Know Your Rights: Will affects only property owned at the time of death

By Richard Alderman
Nov. 24, 2012 at 5:24 a.m.

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

You probably do not have the right to any of the property your father gave away before his death. During a person's life, he or she has the right to dispose property in whatever way he or she feels is reasonable. A will deals only with what is left in the person's estate after death. Assuming that your father was mentally competent when he made the gifts, I see no basis for you to seek the return of the property.

I want to build a new fence between my yard and my neighbor's. Do I have a legal right to put it on the property line or must it be on my property?

As far as the law is concerned, you have no right to "trespass" on your neighbor's property. Putting a fence on your neighbor's property would be trespassing. In other words, you may build the fence entirely on your property. If you want to put any of the fence on his property or even have the workers go onto his yard, you must obtain his consent. Of course, there may be community or civic association rules that change this rule.

I co-signed for someone who bought a car. He stopped paying and I had to pay $3,000 to settle the account. Can I recover this money from the person I co-signed for?

As you seem to understand, when you co-sign you must pay in the event the person you co-signed for does not. If you do not pay, it can adversely affect your credit rating and you could even be sued for the debt. If you pay, however, the law gives you the right to be reimbursed by the other party. I suggest you send the person for whom you co-signed a certified letter asking for payment. If he does not reimburse you, file a claim in small claims court. This also is a good time to remind everyone about the dangers of co-signing. In my opinion, you should never co-sign unless you are ready to pay. When a creditor asks for a co-signer, he is basically saying he has doubts that the other person will pay and wants a co-signer as a guarantor. As a co-signer, you should have the same doubts and consider the consequences when the person for whom you co-signed defaults.

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

I am often asked questions about how long a couple must live together to have a common-law marriage. In fact, there is no time limit for establishing a common-law marriage. To have a common-law marriage, a couple must agree to be married, hold themselves out as married and live together as married. The time period could be as short as one day.

Can my employer require me to take a polygraph or drug test?

Generally, a private employer may not require you to take a polygraph test, commonly called a lie detector test. There is a limited exception to this rule in the case of certain ongoing investigations of loss or theft. In most cases, however, a non-governmental employer has the right to require you to take a drug test. In fact, you usually can be fired if you refuse to take the test.

I owe a lot of money and can't pay my bills. My largest debts are my student loans. I have been told that even if I file bankruptcy, I will still owe my student loans. Is this true?

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. Student loans are discharged only if paying them would be an "undue hardship" on the debtor.

Generally, 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.

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



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