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TEXAS PROBATE CODE WITH COMMENTARY FINAL EDITION ≈ Gerry W. Beyer Governor Preston E. Smith Regents Professor of Law Texas Tech University School of Law Revised August 19, 2013 PREFACE Texas Probate Code – Final Edition is the version of the Probate Code that ceased to be effective on January 1, 2014 and contains the changes made by the 2013 Legislature. I have included commentary entitled Statutes in Context to many sections. These annotations provide background information, explanations, and citations to key cases which should assist you in identifying the significance of the statutes and how they operate. Most changes made by the 2013 Texas Legislature are shown in red-lined format to make the changes easy for the reader to locate. Despite my best efforts and those of the publisher, errors may have crept into the text or the Statutes in Context. In addition, new cases and legislation make important changes to the law. You may access a list of updates to this work at http://www.ProfessorBeyer.com. Finally, I would like to express my appreciation for the tedious work of Ms. Michele Thaetig, Senior Business Assistant, Texas Tech University School of Law, for her excellent work on this volume. Good luck in your course and in your legal career. GERRY W. BEYER Texas Tech University School of Law August 2013 i PROBATE CODE deemed a part of this Code with respect to such right. Chapter I. General Provisions 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 Statutes in Context notice is issued and served in compliance with existing § 1 statutes prior to the taking effect of this Code, the party Although called a “Code,” the Probate Code is upon whom such citation or other process has been not a true “code” because it was enacted in 1955 served shall have the time provided for under such which was before the 1963 Legislature began the previously existing statutes in which to comply process of codifying Texas law into 27 codes. The therewith. 2009 Legislature began the process of codifying (c) Subdivisions Have No Legal Effect. The the current Probate Code into a “real” code, the division of this Code into Chapters, Parts, Sections, Estates Code. Subsections, and Paragraphs is solely for convenience The portion of the Estates Code passed by the and shall have no legal effect. 2009 Legislature focuses on intestacy, wills, and (d) Severability. If any provision of this Code, or estate administration. The guardianship and the application thereof to any person or circumstance, is durable power of attorney provisions were added held invalid, such invalidity shall not affect other in 2011. The 2011 Legislature also made changes provisions or applications of the Code which can be to the previously enacted portions of the Estates given effect without the invalid provision or Code to be consistent with Probate Code application, and to this end the provisions of this Code amendments. The 2013 Legislature will have the are declared to be severable, and the Legislature hereby opportunity to make certain everything fits together states that it would have enacted such portions of the nicely and that any substantive changes to the Code which can lawfully be given effect regardless of Probate Code are properly integrated into the the possible invalidity of other provisions of the Code. Estates Code. (e) Nature of Proceeding. The administration of the estate of a decedent, from the filing of the The entire Estates Code is slated to become application for probate and administration, or for effective on January 1, 2014. administration, until the decree of final distribution and the discharge of the last personal representative, shall be § 1. Short Title considered as one proceeding for purposes of This Act shall be known, and may be cited, as the jurisdiction. The entire proceeding is a proceeding in “Texas Probate Code.” rem. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 2, eff. Sept. § 2. Effective Date and Application 1, 1993. Transferred to Estates Code by Acts 2009, 81st (a) Effective Date. This Code shall take effect and Leg., ch. 680, § 2, eff. Jan. 1, 2014 and amended to st be in force on and after January 1, 1956. The procedure retain only existing subsection (e) by Acts 2009, 81 herein prescribed shall govern all probate proceedings Leg., ch. 680, § 6, eff. Jan. 1, 2014. Subsection (e) in county and probate courts brought after the effective transferred to Estates Code § 32.001(d) by Acts 2013, rd date of this Act, and also all further procedure in 83 Leg., ch. 1136, § 2, eff. Jan. 1, 2014. 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 Statutes in Context particular proceedings or parts thereof would not be § 3 feasible or would work injustice, in which event the The definitions in § 3 apply to the entire former procedure shall apply. Probate Code except as otherwise provided by (b) Rights Not Affected. No act done in any Chapter XIII which governs guardianships. proceeding commenced before this Code takes effect, Some terms are defined contrary to their and no accrued right, shall be impaired by the traditional meanings. For example, the term provisions of this Code. When a right is acquired, “devise,” which usually refers to a gift of real extinguished, or barred upon the expiration of a property in a will, is defined to encompass gifts of prescribed period of time which has commenced to run both real and personal property in subsection (h). by the provision of any statute in force before this Code Likewise, “legacy,” which normally refers to a gift takes effect, such provision shall remain in force and be of money (personal property) in a will, is deemed 1 PROBATE CODE to include gifts of real property as well by guarantor or surety in or upon any bond required to be subsection (s). given under the laws of this state. “Heirs” include anyone who is entitled to (e) “County Court” and “Probate Court” are property under intestate succession under synonymous terms and denote county courts in the subsection (o). The surviving spouse is considered exercise of their probate jurisdiction, courts created by an heir even though at common law, the surviving statute and authorized to exercise original probate spouse was not an heir (not a blood relative). A jurisdiction, and district courts exercising probate person who takes under a will is not properly jurisdiction in contested matters. called an heir. (f) “County Judge,” “Probate Judge,” and “Judge” denote the presiding judge of any court having original The term “will” is defined in subsection (ff) to jurisdiction over probate proceedings, whether it be a include a variety of testamentary instruments county court in the exercise of its probate jurisdiction, a including codicils and instruments which do not court created by statute and authorized to exercise actually make at-death distributions of property probate jurisdiction, or a district court exercising such as documents which merely appoint an probate jurisdiction in contested matters. executor or guardian, revoke another will, or direct (g) “Court” denotes and includes both a county how property may not be distributed. court in the exercise of its probate jurisdiction, a court Courts will sometimes ignore the plain created by statute and authorized to exercise original language of the definitions. For example, in Heien probate jurisdiction, or a district court exercising v. Crabtree, 369 S.W.2d 28 (Tex. 1963), the Texas original probate jurisdiction in contested matters. Supreme Court refused to treat a child who was (h) “Devise,” when used as a noun, includes a adopted by estoppel as a “child” under subsection testamentary disposition of real or personal property, or (b) despite the language of the definition stating of both. When used as a verb, “devise” means to that the term includes a child adopted “by acts of dispose of real or personal property, or of both, by will. estoppel.” (i) “Devisee” includes legatee. (j) “Distributee” denotes a person entitled to the The definitions apply to these terms as used in estate of a decedent under a lawful will, or under the the Probate Code. The definitions do not statutes of descent and distribution. necessarily apply when they are used in a will or (k) “Docket” means the probate docket. other estate planning document. (l) “Estate” denotes the real and personal property of a decedent, both as such property originally existed § 3. Definitions and Use of Terms and as from time to time changed in form by sale, Except as otherwise provided by Chapter XIII of reinvestment, or otherwise, and as augmented by any this Code, when used in this Code, unless otherwise accretions and additions thereto (including any property apparent from the context: to be distributed to the representative of the decedent by (a) “Authorized corporate surety” means a domestic the trustee of a trust which terminates upon the or foreign corporation authorized to do business in the decedent’s death) and substitutions therefor, and as State of Texas for the purpose of issuing surety, diminished by any decreases therein and distributions guaranty or indemnity bonds guaranteeing the fidelity therefrom. of executors and administrators. (m) “Exempt property” refers to that property of a (b) “Child” includes an adopted child, whether decedent’s estate which is exempt from execution or adopted by any existing or former statutory procedure forced sale by the Constitution or laws of this State, and or by acts of estoppel, but, unless expressly so stated to the allowance in lieu thereof.
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