Posted by Rick Harmon on July 02, 2005 at 11:54:08:
John - you don’t post as to what State you’re in, so I’ll comment as to my understanding of California probate laws and administration procedures.
You could become the successor personal rep. by having the heirs assign you their interest and nominate you as personal representative. Or, you could have one of the heirs bump the attorney and sub in (with a new attorney).
In California it’s generally a big no-no for the attorney to also be the personal rep.; typically an attorney who must step in to resolve an irresponsible P/R will merely petition to become P/R (in pro per) as a last resort. Judges don’t like this much, either.
If you become the P/R, you’ll have a fiduciary duty to all parties (creditors and heirs/assignees). If you have an heir become the new P/R, they’ll have the fiduciary duty but you give up some degree of control.
There may be other ways of handling this. Perosnally, I’d spend the money to have MY attorney represent me and keep me out of trouble. Be sure to pick someone to advise you who has a great deal of experience with both probate and real estate matters in the geographic local and court where this estate case is located.
Posted by john sterling on June 22, 2005 at 19:56:31:
Single Mom dies with will. Out of State Uncle is appointed personal Representative. After 1 month of Probate, Uncle quits and allows Attorney at Law who did the Will to be the PR, this change is done through the courts as “Appointment of Resident Agent”. 6 Months goes by and basically nothing happens. The Creditors (secured and unsecured) were all notified roughly 6 months ago as well.
Unsecured Debt is $80K or so, House is going to sale for default in Sept. for existing Mortgages. The Heirs, two children of Deceased have limited time and finical ability to solve anything or sell anything to solve. The unsecured debt is so large that the House may just go to auction and the chips will fall where they may.
They (Heirs) may/have agreed to sell the property to me at some discount, which would leave them with maybe a few thousand dollars. But- at the rate the current Attorney is working on this and considering the Attorney is now the Resident Agent, the odds of closing before the Sale Date are very slim.
My question is: Would it be possible for one of the Heirs to become
the Resident Agent or PR? Wouldn’t the Attorney handling the case
have to do this if the Heirs were upset with the way things were
going? If yes how long would it take? If this answer is yes, my next
question is this? Could the PR or say someone the PR appoints work
on getting the Unsecured Creditors to take a discounted settlement
on the debt. This unsecured debt is at extreme risk of getting wiped
out by the default sale, would there be any harm in trying to get
them to accept a discount? I would guess they (unsecured creditors)
would be very willing to talk? But maybe I am misguided here. And I
am not looking for legal advice.
Posted by John Sterling on June 24, 2005 at 10:39:31:
That the current Attorney who set up the will, who is now the PR, and who is doing nothing has also informed the Heirs that “they” would become personally responsible for the unsecured debt if the
asset sales don’t cover all the costs.
(((Nothing like quality legal services and legal advice to keep the wheels of the economy rolling!))) (SNIP) I know this is basically impossible, unless this Attorney tricks or has tricked the Heirs
into signing some Doc. around this deception. Additionally can you say Living Trust might have been a better idea maybe by about 5,000 times???
