Replies to This Discussion

Permalink Reply by Max on November 14, 2013 at 17:19

(Louisiana).....Yes, the usufruct ended with the death of  your mother, and if the property she had usufruct over is producing any income, that income is now a part of the estate. 

I'm guessing that you and the other heirs own one-half of the property, undivided, and your mother owned the other half with an usufruct covering the half that the heirs received when their father died, (or all of the property was passed/donated on to the heirs, @ the death of the father, the mother received an usufruct for life on the property).  I'm also guessing that a will was left giving equal proportions to each heir, but undivided.

The executors can do whatever they like with the property, even sell it.  If they're independent executors, only one of them has to sign papers for anything that comes up, including a surface lease.  They can cut timber, tear down the building, sell the building, whatever comes up, it's their decision.  Any monies received are a part of the estate and can be used to pay debt's owed by the estate.  If there are no debts, then the monies should be placed into an "Estate Account" for further distribution to the heirs.

If any of the heirs don't like what's going on, they have the right to hire their own attorney and try to regain some say into what's going on.  Their "say" would be through the courts and it's expensive to hear a Judge tell your attorney that everything done by the estate has been on the up and up, according to State Law.  The executors would have to do something pretty bad to have a Judge shut them down and appoint a new executor.  Anytime there is disagreement about an estate and the heirs are willing to hire their own attorney, that estate is already in trouble and relationships will be put on the line. 

You stated that the two executors have already signed the surface lease and the stakes are in the ground.  Sounds like it's too late to do anything.  You could have filed a Protective Order to stop any action going on, but that requires a Judge to first hear what your complaint is and then he determines if you have a good enough reason for him to sign that Order.  Then you post a bond, the amount set by the Judge according to the value of the estate or part in question.  You can spend a lot of money quick when you use the courts. 

So far, you don't have very much to go on, I doubt an attorney would do anything except tell you there's nothing you can do.  The executors appear to be doing their job and keeping each heir happy is not one of the requirements to be an Executor.  Many family's elect one of their own to handle the job of estate Executor and by doing so, craft the break-up of that family.  The bigger the estate, the more you need a professional Executor to handle that estate if there are several heirs.   

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Permalink Reply by P.G. on November 17, 2013 at 17:37

Make you go...hmmm?...if the sale included the mineral rights...huh?

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Permalink Reply by Max on November 18, 2013 at 6:00

Cindy, the amendment added by your mother was there for her protection.  If the Executors want to, they can ignore the amendment and sign the surface lease papers anyway.  The other siblings that disagree with the Executors can hire an attorney to try to stop the new surface lease, using the original amendment, but since the Executors are the legal representatives of the estate, their direction (under the guidance of an attorney) would carry a lot of weight when reviewed by a Judge. 

The siblings attorney has the original lease amendment signed by your mother stating her wishes, but the Executors must do what they think is best for the estate and arguing that point is hard for a Judge to ignore.  If the property/building in question was left to a particular heir in a Will, that heir would have a good reason to not want a surface lease, but at the same time, the other heirs wouldn't want to miss out on more potential inheritance.  The Executors would be caught in the middle.  If that was the case, the Executors could appraise the building (to be given to the heir per Will), or move the building and continue on.  The property that the building is built on (and the building, immovable property) became undivided property when your mother passed away and remains undivided until the heir takes possession.  I don't think EXCO would be moving ahead with the pad if they though a court battle would put them on hold, they know what was signed by the estate and evidently they feel good about it. 

The move to obtain an account balance is a red flag to me.  This move could be the start of more to come, depending on how the Executors feel about their actions being questioned.  The disagreements tend to build up more after each parties attorney's directs their clients to not share any information with the other parties involved.  This is because any information passed to the other side can hurt their chances in court.  When siblings are restricted to what they can tell each other about matters that were common place throughout their lives, the strain will erode relationships.

I like your view that no matter what happens, the family will always come first, but I would guess that not all of the siblings feel that way.  They would take property/monies any day over chatting with little sister at Thanksgiving.  In the real world, family units change when the parents have passed from the picture.  Many times, the only glue holding the bunch together was the parents, and after they've gone, the glue dissolves and members drift toward their own individual family needs.  This happens to some degree with all families, we all change each day.

