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[OR] What needs to be done if a deceased person gives away something in their will that they have never owned? (self.legaladvice)

buscomom が 投稿

Rural Oregon.

Short background story is that my family and I have never seen eye to eye, and because of a history of abuse, theft, more abuse and some very nasty taking advantage of me when I was young, I haven't spoken to them voluntarily since I was 25. I'm 39 now.

The remainder of the family is my mother, my brother and my sister. My mother is terminally ill and won't see October. My younger siblings are in their early 30s.

My brother brought our mother's will to my attention two weeks ago in a nasty fashion, telling me I'll have to prepare to move out as when my mother dies, the house I live in is in her will to be given to him and our sister, along with the house contents and my car. The description and valuation of my house as part of her will are scarily current. Clearly she's been keeping tabs on me.

The only item out of any of those my mother has ever had any possession of is the car, which I bought fully from her and transferred title in 2001. The house is mine and has always been mine, I began by renting it but a year after that it came on the market and I was able to buy. I've just been able to keep my head above water but I'm doing OK and I'm only a few years from completing my mortgage.

As far as I've been able to establish, this is her correct and current will. My brother will be executor of the will. I am not named in the will at all, and I'm OK with that - it's only my property that is named. I have checked with my bank and they've assured me the property title has not changed since I bought the place and they would know before I would if an attempt had been made to change ownership.

I am also very low on funds. I own the house and car but a lawyer would be a crippling expense at the moment. Is this something I need to prepare for with proper legal help, or is it something I can safely just ignore?

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[–]Afswyn 177ポイント178ポイント  (1子コメント)

I'd recommend making at least photocopies of the current deeds and titles, and see if the bank can give you a neat little print-out of the details of your mortgage and house's deed history, etc.

If he does try anything, I presume that presenting the paper trail as evidence on your behalf will make it obvious that your mother never had claim to your assets, to have given them away, and that the whole thing is ridiculous. (She lost all claim to the car when it became yours, but past tense, present tense, whatever. She has no right to give your property away, period.)

[–]Junkmans1 52ポイント53ポイント  (0子コメント)

see if the bank can give you a neat little print-out of the details of your mortgage and house's deed history,

Don't rely on the bank for the house deed status. Check with your local county clerk's office, or whatever government office maintains the land records where you live. You can inspect these records and determine if there is anything improper which has been filed since you purchased the house and received your deed. The only thing that should be there, other than your deed, is the bank's mortgage lien on the property.

[–]frisian2Quality Contributor 73ポイント74ポイント  (3子コメント)

Ignore for now (while she is breathing nothing will happen).

If they even try to serve you then you should get a lawyer to help you out, if they ask for you to move out then you should tell them to pound sand, if they try to harass you by telling you need to move out or that they will be picking up assets then you might want to call the cops.

[–]kn33 41ポイント42ポイント  (1子コメント)

To elaborate on that last bit, try to be vigilant with your house. They sound like the kind of people that would try to get a tow company to tow your car right out of your driveway, or to just walk into your house and start taking stuff. Try to keep tabs on them if they do carry on thinking they have some sort of claim to your property, so you can try to know if they plan to show up and start taking stuff. Lock your doors and windows. Get a couple of these and put them on all your windows to try to scare them off if they start trying to get in through the window. If they show up while you're there, start recording. Tell them to leave, and if they don't you'll call the police. If they don't leave, they are trespassing and you should call the police.

[–]SonOfShem 10ポイント11ポイント  (0子コメント)

To add on to this: security cameras overlooking the driveway and easy entrances/exits from the house/yard. So if they come take anything, you have on video exactly what they took, and can go to the cops to get it back.

[–]_Mayhem_ 5ポイント6ポイント  (0子コメント)

What's wrong with telling the brother now that their mother has no legal authority to will away OP's property? Wouldn't it be better to be proactive than reactive?

[–]Eeech 69ポイント70ポイント  (2子コメント)

Just to be sure - your mother has no reason to believe she has any ownership, correct? E.g. she didn't cosign a loan or give you a down-payment, or worse, had you sign any forms such as a quit claim deed? Even if not, you can hire a title search company to run a check to assure there are no potential tricks being played. I've made quite a few real estate purchases from estates and have seen plenty of unreal, nasty tricks people have tried to pull. Hell, my own mother tried pulling a free stunts both some time after divorce and again after his death trying to claim entitlement to a house awarded to him 100% in the divorce. He owned it free and clear before they even met and they never lived in it.

Money and revenge are astonishing partners when it comes to motivating people to do shitty things.

