It’s a legal term for someone who acts on behalf of someone who cannot act on their own in a legal proceeding ( such a child or a mentally incapacitated person) but who has not been appointed a legal guardian.
Whatever you do…DO NOT SPEND A NIGHT IN THIS HOUSE!!! :eek:
But I was going to bring all of my cheerleader friends and we were going to paint each other’s nails and talk about boys over there? What could possibly go wrong?
Well, if you do bring your cheerleader friends over, whatever you do. . . DON’T SPLIT UP!!! I can’t empasize that strongly enough.
If I had to take a wild guess—and that’s all this is, my guess—this might be what’s going on:
[ol]
[li]The house is in Illinois, thus the Illinois courts have in rem jurisdiction. That is, the court only has the power to adjudicate the ownership of the house. If jurisdiction is only in rem, the court cannot make you personally liable on a money judgment.[/li]
[li]Your grandmother died intestate, or, in any event, no will was probated. (So, incidentally, your uncle had no legal power to dispose of your grandmother’s property, and he is kind of in deep shit and could be legally liable to the heirs (intestate) or beneficiaries (if there is a will).)[/li]
But back to grandma dying without an as-yet probated will: GMAC, knowing of the death, is instituting the suit against the potential heirs. I say potential, because no probate proceeding has been instituted yet (so the heirs are as yet unidentified). Unfortunately, how the fuck does your uncle think legal title to a dead woman’s house is going to pass without probate? You can’t just show up at the County Clerk and say, “Oh, hey, my uncle told me I can have dead grandma’s house. Want to change over the recording for me?”
And moreover, your uncle is not the only person who can institute probate. Your mother can if your uncle is too much a useless schmuck to do it himself.
Or you. You don’t want to, I know, but now you’re being sued for $165 thousand. So maybe there are worse fates.
Finally, there is also a government official called the Public Administrator who handles the estates of those who have died and there is no one else to handle the estate.
[li] So, anyway, they’re suing you because GMAC doesn’t give a shit about your family dramz. This house is going to pass to someone, and GMAC needs its judgment against these parties to recoup the loan.[/li]
[li] You may recall I said above that the Illinois court likely has in rem jurisdiction and not personal jurisdiction. Some refinements on this:[/li]
The Illinois Long-Arm Statute gives the court personal jurisdiction over people outside Illinois who have certain contacts with Illinois (or, in other words, who have undertaken certain activities affecting stuff going on in Illinois) in lawsuits arising out of those contacts/activities. One of those things is owning real estate in Illinois. Does being a potential heir count as owning real estate in Illinois? I don’t know, but a lawyer you hire could find out.
Even if the Illinois courts do not now have personal jurisdiction over you, they can get it if you are not careful. It used to be that the only thing you could do challenge jurisdiction without thereby submitting to the court’s jurisdiction was to enter a “special appearance,” if you did anything else, you consented to personal jurisdiction. I believe now that the court has mollified this rule slightly, but filing an answer or a motion (other than an extension of time and a handful of other things) will submit you to the personal jurisdiction of the court.
[li] IT IS ESSENTIAL YOU RETAIN YOUR OWN, REAL-LIFE COUNSEL (and not rely on my advice or anyone else’s on this message board). You have (i) a foreclosure suit, for a house that you might have a financial interest in after distribution of the estate, with (ii) a technical, and potentially outcome-determinative, personal jurisdiction issue, and (iii) you may have to serve as a begrudging executrix if the rest of your family is unwilling or not competent to do so (or at least get the matter referred to the Public Administrator).[/li][/ol]
XOXO, HTH!
Thank you for all of that! The one question that’s in my mind (and I will speak to IRL lawyer about all this later in the week, but these are just musings now): what’s the benefit of me putting the stuff in probate? Theoretically, the assets could all be gone thanks to uncle, would he then be personally liable for that? Would I be? I guess I just don’t see the benefit at this point.
Like I said, this whole thread is sort of a babbling thought exercise, since the advice I take will be the IRL attorney advice. . . but hey, this whole thing is something I am completely not familiar with, so it’s nice to bat around ideas.
I think you and cousin were named in the suit because somewhere, (that uncle doesn’t want to acknowledge), it was declared, by rights yours. He stopped making the payments for whatever reason. That doesn’t mean there isn’t equity in the house.
