Single Heirs distribution withheld

[Richard Wisconsin]

Jurisdiction

Wisconsin

The Circuit Court required the heir to give up his statutory right to appeal in order to receive his distribution. Additionally, the estate argues that because he appealed, his distribution should be used to pay legal fees of the estate as it remains undistributed. Wisconsin law allows attorneys fees out of the whole of the estate, but not from a subsidiary such as a distribution.
Can the Court order an heir to waive the right to appeal in order to take their distribution?

 

[adjusterjack]

It should be obvious that the court CAN do it if the court DID do it.

Judges have a great deal of power to order people to do things.

Does the heir have his own lawyer, one that he hires and pays.

 

[zddoodah]

As phrased, the answer to your question is yes. However, since we know nothing about the case, which apparently has been appealed, it will be impossible to provide any useful feedback to you.

Why don't you start by telling us what your relationship to the deceased person was and whether or not you're the heir you appealed.

 

[Tax Counsel]

Can the Court order an heir to waive the right to appeal in order to take their distribution?

I'm guessing that there is a lot more to this than you've provided here. Very generally, in some circumstances the judge may do that. But I have no idea whether whatever situations the state of probate would allow for it in your particular circumstance, if you are the beneficiary involved in the appeal.

 

[Richard Wisconsin]

It should be obvious that the court CAN do it if the court DID do it.

Judges have a great deal of power to order people to do things.

Does the heir have his own lawyer, one that he hires and pays.

Not helpful.... Just because a Court does something doesn't mean that it Can do it... Perhaps my point is better made by asking if the Court "may" lawfully do it, and the heir has had lawyers over the 13 years of litigation in this matter. They have not been much help, however they do have the billing process down well. lol

 

[Zigner]

Not helpful.... Just because a Court does something doesn't mean that it Can do it... Perhaps my point is better made by asking if the Court "may" lawfully do it, and the heir has had lawyers over the 13 years of litigation in this matter. They have not been much help, however they do have the billing process down well. lol

It's not wise to be rude to the members who are trying to help. With that said, I have to ask:
Do you really expect a group of random internet strangers to be able to provide any useful help in a matter that is so complex that has gone on for "13 years of litigation" based solely on your 65 words of information?

 

[Richard Wisconsin]

As phrased, the answer to your question is yes. However, since we know nothing about the case, which apparently has been appealed, it will be impossible to provide any useful feedback to you.

Why don't you start by telling us what your relationship to the deceased person was and whether or not you're the heir you appealed.

Helpful...
I am the heir that appealed. Son of deceased mother.. 8 siblings. Case has been going on in some incantation since 2010. Started off as Guardianship case and morphed into allegations of financial abuse, proven to be false. Has been over 10-15 appeals. Numerous bad rulings by judges perpetuate situation.
They actually dismissed an appeal for failure to file a brief which was not yet due. They still will not address that complaint although it serves as the basis for the final judgment.

Not understanding your basis for how the Court can order waiver of an appeal in order to accept lawful distribution. The distribution is just one issue on appeal and the Court and estate seem to argue the withholding of the distribution of this heir's distribution is for potential attorney's fees. I find no legal basis for such a move and the estate has failed to provide legal basis in its briefing.
I would like to understand your rationale for how a Court can require waiver of a statutory right to appeal a final decision. Thank you

 

[Richard Wisconsin]

It's not wise to be rude to the members who are trying to help. With that said, I have to ask:
Do you really expect a group of random internet strangers to be able to provide any useful help in a matter that is so complex that has gone on for "13 years of litigation" based solely on your 65 words of information?

Sorry, was not intended to be rude. And yes, I would hope for "useful" information. The basis of my question was simply Does a Court have the authority to withhold a lawful distribution to an heir by mandating the heir waive their statutory right to appeal that decision? I can find no legal basis for such an order or decision.

 

[Richard Wisconsin]

I'm guessing that there is a lot more to this than you've provided here. Very generally, in some circumstances the judge may do that. But I have no idea whether whatever situations the state of probate would allow for it in your particular circumstance, if you are the beneficiary involved in the appeal.

