Friday, November 6, 2009
Involuntary Redistribution of Assets (IRA)
Surrogate's Court is, by definition, a court of record that has jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents. This means that the court has the power to determine what the wishes were of a person who has died, and cannot speak for him/herself.
This blog is dedicated to exposing judges who use their "absolute" immunity to prosecution as a shield to commit crimes, and you will see that most of the stories I post on this blog will be about New York City, the single most corrupt city in the nation. The information below comes from a tireless advocate for justice, Lou Ann Anderson, whose blog "Estate of Denial" has information that can be understood as universal.
As the website "Estate of Denial" shows, we all must re-think the power given to a single individual judge to alter Wills and steal property from the relatives and friends of dead people. If anyone has a story of greed and corruption at the hands of a Surrogate Court Judge, please contact me at firstname.lastname@example.org.
“The act of reaching into one’s own pockets to help a fellow man in need is praiseworthy and laudable. Reaching into someone else’s pocket is despicable and worthy of condemnation.”
-Walter E. Williams, professor of economics and regular guest host on The Rush Limbaugh Show, Compassion Versus Reality, June 6, 2007
Estate of Denial: Involuntary Redistribution of Assets (IRA)
An industry exists in which lawyers, accountants and other unethical participants - sometimes with complicity from probate and other courts - can separate any of us from our property when certain (not that unusual) circumstances occur. These situations can also be orchestrated at the behest of disgruntled family members or wannabe heirs. Whether through the misuse or abuse of wills, trusts, guardianships or other probate-related scenarios, Involuntary Redistribution of Assets (IRA) actions can and do occur as a means of calculatedly diverting assets away from intended heirs/beneficiaries.
The drive to acquire wealth dates back to beginning of man. Having the most skins or the largest cave equated to power and status. The same still applies today, but morality associated with the accumulation of wealth has seriously degraded. By adopting an “end justifies the means” attitude, too many people these days are minimally hesitant to engage in less-than-ethical activities as a way to bolster their financial position. Concepts like “earning one’s keep” and “paying your own way” are rapidly becoming obsolete.
With an entitlement mentality as a guiding force, if a way - especially with cover from the law – can be found to transfer financial holdings from someone to yourself, that’s a victory akin to a winning lotto ticket or a Las Vegas jackpot! An added incentive exists if the process, hopefully limited to cursory review, can appear clean and innocuous.
As people get older or incapacitated, the potential of being targeted for IRA increases. Sadly, it can be a known, trusted family member or friend or it can be a stranger who works their way into a person’s life gaining their confidence along the way. In either case, the consequences can be life-altering for a person and their loved ones.
To understand how our society has come to the point where people can (and do) position themselves so as to find ways in which they can acquire other people’s money, thought should be given to the evolution of how resources change hands.
The Direct Approach
Once upon a time, the involuntary separation of property from a rightful owner required some type of physical act. Be it knocking the person over the head and taking their money, utilizing a weapon in a threatening way to provoke the relinquishing of said assets or simply breaking into another’s domicile in order to remove the property from its rightful custody, some not-to-be-missed overt act generally took place as a crime was committed and one lost access to their resources.
Behind the Scenes: Clean Hands Doing Dirty Deeds
Since the 1939 introduction of the term “white-collar crime” by sociologist Edwin Sutherland, the definition of such crime has been vigorously debated. The Federal Bureau of Investigation defines white-collar crime as “. . . those illegal acts which are characterized by deceit, concealment, or violation of trust and which are not dependent upon the application or threat of physical force or violence. Individuals and organizations commit these acts to obtain money, property, or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.” (USDOJ, 1989, p. 3)
Regardless of how one defines white-collar crime, we are all affected by such activities. These crimes seem on the upswing as technological advances and legitimized corruption have joined forces with social isolation and advanced moral degradation. Media forums, regardless of their ideological persuasions, have no shortage of stories reflecting a wide array of white-collar criminal activities. We’ve all heard the stories of non-violent, “clean” sounding tales from high-visibility corporate scandals like Enron to individuals like Judith Leekin, the Florida woman charged with fraudulently adopting 11 children and forcing them to exist in horrid conditions while she lived off reportedly more than $1 million of taxpayer funds meant to finance the children’s care.
As reporting opportunities constantly increase, the stigma associated with such stories seems in a decline. As long as people aren’t overtly violent, are more actions being viewed as “victimless”? Is this leading to a general desensitization to dishonest behavior? Might deceit and deception be someday viewed as a new “norm”? What could this mean for our society? Bernie Madoff aroused public anger, but many lower level Madoff-type shysters operate with near impunity. Top government officials broke laws in not paying federal income tax, but that matters little as well.
Maybe Not Illegal, But Does That Mean It’s “Right”?
In recent years, Involuntary Redistribution of Assets (IRA) activity has taken on a new look as lawyers and other parties not constrained by the boundaries of honesty and truthfulness use the legal system to influence situations in their favor. Laws may not be technically broken, but ethics violations and breaches of trust often leave people with the same feeling and the same net financial result as experiencing that physical hit over the head prior to assets being taken.
Stealing $250,000 from a bank illicits a far different law enforcement response than stealing the same amount from an estate. Estate disputes are occasionally, but not often treated as criminal matters. They usually are relegated to the civil court system. Many people pulled into IRA battles are simply ill-prepared for the fight. Not everyone has first-hand knowledge of the legal or court systems, especially those whose lives center around being productive, law-abiding citizens. If your life experience hasn’t included things like divorce, child custody disputes, bankruptcy, DWI/DUI charges or exposure to other criminal activity, chances are your first-hand contact with a courtroom may be limited to an occasional stint of jury duty. With that, you may not realize what a “racket” the court system can be and the amount of good money that can be thrown away on legal fees and court costs with the disposition of even a simple case.
Ironically, the money sometimes targeted for IRA exists because of a responsible lifestyle in which people avoided legal entanglements yet the avoidance of such experiences later creates a real disadvantage in dealing with IRA practitioners familiar with the jurisprudential system either as members of the legal profession or through personal life circumstances.