I think the house sale didn't go through because the closing attorney didn't like the "mood" of the sale and didn't want to take the chance of the sale coming back to bite him.  Getting all the heirs to sign off would keep him out of the hot seat.  The Executors could have found another attorney who didn't care about the other siblings and sold the house anyway, depending on the attorney and what chances that attorney would take. 

When Executors sell property, they're required to have a good reason, but just about anything can be used as an excuse if they're bound and set to do so.  The other parties involved would have to bring suit against a sale and then they'll be faced with attorney cost and court fees.  The estate uses funds from the estate account to cover the expenses and that erodes what the individual heir would receive when they take procession of their inheritance, the heir bringing the suit would pay twice.  The value of the property would have to justify the cost of court.  Using past records of cases involved in such suits, a person can see how some sales in the past were held up when taken to court.  I read one review where a property was sold at 1/4 of it's value, to one of the parties involved, and the court held it up. 

The bottom line is; Executors of an estate can do a lot of things that may not be in the true interest of the estate, but until someone challenges what they do, they've got the legal authority to do so.

Max

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Permalink Reply by Two Dogs, Pirate on November 18, 2013 at 11:31

A judge would need to sign the JOP and from that point it would be legal.

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Permalink Reply by Two Dogs, Pirate on November 18, 2013 at 11:32

I have seen JOPs overturned by the courts.

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Permalink Reply by Max on November 18, 2013 at 16:59

Cindy,

(Assuming that the property in question is a continuous tract of land and not separate properties scattered across the parish)

The half of the property that your dad left in his Will belongs to the heirs already, there should have been a succession/deed transfer at his death.  The Executors don't have control over the property you received at your father's death.  They are only "co-owners" on that property and the only voice they have is an undivided owner's voice. (Unless your father's half were separate tracks of land and there were enough tracks for everyone to each get one)

The usufruct ended with your mother's death and does not extend to the Executors.  They only have control over her half of the estate, the other half already belongs to the heirs.  (Unless the property never had any deed changes and the whole place is still in your mothers name)

Holding out signing the JOP wouldn't keep the Executors from getting any monies from a lease, but it would change who gets to sign the papers.  After the JOP is signed and filed, everyone listed on it would have to present signatures for any new leases.  As long as the JOP is not signed and filed, the Executors are the only ones required to sign any documents. 

The JOP would transfer title of the property to the heirs, undivided.  An "Act Of Partition" has to be filed to divide the property.  Each heir would receive their share and this document would record the new property descriptions due to the division.  When this document is signed and filed, the land is yours and you should receive the tax notice on your portion when it's sent out. 

The Executors may be completely honest about everything going on.  Most Executors are family members and really don't know everything they should when handling an estate.  They rely on the attorney to tell them everything and the attorney's advice sometimes turns into what the attorney would do if he/she was the Executor.   

Max

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Permalink Reply by Max on November 19, 2013 at 5:44

Cindy, yes, it "appears" that your mother's estate was delayed on purpose, but, without all the facts concerning the property, it would be hard to say if the delay was truly for time to sign a new lease.

Many things can come up during a succession that have to be corrected before the succession can continue.  Errors on property descriptions, joining properties that may have boundary issues, back tax's, etc.  The Executors should be notified of  any delays by the estate attorney and then they (Executors) should be able to fully explained the delay to the other heirs.  You didn't mention any problems associated with the estate and I would guess that everything was in order, because if wasn't, the Executors would have put that monkey on the "problem's" back, and you and the other heirs would be directing their issues toward the estate attorney to get them fixed and move on.

I would guess the biggest reason for the delay was to avoid any possibility for any of the other heirs to not sign a lease.  The Executors must have known that some of the heirs didn't want EXCO on the property and they took care of the matter.  Some heirs ended up happy, others did not, but giving everything we know about the succession, the Executors did their job.

There is one thing that you haven't mentioned, how are the minerals being divided?  I'm guessing that the property is a continuous 40 acre parcel and will be divided into each heirs share.  The "who get's what" is yet to come and dividing 40 acres between 10 heirs is going to take some time.  The minerals is another thing.

When the lease was signed, everyone had to sign, that tells me the property was undivided.  It also tells me that the children/heirs were on record that they owned half of the property undivided, along with their mother, whose half was also undivided between the property that was conveyed when their father died.  The minerals on the property are subject to Prescription  and that fact is something to consider.  Prescription can be hard to follow, and impossible unless you have all the records.

