On Jul 24, 7:29 am, bg...@nyx.net (Barry Gold) wrote:
> Seth <se...@panix.com> wrote:
> >Barry Gold <bg...@nyx.net> wrote:
>
> >> . a written contract is "official" when both (all) parties have
> >> signed it and handed the signed copy back to the other party.
>
> >I think it becomes enforceable when all parties have signed it.
>
> Maybe. Granted, Perry Mason isn't exactly black letter law, but Gardner
> _was_ a lawyer IIRC. I remember one book where Mason demonstrated the
> "signed, [sealed], and delivered" thing by signing a contract that was
> way in the other person's favor. But he pointed out that he hadn't
> actually delivered it to the other person.
We're getting way off the track of the thread here. OP was asking about wills, trusts, and articles of incorporation.
As to contracts, a binding agreement is formed as soon as there is a meeting of the minds to make a deal, created by offer, acceptance, and consideration, whatever form each of those takes, and whether or not it is in writing, unless a writing is required by the Statute of Frauds. I think what is mixing most posters up on that issue is, how to determine what constitutes a "writing" sufficient to satisfy the SOF where that requirement applies. Generally, anything signed by the person who is sought to be bound, indicating that an agreement exists, whether or not it does or purports to contain all the terms of the agreement (i.e. an "integration") is sufficient when used by the other (non-signing) party to enforce the agreement. The only reason a written "contract" (which I put in quotes because the legal contract consists of the subject matter on which the parties' minds have met, not the writing memorializing that agreement, even though the word is used interchangeablyto denote both) would be signed by both parties is if both parties want to make sure the other party can be bound to fulfill any presently unexecuted promises contained therein. If one party has already performed, e.g. by payment, it is only the party who has yet to perform who has to sign the form agreement, in order to be bound by it, if the first party decides to sue for breach. Of course, for practical purposes that means a copy of the signed agreement or memorandum must be in the hands of the enforcing party, but there is theoretically no prohibition on a party who does not have a copy of the agreement suing for breach if he can obtain a copy from the defendant in discovery. I don't believe "delivery" is a specific requirement for enforceability of a contract, although "acceptance" is, and "delivery" may be a form of "acceptance" depending on the circumstances. OTOH if the bound party simply communicates his acceptance to the other in a different way, e.g. by telephone or email or in person, but fails to deliver a copy of the signed contract, you may still have a contract.
Now, as to wills, trusts, corporate articles and such, each state's requirements for a valid document differ, which is why I strongly suggested OP consult a lawyer to help him draft and file these, if this was not just an idle hypothetical.
One other kind of document, which may be what Perry Mason's case was about, is a deed. A deed (or, e.g. title certificate to a car) is not effective to transfer title until it is delivered.
Or, it could simply be that Perry was arguing the failure to deliver the paper meant that the defendant had not yet accepted the offer even though he had privately signed the form.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Thursday, August 16, 2012
Brother won't disclaim house on Mom's Will
On Jul 23, 7:11 am, George <gbecc...@gmail.com> wrote:
> I will be executor for my mother. One provision of her will left some
> property to my brother, which he is unsure whether he wants.
First of all,, my condolences on your mother's passing.
Second of all, is your brother usually so indecisive, or is he just taking advantage of your kindness and good will?
Whichever the answer is, it will likely continue indefinitely unless you do something about it.
You have a lawyer. You mention below that he tells you "how" to transfer the property, but you don't say whether he has already suggested to you "what" to do. Unless you're leaving something out, I'm not sure you've been fully informed of the consequences, to YOU and to the estate, if you take steps that differ from the dictates of Mom's Will. In other words, did you know you could be held personally liable to your brother, all else being equal, if you just go ahead on your own and sell the property to a third party, and then your brother comes along and says, "Where's the house Mom left me?" So you need to make your BROTHER be the one who has to fish or cut bait. Didn't your lawyer tell you this already?
> If he
> doesn't take it, we would need to do some substantial repairs to make it
> saleable. I don't want to go ahead with spending other estate funds on
> these repairs, and then have him decide that he does want it, after all.
Right. Because then Bro would have been unjustly enriched, at the expense of all the other heirs who helped pay for the repairs to his new house. Or else you would have to back those costs out somehow, from the rest of Bro's share. If the house is the only thing Bro gets, that would be tough to do.
> I'd also like to keep things moving.
Right. So would the probate court, which probably has given you a deadline to make a final distribution and close probate. Here's my suggestion: put this all in writing. Tell your brother that Mom's Will says he gets the house, and you're getting ready to make a final distribution. Tell him he has to either inform you, in writing, that he is waiving his claim to the house, BY A FIXED DEADLINE not too far in the future and on a form (drafted by your lawyer) that YOU PROVIDE him, or else you will have no choice but to go ahead with the terms of Mom's Will and deed the house over to him, "as-is". Then he will be the one who will have to deal with the white elephant, not you. Meanwhile, you will have done everything exactly according to Mom's Will and no one will have any grounds to complain.
You didn't mention, so we don't know whether Mom's Will provides some alternate bequest to Bro if he declines to accept the house. Your state's law may also provide that in the event he turns it down, you should sell it and Bro should get the cash value of the sale (minus any costs you had to put into it from estate funds to make it saleable, and the costs of sale, such as realty commissions, fees, etc.) If it doesn't, IMO you have no power to take anything from the other heirs' bequests to give something to Bro, unless all heirs and potential heirs consent in writing, and even then it's probably a bad idea to do so. In any event, consult your lawyer and follow his specific advice, which I'm sure has gone something along these lines if you've been paying attention.
> Our attorney said (in passing) that I could do an "executor's deed".
> But, in what I've read about that, it looks like it's just what the
> executor does to tranfer title to a new owner - it's not clear that it
> gives me any particular power to force him to take the property or
> disclaim it.
Maybe you're not understanding what he's saying, or not asking him the right questions so he doesn't know you have an issue. It sounds like he has advised you to DO an executor's deed, and transfer the house to Bro; it sounds like he is already recommending that course of action. Why would you think this is just an intermediate step? Once you deed the house to Bro, it's his, period. So if you still want to give Bro some chance to change his mind and decline the house, you need to run that by your lawyer ASAP and see what he says to do in that situation. My guess is he'll propose a fish-or-cut-bait letter to Bro, unless you've already been down that road and Bro has already ignored it, in which case it's time to cut the bait.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I will be executor for my mother. One provision of her will left some
> property to my brother, which he is unsure whether he wants.
First of all,, my condolences on your mother's passing.
Second of all, is your brother usually so indecisive, or is he just taking advantage of your kindness and good will?
Whichever the answer is, it will likely continue indefinitely unless you do something about it.
You have a lawyer. You mention below that he tells you "how" to transfer the property, but you don't say whether he has already suggested to you "what" to do. Unless you're leaving something out, I'm not sure you've been fully informed of the consequences, to YOU and to the estate, if you take steps that differ from the dictates of Mom's Will. In other words, did you know you could be held personally liable to your brother, all else being equal, if you just go ahead on your own and sell the property to a third party, and then your brother comes along and says, "Where's the house Mom left me?" So you need to make your BROTHER be the one who has to fish or cut bait. Didn't your lawyer tell you this already?
> If he
> doesn't take it, we would need to do some substantial repairs to make it
> saleable. I don't want to go ahead with spending other estate funds on
> these repairs, and then have him decide that he does want it, after all.
Right. Because then Bro would have been unjustly enriched, at the expense of all the other heirs who helped pay for the repairs to his new house. Or else you would have to back those costs out somehow, from the rest of Bro's share. If the house is the only thing Bro gets, that would be tough to do.
> I'd also like to keep things moving.
Right. So would the probate court, which probably has given you a deadline to make a final distribution and close probate. Here's my suggestion: put this all in writing. Tell your brother that Mom's Will says he gets the house, and you're getting ready to make a final distribution. Tell him he has to either inform you, in writing, that he is waiving his claim to the house, BY A FIXED DEADLINE not too far in the future and on a form (drafted by your lawyer) that YOU PROVIDE him, or else you will have no choice but to go ahead with the terms of Mom's Will and deed the house over to him, "as-is". Then he will be the one who will have to deal with the white elephant, not you. Meanwhile, you will have done everything exactly according to Mom's Will and no one will have any grounds to complain.
