WPC 2o ZBE0iXXN\  PXP#XN\  PXP#Lrhd/G/D/ioI&G Letterhead/ GMK/Date/io0#XxP7XP# XX  XX  X # *0 x7#*Ikard & Golden, p.c.   #X*0 x7X#*attorneys & counselors  L 8"X#f*0 x7#Frank N. Ikard, Jr. **823 Congress Avenueʐ$$NCorrespondence: Alvin J. Golden **Suite 910ʐ$$NP. O. Box 684367 Glenn M. Karisch **Austin, Texas 78701ʐ$$NAustin, Texas 787684367 Jerry Frank Jones (Of Counsel) **512/4726695ʐ$$NFax 512/4723669 #^T*0 x7^#* Board Certified Estate Planning & Probate Law*email: karisch@io.com#f*0 x7#ʐ$$NWriters Direct Line #^T P 7^P#Texas Board of Legal Specialization*http://www.io.com/user/karisch/ikard&golden.html#f P 7P#ʐ$$N512/4724542    XX ` hp x (#%#XxP 7XP# * 3 1, 4 XN\  PXPx9 Z6Times New Roman RegularXXN\  PXPx9 Z6Times New Roman RegularXA\  PPx9 Z6Times New Roman RegularXxP7XPH` AZ0Univers (WN) RegularX *0 x7* `(CG TimesScalableX*0 x7X* `(CG TimesScalableXf*0 x7* `(CG TimesScalable^T*0 x7^* `(CG TimesScalable^f*0 x7* `(CG TimesScalable^T P 7^PG  Z 2CG Times (WN) Regular^f P 7PG  Z 2CG Times (WN) RegularXxP 7XPH` AZ0Univers (WN) RegularX23|xz Attorney's Checklist for 1997 Legislative Changes ă 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 15, 1997  TTTT/7 TTT/7 T  @ @ H @ @ H#DescriptionStatutory ReferenceP P  Will Preparation P P 1Be 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  58bP P  Disability Planning P P 2Begin using new statutory durable power of attorney form September 1, 1997Probate Code  490P P 3Begin using new statutory directive to physicians form January 1, 1998Health & Safety Code  672.004P P 4Consider 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 137P P 5Divorce 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, 487P P 6Giving 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  492P P 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  503P P  Probating WillLetters Testamentary P P  8Application 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), 81P P 9Medical records regarding testator's capacity may be easier to get for persons dying on or after September 1, 1997Probate Code  10BP P  Probating Will Muniment of Title P P 10Follow the new statute regarding applications to probate will as muniment of titleProbate Code  89AP P 11Applications to probate will as muniment of title must include social security numbers (unlike other applications)Probate Code 89AP P 12Follow the new statute regarding proving up a will as muniment of titleProbate Code  89BP P 13If 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 89CP P  Declaration of Heirship/Application for Intestate Administration P P 14Citation shall be served on a parent, managing conservator or guardian of a distributee under 12 years old for applications filed after September 1, 1997Probate Code  50P P 15Application 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), 82P P  Small Estate Affidavit P P  16Affidavit 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  137P P  Dependent Administration P P  17Administration can apply to court for permission to abandon burdensome or worthless property (applies to persons dying on or after September 1, 1997)Probate Code  234P P 18Check amended Section 299 regarding tolling of general statute of limitations (for persons dying on or after September 1, 1997)Probate Code  299P P 19Check new procedures for foreclosure of preferred lien (applies to persons dying on or after September 1, 1997)Probate Code  306P P 20The 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, 322P P 21Annual 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, 405P P  Independent Administration P P 22Secured 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  146P P 23Unsecured creditor receiving optional 4month 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  146P P  Guardianship Application P P  24Notice 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  633P P  25Application 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  682P P  26Guardianship is no longer available for missing persons; replaced by a receivership proceedingHuman Resources Code  79.017, 79.018P P  Guardianship Administration P P 27Consider 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 P P 28Annual 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  743P P 29Accounts 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  749P P 30Personal 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  702AP P  31Guardians 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  774P P  32Court 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  776AP P  33There 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  805P P 34Texas 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  856P P  35The permissive recipients of taxmotivated gifts have changed, and there is now a procedure to be followed for approval of taxmotivated gifts (applies to guardianship proceedings commenced on or after September 1, 1997, unless pending proceeding is modified)Probate Code  865P P  CourtCreated Trusts (867 Trusts and 142 Trusts) P P 36Medicaid (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  142.005P P 37Consider 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 trustProbate Code  867, 868; Property Code  142.005P P 38Section 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  868P P  39Guardian 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  868AP P  40Trust 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)P P  Other P P  41The "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)P P  42The 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)P P  43There are now clear procedures for having a statutory probate judge recused or assigned to hear a probate matter in a nonstatutory probate court countyGovernment Code  25.0022, 25.00255P P 44The statutes regarding emergency intervention proceedings (payment of burial expenses, etc.) were movedProbate Code  108 115P P 45Informal probate was repealedFormer Probate Code Chapter XIIP P 46Gifts to old TUGMA accounts are permitted, but the accounts must terminate at age 18TUTMA, Section 25 (Property Code  141.025)P P 47Title 1 of Family Code recodified effective April 17, 1997Family Code Title 1P P 48There are new rules regarding standing to bring an action for support of an adult disabled childFamily Code Chapter 154, Subchapter FP P 49Section 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  450P P 50Payment of claims and sale of property without guardianship increased from $25,000 to $50,000 (effective September 1, 1997)Probate Code  887, 889P P 51Environmental liability of trustees was limitedTrust Code  114.001, Health & Safety Code  361.652P P 52The ability to make inter vivos payments of life insurance benefits was enhanced for policies issued on or after September 1, 1997Insurance Code, Art. 3.506P   P    53Effective 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 by Glenn M. Karisch#A\  PP#