How Can I Get Back Money For Burial Expenses if the Heirs Won't File to Probate the Estate?

Full question:

i would llike to replace a lien on the property of a deceased family member estate. His immediate familly (estrange children) refuses to probate his estate or become involve with his estate. My lien is for the money I used to ensure a proper burial was given I live in Georgia and the decease property is in Maryland.Need to do lien before property goes into foreclosure. Due to lack of family settling the decease affairs. Property is located in Maryland. I am a resident of Georgia.

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Georgia

Answer:

In order to get a lien on real property unrelated to work done on the property, a judgment lien is typically the mthod of creating the lien. Such a lien is created after a judgment in court is won and remains unpaid. You may need to show that you had a contract with the owner of the property to pay the burial expenses in order to do so. If your agreement to pay the expenses was with someone other than an owner of the property, a judgment would need to be obtained against that person and then if it wasn't paid, a lien could be placed on the property that person owns. It may be possible for you to file a petition to probate the estate as a foreign personal representative if there was no executor appointed in the will. Typically, the funeral expenses are paid out of the proceeds of the estate in probate. I suggest you contact a local attorney who can review all the facts and documents involved.

To create a valid lien, it is essential that the party claiming a lien should have the absolute property or ownership of the thing or, at least, a right to vest it; that the party claiming the lien should have an actual or constructive, possession, with the assent of the party against whom the claim is made; that the lien should arise upon an agreement, express or implied and not be for a limited or specific purpose that contradicts the express terms or the clear, intent of the contract. In certain circumstances, the lien holder may foreclose on the property if the debt is not paid in full. Liens can generally be removed by the payment of the amount owed. This payment can occur at any time up to and including the stage at which the closing documents for the sale of the property are signed.

There are several types of liens, all of which could cloud the title and prevent the seller from conveying marketable title to the buyer. A judgment lien is created when a court grants a creditor an interest in the debtor's property, based upon a court judgment. A judgment lien can be filed if an actual judgment in a lawsuit is obtained from a court. Such cases include failure to pay a debt, including credit cards, bank loans, or deficiency judgments on repossessed vehicles. In some circumstances, judgments can be enforced by sale of property until the amount due is satisfied. A plaintiff who obtains a monetary judgment is termed a "judgment creditor." The defendant becomes a "judgment debtor." If the judgment remains unpaid, the judgment debtor may request that the court place a lien on the judgment debtor's property to secure payment of the claim to the injured party. After the judgment creditor places a lien upon the attached property, the next step in the collection process is to conduct a sale of the attached property to satisfy the judgment debt.

The court may also declare that a constructive trust exists, which is essentially a legal fiction designed to avoid injustice and prevent giving an unfair advantage to one of the parties. This may be based on the contributions made by one partner to the property of the other. The court typically requires a finding of unjust enrichment before it will impose a constructive trust. Each case is decided on its own facts, taking all circumstances into consideration.

The doctrine of unjust enrichment is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. The general rule is that a payment of money under a mistake of fact may be recovered provided that such payment will not prejudice the payee. It is considered unjust enrichment to permit a recipient to retain money paid because of a mistake, unless the circumstances are such that it would be inequitable to require its return. This applies even if the mistake is one on one side (unilateral) and a consequence of the payors negligence, or that the payee acted in good faith. "A person who has conferred a benefit on another by mistake is not precluded from maintaining an action for restitution by the fact that the mistake was due to his lack of care." (Restatement of Restitution § 59.) Equity, which is based on notions of fairness, often allows a person who pays money to another under the mistaken belief a valid contract exists to recover that money when the contract is subsequently canceled for fraud or mistake and the rights of innocent parties have not intervened. (Restatement of Restitution §§ 17, 28.)

A constructive trust is one that arises by operation of law against one who, by fraud, wrongdoing, or any other unconscionable conduct, either has obtained or holds legal right to property which he ought not to, in good conscience, keep and enjoy. A constructive trust is an appropriate remedy against unjust enrichment. Unjust enrichment is present in nearly every case where a constructive trust is imposed. However, the court's creation of a constructive trust is not necessarily dependent on a finding that the person whose property is subjected to it has acted wrongly, but may rest as well upon a finding of unjust enrichment arising from other circumstances that "render it inequitable for the party holding the title to retain it." (Starleper v. Hamilton 106 Md.App. 632, 666 A.2d 867 (1995).)

The basis for creating a constructive trust is to prevent unjust enrichment. (Restatement of Restitution § 160, comment c.) "Where a person wrongfully disposes of property of another knowing that the disposition is wrongful and acquires in exchange other property, the other is entitled to enforce a constructive trust of the property so acquired." If the property so acquired is or becomes more valuable than the property used in acquiring it, the profit thus made by the wrongdoer cannot be retained by him; the person whose property was used in making the profit is entitled to it." (Restatement Restitution § 202.) When property is given or devised to a defendant in breach of a donor's or testator's contract with a plaintiff, equity will impose a constructive trust upon that property being held by another even though (1) the transfer is not the result of breach of a fiduciary duty or an actual or constructive fraud practiced upon the plaintiff, and (2) the donee or devisee had no knowledge of the wrongdoing or breach of contract. (Jones v. Harrison , 250 Va. 64, 458 S.E.2d 766 (1995 ).)