You would be right in your assessment that there is more than provided. However, if you could provide me with some "circumstances" by which a judge can order an heir to waive their statutory right to appeal in order to receive their lawfully adjudicated distribution, that would be appreciated. Thank you.

 

[Richard Wisconsin]

It should be obvious that the court CAN do it if the court DID do it.

Judges have a great deal of power to order people to do things.

Does the heir have his own lawyer, one that he hires and pays.

Heir has had lawyer(s). This has not produced results that help in litigation. They generally seem confused by the orders of the Court but don't know where to go from there. Thanks for the question...

 

[Tax Counsel]

You would be right in your assessment that there is more than provided. However, if you could provide me with some "circumstances" by which a judge can order an heir to waive their statutory right to appeal in order to receive their lawfully adjudicated distribution, that would be appreciated. Thank you.

It'll vary a bit by state and I'm not in your state. But by far the most common reason is that you want to be paid now rather than waiting for the time for the appeal to go through. If the judge is inclined to grant that request, he or she will want that to be the end of the matter. What they don't want is for you to get paid and then go ahead and appeal anyway. You have the right to appeal, but if you do, the court will not order a judgment in your favor until the appeal is done. In that case the ball is in your court: you either take the money now and give up going to appeal, or you appeal and wait for that outcome before getting that money in your pocket.

 

[Richard Wisconsin]

It'll vary a bit by state and I'm not in your state. But by far the most common reason is that you want to be paid now rather than waiting for the time for the appeal to go through. If the judge is inclined to grant that request, he or she will want that to be the end of the matter. What they don't want is for you to get paid and then go ahead and appeal anyway. You have the right to appeal, but if you do, the court will not order a judgment in your favor until the appeal is done. In that case the ball is in your court: you either take the money now and give up going to appeal, or you appeal and wait for that outcome before getting that money in your pocket.

Thanks, that was likely the most clear answer I got in 13 years. lol

Just to clarify. The Judge ordered and made distributions to all other heirs who waived their right to appeal. The waiver constituted waiver of the right to appeal all matters both monetary and non-monetary.
The appeal covers jurisdictional issues, bias issues, lack of impartiality issues on a level that most would not be able to comprehend. The reason the Judge distributed the shares was not that I wanted the money, but that he knew I was going to appeal his decision on numerous grounds.

Therefore, he gave all other heirs their distribution, but withheld mine, apparently to pay to estate lawyers who had just distributed the entire estate including any funds available to pay themselves. In fact, the estate lawyer and the Circuit Court judge colluded on this "plan" to distribute money to all the heirs while "withholding my sums" assuming further litigation. The judge even told the estate lawyer that if I appealed, they should file a motion for frivolous costs and indicated they would prevail.
The COA then dismissed an appeal for my failure to file a brief which was not yet due. They will not address that issue, because it works to my benefit.
Thanks, your answer was beneficial.

 

[zddoodah]

Not understanding your basis for how the Court can order waiver of an appeal in order to accept lawful distribution.

Presumably your real question was whether, under the particular circumstances of your case, it was legally proper for the judge to require this waiver.

The answer to that question is that I haven't the slightest idea. Nor will anyone here have the slightest idea. Why? Because none of the people who post here are (to the best of my knowledge) attorneys admitted in Wisconsin (much less Wisconsin attorneys who specialize in probate law), and because none of us have any more than scant information about a case that "has been going on in some incantation since 2010."

To add to what "Tax_Counsel" wrote (which, to be clear, is only an educated guess), the estate needs money to fund litigation. If the final distribution occurs, then the estate will have no money. If you win, what happens? Someone's going to have to try and recover all the distributions that have made (to you and your 8 siblings)? What if none of them have the money anymore? It's not like the court is going to let you have your money but not any of the others.

 

[Richard Wisconsin]

Presumably your real question was whether, under the particular circumstances of your case, it was legally proper for the judge to require this waiver.

