On Jul 2, 7:38 am, Stuart Bronstein <spamt...@lexregia.com> wrote:
> Mike Jacobs <mjacobs...@gmail.com> 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
* * *
> In California, where OP is located, no personal representative has
> any powers until appointed by a judge, normally at least 30 days
> after filing for probate.
OK, thanks for the input from a CA lawyer, Stu. I'm assuming that after the appointment of executor by the court takes place, the executor then can do whatever he needs to do re: paying bills without waiting for further court approval. A 30-day wait to begin paying bills should cover most situations anyway.
> In unusual cases when a need is demonstrated, a special administrator
> can be temporarily appointed right away to take care of things that
> need to be done before the hearing for appointment of the personal
> representative can take place. It is often the same person, but need
> not be.
I'm glad to see there is an available mechanism in CA to get bills paid right away in those rare situations where 30 days is too long.
> > Why, in your case, is there supposed to be an actual court
> > hearing? Is there some contested issue?
>
> In California all petitions for probate involve a scheduled hearing.
> If there are no objections filed the order is preapproved and no
> appearance is necessary. But that only happens the day before the
> scheduled hearing date.
Now that makes more sense. They schedule the hearing to hold a space open on the court's busy docket, just in case, but it is cancelled if no one has raised a timely objection that would require resolution by means of a hearing.
> > 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.
>
> So you'd think. But there several times hearings are required to be
> scheduled. Again if there is no dispute no appearance may be
> necessary. But it has to be scheduled and the opportunity to object
> must be given.
While yielding to Stu's superior knowledge of CA procedure, it sounds like the end result is the same: if there are no objections raised, and no unusual issues, the probate process goes forward to a conclusion with few, if any, actual hearings taking place, and it can all be done by mail and telephone.
> > 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?
>
> From the time notice of probate is given, creditors have four months
> to present claims. If they don't, they are precluded. If they do,
> the personal representative decides to pay them or not.
So far, sounds reasonable, and just like MD, except here the creditors have 6 months to present a claim after the public "notice to all creditors" is placed in the newspaper.
Am I right in continuing to assume that, beginning immediately after the court appointment of an executor, the executor has full power to accept an undisputed creditor's claim and pay those bills from estate funds? And that there is no requirement for the creditor to wait until after the deadline for all creditors to have announced their presence? That is the day before the scheduled 4-month hearing, if I understand Stu right, which I believe OP said was only 70 days away now in his case, meaning he is already past the appointment stage and in fact already holds the powers of executor.
I can understand the law wanting to protect not-yet-announced creditors from having the estate be depleted to the point where there is not enough left to pay them all, in which case the early-announced creditors would get a windfall of 100% payment while the later ones would have to accept partial payment, or go thru the unwieldy process of forcing the early creditors to disgorge their preferences, if that option is even available, or sue the executor directly for breach of his legal duty to protect creditors. But what if there are plenty of assets in the estate to assure payment of all anticipated creditors, and small things like utility bills, etc. come up that can be easily paid, but which may raise annoying problems such as utility cutoff if not paid promptly?
> If not, the
> creditor has the right to sue. All that takes time. And generally
> no distributions are allowed until all creditor issues are resolved.
Is payment of an undisputed, early-announced creditor considered a distribution in CA? Here in MD, we use that word only to refer to payments from the estate to its legatees and residual beneficiaries, not to creditors. Of course, it is within the executor's discretion to withhold payment for a time, if he thinks there may not be enough funds left in the estate to continue paying all creditors, after making the contemplated payment. If it is a close call, that is if the bill is for an amount that would take a significant chunk out of the estate, as opposed to pocket change relatively speaking, the better part of discretion would seem to be to err on the side of caution and withhold payment, to avoid the risk of the executor being held personally liable, both here and (I imagine) in CA.
> > [If there is no cash available in the estate to pay mortgage bills]
> > 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.
>
> In my experience it's generally better to sell the real estate. If
> one or more of the heirs wants to buy it, great. But don't put them
> into a position where they are unwilling partners. It can cause lots
> of trouble.
Agreed 100%, in case I wasn't clear enough on that point. OP should definitely take the desires of the heirs into account and not force them into being unwilling partners, a situation where one of them would eventually be likely to need to go to court to seek partition of the property in a separate suit anyway.
> >> 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.
In addition to my previous reply to the OP Mr. Gary's concerns, another thought occurs to me. The law is, indeed, occasionally quite unwieldy. But it is so, not because lawyers want to arrogate to themselves a secure priesthood for interpreting esoteric scriptures in rituals where lay people dare not tread; it is because the lawyers (who, mostly, are the ones who write the law) are concerned with protecting the interests of their clients, and "the people" they represent do indeed have diverse, often conflicting interests in any matter.
There are at least 2 sides to any dispute, and believe me, it is the clients, not the lawyers, who usually make it that way. As many here have noted, the cumbersome steps of probate (CA being a bit more convoluted than some) are designed to protect creditors, even more than to ensure fair distriibution among heirs.
How fair would it be if all debts effectively abated at death of the debtor -- which would happen if an executor could just transfer all the decedent's assets to her heirs easily while ignoring creditors? Great, you say? But if that happened routinely, the modern credit system -- together with the affluent commercial life it makes possible -- would completely dry up, and we'd be right back to a medieval system of guilds and small craftsmen and individual merchants, such as existed before that great legal invention, the Corporation, came into existence (with, IIRC, the "East India Company" as its first great example). That legal revolution is in fact what made possible the industrial revolution, involving enterprises too large for one man or a small group to take on.
