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Know your rights: A will does not have to divide property equally

By By Richard Alderman
Sept. 14, 2013 at 4:14 a.m.


I have five brothers and sisters. Some of us are on better terms with our father than others. Our mother passed away last year and left everything to our father. I have been told that if my dad dies, the law requires my father's estate be divided equally between all the children. Is this true?

If your father dies without a will, his estate will be divided between all of his children. With a will, however, he has the right to dispose of his property any way he wants. For example, he can leave all of his property to his children in equal shares, unequal shares or can leave some of the children all the property and others none. In fact, the law does not require he leave any of his property to his children. The bottom line is that under Texas law, a person has the right to leave property to whomever he or she wants.

The important thing is to have a will clearly spelling out how you want your property distributed after your death.

I live in a seniors-only apartment complex. Many of us find we often must walk on a driveway on the property. There is one small 10 mph sign, but the residents and visitors speed down the driveway about 30 mph. This is very dangerous because many of us use walkers or canes. I've emailed the manager to please put more speed signs up and put in speed bumps to slow people down, but nothing has changed. Is there anything that can be done legally before someone gets killed in the driveway?

It is very difficult to use the law to force someone to take steps to protect you. The law does, however, impose liability if reasonable steps are not taken and, as a result, someone is injured. It sounds like the best approach may be to let management know of the seriousness of the problem and the possibility of injury. I suggest you give the complex written notice that you fear for your safety because of speeding cars, and you expect they will immediately take reasonable steps to prevent it. Send it to the manager and the owner if you know who that is.

Let them know they could easily put up more signs or speed bumps. You may also want to mention that there could be substantial liability in the event a resident is seriously injured.

I know you have to stop for a school bus loading or unloading children if you are traveling in either direction. Does this apply when you are on a divided highway?

Now that school has started, it is a good time to remember that a driver traveling in either direction must stop for a school bus that is loading or unloading school children. You do not have to stop, however, if you are on the opposite side of the school bus on a separated roadway.

For example, if you are traveling east on a highway divided by a median planted with grass, you do not have to stop for a school bus stopped on the other side of the median. The highway must, however, be divided by a space where cars may not drive. A highway is not considered divided, however, if only a left turn lane separates the roadways.

I have been living in the same apartment for almost a year, just paying rent month-to-month. In June, my landlord and I agreed that we would extend the agreement until December at the same rent. Now, the landlord says he wants me out next month. He says our oral agreement is not enforceable.

As a general rule, agreements dealing with land, such as a sale or lease, must be in writing to be enforceable. There is an exception, however, for certain leases. A residential lease for a year or less is enforceable even if it is not in writing. If you and your landlord have an agreement from June to December, it is enforceable. Of course, you will have to prove that the agreement exists.

I was told that the Legislature abolished small claims court. Is this true? How does someone with a small claim now get justice?

You are correct that from now on there is no longer a court in Texas called "small claims court." But the change may be more a matter of form rather than substance.

What was formally known as "small claims court" has been fully incorporated into existing justice courts. Justice court will now hear all small claims cases under new rules that have the potential to make it even easier to "get justice."

Under the new rules, any claim for $10,000 or less may be filed with the justice of the peace. Unlike prior rules, the judge hearing a small claim now has much more discretion to participate in the trail and limit attempts by defendants to make the proceeding more lengthy or costly.

The rules also authorize the judge to allow a party representing him or herself to be assisted in court by a family member or other individual who is not being compensated.

This will allow someone who does not speak English well or who is just extremely nervous about being in court to have some assistance without hiring an attorney as required by prior law.

The new rules do change many of the details and timing of filing a claim, and you should talk with the clerk of the court about how to file.

While no one can say how the new rules may ultimately be applied, I strongly believe that justice court will continue to be the true Texas "people's court."

I have a problem with a used-car dealer who did not make promised repairs. It has now been two months, and despite numerous phone calls, he still has not done what he promised. It is not a lot of money, but I expect to receive what I paid for. Should I file a claim in small claims court?

Forcing a business to live up to its end of a bargain can be difficult. Of course, the first step is always to speak with the business and try to amicably resolve your problem.

It sounds like you have already done that. Small claims court could be the next step, but I have one additional avenue for you to consider - my Texas Consumer Complaint Center.

The Texas CCC, at the University of Houston Law Center, is staffed with lawyers and law students who may be able help you work out your problems. I suggest you contact the CCC and give them an opportunity to assist you. You can reach the Texas CCC at texasccc.com or 1-877-839-8422.

I have a sister who is thinking about getting divorced. She has one child. She was wondering how much she might receive for child support.

Texas has enacted guidelines to determine how much should be paid for child support.

Although the guidelines are not mandatory, most courts follow them. For one child, the amount is 20 percent of net resources. The court, however, is instructed to do what is in the best interest of the child and may vary from the guidelines.

I have lived in the same apartment for eight years. My lease is up next month. Is there a law about when a landlord must change the carpet? After eight years, my carpet needs to be replaced. The management has refused to change it.

Sorry, there is no law specifying when carpet needs to be changed. That does not mean, however, that you should not request a change before signing a new lease.

Generally, the relationship between a landlord and tenant is a matter of private contract.

Every time you negotiate a new lease - or every month, if you are on a month-to-month tenancy - you or the landlord may propose new terms. If you think you are entitled to new carpet, you should ask the landlord.

My guess is he will have to change the carpet to rent it to a new tenant, so he should do so as well for you. If he refuses to install new carpet, you have the option of moving somewhere else or staying put with your old carpet.

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 website at peopleslawyer.net.

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