• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Estate closed with outstanding issues

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Jack Doe

Junior Member
I'm in Illinois ... this is a little long, but covers the info I hope ... :)

My Uncle's estate closed seven months ago. The POA/executor secretly became an heir in the last year of his life while my Uncle was on narcotics, and alone in a nursing home. The executor had changed the estate lawyer from my uncle's lawyer of 30 years, to a friend of his. I had been caring for my uncle mostly for a few years, before he was moved to the nursing home for his last year and a half. But the will was not contested, as I did not know of any claim I had.

My Mother had a share and we purchased part of my Uncle's farm. The executor purchased a part, but got no written permissions from the other heirs, and I believe gave himself a discount. He is also a neighbor, and our access runs through part of his property. Our purchase agreement had our access written in, but they claimed the neighbor was only acting as executor when he signed, so it was less than legit. The estate lawyer actually FAXed a copy that had my access rights removed, but it was verified with the executor and witnesses that my access and rights to a spring were in the real agreement. (this seemed a deliberate fraud that was overlooked)

At a meeting with the surveyor, our access was to be surveyed in, as discussed at the meeting, after viewing the executor's copy of my agreement During that meeting, the executor/neighbor and his wife were present, and they as neighbors agreed to our surveyed access. But the executor/neighbor/buyer/heir then apparently removed that after our meeting, so our access did not appear on the plat, except as "existing lane". (does that verbal agreement with witnesses hold any water?)

So our contract was broken on this and another issue of water rights, and three parcels were sold to other buyers in breach of my agreement. Disallowing our surveyed access improved the executors neighboring property, so he had a conflict of interest.

The estate's lawyer's response to my disagreement of the neighbor/executor/heir negotiating his own deal was to allow the executor to purchase his parcel, also in breach of our agreement. We did close, as there was another buyer and I felt compelled to keep the family farm. My local lawyer was incommunicado. That was perhaps a mistake, but it did keep them from selling to another.

Before the estate closing I got another lawyer who was able to get the estate lawyer and executor to agree to our access, as it should have been done since it was agreed to in writing, but was removed in conflict of interest by the executor. But before that was settled, the estate lawyer moved to close the estate. We got the date extended a week, during which time the agreement for access was signed, but one small but necessary parcel left off.

My lawyer met with the estate lawyer the day before the final hearing, and assured me the estate lawyer had agreed to add that parcel. He assured me it would be added without going back to them ... but it was not filed till I reminded him recently, and then without the extra parcel. So I could still be blocked on this one little piece of our 1/2 mile lane. Since it has been our lane for 100 plus years, it seems we could get it if we had to, by making a claim for a prescriptive easement, but it should have been resolved before closing.

First I feel my lawyer did not protect my interests. Second I feel the estate lawyer used the access issue as leverage to keep us from the final hearing. My lawyer actually seemed complicit ... they share the same small building. There were several other issues that were "fishy". But without this last minute agreement, we could be blocked till the issue was resolved in court. I care for my Mother on the farm, so that was not acceptable.

Is there a chance I can get the estate "reopened" since the estate lawyer attempted and did close without this large issue being resolved? It was either a mistake or fraud, so could be re-examined? Or is the only way now, to file a suit? It seems this is a claim perhaps, that was not dismissed, but was not satisfied, though the ground is actually separate from the estate, it was part of the purchase agreement agreed to by the neighbor/executor.

Or is the verbal agreement by this lawyer binding? It seems they took many things from me with only a verbal agreement.

The hard evidence (I guess) is the access agreement signed after the estate lawyer moved to close. The agreement for access was from the executor, but he was acting as the neighbor on that issue. The left out third parcel could be called a mistake, though it appeared very deliberate as I spelled out that I needed that parcel. In any case the move to close was before this major "procedure" or "administrative duty" was completed.

Going back to my lawyer just now, I insisted on adding what he had promised me, but now he did not comply. I'm not sure where to turn next. We have frontage in another direction, but it would require 1/2 mile of new road, and put us almost a mile further from town. This has been the executor's intent, it would seem. Both the executor and estate lawyer are about 81 years old.
 


tranquility

Senior Member
This is known as hiding the ball. I'm not sure what your complaint is from reading the post once and re-reading a couple of sections, so know there may be many things which I simply missed. But, I'm not sure why there is any reason to re-open the estate. The estate business is appropriately closed. Deal with the new owners.

