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. 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 4 years at the time the application is
filed.  While non-substantive 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 4
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 his 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. 

HB 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 89A(a), Texas Probate Code, by removing the
requirement that a social security number be filed with an application for
probate.  Requires 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 debts. will to state 

SECTION 2.  Amends Section 89B(b), Texas Probate Code, to make conforming
and nonsubstantive changes. 

SECTION 3.  Amends Part 4, Chapter VI, Texas Probate Code, by adding
sections 149D, 149E, 149F and 149G as follows: 

149D (a) allows the executor to seek court approval of his accounting if he
distributes to the beneficiaries all assets or properties remaining except
a reserve. 

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

Authorizes an independent executor, upon final settlement of the
administration, to file a final account and request discharge for fully
disclosed transactions.  This section also outlines the contents of the
verified final account of the administration. 

(b) Requires the executor to send notice of the final account and
prescribes the  contents and method of distribution required for the

(c) Authorizes a waiver of the above-referenced notice by those entitled to
receive it. 

(d) Requires the court to approve the  final accounting and releases the
executor from liability if no objection to the account is entered by an
interested party within time frame outlined in Subsection (b). 

(e) Defines the procedure the court must follow if an objection to the
final accounting is filed by an interested party. 

(f) Requires any assets remaining after settlement of the final account to
be distributed by the court to the beneficiaries. 

Authorizes the court to award fees or costs associated with the final
account to either the executor or beneficiaries. 

(b) Requires that upon approval of the final account by the court, the
executor's fees and expenses to be charged to the estate as administrative

(c) Authorizes a partial payment of the executors expenses in certain

(d) allows the executor to pay certain fees related to the final account
from the estate. 

(e) Requires the executor to be personally liable for the refund to the
estate for any charge deemed improper by the court. 

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

SECTION 4.  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 Subsections (a) and (b) of this section. 

SECTION 5.  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 6.  Amends Section 270, Texas Probate Code, by adding a list of
circumstances under which a lien is valid on a homestead. 

SECTION 7.  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 8.  Makes the application of the changes made by SECTION 1 and
SECTION 2 of this Act prospective.  

SECTION 9.  Makes the application of the changes made by SECTION 4 of this
Act prospective. 

SECTION 10. Makes the application of the changes made by SECTION 5 of this
Act prospective. 

SECTION 11.  Makes the application of the changes made by SECTION 7 if this
Act prospective. 

SECTION 12.  Makes the application of the changes made by the Act, except
as outlined in SECTIONS, 8, 9, and 10, and 11, prospective. 

SECTION 13.  Effective date: September 1, 1999

SECTION 14.  Emergency clause.