It sounds like the decision making is far from over.  The property still has to be divided (or not, if you want to deal with co-owners), and with 10 heirs, someone is not going to get what they want.  With four heirs filing suit against the estate, the Executors will have to continue in their roll until all issues are worked out. 

I hate to tell you this, but I don't think the four heirs have a leg to stand on.  Their suit will delay the succession and cost the estate, including your share.  As you mentioned early, the four heirs have asked for an account balance, why?  In the big scheme of things, asking for an account balance is trading Chess rooks with each other.  You spend $1500 and two months of time for a Judge to tell the Executors to show the four heirs the books.  If the Executors choose to, they can counter and keep the books closed, it all depends on how much someone is willing to spend.  During this delay, other concerns usually pop up and those will have to be addressed.  Sometimes it's best to drop everything and complete the succession.  This would complete the Executors job and they can be excused before they can do anymore damage.

I would ask my siblings about what they intended to do with the information they're seeking.  I'm not an attorney, but it's not to hard to see the writing on the wall.  I don't think they can go back and have anything changed that's taken place.  They would have to prove that the Executors failed at their job (on purpose), and directly caused damages to the heirs through their mishandling of the estate.  That is very hard to do.  Being an ignorant Executor and making errors is not a crime, just not smart for the estate.  The cost to remove an Executor can run into the thousands, and, if the Executor is removed, who will the Judge appoint to take over?  One of the other heirs?  If so, the circle continues.

Another thing you've not mentioned, Executor pay.....they're entitled to a percentage of the estate, or they could have been compensated by receiving extra assets thought the Will.  Either way, state law allows something for their work and time.  The battle has begun, were it ends up will be the big question.  The four could drop the suit, requesting no pay for the Executors as the condensation.  The Executors may jump on it and all 10 of you would benefit.

Max    

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Permalink Reply by Henry on November 20, 2013 at 1:35

Cindy,

You might check your mother's will.  It may state that the executors are not to be paid for their time.  I am the designated executor of an estate, and the will explicitly states that I am not to be compensated for my time -- it says that I am only allowed to be reimbursed for any expenses I incur as executor.

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Permalink Reply by Max on November 20, 2013 at 6:39

Cindy,

Everything is in the details and to know if the Executors did, or did not, have the authority to lease the 6 acres would be there.  I don’t think the estate attorney would let the Executors sign papers leasing property unless they did have control over that property.  Since the two properties are separate, and the heirs have already received part of their inheritance due to the death of their father, I would guess that the 6 acres was not part of the properties received by the heirs at the death of their father.  The ownership of those 6 acres would be recorded in the Parish records and EXCO would contact those owners for a lease.  If the 6 acres already belong to the heirs, and only two of those owners signed for a lease, then EXCO needs eight more signatures before they can do anything.  EXCO and other companies make mistakes, but to make a mistake like this is like shooting yourself in the foot.  A mistake this big would bite them and they know it, companies tend to have everything in order before they forever change someone’s property.

The Executors pay is tied to the expenses and time they spend on handling the affairs of the estate, not for actual upkeep on the properties.  The estate doesn’t owe anything to a heir for upkeep, unless that estate “hired” the heir to perform those duties.  The Executors are entitled to 2.5% of the GROSS estate’s value, or even more (detailed records showing expenses).  The Executors would have to split that 2.5%. 

With the amount of property you mentioned, along with everything else, that 2.5% is more than pocket change and it’s a rare bird that would turn down that compensation when they have the right to it.  I would try to come to an agreement with all the heirs about the Executor’s pay before the succession moves on, the Executors may agree to be reimbursed for their expenses only.  Waiting to the end of the succession to figure out what the Executors will be paid just increase your chances that they will take the 2.5%.  If all of you come to an agreement, have the estate attorney put it in writing and everyone sign.  It will cost the estate for the extra work, but the return would be worth it.  Do check your mother’s Will, it may have provided something for the Executors.  The language of providing compensation for Executors in Wills varies greatly, from none to specific instructions, you’ll probably need an attorney other than the estate attorney to review the Will to see if there is something addressing Executor pay.  Sometimes the wording in a Will can be taken several different ways and most attorneys will point that out.  

