QUESTION
What are the chances of their success regarding this getting the house?
Asked on Sep 18th, 2013 on Estate Planning - Michigan
More details to this question:
My mother quit claimed a property to me and her as joint tenants with right of survivorship in April 2013, she passed away in May of 2013, this was done while she was in a nursing home and the notary that we used worked at the nursing. Mom did not have a will and my brothers have been made co-administrators, now my brothers are trying to get the house put back into her estate/probate. The Attorney has also filed a LIS PENDENS on the house. My mom and I didn't trust my brothers so I have video where my mother states that she authorized me to put my name back on the deed.
15 ANSWERS
William M Stoddard
I am not sure if the video tape is going to be good evidence. But if it clearly proves your mother had all her marbles and was not being influenced by you or anyone else, it might be the saving grace in this situation. Please understand that actions taken by people who are in nursing homes are always suspect. Any action like giving an interest in a house to one child only at the expense of other children is suspect because some members of families influence their gifters or even force a transfer using undue influence. You state you and your mother did not trust your brothers. Well, that tape might suggest she was not doing what she did because your were feeding her with the idea that the other children should not be trusted. Otherwise, the court is going to bring the house back into the estate and the property once sold will be distributed equally between all members of the family who can take a share. Your mother could have done this better and that would not have been the outcome. But she did not. So make the tape after copying available to the estate attorney and prepare to ask for it to be played by the court. I see if you can get what your mother wanted, you probably need an attorney to work with you.
Answered on Sep 23rd, 2013 at 5:05 AM
You have a problem of possible undue influence. It is acerbated if she was in your care or otherwise dependent upon you during the last months of her life. Hopefully, the attorney you used to make the Deed, took some additional measures to show her competency and independent decision making. A Will and trust might have been very handy right now.
Answered on Sep 23rd, 2013 at 5:00 AM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Well, It was all good until you got to the part about putting your name back on the deed. If she was cognizant of what she had and who should get her property and you did not exercise undue influence on her, then the deed should stand. If you signed the deed on her behalf, you may have problems.
Answered on Sep 23rd, 2013 at 4:54 AM
If your mother was not doing so in anticipation of death and was mentally competent, then the property should be yours. You will undoubtedly need an attorney to represent you as you will not be able to fight their attorney by yourself.
Answered on Sep 23rd, 2013 at 1:32 AM
Admiralty / Maritime Attorney serving Monrovia, CA
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The Law Office of Nathan Wagner
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If your mother was mentally competent to sign a deed and you did not force her to sign it (and it sounds like you didn't force her), then they should not be able to claim the house as part of the probate estate. I highly recommend contacting a local probate attorney to help you with this matter.
Answered on Sep 20th, 2013 at 5:17 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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Their chances are reasonably good. Lawyer up.
Answered on Sep 20th, 2013 at 5:17 PM
Edwin K. Niles
I don?t think anyone can answer this question. However, most disputes of this nature get settled during the litigation process.
Answered on Sep 20th, 2013 at 5:05 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Tough situation. Ideally, you would have had an attorney prepare the deed for you, because then, the attorney could have assessed your mom's condition, taken precautions to avoid arguments of undue influence, and generally, testified on your behalf. Since that was apparently not done, you have the document and the notary to support your position. Since this is in court, it is going to cost you something to defend. Court proceedings are long and expensive and the result is never guaranteed. Having said that, your position would seem to be stronger, but that is without any other facts regarding your mother's mental capacity at the time the deed was signed. I think you WILL need to hire an attorney to defend your position.
Answered on Sep 20th, 2013 at 4:10 PM
You should retain an attorney to protect your interest in the house.? Hope you can show that your mother was competent to execute the deed.
Answered on Sep 20th, 2013 at 4:09 PM
2 Awards
You need an attorney. This is an uphill battle that can go either way. Can they succeed against you, possibly. If the transfer was what your mother intended and you have evidence of that, get an attorney and fight it. Otherwise your brothers may be successful at showing you influenced your mother into that "death bed" transfer and it could be reversed. Get an attorney.
Answered on Sep 20th, 2013 at 4:09 PM
Lawyers are not permitted to speculate on percentages or chances. Your position has significant risk and you need to hire your own lawyer specializing in estate litigation immediately.
Answered on Sep 20th, 2013 at 4:09 PM
Probate Attorney serving Palatine, IL
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Law Offices of Robert H. Glorch
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The outcome will depend on the specific facts. Presumably the estate is going to allege that your mother lacked capacity and/or that you unduly influenced her. The specific facts will govern the outcome. Impossible to handicap without a lot more facts, and even then, these cases are tough to predict.? You would be well advised to retain counsel ASAP.
Answered on Sep 20th, 2013 at 4:00 PM
3 Awards
It all comes down to her capacity. In Nevada it will be difficult, you will have a lot more to lose than the house. "You need to speak with counsel experienced in asset recovery so you can decide what steps to take in contesting or settling. You need to speak with counsel as soon as possible. This information is only intended to give general information in response to an inquiry. It does not establish an attorney client relationship. This response is only based upon the limited facts presented and is merely intended to assist you in determining if you should contact an attorney to provide you with legal advice.
Answered on Sep 20th, 2013 at 3:59 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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Obtain the assistance of a probate litigation attorney to represent you in this matter. Law Office of Victor Waid Speciallizing In: Estate Planning Trusts, Wills, Probate.
Answered on Sep 20th, 2013 at 3:59 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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You will need an attorney, it will depend on the evidence. It is not unusual for persons, facing their death and wills to make gifts and distributions and they can hold up as long as it can be proven the person was competent at the time of the transfer and not under "undue influence" but rather acting on their wish. Sounds like you may have a good case to keep the house.
Answered on Sep 20th, 2013 at 3:58 PM