Settling an estate

[Ben]

How would you decide this case?



The County estate department told me that in the absence of a real property
clause in my uncle's Last Will and Testament at the time of his death title
to any real property in his name transferred to the Intestate heirs and that
the Personal Representative could apply to the Court for authority to sell
the real property in the absence of sufficient assets to pay the debts of
the estate. To avert sale of the real property I contacted the Personal
Representative to inform him of the following facts, request a listing of
the debts and assets of the estate and payment of debts and transfer of
title in absence of any objection by the law, the Court, the intestate heirs
or the Personal Representative in light of the following facts:

1) The real property was purchased by me at auction in the County
approximately three months prior to my uncle's death.

2) Due to the short time between the holding of the auction and its
advertisement I borrowed the required escrow deposit from my uncle. His only
financial (or other) interest in the property was his loan of the escrow
deposit. My uncle forgave this loan at the time I paid the balance of the
purchase price and offer to repay him because my mother and I were the sole
heirs to my uncle's personal property which made repayment cyclic and
unnecessary.

3) At the time of the auction I asked the auctioneer to place my uncle's
name on the title only to secure the loan of the escrow deposit in the event
of my own death before repayment could be made. I was unaware at the time
that my uncle was not allowed to own real property as a resident of the
County retirement center in accordance with their residence rules.

4) Within one month of purchase of the real property I paid the entire
balance of the purchase price as evidenced by my cancelled check and
testimony.

5) As my uncle's power of attorney I had his authorization prior to
his death to incorporate a real estate clause into his Last Will and
Testament and to transfer title to my own name but my overriding concern and
attention was directed to seeing that his proper care and wellbeing were
assured before his death rather than directing my attention away from this
duty to assure my own interest in his estate was protected.

Although the Personal Representative applied to the Court for authority to
sell the real property she failed to provide me with a list of estate assets
and debts or a sales price.

Although I have offered to accept the debt of the estate as a lien against
the real property in conjunction with transfer of title to my name in
absence of the list of estate assets and debts and a sales price more than
4,750 days have elapsed since my uncle's death under threat of sale without
settlement, explanation, listing of the debts and assets of the estate or
disclosure of a sales price. I do not know whether the motive of the
Personal Representative is to accumulate time to justify a higher fee or to
gain financial benefit from an eventual sale or to deprive me of the
personal and real property.



Perhaps the Court can determine why the Personal
Representative is withholding settlement, an explanation for the delay, a
listing of the debts and assets of the estate and disclosure of a sales
price. Surely 4,750 days since my uncle's death should be enough time to
resolve any legal issue as well as to collect, assemble and review any
information necessary for settlement. I will be sixty years old in September
and seek settlement prior to my death which most likely will occur within
the next 4,750 days.

I ask the Court to intercede and mandate settlement through placement of a
lien against the real property in the amount of the legitimate (original)
debts of the estate and in conjunction with transfer of title to my name in
light of the above facts and in absence of objection by the law, the Court
or other intestate heirs. I ask the Court to deny the Personal
Representative any financial benefit resulting from unnecessary delay in
bringing the estate to settlement.

[Guest]

"Ben" <juicy@yahoo.com> wrote:

How would you decide this case?

What "case"? What you say below reads in small part as if the draft
of some sort of amateur pleading in a lawsuit or contemplated lawsuit
of some kind, but you don't actually say. However, what you do seem
to say is that more than thirteen years have gone by since the death
and so you at least raise though you don't answer questions of
potential staleness.

The County estate department told me that in the absence of a real property clause in my uncle's . . . Will . . . at the time of his death title to any real property in his name [would be] transferred to the Intestate heirs and that the Personal Representative could apply to the Court for authority to sell the real property in the absence of sufficient assets to pay the debts of the estate.

Is what you were told correct?

(Note that you neglect to report what the will says about this
subject.)

To avert sale of the real property I contacted the Personal Representative to inform him . . . of the following facts: 1) The real property was purchased by me at auction in the County approximately three months prior to my uncle's death.

In light of what you go on to say in your para. 3 below, this is a
confusing statement that appears to be contradicted by that para.
where you say that, at your explicit request, "the auctioneer . . .
place[d your] uncle's name on the title" and by your other references
below to your having been granted a power of attorney by your uncle.
Unless further explained, by your "by me" reference above you appear
to be conflating your role individually and in your own behalf as
principal with that as agent in a way that induces you to beg the
underlying core question you pose (i.e., apart from issues of
timeliness and of proof, who, as between/among you and your uncle's
estate and whoever are the heirs to whom you refer, is a court in a
contested lawsuit likely to say is the owner of the real property in
question?).

