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socrateaser
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 34091
Experience:  Retired (mostly)
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There are three significant issues since I last chatted with

Resolved Question:

There are three significant issues since I last chatted with you.
1. I saw the complete will . The executor/ 99% beneficiary did complete a line that had my son's name and address and a date June 5, 2009, that she sent him qualification documents. However that section required that she check one of two boxes [] No one needs to be sent the accounting/qualification or [] I have sent the qualification/accounting. She did NOT check either box.
2. The signature of the the deceased was not in the correct place. It was not on the signature line, but rather well below the line after his typed/printed name.
3. The person who notarized the document was also one of the three witnesses. None of the witnesses provided a home address, all used the address of the hospital
4. The total assets for the deceased was $317,000. This included 1/2 mothers home (92,000), various monies left to him from his mother (about 92,000) and the rest were itemized by account and account number. Most of these accounts, that did not come from the deceased mothers' estate were financial funds that would normally have a beneficiary (life insurance, IRA, annuity, etc.) . I believe I have already stated that the deceased (my son's father , Ben) died 5 weeks after his mother died (Ben had been her 24 hour caretaker for 2 years due to severe alzheimer's).
5. My son tried to get Medical Records from the hospital, but they would not release to him because he is not the executor (the sister/aunt is executor and beneficiary of $316,000)
6. My son and I had a consultation with an attorney, but she felt botXXXXX XXXXXne, too much time had passed and if I want to fight it , would be about 20K [I can spend money, but 20K is too steep to start with. I also called the clerk court that signed off on all the documents and she told me that it WAS a problem because the sister/aunt/executor/beneficiary/fiduciary did not send the will/qualification. The attorney did advise us to talk with the sister and see if she will negotiate anything. She also advised us to call the financial institutions and find out the name of the beneficiary on these financial documents.

Now.. my question, the attorney I saw was interested in a 20k case, but am wondering if there are smaller steps that can be taken, by an attorney, to communicate with the sister/executor. If so, how can I find an attorney that can take some of the smaller steps. For example, can I go to court to dispute that she ever sent the documents to my son? I need someone in Virginia...

My question
Submitted: 1 year ago.
Category: Estate Law
Expert:  socrateaser replied 1 year ago.
Hello,

I see that no one is jumping to answer your question here -- including the contributor who answered your original question. I would really like to help, but your question is pretty complicated and it will require me to review the previous transaction, so I thoroughly understand what's going on.

Would you be willing to allow me to answer your question in three parts, so that I can receive three ratings, and thereby receive appropriate compensation?

Thanks in advance.
Customer: replied 1 year ago.
Absolutely, you can respond to three or more questions. I will also leave you a tip (as I did the original responder) of $25 for each of the three answers, or more if I find the answer very helpful. I am using this service because I am a busy professional person who travels 90% of the time on business and I just don't have time to visit with a lot of attorneys, or to conduct other research that requires a physical presence. I My email isXXX@XXXXXX.XXX if you want to communicate and/or negotiate.
Expert:  socrateaser replied 1 year ago.
Thanks. There is no need to negotiate. You control whether or not you will pay and how much. I just didn't want to spend several hours working the question, without first clarifying the complexity of this issue.

Also, after reviewing the previous Q&A session and your question here, I see that the issue is not as complex as I previously believed it might be. So, I will simply answer the direct question here. You asked:

Now.. my question, the attorney I saw was interested in a 20k case, but am wondering if there are smaller steps that can be taken, by an attorney, to communicate with the sister/executor. If so, how can I find an attorney that can take some of the smaller steps. For example, can I go to court to dispute that she ever sent the documents to my son? I need someone in Virginia...


A: Before I get into the direct question, I feel obliged to discuss the underlying issues, some of which were touched upon in the previous contributor's answers.

This is not a straight forward case with an overwhelmingly rosy prospect for your son. In my view, there are some fairly substantial roadblocks, and any one of them could stop a case against the decedent's sister -- who I assume was the personal representative/executor of the estate.

