Legal Question in Wills and Trusts in Massachusetts

Re: estate question

I am sorry about this problem that was beset on you.

There are two basic matters.

1, All assets that were in joint ownership or as part of the life insurance policy bypass probate, unless the beneficiary is the probate estate or a trust formed by your mother's will.

2. All other assets held in your mother's name are supposed to be disbursed according to the terms of the will. No person can take control of these assets and use them unless authorized by their position of being an executor, a position that is ONLY formed by an order of the court.

Having said this, you can force the issue about the filing of the will, and deal with the assets I described in the 2nd paragraph.

It requires more than intent to divide assets that are not part of the probate estate. It requires something in writing.

If you are considering an action, you should weigh the costs and benefits.

This is a general explanation. Your situation may be different. If you want to consult me to ask any questions or need my assistance, contact me.

Re: estate question

First, I'm not clear from your language if the Court has actually issued a decree naming your sister as executrix or if she was just nominated. If the latter, then she has no legal authority to do anything with the probate assets. You should consult an attorney about getting yourself named in her stead.

As jointly owned assets, you can file an equity petition in the Probate Court requesting a decree that the assets be made a part of the probate estate. Massachusetts law provides that "a representative of the estate of the deceased may show, by a preponderance of the evidence and in light of the attendant facts and circumstances, that, at the time the joint account was established, the deceased did not intend to make a present completed gift of a joint interest in an account." So, you would need to establish to the court's satisfaction that no gift was made and that the joint account was for administrative convenience. That would be done through some combination of documentary evidence (like old tax returns and writings) and testimony.

This is a messy situation -- you will need to find an attorney with experience in probate litigation to advise you further.

Re: estate question

As Attorney Golden mentioned, your question is somewhat confusing, because you state that you would like to have her removed as Executrix, but then mention that she hasn't filed anything with the court.

1. A person in possession of a decedent's will (assuming there was a will) has an obligation to file it promptly (30 days from date of death) with the appropriate probate court (based upon where the person resided.) It does not matter whether there are any assets in the estate.

2. If the person nominated executrix is unsuitable, an interested person could object to their appointment, assuming again, reasonable grounds for such objection.

3. If one of the other siblings is named as alternate executrix, and or can be appointed administrator (if not named in the will), they will have more leverage in obtaining information about your mother's estate.

Echoing what Atty. Golden said, there is law on when joint accounts aren't treated like "joint" accounts, but this is a situation where you will certainly need an experienced probate attorney. If litigation becomes necessary, it can get quite expensive.

Whether you find it worth the money to pursue the matter further will depend upon additional information, but you should be careful about revealing additional information when it will not be protected by attorney-client privilege.

Finally, to the extent you, your siblings and sister can work it out directly, it may prove more valuable to you all in the long run, economically and otherwise. If you can't, then contact a probate attorney.