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Forcing probate
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BelizeBreeze
Senior Member
What are the facts?
Basic facts
Facts are:
My brother took/assumed unoffical control over mom's estate and removed all her belongings from her apartment and had her mail forwarded to his address.
He did not inventory anything. What he didn't want he gave away to friends. He ignores what comes in his mailbox in mom's name ei her credit card bills and her hospital bill (she died in the hospital).
He refuses to share any information about her assets or her liabilities.
He refuses to probate her estate or even discuss it with me!
I want my share! But I can't get bonding insurance because of the mess brother has already made! So I was hoping to find a way to force the estate into probate by other means.
Facts are:
My brother took/assumed unoffical control over mom's estate and removed all her belongings from her apartment and had her mail forwarded to his address.
He did not inventory anything. What he didn't want he gave away to friends. He ignores what comes in his mailbox in mom's name ei her credit card bills and her hospital bill (she died in the hospital).
He refuses to share any information about her assets or her liabilities.
He refuses to probate her estate or even discuss it with me!
I want my share! But I can't get bonding insurance because of the mess brother has already made! So I was hoping to find a way to force the estate into probate by other means.
Do you know for sure whether your mother had a will or not?
You need to have some idea of the value of her estate before you can decide whether it's worth it to go through probate. Do you know where she did her banking? Did she own her own house?
If you know that she had a will and that brother is deliberately withholding it, you can file to become administrator or hire an attorney to be one and ask the judge to force brother to produce it for the court.
Is the bank account money still there or has brother gotten bank to pay him? If not you need to find out from the bank whether he was named as joint account owner or beneficiary--if that was the case then he can get the money without going through probate. Bank should not have released that money to anyone besides the executor unless that person was named as beneficiary or joint account owner. If it is still there, then you need to file to open up probate at the county courthouse.
DANDY DON IN OKLAHOMA ([email protected])
You need to have some idea of the value of her estate before you can decide whether it's worth it to go through probate. Do you know where she did her banking? Did she own her own house?
If you know that she had a will and that brother is deliberately withholding it, you can file to become administrator or hire an attorney to be one and ask the judge to force brother to produce it for the court.
Is the bank account money still there or has brother gotten bank to pay him? If not you need to find out from the bank whether he was named as joint account owner or beneficiary--if that was the case then he can get the money without going through probate. Bank should not have released that money to anyone besides the executor unless that person was named as beneficiary or joint account owner. If it is still there, then you need to file to open up probate at the county courthouse.
DANDY DON IN OKLAHOMA ([email protected])
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more details
As far as a will goes.....ready to get complicated?
I have 2 brothers. Let's call the one I've mentioned already, Brother A.....both brothers claim to have seen Mom's will a few years back, however neither claim to have been able to find it after she died. They both say Mom left Brother A as executor, but they both refuse to say how she divided up her estate per the will. My 16 year old niece was living with my mother when she died. Mom was sick and the morning of the day she died she told my niece where the will was in case she died that day. It was in a metal box. Brother A has-took- that box after Mom died but claims no will was in it. No one has been allowed to look in the box except Brother A. Additionally, Brother A said he asked his lawyer-after Mom died- if he had to be executor if he didn't want to and his lawyer told him no (which is true, I know) however, instead of getting someone else to be executor the will disappeared!..actually Bro A said they never did find it. I think Brother A got rid of the will because he liked the following scenerio better......
The day she died I was told they found an undated check in her purse for most of what was in her account made out to both brothers with a note that said she was doing it to avoid having to pay the creditors but that the money was supposed to go to take care of my niece if anything should happen to her. Brother A says there was such a check, but he did not cash it. Brother B says there was a check and they put the money in a trust fund in both their names until the creditors go away- they claim this will take one year- thereupon they intend to split it evenly as they now claim the note did not say to take care of my niece. So that's how they got the money out of her account as far as I know. They dated the check after she died -don't know what date they put on it- and opened a trust in both their names. The amount of the check was over $30,000. Brother A says they left $1000 in her account so the bill collectors could see there wasn't enough money to pay them and they'd go away.
