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OgdenCho

Filing a TRO / Preliminary Injunction against a non immediate heir of an estate.

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My niece has hijacked my fathers (her grandfathers estate. After my mother died 7mos ago my niece became my dad's caretaker (he even put her on his checking accounts). Although she is not officially the executor she knows all the ins and outs of his affairs, and is essentially holding his rightful heirs hostage by withholding all information i.e. Life insurance, burial insurance, deeds, everything.

I need to file a TRO/Preliminary injunction.

Can I file it myself without an attorney (Mississippi)?

I know having an attorney would be best all around, but my question is: Can an ordinary citizen file a TRO.

In this small MS town, I was told I must have an attorney to file a TRO of this kind....(they only handle domestic abuse restraining orders!?)

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Sine your father is still alive, it makes not difference whether anybody is "officially the executor."  An executor is appointed only after a person dies and probate is opened.

 

Why haven't you discussed this with your father?  Maybe he wants the niece to assist him with his financial matters.  Maybe, if he trusted any of his children, he would have granted one of them power of attorney.

 

Before you begin asking about restraining orders, you might want to familiarize yourself with what restraining orders are used for. 

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Whomever told you that you MUST have an attorney to commence a legal action is incorrect.  Rather obviously, however, I suspect you don't know how to do it.  Such an action doesn't seem appropriate given what you've described (you're free to explain why you believe it is). 

 

You also fail to indicate that your father is dead, and why you wouldn't discuss matters with him (not that he's obligated to discuss them with anyone).  Also, unless he dies without a will, there are no "rightful" heirs (and even then, it's best not to presume that he's named any children as beneficiaries on any life insurance, or that his estate will be such that there will be anything left to inherit after estate debt (or that he won't give away major assets while alive).

 

"... is essentially holding his rightful heirs hostage ..."

Sorry, but this comment doesn't make any sense.

 

It doesn't make any sense to perceive it as you've posted here unless you're estranged from your father.  What about before seven months ago?  You don't say why you believe you're entitled to information.

 

Deeds to property would be among land records and are part of public record.

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Huh. Although the poster's grammar is poor, I was under the impression that the father IS dead. And if he is dead, the next step is probate court . . . and I presume the niece/granddaughter has not opened probate and been appointed executor of the estate by the court. So, you need to retain local counsel, open probate and request that you be designated the executor. If a will designating someone else as executor turns up, deal with that with your attorney if and when the issue arises. Once your are legally entitled to represent the estate, your attorney can advise you on effective means to deal with the niece and any unauthorized transactions she may have carried out.

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Is grandfather mentally competent?  As of right now, you have no factual basis to interfere with this situation other than the fact that you might dislike her.  If this is grandfather's wish for her to handle his affairs, there is not much you can do and a temporary restraining order will do nothing to help you out.  You should be consulting with a family law attorney to determine if a conservator is needed in this situation (an attorney or other professional, responsible person who can be given the responsibility to manage someone's financial matters). 

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Clarification: My father is deceased July 11, 2015.funeral was this past Saturday 7/18. None of the heirs were able to participate in the planning of the services.

(It didn't seem appropriate to press the issue without chaos.....historically speaking)

There is zero transparency.

Sorry for the confusing question.

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Huh. Although the poster's grammar is poor, I was under the impression that the father IS dead.

 

I got the exact opposite impression.  The talk about restraining orders convinced me that father is alive.

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Clarification: My father is deceased July 11, 2015.funeral was this past Saturday 7/18. None of the heirs were able to participate in the planning of the services.

(It didn't seem appropriate to press the issue without chaos.....historically speaking)

There is zero transparency.

Sorry for the confusing question.

 

Then retain a probate attorney and file to open probate.

 

I am not knowledgeable about probate in MS, but a quick search indicates that an attorney is required:

 

6.00 RULES CONCERNING PROBATE MATTERS RULE

 

6.01 ATTORNEY MUST BE RETAINED

 

Every fiduciary must, unless he is licensed to practice law, retain an attorney or firm of attorneys to represent, advise and assist him during the whole term of his office, whose compensation will be fixed or approved by the Chancellor. When an attorney has once appeared for such a fiduciary, in any respect, he may withdraw only with the consent of the Chancellor, after notice to the client. However, if he shall be or become negligent or unfaithful, in any respect, he may, with the consent of the Chancellor, be discharged. The practice of employing different attorneys, at the will of the fiduciary will not be tolerated.