You didn't mention, so we don't know whether Mom's Will provides some alternate bequest to Bro if he declines to accept the house. Your state's law may also provide that in the event he turns it down, you should sell it and Bro should get the cash value of the sale (minus any costs you had to put into it from estate funds to make it saleable, and the costs of sale, such as realty commissions, fees, etc.) If it doesn't, IMO you have no power to take anything from the other heirs' bequests to give something to Bro, unless all heirs and potential heirs consent in writing, and even then it's probably a bad idea to do so. In any event, consult your lawyer and follow his specific advice, which I'm sure has gone something along these lines if you've been paying attention.
> Our attorney said (in passing) that I could do an "executor's deed".
> But, in what I've read about that, it looks like it's just what the
> executor does to tranfer title to a new owner - it's not clear that it
> gives me any particular power to force him to take the property or
> disclaim it.
Maybe you're not understanding what he's saying, or not asking him the right questions so he doesn't know you have an issue. It sounds like he has advised you to DO an executor's deed, and transfer the house to Bro; it sounds like he is already recommending that course of action. Why would you think this is just an intermediate step? Once you deed the house to Bro, it's his, period. So if you still want to give Bro some chance to change his mind and decline the house, you need to run that by your lawyer ASAP and see what he says to do in that situation. My guess is he'll propose a fish-or-cut-bait letter to Bro, unless you've already been down that road and Bro has already ignored it, in which case it's time to cut the bait.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Dad's Will and Stepmom, part 2
On Jul 21, 1:11 pm, RJ <ss33s...@removeyahoo.com> wrote:
> Mike Jacobs wrote:
> > On Jul 14, 7:43 am, RJ <ss33s...@removeyahoo.com> wrote:
> >> Dad bought a house (Florida) jointly with his future wife.
<snip>
> > How long ago did Dad die? And are you sure
> > the FL house was meant to be included in Dad's Will?
<snip>
> About three years. Yes, the house was specifically mentioned in the
> will. I did not include that part of the will in my post. The will
> states, "The property is jointly titled as tenants by the entirely". In
> my previous post I assumed that was jointly owned.
"Tenants by the entireties" (note spelling) is an old form of joint tenancy with right of survivorship available only to married couples, still recognized in some states. Its legal effect is basically the same as JTWROS as far as your situation is concerned (the main difference being that TBE property cannot be seized or forced into partition by a judgment creditor unless he holds a judgment against _both_ spouses). As I and several others have already mentioned, property owned as JTWROS or TBE does _not_ pass by means of probate of a decedent's Will; rather, title to it automatically, by operation of law, passes to the surviving joint owner, immediately upon the death of the other owner. That means, as soon as Dad died, Stepmom owned the house free and clear of any obligation under Dad's Will to his children, regardless of what Dad's Will says. There are only 2 things I can think of off the top of my head (there may be more, but you're not paying me for this, and I'm doing this for discussion purposes only) that may change this result:
(1) As mentioned in my original reply, if Stepmom's Will is in a form that her state recognizes as a binding joint Will with Dad, or if she had signed some kind of legally enforceable binding contract with him to that effect, she would not be allowed to change her Will to the detriment of the beneficiaries therein, and thus her executor would still be bound, after her death, to pass along to you and your siblings the cash value of the house, but that would be because it was required by the terms of _her_ Will, not directly by Dad's.
(2) If, as you state, Dad and Stepmom purchased the house _before_ they were married, but nevertheless claimed title as TBE, a clever lawyer _may_ be able to argue that such title was ineffective because they were not married yet, thus converting the form of ownership into plain old tenants-in-common, in which case each spouse owned an undivided half interest in the whole house but Stepmom did _not_ automatically gain ownership of the whole thing when Dad died. I have no clue whether this idea might hold water, but you might want to mention it to your independent lawyer (NOT the one who drafted the Will) and see what he thinks.
> > When a Will refers to "the property" it generally means _all_ the
> > things a person owns,
<snip>
> > a Will is only effective as to
> > property that forms part of the probate estate, and has no effect on
> > property that passes outside of probate, such as jointly owned
<snip>
> The will is specific towards that property and includes the address of
> said property
It bears repeating often, since you seem to be ignoring the issue: regardless of what Dad's Will says, the house does _not_ get included in Dad's probate estate as part of the property he owned at death, to be distributed by means of his Will, if in fact Stepmom was a JTWROS or a TBE. In that case the property now belongs to her alone.
> >> It is our intention
>
> > What does this mean, "our"? A Will is usually "my" not "our"
<snip>
> > If your Stepmom ... and Dad had
> > a mutually binding contract to draft identical Wills, or a single
> > joint Will, then that may be different. But your post didn't say
> > anything about Stepmom's will
<snip>
> Our in this case means him and his wife. That is the way it reads. I
> don't know what her will says.
If you don't know what her will says, then we are talking in circles. You need to either find out -- by talking with the lawyer that drafted Dad's will -- or wait until she dies. Specifically, you may want to ask the original lawyer how he planned to accomplish Dad's bequest of the house to you and your siblings given that you understand title to the house passed to Stepmom as TBE. Did they have binding joint Wills, or was there a binding contract to require Stepmom to honor Dad's intention even though she now was sole owner of the house? Have him explain how he intended to accomplish the result that your Dad obviously had in mind.
> >> I give and devise all of the rest. residue, and remainder of my estate,
> >> real, personal, and mixed, tangible and intangible, of whatsoever nature
> >> and wherever situated, to my children
>
> > If that is the _only_ bequest in Dad's will ... then it may
> > improperly deprive Stepmom of her minimum
> > statutory share as Dad's widow. She may be able to challenge the
> > will, if it ever came to probate, and insist upon her statutory
> > share.
<snip>
> I only left out the part where he names the heirs and also excludes one
> heir.
What about Stepmom? Are you sure Dad's Will makes no provision whatsoever, for _her_? As mentioned in my original reply, although you are still ignoring that issue, she could challenge it on that grounds if it ever came to probate. My guess is that the reason Dad's will never got probated is that he had no separate property and everything was jointly owned with Stepmom, so she now owns everything.
> > I doubt very much that either Dad or Stepmom intended to bind
> > themselves to never sell that particular house until after both of
> > them died; what if it got destroyed in a hurricane or flood, frex, and
> > they wanted to move someplace safer? Or it got eaten by termites?
> > Or what if Stepmom had to move into a nursing home after Dad died and
> > needed the money for he care? Or (pick your favorite reason).
The fact that specific property gets mentioned in a Will does not mean that the testator promises never to sell it or transfer title to someone else before he dies. If Dad's Will said, "I bequeath my 1971 Oldsmobile to my son" but he had traded the '71 in on a hot new '72 Mercury either before or after writing the will, the bequest fails because Dad no longer owned the specific property mentioned.
> > that would IMO be a very poor decision by your Dad and Stepmom since
> > no one can predict what might happen down the road. Their first
> > concern should have been to make sure each other was taken care of,
> > and only after that should they worry about dividing what is left
> > between the 2 families.
>
> I don't know what else they provided for each other in terms of security
> down the road. Yes, this house was specifically by address mentioned
> in the will. I did not include that part of the will. True, sounds
> like a bad idea. She was taken care of in term of health care and
> pensions, etc.
But was she mentioned in the Will as receiving any bequest at all? You still are failing to address that important issue. It sounds like Dad's Will said nothing about Stepmom. In that case, you may have a significant problem in getting all of the bequests fulfilled because Stepmom could disclaim the Will and demand her statutory share, and you would need to discuss that point with the original lawyer too.
> > "Probate" occurs when the Will is submitted to the
> > authorities for appointment of an Executor (maybe that's where the
> > confusion arises) as they are called in some states, empowerment of
> > the Executor to collect all the decedent's assets, pay his debts, and
> > propose a distribution in accord with his Will, and approval by the
> > authorities of the proposed distribution. None of that is necessary
> > if everything was jointly held so there is no solely-owned property
> > that passes by means of the Will.
>
> Correct. I don't know what was or how it was held. Should there have
> been an accounting?
