would a quiet title help me

[plaided]

What is the name of your state (only U.S. law)? NJ

I'm wondering if filing a quiet title would help me. I know it's thrown out there alot to prevent foreclosure, but I am grateful now it was brought to my attention since I may have a legitimit case for filing one.

My father passed away this year with the home in foreclosure. The funeral home made an error and put he was married when he was never legally married. The funeral home did not ask for a marriage certificate or even talk to the person listed as his spouse, I was the one and only sole person handling the burial, so this isn't a family dispute case at all. This is a very costly error on the funeral home's part. I'm thinking at this point of trying to file a claim on the funeral home, but I guess that's a different matter. I'm told I won't have a claim if it was an honest mistake, but... seriously, the problems this is causing. Or maybe it's the towns fault for not requesting marriage proof in the first place?

Anyway, my issue now is I can't go through the probate court to get the title to the house. They want the person listed as his spouse as next of kin. she is mentally not capable of doing this,, but I am not appointed as guardian of her which would be a whole other thing

I could maybe work something out with the mortgage company. Maybe sell the house, but I was told a realtor won't even work with me if the house isn't in my name. The court says I need proof my father was single... I can't believe it, why didn't they ask for a marriage certificate in the first place? I asked if I went to file no record of marriage for either person if that would work and I was told no because they could of gotten married out of state even though both people were born in the same state and lived there their entire life.

There is a sheriff's sale now on the house, there is a good deal of equity in the house.... and I'm not sure who to blame, the town, the funeral home...I'm losing so much. I kinda feel like I'm being treated unfairly, but also the person listed as next of kin is being treated unfairly because even if she were to legally get the home and anything else she isn't because of her mental condition.

I'm thinking at this point a quiet title might actually be the option... and I'm actually not using it to get out of the foreclosure (although it might be a bonus if there was fraud on the mortgage, which I'm suspecting something is wrong since I can't get the title in my name and the sheriff sale right after my father passed) but to have the title of the home given to me like it lawfully should be.

I would most likely have to do this per se on my own. I guess I have nothing to lose. The probate process was going to cost me a chunk of money anyway, maybe a quiet title would buy me more time too. In the event I can't stop the sheriff sale I'm wondering if the quiet title would still help me? since I'm trying to make my claim on the property... maybe it would work if there is no bidders?

I have no brothers or sisters and I'm sure there is noone else to have claims on the property. Like I said this isn't a family dispute, but a problem in the courts. And maybe it won't work since it feels like the court is against me...?

 

[justalayman]

has anybody filed to open probate on your father's estate>

how long ago did he pass?

and no, filing a quiet title action would do you no good because until probate is settled, you have no proof of standing on the property.

 

[plaided]

I'm not sure what open probate means. My father didn't have a will, he died a bit unexpectedly in April of this year (hence urgency to also get the medical records, the sooner the better and I only have 2 years to file against medical claims). I called the hospital asking if there's anyway for me to get them and they said only the next of kin or the probate paper appointing me executor.

Thanks for letting me know a quiet title won't be the answer right now... I'll still keep it in mind but I guess it won't be the solution here.

I wonder if things would of been this difficult if my father was listed as single... I called social security the other day about the one time lump death payout, and even for that they request a marriage certificate and the death certificate. I guess I'm still trying to wrap my head around that no proof was needed to put married on the death certificate but then it seems like there is nothing that can prove he was single.

 

[justalayman]

Opening probate means opening a file at the probate court so somebody can be appointed personal representative and be able to deal with your fathers assets. That is what it would take to be able to transfer title to the home as well as collecting any money he had in bank accounts and the disbursing the assets.

You lost me on the time to file for medical claims. What sort of medical claims are you speaking of?

 

[plaided]

Medical claim, meant a negligence claim if something went wrong at the hospital. I read I only have 2 years to do that. Just another very important thing besides transferring the deed

 

[justalayman]

Anyway, my issue now is I can't go through the probate court to get the title to the house. They want the person listed as his spouse as next of kin. she is mentally not capable of doing this,, but I am not appointed as guardian of her which would be a whole other thing

the problem here is either you are being told incorrect information or you have not attempted to do anything concerning probate.

first, naming somebody next of kin has nothing to do with their mental status. Either they are or they are not the next of kin.


then, since are are a close relative, you can file to open probate and seek appointment as administrator. It does not have to be the next of kin.

If appointed administrator, if you do not believe the woman is his spouse, then you will have to prove that to a reasonable certainty.

I called the hospital asking if there's anyway for me to get them and they said only the next of kin or the probate paper appointing me executor.

or as a plaintiff in a wrongful death suit.

 

[LdiJ]

the problem here is either you are being told incorrect information or you have not attempted to do anything concerning probate.

first, naming somebody next of kin has nothing to do with their mental status. Either they are or they are not the next of kin.


then, since are are a close relative, you can file to open probate and seek appointment as administrator. It does not have to be the next of kin.

If appointed administrator, if you do not believe the woman is his spouse, then you will have to prove that to a reasonable certainty.



or as a plaintiff in a wrongful death suit.

However the difficulty, as we all know, is in proving a negative. OP, is someone actually claiming to BE his spouse, or claiming that she is his spouse on her behalf? Or was this just a flat out mistake on the death certificate?

