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Does real estate belong to estate or beneficiaries?

Additional Information:

My sister, legal resident of VA, recently died. Her will states all property to be sold & shared equally by her 8 siblings. Executor tells us that since the will has been probated the house belongs to 8 siblings – not the estate and siblings are responsible for all expenses. There are difficulties as 1 brother cleaned out the checking account (his name was on it) and several want to file action to prevent final distribution of estate so he will not get his share. We thought this would mean money held in a bank account – not holding onto a deteriorating asset. If this is right, why have a will?

Probate question from Worcester, MA

ATTORNEY ANSWER:

Since your sister was a resident of Virginia, Virginia law controls. My comments that follow are based on Massachusetts law. You will need to consult with an attorney licensed in Virginia to see how Virginia law compares to Massachusetts law. Real estate vests immediately in the legatees of a decedent’s will, subject to divestment in the case of creditors of the decedent’s estate. The legatees are ultimately responsible for the expenses associated with the real estate (real estate taxes, insurance, etc.). Unless there is evidence that a financial account was made joint with a decedent and someone else by the decedent for convenience, the surviving joint account holder is entitled to the account. In your sister’s case, if her will said sell everything (including the real estate) and distribute the remaining proceeds (after her debts are paid) to the legatees of her will, it is my understanding the fiduciary (executor) is required to proceed as such (sell the real estate). The fiduciary proceeding as such will probably be a lot less time consuming and expensive than all of the legatees having to agree to sell the real estate (and, in the absence of all of them agreeing to do so, ending up in probate court in a petition to partition proceeding).

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The attorneys at The Beliveau Law Group provides legal services for estate planning (wills and trusts), Medicaid (planning and applications), probate (estate and trust administration), business law (formation and operation), real estate (residential and commercial), taxation (federal and state), and civil litigation (in connection with these practice areas). The law firm has offices and attorneys in Naples, Florida, Waltham, Massachusetts, and Salem, New Hampshire.

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