Texas Probate Code
CHAPTER VIII. PROCEEDINGS DURING ADMINISTRATIONCode Resources
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PROBATE CODE CHAPTER VIII. PROCEEDINGS DURING ADMINISTRATION PART 1. INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS § 248. APPOINTMENT OF APPRAISERS.Text of § 248 as amended by Acts 2005, 79th Leg., ch. 701. At any time after the grant of letters testamentary or of administration, the court for good cause on its own motion or on the motion of an interested party shall appoint not less than one nor more than three disinterested persons, citizens of the county in which letters were granted, to appraise the property of the estate. In such event and when part of the estate is situated in a county other than the county in which letters were granted, if the court shall deem necessary it may appoint not less than one nor more than three disinterested persons, citizens of the county where such part of the estate is situated, to appraise the property of the estate situated therein. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 1815, ch. 697, § 2, eff. Aug. 28, 1967; Acts 1993, 73rd Leg., ch. 957, § 44, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 765, § 2, eff. June 17, 2005. For text of § 248 as amended by Acts 2005, 79th Leg., ch. 765, see § 248, post. § 248. APPOINTMENT OF APPRAISERS.Text of § 248 as amended by Acts 2005, 79th Leg., ch. 765. At any time after the grant of letters testamentary or of administration and on its own motion or on the motion of an interested person, the court for good cause shown shall appoint not less than one nor more than three disinterested persons, citizens of the county in which letters were granted, to appraise the property of the estate. In such event and when part of the estate is situated in a county other than the county in which letters were granted, if the court shall deem necessary it may appoint not less than one nor more than three disinterested persons, citizens of the county where such part of the estate is situated, to appraise the property of the estate situated therein. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 1815, ch. 697, § 2, eff. Aug. 28, 1967; Acts 1993, 73rd Leg., ch. 957, § 44, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 701, § 1, eff. Sept. 1, 2005. For text of § 248 as amended by Acts 2005, 79th Leg., ch. 701, see § 248, ante. § 249. FAILURE OF APPRAISERS TO SERVE. If any appraiser so appointed shall fail or refuse to act, the court shall by a like order or orders remove such appraiser and appoint another appraiser or appraisers, as the case shall require. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 1816, ch. 697, § 3, eff. Aug. 28, 1967. § 250. INVENTORY AND APPRAISEMENT. Within ninety days after his qualification, unless a longer time shall be granted by the court, the representative shall file with the clerk of court a verified, full and detailed inventory, in one written instrument, of all the property of such estate which has come to his possession or knowledge, which inventory shall include: (a) all real property of the estate situated in the State of Texas; (b) all personal property of the estate wherever situated. The representative shall set out in the inventory his appraisement of the fair market value of each item thereof as of the date of death in the case of grant of letters testamentary or of administration, as the case may be; provided that if the court shall appoint an appraiser or appraisers of the estate, the representative shall determine the fair market value of each item of the inventory with the assistance of such appraiser or appraisers and shall set out in the inventory such appraisement. The inventory shall specify what portion of the property, if any, is separate property and what portion, if any, is community property. If any property is owned in common with others, the interest owned by the estate shall be shown, together with the names and relationship, if known, of co-owners. Such inventory, when approved by the court and duly filed with the clerk of court, shall constitute for all purposes the inventory and appraisement of the estate referred to in this Code. The court for good cause shown may require the filing of the inventory and appraisement at a time prior to ninety days after the qualification of the representative. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 1816, ch. 697, § 4, eff. Aug. 28, 1967; Acts 1993, 73rd Leg., ch. 957, § 45, eff. Sept. 1, 1993. § 251. LIST OF CLAIMS. There shall also be made out and attached to said inventory a full and complete list of all claims due or owing to the estate, which shall state: (a) The name of each person indebted to the estate and his address when known. (b) The nature of such debt, whether by note, bill, bond, or other written obligation, or by account or verbal contract. (c) The date of such indebtedness, and the date when the same was or will be due. (d) The amount of each claim, the rate of interest thereon, and time for which the same bears interest. (e) In the case of decedent's estate, which of such claims are separate property and which are of the community. (f) What portion of the claims, if any, is held in common with others, giving the names and the relationships, if any, of other part owners, and the interest of the estate therein. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 252. AFFIDAVIT TO BE ATTACHED. The representative of the estate shall also attach to such inventory and list of claims his affidavit subscribed and sworn to before an officer in the county authorized by law to administer oaths, that the said inventory and list of claims are a true and complete statement of the property and claims of the estate that have come to his knowledge. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 253. FEES OF APPRAISERS. Each appraiser appointed by the court, as herein authorized, shall be entitled to receive a minimum compensation of Five Dollars ($5) per day, payable out of the estate, for each day that he actually serves in performance of his duties as such. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1957, 55th Leg., p. 53, ch. 31, § 9. § 255. ACTION BY THE COURT. Upon return of the inventory, appraisement, and list of claims, the judge shall examine and approve, or disapprove, them, as follows: (a) Order of Approval. Should the judge approve the inventory, appraisement, and list of claims, he shall issue an order to that effect. (b) Order of Disapproval. Should the judge not approve the inventory, appraisement, or list of claims, or any of them, an order to that effect shall be entered, and it shall further require the return of another inventory, appraisement, and list of claims, or whichever of them is disapproved, within a time specified in such order, not to exceed twenty days from the date of the order; and the judge may also, if deemed necessary, appoint new appraisers. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 256. DISCOVERY OF ADDITIONAL PROPERTY. If, after the filing of the inventory and appraisement, property or claims not included in the inventory shall come to the possession or knowledge of the representative, he shall forthwith file with the clerk of court a verified, full and detailed supplemental inventory and appraisement. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1967, 60th Leg., p. 1816, ch. 697, § 5, eff. Aug. 28, 1967. § 257. ADDITIONAL INVENTORY OR LIST OF CLAIMS REQUIRED BY COURT. Any representative of an estate, on the written complaint of any interested person that property or claims of the estate have not been included in the inventory and list of claims filed, shall be cited to appear before the court in which the cause is pending and show cause why he should not be required to make and return an additional inventory or list of claims, or both. After hearing such complaint, and being satisfied of the truth thereof, the court shall enter its order requiring such additional inventory or list of claims, or both, to be made and returned in like manner as original inventories, and within such time, not to exceed twenty days, from the date of said order, as may be fixed by the court, but to include only property or claims theretofore not inventoried or listed. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 258. CORRECTION REQUIRED WHEN INVENTORY, APPRAISEMENT, OR LIST OF CLAIMS ERRONEOUS OR UNJUST. Any person interested in an estate who deems an inventory, appraisement, or list of claims returned therein erroneous or unjust in any particular may file a complaint in writing setting forth and pointing out the alleged erroneous or unjust items, and cause the representative to be cited to appear before the court and show cause why such errors should not be corrected. If, upon the hearing of such complaint, the court be satisfied from the evidence that the inventory, appraisement, or list of claims is erroneous or unjust in any particular as alleged in the complaint, an order shall be entered specifying the erroneous or unjust items and the corrections to be made, and appointing appraisers to make a new appraisement correcting such erroneous or unjust items and requiring the return of said new appraisement within twenty days from the date of the order. The court may also, on its own motion or that of the personal representative of the estate, have a new appraisal made for the purposes above set out. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 259. EFFECT OF REAPPRAISEMENT. When any reappraisement is made, returned, and approved by the court, it shall stand in place of the original appraisement. Not more than one reappraisement shall be made, but any person interested in the estate may object to the reappraisement either before or after it is approved, and if the court finds that the reappraisement is erroneous or unjust, the court shall appraise the property upon the basis of the evidence before it. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 260. FAILURE OF JOINT PERSONAL REPRESENTATIVES TO RETURN AN INVENTORY, APPRAISEMENT, AND LIST OF CLAIMS. If there be more than one representative qualified as such, any one or more of them, on the neglect of the others, may make and return an inventory and appraisement and list of claims; and the representative so neglecting shall not thereafter interfere with the estate or have any power over same; but the representative so returning shall have the whole administration, unless, within sixty days after the return, the delinquent or delinquents shall assign to the court in writing and under oath a reasonable excuse which the court may deem satisfactory; and if no excuse is filed or if the excuse filed is not deemed sufficient, the court shall enter an order removing any and all such delinquents and revoking their letters. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 261. USE OF INVENTORIES, APPRAISEMENTS, AND LISTS OF CLAIMS AS EVIDENCE. All inventories, appraisements, and lists of claims which have been taken, returned, and approved in accordance with law, or the record thereof, or copies of either the originals or the record thereof, duly certified under the seal of the county court affixed by the clerk, may be given in evidence in any of the courts of this State in any suit by or against the representative of the estate, but shall not be conclusive for or against him, if it be shown that any property or claims of the estate are not shown therein, or that the value of the property or claims of the estate actually was in excess of that shown in the appraisement and list of claims. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.PART 2. WITHDRAWING ESTATES OF DECEASED PERSONS FROM ADMINISTRATION § 262. EXECUTOR OR ADMINISTRATOR REQUIRED TO REPORT ON CONDITION OF ESTATE. At any time after the return of inventory, appraisement, and list of claims of a deceased person, any one entitled to a portion of the estate may, by a written complaint filed in the court in which such case is pending, cause the executor or administrator of the estate to be cited to appear and render under oath an exhibit of the condition of the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 263. BOND REQUIRED TO WITHDRAW ESTATE FROM ADMINISTRATION. When the executor or administrator has rendered the required exhibit, the persons entitled to such estate, or any of them, or any persons for them, may execute and deliver to the court a bond payable to the judge, and his successors in office, to be approved by the court, for an amount equal to at least double the gross appraised value of the estate as shown by the appraisement and list of claims returned, conditioned that the persons who execute such bond shall pay all the debts against the estate not paid that have been or shall be allowed by the executor or administrator and approved by the court, or that have been or shall be established by suit against said estate, and will pay to the executor or administrator any balance that shall be found to be due him by the judgment of the court on his exhibit. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 264. COURT'S ORDER. When such bond has been given and approved, the court shall thereupon enter an order directing and requiring the executor or administrator to deliver forthwith to all persons entitled to any portion of the estate the portion or portions of such estate to which they are entitled. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 265. ORDER OF DISCHARGE. When an estate has been so withdrawn from further administration, an order shall be entered discharging the executor or administrator and declaring the administration closed. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 266. LIEN ON PROPERTY OF ESTATE WITHDRAWN FROM ADMINISTRATION. A lien shall exist on all of the estate withdrawn from administration in the hands of the distributees, and those claiming under them with notice of such lien, to secure the ultimate payment of the aforesaid bond and of the debts and claims secured thereby. