On Aug 2, 8:15 am, "johnmoli...@yahoo.com" <johnmoli...@yahoo.com> wrote:
> Can "sexual harassment" occur not in an employment environment?
Sure. You recognize that a term can have both a common meaning, and a specific legal meaning in a particular context.
> federal law and state laws where I live apply the legal term "sexual
> harassment" to employment related conduct.
In an employment context, the term refers to a form of gender-based discrimination in which people are treated differently on account of their gender by creating a "hostile work environment" for persons of one gender. That typically means the boys on the shop floor make sexually suggestive remarks to Rosie the Riveter, or request sexual favors from Sadie the Receptionist, or post offensively lewd pictures on the walls, and management knows but does nothing about it. It can also refer to the situation where a manager pressures an employee to have sex in return for favorable treatment at work, the "quid pro quo" form of sexual harassment. What makes such conduct discriminatory is that the environment becomes hostile for women but not for men, or the pressure to put out is applied to women but not to men, or vice versa. A woman boss can sexually harass her male employees too, and a gay boss can sexually harass employees of the same sex. I frankly don't know the current status of how a bisexual boss who pressures his entire staff, regardless of gender, to have sex with him or her, would be treated by the civil rights laws but that is probably also quid pro quo harassment. It could, of course, also be considered "sexual harassment" in the commonly understood meaning of those words and prosecuted as such, if he forces his attentions on unwilling victims. The definition varies from state to state but such conduct could probably be considered some kind of criminal sex offense if it rises to that level.
> I can't find anything about "sexual harassment" in a non-employment
> environment.
It's called "rape", or "sexual assault", or "molestation", or "sodomy", or "lewd and lascivious conduct", or "indecent exposure", or something innocuous-sounding like "third (first, second etc.) degree sex offense". It's potentially a crime.
> If an employee of a company makes unwanted verbal sexual remarks to a
> customer, is that in any way "sexual harassment" if not what civil
> tort or criminal statute would cover it?
If it's merely words, I don't know what would happen; although if the words are reasonably perceived by the hearer as threatening, words alone can constitute an assault.
If the perp (as in your example) exposed himself, or improperly touched the victim, there would be a lot stronger basis to criminally prosecute.
Of course, it goes without saying that the employer is well within his rights to fire an employee who makes unwanted sexual advances to customers and scares them away, thereby causing the company to lose business.
Maybe if you could be a bit more specific in your facts, you could get a more specific answer from someone.
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Mike Jacobs
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Thursday, August 16, 2012
Uncle loan to grand-nephew, part 2
On Aug 2, 8:14 am, se...@panix.com (Seth) wrote:
> Couldn't executor give Grand-nephew the loan as part of his share of
> the estate?
Yes, if the Will in fact provides a bequest to Grand-nephew. There are lots of possibilities, and treating the payment as an inter vivos gift in lieu of a bequest, or as a loan to be repaid from the recipient's bequest, are among the possibilities. The default assumption under which I was discussing the issue was that Grand-nephew was not mentioned at all in the Will but I tried to think of some of those other possibilities in passing. Your scenario is one real possibility I hadn't thought of.
Of course, if executor does that and Grand-nephew disagrees, then it is Grand-nephew who would have to initiate court proceedings and would have the burden of proof that he was entitled to receive more from the estate.
When someone like OP asks a very specific question but doesn't provide enough specific and pertinent facts to fully analyze the situation, the answer is usually "it depends".
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> Couldn't executor give Grand-nephew the loan as part of his share of
> the estate?
Yes, if the Will in fact provides a bequest to Grand-nephew. There are lots of possibilities, and treating the payment as an inter vivos gift in lieu of a bequest, or as a loan to be repaid from the recipient's bequest, are among the possibilities. The default assumption under which I was discussing the issue was that Grand-nephew was not mentioned at all in the Will but I tried to think of some of those other possibilities in passing. Your scenario is one real possibility I hadn't thought of.
Of course, if executor does that and Grand-nephew disagrees, then it is Grand-nephew who would have to initiate court proceedings and would have the burden of proof that he was entitled to receive more from the estate.
When someone like OP asks a very specific question but doesn't provide enough specific and pertinent facts to fully analyze the situation, the answer is usually "it depends".
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Mike Jacobs
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Inherited IRA upon original owner's death?
On Aug 1, 2:06 pm, grendal <im_gu...@hotmail.com> wrote:
> When you inherit an IRA, you have to take in consideration of your
> life expectancy and you have to start removing a percentage of the IRA
> each year such that the entire amount is removed. *You can't
> perpetually keep an IRA.
Do you have a statutory citation to support your analysis? My (civilian) understanding (this is not my area of law) is that the early-withdrawal-penalty and mandatory-withdrawal-upon-retirement rules apply to the original IRA owner only. One does not actually "inherit" an IRA, in the sense of it becoming part of the decedent's probate estate and then passing by means of his Will; rather, the funds go directly to whoever the decedent named as a beneficiary on his IRA account, and when the corpus of the fund passes to a named beneficiary upon the owner's death, that is done as a lump sum, free and clear of any obligation to reinvest in another IRA or otherwise to treat it as pre-tax retirement funds of the beneficiary. Maybe you could clarify what you meant if I misunderstood you.
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Mike Jacobs
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> When you inherit an IRA, you have to take in consideration of your
> life expectancy and you have to start removing a percentage of the IRA
> each year such that the entire amount is removed. *You can't
> perpetually keep an IRA.
