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  H.B. No. 2492
 
 
 
 
AN ACT
  relating to the family allowance, treatment of exempt property, and
  an allowance in lieu of exempt property in the administration of a
  decedent's estate.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
  ARTICLE 1. CHANGES TO TEXAS PROBATE CODE
         SECTION 1.01.  Sections 139, 140, and 143, Texas Probate
  Code, are amended to read as follows:
         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, and adult incapacitated
  children of the decedent are entitled as a family allowance, there
  may be filed by or on behalf of the surviving spouse, [or] minor
  children, or adult incapacitated children an application in any
  court of proper venue for administration, or, if an application for
  the appointment of a personal representative has been filed but not
  yet granted, then in the court where such application has been
  filed, requesting the court to make a family allowance and to enter
  an order that no administration shall be necessary. The
  application shall state the names of the heirs or devisees, a list
  of creditors of the estate together with the amounts of the claims
  so far as the same are known, and a description of all real and
  personal property belonging to the estate, together with the
  estimated value thereof according to the best knowledge and
  information of the applicant, and the liens and encumbrances
  thereon, with a prayer that the court make a family allowance and
  that, if the entire assets of the estate, not including homestead
  and exempt property, are thereby exhausted, the same be set aside to
  the surviving spouse, [and] minor children, and adult incapacitated
  children, as in the case of other family allowances provided for by
  this Code.
         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, and adult incapacitated
  children the whole of the estate, in the same manner and with the
  same effect as provided in this Code for the making of family
  allowances to the surviving spouse, [and] minor children, and adult
  incapacitated children.
         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, and adult
  incapacitated children, does not exceed the amount sufficient to
  pay the claims of Classes One to Four, inclusive, as claims are
  hereinafter classified, the personal representative shall, upon
  order of the court, pay the claims in the order provided and to the
  extent permitted by the assets of the estate subject to the payment
  of such claims, and thereafter present the personal
  representative's [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.
         SECTION 1.02.  Sections 271(a) and (b), Texas Probate Code,
  are amended to read as follows:
         (a)  Unless an affidavit is filed under Subsection (b) of
  this section, immediately after the inventory, appraisement, and
  list of claims have been approved, the court shall, by order, set
  apart:
               (1)  the homestead for the use and benefit of the
  surviving spouse and minor children; and
               (2)  all other property of the estate that is exempt
  from execution or forced sale by the constitution and laws of this
  state for the use and benefit of the surviving spouse, [and] minor
  children, [and] unmarried adult children remaining with the family
  of the deceased, and each other adult child who is incapacitated.
         (b)  Before the approval of the inventory, appraisement, and
  list of claims:
               (1)  a surviving spouse or any person who is authorized
  to act on behalf of minor children of the deceased may apply to the
  court to have exempt property, including the homestead, set aside
  by filing an application and a verified affidavit listing all of the
  property that the applicant claims is exempt; and
               (2)  any unmarried adult child [children] remaining
  with the family of the deceased, any other adult child who is
  incapacitated, or a person who is authorized to act on behalf of the
  adult incapacitated child may apply to the court to have all exempt
  property other than the homestead set aside by filing an
  application and a verified affidavit listing all of the other
  property that the applicant claims is exempt.
