1999 Legislation:

1999 CHANGES TO THE TEXAS PROBATE CODE
Amendments Made By the 76^th Texas Legislature (1999)
Explanation of Legislative Changes © 1999 by Glenn M. Karisch

SECTIONS WHICH WERE AMENDED

Sec. 3. Definitions and Use of Terms.
Sec. 5. Jurisdiction of District Court and Other Courts of Record With Respect to Probate Proceedings and Appeals from Probate Orders.
Sec. 5A. Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction.
Sec. 5B. Transfer of Proceeding.
Sec. 5C.  Actions to Collect Delinquent Property Taxes.
Sec. 10B. Communications or Records Relating to Decedent's Condition Before Death.
Sec. 15. Case Files.
Sec. 17.  Maintaining Records in Lieu of Record Books.
Sec. 17A.  Index.
Sec. 18. Use of Records as Evidence.
Sec. 52. Recorded Instruments as Prima Facie Evidence.
Sec. 52A.  Form of Affidavit of Facts Concerning Identity of Heirs.
Sec. 95. Probate of Foreign Will Accomplished by Filing and Recording.
Sec. 105A. Appointment and Service of Foreign Banks and Trust Companies in Fiduciary Capacity.
Sec. 149A. Accounting.
Sec. 149B. Accounting and Distribution.
Sec. 149C. Removal of Independent Executor.
Sec. 149D.  Distribution of Remaining Estate Pending Judicial Discharge.
Sec. 149E.  Judicial Discharge of Independent Executor.
Sec. 149F.  Court Costs and Other Charges Related to Final Account in Judicial Discharge.
Sec. 149G.  Rights and Remedies Cumulative.
Sec. 194. Bonds of Personal Representatives of Estates.
Sec. 221A.  Change of Resident Agent.
Sec. 221B.  Resignation of Resident Agent.
Sec. 222. Removal.
Sec. 270. Liability of Homestead for Debts.
Sec. 322. Classification of Claims Against Estates of Decedent.
PART 10. INVESTMENTS, LOANS, AND CONTRIBUTIONS OF ESTATES OF WARDS
Sec. 389. Investments Without Court Order.
Sec. 404. Closing Administration of Estates of Decedents.
Sec. 406. Procedure in Case of Neglect or Failure to File Final Account; Payments Due Meantime.
Sec. 601. Definitions.
Sec. 606. District Court and Other Court of Record Jurisdiction.
Sec. 607. Matters Appertaining and Incident to an Estate.
Sec. 608. Transfer of Guardianship Proceeding.
Sec. 625. Case Files.
Sec. 627. Maintaining Records in Lieu of Record Books.
Sec. 627A.  Index.
Sec. 628.  Use of Records as Evidence.
Sec. 633. Notice and Citation.
Sec. 642. Standing to Commence or Contest Proceeding.
Sec. 646. Appointment of Attorney Ad Litem and Interpreter.
Sec. 647. Duties of Attorney Ad Litem.
Sec. 647A. Certification Requirement for Certain Court-appointed Attorneys.
Sec. 648A. Duties of Court Investigator.
Sec. 665. Compensation of Guardians and Temporary Guardians.
Sec. 665B. Compensation of Certain Attorneys.
Sec. 677A. Written Declarations by Certain Parents to Appoint Guardians for Their Children.
Sec. 682. Application; Contents.
Sec. 682A. Application for Appointment of Guardian for Certain Persons.
Sec. 683. Court's Initiation of Guardianship Proceedings.
Sec. 683A. Information Letter.
Sec. 694A. Complete Restoration of Ward's Capacity or Modification of Guardianship [Ward].
Sec. 694B. Contents of Application.
Sec. 694C. Appointment of Attorney Ad Litem.
Sec. 694D. Hearing.
Sec. 694E. Findings Required.
Sec. 694F. Examinations and Reports Relating to Complete Restoration of Ward's Capacity or Modification of Guardianship.
Sec. 694G. Order of Complete Restoration of Ward's Capacity.
Sec. 694H. Modification of Guardianship.
Sec. 694I. Dismissal of Application.
Sec. 694J. Contents of Order.
Sec. 694K. Attorney Retained on Ward's Behalf.
Sec. 697. Registration of Private Professional Guardians.
Sec. 698. Access to Criminal History Records.
Sec. 702. Bond Required of Guardian of the Person or Estate.
Sec. 743. Reports of Guardians of the Person.
Sec. 855. Investments Without Court Order.
Sec. 868. Terms of Management Trust.
Sec. 875. Temporary Guardian--Procedure.
Sec. 886. Appointment of Receiver.
Sec. 886A. Expenditures by Receiver.
Sec. 886B. Investments, Loans, and Contributions by Receiver.
Sec. 886C. Receiver's Expenses, Account, and Compensation.
Sec. 886D. Closing Receivership.
Sec. 886E. Action of Judge.
Sec. 886F. Recordation of Proceedings.

Sec. 3. Definitions and Use of Terms.

Except as otherwise provided by Chapter XIII of this Code, when used in this Code, unless otherwise apparent from the context:

(a) "Authorized corporate surety" means a domestic or foreign corporation authorized to do business in the State of Texas for the purpose of issuing surety, guaranty or indemnity bonds guaranteeing the fidelity of executors and administrators.

(b) "Child" includes an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel, but, unless expressly so stated herein, does not include a child who has no presumed father.

(c) "Claims" include liabilities of a decedent which survive, including taxes, whether arising in contract or in tort or otherwise, funeral expenses, the expense of a tombstone, expenses of administration, estate and inheritance taxes, and debts due such estates.

(d) "Corporate fiduciary" means a financial institution as defined by Section 201.101, Finance Code, [trust company or bank] having trust powers, existing or doing business under the laws of this state, another state, or [of] the United States, which is authorized by law to act under the order or appointment of any court of record, without giving bond, as receiver, trustee, executor, administrator, or, although without general depository powers, depository for any moneys paid into court, or to become sole guarantor or surety in or upon any bond required to be given under the laws of this state.

(e) "County Court" and "Probate Court" are synonymous terms and denote county courts in the exercise of their probate jurisdiction, courts created by statute and authorized to exercise original probate jurisdiction, and district courts exercising probate jurisdiction in contested matters.

(f) "County Judge," "Probate Judge," and "Judge" denote the presiding judge of any court having original jurisdiction over probate proceedings, whether it be a county court in the exercise of its probate jurisdiction, a court created by statute and authorized to exercise probate jurisdiction, or a district court exercising probate jurisdiction in contested matters.

(g) "Court" denotes and includes both a county court in the exercise of its probate jurisdiction, a court created by statute and authorized to exercise original probate jurisdiction, or a district court exercising original probate jurisdiction in contested matters.

(h) "Devise," when used as a noun, includes a testamentary disposition of real or personal property, or of both. When used as a verb, "devise" means to dispose of real or personal property, or of both, by will.

(i) "Devisee" includes legatee.

(j) "Distributee" denotes a person entitled to the estate of a decedent under a lawful will, or under the statutes of descent and distribution.

(k) "Docket" means the probate docket.

(l) "Estate" denotes the real and personal property of a decedent , both as such property originally existed and as from time to time changed in form by sale, reinvestment, or otherwise, and as augmented by any accretions and additions thereto (including any property to be distributed to the representative of the decedent by the trustee of a trust which terminates upon the decedent's death) and substitutions therefor, and as diminished by any decreases therein and distributions therefrom.