Do you have a statutory citation to support your analysis? My (civilian) understanding (this is not my area of law) is that the early-withdrawal-penalty and mandatory-withdrawal-upon-retirement rules apply to the original IRA owner only. One does not actually "inherit" an IRA, in the sense of it becoming part of the decedent's probate estate and then passing by means of his Will; rather, the funds go directly to whoever the decedent named as a beneficiary on his IRA account, and when the corpus of the fund passes to a named beneficiary upon the owner's death, that is done as a lump sum, free and clear of any obligation to reinvest in another IRA or otherwise to treat it as pre-tax retirement funds of the beneficiary. Maybe you could clarify what you meant if I misunderstood you.
--
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Mike Jacobs
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Uncle loan to grand-nephew: effect on Will?
On Jul 31, 7:55 am, electrobi...@hotmail.com wrote:
> My Uncle recently died [after $120k payment to Grand-nephew]
* * *
> Where is the burden of proof in this case?
Re-thinking my first post of this morning, ISTM the party trying to get the money back from Grand-nephew would have the initial burden of proof in either case. But sometimes there is more than one burden of proof.
If executor agrees with your Mom and tries to reclaim the money on the basis he claims it was a loan owed to the Estate, executor has the burden of proving it was a loan, and will probably have to sue Grand-nephew to get it, unless Grand-nephew gives it up voluntarily. Of course, if Grand-nephew has already admitted that it was intended as a loan, then executor's burden of proof will be easier. Grand-nephew can then claim, as an affirmative defense, that the loan was to be forgiven on Uncle's death. Grand-nephew would have the burden of proving his affirmative defense.
OTOH if executor gives up on trying to collect, and your Mom wants to challenge that decision, then she would have the burden of proof, as stated in my original post. IF indeed Grand-nephew had any reason to challenge executor's decision, he too would have the burden of proving the basis for his challenge, but the missing link there was that he doesn't in fact have to challenge anything, he can just take a defensive posture and wait for executor to sue if he wants to try to collect.
If this actually gets to a posture where your Mom's interests are at stake, you as her POA are surely going to consult a lawyer to represent her in this, aren't you? That would be doing a good job as her POA. Don't try this yourself.
--
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My Uncle recently died [after $120k payment to Grand-nephew]
* * *
> Where is the burden of proof in this case?
Re-thinking my first post of this morning, ISTM the party trying to get the money back from Grand-nephew would have the initial burden of proof in either case. But sometimes there is more than one burden of proof.
If executor agrees with your Mom and tries to reclaim the money on the basis he claims it was a loan owed to the Estate, executor has the burden of proving it was a loan, and will probably have to sue Grand-nephew to get it, unless Grand-nephew gives it up voluntarily. Of course, if Grand-nephew has already admitted that it was intended as a loan, then executor's burden of proof will be easier. Grand-nephew can then claim, as an affirmative defense, that the loan was to be forgiven on Uncle's death. Grand-nephew would have the burden of proving his affirmative defense.
OTOH if executor gives up on trying to collect, and your Mom wants to challenge that decision, then she would have the burden of proof, as stated in my original post. IF indeed Grand-nephew had any reason to challenge executor's decision, he too would have the burden of proving the basis for his challenge, but the missing link there was that he doesn't in fact have to challenge anything, he can just take a defensive posture and wait for executor to sue if he wants to try to collect.
If this actually gets to a posture where your Mom's interests are at stake, you as her POA are surely going to consult a lawyer to represent her in this, aren't you? That would be doing a good job as her POA. Don't try this yourself.
--
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Mike Jacobs
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Dad's Will and Stepmom, part 3
On Jul 31, 7:55 am, ss33ss...@gmail.com wrote:
> On Jul 23, 7:10 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > (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
* * *
> I spoke to a relative who said that the "will" as it is titled was
> actually a contract (according to Dad) and that MIL, as was
> suggested, had a similar "will".
* * *
> Now is it a will or a contract? What it says is unknown to us.
I thought you were quoting from the document. You don't have a copy? How do you even know about the sell-the-house-and-split-the-money provision? Or was that from Dad's document, and what you're saying is, you don't know what his wife's document says? OK, that makes sense. As a starting point, though, it also makes sense to assume the language of hers is identical, if that's what they said they were doing.
> How do I get
> information about this document? Sounds like the lawyer is the most
> logical place to start. Yes?
Several of us already suggested that, if you know it was drafted by a lawyer and know who that lawyer is because his name appears on the document (I assume you _do_ have a copy of Dad's).
> What is the best way to contact the lawyer? A call or a letter?
> Please advise.
To make a long story short, yes you should contact the lawyer who drafted the document, whatever it is, and find out all you can about it.
I would suggest a telephone call. It's faster than a letter in terms of your time, and you can accomplish a lot more in just a minute or so as well as shape your line of questioning based on how he reacts to your initial inquiry. In case he's not there to pick up your initial call, leave a message with your name and number and tell him you are calling in relation to the "Will of 'Dad' (insert his actual name here)" and you are ("Dad"'s) son but don't go into any details or he may decide not to call you back and you'll never know why.
And if that does not satisfy your inquiry, you should call around and find a local trusts and estates lawyer who will meet with you briefly -- probably charging a fee for that time, since it does not yet appear there is any way he can get paid by a contingent percentage fee -- and get additional answers to your questions. Bring all your paperwork with you when you do this.
