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Herbert Warren Cooper IV
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Herbert Cooper’s Answers

628 total


  • Can two attorneys be involved in probate of one estate?

    Co-representatives of an estate started probate process in Massachusetts with one lawyer. Co-rep hired different (new) lawyer who has taken lead on the estate (agreed upon). Does the original lawyer need to withdraw in order for the estate to be c...

    Herbert’s Answer

    Not necessarily. You should consult with your attorney.

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  • How do we amend a recorded quitclaim deed (for an irrevocable trust) to change the trustee when one has resigned?

    Property had been transferred by quitclaim deed to the trustee of an irrevocable trust. The trustee has resigned, and a new quitclaim deed cannot be recorded because ownership is not passing to a new entity. Only the trustee is changing. Example:...

    Herbert’s Answer

    Typically, there is no need to record a new deed when trustees change, just when the trust property is being deeded to a new person or entity, or if a trust is being wrapped up and trust assets are being distributed to the beneficiary. However, when the trustee of a trust changes, it is helpful, if not required, to show who is successor trustee. For some trusts, and in the old days, part or all of the trust would be recorded, particularly including the trust provision on successor trustees. While there is no present requirement to record a trust, a trustee certificate can be recorded which will list who the current trustee is, and who is nominated as successor trustee. Typically, that certificate will be executed by a currently serving trustee of record. Otherwise, an acceptance of trust could be recorded, or a trustee certificate plus an acceptance, or a similar document. Much easier to do with an attorney, however. Good luck!

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  • Is an Agent for Service of process required for non-resident executors?

    Am I required to list a resident agent for service of process if my executor is a non-resident of that state? Please let me know the law.

    Herbert’s Answer

    It depends upon the state. It used to be the case in some states, but there have been some changes in probate paperwork. Now some states require the executor to explicitly submit to personal jurisdiction in order to be appointed executor- rendering the agent for service of process no longer critical. Some states may still require an agent for an out of state executor.

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  • A civil complaint was filed against me in the superior court so I answered and counter sued against the company and owner.

    A civil complaint was filed against me in the superior court in Boston so I responded with an answer and then counter sued the company and owner. It has been more than 60 days and they have not responded even though I have responded to them and th...

    Herbert’s Answer

    The short answer is, yes, you can ask that they be defaulted. Whether or not this is granted would depend upon why they didn't respond, including whether they were properly served, etcetera. If you are successful, they would not be able to contest the undisputed facts in your counterclaim (but any disputed facts in the Complaint/Answer would remain so). The step after that would be to seek a default judgment, showing to the court the amount of damages arising from the uncontested conduct.

    Depending upon the facts, it might be a little more complicated than one might realize. You may wish to retain an attorney. Good luck!

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  • Non-profit Compliance - Inactivity

    I'm treasurer of a nonprofit (501[c][3]) organization that administers learn-to-skate programs in partnership with the US Figure Skating Association. Our activities are seasonal from September through March. Our Executive Director is on exten...

    Herbert’s Answer

    As long as you are not misleading the public about your organization's plans, a hiatus in programs is possible. Of course, you do have to maintain whatever filings are required by the state and federal governments, including the five year reregistration of the nonprofit corporation with the secretary of state, in addition to the filings with AG and IRS. Good luck!

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  • Power of Attorney for home closing

    Hi, My wife and i are the buyers. We both are going to be on the home title, but mortgage itself is just on her name. If my wife cannot attend the closing, can she give me power of attorney to close the home? Thank you

    Herbert’s Answer

    As mentioned by the other answer, you'll have to comply with the requirements of your lender. Much is required by the lender and or closing attorney to protect them from any later claims against them. Check with your real estate attorney (the one who just represents you, and not the lender's attorney) and they may be able to help sort things out. Ultimately, though, the requirements of the lender and closing attorney will have to be met, even if things are signed ahead of time. Good luck!

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  • Is it possible for 2 banks to discharge on the same loan

    Title problem with selling my house. I have 2 discharges one from Bank Of America and one from Chase. The Discharges refer back to a single mortgage from a local bank. Is it possible for these 2 banks to have an interest in my mortgage or is th...

    Herbert’s Answer

    There shouldn't be a problem if there are too many discharges, only if there weren't a discharge from the record title holder. Title problems are typically the wrong lender discharging, or a missing assignment from the original lender transferring the loan to the lender providing the discharge. In part this crops up from how often loans get packaged and sold. Your real estate attorney should be able to sort it out. Good luck!

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  • Getting a settlement

    If i have been working with a lawyer for 2 years on a harassment case. And he called me to tell me that both sides agreed to a number to settle and hes waiting for a draft from the other attorney. Is it likely they can or will back out? Or can i d...

    Herbert’s Answer

    The old adage is "don't count your chickens before they hatch." Occasionally, there are issues which arise during creation of a settlement agreement which put a monkey wrench in the works. Sometimes there is misunderstanding between attorney and client (on either side), and sometimes people "have a change of heart." To be safe, it is best to await execution of a settlement agreement before changing your expectations.

    Good luck!

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  • Which state should I give my wife limited power of attorney in?

    I am looking to give my wife limited power of attorney to buy an automobile while I am away on business. However her current state of residence is Massachusetts and mine is new Hampshire. She will most likely be buying the automobile in Ma, but ...

    Herbert’s Answer

    Basically, a limited power of attorney should include all powers necessary to carry out the limited tasks needed - broad enough to cover everything, but no broader. It should be valid in the state where it is executed. Typically, but not exclusively, if it is valid for the state where it will be executed by the principal, the state where the agent is using it will honor it as well. Of course, there are exceptions, particularly with regard to real estate. (Some states require that powers of attorney to deal with real estate be executed with all the formalities of a will).

    For simplicity's sake, it could be done in Massachusetts. Good luck!

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  • What to do it there are two properties in the estate.

    My parents have both passed away. The executor (my brother) has made it clear that no one is to use primary residence. No one is allowed to enter home, etc. until decide what to do. His reason, which I agree with, is to keep things "fair and trans...

    Herbert’s Answer

    Ultimately, the Executor is responsible for preserving estate assets. It is a good idea for an executor to be fair and equitable in administering the estate, and allowing one beneficiary advantages over another can be a source of problems for the executor down the road. That said, it is easier to keep a property insured at a reasonable price if it is occupied or in use. As to whether, in a particular situation, it is "fair" that one beneficiary gets to use a property, that might depend upon a variety of facts and circumstances not publicly known. At the end of the day, it makes sense to bring your concerns to the only person who has authority over the situation, the executor, and make your case that it isn't fair because "...." whatever the specific reasons. You can then find out if there is more to the decision than you know.

    If you don't feel that the executor is being fair, and you feel there is damage to the estate, you could contact an estate attorney for assistance. This assumes that you feel it is worth the expense and potential damage to relations with the executor. Good luck!

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