Not unless the Will was submitted to probate. It would not have been, if everything Dad and Stepmom owned was jointly titled so that she got everything when he died.
Please note that this does not necessarily mean the original lawyer screwed up. If Dad had all his property re-titled jointly _after_ the Will was drawn up, he may unknowingly have disinherited his children by doing so. Lots of people, including you apparently even after being told by several posters here, don't seem to know that this is what happens when property is held by JTWROS: it doesn't matter in that case what the Will says.
> >> and I have no clue as to what his assets
> >> were.
>
> > Then I repeat, you have shown no facts to indicate anything at all
> > even had to pass by means of Dad's Will. Maybe he had _no_ separate
> > assets, which would not be at all unusual. That would mean that title
> > to everything automatically passed to Stepmom when Dad died so it was
> > not necessary to submit anything to probate.
>
> I've shown that the house passes via the will.
No, you haven't. The house only passes by the Will if it was Dad's separate property. What you have shown is that it was JTWROS or TBE property and thus you have affirmatively shown that it does NOT pass via his Will, unless there is some loophole a clever lawyer might discover for you.
> >> Does the
> >> lawyer that wrote this document have any liability here?
>
> > He might, if he screwed something up, but nothing so far in your post
> > convinces me he did so.
>
> The value of the house was to be divided upon the death of the last of
> them. This can no longer be done, since the asset is gone.
Which, as discussed above, may be the result of something your Dad did AFTER the Will was drafted and which the lawyer had no control or knowledge about. Or maybe not. You're certainly entitled to call the original lawyer and ask. He may or may not be obligated to tell you.
After you talk to the original lawyer, if you're not satisfied with the answers, or even if they do make superficial sense, you may want to pay for the time of another, independent lawyer to give you a second opinion. The second lawyer may tell you yes, everything is Kosher and it's your Dad who screwed up, not the lawyer; or he may find something fishy in the whole setup and offer to go to work for you to investigate further and try to protect your rights. See if you can find a lawyer who would be willing to work without substantial payment up front, either on a percentage contingency, or waiting until you do get an inheritance to take his hourly fee or flat fee out of that money. Be sure you fully understand whatever fee structure is proposed and feel it is fair; you're certainly allowed to negotiate, or to do comparison shopping, BEFORE you sign anything retaining that lawyer to be your advocate in this matter.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Mike Jacobs wrote:
> > On Jul 14, 7:43 am, RJ <ss33s...@removeyahoo.com> wrote:
> >> Dad bought a house (Florida) jointly with his future wife.
<snip>
> > How long ago did Dad die? And are you sure
> > the FL house was meant to be included in Dad's Will?
<snip>
> About three years. Yes, the house was specifically mentioned in the
> will. I did not include that part of the will in my post. The will
> states, "The property is jointly titled as tenants by the entirely". In
> my previous post I assumed that was jointly owned.
"Tenants by the entireties" (note spelling) is an old form of joint tenancy with right of survivorship available only to married couples, still recognized in some states. Its legal effect is basically the same as JTWROS as far as your situation is concerned (the main difference being that TBE property cannot be seized or forced into partition by a judgment creditor unless he holds a judgment against _both_ spouses). As I and several others have already mentioned, property owned as JTWROS or TBE does _not_ pass by means of probate of a decedent's Will; rather, title to it automatically, by operation of law, passes to the surviving joint owner, immediately upon the death of the other owner. That means, as soon as Dad died, Stepmom owned the house free and clear of any obligation under Dad's Will to his children, regardless of what Dad's Will says. There are only 2 things I can think of off the top of my head (there may be more, but you're not paying me for this, and I'm doing this for discussion purposes only) that may change this result:
(1) As mentioned in my original reply, if Stepmom's Will is in a form that her state recognizes as a binding joint Will with Dad, or if she had signed some kind of legally enforceable binding contract with him to that effect, she would not be allowed to change her Will to the detriment of the beneficiaries therein, and thus her executor would still be bound, after her death, to pass along to you and your siblings the cash value of the house, but that would be because it was required by the terms of _her_ Will, not directly by Dad's.
(2) If, as you state, Dad and Stepmom purchased the house _before_ they were married, but nevertheless claimed title as TBE, a clever lawyer _may_ be able to argue that such title was ineffective because they were not married yet, thus converting the form of ownership into plain old tenants-in-common, in which case each spouse owned an undivided half interest in the whole house but Stepmom did _not_ automatically gain ownership of the whole thing when Dad died. I have no clue whether this idea might hold water, but you might want to mention it to your independent lawyer (NOT the one who drafted the Will) and see what he thinks.
> > When a Will refers to "the property" it generally means _all_ the
> > things a person owns,
<snip>
> > a Will is only effective as to
> > property that forms part of the probate estate, and has no effect on
> > property that passes outside of probate, such as jointly owned
<snip>
> The will is specific towards that property and includes the address of
> said property
It bears repeating often, since you seem to be ignoring the issue: regardless of what Dad's Will says, the house does _not_ get included in Dad's probate estate as part of the property he owned at death, to be distributed by means of his Will, if in fact Stepmom was a JTWROS or a TBE. In that case the property now belongs to her alone.
> >> It is our intention
>
> > What does this mean, "our"? A Will is usually "my" not "our"
<snip>
> > If your Stepmom ... and Dad had
> > a mutually binding contract to draft identical Wills, or a single
> > joint Will, then that may be different. But your post didn't say
> > anything about Stepmom's will
<snip>
> Our in this case means him and his wife. That is the way it reads. I
> don't know what her will says.
If you don't know what her will says, then we are talking in circles. You need to either find out -- by talking with the lawyer that drafted Dad's will -- or wait until she dies. Specifically, you may want to ask the original lawyer how he planned to accomplish Dad's bequest of the house to you and your siblings given that you understand title to the house passed to Stepmom as TBE. Did they have binding joint Wills, or was there a binding contract to require Stepmom to honor Dad's intention even though she now was sole owner of the house? Have him explain how he intended to accomplish the result that your Dad obviously had in mind.
> >> I give and devise all of the rest. residue, and remainder of my estate,
> >> real, personal, and mixed, tangible and intangible, of whatsoever nature
> >> and wherever situated, to my children
>
> > If that is the _only_ bequest in Dad's will ... then it may
> > improperly deprive Stepmom of her minimum
> > statutory share as Dad's widow. She may be able to challenge the
> > will, if it ever came to probate, and insist upon her statutory
> > share.
<snip>
> I only left out the part where he names the heirs and also excludes one
> heir.
What about Stepmom? Are you sure Dad's Will makes no provision whatsoever, for _her_? As mentioned in my original reply, although you are still ignoring that issue, she could challenge it on that grounds if it ever came to probate. My guess is that the reason Dad's will never got probated is that he had no separate property and everything was jointly owned with Stepmom, so she now owns everything.
> > I doubt very much that either Dad or Stepmom intended to bind
> > themselves to never sell that particular house until after both of
> > them died; what if it got destroyed in a hurricane or flood, frex, and
> > they wanted to move someplace safer? Or it got eaten by termites?
> > Or what if Stepmom had to move into a nursing home after Dad died and
> > needed the money for he care? Or (pick your favorite reason).
The fact that specific property gets mentioned in a Will does not mean that the testator promises never to sell it or transfer title to someone else before he dies. If Dad's Will said, "I bequeath my 1971 Oldsmobile to my son" but he had traded the '71 in on a hot new '72 Mercury either before or after writing the will, the bequest fails because Dad no longer owned the specific property mentioned.
> > that would IMO be a very poor decision by your Dad and Stepmom since
> > no one can predict what might happen down the road. Their first
> > concern should have been to make sure each other was taken care of,
> > and only after that should they worry about dividing what is left
> > between the 2 families.
>
> I don't know what else they provided for each other in terms of security
> down the road. Yes, this house was specifically by address mentioned
> in the will. I did not include that part of the will. True, sounds
> like a bad idea. She was taken care of in term of health care and
> pensions, etc.
But was she mentioned in the Will as receiving any bequest at all? You still are failing to address that important issue. It sounds like Dad's Will said nothing about Stepmom. In that case, you may have a significant problem in getting all of the bequests fulfilled because Stepmom could disclaim the Will and demand her statutory share, and you would need to discuss that point with the original lawyer too.
