Elder Law for June 15, 2020
Dear Len and Rosie,
My uncle passed away five years ago. Since he was estranged from the family at the time of his death, we were not notified, and were unable to collect his personal belongings. A person he met not too long before his death took over and she was supposedly named in my uncle's will or revocable trust. My daughter was named to receive her uncle's doll collection but we never received a copy of the will.
The home is still titled in my uncle's name today. I even called my uncle's number and his "friend" answered. She said she didn't know when my uncle would be home, even though he died five years ago. Is there a way to find out where the will is or if there is one? If there is no will, can my mother, his closest living relative, petition the court for possession of the home?
It sure looks like something fishy is going on here. There's a small possibility that there's a will or trust that leaves everything to your uncle's friend, but if there was, the property should have been probated already. And if there was a probate, then notice was supposed to have been given to your uncle's parents, if alive, or his brothers and sisters or their living descendants. You can check with the Superior Court in the county where your uncle resided on his death to see if any probate was opened, but chances are that never happened.
What's more likely to be the case here is that this "friend" has been squatting in your uncle's home for five years and there may not be a will or trust at all. So what your family should do is to hire a lawyer, and petition the court to administer your uncle's estate in probate. Because there is no will, at least that you know of, your uncle's estate will be distributed by intestate succession - either to his parents, or brothers and sisters and their living descendants, depending on who was alive at the time of your brother's death.
If you do this, you'll get appointed by the court as the administrator of your uncle's estate. Then, you can send notice terminating this woman's tenancy and follow through with an eviction when she refuses to leave. This is where it can get sticky. You may have a difficult time getting her out of the home because she could claim she owns the property by adverse possession.
Under adverse possession, if she has openly and notoriously held possession of your uncle's home for at least five years, and if she has paid the property tax during that time, she may be able to establish ownership of your uncle's home. So do not delay. Get a lawyer ASAP and file for probate, because if more than five years has passed since your uncle's death, it may be too late.
The lesson here is simple. If a family member dies and something doesn't pass the smell test, don't sit on your hands wondering what's going on. It's better to take legal action sooner rather than later. Even if you win and your family gets to inherit your uncle's home, we're willing to bet that those dolls you want for your daughter are long gone.
Len and Rosie
Dear Len & Rosie,
My mother died one week ago. She has a trust. I am the trustee. My 33-year-old nephew (her grandson) has lived with my mother from the time he was 18. In the last few years he has gotten into drugs. Two weeks before my mother died, my nephew took her to several banks, and coerced her into giving him $2,950.
We did an intervention on him. He was told to go to treatment or go to jail. He said he would enter a drug rehab program but of course he didn't do it. I changed the locks on mother's home, but a police officer said I have to let him back in because he gets his mail there. He lived with my mother for 15 years and never paid her a dime. Please help.
You probably shouldn't have threatened your nephew with jail time if he didn't behave. It smells of extortion. What you should have done was to have called Adult Protective Services. They could have put real pressure on your nephew and if he went into rehab, or a jail cell, you wouldn't have this problem right now.
We respectfully disagree with the police officer you spoke to. Your nephew isn't a tenant. There's no lease. He was a guest. Your mother could have tossed him out onto the sidewalk at any time. The police wouldn't help her do it without a court order, but your nephew has no legal right to occupy your mother's home. You can kick him out anytime you want.
On the other hand, throwing someone out onto the street is fairly harsh, although it's probably justified under the circumstances due to your nephew's behavior. Most of the time, we advise our clients to give such squatters 60 days notice to terminate their "tenancy," if only to be nice about it.
If your nephew is no longer there, don't let him back in. Change the locks. Make arrangements for his stuff to be delivered somewhere. The police can't arrest you for not letting him back into the home. It's a civil matter. Just understand that if he manages to get it together, he may try to sue you for an illegal eviction, pretending that he's a tenant instead of a leach. Maybe he'll even concoct an argument that he's entitled to compensation for taking care of his grandmother for 15 years. It wouldn't be the first time we've seen this happen.
He may even manage to break into the home and reestablish his residency. We've seen children of clients cocoon themselves inside the family home, claiming they have an inalienable right to stay there. Somehow, these children never turn into butterflies and fly away. If he still resides in the home, because you let him back in or he snuck in behind your back, you have two options. Either give him notice and file an unlawful detainer action, or pay him off.
Pay off the man who stole from your mother? If he's willing to go away for the cost of a security deposit and first month's rent, you'll spend less money on him than it may cost you to evict him, not taking into account the damage he could cause to your mother's home if he is left to his own devices pending an eviction.
You need a lawyer. Not only for trust administration, but to deal with your nephew. When everything works out well, trust administration, and even probate, is a more or less mechanical process. That all goes out the window when there's a dispute. It will likely cost you more in lawyer fees than an ordinary trust administration, but don't blame the lawyer. Blame your nephew.
Len & Rosie
Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.