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Is Debt Passed on to Heirs? And More Free Legal Advice – Free Joe 2/14/12

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Martha: if a parent dies, is financial debt left unpaid, required to be paid by their adult children? (debt such as education loans taken out by the parent)

Joe Escalante: One of the purposes of probate is to allow time for any creditors to come forward and make claims on the estate. They have a right to collect their debts from the estate.

Janice: in the state of Alabama what can the kids do to probate Mom’s Will using a copy? Her husband died a couple of ears ago and we cannot find the original. His attorney told us he has copy of Mom’s, not the original. I know she had a Will, I saw it before she moved into the nursing home. I’m wondering if her husband threw it away, he did not like Mom’s kids and did everything he could against us. He wanted his only child to get their condo and as it stands that is the very thing she did not get since he died first. Can you give me advise on what to do now? My brother has talked to my stepDad’s attorney and said he does not trust him. Thank you very much.

Joe Escalante: A copy of a will can be probated if it can be determined bythe court to be the best evidence of the descendents wishes. Here’s some great Alabama probate info from Legal Zoom. You really need a probate attorney. Try one from Attorney Connect. My guess is that your un-trustable step dad’s attorney wont show up there. Click below.

LegalZoom: Here you go, Janice:

Matt: Is it possible to be charged for the rest of the rent owed for months after you have been evicted from an apartment? not backrent the remaining rent on the lease.

Joe Escalante: It is possible, if the lease language allows it. For example, if the landlord has turned down other potential tenants to rent to you, and you violate the lease and get kicked out, you would be at least on the hook for money the landlord loses by kicking you out, cleaning the place, detoxifying it, putting it up for rent again, and soliciting new renters.
The landlord has a right to be made whole. But the landlord also has a duty to mitigate their losses by actually trying to get a new tenant. They can’t just let the place stay empty and sue you for the unpaid part of the lease. They have to try.

Mel: Need to create a will & want to leave everything to my children & grandchildren. What are the dangers of simply using a free online will-maker?

Joe Escalante: I don’t know what a free online will maker is but each state has different rules and for $69.00 you could have a proven product from Legalzoom so that’s what I would do in your shoes. An attorney for a simple will is perhaps overkill in many situations, but a free online thing scares me. Legalzoom is just right, in a Goldie Locks kind of way.

Terry: Hey Joe, sister bought a Honda from dealership used with 66,000 miles four months later hit digital odometer it says 114,000 obvious ruse making payments what to do, her only means of transportation ?

Joe Escalante: Wow! Contact the district attorney in your county and try to get them to prosecute. Check your attorney general’s web site and see what kind of auto fraud info you find. You can call them too. They will talk to you.

Sharon: What document(s) do you need if you have wishes as to who you want to be in charge of your burial. Prefer another family member to do it rather than the children. I have no will.

Joe Escalante: You need to make a will and designate people to handle these things according to your wishes. Click below and get started. Otherwise some government functionary will decide all this stuff for you.

LegalZoom: Here you go Sharon:


I’m interested in speaking with a lawyer about a possible suit for fraud, deceit or breach of promise with someone in TN, while I lived in MA, that, based on their written assurances, I moved everything I own, obtained a new job in Tennessee, and got rid of a lot of my other things, as well as turned down employment in the MA area. Upon arrival in TN, all of their promises were unkept. I landed, went directly to the ER, diagnosed with shingles, plus a miscarriage, and they did not honor any of their assurances that they would assist me, as I moved to TN at their request and assurance they would help me, when/if I needed it, additionally he asked me to marry in the future, once he got his life in order. I came right back to MA to recuperate, am homeless (staying on a friend’s couch), still sick and trying to get back on my feet. When he took me to the airport, he told me things were postponed, that I should have waited for him to come for me. I looked on the internet and think I may have grounds to sue him. Is there a lawyer that you would suggest I speak with, and do I need to speak with someone in TN or MA? I have written assurances of this individual’s promises. He was the father of the miscarried child, and has done nothing to help with any of the expenses or difficulties. It seems there should be something that I can do to get help. I’ve spoken with a personal injury lawyer I worked with in the past, and he suspects I have a possible claim for breach of contract, deceit and intentional infliction of emotional distress. I put in a request for a lawyer referral in TN.

