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Barrister
Barrister, Attorney
Category: Business Law
Satisfied Customers: 38198
Experience:  16 years practicing attorney, JD, BA, MBA
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This question is for Barrister only. Please refer to the

Customer Question

This question is for Barrister only.Please refer to the questions that led to a phone call yesterday. I was disappointed that I was not able to speak with you directly, but was called by another attorney, who was not as tuned in as you as to the situation. The call left me totally confused. Please respond to my follow up questions on this matter, and advise if you would be available personally for a call if desired.1.The trust states that the assets are to be distributed to my wife and her brother. Since the partnership interest goes to the trust under the terms of the will, does "distributed" mean that after probate the real estate is transferred 1/4 to my wife and 1/4 to her brother. If so, it seems the partnership would no longer be owner of the real estate. Assuming the addendum extending the partnership had not been signed by all partners, would not the partnership at this time be dissolved without a new partnership agreement?2. Refer to previous below for follow up question:
Me: Is it possible that the real estate must be sold to comply with the terms of the will, with the proceeds going to the trust as directed by the will, and then dispersed according to the terms of the trust?
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You: Depends on what the will says... If it says the proceeds go to the trust, then it has to be sold. If it says the property is to be transferred to the trust, then it gets deeded over to the trust.The will says that all property in his estate to be bequeathed to his trust, which would include his 50 % interest in the real estate owned by the partnership.( His partnership interest had already been placed in the trust) The trust says that the assets will be divided into equal shares and distributed. This indicates 1/4 real estate interest of wife and brother would be deeded from the trust to them. Assuming no addendum continuing the partnership is executed, does this mean the partnership is over?3. Refer to previous question below for follow up question:
Me. We are hoping that my wife and brother did not have the authority to amend and continue the partnership, since the partnership ended when Dad diedYou. They didn't, but they had the power to enter into a new partnership with uncle if they wanted to.. But since the estate owned father's 50% and then it went into the trust, if they signed something personally, it wouldn't really matter since they don't own the 50%, the trust does.Assume the addendum is construed to be a new partnership agreement. Are you saying it is not binding, because it is the trust currently owns the 50% partnership? If it is the trust that currently owns the 50 % partnership interest, and my wife is the trustee of the trust, is there even still a partnership, and if so, does my wife have the authority to act on behalf of the partnership on partnership matters?I am trying to determine if there are fairly solid grounds to stop the brother and uncle from transaction partnership business claiming they are majority owners!Thanks,Don.
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Submitted: 1 month ago.
Category: Business Law
Expert:  Barrister replied 1 month ago.

Hello again,

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Those phone call offers are not generated by me, but rather by the JustAnswer website. I do not participate in the phone call program for the site and limit my interaction with customers only to the website because I like to have time to think about a customer’s question and research it so I can provide the best answer possible.

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Since the partnership interest goes to the trust under the terms of the will, does "distributed" mean that after probate the real estate is transferred 1/4 to my wife and 1/4 to her brother.

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Correct.

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If so, it seems the partnership would no longer be owner of the real estate.

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Correct again.

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Assuming the addendum extending the partnership had not been signed by all partners, would not the partnership at this time be dissolved without a new partnership agreement?

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Yep.

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Assuming no addendum continuing the partnership is executed, does this mean the partnership is over?

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Yes, they would have to agree to enter into a brand new partnership because the one ended when father died. You can't have a partnership with only one person... Further, it would appear that since it doesn't say the property is to be sold and the proceeds go to the trust, the property would be deeded from the estate over into the trust and then deeded from the trust to the two children half of the 50% each, so 25% each via a deed from the trust to them personally.

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Assume the addendum is construed to be a new partnership agreement. Are you saying it is not binding, because it is the trust currently owns the 50% partnership?

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I think that they have a new partnership, but they don't have the legal authority to put the 50% that father owned into it yet because his estate owns it now.

