2021 Legislative Update

There was very little legislation affecting probate, guardianship and trust law enacted in 2021. This is because only one of the bills promoted by the Real Estate, Probate and Trust Law Section of the State Bar of Texas (“REPTL”) passed – the guardianship bill. This was not due to any lack of effort on REPTL’s part. Rather, its legislation and a lot of other legislation got caught up in turmoil during the session about other issues.

By far the most significant legislation in this area which passed is a bill increasing the perpetuities period for trusts to 300 years.  This is discussed below.

1. The 300-Year Rule Against Perpetuities

1.1. The statutory change

HB 654 reorganizes Section 112.036 of the Trust Code. New subsection (c)(1) provides that an interest in a trust must vest “not later than 300 years after the effective date of the trust, if the effective date of the trust is on or after September 1, 2021.” The effective date is defined as the date the trust becomes irrevocable. Subsection (c)(2) provides that, if the effective date of the trust is before September 1, 2021, the old rule applies (interest must vest not later than 21 years after some life in being plus a period of gestation). However, subsection (d) provides that a pre-September 1, 2021, trust may be subject to the 300-year rule “if the trust instrument provides that an interest in the trust vests under the provisions of this section applicable to trusts on the date that the interest vests.”

New subsection (f) provides that “a settlor of a trust may not direct that a real property asset be retained or refuse that a real property asset may be sold for a period longer than 100 years.” This subsection was added to the bill late in the session and its purpose is unclear.

These provisions do not apply to charitable trusts, which may be perpetual.

1.2. Why is this significant?

For public policy reasons, noncharitable trusts in Texas have not been allowed to last forever. So the argument goes, tying up property for long periods of time could stymie commerce and growth because property would not be available for purchase by others. Therefore, a citizen of Texas could not create a trust which would last longer than the death of the last person in being at the trust’s creation plus 21 years plus a period of gestation (the “21 years after lives in being rule”). In most cases this meant that the maximum duration of a trust was 90 – 100 years. Rather than leaving the maximum trust period to vary based on lives in being, some states fixed the maximum term at 90 years or 100 years.  This provided clarity but did not materially extend the perpetuities period.

The adoption of the generation-skipping transfer tax (“GST”) and the ability to create GST-exempt trusts caused citizens and practitioners to seek ways to maximize the length of trusts.  If the property in a GST-exempt trust could avoid estate taxation in the second and third generations, why not continue it for the fourth, fifth, and sixth generations as well? Therefore, a demand arose for noncharitable trusts which did not have to end after 90 years or so.

A few states began to eliminate the rule against perpetuities entirely.  This was done largely to draw trust business to those states from the majority of states which had perpetuities limits. Some states did not eliminate the rule entirely but adopted extremely long perpetuities periods – 500 years, 700 years, etc.

Some trust offices at corporate trustees in Texas have long wished for Texas to join the states which have eliminated or greatly extended the rule against perpetuities. They saw trust business going to out-of-state institutions as Texans desiring extremely long-term trusts created those trusts with out-of-state corporate trustees so that they would be subject to other states’ laws.

There have been two big stumbling blocks for extending the perpetuities period in Texas.  First, some practitioners and charities opposed the extension on policy grounds. Second, the Texas constitution prohibits perpetuities, so eliminating the rule against perpetuities would have required a constitutional amendment.

In 2021, the proponents finally overcame opposition and were able to pass a bill. In an effort to meet the constitutional restriction, the drafters opted for setting the perpetuities limit to 300 years. The argument: “It isn’t perpetual – it has to end in 300 years – so it does not violate the constitution.”

This opens the door for a significant number of new GST-exempt trusts to permit ultra-long terms. The author assumes that a majority of GST-exempt trusts now will at least permit that trust (or trusts created out of the original trust as the generations pass) to last until the new perpetuities period, even if they contain provisions which give each generation a chance to end the trust.

1.3. Is it constitutional?

Article I, Section 26 of the Texas Constitution provides:

Perpetuities and monopolies are contrary to the genius of a free government, and shall never be allowed, nor shall the law of primogeniture or entailments ever be in force in this State.

