THEA~TORNEYGENERAI, 

OF TEXAS 

The Honorable Henry Wade 

District Attorney 

6th Floor, Records Building 

Dallas, Texas 75202 

Opinion No. H-989 

Re: Necessity of inheritance 

tax receipt prior to distribution of estate of ward under 

section 408 of Probate Code. 

Dear Mr. Wade: 

You have requested our opinion concerning whether a 

court may order the distribution of the estate of a deceased 

ward at the closing of a guardianship without finding that 

all inheritance taxes have been paid. 

Sections 404 and 405 of the Probate Code provide for a 

final accounting and the closing of a guardianship upon the 

death of a ward. Section 408(b) provides in part: 

Upon final settlement of an estate . . . the 

court shall order . . . in case of a decedent, that a partition and distribution be 

made among the persons entitled to receive 

such estate. 

In Easterline v. Bean, 49 S.W.Zd 427 (Tex. 19321, the court 

quoted from Young v. Gray, 60 Tex. 541 (18831, in which it 

was stated: 

The estate of the deceased ward should, 

like the estate of any other deceased 

person, be turned over as soon as possible, 

by the guardian, to the administrator or 

such other person or persons as by law may 

be determined to be entitled to it. 

Easterline v. Bean, supra at 429. Where no administration Of 

a ward's estate 1s necessary, the closing of a guardianship 

pursuant to section 408 results in the final distribution of 

the ward's estate. You have asked whether such a final distribution may be made without a finding that all inheritance 

taxes due the State have been paid. 

P. 4109 
The Honorable Henry Wade - page 2 (H-989) 

Section 410 of the Probate Code provides in part: 

[Nlo estate of a decedent shall be closed, 

unless the final account shows, and the 

court finds, that all inheritance taxes due 

and owing to the State of Texas with respect 

to all interests and properties passing 

through the hands of the representative have 

been paid. 

Section 3(aa) of the Probate Code defines "representative" to 

include guardians. We note that under some provisions of the 

Code there would generally be no closing of an estate; ,the 

court does not ascertain the contents of the estate or order 

a specific distribution thereof. See, SS 48, 89. However, 

when a guardianship is involved, section 408 requires a court 

to orderthe specific distribution of the estate. When no 

administration of the ward's estate is to take place, in our 

view this distribution upon the closing of the guardianship 

is a closing of an estate within the meaning of section 410. 

Accordingly, in our opinion the final account of a guardian 

of a deceased ward must show, and a court must find, that all 

inheritance taxes due the State have been paid prior to the 

distribution of the estate to the ward's heirs. 

SUMMARY 

Section 410 of the Probate Code requires 

that a court find that all inheritance taxes 

due the State have been paid prior to the 

court's distribution of a ward's estate 

the closing of a guardianship where the 

will not be further administered. 

Very truly yours, 

upon 

estate 

APPROVED: 

DAVID M. KENDALL, First Assistant 

page 4110 
. . 

The morable Henry Wade - page 3 (H-989) 

Opinion Committee 

km1 

p. 4111