Lex

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Viewing 15 posts - 151 through 165 (of 195 total)
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  • in reply to: juvenile court protective order #3381
    Lex
    Keymaster

    We can’t give advice based on sketchy fact situations, but juvenile court usually issues orders of a temporary nature.

    District court (or family court in parishes that have a family court) has original jurisdiction to decide custody matters. So, yes, filing for custody and/or visitation and to establish the proper amount of support would be done there.

    in reply to: Becoming a Notary #3380
    Lex
    Keymaster

    I’m going to send a message to someone who can answer your questions.

    in reply to: Is it OK for an attorney to tell their clients who lie? #3367
    Lex
    Keymaster

    Sorry I missed seeing this.

    Yes, Attorney “A” could get in real trouble.

    Now, the real question is how believable the comments made by “Client 1” are. Attorney “B” might have dismissed what the client said out-of-hand based on his knowledge of the situation and of the person.

    However, assuming the accusation was credible and Attorney “B” did nothing, then that would be grounds for a disbarment proceeding and possibly criminal charges.

    in reply to: Donations and medicaid #3365
    Lex
    Keymaster

    Yes, but any alienation of a family home converts it from a non-countable asset to a countable asset.

    They may be looking at a partial transfer as counting the same as if the whole house was transferred.

    Another thing they do is count a usufruct as being a countable asset for income purposes.

    in reply to: Donations and medicaid #3363
    Lex
    Keymaster

    Is it clear to them that this was Mom’s separate property? Medicaid people tend to go down the path of least resistance and heaven forbid that they might think things through.

    It always has to be spelled out for them.

    in reply to: Louisiana Small Estate Affidavit #3362
    Lex
    Keymaster

    The Small Succession Affidavit law has no provision for relinquishing a usufruct. However, the person having a usufruct is free to relinquish it at any time. So, this could be done before or after a Small Succession Affidavit.

    One thing to consider is that the existence of a usufruct reduces the value of an estate. If the estate is anywhere close to the $75,000 limit, it might be a good idea to wait until after the affidavit is done so that the value of the estate can be kept as low as possible.

    The value of a usufruct is calculated based on the age of the usufructuary. The actuarial tables that were used when we had an inheritance tax are still the best way to figure out the usufruct value.

    As for the time involved, that is simply a matter of preparing the affidavit and getting it signed by all the heirs. The courts are not involved.

    in reply to: House in danger of tree falling #3357
    Lex
    Keymaster

    The homeowner actually owns the property and the tree that the easement runs across. An easement, or “servitude” as it is more properly known in Louisiana, is just a limited right to have access to the owner’s property for purposes of maintaining the utility or utilities.

    Generally speaking, an owner is only responsible for a tree falling if he knew, or should have known, that there was a condition that would reasonably lead someone to believe the tree was a danger. Like rotting, for example. If it just a matter of wind blowing it over, then that is an act of God that an owner is generally not liable for.

    If the tree is leaning in a dangerous manner, then it should be reported to the owner. The owner would then be “on notice” that there may be a dangerous condition. It would do no harm to also notify the utility companies. If any utility is above ground and could be damaged, they would be more inclined to do something.

    in reply to: Deposit in lieu of Tenant cleaning up #3355
    Lex
    Keymaster

    And was any of this in writing? I don’t necessarily mean the lease itself.

    Can the tenant prove they actually paid a deposit?

    These would be key factors.

    in reply to: Forced Heir Share #3354
    Lex
    Keymaster

    But should “tradition” outweigh utility and common sense?

    Why should tradition require that a surviving spouse have to go through a succession to get the title to their family home vested in him/her when husband or wife dies?

    Don’t get me wrong. As a lawyer over the years I have made plenty of money as the result of traditions like this. And yet, I still apologize to the victim of tradition when I tell the widow who has lived in the family home for years after her husband dies that I have to do a succession because she can’t sell what she thought was her home. “Sorry, it is only half your home until we spend some time and a good bit of money going through the forced heir minefield and the rest of the nonsense involved in a Louisiana succession.”