(m) "Exempt property" refers to that property of a decedent's estate which is exempt from execution or forced sale by the Constitution or laws of this State, and to the allowance in lieu thereof.

(n) Repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995.

(o) "Heirs" denote those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.

(p) "Incapacitated" or "Incapacitated person" means:

(1) a minor;

(2) an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual's own physical health, or to manage the individual's own financial affairs;

(3) a missing person; or

(4) a person who must have a guardian appointed to receive funds due the person from any governmental source.

(q) "Independent executor" means the personal representative of an estate under independent administration as provided in Section 145 of this Code. The term "independent executor" includes the term "independent administrator."

(r) "Interested persons" or "persons interested" means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor or incompetent ward.

(s) "Legacy" includes any gift or devise by will, whether of personalty or realty. "Legatee" includes any person entitled to a legacy under a will.

(t) "Minors" are all persons under eighteen years of age who have never been married or who have not had disabilities of minority removed for general purposes.

(u) "Minutes" means the probate minutes.

(v) "Mortgage" or "Lien" includes deed of trust, vendor's lien, chattel mortgage, mechanic's, materialman's or laborer's lien, judgment, attachment or garnishment lien, pledge by hypothecation, and Federal or State tax liens.

(w) "Net estate" means the real and personal property of a decedent, exclusive of homestead rights, exempt property, the family allowance and enforceable claims against the estate.

(x) "Person" includes natural persons and corporations.

(y) Repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995.

(z) "Personal property" includes interests in goods, money, choses in action, evidence of debts, and chattels real.

(aa) "Personal representative" or "Representative" includes executor, independent executor, administrator, independent administrator, temporary administrator, together with their successors. The inclusion of independent executors herein shall not be held to subject such representatives to control of the courts in probate matters with respect to settlement of estates except as expressly provided by law.

(bb) "Probate matter," "Probate proceedings," "Proceeding in probate," and "Proceedings for probate" are synonymous and include a matter or proceeding relating to the estate of a decedent.

(cc) "Property" includes both real and personal property.

(dd) "Real property" includes estates and interests in lands, corporeal or incorporeal, legal or equitable, other than chattels real.

(ee) "Surety" includes both personal and corporate sureties.

(ff) "Will" includes codicil; it also includes a testamentary instrument which merely:

(1) appoints an executor or guardian;

(2) directs how property may not be disposed of; or

(3) revokes another will.

(gg) The singular number includes the plural; the plural number includes the singular.

(hh) The masculine gender includes the feminine and neuter.

(ii) "Statutory probate court" means a statutory court designated as a statutory probate court under Chapter 25, Government Code. A county court at law exercising probate jurisdiction is not a statutory probate court under this Code unless the court is designated a statutory probate court under Chapter 25, Government Code.

(jj) "Next of kin" includes an adopted child or his or her descendents and the adoptive parent of the adopted child.

(kk) "Charitable organization" means:

(1) a nonprofit corporation, trust, community chest, fund, foundation, or other entity that is exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code of 1986 because the entity is organized and operated exclusively for religious, charitable, scientific, educational, or literary purposes, testing for public safety, prevention of cruelty to children or animals, or promotion of amateur sports competition; or

(2) any other entity or organization that is organized and operated exclusively for the purposes listed in Section 501(c)(3) of the Internal Revenue Code of 1986.

(ll) "Governmental agency of the state" means:

(1) an incorporated city or town, a county, a public school district, a special-purpose district or authority, or a district, county, or justice of the peace court;

(2) a board, commission, department, office, or other agency in the executive branch of state government, including an institution of higher education as defined by Section 61.003, Education Code;

(3) the legislature or a legislative agency; and

(4) the supreme court, the court of criminal appeals, a court of appeals, or the State Bar of Texas or another judicial agency having statewide jurisdiction.

(mm) "Ward" is a person for whom a guardian has been appointed.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 2(a), eff. Aug. 22, 1957; Acts 1961, 57th Leg., p. 44, ch. 30, Sec. 2, eff. Aug. 28, 1961; Acts 1969, 61st Leg., p. 1703, ch. 556, Sec. 1, eff. June 10, 1969; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 1, eff. June 12, 1969; Acts 1975, 64th Leg., p. 104, ch. 45, Sec. 1, eff. Sept. 1, 1975; Acts 1975, 64th Leg., p. 2195, ch. 701, Sec. 1, eff. June 21, 1975; Acts 1977, 65th Leg., p. 1061, ch. 390, Secs. 1, 2, eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 1740, ch. 713, Sec. 1, eff. Aug. 27, 1979. Subsec. (n) amended by Acts 1985, 69th Leg., ch. 591, Sec. 1, eff. Sept. 1, 1985; Subsec. (p) amended by Acts 1985, 69th Leg., ch. 159, Sec. 1, eff. Sept. 1, 1985; Subsec. (y) amended by Acts 1985, 69th Leg., ch. 159, Sec. 2, eff. Sept. 1, 1985; Subsec. (b) amended by Acts 1989, 71st Leg., ch. 375, Sec. 33, eff. Sept. 1, 1989; Subsecs. (kk), (ll) added by Acts 1989, 71st Leg., ch. 1035, Sec. 1, eff. Sept. 1, 1989; subsec. (n) amended by Acts 1991, 72nd Leg., ch. 14, Sec. 284(96), eff. Sept. 1, 1991; Subsec. (ff) amended by Acts 1991, 72nd Leg., ch. 895, Sec. 1, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 3, eff. Sept. 1, 1993; Subsec. (n) repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995; Subsec. (p) amended by Acts 1995, 74^th Leg., ch. 1039, Sec. 4, eff. Sept. 1, 1995; Subsec. (y) repealed by Acts 1995, 74th Leg., ch. 1039, Sec. 73(1), eff. Sept. 1, 1995; Subsec. (mm) added by Acts 1995, 74th Leg., ch. 1039, Sec. 4, eff. Sept. 1, 1995; Subsec. (ii) amended by Acts 1997, 75th Leg., ch. 52, Sec. 1, eff. Sept. 1, 1997. Subsec. (d) amended by Acts 1999, 76^th Leg., ch. _____ [HB 2066], eff. Sept. 1, 1999.

Sec. 5. Jurisdiction of District Court and Other Courts of Record With Respect to Probate Proceedings and Appeals from Probate Orders.

(a) The district court shall have original control and jurisdiction over executors and administrators under such regulations as may be prescribed by law.

(b) In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate and administrations shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion (or shall on the motion of any party to the proceeding, according to the motion) request as provided by Section 25.0022, Government Code, the assignment of a statutory probate court judge to hear the contested portion of the proceeding, or transfer the contested portion of the proceeding to the district court, which may then hear contested matter as if originally filed in district court. If the judge of the county court has not transferred a contested probate matter to the district court at the time a party files a motion for assignment of a statutory probate court judge, the county judge shall grant the motion and may not transfer the matter to district court unless the party withdraws the motion. A statutory probate court judge assigned to a contested probate matter as provided by this subsection has for that matter the jurisdiction and authority granted to a statutory probate court by Sections 5A and 5B of this code. The county court shall continue to exercise jurisdiction over the management of the estate with the exception of the contested matter until final disposition of the contested matter is made by the assigned judge or the district court. In contested matters transferred to the district court in those counties, the district court, concurrently with the county court, shall have the general jurisdiction of a probate court. Upon resolution of all pending contested matters, the contested portion of the probate proceeding shall be transferred by the district court to the county court for further proceedings not inconsistent with the orders of the district court. If a contested portion of the proceeding is transferred to a district court under this subsection, the clerk of the district court may perform in relation to the transferred portion of the proceeding any function a county clerk may perform in that type of contested proceeding.

