What to Do About an Executor Lawyer Who Gives No Sign of Closing an Estate I am trying to ascertain how long it should take a lawyer to close someone's estate. I know that each situation is different, but let me provide you with some general details: A Rhode Island woman who lived in assisted living died in March, 2020 and divided her estate amongst 18-20 nieces and nephews. Among other things, the executor, a Rhode Island lawyer, had to close out an annuity and file the deceased's income tax for 2020. To the best of my knowledge, there were no illiquid assets to convert into cash. How long should all this take? It has been 16 months now and still no sign that the estate is nearing a close. Some of the beneficiaries have taken it upon themselves to contact the lawyer and complain about the delay. Some have complained about rude treatment. Let's say, for example, that at the time of death, the estate was worth $1 million. Generally speaking, how long should a non-complicated estate take to close (even with a slow IRS )? How much should the family expect the lawyer to take out of that before the final distribution.? Does the family have any recourse (without hiring lawyer ) to expedite matters? Should the Rhode Island bar be contacted at this point? If not, when? or ever? What is the recourse for families in similar situations? Thank you.
It has to take at least 6 months because that is how long creditors have to file claims. This gives one opinion that &quot;A typical probate process will take up to 24 months from the date of the decedent's death&quot;. It really depends on the circumstances (e.g. is there real estate that needs to be sold: is there a title snafu that you didn't know about? Is someone contesting the will?). The bar association won't help you, so it you want to get legal on the executor, you will have to hire an attorney. An inventory of debts and assets is supposed to be files within 90 days of appointment by law, but it also has an exception &quot;or such longer period as may be allowed by the probate court&quot;. You can petition the court to order an interim accounting, and if the court things the executor is delaying, it can require an interim accounting. You should assume that the executor will respond with a good reason for the delay. Here is a form in case you are interested. You can always hire an attorney to write a letter asking what the delay is, but this is not a shocking delay.
Your question seems to be about abandoned property and whether Missouri’s statute on disposing of property after a tenant abandons his/her property applies. See Mo. Rev. State. Ann. § 441.065 (“Abandonment of premises, disposition of remaining property.”) Assuming there was no agreement (in writing or orally) for the 19 year-old to pay rent, he was most likely a guest and not a tenant. As a guest, landlord-tenant laws, would not apply to the property that that was left at the nice family’s house. The definitions section of Missouri’s landlord-tenant statutes (and common sense) support this analysis. See Mo. Rev. Stat. Ann. § 441.005. Therefore, the issue them becomes did the 19 year abandon his property? To that question, I think the answer is yes. Missouri Courts have defined the test for “abandoned property” in Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo. App. W. Dist. 1989), stating: Abandonment is the voluntary relinquishment of ownership so that the property ceases to be the property of any person and becomes the subject of appropriation by the first taker. Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Abandonment of property requires intent plus an act. Id. A sufficient act is one that manifests a conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession. Id. Intention to abandon may be inferred from strong and convincing evidence and may be shown by conduct clearly inconsistent with any intention to retain and continue the use or ownership of the property. Herron, 782 S.W.2d at 416. So to synthesize that passage from Herron, the court is saying that there is a 2 part test for determining if property is abandoned. Did the person intend to abandon the property? Did they commit some act to show this intention? If the answer is yes, to both, they the “first taker” or person that gets possession after the property is abandoned is the new owner. Here, it seems that the 19 year-old intended to abandon the property. He left without explaining why and stated that he would not unload the property if the nice family tried to return it (implying he would not accept the property back). Looking at the second part, him moving without giving notice, and telling the nice family that he won’t accept delivery of the property are both acts showing his intent to abandon the property.
In general, one can dismiss a lawyer at any point by simply informing the lawyer that no further services are wanted or will be paid for. If the lawyr and client have a contract, then any provisions on the contract about termination would need to be followed, unless the lawyer was in materiel breech. It is probably best to make the notice of cancellation in writing, but this is not mandatory unless a contract calls for it. The lawyer can still bill for cervices performed before the cancellation. If the lawyer has already ordered and contracted for services (or goods) to be used in representing the client, and those orders cannot be cancelled, the lawyer may be able to bill for them. Whether discharging the lawyer is wise is a very different question. There might (or might not) be good reason for dealing with the father's estate before that of the brother. But the client can choose what legal services s/he wants, even if the choice is unwise.
Titled property, like real estate, is not owned by a trust until title is transferred to the trust. The trust is, in a legal sense, a separate entity from you. Yes, it takes paperwork to effect that transfer, but that's the only way to get the benefits of having the property "in the trust." Wills, however, do not require a transfer. You can put your intentions in a will and the executor of that will is obligated to handle the property in accordance with the will.
