Estate Litigation Legal Questions

First of all, he did not get a loan for the truck in your name unless he committed fraud.  You should report that to the police. You did not say whose name the truck is titled in? Regardless of who used the truck, the owner is whoever has his name on the title. If you took out a loan to assist him in buying a truck, then you are responsible for the loan payments. If you don’t make the payments, the truck will be repossessed.  Of course, your credit is ruined, but that is your choice.  If you were still married at the time of your husband’s death, you have a right to probate his estate as well as filing for year’s support. If the truck is in your husband’s name, it is in the estate.  If the deal with your husband was that you would take out the loan and he would make the payments, and you can prove that he was making the payments, you may have a claim against the estate for the remaining balance of the loan. You, along with your husband’s children, will share the estate equally. You also have the right to sell all property to satisfy all estate debts. ... Read More

A will can be offered for probate after the testator passes away.  Only the probate judge can deny probate to the will.  The only reason probate can be denied is if the will is invalid for any number of reasons.  Additionally, if the testator does not own anything at her death, there is no reason to probate the will.  You can’t use a will’s bequests to drag property back into the estate.  If you believe your mother was not of sound mind when she transferred the property to the brother in law, you can file suit against the brother in law and ask that the deed be canceled due to your mother’s mental incapacity.  Otherwise, it is a valid transfer.... Read More

As the survivor of a joint bank account, those funds are yours and do not have to go through probate.  You are not obligated to pay the mortgage payments for the house.  However, if you do pay them, then you are entitled to be reimbursed by the estate.  As a practical matter, you may want to continue paying the mortgage until the transfer of the house is sorted out for the beneficiaries. If your sister had a "pour over" will that gave everything to her trust, then you may transfer the house to the trust with a Heggstad Petition.  Otherwise, you may need a formal probate proceeding. Contact an attorney for a full consultation.... Read More

Under Massachusetts General Laws, Chapter 190B, Section 2-516, a person who holds a will is required, within 30 days of your father's death, to either begin the probate process or file the will with the Probate Court. See https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B/ArticleII/Section2-516... Read More

You should have brought an ancillary proceeding in New York when your father died.  You do not say how long has passed.  However, if your father owned the property individually, your mother and your sister and you would have each had an interest in the house.  To know what to do now it depends how the property is now titled, and what the documents say.... Read More

I'm sorry to hear of your father's tragic passing.  No, a text message could not serve as a valid will.  You should act quickly to petition to open an estate for your father before the girlfriend tries to take action.  If she is appointed, you'll have a more difficult time raising your concerns about the disposition of his estate. ... Read More

Unless your parent, who was her child, died, you are not an heir.  However, there is a principle called virtual or equitable adoption that may cover you.  It is probably a long shot, but might be worth pursuing.  Of course, your aunts and uncles could all include you as an heir and give you a part of their inheritance.  You really need to speak to a probate lawyer with experience handling cases like yours.... Read More

Yes, the laws of Hawaii apply.  Heirs are supposed to be notified of probate proceedings and it sounds like you were not, which could work in your favor . . . but it has been nine years since your father died and my guess is that there is a statute of limitations in Hawaii that limits claims against an estate to less time than that.  You also say that you made requests for years and years, so this is not recent news to you.  The time limit probably will prevent any claim against the estate and maybe against the sister as executor as well.  Probate filings are public in most states and often available online, so you could do some research to see if you can get copies of his Will and the probate proceedings.  If his family does not recognize you as his child, you would have to prove that first.  Depending on the value of his estate and what his Will states, it might not be worth the significant legal effort involved to prove your status and then go after the sister for not providing you with notice or a share of the estate, if you are entitled to it.  If you want to determine what it might cost and what you might gain, I recommend finding an experienced probate attorney in Hawaii to do a consultation.  The specific facts of your situation and your father's probate proceedings will determine what, if anything, you can do. ... Read More

