Louisiana Recent Legal Answers from Lawyers

A Will probate or succession must be opened with the court and a bank account for the estate created pursuant to court order.  The person whom the court appoints to administer that estate can then deposit all of the decedent's money in it, pay all bills out of it and distribute the rest according to the Will or, if there is no Will, according to the laws of succession.... Read Answer

Absolutely not. Under Rule 1.2(a) of the Rules of Professional Conduct set out by the American Bar Association, which every attorney is bound by, "[a] lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation", but "[a] lawyer shall abide by a client's decision whether to settle a matter." The decision to accept or reject a settlement is solely the decision of the client. The attorney must convey all settlement offers to the client and, if the client expressly authorizes the attorney, they may accept a specific amount for the client, but the decision is the client's. Now something else to consider, if the accident occurred on November 21, 2019, under Louisiana law a lawsuit for tortious injuries must be filed within one year of the accident or injury to preserve the injured party's right to recover. So, if the suit has not yet been filed, it should be filed as soon as possible. If the suit is not timely filed, the right to recover damages will be lost. Could it be that your attorney is calling to have you sign a verification of a petition to be filed?... Read Answer

Your grandmother can make a new Will.  A new Will automatically revokes any previous Will. Please note that a Will has no legal effect until a court admits it to probate (proving). Please also note that a "living Will" is actually an advance directive to physicians stating what you want to happen as you approach death. Maybe your grandmother signed something else which needs to be revoked.... Read Answer

You do not have to involve the court unless the mother objects to the relocation, which based upon your explanation appears to be a more beneficial location to facilitate visitation and she would not object. The process for relocation under Louisiana Law is governed by Louisiana Revised Statute 9:355 and entails the relocating parent provide the other with written notice of their intent to relocate more than 75 miles from the primary residence or out of state. The notice should be sent sixty (60) days before the proposed relocation date and be sent registered or certified mail, return receipt requested, or delivered by commercial courier. The following information needs to be included with the notice: 1) your current mailing address; 2) the intended new residence, including the specific physical address; 3) the intended new mailing address, if not the same; 4) your telephone number; 5) the date of the proposed relocation; 6) a brief statement of the specific reasons for the proposed relocation; 7) a proposal for a revised schedule of physical custody or visitation with the child; and 8) a statement that the other parent is entitled to object to the relocation in writing within thirty days of receipt of the notice and should seek legal advice immediately. If no objection is not given in writing within thirty days of receipt of the notice to relocate, then you would be free to relocate. If you have any questions, would like assistance with preparing and delivering the notice of relocation, or if an objection is made to the relocation, I’d be more than happy to help. Please feel free to call my office at (337)237-0492 to set up a free consult.... Read Answer

Hi Susan, The short answer is maybe. It will be dependent upon what evidence the officer may have been able to collect to support a charge for an OWI.  Under Louisiana Revised Statute 14:98, an OWI is going to be anytime you are behind the wheel of a vehicle, keys in the ignition, and you have a blood alcohol content of 0.08 or above, under the influence of a controlled dangerous substance, a medication which has a warning to not operate large machinery, or any combination of the three. In order to establish you are guilty of an OWI, the prosecutor would have to establish three elements: 1) that there was probable cause for a stop by the officer. Generally, this will be any traffic violation such as speeding, failure to use your turn signal, running a stop sign, etc. An accident is considered immediate probable cause as the officer needs to determine if anyone is hurt. The probable cause element just allows the officer to come into contact with you; 2) that there is reasonable suspicion that you may be intoxicated. This usually is established by the impression of the officer at the time such as them detecting an odor of alcohol, slurred speech, swaying, or seeing an open container in the vehicle; and finally, 3) Proving Intoxication. This is where the officer asked whether or not you were drinking. An affirmative answer does not mean you were above the legal limit, but gives them more reason to continue the investigation. This is where they will ask you to do the standardized field sobriety test, which you do not have to submit to. They will also ask for you to provide a breath sample to determine your blood alcohol content. This is also voluntary and you may decline to provide one.  The DA's office will have to weigh whether or not they believe they have sufficient evidence to charge you for an OWI given the totality of what evidence the officer was able to collect during his interactions with you. If you submitted to any of the standardized field sobriety tests, provided a blood alcohol sample, or made an admission to drinking prior to driving, the DA could possibly charge you. Nonetheless, if you do get charged with an OWI and/or if you are in need of an attorney to represent you regarding the careless operation and leaving the scene of an accident charge, please feel free to contact my office today at 337-237-0492 for an appointment so that we can discuss your case. ... Read Answer

