Probate Court/Executor

[gccruiser]

What is the name of your state (only U.S. law)? NC
My father's Will (NY State) is finally going to probate court after 7 and 1/2 years of my brother, who was the Executor, and never had the Will probated, and relinquished his duties as Executor; subsequently making me Executor, according to the Will. It has been a long and frustrating process, but I am wondering how it will turn out in probate court since, according to my father's Will, written in 1997, bequeathed his house to me, but my brother had our father sign the house over to him, Deed and all, in 2003; a year before he died. How will that play out in the probate court? Who will get the house?
Thank you.

 

[anteater]

How will that play out in the probate court? Who will get the house?

Your brother owned the house at father's death. It was not your father's asset any longer and, therefore, the will is not effective with regard to this house.

Unless you are going to contend that your father was not legally competent to make the asset transfer and/or your brother exercised undue influence upon your father.

That could make for a long, bloody, and expensive fight.

 

[gccruiser]

Ok, thank you. I wasn't sure how that would work out. So my Father's Will is over-ridden since he signed the house over to my brother? What about another part of his Will where he bequeathed $1000 to each of his 3 grandson's, and my brother, being Executor at the time of our father's death in 2004, and never had the Will probated, never saw to it that the 3 grandson's received their $1000 each. Is there any chance for them to get their money once the Will is probated? Thank you.

 

[LdiJ]

Ok, thank you. I wasn't sure how that would work out. So my Father's Will is over-ridden since he signed the house over to my brother? What about another part of his Will where he bequeathed $1000 to each of his 3 grandson's, and my brother, being Executor at the time of our father's death in 2004, and never had the Will probated, never saw to it that the 3 grandson's received their $1000 each. Is there any chance for them to get their money once the Will is probated? Thank you.

Is there any money anywhere to get? Are there any other assets available to be sold?

 

[gccruiser]

Is there any money anywhere to get? Are there any other assets available to be sold?

Thank you for your response. I don't know if there is any money now. I'm sure it was when my Father died in June '04, but my brother, who was the Executor of the Will, didn't have the Will probated, and who knows what he's done with the money. (He was also POA before my Father died). My Father's sister, who is now 77, is the one who initiated the Will be probated because she knew she was in the Will, and she and I have paid the fee for the Will to go to probate court ($625); which will probably be within the next ten days, or so, I guess; depending on when her attorney does whatever she needs to do to get the Will to probate court. In the meantime, my brother has relinquished his responsibilities as Executor of the Will, and according to the Will if he does that then I become Executor, and I guess there is some type of paper work, or form I'm supposed to sign? I don't know. I haven't heard from my Aunt's attorney about that, and my Aunt doesn't know either. The attorney just told my Aunt she's going to send the Will to probate court.

 

[anteater]

Just a couple points...

There is no such thing as "Executor of the Will." There is an executor of a probate estate when the court admits the will to probate and appoints the executor to administer the estate, issuing what are called letters testamentary or letters of administration to the appointed executor.

If the will was not admitted and your brother appointed by the court, your brother was only nominated in the will. He had no legal authority to act on behalf of the estate.

After 7 years, and given what you have said about the house and brother having power of attorney, you realize that you are taking on an unenviable task, right?

 

[gccruiser]

Just a couple points...

There is no such thing as "Executor of the Will." There is an executor of a probate estate when the court admits the will to probate and appoints the executor to administer the estate, issuing what are called letters testamentary or letters of administration to the appointed executor.

If the will was not admitted and your brother appointed by the court, your brother was only nominated in the will. He had no legal authority to act on behalf of the estate.

After 7 years, and given what you have said about the house and brother having power of attorney, you realize that you are taking on an unenviable task, right?

Ok, so let me understand this...once the attorney files the Will to probate court that's when it's decided as to who will be Executor? I did call her and tell her that my brother told me he doesn't want to be Executor, as our father named him in his Will, and, if he doesn't do it, then I become Executor, as stated in the Will.
The Will is going to probate court very soon; according to what my Aunt said since we've both paid the probate court fee of $625. I haven't heard from the attorney about who will be Executor, and who won't be Executor. My Aunt just told me the attorney said the Will is ready to go to probate court now that she has the $625.
You used the word unenviable. Well, maybe it will be a headache since I probably won't get the house, and my two sons and a nephew of mine probably won't get the $1000 each bequeathed them in the Will. However, I hope my Aunt, who is my father's sister, will get the share, or proxy, of the house that they grew up in as children that he left for her in his Will. If nothing else comes out of this Will except for my Aunt getting her share of that house I'll be satisfied. She's 77 years old, and she deserves everything she can get out of life at this point.

