Texas Probate & Guardianship Blog

The Honorable Judge Russell Austin died Monday afternoon from complications following a massive stroke he suffered over the weekend.

Judge Austin presided over Probate Court Number One in Harris County, Texas. He rose to the bench in 1995 following 25 years of practicing Real Estate and Probate law in the Houston area.

Judge Austin also served as an adjunct professor at South Texas College of Law teaching Wills, Trust, and Estates.

Judge Austin received his BA from the University of Houston in 1968. He received his JD from the University of Houston in 1971. He became Board Certified in Real Estate Law in 1984.

Throughout his Judicial career he received many awards and honors, including Judge of the Year Award in 2006; Professor Excellence Awards in 2007, 2005, 2004, 2003, 2002, and 2001; Public Service Award in 2005, and a Special Faculty Contribution Award in 1990.

He was a highly respected member of the bar, an outstanding Judge, and a dear friend to all.

He will be greatly missed.

Probate Courts are somewhat of a unique concept in Texas in that these courts are specially designated to handle only one type of case.  Generally, the courts around the state of Texas are somewhat “general” in nature–meaning that most courts handle multiple, if not almost unlimited, types of cases.  For instance, a general civil court might handle personal injury cases, contract disputes, business litigation cases, etc.  In smaller counties, the general courts handle both civil and criminal cases.

In approximately 12 counties across Texas, the Legislature has designated special “Probate” Courts, which only handle Probate, Guardianship, and some Trust cases.  Inasmuch as probate, guardianship, and trust matters are all fairly inter-related, it makes sense that these special courts would handle all of these issues as the cases tend to overlap.

The creation of special courts like the Probate Courts is very limited in Texas.  In some counties, certain courts are designated as “criminal” courts or “family” courts, but in reality, those courts all have the ability to handle non-criminal or non-family issues (respectively).  The Probate Courts are the only Courts in Texas that are created to handle one limited area of law and, by statute, cannot handle any other type of cases.

The question you might be asking yourself: “Why is probate such a unique area of law that there are special courts created specifically to handle only probate cases?”

Most people who find themselves standing in a courtroom are there because they are involved in some kind of a conflict – a divorce, a lawsuit, a criminal proceeding, etc.  Many probate and guardianship cases, however, do not involve a conflict.  For instance, the family of a recently deceased loved-one may be before the Court for the purpose of probating a Will to finalize the estate matters following that loved-one’s death.  Likewise, the children of an elderly lady suffering from Alzheimer’s may be asking the Court to appoint a guardian for their mother so that they will have the ability to provide the best care possible for her.  These cases do not involve any kind of conflict, but they still require Court intervention and action.

Although some of the cases brought to the Probate Courts involve conflicts between family members or people claiming a right under a Will, the overwhelming majority of the work performed in the Probate Courts is “administrative.”  These Courts must review all of the documents required by law to be filed in a Probate or Guardianship case (i.e. the Inventory of Assets, Annual Accountings, notices to heirs, etc.) to ensure that all of the various steps that must be completed in such cases have actually been accomplished.  The necessity to review all of these documents distinguishes the Probate Courts from other Courts because virtually no other Court in Texas is charged with the responsibility of verifying the accuracy of documents filed in their Courts.

Because of the administrative nature of the Probate Courts, many of the Probate judges around Texas take somewhat of a “customer service” approach to the operation of their Courts.  Realizing that most people come to the Probate Court only in times of personal or family sadness following the death or incapacity of a loved one, most Probate judges strive to ease the probate/guardianship process as much as possible to make the otherwise difficult time as easy and friendly as possible.

Given the nature of the work that goes on in the Probate Courts, it seems appropriate that these courts be operated with a view towards serving the public.  In all reality, very few people in society want to hire a lawyer and go to Court for any reason.  In the difficult times following the death of a friend or family member, the general public should be able to expect that our Probate Courts will be there to assist them in making the probate process as easy and user-friendly as possible.  Anything less should be unacceptable.

Okay, when last we left, you found yourself sitting in an appropriate Mental Health Facility, and you have just been admitted to temporary custody on the application of a person who believed you were suffering from a “mental illness”. You have no idea what to do, and you have no idea what your rights are in relation to your stay. That’s where I come in.

Now, first things first, you need to understand the reason for your stay. The purpose of an emergency detention is to determine if you are suffering from a mental illness and if as a result of the mental illness, you present a substantial risk of harm to yourself or others.

