THE TEXAS PROBATE CODE
Attorneys’ Quick Electronic Reference


Also Including Chapter 166 of the Texas Health & Safety Code

Index Created by Thomas Fisher
Quick Index Created by the Honorable Steve M. King
Thanks to William D. Pargaman, of Brown McCarroll, L.L.P. for his 2009 and 2011 Legislative Updates.
Formatted and Hyperlinked by Michael Koenecke
(mike@koeneckelaw.com)


Included text is what was published by the Texas Legislature and made freely available. I have only formatted it, and assume no responsibility for the accuracy of the contents.


Version 1.8
January 18, 2012




Probate Code Quick Index
Decedents’ Estates

 

General Provisions

 

A.      Def’ns (3), Juris (5), Venue (6, 8), Rule for Costs (12) Dep’n Wr. Q’s (22), Bill of Rev. (31)

B.      Citations, Notices & Writs (33), Service on Attorney (34), Lock Box Access (36B)

C.      HEIRSHIP: Descent & Distribution (37), Disclaimer (37A), Assignment (37B), Inheritance Rights: Adopted Children (40), Half-Blood (41), Per Capita/Per Stirpes, (43) Advancements (44), Community Property (45), Joint Tenancies (46), Survival Req (47)

D.     Proceedings (48), Standing (49), Affidavit of Heirship (Statutory Form) (52A)

E.      WILLS: Execution (57), Powers of Appointment (58C) Requisites (59), Revocation (63), Forfeiture (64), Pretermitted Child (67), Anti-Lapse (68), Non-Exoneration of Liens (71A)

F.      Proceedings Before Death (72), Default (73, 74), Compel Prod’n of Will, (75) Priority (77), Persons Disqualified (78), Proof (84), Lost Will (85, 128B), Muniment (89)

G.      Contestability Period (93), Foreign Wills (95), Suits by Foreign Administrators (107A)

H.     Emergency Intervention (108)

I.       Citation & Notice (128), Notice to Char. Devisee (128A), Notice after 4 Years (128B)

 

Types of Administration

 

J.      Temp. Adm’n (131), Pending Contest (132) Small Est. (137), Order of No Adm’n (139)

K.      Ind Adm’n (145), Powers (145A - 145C) Claims (146) Enforce by Suit v. Exor (147)

L.      Bonding Heirs (148), Bonding Ind. Executor (149), Compelled Accounting (149A), Compelled Distrib’n (149B), Removal (149C), Jud’l Discharge (149C), Partition (150), Closing Ind Admn by Affidavit or Notice (151), Closing Ind Admn by Application (152)

M.     Executors & Administrators - Appointment/Letters (178), Order of No Admn (180), Oath & Bond (189), Safekeeping (194(4))

Mc.   Revoc’n (220), Resign’n (221), Chng Res Agt (221A)Removal (222), Reinstatement (222A)

N.     Powers (230), % Fees (233), Abandon Prop (234), Compensat’n, Expenses, Costs (241), Will Contest - Atty’s Fees (243)

 

Proceedings During Administration

 

O.     Inventory & Appraisement (248), List of Claims (251), Correction (258)

P.      Withdrawing Estates (262), Homestead (270), Exempt Property (280)

Q.     Claims: Notices (294), Claims (298), Foreclosure (306), Order of Payment (320), Classif’n (322), Apportionment of Taxes (322A), Abatement (322B), Borrowing $ (329)

R.      Sales (331), Application (341), Order (346), Purchase by PR (352), Report (353), Hiring & Renting (359), Mineral Leases (367)

S.      Partition & Distribution (373), Investments & Loans (389), Stocks (398A)

T.      Accountings: Annual (399), Closing (404), Final Account (405)

U.      Payment to Comptroller (427) /Repeal of Laws (434)

 

Non-Testamentary Alternatives

 

V.      Multi-Party Accts (436), Ownership During Lifetime (438), Convenience Accts (438A), JTWROS (439), Uniform Acct Form (439A) Trust Accts (447), POD Accounts (450), Community Property W/ROS (451)

W.     Effect of Divorce: Living Wills, N/Test’y Xfers (471 - 473), Durable Power of Attorney (481)


Probate Code Quick Index
Guardianship


General Provisions

 

1.      Definitions (601)

2.      Juris’n (605), SPC Xfer (608), SAPCR (609) Venue (610), Transfer between Counties (612 - 619), Rule for Costs (622)

3.      Service and Notice (632), ‘Laundry List’ Notices (633) Affidavit of Notice (633(d-1))

4.      Trial and Hearing (641), Ad Litems (645, 646), Limited Immunity (645A), Retained Counsel (646A), Ct. Visitors (648), Court Investigator (648A), Location of Hearing (652)

5.      Letters (659), Renewal of Letters (659) Compensation (665), Prof’l Svcs (665A), Attorneys Fees (665B), Contingent Fees (665D), Dual Compensation (665D), Expenses (666), Costs of Removal (668), Court Costs & Ad Litem Fees (669), Compensation, Costs (670) Judge’s Duty (671), Annual Determination (672), Liability of Guardian (673), Immunity of Guardianship Program (673)

 

Appointment & Qualification

 

6.      Priority (676, 677), Parental Designation (677A) Pre-Need Designation (679), Selection by Minor (680), Persons Disqualif’d (681), Appl’n-Contents (682), Court - Init’n (683), Findings (683, 693), Doctor’s Letter, DMR, IME (687) Rest’n (694A), Succ Gdns (695), DADS as Succ’r Grdn (695(c)), Pub Gdns (696A). Priv Prof’l Grdns (696), Reg’n (697), List (697A), Certif’n (697B), Crim. Hist. Record Info. (698)

7.      Qualification: Bond & Oath (699), Waiver of Bond (702), Types of Bonds  (702A)

 

Administration

 

8.      Inventory, Appraisement (729), List of Claims (730), Correction (736)

9.      Annual Accounts (741), Guardian of Person Reports (743), Penalties (744)

10.    Settlement, Accounting & Discharge (745), Funeral Exp & Other Debts (746), Heirship within Guardianship (748), Account for Final Settlement (749), Removal from Active Docket (750), Citation on Final Acct (751), Closing of Estate (752)

11.    Revocation (759), Resignation (760), Removal (761), Notice (761(a-1)), Reinstatement (762)

12.    Genl Duties/Powers (767), Meds (770A), Voluntary In-Patient Care (770B), Specif. Duties/Powers (771), Abandon Prop (774), Commission (775) Ratif’n of Expend’trs/ Monthly Allowance (776), Family Maintenance (776A)

13.    Borrowing $/Home Eq. Loans (781), Claims, Ntc to Cred’s (783), Priority of Payt (805)

14.    Sales (811), Application (820), Order of Sale (825), Report of Sale (832)

15.    Hiring, Renting (839), Mineral Leases (847), Partition (853), Investments & Loans (855), Investment and Retention Plan (855A)

16.    Gifts: Tax-Motivated (865) Gov’t Benef (865(a,b)), Management Trusts (867), Trustee Comp’n (868A), Pooled Trusts (868C)

 

Special Proceedings

 

17.    Temp Guardianship (875), Non-Resident Guardian (881) Non-Resident Ward (882), Incapacitated Spouse/ Community Administrator (883), Receivership (885)

18.    Payt to Ct Reg’y (887), Sale of Minor’s Int (889), Home Eq. Loans (w/ or w/o Gdn) (889A), Sale of Adlt Ward’s Int (890), Interst Grdnship (891), For Grdnship (892), Appr Forum (895)

19.    Arts, Entertainment & Sports Contracts (901)

20.    Pooled Trust Subaccounts (910)

21.    Adv Dirs – Genl (166.001), Dir Physicians (166.031), OOH-DNR (166.081), MPOA (166.151)


TABLE OF CONTENTS

 

THE TEXAS PROBATE CODE

 

Probate Code Quick Index

 

TABLE OF CONTENTS

 

Chapter I. General Provisions

Sec. 1. Short Title

Sec. 2. Effective Date and Application

Sec. 3. Definitions and Use of Terms

Sec. 4A. General Probate Court Jurisdiction; Appeals

Sec. 4B. Matters Related to Probate Proceeding

Sec. 4C. Original Jurisdiction for Probate Proceedings

Sec. 4D. Jurisdiction of Contested Probate Proceeding in County with No Statutory Probate Court or Statutory County Court

Sec. 4E. Jurisdiction of Contested Probate Proceeding in County with No Statutory Probate Court

Sec. 4F. Exclusive Jurisdiction of Probate Proceeding in County with Statutory Probate Court

Sec. 4G. Jurisdiction of Statutory Probate Court with Respect to Trusts and Powers of Attorney

Sec. 4H. Concurrent Jurisdiction with District Court.

Sec. 5. Jurisdiction with Respect to Probate Proceedings

Sec. 5B. Transfer to Statutory Probate Court of Proceeding Related to Probate Proceeding

Sec. 5C. Actions to Collect Delinquent Property Taxes

Sec. 6. Venue: Probate of Wills and Granting of Letters Testamentary and of Administration

Sec. 6A. Venue: Action Related to Probate Proceeding in Statutory Probate Court

Sec. 6B. Venue: Certain Actions Involving Personal Representative

Sec. 6C. Venue: Heirship Proceedings

Sec. 6D. Venue: Certain Actions Involving Breach of Fiduciary Duty

Sec. 8. Concurrent Venue In Probate Proceeding

Sec. 8A. Transfer of Venue In Probate Proceeding

Sec. 8B. Validation of Prior Proceedings

Sec. 9. Defects in Pleading

Sec. 10. Persons Entitled to Contest Proceedings

Sec. 10A. Necessary Party

Sec. 10B. Communications or Records Relating to Decedent’s Condition Before Death

Sec. 10C. Effect of Filing or Contesting Pleading

Sec. 11. Applications and Other Papers to Be Filed with Clerk

Sec. 11A. Exemption from Probate Fees for Estates of Certain Military Servicemembers

Sec. 11B. Exemption from Probate Fees for Estates of Certain Law Enforcement Officers, Firefighters, and Others

Sec. 12. Costs and Security Therefor

Sec. 13. Judge’s Probate Docket

Sec. 14. Claim Docket

Sec. 15. Case Files

Sec. 16. Probate Fee Book

Sec. 17. Maintaining Records in Lieu of Record Books

Sec. 17A. Index

Sec. 18. Use of Records as Evidence

Sec. 19. Call of the Dockets

Sec. 20. Clerk May Set Hearings

Sec. 21. Trial by Jury

Sec. 22. Evidence

Sec. 23. Decrees

Sec. 24. Enforcement of Orders

Sec. 25. Executions

Sec. 26. Attachments for Property

Sec. 27. Enforcement of Specific Performance

Sec. 28. Personal Representative to Serve Pending Appeal of Appointment

Sec. 29. Appeal Bonds of Personal Representatives

Sec. 31. Bill of Review

Sec. 32. Common Law Applicable

Sec. 33. Issuance, Contents, Service, and Return of Citation, Notices, and Writs in Probate Matters

Sec. 34. Service on Attorney

Sec. 34A. Attorneys Ad Litem

Sec. 35. Waiver of Notice

Sec. 36. Duty and Responsibility of Judge

Sec. 36B. Examination of Documents or Safe Deposit Box with Court Order

Sec. 36C. Delivery of Document with Court Order

Sec. 36D. Examination of Document or Safe Deposit Box Without Court Order

Sec. 36E. Delivery of Document Without Court Order

Sec. 36F. Restriction on Removal of Contents of Safe Deposit Box

 

Chapter II. Descent and Distribution

Sec. 37. Passage of Title upon Intestacy and under a Will

Sec. 37A. Means of Evidencing Disclaimer or Renunciation of Property or Interest Receivable from a Decedent

Sec. 37B. Assignment of Property Received from a Decedent

Sec. 37C. Satisfaction of Devise

Sec. 38. Persons Who Take upon Intestacy

Sec. 39. No Distinction Because of Property’s Source

Sec. 40. Inheritance by and from an Adopted Child

Sec. 41. Matters Affecting and Not Affecting the Right to Inherit

Sec. 42. Inheritance Rights of Children

Sec. 43. Determination of per Capita and per Stirpes Distribution

Sec. 44. Advancements

Sec. 45. Community Estate

Sec. 46. Joint Tenancies

Sec. 47. Requirement of Survival by 120 Hours

Sec. 47A. Marriage Voidable Based on Mental Incapacity

 

Chapter III. Determination of Heirship

Sec. 48. Proceedings to Declare Heirship.

Sec. 49. Who May Institute Proceedings to Declare Heirship

Sec. 50. Notice

Sec. 51. Transfer of Proceeding When Will Probated or Administration Granted

Sec. 52. Recorded Instruments as Prima Facie Evidence

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

Sec. 53. Evidence; Unknown Parties and Incapacitated Persons

Sec. 53A. Order for Genetic Testing Authorized

Sec. 53B. Results of Genetic Testing; Admissibility

Sec. 53C. Use of Genetic Testing Results in Certain Proceedings to Declare Heirship

Sec. 53D. Additional Orders Authorized

Sec. 53E. Proceedings and Records Public

Sec. 54. Judgment

Sec. 55. Effect of Judgment

Sec. 56. Filing of Certified Copy of Judgment

 

Chapter IV. Execution and Revocation of Wills

Sec. 57. Who May Execute a Will

Sec. 58. Interests Which May Pass under a Will

Sec. 58a. Devises or Bequests to Trustees

Sec. 58b. Devises and Bequests That Are Void

Sec. 58c. Exercise of Power of Appointment

Sec. 59. Requisites of a Will

Sec. 59A. Contracts Concerning Succession

Sec. 60. Exception Pertaining to Holographic Wills

Sec. 61. Bequest to Witness

Sec. 62. Corroboration of Testimony of Interested Witness

Sec. 63. Revocation of Wills

Sec. 64. Forfeiture Clause

Sec. 67. Pretermitted Child

Sec. 68. Prior Death of Legatee

Sec. 69. Will Provisions Made Before Dissolution of Marriage

Sec. 69A. Changing Wills

Sec. 70A. Increase in Securities; Accessions

Sec. 71. Deposit of Will with Court During Testator’s Lifetime

Sec. 71A. No Right to Exoneration of Debts; Exception

 

Chapter V. Probate and Grant of Administration

 

PART 1. ESTATES OF DECEDENTS

Sec. 72. Proceedings Before Death; Administration in Absence of Direct Evidence of Death; Distribution; Limitation of Liability; Restoration of Estate; Validation of Proceedings

Sec. 73. Period for Probate

Sec. 74. Time to File Application for Letters Testamentary or Administration

Sec. 75. Duty and Liability of Custodian of Will

Sec. 76. Persons Who May Make Application

Sec. 77. Order of Persons Qualified to Serve

Sec. 78. Persons Disqualified to Serve as Executor or Administrator

Sec. 79. Waiver of Right to Serve

Sec. 80. Prevention of Administration

Sec. 81. Contents of Application for Letters Testamentary

Sec. 82. Contents of Application for Letters of Administration

Sec. 83. Procedure Pertaining to a Second Application

Sec. 84. Proof of Written Will Produced in Court

Sec. 85. Proof of Written Will Not Produced in Court

Sec. 87. Testimony to Be Committed to Writing

Sec. 88. Proof Required for Probate and Issuance of Letters Testamentary or of Administration

Sec. 89. Action of Court on Probated Will

Sec. 89A. Contents of Application for Probate of Will as Muniment of Title

Sec. 89B. Proof Required for Probate of a Will as a Muniment of Title

Sec. 89C. Probate of Wills as Muniments of Title

Sec. 90. Custody of Probated Wills

Sec. 91. When Will Not in Custody of Court

Sec. 92. Period for Probate Does Not Affect Settlement

Sec. 93. Period for Contesting Probate

Sec. 94. No Will Effectual until Probated

 

PART 2. PROCEDURE PERTAINING TO FOREIGN WILLS

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

Sec. 96. Filing and Recording Foreign Will in Deed Records

Sec. 97. Proof Required for Recording in Deed Records

Sec. 98. Effect of Recording Copy of Will in Deed Records

Sec. 99. Recording in Deed Records Serves as Notice of Title

Sec. 100. Contest of Foreign Wills

Sec. 101. Notice of Contest of Foreign Will

Sec. 102. Effect of Rejection of Will in Domiciliary Proceedings

Sec. 103. Original Probate of Foreign Will in this State

Sec. 104. Proof of Foreign Will in Original Probate Proceeding

Sec. 105. Executor of Will Probated in Another Jurisdiction

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

Sec. 106. When Foreign Executor to Give Bond

Sec. 107. Power of Sale of Foreign Executor or Trustee

Sec. 107A. Suit for the Recovery of Debts by a Foreign Executor or Administrator

 

PART 3. EMERGENCY INTERVENTION PROCEEDINGS; FUNERAL AND BURIAL EXPENSES

Sec. 108. Time to File Emergency Application

Sec. 109. Eligible Applicants for Emergency Intervention

Sec. 110. Requirements for Emergency Intervention

Sec. 111. Contents of Emergency Intervention Application for Funeral and Burial Expenses

Sec. 112. Contents for Emergency Intervention Application for Access to Personal Property

Sec. 113. Orders of Emergency Intervention

Sec. 114. Termination

Sec. 115. Limitation on Right of Surviving Spouse to Control Deceased’s Burial or Cremation

 

PART 4. CITATIONS AND NOTICES

Sec. 128. Citations with Respect to Applications for Probate or for Issuance of Letters

Sec. 128A. Notice to Certain Beneficiaries after Probate of Will

Sec. 128B. Notice to Heirs on Application to Probate Will after Four Years

Sec. 129. Validation of Prior Modes of Service of Citation

Sec. 129A. Service by Publication or Other Substituted Service

 

Chapter VI. Special Types of Administration

 

PART 1. TEMPORARY ADMINISTRATION IN THE INTEREST OF ESTATES OF DEPENDENTS

Sec. 131A. Appointment of Temporary Administrators

Sec. 132. Temporary Administration Pending Contest of a Will or Administration

Sec. 133. Powers of Temporary Administrators

Sec. 134. Accounting

Sec. 135. Closing Temporary Administration

 

PART 2. (REPEALED)

 

PART 3. SMALL ESTATES

Sec. 137. Collection of Small Estates upon Affidavit

Sec. 138. Effect of Affidavit

Sec. 139. Application for Order of No Administration

Sec. 140. Hearing and Order upon the Application

Sec. 141. Effect of Order

Sec. 142. Proceeding to Revoke Order

Sec. 143. Summary Proceedings for Small Estates after Personal Representative Appointed

 

PART 4. INDEPENDENT ADMINISTRATION

Sec. 145. Independent Administration

Sec. 145A. Granting Power of Sale By Agreement

Sec. 145B. Independent Executors May Act Without Court Approval.

Sec. 145C. Power of Sale of Estate Property.

Sec. 146. Payment of Claims and Delivery of Exemptions and Allowances.

Sec. 147. Enforcement of Claims by Suit

Sec. 148. Requiring Heirs to Give Bond

Sec. 149. Requiring Independent Executor to Give Bond

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. 150. Partition and Distribution or Sale of Property Incapable of Division

Sec. 151. Closing Independent Administration by Closing Report or Notice of Closing Estate

Sec. 152. Closing Independent Administration upon Application by Distributee

Sec. 153. Issuance of Letters

Sec. 154. Powers of an Administrator Who Succeeds an Independent Executor

Sec. 154A. Court-appointed Successor Independent Executor

 

PART 5. ADMINISTRATION OF COMMUNITY PROPERTY

Sec. 155. No Necessity for Administration of Community Property

Sec. 156. Liability of Community Property for Debts

Sec. 160. Powers of Surviving Spouse When No Administration Is Pending

Sec. 168. Accounting by Survivor

Sec. 176. Remarriage of Surviving Spouse

Sec. 177. Distribution of Powers among Personal Representatives and Surviving Spouse

 

Chapter VII. Executors and Administrators

 

PART 1. APPOINTMENT AND ISSUANCE OF LETTERS

Sec. 178. When Letters Testamentary or of Administration Shall Be Granted

Sec. 179. Opposition to Grant of Letters of Administration

Sec. 180. Effect of Finding That No Necessity for Administration Exists

Sec. 181. Orders Granting Letters Testamentary or of Administration

Sec. 182. When Clerk Shall Issue Letters

Sec. 183. What Constitutes Letters

Sec. 186. Letters or Certificate Made Evidence

Sec. 187. Issuance of Other Letters

Sec. 188. Rights of Third Persons Dealing with Executors or Administrators

 

PART 2. OATHS AND BONDS OF PERSONAL REPRESENTATIVES

Sec. 189. How Executors and Administrators Shall Qualify

Sec. 190. Oaths of Executors and Administrators

Sec. 192. Time for Taking Oath and Giving Bond

Sec. 194. Bonds of Personal Representatives of Estates

Sec. 195. When No Bond Required

Sec. 196. Form of Bond

Sec. 197. Bonds to Be Filed

Sec. 198. Bonds of Joint Representatives

Sec. 199. Bonds of Married Persons

Sec. 200. Bond of Married Person under Eighteen Years of Age

Sec. 201. (A) Affidavit of Personal Surety; (B) Lien on Specific Property, When Required; (c) Subordination of Lien Authorized

Sec. 202. Bond as Lien on Real Property of Surety

Sec. 203. When New Bond May Be Required

Sec. 204. Demand for New Bond by Interested Person

Sec. 205. Judge to Require New Bond

Sec. 206. Order Requiring New Bond

Sec. 207. Order Suspends Powers of Personal Representative

Sec. 208. Decrease in Amount of Bond

Sec. 209. Discharge of Sureties upon Execution of New Bond

Sec. 210. Release of Sureties Before Estate Fully Administered

Sec. 211. Release of Lien Before Estate Fully Administered

Sec. 212. Release of Recorded Lien on Surety’s Property

Sec. 213. Revocation of Letters for Failure to Give Bond

Sec. 214. Executor Without Bond Required to Give Bond

Sec. 215. Order Requiring Bond

Sec. 216. Bond in Such Case

Sec. 217. Failure to Give Bond

Sec. 218. Bonds Not Void upon First Recovery

 

PART 3. REVOCATION OF LETTERS, DEATH, RESIGNATION, AND REMOVAL

Sec. 220. Appointment of Successor Representative

Sec. 221. Resignation

Sec. 221A. Change of Resident Agent

Sec. 221B. Resignation of Resident Agent

Sec. 222. Removal

Sec. 222A. Reinstatement after Removal

 

PART 4. SUBSEQUENT PERSONAL REPRESENTATIVES

Sec. 223. Further Administration with or Without Will Annexed

Sec. 224. Successors Succeed to Prior Rights, Powers, and Duties

Sec. 225. Additional Powers of Successor Appointee

Sec. 226. Subsequent Executors Also Succeed to Prior Rights and Duties

Sec. 227. Successors Return of Inventory, Appraisement, and List of Claims or Affidavit in Lieu of Inventory, Appraisement, and List of Claims

 

PART 5. GENERAL POWERS OF PERSONAL REPRESENTATIVES

Sec. 230. Care of Property of Estates

Sec. 232. Representative of Estate Shall Take Possession of Personal Property and Records

Sec. 233. Collection of Claims and Recovery of Property

Sec. 233A. Suits by Executors or Administrators

Sec. 234. Exercise of Powers with and Without Court Order

Sec. 235. Possession of Property Held in Common Ownership

Sec. 238. Operation of Farm, Ranch, Factory, or Other Business

Sec. 238A. Administration of Partnership Interest by Personal Representative

Sec. 239. Payment or Credit of Income

Sec. 240. Joint Executors or Administrators

 

PART 6. COMPENSATION, EXPENSES, AND COURT COSTS

Sec. 241. Compensation of Personal Representatives

Sec. 242. Expenses Allowed

Sec. 243. Allowance for Defending Will

Sec. 244. Expense Accounts

Sec. 245. When Costs Are Adjudged Against Representative

 

Chapter VIII. Proceedings During Administration

 

PART 1. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS

Sec. 248. Appointment of Appraisers

Sec. 249. Failure of Appraisers to Serve

Sec. 250. Inventory and Appraisement

Sec. 251. List of Claims

Sec. 252. Affidavit to Be Attached

Sec. 253. Fees of Appraisers

Sec. 255. Action by the Court

Sec. 256. Discovery of Additional Property

Sec. 257. Additional Inventory or List of Claims Required by Court

Sec. 258. Correction Required When Inventory, Appraisement, or List of Claims Erroneous or Unjust

Sec. 259. Effect of Reappraisement

Sec. 260. Failure of Joint Personal Representatives to Return an Inventory, Appraisement, and List of Claims or Affidavit in Lieu of Inventory, Appraisement, and List of Claims

Sec. 261. Use of Inventories, Appraisements, and Lists of Claims as Evidence

 

PART 2. WITHDRAWING ESTATES OF DECEASED PERSONS FROM ADMINISTRATION

Sec. 262. Executor or Administrator Required to Report on Condition of Estate

Sec. 263. Bond Required to Withdraw Estate from Administration

Sec. 264. Court’s Order

Sec. 265. Order of Discharge

Sec. 266. Lien on Property of Estate Withdrawn from Administration

Sec. 267. Partition of Estate Withdrawn from Administration

Sec. 268. Creditors May Sue on Bond

Sec. 269. Creditors May Sue Distributees

 

PART 3. SETTING APART HOMESTEAD AND OTHER EXEMPT PROPERTY, AND FIXING THE FAMILY ALLOWANCE

Sec. 270. Liability of Homestead for Debts

Sec. 271. Exempt Property to Be Set Apart

Sec. 272. To Whom Delivered

Sec. 273. Allowance in Lieu of Exempt Property

Sec. 274. How Allowance Paid

Sec. 275. To Whom Allowance Paid

Sec. 276. Sale to Raise Allowance

Sec. 277. Preference of Liens

Sec. 278. When Estate Is Solvent

Sec. 279. When Estate Is Insolvent

Sec. 280. Exempt Property Not Considered in Determining Solvency

Sec. 281. Exempt Property Liable for Certain Debts

Sec. 282. Nature of Homestead Property Immaterial

Sec. 283. Homestead Rights of Surviving Spouse

Sec. 284. When Homestead Not Partitioned

Sec. 285. When Homestead Can Be Partitioned

Sec. 286. Family Allowance to Surviving Spouses, Minors, and Adult Incapacitated Children

Sec. 287. Amount of Family Allowance

Sec. 288. When Family Allowance Not Made

Sec. 289. Order Fixing Family Allowance

Sec. 290. Family Allowance Preferred

Sec. 291. To Whom Family Allowance Paid

Sec. 292. May Take Property for Family Allowance

Sec. 293. Sale to Raise Funds for Family Allowance

 

PART 4. PRESENTMENT AND PAYMENT OF CLAIMS

Sec. 294. Notice by Representative of Appointment

Sec. 295. Notice to Holders of Secured Claims

Sec. 296. One Notice Sufficient

Sec. 297. Penalty for Failure to Give Notice

Sec. 298. Claims Against Estates of Decedents

Sec. 299. Tolling of General Statutes of Limitation

Sec. 301. Claims for Money must Be Authenticated

Sec. 302. When Defects of Form Are Waived

Sec. 303. Evidence Concerning Lost or Destroyed Claims

Sec. 304. Authentication of Claim by Others than Individual Owners

Sec. 306. Method of Handling Secured Claims for Money

Sec. 307. Claims Providing for Attorney’s Fees

Sec. 308. Depositing Claims with Clerk

Sec. 309. Memorandum of Allowance or Rejection of Claim

Sec. 310. Failure to Endorse or Annex Memorandum

Sec. 311. When Claims Entered in Docket

Sec. 312. Contest of Claims, Action by Court, and Appeals

Sec. 313. Suit on Rejected Claim

Sec. 314. Presentment of Claims a Prerequisite for Judgment

Sec. 315. Costs of Suit with Respect to Claims

Sec. 316. Claims Against Personal Representatives

Sec. 317. Claims by Personal Representatives

Sec. 318. Claims Not Allowed after Order for Partition and Distribution

Sec. 319. Claims Not to Be Paid Unless Approved

Sec. 320. Order of Payment of Claims and Allowances

Sec. 320A. Funeral Expenses

Sec. 321. Deficiency of Assets

Sec. 322. Classification of Claims Against Estate of Decedent

Sec. 322A. Apportionment of Taxes

Sec. 322B. Abatement of Bequests

Sec. 323. Joint Obligation

Sec. 324. Representatives Not to Purchase Claims

Sec. 326. Owner May Obtain Order for Payment

Sec. 328. Liability for Nonpayment of Claims

Sec. 329. Borrowing Money

 

PART 5. SALES

Sec. 331. Court must Order Sales

Sec. 332. Sales Authorized by Will

Sec. 333. Certain Personal Property to Be Sold

Sec. 334. Sales of Other Personal Property

Sec. 335. Special Provisions Pertaining to Livestock

Sec. 336. Sales of Personal Property at Public Auction

Sec. 337. Sales of Personal Property on Credit

Sec. 338. Sale of Mortgaged Property

Sec. 339. Sales of Personal Property to Be Reported; Decree Vests Title

Sec. 340. Selection of Real Property to Be Sold for Payment of Debts

Sec. 341. Application for Sale of Real Estate

Sec. 342. Contents of Application for Sale of Real Estate

Sec. 344. Citation on Application

Sec. 345. Opposition to Application

Sec. 345A. Hearing on Application and Any Opposition

Sec. 346. Order of Sale

Sec. 347. Procedure When Representative Neglects to Apply for Sale

Sec. 348. Permissible Terms of Sale of Real Estate

Sec. 349. Public Sales of Real Estate

Sec. 350. Private Sales of Real Estate

Sec. 351. Sales of Easements and Right of Ways

Sec. 352. Representative Purchasing Property of the Estate

Sec. 353. Reports of Sale

Sec. 354. Bond on Sale of Real Estate

Sec. 355. Action of Court on Report of Sale

Sec. 356. Deed Conveys Title to Real Estate

Sec. 357. Delivery of Deed, Vendor’s and Deed of Trust Lien

Sec. 358. Penalty for Neglect

 

PART 6. HIRING AND RENTING

Sec. 359. Hiring or Renting Without Order of Court

Sec. 360. Liability of Personal Representative

Sec. 361. Order to Hire or Rent

Sec. 362. Procedure in Case of Neglect to Rent Property

Sec. 363. When Property Is Hired or Rented on Credit

Sec. 364. Property Hired or Rented to Be Returned in Good Condition

Sec. 365. Report of Hiring or Renting

Sec. 366. Action of Court on Report

 

PART 7. MINERAL LEASES, POOLING OR UNITIZATION AGREEMENTS, AND OTHER MATTERS RELATING TO MINERAL PROPERTIES

Sec. 367. Mineral Leases after Public Notice

Sec. 368. Mineral Leases at Private Sale

Sec. 369. Pooling or Unitization of Royalty or Minerals

Sec. 370. Special Ancillary Instruments Which May Be Executed Without Court Order

Sec. 371. Procedure When Representative of Estate Neglects to Apply for Authority

Sec. 372. Validation of Certain Leases and Pooling or Unitization Agreements Based on Previous Statutes

 

PART 8. PARTITION AND DISTRIBUTION OF ESTATES OF DECEDENTS

Sec. 373. Application for Partition and Distribution of Estates of Decedents

Sec. 374. Citation of Interested Persons

Sec. 375. Citation of Executor or Administrator

Sec. 377. Facts to Be Ascertained upon Hearing

Sec. 378. Decree of the Court

Sec. 378A. Satisfaction of Pecuniary Bequests

Sec. 378B. Allocation of Income and Expenses During Administration of Decedent’s Estate

Sec. 379. Partition When Estate Consists of Money or Debts Only

Sec. 380. Partition and Distribution When Property Is Capable of Division

Sec. 381. Partition and Distribution When Property of an Estate Is Incapable of Division

Sec. 382. Property Located in Another County

Sec. 384. Damages for Neglect to Deliver Property

Sec. 385. Partition of Community Property

Sec. 386. Partition of Property Jointly Owned

Sec. 387. Expense of Partition

 

PART 10A. STOCKS, BONDS AND OTHER PERSONAL PROPERTY

Sec. 398A. Holding of Stocks, Bonds and Other Personal Property by Personal Representatives in Name of Nominee

 

PART 11. ANNUAL ACCOUNTS AND OTHER EXHIBITS

Sec. 399. Annual Accounts Required

Sec. 400. Penalty for Failure to File Annual Account

Sec. 401. Action upon Annual Accounts

Sec. 402. Additional Exhibits of Estates of Decedents

Sec. 403. Penalty for Failure to File Exhibits or Reports

 

PART 12. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE

Sec. 404. Closing Administration of Estates of Decedents

Sec. 405. Account for Final Settlement of Estates of Decedents

Sec. 405A. Delivery of Property

Sec. 406. Procedure in Case of Neglect or Failure to File Final Account; Payments Due Meantime

Sec. 407. Citation upon Presentation of Account for Final Settlement

Sec. 408. Action of the Court

Sec. 409. Money Becoming Due Pending Final Discharge

Sec. 410. Inheritance Taxes must Be Paid

Sec. 412. Offsets, Credits, and Bad Debts

Sec. 414. Procedure If Representative Fails to Deliver Estate

 

Chapter X. Payment of Estates into State Treasury

Sec. 427. When Estates to Be Paid into State Treasury

Sec. 428. Indispensability of Comptroller as Party

Sec. 429. Penalty for Neglect to Notify Comptroller

Sec. 430. Receipt of Comptroller

Sec. 431. Penalty for Failure to Make Payments to Comptroller

Sec. 432. Comptroller May Enforce Payment and Collect Damages

Sec. 433. Suit for the Recovery of Funds Paid to the Comptroller

 

Chapter XI. Nontestamentary Transfers

 

PART 1. MULTIPLE-PARTY ACCOUNTS

Sec. 436. Definitions

Sec. 437. Ownership as Between Parties and Others

Sec. 438. Ownership During Lifetime

Sec. 438A. Convenience Account

Sec. 438B. Convenience Signer on Other Accounts

Sec. 439. Right of Survivorship

Sec. 439A. Uniform Single-party or Multiple-party Account Form

Sec. 440. Effect of Written Notice to Financial Institution

Sec. 441. Accounts and Transfers Nontestamentary

Sec. 442. Rights of Creditors; Pledge of Account

Sec. 443. Protection of Financial Institutions

Sec. 444. Payment on Signature of One Party

Sec. 445. Payment of Joint Account after Death or Disability

Sec. 446. Payment of POD Account

Sec. 447. Payment of Trust Account

Sec. 448. Discharge from Claims

Sec. 449. Set-off to Financial Institution

 

PART 2. PROVISIONS RELATING TO EFFECT OF DEATH

Sec. 450. Provisions for Payment or Transfer at Death

 

PART 3. COMMUNITY PROPERTY WITH RIGHT OF SURVIVORSHIP

Sec. 451. Right of Survivorship

Sec. 452. Formalities

Sec. 453. Ownership and Management During Marriage

Sec. 454. Transfers Nontestamentary

Sec. 455. Revocation

Sec. 456. Proof of Agreement

Sec. 457. Action of Court on Agreement

Sec. 458. Effect of Order

Sec. 459. Custody of Adjudicated Agreements

Sec. 460. Protection of Persons or Entities Acting Without Knowledge or Notice

Sec. 461. Rights of Creditors

Sec. 462. Coordination with Part 1 of Chapter XI

 

Chapter XI-A. Provisions Applicable to Certain Nontestamentary Transfers

Sec. 471. Definitions

Sec. 472. Revocation of Certain Nontestamentary Transfers on Dissolution of Marriage

Sec. 473. Liability for Certain Payments, Benefits, and Property

 

Chapter XII. Durable Power of Attorney Act

Sec. 481. Short Title

Sec. 482. Definition

Sec. 483. Duration

Sec. 484. Effect of Acts by Attorney in Fact or Agent During Incapacity of Principal

Sec. 485. Relation of Attorney in Fact or Agent to Court-appointed Guardian of Estate

Sec. 485A. Effect of Principal’s Divorce or Marriage Annulment If Former Spouse Is Attorney in Fact or Agent

Sec. 486. Knowledge of Death, Guardian of Estate, Revocation, Divorce, or Marriage Annulment; Good-faith Acts

Sec. 487. Affidavit of Lack of Knowledge or Termination of Power; Recording; Good-faith Reliance

Sec. 487A. Effect of Bankruptcy Proceeding

Sec. 488. Revocation of Durable Power of Attorney

Sec. 489. Recording Durable Power of Attorney for Real Property Transactions

Sec. 489B. Duty to Inform and Account

Sec. 490. Statutory Durable Power of Attorney

Sec. 491. Construction of Powers Generally

Sec. 492. Construction of Power Relating to Real Property Transactions

Sec. 493. Construction of Power Relating to Tangible Personal Property Transactions

Sec. 494. Construction of Power Relating to Stock and Bond Transactions

Sec. 495. Construction of Power Relating to Commodity and Option Transactions

Sec. 496. Construction of Power Relating to Banking and Other Financial Institution Transactions

Sec. 497. Construction of Power Relating to Business Operation Transactions

Sec. 498. Construction of Power Relating to Insurance Transactions

Sec. 499. Construction of Power Relating to Estate, Trust, and Other Beneficiary Transactions

Sec. 500. Construction of Power Relating to Claims and Litigation

Sec. 501. Construction of Power Relating to Personal and Family Maintenance

Sec. 502. Construction of Power Relating to Benefits from Certain Governmental Programs or Civil or Military Service

Sec. 503. Construction of Power Relating to Retirement Plan Transactions

Sec. 504. Construction of Power Relating to Tax Matters

Sec. 505. Existing Interest; Foreign Interests

Sec. 506. Uniformity of Application and Construction

 

Chapter XIII. Guardianship

 

PART 1. GENERAL PROVISIONS

 

SUBPART A. DEFINITIONS; PURPOSE; APPLICABILITY; PROCEEDINGS IN REM

Sec. 601. Definitions

Sec. 602. Policy; Purpose of Guardianship

Sec. 603. Laws Applicable to Guardianships

Sec. 604. Proceeding in Rem

 

PART 2. GUARDIANSHIP PROCEEDINGS AND MATTERS

 

SUBPART A. JURISDICTION

Sec. 605. General Probate Court Jurisdiction in Guardianship Proceedings; Appeals

Sec. 606A. Matters Related to Guardianship Proceeding.

