Monday, October 20, 2008

Corrupt Probate Culture Thwarts Safeguards

by Estate of Denial.Com

A friend recently e-mailed asking that, in light of the problems which can occur with regard to estates and trusts, how should someone plan in terms of the mechanism for distributing property upon death? It would be great if there was a definitive answer, but unfortunately, there’s not. Here’s how we responded:

I don’t know. My husband and I still have property in a trust and don’t have any real plans to change. First off, I don’t know what you would change to and it could be just another instrument to be abused. The Estate of Denial advocacy work we’re doing is important because it’s not about defective instruments per se, it’s about the execution of the instruments being perverted so as to ignore the property owner’s intentions in lieu of benefiting disingenuous people who weren’t legitimately included in a particular asset distribution plan.

Sorry to not have a better answer, but the problem isn’t particularly with the wills, trusts, whatever — it lies with the corrupt legal culture surrounding the probate industry that makes the most of an industry (including some judges) that largely protects its own.

Many lawyers will say these cases don’t really exist, or at least don’t occur that often, but a lot of these situations never even make it into a courtroom. An attorney told me recently that in 40+ years of practicing law, he has never seen so many CLE courses targeting lawyers in trouble for some type of misconduct - often dealing with estates. I’ve heard that complaints coming before state bar association disciplinary boards increasingly deal with estates — but remember, this is a problem that doesn’t exist.

As long as the culture stays corrupt and unaccountable, no document will provide protection.

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