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And even if everything was settled and they all signed a new partnership agreement, any partner can pull the plug any time they want to on a partnership and cause it to be dissolved. You can't force someone to stay in a partnership. Then any assets that they put into a partnership would just come back to them. A partnership is just an agreement, it isn't a legal entity like a LLC, or Sub S Corp, LLP, or C Corp... it is just an agreement to be partners in a venture.

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I am trying to determine if there are fairly solid grounds to stop the brother and uncle from transaction partnership business claiming they are majority owners!
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This is going to depend on what the partnership agreement says in it. If it says "majority rules" then it does. But even if there is a partnership, it only controls the half of the property that uncle owns. It can't control something that the other partners don't legally own yet..

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So bot***** *****ne is that wife can ask the probate court judge to just order a sale of the entire property if she wants and then it would be sold, the estate gets 50%, then that goes into the trust, and then the trust disburses half that money to brother and half to your wife..

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You can't force someone to own property if they don't want to. And if they are going to try and bully her, she just needs to force a partition sale and cash out.

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thanks

Barrister

Customer: replied 1 month ago.
Very enlightening. Just one more follow up.It seems to be the case in Nebraska, by custom, that the majority of ownership interest rules. The brother and uncle have taken control, and totally excluded my wife, because they claim they are 3/4 owners, based on the "new" partnership agreement.If the new partnership applies only to uncles 1/2, no one would have a majority interest in the total partnership. Since decisions made for the uncles 1/2 would also effect the trust's 1/2, could the trustee of the trust, my wife, veto any partnership decision she disapproves of. If it is in the trust, seems like my wife can vote the 1/2 trust share, and her 1/4 interest in her uncles 1/2 would give her the majority vote in partnership matters, until probate is done.It is still not clear to me that the fathers 1/2 is not in the trust, because he placed his partnership interest in the trust when the trust was formed - he just did not have the partnership deed his 1/2 of the real estate to his trust! Surely he had a vote when he was the trustee of his trust, so why would that not carry over to my wife as successor trustee? The p-ship "interest" is in the trust, because the trust document states it is in the trust! Probate is only required before the trust assets can be distributed, but the trust is responsible to manage the assets until that time, which means active involvement in the partnership by the trustee..Please give me your comments one more time, letting me know if my assessment is not correct. It just seems logical that the p-ship interest IS in the trust, and if it is, the trustee can act for the trust.Maybe transferring to the trust in 1990 ended the partnership, because the trust is a different entity than the dad, and was not a partner on the partnership agreement. What do you think?Also, when the real estate is dispersed from the trust, would another new partnership agreement be required to continue the partnership?Sorry for my confusion. Just need to determine if the uncle and brother can be stopped from depleting the partnership assets.Don
Expert:  Barrister replied 1 month ago.

If the new partnership applies only to uncles 1/2, no one would have a majority interest in the total partnership.

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Not really... uncle and brother would control 75% of the 50% ownership of the property that was subject to the partnership. But they would have zero control over the 50% owned by the estate.

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Since decisions made for the uncles 1/2 would also effect the trust's 1/2, could the trustee of the trust, my wife, veto any partnership decision she disapproves of.

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Yes, once the property is transferred into the trust. But my understanding is that it is now in the estate, not the trust.

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If it is in the trust, seems like my wife can vote the 1/2 trust share, and her 1/4 interest in her uncles 1/2 would give her the majority vote in partnership matters, until probate is done.

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That is an interesting take on things... but it depends on what the partnership agreement actually says..

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Let's say that is the case... if they ignore her and do what they want, then her only recourse is to sue them, just like it would be to force a sale of the entire property with a partition action. So why bother fighting about who controls what, just sell the place and be done with it.

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All the language about the "partnership" being in the trust is pointless... the partnership owns nothing. father and uncle owned the property in their individual names 50% each... As I said earlier, a partnership is not a legal entity, it is just an agreement to work towards some agreed on goal..

