Many of my clients wisely seek to avoid certain types of court — for example, family court, tax court, criminal court.
But the wisest detour you can choose is the one leading away from Probate court. That’s not because of the place itself. Rather, your visit only verifies a personal failure to properly consider how best to keep government out of your most personal choices and affairs.
Never in the history of humanity has government been a lasting friend to human freedom. If you believe that, somehow, Probate court gets a pass on that truism, remember the words of Benjamin Franklin: If you want to know the true character of a man, share an inheritance with him.
Or, as I like to paraphrase Ben: If you want to know the true character of a person, get in a fight with them over caring for an aged, demented parent; disposition of the body; or distribution of stuff to people who didn’t earn it.
So avoid Probate court through powers of attorney, wills and trusts. If you find yourself there any way, at least know the turf.
Probate Court: Widows, Orphans and . . .
Traditionally, Probate Court was known as the court for ‘widows and orphans‘ Truthfully, the complete, now-profoundly politically incorrect phrase is: ‘widows, orphans and idiots.’ Today, the widows and orphans are protected through ‘Decedent Estates‘ and the idiots (my apologies) are protected through guardianship (and are always welcomed in leadership posts for local political clubs, red and blue alike).
Probate court originates from the doctrine of Parens patriae . . . the notion that government is the default protector of people unable to protect themselves (including the unknown heirs to an estate).
Inheritance is decided in a Probate Court, as is Guardianship. Mental Health law (that is, Mental Health Commitment) is a sub-genre of Texas probate court jurisdiction.
Here’s an insightful quote about Probate Court, credited to Ben Franklin: “If you want to know the true character of a man, share an inheritance with him.”
Trust me . . . Ben intended to include the feminine (not just the masculine) with that sentiment
Estates or ‘Decedent Estates‘
When someone kicks the bucket, everything he or she once owned becomes part of an estate for living people to fuss over. If the estate is large enough, it must pass through the probate process, which is a legal process which formally resolves claims against the estate and distributes property to heirs named by a court or beneficiaries named in a valid will.
Sometimes, a ‘small estate affidavit’ (or maybe an Heirship Affidavit in a chain of title) does the same thing.
Depending on the circumstances, probate can be lengthy and expensive. If no will exists, probate declares the identity of the heirs who receive an inheritance. Sometimes, an heir is omitted from the declaration of heirship (a form of declaratory judgment), leading to a Bill of Review.
But even if a will exists, it may be contested, prolonging the probate process. Typically, people oppose a Will when the Decedent didn’t know what they were doing when the will was made or was subjected to unfair influence or undue pressure (‘duress‘) when it was made.
Decedent Estates concern matters involving declaration of heirship (typically when there is no Will) and either the ‘dependent‘ or ‘independent’ administration of the Estate of a dead person (‘Decedent‘).
A dependent administration requires on-going court supervision (the fiduciary is ‘dependent‘ on the court for instruction and approval). An independent administration requires limited on-going court supervision (the fiduciary acts ‘independent‘ of court oversight). As you can imagine, an independent administration of an estate is preferred if you’re interested in saving legal fees.
Dealing with these types of issues can be difficult. But Scott Boates is qualified to help with any Houston Estate, Houston estate contest, Houston probate litigation or Houston will contest you may be facing in Texas Probate Court.
Guardianship: Ward of the Court
When someone lacks the legal capacity to act on their own, another person or entity can establish guardianship to manage the incapacitated person’s financial or personal matters. Guardianship is most often used for disabled adults and elderly people who have ‘lost it‘ … or never had it to begin with (so to speak); or, children whose parents have deceased and inherit substantial property.
Establishing guardianship in Texas requires a court proceeding. Unless the incapacitated person is a child, it also requires a medical evaluation and a letter from a doctor who is currently treating the person in question.
Guardianships suck and I don’t like them (offensive to all rugged individualists). But I do have almost 30 year’s experience in dealing with them, beginning with my own grand parents in the early 1980’s. Would you want to be a ‘ward of the court’? Would you want your snotty little brother to be named Momma’s (or Grand Daddy’s) ‘guardian‘? Many of us reach that point. But it’s a status which consumes public resources, turns everyone into self-righteous holy rollers and devastates your own estate in the interest of protecting us . . . from ourselves.
Avoid guardianship at all cost within the bounds of law and personal ethics. Use powers of attorney, trusts and other means to keep Granny’s dirty laundry a private affair.
But if you get stuck in Houston Guardianship Litigation or in a Houston Guardianship Contest, call Scott Boates for an honest and experienced approach to the mess.
A trust is a legal entity established to hold assets for a certain amount of time, then pass them along to designated beneficiaries. A qualified attorney will help in valid trust disputes – trust litigation — when someone disagrees with the instructions in the trust or the actions of the trustee.