The answer to that question is that I haven't the slightest idea. Nor will anyone here have the slightest idea. Why? Because none of the people who post here are (to the best of my knowledge) attorneys admitted in Wisconsin (much less Wisconsin attorneys who specialize in probate law), and because none of us have any more than scant information about a case that "has been going on in some incantation since 2010."

To add to what "Tax_Counsel" wrote (which, to be clear, is only an educated guess), the estate needs money to fund litigation. If the final distribution occurs, then the estate will have no money. If you win, what happens? Someone's going to have to try and recover all the distributions that have made (to you and your 8 siblings)? What if none of them have the money anymore? It's not like the court is going to let you have your money but not any of the others.

Thanks, this is another good answer that helps me in my pursuit of justice. First, although I am new to this sight, I trust there are likely people here, like yourself, who have good instincts and opinions. I hope perhaps someone who is familiar with Wisconsin Law or other similar state laws may happen up this thread and be able to provide an insight as did you.

I believe you are 100% correct whereas you identified the problem the estate and its lawyers now have as well as one of their arguments.
The estate distributed all the assets of the estate to the other heirs, but mine was withheld because I would not waive my rights to appeal non-monetary matters or the final judgment itself. Again, this is for historical reasons in the matter that are irrelevant to my instant point.

The estate now argues, as you suggest, that the Court must rule that my share of the estate can be used to pay their fees whereas that is the only money that remains undistributed. The estate reasons that if my distribution is not available, they will have to "claw back" the others shares to pay their fees. They note that at that point, I will again be able to litigate the matter because I am an heir to the estate.

However, Wisconsin law does not permit attorneys fees from a subset of the estate, (a distributive share) but rather only from the whole of the estate.

The purpose of the "bias" Judge, who colluded with the estate attorney, (as a matter of and in the record) was to make distributions to the other heirs while withholding "my sums" because an appeal from "Richard" from such an order would be inevitable.So see, you are correct.

So if the Judge knowingly withheld my share for purposes of attorney's fees to the estate, should I appeal, I would likely need to appeal to get my lawful distribution and preserve my right to appeal.

The distribution has already been adjudicated to be mine. The estate distributed all assets which included any fund set aside for legal fees. Questionably not a very good move on the part of the estate attorneys, the personal representative or the Court.
Incidentally, the estate attorney submitted an ex parte Order to the Court which the Court adopted prior to my input or awareness of the proposed order.

Yup, I go back to my original but clarified query. Can a judge, make a final order, that distributes all the shares and "funds" of the estate available for legal fees, and then hold the share of one of the distributees for legal fees to the opposing party. It seems bias laden and lacks impartiality on its face and produces cause for a non-frivolous appeal...or so I would think.

You asked, "What if none of them have the money anymore? It's not like the court is going to let you have your money but not any of the others."

Clearly if the Judge distributed the shares to the other heirs, they already have their shares. What they did with such funds is a concern of theirs should an attempt at "clawback" occur. Historically, the obvious intention of the Judge was to provide them their shares, prevent my appeal by coercing me to take my share thus waiving my statutory right to appeal, and should I appeal, use my share as compensation for the estate attorneys as was suggested in the collusion discussion at the final hearing....well, the first of the final hearings...lol.

Thanks again for your perspective.

 

[Richard Wisconsin]

Thanks, this is another good answer that helps me in my pursuit of justice. First, although I am new to this sight, I trust there are likely people here, like yourself, who have good instincts and opinions. I hope perhaps someone who is familiar with Wisconsin Law or other similar state laws may happen up this thread and be able to provide an insight as did you.

I believe you are 100% correct whereas you identified the problem the estate and its lawyers now have as well as one of their arguments.
The estate distributed all the assets of the estate to the other heirs, but mine was withheld because I would not waive my rights to appeal non-monetary matters or the final judgment itself. Again, this is for historical reasons in the matter that are irrelevant to my instant point.

