Problem with Estate Claim

[SoiratNov]

What is the name of your state? Territory of Guam


My husband & his siblings sued another brother after their parents' death for illegal taking of real estate parcel (possibly fraud and self dealing). Just before case was to go to trial, they won a court approved negotiated settlement for the return of the property to the estate.
Wayward brother died and bad lawyering so far has not accomplished return of property.
One week before we arrived on the island to settle with the children of the deceased brother, their Altzheimer afflicted mother had:
1. taken posession of her husband's separate property by administrative filing, without probate (Value of property is approx 4 million.)
2. "gifted" the property to her 5 childen.

The children had filed acceptance of gift, formed LLC, placed property into newly formed LLC

All the above action was taken a week before we arrived on Guam to settle. When we met with the daughter of the deceased brother she acted like they had taken no action on the property, pretended they were in the process of opening probate, did not divulge their actions. We did not volunteer our knowledge of their actions. Their father died intestate. Property had been held by him as separate property, in his name only. All decisive court documents were available at court and also filed with Land Management. Several lis pendens and the court approved settlement were also registered, easily available to any attorney. Do we also have a claim against their attorney ?

How can we get property back, now in an LLC, albeit perhaps fraudulently?

We turned this over to an attorney August last year with a hefty retainer, he has taken no action. We are leaving in a few weeks for Guam to look into this. Any suggestions as to how we should proceed? What legal options are open to my husband and his siblings? Would they now have to take legal actions against the wife and the children or does their claim from the previous court action continue even after the death of the brother?

(Sorry, on state selection I could not find the Territory of Guam, although Territory of Puerto Rico is listed). Guam follows State of California Law mostly.

 

[Dandy Don]

Exactly what property are you talking about, personal property or the real estate parcel? What is it's value?

 

[SoiratNov]

The property to be returned is an undeveloped real estate parcel, zoned industrial, adjacent to the Guam International Airport, valued at about 3.5 to 4 Million dollars.

 

[Dandy Don]

What was your original attorney's explanation for not acting on this? Sounds like it's beyond his area of expertise. IF Guam has a state bar association you need to file a complaint with them against him (and warn him in advance that you are going to do so, if he doesn't refund your retainer).

Instead of paying a retainer upfront, interview with 5-7 different attorneys before you pick the most qualified one to work on the specific area of expertise you need. Each attorney should be able to give you a brief explanation of the strategy they are going to use and cite specific case law or cases similar to yours that they have successfully won in the past. You need an attorney who has experience in litigating real estate transactions as well as being familiar with probate law, or a probate attorney who has access to a real estate attorney and business law attorney whom he can consult for advice on whether the land transactions and business transactions that have been done are legal or not.

It's hard to know exactly what you mean when you say the property has been taken by "administrative filing". Do you mean that the mother went to probate court and was declared administrator of the estate?

This case is too complex to be solved without anyone actually looking at all of the documents involved, which we can't do on this message board.

I somehow have a good feeling that this is going to work out in your favor after all the details have been examined!!

Also your attorney will need to look at the detalis of the negotiated settlement to see if there is any provision for which parties' names need to be added, if any, to the land title, and the main thing to do now is to check at probate court to see if ANYONE has filed to become administrator of this estate.

DANDY DON IN OKLAHOMA ([email protected])

 

[Dandy Don]

Is your husband one of this lady's biological children or not?

This gift after being examined may not hold up legally. If your husband's father's name was owner of the property, then she should have gone through official probate to get title cleared before she appropriated the property. So your attorney's next step will be to get this property put through probate so that names of the legal heirs can be put on title, and then the sale/gift can be looked at for propriety. Gift will probably have to be reversed or cancelled, and then the legal heirs can decide whether they want to sell it or force a sale or let the LLC or some other buyer purchase it from them.

DANDY DON IN OKLAHOMA ([email protected])

 

[SoiratNov]

Thanks for your excellent suggestions; Here are some more points you asked me to clarify:

My husband's brother, during their parents' old age, took care of renting the property out and distribute the rental money to his parents and to all his siblings, because that was the wish of the parents. During the time he had the PoA to do that, he appropriated the property to himself with a quitclaim signed by my husband's father. He had told my father-in-law, that the property is not rented anymore, and he needed his signature to allow him to rent it again. ( as it turned out in discovery, the property had always been rented), and there were witnesses as to what my father-in-law's reaction was when he found out, shortly before he died, what his son had done to him.