The Scoop on Not Becoming a “Dupe”
America’s senior citizens are particularly at risk of being duped out of resources that a lifetime was spent accumulating or resources that represent the hard work and values of a multi-generational family effort. People with any means need to understand that our world contains predators seeking to separate you from your wealth – by Involuntary Redistribution of Assets (IRA), if necessary. Remember also that money, like many other things, is relative. What may seem modest or respectable to you could be a veritable fortune to someone feeling desperate or someone whose poor life choices has left them unacquainted with having financial resources.
Our aging population is a magnet for all types of scams and dishonest enterprises. In his book, People Get Screwed All the Time, attorney Robert Massi provides insight as to the creativity and boldness of IRA practitioners operating amongst us. Many of the situations addressed by Mr. Massi illustrate how legal maneuvering and basic business practices can be used to separate unsuspecting people from their money or prized assets.
Individuals must beware the threats posed to their property and their heirs’/beneficiaries’ rights of inheritance. IRA can happen anywhere, but areas with large retirement populations can be especially appealing to financial predators. Some communities may have to take a stand in support of their residents’ property rights and in opposition to IRA property poachers. As public officials and prominent community members have been known to participate in these illicit activities, doing the right thing may take some courage.
With many people’s ever-increasing sense of entitlement, a troubled economy and the transfer of wealth that is getting ready to occur in the next 20 or so years, Involuntary Redistribution of Assets cases will skyrocket. Next time you are at grocery store, health club, playing bridge or even in church, take a look to your left, take a look to your right. The field of people willing to participate in IRA activities is varied and growing. Never doubt that some of America’s best cons are taking place in our nicest neighborhoods.
Guarding Against Guardian Abuse
Involuntary Redistribution of Assets (IRA) actions via misuse of probate instruments or abuse of probate venues are becoming more common occurrences. Wills, trusts and powers of attorney generally involve property, but guardianships pose an even more potentially intrusive threat as they assign control of an individual’s life and/or property to another person - maybe a complete stranger.
Within an estate plan, a person might designate a specific individual to act as guardian in the event of incapacitation, but when the courts become involved, the growing professional guardianship industry is sometimes viewed as a more desirable alternative. Indeed there are cases in which no family member is suited to assume this role thus necessitating an outside appointment. A trend, however, is emerging in which unwarranted, inappropriately-assigned or overly intrusive guardianships are being exposed and the public needs to understand how guardianships can allow the functional hijacking of a person’s freedom and property. A disabled or incapacitated person of any age can be subjected to a questionable guardianship, but the elderly are an especially vulnerable population segment.
According to The Texas Probate Web Site, guardianships are defined as:
a court-supervised administration for a minor or for an incapacitated person. A person — called the guardian — is appointed by a court to care for the person and/or property of the minor or incapacitated person — called the ward. In some other states, guardianships are called conservatorships, but in Texas they are called guardianships.
The site provides these definitions of a “minor” and an “incapacitated person”:
A minor is a person younger than 18 years who has never been married or who has not had his or her disabilities of minority removed by judicial action. A minor is considered an incapacitated person. An adult who, because of physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs is considered an incapacitated person. The definition of incapacitated person also includes a person who must have a guardian appointed to receive funds due the person from any governmental source.
Two types of guardians/guardianships exist: a guardian of the person and a guardian of the estate. The guardian of the person takes care of a ward’s physical well-being while care of a ward’s property may be assigned to a guardian of the estate. A ward may be assigned only one type of guardian, but in other cases, both types of guardians are assigned with sometimes the two guardianship roles being filled by one person.
Guardianships are sometimes needed and certainly not all guardians are dishonest or exploitive of their charges, but this capacity is often misunderstood. The term guardianship sounds as though it might describe a nurturing, security-enhancing relationship, but the practical reality is that the guardian’s responsibility is to ensure “the best interest of the ward” and input or approval of any action by the ward or the ward’s family is not required. Preservation of the ward’s assets is also not a benchmark further setting the stage for potential conflict between a guardian and ward’s family. The general public should take additional note as it’s not uncommon for guardians to “spend down” a ward’s assets leaving taxpayers the responsibility of funding care for a formerly self-sufficient person.
Courts or third parties becoming involved in a person’s affairs via the appointment of a guardian or conservator is a way in which Involuntary Redistribution of Assets (IRA) occurs. Estate looting or questionable enrichment can be accomplished through excessive or unaccountable billing, the retention of other “professionals” to provide services allegedly related to estate management (lawyers, accountants, etc.) or even the use of “friendly” vendors - especially those involved with the liquidation of property.
Families who suspect wrongdoing must self-fund any legal recourse while a guardian can use estate resources to defend against challenges of his/her position. It’s not uncommon for judges to be deferential toward court-appointed personnel.
If desired, guardians’ capacity to block family contact can work as an intimidation tool to deter complaints or serve as a means of masking improprieties. While court-appointed guardians are a potential source of probate abuse, family members serving as guardians have been known to commit many of these same actions so they should never be viewed as immune from taking similar advantage of their status to perpetrate IRA actions.
These things happen. They happen every day. Don’t think it can’t happen to you. And again, not all guardians are by any means dishonest or abusive, but those that are operate under a system that could not be better designed for untoward acts.
IRA targets - including those affected by abusive guardianships - and their families become trapped in a realm of frustration never previously known to exist. The legal industry defends questionably acting attorneys, elected officials look for “feel good” legislative initiatives and judges are too often impervious to the pleas of IRA targets being “legally” robbed of their property, freedom and sometimes both. Family members come to recognize the emotional and financial futility in trying to fight a legal system which is supposed to protect the people it’s destroying.
People from the legal and social service industries might try to characterize guardianships as a status in which compassionate individuals “take care” of your loved ones and their property, but beware - sometimes what’s taken is the person’s freedom and everything else they have.
How the Goods are Gotten When the Will Gets in the Way
The looting of estate assets, also known as Involuntary Redistribution of Assets (IRA), can occur through the use of various probate instruments - wills, trusts, guardianships, powers of attorney - and with the actual acts configured in different ways. Guardianships or powers of attorney can provide for estate looting while a person is alive, but asset diversion can be perpetrated posthumously via wills or trusts. Whether these acts are instigated by greedy lawyers, disgruntled family members or wannabe heirs (or often a combination), the sad reality is that death doesn’t necessarily bring the closure one might expect. Death, even with the most meticulous of estate plans, in no way ensures the honoring of a decedent’s wishes or heirs’ avoidance of IRA.
