Cluster**** Estate

[SeekingInfoInGA]

I'm the eldest of 3 children. Dad had a will, and in it he named me the executor and; left the house to me, a condo to my brother, and his commercial property to m.y other brother. Mom had no will, but Dad died first, and mom died about a month later. The brother who was supposed to get the condo is the second oldest, a drug addict and a convicted felon. For the past 8 years, he wasn't even welcome at my parents home. Dad passed away last September, and then Mom passed in October, and he went to jail before mom's death. He was released from jail about 3 weeks ago, early, and while I wasn't home, came to my parents house, and had a locksmith come out and let him in.

We've been told that Dad's will is useless because he died first and Mom didn't have a will and the house was in mom's name, in which case, all assets would be split 1/3 to each of us.

Now my brother has taken control of my mother's car and is driving it, and has rented out the condo and is keeping all whatever rent he's getting and isn't telling any of us, while he's insisting on living in their house with me (I've been here taking care of them for 2 years before they died) and insisting that he's either going to live here with me or we're going to sell the property and split the proceeds 1/3 each. He's claimed that he 'should' be the executor because he's the oldest 'male.' child and he's even hinted that he's going to file to petition to be the executor.

There is stuff missing out of the house that I think he sold too.

I think he thinks that because the condo was in Dad's name, that Dad's 'will' is valid for that, but that since Mom didn't have a will at all, that he should get 1/3 of all the other assets.

I'm going to file the probate and petition to be executor, by mail on Monday. Is there anything I can do to stop him from taking assets and selling them until then?

 

[Just Blue]

I'm the eldest of 3 children. Dad had a will, and in it he left the house to me, a condo to my brother, and his commercial property to m.y other brother. Mom had no will, but Dad died first, and mom died about a month later. The brother who was supposed to get the condo is the second oldest, a drug addict and a convicted felon. For the past 8 years, he wasn't even welcome at my parents home. Dad passed away last September, and then Mom passed in October, and he went to jail before mom's death. He was released from jail about 3 weeks ago, early, and while I wasn't home, came to my parents house, and had a locksmith come out and let him in.

We've been told that Dad's will is useless because he died first and Mom didn't have a will and the house was in mom's name, in which case, all assets would be split 1/3 to each of us.

Now my brother has taken control of my mother's car and is driving it, and has rented out the condo and is keeping all whatever rent he's getting and isn't telling any of us, while he's insisting on living in their house with me (I've been here taking care of them for 2 years before they died) and insisting that he's either going to live here with me or we're going to sell the property and split the proceeds 1/3 each. He's claimed that he 'should' be the executor because he's the oldest 'male.' child and he's even hinted that he's going to file to petition to be the executor.

There is stuff missing out of the house that I think he sold too.

I think he thinks that because the condo was in Dad's name, that Dad's 'will' is valid for that, but that since Mom didn't have a will at all, that he should get 1/3 of all the other assets.

I'm going to file the probate and petition to be executor, by mail on Monday. Is there anything I can do to stop him from taking assets and selling them until then?

What state?

 

[SeekingInfoInGA]

What state?

Georgia

 

[LdiJ]

I'm the eldest of 3 children. Dad had a will, and in it he named me the executor and; left the house to me, a condo to my brother, and his commercial property to m.y other brother. Mom had no will, but Dad died first, and mom died about a month later. The brother who was supposed to get the condo is the second oldest, a drug addict and a convicted felon. For the past 8 years, he wasn't even welcome at my parents home. Dad passed away last September, and then Mom passed in October, and he went to jail before mom's death. He was released from jail about 3 weeks ago, early, and while I wasn't home, came to my parents house, and had a locksmith come out and let him in.

We've been told that Dad's will is useless because he died first and Mom didn't have a will and the house was in mom's name, in which case, all assets would be split 1/3 to each of us.

Now my brother has taken control of my mother's car and is driving it, and has rented out the condo and is keeping all whatever rent he's getting and isn't telling any of us, while he's insisting on living in their house with me (I've been here taking care of them for 2 years before they died) and insisting that he's either going to live here with me or we're going to sell the property and split the proceeds 1/3 each. He's claimed that he 'should' be the executor because he's the oldest 'male.' child and he's even hinted that he's going to file to petition to be the executor.

There is stuff missing out of the house that I think he sold too.

I think he thinks that because the condo was in Dad's name, that Dad's 'will' is valid for that, but that since Mom didn't have a will at all, that he should get 1/3 of all the other assets.

I'm going to file the probate and petition to be executor, by mail on Monday. Is there anything I can do to stop him from taking assets and selling them until then?

You could try to get the police involved. The problem is, is that he may be right about some things. Any asset that was a joint asset would have passed to your mother, outside of your father's estate, so if your mother died without a will, then her assets would be evenly divided between the three of you. However, any assets that were in your father's name only, would pass to whomever he left them too.

