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Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11508
Experience:  25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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I need to send a subpoena to my fathers retirement administrator

Customer Question

I need to send a subpoena to my father's retirement administrator and ask for copies of his insurance policies and retirement accounts.

My step mother claimed he had no will and also filed for year's support to cancel his debts. I have very good reason to believe that my father had a will and she is suppressing it or has destroyed it. I also have reason to believe that my father changed the beneficiary of his retirement and insurance benefits, which may have been his only assets.

I filed a caveat to the years support and also filed for temporary letters of administration. At a hearing the judge gave us 6 months to come to an agreement. Her attorney and she refused to have a meeting or answer any questions. The 6 month period was up on May 5 and another hearing will be scheduled soon to determine if I can be the administrator (she has not filed an objection or any other filing).

I was advised by an attorney that since I believe that his only assets were an insurance policy and retirement account that I should get a subpoena for the accounts. I got that today from the courthouse. It is a subpoena for production of evidence. However the first paragraph orders that the subpoenaed appear before the court on a certain (Blank) day and time.

The second paragraph says "The following are hereby subpoenaed." That is where I am assuming I put in documents I am requesting.

My question is: Can I ask for the documents in the second paragraph and leave the first paragraph blank?

I also got another subpoena to ask for her bank records and a third to ask for the evidence that she had forged a signature on her brothers insurance policy and taken a cash value of $600 from the policy. Her brother was going to prosecute her for this, but myself and several others convinced him not to. However I believe this evidence is very pertinent to this hearing. Her brother had consulted an attorney and it was determined that she did in fact forge the signature and get the cash value. However she was never prosecuted. Who do I need to subpoena to get these facts in court? Can an affidavit suffice?
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

RayAnswers :

Thanks for your question and good evening.My sympathy here for your situation and dilemma.

RayAnswers :

You will need to wait until the hearing is set.Then you would subpoena the custodian of the records for the retirement plan.

RayAnswers :

You would be subpoenaing all of the records pertaining to your (fathers name).This is called a subpoena duces tecum, it gets you the custodian and the records in dispute.

Customer :

So I cannot ask for the records before the hearing is set?

RayAnswers :

You would complete the subpoena and give it to the corut clerk for signature.The clerk will advise when it is signed and you ned to serve it on the plan administrator.

RayAnswers :

No because these are non party records.This administrator is not a party to the suit.

Customer :

The court clerk already signed and sealed the blank subpoena.

RayAnswers :

You can file discovery here--say motion to produce if you think the other party has the information you seek.

RayAnswers :

The subpoena needs to have a date here so that the custodian is subpoenaed to appear.

Customer :

Can you please call me?

Customer :

So a subpoena does not serve the same purpose? They asked me which type of subpoena I wanted; for records or for a person to appear. The top of the subpoena says "Subpoena for the Production of Evidence."

Customer :

Are you still there?

Customer :

Hello?

Customer :

If you are still answering please send me your partial response now so that I will not have to sit by my computer wondering if this session is now terminated.

Expert:  Ray replied 1 year ago.
I am still here the chat mode went off line.I am responding give me a moment.
Expert:  Ray replied 1 year ago.
I can only communicate here through the site.

Here is a sample subpoena duces tecum.Again you would need to complete it--you are requiring the person to bring the records to the hearing so you need to tell them when it is.They can be held in contempt for not appearing but you have to give them this information and then serve the subpoena on them.You will need to pay the service fee at court hosue to have it properly served..

http://ga-athensclarkecounty.civicplus.com/index.aspx?NID=2781

The custoidian here can act as a witness in th event you want it admitted into evidence.The custodian can authneticate the records as true and correct business records.This helps you use it as evidence to your case.
Expert:  Ray replied 1 year ago.
Please verify that you got my follow up.I will be happy to answer any other questions just post them.Thanks for your patience tonight.
Expert:  Ray replied 1 year ago.
I am available here, sorry we had a technical issue,let me know if you have more questions or need clariifcation..
Customer: replied 1 year ago.

Ok my last email is not showing.


