Texas Laws - Probate Code
CHAPTER XIII. GUARDIANSHIP
PART 4. ADMINISTRATION OF GUARDIANSHIP

SUBPART M. TAX-MOTIVATED, CHARITABLE, AND OTHER GIFTS (6369)(1-click HTML)

Without reference to the amendment of this section, this section was repealed by Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 3.02, eff. January 1, 2014. (6370)

Text of article effective until January 01, 2014 (6371)

Sec. 865. POWER TO MAKE CERTAIN GIFTS AND TRANSFERS. (a) On application of the guardian of the estate or any interested person and after the posting of notice, the court, after hearing, may enter an order that authorizes the guardian to apply the principal or income of the ward's estate that is not required for the support of the ward or the ward's family during the ward's lifetime toward the establishment of an estate plan for the purpose of minimizing income, estate, inheritance, or other taxes payable out of the ward's estate, or to transfer a portion of the ward's estate as necessary to qualify the ward for government benefits and only to the extent allowed by applicable state or federal laws, including rules, regarding those benefits, on a showing that the ward will probably remain incapacitated during the ward's lifetime. (6372)(1-click HTML)

On the ward's behalf, the court may authorize the guardian to make gifts or transfers described by this subsection, outright or in trust, of the ward's property to or for the benefit of: (6373)

(1) an organization to which charitable contributions may be made under the Internal Revenue Code and in which it is shown the ward would reasonably have an interest; (6374)

(2) the ward's spouse, descendant, or other person related to the ward by blood or marriage who are identifiable at the time of the order; (6375)

(3) a devisee under the ward's last validly executed will, trust, or other beneficial instrument if the instrument exists; and (6376)

(4) a person serving as guardian of the ward if the person is eligible under either Subdivision (2) or (3) of this subsection. (6377)

(b) The person making an application to the court under this section shall outline the proposed estate or other transfer plan and set forth all the benefits that are to be derived from the plan. The application must indicate that the planned disposition is consistent with the ward's intentions if the ward's intentions can be ascertained. If the ward's intentions cannot be ascertained, the ward will be presumed to favor reduction in the incidence of the various forms of taxation, the qualification for government benefits, and the partial distribution of the ward's estate as provided by this section. (6378)

(c) The court may appoint a guardian ad litem for the ward or any interested party at any stage of the proceedings if it is deemed advisable for the protection of the ward or the interested party. (6379)

(d) A subsequent modification of an approved plan may be made by similar application to the court. (6380)

(e) A person who makes an application to the court under this section shall mail notice of the application by certified mail to: (6381)

(1) all devisees under a will, trust, or other beneficial instrument relating to the ward's estate; (6382)

(2) the ward's spouse; (6383)

(3) the ward's dependents; and (6384)

(4) any other person as directed by the court. (6385)

(f) In an order entered under Subsection (a) of this section, the court may authorize the guardian to make gifts as provided by Subsection (a) of this section on an annual or other periodic basis without subsequent application to or order of the court if the court finds it to be in the best interest of the ward and the ward's estate. The court, on the court's own motion or on the motion of a person interested in the welfare of the ward, may modify or set aside an order entered under this subsection if the court finds that the ward's financial condition has changed in such a manner that authorizing the guardian to make gifts of the estate on a continuing basis is no longer in the best interest of the ward and the ward's estate. (6386)

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 77, Sec. 9, eff. Sept. 1, 1997. (6387)

Amended by: (6388)

Acts 2005, 79th Leg., Ch. 256, Sec. 1, eff. September 1, 2005. (6389)

Acts 2011, 82nd Leg., R.S., Ch. 823, Sec. 3.02, eff. January 1, 2014. (6390)

Acts 2011, 82nd Leg., R.S., Ch. 1085, Sec. 28, eff. September 1, 2011. (6391)

Acts 2011, 82nd Leg., R.S., Ch. 1085, Sec. 29, eff. September 1, 2011. (6392)

Text of article effective until January 01, 2014 (6393)

