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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 33803
Experience:  15 yrs estate law, real estate. Wills/Trusts/Probate
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I need a second opinion on the legal question at the bottom

Customer Question

For Barrister:I need a second opinion on the legal question at the bottom of this page, but first:
Have u access to info from Damien from awhile back? If not, I will copy and paste the info.Ex died in 7-2014. I filed claims in S.C.probate in March of 2015 for past due alim. & unpaid unitrust dividends and hidden/concealed assets.2011 Divorce decree states, that "Any assets in existence at the time of this order that were not on either party's fin. decl., if discovered, will be alloted to the other party." Well, there are some assets not on ex's fin. decl. of which I now know.Sum. judgment ruled in favor of defendant (ex's estate) for all but past due alim. & unpaid unitrust dividends.I'm working on motion to alter / amend su. j. order based on errors. I need to know:If any NON-probate assets, that were marital at time of divorce, are found to have been fraudulently (or otherwise) concealed during div. negotiations, does a probate judge have authority to change how a decedent’s NON-probate assets (which were marital assets) are dispersed? Probate estate is insolvent.
Submitted: 1 month ago.
Category: Estate Law
Expert:  Barrister replied 1 month ago.

Hello and thanks for requesting my help..

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If any NON-probate assets, that were marital at time of divorce, are found to have been fraudulently (or otherwise) concealed during div. negotiations, does a probate judge have authority to change how a decedent’s NON-probate assets (which were marital assets) are dispersed? Probate estate is insolvent.

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No, the probate judge only has legal authority to make orders with regard to assets that are under his jurisdiction, and those are only the probate assets. So if something is outside probate, it is outside the authority of the probate judge.

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You would have to go after those assets based on a claim of misrepresentation and fraud in the divorce court if you can find evidence that they actually exist. It sounds like the divorce judge left the door open for that claim to be made in case this turned out to be the case.

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So you need to get your proof and then go back to that divorce court to have that judge take action to order those assets to come to you.

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thanks

Barrister

Customer: replied 1 month ago.
Barrister, is it correct to say you disagree with the following info written by Damien?06 October 2016 08:25 If any NON-probate assets, that were marital at time of divorce, are found to have been fraudulently (or otherwise) concealed during div. negotiations, does a probate judge have authority to change how a decedent’s NON-probate assets (which were marital assets) are dispersed? Probate estate is insolvent.
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06 October 2016 08:48
Damien Bosco
Estate Lawyer
The probate court would have jurisdiction on the probate process and any motion by the personal representative to bring back assets into the estate.At that juncture, the respondent would have to argue that the separation agreement takes precedent over the probate proceeding.The judge would issue a ruling. If fraud is the claim then it would be addressed.If the probate judge believes that the separation agreement or divorce decree has to be revised, the probate proceeding could be stayed until a matrimonial judge would address the issues.
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06 October 2016 11:36
Thank you, Damien."The probate court would have jurisdiction on the probate process and any motion by the personal representative to bring back assets into the estate.
- Personal Representative (PR) & respondent (R) & trustee are 1 & the same.
- Ex put nearly everything into trusts, ins. & whatever else would bypass probate, so
Q1. When u say "bring back assets into the estate”, do u mean as if he hadn't died?At that juncture, the respondent would have to argue that the separation agreement takes precedent over the probate proceeding.
Q2. Can judge order R to motion to bring back assets? If not, I doubt R would do so cuz he’s ex's bro. & gets 7% [+$ for being PR & trustee of ex's & my adult children’s trusts.The judge would issue a ruling. If fraud is the claim, then it would be addressed.
-the fraud is concealment of assets, transfers of assets right after he got divorce papers, intentional misrepresentation of ex's & my pension/retirem’t acct & maybe forgery of my name on p.o.a. & on pension.
- I’ve been told that IF fraud is proven, that all goes back to pre-decree orders which I don't want.
Q3.Is that true?Q4. Then again, if the divorce is reversed, would I get 33% & house, car, etc, b/c I'd now be the widow???If the probate judge believes that the separation agreement or divorce decree has to be revised, the probate proceeding could be stayed until a matrimonial judge would address the issues.
- UNLESS the divorce is reversed, & I'd now be the widow, I do not want a revision. Unless the divorce is reversed, I just want orders to be enforced!!!!
- I was also told that once a divorce debtor dies, family ct. has nothing to do w. this situation.
Q5 Is that true?
- I did read that probate and family have co-jurisdiction, but regarding exactly what, I don't know.
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06 October 2016 11:44
"... respondent would have to argue that the separation agreement takes precedent over the probate proceeding.
Q6. What would the R say in such a motion?Damien, does your above info coincide with S. Carolina's rules?
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07 October 2016 07:44
Damien Bosco
Estate Lawyer
Your follow up questions are too nuanced and difficult to discuss in a Q&A. It is probably better to speak on the phone. You can accept the premium service offer to speak on the phone. If you need a South Carolina Attorney, I can provide you a referral number where you can request a South Carolina attorney so you can arrange a private consultation.
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08 October 2016 11:07
Damien, I can't remember well enough to go the phone route, so I need to receive written answers. Also, I can review written answers."Bring back assets into the estate"
Q1 Would those assets be the trusts & other things that existed in ex's name b4 he died? (i.e., all the assets that are now NON-probate?)______________________________________________________________________________
08 October 2016 11:19Q2a Can judge order the R to make a motion to bring back the assets?Q2b Can judge himself order assets to be brought back?Q2c Is there something I can do to start process of bringing assets back?
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08 October 2016 11:32Q3-6 Above questions 3-6Q7. Are all ROLLOVER IRAs NON-probate?
Expert:  Barrister replied 1 month ago.