    All it would take is a bit of legislation to fix this problem. I have talked to a few legislators about this and frankly, since the legislators I talked to are also lawyers, I think the main resistance is more the money aspect, not tradition.

    Sorry. After very recent national events, I’m a bit down on the system and how absolutely corrupt it is -from the top on down.

    in reply to: Property cleanup #3345
    Lex
    Keymaster

    Well, if a tenant is in possession of the residence then yes, you do have to evict through the courts.

    It is a gray area where it seems the person is gone, but there are still some personal possessions. If the person has actually abandoned the property and moved on, then you do not have to evict.

    If the person was still in possession and you changed the locks without court approval, then you could be subject to damages.

    You might want to see a lawyer about his.

    in reply to: Process to find and change succession attorney #3344
    Lex
    Keymaster

    Normally you would have a new attorney file a motion to enroll as counsel of record and the old attorney would withdraw. Usually both attorneys would sign off on this and arrangements would have been made to see that fees are taken care of and the new attorney then continues with the case. If there is some reason the old attorney cannot or will not sign, then the reason would be in the motion and the new attorney could still take over.

    Most of the time the old attorney would offer some referrals, but that does not have to be the case.

    If you live where there is a local bar association, you could call them for a referral. Absent that, there are always the Yellow Pages. I always feel that finding a lawyer through the recommendation of a friend or family member is the best way to go.

    So, the procedure to change attorneys is generally called a motion to enroll as counsel of record. First choose a lawyer and then the new attorney would handle all of this.

    in reply to: Lemon Law in Louisiana #3342
    Lex
    Keymaster

    It applies to car purchases or leases from dealers only. The vehicle must also come with an express warranty from the manufacturer and the vehicle cannot be used exclusively for commercial purposes.

    That is not to say that you cannot get out of a sale of a car that is defective even if the “Lemon Law” does not apply -that is, you bought it from an individual and the vehicle is so defective that you would not have bought it had you known of the defects (this is traditional “redhibition” language that applies to almost all sales.

    Were there any limits on warranty or redhibition specifically stated in the bill of sale?

    By the way, the lemon law can follow the sale of a used car if the car was still under warranty and if you purchased from the original owner. Also, there are time limits on making a claim -usually the earlier of one year from delivery or from when the defect was known.

    in reply to: Property cleanup #3338
    Lex
    Keymaster

    That should be fine.

    They will make contact with the owner and if there is no reply, or if they cannot make contact after reasonable efforts, then they will be able to auction or scrap it.

    in reply to: Property cleanup #3336
    Lex
    Keymaster

    There are procedures for removing a vehicle from your property. To be safe, do you have any way of sending notice to the owner? Is there a registration or something in the glove compartment?

    Towing fees can be expensive. Once towed, the towing company has an obligation to notify the owner before they can dispose of the vehicle. They are able to track down the registered owner by the VIN. But still, you are out the towing fees.

    There is also this site that claims they can provide a name and phone number from the VIN. I don’t vouch for this, but it might be worth a try: https://thatsthem.com/vin-search

    The VIN is visible from the outside at the bottom of the windshield.

    in reply to: What is advantage of QDRO? #3328
    Lex
    Keymaster

    Yes, but…

    Keep in mind that not having a QDRO always is a disadvantage for the non-participant spouse (the person not employed be the company).

    The reason is simple: the participant spouse (the employee) gets the whole pension or benefit if the QDRO is not done or if it is not done properly.

    So, it would be hard to see any benefit for Bluto to pay thousands to get this done.

    But the overriding fact is still the same, a QDRO is only necessary where a benefit plan is being divided in some manner. If the participant is getting the entire plan, then a QDRO is not required.

Viewing 15 posts - 151 through 165 (of 195 total)