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I am my mothers legal guardian who is joint owner of 40 wooded

acres. I would like to have...
I am my mothers legal guardian who is joint owner of 40 wooded acres.

I would like to have her 20 acres sold but know I am going to face problems as my estranged brother owns the other 20 acres.

How do I proceed in this matter expeditiously

Thank you
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Answered in 5 minutes by:
6/18/2013
Thomas McJD
Thomas McJD, Lawyer
Category: Real Estate Law
Satisfied Customers: 6,516
Experience: Real Estate Attorney
Verified

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

Does your brother own a 20-acre tract that is described separately (he has a deed describing 20 acres that is different than the 40 acres described in the land jointly owned by your and your mother)? Or are you all three joint owners to a single 60-acre tract?

Customer:

NO, there is 40 wooded acres in total. I would like it divided and my mother's half sold my estranged brother is going to battle me on this as this is were he hunts. I wouldn't want to sell it but when he was power of atty, he grossly mismanaged my folks assets, leaving very little

TMcJD :

So he owns 1/2 and she owns 1/2 - is that correct? But it's a single 40-acre tract described in one deed and they own the 40 acres jointly -- is that also correct?

Customer:

yes, that is correct

TMcJD :

Okay, thanks. Ultimately, if your brother did not agree to also sell his 20 acres, then in order for her to sell her 1/2 interest she would need to partition the land -- she would own a particular 20 acre tract out of the whole 40 acres and he would own a separate 20 acre tract out of the whole 40 acres. If he wasn't willing to sell his 20 acres, he could still agree to a particular partition. Then a partition deed could be drawn up where he would get one tract and she the other. However, it sounds like he might not be willing to even go that far. If so, your mother can force a partition by filing a court action to partition the property. If a physical partition is possible, the court will give her a 20 acre tract and give your brother a different 20 acre tract. If physical partition is not possible, then the court would partition by sale (the whole property would be sold since physical partition is not necessary and the net proceeds of the sale would be split between your brother and your mother).

TMcJD :

Based on what you've noted, it's most likely that you'll need to file a court action to partition the property (either physically or by sale). Since you are your mother's guardian, I assume that she is not legally competent to file the action herself. However, if you are guardian of her property, then you could bring such an action on her behalf. However, you would need the guardianship court's permission to do so.

TMcJD :

Plus, any court action for partition of property can be a complex legal action -- one where you need a real estate attorney to assist you. Thus, getting the proper approval from guardianship court would require the use of an estate/elder law attorney. Thus, in order to complete the action, it could get quite complicated and expensive.

TMcJD :

Of course, your mother could sell only her undivided interest in the property without your brother's consent, but the problem in that situation is that a buyer is not normally willing to buy an undivided interest in property where use will or could be interfered with by another partial owner. Thus, partition is generally the only practical solution.

TMcJD :

Please let me know if I can provide additional assistance.

TMcJD :

OR clarification on anything. Thanks!

Customer:

ok, thanks... now, we all reside in Lkae county Indiana, this land is in Pulkaski county Indiana, I do have an atty in Lake county Indiana, can I petition the court here?

TMcJD :

Let me look up the venue rules real quick.

Customer:

So what is the first thing I should do? I can tell you right now, my brother is not going to want to sell any of it.

Customer:

he blew thru my mothers retirement and

Customer:

my folks life savings or I wouldn't be so concerned about selling the 20 acres, my mother has alzheimers and I am her sole caregiver, nearing the time when Im going to need help with her...

TMcJD :

For land, Indiana court rules prefer that the action be brought in the county where the land lies. The first thing to do, then, is locate an attorney in Pulkaski County to discuss an action for partition of the property. Again, you want a real estate attorney. However, first speak with your local attorney about obtaining an order from the guardianship court that allows you, as guardian, to commence and proceed with an action to partition the property.

TMcJD :

If your brother went through all your mother's money irresponsibly and didn't use it for her benefit (and used it for his), then you might also consider speaking with your local attorney about an action against your brother for breach of fiduciary duty. That might make sense if your brother has anything that you could get from him if you won a judgment against him (cash, the 20 acres he owns, etc.)

Customer:

thank you, XXXXX XXXXX he is broke, in fact there is ten acres in lake county Indiana, my mother and I reside on one end of the ten acres, him and his wife reside at the other end, ALL ten acres and 2 houses are in my mothers name only, he refuses to pay rent and he has never paid real estate taxes.

Customer:

I do believe the Pulaski county acreage would be a long drawn out process, my main concern is to accumulate some funds for my mother's care.