When you apply to be executor, you need to apply to be executor of BOTH estates. There isn't just one, there is your father's and your mothers.

 

[SeekingInfoInGA]

You could try to get the police involved. The problem is, is that he may be right about some things. Any asset that was a joint asset would have passed to your mother, outside of your father's estate, so if your mother died without a will, then her assets would be evenly divided between the three of you. However, any assets that were in your father's name only, would pass to whomever he left them too.

When you apply to be executor, you need to apply to be executor of BOTH estates. There isn't just one, there is your father's and your mothers.

Thank you very much for the help. I have spoken to a couple of attorneys who did say that we would have to file two separate estates. Right now, what I want most of all, is my brother out of my parents house.

 

[Zigner]

Thank you very much for the help. I have spoken to a couple of attorneys who did say that we would have to file two separate estates. Right now, what I want most of all, is my brother out of my parents house.

As you've been told, depending on how it was titled, it may in fact be your brother's house as well.

 

[SeekingInfoInGA]

As you've been told, depending on how it was titled, it may in fact be your brother's house as well.

Yes, I realize that's been said. Thank you.

 

[not2cleverRed]

Yes, I realize that's been said. Thank you.

One word of hope: executors are not determined by who is the eldest *male*. Even in Georgia, a female can be named executor.

 

[zddoodah]

I'm the eldest of 3 children. Dad had a will, and in it he named me the executor and; left the house to me, a condo to my brother, and his commercial property to m.y other brother. Mom had no will, but Dad died first, and mom died about a month later.

What did your father's will provide that your mother would receive from his estate? Were the items of real property you mentioned the only things that you and your brothers were to receive? I also find it more than a little baffling that it's been six months since your father died and you're only now starting probate.

We've been told that Dad's will is useless because he died first and Mom didn't have a will and the house was in mom's name, in which case, all assets would be split 1/3 to each of us.

Been told by whom? As phrased, the statement that your father's "will is useless because he died first" is absolutely incorrect. However, if he house was only in your mother's name, then that presents potential complications as far as the administration of your father's estate is concerned.

I think he thinks that because the condo was in Dad's name, that Dad's 'will' is valid for that, but that since Mom didn't have a will at all, that he should get 1/3 of all the other assets.

Well...without seeing the will and without having the answers to the questions I asked, he's not likely wrong about any of this. Since the house wasn't titled in your father's name, he arguably could not dispose of it by way of his will. Instead, it would be disposed of as part of your mother's estate and, since she didn't have a will, her estate (or what's left of it after estate debt is paid) gets divided evenly among her living children (assuming she had no predeceased children). However, your father's will is perfectly valid as to his estate and property he owned at the time of his death. As a result, the gifts of the condo and commercial building should be good, but a will can't dispose of something that the testator doesn't own. The big wrinkle here is how Georgia marital property laws influence any of this.

I'm going to file the probate and petition to be executor, by mail on Monday. Is there anything I can do to stop him from taking assets and selling them until then?

Given that it's now Monday, this is obviously a moot question, and you're in way over your head and should consult with and retain the services of a local probate attorney.

Right now, what I want most of all, is my brother out of my parents house.

At the moment, he has as much right to be there as you do. Also, if you're going to continue living there, you should be prepared to pay the estate fair market rent.

 

[SeekingInfoInGA]

I understand why it might seem baffling. Mom's death was expected. Dad's was not. Dad died in September. Mom died in October. The brother who is causing the problems was in jail at the time. Then in January, my partner died unexpectedly. With our problem brother still in jail, and the grief and shock, my other brother and I were doing our best to locate the wills and the insurance policies, etc. When I did finally find them, all that was mentioned in Dad's will were the assets I have already mentioned. There was nothing about personal property, and he made no provisions for Mom because the house and cars were in her name, and they had separate life insurance policies.

Yes, the house was in Mom's name, the condo, commercial property and business were in Dad's, although that was done due to Dad having had some financial troubles which included him forging her signature on some loan documents, which was the reason she insisted that the house be put in her name only.

I don't know why Mom didn't have a will.

I believe Dad probably thought that in the event of either of their deaths, the house and all assets would go to the surviving spouse, and as Mom's death was expected, and this is just what I 'think,' as it was never discussed, he expected the house would then go to him and that his will would then be 'sound'... (if that's even the right word.)

I have consulted a 'mediation company,' though they wanted twice what the first attorney we spoke to wanted for a retainer.

So I'm still interviewing attorneys.

