Is the estate of a deceased person a legal entity? This question is inspired by the discussion in the comments of this answer to another question. In those comments I claimed that the estate of a deceased person is not a legal entity and that it is the personal representatives (executors if testate, administrators if intestate) who hold legal title to the assets of the estate and can sue and be sued in relation to those assets. That assertion was challenged by several people, which leads me to wonder if this is something which varies by jurisdiction. To avoid any confusion, I'm taking &quot;legal entity&quot; to mean an entity which can hold legal title to an asset and be named as a party to a lawsuit in relation to that asset. There was some talk in the discussion about entities being represented in court by a natural person, but I do not consider that the same as being the person named as the party. So e.g. an assertion that &quot;to sue for the assets in an estate, you sue the executor&quot; would suggest that an estate is not a legal entity, while &quot;to sue for the assets in an estate, you sue the estate itself which is then represented in court by the executor&quot; would suggest that it is a legal entity. Is the estate of a deceased person a legal entity? Given the level of disagreement, I'd prefer if possible to see jurisdiction tags and citations of which at least one is an authoritative legal source (ideally primary sources such as legislation or precedents, but secondary sources such as legal textbooks, journal articles, or practice notes aimed at practitioners would suffice). It was pointed out that the IRS refers to an estate as a legal entity but my research indicates that carries a different meaning to the legal one and is relevant only in the context of federal tax filings. If intending to cite the IRS I'd be grateful if this could be backed up with a legal source to show that their use of &quot;legal entity&quot; carries the same meaning as the one defined above. I will self-answer to provide some citations which I believe support my proposition.
Good news: it behaves like a legal entity. An estate is a collection of assets and liabilities that belonged to the deceased. The collection behaves a great deal like an LLC or other legal entity, although states don't call it that. The collection is isolated from anyone else's collection of assets and liabilities. For instance, it's not part of the executor's personal assets, nor liabilities. That's very important because... If the collection is sued e.g. by a creditor, the suit can only make claims against assets in the &quot;collection&quot;. That is to say, the executor's own assets are not at risk. That's very important if you're thinking about volunteering to become an executor or manager of a trust. You can do so without fear of personal liability. Asterisk here *, but don't panic, it's a harmless asterisk. The collection can buy and sell goods and services (more the latter generally). A typical service purchased by an estate is storage unit rental. The collection can hire, fire and generally do business. Consider an estate which owns an apartment building. Life goes on: rent must be collected, utilities paid, leaky toilets fixed, contractors and managers hired and fired. In this case, the estate is a going-concern business behaving a lot like an LLC. The collection/estate could potentially do business indefinitely, if the will of the heirs is to continue doing so. This might happen if splitting the assets equitably amongst the heirs wasn't possible (e.g. the estate of Leonard Cohen collects a lot of royalties)... or too complex to easily back out of (say: the deceased owned 5 McDonalds franchises and had bet the farm on opening two more; backing out now would bankrupt the estate, so the estate might oddly open two McDonalds.) The collection can also sue, and proceeds from the suit or settlement go into the collection. Asterisk again. * The collection has its own Taxpayer Identification Number (aka SSN or EIN). The collection files its own 1040 tax form, and may do so for years or even decades. The point of all these practical examples is that an estate looks, walks and quacks like a &quot;legal entity&quot;. To the point where the IRS even calls it one. And to a boots-on-ground executor, manager or trustee, the reality is it handles like a legal entity, and the experience you have managing legal entities will largely apply, almost in full. Almost. * Now, that asterisk. Due to state court rules in many states, if you attempt to sue an estate, you have to use the right name. And that's what this question is all about. It's a naming convention, and that is all. And courts treat it as such. Take Roe v. Wade. &quot;Roe&quot; is an adaption of &quot;Doe&quot; as in &quot;John Doe&quot;. Wade, however, was the district attorney of Dallas County at the time of filing. Wade wasn't being sued personally. It's just the quirky naming convention the court uses. What you have identified is a similar quirk in court rules, where instead of suing Estate of John Q. Example, the syntactically correct thing is to sue Jane Doe, in the capacity of, Executor of John Q Example's estate. And the italic parts are optional, because the court knows that. Why is this important? It's not important, and that's what the Florida Court of Appeals said in florida Spradley v Spradley 213 So. 3d 1042 (Fla. Dist. Ct. App. 2017. The plaintiff had made exactly the above error: suing &quot;the estate of&quot; instead of suing &quot;Derreck Spradley et.al. (implied: in their capacity as executor)&quot;. The judge threw out the case, saying in essence &quot;You forgot to &quot;dot an i&quot;. The appeals court said no, the distinction is trivial and the court should have simply let the brother &quot;dot their i&quot; and continue