Sec. 854.106. NO SURVIVING SPOUSE, EXECUTOR, OR ADMINISTRATOR. (a) If a surviving spouse, or the executor or administrator of a member's estate, would be entitled to make an election under Section 854.105 because of the death of the member, the heirs of the deceased member may make that election if:

(1) no surviving spouse exists;

(2) no petition for the appointment of a personal representative of the member is pending or has been granted;

(3) 30 days have elapsed since the death of the member;

(4) the value of the entire assets of the member's estate, excluding homestead and exempt property, does not exceed $50,000;

(5) there are not more than three heirs; and

(6) on file with the retirement system is a certified copy of a small estates affidavit that has been approved and filed in accordance with Chapter 205, Estates Code, or an original affidavit as described by Subsection (b).

(b) If no affidavit has been filed with the clerk of the court having jurisdiction and venue as provided by Chapter 205, Estates Code, the retirement system may accept instead an affidavit sworn to by two disinterested witnesses, by the heirs who have legal capacity, and, if the facts warrant, by the natural guardian or next of kin of any minor or incompetent who is also an heir. The affidavit shall include the names and addresses of the heirs and witnesses, establish the facts listed in Subsection (a), include a list of the assets and liabilities of the estate, show the facts that constitute the basis for the right of the heirs to receive the estate, and show the fractional interests of the heirs in the estate as a result of those facts.

(c) If the retirement system, acting through the director or a person designated by the director, approves the affidavit, the heirs can make the election if each heir agrees to the election.

(d) In this section, "heirs" has the meaning assigned by Chapter 22, Estates Code, except that the term excludes any persons who have filed with the retirement system a proper disclaimer or renunciation.

Added by Acts 1995, 74th Leg., ch. 514, Sec. 15, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 121, Sec. 17, eff. Jan. 1, 2002.

Amended by:

Acts 2017, 85th Leg., R.S., Ch. 324 (S.B. 1488), Sec. 22.044, eff. September 1, 2017.