2) Due to the short time between the holding of the auction and its advertisement I borrowed the required escrow deposit from my uncle. His only financial (or other) interest in the property was his loan of the escrow deposit.

Your here stated "only" and "or other" characterizations are also (at
best) too conclusory in light of the fact that you appear also to be
saying below that title to the property was granted to your uncle --
if so, hardly a minor detail that would (rationally) relegate "or
other" to a parenthetical aside as above.

My uncle forgave this loan at the time I paid the balance of the purchase price and offer to repay him because my mother and I were the sole heirs to my uncle's personal property which made repayment cyclic and unnecessary.

This claim neglects to explain whether your uncle and, hence and
relatedly, his estate's fiduciary would agree that the transaction to
which you refer was a "loan" instead of, e.g., your acting on your
uncle's behalf to acquire the property with funds which (you say!)
were furnished to you by your uncle.

It also neglects to say what you mean by "forgive" in terms of whether
you do/don't here refer to some sort of writing signed by your uncle
in which said (at least in substance even if not in these exact
words), "I [your uncle] forgive the loan" and so -- especially because
you don't answer the "where?" question -- you relatedly raise but
without answering a the potentially (actually?) related question
whether, in the state in question, there is an evidentiary "Dead Man's
Statute" which would disbar you from testifying to what you here say
if by "forgive" refer only to what you would claim to have been an
oral "forgive[ness]" by our uncle.

3) At the time of the auction I asked the auctioneer to place my uncle's name on the title only to secure the loan of the escrow deposit in the event of my own death before repayment could be made.

This claim implicates (among potential other issues if there were
contested litigation dealing with these matters) "best evidence" and
"Parole Evidence" and "Statute of Frauds" (and, as noted, perhaps also
"Dead Man's Statute") issues.

Absent further elaboration of the facts directly addressing all these
issues, the best -- and, it may be, only permissible -- evidence that
would answer the question,

Who is the owner of the property in question?

is (obviously and yet, as you in effect but perhaps insufficiently
acknowledge) to be found in what the deed states.

I was unaware at the time that my uncle was not allowed to own real property as a resident of the County retirement center in accordance with their residence rules.

Assuming your uncle had agreed as a condition to his being a resident
in the county's retirement center that he did not and would now own
real property, the most you here state by the factoid immediately
above is that your purchase of the property on his behalf (as
evidenced by the deed delivered in his name) may have violated that
obligation to whatever is the county agency to which you refer; but
even if so, you do not explain how that circumstance is relevant to
(let alone that it would contradict) his status before he died of
owner of the subject property.

4) Within one month of purchase of the real property I paid the entire balance of the purchase price as evidenced by my cancelled check and testimony.

If accompanied by a much more factually clear statement of the source
of funds (you've been emphasizing your status as your uncle's agent
under color of a power of attorney), it is possible that this factoid
might be relevant to a would-be claim by you either for reimbursement
from the estate, if such a claim would not be untimely if not made
earlier, although not necessarily as any (let alone: sufficient)
evidence that you own the property in question.

5) As my uncle's power of attorney I had his authorization prior to his death to incorporate a real estate clause into his Last Will and Testament and to transfer title to my own name . . .

. . . it is at least theoretically conceivable that this might be
possible, depending where your uncle and you were residing at the time
and on what the power of attorney and your uncle's will said --
information you do not supply anywhere in your posting/query --
although, unless the information is supplied in more detail, this
assertion is highly questionable as presumptively a potential or
actual breach of fiduciary duty and (perhaps more to the point) moot
(since you do not say that you've done any of this) and, in addition,
.. . .

. . . but my overriding concern and attention was directed to seeing that his proper care and wellbeing were assured before his death rather than directing my attention away from this duty to assure my own interest in his estate was protected . . . .

. . . at least until/unless this, too, is further explained, it is a
patently incredible statement: a deed takes only a few minutes to
prepare; you do not even say that there was any need in the
intervening two months for you (ever) to have acted as power of
attorney because you do not say that your uncle (the very person you
assert to have been mentally competent to "forgive" your loan ?!?!)
was not competent to sign a deed let alone that you could not have
asked him to do so or did so ask.

Although the Personal Representative applied to the Court for authority to sell the real property she failed to provide me with a list of estate assets and debts or a sales price.

