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  H.B. No. 391
 
 
 
 
AN ACT
  relating to the estates of decedents.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
  ARTICLE 1. DEFINITIONS AND USE OF TERMS
         SECTION 1.01.  Section 3(r), Texas Probate Code, is amended
  to read as follows:
               (r)  "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 [or incompetent ward].
         SECTION 1.02.  The changes in law made by this article apply
  to a proceeding that is pending or commenced on or after the
  effective date of this article.
  ARTICLE 2. VENUE FOR DECEDENTS' ESTATES
  AND DETERMINATION OF HEIRSHIPS
         SECTION 2.01.  Sections 8(a), (b), (c), and (e), Texas
  Probate Code, are amended to read as follows:
         (a)  Concurrent Venue. When two or more courts have
  concurrent venue of an estate or a proceeding to declare heirship
  under Section 48(a) of this code, the court in which the application
  for a proceeding in probate or determination of heirship
  [proceedings thereon] is first filed shall have and retain
  jurisdiction of the estate or heirship proceeding, as appropriate,
  to the exclusion of the other court or courts. The proceeding
  [proceedings] 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 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)  Proceedings in More Than One County. If a proceeding in
  [proceedings for] probate or to declare heirship under Section
  48(a) of this code is [are] commenced in more than one county, the
  proceeding [they] shall be stayed except in the county where first
  commenced until final determination of venue 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 [proceedings] shall thereupon be
  had in the proper county in the same manner as if the proceeding
  [proceedings] had originally been instituted therein.
         (c)  Transfer of Proceeding.
               (1)  Transfer for Want of Venue. If it appears to the
  court at any time before the final decree 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
  minutes theretofore made, and the probate of the will,
  determination of heirship, or administration of the estate 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.
               (2)  Transfer for Convenience of the Estate. If it
  appears to the court at any time before the estate is closed or, if
  there is no administration of the estate, when the proceeding in
  probate or to declare heirship 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.
         (e)  Jurisdiction to Determine Venue. Any court in which
  there has been filed an application for a proceeding [proceedings]
  in probate or determination of heirship shall have full
  jurisdiction to determine the venue of the [such] proceeding in
  probate or heirship proceeding, and of any proceeding relating
  thereto, and its determination shall not be subject to collateral
  attack.
         SECTION 2.02.  Section 48(a), Texas Probate Code, is amended
  to read as follows:
         (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 his estate; 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 such proceedings were last pending, or in the event
  no will of such decedent has been admitted to probate in this State,
  and no administration has been granted in this State upon the estate
  of such decedent, then 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 [any of the real property
  belonging to such estate is situated, or if there is no such real
  estate, then of the county in which any personal property belonging
  to such estate is found], 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, and proceedings
  therefor shall be known as proceedings to declare heirship.
         SECTION 2.03.  The changes in law made by this article apply
  only to a proceeding commenced on or after the effective date of
  this article. A proceeding commenced before the effective date of
  this article is governed by the law applicable to the proceeding
  immediately before the effective date of this article, and that law
  is continued in effect for that purpose.
  ARTICLE 3. DISCLAIMERS
         SECTION 3.01.  Section 37A, Texas Probate Code, is amended
  to read as follows:  
         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 [herein] 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 [hereof] 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 [The following shall apply to such disclaimers:
         [(a)  Written Memorandum] of Disclaimer [and Filing
  Thereof]. 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
  acknowledgements of conveyances of real estate.
         (h)  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 first
  anniversary of the date [nine months after] the beneficiary
  receives the notice required by Section 128A of this code, or the
  expiration of the six-month period following the date the personal
  representative files the inventory, appraisement, and list of
  claims due or owing to the estate, whichever occurs later. 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) [(b)]  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 first
  anniversary of the date [nine months after] the beneficiary
  receives the notice required by Section 128A of this code, or the
  expiration of the six-month period following the date the personal
  representative files the inventory, appraisement, and list of
  claims due or owing to the estate, whichever occurs later.
         (j) [(c)]  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) [(d)]  Irrevocability of Disclaimer. Any disclaimer
  filed and served under this section shall be irrevocable.
         (l) [(e)]  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) [(f)]  Partial Disclaimer by Spouse. Without limiting
  Subsection (l) [(e)] 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) [(g)]  Disclaimer After Acceptance. No disclaimer shall
  be effective after the acceptance of the property by the
  beneficiary. For the purpose of this subsection [section],
  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) [(h)]  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.
         SECTION 3.02.  Section 37B(b), Texas Probate Code, is
  amended to read as follows:
         (b)  The assignment may, at the request of the assignor, be
  filed as provided for the filing of a disclaimer under Section
  37A(h) [37A(a)] of this code. The filing requires the service of
  notice under Section 37A(i) [37A(b)] of this code.
  ARTICLE 4. DISSOLUTION OF MARRIAGE;
  EFFECT ON DECEDENTS' ESTATES
         SECTION 4.01.  Chapter II, Texas Probate Code, is amended by
  adding Section 47A to read as follows:
         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.
