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Benjamin J. Comin

Benjamin Comin’s Answers

22 total

  • L;egal rights of left out heirs in an estate

    My great aunt passed away in 02,no will, when the estate was distributed two heirs were left out. The relatives and administratrix new of the these two relatives and was in communication with them since 2000. By their own admission in writting th...

    Benjamin’s Answer

    These situations tend to be complicated and, depending on the specific facts of your case, you may or may not be able to seek a legal remedy. Nevada law provides a method for the reopening of an estate to rectify errors, however only in certain circumstances. I agree with the previous commentor that you need to consult with a probate attorney to discuss the specifics of your case.

    Best of luck to you.

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  • I filed a civil suit against my brother in law and am currently in the Discovery phase. The case is for fraud and breach of con

    As I said i am suing for fraud and breach of contract. I intend to prove the will and trust created for my mother is invalid. My mother did not write it or consent to it and my whole family knows this. They have not come forward even though my ...

    Benjamin’s Answer

    Discovery is a critical period in litigation, if done right, will usually move a case toward settlement. Your particular question regarding how to get information is what a good trust and estate litigation attorney can advise you on. There are a multitude of tools that can be used to request documents, obtain admissions, ask questions in writing, and, most importantly, sit the opposing parties down in the hot seat and ask them questions. The other responding attorneys are right, the procedure is different depending on whether they are parties or not.

    Additionally, you may need evidence from other sources, such as a handwriting expert (if the will and trust were forged), medical records (to show your mother's capacity), etc. It sounds like you are trying to handle this case on your own. Having handled numerous cases with nearly identical scenarios, I would highly recommend consulting an attorney. Yes, you may have to front some costs initially, but if what you say is true, those costs will likely be paid by the trust or estate eventually.

    Best of luck to you.

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  • How do i file for a guardianship for my son?

    I have sole custody, although he is now 19. He is autistic, and I need to have this done to make sure he is safe!

    Benjamin’s Answer

    A guardianship sounds like an appropriate avenue to pursue, assuming your son's autism limits his ability to make decisions on his own and appreciate the consequences of his decisions. The first step to take is to file a petition with your local court asking to be appointed as guardian. Courts often provide forms to allow you to draft the petition on your own. The primary thing a court wants to know is: 1) Does your son really need a guardian; and 2) are you the right person to be the guardian.

    To answer the first question, the court will want to see an affidavit or assessment from a doctor stating that your son is unable to care for his own needs and needs a guardian. You should be aware that your state statutes or local rules may require the doctor to address specific topics in his statement.

    To answer the second question, you will need to show the court that you are an upstanding citizen (no convictions, drug habits, money problems, etc.). You will likely be required to notify other relatives that you have filed a petition, as the court wants to know if there is anyone who objects to you being appointed. In my experience, mothers in your situation have little problem satisfying the court as to this issue unless another person objects to your appointment.

    Once you have filed a petition to be appointed as guardian, the court will have a hearing and determine that a guardianship is in fact needed and hear any objectors. If nobody objects and the court is comfortable with you as a guardian, they will issue an order appointing you. You may have ongoing obligations to report to the court, but the court will tell you at that time what it will require.

    You can certainly try and do this on your own, however I would recommend saving yourself the headache and time and consulting an attorney. They will make sure you do everything right and will get it done much faster than you could on your own. My advice is intended as general information only as I am only licensed to practice in Nevada. Best of luck to you.

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  • My stepson is trying to get legal guardianship of his dad because I asked him to pay for one month of Alzheimer's nursing care.

    I have paid for 61 months and am out of money and need help. My daughter who is not my husbands daughter has paid for 3 months and depleted her savings. my husband, his Dad is 82 and I am 77. We have been married for 44 years. What are my opti...

    Benjamin’s Answer

    If you feel strongly that your stepson would not be a good guardian of your husband, you can file an opposition to his petition to be appointed as guardian. This is usually a pretty involved process and I would definitely recommend retaining an attorney. If you believe that your stepson will take advantage or harm your husband somehow you may even be able to get a senior advocacy group or your state's senior services involved to oppose the guardianship. I assume there is not guardianship now in place, however if he has Alzeihmer's, chances are he will need one. You can petition the court to be appointed.

    This information is general in nature and may be different in your jurisdiction. I would recommend consulting an attorney barred in your jurisdiction who can assess all of the facts and make recommendations. Best of luck.

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  • What is the easiest way for an executor to sell personal property of an estate to pay debt without the executor incurring costs?

    My husband is the executor and sole beneficiary of his cousin's estate. Cousin owned no real property. The only assets we can find that are a part of the probate estate are personal property, i.e. furniture, books, harpsicords, etc. So far we h...

    Benjamin’s Answer

    Unfortunately it is almost inevitable that it will cost some money to wrap up the affairs of the estate. The good news is that administrative costs are typically paid by the estate and given priority over payments to creditors. Also, most states have procedures that allow for expedited or summary administration for smaller estates under certain dollar amounts. These summary proceedings are often much less time and expense. Many courts provide self-help forms for these things.

    This is merely general information and not based upon the actual laws of your jurisdiction. I would recommend consulting with a local attorney who is barred in your jurisdiction. Best of luck.

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  • Family Estate Troubles. Aunt and Uncle hiding safety deposit box key!