The rule against perpetuities was pretty well defined and understood in 1876 when this constitutional provision was adopted, and it meant the 21 years after lives in being rule.  In 1984, the legislature included the 21 years after lives in being rule in Section 112.036 in the new Trust Code and it has been there ever since.

There is little doubt that the drafters of the 1876 constitution had the 21 years after lives in being rule in mind when this provision was added.  That’s what “perpetuities” meant back then. While the legislature may have some leeway in setting the maximum term – for example, setting it at 90 years instead of the uncertain period caused by the need to measure lives in being – it is not clear that this leeway permits more than tripling the perpetuities period.

For the best analysis of the constitutionality of the new statute, see Bill Pargaman’s 2021 legislative update or in the materials from the State Bar’s 2021 Advanced Estate Planning and Probate Course.  Bill’s conclusion on the constitutional issue (not on the merits of an extended perpetuities period):  a constitutional amendment probably is required to extend the perpetuities period to 300 years, so the new statute may be unconstitutional.

1.4. Should I draft trusts using the new 300-year perpetuities period?

What is the consequence of creating a trust in reliance on the 300-year rule and later learning that the Texas Supreme Court declares this statute unconstitutional?  The trust probably still will be valid, but it would terminate upon the running of the traditional perpetuities period. See Tex. Trust Code §112.036(e) and Tex. Property Code §5.043, which permit reformation of interests which otherwise violate the rule.

Therefore, if the client wants to continue the trust for multiple generations, there seems to be no reason not to utilize the new rule – the new trust will not fail; at worst it can be reformed. However, if perpetuities is a driving force for the client, not just a side benefit, then it makes sense to make the trust subject to another state’s laws where the Texas constitutional provision does not pose a threat.

1.5. Can I make the 300-year perpetuities period apply to my existing trust?

Subsection (d) provides that an interest in a pre-9/1/21 trust may be subject to the 300-year perpetuities period “if the instrument provides that an interest in the trust vests under the provisions of this section [Tex. Trust Code §112.036] applicable to trusts on the date that the interest vests.” A lot of attorneys, including the author, over the years have tried to draft provisions in trusts which would take advantage of a change in the rule against perpetuities, but the author doubts that many thought to refer to this Trust Code section and to provide that the interest vests under the law in effect “on the date that the interest vests.” Someone must have used this approach or the drafters would not have included this.  The author has used a provision which made it clear that the settlor wanted to take advantage of any later extension of the perpetuities period by any means possible, but that provision did not include the specific language from subsection (d). Perhaps the clear intention would be enough for a court to construe compliance with this subsection.

As a practical matter, though, it seems unlikely that many pre-9/1/21 trusts will be able to utilize the new 300-year period. Note, however, that the 300-year rule applies to trusts which become irrevocable on or after September 1, 2021, so existing trusts which are revocable can be amended to take advantage of the new rule.

What about a judicial modification of a trust to make the new perpetuities period apply?  This is likely to create GST problems if the effect of the change is to extend the date of vesting beyond its original date. Also, it may be difficult to get an attorney ad litem or guardian ad litem for unascertained beneficiaries to agree to a change which causes the trust property not to vest in the parties he or she represents. On the other hand, if the trust included a provision stating the settlor’s clear intent to take advantage of an extended perpetuities period, it would be easier to meet the statutory standards for modification in Texas Trust Code §112.054.

1.6.  What about trusts with real estate – does the 300-year rule apply?

Tex. Trust Code §112.036(f) provides that “a settlor may not direct that a real property asset be retained or refuse that a real property asset may be sold for a period longer than 100 years.” Does this mean that trusts cannot utilize the new 300-year perpetuities period if the trust holds real estate?  Almost certainty not. While it is unclear why this provision was added to the statute, so long as the trust instrument does not require the trustee to hold a real estate interest for more than 100 years or prohibit the sale of a real estate interest for more than 100 years, the new 300-year perpetuities period should apply. In other words, as long as the trustee has discretion to sell or retain a real property interest and is not compelled to retain the interest, subsection (f) should not apply.