Other answers....Mom did not own a house anymore. She had sold it a few months before she died and that's where the large amount of cash came from.
I do know where she did her banking. Question....what information can I get from her bank without my being administrator?
I'd like to know if they legally took the money out and therefore if the trust fund is valid because without a will and if the check was not valid for some reason (perhaps because they put a date on it that reflected a day when she was still alive so they could cash the check) then I am entitled to my share. However,
if the check is valid then I can't argue for my share.
I don't trust the brothers to hand over my share after a year and I am told that I only have a year to make a claim for my share or else lose it. I can't afford the expense of a lawyer if I don't have any share coming to me in the first place. That's why I was hoping there was a way to force probate without my having to hire a lawyer or file to be administrator. (I explained in my other thread "Non-probated estate questions" that I was having trouble getting bonded due to the mess of the estate and I would have to put up my own collateral which I don't want to do if I don't have anything coming to me to start with.)
So now back to the main question....is there any way to take the brothers to court to force the estate into probate that does not involve me either hiring a lawyer or me becoming administrator?
As far as a will goes.....ready to get complicated?
I have 2 brothers. Let's call the one I've mentioned already, Brother A.....both brothers claim to have seen Mom's will a few years back, however neither claim to have been able to find it after she died. They both say Mom left Brother A as executor, but they both refuse to say how she divided up her estate per the will. My 16 year old niece was living with my mother when she died. Mom was sick and the morning of the day she died she told my niece where the will was in case she died that day. It was in a metal box. Brother A has-took- that box after Mom died but claims no will was in it. No one has been allowed to look in the box except Brother A. Additionally, Brother A said he asked his lawyer-after Mom died- if he had to be executor if he didn't want to and his lawyer told him no (which is true, I know) however, instead of getting someone else to be executor the will disappeared!..actually Bro A said they never did find it. I think Brother A got rid of the will because he liked the following scenerio better......
The day she died I was told they found an undated check in her purse for most of what was in her account made out to both brothers with a note that said she was doing it to avoid having to pay the creditors but that the money was supposed to go to take care of my niece if anything should happen to her. Brother A says there was such a check, but he did not cash it. Brother B says there was a check and they put the money in a trust fund in both their names until the creditors go away- they claim this will take one year- thereupon they intend to split it evenly as they now claim the note did not say to take care of my niece. So that's how they got the money out of her account as far as I know. They dated the check after she died -don't know what date they put on it- and opened a trust in both their names. The amount of the check was over $30,000. Brother A says they left $1000 in her account so the bill collectors could see there wasn't enough money to pay them and they'd go away.
Other answers....Mom did not own a house anymore. She had sold it a few months before she died and that's where the large amount of cash came from.
I do know where she did her banking. Question....what information can I get from her bank without my being administrator?
I'd like to know if they legally took the money out and therefore if the trust fund is valid because without a will and if the check was not valid for some reason (perhaps because they put a date on it that reflected a day when she was still alive so they could cash the check) then I am entitled to my share. However,
if the check is valid then I can't argue for my share. I don't trust the brothers to hand over my share after a year and I am told that I only have a year to make a claim for my share or else lose it. I can't afford the expense of a lawyer if I don't have any share coming to me in the first place. That's why I was hoping there was a way to force probate without my having to hire a lawyer or file to be administrator. (I explained in my other thread "Non-probated estate questions" that I was having trouble getting bonded due to the mess of the estate and I would have to put up my own collateral which I don't want to do if I don't have anything coming to me to start with.)
So now back to the main question....is there any way to take the brothers to court to force the estate into probate that does not involve me either hiring a lawyer or me becoming administrator?
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Ask the brother who claims the money is in a trust fund to prove what he says by showing you a recent bank statement. It all sounds like a big scheme for both of them to steal this money without having to account to anyone for it. But if you stand up for your rights you can win your share by fighting back!
