[Big Mac]

Solicitation of free (no expectations) legal advice for a neighbor and life-long friend (not close but definitely a friend)

Background: My neighbor's mother lived with her for 9 years after being diagnosed with breast cancer. My neighbor took care of her mother and did everything she could for her. In 2006 my neighbor's brother came up with a story that he was going to buy their mother's house, and he said to do that he was going to first take my neighbor's name of the title so that he would have the only title to it.

My neighbor friend wasn't legally sophisticated obviously and didn't suspect anything even with that red flag of him changing the title. She loved her brother and they were very close growing up, so she never thought he would do anything to harm her. He claimed he was going to pay their mother for the house right after changing the title but of course never paid anything for it. Their mother died in 2008. My friend also says that her brother changed life insurance so that only he would be the beneficiary.

The mother had no formal estate planning. My friend said her mother would have refused to sign a will or trust even if it had been presented to her - she simply had faith her children would do the right thing with her assets after she died.

The evidence my friend has is a holographic will from her mother stating that assets should be split between her son and daughter except for her jewelry, which she wanted her daughter to receive only (naturally).

My friend says she doesn't think the estate ever went through probate. She strongly doesn't think any new wills were ever created or signed because again, her mother didn't believe in formal wills. (I think it's possible he could have forged or falsified a will given all the other underhanded things he did, but she doesn't think so.)

My View: This is the first time in a long time I've regretted not having gone to law school (perhaps it's still in my future though). I have a prelaw undergrad background, a lot of practical lawyering experience and paralegal training, but IANAL. I really want to help this woman. She said she's tried contacting numerous lawyers and legal aid societies, but the furthest she's gotten is a $500 demand letter from an attorney in Los Angeles. That's it.

As some of you may know, my beloved grandmother passed away - she died about a year after my neighbor's mother. I have had to learn a lot about estates, trusts, estate accounting, etc. dealing with my grandmother's passing. So I know a good bit about how the process generally works. The difference is, though my grandmother had a three person team of marginally competent professionals to handle her estate, and although I have had to pick up a lot of their slack and move the process forward when they didn't know how to proceed to settle assets between beneficiaries (a process I'm still actively resolving practically by myself), I could not have possibly handled the strictly lawyer/court end of it by myself. My neighbor friend has none of that professional support and can't afford thousands in legal fees.

I can see it has really been devastating to my neighbor. Her husband wants her to give up and to stop thinking about it because he thinks it's a lost cause. And this is a family that has had a pretty rough experience, but the husband and wife have managed to stick it out. Our families have shown reciprocal kindness to each other over the years - small but significant gestures of friendship over decades. I desperately want to help her get some justice here. I think it's a clear case of probate fraud.

My strong assumption is that it should be relatively simple to trigger probate (assuming it wasn't fraudulently undertaken by the brother earlier) and to write affidavits attesting to the facts as they are. But what specific steps do we have to do to trigger probate? Would the court help her get this done? Should I start writing up a complaint (as in a lawsuit) based on templates I have available?

I know I can't be her lawyer. I know I can't represent her - she has to go in pro se if she can't find a lawyer. But I'm hoping I can help her through the process. The one downside is that perhaps it's more trouble than it's worth, or worse, if she sues him with my help and he counter-sues and intends to fight, she won't have the ability or inclination to fight it (I assume). I don't want to make this family's situation worse, but I feel compelled to act. It has been bothering me all evening since I spoke to her.

Help! (As if I don't have enough on my own plate!)

[ShortcutToMoncton]

Do you guys actually have "pre-law" undergrads in the States? Here in Canada, if someone claims to be in "prelaw" it's like saying "premed" - which means you're in political science and biochemistry/life sciences, respectively.

I'm not quite sure what the deal with the house is. Did you explain it correctly? Why was your neighbour on title to her mother's house? And if it was the mother's house, isn't the mother then still on title? And you say she did not die intestate - she has a holographic will. Did it name an executor? I suspect you may need to appoint your Registrar as executor, but I don't exactly know the particulars of the process down there. Either way, you'll first need to know if the holographic will is valid underneath your state's Wills Act or whatever you call it. If it isn't, then the mother will have died intestate, and I imagine you have intestate rules down there - more than likely, that both siblings get half.

Appointing/finding an executor for the estate is key here. Again, your Wills Act or your State's Rules of Court should probably deal with that sort of thing. I'd also be very surprised if your courts or Bar Society don't have helpful brochures explaining this process. Unfortunately I probably can't go much farther than that - hope you understand.

