Massachusetts Probate Confusion

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Latest post Fri, Mar 31 2017 10:39 AM by Drew. 14 replies.
  • Wed, Mar 29 2017 7:55 PM

    • Mfrye21
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    Massachusetts Probate Confusion

    This is a somewhat convoluted scenario/question, so I apologize in advance. 

    My wife died without a will in 2009 owning two properties (one worth approx. $400,000 and one worth approx $160,000). As of 2015, I've been appointed the Personal Representative of her estate and the only heirs-at-law are me and her mother, who has since deceased (2015). When her mother passed she left a will that left everything to her granddaughter. 

    Now, there was some pretty serious litigation between myself and the mother and my wife's sister. So much so that we found it necessary to sue the mother's estate. In order to do this, we attempted to open her estate as a creditor so we had an entity to serve. My wife's sister objected and showed up with a will at the hearing where the judge decided to appoint a neutral 3rd party to be the personal rep of mother's estate. However, the judge entered an order on the wrong decree and accidentally appointed myself as the personal rep of the estate. I rec'd an appointment as Personal rep of this estate, but that was clearly a mistake as there is an objection on file. 

    Since the confusion occurred in probate court, the litigation between myself and the wife's sister and granddaughter has resulted in a stipulation entered into in a different court. The stipulation had a clause stating "granddaughter waives any and all claims to the following properties: (i) wife prop 1 (ii) wife prop 2." 

    Now, I am trying to sell the two properties of my wife's estate. Since both my wife's mother and I should receive shares of these properties under Massachusetts law, how do I proceed given that granddaughter waived her rights to the properties? 

  • Thu, Mar 30 2017 10:37 AM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    Laymans view

    1. UNless a timely objection was raised to your appointment as PR, the appointment is as it is .  Stop ASsuming or commenting otherwise. 

    2. WHat share must be delivered to wife's sister ..and  in $ or in % of ownership...generally PR can sell and deliver $ but be sure about this one

    3 As a practical matter it may depend a lot on what the title company wants to insure buyer/lender ...ask there ..

    4 I'd be real,careful as to sgning brokerage contract only as PR for estate

    5. Ask the attorney retained to assist PR administer estate ... 

     

     

     



  • Thu, Mar 30 2017 12:16 PM In reply to

    Re: Massachusetts Probate Confusion

    Mfrye21:
    When her mother passed she left a will that left everything to her granddaughter.

    I assume this granddaughter is not your wife's daughter.

     

    Mfrye21:
    the litigation between myself and the wife's sister and granddaughter has resulted in a stipulation entered into in a different court. The stipulation had a clause stating "granddaughter waives any and all claims to the following properties: (i) wife prop 1 (ii) wife prop 2."

    That's not really clear.  For starters, is the granddaughter an adult or a minor?  If she's an adult, why was your wife's sister involved at all?

    Unless there are facts you haven't told us, the granddaughter waiving "any and all claims to the . . . properties" is meaningless because the granddaughter never had any valid claims to the properties.  RATHER, the properties are owned by your wife's estate.  Your wife's mother's estate is a beneficiary of your wife's estate, and the granddaughter is a beneficiary of your wife's mother's estate.

    With that said, did the granddaughter only waive claims to the properties?  Did she also waive any claim against your wife's estate?  Even more importantly, has the personal representative of your wife's mother's estate (I'm assuming the error in appointing you was eventually rectified) waived the mother's estate's right to receive proceeds from your wife's estate?

     

    Mfrye21:
    Now, I am trying to sell the two properties of my wife's estate. Since both my wife's mother and I should receive shares of these properties under Massachusetts law, how do I proceed given that granddaughter waived her rights to the properties?

    Here's the most important question I will ask in this response:  What does your attorney say?  If your answer to that question is that you don't have one, then you need to retain one because your question is not one for which you should be relying on anonymous strangers on the internet.  With that said, the answer to your question depends to some degree on how you answer the several questions I asked above.  However, if you are the court-appointed PR of your wife's estate, you should have the authority to liquidate estate assets.

