Overhaul of probate law proposed

Tony Plohetski (tplohetski@statesman.com; 512-445-3605)
December 21, 2006
Austin American-Statesman (TX)

Two veteran Texas lawmakers say they plan to file bills aimed at making it more difficult for people to steal from or mismanage estates and ensuring that the final wishes of the dead are properly carried out. State Sen. Jeff Wentworth, R-San Antonio, and state Rep. Will Hartnett, R-Dallas, said their bills would require executors of estates – the people chosen to distribute a person’s money and property – to send written notices to anyone named in a will, detailing what they are supposed to receive.

Wentworth is chairman of the Senate Jurisprudence Committee; Hartnett chairs the House Judiciary Committee. The legislative session begins next month.

The proposals come after the American-Statesman reported earlier this month that Texas probate laws do little to make sure a deceased person’s money or property reaches those named in a will. The laws, written more than a century ago, include little government oversight and have gaps that allow unscrupulous executors to steal from or mismanage the estates, the newspaper reported.

No organization monitors how often estate thefts happen, but the report found numerous cases throughout Texas in which executors are accused of taking money, homes, vehicles and other assets that should have gone to others.

An Austin lawyer, Terry Erwin Stork, was recently charged with mismanaging and stealing from two Travis County estates. Stork also has been sued for mishandling an estate in Bexar County and remains under criminal investigation.

“The extent to which people have squandered hundreds of thousands of dollars that didn’t belong to them is quite shocking and needs to be fixed,” Wentworth said.

Wentworth said details of his proposal are still being drafted.

State laws do not require executors to notify those named in a will, except charitable groups.

Nor are executors required to tell probate courts how they divided assets.

State laws also make a person who suspects estate theft wait 15 months in most instances before demanding an accounting of how an executor split the property.

Hartnett said he asked representatives from the Texas Academy of Probate Lawyers to help draft guidelines for his bill after reading the Statesman report.

Austin probate lawyer Glenn Karisch, the academy’s legislative liaison, said the group will give lawmakers their suggestions in early January.

Karisch said the proposal would require executors to write letters to people named in a will and attach a copy of the will. They would then have to file copies of the letters with probate courts.

“We think it is a good idea, and we just want to make sure the legislation is well thought out and will work as a practical matter,” Karisch said.

Many probate experts, lawyers and judges have said they like Texas’ system because of its simplicity and would be reluctant to trade that convenience for more court oversight of executors.

They also said a requirement that executors notify heirs could mean higher legal costs for settling a will. But the proposal is receiving support from a growing number of lawmakers.

Incoming Sen. Kirk Watson, D-Austin, who was elected in November, said he began talking to probate lawyers immediately after the Statesman report and plans to meet soon with Travis County Probate Judge Guy Herman and other probate experts.

“It is shocking that you would have people that would take advantage and victimize people under those circumstances,” Watson said. “I think the goal of an efficient system is a good thing, but I don’t think fairness should ever come in second to efficiency.”

Sen. Robert Duncan, R-Lubbock, a member of the Senate Jurisprudence Committee, said he would support a proposal requiring executors to notify beneficiaries and that the measure “just seems fundamental.”

“But the more restrictions you put in, the more it costs,” he said. “It is just a balancing act here.”