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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 101381
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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My Mother recently died. Her house was in a life estate to

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My Mother recently died. Her house was in a life estate to go to my deceased brother and my self. I filed bankruptcy three and a half years ago and the trustee is taking over my interest in the house. Do some papers have to be filed before the trustee and my brother's heirs can take over the house? I have been locked out of the house and cannot get some sentimentally items out of the house. The house is in Alabama.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your loss, and your situation. Can you please tell me if there is an Executor in the probate? If so, who - you, or someone else?
Customer: replied 3 years ago.

I am to be the executor,

Thank you, M.

So in that case, the Trustee is to be the Executor, that is, I am guessing. Or, someone else.

First, the Trustee may simply be asked if they have an issue with this. Assuming they do not, and assuming the Executor (if someone else) does not either, then one can enter the home as needed.

If the Trustee has an issue with this, then one has to file a special MOTION in BK Court asking the Judge to order the Trustee to allow one inside the home for personal items that are not part of and should not impact the BK.

If the Trustee also becomes the Executor and/or if another becomes an Executor and they have an issue with this, then one would need to file a similar motion in probate Court to have the same thing allowed.

In other words, one would need permission from BOTH Courts. Sometimes, one court will defer to another, but often, both will need to okay the request.

I hope this helps and clarifies. Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 3 years ago.

Are you saying the Trustee of the bankruptcy court becomes the executor of my Mother's estate? He has no control over my Mother's estate except for half interest in the house. Does some paperwork have to be filed in Alabama to turn over the house to the hiers of the life estate?

M,

Are you saying the Trustee of the bankruptcy court becomes the executor of my Mother's estate?

In theory, yes. However, likely not. Any interested party may petition to become executor. Since the trustee is an interested party due to the nature of their position, they may. However, the chances of that happening are slim. I was merely being all-inclusive in my answer.

Does some paperwork have to be filed in Alabama to turn over the house to the hiers of the life estate?

YES.

When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into beneficiaries' hands. To turn over title, the Executor executes a QUITCLAIM DEED or an EXECUTOR'S DEED to do this, taking the title out of the name of the deceased and into the beneficiaries' names.

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Customer: replied 3 years ago.

I am to be executor of the estate. Shouldn't that be taken care of before the property is turned over to the heirs? Do I file probate in Alabama or Colorado where I live?

Yes, probate is filed and and Executor is appointed and given letters BEFORE the Executor then proceeds to divide up the property per the Will and filing deeds to help him do so.

Probate is filed wherever the individual had passed after living in that state for 6+ months and where the bulk of their assets are. If in question, it should be where they passed.

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