  • Thu, Mar 30 2017 3:24 PM In reply to

    • Mfrye21
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    Re: Massachusetts Probate Confusion

    Granddaughter is wife's sister's daughter. 

    Granddaughter is an adult, but the litigation was unrelated to the probate. The wife's sister used a fake will/POA to do some bad things once wife died, which is the main issue behind the litigation. 

    The granddaughter only waived claims to the properties. The Personal Representative situation of wife's mother's estate has not yet been rectified. 

    So essentially, I need to rectify the personal representative situation of wife's mother's estate and have that personal representative waive the right to receive proceeds from wife's estate? 

  • Thu, Mar 30 2017 4:05 PM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    Well you have a pile of loose ends ...and as PR per the record to date, you might be smart to engage counsel to help you are PR out .

    No, this fake will and fake POA  and after death games may well have a lot to do with estate and or estates abiity to recover or dock the share of Sis 

    You as PR may be entitled to extra fee for all this extra work, plus estate attorney costs etc.

    In wife was actually intestate then Sis's child may not even have been in line --so her release was merely to confirm same as a practical matter.

    Generally speaking the PR has duty to get this sold and distributed --and pay estate bills up front from the pile.

    If you hold an appointment tat has not been challanged after being granted--why seek problems --unless estate counsel suggests otherwise .

    Obviously Sis doesnt see things your way--but you may need to remind her that 1/'2 all costs come out of her share , ahead of her share in effect...IF she is entitled to 1/2 under intestacy ..

    Not clear....is fake will out of equation? Why under your states intestacy is Sis entitled to a share ? 

    In a business sense it might make sense to sell assets and put the funds in a safe interest bearing account in estate name pending distribution of proceeds...an empty houses (s) can become an insurance and maintenance nightmare..hopefully they are not being occupied by Sis as a tenant of estate !

    PR needs some reliable legal backup....unwise to do this one on your own  



  • Thu, Mar 30 2017 4:24 PM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    Whoops I missed the part about wifes  mother was still alive back when... ...her granddaughter did not waive her claim to GMs property under GMs will ...and GM was in line for  whatever MA las says she is to get and her place is preserved...I thnk , after ALL expenses and fees allowed, you as spouse get 200,000 and 3/4 of rest, GM gets 1/4 of rest  

    The simple road seems to be as PR you liquidate , pay all the bills and fees , divide up the pot as per law--and deliver GMs share to her PR and let that person sort it out . 

    IF GM owes Wifes  estate something due to money GM took '''how to address that is best reviewed with your counsel ..there may be more than one way to play poker with the hand you hold as PR. 



  • Thu, Mar 30 2017 4:26 PM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    At least as you post it, wifes sister is not in either line to get paid...? 



  • Thu, Mar 30 2017 4:51 PM In reply to

    Re: Massachusetts Probate Confusion

    Mfrye21:

    Granddaughter is an adult. . . . 

    The granddaughter only waived claims to the properties. The Personal Representative situation of wife's mother's estate has not yet been rectified.

    Then the waiver you described is virtually meaningless.  As I mentioned before, the wife's mother's estate is a beneficiary of the wife's estate.  The granddaughter has no direct interest in your wife's estate.

     

    Mfrye21:
    So essentially, I need to rectify the personal representative situation of wife's mother's estate and have that personal representative waive the right to receive proceeds from wife's estate?

    Well...as things stand, you're the PR of both your wife's estate and her mother's estate.  In your capacity as PR of the mother's estate, you cannot properly waive the mother's estate's rights as a beneficiary of your wife's estate.  Therefore, if that's what you want to happen, you will need to resign as PR of the mother's estate and someone else will need to be appointed.  Then that person will decide if waiving the mother's estate's rights as a beneficiary of your wife's estate is in the best interests of the mother's estate.  Since the granddaughter is the sole beneficiary of the mother's estate, she would be a logical choice to takeover as PR.

