Hello- I'd appreciate some responses from any experts regarding Will and Testament.
My mother is elderly and has some real estate interests in properties in Maryland. Exactly what her shares are is yet to be determined in court. She does not want to discuss these issues now for fear of retaliation by the other party (her son and sister). Can she write up a will in which she assigns another person to "fight" for her shares once she passes away ? Can this party represent her and fight for everything she was entitled to but never had a chance to claim it ? Many thanks.

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Originally Posted by moonlite

Hello- I'd appreciate some responses from any experts regarding Will and Testament.
My mother is elderly and has some real estate interests in properties in Maryland. Exactly what her shares are is yet to be determined in court. She does not want to discuss these issues now for fear of retaliation by the other party (her son and sister). Can she write up a will in which she assigns another person to "fight" for her shares once she passes away ? Can this party represent her and fight for everything she was entitled to but never had a chance to claim it ? Many thanks.

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No, she cannot - a Will disposes of your possessions.

If she leaves the shares - or her interest in them - to someone, that person will have to conduct the fight out of that person's own pocket. The estate will not pay those expenses - at least in NYS.

As far as retaliation - no one knows what a Will says unless someone tells them. Wills are confidential, between the testator and the Attorney.

If I understand you, there is current litigation to determine who owns what percent of these properties, is that correct?

If so, your mom can leave her share of the properties to someone in her will, but the executor of the estate would be charged with continuing the litigation to determine what that is. The estate can then be used to finance this fight.

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Originally Posted by ScottGem

If I understand you, there is current litigation to determine who owns what percent of these properties, is that correct?

If so, your mom can leave her share of the properties to someone in her will, but the executor of the estate would be charged with continuing the litigation to determine what that is. The estate can then be used to finance this fight.

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I'm not so sure - I think the potential shares are "willed" to someone and then it's that person's fight. I don't think you can burn up the estate (and everyone else's shares) fighting this single fight to benefit one or two out of a class of distributees.

Interesting legal question - off to find out (I hope).

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Originally Posted by JudyKayTee

Interesting legal question - off to find out (I hope).

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Yes it is interesting. I'm basing my opinion that we are dealing with ongoing litigation. Also, since the shares can't be distributed until the litigation is finalized, then the estate has to continue the fight.

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Originally Posted by ScottGem

Yes it is interesting. I'm basing my opinion that we are dealing with ongoing litigation. Also, since the shares can't be distributed until the litigation is finalized, then the estate has to continue the fight.

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No question arguments on both sides - still researching.

I know, for example, that if in my Will I assign a debt to you (say someone owes me a lot of money, I assign the repayment to you) and the creditor does not pay it's your individual responsibility to collect, not the estate's on your behalf.

Still searching.

Wow thank you for your replies ! I thought I won' get any response. Yes, I'd love to know the aswer to this. There is no litigation yet. My mother is terrified of taking anybody to court. She is hoping these people whose shares are very well and legally defined will give her at least something if any of these properties is sold while she's alive. She is determind to go to court, however, if this does not happen. And if there is no action taken on these properties while she's alive, she definitely want to assign a third party to continue the fight and claim whatever she was entitled to. It is intresting that she already made it clear that, in her Will, she will ask that whatever is recoverd in her name be distributed equally among all her kids. It goes to show you the true heart and goodness of this woman !

What is the issue on these properties?

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Originally Posted by JudyKayTee

I know, for example, that if in my Will I assign a debt to you (say someone owes me a lot of money, I assign the repayment to you) and the creditor does not pay it's your individual responsibility to collect, not the estate's on your behalf.

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I would agree with that. In that case there is a clear asset that is being clearly distributed to an heir. My point is that the asset in this case is in question and it would be up to the executor to determine what the asset is before distribution.

Since this issue has generated such great responses, I will try to pick your brains by providing some more info. Ok, my father passed away and he was the owner of these properties. He did not leave a Will (I know... very stupid. If he only knew what mess we're in now). We found out through a recent inspection of all the deeds that none of these proporties has my mother's name on it - not even my father's name anymore. Everyone of them has either his sister or son on the deed and then it says "et al", which I believe means "and others". We believe that since my mother was married to him for the longest time (served him well and raised all his kids) she must be entitled to "something". We believe that if these issues go to court, whether she is dead or alive, that the court will award her a nice share even though unfortunately she was ignored. Why my father did not put his act together and treat her right is beyond me. Leaving us without a Will was definitely asking for trouble. It appears that he could not look beyond his financial arrangements with his sister and son and look after the one person who gave him more than anybody else - his wife !

Ok, first, Was your mother married to your father at the time of death? Second, how were the deeds listed prior to his death? Third who was responsible for changing the deeds after his death? Was his estate probated at all? What state did this occur in? What surviving children were there?

In most states when someone dies intestate, the wife is entitled to one half to 2/3 of his estate with the balance divided up among surviving offspring or others. Unless someone else was listed on those deeds as joint tenants with right of survivorship, then someone committed a fraud in reworking those deeds.

If that happened, then mom should get an attorney immediately to research how that happened. She needs to do this before they sell the property and its too late.

Hello moon:

I've been reading with interest. Now, my 2 cents.

From what I gather, these properties were either given or sold to his son and his sister while he was alive. Since your father doesn't own them, your mother has no claim on them. Therefore, she can't will something she doesn't have.

