Frequently-asked Questions

Probate - Right to Enforce Will?


I was a close friend of a woman who just passed away.

I have nothing to gain from her will as I am not an heir, blood relative or named beneficiary. Before she died, she asked me to keep watch on her estate to be sure her wishes were followed as stated in her will and codicil.

Do I have any right to petition the court regarding the Executor’s lack of due diligence and following the terms of the will?

It depends. If you were given such a power in the will, you may have standing. In the alternative, if there is a beneficiary whom you are trying to protect, they need to assert their own rights. If it is a charity, then you could contact the Attorney General's office.

It is generally a good idea to consult with an attorney if the beneficiary is not getting appropriate action from the executor.


Real Estate - Buyer with cold feet


A buyer offered to purchase our property and put down a thousand dollar deposit to bind the offer. The offer was initially rejected based on price. The offer was revised with the new price, accepted signed and initialed by all parties. The inspection resulted in certain issues. These issues were discussed and accommodations agreed to. Our respective attorneys were contacted to do the P&S agreement. One day later the buyers attorney contacted my attorney to tell them that the buyer had decided to back out. Can the buyers back out, what recourse do I have, and should they get their deposit back. The P&S deadline is tomorrow at 12 p.m.

Your attorney will probably recommend that you release the deposit in return for a termination of the accepted Offer to Purchase. You don't want the property "tied up" with this contract while other potential bidders are out there, and the "earnest money" deposit is not worth your time and money to fight over, in general. You could end up losing more than $1,000 in a reduced purchase price just to chase this.

At the end of the day, you want to sell your property without hassle, not be tied up in court.


Real Estate - Problem with Real Estate Broker


My son listed his house for sale in Massachusetts. His real estate agent lowered the asking price without his knowledge by 50,000 dollars. Now he says the real estate agent has harmed him because he can never go back up again because people have seen the lower price. What can he do about it?

In general, actual damage needs to be shown in order to have a viable cause of action. If a Seller can re-list at a higher price, but hasn't done so, it would be difficult to prove damages. Likewise, the length of time that a property was listed at a higher price might influence whether damages could be shown, and whether there was any discussion of the need to lower the price, etcetera.

It is always a good idea to obtain legal representation when selling or buying a valuable asset such as a house. The attorney's fee is not dependent upon closing the transaction, and the attorney's interest is in making sure that the client is protected. Because of the compensation arrangement for brokers, there is implicit pressure in "closing the deal." Sometimes the client's interests do not align with a particular deal, and the attorney is there to advise the client of the risks.

That said, he has some grounds for either obtaining concessions from the real estate agent, or discharging them for cause.


Probate - Illiquid Estate and Credit Card Debts


Credit Card Debt of Deceased Person My father passed away recently and his only asset in the estate is his house which is valued at approximately $300K with no mortgage. My mothe passed away previously. He has two credit cards with each having approximately $3K balance for a total of $6K more or less. I have heard over and over that the estate will have to pay the debt but if a credit card company has a balance of $3K can they force the sale of the house? To further complicate the matter, my grandmother still resides in the house and has a life estate so wouldn't that block the credit card company from forcing a sale? It seems like a lot of work for a credit card company to get $3K.

Because probate laws with respect to illiquid or insolvent estates can be quite technical, you are well-advised to contact an experienced probate attorney.

There are steps which can be taken to "force the hand" of any creditors, in some cases resulting in offers to settle for much less than the claimed amount. In addition, there are short statutes of limitations and bar dates which have to be met by creditors after notice in the context of probate of an estate.

As other answers have mentioned, the exact outcome will depend upon specific facts of a given case, including whether a life estate arises from an inter vivos transfer (gift or sale during the lifetime of the original owner) or by specific devise in a will. While a "remainder interest" does not give anyone right to present possession during the lifetime of a life tenant, (subject to certain exceptions), that interest can be affected by how it was created.

An experienced probate attorney can help you sort out the issues.


Probate - License to Sell Question


Is a License to Sell necessary if there is an Adminstratrix appointed?

Generally, title to real estate "passes" to the intestate heirs (or devisees under the will) at the time of death, subject to a right in the fiduciary to reach the value of the real estate under certain circumstances (e.g. debts and estate expenses exceed other assets).

To the extent that all the beneficiaries and the fiduciary (e.g., administratrix) join in a deed, there is less of an issue from the buyer's perspective. However, a fiduciary is often protected by the nature of a License to Sell from later claims by creditors or beneficiaries that a sufficient price was not obtained for the real estate.


Probate, Trusts, Wills & Estates - Notice to trust beneficiaries


My dad’s will left money to a trust which includes several charities as beneficiaries. When do I notify the charities that they are beneficiaries? Is there a rule about this?

