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Herbert Warren Cooper IV
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Herbert Cooper’s Answers

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  • If an executor of estate refuses to disclose the balance of an account with cd's could you take legal action for embezzling

    Executor has control of non probate assets, checking & savings account and cd's. He refuses to say what is left and we fear he's been helping himself. The house has not been probated yet but we are concerned about what's left and do we have the ri...

    Herbert’s Answer

    It depends upon who the owner is. You really should consult an experienced attorney. In some cases, beneficiary designations of nonprobate assets are used in lieu of a will. It gets a little complicated, as the intent of the decedent comes into play.

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  • Can client force us to do work and deliver product without paying us for the work?

    We are doing software development for a client on two different projects. On one of the projects, client has not paid what they owed. They are very late, and they are imposing conditions we have not agreed to in order to consider paying us for bac...

    Herbert’s Answer

    Ultimately, everything is economics. However, the first step, as you have taken, is to look at the written contract. Regardless of what they claim their attorney says, it is not necessarily easy to "skip steps," and if your contract requires binding arbitration, as a follow on to mediation, there is a reasonable chance it is enforceable. That said, you need to speak with an attorney. Disputes about custom software projects can be messy, and depending upon the facts, settlement of one nature or another is a typical outcome because of the costs of trial. (Arbitration reduces these costs, but they aren't entirely eliminated.) Of course, customers always expect glitchless, perfect software for next-to-nothing, so unrealistic expectations are a given in these matters.

    Anyway, you should contact an attorney fairly promptly, as it may be possible to find alternative solutions at an early stage. Good luck!

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  • Are there any downsides to a KISS Trust? Want to give relative money after I die, don't want anyone challenging the trust.

    Want to give granddaughter money when she is 18. Messy divorce, bitter custody battle, mother won. No rights to see granddaughter (WA State) and DO NOT want this mother to get ANY of this money EVER. Is a KISS Trust iron-clad or could the mothe...

    Herbert’s Answer

    There is an adage, "you get what you pay for."

    No attorney would ever promise that any trust can never be attacked. Anyone can sue about anything, and depending upon circumstances, be more or less successful.

    I don't know much about the product you mention, so I'll refrain from comment on that particular item. Generally, attorneys discuss with clients the pros and cons of different approaches, as there is rarely one solution which will not have drawbacks in some possible scenarios. I.e., if one plans to give an "inter vivos" gift to a child upon their majority, what happens if the child dies first? If the money is held by a trustee, what happens if there are problems with the trustee? If a trust is irrevocable, what happens if the donor changes their mind? What tax elections have been made for the trust, and are they appropriate for a particular situation?

    We like to walk people through different scenarios, provide them with the maximum flexibility for their circumstances, keeping in mind the financial amounts involved. So, for some people, they may find a "pay on death" account sufficient, even with the risk that the ex might have a chance to control the money for a period. For others, a will naming a third party as a custodian for the funds pending the majority of the intended beneficiary will do nicely. In other cases, a trusted friend might fit into the plan.

    Ultimately, there are a host of possibilities. The question is, what is it worth to see that the unintended not get the money. If you don't have a will, financial power of attorney, and a durable power of attorney for health care, the incremental cost of advice for that scenario would probably be minimal. Good luck!

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  • My Dad's life insurance policy is payable to trust under the will. He had a Will, no evidence of a trust. How is it paid?

    Will has been probated

    Herbert’s Answer

    This is definitely a question that you'll need an experienced attorney to help resolve. This will involve the contractual provisions of the life insurance policy, including default provisions in the event a specified beneficiary is not available, as well as your father's testamentary documents.

    Generally, before a beneficiary such as a trust (trustee, technically) is named as a beneficiary of the life insurance policy, it should be in existence. The life insurance agent and estate planning attorney typically co-ordinate with the insured/testator to make this happen, and that the proper sequence is followed. As others have mentioned, checking with your late father's advisors, if available, would be one place to start. There are various scenarios where a trust under the will might have existed, but became "moot", such as a trust for a minor or young person during their nonage. Sometimes people forget about how things were set up previously, move to a different estate planning attorney, and things get confusing.

    As a general proposition, a later will trumps the earlier, and typically life insurance defaults to the estate (controlled by the will) if a beneficiary predeceases the insured and or doesn't exist. However, it would be wise to have the actual documents and circumstances reviewed by an attorney.

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  • Real estate - what are my options?

    I purchased a condo about 6 months ago. The seller signed documents saying that she was not aware of any special assessments coming up. Recently, I received a letter from the condo association that structural work needs to be done on building...