Sec. 607A. Original Jurisdiction for Guardianship Proceedings.

Sec. 607B. Jurisdiction of Contested Guardianship Proceeding in County with No Statutory Probate Court or County Court at Law.

Sec. 607C. Jurisdiction of Contested Guardianship Proceeding in County with No Statutory Probate Court.

Sec. 607D. Exclusive Jurisdiction of Guardianship Proceeding in County with Statutory Probate Court.

Sec. 607E. Concurrent Jurisdiction with District Court

Sec. 608. Transfer of Proceeding by Statutory Probate Court

Sec. 609. Transfer of Contested Guardianship of the Person of a Minor

 

SUBPART B. VENUE

Sec. 610. Venue for Appointment of Guardian

Sec. 611. Concurrent Venue and Transfer for Want of Venue

Sec. 612. Application for Transfer of Guardianship to Another County

Sec. 613. Notice

Sec. 614. Court Action

Sec. 615. Transfer of Record

Sec. 616. Transfer Effective

Sec. 617. Continuation of Guardianship

Sec. 618. New Guardian Appointed on Transfer

Sec. 619. Review of Transferred Guardianship

 

SUBPART C. DUTIES AND RECORDS OF CLERK

Sec. 621. Application and Other Papers to Be Filed with Clerk

Sec. 622. Costs and Security

Sec. 623. Judge’s Guardianship Docket

Sec. 624. Claim Docket

Sec. 625. Case Files

Sec. 626. Guardianship Fee Book

Sec. 627. Maintaining Records in Lieu of Record Books

Sec. 627A. Index

Sec. 628. Use of Records as Evidence

Sec. 629. Call of the Dockets

Sec. 630. Clerk May Set Hearings

Sec. 631. Clerk’s Duties

 

SUBPART D. SERVICE AND NOTICE

Sec. 632. Issuance, Contents, Service, and Return of Citation, Notices, and Writs in Guardianship Proceedings

Sec. 633. Notice and Citation

Sec. 634. Service on Attorney

Sec. 635. Waiver of Notice

Sec. 636. Notices to Department of Veterans Affairs by Guardians

 

SUBPART E. TRIAL AND HEARING MATTERS

Sec. 641. Defects in Pleading

Sec. 642. Standing to Commence or Contest Proceeding

Sec. 643. Trial by Jury

Sec. 644. Hearing by Submission

Sec. 645. Guardians Ad Litem

Sec. 645A. Immunity

Sec. 646. Appointment of Attorney Ad Litem and Interpreter

Sec. 646A. Representation of Ward or Proposed Ward by Attorney

Sec. 647. Duties of Attorney Ad Litem

Sec. 647A. Certification Requirement for Certain Court-appointed Attorneys

Sec. 648. Court Visitor Program

Sec. 648A. Duties of Court Investigator

Sec. 649. Evidence

Sec. 650. Decrees

Sec. 651. Enforcement of Orders

Sec. 652. Location of Hearing

 

SUBPART F. POST-TRIAL MATTERS

Sec. 653. Execution

Sec. 654. Attachment for Property

Sec. 655. Guardian to Serve Pending Appeal of Appointment

Sec. 656. Appeal Bond of Guardian

Sec. 657. Bill of Review

 

SUBPART G. LETTERS OF GUARDIANSHIP

Sec. 659. Issuance of Letters of Guardianship

Sec. 660. Letters or Order Made Evidence

Sec. 661. Issuance of New Letters

Sec. 662. Rights of Third Persons Dealing with Guardian

Sec. 663. Validation of Certain Letters of Guardianship

 

SUBPART H. COMPENSATION, EXPENSES, AND COURT COSTS

Sec. 665. Compensation of Guardians and Temporary Guardians

Sec. 665A. Payment for Professional Services

Sec. 665B. Compensation of Attorney Representing Applicant

Sec. 665C. Compensation for Collection of Claims and Recovery of Property

Sec. 666. Expenses Allowed

Sec. 667. Expense Account

Sec. 668. Costs Adjudged Against Guardian

Sec. 669. Costs Against Guardianship

Sec. 670. Compensation of Certain Guardians; Certain Other Guardianship Costs

 

SUBPART I. DUTY AND RESPONSIBILITY OF COURT

Sec. 671. Judge’s Duty

Sec. 672. Annual Determination Whether Guardianship Should Be Continued, Modified, or Terminated

 

SUBPART J. LIABILITY OF GUARDIAN

Sec. 673. Liability of Guardian for Conduct of Ward

Sec. 674. Immunity of Guardianship Program

 

PART 3. APPOINTMENT AND QUALIFICATION OF GUARDIANS

 

SUBPART A. APPOINTMENT

Sec. 675. Rights and Powers Retained by Ward

Sec. 676. Guardians of Minors

Sec. 677. Guardians of Persons Other than Minors

Sec. 677A. Written Declarations by Certain Parents to Appoint Guardians for Their Children

Sec. 677B. Proof of Written Declaration of Certain Parents to Designate Childrens’ Guardian

Sec. 678. Presumption Concerning Best Interest

Sec. 679. Designation of Guardian Before Need Arises

Sec. 679A. Proof of Written Declaration to Designate Guardian Before Need Arises

Sec. 680. Selection of Guardian by Minor

Sec. 681. Persons Disqualified to Serve as Guardians

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. 684. Findings Required

Sec. 685. Hearing for Appointment of Guardian; Right to Jury Trial

Sec. 686. Use of Records in Hearing to Appoint Guardian

Sec. 687. Examinations and Reports

Sec. 689. Preference of Ward

Sec. 690. Persons Appointed Guardian

Sec. 692. Dismissal of Application

Sec. 693. Order of Court

Sec. 694. Term of Appointment of Guardian

Sec. 694A. Complete Restoration of Ward’s Capacity or Modification of Guardianship

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. 694L. Payment for Guardians Ad Litem

Sec. 695. Appointment of Successor Guardian

Sec. 695A. Successor Guardians for Wards of Guardianship Programs or Governmental Entities

Sec. 696. Appointment of Private Professional Guardians

Sec. 696A. Appointment of Public Guardians

Sec. 696B. Appointment of Family Members or Friends

Sec. 697. Registration of Private Professional Guardians

Sec. 697A. List of Certain Public Guardians Maintained by County Clerks or Guardianship Certification Board

Sec. 697B. Certification Requirement for Private Professional Guardians and Public Guardians

Sec. 698. Access to Criminal History Records

 

SUBPART B. QUALIFICATION

Sec. 699. How Guardians Qualify

Sec. 700. Oath of Guardian.

Sec. 701. Time for Taking Oath and Giving Bond

Sec. 702. Bond Required of Guardian of the Person or Estate

Sec. 702A. Types of Bonds Acceptable for Guardian of the Person

Sec. 703. Bond of Guardian of the Estate

Sec. 704. Form of Bond

Sec. 705. Bond to Be Filed

Sec. 706. Bond of Joint Guardians

Sec. 707. Bond of Married Persons

Sec. 708. Bond of Married Person Younger than 18 Years of Age

Sec. 708A. Bond of Guardianship Program

Sec. 709. Affidavit of Personal Surety; Lien on Specific Property When Required; Subordination of Lien Authorized

Sec. 710. Bond as Lien on Real Property of Surety

Sec. 711. When New Bond May Be Required

Sec. 712. Demand for New Bond by Interested Person

Sec. 713. Judge to Require New Bond

Sec. 714. Order Requiring New Bond

Sec. 715. Order Suspends Powers of Guardians

Sec. 716. Decrease in Amount of Bond

Sec. 717. Discharge of Sureties on Execution of New Bond

Sec. 718. Release of Sureties Before Guardianship Fully Administered

Sec. 719. Release of Lien Before Guardianship Fully Administered

Sec. 720. Release of Recorded Lien on Surety’s Property

Sec. 721. Revocation of Letters for Failure to Give Bond

Sec. 722. Guardian Without Bond Required to Give Bond

Sec. 723. Order Requiring Bond

Sec. 724. Amount of Bond

Sec. 725. Failure to Give Bond

Sec. 726. Bonds Not Void on First Recovery

 

PART 4. ADMINISTRATION OF GUARDIANSHIP

 

SUBPART A. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS

Sec. 727. Appointment of Appraisers

Sec. 728. Failure of Appraiser to Serve

Sec. 729. Inventory and Appraisement

Sec. 730. List of Claims

Sec. 731. Affidavit Attached

Sec. 732. Appraiser Fees

Sec. 733. Court Action

Sec. 734. Discovery of Additional Property

Sec. 735. Additional Inventory or List of Claims

Sec. 736. Correction When Inventory, Appraisement, or List of Claims Erroneous or Unjust

Sec. 737. Effect of Reappraisement

Sec. 738. Failure of Joint Guardians to Return an Inventory, Appraisement, and List of Claims

Sec. 739. Use of Inventories, Appraisements, and Lists of Claims as Evidence

 

SUBPART B. ANNUAL ACCOUNTS, REPORTS, AND OTHER EXHIBITS

Sec. 741. Annual Accounts Required

Sec. 742. Action on Annual Accounts

Sec. 743. Reports of Guardians of the Person

Sec. 744. Penalty for Failure to File Accountings, Exhibits, or Reports

 

SUBPART C. FINAL SETTLEMENT, ACCOUNTING, AND DISCHARGE

Sec. 745. Settling Guardianships of the Estate

Sec. 746. Payment of Funeral Expenses and Other Debts on Death of Ward

Sec. 747. Termination of Guardianship of the Person

Sec. 748. Payment by Guardian of Taxes or Expenses

Sec. 749. Account for Final Settlement of Estates of Wards

Sec. 750. Procedure in Case of Neglect or Failure to File Final Account or Report

Sec. 751. Citation on Presentation of Account for Final Settlement

Sec. 752. Court Action; Closing of Guardianship of Ward’s Estate

Sec. 753. Money Becoming Due Pending Final Discharge

Sec. 754. Inheritance Taxes must Be Paid

Sec. 755. Appointment of Attorney to Represent Ward

Sec. 756. Offsets, Credits, and Bad Debts

Sec. 757. Accounting for Labor or Services of a Ward

Sec. 758. Procedure If Representative Fails to Deliver Estate

 

SUBPART D. REVOCATION OF LETTERS, DEATH, RESIGNATION, AND REMOVAL

Sec. 759. Appointment of Successor Guardian

Sec. 760. Resignation

Sec. 760A. Change of Resident Agent

Sec. 760B. Resignation of Resident Agent

Sec. 761. Removal

Sec. 762. Reinstatement after Removal

Sec. 763. Additional Powers of Successor Guardian

Sec. 764. Subsequent Guardians Succeed to Prior Rights and Duties

Sec. 765. Successors’ Return of Inventory, Appraisement, and List of Claims

 

SUBPART E. GENERAL DUTIES AND POWERS OF GUARDIANS

Sec. 767. Powers and Duties of Guardians of the Person

Sec. 768. General Powers and Duties of Guardian of the Estate

Sec. 769. Summary of Powers of Guardian of Person and Estate

Sec. 770. Care of Ward; Commitment

Sec. 770A. Administration of Medication

 

SUBPART F. SPECIFIC DUTIES AND POWERS OF GUARDIANS

Sec. 771. Guardian of Estate: Possession of Personal Property and Records

Sec. 772. Collection of Claims and Recovery of Property

Sec. 773. Suit by Guardian of Estate

Sec. 774. Exercise of Power with or Without Court Order

Sec. 775. Possession of Property Held in Common Ownership

Sec. 776. Amounts Allowable for Education and Maintenance of Ward

Sec. 776A. Sums Allowable for Education and Maintenance of Ward’s Spouse or Dependent

Sec. 777. Sums Allowed Parents for Education and Maintenance of Minor Ward

Sec. 778. Title of Wards Not to Be Disputed

Sec. 779. Operation of Farm, Ranch, Factory, or Other Business

Sec. 780. Administration of Partnership Interest by Guardian

Sec. 781. Borrowing Money

Sec. 782. Powers, Duties, and Obligations of Guardian of Person Entitled to Government Funds

 

SUBPART G. CLAIMS PROCEDURES

Sec. 783. Notice by Guardian of Appointment

Sec. 784. Notice to Holders of Recorded Claims

Sec. 785. One Notice Sufficient; Penalty for Failure to Give Notice

Sec. 786. Claims Against Wards

Sec. 787. Tolling of General Statutes of Limitation

Sec. 788. Claims must Be Authenticated

Sec. 789. When Defects of Form Are Waived

Sec. 790. Evidence Concerning Lost or Destroyed Claims

Sec. 791. Authentication of Claim by Others than Individual Owners

Sec. 792. Guardian’s Payment of Unauthenticated Claims

Sec. 793. Method of Handling Secured Claims

Sec. 794. Claims Providing for Attorney’s Fees

Sec. 795. Depositing Claims with Clerk

Sec. 796. Memorandum of Allowance or Rejection of Claim

Sec. 797. Failure to Endorse or Annex Memorandum

Sec. 798. Claims Entered in Docket

Sec. 799. Contest of Claims, Action by Court, and Appeals

Sec. 800. Suit on Rejected Claim

Sec. 801. Presentment of Claims a Prerequisite for Judgment

Sec. 802. Costs of Suit with Respect to Claims

Sec. 803. Claims by Guardians

Sec. 804. Claims Not to Be Paid Unless Approved

Sec. 805. Order of Payment of Claims

Sec. 806. Deficiency of Assets

Sec. 807. Guardian Not to Purchase Claims

Sec. 808. Proceeds of Sale of Mortgaged Property

Sec. 809. Liability for Nonpayment of Claims

 

SUBPART H. SALES

Sec. 811. Court must Order Sales

Sec. 812. Certain Personal Property to Be Sold

Sec. 813. Sales of Other Personal Property

Sec. 814. Special Provisions Pertaining to Livestock

Sec. 815. Sales of Personal Property at Public Auction

Sec. 816. Sales of Personal Property on Credit

Sec. 817. Sale of Mortgaged Property

Sec. 818. Sales of Personal Property Reported; Decree Vests Title

Sec. 819. Selection of Real Property Sold for Payment of Debts

Sec. 820. Application for Sale of Real Estate

Sec. 821. Contents of Application for Sale of Real Estate

Sec. 823. Citation on Application

Sec. 824. Opposition to Application

Sec. 824A. Hearing on Application and Any Opposition

Sec. 825. Order of Sale

Sec. 826. Procedure When Guardian Neglects to Apply for Sale

Sec. 827. Permissible Terms of Sale of Real Estate

Sec. 828. Public Sale of Real Estate

Sec. 829. Private Sale of Real Estate

Sec. 830. Sales of Easements and Rights of Way

Sec. 831. Guardian Purchasing Property of the Estate

Sec. 832. Report of Sale

Sec. 833. Bond on Sale of Real Estate

Sec. 834. Action of Court on Report of Sale

Sec. 835. Deed Conveys Title to Real Estate

Sec. 836. Delivery of Deed, Vendor’s Lien, and Deed of Trust Lien

Sec. 837. Penalty for Neglect

 

SUBPART I. HIRING AND RENTING

Sec. 839. Hiring or Renting Without Order of Court

Sec. 840. Liability of Guardian

Sec. 841. Order to Hire or Rent

Sec. 842. Procedure in Case of Neglect to Rent Property

Sec. 843. Property Hired or Rented on Credit

Sec. 844. Property Hired or Rented Returned in Good Condition

Sec. 845. Report of Hiring or Renting

Sec. 846. Court Action on Report

 

SUBPART J. MINERAL LEASES, POOLING OR UNITIZATION AGREEMENTS, AND OTHER MATTERS RELATING TO MINERAL PROPERTIES

Sec. 847. Mineral Leases after Public Notice

Sec. 848. Mineral Leases at Private Sale

Sec. 849. Pooling or Unitization of Royalty or Minerals

Sec. 850. Special Ancillary Instruments Executed Without Court Order

Sec. 851. Procedure When Guardian of Estate Neglects to Apply for Authority

Sec. 852. Validation of Certain Leases and Pooling or Unitization Agreements Based on Previous Statutes

 

SUBPART K. PARTITION OF WARD’S ESTATE IN REALTY

Sec. 853. Partition of Ward’s Interest in Realty

 

SUBPART L. INVESTMENTS AND LOANS OF ESTATES OF WARDS

Sec. 854. Guardian Required to Keep Estate Invested under Certain Circumstances

Sec. 855. Standard for Management and Investments

Sec. 855A. Retention of Assets

Sec. 855B. Procedure for Making Investments or Retaining Estate Assets

Sec. 857. Investment In, or Continued Investment In, Life Insurance or Annuities

Sec. 858. Loans and Security for Loans

Sec. 860. Guardian’s Investments in Real Estate

Sec. 861. Opinion of Attorney with Respect to Loans

Sec. 862. Report of Loans

Sec. 863. Liability of Guardian and Guardian’s Surety

 

SUBPART M. TAX MOTIVATED, CHARITABLE, AND OTHER GIFTS

Sec. 865. Power to Make Certain Gifts and Transfers

Sec. 865A. Inspection of Certain Instrument for Estate Planning Purposes

Sec. 866. Contributions

 

SUBPART N. MANAGEMENT TRUSTS

Sec. 867. Creation of Management Trust

Sec. 867A. Venue

Sec. 868. Terms of Management Trust

Sec. 868A. Discharge of Guardian of Estate and Continuation of Trust

Sec. 868B. Bond Requirement for Certain Trustees

Sec. 868C. Transfer of Management Trust Property to Pooled Trust

Sec. 869. Trust Amendment, Modification, or Revocation

Sec. 869A. Successor Trustee

Sec. 869B. Applicability of Texas Trust Code

Sec. 869C. Jurisdiction over Trust Matters

Sec. 870. Termination of Trust

Sec. 870A. Initial Accounting by Certain Trustees Required

Sec. 871. Annual Accounting

Sec. 872. Liability

Sec. 873. Distribution of Trust Property

 

PART 5. SPECIAL PROCEEDINGS AND ORDERS

 

SUBPART A. TEMPORARY GUARDIANSHIPS

Sec. 874. Presumption of Incapacitation

Sec. 875. Temporary Guardian – Procedure

Sec. 876. Authority of Temporary Guardian

Sec. 877. Powers of Temporary Guardian

Sec. 878. Accounting

Sec. 879. Closing Temporary Guardianship

 

SUBPART B. GUARDIANSHIPS FOR NONRESIDENTS

Sec. 881. Nonresident Guardian

Sec. 881A. Nonresident Guardian’s Removal of Ward’s Property from State

Sec. 882. Nonresident as Ward

 

SUBPART C. INCAPACITATED SPOUSE AND COMMUNITY PROPERTY

Sec. 883. Incapacitated Spouse

Sec. 883A. Recovery of Capacity

Sec. 883B. Accounting, Inventory, and Appraisement by Community Administrator

Sec. 883C. Removal of Community Administrator

Sec. 883D. Appointment of Attorney Ad Litem for Incapacitated Spouse

Sec. 884. Delivery to Spouse

Sec. 884A. Lawsuit Information

 

SUBPART D. RECEIVERSHIP FOR MINORS AND OTHER INCAPACITATED PERSONS

Sec. 885. Receivership

 

SUBPART E. PAYMENT OF CLAIMS WITHOUT GUARDIANSHIP

Sec. 887. Payment of Claims Without Guardianship and Administration of Terminated Guardianship Assets

 

SUBPART F. SALE OF PROPERTY OF MINORS AND CERTAIN WARDS

Sec. 889. Sale of Property of a Minor by a Parent Without Guardianship

Sec. 889A. Mortgage of Residential Homestead Interest of a Minor Without Guardianship

Sec. 890. Sale of Property of Ward Without Guardianship of the Estate

Sec. 890A. Mortgage of Residential Homestead Interest of a Minor Ward

 

SUBPART G. INTERSTATE GUARDIANSHIPS

Sec. 891. Transfer of Guardianship to Foreign Jurisdiction

Sec. 892. Receipt and Acceptance of Foreign Guardianship

Sec. 894. Guardianship Proceedings Filed in this State and in Foreign Jurisdiction

Sec. 895. Determination of Most Appropriate Forum for Certain Guardianship Proceedings

 

SUBPART H. CONTRACTS IN ARTS, ENTERTAINMENT, ADVERTISEMENT, AND SPORTS

Sec. 901. Definitions

Sec. 902. Construction

Sec. 903. Approval of Certain Contracts of Minors; Not Voidable

Sec. 904. Net Earnings of Minor; Set Aside and Preservation

Sec. 905. Guardian Ad Litem

 

SUBPART I. ESTABLISHMENT OF POOLED TRUST SUBACCOUNTS; TRANSFERS

Sec. 910. Definitions.

Sec. 911. Application.

Sec. 912. Appointment of Attorney Ad Litem.

Sec. 913. Transfer.

Sec. 914. Terms of Subaccount

Sec. 915. Jurisdiction Exclusive.

Sec. 916. Fees and Accounting

 

HEALTH & SAFETY CODE

 

Chapter 166. Advance Directives

 

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 166.001. Short Title

Sec. 166.002. Definitions

Sec. 166.003. Witnesses

Sec. 166.004. Statement Relating to Advance Directive

Sec. 166.005. Enforceability of Advance Directives Executed in Another Jurisdiction

Sec. 166.006. Effect of Advance Directive on Insurance Policy and Premiums

Sec. 166.007. Execution of Advance Directive May Not Be Required

Sec. 166.008. Conflict Between Advance Directives

Sec. 166.009. Certain Life-sustaining Treatment Not Required

Sec. 166.010. Applicability of Federal Law Relating to Child Abuse and Neglect

 

SUBCHAPTER B. DIRECTIVE TO PHYSICIANS

Sec. 166.031. Definitions

Sec. 166.032. Written Directive by Competent Adult; Notice to Physician

Sec. 166.033. Form of Written Directive

Sec. 166.034. Issuance of Nonwritten Directive by Competent Adult Qualified Patient

Sec. 166.035. Execution of Directive on Behalf of Patient Younger than 18 Years of Age

Sec. 166.036. Notarized Document Not Required; Requirement of Specific Form Prohibited

Sec. 166.037. Patient Desire Supersedes Directive

Sec. 166.038. Procedure When Declarant Is Incompetent or Incapable of Communication

Sec. 166.039. Procedure When Person Has Not Executed or Issued a Directive and Is Incompetent or Incapable of Communication

Sec. 166.040. Patient Certification and Prerequisites for Complying with Directive

Sec. 166.041. Duration of Directive

Sec. 166.042. Revocation of Directive

Sec. 166.043. Reexecution of Directive

Sec. 166.044. Limitation of Liability for Withholding or Withdrawing Life-sustaining Procedures

Sec. 166.045. Liability for Failure to Effectuate Directive

Sec. 166.046. Procedure If Not Effectuating a Directive or Treatment Decision

Sec. 166.047. Honoring Directive Does Not Constitute Offense of Aiding Suicide

Sec. 166.048. Criminal Penalty; Prosecution

Sec. 166.049. Pregnant Patients

Sec. 166.050. Mercy Killing Not Condoned

Sec. 166.051. Legal Right or Responsibility Not Affected

Sec. 166.052. Statements Explaining Patient’s Right to Transfer

Sec. 166.053. Registry to Assist Transfers

 

SUBCHAPTER C. OUT-OF-HOSPITAL DO-NOT-RESUSCITATE ORDERS

Sec. 166.081. Definitions

Sec. 166.082. Out-of-hospital DNR Order; Directive to Physicians

Sec. 166.083. Form of Out-of-hospital DNR Order

Sec. 166.084. Issuance of Out-of-hospital DNR Order by Nonwritten Communication

Sec. 166.085. Execution of Out-of-hospital DNR Order on Behalf or a Minor

Sec. 166.086. Desire of Person Supersedes Out-of-hospital DNR Order

Sec. 166.087. Procedure When Declarant Is Incompetent or Incapable of Communication

Sec. 166.088. Procedure When Person Has Not Executed or Issued Out-of-hospital DNR Order and Is Incompetent or Incapable of Communication

Sec. 166.089. Compliance with Out-of-Hospital DNR Order

Sec. 166.090. DNR Identification Device

Sec. 166.091. Duration of Out-of-hospital DNR Order

Sec. 166.092. Revocation of Out-of-Hospital DNR Order

Sec. 166.093. Reexecution of Out-of-hospital DNR Order

Sec. 166.094. Limitation on Liability for Withholding Cardiopulmonary Resuscitation and Certain Other Life-sustaining Procedures

Sec. 166.095. Limitation on Liability for Failure to Effectuate Out-of-Hospital DNR Order

Sec. 166.096. Honoring Out-of-hospital DNR Order Does Not Constitute Offense of Aiding Suicide

Sec. 166.097. Criminal Penalty; Prosecution

Sec. 166.098. Pregnant Persons

Sec. 166.099. Mercy Killing Not Condoned

Sec. 166.100. Legal Right or Responsibility Not Affected

Sec. 166.101. Duties of Department and Board

Sec. 166.102. Physician’s DNR Order May Be Honored by Health Care Personnel Other than Emergency Medical Services Personnel

 

SUBCHAPTER D. MEDICAL POWER OF ATTORNEY

Sec. 166.151. Definitions

Sec. 166.152. Scope and Duration of Authority

Sec. 166.153. Persons Who May Not Exercise Authority of Agent

Sec. 166.154. Execution and Witnesses

Sec. 166.155. Revocation

Sec. 166.156. Appointment of Guardian

Sec. 166.157. Disclosure of Medical Information

Sec. 166.158. Duty of Health or Residential Care Provider

Sec. 166.159. Discrimination Relating to Execution of Medical Power of Attorney

Sec. 166.160. Limitation on Liability

Sec. 166.161. Liability for Health Care Costs

Sec. 166.162. Disclosure Statement

Sec. 166.163. Form of Disclosure Statement

Sec. 166.164. Form of Medical Power of Attorney

Sec. 166.165. Civil Action

Sec. 166.166. Other Rights or Responsibilities Not Affected

 

INDEX TO TEXAS PROBATE CODE

 

REVISION HISTORY OF ATTORNEYS’ ELECTRONIC EDITION

 


TEXAS PROBATE CODE

Chapter I. General Provisions

Sec. 1. Short Title. This Act shall be known, and may be cited, as the “Texas Probate Code.”

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 2. Effective Date and Application.

(a) Effective Date. This Code shall take effect and be in force on and after January 1, 1956. The procedure herein prescribed shall govern all probate proceedings in county and probate courts brought after the effective date of this Act, and also all further procedure in proceedings in probate then pending, except to the extent that in the opinion of the court, with respect to proceedings in probate then pending, its application in particular proceedings or parts thereof would not be feasible or would work injustice, in which event the former procedure shall apply.

(b) Rights Not Affected. No act done in any proceeding commenced before this Code takes effect, and no accrued right, shall be impaired by the provisions of this Code. When a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time which has commenced to run by the provision of any statute in force before this Code takes effect, such provision shall remain in force and be deemed a part of this Code with respect to such right. All things properly done under any previously existing statute prior to the taking effect of this Code shall be treated as valid. Where citation or other process or notice is issued and served in compliance with existing statutes prior to the taking effect of this Code, the party upon whom such citation or other process has been served shall have the time provided for under such previously existing statutes in which to comply therewith.

(c) Subdivisions Have No Legal Effect. The division of this Code into Chapters, Parts, Sections, Subsections, and Paragraphs is solely for convenience and shall have no legal effect.

(d) Severability. If any provision of this Code, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect other provisions or applications of the Code which can be given effect without the invalid provision or application, and to this end the provisions of this Code are declared to be severable, and the Legislature hereby states that it would have enacted such portions of the Code which can lawfully be given effect regardless of the possible invalidity of other provisions of the Code.

(e) Nature of Proceeding. The administration of the estate of a decedent, from the filing of the application for probate and administration, or for administration, until the decree of final distribution and the discharge of the last personal representative, shall be considered as one proceeding for purposes of jurisdiction. The entire proceeding is a proceeding in rem.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 2, eff. Sept. 1, 1993.

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, having trust powers, existing or doing business under the laws of this state, another state, or 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; or

      (3) 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.”

®)   “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 an incapacitated person, including a minor.

(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) Repealed by Acts 2009, 81st Leg., Ch. 602, §19(2), eff. June 19, 2009.

(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 proceeding” is synonymous with the terms “Probate matter,” “Proceeding in probate,” and “Proceedings for probate.” The term means a matter or proceeding related to the estate of a decedent and includes:

      (1) the probate of a will, with or without administration of the estate;

      (2) the issuance of letters testamentary and of administration;

      (3) an heirship determination or small estate affidavit, community property administration, and homestead and family allowances;

      (4) an application, petition, motion, or action regarding the probate of a will or an estate administration, including a claim for money owed by the decedent;

      (5) a claim arising from an estate administration and any action brought on the claim;

      (6) the settling of a personal representative’s account of an estate and any other matter related to the settlement, partition, or distribution of an estate; and

      (7) a will construction suit.

(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 descendants 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, Sec. 1, 2, eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 1740, ch. 713, Sec. 1, eff. Aug. 27, 1979; Acts 1985, 69th Leg., ch. 159, Sec. 1, 2, eff. Sept. 1, 1985; Acts 1985, 69th Leg., ch. 591, Sec. 1, eff. Sept. 1, 1985; Acts 1989, 71st Leg., ch. 375, Sec. 33, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1035, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 14, Sec. 284(96), eff. Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 895, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 957, Sec. 3, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 4, 73(1), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 52, Sec. 1, eff; Sept; 1, 1997; Acts 1999, 76th Leg., ch. 344, Sec. 6.001, eff; Sept. 1, 1999; Acts 1999, 76th Leg., ch. 379, Sec. 1, eff; Sept. 1, 1999. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 1.01, eff. September 1, 2007. Subsec. (u) repealed by Acts 2009, 81st Leg., Ch. 602, §19(2), eff. June 19, 2009. Subsec. (bb) amended by Acts 2009, 81st Leg., Ch. 1351, §12(a), eff. Sept. 1, 2009.

Sec. 4A. General Probate Court Jurisdiction; Appeals.

(a) All probate proceedings must be filed and heard in a court exercising original probate jurisdiction. The court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding as specified in Section 4B of this code for that type of court.

(b) A probate court may exercise pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.

(c) A final order issued by a probate court is appealable to the court of appeals.

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009.

Sec. 4B. Matters Related to Probate Proceeding.

(a) For purposes of this code, in a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, a matter related to a probate proceeding includes:

      (1) an action against a personal representative or former personal representative arising out of the representative’s performance of the duties of a personal representative;

      (2) an action against a surety of a personal representative or former personal representative;

      (3) a claim brought by a personal representative on behalf of an estate;

      (4) an action brought against a personal representative in the representative’s capacity as personal representative;

      (5) an action for trial of title to real property that is estate property, including the enforcement of a lien against the property; and

      (6) an action for trial of the right of property that is estate property.

(b) For purposes of this code, in a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, a matter related to a probate proceeding includes:

      (1) all matters and actions described in Subsection (a) of this section;

      (2) the interpretation and administration of a testamentary trust if the will creating the trust has been admitted to probate in the court; and

      (3) the interpretation and administration of an inter vivos trust created by a decedent whose will has been admitted to probate in the court.

(c) For purposes of this code, in a county in which there is a statutory probate court, a matter related to a probate proceeding includes:

      (1) all matters and actions described in Subsections (a) and (b) of this section; and

      (2) any cause of action in which a personal representative of an estate pending in the statutory probate court is a party in the representative’s capacity as personal representative.

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009.

Sec. 4C. Original Jurisdiction for Probate Proceedings.

(a) In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, the county court has original jurisdiction of probate proceedings.

(b) In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, the county court at law exercising original probate jurisdiction and the county court have concurrent original jurisdiction of probate proceedings, unless otherwise provided by law. The judge of a county court may hear probate proceedings while sitting for the judge of any other county court.

(c) In a county in which there is a statutory probate court, the statutory probate court has original jurisdiction of probate proceedings.

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009.

Sec. 4D. Jurisdiction of Contested Probate Proceeding in County with No Statutory Probate Court or Statutory County Court.

(a) In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the county court may, on the judge’s own motion, or shall, on the motion of any party to the proceeding, according to the motion:

      (1) request the assignment of a statutory probate court judge to hear the contested matter, as provided by Section 25.0022, Government Code; or

      (2) transfer the contested matter to the district court, which may then hear the contested matter as if originally filed in the district court.

(b) If a party to a probate proceeding files a motion for the assignment of a statutory probate court judge to hear a contested matter in the proceeding before the judge of the county court transfers the contested matter to a district court under this section, the county judge shall grant the motion for the assignment of a statutory probate court judge and may not transfer the matter to the district court unless the party withdraws the motion.

(b-1)    If a judge of a county court requests the assignment of a statutory probate court judge to hear a contested matter in a probate proceeding on the judge’s own motion or on the motion of a party to the proceeding as provided by this section, the judge may request that the statutory probate court judge be assigned to the entire proceeding on the judge’s own motion or on the motion of a party.

(c) A party to a probate proceeding may file a motion for the assignment of a statutory probate court judge under this section before a matter in the proceeding becomes contested, and the motion is given effect as a motion for assignment of a statutory probate court judge under Subsection (a) of this section if the matter later becomes contested.

(d) Notwithstanding any other law, a transfer of a contested matter in a probate proceeding to a district court under any authority other than the authority provided by this section:

      (1) is disregarded for purposes of this section; and

      (2) does not defeat the right of a party to the proceeding to have the matter assigned to a statutory probate court judge in accordance with this section.

(e) A statutory probate court judge assigned to a contested matter in a probate proceeding or to the entire proceeding under this section has the jurisdiction and authority granted to a statutory probate court by this code. A statutory probate court judge assigned to hear only the contested matter in a probate proceeding shall, on resolution of the matter, including any appeal of the matter, return the matter to the county court for further proceedings not inconsistent with the orders of the statutory probate court or court of appeals, as applicable. A statutory probate court judge assigned to the entire probate proceeding as provided by Subsection (b-1) of this section shall, on resolution of the contested matter in the proceeding, including any appeal of the matter, return the entire proceeding to the county court for further proceedings not inconsistent with the orders of the statutory probate court or court of appeals, as applicable.

(f)  A district court to which a contested matter is transferred under this section has the jurisdiction and authority granted to a statutory probate court by this code. On resolution of a contested matter transferred to the district court under this section, including any appeal of the matter, the district court shall return the matter to the county court for further proceedings not inconsistent with the orders of the district court or court of appeals, as applicable.

(g) If only the contested matter in a probate proceeding is assigned to a statutory probate court judge under this section, or if the contested matter in a probate proceeding is transferred to a district court under this section, the county court shall continue to exercise jurisdiction over the management of the estate, other than a contested matter, until final disposition of the contested matter is made in accordance with this section. Any matter related to a probate proceeding in which a contested matter is transferred to a district court may be brought in the district court. The district court in which a matter related to the proceeding is filed may, on its own motion or on the motion of any party, find that the matter is not a contested matter and transfer the matter to the county court with jurisdiction of the management of the estate.

(h) If a contested matter in a probate proceeding is transferred to a district court under this section, the district court has jurisdiction of any contested matter in the proceeding that is subsequently filed, and the county court shall transfer those contested matters to the district court. If a statutory probate court judge is assigned under this section to hear a contested matter in a probate proceeding, the statutory probate court judge shall be assigned to hear any contested matter in the proceeding that is subsequently filed. (I) The clerk of a district court to which a contested matter in a probate proceeding is transferred under this section may perform in relation to the contested matter any function a county clerk may perform with respect to that type of matter.

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009. Amended by Acts 2011, 82nd Leg.

Sec. 4E. Jurisdiction of Contested Probate Proceeding in County with No Statutory Probate Court.

(a) In a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the county court may, on the judge’s own motion, or shall, on the motion of any party to the proceeding, transfer the contested matter to the county court at law. In addition, the judge of the county court, on the judge’s own motion or on the motion of a party to the proceeding, may transfer the entire proceeding to the county court at law.

(b) A county court at law to which a proceeding is transferred under this section may hear the proceeding as if originally filed in that court. If only a contested matter in the proceeding is transferred, on the resolution of the matter, the matter shall be returned to the county court for further proceedings not inconsistent with the orders of the county court at law.]

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009.

Sec. 4F. Exclusive Jurisdiction of Probate Proceeding in County with Statutory Probate Court.