So you’re probably now asking yourself, what exactly constitutes a “mental illness”. The term “Mental Illness” as used in the Texas Mental Health Code is defined as an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that: (i) substantially impairs a person’s thought, perception of reality, emotional process, or judgment or (ii) grossly impairs behavior as demonstrated by recent disturbed behavior. Tex. Health & Safety Code § 571.003(14).

The first thing that will happen as you reach the facility is that you will be temporarily accepted to the facility for a preliminary examination. Therefore, you need to know your rights. And to that end you should know that if you are apprehended you have the following rights:

1. The Right to be advised of the location of detention, the reasons for detention, and the fact that the detention could result in a longer period of involuntary commitment.

2. The Right to a reasonable opportunity to communicate with and retain an attorney.

3. The Right to be advised that communications with a mental health professional may be used in proceedings for further detention.

This is important because you may be detained in custody for not longer than 24 hours after the time you are presented to the facility unless a written order for further detention is obtained. Once that 24 hours is up, and the physician has given you a preliminary examination, you may be admitted to the facility for emergency detention only if the physician makes a written statement that states that you are mentally ill; that you are evidencing a substantial risk of serious harm to yourself or others; that the described risk of harm is imminent unless you are immediately restrained; and that emergency detention is the least restrictive means by which the necessary restraint may be accomplished.

The written statement must also include a description of the nature of the person’s mental illness; a specific description of the risk of harm the person evidences that may be demonstrated either by the person’s behavior or by evidence of severe emotional distress and deterioration in the person’s mental condition to the extent that the person cannot remain at liberty; and the specific detailed information from which the physician formed the opinion.

If all goes well, the doctor will deem you to not be suffering from mental illness, and he will arrange for you to be released. If he does this, arrangements shall be made to transport you to the location of your apprehension; your residence; or another suitable location. The County will also foot the bill for this transportation.

At the end of the twenty-four hour detention period, you must be released unless you are detained under an Order for Protective Custody.

Next time we will find out just what happens under such an Order.

As you no doubt have realized, it appears that our friend Brit has some pretty serious mental health issues. What you probably haven’t realized is what that has to do with a Probate Blog. Well, that’s where I come in.

Actually, the situation Britney currently finds herself in directly relates to probate. Or at least it would if she resided in Harris County. This is because in Harris County, the Probate Courts are in charge of the so-called “Mental Health Docket”. Probate Courts Three and Four each have specific dockets that deal solely with involuntary commitment hearings, the subject of which, Britney currently finds herself. I have served as a court appoited attorney on the Mental Health Docket for four years now. So, I thought I would use this opportunity to talk a little bit about the procedures involved in a mental health commitment and give just a general background about Harris County’s Mental Health Department.

To start, I will discuss an involuntary commitment hearing. This is the kind of commitment that Britney’s mother used to get Britney admitted to the hospital for treatment. The first step in the process is usually the filing of what is called an Application for Emergency Detention. This is the document that applicants (such as Britney’s mom) fill out if they feel that someone they know is in need of immediate psychiatric care. The guidelines to such an application can be found in the Health and Safety Code, §§ 573.011. That section states that an adult may file a written application for the emergency detention of another person if the applicant has reason to believe and does believe that the person evidences mental illness; that the applicant has reason to believe and does believe that the person evidences a substantial risk of serious harm to himself or others; that the applicant has reason to believe and does believe that the risk of harm is imminent unless the person is immediately restrained; that the applicant’s beliefs are derived from specific recent behavior, overt acts, attempts, or threats; a detailed description of the specific behavior, acts, attempts, or threats. The applicant must also give a detailed description of the applicant’s relationship to the person whose detention is sought.

After filling out the Application, the applicant must then present the application personally to a judge or magistrate. The judge or magistrate shall examine the application and may interview the applicant. The magistrate will then review the application and determine if there reasonable cause to believe that the person evidences mental illness; the person evidences a substantial risk of serious harm to himself or others; the risk of harm is imminent unless the person is immediately restrained; and the necessary restraint cannot be accomplished without emergency detention.

Now in case you are thinking this is a swell way to temporarily dispose of your rowdy teenagers next weekend, the requirements for a substantial risk of serious harm are laid out in the next section. Such risk of harm may be demonstrated by the person’s behavior; or evidence of severe emotional distress and deterioration in the person’s mental condition to the extent that the person cannot remain at liberty.

