Estate property, or not???

[pburchett]

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

I pose this difficult scenario, which may seem as if it came from a law exam, but is the sad reality I live day to day. .

My brother allegedly murdered my parents. State Police have a full video taped confession and he does not deny the act. I (administrator of the estate) am the only other sibling of my parents, and they did not have a will. My brother does have an ex-wife and an alleged child (born out of wedlock), along with an ex-girlfriend and two alleged children by her (born out of wedlock). A DNA test is needed.

As court appointed administrator, I have disposed of all personal property. I purchased some estate property via a private sale to myself with the written approval of my brother and two estimates on the property’s value. This was done to pay estate debts. Later, I disposed of the remainder of the estate’s personal property by way of a public auction. One piece of real estate (home) was sold to finish paying debts following the Kentucky Revised Statutes 389A.010 (listed below), and one piece of real estate remains.

Later I wanted to purchase the remaining real estate and the estate attorney advised we follow the same statute (389A.010). I had an appraisal done and we mailed notice to my brother and his children (they may have a contingent interest) and waited 30 days. No objection. A motion was prepared for district court, appeared at court, and it was approved by the JUDGE and the surety bond increased, waited 30 days for any objection and then the attorney (my estate attorney) now refuses to write the deed unless the deed is a quit-claim deed from the children, my brother and the money is deposited to them in his escrow account. I refuse to have a deed with their names on it or to deposit the money anywhere but the estate account unless ordered to by the judge.

My estate attorney tells me that the real estate is not property of my parent’s estate, but property owned by me, my brother and his children, due to his murderous act. Currently Kentucky does not have a slayer statute. My brother has been in jail 1 ½ years and is still awaiting trial. The trial should be another 2 years in the future, so he has not been proven guilty, so he must currently be presumed innocent.

If the real estate is not estate property (of which I do not agree) who is to pay for the taxes, insurance and upkeep? I currently use estate funds to pay the necessary bills on the real estate and I perform all maintenance (hoping to be reimbursed when the estate is able to be settled). If this is true (I do not agree) I am in trouble for spending estate funds on this property. Under this assumption I would need to take out a lien against my brother and his children’s half of the property for the maintenance, since they have no money.

The plot thickens as the estate attorney represents my brother’s ex-mother-in-law in a large retail store lawsuit (7 million) but swears it is not a conflict of interest. Who do you think he represents most? The 100 K estate or the 7million suit? The mother-in-law or the rest of the family does not work and the lawsuit has been appealed for 5-6 years now and they need money immediately or so I believe.

Since I disagree with my estate attorney he wrote me a letter telling me to get a second opinion. I got three second opinions and I am told that all is legal. I am told the judge’s order is all that is needed with the previous steps taken under KRS 389A.010. I am also told not to deposit the money anywhere but the estate account, or I will likely have to pay for the real estate twice. One of the second opinion attorneys tells me to fire this guy, and the other two tell me to let him release me from his counsel.

I relay the second opinions and the attorney will not release me, but writes me a letter to “Whom it may concern” stating that he does not feel comfortable making the deed as he thinks it passes by intestate succession to my brother (plus his kids) and myself. He also states that he has advised me to seek a second opinion and has no objection to another attorney preparing the deed.

I do not think another attorney will write the deed under these conditions. Is the estate attorney correct on all of his points or should I fire him? I can wait for a while on the property, but would like to settle my part of the estate and put my brother’s portion aside till a judge tells me what to do with it.

Should I have the estate attorney to make a motion to have the kids tested for paternity? I do not wish to ask the mothers myself.

Where do I look for case laws or precedent laws pertaining to Kentucky and the Slayer Statute? Google will only get you so far.

What to do??? What to do???







