Lex

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  • in reply to: Voluntary termination of father’s rights #4182

    Lex
    Keymaster

    He can have whatever custodial arrangement he wants, but that has nothing to do with support -as you mentioned.

    The real problem is once you enter into some agreement, the more time that goes by the more he will be stuck with the status quo. So, if he regrets not seeing his kids at some point, there may be nothing he can do. Plus, in my experience, it will not stop stalking behavior.

  • in reply to: Louisiana contract term length #4180

    Lex
    Keymaster

    It would take a visit with a lawyer to look at the details.

    Yes, it is against public policy to allow contracts of uncertain length and the contract could be voided on that basis. This is generally done by looking at all the surrounding facts to determine what is “reasonable” as to length of time.

    One other aspect here is that many, many contracts are drawn up to make a person believe that they are in a legal trap when, in fact, they may not be -and the person preparing the contract knows that full well. These are generally know as contracts of adhesion -a contract where the writer of the contract has all the bargaining power.

  • in reply to: Libel #4179

    Lex
    Keymaster

    Well, slander is defamation by spoken word while libel is defamation by written word.

    In any defamation case, the defense is truth. If what was said/written was true, then there is no defamation.

    A wrinkle here is that (in very general terms) a tort (libel is a tort) has to have court action brought within a year while contractual issues generally have a longer period of time that they can be brought to court. If the letter was done more than a year ago, then it might not be admitted in court. The contents of the letter, however, could be admitted in evidence to prove other facts about the person -like his believability.

  • in reply to: can we live on the land ? #4178

    Lex
    Keymaster

    Was there a succession? Was land “given” prior to his death? If not, the title to the land would be uncertain and nobody would have any legal right to give a portion or all of it away.

  • in reply to: child custody and child support #4177

    Lex
    Keymaster

    That is always possible depending on many factors. After all, there are plenty of fathers paying child support even when they have no custody at all.

  • in reply to: Forced Heirship -46 years later #4176

    Lex
    Keymaster

    In the seventies all children were forced heirs. In this case, without a will, the mother would have her half of the community and the children would inherit all of Dad’s part of the community. Mom would inherit a legal usufruct over the portion belonging to the forced heirs.

    So, the children would be considered naked owners of the one-half belonging to the father -subject to a usufruct to Mom, that would terminate upon death or remarriage. At that time, the naked owners would own outright what they had all these years as naked owners.

    The real-world problem in these cases is that it will be hard to figure out 1) what was owned by father that Mom has a usufruct over and 2) to what extent any changes over the years belongs to her estate or his estate at the end of the day. Much of this would be determined by her will -but she cannot will away that which she does not own. In other words, her usufruct terminates when she dies and that property goes equally to children. Her will can only apply to what she had back when Dad died.

    You need to see a lawyer about this because there is alway the aspect of someone with a usufruct mis-using the assets that belong to the naked owners. It is possible to terminate a usufruct on that basis and a lawyer would have to advise as to where that is a good avenue. If that is done, the person with the usufruct would have to account to the naked owners for how “their” part of the estate has been handled. It may not be worth the legal fees and aggravation. The only thing that is certain here is that trying to go back over thirty or forty years of transactions will be difficult.

  • in reply to: Forced heirship-conflict in a family #4175

    Lex
    Keymaster

    Well, in the first place we cannot give “advice” we can only discuss the relevant law in non-specific ways.

    That being said, there are two ways to go here. One, as you already know, is for the two of you to give up 2.5% each of your shares.

    The other thing you might look at is whether your sister got anything outside probate that could be counted towards the forced portion. That might be life insurance, IRAs and thing of that nature that pass outside the Succession.

    The Bi-polar cases were decided the way they were because there was expert testimony that indicated that even if the potential force heir was not disabled now, there was a significant chance they would be disabled “one day.” So, not quite automatic but probably close.

    You can thank the geniuses on our Legislature for throwing in the bit about a forced heir is anyone who, because of an inherited medical condition, might become disabled somewhere down the road. We lawyers warned that this was going to lead to litigation.

    The forced portion is the forced portion and the disinherison aspect of the other Bi-polar cases should be irrelevant.

  • in reply to: Do I need a permit #4157

    Lex
    Keymaster

    There is so much variation in permitting from one jurisdiction to another that it really takes checking with your local permit office to see what their take on this would be.

  • in reply to: Inheritance for adopted children #4156

    Lex
    Keymaster

    Legally adopted children and naturally born children are treated exactly the same under the law.

    So, if a naturally born child is no longer a forced heir upon reaching age 24, it is the same for adopted children.

    Absent permanent disability, a child over the age of 23 can be left out in a will.

  • in reply to: Creditor Claim Against Unopened Succession #4147

    Lex
    Keymaster

    Sometimes the motivation in filing a proof of claim in the mortgage records is to put third parties on notice that a claim exists against the deceased’s estate. That notice could be general in nature, not necessarily just applicable to real estate. The notice can include a request that the Clerk of Court provide notification in the event a succession is opened.

    Any “interested party” can open a succession -and that includes creditors. Sometimes a creditor may doubt that the deceased has enough assets to justify the creditor going to the expense of opening the succession, so they will go the claim route.

  • in reply to: LTC – Medicaid – Land donation #4146

    Lex
    Keymaster

    Sorry, I missed seeing this post until now.

    The folks at Medicaid can be unpredictable as to how they might view a particular transaction.

    If property is an exempt asset, like the family home, then alienating the property in any way could be considered converting an exempt asset into a countable asset. For example, you donate your home worth $200,000 to a relative. That exempt asset (the family home) is now a cash asset which has no exemption. Medicaid at that point would terminate eligibility and would tell you that you have to “spend down” $200,000 before you become eligible again.

    So, if you aren’t talking about donating the family home but just some other property in which she has an interest, then it should have been considered an asset when she applied for Medicaid. If it was not disclosed as an asset, then there could be a problem. It could also be that the partial interest was disclosed, but Medicaid might have considered a partial interest with several co-owners as having no real value. It is hard to say without the details, but it would never have been considered exempt so donating it should not matter. Again, it depends on the details.

  • in reply to: Heirship How do I submit to active succession case #4142

    Lex
    Keymaster

    The diagram:

    Order of Succession

  • in reply to: Heirship How do I submit to active succession case #4136

    Lex
    Keymaster

    Initial paperwork did not any heirs

    Does that mean that a succession was opened and that an Affidavit of Death and Heirship was filed? That is usually what someone means when a list of heirs is mentioned.

    Now, that being said, only heirs (called “legatees” if there is a will) that would inherit are usually mentioned. If there are children, spouse, and so on, then cousins, etc., would not be listed anywhere in the succession because they would not stand to inherit anything.

    If that is not the case and there are heirs who should be listed because there are no closer relatives, then someone needs to intervene in the succession. Unfortunately, that would require hiring a lawyer to do it properly.

  • in reply to: Child support on lawsuit? #4134

    Lex
    Keymaster

    Seems hard to believe, doesn’t it?

    In any event, if he did, then he did.

    I would think the burden would be on him to show that he did not receive any personal benefit from the $3 million -that it was spent or owed in medical bills.

  • in reply to: Child support on lawsuit? #4131

    Lex
    Keymaster

    There are different ways to look at this.

    Was lost income part of the settlement? That can always be included.

    What income could reasonably be expected from $3 million if invested? That is another way to include it.

    Any court would expect assets to be productive of income and will often just attribute a reasonable amount whether invested or not.

Viewing 15 posts - 1 through 15 (of 186 total)