Is There an Attorney in the House?

What's the stipulation? Is there a legal FAQ posted somewhere that might answer it for free, or is it pretty involved?

She probably won'tbe able to. That would be arson or some god darn thing like that, and she could easily take the house without having to do some illegal act according to most probate codes. Although there are uniform probate codes, you should check the state where this takes place.

Or just go get a beer. I think that's what I'm going to do.

Southern Lady said:

Thanks for responding, Bruce.

My main character inherits an old house on a lake in the Midwest, but the stipulation is that she burns the house down. Of course I don't want her to do that so I have to get around it.

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Neat! I like the book already. Let me know when it's on the street.

What's the penalty if she doesn't burn it down? Does it revert to probate or go instead to her life-long arch enemy Melanie McCracken who beat her out in cheerleading tryouts all those years ago? (Sorry if I'm spoiling your plot...)

Parkinsonsd said:

She probably won'tbe able to. That would be arson or some god darn thing like that, and she could easily take the house without having to do some illegal act according to most probate codes. Although there are uniform probate codes, you should check the state where this takes place.

Or just go get a beer. I think that's what I'm going to do.

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So...what kind of beer?

Southern Lady said:

Thanks for responding, Bruce.

My main character inherits an old house on a lake in the Midwest, but the stipulation is that she burns the house down. Of course I don't want her to do that so I have to get around it.

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If it's really an old house that hasn't been kept up or is unsound and even dangerous to live in, destroying the house might be a "reasonable" requirement. I saw an old house on the side of the road next to the entrance of a new subdivision - one Saturday morning I went by and there were a few police cars and a fire truck at the house, and in the afternoon drove by and it was burning, with the firemen and police standing around watching it - the developer apparently didn't want to fool with it and "donated" it to the fire department for them to safely burn down and dispose of. The chimneys remained standing for several more weeks.

OTOH, attorneys make their livings arguing against such stipulations in contracts, wills and such, and often enough they win the case. There's likely a forum for attorneys where you could ask this question, and they may give you a "reasonable" argument a fictional attorney could use to challenge the will in court so she could get the house and property without having to burn the house. Presuming she plans to live in it or especially if she rents it out, she may have to spend some money on it to bring it up to local safety codes related to electrical wiring, furnace, having smoke detectors and such.

IANAL, but I have just enough knowledge of the law to be dangerous.

Generally speaking (although the details of probate vary substantially from state to state, while the basic tenets remain the same, but you'd need to double-check the relevant state law), a will provision that requires a criminal act (arson) is unenforcable and it would be fairly simple to get a judge's ruling to that effect. I believe, although it's not really within my expertise (I have probate law experience, not criminal law experience), that arson includes torching one's own building, even if it's not a fraudulent act (i.e., to collect on insurance), b/c of the risk to firefighters and abutting property owners' assets.

The only legal way I can think of to burn down a building is to arrange for the local fire department to do a controlled burn for practice and training, depending on whether there are any hazardous substances (e.g., lead paint, which will be in most houses built before 1970 or so, or asbestos) in it. If so, the hazardous substances would have to be removed first. And the house would have to be distant from other buildings, etc., so as to avoid any other risks, and meet whatever other safety requirements they have. I'm not even sure a fire department would agree to do such a thing, b/c that's outside my expertise.

I don't know why it has to be a fire, unless it's to destroy some evidence in the house. If it's just to eradicate a place that the testator has bad memories of, it would be more credible to require that the building be demolished. And then you'd have to address the question of why the testator didn't do it himself during his lifetime, which is also true of the fire -- why didn't the testator arrange it?

Come to think of it, there's also a legal concept -- the technical name of which eludes me -- that criminalizes wanton destruction, even if it's of one's own property, so not only arson but also demolition might be a criminal act, depending on the circumstances. If the house is decrepit, requiring that it be demolished would be legal, but if it were in mint condition, there might a problem with this concept. If I can think of the term later, I'll post it.

JD, not giving individual legal advice, just general information.

I would have thought it would be a very unusual circumstance for a fire department to have a controlled burn in a residential area. Mind, you say it's on a lake in the midwest. If it's in an isolated area, would anyone know if she'd set fire to it, or it had caught fire by accident? Especially if she waited until it was half gone and then called the fire department. But would she want to admit to it, which I guess would be needed to inherit it? And then, who would want to inherit a burned-out house anyway?

I think I'm rambling, so I'll shut up.

Arson is the destruction of property that is A> either not yours or B> for some fraudulent profit - such as insurance.

However, destroying by fire anything that you actually own and do not intend to collect on is not arson. It's just damned stupid.

Though, it's a good question why the deceased person didn't destroy the house in their own lifetime - or destroy the evidence, bad stuff whatever. I can think of some reasons why it could happen but that's not your plot.

Rabe...

It may vary from state to state, but at least in Massachusetts, arson is simply defined as burning a dwelling. Doesn't have to be someone else's or for fraudulent reasons.

Here's the relevant section of the Mass. statute:

"Whoever wilfully and maliciously sets fire to ... a dwelling house, ... whether such dwelling house or other building is the property of himself or another and whether the same is occupied or unoccupied, shall be punished by imprisonment in the state prison for not more than twenty years, ... "

JD

I sent a pm to you in case you still want to touch base with an attorney. He's always great at sending people comments about their writing (he runs several contests on his writing site)

I'm sure he'd be happy to get an email from you.

Perhaps the house is haunted, and to collect the inheritance she has to spend the night... okay, nevermind.

beezle said:

Perhaps the house is haunted, and to collect the inheritance she has to spend the night... okay, nevermind.

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*whap*

Okay, we're all better here.

JanDarby said:

don't know why it has to be a fire, unless it's to destroy some evidence in the house.

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Now, there's a hook! This opens some cool possibilities.

Or, the house is a place full of delightful childhood memories, and this is a final act of spite on behalf of the deceased toward the inheritor, who was the one with all the delightful childhood memories.

JanDarby said:

It may vary from state to state, but at least in Massachusetts, arson is simply defined as burning a dwelling. Doesn't have to be someone else's or for fraudulent reasons.

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Right, and even if it's not technically arson, it's probably a violation of some other statute. Fires are dangerous, they can spread to other buildings or to forests, etc.... and even if there's no law specifically about burning your own house down, there may be more general laws prohibiting doing anything that might recklessly endanger someone else's life or property. Because of the risks involved in burning your house down--risks to adjacent forests, farmland, houses, boats, whatever, not to mention risks to firefighters brought in to control the blaze--some law or other (whether or not it's the arson law) is going to be invoked to charge the homeowner.

Or in this case, the homeowner can find some law somewhere--maybe the arson statute, maybe something else--that gives her a legal argument that "it would be illegal to enforce this will as written, so I should get the house without having to burn it down."

Maybe the area is considered the "greenest" in the country with the laws to prove it. Deliberately torching a building would violate the stringent air pollution laws.