ESTATES CODE - Title 2 - SUBTITLE F. WILLS

Link to law: http://www.statutes.legis.state.tx.us/Docs/ES/htm/ES.255.HTM
Published: 2015-07-01

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now
ESTATES CODE

TITLE 2. ESTATES OF DECEDENTS; DURABLE POWERS OF ATTORNEY

SUBTITLE F. WILLS

CHAPTER 255. CONSTRUCTION AND INTERPRETATION OF WILLS



SUBCHAPTER A. CERTAIN PERSONAL PROPERTY EXCLUDED FROM DEVISE OR LEGACY



Sec. 255.001. DEFINITIONS. In this subchapter:

(1) "Contents" means tangible personal property, other than titled personal property, found inside of or on a specifically devised item. The term includes clothing, pictures, furniture, coin collections, and other items of tangible personal property that:

(A) do not require a formal transfer of title; and

(B) are located in another item of tangible personal property such as a cedar chest or other furniture.

(2) "Titled personal property" includes all tangible personal property represented by a certificate of title, certificate of ownership, written label, marking, or designation that signifies ownership by a person. The term includes a motor vehicle, motor home, motorboat, or other similar property that requires a formal transfer of title.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.002. CERTAIN PERSONAL PROPERTY EXCLUDED FROM DEVISE OF REAL PROPERTY. A devise of real property does not include any personal property located on, or associated with, the real property or any contents of personal property located on the real property unless the will directs that the personal property or contents are included in the devise.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.003. CONTENTS EXCLUDED FROM LEGACY OF PERSONAL PROPERTY. A legacy of personal property does not include any contents of the property unless the will directs that the contents are included in the legacy.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



SUBCHAPTER B. SUCCESSION BY PRETERMITTED CHILD



Sec. 255.051. DEFINITION. In this subchapter, "pretermitted child" means a testator's child who is born or adopted:

(1) during the testator's lifetime or after the testator's death; and

(2) after the execution of the testator's will.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.052. APPLICABILITY AND CONSTRUCTION. (a) Sections 255.053 and 255.054 apply only to a pretermitted child who is not:

(1) mentioned in the testator's will;

(2) provided for in the testator's will; or

(3) otherwise provided for by the testator.

(b) For purposes of this subchapter, a child is provided for or a provision is made for a child if a disposition of property to or for the benefit of the pretermitted child, whether vested or contingent, is made:

(1) in the testator's will, including a devise to a trustee under Section 254.001; or

(2) outside the testator's will and is intended to take effect at the testator's death.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.053. SUCCESSION BY PRETERMITTED CHILD IF TESTATOR HAS LIVING CHILD AT WILL'S EXECUTION. (a) If no provision is made in the testator's last will for any child of the testator who is living when the testator executes the will, a pretermitted child succeeds to the portion of the testator's separate and community estate, other than any portion of the estate devised to the pretermitted child's other parent, to which the pretermitted child would have been entitled under Section 201.001 if the testator had died intestate without a surviving spouse, except as limited by Section 255.056.

(b) If a provision, whether vested or contingent, is made in the testator's last will for one or more children of the testator who are living when the testator executes the will, a pretermitted child is entitled only to a portion of the disposition made to children under the will that is equal to the portion the child would have received if the testator had:

(1) included all of the testator's pretermitted children with the children on whom benefits were conferred under the will; and

(2) given an equal share of those benefits to each child.

(c) To the extent feasible, the interest in the testator's estate to which the pretermitted child is entitled under Subsection (b) must be of the same character, whether an equitable or legal life estate or in fee, as the interest that the testator conferred on the testator's children under the will.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.27, eff. January 1, 2014.



Sec. 255.054. SUCCESSION BY PRETERMITTED CHILD IF TESTATOR HAS NO LIVING CHILD AT WILL'S EXECUTION. If a testator has no child living when the testator executes the testator's last will, a pretermitted child succeeds to the portion of the testator's separate and community estate, other than any portion of the estate devised to the pretermitted child's other parent, to which the pretermitted child would have been entitled under Section 201.001 if the testator had died intestate without a surviving spouse, except as limited by Section 255.056.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.28, eff. January 1, 2014.



Sec. 255.055. RATABLE RECOVERY BY PRETERMITTED CHILD FROM PORTIONS PASSING TO OTHER BENEFICIARIES. (a) A pretermitted child may recover the share of the testator's estate to which the child is entitled from the testator's other children under Section 255.053(b) or from the testamentary beneficiaries under Sections 255.053(a) and 255.054, other than the pretermitted child's other parent, ratably, out of the portions of the estate passing to those persons under the will.

(b) In abating the interests of the beneficiaries described by Subsection (a), the character of the testamentary plan adopted by the testator must be preserved to the maximum extent possible.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.056. LIMITATION ON REDUCTION OF ESTATE PASSING TO SURVIVING SPOUSE. If a pretermitted child's other parent is not the surviving spouse of the testator, the portion of the testator's estate to which the pretermitted child is entitled under Section 255.053(a) or 255.054 may not reduce the portion of the testator's estate passing to the testator's surviving spouse by more than one-half.

Added by Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.29, eff. January 1, 2014.



