Help Please! Question about selling home with a pending suit.

[kaitmanda]

What is the name of your state?What is the name of your state? Ky

This may get long, but I want to include all the details to hopefully get some help!!

Ok.. in Oct of 2003, my grandmother was in a car accident. The other guy that was involved, claimed his was permanately injured and began a law suit. The insurance company offered $30,000, he refused it, etc.. etc. She passed away on May 8, 2004. This left her mentally handicapped son to whom my mother (her daughter) was to care for. She went to probate court, and they said they couldn't put the estate 100% in his name (as her will requested) because of this pending law suit, so they did it 50/50 (50% in my uncle's name/50% still in my grandmother's name). Last Wednesday, my uncle passed away, which now leaves just my mother. I called the insurance companies' lawyer to see if my mother would be able to sell the house, and he actually said he wasn't sure.

I guess here's the bottom line question, with a law suit like this, can my mother go to probate court, get the estate in her name and sell it? Or will she have to wait until this whole case is settled? No one can seem to answer this question. The insurance adjuster that I talked to said that they thought the most the guy would get would be there maximum payment for the plan which is $100,000. Also, since the house was only 50 % in my grandmother's name, if by some chance, the guy is awarded more than the insurance company is willing to pay, will he only get 50% of the home's price??

I know this is long and complicated, but any advise would be greatly appreciated!!

Stephanie

 

[GaAtty]

GAAtty

If I were doing the lawsuit against your grandmother, I would be so pleased if everyone would hold up disposing of assets, waiting for me to finish my lawsuit! Actually, you are being a little to nice to the opposing side, and I don't understand how the probate court could set aside assets on a claim that hasn't materialized or become a judgment, unless your mom just begged them to, and it almost sounds like she did. (How would the court know about it unless she told them, and telling them is not necessary for probate.)The lawsuit is just that and no more. It is a pending lawsuit. By that , I mean that is not a WON lawsuit. Suppose the guy does not win. Then you would have waited all this time for nothing. Go ahead with the estate. If the attorney on the other side thinks about it, he or she can ask the court to put a hold on the funds in the estate to cover the guy's injuries. You did not mention that anyone had done that, so I presume that he has not. As for your grandma's estate, it is not clear who is executor. It seems like your mom is, but if that is correct, why is she letting the court hold 50% of the assets over a pending lawsuit? A pending lawsuit, as I said, is just that, it is only pending. She should consider appealing the 50% holdout if it is not too late, and it may not be too late if she has just been appointed executor because of your uncle's death. A little more assertiveness is needed here....As for whether your mom can go to court and be the executor, it depends on if your grandmom listed her as alternate executor. If grandma didn't list her, but she is the only living heir, then your mom can apply to be executor. A word of advice, you should stop asking insurance adjusters and insurance companies for legal advice. They do not represent you or your mom, and are not on your side. In fact, if you are asking them things for your mom, like about whether your mom would be able to sell the house, you are representing your mom in a legal capacity and you should not do that. You are not her attorney. You could cause her harm that way. For example, I think it may be harmful to her interests for the insurance company's lawyer to even know that she may be able to sell the house! What if he didn't know that previously, and now that he does, his company knows exactly whose name the house will be put in and what part your mom will own. You are too busy running around trying to fall all over yourself worried about a lawsuit that you MIGHT have to pay. There is a lot of ways not to win a personal injury lawsuit. I know, I do them. It could be that the injured person can't get doctors to testify for them, it could be that they had a prior injury of the same type, it could be that the jury can't stand this person, maybe your grandma didn't cause the accident (she's not here to testify), maybe the person's lawyer made some mistakes, maybe his injury is only worth $15,000 not $100,000, and ad infinitum. You need to stop worrying about what MAY happen, and you mom needs to go ahead and disburse the assets and try to get the probate court to release the other 50%. If I were the attorney representing your mom, I'd be saying that it's been almost two years and the guy's had time, etc., etc., (has the guy even gotten to court yet?) You or your mom are NOT obligated to hold funds out just IN CASE this guy gets a judgment. That is absurd. If the person has an attorney that's any good, the attorney knows how to take actions to place a hold on the money in the event that he/she is worried about a fraudulent transfer. The attorney can ask the court to freeze assets, and other such actions. If the attorney is too dumb to do that, why do you want to help him/her by holding the money for them? You are being too nice. Get a little more arrogant, stop telling the insurance people all of your mother's business and the estate's business, stop representing your mom and the estate to them (you are not a lawyer, she can speak for herself, although she shouldn't be asking or telling them the same things, either), and tell your mom to get the money from the estate and stop trying to find reasons not to get the money.