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Texas Statutes (Last Updated: January 4, 2014) |
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PROBATE CODE |
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Chapter XIII. GUARDIANSHIP |
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Part 4. ADMINISTRATION OF GUARDIANSHIP |
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Subpart M. TAX-MOTIVATED, CHARITABLE, AND OTHER GIFTS |
Sec. 865. POWER TO MAKE CERTAIN GIFTS AND TRANSFERS
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(a) On application of the guardian of the estate or any interested person and after the posting of notice, the court, after hearing, may enter an order that authorizes the guardian to apply the principal or income of the ward's estate that is not required for the support of the ward or the ward's family during the ward's lifetime toward the establishment of an estate plan for the purpose of minimizing income, estate, inheritance, or other taxes payable out of the ward's estate, or to transfer a portion of the ward's estate as necessary to qualify the ward for government benefits and only to the extent allowed by applicable state or federal laws, including rules, regarding those benefits, on a showing that the ward will probably remain incapacitated during the ward's lifetime. On the ward's behalf, the court may authorize the guardian to make gifts or transfers described by this subsection, outright or in trust, of the ward's property to or for the benefit of:
(1) an organization to which charitable contributions may be made under the Internal Revenue Code and in which it is shown the ward would reasonably have an interest;
(2) the ward's spouse, descendant, or other person related to the ward by blood or marriage who are identifiable at the time of the order;
(3) a devisee under the ward's last validly executed will, trust, or other beneficial instrument if the instrument exists; and
(4) a person serving as guardian of the ward if the person is eligible under either Subdivision (2) or (3) of this subsection.
(b) The person making an application to the court under this section shall outline the proposed estate or other transfer plan and set forth all the benefits that are to be derived from the plan. The application must indicate that the planned disposition is consistent with the ward's intentions if the ward's intentions can be ascertained. If the ward's intentions cannot be ascertained, the ward will be presumed to favor reduction in the incidence of the various forms of taxation, the qualification for government benefits, and the partial distribution of the ward's estate as provided by this section.
(c) The court may appoint a guardian ad litem for the ward or any interested party at any stage of the proceedings if it is deemed advisable for the protection of the ward or the interested party.
(d) A subsequent modification of an approved plan may be made by similar application to the court.
(e) A person who makes an application to the court under this section shall mail notice of the application by certified mail to:
(1) all devisees under a will, trust, or other beneficial instrument relating to the ward's estate;
(2) the ward's spouse;
(3) the ward's dependents; and
(4) any other person as directed by the court.
(f) In an order entered under Subsection (a) of this section, the court may authorize the guardian to make gifts as provided by Subsection (a) of this section on an annual or other periodic basis without subsequent application to or order of the court if the court finds it to be in the best interest of the ward and the ward's estate. The court, on the court's own motion or on the motion of a person interested in the welfare of the ward, may modify or set aside an order entered under this subsection if the court finds that the ward's financial condition has changed in such a manner that authorizing the guardian to make gifts of the estate on a continuing basis is no longer in the best interest of the ward and the ward's estate.