(c) In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate and administrations shall be filed and heard in such courts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any of such matters sitting for the judge of any of such courts. In contested probate matters, the judge of the constitutional county court may on his own motion, and shall on the motion of any party to the proceeding, transfer the proceeding to the statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, which may then hear the proceeding as if originally filed in such court.

(d) A statutory probate court has concurrent jurisdiction with the district court in all actions by or against a person in the person's capacity as a personal representative, in all actions involving an inter vivos trust, in all actions involving a charitable trust, and in all actions involving a testamentary trust.

(e) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate. When a surety is called on to perform in place of an administrator, all courts exercising original probate jurisdiction may award judgment against the personal representative in favor of his surety in the same suit.

(f) All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.

(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.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1973, 63rd Leg., p. 1684, ch. 610, Sec. 1; Acts 1975, 64th Leg., p. 2195, ch. 701, Sec. 2, eff. June 21, 1975; Acts 1977, 65^th Leg., p. 1170, ch. 448, Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1740, ch. 713, Sec. 2, eff. Aug. 27, 1979. Subsec. (b) amended by Acts 1983, 68th Leg., p. 5434, ch. 1015, Sec. 1, eff. Aug. 29, 1983; Subsecs. (b), (c) amended by Acts 1983, 68th Leg., p. 4122, ch. 647, Sec. 2, eff. Sept. 1, 1983; Subsec. (b) amended by Acts 1985, 69th Leg., ch. 159, Sec. 3, eff. Sept. 1, 1985; amended by Acts 1987, 70th Leg., ch. 459, Sec. 4, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1035, Sec. 2, eff. Sept. 1, 1989; Subsecs. (a), (b), (c), (e) amended by Acts 1993, 73rd Leg., ch. 957, Sec. 5, eff. Sept. 1, 1993; Subsec. (g) added by Acts 1997, 75th Leg., ch. 1435, Sec. 3, eff. Sept. 1, 1997. Subsec. (b) amended by Acts 1999, 76^th Leg., ch. ____ (HB 1607), eff. Aug. 30, 1999.

Sec. 5A. Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction.

(a) In proceedings in the constitutional county courts and statutory county courts at law, 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, 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 incident to an estate and for the enforcement of liens thereon incident to an estate, all actions for trial of the right of property incident to an estate, and actions to construe wills, and generally all matters relating to the settlement, partition, and distribution of estates of deceased persons.

(b) In proceedings in the statutory probate courts and district [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) A statutory probate court has concurrent jurisdiction with the district court in all actions:

(1) by or against a person in the person's capacity as a personal representative;

(2) involving an inter vivos trust;

(3) involving a charitable trust; and

(4) involving a testamentary trust.

(d) A statutory probate court may exercise the pendent and ancillary jurisdiction necessary to promote judicial efficiency and economy.

(e) Subsections (c)(2), (3), and (4) [(c)] and Subsection (d) apply whether or not the matter is appertaining to or incident to an estate.

Added by Acts 1979, 66th Leg., p. 1741, ch. 713, Sec. 3, eff. Aug. 27, 1979. Subsec. (b) amended by Acts 1985, 69th Leg., ch. 875, Sec. 1, eff. Aug. 26, 1985; Acts 1987, 70^th Leg., ch. 459, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1035, Sec. 3, eff. Sept. 1, 1989; Subsecs. (a), (b) amended by Acts 1993, 73rd Leg., ch. 957, Sec. 6, eff. Sept. 1, 1993; Subsec. (b) amended by Acts 1997, 75th Leg., ch. 1302, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 778), eff. Sept. 1, 1999.

Sec. 5B. Transfer of Proceeding.

A judge of a statutory probate court on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district, county, or statutory court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.

Added by Acts 1983, 68th Leg., p. 5228, ch. 958, Sec. 1, eff. Sept. 1, 1983. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 2580), eff. Sept. 1, 1999.

Sec. 5C.  Actions to Collect Delinquent Property Taxes.

(a) This section applies only to a decedent's estate that:

(1)  is being administered in a pending probate proceeding;

(2)  owns or claims an interest in property against which a taxing unit has imposed ad valorem taxes that are delinquent; and

(3)  is not being administered as an independent administration under Section 145 of this code.

(b)  Notwithstanding any provision of this code to the contrary, if the probate proceedings are pending in a foreign jurisdiction or in a county other than the county in which the taxes were imposed, a suit to foreclose the lien securing payment of the taxes or to enforce personal liability for the taxes must be brought under Section 33.41, Tax Code, in a court of competent jurisdiction in the county in which the taxes were imposed.

(c)  If the probate proceedings have been pending for four years or less in the county in which the taxes were imposed, the taxing unit may present a claim for the delinquent taxes against the estate to the personal representative of the estate in the probate proceedings.

(d)  If the taxing unit presents a claim against the estate under Subsection (c) of this section:

(1)  the claim of the taxing unit is subject to each applicable provision in Parts 4 and 5, Chapter VIII, of this code that relates to a claim or the enforcement of a claim in a probate proceeding; and

(2)  the taxing unit may not bring a suit in any other court to foreclose the lien securing payment of the taxes or to enforce personal liability for the delinquent taxes before the first day after the fourth anniversary of the date the application for the probate proceeding was filed.

(e)  To foreclose the lien securing payment of the delinquent taxes, the taxing unit must bring a suit under Section 33.41, Tax Code, in a court of competent jurisdiction for the county in which the taxes were imposed if:

(1)  the probate proceedings have been pending in that county for more than four years; and

(2)  the taxing unit did not present a delinquent tax claim under Subsection (c) of this section against the estate in the probate proceeding.

(f)  In a suit brought under Subsection (e) of this section, the taxing unit:

(1)  shall make the personal representative of the decedent's estate a party to the suit; and

(2)  may not seek to enforce personal liability for the taxes against the estate of the decedent.

Added by Acts 1999, 76^th Leg., ch. _____ (HB 3549), eff. Sept. 1, 1999.

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 file-stamped [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 Acts 1997, 75th Leg., ch. 1302, Sec. 2, eff. Sept. 1, 1997. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Sec. 15. Case Files [Probate Minutes and Papers to Be Recorded Therein].

The county clerk shall maintain a case file for each decedent's estate in which a probate proceeding has been filed. The case file must contain [keep a record book styled "Probate Minutes," and shall enter therein in full] all orders, judgments, [decrees,] and proceedings of the court and any other probate filing with the court, including all [together with the following]:

(1) [(a)  All] applications for the probate of wills and for the granting of administration; [.]

(2) [(b)  All] citations and notices, whether published or posted, with the returns thereon; [.]

(3) [(c)  All] wills and the testimony upon which the same are admitted to probate, provided that the substance only of depositions shall be recorded; [.]

(4) [(d)  All] bonds and official oaths; [.]

(5) [(e)  All] inventories, appraisements, and lists of claims; [.]

(6) [(f)  All] exhibits and accounts; [.]

(7) [(g)  All] reports of hiring, renting, or sale; [.]

