information about wills and recording

[jstus]

What is the name of your state? Alabama
my grandfather,grandmother,their eldest daughter and her husband purchased 2 acres of land in 1950. my uncle died first without a will and children; my grandfather died next in 1972 with no will and had 8 children living to include the daughter who originally had her name on the property; my grandmother had a will prepared in 1973 listing that if she dies and her three daughters survive after her, they are to have the property. at the time the will was prepared, it was not required to have the will probated. i tried to record the will and was informed by two lawyers that the will must be probated first. i have been searching for answers since my grandmother's death in 1982. my mother is the only living girl mentioned in the will from my grandmother. i have contacted the two witnessess that signed the will after my grandmother signed. i again contacted probate court and asked the question, could i record this will. i now receive an answer saying that yes i can record a will without it being probated, but some people may look at it as useless where as others will look at it as a legal document. i wanted to know is it okay to ask the living witnessess to prepare an affidavit from an attorney a proof of last will and testament affivadit to attach to this will that we have when it is recorded? this could have been handled over twenty years ago and because of lack of knowledge in the law, we were given the wrong information. we have relatives who in fact state that neither my grandfather, nor grandmother never in fact had a will. what can i do?

 

[Dandy Don]

Sometimes the clerks at the probate office do not know all of the details of a particular situation and are not really qualified to give legal advice--they should have always suggested that you consult a local probate attorney. What is the value of the land? What is the minimum amount of estate value required by the county courthouse probate court before probate is required? No matter what the value of the land is, the will is going to need to be probated to determine who the legal heirs are.

You need to be consulting with a local probate attorney to have him/her assist you in finding out:

(1) Who are the official legal heirs to the property from your grandfather's share of the estate after he died--does it all go to his wife (the grandmother) as a surviving spouse or does it go to each of the 8 children or some combination of both?

(2) Since there wasn't a will to be probated, someone in the family should have filed to get the land probated but you probably didn't know about that at that time, so now it will have to be done for the grandfather's share of the estate, and then later it may need to be done for the grandmother's share of the estate. Grandmother's will does not have the right to decide 100% what happens to the land--her will can only designate heirs for her 1/4th share IF her name appears on the title/deed as part owner.

Does the title/deed now show the names of 4 owners or just one owner?
Did these 4 people all pool their money to buy this property--then there is multiple ownership.

No matter whether you all want to keep the property in the family or sell it to someone else, you will have to pay a few hundred dollars to an abstract/title company to get the names on the deed/title changed to show who the current legal heirs are, and a probate attorney can help you figure it all out.

 

[jstus]

Good evening Sir:
To try and answer some of the questions posed to me. The value of the 2 acres of land is worth approximately $26,000. The minimum amount according of estate value required by the county courthouse probate court before probate is required [ I found out today] is $3,000. My grandfather died without a will. The original deed had only four names on it. The title deed now has 2 names on it - my mother's and her sister, Sallie Torbert who died in 1998 and she left a will in which I had probated. My aunt left everything to my son. According to my mother, my uncle paid the $100.00 to purchase this land in 1950 [this is the uncle that named had appeared originally on the deed with his wife who both died without a will and had no siblings]. We in no way want to sell the property. We wouldn't have anywhere to go! At this point, the house on this proerty has been condemned and as far as taxes, I found each one with my mother's signature on it as paying taxes. If the grandchildren [my cousins] feel that they have an interest, can they be made to pay taxes on this property? We tried to get the people who claim to have an interest in the property to go in half in going to an abstract/title company to get this matter resolved. They replied NO! They stated that no one can make them pay anything regarding this property!
Again I do appreciate your response. We didn't realize until know, that all attorneys are not knowledgeable in all areas of the law. I really wished the two attorneys that we went to would have just told us that they didn't know what they were doing; instead they took our money and received no results. I realize that we must seek an attorney with this area of expertise, but it is so hard in this close-nit town. Could you please reply to the answers I have provided for you? In the meantime, I have made an appointment with a real estate attorney in hopes to get some peace of mind for my mother and myself. Awaiting your response.
Thanks!

 

[Dandy Don]

It is not a matter of whether or not the grandchildren "feel" that they have an interest in the property--if it is proven that they do have an interest in the property as legal heirs then you can bill them for their share of the property taxes, but if they won't pay someone should go ahead and pay up on their behalf so that the property won't go up for foreclosure if unpaid taxes were left unpaid for a long period of time. I know it's unfair but sometimes the responsible people in the family have to do the right thing on behalf of the stupider, irresponsible ones.

If you got no results from the probate attorneys, at least go back to them one more time to ask them to help you figure out who the legal heirs are (without being billed this time) or consider filing a complaint against them with the local or state bar association.

It is wise to consult with the real estate attorney and I'm sure they will have information on what you can do legally to correct the situation, but I wonder if they can help you figure out who the actual heirs are--it would seem that only a probate attorney could do that. You don't have to be confined to just the attorneys in your same town--you can look outside your city elsewhere in another county--the advice would still be applicable statewide.

 

[jstus]

Thank you again for your quick response! As I stated I have made an appointment with a real estate attorney and maybe we will get some results and peace of mind. I kept all the proof showing where in 1989 and 1992 where we tried to record a will, but after looking over the papers in 1989, the attorney [well known in the community] stated that we didn't need the will that my grandmother and prepared [she died in 1982]; instead we received from him a statutory deed! Could you please tell me where would I look to see exactly how long from the date of the decease if one wanted to probate a will? Again, I've asked several attorneys and each one has given a different answer! One attorney stated 7 years; another stated 10 years and the last one stated 20 years from the date of death! I tried to look this information up myself in the Code of Alabama 1975, but I couln't find it. Ever try practicing in the state of Alabama? I really appreciate your straight forward answers and not the run-around comments.
Please reply.
Thank You