The short answer is, no. You will have to wait until your child is born to bring the paternity action. Under Louisiana Civil Code Art. 193, the time period for filing a paternity action is within two years from the day of the birth of the child. As for how paternity would be determined, it depends upon whether or not you and your ex were married. Under Louisiana law, paternity is legally presumed for a child born during a marriage or within three hundred days from the date of the termination of the marriage. Otherwise, paternity can also be established if your ex were to execute a formal acknowledgement of paternity, (signing of the birth certificate is no longer a valid means of establishing paternity in Louisiana), or a court may order the necessary paternity tests and issue a judgment of paternity. If you have any further questions or would like to set up a free consultation to discuss your matter further, please feel free to contact my office at (337)237-0492 and set up an appointment.... Read Answer

Hello,  Assuming your father was not married at the time of his passing, which would complicate things as it would create a community property right to the surviving spouse with a naked ownership interest to his descendants, it is going to require that the succession be completed and likely entails communicating your intent to buy out your siblings' interest in the property. If you are not the independent administrator of your father's estate, then I would contact the sibling who is and see if they can complete the probate without liquidating your father's property.  To buy your siblings out of their interest, you'll first need the judgment of possession from the court, which will be signed at the close of your father's succession proceedings and will distribute the property in equal undivided portions to his descendants. As there is no will, it would be an intestate succession and under Louisiana Civil Code Article 888, the property would be divided equally between you and each of your siblings. Once you have the judgment of possession, you can then acquire the property you're interested in from your siblings by coming to an agreement on how much to buy out each of your siblings' interest in those properties. This can be done through a cash or credit sale agreement, which need only be filed into the conveyance records of the parish where the property is located, or involving the court again in what's called partition, which is a legal mechanism to distribute co-owned undivided property.    ... Read Answer

If you keep giving your siblings money, not even taking a promissory note and filing a lien in the deed records, sooner or later they will own 100% of the property by adverse possession. Contact an attorney who handles successions in the parish.  If you, too, do not have money for a succession (though you seem to have plenty of money to give your siblings), some attorneys will handle the succession in exchange for a lien on the estate and be paid when the house sells...which is what will have to happen if one of you does not buy the others out.... Read Answer

There are a number of charges which could be brought against her based on the details you provided, all of which are felonies. Since she used a knife, which is considered a dangerous weapon, and depending on the relationship between the victim and the aggressor, the district attorney has the option to charge her with any of the following: 1) aggravated battery, which carries imprisonment of up to 10 years and/or a fine of up to five thousand dollars; 2) aggravated second-degree battery, if it is determined that she caused serious bodily injury, which carries up to 15 years in prison and/or fine of up to ten-thousand dollars; and/or 3) domestic abuse aggravated assault which carries a possible sentence of imprisonment between one and five years and a fine of up to five thousand dollars. This list is not all-encompassing and other charges could be brought depending upon the circumstances surrounding the crime. With domestic abuse charges, if she has bonded out of jail on the charge, a term of her bond is to stay away from the victim. But if you believe that she still remains a threat, I would strongly suggest that a civil temporary restraining order be filed so that she is required to stay away. With a TRO, the judge has to consider all the facts alleged to be true and, if they find that there is a factual basis for her being a threat to his safety, they will issue the TRO for a period of around 30 days. Because of this, it is very important that the facts alleged in the TRO petition be very specific regarding what she did and how she still poses a threat to his safety. Once the TRO petition is filed, whether or not the TRO is issued, a hearing for a protective order will be set to determine if a protective order should issue for a longer period. If you would like assistance obtaining a temporary restraining order and protective order hearing, please give my office a call at (337)237-0492 so that we can set up a free consultation. ... Read Answer

