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Texas Access To Justice Commission Update

Why Greater and More Affordable Access to Probate and Probate Court is Needed
By:  Harry M. Reasoner, Chair, Texas Access to Justice Commission

Most people access our civil judicial system in either family law matters or due to the death or incapacity of a loved one. Unfortunately, poor Texans face two large problems when a loved one dies. Most often the deceased do not have wills. Even if they do, the heirs aren’t allowed to represent themselves in court.

As lawyers, we know how important it is to have a will and to probate it timely to ensure that any property is transferred after our death. We know that improper transfer of title can wreak havoc on a beneficiary’s ability to sell or encumber the property, use it as collateral on a loan, or qualify for property tax exemptions for which they would be otherwise eligible, such as the disability exemption or the over-65 exemption. We have wills. 

The poor, however, do not—even those that own their homes. Many assume that informally giving their property to someone means that they legally own it. Others simply cannot afford to hire an attorney to draft a will. Consequently, they are the most likely to have issues arising from improper transfer of title.

Even when a will exists, the poor often do not timely probate it. Many do not know that a will must be probated within four years, and when they do, they lack the resources to hire a lawyer to probate it.  Normally, people who cannot afford a lawyer have the option of trying to represent themselves in court.  However, in probate court, you cannot represent yourself except in very limited circumstances. 

The lack of access to wills and to probate is especially devastating for low-income families who have managed to purchase a home. Legal aid regularly sees people who have been living in the family home for years without realizing that they do not legally own it until they are faced with eviction. At that point, the family faces losing the only asset of any real value that they have and the only home they have known.

I am happy to report that the Real Estate, Probate and Trust Law Section of the State Bar of Texas and the Texas Access to Justice Commission are working collaboratively on several forms that will make it easier for low-income people to access wills and probate in Texas. 

The Texas Legislature is also interested in helping the poor access wills and probate. The House Judiciary and Civil Jurisprudence Committee recently asked the Commission to report on the impact of probate on low-income Texans and to pose some solutions to those problems. Our report can be viewed in full here.