An aging population, longevity, economic uncertainty and liberal definitions of “incapacitation” are factors creating an environment in which people of all ages find their individual liberties and assets being threatened.  Probate instruments (wills, trusts, guardianships and powers of attorney) are becoming choice tools in these efforts.  Mounting pressure has states like Texas and Arizona addressing probate abuse with resulting policy battles positioning lawmakers between a public demanding meaningful probate reform and a legal industry seeking to maintain its lucrative status quo viewed by many as predatory in nature.

Probate reform is about protecting people from a legal venue that has become a growth industry for unscrupulous Involuntary Redistribution of Assets (IRA) perpetrators adept at using probate courts and instruments to hijack personal liberties as well as to loot private assets.  These actions often negatively impact taxpayers as IRA actions can lead to people never before eligible or inclined to also end up on public welfare rolls.

Senate Bill 286, recently left pending before the Texas’ Senate Jurisprudence Committee, illustrates a growing tension between legislators and those adamantly seeking reform.  If passed, this bill allows judges in guardianship proceedings to assess costs, including attorney’s fees, “among the parties as the court finds is fair and just.”

At a recent hearing, Sen. Chris Harris (R-Arlington), the bill’s author, said he’s trying to preserve wards’ estates – currently the main source from which guardianship-related legal costs are deducted – by providing a vehicle to hold initiators of non-meritorious cases financially responsible.

Guy Herman, Presiding Judge of the Statutory Probate Courts of Texas, spoke in favor of the bill attributing certain probate disputes to sibling rivalry or long-standing family grudges.  While this bill and SB 220, another bill featuring a similar provision, are theoretically sound, advocates with probate court experience rightfully fear a different use of such legislation.

Probate judges, often in conjunction with probate lawyers, are routinely cited as sources of estate abuse.  Growing media scrutiny supports this trend though criminal or professional consequences rarely occur.  And if they can afford participation in the pay-to-play civil court system, targeted parties still often suffer unresolved, sometimes irreparable, harm.

The legal industry comprises lawyers, judges and other court-associated personnel and its talking points promote a “blame the disgruntled families” position.  Limited legitimacy to this point exists.  Interested parties responding to unnecessarily aggressive guardianships or other estate looting actions also legitimately occurs – a point these insiders rarely acknowledge.  And with this, tension over prospective legislation endures.

Targets of abusive probate actions know how theoretical public safeguards built into the probate system can in fact be executed in a manner harmful to the public and beneficial to IRA perpetrators.  Opponents of SB 286 see the bill as giving judges a new retaliatory power against families fighting questionable probate actions.  This power could additionally serve as a deterrent for those seeking to further address probate corruption.

Taxpayer-funded entities using taxpayer funds to lobby for government-friendly legislation that doesn’t necessarily serve taxpayer interests is a troubling trend in and of itself.  This recently published Dallas County legislative priority shows how taxpayer-funded lobbying can work as well as gives new perspective to potential uses of SB 286:

Exempt the county from paying the fees of a poor ward in probate court if the ward’s family is affluent. The probate judge would charge the fee to the family in these cases.

SB 286 says the court may allocate costs “among the parties as the court finds is fair and just.”  While the bill may righteously intend to protect against frivolous probate actions, might a Dallas County probate judge use its non-specific language for the “fair and just” assessment of probate court costs because families appear “affluent”?  This could be especially dangerous at a time when overextended counties are urgently looking for cost-shifting opportunities.

Stranger things happen in probate courts on a daily basis.

While Sen. Harris appeared quite earnest in speaking about SB 286, experience fosters extreme caution and skepticism in those having lived through probate system abuse so the tension continues.  Opportunity exists, however, if this measure were part of a reform package.

The Arizona legislature is currently looking at HB 2424 which provides an important starting point for key probate reform measures.  The bill:

• requires probate law training for judges.
• establishes an accountability panel with private citizens.
• eliminates hearsay from evidence.
• enforces the rights of personal directives.
• keeps families involved in their loved one’s care.
• demands a written accounting of expenses from the ward’s estate.
• allows for a change of fiduciary.

HB 2424 was created in response to experiences documented by a growing state-level grassroots reform movement that includes probate abuse victims.  As in Texas, Arizona lawmakers find themselves between citizens demanding reform of a corrupt system and the system’s caretakers who advocate measures viewed by many as self-serving and “feel good” rather than substantive.