> > "Probate" occurs when the Will is submitted to the
> > authorities for appointment of an Executor (maybe that's where the
> > confusion arises) as they are called in some states, empowerment of
> > the Executor to collect all the decedent's assets, pay his debts, and
> > propose a distribution in accord with his Will, and approval by the
> > authorities of the proposed distribution. None of that is necessary
> > if everything was jointly held so there is no solely-owned property
> > that passes by means of the Will.
>
> Correct. I don't know what was or how it was held. Should there have
> been an accounting?
Not unless the Will was submitted to probate. It would not have been, if everything Dad and Stepmom owned was jointly titled so that she got everything when he died.
Please note that this does not necessarily mean the original lawyer screwed up. If Dad had all his property re-titled jointly _after_ the Will was drawn up, he may unknowingly have disinherited his children by doing so. Lots of people, including you apparently even after being told by several posters here, don't seem to know that this is what happens when property is held by JTWROS: it doesn't matter in that case what the Will says.
> >> and I have no clue as to what his assets
> >> were.
>
> > Then I repeat, you have shown no facts to indicate anything at all
> > even had to pass by means of Dad's Will. Maybe he had _no_ separate
> > assets, which would not be at all unusual. That would mean that title
> > to everything automatically passed to Stepmom when Dad died so it was
> > not necessary to submit anything to probate.
>
> I've shown that the house passes via the will.
No, you haven't. The house only passes by the Will if it was Dad's separate property. What you have shown is that it was JTWROS or TBE property and thus you have affirmatively shown that it does NOT pass via his Will, unless there is some loophole a clever lawyer might discover for you.
> >> Does the
> >> lawyer that wrote this document have any liability here?
>
> > He might, if he screwed something up, but nothing so far in your post
> > convinces me he did so.
>
> The value of the house was to be divided upon the death of the last of
> them. This can no longer be done, since the asset is gone.
Which, as discussed above, may be the result of something your Dad did AFTER the Will was drafted and which the lawyer had no control or knowledge about. Or maybe not. You're certainly entitled to call the original lawyer and ask. He may or may not be obligated to tell you.
After you talk to the original lawyer, if you're not satisfied with the answers, or even if they do make superficial sense, you may want to pay for the time of another, independent lawyer to give you a second opinion. The second lawyer may tell you yes, everything is Kosher and it's your Dad who screwed up, not the lawyer; or he may find something fishy in the whole setup and offer to go to work for you to investigate further and try to protect your rights. See if you can find a lawyer who would be willing to work without substantial payment up front, either on a percentage contingency, or waiting until you do get an inheritance to take his hourly fee or flat fee out of that money. Be sure you fully understand whatever fee structure is proposed and feel it is fair; you're certainly allowed to negotiate, or to do comparison shopping, BEFORE you sign anything retaining that lawyer to be your advocate in this matter.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
How do you make a document official?
On Jul 20, 7:02 am, "JerryFelis" <jer...@nospam.com> wrote:
> How do you make a document official?
>
> For example, a will, trust arrangement or incorporation papers?
Reading between the lines, are you planning on writing any of these kind of things yourself, and want to make sure they will really work and will function the way you want them to and not in some unexpected way? Is that your question?
I think you would be best served by letting a lawyer do this for you. Your question itself, brief as it is, reveals such a profound lack of knowledge about such matters that I'm afraid you would be very likely to make some major mistake in planning, preparing or filing your papers and then you would have no one to blame but yourself. At least if a lawyer screws it up for you, you can go after his malpractice insurance. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> How do you make a document official?
>
> For example, a will, trust arrangement or incorporation papers?
Reading between the lines, are you planning on writing any of these kind of things yourself, and want to make sure they will really work and will function the way you want them to and not in some unexpected way? Is that your question?
I think you would be best served by letting a lawyer do this for you. Your question itself, brief as it is, reveals such a profound lack of knowledge about such matters that I'm afraid you would be very likely to make some major mistake in planning, preparing or filing your papers and then you would have no one to blame but yourself. At least if a lawyer screws it up for you, you can go after his malpractice insurance. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Wednesday, August 15, 2012
Consumer-unfriendly boilerplate credit agreements
On Jul 20, 7:02 am, Stan <stanle...@hotmail.com> wrote:
> Over the years, I've seen credit card "agreements", customer
> "agreements", and "terms of sale" getting longer and longer as "the
> lawyers" keep closing loophole after loophole and businesses try to
> protect all their new ways of screwing us. Is there any way to fight
> back?
Yes, you can refuse to deal with companies whose agreements you find onerous. Maybe if enough people do that, the ones whose boilerplate armor is heaviest will find they are losing business to the more consumer-friendly firms. But don't count on getting _all_ of the complex terms and conditions of a modern commercial contract eliminated. As another poster mentioned in a related thread, modern life is very complex and the law plays a large and necessary role in that; without the assurances of limited risk that the law and a well-drafted contract can provide, the web of credit that holds together just about all modern enterprise and consumer life too, would cease to exist. These terms are needed just as much to protect businesses against other businesses, as to limit the remedies of consumers. And at least in USA, consumer watchdog groups do a pretty good job of "outing" the worst offenses against average customers.
Also, if your rant is against the law itself and not against companies that try to gain unfair advantage by using the law, keep in mind that the original purpose of all kinds of government regulation was mainly to protect consumers, and to keep businesses from being as fully rapacious as they would otherwise be in an unregulated, laissez-faire economy. Of course, the Current Occupant and his administration want to roll back many of these protections to, say, 19th century levels, to the days of robber baron monopolies, hotdogs filled with sawdust, factories full of dangerously unguarded moving parts, and patent medicines containing heaven knows what. Or, you could just indulge in some recently imported Chinese products, who seem to be at about that level already.
<OP's sad history snipped>
> At what point can we "do something" and what can we do?
You can also drop off the Net, and live below the radar. Stop using credit, pay cash or barter for everything, don't use anything made in a modern factory, move out to the country, and eat a lot of peaches.
Hey, I'm not knocking it. It works for the Amish.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Over the years, I've seen credit card "agreements", customer
> "agreements", and "terms of sale" getting longer and longer as "the
> lawyers" keep closing loophole after loophole and businesses try to
> protect all their new ways of screwing us. Is there any way to fight
> back?
Yes, you can refuse to deal with companies whose agreements you find onerous. Maybe if enough people do that, the ones whose boilerplate armor is heaviest will find they are losing business to the more consumer-friendly firms. But don't count on getting _all_ of the complex terms and conditions of a modern commercial contract eliminated. As another poster mentioned in a related thread, modern life is very complex and the law plays a large and necessary role in that; without the assurances of limited risk that the law and a well-drafted contract can provide, the web of credit that holds together just about all modern enterprise and consumer life too, would cease to exist. These terms are needed just as much to protect businesses against other businesses, as to limit the remedies of consumers. And at least in USA, consumer watchdog groups do a pretty good job of "outing" the worst offenses against average customers.
Also, if your rant is against the law itself and not against companies that try to gain unfair advantage by using the law, keep in mind that the original purpose of all kinds of government regulation was mainly to protect consumers, and to keep businesses from being as fully rapacious as they would otherwise be in an unregulated, laissez-faire economy. Of course, the Current Occupant and his administration want to roll back many of these protections to, say, 19th century levels, to the days of robber baron monopolies, hotdogs filled with sawdust, factories full of dangerously unguarded moving parts, and patent medicines containing heaven knows what. Or, you could just indulge in some recently imported Chinese products, who seem to be at about that level already.
<OP's sad history snipped>
> At what point can we "do something" and what can we do?
You can also drop off the Net, and live below the radar. Stop using credit, pay cash or barter for everything, don't use anything made in a modern factory, move out to the country, and eat a lot of peaches.
Hey, I'm not knocking it. It works for the Amish.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Dad has joint Will with Stepmom
On Jul 14, 7:43 am, RJ <ss33s...@removeyahoo.com> wrote:
> Dad bought a house (Florida) jointly with his future wife. They got
> married then he filed a will that specifically stated that this property
> was to be split among the heirs when the last party died.