In December 2006, Austin American-Statesman reporter Tony Plohetski wrote a special report entitled Breach of Trust. In this article, Plohetski detailed how “Texas estate laws make stealing from the dead a relatively easy crime.” These are nothing more than cases of postmortem IRA. He described not only the estate theft activities of Austin attorney Terry Erwin Stork, but Plohetski also pointed out how Texas probate laws do little to ensure that people’s belongings reach those designated in the decedent’s will. The article also depicted a loose approach to oversight on the part of some probate judges.
The Statesman report prompted law makers to introduce several reform-oriented bills during the 80th Texas Legislative session. Effective September 1, 2007, S.B. 593, as per the Texas Senate Research Center, requires the personal representative of a decedent’s estate, within a certain time period of an order admitting a will to probate, to give notice to each beneficiary named in the will whose identity is known or, through reasonable diligence, can be ascertained, and to file an affidavit with the court listing the beneficiaries notified. The bill also sets out what the notice must contain which is a good thing as estate administrators previously having been on the “honor system” didn’t seem to workout so well. This legislation can seem (and might be) a helpful “first step,” but as IRA practitioners routinely ignore laws and bypass normal business/legal courtesies, more than an assumption of compliance is needed.
Stork ultimately plead guilty to three counts of felony theft and in September 2008, was sentenced to 15 years in jail. Attempts to reconcile what’s due to each estate continue, but heirs will likely recover few of the assets left to them.
It is important to note the inaccuracy of believing these type situations only occur with high dollar estates. The three estates from which Stork stole had a combined value of less than $1 million. Another misconception to dispel is the absolute protection provided by “proper estate planning. The estates outlined in the Austin American-Statesman article belonged to people who took the proper steps to ensure the orderly distribution of their assets. They, however, fell victim to IRA due to a betrayal by the attorney they trusted for assistance.
The legal industry won’t tell you this, but an estate executor can basically do anything they want with an estate. Realistically, judicial oversight is minimal - most judges believe what attorneys tell them and perform little or no independent follow-up. Heirs believing something is amiss must mount their own challenge. The Stork case was unique in that it was prosecuted as a criminal case, but most heirs pursuing “justice” in an estate dispute are relegated to the civil court system which is a pay-to-play venue open only to those willing and capable of expending significant sums of money for an eye-opening, but rarely confidence-inspiring experience. Steal $250,000 from a bank, people get excited. Steal the same from an estate, it’s hard to get law enforcement or any other officials to care. These points are never lost on today’s grave robbers or other property poachers while an unsuspecting heir has no idea the web of deceit and gamesmanship into which they are entering with a civil estate dispute case.
Dishonest estate administrators sometimes use under-handed tactics to draw legitimate heirs or beneficiaries into litigation of which their participation is self-funded while the administrator/executor can use the dispute as justification for additional billing against the estate of his/her time along with legal or other applicable professional services.
The threat of legal action can also be used to pressure heirs into forfeiting or sharing rightful bequests rather than risk being the target of a contrived dispute. It’s been called an inheritance litigation tax, but extortion when defined as “iIllegal use of one’s official position or powers to obtain property, funds, or patronage” also sounds familiar. Either spend time and money fighting or get out - it’s that simple, it’s that ugly.
As people’s entitlement mentality grows, probate has become an excellent venue for weaponization of the legal system by grave robbers, property poachers, asset looters and walker stalkers looking to divert assets in a manner contrary to the stated intentions of honest, hard-working Americans. Losing the ability to determine the final distribution of one’s assets is a tragedy for Americans individually, as families and for us as a country in that the intergenerational transfer of assets has historically helped to strengthen our social and economic fabric.
Reform in this area will be difficult as the legal industry is powerful. However, the stories of estate abuse and probate corruption seem to increase almost weekly and as they do, a generally unsuspecting public is starting to awaken to the growing threat to their property rights and to their heirs’ rights of inheritance.
“Trust” – Should You?
Involuntary Redistribution of Assets (IRA) actions in which probate instruments or probate venues are used to loot assets of the dead, disabled or incapacitated are a growing threat to the property rights of hard-working Americans and their heirs’ or beneficiaries’ rights of inheritance. Living trusts are regularly touted by attorneys as a flexible estate planning document and a means by which to minimize legal fees, but they are also another instrument through which IRA can occur.
As with the guardianships and wills, honest management and execution as per the stated wishes of the trust founder is a critical factor. Without a commitment to integrity, today’s legal system and moral environment offer the opportunity for a high degree of IRA gamesmanship. Within this context, the estate arrangements, final wishes or distribution of assets can undergo a complete redistribution that is in no way reflective of the founder’s plan.
A trust is generally a private legal instrument that receives no routine court oversight. Trust theory touts language that outlines the trustee’s fiduciary duties and responsibilities to the beneficiaries. While sounding good on paper, the validity of trust management is realistically commensurate to the trustee’s level of integrity and desire for honest dealings with the beneficiaries.
If a trustee is viewed as having breached his/her responsibilities, beneficiaries can initiate a legal proceeding. As with contested guardianships and wills, the trustee will use trust resources to fund their side of any legal proceedings. The beneficiaries, on the other hand, must personally absorb their legal expenses. In some cases, a trustee can be held personally liable for his/her actions, but you run into the same dilemma as discussed with other estate cases in which how far does it make sense to go in pursuing legal action that is financially and emotionally exhaustive? And the IRA counterparts are ready to wait you out while simultaneously using your assets to compensate themselves for time spent on efforts contrary to your best interests.
Leaving the unethical trustee to their own devices can facilitate the depletion of financial assets. A court proceeding, however, can also provide trustees a guise under which to diminish trust assets. Increased trust management fees as well as legal fees can be assessed throughout the course of a legal dispute. It’s quite conceivable that beneficiaries could “win” in a court of law only to find that the trustee, as a matter of performing his/her “duties” with relation to the resolved legal battle, significantly reduced or even depleted the trust assets. The “losers” (trustee and their lawyers) end up with the trust assets. The “winners” (beneficiaries) are left with a stack of legal bills. Some victory!
