Enacted-Effective 9/1/11: HB 3573 -- Disclosures about and eligibility of members of charity's board

Caption: Relating to limiting the disclosure of certain information regarding certain charitable organizations, trusts, private foundations, and grant-making organizations.
Author: King, Susan
Bill History
Bill Text

Relevance:  This bill prohibits a charity from disclosing certain information about officers, board members, trustees and members of the charity unless those persons give written consent to the disclosure.  It also prohibits a governmental entity from prohibiting an individual's service on a charity's board or as an officer of a charity based on the individial's donor status or familial relationship to a donor. The bill provides that it does not limit the authority of the attorney general to investigate or enforce laws in accordance with the attorney general's duty to protect the public interest.

Enacted-Effective 9/1/11: SB 1810 -- Inherited IRAs exempt from creditors

Caption: Relating to the exemption of certain retirement accounts from access by creditors.
Author: Carona
Bill History
Bill Text

Relevance:  This bill would make it clear that inherited IRAs are exempt from creditors' claims.  There are cases nationwide which have gone both ways on this issue. 

Enacted-Effective 9/1/11: HB 274 -- Civil trial issues

Caption: Relating to the reform of certain remedies and procedures in civil actions and family law matters.
Author: Creighton, and others
Bill History
Bill Text

The “loser pays” bill signed into law by Governor Perry may impact probate and guardianship practice in Texas.  The Legislature stripped many of the more controversial provisions from the final version of HB 274.  Earlier versions of the bill could have more significantly (and adversely) impacted Texas probate, guardianship and trust law practice.  The biggest problem for probate and guardianship lawyers in the final version is the potential for new Supreme Court rules that alter the way probate and guardianship actions are handled.

Under amendments to Section 22.004 of the Government Code, the Supreme Court must adopt rules that “apply to civil actions in district courts, county courts at law, and statutory probate courts in which the amount in controversy does not exceed $100,000.”  The rules “shall address the need for lowering discovery costs in these actions and the procedure for ensuring that these actions will be expedited in the civil justice system.”  While the Court is not permitted to adopt rules which conflict with the Family Code or the Property Code, there is no carve-out for conflicts with the Probate Code.  (The Property Code exception should apply in trust law cases since the Trust Code is part of the Property Code.)

The bill itself does not impose these new rules. Rather, it directs the Supreme Court to adopt rules.  Hopefully the Court will consider some if the unique aspects of probate and guardianship actions when making its rules. Still, there is a potential problem in these cases:

• Claims Practice.  The Probate Code already has an expedited way to handle claims against probate estates.  Most of those claims are under $100,000.  Will the rules provide a different way to handle these claims?  Will the rules be mandatory?

• Administrative Matters Not Involving an Amount in Controversy.  It seems clear that the new rulemaking authority was meant to address litigation seeking damages.  The statutory language is not limited, however.  There are other statutes addressing specialized procedures in litigation seeking damages, such as Chapter 42 of the Civil Practices and Remedies Code.  These statutes expressly limit their application to claims for monetary relief.  See, for example, Section 42.002(a) of the Civil Practices and Remedies Code. What happens if a party in an action to remove an independent executor under Section 149C of the Probate Code elects to follow a new procedure enabled by rules implemented under HB 274?

There are other provisions of HB 274 which may impact probate, guardianship and trust practice:

 

• The bill amends Section 51.014 of the Civil Practices and Remedies Code to make it easier to appeal interlocutory orders.

 

• The bill amends Section 42.001 of the Civil Practices and Remedies Code to add deposition costs to the list of litigation costs which the loser may be required to pay if a settlement offer is rejected under Section 42.003.

 

The bill becomes law September 1, 2011.

Enacted-Effective 9/1/11: SB 1368 -- Authority of co-owner to encumber homestead property without consent of other co-owners

Caption: Relating to the authority of a co-owner of residential property to encumber the property.
Author: West
Bill History
Bill Text

Relevance:  This bill allows a co-owner of residential property claimed as the co-owner's homestead to place a lien on the property in certain circumstances.  The debt secured by the lien would be solely the obligation of the co-owner, but other co-owners could not repudiate or disaffirm the lien. This bill is intended to permit a co-owner who has paid all of the taxes on a property to create a lien to improve or preserve that property without the consent of other co-owners. This could come in handy in the case of property passing by intestacy to multiple heirs where only one heir occupies the property. 

Enacted-Effective 9/1/11: HB 2722 -- State Medicaid program is payor of last resort

Caption: Relating to the state Medicaid program as the payor of last resort
Author: Perry
Bill History
Bill Text

Relevance:  This bill requires the executive commissioner of the Texas Health and Human Services Commission to adopt rules to ensure that, to the extent allowed by federal law, the state Medicaid system is the payor of last resort and provides reimbursement only if, and to the extent, that other public or private sources of payment are not available.

Enacted-Effective 9/1/11: HB 2759 -- Recodification of guardianship statutes

Caption: Relating to the nonsubstantive revision of provisions of the Texas Probate Code relating to durable powers of attorney, guardianships, and other related proceedings and alternatives, and the redesignation of certain other provisions of the Texas Probate Code, including conforming amendments and repeals.
Author: Hartnett
Bill History
Bill Text

Relevance: This is the recodification of the guardianship portion of the Probate Code, as well as the power of attorney portion of the Probate Code, into the new Estates Code, to be effective January 1, 2014. This is intended as a nonsubstantive revision of those statutes and was prepared by the Legislative Council. 

