Legal Question in Wills and Trusts in Massachusetts
My fathers estate in NJ is settled and the final disbursments are being sent out However, the NJ lawyer states that my check (I live in MA and siblings are executors) cannot be sent out until I send back the form that states that I have received the check. Since I have not recieved the check, and do not want to sign that I have, what can I do? She states that she knows this sounds odd but that is the law. How is this possible to require a signature that you have received a check when you have not? If I were to receive the check, and cash it, that in itself is valid proof that I have received it and cashed it. If, on the other hand, they do not send the check after I have sent in the form stating that I have received it, I have no proof that I did not. Is her (the lawyer's) interpretation correct and if so what else could be done? I have moral issues with signing that I received that which I did not, and am fearful since throughout this process I have learned not to trust many things. Thank you.
1 Answer from Attorneys
I know this sounds counterintuitive. This is often done in MA, also. In order to close an estate, the executor must show the court that the funds have been disbursed. However, if the funds have been disbursed and someone objects to the account once it is filed with the court, it is often dificult or impossible to get the money back. I am guessing that the receipt you received also includes an area where you assent to the final account. The final account is a listing for the court (and for the heirs) of what money came into and went out of the estate. In order for the estate to be closed, at least in MA, the account must be filed with and allowed by the probate court. It is easiest to file an account with all assents. Therefore, the executor is stuck asking for assents / receipts even though the final disbursemenrts have not actually been made.
If the executor / attorney does not send you the money after you have sent in your assent and receipt, you can sue him or her for a breach of fiduciary duty. Because of their position, they owe you a duty of care to conduct their duties for your benefit and not to your detriment. It is unlikely that this will be necessary, but you do have recourse.