You still haven't quoted the entire document to us, so we have no idea what it says and therefore what it is, regardless of what people are calling it, since its actual language is what matters and would make the difference between a will, or a contract, or just a "precatory" (as in "pretty please, if you feel like it, this is what I want") request that no one is legally bound to honor in any way. Good luck, and if you want any further input here it would probably not be very useful until you do the above.
--
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Mike Jacobs
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> On Jul 23, 7:10 am, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > (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
* * *
> I spoke to a relative who said that the "will" as it is titled was
> actually a contract (according to Dad) and that MIL, as was
> suggested, had a similar "will".
* * *
> Now is it a will or a contract? What it says is unknown to us.
I thought you were quoting from the document. You don't have a copy? How do you even know about the sell-the-house-and-split-the-money provision? Or was that from Dad's document, and what you're saying is, you don't know what his wife's document says? OK, that makes sense. As a starting point, though, it also makes sense to assume the language of hers is identical, if that's what they said they were doing.
> How do I get
> information about this document? Sounds like the lawyer is the most
> logical place to start. Yes?
Several of us already suggested that, if you know it was drafted by a lawyer and know who that lawyer is because his name appears on the document (I assume you _do_ have a copy of Dad's).
> What is the best way to contact the lawyer? A call or a letter?
> Please advise.
To make a long story short, yes you should contact the lawyer who drafted the document, whatever it is, and find out all you can about it.
I would suggest a telephone call. It's faster than a letter in terms of your time, and you can accomplish a lot more in just a minute or so as well as shape your line of questioning based on how he reacts to your initial inquiry. In case he's not there to pick up your initial call, leave a message with your name and number and tell him you are calling in relation to the "Will of 'Dad' (insert his actual name here)" and you are ("Dad"'s) son but don't go into any details or he may decide not to call you back and you'll never know why.
And if that does not satisfy your inquiry, you should call around and find a local trusts and estates lawyer who will meet with you briefly -- probably charging a fee for that time, since it does not yet appear there is any way he can get paid by a contingent percentage fee -- and get additional answers to your questions. Bring all your paperwork with you when you do this.
You still haven't quoted the entire document to us, so we have no idea what it says and therefore what it is, regardless of what people are calling it, since its actual language is what matters and would make the difference between a will, or a contract, or just a "precatory" (as in "pretty please, if you feel like it, this is what I want") request that no one is legally bound to honor in any way. Good luck, and if you want any further input here it would probably not be very useful until you do the above.
--
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
Credit life insurance - a good idea?
On Jul 28, 8:16 am, Bernie Cosell <ber...@fantasyfarm.com> wrote:
> I've noticed recently a lot of ads on TV pitching life insurance to old
> folks
As a general rule of thumb, life insurance of any kind makes the most sense for young, or middle-aged, breadwinners, whose families (and/or whose companies', where "key-employee" coverage is available) would be far worse off without their services if they were to die suddenly. Life insurance is generally a bad investment for older foax whose kids are grown, absent some special circumstance that makes it worthwhile in a particular case. Some families take out a "dependent child" life insurance rider on their own policy for their babies in a relatively small amount, often just enough to pay for meds and funeral expenses in case of the unthinkable, and then the kids can convert this into regular life coverage when they come of age.
Some forms of life insurance, such as credit life (the kind you pay for every month with your credit card bill, and which pays off your balance if you die) are a particularly bad investment, for at least 2 reasons: (1) you can get the same amount of coverage cheaper, or more coverage for the same outlay, with a plain ol' regular policy you get from your insurance agent instead; and (2) these policies are literally worthless if you're the kind of person who pays off your credit bills each month and don't carry a running balance, and practically worthless if you _do_ have a huge balance, since only you, not your heirs, owe that money, and thus it makes no sense for anyone but the credit card issuing company to urge you to take out life insurance WITH THE CREDIT ISSUER AS YOUR BENEFICIARY instead of a plain ol' policy giving the death benefit to your surviving relatives. But, since it does sweeten the creditors' pot in more ways than one, they certainly try to push it out the door.
I don't know about the specific policies Bernie refers to in the TV ads -- I guess I don't watch the right infomercials -- but for either or both of those reasons, it's probably not something truly worthwhile for the family of an elder person. The elder, and his or her family, would get better advice by going to sit down with their own trusted insurance agent for a review of their financial situation, and their actual insurance needs, as part of their overall financial and estate planning. Pitches for buying something like this on the basis of a TV ad are obviously directed to poorer but family-oriented old foax who are the most vulnerable to images of the destitution to which they would leave their family if they died without covering their own funerals, and leaves the same bad taste in my mouth as do TV preachers who urge old ladies to give their last pennies to support the preachers' Armani suit and BMW habits.
> Many count on this protection to help pay for final expenses, unpaid
> medical bills, outstanding loans and credit card payments.
But they shouldn't have to. Those unpaid debts, if any, are passed on to the decedent's estate, but NOT directly to the other family members. The debts have to be paid first, from the estate, before any additional money of the estate gets distributed to family, but a life insurance policy that names the intended individuals as its beneficiaries rather than the estate DOES NOT become part of the probate assets and IS NOT legally available for the creditors to claim against to pay the decedent's debts. Moreover, most states prioritize the debts owed by the estate and funeral expenses are typically the highest priority, meaning they get paid first, even if nothing is then left over to pay anything else. Decedent would be far better off, if he truly is destitute or insolvent and wants to be able to leave something behind for the family, to simply take out a plain ol' regular life insurance policy naming his loved ones as his direct beneficiaries.