Legal and financial interests that strongly oppose HB 2424 are instead supporting SB 1499 which provides few public protection remedies and was written largely by those who control – and often profit from – Arizona’s probate system.

Despite opposition efforts from four different lobbying houses, HB 2424 continues to make its way through the Arizona legislature due to lawmakers so far connecting more with public reform demands than with legal and financial interests controlling the state’s probate system.

With all the 82nd Texas Legislature is facing, probate reform was never expected to be a hot-button issue.  At the same time, however, vigilance is required.  Stopping unintended but potentially harmful legislation can be as important as passing good.  An Arizona-style probate reform package incorporating SB 286 or similar language is needed in Texas.  And if strongly opposed by the legal industry, that’s a good signal the bill is likely to provide the public true protections from the otherwise predatory culture surrounding the probate system.

For more information:

Disney grandson at forefront of Arizona reform (March 4, 2011)

The Parrie Haynes Ranch is a 4,500 acre property located in Bell County just south of Fort Hood and not far from the new Texas A&M University-Central Texas campus.  It was left in a will to the state of Texas for “the use and benefit of orphan children” and in recent years has fulfilled this directive plus more.  Though 45 minutes north of the Texas State Capitol, few legislators have probably visited the facility whose future is now in question and fate may be decided through House Bill 244.

On Nov. 12, Rep. Will Hartnett, R-Dallas, pre-filed House Bill 244 which requests control of the trust containing the Parrie Haynes Ranch to be transferred from the Texas Youth Commission to the Department of Family and Protective Services.

Rep. Ralph Sheffield, R-Temple, has also been advocating a transfer of the trust, but believes the Texas Parks and Wildlife Department is the appropriate designee, a point with which the Sunset Advisory Commission agreed and the transfer would have been completed except for the filing of Hartnett’s bill.

In a November 2008 report, the Sunset Advisory Commission recommended that “TPWD and TYC jointly seek representation by the Attorney General to pursue a modification of the Trust terms and purpose of the Parrie Haynes Trust that would designate TPWD as the state agency responsible for the Ranch and Trust.”  The Commission also directed TPWD to increase its use of the Parrie Haynes Ranch to be as consistent as possible with the will’s intent.

Other Commission key findings included that not only was TPWD well positioned to operate the ranch in accordance with Parrie Haynes’ wishes, but that in keeping the ranch at TYC, “Texas misses an opportunity to provide improved outdoor access to the state’s youth.”

The Commission found that as the ranch is held in trust, the Legislature cannot simply transfer the property to TPWD.  The Commission, citing the Texas Property Code, said the court can modify a trust to ensure that it conforms as closely as possible to the original intent.  Intervention by the Attorney General is appropriate both as that office has the primary duty of representing state agencies in civil cases and because state law also authorizes the Attorney General to intervene in a proceeding involving a charitable trust, on the behalf of the interest of the general public of the State.

The Parrie Haynes Ranch was left to the State Orphan Home of Texas upon Haynes’ death in 1957.  Haynes’ will was probated in 1962 and probate documents specified the following with regard to her residuary estate (which included the ranch):

To Have and to Hold above described residuary estate unto the said State of Texas for the use and benefit of orphan children as provided in the Parrie Haynes will, and its assigns forever.

While first assigned to the Corsicana State Home (originally known as the State Orphans’ Home), the Parrie Haynes Ranch was then placed under control of the Texas Youth Development Council which later became the Texas Youth Commission.

TYC operated various programs at the ranch throughout the years with mixed results.  In the early ’90s, an agreement with TPWD was brokered and the department assumed management of the ranch as well as the responsibility to host outdoor learning and recreational opportunities for all ages, but with an emphasis on youth programs.

Friends of the Parrie Haynes Ranch, a citizens volunteer support organization, helped facilitate this arrangement.  The group continues to support TPWD’s management saying the department provides both good stewardship of the land and strong program development capabilities.

The combination of these two factors appears to not just fulfill Parrie Haynes’ wishes regarding the “use and benefit” of her ranch for orphaned children, but perhaps would even have exceeded her wishes due to the wide range of young people impacted under TPWD leadership.

TPWD works with the Texas Game Warden Association to provide year-round adventure activities and educational programs for Texas’ youth. The Parrie Haynes Ranch Equestrian Center is routinely used by the Texas Equestrian Trail Riders Association for trail rides as well as youth outreach activities.