If the law is sometimes unwieldy, maybe that's because it's not a good idea for it to be wielded too easily, by anybody, at the expense of other interested parties. Think on that.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Wednesday, August 15, 2012
Estoppel vs. company reneging on employment offer
On Jul 2, 7:37 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> If I remember correctly, the OP has not given us any indication that
> there was an offer of a specific period of employment. Therefore, I
> can't see how the oft-mentioned issues of estoppel (if that's the
> right word) and turning down other offers based on this offer have
> any effect whatever.
Estoppel, an equitable concept, comes into play only if there isn't a straight legal basis for claiming damages, such as for breach of contract. The equity courts, themselves originally a church court completely separate from the legal, or king's court, centuries ago began providing remedies to petitioners whose remedies at law were inadequate, and still today (even after the merger of law and equity courts in most USA states) the general rule is that equity will not step in if there is an adequate remedy at law. Otherwise, the plaintiff would simply rely on the contract and make a claim at law, where his proof would be easier and his available range of damages greater.
To win an estoppel claim, the plaintiff has to show that he changed his position to his detriment in reliance on a representation or promise by defendant, such that even if the promise was not a binding contract, plaintiff can recover the costs he suffered as a result. Note that this is generally limited to the incidental expenses incurred (moving, placing ads looking for another job, etc.) in an amount that would put the plaintiff back in the same position he would have been if he had not acted in reliance on the broken promise; it does not allow him to claim the much broader range of damages (lost profits, the difference between the contract price and the amount paid, consequential damages for the zillion-dollar job he turned down to take this one) available to a plaintiff alleging breach of contract.
In MD, and I suspect in most states, an agreement of employment _is_ a contract, just one that (unless stated) has no definite or minimum duration and can be terminated by either party at any time for any reason not invidiously discriminatory, or for no reason (aka "employment at will"). The consideration, and the subject of the agreement is, that the employee agrees to spend his time and effort working for the employer, in return for which the employer agrees to pay wages or salary in a certain amount. The trouble with pursuing OP's example as a contract claim isn't because employment isn't a contract, it's because there are no contract damages if the employer did in fact pay the employee the agreed wages for any period of time, and then unilaterally changed the terms of continued employment (as he has a legal right to do). The employee, if that happens, then has the legal right to either (1) quit or (2) accept the new terms, forming a new contract (also of indefinite length) on the new terms.
The fact that an employee in most states can go to his state labor dept. for assistance in collecting unpaid wages does not disprove that the employment agreement is a contract. Rather, it shows that, by statute, employment agreements are contracts that the state is particularly interested in enforcing for a variety of reasons, at least in terms of payment for work already done.
Not the least of those reasons is that the state does not want to wind up with its citizens going on the dole unnecessarily, and having the taxpayers support an indigent, cheated employee when that is really the employer's obligation. The cynical would say the state's main motive is to protect their own treasury more than to protect the rights of downtrodden workers. But the result is the same.
> Morally, I agree the employer is obligated; but
> legally the employer is quite free to change the offered salary at
> any time before or after the start of employment, regardless of
> whether the employee has turned down other offers or incurred moving
> expenses.
Correct. But if an employee incurs significant moving costs and other incidental expenses to come take a job before the employer then reduces the offered pay by a significant amount within a short time, he may well have an estoppel claim. It depends, of course, on what the court or jury finds to be fair, based on what they consider "significant", and "short." The whole point of an equity claim is, a sharp dealer doesn't get to screw somebody just because their victim's legal rights fall between the cracks. Equity makes sure that the person who would be left without an adequate remedy at law is still treated fairly, even if he won't be able to get the full measure of damages he could get if he _did_ have a viable legal claim for breach of contract.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> If I remember correctly, the OP has not given us any indication that
> there was an offer of a specific period of employment. Therefore, I
> can't see how the oft-mentioned issues of estoppel (if that's the
> right word) and turning down other offers based on this offer have
> any effect whatever.
Estoppel, an equitable concept, comes into play only if there isn't a straight legal basis for claiming damages, such as for breach of contract. The equity courts, themselves originally a church court completely separate from the legal, or king's court, centuries ago began providing remedies to petitioners whose remedies at law were inadequate, and still today (even after the merger of law and equity courts in most USA states) the general rule is that equity will not step in if there is an adequate remedy at law. Otherwise, the plaintiff would simply rely on the contract and make a claim at law, where his proof would be easier and his available range of damages greater.
To win an estoppel claim, the plaintiff has to show that he changed his position to his detriment in reliance on a representation or promise by defendant, such that even if the promise was not a binding contract, plaintiff can recover the costs he suffered as a result. Note that this is generally limited to the incidental expenses incurred (moving, placing ads looking for another job, etc.) in an amount that would put the plaintiff back in the same position he would have been if he had not acted in reliance on the broken promise; it does not allow him to claim the much broader range of damages (lost profits, the difference between the contract price and the amount paid, consequential damages for the zillion-dollar job he turned down to take this one) available to a plaintiff alleging breach of contract.
In MD, and I suspect in most states, an agreement of employment _is_ a contract, just one that (unless stated) has no definite or minimum duration and can be terminated by either party at any time for any reason not invidiously discriminatory, or for no reason (aka "employment at will"). The consideration, and the subject of the agreement is, that the employee agrees to spend his time and effort working for the employer, in return for which the employer agrees to pay wages or salary in a certain amount. The trouble with pursuing OP's example as a contract claim isn't because employment isn't a contract, it's because there are no contract damages if the employer did in fact pay the employee the agreed wages for any period of time, and then unilaterally changed the terms of continued employment (as he has a legal right to do). The employee, if that happens, then has the legal right to either (1) quit or (2) accept the new terms, forming a new contract (also of indefinite length) on the new terms.