You need to be asking a business law attorney or a bank in the area (a different one from where your mother had her account) if it is legal for a check to be cashed where someone else (the payee) has filled in the date (I would guess that it doesn't make much difference and it probably is acceptable). You need to get your hands on a copy of that check but there is no way for you to do so without becoming administrator. The brothers have told so many lies and conflicting stories that you won't know the truth until you actually look at the check and see if they forged her signature or not.
They had no business cashing the check AFTER she died, and the bank should not have allowed them to cash it (although the bank had no way of knowing that she was dead) since the power of attorney expired on the same day that she died (but the brothers may or may not have known this fact). If the bank had known that she was dead, the bank should have frozen the account and should have told the brothers that only the executor could get this money. So you would achieve a strategic advantage by filing to become administrator (or hiring an attorney to do so), because what they have done could be classified as theft or theft from an estate, and you need to discuss with your attorney the strategy for getting them to return this money--whether you would be able to threaten them with going to the police and filing charges against them unless they return the money so that it can be probated.
DANDY DON IN OKLAHOMA ([email protected])
You need to be asking a business law attorney or a bank in the area (a different one from where your mother had her account) if it is legal for a check to be cashed where someone else (the payee) has filled in the date (I would guess that it doesn't make much difference and it probably is acceptable). You need to get your hands on a copy of that check but there is no way for you to do so without becoming administrator. The brothers have told so many lies and conflicting stories that you won't know the truth until you actually look at the check and see if they forged her signature or not.
They had no business cashing the check AFTER she died, and the bank should not have allowed them to cash it (although the bank had no way of knowing that she was dead) since the power of attorney expired on the same day that she died (but the brothers may or may not have known this fact). If the bank had known that she was dead, the bank should have frozen the account and should have told the brothers that only the executor could get this money. So you would achieve a strategic advantage by filing to become administrator (or hiring an attorney to do so), because what they have done could be classified as theft or theft from an estate, and you need to discuss with your attorney the strategy for getting them to return this money--whether you would be able to threaten them with going to the police and filing charges against them unless they return the money so that it can be probated.
DANDY DON IN OKLAHOMA ([email protected])
........
Thanks, DD....I have tried to get my brothers to show me papers, but they won't do it. They say, NO, and if I keep pushing they ignore my calls and emails. In my mind there is definitely some 'foul play' going on.
I spoke with a lawyer and he said the only way to get them to return the money (also the other assets mom left behind) was to file to become Administrator. I tried to do that, however, I could not get a bonding insurance company to back me because they considered it too risky since the estate is in such a mess of secrecy they fear they'd end up paying out. Too much baggage, they say.
I guess I'm going to have to look into criminal charges of theft via the sherrif.
Thanks, DD....I have tried to get my brothers to show me papers, but they won't do it. They say, NO, and if I keep pushing they ignore my calls and emails. In my mind there is definitely some 'foul play' going on.
I spoke with a lawyer and he said the only way to get them to return the money (also the other assets mom left behind) was to file to become Administrator. I tried to do that, however, I could not get a bonding insurance company to back me because they considered it too risky since the estate is in such a mess of secrecy they fear they'd end up paying out. Too much baggage, they say.
I guess I'm going to have to look into criminal charges of theft via the sherrif.
I'd be surprised if the sheriff decides to pursue charges, since most small towns don't know enough about white collar crime or don't want to pursue it. If he won't pursue it, you need to hire a probate attorney to get this estate opened up and the attorney is not likely to have the same problem being bonded as you were.
The administrator/executor will also need to check with the bank where the account was held to find out if anyone was named beneficiary or joint account co-owner. If there was, then the money can not be returned to probate since it passes directly to the beneficiary or account co-owner at the exact moment the death occurred.
DANDY DON IN OKLAHOMA ([email protected])
The administrator/executor will also need to check with the bank where the account was held to find out if anyone was named beneficiary or joint account co-owner. If there was, then the money can not be returned to probate since it passes directly to the beneficiary or account co-owner at the exact moment the death occurred.
DANDY DON IN OKLAHOMA ([email protected])
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