Can an estate be forced to sell real estate to cover debt if the home was bequeathed to an adult child? My mother died in West Virginia. I am her son and the executor of her will, in which the home was bequeathed to me. The estate has insufficient funds to pay medical and other debts. Can WV probate court force me to sell the home to pay the medical and other debts? Can liens be placed on the home prior to, or after probate closes (and the home, I presume, will become mine)?
I am sorry for your loss, and that you have to deal with bills on top of everything else. The quick answer is yes, you might have to sell the house to pay your mother's bills. As you probably know, the estate includes both your mother's assets (cash, house, car, and so on) and her debts. In general, to &quot;settle the estate,&quot; the executor must pay all debts before she gives away any of the assets. Legal Aid of West Virginia has a helpful website about West Virginia probate law. Here is what it says about this issue: If you can’t pay all of your family member’s creditors from the person’s available money, you must sell off the family member’s property and pay the creditors in the order listed in W. Va. Code § 44-2-21; W. Va. Code §§ 44-1-18 to -20. You may have to sell the family member’s land or home in order to pay creditors. W. Va. Code § 44-8-7. Added after comments Under WV law, it does not matter that you were bequeathed your mother’s house. The law gives debtors priority over heirs. This means debtors are paid before any heir. Heirs are “paid” from whatever is left in the estate after the debts are paid. So if the estate is underwater, if it owes more than it is worth, there will be nothing left in the estate to give to the heirs. As executor, your job is to carry out West Virginia law. The nuts and bolts of what happens if you refuse to the sell the house depends on WV law. You might be able to find the details by searching on line, but your best bet is to probably to talk to an attorney who specializes in WV probate law. An attorney will know both the law on the books, and how that law is implemented. They will be able to advise you on what options you really have, and the costs and benefits of those options. If the estate is underwater, you could buy the house from the estate. If you do that, you will not be liable for any of your mother’s debts; those are owed by the estate. Depending on how the sale is handled, this may be your (financially) best option. (Depending on whether the price covers the debt, and on what other heirs are bequeathed, the court might worry about you selling yourself the house at a discount price, and thus look at the sale very carefully.)
Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete. You can't prevent the sale, but if you file suit to adjudicate the boundary dispute and file what is called a "lis pendens" giving notice that the suit is filed in the real estate records, the buyer will taken subject to the lawsuit and realistically, won't close in the first place. The prospect of an impending sale is unlikely to be something that would cause the court to take expedited action or issue a temporary restraining order, because you can preserve your rights with a "lis pendens" which doesn't take a court order. The absolute minimum amount of time in which you could get a court order on the merits without a temporary restraining order is perhaps three to four months, which is almost surely too long to prevent a sale of a house. The suit isn't pointless after the sale is complete. You can still enforce the boundary against the new owner. And, often, a new owner, having no ego in the placement of the fence, might settle the case sooner than the old owner would have. But, better practice in terms of neighbor relations would be to file suit first, so that the new buyer, if the buyer goes forwards with the sale, is aware of the defect. The old owner is also more likely to have evidence useful in the lawsuit you bring. Short of filing suit, send a letter to the realtor and the neighboring property owner with a copy of the survey advising them of the problem. If you could somehow figure out who was handling the closing, you could tell them too. This will impose upon them a legal duty to advise the new buyer before closing, and if they fail to do so, they expose themselves to the risk of a fraud lawsuit from the new owner. But, while this is cheaper, it also presents a risk that they won't warn the buyer who will then not have notice and the risk of being sued for fraud may cause the seller and the seller's realtor to resist your suit more aggressively and to be less prone to settle it. If you wanted to be really aggressive, you could give the neighbor notice that the fence is over the line and that you will destroy it if the neighbor doesn't act, and then tear down the fence, which is strictly speaking within your rights if you can do so without a breach of the peace, because it is on your property. I wouldn't recommend this approach, however, as it could lead to violence or police involvement that depending on the policeman who isn't trained in real estate law, might get you arrested which is not good even if the charges are later dismissed.