    Aunt and uncle are obstructing execution of estate. Were are currently awaiting court date suing them for fraud and costs incurred from having to take this course of action. We found the safety deposit box key upon going through his property, but ...

    Benjamin’s Answer

    It sounds like you are doing the right thing to try and locate the safe depost box. However, due to the length of time that your existing suit may take, you may consider filing for a temporary restraining order. These are often processed on an expedited basis by the court and will prohibit your aunt and uncle from accessing any safe deposit box until it can be located by the executor and properly probated with the estate. Obviously they can still go and do so, but banks keep copious records of when safe deposit boxes are accessed and it will be easy to show if they violated the temporary restraining order. That fact alone may keep them from doing so.

    It seems doubtful that any bank would lie to you, presumably the executor of the estate, regarding whether they have a box belonging to the estate. It is certainly possible, although unlikely. Once you have the temporary restraining order in place and your suit proceeds to discovery, subpoena them for depositions and question them under oath about the safe deposit box. Perhaps the thought of perjury and its consequences will loosen their tongues.

    It sounds like you've contacted an attorney already, but if you haven't, do so immediately. This is a sticky situation and will require someone trained in the law. This is only meant as general information and not as legal advice. Consult a local attorney who is barred in your jurisdiction and can assess your case in greater detail. Best of luck to you.

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  • What to do when the girlfriend of my step dad whom is mentally disabled due to a brain injury 3ks. ago is harming him

    My step dad was in a motorcycle accident & had bleeding on the brain & swelling 3 wks ago. He was in a coma, regained conciousness, but still is confused about alot of things. The girlfriend had power of attorney 3 yrs ago, but used it to put him ...

    Benjamin’s Answer

    Guardianships are often used to allow one person to control the person or assets of another. A guardianship must be court ordered. In other words, you need to file a petition in your local court to ask the court to appoint you (or a professional guardian or someone you trust) to be your step dad's guardian. It is essential that you tell the court what has transpired and show the court documentation that your step dad is being taken advantage of.

    Once you file your petition, others can contest your request to be appointed as guardian. This will definitely require consulting a guardianship attorney in your area for help. There may be other facts relevant to your case and this is only meant as general information. I am admitted to practice in Nevada and recommend consulting a local attorney as there may be differences in your local laws.

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  • I am a co-guardian to my sister (49yrs old). I would like to give up my responsibilities as legal co-guardian. How can I do this

    Guardianship of my younger sister who is 49 years old. Our mother is co-guardian along with me. I do not want this position anymore. Legally, what do I do? Thank you.

    Benjamin’s Answer

    Typically, all that is required to terminate a guardianship is the filing of a petition with the court who ordered the guardianship. You did not mention whether you have a guardianship over the estate, person, or both of your sister. The procedure that you need to pursue will be different depending on which type of guardianship you have.

    A guardianship over the person will probably only require a petition tendering your resignation. You can either have an attorney do this or some individuals choose to do it themselves. Many local courts provide forms for these petitions.

    A guardianship over the estate will inevitably require you to file a petition tendering your resignation as well as an accounting of the estate. Typically an accounting must be filed with the court annually. So assuming you have been and will be filing another accounting, simply file a petition tendering your resignation and request that, upon approval of the next accounting by the court, that you be discharged as co-guardian. This may be a bit more involved and I would recommend consulting an attorney for this.

    This is only intended as general information and not specific legal advice. Consult with a local attorney who can assess your legal situation based upon all of facts. Keep in mind that I am admitted to practice in Nevada and not in New Jersey and there may be variations in your jurisdiction.

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  • Can I sue the lawyer that I hired to help me prove my brother in law faked a living trust and then proceeded to steel everything

    My brother in law acted as executor for my mothers supposed "living trust". I contested and hired a lawyer to help me prove the trust was fake. The lawyer didn't do anything and I fired him. He made friends with my brother in law and took payme...

    Benjamin’s Answer

    It also may be advisable to contact an attorney to determine whether you still have a legal claim against your brother in law and the alleged trust. You didn't mention any resolution to that issue and you may still be able to pursue your claim. I would recommend contacting a law firm that specializes in will and trust contests. There are several firms in town that do this type of work, including ours. Best of luck to you.

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  • I need to know options on how to help my dad who I do not feel can help himself

    My father lives in nevada. I live in pa. He has been told he has an early case of dementia due to drinking. He is married but the marriage is not good. His memory is horrible. Is there any way I can get legal guardianship of him?

    Benjamin’s Answer

    That's a tough situation but there is hope. Generally Nevada prohibits you from serving as guardian if you are not a resident of the state. The law does allow you to be appointed as a co-guardian as long as you are associated with a resident. This will allow you to retain some control over the guardianship. Generally a professional guardian will be more expensive than doing it yourself, but unfortunately Nevada requires you to reside here.

    To be appointed as guardian you will need to file a petition with the court to be appointed as co-guardian (with someone else that is a resident) and attend a hearing. Other individuals can contest your petition, but if no one contests it and barring any facts that would make the court question your capability to serve, you would likely be appointed.

    Because you are living out of state this may be difficult to handle. I would recommend consulting an attorney to handle the paperwork and find a reputable professional guardian. I'd be happy to help if you decide to go this route. Best of luck.

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