(8) [(h)  All] applications for sale or partition of real estate and reports of sale and of commissioners of partition;[.]

(9) [(i)  All] applications for authority to execute leases for mineral development, or for pooling or unitization of lands, royalty, or other interest in minerals, or to lend or invest money; and [.]

(10) [(j)  All] reports of lending or investing money.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 10, eff. Sept. 1, 1993. Amended by Acts 1999, 76^th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Sec. 17.  Maintaining Records in Lieu of Record Books.

In lieu of keeping the record books described by Sections 13, 14, and 16 of this code, the county clerk may maintain the information relating to a person's or estate's probate proceedings maintained in those record books on a computer file, on microfilm, in the form of a digitized optical image, or in another similar form of data compilation.

Sec. 17A.  Index.

The county clerk shall properly index the records [each record book,] and [shall] keep the index [it] open for public inspection, but may [shall] not release the index from the clerk's [let it out of his] custody.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1999, 76^th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Sec. 18. Use of Records as Evidence.

The record books or individual case files, including records on a computer file, on microfilm, in the form of a digitized optical image, or in another similar form of data compilation described in preceding sections [Sections] of this code [Code], or certified copies or reproductions of the records [thereof], shall be evidence in any court of this state [State].

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. .Amended by Acts 1999, 76^th Leg., ch. ___ (HB 1142), eff. Sept. 1, 1999.

Sec. 52. Recorded Instruments as Prima Facie Evidence.

(a)  A [Any] statement of facts concerning the family history, genealogy, marital status, or the identity of the heirs of a decedent shall be received in a proceeding to declare heirship, or in a [any] suit involving title to real or personal property, as prima facie evidence of the facts therein stated, if the [when such] statement is contained in either an affidavit or any other instrument legally executed and acknowledged or sworn to before, and certified by, an officer authorized to take acknowledgments or oaths as applicable, or any judgment of a court of record, and if the [such] affidavit or instrument has been of record for five years or more in the deed records of any county in this state in which such real or personal property is located at the time the suit is instituted, or in the deed records of any county of this state in which the decedent had his domicile or fixed place of residence at the time of his death. If there is any error in the statement of facts in such recorded affidavit or instrument, the true facts may be proved by anyone interested in the proceeding in which said affidavit or instrument is offered in evidence.

(b)  An affidavit of facts concerning the identity of heirs of a decedent as to an interest in real property that is filed in a proceeding or suit described by Subsection (a) of this section may be in the form described by Section 52A of this code.

(c)  An affidavit of facts concerning the identity of heirs of a decedent does not affect the rights of an omitted heir or a creditor of the decedent as otherwise provided by law. This statute shall be cumulative of all other statutes on the same subject, and shall not be construed as abrogating any right to present evidence or to rely on an affidavit of facts conferred by any other statute or rule of law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 4, eff. June 12, 1969. Amended by Acts 1991, 72nd Leg., ch. 895, Sec. 5, eff. Sept. 1, 1991. Amended by Acts 1999, 76^th Leg., ch. ____ (SB 1106), eff. Sept. 1, 1999.

Sec. 52A.  Form of Affidavit of Facts Concerning Identity of Heirs.

An affidavit of facts concerning the identity of heirs of a decedent may be in substantially the following form:

AFFIDAVIT OF FACTS CONCERNING THE IDENTITY OF HEIRS

Before me, the undersigned authority, on this day personally appeared _____________ ("Affiant") (insert name of affiant) who, being first duly sworn, upon his/her oath states:

1.  My name is ____________ (insert name of affiant), and I live at ______________ (insert address of affiant's residence). I am personally familiar with the family and marital history of _____________ ("Decedent") (insert name of decedent), and I have personal knowledge of the facts stated in this affidavit.

2.  I knew decedent from ___________ (insert date) until ___________ (insert date). Decedent died on __________ (insert date of death). Decedent's place of death was __________ (insert place of death). At the time of decedent's death, decedent's residence was __________ (insert address of decedent's residence).

3.  Decedent's marital history was as follows: _________ (insert marital history and, if decedent's spouse is deceased, insert date and place of spouse's death).

4.  Decedent had the following children: __________ (insert name, birth date, name of other parent, and current address of child or date of death of child and descendants of deceased child, as applicable, for each child).

5.  Decedent did not have or adopt any other children and did not take any other children into decedent's home or raise any other children, except: ___________ (insert name of child or names of children, or state "none").

6.  (Include if decedent was not survived by descendants.) Decedent's mother was: __________ (insert name, birth date, and current address or date of death of mother, as applicable).

7.  (Include if decedent was not survived by descendants.) Decedent's father was: __________ (insert name, birth date, and current address or date of death of father, as applicable).

8.  (Include if decedent was not survived by descendants or by both mother and father.) Decedent had the following siblings: ___________ (insert name, birth date, and current address or date of death of each sibling and parents of each sibling and descendants of each deceased sibling, as applicable, or state "none").

9.  (Optional.) The following persons have knowledge regarding the decedent, the identity of decedent's children, if any, parents, or siblings, if any: _____________ (insert names of persons with knowledge, or state "none").

10.  Decedent died without leaving a written will. (Modify statement if decedent left a written will.)

11.  There has been no administration of decedent's estate. (Modify statement if there has been administration of decedent's estate.)

12.  Decedent left no debts that are unpaid, except: ____________ (insert list of debts, or state "none").

13.  There are no unpaid estate or inheritance taxes, except: ______________ (insert list of unpaid taxes, or state "none").

14.  To the best of my knowledge, decedent owned an interest in the following real property: ________________ (insert list of real property in which decedent owned an interest, or state "none").

15.  (Optional.)  The following were the heirs of decedent: __________ (insert names of heirs).

16.  (Insert additional information as appropriate, such as size of the decedent's estate.)

Signed this ____ day of ____________, ______.

______________________

(signature of affiant)

State of ________________

County of _______________

Sworn to and subscribed to before me on ________________ (date) by _____________________ (insert name of affiant).

_______________________________

(signature of notarial officer)

(Seal, if any, of notary)  _______________________________

(printed name)

My commission expires:  ________

Added by Acts 1999, 76^th Leg., ch. ____ (SB 1106), eff. Sept. 1, 1999.

Sec. 95. Probate of Foreign Will Accomplished by Filing and Recording.

(a) Foreign Will May Be Probated. The written will of a testator who was not domiciled in Texas at the time of his death which would affect any real or personal property in this State, may be admitted to probate upon proof that it stands probated or established in any of the United States, its territories, the District of Columbia, or any foreign nation.

(b) Application and Citation.

(1) Will probated in domiciliary jurisdiction. If a foreign will has been admitted to probate or established in the jurisdiction in which the testator was domiciled at the time of his death, the application need state only that probate is requested on the basis of the authenticated copy of the foreign proceedings in which the will was probated or established. No citation or notice is required.

(2) Will probated in non-domiciliary jurisdiction. If a foreign will has been admitted to probate or established in any jurisdiction other than the domicile of the testator at the time of his death, the application for its probate shall contain all of the information required in an application for the probate of a domestic will, and shall also set out the name and address of each devisee and each person who will be entitled to a portion of the estate as an heir in the absence of a will. Citations shall be issued and served on each such devisee and heir by registered or certified mail.