When did all this happen? How long ago did Dad die? And are you sure the FL house was meant to be included in Dad's Will? If it was in fact jointly owned with right of survivorship (do you really know this, or are you assuming?), then sole title to the house automatically passed to his wife after Dad died; it did not pass through probate or form any part of his estate.
When a Will refers to "the property" it generally means _all_ the things a person owns, realty and personalty both, and does not refer to a specific piece of realty unless that word is defined as such somewhere in the Will. Moreover, a Will is only effective as to property that forms part of the probate estate, and has no effect on property that passes outside of probate, such as jointly owned property, including houses, joint bank accounts, etc.
> text of will:
I am assuming this is an excerpt and not the entire Will.
> It is our intention
What does this mean, "our"? A Will is usually "my" not "our" intention since it is the intention of just one person (unless the testator is Queen Victoria: "We are not amused"). If your Stepmom (I assume this is not your own mother you are talking about) and Dad had a mutually binding contract to draft identical Wills, or a single joint Will, then that may be different. But your post didn't say anything about Stepmom's will, and I assume she is still alive so that would be premature anyway.
> that upon the death of
> the last of us, the property is to be sold and the proceeds divided
> equally between our two families.
Again I'm assuming "the property" means everything they own. You haven't provided a definition clause in the Will that says otherwise.
> I give and devise all of the rest. residue, and remainder of my estate,
> real, personal, and mixed, tangible and intangible, of whatsoever nature
> and wherever situated, to my children
If that is the _only_ bequest in Dad's will (I notice you used an ellipsis between the preceding 2 paragraphs indicating something was left out) then it may improperly deprive Stepmom of her minimum statutory share as Dad's widow. She may be able to challenge the will, if it ever came to probate, and insist upon her statutory share. Actually, if Dad's will provides that "the property" gets divided between _both_ families, this clause seems inconsistent with that intention. What gives? What did you leave out?
> It also is my intent that assets with a named beneficiary pass to the
> named beneficiary by operation of law and be affected by this will only
> to the extent my estate or any trust hereunder is named as beneficiary
> or the asset would pass to my estate or any trust hereunder because of
> the provisions of any agreement controlling the disposition of the asset.
That's typical boilerplate and just shows that testator (Dad) is aware of the legalities noted above, i.e. that some kinds of property don't pass thru probate.
> end.
Huh? Is that your way of indicating the end of the quoted text, or does the will end that way, with the word "end"? Why not just use quotation marks? But I digress.
> Dad then passed away and his wife continued to live there. No problems
> so far until I found out that his wife moved out and sold the property.
Even if your interpretation is correct, doesn't Dad's Will provide that the property is _supposed_ to be sold, so its value can be divided?
But I doubt very much that either Dad or Stepmom intended to bind themselves to never sell that particular house until after both of them died; what if it got destroyed in a hurricane or flood, frex, and they wanted to move someplace safer? Or it got eaten by termites? Or what if Stepmom had to move into a nursing home after Dad died and needed the money for he care? Or (pick your favorite reason). Since it was going to be sold anyway, all that matters is that its value is preserved. Which is why I doubt "the property" in your quoted text was intended to refer to that specific piece of land. If it did, that would IMO be a very poor decision by your Dad and Stepmom since no one can predict what might happen down the road. Their first concern should have been to make sure each other was taken care of, and only after that should they worry about dividing what is left between the 2 families.
> The will does not as far as I can tell specifically disallow her from
> selling the property although not Dad's true intention.
Why would he want to bind her to that kind of commitment to a particular home? It's not like it was the ancestral mansion and fields of a landed aristocrat or something. BTW, was this their _only_ house, or just a vacation property? Where does Stepmom live now that she sold it?
> It's probably
> pointless to add that I have seen not one dime from his estate.
You haven't given us any facts yet to indicate you were entitled to receive anything yet. If I read you right, you and your siblings (or their children, if a sibling predeceases your Stepmom) are supposed to get half of what is left over after Stepmom dies, and her descendants are supposed to get the other half. Which means you don't get anything until she dies too, which could take quite a while. How old is she? In any case, don't hold your breath.
> There
> was no formal will execution
I assume you mean "probate" instead of "execution". "Execution" of a Will occurs when the testator signs it in front of the necessary witnesses. "Probate" occurs when the Will is submitted to the authorities for appointment of an Executor (maybe that's where the confusion arises) as they are called in some states, empowerment of the Executor to collect all the decedent's assets, pay his debts, and propose a distribution in accord with his Will, and approval by the authorities of the proposed distribution. None of that is necessary if everything was jointly held so there is no solely-owned property that passes by means of the Will.
> and I have no clue as to what his assets
> were.
Then I repeat, you have shown no facts to indicate anything at all even had to pass by means of Dad's Will. Maybe he had _no_ separate assets, which would not be at all unusual. That would mean that title to everything automatically passed to Stepmom when Dad died so it was not necessary to submit anything to probate.
> What, if anything, can I do to receive what Dad had intended to
> provide?
What do you claim he intended to provide at this time, as opposed to after Stepmom dies sometime in the future? How do you know this, and/or what is the basis of your assumption?
> It's obvious what his intentions were.
Not to me. You have left major gaps in the facts you provided so IMO it is impossible to tell from that alone what his actual intentions were.
> If the will does not
> stand on it's own then what was the point of writing it?
Well, generally a Will _does_ stand on its own, but in the case of a jointly executed will between spouses, it may be necessary to read it in conjunction with Stepmom's will, and/or any specific written contracts between Dad and Stepmom entered at the time they both wrote their Wills.
> Does the
> lawyer that wrote this document have any liability here?
He might, if he screwed something up, but nothing so far in your post convinces me he did so.
I assume by your asking this question that you know who this lawyer is. Have you tried calling to talk to him to get an answer to your concerns? The worst that could happen is he would tell you he's not allowed to tell you anything, and then you would have to consult an independent lawyer on your own to find out. Which is not a bad idea anyway, if you suspect this lawyer may be in cahoots with Stepmom in some way (not that you have given us any reason to believe that yet).
The bottom line is, an inheritance is NOT a right, it is a gift, and one which is often made to adult children contingent on first making sure that all the needs of the primary focus of decedent's affection, usually a surviving spouse, are completely taken care of. You and your siblings are (presumably) adults and do not need this money to pay for your continued support and education as would be expected if you were still minors when Dad died; but Stepmom is (again, presumably) elderly and may well need such support far more than you do. That is typically what most testators would want, and is the reason most states' laws provide for an unalienable spouse's share of an estate even if a Will purports to disinherit her. So, consult a local lawyer and show him or her the ENTIRE Will, and any other pertinent papers you are aware of (such as Stepmom's Will and any contracts between Dad and Stepmom) if you still have concerns, but don't be surprised if the answer is that you get nothing until Stepmom dies and then you and your siblings get half of what's left over, if anything.
Personally, it wouldn't surprise me if Stepmom is going to get one of those bumper stickers that say, "I'm spending my children's inheritance." Which is her absolute right to do, if in fact the property belongs to her. Try to avoid being the greedy heir-apparent and you may even find you have a family of new relatives that you might like. Just a thought.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Dad bought a house (Florida) jointly with his future wife. They got
> married then he filed a will that specifically stated that this property
> was to be split among the heirs when the last party died.
When did all this happen? How long ago did Dad die? And are you sure the FL house was meant to be included in Dad's Will? If it was in fact jointly owned with right of survivorship (do you really know this, or are you assuming?), then sole title to the house automatically passed to his wife after Dad died; it did not pass through probate or form any part of his estate.
When a Will refers to "the property" it generally means _all_ the things a person owns, realty and personalty both, and does not refer to a specific piece of realty unless that word is defined as such somewhere in the Will. Moreover, a Will is only effective as to property that forms part of the probate estate, and has no effect on property that passes outside of probate, such as jointly owned property, including houses, joint bank accounts, etc.
> text of will:
I am assuming this is an excerpt and not the entire Will.
> It is our intention
What does this mean, "our"? A Will is usually "my" not "our" intention since it is the intention of just one person (unless the testator is Queen Victoria: "We are not amused"). If your Stepmom (I assume this is not your own mother you are talking about) and Dad had a mutually binding contract to draft identical Wills, or a single joint Will, then that may be different. But your post didn't say anything about Stepmom's will, and I assume she is still alive so that would be premature anyway.