with an entirely valid case. In other words, it was a distinction without a difference. So if sued, the executor should not panic about being &quot;named personally&quot; in the suit - you're not personally liable. And it is a waste of time to pick nits over how the name of the defendant is spelled, so says the Florida court at least... and in my humble opinion that precedent would be well received in other state courts, as it avoids wasting docket time and citizen filing fees on an action that will simply be re-filed correctly the next day. Not a license to cheat, however. One way an executor can manage to create personal liability is to abuse or mishandle the role with extreme negligence. In that case, yes, the executor's personal assets could come under fire, basically as punishment for misdeeds. An executor who is careful, honest and gets help when needed won't have any trouble at all.
An LLC is a legally distinct entity from your person. Basically, if your LLC is sued, and you lose, you can lose only what you put into your LLC. Your personal assets are untouched. A very sophisticated plaintiff may try to get around this suing both your LLC and you personally. (I've done this myself.) Even so, if you are careful to keep the business of your LLC separate from your personal business (no commingling of assets, no use of your LLC to pay your bills, but only a salary), then the law will often absolve you of personal liability for the "actions" of your LLC. The reason I warn against "commingling" is because if you do this, you can lose the protection of the LLC as a separate entity, and become personally liable for what the LLC does. This is known as "piercing the corporate veil." If you have home rental operations in more than one state, you may want to establish LLC's for each state. That's because some states are more tenant- and other states are more landlord- friendly than others, meaning that you may want to defend yourself differently in one state versus another.
My boyfriends daughter died. He is her legal father and by blood, he is on the birth certificate. As well as paternity established. Her mother did the obituary and listed her boyfriend the father/parent. Is this legal? Realistically, yes. It is probably legal. The majority rule is that one can't bring claims of defamation or intentional infliction of emotional distress/outrageous conduct, on behalf of the dead. In particular, in Ohio, the Ohio Revised Code § 2311.21 states that actions for libel and slander will end upon the death of the plaintiff. So, no legal relief may be sought on behalf of the deceased daughter. The mom's current boyfriend presumably consented. There is a fair reading of &quot;father&quot; that includes psychological or god-father figure as opposed to legal parent, under which the statement would not be false. Nothing is said about the true father so it isn't really an outright defamatory statement about him that harms his reputation. If the obituary were used as a basis for receiving some sort of economic death benefit, like a social security survivor's benefit or insurance proceeds, it might be a case of common law fraud or something similar, and would also probably constitute criminal fraud or theft. A false statement in a probate court filing would likewise be sanctionable, either by the presiding probate court judge, or in a criminal proceeding (although probably not in a separate civil lawsuit). Arguably, it might meet the standard of &quot;outrageous conduct/intentional infliction of emotional distress&quot; (whether something meets that threshold if all facts alleged are true is a question of law, rather than a jury question), but generally that would require a calculated intent to harm the true father as opposed to, for example, an intent to make that daughter's funeral go smoothly if she had many friends who assumed that the mother's boyfriend was the father, so probably not. Public policy generally favors not having the courts intervene in obituary omissions or inaccuracies. It is certainly not a crime. Not all untruths have legal remedies. I have read its illegal to post a false public document, is an obituary considered a public document? No. An obituary is just a private publication, it has no official status. I would agree with the following source that states that: There are no legal requirements tied to obituaries. They’re a way to tell the story of a deceased family member, and they only carry sentimental value. Obituaries are not a legal or financial obligation under any circumstances. (Source: Do You Legally Have to Have an Obituary or Death Notice?) How can we have it changed and his name put on it. You can't. The funeral home knows she is lying. The director of said funeral home is dodging my boyfriend calls. What can he do? Take out his own obituary in a newspaper or some other medium of his choosing setting forth the true facts. If the original was published in a newspaper, ask the newspaper for a correction or write a letter to the editor commenting upon it. Generally speaking, the First Amendment is designed to encourage responses by counter-speech, rather than by legal action. For example, in one notable case, the Texas Supreme Court's ruled upon whether the authors of an obituary about their son could sue for defamation when someone else accused them of including false statements of fact in the obituary. It held that the authors of the obituary could not successfully sue the people making the counter-statement to their obituary. The Dallas Morning News v. Tatum, Case No. 16-00984 (Tex. May 11, 2018) (affirming a summary judgment order dismissing the defamation lawsuit brought by the authors of the obituary). Footnote Most of the litigation and notable cases involving false obituaries relate to obituaries for people who aren't actually dead.