Estates or trusts of any amount, even $500,000 or less, can be attractive to IRA practitioners. As any prolonged litigation (and count on your IRA adversaries for prolonged litigation) can easily run into six-figure expenditures for each side, IRA victims often recognize the absence of cost effectiveness in going to court. Much can be spent with little or nothing gained. Some attorneys may advise that certain estate amounts are not enough to fight over so the IRA family should “let it go” and save themselves additional grief and expense. Involuntary Redistribution of Assets practitioners know how to target and maximize these opportunities.
Betrayal can take on many different forms as illustrated by the New York Surrogate Court overseeing the estate of Leona Helmsley, once known as the “Queen of Mean.” With her August 2007 death, Helmsley’s final directive was to leave her estate, in the form of the Leona M. and Harry B. Helmsley Charitable Trust with an estimated value of $3 - 8 billion, “to the provision of care for dogs” along with another catch-all category granting broader discretion to the trustees.
The first reversal of Helmsley’s wishes came in June 2008. Of Helmsley’s four grandchildren, two were included in her will as well as made executors (along with others) of her estate while two were excluded from any inheritance. An estate contest from the disinherited grandchildren prompted estate executors to settle the dispute quickly by “amending the will.”
Executors changing a will to include otherwise omitted heirs is a blatant disregard of the decedent’s wishes, but per news reports, that’s what happened with the move approved by the New York Attorney General as well as a judge. How does this discounting of the clear intentions of a decedent not now set a dangerous precedent that could jeopardize the rights of inheritance of the deceased and other potential heirs?
Then, there’s Trouble, Helmsley’s Maltese. At the same time as the will “amendment,” the $12 million set aside for the care of Trouble was reduced to $2 million. Upon Trouble’s death, any unused money was designated to be transferred into the Helmsley charitable trust. Why once again, did a legal precedent have to be established in which a decedent’s expressed wishes were disregarded? In due time, the same outcome would have been achieved yet with a course that included honoring Helmsley’s wishes.
In February 2009, Judge Troy K. Webber of Surrogate’s Court in Manhattan ruled that the Helmsley trustees may distribute the money as they see fit. In a ruling he wrote “The court finds that the trustees may apply trust funds for such charitable purposes and in such amounts as they may, in their sole discretion, determine.” Perhaps the trustees and the court were disinclined to worry about honoring Helmsley’s wishes as her beneficiaries - the dogs - presumably can’t hire attorneys to fight such a ruling. Perhaps unexpected was “man’s best friend” actually having friends and, in this case, they have surfaced as three of the country’s most prominent animal welfare organizations.
The Humane Society of the United States (HSUS), the American Society for the Prevention of Cruelty to Animals (ASPCA) and Maddie’s Fund are asking a Manhattan court to force Helmsley trustees to honor Helmsley’s expressed intentions. According to the groups, “less than $100,000 of the initial $136 million Helmsley grants have gone to dog welfare.”
Trusts can be a helpful estate planning tool, but in the wrong hands - and those hands are out there - administration of these instruments can be executed so as to completely circumvent intentions of the trust founder. The legal industry will advocate the use of a “qualified estate planner” to help prepare a plan for the final distribution of your assets.
Few in the industry, however, will talk candidly about the problems created when that planning takes an unpredictable turn at the hands of that “qualified” professional. And as the Helmsley case well demonstrates, today’s courts also seem willing to redistribute assets opposed to upholding the wishes of a decedent.
Leona Helmsley used her resources to create a trust that, upon her death, was to distribute her wealth as per specific instructions. Brooke Astor and J. Howard Marshall II engaged in similar estate planning activities yet their estates (and beneficiaries) have also been harmed due to Involuntary Redistribution of Assets (IRA) actions. If the estates of high profile people with significant holdings can be so boldly challenged in a manner contrary to their clear intentions, what chance do people of more modest means and their heirs have in standing up to the same type financial assault occurring in courthouses across this country?
You spend a lifetime accumulating assets. For many of us, we’ve worked hard and achieved prosperity. We now look forward to passing on to our children or designated loved ones the fruits of our labor which they can in turn use productively in their lives and share similarly with their heirs. Predators driven by self-interest are present in all walks of life, but as we get older and/or incapacitated, the risk for exploitation becomes greater. As wealth is relative, no one is immune from being targeted for Involuntary Redistribution of Assets (IRA).
IRA is a process in which unscrupulous individuals use the age and/or incapacitation of a person to gain control of their personal assets and “redistribute” them in a manner contrary to what the person intended. The redistribution can happen during the person’s lifetime through a guardianship or power of attorney or posthumously via a will or trust. Family members, friends or even “trusted” associates like a lawyer or caregiver are potential IRA practitioners. With legal and financial maneuvering, IRA can sometimes be accomplished within technical limits of the law.
Unfortunately, these cases often occur within frameworks that relegate them to being treated as civil rather than criminal matters. With a minimal threat of legal consequences, estate theft becomes a more appealing endeavor. Law enforcement is tepid to become involved often discounting such cases as “family disputes.” Politicians and governmental officials often find cover by feigning ignorance of estate abuse, probate corruption or specific IRA perpetrators with such actions costing targeted Americans their freedom, property or both. The collateral damage to their families can also be a life changing experience.
Historically, court battles are the traditional “remedy” for IRA actions. And how convenient as the legal industry, complete with lawyers, judges and lobbyists, also helped create this problem - maybe not by accident. Win or lose, the massive financial expense, as well as emotional toll, often yields the only true “winners” in these cases to be the participating lawyers.
Transparency is an avenue to addressing the egregious process that allows the looting of assets via probate venues or probate instruments. Meaningful reform, however, will not be an easy task. The legal industry is powerful with few insiders willing to stand up against their own. Secrecy is a great friend to the IRA practitioner and their protectors.
However, as more of these cases occur and affect people at levels throughout the economic spectrum, “shining light on the dark side of estate management” will become the important first step toward shutting down IRA practitioners, exposing their allies and returning integrity to the arena of estate management and the probate process.