If you are dealing with a pourover will and trust with charitable beneficiaries, it would be a good idea to speak with a probate attorney. Generally, there are obligations to give notice to beneficiaries, including charitable beneficiaries, along with the Attorney General for bequests to charities at the time the "Order of Notice" issues.If you plan to "go it alone," you should talk to the probate clerk at the probate court where the will will be filed (which depends upon where the decedent was living (domiciled) at the time of death.)Attorney's fees and accountants fees are expenses of the estate and deductible from assets before payment of bequests, and wise counsel can protect an executor or trustee from misteps resulting in personal liability.


Business Law - Non compete for subcontractor


I’ve been asked to sign a noncompete agreement as a contractor for another company that is doing work for the state. Will this prevent me from working for any department or agency of the state, or just the particular agency I’m slated to work for?

Two aspects to consider: (as a general proposition, since each case turns on specific facts that probably shouldn't be published to a public forum): a.) specify in the contract what division of a company or state body to which it should apply; b.) the "employer" (general contractor) is limited in the scope of what they can reasonably require in a noncompete to protectable interests- it can't be used as a general restraint of trade - they can protect their confidential information and good will, but venturing beyond puts the agreement at risk of being unenforceable. With a true independent contractor relationship, there would be more leeway with the gc (because the relationship isn't quite the same - an IC can go elsewhere for work- treated more as an equal), so a more restrictive agreement might pass muster.


Probate - When can I receive my inheritance?


How long will it take me to get my inheritance after someone dies?

It depends upon the nature of the gift, and whether it is a specific bequest or a portion of the residue (i.e., part of what's "left over" after all specific gifts, or a specific gift of money or property.)

Generally, if there are sufficient assets in the estate, specific gifts are paid first, and distributions of the residue may be made in phases.

If there are any pending suits or claims, or an estate tax return which has not been finally accepted, the executor may hold the estate open longer, and hold a reserve against additional taxes until the estate tax return is accepted.

If you haven’t asked the executor when you might receive the final amount, it might make sense for you to do so. Ultimately, the executor will likely need to file his accounts, showing final distribution of all assets of the estate after payment of all debts, administration expenses, taxes, etcetera. If he is unresponsive in regard to your distribution, you can demand that he file his accounts.

If you would like assistance, please feel free to contact my office to arrange a conference.


Probate - Can a trust avoid probate and claims against the estate?


A parent had his assets transferred into a trust. We thought this would allow us to avoid probate and paying any claims of creditors. Now the attorney tells us that he has to wait until a year passes before making any distributions. Doesn’t the trust avoid probate and claims against the estate?

If you feel uneasy about the information received from the attorney/trustee, you certainly can engage your own attorney. However, it might make sense to simply ask why his advice has changed.

Depending upon liquidity of an estate, and the expected taxes, administration expenses, and debts of the decedent, and how well the decedent's financial affairs are known by the fiduciaries, it is sometimes possible to make an early distribution. In other situations, where information is imperfect, prudence frequently dictates holding off on distribution until no more claims can be brought, and any amounts for income taxes or estate taxes have been determined.

The trust can avoid probate, but there are limitations with respect to avoidance of creditors, depending upon particular circumstances. Likewise for estate and income taxes.

The style of attorneys varies. Some are very forthcoming with information, and excel in keeping their clients informed, whether or not they ask. Others take their cue from the clients, and provide information only when the client inquires or when the attorney determines that the client needs to know specific information. However, the client is always free to ask and should ask if he doesn't understand what is going on. I.e., don't write off the attorney until you ask the questions that are bothering you, and see what the answers are.


Real Estate - Boundary Line Dispute


Several years ago we had a boundary line dispute with our neighbor.

The dispute was over a stone wall that we sort of share. At the time, they wanted to knock it down but we felt it was there for a reason. It is the defining property line.

Now, the neighbors had a surveyor out at their property to survey yet again (we had a reputable survey done several years ago). We believe they are interested in putting in a pool. We don't mind if they do but we want to make sure that we are not under any obligation legally to let them use our land in order to do so.

You mentioned that you had a survey done previously - I assume that it covers the boundary line in question. There should be permanent survey marks placed, if not previously there. Is there any issue about the boundary?

It does make sense to simply ask them "what's up?" They can't use your land, and you could have them move anything placed upon your land without your permission by them (or their contractors), but it is better to avoid the dispute in the first place.

If they indicated that they are going ahead contrary to what the facts and your wishes are, you should hire an attorney.


Additional Information

You may also wish to see our website for additional information concerning estate planning.

Link to ABA FAQ

The American Bar Association Estate Planning & Probate Section has a FAQ.