Chapter 123 Proceedings Involving a Charitable Trust and Other Notice to the Attorney General
Chapter 123 of the Texas Property Code requires notice to the Attorney General (AG) by any party initiating a proceeding involving a charitable trust. A charitable trust is broadly defined to include most proceedings affecting charity, including, but not limited to, proceedings involving trusts with a charitable purpose, charitable, nonprofit corporations and testamentary bequests to charity.
Notice is accomplished by sending to the AG, by registered or certified mail, a true copy of the petition or other instrument initiating the proceeding involving a charitable trust within 30 days of the filing of such petition or other instrument, but no less than 25 days prior to a hearing in such a proceeding. Notice is not required if the proceeding is initiated by an uncontested application that exclusively seeks the admission of a will to probate.
Direct your correspondence to the following address:
Financial Litigation and Charitable Trusts Division
Office of the Attorney General
P.O. Box 12548
Austin, TX 78711-2548
Failure to provide required notice will render any resulting judgment void or settlement voidable upon motion of the AG.
Please note that it is improper to name the Attorney General as a necessary party in a proceeding involving a charitable trust. The Attorney General will review the proceeding to determine if intervention is warranted.
Expediting Attorney General Review of Chapter 123 Proceedings
Providing the following information may expedite the AG’s review of your proceeding:
Other Required Notice Provisions
In addition to Chapter 123 of the Texas Property Code, several other statutory provisions require notice to the Attorney General as protector of the public interest in charity. Notice under these statutes is often required when there arechanges to a charitable trust or when there is a charitable interestbut there is no named charity that can be notified of a trust or estate issue or charitable gift.The following is a brief summary of these statutory notice requirements:
|Brief Description||Statutory Reference||Notice Requirement|
|Amending a charitable trust to be consistent with IRS provisions for tax exemption||Texas Property Code §112.056||Certain charitable trusts may be amended upon consent of the settlor to comply with IRS requirements. Notice is effective when a duplicate original is filed with the attorney general.|
|“Decanting” – Trustee exercise of powers of distribution from one trust to another in furtherance of trust||Texas Property Code, Chapter 112, Subchapter D, §112.074 (see also §112.078)||Notice required if a charity is a beneficiary, including a presumptive remainder beneficiary or when the trustee has authority to distribute to a charity or for charitable purposes.|
|Selecting a replacement charitable beneficiary when the named charitable beneficiary of a trust has ceased to exist||Texas Property Code §113.026||Notice required if trustee and settlor desire to replace charitable beneficiary when named charitable beneficiary of trust fails.|
|“Orphan Trust” - Relocating the administration of a charitable trust||Texas Property Code §113.030||Notice required of intent to relocate the grant-making function of a charitable entity.|
|Notice of an action on a contract involving a charitable trust||Texas Property Code §115.015||Plaintiff in an action on a contract involving a charitable trust must prove that before the 31st day after the date the action began, or any court approved date that is more than 30 days before judgment, notice was provided to the AG.|
|Judicial proceeding involving a charitable trust||Texas Property Code Chapter 123. Notice requirement at §123.003. See also Texas Property Code §115.011.||Notice required via certified or registered mail, within 30 days of filing of the pleading but no less than 25 days prior to a hearing.|
|Release or modification of restrictions the management, investment or purpose of an institutional fund under UPMIFA||Texas Property Code §163.007(b) and (c) – Uniform Prudent Management of Institutional Funds Act||Chapter 123 applies to judicial proceedings brought to modify an institutional fund under UPMIFA.|
|Release or modification of restrictions the management,investment or purpose of a small institutional fund under UPMIFA||Texas Property Code §163.007(d) – Uniform Prudent Management of Institutional Funds Act||Institution seeking to release or modify a restriction on a small fund may do so without court action. Notice citing facts sufficient to meet the statutory requirements is mandated at least 60 days prior to such release or modification.|
|Disclaimer of interest||Texas Property Code §240.0081 -Texas Uniform Disclaimer of Property Interests Act||Requires a trustee who is disclaiming an interest in property that would cause the interest not to become trust property without court approval to give notice to the Attorney General if a charity is entitled to notice; a charity entitled to notice is no longer in existence; the trustee has the authority to distribute trust assets to one or more charities that are not named in the trust instrument; or the trustee has the authority to make distributions for a charitable purpose described in the trust instrument, but no charity is named as a beneficiary for that purpose.|
|Judicial modification or reformation of will||Texas Estates Code §§255.451-255.455||Chapter 123, Texas Property Code, requiring notice to the Attorney General, applies to a proceeding under §255.451(a) that involves a charitable trust.|
|Decedent’s Will includes charitable beneficiary that cannot be notified||Texas Estates Code § 308.002(b)(4) and §308.003||Notice that complies with Texas Estates Code §308.003 is required not later than the 60th day after the date of an order admitting the will to probate, if a charity is a beneficiary under the Will and cannot be notified. Notice must be by registered or certified mail.|
|Validity of defective corporate acts||Texas Business Organizations Code §22.516||Notice is required of a judicial proceeding brought under § 22.512 if the organization is a charitable entity. (Effective September 1, 2019)|