As usual, the biennial session of the Texas legislature requires attorneys to update forms in the estate planning, probate, guardianship and trust areas. Since most of the bills passed in 2015 became effective September 1, 2015, the new forms should be used beginning on that date.
Here is a collection of statutory changes which require form changes. Also, Bill Pargaman, chair of the Real Estate, Probate and Trust Law Section of the State Bar of Texas, has prepared this list of important changes to note on September 1, 2015.
The one-signature combination will and self-proving affidavit form has been changed to correct the tenses of the verbs. Tex. Est. Code §251.1045(a). The verb tenses also were corrected in the one-signature combination declaration of guardian and self-proving affidavit forms. Tex. Est. Code §§1104.154 and 1104.205.
The statutory Directive to Physicians and Family or Surrogates form was revised slightly, including changing the term “artificial nutrition and hydration” to “artificially administered nutrition and hydration.” Tex. Health and Safety Code §166.033.
The statutory Appointment of Agent for Disposition of Remains form (Tex. Health and Safety Code §711.002) was renamed the “Appointment for Dispositions of Remains” and revised extensively. It no longer includes blanks in the body of the document for the agent to sign to accept appointment. Rather, it provides that the instrument is valid without the signature of agents or successor agents. At the end of the form it provides a place for the agent to accept the appointment before acting as agent. The agent’s signature after the principal’s death makes the instrument legally sufficient. Also, it automatically revokes the authority of an ex-spouse on divorce.
Section 711.002 now includes the duly qualified executors and administrators of a decedent’s estate in the order of persons having the right to control the disposition of the decedent’s remains and provides that an executor or administrator is not personally liable for the reasonable cost of interment.
In the application to probate a will, the applicant must state the date of death, not the time of death. If the original will is not produced in court, the applicant is no longer required to state the age and marital status of each devisee or heir, but he or she must state whether or not the devisee or heir is an adult or minor. Tex. Est. Code §§256.052 and 256.054. If the application is to probate the will as a muniment of title, the applicant also must state the name, state of residence, and physical address where service can be had of the executor named in the will, as well as the name of each subscribing witness. The residence address of the executor and witnesses no longer needs to be included. Tex. Est. Code §257.051.
In the application for letters of administration, the applicant must state the date of death, not the time of death, and the applicant is no longer required to state the age and marital status of each heir, but he or she must state whether or not the heir is an adult or minor. Tex. Est. Code §§301.052.
In the application for determination of heirship, the applicant must state the date of death, not the time of death, and the applicant must state the physical address where service may be had of each heir and must state if each heir is an adult or a minor. Tex. Est. Code §202.005. Also, Sections 202.055 and 202.056 were amended to make it clear that a party may waive citation in an heirship proceeding and that no service is required on a party who enters and appearance in an heirship proceeding. The judgment declaring heirship no longer needs to state the places of residence of heirs; it only must state their names. Tex. Est. Code §202.201.
The independent executor or his or her attorney is required to sign and file an affidavit or certification confirming compliance with the notice to beneficiary requirements of Section 308.002. Now the affidavit or certification no longer is required to state the addresses of beneficiaries. Tex. Est. Code §308.004.
Previously a small estate affidavit had to include a list of all known estate assets and liabilities. Now that list must indicate which assets the applicant claims are exempt. Tex. Est. Code §205.002. Section 205.009 was added to state that references to “homestead” or “exempt property” means only a homestead or other exempt property that would be eligible to be set aside under Estates Code Section 353.051 if the estate was being administered. This means that, in the case of a homestead, there must be a surviving spouse or minor child and, in the case of exempt property, there must be a surviving spouse, minor child, unmarried adult child remaining with the family or adult incapacitated child.
The new Texas Uniform Disclaimer of Property Interests Act has new requirements for disclaimers and trustee notices. Glenn Karisch's, Tom Featherston's and Julia Jonas's paper explaining the new act is available here, while Word and pdf versions of forms are available here.
See the discussion of the three big changes in guardianships above for changes in applications, reports and orders in guardianships.
The physician’s certificate required before a guardianship may be created must state whether improvement is possible and, if so, when the proposed ward should be reevaluated. Tex. Est. Code §1101.053.