Can Texans (or anyone) protect themselves from probate abuse?

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At Estate of Denial®, the question of “what can people do to protect themselves, their assets and their heirs?” is often asked.  Five years of studying probate culture and estate disputes yields “not a whole lot” as the most honest answer.  And this status will not change despite personal liberty and property rights being increasingly challenged unless the public educates itself on inheritance rights and other probate-related threats to help take a stand against the organized, systemic looting of property and freedoms occurring in courthouses, legal offices and associated venues across this country.

“Proper estate planning” is hardly the foolproof safeguard from abusive probate actions touted in legal industry product sales pitches, but it is necessary.  It should be done, however, with the knowledge that wills, trusts, guardianships and even powers of attorney are not failsafe mechanisms for protecting assets and in fact, today’s legal environment is a breeding ground allowing use of these instruments in ways absolutely contrary to their intended purposes.

Any reform of the probate system must include understanding its surrounding culture of corruption.  A recent column spoke to the network that can support Involuntary Redistribution of Assets (IRA) actions.  Though often perpetrated by a combination of disgruntled family members, wannabe heirs and members of the legal industry (lawyers, judges and other court-related personnel), financial professionals from CPAs to banks sometimes play a role.  In guardianships, questionable involvement on the part of Adult Protective Services (APS) employees, professional guardians and other social workers occurs.  Medical personnel responsible for evaluations (physical and psychological) have been known to abet IRA actions as also have proprietors of facilities that house elderly, incapacitated or disabled individuals.  Call it asset looting, property poaching or estate hijacking – any of these parties can (and too often do) derive direct or indirect benefit from abusive probate actions.

The legal industry purposefully complicates our judicial process to make navigating its channels difficult for non-legal individuals.  Excessive complications help maintain a system which – especially in probate matters – can be molded, amended or interpreted on demand to create and justify any desired outcome.

People targeted in abusive probate actions often emerge with a sense of betrayal by a justice system theoretically designed for citizen protection, but whose mission appears aborted.  To then discover the alternative use of our legal system as an exploitation vehicle whose ultimate purpose is the legalized financial extortion of hard-working Americans makes for a life-changing experience.

A good understanding of the threats facing an unsuspecting public with regard to abusive probate actions is found in observations collected from a review of IRA cases and interviews with IRA targets.

  • People have lost confidence in any accountability/disciplinary process related to lawyers and judges.  An uneven application of laws, rules and protocols often works against those not allied or otherwise affiliated with the jurisdiction’s legal industry.  Process needs to be reviewed and strengthened to provide responsiveness with regard to probate venue/instrument abuse.
  • Probate abuse cases are generally treated as civil matters making pursuit of justice difficult, if not impossible, for many injured parties.  Increased treatment of these cases as criminal matters would disincentivize many abusive situations.
  • Some estate looting is direct via a diversion of assets from designated heirs.  Other looting occurs through the legal process (i.e., contrived disputes generating billable hours).  A “win” does not ensure recovery of legal fees therefore establishing a secondary avenue of financial harm infliction.  Legal fee recovery for prevailing parties should become more accessible.
  • Disputes contrived by guardians, executors or trustees are more prevalent when estate funds can be used to bankroll litigation.  Personal liability or other accountability for estate administrators initiating legal action found to be frivolous or engaging in other forms of self-dealing should be considered.
  • The public is under the misconception that like doctors, all attorneys have professional liability insurance (PLI).  This is not the case and legal industry consumers would benefit from attorneys being required to disclose at the time of hiring whether or not they have malpractice insurance.
  • Probate courts are to file reports with the Texas Office of Court Administration indicating all payments of $500+ approved for court-appointed personnel.  Many courts currently do not provide this information and no penalty appears in practice.  Process should be reformed to include punitive actions for non-compliance.
  • As people are declared incapacitated, the courts and/or court-appointed personnel should be accountable when aggressive asset spend-down actions (specifically on teams of guardians/attorneys) lead to wards formerly with resources being thrown onto taxpayer-funded programs like Medicaid.
  • Guardianships are too often granted via ex parte hearings with minimum investigation.  Unsubstantiated allegations made against family members can serve as basis for granting guardianship with accusers being held to virtually no burden of proof and those accused of misconduct having no opportunity to proactively defend against allegations.  This process needs to be reviewed with stricter accountability implemented.
  • Allegations of abuse, neglect, theft, etc. used to deny guardianships should be referred for criminal prosecution both in the interest of public protection and also to ensure greater accountability of claims made by social services and other guardianship-related professionals.