[–]Matthew_Cline 12ポイント13ポイント  (1子コメント)

or worse, had you sign any forms such as a quit claim deed?

Or had you sign something that you didn't fully read because she didn't give you enough time?

[–]Frognosticator 1ポイント2ポイント  (0子コメント)

I find it hard to believe that even if that had happened (unlikely), it would be upheld in court. Contracts created under undue influence are unenforceable, and deception certainly counts.

That said, you'd still have to contest it in probate, which could run quite a bit in legal fees.

[–]TheShadowCat 65ポイント66ポイント  (1子コメント)

Tell your brother that your mom can't give away stuff that legally belongs to you. I might even open with "hey moron".

I especially love the part where all the contents of your home go to them. Like somehow you're going to be left on the streets without even your clothing.

[–]notsooriginal 4ポイント5ポイント  (0子コメント)

The whole thing is ridiculous. It's not like they're young kids living at home anymore when Mom takes Johnny's toy and gives it to Susie to teach him a lesson about sharing. They're adults! There's a legal framework!

[–]Eletal 57ポイント58ポイント  (1子コメント)

Call your local police and sheriffs office (non emergency) just let them know that there are currently fake documents floating around regarding ownership of your house and that they should under no circumstances "escort" someone onto the property. This is just a precaution if say you were out of town and your brother showed up at the house with these fake papers and called them or a locksmith to get access.

[–]Bad_Eugoogoolizer 18ポイント19ポイント  (0子コメント)

This seems like a very good idea. It may be worth even going in to them, showing all your paperwork in advance to explain the situation.

[–]ChemPossible 94ポイント95ポイント  (11子コメント)

Ignore for now, but if you're served with ANYTHING, you must respond.

I cannot even imagine under what grounds he could serve you though. He will probably just harass you, in which case, you just contact the police.

[–]buscomom[S] 30ポイント31ポイント  (10子コメント)

That's what I've been presuming he'll try. From my understanding a property must first be transferred from ownership by the deceased to the executor himself, and only then can it be sold, split, given away etc. Is that the general truth of the matter?

If so it would give me a focus to keep an eye on, if it would have to be him obtaining possession, rather than say the state jumping in and taking ownership before giving it to the 'right' people.

This is probably why I will need a lawyer in the end I guess.

[–]ChemPossible 67ポイント68ポイント  (0子コメント)

He can't send your house to probate. He just....can't.

That's why I say I cannot even think of a way for him to file anything. I'm thinking he will just wave the will around and tell you to give it to him.

You tell him to contact your lawyer, if that happens.

The state isn't going to step in and do anything.

[–]longneck 31ポイント32ポイント  (0子コメント)

From my understanding a property must first be transferred from ownership by the deceased to the executor himself

No. The executor acts on behalf of the estate directly.

[–]NewMachinist22 19ポイント20ポイント  (5子コメント)

Your mom has no more legal right to give your house away than I do.

[–]notsooriginal 10ポイント11ポイント  (3子コメント)

So.... I heard you might be giving away houses?

[–]abitRandom 5ポイント6ポイント  (2子コメント)

If he doesn't come through, I'll give you NewMachinist22's house.

[–]notsooriginal 2ポイント3ポイント  (1子コメント)

Ah, that's such a relief. I don't want to be greedy, but can I have his clothes too? I think there might also be some bread. Definitely add the bread.

[–]abitRandom 1ポイント2ポイント  (0子コメント)

My brother says yes for the clothes, maybe for the bread. I'll see if he changes his mind later and let you know.

[–]pandito_flexo 3ポイント4ポイント  (0子コメント)

Ooooo is this the line for dwellings? I'd like a nice 3-bedroom in the center of the City, near Alamo Square park with 2.5 bathrooms and a garage, please. Yards are optional but a nice little backyard would be splendid. Thanks!

[–]Junkmans1 6ポイント7ポイント  (0子コメント)

From my understanding a property must first be transferred from ownership by the deceased to the executor himself, and only then can it be sold, split, given away etc

There is not transfer from the deceased to the executor. Rather the executor deals with the disposition of property which was owned by the deceased by either selling it or by distributing it (transferring title) to the beneficiaries/heirs of the estate. There are a few exceptions such as cash money, which is often transferred into a bank account in the name of the estate, and other titled assets which for some reason might not be sold or distributed for a long period of time. In these cases the title might be transferred from the deceased's name to the name of the estate just to make administration easier over the long run. For example cash might be transferred from a bank account that was titled John Doe to one titled Estate of John Doe, or something like that.

