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Temporary Administrator in Georgia Probate Estate case - need heir to give over assets of Estate - How compel them via court ?

Augusta, GA |

Power of Temp Admin to Collect and Preserve Exist, however Heir does not want to allow - How do I compel them or enforce this with the Court or Judge ? We sent Certified Letter with Orders stating access to Assets they refuse, the house and entire contents belong to estate, do we get the Sheriff to go with the Orders with us, or the Baliff from the Court by the Judges Enforcement order ? What to do with Stubborn Heir and Temp Admn. Orders already given to make that happen ?

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Attorney answers 3

Posted

You need to file to obtain an order from the court. Then you need to obtain the order from the court and the sherreff can accompany you to enforce the order.

The process is more complex, however, and your local rules may have significant impacts on the procedures for carrying this out. Your time would be better spent paying an attorney - but if you demand doing it yourself then make sure you read up on your local rules.

Matthew Johnson phone# 206.747.0313 is licensed in the State of Washington and performs bankruptcy, short sale negotiations, and estate planning in Whatcom, Skagit, Snohomish, King and Pierce counties. The response does not constitute specific legal advice, which would require a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter; rather, it is intended to be general legal information based on the limited information provided by the inquirer; it This response also does not constitute the establishment of an attorney-client relationship, which can only be established after a conflict of interest evaluation is completed, your case is accepted, and a fee agreement is signed. Johnson Legal Group, PLLC

Asker

Posted

I have an Order from the court it states the following: I do, therefore, hereby appoint as Temporary Administrator(s) of the estate of the said decedent, for the sole purpose of collecting and preserving the assets of the said decedent until permanent letters are issued; and thereupon to deliver up such assets to whomsoever this Court shall commit the administration of the estate of said decedent, as provided by law. Temporary administrators are authorized to carry out existing contracts of the decedent, to carry on the business of the decedent, and to do such acts as are necessary for the protection and preservation of the estate provided proper orders are secured from the probate court after due notice to all parties in interest.

Posted

The fact that your post is almost impossible to ascertain tells me that while every pro se litigant in probate court nees a lawyer, you especially need one, partly because you have a contested matter and partly because if the lawyers here are unsure of what you posted, you will do badly in front of a judge if he also can't figure out your issue. Get a lawyer and do it YESTERDAY! It matters.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you (and am not your lawyer). Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). I am happy to discuss possible representation with you. Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

Asker

Posted

They don't give us enough space to explain in detail. Only get a couple hundred characters that's not my fault. I didn't invent this site. I'm a Senior Computer Consultant for 20 years. Allowing only a couple hundred characters to describe a legal issue is ludicrous so be patient with their technology, (not mine). Simply Stated. I have in the Lovely and Wonderful Southern State of Georgia. My Father died and the widow did not post a will with the court clerk yet. We wanted to see one we have not been given a legal will. However we were given a will which in the Lovely State of Georgia does not meet the basic criteria of a will. I can get into that matter but I need more characters )) Lol)). We filed with a Lovely Georgia Attorney PetitionTemporary Administrator Orders with Columbia County Probate Court. The result is to Preserve and Collect the assets. We are being refused by the Widow heir access to those assets. What INSTRUMENT can be used to COMPEL or Force the Enforcement of those orders ? Hope you saw it that time!!

Posted

Having read your added comments that Mr. Ashman did not have the benefit of seeing before he responded, I need to ask you: Are there any probate assets? If all of the property was jointly owned by your father and his wife, or if she was named as beneficiary, then the presence or absence of a Will is completely irrelevant. You only have a right to enforce your order if there is an estate subject to it. You need to check with the public records to see how the house is titled. If you find that the title is in their name as husband and wife, or as joint tenants with rights of survivorship, then you have no rights to the house. The contents *may* be another matter, but you would need to prove your claim to them.

You would benefit a great deal from the assistance of an attorney.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

Asker

Posted

My Dad purchased and owned everything in his name including the house. The house was originally titled in his name alone. Then he took a reverse mortgage and the house was titled to a trust of which he is 1st and she is 2nd trustee. Yes he had alot of items which were his way before they even met and then the other items which were purchased when they were together he purchased with his money. I had an attorney and he wanted more money to continue and I didn't see where his services were accurate. It's funny that everyone thinks I haven't been represented by an attorney but you know there are good and bad attorney's just like good and bad car mechanics. I asked him all these questions, he never gave me a straight forward answer on it. He made me believe in the state of Georgia all of the Assets are entitled to the Estate since my Dad purchased all of them in his name. The House and all is in a phony trust that is not good. It say's irrevocable trust on the trust documents and not grantor, you cannot be the beneficiary of an irrevocable trust as a trustee. There is alot to dispute and as heirs we have the right to dispute it all in court. Also in the state of Georgia if there is a will it needs to be filed with the clerk or it's a misdemeaner offense. It also needs to be determined it'a a legal will because what we say it doesn't meet the criteria of a legal will in the state of Georgia.

