Texas Estates Code 401.004 – Means of Establishing Distributee Consent
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(a) This section applies to the creation of an independent administration under Section 401.002 or 401.003.
(b) All distributees shall be served with citation and notice of the application for independent administration unless the distributee waives the issuance or service of citation or enters an appearance in court.
Terms Used In Texas Estates Code 401.004
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Court: means and includes:
(1) a county court in the exercise of its probate jurisdiction;
(2) a court created by statute and authorized to exercise original probate jurisdiction; and
(3) a district court exercising original probate jurisdiction in a contested matter. See Texas Estates Code 22.007 - Decedent: A deceased person.
- Distributee: means a person who is entitled to a part of the estate of a decedent under a lawful will or the statutes of descent and distribution. See Texas Estates Code 22.010
- Estate: means a decedent's property, as that property:
(1) exists originally and as the property changes in form by sale, reinvestment, or otherwise;
(2) is augmented by any accretions and other additions to the property, including any property to be distributed to the decedent's representative by the trustee of a trust that terminates on the decedent's death, and substitutions for the property; and
(3) is diminished by any decreases in or distributions from the property. See Texas Estates Code 22.012 - Executor: A male person named in a will to carry out the decedent
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Independent executor: means the personal representative of an estate under independent administration as provided by Chapter 401 and § 402. See Texas Estates Code 22.017
- Intestate: Dying without leaving a will.
- Life estate: A property interest limited in duration to the life of the individual holding the interest (life tenant).
- Minor: means a person younger than 18 years of age who:
(1) has never been married; and
(2) has not had the disabilities of minority removed for general purposes. See Texas Estates Code 22.022 - Person: includes a natural person and a corporation. See Texas Estates Code 22.027
- personal representative: include :
(1) an executor and independent executor;
(2) an administrator, independent administrator, and temporary administrator; and
(3) a successor to an executor or administrator listed in Subdivision (1) or (2). See Texas Estates Code 22.031 - Probate: Proving a will
- Property: means real and personal property. See Texas Government Code 311.005
- Remainderman: One entitled to the remainder of an estate after a particular reserved right or interest, such as a life tenancy, has expired.
- Testate: To die leaving a will.
- Trustee: A person or institution holding and administering property in trust.
(c) If a distributee is an incapacitated person, the guardian of the person of the distributee may consent to the creation of an independent administration on behalf of the distributee. If the probate court finds that either the granting of independent administration or the appointment of the person, firm, or corporation designated by the distributees as independent executor would not be in the best interest of the incapacitated person, then, notwithstanding anything to the contrary in Section 401.002 or 401.003, the court may not enter an order granting independent administration of the estate. If a distributee who is an incapacitated person has no guardian of the person, the probate court may appoint a guardian ad litem to act on behalf of the incapacitated person if the court considers such an appointment necessary to protect the interest of the distributees. Alternatively, if the distributee who is an incapacitated person is a minor and has no guardian of the person, the natural guardian or guardians of the minor may consent on the minor’s behalf if there is no conflict of interest between the minor and the natural guardian or guardians.
(d) If a trust is created in the decedent‘s will or if the decedent’s will devises property to a trustee as described by Section 254.001, the person or class of persons entitled to receive property outright from the trust on the decedent’s death and those first eligible to receive the income from the trust, when determined as if the trust were to be in existence on the date of the decedent’s death, shall, for the purposes of Section 401.002, be considered to be the distributee or distributees on behalf of the trust, and any other trust or trusts coming into existence on the termination of the trust, and are authorized to apply for independent administration on behalf of the trusts without the consent or agreement of the trustee or any other beneficiary of the trust, or the trustee or any beneficiary of any other trust which may come into existence on the termination of the trust. If a trust beneficiary who is considered to be a distributee under this subsection is an incapacitated person, the trustee or cotrustee may file the application or give the consent, provided that the trustee or cotrustee is not the person proposed to serve as the independent executor.
(e) If a life estate is created either in the decedent’s will or by law, the life tenant or life tenants, when determined as if the life estate were to commence on the date of the decedent’s death, shall, for the purposes of Section 401.002 or 401.003, be considered to be the distributee or distributees on behalf of the entire estate created, and are authorized to apply for independent administration on behalf of the estate without the consent or approval of any remainderman.
(f) If a decedent’s will contains a provision that a distributee must survive the decedent by a prescribed period of time in order to take under the decedent’s will, then, for the purposes of determining who shall be the distributee under Section 401.002 and under Subsection (c), it shall be presumed that the distributees living at the time of the filing of the application for probate of the decedent’s will survived the decedent by the prescribed period.
(g) In the case of all decedents, whether dying testate or intestate, for the purposes of determining who shall be the distributees under Section 401.002 or 401.003 and under Subsection (c), it shall be presumed that no distributee living at the time the application for independent administration is filed shall subsequently disclaim any portion of the distributee’s interest in the decedent’s estate.
(h) If a distributee of a decedent’s estate dies and if by virtue of the distributee’s death the distributee’s share of the decedent’s estate becomes payable to the distributee’s estate, the deceased distributee’s personal representative may consent to the independent administration of the decedent’s estate under Section 401.002 or 401.003 and under Subsection (c).