If the magistrate is satisfied that such risk exists he will issue to an on-duty peace officer a warrant for the person’s immediate apprehension. The person apprehended will then be transported for a preliminary examination to the nearest appropriate inpatient mental health facility; or a mental health facility deemed suitable by the local mental health authority, if an appropriate inpatient mental health facility is not available.

And that is where Britney finds herself now. In an appropriate inpatient mental health facility. However, least any of you be disappointed should such a fate befall upon you, unlike Ms. Spears first class trip to Cedars-Sinai, Harris County does not provide 3 block long police motorcades on your way to the hospital. Unfortunately for us plebs, we merely get a luxurious ride in the back of a police cruiser. What can I say, it pays to be famous.

Next time I will delve into what happens upon arrival at such Mental Health facility and the rights and procedures afforded to all those under such Mental Health Warrants.

You may have seen the recent stories about the Probate Courts in Harris County. To describe them as unflattering would be an understatement. The Houston Chronicle is all abuzz over Probate abuse, exorbitant fees, and a good-ole boy network in the Probate system. Now, to be honest, some of the questions were legitimate. When a non-lawyer, non-cpa is allowed to charge 1.38 million dollars and then ask off the case while it sits unresolved, you have to ask some serious questions. However, what the articles are not telling you, and what the Chronicle will never understand is that, ultimately, this new found interest in probate is going to cost you more while giving you less.

In recent articles the Chronicle has insinuated that Probate Judges appoint small circles of friends to most cases and therefore rack up fees for their buddies, while hopefully recouping the difference in campaign contributions. Quite simply, this is ridiculous.

First of all, let’s dispense with the campaign issues right away. I don’t know if you remember the last time you voted, but I’d be willing to bet, that even if you do, you don’t remember voting for Probate Judges. The reason for this is that the Probate Judges are the absolute dead last category for elected officials in Texas. That means that after you voted for Governor, and Lieutenant Governor, and Railroad Commissioner, and the state senate, if you are one of the few that actually fills out the whole ballot, you still have about four pages of offices to scroll through before you get to the probate judges. And lets face it, there are very few, if any, that actually know the candidates past page three, and even less who pay attention to every race by the time they reach the end of the ballot. This is why, for the past decade plus, if you are a Probate Judge in Harris County, and you are running on a Republican ticket, you are an automatic victor.

There have been millions spent in past elections, attempting to inform the public about the qualifications (or lack thereof) of certain judges in these races, and the most they could manage was a few percentage points difference in a 65-35 landslide. The fact is, incumbent Probate Judges are shoe-ins, and no amount of campaign spending is needed to continue that trend. Until we see a shift in ideology at the polls, the little “R” next to their names ensure a landslide victory.

So, with that out of the way we can now focus on the real issue. The question remains, is there a “good old boys” network down at the probate court? This question is really two fold. One, do judges really only appoint a small group of lawyers to a large number of cases. And two, if so, is that a bad thing? The answer is yes, and no. And unfortunately for you, that trend is disappearing quickly.

Despite what you hear in the papers and on the news, the fact that the Court appoints a select group of individuals to preside over their probate cases, is actually a very good thing. Think about this, if you have a complex case in probate court, and it requires that the court appoint a lawyer to handle certain matters during the proceeding, who do you want the Court to appoint in such a situation? Do you want a lawyer with a long track record of excellence in that courtroom, whom the judge is familiar with and trusts, and who knows exactly what they are doing and can do it efficiently? Or do you want a lawyer the Judge doesn’t know, who probably hasn’t even been to probate court in the past year, if ever, and who has basically no understanding of the probate process and who will have to teach himself the ropes at your expense every step of the way? Pretty simple choice if you ask me.

You see, the truth is there are very few probate-only lawyers in Houston. The number of firms who specialize in only handling probate matters can be counted on two hands. And the average probate firm has less than five lawyers total. When you consider that Houston alone has thousands of law firms, some with lawyers numbering in the hundreds, the true picture of just how small the probate community becomes clear.

And it is precisely because of this fact that stories such as the Chronicles latest attacks are so dangerous to you and your potential probate case. You see, when Judges get ancy about who to appoint, they are forced to look outside the realm of probate attorneys. And while many lawyers believe that there is nothing to doing a probate case, when a person is not familiar with the process, he or she can rack up completely unnecessary fees in no time at all, costing the average applicant thousands of dollars without anyone realizing the difference.