> I assume that's to encourage folk to get much larger policies than they
> might need
Old foax generally don't need life insurance policies at all, except for a whole life or universal life policy that they may have taken out decades ago and which can be used as a retirement annuity, not just for the death benefit. When my last kid finished high school, I cancelled my term life policies (the ones with no cash value, that provided nothing _but_ a death benefit) and would recommend most older foax do the same.
> just to cover funeral expenses, but it got me wondering: why
> would you need insurance to cover debts?
You wouldn't.
> Surely the heirs don't have to
> cover the decedent's debts and other financial obligations?
They don't.
> [of course,
> that does make for another scenario: person near death maxes out their
> credit cards, gives all of it away as gifts, then sticks the estate with
> the CC bill].
That conceivably could happen, but really, how do you know when you're going to die? What if you live on in miserable poverty for another decade or so after maxing out your cards and being unable to pay? Not the sort of thing I think anyone would plan on purpose, even if the depressing thought of the consequences AFTER doing something that stupid might drive someone to suicide.
> I guess I don't know quite what happens with a negative-net-value estate.
> Obviously there's nothing to distribute to the heirs, but where do the
> debts and obligations go?
They disappear, if there is no money in the estate to pay them. The creditors get left holding the bag. Which is one of the reasons the creditors are spending gobs of TV advertising money to get people to take out credit life policies that truly benefit no one but the creditor.
Just my opinion, foax, but I have to call 'em the way I see 'em.
--
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've noticed recently a lot of ads on TV pitching life insurance to old
> folks
As a general rule of thumb, life insurance of any kind makes the most sense for young, or middle-aged, breadwinners, whose families (and/or whose companies', where "key-employee" coverage is available) would be far worse off without their services if they were to die suddenly. Life insurance is generally a bad investment for older foax whose kids are grown, absent some special circumstance that makes it worthwhile in a particular case. Some families take out a "dependent child" life insurance rider on their own policy for their babies in a relatively small amount, often just enough to pay for meds and funeral expenses in case of the unthinkable, and then the kids can convert this into regular life coverage when they come of age.
Some forms of life insurance, such as credit life (the kind you pay for every month with your credit card bill, and which pays off your balance if you die) are a particularly bad investment, for at least 2 reasons: (1) you can get the same amount of coverage cheaper, or more coverage for the same outlay, with a plain ol' regular policy you get from your insurance agent instead; and (2) these policies are literally worthless if you're the kind of person who pays off your credit bills each month and don't carry a running balance, and practically worthless if you _do_ have a huge balance, since only you, not your heirs, owe that money, and thus it makes no sense for anyone but the credit card issuing company to urge you to take out life insurance WITH THE CREDIT ISSUER AS YOUR BENEFICIARY instead of a plain ol' policy giving the death benefit to your surviving relatives. But, since it does sweeten the creditors' pot in more ways than one, they certainly try to push it out the door.
I don't know about the specific policies Bernie refers to in the TV ads -- I guess I don't watch the right infomercials -- but for either or both of those reasons, it's probably not something truly worthwhile for the family of an elder person. The elder, and his or her family, would get better advice by going to sit down with their own trusted insurance agent for a review of their financial situation, and their actual insurance needs, as part of their overall financial and estate planning. Pitches for buying something like this on the basis of a TV ad are obviously directed to poorer but family-oriented old foax who are the most vulnerable to images of the destitution to which they would leave their family if they died without covering their own funerals, and leaves the same bad taste in my mouth as do TV preachers who urge old ladies to give their last pennies to support the preachers' Armani suit and BMW habits.
> Many count on this protection to help pay for final expenses, unpaid
> medical bills, outstanding loans and credit card payments.
But they shouldn't have to. Those unpaid debts, if any, are passed on to the decedent's estate, but NOT directly to the other family members. The debts have to be paid first, from the estate, before any additional money of the estate gets distributed to family, but a life insurance policy that names the intended individuals as its beneficiaries rather than the estate DOES NOT become part of the probate assets and IS NOT legally available for the creditors to claim against to pay the decedent's debts. Moreover, most states prioritize the debts owed by the estate and funeral expenses are typically the highest priority, meaning they get paid first, even if nothing is then left over to pay anything else. Decedent would be far better off, if he truly is destitute or insolvent and wants to be able to leave something behind for the family, to simply take out a plain ol' regular life insurance policy naming his loved ones as his direct beneficiaries.
> I assume that's to encourage folk to get much larger policies than they
> might need
Old foax generally don't need life insurance policies at all, except for a whole life or universal life policy that they may have taken out decades ago and which can be used as a retirement annuity, not just for the death benefit. When my last kid finished high school, I cancelled my term life policies (the ones with no cash value, that provided nothing _but_ a death benefit) and would recommend most older foax do the same.
> just to cover funeral expenses, but it got me wondering: why
> would you need insurance to cover debts?
You wouldn't.
> Surely the heirs don't have to
> cover the decedent's debts and other financial obligations?
They don't.
> [of course,
> that does make for another scenario: person near death maxes out their
> credit cards, gives all of it away as gifts, then sticks the estate with
> the CC bill].
That conceivably could happen, but really, how do you know when you're going to die? What if you live on in miserable poverty for another decade or so after maxing out your cards and being unable to pay? Not the sort of thing I think anyone would plan on purpose, even if the depressing thought of the consequences AFTER doing something that stupid might drive someone to suicide.
