LEGAL CORNER: MY SON NEEDS A TWIC CARD FOR A JOB, CAN HE EXPUNGE AN ARREST TO GET HIS CARD?

KPLC 7News - Oct. 2, 2019 - Part II - clipped version

LAKE CHARLES, La. (KPLC) - Submit your questions to news@kplctv.com. Civil matters only, please.

Question 1: An elderly relative recently died. At the time of her death, she was widowed and her only child, a son, died ten years before her death. She is survived by three grandchildren. The elderly relative executed a will years before the son died and she named the son as her heir. She never updated the will prior to her death. What happens to her estate because her son died before she did?

Answer: Because the son died before the mother, the provision in the will (or legacy as it is called under Louisiana law) leaving the son her property does not invalidate the will. Rather, the property willed to the son becomes what is called a lapsed legacy under Louisiana Civil Code Article 1589. The lapsed legacy goes to the descendants of the son, namely the three grandchildren.

Louisiana Civil Code Article 1589 states that a legacy lapses when 1) the legacy predeceases the testator; 2) the legatee is incapable of receiving the legacy at the death of the testator; 3) the legacy is subject to a suspensive condition and the condition can no longer be fulfilled or the legatee dies before the fulfillment of the condition; 4) the legatee is declared unworthy; 5) the legacy is renounced, but only to the extent of the renunciation; 6) the legacy is declared invalid; 7) the legacy is declared null, as for example, for fraud, duress or undue influence.

Louisiana Civil Code Article 1593 states that if a legatee, joint or otherwise, is a child or sibling of the testator, then to the extent that the legatee’s interest in the legacy lapses, accretion takes place in favor of his descendants by roots who were in existence at the time of the decedent’s death. The provisions of this article shall not apply to a legacy that is declared invalid or is declared null for fraud, duress or undue influence.

Question 2: My son is seeking employment with a telecommunications company in the area. He needs to obtain a TWIC card as a condition of that employment. He does not have any felony or misdemeanor convictions in the parish where we reside, but there is an arrest for unauthorized use of an access charge in another parish that was dismissed by the District Attorney. Can he seek an expungement for the arrest so that he can obtain his TWIC card?

Answer: Yes, subject to certain conditions required by law, he can seek an order of expungement for the arrest, but it must be filed in the parish where the arrest took place, not in the parish where he resides. In addition, the motion must indicate that the District Attorney of that parish declined to prosecute the charge and the District Attorney does not object to the expungement.

Louisiana Code of Criminal Procedure Article 976 states that a person may file a motion to expunge a record of his arrest for a felony or misdemeanor arrest that did not result in a conviction if any of the following apply: 1) the person was not prosecuted for the offense for which he was arrested and the limitations on the institution of prosecution have barred the prosecution for that arrest; 2) the District Attorney for any reason declined to prosecute any offense arising out of that arrest; 3) prosecution was instituted and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash or acquittal; 4) the person was judicially determined to be factually innocent and entitled to compensation for a wrongful conviction…

Question 3: I received a phone call from someone saying that they were calling from the Social Security Administration and that my Social Security Number is going to be suspended or blocked unless I pay money to stop the suspension or block. The call seems to be legit as the number showing up on the caller id is the toll free number for the Social Security office. Can the Social Security office do this?

Answer: No, they cannot. The Social Security Administration does not call people directly and tell them that they are going to suspend or block their Social Security Number and/or their bank accounts are going to be seized because their number is going to be suspended or blocked. Further, the Social Security Administration will not call you and tell you to send money somewhere. Most of these calls are coming from overseas and will use the toll free number to hide where they are really calling from. Should you receive such a call, do not give out any part of your Social Security Number, your bank account or your credit card number. Furthermore, you should contact the Federal Trade Commission at www.ftc.gov/complaint to file a complaint.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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