[Big Mac]

Very valuable information, thank you STM. I explained the situation to the best of my ability, aside from being a bit tired. I think I got every detail she conveyed to me down. My neighbor's name was on the title originally, along with her brother and her mother. That way the mother expected they would split the proceeds of it. But then he came up with the fraudulent story he was going to buy the house from the mother and somehow put himself solely on the title (how he accomplished this I don't understand), based on my understanding. I don't think she named an executor, but I haven't seen the holographic will. I definitely know that they are valid under California law though.

As for my reference to pre-law, I think you caught the meaning - I didn't mean it as an actual major but as you assumed, I majored in Political Science and took a number of law courses.

Again, thank you for the very helpful reply that helps orient me in the right direction to help this family. And I look forward to subsequent replies.

[ShortcutToMoncton]

Yeah, something happened that we don't understand/know. Sounds like there were 3 persons on title, and then 2. Somewhere along the line, documents were signed and registered to effect that change - what they say will probably be important. Possibly sounds like the house could be the most valuable thing that the mother owned (?), so that's something that will have to be determined.

[Big Mac]

Yes, that's the case. The house was the biggest asset. I think my neighbor mentioned $135,000 value three bedroom house. Nothing lavish. There were originally three people on the title (apparently) - the mother and her son and daughter - and the way my neighbor tells it at the end of the day only one remained - the son/brother. He told them he was going to pay the mother and got his name solely on the title without paying her a dime. If the mother was still on the title at the date of death, that would be significant, but even if not, I wonder aloud then:

1. Wouldn't the mother have had to sign off (and I assume a notarized signature) to give her son sole title to the house? Or could he have forged her name and just submitted it to the court?

2. If her holographic will states the house is to be sold and the proceeds divided, and he can't prove he purchased the house, doesn't my neighbor have a very strong claim that he committed title fraud or some other kind of wrongful, perhaps criminal act?

[ShortcutToMoncton]

Yeah, both the daughter and the mother would have had to convey their interest/title to the brother in document form, be it in a Deed of Conveyance or whatever you would call it down there, almost certainly for some amount of named funds. That might probably need to be registered but it depends on your titles system. Those documents would give you the info - if they for example validly transferred their interest/title for a nominal amount (with presumably a separate verbal promise that he'll "pay you more later"), well, then, unfortunately it gets much more difficult to help the trusting/gullible/naive/willfully blind/stupid.

If the document(s) say that he was buying the house for 125 grand for example, and no such money transfer was made, then I imagine the executor of her estate could take legal action to recover that debt owed to the estate.

However, I'd just like to be clear that I'm not a lawyer licensed to practice within any US state, I don't know your law in whatever state this is, and I'm not providing legal counsel here - I'm just offering what may or may not be helpful advice as pertains to the general wills/estates/probate system. I have to say this shit because you Americans will sue anybody. At the end of the day my friendly advice would be to find out as much information as you can, meaning the paper trail, and then make a decision as to whether you want to do nothing, or pony up for at the very least a first meeting with a lawyer.

[Atheist]

Did the mother and daughter sign a Quitclaim deed? If so I suspect she's SOL. Should be able to easily find out if a deed was registered.

[Big Mac]

The daughter never said anything about signing anything, but you know, I'm worried she may have. The brother may have persuaded her to sign a quitclaim based on the promise that he was going to pay the mother for the property later. Again, these aren't sophisticated people, and she and her mother trusted him at that point. That's the first thing I should have done. I have to look the property record up and see what the paper trail looks like.

So if I find that my friend did sign a quitclaim, she's pretty much out of gas, even if she was misled into signing it?

[SSharon]

Sorry to hear about your neighbor's situation Big Mac. I'm not licensed in California and I know their laws differ substantially from NY where I went to school so I won't even comment on anything legal. Let me send a few messages to people I know in your area and see if they can help. I'll get back to you by PM if I get a positive response from someone.

[Big Mac]

Wow that is fantasic, SSharon! I really appreciate it a lot. I'm just hoping this woman didn't screw herself over by signing a quitclaim deed, but the way the brother operated I'm very concerned she may have done just that along with her mother. It occurred to me to look up the property record, but I was so bothered by her description I had to get on here and write up the digest that is this thread.

Also, I imagine the estate laws are nearly identical between NY and CA, but I can understand that you don't want to give specific legal advice. Same applies to Shortcut. I was going to put a disclaimer on my first post that I recognize there's no warranty on any legal advice I'm getting here.

[SSharon]

Originally Posted by Big Mac 

Wow that is fantasic, SSharon! I really appreciate it a lot. I'm just hoping this woman didn't screw herself over by signing a quitclaim deed, but the way the brother operated I'm very concerned she may have done just that along with her mother. It occurred to me to look up the property record, but I was so bothered by her description I had to get on here and write up the digest that is this thread.