Enacted-Effective 9/1/11: SB 1303 -- Changes to 2009 Estates Code recodification (decedents' estates)

Caption: Relating to nonsubstantive additions to and corrections in enacted codes, to the nonsubstantive codification or disposition of various laws omitted from enacted codes, and to conforming codifications enacted by the 81st Legislature to other Acts of that legislature.
Author: West
Bill History
Bill Text

Relevance: This is a catch-all bill prepared by the Legislative Council to make corrections to various codes and to make conforming changes caused by other 2009 legislation. For probate attorneys, the most significant provisions amend those portions of the new Estates Code that reflect changes to the old Probate Code made in 2009. These changes are supposed to be nonsubstantive. The new Estates Code becomes effective January 1, 2014. 

Enacted-Effective 9/1/11: HB 2492 -- Adding adult incapacitated children to family allowance, etc.

Caption: Relating to the family allowance, treatment of exempt property, and an allowance in lieu of exempt property in the administration of a decedent's estate.
Author: Naishtat
Bill History
Bill Text

Relevance:  HB 2492 would amend 12 sections of the Probate Code to add adult incapacitated children to the list of persons who may benefit from the family allowance, exempt property and allowance in lieu of exempt property.

Enacted-Effective 9/1/11: SB 1198 -- REPTL decedents' estates bill

Caption: Relating to decedents' estates.
Author: Rodriguez
Bill History
Bill Text

Relevance:  This omnibus bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It makes multiple changes to the Texas Probate Code affecting the estates of decedents. It also makes parallel changes to the new Estates Code. Changes include:

• An option requiring only one signature of the testator and the witnesses on the will and self-proving affidavit (the old two-signature method still would be permitted). (Section 59)

• Changes to the independent administration provisions of the Probate Code in anticipation of enactment of the new Estates Code, including addressing technical issues like the power of sale and creditor claims. (Sections 145 -- 151)

• In independent administrations where there are no unpaid creditors, permitting the independent executor to deliver the inventory to the beneficiaries while filing an affidavit, not the inventory, with the court. (Section 250)

• Confirming that a right of survivorship will not be presumed from joint ownership or joint tenancy of multi-party accounts and community property, legislatively overruling part of Holmes v. Beatty, saying "a survivorship agreement will not be inferred from the mere fact that the account is a joint account or that the account is designated JT TEN, Joint Tenancy, joint or other similar abbreviation." (Sections 439 and 452)

See "REPTL decedents' estates bill is worth a closer look" on texasprobate.com.

See "REPTL bill tweaks independent administration" on texasprobate.com. 

Enacted-Effective 9/1/11: SB 1197 -- REPTL trust bill

Caption: Relating to trusts.
Author: Rodriguez
Bill History
Bill Text

Relevance: This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas and makes several minor or technical changes to the Texas Trust Code.  It:

• Contains a special extension of the disclaimer deadline to match the extension in the 2010 tax law. (Section 112.010)

• Makes a slight change in the forfeiture (in terrorem) statute -- "just cause" must have existed for bringing the action, not "probable cause." (Section 112.038)

• Allows waiver of notice of nonjudicial divisions and combinations of trusts. (Section 112.057)

• Makes clear that a county court at law exercising the jurisdiction over a trust given it by Section 4B of the Probate Code has trust jurisdiction. (Section 115.001)

• Makes venue in a trust case proper in a court in which an estate is pending. (Section 115.002)

• Removes a beneficiary whose interest has been distributed, extinguished, terminated or paid from the list of necessary parties to trust litigation. (Section 115.011)

• Makes a couple of technical changes to the Texas Uniform Principal and Income Act (Sections 116.005 and 116.205)

See "REPTL bills would make changes to trusts, guardianships and powers of attorney" on texasprobate.com. 

Enacted-Effective 9/1/11: SB 748 -- Effect of death or divorce on LLC interests

Caption: Relating to business entities and associations.
Author: Carona
Bill History
Bill Text

Relevance:  This bill enacts new Section 101.1115 of the Business Organizations Code to provide that, upon the death of a member or a member's spouse or on the divorce of a member, the person receiving an ownership interest in an limited liability company is only an assignee, not a full member.  Assignees are entitled to economic benefits but not voting rights. 

Enacted-Effective 9/1/11: SB 481 -- Removal/reinstatement of guardian

Caption:  Relating to the removal of a guardian of an incapacitated person ordered by a court.
Author:  Harris
Bill History
Bill Text 

Relevance:  Requires notice to a removed guardian and a hearing on an application for reinstatement as guaridian within 60 days of the date of removal.

Enacted-Effective 9/1/11: SB 587 -- AG actions involving charitable trusts

Caption: Relating to jurisdiction in certain proceedings brought by the attorney general with respect to charitable trusts.
Author: Uresti
Bill History
Bill Text 

Relevance:  Gives the statutory probate court of Travis County concurrent jurisdiction with another court exercising probate jurisdiction under Probate Code Section 4A in a proceeding brought by the attorney general alleging breach of fiduciary duty with respect to a charitable trust.