(a) In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested. A cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 4H of this code or with the jurisdiction of any other court.

(b) This section shall be construed in conjunction and in harmony with Section 145 of this code and all other sections of this code relating to independent executors, but may not be construed to expand the court’s control over an independent executor.

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009.

Sec. 4G. Jurisdiction of Statutory Probate Court with Respect to Trusts and Powers of Attorney. In a county in which there is a statutory probate court, the statutory probate court has jurisdiction of:

(1) an action by or against a trustee;

(2) an action involving an inter vivos trust, testamentary trust, or charitable trust;

(3) an action against an agent or former agent under a power of attorney arising out of the agent’s performance of the duties of an agent; and

(4) an action to determine the validity of a power of attorney or to determine an agent’s rights, powers, or duties under a power of attorney.

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009.

Sec. 4H. Concurrent Jurisdiction with District Court. A statutory probate court has concurrent jurisdiction with the district court in:

(1) a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a personal representative;

(2) an action by or against a trustee;

(3) an action involving an inter vivos trust, testamentary trust, or charitable trust, including a charitable trust as defined by Section 123.001, Property Code;

(4) an action involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate;

(5) an action against an agent or former agent under a power of attorney arising out of the agent’s performance of the duties of an agent; and

(6) an action to determine the validity of a power of attorney or to determine an agent’s rights, powers, or duties under a power of attorney.

Added by Acts 2009, 81st Leg., Ch. 1351, §12(b), eff. Sept. 1, 2009. Amended by Acts 2011, 82nd Leg.

Sec. 5. Jurisdiction with Respect to Probate Proceedings.

(a) Repealed by Acts 2003, 78th Leg., ch. 1060, Sec. 16.

(b-d)    Repealed by Acts 2009, 81st Leg., Ch. 132, §1, eff. Sept. 1, 2009.

(e) A statutory probate court has concurrent jurisdiction with the district court in all personal injury, survival, or wrongful death actions by or against a person in the person’s capacity as a personal representative, in all actions by or against a trustee, in all actions involving an inter vivos trust, testamentary trust, or charitable trust, and in all actions involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate. For purposes of this section, “charitable trust” includes a charitable trust as defined by Section 123.001, Property Code.

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, 65th 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; Acts 1983, 68th Leg., p. 4122, ch. 647, Sec. 2, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 5434, ch. 1015, Sec. 1, eff. Aug. 29, 1983; Acts 1985, 69th Leg., ch. 159, Sec. 3, eff. Sept. 1, 1985; Acts 1987, 70th Leg., ch. 459, Sec. 4, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1035, Sec. 2, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 957, Sec. 5, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1435, Sec. 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1389, Sec. 1, eff. Aug. 30, 1999; Acts 2001, 77th Leg., ch. 63, Sec. 1, eff. Sept. 1, 2001. Section heading amended by Acts 2003, 78th Leg., ch. 1060, Sec. 1, eff. Sept. 1, 2003; Subsec. (a) repealed by Acts 2003, 78th Leg., ch. 1060, Sec. 16, eff. Sept. 1, 2003; Subsecs. (b) and (c) to (e) amended by Acts 2003, 78th Leg., ch. 1060, Sec. 2, eff. Sept. 1, 2003; Subsecs. (b-1) to (b-5), (h), and (I) added by Acts 2003, 78th Leg., ch. 1060, Sec. 2, eff. Sept. 1, 2003. Amended by: Acts 2005, 79th Leg., Ch. 551, Sec. 1, eff. September 1, 2005. Amended by Acts 2009, 81st Leg., Ch. 132, §1, eff. Sept. 1, 2009.

Sec. 5B. Transfer to Statutory Probate Court of Proceeding Related to Probate Proceeding.

(a) 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 the judge’s court from a district, county, or statutory court a cause of action related to a probate proceeding 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.

(b) Notwithstanding any other provision of this chapter, the proper venue for an action by or against a personal representative for personal injury, death, or property damages is determined under Section 15.007, Civil Practice and Remedies Code.

Added by Acts 1983, 68th Leg., p. 5228, ch. 958, Sec. 1, eff. Sept. 1, 1983. Amended by Acts 1999, 76th Leg., ch. 1431, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 204, Sec. 3.06, eff. Sept. 1, 2003. Subsect. (a) amended by Acts 2009, 81st Leg., Ch. 1351, §12(c), eff. Sept. 1, 2009. Amended by Acts 2011, 82nd Leg.

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, 76th Leg., ch. 1481, Sec. 36, eff. Sept. 1, 1999.

Sec. 6. Venue: Probate of Wills and Granting of Letters Testamentary and of Administration. Wills shall be admitted to probate, and letters testamentary or of administration shall be granted:

(1) in the county where the decedent resided, if the decedent had a domicile or fixed place of residence in this State;

(2) If the decedent had no domicile or fixed place of residence in this State but died in this State, then either in the county where the decedent’s principal estate was at the time of the decedent’s death, or in the county where the decedent died;

(3) If the decedent had no domicile or fixed place of residence in this State, and died outside the limits of this State:

      (A)      in any county in this State where the decedent’s nearest of kin reside; or

      (B)      if there are no kindred of the decedent in this State, then in the county where the decedent’s principal estate was situated at the time of the decedent’s death.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 2011, 82nd Leg.

Sec. 6A. Venue: Action Related to Probate Proceeding in Statutory Probate Court. Except as provided by Section 6B of this code, venue for any cause of action related to a probate proceeding pending in a statutory probate court is proper in the statutory probate court in which the decedent’s estate is pending.

Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 6B. Venue: Certain Actions Involving Personal Representative. Notwithstanding any other provision of this chapter, the proper venue for an action by or against a personal representative for personal injury, death, or property damages is determined under Section 15.007, Civil Practice and Remedies Code.

Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 6C. Venue: Heirship Proceedings.

(a) Venue for a proceeding to determine a decedent’s heirs is in:

      (1) the court of the county in which a proceeding admitting the decedent’s will to probate or administering the decedent’s estate was most recently pending; or

      (2) the court of the county in which venue would be proper for commencement of an administration of the decedent’s estate under Section 6 of this code if:

            (A)      no will of the decedent has been admitted to probate in this state and no administration of the decedent’s estate has been granted in this state; or

            (B)      the proceeding is commenced by the trustee of a trust holding assets for the benefit of the decedent.

(b) Notwithstanding Subsection (a) of this section and Section 6 of this code, if there is no administration pending of the estate of a deceased ward who died intestate, venue for a proceeding to determine the deceased ward’s heirs is in the probate court in which the guardianship proceedings with respect to the ward’s estate were pending on the date of the ward’s death. A proceeding described by this subsection may not be brought as part of the guardianship proceedings with respect to the ward’s estate, but rather must be filed as a separate cause in which the court may determine the heirs’ respective shares and interests in the estate as provided by the laws of this state.

Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 6D. Venue: Certain Actions Involving Breach of Fiduciary Duty. Notwithstanding any other provision of this chapter, venue for a proceeding brought by the attorney general alleging breach of a fiduciary duty by a charitable entity or a fiduciary or managerial agent of a charitable trust is determined under Section 123.005, Property Code.

Acts 2011, 82nd Leg.

Sec. 8. Concurrent Venue In Probate Proceeding.

(a) Concurrent Venue. When two or more courts have concurrent venue of a probate proceeding, the court in which the application for the proceeding is first filed shall have and retain jurisdiction of the estate proceeding to the exclusion of the other court or courts. The proceeding shall be deemed commenced by the filing of an application averring facts sufficient to confer venue; and the proceeding first legally commenced shall extend to all of the property of the decedent or the decedent’s estate. Provided, however, that a bona fide purchaser of real property in reliance on any such subsequent proceeding, without knowledge of its invalidity, shall be protected in such purchase unless before the purchase the decree admitting the will to probate, determining heirship, or granting administration in the prior proceeding shall be recorded in the office of the county clerk of the county in which such property is located.

(b) Probate Proceedings in More Than One County. If probate proceedings involving the same estate are commenced in more than one county, each proceeding commenced in a county other than the county in which a proceeding was first commenced is stayed until final determination of venue by the court in the county where first commenced. If the proper venue is finally determined to be in another county, the clerk, after making and retaining a true copy of the entire file in the case, shall transmit the original file to the proper county, and the proceeding shall thereupon be had in the proper county in the same manner as if the proceeding had originally been instituted therein.

(c) Jurisdiction to Determine Venue. Subject to Subsections (a) and (b) of this section, a court in which an application for a probate proceeding is filed has jurisdiction to determine venue for the proceeding and for any matter related to the proceeding. A court’s determination under this subsection is not subject to collateral attack.

Amended by Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 8A. Transfer of Venue In Probate Proceeding.

(a) Transfer for Want of Venue. If it appears to the court at any time before the final decree in a probate proceeding that the proceeding was commenced in a court which did not have priority of venue over such proceeding, the court shall, on the application of any interested person, transfer the proceeding to the proper county by transmitting to the proper court in such county the original file in such case, together with certified copies of all entries in the judge’s probate docket theretofore made, and the proceeding in such county shall be completed in the same manner as if the proceeding had originally been instituted therein; but, if the question as to priority of venue is not raised before final decree in the proceedings is announced, the finality of such decree shall not be affected by any error in venue.

(b) Transfer for Convenience. If it appears to the court at any time before a probate proceeding is concluded that it would be in the best interest of the estate or, if there is no administration of the estate, that it would be in the best interest of the heirs or beneficiaries of the decedent’s will, the court, in its discretion, may order the proceeding transferred to the proper court in any other county in this State. The clerk of the court from which the proceeding is transferred shall transmit to the court to which the proceeding is transferred the original file in the proceeding and a certified copy of the index.

Amended by Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 8B. Validation of Prior Proceedings. When a probate proceeding is transferred to another county under any provision of Section 8 or 8A of this Code, all orders entered in connection with the proceeding shall be valid and shall be recognized in the second court, provided such orders were made and entered in conformance with the procedure prescribed by this Code.

(e) Jurisdiction to Determine Venue. Any court in which there has been filed an application for a proceeding in probate or determination of heirship shall have full jurisdiction to determine the venue of the proceeding in probate or heirship proceeding, and of any proceeding relating thereto, and its determination shall not be subject to collateral attack.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1983, 68th Leg., p. 4754, ch. 833, Sec. 1, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 786, Sec. 1, eff. Aug. 31, 1987. Subsec. (c)(2) amended by Acts 2003, 78th Leg., ch. 1060, Sec. 5, eff. Sept. 1, 2003. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 2.01, eff. September 1, 2007. Amended by Acts 2009, 81st Leg., Ch. 602, §1, eff. June 19, 2009. Amended by Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 9. Defects in Pleading. No defect of form or substance in any pleading in probate shall be held by any court to invalidate such pleading, or any order based upon such pleading, unless the defect has been timely objected to and called to the attention of the court in which such proceedings were or are pending.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 10. Persons Entitled to Contest Proceedings. Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition, as in other suits.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 10A. Necessary Party.

(a) An institution of higher education as defined by Section 61.003, Education Code, a private institution of higher education, or a charitable organization is a necessary party to a will contest or will construction suit involving a will in which the institution or organization is a distributee.

(b) If an institution or organization is a necessary party under Subsection (a) of this section, the court shall serve the institution or organization in the manner provided for service on other parties by this code.

Added by Acts 1989, 71st Leg., ch. 1035, Sec. 4, eff. Sept. 1, 1989. Amended by Acts 1991, 72nd Leg., ch. 675, Sec. 1, eff. Sept. 1, 1991.

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 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, 76th Leg., ch. 855, Sec. 1, eff. Sept. 1, 1999.

Sec. 10C. Effect of Filing or Contesting Pleading.

(a) The filing or contesting in probate court of any pleading relating to a decedent’s estate does not constitute tortious interference with inheritance of the estate.

(b) This section does not abrogate any rights of a person under Rule 13, Texas Rules of Civil Procedure, or Chapter 10, Civil Practice and Remedies Code.

Added by Acts 2003, 78th Leg., ch. 1060, Sec. 6, eff. Sept. 1, 2003.

Sec. 11. Applications and Other Papers to Be Filed with Clerk. All applications for probate proceedings, complaints, petitions and all other papers permitted or required by law to be filed in the court in probate matters, shall be filed with the county clerk of the proper county who shall file the same and endorse on each paper the date filed and the docket number, and his official signature.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 11A. Exemption from Probate Fees for Estates of Certain Military Servicemembers.

(a) In this section, “combat zone” means an area that the president of the United States by executive order designates for purposes of 26 U.S.C. Section 112 as an area in which armed forces of the United States are or have engaged in combat.

(b) Notwithstanding any other law, the clerk of a county court may not charge, or collect from, the estate of a decedent any of the following fees if the decedent died while in active service as a member of the armed forces of the United States in a combat zone:

      (1) a fee for or associated with the filing of the decedent’s will for probate; and

      (2) a fee for any service rendered by the probate court regarding the administration of the decedent’s estate.

Added by Acts 2007, 80th Leg., R.S., Ch. 940, Sec. 1, eff. June 15, 2007.

Sec. 11B. Exemption from Probate Fees for Estates of Certain Law Enforcement Officers, Firefighters, and Others.

(a) In this section:

      (1) “Eligible decedent” means an individual listed in Section 615.003, Government Code.

      (2) “Line of duty” and “personal injury” have the meanings assigned by Section 615.021(e), Government Code.

(b) Notwithstanding any other law, the clerk of a court may not charge, or collect from, the estate of an eligible decedent any of the following fees if the decedent died as a result of a personal injury sustained in the line of duty in the individual’s position as described by Section 615.003, Government Code:

      (1) a fee for or associated with the filing of the decedent’s will for probate; and

      (2) a fee for any service rendered by the court regarding the administration of the decedent’s estate.

Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 12. Costs and Security Therefor.

(a) Applicability of Laws Regulating Costs. The provisions of law regulating costs in ordinary civil cases shall apply to all matters in probate when not expressly provided for in this Code.

(b) Security for Costs Required, When. When any person other than the personal representative of an estate files an application, complaint, or opposition in relation to the estate, he may be required by the clerk to give security for the probable cost of such proceeding before filing the same; or any one interested in the estate, or any officer of the court, may, at any time before the trial of such application, complaint, or opposition, obtain from the court, upon written motion, an order requiring such party to give security for the probable costs of such proceeding. The rules governing civil suits in the county court respecting this subject shall control in such cases.

(c) Suit for Fiduciary. No security for costs shall be required of an executor or administrator appointed by a court of this state in any suit brought by him in his fiduciary character.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1985, 69th Leg., ch. 959, Sec. 4, eff. Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 957, Sec. 7, eff. Sept. 1, 1993.

Sec. 13. Judge’s Probate Docket. The county clerk shall keep a record book to be styled “Judge’s Probate Docket,” and shall enter therein:

(a) The name of each person upon whose person or estate proceedings are had or sought to be had.

(b) The name of the executor or administrator or of the applicant for letters.

(c) The date of the filing of the original application for probate proceedings.

(d) A notation of each order, judgment, decree, and proceeding had in each estate, with the date thereof.

(e) A number for each estate upon the docket in the order in which proceedings are commenced, and each paper filed in an estate shall be given the corresponding docket number of the estate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 8, eff. Sept. 1, 1993. Amended by Acts 2009, 81st Leg., Ch. 602, §2, eff. June 19, 2009.

Sec. 14. Claim Docket. The county clerk shall also keep a record book to be styled “Claim Docket,” and shall enter therein all claims presented against an estate for approval by the court. This docket shall be ruled in sixteen columns at proper intervals from top to bottom, with a short note of the contents at the top of each column. One or more pages shall be assigned to each estate. The following information shall be entered in the respective columns beginning with the first or marginal column: The names of claimants in the order in which their claims are filed; the amount of the claim; its date; the date of filing; when due; the date from which it bears interest; the rate of interest; when allowed by the executor or administrator; the amount allowed; the date of rejection; when approved; the amount approved; when disapproved; the class to which the claim belongs; when established by judgment of a court; the amount of such judgment.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 9, eff. Sept. 1, 1993.

Sec. 15. Case Files. 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 all orders, judgments, and proceedings of the court and any other probate filing with the court, including all:

(1) applications for the probate of wills and for the granting of administration;

(2) citations and notices, whether published or posted, with the returns thereon;

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

(4) bonds and official oaths;

(5) inventories, appraisements, and lists of claims;

(5-a)    affidavits in lieu of inventories, appraisements, and lists of claims;

(6) exhibits and accounts;

(7) reports of hiring, renting, or sale;

(8) applications for sale or partition of real estate and reports of sale and of commissioners of partition;

(9) 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)     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; Acts 1999, 76th Leg., ch. 67, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2011, 82nd Legislature, eff. September 1, 2011.

Sec. 16. Probate Fee Book. The county clerk shall keep a record book styled “Probate Fee Book,” and shall enter therein each item of costs which accrues to the officers of the court, together with witness fees, if any, showing the party to whom the costs or fees are due, the date of the accrual of the same, the estate or party liable therefor, and the date on which any such costs or fees are paid.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

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.

Added by Acts 1999, 76th Leg., ch. 67, Sec. 1, eff. Sept. 1, 1999.

Sec. 17A. Index. The county clerk shall properly index the records and keep the index open for public inspection, but may not release the index from the clerk’s custody.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Renumbered from V.A.T.S. Probate Code, Sec. 17 and amended by Acts 1999, 76th Leg., ch. 67, Sec. 1, 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 of this code, or certified copies or reproductions of the records, shall be evidence in any court of this state.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1999, 76th Leg., ch. 67, Sec. 1, eff. Sept. 1, 1999.

Sec. 19. Call of the Dockets. The judge of the court in which probate proceedings are pending, at such times as he shall determine, shall call the estates of decedents in their regular order upon both the probate and claim dockets and make such orders as shall be necessary.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 11, eff. Sept. 1, 1993.

Sec. 20. Clerk May Set Hearings. Whenever, on account of the county judge’s absence from the county seat, or his being on vacation, disqualified, ill, or deceased, such judge is unable to designate the time and place for hearing a probate matter pending in his court, authority is hereby vested in the county clerk of the county in which such matter is pending to designate such time and place, entering such setting on the judge’s docket and certifying thereupon why such judge is not acting by himself. If, after service of such notices and citations as required by law with reference to such time and place of hearing has been perfected, no qualified judge is present for the hearing, the same shall automatically be continued from day to day until a qualified judge is present to hear and determine the matter.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 21. Trial by Jury. In all contested probate and mental illness proceedings in the district court or in the county court or statutory probate court, county court at law or other statutory court exercising probate jurisdiction, the parties shall be entitled to trial by jury as in other civil actions.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1973, 63rd Leg., p. 1685, ch. 610, Sec. 2.

Sec. 22. Evidence. In proceedings arising under the provisions of this Code, the rules relating to witnesses and evidence that govern in the District Court shall apply so far as practicable except that where a will is to be probated, and in other probate matters where there is no opposing party or attorney of record upon whom notice and copies of interrogatories may be served, service may be had by posting notice of intention to take depositions for a period of ten days as provided in this Code governing posting of notices. When such notice is filed with the clerk, a copy of the interrogatories shall also be filed, and at the expiration of ten days, commission may issue for taking the depositions, and the judge may file cross-interrogatories where no one appears, if he so desires.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 23. Decrees. All decisions, orders, decrees, and judgments of the county court in probate matters shall be rendered in open court except in cases where it is otherwise specially provided.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 2009, 81st Leg., ch. 602, §3, eff. June 19, 2009.

Sec. 24. Enforcement of Orders. The county or probate judge may enforce obedience to all his lawful orders against executors and administrators by attachment and imprisonment, but no such imprisonment shall exceed three days for any one offense, unless otherwise expressly so provided in this Code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 12, eff. Sept. 1, 1993.

Sec. 25. Executions. Executions in probate matters shall be directed “to any sheriff or any constable within the State of Texas,” made returnable in sixty days, and shall be attested and signed by the clerk officially under the seal of the court. All proceedings under such executions shall be governed by the laws regulating proceedings under executions issued from the District Court so far as applicable. Provided, however, that no execution directed to the sheriff or any constable of a specific county within this State shall be held defective if such execution was properly executed within such county by such officer.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 26. Attachments for Property. Whenever complaint in writing, under oath, shall be made to the county or probate judge by any person interested in the estate of a decedent that the executor or administrator is about to remove said estate, or any part thereof, beyond the limits of the State, such judge may order a writ to issue, directed “to any sheriff or any constable within the State of Texas,” commanding him to seize such estate, or any part thereof, and hold the same subject to such further orders as such judge shall make on such complaint. No such writ shall issue unless the complainant shall give bond, in such sum as the judge shall require, payable to the executor or administrator of such estate, conditioned for the payment of all damages and costs that shall be recovered for the wrongful suing out of such writ. Provided, however, that no writ of attachment directed to the sheriff or any constable of a specific county within this State shall be held defective if such writ was properly executed within such county by such officer.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 13, eff. Sept. 1, 1993.

Sec. 27. Enforcement of Specific Performance. When any person shall sell property and enter into bond or other written agreement to make title thereto, and shall depart this life without having made such title, the owner of such bond or written agreement or his legal representatives, may file a complaint in writing in the court of the county where the letters testamentary or of administration on the estate of the deceased obligor were granted, and cause the personal representative of such estate to be cited to appear at a date stated in the citation and show cause why specific performance of such bond or written agreement should not be decreed. Such bond or other written agreement shall be filed with such complaint, or good cause shown under oath why the same cannot be filed; and if it cannot be so filed, the same or the substance thereof shall be set forth in the complaint. After the service of the citation, the court shall hear such complaint and the evidence thereon, and, if satisfied from the proof that such bond or written agreement was legally executed by the testator or intestate, and that the complainant has a right to demand specific performance thereof, a decree shall be made ordering the personal representative to make title to the property, according to the tenor of the obligation, fully describing the property in such decree. When a conveyance is made under the provisions of this Section, it shall refer to and identify the decree of the court authorizing it, and, when delivered, shall vest in the person to whom made all the right and title which the testator or intestate had to the property conveyed; and such conveyance shall be prima facie evidence that all requirements of the law have been complied with in obtaining the same.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 28. Personal Representative to Serve Pending Appeal of Appointment. Pending appeals from orders or judgments appointing administrators or temporary administrators, the appointees shall continue to act as such and shall continue the prosecution of any suits then pending in favor of the estate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 2196, ch. 701, Sec. 3, eff. June 21, 1975; Acts 1993, 73rd Leg., ch. 957, Sec. 14, eff. Sept. 1, 1993.

Sec. 29. Appeal Bonds of Personal Representatives. When an appeal is taken by an executor or administrator, no bond shall be required, unless such appeal personally concerns him, in which case he must give the bond.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 15, eff. Sept. 1, 1993.

Sec. 31. Bill of Review. Any person interested may, by a bill of review filed in the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court, or by the judge thereof, revised and corrected on showing error therein; but no process or action under such decision, order or judgment shall be stayed except by writ of injunction, and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 16, eff. Sept. 1, 1993.

Sec. 32. Common Law Applicable. The rights, powers and duties of executors and administrators shall be governed by the principles of the common law, when the same do not conflict with the provisions of the statutes of this State.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 17, eff. Sept. 1, 1993.

Sec. 33. Issuance, Contents, Service, and Return of Citation, Notices, and Writs in Probate Matters.

(a) When Citation or Notice Necessary. No person need be cited or otherwise given notice except in situations in which this Code expressly provides for citation or the giving of notice; provided, however, that even though this Code does not expressly provide for citation, or the issuance or return of notice in any probate matter, the court may, in its discretion, require that notice be given, and prescribe the form and manner of service and return thereof.

(b) Issuance by the Clerk or by Personal Representative. The county clerk shall issue necessary citations, writs, and process in probate matters, and all notices not required to be issued by personal representatives, without any order from the court, unless such order is required by a provision of this Code.

(c) Contents of Citation, Writ, and Notice. Citation and notices issued by the clerk shall be signed and sealed by him, and shall be styled “The State of Texas.” Notices required to be given by a personal representative shall be in writing and shall be signed by the representative in his official capacity. All citations and notices shall be directed to the person or persons to be cited or notified, shall be dated, and shall state the style and number of the proceeding, the court in which it is pending, and shall describe generally the nature of the proceeding or matter to which the citation or notice relates. No precept directed to an officer is necessary. A citation or notice shall direct the person or persons cited or notified to appear by filing a written contest or answer, or to perform other acts required of him or them and shall state when and where such appearance or performance is required. No citation or notice shall be held to be defective because it contains a precept directed to an officer authorized to serve it. All writs and other process except citations and notices shall be directed “To any sheriff or constable within the State of Texas,” but shall not be held defective because directed to the sheriff or any constable of a specific county if properly served within the named county by such officer.

(d) Where No Specific Form of Notice, Service, or Return is Prescribed, or When Provisions Are Insufficient or Inadequate. In all situations in which this Code requires that notice be given, or that a person be cited, and in which a specific method of giving such notice or of citing such person, or a specific method of service and return of such citation or notice is not given, or an insufficient or inadequate provision appears with respect to any of such matters, or when any interested person so requests, such notice or citation shall be issued, served, and returned in such manner as the court, by written order, shall direct in accordance with this Code and the Texas Rules of Civil Procedure, and shall have the same force and effect as if the manner of service and return had been specified in this Code.

(e) Service of Citation or Notice Upon Personal Representatives. Except in instances in which this Code expressly provides another method of service, any notice or citation required to be served upon any personal representative or receiver shall be served by the clerk issuing such citation or notice. The clerk shall serve the same by sending the original thereof by registered or certified mail to the attorney of record for the personal representative or receiver, but if there is no attorney of record, to the personal representative or receiver.

(f)  Methods of Serving Citations and Notices.

      (1) Personal Service. Where it is provided that personal service shall be had with respect to a citation or notice, any such citation or notice must be served upon the attorney of record for the person to be cited. Notwithstanding the requirement of personal service, service may be made upon such attorney by any of the methods hereinafter specified for service upon an attorney. If there is no attorney of record in the proceeding for such person, or if an attempt to make service upon the attorney was unsuccessful, a citation or notice directed to a person within this State must be served by the sheriff or constable upon the person to be cited or notified, in person, by delivering to him a true copy of such citation or notice at least ten (10) days before the return day thereof, exclusive of the date of service. Where the person to be cited or notified is absent from the State, or is a nonresident, such citation or notice may be served by any disinterested person competent to make oath of the fact. Said citation or notice shall be returnable at least ten (10) days after the date of service, exclusive of the date of service. The return of the person serving the citation or notice shall be endorsed on or attached to same; it shall show the time and place of service, certify that a true copy of the citation or notice was delivered to the person directed to be served, be subscribed and sworn to before some officer authorized by the laws of this State to take affidavits, under the hand and official seal of such officer, and returned to the county clerk who issued same. If in either case such citation or notice is returned with the notation that the person sought to be served, whether within or without this State, cannot be found, the clerk shall issue a new citation or notice directed to the person or persons sought to be served and service shall be by publication.

      (2) Posting. When citation or notice is required to be posted, it shall be posted by the sheriff or constable at the courthouse door of the county in which the proceedings are pending, or at the place in or near the courthouse where public notices customarily are posted, for not less than ten (10) days before the return day thereof, exclusive of the date of posting. The clerk shall deliver the original and a copy of such citation or notice to the sheriff or any constable of the proper county, who shall post said copy as herein prescribed and return the original to the clerk, stating in a written return thereon the time when and the place where he posted such copy. The date of posting shall be the date of service. When posting of notice by a personal representative is authorized or required, the method herein prescribed shall be followed, such notices to be issued in the name of the representative, addressed and delivered to, posted and returned by, the proper officer, and filed with the clerk.

      (3) Publication. When a person is to be cited or notified by publication, the citation or notice shall be published once in a newspaper of general circulation in the county in which the proceedings are pending, and said publication shall be not less than ten (10) days before the return day thereof, exclusive of the date of publication. The date of publication which said newspaper bears shall be the date of service. If no newspaper is published, printed, or of general circulation, in the county where citation or notice is to be had, service of such citation or notice shall be by posting.

      (4) Mailing.

            (A)      When any citation or notice is required or permitted to be served by registered or certified mail, other than notices required to be given by personal representatives, the clerk shall issue such citation or notice and shall serve the same by sending the original thereof by registered or certified mail. Any notice required to be given by a personal representative by registered or certified mail shall be issued by him, and he shall serve the same by sending the original thereof by registered or certified mail. In either case the citation or notice shall be mailed with instructions to deliver to the addressee only, and with return receipt requested. The envelope containing such citation or notice shall be addressed to the attorney of record in the proceeding for the person to be cited or notified, but if there is none, or if returned undelivered, then to the person to be cited or notified. A copy of such citation or notice, together with the certificate of the clerk, or of the personal representative, as the case may be, showing the fact and date of mailing, shall be filed and recorded. If a receipt is returned, it shall be attached to the certificate.

            (B)      When any citation or notice is required or permitted to be served by ordinary mail, the clerk, or the personal representative when required by statute or by order of the court, shall serve the same by mailing the original to the person to be cited or notified. A copy of such citation or notice, together with a certificate of the person serving the same showing the fact and time of mailing, shall be filed and recorded.

            (c) When service is made by mail, the date of mailing shall be the date of service. Service by mail shall be made not less than twenty (20) days before the return day thereof, exclusive of the date of service.

            (D)      If a citation or notice served by mailing is returned undelivered, a new citation or notice shall be issued, and such citation or notice shall be served by posting.

(g) Return of Citation or Notice. All citations and notices issued by the clerk and served by personal service, by mail, by posting, or by publication, shall be returnable to the court from which issued on the first Monday after the service is perfected.

(h) Sufficiency of Return in Cases of Posting. In any probate matter where citation or notice is required to be served by posting, and such citation or notice is issued in conformity with the applicable provision of this Code, the citation or notice and the service and return thereof shall be sufficient and valid if any sheriff or constable posts a copy or copies of such citation or notice at the place or places prescribed by this Code on a day which is sufficiently prior to the return day named in such citation or notice for the period of time for which such citation or notice is required to be posted to elapse before the return day of such citation or notice, and the fact that such sheriff or constable makes his return on such citation or notice and returns same into court before the period of time elapses for which such citation or notice is required to be posted, shall not affect the sufficiency or validity of such citation or notice or the service or return thereof, even though such return is made, and such citation or notice is returned into court, on the same day it is issued.

(I)  Proof of Service. Proof of service in all cases requiring notice or citation, whether by publication, posting, mailing, or otherwise, shall be filed before the hearing. Proof of service made by a sheriff or constable shall be made by the return of service. Service made by a private person shall be proved by the affidavit of the person. Proof of service by publication shall be made by the affidavit of the publisher or that of an employee of the publisher, which affidavit shall show the date the issue of the newspaper bore, and have attached to or embodied in it a copy of the published notice or citation. In the case of service by mail, proof shall be made by the certificate of the clerk, or the affidavit of the personal representative or other person making such service, stating the fact and time of mailing. In the case of service by registered or certified mail, the return receipt shall be attached to the certificate, if a receipt has been returned.

(j)  Request for Notice. At any time after an application is filed for the purpose of commencing any proceeding in probate, including, but not limited to, a proceeding for the probate of a will, grant of letters testamentary or of administration and determination of heirship, any person interested in the estate may file with the clerk a request in writing that he be notified of any and all, or of any specifically designated, motions, applications, or pleadings filed by any person, or by any particular persons specifically designated in the request. The fees and costs for such notices shall be borne by the person requesting them, and the clerk may require a deposit to cover the estimated costs of furnishing such person with the notice or notices requested. The clerk shall thereafter send to such person by ordinary mail copies of any of the documents specified in the request. Failure of the clerk to comply with the request shall not invalidate any proceeding.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 1, eff. Aug. 22, 1957; Acts 1971, 62nd Leg., p. 967, ch. 173, Sec. 1, eff. Jan. 1, 1972; Acts 1993, 73rd Leg., ch. 957, Sec. 18, eff. Sept. 1, 1993.

Sec. 34. Service on Attorney. If any attorney shall have entered his appearance of record for any party in any proceeding in probate, all citations and notices required to be served on the party in such proceeding shall be served on the attorney, and such service shall be in lieu of service upon the party for whom the attorney appears. All notices served on attorneys in accordance with this section may be served by registered or certified mail or by delivery to the attorney in person. They may be served by a party to the proceeding or his attorney of record, or by the proper sheriff or constable, or by any other person competent to testify. A written statement by an attorney of record, or the return of the officer, or the affidavit of any other person showing service shall be prima facie evidence of the fact of service.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 970, ch. 173, Sec. 2, eff. Jan. 1, 1972.

Sec. 34A. Attorneys Ad Litem. Except as provided by Section 53(c) of this code, the judge of a probate court may appoint an attorney ad litem to represent the interests of a person having a legal disability, a nonresident, an unborn or unascertained person, or an unknown heir in any probate proceeding. Each attorney ad litem appointed under this section is entitled to reasonable compensation for services in the amount set by the court and to be taxed as costs in the proceeding.

Added by Acts 1983, 68th Leg., p. 747, ch. 178, Sec. 1, eff. Aug. 29, 1983. Amended by Acts 1987, 70th Leg., ch. 467, Sec. 1, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 957, Sec. 19, eff. Sept. 1, 1993; Acts 2001, 77th Leg., ch. 664, Sec. 1, eff. Sept. 1, 2001.

Sec. 35. Waiver of Notice. Any person legally competent who is interested in any hearing in a proceeding in probate may, in person or by attorney, waive in writing notice of such hearing. A trustee may make such a waiver on behalf of the beneficiary of his trust. A consul or other representative of a foreign government, whose appearance has been entered as provided by law on behalf of any person residing in a foreign country, may make such waiver of notice on behalf of such person. Any person who submits to the jurisdiction of the court in any hearing shall be deemed to have waived notice thereof.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 20, eff. Sept. 1, 1993.

Sec. 36. Duty and Responsibility of Judge.

(a) It shall be the duty of each county and probate court to use reasonable diligence to see that personal representatives of estates being administered under orders of the court and other officers of the court perform the duty enjoined upon them by law pertaining to such estates. The judge shall annually, if in his opinion the same be necessary, examine the condition of each of said estates and the solvency of the bonds of personal representatives of estates. He shall, at any time he finds that the personal representative’s bond is not sufficient to protect such estate, require such personal representatives to execute a new bond in accordance with law. In each case, he shall notify the personal representative, and the sureties on the bond, as provided by law; and should damage or loss result to estates through the gross neglect of the judge to use reasonable diligence in the performance of his duty, he shall be liable on his bond to those damaged by such neglect.

(b) The court may request an applicant or court-appointed fiduciary to produce other information identifying an applicant, decedent, or personal representative, including social security numbers, in addition to identifying information the applicant or fiduciary is required to produce under this code. The court shall maintain the information required under this subsection, and the information may not be filed with the clerk.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 979, ch. 375, Sec. 1, eff. June 19, 1975; Acts 1993, 73rd Leg., ch. 957, Sec. 21, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1302, Sec. 3, eff. Sept. 1, 1997.

Sec. 36B. Examination of Documents or Safe Deposit Box with Court Order.

(a) A judge of a court having probate jurisdiction of a decedent’s estate may order a person to permit a court representative named in the order to examine a decedent’s documents or safe deposit box if it is shown to the judge that:

      (1) the person may possess or control the documents or that the person leased the safe deposit box to the decedent; and

      (2) the documents or safe deposit box may contain a will of the decedent, a deed to a burial plot in which the decedent is to be buried, or an insurance policy issued in the decedent’s name and payable to a beneficiary named in the policy.

(b) The court representative shall examine the decedent’s documents or safe deposit box in the presence of:

      (1) the judge ordering the examination or an agent of the judge; and

      (2) the person who has possession or control of the documents or who leased the safe deposit box or, if the person is a corporation, an officer of the corporation or an agent of an officer.

Added by Acts 1981, 67th Leg., 1st C.S., p. 193, ch. 17, art. 3, Sec. 1, eff. Sept. 1, 1981.

Sec. 36C. Delivery of Document with Court Order.

(a) A judge who orders an examination by a court representative of a decedent’s documents or safe deposit box under Section 36B of this code may order the person who possesses or controls the documents or who leases the safe deposit box to permit the court representative to take possession of the following documents:

      (1) a will of the decedent;

      (2) a deed to a burial plot in which the decedent is to be buried; or

      (3) an insurance policy issued in the decedent’s name and payable to a beneficiary named in the policy.

(b) The court representative shall deliver:

      (1) the will to the clerk of a court that has probate jurisdiction and that is located in the same county as the court of the judge who ordered the examination;

      (2) the burial plot deed to the person designated by the judge in the order for the examination; or

      (3) the insurance policy to a beneficiary named in the policy.

(c) A court clerk to whom a will is delivered under Subsection (b) of this section shall issue a receipt for the will to the court representative who delivers it.

Added by Acts 1981, 67th Leg., 1st C.S., p. 193, ch. 17, art. 3, Sec. 1, eff. Sept. 1, 1981.

Sec. 36D. Examination of Document or Safe Deposit Box Without Court Order.

(a) A person who possesses or controls a document delivered by a decedent for safekeeping or who leases a safe deposit box to a decedent may permit any of the following persons to examine the document or the contents of the safe deposit box:

      (1) the spouse of the decedent;

      (2) a parent of the decedent;

      (3) a descendant of the decedent who is at least 18 years old; or

      (4) a person named as executor of the decedent’s estate in a copy of a document that the person has and that appears to be a will of the decedent.