There are a number of charges which could be brought against him based on the details you provided, all of which are felonies. Since he used a knife, which is considered a dangerous weapon, and depending on the relationship between the victim and the aggressor, the district attorney has the option to charge him with any of the following: 1) aggravated battery, which carries imprisonment of up to 10 years and/or a fine of up to five thousand dollars; 2) aggravated second-degree battery, if he caused serious bodily injury, which carries up to 15 years in prison and/or fine of up to ten-thousand dollars; and/or 3) domestic abuse aggravated assault which carries a possible sentence of imprisonment between one and five years and a fine of up to five thousand dollars.  This list is not all-encompassing and other charges could be brought depending upon the circumstances surrounding the crime.  ... Read Answer

Federal criminal cases are different from state charges in that there is no system of bail or bail bonds in federal cases. Generally, with state offenses, you get arrested and then a judge sets an amount for your bond. Once you post bail, you are free to go. There is no such system in federal cases. Instead, 18 U.S.C. § 3142 provides that pretrial release must be available unless there is: (1) a risk that the defendant will not appear for future hearings, or (2) a risk that the defendant will commit additional crimes.  If either factor is present, then the judge must consider whether some combination of release conditions (execute a bond, be under the supervision of a third-party custodian, such as a family member, travel restrictions, GPS monitoring, etc.) will sufficiently mitigate the risk, so that there is a reasonable assurance the defendant will appear for future hearings and will not be a danger to the community. The prosecutor usually has the burden of proof at a detention hearing, and unless the prosecutor meets that burden, the defendant is entitled to pretrial release. However, in some cases involving serious drug charges, the law imposes a rebuttable presumption against release. This means that the defendant must produce some evidence showing that he is neither a flight risk nor a danger to the community. That is why it is very important to determine the specifics of your brother’s charge. In particular, the amount of methamphetamines he is alleged to have been in possession of. If there is no quantity of methamphetamine specified, there is no mandatory minimum sentence, while the maximum sentence is 20 years. If there are 5 grams or more of a substance containing methamphetamine, there is a mandatory minimum sentence of 5 years and a maximum sentence of 40 years. If there are 50 or more grams of a substance containing methamphetamine, there is a mandatory minimum sentence of 10 years and a maximum sentence of life in prison. Pretrial release is an important consideration in my firm’s practice. In many federal criminal cases, the time between arrest and trial may be many months, if not years. We do not want our clients to languish in jail during this lengthy waiting period. Furthermore, it is easier for us to meet with and represent someone who is on a pretrial release. If you would like to speak to me further regarding your brother’s pretrial release prospects, please feel free to call my office at (337)237-0492 to set up a free consultation.... Read Answer

Hello Ravion, I have a multi-parish criminal defense lawyer based out of Lafayette and would be more than happy to discuss your boyfriend's case. I'll need some additional information regarding his charge to determine a suitable retainer for the representation, but I believe a payment plan could be worked out. Please feel free to call my office at (337)237-0492 and set up a free consultation so that we can discuss what can be done.... Read Answer

Yes, under Louisiana law you can sue a property owner for injuries you sustain as a result of their negligence. Here, the retail store left cardboard on the floor which posed a risk of someone stepping or tripping upon it.  Under Louisiana Civil Code Articles 2317.1 and Article 2322, slip and fall claims are governed by the principle of constructive notice. Under constructive notice, property owners will be liable for the damages caused by the "ruin, vice or defect" of their property if a victim can show that the owner knew or should have known about the problem with their property through the exercise of reasonable care. Typical situations where there can be liability will be where the property owner created the dangerous situation, where the hazardous situation has occurred there more than once, where the dangerous situation was in a high traffic area of the property, and/or where the hazard could have been discovered by the property owner had they conducted a routine walkthrough. A claim for slip and fall must be brought within one year from the date of injury, so depending on when this injury occurred you may not have very much time to bring suit. If your case is not timely filed, you may be barred forever from pursuing your claim, so time is of the essence. I would be more than happy to provide you with a free case evaluation to review the specifics of your claim and determine if you have a valid claim. Please feel free to give my office a call at (337)237-0492 to set up your consultation.... Read Answer

