Category Archives: Blog and FAQ

Can an heir contest a will if removed?

Q: A mother has a will made due to increasing age and to be prepared, she has two sons whom were both given her estate to split with special directions. If one wanted to live in the home the other would have to buy out the other half. One of the sons since has become disrespectful and has made death threats to the mother. The mother wants to re-write the will leaving that son out of the will. If and when that son contests the will what will be needed to uphold the will’s contents so the disrespectful son received nothing? (Pittsburgh, PA)

A: The mother needs to have her new will prepared by an attorney. Anybody can say they may “contest” a will if they feel they were excluded, but doing it is difficult. They will need an attorney to challenge the will and the legal grounds to do so are very limited and generally hard to prove. An attorney can be a witness to your mother’s competency and will give the added assurance that the will has no technical deficiencies that would render it facially invalid.

Can child-on-child sexual experiment be charged 7 years later?

Q: I have a 15 year-old and a 10 year-old, age difference is 5 years and 1 day. They apparently experimented with oral copulation, no ejaculation nor sexual attraction. There was no violence was used, however there was a minor threat. Could the 15 year-old be charged 7 plus years after the incident?

A: I am sorry to say that the 15 year-old who is now an adult can be charged as an adult in the adult criminal justice system with felony charges and face incarceration, in addition to Megan’s Law registration. If he or she would have been charged at the time of the alleged offense, the prosecution would have been in juvenile court. As a minor, treatment and therapy would have been ordered with the potential of having the charges withdrawn or expunged. These sex crimes statutes are very powerful. The best you can do is hire a lawyer and defend this. There will be defenses available such as delay in filing (prompt complaint) and lack of physical evidence. In addition, the victim may be appointed a guardian ad-litem and/or assigned victim’s advocate which may make matters worse or better for you as a parent.

What are my options and next steps?

Q: I am writing on behalf of my mother. She purchased a house in Georgia with her daughter approximately 8 years ago. Due to her daughter neglecting her health and well- being she came to live with me about 2-3 years ago in Pittsburgh. My mother has a trust that includes her share of the house and I am the trustee. Her daughter was able to refinance the house without my mother’s signature. The mortgage company has sent a notice to the trust, my mother and her daughter for the money. The notice from the attorneys for the mortgage company say the money was distributed in error. My mother nor the trust received any money, but I believe her daughter did and may have purchased a new home with the money. Your guidance on this matter would be greatly appreciated. (Baden, PA)

A: This is somewhat complicated and you need a lawyer in GA. My thought is that if this is a fraudulent transfer, the bank cannot legally foreclose on the house. However, my experience with banks lead me to believe that they will try. Do not do this on your own and try to negotiate with the bank. An attorney needs to review the trust instrument as well as the deed which should be titled in the name of the trust. In addition, your attorney will need to look at all the documents indicating how your mother’s daughter got a loan on a house titled (hopefully and presumably) in the name of a trust. Do not wait to act on this.

Must the Assistant DA need approval from the victims for plea bargain?

Q: I have a case involving multiple counts of different misdemeanors where I am the victim. I live in Pittsburgh, but this incident is pending in Armstrong County. We are up to the Pre-trial Conference stage. I read that this is where the lawyers start to consult and exchange evidence to determine the merit of the case? My question is does the ADA who is representing us have the ability to plea bargain the case without getting our approval to the settlement? Or should we be asked or give our approval to the whether it can be settled or moved to trial? (Monroeville, PA)

A: I can only speak to the practice of the DA in Allegheny County which is to always seek the input of the victim and the police as to any plea agreement. The DA will override any opposition from the police or victim if he or she thinks the position of the police or victim is unreasonable.

Is it against the law to get the same DA you had in a prior case that you were found not guilty?

