On Jun 30, 7:56 am, "Robert M. Gary" <N70...@gmail.com> wrote:
[I wrote:]
> > Once you get appointed by the Court as executor ... you
> > will have control over all those assets and can use them to manage the
> > estate and pay such expenses
>
> Yes, but only after the hearing which ends up being about 70 days
> after death.
Sir, are you sure? I'm guessing that, as it is in most states, the moment you open probate you will be (or have already been) issued Letters of Administration (or whatever the law calls them in your state) by the Court, authorizing and appointing you as PR of the estate, and from that moment on, you as PR have control over and access to the estate funds to pay ongoing expenses. No hearing, no waiting to pay creditors. In that case, as long as you keep track of every penny and properly account for it in the end, everything can be done very simply and quickly. You just won't be able to make a final distribution to the heirs until the statutory time period (whatever it is in your state) for creditors to file their claims against the estate has passed, to make sure no legitimate creditors are being cut off too soon.
Why, in your case, is there supposed to be an actual court hearing? Is there some contested issue? In that case, I renew my suggestion you need a lawyer to help you represent the estate. I can't imagine why you would need to attend a court hearing at all during the probate process if this is a simple administrative probate with no disagreements among heirs and no unusual issues. I'm wondering if maybe you left something out of your post that would help clarify that issue. I'm not suggesting you have to post those facts publicly in reply, but it is something for you to consider as to why many of us are suggesting that confidential, paid legal advice in your case would be a good idea.
> Few creditors are willing to wait that long.
Would you care to tell me what other options you believe they have, if in fact the court has disallowed any such payment until after a hearing over 2 months away? (Which I will assume is what you meant and that you understood correctly, for discussion purposes here.) Assuming in addition that these are debts owed only by the person who died, and not jointly owed debts or those for which any creditor has a security interest in particular property, or maybe even in those cases too, my guess is the law _says_ they have to wait. Tough for them, but it protects you, and the estate's assets, during the time you are not _allowed_ to pay them from estate assets. Why would you want to put up your own money to pay those debts now if you don't have to?
Also, either the estate has some money or the equivalent (bank accounts, debts receivable, stocks, valuable tangible property that can be sold and converted to cash), or it doesn't. I'm guessing, based on your response on the death-in-bankruptcy thread (assuming this is the same case), that the only substantial asset of the estate is a house subject to a mortgage, and that there is more than one potential heir.
If the only property this estate has is the decedent's house, and the decedent still owes some money on it (you mentioned a mortgage) or even if she just had some ongoing utilities, taxes, etc. to pay on it, you are NOT going to be able to pass the house along to the decedent's heirs without doing one of 2 things: (1) putting up the money to pay those expenses yourself during probate, with no assurance you will ever have a way to get paid back unless you (as executor) sell the house to convert it to cash and distribute the cash to the heirs, after reimbursing your own expenses with court approval; or (2) asking the putative heirs to put up the cash, in anticipation of eventually inheriting the house, but that's a bad idea for more reasons than I care to think of.
Your only other option AFAICS is to sell the house, using your powers as executor, the sooner the better, and distribute the cash to the heirs after paying off the decedent's debts from the proceeds. Do you have some basis to think the heirs would prefer to each be a part-owner of one house, and each be responsible for the ongoing mortgage, or would they rather each have cash they could use as a down payment on their own house or anything else they want? You are not obligated to, but it would IMO be a good idea to consider the heirs' wishes in that regard.
> > If you have no clue what you are doing (which, if I may be frank, it
> > sure sounds like), you need to hire a lawyer to help you with the
> > estate administration.
>
> I still refuse to believe our legal system is that broken. Yes, if
> Bill Gates dies someone better get an attorney. However, if an old
> lady dies with a clear will who just wants to give her house to her
> kids, needs an attorney, then lawyers have truly stolen the legal
> system from the public.
Mr. Gary, no offense was intended, although you seem to have taken some. If you read through my posts in the MLM archives over many years, there are quite a few times where I and others have suggested there is no need to hire a lawyer for a simple, administrative distribution of an estate, as long as the heirs are all in agreement and there are no complex issues. In your case, if it is indeed the one with the death-during-bankruptcy issue, I felt that was complex enough to require a lawyer's assistance.
Indeed, in your post on that thread you indicate you had consulted a lawyer, received an opinion, but were unsure the lawyer knew what she was talking about because it sounded too simple. What kind of reliable advice do you think _any_ of us here at MLM could give you for free, knowing nothing about the facts of your case or how they relate to the law in your state, where you distrust the conclusions of your own paid attorney? Seems to me the only sensible answer anyone here can give you, and I hope you would take it, is to get a second opinion from another, paid, attorney. At least if that attorney screws up and gives you bum advice, you can sue her on her malpractice policy. If you take a wild ass guess at the right answer and screw up on your own, you would have no one to look to but yourself, and may wind up getting in trouble beyond your expectations if you inadvertently violate the law in the way you handle the probate; even if acting in all good faith, you still need to know what you're doing, and the fact that you are asking the most simple, basic questions here about e.g. where you can get the money to pay ongoing utilities and mortgage bills, indicates to me you are completely unfamiliar with the process. Thus, no matter how intelligent and goodhearted you are, you may wind up making a serious mistake if you don't act on legal guidance.
> If someone with several advanced degrees and
> some academic legal training cannot do this, our legal system has been
> taken from us. That would imply that our legal system is truly in a
> sad, sad state. Our legal system should serve the people, not
> attorneys.
Mr. Gary, I am not suggesting that you should give up any active role as executor and just turn it all over to an attorney. All I'm saying is, while you as executor can surely use your own time and abilities to locate and inventory all the decedent's assets, pay creditors (and possibly even decide which ones do not need to be paid, although a lawyer's advice is handy for that), talk to her heirs and figure out what they want in terms of final distribution (cash, or part-ownership in a house) and fill out the necessary forms (which your attorney can then review fairly quickly to make sure you didn't misstate something or leave something important out), you seem to have a lot of questions about the legalities of various things, and the natural thing to do in that case is to hire a lawyer, not to take over the case, but to be there when you need it and fade into the background when you don't. I noted previously that the cost for this option is likely to be minimal since you only call the lawyer when you need advice and you (the estate, I mean, not you personally) are only paying for his or her actual time you use. Be assured you are not going to be able to get the same level of confidence in any answers you may glean from your posts here as to anything close to your situation's specific facts.
If you still feel like doing it on your own, go right ahead. I wish you good luck and hope there are no unexpected bumps or potholes in the process you face. But if there are, don't say we didn't warn you.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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