Yes, even during Phase II, the Louisiana Courts are sentencing incarceration for any and all offenses that warrant imprisonment. Now whether or not your boyfriend will be getting prison time will be wholly dependent upon the charge he has been found guilty of or plead to, whether the charge is a misdemeanor or felony, and, in some cases, the judge will also take into consideration the circumstances surrounding the offense. The judges that I have been in front of recently have been a bit more lenient on their sentences due to the concerns over COVID-19 spreading in the prison population and, where they can, have leaned more heavily towards home detention in lieu of prison.... Read Answer

Hello: Possession with intent to distribute charges are serious but with proper representation can be defended against under your particular facts. Your charge is going to be based purely upon the aggregate weight of the marijuana found. Under Louisiana Revised Statute 40:966, there are two elements the DA's office must meet to convict you. 1) Possession of the Schedule I narcotic in a specific weight, here 14 grams of marijuana; and 2) the intent to distribute or dispense that narcotic.  The issue the prosecutor will have to deal with will be the element of intent to distribute, which based upon your description you may not have. In order to establish your intent, the prosecutor in your case would need to show an overt act, such as you offering the weed to an undercover officer, the weed being packaged in individual bags, or you being parked in a vehicle in a location known for dealing. As with many cases, the DA's office likely charged you with the most severe crime they believe they may be able to prove in hopes of you taking a plea to a lesser charge. If you have been charged with possession with intent to distribute, it is very important that you obtain legal representation to protect your rights. Do not answer any more questions from law enforcement without an attorney present. If you would like to consult with me further regarding this issue please feel free to call my office at (337)237-0492 and set up a free consultation so that we can discuss what can be done.... Read Answer

Tina, In Louisiana, we recognize both “fault” and “no fault” as grounds for a divorce. Unlike the “no fault” grounds for divorce, which require spouses to wait a requisite amount of time before obtaining a judgment of divorce, under Louisiana Civil Code Article 103.2 upon proof of a spouse committing adultery, you would be entitled to an immediate divorce. Adultery in Louisiana is going to be considered any sexual contact between a spouse and another individual who is not the other spouse. This can be sexual intercourse, but can also include other noncoital acts. Such noncoital acts have been defined by the Louisiana courts as including, but not limited to, oral sex, genital contact, and laying on top of each other even if they did not have sexual intercourse.  Though there may be an issue obtaining a divorce under this statute based upon the facts you provided. You indicated that the infidelity occurred in 2013 and that you and he had separated in 2017, which would give you the grounds to seek a fault divorce, either under the infidelity or as you both had already been living separate and apart for the requisite amount of time, but you also note that in February of this year you both reconciled. Sadly, under Louisiana Civil Code Article 104, reconciliation between the parties will extinguish your fault cause of action and you will likely have to seek a “no fault” divorce. Under Louisiana Civil Code Article 102, a "no fault" divorce may be granted upon a showing that the spouses lived separate and apart for either, 180 days without minor children involved or 365 with minor children. This time will begin to run from the later of the date of separation of the parties or from the date of service of the divorce petition on the other spouse.  If it is your intent to obtain a divorce as soon as possible, it would be best to begin the process of separating, if you have not already done so, and prepare the petition for divorce so that your husband can be served. I am available and would be happy to assist in guiding you through this process. Please feel free to give my office a call at (337)237-0492 and set up a free consult so that we can discuss. Thank you.... Read Answer