(b) The examination shall be conducted in the presence of the person who possesses or controls the document or who leases the safe deposit box or, if the person is a corporation, an officer of the corporation.

Added by Acts 1981, 67th Leg., 1st C.S., p. 193, ch. 17, art. 3, Sec. 1, eff. Sept. 1, 1981.

Sec. 36E. Delivery of Document Without Court Order.

(a) A person who permits an examination of a decedent’s document or safe deposit box under Section 36D of this code may deliver:

      (1) a document appearing to be the decedent’s will to the clerk of a court that has probate jurisdiction and that is located in the county in which the decedent resided or to the person named in the document as an executor of the decedent’s estate;

      (2) a document appearing to be a deed to a burial plot in which the decedent is to be buried or appearing to give burial instructions to the person making the examination; or

      (3) a document appearing to be an insurance policy on the decedent’s life to a beneficiary named in the policy.

(b) A person who has leased a safe deposit box to the decedent shall keep a copy of a document appearing to be a will that the person delivers under Subsection (a) of this section. The person shall keep the copy for four years after the day of delivery.

(c) A person may not deliver a document under Subsection (a) of this section unless requested to do so by the person examining the document and unless the person examining the document issues a receipt for the document to the person who is to deliver it.

Added by Acts 1981, 67th Leg., 1st C.S., p. 193, ch. 17, art. 3, Sec. 1, eff. Sept. 1, 1981.

Sec. 36F. Restriction on Removal of Contents of Safe Deposit Box. A person may not remove the contents of a decedent’s safe deposit box except as provided by Section 36C or 36E of this code or except as provided by another law.

Added by Acts 1981, 67th Leg., 1st C.S., p. 193, ch. 17, art. 3, Sec. 1, eff. Sept. 1, 1981.

Chapter II. Descent and Distribution

Sec. 37. Passage of Title upon Intestacy and under a Will. When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will, and all powers of appointment granted in such will, shall vest immediately in the devisees or legatees of such estate and the donees of such powers; and all the estate of such person, not devised or bequeathed, shall vest immediately in his heirs at law; subject, however, to the payment of the debts of the testator or intestate, except such as is exempted by law, and subject to the payment of court-ordered child support payments that are delinquent on the date of the person’s death; and whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but with the exception aforesaid shall still be liable and subject in their hands to the payment of the debts of the intestate and the delinquent child support payments; but upon the issuance of letters testamentary or of administration upon any such estate, the executor or administrator shall have the right to possession of the estate as it existed at the death of the testator or intestate, with the exception aforesaid; and he shall recover possession of and hold such estate in trust to be disposed of in accordance with the law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1703, ch. 556, Sec. 2, eff. June 10, 1969; Acts 1981, 67th Leg., p. 2537, ch. 674, Sec. 3, eff. Sept. 1, 1981.

Sec. 37A. Means of Evidencing Disclaimer or Renunciation of Property or Interest Receivable from a Decedent.

(a) Persons Who May Disclaim. Any person, or the guardian of an incapacitated person, the personal representative of a deceased person, or the guardian ad litem of an unborn or unascertained person, with prior court approval of the court having, or which would have, jurisdiction over such guardian, personal representative, or guardian ad litem, or any independent executor of a deceased person, without prior court approval, or an attorney in fact or agent appointed under a durable power of attorney authorizing disclaimers that is executed by a principal, who may be entitled to receive any property as a beneficiary and who intends to effect disclaimer irrevocably on or after September 1, 1977, of the whole or any part of such property shall evidence same as herein provided.

(b) Effective Date of Disclaimer. A disclaimer evidenced as provided by this section shall be effective as of the death of decedent and shall relate back for all purposes to the death of the decedent and is not subject to the claims of any creditor of the disclaimant.

(c) Effect of Disclaimer. Unless the decedent’s will provides otherwise, the property subject to the disclaimer shall pass as if the person disclaiming or on whose behalf a disclaimer is made had predeceased the decedent and a future interest that would otherwise take effect in possession or enjoyment after the termination of the estate or interest that is disclaimed takes effect as if the disclaiming beneficiary had predeceased the decedent.

(d) Ineffective Disclaimer. Failure to comply with the provisions of this section shall render such disclaimer ineffective except as an assignment of such property to those who would have received same had the person attempting the disclaimer died prior to the decedent.

(e) Definitions. The term “property” as used in this section shall include all legal and equitable interests, powers, and property, whether present or future, whether vested or contingent, and whether beneficial or burdensome, in whole or in part. The term “disclaimer” as used in this section shall include “renunciation.” In this section “beneficiary” includes a person who would have been entitled, if the person had not made a disclaimer, to receive property as a result of the death of another person by inheritance, under a will, by an agreement between spouses for community property with a right of survivorship, by a joint tenancy with a right of survivorship, or by any other survivorship agreement, account, or interest in which the interest of the decedent passes to a surviving beneficiary, by an insurance, annuity, endowment, employment, deferred compensation, or other contract or arrangement, or under a pension, profit sharing, thrift, stock bonus, life insurance, survivor income, incentive, or other plan or program providing retirement, welfare, or fringe benefits with respect to an employee or a self-employed individual.

(f)  Subsequent Disclaimers. Nothing in this section shall be construed to preclude a subsequent disclaimer by any person who shall be entitled to property as a result of a disclaimer.

(g) Form of Disclaimer. In the case of property receivable by a beneficiary, the disclaimer shall be evidenced by a written memorandum, acknowledged before a notary public or other person authorized to take acknowledgments of conveyances of real estate.

(h) Time for Filing of Disclaimer. Unless the beneficiary is a charitable organization or governmental agency of the state, a written memorandum of disclaimer disclaiming a present interest shall be filed not later than nine months after the death of the decedent and a written memorandum of disclaimer disclaiming a future interest may be filed not later than nine months after the event determining that the taker of the property or interest is finally ascertained and his interest is indefeasibly vested. If the beneficiary is a charitable organization or a governmental agency of the state, a written memorandum of disclaimer disclaiming a present or future interest shall be filed not later than the later of:

      (1) the first anniversary of the date the beneficiary receives the notice required by Section 128A of this code; or

      (2) the expiration of the six-month period following the date the personal representative files:

            (A)      the inventory, appraisement, and list of claims due or owing to the estate; or

            (B)      the affidavit in lieu of the inventory, appraisement, and list of claims.

(h-1)    Filing of Disclaimer. The written memorandum of disclaimer shall be filed in the probate court in which the decedent’s will has been probated or in which proceedings have been commenced for the administration of the decedent’s estate or which has before it an application for either of the same; provided, however, if the administration of the decedent’s estate is closed, or after the expiration of one year following the date of the issuance of letters testamentary in an independent administration, or if there has been no will of the decedent probated or filed for probate, or if no administration of the decedent’s estate has been commenced, or if no application for administration of the decedent’s estate has been filed, the written memorandum of disclaimer shall be filed with the county clerk of the county of the decedent’s residence, or, if the decedent is not a resident of this state but real property or an interest therein located in this state is disclaimed, a written memorandum of disclaimer shall be filed with the county clerk of the county in which such real property or interest therein is located, and recorded by such county clerk in the deed records of that county.

(I)  Notice of Disclaimer. Unless the beneficiary is a charitable organization or governmental agency of the state, copies of any written memorandum of disclaimer shall be delivered in person to, or shall be mailed by registered or certified mail to and received by, the legal representative of the transferor of the interest or the holder of legal title to the property to which the disclaimer relates not later than nine months after the death of the decedent or, if the interest is a future interest, not later than nine months after the date the person who will receive the property or interest is finally ascertained and the person’s interest is indefeasibly vested. If the beneficiary is a charitable organization or government agency of the state, the notices required by this section shall be filed not later than the later of:

      (1) the first anniversary of the date the beneficiary receives the notice required by Section 128A of this code; or

      (2) the expiration of the six-month period following the date the personal representative files:

            (A)      the inventory, appraisement, and list of claims due or owing to the estate; or

            (B)      the affidavit in lieu of the inventory, appraisement, and list of claims.

(j)  Power to Provide for Disclaimer. Nothing herein shall prevent a person from providing in a will, insurance policy, employee benefit agreement, or other instrument for the making of disclaimers by a beneficiary of an interest receivable under that instrument and for the disposition of disclaimed property in a manner different from the provisions hereof.

(k) Irrevocability of Disclaimer. Any disclaimer filed and served under this section shall be irrevocable.

(l)  Partial Disclaimer. Any person who may be entitled to receive any property as a beneficiary may disclaim such property in whole or in part, including but not limited to specific powers of invasion, powers of appointment, and fee estate in favor of life estates; and a partial disclaimer or renunciation, in accordance with the provisions of this section, shall be effective whether the property so renounced or disclaimed constitutes a portion of a single, aggregate gift or constitutes part or all of a separate, independent gift; provided, however, that a partial disclaimer shall be effective only with respect to property expressly described or referred to by category in such disclaimer; and provided further, that a partial disclaimer of property which is subject to a burdensome interest created by the decedent’s will shall not be effective unless such property constitutes a gift which is separate and distinct from undisclaimed gifts.

(m)      Partial Disclaimer by Spouse. Without limiting Subsection (l) of this section, a disclaimer by the decedent’s surviving spouse of a transfer by the decedent is not a disclaimer by the surviving spouse of all or any part of any other transfer from the decedent to or for the benefit of the surviving spouse, regardless of whether the property or interest that would have passed under the disclaimed transfer passes because of the disclaimer to or for the benefit of the surviving spouse by the other transfer.

(n) Disclaimer After Acceptance. No disclaimer shall be effective after the acceptance of the property by the beneficiary. For the purpose of this subsection, acceptance shall occur only if the person making such disclaimer has previously taken possession or exercised dominion and control of such property in the capacity of beneficiary.

(o) Interest in Trust Property. A beneficiary who accepts an interest in a trust is not considered to have a direct or indirect interest in trust property that relates to a licensed or permitted business and over which the beneficiary exercises no control. Direct or indirect beneficial ownership of not more than five percent of any class of equity securities that is registered under the Securities Exchange Act of 1934 shall not be deemed to be an ownership interest in the business of the issuer of such securities within the meaning of any statute, pursuant thereto.

(p) Extension of Time for Certain Disclaimers. Notwithstanding the periods prescribed by Subsections (h) and (I) of this section, a disclaimer with respect to an interest in property passing by reason of the death of a decedent dying after December 31, 2009, but before December 17, 2010, may be executed and filed, and notice of the disclaimer may be given, not later than nine months after December 17, 2010. A disclaimer filed and for which notice is given during this extended period is valid and shall be treated as if the disclaimer had been filed and notice had been given within the periods prescribed by Subsections (h) and (I) of this section. This subsection does not apply to a disclaimer made by a beneficiary that is a charitable organization or governmental agency of the state.

Added by Acts 1971, 62nd Leg., p. 2954, ch. 979, Sec. 1, eff. Aug. 30, 1971. Amended by Acts 1977, 65th Leg., p. 1918, ch. 769, Sec. 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1741, ch. 713, Sec. 4, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 467, Sec. 2, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 895, Sec. 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 5, eff. Sept. 1, 1995. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 3.01, eff. September 1, 2007. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 37B. Assignment of Property Received from a Decedent.

(a) A person entitled to receive property or an interest in property from a decedent under a will, by inheritance, or as a beneficiary under a life insurance contract, and who does not disclaim the property under Section 37A of this code, may assign the property or interest in property to any person.

(b) The assignment may, at the request of the assignor, be filed as provided for the filing of a disclaimer under Section 37A(h) of this code. The filing requires the service of notice under Section 37A(I) of this code.

(c) Failure to comply with the provisions of Section 37A of this code does not affect an assignment under this section.

(d) An assignment under this section is a gift to the assignee and is not a disclaimer or renunciation under Section 37A of this code.

(e) An assignment that would defeat a spendthrift provision imposed in a trust may not be made under this section.

Added by Acts 1985, 69th Leg., ch. 880, Sec. 1, eff. Sept. 1, 1985. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 3.02, eff. September 1, 2007.

Sec. 37C. Satisfaction of Devise.

(a) Property given to a person by a testator during the testator’s lifetime is considered a satisfaction, either wholly or partly, of a devise to the person if:

      (1) the testator’s will provides for deduction of the lifetime gift;

      (2) the testator declares in a contemporaneous writing that the lifetime gift is to be deducted from or is in satisfaction of the devise; or

      (3) the devisee acknowledges in writing that the lifetime gift is in satisfaction of the devise.

(b) Property given in partial satisfaction of a devise shall be valued as of the earlier of the date on which the devisee acquires possession of or enjoys the property or the date on which the testator dies.

Added by Acts 2003, 78th Leg., ch. 1060, Sec. 7, eff. Sept. 1, 2003.

Sec. 38. Persons Who Take upon Intestacy.

(a) Intestate Leaving No Husband or Wife. Where any person, having title to any estate, real, personal or mixed, shall die intestate, leaving no husband or wife, it shall descend and pass in parcenary to his kindred, male and female, in the following course:

            1.   To his children and their descendants.

            2.   If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.

            3.   If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.

            4.   If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.

(b) Intestate Leaving Husband or Wife. Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:

            1.   If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.

            2.   If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 39. No Distinction Because of Property’s Source. There shall be no distinction in regulating the descent and distribution of the estate of a person dying intestate between property which may have been derived by gift, devise or descent from the father, and that which may have been derived by gift, devise or descent from the mother; and all the estate to which such intestate may have had title at the time of death shall descend and vest in the heirs of such person in the same manner as if he had been the original purchaser thereof.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 40. Inheritance by and from an Adopted Child. For purposes of inheritance under the laws of descent and distribution, an adopted child shall be regarded as the child of the parent or parents by adoption, such adopted child and its descendants inheriting from and through the parent or parents by adoption and their kin the same as if such child were the natural child of such parent or parents by adoption, and such parent or parents by adoption and their kin inheriting from and through such adopted child the same as if such child were the natural child of such parent or parents by adoption. The natural parent or parents of such child and their kin shall not inherit from or through said child, but, except as provided by Section 162.507(c), Family Code, the child shall inherit from and through its natural parent or parents. Nothing herein shall prevent any parent by adoption from disposing of his property by will according to law. The presence of this Section specifically relating to the rights of adopted children shall in no way diminish the rights of such children, under the laws of descent and distribution or otherwise, which they acquire by virtue of their inclusion in the definition of “child” which is contained in this Code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1989, 71st Leg., ch. 375, Sec. 34, eff. Sept. 1, 1989. Amended by: Acts 2005, 79th Leg., Ch. 169, Sec. 2, eff. September 1, 2005.

Sec. 41. Matters Affecting and Not Affecting the Right to Inherit.

(a) Persons Not in Being. No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.

(b) Heirs of Whole and Half Blood. In situations where the inheritance passes to the collateral kindred of the intestate, if part of such collateral be of the whole blood, and the other part be of the half blood only, of the intestate, each of those of half blood shall inherit only half so much as each of those of the whole blood; but if all be of the half blood, they shall have whole portions.

(c) Alienage. No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.

(d) Convicted Persons and Suicides. No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in wilfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.

(e) Parent-Child Relationship. A probate court may declare that the parent of a child under 18 years of age may not inherit from or through the child under the laws of descent and distribution if the court finds by clear and convincing evidence that the parent has:

      (1) voluntarily abandoned and failed to support the child in accordance with the parent’s obligation or ability for at least three years before the date of the child’s death, and did not resume support for the child before that date;

      (2) voluntarily and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from and failed to support the child since birth; or

      (3) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3, Family Code, for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following sections of the Penal Code:

            (A)   Section 19.02 (murder);

            (B)   Section 19.03 (capital murder);

            (c)    Section 19.04 (manslaughter);

            (D)   Section 21.11 (indecency with a child);

            (E)   Section 22.01 (assault);

            (F)    Section 22.011 (sexual assault);

            (G)   Section 22.02 (aggravated assault);

            (H)   Section 22.021 (aggravated sexual assault);

            (I)     Section 22.04 (injury to a child, elderly individual, or disabled individual);

            (J)    Section 22.041 (abandoning or endangering child);

            (K)   Section 25.02 (prohibited sexual conduct);

            (L)   Section 43.25 (sexual performance by a child); or

            (M)  Section 43.26 (possession or promotion of child pornography).

(f)  Treatment of Certain Relationships. On a determination that the parent of a child may not inherit from or through the child under Subsection (e) of this section, the parent shall be treated as if the parent predeceased the child for purposes of:

      (1) inheritance under the laws of descent and distribution; and

      (2) any other cause of action based on parentage.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 2, eff. June 12, 1969. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1412, Sec. 2, eff. September 1, 2007.

Sec. 42. Inheritance Rights of Children.

(a) Maternal Inheritance. For the purpose of inheritance, a child is the child of his biological or adopted mother, so that he and his issue shall inherit from his mother and from his maternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue.

(b) Paternal Inheritance.

      (1) For the purpose of inheritance, a child is the child of his biological father if the child is born under circumstances described by Section 160.201, Family Code, is adjudicated to be the child of the father by court decree as provided by Chapter 160, Family Code, was adopted by his father, or if the father executed an acknowledgment of paternity as provided by Subchapter D, Chapter 160, Family Code, or a like statement properly executed in another jurisdiction, so that he and his issue shall inherit from his father and from his paternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue. A person claiming to be a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, or claiming inheritance through a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the biological father of the child, the child is treated as any other child of the decedent for the purpose of inheritance and he and his issue may inherit from his paternal kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue. This section does not permit inheritance by a purported father of a child, whether recognized or not, if the purported father’s parental rights have been terminated.

      (2) A person who purchases for valuable consideration any interest in real or personal property of the heirs of a decedent, who in good faith relies on the declarations in an affidavit of heirship that does not include a child who at the time of the sale or contract of sale of the property is not a presumed child of the decedent and has not under a final court decree or judgment been found to be entitled to treatment under this subsection as a child of the decedent, and who is without knowledge of the claim of that child, acquires good title to the interest that the person would have received, as purchaser, in the absence of any claim of the child not included in the affidavit. This subdivision does not affect the liability, if any, of the heirs for the proceeds of any sale described by this subdivision to the child who was not included in the affidavit of heirship.

(c) Homestead Rights, Exempt Property, and Family Allowances. A child as provided by Subsections (a) and (b) of this section is a child of his mother, and a child of his father, for the purpose of determining homestead rights, distribution of exempt property, and the making of family allowances.

(d) Marriages Void and Voidable. The issue of marriages declared void or voided by annulment shall be treated in the same manner as issue of a valid marriage.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1977, 65th Leg., p. 762, ch. 290, Sec. 1, eff. May 28, 1977; Acts 1979, 66th Leg., p. 40, ch. 24, Sec. 25, eff. Aug. 27, 1979; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 5, eff. Aug. 27, 1979 ; Acts 1987, 70th Leg., ch. 464, Sec. 1, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 375, Sec. 35, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 165, Sec. 7.54, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1302, Sec. 4, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 821, Sec. 2.18, eff. June 14, 2001.

Sec. 43. Determination of per Capita and per Stirpes Distribution. When the intestate’s children, descendants, brothers, sisters, uncles, aunts, or any other relatives of the deceased standing in the first or same degree alone come into the distribution upon intestacy, they shall take per capita, namely: by persons; and, when a part of them being dead and a part living, the descendants of those dead shall have right to distribution upon intestacy, such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1991, 72nd Leg., ch. 895, Sec. 3, eff. Sept. 1, 1991.

Sec. 44. Advancements.

(a) If a decedent dies intestate as to all or a portion of the decedent’s estate, property the decedent gave during the decedent’s lifetime to a person who, on the date of the decedent’s death, is the decedent’s heir, or property received by a decedent’s heir under a nontestamentary transfer under Chapter XI of this code is an advancement against the heir’s intestate share only if:

      (1) the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift or nontestamentary transfer is an advancement; or

      (2) the decedent’s contemporaneous writing or the heir’s written acknowledgment otherwise indicates that the gift or nontestamentary transfer is to be taken into account in computing the division and distribution of the decedent’s intestate estate.

(b) For purposes of Subsection (a) of this section, property that is advanced is valued at the time the heir came into possession or enjoyment of the property or at the time of the decedent’s death, whichever occurs first.

(c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent’s intestate estate, unless the decedent’s contemporaneous writing provides otherwise.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 846, Sec. 4, eff. Sept. 1, 1993.

Sec. 45. Community Estate.

(a) On the intestate death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:

      (1) no child or other descendant of the deceased spouse survives the deceased spouse; or

      (2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.

(b) On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of this code. In every case, the community estate passes charged with the debts against it.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1991, 72nd Leg., ch. 895, Sec. 4, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 33, eff. Sept. 1, 1993.

Sec. 46. Joint Tenancies.

(a) If two or more persons hold an interest in property jointly, and one joint owner dies before severance, the interest of the decedent in the joint estate shall not survive to the remaining joint owner or owners but shall pass by will or intestacy from the decedent as if the decedent’s interest had been severed. The joint owners may agree in writing, however, that the interest of any joint owner who dies shall survive to the surviving joint owner or owners, but no such agreement shall be inferred from the mere fact that the property is held in joint ownership.

(b) Subsection (a) does not apply to agreements between spouses regarding their community property. Agreements between spouses regarding rights of survivorship in community property are governed by Part 3 of Chapter XI of this code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1961, 57th Leg., p. 233, ch. 120, Sec. 1, eff. May 15, 1961; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 3, eff. June 12, 1969; Acts 1981, 67th Leg., p. 895, ch. 319, Sec. 1, eff. Sept. 1, 1981; Acts 1987, 70th Leg., ch. 678, Sec. 2; Acts 1989, 71st Leg., ch. 655, Sec. 1, eff. Aug. 28, 1989.

Sec. 47. Requirement of Survival by 120 Hours.

(a) Survival of Heirs. A person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent’s heirs are determined accordingly, except as otherwise provided in this section. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive for the required period. This subsection does not apply where its application would result in the escheat of an intestate estate.

(b) Disposal of Community Property. When a husband and wife have died, leaving community property, and neither the husband nor wife survived the other by 120 hours, one-half of all community property shall be distributed as if the husband had survived, and the other one-half thereof shall be distributed as if the wife had survived. The provisions of this subsection apply to proceeds of life or accident insurance which are community property and become payable to the estate of either the husband or the wife, as well as to other kinds of community property.

(c) Survival of Devisees or Beneficiaries. A devisee who does not survive the testator by 120 hours is treated as if he predeceased the testator, unless the will of the decedent contains some language dealing explicitly with simultaneous death or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will. If property is so disposed of that the right of a beneficiary to succeed to any interest therein is conditional upon his surviving another person, the beneficiary shall be deemed not to have survived unless he or she survives the person by 120 hours. However, if any interest in property is given alternatively to one of two or more beneficiaries, with the right of each to take being dependent upon his surviving the other or others, and all shall die within a period of less than 120 hours, the property shall be divided into as many equal portions as there are beneficiaries, and those portions shall be distributed respectively to those who would have taken in the event that each beneficiary had survived.

(d) Joint Owners. If any real or personal property, including community property with a right of survivorship, shall be so owned that one of two joint owners is entitled to the whole on the death of the other, and neither survives the other by 120 hours, these assets shall be distributed one-half as if one joint owner had survived and the other one-half as if the other joint owner had survived. If there are more than two joint owners and all have died within a period of less than 120 hours, these assets shall be divided into as many equal portions as there are joint owners and these portions shall be distributed respectively to those who would have taken in the event that each joint owner survived.

(e) Insured and Beneficiary. When the insured and a beneficiary in a policy of life or accident insurance have died within a period of less than 120 hours, the insured shall be deemed to have survived the beneficiary for the purpose of determining the rights under the policy of the beneficiary or beneficiaries as such. The provisions of this subsection shall not prevent the application of subsection (b) above to the proceeds of life or accident insurance which are community property.

(f)  Instruments Providing Different Disposition. When provision has been made in the case of wills, living trusts, deeds, or contracts of insurance, or any other situation, for disposition of property different from the provisions of this Section, this Section shall not apply.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1965, 59th Leg., p. 279, ch. 119, Sec. 1, eff. Aug. 30, 1965; Acts 1979, 66th Leg., p. 1743, ch. 713, Sec. 6, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 846, Sec. 5, eff. Sept. 1, 1993.

Sec. 47A. Marriage Voidable Based on Mental Incapacity.

(a) If a proceeding under Chapter 6, Family Code, to declare a marriage void based on the lack of mental capacity of one of the parties to the marriage is pending on the date of death of one of those parties, or if a guardianship proceeding in which a court is requested under Chapter 6, Family Code, to declare a ward’s or proposed ward’s marriage void based on the lack of mental capacity of the ward or proposed ward is pending on the date of death of the ward or proposed ward, the court may make the determination and declare the marriage void after the decedent’s death. In making that determination after the decedent’s death, the court shall apply the standards for an annulment prescribed by Section 6.108(a), Family Code.

(b) Subject to Subsection (c) of this section, if a proceeding described by Subsection (a) of this section is not pending on the date of a decedent’s death, an interested person may file an application with the court requesting that the court void the marriage of the decedent if, on the date of the decedent’s death, the decedent was married, and that marriage commenced not earlier than three years before the decedent’s date of death. The notice applicable to a proceeding for a declaratory judgment under Chapter 37, Civil Practice and Remedies Code, applies to a proceeding under this subsection.

(c) An application requesting that the court void a decedent’s marriage authorized by Subsection (b) of this section may not be filed after the first anniversary of the date of the decedent’s death.

(d) Except as provided by Subsection (e) of this section, in a proceeding brought under Subsection (b) of this section, the court shall declare the decedent’s marriage void if the court finds that, on the date the marriage occurred, the decedent did not have the mental capacity to:

      (1) consent to the marriage; and

      (2) understand the nature of the marriage ceremony, if a ceremony occurred.

(e) In a proceeding brought under Subsection (b) of this section, a court that makes a finding described by Subsection (d) of this section may not declare the decedent’s marriage void if the court finds that, after the date the marriage occurred, the decedent:

      (1) gained the mental capacity to recognize the marriage relationship; and

      (2) did recognize the marriage relationship.

(f)  If the court declares a decedent’s marriage void in a proceeding described by Subsection (a) of this section or brought under Subsection (b) of this section, the other party to the marriage is not considered the decedent’s surviving spouse for purposes of any law of this state.

Added by Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 4.01, eff. September 1, 2007.

Chapter III. Determination of Heirship

Sec. 48. Proceedings to Declare Heirship.

(a) When a person dies intestate owning or entitled to real or personal property in Texas, and there shall have been no administration in this State upon the person’s estate; or when it is necessary for the trustee of a trust holding assets for the benefit of a decedent to determine the heirs of the decedent; or when there has been a will probated in this State or elsewhere, or an administration in this State upon the estate of such decedent, and any real or personal property in this State has been omitted from such will or from such administration, or no final disposition thereof has been made in such administration, the court of the county in which venue would be proper under Section 6C of this code may determine and declare in the manner hereinafter provided who are the heirs and only heirs of such decedent, and their respective shares and interests, under the laws of this State, in the estate of such decedent or, if applicable, in the trust, and proceedings therefor shall be known as proceedings to declare heirship.

(b) If an application for determination of heirship is filed within four (4) years from the date of the death of the decedent, the applicant may request that the court determine whether a necessity for administration exists. The court shall hear evidence upon the issue and make a determination thereof in its judgment.

(c) [Repealed.]

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 971, ch. 173, Sec. 4, eff. Jan. 1, 1972; Acts 1977, 65th Leg., p. 1521, ch. 616, Sec. 1, eff. Aug. 29, 1977. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 2.02, eff. September 1, 2007. Amended by: Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 49. Who May Institute Proceedings to Declare Heirship.

(a) Such proceedings may be instituted and maintained under a circumstance specified in Section 48(a) of this code by the qualified personal representative of the estate of such decedent, by a party seeking the appointment of an independent administrator under Section 145 of this code, by the trustee of a trust holding assets for the benefit of the decedent, by any person or persons claiming to be a secured creditor or the owner of the whole or a part of the estate of such decedent, or by the guardian of the estate of a ward, if the proceedings are instituted and maintained in the probate court in which the proceedings for the guardianship of the estate were pending at the time of the death of the ward. In such a case an application shall be filed in a proper court stating the following information:

      (1) the name of the decedent and the time and place of death;

      (2) the names and residences of the decedent’s heirs, the relationship of each heir to the decedent, and the true interest of the applicant and each of the heirs in the estate of the decedent or in the trust, as applicable;

      (3) all the material facts and circumstances within the knowledge and information of the applicant that might reasonably tend to show the time or place of death or the names or residences of all heirs, if the time or place of death or the names or residences of all the heirs are not definitely known to the applicant;

      (4) a statement that all children born to or adopted by the decedent have been listed;

      (5) a statement that each marriage of the decedent has been listed with the date of the marriage, the name of the spouse, and if the marriage was terminated, the date and place of termination, and other facts to show whether a spouse has had an interest in the property of the decedent;

      (6) whether the decedent died testate and if so, what disposition has been made of the will;

      (7) a general description of all the real and personal property belonging to the estate of the decedent or held in trust for the benefit of the decedent, as applicable; and

      (8) an explanation for the omission of any of the foregoing information that is omitted from the application.

(b) Such application shall be supported by the affidavit of each applicant to the effect that, insofar as is known to such applicant, all the allegations of such application are true in substance and in fact and that no such material fact or circumstance has, within the affiant’s knowledge, been omitted from such application. The unknown heirs of such decedent, all persons who are named in the application as heirs of such decedent, and all persons who are, at the date of the filing of the application, shown by the deed records of the county in which any of the real property described in such application is situated to own any share or interest in any such real property, shall be made parties in such proceeding.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 971, ch. 173, Sec. 4, eff. Jan. 1, 1972; Acts 1977, 65th Leg., p. 1522, ch. 616, Sec. 2, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1744, ch. 713, Sec. 7, eff. Aug. 27, 1979; Acts 1983, 68th Leg., p. 629, ch. 139, Sec. 1, eff. Sept. 1, 1983; Acts 1985, 69th Leg., ch. 693, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 50. Notice.

(a) Citation shall be served by registered or certified mail upon all distributees 12 years of age or older whose names and addresses are known, or whose names and addresses can be learned through the exercise of reasonable diligence, provided that the court may in its discretion require that service of citation shall be made by personal service upon some or all of those named as distributees in the application. Citation shall be served as provided by this subsection on the parent, managing conservator, or guardian of a distributee who is younger than 12 years of age, if the name and address of the parent, managing conservator, or guardian is known or can be reasonably ascertained.

(b) If the address of a person or entity on whom citation is required to be served cannot be ascertained, citation shall be served on the person or entity by publication in the county in which the proceedings are commenced, and if the decedent resided in another county, then a citation shall also be published in the county of the decedent’s last residence. To determine whether there are any other heirs, citation shall also be served on unknown heirs by publication in the manner provided by this subsection.

(c) Except in proceedings in which there is service of citation by publication as provided by Subsection (b) of this section, citation shall also be posted in the county in which the proceedings are commenced and in the county of the decedent’s last residence.

(d) A party to the proceedings who has executed the application need not be served by any method.

(e) A parent, managing conservator, guardian, attorney ad litem, or guardian ad litem of a distributee who is at least 12 years of age but younger than 19 years of age may not waive citation required to be served on the distributee under this section.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 971, ch. 173, Sec. 4, eff. Jan. 1, 1972; Acts 1979, 66th Leg., p. 1745, ch. 713, Sec. 8, eff. Aug. 29, 1979; Acts 1997, 75th Leg., ch. 1130, Sec. 1, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 664, Sec. 2, eff. Sept. 1, 2001.

Sec. 51. Transfer of Proceeding When Will Probated or Administration Granted. If an administration upon the estate of any such decedent shall be granted in the State, or if the will of such decedent shall be admitted to probate in this State, after the institution of a proceeding to declare heirship, the court in which such proceeding is pending shall, by an order entered of record therein, transfer the cause to the court of the county in which such administration shall have been granted, or such will shall have been probated, and thereupon the clerk of the court in which such proceeding was originally filed shall send to the clerk of the court named in such order, a certified transcript of all pleadings, entries in the judge’s probate docket, and orders of the court in such cause. The clerk of the court to which such cause shall be transferred shall file the transcript and record the same in the judge’s probate docket of that court and shall docket such cause, and the same shall thereafter proceed as though originally filed in that court. The court, in its discretion, may consolidate the cause so transferred with the pending proceeding.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 971, ch. 173, Sec. 4, eff. Jan. 1, 1972. Amended by Acts 2009, 81st Leg., Ch. 602, §4, eff. June 19, 2009.

Sec. 52. Recorded Instruments as Prima Facie Evidence.

(a) A 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 suit involving title to real or personal property, as prima facie evidence of the facts therein stated, if the 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 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; Acts 1991, 72nd Leg., ch. 895, Sec. 5, eff. Sept. 1, 1991; Acts 1999, 76th Leg., ch. 1538, Sec. 1, 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, 76th Leg., ch. 1538, Sec. 2, eff. Sept. 1, 1999.

Sec. 53. Evidence; Unknown Parties and Incapacitated Persons.

(a) The court in its discretion may require all or any part of the evidence admitted in a proceeding to declare heirship to be reduced to writing, and subscribed and sworn to by the witnesses, respectively, and filed in the cause, and recorded in the judge’s probate docket.

(b) If it appears to the court that there are or may be living heirs whose names or whereabouts are unknown, or that any defendant is an incapacitated person, the court may, in its discretion, appoint an attorney ad litem or guardian ad litem to represent the interests of any such persons. The court may not appoint an attorney ad litem or guardian ad litem unless the court finds that the appointment is necessary to protect the interests of the living heir or incapacitated person.

(c) The court shall appoint an attorney ad litem to represent the interests of unknown heirs.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 971, ch. 173, Sec. 4, eff. Jan. 1, 1972; Acts 1995, 74th Leg., ch. 1039, Sec. 6, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 664, Sec. 3, 4, eff. Sept. 1, 2001. Amended by Acts 2009, 81st Leg., Ch. 602, §5, eff. June 19, 2009.

Sec. 53A. Order for Genetic Testing Authorized.

(a) In a proceeding to declare heirship under this chapter, the court may, on the court’s own motion, and shall, on the request of a party to the proceeding, order one or more specified individuals to submit to genetic testing as provided for in Subchapter F, Chapter 160, Family Code. If two or more individuals are ordered to be tested, the court may order that the testing of those individuals be done concurrently or sequentially. The court may enforce an order under this subsection by contempt.

(b) Subject to any assessment of costs following the proceeding in accordance with Rule 131, Texas Rules of Civil Procedure, the cost of genetic testing ordered under Subsection (a) of this section must be advanced:

      (1) by a party to the proceeding who requests the testing;

      (2) as agreed by the parties and approved by the court; or

      (3) as ordered by the court.

(c) Subject to Subsection (d) of this section, the court shall order genetic testing subsequent to the testing conducted under Subsection (a) of this section if:

      (1) a party to the proceeding contests the results of the genetic testing ordered under Subsection (a) of this section; and

      (2) the party contesting the results requests that additional testing be conducted.

(d) If the results of the genetic testing ordered under Subsection (a) of this section identify a tested individual as an heir of the decedent, the court may order additional genetic testing in accordance with Subsection (c) of this section only if the party contesting those results pays for the additional testing in advance.

(e) If a sample of an individual’s genetic material that could identify another individual as the decedent’s heir is not available for purposes of conducting genetic testing under this section, the court, on a finding of good cause and that the need for genetic testing outweighs the legitimate interests of the individual to be tested, may order any of the following other individuals to submit a sample of genetic material for the testing under circumstances the court considers just:

      (1) a parent, sibling, or child of the individual whose genetic material is not available; or

      (2) any other relative of that individual, as necessary to conduct the testing.

(f)  On good cause shown, the court may order:

      (1) genetic testing of a deceased individual under this section; and

      (2) if necessary, removal of the remains of the deceased individual as provided by Section 711.004, Health and Safety Code, for that testing.

(g) An individual commits an offense if the individual intentionally releases an identifiable sample of the genetic material of another individual that was provided for purposes of genetic testing ordered under this section, the release is for a purpose not related to the proceeding to declare heirship, and the release was not ordered by the court or done in accordance with written permission obtained from the individual who provided the sample. An offense under this subsection is a Class A misdemeanor.

Added by Acts 2007, 80th Leg., R.S., Ch. 566, Sec. 1, eff. September 1, 2007.

Sec. 53B. Results of Genetic Testing; Admissibility.

(a) A report of the results of genetic testing ordered under Section 53A of this chapter:

      (1) must comply with the requirements for a report prescribed by Section 160.504, Family Code; and

      (2) is admissible in a proceeding to declare heirship under this chapter as evidence of the truth of the facts asserted in the report.

(b) The presumption under Section 160.505, Family Code, applies to the results of genetic testing ordered under this section, and the presumption may be rebutted as provided by that section.

(c) A party to the proceeding who contests the results of genetic testing may call one or more genetic testing experts to testify in person or by telephone, videoconference, deposition, or another method approved by the court. Unless otherwise ordered by the court, the party offering the testimony bears the expense for the expert testifying.

Added by Acts 2007, 80th Leg., R.S., Ch. 566, Sec. 1, eff. September 1, 2007.

