Legal Question in Civil Litigation in California
Say you have two people, A and B. Little brother and big brother... They both "owned" one big thing together, when B wrote his will, in which B pretends he owns the whole thing, because A is not aware of his ownership share, because B is quite dishonest, and much older. B lies about it to A for many years. Call it a joint tenancy with right of survivorship. B dies and B's assorted friends file to probate B's will and they include in the petition A's property. It doesn't smell right so A hits the legal web sites to try to figure it out. He also consults at least 20 lawyers but none of them understand the situation. A few months pass while A gradually figures out what is really happening, But lawyers want six figure sums to help him, based on their estimates of what he will realize, which is probably wrong. The "friends" pretend A's rights don't exist. (Note, B is dead and at his death, in theory, all ths disputed property instantly becomes A's) Not by will or inheritance, its been both of theirs all along, but is no longer B's at death. B just didn't tell A.
1.) The whole proceeding looks more like a summary judgment to A, with his rights being stolen, so he argues that its not a probate as they wont settle it, instead, they are moving for summary judgment. For the purpose of presumptions in court, who is the "moving party"?
2.) Does A have to do anything, since its his, can't he just tell people so, and ask some court (hint probably a federal court) to help him?
3.) Since its all about defending your turf, and doing that costs a lot of money, If the situation created a constructive trust, can he use money from that trust to buy justice?
3 Answers from Attorneys
There is no reason to try to be vague in describing the facts of your case. Either the property was held in joint tenancy or it was not. It benefits no one by playing a game and not being direct in stating what the facts are. If 20 different lawyers do not understand the case as you do, then why do you feel the lawyers on lawguru, given less information, will understand the matter? If lawyers are telling you that on an hourly basis their fees will end up being in the six figures, they are saying that the case involves a great deal of work and is questionable as to whether you can win.
The moving party is the person who asks the court for a decision, by filing sit or a motion within the suit. Anything to do with your brother's Will belongs in Probate Court; matters dealing with your rights wholly separate from your brother's Will could be filed outside Probate Court but the judge assigned to it might say it should be in Probate Court. It seems you should file a suit to quiet title. Federal court is only for federal issues and a dispute over land in one particular state normally involves no federal issues. Saying that the property is yours will not help if others claim ownership; how can you sell or rent it out if you have no proof you are the owner? If it is disputed that you own the property, how do you intend to get the money to use it to prove your case? Moreover, how has the matter changed from being one about a piece of property into one involving cash?
I do not know you or anything about your case really, but it does not seem to me that you know very much about the applicable law and that you probably did not give a direct presentation of the facts to the attorneys you spoke to. No one is going to be able to help you with your being evasive. And if 20 attorneys can not help you to the extent you want, the 21th attorney is not going to be any different.
If A and B own property in joint tenancy, and B dies, A owns the entire property, without necessity of probate, as a matter of law. All A has to do is record an affidavit of the death of joint tenant, with a copy of B's death certificate.
Mr. Roach is right. If A really had a joint tenancy with B, it is simple to put the property in A's name and no attorney in their right mind would tell you it takes six figures to resolve it. Which means Mr. Shers is also right - your facts are evasive and don't make any sense.
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