03 Aug Week 2 Q &A with Gerald Gray – A Kansas City Attorney
Click here for week one questions and answers. Questions can be submitted on Facebook at G.Gray
Law, LLC or by email at email@example.com
My husband’s mom died, and she did not have a will or any insurance.
My husband and I paid her funeral expenses without any help from his brothers andsisters.
She had a house and a bank account.
However, my husband’s brothers and sisters don’t think we should be reimbursed for the funeral because it was his mom too. His oldest brother also wants to live in her house.
Is there anything we can do?
That’s an unfortunate situation but yes, there is something you can do.
You and your husband can file a claim against your mother-in -law’s estate for the amount that you paid for the funeral.
According to Probate, if you have incurred an expense for funeral costs, you can file a claim
as a creditor of the estate.
However, you must do so within a specified time.
Claims must typically be brought within 6 months after notice of letters are published, or within two months if such notice is mailed or served directly to a known creditor.
Therefore, you must be sure to keep track of what is going on with the Estate as it moves through the Probate process.
There could be a slight issue with collection in this matter.
For example, if your m-i-l named someone as her P.O.D. (payable on death) beneficiary of her bank account, then it will be paid to that person opposed to the estate.
Your brother-in -law has a right to live in the house if he and his siblings (being your husband as well as the other brothers and sisters) are the next-of-kin and would gain ownership of the house through inheritance.
Until the house passes though Probate, nothing can be done with it so someone might as well live in it, especially if they need a place to stay.
However, his living there does not mean that it is his house. Your husband has equal rights to the
Q2. My fiancée has a daughter. However, her mom is crazy.
She will not allow him to see his daughter whenever I’m around.
She often requires that he come to her house to see their daughter to ensure that he is not bringing her around me. This is so stupid.
My first question is does your fiancée have a parenting plan with established parenting time
or just visitation rights?
It is extremely rare that a Court would impose such restrictions on someone.
If you or your fiancée does not have a history of being abusive or there are other safety concerns regarding your presence, then this should not and would not happen if the Court was involved.
Your fiancée needs to speak with an attorney to see about seeking custody rights and establishing a defined parenting plan that allows him to spend time with his daughter at his leisure.
without restriction on who can be present.
You should document all these occurrences so that you are able to articulate the situation if called to testify in Court.
I’d also like to ask what has occurred between you and the mom in the past?
Think long and hard.
If you are the cause of contention by doing things such as name-calling, or posting things about this situation on social media, then you should stop.
The reality of this situation is, that if you are going to marry this guy, you should establish a relationship with his daughter prior to doing so because she will be your step-daughter eventually.
But you must also remember, that marrying your fiancée means that you will be stuck
with this situation so you must figure out a way to co-exist with the mom.
While a Court can order that the parties share custody and allow visitation, the Court cannot compel someone to get along.
An attorney can help with the visitation issues but you must figure out how to deal with her craziness.
Q3. I agreed to sell my car to my cousin.
He paid me $300, and was going to pay me the rest next month when he got his tax return.
However, my cousin is not reliable and my friend offered to pay me $200 more than what my cousin was buying it for so I ended up selling it to him.
I gave my cousin his $300 back but he is still mad and is talking about suing me or my friend for the car.
Can he do that?
You entered into an agreement (aka) a contract with your cousin and you are now in breach of the agreement.
In the first few weeks of law school we learned that a contract consists of three elements to be enforceable
Consideration which is typically money in most situations. However, it could be anything of value.
Once the contract was formed, then you were obligated to hold the car for your cousin.
If you had concerns about whether he would pay you the rest of the money, then you should have given a firm
You could have even told him that if he does not pay the remainder on that date, then he forfeits the $300.
You could have even told your cousin that you will not hold the car for him and that if someone else pays you in full, then you are going to sell it.
If you had done so, then there would be no breach.
The first issue a Court would determine is what were the terms of the agreement.
Since you likely did not write out the terms, the Court would interpret what they believe were the terms and apply contract law.
If the Court ruled in favor of your cousin it could award him the full value of the car.
That means that you could lose all the money you made from your friend.
The Court could even award your cousin more if he had to pay more to get a car than what he was going to pay
Now it is unlikely that your cousin would be successful if he decided to sue your friend because they did not have an agreement with one another and the car was never officially his because he only paid a deposit
Q4. A lady ran into the back of m
y car on my way home from work.
We called the police but they said that it would take an hour and 10 minutes for an officer to arrive because it was extremely busy at the moment.
Because I had to pick up my kids from school, I just decided to exchange insurance and contact information with the lady.
However, my husband jumped on my case for not waiting on the police.
Did I make a mistake?
Well it depends. It is not uncommon for the police to not respond especially if it’s considered a non-injury accident. However, because police did not respond and take a report, then there could be
issues with liability if the other driver is dishonest and blames you for the accident.
Because you gave her you contact and insurance information, she could file a claim with your insurance and tell
them a completely different story than what actually occurred.
If this situation ever arises again, always take photos with your cellphone before anyone moves the car.
This will not only show damage to the vehicle but could be used for evidentiary purposes if liability is later questioned.
Also, be sure to get the names and contact information for any potential witnesses if possible.
This is very important as those witnesses can be extremely helpful if this matter is ever litigated in Court.
If you have witnesses, then it is unlikely that liability will be an issue with the insurance company.
You could also walk in the report to a police station.
Urge the other driver to follow you so that you can complete the report together and they are less inclined to lie with you present. Finally, never make any statements such as “you aren’t hurt” or “it was my fault.”
Such statements are considered admissions which can and will come up at Court if it comes to that.
The adrenaline from typically takes time to wear off and it is common for injuries and stiffness to occur the next day or even days later.
When reporting the accident to the other person’s insurance company and they ask you about injuries, remember that it is a recorded statement, (which lawyers highly oppose). Therefore, do not say that you are not injured but say something like, “you are not in pain right now” or you don’t know.