The fact that an employee in most states can go to his state labor dept. for assistance in collecting unpaid wages does not disprove that the employment agreement is a contract. Rather, it shows that, by statute, employment agreements are contracts that the state is particularly interested in enforcing for a variety of reasons, at least in terms of payment for work already done.
Not the least of those reasons is that the state does not want to wind up with its citizens going on the dole unnecessarily, and having the taxpayers support an indigent, cheated employee when that is really the employer's obligation. The cynical would say the state's main motive is to protect their own treasury more than to protect the rights of downtrodden workers. But the result is the same.
> Morally, I agree the employer is obligated; but
> legally the employer is quite free to change the offered salary at
> any time before or after the start of employment, regardless of
> whether the employee has turned down other offers or incurred moving
> expenses.
Correct. But if an employee incurs significant moving costs and other incidental expenses to come take a job before the employer then reduces the offered pay by a significant amount within a short time, he may well have an estoppel claim. It depends, of course, on what the court or jury finds to be fair, based on what they consider "significant", and "short." The whole point of an equity claim is, a sharp dealer doesn't get to screw somebody just because their victim's legal rights fall between the cracks. Equity makes sure that the person who would be left without an adequate remedy at law is still treated fairly, even if he won't be able to get the full measure of damages he could get if he _did_ have a viable legal claim for breach of contract.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
"Tough Love" organization recommended
On Jul 2, 7:37 am, shy <Ann_Hedo...@hotmail.com> wrote:
[OP has a violently out-of-control 17 yo kid]
> I do not have money to hire a lawyer, and don't know what to do at
> this point. I'm afraid he's going to hurt himself or someone else.
> He needs therapy and possibly rehab, but the law has tied my hands,
> making home life miserable for everybody else here.
Nobody should face this kind of crisis alone. I highly recommend contacting, and joining, your local Tough Love chapter. They are a national self-help and support group for parents of seriously unruly children of all ages, but mainly teens and twentysomethings. They should be listed by that name in your phone book. You will meet weekly, in confidence of course, with other local parents with similar experiences and can learn from them and lean on them for help. Often, outside speakers come in from the cops, social services, and other resources to provide guidance. Your more experienced fellow members will also have been thru the quirks of local law on these issues with their own children and can guide you in the most effective way to work with the system as it exists to get the services and support you and your son need. Good luck,
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
[OP has a violently out-of-control 17 yo kid]
> I do not have money to hire a lawyer, and don't know what to do at
> this point. I'm afraid he's going to hurt himself or someone else.
> He needs therapy and possibly rehab, but the law has tied my hands,
> making home life miserable for everybody else here.
Nobody should face this kind of crisis alone. I highly recommend contacting, and joining, your local Tough Love chapter. They are a national self-help and support group for parents of seriously unruly children of all ages, but mainly teens and twentysomethings. They should be listed by that name in your phone book. You will meet weekly, in confidence of course, with other local parents with similar experiences and can learn from them and lean on them for help. Often, outside speakers come in from the cops, social services, and other resources to provide guidance. Your more experienced fellow members will also have been thru the quirks of local law on these issues with their own children and can guide you in the most effective way to work with the system as it exists to get the services and support you and your son need. Good luck,
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
California bankrupt intestate estate, part 2
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
[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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Third party complaint situation in sci-fi novel
On Jun 29, 7:57 am, DarkProtoman <Protoman2...@gmail.com> wrote:
> Is it possible to have a three way lawsuit? Like A sues B for genetic
> tampering, B impleads C for the wrongful euthanization of the products
* * *
> all hypothetical--. Has this sort of thing --three parties suing and
> impleading and countersuing each other, not the catpeople stuff-- ever
> happened in the US?
Yes. Given an existing lawsuit between plaintiff A and defendant B, B can bring C into the case as a "third-party defendant" to the extent B claims that C may be liable to B (on any grounds) for all or part of A''s claim against B. But if B's claim against C is for a completely unrelated matter, B has to bring a separate suit against C so as not to muck up trial of A's case against B with irrelevant red-herring issues.
> What would the name of the case be? A vs. B vs. C?
Yes. Or, for short, A v. B
> What would the names of the parties be?
Plaintiff A, Defendant/Third-Party Plaintiff B, and Third-Party Defendant C
> BTW, if the "genetic tampering resulting in the creation of a feline
> subspecies of homo sapiens" actually happened, would the Supreme Court
> of the United States and possibly the International Court of Justice
> get involved?
As in any case involving private parties, SCOTUS would only get involved if they chose to accept "certiorari" (discretionary appeal) when petitioned to do so by the losing party of a lower-court decision. A's original claim against B would have to start out in a trial-level court of general jurisdiction, either a state court or (if there is some basis for asserting Federal jurisdiction) in US District Court. In some cases involving administrative regulations (e.g. FDA, or Dept of Agriculture) the process would have to start at the agency level, and the losing party could appeal to US Dist Ct only after exhausting all available administrative remedies.
I'm not aware of any basis on which the ICJ could claim jurisdiction. What, human rights violations? War crimes? Your guess is as good as mine as you write what appears to be a science-fantasy novel.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Is it possible to have a three way lawsuit? Like A sues B for genetic
> tampering, B impleads C for the wrongful euthanization of the products
* * *
> all hypothetical--. Has this sort of thing --three parties suing and
> impleading and countersuing each other, not the catpeople stuff-- ever
> happened in the US?
