Estate planning’s ‘dark side’

iStock_000003428397Medium

As National Estate Planning Awareness Week (Oct. 17 – 23) promotes this critical personal finance activity, the week also provides education opportunities for legal consumers on the often unrecognized yet growing threat posed to property and inheritance rights via corrupt probate venues and probate instrument abuse.

Involuntary Redistribution of Assets (IRA) actions occur as property rights and personal freedoms are targeted through probate venues or instruments like wills, trusts, guardianships and powers of attorney.  Actions are often initiated by a combination of attorneys (and sometimes other “professionals”), disgruntled family members and/or wannabe heirs.

Legal consumers should understand that “proper estate planning” is not the failsafe asset protection mechanism touted in legal industry product sales pitches.  In fact, today’s legal environment is a breeding ground often using these instruments in ways contrary to their intended purposes.

Estate planning is big business with probate plundering an illicit offshoot. Manufactured estate disputes are created by filing claims against estates.  Actions need not be legitimate or credible – a relative feeling slighted or a family connection sensing entitlement is sufficient.  “Frivolous lawsuits” are known for destructive capabilities with probate being one more venue in which they occur.

Settlement of a lawsuit can functionally extort assets from rightful heirs or beneficiaries seeking to cut losses and avoid further litigation.  Tactics can bring a withholding of estate assets from legitimate heirs or beneficiaries so as to provoke legal action by those parties.  Estate administrators and/or attorneys then benefit from billable hours generated in defense of a dishonestly perpetrated action.

Steal $250,000 from a bank, it’s a crime.  The same diverted from an estate relegates harmed parties to the “pay-to-play” civil court system which is expensive and, for many, cost prohibitive.  Whether defending against a contrived claim or challenging a questionable guardianship, additional disadvantage comes with dependency on pricey legal practitioners whose welfare depends on good relations with court personnel and opposing counsel more so than with their own clients.  Here, all profit except the IRA target.

Disciplinary channels for lawyers and judges theoretically exist, but neither the State Bar of Texas nor the State Commission on Judicial Conduct is often seen as effective or credible.  Legal consumers wrongly assume attorneys carry professional liability insurance (PLI) when many do not.  In fact, the State Bar of Texas Board of Directors voted in January 2010 against a recommendation not mandating lawyers to carry PLI, but merely a transparency measure requiring lawyers’ disclosure of PLI coverage.

Consumer protections enjoyed in other industries are absent within the legal industry.  Passing new laws is no cure-all for probate abuse as laws protective of taxpayer interests are ignored on a daily basis.  Addressing the behavior of unethical individuals and the overall corrupt culture is critical with oversight and enforcement as subsequent components.

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.

Share
Commentary
  • Cooper Pie

    Thanks for the post, and I don’t know much about estate planning. So I’ve been looking at getting help with it. So if anyone knows of any that could help me in the Tucson Arizona area then that would be great.