Loraine M. DiSalvo

Loraine M. DiSalvo

Posted

Actually, you CAN be both a beneficiary and a trustee of an irrevocable trust, and unless someone trying to answer your question on this site has seen the trust we have no reason to think it isn't good. If a trust is actually the owner of the assets then neither the Temporary Administrator nor the probate court has any jurisdiction or power over the trust-owned assets. It does sound like you didn't get good advice. That's not a reason not to get a better lawyer. If you want to try to challenge the trust and the transfers made into it, you go to Superior Court, not probate court. It's not as easy as challenging the Will. Temporary Administrator has power only over assets which became part of your father's probate estate at his death, not assets which he had transferred to a trust before his death. You've got a big mess on your hands. Try to find a much better attorney and get some better advice, and best of luck to you.

Asker

Posted

Yes your on track, we would challenge the trust only because we know the trust creator was indicted by the department of Justice for creating scham trust and he fled the country never to be found. As Temporary Administrator the trust was created by my father and this man who was indicted (not like my Dad knew it was a scham at the time), and I should be able to get that as part of the Estate and find out. My Current issue is getting Access to the property or assets that Are part of the Estate. We won't make an all out effort for all the assets now until the judge assigns us a Permanent Administrator. We have a mess now because we are trying to see if the Orders carry any bite meaning that the State of Georgia Probate Judge in Columbia County has issued orders to Collect and Preserve those asset which are in the possession of the heir who is not cooperating, how do we get the law to act on this to enforce the order. More law procedures in court, a hearing, a Baliff, a Sheriff ? What all you lawyer genious out there can tell me on this ?

Asker

Posted

This is a mulitple choice answer for all you law students. Please consider an answer based on Actual law and not opinion ?))

Loraine M. DiSalvo

Loraine M. DiSalvo

Posted

No Administrator, temporary or permanent, will be able to collect assets which are owned by a trust. This isn't an opinion. It is the law. If the house was transferred to a trust, very likely so were other assets, including your father's personal property. In that case, if his wife was listed as a trustee, she is under no legal obligation whatsoever to turn over trust assets to any Administrator of your father's estate. That's what you are facing here, based on the information you've put in your answers. You can't enforce your probate court order unless you can address the issue of whether assets are held by a trust.

Asker

Posted

Let's talk about the Trust since seem to have an Iron Curtain on trusts. A grantor Trust is a trust created by the asset owner and is controlled by Settler / Creator / Grantor, anyway this trust was not a grantor trust. The trust was created by Royce McCarley, http://www.justice.gov/tax/usaopress/2003/txdv03mccarley_ind_pr.html please feel free to look at the link here cut and paste it in your browser , or look up that name on the Internet, what you'll find is he was the Settlor / Creator / Grantor for a Trust Irrevocable. Royce McCarley was indicted by the DOJ for Creating Scham Trusts. This Trust was created by him. Next point. You cannot as a Trustee, transfer your own assets into an Irrevocable trust which you yourself are not the the Settlor / Creator / Grantor. In this case he was and as a trustee you must maintain the beneficiary's. In this case he made the Beneficiary another Trust and passed K1 Distributions to the other trust to an offshore trust and out of the Jurisdiction of the IRS. So this was not a Trust for My father to put his assets into, hahaha) in fact according to the IRS's definition of an Irrevocable trust that's illegal to do but he was told it was ok and he did it. All that needs to happen here is to go to court and explain it to the judge. That being said. The Trustee cannot control their own property or it's considered a Grantor Trust, this trust was defined as Trust Irrevocable. It's being operated incorrectly and used incorrectly and started by someone who is a known felon for creating Scham trusts. You can look at this case as well: U.S. v. MCCARLEY, No. Criminal No. 3:03-CR-064-D (N.D.Tex. 07/11/2003) 5 UNITED STATES OF AMERICA, PLAINTIFF, VS. ROYCE COLEMAN MCCARLEY, DEFENDANT. He lost the case because he defended himself and he walked out of court and left forever. They never found him either. Anyway the trust I'm speaking of was created by him and is illegal. Let's say it was illegal and the judge agreed. The assets would become part of the estate and then the right of survivorship in Georgia would allow what ? Here is a quote from you 2 years back : Therefore, the general rules in Georgia would mean that a joint bank account transfers automatically at one owner's death unless specifically stated otherwise, but jointly owned real estate does not transfer automatically unless the deed states specifically that it does. ? Any new changes ?

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