Estate Fraud

[TomR]

Jurisdiction

Florida

Hello.

My uncle recently passed away in May, and he was declared mentally incompetent many years ago from an injury in the navy that required having a portion of his brain removed. He had to be cared for by family for the past 60 years. He was not married, had no kids, parent and siblings predeceased him. He always lived with family starting with his parents. When they died, they left everything to him so that he would be able to live in the house until he died. At that time the estate was suppose to go to probate.
I am the very next of kin(his sister is my mom). But prior to his passing, my nephew took him over at age 80 and had him sign POA papers and some other documents with an attorney that supposedly left everything to my nephew and his sister. These are my brothers adult kids who rarely speak to him. They have already had the house transferred with a quitclaim deed, but I don't think they have been able to transfer funds just yet from his bank account. There has been no probate started and no will submitted to the county clerk of courts. They had something written up to skirt around that, but even then, that should be illegal documents.

I have been told that fraud has been committed, but litigation would have to be done, and they want way too much money up front as a retainer fee. I can not afford this, but at the same time, due to receiving unemployment over the past year, I guess I don't qualify for free or low fee help either. My brother is an heir of course too, but he won't make any attempts to fight this.

My questions are: How long is too late to have probate started? have an attorney litigate this? to challenge the deed transfer? etc?

I know that my uncle died with well into six figures in his bank account. Is there a way to get the court to appoint someone the Administrator(even if it's an attorney), and then we can gain access to information of my uncle's bank account so that the attorney will know there are sufficient funds to pay their fees? This is the only thing preventing getting this started/done.

I just can't believe that people who are rightful heirs could be robbed through a scheme like this just because they can't afford to pay an attorney to litigate. I could have afforded to pay a small retainer fee to an attorney to do the simple probate, etc....but this litigation thing I just can't afford.

Any help? Suggestions? Could bringing this to a district attorney help any?

Thanks in advance,
TomR

 

[army judge]

Please accept my sincerest condolences upon the loss of your loved one.

How long is too late to have probate started?

Is it ever "too late" to start probate?

No, there is no deadline to open a probate in Florida. However, there is a practical limit in some family situations, because over enough time there may be several probate administrations needed due to the deaths of the initial heirs and even children of the heirs.

have an attorney litigate this?

When you speak with an attorney, he or she will answer this for you.
Most attorneys offer the first consultation at no cost.
You'll have between 30 to 60 minutes to ask questions and discuss your legal concerns.

to challenge the deed transfer?

Any help? Suggestions?

Settling an estate in Florida is much like in any other state. However, you should pay attention to deadlines and other requirements that may be specific to Florida.

1 First, someone must file the will and a petition to open probate in the circuit court in the county where the person lived prior to their death. In many cases, an attorney will be required, according to Florida Probate Rule 5.030.

2 The court will approve or appoint an executor for the estate and provide Letters of Administration. Beneficiaries and heirs must be notified of the probate proceedings.

3 The executor must take inventory of all assets and determine their worth. They must also file and pay taxes and any outstanding debts.

4 The executor must provide a final accounting to the court to prove their activities with the estate.

5 The executor distributes the assets and requests that probate be closed.


Now there MIGHT be an easier option you can oursue.

Florida offers a probate shortcut for "small estates." This makes it easier for survivors to transfer property left by a person who has died. You may be able to transfer a large amount of property using the following probate shortcut -- saving time, money, and hassle.

Florida has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate.

You can use the simplified small estate process in Florida if:

There is no real estate, and all property is exempt from creditors' claims except amounts needed to pay funeral and two months' last illness expenses. The court will authorize transfer of property to people entitled to it upon a simple letter or application to the court. Fla. Stat. Ann. § 735.301. Statutes & Constitution :View Statutes : Online Sunshine

or

The value of the entire estate subject to administration in Florida, less the value of property that is exempt from creditors' claims, doesn't exceed $75,000, OR the deceased person has been dead more than two years. A petition must be filed with the court. This process is called "Summary Administration." Fla. Stat. Ann. § § 735.201 and following. Statutes & Constitution :View Statutes : Online Sunshine

Summary administration is a shortened version of probate. To start this process, the executor nominated in the will or anyone who inherits property ("beneficiary" or "heir"), files a document called a Petition for Summary Administration. The surviving spouse, if any, must sign and verify the petition, along with all beneficiaries. If any beneficiary doesn't sign the petition, he or she must be formally served with notice that you have filed the petition (such as having a civil process server give the documents to the beneficiary or delivering it via certified mail).

In the petition, you state that the estate qualifies for summary administration, list the deceased person's assets and their value, and state who inherits which assets. You attach a copy of the will to the petition. You should also try to locate any creditors and serve them with a copy of the petition. If funds are available, creditor claims should be paid.

If the court determines the estate qualifies for summary administration, it can enter an immediate order allowing the property to be given to the people who inherit it. For example, you can take the order to a bank to show you are the rightful beneficiary of the account funds.

The beneficiary or personal representative has the option of publishing a notice to creditors in a newspaper published in the county where the petition is filed of this order and of the identities of the beneficiaries. If you file proof with the court that you published this notice, creditors only have three months to try to make a claim.

Reference materials:

The Executor's Guide

Estate Planning Basics

 

[army judge]

Here's how intestate succession works under Sections §732.101 to §732.111, Florida Statutes.

If you have a surviving spouse, your entire estate will pass to him or her (unless you have other living descendants that were descendants of your surviving spouse);
If you have no living spouse, your entire estate will pass to your surviving descendants (children);
If your living descendants are not the biological children of your spouse or your spouse has children who are not biologically related to you, your assets will be split between the spouse and the descendants;
If you have no living spouse or descendants, your entire estate will be split between your surviving parents;
If you have no surviving spouse, descendants, and parents, your assets will pass to your living siblings and/or their descendants;
If you have no living spouse, descendants, parents, siblings, and your siblings' direct descendants, your estate will be split between your remaining relatives (i.e., other collateral heirs).