> I guess I don't know quite what happens with a negative-net-value estate.
> Obviously there's nothing to distribute to the heirs, but where do the
> debts and obligations go?
They disappear, if there is no money in the estate to pay them. The creditors get left holding the bag. Which is one of the reasons the creditors are spending gobs of TV advertising money to get people to take out credit life policies that truly benefit no one but the creditor.
Just my opinion, foax, but I have to call 'em the way I see 'em.
--
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
Brother won't disclaim house on Mom's Will, part 2
On Jul 27, 6:55 am, George <gbecc...@gmail.com> wrote:
> It seems to me that a beneficiary must have an absolute right _not_ to
> accept something, if they don't want it. Otherwise, you could will
> someone your collection of junk cars.
I'll agree to that premise.
> And, if they have right to
> refuse, it seems like they should have a right to take some time to
> decide.
Also a reasonable premise. But it's just as reasonable for the executor to give the proposed beneficiary a time limit for that decision, after which the "default" result (if beneficiary fails to make a conscious choice by that deadline) should be that the terms of the Will get carried out exactly.
And neither of your premises address the issue I mentioned earlier, of whether the rejecting beneficiary is entitled to any other compensation if he rejects the specific gift that was offered. Generally, the default position is that he doesn't. However, that depends on the exact terms of Mom's Will. If Bro is also one of the residual beneficiaries, share and share alike with his siblings, then when Bro rejects the specific bequest of the house, the value of the house gets put back into the residual estate for executor to do whatever he feels appropriate by way of selling it, deeding it to a different beneficiary who wants it as part of that other beneficiary's share, etc. But the value the house represents will then be split equally among all the siblings. If Mom's Will provided that this was to be the result even while specifically bequeathing the house to Bro (i.e. if it said that the value of the house was to be taken into account as part of Bro's share of the residuary estate) then your decision seems a lot easier. You haven't, to date, told us anything about the other provisions of Mom's Will, so it's kind of hard to tell.
> Assuming those statements are true, I don't understand how the estate
> goes about forcing the issue. People (here) are saying that the
> executor can just 'do it', and that's that.
No we're not. Have you been paying attention? Several posters, myself included, suggested you send a "fish or cut bait" letter to your Bro if that has not already been done. If it has been done, I presume with your lawyer's advice, why are you still dickering around about it if your lawyer tells you it is now time to cut an executor's deed and deed the house to Bro? Fulfill your duties as executor which you owe to both your late Mom and to the Court, which appointed you to that position to carry out faithfully.
> I still find it hard to
> believe that this can be done, absent the beneficiary's consent, without
> an additional action by the court.
The beneficiary's consent is one factor, but not the only one. There is also the need for prompt and efficient administration of estates. You don't want Mom's Will to be clogging up the courts for decades, in Dickensian fashion, do you? The only thing that will happen that way is, all the money will go to the lawyers and other functionaries who endlessly dispute the issues, instead of to the foax Mom wanted it to go to.
George, YOU are an officer of the court. YOU were appointed by the Court to carry out the terms of Mom's Will. Your actions in that regard are legally binding on the third parties they may affect, subject of course to ultimate court approval of your final distribution and accounting. If you're not comfortable with that amount of responsibility, maybe you shouldn't have agreed to act as her executor. That, too, is an honor that the recipient is absolutely entitled to turn down.
--
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
> It seems to me that a beneficiary must have an absolute right _not_ to
> accept something, if they don't want it. Otherwise, you could will
> someone your collection of junk cars.
I'll agree to that premise.
> And, if they have right to
> refuse, it seems like they should have a right to take some time to
> decide.
Also a reasonable premise. But it's just as reasonable for the executor to give the proposed beneficiary a time limit for that decision, after which the "default" result (if beneficiary fails to make a conscious choice by that deadline) should be that the terms of the Will get carried out exactly.
And neither of your premises address the issue I mentioned earlier, of whether the rejecting beneficiary is entitled to any other compensation if he rejects the specific gift that was offered. Generally, the default position is that he doesn't. However, that depends on the exact terms of Mom's Will. If Bro is also one of the residual beneficiaries, share and share alike with his siblings, then when Bro rejects the specific bequest of the house, the value of the house gets put back into the residual estate for executor to do whatever he feels appropriate by way of selling it, deeding it to a different beneficiary who wants it as part of that other beneficiary's share, etc. But the value the house represents will then be split equally among all the siblings. If Mom's Will provided that this was to be the result even while specifically bequeathing the house to Bro (i.e. if it said that the value of the house was to be taken into account as part of Bro's share of the residuary estate) then your decision seems a lot easier. You haven't, to date, told us anything about the other provisions of Mom's Will, so it's kind of hard to tell.
> Assuming those statements are true, I don't understand how the estate
> goes about forcing the issue. People (here) are saying that the
> executor can just 'do it', and that's that.
No we're not. Have you been paying attention? Several posters, myself included, suggested you send a "fish or cut bait" letter to your Bro if that has not already been done. If it has been done, I presume with your lawyer's advice, why are you still dickering around about it if your lawyer tells you it is now time to cut an executor's deed and deed the house to Bro? Fulfill your duties as executor which you owe to both your late Mom and to the Court, which appointed you to that position to carry out faithfully.
> I still find it hard to
> believe that this can be done, absent the beneficiary's consent, without
> an additional action by the court.
