Thursday, August 29, 2013
- Proceedings to Probate Wills. The application to probate a will no longer must list the residence address of the applicant. Rather, the state of residence and a physical address where service can be had must be stated. Tex. Est. Code Sec. 256.052(a). Only the name of the subscribing witness must be stated – the address no longer is required. Sec. 256.052(a). In 2011, Section 84 of the Probate Code was amended to make it easier to establish that a will executed in another jurisdiction is self-proved if it was eligible to be treated as a self-proved will under the law of the state of execution. In addition, the 2011 change created a safe harbor for self-proved wills meeting the Uniform Probate Code requirements. Tex. Prob. Code Sec. 84(a)(2). That portion of Section 84 was not expressly limited to wills executed outside Texas, making it possible to argue that a Texas-executed will could be made self-proved by complying with Section 84(a)(2) rather than the more orthodox Section 59. The successor to Section 84(a)(2) has been amended to make it clear that the UPC-based safe harbor only applies to wills executed outside Texas. Tex. Est. Code Sec. 256.152(c).
- Inventories and Affidavits in Lieu of Inventory. In 2011, the Legislature began permitting independent executors of estates with no debts (other than secured debts, taxes and administrative expenses) to file an affidavit in lieu of an inventory. This removed a significant disadvantage of will-based plans, since public disclosure of assets is avoided. Some courts refused to allow affidavits if the will contained the language from Probate Code Section 145(a) enabling independent administration because that language referred to the “return of an inventory….” Section 309.056(b) has been amended to permit an affidavit in lieu of inventory if the other requirements are met notwithstanding a contrary provision in the will that does not specifically prohibit the filing of the affidavit. Subsection (d) was added to Section 309.056 to provide that the independent executor is not liable for choosing to file an inventory or an affidavit in lieu of inventory. Section 309.057 was added to permit the court to fine the personal representative up to $1,000 for failing to file an inventory or affidavit in lieu of inventory after being cited to appear and failing to show good cause. Section 309.103 was amended to clarify that the court retains jurisdiction of a probate estate if an interested person who considered the affidavit in lieu of inventory filed by an independent executor to be erroneous or unjust files a written complaint.
- Homestead, Exempt Property and Family Allowance. An amendment to Section 102.004 of the Estates Code clarifies that the homestead of a decedent is not liable for the payment of the estate’s debts (other than mortgage debt or taxes due on the homestead) if the decedent was survived by a spouse or a minor child. Previously there was confusion about whether an unmarried adult child entitled the estate to homestead exemption or if the spouse or minor child had to be occupying the homestead in order for the exemption to arise. Now it is clear that an unmarried adult child does not trigger homestead exemption and that the exemption is not dependent upon the occupancy of the surviving spouse or minor child. The allowance in lieu of a homestead was raised from $15,000 to $45,000 and the allowance in lieu of other exempt property was increased from $5,000 to $30,000. Tex. Est. Code Sec. 353.053. In 2011, the family allowance was extended to the decedent’s adult incapacitated child. This session the Legislature clarified that the family allowance for an adult incapacitated child is not made if, at the time of the decedent’s death, the decedent was not supporting the adult incapacitated child. Tex. Est. Code Sec. 353.101(d)(3).
- Heirship Proceedings. An heirship proceeding may be brought at any time after the decedent’s death. There is no four-year limitations period as in the case of probating a will. Tex. Est. Code Sec. 202.0025. Among other possible applicants, any creditor may bring an heirship proceeding, not just a secured creditor. Tex. Est. Code Sec. 202.004. An attorney ad litem representing the interests of heirs whose names or locations are unknown is required (see the discussion of ad litems above). The applicant for an heirship is required to file an affidavit of service of citation before the court may act on the application. Tex. Est. Code Sec. 202.057. Testimony in an heirship proceeding must be taken in open court or by deposition, and the court may require it to be reduced to writing. Tex. Est. Code Sec. 202.151.
- Section 294(d) Notices (now Section 308.054 Notices). The deadline for responding to a permissive notice to an unsecured creditor has changed from “within four months” to “before the 121st day.” Tex. Est. Code Sec. 308.054(b). This is a big deal because the form of the notice must contain the 121st day language in order to be effective.
- Accounting and Distribution by Independent Executor. There was some question under prior law if Section 149B(b) required the court to order property incapable of division to be sold or if the court could order distribution of the property in undivided interests. The successor to Section 149B (Estates Code Section 405.001(b)) was amended to make it clear that the court may choose to order the sale of property incapable of division or to order it distributed in undivided interests.
- Disclaimers by Child Support Obligors. A disclaimer now must state that the disclaimant is not a child support obligor, or if he or she is a child support obligor, that he or she owes no child support arrearages. Tex. Est. Code Sec. 122.107. If the disclaimant owes child support arrearages, the disclaimer is not effective to avoid that obligation.
- Public Probate Administrators. With a county commissioners’ court approval (and, therefore, with county funding), a statutory probate judge may appoint a “public probate administrator” who has various rights, duties and standing. Chapter 455 of the Estates Code.
Glenn Karisch | Comments Off |