ESTATES CODE CHAPTER 255. CONSTRUCTION AND INTERPRETATION OF WILLS 255.102 ES.255
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ESTATES CODE
TITLE 2. ESTATES OF DECEDENTS; DURABLE POWERS OF ATTORNEY
SUBTITLE F. WILLS
CHAPTER 255. CONSTRUCTION AND INTERPRETATION OF WILLS
SUBCHAPTER A. CERTAIN PERSONAL PROPERTY EXCLUDED FROM DEVISE OR
LEGACY
Sec. 255.001.
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DEFINITIONS. In this subchapter:
(1)
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"Contents" means tangible personal property,
other than titled personal property, found inside of or on a
specifically devised item.
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The term includes clothing, pictures,
furniture, coin collections, and other items of tangible personal
property that:
(A)
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do not require a formal transfer of title;
and
(B)
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are located in another item of tangible
personal property such as a cedar chest or other furniture.
(2)
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"Titled personal property" includes all tangible
personal property represented by a certificate of title,
certificate of ownership, written label, marking, or designation
that signifies ownership by a person.
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The term includes a motor
vehicle, motor home, motorboat, or other similar property that
requires a formal transfer of title.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.002.
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CERTAIN PERSONAL PROPERTY EXCLUDED FROM
DEVISE OF REAL PROPERTY. A devise of real property does not include
any personal property located on, or associated with, the real
property or any contents of personal property located on the real
property unless the will directs that the personal property or
contents are included in the devise.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.003.
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CONTENTS EXCLUDED FROM LEGACY OF PERSONAL
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PROPERTY. A legacy of personal property does not include any
contents of the property unless the will directs that the contents
are included in the legacy.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
SUBCHAPTER B. SUCCESSION BY PRETERMITTED CHILD
Sec. 255.051.
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DEFINITION. In this subchapter,
"pretermitted child" means a testator
’
s child who is born or
adopted:
(1)
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during the testator
’
s lifetime or after the
testator
’
s death; and
(2)
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after the execution of the testator
’
s will.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.052.
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APPLICABILITY AND CONSTRUCTION. (a)
Sections 255.053 and 255.054 apply only to a pretermitted child who
is not:
(1)
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mentioned in the testator
’
s will;
(2)
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provided for in the testator
’
s will; or
(3)
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otherwise provided for by the testator.
(b)
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For purposes of this subchapter, a child is provided for
or a provision is made for a child if a disposition of property to or
for the benefit of the pretermitted child, whether vested or
contingent, is made:
(1)
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in the testator
’
s will, including a devise to a
trustee under Section 254.001; or
(2)
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outside the testator
’
s will and is intended to take
effect at the testator
’
s death.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.053.
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SUCCESSION BY PRETERMITTED CHILD IF TESTATOR
HAS LIVING CHILD AT WILL
’
S EXECUTION. (a)
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If no provision is made
in the testator
’
s last will for any child of the testator who is
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living when the testator executes the will, a pretermitted child
succeeds to the portion of the testator
’
s separate and community
estate, other than any portion of the estate devised to the
pretermitted child
’
s other parent, to which the pretermitted child
would have been entitled under Section 201.001 if the testator had
died intestate without a surviving spouse, except as limited by
Section 255.056.
(b)
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If a provision, whether vested or contingent, is made in
the testator
’
s last will for one or more children of the testator
who are living when the testator executes the will, a pretermitted
child is entitled only to a portion of the disposition made to
children under the will that is equal to the portion the child would
have received if the testator had:
(1)
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included all of the testator
’
s pretermitted
children with the children on whom benefits were conferred under
the will; and
(2)
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given an equal share of those benefits to each
child.
(c)
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To the extent feasible, the interest in the testator
’
s
estate to which the pretermitted child is entitled under Subsection
(b) must be of the same character, whether an equitable or legal
life estate or in fee, as the interest that the testator conferred
on the testator
’
s children under the will.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.27,
eff. January 1, 2014.
Sec. 255.054.
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SUCCESSION BY PRETERMITTED CHILD IF TESTATOR
HAS NO LIVING CHILD AT WILL
’
S EXECUTION.
