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An Overview of the New Texas Estates Code
By:  Judge Chris Wilmoth

When the Texas Estates Code becomes effective on January 1, 2014, a decades-long project to codify the laws of the State of Texas will be complete. The statutory revision project began in 1963 with the enactment of SB 367, which required the Texas Legislative Council to convert the existing statutes (commonly found in Vernon’s Revised Civil Statutes) into a system of codes organized by subject. The project involved reclassification and rearrangement of existing statutes “to clarify and simplify the statutes and to make the statutes more accessible, understandable and usable.” The revision was intended to be nonsubstantive. In other words, “the law” should remain unchanged even if the statutes adopted modern diction and a more logical arrangement.

The Estates Code replaces the Texas Probate Code, which, ironically, was never a “code” in the sense contemplated by the codification project. First, the Probate Code was enacted in 1955, long before the start of the codification project, and was itself a rearrangement and renumbering of existing law. Second, the numbering system used by the Probate Code did not follow the rules set forth by the codification project. Members of the probate bar persuaded the Legislative Council to delay the “re”-codification of the Probate Code as long as possible. 

The Legislative Council took up the recodification of the Probate Code in 2006. The Real Estate, Property and Trust Law Section of the State Bar of Texas (“REPTL”) established a Probate Code Codification Committee to work with the Legislative Council in this process.  The REPTL committee played a significant role in clarifying existing law, particularly in the areas of jurisdiction, venue and independent administration. 

A bill containing the proposed revision of the decedents’ estates portion of the Probate Code was introduced in 2009 by Rep. Will Hartnett, a Dallas probate lawyer. The name was shortened from the Estates and Guardianship Code to the Estates Code in the bill that passed later that session. The guardianship portion of the code was adopted in 2011. The effective date of the new code was delayed until 2014 so practitioners could propose fixes to the new code before it became operative.

Texas lawyers are familiar with the numbering system used in codes such as the Civil Practices and Remedies Code or the Property Code. The codes are subdivided into titles, chapters, subchapters, and sections. The Estates Code comprises three titles: (1) general provisions, (2) decedents’ estates and powers of attorney, and (3) guardianship and related provisions. A review of the subject matter covered by the subtitles concerning decedents’ estates provides a general sense of the organization of the new Estates Code.

Most definitions and rules applicable to probate and guardianship are found in Title 1. Title 2 contains thirteen subtitles, A through L and P. (The gap permits room for future expansion of the law concerning decedents’ estates.) Subtitle A (chapters 31–34) addresses jurisdiction, venue, and transfers. Subtitle B (chapters 51-56) contains rules for citation and notice in probate.

Subtitle C (chapters 101–102, 111–113, and 121–124) governs the passage of title and distribution of decedents’ property. This subtitle gathers in one place laws formerly scattered throughout the Probate Code, such as the laws concerning nonprobate assets, community property survivor agreements, disclaimers, the effect of dissolution of marriage on wills and nontestamentary transfers, and the valuation and taxation of estate property. Subtitle D (chapters 151–152) addresses proceedings that typically occur before probate administration begins, such as emergency interventions and entry into a safe deposit box.

Subtitle E (chapters 201–205) sets forth the laws of descent and inheritance, including judicial and nonjudicial methods of establishing heirship. This is where to look for statutory affidavits of heirship and small-estate affidavits. Subtitle F (chapters 251–258) contains the laws pertaining to the execution, construction and interpretation of wills as well as the rules applying to probate of wills.

The statutes concerning the initial appointment and qualification of personal representatives of decedents’ estates are found in Subtitle G (chapters 301–310). This subtitle also covers notices to be given by executors and administrators as well as inventories, appraisements and lists of claims (or affidavits in lieu of claims).

Next, Subtitle H (chapters 351–362) addresses the administration of estates and covers powers of personal representatives, compensation of personal representatives, setting aside exempt property and establishing family allowances, presentment and payment of claims, sale and rental of estate property, the making of annual accounts, partition and distribution and closing of estates.

Subtitle I (chapters 401–405) is for independent administrations, from creation to closing. Subtitle J (chapters 451–455) covers special forms of administration, such as temporary administrations, administration of community estates, and administration of the estates of persons presumed to be dead.

Finally, Subtitle K (chapters 501–505) collects the laws concerning foreign wills, Subtitle L (chapter 551) deals with estates of property to the state, and Subtitle P (chapters 751–752) concerns durable powers of attorney.

The new guardianship statutes are contained in Title 3. The organization of Title 3 is similar to that of Title 2, but it is not identical. Commonly used portions of the statute are in these chapters of Title 3: jurisdiction, venue and transfer (chapters 1021–1023); citation and notice (chapter 1051); applications to appoint a guardian and proof necessary (chapter 1101); court-initiated guardianships (chapter 1102); eligibility and selection of guardians (chapter 1104); qualification and bonds (chapter 1105); compensation of professionals (chapter 1155); annual reports and accounts (chapter 1163); termination of guardianship (chapter 1202); removal of guardian (chapter 1203); temporary guardianships (chapter 1251); management trusts (chapter 1301); and deposit of funds owed to an incapacitated person without a guardian (chapter 1355).

Aside from the new section numbers, the biggest change brought about by the Estates Code is the layout of familiar provisions of law. For example, sections 38 and 45 of the Probate Code, concerning passage of property when a person dies intestate, are now Chapter 201—sections 201.001–201.003—of the Estates Code. Much of the difficulty in explaining intestate succession in Texas is lessened simply through plainer presentation of the law resulting from related provisions being gathered in one place.

The Hon. Chris Wilmoth is the judge of Dallas County Probate Court No. 2.