Enacted-Effective 9/1/11: SB 1198 -- REPTL decedents' estates bill

Caption: Relating to decedents' estates.
Author: Rodriguez
Bill History
Bill Text

Relevance:  This omnibus bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It makes multiple changes to the Texas Probate Code affecting the estates of decedents. It also makes parallel changes to the new Estates Code. Changes include:

• An option requiring only one signature of the testator and the witnesses on the will and self-proving affidavit (the old two-signature method still would be permitted). (Section 59)

• Changes to the independent administration provisions of the Probate Code in anticipation of enactment of the new Estates Code, including addressing technical issues like the power of sale and creditor claims. (Sections 145 -- 151)

• In independent administrations where there are no unpaid creditors, permitting the independent executor to deliver the inventory to the beneficiaries while filing an affidavit, not the inventory, with the court. (Section 250)

• Confirming that a right of survivorship will not be presumed from joint ownership or joint tenancy of multi-party accounts and community property, legislatively overruling part of Holmes v. Beatty, saying "a survivorship agreement will not be inferred from the mere fact that the account is a joint account or that the account is designated JT TEN, Joint Tenancy, joint or other similar abbreviation." (Sections 439 and 452)

See "REPTL decedents' estates bill is worth a closer look" on texasprobate.com.

See "REPTL bill tweaks independent administration" on texasprobate.com. 

Enacted-Effective 9/1/11: SB 1197 -- REPTL trust bill

Caption: Relating to trusts.
Author: Rodriguez
Bill History
Bill Text

Relevance: This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas and makes several minor or technical changes to the Texas Trust Code.  It:

• Contains a special extension of the disclaimer deadline to match the extension in the 2010 tax law. (Section 112.010)

• Makes a slight change in the forfeiture (in terrorem) statute -- "just cause" must have existed for bringing the action, not "probable cause." (Section 112.038)

• Allows waiver of notice of nonjudicial divisions and combinations of trusts. (Section 112.057)

• Makes clear that a county court at law exercising the jurisdiction over a trust given it by Section 4B of the Probate Code has trust jurisdiction. (Section 115.001)

• Makes venue in a trust case proper in a court in which an estate is pending. (Section 115.002)

• Removes a beneficiary whose interest has been distributed, extinguished, terminated or paid from the list of necessary parties to trust litigation. (Section 115.011)

• Makes a couple of technical changes to the Texas Uniform Principal and Income Act (Sections 116.005 and 116.205)

See "REPTL bills would make changes to trusts, guardianships and powers of attorney" on texasprobate.com. 

x-Did Not Pass: SB 1192 -- REPTL Power of Attorney Bill

Caption: Relating to the creation, administration, and interpretation of powers of attorney, including statutory powers of attorney.
Author: Rodriguez
Bill History
Bill Text

Relevance:  This bill is supported by the Real Estate, Probate and Trust Law Section of the State Bar of Texas. It is the "Durable Power of Attorney Act," which rewrites Texas law regarding durable powers of attorney. Most of these changes are based on the new Uniform Power of Attorney Act, which was adopted by the National Conference of Commissioners on Uniform State Laws in 2006. It changes the statutory durable power of attorney form significantly. The changes are too numerous to mention here, but here are a few highlights:

• Powers of attorney are presumed to be durable unless they expressly terminate on disability.

• The act lists the persons who have standing to bring an action to construe a power of attorney, review an agent's conduct or grant appropriate relief.

• The point at which an agent accepts appointment is defined.

• The act provides protections for persons accepting powers of attorney and consequences for persons who don't accept a power of attorney.

• Agents are permitted to do the following only if the principal specifically authorizes these actions:

  • Create, amend, revoke, or terminate an inter vivos trust.

  • Make a gift.

  • Create or change rights of survivorship.

  • Create or change a beneficiary designation.

  • Waive the principal's right to be a beneficiary of a joint and survivor annuity.

• There's a totally new statutory durable power of attorney form, which includes a disclosure statement and a statement of the agent's duties.

• There's a new form for an agent's certification as to the validity of a power of attorney and the agent's authority.

This is a significant piece of legislation that will change power of attorney practice if it is enacted.

See "REPTL bills would make changes to trusts, guardianships and powers of attorney" on texasprobate.com.