Do you think that’s the case? It’s possible, but I just was operating under the assumption that they were suing everybody. For it’s worth, grandma has no surviving spouse, two children, and two grandchildren. So, GMAC is literally suing everyone.
I suppose if we were a normal family with a bunch of people, there’d be many more names on this lawsuit :D. But maybe you’re right that it isn’t the case.
Part of the purpose of probate is the orderly dispersal of assets, including those that cannot pass just by transferring possession. If I have title and I transfer a wristwatch into your possession and tell you it’s yours, it’s yours. There’s nothing more to do. Cars and houses are titled by the state, and so to transfer ownership, the state has to be involved. (There are non-probate ways to do this, JTWROS and living trusts, but that has to occur during the decedent’s lifetime.)
So, probate is needed to get rid of the house.
The other point of probate is to give the creditors of the decedent notice so that the estate can be applied to outstanding obligations. (Like a mortgage.)
Obviously, you don’t care about making GMAC’s life easier. But their alternative, if nobody in your family is seeing that somebody probates this estate, is to sue all of you to preserve its claim when the house does eventually pass to someone.
To avoid this, the estate should be probated. If the house was underwater, GMAC will take it (none of the heirs would be responsible for the difference if they weren’t in on the lifetime mortgage). If not, they’ll take their share and the equity will go (very probably) to your mom, uncle, and any of their siblings.
If, as I presume, nobody but your uncle saw any proceeds from this “estate sale,” then he is liable to his co-heirs for their shares. (Under unjust enrichment? Via a constructive trust? I don’t know, I tried researching this, but couldn’t find anything on point.) But, if this estate sale netted like $300, it probably is not worth a lawsuit. But if Grandma owned a Harry Winston diamond or a Joan Miro painting, then that is a different story.
Just to clarify, a legal guardian can be (and usually is) a next friend, just the mere fact of being a next friend does not make you a legal guardian.
Because your grandmother’s estate has liabilities, and these need to be resolved in a legal and orderly manner.
In the U.K., yes. It’s a very serious matter.
Perhaps, I don’t know, because HIRING A LAWYER COSTS MONEY and thus something you do when you’ve exhausted other options that don’t cost money? The fact that you think nothing about throwing money around rather than trying to figure out some other way doesn’t mean everyone else is rich enough to do so.
I mean, that was just someone saying that you tell them you’re going to hire a lawyer if they don’t hurry up and send the form. It’s an obvious precursor to actually hiring the lawyer. Characterizing it as “theatrics” does a lot to discredit your opinion.
I’m not a lawyer, either.
Probate would mean the assets are liquidated to pay all debts. The house would be sold, the bills paid, and whatever is left over, everyone goes out to McDonald’s to order off the Dollar Menu.
You can’t “put the loan in your name.” IF the property had originally been titled in your name AND Grandma’s name, the title would say something like, “joint tenants with right of survivorship,” and the title would revert to you. It would be up to the bank if it wanted to CONTINUE the loan with you assuming responsibility.
You would probably be instructed to take out a new loan in your name only.
You could offer to BUY the house from the probate court. You go to your bank, explain the whole story, and apply for a mortgage. That would be income from the estate which would then pay off Grandma’s last bills.
Expect all of Grandma’s heirs to throw it in your face until the end of time that “YOU got Grandma’s house, we didn’t get ANYTHING.”
Probate Court will most likely not do ANY type of maintenance or repairs that the house could desperately need. You and your bank would have to negotiate for that. You’d probably find out after closing that the roof leaks, the furnace is dead, the sump in the basement burned out years ago, the place is infested with termites, and the new wiring that she had put in three years ago is not up to code.
Legal advice at this time would be PRICELESS, no matter WHAT the cost.
~VOW
The problem with trying to find solutions that don’t cost money is that the suit has been filed and if service has occurred, then the clock is ticking. You have to file a response before a certain date or you are in default. Contacting the bank and the law firm and getting all huffy with them just wastes time. They don’t give shit if you hire an attorney. Hell, they would be thrilled if you did. As someone who has litigated matters, I personally loathe dealing with an unrepresented party. Someone who is being represented by counsel generally knows what is going on and generally won’t start making unreasonable demands, and won’t waste time and money on pointless motions and pleadings that require me to put on a suit and sit through motions day.