> that upon the death of
> the last of us, the property is to be sold and the proceeds divided
> equally between our two families.
Again I'm assuming "the property" means everything they own. You haven't provided a definition clause in the Will that says otherwise.
> I give and devise all of the rest. residue, and remainder of my estate,
> real, personal, and mixed, tangible and intangible, of whatsoever nature
> and wherever situated, to my children
If that is the _only_ bequest in Dad's will (I notice you used an ellipsis between the preceding 2 paragraphs indicating something was left out) then it may improperly deprive Stepmom of her minimum statutory share as Dad's widow. She may be able to challenge the will, if it ever came to probate, and insist upon her statutory share. Actually, if Dad's will provides that "the property" gets divided between _both_ families, this clause seems inconsistent with that intention. What gives? What did you leave out?
> It also is my intent that assets with a named beneficiary pass to the
> named beneficiary by operation of law and be affected by this will only
> to the extent my estate or any trust hereunder is named as beneficiary
> or the asset would pass to my estate or any trust hereunder because of
> the provisions of any agreement controlling the disposition of the asset.
That's typical boilerplate and just shows that testator (Dad) is aware of the legalities noted above, i.e. that some kinds of property don't pass thru probate.
> end.
Huh? Is that your way of indicating the end of the quoted text, or does the will end that way, with the word "end"? Why not just use quotation marks? But I digress.
> Dad then passed away and his wife continued to live there. No problems
> so far until I found out that his wife moved out and sold the property.
Even if your interpretation is correct, doesn't Dad's Will provide that the property is _supposed_ to be sold, so its value can be divided?
But I doubt very much that either Dad or Stepmom intended to bind themselves to never sell that particular house until after both of them died; what if it got destroyed in a hurricane or flood, frex, and they wanted to move someplace safer? Or it got eaten by termites? Or what if Stepmom had to move into a nursing home after Dad died and needed the money for he care? Or (pick your favorite reason). Since it was going to be sold anyway, all that matters is that its value is preserved. Which is why I doubt "the property" in your quoted text was intended to refer to that specific piece of land. If it did, that would IMO be a very poor decision by your Dad and Stepmom since no one can predict what might happen down the road. Their first concern should have been to make sure each other was taken care of, and only after that should they worry about dividing what is left between the 2 families.
> The will does not as far as I can tell specifically disallow her from
> selling the property although not Dad's true intention.
Why would he want to bind her to that kind of commitment to a particular home? It's not like it was the ancestral mansion and fields of a landed aristocrat or something. BTW, was this their _only_ house, or just a vacation property? Where does Stepmom live now that she sold it?
> It's probably
> pointless to add that I have seen not one dime from his estate.
You haven't given us any facts yet to indicate you were entitled to receive anything yet. If I read you right, you and your siblings (or their children, if a sibling predeceases your Stepmom) are supposed to get half of what is left over after Stepmom dies, and her descendants are supposed to get the other half. Which means you don't get anything until she dies too, which could take quite a while. How old is she? In any case, don't hold your breath.
> There
> was no formal will execution
I assume you mean "probate" instead of "execution". "Execution" of a Will occurs when the testator signs it in front of the necessary witnesses. "Probate" occurs when the Will is submitted to the authorities for appointment of an Executor (maybe that's where the confusion arises) as they are called in some states, empowerment of the Executor to collect all the decedent's assets, pay his debts, and propose a distribution in accord with his Will, and approval by the authorities of the proposed distribution. None of that is necessary if everything was jointly held so there is no solely-owned property that passes by means of the Will.
> and I have no clue as to what his assets
> were.
Then I repeat, you have shown no facts to indicate anything at all even had to pass by means of Dad's Will. Maybe he had _no_ separate assets, which would not be at all unusual. That would mean that title to everything automatically passed to Stepmom when Dad died so it was not necessary to submit anything to probate.
> What, if anything, can I do to receive what Dad had intended to
> provide?
What do you claim he intended to provide at this time, as opposed to after Stepmom dies sometime in the future? How do you know this, and/or what is the basis of your assumption?
> It's obvious what his intentions were.
Not to me. You have left major gaps in the facts you provided so IMO it is impossible to tell from that alone what his actual intentions were.
> If the will does not
> stand on it's own then what was the point of writing it?
Well, generally a Will _does_ stand on its own, but in the case of a jointly executed will between spouses, it may be necessary to read it in conjunction with Stepmom's will, and/or any specific written contracts between Dad and Stepmom entered at the time they both wrote their Wills.
> Does the
> lawyer that wrote this document have any liability here?
He might, if he screwed something up, but nothing so far in your post convinces me he did so.
I assume by your asking this question that you know who this lawyer is. Have you tried calling to talk to him to get an answer to your concerns? The worst that could happen is he would tell you he's not allowed to tell you anything, and then you would have to consult an independent lawyer on your own to find out. Which is not a bad idea anyway, if you suspect this lawyer may be in cahoots with Stepmom in some way (not that you have given us any reason to believe that yet).
The bottom line is, an inheritance is NOT a right, it is a gift, and one which is often made to adult children contingent on first making sure that all the needs of the primary focus of decedent's affection, usually a surviving spouse, are completely taken care of. You and your siblings are (presumably) adults and do not need this money to pay for your continued support and education as would be expected if you were still minors when Dad died; but Stepmom is (again, presumably) elderly and may well need such support far more than you do. That is typically what most testators would want, and is the reason most states' laws provide for an unalienable spouse's share of an estate even if a Will purports to disinherit her. So, consult a local lawyer and show him or her the ENTIRE Will, and any other pertinent papers you are aware of (such as Stepmom's Will and any contracts between Dad and Stepmom) if you still have concerns, but don't be surprised if the answer is that you get nothing until Stepmom dies and then you and your siblings get half of what's left over, if anything.
Personally, it wouldn't surprise me if Stepmom is going to get one of those bumper stickers that say, "I'm spending my children's inheritance." Which is her absolute right to do, if in fact the property belongs to her. Try to avoid being the greedy heir-apparent and you may even find you have a family of new relatives that you might like. Just a thought.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Can Congress overrule the Supreme Court?
On Jul 13, 7:09 am, Hypa...@giganews.com wrote:
> What must/could the Congress do to rectify situations such as the
> one where a female employee was not allowed to obtain
> redress for long-time sexual discrimination because the Court held
> that she did not complain -- IIRC -- about a specific instance within
> certain time constraints.
Since that one was a matter of statutory interpretation, under Title VII of the Civil Rights Act, Congress can, if it so chooses, amend the statute it passed, either to clarify that what it originally meant was contrary to SCOTUS' new interpretation, or to effect an actual change in the law as public policy on the issue evolves. This has happened quite a few times in history, although I can't think of a recent example offhand and am not going to look it up, Since Congress makes statutory law, Congress can just as easily change, or repeal, a statutory law. I have heard from several sources that Congress may attempt to do just that with the equal-pay issue, since there is major popular support for such action not to mention making the law more sensible and fair.
> Other horrors involve screwing bankrupts in favor of corporations...
Bankruptcy law is also statutory and can be amended by Congress, although keep in mind that Congress recently did just that to make BK law tougher on debtors, and more favorable to creditors especially with consumer debt. Don't assume that Congress is going to be either more liberal or more conservative on some issue than SCOTUS is; in different times the tables may be reversed, but for now, these branches of government are on the same page and so a statutory amendment is not likely to happen anytime soon.
> the "free speech" issue of a schoolboy with a fun sign...
That's different. First Amendment issues are matters of constitutional interpretation, and SCOTUS is the final word there. Of course, a later court may overrule itself, the way the "separate but equal" rule of Plessy v. Ferguson was overruled by Brown v. Board of Ed. on constitutional equal protection grounds.
The only way Congress can overturn a SCOTUS constitutional ruling is by passing a constitutional amendment, a long and difficult process that has had little recent success and is usually a bad idea if it is an attempt to constitutionalize the societal mores of the moment (e.g. Prohibition of alcohol) rather than to enshrine etermal principles of civil liberties (such as in the Reconstruction-era amendments banning slavery, giving former slaves the vote, and mandating equal protection and due process in state as well as federal government) or to specifically empower the Feds to do things they otherwise could not do (e.g. income tax).
I mean, what _could_ the Congress do to amend the First Amendment? "Congress shall make no law abridging the freedom of speech ... and this time we really mean it, even if you're a high school student allegedly promoting drug abuse among minors, that means you, no ifs ands or buts, say whatever you want?" What would that do to existing First Amendment jurisprudence about, frex, shouting "fire" in a crowded theater, or uttering "fighting words," or prohibiting obscene speech, or for that matter, regulating what can be said or shown to minors?
IMO the free-speech constitutional language is already admirably clear and broad, and SCOTUS has generally done a fairly good job of striking the necessary balance between liberty and order, with an occasional misstep that they can much more easily correct the next time they have to interpret the provision than if each exception were cast in stone. Attempting to carve out written special cases would only muck this up and make it that much _harder_ for SCOTUS to achieve that balance next time around. Better to wait for a more liberty-minded court to overrule its own present narrow interpretation of sound eternal principles.
> Bottom line: What could/must Congress do to override these
> decisions?
Wait and see about the equal-pay filing deadline issue. Don't hold your breath on the others.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> What must/could the Congress do to rectify situations such as the
> one where a female employee was not allowed to obtain
> redress for long-time sexual discrimination because the Court held
> that she did not complain -- IIRC -- about a specific instance within
> certain time constraints.
Since that one was a matter of statutory interpretation, under Title VII of the Civil Rights Act, Congress can, if it so chooses, amend the statute it passed, either to clarify that what it originally meant was contrary to SCOTUS' new interpretation, or to effect an actual change in the law as public policy on the issue evolves. This has happened quite a few times in history, although I can't think of a recent example offhand and am not going to look it up, Since Congress makes statutory law, Congress can just as easily change, or repeal, a statutory law. I have heard from several sources that Congress may attempt to do just that with the equal-pay issue, since there is major popular support for such action not to mention making the law more sensible and fair.
> Other horrors involve screwing bankrupts in favor of corporations...
Bankruptcy law is also statutory and can be amended by Congress, although keep in mind that Congress recently did just that to make BK law tougher on debtors, and more favorable to creditors especially with consumer debt. Don't assume that Congress is going to be either more liberal or more conservative on some issue than SCOTUS is; in different times the tables may be reversed, but for now, these branches of government are on the same page and so a statutory amendment is not likely to happen anytime soon.
> the "free speech" issue of a schoolboy with a fun sign...
That's different. First Amendment issues are matters of constitutional interpretation, and SCOTUS is the final word there. Of course, a later court may overrule itself, the way the "separate but equal" rule of Plessy v. Ferguson was overruled by Brown v. Board of Ed. on constitutional equal protection grounds.
The only way Congress can overturn a SCOTUS constitutional ruling is by passing a constitutional amendment, a long and difficult process that has had little recent success and is usually a bad idea if it is an attempt to constitutionalize the societal mores of the moment (e.g. Prohibition of alcohol) rather than to enshrine etermal principles of civil liberties (such as in the Reconstruction-era amendments banning slavery, giving former slaves the vote, and mandating equal protection and due process in state as well as federal government) or to specifically empower the Feds to do things they otherwise could not do (e.g. income tax).
I mean, what _could_ the Congress do to amend the First Amendment? "Congress shall make no law abridging the freedom of speech ... and this time we really mean it, even if you're a high school student allegedly promoting drug abuse among minors, that means you, no ifs ands or buts, say whatever you want?" What would that do to existing First Amendment jurisprudence about, frex, shouting "fire" in a crowded theater, or uttering "fighting words," or prohibiting obscene speech, or for that matter, regulating what can be said or shown to minors?
IMO the free-speech constitutional language is already admirably clear and broad, and SCOTUS has generally done a fairly good job of striking the necessary balance between liberty and order, with an occasional misstep that they can much more easily correct the next time they have to interpret the provision than if each exception were cast in stone. Attempting to carve out written special cases would only muck this up and make it that much _harder_ for SCOTUS to achieve that balance next time around. Better to wait for a more liberty-minded court to overrule its own present narrow interpretation of sound eternal principles.
> Bottom line: What could/must Congress do to override these
> decisions?
Wait and see about the equal-pay filing deadline issue. Don't hold your breath on the others.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Exculpatory contract waiver
On Jul 3, 7:19 am, dr_phill...@yahoo.com wrote:
> Most average Joe's are used to signing off on waivers and contracts
> they never read. Most of these waivers are basically full of legalese
> freeing the company of any liability for it's product or service. Do
> these waivers really hold any water in court, or does common sense
> always take precedence.
Coming late to this thread, I only have a few points to add to others' worthwhile comments. First, most if not all USA states adhere to the "objective theory" of contract formation. That is, whether Joe Contractor read the contract he was signing or not, or understood it or not, he will be held to the standard of what a hypothetical "reasonable person" would have done, and understood, in the circumstances. It doesn't matter what Joe subjectively thought the contract meant; all that matters is its reasonable, objective meaning, and the fact that he signed it indicating his agreement to those terms. If that's "common sense", then yes, it takes precedence.
> For example , say your sky diving instructor was drunk and injures you
> in a bad landing. Is he and his company completely free of any
> wrongdoing because of the 12 page waiver you signed before jumping?
It does make a difference what kind of subject matter the contract involves. For skydiving, yes, the court is likely to uphold an exculpatory agreement where the customer agrees to hold the operator harmless if he gets injured. In some states, including MD, such agreements do not apply to waive the negligence of the operator unless the contract specifically and clearly says it applies to the operator's negligence. And in no state I'm aware of will such a contract exonerate the operator from gross negligence, recklessness, or intentional battery.
If the contract is for something other than a dangerous, optional and voluntary recreational activity like scuba, skiing, motor racing, airshows (we had a thread on this not long ago), the courts are less likely to find such a term reasonable and more likely to find oppression or duress. Frex, no state I'm aware of will allow a hospital to force an ER patient to sign a waiver of liability as a condition of being examined and treated; that would be duress because the ER patient has no realistic choice and needs the services immediately. Ditto with contracts for public utilities, common carriers and other vital necessities of life. However, even those kind of businesses have been chipping away at the advances in consumer rights of the late 20th cent. as the conservative forces of deregulation and globalization have come to the forefront in everyday life. If the consumer has 5 electric suppliers to choose from (supposedly) none of them have monopoly power and he not only gets great rates but any exculpatory clause in the contract will be considered fairly bargained for, and thus more likely to be upheld.
> On a similar note, why don't most businesses add these limitation of
> liability clauses to their contracts?
Many do.
> If a prospect feels they have a
> legal right to your hard earned money because of a common mistake,
> then just don't sign that prospect on.
If you the business are not a public utility bound to offer your services to all takers, you do have that option.
> I run my own small software
> service company and just plainly refuse my services to any prospect
> who questions why I have all 'Limitation of liability' clauses in my
> contracts.
Or you could explain to them why. And not lose their business unnecessarily. But that's your choice.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Most average Joe's are used to signing off on waivers and contracts
> they never read. Most of these waivers are basically full of legalese
> freeing the company of any liability for it's product or service. Do
> these waivers really hold any water in court, or does common sense
> always take precedence.
Coming late to this thread, I only have a few points to add to others' worthwhile comments. First, most if not all USA states adhere to the "objective theory" of contract formation. That is, whether Joe Contractor read the contract he was signing or not, or understood it or not, he will be held to the standard of what a hypothetical "reasonable person" would have done, and understood, in the circumstances. It doesn't matter what Joe subjectively thought the contract meant; all that matters is its reasonable, objective meaning, and the fact that he signed it indicating his agreement to those terms. If that's "common sense", then yes, it takes precedence.
> For example , say your sky diving instructor was drunk and injures you
> in a bad landing. Is he and his company completely free of any
> wrongdoing because of the 12 page waiver you signed before jumping?
It does make a difference what kind of subject matter the contract involves. For skydiving, yes, the court is likely to uphold an exculpatory agreement where the customer agrees to hold the operator harmless if he gets injured. In some states, including MD, such agreements do not apply to waive the negligence of the operator unless the contract specifically and clearly says it applies to the operator's negligence. And in no state I'm aware of will such a contract exonerate the operator from gross negligence, recklessness, or intentional battery.