Sec. 53C. Use of Genetic Testing Results in Certain Proceedings to Declare Heirship.

(a) This section applies in a proceeding to declare heirship of a decedent only with respect to an individual who:

      (1) petitions the court for a determination of right of inheritance as authorized by Section 42(b) of this code; and

      (2) claims to be a biological child of the decedent, but with respect to whom a parent-child relationship with the decedent was not established as provided by Section 160.201, Family Code, or who claims inheritance through a biological child of the decedent, if a parent-child relationship between the individual through whom the inheritance is claimed and the decedent was not established as provided by Section 160.201, Family Code.

(b) Unless the results of genetic testing of another individual who is an heir of the decedent are admitted as rebuttal evidence, the court shall find that the individual described by Subsection (a) of this section is an heir of the decedent if the results of genetic testing ordered under Section 53A of this chapter identify a tested individual who is an heir of the decedent as the ancestor of the individual described by Subsection (a) of this section.

(c) Unless the results of genetic testing of another individual who is an heir of the decedent are admitted as rebuttal evidence, the court shall find that the individual described by Subsection (a) of this section is not an heir of the decedent if the results of genetic testing ordered under Section 53A of this chapter exclude a tested individual who is an heir of the decedent as the ancestor of the individual described by Subsection (a) of this section.

(d) If the results of genetic testing ordered under Section 53A of this chapter do not identify or exclude a tested individual as the ancestor of the individual described by Subsection (a) of this section:

      (1) the court may not dismiss the proceeding to declare heirship; and

      (2) the results of the genetic testing and other relevant evidence are admissible in the proceeding.

Added by Acts 2007, 80th Leg., R.S., Ch. 566, Sec. 1, eff. September 1, 2007.

Sec. 53D. Additional Orders Authorized. On the request of an individual determined by the results of genetic testing to be the heir of a decedent and for good cause shown, the court may:

      (1) order the name of the individual to be changed; and

      (2) if the court orders a name change under Subdivision (1) of this section, order the bureau of vital statistics to issue an amended birth record for the individual.

Added by Acts 2007, 80th Leg., R.S., Ch. 566, Sec. 1, eff. September 1, 2007.

Sec. 53E. Proceedings and Records Public. A proceeding under this chapter involving genetic testing is open to the public as in other civil cases, and papers and records in the proceeding are available for public inspection.

Added by Acts 2007, 80th Leg., R.S., Ch. 566, Sec. 1, eff. September 1, 2007.

Sec. 54. Judgment. The judgment of the court in a proceeding to declare heirship shall declare the names and places of residence of the heirs of the decedent, and their respective shares and interests in the real and personal property of such decedent. If the proof is in any respect deficient, the judgment shall so state.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 971, ch. 173, Sec. 4, eff. Jan. 1, 1972.

Sec. 55. Effect of Judgment.

(a) Such judgment shall be a final judgment, and may be appealed or reviewed within the same time limits and in the same manner as may other judgments in probate matters at the instance of any interested person. If any person who is an heir of the decedent is not served with citation by registered or certified mail, or by personal service, he may at any time within four years from the date of such judgment have the same corrected by bill of review, or upon proof of actual fraud, after the passage of any length of time, and may recover from the heirs named in the judgment, and those claiming under them who are not bona fide purchasers for value, his just share of the property or its value.

(b) Although such judgment may later be modified, set aside, or nullified, it shall nevertheless be conclusive in any suit between any heir omitted from the judgment and a bona fide purchaser for value who has purchased real or personal property after entry of the judgment without actual notice of the claim of the omitted heir. Similarly, any person who has delivered funds or property of the decedent to the persons declared to be heirs in the judgment, or has engaged in any other transaction with them, in good faith, after entry of such judgment, shall not be liable therefor to any person.

(c) If the court states in its judgment that there is no necessity for administration on the estate, such recital shall constitute authorization to all persons owing any money to the estate of the decedent, or having custody of any property of such estate, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the estate, and to persons purchasing from or otherwise dealing with the heirs as determined in the judgment, to pay, deliver, or transfer such property or evidence of property rights to such heirs, or to purchase property from such heirs, without liability to any creditor of the estate or other person. Such heirs shall be entitled to enforce their right to payment, delivery, or transfer by suit. Nothing in this chapter shall affect the rights or remedies of the creditors of the decedent except as provided in this subsection.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 971, ch. 173, Sec. 4, eff. Jan. 1, 1972; Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 9, eff. Aug. 29, 1979.

Sec. 56. Filing of Certified Copy of Judgment. A certified copy of such judgment may be filed for record in the office of the county clerk of the county in which any of the real property described in such judgment is situated, and recorded in the deed records of such county, and indexed in the name of such decedent as grantor and of the heirs named in such judgment as grantees; and, from and after such filing, such judgment shall constitute constructive notice of the facts set forth therein.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Chapter IV. Execution and Revocation of Wills

Sec. 57. Who May Execute a Will. Every person who has attained the age of eighteen years, or who is or has been lawfully married, or who is a member of the armed forces of the United States or of the auxiliaries thereof or of the maritime service at the time the will is made, being of sound mind, shall have the right and power to make a last will and testament, under the rules and limitations prescribed by law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 801, ch. 334, Sec. 1, eff. Aug. 28, 1967.

Sec. 58. Interests Which May Pass under a Will.

(a) Every person competent to make a last will and testament may thereby devise and bequeath all the estate, right, title, and interest in property the person has at the time of the person’s death, subject to the limitations prescribed by law.

(b) A person who makes a last will and testament may:

      (1) disinherit an heir; and

      (2) direct the disposition of property or an interest passing under the will or by intestacy.

(c) A legacy of personal property does not include any contents of the property unless the will directs that the contents are included in the legacy. A devise of real property does not include any personal property located on or associated with the real property or any contents of personal property located on the real property unless the will directs that the personal property or contents are included in the devise.

(d) In this section:

      (1) “Contents” means tangible personal property, other than titled personal property, found inside of or on a specifically bequeathed or devised item. The term includes clothing, pictures, furniture, coin collections, and other items of tangible personal property that do not require a formal transfer of title and that are located in another item of tangible personal property such as a cedar chest or other furniture.

      (2) “Titled personal property” includes all tangible personal property represented by a certificate of title, certificate of ownership, written label, marking, or designation that signifies ownership by a person. The term includes a motor vehicle, motor home, motorboat, or other similar property that requires a formal transfer of title.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1991, 72nd Leg., ch. 895, Sec. 6, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 6, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 642, Sec. 1, eff. Sept. 1, 1995.

Sec. 58a. Devises or Bequests to Trustees.

(a) A testator may validly devise or bequeath property in a will to the trustee of a trust established or to be established:

      (1) during the testator’s lifetime by the testator, by the testator and another person, or by another person, including a funded or unfunded life insurance trust, in which the settlor has reserved any or all rights of ownership of the insurance contracts; or

      (2) at the testator’s death by the testator’s devise or bequest to the trustee, if the trust is identified in the testator’s will and its terms are in a written instrument, other than a will, that is executed before, with, or after the execution of the testator’s will or in another person’s will if that other person has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust.

(b) A devise or bequest is not invalid because the trust is amendable or revocable or because the trust was amended after the execution of the will or the testator’s death.

(c) Unless the testator’s will provides otherwise, property devised or bequeathed to a trust described by Subsection (a) of this section is not held under a testamentary trust of the testator. The property becomes a part of the trust to which it is devised or bequeathed and must be administered and disposed of in accordance with the provisions of the instrument establishing the trust, including any amendments to the instrument made before or after the testator’s death.

(d) Unless the testator’s will provides otherwise, a revocation or termination of the trust before the testator’s death causes the devise or bequest to lapse.

Added by Acts 1961, 57th Leg., p. 43, ch. 29, Sec. 1. Amended by Acts 1993, 73rd Leg., ch. 846, Sec. 7, eff. Sept. 1, 1993.

Sec. 58b. Devises and Bequests That Are Void.

(a) A devise or bequest of property in a will is void if the devise or bequest is made to:

      (1) an attorney who prepares or supervises the preparation of the will;

      (2) a parent, descendant of a parent, or employee of the attorney described by Subdivision (1) of this subsection; or

      (3) a spouse of an individual described by Subdivision (1) or (2) of this subsection.

(b) This section does not apply to:

      (1) a devise or bequest made to a person who:

            (a) is the testator’s spouse;

            (b) is an ascendant or descendant of the testator; or

            (c) is related within the third degree by consanguinity or affinity to the testator; or

      (2) a bona fide purchaser for value from a devisee in a will.Added by Acts 1997, 75th Leg., ch. 1054, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 527, Sec. 1, eff. June 11, 2001. Amended by: Acts 2005, 79th Leg., Ch. 551, Sec. 2, eff. September 1, 2005.

Sec. 58c. Exercise of Power of Appointment. A testator may not exercise a power of appointment through a residuary clause in the testator’s will or through a will providing for general disposition of all the testator’s property unless:

      (1) the testator makes a specific reference to the power in the will; or

      (2) there is some other indication in writing that the testator intended to include the property subject to the power in the will.

Added by Acts 2003, 78th Leg., ch. 1060, Sec. 8, eff. Sept. 1, 2003.

Sec. 59. Requisites of a Will.

(a) Every last will and testament, except where otherwise provided by law, shall be in writing and signed by the testator in person or by another person for him by his direction and in his presence, and shall, if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the presence of the testator. Such a will or testament may, at the time of its execution or at any subsequent date during the lifetime of the testator and the witnesses, be made self-proved, and the testimony of the witnesses in the probate thereof may be made unnecessary, by the affidavits of the testator and the attesting witnesses, made before an officer authorized to administer oaths. Provided that nothing shall require an affidavit or certificate of any testator or testatrix as a prerequisite to self-proof of a will or testament other than the certificate set out below. The affidavits shall be evidenced by a certificate, with official seal affixed, of such officer attached or annexed to such will or testament in form and contents substantially as follows:

THE STATE OF TEXAS

COUNTY OF ________________

Before me, the undersigned authority, on this day personally appeared _______________, _______________, and _______________, known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said _______________, testator, declared to me and to the said witnesses in my presence that said instrument is his last will and testament, and that he had willingly made and executed it as his free act and deed; and the said witnesses, each on his oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his last will and testament, and that he executed same as such and wanted each of them to sign it as a witness; and upon their oaths each witness stated further that they did sign the same as witnesses in the presence of the said testator and at his request; that he was at that time eighteen years of age or over (or being under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen years of age.

___________________________

Testator

___________________________

Witness

___________________________

Witness

 Subscribed and sworn to before me by the said ____________, testator, and by the said ________________ and _______________, witnesses, this ______ day of________________ A.D. ________________.

(SEAL)

 (Signed)____________________________

 (Official Capacity of Officer)

(a-1)    As an alternative to the self-proving of a will by the affidavits of the testator and the attesting witnesses under Subsection (a) of this section, a will may be simultaneously executed, attested, and made self-proved before an officer authorized to administer oaths, and the testimony of the witnesses in the probate of the will may be made unnecessary, with the inclusion in the will of the following in form and contents substantially as follows:

      I, ______________________, as testator, after being duly sworn, declare to the undersigned witnesses and to the undersigned authority that this instrument is my will, that I have willingly made and executed it in the presence of the undersigned witnesses, all of whom were present at the same time, as my free act and deed, and that I have requested each of the undersigned witnesses to sign this will in my presence and in the presence of each other. I now sign this will in the presence of the attesting witnesses and the undersigned authority on this ______ day of __________, 20________________.

____________________________________
Testator

The undersigned, __________ and __________, each being above fourteen years of age, after being duly sworn, declare to the testator and to the undersigned authority that the testator declared to us that this instrument is the testator’s will and that the testator requested us to act as witnesses to the testator’s will and signature. The testator then signed this will in our presence, all of us being present at the same time. The testator is eighteen years of age or over (or being under such age, is or has been lawfully married, or is a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service), and we believe the testator to be of sound mind. We now sign our names as attesting witnesses in the presence of the testator, each other, and the undersigned authority on this __________ day of __________, 20______________.

___________________________
Witness

___________________________
Witness

Subscribed and sworn to before me by the said _________, testator, and by the said _____________ and ______________, witnesses, this _____ day of __________, 20____________.

(SEAL)

(Signed) __________________
(Official Capacity of Officer)

(b) An affidavit in form and content substantially as provided by Subsection (a) of this section is a “self-proving affidavit.” A will with a self-proving affidavit subscribed and sworn to by the testator and witnesses attached or annexed to the will, or a will simultaneously executed, attested, and made self-proved as provided by Subsection (a-1) of this section, is a “self-proved will.” Substantial compliance with the form provided by Subsection (a) or (a-1) of this section shall suffice to cause the will to be self-proved. For this purpose, an affidavit that is subscribed and acknowledged by the testator and subscribed and sworn to by the witnesses would suffice as being in substantial compliance. A signature on a self-proving affidavit as provided by Subsection (a) of this section is considered a signature to the will if necessary to prove that the will was signed by the testator or witnesses, or both, but in that case, the will may not be considered a self-proved will.

(c) A self-proved will may be admitted to probate without the testimony of any subscribing witness, but otherwise it shall be treated no differently than a will not self-proved. In particular and without limiting the generality of the foregoing, a self-proved will may be contested, or revoked or amended by a codicil in exactly the same fashion as a will not self-proved.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1961, 57th Leg., p. 936, ch. 412, Sec. 1, eff. June 17, 1961; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 5, eff. June 12, 1969; Acts 1971, 62nd Leg., p. 974, ch. 173, Sec. 5, eff. Jan. 1, 1972; Acts 1991, 72nd Leg., ch. 895, Sec. 7, eff. Sept. 1, 1991. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 59A. Contracts Concerning Succession.

(a) A contract to make a will or devise, or not to revoke a will or devise, if executed or entered into on or after September 1, 1979, can be established only by:

      (1) provisions of a written agreement that is binding and enforceable; or

      (2) provisions of a will stating that a contract does exist and stating the material provisions of the contract.

(b) The execution of a joint will or reciprocal wills does not by itself suffice as evidence of the existence of a contract.

Added by Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 10, eff. Aug. 27, 1979. Subsec. (a) amended by Acts 2003, 78th Leg., ch. 1060, Sec. 9, eff. Sept. 1, 2003.

Sec. 60. Exception Pertaining to Holographic Wills. Where the will is written wholly in the handwriting of the testator, the attestation of the subscribing witnesses may be dispensed with. Such a will may be made self-proved at any time during the testator’s lifetime by the attachment or annexation thereto of an affidavit by the testator to the effect that the instrument is his last will; that he was at least eighteen years of age when he executed it (or, if under such age, was or had been lawfully married, or was then a member of the armed forces of the United States or of an auxiliary thereof or of the Maritime Service); that he was of sound mind; and that he has not revoked such instrument.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 6, eff. June 12, 1969.

Sec. 61. Bequest to Witness. Should any person be a subscribing witness to a will, and also be a legatee or devisee therein, if the will cannot be otherwise established, such bequest shall be void, and such witness shall be allowed and compelled to appear and give his testimony in like manner as if no such bequest had been made. But, if in such case the witness would have been entitled to a share of the estate of the testator had there been no will, he shall be entitled to as much of such share as shall not exceed the value of the bequest to him in the will.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 62. Corroboration of Testimony of Interested Witness. In the situation covered by the preceding Section, the bequest to the subscribing witness shall not be void if his testimony proving the will is corroborated by one or more disinterested and credible persons who testify that the testimony of the subscribing witness is true and correct, and such subscribing witness shall not be regarded as an incompetent or non-credible witness under Section 59 of this Code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 63. Revocation of Wills. No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 64. Forfeiture Clause. A provision in a will that would cause a forfeiture of or void a devise or provision in favor of a person for bringing any court action, including contesting a will, is unenforceable if:

      (1) just cause existed for bringing the action; and

      (2) the action was brought and maintained in good faith.

Added by Acts 2009, 81st Legislature, Ch. 602, §1, eff. June 19, 2009. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 67. Pretermitted Child.

(a) Whenever a pretermitted child is not mentioned in the testator’s will, provided for in the testator’s will, or otherwise provided for by the testator, the pretermitted child shall succeed to a portion of the testator’s estate as provided by Subsection (a)(1) or (a)(2) of this section, except as limited by Subsection (e) of this section.

      (1) If the testator has one or more children living when he executes his last will, and:

            (a) No provision is made therein for any such child, a pretermitted child succeeds to the portion of the testator’s separate and community estate to which the pretermitted child would have been entitled pursuant to Section 38(a) of this code had the testator died intestate without a surviving spouse owning only that portion of his estate not devised or bequeathed to the parent of the pretermitted child.

            (b) Provision, whether vested or contingent, is made therein for one or more of such children, a pretermitted child is entitled to share in the testator’s estate as follows:

                  (I)  The portion of the testator’s estate to which the pretermitted child is entitled is limited to the disposition made to children under the will.

                  (ii) The pretermitted child shall receive such share of the testator’s estate, as limited in Subparagraph (I), as he would have received had the testator included all pretermitted children with the children upon whom benefits were conferred under the will, and given an equal share of such benefits to each such child.

                  (iii)      To the extent that it is feasible, the interest of the pretermitted child in the testator’s estate shall be of the same character, whether an equitable or legal life estate or in fee, as the interest that the testator conferred upon his children under the will.

      (2) If the testator has no child living when he executes his last will, the pretermitted child succeeds to the portion of the testator’s separate and community estate to which the pretermitted child would have been entitled pursuant to Section 38(a) of this code had the testator died intestate without a surviving spouse owning only that portion of his estate not devised or bequeathed to the other parent of the pretermitted child.

(b) The pretermitted child may recover the share of the testator’s estate to which he is entitled either from the other children under Subsection (a)(1)(B) or the testamentary beneficiaries under Subsections (a)(1)(A) and (a)(2) other than the other parent of the pretermitted child, ratably, out of the portions of such estate passing to such persons under the will. In abating the interests of such beneficiaries, the character of the testamentary plan adopted by the testator shall be preserved to the maximum extent possible.

(c) A “pretermitted child,” as used in this section, means a child of a testator who, during the lifetime of the testator, or after his death, is born or adopted after the execution of the will of the testator.

(d) For the purposes of this section, a child is provided for or a provision is made for a child if a disposition of property to or for the benefit of the pretermitted child, whether vested or contingent, is made:

      (1) in the testator’s will, including a devise or bequest to a trustee as authorized by Section 58(a) of this code; or

      (2) outside the testator’s will and is intended to take effect at the testator’s death.

(e) If a pretermitted child’s other parent is not the surviving spouse of the testator, the portion of the testator’s estate to which the pretermitted child is entitled under Subsection (a)(1)(A) or (a)(2) of this section may not reduce the portion of the testator’s estate passing to the testator’s surviving spouse by more than one-half.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1989, 71st Leg., ch. 1035, Sec. 5, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 895, Sec. 8, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 8, eff. Sept. 1, 1993. Subsec. (a) amended by Acts 2003, 78th Leg., ch. 1060, Sec. 10, eff. Sept. 1, 2003. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 68. Prior Death of Legatee.

(a) If a devisee who is a descendant of the testator or a descendant of a testator’s parent is deceased at the time of the execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator by Section 47 of this code or otherwise, the descendants of the devisee who survived the testator by 120 hours take the devised property in place of the devisee. The property shall be divided into as many shares as there are surviving descendants in the nearest degree of kinship to the devisee and deceased persons in the same degree whose descendants survived the testator. Each surviving descendant in the nearest degree receives one share, and the share of each deceased person in the same degree is divided among his descendants by representation. For purposes of this section, a person who would have been a devisee under a class gift if the person had survived the testator is treated as a devisee unless the person died before the date the will was executed.

(b) Except as provided by Subsection (a) of this section, if a devise or bequest, other than a residuary devise or bequest, fails for any reason, the devise or bequest becomes a part of the residuary estate.

(c) Except as provided by Subsection (a) of this section, if the residuary estate is devised to two or more persons and the share of one of the residuary devisees fails for any reason, the residuary devisee’s share passes to the other residuary devisees, in proportion to the residuary devisee’s interest in the residuary estate.

(d) Except as provided by Subsection (a) of this section, if all residuary devisees are dead at the time of the execution of the will, fail to survive the testator, or are treated as if they predeceased the testator, the residuary estate passes as if the testator had died intestate.

(e) This section applies unless the testator’s last will and testament provides otherwise. For example, a devise or bequest in the testator’s will such as “to my surviving children” or “to such of my children as shall survive me” prevents the application of Subsection (a) of this section.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1991, 72nd Leg., ch. 895, Sec. 9, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 9, eff. Sept. 1, 1993.

Sec. 69. Will Provisions Made Before Dissolution of Marriage.

(a) In this section, “relative” means an individual who is related to another individual by consanguinity or affinity, as determined under Sections 573.022 and 573.024, Government Code, respectively.

(b) If, after making a will, the testator’s marriage is dissolved, whether by divorce, annulment, or a declaration that the marriage is void, all provisions in the will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise.

(c) A person whose marriage to the decedent has been dissolved, whether by divorce, annulment, or a declaration that the marriage is void, is not a surviving spouse unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death and the subsequent marriage is not declared void under Section 47A of this code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 12, eff. Aug. 27, 1979; Acts 1995, 74th Leg., ch. 642, Sec. 2, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1302, Sec. 5, eff. Sept. 1, 1997. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 4.02, eff. September 1, 2007.

Sec. 69A. Changing Wills.

(a) A court may not prohibit a person from executing a new will or a codicil to an existing will.

(b) Notwithstanding Section 3(g) of this code, in this section, “court” means a constitutional county court, district court, or statutory county court, including a statutory probate court.

Added by Acts 1993, 73rd Leg., ch. 120, Sec. 1, eff. Sept. 1, 1993.

Sec. 70. Repealed by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 70A. Increase in Securities; Accessions.

(a) Unless the will clearly provides otherwise, a devise of securities that are owned by the testator on the date of execution of the will includes the following additional securities subsequently acquired by the testator as a result of the testator’s ownership of the devised securities:

      (1) securities of the same organization acquired because of action initiated by the organization or any successor, related, or acquiring organization, including stock splits, stock dividends, and new issues of stock acquired in a reorganization, redemption, or exchange, other than securities acquired through the exercise of purchase options or through a plan of reinvestment; and

      (2) securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization, including stock splits, stock dividends, and new issues of stock acquired in a reorganization, redemption, or exchange, other than securities acquired through the exercise of purchase options or through a plan of reinvestment.

(b) Unless the will clearly provides otherwise, a devise of securities does not include a cash distribution relating to the securities and accruing before death, whether or not the distribution is paid before death.

(c) In this section:

      (1) “Securities” has the meaning assigned by Section 4, The Securities Act (Article 581-4, Vernon’s Texas Civil Statutes), and its subsequent amendments.

      (2) “Stock” means securities.

Added by Acts 1993, 73rd Leg., ch. 846, Sec. 10, eff. Sept. 1, 1993.

Sec. 71. Deposit of Will with Court During Testator’s Lifetime.

(a) Deposit of Will. A will may be deposited by the person making it, or by another person for him, with the county clerk of the county of the testator’s residence. Before accepting any will for deposit, the clerk may require such proof as shall be satisfactory to him concerning the testator’s identity and residence. The clerk, on being paid a fee of Five Dollars therefor, shall receive and keep the will, and shall give a certificate of deposit for it. All wills so filed shall be numbered by the clerk in consecutive order, and all certificates of deposit shall bear like numbers respectively.

(b) How Will Shall Be Enclosed. Every will intended to be deposited with a county clerk shall be enclosed in a sealed wrapper, which shall have indorsed thereon “Will of,” followed by the name, address and signature of the testator. The wrapper must also be indorsed with the name and current address of each person who shall be notified of the deposit of the will after the death of the testator.

(c) Index To Be Kept of All Wills Deposited. Each county clerk shall keep an index of all wills so deposited with him.

(d) To Whom Will Shall Be Delivered. During the lifetime of the testator, a will so deposited shall be delivered only to the testator, or to another person authorized by him by a sworn written order. Upon delivery of the will to the testator or to a person so authorized by him, the certificate of deposit issued for the will shall be surrendered by the person to whom delivery of the will is made; provided, however, that in lieu of the surrender of such certificate, the clerk may, in his discretion, accept and file an affidavit by the testator to the effect that the certificate of deposit has been lost, stolen, or destroyed.

(e) Proceedings Upon Death of Testator. If there shall be submitted to the clerk an affidavit to the effect that the testator of any will deposited with the clerk has died, or if the clerk shall receive any other notice or proof of the death of such testator which shall suffice to convince him that the testator is deceased, the clerk shall notify by registered mail with return receipt requested the person or persons named on the indorsement of the wrapper of the will that the will is on deposit in his office, and, upon request, he shall deliver the will to such person or persons, taking a receipt therefor. If the notice by registered mail is returned undelivered, or if a clerk has accepted a will which does not specify on the wrapper the person or persons to whom it shall be delivered, the clerk shall open the wrapper and inspect the will. If an executor is named in the will, he shall be notified by registered mail, with return receipt requested, that the will is on deposit, and, upon request, the clerk shall deliver the will to the person so named as executor. If no executor is named in the will, or if the person so named is deceased, or fails to take the will within thirty days after the clerk’s notice to him is mailed, or if notice to the person so named is returned undelivered, the clerk shall give notice by registered mail, with return receipt requested, to the devisees and legatees named in the will that the will is on deposit, and, upon request, the clerk shall deliver the will to any or all of such devisees and legatees.

(f)  Depositing Has No Legal Significance. These provisions for the depositing of a will during the lifetime of a testator are solely for the purpose of providing a safe and convenient repository for such a will, and no will which has been so deposited shall be treated for purposes of probate any differently than any will which has not been so deposited. In particular, and without limiting the generality of the foregoing, a will which is not deposited shall be admitted to probate upon proof that it is the last will and testament of the testator, notwithstanding the fact that the same testator has on deposit with the court a prior will which has been deposited in accordance with the provisions of this Code.

(g) Depositing Does Not Constitute Notice. The fact that a will has been deposited as provided herein shall not constitute notice of any character, constructive or otherwise, to any person as to the existence of such will or as to the contents thereof.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 275, Sec. 1, eff. June 15, 2007.

Sec. 71A. No Right to Exoneration of Debts; Exception.

(a) Except as provided by Subsection (b) of this section, a specific devise passes to the devisee subject to each debt secured by the property that exists on the date of the testator’s death, and the devisee has no right to exoneration from the testator’s estate for payment of the debt.

(b) A specific devise does not pass to the devisee subject to a debt described by Subsection (a) of this section if the will in which the devise is made specifically states that the devise passes without being subject to the debt. A general provision in the will stating that debts are to be paid is not a specific statement for purposes of this subsection.

(c) Subsection (a) of this section does not affect the rights of creditors provided under this code or the rights of other persons or entities provided under Part 3, Chapter VIII, of this code. If a creditor elects to have a debt described by Subsection (a) of this section allowed and approved as a matured secured claim, the claim shall be paid in accordance with Section 306(c-1) of this code.

Added by Acts 2005, 79th Leg., Ch. 551, Sec. 3, eff. September 1, 2005.

Chapter V. Probate and Grant of Administration

PART 1. ESTATES OF DECEDENTS

Sec. 72. Proceedings Before Death; Administration in Absence of Direct Evidence of Death; Distribution; Limitation of Liability; Restoration of Estate; Validation of Proceedings.

(a) The probate of a will or administration of an estate of a living person shall be void; provided, however, that the court shall have jurisdiction to determine the fact, time and place of death, and where application is made for the grant of letters testamentary or of administration upon the estate of a person believed to be dead and there is no direct evidence that such person is dead but the death of such person shall be proved by circumstantial evidence to the satisfaction of the court, such letters shall be granted. Distribution of the estate to the persons entitled thereto shall not be made by the personal representative until after the expiration of three (3) years from the date such letters are granted. If in a subsequent action such person shall be proved by direct evidence to have been living at any time subsequent to the date of grant of such letters, neither the personal representative nor anyone who shall deliver said estate or any part thereof to another under orders of the court shall be liable therefor; and provided further, that such person shall be entitled to restoration of said estate or the residue thereof with the rents and profits therefrom, except real or personal property sold by the personal representative or any distributee, his successors or assigns, to bona fide purchasers for value, in which case the right of such person to the restoration shall be limited to the proceeds of such sale or the residue thereof with the increase thereof. In no event shall the bonds of such personal representative be void provided, however, that the surety shall have no liability for any acts of the personal representative which were done in compliance with or approved by an order of the court. Probate proceedings upon estates of persons believed to be dead brought prior to the effective date of this Act and all such probate proceedings then pending, except such probate proceedings contested in any litigation pending on the effective date of this Act, are hereby validated insofar as the court’s finding of death of such person is concerned.

(b) In any case in which the fact of death must be proved by circumstantial evidence, the court, at the request of any interested person, may direct that citation be issued to the person supposed to be dead, and served upon him by publication and by posting, and by such additional means as the court may by its order direct. After letters testamentary or of administration have been issued, the court may also direct the personal representative to make a search for the person supposed to be dead by notifying law enforcement agencies and public welfare agencies in appropriate locations that such person has disappeared, and may further direct that the applicant engage the services of an investigative agency to make a search for such person. The expenses of search and notices shall be taxed as costs and shall be paid out of the property of the estate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1959, 56th Leg., p. 950, ch. 442, Sec. 1, eff. May 30, 1959; Acts 1971, 62nd Leg., p. 975, ch. 173, Sec. 7, eff. Jan. 1, 1972.

Sec. 73. Period for Probate.

(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present the same for probate within the four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.

(b) If any person shall purchase real or personal property from the heirs of a decedent more than four years from the date of the death of the decedent, for value, in good faith, and without knowledge of the existence of a will, such purchaser shall be held to have good title to the interest which such heir or heirs would have had in the absence of a will, as against the claims of any devisees or legatees under any will which may thereafter be offered for probate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 976, ch. 173, Sec. 8, eff. Jan. 1, 1972.

Sec. 74. Time to File Application for Letters Testamentary or Administration. All applications for the grant of letters testamentary or of administration upon an estate must be filed within four years after the death of the testator or intestate; provided, that this section shall not apply in any case where administration is necessary in order to receive or recover funds or other property due to the estate of the decedent.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 976, ch. 173, Sec. 8, eff. Jan. 1, 1972.

Sec. 75. Duty and Liability of Custodian of Will. Upon receiving notice of the death of a testator, the person having custody of the testator’s will shall deliver it to the clerk of the court which has jurisdiction of the estate. On sworn written complaint that any person has the last will of any testator, or any papers belonging to the estate of a testator or intestate, the county judge shall cause said person to be cited by personal service to appear before him and show cause why he should not deliver such will to the court for probate, or why he should not deliver such papers to the executor or administrator. Upon the return of such citation served, unless delivery is made or good cause shown, if satisfied that such person had such will or papers at the time of filing the complaint, such judge may cause him to be arrested and imprisoned until he shall so deliver them. Any person refusing to deliver such will or papers shall also be liable to any person aggrieved for all damages sustained as a result of such refusal, which damages may be recovered in any court of competent jurisdiction.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 76. Persons Who May Make Application. An executor named in a will or any interested person may make application to the court of a proper county:

(a) For an order admitting a will to probate, whether the same is written or unwritten, in his possession or not, is lost, is destroyed, or is out of the State.

(b) For the appointment of the executor named in the will.

(c) For the appointment of an administrator, if no executor is designated in the will, or if the person so named is disqualified, or refuses to serve, or is dead, or resigns, or if there is no will. An application for probate may be combined with an application for the appointment of an executor or administrator; and a person interested in either the probate of the will or the appointment of a personal representative may apply for both.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 77. Order of Persons Qualified to Serve. Letters testamentary or of administration shall be granted to persons who are qualified to act, in the following order:

(a) To the person named as executor in the will of the deceased.

(b) To the surviving husband or wife.

(c) To the principal devisee or legatee of the testator.

(d) To any devisee or legatee of the testator.

(e) To the next of kin of the deceased, the nearest in order of descent first, and so on, and next of kin includes a person and his descendants who legally adopted the deceased or who have been legally adopted by the deceased.

(f)  To a creditor of the deceased.

(g) To any person of good character residing in the county who applies therefor.

(h) To any other person not disqualified under the following Section. When applicants are equally entitled, letters shall be granted to the applicant who, in the judgment of the court, is most likely to administer the estate advantageously, or they may be granted to any two or more of such applicants.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1763, ch. 713, Sec. 34, eff. Aug. 27, 1979.

Sec. 78. Persons Disqualified to Serve as Executor or Administrator. No person is qualified to serve as an executor or administrator who is:

(a) An incapacitated person;

(b) A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law;

(c) A non-resident (natural person or corporation) of this State who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused such appointment to be filed with the court;

(d) A corporation not authorized to act as a fiduciary in this State; or

(e) A person whom the court finds unsuitable.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 2a, eff. Aug. 22, 1957; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 7, eff. June 12, 1969; Acts 1995, 74th Leg., ch. 1039, Sec. 7, eff. Sept. 1, 1995.

Sec. 79. Waiver of Right to Serve. The surviving husband or wife, or, if there be none, the heirs or any one of the heirs of the deceased to the exclusion of any person not equally entitled, may, in open court, or by power of attorney duly authenticated and filed with the county clerk of the county where the application is filed, renounce his right to letters testamentary or of administration in favor of another qualified person, and thereupon the court may grant letters to such person.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 80. Prevention of Administration.

(a) Method of Prevention. When application is made for letters of administration upon an estate by a creditor, and other interested persons do not desire an administration thereupon, they can defeat such application:

      (1) By the payment of the claim of such creditor; or

      (2) By proof to the satisfaction of the court that such claim is fictitious, fraudulent, illegal, or barred by limitation; or

      (3) By executing a bond payable to, and to be approved by, the judge in double the amount of such creditor’s debt, conditioned that the obligors will pay the debt of such applicant upon the establishment thereof by suit in any court in the county having jurisdiction of the amount.

(b) Filing of Bond. The bond provided for, when given and approved, shall be filed with the county clerk, and any creditor for whose protection it was executed may sue thereon in his own name for the recovery of his debt.

(c) Bond Secured by Lien. A lien shall exist on all of the estate in the hands of the distributees of such estate, and those claiming under them with notice of such lien, to secure the ultimate payment of the bond provided for herein.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 81. Contents of Application for Letters Testamentary.

(a) For Probate of a Written Will. A written will shall, if within the control of the applicant, be filed with the application for its probate, and shall remain in the custody of the county clerk unless removed therefrom by order of a proper court. An application for probate of a written will shall state:

      (1) The name and domicile of each applicant.

      (2) The name, age if known, and domicile of the decedent, and the fact, time, and place of death.

      (3) Facts showing that the court has venue.

      (4) That the decedent owned real or personal property, or both, describing the same generally, and stating its probable value.

      (5) The date of the will, the name and residence of the executor named therein, if any, and if none be named, then the name and residence of the person to whom it is desired that letters be issued, and also the names and residences of the subscribing witnesses, if any.

      (6) Whether a child or children born or adopted after the making of such will survived the decedent, and the name of each such survivor, if any.

      (7) That such executor or applicant, or other person to whom it is desired that letters be issued, is not disqualified by law from accepting letters.

      (8) Whether a marriage of the decedent was ever dissolved after the will was made and if so, when and from whom.

      (9) Whether the state, a governmental agency of the state, or a charitable organization is named by the will as a devisee.

The foregoing matters shall be stated and averred in the application to the extent that they are known to the applicant, or can with reasonable diligence be ascertained by him, and if any of such matters is not stated or averred in the application, the application shall set forth the reason why such matter is not so stated and averred.

(b) For Probate of Written Will Not Produced. When a written will cannot be produced in court, in addition to the requirements of Subsection (a) hereof, the application shall state:

      (1) The reason why such will cannot be produced.

      (2) The contents of such will, as far as known.

      (3) The date of such will and the executor appointed therein, if any, as far as known.

      (4) The name, age, marital status, and address, if known, and the relationship to the decedent, if any, of each devisee, and of each person who would inherit as an heir in the absence of a valid will, and, in cases of partial intestacy, of each heir.

(c) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 5.05, eff. September 1, 2007.

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; Acts 1987, 70th Leg., ch. 463, Sec. 1, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1035, Sec. 6, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 1302, Sec. 6, eff. Sept. 1, 1997. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 5.05, eff. September 1, 2007. Amended by Acts 2009, 81st Leg., Ch. 633, §1, eff. Sept. 1, 2009. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 82. Contents of Application for Letters of Administration. An application for letters of administration when no will is alleged to exist shall state:

(a) The name and domicile of the applicant, relationship to the decedent, if any, and that the applicant is not disqualified by law to act as administrator;

(b) The name and intestacy of the decedent, and the fact, time and place of death;

(c) Facts necessary to show venue in the court to which the application is made;

(d) Whether the decedent owned real or personal property, with a statement of its probable value;

(e) The name, age, marital status and address, if known, and the relationship, if any, of each heir to the decedent;

(f)  If known by the applicant at the time of the filing of the application, whether children were born to or adopted by the decedent, with the name and the date and place of birth of each;

(g) If known by the applicant at the time of the filing of the application, whether the decedent was ever divorced, and if so, when and from whom; and

(h) That a necessity exists for administration of the estate, alleging the facts which show such necessity.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1746, ch. 713, Sec. 13, eff. Aug. 27, 1979; Acts 1987, 70th Leg., ch. 463, Sec. 2, eff. Sept. 1, 1987; Acts 1997, 75th Leg., ch. 1302, Sec. 7, eff. Sept. 1, 1997. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 5.01, eff. September 1, 2007.

