Estate Planning Update -Texas Estates Code
The Estates Code went into effect as of January 1, 2014. The “old” Probate Code had been enacted in 1955. For many of us, change is a cause for concern. However, in this instance when you compare the Estates Code with the prior Probate Code there are a couple of things to note that should lower any anxiety.
First, the statutes for the most part have not changed--just merely the section numbers associated with the statutes. Second, the “old” Probate Code will continue to apply in some situations. For example, the Probate Code will apply to the construction of wills of decedents who died before 2014 and to certain transactions that occurred before 2014. However, The Estates Code applies to (1) all probate and guardianship estates in administration on January 1, 2014 and (2) to wills of decedents dying on or after on January 1, 2014. As one author has noted, “… the Texas Probate Code isn’t going to die; it’s just going to fade away.”
One item to highlight involves the form used for a statutory durable power of attorney. There is a change in the process to select the powers. Pursuant to the Estate Code section 752.051 form, the principal must initial the conferred powers. If the principal wants to grant all powers, he/she can initial once, on line N of the form. The principal, “may, but [does] not need to, cross out each power withheld.” This is a departure from the recent prior procedure of just deleting the powers that were not to be conferred pursuant to Probate Code section 490. Further, the agent should be aware when he/she accepts the authority granted by the power of attorney that a fiduciary duty exists. Pursuant to the revisions, the form sets out in detail the agents responsibilities and warns that the agent can be subject to civil and criminal liability if he/she violates those duties. If a durable power of attorney was executed prior to January 1, 2014 the powers would still be valid using the section 490 form and method.Feb 02, 2015