A person who has been unjustly enriched at the expense of another may be required to make restitution to the other. Despite not having a contractual agreement, a trial court may require an individual to make restitution for unjust enrichment if he has received a benefit which would be unconscionable to retain. A person may be deemed to be unjustly enriched if he (or she) has received a benefit, and keeping it would create injustice.

Any claim you may have relating to payment may be governed by contract law. The terms of your contract with the other parties will generally determine your rights and obligations as well as those of the other parties. You should carefully review the terms of the contracts involved to determine your rights and obligations in regard to payments and ownership of the truck. If you wish to use the legal system to resolve your dispute, you may want to review the following general information regarding contract law and breach of contract actions:

Contracts are agreements that are legally enforceable. A contract is an agreement between two parties that creates an obligation to do or refrain from doing a particular thing. The purpose of a contract is to establish the terms of the agreement by which the parties have fixed their rights and duties. An oral contract is an agreement made with spoken words and either no writing or only partially written. An oral contract may generally be enforced the same as a written agreement. However, it is much more difficult with an oral contract to prove its existence or the terms. Oral contracts also usually have a shorter time period within which a person seeking to enforce their contract right must sue. A written contract generally provides a longer time to sue than for breach of an oral contract. Contracts are mainly governed by state statutory and common (judge-made) law and private law. Private law generally refers to the terms of the agreement between the parties, as parties have freedom to override many state law requirements regarding formalities of contracts. Each state has developed its own common law of contracts, which consists of a body of jurisprudence developed over time by trial and appellate courts on a case-by-case basis.

An unjustifiable failure to perform all or some part of a contractual duty is a breach of contract. A legal action for breach of contract arises when at least one party's performance does not live up to the terms of the contract and causes the other party to suffer economic damage or other types of measurable injury. A lawsuit for breach of contract is a civil action and the remedies awarded are designed to place the injured party in the position they would be in if not for the breach. Remedies for contractual breaches are not designed to punish the breaching party. The five basic remedies for breach of contract include the following: money damages, restitution, rescission, reformation, and specific performance. A money damage award includes a sum of money that is given as compensation for financial losses caused by a breach of contract. Parties injured by a breach are entitled to the benefit of the bargain they entered, or the net gain that would have accrued but for the breach. The type of breach governs the extent of damages that may be recovered.

Restitution is a remedy designed to restore the injured party to the position occupied prior to the formation of the contract. Parties seeking restitution may not request to be compensated for lost profits or other earnings caused by a breach. Instead, restitution aims at returning to the plaintiff any money or property given to the defendant under the contract. Plaintiffs typically seek restitution when contracts they have entered are voided by courts due to a defendant's incompetence or incapacity.

Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.

Specific performance is an equitable remedy that compels one party to perform, as nearly as practicable, his or her duties specified by the contract. Specific performance is available only when money damages are inadequate to compensate the plaintiff for the breach.

Promissory estoppel is a term used in contract law that applies where, although there may not otherwise be an enforceable contract, because one party has relied on the promise of the other, it would be unfair not to enforce the agreement. Promissory estoppel arises from a promise which the promisor should reasonably expect to induce action or forebearance of a definite and substantial character on the part of the promisee and which does induce such action or forebearance in binding if injustice can be avoided only by enforcement of the promise. Detrimental reliance is a term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel. Promissory estoppel may apply when a promise was made; reliance on the promise was reasonable or foreseeable; there was actual and reasonable reliance on the promise; the reliance was detrimental; and injustice can only be prevented by enforcing the promise. Detrimental reliance must be shown to involve reliance that is reasonable, which is a determination made on an individual case-by-case basis, taking all factors into consideration. Detrimental means that some type of harm is suffered.

Reasonable reliance is usually referred to as a theory of recovery in contract law. It was what a prudent person might believe and act upon based on something told by another. Sometimes a person acts in reliance on the promise of a profit or other benefit, only to learn that the statements or promises were either incorrect or were exaggerated. The one who acted to their detriment in reasonable reliance may recover damages for the costs of his/her actions or demand performance. Reasonable reliance connotes the use of the standard of an ordinary and average person.

Please see the following MD statutes:

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§ 5-205 EST. & TRUSTS Request for grant of letters or
qualification of executors in petition for probate.

(a) Additional request. — The petition shall also contain a
request for either of the acts provided in this section.

(b) Grant of letters. — It shall request the grant of letters to
the petitioner, if the petition is filed by all of the persons named as
executors in the will of a testate decedent, or if the persons in classes
higher in the order of priority set forth in § 5-104
of those entitled to administer the estate of an intestate decedent join
in the petition or consent in writing to the grant. The joinder or
consent of a person who has renounced his right to administer is not
necessary.

(c) Order for qualification. — It shall request an order
requiring persons named as executors or entitled to administration to
appear and qualify for appropriate letters.

