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Thread: Settling an estate

  1. #1
    Junior Member
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    Default Settling an estate

    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.





  2. #2
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    Default Settling an estate

    "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.



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