 

[justalayman]

However the difficulty, as we all know, is in proving a negative. OP, is someone actually claiming to BE his spouse, or claiming that she is his spouse on her behalf? Or was this just a flat out mistake on the death certificate?

Absolutely agreed.





as to how the partner of the decedent was listed as spouse:

The funeral home made an error and put he was married when he was never legally married. The funeral home did not ask for a marriage certificate or even talk to the person listed as his spouse, I was the one and only sole person handling the burial

apparently it was something the OP stated. OP needs to have the death cert corrected if there was an error. If it was info provided by another person, maybe OP needs to speak with them about the issue. Maybe there is something OP was not aware of concerning their father.


http://www.state.nj.us/health/vital/amend.shtml

 

[STEPHAN]

I know it will sound strange to you, but you should also consider the posibility that you father WAS married. I have seen something similar.

 

[plaided]

The court never mentioned to me the option of opening probate. I will inquire about that next week, thank you. Not sure if the clerks at the court sometimes just do not know everything or what. I have been there 5 or so times already asking what I can do. I'm told I need a court order but then I would still need proof.

I'm the only one who handled and paid for the burial... the funeral home never mentioned if anyone else was involved or contacted them, which I think I will ask about. If so it definitely was not the person listed as spouse or any other family or anything like that... Noone is claiming to be his spouse. This isn't a family dispute or dispute with anyone else, it's the court saying only the person listed as spouse/next of kin on the death certificate can proceed with the probate process.

This is simply the error on the death certificate. I did tell the funeral director he was never legally married. I also mentioned I would be getting his medical records, I'm not sure why the funeral director didn't mention I would not be the one able to get them.

This is the first funeral I've had to handle. Is it pretty common for them to not ask for a marriage certificate or verify the spouse? When I called social security they not only request a marriage certificate they also ask to speak to the spouse to atleast verify things.

I'm pretty sure he was not married. A no record of marriage search could be done but the court says that would not be enough to prove anything. I think I will order it anyway. Interestingly enough I found a page from Michigan vital statistics that says all they require for that type of change is residential history and no marriage history... don't know why it's so hard in NJ.

I know I probably need an attorney but I did not plan on needing one for this... the burial cost me a bit and there's no other money involved besides trying to save/sell the house.

 

[justalayman]

This isn't a family dispute or dispute with anyone else, it's the court saying only the person listed as spouse/next of kin on the death certificate can proceed with the probate process.

this is from Camden county's website:

How is an administrator appointed when there is no will?
The Surrogate may grant letters of administration according to the order of priorities established by New Jersey Statutes. The law provides the first right to act to the surviving spouse. If there is no surviving spouse or if he/she does not want to be the administrator, the Surrogate may issue letters of administration to one or more of the remaining heirs. If the spouse and heirs do not claim the administration within 40 days after the death of an intestate decedent, the Surrogate may grant letters of administration to any fit person applying for letters. In cases where the individual applying for letters is not the person with the first priority, that person must file a renunciation from, or proof of notice to, any individual with a prior or equal right to letters.

from the County of Ocean:

3) Who has the right to be appointed when an individual dies without a Will?

The surviving spouse or domestic partner has the first right. However, any heir may be appointed assuming they obtain the appropriate renunciations from any other heir who has an equal or prior right to be appointed.

 

[plaided]

Thanks, it's a complicated situation. Like I said, I wish the funeral director was more clear and thorough about what was what. I don't remember if they showed me what would be put on the death certificate. since I was the only one there, the only one handling the burial...that should of set off bells to them that noone else was or would be around to handle my father's things. I assume funeral homes are familiar with probate, wills, next of kin laws.

Also not asking for proof like a marriage certificate, confirming things with the person they are listing as spouse.... That means you can find any joe schmo or plain jane that's about to kick the bucket and bury or cremate the person and claim to be their spouse on the death certificate.

I read funeral homes have lawyers on site, I wonder if I could ask the one that handled things if their lawyer could go to court with me and explain it was a mistake. The funeral director isn't really working with me on this. she did send in to vital statistics to have the death certificate changed but I don't think she told them they didn't ask for proof or confirm the spouse.



The person listed as spouse/ next of kin doesn't understand the renunciation forms. she doesn't understand she is losing everything if she doesn't go to the probate court. she does not know if she doesn't do something soon she won't have a roof over her head for much longer. she will say she wasn't married to the person though, so if anyone was in touch with the funeral home it was not this person.

so if a person could not be located, was senile or was in a coma the court would still hold them as executor/administrator. If the person listed as spouse on the death certificate was really legally next of kin I would feel sorry for her that the courts hold her accountable for things she doesn't fully understand and would take things away just like that.

While trying to have her sign papers would be a quick fix for the moment, I have to focus on my father was not legally married and I'm not getting what legally should go to me and it not being easy to change the death certificate so problems like this in the future don't arise.

 

[disneykid52]

Shhhhhhhh,,,,its a quiet title

 

[Dave1952]

It's not unusual for there to be confusion about probate. Look on-line for your County's Court of Surrogates. They should have a brochure or FAQ about probate. Sounds as if you'll need to follow directions, and become the administrator. Once you are administrator you can settle the estates affairs, go to probate and close the estate.
There are lawyers who specialize in this. If you're broke, check with legal aid.
Before you do anything though try to figure out what sort of money the estate has. There's little sense in taking on this job if the estate is broke. On the other hand, if the estate has money you may be paid for the funereal.
Sorry for your loss