CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION
PROBATE CODE
CHAPTER VI. SPECIAL TYPES OF ADMINISTRATION
PART 1. TEMPORARY ADMINISTRATION IN THE INTEREST OF ESTATES OF
DEPENDENTS
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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 3. SMALL ESTATES
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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 and minor children of the decedent are entitled
as a family allowance, there may be filed by or on behalf of the
surviving spouse or minor 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 and minor 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.
Text of article effective until January 01, 2014
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 and minor
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 and minor children.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
Sec. 143. SUMMARY PROCEEDINGS FOR SMALL ESTATES AFTER PERSONAL
REPRESENTATIVE APPOINTED. Whenever, after 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 and minor 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 his 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.
PART 4. INDEPENDENT ADMINISTRATION
Text of article effective until January 01, 2014
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) In no case shall any independent administrator be appointed
by any court to serve in any intestate administration until those
parties seeking the appointment of said independent administrator
offer clear and convincing evidence to the court that they
constitute all of the said 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,
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.
(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.
(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.
(r) 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.
Text of article effective until January 01, 2014
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.
(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, 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.
If the election is not made, the claim is 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.
(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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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, an inventory of the property of the estate and list of
claims that have come to the independent executor's knowledge;
(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; or
(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.
(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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
Sec. 151. CLOSING INDEPENDENT ADMINISTRATION BY AFFIDAVIT. (a)
Filing of Affidavit. 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:
(1) a closing report verified by affidavit that shows:
(i) The property of the estate which came into the hands of the
independent executor;
(ii) The debts that have been paid;
(iii) The debts, if any, still owing by the estate;
(iv) The property of the estate, if any, remaining on hand after
payment of debts; and
(v) 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) 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) Effect of Filing the Affidavit. (1) The filing of such an
affidavit and proof of delivery, if required, shall terminate the
independent administration and 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
affidavit. When such an affidavit 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 such distributees with respect to such 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 such affidavit.
(2) If the independent executor is required to give bond, the
independent executor's filing of the affidavit and proof of
delivery, if required, automatically releases the sureties on the
bond from all liability for the future acts of the principal.
(c) Authority to Transfer Property of a Decedent After Filing the
Affidavit. An independent executor's affidavit 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.
(d) 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 shall receive, 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 shall not require a waiver or release from the
distributee as a condition of delivery of property to a
distributee.
(e) Repealed by Acts 2007, 80th Leg., R.S., Ch. 301, Sec. 7(1),
eff. September 1, 2007.
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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.
Text of article effective until January 01, 2014
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