The law regarding proof of service allows service of summons by publication in case a defendant "is not a resident of the state, but has property therein and the court has jurisdiction of the subject of the action". Plaintiff must file an affidavit saying that he believes that you are not a resident, and he either mailed the summons to you or states that your residence is unknown. Knowing how to contact a person is not exactly the same as knowing their residence, so the statement in the affidavit might be true. There is a one year limit on your right to defend and reopen if not served personally. The statute of limitations tolls after the cause of action has accrued (which I suppose would be defective service of the summons, viz. perjury in the affadavit). For recovery of real property, the time would be ten years. The court rules allow that "At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued". (This is clearly a matter that your attorney needs to address).
It’s a common law rule dating from the 17th to 19th centuries Known as the rule against perpetuities “that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written.” The rule has its origin in the Duke of Norfolk's Case of 1682. That case concerned Henry, 22nd Earl of Arundel, who had tried to create a shifting executory limitation so that some of his property would pass to his eldest son (who was mentally deficient) and then to his second son, and other property would pass to his second son, but then to his fourth son. The estate plan also included provisions for shifting property many generations later if certain conditions should occur. When his second son, Henry, succeeded to his elder brother's property, he did not want to pass the other property to his younger brother, Charles. Charles sued to enforce his interest, and the court (in this instance, the House of Lords) held that such a shifting condition could not exist indefinitely. The judges believed that tying up property too long beyond the lives of people living at the time was wrong, although the exact period was not determined until another case, Cadell v. Palmer, 150 years later. Historically, the rule was no longer than 21 years from the death of some person alive at the time the trust or estate was created. However, that person(s) must be limited and identifiable. Which led to the creation of Royal lives clauses. The descendants of British monarchs became popular because it’s easy to find out who they are, even many years after the fact, and that family tends to live a long time. Other popular choices, particularly in the United States, are the descendants of John D. Rockefeller or Joseph P. Kennedy. This is often only one of the conditions for the end of the trust and becomes a “savings clause” to prevent violation of the rule if the other conditions are (or become) too far in the future. The period has been changed or abolished by statute in many jurisdictions. For example, England and Wales has adopted a flat 125 year limit. As a state-based law, the United States is hugely variable. Examples For example, one of the businesses I run operates under a trust deed that says: &quot;The Vesting Date&quot; means the first to occur of the following three dates namely:- (i) Sixty years after the date of this Deed. (ii) Twenty years after the date of the death of the last survivor of the lineal descendants of His late Majesty King George V born and living at the date hereof or, (iii) The date (if any) which the Trustee shall in his discretion appoint as the distribution date of this settlement. The deed was made in 1982, which partly explains its style and implicit sexism, but I suspect that the solicitor who drafted it has been using the clause about George V for a lot longer than that. As of today, there are 35 living people who fall into the definition, including Charles III (see if you can work out the others); since there are now less than 20 years to go until 60 years after the deed, the clause will never be relevant. Another business operates under a deed made in 2022: 14.1 Termination date The Trust shall be wound-up and terminate on the first to occur of: a) the date which The Trustee with the written consent of the Leading Member Appointer determines; or b) 80 years from the date of this deed unless a State law allows otherwise including South Australia. Note that the reference to living people is gone. Also, note the specific reference to South Australia, a jurisdiction that has abolished the rule against perpetuities. So long as they don't change their law back, this trust is effectively perpetual. Finally, not how much easier this is to read and skips the implicit sexism; progress. Why doesn’t it affect the property of ‘immortal’ entities like companies or governments? Because, in theory, it isn’t dead people telling living people what they can do with the property. While the organisation may be ‘eternal’ the people making decisions for that organisation aren’t - the directors and legislators/executives in charge today can decide what to do with the property. This includes having the capacity to rewrite the rules of the organisation. While it may be hard to change a company’s rules and very, very hard to change a country’s constitution, it isn’t impossible the way it is with a trust deed or a will. Changing a deed or will too much can result in resettlemet; creating a new trust and usually crystalising tax obligations the delaying of which was often one of the motivations for the trust in the first place.
Florida bar membership is something that can be determined from public records to see if he is an attorney or not. I would be stunned if he was not. It could be that he was an enrolled patent agent prior to being admitted to the practice of law and has never updated the record. Alternatively, it could simply be that there was a data entry error. No large database is 100% accurate. For most purposes, the rights of an enrolled patent agent and an attorney admitted to patent law practice are the same in PTO practice, so correcting this error (assuming that it is one), even if it was discovered, wouldn't be an urgent priority.