(c)  Copy of Will and Proceedings To Be Filed. A copy of the will and of the judgment, order, or decree by which it was admitted to probate or otherwise established, attested by and with the original signature of the clerk of the court or of [by] such other official as has custody of such will or is in charge of probate records, with the seal of the court affixed, if there is a seal, together with a certificate containing the original signature of the judge or presiding magistrate of such court that the said attestation is in due form, shall be filed with the application. Original signatures shall not be required for recordation in the deed records pursuant to Sections 96 through 99 or Section 107 of this code.

(d) Probate Accomplished by Recording.

(1) Will admitted in domiciliary jurisdiction. If the will has been probated or established in the jurisdiction in which the testator was domiciled at the time of his death, it shall be the ministerial duty of the clerk to record such will and the evidence of its probate or establishment in the minutes of the court. No order of the court is necessary. When so filed and recorded, the will shall be deemed to be admitted to probate, and shall have the same force and effect for all purposes as if the original will had been probated by order of the court, subject to contest in the manner and to the extent hereinafter provided.

(2) Will admitted in non-domiciliary jurisdiction. If the will has been probated or established in another jurisdiction not the domicile of the testator, its probate in this State may be contested in the same manner as if the testator had been domiciled in this State at the time of his death. If no contest is filed, the clerk shall record such will and the evidence of its probate or establishment in the minutes of the court, and no order of the court shall be necessary. When so filed and recorded, it shall be deemed to be admitted to probate, and shall have the same force and effect for all purposes as if the original will had been probated by order of the court, subject to contest in the manner and to the extent hereafter provided.

(e) Effect of Foreign Will on Local Property. If a foreign will has been admitted to probate or established in the jurisdiction in which the testator was domiciled at the time of his death, such will, when probated as herein provided, shall be effectual to dispose of both real and personal property in this State irrespective of whether such will was executed with the formalities required by this Code.

(f) Protection of Purchasers. When a foreign will has been probated in this State in accordance with the procedure prescribed in this section for a will that has been admitted to probate in the domicile of the testator, and it is later proved in a proceeding brought for that purpose that the foreign jurisdiction in which the will was admitted to probate was not in fact the domicile of the testator, the probate in this State shall be set aside. If any person has purchased property from the personal representative or any legatee or devisee, in good faith and for value, or otherwise dealt with any of them in good faith, prior to the commencement of the proceeding, his title or rights shall not be affected by the fact that the probate in this State is subsequently set aside.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 976, ch. 173, Sec. 9, eff. Jan. 1, 1972. Amended by Acts 1999, 76^th Leg., ch. ___ (HB 1176), eff. Sept. 1, 1999.

Sec. 105A. Appointment and Service of Foreign Banks and Trust Companies in Fiduciary Capacity.

(a)  A corporate fiduciary that does not have its main office or a branch office in this state, hereinafter called "foreign corporate fiduciaries" [Any bank or trust company organized under the laws of, and having its principal office in, the District of Columbia or any territory or state of the United States of America, other than the State of Texas, and any national bank having its principal office in the District of Columbia or such territory or other state (all such banks or trust companies being hereinafter sometimes called "foreign banks or trust companies")], having the corporate power to so act, may be appointed and may serve in the State of Texas as trustee (whether of a personal or corporate trust), executor, administrator, guardian of the estate, or in any other fiduciary capacity, whether the appointment be by will, deed, agreement, declaration, indenture, court order or decree, or otherwise, when and to the extent that the home state of the corporate fiduciary [District of Columbia or territory or other state in which such foreign bank or trust company is organized and has its principal office] grants authority to serve in like fiduciary capacity to a corporate fiduciary whose home state is this state [bank or trust company organized under the laws of, and having its principal office in, the State of Texas, or to a national bank having its principal office in the State of Texas].

(b)  Before qualifying or serving in the State of Texas in any fiduciary capacity, as aforesaid, such a foreign corporate fiduciary [bank or trust company] shall file in the office of the Secretary of the State of the State of Texas (1) a copy of its charter, articles of incorporation or of association, and all amendments thereto, certified by its secretary under its corporate seal; (2) a duly executed instrument in writing, by its terms of indefinite duration and irrevocable, appointing the Secretary of State and his successors its agent for service of process upon whom all notices and processes issued by any court of this state may be served in any action or proceeding relating to any trust, estate, fund or other matter within this state with respect to which such foreign corporate fiduciary [bank or trust company] is acting in any fiduciary capacity, including the acts or defaults of such foreign corporate fiduciary [bank or trust company] with respect to any such trust, estate or fund; and (3) a written certificate of designation, which may be changed from time to time thereafter by the filing of a new certificate of designation, specifying the name and address of the officer, agent or other person to whom such notice or process shall be forwarded by the Secretary of State. Upon receipt of such notice or process, it shall be the duty of the Secretary of State forthwith to forward same by registered or certified mail to the officer, agent or other person so designated. Service of notice or process upon the Secretary of State as agent for such a foreign corporate fiduciary [bank or trust company] shall in all ways and for all purposes have the same effect as if personal service had been had within this state upon such foreign corporate fiduciary [bank or trust company].

(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)]  Any foreign corporate fiduciary [bank or trust company] acting in a fiduciary capacity in this state in strict accordance with the provisions of this Section shall not be deemed to be doing business in the State of Texas within the meaning of Article 8.01 of the Texas Business Corporation Act; and shall be deemed qualified to serve in such capacity under the provisions of Section 105 of this Code. [; and notwithstanding other law shall not be prohibited from using in its name and stationery the terms "bank," "trust," or "bank and trust."]

(d) [(e)]  The provisions hereof are in addition to, and not a limitation on, the provisions of Subtitle G, Finance Code, and the Texas Trust Company Act (Article 342a-1.001 et seq., Vernon's Texas Civil Statutes) [Section 2 of Chapter 388, Acts of the 55th Legislature, Regular Session, 1957].

(e) [(f)]  Any foreign corporate fiduciary [bank or trust Company] which shall violate any provision of this Section 105a shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not exceeding Five Thousand Dollars ($5,000.00), and may, in the discretion of the court, be prohibited from thereafter serving in this state in any fiduciary capacity.

Added by Acts 1961, 57th Leg., p. 46, ch. 31, Sec. 1, eff. Aug. 28, 1961. Subsecs. (c), (d) amended by Acts 1995, 74th Leg., ch. 914, Sec. 10, eff. Sept. 1, 1995; Subsec. (c) amended by Acts 1997, 75th Leg., ch. 769, Sec. 5, eff. Sept. 1, 1997. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 2066), eff. Sept. 1, 1999.

Sec. 128B.  Notice When Will Probated after Four Years.

(a) Except as provided by Subsection (b) of this section, an applicant for the probate of a will under Section 73(a) of this code must give notice by service of process to each of the testator's heirs whose address can be ascertained by the applicant with reasonable diligence. The notice must be given before the probate of the testator's will.

(b)  Notice under Subsection (a) of this section is not required to be provided to an heir who has delivered to the court an affidavit signed by the heir stating that the heir does not object to the offer of the testator's will for probate.

(c)  The notice required by this section and an affidavit described by Subsection (b) of this section must also contain a statement that:

(1)  the testator's property will pass to the testator's heirs if the will is not admitted to probate; and

(2)  the person offering the testator's will for probate may not be in default for failing to present the will for probate during the four-year period immediately following the testator's death.

(d)  If the address of any of the testator's heirs cannot be ascertained by the applicant with reasonable diligence, the court shall appoint an attorney ad litem to protect the interests of the unknown heirs after an application for the probate of a will is made under Section 73(a) of this code.