The case became a side issue litigation to my in-laws' probate. Summary judgment was in our favor and specified that the case had to go to trial since there was a chance the appropriation was fraudulent and also had broken fiduciary rules. That's when my husband's brother asked to negotiate a settlement. Our probate lawyer(another previous lawyer) who dealt with this special side case, was not very good in negotiating this settlement. He did not do any significant research on access easements, etc. and negotiated the wrong easement away. The final negotiated settlement specified that the brother can keep 8000 sqm of the total of 20,000 sqm for himself as his own inheritance, but is to give back the remaining 12,000 sqm to the estate of the parents. It also states that he is to divide property and make a map, which he did. There was no time-line included for an actual quitclaim return. However, there was a clause written in that heirs and successors are bound by this agreement. The brother has used his 8000 sqm since the division.

The lawyers had written into the agreement the use of an easement. which was not the legal easement, and that dragged out the return. The brother was very vindictive and mad because his siblings had sued him, that he used the easement that was granted in error as a reason to not return - and then he died.

When we visited him before he died, my husband (in my presence) reminded him that there is still the outstanding return of the property, and asked him to whom of his children he should turn to get the matter resolved and my brother-in-law designated one of his sons. So he must have had the intention to make good on his death bed.

My husband and his siblings are perfectly ok to exchange the wrong easement with the legal easement. Although my husband's brother died two years ago, the whole thing was in limbo for a year, partly in order to be sensitive to the family during their year of mourning. When that was over, our lawyer did not move on this as already reported.

The lady who filed the appropriation of the property is my husband's sister-in-law, the brother's wife. She has Altzheimer's desease and would not be able to even grasp the significance of what we believe, her children made her do. But she was obviously still able to sign her name. She did not open a probate to transfer the property, she just filed a death certificate of her husband, saying that 60 days had elapsed by law, and since noone had come forward to make a claim, that she now claims the property "administratively," as her own. However, there has never been an announcement made in the newspapers announcing the opening of her husband's probate.

When we got back to Guam to finally settle with the designated son of my husband's brother, the son declined to meet with us, stating that because of his own legal problems, he would not handle his father's estate. He had handed it over to his sister.

When we met with his sister, my husband's niece (daughter of his deceased brother) we were already aware as to what she, and her siblings and their mother, had done with the property. I had done the research as soon as we arrived on Guam. At that time, no probate had been filed for their father's estate. During our meeting, our niece acted like she knew nothing of the whole previous litigation and said that she intends to open the probate. But knowing that she transferred all their father's properties into the LLC, why would she? She feels safe. In fact, I think they planned this whole thing, knowing that we are coming.

I asked her three times during our meeting, whether there were any transactions or determinations made on this property since her father's death. She said no, and she is planning to file probate. My sister-in-law, who is the administrator of my husband's parents' probate, is checking the papers every day for probate announcement, nothing so far.

I do not know whether our attorney could open a probate for the brother's estate, isnt' that the responsibility of the family? Or can any claimant open a probate for somebody who owes them?

Let me just mention why I am the one (other side of family!) who is inquiring and taking interest in the case. My sister-in-law, who is the administrator of the parent's probate, after she had suffered a heart attack, had asked me in 1992 to help her finish the probate and all connected litigations (with neighbors' trespassing, Government claims, etc.) We filed the parents' probate in 1984 and we are not finished!!! I am only involved since 1992. I have been spending long stretches of time on Guam every year since then to advance this probate and other litigations and help the family along to come to closure with this. I do all of the research and letter writing for her, which brings me real close to the case. I am also interested for the sake of my husband who is 79 years old, and for the sake of my children, who all have jobs and could never spend the time to sort this out, to bring this senseless family problem to an end.

The heirs want the property returned, to be probated and distributed with other assets via the probate. They don't want to sell to anyone. I am sure the law must provide for these transactions to be voided, if they were not made in accordance with the law or were made with the intent to defraud.

I also want to get a feeling as to what to do with this lawyer we have had now for some years. He was our litigation lawyer in several other cases which he won for us. But he is not moving on this one. To bring in a new lawyer and get him or her up to speed on all the intricacies of the case, it just feels like we have to start at the beginning again, after spending almost 200,000 dollars on these legal problems. Short of threatening him with ethics violation, how can we motivate this lawyer to finish our case. He was practicing by himself when we hired him. Now he has 2 other lawyers in his legal corporation, do you think we should encourage him to give the case to one of his partners, if he doesn't feel qualified. But then, of course, we don't know the qualifications of his partners either.

Sorry this is so long, but as you already said, the case is too complicated to find solutions here, I just wanted to clarify and get some suggestions.

 

[Dandy Don]

Under no circumstances should you be using ANYONE affiliated with your former lawyer. Maybe he is tired of the complexity. Interview with 3-5 more probate lawyers and explain what you want to accomplish and prove that they have a history of that type of litigation and contact with easment attorneys before you hire them.

Your side will have the tactical advantage of achieving what you want to accomplish IF you can afford to get probate opened up. Alzheimer's victim had no legal right to sign any document because of her diminished mental competency.