father passed 1999 elderly mom is wanting to pass all inherited property(her deceased husbands property he inherited prior to his passing) to one child and had now supposently disowned he other 62 year old daughter. This mom and her youngest daughter 57 years have together secretly opened a sucession and stated she only had one born daughter to her husband. excluded the oldest 62 year old daughter. she lied. now family members stating she disowned the oldest daughter
The mother cannot change the father's estate plan. She can only change her own. If she inherited all or a portion of her husband's property, she is free to do with it whatever she wishes. To claim that she had only one daughter is fraude. The eldest daughter should get involved. If the father passed away in 1999, the estate should have been closed by this time. I hope that the assets have not been distributed per the mother's lies....if they have, the eldest daughter has a claim against her mother.'
She should consult an attorney,.
As Ms. McMahon points out, its is important to know what the father's estate plan said. Did he have a will? Who were the beneficiaries? If your mom was his beneficiary, she is free to do what she wants with the assets that became hers. When you say secretly opened a succession - do you mean probate for your father? If she lied to the court, she could have real problems but you need to hire an attorney or at least somehow advise the court of the fraud in the proper manner.
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Family Law Attorney
First you can not secretly open a succession. It is all public record. To answer the question one needs to know if the father left a will. If he did the property should go according to the will. If not it goes to all his children with the community half going to the wife. If a judgment of possession has been rendered you need to have the succession re-opened and a new affidavit of death, domicile and heirship prepared and filed. Then the old judgment of possession should be annulled and a new judgment of possession filed. You need to see an attorney to do all this.
Every situation is different and you should consult your own attorney to go over all the particular facts in your case. The answer given is only intended to provide general guidance regarding rights and responsibilities.
Real Estate Attorney
Judging by the fact that you are out of Lafayette and used the term succession, I assume that the parties involved are in Louisiana. If so, the previous two answers are on point in that you have a number of issues involved here but I will try to help a little regarding Louisiana specific matters. I'll address them in the order asked.
First, and it may be obvious, if elderly mom is of sound mind, she may will all "her" property however she pleases. Deceased father could have done the same. This assumes elderly mom has not committed any fraud and has no "forced heirs" under LA law. (FH = child under 24 yrs, infirm child that elderly mom cares for, among other possibilities)
Second, assuming it would be important to know if deceased husband left a will whereby elderly mom received all his property (or at least property at issue) as the sole and only heir. If he did not leave a valid will doing so, and he did in fact inherit the property, the property should or would likely be the separate property of deceased husband and NOT community (property that had been acquired as a part of the community property regime between elderly mom and deceased husband) and therefore would not have transferred to elderly mom in the succession of deceased father. You can see that the origination of the property as either separate or community is very important here because if you die without a will in LA, separate property does not fall to the surviving spouse but rather the biological or legally adopted children of the deceased. Even if there were no children, the property would revert back up the "ladder" to ascendants or collateral heirs and not the surviving spouse. It should take little in the way of an intervention in the succession to halt any fraudulent transfer from taking place. Moreover, if the succession were completed fraudulently, it would still be defective as to the unrecognized child and only part of the titled ownership of deceased father would have transferred to the 57 year old daughter. LA has what is called "seizen" meaning that upon the moment of death of deceased father, the legal heirs were seized of the property. That isn't exactly full ownership, which is why a succession is necessary, but it is not relinquished by merely not taking part in a succession. A general way of looking at it would be to say that deceased father's interest in the property was split 50/50 upon the moment of his death. The estate of deceased father continued to own the property in deceased father's place but seizen took affect as to each daughter. Consequently, any succession not including one of the daughters would effectively only transfer 50% of the ownership of the property from the estate out to a child and the remaining 50% is still in limbo.
Third, elderly mom cannot "disown" a child on behalf of the deceased husband/father. There are statutes that address disinheriting a child in the state of LA but there is no info given here to assume that a court has properly granted judgment of that. They are pretty high standards such as a child murdering a parent, starving a parent, etc.
BOTTOM LINE = SPEAK TO GOOD SUCCESSION LAWYER IN YOUR AREA. THE SOONER YOU DO, THE BETTER. Some attorneys do not run abstracts of title on property they are performing successions on. They basically rely on the truthfulness of the family/heirs/legatees. Who knows what else is going on.
DISCLAIMER: NOTHING CONTAINED HEREIN CREATES AN ATTORNEY CLIENT RELATIONSHIP BETWEEN JEFF A. LESAICHERRE AND ANY OTHER PARTY HERETO. ALL PARTIES INVOLVED SHOULD IMMEDIATELY CONSULT WITH AN ATTORNEY AS SOME CLAIMS CAN BE LOST OVER A PERIOD OF TIME UNDER LOUISIANA LAW.