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So the only owners of the property ever were father and uncle. And if the deed was in father and uncle's name when father died, then it goes into his estate. This issue is being unnecessarily complicate by everyone thinking that a partnership is some actual legal entity like an LLC....it isn't.

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Also, when the real estate is dispersed from the trust, would another new partnership agreement be required to continue the partnership?
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Yes.

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Sorry for my confusion. Just need to determine if the uncle and brother can be stopped from depleting the partnership assets.
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Yes, it can, wife as executor can get an order from the court for all the financial records about the property and what it is earning, what expenses are, etc. because the estate owns 50% and the uncle owns 50%.... so the executor has a legal right and a duty to inquire into what is going on with estate assets. The judge can even order a receiver to basically take over managing the property if it appears that uncle is mismanaging, stealing, or allowing the estate's interest to be harmed..

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If wife doesn't have an attorney representing the estate, she absolutely needs one or she may end up letting them steal away money or assets that should be hers by right..

Customer: replied 1 month ago.
It is still not clear to me that the fathers 1/2 is not in the trust, because he placed his partnership interest in the trust when the trust was formed - he just did not have the partnership deed his 1/2 of the real estate to his trust! Surely he had a vote when he was the trustee of his trust, so why would that not carry over to my wife as successor trustee? The p-ship "interest" is in the trust, because the trust document states it is in the trust! Probate is only required before the trust assets can be distributed, but the trust is responsible to manage the assets until that time, which means active involvement in the partnership by the trustee..??? Isn't the partnership in the trust if dad put it in his trust, regardless if he didn't deed the real estate to the trust. It is still his and just requires probate to transfer to his name.Also, the property is not recorded in the names of the brothers, it is in the name of the partnership. Not sure you are clear on this.Does this change anything?..you:. uncle and brother would control 75% of the 50% ownership of the property that was subject to the partnership. But they would have zero control over the 50% owned by the estate.They would have control because any action that affects the brothers 1/2 also affects the estates 1/2? Leases, evictions, etc.???Regarding selling. Not acceptable. 93 year old uncle has not raised rent in 15 years, and has let property run down. Just renting at market value and a little clean up would double the value. $200,000-400,000 loss to my wife! Regaining control would allow us to turn the property around before selling.Like your idea of a receiver. Would put all on hold and stop loses..
Expert:  Barrister replied 1 month ago.

Let me ask you one question... whose name was the deed to the property in when the father died?

Customer: replied 1 month ago.
The title to the property was XYZ , a partnership, not in the individual names of the dad and uncle.
Expert:  Barrister replied 1 month ago.

Ok, then it had to be something like a LLP, which is a legal entity, because that is the only way the deed to the property could be in the partnership name.. But the only way to transfer a person's interest in a LLP is for them to actually transfer their shares of the LLP to another legal entity or person.

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So if the LLP owns the property and the father legally transferred his shares in the LLP to the trust while living, then the trust does own the shares of the LLP which in turn owns the property.

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That means that wife as trustee of the trust is in control of 50% of the property and the uncle is in control of the other 50% unless they agreed to something different in the new partnership agreement.

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But unless she signed off in her official capacity as trustee, then she didn't agree to do anything with the trust's 50%, she and brother just agreed personally. Now, if the shares of the LLP are transferred out of the trust to wife and brother, then they would each own 25% of the partnership, which owns 100% of the property.

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Back to the idea of wife being in control.... If the new partnership agreement she signed gives her a 25% interest in uncle's 50%... and she has complete control over the 50% in the trust since it hasn't been transferred out of the trust yet, then I can see the argument being made that she is the one who has the majority control over the partnership.

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So with that in mind, if wife as the trustee doesn't agree to how the property is being operated, wife could sue the uncle for "waste" which is where they let the property run down so as to damage their interests and ask a judge to appoint a receiver to manage the property.

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Or she could still file for a partition sale, and then bid on the property to buy out brother and uncle if she wanted to own the property.. Or at the very least, run up the price so they had to pay her a fair price for her share..

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Right now she has a pig in a poke because they are running it into the ground and her interest is going along with it.

Customer: replied 1 month ago.
The exact wording on the deed is: Paul Davie and Sons, a Co-Partnership. It was recorded in 1962. I have the deed in front of me now. It is not a LLP.How does this alter your last response? He placed his interest in the partnership into his trust in 1990, but the real estate was not deeded to his trust.I hope it IS in the trust and as trustee my wife has 50 % voting share until probate transfers his 50 % of the partnership real estate into the trust.What are your thoughts?
Expert:  Barrister replied 1 month ago.

Honestly, I am thoroughly confused now because I have no idea what a "Co-Partnership" is... never even heard the term in 17 years of real estate law..

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But however the partnership was formed legally, if he put his shares in it into the trust then I have to say that the trust owns it and is in control of the 50% that he owned.

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Customer: replied 1 month ago.
You are not the only one who has not heard of it!Your answer that the trust currently controls his 50% seems logical to me.Thanks for your excellent communication and patience.Don Winnett
Expert:  Barrister replied 1 month ago.

You are very welcome.

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Have a great evening!

Barrister

Customer: replied 1 month ago.
I think a case could be made that the partnership was dissolved when he put it in the trust. He couldn't just transfer to a third party unless the partnership agreed to accept that party as a partner.
Expert:  Barrister replied 1 month ago.

I think a case could be made that the partnership was dissolved when he put it in the trust. He couldn't just transfer to a third party unless the partnership agreed to accept that party as a partner.

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I agree that argument could be made, unless the uncle says he agreed and has no problem with it.

Customer: replied 1 month ago.
To conclude this discussion, I would like to approach it from another angle.Your opinion will be appreciated.Assume that I own an income property 50/50 with my brother. We have a partnership agreement related to this ownership. The partnership is named D&S Properties. The partnership does not address the death of a partner other than the surviving partner has the right to buy out the deceased partners interest within 6 months of his passing. The title to the property we purchased was deeded directly to the partnership, D&S Properties, not to me and my brother as co-owners.I want to place all of my assets, including my partnership interest, into a trust, to pass this partnership interest to my 2 sons when I die. I form the trust and include my interest in D&S properties in the trust. I neglect having the partnership deed 1/2 interest in the partnership property into the trust. My will moves all my assets to my trust upon my passing.Main question: If a real estate interest in a partnership is transferred to a trust, but the title to the real estate is in the name of the partnership, and not deeded to the trust, is the partnership interest in the trust, even if probate is required to transfer the real estate to the trust?
Can a partnership interest be transferred to a trust, since the trust is a separate entity from me? The trust would in effect be a new partner.If my brother gave permission verbally to the transfer to the trust, and for the trust to be the new partner, would my interest be in the trust, since the property was not deeded to the trust?When I pass away, what is the status of my partnership interest? Is my trust now the new partner, or co owner, with all the rights I had as partner, until probate is completed and the property distributedDoes the partnership cease to exist, because one of the 2 partners is gone?Is the partnership interest in the trust, since the real estate interest was not deeded to the trust?If the partnership interest is not in the trust, because the property was not deeded, but my will moves all my property to my trust upon my death, what is the status of the partnership interest at that time? Before probate to move the real estate, would the trustee have the partnership rights? At probate, would the partnership be dissolved because the partnership assets would be distributed to my sons.?Approaching it from this angle will give me a better understanding of where my wife now stands. She hopes to have the right to act as partner as trustee during the probate process.Thanks,
Expert:  Barrister replied 1 month ago.

I am unable to assist further so I will open the question up to other experts..

Customer: replied 1 month ago.
Ok . Please refer only my last question to another attorney. It is a hypothetical, but the answer will apply and help clarify my understanding of the actual situation.Thanks for sticking with me in sorting this out.Don Winnett