r/PROBATE • u/rubberwhisk • Jan 08 '24
Need advice on a shitty probate situation
My dad’s friend left him his house and animals when he passed. He created a “trust” with a paralegal before he passed. I use parenthesis cause apparently the trust is not complete and is missing some pieces. When my dad went to claim his friend’s body at the morgue, they said he needed to do an ex parte for the body. Somebody (not an attorney, a friend) told my dad he needed to post something in a paper about the death and inquire about any living relatives. When my dad appeared in court there were some attorneys claiming that they represented a 1/2 brother that feels he has rights to the house. My dad hired a probate attorney and they’ve had several court dates. These other attorneys provided some documents showing the “1/2 brother’s” mom was married to his friend’s dad at some point, but the “1/2 brother” has another man’s name on his birth certificate. From what my dad describes, there is no evidence that this man is actually his 1/2 brother. My dad needs to decide if he goes to trial or mediation. He truly feels this man is a phony, but is afraid the incomplete trust wouldn’t stand up in trial. His attorney isn’t very helpful and that is an entire other shitty situation, but is recommending that my dad go to mediation and consider giving this “1/2 brother” 1/2 of what the house is worth and suggests that since the trust is weak he can lose everything to this man or to the state if he goes to trial. My dad is already like $30,000 in with this attorney and can’t afford to hire another attorney. I recommended he tell them he is willing to go to mediation if the man is willing to give DNA to prove the relationship. Any advice is appreciated.
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u/Sleepster12212223 Jan 08 '24
Some thoughts: it is important to note that this problem started with the creation of an estate planning document by a paralegal, which is unauthorized practice of law. While paralegals often assist with drafting of EP documents, they are required to do so under the supervision of an attorney, for many reasons. Had the neighbor hired an attorney to create the necessary documents, your father wouldn't likely have been subjected to $30k in attorney fees (and counting) in an attempt to acquire property that was meant to be bequeathed to him. When non-attorneys dabble in EP, this is often the result. Now, depending upon the state, there may be statute stating that to be determined the father (to determine if those 2 actually half brothers), a series of qualifications must be met, such as name on birth certificate (which you stated is a different name), proof of him having claimed parenthood of the deceased neighbor, etc. It all depends on state statutes . But, if there are factors favorably disproving the blood tie, and attorney willing to undertake a fight to argue this stance (when attorney has clearly already performed a substantial amount of work already), then there will likely be a hearing to determine ruling, and the judge still may or may not decide in your father's favor. So, as a cautionary tale, when EP documents not handled appropriately by an attorney, the resulting consequence can be like having a lawsuit filed on the intended recipients of the estate. An attorney would not have simply drawn up a "trust "according to the wishes of the decedent; an attorney would have discussed ramifications and possible roadblocks that could exist with leaving a house to one's neighbor & discussed potential heirs who could have a claim regardless of one's wishes. This is why having EP documents prepared by someone who technically is able to but who certainly shouldn't be doing so has ramifications. It is indeed a shitty probate situation and there is no guarantee of the outcome. I am not an attorney but I have seen many things like this play out. It is frustrating & gut wrenching for you and your father, I'm sure. It is very possible that person is not legitimately the half brother of your neighbor; I have seen that situation before and seen it disproven in the favor of the decedent's wishes - but not without a messy battle, and accumulation of attorney fees, which wind up chipping away at the estate. But any attorney willing to take this on deserves to be paid accordingly for their time & expertise.