I'm sorry for your loss.  If your parents died without Wills, the law of intestacy in the state where they lived determines who has the right to their probate assets.  It sounds like it is you and your brother, along with any other siblings or the children of any deceased sibling.  It sounds like their addition to your brother's home and paying off his mortgage were gifts as the house is in your brother's name, so those are not probate assets.  Their personal belongings are, unless they gave them to your brother while they were living.  So are any bank accounts or other assets that were just in their names. ... Read More

If the parent dies with will giving the estate to siblings and one sibling dies before the (sibling parent) then the terms of the will determine who gets predeceased sibling's share. If sibling dies after (parent sibling) this will have no effect upon parent's estate.   Note, if there is homestead property involved then if the parent had any minor children at death then the devise of the homestead might be void. ... Read More

Probably.  It depends on the type of the assets being inherited, the terms of the Will, and if they are probate assets (only solely by the person who died with no named beneficiary and so controlled by that person's Will).  The Will may have specific language about how to handle this situation.  But, in most cases, if an inheritor named in a Will survives more than a couple days past the Will-maker's death, they are entitled to that inheritance.  If that inheritor dies before they receive the inheritance, it should be paid to their estate.  The inheritance then is distributed in accordance with the inheritor's Will or the law of intestacy in the state where the inheritor resided before her or his death. ... Read More

If your husband had a will, you need to probate that will.  If you have done that and the son has filed a caveat, you are free to hire a lawyer to help you probate the will.  If you are unhappy with your current lawyer, you are free to fire him and retain a new lawyer. If you are representing yourself, you can obtain subpoenas from the probate court so that you can depose witnesses or call them to trial to testify.... Read More

Yes, the estate is liable for the costs of maintaining a house owned by the estate.  I'm assuming that you have been appointed executor by the court, which gives you the legal authority to open an estate bank account, sell the house, etc.  If the estate has no funds to pay the bills, the heirs are not responsible to pay them out of their own funds. You may decide to invest some of your own money into the house for renovations to help it sell.  In that case, I would come up with a written agreement to ensure that you will get your money back when the house sells.  If the house is worth less that it will cost to pay these bills, the other choice is to not pay them and let the creditors file claims against the house and/or try to sell the house as is for less money.  Again, heirs are not personally liable.  ... Read More

It sounds like you should file with the probate court to be appointed executor of your mother's estate.  You then will have the legal authority to deal with the house, which includes the authority to list it for sale, rent it, or change the locks.  It sounds like your brother and the drug dealers are trespassing, not renters that require eviction proceedings.  Good luck.  ... Read More

A couple things you may not know that can be useful: your uncle's power of attorney is not operative after his death, property he owned jointly with his companion goes to the companion automatically upon his death regardless of what his Will states, and any assets owned by a trust are managed and distributed in accordance with the trust not his Will.  An executor of your uncle's estate would have the legal authority to control and distribute any assets owned soley by your uncle in accordance with his Will.  The probate court appoints the executor, so the next step would be to file with the probate court.  Spouses, parents and adult children have priority to be appointed, but your filing as a niece or nephew would at least get the process started.  Notice would go to his companion and closest relations, and they would have the ability to seek appointment and file his Will, or be required to file the Will with the court if they do not comply.  If the companion seeks appointment, you can oppose it and present evidence to the court of her or his taking the car, etc.   ... Read More

The surest way is to file a law suit against the agent and request bank statements and other financial information, which they will have to provide.  Since your mother-in-law has died, the lawsuit would have to be filed by her estate.  A court-appointed executor is needed for this, so her estate will have to be probated.  Good luck.  ... Read More

I cannot be sure how to interpret a trust based on one clause, but this clause says that if Jean Smith is alive when her sister (the surviving Trustor) dies, then the trust should pay Jean Smith $10,000.  If the $10,000 is not paid to Jean Smith before Jean she dies, then the trust should pay her estate, unless there is specific language in the trust stating that failure to pay someone while they are living results in a lapse of the gift.  But, in general, a trustee's failure to make a payment required by the terms of the trust should not cause the gift to lapse. ... Read More