Office of House Bill AnalysisH.B. 1852
By: Thompson
Judicial Affairs


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.  In its opinion, many revisions were necessary as a
result of court rulings.  Some of the revisions were intended as general
improvements to the code and others were simply conforming changes that
resulted from changes to other codes.  As in the past, the Real Estate,
Probate and Trust Law section of the State Bar 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.  Prior
to the 76th Legislature, it was unclear whether a will could have been
probated as muniment of title after four years.  Nor was it clear whether a
will could have been probated as muniment of title for other causes, even
if there were no debts. 

Release of Independent Executors.  Prior to the 76th Legislature, state law
did not prescribe a procedure for independent executors of estates to
obtain a release.  These independent representatives were the only
fiduciaries without such a remedy.  As such, an executor could have been
forced by beneficiaries, via litigation, to distribute all assets and
defend any subsequent lawsuits with the executor's own money.  Even if the
executor ultimately had won a suit brought by beneficiaries, the executor
would have had to look to the beneficiaries for payment.  If the
beneficiaries had spent all of the estate's funds the executor would have
had no remedy. 

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. Prior to the 76th Legislature, it was necessary for
conforming updates to be made to the Texas Probate Code's homestead
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. 


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 1.  Amends Section 10B, Texas Probate Code, to provide that proof
of filing the will contest or proceeding when a party presents a subpoena
for the production of all communication or records from a decedent that
relate to the decedent's mental or testamentary capacity is by filestamped,
rather than certified, copy. 

SECTION 2.  Amends Part 4, Chapter V, Texas Probate Code, by adding Section
128B, as follows: 

before the probate of a will, notice must be given by service of process to
all of 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 3.  Amends Section 149A(b), Texas Probate Code, to make a
nonsubstantive change. 

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

SECTION 5.  Amends Section 149C(a), Texas Probate Code, to make a
nonsubstantive change. 

SECTION 6.  Amends Part 4, Chapter VI, Texas Probate Code, by adding
Sections 149D, 149E, 149F, and 149G, as follows: 

(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. 

independent executor, upon final settlement of the administration, to file
an action seeking discharge from liability for fully disclosed

(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. 

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

SECTION 7.  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 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 8.  Amends Section 222(a), Texas Probate Code, 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 9.  Amends Section 270, Texas Probate Code, by adding a list of
circumstances under which a lien is valid on a homestead. 

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 7 of this
Act prospective. 

SECTION 12. Makes the application of the changes made by SECTION 8 of this
Act prospective. 

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

SECTION 14.  Effective date: September 1, 1999.

SECTION 15.  Emergency clause.