11 Dec 2019 Estate Code Legislative Updates: Justin Crain, Partner
This year’s legislative session brought some changes to the Estates Code. Not all of these updates apply to each of our clients; however, sharing the most up-to-date information will allow you to be ready should a friend or loved one experience a unique situation.
Number of Disinterested Witnesses in an Heirship (Sec. 202.151)
This change requires two disinterested and credible witnesses in an heirship proceeding unless the court is satisfied that only one can be found. This section does not require that any of the witnesses personally knew the decedent. A genealogist who never met the decedent could be a disinterested witness who proves up the heirship solely by documentation found by the witness.
Note: As a 2019 Crain & Wooley client, your family and loved ones will not be subject to heirship proceedings because you have a valid will or trust in place. However, for those individuals who die without an estate plan, heirship proceedings must happen prior to the disbursement of assets.
Ability to Delegate Appointment of Administrator (Secs. 254.006, 256.051, 301.051, 301.052, and 304.001)
New Sec. 254.006 allows a testator to grant to a named executor or other person designated by name, office, or function the authority to name one or more persons to serve as administrator. By default, the designee(s) would act only if all named successors were unable or unwilling to act, but the will could provide otherwise (i.e., the person with the designation power could be given the ability to override the default order of succession). Unless the will or designation provides otherwise, the designee would have the same rights, powers, and duties of any named executor. The designee would still need to offer the normal proof to the court that the designee is qualified to act, not disqualified, etc.
Note: As a 2019 Crain & Wooley client, you have support to change your estate plan should those named no longer be able or willing to fulfill administrative functions. If you need to change an executor, trustee or other agent, please contact our office as soon as possible.
Waiver of Bond Where Will Doesn’t Waive Bond (Sec. 401.005)
This change allows the distributees (beneficiaries) to waive bond for an executor or administrator where the will doesn’t automatically waive it.
Note: As a 2019 Crain & Wooley client, your documents include language either allowing or disallowing waiver of bond per your wishes. This 2019 law change allows for beneficiaries to waive bond if the estate plan does not include language to this effect.
Recording of Non-English Foreign Wills (Sec. 503.002)
When an authenticated copy of a foreign will and its probate is recorded in the deed records, if any portion is not in English, it must be accompanied by an English translation, the accuracy of which is sworn to.
Online Notice by Publication (Secs. 51.054, 51.103, 1051.054, & 1051.153; C.P. & R. Code Sec. 17.032).
In addition to publication in a newspaper of general circulation, notice will be required to be posted on a public information website created and maintained by the Office of Court Administration. Exceptions to newspaper publications are provided based on inability to afford payment, the newspaper’s publication cost (> $200 each week, adjusted for inflation), or lack of a circulated newspaper in the county of publication. The specific amendments to Estates Code Secs. 51.054 and 1051.054 provide that the date of service is the earlier of the date published in the newspaper or posted on the public information website. Proof of service will consist of the publisher’s affidavit and an affidavit obtained from the OCA. The option for posting a notice at the courthouse where there is not a newspaper is repealed.
Note: If you have a trust and have funded it properly, your estate will forgo the probate process which includes online and traditional notice by publications.
Medical Power of Attorney (MPOA)
The Medical Power of Attorney is required to be in the state-mandated format effective January 1, 2018. There were attempts this last congressional session to change this so there would be no required language, but those attempts failed. The current requirements were successfully defended by the Texas Medical Association and the Texas Hospital Association. Using standard language does simplify medical professionals’ ability to interpret people’s legal wishes.
Note: As a 2019 Crain & Wooley client, your MPOA is written in the correct format. We would urge to you encourage your friends and family to update their MPOA to the required format as soon as possible.
Do you have questions about how the legislative changes may impact you and your family? Contact Crain & Wooley today.