Estates Code

January 1, 2014 changes

A few comments about the Estates Code

• For some hints about getting acclimated to the structure of the Estates Code, see the attached PowerPoint. Also in that attachment are two helpful articles about the Estates Code.
• What Code do you refer to in pleadings and orders? Use common sense about what code you refer to. Some examples:
  1. Obviously, all applications filed January 1, 2014 or after should request action based on Estates Code references.
  2. If a post-January 1 order refers to request made under a Probate Code section, state accurately what was requested and cross-reference the Estates Code. (“…the Administrator requested authorization to sell the Estate’s interest in real property pursuant to Sections 341-342 of the Texas Probate Code, now Texas Estates Code Sections 356.251 & 356.252.”)
  3. If a post-January 1 order is referring to a Code provision as part of a finding, refer to the Estates Code. (“The Court finds that this fee is in compliance with Section 1155.053 of the Texas Estates Code.”)
  4. Use cross-references whenever you believe it would help.

A few substantive changes to remember.

(This is definitely not a comprehensive list of key changes.)

• EC § 51.203. The Clerk’s Office will no longer issue a commission to take deposition by written question. You must still post notice of the intention to take depositions for a period of 10 days as provided by EC 51.053. At the expiration of the posting period, the depositions for which the notice was posted may be taken.
• EC § 256.052(7). An application to probate a will no longer must contain the executor’s resident address. The application must contain “the name, state of residence, and physical address where service can be had of the executor named in the will or other person to whom the applicant desires that letters be issued.” The physical address may be an office or other location where the executor can be served.
• EC § 256.052(8). An application to probate a will no longer needs to contain the addresses of each subscribing witness. You must still include the names of the subscribing witnesses.
• As noted above, please also be aware of the impact of the new Rule 21c. Redact all social security numbers. Also, the definition of sensitive data includes a birth date, home address, and the name of any person who was a minor when the underlying suit was filed. Unless the inclusion of sensitive data is specifically required by a statute, this information cannot be included in a filed document.
  • EC § 202.005 specifically requires that the names and residences of the decedent’s heirs be included in an application to determine heirship. Therefore, if there is a minor heir in a determination of heirship, your application should still contain the name and address of the minor heir. Because of EC § 202.005, do not include birth dates – since the Estates Code does not specifically require that sensitive information – but do indicate that the minor heirs are minors.
• EC § 202.057. We’ll be modifying our heirship setting request forms to check for the newly required affidavit or certificate regarding required notice to interested parties.
• EC § 1052.051. In a guardianship, it’s now the applicant that pays the filing fee accompanying the application (including any ad litem deposit) unless the applicant – not the ward – can file an affidavit of inability to pay costs, or is a government or nonprofit agency providing guardianship services. If there’s a guardianship estate, the applicant may later seek reimbursement for the filing fees.
• EC §§ 1155.054, 1155.151, & 1251.013. A court may now assess attorney fees and other costs against a party to a guardianship proceeding who has acted in bad faith or without just cause.