Article printed from Estate of Denial: http://www.estateofdenial.com
“Grave” Problems in Texas
Looting Assets of the Dead
By Lou Ann Anderson
Grave robbers. Tomb raiders. Cronies who plunder and rape estates. These are characterizations used to describe experiences with the Texas probate system. Guardianships, trusts and wills are vehicles commonly used to perpetrate Involuntary Redistribution of Assets (IRA) actions. Trusts and wills can lead to modern day grave robbing, guardianships can allow looting of an individual’s assets during their lifetime.
It can happen outside a legal venue or with full oversight of the courts. As people get older or incapacitated, the potential for IRA targeting increases. IRA practitioners can be a known, trusted family member or friend or a stranger who works their way into a person’s life gaining their confidence along the way. It can involve lawyers, accountants, “professional” administrators or guardians and others.
People knowledgeable of the Texas probate business tell how making a living off the extraction of estate assets is an organized industry. How tragic to realize a lifetime spent accumulating assets and then clearly designating their final distribution can position one’s rightful heirs as targets for Involuntary Redistribution of Assets practitioners. Incapacitation or death should not signal “open season” on assets. It should not mean that when a person can no longer speak for him/herself, their wishes should be disregarded with the fruits of their labor awarded to parties unconstrained by ethics and adept at manipulating our legal system.
“Proper estate planning” is not an IRA inoculation. Those commissioned to document and execute final wishes sometimes become key figures in asset looting. An estate with limited resources provides no immunity. Wealth is relative. Modest estates can be appealing as IRA practitioners value parties who can be intimidated or convinced the prospect of a legal battle is cost prohibitive.
Prior to the 80th Texas Legislature, the Texas Senate Committee on Jurisprudence held an October 11, 2006, public hearing to solicit testimony regarding potential probate code reforms. The day’s focus was to hear recommendations regarding the jurisdiction of statutory county courts and ways to improve oversight of court-appointed fiduciaries in trust and estate administration cases.
Guy Herman, Texas’ Presiding Statutory Probate Court Judge and Travis County Probate Judge, along with other probate court judges and attorneys testified their system is well functioning, not in need of major reform and characterized litigation losers as predictable sources of unflattering stories regarding probate experiences. The committee also heard hours of citizen testimony telling abuses of power by probate court judges and court-appointed personnel. A common sentiment expressed was how the Texas probate system is a cottage industry that steals from the dead, steals from estates and it happens because the average person fails to realize the money to be made.
During testimony, Russell Verney, former Texas director of Judicial Watch, suggested the legislature convene a special investigative body to look into “not just the four or five that came up today, but the hundreds of cases that would like to tell you about what happened to them.” Judge Mike Wood of Harris County Probate Court No. 2 discussed how “people with money” have recourse including writing books or going to the media while he as a judge cannot do so. In describing an experience with a Montgomery County probate case, Jon Sisco testified that without proper funds for a court battle, “the only thing the working man – the public’s got – is to get it (their case) exposed.” During the hearing, Senator Mario Gallegos, Jr. commented that as the abuses being described were related to court cases, one has to wonder how many similar situations are occurring with estates not involved in litigation.
The Austin American Statesman and The Houston Chronicle are providing increased coverage to Involuntary Redistribution of Assets situations. Several witnesses at the Jurisprudence Committee hearing credited KTRK, Houston’s Channel 13, as instrumental in creating awareness for their cases. The internet also has a mounting presence of IRA victims sharing experiences and strategies. A web site, www.estateofdenial.com, was created by a Texas woman and her teenage daughter in response to both being targeted by IRA practitioners. While their story remains the web site’s inspiration, their blog provides a forum for IRA discussions and promotes awareness to hopefully influence public policy regarding this important property rights issue.
Involuntary Redistribution of Assets cases often stem from a guardianship, trust or will. Appointment of a guardian to oversee an individual’s affairs is a common IRA starting point. Per the National Association to Stop Guardian Abuse, “In seeking to navigate the guardianship system, families too often experience frustrations in attempts to find assistance and to obtain justice in a seemingly unjust legal system. Legislative statutes are totally ineffective when judges and law enforcement agencies ignore them. Government organizations as well as many attorneys are inexperienced in this fairly new area of law. Many lawyers are also unable or unwilling to take on seemingly futile cases in which the client has little or no money to pay fees while the guardian is draining the same family’s assets to pay for their own legal representation.”
Our legal system is “pay to play” with advantage going to those who subsidize the court system. IRA participants can incite a court case, lose and still “win” by collecting attorney and administrative/management fees “legitimately” generated during judicial proceedings. Family members learn it’s often useless to exhaust themselves emotionally and financially while trying to fight a legal system which is supposed to protect the people it’s destroying.
Attorneys tout living trusts as flexible estate planning documents and a means by which to minimize legal fees. If commitment to executing the trust founder’s stated wishes is absent, today’s legal system and moral environment offer opportunity for IRA “gamesmanship.” In this context, estate arrangements, final wishes or asset bequests can undergo a complete redistribution in no way reflective of the founder’s plan.
A trust is generally a private legal instrument receiving no court oversight. Trust “theory” uses language that outlines the trustee’s fiduciary responsibilities to the beneficiaries. Trust management validity is commensurate to the trustee’s integrity and desire for honest interaction. If a trustee is viewed as having breached his/her responsibilities, beneficiaries can initiate a legal proceeding. Again, trustee expenses are paid from the trust, beneficiaries pay their own. The financial and emotional toll can be brutal. Throughout extended legal action, IRA practitioners can also use trust assets to compensate themselves for time spent on efforts arguably contrary to the beneficiaries’ interests.
Estates or trusts of any amount can be attractive to IRA practitioners. As prolonged litigation easily runs into six-figure expenditures for each side, IRA targets often recognize the absence of cost effectiveness in going to court. Much can be spent with little or nothing gained. Involuntary Redistribution of Assets practitioners target and maximize these opportunities.