Normal ways of owning a house don't allow this In common law jurisdictions (so, be careful if you set this in Louisiana which has mixed civil/common law) the normal ways that residential property is owned would either require the agreement of all parties to sell or one party could sell their share but they could not force the other party to do so. However, there are lots of ways that property can be abnormally owned. First, there is the transitional period where the property is legally owned by the Estate of the deceased for the benefit of the beneficiaries and administered by the executor of the will or the administrator if there is no will. If the house was bequeathed specifically to the beneficiaries then the executor must arrange for the legal transfer. However, if there is no will or the will just bequeaths assets without identifying them then the executor/administrator has discretion on whether to transfer the house or to sell it and distribute the proceeds. If this is shortly after the death and the sister was the administrator, she could decide to sell. The house could be owned by a company. If so, the director(s) would be able to dispose of it. The director(s) are appointed by the shareholders and if the sister had more than 50% of the shares, well. This is not a particularly common way of owning residential property because it has tax disadvantages but it is a common ownership method for industrial or commercial property: many companies own the land where they do business. Perhaps the house is a small part of a large factory complex? The property could be inside a trust with the brother and sister as beneficiaries but the sister as trustee. Trusts can be discretionary (i.e. the trustee decides who gets what) or unit trusts (like having shares in a company - you get it in proportion to your holding). The latter is the way publicly traded property trusts work. While the trustee has to operate in line with the trust deed and for the benefit of all the beneficiaries, the sister may, reasonably or unreasonably, decide that selling the house is in those interests.
A Last Will and Testament can be very complex. The longest and most complex one that I have drafted runs to about eighty pages. I've seen some in probate proceedings that run to about 120 pages, with additional exhibits of numerous pages containing legal descriptions for real property and serial numbers and account numbers for other assests. How many resources will be expended to execute it? Is this process self-funding? The fiduciaries appointed to carry out with implementing a Last Will and Testament in a probate proceeding spend whatever they need to spend to carry it out, to the extent that funds are available in the estate. The assets of the estate pay for these costs of estate administration. Say, if it prescribes that assets should be disseminated only upon a condition, possibly many years in the future, can I be sure it will happen exactly as described? You can't. You're dead. You nominate fiduciaries such as executives, personal representatives, administrators, guardians, conservators, trustees, custodians, and trust protectors to carry it out. They have fiduciary duties to faithfully carry out your instructions which interested persons, such as creditors and beneficiaries of the estate and trust protectors, can sue to enforce. In the case of charitable trusts, there is also a government official (in the United States, usually the state attorney general of the state in which the estate is administered) that has standing to enforce will and trust provisions for the benefit of a charity. There are certain legal doctrines that exist to discourage you from exercising &quot;dead hand&quot; control for too long. One of this is a very complicated rule known as the &quot;Rule Against Perpetuities&quot; which differs from jurisdiction to jurisdiction. Another (in the U.S.) is a tax known as the Generation Skipping Transfer Tax. There are also legal doctrines that allow interested persons to apply to a court to modify or reform the terms of a probated will or trust, doctrines such as the cy pres doctrine to deal with cases where transfers to entities or persons that no longer exist are present, doctrines that invalidate certain dead hand directions (e.g. related to race or to marriage) as a matter of public policy, statutes that invalidate certain kinds of real estate ownership with remote possibilities of reversion to a remote relative (e.g. fee tail), and doctrines that allow will and trust provisions to be reformed because it is impracticable to carry the out the terms even if it isn't strictly speaking impossible to do so. For example, can I award my legacy to someone who solves a certain equation (where the verification of this might be complex, and costly in time and money)? Subject to the doctrines set forth above, yes, this is possible. The typical way to do this would be to establish a foundation to oversee this part of the legacy and to name someone such as the current holder of an endowed professorship, or the chair of a university department or scientific institute, as an arbitrator of the question of whether the condition was met (typically with instructions to pay for that service as an