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  1. #1
    Join Date
    Dec 2019
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    5

    Default Transfer of Property Without or Before Probate

    My question involves estate proceedings in the state of: GA

    My father died in 2011 and left me as executor of the will. There were two wills, one split the estate 50/50 between me and my sister, and the other 70/30. The later will was signed after the other one so would be the one in effect. We have an estranged brother that we have not seen or heard from in over 30 years and he was not included in the will. All that is left of the the estate is the house, no mortgage but with an IRS tax lien. There may be some medical bills owing. Legal title to the house is only in my father's name.

    After my father died, my mother moved into the home against my sister's wishes. My sister has been trying to get her to move and come and live with her for years and my mother will not budge. My sister and her husband had a failed business and are now wanting to file bankruptcy. She was told by several bankruptcy attorneys that the Trustee will take the home and sell it and displace my mother. She has been on me for years to sell the home and distribute the inheritance but I obviously wanted to let our mother continue living there. Now my sister is threatening to sue me for lost income (rents) and emotional distress. I think that we can work this out somehow if I buy her out of her share the house but since she needs to file bankruptcy right away, we need to avoid the Trustee taking and selling the house. Since I do intend to buy her out, I could front her a little bit of the money to get some of the creditors off her back for a while but is there anyway we can sell or transfer interest in the property for money before it goes through probate? She offered to quitclaim the deed to me in lieu of a payment but I don't think she can do that if she doesn't own the property.

    Any advice on how to get this done quickly so that she can file bankruptcy and I can keep the property and not have our mother displaced?

  2. #2
    Join Date
    Nov 2013
    Posts
    6,822

    Default Re: Transfer of Property Without or Before Probate

    Your father died in 2011 and you never filed for probate. If you had, you would own 70% of the property and your sister would own 30%. As of now neither you or your sister own the property. It is still in your late father's estate. At some point, the IRS lien will have to be paid off by the estate before it is given to whoever gets the property in whatever proportions.

    Now since you nor your sister own the property it is not subject to sale by the trustee in your sister's bankruptcy. And even if it was, she would only own 30%. That would require a partition suit to sell the property.

    You need to run this by an attorney. You will not get a definitive answer on a legal website.

  3. #3
    Join Date
    Dec 2019
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    5

    Default Re: Transfer of Property Without or Before Probate

    She told me that she was advised by at least three attorneys that because she has an "interest" in the property and is an heir, the Trustee will most likely act as executor of the estate and distribute the property. She plans to contest the 70/30 will and she said she will also sue me for lost income on the property after the bankruptcy. Essentially we could have rented the property rather than letting our mother live there. She has projected about $30,000 in lost income in the form of rents. She also wants to press charges for failure to probate and says I can get fined for that and possibly serve jail time. She also claims, and this is true, that I told her and my mother that if she would allow my mother to live there for a while, that I would finally probate the 50/50 will. In all honesty, my father has some mental and emotional issues and he was angry at her for something when he changed the will. However I believe that my mother was present when it was changed. It might look suspicious and I also had power of attorney at the time that she is claiming I abused. For instance, I cashed in his annuity and didn't tell him and it was a bad decision on my part and that is the reason the IRS is owed. But she did receive some of that distribution.

    I agree that I need to run this by an attorney and I plan on doing just that but I want to see if their are any other missing pieces here I need to consider before doing so. Is it possible even though no one owes the property for me to buy out her "interest" in exchange for her not contesting the will, bringing up any past grievances, a request for an accounting and have her sign an agreement that once the will is probated, all of her interest in the property is given to me?

    I have one more question arising out of pure curiosity. What if in this case, there was no will at all. What would happen if she filed bankruptcy and the Trustee seized the estate to probate it? Could we both contest any distribution to the estranged brother? We think he lives in Florida and has a son living here in Georgia. He may be dead. If that were the case, would his part of the estate if unchallenged, be passed to his own son?

