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Infolawyer, Attorney
Category: Estate Law
Satisfied Customers: 56528
Experience:  Licensed attorney helping individuals and businesses.
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Customer Question

A Mother passed away Dec 2012 in Santa Clarita, CA (Los Angeles County, CA).
The Mother had a Will, but no Living Trust, which had been prepared and signed in Independence, CA (Inyo County, CA).
The Attorney for the Probate prepared and executed a "Simplified Probate," without disclosing this in an Engagement Letter nor explaining in writing to the 2 Heirs (Son and Daughter) what the differences were between a Regular Probate and Simplified Probate (which words are deceitful themselves as NOTHING simple came out of that process).
One of the Key differences is that the Executor
a. Looses Executor status, and
b. Therefore the Executor stated in the Will has NO AUTHORITY
1. to offset expenses paid by the Executor or the Estate Bank Accounts from
the Sale of the Prior Mother's Home
2. Any other Executor duties and right to reimbursement for work performed
on behalf of the Estate.
The Daughter (Heir and the Only Executor listed in the Will) tried to use a Power of Attorney for the Sale of the Real Estate (Mother's Residence now owned jointly by the Heirs; via the Simplified Probate process) so Daughter could offset the expenses paid by Daughter (over $10,000 at the time of the Sale) from the Sales Proceeds. The Power of Attorney format was approved and dictated by the Escrow Company.
However, the Escrow Company rejected using this Power of Attorney 10 days before the Close of Escrow; stating that the Judge's Signature on the Document "Order to Determine Succession to Real Property" in the Simplified Probate stated the proceeds shall be divided 50/50 and therefore the Escrow Company would NOT provide all the proceeds to the Daughter via the Power of Attorney. The Escrow Company also would not offset the expenses paid by the Daughter already nor postpone Escrow for a formal accounting of all the expenses paid so that the proceeds were split after all shared expenses.
Therefore, at the end of the 2 years of administering the Estate, doing all the work, and paying for all the Bills because the Estate Bank Account was insufficient to pay the bills, the Daughter was short the other Heir 1/2 of the bills reimbursement; over $10,000.
The loss of Executor status meant she had to collect the 1/2 of the Brother (other Heir)share of expenses from the Brother, herself. A Simple Probate takes the Judge assistance away also.
Upon sending an extensive 3 ring binder full of copies of invoices and proof of payment, which the Brother requested, the Brother never even responded to this written documentation nor pay for any of the $10,000 of expenses.
Therefore, the Daughter is attempting to file a Small Claims case and requests guidance of the following:
A. What Venue does Daughter File
Inyo County - where Property was located? OR
Los Angeles County - where the Judge signed the Order to Determine Succession
to Real Property?
The Daughter thought the Van Nuys Small Claims would be a valid place to file the Small Claims Case, as they are 1 of 6 Small Claims Office in Los Angeles County. However,
Van Nuys rejected the Small Claims stating that for the case she was filing she was in the wrong Venue and to contact the Assistance Officers at Small Claims.
The Daughter did contact the Assistance Officers, but has received very different advise.
1. File in Inyo County, that will protect you from the Brother appealing the Case to
Oregon where the Brother resides.
2. File in Los Angeles. BUT must use the Stanley Mosk Courthouse.
Why, as not all does the recording when you call into Small Claims say you can
choose the Venue which is best for you, but this is also in writing with the Small
Claims instructions.
3. Am I filing the wrong type of case, Daughter should file a
Limited Civil Case OR
Small Claims Case OR
Civil Case OR
OR? A Combination of the above?
4. Any way to hold the Attorney responsible for the Expenses not reimbursed,
already won a Mediation case against the Attorney to have THE Attorney Fees
paid back to the Daughter for all the wrong things that occurred to Daughter,
expenses she would not have incurred, failure to provide Engagement Letter and/or
explain the consequences of doing a Simplified Probate versus a Regular Probate.
Can a Small Claims Case be filed against Attorney?
Can a Civil Case be filed against Attorney?
What other type of Case can be filed against Attorney?
We would greatly appreciate your help in these matters.
Submitted: 2 years ago.
Category: Estate Law
Expert:  Infolawyer replied 2 years ago.
Expert:  Infolawyer replied 2 years ago.
A lawyer who failed to perform as agreed can be pursued in a number of ways, which include a civil action on theory of negligence/malpractice and breach of contract. If made intentional misrepresentation, fraud. also consider disciplinary bar complaint in state where licensed.
Expert:  Infolawyer replied 2 years ago.
Let me know if that is clear and helpful. some lawyers focus only on such cases and can pursue the case for you on contingency fee basis. also if lawyer has insurance which most do, such claims can often settle.
Customer: replied 2 years ago.
Our Major question is what Venue should we file the Small Claims Case...please answer.
Customer: replied 2 years ago.
Additionally, we want to know if Small Claims is the right way to go
Customer: replied 2 years ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call + Review Legal Documents. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Infolawyer replied 2 years ago.
The venue should be in state court where the defendant is located so you have jurisdiction, venue, maximum enforcement options. Let me know if that is helpful and if I can clarify anything
Customer: replied 2 years ago.
Defendant is located in ANOTHER STATE, Oregon. This is why our Question is SO IMPORTANT, we do NOT want to go to Oregon if at all possible. This is why another recommended that we do the Independence (=location of residence) in Inyo County because they feel the Brother could NOT appeal Venue and force us to Orgeon....
Expert:  Infolawyer replied 2 years ago.
You can pursue in own county but unless you go where the defendant is, you may simply end up with a default judgment. You want a judgment where defendant has assets so the judgment has force. you could have a lawyer handle out of state working on commission and you often dont need to travel since done on papers.
Customer: replied 2 years ago.
What do you mean it is done on Papers? If necessary CPA will travel to Oregon for make this clear so we can understand what you mean....
Customer: replied 2 years ago.
Can we use A People's Choice in Oregon?
Customer: replied 2 years ago.
Are you answering these last questions?
Customer: replied 2 years ago.
What do you mean it is done on Papers? If necessary CPA will travel to Oregon for make this clear so we can understand what you mean....Can we use A People's Choice in Oregon? Would this suffice? Or should we still go?
Expert:  Infolawyer replied 2 years ago.
By papers I mean no appearance is needed. Done by motions. no travel often needed. Can use a local lawyer using or You control it all by directing the local lawyer how to proceed.
Expert:  Infolawyer replied 2 years ago.
I trust that is clearer and helpful. Kindly let me know. sorry for the delay
Customer: replied 2 years ago.
Yes, much clearer. Great job...Thank you.
End of Questions...
Expert:  Infolawyer replied 2 years ago.
Glad to hear it.Kindly rate me excellent.enjoy the weekend!