Division of the home’s contents should have taken place only after a Detailed Descriptive List (DDL) listed those contents, then signed by two witnesses for the record.  This is done mostly to keep rich dishonest folks from hiding monies or assets from the taxman, but it also lets the other heirs see all the assets (jewelry, furniture, auto’s, etc.) of the estate.  DDL’s are required to list everything, including the spoons and forks.  In reality though, most people list things that have value, not every item in the house, and, unless there was a valuable item that disappeared, the DDL will be placed aside, without notice, and become a part of the records of the succession.  If a DDL was not done, or is incomplete, the court may take notice.  Most times the DDL is not important enough to justify the court expense it would take to make the Executors produce an acceptable document.  The cookie jar (etc,) you gave mom for her birthday has ended up in sis’s hands and there’s no record of it on the DDL.  Too bad for you, lesson learned the hard way.

When heirs are notified that they can enter the home and go through things, it should be done when all heirs are able to do so, if not, then everything should be left alone unless those un-attending heirs give their OK for the divisions to begin.  This keeps peace in the family.  If you have members that don’t care about the others, then it’s get what you can before the other’s haul it off.  Many heirs have opened the door of their parent’s home, teary eyed and full of grief recalling the memories of mom and dad, to be met by a pile of garbage and things all over the floors, left there by their loving siblings.

Ten thousand dollars sounds about right at this point and you still have a lot of things to do with the succession.  Another five/ten thousand should finish the succession up, unless someone hires an attorney and everything stops until those matters can be cleared up.  Cindy, you and your other siblings are experiencing the pain of honesty, you depended on the Executors to be fair and put their needs behind the needs of the estate and the other heirs.  It appears that didn’t happen.

Louisiana has Prescription Laws and what governs them depends on what has happened in the past.  Minerals usually have a 10 year Prescription.  Squatters/boundary issues have 30 years.  Here’s the basic;  I sell you my land but I retained the minerals.  State law gives me 10 years to hold onto those minerals and at the end of those 10 years, if there are no wells (minerals) producing, the minerals pass to you or your heirs.  If there are producing wells, the 10 year period (clock) begins when the well is no longer producing and you’ll receive the minerals after 10 years.  There are more rules on this, but that’s for another discussion.  Prescription dealing with property boundaries and squatters uses 30 years.  If you let someone (friend, stranger, family, anyone) move onto your property, or let them openly use it as their own, they can claim the property as their own after 30 years of continuous use.  A boundary Prescription comes into play when a new survey shows that the line between two properties is off.  If there is a fence on the boundary, and it can be proved that the fence has been there for 30 years or longer, the fence trumps the survey.  The person owning the original fence doesn’t have to move it or give any property to the property that was surveyed.

Your concern with Prescription would be its relation to the minerals.  Since all of you signed the Mineral Lease that tells me the minerals are undivided.  Now that your mother has passed, her minerals are now undivided and owned by the heirs also.  From this point, I don’t know if that can be changed, someone else would have to chime in on that.  But….given Louisiana Civil Code, anything is possible.  I would guess that any minerals held undivided and then leased, as an undivided parcel of land, would remain undivided, each heir owning a percentage of the minerals.  The part of the property received at your father’s death would be leased, undivided and your mother’s part was leased with her as the owner.  Now that she has passed, her minerals (I think) can be either divided up between the heirs or left undivided and shared by the heirs.  If the minerals are left undivided and shared, the 10 year period of Prescription begins when the heirs take possession and will end 10 years later.  The minerals will revert back to who owns the surface (unless there is a well producing) at that time.  Having ten heirs makes this a bit more challenging for whoever is taking care of things, and you must make sure that your Executors are doing what they should.  A mistake now could set the picture for one heir (unknowingly) to gain more wealth from the estate than the other heirs as time goes on.

 Max

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Permalink Reply by Dion Warr, CPL on November 21, 2013 at 3:32

Cindy R:

Thanks for laying out the situation. It would appear that your father set out that the disposable portion of the estate be left to your mother, with the forced portion being left to you and your siblings. This would seem to account for the ownership breakdown that you set out.

It would also appear that the executors were likely independent administrators, which would allow them to act on behalf of the estate without court approval in most instances. Letters to the same were likely submitted when the succession was opened or soon thereafter - you may recall signing off on this.