         SECTION 4.02.  Section 69, Texas Probate Code, is amended to
  read as follows:
         Sec. 69.  WILL PROVISIONS MADE BEFORE DISSOLUTION OF
  MARRIAGE [VOIDNESS ARISING FROM DIVORCE]. (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 [testator is divorced or the testator's marriage
  is annulled], all provisions in the will, including all fiduciary
  appointments [in favor of the testator's former spouse, or
  appointing such spouse to any fiduciary capacity under the will or
  with respect to the estate or person of the testator's children],
  shall [must] 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, [and shall be null and void and of no effect]
  unless the will expressly provides otherwise.
         (c) [(b)]  A person whose marriage to [who is divorced from]
  the decedent has been dissolved, whether by divorce, annulment, or
  a declaration that the marriage is void, [or whose marriage to the
  decedent has been annulled] 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.
         SECTION 4.03.  Section 6.111, Family Code, is amended to
  read as follows:
         Sec. 6.111.  DEATH OF PARTY TO VOIDABLE MARRIAGE. Except as
  provided by Section 47A, Texas Probate Code, a [A] marriage subject
  to annulment may not be challenged in a proceeding instituted after
  the death of either party to the marriage.
         SECTION 4.04.  (a) Except as provided by Subsection (b) of
  this section, the changes in law made by this article apply only to:
               (1)  the estate of a decedent who dies before the
  effective date of this article, if the probate or administration of
  the estate is pending on or commenced on or after the effective date
  of this article; and
               (2)  the estate of a decedent who dies on or after the
  effective date of this article.
         (b)  The changes in law made by this article to Section 69,
  Texas Probate Code, apply only to the estate of a decedent who dies
  on or after the effective date of this article. The estate of a
  decedent who dies before the effective date of this article is
  governed by the law in effect on the date of the decedent's death,
  and the former law is continued in effect for that purpose.
  ARTICLE 5. NUNCUPATIVE, OR ORAL, WILLS
         SECTION 5.01.  Section 82, Texas Probate Code, is amended to
  read as follows:
         Sec. 82.  CONTENTS OF APPLICATION FOR LETTERS OF
  ADMINISTRATION. An application for letters of administration when
  no will[, written or oral,] 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.
         SECTION 5.02.  Section 91, Texas Probate Code, is amended to
  read as follows:
         Sec. 91.  WHEN WILL NOT IN CUSTODY OF COURT[, OR ORAL].  If
  for any reason a written will is not in the custody of the court, [or
  if the will is oral,] 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.
         SECTION 5.03.  Section 128(b), Texas Probate Code, is
  amended to read as follows:
         (b)  Where Application Is for Probate of a Written Will Not
  Produced [or of a Nuncupative Will]. When the application is for the
  probate of a [nuncupative will, or 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.
         SECTION 5.04.  Section 128A(a), Texas Probate Code, is
  amended to read as follows:
         (a)  If the address of the entity can be ascertained with
  reasonable diligence, an applicant under Section 81 of this code
  shall give the state, a governmental agency of the state, or a
  charitable organization notice that the entity is named as a
  devisee in a written will or [,] a written will not produced[, or a
  nuncupative will] that has been admitted to probate.
         SECTION 5.05.  Sections 64, 65, 81(c), 86, and 89A(c), Texas
  Probate Code, are repealed.
         SECTION 5.06.  The changes in law made by this article apply
  only to a nuncupative, or oral, will made on or after the effective
  date of this article. A nuncupative, or oral, will made before the
  effective date of this article is governed by the law in effect on
  the date the will was made, and the former law is continued in
  effect for that purpose.
  ARTICLE 6. WRITTEN WILLS NOT PRODUCED
         SECTION 6.01.  Section 85, Texas Probate Code, is amended to
  read as follows:
         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 [it or] heard the will
  [it] read, or can identify a copy of the will.
         SECTION 6.02.  The changes in law made by this article apply
  only to:
               (1)  the estate of a decedent who dies before the
  effective date of this article, if the probate or administration of
  the estate is pending on or commenced on or after the effective date
  of this article; and
               (2)  the estate of a decedent who dies on or after the
  effective date of this article.
  ARTICLE 7. GRANTING OF ADMINISTRATION OF DECEDENTS' ESTATES
         SECTION 7.01.  Section 83(c), Texas Probate Code, is amended
  to read as follows:
         (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 [neglect or otherwise] fail or be unable to
  accept and qualify within twenty days after the date of the probate
  of the will, or shall fail [neglect] 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.
         SECTION 7.02.  Section 178(b), Texas Probate Code, is
  amended to read as follows:
         (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 [or neglect] to accept and qualify
  within twenty days after the probate of the will, or shall fail
  [neglect] 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 [two] instances of necessity for
  administration shall not prevent the court from finding other
  instances of necessity upon proof before it.
         SECTION 7.03.  Section 179, Texas Probate Code, is amended
  to read as follows:
         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 [his] opposition thereto in writing, and
  may apply for the grant of letters to the person [himself] 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.
