Texas Lawyer | By Angela Morris
Some probate attorneys want to help the effort if lawmakers pass a bill to require the Texas Supreme Court to create standard probate and wills forms for low-income Texans.
Probate lawyer Craig Hopper told members of the Senate State Affairs Committee on March 9 that he already identified a potential panel of people who might collaborate to create "good forms" if the legislature passes Senate Bill 512.
Hopper, a shareholder in Austin's Hopper Mikeska who chairs a legislative committee of the State Bar of Texas Real Estate, Probate and Trust Law Section, wrote in an email that he testified in his individual capacity.
A supportive response to the idea of probate forms is different from the response when the Supreme Court created pro se divorce forms. Family law attorneys fought the effort, fearing that pro se litigants would harm their interests using the forms.
The legislature did not instruct the high court to create the divorce forms. The Supreme Court initiated that project on its own.
There's a different approach this time.
SB 512 author Sen. Judith Zaffirini, D-Laredo, told senators that she has worked on her bill with the Supreme Court, which supports the proposal.
The bill would call on the court to create forms and instructions for people to create their own wills and to represent themselves in certain kinds of probate proceedings. Under the bill, the high court would have to generate forms it "considers appropriate" including: a small-estate affidavit form; forms to create wills for married and unmarried people, both with and without children; and a form to probate a will under a method called muniment of title. The fast and affordable method—available in very limited circumstances—can transfer property to beneficiaries without the need for an administrator or executor.
Zaffirini told committee members that she planned to offer a substitute bill to instruct the Supreme Court to create forms only for "simple" wills. For example, people wouldn't be able to use the forms to set up complex trusts, she said.
Justice Eva Guzman, the Supreme Court's liaison to the Texas Access to Justice Commission and the Texas Access to Justice Foundation, told the committee that it's best if people have lawyers, but 5.6 million Texans qualify for legal aid and their ability to hire lawyers is "nonexistent."
"They do not have access to the courthouse," said Guzman.
Currently, low-income Texans download forms from Craigslist or other websites, but those forms are sometimes inaccurate or incorrect. If the high court created forms, judges wouldn't have to look at them to ensure that they complied with the law.
Guzman said that the forms might encourage more lawyers to handle probate matters pro bono for low-income Texans. For example, the forms might help a corporate attorney to step outside of his normal practice area and help someone draft a will.
"These forms are one part of a solution. They are not the end-all, be-all, but they are an important step in helping close the gap in access to justice," Guzman said.
Trish McAllister, executive director of the Texas Access to Justice Commission, said that a person is most likely to interact with a court for a family matter such as a divorce or when someone dies. There's a high need for probate forms: It's the No. 3 request for legal aid in Texas, said McAllister.
Lucille Wood, a professor at the University of Texas School of Law, said that a recent survey of 1,300 families found that 90 percent of them did not have wills. Some are homeowners who are over 65 years old, and they're part of large families. Wood said in that situation, it causes a lot of damage when someone dies without a will.
No one testified against SB 512. The committee left the bill pending.