2. Disclaimers and Child Support Obligors

Section 240.151(g) of the Property Code provides that a disclaimer by a child support obligor meeting that section’s requirements is barred as to disclaimed property that could be applied to satisfy the disclaimant’s child support obligations.  This section remained unchanged and by itself is sufficient to prevent those child support obligors from avoiding their obligations by disclaiming.

That was not good enough for the proponents of SB 286, which adds subsection (e) to Section 240.009 of the Property Code to require that all disclaimers by individuals must contain a statement under penalty of perjury regarding whether the disclaimant is a child support obligor subject to Section 240.151(g).

As originally filed, this could have been a disaster for disclaimer practice. First, as originally filed each disclaimer would have to include a “sworn statement.” This would have required every disclaimer by an individual – regardless of whether or not the disclaimant was a child support obligor – to have the disclaimer notarized or to include an unsworn declaration. Fortunately, the proponents accepted a change that provides that the statement must be made under “penalties of perjury,” sidestepping the notarization issue.

Still, without a change the new subsection would have required every disclaimer to include a statement which would be wholly unnecessary for the vast majority of disclaimers, and it would have jeopardized the effectiveness of a disclaimer which failed to include the statement. Fortunately, the bill was amended to add this sentence to subsection (e): “An individual’s failure to include the statement does not invalidate a disclaimer if the disclaimer is not barred under Section 240.151(g).”

How does this change disclaimer practice? 

• Proper practice is to comply with the statute by making every disclaimer by an individual contain this statement: “Under penalty of perjury, I declare that I am not a child support obligor whose disclaimer is barred under Texas Property Code §240.151(g).”

• However, failure to include the statement does not render the disclaimer ineffective unless the disclaimant is in fact a child support obligor.

• Disclaimers still do not need to be notarized unless a real property interest is involved. See Texas Prop. Code §240.111.

3. Guardianship Law Changes

The REPTL guardianship bill (SB 626) was the only REPTL bill that passed. None of the changes it makes are earth-shattering, but there are numerous improvements and clean-ups.  Also, SB 615, which was supported by the statutory probate judges, passed and included numerous guardianship law changes.

Change to application requirements. SB 615 and SB 626 amended Estates Code §1101.001 to require that applications for guardianship (a) include the applicant’s former name, if any; and (b) provide a detailed description of the proposed ward’s liquid and illiquid assets, including real estate.

Unnotarized declaration permitted as oath of guardian. SB 626 makes several changes to Chapter 1105 of the Estates Code to permit a guardian to make an unnotarized declaration instead of taking a (notarized) oath in order to qualify as guardian.

All attorneys in guardianships must be certified. Estates Code §1054.201 previously required the attorney representing the applicant for a guardianship and all court-appointed attorneys in a guardianship proceeding to take a certification course.  SB 626 amends this section to require an attorney representing any party in a guardianship proceeding to be certified. The section also was amended to permit an uncertified attorney to commence representation of a person’s interest and file an appearance before completing the certification course, but the course must be completed within 14 days of filing the appearance and before filing any substantive motion in the proceeding.

Procedural changes for sale of real estate. SB 626 made several changes to Chapter 1158 regarding the sale of real property in a guardianship. Public sales of real estate must be made at a public auction subject to rules related to the time and place of the auction. There are changes regarding contracts for private sale and reporting sales to the court.

Temporary guardianship changes. SB 615 and SB 626 make several changes to the procedure for temporary guardians, including a more detailed requirement for final accounts.

Guardianship management trust changes. SB 626 includes a new notice provision and trust termination provisions for guardianship management trusts established under Chapter 1301 of the Estates Code.

Certain county courts at law may hear trust matters. SB 626 amended Estates Code §1021.001 to permit county courts at law in counties with no statutory probate court to hear a matter regarding the interpretation or administration of a trust of which the ward is a beneficiary. This parallels the jurisdiction of such courts in a decedent’s estate proceeding under Estates Code §31.002.

Dealing with an incapacitated guardian. HB 1296 and HB 3394 amended Section 1203.052 of the Estates Code to establish a procedure in the event there is probable cause to believe that a guardian is an incapacitated person.

