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.
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.
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