93.1 KISS FM – Ask A Lawyer, Part 11

KISS-FM's Ask A Lawyer Segment with Michael J. Gopin

Woman

You’re listening to Mike and Trisha Mornings on 93.1 KISS FM.

Trisha

Okay. We’re back with Michael Gopin for our Ask a Lawyer segment. So earlier, we were talking about the 3M class-action lawsuit. And you can go to kisselpaso.com and check out more details about that lawsuit as well as get a link to his phone number and his website. But right now, we’re gonna ask just a couple of general questions that we’ve gotten either on the free 93.1 KISS FM mobile app or via the website. So, Andrew wants to know, he said, “I was driving down the interstate, and I saw a car in front of me about to be hit by a semi. The car swerved right, and ended up hitting the front of my car.” And he wants to know who would be at-fault for this accident, and do I have a claim I could potentially file?

Michael Gopin

Yes, Andrew, you would have a potential claim. From your description of how the accident happened, it appears that the car that swerved was the one that was at fault. He didn’t take proper evasive action and caused the wreck with you. He may try to blame the other vehicle, the semi-truck that may have been close to getting into an accident with him. But the fact is, that the semi didn’t hit him. There was no contact and doesn’t give him the right to take the action that he did without keeping a proper lookout. So, yes, you could potentially file a case against him. Hopefully, you weren’t injured, and it’s already been taken care of, but there is a potential case there, yes.

Trisha

Hmm, okay. Jack says his wife passed away, and he’s not on the mortgage. He said, “My wife didn’t have a will. What can I do?” This is pretty common. There are a lot of people who don’t have wills and don’t have anything written down. And so, I mean, there are specific legal steps that happen after that. So what can Jack do?

Michael Gopin

Well, there’s two different things that Jack could do. He could go to probate court. And even though the person didn’t have a will, which means he died intestate they call it, you can still set up a representative of the estate, you know, go to court. Get a personal representative, which is usually is the spouse, in this particular case, and that person will be in charge of distributing the assets of the estate. The spouse in Texas typically gets 50% of the estate in the event there’s no will, and the surviving children split the other half. The good thing about, you know, having a will is you get to determine who, you know, inherits your property.

The question here was more in terms of the mortgage, and to get the name of the person who is dead off the mortgage and the deed. You can do that also by what they call an affidavit of heirship, and that’s a device that you’d still have to go through the courts. But you would detail to the court who is a beneficiary, you know, the children, and the spouse, and so forth, and have it signed off, and have a hearing, and you can probably get the mortgage situation fixed that way. That’s a little bit simpler than the representative issue.

Mike

And then, just like that, you get to make the payments every month.

Michael Gopin

Right, what a deal.

Mike

Yeah, I’m telling you.

Trisha

Well, okay. So here’s a question I would have because he’s like, “My wife passed away. I wasn’t on the mortgage.” Could the kids, like, go around it? Maybe they don’t want him, you know, to get the house. And what would happen to the stuff in the house?

Michael Gopin

Well, that’s why you need a will so you determine, yourself, what happens to everything. And these types of situations, you know, can cause a lot of family problems. So in the event that we’re talking about here, no will, assuming that the property was community property which means it was bought during the marriage, and it wasn’t separate property of the husband before the marriage, assuming it’s community property, you know, they cannot actually kick the father out of the house. But they may end up owning half of the house, and that may not be, you know, what the wife really intended. So there’s a lot of complications that can, you know, happen, and a lot of families can really go to pieces during these situations.

Trisha

And so the stuff that’s in the house…

Michael Gopin

Same thing.

Trisha

…could the kids come in and start, like, taking possession of things?

Mike

Really?

Michael Gopin

No, they’re not gonna be able to take possession without a court order. But they certainly, you know, could potentially own half of the community property.

Trisha

And that will be real pleasant when they start…

Mike

Isn’t it always? I mean, family, don’t they agree on everything?

Trisha

Everything.

Michael Gopin

Of course, all the time. Money doesn’t matter.

Mike

Okay. What about in this kind of a situation? What about if, so you’re both on the mortgage, but when you bought the house together you weren’t married yet. And so, the maiden name is on there, not the married name. Does that make a difference?

Michael Gopin

No, it doesn’t make a difference at all. But it does make a difference with what type of property it is. So since this property would’ve been bought before marriage, it’s technically 50% the wife’s separate property, 50% the husband’s separate property. And when you’re inheriting that, the 50% separate property, there’s different rules for separate property than community properties. So the spouse, in that case, will only get one-third of the 50%, the kids would get two-thirds of the 50%, and it’s just a different set of rules.