What would normally take a probate attorney only a few hours to complete, now takes an unexperienced lawyer five to six hours to complete. Worse still, most probate judges are likely to appoint inexperienced lawyers to simple probate matters because their hourly rate lends itself to the simple work of an uncontested probate matter. However, when these inexperienced lawyers attempt to handle such matters, fees go up because it now takes that person longer to do the same job that a more experienced lawyer was doing in half the time. This costs you money in the long run, and ultimately gives you a much lower quality product in the end.

So please remember that the fact that a Probate Judge appoints a select few to handle matters is not automatically a bad thing.

When lawyers start suing other lawyers over whether or not other lawyers are any good, you have to think that the legal profession might be taking itself just a bit too seriously. On June 5th, Avvo, Inc. launched a website (www.avvo.com) which the company touts is “designed to give consumers information and guidance to choose the right attorney.” It took a Seattle law firm nine days to sue the young company. Twenty-five page Class Action Petitions don’t exactly draft themselves overnight.

The site, according to Avvo’s CEO, Mark Britton (one of several lawyers on the company’s board of directors), provides guidance for legal consumers looking to pick the right attorney for the job. The company, as part of its effort to provide this guidance, has developed a proprietary rating system that generates a lawyer’s numerical score on a scale of 1 (“Extreme Caution”) to 10 (“Superb.”) Though the company keeps the exact method of determining this score a secret, users are informed that the number represents some amalgam of experience, peer endorsements, recognized achievements and client feedback. Consumers using the site to shop for legal help are encouraged to use the lawyer’s rating as a factor in their decision to retain a particular attorney.

Picking the right attorney is a tough enough task for anyone. Even if they know a little something about the legal ins and outs of their case, most clients are apprehensive from the very first day. The stress of their legal issue has probably already taken a heavy toll on them, and they’re about to hand the ball off to a total stranger on the faith that he or she is every bit the expert we claim to be. Reliable information or a quality referral on your prospective attorney is a premium commodity.

That said, the goal of Avvo may be as noble as they come. This goal appears to be the only noble part of Avvo’s business model, however. The initial data that Avvo collects in order to compile an attorney’s legal ranking is gathered from public records — straight from the Texas Bar Association in the case of lone star attorneys.

The Bar Association’s website includes, for every attorney licensed in Texas, updated contact information, bar admissions, listed specializations and historical disciplinary actions — all verified by the attorney. Attorneys can update or enhance their profile with a photograph and web address. Other than that, the Bar Association’s profiles are largely sterile, and do nothing to rank Texas lawyers by using some mystical system. As a source, the Bar Association is a great place for a company like Avvo to draw information. The straight facts don’t lie.

Avvo strays off course when it tries to distill and quantify factors that do anything but lend themselves to becoming numerical. Basically, every attorney seems to begin with the same middle-of-the-road average score of 5 out of 10. Your score is then raised or lowered by fractions depending upon your years of experience (because lawyers are like wine), authenticated (somehow) awards and achievements, peer endorsements (high-fives from the partners) and client reviews (high-fives from your poker buddies).

As if the math isn’t hazy enough, Avvo purports to list and rate hundreds of thousands of lawyers — whether they want to be included or not. An attorney can “claim” his or her profile to enhance it with the hope of raising the rating. All it takes is a credit card that the company never uses and never charges. The potential for misinformation simply outweighs the benefit that Avvo is selling to the public. Abuse from self-serving attorneys, vindication by unsatisfied clients — you can read the Petition yourself (www.hbsslaw.com) and decide how quickly the whole thing could go wrong.

In my opinion, legal consumers deserve every opportunity to learn more about a potential attorney before they hire them. Numbers, espcially arbitrary ones, don’t make an attorney any better, or more capable of representing his client, than the suit he wears. Whether or not this class action impacts the way that Avvo does business aside, let’s hope that the vast majority of the public finds some truth in this statement.

The Texas Supreme Court has added another opinion in the debate of what happens when you forget to change your will after a divorce. Needless to say the best advice is to immediately pay a visit to your friendly neighborhood probate attorney and have him draw you up a new will, but I digress.

In re Estate of Nash involved a fight between the living heirs of Marvin Nash, and Marvin Nash’s ex-stepdaughter.

Marvin Nash executed a will while he was married to Vicki Nash and designated Vicki as his primary benficiary. However, he included a suvivor clause which stated that Vicki Nash had to survive Marvin by 30 days to inherit. In the event that his wife did not survive him by 30 days, the estate was left to Vicki’s daughter Shelley Tedder, Marvin’s step-daughter, as contingent beneficiary.