The concept of usufruct granted to a surviving spouse, as it would apply to estate property, now that both parents are deceased, somehow surviving the death of that spouse, is troublesome to me. Such rights of usufruct usually terminate at death unless specifically granted or conveyed by the owner of the usufruct to someone else. I think that a more plausible scenario is this:

The estate (controlled by the executors) for as long as the succession has not been discharged would be in possession of 75% undivided interest in the estate properties. You state that there are 10 heirs, each in possession of 2.5% (1/10 of the remaining 1/4). As long as the succession remained open, they would own or control 80% of the undivided interest in these properties, which is equal to the minimum amount required to consent to surface operations, as outlined by Article 175 of the Mineral Code:

§175. Co-owner of mineral servitude may not operate independently
A co-owner of a mineral servitude may not conduct operations on the property subject to the servitude without the consent of co-owners owning at least an undivided eighty percent interest in the servitude, provided that he has made every effort to contact such co-owners and, if contacted, has offered to contract with them on substantially the same basis that he has contracted with another co-owner. Operations as used in this Section shall include geological surveys, by means of a torsion balance, seismographic explosions, mechanical device, or any other method. A co-owner of the servitude who does not consent to such operations has no liability for the costs of development and operations except out of his share of production.

Thus, if EXCO wished to utilize the surface given the restrictions on the lease, and the executors desired to contract, once three other heirs indicated their rejection of an offer of a surface lease, it would be in the consenting parties' interest to not proceed with discharging the succession (as once they had done so, they no longer would have owned or controlled 80%, and the dissenting heirs (now co-owners) would have represented an insurmountable roadblock to the contract (assuming that each heir would be in possession of an equal one-tenth after the JOP).

As long as the executors or EXCO conveyed the offer to all of you (as co-owners), it would not appear that anyone did anything wrong. Unseemly or untoward perhaps, but likely not something actionable. One would hope that EXCO would offer to contract with any other co-owner at substantially the same terms for their proportionate share not already burdened by the surface lease, and one would surmise that each heir would receive a proportionate share of the consideration received by your mother's estate upon division of the assets. However, IANAL, and I likely do not have all of the facts.

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Permalink Reply by Dion Warr, CPL on November 21, 2013 at 14:08

Cindy:

Unless there is something else yet to be disclosed, this would have likely left each of the children with an undivided 1/28 (1/7 of 1/4, being the forced portion of your late father's interest, which would be 1/2 of his 1/2 of the community), the grandchildren would have likely been vested with equal one-fourth shares of your deceased sibling's interest (being a net 1/112 each), and your mother would have been possessed of her half as well as the disposable portion of your father's interest (being 1/2 of 1/2), which still left her a net undivided three-fourths, as well as usufruct over the remainder of your father's estate.

This does change the math, albeit less in the favor of those who would be against the use of the surface. Assuming that the executors were empowered as independent administrators of the succession, which had (or has) not been discharged, they would have controlled a net three-fourths undivided interest plus a net undivided 1/14 (1/28 each) individually, which is in excess of 82%. Mineral owners cannot compel a partition against other co-owners, and having met the supermajority criteria cited previously to effect surface operations, there wouldn't appear to be too much that could be done to stop it. Short of gross misconduct or willful deception, and with no expenses left to be paid, there appear to be little grounds to effectively reverse or halt the actions of the independent executors with respect to the execution of the surface lease. Access to the surface to conduct operations is part of the normal right of enjoyment of the mineral co-owner, and in general no co-owner pay prevail against another co-owner as to his rights (provided again that as to surface, the provisions of R.S. 31:175 are met). The administration of a succession by an executor is not a democracy, and by independent executor is generally not reviewed by the court.

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Permalink Reply by Max on November 21, 2013 at 15:01

Cindy,

I would speak with the other heirs and inform them that it would be in their best interest to meet with an attorney and discuss the estate. 

As mentioned, the Executors are not experts, and if the estate attorney is an average attorney that handles house and lot estates, then you're at risk. 

You could ask the others to help pay for the attorney, pointing out that their attorney expense would be 100% if they have a problem, and haven't signed on with you.  Family's share attorneys all the time, you're doing it right now with the estate and two Executors.

You will have to deal with Prescription someday, and you can see how confusing it can be.  I would want to get things right on what I will be owning, before things are split up.  The only way you can be sure is to talk to an attorney.

Max

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