administrative cost or instructions that it be self-funded by the recipient of an endowment gift to an institution as a condition of receiving an endowment gift). If an arbitrator was not appointed, a court would typically appoint an expert known as a &quot;special master&quot; to investigate the question (as the expense of the parties seeking to be paid and the estate) to determine if the condition was met in the event that this was disputed, or to ratify that the condition was met, in the event that this was not disputed. The &quot;special master&quot; would then investigate the matter and issue a report after receiving input from all parties and any independent investigation that was authorized by the order appointing the special master, and the report to the court would recommend a resolution. The parties could tell the court whether they disputed the special master's finding, and if so why, and the court would almost always adopt the special master's recommendation on the basis of that report. I have seen this process used in cases involving complex tax questions in probate court. Another common way to do this would be to establish a donor advised fund in a &quot;community foundation&quot; which is a foundation shared by many donors with a common administrative staff and investment pool that administers foundation-like funds from particular donors according to the substantive terms of the fund. There are examples of things similar to this (such as the Nobel Prize) being done. When I was in law school, there was a popular urban legend, I don't know if it was true or not, but it could have been true, that the dining hall in the law school (at the University of Michigan where I took my meals for my first year in law school) was endowed on the condition that steak be served every Friday. True or not, the steak was always there on Fridays.
Under normal common-law principles, she has provided you a gift and you have accepted it, which transfers the property to you unconditionally. You also made a gratuitous promise that you might attempt to repay her. That promise has no legal effect as a contract, both because the promise is so uncertain as to be unenforceable, and because it is not supported by mutual consideration (i.e., she has not promised to do in anything in exchange for your promise to pay you back). If the case is presented with these facts, a court should therefore deny her request to force your repayment.
Every state requires at least two witnesses to a will unless it is entirely written in your own handwriting. A lawyer as a witness is fine. A spouse as a witness is not ideal as she would be an interested party if there was a dispute over whether it was executed. It may not be prohibited, but I would never do that in my practice ever. I discontinued a will signing just last week because we only had a lawyer and a spouse and not other witnesses. I would be somewhat concerned.
As Polygnome points out in the comments, the first step is to determine who owns the original copyright on your mother's work now. This will be her heirs. If you are the sole heir then no problem. If the copyright was explicitly left to you in her will, also no problem. If there are multiple heirs and no explicit assignment of the copyright, then problem. The copyright will probably be considered part of the chattels of the estate (i.e. everything except real estate). If those are allocated fractionally (e.g. half each to two siblings) then the copyright probably followed that principle, unless you have already come to some agreement about it. If you are on good terms with the siblings then the best bet is to just make a deal for their part of the copyright. You could just ask them to sign it over to you, or you could cut them in for a percentage of future royalties. That makes the situation 100% clear, and any publisher is going to require 100% clarity before they consider offering a contract. Once you have the whole copyright you can go ahead and register. I've looked through the registration process and it doesn't actually ask about derivative works. What it wants to know is whether you own the copyright, and who were the authors (including works for hire). So just fill it in on that basis.
We don't want this issue to adversely affect our credit and got legal consulting which suggested we should pay the debt collector to protect our credit score, and then sue the landlord for the money back in small claims court. I'm a little worried about this strategy since it requires to hand away the money first, and am trying to get second opinions. The debt collector is probably either the owner of the claim against you, if it is an assignee of the claim, or an agent of the landlord for purposes of collection. Thus, payment to the debt collector is equivalent to payment of the landlord. The law varies from jurisdiction to jurisdiction regarding whether payment constitutes of waiver of a right to sue over the debt. Sometimes it is necessary to designate the payment "under protests" or "reserving all rights", but that is not a uniform rule of law that applies in all jurisdictions, and I do not have the time and familiarity with that state's law to research Massachusetts case law on that point accurately.