 

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TRO can be issued to restrain a person or persons from doing something that can not wait to be decided by the court......maybe this is not the forum to ask legal questions as the responses seem to be a bit snarky.....to say the least.

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TRO can be issued to restrain a person or persons from doing something that can not wait to be decided by the court......

 

But what is it that the niece is doing that she needs to be restrained from?

 

File to open probate and be appointed to administer the probate estate.  Then, someone will have the legal  authority to evict the niece if that is needed, gain access to the property, gather information from those holding the father's assets, etc.

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IMO: the idea of having NO transparency from a non heir and not knowing.....not knowing anything just seems unreasonable. A TRO would stop anything being done, like incoming money that could be deposited into their joint account.

Like I mentioned in previous posts (or meant to mention) she handled his day-to-day affairs.

He added her to checking accounts to handle daily expenses.

My immediate concern is what is happening right now, and why isn't she being upfront......the damage that could be caused waiting for probate.

I hope that makes sense.

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she is not officially the executor she knows all the ins and outs of his affairs, and is essentially holding his rightful heirs hostage by withholding all information i.e. Life insurance, burial insurance, deeds, everything.

 

With less than two weeks having passed since date of death, it's unlikely the court has appointed anyone to be executor at this point.  If you want the job yourself, you're free to open probate and ask to be appointed as executor.

 

 

 

I need to file a TRO/Preliminary injunction.

 

For what purpose?  Certainly, nothing in your posts suggests any such "need" exists.

 

 

 

Can I file it myself without an attorney (Mississippi)?

 

Only a court can file a TRO or injunction.  You can only file an application or motion that requests the court do that.  You don't need to hire an attorney to do that, but your chances of succeeding will increase dramatically if you do so.

 

 

 

TRO can be issued to restrain a person or persons from doing something that can not wait to be decided by the court.

 

I think we're all quite aware of the purpose of a TRO, but you haven't conveyed any facts that suggests either a TRO or a preliminary injunction would be appropriate here.

 

 

 

IMO: the idea of having NO transparency from a non heir and not knowing.....not knowing anything just seems unreasonable.

 

She has no legal obligation to tell anyone anything.  If she is appointed to serve as executor, she will be obliged to provide accountings and an inventory to appropriate persons.

 

 

 

A TRO would stop anything being done, like incoming money that could be deposited into their joint account.

 

In order to obtain a TRO, you would have to convince the court that there is a real risk of something improper happening immediately such that the matter cannot wait to be addressed in whatever time it would take under the normal rules.  Also, neither a TRO nor an injunction is appropriate based on mere speculation that the person to be restrained might do something inappropriate.  There must be evidence of a reasonable probability of some wrongdoing.  That she isn't being "transparent" isn't enough.

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Also...  Although as pg1067 has noted, you haven't really provided much of a case for it, some states will allow a "preliminary executor/administrator" to take action on an emergency basis if there is a demonstrable need for it while the appliction to open probate is considered.  I don't know if MS provides that option.

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There's no reason or real basis to take offense.  People's matter of fact tone (versus whatever tone it is that you seem to be looking for) does not equal "snark".  Circle back and re-read your post with a stranger's eye.  It provided very little relevant information.

 

I also don't know what you mean by "tough".  Consider it may be you who is touchy, which may explain the thin skin when it is a little over a week since the death.

 

"There is zero transparency."
 

Again, why would you expect some niece to be offering information?  You don't explain this.  The fact that she is a niece aside, it's like expecting the live-in paid caretaker to be the repository of information related to his/her client. 

 

It's unclear what the funeral service has to do with the ultimate topic of the post.  Rather obviously, you communicated with the funeral home about it.  We cannot know what your father did or did not do from here, or why the funeral home would say "only [who?] was authorized by your father to [do x-y-z]."

 

Is a relevant missing fact that you were estranged from your father?

 

"None of the heirs were able to participate in the planning of the services."

 

And you seem to be studiously avoiding providing relevant info, e.g., that you were estranged from your father.  It's still unclear why someone would expect the niece caretaker to have financial information.

 

Were I living in MS, I'd be lobbying the legislature about changing the relevant statutes.  There's no good reason to force people who would be administrator or executor of an estate to obtain counsel.  I haven't read the entire statute, but one presumes there is an exception with regard to small estate administration.  I'm sure the MS legal industry would do just as well if this statute were repealed.  I'd consider such a statute more about industry protectionism than anything else.  :)

 

Filing to open probate based on intestacy and asking to be appointed administrator of the estate would be the way to go.  If there's a will that was prepared, this would flush it out.