A starting point for state legislatures in addressing these issues could include:

  • Review policy/procedures to determine level of compliance with current laws.
  • Enforce current laws.
  • Prosecute estate theft/probate abuse as criminal activity with potential penalty including jail time and NO parties being exempt from threat of prosecution.
  • Professional accountability with meaningful consequences (judges/lawyers).
  • Consider legislative oversight function to ensure bills are being implemented/executed as intended.
  • Simplify attorney/judicial complaint process so that hiring of an attorney isn’t needed.

Passing new laws is no cure-all for probate abuse or any other public policy issue as current laws protective of taxpayer interests are ignored on a daily basis.  Addressing the behavior of unethical individuals and the overall corrupt culture is key with oversight and enforcement as subsequent critical components.

Meaningful reform ultimately will require average people standing up for their rights.  Public pressure can be a powerful force.  The public – people who currently can’t do a lot to personally protect themselves – need to recognize this growing threat and realize how easily and frequently these injustices are occurring.  And it’s not just to the “rich.”  Estates of modest proportions are targeted as easily, sometimes more so, as they can’t be cost effectively defended.

So what should people do?  First, do your estate planning, but don’t then succumb to the “it can’t happen to me” mindset.  It can and that attitude is an invitation to predators.  Past that, there’s not a lot that personally can be done.  If someone wants to come after your estate, they can and likely will.

Estate looting is lucrative and benefits many influential parties.  With that, lots of people know it happens, but few have any substantive inclination to stop it.  Increased public awareness and public pressure, however, could be a big help.  To that end, get involved by learning more about the issue.  Pay attention to what’s happening in your backyard.  Alert your local elected officials that this poaching of people’s liberty and property via probate won’t be tolerated.

The idea of probate instruments and venues positioning people’s assets as “up for grabs” is a foreign concept for many, but it’s no less a legitimate threat.  Public awareness and outrage could go a long way in the early stages of this battle.

Lou Ann Anderson is an advocate working to create awareness regarding the Texas probate system and its surrounding culture. She is the Online Producer at www.EstateofDenial.com, a Policy Advisor with Americans for Prosperity Foundation – Texas and a Director of Women on the Wall. Lou Ann may be contacted at info@EstateofDenial.com.

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  • http://www.facebook.com/people/Mary-Allard/1356524676 Mary Allard

    This post is “so” good that I put it on my Facebook page. The addition of your columns of “solutions” to the growing problems, is fantastic advice for everyday real people to begin to make a difference. We all need to take up the cause and spread the word!!! As a CPA and Estate Planner, appalled at what has become of my area of practice, – I’m “sold” on this!!!!!

  • Jay Pia

    The stories are legend and many courts act indifferent thus far. It reminds me of when domestic violence was considered a ‘family matter’. My own sister looted our parents estate as we protested non-stop in probate until we finally ran out of money and overwhelmed with disgust at the entire process and the parties including the lawyers, judges, and her. Yes, its a nightmare, watching your parents dying desires get shredded.

  • denbenenki

    YES!

    Best commentary on the subject I have ever read and I read daily. You nail it with: “The legal industry purposefully complicates our judicial process …” and I add, unpublished cases covers every bad decision they have to openly make to deny you a win.

    ”Estates of modest proportions are targeted as easily,…”
    TRUE. My case is a Trust with a value high of $100,000. The bad Trustee has been able to keep billing to where I now owe him. By my count that would have to be split between 3 Superior Court Judges, 3 Appellate Court Judges and at least one to 5 Supreme Court Judges plus the Trustee’s attorney.

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