Also, I imagine the estate laws are nearly identical between NY and CA, but I can understand that you don't want to give specific legal advice. Same applies to Shortcut. I was going to put a disclaimer on my first post that I recognize there's no warranty on any legal advice I'm getting here.

No promises, since when it comes to legal advice on the Internet you get what you pay for, but I just sent a message now so let's hope for the best.

Also, NY law is a strange beast and has many exceptions to the rule that only apply here or in a small minority of states. This is also definitely an area where state laws tend to vary by a wide degree. For entertainment purposes only, take a look at the wikipedia page on holographic wills and follow the first reference. Holographic will - Wikipedia, the free encyclopedia Now compare what it says for California and for New York.

[olePigeon]

Len Tillem & Associates Contact

Or call his show directly from 1PM to 2PM PST.

KGO Newstalk 810 San Francisco

Len Tillem is a lawyer who specializes in probate and elder law. He gives FREE legal advice via email and his radio show. You should definitely contact him, this the perfect question to ask. You might get the quickest answer by calling into his radio show.

[ShortcutToMoncton]

First, get a little more information, especially regarding the house transfer(s) - that will help clarify some key unknowns.

[Big Mac]

Thank you for the tip, olePigeon. I'll check out the show.

Originally Posted by olePigeon 

Len Tillem & Associates Contact

Or call his show directly from 1PM to 2PM PST.

KGO Newstalk 810 San Francisco

Len Tillem is a lawyer who specializes in probate and elder law. He gives FREE legal advice via email and his radio show. You should definitely contact him, this the perfect question to ask. You might get the quickest answer by calling into his radio show.

[Athens]

I haven't read all the replies but if there was no will and no valid probate wouldn't California's laws on intestate apply in this situation?

MyStateWill.com | California Intestacy Laws


NM!! I missed a important line about the title being transferred.

[Athens]

Originally Posted by Big Mac 

Yes, that's the case. The house was the biggest asset. I think my neighbor mentioned $135,000 value three bedroom house. Nothing lavish. There were originally three people on the title (apparently) - the mother and her son and daughter - and the way my neighbor tells it at the end of the day only one remained - the son/brother. He told them he was going to pay the mother and got his name solely on the title without paying her a dime. If the mother was still on the title at the date of death, that would be significant, but even if not, I wonder aloud then:

1. Wouldn't the mother have had to sign off (and I assume a notarized signature) to give her son sole title to the house? Or could he have forged her name and just submitted it to the court?

2. If her holographic will states the house is to be sold and the proceeds divided, and he can't prove he purchased the house, doesn't my neighbor have a very strong claim that he committed title fraud or some other kind of wrongful, perhaps criminal act?

Under a Joint Tenancy setup, the mother could not sign off on anything and probate is not required. The surviving Tenant gets sold property rights. This overrides anything that is in Trust or in a Will. The exception would be if both joint tenants died simultaneously. A lawyer is really needed. If the original title before it was transferred to the son had joint tenancy in it, Im pretty sure you have a case.

[Big Mac]

You're saying joint tenancy would override a will? Is that really how joint tenancy works? I have to read up more on that subject. Edit: I'm reading up concurrent estate types on Wikipedia and it's interesting. I never was that interested in real estate law, but this is forcing me to understand and appreciate it more.

When I speak to my neighbor again and get the address of the house, do you think there's any ethical issue with posting the address on here so we can look at the titling together?

[Athens]

Originally Posted by Big Mac 

You're saying joint tenancy would override a will? Is that really how joint tenancy works? I have to read up more on that subject.

When I speak to my neighbor again and get the address of the house, do you think there's any ethical issue with posting the address on here so we can look at the titling together?

In California, I read that on a couple different legal advice sites and lawyer sites under the faq sections and stuff. But I think it has to be clearly in the original deed that it was a Joint Tenancy. If that was the case one person can't just transfer the house to some one else. The other tenancy partner gets 100% of everything. In the case of mutual death then Wills or intestate laws apply.

I would get permission from neighbor before posting something like that, perhaps use photobucket or flickr and password protect it and give out in PMs the passwords to those you want to look at it.

One of the links I have in history about the subject but I had found better sources on my phone when I was out smoking last. http://www.ca-trusts.com/jointtenancy.html

[Athens]

I should add, California also has a Tenants in Common deed along with Joint Tenancy. If its a Tenants in Common then its a totally different ball game. Property does not automatically transfer.

California Civil Code Section 683.2 deals with how a Joint Tenancy can be legally terminated. I can't link to the document because its a private database im going through. But google it lots come up.