Marvin and Vicki Nash divorced on July 8, 2002. Nash later died, without revising his Will, on April 29, 2004. Both Vicki Nash and Shelley Tedder survived Marvin Nash.

After Marvin’s death, his heirs filed an application to administer his estate as though he had no valid will.

Conversly, Shelley Tedder filed an application to probate Marvin’s will.
Ms. Tedder relied on a provision of the Probate Code that states that “if after making a will, the testator is divorced… all provisions in the will in favor of the testator’s former spouse… must be read as if the former spouse failed to survive the testator…” Ms. Tedder argued that if you read the will as though Vicki predeceased Marvin, as the statute seems to suggest, she stood to take as the contingent benficiary.

Unfortunately for Ms. Tedder, the Supreme Court disagrees. The Court stated that Probate Code section 69 requires that only those provisions in a will that favor a former spouse be read as if she predeceased the testator. Since the contingent bequest to Ms. Tedder was not such a provision, section 69 does not govern the bequest.

Accordingly, Tedder did not take under the will, and Nash’s estate passed according to the laws of descent and distribution.

I recently found myself discussing a local hospital’s approach to DNR status with a fellow Houston lawyer. He informed me that this hospital (which will go unnamed but let’s just say it’s one of the big three) does not subscribe to the Texas Health and Safety Code, and instead answers only to their in-house ethics committee and the edicts this board releases.

One such edict was the subject of our discussion and involved the fact that said hospital automatically institutes a DNR provision for any patient they feel necessitates such measures. Therefore, regardless of whether the patient wants a DNR order, or voluntarily signs a DNR, the Hospital, answering only to their ethics board, determines who gets to live and who gets to die.

Therefore, I felt it necessary to once again familiarize everyone with your rights under the Texas Advanced Directives Act of 1999.

If a treatment team has determined that a treatment your have requested is medically futile, you have the right to request an ethics consultation.

Under the law, the following process must occur if the treatment team and institution wish to take full advantage of the provisions of the law creating a legal safe harbor for them.

These provisions are as follows:

1. The family must be given written information concerning hospital policy on the ethics consultation process.

2. The family must be given 48 hours’ notice and be invited to participate in the ethics consultation process.

3. The ethics consultation process must provide a written report to the family of the findings of the ethics review process.

4. If the ethics consultation process fails to resolve the dispute, the hospital, working with the family, must try to arrange transfer to another provider physician and institution who are willing to give the treatment requested by the family and refused by the current treatment team.

5. If after 10 days, no such provider can be found, the hospital and physician may unilaterally withhold or withdraw the therapy that has been determined to be futile.

6. The party who disagrees may appeal to the relevant state court and ask the judge to grant an extension of time before treatment is withdrawn. This extension is to be granted only if the judge determines that there is a reasonable likelihood of finding a willing provider of the disputed treatment if more time is granted.

7. If either the family does not seek an extension or the judge fails to grant one, futile treatment may be unilaterally withdrawn by the treatment team with immunity from civil or criminal prosecution.

Remember, when a hospital is telling you that you have to give up, you have a right to say “NO”. With hospitals rushing to establish their own ethics committees to conveniently side step Texas code provisions, it is now more important than ever to know your rights.

The biggest news item of recent days has been the death of Anna Nicole Smith. As many remember, she was engaged in a messy probate battle of the Will of her late husband J. Howard Marshall. That battled raged in the Harris County probate court for nearly 6 months, and it definitely left its mark on the Houston probate process. Now, in the wake of Smith’s death, questions have arisen about the contents of her Will, the circumstances surround her death, where she will be buried, etc.

Because Smith won her battle before the U.S. Supreme Court in her late husband’s estate, she may be entitled to receive $500 million or more from his estate. Now that Smith has died, the beneficiaries under her Will stand to inherit all of that money. Of course, reports have raged lately as to the identity of the father of Anna Nicole Smith’s only living child. Given the large amount of money at stake, the potential fathers are all fighting as hard as possible to be recognized as the father so that they not only get control of the child, but also get control of Anna Nicole’s fortune.

The Medical Examiner and the Courts in Florida have taken great pains to make sure that enough DNA samples are preserved to enable them to perform the appropriate DNA testing to determine the child’s father. This is a battle that will rage long and hard, but honestly, this is a fight that should be very easy to resolve. In a very short, one-day test, the doctors will be able to determine with 99.9% accuracy who the father was. More importantly, the doctors will also be able to rule out all of the potential fathers who actually are not the father.

It will be interesting to see how this case unfolds in the media.