Grave robbing, property poaching: estate planning’s not-oft-discussed threat

With National Estate Planning Awareness WeekEstate of Denial® joins the legal and financial industries in promoting financial awareness and the need for proper estate planning.  And our take – significantly different from the standard talking points and not likely so welcomed – is important perspective for an unsuspecting public when it comes to probate actions and probate instruments like wills, trusts, guardianships or powers of attorney.

Estate of Denial® holds a different set of views from a typical lawyer or financial counselor.  With a contrasting viewpoint arising from a study of probate abuse targets, EoD offers a “sadder, but wiser” perspective coupled with practical insight on the realities of today’s probate environment.

Estate planning’s ‘dark side,’ a column written last year during this time frame, lays out the problem:

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.

That’s where it begins.  And abusive probate actions can endure for what seems an eternity.  Manufactured estate disputes are filed daily.  Legitimacy, credibility are not required.  A relative feeling slighted or some party with an inflated sense of entitlement is all that’s needed.  “Frivolous lawsuits” are known for destructive capabilities.  Those occurring  within probate venues are no exception.

Wrongful diversion (i.e., direct theft) of estate assets can happen via settlement of a lawsuit – or a lawsuit threat – which serves to functionally extort assets from rightful heirs or beneficiaries seeking to cut losses and avoid prolonged litigation.  Sometimes estate assets are manipulated or withheld from legitimate heirs or beneficiaries so as to provoke legal action by those parties.  The ensuing case then allows a dishonest estate administrator and/or attorney to benefit from the billable hours generated (i.e., indirect theft) in defense of a contrived legal 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.  Additional disadvantage comes with dependency on pricey legal practitioners whose welfare depends on good relations with court personnel and opposing counsel moreso than with their own clients.  Here, all profit except the IRA target.  Can Texans (or anyone) protect themselves from probate abuse? discussed many other frustrations experienced by probate abuse targets.

Legal disciplinary channels – for lawyers or judges – are often viewed dimly by those having attempted recourse.  In Texas, neither the State Bar of Texas nor the State Commission on Judicial Conduct are 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.

Think about that.  Many professionals wouldn’t consider operating businesses without PLI insurance.  Lawyers, on the other hand, seem without trepidation to operate without such insurance.  Guess it’s not a worry when lawyer-on-lawyer legal actions aren’t common and if they happen, the legal industry’s protectionist nature is good at minimizing consequences.

Consumer protections enjoyed in other industries are absent within the legal industry.  Passing new laws is no cure-all for probate or any other legal abuse as laws protective of taxpayer interests are ignored on a daily basis.  Addressing the overall corrupt culture with meaningful oversight and enforcement is what the public must demand.

Much is said and written about the importance of estate planning – and it is an important task to complete.  Understand, however, it’s no guarantee that your wishes will be honored, your property distributed as directed.  That said, failure to properly plan can be disastrous.  Giving heirs and beneficiaries at least the fighting chance that estate documents bring seems an obvious choice.

Meanwhile, an unsuspecting public needs to learn what’s already known to the legal industry and growing numbers of other unscrupulous individuals – modern-day grave robbers and other property poachers currently thriving within today’s legal system.  Don’t succumb to the “it can’t happen to me” or the mindset that your estate isn’t large enough to appeal to looters.  It can happen to anyone and estates of modest values are equally – sometimes moreso – at risk.

Learn, understand and remember.  Everything you have could depend on it.

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 – Texas and a Director of Women on the Wall. Lou Ann may be contacted at info@EstateofDenial.com.

Share
Commentary, Featured