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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
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Experience:  Licensed Texas General Practice Attorney
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My fiance is having me research options that can be taken on

Resolved Question:

My fiance is having me research options that can be taken on this situation at hand. His grandmother and grandfather, which are his adoptive parents, passed in 2010. The situation is that the property where he resides and have been residing since birth has been a dispute among the property being divided between four family members and two of the family members are trying to sell the house without going to court or taking the proper steps. They adviced my finace that he has three months before they start the evictions process. What steps can be taken from this point in the state of Virginia
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Just to be clear, was there a last will and testament that passed the property equally to the 4 children? Or did they die without wills?

Customer:

There was a will but the oldest sibling is taking control of the will and not letting others hold a copy of the will or deed. She has keys to the property and came into my finaces home while he was working and took the lock box that had all the important will information in it.

Customer:

I advised him to write a letter and send it certified mail requesting a copy of the will and deed.

ScottyMacEsq :

and to be clear, only the grandparents names were on the deed to the property?

Customer:

she has that as well no other family members have seen it. but from what I am understanding the grandparents names were on the deed to the property when he last saw the paperwork which was a few years ago

ScottyMacEsq :

And just to be absolutely clear, no application for probate has been filed with the courts? No one has been named as executor or administrator of the estate by a probate court?

Customer:

Right

ScottyMacEsq :

thank you. While it is possible that at some point in the future these family members can compel the sale of the property, they cannot do so at this point. Assuming that his grandparents are the ones on the deed (and you can find out this information by contacting the county deed records), to be able to sell the property the property would either need to be put in their names, or an executor or administrator of the estate, as sworn in by a judge, would have to give them that right to do so.

ScottyMacEsq :

now he can file for probate, and as part of that process notices sent out to all the other family members, telling them that if they have a will, that they have to produce it.

ScottyMacEsq :

notices are sent out, that is

ScottyMacEsq :

By the way, I apologize for any errors in this answer. I am using a voice recognition program, and while it is accurate most of the time, is not 100% accurate, so if there's something that doesn't look quite right, or appears out of place or not grammatically correct, the reason is likely the software that I'm using. If will try to catch any errors, but if if you need clarification at the end, please let me know.

ScottyMacEsq :

That being said, you need to contact an attorney in your area that deals with probate cases. Go to www.lawyers.com or www.legalmatch.com to find an attorney in your area. You should be able to find one that will give you a free initial consultation and better advise you of your rights, any problems with your case, likelihood of success, how courts are treating cases such as yours in your area, and what you should do next.

ScottyMacEsq :

the other family members cannot evict your fiancé, legally, because they have no greater claim to the property. They are not owners of the property, but only have what's known as a "beneficial interest" in the property, since they are the legal heirs to the property.

ScottyMacEsq :

If they were to file for an eviction action, your fiancé could counterclaim for wrongful eviction, since they do not have the legal right to evict him, since they have no greater claim to the property then he does. Even if everyone was on the same deed, and everybody had a 25% interest, they still could not evict him, because they would have no greater right to the property then he did.

ScottyMacEsq :

Only if the deed was in all their names, giving each a 25% ownership, could one of the owners go to court for what's known as a "partition action", which is a legal lawsuit asking the court to order the sale of the property and distribution of the proceeds.

ScottyMacEsq :

Again, that would require court action.

ScottyMacEsq :

I'm not sure that the family members realize, but in any event, they will have to go to court, either to transfer the property into somebody else's name or make subject to administration and probate, or compel the sale of it in a partition action.

ScottyMacEsq :

And until that is done, they would have no right to be able to evict your fiancé.

Customer:

Ok, because he has been there for 40 years and has been keeping up the maintenance. He advised the other beneficiaries that the house needed plenty work. The whole foundation is off and the house would need to be raised to fix it from the ground up.

ScottyMacEsq :

your fiancé could literally go to the police department and get a restraining order, as well as filing for a civil injunction against them from forcibly removing him from the property, with out a court order that allows them to do so, which as I stated before they would be unable to obtain.

ScottyMacEsq :

And to the extent that the property needs maintenance to be able to sell it, and he expends money to do so, assuming that these expenses are reasonable and necessary, then he could recover those expenses from the sale of the property before the proceeds are distributed (such that every family member would be on the hook for his or her share of those costs).

Customer:

He can file a restraining order because they have access to the property because they are beneficiaries. An incident was last week where the oldest sibling used her house keys came into the home and started taking pictures of everyone watching television and cooking then proceeded to take pictures of the bedrooms.

ScottyMacEsq :

To the point that these actions do not constitute legitimate actions pertaining to the property itself,but rather harassment, he can file a restraining order against them. If they try to forcibly remove him from the property, he can file a restraining order against them.

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

That helps plenty because I recently been researching how to check out law books at my public library to help in this matter.

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 12225
Experience: Licensed Texas General Practice Attorney
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ScottyMacEsq
ScottyMacEsq
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Licensed Texas General Practice Attorney