If the contract is for something other than a dangerous, optional and voluntary recreational activity like scuba, skiing, motor racing, airshows (we had a thread on this not long ago), the courts are less likely to find such a term reasonable and more likely to find oppression or duress. Frex, no state I'm aware of will allow a hospital to force an ER patient to sign a waiver of liability as a condition of being examined and treated; that would be duress because the ER patient has no realistic choice and needs the services immediately. Ditto with contracts for public utilities, common carriers and other vital necessities of life. However, even those kind of businesses have been chipping away at the advances in consumer rights of the late 20th cent. as the conservative forces of deregulation and globalization have come to the forefront in everyday life. If the consumer has 5 electric suppliers to choose from (supposedly) none of them have monopoly power and he not only gets great rates but any exculpatory clause in the contract will be considered fairly bargained for, and thus more likely to be upheld.
> On a similar note, why don't most businesses add these limitation of
> liability clauses to their contracts?
Many do.
> If a prospect feels they have a
> legal right to your hard earned money because of a common mistake,
> then just don't sign that prospect on.
If you the business are not a public utility bound to offer your services to all takers, you do have that option.
> I run my own small software
> service company and just plainly refuse my services to any prospect
> who questions why I have all 'Limitation of liability' clauses in my
> contracts.
Or you could explain to them why. And not lose their business unnecessarily. But that's your choice.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Craigslist cashiers-check scam
On Jul 4, 7:10 am, "Edward C." <edwardclemen...@aol.com> wrote:
[After listing a computer for sale on Craigslist]
> I have had several replies from strange individuals around the world
> or in other states offering to buy the computer with a check or money
> order. Of course the money order or check is for more than I'm asking.
> I'm aware that this is some sort of scam, and will not get involved in
> any way. But I'm not completely clear on what type of scam it is or
> even what their trying to do.
This is an old scam that appears to be coming back. My daughter in Los Angeles listed her car for sale on Craigslist and got a virtually identical reply to the one OP received. Fortunately, she called me first because it sounded fishy; it is.
The point of the scam is, the round-number "cashier's check" or "M.O." they send you is in fact fake, a counterfeit. But it's drawn on a foreign bank so you don't get quick confirmation under Check21 that funds are available, and you can't just call up the overseas bank to confirm funds either. The scammer wants you to draw a check or M.O. from your own funds for their "change" from the transaction; that they keep, and then they disappear before you find out from your bank that _their_ payment has bounced. The amount of the bum check is deducted back out of your account, and you are left in the hole the amount you sent to the scammers for "change." They are not really interested in your computer and have no intention of "sending someone to pick it up." If they can get just a few suckers a day to fall for this come-on, it's worth all the time they put into it to respond to Craigslist ads even if they don't have bots broadcasting their come-ons as spam and do it all by hand.
This is a variation of the Nigerian scam where the scammer claims to be a deposed honcho of some kind and wants you to send your bank account access codes to him so he can "authorize deposit" to you of a zillion dollars in stolen CARE packages or whatever, to help him "get the funds out of the country" and give you a large chunk of it as payment for your trouble, after _you_pay_him_ a "processing fee" or "good faith payment" or such, from your same bank account by authorizing him to make a withdrawal. Of course, the really nasty scammers access your bank account from the information you give them, and clean you out completely, not settling for just the "change" you give them.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
[After listing a computer for sale on Craigslist]
> I have had several replies from strange individuals around the world
> or in other states offering to buy the computer with a check or money
> order. Of course the money order or check is for more than I'm asking.
> I'm aware that this is some sort of scam, and will not get involved in
> any way. But I'm not completely clear on what type of scam it is or
> even what their trying to do.
This is an old scam that appears to be coming back. My daughter in Los Angeles listed her car for sale on Craigslist and got a virtually identical reply to the one OP received. Fortunately, she called me first because it sounded fishy; it is.
The point of the scam is, the round-number "cashier's check" or "M.O." they send you is in fact fake, a counterfeit. But it's drawn on a foreign bank so you don't get quick confirmation under Check21 that funds are available, and you can't just call up the overseas bank to confirm funds either. The scammer wants you to draw a check or M.O. from your own funds for their "change" from the transaction; that they keep, and then they disappear before you find out from your bank that _their_ payment has bounced. The amount of the bum check is deducted back out of your account, and you are left in the hole the amount you sent to the scammers for "change." They are not really interested in your computer and have no intention of "sending someone to pick it up." If they can get just a few suckers a day to fall for this come-on, it's worth all the time they put into it to respond to Craigslist ads even if they don't have bots broadcasting their come-ons as spam and do it all by hand.
This is a variation of the Nigerian scam where the scammer claims to be a deposed honcho of some kind and wants you to send your bank account access codes to him so he can "authorize deposit" to you of a zillion dollars in stolen CARE packages or whatever, to help him "get the funds out of the country" and give you a large chunk of it as payment for your trouble, after _you_pay_him_ a "processing fee" or "good faith payment" or such, from your same bank account by authorizing him to make a withdrawal. Of course, the really nasty scammers access your bank account from the information you give them, and clean you out completely, not settling for just the "change" you give them.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
California bankrupt intestate estate, part 4
On Jul 4, 7:09 am, "Robert M. Gary" <N70...@gmail.com> wrote:
> On Jul 2, 4:37 am, shy <Ann_Hedo...@hotmail.com> wrote:
>
> > I do not have money to hire a lawyer, and don't know what to do
>
> You might call the local law school. Here in California we have
> "certified law students" that are looking for cases to work on. If
> your case is accepted by the school it is usually done for the cost of
> the filings. I think there is a max income requirement though.
It's good to be reminded of that option from time to time, But, from OP's description of her problem, I'm not sure what good a lawyer could do to help with her immediate concerns for her out of control 17 year old. What kind of a case would be there, for a law student to handle? Defending him if he comes up with criminal charges, maybe? But she wants to nip it in the bud before it gets to that point. Suing the state to force a change in the privacy law? Is that really what she wants to accomplish, let alone an appropriate goal for a law student project? What she needs is a whole constellation of public services to help her kid and help her deal with her kid, along with some kind of guidance from someone who's been there before to help her navigate the maze. IMO she doesn't need a lawyer. Yet.
As we have discussed in another context, Mr. Gary, I don't think every problem touching on law requires a lawyer to come in and take over. A well organized legal system, just like a business enterprise or a medical system, would try to have every participant spending most of his or her time and effort doing things close to the top of that person's competence. You want the doctors to be doctors and not doing orderlies', or nurses', tasks most of the time. In OP's situation an experienced lay person to guide her would IMO be _more_ valuable than bringing in a lawyer or law student to sue everybody in sight.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> On Jul 2, 4:37 am, shy <Ann_Hedo...@hotmail.com> wrote:
>
> > I do not have money to hire a lawyer, and don't know what to do
>
> You might call the local law school. Here in California we have
> "certified law students" that are looking for cases to work on. If
> your case is accepted by the school it is usually done for the cost of
> the filings. I think there is a max income requirement though.
It's good to be reminded of that option from time to time, But, from OP's description of her problem, I'm not sure what good a lawyer could do to help with her immediate concerns for her out of control 17 year old. What kind of a case would be there, for a law student to handle? Defending him if he comes up with criminal charges, maybe? But she wants to nip it in the bud before it gets to that point. Suing the state to force a change in the privacy law? Is that really what she wants to accomplish, let alone an appropriate goal for a law student project? What she needs is a whole constellation of public services to help her kid and help her deal with her kid, along with some kind of guidance from someone who's been there before to help her navigate the maze. IMO she doesn't need a lawyer. Yet.
As we have discussed in another context, Mr. Gary, I don't think every problem touching on law requires a lawyer to come in and take over. A well organized legal system, just like a business enterprise or a medical system, would try to have every participant spending most of his or her time and effort doing things close to the top of that person's competence. You want the doctors to be doctors and not doing orderlies', or nurses', tasks most of the time. In OP's situation an experienced lay person to guide her would IMO be _more_ valuable than bringing in a lawyer or law student to sue everybody in sight.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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