Yes. Given an existing lawsuit between plaintiff A and defendant B, B can bring C into the case as a "third-party defendant" to the extent B claims that C may be liable to B (on any grounds) for all or part of A''s claim against B. But if B's claim against C is for a completely unrelated matter, B has to bring a separate suit against C so as not to muck up trial of A's case against B with irrelevant red-herring issues.
> What would the name of the case be? A vs. B vs. C?
Yes. Or, for short, A v. B
> What would the names of the parties be?
Plaintiff A, Defendant/Third-Party Plaintiff B, and Third-Party Defendant C
> BTW, if the "genetic tampering resulting in the creation of a feline
> subspecies of homo sapiens" actually happened, would the Supreme Court
> of the United States and possibly the International Court of Justice
> get involved?
As in any case involving private parties, SCOTUS would only get involved if they chose to accept "certiorari" (discretionary appeal) when petitioned to do so by the losing party of a lower-court decision. A's original claim against B would have to start out in a trial-level court of general jurisdiction, either a state court or (if there is some basis for asserting Federal jurisdiction) in US District Court. In some cases involving administrative regulations (e.g. FDA, or Dept of Agriculture) the process would have to start at the agency level, and the losing party could appeal to US Dist Ct only after exhausting all available administrative remedies.
I'm not aware of any basis on which the ICJ could claim jurisdiction. What, human rights violations? War crimes? Your guess is as good as mine as you write what appears to be a science-fantasy novel.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
California bankrupt individual dies
On Jun 27, 6:28 pm, "Robert M. Gary" <N70...@gmail.com> wrote:
> I have a friend who died before her chapter 7 bankruptcy was
> completed.
Dear Mr. Gary: If this is the same person for whom you were nominated by her WIll to act as her executor, as you mentioned in your other post today to MLM, I strongly suggest the complexity of the situation as well as your own unfamiliarity with the process makes it an extremely good idea for you to seek paid legal counsel.
All anyone on the Net can do is point you in a general direction. It would be foolish for you to actually take steps with potentially serious financial consequences, in naive reliance on such comments as "advice". You don't want to do anything rash, but you also don't want to blab all the details of your case on a public forum, and the only sensible way to protect both those interests is to seek confidential legal counsel to act on the estate's behalf and guide you in detail through this process. For that reason I hesitate to even begin to answer your specific questions. Make that appointment now, and I wish you good luck.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I have a friend who died before her chapter 7 bankruptcy was
> completed.
Dear Mr. Gary: If this is the same person for whom you were nominated by her WIll to act as her executor, as you mentioned in your other post today to MLM, I strongly suggest the complexity of the situation as well as your own unfamiliarity with the process makes it an extremely good idea for you to seek paid legal counsel.
All anyone on the Net can do is point you in a general direction. It would be foolish for you to actually take steps with potentially serious financial consequences, in naive reliance on such comments as "advice". You don't want to do anything rash, but you also don't want to blab all the details of your case on a public forum, and the only sensible way to protect both those interests is to seek confidential legal counsel to act on the estate's behalf and guide you in detail through this process. For that reason I hesitate to even begin to answer your specific questions. Make that appointment now, and I wish you good luck.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
California probate executor
On Jun 27, 6:28 pm, "Robert M. Gary" <N70...@gmail.com> wrote:
> If I'm appionted the PR of an estate (the will directs me as the
> executor), can I charge the estate for out-of-pockets expenses
> (mortgage payments during probate, utilities, etc)?
Of course the estate should pay directly for such things -- they shouldn't come out of _your_ personal pocket, unless the estate has no liquid assets right now (bank account, stocks, etc.) which can be used to pay ongoing expenses. Even then, you may have to sell (or refinance) some of the estate assets to get enough money to take care of this.
Once you get appointed by the Court as executor (which is what makes it official, even though your being nominated to act as such in your decedent's Will is what makes you the first in line for the job), you will have control over all those assets and can use them to manage the estate and pay such expenses (but not, of course, to put any of that money into your own pocket, unless you are one of the Will's beneficiaries. Even then, you will not get any of the estate's assets for your own use until final distribution when probate is closed after all the debts and expenses have been paid, OR if you propose an interim partial distribution that would leave enough in the estate to take care of all creditors and anticipated expenses AND after the proposed distribution of assets to yourself and other beneficiaries gets approved by the Court.
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. The fee will be a relatively minor expense, if you in fact are the one who does all the time-consuming footwork such as digging up and inventorying the assets, etc., and following a lawyer's advice will keep you from making any potentially expensive bonehead mistakes. The lawyer's fee will come out of the estate, not out of your own pocket.
> Do I list this as
> a PR expense (which really seems to be made for filing fees) or do I
> list myself as a creditor of the estate? This is California.
Oy vey. You really do have no idea. Do yourself and your relatives a favor and make an appointment with an estate administration lawyer to help you through this process. You will be glad you did. Good luck,
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> If I'm appionted the PR of an estate (the will directs me as the
> executor), can I charge the estate for out-of-pockets expenses
> (mortgage payments during probate, utilities, etc)?
Of course the estate should pay directly for such things -- they shouldn't come out of _your_ personal pocket, unless the estate has no liquid assets right now (bank account, stocks, etc.) which can be used to pay ongoing expenses. Even then, you may have to sell (or refinance) some of the estate assets to get enough money to take care of this.
Once you get appointed by the Court as executor (which is what makes it official, even though your being nominated to act as such in your decedent's Will is what makes you the first in line for the job), you will have control over all those assets and can use them to manage the estate and pay such expenses (but not, of course, to put any of that money into your own pocket, unless you are one of the Will's beneficiaries. Even then, you will not get any of the estate's assets for your own use until final distribution when probate is closed after all the debts and expenses have been paid, OR if you propose an interim partial distribution that would leave enough in the estate to take care of all creditors and anticipated expenses AND after the proposed distribution of assets to yourself and other beneficiaries gets approved by the Court.