Sec. 83. Procedure Pertaining to a Second Application.

(a) Where Original Application Has Not Been Heard. If, after an application for the probate of a will or for the appointment of a general personal representative has been filed, and before such application has been heard, an application for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall hear both applications together and determine what instrument, if any, should be admitted to probate, or whether the decedent died intestate. The court may not sever or bifurcate the proceeding on the applications.

(b) Where First Will Has Been Admitted to Probate. If, after a will has been admitted to probate, an application for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall determine whether the former probate should be set aside, and whether such other will should be admitted to probate, or whether the decedent died intestate.

(c) Where Letters of Administration Have Been Granted. Whenever letters of administration shall have been granted upon an estate, and it shall afterwards be discovered that the deceased left a lawful will, such will may be proved in the manner provided for the proof of wills; and, if an executor is named in such will, and he is not disqualified, he shall be allowed to qualify and accept as such executor, and the letters previously granted shall be revoked; but, if no such executor be named in the will, or if the executor named be disqualified, be dead, or shall renounce the executorship, or shall fail or be unable to accept and qualify within twenty days after the date of the probate of the will, or shall fail for a period of thirty days after the discovery of such will to present it for probate, then administration with the will annexed of the estate of such testator shall be granted as in other cases. All acts done by the first administrator, prior to the qualification of the executor or of the administrator with the will annexed, shall be as valid as if no such will had been discovered.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 7.01, eff. September 1, 2007. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 84. Proof of Written Will Produced in Court.

(a) Self-Proved Will.

      (1) If a will is self-proved as provided in Section 59 of this Code or, if executed in another state or a foreign country, is self-proved in accordance with the laws of the state or foreign country of the testator’s domicile at the time of the execution, no further proof of its execution with the formalities and solemnities and under the circumstances required to make it a valid will shall be necessary.

      (2) For purposes of Subdivision (1) of this subsection, a will is considered self-proved if the will, or an affidavit of the testator and attesting witnesses attached or annexed to the will, provides that:

            (A)      the testator declared that the testator signed the instrument as the testator’s will, the testator signed it willingly or willingly directed another to sign for the testator, the testator executed the will as the testator’s free and voluntary act for the purposes expressed in the instrument, the testator is of sound mind and under no constraint or undue influence, and the testator is eighteen years of age or over or, if under that age, was or had been lawfully married, or was then a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service; and

            (B)      the witnesses declared that the testator signed the instrument as the testator’s will, the testator signed it willingly or willingly directed another to sign for the testator, each of the witnesses, in the presence and hearing of the testator, signed the will as witness to the testator’s signing, and to the best of their knowledge the testator was of sound mind and under no constraint or undue influence, and the testator was eighteen years of age or over or, if under that age, was or had been lawfully married, or was then a member of the armed forces of the United States, an auxiliary of the armed forces of the United States, or the United States Maritime Service.

(b) Attested Written Will. If not self-proved as provided in this Code, an attested written will produced in court may be proved:

      (1) By the sworn testimony or affidavit of one or more of the subscribing witnesses thereto, taken in open court.

      (2) If all the witnesses are non-residents of the county, or those who are residents are unable to attend court, by the sworn testimony of any one or more of them by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if no opposition in writing to such will is filed on or before the date set for hearing thereon, then by the sworn testimony or affidavit of two witnesses taken in open court, or by deposition in the manner provided herein, to the signature or the handwriting evidenced thereby of one or more of the attesting witnesses, or of the testator, if he signed the will; or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.

      (3) If none of the witnesses is living, or if all of such witnesses are members of the armed forces of the United States of America or of any auxiliary thereof, or of the armed forces reserve of the United States of America or of any auxiliary thereof, or of the Maritime Service, and are beyond the jurisdiction of the court, by two witnesses to the handwriting of one or both of the subscribing witnesses thereto, or of the testator, if signed by him, and such proof may be either by sworn testimony or affidavit taken in open court, or by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions; or, if it be shown under oath to the satisfaction of the court that, diligent search having been made, only one witness can be found who can make the required proof, then by the sworn testimony or affidavit of such one taken in open court, or by deposition in the manner provided herein, to such signatures or handwriting.

(c) Holographic Will. If not self-proved as provided in this Code, a will wholly in the handwriting of the testator may be proved by two witnesses to his handwriting, which evidence may be by sworn testimony or affidavit taken in open court, or, if such witnesses are non-residents of the county or are residents who are unable to attend court, by deposition, either written or oral, taken in the same manner and under the same rules as depositions taken in other civil actions.

(d) Depositions if No Contest Filed. If no contest has been filed, depositions for the purpose of establishing a will may be taken in the same manner as provided in this Code for the taking of depositions where there is no opposing party or attorney of record upon whom notice and copies of interrogatories may be served; and, in such event, this Subsection, rather than the preceding portions of this Section which provide for the taking of depositions under the same rules as depositions in other civil actions, shall be applicable.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 2003, 78th Leg., ch. 1060, Sec. 11, eff. Sept. 1, 2003. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 85. Proof of Written Will Not Produced in Court. A written will which cannot be produced in court shall be proved in the same manner as provided in the preceding Section for an attested written will or an holographic will, as the case may be, and the same amount and character of testimony shall be required to prove such will as is required to prove a written will produced in court; but, in addition thereto, the cause of its non-production must be proved, and such cause must be sufficient to satisfy the court that it cannot by any reasonable diligence be produced, and the contents of such will must be substantially proved by the testimony of a credible witness who has read the will, has heard the will read, or can identify a copy of the will.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 6.01, eff. September 1, 2007.

Sec. 86. Repealed by Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 6.01, eff. September 1, 2007.

Sec. 87. Testimony to Be Committed to Writing. All testimony taken in open court upon the hearing of an application to probate a will shall be committed to writing at the time it is taken, and subscribed, and sworn to in open court by the witness or witnesses, and filed by the clerk; provided, however, that in any contested case, the court may, upon agreement of the parties, and in the event of no agreement on its own motion, dismiss this requirement.

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.

Sec. 88. Proof Required for Probate and Issuance of Letters Testamentary or of Administration.

(a) General Proof. Whenever an applicant seeks to probate a will or to obtain issuance of letters testamentary or of administration, he must first prove to the satisfaction of the court:

      (1) That the person is dead, and that four years have not elapsed since his decease and prior to the application; and

      (2) That the court has jurisdiction and venue over the estate; and

      (3) That citation has been served and returned in the manner and for the length of time required by this Code; and

      (4) That the person for whom letters testamentary or of administration are sought is entitled thereto by law and is not disqualified.

(b) Additional Proof for Probate of Will. To obtain probate of a will, the applicant must also prove to the satisfaction of the court:

      (1) If the will is not self-proved as provided by this Code, that the testator, at the time of executing the will, was at least eighteen years of age, or was or had been lawfully married, or was a member of the armed forces of the United States or of the auxiliaries thereof, or of the Maritime Service of the United States, and was of sound mind; and

      (2) If the will is not self-proved as provided by this Code, that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; and

      (3) That such will was not revoked by the testator.

(c) Additional Proof for Issuance of Letters Testamentary. If letters testamentary are to be granted, it must appear to the court that proof required for the probate of the will has been made, and, in addition, that the person to whom the letters are to be granted is named as executor in the will.

(d) Additional Proof for Issuance of Letters of Administration. If letters of administration are to be granted, the applicant must also prove to the satisfaction of the court that there exists a necessity for an administration upon such estate.

(e) Proof Required Where Prior Letters Have Been Granted. If letters testamentary or of administration have previously been granted upon the estate, the applicant need show only that the person for whom letters are sought is entitled thereto by law and is not disqualified.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 8, eff. June 12, 1969.

Sec. 89. Action of Court on Probated Will. Upon the completion of hearing of an application for the probate of a will, if the Court be satisfied that such will should be admitted to probate, an order to that effect shall be entered. Certified copies of such will and the order , or of the record thereof, and the record of testimony, may be recorded in other counties, and may be used in evidence, as the original might be, on the trial of the same matter in any other court, when taken there by appeal or otherwise.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1961, 57th Leg., p. 1072, ch. 480, Sec. 1, eff. Aug. 28, 1961; Acts 1983, 68th Leg., p. 1155, ch. 260, Sec. 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 846, Sec. 11, eff. Sept. 1, 1993.

Sec. 89A. Contents of Application for Probate of Will as Muniment of Title.

(a) A written will shall, if within the control of the applicant, be filed with the application for probate as a muniment of title, and shall remain in the custody of the county clerk unless removed from the custody of the clerk by order of a proper court. An application for probate of a will as a muniment of title shall state:

      (1) The name and domicile of each applicant.

      (2) The name, age if known, and domicile of the decedent, and the fact, time, and place of death.

      (3) Facts showing that the court has venue.

      (4) That the decedent owned real or personal property, or both, describing the property generally, and stating its probable value.

      (5) The date of the will, the name and residence of the executor named in the will, if any, and the names and residences of the subscribing witnesses, if any.

      (6) Whether a child or children born or adopted after the making of such will survived the decedent, and the name of each such survivor, if any.

      (7) That there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate.

      (8) Whether a marriage of the decedent was ever dissolved after the will was made, and if so, when and from whom.

      (9) Whether the state, a governmental agency of the state, or a charitable organization is named by the will as a devisee.

The foregoing matters shall be stated and averred in the application to the extent that they are known to the applicant, or can with reasonable diligence be ascertained by the applicant, and if any of such matters is not stated or averred in the application, the application shall set forth the reason why such matter is not so stated and averred.

(b) When a written will cannot be produced in court, in addition to the requirements of Subsection (a) of this section, the application shall state:

      (1) The reason why such will cannot be produced.

      (2) The contents of such will, to the extent known.

      (3) The date of such will and the executor appointed in the will, if any, to the extent known.

      (4) The name, age, marital status, and address, if known, and the relationship to the decedent, if any, of each devisee, and of each person who would inherit as an heir in the absence of a valid will, and, in cases of partial intestacy, of each heir.

(c) Repealed by Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 5.05, eff. September 1, 2007.

Added by Acts 1997, 75th Leg., ch. 540, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 2001, 77th Leg., ch. 10, Sec. 1, eff. Sept. 1, 2001. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 5.05, eff. September 1, 2007. Amended by Acts 2009, 81st Leg., Ch. 634, §1, eff. Sept. 19, 2009. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 89B. Proof Required for Probate of a Will as a Muniment of Title.

(a) General Proof. Whenever an applicant seeks to probate a will as a muniment of title, the applicant must first prove to the satisfaction of the court:

      (1) That the person is dead, and that four years have not elapsed since the person’s death and prior to the application; and

      (2) That the court has jurisdiction and venue over the estate; and

      (3) That citation has been served and returned in the manner and for the length of time required by this Code; and

      (4) That there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate.

(b) To obtain probate of a will as a muniment of title, the applicant must also prove to the satisfaction of the court:

      (1) If the will is not self-proved as provided by this Code, that the testator, at the time of executing the will, was at least 18 years of age, or was or had been lawfully married, or was a member of the armed forces of the United States or of the auxiliaries of the armed forces of the United States, or of the Maritime Service of the United States, and was of sound mind; and

      (2) If the will is not self-proved as provided by this Code, that the testator executed the will with the formalities and solemnities and under the circumstances required by law to make it a valid will; and

      (3) That such will was not revoked by the testator.

Added by Acts 1997, 75th Leg., ch. 540, Sec. 1 eff. Sept. 1, 1997.

Sec. 89C. Probate of Wills as Muniments of Title.

(a) In each instance where the court is satisfied that a will should be admitted to probate, and where the court is further satisfied that there are no unpaid debts owing by the estate of the testator, excluding debts secured by liens on real estate, or for other reason finds that there is no necessity for administration upon such estate, the court may admit such will to probate as a muniment of title.

(b) If a person who is entitled to property under the provisions of the will cannot be ascertained solely by reference to the will or if a question of construction of the will exists, on proper application and notice as provided by Chapter 37, Civil Practice and Remedies Code, the court may hear evidence and include in the order probating the will as a muniment of title a declaratory judgment construing the will or determining those persons who are entitled to receive property under the will and the persons’ shares or interests in the estate. The judgment is conclusive in any suit between any person omitted from the judgment and a bona fide purchaser for value who has purchased real or personal property after entry of the judgment without actual notice of the claim of the omitted person to an interest in the estate. Any person who has delivered property of the decedent to a person declared to be entitled to the property under the judgment or has engaged in any other transaction with the person in good faith after entry of the judgment is not liable to any person for actions taken in reliance on the judgment.

(c) The order admitting a will to probate as a muniment of title shall constitute sufficient legal authority to all persons owing any money to the estate of the decedent, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the estate, and to persons purchasing from or otherwise dealing with the estate, for payment or transfer, without liability, to the persons described in such will as entitled to receive the particular asset without administration. The person or persons entitled to property under the provisions of such wills shall be entitled to deal with and treat the properties to which they are so entitled in the same manner as if the record of title thereof were vested in their names.

(d) Unless waived by the court, before the 181st day, or such later day as may be extended by the court, after the date a will is admitted to probate as a muniment of title, the applicant for probate of the will shall file with the clerk of the court a sworn affidavit stating specifically the terms of the will that have been fulfilled and the terms of the will that have been unfulfilled. Failure of the applicant for probate of the will to file such affidavit shall not otherwise affect title to property passing under the terms of the will.

Added by Acts 1993, 73rd Leg., ch. 846, Sec. 12, eff. Sept. 1, 1993. Renumbered from V.A.T.S. Probate Code, Sec. 89A by Acts 1997, 75th Leg., ch. 540, Sec. 1, eff. Sept. 1, 1997.

Sec. 90. Custody of Probated Wills. All original wills, together with the probate thereof, shall be deposited in the office of the county clerk of the county wherein the same shall have been probated, and shall there remain, except during such time as they may be removed for inspection to another place upon order by the court where probated. If the court shall order an original will to be removed to another place for inspection, the person removing such original will shall give a receipt therefor, and the clerk of the court shall make and retain a copy of such original will.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 91. When Will Not in Custody of Court. If for any reason a written will is not in the custody of the court, the court shall find the contents thereof by written order, and certified copies of same as so established by the court may be recorded in other counties, and may be used in evidence, as in the case of certified copies of written wills in the custody of the court.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 5.02, eff. September 1, 2007.

Sec. 92. Period for Probate Does Not Affect Settlement. Where letters testamentary or of administration shall have once been granted, any person interested in the administration of the estate may proceed, after any lapse of time, to compel settlement of the estate when it does not appear from the record that the administration thereof has been closed.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 93. Period for Contesting Probate. After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward. Provided, however, that incapacitated persons shall have two years after the removal of their disabilities within which to institute such contest.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 2001, 77th Leg., ch. 292, Sec. 3, eff. May 23, 2001.

Sec. 94. No Will Effectual until Probated. Except as hereinafter provided with respect to foreign wills, no will shall be effectual for the purpose of proving title to, or the right to the possession of, any real or personal property disposed of by the will, until such will has been admitted to probate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

PART 2. PROCEDURE PERTAINING TO FOREIGN WILLS

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 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 judge’s probate docket. 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 judge’s probate docket, 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; Acts 1999, 76th Leg., ch. 755, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2009, 81st Leg., Ch. 602, §6, eff. June 19, 2009.

Sec. 96. Filing and Recording Foreign Will in Deed Records. When any will or testamentary instrument conveying or in any manner disposing of land in this State has been duly probated according to the laws of any of the United States, or territories thereof, or the District of Columbia, or of any country out of the limits of the United States, a copy thereof and of its probate which bears the attestation, seal and certificate required by the preceding Section, may be filed and recorded in the deed records in any county of this State in which said real estate is situated, in the same manner as deeds and conveyances are required to be recorded under the laws of this State, and without further proof or authentication; provided that the validity of such a will or testamentary instrument filed under this Section may be contested in the manner and to the extent hereinafter provided.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 97. Proof Required for Recording in Deed Records. A copy of such foreign will or testamentary instrument, and of its probate attested as provided above, together with the certificate that said attestation is in due form, shall be prima facie evidence that said will or testamentary instrument has been duly admitted to probate, according to the laws of the state, territory, district, or country wherein it has allegedly been admitted to probate, and shall be sufficient to authorize the same to be recorded in the deed records in the proper county or counties in this State.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1925, ch. 641, Sec. 9, eff. June 12, 1969.

Sec. 98. Effect of Recording Copy of Will in Deed Records. Every such foreign will, or testamentary instrument, and the record of its probate, which shall be attested and proved, as hereinabove provided, and delivered to the county clerk of the proper county in this State to be recorded in the deed records, shall take effect and be valid and effectual as a deed of conveyance of all property in this State covered by said foreign will or testamentary instrument; and the record thereof shall have the same force and effect as the record of deeds or other conveyances of land from the time when such instrument is delivered to the clerk to be recorded, and from that time only.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1925, ch. 641, Sec. 9, eff. June 12, 1969.

Sec. 99. Recording in Deed Records Serves as Notice of Title. The record of any such foreign will, or testamentary instrument, and of its probate, duly attested and proved and filed for recording in the deed records of the proper county, shall be notice to all persons of the existence of such will or testamentary instrument, and of the title or titles conferred thereby.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1925, ch. 641, Sec. 9, eff. June 12, 1969.

Sec. 100. Contest of Foreign Wills.

(a) Will Admitted in Domiciliary Jurisdiction. A foreign will that has been admitted to probate or established in the jurisdiction in which the testator was domiciled at the time of his death, and either admitted to probate in this State or filed in the deed records of any county of this State, may be contested by any interested person but only upon the following grounds:

      (1) That the foreign proceedings were not authenticated in the manner required for ancillary probate or recording in the deed records.

      (2) That the will has been finally rejected for probate in this State in another proceeding.

      (3) That the probate of the will has been set aside in the jurisdiction in which the testator died domiciled.

(b) Will Probated in Non-Domiciliary Jurisdiction. A foreign will that has been admitted to probate or established in any jurisdiction other than that of the testator’s domicile at the time of his death may be contested on any grounds that are the basis for the contest of a domestic will. If a will has been probated in this State in accordance with the procedure applicable for the probate of a will that has been admitted in the state of domicile, without the service of citation required for a will admitted in another jurisdiction that is not the domicile of the testator, and it is proved that the foreign jurisdiction in which the will was probated was not in fact the domicile of the testator, the probate in this State shall be set aside. If otherwise entitled, the will may be reprobated in accordance with the procedure prescribed for the probate of a will admitted in a non-domiciliary jurisdiction, or it may be admitted to original probate in this State in the same or a subsequent proceeding.

(c) Time and Method. A foreign will that has been admitted to ancillary probate in this State or filed in the deed records in this State may be contested by the same procedures, and within the same time limits, as wills admitted to probate in this State in original proceedings.

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.

Sec. 101. Notice of Contest of Foreign Will. Within the time permitted for the contest of a foreign will in this State, verified notice may be filed and recorded in the judge’s probate docket of the court in this State in which the will was probated, or the deed records of any county in this State in which such will was recorded, that proceedings have been instituted to contest the will in the foreign jurisdiction where it was probated or established. Upon such filing and recording, the force and effect of the probate or recording of the will shall cease until verified proof is filed and recorded that the foreign proceedings have been terminated in favor of the will, or that such proceedings were never actually instituted.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1925, ch. 641, Sec. 9, eff. June 12, 1969. Amended by Acts 2009, 81st Leg., Ch. 602, §7, eff. June 19, 2009.

Sec. 102. Effect of Rejection of Will in Domiciliary Proceedings. Final rejection of a will or other testamentary instrument from probate or establishment in the jurisdiction in which the testator was domiciled shall be conclusive in this State, except where the will or other testamentary instrument has been rejected solely for a cause which is not ground for rejection of a will of a testator who died domiciled in this State, in which case the will or testamentary instrument may nevertheless be admitted to probate or continue to be effective in this State.

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.

Sec. 103. Original Probate of Foreign Will in this State. Original probate of the will of a testator who died domiciled outside this State which, upon probate, may operate upon any property in this State, and which is valid under the laws of this State, may be granted in the same manner as the probate of other wills is granted under this Code, if the will does not stand rejected from probate or establishment in the jurisdiction where the testator died domiciled, or if it stands rejected from probate or establishment in the jurisdiction where the testator died domiciled solely for a cause which is not ground for rejection of a will of a testator who died domiciled in this State. The court may delay passing on the application for probate of a foreign will pending the result of probate or establishment, or of a contest thereof, at the domicile of the testator.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 104. Proof of Foreign Will in Original Probate Proceeding. If a testator dies domiciled outside this State, a copy of his will, authenticated in the manner required by this Code, shall be sufficient proof of the contents of the will to admit it to probate in an original proceeding in this State if no objection is made thereto. This Section does not authorize the probate of any will which would not otherwise be admissible to probate, or, in case objection is made to the will, relieve the proponent from offering proof of the contents and legal sufficiency of the will as otherwise required, except that the original will need not be produced unless the court so orders.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1925, ch. 641, Sec. 9, eff. June 12, 1969.

Sec. 105. Executor of Will Probated in Another Jurisdiction. When a foreign will is admitted to ancillary probate in accordance with Section 95 of this Code, the executor named in such will shall be entitled to receive, upon application, letters testamentary upon proof that he has qualified as such in the jurisdiction in which the will was admitted to probate, and that he is not disqualified to serve as executor in this State. After such proof is made, the court shall enter an order directing that ancillary letters testamentary be issued to him. If letters of administration have previously been granted by such court in this State to any other person, such letters shall be revoked upon the application of the executor after personal service of citation upon the person to whom such letters were granted.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1925, ch. 641, Sec. 9, eff. June 12, 1969.

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”, 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 grants authority to serve in like fiduciary capacity to a corporate fiduciary whose home state is this state.

(b) Before qualifying or serving in the State of Texas in any fiduciary capacity, as aforesaid, such a foreign corporate fiduciary 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 is acting in any fiduciary capacity, including the acts or defaults of such foreign corporate fiduciary 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 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.

(c) Any foreign corporate fiduciary 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.

(d) The provisions hereof are in addition to, and not a limitation on, the provisions of Subtitle F or G, Title 3, Finance Code.

(e) Any foreign corporate fiduciary 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. Amended by Acts 1995, 74th Leg., ch. 914, Sec. 10, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 769, Sec. 5, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 344, Sec. 6.002, eff; Sept. 1, 1999; Acts 2001, 77th Leg., ch; 1420, Sec. 6.029, eff. Sept. 1, 2001.

Sec. 106. When Foreign Executor to Give Bond. A foreign executor shall not be required to give bond if the will appointing him so provides. If the will does not exempt him from giving bond, the provisions of this Code with respect to the bonds of domestic representatives shall be applicable.

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.

Sec. 107. Power of Sale of Foreign Executor or Trustee. When by any foreign will recorded in the deed records of any county in this state in the manner provided herein, power is given an executor or trustee to sell any real or personal property situated in this state, no order of a court of this state shall be necessary to authorize such executor or trustee to make such sale and execute proper conveyance, and whenever any particular directions are given by a testator in any such will respecting the sale of any such property situated in this state, belonging to his estate, the same shall be followed unless such directions have been annulled or suspended by order of a court of competent jurisdiction.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 1925, ch. 641, Sec. 9, eff. June 12, 1969.

Sec. 107A. Suit for the Recovery of Debts by a Foreign Executor or Administrator.

(a) On giving notice by registered or certified mail to all creditors of the decedent in this state who have filed a claim against the estate of the decedent for a debt due to the creditor, a foreign executor or administrator of a person who was a nonresident at the time of death may prosecute a suit in this state for the recovery of debts due to the decedent.

(b) The plaintiff’s letters testamentary or letters of administration granted by a competent tribunal, properly authenticated, shall be filed with the suit.

(c) By filing suit in this state for the recovery of a debt due to the decedent, a foreign executor or administrator submits personally to the jurisdiction of the courts of this state in a proceeding relating to the recovery of a debt due by his decedent to a resident of this state. Jurisdiction under this subsection is limited to the money or value of personal property recovered in this state by the foreign executor or administrator.

(d) Suit may not be maintained in this state by a foreign executor or administrator if there is an executor or administrator of the decedent qualified by a court of this state or if there is pending in this state an application for appointment as an executor or administrator.

Added by Acts 1977, 65th Leg., p. 1190, ch. 457, Sec. 1, eff. Aug. 29, 1977.

PART 3. EMERGENCY INTERVENTION PROCEEDINGS; FUNERAL AND BURIAL EXPENSES

Sec. 108. Time to File Emergency Application. An applicant may file an application requesting emergency intervention by a court exercising probate jurisdiction to provide for the payment of funeral and burial expenses or the protection and storage of personal property owned by the decedent that was located in rented accommodations on the date of the decedent’s death with the clerk of the court in the county of domicile of the decedent or the county in which the rental accommodations that contain the decedent’s personal property are located. The application must be filed not earlier than the third day after the date of the decedent’s death and not later than the 90th day after the date of the decedent’s death.

Added by Acts 1993, 73rd Leg., ch. 712, Sec. 7, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 642, Sec. 6, eff. Sept. 1, 1995. Renumbered from V.A.T.S. Probate Code, Sec. 520 and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997.

Sec. 109. Eligible Applicants for Emergency Intervention. A person qualified to serve as an administrator under Section 77 of this code may file an emergency intervention application.

Added by Acts 1993, 73rd Leg., ch. 712, Sec. 7, eff. Sept. 1, 1993. Renumbered from V.A.T.S., Probate Code Sec. 521 and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997.

Sec. 110. Requirements for Emergency Intervention. An applicant may file an emergency application with the court under Section 108 of this code only if an application has not been filed and is not pending under Section 81, 82, 137, or 145 of this code and the applicant:

      (1) needs to obtain funds for the funeral and burial of the decedent; or

      (2) needs to gain access to rental accommodations in which the decedent’s personal property is located and the applicant has been denied access to those accommodations.

Added by Acts 1995, 74th Leg., ch. 642, Sec. 7, eff. Sept. 1, 1995. Renumbered from V.A.T.S., Probate Code Sec. 521A and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997.

Sec. 111. Contents of Emergency Intervention Application for Funeral and Burial Expenses.

(a) An application for emergency intervention to obtain funds needed for a decedent’s funeral and burial expenses must be sworn and must contain:

      (1) the name, address, and interest of the applicant;

      (2) the facts showing an immediate necessity for the issuance of an emergency intervention order under this section by the court;

      (3) the date of the decedent’s death, place of death, decedent’s residential address, and the name and address of the funeral home holding the decedent’s remains;

      (4) any known or ascertainable heirs and devisees of the decedent and the reason:

            (a) the heirs and devisees cannot be contacted; or

            (b) the heirs and devisees have refused to assist in the decedent’s burial;

      (5) a description of funeral and burial procedures necessary and a statement from the funeral home that contains a detailed and itemized description of the cost of the funeral and burial procedures; and

      (6) the name and address of an individual, entity, or financial institution, including an employer, that is in possession of any funds of or due to the decedent, and related account numbers and balances, if known by the applicant.

(b) The application shall also state whether there are any written instructions from the decedent relating to the type and manner of funeral or burial the decedent would like to have. The applicant shall attach the instructions, if available, to the application and shall fully comply with the instructions. If written instructions do not exist, the applicant may not permit the decedent’s remains to be cremated unless the applicant obtains the court’s permission to cremate the decedent’s remains.

Added by Acts 1993, 73rd Leg., ch. 712, Sec. 7, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 642, Sec. 8, eff. Sept. 1, 1995. Renumbered from V.A.T.S., Probate Code Sec. 522 and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 8.01, eff. June 15, 2007.

Sec. 112. Contents for Emergency Intervention Application for Access to Personal Property. An application for emergency intervention to gain access to rental accommodations of a decedent at the time of the decedent’s death that contain the decedent’s personal property must be sworn and must contain:

      (1) the name, address, and interest of the applicant;

      (2) the facts showing an immediate necessity for the issuance of an emergency intervention order by the court;

      (3) the date and place of the decedent’s death, the decedent’s residential address, and the name and address of the funeral home holding the decedent’s remains;

      (4) any known or ascertainable heirs and devisees of the decedent and the reason:

            (a) the heirs and devisees cannot be contacted; or

            (b) the heirs and devisees have refused to assist in the protection of the decedent’s personal property;

      (5) the type and location of the decedent’s personal property and the name of the person in possession of the property; and

      (6) the name and address of the owner or manager of the decedent’s rental accommodations and whether access to the accommodations is necessary.

Added by Acts 1995, 74th Leg., ch. 642, Sec. 9, eff. Sept. 1, 1995. Renumbered from V.A.T.S., Probate Code Sec. 522A and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 8.02, eff. June 15, 2007.

Sec. 113. Orders of Emergency Intervention.

(a) If the court determines on review of an application filed under Section 108 of this code that emergency intervention is necessary to obtain funds needed for a decedent’s funeral and burial expenses, the court may order funds of the decedent held by an employer, individual, or financial institution to be paid directly to a funeral home only for reasonable and necessary attorney’s fees for the attorney who obtained the order granted under this section, for court costs for obtaining the order, and for funeral and burial expenses not to exceed $5,000 as ordered by the court to provide the decedent with a reasonable, dignified, and appropriate funeral and burial.

(b) If the court determines on review of an application filed under Section 108 of this code that emergency intervention is necessary to gain access to accommodations rented by the decedent at the time of the decedent’s death that contain the decedent’s personal property, the court may order one or more of the following:

      (1) the owner or agent of the rental accommodations shall grant the applicant access to the accommodations at a reasonable time and in the presence of the owner or agent;

      (2) the applicant and owner or agent of the rental accommodations shall jointly prepare and file with the court a list that generally describes the decedent’s property found at the premises;

      (3) the applicant or the owner or agent of the rental accommodations may remove and store the decedent’s property at another location until claimed by the decedent’s heirs;

      (4) the applicant has only the powers that are specifically stated in the order and that are necessary to protect the decedent’s property that is the subject of the application; or

      (5) funds of the decedent held by an employer, individual, or financial institution to be paid to the applicant for reasonable and necessary attorney’s fees and court costs for obtaining the order.

(c) The court clerk may issue certified copies of an emergency intervention order on request of the applicant only until the 90th day after the date the order was signed or the date a personal representative is qualified, whichever occurs first.

(d) A person who is furnished with a certified copy of an emergency intervention order within the period described by Subsection (c) of this section is not personally liable for the person’s actions that are taken in accordance with and in reliance on the order.

Added by Acts 1993, 73rd Leg., ch. 712, Sec. 7, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 642, Sec. 10, eff. Sept. 1, 1995. Renumbered from V.A.T.S., Probate Code Sec. 523 and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997.

Sec. 114. Termination.

(a) All power and authority of an applicant under an emergency intervention order cease to be effective or enforceable on the 90th day after the date the order was issued or on the date a personal representative is qualified, whichever occurs first.

(b) If a personal representative has not been appointed when an emergency intervention order issued under Section 113(b) of this code ceases to be effective, a person who is in possession of the decedent’s personal property that is the subject of the order, without incurring civil liability, may:

      (1) release the property to the decedent’s heirs; or

      (2) dispose of the property under Subchapter C, Chapter 54, Property Code, or Section 7.209 or 7.210, Business & Commerce Code.

Added by Acts 1993, 73rd Leg., ch. 712, Sec. 7, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 642, Sec. 11, eff. Sept. 1, 1995. Renumbered from V.A.T.S. Probate Code, Sec. 524 and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997.

Sec. 115. Limitation on Right of Surviving Spouse to Control Deceased’s Burial or Cremation.

(a) An application under this section may be filed by:

      (1) the executor of the deceased’s will; or

      (2) the next of kin of the deceased, the nearest in order of descent first, and so on, and next of kin includes the deceased’s descendants who legally adopted the deceased or who have been legally adopted by the deceased.

(b) An application under this section must be under oath and must establish:

      (1) whether the deceased died intestate or testate;

      (2) the surviving spouse is alleged to be a principal or accomplice in a wilful act which resulted in the death of the deceased; and

      (3) good cause exists to limit the right of the surviving spouse to control the burial and interment or cremation of the deceased spouse.

(c) After notice and hearing, without regard to whether the deceased died intestate or testate, a court may limit the right of a surviving spouse, whether or not the spouse has been designated by the deceased’s will as the executor of a deceased spouse’s estate, to control the burial and interment or cremation of the deceased spouse if the court finds that there is good cause to believe that the surviving spouse is the principal or an accomplice in a wilful act which resulted in the death of the deceased spouse.

(d) If the court limits the surviving spouse’s right of control, as provided by Subsection (c), the court shall designate and authorize a person to make burial or cremation arrangements.

Added by Acts 1995, 74th Leg., ch. 642, Sec. 12, eff. Sept. 1, 1995. Renumbered from V.A.T.S. Probate Code, Sec. 525 and amended by Acts 1997, 75th Leg., ch. 199, Sec. 1, eff. Sept. 1, 1997.

PART 4. CITATIONS AND NOTICES

Sec. 128. Citations with Respect to Applications for Probate or for Issuance of Letters.

(a) Where Application Is for Probate of a Written Will Produced in Court or for Letters of Administration. When an application for the probate of a written will produced in court, or for letters of administration, is filed with the clerk, he shall issue a citation to all parties interested in such estate, which citation shall be served by posting and shall state:

      (1) That such application has been filed, and the nature of it.

      (2) The name of the deceased and of the applicant.

      (3) The time when such application will be acted upon.

      (4) That all persons interested in the estate should appear at the time named therein and contest said application, should they desire to do so.

(b) Where Application Is for Probate of a Written Will Not Produced. When the application is for the probate of a written will which cannot be produced in court, the clerk shall issue a citation to all parties interested in such estate, which citation shall contain substantially the statements made in the application for probate, and the time when, place where, and the court before which such application will be acted upon. If the heirs of the testator be residents of this state, and their residence be known, the citation shall be served upon them by personal service. Service of such citation may be made by publication in the following cases:

      (1) When the heirs are non-residents of this state; or

      (2) When their names or their residences are unknown; or

      (3) When they are transient persons.

(c) No Action Until Service Is Had. No application for the probate of a will or for the issuance of letters shall be acted upon until service of citation has been made in the manner provided herein.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 5.03, eff. September 1, 2007.

Sec. 128A. Notice to Certain Beneficiaries after Probate of Will.

(a) In this section, “beneficiary” means a person, entity, state, governmental agency of the state, charitable organization, or trustee of a trust entitled to receive property under the terms of a decedent’s will, to be determined for purposes of this section with the assumption that each person who is alive on the date of the decedent’s death survives any period required to receive the bequest as specified by the terms of the will. The term does not include a person, entity, state, governmental agency of the state, charitable organization, or trustee of a trust that would be entitled to receive property under the terms of a decedent’s will on the occurrence of a contingency that has not occurred as of the date of the decedent’s death.

(a-1)    This section does not apply to the probate of a will as a muniment of title.

(b) Except as provided by Subsection (d) of this section, not later than the 60th day after the date of an order admitting a decedent’s will to probate, the personal representative of the decedent’s estate, including an independent executor or independent administrator, shall give notice that complies with Subsection (e) of this section to each beneficiary named in the will whose identity and address are known to the personal representative or, through reasonable diligence, can be ascertained. If, after the 60th day after the date of the order, the personal representative becomes aware of the identity and address of a beneficiary who was not given notice on or before the 60th day, the personal representative shall give the notice as soon as possible after becoming aware of that information.

(c) Notwithstanding the requirement under Subsection (b) of this section that the personal representative give the notice to the beneficiary, the personal representative shall give the notice with respect to a beneficiary described by this subsection as follows:

      (1) if the beneficiary is a trustee of a trust, to the trustee, unless the personal representative is the trustee, in which case the personal representative shall, except as provided by Subsection (c-1) of this section, give the notice to the person or class of persons first eligible to receive the trust income, to be determined for purposes of this subdivision as if the trust were in existence on the date of the decedent’s death;

      (2) if the beneficiary has a court-appointed guardian or conservator, to that guardian or conservator;

      (3) if the beneficiary is a minor for whom no guardian or conservator has been appointed, to a parent of the minor; and

      (4) if the beneficiary is a charity that for any reason cannot be notified, to the attorney general.

(c-1)    The personal representative is not required to give the notice otherwise required by Subsection (c)(1) of this section to a person eligible to receive trust income at the sole discretion of the trustee of a trust if:

      (1) the personal representative has given the notice to an ancestor of the person who has a similar interest in the trust; and

      (2) no apparent conflict exists between the ancestor and the person eligible to receive trust income.

(d) A personal representative is not required to give the notice otherwise required by this section to a beneficiary who:

      (1) has made an appearance in the proceeding with respect to the decedent’s estate before the will was admitted to probate;

      (2) is entitled to receive aggregate gifts under the will with an estimated value of #2,000 or less;

      (3) has received all gifts to which the beneficiary is entitled under the will not later than the 60th day after the date of the order admitting the decedent’s will to probate; or

      (4) has received a copy of the will that was admitted to probate or a written summary of the gifts to the beneficiary under the will and has waived the right to receive the notice in an instrument that:

            (A)      either acknowledges the receipt of the copy of the will or includes the written summary of the gifts to the beneficiary under the will;

            (B)      is signed by the beneficiary; and

            (c) is filed with the court.

