Loopholes that allow people to steal from the dead

December 10, 2006
Austin American-Statesman (TX)

Given the responsibility to carry out the last wishes of a person as expressed in a will, most people will try hard to honor them faithfully out of a sense of legal obligation and moral duty, if not personal affection and respect. But occasionally someone does not, and weaknesses in Texas law make it too easy for a dishonest executor to dishonor the dead and rob the estate, as American-Statesman staff writer Tony Plohetski reports in today’s editions.

One weakness in particular probably would surprise most Texans: Executors are not required to notify those named in the will as beneficiaries. That’s not a problem for executors who are honest and conscientious, because they will make it a point to distribute appropriately the assets of the estate to those named in the will.

State law does require executors to notify any charitable organizations named in a will. But no notice is required for anyone else, no matter what the relationship is to the dead person or the amount of money or value of property involved.

Of course, people who expect to be named in a will can serve as a check on an executor by going to the courthouse to examine the will. But that doesn’t help the beneficiary who might not presume that a remote relative, a good or long ago friend or even a perfect stranger has left him or her money, property or other valuables.

Another weakness in state law that might surprise most Texans is that it does not even require executors to file automatically an accounting for how they distributed the assets of an estate.

Executors must file a copy of the will with the court and then, within 90 days, a list of the dead person’s belongings. Heirs who suspect the executor is cheating must hire a lawyer and sue – or wait 15 months after the executor takes charge of the estate to compel an accounting in court.

Ironically, those who die without a will may be somewhat better off, because in those cases, the executor, usually a lawyer, must post a bond and get permission from the court to sell any of the estate’s property.

Finally, executors who illegally take assets from an estate for their own use appear to have little reason to fear criminal prosecution. Other lawyers and judges are usually reluctant to seek criminal charges, preferring to rely on civil actions. However, some district attorney offices, including Travis County’s, will file charges.

Sen. Jeff Wentworth, a San Antonio Republican whose district reaches into part of Travis County, has indicated an interest in studying these weaknesses, and he’s in a position to do something as chairman of the Senate Jurisprudence Committee.

The Legislature will convene Jan. 9. We urge it to take a look at the problems this newspaper reported today.