The beneficiary's consent is one factor, but not the only one. There is also the need for prompt and efficient administration of estates. You don't want Mom's Will to be clogging up the courts for decades, in Dickensian fashion, do you? The only thing that will happen that way is, all the money will go to the lawyers and other functionaries who endlessly dispute the issues, instead of to the foax Mom wanted it to go to.
George, YOU are an officer of the court. YOU were appointed by the Court to carry out the terms of Mom's Will. Your actions in that regard are legally binding on the third parties they may affect, subject of course to ultimate court approval of your final distribution and accounting. If you're not comfortable with that amount of responsibility, maybe you shouldn't have agreed to act as her executor. That, too, is an honor that the recipient is absolutely entitled to turn down.
--
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
Bearer check endorsement
On Jul 27, 6:54 am, Stuart Bronstein <spamt...@lexregia.com> wrote:
> Stan <stanle...@hotmail.com> wrote:
> > Does a check payable to "Bearer" even require an endorsement, and
> > what if I gave it to one of my adult kids, who doesn't live with
> > me, to cash as Bearer.
>
> Yes, it will generally require an endorsement, because the person you
> are giving it to will generally need assurances that the check is
> good and that you will pay the money back if it isn't.
Your reply raises several excellent points, Stu, but this one puzzles me. Perhaps the adult kid could "ask" Dad to endorse the "bearer" check he is being given as a gift, but IMO that is unlikely to happen, and if it does, wouldn't Dad just say, "Heck with that, I'll give it to your sister instead?" If Dad's name doesn't appear anywhere on the check as maker or payee then IMO he has no _legal_ obligation to endorse the bearer check he passes on, gratis, to a family member. Even if theoretically he had such an obligation, there is the evidentiary problem of proving that Dad ever had his mitts on the bearer check in the first place. And if that duty is applied, why wouldn't it also apply to every one of the myriad individuals who handled the check at some point in its transmission to the person who actually tried to negotiate it for value? Wouldn't they all be "bearers" too? I think not.
Perhaps the check came in a letter addressed to "Current Occupant" so Son could be that person as much as Dad even if Dad is the one who opened the mail. Of course, without Dad's endorsement, there is no guarantee by Dad that the check is good. Why would Dad want to make such a guarantee by endorsing a check payable to order of bearer, when Dad gets no value in return except the goodwill of his kid?
OTOH the party who actually gives some value for the check, frex the bank where Son then takes the check to cash or deposit it, is going to want an endorsement from Son, as "bearer" since Son is then the one who is negotiating the check.
--
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
> Stan <stanle...@hotmail.com> wrote:
> > Does a check payable to "Bearer" even require an endorsement, and
> > what if I gave it to one of my adult kids, who doesn't live with
> > me, to cash as Bearer.
>
> Yes, it will generally require an endorsement, because the person you
> are giving it to will generally need assurances that the check is
> good and that you will pay the money back if it isn't.
Your reply raises several excellent points, Stu, but this one puzzles me. Perhaps the adult kid could "ask" Dad to endorse the "bearer" check he is being given as a gift, but IMO that is unlikely to happen, and if it does, wouldn't Dad just say, "Heck with that, I'll give it to your sister instead?" If Dad's name doesn't appear anywhere on the check as maker or payee then IMO he has no _legal_ obligation to endorse the bearer check he passes on, gratis, to a family member. Even if theoretically he had such an obligation, there is the evidentiary problem of proving that Dad ever had his mitts on the bearer check in the first place. And if that duty is applied, why wouldn't it also apply to every one of the myriad individuals who handled the check at some point in its transmission to the person who actually tried to negotiate it for value? Wouldn't they all be "bearers" too? I think not.
Perhaps the check came in a letter addressed to "Current Occupant" so Son could be that person as much as Dad even if Dad is the one who opened the mail. Of course, without Dad's endorsement, there is no guarantee by Dad that the check is good. Why would Dad want to make such a guarantee by endorsing a check payable to order of bearer, when Dad gets no value in return except the goodwill of his kid?
OTOH the party who actually gives some value for the check, frex the bank where Son then takes the check to cash or deposit it, is going to want an endorsement from Son, as "bearer" since Son is then the one who is negotiating the check.
--
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
Sold truck to friend, installments unpaid
On Jul 26, 11:37 am, jmk0317 <jenna_ku...@yahoo.com> wrote:
> My husband sold his truck last June to a man he was friendly with. The
> man did not have all of the cash & we were in a rush to sell it,
First mistake. Should have let friend go to a bank or other source to get the money if he didn't have cash in hand. Why would you want to take on the headache of being his banker? But you know that by now already.
> so we
> allowed him to make payments and had him sign a contract.
I assume this is a simple agreement you drafted yourself and that it said nothing about several terms usually included in professionally-drafted contracts of this nature. Frex, you don't say anything about whether, in your "rush" to sell, you thought to either (1) give him a conditional title, i.e. by filing a statement of lien (or whatever your state's DMV calls them) with the titling authorities, indicating that you had a purchase money security interest in friend's new truck, with all the legal rights thereto appertaining in your role as financier, or (2) simply held onto the title certificate yourself, even though you turned over the keys to friend, until friend came up with the money in full by your deadline. If friend failed to come thru, you could then simply have taken the keys back, applying the money he did give you as representing the rental value of the vehicle during the time friend possessed and used it, if that was what your contract provided.