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 267. PARTITION OF ESTATE WITHDRAWN FROM ADMINISTRATION. Any person entitled to any portion of the estate withdrawn from further administration may, on written application to the court, cause a partition and distribution to be made among the persons entitled thereto, in accordance with the provisions of this Code pertaining to the partition and distribution of estates. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 268. CREDITORS MAY SUE ON BOND. Any creditor of an estate withdrawn from administration whose debt or claim is unpaid and is not barred by limitation shall have the right to sue on the bond in his own name, and shall be entitled to judgment thereon for such debt or claim as he shall establish against the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 269. CREDITORS MAY SUE DISTRIBUTEES. Any creditor of an estate withdrawn from administration whose debt or claim is unpaid and is not barred by limitation may sue any distributee who has received any of the estate, or he may sue all the distributees together, but no one of such distributees shall be liable beyond his just proportion according to the amount of the estate he shall have received in the distribution. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.PART 3. SETTING APART HOMESTEAD AND OTHER EXEMPT PROPERTY, AND FIXING THE FAMILY ALLOWANCE § 270. LIABILITY OF HOMESTEAD FOR DEBTS. The homestead shall not be liable for the payment of any of the debts of the estate, except for: (1) the purchase money thereof; (2) the taxes due thereon; (3) work and material used in constructing improvements thereon if the requirements of Section 50(a)(5), Article XVI, Texas Constitution, are met; (4) an owelty of partition imposed against the entirety of the property by court order or by a written agreement of the parties to the partition, including a debt of one spouse in favor of the other spouse resulting from a division or an award of a family homestead in a divorce proceeding; (5) the refinance of a lien against a homestead, including a federal tax lien resulting from the tax debt of both spouses, if the homestead is a family homestead, or from the tax debt of the decedent; (6) an extension of credit on the homestead if the requirements of Section 50(a)(6), Article XVI, Texas Constitution, are met; or (7) a reverse mortgage. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 35, ch. 24, § 1, eff. Aug. 27, 1979; Acts 1999, 76th Leg., ch. 487, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 855, § 9, eff. Sept. 1, 1999. § 271. EXEMPT PROPERTY TO BE SET APART. (a) Unless an affidavit is filed under Subsection (b) of this section, immediately after the inventory, appraisement, and list of claims have been approved, the court shall, by order, set apart: (1) the homestead for the use and benefit of the surviving spouse and minor children; and (2) all other property of the estate that is exempt from execution or forced sale by the constitution and laws of this state for the use and benefit of the surviving spouse and minor children and unmarried children remaining with the family of the deceased. (b) Before the approval of the inventory, appraisement, and list of claims: (1) a surviving spouse or any person who is authorized to act on behalf of minor children of the deceased may apply to the court to have exempt property, including the homestead, set aside by filing an application and a verified affidavit listing all of the property that the applicant claims is exempt; and (2) any unmarried children remaining with the family of the deceased may apply to the court to have all exempt property other than the homestead set aside by filing an application and a verified affidavit listing all of the other property that the applicant claims is exempt. (c) An applicant under Subsection (b) of this section bears the burden of proof by a preponderance of the evidence at any hearing on the application. The court shall set aside property of the decedent's estate that the court finds is exempt. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 35, ch. 24, § 2, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 846, § 18, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 551, § 4, eff. Sept. 1, 2005. § 272. TO WHOM DELIVERED. The exempt property set apart to the surviving spouse and children shall be delivered by the executor or administrator without delay as follows: (a) f there be a surviving spouse and no children, or if the children be the children of the surviving spouse, the whole of such property shall be delivered to the surviving spouse. (b) If there be children and no surviving spouse, such property, except the homestead, shall be delivered to such children if they be of lawful age, or to their guardian if they be minors. (c) f there be children of the deceased of whom the surviving spouse is not the parent, the share of such children in such exempted property, except the homestead, shall be delivered to such children if they be of lawful age, or to their guardian, if they be minors. (d) n all cases, the homestead shall be delivered to the surviving spouse, if there be one, and if there be no surviving spouse, to the guardian of the minor children. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 35, ch. 24, § 3, eff. Aug. 27, 1979. Amended by Acts 2005, 79th Leg., ch. 551, § 5, eff. Sept. 1, 2005. § 273. ALLOWANCE IN LIEU OF EXEMPT PROPERTY. In case there should not be among the effects of the deceased all or any of the specific articles exempted from execution or forced sale by the Constitution and laws of this state, the court shall make a reasonable allowance in lieu thereof, to be paid to such surviving spouse and children, or such of them as there are, as hereinafter provided. The allowance in lieu of a homestead shall in no case exceed $15,000 and the allowance for other exempted property shall in no case exceed $5,000, exclusive of the allowance for the support of the surviving spouse and minor children which is hereinafter provided for. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1977, 65th Leg., p. 351, ch. 172, § 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 35, ch. 24, § 4, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 846, § 19, eff. Sept. 1, 1993. § 274. HOW ALLOWANCE PAID. The allowance made in lieu of any of the exempted property shall be paid either in money out of the funds of the estate that come to the hands of the executor or administrator, or in any property of the deceased that such surviving spouse or children, if they be of lawful age, or their guardian if they be minors, shall choose to take at the appraisement, or a part thereof, or both, as they shall select; provided, however, that property specifically bequeathed or devised to another may be so taken, or may be sold to raise funds for the allowance as hereinafter provided, only if the other available property shall be insufficient to provide the allowance. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 36, ch. 24, § 5, eff. Aug. 27, 1979. § 275. TO WHOM ALLOWANCE PAID. The allowance in lieu of exempt property shall be paid by the executor or administrator, as follows: (a) If there be a surviving spouse and no children, or if all the children be the children of the surviving spouse, the whole shall be paid to such surviving spouse. (b) If there be children and no surviving spouse, the whole shall be paid to and equally divided among them if they be of lawful age, but if any of such children are minors, their shares shall be paid to their guardian or guardians. (c) If there be a surviving spouse, and children of the deceased, some of whom are not children of the surviving spouse, the surviving spouse shall receive one-half of the whole, plus the shares of the children of whom the survivor is the parent, and the remaining shares shall be paid to the children of whom the survivor is not the parent, or, if they are minors, to their guardian. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 36, ch. 24, § 6, eff. Aug. 27, 1979. § 276. SALE TO RAISE ALLOWANCE. If there be no property of the deceased that such surviving spouse or children are willing to take for such allowance, or not a sufficiency, and there be no funds, or not sufficient funds, of the estate in the hands of such executor or administrator to pay such allowance, or any part thereof, the court, on the application in writing of such surviving spouse and children, shall order a sale of so much of the estate for cash as will be sufficient to raise the amount of such allowance, or a part thereof, as the case requires. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 36, ch. 24, § 7, eff. Aug. 27, 1979. § 277. PREFERENCE OF LIENS. If property upon which there is a valid subsisting lien or encumbrance shall be set apart to the surviving spouse or children as exempt property, or appropriated to make up allowances made in lieu of exempt property or for the support of the surviving spouse or children, the debts secured by such lien shall, if necessity requires, be either paid or continued as against such property. This provision applies to all estates, whether solvent or insolvent. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 36, ch. 24, § 8, eff. Aug. 27, 1979. § 278. WHEN ESTATE IS SOLVENT. If, upon a final settlement of the estate, it shall appear that the same is solvent, the exempted property, except the homestead or any allowance in lieu thereof, shall be subject to partition and distribution among the heirs and distributees of such estate in like manner as the other property of the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 279. WHEN ESTATE IS INSOLVENT. Should the estate, upon final settlement, prove to be insolvent, the title of the surviving spouse and children to all the property and allowances set apart or paid to them under the provisions of this Code shall be absolute, and shall not be taken for any of the debts of the estate except as hereinafter provided. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 37, ch. 24, § 9, eff. Aug. 27, 1979. § 280. EXEMPT PROPERTY NOT CONSIDERED IN DETERMINING SOLVENCY. In ascertaining whether an estate is solvent or insolvent, the exempt property set apart to the surviving spouse or children, or the allowance in lieu thereof, and the family allowance hereinafter provided for, shall not be estimated or considered as assets of the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 37, ch. 24, § 10, eff. Aug. 27, 1979. § 281. EXEMPT PROPERTY LIABLE FOR CERTAIN DEBTS. The exempt property, other than the homestead or any allowance made in lieu thereof, shall be liable for the payment of Class 1 claims, but such property shall not be liable for any other debts of the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1997, 75th Leg., ch. 1302, § 10, eff. Sept. 1, 1997. § 282. NATURE OF HOMESTEAD PROPERTY IMMATERIAL. The homestead rights of the surviving spouse and children of the deceased are the same whether the homestead be the separate property of the deceased or community property between the surviving spouse and the deceased, and the respective interests of such surviving spouse and children shall be the same in one case as in the other. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 37, ch. 24, § 11, eff. Aug. 27, 1979. § 283. HOMESTEAD RIGHTS OF SURVIVING SPOUSE. On the death of the husband or wife, leaving a spouse surviving, the homestead shall descend and vest in like manner as other real property of the deceased and shall be governed by the same laws of descent and distribution. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 37, ch. 24, § 12, eff. Aug. 27, 1979. § 284. WHEN HOMESTEAD NOT PARTITIONED. The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving spouse, or so long as the survivor elects to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased is permitted, under the order of the proper court having jurisdiction, to use and occupy the same. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 37, ch. 24, § 13, eff. Aug. 27, 1979. § 285. WHEN HOMESTEAD CAN BE PARTITIONED. When the surviving spouse dies or sells his or her interest in the homestead, or elects no longer to use or occupy the same as a homestead, or when the proper court no longer permits the guardian of the minor children to use and occupy the same as a homestead, it may be partitioned among the respective owners thereof in like manner as other property held in common. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 37, ch. 24, § 14, eff. Aug. 27, 1979. § 286. FAMILY ALLOWANCE TO SURVIVING SPOUSES AND MINORS. (a) Unless an affidavit is filed under Subsection (b) of this section, immediately after the inventory, appraisement, and list of claims have been approved, the court shall fix a family allowance for the support of the surviving spouse and minor children of the deceased. (b) Before the approval of the inventory, appraisement, and list of claims, a surviving spouse or any person who is authorized to act on behalf of minor children of the deceased may apply to the court to have the court fix the family allowance by filing an application and a verified affidavit describing the amount necessary for the maintenance of the surviving spouse and minor children for one year after the date of the death of the decedent and describing the spouse's separate property and any property that minor children have in their own right. The applicant bears the burden of proof by a preponderance of the evidence at any hearing on the application. The court shall fix a family allowance for the support of the surviving spouse and minor children of the deceased. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 38, ch. 24, § 15, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 846, § 20, eff. Sept. 1, 1993. § 287. AMOUNT OF FAMILY ALLOWANCE. Such allowance shall be of an amount sufficient for the maintenance of such surviving spouse and minor children for one year from the time of the death of the testator or intestate. The allowance shall be fixed with regard to the facts or circumstances then existing and those anticipated to exist during the first year after such death. The allowance may be paid either in a lump sum or in installments, as the court shall order. