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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33715
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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My husband died in 2003. I gave the will to the attorney my

Customer Question

my husband died in 2003. I gave the will to the attorney my husband named as Trustee of the real estate. Attorney filed the will but never acted on it. The will said I was never to hold title to the property and the lawyer xfr'd the property to me in 2010 when the property suffered damage. In 2005 when the property was in a testamentary trust the attorney acted for myself and the bank allowing me to mortgage the property not in my name. I believe in order to convert to a 30 yr fixed rate I paid off my husbands mortgage w/o the consent of the probate court. In Sept 2014 I learned the will was never put thru probate and I was not the legal owner of the property the estate was the owner.
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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Was the property actually in a trust when husband passed or was it still in his name?

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Are you saying that the attorney never filed a probate case to settle the estate, he just submitted the will to probate?

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What is your legal question I can help with tonight?

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thanks

Barrister

Customer: replied 1 year ago.
the property was in the name of my husband and at point x placed in a testamentary trust per the will. This was done several years after husband died and w/o consent of probate court. I think, this happened about the time I personally mortgaged the property.
The only thing the lawyer did was file the will and never followed the instructions of the instrument.
My husband was an attorney and this gets to be a really bad mess
Expert:  Barrister replied 1 year ago.

Ok, it sounds like the transfer to the trust was not legally valid because there would have to be an executor appointed by the local probate court judge after opening a probate case for him to have the legal authority to transfer the property out of husband's name. So what you have here is an invalid deed because the attorney had no legal authority to transfer it.

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With that said, that would be malpractice on the part of the attorney and would give you grounds to file suit against him for the cost of clearing this all up. Even though this happened years ago, you can ask that the statute of limitations be tolled on the malpractice claim since you only recently became aware of his improper actions.

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The estate would have to be formally opened and an executor appointed to settle it and properly execute the deeds over to the trust by having new deeds prepared and a judicial order declaring the old deeds void.

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This wouldn't be any type of loan fraud on your part because you were acting under the legitimate assumption that you (or the trust) was the legal owner of the property when it was mortgaged.

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thanks

Barrister

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