IMO having the enforcement power of the law behind you by filing a formal security interest is the better way to go, but the self-help alternative of basically a "lease to own" type contract may work almost as well for some people especially in a friend-to-friend situation, as long as both parties are clear about the consequences of a failure of payment in this situation from the beginning. The main glitch I can think of off the top of my head would be your potential liability, if friend gets in a wreck or hurts somebody with the truck that is still titled in your name. Of course, you also needed to have a term in the contract requiring friend to carry adequate liability insurance to protect both him and you, as well as comprehensive and collision coverage to protect you as an additional named insured lienholder, since, until he pays you in full, you still have a beneficial ownership interest in the truck.
> The contract
> states that he balance was to be paid in full by December 2006, yet we
> are still owed $1500 (I also want to point out that each month we had
> to call him and ask for the payment).
So, how many months has it been since he made the last payment? Are you surprised he stopped, after months where he only payed after being nagged?
I'm guessing the friendship part is basically kaput by now. So you have nothing to lose by pursuing legal remedies.
> At this point, what can be done?
That depends on the terms of your contract, which you don't describe here except for the anticipated payoff date. We don't have enough information to help you much.
> Is there a threatening letter that I
> can send to him?
What sort of threat do you think would help, for a guy who has ignored your monthly nags for, oh, at least 7 months now (longer, if that $1500 represents more than one month's missing payment)? Just sue the guy in small claims and be done with it.
> Can I cc the credit bureaus?
Not a good idea IMO unless your finance agreement was in the usual professional form and you know what you're doing, preferably with paid legal advice guiding you. You don't want this guy to turn around and sue you and hubby for libel if you screw this part up and defame his credit.
> Can I sue?
Yes. Whether you will win is a different question, but in a small claims court context, chances are you will get a judgment for the amount of money the buyer still owes you if the facts are as you state. Keep in mind, though, that a judgment is just a piece of paper authorizing you to use legal enforcement tools to collect the stated amount, such as garnishment, putting a lien on his house, etc. It is no guarantee that the buyer will have any money you can collect, and if he is so broke he could not afford to rake together from any source the money to buy a used truck from a friend, my guess is he's likely to be pretty well judgment-proof. OTOH if he is not quite that broke, and does have any assets worth protecting, he could file for bankruptcy. There's lots of ways you could lose out on this deal especially if you neglected to perfect a legally binding security interest in the truck and if buyer now owns it free and clear of any liens in the eyes of the DMV even though he still owes you money.
> What will
> that cost me (we live in different states now)?
Oy vey. That makes it that much harder to sue him in small claims. Which one of you moved? If he's the one who moved, you can still sue him where you live, since that's where the contract took place. But you will need to have a process server in the buyer's new state actually serve him with your suit papers (unless your state allows a simpler means of service, such as certified mail). If you moved, you will probably need to hire a lawyer to represent you in your former state or else be willing to travel back there for court dates (there may be more than one) which could wind up costing you more than hiring a lawyer.
> Can I repo?
Probably not, unless you had aleady thought to put all the right language in your contract AND filed a proper form with the DMV to perfect your security interest in the vehicle as lender. If you didn't, it's too late now. Any attempt at repo now, without having jumping thru all the right hoops previously, means he could sue _you_ for a wrongful repo. Otherwise, suing him and hopefully getting a money judgment from the civil court, and then trying to enforce it through liens or garnishments after you get the judgment, is about your only valid remedy. 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
> My husband sold his truck last June to a man he was friendly with. The
> man did not have all of the cash & we were in a rush to sell it,
First mistake. Should have let friend go to a bank or other source to get the money if he didn't have cash in hand. Why would you want to take on the headache of being his banker? But you know that by now already.
> so we
> allowed him to make payments and had him sign a contract.
I assume this is a simple agreement you drafted yourself and that it said nothing about several terms usually included in professionally-drafted contracts of this nature. Frex, you don't say anything about whether, in your "rush" to sell, you thought to either (1) give him a conditional title, i.e. by filing a statement of lien (or whatever your state's DMV calls them) with the titling authorities, indicating that you had a purchase money security interest in friend's new truck, with all the legal rights thereto appertaining in your role as financier, or (2) simply held onto the title certificate yourself, even though you turned over the keys to friend, until friend came up with the money in full by your deadline. If friend failed to come thru, you could then simply have taken the keys back, applying the money he did give you as representing the rental value of the vehicle during the time friend possessed and used it, if that was what your contract provided.
IMO having the enforcement power of the law behind you by filing a formal security interest is the better way to go, but the self-help alternative of basically a "lease to own" type contract may work almost as well for some people especially in a friend-to-friend situation, as long as both parties are clear about the consequences of a failure of payment in this situation from the beginning. The main glitch I can think of off the top of my head would be your potential liability, if friend gets in a wreck or hurts somebody with the truck that is still titled in your name. Of course, you also needed to have a term in the contract requiring friend to carry adequate liability insurance to protect both him and you, as well as comprehensive and collision coverage to protect you as an additional named insured lienholder, since, until he pays you in full, you still have a beneficial ownership interest in the truck.
> The contract
> states that he balance was to be paid in full by December 2006, yet we
> are still owed $1500 (I also want to point out that each month we had
> to call him and ask for the payment).
So, how many months has it been since he made the last payment? Are you surprised he stopped, after months where he only payed after being nagged?
I'm guessing the friendship part is basically kaput by now. So you have nothing to lose by pursuing legal remedies.
> At this point, what can be done?
That depends on the terms of your contract, which you don't describe here except for the anticipated payoff date. We don't have enough information to help you much.
> Is there a threatening letter that I
> can send to him?