Mike

Oh, wow.

Michael Gopin

So depending on when you purchase, it makes a big difference. So, my advice to people is to have a will and decide for yourselves what you want to do with your property and the personal items before you die. It makes it so much simpler.

Mike

It really does. It sounds so confusing, and a whole a lot of math involved.

Trisha

Yeah. And, you know, believe it or not, there’s…I mean, Mr. Gopin knows this. My dad’s a lawyer, and this is the kind of work he does. He does estate and probate stuff. And I cannot tell you how many times I have seen people fight literally over kitchen towels. It’s like, it doesn’t matter what’s in there, somebody else wants it. So it’s like, get a will, and don’t be general about it. You need to be real specific. And I know it’s a pain in the neck, and I know it costs a lot of money. But trust me, you don’t want to see some of the ugliness that goes on, you know, when people are trying to split up an estate.

Mike

Ask a Lawyer, Michael Gopin is our guest. Eric wants to know…and this is probably something a lot of El Pasoans can relate to. He says someone crashed into his yard and they damaged the rock wall. Can he take them to court?

Michael Gopin

Yes, Eric, you can take them to court. You can sue them in JP court, or you can sue them in district court here in El Paso. You know, you’d have to show and prove the damages to the rock wall. You get estimates of what it would cost to fix or repair. But, yes, you would have a case against them. Hopefully, they have automobile insurance that would help cover the situation. If they don’t, you may have a difficult time actually recovering money. But, yes, you can go to court and make a case.

Mike

Is there, like, a number, as a lawyer, where you look at something like this, like if the damage was minimal, or even as a person, like, do you even want to pursue this? For example, if you have a deductible or something like that, would it fall on the homeowner, or does it fall on the person who caused the accident?

Michael Gopin

The deductible doesn’t apply in this situation. The deductible is only for your insurance. So if Eric was using his own homeowner’s insurance to pay for it, then the deductible would be in play. But if he’s suing someone else for the accident, there’s no deductible issue for liability against that person. So, he wouldn’t have that worry or concern. It’s only when you’re using your own insurance to recover the deductible issue matters.

Trisha

Okay. And then the last one is from Oscar, and he wants to know, does expungement clear my record?

Michael Gopin

Yes, expungement would clear your record. It’s not automatic. You have to, again, go to the court, and try to expunge or get rid of that issue, or arrest, or whatever the situation was. You’d have to…you know, I would recommend going to, you know, a criminal lawyer who does this type of work exclusively. Maybe a board-certified criminal lawyer, and that can happen. Yeah, it takes some time. And there’s definitely effort involved, but it can be expunged. And then it would be clean. It wouldn’t be on our record anymore.

Mike

Is that the legal term for expungement? It’s like it never happened?

Michael Gopin

Correct.

Trisha

Yeah, it completely wipes your arrest record.

Mike

Oh, cool. Hey, does that also pertain to traffic tickets?

Michael Gopin

Yeah, I’m sure you could potentially do that, too. I haven’t heard anyone expunging traffic tickets before, but it is a criminal violation. So it could happen. I know you have so many that [crostalk 00:09:29.091].

Mike

Well, no, it’s just that…

Trisha

I was gonna say, Mike said, “Asking for a friend.”

Michael Gopin

Asking for a friend.

Mike

Like, some of them, like, they affect your auto insurance, you know, because they’re on your record for, what is it, three years or whatever. So that’s why I was asking.

Together

For a friend.

Michael Gopin

For a friend.

Mike

Okay. All right. Well, Mr. Gopin, again, a lot of education going on at Mike and Trisha Mornings with this segment of Ask a Lawyer with Michael Gopin. Thank you so much for your expertise. We do appreciate that.

Michael Gopin

Thanks for having me, guys. Have a great day.

Together

You, too.

Mike

And we’ll talk to you next month. Ask a Lawyer with Michael Gopin on Mike and Trisha Mornings. You can go to kisselpaso.com if, you know, something has occurred to you that you would like to get some answers to. Just go to kisselpaso.com at the top of the page, Ask a Lawyer, click on that. Read up on the services that Mr. Gopin can help you with. And then, you can submit your question for the next time we talk to Michael Gopin on 93.1 KISS FM.