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: