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Dividing Real Estate in an Estate

A challenge my siblings and I are facing is that our parents' single substantive asset left in their estate is a four-plex apartment first owned by our grandfather. In their will, our parents chose to evenly divide their estate between my five siblings and I. In the past, they had verbally stated things to the effect of "they'll let the kids fight over the apartment." While not explicitly stating in the will, they apparently would like to keep the apartment in the family but couldn't bring themselves to specify who should inherit the property. Four of the six siblings would like to somehow gain ownership, while two (myself included) consider the apartment to be in deplorable condition and see view selling it to be the most appropriate option. The four that are interested in keeping the apartment are not in a financial position to purchase the others' shares. The executor is one of the four interested in gaining ownership. How would Mass estate law drive a settlement?

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Submitted Thu, 01/01/2015 - 17:24

Hi there. As an estate planning attorney and mediator, I can say that the dictates of a valid will controls. It isn't clear from your post which of your parents was the last to pass away or how all the assets were held, but as a general matter, if according to the valid will of a deceased person, the estate is to be divided equally among 6 people, that's exactly what has to happen. Equal can be each of the 6 persons gets a 1/6th share of each thing or it can be an equal 1/6th value of the total estate. If certain real property makes up the bulk of the estate, the executor may have to sell the real property in order to comply with the will's mandates.

Practically speaking, if all the heirs are in agreement, they can come to some resolution among themselves that differs from the will's mandates but the law doesn't drive the settlement, the heirs do. In your case, if you 6 are relatively amicable and wish to avoid a big expensive fight in court and the destruction to the family, you may want to consider mediating a resolution among the 6 of you. Alternatively, you can simply demand your 1/6th share of the estate (presuming that's what it is) and not accept anything less. Given the fact that the executor is also an heir who appears to have a potential motivation to violate his/her fiduciary duties, one might also consider asking the court to appoint a neutral executor to handle the division and let that be that. It may result in hurt feelings and family discord, however, so how to proceed really depends on your goals. It also may result in litigation over things that are not referenced in your post like claims to invalidate the will, claims that certain heirs are owed money by the estate... who knows.

At this point it may make sense to consult with a probate litigator who can advise you on your respective rights/obligations and possible next steps and, if your siblings show interest, you can also consult with a mediator. Many of us offer free initial consultations.

Best of luck,
Meredith Lawrence

lawrencelawgroupllc.com



Submitted Mon, 01/05/2015 - 13:56

You and your other sibling can demand your shares of the estate. If there is not enough cash left in the estate to satisfy that demand, the personal representative will have to sell the building. Even though title to the property vests in the heirs right at the moment of death, the personal representative can still sell the property, within the first year, by petitioning the court for a license to do so.

If it has been over a year since your parents' deaths, you are now the proud owner of 1/6 of the building! You could file a Petition to Partition the property. The court will order the property sold and you will receive your 1/6 (after expenses).

Your sibling who is the personal representative has several responsibilities here, the most important of which is his or her duty is to preserve the assets of the estate for all six of you. Not just him or herself. If the PR refuses to sell the property (or otherwise provide for payment of your shares) and you have to institute an action to Partition the property, that will cost EVERYONE money. The PR may then be liable to everyone for shirking his or her duties. If the PR is smart (or has an attorney - as he or she should as PR of the estate), he or she will see this and do the right thing.

But you and your other sibling need to look out for your own interests. There is no requirement that you maintain ownership of the building. If it has not yet been a year, insist that the PR sell it. If it has been over a year, bring a Petition to Partition. If you would like assistance with either of these things, I would be happy to help. You can reach me by email at steve@d-and-g.com or by phone at 617-859-8966.


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