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Are probate documents filed with the court available to family members? How can I find out what the executor told the court?

Canton, GA |

Mother dies with a will that states that all assets be divided equally between her adult children. One child is the executor. The executor tells the other siblings that the family home (the only significant asset) has a Medicaid lien and will be confiscated so there are no assets to distribute.

Will goes through probate without the other siblings seeing any documents or signing anything. After probate is completed, they find out that there was never a Medicaid lien and the house has been transferred into the name of the executor.

Can one of the siblings get the court records to see how the executor got through probate? To see if signatures were forged? If the sibling is poor and cannot afford a lawyer, is there any way to pursue this?

Attorney Answers 4

Posted

Not sure if the Medicaid lien info (if it exists) would be in the file in any case, but most of what you seek is publicly available in most probate courts. You can likely obtain the initial information on your own without a lawyer but to pursue a case against the executor you really should have a lawyer.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

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Posted

Probate Court files are generally open to the public, so you can access a copy of the filings. However, depending on how the will was drafted, the Probate Court file may not have all the information you are seeking. If the home had a lien, that is public record and can be verified in the real estate records of the County, as well as the facts of the transfer o the house. Your allegations are grave and if documented, would constitute a fraud. I strongly suggest you contact a lawyer who might be able to at least verify facts of the lien and the transfer of the realty pretty quickly and for little cost. Then if the public record supports what you report, you will need a trial lawyer to pursue this. Good luck and act fast.

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10 comments

Asker

Posted

When I looked through county records and verified that there was never a lien on the house, I accidentally found a copy of the deed transferring the house to the executor. The only way any of us knew that probate was even completed (or started!) was that the deed said that the property was transferred by the executor "acting under and by virtue of the power and authority to sell and convey property as conferred by the last will and testament of xxxxxxxxx, deceased, duly probated in the Probate Court of Cherokee County...." Thank you for your help. I will suggest that one of the siblings go to the probate court and request a copy of the filings. Is there a statute of limitation on pursuing this? The sibling is trying to get some legal aid but there is a long wait list. I am not one of the heirs, but I am trying to help out.

Dana P. Shaffner

Dana P. Shaffner

Posted

Statutes of Limitations are always a problem, as are legal doctrines such as laches, waiver and estoppel. It seems likely with the facts you relate that some lawyer would look at this from a contingent fee standpoint. Keep trying. In the short run, the beneficiaries who have been wrong may be able to pool their resources and come up with the fee to enable a lawyer to at least properly document these allegations. I know you said you've verified this at the Courthouse, but you need to be able to prove: 1) the misrepresentation which induced the beneficiaries/heirs to not question or pry, 2) the transfer to the exexutor (certified copy of the deed), and 3) the will itself (a certified copy of the will). If the Executor is found to have done these things, they may be liable for treble (x3) damages, plus the costs of the legal action.

Asker

Posted

This is very helpful, thank you. She just went to probate court and got a copy of the file. It is hard to understand the contents as she is describing them on the phone, but it seems the solemn form probate document has the heirs' names printed, but no signatures(?). Your items 2 and 3 are easy - she has those already. What would she need to prove the misrepresentation about the lien? The executor told a several people numerous times that there was a lien and that was why no assets were being distributed, but nothing was in writing. It sounded plausible, so no one questioned it. I just don't know how the probate court would allow this to happen - there was a legal will which was not in dispute, but the executor somehow ends up with the deed in her name. Thanks again for your help... I hope she can get a lawyer to at least look at all the documents.

Dana P. Shaffner

Dana P. Shaffner

Posted

Without seeing the documents you are speaking of, I can't hazard a guess. There is no way a person can be appointed executor without the heirs of the estate either being served or acknowledging service and consenting to the appointment of the executor. Have the probate been closed ? Is it still open ?

Dana P. Shaffner

Dana P. Shaffner

Posted

Sorry , your original question said the probate is closed. Then it sounds like you have ground for suing the former executor, or petitioning to have the estate re-opened. They do need a lawyer. They need help.

Asker

Posted

I called the probate court myself to request a copy of the court filings be sent to me so that I can see them myself (I am not local) and I learned a bit more. Probate is *NOT* closed yet. I also learned from another search of county records that the executor, on the same day that she transferred the house to her own name via an Executor's Deed, then transferred the house to another person (*not* one of the beneficiaries) via a Warranty Deed for a payment of $10. The person (beneficiary) that I have been trying to help is a senior, disabled, poor, and has no computer access. I do not know how successful she will be in finding a lawyer to help her when she has no money. She is distraught about this and feels helpless. I'm sure the executor feels she can get away with anything at this point and she probably will.

Dana P. Shaffner

Dana P. Shaffner

Posted

Have her contact this agency and see if they can help: http://aging.dhs.georgia.gov/elderly-legal-assistance-program I assume this is Cherokee County (the question posted referenced the city of Canton. If the above agency doesn't help, call more and more lawyers in Cherokee or Cobb County. There are other agencies that might assist her given her status. You could also try the local area law schools like Emory and Georgia State.

Asker

Posted

Thanks. I just called them and they said that they do not help with probate cases. She said she called Legal Aid some time back and was told that it would be 4 months before anyone could talk to her. I'm still trying to find someone local. We have not given up yet.

Asker

Posted

I just thought I'd come back and let you know that we were able to get some family members to loan her money to see a lawyer. A petition to have the executrix removed will be filed next week. The lawyer we saw thought this was one of the more egregious cases of breach of fiduciary duty he's seen. He also thinks there is a good chance the legal fees will be paid for out of the estate or by the executrix because our actions are "in the best interest of the estate." In your experience, is that likely?

Dana P. Shaffner

Dana P. Shaffner

Posted

Given the facts you have outlined, and if the consultative attorney said it was an egregious case, then I think it can be very likely the executrix may have fees imposed on her personally.

Posted

All you have to do to obtain a copy of the probate court file (assuming it was a Georgia probate court) is call the court and request a copy of the entire file. You will have to pay for it, and you may have to make the request either in person or in writing and include payment up front, but the court can give you the details and how much the cost will be. I agree with Ms. Shaffner, it does sound like there may have been a fraud, if your statements are all correct. I also agree that information about a Medicaid lien should show up in the real estate records for the county where the home was located. If a person believes he or she has been cheated out of a share of an estate, but does not feel he or she can afford an attorney, that person has several options: (1) try to find an attorney who will help on a contingency-fee type basis - this may be difficult for a probate matter but it may not be impossible; (2) try to see if there is any legal aid program or other free or very low cost help available - sometimes there is, and the court may be able to point you to some resources; or (3) try to do things himself or herself. Number 3 is the worst option.

This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.

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5 comments

Asker

Posted

Thank you for your response. I have included some follow-up in the comments following Ms. Shaffner's reply. I have suggested that perhaps she can find a attorney who would give her an initial consultation to at least scan the documents she now has from the court and give her some idea whether it is feasible to pursue it.

Loraine M. DiSalvo

Loraine M. DiSalvo

Posted

That is a good suggestion. I would like to point out two items of note in your comments to Ms. Shaffner - if the Petition filed was to Probate in Solemn Form and the heirs did not sign it, that should mean they received notice and then failed to object to the probate. If the Will was valid, that shouldn't be a problem, necessarily, unless there are fraudulent statements on the petition itself. As for the probate court allowing the executor to improperly handle the estate: the probate court is usually very limited in what it supervises. Most Wills created by attorneys will waive any requirement that the executor file inventories or periodic reports with the probate court, or that the executor post a bond. If the executor is an honest person, waiving these requirements usually saves time and money for the estate and its beneficiaries. Unfortunately, what that means is that, if the executor is NOT an honest person, as may have been the case here, the probate court really has no way to find out that things are being mishandled unless a beneficiary or other interested party brings something to the court's attention. Beneficiaries have to look out for themselves. In this case, if a beneficiary had looked into the lien issue or demanded to see proof of the lien, this might not have happened. I don't want to blame the victim, but unfortunately in many estates the beneficiaries do have to watch out for their own interests. The executor is not supposed to be dishonest, but it is wise for the beneficiaries not to be too trusting, either. I hope the siblings are able to get a good result.

Asker

Posted

That is discouraging for the legally unsophisticated, I must say. This sibling says she was not notified of the probate and was not asked to sign anything. But, even if she *had* received and signed the petition (not having any objection to terms of the will), how could she have known that somewhere along the way, the the property had been transferred to the executor - not in compliance with the will? She was told by the executor recently that it was still in probate due to the "lien" so she figured she just had to wait for the executor to either distribute the assets according to the will or for Medicaid to come and take the house and sell it. But after so long of nothing happening, that's when she started investigating the (nonexistent) lien and we stumbled across the information that probate was completed and the transfer of the property had been recorded last year. It seems frighteningly easy to steal property this way, especially if the beneficiaries are unaware of the process and have little or no resources.

Loraine M. DiSalvo

Loraine M. DiSalvo

Posted

You're correct; it does make it very easy for bad actors to get away with wrongdoing. Unfortunately, the trend is towards making it even easier - more and more ways for assets to avoid probate at all, for example, such as "payable on death" designations. Many times the stealing occurs before someone dies, when the bad actor gets added to joint accounts or beneficiary designations. If a person thinks he or she has an interest in an estate, the only way to protect yourself is to keep asking questions, and to keep pushing if you meet resistance. I tell my clients who are executors to be as open as possible, and I would not allow a client to steal from a trust or an estate. But unfortunately, a lot of people don't hire competent counsel when they are acting as executors, and end up doing the wrong thing because they believe they can, and others are just bad people who do bad things and don't care. This really is an area where there is not a lot of protection for the unwary.

Asker

Posted

I just thought I'd come back and let you know that we were able to get some family members to loan her money to see a lawyer. A petition to have the executrix removed will be filed next week. The lawyer we saw thought this was one of the more egregious cases of breach of fiduciary duty he's seen. He also thinks there is a good chance the legal fees will be paid for out of the estate or by the executrix because our actions are "in the best interest of the estate." In your experience, is that likely?

Posted

Copies of the entire file are available to anyone who walks into probate court (50 cents a page). Once you get the file, have a lawyer look it over for you.

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