Texas: Avoid these Estates Code Form Blunders

Since 1955, the Texas Probate Code essentially has covered all of the laws pertaining to wills, estates, probate and guardianship. But this past January, the Texas Probate Code was incorporated into the Estates Code, and all forms were changed to reflect as much.

For a variety of reasons, which Bill Pargaman outlined in his Jan. 8 paper "The Story of the Texas Estates Code," our Legislature incorporated the Probate Code into a new code, the Texas Estates Code. The Legislature might have named the new code any variety of names, including "Estates and Guardianship Code" or "New Probate Code," but it ended up with the moniker of Estates Code. Most states have adopted the Uniform Probate Code, whose statutes usually refer to "Probate Code" in their titles.

Since the change to the Estates Code, judges in Harris County still occasionally have to advise attorneys that there is no longer a Probate Code and that they have made handwritten changes into the furnished orders to reflect correct references to the Estates Code. Of all of the things that can go wrong in the practice of law, this is a minor faux pas, yet it is easily remedied.

To avoid that slightly sheepish feeling, conduct a quick review of the relevant sections of the Estates Code and make changes in forms to reference the "Estates Code" rather than the "Probate Code." It is, however, not sufficient just to use a "Find/Replace" processing program to change "Probate" into "Estates" in one's forms, because everything has a new number and some of the old Probate Code sections have been split across multiple Estate Code sections. For example §45 in the old Probate Code is now Estates Code §201.003.

With the adoption of the Estates Code, the statutory durable power of attorney form was also changed in two important respects. Attorneys can find the form at Estates Code §752.051. The "new" form now requires the principal to select powers to be granted to the agent; therefore, the principal needs to initial either in front of each power to be granted or to select the catchall language under selection "(N)," which covers all powers.

This is exactly opposite from the manner in which authority was granted under the prior form which required that the principal had to cross out powers the principal did not want the agent to have.

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Avoid These Estates Code Form Blunders