  • Thu, Mar 30 2017 6:31 PM In reply to

    • Mfrye21
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    Re: Massachusetts Probate Confusion

    ca19lawyer2:
    In your capacity as PR of the mother's estate, you cannot properly waive the mother's estate's rights as a beneficiary of your wife's estate.

    Is the reason behind this because such an action would be a breach of my fiduciary duty as PR? 

    This is quite shocking to me as the litigation resulted in a settlement with the intent of granting me full ownership of the two properties (amongst other things). Now I'm wondering if the attorney that drafted this settlement knew anything about probate law.. 

     

  • Thu, Mar 30 2017 6:34 PM In reply to

    • Mfrye21
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    Re: Massachusetts Probate Confusion

    Drew:
    The simple road seems to be as PR you liquidate , pay all the bills and fees , divide up the pot as per law--and deliver GMs share to her PR and let that person sort it out . 

    The problem here is that I would like to keep one property as my personal residence so I'd rather not liquidate it. The other property I tried to obtain a license to sell, but it has been over 1 year and apparently that's the deadline in Massachusetts. 

  • Fri, Mar 31 2017 5:14 AM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    Your post is a bit unclear ..if you are PR for your wife's estate ...so be it...you act in that capacity for that? 

    If you are also PR for MILs estate ..you act separately for that....and if there is a role conflict on some specific point you get court blessing or surrender that role per the rules in place ...but be sure you get paid fees and costs by MILs estate thru the turnover date  otherwise you may have a devil to collect later.

    IF you intend to buy in one asset I would take pains to well docuement that the price you use is FMV in terms of math you use to have proceeds in pot for MIL portion of pot. 

    You may have to do some added steps to get around a distribution to yourself wo a distribution to MIL s estate at same time ...IF it triggers sums over $200,000 which it seems it will.....or if law permits early partial distributions ..so do it to her side as well.

    the math of counsel at say $300 hr even as an estate espense is really 3/4'out of your side of wife's pot ..

    so in a practical sense it makes sense to have a lump sum settlement agreement with MILs estate instead of long legal process....but it's a bit of poker hand as well. And as PR for wife, you best have a clean court order as to this settlement otherwise title insurance issues may drive you nuts. 

     



  • Fri, Mar 31 2017 5:19 AM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    IF it takes $2500 of extra estate costs to sell a property...so be it. 



  • Fri, Mar 31 2017 5:25 AM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    If you mean to recertify a letter...the fee for that is pretty small , just stick to the point . 



  • Fri, Mar 31 2017 10:27 AM In reply to

    Re: Massachusetts Probate Confusion

    Mfrye21:

    ca19lawyer2:
    In your capacity as PR of the mother's estate, you cannot properly waive the mother's estate's rights as a beneficiary of your wife's estate.

    Is the reason behind this because such an action would be a breach of my fiduciary duty as PR?

    Yes.  A waiver by you as PR of the mother's estate would be an act that benefits you personally at the expense of the beneficiary of the mother's estate.

     

    Mfrye21:
    This is quite shocking to me as the litigation resulted in a settlement with the intent of granting me full ownership of the two properties (amongst other things). Now I'm wondering if the attorney that drafted this settlement knew anything about probate law.

    Given the circumstances, not having an attorney advise you in your capacity as PR of both estates would be extremely unwise.

  • Fri, Mar 31 2017 10:39 AM In reply to

    • Drew
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    Re: Massachusetts Probate Confusion

    Taking sloppy language even further out of context, in a sense the GD  has waived all claims to RE and if we take that further to mean proceeds from same..she is line to get zero....Absent some other assets in MILS estate

    I doubt what she executed is a proper renunciation but it's a poker card to consider.. 

    If SIL is out of both loops why is she even in any discussions . 

    Rather likely PR has power to negioate claims for or against estate unwise to negioate with your self....but you can get pretty close ...and have the solution blessed by whatever benificiary of MILs estate is left and have Court enter it as blessed...courts favor folks who come to agree. 

    WIld guess MILs estate tops out getting about a 85k slice of wife's .? 

    How much did MIL take from your wife AFTER she died ..which time line would render any POA void . ? 

    .

     



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