Barrister, is it correct to say you disagree with the following info written by Damien?
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No, not at all.. It actually echos what I said... The probate judge can hear a motion, just like Damien said, and he would then likely issue a stay so that the divorce judge (matrimonial judge) could hear the part about fraud and hidden assets and make a ruling... just like both Damien and I said..

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If the probate judge believes that the separation agreement or divorce decree has to be revised, the probate proceeding could be stayed until a matrimonial judge would address the issues.
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This is the divorce judge I am talking about...same thing, just different term..

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The right court has to make decisions about things that are in its jurisdiction. So the divorce judge has authority over non probate assets that were hidden during any divorce, and the probate judge obviously has jurisdiction over probate assets. But since the divorce judgment was issued first, I agree that it takes priority, but it has to be the divorce judge who issues an order pulling any newly discovered assets back into that case.

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So I think we are both in sync here..

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thanks

Barrister

Customer: replied 1 month ago.
Barrister,
Damien said, "The probate court would have jurisdiction on ... any motion by the personal representative [PR] to bring back assets into the estate. At that juncture, the respondent would have to argue that the separation agreement takes precedent over the probate proceeding. If the probate judge believes that the separation agreement or divorce decree has to be revised, the probate proceeding could be stayed until a matrimonial judge would address the issues."
- There's no way the PR would motion such a thing and I can't see probate judge motioning to bring back assets or to ask fam. ct to revise.
- May I motion probate ct to bring back assets OR do I need to motion fam. ct to Show Cause ?
Customer: replied 1 month ago.
Barrister, will you please answer the rest of the questions I asked Damien which he never answered?
Customer: replied 1 month ago.
Per Rule 59(e), Plaintiff respectfully ***** ***** Honorable Judge Kenneth E. Fulp, Jr. to reconsiderBarrister,
I'm working on a motion for ct to alter its August 16, 2016 Order granting Summary Judgment to the Defendant on Plaintiff’s Claims for, among other reasons,1. Mistake (SCRCP Rule 60(b) regarding the use of res judicata;
2. Estate atty (EA) for Defendant/PR/R/ex's brother/trustee LIED ABT my ADMISSIONs not being timely filed/answered.EA's application of res judicata as his defense against my (Plaintiff/Petitioner’s) claims for the Annuity w. death benefits and for the Hidden Assets does not apply to this case. In fact, res judicata does not apply to any of Petitioner’s claims in this case because the issues / causes of action are different in each case.• First case: Causes of action – to obtain divorce, due to adultery, and equitable division of marital property;
• Second case: Issue - to set aside only the financial aspects of divorce decree*;
• Third case (pending): Causes of action – to obtain reparation and enforcement of Judge’s divorce orders which ex promised to fulfill, but did not.
Contrary to opposing attorney’s insistence, Petitioner has NOT been attempting to re-litigate her divorce terms. She simply wants the divorce orders to be carried out.*NOTE: The judge denied my motion to set aside. I believe that upholds the judge’s divorce orders in the first case. It is these orders that Petitioner seeks the help of Judge xxx to uphold and enforce.
Customer: replied 1 month ago.
Barrister,Since prob. judge ruled vs me on most of my claims, will I still be permitted to motion fam.ct to enforce its hidden assets order?Would I not be allowed to due to res j.?

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