 

If niece is living at father's home, I'd feel free to warn her not to mess with things unless and until she's appointed executor of the estate if your father made a will nominating her to act as such.  Once someone's appointed administrator (or executor, if a will is found), (s)he can issue the niece notice of termination of tenancy (again, assuming she's living there).

 

*  *   *

 

Your father apparently made a common mistake if he added her as an owner to bank accounts.  That's not necessary and in fact ill-advised if she was merely engaging in day-to-day transactions.  If he put her on the account as joint tenants w/ right of survivorship, she became owner the moment he died by contract and not much you can do about that. 

 

Naturally, any checks payable to your father from the moment he died onward should be held until an estate account is opened.  Those with a legal stake in the estate are free to petition the court for an accounting of the niece's involvement in financial transactions preceding his death. 
 

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Condolences to you on the loss of a relative that you cared about.  There is no need at this point for you to hire the services of a probate attorney, since the death just recently occurred, and the family needs time to grieve.  If there are any assets left in this estate, the niece will file probate at the appropriate time, probably in the next 4-8 weeks.  I know it's frustrating that she is not being more forthcoming (if you think you may be a beneficiary, you obviously would like some idea of what you may be inheriting), but it may take some time (a few months) for probate to be handled properly.  If she has used power of attorney and/or been named as co-owner on accounts or has stolen all of the assets, then she may feel there is no need for probate to be done.  It would be nice if she would send the designated heirs a copy of the will, but if I were you I would send her a certified letter asking for a copy of the will if you are designated as a beneficiary.  Why should YOU bear the financial burden of hiring a probate attorney to handle this estate when that is the potential executor's duty?  Only reason you would want to hire an attorney is if you wanted to force or compel the producing of the will:  until a few months have passed and no one has opened up an estate at the county courthouse probate court, you can go online to check the county courthouse probate court records on a daily or weekly basis, using the decedent's name, to confirm whether or not a probate for his estate has been opened or not.  At this time you need to be patient and let the process play out on its own.

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Were I living in MS, I'd be lobbying the legislature about changing the relevant statutes.  There's no good reason to force people who would be administrator or executor of an estate to obtain counsel.  I haven't read the entire statute, but one presumes there is an exception with regard to small estate administration.  I'm sure the MS legal industry would do just as well if this statute were repealed.  I'd consider such a statute more about industry protectionism than anything else.  :)

 

Even without such a statute the case law in many states comes to the same result. Why? Because an estate is a separate person, like a corporation or trust, and since artificial entities cannot act for themselves in court, some human must do that for them and the general rule is that a person (including an estate, trust, or corporation, LLC, etc) may only be represented by another if that person is an attorney. There often is an exception for small claims court actions and, for estates, small or informal probate actions, however. In any event, this rule is not so unique as you seem to paint it, and there is a logical reason for it even if you don’t agree with it. It's not just about protecting attorneys (though there may be some element of that). It is also about ensuring court actions go smoothly and that the public is protected. As an attorney who has dealt with pro se litigants I can tell you the pro se litigants often really slow things down and cause all kinds of unnecessary action and expense because they are largely clueless about how litigation works and what they must do to prove their case. Probate in particular isn’t intuitive and there are very particular rules that must be followed in a formal probate. Having an executor who is clueless about the law handling the court matters becomes a real mess for the court and the other parties. 

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The answer to your question is if you know how to correctly prepare the

paperwork to file with a Court, then do it.  If you don't know how to do so

yourself, then hire a licensed local attorney to do so for you. 

 

Many people naively think that most private attorneys work for free.

As you learned that isn't true.

 

This site is not designed to provide posters a thorough step-by-step seminar for self

representation. It is more a site to get posters pointed in the right direction.

 

My suggestion is that you drive to the University of Mississippi Law

School Law Library and be prepared to spend some time in the stacks there to

attempt to research the answers to your document preparation questions.

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OgdenCho,

 

Thank you for the post.  I would suggest obtaining the services of an attorney to file one for you, but if you are set on filing it yourself, here are a couple of resources you may find helpful:

 

Mississippi Protective Order Laws

What is a Temporary Restraining Order

How to Get a Restraining Order

 

 

In case you would like to retain an attroney, you can begin youre search at this lawyer directory.

Best of luck,

 

The FindLaw.com Team

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