(e)  In the case of an application for the probate of a will of a testator who has had another will admitted to probate, this section applies to a beneficiary of the testator's probated will instead of the testator's heirs.

Added by Acts 1999, 76^th Leg., ch. _____ (HB 1852), eff. Sept. 1, 1999.

Sec. 149A. Accounting.

(a) Interested Person May Demand Accounting. At any time after the expiration of fifteen months from the date that an independent administration was created and the order appointing an independent executor was entered by the county court, any person interested in the estate may demand an accounting from the independent executor. The independent executor shall thereupon furnish to the person or persons making the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail:

1. The property belonging to the estate which has come into his hands as executor.

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 in his hands.

6. Such other facts as may be necessary to a full and definite understanding of the exact condition of the estate.

7. Such facts, if any, that show why the administration should not be closed and the estate distributed.

Any other interested person shall, upon demand, be entitled to a copy of any exhibit or accounting that has been made by an independent executor in compliance with this section.

(b)  Enforcement of Demand. Should the independent executor not comply with a demand for an accounting authorized by this section within sixty days after receipt of the demand, the person making the demand may compel compliance by an action in the county court, as that term is defined by Section 3 of this code [or by a suit in the district court]. After a hearing, the court shall enter an order requiring the accounting to be made at such time as it deems proper under the circumstances.

(c) Subsequent Demands. After an initial accounting has been given by an independent executor, any person interested in an estate may demand subsequent periodic accountings at intervals of not less than twelve months, and such subsequent demands may be enforced in the same manner as an initial demand.

(d) Remedies Cumulative. The right to an accounting accorded by this section is cumulative of any other remedies which persons interested in an estate may have against the independent executor thereof.

Added by Acts 1971, 62nd Leg., p. 980, ch. 173, Sec. 10, eff. Jan. 1, 1972. Amended by Acts 1973, 63rd Leg., p. 412, ch. 184, Sec. 1, eff. May 25, 1973; Acts 1977, 65th Leg., p. 1065, ch. 390, Sec. 6, eff. Sept. 1, 1977. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Sec. 149B. Accounting and Distribution.

(a)  In addition to or in lieu of the right to an accounting provided by Section 149A of this code, at any time after the expiration of two years from the date that an independent administration was created and the order appointing an independent executor was entered, a person interested in the estate may petition the county court, as that term is defined by Section 3 of this code, for an accounting and distribution. [The proceeding for an accounting and distribution may be brought in the county court if the county judge is licensed to practice law in the State of Texas or may be brought in a statutory probate court, a county court at law with probate jurisdiction, or a district court of the county.] The court may order an accounting to be made with the court by the independent executor at such time as the court deems proper. The accounting shall include the information that the court deems necessary to determine whether any part of the estate should be distributed.

(b) On receipt of the accounting and, after notice to the independent executor and a hearing, unless the court finds a continued necessity for administration of the estate, the court shall order its distribution by the independent executor to the persons entitled to the property. If the court finds there is a continued necessity for administration of the estate, the court shall order the distribution of any portion of the estate that the court finds should not be subject to further administration by the independent executor. If any portion of the estate that is ordered to be distributed is incapable of distribution without prior partition or sale, the court shall order partition and distribution, or sale, in the manner provided for the partition and distribution of property incapable of division in estates administered under the direction of the county court.

(c) If all the property in the estate is ordered distributed by the executor and the estate is fully administered, the court also may order the independent executor to file a final account with the court and may enter an order closing the administration and terminating the power of the independent executor to act as executor.

Added by Acts 1979, 66th Leg., p. 1751, ch. 713, Sec. 18, eff. Aug. 27, 1979. Subsecs. (a) and (b) amended by Acts 1985, 69th Leg., ch. 882, Sec. 1, eff. Aug. 26, 1985; Subsec. (a) amended by Acts 1987, 70th Leg., ch. 760, Sec. 1, eff. Aug. 31, 1987; Subsec. (b) amended by Acts 1987, 70th Leg., ch. 565, Sec. 1, eff. June 18, 1987. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Sec. 149C. Removal of Independent Executor.

(a)  The county court, as that term is defined by Section 3 of this code[, a statutory probate court, a county court at law with probate jurisdiction, or a district court of the county], on its own motion or on motion of any interested person, after the independent executor has been cited by personal service to answer at a time and place fixed in the notice, may remove an independent executor when:

(1) the independent executor fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to his knowledge;

(2) sufficient grounds appear to support belief that he has misapplied or embezzled, or that he is about to misapply or embezzle, all or any part of the property committed to his care;

(3) he fails to make an accounting which is required by law to be made;

(4) he fails to timely file the notice required by Section 128A of this code;

(5) he is proved to have been guilty of gross misconduct or gross mismanagement in the performance of his duties; or

(6) he becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing his fiduciary duties.

(b) The order of removal shall state the cause of removal and shall direct by order the disposition of the assets remaining in the name or under the control of the removed executor. The order of removal shall require that letters issued to the removed executor shall be surrendered and that all letters shall be canceled of record. If an independent executor is removed by the court under this section, the court may, on application, appoint a successor independent executor as provided by Section 154A of this code.

(c) An independent executor who defends an action for his removal in good faith, whether successful or not, shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney's fees, in the removal proceedings.

(d) Costs and expenses incurred by the party seeking removal incident to removal of an independent executor appointed without bond, including reasonable attorney's fees and expenses, may be paid out of the estate.

Added by Acts 1979, 66th Leg., p. 1751, ch. 713, Sec. 19, eff. Aug. 27, 1979. Subsec. (d) added by Acts 1987, 70th Leg., ch. 719, Sec. 1, eff. Aug. 31, 1987. Subsec. (a) amended by Acts 1989, 71st Leg., ch. 1035, Sec. 10, eff. Sept. 1, 1989; amended by Acts 1995, 74th Leg., ch. 1039, Sec. 10, eff. Sept. 1, 1995. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Sec. 149D.  Distribution of Remaining Estate Pending Judicial Discharge.

(a) On or before filing an action under Section 149E of this code, the independent executor must distribute to the beneficiaries of the estate any of the remaining assets or property of the estate that remains in the hands of the independent executor after all of the estate's debts have been paid, except for a reasonable reserve of assets that the independent executor may retain in a fiduciary capacity pending court approval of the final account.

(b)  The court may review the amount of assets on reserve and may order the independent executor to make further distributions under this section.

Added by Acts 1999, 76^th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Sec. 149E.  Judicial Discharge of Independent Executor.

(a) After an estate has been administered and if there is no further need for an independent administration of the estate, the independent executor of the estate may file an action for declaratory judgment under Chapter 37, Civil Practice and Remedies Code, seeking to discharge the independent executor from any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed.

(b)  On the filing of an action under this section, each beneficiary of the estate shall be personally served with citation, except for a beneficiary who has waived the issuance and service of citation.

(c)  In a proceeding under this section, the court may require the independent executor to file a final account that includes any information the court considers necessary to adjudicate the independent executor's request for a discharge of liability. The court may audit, settle, or approve a final account filed under this subsection.

Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Sec. 149F.  Court Costs and Other Charges Related to Final Account in Judicial Discharge.

(a)   Except as ordered by the court, the independent executor is entitled to pay from the estate legal fees, expenses, or other costs of a proceeding incurred in relation to a final account required under Section 149E of this code.

