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Estates and Guardianship Code
Proposed Chapters
81C138(3) MTB

81C138(3) MTB

 

CHAPTER 101. ESTATE ASSETS IN GENERAL

SUBCHAPTER A. PASSAGE AND POSSESSION OF DECEDENT'S ESTATE ON DEATH

Sec. 101.001.  PASSAGE OF ESTATE ON DECEDENT'S DEATH ....... 1

Sec. 101.002.  EFFECT OF JOINT OWNERSHIP OF PROPERTY ....... 2

Sec. 101.003.  POSSESSION OF ESTATE BY PERSONAL

                 REPRESENTATIVE ............................ 3

[Sections 101.004-101.050 reserved for expansion]

SUBCHAPTER B. LIABILITY OF ESTATE FOR DEBTS

Sec. 101.051.  LIABILITY OF ESTATE FOR DEBTS IN GENERAL .... 3

Sec. 101.052.  LIABILITY OF COMMUNITY PROPERTY FOR

                 DEBTS OF DECEASED SPOUSE .................. 4

CHAPTER 101. ESTATE ASSETS IN GENERAL

SUBCHAPTER A. PASSAGE AND POSSESSION OF DECEDENT'S ESTATE ON DEATH

Revised Law

Sec. 101.001.  PASSAGE OF ESTATE ON DECEDENT'S DEATH. (a) Subject to Section 101.051, if a person dies leaving a lawful will:

(1)  all of the person's estate that is devised by the will vests immediately in the devisees;

(2)  all powers of appointment granted in the will vest immediately in the donees of those powers; and

(3)  all of the person's estate that is not devised by the will vests immediately in the person's heirs at law.

(b)  Subject to Section 101.051, the estate of a person who dies intestate vests immediately in the person's heirs at law. (Tex. Prob. Code, Sec. 37 (part).)

Source Law

Sec. 37.  When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will, and all powers of appointment granted in such will, shall vest immediately in the devisees or legatees of such estate and the donees of such powers; and all the estate of such person, not devised or bequeathed, shall vest immediately in his heirs at law; subject, however, to whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but with the exception aforesaid  .

Revisor's Note

(1)  Section 37, Texas Probate Code, refers to an estate "devised or bequeathed" by a will. The revised law omits the reference to "bequeathed" as unnecessary. Traditionally, "devise" referred to the disposition of real property by a will; "bequeath" usually refers to the disposition of personal property by a will. Black's Law Dictionary (revised eighth edition, 2004). Section 3(h), Texas Probate Code, revised as Section _______ of this code, provides that "devise" means "to dispose of real or personal property, or of both, by will." The revised law therefore omits "bequeathed" because the meaning of that term is included within the meaning of "devised."

(2)  Section 37, Texas Probate Code, refers to "devisees or legatees" of an estate. The revised law omits the reference to "legatees" because Section 3(i), Texas Probate Code, revised as Section _______ of this code, provides that "devisee" includes "legatee."

Revised Law

Sec. 101.002.  EFFECT OF JOINT OWNERSHIP OF PROPERTY. If two or more persons hold an interest in property jointly and one joint owner dies before severance, the interest of the decedent in the joint estate:

(1)  does not survive to the remaining joint owner or owners; and

(2)  passes by will or intestacy from the decedent as if the decedent's interest had been severed. (Tex. Prob. Code, Sec. 46(a) (part).)

Source Law

Sec. 46.  (a) If two or more persons hold an interest in property jointly, and one joint owner dies before severance, the interest of the decedent in the joint estate shall not survive to the remaining joint owner or owners but shall pass by will or intestacy from the decedent as if the decedent's interest had been severed.

Revised Law

Sec. 101.003.  POSSESSION OF ESTATE BY PERSONAL REPRESENTATIVE. On the issuance of letters testamentary or of administration on an estate described by Section 101.001, the executor or administrator has the right to possession of the estate as the estate existed at the death of the testator or intestate, subject to the exceptions provided by Section 101.051. The executor or administrator shall recover possession of the estate and hold the estate in trust to be disposed of in accordance with the law. (Tex. Prob. Code, Sec. 37 (part).)

Source Law

Sec. 37.   but upon the issuance of letters testamentary or of administration upon any such estate, the executor or administrator shall have the right to possession of the estate as it existed at the death of the testator or intestate, with the exception aforesaid; and he shall recover possession of and hold such estate in trust to be disposed of in accordance with the law.

[Sections 101.004-101.050 reserved for expansion]

SUBCHAPTER B. LIABILITY OF ESTATE FOR DEBTS

Revised Law

Sec. 101.051.  LIABILITY OF ESTATE FOR DEBTS IN GENERAL. (a) A decedent's estate vests in accordance with Section 101.001(a) subject to the payment of:

(1)  the debts of the decedent, except as exempted by law; and

(2)  any court-ordered child support payments that are delinquent on the date of the decedent's death.

(b)  A decedent's estate vests in accordance with Section 101.001(b) subject to the payment of, and is still liable for:

(1)  the debts of the decedent, except as exempted by law; and

(2)  any court-ordered child support payments that are delinquent on the date of the decedent's death. (Tex. Prob. Code, Sec. 37 (part).)

Source Law

Sec. 37.  [When a person dies] [all of his estate] [shall vest] [subject, however, to] the payment of the debts of the testator or intestate, except such as is exempted by law, and subject to the payment of court-ordered child support payments that are delinquent on the date of the person's death; and [whenever a person dies intestate, all of his estate shall vest but with the exception aforesaid] shall still be liable and subject in their hands to the payment of the debts of the intestate and the delinquent child support payments;  .

Revised Law

Sec. 101.052.  LIABILITY OF COMMUNITY PROPERTY FOR DEBTS OF DECEASED SPOUSE. (a) The community property subject to the sole or joint management, control, and disposition of a spouse during marriage continues to be subject to the liabilities of that spouse on death.

(b)  The interest that the deceased spouse owned in any other nonexempt community property passes to the deceased spouse's heirs or devisees charged with the debts that were enforceable against the deceased spouse before death.

(c)  This section does not prohibit the administration of community property under other provisions of this title relating to the administration of an estate. (Tex. Prob. Code, Secs. 155 (part), 156 (part).)

Source Law

Sec. 155.   Nothing in this part of this chapter prohibits the administration of community property under other provisions of this code relating to the administration of an estate.

Sec. 156.  The community property subject to the sole or joint management, control, and disposition of a spouse during marriage continues to be subject to the liabilities of that spouse upon death. In addition, the interest that the deceased spouse owned in any other nonexempt community property passes to his or her heirs or devisees charged with the debts which were enforceable against such deceased spouse prior to his or her death.

Revisor's Note

(1)  Section 155, Texas Probate Code, refers to "this part of this chapter," meaning Part 5, Chapter VI, Texas Probate Code. Subsections (a) and (b) of this section of the revised law are derived entirely from Section 156, Texas Probate Code, which is included in Part 5. The revised law substitutes "[t]his section" for "this part of this chapter" and does not reference the provisions revising other portions of Part 5 because this part of Section 155 is also revised in the chapter of this code that contains the revision of those other portions.

(2)  Section 155, Texas Probate Code, refers to "other provisions of this code relating to the administration of an estate." The reference to "of this code" in Section 155 means the Texas Probate Code. The revised law substitutes a reference to "this title" for the reference to "this code" because the provisions of the Texas Probate Code that relate to the administration of an estate are revised in Title 2 of this code, and this chapter is included in that title.

TLC: Estates and Guardianship Code Proposed Chapters

This web page is published by the Texas Legislative Council and was last updated January 6, 2009.