Tuesday, September 16, 2014




Know your rights: A will deals only with property owned at the time of deathKnow your rights: Tenant is responsible for damage to house

By By Richard Alderman
Dec. 7, 2013 at 6:07 a.m.


My father gave much of his property away right before he died. His will left everything to me. Do I have some right to the property he gave away?

Probably not. A person has the right to dispose of his or her property in whatever way he or she feels is reasonable. A will deals only with what is left in the person's estate after they die.

Assuming that your father was mentally competent when he made the gifts and was not tricked or defrauded, I see no basis for you to challenge them. It was his property, and he had the right to do whatever he wanted with it.

I bought a Christmas present for our niece. I was not sure of the size, but I assumed if it didn't fit, she could exchange it or get a refund. My wife, however, does not believe that my niece will be entitled to a refund. Who is right? I thought you could always return a gift that you didn't want for a full refund.

Actually, neither of you are correct; there is no set rule. Whenever you buy something, you enter into a contract with the store. Your right to return the item and whether you are entitled to a refund depends on the terms of your contract.

In many cases, a store gives customers notice of its return policy. For example, a store may post a sign or print something on the receipt. If you are aware of the policy when you buy the item, the policy determines your rights and the rights of the person to whom the gift is given.

If the item is sold with a "store credit only," or "exchange only - no returns," you are not entitled to a refund. In fact, if the store posts a sign saying "all sales final, no returns or exchanges," the person to whom you give the gift has no right to return or exchange it just because it doesn't fit or she doesn't like it.

In some cases, however, nothing is said about the store's return or exchange policy. In that case, the law implies a term consistent with what a reasonable person believes the term should be. In my opinion, most people believe that when you buy a gift, the person to whom it is given has the right to an exchange or refund if it doesn't fit or he or she does not like it.

Therefore, when nothing is said about returns, the implied term of the contract is that an item may be exchanged or returned for a full refund. The bottom line when buying a gift is to avoid problems in the future by always asking about the store's return policy.

My mother recently passed away. She died with no money. My brother and I had to pay her funeral expenses. Now, the debt collectors are harassing my brother and me about her debts. Do we owe this money? What can we do to stop the letters and phone calls?

When a person dies, his or her estate is responsible for paying any debts. If there are no assets in the estate, the bills are not paid. Relatives, such as a child, are not responsible for the bills, unless the relative had previously agreed to be responsible. For example, if you co-signed for your mother, you would still be responsible.

Unless you or your brother had agreed to pay your mother's bills, you have no obligation to pay, even if you paid the funeral expenses. In fact, the debt collectors are probably violating federal debt collection laws by asking you to pay.

I suggest you let the collectors know that you do not owe the money and that you believe they are violating the Fair Debt Collection Practices Act. Demand in writing that they stop all further communication. My guess is that will resolve your problem.

For the past five years, I have rented a house to the same tenant. Last month, he gave notice and moved out. When I went to see the property, I was shocked by all the damage. I had not checked the condition of the property in almost three years, and there was major damage. I took a security deposit, but the damage is much more. Am I limited to the amount of the deposit? P.S. I learned my lesson and will always periodically check the property in the future.

I am glad you have learned something from this experience, but I am sorry it has been such an expensive lesson. A landlord should always make regular trips to visit and inspect the rental property.

You are not out of luck, however, with respect to recovering for the damage to your property. The first thing you need to do is send the tenant written notice describing the damage and the costs of repair, stating that the security deposit will be applied to that amount. Let the tenant know you expect he will pay the remaining balance, or you will consider legal action to collect. If he does not pay, consider a claim in Justice Court. As I have said before, this court has replace small claims court and should be just as easy to use.

How long do you need to live together to have a common law marriage? I was told seven years.

This may be one of the most common myths about the law. There is no time limit for establishing a common law marriage. A common law marriage requires the parties agree to be married, hold themselves out as married, and live together as married. The time period could be as short as one day.

I owe a lot of money and can't pay my bills. I tried to pay what I owe but it is impossible. I can no longer stand the debt collectors bothering me and want to file bankruptcy. I have been told that even if I file bankruptcy, I will still owe my student loans. Is this true? They are my largest debts.

As you seem to know, when you file bankruptcy, most of your debts are "discharged." This means that you no longer have any obligation to pay. Not all debts, however, are discharged. The most common type of debt that is not discharged in bankruptcy is a student loan. Student loans are discharged only if paying them would be an "undue hardship" on the debtor. In most cases, it is very difficult to get a student loan discharged in bankruptcy. If most of what you owe is for student loans, bankruptcy may not be a good idea. I suggest you speak with an attorney board certified in consumer bankruptcy and get his or her opinion. You also should speak with someone about arranging for a payment plan for your student loans. There are payment plans based on income that allow you to satisfy your obligation without having to pay the full amount.

I have a life insurance policy that designates one of my three sons as the beneficiary. I also have a will that divides my property equally between all three sons. Which has priority, the life insurance policy or the will?

The beneficiary named in the life insurance policy will receive the proceeds of the policy, regardless of who is named the beneficiary in your will. The will deals with only the property in your estate. The proceeds of your life insurance policy do not become part of your estate and will go directly to the son named in the policy. I should point out that the son who is the beneficiary of the life insurance policy will also receive a third of your remaining estate pursuant to the will.

Richard Alderman, a consumer advocate popularly known as "the People's Lawyer," is a professor at the University of Houston Law School in Houston. His column appears weekly in the Victoria Advocate. Write to him at UH Law Center, Houston, Texas 77204-6391. He also maintains a web page at peopleslawyer.net.

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