The Parrie Haynes Ranch hosts camps sponsored by the C5 Youth Foundation, formerly known as Camp Coca-Cola.  The C5 program provides selected youth five years of intensive leadership experiences in a summer camp setting, year-round leadership development programs and community service, and preparation for continuing education and career development.  With the Parrie Haynes Ranch as one of the summer camp settings, the Foundation invested $2.1 million in the property with the building of nine bunkhouses, two lodges along with a dining hall, office building and pool.

TPWD has also coordinated use of the ranch with Boy Scout troops as well as with the Killeen Independent School District.  A Temple Daily Telegram report indicated Gold Star families from Fort Hood as potential future users of the ranch.

Members of the Friends of the Parrie Haynes Ranch group are concerned that a transfer to the DFPS could lead to a sale of the property.  The land is believed to be worth perhaps $20 million and HB 244 clearly offers sale as an option.  The bill also lists transfers of functions, activities and property between DFPS and TYC while TPWD responsibilities cease.

The Temple Daily Telegram quoted Hartnett explaining the bill:

“it basically takes it away from Parks and Wildlife. We don’t need a state agency turning the trust into a state park.  Parks and Wildlife cares about parks, not orphans.”

Per the Telegram, filing of the bill was prompted upon the Center for Public Policy Priorities contacting Hartnett because of Hartnett’s background as “a successful trust attorney.”  “I’m the House member most knowledgeable about state trust law,” Hartnett said.

F. Scott McCown, Center for Public Policy Priorities executive director, is quoted saying “there is nothing in the legislation that says the property must be sold.”  He further says the property could be leased for significantly more than the $45,000 paid annually by Texas Parks and Wildlife.  And while also suggesting that anyone wanting the Parrie Haynes Ranch for a park should buy it for that purpose, McCown insists no buyers for the property have been identified.  Should the property be sold, however, McCown says its proceeds “could help orphans pay for things like summer camps, college, class rings, graduation announcements or proms.”

Hartnett says the Legislature is the proper venue for seeking the HB 244 transfer:

“What this bill is about is whether the state is going to honor its own laws and obligations or try to turn this property into a park,” Hartnett said.  “If the state does not handle this by the book, there will be no other charitable contributions like this to the state again.”

And regarding the Parrie Haynes Ranch issue:

“They need to look at this as if it was owned by the Salvation Army,” Hartnett said.  “It’s not the states’ money, and it’s not their money.  It’s the orphans’ money. If somebody wants to trample orphans’ rights, let’s do it in the public arena. I’ll take that debate any day.”

The Bell County Commissioners have weighed in with a resolution that supports keeping the ranch under management of TPWD.  Commissioner John Fisher termed the potential of selling off the property as “a travesty to the youth of Texas” while Commissioner Richard Cortese described TPWD’s oversight of the ranch as “a natural fit.”

The merits of House Bill 244 remain something of a mystery unlike the plan for TPWD control of the Parrie Haynes Ranch which was statutorily-based, fiscally responsible and practical in its assignment and utilization of resources.  It was a sensible approach to providing benefit for Texas youth while honoring Parrie Haynes’ final wishes.

Transfer of the Parrie Haynes Ranch away from TPWD and its successful operational model would be a blow to the many who enjoy and learn from the wilderness experience the ranch offers.  It would likely end up as an additional blow to rights Parrie Haynes believed she had in determining the final distribution of her assets.

Probate disputes are receiving increasing media attention and the battle over the Parrie Haynes Ranch is no exception.  Estate of Denial™ follows Involuntary Redistribution of Assets (IRA) cases in which probate venues and/or probate instruments (wills, trusts, guardianships, powers of attorney) are used to loot assets of the dead, disabled or incapacitated.  These cases often involve use – or abuse – of the legal system to divert assets from intended heirs or beneficiaries.  The Parrie Haynes Ranch provides important opportunity to highlight the unanticipated developments or challenges to one’s wishes that can occur with even the most properly prepared estate plans.

Rep. Hartnett talked of debating “any day” in a public arena those who would “trample orphans’ rights.”  House Bill 244 has been assigned to the Committee on Judiciary & Civil Jurisprudence and and presumably, a public hearing is ahead.  Supporters of the Parrie Haynes Ranch likely join Rep. Hartnett in looking forward to that public discussion.