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. The fee will be a relatively minor expense, if you in fact are the one who does all the time-consuming footwork such as digging up and inventorying the assets, etc., and following a lawyer's advice will keep you from making any potentially expensive bonehead mistakes. The lawyer's fee will come out of the estate, not out of your own pocket.
> Do I list this as
> a PR expense (which really seems to be made for filing fees) or do I
> list myself as a creditor of the estate? This is California.
Oy vey. You really do have no idea. Do yourself and your relatives a favor and make an appointment with an estate administration lawyer to help you through this process. You will be glad you did. Good luck,
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
New York intestate estate
On Jun 27, 6:28 pm, c...@country-day.com wrote:
> both of my parents died intestate.
First of all, where did your MOM reside, when she died first? That's which state's law will apply to HER estate. When the first parent died, that parent's separate property should have been distributed then, according to the intestacy laws of her state (I am not a NY lawyer and do not know what those laws say and at this point don't even know if NY law is the one that would apply).
OTOH if in fact your Mom had no separate property of her own (i.e.if it was all property held jointly with your Dad) then it all passed automatically to Dad when Mom died. You will have to consult a local lawyer and bring all the facts and documents you have for him to review, if you want a meaningful opinion on whether any of Mom's estate should have been distributed to her children at that time, but my guess is, none, since there was a surviving spouse and no will.
> My father, the last to die, died 5
> years ago in new your state, where my brother still resides. I who
> live in a different state have been after my brother for years to give
> me any information about my parents property. He has refused.
Letting this drag on "for years" was not a good idea on your part. Why do you assume this was all your brother's job? You, as much as your brother, were a prospective heir -- and if you knew there was no will, you should have known that you and your brother had equal standing to look into matters legally and get this wrapped up. (With no written document there is no possibility either of you could have been "disinherited" or written out of a will that doesn't exist.)
Even though you live in another state (How far away are you? Is it that hard to come back to the ancestral home once in a while to see for yourself how things are going? How much property is at stake anyway?) that is no excuse for dropping the ball and leaving it all up to your brother, especially where you must have suspected long ago that your brother was either (1) neglecting to do anything, which is bad enough, or (2) affirmatively helping himself to your parents' property, to your detriment as his equal heir, which is even worse.
> I recently found out that the property is going up for auction due to
> unpaid taxes. I have also found out that the property never went to
> probate!
Sure sounds like bro never did anything (Choice 1). Of course, he may _also_ have been pursuing Choice 2 -- have you kept any tabs at all on what happened to the rest of the property, besides the real estate? Is the furniture, jewelry, etc. still there in the house, untouched? If not, make Bro give you an accounting. If he refuses, _you_ should be the one to open probate, and then you can have the court make him do that and disgorge any ill-gotten gains. Your local lawyer can help you do that; even if you are out of state; your local lawyer will associate with a lawyer in NY to file all the papers, etc. as well as to investigate and inventory the property to trace its whereabouts.
You say, "the property", as thought the house was all there was to the estate. Didn't your Dad have bank accounts, IRAs, cash under the mattress, Krugerrands in the attic, stocks and bonds, or something else liquid and possibly income-producing? What was he living on, besides Social Security? Cars, boats, valuable art, jewelry, antique furniture? A working business that was generating income and has value? Crops, livestock, tools of his trade? Anything he owned that has value is part of his estate, not just the house. Do you have any idea what was there? If not, you're pretty late getting on the ball to find out. Best hope it's not _too_ late, but you won't know until you ask. Make that appointment to consult a local lawyer NOW, while you're thinking about it, or you'll put it off for another few years and then it WILL be too late.
> I am willing to pay the taxes but if I do this I want
> absolute control off all the property since my brother has failed in
> all aspects of this matter.
Don't do anything without consulting a local lawyer first, but do that quickly, or you may lose legal rights. You're probably better off taking control of the estate (through your lawyer of course), getting the taxes paid (from Dad's bank account, if Bro hasn't already purloined it) and proceeding with probate. At the end of that process, after deducting all expenses of estate administration as well as your Dad's legitimate debts (including ongoing morgage and tax payments on the house, utilities, etc. as well as his funeral bills and medical expenses) what is left over will be divided equally between you and your brother (assuming you 2 are the only heirs). You are also entitled to be paid a reasonable fee (subject to court approval) for acting as administrator of the estate, if you do so, or if you hire an independent third party (such as a lawyer) to do so.
A far riskier approach would be to let the house go to a sheriff's sale for the unpaid tax, show up at the sale, and buy it on your own account at a below-market-value price. Like I said, don't try this at home, boys and girls, without specific, detailed legal counsel from someone you're _paying_ to advise you and who knows all the facts. That approach would also do nothing at all toward helping you resolve what heppened to the REST of Dad's property.
> However, he refuses to cooperate. Is
> their a way for me to get all his rights revoked as far as the
> property goes?
He still gets to be an heir, even if he's been a lousy administrator; but it sounds like BOTH of you were lousy administratofs so far, allowing the matter to be neglected for so long. Your lawyer can help sort this out.
Don't worry about not being able to pay the lawyer up front: check first, fo course, when you call to make an appointment, but most estate-administration lawyers will wait (or are legally required to wait) until they get court approval, before they can take a fee, and even then it comes out of the estate's funds, not yours. Good luck,
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> both of my parents died intestate.