KRS 389A.010 Jurisdiction of District Court -- Adversary proceedings to be in Circuit Court.
(1) Notwithstanding any other statutory limitation of the jurisdiction of the District
Court:
(a) Any trustee, guardian, conservator, or personal representative (hereinafter
"fiduciary"), not otherwise possessing a power of sale, may move the District
Court of the county in which the fiduciary has qualified for an order granting
the fiduciary the power to sell or mortgage any real estate or any interest
therein possessed by his ward, decedent, or trust; and
(b) The District Court may enter an order granting the fiduciary the power to sell
or mortgage any real estate or any interest therein possessed by the ward,
decedent or trust.
(2) The motion shall include an adequate description of the property, a sum**** of the
grounds for the motion, and a request that the bond of the fiduciary be increased in
an adequate amount in accordance with KRS 395.130.
(3) Unless waived in writing, written notice of the hearing with a copy of the motion
shall be served in a manner authorized by the Rules of Civil Procedure for the
initiation of a civil action upon all persons who have a vested or contingent interest
in the property interest sought to be sold. Where the property interest sought to be
sold belongs to a person under legal disability, service of notice and defense shall be
governed by Civil Rules 4.04(3) and 17.03.
(a) In the case where the subject of the action is the property interest of a person
under legal disability, unless waived in writing, written notice by certified
mail, return receipt requested shall be given to all known adult next of kin of:
1. The nature and pendency of the action; and
2. Not less than thirty (30) days' notice of the time, date, and location of the
hearing on the motion. At or before the hearing, the fiduciary or his
attorney shall file an affidavit on personal knowledge showing
compliance with this paragraph and attaching a copy of the notice given
and the original of all receipts returned.
(b) All such persons shall have standing to present evidence and to be heard at the
hearing.
(4) An aggrieved party may no later than thirty (30) days from the date of the order,
institute an adversary proceeding in Circuit Court pursuant to KRS 24A.120(2) in
respect to any order affecting the right of the fiduciary to sell or mortgage. Pending
the entry of a final order and expiration of the time for an appeal therefrom, neither
the fiduciary nor the owner of any vested interest shall make any conveyance or
mortgage of the real estate and any attempt to do so shall be null and void.
(5) No proceedings under this section shall be conducted by or before a commissioner
of the District Court.
Effective: September 1, 1998
History: Amended 1998 Ky. Acts ch. 517, sec. 9, effective September 1, 1998. --
Amended 1988 Ky. Acts ch. 90, sec. 1, effective July 15, 1988. -- Amended 1984
Ky. Acts ch. 111, sec. 157, effective July 13, 1984. -- Amended 1982 Ky. Acts
ch. 141, sec. 145, effective July 1, 1982; and ch. 277, sec. 4, effective July 15, 1982.
-- Created 1980 Ky. Acts ch. 87, sec. 2, effective July 15, 1980.
Legislative Research Commission Note (6/24/2003). Under the authority of KRS
7.136, the Reviser of Statutes has changed a reference in subsection (4) of this
section from "KRS 24A.120(1)(b)" to "KRS 24A.120(2)."

 

[BelizeBreeze]

The only issue you raise for this forum is whether or not you should terminate the estate's attorney and for that, only opinion can be offered.

You have three such opinions, all of them essentially the same. And that is, get rid of the attorney.

Now, if you need a fourth, here it is: If you 'feel' there is a conflict of interest, whether real or perceived, then there is nothing gained by retaining his/her services.

 

[Dandy Don]

You need to post a brief version of your question to www.lawguru.com, another free advice website, and limit your question to whether Kentucky has a slayer statute or not.

You should also be consulting with an attorney who has access to paralegal services to research case law to see if there is a precedent of a similar situation to yours. Will the brother sign the quitclaim deed or have you even asked them to do that? If he will sign the quitclaim deed, then your problems are over. You may be making this more difficult than it needs to be, and you also need to get counsel from your attorney on what partition means (forcing a sale of the property).

DANDY DON IN OKLAHOMA ([email protected])

 

[pburchett]

KY Slayer Statute

It would appear that if my attorney was worth his salt he would point out these statutes and direct me in the correct way.


I found a KY statute “a slayer statute” as I read it. I am just having a problem with the last portion of the wording. “the property interest so forfeited descends to the decedent's other heirs-at-law,” Would my brother’s children be considered heirs-at-law under the below Kentucky Revised Statute?


381.280 Forfeiture of right to property for killing decedent.
If the husband, wife, heir-at-law, beneficiary under a will, joint tenant with the right of
survivorship or the beneficiary under any insurance policy takes the life of the decedent
and is convicted therefor of a felony, the person so convicted forfeits all interest in and to
the property of the decedent, including any interest he would receive as surviving joint
tenant, and the property interest so forfeited descends to the decedent's other heirs-at-law,
unless otherwise disposed of by the decedent.
Effective: October 1, 1942
History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky.
Stat. sec. 1406a.



Real estate and personal property descend by the following statutes, but particular attention needs to be paid to the portions in bold and the wording or interpretation of children and their descendants, in relation to the above statute.

391.010 Descent of real estate.
When a person having right or title to any real estate of inheritance dies intestate as to
such estate, it shall descend in common to his kindred, male and female, in the following
order, except as otherwise provided in this chapter:
(1) To his children and their descendants; if there are none, then
(2) To his father and mother, if both are living, one (1) moiety each; but if the father is
dead, the mother, if living, shall take the whole estate; if the mother is dead, the
whole estate shall pass to the father; if there is no father or mother, then
(3) To his brothers and sisters and their descendants; if there are none, then
(4) To the husband or wife of the intestate; if there are none surviving, then
(5) One (1) moiety of the estate shall pass to the paternal and the other to the maternal
kindred, in the following order:
(a) The grandfather and grandmother equally, if both are living; but if one is dead,
the entire moiety shall go to the survivor; if there is no grandfather or
grandmother, then
(b) To the uncles and aunts and their descendants; if there are none, then
(c) To the great-grandfathers and great-grandmothers, in the same manner
prescribed for grandfather and grandmother by subsection (a); if there are
none, then
(d) To the brothers and sisters of the grandfathers and grandmothers and their
descendants; and so on in other cases without end, passing to the nearest lineal
ancestors and their descendants.
(6) If there is no such kindred to one of the parents as is described in subsection (5), the
whole to go to the kindred of the other. If there is neither paternal nor maternal
kindred, the whole shall go to the kindred of the husband or wife, as if he or she had
survived the intestate and died entitled to the estate.
History: Amended 1974 Ky. Acts ch. 328, sec. 2. -- Amended 1956 Ky. Acts ch. 132,
sec. 1, effective May 18, 1956. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective
October 1, 1942, from Ky. Stat. sec. 1393.