The estate now argues, as you suggest, that the Court must rule that my share of the estate can be used to pay their fees whereas that is the only money that remains undistributed. The estate reasons that if my distribution is not available, they will have to "claw back" the others shares to pay their fees. They note that at that point, I will again be able to litigate the matter because I am an heir to the estate.

However, Wisconsin law does not permit attorneys fees from a subset of the estate, (a distributive share) but rather only from the whole of the estate.

The purpose of the "bias" Judge, who colluded with the estate attorney, (as a matter of and in the record) was to make distributions to the other heirs while withholding "my sums" because an appeal from "Richard" from such an order would be inevitable.So see, you are correct.

So if the Judge knowingly withheld my share for purposes of attorney's fees to the estate, should I appeal, I would likely need to appeal to get my lawful distribution and preserve my right to appeal.

The distribution has already been adjudicated to be mine. The estate distributed all assets which included any fund set aside for legal fees. Questionably not a very good move on the part of the estate attorneys, the personal representative or the Court.
Incidentally, the estate attorney submitted an ex parte Order to the Court which the Court adopted prior to my input or awareness of the proposed order.

Yup, I go back to my original but clarified query. Can a judge, make a final order, that distributes all the shares and "funds" of the estate available for legal fees, and then hold the share of one of the distributees for legal fees to the opposing party. It seems bias laden and lacks impartiality on its face and produces cause for a non-frivolous appeal...or so I would think.

You asked, "What if none of them have the money anymore? It's not like the court is going to let you have your money but not any of the others."

Clearly if the Judge distributed the shares to the other heirs, they already have their shares. What they did with such funds is a concern of theirs should an attempt at "clawback" occur. Historically, the obvious intention of the Judge was to provide them their shares, prevent my appeal by coercing me to take my share thus waiving my statutory right to appeal, and should I appeal, use my share as compensation for the estate attorneys as was suggested in the collusion discussion at the final hearing....well, the first of the final hearings...lol.

Thanks again for your perspective.

Hello again, I was under the impression that if I provided more information, someone would provide an even more clear perspective. Perhaps what I perceived to be a relatively simple inquiry is not so universally simple.

My understanding is that Judges are not unlimited in their judicial determinations and that discretionary decisions must be in accordance with statutory, common law and constitutional parameters.

In other words, although judges "can" do whatever they want, such action "may" not be permissible as a matter of law (or fact); thus, appellate actions follow.

I guess I don't know how else to pose my question. Perhaps as follows.

The Judge, in consultation with the estate attorney, devised a plan to distribute the remainder of the estate to all heirs, while "withholding" my shares to pay for the estates attorney's fees should I appeal.

The estate attorney submitted an ex parte proposed order to the court, (which put in writing the collusion discussion between the Judge and Estate Counsel at the first final hearing) and at the second final hearing the Judge never reference the order, nor made a reasoned decision on the record.

One day later, the Court issued the ex parte proposed order as its final determination, which provided distribution of the entire estate, including all funds reserved for potential attorney's fees, but required that I waive my statutory right to appeal, in order to receive my distribution. The order further provided that if I took my distribution, and then appealed, I would be mandated to pay the estate attorney's fees and costs if I did not prevail. (I DID NOT TAKE MY DISTRIBUTION!) lacking impartiality and biased.


So, what do I see? The Order was coercive, ex parte, did not end the entire matter under litigation, based upon collusion between the judge and the estate attorney. Predetermination of a matter in awarding fees and costs. Lack of impartiality and bias by the judge, etc..

It is difficult to find lawyers who want to challenge the integrity of the Judge and the COA although I don't see it as an integrity issue, it is clear that the Judge and COA does. I was under the impression that Court's simply followed the law and weighed the evidence and considered the facts. I am no longer that naive.

Question remains, Can the Judge, distribute the entire estate, withhold my sums upon agreement with the estate attorneys for their legal fees, and then find my appeal frivolous for appealing the withholding of my adjudicated shares, for purposes of paying the estate attorney's fees and costs for defending against my appeal where they withheld my shares predicated upon a collusion by the estate attorney and judge via discussion and an ex parte proposed order, to do exactly that?