2013 Probate and Estate Legislation Update

For almost five months, the 83rd Regular Session of the Texas Legislature worked to improve your laws.  From January to the end of May, the House and Senate introduced and debated new ideas, heard opinions from experts and the public on how to fix old ideas and polished up bills to present to Governor Perry for his passage.  This session, on the eve of the change from the Probate Code to the Estates Code, the legislative branch devoted a good deal of attention to the law that affects probate, decedents’ estates, guardianships and trusts.  Here are some of the more interesting changes.  As of June 3, the following changes are parts of bills awaiting Governor Perry’s action.

Section 253.001 of the Estates Code includes a minor, but very important addition.  The section addresses and clarifies what a court can and cannot do when determining that a Ward is partially or totally incapacitated.  A court cannot prohibit a person from executing a new Will or Codicil.  The new addition adds that if a Court does this, the Order is void.

Section 309.057 is a new addition that gives our probate judges more discretion to punish an administrator or executor that fails to file an inventory, or an affidavit in lieu of an inventory if the circumstances permit one.  Under the new section, a court can impose a fine of up to $1,000 for this failure.  Today, this issue is handled in an increasing-threat fashion.  Courts will first issue a reminder letter, or maybe two, for an overdue inventory.  Wait too long and a Citation will issue requiring the executor to appear and show good cause for their failure to file.  This new section adds a monetary fine to the judges’ abilities, which many executors would probably find more irritating than being removed from their position.

In 2011, on the guardianship side, some legislators worked to introduce a bill that would permit a court to assess attorney fees and other costs against a party in a guardianship who had acted in bad faith, or without just cause.  That bill never passed.  This session, a similar bill has emerged that many guardianship attorneys have wanted for some time.  Sections 1155.054, 1155.151 and 1251.013 permit a court to assess costs and issue a judgment against a party that seeks to impose or avoid a guardianship for another person in bad faith or without good cause.  The party could be ordered to pay the ward’s estate for virtually all of the attorneys’ fees and expenses incurred by the ward.  Expect to see the issues of good faith and just cause take a prominent place in contested guardianship proceedings, as these sections add a very interesting dynamic to guardianship litigation.