First of all, where did your MOM reside, when she died first? That's which state's law will apply to HER estate. When the first parent died, that parent's separate property should have been distributed then, according to the intestacy laws of her state (I am not a NY lawyer and do not know what those laws say and at this point don't even know if NY law is the one that would apply).
OTOH if in fact your Mom had no separate property of her own (i.e.if it was all property held jointly with your Dad) then it all passed automatically to Dad when Mom died. You will have to consult a local lawyer and bring all the facts and documents you have for him to review, if you want a meaningful opinion on whether any of Mom's estate should have been distributed to her children at that time, but my guess is, none, since there was a surviving spouse and no will.
> My father, the last to die, died 5
> years ago in new your state, where my brother still resides. I who
> live in a different state have been after my brother for years to give
> me any information about my parents property. He has refused.
Letting this drag on "for years" was not a good idea on your part. Why do you assume this was all your brother's job? You, as much as your brother, were a prospective heir -- and if you knew there was no will, you should have known that you and your brother had equal standing to look into matters legally and get this wrapped up. (With no written document there is no possibility either of you could have been "disinherited" or written out of a will that doesn't exist.)
Even though you live in another state (How far away are you? Is it that hard to come back to the ancestral home once in a while to see for yourself how things are going? How much property is at stake anyway?) that is no excuse for dropping the ball and leaving it all up to your brother, especially where you must have suspected long ago that your brother was either (1) neglecting to do anything, which is bad enough, or (2) affirmatively helping himself to your parents' property, to your detriment as his equal heir, which is even worse.
> I recently found out that the property is going up for auction due to
> unpaid taxes. I have also found out that the property never went to
> probate!
Sure sounds like bro never did anything (Choice 1). Of course, he may _also_ have been pursuing Choice 2 -- have you kept any tabs at all on what happened to the rest of the property, besides the real estate? Is the furniture, jewelry, etc. still there in the house, untouched? If not, make Bro give you an accounting. If he refuses, _you_ should be the one to open probate, and then you can have the court make him do that and disgorge any ill-gotten gains. Your local lawyer can help you do that; even if you are out of state; your local lawyer will associate with a lawyer in NY to file all the papers, etc. as well as to investigate and inventory the property to trace its whereabouts.
You say, "the property", as thought the house was all there was to the estate. Didn't your Dad have bank accounts, IRAs, cash under the mattress, Krugerrands in the attic, stocks and bonds, or something else liquid and possibly income-producing? What was he living on, besides Social Security? Cars, boats, valuable art, jewelry, antique furniture? A working business that was generating income and has value? Crops, livestock, tools of his trade? Anything he owned that has value is part of his estate, not just the house. Do you have any idea what was there? If not, you're pretty late getting on the ball to find out. Best hope it's not _too_ late, but you won't know until you ask. Make that appointment to consult a local lawyer NOW, while you're thinking about it, or you'll put it off for another few years and then it WILL be too late.
> I am willing to pay the taxes but if I do this I want
> absolute control off all the property since my brother has failed in
> all aspects of this matter.
Don't do anything without consulting a local lawyer first, but do that quickly, or you may lose legal rights. You're probably better off taking control of the estate (through your lawyer of course), getting the taxes paid (from Dad's bank account, if Bro hasn't already purloined it) and proceeding with probate. At the end of that process, after deducting all expenses of estate administration as well as your Dad's legitimate debts (including ongoing morgage and tax payments on the house, utilities, etc. as well as his funeral bills and medical expenses) what is left over will be divided equally between you and your brother (assuming you 2 are the only heirs). You are also entitled to be paid a reasonable fee (subject to court approval) for acting as administrator of the estate, if you do so, or if you hire an independent third party (such as a lawyer) to do so.
A far riskier approach would be to let the house go to a sheriff's sale for the unpaid tax, show up at the sale, and buy it on your own account at a below-market-value price. Like I said, don't try this at home, boys and girls, without specific, detailed legal counsel from someone you're _paying_ to advise you and who knows all the facts. That approach would also do nothing at all toward helping you resolve what heppened to the REST of Dad's property.
> However, he refuses to cooperate. Is
> their a way for me to get all his rights revoked as far as the
> property goes?
He still gets to be an heir, even if he's been a lousy administrator; but it sounds like BOTH of you were lousy administratofs so far, allowing the matter to be neglected for so long. Your lawyer can help sort this out.
Don't worry about not being able to pay the lawyer up front: check first, fo course, when you call to make an appointment, but most estate-administration lawyers will wait (or are legally required to wait) until they get court approval, before they can take a fee, and even then it comes out of the estate's funds, not yours. Good luck,
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Legal malpractice
On Jun 27, 6:28 pm, phil-news-nos...@ipal.net wrote:
> Suppose a legal firm screws up a client civil case by some mean (pick a
> scenario). The client might be plaintiff or defendant. The client loses
> a lot of money, or loses the possibility of collecting a lot of money.
> So the client hires a different law firm and sues the first law firm for
> whatever this could be classified under.
It's called "professional negligence" or "legal malpractice".
> Could the first law firm argue that the client didn't really have a winable
> case to begin with, in order to minimize their damage, and expect such an
> argument to be well considered by the court?
That's exactly what he'd have to do. A legal malpractice case almost always requires proof of a "case within a case" because the wronged plaintiff in the malpractice case (the defendant lawyer's former client, regardless of whether he was a defendant or a plaintiff in the underlying case) has to prove, as part of his damages case, what kind of result he _would_ have been able to get if the first lawyer had not screwed up, and unless that number has already been reduced to some liquidated amount, the jury in the malpractice case will have to decide what kind of verdict the jury in the underlying case would have awarded and then convert that into a number to award the malpractice plaintiff.