(e) The notice required by this section must include:

      (1) the name and address of the beneficiary to whom the notice is given or, for a beneficiary described by Subsection (c) of this section, the name and address of the beneficiary for whom the notice is given and of the person to whom the notice is given;

      (2) the decedent’s name;

      (3) a statement that the decedent’s will has been admitted to probate;

      (4) a statement that the beneficiary to whom or for whom the notice is given is named as a beneficiary in the will;

      (5) the personal representative’s name and contact information; and

      (6) either:

            (A)      a copy of the will that was admitted to probate and the order admitting the will to probate; or

            (B)      a summary of the gifts to the beneficiary under the will, the court in which the will was admitted to probate, the docket number assigned to the estate, the date the will was admitted to probate, and, if different, the date the court appointed the personal representative.

(f)  The notice required by this section must be sent by registered or certified mail, return receipt requested.

(g) Not later than the 90th day after the date of an order admitting a will to probate, the personal representative shall file with the clerk of the court in which the decedent’s estate is pending a sworn affidavit of the personal representative, or a certificate signed by the personal representative’s attorney, stating:

      (1) for each beneficiary to whom notice was required to be given under this section, the name and address of the beneficiary to whom the personal representative gave the notice or, for a beneficiary described by Subsection (c) of this section, the name and address of the beneficiary and of the person to whom the notice was given;

      (2) the name and address of each beneficiary to whom notice was not required to be given under Subsection (d)(2), (3), or (4) of this section;

      (3) the name of each beneficiary whose identity or address could not be ascertained despite the personal representative’s exercise of reasonable diligence; and

      (4) any other information necessary to explain the personal representative’s inability to give the notice to or for any beneficiary as required by this section.

(h) The affidavit or certificate required by Subsection (g) of this section may be included with any pleading or other document filed with the clerk of the court, including the inventory, appraisement, and list of claims, an affidavit in lieu of the inventory, appraisement, and list of claims, or an application for an extension of the deadline to file the inventory, appraisement, and list of claims or an affidavit in lieu of the inventory, appraisement, and list of claims, provided that the pleading or other document with which the affidavit or certificate is included is filed not later than the date the affidavit or certificate is required to be filed as provided by Subsection (g) of this section.

Added by Acts 1989, 71st Leg., ch. 1035, Sec. 7, eff. Sept. 1, 1989. Amended by: Acts 2007, 80th Leg., R.S., Ch. 801, Sec. 1, eff. September 1, 2007. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 128B. Notice to Heirs on Application to Probate Will 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, 76th Leg., ch. 855, Sec. 2, eff. Sept. 1, 1999. Amended by: Acts 2007, 80th Leg., R.S., Ch. 801, Sec. 2, eff. September 1, 2007.

Sec. 129. Validation of Prior Modes of Service of Citation.

(a) In all cases where written wills produced in court have been probated prior to June 14, 1927, after publication of citation as provided by the then Article 28 of the Revised Civil Statutes of Texas (1925), without service of citation, the action of the courts in admitting said wills to probate is hereby validated in so far as service of citation is concerned.

(b) In all cases where written wills produced in court have been probated or letters of administration have been granted prior to May 18, 1939, after citation, as provided by the then Article 3334, Title 54, of the Revised Civil Statutes of Texas (1925), without service of citation as provided for in the then Article 3336, Title 54, of the Revised Civil Statutes of Texas (1925) as amended by Acts 1935, 44th Legislature, page 659, Chapter 273, Section 1, such service of citation and the action of the court in admitting said wills to probate and granting administration upon estates, are hereby validated in so far as service of citation is concerned.

(c) In all cases where written wills have been probated or letters of administration granted, prior to June 12, 1941, upon citation or notice duly issued by the clerk in conformance with the requirements of the then Article 3333 of Title 54 of the Revised Civil Statutes of Texas (1925), as amended, but not directed to the sheriff or any constable of the county wherein the proceeding was pending, and such citation or notice having been duly posted by the sheriff or any constable of said county and returned for or in the time, manner, and form required by law, such citation or notice and return thereof and the action of the court in admitting said wills to probate or granting letters of administration upon estates, are hereby validated in so far as said citation or notice, and the issuance, service and return thereof are concerned.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 129A. Service by Publication or Other Substituted Service. Notwithstanding any other provisions of this part of this chapter, if an attempt to make service under this part of this chapter is unsuccessful, service may be made in the manner provided by Rule 109 or 109a, Texas Rules of Civil Procedure, for the service of a citation on a party by publication or other substituted service.

Added by Acts 1993, 73rd Leg., ch. 712, Sec. 2, eff. Sept. 1, 1993.

Chapter VI. Special Types of Administration

PART 1. TEMPORARY ADMINISTRATION IN THE INTEREST OF ESTATES OF DEPENDENTS

Sec. 131A. Appointment of Temporary Administrators.

(a) If a county judge determines that the interest of a decedent’s estate requires the immediate appointment of a personal representative, he shall, by written order, appoint a temporary administrator with limited powers as the circumstances of the case require. The duration of the appointment must be specified in the court’s order and may not exceed 180 days unless the appointment is made permanent as provided by Subsection (j) of this section.

(b) Any person may file with the clerk of the court a written application for the appointment of a temporary administrator of a decedent’s estate under this section. The application must be verified and must include the information required by Section 81 of this code if the decedent died testate or Section 82 of this code if the decedent died intestate and an affidavit that sets out:

      (1) the name, address, and interest of the applicant;

      (2) the facts showing an immediate necessity for the appointment of a temporary administrator;

      (3) the requested powers and duties of the temporary administrator;

      (4) a statement that the applicant is entitled to letters of temporary administration and is not disqualified by law from serving as a temporary administrator; and

      (5) a description of the real and personal property that the applicant believes to be in the decedent’s estate.

(c) An order of appointment must:

      (1) designate the appointee as “temporary administrator” of the decedent’s estate for the specified period;

      (2) define the powers conferred on the appointee; and

      (3) set the amount of bond to be given by the appointee.

(d) Not later than the third business day after the date of the order, the appointee shall file with the county clerk a bond in the amount ordered by the court. In this subsection, “business day” means a day other than a Saturday, Sunday, or holiday recognized by this state.

(e) Not later than the third day after the date on which an appointee qualifies, the county clerk shall issue to the appointee letters of appointment that set forth the powers to be exercised by the appointee as ordered by the court.

(f)  On the date that the county clerk issues letters of appointment, the county clerk shall post a notice of the appointment to all interested persons on the courthouse door.

(g) On the date the county clerk issues letters of appointment, the appointee shall notify the known heirs of the decedent of his appointment by certified mail, return receipt requested.

(h) A notice required by Subsection (f) or (g) of this section must state that:

      (1) an interested person or an heir may request a hearing to contest the appointment not later than the 15th day after the date that the letters of appointment are issued;

      (2) if no contest is made within the period specified by the notice, the appointment will continue for the time specified in the order of appointment; and

      (3) the court may make the appointment permanent.

(I)  If an interested person or an heir requests a hearing to contest the appointment of a temporary administrator, a hearing shall be held and a determination made not later than the 10th day after the date the request was made. If a request is not made on or before the 15th day after the date that the letters of appointment are issued, the appointment of a temporary administrator continues for the period specified in the order, unless made permanent under Subsection (j) of this section. During the pendency of a contest of the appointment of a temporary administrator, the temporary appointee shall continue to act as administrator of the estate to the extent of the powers conferred by his appointment. If the court sets aside the appointment, the court may require the temporary administrator to prepare and file, under oath, a complete exhibit of the condition of the estate and detail the disposition the temporary administrator has made of the property of the estate.

(j)  At the conclusion of the term of appointment of a temporary administrator, the court may, by written order, make the appointment permanent if the permanent appointment is in the interest of the estate.

Added by Acts 1987, 70th Leg., ch. 460, Sec. 2, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 1035, Sec. 8, eff. Sept. 1, 1989; Acts 1997, 75th Leg., ch. 540, Sec. 2, eff. Sept. 1, 1997. Amended by: Acts 2005, 79th Leg., Ch. 765, Sec. 1, eff. June 17, 2005.

Sec. 132. Temporary Administration Pending Contest of a Will or Administration.

(a) Appointment of Temporary Administrator. Pending a contest relative to the probate of a will or the granting of letters of administration, the court may appoint a temporary administrator, with such limited powers as the circumstances of the case require; and such appointment may continue in force until the termination of the contest and the appointment of an executor or administrator with full powers. The power of appointment in this Subsection is in addition to the court’s power of appointment under Section 131A of this Code.

(b) Additional Powers Relative to Claims. When temporary administration has been granted pending a will contest, or pending a contest on an application for letters of administration, the court may, at any time during the pendency of the contest, confer upon the temporary administrator all the power and authority of a permanent administrator with respect to claims against the estate, and in such case the court and the temporary administrator shall act in the same manner as in permanent administration in connection with such matters as the approval or disapproval of claims, the payment of claims, and the making of sales of real or personal property for the payment of claims; provided, however, that in the event such power and authority is conferred upon a temporary administrator, he shall be required to give bond in the full amount required of a permanent administrator. The provisions of this Subsection are cumulative and shall not be construed to exclude the right of the court to order a temporary administrator to do any and all of the things covered by this Subsection in other cases where the doing of such things shall be necessary or expedient to preserve the estate pending final determination of the contest.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1987, 70th Leg., ch. 460, Sec. 3, eff. Sept. 1, 1987.

Sec. 133. Powers of Temporary Administrators. Temporary administrators shall have and exercise only such rights and powers as are specifically expressed in the order of the court appointing them, and as may be expressed in subsequent orders of the court. Where a court, by a subsequent order, extends the rights and powers of a temporary administrator, it may require additional bond commensurate with such extension. Any acts performed by temporary administrators that are not so expressly authorized shall be void.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 25, eff. Sept. 1, 1993.

Sec. 134. Accounting. At the expiration of a temporary appointment, the appointee shall file with the clerk of the court a sworn list of all property of the estate which has come into his hands, a return of all sales made by him, and a full exhibit and account of all his acts as such appointee.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 135. Closing Temporary Administration. The list, return, exhibit, and account so filed shall be acted upon by the court and, whenever temporary letters shall expire or cease to be of effect for any cause, the court shall immediately enter an order requiring such temporary appointee forthwith to deliver the estate remaining in his possession to the person or persons legally entitled to its possession. Upon proof of such delivery, the appointee shall be discharged and the sureties on his bond released as to any future liability.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 26, eff. Sept. 1, 1993.

PART 2. (REPEALED)

PART 3. SMALL ESTATES

Sec. 137. Collection of Small Estates upon Affidavit.

(a) The distributees of the estate of a decedent who dies intestate shall be entitled thereto, to the extent that the assets, exclusive of homestead and exempt property, exceed the known liabilities of said estate, exclusive of liabilities secured by homestead and exempt property, without awaiting the appointment of a personal representative when:

      (1) No petition for the appointment of a personal representative is pending or has been granted; and

      (2) Thirty days have elapsed since the death of the decedent; and

      (3) The value of the entire assets of the estate, not including homestead and exempt property, does not exceed $50,000; and

      (4) There is filed with the clerk of the court having jurisdiction and venue an affidavit sworn to by two disinterested witnesses, by all such distributees that have legal capacity, and, if the facts warrant, by the natural guardian or next of kin of any minor or the guardian of any other incapacitated person who is also a distributee, which affidavit shall be examined by the judge of the court having jurisdiction and venue; and

      (5) The affidavit shows the existence of the foregoing conditions and includes a list of all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history facts concerning heirship that show the distributees’ rights to receive the money or property of the estate or to have such evidences of money, property, or other rights of the estate as are found to exist transferred to them as heirs or assignees; and

      (6) The judge, in the judge’s discretion, finds that the affidavit conforms to the terms of this section and approves the affidavit; and

      (7) A copy of the affidavit, certified to by said clerk, is furnished by the distributees of the estate to the person or persons owing money to the estate, having custody or possession of property of the estate, or acting as registrar, fiduciary or transfer agent of or for evidences of interest, indebtedness, property, or other right belonging to the estate.

(b) This section does not affect the disposition of property under the terms of a will or other testamentary document nor, except as provided by Subsection (c) of this section, does it transfer title to real property.

(c) Title to a decedent’s homestead that is the only real property in a decedent’s estate may be transferred on an affidavit that meets the requirements of this section. An affidavit that is used to transfer title to a homestead under this section must be recorded in the deed records of a county in which the homestead is located. A bona fide purchaser for value may rely on a recorded affidavit under this section. A bona fide purchaser for value without actual or constructive notice of an heir who is not disclosed in a recorded affidavit under this section acquires title to a homestead free of the interests of the undisclosed heir, but the bona fide purchaser remains subject to any claim a creditor of the decedent has by law. A purchaser has constructive notice of an heir who is not disclosed in a recorded affidavit under this section if an affidavit, judgment of heirship, or title transaction in the chain of title in the deed records identifies the heir of the decedent who is not disclosed in the affidavit as an heir of the decedent. An heir who is not disclosed in a recorded affidavit under this section may recover from an heir who receives consideration from a purchaser in a transfer for value of title to a homestead passing under the affidavit.

(d) If the judge approves the affidavit under this section, the affidavit is to be recorded as an official public record under Chapter 194, Local Government Code. If the county has not adopted a microfilm or microphotographic process under Chapter 194, Local Government Code, the county clerk shall provide and keep in his office an appropriate book labeled “Small Estates,” with an accurate index showing the name of the decedent and reference to land, if any, involved, in which he shall record every such affidavit so filed, upon being paid his legal recording fee.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 4, eff. Aug. 22, 1957; Acts 1969, 61st Leg., p. 1978, ch. 670, Sec. 1, eff. Sept. 1, 1969; Acts 1975, 64th Leg., p. 1402, ch. 543, Sec. 1, eff. Sept. 1, 1975; Acts 1977, 65th Leg., p. 361, ch. 177, Sec. 1, eff. May 20, 1977; Acts 1979, 66th Leg., p. 1747, ch. 713, Sec. 14, eff. Aug. 27, 1979; Acts 1983, 68th Leg., p. 4560, ch. 757, Sec. 1, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 594, Sec. 1, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 642, Sec. 3, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1039, Sec. 8, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 540, Sec. 3, eff. Sept. 1, 1997.

Sec. 138. Effect of Affidavit. The person making payment, delivery, transfer or issuance pursuant to the affidavit described in the preceding Section shall be released to the same extent as if made to a personal representative of the decedent, and shall not be required to see to the application thereof or to inquire into the truth of any statement in the affidavit, but the distributees to whom payment, delivery, transfer, or issuance is made shall be answerable therefor to any person having a prior right and be accountable to any personal representative thereafter appointed. In addition, the person or persons who execute the affidavit shall be liable for any damage or loss to any person which arises from any payment, delivery, transfer, or issuance made in reliance on such affidavit. If the person to whom such affidavit is delivered refuses to pay, deliver, transfer, or issue the property as above provided, such property may be recovered in an action brought for such purpose by or on behalf of the distributees entitled thereto, upon proof of the facts required to be stated in the affidavit.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 642, Sec. 4, eff. Sept. 1, 1995.

Sec. 139. Application for Order of No Administration. If the value of the entire assets of an estate, not including homestead and exempt property, does not exceed the amount to which the surviving spouse, minor children, and adult incapacitated children of the decedent are entitled as a family allowance, there may be filed by or on behalf of the surviving spouse, minor children, or adult incapacitated children an application in any court of proper venue for administration, or, if an application for the appointment of a personal representative has been filed but not yet granted, then in the court where such application has been filed, requesting the court to make a family allowance and to enter an order that no administration shall be necessary. The application shall state the names of the heirs or devisees, a list of creditors of the estate together with the amounts of the claims so far as the same are known, and a description of all real and personal property belonging to the estate, together with the estimated value thereof according to the best knowledge and information of the applicant, and the liens and encumbrances thereon, with a prayer that the court make a family allowance and that, if the entire assets of the estate, not including homestead and exempt property, are thereby exhausted, the same be set aside to the surviving spouse, minor children, and adult incapacitated children as in the case of other family allowances provided for by this Code.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 140. Hearing and Order upon the Application. Upon the filing of an application for no administration such as that provided for in the preceding Section, the court may hear the same forthwith without notice, or at such time and upon such notice as the court requires. Upon the hearing of the application, if the court finds that the facts contained therein are true and that the expenses of last illness, funeral charges, and expenses of the proceeding have been paid or secured, the court shall make a family allowance and, if the entire assets of the estate, not including homestead and exempt property, are thereby exhausted, shall order that no administration be had of the estate and shall assign to the surviving spouse, minor children, and adult incapacitated children the whole of the estate, in the same manner and with the same effect as provided in this Code for the making of family allowances to the surviving spouse, minor children, and adult incapacitated children.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 141. Effect of Order. The order that no administration be had on the estate shall constitute sufficient legal authority to all persons owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right, belonging to the estate, and to persons purchasing from or otherwise dealing with the estate, for payment or transfer to the persons described in the order as entitled to receive the estate without administration, and the persons so described in the order shall be entitled to enforce their right to such payment or transfer by suit.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 142. Proceeding to Revoke Order. At any time within one year after the entry of an order of no administration, and not thereafter, any interested person may file an application to revoke the same, alleging that other property has been discovered, or that property belonging to the estate was not included in the application for no administration, or that the property described in the application was incorrectly valued, and that if said property were added, included, or correctly valued, as the case may be, the total value of the property would exceed that necessary to justify the court in ordering no administration. Upon proof of any of such grounds, the court shall revoke the order of no administration. In case of any contest as to the value of any property, the court may appoint two appraisers to appraise the same in accordance with the procedure hereinafter provided for inventories and appraisements, and the appraisement of such appraisers shall be received in evidence but shall not be conclusive.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 143. Summary Proceedings for Small Estates after Personal Representative Appointed. Whenever, after the inventory, appraisement, and list of claims or the affidavit in lieu of the inventory, appraisement, and list of claims has been filed by a personal representative, it is established that the estate of a decedent, exclusive of the homestead and exempt property and family allowance to the surviving spouse, minor children, and adult incapacitated children, does not exceed the amount sufficient to pay the claims of Classes One to Four, inclusive, as claims are hereinafter classified, the personal representative shall, upon order of the court, pay the claims in the order provided and to the extent permitted by the assets of the estate subject to the payment of such claims, and thereafter present the personal representative’s account with an application for the settlement and allowance thereof. Thereupon the court, with or without notice, may adjust, correct, settle, allow or disallow such account, and, if the account is settled and allowed, may decree final distribution, discharge the personal representative, and close the administration.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

PART 4. INDEPENDENT ADMINISTRATION

Sec. 145. Independent Administration.

(a)   Independent administration of an estate may be created as provided in Subsections (b) through (e) of this section.

(b)  Any person capable of making a will may provide in his will that no other action shall be had in the county court in relation to the settlement of his estate than the probating and recording of his will, and the return of an inventory, appraisement, and list of claims of his estate.

(c)   In situations where an executor is named in a decedent’s will, but the will does not provide for independent administration of the decedent’s estate as provided in Subsection (b) of this section, all of the distributees of the decedent may agree on the advisability of having an independent administration and collectively designate in the application for probate of the decedent’s will the executor named in the will to serve as independent executor and request in the application that no other action shall be had in the county court in relation to the settlement of the decedent’s estate other than the probating and recording of the decedent’s will, and the return of an inventory, appraisement, and list of claims of the decedent’s estate. In such case the county court shall enter an order granting independent administration and appointing the person, firm, or corporation designated in the application as independent executor, unless the county court finds that it would not be in the best interest of the estate to do so.

(d)  In situations where no executor is named in the decedent’s will, or in situations where each executor named in the will is deceased or is disqualified to serve as executor or indicates by affidavit filed with the application for administration of the decedent’s estate his inability or unwillingness to serve as executor, all of the distributees of the decedent may agree on the advisability of having an independent administration and collectively designate in the application for probate of the decedent’s will a qualified person, firm, or corporation to serve as independent administrator and request in the application that no other action shall be had in the county court in relation to the settlement of the decedent’s estate other than the probating and recording of the decedent’s will, and the return of an inventory, appraisement, and list of claims of the decedent’s estate. In such case the county court shall enter an order granting independent administration and appointing the person, firm, or corporation designated in the application as independent administrator, unless the county court finds that it would not be in the best interest of the estate to do so.

(e)   All of the distributees of a decedent dying intestate may agree on the advisability of having an independent administration and collectively designate in the application for administration of the decedent’s estate a qualified person, firm, or corporation to serve as independent administrator and request in the application that no other action shall be had in the county court in relation to the settlement of the decedent’s estate other than the return of an inventory, appraisement, and list of claims of the decedent’s estate. In such case the county court shall enter an order granting independent administration and appointing the person, firm, or corporation designated in the application as independent administrator, unless the county court finds that it would not be in the best interest of the estate to do so.

(f)   In those cases where an independent administration is sought under the provisions of Subsections (c) through (e) above, all distributees shall be served with citation and notice of the application for independent administration unless the distributee waives the issuance or service of citation or enters an appearance in court.

(g)  The court may not appoint an independent administrator to serve in an intestate administration unless and until the parties seeking appointment of the independent administrator have been determined, through a proceeding to declare heirship under Chapter III of this code, to constitute all of the decedent’s heirs.

(h)  When an independent administration has been created, and the order appointing an independent executor has been entered by the county court, and the inventory, appraisement, and list aforesaid has been filed by the executor and approved by the county court or an affidavit in lieu of the inventory, appraisement, and list of claims has been filed by the executor, as long as the estate is represented by an independent executor, further action of any nature shall not be had in the county court except where this Code specifically and explicitly provides for some action in the county court.

(I)   If a distributee described in Subsections (c) through (e) of this section is an incapacitated person, the guardian of the person of the distributee may sign the application on behalf of the distributee. If the county court finds that either the granting of independent administration or the appointment of the person, firm, or corporation designated in the application as independent executor would not be in the best interests of the incapacitated person, then, notwithstanding anything to the contrary in Subsections (c) through (e) of this section, the county court shall not enter an order granting independent administration of the estate. If such distributee who is an incapacitated person has no guardian of the person, the county court may appoint a guardian ad litem to make application on behalf of the incapacitated person if the county court considers such an appointment necessary to protect the interest of the distributees. Alternatively, if the distributee who is an incapacitated person is a minor and has no guardian of the person, the natural guardian or guardians of the minor may consent on the minor’s behalf if there is no conflict of interest between the minor and the natural guardian or guardians.

(j)   If a trust is created in the decedent’s will, the person or class of persons first eligible to receive the income from the trust, when determined as if the trust were to be in existence on the date of the decedent’s death, shall, for the purposes of Subsections (c) and (d) of this section, be deemed to be the distributee or distributees on behalf of such trust, and any other trust or trusts coming into existence upon the termination of such trust, and are authorized to apply for independent administration on behalf of the trusts without the consent or agreement of the trustee or any other beneficiary of the trust, or the trustee or any beneficiary of any other trust which may come into existence upon the termination of such trust. If a trust beneficiary who is considered to be a distributee under this subsection is an incapacitated person, the trustee or cotrustee may file the application or give the consent, provided that the trustee or cotrustee is not the person proposed to serve as the independent executor.

(k)  If a life estate is created either in the decedent’s will or by law, the life tenant or life tenants, when determined as if the life estate were to commence on the date of the decedent’s death, shall, for the purposes of Subsections (c) through (e) of this section, be deemed to be the distributee or distributees on behalf of the entire estate created, and are authorized to apply for independent administration on behalf of the estate without the consent or approval of any remainderman.

(l)   If a decedent’s will contains a provision that a distributee must survive the decedent by a prescribed period of time in order to take under the decedent’s will, then, for the purposes of determining who shall be the distributee under Subsections (c), (d), (h), and (I) of this section, it shall be presumed that the distributees living at the time of the filing of the application for probate of the decedent’s will survived the decedent by the prescribed period.

(m) In the case of all decedents, whether dying testate or intestate, for the purposes of determining who shall be the distributees under Subsections (c), (d), (e), (h), and (I) of this section, it shall be presumed that no distributee living at the time the application for independent administration is filed shall subsequently disclaim any portion of such distributee’s interest in the decedent’s estate.

(n)  If a distributee of a decedent’s estate should die and if by virtue of such distributee’s death such distributee’s share of the decedent’s estate shall become payable to such distributee’s estate, then the deceased distributee’s personal representative may sign the application for independent administration of the decedent’s estate under Subsections (c), (d), (e), (h), and (I) of this section.

(o)  Notwithstanding anything to the contrary in this section, a person capable of making a will may provide in his will that no independent administration of his estate may be allowed. In such case, his estate, if administered, shall be administered and settled under the direction of the county court as other estates are required to be settled.

(p)  If an independent administration of a decedent’s estate is created pursuant to Subsections (c), (d), or (e) of this section, then, unless the county court shall waive bond on application for waiver, the independent executor shall be required to enter into bond payable to and to be approved by the judge and his or her successors in a sum that is found by the judge to be adequate under all circumstances, or a bond with one surety in a sum that is found by the judge to be adequate under all circumstances, if the surety is an authorized corporate surety. This subsection does not repeal any other section of this Code.

(q)  Absent proof of fraud or collusion on the part of a judge, no judge may be held civilly liable for the commission of misdeeds or the omission of any required act of any person, firm, or corporation designated as an independent executor or independent administrator under Subsections (c), (d), and (e) of the section. Section 36 of this code does not apply to the appointment of an independent executor or administrator under Subsection (c), (d), or (e) of this section.

®)    A person who declines to serve or resigns as independent executor or administrator of a decedent’s estate may be appointed an executor or administrator of the estate if the estate will be administered and settled under the direction of the court.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 2(b); Acts 1977, 65th Leg., p. 1061, ch. 390, Sec. 3, eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 1750, ch. 713, Sec. 16, eff. Aug. 27, 1979; Acts 1991, 72nd Leg., ch. 895, Sec. 10, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 846, Sec. 15, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 9, eff. Sept. 1, 1995. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 145A. Granting Power of Sale By Agreement.

In a situation in which a decedent does not have a will or a decedent’s will does not contain language authorizing the personal representative to sell real property or contains language that is not sufficient to grant the representative that authority, the court may include in an order appointing an independent executor under Section 145 of this code any general or specific authority regarding the power of the independent executor to sell real property that may be consented to by the beneficiaries who are to receive any interest in the real property in the application for independent administration or in their consents to the independent administration. The independent executor, in such event, may sell the real property under the authority granted in the court order without the further consent of those beneficiaries.

Added by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 145B. Independent Executors May Act Without Court Approval.

Unless this code specifically provides otherwise, any action that a personal representative subject to court supervision may take with or without a court order may be taken by an independent executor without a court order. The other provisions of this part are designed to provide additional guidance regarding independent administrations in specified situations, and are not designed to limit by omission or otherwise the application of the general principles set forth in this part.

Added by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 145C. Power of Sale of Estate Property.

(a) Definition. In this section, “independent executor” does not include an independent administrator.

(b) General. Unless limited by the terms of a will, an independent executor, in addition to any power of sale of estate property given in the will, and an independent administrator have the same power of sale for the same purposes as a personal representative has in a supervised administration, but without the requirement of court approval. The procedural requirements applicable to a supervised administration do not apply.

(c) Protection of Person Purchasing Estate Property.

      (1) A person who is not a devisee or heir is not required to inquire into the power of sale of estate property of the independent executor or independent administrator or the propriety of the exercise of the power of sale if the person deals with the independent executor or independent administrator in good faith and:

            (A)      a power of sale is granted to the independent executor in the will;

            (B)      a power of sale is granted under Section 145A of this code in the court order appointing the independent executor or independent administrator; or

            (c) the independent executor or independent administrator provides an affidavit, executed and sworn to under oath and recorded in the deed records of the county where the property is located, that the sale is necessary or advisable for any of the purposes described in Section 341(1) of this code.

      (2) As to acts undertaken in good faith reliance, the affidavit described by Subsection (c)(1)(c) of this section is conclusive proof, as between a purchaser of property from an estate, and the personal representative of the estate or the heirs and distributees of the estate, with respect to the authority of the independent executor or independent administrator to sell the property. The signature or joinder of a devisee or heir who has an interest in the property being sold as described in this section is not necessary for the purchaser to obtain all right, title, and interest of the estate in the property being sold.

      (3) This section does not relieve the independent executor or independent administrator from any duty owed to a devisee or heir in relation, directly or indirectly, to the sale.

(d) No Limitations. This section does not limit the authority of an independent executor or independent administrator to take any other action without court supervision or approval with respect to estate assets that may take place in a supervised administration, for purposes and within the scope otherwise authorized by this code, including the authority to enter into a lease and to borrow money.

Added by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 146. Payment of Claims and Delivery of Exemptions and Allowances.

(a) Duty of the Independent Executor. An independent executor, in the administration of an estate, independently of and without application to, or any action in or by the court:

      (1) shall give the notices required under Sections 294 and 295;

      (2) may give the notice permitted under Section 294(d) and bar a claim under that subsection;

      (3) shall approve, classify, and pay, or reject, claims against the estate in the same order of priority, classification, and proration prescribed in this Code; and

      (4) shall set aside and deliver to those entitled thereto exempt property and allowances for support, and allowances in lieu of exempt property, as prescribed in this Code, to the same extent and result as if the independent executor’s actions had been accomplished in, and under orders of, the court.

(a-1)    Statement in Notice of Claim. To be effective, the notice provided under Subsection (a)(2) of this section must include, in addition to the other information required by Section 294(d) of this code, a statement that a claim may be effectively presented by only one of the methods prescribed by this section.

(b) Secured Claims for Money. Within six months after the date letters are granted or within four months after the date notice is received under Section 295 of this code, whichever is later, a creditor with a claim for money secured by real or personal property of the estate must give notice to the independent executor of the creditor’s election to have the creditor’s claim approved as a matured secured claim to be paid in due course of administration. In addition to giving the notice within this period, a creditor whose claim is secured by real property shall record a notice of the creditor’s election under this subsection in the deed records of the county in which the real property is located. If no election to be a matured secured creditor is made, or the election is made, but not within the prescribed period, or is made within the prescribed period but the creditor has a lien against real property and fails to record notice of the claim in the deed records as required within the prescribed period, the claim shall be a preferred debt and lien against the specific property securing the indebtedness and shall be paid according to the terms of the contract that secured the lien, and the claim may not be asserted against other assets of the estate. The independent executor may pay the claim before the claim matures if paying the claim before maturity is in the best interest of the estate.

(b-1)    Matured Secured Claims.

      (1) A claim approved as a matured secured claim under Subsection (b) of this section remains secured by any lien or security interest against the specific property securing payment of the claim but subordinated to the payment from the property of claims having a higher classification under Section 322 of this code. However, the secured creditor:

            (A)      is not entitled to exercise any remedies in a manner that prevents the payment of the higher priority claims and allowances; and

            (B)      during the administration of the estate, is not entitled to exercise any contractual collection rights, including the power to foreclose, without either the prior written approval of the independent executor or court approval.

      (2) Subdivision (1) of this subsection may not be construed to suspend or otherwise prevent a creditor with a matured secured claim from seeking judicial relief of any kind or from executing any judgment against an independent executor. Except with respect to real property, any third party acting in good faith may obtain good title with respect to an estate asset acquired through a secured creditor’s extrajudicial collection rights, without regard to whether the creditor had the right to collect the asset or whether the creditor acted improperly in exercising those rights during an estate administration due to having elected matured secured status.

      (3) If a claim approved or established by suit as a matured secured claim is secured by property passing to one or more devisees in accordance with Section 71A of this code, the independent executor shall collect from the devisees the amount of the debt and pay that amount to the claimant or shall sell the property and pay out of the sale proceeds the claim and associated expenses of sale consistent with the provisions of Section 306(c-1) of this code applicable to court supervised administrations.

(b-2)    Preferred Debt and Lien Claims. During an independent administration, a secured creditor whose claim is a preferred debt and lien against property securing the indebtedness under Subsection (b) of this section is free to exercise any judicial or extrajudicial collection rights, including the right to foreclosure and execution; provided, however, that the creditor does not have the right to conduct a nonjudicial foreclosure sale within six months after letters are granted.

(b-3)    Certain Unsecured Claims; Barring of Claims. An unsecured creditor who has a claim for money against an estate and who receives a notice under Section 294(d) of this code shall give to the independent executor notice of the nature and amount of the claim not later than the 120th day after the date the notice is received or the claim is barred.

(b-4)    Notices Required by Creditors. Notice to the independent executor required by Subsections (b) and (b-3) of this section must be contained in:

      (1) a written instrument that is hand-delivered with proof of receipt, or mailed by certified mail, return receipt requested with proof of receipt, to the independent executor or the executor’s attorney;

      (2) a pleading filed in a lawsuit with respect to the claim; or

      (3) a written instrument or pleading filed in the court in which the administration of the estate is pending.

(b-5)    Filing Requirements Applicable. Subsection (b-4) of this section does not exempt a creditor who elects matured secured status from the filing requirements of Subsection (b) of this section, to the extent those requirements are applicable.

(b-6)    Statute of Limitations. Except as otherwise provided by Section 16.062, Civil Practice and Remedies Code, the running of the statute of limitations shall be tolled only by a written approval of a claim signed by an independent executor, a pleading filed in a suit pending at the time of the decedent’s death, or a suit brought by the creditor against the independent executor. In particular, the presentation of a statement or claim, or a notice with respect to a claim, to an independent executor does not toll the running of the statute of limitations with respect to that claim.

(b-7)    Other Claim Procedures of Code Generally Do Not Apply. Except as otherwise provided by this section, the procedural provisions of this code governing creditor claims in supervised administrations do not apply to independent administrations. By way of example, but not as a limitation:

      (1) Section 313 of this code does not apply to independent administrations, and consequently a creditor’s claim may not be barred solely because the creditor failed to file a suit not later than the 90th day after the date an independent executor rejected the claim or with respect to a claim for which the independent executor takes no action; and

      (2) Sections 306(f)-(k) of this code do not apply to independent administrations.

(c) Liability of Independent Executor. An independent executor, in the administration of an estate, may pay at any time and without personal liability a claim for money against the estate to the extent approved and classified by the personal representative if:

      (1) the claim is not barred by limitations; and

      (2) at the time of payment, the independent executor reasonably believes the estate will have sufficient assets to pay all claims against the estate.

(d) Notice Required of Unsecured Creditor. An unsecured creditor who has a claim for money against an estate and receives a notice under Section 294(d) shall give notice to the independent executor of the nature and amount of the claim not later than the 120th day after the date on which the notice is received or the claim is barred.

(e) Placement of Notice. Notice required by Subsections (b) and (d) must be contained in:

      (1) a written instrument that is hand-delivered with proof of receipt or mailed by certified mail, return receipt requested, to the independent executor or the executor’s attorney;

      (2) a pleading filed in a lawsuit with respect to the claim; or

      (3) a written instrument or pleading filed in the court in which the administration of the estate is pending.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 2(c), eff. Aug. 21, 1957; Acts 1995, 74th Leg., ch. 1054, Sec. 1, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1302, Sec. 8, eff. Sept. 1, 1997. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 147. Enforcement of Claims by Suit. Any person having a debt or claim against the estate may enforce the payment of the same by suit against the independent executor; and, when judgment is recovered against the independent executor, the execution shall run against the estate of the decedent in the hands of the independent executor which is subject to such debt. The independent executor shall not be required to plead to any suit brought against him for money until after six months from the date that an independent administration was created and the order appointing an independent executor was entered by the county court.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 980, ch. 376, Sec. 1, eff. June 19, 1975; Acts 1977, 65th Leg., p. 1064, ch. 390, Sec. 4, eff. Sept. 1, 1977.

Sec. 148. Requiring Heirs to Give Bond. When an independent administration is created and the order appointing an independent executor is entered by the county court, any person having a debt against such estate may, by written complaint filed in the county court where such order was entered, cause all distributees of the estate, heirs at law, and other persons entitled to any portion of such estate under the will, if any, to be cited by personal service to appear before such county court and execute a bond for an amount equal to the amount of the creditor’s claim or the full value of such estate, as shown by the inventory and list of claims, whichever is the smaller, such bond to be payable to the judge, and his successors, and to be approved by said judge, and conditioned that all obligors shall pay all debts that shall be established against such estate in the manner provided by law. Upon the return of the citation served, unless such person so entitled to any portion of the estate, or some of them, or some other person for them, shall execute such bond to the satisfaction of the county court, such estate shall thereafter be administered and settled under the direction of the county court as other estates are required to be settled. If the bond is executed and approved, the independent administration shall proceed. Creditors of the estate may sue on such bond, and shall be entitled to judgment thereon for the amount of their debt, or they may have their action against those in possession of the estate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1977, 65th Leg., p. 1064, ch. 390, Sec. 5, eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 1750, ch. 713, Sec. 17, eff. Aug. 27, 1979.