 

[anteater]

I get the feeling that you are jumping into (or being roped into) something that you don't understand very well. I would suggest that you do an internet search with terms such as: new york probate process

Here is one hit that seems to have a good intro:

http://www.nycprobate.com/802.html

However, I hope my Aunt, who is my father's sister, will get the share, or proxy, of the house that they grew up in as children that he left for her in his Will.

Are we talking about the house that your father transferred to your brother?

If so, this is what I have been talking about with regard to an "unenviable task." You are going to have to get that transaction invalidated first for the house to become an asset of the probate estate. And who knows whatever other self-benefitting transactions your brother pulled off as your father's agent under the power of attorney.

I am getting the feeling that your brother is walking away from the will and nomination as executor willingly because he knows that there aren't any assets subject to probate - he's got them all. Anybody trying to get them back is going to have one helluva time.

Has any of this been discussed with this attorney?

 

[gccruiser]

I get the feeling that you are jumping into (or being roped into) something that you don't understand very well. I would suggest that you do an internet search with terms such as: new york probate process

Here is one hit that seems to have a good intro:

Guide for Estate Executors and Administrators - New York



Are we talking about the house that your father transferred to your brother?

If so, this is what I have been talking about with regard to an "unenviable task." You are going to have to get that transaction invalidated first for the house to become an asset of the probate estate. And who knows whatever other self-benefitting transactions your brother pulled off as your father's agent under the power of attorney.

I am getting the feeling that your brother is walking away from the will and nomination as executor willingly because he knows that there aren't any assets subject to probate - he's got them all. Anybody trying to get them back is going to have one helluva time.

Has any of this been discussed with this attorney?

I have spoken with the attorney several times before about getting this Will probated. She is trying to get the Will probated because my brother, who was, according to the Will, the Executor, never had the Will probated, and my Aunt, my Father's sister, is the one who got the ball rolling, retained the attorney, and just wants her part of what her brother, my Father, left her in his Will.
As for the house, that was bequeathed me in the Will of 1997, yet subsequently signed over to my brother by our father in 2003, a year before he died, I may not actually get that from the Will. I guess when my Father signed his house over to my brother, he forgot he left me the house, and signed it over to him, and both their names were on the Deed to the house, and once my Father died, now only my brother's name is on the Deed. As for the $1000 my father bequeathed his 3 grandson's, well, maybe there is no $1000 to give to them at this time. Maybe it was at the time of his death. However, my brother didn't give it to them, nor did he ever have the Will probated so they could get their $1000 each. That's why my Aunt wants this Will probated. She knows her brother, my Father, left her something in his Will, and that is his share of their childhood home. That's what she wants.
If the house is in fact my brother's, and I don't get it, oh well. I have a house anyway here in NC. If my 2 sons and nephew don't get their $1000 each, then so be it. What can anyone do about it? I certainly can't make my brother give them their money if there's no money to give them, and I'm certainly not going to NY to make my brother give me the house that he and my Mother, who's 80, live in.
If my Aunt gets her share that was Willed to her by her brother, then fine. She'll be happy, and will have her resolve. What will all this cost me? I didn't retain the attorney. My Aunt did. I haven't signed any papers, or forms making me Executor. I just told the attorney my brother said he doesn't want to be Executor anymore, and according to the Will, if he fails, or refuses to qualify as Executor, and it has been 7 and a half years, then it's passed on to me. What consequences, if any, am I facing here? What am I getting roped in to? Legal fees? Attorney fees? Does the Executor have to pay the attorney even though he didn't retain her? I haven't signed anything.
Thank you.

 

[anteater]

Attorney fees are a cost of administering the estate and are generally paid from estate assets.

I'll try to put this in a nutshell:

• You really don't know for certain what assets are part of your father's probate estate.
• Your father transferred his house that was devised to you in father's will to your brother. This may or may not have been legitimate.
• Your brother held a power of attorney for your father. Your brother's indifference to opening probate indicates to me that your brother probably swiped most anything of value that he could get his hands on before your father passed away.
• Nevertheless, you are not inclined to try to hold brother's feet to the fire to try recover any assets for the estate.
• Your father apparently holds an interest in another house.
• The point of opening probate is to get that interest to your aunt.
• You live in North Carolina while probate will take place in NY. That means that you are either going to spend some time in NY or just hand it all off to an attorney.

Why not just waive your right to serve as executor and let your aunt petition the court for appointment?