 


Mr. Ray, you sent me to a link for Athens Ga. I am in Atlanta if that makes a difference. Clayton County. I have an ACTUAL subpeona. It is signed by the clerk ALREADY.


 


What you have told me so far is that I cannot get documents before a second hearing is set. You have also said that the witness must appear with the documents in hand at the hearing.


 


What you have also said is that there is that the only way I can get the documents before hand is to file a motion to compel.


 


Is this your answer?

Expert:  Ray replied 1 year ago.
I found the form that you had, thanks for your patience.This is a subpoena duces tecum--I know it has a different title but if you will complete it here with the date and time you can then serve it to the plan administrator here.The form you have is fine it needs the date and time before you serve it on the other party.

You will have to try and subpoena the custodian to the hearing, if you serve this they shouljd appear with the documents you need.They can testify--hopefully they will bring copies here for the court to see.You also can ask for time to review the records if necessary.

Since this is a non party there is no other easy way to get the records.You can subpoena them to a deposotion here--but you would need a court reporter to transcribe it, that is likley to cost you alot so realistically the subpoena here is the cheapest easiest way.Sorry for the confusion of titles here but this subpoena you have will suffice--here is a copy..

http://www.claytoncountyga.gov/pdfs/mag_ct_clerk/subpeona_for_documents.pdf

You can have the subpoena served by the sheriff if you will go back to clerk and pay service fees and they would serve it.

Thanks for your patience.
Expert:  Ray replied 1 year ago.
Here is a good reference to guide you through the process.Subpoena is covered under preparing for trial.

http://www.claytoncountyga.gov/courts/clerk-of-magistrate-court/general-information-on-filing-suits.aspx


I appreciate the chance to help you.Thanks again and good luck to you.
Expert:  Ray replied 1 year ago.
Here are the rules of civil procedure that discuss the procedure for subpoena and how to serve, etc.

http://www.sccourts.org/courtReg/displayRule.cfm?ruleID=45&subRuleID=&ruleType=CIV


Good luck to you here in court.
Customer: replied 1 year ago.
Relist: Inaccurate answer.
I would like an answer to the specific questions I have asked. Please see the thread. The expert I had gave me wrong answers.
Expert:  Ray replied 1 year ago.

I will opt out here and let another expert respond.At least two experts have already agreed with my answers and reference that I provided to you. .You have not been charged and there is no need to respond as it will slow down the process.Thanks for your patience.

Expert:  Andrea, Esq. replied 1 year ago.

Hello and Welcome to JustAnswer, My name is XXXXX XXXXX my goal is to provide you with Excellent Service, I see that the Expert who was assisting you has opted out of your question. I would like to help, if I may,

 

1. You asked, "Can I ask for the documents in the second paragraph and leave the first paragraph blank?"

 

Answer 1

 

Yes, you can. You would still have to fill in the date and time for the custodian of these records of your late father's account to make these files available to you for your review and copying. If the custodian objects, he will have to file a "Motion to Quash". Otherwise, he will have to make these files available to you;

 

I understand that the custodian is not a party to the suit, however, there are times when a non-party holds records which are necessary to a litigant. This happens often when a Subpoena is served on a cable television provider for the records of a subscriber. The Cable Company will notify the party whose records are being requested and if that person objects, then he woulod be the party to file a Motion to Quash,

 

 

2. You also asked,

 

"Who do I need to subpoena to get these facts in court? Can an affidavit suffice?"

 

Answer 2 & 3

 

2. You can serve a Subpoena on the insurance company who wrote the policy and you can also serve a Subpoena on anyone who had first hand knowledge of the forgery and who saw the actual forged signature. In other words, they cannot take the witness stand and say, "X told me he saw the signature and determined it was a forgery";

 

3. An Affidavit will not be admissible unless the Affiant is in Court and can be cross examined. If the Affiant (Person who signed the Affidavit) is not present in Court, the Affidavit would be excluded. The Rules of Evidence provide, with certain exceptions which are not present here, that a writing which is offered for the truth of its contents, will be excluded, unless the person who wrote it is available for cross-examination.


____________________________________________________________________

 

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

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