Estate Law Questions? Ask an Estate Lawyer.
Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.
At this point you have to file everything in the probate court because it has exclusive jurisdiction over the estate and all matters pertaining to the estate. However, if you decide to pursue this you would be very well advised to use an attorney. Probate is extremely complicated, based on antiquated laws and principles, and seldom does a pro se manage to contest matters correctly and thus a judge has no choice but to deny their motions. Based on your facts it would appear you have an extremely good case to challenge the actions of the POA but you don't want to lose that right because of a procedural mistake.
I understand about the lack of finances. However, if you can come up with the money through some type of short term loan or possibly credit cards then you will likely be able to ask for reimbursement from the estate.
It's also possible that someone will take the case on a % although it's not easy to find someone just because most probate attorneys don't work that way. What you may want to do is go to www.lawyers.com and search for an attorney that does Civil Litigation and then se if they also do probate litigation and discuss it with them. That site doesn't have a section for probate litigation since there are very few attorneys that "specialize" in that area.
As far as what the retainer will be I couldn't even guess since it varies so much based on geography, experience of the attorney, etc. Most lawyers won't charge you just for the office visit though so it's worth meeting with one or two.
I think there will be a problem filing if it gets out of probate court since that court is really the one with jurisdiction over these matters. In order for you to pursue it you would have to actually "inherit" the right to the cause of action otherwise you wouldn't have standing to bring a lawsuit and it wouldn't be guaranteed even then. There will be a statute of limitations and it will most likely be four years but you need a thorough examination of the facts to know for sure because different causes of action have different lengths of time and, in addition, the facts can sometimes make a difference. I don't like to give hard and fast answers to this kind of question because I can't do a comprehensive interview due to the limitations of this type of forum.
There's no good way to pressure the executor or the attorney without an attorney yourself, unfortunately.
Yes, it is possible that they could be held responsible for not "doing their job" as the executor and looking out for the estate. However, it's not quite as easy as it sounds because the executor has to weight the cost of litigation, the chances of success, etc. and you can assume they will claim they discussed it with the estate attorney and made the decision not to pursue it due to the cost involved or something along those lines. Again, this is the area where your own attorney comes into play since they can argue that it is a valid case, explain why they think so, etc.