4. Other Changes

We really mean it – driver’s license and social security numbers in all proceedings. SB 615 (supported by the statutory probate judges) amends Section 30.014 of the Civil Practices and Remedies Code to make it clear that each party to a civil action, including a probate or guardianship proceeding as well as any action in a statutory probate court, must include the last three digits of the party’s driver’s license number and the last three digits of the party’s social security number in the party’s initial pleading.

Serving out-of-state distributees in heirship proceeding. Estates Code §202.054 permits a court to require personal service on distributees named in an application for determination of heirship. For distributees outside Texas, the section was amended to permit any disinterested person to serve the citation.

Recording a non-English foreign will. Estates Code §503.001 provides an inexpensive way to pass title to Texas real estate under the terms of a will probated in another state or country.  An authenticated copy of the will and the order admitting it to probate in the foreign jurisdiction may be filed in the real property records without further proof or authentication. In 2021 Section 503.002 was amended to permit the recording of a non-English-language will in the real property records under Section 503.001, so long as a correct English language translation also is recorded.

Financial abuse of the elderly is a crime.  HB 1156 adds Section 32.55 to the Penal Code, making it an offense to knowingly engage in the financial abuse of an elderly individual. This includes financial exploitation by a fiduciary. The offense ranges from a Class A misdemeanor to a first degree felony, depending on the value of the property taken or appropriated. SB 109 amends Section 32.46 of the Penal Code, which makes it a crime to fraudulently secure the execution of a document affecting property or service or the pecuniary interest of any person.  The bill adds the concept of “effective consent” and provides that consent is not effective if it is given by a person who by reason of youth, mental disease or defect, or intoxication is unable to make reasonable property dispositions or given by a person who by reason of advanced age has diminished capacity to make informed and rational decisions about the reasonable disposition of property.

Expedited death certificates. HB 1011 adds Section 193.005 to the Health and Safety Code to permit an authorized person to request an expedited copy of a death certificate from certain counties if (a) expedited completion of the death certificate is needed for religious reasons and (b) the remains are to be interred in a foreign country. If this applies, the death certificate must be provided within 48 hours unless an inquest will be conducted.

The Karisch Law Firm is growing

We at the Karisch Law Firm, PLLC are pleased to announce that Julia Jonas has joined the firm.  Our newest attorney will be working with clients on estate planning, probate, and trust administration projects.  Julia grew up in Austin and is a graduate of the Austin Waldorf School. She was an English major at Carleton College in Northfield, Minnesota, before attending the University of Texas School of Law.  Julia is Certified in Estate Planning and Probate Law by the Texas Board of Legal Specialization.  She is licensed to practice law in Texas and Washington.  Before joining the Karisch Law Firm, Julia practiced law at Osborne, Helman, Knebel & Scott, LLP.  As Glenn Karisch’s daughter, it is hoped that she will be in a position to cull the worst of Glenn's dad jokes before they show up in future CLE presentations.

Learn more about Julia and the firm.

2019 Legislative changes

2019 Legislation

The 86th Texas Legislature was a fairly quiet session for probate, trust and guardianship legislation.  For a narrative summary of the legislation, see Glenn Karisch's 2019 Texas Legislative Update.  For a more comprehensive report, see Bill Pargaman's 2019 Texas Estate and Trust Legislative Update and the related Statutory Language Supplement.

2017 Legislation

The 85th Texas Legislature made significant changes affecting probate, trust and guardianship law.  Most bills become effective September 1, 2017, including a substantial rewriting of the durable power of attorney act.

Here is Glenn Karisch's 2017 Legislative Update, which describes the key changes and some of the issues they raise.

For a comprehensive report on 2017 changes, including the full text of most of the changes, see Bill Pargaman's legislative update.

Several disability planning forms changed, including the statutory durable power of attorney form and the medical power of attorney form.   

• Here are the statutory forms which changed in Word and pdf formats.

• Here are the current versions of all of the disability planning forms for attorney use.

• Here are the current versions of all of the disability planning forms for nonattorney use. These are important legal documents. Consumers are strongly encouraged to seek the advice of an attorney before using them.

