My Inheritance Nightmare!

why so Jek?

There are some lawyers who favour the court room and others not ....

Also both client and lawyer need to be united on the points of law to be argued.

That comment applies to any legal battle whether it is bank guarantee, contract, divorce, probate etc. We have seen on this forum lawyers disagree on bank guarantee claims when no formal guarantee existed so in such a case would you engage a lawyer that said the case had no merit or the one that believed the case had merit? The lawyer engaged needs to be passionate on the point of law to be argued otherwise he/she is merely going through the motions.

I rarely advise court battles but it would appear Byork has for many years tried all forms of negotiation and it has not got him anywhere.

what course of action do you advise?

Faro,

I take it your specialised questions on Mastermind would be the same as those that Basil advised Sybil Fawlty to choose - stating the bleeding obvious!

Who in their right mind would ever consider hiring a lawyer who didn't agree with them and thought their case was rubbish?  And who in their right mind would reject advice from a specialist practising lawyer and instead spend shedloads of money chasing around trying to find some puppet that would agree with byork on a course of action recommended by some amateur on a forum who will lose nothing by his advice?

You asked what course of action I would advise.  But byork doesn't want advice that doesn't give him/her a positive financial outcome.  He/she only wants to hear good news - which you are supplying in abundance.  My advice is simple.  Stop spending money on property to which you do not have legal title.  Accept that you are not going to win your case.  Walk away.  Get on with your life.

Jek.  You make very good points.  Why consult a specialist lawyer if you are not going to hee and follow his or her advice.  Any ethical lawyer will tell you the unpalatable truth.

I also feel that where legal matters are concerned amateur "advice" can be downright dangerous. 

Byork must of course make up his or her own mind, consult a competent lawyer, and if the matter is a lost cause then as Jek says just walk away from the hassle...and the useless expense.

There is a lot of truth to be heard in that song "The Gambler".  One needs to know when to get up from the card table and walk away.

Patricia  

Jek

I don't know what your problem is but you have not really offered any helpful advice to Byork.

I would not say I am offering Byork good news. I have merely referred to Art 834 and expressed a personal view that children should benefit more than a brief 2nd marriage and especially where it appeared his father was separated at the time of his death.

We all know lawyers have different views and that's one of the reasons for going to court.

Byork already has a lawyer and I'm sensing if he has come on to this forum he is questioning his lawyer or whether it is time to consider a change of lawyer or strategy change?

There are many lawyers who thrive on procedural matters but not so in other areas. Also there are many examples in Spain of lawyers taking on cases outside their area of expertise and failing clients.

Hence why I believe Byork would be well advised to discuss this matter with law firms specialising in contentious probate matters.

Campana - lawyers in Spain will always take the case for the fee but they might lack passion or indeed expert knowledge. Also I have seen cases won only becuase the other side prepared badly.

Quote from original post:

"My lawyer informed me that it would probably take another year or two to go through the courts, approximately 40,000 euros in expenses and no guarantee of how the court would assess the assets. As you can imagine, this does not appeal at all.

My brothers think we should just sit on our hands and do nothing. "

This has been going on for ten years and byork still isn't any closer to a satisfactory outcome.  Doesn't that tell you anything?  And if it's 40k plus anyway before you factor in the "law firms specialising in contentious probate matters" as advised by Faro - who are not noted for being cheap - you're not going to have anything left even if you do win.  byork - listen to your brothers and not some amateur on a forum.  Walk away and get on with your life.

And Faro, I have offered extremely helpful advice to byork.  I'm not the one trying to send him off on some wild goose chase.  This might be the land of Cervantes but you'd have byork tilting at some extremely expensive windmills!

Perhaps further clarification is needed. To legally walk away, we would have to go through a process of renouncing our rights as "legitimos" before the court. Because my father was a Spanish citizen at the time of his death, had no will and was married under a regime of separation of goods (properties in his and her names are considered "privado" and not "granancial" or common to the marriage), the property goes to the "legitimos" (bloodline heirs). Without an offical act of renouncing those rights, we are responsible for taxes and maintenance of those properties.

Under these circumstances, the widow has usofructo rights. In other words, she cannot be thrown out of her home (what is assumed to be the marital home) and has the right to reside there for the rest of her life. She is under usofructo required to pay taxes/rent while enjoying the use of said property but any major maintenance repairs are the responsibilty of the owners of the property (los legitimos).

She has 3 options with her usofructo rights: exercise them (including paying rent and taxes); take the monetary value of her right after liquidating all assets; or use the monetary value of her rights and apply it against the purchase of her home. Through years of on and off-again negotiations, she indicated that she wanted to monetise her usofructo rights to buy the Madrid property. We were fine with that.

That's when she started a series of stalling tactics everytime we were ready to sign an agreement last year. Our legal choices are to continue attempts at finalizing an agreement, go to court or renounce our rights to the estate. I'm just trying to figure out what to advise our lawyer as next steps while reconciling difference of opinions among siblings.

Sorry, Faro, but I know many lawyers in Spain (and I have lived in this country most of my life and for a variety of reasons I am very very familiar with lawyers in Spain) who do NOT take on cases just for the fees.  There may be some or many who do, but I know of those who don't.  Do not generalise, please.

No one is clairvoyant, and no lawyer is going to tell a client " I am going to win this case".  Sure, you are stating the obvious when you say the other side may be badly prepared.  This may or may not be the case.   Fortune-telling may be great fun but until actually in court you can"t tell in advance how prepared or uprepared the other side is. 

Again, it is up to Byork to decide on the best course of action, but I would suggest s/he he listens to expert advice, and that s/he seeks out a lawyer with expertise in this particular field. 

Byork:  all the information you are telling us here is something I hope you are printing out or writing down so that you can discuss it with your lawyer.  We can certainly offer you moral support in yur efforts, andencouragement, but that is as far as it goes.

All the best

Patricia  

I certainly would not presume to advise byork, or anyone else on legal matters, as you are doing.  Are you a lawyer specialising in probate matters?  Are you a lawyer anyhow?  If so maybe you would like to take on Byork"s case for him/her.

I should let you all know that I am a woman to save you time.

campana, the lawyer I engaged has extensive probate experience. I trust him and his advice. I'll admit that we do have to deal with some degree of language barriers since my Spanish vocabulary is not as extensive as it should be but at least his English skills are such that I can correspond with him by e-mail in English.

I would like to thank all of you. This thread has proven invaluable and I am going to use lots of what was expressed here to discuss our next steps strategy.

I am glad to hear, Byork,  that you have sought a lawyer with extensive probate experience. Most importantly you trust him and his advice.  I truly do wish you a good outcome to this rather unhappy state of affairs, and hope that matters can finally be put to rest.

All the best

Patricia

Byork

Sometimes in probate matters an acta de conciliacion is used.

Basically it's applying to the court for them to mediate in a dispute and attempt to reslove the matter without trial.

I believe it's covered by Art 460-463 LEC 1881.

Might be worth discussing with your lawyer if it would be of any assistance with your dispute?

Thanks campana and Faro!

I've made my notes and will be crafting a detailed note for my lawyer. Hopefully he will come up with some advice that my brothers and I will agree with. (Some of my brothers are even more stubborn than I am.)