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Shaun G.
Shaun G., Lawyer (JD)
Category: Estate Law
Satisfied Customers: 41
Experience:  Juris Doctorate in law. Have several years experience in Contracts, Wills, Family Law
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Live in N. Ca. Mother passed away in 2/07. House beneficiary

Resolved Question:

Live in N. Ca. Mother passed away in 2/07. House beneficiary son #2, Executor son #1. In her Will, she left her house to all her children equally and sell if majority voted. Found out that 2 Sons put Deed solely in their names and not siblings. They promise to distribute funds if time comes for house to be sold, but there are no guarantees. Is this legal? Does the Will take precedence? What do we need to do?
Submitted: 10 years ago.
Category: Estate Law
Expert:  Shaun G. replied 10 years ago.

The will takes precedence over the motives of an executor except in extreme cases where the estate has outstanding debts.Even in those cases, the executor (even if he is a beneficiary to the will) should not transfer house title into his name. Also one beneficiary should not transfer title soley to his or her name. Unless you completely trust your brothers, I would take them to court to compel them to tranfer title to all names listed in the will.

You can do this by contesting the will distribution in probate court.

Customer: replied 10 years ago.
Reply to Shaun G.'s Post: They state that because some siblings have really bad credit, an "atty" told them that it was better off to protect the house(?!). The house is paid off. So you're saying that their actions are not legal or binding? There are 13 siblings and only 2 who now own the home. How did they quitclaim the house and put it in their names in the first place?
Expert:  Shaun G. replied 10 years ago.

An executor of an estate has the authority to do that. Usually though, the other parties have to sign some type of agreement or authorization to do so. If they did a quitclaim deed, all parties having interest in the property have to sign. I am thinking that it is possible that they forged the signatures of the rest of the group. The attorney that told them it was better put it in the name of the 2 of them was probably expecting that they would do it the right way ( getting the express permission of the rest of the group).

It is also possible that the executor got permission from the court to make this change due to the circumstances with the credit of the rest of the group. A court can grant this if they think that it is in the best interest of the estate.

I would really have to know the steps that he took to get this done in order to detemine if it is illegal. However, you should be able to contest his actions in court.

Customer: replied 10 years ago.
Specifics of the deed is not known and not going to be shared with other members - executor says its his choice and frankly no-ones business. Fact: A judge has not given permission. A great guess is that our mother left son #2 beneficiary to the house, quitclaimed it and put him and son #1 on the deed. My concern stems from the fact that I helped put her personal affairs in order and was very aware of her wishes. If we succeed with removal of their names to put the house in Trust naming all siblings? Would we need to go the same route (petition the court)if we wanted to sell the house with their names still on the deed?   Is that costly or cost effective? Lastly, isnt the definition of "executor" to distribute assets and information of the estate and not keep it confidential? I appreciate your insight.
Expert:  Shaun G. replied 10 years ago.

Yes you can have the house put in a trust listings all siblings as interetested parties to the Trust. The only way should have to go to court in order to sell the house is if, there is a dispute between the siblings as to whether or not it should be sold. Usually you would be pay filing fees/court costs which vary from county to county and from state to state. The costs should be between $300 to $2000 on average. It is the responsibility of the executor to make sure the wishes of the decendent (your mother) are carried out. This includes making sure that the interest of the beneficiaries (you and your siblings)is protected as it pertains to the decendent's estate. Your brother should be commuicating to all of you about the estate and what is happening with the house.

By the way, you can also petition the court to have your brother removed as executor if the court finds that he is being self-serving.

Customer: replied 10 years ago.
This is in regards to "legal title" of the 2 names on the deed. Do our chances decline if we deal with this issue a month, 2 months, or prior to the year ending? What I mean is if the longer we wait, the more difficult it would be, and the better chances they would have to keep the house for themselves? Or does time not factor in our case. Also, with your answer re the trust, will a trust protect the house from liens, judgements, etc from other siblings bad choices? This discussion will give us info to brainstorm in making a decision to what our next will be.
Expert:  Shaun G. replied 10 years ago.

NO... your chances to not decline the longer you wait, however there is likely a statute of limitations for you to bring your case to court. The trust will protect the house from any liens or judgements from other siblings, unless it can be proven that the trust has not bee treated like a trust and has been used for other purposes other than what was established for.

I will look for California statute of limitations and get back to you later on today.

Customer: replied 10 years ago.
Reply to Shaun G.'s Post: I will await your answer
Expert:  Shaun G. replied 10 years ago.

This information that I found online suggests that California has a 1 year statue of limitations to contest a will or estate administration. I am somewhat surprised as Texas(where I reside) has a 2 year provision( as many states do)which makes me question the reliability of what I found online. Also these things can change from time to time. I would suggest calling your local probate court( should be housed with your local county court system) and ask them specifically. They should be able to tell you or direct you to where the information would be located.

Ques: What county is Stockton located in? I can't seem to figure that out. This info may help me find a more reliable info for your statute of limitations

Expert:  Shaun G. replied 10 years ago.

I found your county - San Joaqin. I still did not find the statute of limitations online, but I found this document. It is fairly lengthy, but you may find the info here.

I hope this helps!
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