This is part 1 in a 3-part series.
Every Texas legislative session is busy, but the 2023 regular session seemed a bit busier than usual regarding bills affecting seniors. The bills addressed decedent’s estates, guardianship, durable power of attorney, disposition of remains, anatomical gifts and trusts.
We’ll address some of the more prominent changes in a 3-part series beginning with this column.
Probate Notifications
When you are a beneficiary of a will or a secured creditor of an estate, you should receive some type of notice when a probate estate is opened. The old law had required that the executor send you notice by registered or certified mail, and then provide proof of service to the court. The problem was that the US postal service did not always notify the executor once the mail had been delivered. Under the new law, you can be notified by a “qualified delivery method,” which now includes private delivery services like DHL Express, FedEx and UPS. Private delivery services are available to the general public and keep an electronic database of deliveries.
Beneficiary Designations
The law regarding beneficiary designations and joint accounts with the right of survivorship has been extended to include brokerage accounts. These now fall under the definition of multi-party accounts.
Heirship Witnesses
Heirship cases are the scourge of lawyers because the lawyers must produce two disinterested and credible witnesses in court to testify about the decedent’s heirs. There was one procedural shortcut, where an heir could testify via a deposition on written questions, but that involved court reporters, time, and expense. The law changed to allow lawyers to file an affidavit of heirship signed by the witness, instead of providing testimony. That is easier and cheaper all the way around.
Waivers for Children
Pity the poor children. Those 12 or older had to be personally served with required notices. That would be intimidating to anyone, much less a child. The new law states that certain persons (such as parents) can now sign a waiver of service on behalf of a child under the age of 16, and that minors who are at least 16 years old can sign their own waivers. Not only is that kinder, but it is also less expensive.
Felon Executors
I’m not sure this is a change for the better, but here it is. Felons have never been allowed to serve as an executor of a probate estate. That changed this legislative session. Now a felon can be appointed executor if the felon was named executor in the decedent’s will, the felon is otherwise qualified, and the Court approves the felon serving as Executor. We’ll see how many courts are willing to appoint a felon as executor.
Executor’s Oath
One procedure for executors has changed: the oath. The executor has always had to sign a written oath in front of a notary or the judge. Under the new law, the executor can sign an oath just with an “unsworn declaration,” which is a form that gives identifying information about the signor.
Community Property Debts
The next change may seem a bit of language parsing, but it is important. Several places in the Estates Code referred to “community debts” in a decedent’s estate. That is a fake term, because there is no such thing as a “community debt.” The reference has been removed, and the new language is “debts for which some community property is liable for payment.”
New Probate Courts
And last, but not least, new probate courts were approved for the following counties: Travis, Harris, Bexar, Montgomery, and Cameron. Texas now has 24 statutory probate courts. Apparently specialized courts are here to stay.
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Attorney Virginia Hammerle has practiced litigation and estate planning for 40 years. She is founder and managing attorney for Hammerle Finley Law Firm.
Read part 2 of the series: Trust Tweaks: Small Changes with Big Outcomes
