QUESTION
How to probate my mother's estate and what to do about the grandson living in her house?
Asked on Dec 13th, 2013 on Estate Planning - California
More details to this question:
My mother lost her battle with cancer 3 weeks ago. She suffered the past year in which she lived with me so I could care for her. I was unable to work due to her constant need for care and pain management. I got up all through the night every 2-4 hours to care for her, all while my sister who is ironically a nurse maintained her normal lifestyle. Additionally, her son, age 24, has lived with my mother for years rent free and continued to do so while I cared for mom. My mother’s benefits were used to pay the mortgage, utilities, etc., at her house, where he lived and continues to. My mortgage has fallen behind and I am possibly facing foreclosure since I couldn't work. My sister is of the opinion that my nephew can take up payments on moms house, which is ridiculous since he only works part time and can't even make a cell phone payment. I recently retrieved my mom’s bank statement and I see where my sister has been using the money for restaurants, retail stores, even a check for $1100 cash! Not to mention that she and my nephew just suddenly drove up with new cars! My question is this, my mother’s will stated that everything was to be split equally between me and my sister. My mother allowed my sister to handle her financial affairs, but the money she's using out of moms account should be half mine. Also, how can she allow her son to just take up payments on moms home when it should be half mine? I realize that since it’s a brand new house, there's no equity and therefore, no value, but I am seeking advice on what steps I should take or what rights I have? I feel as if I’m getting cheated and treated unfairly. I think my sister is going to try to approach the estate without getting it probated, so that the house payment will not increase. What should I do?
11 ANSWERS
Edwin K. Niles
Who does the will name as executor? If you, see a probate lawyer ASAP.
Answered on Dec 19th, 2013 at 7:09 AM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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You really need to sit down with a probate attorney, at this point. Your situation is not entirely clear. You need to know how the assets are titled and what the estate planning says. Going through probate would not increase the payments on the house. If probate is necessary. there is no way around it. The accounts are tricky, because if they were joint or if your sister was beneficiary of the accounts, they may now belong to her. That would open up a question as to how and why the accounts were made joint and whether or not there is anything you can do about it. If the assets were all in your mother's name alone, then probate will be required.
Answered on Dec 18th, 2013 at 9:40 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Obtain the services of a probate lawyer to probate your mother's will, and have yourself appointed as the executor. If there is enough of an estate the lawyer is paid out of the estate.
Answered on Dec 18th, 2013 at 9:39 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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You need to get an experienced probate lawyer to help with this; there are things you can do about the transfers your sister made before your mother passed, but the exact steps will have to be carefully thought through based on the exact circumstances. Do not delay, get on this today.
Answered on Dec 18th, 2013 at 9:38 PM
File a Petition for Probate of the Estate in Superior Court. Lodge your mother's will with the court, along with a certified copy of the death certificate. Take a certified copy to the bank, and shut down their access if possible.
Answered on Dec 18th, 2013 at 9:25 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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You should find a local attorney to file a probate case for you. Unless there is a will that names somebody else, I would suggest that you be the personal representative. Then you and the attorney can go back after your sister for what she took from your mother. It will be complicated, messy and possibly costly, depending on how much your sister wants to fight.
Answered on Dec 16th, 2013 at 11:36 AM
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You need to hire an attorney. If you cannot afford to do so and live in Southern Nevada, contact Legal Aid Center of Southern Nevada to see if you can qualify for a pro bono attorney. Best of luck to you.
Answered on Dec 16th, 2013 at 10:32 AM
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Probate the estate, get the bank records, and have your sister charged with what she has spent since your mother died and see if the court will charge he with what she used before mom died. Have the house sold - it is a burden on the estate and there may be some small amount of equity that can be shared.
Answered on Dec 16th, 2013 at 10:31 AM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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You have a lot of legal and financial issues here, and need to find an experienced probate attorney who can give you guidance on how to protect your interests.
Answered on Dec 16th, 2013 at 10:31 AM
Contact an estate lawyer immediately for advice. You can petition the local probate court to name you executor of the estate. Even if your sister was named executor in the will, you can challenge the appointment on the grounds that your sister and her son mishandled your mother's affairs. Sell the house. If your nephew wants to buy it, he can come up with the funds on his own.
Answered on Dec 16th, 2013 at 10:31 AM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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Your mother has a will that must be filed with the County Clerk. Statute requires filing the will within 30 days of the decedent's death. A probate estate can be opened by any interested party. Even if your sister is the nominated executor under the Will you, as an heir, can force her to disclose what happened in your mother's accounts while she was living with you. You may be able to show that the purposes were without your mother's consent and not for her benefit. It may be possible to recover the funds for your mother's estate. You can also force the sale of the property unless the will specifically directs otherwise. If the nephew continues to reside in the home of the decedent the nephew can be required to pay rent to the estate, unless there was a written lease, after being given a reasonable period of time to relocate. At the least your sister should buy your interest in the real estate and take over ownership of the property. Continuation of ownership of the property while paying the mortgage and other expenses of the property without a good faith effort to relieve the estate of that burden could be found to be a waste of estate assets and the executor could be liable to the estate for such a waste of its assets. As the caregiver for your mother you may be able to file a claim against the estate for compensation for the care provided your mother in her last illness. A statutory custodial claim requires living with the decedent for three years and that does not appear to be your situation. A standard creditor claim can be filed but you must be able to overcome the presumption that the services were provided gratuitously as a child of the decedent. You must be able to establish an express or implied contract.
Answered on Dec 16th, 2013 at 10:31 AM