I don't know if I am going to continue to live in the house or not. The brother who is causing the problems is a drug addict and he brings his druggie friends here. He's moved his girlfriend and her child (very young, maybe 5 years old) into the house. He hits his girlfriend, and he's also a felon, who, while I was away had a locksmith let him into this house where I lived with our parents for the past two years, taking care of my mother, while he partied and did his stints in and out of jail, and also while I was away, took it upon himself to rifle through my belongings, where he found my gun and my ammo and moved them. He gave me back the gun, but claims he has no idea where my ammo is, and I suspect he sold it. He's also taken possession of both of my mother's cars, one he is driving that he refuses to give me the keys to, and another that he has sitting up on blocks, at the condo complex, incurring HOA fines, which the HOA director tells me that my brother told him he's 'sold.'

The mediator did advise me that I can file for, and have heard, an 'emergency' order to 'protect the assets,' that he's attempting to effectively 'steal' from the estate and that he will have to pay back out of his share of any liquidated assets from the estate, and that I am entitled to compensation for the time I spent caring for our parents, and I believe even for the mortgage payments I made on my parents house for the past two years.

I hope that clears everything up.

 

[SeekingInfoInGA]

I've consulted with a few attorneys. I'm going to meet up with my other brother this weekend to finalize our plans, and I think one of us is going to file a petition to be named temporary guardian so that we can protect the assets from our wayward brother, who has just taken it upon himself to sell one of mom's cars.

I do have a couple of other questions, though before I even ask, I want to reply to the comment left just before my last one, regarding 'paying the estate rent.'...
I pay the mortgage and all of the bills for the house and have for the past two years until just this month when my 'wayward' brother barged in and did chip in on the mortgage, though he also tried to scam me out of more money. And he was only able to do that because of a life insurance policy our parents had. He doesn't work, doesn't get disability and has the condo rented out (which until the estate is probated and he's granted that property, he either isn't supposed to do or is supposed to be splitting with us,) but, that mortgage is behind and the property is in foreclosure. So no, I'm not paying the estate rent. I'm paying the estate's bills.

Which brings me to my next two questions

So, one of the things that at least two of the lawyers I'd spoken with had mentioned was that because I was the caregiver for my parents for the past 2 years that the courts will take that into account when deciding how the property should be divided. I wonder where I might find any information regarding this? I would be interested in knowing just how much value the courts have put it on it, as my 'good' brother and I are considering making our other brother an offer to buy him out.

My second question is, can I recover any of the mortgage payments I've made for my parents home over the past 2 years?

Thanks in advance for you help.

 

[Zigner]

So, one of the things that at least two of the lawyers I'd spoken with had mentioned was that because I was the caregiver for my parents for the past 2 years that the courts will take that into account when deciding how the property should be divided.

Not if they follow the law.

I wonder where I might find any information regarding this?

Ask they attorney(s) whom you believe told you that.

My second question is, can I recover any of the mortgage payments I've made for my parents home over the past 2 years?

You mean the rent that you've been paying at the place you live?

 

[SeekingInfoInGA]

Thank you. Your non-lawyer opinions on what 'following the law' and calling attorneys who I 'believe' told me that, as well as your belligerent comment about my parents home, has been noted and given it's due attention. Feel free to not offer any more belligerent, useless commentary from your mom's computer

If there's anyone who might be able to help me find statute law or case law, or who has been through anything like this and can give me some ideas on where I can look, I would appreciate it.

I posted here because I had hoped to find people who had been through this, who could help, and I also hoped to get some direction more quickly than I might if I had to call the attorney's office back only to schedule a phone call that probably couldn't happen any time before Monday. I went to FL to visit a friend last week, and my brother went through all my clothes and my personal belongings and took stuff out of my bedroom...

I honestly have no idea why anyone would be belligerrent towards me in this situation but yet, have nothing belligerrent to say about my brother NOT 'paying rent for the house in which he lives,'... but for the record, if anyone else feels the need to be douchey about this, because it makes you feel like Billy Bad Ass, I think you might want to ask yourself if really think it makes you look 'good.' Because it doesn't. Hate isn't a good color on anyone.

 

[Zigner]

Statute or case law about what? Your basic premise is flawed to begin with.

 

[zddoodah]

So, one of the things that at least two of the lawyers I'd spoken with had mentioned was that because I was the caregiver for my parents for the past 2 years that the courts will take that into account when deciding how the property should be divided. I wonder where I might find any information regarding this?

Like "Zigner," I am of the opinion that a court doing that would be ruling contrary to the law. Where can you find info about that? First, ask the attorneys who told you for clarification. Second, look at your father's will (as concerns his estate) and the intestate law (as concerns your mother's estate). Third, look at relevant case authority.

My second question is, can I recover any of the mortgage payments I've made for my parents home over the past 2 years?

Unlikely. I disagree with "Zigner" that this would be treated as "rent." Rather, it would likely be viewed as gifts (either outright or in lieu of rent). The only way you'd be entitled to recover is if you and one or both of your parents had a written agreement for you to do so.

Also, your post #13 is completely uncalled for. There was nothing "belligerent" about what "Zigner" wrote. Reactions like that motivate folks to ignore you.