(b)  The independent executor shall be personally liable to refund any amount not approved by the court as a proper charge against the estate.

Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Sec. 149G.  Rights and Remedies Cumulative.

The rights and remedies conferred by Sections 149D, 149E, and 149F of this code are cumulative of other rights and remedies to which a person interested in the estate may be entitled under law.

Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

Sec. 194. Bonds of Personal Representatives of Estates.

Except when bond is not required under the provisions of this Code, before the issuance of letters testamentary or of administration, the recipient of letters shall enter into bond conditioned as required by law, payable to the county judge or probate judge of the county in which the probate proceedings are pending and to his successors in office. Such bonds shall bear the written approval of either of such judges in his official capacity, and shall be executed and approved in accordance with the following rules:

1. Court to Fix Penalty. The penalty of the bond shall be fixed by the judge, in an amount deemed sufficient to protect the estate and its creditors, as hereinafter provided.

2. Bond to Protect Creditors Only, When. If the person to whom letters testamentary or of administration is granted is also entitled to all of the decedent's estate, after payment of debts, the bond shall be in an amount sufficient to protect creditors only, notwithstanding the rules applicable generally to bonds of personal representatives of estates.

3. Before Fixing Penalty, Court to Hear Evidence. In any case where a bond is, or shall be, required of a personal representative of an estate, the court shall, before fixing the penalty of the bond, hear evidence and determine:

(a) The amount of cash on hand and where deposited, and the amount of cash estimated to be needed for administrative purposes, including operation of a business, factory, farm or ranch owned by the estate, and expenses of administration for one (1) year; and

(b) The revenue anticipated to be received in the succeeding twelve (12) months from dividends, interest, rentals, or use of real or personal property belonging to the estate and the aggregate amount of any installments or periodical payments to be collected; and

(c) The estimated value of certificates of stock, bonds, notes, or securities of the estate or ward, the name of the depository, if any, in which said assets are held for safekeeping, the face value of life insurance or other policies payable to the person on whose estate administration is sought, or to such estate, and such other personal property as is owned by the estate, or by one under disability; and

(d) The estimated amount of debts due and owing by the estate or ward.

4. Penalty of Bond. The penalty of the bond shall be fixed by the judge in an amount equal to the estimated value of all personal property belonging to the estate, or to the person under disability, together with an additional amount to cover revenue anticipated to be derived during the succeeding twelve (12) months from interest, dividends, collectible claims, the aggregate amount of any installments or periodical payments exclusive of income derived or to be derived from federal social security payments, and rentals for use of real and personal property; provided, that the penalty of the original bond shall be reduced in proportion to the amount of cash or value of securities or other assets authorized or required to be deposited or placed in safekeeping by order of court, or voluntarily made by the representative or by his sureties as hereinafter provided in Subdivisions 6 and 7 hereof.

5.  Agreement as to Deposit of Assets. It shall be lawful, and the court may require such action when deemed in the best interest of an estate, for a personal representative to agree with the surety or sureties, either corporate or personal, for the deposit of any or all cash, and safekeeping of other assets of the estate in a financial institution as defined by Section 201.101, Finance Code, with its main office or a branch office in this state [domestic state or national bank, trust company, savings and loan association, or other domestic corporate depository, duly incorporated] and qualified to act as a depository in this State [such] under the laws of this State or of the United States, if such deposit is otherwise proper, in such manner as to prevent the withdrawal of such moneys or other assets without the written consent of the surety, or an order of the court made on such notice to the surety as the court shall direct. No such agreement shall in any manner release from or change the liability of the principal or sureties as established by the terms of the bond.

6. Deposits Authorized or Required, When. Cash or securities or other personal assets of an estate or which an estate is entitled to receive may, and if deemed by the court in the best interest of such estate shall, be deposited or placed in safekeeping as the case may be, in one or more of the depositories hereinabove described upon such terms as shall be prescribed by the court. The court in which the proceedings are pending, upon its own motion, or upon written application of the representative or of any other person interested in the estate may authorize or require additional assets of the estate then on hand or as they accrue during the pendency of the probate proceedings to be deposited or held in safekeeping as provided above. The amount of the bond of the personal representative shall be reduced in proportion to the cash so deposited, or the value of the securities or other assets placed in safekeeping. Such cash so deposited, or securities or other assets held in safekeeping, or portions thereof, may be withdrawn from a depository only upon order of the court, and the bond of the personal representative shall be increased in proportion to the amount of cash or the value of securities or other assets so authorized to be withdrawn.

7. Representative May Deposit Cash or Securities of His Own in Lieu of Bond. It shall be lawful for the personal representative of an estate, in lieu of giving surety or sureties on any bond which shall be required of him, or for the purpose of reducing the amount of such bond, to deposit out of his own assets cash or securities acceptable to the court, with a depository such as named above or with any other corporate depository approved by the court, if such deposit is otherwise proper, said deposit to be equal in amount or value to the amount of the bond required, or the bond reduced by the value of assets so deposited.

8. Rules Applicable to Making and Handling Deposits in Lieu of Bond or to Reduce Penal Sum of Bond.

(a) A receipt for a deposit in lieu of surety or sureties shall be issued by the depository, showing the amount of cash or, if securities, the amount and description thereof, and agreeing not to disburse or deliver the same except upon receipt of a certified copy of an order of the court in which the proceedings are pending, and such receipt shall be attached to the representative's bond and be delivered to and filed by the county clerk after approval by the judge.

(b) The amount of cash or securities on deposit may be increased or decreased, by order of the court from time to time, as the interest of the estate shall require.

(c) Deposits in lieu of sureties on bonds, whether of cash or securities, may be withdrawn or released only on order of a court having jurisdiction.

(d) Creditors shall have the same rights against the representative and such deposits as are

provided for recovery against sureties on a bond.

(e) The court may on its own motion, or upon written application by the representative or by any other person interested in the estate, require that adequate bond be given by the representative in lieu of such deposit, or authorize withdrawal of the deposit and substitution of a bond with sureties therefor. In either case, the representative shall file a sworn statement showing the condition of the estate, and unless the same be filed within twenty (20) days after being personally served with notice of the filing of an application by another, or entry of the court's motion, he shall be subject to removal as in other cases. The deposit may not be released or withdrawn until the court has been satisfied as to the condition of the estate, has determined the amount of bond, and has received and approved the bond.

9. Withdrawal of Deposits When Estate Closed. Upon the closing of an estate, any such deposit or portion thereof remaining on hand, whether of the assets of the representative, or of the assets of the estate, or of the surety, shall be released by order of court and paid over to the person or persons entitled thereto. No writ of attachment or garnishment shall lie against the deposit, except as to claims of creditors of the estate being administered, or persons interested therein, including distributees and wards, and then only in the event distribution has been ordered by the court, and to the extent only of such distribution as shall have been ordered.

10. Who May Act as Sureties. The surety or sureties on said bonds may be authorized corporate sureties, or personal sureties.

11. Procedure When Bond Exceeds Fifty Thousand Dollars ($50,000). When any such bond shall exceed Fifty Thousand Dollars ($50,000) in penal sum, the court may require that such bond be signed by two (2) or more authorized corporate sureties, or by one such surety and two (2) or more good and sufficient personal sureties. The estate shall pay the cost of a bond with corporate sureties.

