taking from estate before probate

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Latest post 05-02-2007 6:25 PM by HatTrick. 6 replies.
  • 04-28-2007 3:05 AM

    • j0405
    • Not Ranked
    • Joined on 10-20-2006
    • Posts 11

    taking from estate before probate

    Hi, I have an ongoing issue regarding my son's fathers death. We never married, our son lived with me, we shared legal and I had the main physical custodial residence. Any way, the father was ill, and found out he was terminal 2 months before he passed. He was told he had 6 months. He was in the process of writing up a will, I was checking in on my son, worried about him and noticed paper with about 3 headings on, I presume was starting a will. Anyway, the dads brother, took over things while dad was in hospice, and he handled the arrangements (i'm sure he had health care poa) but the brother also took over disbursing money and possessions that he knew would go to the other children (4, 18 and over) and the dads car, which dad told our son he could have, the uncle took and titled in his name (the uncles name) and took money and told me he put the money into an account in his (uncle and wifes) name with our son as beneficiary. Non of this went thru probate as I was expecting it to have been done, and the uncle says he was the executor. (obviously he thinks this is correct and I said he was wrong and he said I know nothing). So, now, my son needs $600 to get his license, he is 16.5 now, and he asked uncle for it but uncle wants me to pay half. Now, there is 9000 in this account, and I can't afford even half of the $600, so my son can't get his license. Also, he won't give the car to my son until he gets his license. He told me he gave the other children their money (all over 18 from a previous marriage). Uncle also took the boat and truck and titled it to himself. Also, gun collection, all of the pictures of our family, etc. So all of this happened since the death, july 2006. Now here we are, April 2007, he sends papers to my son asking court to be appointed and open the probate case, saying the estate is only $1467. I called probate and they say I can not do anything about the vehicle, does uncle have to list all the things he has done so far? Can I contest and ask for everything I know of to be listed on the inventory? Sorry so long, just trying to be clear. Thanks for being here.
  • 04-28-2007 11:26 AM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,151

    re: taking from estate before probate

    If Uncle was the official executor then that means the will is on at the courthouse and he was issued letter of administration.

    Go look up fathers file and see what was officially done

    If its not on file then its 99.9% likley that what Uncle did was incorrect and he was never officially hte executor...

    Since your son is not of age I don't know if you can act on his behalf to seek control (and reconstruction) of dads estate via intestacy or if its even cost effective for small sums to pursue same.

    But Dads direct blood descendants would have a priority position to seek such administration--and get paid by estate for doing so--and have powers to recover assets if POA put them to personal use and require POA to "account." (For boat, cars, guns etc)

    BUT--if Uncle was properly acting for son as custodian I don't think its mandatory or even desirable that custodian release money for a 16.5 year old to go buy a car!



  • 04-28-2007 9:05 PM In reply to

    • j0405
    • Not Ranked
    • Joined on 10-20-2006
    • Posts 11

    Question [=?] re: taking from estate before probate

    Thanks Drew just to clarify, there is no will. I'm looking to somehow get the car out of uncles name, (how he got it titled to himself, I don't know) the car should go to my son. Uncle won't bring or give the car to him until he has his license. Uncle, somehow, took all of the money from dad, divided it up and opened an account under uncle and his wifes name with my son as a beneficiary. Son needs $600 to get his license. Uncle knows he needs this and won't budge. Uncle was never an official "executor" because there is no will and uncle did not take estate thru intestate probate, until now, that is, he is now asking to be appointed administrator and states that the estate is only $1700, so he can be reimbursed for final expenses. What about dads car? boat? other items of value? Won't the court care that uncle took everything? Can I tell the court this information once it's officially open? (according to clerks at probate court, I will be getting paperwork for information about me being the legal and custodial mom of son). Still am I confusing? Thanks in advance.
  • 04-30-2007 7:57 AM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,151

    re: taking from estate before probate

    Why woud you allow fox to get role of being in charge of henhouse security?

    If state law gives preference to one of fathers kids you need to think about being ahead of uncle in this quest--especially if the administrator needs to get stuff back from uncle!!



  • 04-30-2007 3:08 PM In reply to

    re: taking from estate before probate

    "... but the brother also took over disbursing money and possessions that he knew would go to the other children (4, 18 and over) and the dads car...."

    Misusing POA is not kosher. Unless POA addressed gifting issues, these actions were not kosher.

    As parent of a child, I would be filing intestacy/died without will paperwork and asking to be appointed administrator.

    "... and the uncle says he was the executor."

    Unless he filed intestacy paperwork and was appointed administrator, he has no power to act on behalf of estate. If he's done this, given his actions so far without even being appointed by the court, I'd contest his appointment on those grounds.

    Talk with local counsel.
  • 05-01-2007 1:59 PM In reply to

    • j0405
    • Not Ranked
    • Joined on 10-20-2006
    • Posts 11

    re: taking from estate before probate

    Hi,

    Thanks for the help you are providing. I think you are saying I should apply for the administration on behalf of my son? I was thinking that also. If I don't apply or get administratiive position, do you think the court will want to know that the assets of the father was more than $1497 at his passing? Do you think the court will want to know that the vehicles, he said he titlted to his name, how he did that? How did he get the fathers money out of the banks? I was also thinking of "putting a claim against the intestate estate, on behalf of my son" to force uncle to title the car, boat and the account with money that they set up to be owed to my son, do you think I can do this? And finally, can any one point me in the direction of forms and verbiage to do these? My budget only allows for very tight lines for living expenses, it really gets screwed when it's $3.00 for gas and I'm still owing $1000 for this years propane gas heat bill...sad.

    This is in the State of New Hampshire.
  • 05-02-2007 6:25 PM In reply to

    re: taking from estate before probate

    You must get a probate attorney in the county of death. You want to be appointed.

    The fees of your attorney are to be paid by the probate estate, so you should not need to pay any money to get started.

    Yes the court wants all the assets inventoried in the probate.

    If you are not appointed, file a request for special notice if allowed in your state. If assets are not inventoried, inform the judge with a pleading objecting to the inventory.

    http://www.courts.state.nh.us/probate/pcforms/index.htm

    Click estate forms.

    Don't forget..talk to a local probate attorney..please, or you will be sorry.

    HatTrick

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