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 38, ch. 24, § 16, eff. Aug. 27, 1979. § 288. WHEN FAMILY ALLOWANCE NOT MADE. No such allowance shall be made for the surviving spouse when the survivor has separate property adequate to the survivor's maintenance; nor shall such allowance be made for the minor children when they have property in their own right adequate to their maintenance. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 38, ch. 24, § 17, eff. Aug. 27, 1979. § 289. ORDER FIXING FAMILY ALLOWANCE. When an allowance has been fixed, an order shall be entered stating the amount thereof, providing how the same shall be payable, and directing the executor or administrator to pay the same in accordance with law. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 290. FAMILY ALLOWANCE PREFERRED. The family allowance made for the support of the surviving spouse and minor children of the deceased shall be paid in preference to all other debts or charges against the estate, except Class 1 claims. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 38, ch. 24, § 18, eff. Aug. 27, 1979; Acts 1997, 75th Leg., ch. 1302, § 11, eff. Sept. 1, 1997. § 291. TO WHOM FAMILY ALLOWANCE PAID. The executor or administrator shall apportion and pay the family allowance: (a) To the surviving spouse, if there be one, for the use of the survivor and the minor children, if such children be the survivor's. (b) If the surviving spouse is not the parent of such minor children, or of some of them, the portion of such allowance necessary for the support of such minor child or children of which the survivor is not the parent shall be paid to the guardian or guardians of such child or children. (c) If there be no surviving spouse, the allowance to the minor child or children shall be paid to the guardian or guardians of such minor child or children. (d) If there be a surviving spouse and no minor child or children, the entire allowance shall be paid to the surviving spouse. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 38, ch. 24, § 19, eff. Aug. 27, 1979. § 292. MAY TAKE PROPERTY FOR FAMILY ALLOWANCE. The surviving spouse, or the guardian of the minor children, as the case may be, shall have the right to take in payment of such allowance, or any part thereof, any of the personal property of the estate at its appraised value as shown by the appraisement; provided, however, that property specifically devised or bequeathed to another may be so taken, or may be sold to raise funds for the allowance as hereinafter provided, only if the other available property shall be insufficient to provide the allowance. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 39, ch. 24, § 20, eff. Aug. 27, 1979. § 293. SALE TO RAISE FUNDS FOR FAMILY ALLOWANCE. If there be no personal property of the deceased that the surviving spouse or guardian is willing to take for such allowance, or not a sufficiency of them, and if there be no funds or not sufficient funds in the hands of such executor or administrator to pay such allowance, or any part thereof, then the court, as soon as the inventory, appraisement, and list of claims are returned and approved, shall order a sale of so much of the estate for cash as will be sufficient to raise the amount of such allowance, or a part thereof, as the case requires. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 39, ch. 24, § 21, eff. Aug. 27, 1979.PART 4. PRESENTMENT AND PAYMENT OF CLAIMS § 294. NOTICE BY REPRESENTATIVE OF APPOINTMENT. (a) Giving of Notice Required. Within one month after receiving letters, personal representatives of estates shall send to the comptroller of public accounts by certified or registered mail if the decedent remitted or should have remitted taxes administered by the comptroller of public accounts and publish in some newspaper, printed in the county where the letters were issued, if there be one, a notice requiring all persons having claims against the estate being administered to present the same within the time prescribed by law. The notice shall include the date of issuance of letters held by the representative, the address to which claims may be presented, and an instruction of the representative's choice that claims be addressed in care of the representative, in care of the representative's attorney, or in care of "Representative, Estate of __________" (naming the estate). (b) Proof of Publication. A copy of such printed notice, together with the affidavit of the publisher, duly sworn to and subscribed before a proper officer, to the effect that the notice was published as provided in this Code for the service of citation or notice by publication, shall be filed in the court where the cause is pending. (c) When No Newspaper Printed in the County. When no newspaper is printed in the county, the notice shall be posted and the return made and filed as required by this Code. (d) Permissive Notice to Unsecured Creditors. At any time before an estate administration is closed, the personal representative may give notice by certified or registered mail, with return receipt requested, to an unsecured creditor having a claim for money against the estate expressly stating that the creditor must present a claim within four months after the date of the receipt of the notice or the claim is barred, if the claim is not barred by the general statutes of limitation. The notice must include: (1) the dates of issuance of letters held by the representative; (2) the address to which claims may be presented; and (3) an instruction of the representative's choice that the claim be addressed in care of: (A) the representative; (B) the representative's attorney; or (C) "Representative, Estate of " (naming the estate). Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1981, 67th Leg., p. 243, ch. 102, § 9, eff. Aug. 31, 1981; Acts 1991, 72nd Leg., ch. 464, § 1, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 1054, § 2, eff. Jan. 1, 1996. § 295. NOTICE TO HOLDERS OF SECURED CLAIMS. (a) When notice required for secured claimants. Within two months after receiving letters, the personal representative of an estate shall give notice of the issuance of such letters to each and every person known to the personal representative to have a claim for money against the estate of a decedent that is secured by real or personal property of the estate. Within a reasonable time after the personal representative obtains actual knowledge of the existence of a person having a secured claim for money and to whom notice was not previously given, the personal representative shall give notice to the person of the issuance of letters. (b) How notice shall be given. The notice stating the original grant of letters shall be given by mailing same by certified or registered mail, with return receipt requested, addressed to the record holder of such indebtedness or claim at the record holder's last known post office address. (c) Proof of service of notice. A copy of each notice required by Subsection (a) of this section and a copy of the return receipt and an affidavit of the representative, stating that said notice was mailed as required by law, giving the name of the person to whom the notice was mailed, if not shown on the notice or receipt, shall be filed with the clerk of the court from which letters were issued. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1987, 70th Leg., ch. 461, § 1, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 895, § 13, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 957, § 46, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 3, eff. Jan. 1, 1996. § 296. ONE NOTICE SUFFICIENT. If the notices required by the two preceding Sections have been given by a former representative, or by one where several are acting, that shall be sufficient, and need not be repeated by any successor or co-representative. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 297. PENALTY FOR FAILURE TO GIVE NOTICE. If the representative fails to give the notices required in preceding Sections, or to cause such notices to be given, the representative and the sureties on the representative's bond shall be liable for any damage which any person suffers by reason of such neglect, unless it appears that such person had notice otherwise. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 4, eff. Jan. 1, 1996. § 298. CLAIMS AGAINST ESTATES OF DECEDENTS. (a) Time for Presentation of Claims. A claim may be presented to the personal representative at any time before the estate is closed if suit on the claim has not been barred by the general statutes of limitation. If a claim of an unsecured creditor for money is not presented within four months after the date of receipt of the notice permitted by Section 294(d), the claim is barred. (b) Claims Barred by Limitation Not to Be Allowed or Approved. No claims for money against a decedent, or against the estate of the decedent, on which a suit is barred under Subsection (a) of this section, Section 313, or Section 317(a) or by a general statute of limitation applicable thereto shall be allowed by a personal representative. If allowed by the representative and the court is satisfied that the claim is barred or that limitation has run, the claim shall be disapproved. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 2992, ch. 988, § 1, eff. June 15, 1971; Acts 1993, 73rd Leg., ch. 957, § 47, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 5, eff. Jan. 1, 1996. § 299. TOLLING OF GENERAL STATUTES OF LIMITATION. The general statutes of limitation are tolled on the date: (1) a claim for money is filed or deposited with the clerk; or (2) suit is brought against the personal representative of an estate with respect to a claim of the estate that is not required to be presented to the personal representative. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1997, 75th Leg., ch. 1302, § 12, eff. Sept. 1, 1997. § 301. CLAIMS FOR MONEY MUST BE AUTHENTICATED. No personal representative of a decedent's estate shall allow, and the court shall not approve, a claim for money against such estate, unless such claim be supported by an affidavit that the claim is just and that all legal offsets, payments, and credits known to the affiant have been allowed. If the claim is not founded on a written instrument or account, the affidavit shall also state the facts upon which the claim is founded. A photostatic copy of any exhibit or voucher necessary to prove a claim may be offered with and attached to the claim in lieu of the original. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 48, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 6, eff. Jan. 1, 1996. § 302. WHEN DEFECTS OF FORM ARE WAIVED. Any defect of form, or claim of insufficiency of exhibits or vouchers presented, shall be deemed waived by the personal representative unless written objection thereto has been made within thirty days after presentment of the claim, and filed with the county clerk. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 303. EVIDENCE CONCERNING LOST OR DESTROYED CLAIMS. If evidence of a claim is lost or destroyed, the claimant or an authorized representative or agent of the claimant, may make affidavit to the fact of such loss or destruction, stating the amount, date, and nature of the claim and when due, and that the same is just, and that all legal offsets, payments and credits known to the affiant have been allowed, and that the claimant is still the owner of the claim; and the claim must be proved by disinterested testimony taken in open court, or by oral or written deposition, before the claim is approved. If such claim is allowed or approved without such affidavit, or if it is approved without satisfactory proof, such allowance or approval shall be void. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 7, eff. Jan. 1, 1996. § 304. AUTHENTICATION OF CLAIM BY OTHERS THAN INDIVIDUAL OWNERS. An authorized officer or representative of a corporation or other entity shall make the affidavit required to authenticate a claim of such corporation or entity. When an affidavit is made by an officer of a corporation, or by an executor, administrator, trustee, assignee, agent, representative, or attorney, it shall be sufficient to state in such affidavit that the person making it has made diligent inquiry and examination, and that he believes that the claim is just and that all legal offsets, payments, and credits made known to the affiant have been allowed. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 49, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 8, eff. Jan. 1, 1996. § 306. METHOD OF HANDLING SECURED CLAIMS FOR MONEY. (a) Specifications of Claim. When a secured claim for money against an estate is presented, the claimant shall specify therein, in addition to all other matters required to be specified in claims: (1) Whether it is desired to have the claim allowed and approved as a matured secured claim to be paid in due course of administration, in which event it shall be so paid if allowed and approved; or (2) Whether it is desired to have the claim allowed, approved, and fixed as a preferred debt and lien against the specific property securing the indebtedness and paid according to the terms of the contract which secured the lien, in which event it shall be so allowed and approved if it is a valid lien; provided, however, that the personal representative may pay said claim prior to maturity if it is for the best interest of the estate to do so. (b) Time for Specification of Secured Claim. Within six months after the date letters are granted, or within four months after the date notice is received under Section 295 of this code, whichever is later, the secured creditor may present the creditor's claim and shall specify whether the claim is to be allowed and approved under Paragraph (1) or (2) of Subsection (a) of this section. If a secured claim is not presented within the time prescribed by this subsection or if the claim is presented without specifying how the claim is to be paid, it shall be treated as a claim to be paid in accordance with Paragraph (2) of Subsection (a) hereof. (c) Matured Secured Claims. If a claim has been allowed and approved as a matured secured claim under Paragraph (1) of Subsection (a) of this section, the claim shall be paid in due course of administration and the secured creditor is not entitled to exercise any other remedies in a manner that prevents the preferential payment of claims and allowances described by Paragraphs (1) through (3) of Section 320(a) of this code. (c-1) If a claimant presents a secured claim against an estate for a debt that would otherwise pass with the property securing the debt to one or more devisees in accordance with Section 71A(a) of this code and the claim is allowed and approved as a matured secured claim under Subsection (a)(1) of this section, the personal representative shall collect from the devisees the amount of the debt and pay that amount to the claimant in satisfaction of the claim. Each devisee's share of the debt is an amount equal to a fraction representing the devisee's ownership interest in the property, multiplied by the amount of the debt. If the personal representative is unable to collect from the devisees an amount sufficient to pay the debt, the personal representative shall sell the property securing the debt, subject to Part 5 of this chapter. The personal representative shall use the sale proceeds to pay the debt and any expenses associated with the sale and shall distribute the remaining sale proceeds to each devisee in an amount equal to a fraction representing the devisee's ownership interest in the property, multiplied by the amount of the remaining sale proceeds. If the sale proceeds are insufficient to pay the debt and any expenses associated with the sale, the difference between the sum of the amount of the debt and the expenses associated with the sale and the sale proceeds shall be paid under Subsection (c) of this section. (d) Approved Claim as Preferred Lien Against Property. When an indebtedness has been allowed and approved under Paragraph (2) of Subsection (a) hereof, no further claim shall be made against other assets of the estate by reason thereof, but the same thereafter shall remain a preferred lien against the property securing same, and the property shall remain security for the debt in any distribution or sale thereof prior to final maturity and payment of the debt. (e) Payment of Maturities on Preferred Debt and Lien Claims. If property securing a claim allowed, approved, and fixed under Paragraph (2) of Subsection (a) hereof is not sold or distributed within six months from the date letters are granted, the representative of the estate shall promptly pay all maturities which have accrued on the debt according to the terms thereof, and shall perform all the terms of any contract securing same. If the representative defaults in such payment or performance, on application of the claimholder, the court shall: (1) require the sale of said property subject to the unmatured part of such debt and apply the proceeds of the sale to the liquidation of the maturities; (2) require the sale of the property free of the lien and apply the proceeds to the payment of the whole debt; or (3) authorize foreclosure by the claimholder as provided by Subsections (f) through (k) of this section. (f) Foreclosure of Preferred Liens. An application by a claimholder under Subsection (e) of this section to foreclose the claimholder's lien or security interest on property securing a claim that has been allowed, approved, and fixed under Paragraph (2) of Subsection (a) of this section shall be supported by affidavit of the claimholder that: (1) describes the property or part of the property to be sold by foreclosure; (2) describes the amounts of the claimholder's outstanding debt; (3) describes the maturities that have accrued on the debt according to the terms of the debt; (4) describes any other debts secured by a mortgage, lien, or security interest against the property that are known by the claimholder; (5) contains a statement that the claimholder has no knowledge of the existence of any debts secured by the property other than those described by the application; and (6) requests permission for the claimholder to foreclose the claimholder's mortgage, lien, or security interest. (g) Citation. On the filing of an application, the clerk shall issue citation by personal service to the personal representative and to any person described by the application as having other debts secured by a mortgage, lien, or security interest against the property and by posting to any other person interested in the estate. The citation must require the person to appear and show cause why foreclosure should or should not be permitted. (h) Setting of Hearing on Application. When an application is filed, the clerk shall immediately notify the judge. The judge shall schedule in writing a date for a hearing on the application. The judge may, by entry on the docket or otherwise, continue the hearing for a reasonable time to allow an interested person to obtain an appraisal or other evidence concerning the fair market value of the property that is the subject of the application. If the interested person requests an unreasonable time for a continuance, the person must show good cause for the continuance. (i) Hearing. (1) At the hearing, if the court finds that there is a default in payment or performance under the contract that secures the payment of the claim, the court shall: (A) require the sale of the property subject to the unmatured part of the debt and apply the proceeds of the sale to the liquidation of the maturities; (B) require the sale of the property free of the lien and apply the proceeds to the payment of the whole debt; or (C) authorize foreclosure by the claimholder as provided by Subsection (f) of this section. (2) When the court grants a claimholder the right of foreclosure, the court shall authorize the claimholder to foreclose the claimholder's mortgage, lien, or security interest in accordance with the provisions of the document creating the mortgage, lien, or security interest or in any other manner allowed by law. In the discretion of the court and based on the evidence presented at the hearing, the court may fix a minimum price for the property to be sold by foreclosure that does not exceed the fair market value of the property. If the court fixes a minimum price, the property may not be sold at the foreclosure sale for a lower price. (j) Appeal. Any person interested in the estate may appeal an order issued under Subsection (i)(1)(C) of this section. (k) Unsuccessful Foreclosure. If a foreclosure sale authorized under this section is conducted and the property is not sold because no bid at the sale met the minimum price set by the court, the claimholder may file another application under Subsection (f) of this section. The court may, in the court's discretion, eliminate or modify the minimum price requirement and grant permission for another foreclosure sale. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 50, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 9, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1302, § 13, eff. Sept. 1, 1997. Subsec. (c-1) added by Acts 2005, 79th Leg., ch. 551, § 6, eff. Sept. 1, 2005. § 307. CLAIMS PROVIDING FOR ATTORNEY'S FEES. If the instrument evidencing or supporting a claim provides for attorney's fees, then the claimant may include as a part of the claim the portion of such fee that he has paid or contracted to pay to an attorney to prepare, present, and collect such claim. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 308. DEPOSITING CLAIMS WITH CLERK. Claims may also be presented by depositing same, with vouchers and necessary exhibits and affidavit attached, with the clerk, who, upon receiving same, shall advise the representative of the estate, or the representative's attorney, by letter mailed to the representative's last known address, of the deposit of same. Should the representative fail to act on said claim within thirty days after it is deposited, then it shall be presumed to be rejected. Failure of the clerk to give notice as required herein shall not affect the validity of the presentment or the presumption of rejection because not acted upon within said thirty day period. The clerk shall enter a deposited claim on the claim docket. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 10, eff. Jan. 1, 1996. § 309. MEMORANDUM OF ALLOWANCE OR REJECTION OF CLAIM. When a duly authenticated claim against an estate is presented to the representative, or deposited with the clerk as heretofore provided, the representative shall, within thirty days after the claim is presented or deposited, endorse thereon, annex thereto, or file with the clerk a memorandum signed by the representative, stating the date of presentation or depositing of the claim, and that the representative allows or rejects it, or what portion thereof the representative allows or rejects. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 11, eff. Jan. 1, 1996. § 310. FAILURE TO ENDORSE OR ANNEX MEMORANDUM. The failure of a representative of an estate to timely allow or reject a claim under Section 309 of this code shall constitute a rejection of the claim. If the claim is thereafter established by suit, the costs shall be taxed against the representative, individually, or the representative may be removed on the written complaint of any person interested in the claim, after personal service of citation, hearing, and proof, as in other cases of removal. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 12, eff. Jan. 1, 1996. § 311. WHEN CLAIMS ENTERED IN DOCKET. After a claim against an estate has been presented to and allowed or rejected by the personal representative, in whole or in part, the claim must be filed with the county clerk of the proper county. The clerk shall enter the claim on the claim docket. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 2992, ch. 988, § 2, eff. June 15, 1971; Acts 1993, 73rd Leg., ch. 957, § 51, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 13, eff. Jan. 1, 1996. § 312. CONTEST OF CLAIMS, ACTION BY COURT, AND APPEALS. (a) Contest of Claims. Any person interested in an estate may, at any time before the court has acted upon a claim, appear and object in writing to the approval of the same, or any part thereof, and in such case the parties shall be entitled to process for witnesses, and the court shall hear proof and render judgment as in ordinary suits. (b) Court's Action Upon Claims. All claims which have been allowed and entered upon the claim docket for a period of ten days shall be acted upon by the court and be either approved in whole or in part or rejected, and they shall also at the same time be classified by the court. (c) Hearing on Claims. Although a claim may be properly authenticated and allowed, if the court is not satisfied that it is just, the court shall examine the claimant and the personal representative under oath, and hear other evidence necessary to determine the issue. If not then convinced that the claim is just, the court shall disapprove it. (d) Order of the Court. When the court has acted upon a claim, the court shall also endorse thereon, or annex thereto, a written memorandum dated and signed officially, stating the exact action taken upon such claim, whether approved or disapproved, or approved in part or rejected in part, and stating the classification of the claim. Such orders shall have the force and effect of final judgments. (e) Appeal. When a claimant or any person interested in an estate shall be dissatisfied with the action of the court upon a claim, the claimant or person may appeal therefrom to the courts of appeals, as from other judgments of the county court in probate matters. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 2196, ch. 701, § 4, eff. June 21, 1975; Acts 1993, 73rd Leg., ch. 957, § 52, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 14, eff. Jan. 1, 1996. § 313. SUIT ON REJECTED CLAIM. When a claim or a part thereof has been rejected by the representative, the claimant shall institute suit thereon in the court of original probate jurisdiction in which the estate is pending within ninety days after such rejection, or the claim shall be barred. When a rejected claim is sued on, the endorsement made on or annexed thereto, or any memorandum of rejection filed with respect to the claim, shall be taken to be true without further proof, unless denied under oath. When a rejected claim or part thereof has been established by suit, no execution shall issue, but the judgment shall be filed in the court in which the cause is pending, entered upon the claim docket, classified by the court, and handled as if originally allowed and approved in due course of administration. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 2196, ch. 701, § 5, eff. June 21, 1975; Acts 1995, 74th Leg., ch. 1054, § 15, eff. Jan. 1, 1996; Acts 2001, 77th Leg., ch. 10, § 3, eff. Sept. 1, 2001. § 314. PRESENTMENT OF CLAIMS A PREREQUISITE FOR JUDGMENT. No judgment shall be rendered in favor of a claimant upon any claim for money which has not been legally presented to the representative of an estate, and rejected by the representative or by the court, in whole or in part. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 53, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 16, eff. Jan. 1, 1996. § 315. COSTS OF SUIT WITH RESPECT TO CLAIMS. All costs incurred in the probate court with respect to claims shall be taxed as follows: (a) If allowed and approved, the estate shall pay the costs. (b) If allowed, but disapproved, the claimant shall pay the costs. (c) If rejected, but established by suit, the estate shall pay the costs. (d) If rejected, but not established by suit, the claimant shall pay the costs, except as provided by Section 310 of this code. (e) In suits to establish a claim after rejection in part, if the claimant fails to recover judgment for a greater amount than was allowed or approved, the claimant shall pay all costs. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 17, eff. Jan. 1, 1996. § 316. CLAIMS AGAINST PERSONAL REPRESENTATIVES. The naming of an executor in a will shall not operate to extinguish any just claim which the deceased had against the person named as executor; and, in all cases where a personal representative is indebted to the testator or intestate, the representative shall account for the debt in the same manner as if it were cash in the representative's hands; provided, however, that if said debt was not due at the time of receiving letters, the representative shall be required to account for it only from the date when it becomes due. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 18, eff. Jan. 1, 1996. § 317. CLAIMS BY PERSONAL REPRESENTATIVES. (a) By Executors or Administrators. The foregoing provisions of this Code relative to the presentation of claims against an estate shall not be construed to apply to any claim of a personal representative against the testator or intestate; but a personal representative holding such claim shall file the same in the court granting the letters, verified by affidavit as required in other cases, within six months after the representative has qualified, or such claim shall be barred. (b) Action on Such Claims. When a claim by a personal representative has been filed with the court within the required time, such claim shall be entered upon the claim docket and acted upon by the court in the same manner as in other cases, and, when the claim has been acted upon by the court, an appeal from the judgment of the court may be taken as in other cases. (c) Provisions Not Applicable to Certain Claims. The foregoing provisions relative to the presentment of claims shall not be so construed as to apply to a claim: (1) of any heir, devisee, or legatee who claims in such capacity; (2) that accrues against the estate after the granting of letters for which the representative of the estate has contracted; or (3) for delinquent ad valorem taxes against a decedent's estate that is being administered in probate in: (A) a county other than the county in which the taxes were imposed; or (B) the same county in which the taxes were imposed, if the probate proceedings have been pending for more than four years. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 54, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 19, eff. Jan. 1, 1996; Acts 1999, 76th Leg., ch. 1481, § 37, eff. Sept. 1, 1999. § 318. CLAIMS NOT ALLOWED AFTER ORDER FOR PARTITION AND DISTRIBUTION. No claim for money against the estate of a decedent shall be allowed by a personal representative and no suit shall be instituted against the representative on any such claim, after an order for final partition and distribution has been made; but, after such an order has been made, the owner of any claim not barred by the laws of limitation shall have an action thereon against the heirs, devisees, legatees, or creditors of the estate, limited to the value of the property received by them in distributions from the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 20, eff. Jan. 1, 1996. § 319. CLAIMS NOT TO BE PAID UNLESS APPROVED. No claim for money against the estate of a decedent, or any part thereof, shall be paid until it has been approved by the court or established by the judgment of a court of competent jurisdiction. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 55, eff. Sept. 1, 1993. § 320. ORDER OF PAYMENT OF CLAIMS AND ALLOWANCES. (a) Priority of Payments. Personal representatives, when they have funds in their hands belonging to the estate, shall pay in the following order: (1) Funeral expenses and expenses of last sickness, in an amount not to exceed Fifteen Thousand Dollars. (2) Allowances made to the surviving spouse and children, or to either. (3) Expenses of administration and the expenses incurred in the preservation, safekeeping, and management of the estate. (4) Other claims against the estate in the order of their classification. (b) Sale of Mortgaged Property. If a personal representative has the proceeds of a sale that has been made for the satisfaction of a mortgage, lien, or security interest, and the proceeds, or any part of the proceeds, are not required for the payment of any debts against the estate that have a preference over the mortgage, lien, or security interest, the personal representative shall pay the proceeds to any holder of a mortgage, lien, or security interest. If there is more than one mortgage, lien, or security interest against the property, the personal representative shall pay the holders in the order of the holders' priority. If the personal representative fails to pay proceeds under this subsection, a holder, on proof of the failure to pay, may obtain an order from the court directing the payment to be made. (c) Claimant's Petition. A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitations and upon due proof procure an order for its allowance and payment from the estate. (d) Permissive Order of Payment. After the sixth month after the date letters are granted and on application by the personal representative stating that the personal representative has no actual knowledge of any outstanding enforceable claims against the estate other than the claims already approved and classified by the court, the court may order the personal representative to pay any claim that is allowed and approved. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1975, 64th Leg., p. 1818, ch. 554, § 1, eff. Sept. 1, 1975; Acts 1977, 65th Leg., p. 352, ch. 173, § 1, eff. Aug. 29, 1977; Acts 1979, 66th Leg., p. 1876, ch. 758, § 1, eff. Aug. 27, 1979. Amended by Acts 1987, 70th Leg., ch. 461, § 2, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 957, § 56, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 21, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 540, § 4, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1361, § 1, eff. Sept. 1, 1997. § 320A. FUNERAL EXPENSES. When personal representatives pay claims for funeral expenses and for items incident thereto, such as tombstones, grave markers, crypts or burial plots, they shall charge the whole of such claims to the decedent's estate and shall charge no part thereof to the community share of a surviving spouse. Added by Acts 1967, 60th Leg., p. 768, ch. 321, § 1, eff. May 27, 1967. Amended by Acts 1995, 74th Leg., ch. 1054, § 22, eff. Jan. 1, 1996. § 321. DEFICIENCY OF ASSETS. When there is a deficiency of assets to pay all claims of the same class, other than secured claims for money, the claims in such class shall be paid pro rata, as directed by the court, and in the order directed. No personal representative shall be allowed to pay the claims, whether the estate is solvent or insolvent, except with the pro rata amount of the funds of the estate that have come to hand. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 57, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 23, eff. Jan. 1, 1996. § 322. CLASSIFICATION OF CLAIMS AGAINST ESTATES OF DECEDENT. Claims against an estate of a decedent shall be classified and have priority of payment, as follows: Class 1. Funeral expenses and expenses of last sickness for a reasonable amount to be approved by the court, not to exceed a total of Fifteen Thousand Dollars, with any excess to be classified and paid as other unsecured claims. Class 2. Expenses of administration and expenses incurred in the preservation, safekeeping, and management of the estate, including fees and expenses awarded under Section 243 of this code, and unpaid expenses of administration awarded in a guardianship of the decedent. Class 3. Secured claims for money under Section 306(a)(1), including tax liens, so far as the same can be paid out of the proceeds of the property subject to such mortgage or other lien, and when more than one mortgage, lien, or security interest shall exist upon the same property, they shall be paid in order of their priority. Class 4. Claims for the principal amount of and accrued interest on delinquent child support and child support arrearages that have been confirmed and reduced to money judgment, as determined under Subchapter F, Chapter 157, Family Code. Class 5. Claims for taxes, penalties, and interest due under Title 2, Tax Code; Chapter 8, Title 132, Revised Statutes; Section 81.111, Natural Resources Code; the Municipal Sales and Use Tax Act (Chapter 321, Tax Code); Section 451.404, Transportation Code; or Subchapter I, Chapter 452, Transportation Code. Class 6. Claims for the cost of confinement established by the institutional division of the Texas Department of Criminal Justice under Section 501.017, Government Code. Class 7. Claims for repayment of medical assistance payments made by the state under Chapter 32, Human Resources Code, to or for the benefit of the decedent. Class 8. All other claims. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1971, 62nd Leg., p. 2992, ch. 988, § 3, eff. June 15, 1971; Acts 1979, 66th Leg., p. 869, ch. 394, § 1, eff. Aug. 27, 1979; Acts 1981, 67th Leg., p. 242, ch. 102, § 8, eff. Aug. 31, 1981; Acts 1981, 67th Leg., p. 1785, ch. 389, § 38A, 39(l), eff. Jan. 1, 1982; Acts 1987, 70th Leg., ch. 1049, § 51, eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 1052, § 2.07, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 2, § 14.27(a)(6), eff. Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1035, § 13, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 1054, § 24, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 165, § 30.243, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1361, § 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 69, § 1, eff. Sept. 1, 1999. Amended by Acts 2003, 78th Leg., ch. 1060, § 14, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 551, § 7, eff. Sept. 1, 2005. § 322A. APPORTIONMENT OF TAXES. (a) In this section: (1) "Estate" means the gross estate of a decedent as determined for the purpose of estate taxes. (2) "Estate tax" means any estate, inheritance, or death tax levied or assessed on the property of a decedent's estate, because of the death of a person, imposed by federal, state, local, or foreign law, including the federal estate tax and the additional inheritance tax imposed by Chapter 211, Tax Code, and including interest and penalties imposed in addition to those taxes. Estate tax does not include a tax imposed under Section 2701(d)(1)(A), Internal Revenue Code of 1986 (26 U.S.C. Section 2701(d)). (3) "Person" includes a trust, natural person, partnership, association, joint stock company, corporation, government, political subdivision, or governmental agency. (4) "Person interested in the estate" means a person, or a fiduciary on behalf of that person, who is entitled to receive, or who has received, from a decedent or because of the death of the decedent, property included in the decedent's estate for purposes of the estate tax, but does not include a creditor of the decedent or of the decedent's estate. (5) "Representative" means the representative, executor, or administrator of an estate, or any other person who is required to pay estate taxes assessed against the estate. (b)(1) The representative shall charge each person interested in the estate a portion of the total estate tax assessed against the estate. The portion of each estate tax that is charged to each person interested in the estate must represent the same ratio as the taxable value of that person's interest in the estate included in determining the amount of the tax bears to the total taxable value of all the interests of all persons interested in the estate included in determining the amount of the tax. In apportioning an estate tax under this subdivision, the representative shall disregard a portion of the tax that is apportioned under the law imposing the tax, otherwise apportioned by federal law, or apportioned as otherwise provided by this section. (2) Subdivision (1) of this subsection does not apply to the extent the decedent in a written inter vivos or testamentary instrument disposing of or creating an interest in property specifically directs the manner of apportionment of estate tax or grants a discretionary power of apportionment to another person. A direction for the apportionment or nonapportionment of estate tax is limited to the estate tax on the property passing under the instrument unless the instrument is a will that provides otherwise. (3) If under Subdivision (2) of this subsection directions for the apportionment of an estate tax in two or more instruments executed by the same person conflict, the instrument disposing of or creating an interest in the property to be taxed controls. If directions for the apportionment of estate tax in two or more instruments executed by different persons conflict, the direction of the person in whose estate the property is included controls. (4) Subdivisions (2) and (3) of this subsection do not grant or enlarge the power of a person to apportion estate tax to property passing under an instrument created by another person in excess of the estate tax attributable to the property. Subdivisions (2) and (3) of this subsection do not apply to the extent federal law directs a different manner of apportionment. (c) Any deduction, exemption, or credit allowed by law in connection with the estate tax inures to a person interested in the estate as provided by Subsections (d)-(f) of this section. (d) If the deduction, exemption, or credit is allowed because of the relationship of the person interested in the estate to the decedent, or because of the purpose of the gift, the deduction, exemption, or credit inures to the person having the relationship or receiving the gift, unless that person's interest in the estate is subject to a prior present interest that is not allowable as a deduction. The estate tax apportionable to the person having the present interest shall be paid from the corpus of the gift or the interest of the person having the relationship. (e) A deduction for property of the estate that was previously taxed and a credit for gift taxes