Q: My husband had a prior child sexual assault case that he was found not guilty of. He recently had another false accusation, and has the same DA. I feel like that is impartial and just like a jury, there should be no ties It is like it’s personal now. Is this against the law, or is there a way we could say since she has prior ties with the last case she’s impartial to this case? (Penn  Hills, PA)

A: No, it happens all the time. If she was in private practice, she could defend him on two criminal cases, one being subsequent. She could also sue him on two civil cases, one being after the other. In either scenario, she may not be able to defend him on the first case, then prosecute him criminally (if she takes a job with the DA) or sue him in civil court, on the second case. Is she prejudiced against him? She could be if she thinks he was guilty of the first case. Will it matter, probably not. If there was prosecutorial misconduct alleged or found in the first prosecution, that could be reason for the defense attorney to file a motion requesting the DA to recuse him or herself from the prosecution.

How can I file a petition through the courthouse to receive my firearm back?

Q: Two years-ago I was convicted of a misdemeanor of simple assault attempt and had my firearm confiscated. The police told me I can have my property back but I must file a petition with the courts. (West Mifflin, PA)

A: With the conviction, you may now be ineligible to possess the firearm. I would need to know exactly what grade of offense you were convicted of. I would speak with a criminal defense attorney about a petition to return property. If it is economically worth it to spend the money, perhaps a transfer to a friend eligible to possess a firearm can be arranged through the petition.

Procedure in Allegheny County arbitration

Q: My husband and I are PRO SE on a case going to compulsory arbitration in Allegheny County. Will they (the arbitrators) just let us talk about what happened, or will we have to question each other? Also, how do we address the arbitrators? (Swissvale, PA)

A:  Arbitration panels in Allegheny County are composed of three attorneys from the legal community who are bound to follow state law and procedure. Most panels allow pro se litigants a little slack regarding conformity with the rules of civil procedure. However, I have seen panels apply the rules rigidly and cut people off for not complying with Rule 1305, attempting to admit documents that are not authenticated, or attempting to introduce hearsay statements. If this happens, a pro se litigant can find their case going south before they even know what hit them. Will you do better with an attorney? Most likely. Can you get by without one? Possibly.

CIVIL LAW, ARBITRATION, RULES OF PROCEDURE, PRO SE

What do I do?

Q: Supposedly I am being accused of selling to an undercover cop 6 months ago and didn’t hear anything about it. Suddenly, I’m told I had a warrant for my arrest on March 16th. I wouldn’t have even known if I hadn’t gotten a letter from a lawyer in the mail saying I should call them to represent me for my charge which I had no clue I supposedly had! (McCandless, Twp., PA)

A: This is common where the police are using a criminal informant (“CI”), who sets up various “controlled” buys from other people (usually users/addicts) for a period of time which could be months. At the end, all the people targeted are arrested and prosecuted. I have had success in these cases in getting the charges lowered to possession or withdrawn, but it takes a lot of work-motions to produce the CI, to produce records on all the CI’s cases, to release the terms of his or her deal and favorable treatment. Having a lawyer will benefit you greatly.

I received 1099-S from the sale of mom’s home. Is this a requiring 1041 filing?

Q: The county valued the house at $131,100 and it sold for $129,900. Doesn’t this count as a loss and therefore not income? (West Mifflin, PA)

A: Form 1099-S is used to report gross proceeds from the sale and exchange of real estate and certain royalty payments. A 1099-S form must be provided to the recipient and a copy mailed or emailed to the IRS. Just as you would list it and attach it to a personal return, you use it on the 1041 Schedule D (decedent’s fiduciary return). You will list the stepped-up value of the house based on what the fair market value was at death. So, if you sell it within in a year of your mother’s death, it is doubtful there will much of a capital gain or loss. There are other factors needed to be known here before I could conclude that the estate will not face a capital gain. It is also relevant as to whether you received the house as a beneficiary, or sold it from the estate as executor. I would suggest that you consult with an estate attorney.

Can I get a DUI expunged in PA?

Q: I pleaded nolo contendere to a DUI as part of a Phoenix Docket seven years ago and have been free of arrests and convictions since. Is it possible to get this expunged in PA?

A: You may not be entitled to a full expungement but under the November 14, 2016 changes to the PA Crimes Code, you may be eligible for a limited access order if you have a clean record for 10 years and your DUI was not graded as a misdemeanor 1 or above.

EXPUNGEMENT, DUI, LIMITED ACCESS, MISDEMEANOR