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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Estate Law
Satisfied Customers: 17113
Experience:  Licensed Texas General Practice Attorney
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my mother passed oct 7, 2012...she had a wll , all 6 of her

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my mother passed oct 7, 2012...she had a wll , all 6 of her children would split her assets...I do not speak to any of my 5 brothers, and the eldest is the executor..I have contacted NJ, and Florida where I cared for hewr her last 3 years, and there has been no probate...can I put a lean on my brothers house for my share?

ScottyMacEsq :

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

ScottyMacEsq :

What type of assets did she have, and do you have any evidence that your brother stole your share?

Customer:

she had investments, and a house that was my moms, but was in his name....I beleive he has disbursed monies to other brothers, being as they are all in financial distress

ScottyMacEsq :

While it's possible that you could put a lien on his house, you would have to go through the full process of obtaining a judgment, taking that judgment to another state (if his property is located in another state than where the probate occurs), "domesticating" that judgment (meaning that you ask a court in that state to enforce the judgment from a court in a different state), and then getting a judgment lien that you can enforce against that real property. If you were to just file a lien against that property, it would be a "wrongful" lien (even if it would be right if you were to go through the process) merely because the process was not followed.

ScottyMacEsq :

IF there should have been a distribution that did not occur, the first step would be to file for probate.

ScottyMacEsq :

While he is named as the "executor" in the will, this does not mean that he IS the executor.

ScottyMacEsq :

An executor is someone named by a probate court, sworn in by that court, and given "letters testamentary" which allow that person to act on behalf of the estate.

ScottyMacEsq :

Naming someone an executor in a will is merely an indication of a desire that that person be named by the court as executor.

Customer:

which state? the will was made in NJ, but I cared for her in Florida her last 3 years till her death...she was considered a Florida resident

ScottyMacEsq :

Florida would be where it would be filed.

ScottyMacEsq :

(her residence at the date of death)

ScottyMacEsq :

Now Florida could still enforce the NJ will, but NJ would not have jurisdiction over probate merely because the will was drafted there.

Customer:

how do I find out if probate was filed, and if not, what next?

ScottyMacEsq :

If the probate court does not indicate that probate was filed, you would need to get an attorney involved. One need not be a lawyer to serve as an executor, administrator, or guardian. However, the executor, administrator, or guardian must be represented by counsel. As executor of a decedent’s estate, you don’t represent only yourself. An executor represents the interests of beneficiaries and creditors. This responsibility to act for the benefit of another is known as a fiduciary relationship. It gives rise to certain legal obligations and responsibilities that require legal expertise. The attorney you hire represents you in your capacity as executor and assists you in representing those for whom you are responsible. The good thing is that the attorney fees are paid by the estate, not the executor or individual filing for probate.

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 :

Again, this is assuming the probate clerk in your county indicates that no application for probate has been filed for your mother's estate.

Customer:

thanks

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. 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 good luck to you!

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