or death taxes of a foreign country that were paid by the decedent or his estate inures proportionally to all persons interested in the estate who are liable for a share of the estate tax. (f) A credit for inheritance, succession, or estate taxes, or taxes of a similar nature applicable to property or interests includable in the estate, inures to the persons interested in the estate who are chargeable with payment of a portion of those taxes to the extent that the credit reduces proportionately those taxes. (g) To the extent that property passing to or in trust for a surviving spouse or a charitable, public, or similar gift or devise is not an allowable deduction for purposes of the estate tax solely because of an inheritance tax or other death tax imposed on and deductible from the property, the property is not included in the computation provided for by Subsection (b) of this section, and to that extent no apportionment is made against the property. The exclusion provided by this subsection does not apply if the result would be to deprive the estate of a deduction otherwise allowable under Section 2053(d), Internal Revenue Code of 1986, relating to deductions for state death taxes on transfers for public, charitable, or religious uses. (h) Except as provided by Subsection (i)(3) of this section, an interest in income, an estate for years or for life, or another temporary interest in any property or fund is not subject to apportionment. The estate tax apportionable to the temporary interest and the remainder, if any, is chargeable against the corpus of the property or the funds that are subject to the temporary interest and remainder. (i)(1) In this subsection, "qualified real property" has the meaning assigned by Section 2032A, Internal Revenue Code of 1986 (26 U.S.C. Section 2032A). (2) If an election is made under Section 2032A, Internal Revenue Code of 1986 (26 U.S.C. Section 2032A), the representative shall apportion estate taxes according to the amount of federal estate tax that would be payable if the election were not made. The amount of the reduction of the estate tax resulting from the election shall be applied to reduce the amount of the estate tax allocated based on the value of the qualified real property that is the subject of the election. If the amount applied to reduce the taxes allocated based on the value of the qualified real property is greater than the amount of those taxes, the excess shall be applied to the portion of the taxes allocated for all other property. This amount is to be apportioned under Subsection (b)(1) of this section. (3) If additional federal estate tax is imposed under Section 2032A(c), Internal Revenue Code of 1986 (26 U.S.C. Section 2032A) because of an early disposition or cessation of a qualified use, the additional tax shall be equitably apportioned among the persons who have an interest in the portion of the qualified real property to which the additional tax is attributable in proportion to their interests. The additional tax is a charge against such qualified real property. If the qualified real property is split between one or more life or term interests and remainder interests, the additional tax shall be apportioned to each person whose action or cessation of use caused the imposition of additional tax, unless all persons with an interest in the qualified real property agree in writing to dispose of the property, in which case the additional tax shall be apportioned among the remainder interests. (j) Repealed by Acts 2003, 78th Leg., ch. 1060, § 16. (k) If the date for the payment of any portion of an estate tax is extended, the amount of the extended tax shall be apportioned to the persons who receive the specific property that gives rise to the extension. Those persons are entitled to the benefits and shall bear the burdens of the extension. (l) If federal law directs the apportionment of the federal estate tax, a similar state tax shall be apportioned in the same manner. (m) Interest on an extension of estate tax and interest and penalties on a deficiency shall be apportioned equitably to reflect the benefits and burdens of the extension or deficiency and of any tax deduction associated with the interest and penalties, but if the assessment or penalty and interest is due to delay caused by the negligence of the representative, the representative shall be charged with the amount of assessed penalty and interest. (n) If property includable in an estate does not come into possession of the representative obligated to pay the estate tax, the representative shall recover from each person interested in the estate the amount of the estate tax apportioned to the person under this section or assign to persons affected by the tax obligation the representative's right of recovery. The obligation to recover a tax under this subsection does not apply if: (1) the duty is waived by the parties affected by the tax obligation or by the instrument under which the representative derives powers; or (2) in the reasonable judgment of the representative, proceeding to recover the tax is not cost-effective. (o) If a representative cannot collect from a person interested in the estate an unpaid amount of estate tax apportioned to the person, the amount not collected shall be apportioned among the other persons interested in the estate who are subject to apportionment in the same manner as provided by Subsection (b)(1) of this section. A person who is charged with or who pays an apportioned amount under this subsection because another person failed to pay an amount of estate tax apportioned to the person has a right of reimbursement for that amount from the person who failed to pay the tax. The representative may enforce the right of reimbursement, or the person who is charged with or who pays an apportioned amount under this subsection may enforce the right of reimbursement directly by an assignment from the representative. A person assigned the right under this subsection is subrogated to the rights of the representative. A representative who has a right of reimbursement may petition a court to determine the right of reimbursement. (p) This section shall be applied after giving effect to any disclaimers made in accordance with Section 37A of this code. (q) Interest and penalties assessed against the estate by a taxing authority shall be apportioned among and charged to the persons interested in the estate in the manner provided by Subsection (b) of this section, unless, on application by any person interested in the estate, the court determines that the proposed apportionment is not equitable or that the assessment of interest or penalties was caused by a breach of fiduciary duty of a representative. If the apportionment is not equitable, the court may apportion interest and penalties in an equitable manner. If the assessment of interest or penalties was caused by a breach of fiduciary duty of a representative, the court may charge the representative with the amount of the interest and penalties assessed attributable to his conduct. (r) Expenses reasonably incurred by a representative in determination of the amount, apportionment, or collection of the estate tax shall be apportioned among and charged to persons interested in the estate in the manner provided by Subsection (b) of this section unless, on application by any person interested in the estate, the court determines that the proposed apportionment is not equitable. If the court determines that the assessment is not equitable, the court may apportion the expenses in an equitable manner. (s) For the purposes of this section, "court" means a court in which proceedings for administration of the estate are pending or have been completed or, if no proceedings are pending or have been completed, a court in which venue lies for the administration of the estate of the decedent. (t) A representative who has possession of any property of an estate that is distributable to a person interested in the estate may withhold from that property an amount equal to the person's apportioned share of the estate tax. (u) A representative shall recover from any person interested in the estate the unpaid amount of the estate tax apportioned and charged to the person under this section, unless the representative determines in good faith that an attempt to recover this amount would be economically impractical. (v) A representative required to recover unpaid amounts of estate tax apportioned to persons interested in the estate under this section may not be required to initiate the necessary actions until the expiration of 90 days after the date of the final determination of the amount of the estate tax by the Internal Revenue Service. A representative who initiates an action under this section within a reasonable time after the 90-day period is not subject to any liability or surcharge because any portion of the estate tax apportioned to any person interested in the estate was collectible at a time following the death of the decedent but thereafter became uncollectible. (w) A representative acting in another state may initiate an action in a court of this state to recover a proportionate amount of the federal estate tax, of an estate tax payable to another state, or of a death duty due by a decedent's estate to another state, from a person interested in the estate who is domiciled in this state or owns property in this state subject to attachment or execution. In the action, a determination of apportionment by the court having jurisdiction of the administration of the decedent's estate in the other state is prima facie correct. This section applies only if the state in which the determination of apportionment was made affords a substantially similar remedy. (x) A reference in this section to a section of the Internal Revenue Code of 1986 refers to the section as it exists at the time in question. The reference also includes a corresponding section of a subsequent Internal Revenue Code and the referenced section as renumbered if it is renumbered. (y) The prevailing party in an action initiated by a person for the collection of estate taxes from a person interested in the estate to whom estate taxes were apportioned and charged under Subsection (b) of this section shall be awarded necessary expenses, including reasonable attorney's fees. Added by Acts 1987, 70th Leg., ch. 742, § 1, eff. Sept. 1, 1987. Amended by Acts 1991, 72nd Leg., ch. 410, § 1, eff. Sept. 1, 1991. Subsec. (j) repealed by Acts 2003, 78th Leg., ch. 1060, § 16, eff. Sept. 1, 2003. § 322B. ABATEMENT OF BEQUESTS. (a) Except as provided by Subsections (b)-(d) of this section, a decedent's property is liable for debts and expenses of administration other than estate taxes, and bequests abate in the following order: (1) property not disposed of by will, but passing by intestacy; (2) personal property of the residuary estate; (3) real property of the residuary estate; (4) general bequests of personal property; (5) general devises of real property; (6) specific bequests of personal property; and (7) specific devises of real property. (b) This section does not affect the requirements for payment of a claim of a secured creditor who elects to have the claim continued as a preferred debt and lien against specific property under Section 306 of this code. (c) This section does not apply to the payment of estate taxes under Section 322A of this code. (d) A decedent's intent, as expressed in a will, controls over the abatement of bequests provided by this section. Added by Acts 1987, 70th Leg., ch. 742, § 2, eff. Sept. 1, 1987. § 323. JOINT OBLIGATION. When two or more persons are jointly bound for the payment of a debt, or for any other purpose, upon the death of any of the persons so bound, the decedent's estate shall be charged by virtue of such obligation in the same manner as if the obligors had been bound severally as well as jointly. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 25, eff. Jan. 1, 1996. § 324. REPRESENTATIVES NOT TO PURCHASE CLAIMS. It shall be unlawful, and cause for removal, for a personal representative whether acting under appointment by will or under orders of the court, to purchase for the personal representative's own use or for any purposes whatsoever, any claim against the estate the personal representative represents. Upon written complaint by any person interested in the estate, and satisfactory proof of violation of this provision, after citation and hearing, the court shall enter its order cancelling the claim, and no part thereof shall be paid out of the estate; and the court may, in the court's discretion, remove such representative. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 58, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 26, eff. Jan. 1, 1996. § 326. OWNER MAY OBTAIN ORDER FOR PAYMENT. Any creditor of an estate of a decedent whose claim, or part thereof, has been approved by the court or established by suit, may, at any time after twelve months from the granting of letters testamentary, upon written application and proof showing that the estate has on hand sufficient available funds, obtain an order directing that payment be made; or, if there are no available funds, and if to await the receipt of funds from other sources would unreasonably delay payment, the court shall then order sale of property of the estate sufficient to pay the claim; provided, the representative of the estate shall have first been cited on such written complaint to appear and show cause why such order should not be made. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 328. LIABILITY FOR NONPAYMENT OF CLAIMS. (a) Procedure to Force Payment. If any representative of an estate shall fail to pay on demand any money ordered by the court to be paid to any person, except to the State Treasury, when there are funds of the estate available, the person or claimant entitled to such payment, upon affidavit of the demand and failure to pay, shall be authorized to have execution issued against the property of the estate for the amount due, with interest and costs; or (b) Penalty Against Representative. Upon return of the execution not satisfied, or merely upon the affidavit of demand and failure to pay, the court may cite the representative and the sureties on the representative's bond to show cause why they should not be held liable for such debt, interest, costs, and damages. Upon return of citation duly served, if good cause to the contrary be not shown, the court shall render judgment against the representative and sureties so cited, in favor of the holder of such claim, for the amount theretofore ordered to be paid or established by suit, and remaining unpaid, together with interest and costs, and also for damages upon the amount neglected to be paid, at the rate of five per cent per month for each month, or fraction thereof, that the payment was neglected to be paid after demand made therefor, which damages may be collected in any court of competent jurisdiction. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1995, 74th Leg., ch. 1054, § 27, eff. Jan. 1, 1996. § 329. BORROWING MONEY. (a) Circumstances Under Which Money May Be Borrowed. Any real or personal property of an estate may be mortgaged or pledged by deed of trust or otherwise as security for an indebtedness, under order of the court, when necessary for any of the following purposes: (1) For the payment of any ad valorem, income, gift, estate, inheritance, or transfer taxes upon the transfer of an estate or due from a decedent or the estate, regardless of whether such taxes are assessed by a state, or any of its political subdivisions, or by the federal government or by a foreign country; or (2) For payment of expenses of administration, including sums necessary for operation of a business, farm, or ranch owned by the estate; or (3) For payment of claims allowed and approved, or established by suit, against the estate; or (4) To renew and extend a valid, existing lien. (b) Procedure for Borrowing Money. When it is necessary to borrow money for any of the aforementioned purposes, or to create or extend a lien upon property of the estate as security, a sworn application for such authority shall be filed with the court, stating fully and in detail the circumstances which the representative of the estate believes make necessary the granting of such authority. Thereupon, the clerk shall issue and cause to be posted a citation to all interested persons, stating the nature of the application and requiring such persons, if they choose so to do, to appear and show cause, if any, why such application should not be granted. (c) Order Authorizing Such Borrowing, or Extension of Lien. The court, if satisfied by the evidence adduced at the hearing upon said application that it is to the interest of the estate to borrow money, or to extend and renew an existing lien, shall issue its order to that effect, setting out the terms and conditions of the authority granted; provided, however, the loan or renewal shall not be for a term longer than three years from the granting of original letters to the representative of such estate, but the court may authorize an extension of such lien for not more than one additional year without further citation or notice. If a new lien is created on property of an estate, the court may require that the representative's general bond be increased, or an additional bond given, for the protection of the estate and the creditors, as for the sale of real property belonging to the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1973, 63rd Leg., p. 408, ch. 182, § 3, eff. May 25, 1973; Acts 1987, 70th Leg., ch. 766, § 1, eff. Aug. 31, 1987; Acts 1993, 73rd Leg., ch. 957, § 59, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1054, § 28, eff. Jan. 1, 1996.PART 5. SALES § 331. COURT MUST ORDER SALES. Except as hereinafter provided, no sale of any property of an estate shall be made without an order of court authorizing the same. The court may order property sold for cash or on credit, at public auction or privately, as it may consider most to the advantage of the estate, except when otherwise specially provided herein. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 332. SALES AUTHORIZED BY WILL. Whenever by the terms of a will an executor is authorized to sell any property of the testator, no order of court shall be necessary to authorize the executor to make such sale, and the sale may be made at public auction or privately as the executor deems to be in the best interest of the estate and may be made for cash or upon such credit terms as the executor shall determine; provided, that when particular directions are given by a testator in his will respecting the sale of any property belonging to his estate, the same shall be followed, unless such directions have been annulled or suspended by order of the court. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 333. CERTAIN PERSONAL PROPERTY TO BE SOLD. (a) The representative of an estate, after approval of inventory and appraisement, shall promptly apply for an order of the court to sell at public auction or privately, for cash or on credit not exceeding six months, all of the estate that is liable to perish, waste, or deteriorate in value, or that will be an expense or disadvantage to the estate if kept. Property exempt from forced sale, specific legacies, and personal property necessary to carry on a farm, ranch, factory, or any other business which it is thought best to operate, shall not be included in such sales. (b) In determining whether to order the sale of an asset under Subsection (a) of this section, the court shall consider: (1) the representative's duty to take care of and manage the estate as a person of ordinary prudence, discretion, and intelligence would exercise in the management of the person's own affairs; and (2) whether the asset constitutes an asset that a trustee is authorized to invest under Chapter 117 or Subchapter F, Chapter 113, Property Code. Added by Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 846, § 21, eff. Sept. 1, 1993. Subsec. (b)(2) amended by Acts 2003, 78th Leg., ch. 1103, § 14, eff. Jan. 1, 2004. § 334. SALES OF OTHER PERSONAL PROPERTY. Upon application by the personal representative of the estate or by any interested person, the court may order the sale of any personal property of the estate not required to be sold by the preceding Section, including growing or harvested crops or livestock, but not including exempt property or specific legacies, if the court finds that so to do would be in the best interest of the estate in order to pay expenses of administration, funeral expenses, expenses of last illness, allowances, or claims against the estate, from the proceeds of the sale of such property. In so far as possible, applications and orders for the sale of personal property shall conform to the requirements hereinafter set forth for applications and orders for the sale of real estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 335. SPECIAL PROVISIONS PERTAINING TO LIVESTOCK. When the personal representative of an estate has in his possession any livestock which he deems necessary or to the advantage of the estate to sell, he may, in addition to any other method provided by law for the sale of personal property, obtain authority from the court in which the estate is pending to sell such livestock through a bonded livestock commission merchant, or a bonded livestock auction commission merchant. Such authority may be granted by the court upon written and sworn application by the personal representative, or by any person interested in the estate, describing the livestock sought to be sold, and setting out the reasons why it is deemed necessary or to the advantage of the estate that the application be granted. The court shall forthwith consider any such application, and may, in its discretion, hear evidence for or against the same, with or without notice, as the facts warrant. If the application be granted, the court shall enter its order to that effect, and shall authorize delivery of the livestock to any bonded livestock commission merchant or bonded livestock auction commission merchant for sale in the regular course of business. The commission merchant shall be paid his usual and customary charges, not to exceed five per cent of the sale price, for the sale of such livestock. A report of such sale, supported by a verified copy of the merchant's account of sale, shall be made promptly by the personal representative to the court, but no order of confirmation by the court is required to pass title to the purchaser of such livestock. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 2001, 77th Leg., ch. 443, § 1, eff. Sept. 1, 2001. § 336. SALES OF PERSONAL PROPERTY AT PUBLIC AUCTION. All sales of personal property at public auction shall be made after notice has been issued by the representative of the estate and posted as in case of posting for original proceedings in probate, unless the court shall otherwise direct. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 337. SALES OF PERSONAL PROPERTY ON CREDIT. No more than six months credit may be allowed when personal property is sold at public auction, based upon the date of such sale. The purchaser shall be required to give his note for the amount due, with good and solvent personal security, before delivery of such property can be made to him, but security may be waived if delivery is not to be made until the note, with interest, has been paid. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 338. SALE OF MORTGAGED PROPERTY. Any creditor holding a claim secured by a valid mortgage or other lien, which has been allowed and approved or established by suit, may obtain from the court in which the estate is pending an order that said property, or so much thereof as necessary to satisfy his claim, shall be sold, by filing his written application therefor. Upon the filing of such application, the clerk shall issue citation requiring the representative of the estate to appear and show cause why such application should not be granted. If it appears to the court that it would be advisable to discharge the lien out of the general assets of the estate or that it be refinanced, he may so order; otherwise, he shall grant the application and order that the property be sold at public or private sale, as deemed best, as in ordinary cases of sales of real estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 339. SALES OF PERSONAL PROPERTY TO BE REPORTED; DECREE VESTS TITLE. All sales of personal property shall be reported to the court, and the laws regulating sales of real estate as to confirmation or disapproval of sales shall apply, but no conveyance shall be necessary. The decree confirming the sale of personal property shall vest the right and title of the estate of the intestate in the purchaser who has complied with the terms of the sale, and shall be prima facie evidence that all requirements of the law in making the sale have been met. The representative of an estate may, upon request, issue a bill of sale without warranty to the purchaser as evidence of title, the expense thereof to be borne by the purchaser. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 60, eff. Sept. 1, 1993. § 340. SELECTION OF REAL PROPERTY TO BE SOLD FOR PAYMENT OF DEBTS. Real property of the estate which is selected to be sold for the payment of expenses or claims shall be that which the court deems most advantageous to the estate to be sold. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 341. APPLICATION FOR SALE OF REAL ESTATE. Application may be made to the court for an order to sell property of the estate when it appears necessary or advisable in order to: (1) Pay expenses of administration, funeral expenses and expenses of last sickness of decedents, and allowances and claims against the estates of decedents. (2) Dispose of any interest in real property of the estate of a decedent, when it is deemed to the best interest of the estate to sell such interest. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1969, 61st Leg., p. 2030, ch. 695, § 1, eff. June 12, 1969; Acts 1973, 63rd Leg., p. 408, ch. 182, § 4, eff. May 25, 1973; Acts 1975, 64th Leg., p. 975, ch. 372, § 1, eff. June 19, 1975; Acts 1975, 64th Leg., p. 976, ch. 373, § 1, eff. June 19, 1975; Acts 1979, 66th Leg., p. 1755, ch. 713, § 27, eff. Aug. 27, 1979; Acts 1993, 73rd Leg., ch. 957, § 61, eff. Sept. 1, 1993. § 342. CONTENTS OF APPLICATION FOR SALE OF REAL ESTATE. An application for the sale of real estate shall be in writing, shall describe the real estate or interest in or part thereof sought to be sold, and shall be accompanied by an exhibit, verified by affidavit, showing fully and in detail the condition of the estate, the charges and claims that have been approved or established by suit, or that have been rejected and may yet be established, the amount of each such claim, the property of the estate remaining on hand liable for the payment of such claims, and any other facts tending to show the necessity or advisability of such sale. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 343. SETTING OF HEARING ON APPLICATION. Whenever an application for the sale of real estate is filed, it shall immediately be called to the attention of the judge by the clerk, and the judge shall designate in writing a day for hearing said application, any opposition thereto, and any application for the sale of other land, together with the evidence pertaining thereto. The judge may, by entries on the docket, continue such hearing from time to time until he is satisfied concerning the application. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1755, ch. 713, § 28, eff. Aug. 27, 1979. § 344. CITATION AND RETURN ON APPLICATION. Upon the filing of such application and exhibit, the clerk shall issue a citation to all persons interested in the estate, describing the land or interest or part thereof sought to be sold, requiring them to appear at the time set by the court as shown in the citation and show cause why the sale should not be made, if they so elect. Service of such citation shall be by posting. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 345. OPPOSITION TO APPLICATION. When an application for an order of sale is made, any person interested in the estate may, before an order is made thereon, file his opposition to the sale, in writing, or may make application for the sale of other property of the estate. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 346. ORDER OF SALE. If satisfied upon hearing that the sale of the property of the estate described in the application is necessary or advisable, the court shall order the sale to be made; otherwise, the court may deny the application and may, if it deems best, order the sale of other property the sale of which would be more advantageous to the estate. An order for the sale of real estate shall specify: (a) The property to be sold, giving such description as will identify it; and (b) Whether the property is to be sold at public auction or at private sale, and, if at public auction, the time and place of such sale; and (c) The necessity or advisability of the sale and its purpose; and (d) Except in cases in which no general bond is required, that, having examined the general bond of the representative of the estate, the court finds it to be sufficient as required by law, or finds the same to be insufficient and specifies the necessary or increased bond, as the case may be; and (e) That the sale shall be made and the report returned in accordance with law; and (f) The terms of the sale. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 347. PROCEDURE WHEN REPRESENTATIVE NEGLECTS TO APPLY FOR SALE. When the representative of an estate neglects to apply for an order to sell sufficient property to pay the charges and claims against the estate that have been allowed and approved, or established by suit, any interested person may, upon written application, cause such representative to be cited to appear and make a full exhibit of the condition of such estate, and show cause why a sale of the property should not be ordered. Upon hearing such application, if the court is satisfied that a sale of the property is necessary or advisable in order to satisfy such claims, it shall enter an order of sale as provided in the preceding Section. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 348. PERMISSIBLE TERMS OF SALE OF REAL ESTATE. (a) For Cash or Credit. The real estate may be sold for cash, or for part cash and part credit, or the equity in land securing an indebtedness may be sold subject to such indebtedness, or with an assumption of such indebtedness, at public or private sale, as appears to the court to be for the best interest of the estate. When real estate is sold partly on credit, the cash payment shall not be less than one-fifth of the purchase price, and the purchaser shall execute a note for the deferred payments payable in monthly, quarterly, semi-annual or annual installments, of such amounts as appears to the court to be for the best interest of the estate, to bear interest from date at a rate of not less than four percent (4%) per annum, payable as provided in such note. Default in the payment of principal or interest, or any part thereof when due, shall, at the election of the holder of such note, mature the whole debt. Such note shall be secured by vendor's lien retained in the deed and in the note upon the property sold, and be further secured by deed of trust upon the property sold, with the usual provisions for foreclosure and sale upon failure to make the payments provided in the deed and notes. (b) Reconveyance Upon Redemption. When an estate owning real estate by virtue of foreclosure of vendor's lien or mortgage belonging to the estate, either by judicial sale or by a foreclosure suit or through sale under deed of trust or by acceptance of a deed in cancellation of a lien or mortgage owned by the estate, and it appears to the court that an application to redeem the property foreclosed upon has been made by the former owner of the real estate to any corporation or agency now created or hereafter to be created by any Act or Acts of the Congress of the United States or of the State of Texas in connection with legislation for the relief of owners of mortgaged or encumbered homes, farms, ranches, or other real estate, and it further appears to the court that it would be to the best interest of the estate to own bonds of one of the above named federal or state corporations or agencies instead of the real estate, then upon proper application and proof, the court may dispense with the provisions of credit sales as provided above, and may order reconveyance of the property to the former mortgage debtor, or former owner, reserving vendor's lien notes for the total amount of the indebtedness due or for the total amount of bonds which the corporation or agency above named is under its rules and regulations allowed to advance, and, upon obtaining such an order, it shall be proper for the representative to indorse and assign the notes so obtained over to any one of the corporations or agencies above named in exchange for bonds of that corporation or agency. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1959, 56th Leg., p. 636, ch. 290, § 1, eff. May 30, 1959. § 349. PUBLIC SALES OF REAL ESTATE. (a) Notice of Sale. Except as hereinafter provided, all public sales of real estate shall be advertised by the representative of the estate by a notice published in the county in which the estate is pending, as provided in this Code for publication of notices or citations. Reference shall be made to the order of sale, the time, place, and the required terms of sale, and a brief description of the property to be sold shall be given. It need not contain field notes, but if rural property, the name of the original survey, the number of acres, its locality in the county, and the name by which the land is generally known, if any, shall be given. (b) Method of Sale. All public sales of real estate shall be made at public auction to the highest bidder. (c) Time and Place of Sale. All such sales shall be made in the county in which the proceedings are pending, at the courthouse door of said county, or other place in such county where sales of real estate are specifically authorized to be made, on the first Tuesday of the month after publication of notice shall have been completed, between the hours of ten o'clock A.M. and four o'clock P.M., provided, that if deemed advisable by the court, he may order such sale to be made in the county in which the land is situated, in which event notice shall be published both in such county and in the county where the proceedings are pending. (d) Continuance of Sales. If sales are not completed on the day advertised, they may be continued from day to day by making public announcement verbally of such continuance at the conclusion of the sale each day, such continued sales to be within the same hours as hereinbefore prescribed. If sales are so continued, the fact shall be shown in the report of sale made to the court. (e) Failure of Bidder to Comply. When any person shall bid off property of an estate offered for sale at public auction, and shall fail to comply with the terms of sale, such property shall be readvertised and sold without any further order; and the person so defaulting shall be liable to pay to the representative of the estate, for its benefit, ten per cent of the amount of his bid, and also any deficiency in price on the second sale, such amounts to be recovered by such representative by suit in any court having jurisdiction of the amount claimed, in the county in which the sale was made. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 350. PRIVATE SALES OF REAL ESTATE. All private sales of real estate shall be made in such manner as the court directs in its order of sale, and no further advertising, notice, or citation concerning such sale shall be required, unless the court shall direct otherwise. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1979, 66th Leg., p. 1755, ch. 713, § 29, eff. Aug. 27, 1979. § 351. SALES OF EASEMENTS AND RIGHT OF WAYS. It shall be lawful to sell and convey easements and rights of ways on, under, and over the lands of an estate being administered under orders of a court, regardless of whether the proceeds of such a sale are required for payment of charges or claims against the estate, or for other lawful purposes. The procedure for such sales shall be the same as now or hereafter provided by law for sales of real property of estates of decedents at private sale. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1993, 73rd Leg., ch. 957, § 62, eff. Sept. 1, 1993. § 352. REPRESENTATIVE PURCHASING PROPERTY OF THE ESTATE. (a) Except as provided by Subsection (b), (c), or (d) of this section, the personal representative of an estate shall not become the purchaser, directly or indirectly, of any property of the estate sold by him, or by any co-representative if one be acting. (b) A personal representative of an estate may purchase property from the estate if the will, duly admitted to probate, appointing the personal representative expressly authorizes the sale. (c) A personal representative of a decedent may purchase property from the estate of the decedent in compliance with the terms of a written executory contract signed by the decedent, including a contract for deed, earnest money contract, buy/sell agreement, or stock purchase or redemption agreement. (d) After issuing the notice required by this subsection, a personal representative of an estate, including an independent administrator, may purchase property from the estate on the court's determination that the sale is in the best interest of the estate. The personal representative shall give notice by certified mail, return receipt requested, unless the court requires another form of notice, to each distributee of a deceased person's estate and to each creditor whose claim remains unsettled after presenting a claim within six months of the original grant of letters. The court may require additional notice or it may allow for the waiver of the notice required for a sale made under this subsection. (e) If a purchase is made in violation of this section, any person interested in the estate may file a written complaint with the court in which the proceedings are pending, and upon service of citation upon the representative, after hearing and proof, such sale shall be by the court declared void, and shall be set aside by the court and the property ordered to be reconveyed to the estate. All costs of the sale, protest, and suit, if found necessary, shall be adjudged against the representative. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by Acts 1985, 69th Leg., ch. 709, § 1, eff. Aug. 26, 1985; Acts 1989, 71st Leg., ch. 651, § 1, eff. June 14, 1989; Acts 1991, 72nd Leg., ch. 895, § 14, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 957, § 63, eff. Sept. 1, 1993. § 353. REPORTS OF SALE. All sales of real property of an estate shall be reported to the court ordering the same within thirty days after the sales are made. Reports shall be in writing, sworn to, and filed with the clerk, and noted on the probate docket. They shall show: (a) The date of the order of sale. (b) The property sold, describing it. (c) The time and place of sale. (d) The name of the purchaser. (e) The amount for which each parcel of property or interest therein was sold. (f) The terms of the sale, and whether made at public auction or privately. (g) Whether the purchaser is ready to comply with the order of sale. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 354. BOND ON SALE OF REAL ESTATE. If the personal representative of the estate is not required by this Code to furnish a general bond, the sale may be confirmed by the court if found to be satisfactory and in accordance with law. Otherwise, before any sale of real estate is confirmed, the court shall determine whether the general bond of said representative is sufficient to protect the estate after the proceeds of the sale are received. If the court so finds, the sale may be confirmed. If the general bond be found insufficient, the sale shall not be confirmed until and unless the general bond be increased to the amount required by the court, or an additional bond given, and approved by the court. The increase, or the additional bond, shall be equal to the amount for which such real estate is sold, plus, in either instance, such additional sum as the court shall find necessary and fix for the protection of the estate; provided, that where the real estate sold is encumbered by a lien to secure a claim against the estate and is sold to the owner or holder of such secured claim and is in full payment, liquidation, and satisfaction thereof, no increased general bond or additional bond shall be required except for the amount of cash, if any, actually paid to the representative of the estate in excess of the amount necessary to pay, liquidate, and satisfy such claim in full. Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. § 355. ACTION OF COURT ON REPORT OF SALE. After the expiration of five days from the filing of a report of sale, the court shall inquire into the manner in which the sale was made, hear evidence in support of or against such report, and determine the sufficiency or insufficiency of the representative's general bond, if any has been required and given; and, if he is satisfied that the sale was for a fair price, was properly made and in conformity with law, and has approved any increased or additional bond which may have been found necessary to protect the estate, the court shall enter a decree confirming such sale, showing conformity with the foregoing provisions of the Code, and authorizing the conveyance of the property to be made by the representative of the estate upon compliance by the purchaser with the terms of the sale, detailing such terms. If the court is not satisfied that the sale was for a fair price, was properly made, and in conformity with law, an order shall be made setting the same aside and ordering a new sale to be made, if necessary. The action of the court in confirming or disap