 Here are some highlights of the 2017 changes:

Durable powers of attorney

For several sessions the Real Estate, Probate and Trust Law Section of the State Bar of Texas ("REPTL") has encouraged the legislature to make significant changes to the statutes governing durable powers of attorney for property.  Finally, HB 1974 has passed.  Many of these changes are derived from the Uniform Power of Attorney Act. While some of its provisions were watered down to address concerns expressed by other groups, the bill makes several changes, including: 

• Making acceptance of a power of attorney by a third party mandatory, although there are many limitations and exceptions to this. (Estates Code Sections 751.201 -- 751.213)

• Changing the statutory durable power of attorney form, meaning that attorneys will need to update their forms for use beginning September 1, 2017. (Estates Code Section 752.051)

• Defining when and how an agent accepts appointment. This determines when he or she owes fiduciary duties as agent. (Estates Code Section 751.022)

• Permitting the principal to delegate to the agent or another person the authority to name successor agents. (Estates Code Section 751.023)

• Providing that the agent is entitled to compensation and reimbursement of expenses unless the power provides otherwise. (Estates Code Section 751.024)

• Allowing opt-in (non-default) powers to change, amend or revoke a trust, to make a gift, to create or change survivorship rights, to create or change beneficiary designations and to delegate authority. (Estates Code Section 751.031)

• Imposing a duty to preserve the principal's estate plan. (Estates Code Section 751.122)

• Stating who has standing to bring an action regarding a power of attorney. Persons with standing include the principal, the agent, a guardian of the principal, a person named as a beneficiary to receive property on the principal's death, a governmental agency with authority to protect the principal, or another person who demonstrates to the court sufficient interest in the principal's welfare or estate.

Medical Powers of Attorney

HB 995 is REPTL's medical power of attorney bill.  It revokes the authority of a spouse under a medical power of attorney if the marriage is dissolved and makes the disclosure statement a part of the medical power of attorney form itself.  The statutory form must be used -- REPTL's attempt to make the form permissive rather than mandatory was rejected due to opposition from the medical industry. While the new statutory durable power of attorney form is effective September 1, 2017, the new medical power of attorney form must be used beginning January 1, 2018.

Decedents' Estates

HB 2271 is REPTL's decedents' estates bill.  As usual, it tinkers with the Estates Code provisions dealing with the estate of a deceased person.  A few of the changes are: 

• Setting the deadline for modifying or reforming a will to four years following admission to probate. (Estates Code Section 255.451)

• Increasing the limit for small estate affidavit proceedings from $50,000 to $75,000. (Estates Code Section 205.001)

• Giving independent executors the default power to make non-pro-rata distributions. (Estates Code Section 405.0015)

Trust Code

SB 617 is REPTL's bill making changes to the Trust Code.  Among the changes are: 

• Broadening the authority of trustees to decant (transfer principal from one trust to another) by narrowing the definition of "limited discretion" trusts. Under the new law, if a trust is not limited by an ascertainable stanard (such as health, education, maintenance or support) or does not contain a mandatory prinicpal distribution provision, it will be considered a "full discretion" trust. (Trust Code Section 112.071)

• Permitting reformation of trust in certain cases, including scrivener's error. (Trust Code Section 112.054)

Digital Assets

 SB 1193 enacts the Texas Revised Uniform Fiduciary Access to Digital Assets Act.  This act attempts to balance the interests of fiduciaries with the interests of online providers.  It gives Internet users at least some ability to give their agents or exdcutors authority to deal with digital assets.

Guardianships

As usual, there were a number of bills making changes affecting guardianships, including REPTL's SB 39 (making a number of changes) and SB 511 (permitting a declaration of guardian to be executed before a notary in lieu of two witnesses if the declaration does not disqualify anyone from serving as guardian). 

Legislative changes take effect September 1, 2017

Most of the changes made to the Estates Code, Trust Code and related statutes by the 85th Texas Legislature became effective September 1, 2017. See the 2017 Legislation page to learn about these changes, including links to legislative updates and to downloadable forms.

New disability planning forms for use beginning September 1, 2017, except for one...

The Texas Legislature changed four disability planning forms and added a related form.  With one exception, these new forms should be used beginning September 1, 2017.

There were major changes to the durable power of attorney act.  This led to changes in the statutory durable power of attorney form and to the adoption of a new certification form for agents.

