In this post, the problems and people are real, but the names are hidden to protect anonymity… If YOU have a question for the Non-Judgmental Lawyer, email it to fttdwyw@gmail.com Enjoy! ~ Leigh
Dear Non-Judgmental Lawyer,
What are the advantages and disadvantages of bankruptcy- can I run up a bunch of credit cards and then just file for bankruptcy? Also, if you make a certain amount, can you even file for it? I think I might have a spending addiction… I have a ton of credit cards and have taken out several pay-day loans in the past.
What should I do?!? S.O.S. NJL!
Maxed Out in Moline
Dear Maxed Out in Moline,
Since I’m the non-judgmental lawyer I’m going to respond as if you are serious. But, I think you probably already know the answer to your first question, but, just in case… it really is not a good idea to run up a bunch of credit card debt, get 85% interest pay-day loans to cover the minimum payment, and then declare bankruptcy. Since 2005, the bankruptcy laws require that the judge make a determination whether you even qualify for a Chapter Seven or “fresh start” bankruptcy. The attorney representing you has to investigate your assets, liabilities, and income to determine if you qualify for a Chapter Seven before he/she even files the petition. In other words it’s means tested. If you don’t qualify for a chapter Seven, you can file a Chapter Thirteen which calls for a plan to pay off a portion of your debts over time. You can also be required to take counseling, which you have to pay for, and attorney’s fees for filing have gotten much more expensive since the law changed. I found an article that outlines most of the changes in the law. You can find it at http://money.cnn.com/2005/10/17/pf/debt/bankruptcy_law/. I also found a couple of articles that might help you get a handle on your addiction and plug up the hole in your bucket. You can find them at http://money.cnn.com/2004/09/28/pf/debt/chatzky_program_0404/index.htm and http://money.cnn.com/magazines/moneymag/money101/lesson9/. The articles are old but the advice is timeless. If you decide to get an attorney try and find one that will treat you as an individual not one of a hundred files in a box. If you aren’t able to get a handle on your problem, you could always send along a gift certificate to the old NJL. Good Luck!
Dear Non-Judgmental Lawyer- Don’t judge, but back in the old days (2002), I was charged with possession of paraphernalia in Mississippi. Should I have it sponged from my record? If so, how?
Sincerely, Mistakes in Mississippi
Dear Mistakes in Mississippi,
You are in luck! The Mississippi legislature passed a law stating that effective July 1, 2010 you can have your record for possession of drug-paraphernalia expunged. There are conditions, of course. These laws are by and large written by lawyers and you can count on enough hoops to jump through that retaining a good lawyer is required. You can find the new law at http://billstatus.ls.state.ms.us/documents/2010/pdf/HB/0100-0199/HB0160SG.pdf . Hold control and click to see the law. As you can see from reading the law, five years must have passed, all fines, restitution, and other portions of your sentence must have been successfully completed, notice must be given to the District Attorney in the county where you were convicted, and the Judge has to approve and execute the order. The effect of the law is to wipe out the conviction completely and seal your record except for the purpose of determining whether you would get ‘first offender’ treatment in the future, as you can only do this once.
Should you do this? Absolutely. As you go through life you will be asked on most applications for school, employment, to join the armed services, or some other organization if you have ever been arrested or convicted of any crime other than a minor traffic violation. This law states specifically that:
“The effect of the expunction order shall be to restore the person, in the contemplation of the law, to the status he occupied before any arrest or indictment for which convicted. No person as to whom an expunction order has been entered shall be held thereafter under any provision of law to be guilty of perjury or to have otherwise given a false statement by reason of his failure to recite or acknowledge such arrest, indictment or conviction in response to any inquiry made of him for any purpose other than the purpose of determining, in any subsequent proceedings under this section, whether the person is a first offender.”
I am not going to advise you on how to answer this question in all situations, but in most situations you would certainly be able to say when confronted by the FBI prior to your appointment for an important cabinet post “I thought it was like it never happened.” The law also allows a prospective employer to ask if you have ever had an arrest or conviction expunged. Expect that question to be on most applications soon. You may want to get a legal opinion at the time this comes up. My advice when asked if you should answer the question truthfully has always been, “yes.” A youthful indiscretion is understandable and can be explained. An untruthful statement speaks more to your character and your trustworthiness in the future. Regardless, if the cabinet position is in Mississippi or the person searching the internet for your prior record is your future father-in-law, it won’t be available and they won’t be able to find it. That way you won’t be breaking the law if you don’t explain that roach clip and pipe found under your car seat during spring break Biloxi 2002.