391.030 Descent of personal property -- Exemption for surviving spouse and
children -- Withdrawal of money from bank by surviving spouse.
(1) Except as otherwise provided in this chapter, where any person dies intestate as to
his or her personal estate, or any part thereof, the surplus, after payment of funeral
expenses, charges of administration, and debts, shall pass and be distributed among
the same persons, and in the proportions, to whom and in which real estate is
directed to descend, except as follows:
(a) The personal estate of an infant shall be distributed as if he or she had died
after full age;
(b) An alien may be distributee as though he or she were a citizen; and
(c) Personal property or money on hand or in a bank or other depository to the
amount of fifteen thousand dollars ($15,000) shall be exempt from
distribution and sale and shall be set apart by the District Court having
jurisdiction over the estate on application to the surviving spouse, or, if there
is no surviving spouse, to the surviving children.
(2) The surviving spouse may, at any time before the property or money is set apart by
the court, procure on petition from the Judge of the District Court having
jurisdiction over administration of the estate, an order authorizing the surviving
spouse to withdraw from any bank or other depository not exceeding one thousand
dollars ($1,000) belonging to the estate of the deceased. Upon presentation of the
order, the bank or depository shall permit the surviving spouse to withdraw the sum
and shall lodge the order, endorsing thereon the amount withdrawn, with the circuit
clerk who shall retain it in his or her files to be considered in connection with
further proceedings in the estate and the withdrawal shall be treated as a charge
against the property of the estate exempt from distribution.
(3) In the application for the setting apart of property or money under subsection (1) of
this section, the surviving spouse or, if there is no surviving spouse, the surviving
children may make their selection out of the personal property of the estate to the
extent that the value of the property selected does not exceed the amount of fifteen
thousand dollars ($15,000).
(4) The exemption provided in this section applies where the husband or wife dies
testate.
Effective: July 15, 2002
History: Amended 2002 Ky. Acts ch. 362, sec. 1, effective July 15, 2002. -- Amended
1992 Ky. Acts ch. 129, sec. 1, effective July 14, 1992. -- Amended 1988 Ky. Acts
ch. 27, sec. 1, effective July 15, 1988. -- Amended 1982 Ky. Acts ch. 51, sec. 1,
effective July 15, 1982; and ch. 277, sec. 7, effective July 15, 1982. -- Amended
1980 Ky. Acts ch. 259, sec. 8, effective July 15, 1980. -- Amended 1976 (1st Extra.
Sess.) Ky. Acts ch. 10, sec. 1; and ch. 14, sec. 351, effective January 2, 1978. --
Amended 1974, Ky. Acts ch. 299, sec. 2; and ch. 328, sec. 3. -- Amended 1972 Ky.
Acts ch. 168, sec. 6. -- Amended 1970 Ky. Acts ch. 222, sec. 2. -- Amended 1968
Ky. Acts ch. 144, sec. 1. -- Amended 1966 Ky. Acts ch. 255, sec. 266. -- Amended
1946 Ky. Acts ch. 163, sec. 1. -- Recodified 1942 Ky. Acts ch. 208, sec. 1, effective
October 1, 1942, from Ky. Stat. sec. 1403.

 

[Dandy Don]

No, your brother's children would NOT be considered heirs at law. Look again at the wording: it is the DECEDENT's heirs at law.

 

[justalayman]

Have to disagree with you DD. The children of his brother are heirs at law. The problem is the way it is worded it does not state if the children are entitled to the parents portion if the parent is deceased or if they have an individual claim. I believe that may be the OP's conundrum.

If they have a claim as children of the brother it seems as they would lose this claim because the brother cannot claim(possibly). If they have a seperate claim there is no reason they cannot exercise this claim.

quitclaim deed from the children, my brother and the money is deposited to them in his escrow account. I refuse to have a deed with their names

actually all a quitclaim deed does is release any claim you (the writer of the deed) may have against the property.So it would be a deed with the children and their dad giving up their rights to any claim. I can understand this part to avoid any future claims based on the fact you recieved no objections (I am actually assuming no responses as well). As far as putting proceeds in the lawyers escrow account, why would that be necessary if there is an estate account?

It seems as if you have already made the correct decision and got advice from another totally disinterested attorney. Call them back and ask if they will write the deed.