There were minor changes to the declaration of guardian form for adults and to the declaration for mental health treatment.  These changes make it unnecessary to use two witnesses if the declaration is acknowledged before a notary public, except that the declaration of guardian still requires two witnesses if it disqualifies anyone from serving as guardian.

All of the above forms are for use beginning September 1.  The exception is the medical power of attorney form.  It was revised to incorporate the disclosure statement in the form itself, eliminating the need for a separate disclosure statement.  The new form is effective January 1, 2018.  Its use is mandatory, so take care to use the correct form.

For more information, see Glenn Karisch's 2017 Legislative Update.

• Here are the statutory forms which changed in Word and pdf formats.

• Here are the current versions of all of the disability planning forms for attorney use.

• Here are the current versions of all of the disability planning forms for nonattorney use.  These are important legal documents.  Consumers are strongly encouraged to seek the advice of an attorney before using them. 

Trust modification paper now addresses 2017 legislative changes

Glenn Karisch has updated his "Fixing or Killing Off Broken Trusts" paper to address changes to the Texas Trust Code made in 2017 by the Texas legislature.  These changes permit reformation of trusts and liberalized decanting in Texas and are effective September 1, 2017.

The updated paper is available here.

2017 Texas legislative changes

The 85th Regular Session of the Texas Legislature ends May 29, 2017.  Go to the 2017 Legislation page for links to key bills, descriptions of changes and a link to Bill Pargaman's comprehensive legislative update.  Glenn Karisch's legislative update will be posted when it is available.

Fixing or killing off broken trusts

What do you do if a trust drafted 20 years ago no longer works?  A beneficiary may think her trust "doesn't work" because she isn't getting as much money as she wants from the trustee.  That trust may be working precisely the way its creator or settlor intended, even if the beneficiary is unhappy.  But what if the trust provisions impede the administration of the trust?  What if the trust will disqualify the beneficiary from receiving governmental benefits like Medicaid unless its terms are changed?

It has become increasingly apparent that there must be ways to modify or terminate irrevocable trusts in certain situations.  Court decisions and statutes provide ways to make changes to trust terms or terminate the trust if appropriate.

Fixing or Killing Off Broken Trusts is Glenn Karisch's paper on modifying and terminating trusts in Texas.  It was presented to the State Bar's Advanced Estate Planning and Probate Law Course on June 23, 2016.  It discusses judicial and nonjudicial modifications and terminations and rescission of trusts.  Some techniques are tried and true, while others (like decanting) are just beginning to be widely used.

The paper also addresses several thorny issues, including the possible duty of a trustee to seek judicial modification or termination of a trust if certain facts exist.  Finally, it offers drafting suggestions intended to avoid the need for court action to change trusts in the future.

The latest version of the paper is available here. The slides used at the June 23, 2016 presentation are available here.

Updated multiple party accounts paper now available

Glenn Karisch's paper on multiple party accounts and other non-probate assets has been updated.  It now refers to Estates Code sections rather than Probate Code sections.  It also addresses the 2013 legislative change regarding enforceability of choice of law provisions in account agreements and the 2015 legislative change regarding disclosures about account types and terms to customers of financial institutions.

It is available here.

2015 Legislation

The 84th Texas Legislature passed many bills affecting probate, trust and guardianship law.  Most become effective September 1, 2015.

For a comprehensive report on bills that passed as well as the full text of Estates Code and Trust Code changes, see Bill Pargaman's legislative update.

For a more selective review of legislation, see Glenn Karisch's legislative update.

Changes to forms effective September 1, 2015

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

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

One-signature combo self-proving affidavit forms

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

Directive to Physicians and Family or Surrogates

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

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

Appointment for Disposition of Remains

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

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

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

Application to probate will

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

Application for letters of administration

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

Determination of heirship

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

Affidavit or certificate of compliance with notice to beneficiaries requirement

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

Small estate affidavits

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

Disclaimers

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

Applications, reports and orders in guardianships

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

Physician’s certificate in guardianships

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

The new Texas Uniform Disclaimer of Property Interests Act

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

More later. Enjoy!