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Estates and Guardianship Code
Proposed Chapters
81C232(3) MDR

81C232(3) MDR

 

CHAPTER 304. PERSONS WHO MAY SERVE AS PERSONAL REPRESENTATIVES

Sec. 304.001.  ORDER OF PERSONS QUALIFIED TO SERVE AS

                 PERSONAL REPRESENTATIVE ................... 1

Sec. 304.002.  RENOUNCING RIGHT TO SERVE AS PERSONAL

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

Sec. 304.003.  PERSONS DISQUALIFIED TO SERVE AS

                 EXECUTOR OR ADMINISTRATOR ................. 3

CHAPTER 304. PERSONS WHO MAY SERVE AS PERSONAL REPRESENTATIVES

Revised Law

Sec. 304.001.  ORDER OF PERSONS QUALIFIED TO SERVE AS PERSONAL REPRESENTATIVE. (a) The court shall grant letters testamentary or of administration to persons qualified to act, in the following order:

(1)  the person named as executor in the decedent's will;

(2)  the decedent's surviving spouse;

(3)  the principal devisee of the decedent;

(4)  any devisee of the decedent;

(5)  the next of kin of the decedent;

(6)  a creditor of the decedent;

(7)  any person of good character residing in the county who applies for the letters; and

(8)  any other person who is not disqualified under Section 304.003.

(b)  For purposes of Subsection (a)(5), the decedent's next of kin:

(1)  is determined in accordance with order of descent, with the person nearest in order of descent first, and so on; and

(2)  includes a person and the person's descendants who legally adopted the decedent or who have been legally adopted by the decedent.

(c)  If applicants for letters testamentary or of administration are equally entitled to the letters, the court:

(1)  shall grant the letters to the applicant who, in the judgment of the court, is most likely to administer the estate advantageously; or

(2)  may grant the letters to two or more of those applicants. (Tex. Prob. Code, Sec. 77.)

Source Law

Sec. 77.  Letters testamentary or of administration shall be granted to persons who are qualified to act, in the following order:

(a)  To the person named as executor in the will of the deceased.

(b)  To the surviving husband or wife.

(c)  To the principal devisee or legatee of the testator.

(d)  To any devisee or legatee of the testator.

(e)  To the next of kin of the deceased, the nearest in order of descent first, and so on, and next of kin includes a person and his descendants who legally adopted the deceased or who have been legally adopted by the deceased.

(f)  To a creditor of the deceased.

(g)  To any person of good character residing in the county who applies therefor.

(h)  To any other person not disqualified under the following Section. When applicants are equally entitled, letters shall be granted to the applicant who, in the judgment of the court, is most likely to administer the estate advantageously, or they may be granted to any two or more of such applicants.

Revisor's Note

(1)  Sections 77(c) and (d), Texas Probate Code, refer to a "devisee or legatee" of a testator. The revised law omits the reference to "legatee" because Section 3(i), Texas Probate Code, revised as Section _________ of this code, provides that "devisee" includes a legatee.

(2)  Section 77(h), Texas Probate Code, refers to "any other person not disqualified under the following Section." The reference to "the following Section" is a reference to Section 78, Texas Probate Code, which is revised in this chapter as Section 304.003. The revised law is drafted accordingly.

Revised Law

Sec. 304.002.  RENOUNCING RIGHT TO SERVE AS PERSONAL REPRESENTATIVE. A decedent's surviving spouse, or, if there is no surviving spouse, the heirs or any one of the heirs of the decedent to the exclusion of any person not equally entitled to letters testamentary or of administration, may renounce the right to the letters in favor of another qualified person in open court or by a power of attorney authenticated and filed with the county clerk of the county where the application for the letters is filed. After the right to the letters has been renounced, the court may grant the letters to the other qualified person. (Tex. Prob. Code, Sec. 79.)

Source Law

Sec. 79.  The surviving husband or wife, or, if there be none, the heirs or any one of the heirs of the deceased to the exclusion of any person not equally entitled, may, in open court, or by power of attorney duly authenticated and filed with the county clerk of the county where the application is filed, renounce his right to letters testamentary or of administration in favor of another qualified person, and thereupon the court may grant letters to such person.

Revisor's Note

Section 79, Texas Probate Code, refers to a power of attorney that has been "duly authenticated" and filed with the county clerk. The revised law omits "duly" in this context because the word does not add to the clear meaning of the law. The requirement that the power of attorney be authenticated is sufficient to convey that the power of attorney must have met the requirements for authentication.

Revised Law

Sec. 304.003.  PERSONS DISQUALIFIED TO SERVE AS EXECUTOR OR ADMINISTRATOR. A person is not qualified to serve as an executor or administrator if the person is:

(1)  incapacitated;

(2)  a felon convicted under the laws of the United States or of any state of the United States unless, in accordance with law, the person has been pardoned or has had the person's civil rights restored;

(3)  a nonresident of this state who:

(A)  is a natural person or corporation; and

(B)  has not:

(i)  appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate; or

(ii)  had that appointment filed with the court;

(4)  a corporation not authorized to act as a fiduciary in this state; or

(5)  a person whom the court finds unsuitable. (Tex. Prob. Code, Sec. 78.)

Source Law

Sec. 78.  No person is qualified to serve as an executor or administrator who is:

(a)  An incapacitated person;

(b)  A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law;

(c)  A non-resident (natural person or corporation) of this State who has not appointed a resident agent to accept service of process in all actions or proceedings with respect to the estate, and caused such appointment to be filed with the court;

(d)  A corporation not authorized to act as a fiduciary in this State; or

(e)  A person whom the court finds unsuitable.

Revisor's Note

(1)  Section 78(b), Texas Probate Code, refers to the laws of "any state or territory of the United States, or of the District of Columbia." The references to any "territory" and to "the District of Columbia" are omitted from the revised law because under Section 311.005(7), Government Code (Code Construction Act), applicable to the revised law, "state," when referring to a part of the United States, is defined to include a district or territory of the United States.

(2)  Section 78(b), Texas Probate Code, refers to a person who has been "duly pardoned in accordance with law." The revised law omits "duly" in this context because the word does not add to the clear meaning of the law. The requirement that the person has been pardoned "in accordance with law" is sufficient to convey that the pardon must have met the legal requirements for a pardon.

TLC: Estates and Guardianship Code Proposed Chapters

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