Creditors and Trust funds

[lauren0309]

What is the name of your state? NY

When my mom's will was in probate I had to post bond and file Trusteeship papers and was told by my lawyer I have to put my children's money from the sale of her apartment into a Trustee Account until t hey turn 21. Probate is over now and I am in the process of trying to sell her apartment. Its been a year since she passed away. Can creditors have claim to the money from the sale of the apartment even though its in a trust account for the children or were they supposed to do that when the will was in probate?

 

[anteater]

What is the name of your state? NY

When my mom's will was in probate I had to post bond and file Trusteeship papers and was told by my lawyer I have to put my children's money from the sale of her apartment into a Trustee Account until t hey turn 21. Probate is over now and I am in the process of trying to sell her apartment. Its been a year since she passed away. Can creditors have claim to the money from the sale of the apartment even though its in a trust account for the children or were they supposed to do that when the will was in probate?

I read some of your other posts and I am confused. Less than 3 months ago, you did not have the Letters Testamentary and were being asked by the court to post bond. Now you say that "probate is over..and I am in the process of trying to sell her apartment." Generally, "probate is over" means that the personal representative has fulfilled all their duties, been released from thier responsibilities, and no longer have any legal powers.

I don't know New York, but most states require that the estate notify known creditors that probate has been opened. And that notice of estate administration be published so that any other creditors can file a claim against the estate. Creditors are generally given 4 to 6 monts to file claims, sometimes longer. Creditor claims have priority over distributions to beneficiaries.

 

[lauren0309]

My mistake. I thought probate was over once I received the Testamentary Letters and Letters of Trusteeship. My lawyer doesnt explain anything to me. I rarely get to talk to him. I thought once I received this paperwork from the court it meant probate was over. So what you are saying is that once the apartment is sold and money distributed into the accounts, then probate is over? Also my lawyer is holding all the original papers issued from the court, Testamentary Letters and Trusteeship. Does he have a right to hold onto them even though I requested he send them to me? I haven't seen any paperwork at all and I havent received a single statement of what I owe his thus far for his services after I have made several requests.

 

[lauren0309]

Another question in addition to the above questions, since the money has to be put into a Trust for the minor children, does the trust accounts be put into the law firms hands and the funds stay with them? Nothing was explained to me by my lawyer.

 

[las365]

Talk to your lawyer

Make a list of all of the questions you have for your lawyer. Review your contract with the lawyer to see how specific it is about what services he is to provide for you in the probate process. Make an appointment to see your lawyer. After setting the appointment, fax a polite letter to his office confirming the appointment date and asking him to have a statement of his services provided and fees to date to give to you at your meeting.

At the meeting, ask the questions you have. If you don't understand the contract with the attorney (which should have been explained to you before you signed it) ask him to explain it to you. Does his office notify the Estate's creditors, or do you? Does he negotiate payoffs of monies owed to creditors on your behalf? What are your duties and rights as the Executrix, Trustee or whatever you are? How long does he expect the process to take? How is the money handled? Does he get paid as the process goes along, or at the end? Take notes of his answers.

In other words: communicate, ask, listen.

 

[lauren0309]

Thanks I will do that. I never even got a contract from him or signed anything.. All he did on the very first visit was tell me it was going to be $450 to file the initial papers with court.

 

[las365]

Oh, that's kind of a red flag to me. That sounds like a flat fee for a specific service - that's probably why you haven't gotten a bill. You should still have signed an attorney-client agreement that said exactly what legal services you would get for your flat fee. Was there a letter or receipt or anything that you got when you paid the fee?

When you call to talk to his office and make the appointment, ask what the status of representation is. Do they consider their work completed because the Letters Testamentary, etc., have been issued? If so, you may incur an hourly charge for the meeting*. It would probably be worth it, but you need to know in advance.

If there is no ongoing representation, it would also mean that you could go to a different attorney without having to "fire" this one first. If you weren't satisfied with the communication and information provided by this attorney, you could try a different one. It's usually a good idea to have continuity, though, since he is already familiar with your situation.

* I worded this poorly. The attorney will probably charge you for his time (as he should) for the meeting, whether it is under an ongoing hourly rate agreement for as an additional consult following the flat fee agreement. I meant you should find out whether he is still representing you.

 

[anteater]

Thanks I will do that. I never even got a contract from him or signed anything.. All he did on the very first visit was tell me it was going to be $450 to file the initial papers with court.

Responders to your posts of more than 3 months ago urged you to retain a different attorney. Apparently, you have not done that yet. Since you do not understand the probate process and have no clear understanding of your relationship with this existing attorney, you need to retain someone else NOW!

 

[lauren0309]

Yes we just wanted this one to finish up what he started but are going to use a different one to handle the sale of the apartment and request all the papers for the work he has done thus far. He's not aware of this fact yet and I think that is why he is holding onto my original documents. I feel his incompetency has cost us money and wasted time.