Death doesn’t necessarily bring closure nor does it ensure honoring a decedent’s wishes. In a December 2006 special report entitled “Breach of Trust,” Austin American-Statesman reporter Tony Plohetski wrote how “Texas estate laws make stealing from the dead a relatively easy crime.” Citing postmortem IRA cases, he described not only the alleged estate theft activities of Austin attorney Terry Erwin Stork, but also detailed how Texas probate laws do little to ensure people’s belongings reach those designated in a decedent’s will. Stork surrendered his law license in May 2007, but it is unknown if heirs of estates handled by Stork will recover any assets left to them.
S.B. 593 was passed during the 80th Texas Legislative session. Per the Texas Senate Research Center, it requires the personal representative of a decedent's estate, within a certain time period of an order admitting a will to probate, to give notice to each beneficiary named in the will whose identity is known or, through reasonable diligence, can be ascertained, and to file an affidavit with the court listing the beneficiaries notified. The bill also sets out what the notice must contain. Despite this helpful step, IRA practitioners routinely ignore laws and bypass normal business/professional courtesies so any measure of progress remains to be seen.
Estates outlined in the AAS article belonged to people who took proper steps to ensure the orderly distribution of their assets. They fell victim to IRA due to apparent betrayal by a trusted attorney and, when engaged, additional betrayal by the legal system theoretically designed to serve as a safeguard.
Involuntary Redistribution of Assets (IRA), a process in which unscrupulous individuals use death or disability to gain control of assets for “redistribution” in a manner contrary to the property owners’ intentions, can happen during the person’s lifetime or posthumously. As more cases occur and affect people throughout the economic spectrum, “shining light on the dark side of estate management” is an important move toward serious and impactful public dialogue that will hopefully lead to policy changes designed to shut down IRA practitioners and return integrity to the arena of estate management and the probate process.
Lou Ann Anderson is producer of The Lynn Woolley Show, a Texas-based talk radio program. She also is an advocate working to create awareness regarding the Texas probate system and its surrounding culture. Lou Ann may be contacted at email@example.com.
Estate looting 101: how the goods are gotten when the will gets in the way
Long Island Examiner
Lou Ann Anderson
The looting of estate assets, also known as Involuntary Redistribution of Assets (IRA), can occur through the use of various probate instruments - wills, trusts, guardianships, powers of attorney - and with the actual acts configured in different ways. Guardianships or powers of attorney can provide for estate looting while a person is alive, but asset diversion can be perpetrated posthumously via wills or trusts. Whether these acts are instigated by greedy lawyers, disgruntled family members or wannabe heirs (or often a combination), the sad reality is that death doesn't necessarily bring the closure one might expect. Death, even with the most meticulous of estate plans, in no way ensures the honoring of a decedent's wishes or heirs' avoidance of IRA.
In December 2006, Austin American-Statesman reporter Tony Plohetski wrote a special report entitled Breach of Trust. In this article, Plohetski detailed how "Texas estate laws make stealing from the dead a relatively easy crime." These are nothing more than cases of postmortem IRA. He described not only the estate theft activities of Austin attorney Terry Erwin Stork, but Plohetski also pointed out how Texas probate laws do little to ensure that people's belongings reach those designated in the decedent's will. The article also depicted a loose approach to oversight on the part of some probate judges.
Is Texas' population growth a "stimulus" for estate looting, probate abuse? (Part 2)
July 13, 7:06 PMBell County Legal News ExaminerLou Ann Anderson
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As Texas is home to four of the nation's 10 fastest-growing cities, a larger population will provide opportunity for increased instances of estate and other probate abuses currently threatening the personal and property rights of Texans and their heirs. If someone robs a bank, that's front-page news. Steal from an estate, few people will know, and sadly, even less will care.
Involuntary Redistribution of Assets (IRA) perpetrators use probate venues and/or legal instruments like wills, trusts, guardianships or powers of attorney to "divert" assets in a manner contrary to the asset owner's intentions. That such acts can happen with little or no attention adds to their appeal. Residents of a thriving state - especially one with a
large retiree population - need to understand the growing threat to their property rights and, in the case of guardianships, their personal liberty as well.
On occasion an estate abuse case will surface and receive media attention. From 2006 to 2008, The Austin American-Statesman's Tony Plohetski reported on the investigation and subsequent prosecution of former Austin attorney Terry Stork.
In a 2006 article entitled Fighting the touchy battle of estate theft, Plohetski writes:
Texas law calls stealing from a dead person's estate "misapplication of fiduciary property." Bexar County Probate Judge Tom Rickhoff calls it plain old theft.
Rickhoff, a former federal prosecutor who took office in 2001, has been one of the state's most aggressive probate judges when he suspects estate theft. He says he has referred dozens of potential cases to prosecutors.
"The culture here was that all the civil lawyers thought every dispute about where money went is a civil matter that should be resolved in a lawsuit," Rickhoff said. "It was clear to me that if you take a diamond ring and give it to someone (else), you stole the diamond ring.
"It is without authority," he said. "You just stole someone else's property."
But Rickhoff appears to be one of the few people in the probate system willing to speak up when he suspects estate theft.
People accused of the crime are seldom investigated by law enforcement, an Austin American-Statesman review of Texas probate system has found. Indictments and arrests are rarer still, according to probate lawyers, judges and prosecutors from across Texas.
And it was Rickhoff who alerted Travis County officials as to Stork's questionable activities involving a Bexar County estate that ultimately was tied in with two estates in Travis County's jurisdiction. All three estates belonged to elderly women who had entrusted Stork to manage/distribute their assets upon their respective deaths.
In 2008, Stork was charged and plead guilty to three counts of felony theft. Life in prison was possible on two of the charges and a jail term of up to 20 years on the third. In addition to co-mingling funds from the three estates, Stork diverted cash assets to his personal accounts and used real and personal property from the estates for the benefit of himself and other family members.
A September 2008 sentencing hearing involved 14 witnesses who testified to decades of unethical behavior by Stork. From a history of legal disciplinary actions to physical altercations with school crossing guards and city of Austin courthouse security personnel, Stork was known as combative and an individual who routinely operated outside social and professional norms. Despite having lost his law license, Stork was even continuing to practice law in the weeks prior to his sentencing as per testimony from Stork's own brother, Michael.
