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Dwayne B.
Dwayne B., Attorney
Category: Estate Law
Satisfied Customers: 32354
Experience:  Estate Law Expert
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There is a large family plot that was purchased in Tennessee

Customer Question

There is a large family plot that was purchased in Tennessee however both of the original owners are deceased. On the cemetary card, it was hand-written by one of the plot owners who had 5 children to forbid one of the children and her decendants to be buried in the plot. That same child many years later forced the parent to sign a power of attorney and has since buried a divorced husband and has installed a very large, obtrusive monument with her immediate decedents names on it; without the verbal or written consent of the other original children who were all fair heirs to the plot. What takes precedence, does the power of attorney supercede anything and if not, what do the original heirs have rights to in removing non-approved remains and the monument and what legal action can that take on the sibling.
Submitted: 4 months ago.
Category: Estate Law
Expert:  Dwayne B. replied 4 months ago.

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. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Was the cemetery plot addressed in the probate of the original owners? In other words, was it left to anyone by their wills or by intestate succession?

Customer: replied 4 months ago.
There were multiple wills drafted over the years however, once the one daughter who became the final power of attorney, none of the wills were found or disclosed for that matter.
Expert:  Dwayne B. replied 4 months ago.

Was a probate done at all? If there is no will then the property passes by "intestate succession" which just means according to the laws and methods set by the legislature.

Customer: replied 4 months ago.
There was no probate. The daughter took everything of her parents and did as she chose with them. The daughters were all told that nothing could be done since the 1 daughter forced the power of attorney on the remaining parent.
Customer: replied 4 months ago.
if there is intestate succession what rights do the remaining siblings have over this plot and what happens on it? Is the grave yard owner/management responsible in any way?
Expert:  Dwayne B. replied 4 months ago.

Any powers given by the POA ended immediately upon the death of the person that gave the POA. That means if the daughter was distributing assets based on the POA then she had no authority to do so.

The laws regarding who is an heir under the intestate laws are very complicated. Rather than copying and pasting the information I am going to give you a link to a web page that explains who is an heir:

http://www.nolo.com/legal-encyclopedia/intestate-succession-north-carolina.html

However, a probate should have been done because the property belongs to the estate of the deceased and did so from the moment they passed away. A probate of some kind must be done to pass title from the estate to the heirs.

Thus, at this time the plot at the cemetery belongs to the estate of the deceased and to pass it to the correct owners a probate must be done. It is possible that an argument could be made that the graveyard should not have allowed anyone to be buried on the plot without a probate being done and determining who is the correct owner.

The graveyard could be sued for breach of contract, possibly, by the estate of the deceased and the daughter who disposed of or took the property could be sued by the estate as well since she didn't have the authority to do that. That would mean that someone would have to hire an attorney and then file for a probate and, after they are appointed executor, they would have to sue the daughter and possibly the graveyard as well.

You can find a lawyer to assist you by going to www.lawyers.com and in the section for Area of Practice enter Probate Law or Civil Litigation. Either of those will have the skill set you need.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered. In addition, once you issue your Positive Rating the question will lock open and no longer time out so you can come back to it anytime in the future if you think of any follow ups.

Customer: replied 4 months ago.
Is there a statue of limitations as to when a probate can be completed. The last parent passed away 9 years ago.
Customer: replied 4 months ago.
It was only within the past month that the new gravemarker (hidious monument) was installed with her divorced husband's ashes buried underneath of it
Expert:  Dwayne B. replied 4 months ago.

There is a limit as to when certain types of probate can be filed but others can be filed at any time. We aren't allowed to provide you the specific times because they are very fact intensive but any local lawyer can do that after visiting with you and going over the facts. The issue with the graveyard can move forward since it just occurred but you have to get the probate issues figured out first.

Customer: replied 4 months ago.
Does it matter if the POA was also the executor of the estate? Although without there every being a will produced no one is certain?
Expert:  Dwayne B. replied 4 months ago.

No. Until a probate is opened and the court appoints an executor there is not one. Just being named as executor in a will doesn't actually do anything.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered. In addition, once you issue your Positive Rating the question will lock open and no longer time out so you can come back to it anytime in the future if you think of any follow ups.