Legal Question in Wills and Trusts in Massachusetts

This sounds like an extremely complicated scenario, and there is so much missing information, that I fear you are not likely to get the kind of helpful advice you need in an on-line forum like this.

As I understand it, the 1st sibling moved to remove the 2nd sibling as petitioner, but was unsuccessful. You state that the expenses incurred by 2nd sibling should be credited to him or her in addition to his or her share of the real estate. Was this ordered by the Court or simply something you are seeking?

My guess is that the 2nd sibling erred in seeking appointment as personal representative (administrator) for the purposes of seeking the sale of the property, when he or she should have been filing a partition action. Because the previous owner (the mother) had been deceased for at least one year, no license to sell was required by the Probate Court and there was nothing for the Probate Court to administer. I believe this is what the Court is trying to tell you by stating that the property is "out of Probate".

I am only speculating here, but my guess is that the 2nd Sibling does not have a great argument for expenses, since the 2nd Sibling may have filed the wrong type of action in the first place, and the 1st Sibling's response of asking for a neutral administrator was an excusable, if not correct, response.

The property simply passed under the laws of intestacy to the heirs of the mother. In order for the siblings to derive any monetary benefit from the real estate, it is likely that the siblings will need to work together to sell the property, either to one another or on the market to a third-party buyer. If the siblings cannot agree on a course of action, but one sibling still wishes to give up his or her ownership of the property in exchange for the monetary value of his or her share, he or she will need to file a Partition Action in the Land Court or the Probate and Family Court.

Both parties are on the right track here, but they either need to work together - either one of both of the parties should really have representation here - to sell market and sell the property or bring the matter to the Land Court/Probate Court by filing a Petition to Partition.

I welcome you to contact my office and schedule an appointment. Our office has handled numerous partition actions - as well as other real estate and family probate disputes - and I would be happy to speak with you.

I can be reached by telephone at 617-357-4898 or by e-mail at [email protected]

Good luck to you.

While I agree that your question is too complicated to be answered by a forum like this, generally the cost of administration of an estate are borne equally by the heirs. Absent an Order by the court to the contrary and subject to approval of the court, you should deduct the expense of defense from the proceeds and then split the amount.

It is likely you will have to file a Petition with the court for approval of legal fees et cetera if the parties cannot agree.

However, if title is currently in the name of both heirs as tenants in common, you may have to sue the first sibling to recoup the costs of administration. If title remains with the administrator, then you should request approval of reimbursement of expenses from the proceeds from the sale unless the first sibling does not agree, In your petitiion you can ask that all the costs of defense be borne by the first beneficiary.

If you would like assistance, please feel free to call me at 617.406.4647.