Sec. 149. Requiring Independent Executor to Give Bond. When it has been provided by will, regularly probated, that an independent executor appointed by such will shall not be required to give bond for the management of the estate devised by such will, the direction shall be observed, unless it be made to appear at any time that such independent executor is mismanaging the property, or has betrayed or is about to betray his trust, or has in some other way become disqualified, in which case, upon proper proceedings had for that purpose, as in the case of executors or administrators acting under orders of the court, such executor may be required to give bond.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

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. 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; Acts 1999, 76th Leg., ch. 855, Sec. 3, 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 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. Amended by Acts 1985, 69th Leg., ch. 882, Sec. 1, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 760, Sec. 1, eff. Aug. 31, 1987; Acts 1987, 70th Leg., ch. 565, Sec. 1, eff. June 18, 1987; Acts 1999, 76th Leg., ch; 855, Sec. 4, 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, 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, either an inventory of the property of the estate and list of claims that have come to the independent executor’s knowledge or an affidavit in lieu of the inventory, appraisement, and list of claims;

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

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

      (4) the independent executor fails to timely file the affidavit or certificate required by Section 128A of this code;

      (5) the independent executor is proved to have been guilty of gross misconduct or gross mismanagement in the performance of the independent executor’s duties;

      (6) the independent executor becomes an incapacitated person, or is sentenced to the penitentiary, or from any other cause becomes legally incapacitated from properly performing the independent executor’s fiduciary duties; or

      (7) the independent executor becomes incapable of properly performing the independent executor’s fiduciary duties due to a material conflict of interest.

(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. Amended by Acts 1987, 70th Leg., ch. 719, Sec. 1, eff. Aug. 31, 1987; Acts 1989, 71st Leg., ch. 1035, Sec. 10, eff; Sept. 1, 1989; Acts 1995, 74th Leg., ch. 1039, Sec. 10, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 855, Sec. 5, eff; Sept. 1, 1999. Amended by: Acts 2007, 80th Leg., R.S., Ch. 801, Sec. 3, eff. September 1, 2007. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

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, 76th Leg., ch. 855, Sec. 6, 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.

Added by Acts 1999, 76th Leg., ch. 855, Sec. 6, 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.

Added by Acts 1999, 76th Leg., ch. 855, Sec. 6, 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.

Added by Acts 1999, 76th Leg., ch. 855, Sec. 6, eff. Sept. 1, 1999.

Sec. 150. Partition and Distribution or Sale of Property Incapable of Division. If the will does not distribute the entire estate of the testator, or provide a means for partition of said estate, or if no will was probated, the independent executor may file his final account in the county court in which the will was probated, or if no will was probated, in the county court in which the order appointing the independent executor was entered, and ask for either partition and distribution of the estate or an order of sale of any portion of the estate alleged by the independent executor and found by the court to be incapable of a fair and equal partition and distribution, or both; and the same either shall be partitioned and distributed or shall be sold, or both, in the manner provided for the partition and distribution of property and the sale of property incapable of division in estates administered under the direction of the county court.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1977, 65th Leg., p. 1065, ch. 390, Sec. 7, eff. Sept. 1, 1977; Acts 1979, 66th Leg., p. 1752, ch. 713, Sec. 20, eff. Aug. 27, 1979.

Sec. 151. Closing Independent Administration by Closing Report or Notice of Closing Estate.

(a) Filing of Closing Report or Notice of Closing Estate. When all of the debts known to exist against the estate have been paid, or when they have been paid so far as the assets in the hands of the independent executor will permit, when there is no pending litigation, and when the independent executor has distributed to the persons entitled thereto all assets of the estate, if any, remaining after payment of debts, the independent executor may file with the court a closing report or a notice of closing of the estate.

(a-1)    Closing Report. An independent executor may file a closing report verified by affidavit that:

      (1) shows:

            (A)   the property of the estate which came into the possession of the independent executor;

            (B)   the debts that have been paid;

            (c)    the debts, if any, still owing by the estate;

            (D)   the property of the estate, if any, remaining on hand after payment of debts; and

            (E)   the names and residences of the persons to whom the property of the estate, if any, remaining on hand after payment of debts has been distributed; and

      (2) includes signed receipts or other proof of delivery of property to the distributees named in the closing report if the closing report reflects that there was property remaining on hand after payment of debts.

(b) Notice of Closing Estate.

      (1) Instead of filing a closing report under Subsection (a-1) of this section, an independent executor may file a notice of closing estate verified by affidavit that states:

            (A)      that all debts known to exist against the estate have been paid or have been paid to the extent permitted by the assets in the independent executor’s possession;

            (B)      that all remaining assets of the estate, if any, have been distributed; and

            (c) the names and addresses of the distributees to whom the property of the estate, if any, remaining on hand after payment of debts has been distributed.

      (2) Before filing the notice, the independent executor shall provide to each distributee of the estate a copy of the notice of closing estate. The notice of closing estate filed by the independent executor must include signed receipts or other proof that all distributees have received a copy of the notice of closing estate.

(c) Effect of Filing Closing Report or Notice of Closing Estate.

      (1) The independent administration of an estate is considered closed 30 days after the date of the filing of a closing report or notice of closing estate unless an interested person files an objection with the court within that time. If an interested person files an objection within the 30-day period, the independent administration of the estate is closed when the objection has been disposed of or the court signs an order closing the estate

      (2) The closing of an independent administration by filing of a closing report or notice of closing estate terminates the power and authority of the independent executor, but shall not relieve the independent executor from liability for any mismanagement of the estate or from liability for any false statements contained in the report or notice.

      (3) When a closing report or notice of closing estate has been filed, persons dealing with properties of the estate, or with claims against the estate, shall deal directly with the distributees of the estate; and the acts of the distributees with respect to the properties or claims shall in all ways be valid and binding as regards the persons with whom they deal, notwithstanding any false statements made by the independent executor in the report or notice.

      (4) If the independent executor is required to give bond, the independent executor’s filing of the closing report and proof of delivery, if required, automatically releases the sureties on the bond from all liability for the future acts of the principal. The filing of a notice of closing estate does not release the sureties on the bond of an independent executor.

(d) Authority to Transfer Property of a Decedent After Filing the Closing Report or Notice of Closing Estate. An independent executor’s closing report or notice of closing estate shall constitute sufficient legal authority to all persons owing any money, having custody of any property, or acting as registrar or transfer agent or trustee of any evidence of interest, indebtedness, property, or right that belongs to the estate, for payment or transfer without additional administration to the distributees described in the will as entitled to receive the particular asset or who as heirs at law are entitled to receive the asset. The distributees described in the will as entitled to receive the particular asset or the heirs at law entitled to receive the asset may enforce their right to the payment or transfer by suit.

(e) Delivery Subject to Receipt or Proof of Delivery. An independent executor may not be required to deliver tangible or intangible personal property to a distributee unless the independent executor receives, at or before the time of delivery of the property, a signed receipt or other proof of delivery of the property to the distributee. An independent executor may not require a waiver or release from the distributee as a condition of delivery of property to a distributee.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1752, ch. 713, Sec. 21, eff. Aug. 27, 1979; Acts 1991, 72nd Leg., ch. 895, Sec. 11, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 642, Sec. 5, eff. Sept. 1, 1995. Amended by: Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 7(1), eff. September 1, 2007. Amended by Acts 2011, 82nd Leg., eff. September 1, 2011.

Sec. 152. Closing Independent Administration upon Application by Distributee.

(a) At any time after an estate has been fully administered and there is no further need for an independent administration of such estate, any distributee may file an application to close the administration; and, after citation upon the independent executor, and upon hearing, the court may enter an order:

      (1) requiring the independent executor to file a verified report meeting the requirements of Section 151(a) of this code;

      (2) closing the administration;

      (3) terminating the power of the independent executor to act as such; and

      (4) releasing the sureties on any bond the independent executor was required to give from all liability for the future acts of the principal.

(b) The order of the court closing the independent administration shall constitute sufficient legal authority to all persons owing any money, having custody of any property, or acting as registrar or transfer agent or trustee of any evidence of interest, indebtedness, property, or right that belongs to the estate, for payment or transfer without additional administration to the persons described in the will as entitled to receive the particular asset or who as heirs at law are entitled to receive the asset. The persons described in the will as entitled to receive the particular asset or the heirs at law entitled to receive the asset may enforce their right to the payment or transfer by suit.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1752, ch. 713, Sec. 22, eff. Aug. 27, 1979; Acts 1991, 72nd Leg., ch. 895, Sec. 12, eff. Sept. 1, 1991.

Sec. 153. Issuance of Letters. At any time before the authority of an independent executor has been terminated in the manner set forth in the preceding Sections, the clerk shall issue such number of letters testamentary as the independent executor shall request.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 154. Powers of an Administrator Who Succeeds an Independent Executor.

(a) Grant of Powers by Court. Whenever a person has died, or shall die, testate, owning property in Texas, and such person’s will has been or shall be admitted to probate by the proper court, and such probated will names an independent executor or executors, or trustees acting in the capacity of independent executors, to execute the terms and provisions of said will, and such will grants to such independent executor, or executors, or trustees acting in the capacity of independent executors, the power to raise or borrow money and to mortgage, and such independent executor, or executors, or trustees, have died or shall die, resign, fail to qualify, or be removed from office, leaving unexecuted parts or portions of the will of the testator, and an administrator with the will annexed is appointed by the court having jurisdiction of the estate, and an administrator’s bond is filed and approved by the court, then in all such cases, the court may, in addition to the powers conferred upon such administrator under other provisions of the laws of Texas, authorize, direct, and empower such administrator to do and perform the acts and deeds, clothed with the rights, powers, authorities, and privileges, and subject to the limitations, set forth in the subsequent portions of this Section.

(b) Power to Borrow Money and Mortgage or Pledge Property. The court, upon application, citation, and hearing, may, by its order, authorize, direct, and empower such administrator to raise or borrow such sums of money and incur such obligations and debts as the court shall, in its said order, direct, and to renew and extend same from time to time, as the court, upon application and order, shall provide; and, if authorized by the court’s order, to secure such loans, obligations, and debts, by pledge or mortgage upon property or assets of the estate, real, personal, or mixed, upon such terms and conditions, and for such duration of time, as the court shall deem to be to the best interest of the estate, and by its order shall prescribe; and all such loans, obligations, debts, pledges, and mortgages shall be valid and enforceable against the estate and against such administrator in his official capacity.

(c) Powers Limited to Those Granted by the Will. The court may order and authorize such administrator to have and exercise the powers and privileges set forth in the preceding Subsections hereof only to the extent that same are granted to or possessed by the independent executor, or executors, or trustees acting in the capacity of independent executors, under the terms of the probated will of such deceased person, and then only in such cases as it appears, at the hearing of the application, that at the time of the appointment of such administrator, there are outstanding and unpaid obligations and debts of the estate, or of the independent executor, or executors, or trustees, chargeable against the estate, or unpaid expenses of administration, or when the court appointing such administrator orders the business of such estate to be carried on and it becomes necessary, from time to time, under orders of the court, for such administrator to borrow money and incur obligations and indebtedness in order to protect and preserve the estate.

(d) Powers Other Than Those Relating to Borrowing Money and Mortgaging or Pledging Property. The court, in addition, may, upon application, citation, and hearing, order, authorize and empower such administrator to assume, exercise, and discharge, under the orders and directions of said court, made from time to time, all or such part of the rights, powers, and authorities vested in and delegated to, or possessed by, the independent executor, or executors, or trustees acting in the capacity of independent executors, under the terms of the will of such deceased person, as the court finds to be to the best interest of the estate and shall, from time to time, order and direct.

(e) Application for Grant of Powers. The granting to such administrator by the court of some, or all, of the powers and authorities set forth in this Section shall be upon application filed by such administrator with the county clerk, setting forth such facts as, in the judgment of the administrator, require the granting of the power or authority requested.

(f)  Citation. Upon the filing of such application, the clerk shall issue citation to all persons interested in the estate, stating the nature of the application, and requiring such persons to appear on the return day named in such citation and show cause why such application should not be granted, should they choose to do so. Such citation shall be served by posting.

(g) Hearing and Order. The court shall hear such application and evidence thereon, upon the return day named in the citation, or thereafter, and, if satisfied a necessity exists and that it would be to the best interest of the estate to grant said application in whole or in part, the court shall so order; otherwise, the court shall refuse said application.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 154A. Court-appointed Successor Independent Executor.

(a) If the will of a person who dies testate names an independent executor who, having qualified, fails for any reason to continue to serve, or is removed for cause by the court, and the will does not name a successor independent executor or if each successor executor named in the will fails for any reason to qualify as executor or indicates by affidavit filed with the application for an order continuing independent administration his inability or unwillingness to serve as successor independent executor, all of the distributees of the decedent as of the filing of the application for an order continuing independent administration may apply to the county court for the appointment of a qualified person, firm, or corporation to serve as successor independent executor. If the county court finds that continued administration of the estate is necessary, the county court shall enter an order continuing independent administration and appointing the person, firm, or corporation designated in the application as successor independent executor, unless the county court finds that it would not be in the best interest of the estate to do so. Such successor shall serve with all of the powers and privileges granted to his predecessor independent executor.

(b) If a distributee described in this section is an incapacitated person, the guardian of the person of the distributee may sign the application on behalf of the distributee. If the county court finds that either the continuing of independent administration or the appointment of the person, firm, or corporation designated in the application as successor independent executor would not be in the best interest of the incapacitated person, then, notwithstanding anything to the contrary in Subsection (a) of this section, the county court shall not enter an order continuing independent administration of the estate. If the distributee is an incapacitated person and has no guardian of the person, the court may appoint a guardian ad litem to make application on behalf of the incapacitated person if the county court considers such an appointment necessary to protect the interest of such distributee.

(c) If a trust is created in the decedent’s will, the person or class of persons first eligible to receive the income from the trust, determined as if the trust were to be in existence on the date of the filing of the application for an order continuing independent administration, shall, for the purposes of this section, be deemed to be the distributee or distributees on behalf of such trust, and any other trust or trusts coming into existence upon the termination of such trust, and are authorized to apply for an order continuing independent administration on behalf of the trust without the consent or agreement of the trustee or any other beneficiary of the trust, or the trustee or any beneficiary of any other trust which may come into existence upon the termination of such trust.

(d) If a life estate is created either in the decedent’s will or by law, and if a life tenant is living at the time of the filing of the application for an order continuing independent administration, then the life tenant or life tenants, determined as if the life estate were to commence on the date of the filing of the application for an order continuing independent administration, shall, for the purposes of this section, be deemed to the distributee or distributees on behalf of the entire estate created, and are authorized to apply for an order continuing independent administration on behalf of the estate without the consent or approval of any remainderman.

(e) If a decedent’s will contains a provision that a distributee must survive the decedent by a prescribed period of time in order to take under the decedent’s will, for the purposes of determining who shall be the distributee under this section, it shall be presumed that the distributees living at the time of the filing of the application for an order continuing independent administration of the decedent’s estate survived the decedent for the prescribed period.

(f)  In the case of all decedents, whether dying testate or intestate, for the purposes of determining who shall be the distributees under this section, it shall be presumed that no distributee living at the time the application for an order continuing independent administration of the decedent’s estate is filed shall subsequently disclaim any portion of such distributee’s interest in the decedent’s estate.

(g) If a distributee of a decedent’s estate should die, and if by virtue of such distributee’s death such distributee’s share of the decedent’s estate shall become payable to such distributee’s estate, then the deceased distributee’s personal representative may sign the application for an order continuing independent administration of the decedent’s estate under this section.

(h) If a successor independent executor is appointed pursuant to this section, then, unless the county court shall waive bond on application for waiver, the successor independent executor shall be required to enter into bond payable to and to be approved by the judge and his or her successors in a sum that is found by the judge to be adequate under all circumstances, or a bond with one surety in a sum that is found by the judge to be adequate under all circumstances, if the surety is an authorized corporate surety.

(I)  Absent proof of fraud or collusion on the part of a judge, the judge may not be held civilly liable for the commission of misdeeds or the omission of any required act of any person, firm, or corporation designated as a successor independent executor under this section. Section 36 of this code does not apply to an appointment of a successor independent executor under this section.

Added by Acts 1977, 65th Leg., p. 1066, ch. 390, Sec. 8, eff. Sept. 1, 1977. Amended by Acts 1979, 66th Leg., p. 1753, ch. 713, Sec. 23, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 846, Sec. 16, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1039, Sec. 11, eff. Sept. 1, 1995.

PART 5. ADMINISTRATION OF COMMUNITY PROPERTY

Sec. 155. No Necessity for Administration of Community Property. When a husband or wife dies intestate and the community property passes to the survivor, no administration thereon shall be necessary. Nothing in this part of this chapter prohibits the administration of community property under other provisions of this code relating to the administration of an estate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 980, ch. 173, Sec. 11, eff. Jan. 1, 1972. Amended by: Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 1, eff. September 1, 2007.

Sec. 156. Liability of Community Property for Debts. The community property subject to the sole or joint management, control, and disposition of a spouse during marriage continues to be subject to the liabilities of that spouse upon death. In addition, the interest that the deceased spouse owned in any other nonexempt community property passes to his or her heirs or devisees charged with the debts which were enforceable against such deceased spouse prior to his or her death. The surviving spouse or personal representative shall keep a separate, distinct account of all community debts allowed or paid in the administration and settlement of such estate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 980, ch. 173, Sec. 11, eff. Jan. 1, 1972. Amended by: Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 2, eff. September 1, 2007.

Sec. 160. Powers of Surviving Spouse When No Administration Is Pending.

(a) When no one has qualified as executor or administrator of the estate of a deceased spouse, the surviving spouse, whether the husband or wife, as the surviving partner of the marital partnership has power to sue and be sued for the recovery of community property; to sell, mortgage, lease, and otherwise dispose of community property for the purpose of paying community debts; to collect claims due to the community estate; and has such other powers as shall be necessary to preserve the community property, discharge community obligations, and wind up community affairs.

(b) If an affidavit stating that the affiant is the surviving spouse and that no one has qualified as executor or administrator of the estate of the deceased spouse is furnished to a person owing money to the community estate for current wages at the time of the death of the deceased spouse, the person making payment or delivering to the affiant the deceased spouse’s final paycheck for wages, including unpaid sick pay or vacation pay, if any, is released from liability to the same extent as if the payment or delivery was made to a personal representative of the deceased spouse. The person is not required to inquire into the truth of the affidavit. The affiant to whom the payment or delivery is made is answerable to any person having a prior right and is accountable to any personal representative who is appointed. The affiant is liable for any damage or loss to any person that arises from a payment or delivery made in reliance on the affidavit.

(c) This section does not affect the disposition of the property of the deceased spouse.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 846, Sec. 17, eff. Sept. 1, 1993. Amended by: Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 3, eff. September 1, 2007.

Sec. 168. Accounting by Survivor. The survivor shall keep a fair and full account and statement of all community debts and expenses paid by him, and of the disposition made of the community property; and, upon final partition of such estate, shall deliver to the heirs, devisees or legatees of the deceased spouse their interest in such estate, and the increase and profits of the same, after deducting therefrom the proportion of the community debts chargeable thereto, unavoidable losses, necessary and reasonable expenses, and a reasonable commission for the management of the same. The survivor may not be liable for losses sustained by the estate, except when the survivor has been guilty of gross negligence or bad faith.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 982, ch. 173, Sec. 13, eff. Jan. 1, 1972. Amended by: Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 4, eff. September 1, 2007.

Sec. 176. Remarriage of Surviving Spouse. The remarriage of a surviving spouse shall not terminate the surviving spouse’s powers as a surviving partner.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 39, ch. 24, Sec. 23, eff. Aug. 27, 1979. Amended by: Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 5, eff. September 1, 2007.

Sec. 177. Distribution of Powers among Personal Representatives and Surviving Spouse. When a personal representative of the estate of a deceased spouse has duly qualified, the personal representative is authorized to administer, not only the separate property of the deceased spouse, but also the community property which was by law under the management of the deceased spouse during the continuance of the marriage and all of the community property that was by law under the joint control of the spouses during the continuance of the marriage. The surviving spouse, as surviving partner of the marital partnership, is entitled to retain possession and control of all community property which was legally under the sole management of the surviving spouse during the continuance of the marriage and to exercise over that property all the powers elsewhere in this part of this code authorized to be exercised by the surviving spouse when there is no administration pending on the estate of the deceased spouse. The surviving spouse may by written instrument filed with the clerk waive any right to exercise powers as community survivor, and in such event the personal representative of the deceased spouse shall be authorized to administer upon the entire community estate.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 982, ch. 173, Sec. 13, eff. Jan. 1, 1972; Acts 2001, 77th Leg., ch. 10, Sec. 2, eff. Sept. 1, 2001. Amended by: Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 6, eff. September 1, 2007.

Chapter VII. Executors and Administrators

PART 1. APPOINTMENT AND ISSUANCE OF LETTERS

Sec. 178. When Letters Testamentary or of Administration Shall Be Granted.

(a) Letters Testamentary. When a will has been probated, the court shall, within twenty days thereafter, grant letters testamentary, if permitted by law, to the executor or executors appointed by such will, if any there be, or to such of them as are not disqualified, and are willing to accept the trust and qualify according to law.

(b) Letters of Administration. When a person shall die intestate, or where no executor is named in a will, or where the executor is dead or shall fail to accept and qualify within twenty days after the probate of the will, or shall fail for a period of thirty days after the death of the testator to present the will for probate and the court finds there was no good cause for not presenting the will for probate during that period, then administration of the estate of such intestate, or administration with the will annexed of the estate of such testator, shall be granted, should administration appear to be necessary. No administration of any estate shall be granted unless there exists a necessity therefor, such necessity to be determined by the court hearing the application. Such necessity shall be deemed to exist if two or more debts exist against the estate, or if or when it is desired to have the county court partition the estate among the distributees, or if the administration is necessary to receive or recover funds or other property due the estate, but mention of these three instances of necessity for administration shall not prevent the court from finding other instances of necessity upon proof before it.

(c) Failure to Issue Letters Within Prescribed Time. Failure of a court to issue letters testamentary within the twenty day period prescribed by this Section shall not affect the validity of any letters testamentary which are issued subsequent to such period, in accordance with law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 7.02, eff. September 1, 2007.

Sec. 179. Opposition to Grant of Letters of Administration. When application is made for letters of administration, any interested person may at any time before the application is granted, file the person’s opposition thereto in writing, and may apply for the grant of letters to the person or to any other person; and, upon the trial, the court shall grant letters to the person that may seem best entitled to them, having regard to applicable provisions of this Code, without further notice than that of the original application.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 7.03, eff. September 1, 2007.

Sec. 180. Effect of Finding That No Necessity for Administration Exists. When application is filed for letters of administration and the court finds that there exists no necessity for administration of the estate, the court shall recite in its order refusing the application that no necessity for administration exists. An order of the court containing such recital shall constitute sufficient legal authority to all persons owing any money, having custody of any property, or acting as registrar or transfer agent of any evidence of interest, indebtedness, property, or right belonging to the estate, and to persons purchasing or otherwise dealing with the estate, for payment or transfer to the distributees of the decedent, and such distributees shall be entitled to enforce their right to such payment or transfer by suit.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 181. Orders Granting Letters Testamentary or of Administration. When letters testamentary or of administration are granted, the court shall make an order to that effect, which shall specify:

(a) The name of the testator or intestate; and

(b) The name of the person to whom the grant of letters is made; and

(c) If bond is required, the amount thereof; and

(d) If any interested person shall apply to the court for the appointment of an appraiser or appraisers, or if the court deems an appraisal necessary, the name of not less than one nor more than three disinterested persons appointed to appraise the estate and return such appraisement to the court; and

(e) That the clerk shall issue letters in accordance with said order when the person to whom said letters are granted shall have qualified according to law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 1815, ch. 697, Sec. 1, eff. Aug. 28, 1967; Acts 1969, 61st Leg., p. 1922, ch. 641, Sec. 10, eff. June 12, 1969.

Sec. 182. When Clerk Shall Issue Letters. Whenever an executor or administrator has been qualified in the manner required by law, the clerk of the court granting the letters testamentary or of administration shall forthwith issue and deliver the letters to such executor or administrator. When two or more persons qualify as executors or administrators, letters shall be issued to each of them so qualifying.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 183. What Constitutes Letters. Letters testamentary or of administration shall be a certificate of the clerk of the court granting the same, attested by the seal of such court, and stating that the executor or administrator, as the case may be, has duly qualified as such as the law requires, the date of such qualification, and the name of the deceased.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 186. Letters or Certificate Made Evidence. Letters testamentary or of administration or a certificate of the clerk of the court which granted the same, under the seal of such court, that said letters have been issued, shall be sufficient evidence of the appointment and qualification of the personal representative of an estate and of the date of qualification.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 28, eff. Sept. 1, 1993.

Sec. 187. Issuance of Other Letters. When letters have been destroyed or lost, the clerk shall issue other letters in their stead, which shall have the same force and effect as the original letters. The clerk shall also issue any number of letters as and when requested by the person or persons who hold such letters.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 188. Rights of Third Persons Dealing with Executors or Administrators. When an executor or administrator, legally qualified as such, has performed any acts as such executor or administrator in conformity with his authority and the law, such acts shall continue to be valid to all intents and purposes, so far as regards the rights of innocent purchasers of any of the property of the estate from such executor or administrator, for a valuable consideration, in good faith, and without notice of any illegality in the title to the same, notwithstanding such acts or the authority under which they were performed may afterward be set aside, annulled, and declared invalid.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

PART 2. OATHS AND BONDS OF PERSONAL REPRESENTATIVES

Sec. 189. How Executors and Administrators Shall Qualify. A personal representative shall be deemed to have duly qualified when he shall have taken and filed his oath and made the required bond, had the same approved by the judge, and filed it with the clerk. In case of an executor who is not required to make bond, he shall be deemed to have duly qualified when he shall have taken and filed his oath required by law.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 29, eff. Sept. 1, 1993.

Sec. 190. Oaths of Executors and Administrators.

(a) Executor, or Administrator With Will Annexed. Before the issuance of letters testamentary or of administration with the will annexed, the person named as executor, or appointed administrator with the will annexed, shall take and subscribe an oath in form substantially as follows: “I do solemnly swear that the writing which has been offered for probate is the last will of ______, so far as I know or believe, and that I will well and truly perform all the duties of executor of said will (or of administrator with the will annexed, as the case may be) of the estate of said ______.”

(b) Administrator. Before the issuance of letters of administration, the person appointed administrator shall take and subscribe an oath in form substantially as follows: “I do solemnly swear that ______, deceased, died without leaving any lawful will (or that the named executor in any such will is dead or has failed to offer the same for probate, or to accept and qualify as executor, within the time required, as the case may be), so far as I know or believe, and that I will well and truly perform all the duties of administrator of the estate of said deceased.”

(c) Temporary Administrator. Before the issuance of temporary letters of administration, the person appointed temporary administrator shall take and subscribe an oath in form substantially as follows: “I do solemnly swear that I will well and truly perform the duties of temporary administrator of the estate of ______, deceased, in accordance with the law, and with the order of the court appointing me such administrator.”

(d) Filing and Recording of Oaths. All such oaths may be taken before any officer authorized to administer oaths, and shall be filed with the clerk of the court granting the letters, and shall be recorded in the judge’s probate docket.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1170, Sec. 7.04, eff. September 1, 2007. Amended by Acts 2009, 81st Leg., Ch. 602, §8, eff. June 19, 2009.

Sec. 192. Time for Taking Oath and Giving Bond. The oath of a personal representative may be taken and subscribed, or his bond may be given and approved, at any time before the expiration of twenty days after the date of the order granting letters testamentary or of administration, as the case may be, or before such letters shall have been revoked for a failure to qualify within the time allowed. All such oaths may be taken before any person authorized to administer oaths under the laws of this State.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 30, eff. Sept. 1, 1993.

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 and qualified to act as a depository in this State 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; Acts 1993, 73rd Leg., ch. 957, Sec. 31, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 344, Sec. 6.003, eff; Sept; 1, 1999.

Sec. 195. When No Bond Required.

(a) By Will. Whenever any will probated in a Texas court directs that no bond or security be required of the person or persons named as executors, the court finding that such person or persons are qualified, letters testamentary shall be issued to the persons so named, without requirement of bond.

(b) Corporate Fiduciary Exempted From Bond. If a personal representative is a corporate fiduciary, as said term is defined in this Code, no bond shall be required.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1039, Sec. 12, eff. Sept. 1, 1995.

Sec. 196. Form of Bond. The following form, or the same in substance, may be used for the bonds of personal representatives:

“The State of Texas

“County of ______

“Know all men by these presents that we, A. B., as principal, and E. F., as sureties, are held and firmly bound unto the county (or probate) judge of the County of ______, and his successors in office, in the sum of ______ Dollars; conditioned that the above bound A. B., who has been appointed executor of the last will and testament of J. C., deceased (or has been appointed by the said judge of ______ County, administrator with the will annexed of the estate of J. C., deceased, or has been appointed by the said judge of ______ County, administrator of the estate of J. C., deceased, or has been appointed by the said judge of ______ County, temporary administrator of the estate of J. C., deceased, as the case may be), shall well and truly perform all of the duties required of him by law under said appointment.”

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 32, eff. Sept. 1, 1993.

Sec. 197. Bonds to Be Filed. All bonds required by preceding provisions of this Code shall be subscribed by both principals and sureties, and, when approved by the court, be filed with the clerk.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 198. Bonds of Joint Representatives. When two or more persons are appointed representatives of the same estate or person and are required by the provisions of this Code or by the court to give a bond, the court may require either a separate bond from each or one joint bond from all of them.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 199. Bonds of Married Persons. When a married person is appointed personal representative, the person may, jointly with, or without, his or her spouse, execute such bond as the law requires; and such bond shall bind the person’s separate estate, but shall bind his or her spouse only if signed by the spouse.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 39, ch. 24, Sec. 24, eff. Aug. 27, 1979.

Sec. 200. Bond of Married Person under Eighteen Years of Age. When a person under eighteen years of age who is or has been married shall accept and qualify as executor or administrator, any bond required to be executed by him shall be as valid and binding for all purposes as if he were of lawful age.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 105, ch. 45, Sec. 3, eff. Sept. 1, 1975; Acts 1993, 73rd Leg., ch. 957, Sec. 33, eff. Sept. 1, 1993.

Sec. 201. (A) Affidavit of Personal Surety; (B) Lien on Specific Property, When Required; (c) Subordination of Lien Authorized.

(a) Affidavit of Personal Surety. Before the judge may consider a bond with personal sureties, each person offered as surety shall execute an affidavit stating the amount of his assets, reachable by creditors, of a value over and above his liabilities, the total of the worth of such sureties to be equal to at least double the amount of the bond, and such affidavit shall be presented to the judge for his consideration and, if approved, shall be attached to and form part of the bond.

(b) Lien on Specific Property, When Required. If the judge finds that the estimated value of personal property of the estate which cannot be deposited or held in safekeeping as hereinabove provided is such that personal sureties cannot be accepted without the creation of a specific lien on real property of such sureties, he shall enter an order requiring that each surety designate real property owned by him within this State subject to execution, of a value over and above all liens and unpaid taxes, equal at least to the amount of the bond, giving an adequate legal description of such property, all of which shall be incorporated in an affidavit by the surety, approved by the judge, and be attached to and form part of the bond. If compliance with such order is not had, the judge may in his discretion require that the bond be signed by an authorized corporate surety, or by such corporate surety and two (2) or more personal sureties.

(c) Subordination of Lien Authorized. If a personal surety who has been required to create a lien on specific real estate desires to lease such property for mineral development, he may file his written application in the court in which the proceedings are pending, requesting subordination of such lien to the proposed lease, and the judge of such court may, in his discretion, enter an order granting such application. A certified copy of such order, filed and recorded in the deed records of the proper county, shall be sufficient to subordinate such lien to the rights of a lessee, in the proposed lease.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 6(c).

Sec. 202. Bond as Lien on Real Property of Surety. When a personal surety has been required by the court to create a lien on specific real property as a condition of his acceptance as surety on a bond, a lien on the real property of the surety in this State which is described in the affidavit of the surety, and only upon such property, shall arise as security for the performance of the obligation of the bond. The clerk of the court shall, before letters are issued to the representative, cause to be mailed to the office of the county clerk of each county in which is located any real property as set forth in the affidavit of the surety, a statement signed by the clerk, giving a sufficient description of such real property, the name of the principal and sureties, the amount of the bond, and the name of the estate and the court in which the bond is given. The county clerk to whom such statement is sent shall record the same in the deed records of the county. All such recorded statements shall be duly indexed in such manner that the existence and character of the liens may conveniently be determined, and such recording and indexing of such statement shall constitute and be constructive notice to all persons of the existence of such lien on such real property situated in such county, effective as of date of such indexing.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, Sec. 6(d).

Sec. 203. When New Bond May Be Required. A personal representative may be required to give a new bond in the following cases:

(a) When the sureties upon the bond, or any one of them, shall die, remove beyond the limits of the state, or become insolvent; or

(b) When, in the opinion of the court, the sureties upon any such bond are insufficient; or

(c) When, in the opinion of the court, any such bond is defective; or

(d) When the amount of any such bond is insufficient; or

(e) When the sureties, or any one of them, petitions the court to be discharged from future liability upon such bond; or

(f)  When the bond and the record thereof have been lost or destroyed.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 204. Demand for New Bond by Interested Person. Any person interested in an estate may, upon application in writing filed with the county clerk of the county where the probate proceedings are pending, alleging that the bond of the personal representative is insufficient or defective, or has been, together with the record thereof, lost or destroyed, cause such representative to be cited to appear and show cause why he should not give a new bond.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 205. Judge to Require New Bond. When it shall be known to him that any such bond is in any respect insufficient or that it has, together with the record thereof, been lost or destroyed, the judge shall:

(1) without delay and without notice enter an order requiring the representative to give a new bond; or

(2) without delay cause the representative to be cited to show cause why he should not give a new bond.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 683, Sec. 1, eff. September 1, 2007.

Sec. 206. Order Requiring New Bond.

(a) The order entered under Section 205(1) of this code must state the reasons for requiring a new bond, the amount of the new bond, and the time within which the new bond must be given, which may not be earlier than the 10th day after the date of the order. If the personal representative opposes the order, the personal representative may demand a hearing on the order. The hearing must be held before the expiration of the time within which the new bond must be given.

(b) Upon the return of a citation ordering a personal representative to show cause why he should not give a new bond, the judge shall, on the day named therein for the hearing of the matter, proceed to inquire into the sufficiency of the reasons for requiring a new bond; and, if satisfied that a new bond should be required, he shall enter an order to that effect, stating in such order the amount of such new bond, and the time within which it shall be given, which shall not be later than twenty days from the date of such order.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by: Acts 2007, 80th Leg., R.S., Ch. 683, Sec. 1, eff. September 1, 2007.

Sec. 207. Order Suspends Powers of Personal Representative. When a personal representative is required to give a new bond, the order requiring such bond shall have the effect to suspend his powers, and he shall not thereafter pay out any money of said estate or do any other official act, except to preserve the property of the estate, until such new bond has been given and approved.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 208. Decrease in Amount of Bond. A personal representative required to give bond may at any time file with the clerk a written application to the court to have his bond reduced. Forthwith the clerk shall issue and cause to be posted notice to all persons interested and to the surety or sureties on the bond, apprising them of the fact and nature of the application and of the time when the judge will hear the application. The judge, in his discretion, upon the submission of proof that a smaller bond than the one in effect will be adequate to meet the requirements of the law and protect the estate, and upon the approval of an accounting filed at the time of the application, may permit the filing of a new bond in a reduced amount.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 209. Discharge of Sureties upon Execution of New Bond. When a new bond has been given and approved, an order shall be entered discharging the sureties upon the former bond from all liability for the future acts of the principal.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 210. Release of Sureties Before Estate Fully Administered. The sureties upon the bond of a personal representative, or any one of them, may at any time file with the clerk a petition to the court in which the proceedings are pending, praying that such representative be required to give a new bond and that petitioners be discharged from all liability for the future acts of such representative; whereupon, such representative shall be cited to appear and give a new bond.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 211. Release of Lien Before Estate Fully Administered. If a personal surety who has given a lien on specific real property as security applies to the court to have the lien released, the court shall order the release requested, if the court is satisfied that the bond is sufficient without the lien on such property, or if sufficient other real or personal property of the surety is substituted on the same terms and conditions required for the lien which is to be released. If such personal surety who requests the release of the lien does not offer a lien on other real or personal property, and if the court is not satisfied of the sufficiency of the bond without the substitution of other property, the court shall order the personal representative to appear and give a new bond.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 212. Release of Recorded Lien on Surety’s Property. A certified copy of the court’s order describing the property, and releasing the lien, filed with the county clerk of the county where the property is located, and recorded in the deed records, shall have the effect of cancelling the lien on such property.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 213. Revocation of Letters for Failure to Give Bond. If at any time a personal representative fails to give bond as required by the court, within the time fixed by this Code, another person may be appointed in his stead.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.

Sec. 214. Executor Without Bond Required to Give Bond. Where no bond is required of an executor appointed by will, any person having a debt, claim, or demand against the estate, to the justice of which oath has been made by himself, his agent, or attorney, or any other person interested in such estate, whether in person or as the representative of another, may file a complaint in writing in the court where such will is probated, and the court shall thereupon cite such executor to appear and show cause why he should not be required to give bond.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 34, eff. Sept. 1, 1993.

Sec. 215. Order Requiring Bond. Upon hearing such complaint, if it appears to the court that such executor is wasting, mismanaging, or misapplying such estate, and that thereby a creditor may probably lose his debt, or that thereby some person’s interest in the estate may be diminished or lost, the court shall enter an order requiring such executor to give bond within ten days from the date of such order.

Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, Sec. 34, eff. Sept. 1, 1993.