If you allege the executor breached his *fiduciary* duty to you, you can sue him for damages. This is not a re-opening of the estate. If you have knowledge of facts not known or could have been known while the estate was open which point to a fraud in the will, you may be able to re-open things, but often not. The tortfeasor is then the one to sue.
 

Jack Doe

Junior Member
This is known as hiding the ball. I'm not sure what your complaint is from reading the post once and re-reading a couple of sections, so know there may be many things which I simply missed. But, I'm not sure why there is any reason to re-open the estate. The estate business is appropriately closed. Deal with the new owners.

If you allege the executor breached his *fiduciary* duty to you, you can sue him for damages. This is not a re-opening of the estate. If you have knowledge of facts not known or could have been known while the estate was open which point to a fraud in the will, you may be able to re-open things, but often not. The tortfeasor is then the one to sue.
OK, thanks ... I'm not clear exactly where to put the ball, so I guess that is why it is hidden.

it seemed the estate lawyer should not have allowed the executor to make his own deal without written permission from the other heirs. Also, there was a breach of our contract for the benefit of the executor. But you are saying just sue the executor, since he is the seller. But the estate lawyer handled most of the actual selling, the executor mostly just signed. Still the same i guess.

The estate lawyer handled the problem of the executor not granting our access, which arose as a result of the executor having this conflict.. This seemed still an estate issue, since it was an action by the executor in conflict of interest with his purchase from the estate. The executor used his power to not grant access after our meeting where they agreed to our access.

It seemed improper then for the estate lawyer to move to final hearing, when this executor action had not been resolved. But you seem to say I would sue the executor directly, since he failed to perform as executor for his benefit as buyer or neighbor. But fixing the conflict was done by the estate lawyer, and that fix was promised but not delivered as the final hearing was held. It seemed used as leverage, then not granted.

I'd rather avoid the expense of suing, so reopening the estate on the grounds it was closed improperly seemed better. I certainly did feel my getting the full easement was contingent on not being at the hearing to contest the discount the exec' gave himself, for example, but now my own lawyer did not acquire what was promised. :mad:
 

tranquility

Senior Member
it seemed the estate lawyer should not have allowed the executor to make his own deal without written permission from the other heirs.
The executor does not need the written permission of the heirs. Any malpractice by the estate lawyer is to the estate and not to the heirs who are not in privity. The executor may have breached his fiduciary duties to the heirs and a seperate suit can be had.

Also, there was a breach of our contract for the benefit of the executor. But you are saying just sue the executor, since he is the seller. But the estate lawyer handled most of the actual selling, the executor mostly just signed. Still the same i guess.
Yes, although depending on what you mean by "most of the actual selling" the lawyer may have a seperate duty to the person being sold to.

The estate lawyer handled the problem of the executor not granting our access, which arose as a result of the executor having this conflict.. This seemed still an estate issue, since it was an action by the executor in conflict of interest with his purchase from the estate. The executor used his power to not grant access after our meeting where they agreed to our access.
There is no need to open the estate to deal with this as this is *not* an estate issue. It is an issue of a potential breach by the executor of his fiduciary duties.

It seemed improper then for the estate lawyer to move to final hearing, when this executor action had not been resolved.
I don't see this at all and am unsure why you feel the estate needs to deal with your issue.

But you seem to say I would sue the executor directly, since he failed to perform as executor for his benefit as buyer or neighbor. But fixing the conflict was done by the estate lawyer, and that fix was promised but not delivered as the final hearing was held. It seemed used as leverage, then not granted.
The attorney, unless he was acting as the agent of the executor, cannot bind the estate. That the "fix" of a conflict of interest was not done is not a reason to reopen the estate as it is not an estate problem. It is a problem of the executor's potential breach of his fiduciar duties to the heirs.