TMcJD :

You're welcome. That's yet another issue you could bring up with him -- that he should be paying rent. You could sue him for back rent (but, again, if he has nothing to give you if you win, it's not worth it; but there is the part of the 40 acres he owns, so it's worth discussing with your local attorney).

TMcJD :

Yes, it will unfortunately be a difficult, drawn-out process. I wish you the best. Please let me know if I can provide further clarification or assistance.

Customer:

thank you, XXXXX XXXXX did send my brother a notice for back rent 11/12... His response was that he owned the property, Adverse possession Law, we went to court, he changed his story, says he purchased property from my father, just never had deed changed, in the meantime the taxes were due, that I paid, didn't want to lose it to tax sale...

TMcJD :

Oh, I see. It sounds like you're handling things just as well as humanly possible.

Customer:

I met with my atty last Friday, he was suppose to go to the courthouse and get a court date. He hasn't yet...This has been dragging on and dragging on....I don't know what I can do to expedite the process.

TMcJD :

Just stay on top of your attorney. Unfortunately, these things do tend to take a great deal of time and I know it does seem like attorneys drag their feet sometime. But don't lose hope, just keep following up. Of course, if it becomes ridiculously delayed, then maybe think about terminating the attorney and hiring a different one.

TMcJD :

It's been a pleasure assisting you. Again, I wish you the very best. Please let me know if I can help in the future. I would be grateful if you could leave me a positive rating for assisting you with this question. Thanks so much and have a great evening!

Customer:

In the meantime my mother's health is deteriorating and I am in need of some help with her. I guess its just the way it is... I understand things like this happen all of the time... Let me ask you this, since these ten acres and 2 houses are in my mothers name only is there anything I can or when she passes does it just get split 50/50?

TMcJD :

If she doesn't have a will, then it will get split 50/50. If she has a will, then the will determines how it is split. You can ask your attorney about her making a will. Even though she is under court guardianship, the judge may allow her to make a new will if the judge believes that she is competent to do so (the level of competency required to make a will is less than what is required for "legal" competency in other areas)

Customer:

She has been declared incompetent by the court, why I am legal guardian.

TMcJD :

Yes, I understand that but that doesn't mean she can't make a will. It is still allowed in some cases. That's something to ask your attorney about.

Customer:

I have her will but I was told it wasn't a legal document due to the wording, it is signed and notorized tho

TMcJD :

A valid will must be signed, notarized and witnessed unless it is entirely in her handwriting, dated, and signed.

TMcJD :

Thus, if it is typewritten but not witnessed it is unfortunately not a valid will

Customer:

It is witnessed, signed and notorized

Customer:

and typewritten

TMcJD :

Okay, well then it would generally be considered valid. There must be some other technical defect if you've been told it's not valid. That's something else to ask the local attorney - why is it not valid although it is signed, witnessed and notarized. Ask for a specific reason. Without reviewing the whole will I cannot say why it might be considered invalid as you've been told.

Customer:

His reason was, my father stated in his will that the farm could not be sold and was to be left to the church, he said that that cant be done

TMcJD :

You can leave property to a church. That's perfectly legal. You just can't restrict the sale of property for an unlimited period of time.

Customer:

My brother already sold the 80 acres, he took a mortgage out on my mothers house for 50k, pocketed the money... so sold the farm to pay that back...

TMcJD :

That's just another issue to deal with in a potential action against him.

Customer:

when he was power of atty

TMcJD :

I really don't think I have anything to add to my answer concerning your original question at this point -- all the additional bad acts your brother took are just additional factors that allow you to take a case against him. But, again, if he doesn't have any money, then it's not worth going after him.

Customer:

see, he wanted everything and her in a nursing home and me out in the cold

Customer:

Its a big, complicated mess

TMcJD :

Yes, I agree, and I know you now have the information you need to decide whether to proceed with any action at this point. I'm glad I could help.

Customer:

My atty is 70 yrs old and I am afraid just not on top of things, don't know where to tuen tho...

Customer:

Would I need an elder care atty or real estate atty ?

TMcJD :

Real estate attorney for the property issues. Elder/Estate law attorney for the guardianship issues (remember you need court approval from the guardianship court to proceed with a legal action on your mother's behalf)

Customer:

Think I should concentrate on the house he is living in and says he owns... would you agree??? and I do thank you for your time and will give you an A1 rating !!

TMcJD :

Yeah, I think I would concentrate on the real property (the home; the woods, etc.). Thanks -- I am grateful.

Thomas McJD
Thomas McJD, Lawyer
Category: Real Estate Law
Satisfied Customers: 6,516
Experience: Real Estate Attorney
Verified
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