         SECTION 1.03.  Sections 272, 273, 274, 275, 276, 286, 287,
  288, 290, 291, and 292, Texas Probate Code, are amended to read as
  follows:
         Sec. 272.  TO WHOM DELIVERED. The exempt property set apart
  to the surviving spouse and children shall be delivered by the
  executor or administrator without delay as follows:  (a) If there
  be a surviving spouse and no children, or if the children, including
  any adult incapacitated children, be the children of the surviving
  spouse, the whole of such property shall be delivered to the
  surviving spouse.  (b) If there be children and no surviving
  spouse, such property, except the homestead, shall be delivered to
  the guardian of each of those [such] children who is a minor, to
  each of those children who is of lawful age and not incapacitated,
  and to the guardian of each of those children who is an
  incapacitated adult or to another appropriate person, as determined
  by the court, on behalf of the adult incapacitated child if there is
  no guardian [if they be of lawful age, or to their guardian if they
  be minors].  (c) If there be children of the deceased of whom the
  surviving spouse is not the parent, the share of such children in
  such exempted property, except the homestead, shall be delivered to
  the guardian of each of those [such] children who is a minor, to
  each of those children who is of lawful age and not incapacitated,
  and to the guardian of each of those children who is an
  incapacitated adult or to another appropriate person, as determined
  by the court, on behalf of the adult incapacitated child if there is
  no guardian [if they be of lawful age, or to their guardian, if they
  be minors].  (d) In all cases, the homestead shall be delivered to
  the surviving spouse, if there be one, and if there be no surviving
  spouse, to the guardian of the minor children.
         Sec. 273.  ALLOWANCE IN LIEU OF EXEMPT PROPERTY. In case
  there should not be among the effects of the deceased all or any of
  the specific articles exempted from execution or forced sale by the
  Constitution and laws of this state, the court shall make a
  reasonable allowance in lieu thereof, to be paid to such surviving
  spouse and children, or such of them as there are, as hereinafter
  provided. The allowance in lieu of a homestead shall in no case
  exceed $15,000 and the allowance for other exempted property shall
  in no case exceed $5,000, exclusive of the allowance for the support
  of the surviving spouse, [and] minor children, and adult
  incapacitated children which is hereinafter provided for.
         Sec. 274.  HOW ALLOWANCE PAID. The allowance made in lieu of
  any of the exempted property shall be paid either in money out of
  the funds of the estate that come to the hands of the executor or
  administrator, or in any property of the deceased that such
  surviving spouse, [or] children who are [, if they be] of lawful
  age, guardian of children who are [or their guardian if they be]
  minors, or guardian of each adult incapacitated child or other
  appropriate person, as determined by the court, on behalf of the
  adult incapacitated child if there is no guardian, shall choose to
  take at the appraisement, or a part thereof, or both, as they shall
  select; provided, however, that property specifically bequeathed
  or devised to another may be so taken, or may be sold to raise funds
  for the allowance as hereinafter provided, only if the other
  available property shall be insufficient to provide the allowance.
         Sec. 275.  TO WHOM ALLOWANCE PAID. The allowance in lieu of
  exempt property shall be paid by the executor or administrator, as
  follows: (a) If there be a surviving spouse and no children, or if
  all the children, including any adult incapacitated children, be
  the children of the surviving spouse, the whole shall be paid to
  such surviving spouse.
         (b)  If there be children and no surviving spouse, the whole
  shall be [paid to and] equally divided among them and each of their
  shares shall be paid as follows:
               (1)  if the child is [they be] of lawful age and not
  incapacitated, to the child;
               (2)  [, but] if the child is a minor, [any of such
  children are minors, their shares shall be paid] to the child's
  [their] guardian; or
               (3)  if the child is an incapacitated adult, to the
  adult incapacitated child's guardian or another appropriate
  person, as determined by the court, on behalf of the adult
  incapacitated child if there is no guardian [guardians].
         (c)  If there be a surviving spouse, and children of the
  deceased, some of whom are not children of the surviving spouse, the
  surviving spouse shall receive one-half of the whole, plus the
  shares of the children of whom the survivor is the parent, and the
  remaining shares shall be paid with respect to each of the children
  of whom the survivor is not the parent as follows:
               (1)  if the child is an adult who is not incapacitated,
  to the child;
               (2)  if the child is a minor [or, if they are minors],
  to the child's [their] guardian; or
               (3)  if the child is an incapacitated adult, to the
  adult incapacitated child's guardian or another appropriate
  person, as determined by the court, on behalf of the adult
  incapacitated child if there is no guardian.