  4. #4
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Transfer of Property Without or Before Probate

    The trustee is likely to file probate and file to be appointed executor since apparently nobody has bothered with it in the time since your fathers death.

    your sister has no claims against you from what I see regarding lost income. She had the right to file to open probate herself since you failed to

    and an executor is not an executor until probate is filed and the court appoints you as executor. Until that time you are nothing more than a nominee.

    if your father was not mentally competent (you mentioned mental issues), your sister may very well be able to challenge the second will. You do not have the right to simply ignore the second will. It is his last will and testament and you have to present it for probate. Not filing the last known will would be violating your duties as the executor. It isn’t your choice to make the decision of which will to probate.

    Your issue about cashing in your fathers annuity sounds like a lot of problems may be headed your way. If it was before his death, it sounds like you may not have acted in his best interest. If you cashed it after his death, well, you had no authority to do that. Either way I suspect there are problems with the action.


    There is a look back period involving financial transactions prior to filing bankruptcy. Unless she waits beyond whatever period may apply before filing bankruptcy, the trustee has the power to involve themselves in your deal and even unwinding it if it doesn’t provide the bankruptcy court with the best benefit.

    it sounds like both you and your sister need to be consulting with attorneys.

  5. #5
    Join Date
    Dec 2019
    Posts
    5

    Default Re: Transfer of Property Without or Before Probate

    Quote Quoting jk
    View Post
    The trustee is likely to file probate and file to be appointed executor since apparently nobody has bothered with it in the time since your fathers death.

    your sister has no claims against you from what I see regarding lost income. She had the right to file to open probate herself since you failed to...
    She claims she has been emotionally manipulated by myself and our mother. She suffered a miscarriage a month after our father died and suffered depression and confusion. To complicate matters, our mother sent her a text the other day telling her she screwed herself because I planned on giving her half of the value of the home, really the only thing left in the estate at this point, because of her own plans to file bankruptcy. She claims had the will been timely probated and if she had not been manipulated by the fact that there were two wills, then she would have not been harmed. Right now, my mother has turned my other half brother against her because of this, and is not speaking to her. Things have really gotten out of hand. She also claims I have acted in bad faith in handling the estate.

    I can afford an attorney but my sister can't. If she claimed personal injury regarding this estate to the bankruptcy Trustee could they pursue those claims on her behalf? How likely would this be to happen? Could the Trustee investigate the reason the IRS debt is owed in the first place and seek a full accounting of matters while I had power of attorney?

  6. #6
    Join Date
    Jan 2011
    Posts
    338

    Default Re: Transfer of Property Without or Before Probate

    Quote Quoting techbro21
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    All that is left of the the estate is the house, no mortgage but with an IRS tax lien. There may be some medical bills owing. Legal title to the house is only in my father's name.
    How was the rest of "the estate" dealt with if probate wasn't opened? Or was the house the only asset?

  7. #7
    Join Date
    Dec 2019
    Posts
    5

    Default Re: Transfer of Property Without or Before Probate

    Quote Quoting bcr229
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    How was the rest of "the estate" dealt with if probate wasn't opened? Or was the house the only asset?
    There is a bank account and I still owe the estranged brother $1000. It was distributed correctly other than that but I suppose she’ll want an accounting. I took his guns and jewelry. She could complain about that.

  8. #8
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Transfer of Property Without or Before Probate

    Quote Quoting techbro21
    View Post
    There is a bank account and I still owe the estranged brother $1000. It was distributed correctly other than that but I suppose she’ll want an accounting. I took his guns and jewelry. She could complain about that.
    distributed correctly according to what and by what authority? Until you file to open probate or if available in your state some sort of small estate administration, you don’t have the authority to act as an administrator.

    If you haven’t opened probate, you have just admitted to stealing the guns and jewelry from the estate.

    you need to talk to a lawyer.

  9. #9
    Join Date
    Dec 2019
    Posts
    5

    Default Re: Transfer of Property Without or Before Probate

    I spoke to an attorney and she told me that if my sister doesn't raise any issues, we might be able to sweep some of this under the rug or make it look less suspect. I admit that I handled it wrong. Does this sound accurate or should I keep shopping for advice and take the one that gives me the worse case scenario?

  10. #10
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Transfer of Property Without or Before Probate

    sorry but I can’t condone possibly criminal activity. You’re on your own.

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