[ShortcutToMoncton]

Athens, all you're doing is useless speculating. Coming up with a thorough examination of real property ownership is pointless, unless you're just doing it for the purpose of personal enlightenment. You're just going in circles - it's a "forest for the trees" issue.

Big Mac, if you want to help this woman, and you don't yet want to get a lawyer involved, you'll need to find out what happened to the house: how did it go from having all 3 on title, to being solely in the brother's name?

If that was done in a "legit" manner - and by that I mean that it was appropriately papered by the brother, even if there's more to the background story than meets the eye - then my gut feeling is that trying to prove that shady business went on will devolve into a he-said she-said dispute that results in only the lawyers winning in the end. It's the age-old problem with legal transactions conducted between family members: having to say "yes I signed all these documents but he told me he wouldn't actually do this" is obviously a difficult struggle for all parties, including the judge.

[Athens]

excuses me buddy, but isn't that what any one is doing responding to a post like this, speculating. Isn't that what your doing too. I pointed Big Mac in a direction to check that could return the most favourable results based on the information he has already provided so in all politeness don't address me with such a retarded comment!

[BLAZE_MkIV]

He claimed he was going to pay their mother for the house right after changing the title but of course never paid anything for it.

If she can find any proof of this or get him to admit it, she can get him on breach of (verbal) contract.

[ShortcutToMoncton]

As previously pointed out, one of the three involved parties is deceased, and if title was indeed legally transferred, it was probably papered. It's pretty tough to make the "I know I signed all my rights away but they said they'd pay me later" argument. There's a reason verbal contracts are often worth the paper they're written on, especially in the face of a written contract saying otherwise....

[Big Mac]

Originally Posted by ShortcutToMoncton 

Big Mac, if you want to help this woman, and you don't yet want to get a lawyer involved, you'll need to find out what happened to the house: how did it go from having all 3 on title, to being solely in the brother's name?

That's the central point. I have to get the address of this house so that I can find out more, and I also need to ask her if she or her mother signed anything that would have taken their rights to the property away. I didn't get to see her yesterday so I'll have to see if I can catch her today.

Well, at least I know you guys can give me some pretty good feedback when it comes to handling the real estate issues of my own that my family will be handling to conclusion soon. Thank you so much for all the knowledge and input.

[Big Mac]

Like we suspected and feared, the bastard was shrewd enough to get my neighbor to sign away her rights to the property, based on the claim that he couldn't get a loan to pay the mother for the value of the property unless my neighbor's name was off it. I'm so sorry she fell for that.

I told her that makes things a lot harder, which she said she understood. She did say that her mother wrote in her holographic will that her son had not paid her for the house as promised and that she should get ownership of it back because of that, but if the mother wasn't on the title anymore either (and it doesn't look like she is), I'm guessing that doesn't help at all. Damn it. She told me just now that at their mother's funeral she asked her brother what he planned to do to deal with the house, and he told her "well it's my house now." She also said she tried to tell her mother that there would be problems with the house after she died, and the mother didn't believe there would be any problem of ownership for her because she didn't believe her son would do anything wrong.

So it looks like she's out of gas to me. I was thinking I could write up a lawsuit and she could threaten to sue him over it as an inducement to come to the table and work something out, but that's a lot of work for a long shot. I hope my neighbor's story serves as a valuable lesson for someone out there: When it comes to any substantial property/money, don't trust the verbal promises or good intentions of family members or close friends. And if your rights aren't in writing, they don't exist.

[Athens]

that sucks

[ShortcutToMoncton]

Originally Posted by Athens 

excuses me buddy, but isn't that what any one is doing responding to a post like this, speculating. Isn't that what your doing too. I pointed Big Mac in a direction to check that could return the most favourable results based on the information he has already provided so in all politeness don't address me with such a retarded comment!

You'll notice that none of your comments to that point had any bearing. Like I said - useless speculating. Whether it's a joint or common tenancy or something else entirely is pointless to this thread, and just a lot of research for nothing.

Originally Posted by Big Mac 

She did say that her mother wrote in her holographic will that her son had not paid her for the house as promised and that she should get ownership of it back because of that, but if the mother wasn't on the title anymore either (and it doesn't look like she is), I'm guessing that doesn't help at all.

You need to find out how title was transferred. What you have here is the first written indication that a separate verbal contract existed (flimsy as it is - obviously, the mom could've made it up entirely).

But if for example the sister and mother transferred their interest for $1, and no further money exchanged hands, and both the sister and the mother's will claim that title was transferred pursuant to a verbal contract...well then, there's clearly something missing. Why would both the sister and mother transfer title for nothing in return? A court might be sympathetic in that situation.