         Sec. 276.  SALE TO RAISE ALLOWANCE. If there be no property
  of the deceased that such surviving spouse or children are willing
  to take for such allowance, or not a sufficiency, and there be no
  funds, or not sufficient funds, of the estate in the hands of such
  executor or administrator to pay such allowance, or any part
  thereof, the court, on the application in writing of such surviving
  spouse and children, or of a person authorized to represent any of
  those children, shall order a sale of so much of the estate for cash
  as will be sufficient to raise the amount of such allowance, or a
  part thereof, as the case requires.
         Sec. 286.  FAMILY ALLOWANCE TO SURVIVING SPOUSES, [AND]
  MINORS, AND ADULT INCAPACITATED CHILDREN. (a) Unless an affidavit
  is filed under Subsection (b) of this section, immediately after
  the inventory, appraisement, and list of claims have been approved,
  the court shall fix a family allowance for the support of the
  surviving spouse, [and] minor children, and adult incapacitated
  children of the deceased.
         (b)  Before the approval of the inventory, appraisement, and
  list of claims, a surviving spouse or any person who is authorized
  to act on behalf of minor children or adult incapacitated children
  of the deceased may apply to the court to have the court fix the
  family allowance by filing an application and a verified affidavit
  describing the amount necessary for the maintenance of the
  surviving spouse, [and] minor children, and adult incapacitated
  children for one year after the date of the death of the decedent
  and describing the spouse's separate property and any property that
  minor children or adult incapacitated children have in their own
  right. The applicant bears the burden of proof by a preponderance
  of the evidence at any hearing on the application. The court shall
  fix a family allowance for the support of the surviving spouse,
  [and] minor children, and adult incapacitated children of the
  deceased.
         Sec. 287.  AMOUNT OF FAMILY ALLOWANCE. Such allowance shall
  be of an amount sufficient for the maintenance of such surviving
  spouse, [and] minor children, and adult incapacitated children for
  one year from the time of the death of the testator or intestate.
  The allowance shall be fixed with regard to the facts or
  circumstances then existing and those anticipated to exist during
  the first year after such death. The allowance may be paid either
  in a lump sum or in installments, as the court shall order.
         Sec. 288.  WHEN FAMILY ALLOWANCE NOT MADE. No such allowance
  shall be made for the surviving spouse when the survivor has
  separate property adequate to the survivor's maintenance; nor shall
  such allowance be made for the minor children or adult
  incapacitated children when they have property in their own right
  adequate to their maintenance.
         Sec. 290.  FAMILY ALLOWANCE PREFERRED. The family allowance
  made for the support of the surviving spouse, [and] minor children,
  and adult incapacitated children of the deceased shall be paid in
  preference to all other debts or charges against the estate, except
  Class 1 claims.
         Sec. 291.  TO WHOM FAMILY ALLOWANCE PAID. The executor or
  administrator shall apportion and pay the family allowance:
         (a)  To the surviving spouse, if there be one, for the use of
  the survivor and the minor children and adult incapacitated
  children, if such children be the survivor's.
         (b)  If the surviving spouse is not the parent of such minor
  children and adult incapacitated children, or of some of them, the
  portion of such allowance necessary for the support of such minor
  child or children of which the survivor is not the parent shall be
  paid to the guardian or guardians of such child or children who are
  minors, and to the guardian of each adult incapacitated child or
  another appropriate person, as determined by the court, on behalf
  of the adult incapacitated child if there is no guardian.
         (c)  If there be no surviving spouse, the allowance to the
  minor child or children shall be paid to the guardian or guardians
  of such minor child or children, and the allowance to each adult
  incapacitated child shall be paid to the guardian of the adult
  incapacitated child or another appropriate person, as determined by
  the court, on behalf of the adult incapacitated child if there is no
  guardian.
         (d)  If there be a surviving spouse and no minor child or
  adult incapacitated child [children], the entire allowance shall be
  paid to the surviving spouse.