Dear Non-Judgmental Lawyer,
My mom likes her dog more than me. I know this because she’s said so. She told me she was going to leave all her money to the dog when she dies? Can she do this?
Seriously?
Done In By A Dachsund in Des Plaines
Dear Done-In In Des Plaines,
My suggestion is be nice to the dog and your mama. In order to understand the full ramifications of your actions, Google “Leona Helmsley” and her dog Trouble. Trouble has been living the high life both before and after the “Queen of Mean” died. The way your mama’s nonjudgmental attorney would handle this is to set up a trust to provide for the “necessities” required for that soon-to-be sole heir. “How much could a dog need?” you say. The Court in New York decided that enough to produce $190 thousand a year would be reasonable, and your mom can give the balance to the humane society when her only true friend passes on. This whole dog situation brings up another topic: Do you need a will? If you don’t care who gets your stuff, or you’re satisfied with what the State you live in would do with your stuff, then the answer is, “no.” In order to answer the question, you need to know your State’s laws of Descent and Distribution. In Illinois they are as Follows:
(**DON’T read this next section unless you are FROM Illinois and don’t have a will or are just a glutton for legal babble. Here at the desk of the nonjudgmental lawyer we want to keep it simple.**)
Illinois Laws of Descent and Distribution
A dead person’s property passes to his or her heirs, unless there is a will or other things which specify that it passes to someone else. The other things would be beneficiary designations, joint tenancies, pay on death designations and similar devices which specify who gets property on death. The property passing to heirs also is limited to property in the dead person’s probate estate. This excludes assets that are in a trust that says who gets the property after death. Heirs are determined as of the date of death. For instance assume X and Y are married and have no children together. Assume X has children by a prior marriage. X dies and Y survives, but then Y dies 2 days later. The heirs of X are Y and X’s children. Half of X’s property goes to Y and through Y’s estate to Y’s heirs. This happens even though two days after X’s death the only survivors of X alive are X’s children. Each state has its own rules for determining heirs. In Illinois the rules apply to the property of a resident decedent and the Illinois real estate of a non-resident decedent. The Illinois rules are called rules of descent and distribution. They are: The intestate real and personal estate of a resident decedent and the intestate real estate in this State of a nonresident decedent, after just claims against his estate are fully paid, descends and shall be distributed as follows: (a) If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent’s descendants per stirpes. (b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent’s descendants per stirpes. (c) If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse. (d) If there is no surviving spouse or descendant but a parent, brother, sister or descendant of a brother or sister of the decedent: the entire estate to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent if one is dead a double portion and to the descendants of a deceased brother or sister per stirpes the portion which the deceased brother or sister would have taken if living. (e) If there is no surviving spouse, descendant, parent, brother, sister or descendant of a brother or sister of the decedent, but a grandparent or descendant of a grandparent of the decedent: (1) 1/2 of the entire estate to the decedent’s maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes, and (2) 1/2 of the entire estate to the decedent’s paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving paternal grandparent or descendant of a paternal grandparent, but a maternal grandparent or descendant of a maternal grandparent of the decedent: the entire estate of the decedent’s maternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving maternal grandparent or descendant of a maternal grandparent, but a paternal grandparent or descendant of a paternal grandparent of the decedent: the entire estate to the decedent’s paternal grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. (f) If there is no surviving spouse, descendant, parent, brother, sister, descendant of a brother or sister or grandparent or descendant of a grandparent of the decedent: (1) 1/2 of the entire estate to the decedent’s maternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes, and (2) 1/2 of the entire estate to the decedent’s paternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving paternal great-grandparent or descendant of a paternal great-grandparent but a maternal great-grandparent or descendant of a maternal great- grandparent of the decedent: the entire estate to the decedent’s maternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. If there is no surviving maternal great-grandparent or descendant of a maternal great- grandparent, but a paternal great-grandparent or descendant of a paternal great-grandparent of decedent: the entire estate to the decedent’s paternal great-grandparents in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes. (g) If there is no surviving spouse, descendant, parent, brother, sister, descendant