There is longstanding and well-established legal non-uniformity in defining ‘person’, and in stating laws in terms of ‘persons’. The RICO statutes (18 USC 1961 (3)) states that a person ‘includes any individual or entity capable of holding a legal or beneficial interest in property’. A corporation is a person for the purposes of access to the federal courts, for purposes of forming contracts, and enjoyment of First and Fourth Amendment rights, but not for purposes of voting or 5th Amendment immunity. 1 USC 8(a) states that the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development which states a sufficient condition, but not a necessary one. In Washington state, RCW 1.16.080 says that The term “person” may be construed to include the United States, this state, or any state or territory, or any public or private corporation or limited liability company, as well as an individual. Washington does not define ‘individual’, but we can call on Black’s Law Dictionary to learn that this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association; but it is said that this restrictive signification is not necessarily inherent in the word, and that it may, in proper cases, include artificial persons. And finally, Roe v. Wade 410 U.S. 113, 157 holds that an unborn instance of homo sapiens is not a person for purposes of the Fourteenth Amendment. In short, there is no clear and settled answer to the question. Courts do not always refuse to hear ground-breaking cases, and in case this issue is ever realized, I am confident that cert. will be granted. The point of law is, after all, to state general principles regarding what is forbidden or allowed in a society, thus it must be capable of addressing novel situations. We will have to await that case, but the prospects for your client are good. It is obvious that “persons” have a special position under the law, it is recognised that they have both rights and responsibilities that other things do not have. Summarizing over millenia of jurisprudential thinking, we can see that the special status of persons (when not reduced to divine gift: not applicable under current US law) derives from the fact that persons have a capacity to reason, and to choose actions based on their reasoning. In the context of our current knowledge, this is mostly coextensive with being an instance of homo sapiens, though in case of severe or complete limitation of those faculties, an instance of homo sapiens may not be legally accorded the full set of rights and responsibilities of homo sapiens. In fact, the law does not have a definition of homo sapiens. Before objecting that science teaches us that only earthlings can be homo sapiens, we should be remember that courts do not always hold that terms as defined in a scientific discipline are to be interpreted that way under the law, which is how SCOTUS in Nix v. Hedden 149 U.S. 304 was able to hold that a tomato is not a legal fruit. The plain meaning of homo sapiens is completely consistent with extending legal coverage to Kryptonians. Thus it will be the finding of the court that petitioner, not a member of the species homo sapiens but endowed with the faculty of reason and free will, has all of the rights and responsibilities of a ‘person’ under Kansas law, and has the right to be adopted.