         Sec. 292.  MAY TAKE PROPERTY FOR FAMILY ALLOWANCE. The
  surviving spouse, [or] the guardian of the minor children, or the
  guardian of an adult incapacitated child or another appropriate
  person, as determined by the court, on behalf of the adult
  incapacitated child if there is no guardian, as the case may be,
  shall have the right to take in payment of such allowance, or any
  part thereof, any of the personal property of the estate at its
  appraised value as shown by the appraisement; provided, however,
  that property specifically devised or bequeathed to another may be
  so taken, or may be sold to raise funds for the allowance as
  hereinafter provided, only if the other available property shall be
  insufficient to provide the allowance.
         SECTION 1.04.  The changes in law made by this article apply
  only to the estate of a decedent who dies on or after the effective
  date of this Act. The estate of a decedent who dies before the
  effective date of this Act 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 2. CHANGES TO ESTATES CODE
         SECTION 2.01.  Sections 353.051(a) and (b), Estates Code, as
  effective January 1, 2014, are amended to read as follows:
         (a)  Unless an application and verified affidavit are filed
  as provided by Subsection (b), immediately after the inventory,
  appraisement, and list of claims of an estate are approved, the
  court by order shall set aside:
               (1)  the homestead for the use and benefit of the
  decedent's surviving spouse and minor children; and
               (2)  all other estate property that is exempt from
  execution or forced sale by the constitution and laws of this state
  for the use and benefit of the decedent's:
                     (A)  surviving spouse and minor children; [and]
                     (B)  unmarried adult children remaining with the
  decedent's family; and
                     (C)  each other adult child who is incapacitated.
         (b)  Before the inventory, appraisement, and list of claims
  of an estate are approved:
               (1)  the decedent's surviving spouse or any other
  person authorized to act on behalf of the decedent's minor children
  may apply to the court to have exempt property, including the
  homestead, set aside by filing an application and a verified
  affidavit listing all property that the applicant claims is exempt;
  and
               (2)  any of the decedent's unmarried adult children
  remaining with the decedent's family, any other adult child of the
  decedent who is incapacitated, or a person who is authorized to act
  on behalf of the adult incapacitated child may apply to the court to
  have all exempt property, other than the homestead, set aside by
  filing an application and a verified affidavit listing all
  property, other than the homestead, that the applicant claims is
  exempt.
         SECTION 2.02.  Sections 353.052(b), (c), and (d), Estates
  Code, as effective January 1, 2014, are amended to read as follows:
         (b)  If there is a surviving spouse and there are no children
  of the decedent, or if all the children, including any adult
  incapacitated children, of the decedent are also the children of
  the surviving spouse, the executor or administrator shall deliver
  all exempt property to the surviving spouse.
         (c)  If there is a surviving spouse and there are children of
  the decedent who are not also children of the surviving spouse, the
  executor or administrator shall deliver the share of those children
  in exempt property, other than the homestead, to:
               (1)  the children, if the children are of legal age;
  [or]
               (2)  the children's guardian, if the children are
  minors; or
               (3)  the guardian of each of the children who is an
  incapacitated adult, or to another appropriate person, as
  determined by the court, on behalf of the adult incapacitated child
  if there is no guardian.
         (d)  If there is no surviving spouse and there are children
  of the decedent, the executor or administrator shall deliver exempt
  property, other than the homestead, to:
               (1)  the children, if the children are of legal age;
  [or]
               (2)  the children's guardian, if the children are
  minors; or
               (3)  the guardian of each of the children who is an
  incapacitated adult, or to another appropriate person, as
  determined by the court, on behalf of the adult incapacitated child
  if there is no guardian.
         SECTION 2.03.  Section 353.053(b), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (b)  The allowance in lieu of a homestead may not exceed
  $15,000, and the allowance in lieu of other exempt property may not
  exceed $5,000, excluding the family allowance for the support of
  the surviving spouse, [and] minor children, and adult incapacitated
  children provided by Subchapter C.
