HBA-RBT C.S.H.B. 1852 76(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 1852
By: Thompson
Judicial Affairs
5/5/1999
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

Historically the Real Estate, Probate and Trust Law section of the State
Bar of Texas has identified provisions of the Texas Probate Code that are
in need of revision. Many revisions are necessary as a result of court
rulings, some are intended as general improvements to the code and others
are simply conforming changes that result from changes to other codes.  As
in the past, the Real Estate, Probate and Trust Law section of the State
Bar has identified the following revisions for the 76th Legislature. 

Muniment of Title.  When a will is probated as a "muniment of title" the
will itself is sufficient evidence of title.  This procedure eliminates the
need for an administrator or an administration.  The transfer is carried
out without a lengthy, costly probate process.  For example, a wife whose
deceased husband's will has been probated as muniment of title may simply
present the will and order admitting it to probate when claiming assets
such as bank accounts or stock certificates.  Not only is this process
easier on beneficiaries,  it is also the only solution available when a
decedent has been dead longer than four years at the time the application
is filed.  While nonsubstantive revisions to the Probate Code during the
75th Legislature clarified the procedure for muniment of title, some
sections of the code were not completely updated with the changes.  As
such, it is currently unclear if a will can be probated as muniment of
title after four years.  Nor is it clear if a will can be probated as
muniment of title for other causes, even if there are no debts. 

Release of Independent Executors.  Currently, state law does not prescribe
a procedure for independent executors of estates to obtain a release.
These independent representatives are the only fiduciaries without such a
remedy.  As such, an executor can be forced by beneficiaries, via
litigation, to distribute all assets and defend any subsequent lawsuits
with executor's own money. Even if the executor ultimately wins a suit
brought by beneficiaries, the executor must look to the beneficiaries for
payment.  If the beneficiaries have spent all of the estate's funds the
executor has no remedy.  On the other hand, changes to the law must be
drafted to avoid allowing an unscrupulous executor to demand a release
before making distributions from the estate. 

Liability of Homestead for Debts.  In recent years there have been several
revisions to state law regarding the liability of homesteads for debt.  The
most notable, of course, was home equity lending legislation passed by the
75th Legislature. It is now necessary for conforming updates to be made to
the Texas Probate Code's homestead provisions. 

Allocation of Interest.   Currently interest on estate taxes is charged to
the principal rather than to interest income.  This practice is contrary to
general accounting principles and often results in an unfair allocation
between beneficiaries.  To prevent such unfair allocations, a change is
necessary to allow the administrator the discretion to allocate the
interest as is just and equitable. 

C.S.H.B. 1852 simplifies the process for the administration of a decedent's
estate by clarifying the conditions under which a will may be probated as
muniment of title.  This bill  also outlines the procedures for releasing
independent executors from fully disclosed transactions.  Furthermore, this
bill conforms the Texas Probate Code to the homestead liability laws of the
State of  Texas.  Finally this bill authorizes the administrator to
allocate interest due on the estate between income and principal. 


 RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Part 4, Chapter V, Texas Probate Code, by adding Section
128B, as follows: 

Sec.  128B.  NOTICE WHEN WILL PROBATED AFTER FOUR YEARS.  Provides that
before the probate of a will, notice must be given by service of process to
all al the testator's heirs whose address can be ascertained by the
applicant with reasonable diligence, unless the heir has provided the court
with an affidavit stating that the heir does not object to the offer of
probate.  Sets forth the required contents of the notice.  Provides for the
appointment of an attorney ad litem for those heirs whose address cannot be
ascertained.  In the case of multiple wills offered for probate, this
section applies to a beneficiary of the probated will instead of the
testator's heirs. 

SECTION 2.  Amends Section 149A(b), Texas Probate Code, to make a
nonsubstantive change. 

SECTION 3.  Amends Section 149B(a), Texas Probate Code, to make a
nonsubstantive change. 

SECTION 4.  Amends Section 149C(a), Texas Probate Code, to make a
nonsubstantive change. 

SECTION 5.  Amends Part 4, Chapter VI, Texas Probate Code, by adding
Sections 149D, 149E, 149F, and 149G as follows: 

Sec. 149D.  DISTRIBUTION OF REMAINING ESTATE PENDING JUDICIAL DISCHARGE.
(a) Provides that 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, on or before filing an action
under Section 149E. 

(b) Authorizes the court to review the amount on reserve and order further
distributions if necessary. 

Sec. 149E.  JUDICIAL DISCHARGE OF INDEPENDENT EXECUTOR.  (a) Authorizes an
independent executor, upon final settlement of the administration, to file
a final account and request discharge for fully disclosed transactions.  

(b) Requires each beneficiary of the estate to be personally served with
citation, except for a beneficiary who has waived the issuance and service
of citation. 