 

[zddoodah]

How long is too late to have probate started?

I don't know that there is a "too late," but if there is, it will be measured in years, not months.

have an attorney litigate this? to challenge the deed transfer? etc?

If you want to challenge the legality of the documents that were created when your uncle was 80 and of the transfer of title of the house, you should act ASAP. The statute of limitations will be at least a year, and more likely two or more years. However, the longer you wait, the more difficult and expensive this is likely to be.

I know that my uncle died with well into six figures in his bank account.

You saw bank statements from shortly before he died? If not, how do you "know" this?

Is there a way to get the court to appoint someone the Administrator(even if it's an attorney), and then we can gain access to information of my uncle's bank account so that the attorney will know there are sufficient funds to pay their fees?

Yes, that's part of probate.

Could bringing this to a district attorney help any?

You can bring anything you like to the state's attorney (criminal prosecutors in Florida are state's attorneys, not district attorneys). Whether he or she will act on it is impossible to predict.

 

[TomR]

I don't know that there is a "too late," but if there is, it will be measured in years, not months.



If you want to challenge the legality of the documents that were created when your uncle was 80 and of the transfer of title of the house, you should act ASAP. The statute of limitations will be at least a year, and more likely two or more years. However, the longer you wait, the more difficult and expensive this is likely to be.



You saw bank statements from shortly before he died? If not, how do you "know" this?

I have lived in another state for the past 12 years, but unless they were cleaning him out before he died(which I doubt), he was getting 100% disability compensation of over $3,000 a month direct deposited into his account and he wasn't spending no more than $800-$1000 a month on bills and groceries. So for the past twenty years alone if he was putting back minimum $2000 a month, that equates to $450,000. And that is just the last twenty years alone. He never spent money on anything(other than a repair here and there), and the house was paid for back when my grandparent first bought it in the late seventies. It is now valued between $300,000-$460,000....probably somewhere in the middle.



Yes, that's part of probate.

Attorney's I have talked to said they can't do the probate until it's litigated(which I can't afford). I don't know why probate can't be started, and then once the court appoints a administrator it can proven there is sufficient funds available to pay for the litigation parts? I mean right now my uncles bank account is just sitting there in limbo. My nephew doesn't have the proper court documents to show the bank, and I can't afford to put up a $15,000 retainer fee. I talked to a branch manager, and although he could not disclose any information, he did pull up my uncles account and then he put my mind at ease by basically telling me without telling me that it hasn't been tampered with yet, and that they will not release funds, etc, without the proper paper work.



You can bring anything you like to the state's attorney (criminal prosecutors in Florida are state's attorneys, not district attorneys). Whether he or she will act on it is impossible to predict.

I was just thinking that if I have more time than a few months, etc, that I may be able to afford doing something eventually. But it would really be great if I could get probate opened/started now, and would just have to hold off on the litigation part for the time being. Like I said, there were assets(house, bank account, etc)...a probate should have been opened whether it's by the legal heirs or by my nephew who went over and got a POA and whatever illegal document that gave him the ability to transfer the deed into him and his sisters names.

Thanks for your time and advice.

 

[TomR]

View attachment 3327

Here's how intestate succession works under Sections §732.101 to §732.111, Florida Statutes.

If you have a surviving spouse, your entire estate will pass to him or her (unless you have other living descendants that were descendants of your surviving spouse);
If you have no living spouse, your entire estate will pass to your surviving descendants (children);
If your living descendants are not the biological children of your spouse or your spouse has children who are not biologically related to you, your assets will be split between the spouse and the descendants;
If you have no living spouse or descendants, your entire estate will be split between your surviving parents;
If you have no surviving spouse, descendants, and parents, your assets will pass to your living siblings and/or their descendants;
If you have no living spouse, descendants, parents, siblings, and your siblings' direct descendants, your estate will be split between your remaining relatives (i.e., other collateral heirs).

"If you have no surviving spouse, descendants, and parents, your assets will pass to your living siblings and/or their descendants;"

I would fall under this category(son of only deceased sibling). But since my nephew snuck over and had him sign some illegal documents prior to his passing, I am now faced with having to ante up a $15,000 retainer fee for litigation, which I do not have anywhere close too. I could have afforded a small retainer fee to get the normal probate process started, but not this. This appears to be how they manage to get over on the legal heirs.

 

[TomR]

I tried to reply to Army Judge first message but I kept getting error message, so I'll try here.

Long story short. Declared mentally incompetent 60 years ago and ever since. All assets outside his disability compensation was willed to him by my grandparents who were under the belief that he could not have a will made out and that the estate would pass onto their other heirs (daughter/grandchildren) after his death. It was suppose to just go to probate. All these years, nobody in the immediate family ever stooped to this fraud act until his great nephew just months before his death. And now because of it, they say a huge retainer fee needs to be paid for litigation. I suppose this is how some people skirt around the law and rightful heirs get robbed because I don't see myself being able to afford $15,000 anytime soon.

Thanks for your time and advice.

 

[army judge]

I suppose this is how some people skirt around the law and rightful heirs get robbed because I don't see myself being able to afford $15,000 anytime

Talk to local law enforcement, a detective that handles fraud.

See if any local media investigative reporters will help.

Report the abuse of your loved one to the state agency that serves senior citizens or the elderly.

Ask your elected officials for help.

Keep searching, help is out there.

You just need to find it.