         SECTION 2.04.  Sections 353.054(b), (c), and (d), Estates
  Code, as effective January 1, 2014, are amended to read as follows:
         (b)  If there is a surviving spouse and there are no children
  of the decedent, or if all the children, including any adult
  incapacitated children, of the decedent are also the children of
  the surviving spouse, the executor or administrator shall pay the
  entire allowance to the surviving spouse.
         (c)  If there is a surviving spouse and there are children of
  the decedent who are not also children of the surviving spouse, the
  executor or administrator shall pay the surviving spouse one-half
  of the entire allowance plus the shares of the decedent's children
  of whom the surviving spouse is the parent.  The remaining shares
  must be paid to:
               (1)  the decedent's adult children of whom the
  surviving spouse is not a parent and who are not incapacitated; [or]
               (2)  the guardian of the children of whom the surviving
  spouse is not a parent and who [described by Subdivision (1), if
  those children] are minors; or
               (3)  the guardian or another appropriate person, as
  determined by the court, if there is no guardian, of each child who
  is an incapacitated adult.
         (d)  If there is no surviving spouse and there are children
  of the decedent, the executor or administrator shall divide the
  entire allowance equally among the children and pay the children's
  shares to:
               (1)  each of those [the] children who are adults and who
  are not incapacitated;
               (2)  the guardian of each [, if the children are of
  legal age, or, if any] of those [the] children who are minors; or
               (3)  the guardian or another appropriate person, as
  determined by the court, if there is no guardian, of each of those
  children who is an incapacitated adult[, pay the minor children's
  shares to the guardian of the minor children].
         SECTION 2.05.  Section 353.055(a), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (a)  An allowance in lieu of any exempt property shall be
  paid in the manner selected by the decedent's surviving spouse or
  children of legal age, or by the guardian of the decedent's minor
  children, or by the guardian of each adult incapacitated child or
  other appropriate person, as determined by the court, if there is no
  guardian, as follows:
               (1)  in money out of estate funds that come into the
  executor's or administrator's possession;
               (2)  in any of the decedent's property or a part of the
  property chosen by those individuals at the appraisement; or
               (3)  part in money described by Subdivision (1) and
  part in property described by Subdivision (2).
         SECTION 2.06.  Section 353.056(a), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (a)  On the written application of the decedent's surviving
  spouse and children, or of a person authorized to represent any of
  those children, the court shall order the sale of estate property
  for cash in an amount that will be sufficient to raise the amount of
  the allowance provided under Section 353.053 or a portion of that
  amount, as necessary, if:
               (1)  the decedent had no property that the surviving
  spouse or children are willing to take for the allowance or the
  decedent had insufficient property; and
               (2)  there are not sufficient estate funds in the
  executor's or administrator's possession to pay the amount of the
  allowance or a portion of that amount, as applicable.
         SECTION 2.07.  Section 353.101, Estates Code, as effective
  January 1, 2014, is amended to read as follows:
         Sec. 353.101.  FAMILY ALLOWANCE. (a) Unless an application
  and verified affidavit are filed as provided by Subsection (b),
  immediately after the inventory, appraisement, and list of claims
  of an estate are approved, the court shall fix a family allowance
  for the support of the decedent's surviving spouse, [and] minor
  children, and adult incapacitated children.
         (b)  Before the inventory, appraisement, and list of claims
  of an estate are approved, the decedent's surviving spouse or any
  other person authorized to act on behalf of the decedent's minor
  children or adult incapacitated children may apply to the court to
  have the court fix the family allowance by filing an application and
  a verified affidavit describing:
               (1)  the amount necessary for the maintenance of the
  surviving spouse, [and] the decedent's minor children, and the
  decedent's adult incapacitated children for one year after the date
  of the decedent's death; and
               (2)  the surviving spouse's separate property and any
  property that the decedent's minor children or adult incapacitated
  children have in their own right.