SUBCHAPTER C. LIFETIME GIFTS AS SATISFACTION OF DEVISE



Sec. 255.101. CERTAIN LIFETIME GIFTS CONSIDERED SATISFACTION OF DEVISE. Property that a testator gives to a person during the testator's lifetime is considered a satisfaction, either wholly or partly, of a devise to the person if:

(1) the testator's will provides for deduction of the lifetime gift from the devise;

(2) the testator declares in a contemporaneous writing that the lifetime gift is to be deducted from, or is in satisfaction of, the devise; or

(3) the devisee acknowledges in writing that the lifetime gift is in satisfaction of the devise.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.102. VALUATION OF PROPERTY. Property given in partial satisfaction of a devise shall be valued as of the earlier of:

(1) the date the devisee acquires possession of or enjoys the property; or

(2) the date of the testator's death.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



SUBCHAPTER D. FAILURE OF DEVISE; DISPOSITION OF PROPERTY TO DEVISEE WHO PREDECEASES TESTATOR



Sec. 255.151. APPLICABILITY OF SUBCHAPTER. This subchapter applies unless the testator's last will and testament provides otherwise. For example, a devise in the testator's will stating "to my surviving children" or "to such of my children as shall survive me" prevents the application of Sections 255.153 and 255.154.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.152. FAILURE OF DEVISE; EFFECT ON RESIDUARY ESTATE. (a) Except as provided by Sections 255.153 and 255.154, if a devise, other than a residuary devise, fails for any reason, the devise becomes a part of the residuary estate.

(b) Except as provided by Sections 255.153 and 255.154, if the residuary estate is devised to two or more persons and the share of one of the residuary devisees fails for any reason, that residuary devisee's share passes to the other residuary devisees, in proportion to the residuary devisee's interest in the residuary estate.

(c) Except as provided by Sections 255.153 and 255.154, the residuary estate passes as if the testator had died intestate if all residuary devisees:

(1) are deceased at the time the testator's will is executed;

(2) fail to survive the testator; or

(3) are treated as if the residuary devisees predeceased the testator.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.153. DISPOSITION OF PROPERTY TO CERTAIN DEVISEES WHO PREDECEASE TESTATOR. (a) If a devisee who is a descendant of the testator or a descendant of a testator's parent is deceased at the time the will is executed, fails to survive the testator, or is treated as if the devisee predeceased the testator by Chapter 121 or otherwise, the descendants of the devisee who survived the testator by 120 hours take the devised property in place of the devisee.

(b) Devised property to which Subsection (a) applies shall be divided into the number of shares equal to the total number of surviving descendants in the nearest degree of kinship to the devisee and deceased persons in the same degree of kinship to the devisee whose descendants survived the testator. Each surviving descendant in the nearest degree of kinship to the devisee receives one share, and the share of each deceased person in the same degree of kinship to the devisee whose descendants survived the testator is divided among the descendants by representation.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.154. DEVISEE UNDER CLASS GIFT. For purposes of this subchapter, a person who would have been a devisee under a class gift if the person had survived the testator is treated as a devisee unless the person died before the date the will was executed.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



SUBCHAPTER E. WILL PROVISION FOR MANAGEMENT OF SEPARATE PROPERTY BY SURVIVING SPOUSE



SUBCHAPTER F. DEVISE OF SECURITIES



Sec. 255.251. DEFINITIONS. In this subchapter:

(1) "Securities" has the meaning assigned by Section 4, The Securities Act (Article 581-4, Vernon's Texas Civil Statutes).

(2) "Stock" means securities.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.252. INCREASE IN SECURITIES; ACCESSIONS. Unless the will of a testator clearly provides otherwise, a devise of securities that are owned by the testator on the date the will is executed includes the following additional securities subsequently acquired by the testator as a result of the testator's ownership of the devised securities:

(1) securities of the same organization acquired because of an action initiated by the organization or any successor, related, or acquiring organization, including stock splits, stock dividends, and new issues of stock acquired in a reorganization, redemption, or exchange, other than securities acquired through the exercise of purchase options or through a plan of reinvestment; and

(2) securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization, including stock splits, stock dividends, and new issues of stock acquired in a reorganization, redemption, or exchange, other than securities acquired through the exercise of purchase options or through a plan of reinvestment.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.253. CASH DISTRIBUTION NOT INCLUDED IN DEVISE. Unless the will of a testator clearly provides otherwise, a devise of securities does not include a cash distribution relating to the securities that accrues before the testator's death, regardless of whether the distribution is paid before the testator's death.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



SUBCHAPTER G. EXONERATION OF DEBTS SECURED BY SPECIFIC DEVISES



Sec. 255.301. NO RIGHT TO EXONERATION OF DEBTS. Except as provided by Section 255.302, a specific devise passes to the devisee subject to each debt secured by the property that exists on the date of the testator's death, and the devisee is not entitled to exoneration from the testator's estate for payment of the debt.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.302. EXCEPTION. A specific devise does not pass to the devisee subject to a debt described by Section 255.301 if the will in which the devise is made specifically states that the devise passes without being subject to the debt. A general provision in the will stating that debts are to be paid is not a specific statement for purposes of this section.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



Sec. 255.303. RIGHTS OF CERTAIN CREDITORS AND OTHER PERSONS. (a) Section 255.301 does not affect the rights of creditors provided under this title or the rights of other persons or entities provided under Chapters 102 and 353.

(b) A debt described by Section 255.301 that a creditor elects to have allowed and approved as a matured secured claim shall be paid in accordance with Sections 355.153(b), (c), (d), and (e).

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.



SUBCHAPTER H. EXERCISE OF POWER OF APPOINTMENT THROUGH WILL



Sec. 255.351. EXERCISE OF POWER OF APPOINTMENT THROUGH WILL. A testator may not exercise a power of appointment through a residuary clause in the testator's will or through a will providing for general disposition of all of the testator's property unless:

(1) the testator makes a specific reference to the power in the will; or

(2) there is some other indication in writing that the testator intended to include the property subject to the power in the will.

Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.