Estate Litigation Legal Questions

I have found that the Department of Motor Vehicles tends to be helpful and flexible when it comes to title transfer of vehicles in small estates. I suppose they do not want unregistered, uninsured, and unlicensed vehicles on the road. Take the death certificate, will, and perhaps an agreement signed by all of the heirs at law to DMV. If they cannot help you, then Florida has several types of procedures for smaller estates.  Your scenario may even qualify for disposition of personal property without administration, depending on the value of the assets. Good luck... Read More

As a general matter, you have no right to rely on an oral promise by a decedent regarding the distribution of her estate. In the absence of a will, the assets of a deceased person are distributed in accordance with the laws of intestacy, not in accordance with the wishes of a particular child. The law of wills -- which requires a signed writing executed with particular formality -- was adopted precisely to avoid such disputes over incorrectly documented gifts. An attorney can assist you in seeking to be appointed as a personal representative, which will enable your discovery of estate assets.... Read More

Ms. Aquino: Yes, if there is a recording that has been preserved, it can be used against you, if it has some probative value, i.e., if it is relevant. You have not described the civil lawsuit.  Since I do not know what is pending or what is contained on the tape, I cannot tell you whether it would be relevant.  To me it sounds way too old and remote to have any relevance to anything.  When that much time has passed and the character of the account has changed and new documents (a Will) have been executed, I struggle to see how it could ever be relevant.  If it is relevant, it would be very weak evidence of anything, other than an argument that happened 15 years earlier. I hope I have answered your question(s). Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

Mr. Gardner: My first question is why hasn't the personal representative of your uncle's estate made distribution some four years post-death.  The answer could be that the Estate needed the car to pay for debts of your uncle's Estate in which case the bequest of the car to your father would abate (which means, it would disappear).  Even if the Estate was solvent (such that your the bequest of the car to your father would not abate), the determination about whether the car was needed to pay off debts of your uncle's Estate within the year prior to your dad's death.  It may be that because your father's Estate has no executor or personal representative that the personal representative of your uncle's Estate has no one to transfer title to the car to and is waiting for information about who either represents the Estate or owns it.  If your father had a Will, then probate it and an executor will be appointed and/or the beneficiary/beneficiaries of his Estate will be determined, so the executor or personal representative of your uncle's Estate can transfer title.  If your father had no Will, then you are going to have to have your father's heir's determined, so the executor or personal representative of your uncle's Estate can know who to transfer title to. If you are the only beneficiary or if you are the only and sole heir of your father, i.e., there is no one in his Estate who could complain about the executor or personal representative of your uncle's Estate transferring title directly to you, then, if you know that personal and can discuss it with him/her, then you can see if they will skip you having to do anything in your father's Estate to evidence title.  If he or will not or their are beneficiaries or heirs of your father's Estate other than you, then I think you are left with the above options and only the above options. I hope this answers your question(s). Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

Your deceased father's estate attorney does not have to give you notice of anything.  Probate jurisdiction in Texas is "in rem," meaning jurisdiction is over the property, not any particular person.  So, the only notice that gets issued is a Citation notice posted on the courthouse bulletin board; few people, if any, interested in an estate actually get notice by its posting.   You are also held to have constructive notice of the entire probate file, so any argument or excuse that you did not know about the probate filing will not work and will not help you.  As a result, you have a duty to check with the probate/county clerk in the county where your father was domiciled when he died.  You cannot blame your failure to search for or find out about the probate on your father's estate attorney or anyone else.  It is a situation where you have the duty to find the probate, not someone else having a duty to tell you about it. That being said, if the Will has not been filed for probate, then you, as an interested person in your father's Estate, have the right to send written demand to your father's attorney to deliver the original will to you, so you can file it for probate.  If he refuses to turn the will over to you after demand, you can file a motion to show cause against the attorney (or whomever has the original will) requiring him to appear in court and explain why he will not deliver the original to you; you can request that your attorneys' fees for being forced to file the motion.   I hope this answers your question(s). Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