    Herbert’s Answer

    Echoing the other answers, you'll really need an attorney to review the circumstances to determine whether there is a solid case. While there is a certain amount of "buyer beware", outright fraud is never acceptable. Overcoming "buyer beware" isn't necessarily easy, but in appropriate situations, it is worth the effort. However, if the seller has no money, your remedies may be limited, as the other attorney mentioned. Good luck!

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  • Easement agreement. What kind of attorney would I use?

    Need to setup easement agreement for shared driveway on my property

    Herbert’s Answer

    As others have indicated, you need a real estate attorney. There may be other implications, including with regard to a mortgage, title insurance, zoning, etcetera. Good luck!

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  • I am planning to buy a property with my brother as co-owner He already owns another property. What are the things to consider?

    I am planning to buy a property in Massachusetts with my brother as co-owner. He already owns a property. For me it will be my first property in USA. Is it legally possible to do so? What are the legal and financial obligations? Would the mortgage...

    Herbert’s Answer

    When buying property with another person, it is wise to consider what scenarios could arise where there might be disagreement, and plan ahead as to how you intend to resolve them. Examples include when a property needs significant work because of damage not covered by property insurance, or undiscovered problems, etcetera. If the property is a rental property, what will happen if you have a tenant who doesn't pay, and you don't have income coming in from the property for a period of time? What happens if one person wants to sell, but the other doesn't? What happens if one person wants to make improvements, but the other not? What is the exist strategy? Should your children inherit the property, or should your co-owner be required to "buy out" your share upon your death? It would be wise to think through, then sit down with an attorney and prepare a good agreement.

    The mortgage will depend upon the circumstances - is it your primary residence, or is it an investment property? The rates and requirements may differ. What property tax "break" are you talking about? Some towns have residential exemptions, others not.

    You are well-advised to consult with an attorney who has real estate experience.

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  • My Dad died four years ago.

    He had a will where he named me executor. He left a house to me in the will which is still in his name. The house has no debt. I have a sister he left money to, and she already has the money. I want to transfer the house to me, but I was told I ha...

    Herbert’s Answer

    I'm not sure I agree with the other attorneys. I believe there is an exception to the 3 year limitation to probate of a will:

    G.L. 190B s. 3-108: "(4) an informal appointment or a formal testacy or appointment proceeding may be commenced thereafter if no proceedings relative to the succession or estate administration has occurred within the 3 year period after the decedent’s death, but the personal representative shall have no right to possess estate assets as provided in section 3-709 beyond that necessary to confirm title thereto in the successors to the estate and claims other than expenses of administration shall not be presented against the estate; ..."

    See also: "Section 3-102. [Necessity of Order of Probate for Will.]

    Except as provided in section 3-1201, to be effective to prove the transfer of any property or to nominate an executor, a will shall be declared to be valid by an order of informal probate by a magistrate or an adjudication of probate by the court, except that a duly executed and unrevoked will which has not been probated may be admitted as evidence of a devise if (1) no court proceeding concerning the succession or administration of the estate has occurred, and (2) either the devisee or the devisee’s successors and assigns possessed the property devised in accordance with the provisions of the will, or the property devised was not possessed or claimed by anyone by virtue of the decedent’s title during the time period for testacy proceedings."

    I would be interested in hearing if my learned colleagues disagree...

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  • When do people pay estate tax?

    Hi, I am a resident alien and my parents are french but their fiscal residence is switzerland. If they die, will I have to pay estate tax in the US and if so what percentage? thanks

    Herbert’s Answer

    Generally, not, as the other attorneys noted. However, there can be twists, and there are certain reporting requirements which would come into play upon receipt of the inheritance, so you should consult with a tax advisor in the event your parents do leave you an inheritance. (The U.S. is very concerned about people "parking" money in Switzerland in secret accounts.)

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  • I was given the option to buy stock for a startup I worked for but never bought them within the "90 Days". What do I do?

    I worked for a startup for 2 years. My offer letter said: "Stock Option Bonus: 10,000 options, vesting over a 4 year period of employment. • Your options will vest according to the following schedule, at which point you will have the right t...

    Herbert’s Answer

    You really need to look at what information was provided to you, and when. There may be several agreements which affect your rights under any options awarded to you, and the company should have provided them to you in a timely fashion. If you had fair notice that the options would lapse, you may be out of luck. If not, you might be able to salvage something. It would turn upon the actual contracts and agreements provided to you. Likewise, if there were agreements which pointed to other agreements, you would have some duty to investigate. How much may depend upon the circumstances.

    Good luck!

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