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)