I pose this difficult scenario, which may seem as if it came from a law exam, but is the sad reality I live day to day. .
My brother allegedly murdered my parents. State Police have a full video taped confession and he does not deny the act. I (administrator of the estate) am the only other sibling of my parents, and they did not have a will. My brother does have an ex-wife and an alleged child (born out of wedlock), along with an ex-girlfriend and two alleged children by her (born out of wedlock). A DNA test is needed.
As court appointed administrator, I have disposed of all personal property. I purchased some estate property via a private sale to myself with the written approval of my brother and two estimates on the property’s value. This was done to pay estate debts. Later, I disposed of the remainder of the estate’s personal property by way of a public auction. One piece of real estate (home) was sold to finish paying debts following the Kentucky Revised Statutes 389A.010 (listed below), and one piece of real estate remains.
Later I wanted to purchase the remaining real estate and the estate attorney advised we follow the same statute (389A.010). I had an appraisal done and we mailed notice to my brother and his children (they may have a contingent interest) and waited 30 days. No objection. A motion was prepared for district court, appeared at court, and it was approved by the JUDGE and the surety bond increased, waited 30 days for any objection and then the attorney (my estate attorney) now refuses to write the deed unless the deed is a quit-claim deed from the children, my brother and the money is deposited to them in his escrow account. I refuse to have a deed with their names on it or to deposit the money anywhere but the estate account unless ordered to by the judge.
My estate attorney tells me that the real estate is not property of my parent’s estate, but property owned by me, my brother and his children, due to his murderous act. Currently Kentucky does not have a slayer statute. My brother has been in jail 1 ½ years and is still awaiting trial. The trial should be another 2 years in the future, so he has not been proven guilty, so he must currently be presumed innocent.
If the real estate is not estate property (of which I do not agree) who is to pay for the taxes, insurance and upkeep? I currently use estate funds to pay the necessary bills on the real estate and I perform all maintenance (hoping to be reimbursed when the estate is able to be settled). If this is true (I do not agree) I am in trouble for spending estate funds on this property. Under this assumption I would need to take out a lien against my brother and his children’s half of the property for the maintenance, since they have no money.
The plot thickens as the estate attorney represents my brother’s ex-mother-in-law in a large retail store lawsuit (7 million) but swears it is not a conflict of interest. Who do you think he represents most? The 100 K estate or the 7million suit? The mother-in-law or the rest of the family does not work and the lawsuit has been appealed for 5-6 years now and they need money immediately or so I believe.
Since I disagree with my estate attorney he wrote me a letter telling me to get a second opinion. I got three second opinions and I am told that all is legal. I am told the judge’s order is all that is needed with the previous steps taken under KRS 389A.010. I am also told not to deposit the money anywhere but the estate account, or I will likely have to pay for the real estate twice. One of the second opinion attorneys tells me to fire this guy, and the other two tell me to let him release me from his counsel.
I relay the second opinions and the attorney will not release me, but writes me a letter to “Whom it may concern” stating that he does not feel comfortable making the deed as he thinks it passes by intestate succession to my brother (plus his kids) and myself. He also states that he has advised me to seek a second opinion and has no objection to another attorney preparing the deed.
I do not think another attorney will write the deed under these conditions. Is the estate attorney correct on all of his points or should I fire him? I can wait for a while on the property, but would like to settle my part of the estate and put my brother’s portion aside till a judge tells me what to do with it.
Should I have the estate attorney to make a motion to have the kids tested for paternity? I do not wish to ask the mothers myself.
Where do I look for case laws or precedent laws pertaining to Kentucky and the Slayer Statute? Google will only get you so far.
What to do??? What to do???
KRS 389A.010 Jurisdiction of District Court -- Adversary proceedings to be in Circuit Court.
(1) Notwithstanding any other statutory limitation of the jurisdiction of the District
(a) Any trustee, guardian, conservator, or personal representative (hereinafter
"fiduciary"), not otherwise possessing a power of sale, may move the District
Court of the county in which the fiduciary has qualified for an order granting
the fiduciary the power to sell or mortgage any real estate or any interest
therein possessed by his ward, decedent, or trust; and
(b) The District Court may enter an order granting the fiduciary the power to sell
or mortgage any real estate or any interest therein possessed by the ward,
decedent or trust.
(2) The motion shall include an adequate description of the property, a summary of the
grounds for the motion, and a request that the bond of the fiduciary be increased in
an adequate amount in accordance with KRS 395.130.
(3) Unless waived in writing, written notice of the hearing with a copy of the motion
shall be served in a manner authorized by the Rules of Civil Procedure for the
initiation of a civil action upon all persons who have a vested or contingent interest
in the property interest sought to be sold. Where the property interest sought to be
sold belongs to a person under legal disability, service of notice and defense shall be
governed by Civil Rules 4.04(3) and 17.03.
(a) In the case where the subject of the action is the property interest of a person
under legal disability, unless waived in writing, written notice by certified
mail, return receipt requested shall be given to all known adult next of kin of:
1. The nature and pendency of the action; and
2. Not less than thirty (30) days' notice of the time, date, and location of the
hearing on the motion. At or before the hearing, the fiduciary or his
attorney shall file an affidavit on personal knowledge showing
compliance with this paragraph and attaching a copy of the notice given
and the original of all receipts returned.
(b) All such persons shall have standing to present evidence and to be heard at the
(4) An aggrieved party may no later than thirty (30) days from the date of the order,
institute an adversary proceeding in Circuit Court pursuant to KRS 24A.120(2) in
respect to any order affecting the right of the fiduciary to sell or mortgage. Pending
the entry of a final order and expiration of the time for an appeal therefrom, neither
the fiduciary nor the owner of any vested interest shall make any conveyance or
mortgage of the real estate and any attempt to do so shall be null and void.
(5) No proceedings under this section shall be conducted by or before a commissioner
of the District Court.
Effective: September 1, 1998
History: Amended 1998 Ky. Acts ch. 517, sec. 9, effective September 1, 1998. --
Amended 1988 Ky. Acts ch. 90, sec. 1, effective July 15, 1988. -- Amended 1984
Ky. Acts ch. 111, sec. 157, effective July 13, 1984. -- Amended 1982 Ky. Acts
ch. 141, sec. 145, effective July 1, 1982; and ch. 277, sec. 4, effective July 15, 1982.
-- Created 1980 Ky. Acts ch. 87, sec. 2, effective July 15, 1980.
Legislative Research Commission Note (6/24/2003). Under the authority of KRS
7.136, the Reviser of Statutes has changed a reference in subsection (4) of this
section from "KRS 24A.120(1)(b)" to "KRS 24A.120(2)."