This looks like a typical foreclosure action, they have to name everybody otherwise a party in interest who wasn’t named in the suit and properly served can come in and challenge the validity of the suit. I’m not sure what kind of form they are sending, but I bet that it involves giving up their interest in the estate.
The OP has the right idea, she is going to consult an attorney.
DiosaBellissima, if your uncle took money that he wasn’t supposed to take, then he is in trouble. I think that you should get someone in the jurisdiction, the estate was in and have them look at the estate as well as the foreclosure action.
In this case though, hiring a lawyer is money well spent. It is the wisest, best option because it makes sure all the loopholes are closed, and the matter is settled once and for all. It ensures that it won’t come up again later.
LOL. Your post is just adorable in its naivete.
The “theatrics” that I was talking about, which should be clear to anyone, was pulling stunts like making silly threats to the opposition and alerting the media.
As had been pointed out many times in this thread, free legal aid is available for people who don’t have the funds to hire a lawyer. Not that this matters because the OP can afford one.
She actually owned several mink coats and a pretty vast collection of jewelry given to her by her many husbands over the years. So, while we aren’t talking millions, I wouldn’t be surprised if it was at least $50,000.
Now, part of the reason I never raised my heckles much about this was that I knew my uncle had helped her pay her bills for years. Grandma had a good job where she made something like $75,000 a year, but she liked to spend money on clothes and jewelry to the point that she would turn up short for her mortgage or car payment-- that’s where uncle would step in and make up the difference. In fact, she retired early during the last year of her life due to her cancer and he paid the vast majority of her bills.
I wouldn’t be opposed to getting my own loan if the property is a wise investment. The more I look into it, the more I’m seeing that similar units in the same complex are renting for $1600- $1700, which is just downright obscene in my book. While we have no way of knowing what condition the house has fallen into in the last year or two (and it could be VERY bad), grandma was one of those very active, very particular Italian women in her early 60s who kept an immaculate home. That said, you are 100% right that there could be 10,000 things wrong, so I hope I’m not giving the impression that I’d be all HOORAY! HOUSE!!! without doing substantial research. $150,000 is a helluva lot of money.
Also, if any of the others have a problem with it, they can suck it. After all, I don’t talk to them for a reason. 
I’m happy to know that this is sounding like a standard process. Part of me was afraid that this was some weird thing, which would make it cost that much more to handle. It appears, from what I’m seeing, that the only weird thing here is that my uncle never entered into probate.
You’re also right that I need to consider hiring an attorney in Illinois. I’m going to meet with my guy here locally and see if he has any buddies back that way who can help me out. I’m not a fan of doing business with folks sight unseen, as silly as that may be. I won’t have a free weekend to fly out there for a few more weeks, so it sounds like I might need my guy locally to respond, then- if need be- go out for a visit. Ugh.
Well, I mean, I don’t have a $7500 retainer sitting around to just hand away to the nearest attorney, but I suppose I could find it if I needed to. Still, I’d rather handle this as cheaply and effectively as possible, because I can think of about 100,000 things I’d rather spend almost 10gs on.
DiosaBellissima, how did you get the lawsuit? Did they serve you. Did a sheriff or a process server give it to you?
I’m a little concerned that the clock is ticking in terms of when you have to respond. You may need to find someone a bit sooner.
A process server came to my dad’s house and served it to him on my behalf. I don’t live at that address, but I suspect this is because where I live is gated and they wouldn’t be able to get in.
The papers were served on Monday the 15th of October and it says I have 30 days from the date of service to respond.
Just a quick check of Illonois intestate laws (IANAL. I hope to god you have one) your uncle and your mom (assuming no dead siblings) each got 50% of the estate. I would say that your Uncle got part of or all of or more than his cut from the estate sale. You really do need everything to go to probate so that they can figure out how to divide up the house and see if your uncle owes any money.
In an ideal legal world and assuming a significant equity in the house, your uncle would quit claim the house so your Mom owns it 100% and everything is called even between them. Then Mom assumes the loan, rents it out to pay for the mortgage, sells it, whatever she wants to do. The problem is making it legal through probate, the status of the loan after ownership change. IIRC most mortgage loans are non-assumable which means that are assumable with lender permission but death/heirage may trump that.
What I have found with attorneys is don’t practice law yourself, but tell them what you want the outcome to be and let then handle all the legal mechinations. Also check that since this is at heart a probate issue if “the estate” will pay for what in effect will be you or your mom being the executor/trix.