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Category: Estate Law
Satisfied Customers: 73
Experience:  Sworn to the California Bar in 2011. Former staff editor at The New York Times Co. and seasoned news professional of 20 years experience in the U.S. and abroad.
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I would like to seek your advice on a property. Its kind of

Customer Question

I would like to seek your advice on a property. Its kind of a long messy story.
My uncle (86 years old!) owns a business that is run on the property in which I own 1/4 interest of the building and grounds by inheritance.
This property was held in trust. My mother and my uncle each had equal shares in property. My mother passed in 2000. Her 1/2 was distributed to me and my brother. My brother passed away last year. He had no will and no surviving family just me. I am concerned with some possible malpractice issues? with attorney. So for many years my brother and I received "rent" payments from my uncle and also paid our 1/4 property taxes. The original OLD lease stated that my brother and I were to pay the property tax rate as of 1976 forever. It is clearly stated that is was not supposed to get higher as taxes increased. Now brother is gone. about 7 mos before my brother passed my father died. I went to the attorney that prepared his will. I did not know this but he told me that he is the attorney for my uncle and his business and property (mine too). I had never had any involvement with the property...I just paid my taxes and trusted my uncle to handle things. SO this attorney handles my fathers estate. I never signed a retainer with him for my dad....I didnt know better at the time. he tells me that he and my uncle are trying to terminate the trust and that it was messy and basically got the feeling like...its not your worry. Thats all he told me. I was grieving my father at the time and had lots to take care of. I then get a letter from the attorney months later...stating that "as you know the the estate has terminated" (which I did not) and that I owed back taxes for the rate increase. I also found out the trust had terminated nearly a year earlier and they never told me! It terminated about a month before my brother died. They had no idea he was sick. So this lease has been null and void for a very long time and I had no idea. Also during this time and not knowing what was going on with property, I had asked this attorney to help me start with my brothers estate he died in Indiana. He kept putting me off and avoiding my requests. So now I realize, I think he purposely did not help me with my brother stuff (and he couldnt anyway since he died in Indiana and we are all in Wisconsin) that he knew that the property would need to transfer into my name. Therefore, I would own half now. Since he represents my uncle he probably didnt want to help me with that. My husband and I called him on the first letter in which had also stated that " your property ownership has now increased to 25% and your uncle owns 75%. I could not believe it! I already clearly owned 25% and it should now be 50%. It was a lie and they were trying to get away with it. In the meantime my uncle has lied to me and when I confronted him with many questions and asked to sit down with him he refuses to talk to me. PLUS, this attorney told the new attorney I hired to help me this property issue .."the property is contaminated and you should just leave this alone!" What? anyway the new att. that i hired to help me was little help after that and just dropped me. I am so confused on what to do. But I smell a RAT! Now I "owe" a big tax bill...
Submitted: 1 year ago.
Category: Estate Law
Expert: replied 1 year ago.

Your instincts do you credit: much of this scenario does not fit together.

Now, as a matter of full disclosure, be aware that I am licensed to practice in California and not Wisconsin; the nature of this forum precludes giving specific legal advice on specific circumstances. However, I can speak generally with respect to legal principles involved.

First, you state a scenario where the property was "held in trust."

But some clarification is needed:

Legally, a trust is a relationship with respect to property: Property "held in trust" is actually deeded in the name of the named trusteee, who has a fiduciary duty to managed the property for the benefit of named beneficiaries.

So, describing ownership proportions of property specific "held in trust" does not make sense, and isn't possible.

So the first step is to understand exactly who owned the property and in what form.

This can be determined by reviewing a copy of the deed on file whereever your local property records are kept -- city hall or county hall of records, etc. Be sure to also check the tax records on the property -- who is listed to pay and past due charges.

Once the exact nature of ownership is determined, anyone who thinks they may have had an ownership interest can then determine what their current interest is, and take action to secure it.

From your scenario, it sounds like the property was held either as a tenancy in common or joint tenancy.

It will depend on the exact wording of the deed: the basic difference is who receives the interest in the property on death of one of the co-owners.

In the scenario you describe, because property interests were being transferred by inheritance, I deduce the property was owned as a tenancy in common. And further, I deduce that the owners of the minority proportions, such as yourself and your late brother, merely by consensus allowed your uncle to manage the property.

Tenants in common, regardless of the proportion of their ownership interest, enjoy full right to the entire property. Though it is often true, as described, fractional owners allow the largest proportion-holder to manage it or use it. But the minority proportion-holders are still entitled to their share of the rent or sale, etc.

Unfortunately, they are also responsible for their proportional share of the taxes -- even past due back taxes.

So I am sorry to say, any past due tax bill on that property delievered to proportional owner may well be valid if they indeed possessed a proportion of ownership all these years.

The "lease" you mentioned also does not seem to fit into this scenario.

Also, as a general rule, one tenant in common cannot sell the property without consent of the other tenants in common.

So determining actual ownership of the property, in what form and in what proportions is vital.

Your visit to the property records will also reveal if the lawyer and uncle have "sold" the property, in which case an action for recovery will be available.

At that stage, it is best to engage or at least consult with a local attorney on potention action protect yourself from the credit damage to you that may flow from the unpaid back tax bill, and also to recover the value not only of your share in the property, but your share of rental value all fractional owners are entitled to.

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