         THEA~TORNEYGENERAI,
                  OF TEXAS




The Honorable Henry Wade           Opinion No. H-989
District Attorney
6th Floor, Records Building        Re: Necessity of inheritance
Dallas, Texas 75202                tax receipt prior to distri-
                                   bution 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 dece-
          dent, 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 dis-
tribution 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 upon
             the closing of a guardianship where the estate
             will not be further administered.

                                  Very truly yours,




APPROVED:




DAVID   M.   KENDALL, First Assistant




                              page 4110
.   .




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




        Opinion Committee

        km1




                                   p. 4111