of a brother or sister, grandparent, descendant of a grandparent, great-grandparent or descendant of a great- grandparent of the decedent: the entire estate in equal parts to the nearest kindred of the decedent in equal degree (computing by the rules of the civil law) and without representation. (h) If there is no surviving spouse and no known kindred of the decedent; the real estate escheats to the county in which it is located; the personal estate physically located within this State and the personal estate physically located or held outside this State which is the subject of ancillary administration of an estate being administered within this State escheats to the county of which the decedent was a resident, or, if the decedent was not a resident of this State, to the county in which it is located; all other personal property of the decedent of every class and character, wherever situate, or the proceeds thereof, shall escheat to this State and be delivered to the State Treasurer pursuant to the Uniform Disposition of Unclaimed Property Act. In no case is there any distinction between the kindred of the whole and half blood. There are special rules for illegitimate children, both as to inheritance from them and inheritance by them. Generally an illegitimate child is an heir of his or her mother and her ancestors. Whether or not the illegitimate child is an heir of the father and the father’s ancestors depends on whether the decedent father has acknowledged paternity or whether a court has adjudged the decedent to be the father. There are also special rules for adopted children. Among other things, an adopted child is treated as descendant of the adopting parent. If the child is adopted after reaching 18 and never lived with the adopting parent before then, the child is an heir of the adopting parent, but is not treated as a descendant when it comes to inheriting from the lineal or collateral kindred (ancestors, siblings, cousins, etc.) of the adopting parent. By the way per stirpes means that if the person that is going to get your worldly possessions is dead when you die their share goes to their descendants
If you want to know where your stuff would go in the state where you live just go to Google and ask, “What are the laws of descent and distribution in (Insert your State here)”. As with most information you get off the internet be careful and consider the source, but in every state I’ve tried this in, some enterprising law firm that specializes in Wills, Trusts, and Estates has posted these laws on their website to convince you that you don’t want your older brother (who was always mean to you) to get your car, your music, and the Playstation.
If you decide you need a will, do you need a lawyer? It will be the policy of the NJL to try and save you money whenever possible, so the answer is, wait for it… maybe. If what you have are the aforementioned car, music, and playstation3, probably not. Places like Legal Zoom and other places on the internet that sell state specific documents have a will form for you and instructions for the right way to execute it with the right number of witnesses and notaries to make it a valid self-proving will. If you want to set up any kind of trust or complex alternate beneficiaries or if you have potential Estate Tax problems a Lawyer is well worth the money. While you are doing this, take care of your living will and durable power of attorney for healthcare and organ donation forms. Put them someplace together where you and your most significant other can find them before you go to the hospital or after you die. If you don’t know who to leave your stuff to, I would suggest the Foundation For the Support of the Non-Judgmental Lawyer. Leigh and Coralie can help you set that up!
Dear Non-Judgmental Lawyer, I wish I were writing to you under better circumstances, but my husband has brain cancer and I keep getting the run around about whether or not I need an attorney to apply for Social Security. Do I?
Thanks for your help,
Need to Know in Notasulga
Dear Need to Know (and everyone else who has a disability or a loved one with a disability),
The SSA has actually done a good job explaining how to apply for benefits. You don’t need a lawyer to make your initial application. What you need is preparation. When you apply, have all of your medical records and required information available and organized. Have your primary treating physician for the illness or injury that has disabled you or your loved one speak to your inability to work in his medical records. Before you apply, read all of the material online about the standard used to determine if you/they are eligible for benefits. There are some readily available videos you can watch on attorney’s web sites and produced by the SSA. The important thing is to have the material they need to approve your application included and available for review when you apply. If you do all of this and they still turn you down get an appointment with a good Social Security lawyer immediately. Take all of your material to the appointment and get your appeal filed. I have anecdotal evidence that it is useful to go down to the local SSA office and see if you can find an empathetic ear. Be persistent and don’t give up. And if you do need one, make sure that the lawyer you retain has plenty of experience. Good Luck.
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