§ 5-502 EST. & TRUSTS Powers of foreign personal representative;
transfer of property by foreign personal representative.

(a) In general. — Any foreign personal representative may
exercise in Maryland all powers of his office, and may sue and be sued in
Maryland, subject to any statute or rule relating to nonresidents.

(b) Transfer of real property. — A foreign personal
representative has the same power to sell, mortgage, lease, convey, or
otherwise transfer or assign real property or an interest in the property
which is located in Maryland as a Maryland personal representative has
with respect to real property and an interest in the property.

(c) Same — Failure to comply with requirements of appointing
jurisdiction. — Title to real property or an interest in the
property located in Maryland sold, mortgaged, leased, conveyed, or
otherwise transferred or assigned by a foreign personal representative
before or after July 1, 1981, may not be defective solely by reason of
the failure of the foreign personal representative to comply with
requirements of the jurisdiction in which the representative was
appointed concerning the sale, mortgage, lease, conveyance, transfer, or
assignment of the property or an interest in the property.

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§ 5-204 EST. & TRUSTS Requests for certain acts, orders, or
findings in petition for probate.

(a) Specific items. — The petition shall contain as appropriate a
request for one or more of the acts stated in this section.

(b) Probate of will. — It shall request the probate or recording
of a will exhibited with the petition or deposited with the register
pursuant to Title 4, Subtitle 2.

(c) Appearance of witnesses. — It shall request an order
directing witnesses to an alleged will to appear and give testimony
regarding its execution.

(d) Order for delivery of will. — It shall request an order
requiring a person alleged to have custody of a will to deliver it to the
court.

(e) Lost or destroyed will. — It shall request an order directing
all interested persons to show cause why the provisions of a lost or
destroyed will should not be admitted to probate as expressed in the
petition.

(f) Intestacy. — It shall request a finding that the decedent
died intestate.

(g) Other relief. — It shall request other relief that the
petitioner may consider appropriate.

§ 5-301 EST. & TRUSTS Nature of administrative probate.

Administrative probate is a proceeding instituted by the filing of a
petition for probate by an interested person before the register for the
probate of a will or a determination of the intestacy of the decedent, and
for the appointment of a personal representative. Subject to the
provisions of § 5-402, the proceeding may be
conducted without prior notice, and is final, to the extent provided in
§ 5-304, subject to the right of an interested
person to require judicial probate as provided in Subtitle 4 of this
title.

§ 5-302 EST. & TRUSTS Action on request for administrative
probate.

Upon a request for administrative probate contained in a petition for
probate, the register may admit a will to probate, and shall appoint one
or more personal representatives on the basis of the allegations
contained in the petition. The register may require additional verified
proof, and it shall be filed in the proceeding.

§ 5-401 EST. & TRUSTS Nature of judicial probate.

Judicial probate is a proceeding instituted by the filing of a petition
for probate by an interested person, or creditor, with the court for the
probate of a will or a determination of the intestacy of the decedent, and
for the appointment of a personal representative. The proceeding is
conducted after notice as provided in § 5-403, and
is final except as provided in § 5-406. If no
petition is filed within a reasonable time the register may file it with
the approval of the court.

§ 5-402 EST. & TRUSTS When judicial probate is obligatory;
requests, conditions for judicial probate.

A proceeding for judicial probate shall be instituted at any time
before administrative probate or within the period after administrative
probate provided by § 5-304.

(a) At the request of an interested person;

(b) By a creditor in the event that there has been no administrative
probate;

(c) If it appears to the court or the register that the petition for
administrative probate is materially incomplete or incorrect in any
respect;

(d) If the will has been torn, mutilated, burned in part, or marked in
a way as to make a significant change in the meaning of the will;

(e) If it is alleged that a will is lost or destroyed.

§ 5-203 EST. & TRUSTS Election of administrative or judicial
probate.

The petition shall indicate whether the petitioner elects
administrative or judicial probate.

§ 8-106 EST. & TRUSTS Payment of funeral expenses of decedent.

(a) Payment. — Subject to the priorities contained
in § 8-105 of this subtitle, the personal representative
shall pay the funeral expenses of the decedent within
six months of the first appointment of a personal
representative.

(b) Allowance. — Funeral expenses shall be
allowed in the discretion of the court according to the
condition and circumstances of the decedent. In no event may
the allowance exceed $10,000 for an estate administered under
Title 5, Subtitle 3 or Subtitle 4 of this article, or $5,000
for a small estate administered under Title 5, Subtitle 6 of
this article unless the estate of the decedent is solvent and
a special order of court has been obtained. If the estate is
solvent and the will expressly empowers the personal
representative to pay the expenses without an order of court,
an allowance by the court is not required.

(c) Petition of creditor. — If the funeral expenses
are not paid within six months, the creditor may petition the
court to require the personal representative to show cause
why he should not be compelled to make the payment. If the
court finds that the claim is valid, it shall fix the amount
due and shall order the personal representative to make
payment within ten days after the order is served upon him.
If the personal representative does not have sufficient
funds, the claimant may at a later date resubmit his petition
when the personal representative has sufficient funds.