19, 2014).

The Real Estate, Probate and Trust Law Section has approved inclusion of the Texas Uniform Disclaimer of Property Interests Act in its 2015 legislative package.  A copy of the current draft of that legislation is attached to the paper.



The following is part of a series of posts on 2013 Texas probate, guardianship and trust law legislation.  The changes  became effective September 1, 2013.  For information on other changes, go to the 2013 Legislation page.

The modernization and liberalization of Texas trust law that began with enactment of the two UPIAs (the Uniform Prudent Investor Act and Uniform Principal and Income Act) in 2003 continued in 2013 with enactment of Texas’s first default decanting statute.  New Subchapter D of Chapter 112 of the Trust Code (Sections 112.071 – 112.087) permits a trustee to distribute trust principal “in further trust” in some cases.

Several states have preceded Texas in permitting trustees to move property from one trust to another even if the first trust does not expressly authorize the move.  Since it is always better to use an obscure word when one is available rather than a word that is easy to understand, these statutes are known as “decanting” statutes.  They permit the trustee to “decant” (pour) principal from one trust into another if the conditions stated in the statute are met.

Trustees have used decanting statutes in other states to fix problems in irrevocable trusts.  For example, the trustee of a trust with archaic administrative provisions may use the statute to move trust property into a new trust with modern administrative provisions.  Of course, it is not always clear that the problem is a “problem” at all, nor that the settlor of the trust would want it to be “fixed” in this way.

Under prior law, there was no default statutory decanting provision that applied if the trust instrument was silent, but the settlor could provide for decanting in the trust instrument.  Under the new law, the settlor may expressly provide for decanting or expressly prohibit decanting.  If the trust instrument is silent, then the new decanting rules apply.

The Texas statute distinguishes between “full discretion trusts” and “limited discretion trusts.” In a full discretion trust, the trustee’s power to distribute is not limited in any manner.  In limited discretion trusts, the power to distribute is limited in some way.  HEMS trusts – trusts permitting the trustee to distribute property for the beneficiary’s health, education, maintenance and support – are “limited discretion trusts” under the Texas statutes.

Under the decanting statute, the trustee may distribute principal from a full discretion trust to another trust for the benefit of one or more of the current beneficiaries of the first trust.  Also, the trustee may give a wholly discretionary beneficiary a broad power of appointment.  The justification for these actions is that, if the trustee could distribute the entire principal to a beneficiary, the trustee ought to be able to make that distribution in further trust with new rules for a beneficiary.

In order to decant from a limited discretion trust, the current beneficiaries of both trusts must be the same, the successor and remainder beneficiaries of both trusts must be the same, and the distribution standard of both trusts must be the same.  Due to these limitations, it is likely that the decanting power in limited discretion trusts will be useful only for administrative changes.

When decanting, the trustee must act in good faith, in accordance with the terms and purposes of the trust and in the interests of the beneficiaries.  In no case is the trustee deemed to have a duty to decant.  The power to decant is reduced to the extent it would cause any intended tax benefits to be lost.

The trustee may not use decanting to take away a beneficiary’s mandatory distribution right, materially impair the rights of any beneficiary, materially lessen the trustee’s fiduciary duty, decrease the trustee’s liability or exonerate the trustee, or eliminate another person’s power to remove the trustee.

Significantly, the trustee may not modify the applicable rule against perpetuities period, “unless expressly permitted by the terms of the first trust.”  This eliminates one of the key reasons why a trustee may wish to decant.  Still, this gives Texas estate planning attorneys a drafting tip:  in appropriate cases, include language in the trust instrument making it clear that the perpetuities period may be modified by decanting.  In most cases, there is very little downside to doing this, since most clients have not given a lot of thought to the vested remainder beneficiary rights of their unborn remote descendants when they create trusts.

The trustee must give 30 days’ written notice to current beneficiaries and presumptive remainder beneficiaries.  If a charity is a beneficiary, the notice also must be given to the attorney general.  If no one objects during the 30-day notice period, the trustee may decant without judicial approval, although the trustee may seek judicial approval if desired.  If a beneficiary other than the attorney general objects, the trustee may seek judicial approval but is not required to do so.  If the attorney general objects, the trustee must seek judicial approval before decanting.

The trustee may not decant without judicial approval solely to change the trustee compensation provisions.  However, the trustee may change compensation provisions without judicial approval if the change is in conjunction with other changes for which there are valid reasons, so long as the change does not provide for unreasonable compensation under Texas law.

Except as otherwise provided in the trust instrument, the decanting provisions apply to trusts existing or created on or after September 1, 2013.  Interestingly, the effective date provision states that the Legislature intends the decanting provisions “to be a codification of the common law of this state in effect before the effective date of this Act.”  The Legislature does not get to say what the law was before it enacts a statute, but this is an attempt to bolster the argument that there already existed a common law power to decant in Texas.