On September 22, 2008, Stork was sentenced to 15 years in prison. EstateofDenial.com was in attendance and provided a detailed description of the proceeding. Deference toward the demise of Terry Stork produced surreal moments when Judge Bob Perkins and other attorneys in attendance shared apparent distress at having to take substantive action against one of their own.
The only positive note of this case is that in response to the media attention, the 2007 Texas Legislature passed a bill requiring executors to send written notice to heirs of estates. In a more honest time, this likely was considered an automatic step. Sadly, today that's not the case.
Here is what all Texans should understand about the looming threat of probate or estate abuse: Terry Stork betrayed the three women who entrusted him to properly distribute their lifelong accumulation of assets. These women were responsible and engaged in "proper estate planning" with, they thought, a "qualified professional." All indications are that Stork had a long history of questionable ethics and conduct yet the self-regulating legal industry had no problem allowing his activities to continue for decades - and on that September afternoon when faced with having to assess real consequences for bad behavior, the atmosphere was apologetic. How does this bode well for other hard-working Texans?
Terry Stork stole far more than money. With a belief in taxpayer protections and property rights, here's perspective that could have been delivered:
Laura Ellis, Allene Naumann, Clara Petri. These are the names that we want to not be forgotten. Some heirs connected to these ladies have been through a legal hell which should never have occurred. They have lost time in their lives and financial resources which will never be recovered. Their families have been negatively affected by this — all due to the dishonesty of one man.
Mrs. Ellis, Mrs. Naumann, Mrs. Petri counted on Terry Stork to honor their final wishes. This man betrayed them and his impact will be felt for generations as Terry Stork stole much more than money. Rights of inheritance - an American tradition, an American right - provide future opportunity. To steal this from another person and their heirs is a theft of future individual productivity and societal prosperity. The assets squandered by Terry Stork could have provided an enhanced education, seed money for a new business, capital toward a home - all things that feed our economy promoting capitalistic productivity and/or financial independence.
When people have the capacity for a lifelong accumulation of assets, what a heinous, evil crime for someone to steal and squander financial resources while simultaneously denying said assets to rightful heirs who hopefully would continue the legacy of fiduciary responsibility, fiscal appreciation and asset maximization — all attributes absolutely in absentia with regard to Terry Erwin Stork!
These type activities routinely occur. The next installment of this series will shift to the southern part of our state. Meanwhile, Texans beware.
For more info:
Is Texas' population growth a "stimulus" for estate looting, probate abuse? (Part 1)
More on Terry Stork estate looting case (September 23, 2008)
Austin's latest outlaw (July 6, 2008)
Longtime attorney pleads guilty to estate thefts (June 28, 2008)
Austin lawyer gives up license (May 5, 2007)
Overhaul of probate law proposed (December 21, 2006)
Shouldn't your final wishes matter (February 1, 2008)
Sheffield given 10 years probation (January 31, 2008)
Executor charged with stealing $200,000; former funeral director expected to plead guilty (January 3, 2008)
From Betsy Combier:
I'm sure we all remember the removal of Judge Feinberg from the bench.
Better to Know the Judge
As an adult home deteriorated, a veteran jurist and a lawyer shared cocktails and dinner
Tom Robbins, Village Voice, published: August 02, 2005
Another report of insider trading in the Brooklyn courts arrived in late July from the state's Commission on Judicial Conduct. This one produced more sighs than fury. Years after editorial pages had spent their wrath condemning Brooklyn's judicial politics as a school for scandal, here was another censure of another veteran judge for failing to reveal his ties to yet an other politically wired attorney practicing before him. Even the names were predictable.
photo: Willie Davis/Veras
Machine challenger: Judge Margarita L Torres campaigns for Surrogate's Court
Machine challenger: Judge Margarita L Torres campaigns for Surrogate's Court
# Landlord Loot: Miller's Crossing
by Tom Robbins
Supreme Court Justice Richard Huttner, a clubhouse regular, had never told other lawyers in a case he adjudicated about his friendship with defense counsel Ravi Batra, former law partner of assemblyman and Democratic county leader Clarence Norman Jr. The panel reported that Huttner neglected to tell plaintiffs that while he was hearing their case he and his wife were having cocktails with Batra and his spouse, or that the judge had also attended a wed ding anniversary and a memorial service with the Batra family. Or that he and the attorney had shared "drinks, lunch, and dinner together on numerous occasions." Or that he thought so highly of Batra he had awarded the lawyer 11 separate fiduciary appointments.
What to do?
Huttner, 70 years old, caught a break. On the proviso that he will permanently retire on December 31, the panel "reluctantly" let him off with censure. Case closed. The report made for a four-inch wire service story in the Times; it never made it past the borough section in the Daily News.
But not since Judge Victor Barron, another clubhouse hack, was caught demanding $115,000 to fix the case of a maimed three-month-old baby has a story penetrated so near to the rotten heart of Brooklyn's judicial politics.
Batra's appearance before Huttner was on behalf of a wretchedly deteriorated adult home run by Norman's father, Re verend Clarence Norman Sr., pastor of one of Brooklyn's largest churches. In Baisden et al. v. Pacific House Residence for Adults, lawyers for the home's residents, most of them the formerly homeless with varying degrees of mental problems, were seeking to block Norman Sr.'s efforts to sell the building and evict them. At the time, Reverend Norman was trying, with Batra's help, to stay one step ahead of state regulators who were being forced to act on years of complaints of callous care and grievous conditions at the home.
When I visited Pacific House in the summer of 2000 while the case was before Huttner, residents were aimlessly roaming the streets ("A Ministry of Neglect," June 28–July 4, 2000). Several told me they were terrified about what would befall them. The most cogent understood exactly what was going on. One woman, Clara Taylor, had formed a residents' council, which had sought out legal services attorneys. Taylor had personally confronted Norman Sr. about the situation. The reverend had pled poverty. While the home collected $60,000 a month from the residents' disability checks, he said he was hobbled by a poor cash flow. Additional government grants had been denied after inspectors found rampant vermin, unsanitary bathrooms, and poor care.
