[lit-ideas] Re: Calling all attorneys.....
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Mon, 1 Oct 2007 03:04:29 +0100 (BST)
John's advice is right imo: you need as much of a specialist as you can get.
What I am about to say is partly obvious and may not be useful or what you
would like to hear; but I offer it anyway, just in case and feeling sympathy
with your situation...
You should be able to cut down costs by doing as much legwork as possible and
being clear what you want the lawyer, who is just an agent, to do:- e.g. have
all the paperwork sorted as far as possible etc. with clear and direct
explanations of the aspects of the situation. This may state the obvious but
many clients seem to forget that lawyers charge for any work they do: so if
you ask them to do work that you could do (e.g. sorting out papers, go on a
fact-finding mission) you will pay for something that you need not. What you
want to pay the lawyer for is only what you need them for - not
'administration' if this is avoidable but only the specialist legal advice on
what steps you should take.
Costs have to be a paramount concern. Always find out how they charge etc (if
it's by the hour ask them to speak faster). Never leave an open and running
account which you do not monitor:- the final bill may be a nasty shock. You
have to weigh things like the %chance there is of gaining x against the %
chance of not and therefore losing y. All obvious but also often lost sight
of.
It also follows that sometimes the best legal advice is 'there is nothing you
can do' (i.e. anything you might try would most likely being throwing good
money after bad). It seems to me what you want is definitive advice on what
if anything can be done to ensure you remain in the property, even if this is
'nothing can be done, sadly'.
The U.S. has inherited the English common law system (after a fashion) and if
the English system is anything to go by there are any number of complications
that local or 'state' law might graft on to basic common law rules. This is
why I would advise you need a lawyer or specialist legal advice (some
non-lawyers do of course become expert in areas of law - and these may be a
very useful and inexpensive resource, if you can find them e.g. someone who's
been in the same situation).
Presumptuous though it may be to venture anything on the law in the relevant
jurisdiction my impression is that amongst the things you first need to
clarify is what is the last *proveable* will (if any)? The situation already
seems messy on this point.
Dare I raise some possible issues based on my (limited) knowledge of the
relevant English law insofar as this might be analogous?
> My home is in
> my Mom's name (it was what she wanted me to have, and he agrees with that,
> knows that, acknowledges that)
In English law (for what it's worth) the testator's intentions are for the
most part irrelevant *even if they are well-known and 'accepted'*: all that
matters is what is in the will or, alternatively, the provisions on
intestacy. That is, the contents of the will 'trump' everything - even if it
can be shown that the will fails to express the testator's proveable
intentions it is the will that determines dispositions, not those intentions.
You can imagine the potential mess if this were not so. The court on death
want an official document that settles dispositions (i.e. a will) and do not
want to get involved in costly and intractable disputes as to what the
testator really wanted or intended. There is a public policy that the law
should not entertain avoidable disputes and the idea of a will is that it is
a device that can be used to avoid disputes and if it is not so used the
courts will not want to get involved (intestacy rules will apply, for
example).
A will is a special kind of document with strict formalities and if those
formalities are not complied with it is a nullity. English law has allowed
certain trusts (e.g. 'secret trusts') to allow the disposition of property on
death to be made on trusts that operate outside the will; but I do not know
if the U.S. has some equivalent nevermind how such exceptions might apply in
your case. Also dispositions of land here have their own formalities (e.g.
they must be by deed). My guess is that U.S. law will have some similar
requirements effectively requiring that there be a paper trail that can be
followed to analyse the legal situation. Establishing that trail seems to me
the (obvious) first-step in your case.
>and for some unclear reason my step-Dad's
> name is not on the deed.
You do not say whether or not they were married: this could make a crucial
difference in English law as to whether the step-Dad took a share of the
property by virtue of marriage and therefore outside of the will.
On the last part of your post three comments, none of which you may
particularly care for but which reflect my understanding of the situation in
this jurisdiction:
1) In English law there are a number of complex concepts, eg. the 'trust for
sale', that have the effect that even when persons obtain land/realty they
may do so subject to a (defeasible) obligation to sell it even when they have
no such intention and only want to stay put. This is (partly) because the law
of property sees most property as replaceable by money and uses this
assumption to solve problems by putting monetary values on things and then
dividing up (you can't usefully divide a painting in half but you can give
its two joint owners each half of its monetary value). So it would not at all
surprise me that the U.S. courts may have a power to order sale.
2) The power to order sale seems especially plausible re the bank loan. In
England the courts have developed a concept of the 'mortgage' - effectively
people get a loan (from a building society or bank usually) and buy a house
subject to a contract of repayment. The terms of these contracts can vary.
But what is interesting about the mortgage is that it is an amalgam of three
distinct and usually distinguishable transactions - loan, investment and
conveyance/transfer (in the case of a 'normal' loan to X by Y, Y acquires no
property rights in what X buys with the money (e.g. a car), Y is not seen as
a joint investor in such property etc.; no property is transferred to Y
etc.). With a mortgage the upshot is that the lender effectively is a secured
creditor with the loan secured against the value of the property; but more
than that the "lender" effectively has rights that are "owners'" rights e.g.
to sell the property out from under the borrower if the borrower defaults on
repayment; to have all the outstanding 'loan' repaid from proceeds of sale
before the borrower gets anything from the proceeds; and indeed to get the
property back from someone else if X has disposed of it (subject to a
jurisdictional limit: the bona fide purchaser for value). Institutions would
be loathe to make such a substantial loan if this were not so. My instinct
therefore is it may very well be that the court has a power to sell so that
the bank can get its outstanding money back. Your step-Dad may be right that
this can be forestalled only by re-arranging a new deal with the bank. Put
another way: a house bought by way of a loan that is secured on the property
cannot be disposed of as if the loan did not exist - this would create a
potential windfall situation for the borrower and their intended
beneficiaries.
3) As per your step-Dad perhaps having acquired an interest by virtue of
marriage, there is the possibility that your mother disposed some kind of
legal interest in the property to you in her lifetime. For example, some kind
of tenancy or right of occupation or some interest under a trust? I raise
this possibility because it might be a way of getting round the problems
there appear to be with the will. Again this is a possibility that would
require specialist consideration.
>Hence, the probate court has apparently issued a
> demand that the house be sold out from under me to address any debts she
> had
> at the time that she died -- the bank loan on the house being a major part
> of said debt. According to my step-Dad even if I had a good deal of money,
> unless I were able to refinance and purchase the house in my name, the
> court
> has the prerogative to force the sale of my home.
>There is a I find this a tad
> disconcerting. I'm going to do a good bit of on-line research, but my
> experience with the legal system is that atty's generally know more about
> what actually transpires than one can glean from the what is supposed to
> transpire scenario. My step-Dad's perception, though, is that the house
> does not "belong" to anyone but my Mother, and the court can sell it out
> from under me tomorrow if they wish. It's been my home for 15 years.
Best,
Donal
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