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Law Offices of Ronald W. Rutz
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March 7, 2000: A Lesson in Fraud; Probate Requirements

Q: I have been to a number of these so-called fraud seminars for Seniors. But no one rally gives a listing of the various rules. Would you?

A: I will try. Let's go through a few in no particular order.

Door to Door Sales. There are a number of exceptions but in general a solicitor must give you notification in writing set out in bold type of a three day cooling off period. Within three days your written cancellation must be sent to the address on contract, and the goods must be returnable in substantially the same condition as you received them. You are not required to pay to return them. If the goods are not picked up within twenty days of cancellation, then you can keep them. Nonetheless, always check with your attorney first.

Unsolicited Merchandise. If items are mailed to you which you did not request, you do not have to pay for them and you may keep and use whatever came.

Limited Warranty. The manufacturer's responsibilities shall only be those that are specifically listed. Otherwise the sale is a "buyer beware" transaction without any right for reimbursement. However, specific statutes, such as with the purchase of house, may prevent the use of limited warranties in certain transactions. If a requirement is to return a warranty card to the maker and a buyer fails to do so, then even the limited warranty may not be effective.

Mechanics Liens. Except for the construction of a new home, a worker or supplier can file a lien on property (and enforce it through foreclosure) even if the owner of the property already paid for the job. To protect yourself before disbursing funds either have lien waivers given to you by the general contractor (signed by the general contractor and the affected worker or supplier) or put the general contractor's name plus the person or firm protected by the act on any check.

And yes, you can always seek repayment from the general contractor if you have to pay twice. But if the general contractor has "flown the coop" or is insolvent or bankrupt, you may never get your money back.

Q: If there is a Will, are we forced to probate?

A: No and there seems to be some confusion, some of which may be caused by speakers at some seminars that are pushing the use of living trusts. There is a rule that a Will should be lodged (given) to the Court within ten days of death. But unless there is real estate (and that includes mineral rights) in the name of the deceased and not held in joint tenancy with another or unless the deceased had more than $27,000 of other assets (again not held in joint tenancy with another), then no probate is required, even with a Will.

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