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Ely
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 89091
Experience:  Fully licensed attorney in Texas in private practice.
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My mother passed away and she left me beneficiary of her life

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My mother passed away and she left me beneficiary of her life insurance and all of her bank accounts; she left my sister beneficiary of her retirement account. It has and was her intent that we both get 50% of all.

I split the life insurance policies and the bank accounts with my sister; and for 3 1/2 years she gave me my share of my mothers retirement. She stopped giving me my share when I questioned the authenticity of some papers she faxed me stating that the IRS took her refund because of my mother's retirement money and that for the next two months I will not be getting my share. Because I told her that the documents were altered and a bad cut & paste job she stopped giving me my share she now owes me over $4,500. Can I sue her to continue receiving my rightful share
Submitted: 1 year ago.
Category: Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Can you please tell me:

1) When did your mother pass?
2) Was probate filed, or not?
3) If it was filed, has it been closed by now?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.


My mother passed away Palm Sunday (4/05/2009


There was no probate filed I don't even know what that is

Expert:  Ely replied 1 year ago.
Thank you, K.

WHAT IS PROBATE AND WHY IS IT FILED
When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the beneficiaries' hands. An Executor also helps to distribute non-titled property such as furniture, etc.

WHY DID I ASK
The reason I asked is because you and your sister seemed to have taken care of the estate without filing for probate. I guess it just worked out this way. This may become important in the future - read on.

FILING SUIT
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

Here, this may be a case of unjust enrichment and fraud.

Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." The elements of unjust enrichment are: (1) an enrichment, (2) an impoverishment, (3) a relation between the enrichment and impoverishment, (4) the absence of justification, and (5) the absence of a remedy provided by law. Nemec v. Shrader, 991 A. 2d 1120 - Del: Supreme Court 2010. Often used for quasi-contract cases, it may also fit here.

The elements of "actionable fraud" consist of a false representation of a material fact knowingly made with intent to be believed to one who, ignorant of its falsity, relies thereon and is thereby deceived. Twin Coach Company v. Chance Vought Aircraft, Inc., Del.Super., 163 A.2d 278 (1960).

One would have to pursue the matter in small claims court. The most you can ask for in a small claims case is $15,000.

Now, she COULD try to relocate this matter to probate court, citing that this is a probate matter rightfully, and if so, then the case may be relocated to probate and become more complicated.

You can see here for a guide to small claims. Please, let me know if you need an expansion/clarification on anything else by using REPLY.

Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.


I truly appreciate you guiding me on this......if there was anything i knew I knew she had frauded me and I knew she breached a mutal agreement.


 


Because the amount she owes me is less than $15,000 I must file a complaint with the Justice of the Peace....


 


Again, I SO THANK YOU VERY MUCH! Lord knows I wish I had you in Delaware representing me......great job Eli

Expert:  Ely replied 1 year ago.
K,

I truly appreciate you guiding me on this......

My pleasure!

if there was anything i knew I knew she had frauded me and I knew she breached a mutal agreement.

Understood.

Because the amount she owes me is less than $15,000 I must file a complaint with the Justice of the Peace....

Indeed. That is Delaware's version of small claims court.

Again, I SO THANK YOU VERY MUCH! Lord knows I wish I had you in Delaware representing me......great job Eli

Your words kind of made my day here. I thank you for that.

Good luck in this and all your endeavors, and please don't forget to rate my answer in one of top three faces and then SUBMIT – it is the only way I get credit for my time with you – or, please REPLY to keep on chatting – I want you to be satisfied.
Customer: replied 1 year ago.


Eli,


 


I will gladly rate your assistance as EXCELLENT you not only answered my questions but you also provided me with cases to use as examples.


 


I was so hoping it would not come to this with my sister but sometimes you gotta do what must be done....

Expert:  Ely replied 1 year ago.
Blood may be thicker than water, but in the end, you have to do what is best for yourself. I completely understand.
Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 89091
Experience: Fully licensed attorney in Texas in private practice.
Ely and 4 other Estate Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your gratuity.

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Ely
Counselor at Law
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Fully licensed attorney in Texas in private practice.