But in any event the only property controlled by the estate or the executor is the property owned by the deceased which was not jointly titled with others and which did not have a designated beneficiary (such as a life insurance policy or IRA usually has). Since your property was not owned by the deceased the estate has no control over it.

[–]shinyhappypanda 5ポイント6ポイント  (0子コメント)

Look at it this way, could she give him a random stranger's house? Imagine there was a house she decided would be nice for him. She's never met the owner of 1234 Whatever Street, but she looks up the value online and puts in her will that she leaves 1234 Whatever Street to him and that it's valued at $XYZ. And then after she passes, he tells the owner, Mr. Bob, that his mom said he could have that house. It was in her will and that's a legal document! Mr. Bob laughs in his face.

Should he try to take Mr. Bob to court, Mr. Bob would bring copies of the records showing he is the homeowner and that he was making payments to the bank on a mortgage his name was on. And then the judge could laugh in his (your brother's) face.

[–]Rockguy101 33ポイント34ポイント  (0子コメント)

Finally one I can help with. The best advice I can give you it to get copies of everything. Recorded copies that the county has recognized which will hold up if anyone tried to claim your property. You can get them here click on your country call the recorder or clerks office and get a recorded copy of your mortgage/deed of trust and any other documents such as a release or satisfaction of mortgage if once you have paid it off. Some counties have free websites where you can print it off for free or a couple of dollars. Also get your property tax records in order if they aren't.

If you need help let me know I can direct you. Just let me know what county.

[–]northshore21 15ポイント16ポイント  (0子コメント)

It's always good to prepare yourself with an emergency fund but I don't think you need to scout out lawyers yet. You know your brother best. Do you think letting your brother know now that you bought the house over a decade & a half ago & it's not your mother's house would prevent lawn tantrums?

One thing you can do to prepare yourself is to install cameras for the eventual claim of harassment against your brother.

[–]Averaz 11ポイント12ポイント  (1子コメント)

Take pictures of EVERYTHING in your house! Just in case one day you come home to see half of your stuff gone.

[–]Wookie81 1ポイント2ポイント  (0子コメント)

Further more put up some hidden cameras recording your main entries/hallway. Maybe store unreplaceable belongings and titles somewhere else. Call the police if they try to enter or steal anything. If you know your neighbors tell them to do that as well or at least call you.

Not much else you can do...

[–]SnDMommy 11ポイント12ポイント  (0子コメント)

In addition to the great advice you've already gotten, I would also suggest keeping a close eye on your credit. Go ahead and pull your free copy now, if you haven't already in the last 12 months and make sure everything is clean/valid. Only use one of the three now, so you'll still be able to pull another in a few months after she passes. For extra precaution, you might also want to put a freeze on your credit. Since they're already trying to play stupid games, I wouldn't put it past them to try something.

[–]taterbizkit 7ポイント8ポイント  (0子コメント)

IF the house and car are yours and you've got documentation, they're yours. But also collect your property tax records for the house. "Well, then, who has been paying the taxes?" sometimes settles it if there is any kind of legit dispute.

[–]crimsonBZD 6ポイント7ポイント  (2子コメント)

IANAL, but I have the title to my car and it has my name on it and only my name. If someone then tried to come along and say the car was theirs, or tried to sell the car to anyone, they would not be able to because they don't have the title, and their name is not on the title.

So long as you can prove you own the home and the car, I don't think there is anything they can do, at all.

The most alarming part is "all the possessions" and if your family tries to itemize and draw it out, it could be very difficult to prove you bought that couch, that loveseat, that stove, that tv, that other tv, etc.

But, as always, it's better to be safe than sorry. Gather your documents, make local police aware of the situation and that you believe your family might mean you some sort of financial harm.

After you're done doing that, make sure to secure those documents in something like a safety deposit box, something you can get to that is secured by a third party and offsite.

[–]dillon-nyc 2ポイント3ポイント  (1子コメント)

The most alarming part is "all the possessions" and if your family tries to itemize and draw it out, it could be very difficult to prove you bought that couch, that loveseat, that stove, that tv, that other tv, etc.

If the house is his, and the car is his, I think the burden of proving that the contents inside the house actually belonged in the estate would fall on the executor.

Otherwise, I'm pretty sure I'm going to will the contents of Fort Knox to my heirs.

[–]crimsonBZD 0ポイント1ポイント  (0子コメント)

I've seen that particular thing happen before though. When my grandmother passed, she made my mother executor and was very specific on how specific items would be divvied up.

Well, other parts of the family started digging out 10 year old receipts for gifts for like... $20 end tables and shit and started challenging every single item. Some of it they won because they had a receipt and you can't exactly argue the circumstances of a gift with a dead person. Some things are still being disputed, like our kitchen table, which is actually a form of family heirloom as it was actually my grandmother's grandmother's table.

I realize it's not the exact same circumstances, but receipts don't have names on them and if they want to push the issue, it seems at least in my state, IL, they can.

*edit: oh, and we're in a several year legal battle over a prepurchased burial plot that was clearly meant for direct blood relatives, but someone's husband is trying to make a case that they are the inhereter of the grave plot (for some reason) and they will be the one buried there. They have no blood relation to us, his wife will not be buried there, and ultimately if he is buried there he's going to be next to a bunch of my family that he has never met, while family members are off buried somewhere else. Also he's 30 something and is in excellent health.

[–]Marzy-d 5ポイント6ポイント  (0子コメント)

Has this "will" been prepared by a lawyer of any sort? Or did she just write it on a cocktail napkin? You can contact your mother's lawyer and inform them that her will improperly mentions your property. They would at least then be ethically obliged to tell her to correct it.

[–]Grimsterr 19ポイント20ポイント  (5子コメント)

Write up your own will that says when you die everything he owns AND your mom owns goes to <someone of your choice> and say "HAH two can play at that game".

[–]SJHillman 25ポイント26ポイント  (3子コメント)

Upon my death, all of my belongings shall transfer to the man or animal that has killed me. Plus any cool shit my mother and brother own.

-OP Swanson

[–]SuperFLEB 4ポイント5ポイント  (0子コメント)

Why wait? Make it for when someone else dies. Preferably someone who's already dead.

[–]OrangerySky 4ポイント5ポイント  (1子コメント)

Please say you bought title insurance when you purchased your house. If you did they may be able to handle this.

[–]improperlycited 2ポイント3ポイント  (0子コメント)

I don't think title insurance protects you from things that happen to the title after you purchase the house, but they should be able to recommend a good attorney.

[–]hungrydruid 3ポイント4ポイント  (0子コメント)

My brother brought our mother's will to my attention two weeks ago in a nasty fashion, telling me I'll have to prepare to move out as when my mother dies, the house I live in is in her will to be given to him and our sister, along with the house contents and my car. The description and valuation of my house as part of her will are scarily current. Clearly she's been keeping tabs on me.

Have you actually read the will yourself, or was this all from your brother? It's decently easy to find out how much a house might be worth.

[–]IT_Chef 3ポイント4ポイント  (0子コメント)

If you do not have your deed or title on hand, reach out to your title company and get your records. There may be a small fee for document retrieval, but that should be more than sufficient in the event your brother's lawyer contacts you.

[–]Hiredgun77 2ポイント3ポイント  (0子コメント)

Lawyer here.

Ok, let's talk Wills for a second. The Will does not actually have legal weight behind it. It's not a court order. So the police aren't going to look at it and say "You have to move out". It is only a document that describes your mother's wishes about what should happen to your her estate.

When your mother passes a probate will open to disperse the property in the Will. At that point the Executor takes the Title which is supposed to be in the deceased person's name and have it transferred to the new owners. If the name on the title does not match the name on the Will then the Probate won't do shit (that's a legal term). Granted State's differ but this is general Probate advice.

Don't rely on the bank. They are not a legal entity. Instead go to your County's Recorder's office or Clerk's office and get a copy of your property deed. Also check to see if anyone has placed a lien on your property. You can have a title company do this for you but if funds are low you can do this yourself....just prepare to spend a few hours at the County building.

My advice would be to put everyone on notice now that you are the sole owner of the property. The reasoning being that 1. your siblings may not know and 2. it sets up a paper trail that you've given them prior notice. If you have to get an attorney later then they might be able to use your efforts to support a payment of attorney fees.

good luck!

[–]citybadger 0ポイント1ポイント  (0子コメント)

I question if such a bizarre will would be easy to successfully contest. If so, OP may then be entitled to a share of the estate.

Even if OP doesn't want to take it that far, the threat of such an action may cause his brother to back off.

[–]OrangerySky 0ポイント1ポイント  (0子コメント)

I was thinking if the brother said mom gave me the house get out, the title insurance lawyer could send a letter asking the basis of the claim. Since there is no basis the letter might do the trick.

[–]suebob_42 -5ポイント-4ポイント  (1子コメント)

I own the house contents and my sister.

[–]sirspidermonkey 0ポイント1ポイント  (0子コメント)

But do you own the contents of your sister?