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April 15, 2010

Reasonable relatives make dividing an estate easier

About the law Andrew Myers

My mom died recently. For the last 10 years of her life, she lived in a home I purchased for her to live in. The deed is solely in my name. My mother's will instructs how to distribute money in bank accounts and some larger items. I am the executor and will do as she wanted in the will. Her bank accounts are all joint with me. However, she has numerous belongings, big and small, which are not mentioned in the will, and over which my siblings are already fighting — things like antiques, furniture, jewelry and collectibles. Do these items need to go through probate or do they belong to me by default because they are technically in my home?

If the will was done properly by an attorney, it should have what is called a residuary clause. Indicating that "all the rest and residue of my estate ..." or some such words, this clause handles the disposition of everything and anything that was hers at the time of her death that is not otherwise specifically referenced in the will.

If, as a practical matter, family members want to act like reasonable human beings and to agree to divvy up your mom's things, then that's the best way to deal with the situation.

However, if people want to squabble, then as executor, you will be forced into the position of listing everything in an inventory to the court, selling it all, then splitting the proceeds in accordance with the dispository provisions of your mother's will. If people take things, by agreement or otherwise, then their financial distribution is offset.

Your ownership of the real estate has no bearing on your mother's ownership of her personal effects inside.

Give people the choice.

I'm starting a new fitness business, and I'll offer personal in home training. How do I get a form with a valid liability waiver and what should be included?

As a personal injury attorney, my closed case files are littered with liability waivers that did not stick. Where state statutes give the right to a liability waiver, for example, in the ski industry, often they are enforceable. Otherwise, liability waivers generally just work to scare people. Yes, go to a good attorney to get a liability waiver as part of your overall contract.

We have lived in New Hampshire for years, but due to job loss and now a new job, we are soon moving to Ohio. We qualify for a Chapter 7 bankruptcy, but should we file here or in Ohio?

The jurisdiction requirement applicable to a bankruptcy requires that you file where you have lived for the majority of the 180 days prior to the date of filing.

So, the answer to your question is that you could file in New Hampshire where you live now, or wait until 91 days after you move.

• • •

Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.

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Reasonable relatives make dividing an estate easier
by About the law , Andrew Myers , Thu Apr 15, 2010, 02:17 PM EDT
Crime / Court

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