What does this paragraph mean? Line by line. I give my Residuary Estate This is a gift, effective when the person writing the Will dies, of everything that is left over after all debts and taxes are paid and after any other gifts already in the Will (e.g. leaving a car or a house or a Monet to someone in particular) have been given. to the said [Full Name] absolutely I'm going give [Full Name] a name so that it is easier to follow this explanation. [Full Name]'s name for purposes of this answer is &quot;Luna&quot;. This says to give all that stuff to Luna when the person who wrote the Will dies, if Luna is still alive for whatever the required amount of time is after the person who wrote the Will dies. The required survival time period is either in the boilerplate provisions of the Will, or in the relevant statute if the Will is silent on the question. The Will says &quot;absolutely&quot; because historically, someone who received gifts of property in deed or wills in England only got to keep it for their lifetime, unless it clearly specified otherwise, after which someone else would get it. But in this case, if Luna survives this long, Luna gets all of this stuff with no strings attached. and if [Name] shall fail to obtain a vested interest leaving issue who survive me then such issue shall take by substitution If Luna dies before the person who wrote the Will does, or doesn't stay alive for the required number of days afterwards, then Luna isn't entitled to this stuff. Luna's descendants get it instead (i.e. Luna's descendants &quot;take by substitution&quot; what Luna would have gotten if Luna had lived, instead of Luna's probate estate getting the stuff). and if there shall be more than one of such issue they shall take in equal shares per stirpes but so that no issue shall take whose parent is alive and so capable of taking. If Luna predeceases and has exactly one living descendant who is alive when the person who wrote the Will dies, and that living descendant lives the required number of days after the person who wrote the Will dies, then the sole living descendant of Luna gets all of the stuff that is left over when the person who wrote the Will dies. If Luna has more than one living descendant, the stuff that is left over when the person who wrote the Will dies, then Luna's descendants gets broken up the way described below, which is called per stirpes: Create one share for each child of Luna who is alive and survives Luna by the required amount of time. If Luna has only one living child, that child gets everything even if Luna's child has children of their own. Create one share for each child of Luna who didn't live for long enough after the person who wrote the Will's death, if the predeceased child has descendants who are alive and remain alive after the person who wrote the Will dies by the required amount of time. This share is then broken up into one sub-share for each child of the predeceased child who is alive when the person who wrote the Will dies and is still alive after the person who wrote the Will dies by the required amount of time, and one sub-share for each predeceased child of the predeceased child who has living descendants who remain alive for the requisite number of days. Continue this process until 100% of the the residuary estate has been assigned to someone and give them their share of it once the estate is settled. If someone lives past the minimum number of days to outlive the person who wrote the Will, and then dies, that person's share goes that person's probate estate. For visual learners, a per stirpes distributions of assets looks like this: A per stirpes distribution to descendants is the plain vanilla ordinary way to giving stuff to the descendants of a dead person when you don't know in advance who will outlive you. What if Luna predeceases with no living descendants? Usually, this paragraph of a Will will be followed by another paragraph called the &quot;ultimate contingent beneficiary&quot; which says who gets the stuff that's left over in the residuary estate if Luna predeceases the person who wrote the Will and has no living descendants. Often, the ultimate contingent beneficiary will be one or more distant relatives, a list of friends, or a charity. If there is no ultimately contingent beneficiary in the Will, but Luna and all of Luna's descendants predecease the person who wrote the Will, then it goes to the next of kin (a.k.a. &quot;heirs at law&quot;) of the person who wrote the Will, if there are any relatives of the person who wrote the Will who are close enough to qualify to inherit under English inheritances law. If there is no one closely enough related to the person who wrote the Will to qualify under English inheritance law, then the stuff &quot;escheats&quot; (i.e. is inherited by default) by the King (or Queen) of England, as the case may be. There are some circumstances when the Will can be ignored. Everything above explains what this language in the Will means. This isn't always what happens, however. There are several exceptions to the general rule that property goes to the people that the Will says it goes to. I won't list them all here, but it is important when a Will is being written to understand that this is the case. For example, if the person who wrote the Will leaves nothing in the Will to their spouse of thirty years as of the death of the person who wrote the Will, who has no assets of their own, then the Court will partially ignore what the Will says and give some of the residuary estate to the surviving spouse. Also, the Will only controls assets that are in the &quot;probate estate&quot;. Some assets pass at death in what are called &quot;non-probate transfers&quot; that are not controlled by what the Will says. And, finally, of course, if the Will was written when the person signing the Will was of unsound mind, the Will can be invalidated in a &quot;Will contest&quot; in the appropriate court if the person contesting the Will's validity can prove that the person signing it was of unsound mind at the time. This is mediocre legal writing This paragraph gets the job done, but it is not very well written by modern legal Will drafting standards. It is adequate and probably meets the standard of care for a lawyer who hasn't committed malpractice. Lawyers in England have been writing paragraphs like this one for three or four hundred years. But it is not &quot;best practices&quot; legal writing in a Will. Good modern legal drafting for a Will would be much easier for a non-lawyer to understand, in addition to being clear and unambiguous.