12. Qualifications of Personal Sureties. If the sureties be natural persons, there shall not be less than two (2), each of whom shall make affidavit in the manner prescribed in this Code, and the judge shall be satisfied that he owns property within this State, over and above that exempt by law, sufficient to qualify as a surety as required by law. Except as provided by law, only one surety is required if the surety is an authorized corporate surety; provided, a personal surety, instead of making affidavit, or creating a lien on specific real estate when such is required, may, in the same manner as a personal representative, deposit his own cash or securities, in lieu of pledging real property as security, subject, so far as applicable, to the provisions covering such deposits when made by personal representatives.

13. Bonds of Temporary Appointees. In case of a temporary administrator, the bond shall be in such sum as the judge shall direct.

14. Increased or Additional Bonds When Property Sold, Rented, Leased for Mineral Development, or Money Borrowed or Invested. The provisions in this Section with respect to deposit of cash and safekeeping of securities shall cover, so far as they may be applicable, the orders to be entered by the court when real or personal property of an estate has been authorized to be sold or rented, or money borrowed thereon, or when real property, or an interest therein, has been authorized to be leased for mineral development or subjected to unitization, the general bond having been found insufficient.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 6(b), eff. Aug. 22, 1957; Acts 1971, 62nd Leg., p. 983, ch. 173, Sec. 14, eff. Jan. 1, 1972; Acts 1979, 66th Leg., p. 1754, ch. 713, Sec. 25, eff. Aug. 27, 1979. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 31, eff. Sept. 1, 1993. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 2066), eff. Sept. 1, 1999.

Sec. 221A.  Change of Resident Agent.

(a) A personal representative may change its resident agent to accept service of process in a probate proceeding or other action relating to the estate by filing a statement of the change titled "Designation of Successor Resident Agent" with the court in which the probate proceeding is pending. The statement must contain the names and addresses of the:

(1)  personal representative;

(2)  resident agent; and

(3)  successor resident agent.

(b)  The designation of a successor resident agent made in a statement filed under this section takes effect on the date on which the statement is filed with the court.

Added by Acts 1999, 76^th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Sec. 221B.  Resignation of Resident Agent.

(a) A resident agent of a personal representative may resign as the resident agent by giving notice to the personal representative and filing with the court in which the probate proceeding is pending a statement titled "Resignation of Resident Agent" that:

(1)  contains the name of the personal representative;

(2)  contains the address of the personal representative most recently known by the resident agent;

(3)  states that notice of the resignation has been given to the personal representative and that the personal representative has not designated a successor resident agent; and

(4)  contains the date on which the notice of the resignation was given to the personal representative.

(b)  The resident agent shall send, by certified mail, return receipt requested, a copy of a resignation statement filed under Subsection (a) of this section to:

(1)  the personal representative at the address most recently known by the agent; and

(2)  each party in the case or the party's attorney or other designated representative of record.

(c)  The resignation of a resident agent takes effect on the date on which the court enters an order accepting the agent's resignation. A court may not enter an order accepting the agent's resignation unless the agent complies with the requirements of this section.

Added by Acts 1999, 76^th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Sec. 222. Removal.

(a)  Without Notice. (1) The court, on its own motion or on motion of any interested person, and without notice, may remove any personal representative, appointed under provisions of this Code, who:

(A)  Neglects to qualify in the manner and time required by law;

(B)  Fails to return within ninety days after qualification, unless such time is extended by order of the court, an inventory of the property of the estate and list of claims that have come to his knowledge;

(C)  Having been required to give a new bond, fails to do so within the time prescribed;

(D)  Absents himself from the State for a period of three months at one time without permission of the court, or removes from the State;

(E)  Cannot be served with notices or other processes because of the fact that the:

(i)  personal representative's [by reason of the fact that his] whereabouts are unknown;

(ii)  personal representative [, or by reason of the fact that he] is eluding service; or

(iii)  personal representative is a nonresident of this state who does not have a resident agent to accept service of process in any probate proceeding or other action relating to the estate; or

(F)  Has misapplied, embezzled, or removed from the State, or is about to misapply, embezzle, or remove from the State, all or any part of the property committed to the personal representative's care.

(2)  The court may remove a personal representative under Paragraph (F), Subdivision (1), of this subsection only on the presentation of clear and convincing evidence given under oath.

(b) With Notice. The court may remove a personal representative on its own motion, or on the complaint of any interested person, after the personal representative has been cited by personal service to answer at a time and place fixed in the notice, when:

(1) Sufficient grounds appear to support belief that he has misapplied, embezzled, or removed from the state, or that he is about to misapply, embezzle, or remove from the state, all or any part of the property committed to his care;

(2) He fails to return any account which is required by law to be made;

(3) He fails to obey any proper order of the court having jurisdiction with respect to the performance of his duties;

(4) He is proved to have been guilty of gross misconduct, or mismanagement in the performance of his duties;

(5) He becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes incapable of properly performing the duties of his trust;

(6) As executor or administrator, he fails to make a final settlement within three years after the grant of letters, unless the time be extended by the court upon a showing of sufficient cause supported by oath; or

(7) As executor or administrator, he fails to timely file the notice required by Section 128A of this code.

(c) Order of Removal. The order of removal shall state the cause thereof. It shall require that any letters issued to the one removed shall, if he has been personally served with citation, be surrendered, and that all such letters be cancelled of record, whether delivered or not. It shall further require, as to all the estate remaining in the hands of a removed person, delivery thereof to the person or persons entitled thereto, or to one who has been appointed and has qualified as successor representative.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 11, eff. June 12, 1969. Subsec. (b) amended by Acts 1989, 71st Leg., ch. 1035, Sec. 11, eff. Sept. 1, 1989; Subsecs. (a), (b)

amended by Acts 1993, 73rd Leg., ch. 905, Sec. 11, eff. Sept. 1, 1993; Subsecs. (b), (c) amended by Acts 1993, 73rd Leg., ch. 957, Sec. 37, eff. Sept. 1, 1993; Subsecs. (a), (b) amended by Acts 1995, 74th Leg., ch. 1039, Sec. 13, eff. Sept. 1, 1995. Amended by Acts 1999, 76^th Leg., ch. ___ (HB 1852), eff. Sept. 1, 1999.

Sec. 270. Liability of Homestead for Debts.

The homestead shall not be liable for the payment of any of the debts of the estate, except for:

(1)  the purchase money thereof; [,]

(2)  the taxes due thereon; [, or]

(3)  work and material used in constructing improvements thereon if the requirements of Section 50(a)(5), Article XVI, Texas Constitution, are met;

(4)  an owelty of partition imposed against the entirety of the property by court order or by a written agreement of the parties to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding;

(5)  the refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses, if the homestead is a family homestead, or from the tax debt of the decedent;

(6)  an extension of credit on the homestead if the requirements of Section 50(a)(6), Article XVI, Texas Constitution, are met; or

(7)  a reverse mortgage [; and in this last case only when the work and material are contracted for in writing, with the consent of both spouses given in the same manner as required in making a sale and conveyance of the homestead].

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 35, ch. 24, Sec. 1, eff. Aug. 27, 1979. Amended by Acts 1999, 76^th Leg., ch. ____ (HB 1852), eff. Sept. 1, 1999.

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, 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 the principal amount of and accrued interest on delinquent child support and child support arrearages that have been confirmed and reduced to money judgment, as determined under Subchapter F, Chapter 157, Family Code.

Class  5.  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; or Subchapter I, Chapter 452, Transportation Code.

Class 6