Complicated Situation

What is the name of your state? California

Let's see if I can be as concise as possible:

Alcoholic Father met a woman who was also an alcoholic and he moved her into his home during the past few years. Father became gravely ill with Cirrhossis and his continued abuse along with the excessive drinking of his girlfriend alienated most of his sons. Father had a Living Will which created an educational trust account for his grandchildren's college education.

Because of the alienation between Father and Sons, Father named his nephew to be the Trustee/Executor of his estate. Six weeks before the Father died, he broke down and married his alcoholic girlfriend. This was 5 months ago.

Executor of the estate resigned a month ago without accomplishing a single task. New wife in house has been selling off items listed in the Trust and giving other items away to her own family members. New wife has also not been making mortgage payments on family home (family has owned this home for 35 years), and has made statements indicating her intent to have the bank foreclose on home to prevent sons from getting this home (deeded to the Father's Living Trust - so she can't get it).

Several weeks after the Father died, the Sons realized that the Executor was doing nothing, and they had been completely banned from approaching their family home. They hired a lawyer who spent weeks getting a copy of our Father's Living Trust, then more weeks wrangling with the Executor over his intent (resigning/not resigning). Finally, the Heir's Lawyer has contacted a Third Party Estate Management Firm to take over the functions of the original Trustee/Executor and a petition is being filed - 4 and a half months after the Death of the Father.

Question: What else can be done? How liable is the Executor/Trustee who did nothing? The new wife is hardly mentioned in the Living Trust - How much is she liable for if the heirs gain possession of the Father's house only to find it gutted? The sons have had their lawyer (specialty is Estate/Probate) in place for 3 months now and the most that has been accomplished is very little (obtain copies of Living Trust, forced Executor to state his intent to resign) - What is an average length of time these processes should have taken?

Just trying to get a baseline on the level of service seen so far from the Sons' lawyers. Any information or guidance would be greatly appreciated.

Is there a will and a trust being handled for this estate?

Since being an executor is a somewhat overwhelming task that many people learn by doing, you can not fault the executor for "not doing anything" since they may not have known what to do or may have found it too time consuming. He was wise to ask for help with the estate management company. Also making things more difficult is the fact that the wife is probably not cooperating in giving information about the assets, etc.

You need to be asking the estate management firm a few questions:

(1) Do you have any attorneys on staff who have experience specifically dealing with trusts?

(2) What is the wife going to be getting out of this trust?

(3) Is there enough money in either the trust or in the probate assets to be able to take care of the past due mortgage payments? If so, then this needs to be done as soon as possible to avoid foreclosure.

(4) Was the trust written before or after he married this lady? If it was written before he married her, then the fact that he later married her could mean that as a wife she might be entitled by law to more than what the trust specifically states.

(5) Have you begun finding out the status of the man's assets (bank accounts, CD's, stocks, etc.)--the trustee/executor has the legal authority to start claiming things, but wife has probably already (properly or improperly) gotten her hands on some of it. A professional will know what to do to straighten this mess out.

If this estate management firm can not answer these questions, then you should look to another trust attorney for representation.

DANDY DON IN OKLAHOMA ([email protected])

Thanks for the Reply Don! Here are the answers to your questions:

1. We (the sons) did hire a lawyer who specialized in Estate and Probate Law. When our father died, the Executor told us all to lay low and not cause any type of scene. He assured us that everything would be taken care of. After a couple of months, though, we realized that he was doing nothing while our Father's newly wedded/widowed wife was putting as much of his property into her name. As soon as we got a Lawyer, the Executor accused us of not trusting him and then began ignoring us, and it then took another couple of months to get him to admit his desire to resign via his own lawyer.

2. The wife is listed in the Trust, but the trust was written before she married our father. In the current Trust, she has the option of purchasing the vehicle she drives which our father co-signed for. She also had the option of staying in the house for 60-90 days until she could make other arrangements (its been about 5 months now since our Father died). She is now claiming that everything is hers and she has sold some of his property (his personal vehicles, etc...).

3. The mortgage is going past due. Our father's checking accounts have been wiped out (either by the Executor who did nothing or by our "step-mother" of 6-weeks). The wife remains in the house and is stating to many people that it is her intent to stay there until the house is foreclosed to prevent the father's sons from getting the home (house is deeded to our Father's Living Trust Fund).

4. We do understand that she may be entitled for more than what the trust states the wife is entitled to. It is our understanding under California law that a wife in contention with multiple children can expect to be awarded about a third of everything that can be probated (i.e., not covered by the Trust).

5. After obtaining our own legal counsel, our lawyer set about getting an official letter of resignation from our Father's Executor (just got that the early part of November). We are now in the process of filing a petition to name a new Executor. We sought out a third party Estate Management Firm, rather than attempt to place one of us sons into this position. This seemed like the quickest way to get a new Executor while leaving the wife with very little to object to.

So, we have been in contact with our fathers mortgage lenders. We have explained that it is the intent of this woman to sit in that house until the bank forecloses on it, but the banks have only indicated to us that they only can deal with the Executor.

How, while waiting for the legal process to complete, can we ensure that our father's house doesn't get foreclosed on?

...and, how can we get this horrible woman out of our family home of 35 years? She's like the guest who'd never leave!

Frustrated in California

Are there any probate/trust attorneys in this estate management firm and what have they told you about what to expect? Aren't they able to give you some type of time estimate as to how long it will take for them to be named official executor (it should normallly take a small amount of time) but can they at least tell you when the next hearing about it is? Why aren't you getting answers to your questions from this "firm"? All this delay could have been avoided if you all had hired a trust attorney or probate attorney to be official executor.

You also have not mentioned whether this estate management firm is going to be named TRUSTEE and executor or just executor only with no connection to the trust. Who IS the trustee going to be?

You need to be prepared to get a loan to equal the amount of past due mortgage payments so that when the executor is officially named he/she will have instant access to the money and not have to wait to get access to the estate funds, but a good attorney should be able to tell the executor how to get expedited access to the monies to pay these type of outstanding bills.

Bank will probably not be willing to let payments go more than a year past due but they will have to give you at least 30 days notice before foreclosure hearing is scheduled for court, so let's hope that the court names an official executor within the next 30 days.

DANDY DON IN OKLAHOMA ([email protected])

Trustee will have to review the terms of the trust to find out exactly whether the wife has rights to continue living in the home or trustee will have to consult an eviction attorney to get her evicted legally