         (c)  At a hearing on an application filed under Subsection
  (b), the applicant has the burden of proof by a preponderance of the
  evidence.  The court shall fix a family allowance for the support
  of the decedent's surviving spouse, [and] minor children, and adult
  incapacitated children.
         (d)  A family allowance may not be made for:
               (1)  the decedent's surviving spouse, if the surviving
  spouse has separate property adequate for the surviving spouse's
  maintenance; [or]
               (2)  the decedent's minor children, if the minor
  children have property in their own right adequate for the
  children's maintenance; or
               (3)  any of the decedent's adult incapacitated
  children, if the adult incapacitated child has property in the
  person's own right adequate for the person's maintenance.
         SECTION 2.08.  Section 353.102(a), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (a)  The amount of the family allowance must be sufficient
  for the maintenance of the decedent's surviving spouse, [and] minor
  children, and adult incapacitated children for one year from the
  date of the decedent's death.
         SECTION 2.09.  Section 353.104, Estates Code, as effective
  January 1, 2014, is amended to read as follows:
         Sec. 353.104.  PREFERENCE OF FAMILY ALLOWANCE. The family
  allowance made for the support of the decedent's surviving spouse,
  [and] minor children, and adult incapacitated children shall be
  paid in preference to all other debts of or charges against the
  estate, other than Class 1 claims.
         SECTION 2.10.  Sections 353.105(b), (c), (d), and (e),
  Estates Code, as effective January 1, 2014, are amended to read as
  follows:
         (b)  If there is a surviving spouse and there are no minor
  children or adult incapacitated children of the decedent, the
  executor or administrator shall pay the entire family allowance to
  the surviving spouse.
         (c)  If there is a surviving spouse and all of the minor
  children and adult incapacitated children of the decedent are also
  the children of the surviving spouse, the executor or administrator
  shall pay the entire family allowance to the surviving spouse for
  use by the surviving spouse, [and] the decedent's minor children,
  and adult incapacitated children.
         (d)  If there is a surviving spouse and some or all of the
  minor children or adult incapacitated children of the decedent are
  not also children of the surviving spouse, the executor or
  administrator shall pay:
               (1)  the portion of the entire family allowance
  necessary for the support of those minor children to the guardian of
  those children; and
               (2)  the portion of the entire family allowance
  necessary for the support of each of those adult incapacitated
  children to the guardian of the adult incapacitated child or
  another appropriate person, as determined by the court, on behalf
  of the adult incapacitated child if there is no guardian.
         (e)  If there is no surviving spouse and there are minor
  children or adult incapacitated children of the decedent, the
  executor or administrator shall pay the family allowance:
               (1)  for the minor children, to the guardian of those
  children; and
               (2)  for each adult incapacitated child, to the
  guardian of the adult incapacitated child or another appropriate
  person, as determined by the court, on behalf of the adult
  incapacitated child if there is no guardian.
         SECTION 2.11.  The heading to Section 353.106, Estates Code,
  as effective January 1, 2014, is amended to read as follows:
         Sec. 353.106.  SURVIVING SPOUSE, [OR] MINOR CHILDREN, OR
  ADULT INCAPACITATED CHILDREN MAY TAKE PERSONAL PROPERTY FOR FAMILY
  ALLOWANCE.
         SECTION 2.12.  Section 353.106(a), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (a)  A decedent's surviving spouse, [or] the guardian of the
  decedent's minor children, or the guardian of an adult
  incapacitated child of the decedent or another appropriate person,
  as determined by the court, on behalf of the adult incapacitated
  child if there is no guardian, as applicable, is entitled to take,
  at the property's appraised value as shown by the appraisement, any
  of the estate's personal property in full or partial payment of the
  family allowance.
