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Estate had been in probate for 5 years. Can property be foreclosed on if you didn't know the money was owed? Can it be stopped?

New Holland, OH |
Filed under: Probate Probate assets

Former fiduciaries testified in Common Pleas court they took over the mortgage that they took out using a POA 9 months before my father died. The bank is now foreclosing on us even though we didn't know the debt was still owed and we are still in probate. Estate attorney won't speak to heirs due to conflict of interest. Former fiduciaries depleted estate of cash and rented farm land from the estate out for the past 5 years but kept the money instead of putting it in estate. The money from the rent would have paid the mortgage off. Estate attorney has let all this happen and done nothing to stop them.

Attorney Answers 3

  1. Yes, a house can be foreclosed upon while it is in probate and, yes, the foreclosure can be stopped (typically by working out payment arrangements with the bank). As you have no doubt determined, this is a huge mess. Only an experienced probate/real estate attorney can assist you in reviewing this matter and protecting your interests in the estate. Please retain one as soon as possible. Good luck to you.

    This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.

  2. As stated above this sounds like an absolute mess. If you are a potential beneficiary I would hire an attorney as soon as possible to protect your interests. Foreclosure can be forced by the bank to protect their interests. However, you would need to contact the bank directly to work out any payment plan to possibly stop the process. But remember, the bank does not have to work out a payment plan with you, they can continue to foreclose. The bank is looking for one thing, to get paid on the loan, if a payment plan is easier and more beneficial than foreclosure, then that is what the bank will do. Additionally, it seems as if there may have been some questionable managing of assets by the former fiduciaries. Your hired attorney should be able to question some of these transactions (if any type of fraud is thought to have occurred) by the fiduciaries. Best of luck.

    My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained. Please click "helpful" or "best answer" if my answer added any value or add a "comment" if you have more info for me to help you get a better answer.

  3. The only way to understand your options is for the prejudiced beneficiaries to join together and engage an expert probate attorney (one who is willing to handle a contested matter ... many do not). It sounds as though the fiduciaries may have behaved improperly, but situations like this turn on what actually happened--which may be a bit foggy--but primarily on what you can PROVE happened that was self-serving to the fiduciaries and prejudicial to the others. Good luck.

    Mr. Huddleston is an Ohio-Certified Specialist in Estate Planning, Trust & Probate Law, with offices in Columbus and Dayton, serving client families and private business owners throughout Ohio. He may be contacted directly by phone toll-free at 888.488.7878 or by email CLH@HUDDLAW.COM. Mr. Huddleston responds to Avvo questions as a public service to help educate and provide general guidance to questioners, but his responses are not legal advice and do not create an attorney-client relationship.

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