There is ample reason to conclude that "non-commercial" would include a church, as well as advocating a political cause or candidate. The hard part of "personal". In the context of (Canadian) bankruptcy law, it can mean "non-business use"; in the context of "personal use property", it can be "A type of property that an individual does not use for business purposes or hold as an investment. In other words, property that an individual owns for personal enjoyment". US tax law takes "personal purposes" to refer to non-business purposes. But in the context of copyright (especially music downloading / copying), it is taken to refer to the use of or by an individual. Distributing free copies of a protected work does not get legally sanctioned due to the copying being non-commercial. The alternative term "private" is much clearer, in identifying "just you", but is probably avoided in this kind of context so as to avoid the wrong inference that you can only play Pokemon in the privacy of your own home. So the slightly less clear term "personal" is used instead of "private" especially in copyright-related contexts. "Personal" and "private" are not exactly the same, but when it's about use, I don't see any difference, and I think there is no question that use to attract to a church or political candidate is not "private", it is public. Since the license does not define "your own personal purposes" and there is not an existing crystal-clear definition of "personal purposes", the phrase could be given its "ordinary (plain) meaning". Of course, plain meaning has to give way to contractual intent, so we have to figure out what the parties intended. Except, you don't have a contract with Niantic, but still, plain meaning surely has some place in the law of licenses. At this point, in a lawsuit, both sides would hire an expert witness like a linguist or English teacher to make the case that a church or other non-commercial non-private use is / is not included in the meaning of "personal purpose". A silly argument could be made to the effect that if you personally have an interest in doing something then it is a personal purpose (if specifically commercial, it would be precluded by the term "noncommercial"). What makes this silly is that everybody does things for personal purposes (even acting in a way that benefits others, since you do so for the personal reason that you should do so), and thus "personal" would not mean anything. That is, "personal purposes" does not mean "whatever motivation or interest you personally have". You can also gain a certain understanding of what "personal purposes" means by looking at similar licenses. In the context of academic publishing, authors are typically granted license to copy "for personal, professional, or teaching purposes". Professional purposes and teaching purposes are things that the person has an interest in, so by mentioning these things separately, we must conclude that "teaching" is not a "personal purpose". And so: I would conclude that a court could find that using a product to support a political campaign, philosophy, or religion, is a "public" purpose, not a "personal" purpose. At the same time, at least as I understand it, a lure module is a thing that others besides yourself personally can see (I admit, I don't go), which implies that the purpose of the thing is not entirely private. In addition, there is a fair amount of buzz out there about how a lure could be good for business, which is (1) clearly in contradiction of the license terms and (2) clearly a golden opportunity for Niantic, perhaps in a few weeks after everybody gets hooked and then they will offer non-personal licenses. Their license terms also say that you will not "use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in a manner not permitted by these Terms". I would say that that definitively says "No don't do it", and it also means that you can't be nice to a neighbor. So what they literally say and what they really intend are probably completely different things.
This is very, very weird. I've never heard of a case like this one. Is there some context that could explain why anyone would refile a divorce someplace new twelve years after getting divorced the first time around? The logical thing to do if Canadian civil procedure is at all analogous to U.S. civil procedure on this point, would be to have a Canadian lawyer file a motion in the Canadian divorce case to set aside the judgment on the extraordinary grounds that you were not married any longer at the time that the 2015 divorce was filed, seeking to set aside the 2015 case ruling. In most U.S. jurisdictions with civil procedural rules modeled on the federal rules of civil procedure (California's are not), this would be a motion under Rule of Civil Procedure 60, but obviously, the Canadian rule numbering would probably be different. Alternatively, if the home is in California, you could bring an action for declaratory judgment declaring that the Canadian judgment is invalid because it was brought in a divorce action between people who were already divorced and probably also lacked jurisdiction over you and the property. I'm not sure what you mean by CPL in this context. Normally, in a real estate context, a CPL would mean a "closing protection letter", but in the context you are using it, it sounds like you are referring to something akin to a lis pendens or a lien. Perhaps you mean a "certificate of pending litigation" which is another name of a lis pendens in at least some Canadian jurisdictions (but is terminology rarely used in the U.S.). This sounds like slander of title, or "abuse of process" or the filing of what is known as a spurious lien, any of which are actionable, but without knowing what a CPL actually is, it is hard to know.