 

[gccruiser]

Attorney fees are a cost of administering the estate and are generally paid from estate assets.

I'll try to put this in a nutshell:

• You really know don't what assets are part of your father's estate.
• Your father transferred his house that was devised to you in father's will to your brother. This may or may not have been legitimate.
• Your brother held a power of attorney for your father. Your brother's indifference to opening probate indicates to me that your brother probably swiped most anything of value that he could get his hands on before your father passed away.
• Nevertheless, you are not inclined to try to hold brother's feet to the fire to try recover any assets for the estate.
• Your father apparently holds an interest in another house.
• The point of opening probate is to get that interest to your aunt.
• You live in North Carolina while probate will take place in NY. That means that you are either going to spend some time in NY or just hand it all off to an attorney.

Why not just waive your right to serve as executor and let your aunt petition the court for appointment?

The only interest my Aunt has is her part of the other house that my father left for her in his Will. She does not want to get all tangled up in the rest of my father's Will that left me his house; but my father signed the house over to my brother, or whereas my father left each of his 3 grandson's $1000; of which they have yet to receive.
At this point my main concern is for my Aunt to get what my father, her brother, left for her in his Will, and that's just a share, or proxy, of the house that they grew up in together; of which she resides in. She and I together, paid half each to get the Will to probate court, and the attorney she retained will petition the probate court to appoint me Executor, and I guess I'll get some type of letter from the probate court stating that I am the Executor, and I'll just go from there....????wherever that is in settling my father's Will.
That uncooperative brother of mine never made any effort to get our father's Will probated, and Dad died in 2004. My brother never made any effort to give the grandson's their $1000 each. He never even told me our father left his house to me. I didn't find that out until I received his Will in the mail in June 2011 from the attorney my Aunt retained to get this Will probated. My brother's name has been on the Deed to my father's house since 2003; a year before my father died when he signed the house over to him, and I do have a copy of that Deed. Again, I thank you for your time to hear me out.

 

[anteater]

OK, I get the gist of the situation. I simply get the sense that you don't really understand much about probate and are letting others control things without asking much in the way of questions.

Let me pose a hypothetical...

You are appointed by the court. You find out that the only probate asset in your father's estate is the interest in the childhood home. You have this attorney do all the nitty-gritty probate work and only sign whatever documents need your signature.

The attorney presents a bill for $5,000. There are no funds in the probate estate to pay the bill since the only asset was that interest in the childhood home.

Who is going to pay the attorney? Your aunt?

 

[gccruiser]

OK, I get the gist of the situation. I simply get the sense that you don't really understand much about probate and are letting others control things without asking much in the way of questions.

Let me pose a hypothetical...

You are appointed by the court. You find out that the only probate asset in your father's estate is the interest in the childhood home. You have this attorney do all the nitty-gritty probate work and only sign whatever documents need your signature.

The attorney presents a bill for $5,000. There are no funds in the probate estate to pay the bill since the only asset was that interest in the childhood home.

Who is going to pay the attorney? Your aunt?

You are right. I don't know much about probate at all. I just know my Aunt has retained an attorney to get this Will probated. I don't know what arrangements she and the attorney have made for the attorney to get paid. I haven't signed any documents throughout this entire procedure linking me to pay any court or attorney fees. The only form I did sign, along with everyone else mentioned in the Will, was a WAIVER TO PROCESS:CONSENT TO PROBATE. It consented that the Will be admitted to probate. I then sent half the funds to the attorney, and my Aunt has paid the other half for the Will to finally go to probate court.
So, I guess I need to ask this attorney that if in fact I am petitioned, and named Executor of this Will, does that employ me to pay her attorney fees, and my Aunt, who originally retained her, is off the hook; so to speak?

 

[anteater]

Most definitely, you should be asking those questions.

 

[gccruiser]

Most definitely, you should be asking those questions.

Thank you. I will. Would I have to sign some kind of form, or paper work to become the Executor of this Will when this attorney petitions the court for me to be the Executor? Or, do I automatically become the Executor because I, in fact, am supposed to be the Executor if my brother, who was originally named Executor, in my Father's Will, has failed, or refused to qualify; of which he has. (I had a conversation with him recently, and he said he doesn't want to be Executor {any longer}, and that I can be Executor).
Now all this has me thinking...am I really being roped into something by my brother, Aunt, and her attorney that I won't be able to get myself out of without it costing me money from my own personal bank accounts???? mmmmmmm. Makes me wonder what's really going on here. Am I being used just to get this Will probated only to benefit my Aunt; who is the only person to get anything out of it actually, then I'm stuck with the bill.