Of course, if there's also a written "quit claim" from both then there's a problem. But since it might be relatively easy to get the actual document, you probably should at least take a quick look at the deed of transfer.

[Big Mac]

Using the site PropertyShark I was able to get some good title information, but their online paper-trail only goes back a few years. I've been very impressed with PropertyShark because it has given me better free info on real estate than any other site I've seen. Does anyone else have free or low cost online recommendations for this type of research?

I believe that if nothing else, my neighbor's brother did commit real estate fraud. I'm still going to try to help her in some way. I gave to her a two-page brochure about real estate fraud from the Los Angeles Sheriff's website. A problem is that I don't have a lot of real estate title experience. When I asked her if she signed anything when she agreed to have her name taken off, she told me he took her to Re/Max to have her sign off; I'm assuming he fooled her into signing a quitclaim deed. I think that as far as title goes he probably covered his bases, but there was fraud involved for him to get that accomplished.

[ghporter]

It sounds like the best you can do is what you've already done: help your friend establish what the problem is. Is there an element of fraud? Maybe. Or maybe the brother is also a victim through some other mechanism. I think it's high time for your friend to retain counsel to investigate her interests in this property. It's funny how other people involved in an issue suddenly change their behavior when an attorney begins asking questions; sometimes it's "holy cow! I'm screwed now!!!" and sometimes it's "ya know, I was wondering what the legal side of this was going to look like..." Either way, it sounds like the issue is so muddy that it needs professional un-muddying.

[Athens]

Is the property valued enough to bother with a legal battle?

[andi*pandi]

What a scumbag that brother is.

[Big Mac]

Originally Posted by ghporter 

It sounds like the best you can do is what you've already done: help your friend establish what the problem is. Is there an element of fraud? Maybe. Or maybe the brother is also a victim through some other mechanism. I think it's high time for your friend to retain counsel to investigate her interests in this property. It's funny how other people involved in an issue suddenly change their behavior when an attorney begins asking questions; sometimes it's "holy cow! I'm screwed now!!!" and sometimes it's "ya know, I was wondering what the legal side of this was going to look like..." Either way, it sounds like the issue is so muddy that it needs professional un-muddying.

Originally Posted by Athens 

Is the property valued enough to bother with a legal battle?

It's valued enough that it matters to her and her family. The problem is that even if it were worth an uphill legal battle, my neighbor doesn't have the resources for it. This is a working class family. If I were ridiculously wealthy I'd hire a lawyer on retainer for her, but I'm not at that level (yet). Aside from a letter from an attorney that cost her $500, she couldn't find any other lawyer help. I'm thinking the best I can do at this point is write out her version of the events, accompanied by any documentation she has, have her notarize it and then start sending it as a binder to government agencies, philanthropic law firms and also to the brother's door. Maybe it will catch some empowered person's interest. But since I found out she took her name off the property, I don't know how much time it makes sense to devote to her situation - ostensibly he's got things pretty well locked up. It's just so upsetting that she didn't speak to anyone first before signing things away.

[BLAZE_MkIV]

Send it to Judge Judy? There may also be potential for criminal fraud charges if she was incorrectly informed about what she was signing.

[Athens]

The reason I asked if the property was valued enough to make it worth while is because any kind of lengthy legal battle over it "could" easily exceed the value of the property. The stresses involved for no or little gain might not make it worth while. She took her own name off the property, that pretty much ends any legal battle over the property. I would focus on what took place to get her name off the property and explore those options to invalidate that. If she is owed money from that original agreement she might be able to put a lean on the property to force payment? But I suspect that would be its own legal battle too.

[Big Mac]

I understand. It's not a great situation. I'm going to see what resources I can find to help her, but she knows her expectations should be low because of what occurred.

[Athens]

The last words from the greatest Prime Minister Canada never had:

"My friends, love is better than anger. Hope is better than fear. Optimism is better than despair. So let us be loving, hopeful and optimistic. And we’ll change the world." Jack Layton July 18, 1950 – August 22, 2011.

I'll just add to that, Never give up hope, things always work out in the end. So be loving hopeful and optimistic and you will do your neighbor well.

[ShortcutToMoncton]

Oh god. I'm sick of that beautifully calculated sign-off note. Yes, sue me, I'm a cynic - but that's the biggest load of feel-good political tripe we'll see this month. Seriously. Read it. "Hope is better than fear"? Is that the message Layton wanted me to appreciate in 2011? I'm already sick and tired of everyone repeated those two lines. There are much better ways to appreciate a good political leader rather than quoting feel-good platitudes.

Also, Big Mac would consider Layton an abomination. So there's that.