Yes. You go into the court of relevant jurisdiction, and file a lawsuit to &quot;quiet the question&quot;. Usually there is a counterparty who has something to say on the subject; sometimes not. If there is an apparent counterparty, they must be served notice of all aspects of the case. Let's say I manage a pipeline property management company; we are wholly owned by a pipeline company and we buy the land and lease it to said pipeline company. I need a parcel of land to complete a pipeline connection, and as part of my offer I gently remind the landowner, Beth, that we do have the legal right to take the property by eminent domain, with the hopes this will inspire them to a sensible price. Beth says &quot;Bunk! Your LLC doesn't run any pipelines! You don't have eminent domain rights! 500% market price, or go away.&quot; Well. So, for the sake of moving the negotiation along, I go to court and ask the judge to quiet the question of whether we have eminent domain rights. Mind you, I don't go any further than that; I don't want to actually take it by eminent domain if I can talk Beth out of a consensual sale. The judge will, of course, suspect this applies to an imminent case, and will ask... so I might as well disclose the Beth situation. As such, I will have to serve Beth and keep Beth fully in the loop, so that Beth has full right to make the other side of the argument. Since it could affect others as well, the judge will probably also require publication in whichever newspaper handles legal notices. (Many newspapers are propped up financially by being official legal-notice organs for their county. They have six pages of editorial content, and 18 pages of legal notices and other ads.) Most likely, the judge will cowardly refuse to rule on whether a pipeline's land holding company has eminent domain, and simply rule that the pipeline company itself does, and could simply buy the land itself then transfer it to my company as a trivial, taxless transaction. So the judge would grant eminent domain conditional on that transaction being done. Beth then offers 133% of market which we haggle to 120% of market + legal fees. Good enough! Or, Beth refuses, in which case we file an eminent domain action in the same court and before the same judge; being already aware of the facts of the situation, there is nothing left to litigate, and the gavel drops quickly and predictably. This is how &quot;quieting a question&quot; works. It is somewhat less confrontational with the counterparty, since you are going to court, sort-of together, to resolve a hypothetical question; once we know whether we are on solid legal footing, we then are able to continue negotiating. Courts love this, because they really want people to negotiate and make consensual settlements. And if a party insists on filing a suit to on the quieted matter, they can pay their filing fees and lawyer fees to get a lecture: &quot;we already resolved this.&quot; (Or alternately, to present new facts which mean the past ruling is no longer on-point; e.g., Beth discovers we don't want the land for a pipeline at all, but for an access road.) You can also do this with the IRS. This is called a Private Letter Ruling, and it will set you back a $750 filing fee (and legal costs, of course). You'll still get audited, but then you wave the Ruling in front of them and done. Doing this preemptively in a criminal matter would be adventuresome. Your biggest problem would be the press: it would be impossible to do this discreetly, as the case would be fascinating; and it would put every cop and prosecutor on notice that you have a mind to do the potentially illegal thing.
What happens when a person dies intestate is that the court appoints someone to be the executor. That person is supposed to settle the decedent's debts, and divide the remainder equally among the siblings. It is virtually guaranteed that the mortgage-holder will get their share – you can't just sell a house with a mortgage and run. In the meantime, the estate has to keep paying the mortgage and property taxes. The executor has wide latitude to dispose of the estate, and clearing out personal possessions is a necessary part of liquidating the estate. Those possessions being part of the estate, they &quot;count&quot;, therefore that mink coat worth $10,000 can't just be &quot;taken&quot; by the executor in order to tidy things up. But that broken weed-eater worth $1 can just be thrown away and not stored for some months, waiting for the final reckoning. The executor is entitled to compensation for his work and reimbursement for his expenses, so nickle and diming the small possessions is probably economically counterproductive. The executor has the legal power to determine how the legally required distribution is carried out, that is, the law doesn't require a majority vote of the heirs in order to dispose of each and every item of property. If there is an actual legal dispute, if you believe that the executor is improperly carrying out the job, you can hire a lawyer to have him removed, or otherwise put pressure on him to get a change in how things are. This will probably cost you more than you might get from the estate. It is possible that the real estate market will not support the current sale price and therefore a lower asking price is necessary (i.e. the executor needs a reality check). A combination real estate agent + lawyer could help you figure out what to do with the house to make it sell.