7.12 Guardianship And Conservatorship Procedures

7.12.01

Estates and Guardianship Code Eff. 1-1-2014

HB 2502 (2009) by Harnett non substantive revision of probate code.

The bill enacts an Estates and Guardianship Code to replace the existing Probate Code.  The bill became effective June 2009 but the new code is not effective until January 1, 2014.

See also Texas Bulletin TX2015004 – LEGISLATIVE UPDATE 2015 Dealing with Guardianships

7.12.1

Guardianship - On Or After September 1, 1993

Law Applicable 
The Texas Estates Code provides that the provisions, rules and regulations which govern decedent's estates shall also govern guardianships, when the same are applicable and not inconsistent with other provisions of the Code. (Estates Code §1001.002). 
Generally The Estates Code provides for guardianships for incapacitated persons which includes, but is not limited to, the following:

  • Minors,
  • Adults who are unable to provide, or care for themselves, and,
  • Missing persons.

Generally, the Estates Code sections dealing with guardianships is divided into 3 broad areas:

Title 3 Guardianships and Related Procedures
Sections 1001-1106 deal with creation of guardianships
Sections 1151-1204 deal with administration of guardianships
Sections 1251-1356 deal with special types of guardianships

Title insurance primarily deals with sales of real property owned by wards.  Among the sections that are encountered most frequently are:        
             1351 sale of property of certain incapacitated persons
             1352 Mortgage of minor’s interest in residence homestead    
            1353 management and control of incapacitated spouse’s property
And the general rules dealing with sale of real property:
        
            356.201-203: sale of mortgaged property        
            356.251-655 sale of real property including       
                             Application for sale 356.201 et seq.    
                             Order of sale 356.256    
                             Terms of Sale 356.201   
                             Sale 356-401-502                
                             Order confirming sale 356.551-556    
                            Deeding the property 356.557-559

Nonresident - Appointment as Guardian Estates Code, §1252.051, provides for the appointment of a nonresident guardian for a nonresident minor or incapacitated person. Appointment of nonresident Guardian: A nonresident guardian may be appointed as guardian of a nonresident ward's estate in Texas. It is necessary that the nonresident guardian be serving in that capacity in another jurisdiction. It is necessary that the nonresident guardian file with their Texas application a full transcript of the proceedings from the other jurisdiction. Said transcript must be certified to and attested by the clerk or other person authorized under seal of court. There must be attached thereto the certificate of the judge of the foreign court to the effect that the attestation by the clerk is in due form. There is no necessity for notice or citation, before the order of appointment is entered. After qualification, the nonresident guardian must file an inventory and appraisement of the estate of the ward in Texas. (Estates Code 1552.051-.055)

Guardians Ad Litem Guardians ad litem may be appointed to represent interests of disabled, nonresidents, unborn or unascertained persons in Probate Proceedings. (Estates Code §§53.104 and 1054.007).  

Sale of Property of Minor Whose Interest is Under $100,000 Without Guardianship (Estates Code §1351.001) A natural or adoptive parent of a minor who is not a ward may apply to the court for an order to sell real or personal property of a minor without being appointed guardian when the value of the minor's interest in the property does not exceed $100,000. A sale of property pursuant to an order of the court under this provision is not subject to disaffirmance by the minor. The parent shall make application under oath to the court for the sale of the property. The application shall contain a legal description of the property, the name and interest of the minor, the name of the purchaser, a statement that the sale of the minor's interest is for cash and that all funds received will be used for the benefit of the minor. On due hearing, an order of sale will be entered by the court and the proceeds shall be paid into the registry of the court. (Estates Code §1351.004). NOTE: Funds may be withdrawn pursuant to §1351.005 of the Estates Code. 

Sale of Real Property Court must Order Sales (Estates Code §1158.001) Generally, no sale of any property of a ward is permitted without a court order. The court may order property sold for cash or on credit, at public auction or private sale, as it may consider most of the advantage of the estate.  

Contents of Application for Sale of Real Estate (Estates Code §1158.252) The application for the sale of the real estate must in writing and describe the property to be sold. It is to be accompanied by an exhibit, verified by affidavit under oath, showing the condition of the estate, including all facts tending to show the necessity or advisability of the sale.  

Order of Sale (Estates Code §1158.256) The court may either grant or deny the application dependent on whether it thinks the sale necessary or advisable. The court's order should specify: The property to be sold and its description How it is to be sold, whether at private sale and its purpose The necessity or advisability of the sale and its purpose That the general bond, if required, is sufficient or if insufficient, specify the increase. That the sale be made and the report returned in accordance with law The terms of the sale. 

Report of Sale (Estates Code §1158.551) The Report of Sale must be made within 30 days after the sale is made. It must show: Date of order of sale.

 

Order Confirming Sale (Estates Code §§1158.552 and 1158.556) After the expiration of 5 days from the filing of a Report of Sale, the court shall inquire into the sale, hear any evidence for or against it and determine the sufficiency of the bonds. If satisfied, the court enters an Order Confirming Sale which authorizes conveyance of the property.The court, if dissatisfied, may set the sale aside and order a new sale. The action of the court in confirming or disapproving a report of sale has the effect of a final judgment. 

Deed Conveys Title (Estates Code §1158.557) The deed given pursuant to the Order Confirming Sale must refer to and identify the decree of the court that confirmed the sale. Such deed vests in the purchaser all right, title, and interest of the estate to such property. 

Delivery of Deed (Estates Code §1158.558) After a sale is confirmed by the court and the terms of sale have been complied with by the purchaser, the guardian shall execute and deliver to the purchaser a proper deed conveying the property. If the sale is made partly on credit, the vendor's lien securing the purchase money note shall be expressly retained in said deed, and before actual delivery of said deed to purchaser, the purchaser shall execute and deliver to the guardian a vendor's lien note or notes and also a deed of trust on the property.Upon completion of the transaction, the guardian shall file and record the deed of trust in the appropriate records in the county where the land is situated.

Permissible Terms of Sale of Real Estate (Estates Code §1158.301) Real estate may be sold for cash or for part cash and part credit. In addition, if there is only an equity in the estate and an existing indebtedness, the equity may be sold either subject to such indebtedness or the purchaser may assume such indebtedness. This may be at public or private sale as the court deems appropriate.