I'd rather avoid the expense of suing, so reopening the estate on the grounds it was closed improperly seemed better. I certainly did feel my getting the full easement was contingent on not being at the hearing to contest the discount the exec' gave himself, for example, but now my own lawyer did not acquire what was promised.
If you win, you will be compensated for your attorney fees. Breaches of fiduciary duties are very serious and attorney fees and punitive damages are often had along with direct damages. Besides, to "reopen the estate" you're going to need an attorney and are going to have to go through a lot more effort and things would be a lot more difficult than starting another suit. I hope you didn't think all you needed to do was send a letter and the estate reopens did you? If your lawyer did not do as you requested, he may have a malpractice suit against him as well.
 

Jack Doe

Junior Member
OK ... what "the estate" is, is a little fuzzy to me. And yes, I think I was looking for a magic button I could "unpush" to open the estate. :p But as you put it, it seems I need to deal more directly with the executor. It did seem the estate attorney was acting on behalf of his friend the executor many times. This drug on for two years.

I was told the executor should have had a separate appraisal for the portion he bought. But my main problem is when they agreed to our access as neighbors, but then he removed it using "executor privilege" after our meeting. That seems rather straight forward abuse. On my complaint of his conflict of interest, he proceeded to make his purchase, in breach of our contract.

Minutes before the final hearing, my attorney assured me the third parcel would be added to the agreement, and he would file it without going back to the estate attorney. Seven months later he had done nothing, and I reminded him, but he did not add the third parcel and filed it without it. But all I have is a verbal agreement on the phone then, and several emails saying I had to have the three parcels. But yes, that seems also straight forward malpractice. He billed me about a thousand and this was not accomplished. I haven't paid the last $500 yet.

Another uncle died a year later ... old farmers that spent little but had a good chunk. I'll get to that later. Thanks for your insights. I've learned a few things but have been rather dumb ...

I didn't think I could win attorney fees ... thanks for that info.
 

Dandy Don

Senior Member
When will people ever learn that VERBAL AGREEMENTS ARE WORTHLESS because in case of dispute there is no proof of who said what!!

Your being under pressure to protect the home for your relative caused you to unwittingly make a mistake: you should never have closed without having had a real estate attorney review/examine the documents to make sure your interests were protected and all clauses you wanted were in there BEFORE closing took place.

Discuss this with a real estate attorney to see if there is some way to get this situation resolved/corrected without having to go through an expensive lawsuit.

DANDY DON IN OKLAHOMA ([email protected])
 

Jack Doe

Junior Member
When will people ever learn that VERBAL AGREEMENTS ARE WORTHLESS because in case of dispute there is no proof of who said what!!

Your being under pressure to protect the home for your relative caused you to unwittingly make a mistake: you should never have closed without having had a real estate attorney review/examine the documents to make sure your interests were protected and all clauses you wanted were in there BEFORE closing took place.

Discuss this with a real estate attorney to see if there is some way to get this situation resolved/corrected without having to go through an expensive lawsuit.

DANDY DON IN OKLAHOMA ([email protected])
I did have an attorney review it, but I did feel they could sell to another which was unacceptable. There was n offer on the table for $30,000 more than we paid. My feeling was if we ever got blocked, we could sue since it was a 100 year access. That seemed more acceptable than losing the homestead. My attorney said it would be very difficult to block us, but did not suggest we should hold out for the access.

I think now these guys look out for each other more than their client, and have been told they won't go against each other by at least three professionals in town. When the estate attorney faxed the bogus copy of our agreement, and I proved it false, my attorney only said "we're back in the game". I wonder why that wasn't deliberate fraud or negligence.

I believe the estate lawyer was constantly misleading about what he claimed I said, when he spoke to my attorney. I caught him in this more than once. But it seemed they did that constantly, and it made my purchase agreement seem weaker. I now feel I should have contested and then made my deal in better writing, before the probate period ended.

In going back with a different attorney, my arguments held enough weight to get them to agree to access, but even after six times telling and emailing my attorney I needed the third parcel, he did not include it. I even went and found the PIN for it, but he did not follow through.

Then he assured me the third parcel was agreed to and he would add it without going back to them ... but he did not do that either.

But you are right, what I am always asked is why I signed without getting that. It seems also good if you are close to someone very old, to be sure to know what they intend in their will, and perhaps video record them. This lawyer and his friend the neighbor/executor are the only two that knew of this secret inclusion of the neighbor in the will for a share.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top