We don't know the circumstances of the transfer. If your mother thinks the transfer was fraudulent, then she needs to protect her rights by hiring a lawyer and making her claim. She might be able to make her claim in the name of her heirs, and should she die before the claim is settled, her children MAY still have an interest. Truly, I don't know. These are things that can only be answered by an attorney familiar with ALL the details.

The obvious question is where was your mother when your father transferred the property? What state did she reside in? Hopefully, she's from a community property state. I don't know if that fact would help much, but it can't hurt.

excon

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Originally Posted by excon

Hello moon:

I've been reading with interest. Now, my 2 cents.

From what I gather, these properties were either given or sold to his son and his sister while he was alive. Since your father doesn't own them, your mother has no claim on them. Therefore, she can't will something she doesn't have.

We don't know the circumstances of the transfer. If your mother thinks the transfer was fraudulent, then she needs to protect her rights by hiring a lawyer and making her claim. She might be able to make her claim in the name of her heirs, and should she die before the claim is settled, her children MAY still have an interest. Truly, I don't know. These are things that can only be answered by an attorney familiar with ALL the details.

The obvious question is where was your mother when your father transferred the property? What state did she reside in? Hopefully, she's from a community property state. I dunno if that fact would help much, but it can't hurt.

excon

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OP refers to the other parties as "her son and sister." Does she mean her sister and her sister's son?

I have absolutely no idea what the situation is - and now I'm more confused than ever (if that's possible).

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Originally Posted by moonlite

wow thank you for your replies ! I thought I won' get any response. Yes, I'd love to know the aswer to this. There is no litigation yet. My mother is terrified of taking anybody to court. She is hoping these people whose shares are very well and legally defined will give her at least something if any of these properties is sold while she's alive. She is determind to go to court, however, if this does not happen. And if there is no action taken on these properties while she's alive, she definitely want to assign a third party to continue the fight and claim whatever she was entitled to. It is intresting that she already made it clear that, in her Will, she will ask that whatever is recoverd in her name be distributed equally among all her kids. It goes to show you the true heart and goodness of this woman !

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A Will - at least in NYS - cannot address "what if's." If there is no litigation she cannot make arrangements in case there is litigation.

Is she entitled to this property by Will or in some other way or this just something that someone "might" give her out of the kindness of their hearts?

Moon,
As you can the information you have provided so far is insufficient. So please answer the questions we've raised so we can advise further. But I do agree with excon, we can only advise so much. To truly straighten this out your mom will need an attorney

I guess it is safe to assume that this situation is very complicated, which is why the responses have stopped ? I would welcome any thoughts on this, or else my next stop would be the attorney's office to seek some advice. Thanks for your inputs.

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Originally Posted by moonlite

I guess it is safe to assume that this situation is very complicated, which is why the responses have stopped ? I would welcome any thoughts on this, or else my next stop would be the attorney's office to seek some advice. Thanks for your inputs.

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I think the responses have stopped because the panel needs more info about what this about - and everything that can be said without additional info has been said.

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Originally Posted by moonlite

Hello- I'd appreciate some responses from any experts regarding Will and Testament.
My mother is elderly and has some real estate interests in properties in Maryland. Exactly what her shares are is yet to be determined in court. She does not want to discuss these issues now for fear of retaliation by the other party (her son and sister). Can she write up a will in which she assigns another person to "fight" for her shares once she passes away ? Can this party represent her and fight for everything she was entitled to but never had a chance to claim it ? Many thanks.

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OK, you guys are killing me but truly awesome. I love this exchange !

Yes, my mother was married to my father at the time of death - the most loyal wife you can find anywhere. The deeds prior to his death were listed in my father's name and "et al". We are pretty sure the only one responsible for this transfer is my brother whose name now appears on more than 90% of them. No, the estate was no probated at all. All the properties are located in Maryland. My father has 8 surviving children. None of them was contacted prior to the transfer. I hope we are getting somewhere, and thanks again.

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Originally Posted by moonlite

ok, you guys are killing me but truly awesome. I love this exchange !

Yes, my mother was married to my father at the time of death - the most loyal wife you can find anywhere. The deeds prior to his death were listed in my father's name and "et al". We are pretty sure the only one responsible for this transfer is my brother whose name now appears on more than 90% of them. No, the estate was no probated at all. All the properties are located in Maryland. My father has 8 surviving children. None of them was contacted prior to the transfer. I hope we are getting somewhere, and thanks again.

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You're right - NOW we're getting somewhere.

Do I have this right - there was property owned by your father and "et al." We don't know exactly who "et al" was - ? Your father's children AND your mother? Your father's children and NOT your mother? Just your brother?

Now 90% of the Deeds are in the name of - your brother?

There was no Will. There was no probate proceeding.

If four people own property one of the four (for example, your brother) cannot simply Deed the property over to himself without the signatures of the other three. Is that what happened?

Now we're cooking!

(I've got to tell you how much I enjoyed your post and attitude - half the World gets hostile when anyone asks questions, trying to figure out what the situation is.)

Well, thank you for the kind words ! The way I look at it, I'd rather get whatever information I can from folks who genuinely care and are interested than spend 10 minutes on the phone with a cold-hearted lawyer and pay him at least $100. I hope none of you is a lawyer :). But I know eventually I will need one anyway.

Ok, I do not know who the "et al" refers to frankly. The deeds do not explain it any further. I know it was not me, my mother or any of my sisters or brother. Even if we - his other children and wife- were not listed on the deeds as "partial owners", and since he did no leave a Will to exclude any of us from any of these properties after his death, don't we have the right to force these properties into probate so everyone's share can be legally determined ? I think we're getting even closer, ha ?