Yes, you need an attorney to probate the will.  Because an estate is a separate legal entity, you cannot to anything in the court system on its behalf, unless you are an attorney, because it would be considered the unauthorized practice of law. The good news is that you a Will of your mother, which makes things easier.  If your mother died with no debts, then you can probate the Will as a Muniment of Title, which, simply put, is to probate it for purposes of making it a title document.  You can then file the Will and Order probating it in the deeds records, which functions as a title transfer document allowing you to own and sell her two real estate properties as she could have if she was alive.  Neither of these types  of probate is very expensive, but it is recommended that you probate the Will  because title to the properties right now is the name of your mother's Estate and the Will is not binding to transfer title to you until it is probated. I hope this answers your question. Sincerely, Kevin Spencer www.spencerlawpc.com ... Read More

Without knowing the details of your situation--which you SHOULD NOT post online--it will be very difficult for you to obtain a useful answer in a forum like this.  I strongly advise you to seek the assistance of a tax attorney or certified public accountant regarding your taxes.  You should look for someone that has experience working with the IRS on offers to compromise tax liabilities.  You should also confer with an estate-planning attorney to see if there is a way to shelter the money from your creditors (including the IRS).  Bottom line:  Seek professional advice so that you can find out what your options are, and then follow through.  Good luck!... Read More

you likely have a claim for breach of fiduciary duty against your stepmother.  it could be difficult to prove, but depending on the size of your father's estate, it could certainly be worth doing so.  you should speak with a skilled attorney with experience in estate-related disputes.  most firms that handle this type of work, including mine, offer free initial consultations.  good luck going forward. -Jay Mills   James J. Mills 2626 Glenwood Ave., Ste. 560 P.O. Box 10867 Raleigh, NC 27605 Telephone: 919.235.3824 Fax: 919.782.2311 www.burnsdaypresnell.com... Read More

In general, this kind of misuse of estate funds should be viewed as a civil wrong, not a crime. The appropriate remedy is to have the probate courts require the executor to repay the money and, if possible, to pay the costs of enforcement. The criminal justice system does have the time or expertise to pursue these kinds of claims. See an attorney.... Read More

I am sorry to hear about this loss. The most important thing for you to do is slow down. The administration of an estate takes months or years, and nothing is going to happen this week. Second, you should adopt an attitude of dealing with this matter in a businesslike way, which means not allowing family members to upset you -- at least as best you can -- and dealing with this methodically, professionally and not emotionally. Finally, you should engage the services of your own attorney. Your attorney can make a request for a copy of the will -- even before it has been offered for probate -- and then advise you regarding your rights. Moreover, if and when the will is offered for probate, you will automatically be entitled to notice and to have information about the contents of the will. (Again, there is no business reason why you need this information today, as opposed to at some point in the future when administration of the estate is actually going to begin.)  Your attorney can advise you about your right to contest any will that is not the most recent or improperly executed or otherwise subject to attack. There is no rush to be represented. Just treat this, as much as you can, like any other property or business matter. Your first job is to deal with your grief and not let that cloud your business judgment. Getting an attorney will help you keep perspective on the issues that matter. Good luck with this. And, again, sorry.... Read More

Court proceedings are open to the public. You or anyone else can sit in. However, probate proceedings rarely take place in a courtroom setting. Because nearly all probate matters involve uncontested administration, they are handled on papers by the clerk's office and not in open court. Therefore, the best way to keep yourself apprised of the matter is to review the file. If you want even more control, have an attorney file an appearance on your behalf.... Read More

It is unclear what your status is. You have apparently taken occupancy without a signed lease. Now the landlord has tendered a lease to you which calls for a security deposit, which is customary in residential real estate transactions. Are you still in occupancy? Do you intend to remain? Are you paying rent?... Read More