         SECTION 7.04.  Section 190(b), Texas Probate Code, is
  amended to read as follows:
         (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
  [or neglected] 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."
         SECTION 7.05.  The changes in law made by this article apply
  to an application for the administration of an estate that is
  pending on or filed on or after the effective date of this article.
  ARTICLE 8. EMERGENCY INTERVENTION APPLICATIONS
         SECTION 8.01.  Section 111(a), Texas Probate Code, is
  amended to read as follows:
         (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, [social security number,] 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.
         SECTION 8.02.  Section 112, Texas Probate Code, is amended
  to read as follows:
         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, [social security number,] 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.
         SECTION 8.03.  The changes in law made by this article apply
  to an emergency intervention application filed before, on, or after
  the effective date of this article.
  ARTICLE 9. SALES OF ESTATE PROPERTY
         SECTION 9.01.  Section 344, Texas Probate Code, is amended
  to read as follows:
         Sec. 344.  CITATION [AND RETURN] ON APPLICATION. Upon the
  filing of such application and exhibit, the clerk shall issue a
  citation to all persons interested in the estate, describing the
  land or interest or part thereof sought to be sold, and informing
  [requiring] them of the right under Section 345 of this code to file
  an opposition to the sale during the period prescribed by the court
  [to appear at the time set by the court] as shown in the citation
  [and show cause why the sale should not be made], if they so elect.
  Service of such citation shall be by posting.
         SECTION 9.02.  Section 345, Texas Probate Code, is amended
  to read as follows:
         Sec. 345. OPPOSITION TO APPLICATION.  When an application
  for an order of sale is made, any person interested in the estate
  may, during the period provided in the citation issued under
  Section 344 of this code [before an order is made thereon], file his
  opposition to the sale, in writing, or may make application for the
  sale of other property of the estate.
         SECTION 9.03.  Part 5, Chapter VIII, Texas Probate Code, is
  amended by adding Section 345A to read as follows:
         Sec. 345A.  HEARING ON APPLICATION AND ANY OPPOSITION. (a)
  The clerk of a court in which an application for an order of sale is
  filed shall immediately call to the attention of the judge any
  opposition to the sale that is filed during the period provided in
  the citation issued under Section 344 of this code. The court shall
  hold a hearing on an application if an opposition to the sale is
  filed during the period provided in the citation.
         (b)  A hearing on an application for an order of sale is not
  required under this section if no opposition to the application is
  filed during the period provided in the citation. The court, in its
  discretion, may determine that a hearing is necessary on the
  application even if no opposition was filed during that period.
         (c)  If the court orders a hearing under Subsection (a) or
  (b) of this section, the court shall designate in writing a date and
  time for hearing the application and any opposition, together with
  the evidence pertaining to the application and opposition. The
  clerk shall issue a notice to the applicant and to each person who
  files an opposition to the sale, if applicable, of the date and time
  of the hearing.
         (d)  The judge may, by entries on the docket, continue a
  hearing held under this section from time to time until the judge is
  satisfied concerning the application.
         SECTION 9.04.  Section 346, Texas Probate Code, is amended
  to read as follows:
         Sec. 346.  ORDER OF SALE. If satisfied [upon hearing] that
  the sale of the property of the estate described in the application
  is necessary or advisable, the court shall order the sale to be
  made; otherwise, the court may deny the application and may, if it
  deems best, order the sale of other property the sale of which would
  be more advantageous to the estate. An order for the sale of real
  estate shall specify:
               (a)  The property to be sold, giving such description
  as will identify it; and
               (b)  Whether the property is to be sold at public
  auction or at private sale, and, if at public auction, the time and
  place of such sale; and
               (c)  The necessity or advisability of the sale and its
  purpose; and
               (d)  Except in cases in which no general bond is
  required, that, having examined the general bond of the
  representative of the estate, the court finds it to be sufficient as
  required by law, or finds the same to be insufficient and specifies
  the necessary or increased bond, as the case may be; and
               (e)  That the sale shall be made and the report returned
  in accordance with law; and
               (f)  The terms of the sale.
         SECTION 9.05.  Section 343, Texas Probate Code, is repealed.
         SECTION 9.06.  The changes in law made by this article apply
  only to:
               (1)  the estate of a decedent who dies before the
  effective date of this article, if the probate or administration of
  the estate is pending on the effective date of this article; and
               (2)  the estate of a decedent who dies on or after the
  effective date of this article.
  ARTICLE 10. EFFECTIVE DATE
         SECTION 10.01.  This Act takes effect September 1, 2007,
  except that Article 8 of this Act takes effect immediately if this
  Act receives a vote of two-thirds of all the members elected to each
  house, as provided by Section 39, Article III, Texas Constitution.  
  If this Act does not receive the vote necessary for immediate
  effect, Article 8 takes effect September 1, 2007.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 391 was passed by the House on March
  28, 2007, by the following vote:  Yeas 146, Nays 0, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 391 was passed by the Senate on May
  15, 2007, by the following vote:  Yeas 31, Nays 0.
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor