I recently discovered that the estate has no equity due to a lien exceeding the value of the estate (other debts). Financially I would not be able to take on the expenses associated with having the property that makes up the estate put in my name even if I try to sell (maintenance fees, insurance, extensive repairs, ect).
My legal representative has informed me that his office would actions would be file against me, and drop me as a client if I did not allow the probate process to be completed, (My legal representative is instant that his office sells the property for me).
I understand only that I will need to appear in court to explain myself. What actions might the court take against me? Will and or how will I be penalized?
Elder Law Attorney
In order to be relieved of obligations, you must obtain a court release, which probably would require you to file an accounting for the time you served. It will be difficult to represent yourself on this because it is very technical. You should obtain new counsel if you have issues with your current lawyer.
Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax and SpecialNeedsNJ.com/blog for timely updates. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.
Elder Law Attorney
It is not uncommon to start a probate and then find out it is insolvent. PRs often resign in such circumstances. There are hoops you have to jump through to do it though because the courts want to know how it was left, for example where are the assets, what has happended to them and an accounting. I am surprised that your attorney does not agree to help you resign. You cannot force someone to be a PR but once you have been appointed, you cannot just walk away without making sure you tell the court what the status is and get a court order that discharges you.
I wonder if it is because your present attorney does not think he will be paid unless the property is sold. if there is any equity in it after sale, they become a preferred creditor with a priority to get paid before general creditors usually.
At a minimum, you need a second opinion from counsel to see what the best course to take is since your present attorney is not going to cooperate with you. Resigning as PR will reuire legal assitance. I know that is not what you want to hear but I can't see an alternative. Is somoen willing to take over thr role?
Maybe if you tell your present attorney you need a letter explaining why you should finish an insolvent probate so you can address it with another attorney (second opinion), they will become more accomodating to your desires. Maybe have the new attorney help with the language.
We really aren't supposed to answer questions for someone who is already represented.
Legal disclaimer: This answer does not constitute legal advice. I am admitted to practice law in the State of Missouri only, and make no attempt to opine on matters of law that are not relevant to Missouri. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship. less