         SECTION 2.13.  Section 353.107(a), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (a)  The court shall, as soon as the inventory, appraisement,
  and list of claims are returned and approved, order the sale of
  estate property for cash in an amount that will be sufficient to
  raise the amount of the family allowance, or a portion of that
  amount, as necessary, if:
               (1)  the decedent had no personal property that the
  surviving spouse, [or] the guardian of the decedent's minor
  children, or the guardian of the decedent's adult incapacitated
  child or other appropriate person acting on behalf of the adult
  incapacitated child is willing to take for the family allowance, or
  the decedent had insufficient personal property; and
               (2)  there are not sufficient estate funds in the
  executor's or administrator's possession to pay the amount of the
  family allowance or a portion of that amount, as applicable.
         SECTION 2.14.  Section 354.001(a), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (a)  If, after a personal representative of an estate has
  filed the inventory, appraisement, and list of claims as required
  by Chapter 309, it is established that the decedent's estate,
  excluding any homestead, exempt property, and family allowance to
  the decedent's surviving spouse, [and] minor children, and adult
  incapacitated children, does not exceed the amount sufficient to
  pay the claims against the estate classified as Classes 1 through 4
  under Section 355.102, the representative shall:
               (1)  on order of the court, pay those claims in the
  order provided and to the extent permitted by the assets of the
  estate subject to the payment of those claims; and
               (2)  after paying the claims in accordance with
  Subdivision (1), present to the court the representative's account
  with an application for the settlement and allowance of the
  account.
         SECTION 2.15.  Sections 451.001(a) and (d), Estates Code, as
  effective January 1, 2014, are amended to read as follows:
         (a)  If the value of the entire assets of an estate,
  excluding homestead and exempt property, does not exceed the amount
  to which the surviving spouse, [and] minor children, and adult
  incapacitated children of the decedent are entitled as a family
  allowance, an application may be filed by or on behalf of the
  surviving spouse, [or] minor children, or adult incapacitated
  children requesting a court to make a family allowance and to enter
  an order that no administration of the decedent's estate is
  necessary.
         (d)  The application must also include a prayer that the
  court make a family allowance and that, if the family allowance
  exhausts the entire assets of the estate, excluding homestead and
  exempt property, the entire assets of the estate be set aside to the
  surviving spouse, [and] minor children, and adult incapacitated
  children, as with other family allowances provided for by
  Subchapter C, Chapter 353.
         SECTION 2.16.  Section 451.002(b), Estates Code, as
  effective January 1, 2014, is amended to read as follows:
         (b)  On the hearing of the application, if the court finds
  that the facts contained in the application are true and that the
  expenses of last illness, funeral charges, and expenses of the
  proceeding have been paid or secured, the court shall:
               (1)  make a family allowance; and
               (2)  if the entire assets of the estate, excluding
  homestead and exempt property, are exhausted by the family
  allowance made under Subdivision (1):
                     (A)  assign to the surviving spouse, [and] minor
  children, and adult incapacitated children the entire estate in the
  same manner and with the same effect as provided in Subchapter C,
  Chapter 353, for the making of a family allowance to the surviving
  spouse, [and] minor children, and adult incapacitated children; and
                     (B)  order that there shall be no administration
  of the estate.
         SECTION 2.17.  The changes in law made to Sections 139, 140,
  143, 271(a) and (b), 272, 273, 274, 275, 276, 286, 287, 288, 290,
  291, and 292, Texas Probate Code, by Article 1 of this Act are
  repealed.
         SECTION 2.18.  This article takes effect January 1, 2014.
  ARTICLE 3. EFFECTIVE DATE
         SECTION 3.01.  Except as otherwise provided by this Act,
  this Act takes effect September 1, 2011.
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
 
         I certify that H.B. No. 2492 was passed by the House on May
  11, 2011, by the following vote:  Yeas 146, Nays 3, 1 present, not
  voting.
 
  ______________________________
  Chief Clerk of the House   
 
 
         I certify that H.B. No. 2492 was passed by the Senate on May
  25, 2011, by the following vote:  Yeas 31, Nays 0
  .
 
  ______________________________
  Secretary of the Senate    
  APPROVED:  _____________________
                     Date          
   
            _____________________
                   Governor