The lack of the checkbox on the probate form suggests the possibility of a fraud, i.e., an intent to avoid notifying Patrick about the Will, so that there would be no challenge to its signing by Ben, who was probably of unsound mind when he signed the instrument. However, Patrick apparently did receive something under the Will, so he must have had actual knowledge of the probate action. And, he (presumably) knew that his father had passed away. This creates a different problem, which is that once a Will is admitted to probate (acknowledged by the court), interested parties who knew about the Will, so that they could have challenged its authenticity, and who fail to institute a timely challenge, are barred from trying to challenge the Will after it is finally admitted to Probate.

The point is that irrespective of whether or not the executor of the Will timely notified Patrick of the Will's submission to probate, Patrick knew that there was something going on with respect to his father's death and that he was to receive something from the estate. Given all of these facts, I could see how a court could rule that Patrick did not make a timely challenge and so the Will cannot be set aside now, even though it make be a complete forgery.

On the positive side, I can also see how a court could set aside the probate distribution -- and reconsider the issue of legal capacity/unsound mind, with regards XXXXX XXXXX Will's signing by the decedent. But, I believe that Patrick would have to show that he was not in possession of all of the facts at the time of the submission of the Will to probate, and that at least some of those facts could not have been known at that time.

The reason for this is that courts are extremely reluctant to set aside prior final judgments. The court needs credible proof that the person seeking to overturn the judgment was deprived of the opportunity to have his case heard on the merits, by the actions or omissions of the adverse party/ies -- and that the person so deprived could not have known of the deprivation at the time it occurred.

Getting back to your direct question, if you want to avoid burning through $20,000 in pursuit of a claim that your son cannot possibly win, then I suggest that you ask this attorney who is interested in your case, to prepare an objective memorandum of law, on the issues that must be resolved in order to successfully prevail in this matter. This could cost you perhaps $1,000 to $2,500 -- but a competent memo should be able to determine in advance whether or not you even have a shot at winning this case. It will also tell you whether or not the lawyer who you have tentatively selected is jerking your chain for $20 grand, or really knows his/her stuff.

I am an attorney, and I respect the profession. However, the practical reality of modern legal practice is that a very substantial proportion of legal professionals choose to take client funds and then throw themselves into trying to win a case, before they research the underlying law to determine whether or not they have a "snowball's chance" of winning. The reason for this is simple economics: The attorney who offers to prepare a memorandum of law on a subject: (1) risks the prospective client getting cold feet and walking away without paying anything; (2) risks discovering that the prospective client has no case, which leaves the attorney with $1,000-$2,500 for the memo. Whereas, by telling the prospective client, "Yes, let's go get those bastards and hang them by the yardarm," the client gets all "ginned up," writes a check for $20,000, and then when the client loses, the attorney can say, "That judge is a moron. I'm really sorry that the outcome is so unjust, but sometimes you run into a jurist who won't do the right thing!"

The client is thus placated, disappointed, but believes that the judge is the evil monster, who cannot be killed (hypothetically), the attorney gets the $20 long, and life goes on with everyone getting what they thought they were entitled to.

In reality, however, the case should never have gone past the legal memo, because there really was no case, and the attorney, merely chose to not carefully research the issue, because of the risk of losing the client before the case starts -- and also, to be frank, because most attorneys cannot research an analyze the law correctly. They march into court with their sword and shield, proclaim loudly that their client has been wronged, trust that they are correct, and hope that neither their client, their opponent or the judge figures out otherwise (aka "plausible deniability").

I'm not trying to paint a bleak picture here. However, because I have a judicial temperament, rather than a litigator's view, I am highly prone to seeing both sides of a case and the middle, as well -- before the case gets going. And, I do not want you "tilting at windmills," thinking that this case is a "slam dunk." I see rough water ahead, and you need to have the ship watertight before you set sail.

Damn, I am just full of metaphors this morning.

Please, let me know if I can be of further assistance.
socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 34091
Experience: Retired (mostly)
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