You appear to be suggesting that you were a named beneficiary or may
be one of the "Intestate heirs" to whom you refer or that you are
arguably a creditor of the estate and, anyway and at the least, that
you are a person interested in the estate because you seem to be
contending in effect even if not sufficiently clearly that the deed
ought be reformed to establish that you and not your uncle own the
property in question, i.e., that, under any number of theories, you
are a person with standing who (if it isn't too late to do so) may
petition (sue) for an accounting and yet you do not say anywhere in
your posting that you've done this (is this the "case" about which
you're trying to ask?). Therefore, without, at least, a fact-specific
clarification of these issues, your factoid stated immediately above
(that she "failed" to give you an accounting) appears, at most, to be
of minimal historical relevance but not of (present) importance.
Meanwhile, you haven't yet reported facts that would support
concluding that the estate representative has any law-redressable
obligation to offer or negotiate about the property in question for
sale to you (although, at least conceivably, it is possible that it
might make good business sense to do so).

Although I have offered to accept the debt of the estate as a lien against the real property in conjunction with transfer of title to my name in absence of the list of estate assets and debts and a sales price more than 4,750 days have elapsed since my uncle's death under threat of sale without settlement, explanation, listing of the debts and assets of the estate or disclosure of a sales price.

Other than to raise the "So what? [shrug]" question and to continue to
leave open questions you implicitly raise at the outset of your
posting/query but nowhere proffer any answer -- namely, who are the
"Intestate heirs" to whom you first refer above and has the estate's
fiduciary transferred title of the property to him or them and, if
not, why not? -- this statement appears to be no more than a complaint
that you'd like to buy some property the owner for the time being
doesn't want to sell to you. And so, again: So what?

I do not know whether the motive of the Personal Representative is to accumulate time to justify a higher fee or to gain financial benefit from an eventual sale or to deprive me of the personal and real property.

Your state of mind -- here, what you say you "do not know" -- does not
appear to be relevant to determining what the estate's fiduciary's
"motive" has been or whether (whatever it may) that motive is
significant, although you do here continue to fail to answer why the
estate's fiduciary has not (long ago?) liquidated the estate, paid all
if any debts, and distributed any net proceeds.

Perhaps the Court can determine why the PersonalRepresentative is withholding settlement, an explanation for the delay, a listing of the debts and assets of the estate and disclosure of a sales price. Surely 4,750 days since my uncle's death should be enough time toresolve any legal issue as well as to collect, assemble and review any information necessary for settlement.

You appear to know that, generally speaking (though you don't say
whether there are court-directed conditions to the fiduciary's role
that provide otherwise), an estate fiduciary is required to provide a
timely and full/detailed accounting for his or her or its acts as
fiduciary unless, as relevant, all estate creditors directly or in
effect acknowledge satisfaction of their actual or would-be claims
(including by too-long foot-dragging in neglecting law-effectively to
make a timely claim) and the estate's beneficiaries waive an
accounting. However, you here continue to fail to report whether
anyone has sought a judicial account and, if not, why not.

I will be sixty years old in September and seek settlement prior to my death which most likely will occur within the next 4,750 days.

Except for its second portion, which is irrational on its face unless
further explained factually, the first part of this statement suggests
the desirability of an appropriate accounting or other proceeding,
possibly including a determination of adverse claims to real property
proceeding, although you have yet to make clear factually whether you
would probably have a valid a basis to make and pursue a latter such
claim.

I ask the Court to intercede and mandate settlement through placement of a lien against the real property in the amount of the legitimate (original) debts of the estate and in conjunction with transfer of title to my name in light of the above facts and in absence of objection by the law . . . to deny the Personal Representative any financial benefit resulting from unnecessary delay in bringing the estate to settlement.

Pretty much anyone can ask (and, relatedly, sue) for pretty much
anything (to "sue" being just a slightly-law formalized way to ask for
some sort of relief from a court). But what you continue by these
last statements not to report clearly is whether you here quote or
paraphrase some sort of contemplated or pending pleading and, also
despite your reference to a "case" above, you continue not to make
clear whether there is/isn't an actually pending or (not time-barred)
proposed real-world law-related "case" (a lawsuit? a "quiet title"
action? a proceeding for a compulsory accounting? some other judicial
proceeding of some sort?). In sum, therefore, you prevent, you
nowhere in your posting/query enable, any answer to your first posed
question above.