What sort of threat do you think would help, for a guy who has ignored your monthly nags for, oh, at least 7 months now (longer, if that $1500 represents more than one month's missing payment)? Just sue the guy in small claims and be done with it.
> Can I cc the credit bureaus?
Not a good idea IMO unless your finance agreement was in the usual professional form and you know what you're doing, preferably with paid legal advice guiding you. You don't want this guy to turn around and sue you and hubby for libel if you screw this part up and defame his credit.
> Can I sue?
Yes. Whether you will win is a different question, but in a small claims court context, chances are you will get a judgment for the amount of money the buyer still owes you if the facts are as you state. Keep in mind, though, that a judgment is just a piece of paper authorizing you to use legal enforcement tools to collect the stated amount, such as garnishment, putting a lien on his house, etc. It is no guarantee that the buyer will have any money you can collect, and if he is so broke he could not afford to rake together from any source the money to buy a used truck from a friend, my guess is he's likely to be pretty well judgment-proof. OTOH if he is not quite that broke, and does have any assets worth protecting, he could file for bankruptcy. There's lots of ways you could lose out on this deal especially if you neglected to perfect a legally binding security interest in the truck and if buyer now owns it free and clear of any liens in the eyes of the DMV even though he still owes you money.
> What will
> that cost me (we live in different states now)?
Oy vey. That makes it that much harder to sue him in small claims. Which one of you moved? If he's the one who moved, you can still sue him where you live, since that's where the contract took place. But you will need to have a process server in the buyer's new state actually serve him with your suit papers (unless your state allows a simpler means of service, such as certified mail). If you moved, you will probably need to hire a lawyer to represent you in your former state or else be willing to travel back there for court dates (there may be more than one) which could wind up costing you more than hiring a lawyer.
> Can I repo?
Probably not, unless you had aleady thought to put all the right language in your contract AND filed a proper form with the DMV to perfect your security interest in the vehicle as lender. If you didn't, it's too late now. Any attempt at repo now, without having jumping thru all the right hoops previously, means he could sue _you_ for a wrongful repo. Otherwise, suing him and hopefully getting a money judgment from the civil court, and then trying to enforce it through liens or garnishments after you get the judgment, is about your only valid remedy. 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
Employee prescription drug abuse?
On Jul 24, 7:28 am, Stan <stanle...@hotmail.com> wrote:
> I am the HR Director of a medium sized company, and I recently got a
> call from our health insuror about a "Zero Tolerance for abuse" policy
> that our insuror has with all their clients, including us They are
> threatening to not renew us (i.e., not submit a bid for next year) if
> we don't "read the riot act" to one of our employees.
Snipping the details of your situation, it sounds to me like "abuse" in this context means "drug abuse", not "verbal abuse" of a CS rep. If _anybody_ has thick skins, its CS reps, so I doubt that's what got the insurer's knickers in a twist.
Meds for severe pain often include scheduled narcotics. The insurer may simply be trying to verify that these drugs are being prescribed for actual medical reasons and that the doctor who signed the prescription is not simply a willing pawn of a drug-seeking individual. Such doctors do exist.
There is nothing in your description of the employee's behavior that sounds to me in any way abusive, either drug abuse or verbal abuse. Perhaps your paraphrasing of the situation left out something important. In any event, if the employee is in fact doing nothing wrong and just trying to get his medical condition and Rx costs covered by the insurer, he may well have a darn good claim against the insurer if they terminate his coverage, even more so if they pressure your employer to fire him and they do so. Your employer is not without potential liability exposure in this situation either, so I suggest you tread carefully and with the ongoing advice of your company lawyer.
If your employer had any backbone, and if the facts are exactly as you state, they would tell the insurer to go pound sand, and find a different insurer. Nothing unusual about a company changing insurers for their benefits plan; happens all the time.
OTOH if there is legitimately a reason for the insurer to be concerned about drug abuse, your employer needs to address that too. 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
> I am the HR Director of a medium sized company, and I recently got a
> call from our health insuror about a "Zero Tolerance for abuse" policy
> that our insuror has with all their clients, including us They are
> threatening to not renew us (i.e., not submit a bid for next year) if
> we don't "read the riot act" to one of our employees.
Snipping the details of your situation, it sounds to me like "abuse" in this context means "drug abuse", not "verbal abuse" of a CS rep. If _anybody_ has thick skins, its CS reps, so I doubt that's what got the insurer's knickers in a twist.
Meds for severe pain often include scheduled narcotics. The insurer may simply be trying to verify that these drugs are being prescribed for actual medical reasons and that the doctor who signed the prescription is not simply a willing pawn of a drug-seeking individual. Such doctors do exist.
There is nothing in your description of the employee's behavior that sounds to me in any way abusive, either drug abuse or verbal abuse. Perhaps your paraphrasing of the situation left out something important. In any event, if the employee is in fact doing nothing wrong and just trying to get his medical condition and Rx costs covered by the insurer, he may well have a darn good claim against the insurer if they terminate his coverage, even more so if they pressure your employer to fire him and they do so. Your employer is not without potential liability exposure in this situation either, so I suggest you tread carefully and with the ongoing advice of your company lawyer.
If your employer had any backbone, and if the facts are exactly as you state, they would tell the insurer to go pound sand, and find a different insurer. Nothing unusual about a company changing insurers for their benefits plan; happens all the time.
OTOH if there is legitimately a reason for the insurer to be concerned about drug abuse, your employer needs to address that too. 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
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