(c) Authorizes the court to 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.  Authorizes the court to audit, settle, or approve a final
account filed under this subsection. 

Sec. 149F.  COURT COSTS AND OTHER CHARGES RELATED TO FINAL ACCOUNT IN
JUDICIAL DISCHARGE.  Entitles the independent executor 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.  Requires the
independent executor to be personally liable to refund any amount not
approved by the court as a proper charge against the estate.  

Sec.149G.  RIGHTS AND REMEDIES CUMULATIVE.  States that remedies outlined
in these sections are in addition to any other remedies granted to the
beneficiaries.   

SECTION 6.  Amends Part 3, Chapter VII, Texas Probate Code, by adding
Sections 221A and  2221B as follows: 

Sec.  221A.  CHANGE OF RESIDENT AGENT.  (a) Authorizes a personal
representative to change its resident agent to accept process in probate or
other court proceedings, prescribes the contents of the statement of the
change and requires the statement to be filed with the court. 

(b) States that the effective date of the designation is the date it is
filed with the court.  

Sec. 221B.  RESIGNATION OF RESIDENT AGENT. (a) Authorizes a resident agent
to resign as resident agent upon giving notice of its resignation to the
personal representative and filing the statement of resignation with the
court.  Specifies the contents of the resignation statement. 

(b) Lists the parties required to receive a copy of the resignation
statement and the process by which the copies must be served. 

(c) States that the effective date of the resignation is the date on which
the court enters the order accepting the resignation and prohibits the
court from entering the order until the agent has complied with the
requirements of this section. 

SECTION 7.  Amends Section 222,  Texas Probate Code, by amending subsection
(a)(1)(E) to authorize removal of a personal representative whose
whereabouts are unknown, avoids service, or is a nonresident and does not
have a resident agent to accept service. 

SECTION 8.  Amends Section 270, Texas Probate Code, by adding a list of
circumstances under which a lien is valid on a homestead. 

SECTION 9.  Amends Section 378B(a), Texas Probate Code, to require interest
due on estate taxes to be allocated between the income and the principal of
the estate at the discretion of the executor. 

SECTION 10.  Amends Section 37.005, Civil Practice and Remedies Code, to
include an independent executor or administrator among those authorized to
have a declaration of rights in respect to a trust or estate, including
regarding fiduciary fees and the settling of accounts. 

SECTION 11.  Makes the application of the changes made by SECTION 6 of this
Act prospective. 

SECTION 12. Makes the application of the changes made by SECTION 7 of this
Act prospective. 

SECTION 13.  Makes the application of the changes made by SECTION 9 of this
Act prospective. 

SECTION 14.  Makes the application of the changes made by the Act, except
as outlined in SECTIONS 11, 12, and 13 prospective. 

SECTION 15.  Effective date: September 1, 1999

SECTION 16.  Emergency clause.

COMPARISON OF ORIGINAL TO SUBSTITUTE

The substitute differs from the original by deleting SECTION 1 of the
original, which amended Section 89A(a), Texas Probate Code, to remove the
requirement that a social security number be filed with an application for
probate and requiring an application to probate a will as muniment of title
to state whether  there is a reason why no administration of the estate is
necessary, even though there are no unpaid debts. 

The substitute differs from the original by deleting SECTION 2 of the
original, which amended Section 89B(a), Texas Probate Code, which made
conforming and nonsubstantive changes. 

 The substitute differs from the original by deleting SECTION 8 of the
original which was rendered unnecessary by the aforementioned deletions. 

The substitute differs from the original by adding SECTIONS 3 and 4 to make
nonsubstantive changes. 

The substitute differs from the original by adding SECTION 10 in the
substitute.  Please see the Section-by-Section Analysis portion of this
document. 

The substitute differs from original by replacing SECTION 3 of the original
with SECTION 5 of the substitute.  Both SECTIONS relate to distribution of
the estate, discharge of the independent executor, court costs, and rights
and remedies.  The substitute has new Section titles and modifies the
language of the original.  In Section 149E the substitute requires each
beneficiary of the estate to be personally served with citation unless that
service is waived, rather than the original's requirement that the
beneficiaries be sent notice.  In addition, the substitute authorizes the
court to audit, settle, or approve a final account, rather than requiring
the court to approve the final account absent an objection.  Section 149F
of the substitute entitles the independent executor 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, rather than the original's
requirement of allowing the executor's fees and expenses to be charged to
the estate as administrative expenses.  Makes conforming and nonsubstantive
changes. 

The substitute differs from the original by redesignating SECTIONS 4, 5, 6,
7, 9, 10, 11, 12, 13, and 14, as SECTIONS 6, 7, 8, 9, 11, 12, 13, 14, 15,
and 16, respectively.