Once again we’re here at National Estate Planning Awareness Week (Oct. 19 – 25).
In conjunction with this time, the Real Property, Trust and Estate Law section of the American Bar Association is offering a free webinar, Estate Planning: How to Get Going and Why Not to Do It Yourself, at 1 p.m. on Thursday, Oct. 23.
The RPTE offers this rationale as to why the public should participate:
Statistical studies show that 55% of Americans die without a will or estate plan. This free program informs the non-lawyer public how to start estate planning (wills, powers of attorney and trusts) by providing a set of practical first steps. Our panel of lawyer and trust officer experts will also explain why simply signing a will or power of attorney with a “do it yourself” plan may actually be worse than doing nothing, costing a “special needs” family member the loss of government benefits or resulting in an ex-spouse inheriting assets. The program is intended for the general public and does not require a background in the law of wills or trusts or tax.
As an experienced consumer of legal services, the perspective put forth is valid enough, but as an observer of legal industry practices, entry into probate venues can bring unanticipated results harmful to perhaps the originator of estate planning documents (as in cases of a guardianships or powers of attorney) or designated heirs and/or beneficiaries (as in cases involving trusts or wills).
Earlier this year, an EstateofDenial.com article entitled Probate abuse: The candid reality in Texas and beyond acknowledged the importance of proper estate planning yet warned of its dark side, a side thriving and growing thanks to the legal system’s generally corrupt culture. And probate venues are a particular source of such illicit activity.
Legal consumers should understand that “proper estate planning” does not provide the security espoused 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 fail safe mechanisms for protecting assets. In fact, today’s legal environment is a breeding ground for often using these instruments in ways contrary to their intended purposes.
While property rights of the dead, the disabled and/or the incapacitated are frequent targets using wills, trusts and powers of attorneys, guardianships also pose special threats to civil liberties.
The article pointed out two dangerous mindsets that cause people to become more vulnerable. First, people think they don’t have enough money to be a target. Second, they think that “proper estate planning” will protect them.
Wealth is relative – there’s always someone with more, someone with less and any estate can be targeted. Probate abuse can happen to anyone. Estates of modest values have significant appeal – as much as higher dollar estates – as assets can be enough to go after, but not so much that legitimate heirs or beneficiaries can cost effectively defend their inheritance rights in court.
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. Unscrupulous attorneys to pursue such actions are easily found. “Frivolous lawsuits” are known for destructive capabilities. Those occurring within probate venues are no exception.
Being on the receiving end of such an action creates an untenable position. 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 more so than with their own clients. Here, all profit except the targeted individual, heir or beneficiary. Can Texans (or anyone) protect themselves from probate abuse? further discusses frustrations probate abuse targets experience.
Probate abuse will continue as a legal industry hot spot. This industry dominates and it has no desire for a systemic change. Estate abuse is lucrative. With our aging population, it’s a growth industry and the trail of lawyers looking for lucrative revenue streams is never ending. Judges are typically former lawyers so understand their shared interest in the status quo – they along with the assortment of peripheral professionals also benefit from asset looting opportunities. Politicians also often come from the same pool.
Most people think they’ll never be targeted for such acts. Victims can be effective in presenting themselves as advocates, but efforts too often suggest action more geared toward solving individual problems than pursuit of serious strategic, sellable public policy alternatives. With this scenario, whose left to effectively champion this cause?
Probate industry arrogance has been demonstrated in the last weeks as Travis County Probate Judge Guy Herman is now off on a self-prescribed “sabbatical” after county commissioners accepted the 65-year-old judge’s resignation, a resignation offered so that he could take the remainder of the year off before starting his eighth term.
Meanwhile, Bexar County Probate Court Judge Tom Rickhoff is planning his own six-week vacation to Australia and New Zealand beginning in November and running through the end of the year. This absence corresponds to the time frame in which his counterpart in the county’s other probate court, Judge Polly Jackson Spencer wraps her 24-year tenure on the probate court.
The absences of these two is mentioned as an indicator of how probate court judges often answer to no one – including their constituents and the law. Needless to say, both men undoubtedly plan to return to their respective courts by January in time to, as in past years, vigorously represent their industry should the 84th Texas Legislature see bills threatening probate courts’ status quo.
An aging population, trying economic times, growing senses of entitlement and even Obamacare sow seeds for more abusive probate cases. Proper estate planning is important, but never believe it’s the mechanism to unequivocally protect you and your family, heirs and/or beneficiaries. Never believe the attorney who says all the right things might not some day turn the table.
This is no longer about what might happen to your grandmother – it’s about what can happen to you. It’s deplorable to think that your assets are “up for grabs” the moment you are dead or disabled or incapacitated – but it’s a reality in today’s world, a reality to keep top of mind this National Estate Planning Awareness Week.