Ask the Law Guy

Ask the Law Guy

Have you got a question about:

The law?
The legal system?
A legal problem?

E-mail it to me and I'll pick the most interesting to answer here.

"Thank you very much for answering my question. I love your website!"

"We have enjoyed your web site and have gotten more information off of it than any others. (Plus I got a Kick off the pictures) .Very informative and you have explained it in the basic way for even my Redneck hubby can understand".

"Well, I feel, as many other "Jail-House Lawyers" like you did a fairly good job on my brief."

I appreciate the GOOD advice. I plan to call my probate attorney to followup.

My husband and I have lived with my mother in her house since I got married 20 years ago. Over the past few years, my husband and I have drifted apart. He is beginning to get verbally abusive and this morning neighbors called the police because of an altercation between the two of us. I have a 4 year old daughter and grown sons and do not want this to continue. I want him to move out but he refuses. What rights do I have - or does he have? I am pursuing a separation/divorce - but what recourse do I have in the meantime to get him out of my mother's house? He does not contribute to the house at all, pays no rent and is actually withholding money from us.

You have several options:

If he is violent or has threatened violence toward you, you can seek a domestic violence restraining order that would require him to move out and stay away from you.
Since your mother owns the house she can demand that he leave and and file an eviction case if he does not. She might be able to charge him with trespassing.
Use a procedure called a divorce from bed and board and ask a judge to order him to vacate the residence.

You might be able to get a restraining order (first option) without a lawyer, but it is always a good idea to have a lawyer involved. The other two options should only be attempted by an attorney.

My Aunt passed away last year - my cousin convinced her to change her will to leave him everything and nothing to his brother. While she was alive, he had power of attorney. She was receiving checks for some land we sold awhile back - in the midst of her illness, somebody sent a note to the buyer of the land and instructed them to send the checks to my cousin's address and not my Aunt. As he had POA, we knew he could cash/deposit these checks. However, since she died, these checks which are made out to my Aunt in her name have been and are still being cashed. Is this against the law and is there anything we can do about it?

After your sunt's death the power of attorney was no longer effective. Upon your aunts assets and liabilities became the property of her estate. The executor or administrator of the estate is responsible for collecting assets and paying any of the estate's liabilities before distributing the estate to persons named in the will. If your cousin is the executor of the estate, he would be able to cash the checks on behalf of the estate.

If you believe that your case used undue influence to cause your aunt to change her will, you would need to speak with an attorney experienced in estate litigation to challenge the will.

Important fine print

The owner/operator of this website is Bryan Gates, an attorney in Winston-Salem, N.C. E-mailing a question to a website (even a cleverly designed website) is no substitute for live, in-person contact with an attorney if you have a legal problem. In order to avoid legal troubles of my own, I cannot answer questions about the laws of states other than North Carolina. For more information about The Law Guy, check out:

www.attorneygates.com

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