Taylor had also cornered the reverend's son when the assemblyman attended a street fair near the home. She had pointed to a urine-soaked resident, sitting mumbling and untended on a nearby stoop. "I asked him if he would help. He said, 'I'm glad you're concerned,' and promised to speak to his father," Taylor told me.
But when I got Assemblyman Norman on the phone that summer he said that his only involvement was to ask his partner Batra to represent his father. Batra got results. Before Huttner, the lawyer was able to win his client sufficient breathing room to negotiate a sale of his property—minus its troubled residents, who were dispersed elsewhere in the city—to another politically tied organization. It was "a graceful exit," Batra told me then.
Later this month, after long delays, Assemblyman Norman is finally due to go to trial on the first of four indictments brought against him by Brooklyn District Attorney Charles Hynes. The county leader stands accused of double billing for his gas receipts, failing to disclose a $2,700 in-kind contribution from a lobbyist, misfiling a $5,000 campaign check, and compelling judicial candidates to use favored vendors.
Several of the charges appear shaky. But on any moral scale, they are far outweighed by the outrage of Pacific House and the casual use of Brooklyn's Democratic judicial-political complex to defend it. Yet no law enforcement office looked to see if there were any penal code violations there. It was considered business as usual; a crassly cynical business perhaps, but not criminal. Meanwhile, conveniently for both Hynes and Norman, the first jury's verdict isn't likely to be heard until after the September 13th primary, thus sparing one or the other a major embarrassment.
That Tuesday, Hynes faces his first competitive race for re-election since he won office in 1989, with three challengers seeking his job. It is an important day for Norman as well. He's hoping his candidate for D.A., an undistinguished, clubhouse-bred state senator from east Brooklyn named John Sampson, can ride a tide of African American votes to unseat Hynes. Another important goal for the embattled leader is to try to hold on to the Surrogate's Court judgeship, the single most lucrative judicial post in the borough. The position had been held by another Norman candidate, Judge Michael Feinberg, who bizarrely won the open seat in 1996 on a reform platform. Feinberg even won the Times' endorsement that year, telling its editorial board he would have a panel "screen appointments and recommend changes in how the place was run."
Of course he did no such thing. He immediately appointed a longtime Norman ally, East Flatbush Democratic district leader Marietta Small, as public administrator, a job that calls for competence and sensitivity in the handling of estates of the deceased. Small brought neither to the job. Two separate audits have chastised Small, who still holds her $91,000-a-year post, with bungling multiple cases and losing track of assets.
For the profitable job of counsel to the public administrator, Feinberg held no interviews, instead selecting his friend and neighbor Louis Rosenthal, whose closest experience in the surrogate business was his father's service as public administrator in the early 1960s. Rosenthal promptly began to collect an 8 percent fee for every estate that crossed his desk, 2 percent more than counsels in other boroughs. He did so without filing the required affidavits describing what he'd done to earn the money. This was not a problem for Feinberg, however, who rubber-stamped more than $8 million in payments to his friend.
Such pillaging probably would have rolled merrily along had not two Daily News reporters, Nancie Katz and Larry Cohler-Esses, exposed the scheme in May 2002. In the wake of their stories, the Attorney General's Office and the Commission on Judicial Conduct each opened investigations. Rosenthal was forced out. In late June, the state Court of Appeals upheld the judicial conduct panel's ruling that Feinberg should also be removed. The judge had admitted to the commission that he had only "skimmed" the rules of office, and somehow missed the one about required affidavits. The panel found him "incredible, evasive, and unreliable."
Norman's replacement candidate for the office is a protégé, Supreme Court Justice Diana Johnson, who attends Clarence Norman Sr.'s First Baptist Church in Crown Heights. He has a backup candidate, Judge Lawrence Knipel, who has gotten good marks on the bench but whose independence has been questioned since his wife is a district leader and Norman loyalist.
The third candidate is civil court judge Margarita López Torres, who has been tilting her lance at Norman's machine ever since he refused to back her for re-election in 2002. The reason? López Torres refused to accept a political appointee as her law clerk ("The Judge Who Said No," July 31–August 6, 2002).
In the surrogate's race, López Torres has pledged to do all the things Feinberg claimed he would nine years ago, and more. "I am going to structure the court in a way it serves the people," she said under a hot noon sun at a City Hall press conference last month. "The integrity of this court has been challenged," she said. "I will change that."
PANEL RAPS JUDGE FOR KEEPING MUM ON ATT'Y PAL
BY NANCIE L. KATZ DAILY NEWS STAFF WRITER
Wednesday, July 27th 2005, 7:05AM
FOR THE SECOND time in four years, the state's judicial watchdog censured a Brooklyn judge - this time demanding that he retire because he presided over a case involving a close friend without letting the other side know.
Supreme Court Justice Richard Huttner is the second jurist to get in trouble with the state Commission on Judicial Conduct for having a personal relationship with politically connected lawyer Ravi Batra - and not telling the opposing attorneys about it.
Huttner has had a "close social relationship with" Batra since the mid-1990s, the commission said, and awarded the lawyer 11 lucrative appointments between 1996-1999.
"They have been to each other's homes, and [he] has attended various of Mr. Batra's family events," the commission wrote. "They have had . . . drinks, lunch and dinner on numerous occasions."
Nonetheless, since June 2000, while presiding over a case involving Batra, Huttner did not tell the attorney general's office any of that.
"Even if they did not discuss the merits of Mr. Batra's case during their out-of-court meetings, an appearance of impropriety would be inevitable," the commission said.
But the commission did not charge that Huttner favored Batra in the case, which was settled.
The commission demanded the 70-year-old jurist step down at the end of the year, citing its 2001 censure against him for using his judicial position to improperly sway a judge to rule in his co-op's favor in a dispute with a restaurant. Huttner otherwise could have sought state approval to stay on until the age of 76.
"The retirement was an essential element of the commission's agreeing" not to pursue disciplinary charges against him, said its administrator, Robert Tembeckjian.
Huttner and his attorney did not return calls.
Batra declined to address the specifics of the commission's ruling.
"Every lawyer and former judge who is now a lawyer is now required to put on the record any relationship that exists with any party or lawyer or the court on the record," said Batra. "This will serve to . . . to enhance public confidence."