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If a testator has no child
living when the testator executes the testator
’
s last will, a
pretermitted child succeeds to the portion of the testator
’
s
separate and community estate, other than any portion of the estate
devised to the pretermitted child
’
s other parent, to which the
pretermitted child would have been entitled under Section 201.001
if the testator had died intestate without a surviving spouse,
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except as limited by Section 255.056.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec. 2.28,
eff. January 1, 2014.
Sec. 255.055.
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RATABLE RECOVERY BY PRETERMITTED CHILD FROM
PORTIONS PASSING TO OTHER BENEFICIARIES. (a) A pretermitted child
may recover the share of the testator
’
s estate to which the child is
entitled from the testator
’
s other children under Section
255.053(b) or from the testamentary beneficiaries under Sections
255.053(a) and 255.054, other than the pretermitted child
’
s other
parent, ratably, out of the portions of the estate passing to those
persons under the will.
(b)
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In abating the interests of the beneficiaries described
by Subsection (a), the character of the testamentary plan adopted
by the testator must be preserved to the maximum extent possible.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.056.
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LIMITATION ON REDUCTION OF ESTATE PASSING TO
SURVIVING SPOUSE.
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If a pretermitted child
’
s other parent is not
the surviving spouse of the testator, the portion of the testator
’
s
estate to which the pretermitted child is entitled under Section
255.053(a) or 255.054 may not reduce the portion of the testator
’
s
estate passing to the testator
’
s surviving spouse by more than
one-half.
Added by Acts 2011, 82nd Leg., R.S., Ch. 1338 (S.B. 1198), Sec.
2.29, eff. January 1, 2014.
SUBCHAPTER C. LIFETIME GIFTS AS SATISFACTION OF DEVISE
Sec. 255.101.
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CERTAIN LIFETIME GIFTS CONSIDERED
SATISFACTION OF DEVISE. Property that a testator gives to a person
during the testator
’
s lifetime is considered a satisfaction, either
wholly or partly, of a devise to the person if:
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(1)
AA
the testator
’
s will provides for deduction of the
lifetime gift from the devise;
(2)
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the testator declares in a contemporaneous writing
that the lifetime gift is to be deducted from, or is in satisfaction
of, the devise;
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or
(3)
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the devisee acknowledges in writing that the
lifetime gift is in satisfaction of the devise.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.102.
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VALUATION OF PROPERTY. Property given in
partial satisfaction of a devise shall be valued as of the earlier
of:
(1)
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the date the devisee acquires possession of or
enjoys the property; or
(2)
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the date of the testator
’
s death.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
SUBCHAPTER D. FAILURE OF DEVISE; DISPOSITION OF PROPERTY TO
DEVISEE WHO PREDECEASES TESTATOR
Sec. 255.151.
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APPLICABILITY OF SUBCHAPTER.
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This
subchapter applies unless the testator
’
s will provides
otherwise.
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For example, a devise in the testator
’
s will stating
"to my surviving children" or "to such of my children as shall
survive me" prevents the application of Sections 255.153 and
255.154.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 844 (H.B. 2271), Sec. 20, eff.
September 1, 2017.
Sec. 255.152.
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FAILURE OF DEVISE; EFFECT ON RESIDUARY
ESTATE. (a) Except as provided by Sections 255.153 and 255.154, if
a devise, other than a residuary devise, fails for any reason, the
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devise becomes a part of the residuary estate.
(b)
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Except as provided by Sections 255.153 and 255.154, if
the residuary estate is devised to two or more persons and the share
of one of the residuary devisees fails for any reason, that
residuary devisee
’
s share passes to the other residuary devisees,
in proportion to the residuary devisee
’
s interest in the residuary
estate.
(c)
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Except as provided by Sections 255.153 and 255.154, the
residuary estate passes as if the testator had died intestate if all
residuary devisees:
(1)
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are deceased at the time the testator
’
s will is
executed;
(2)
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fail to survive the testator; or
(3)
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are treated as if the residuary devisees
predeceased the testator.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.153.
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DISPOSITION OF PROPERTY TO CERTAIN DEVISEES
WHO PREDECEASE TESTATOR. (a) If a devisee who is a descendant of
the testator or a descendant of a testator
’
s parent is deceased at
the time the will is executed, fails to survive the testator, or is
treated as if the devisee predeceased the testator by Chapter 121 or
otherwise, the descendants of the devisee who survived the testator
by 120 hours take the devised property in place of the devisee.