> Would the client (via its new
> law firm) need to carry out much or all of the arguments of the original
> (lost by default) case just to should would _could_ have been won, or what
> losses _could_ have been avoided?
Yes. And I might add that, when the defendant in the dock is an incompetent lawyer rather than some equally incompetent but poor and ordinary driver or landlord or small businessman (as in the underlying case), those arguments very often resonate quite a bit better with a jury and lead to even higher damage awards than the same jury might have been willing to award against the other poor zhlub, just because (a) he's a lawyer and (b) he's a lawye who screwed up, even though of course the judge would instruct the jury not to let that play any conscious role in their deliberations.
> What if, in the course of litigating the 2nd case against the first law
> firm, it became obvious from evidence in this case, that was never seen by
> the court in the first case, that the opposing party of the original case
> had been acting in willfully illegal ways that would have triggered either
> extended awards, or possibly even criminal charges? Can the 1st law firm
> be held liable for those extended awards? Could this still trigger criminal
> charges agains the original opposing party if it could have had the original
> case gone forward to expose the evidence?
I'm not going to even try to answer that because it made my head hurt to read it. Way too convoluted for me to make any sense of that scenario.
> Would any of this be different if the 2nd law firm's investigation found
> that the 1st law firm was somehow complicit with the original opposing
> party or its law firm (e.g. a conflict of interest against its client)?
If the first lawyer was knowingly colluding with the other side to act against his own client's interests, that is not negligence (defined as an unreasonable, inadvertent error or oversight that causes harm), rather, it is a breach of the lawyer's fiduciary duty to his client and probably also fraud if he covers it up. The lawyer who merely screws up even though his heart was in the right place may wind up paying just as much money for the harm he caused (or his insurance will), but the lawyer who knowingly defrauds or cheats his client is likely to also get disbarred and lose his law license.
> Are there situations where a default judgment can be set aside because of
> the misconduct by the losing party's legal representation, even though the
> default winning party had nothing to do with it?
Yes, there are, and if the initial, inadvertent negligence of the first lawyer caused a default or a dismissal, the doctrines of "exhaustion of remedies" as well as "mitigation of damages" would probably require the losing party (the one contemplating suing his lawyer for screwing up) to first give that lawyer every reasonable chance to reverse the ruling and make it right, in which case "no harm, no foul". Realistically, if the client jumps the gun and fires the first lawyer and brings in the second lawyer to sue the first before that happens, you can betcha the first lawyer (or his malpractice insurer of course) will deny the claim on that grounds and, if the case comes to trial, the defense will argue that the SECOND lawyer screwed things up by not letting the first lawyer finish what he started when he still had a chance to pull his fat out of the fire.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Suppose a legal firm screws up a client civil case by some mean (pick a
> scenario). The client might be plaintiff or defendant. The client loses
> a lot of money, or loses the possibility of collecting a lot of money.
> So the client hires a different law firm and sues the first law firm for
> whatever this could be classified under.
It's called "professional negligence" or "legal malpractice".
> Could the first law firm argue that the client didn't really have a winable
> case to begin with, in order to minimize their damage, and expect such an
> argument to be well considered by the court?
That's exactly what he'd have to do. A legal malpractice case almost always requires proof of a "case within a case" because the wronged plaintiff in the malpractice case (the defendant lawyer's former client, regardless of whether he was a defendant or a plaintiff in the underlying case) has to prove, as part of his damages case, what kind of result he _would_ have been able to get if the first lawyer had not screwed up, and unless that number has already been reduced to some liquidated amount, the jury in the malpractice case will have to decide what kind of verdict the jury in the underlying case would have awarded and then convert that into a number to award the malpractice plaintiff.
> Would the client (via its new
> law firm) need to carry out much or all of the arguments of the original
> (lost by default) case just to should would _could_ have been won, or what
> losses _could_ have been avoided?
Yes. And I might add that, when the defendant in the dock is an incompetent lawyer rather than some equally incompetent but poor and ordinary driver or landlord or small businessman (as in the underlying case), those arguments very often resonate quite a bit better with a jury and lead to even higher damage awards than the same jury might have been willing to award against the other poor zhlub, just because (a) he's a lawyer and (b) he's a lawye who screwed up, even though of course the judge would instruct the jury not to let that play any conscious role in their deliberations.
> What if, in the course of litigating the 2nd case against the first law
> firm, it became obvious from evidence in this case, that was never seen by
> the court in the first case, that the opposing party of the original case
> had been acting in willfully illegal ways that would have triggered either
> extended awards, or possibly even criminal charges? Can the 1st law firm
> be held liable for those extended awards? Could this still trigger criminal
> charges agains the original opposing party if it could have had the original
> case gone forward to expose the evidence?
I'm not going to even try to answer that because it made my head hurt to read it. Way too convoluted for me to make any sense of that scenario.
> Would any of this be different if the 2nd law firm's investigation found
> that the 1st law firm was somehow complicit with the original opposing
> party or its law firm (e.g. a conflict of interest against its client)?
If the first lawyer was knowingly colluding with the other side to act against his own client's interests, that is not negligence (defined as an unreasonable, inadvertent error or oversight that causes harm), rather, it is a breach of the lawyer's fiduciary duty to his client and probably also fraud if he covers it up. The lawyer who merely screws up even though his heart was in the right place may wind up paying just as much money for the harm he caused (or his insurance will), but the lawyer who knowingly defrauds or cheats his client is likely to also get disbarred and lose his law license.