Sec. 865A. INSPECTION OF CERTAIN INSTRUMENT FOR ESTATE PLANNING PURPOSES. (a) On the filing of an application under Section 865 of this code, the guardian of the ward's estate may apply to the court for an order to seek an in camera inspection of a true copy of a will, codicil, trust, or other estate planning instrument of the ward as a means of obtaining access to the instrument for purposes of establishing an estate plan under Section 865 of this code. (6394)(1-click HTML)

(6395)

(b) An application filed under this section must: (6396)

(1) be sworn to by the guardian; (6397)

(2) list all of the instruments requested for inspection; and (6398)

(3) state one or more reasons supporting the necessity to inspect each requested instrument for the purpose described by Subsection (a) of this section. (6399)

(c) A person who files an application under this section shall send a copy of the application to: (6400)

(1) each person who has custody of an instrument listed in the application; (6401)

(2) the ward's spouse; (6402)

(3) the ward's dependents; (6403)

(4) all devisees under a will, trust, or other beneficial instrument relating to the ward's estate; and (6404)

(5) any other person as directed by the court. (6405)

(d) Notice required by Subsection (c) of this section must be delivered by certified mail to a person described by Subsection (c)(2), (3), (4), or (5) of this section and by registered or certified mail to a person described by Subsection (c)(1) of this section. After the 10th day after the date on which the applicant complies with the notice requirement, the applicant may request that a hearing be held on the application. Notice of the date, time, and place of the hearing must be given by the applicant to each person described by Subsection (c)(1) of this section when the court sets a date for a hearing on the application. (6406)

(e) After the conclusion of a hearing on the application and on a finding that there is good cause for an in camera inspection of a requested instrument, the court shall direct the person that has custody of the requested will, codicil, trust, or other estate planning instrument to deliver a true copy of the instrument to the court for in camera inspection only. After conducting an in camera review of the instrument, the court, if good cause exists, shall release all or part of the instrument to the applicant only for the purpose described by Subsection (a) of this section. (6407)

(f) The court may appoint a guardian ad litem for the ward or an interested party at any stage of the proceedings if it is considered advisable for the protection of the ward or the interested party. (6408)

(g) An attorney does not violate the attorney-client privilege solely by complying with a court order to release an instrument subject to this section. Notwithstanding Section 22.004, Government Code, the supreme court may not amend or adopt rules in conflict with this subsection. (6409)

Added by Acts 2001, 77th Leg., ch. 217, Sec. 16, eff. Sept. 1, 2001. (6410)

Text of article effective until January 01, 2014 (6411)

(1) designated corporations, trusts, or community chests, funds, or foundations, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes; or (6412)

(2) designated nonprofit federal, state, county, or municipal projects operated exclusively for public health or welfare. (6413)

(b) When an application is filed under this section, the county clerk shall immediately call the filing of the application to the attention of the judge of the court. The judge, by written order filed with the clerk, shall designate a day to hear the application. The application shall remain on file at least 10 days before the hearing is held. The judge may postpone or continue the hearing from time to time until the judge is satisfied concerning the application. (6414)

(c) On the conclusion of a hearing under this section, the court may enter an order authorizing the guardian to make a contribution from the income of the ward's estate to a particular donee designated in the application and order if the court is satisfied and finds from the evidence that: (6415)

(1) the amount of the proposed contribution stated in the application will probably not exceed 20 percent of the net income of the ward's estate for the current calendar year; (6416)

(2) the net income of the ward's estate for the current calendar year exceeds, or probably will exceed, $25,000; (6417)

(3) the full amount of the contribution, if made, will probably be deductible from the ward's gross income in determining the net income of the ward under applicable federal income tax laws and rules; (6418)

(4) the condition of the ward's estate justifies a contribution in the proposed amount; and (6419)

(5) the proposed contribution is reasonable in amount and is for a worthy cause. (6420)

Added by Acts 1993, 73rd Leg., ch. 957, Sec. 1, eff. Sept. 1, 1993. (6421)

  

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