Massachusetts Trusts Legal Questions

I'm sorry for your loss.  One possible way to address this is to interview new attorneys and when you decide to hire the new attorney have that attorney reach out to the attorney you met with in September and ask for your file and a refund of the retainer.  The attorney from September will probably respond to a demand for such from your new attorney more promptly than a request from you.  Unfortunetaly I've had to do this several times this year and its amazing how many times the client will say "the attorney never responded to me" but when I send a request for the file it shows up on my doorstep by FedEx a couple days later.  Best of luck.... Read More

Regarding the trust, it sounds like you need to use the power of the court to get the trustee to meet her obligations.  If you have not sent a written request to her for information, I recommend sending that first.  Mail it registered mail so you have proof she received it.  If you are a beneficiary of the trust, you have the right to receive accountings.  You even could give her a deadine and tell her that you will file a complaint if she does not respond. In general, the duties of a trustee and how disputes regarding the trust are determined first by the language of the trust itself, so I recommending reading it carefully or obtaining a copy if you don't have one already. The probate court has jurisdiction over trusts so you can file suit there to enforce the trust terms or against the trustee for malfeasance or failure to perform some duty.  I would advise hiring an attorney to do this. If you have not done so already, I recommend revoking your power of attorney.  Provide her with a copy of this revocation.     ... Read More

Yes, a grantor can be the beneficiary of an irrevocable trust.   I think that your instinct to safeguard the house from sale or mortgage is a good one, but I don't think that an irrevocable trust will get you where you want to be.   An irrevocable trust just means that the trust cannot be terminated or modified.  Putting the house in an irrevocable trust probably woud not prevent your son from selling or mortgage the house; the trust could just sell the house.  I suppose that you could have specific language in the trust that the house cannot be sold or mortgaged for a certain period but I'm not sure that would work given that your son is the only beneficiary of the trust.   To restrict what can happen with the house, my thinking is that you would need to transfer ownership of the house from him or put some sort of restriction on his rights of ownership.  For instance, you could have him grant you a life estate or life lease, which would give you the legal right to live in the house or rent the house for your lifetime.  Any sale or mortgage would be subject to this restriction so very unlikely.  Or he could transfer some or part of the ownership of the house to you; if you owned all or part of the house (as a tenant in common, not a joint tenant) he would not be able to sell or mortgage without your agreement.  If he transfers the house to you, you could leave it to him in your Will or even put it in a trust that benefits you while you are alive but goes to him when you die.  Any of these would be recorded in the Registry of Deeds and so available to any bank or buyer.  You could sign an agreement with him that you will pay off his mortgage in exchange for his promise not to sell or mortgage, but this is not as desirable because it would not prevent him from selling or mortgaging, it just would enable you to sue him if he did so.  ... Read More

Good morning. Your brother as the sole trustee must act in accordance with the declaration of trust or trust agreement.  He cannot do whatever he wishes to do with the home in trust. Please feel free to contact me for any reason. Thank you, Richard E. Palumbo, Jr. Law Offices of Richard Palumbo, LLC* 535 Atwood Avenue, Suite 4 Cranston, RI 02920 www.richardpalumbolaw.com / rpalumbo@richardpalumbolaw.com Tel: 401.490.0994 / Fax: 401.490.0945 *Our attorneys are admitted in RI, MA, CT and US District Court - RI and MA Nothing contained in this email shall be considered legal advise or establish an attorney – client relationship and no such relationship shall be established without a Client Legal Services Agreement signed by you and us. ... Read More

Good morning. When a property in trust is sold then the trustee or trustees of the trust will receive a check from the closing attorney.  Then the trustee will deposit the check into the trust account and then cut checks in accordance with the trust declaration or agreement to the beneficiares if the trust declaration or agreement requires the same. Please feel free to contact me for any reason. Thank you, Richard E. Palumbo, Jr. Law Offices of Richard Palumbo, LLC* 535 Atwood Avenue, Suite 4 Cranston, RI 02920 www.richardpalumbolaw.com / rpalumbo@richardpalumbolaw.com Tel: 401.490.0994 / Fax: 401.490.0945 *Our attorneys are admitted in RI, MA, CT and US District Court - RI and MA Nothing contained in this email shall be considered legal advise or establish an attorney – client relationship and no such relationship shall be established without a Client Legal Services Agreement signed by you and us.   ... Read More

Not all wills need to be probated. Probate of a will is essentially the last resort. If all assets were arranged by the decedent to go directly to the heirs (such as through joint accounts and beneficiary designations), then the will does not need to be probated. If there are assets that need to go through probate, then whether or not there is somebody who wants to contest the will, it needs to be probated. If there are probate assets, then no matter who is inheriting the assets, they need to be dealt with. The Probate Court has to put somebody in charge of the estate to collect the assets, pay debts, and make distributions of the remaining assets to the heirs.... Read More

There are several factors to consider to address your situation. Let me start by saying I don't have enough information to do it fully, but I will give you some guidance. • A Trust document names someone to carry it out who is called a Trustee. The Trustee is allowed to handle the business of distributing the assets in two ways. He must either follow the instructions written in the Trust, or if there are no instructions, he can use his own judgment. In other words, if the Trust does not spell out what should be distributed to whom, how, and when, the Trustee gets to decide how and when to give out what is set aside for each beneficiary. Sometimes a Will is part of a Trust. • Some Wills are not part of a Trust. If some assets were in a Will that is separate from the Trust, the Will must go through a court process called probate, which can be lengthy. In a Will that divides the total assets evenly between heirs, a court often orders the Executor to sell whichever assets of the estate can be sold before the total amount is divided into equal shares. The Court is not required to make decisions based on any heir's need for cash, but on what the state's laws say is the way to fairly distribute the estate. Although you are within your rights to hire an attorney to try getting cash now, here are 3 things to consider first: Legal steps against your brother will most probably cause a serious rift between you and him. If probate is involved, there may be little your brother can do to speed the process, since it is controlled by state law, not him. Regardless of whether there were instructions, if there is a Trust and he is the Trustee, he has been asked to use his own judgment to decide what to do. The only way a judge would change that is if you are able to document proof (bills, receipts, checks, account statements, etc.) that your brother has mishandled the estate. I caution you against acting emotionally because of your financial distress. You should not contest this unless you have proof of wrong-doing on your brother's part. You might however, approach your brother on a business level. Put together your request as if it is a business proposal and try to speak with him about helping you address your finances. He may find a new respect for your situation. To your success,Gale Allison, Principal AttorneyThe Allison Firm, PLLChttp://www.theallisonfirm.comhttp://www.linkedin.com/in/GaleAllison ... Read More