Joe Escalante: There are possible claims. A general promise is not enforceable in court. However, if the promisor knew that the promisee was relying on the promise to their detriment, and it was reasonable to believe that the promisee would suffer certain damages if the promise was broken, then the promisor might be liable for those damages.
The damages must be certain and provable. If the promisee was someone like Al Gore or Justin Timberlake, many lawyers would take the case because they’ve got cash to make this go away. However, if it’s just some hillbilly addicted to Mountain Due and living in a broken down Appalachian mobile home, you would have to put up several thousand dollars just to get the lawyer to start writing letters.

Thom: I’m considering placing my home in a revokable living trust. Can the beneficiary of a trust also be a trustee?

Joe Escalante: It is possible but you it’s tricky. You lose certain benefits that way, like protection of assets from creditors. Check with an estate planner if you are going to try to accomplish that.

Great Dane Rescue: Here’s a legal question: As I understand contract law, when we adopt out a Great Dane in exchange for an adoption fee, it is technically a Sale, and therefor we relinquish all rights to the dog, despite what our contracts say (owners must return the dog if unable to care for it). How can we ensure that we have legally binding title to the dogs we place, and that persons who adopt cannot sell, abandon, or dispose of their dog if no longer wanted?

Joe Escalante: You need a lawyer to help you draft something that would be enforceable. It is contrary to most notions of a fair sale for the seller to try to control the buyer in such a way.

Denise: Probate in Texas. How long does an executrix have to distribute the inheritances to the heirs? All accounts have been settled except for the distribution. The inheritance was supposed to be completed in November 2011 and she keeps stalling. Thank you.

Joe Escalante: I don’t know of a specific time limit. It’s all supposed to be finished by 4 years, however you can go to the court and petition them to step in and force the distribution.

Jeffrey: If you are in a common law marriage/partnership and sign a “contract” limiting financial liability, but then decide to become married in the traditional sense, must you nullify the limiting terms of the common law “contact” or will they be trumped by the traditional marriage automatically? Thanks!

Joe Escalante: I think it would be nullified by the marraige in most states but I’m not sure how Rhoad Island does things. However, it would be simple to play it safe and sign an mutual rescision of the contract.

Teresita: can anyone can transfer your property without your knowledge

Joe Escalante: If your name is on the title as sole owner, or Teresita “AND” someone else, then no, it cannot be transferred legally without your knowledge.

Debbie: Yes Mr. Escalante do grandparents have rights if they want visitation with their grandchild? My grandchild lives in another state. Thank you,

Joe Escalante: It depends on the state. Check out this website:
Some websites say they are grandparents rights organizations but they are really law firms waiting for a crack at your money.

Gerard: Can i get back pay for being suspended from my job for 2 1/2 years. without prior verbal, written an suspenion warnings. an are they allowed to keep my bonus check i already worked for..

Joe Escalante: It depends. If you were working under no contract, and you are not in a union, your employer can fire you for whatever reason they want, unless it’s discrimination. If you can prove that you earned a bonus check and they withheld it, they owe it to you. Consult with what is called a “Wages And Hours” attorney to see what your options are.

Coo: inheritance of real property like oil rights (a worthless $10 a year).. if my brother wants no part of it… how should that be handled? can it be given to his children? Or, can he give it to me and then I leave it all to his children in my will?

Joe Escalante: He can “convey” it to you. Put it in writing. Contact the leasing entity to see what they require for a valid conveyance . Then you can put it in your will, or place it in trust for his kids when you pass.

LegalZoom: That’s it for Free Joe Tuesday! Thanks to Joe for helping out. Have a happy Valentine’s Day and come join us on Friday for more free legal advice!

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February 17th, 2012 at 1:27 pm