> Are there situations where a default judgment can be set aside because of
> the misconduct by the losing party's legal representation, even though the
> default winning party had nothing to do with it?
Yes, there are, and if the initial, inadvertent negligence of the first lawyer caused a default or a dismissal, the doctrines of "exhaustion of remedies" as well as "mitigation of damages" would probably require the losing party (the one contemplating suing his lawyer for screwing up) to first give that lawyer every reasonable chance to reverse the ruling and make it right, in which case "no harm, no foul". Realistically, if the client jumps the gun and fires the first lawyer and brings in the second lawyer to sue the first before that happens, you can betcha the first lawyer (or his malpractice insurer of course) will deny the claim on that grounds and, if the case comes to trial, the defense will argue that the SECOND lawyer screwed things up by not letting the first lawyer finish what he started when he still had a chance to pull his fat out of the fire.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Postal service loses insured jewelry package
On Jun 27, 6:28 pm, aspa...@giganews.com wrote:
> An insured package containing valuable gold jewelry and high-powered
> binoculars was mailed from LA to NY on May 21. Never arrived.
If you have the shipper's receipt from USPS showing the package was sent and insurance was paid for, you have a slam dunk case on the "liability" half of your proof. What the carrier is demanding is advance notice of what your proof will be of the "damages" half of your case. If this comes to trial, how will you prove the value of your loss?
You make a big deal out of not having receipts for 30-year-old goods. No one would expect you to, and even if you did, that would say little or nothing about the current value of your jewelry. A recent appraisal by a qualified jeweler would have helped, but even that is not essential. Do you have any photos of the jewelry and binocs in question, either sitting there on plain red velvet to document their existence and size/design for insurance purposes, or showing someone actually wearing or using them? That would help, but is also not strictly necessary. What you will need to do in any event, even with these documents in support (if you have them), is to get on the witness stand and testify under oath that (a) you shipped certain items of jewelry, which you will then describe, and they never arrived; (b) the items belong to you, and (c) the items are worth at least $500 in total. For pre-suit purposes, it would probably suffice if you give UPS a sworn and notarized affidavit to that effect, along with whatever other documentation you happen to have.
As a side note to others with valuable, "real" jewelry (don't bother for your costume jewels, foax), many homeowners' insurance policies require you to separately list and schedule any such valuables if you want them to be covered by your policy (which of course any reasonable person would) and they often suggest getting a periodic appraisal, and/or taking pictures, to establish the value of the specially scheduled items. You're taking too big a chance (and it's _your_ risk, not theirs) if you don't do so even if they don't strictly require it.
> I only insured the whole package for $500, though it is worth more.
Then $500 is the max you can get. The carrier's contract limits their liability, and is enforceable. If you felt the package was worth more, you should have paid the minimal additional charge to insure it for more. You didn't, which meant you, not the carrier, are the one who has to bear that risk of additional loss.
> Am I screwed?
To the extent your loss exceeds $500, yes.
> I went online to USPS. At this URL
>
> http://www.usps.com/insuranceclaims/domestic.htm
>
> they require evidence of value.
I suggest you can provide that by sworn affidavit, although any other documents or photos you have would help.
If you send that and they come back and tell you it's not enough, ask the contact person you're dealing with what else it is they need to see before they can make a decision.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> An insured package containing valuable gold jewelry and high-powered
> binoculars was mailed from LA to NY on May 21. Never arrived.
If you have the shipper's receipt from USPS showing the package was sent and insurance was paid for, you have a slam dunk case on the "liability" half of your proof. What the carrier is demanding is advance notice of what your proof will be of the "damages" half of your case. If this comes to trial, how will you prove the value of your loss?
You make a big deal out of not having receipts for 30-year-old goods. No one would expect you to, and even if you did, that would say little or nothing about the current value of your jewelry. A recent appraisal by a qualified jeweler would have helped, but even that is not essential. Do you have any photos of the jewelry and binocs in question, either sitting there on plain red velvet to document their existence and size/design for insurance purposes, or showing someone actually wearing or using them? That would help, but is also not strictly necessary. What you will need to do in any event, even with these documents in support (if you have them), is to get on the witness stand and testify under oath that (a) you shipped certain items of jewelry, which you will then describe, and they never arrived; (b) the items belong to you, and (c) the items are worth at least $500 in total. For pre-suit purposes, it would probably suffice if you give UPS a sworn and notarized affidavit to that effect, along with whatever other documentation you happen to have.
As a side note to others with valuable, "real" jewelry (don't bother for your costume jewels, foax), many homeowners' insurance policies require you to separately list and schedule any such valuables if you want them to be covered by your policy (which of course any reasonable person would) and they often suggest getting a periodic appraisal, and/or taking pictures, to establish the value of the specially scheduled items. You're taking too big a chance (and it's _your_ risk, not theirs) if you don't do so even if they don't strictly require it.
> I only insured the whole package for $500, though it is worth more.
Then $500 is the max you can get. The carrier's contract limits their liability, and is enforceable. If you felt the package was worth more, you should have paid the minimal additional charge to insure it for more. You didn't, which meant you, not the carrier, are the one who has to bear that risk of additional loss.
> Am I screwed?
To the extent your loss exceeds $500, yes.
> I went online to USPS. At this URL
>
> http://www.usps.com/insuranceclaims/domestic.htm
>
> they require evidence of value.
I suggest you can provide that by sworn affidavit, although any other documents or photos you have would help.
If you send that and they come back and tell you it's not enough, ask the contact person you're dealing with what else it is they need to see before they can make a decision.
--
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
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Subscribe to:
Posts (Atom)