(b)
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Devised property to which Subsection (a) applies shall
be divided into the number of shares equal to the total number of
surviving descendants in the nearest degree of kinship to the
devisee and deceased persons in the same degree of kinship to the
devisee whose descendants survived the testator. Each surviving
descendant in the nearest degree of kinship to the devisee receives
one share, and the share of each deceased person in the same degree
of kinship to the devisee whose descendants survived the testator
is divided among the descendants by representation.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
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Sec. 255.154.
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DEVISEE UNDER CLASS GIFT. For purposes of
this subchapter, a person who would have been a devisee under a
class gift if the person had survived the testator is treated as a
devisee unless the person died before the date the will was
executed.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
SUBCHAPTER F. DEVISE OF SECURITIES
Sec. 255.251.
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DEFINITIONS. In this subchapter:
(1)
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"Securities" has the meaning assigned by Section
4, The Securities Act (Article 581-4, Vernon
’
s Texas Civil
Statutes).
(2)
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"Stock" means securities.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.252.
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INCREASE IN SECURITIES; ACCESSIONS. Unless
the will of a testator clearly provides otherwise, a devise of
securities that are owned by the testator on the date the will is
executed includes the following additional securities subsequently
acquired by the testator as a result of the testator
’
s ownership of
the devised securities:
(1)
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securities of the same organization acquired
because of an action initiated by the organization or any
successor, related, or acquiring organization, including stock
splits, stock dividends, and new issues of stock acquired in a
reorganization, redemption, or exchange, other than securities
acquired through the exercise of purchase options or through a plan
of reinvestment;
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and
(2)
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securities of another organization acquired as a
result of a merger, consolidation, reorganization, or other
distribution by the organization or any successor, related, or
acquiring organization, including stock splits, stock dividends,
and new issues of stock acquired in a reorganization, redemption,
or exchange, other than securities acquired through the exercise of
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purchase options or through a plan of reinvestment.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.253.
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CASH DISTRIBUTION NOT INCLUDED IN DEVISE.
Unless the will of a testator clearly provides otherwise, a devise
of securities does not include a cash distribution relating to the
securities that accrues before the testator
’
s death, regardless of
whether the distribution is paid before the testator
’
s death.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
SUBCHAPTER G. EXONERATION OF DEBTS SECURED BY SPECIFIC DEVISES
Sec. 255.301.
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NO RIGHT TO EXONERATION OF DEBTS. Except as
provided by Section 255.302, a specific devise passes to the
devisee subject to each debt secured by the property that exists on
the date of the testator
’
s death, and the devisee is not entitled to
exoneration from the testator
’
s estate for payment of the debt.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.302.
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EXCEPTION. A specific devise does not pass to
the devisee subject to a debt described by Section 255.301 if the
will in which the devise is made specifically states that the devise
passes without being subject to the debt.
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A general provision in
the will stating that debts are to be paid is not a specific
statement for purposes of this section.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.303.
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RIGHTS OF CERTAIN CREDITORS AND OTHER
PERSONS. (a) Section 255.301 does not affect the rights of
creditors provided under this title or the rights of other persons
or entities provided under Chapters 102 and 353.
(b)
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A debt described by Section 255.301 that a creditor
elects to have allowed and approved as a matured secured claim shall
8
be paid in accordance with Sections 355.153(b), (c), (d), and (e).
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
Sec. 255.304.
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APPLICABILITY OF SUBCHAPTER.
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This
subchapter is applicable only to wills executed on or after
September 1, 2005.
Added by Acts 2015, 84th Leg., R.S., Ch. 949 (S.B. 995), Sec. 18,
eff. September 1, 2015.
SUBCHAPTER H. EXERCISE OF POWER OF APPOINTMENT THROUGH WILL
Sec. 255.351.
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EXERCISE OF POWER OF APPOINTMENT THROUGH
WILL. A testator may not exercise a power of appointment through a
residuary clause in the testator
’
s will or through a will providing
for general disposition of all of the testator
’
s property unless:
(1)
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the testator makes a specific reference to the
power in the will; or
(2)
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there is some other indication in writing that the
testator intended to include the property subject to the power in
the will.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1,
eff. January 1, 2014.
SUBCHAPTER I. CLASS GIFTS
Sec. 255.401.
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POSTHUMOUS CLASS GIFT MEMBERSHIP.
(a)
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A right to take as a member under a class gift does not
accrue to any person unless the person is born before, or is in
gestation at, the time of death of the person by which the class is
measured and survives that person by at least 120 hours.
(a-1)
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For purposes of this section, a person is:
(1)
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considered to be in gestation if insemination or
implantation occurs at or before the time of death of the person by
which the class is measured; and
(2)
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presumed to be in gestation at the time of death of
the person by which the class is measured if the person was born
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before the 301st day after the date of the person
’
s death.
(b)
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A provision in the testator
’
s will that is contrary to
this section prevails over this section.
Added by Acts 2015, 84th Leg., R.S., Ch. 949 (S.B. 995), Sec. 19,
eff. September 1, 2015.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 844 (H.B. 2271), Sec. 21, eff.
September 1, 2017.
SUBCHAPTER J. JUDICIAL MODIFICATION OR REFORMATION
OF WILLS
Sec. 255.451.
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CIRCUMSTANCES UNDER WHICH WILL MAY BE
MODIFIED OR REFORMED. (a)
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Subject to the requirements of this
section, on the petition of a personal representative, a court may
order that the terms of the will be modified or reformed, that the
personal representative be directed or permitted to perform acts
that are not authorized or that are prohibited by the terms of the
will, or that the personal representative be prohibited from
performing acts that are required by the terms of the will, if:
(1)
AA
modification of administrative, nondispositive
terms of the will is necessary or appropriate to prevent waste or
impairment of the estate
’
s administration;
(2)
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the order is necessary or appropriate to achieve
the testator
’
s tax objectives or to qualify a distributee for
government benefits and is not contrary to the testator
’
s intent;
or
(3)
AA
the order is necessary to correct a scrivener
’
s
error in the terms of the will, even if unambiguous, to conform with
the testator
’
s intent.
(a-1)
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A personal representative seeking to modify or reform
a will under this section must file a petition on or before the
fourth anniversary of the date the will was admitted to probate.
(b)
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An order described in Subsection (a)(3) may be issued
only if the testator
’
s intent is established by clear and
convincing evidence.
(c)
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Chapter 123, Property Code, applies to a proceeding
10
under Subsection (a) that involves a charitable trust.
Added by Acts 2015, 84th Leg., R.S., Ch. 949 (S.B. 995), Sec. 19,
eff. September 1, 2015.
Amended by:
Acts 2017, 85th Leg., R.S., Ch. 844 (H.B. 2271), Sec. 22, eff.
September 1, 2017.
Sec. 255.452.
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JUDICIAL DISCRETION.
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The court shall
exercise the court
’
s discretion to order a modification or
reformation under this subchapter in the manner that conforms as
nearly as possible to the probable intent of the testator.
Added by Acts 2015, 84th Leg., R.S., Ch. 949 (S.B. 995), Sec. 19,
eff. September 1, 2015.
Sec. 255.453.
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RETROACTIVE EFFECT.
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The court may direct
that an order described by this subchapter has retroactive effect.
Added by Acts 2015, 84th Leg., R.S., Ch. 949 (S.B. 995), Sec. 19,
eff. September 1, 2015.
Sec. 255.454.
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POWERS CUMULATIVE.
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This subchapter does not
limit a court
’
s powers under other law, including the power to
modify, reform, or terminate a testamentary trust under Section
112.054, Property Code.
Added by Acts 2015, 84th Leg., R.S., Ch. 949 (S.B. 995), Sec. 19,
eff. September 1, 2015.
Sec. 255.455.
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DUTIES AND LIABILITY OF PERSONAL
REPRESENTATIVE UNDER SUBCHAPTER. (a)
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This subchapter does not
create or imply a duty for a personal representative to:
(1)
AA
petition a court for modification or reformation
of a will, to be directed or permitted to perform acts that are not
authorized or that are prohibited by the terms of the will, or to be
prohibited from performing acts that are required by the terms of
the will;
(2)
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inform devisees about the availability of relief
under this subchapter; or
(3)
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review the will or other evidence to determine
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