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Is an Adopted Sibling Treated Differently than a Biological Sibling During Probate? And More Legal Q&A – Free Joe – 2/8/13

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Kurt: I am not sure if this is the so called “wall” or not:
My question is?
We have an adopted brother in our family. How would he fare were he to survive a brother with no family, no will. Is he excluded as a non blood relative? We are in the State of Wisconsin

Joe Escalante: A valid adoption would make him a blood relative in the eyes of the probate court.

Suzie-Janet: How long does a person have to file a wrongful death suit?

Joe Escalante: There are different limitations in different states. And within those states there are even more variables. In California for example it’s 2 years for some stuff, 3 years for medical malpractice, and if you think the government is at fault, you only have 6 months.

Jerome: need to change my name back to what it was, i went my whole life with one name and then get out of the military and my birthcertificate has a different name on it, and that made it legal, not the ssn, how much and how hard is this?

Joe Escalante: As long as the court, and the public are OK with it, it’s easy and only takes a couple months. The most expensive part is usually publishing the hearing notice in some local worthless paper. Make it even easier by letting Legalzoom help you with it. The court and the public get a chance to object if you are changing your name to avoid your Camaro payments or something.

LegalZoom: Here’s the link:

Angela: I am a one-woman PR agency currently an LLC, but have heard I’d be better off an S Corp, what are the differences and benefits? Thanks.

Joe Escalante: These are great questions for Gary the tax expert here on Thursdays. Legally, there’s not much difference. A corp can be riskier however because they are harder to maintain properly.

LegalZoom: Get all the info here:

Ladaryl: What can and cannot be done with royalty free music??

Joe Escalante: That would depend on the original license. If something’s in the public domain, you can do whatever you want with it. However, make sure the recording is also in the public domain if you are going to mess with that, e.g., sampling.
If you are talking about something posted as royalty free music (but not necessarily PD), it would usually have some kind of license attached that limits the use in some way. Check out Mobi’s royatly free music site. It’s fascinating, but has many restrictions:

Eugene: Can divorce attorney fees be included in a bankruptcy in Idaho?

Joe Escalante: Attorney fees are generally dischargeable in bankruptcy court. Go ahead.

Alexandria: I came up with an invention and submitted it to Davidson and they got back to me, told me it was a great idea and when i wouldn’t pay them 700 dollars a few months later I seen the infomercial….what can I do?

Joe Escalante: There’s probably no way to prove that this product was not independently invented by a 3rd party. So, unless you have a smoking gun, you are better off putting your energy into one of your other inventions and chalk this up to experience.

Jesse: Joe, I own a small business, A Day Away Kayak Rentals L.L.C which I started in high school at the age of 16. When I turned 18, I purchased my DBA/LLC from Legal Zoom, filed for my Tax ID, etc.. Now, at the age of 19, I am open for business! 3 questions.

A concern has come to my attention from one of my good friends who is also in the same market. We both do not understand how to charge for tax on kayak rentals. We have contacted the IRS on numerous documented occasions and yet we have failed to conclude with a response.

My first question is, how should we approach this problem? Should we charge sales tax? Is it legal to charge sales tax if we do not know if sales tax applies to our service? If we have not charged sales tax in the past, will we be penalized? I am asking because you may have had some sort of experience with this.I am assuming you may not be able to answer however I thought it was worth a shot.

Second question is, how do I obtain a trademark? I have so many ideas for logos, insignias etc.. Do I need to trademark my brand? Can I do it in the long term? Is it costly?

Last but not least, will you like and share my businesses facebook page for me? I would greatly appreciate the support! Having a public figure like yourself do something as little as suggesting to the public that you “Like” my page would be geometric for me. Anything I can do for you in the future please let me know as well! Thanks again for your insight and if you are ever in Upstate New York, stop in! Would love to treat you to a day away on the house! Thanks again!

- Jesse Hicks
A Day Away Kayak Rentals

Joe Escalante: These are good tax questions for Gary the tax expert here on Thursday. Have you seen the movie Deliverance? If not, it’s a must see for someone in your line of work.

LegalZoom: Here are the details, Jesse:

Jamie: Hello, posted last week about my Virtual Mailbox Business. We have been testing the business for over 3 months now and had our first issue early this week. Our customer in Indonesia purchased items online with stolen credit cards and had the items shipped to our facility for forwarding. Luckily the packages did not ship out to Indonesia before the company that sold the $4000 item contacted us and we were able to ship the items back to the company in the US. There were 2 other companies that shipped products for this customer, we have since returned the items to the company. But lets say we did ship the packages out to Indonesia. consisting of about 5000$ in stolen goods. Could be be held liable for receiving stolen goods or receive criminal charges for shipping stolen goods. We did not know they were stolen, or purchased with stolen credit cards. We have closed the persons account and gave the address and phone number we have on file to local police when requested by the local PD. Thank you.

Joe Escalante: If you have a reasonable belief that you are shipping goods, you could be liable. If you are negligent in determining that the goods you ship are stolen, you could be liable. I have a company. We don’t take orders from Indonesia, just f.y.i.

Connie: My son’s wife him and took his baby. No divorce filed yet. It’s been 6 months. Is he legally obligated to pay child support? He’s been giving her some and will continue, but I just wondered about the legalities. Thanks!

Joe Escalante: This all needs to be settled by a court order of visitation and support. That can be done in the Family Law section of your county court system. Without an order, there will be too many fights about what is to be paid and who gets to see the kid and when.

Brandon: I opened an LLC in California on October 2011. I’ve never used it and now in the process of closing it. Do I need to pay the $800 tax fee for this year (2013)?

Joe Escalante: Probably. Check with Gary the tax expert here on Thursdays to be sure.

LegalZoom: Click here for the details, Brandon:

Patricia: I had my will prepared 6 months ago, I have not gotten it notarized yet, is it too late to do so? Does it have a certain time frame it has to be done?

Joe Escalante: In Pennsylvania, you do not need to notarize your will to make it legal.

Pennsylvania does allow you to make your will “self-proving” through a notary. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To do this, take your witnesses to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will.

Sandip: Can an individual and the individual’s SMLLC be the only partners in an LLP in CA?

Joe Escalante: According to the California Secretary of State, the LLP form of ownership is limited to persons licensed to practice in the fields of public accountancy, law, or architecture. To me, this means only individuals can be in an LLP, but this is not my field of expertise.

Heide: My husband died last wk we have been only legely seperated for 15yrs would a copy of death cert automaticly declare me legaly divorced when given to my divorce attorny? Please let me know

Joe Escalante: No.

Douglas: One of the signers/tenants on the lease of my commercial property (in PA) is asking for rent returned and lease canceled. She initially asked 3 days after the signing (via text message) but a week later said in a phone conversation she wanted to stay on. She says she printed the text messages out as proof (of which i do not remember). Is a print out of a text message sufficient? Also the other tenant wanted to continue despite the failed business relationship between the two signers. We’re currently 9 months into a 1 year lease.

Joe Escalante: The court will look at it as some kind of evidence and determine you were on notice or not, and weigh this against whatever notice requirements are in the written lease. Sounds like a mess.

Karin: A will is written to have proceeds of sale of the house split 4 ways, among the 4 children of the deceased. Would it be complex to change it to five ways, with the fifth ‘person’ being : evenly split that portion between the 8 grandchildren? I’m wondering if that may be a good way to help the 8 grandchildren a bit, and still give the major inheritance to the original 4, just a little less. Thank you.

Joe Escalante: If you clearly articulate your wishes, they will be carried out this way by the court.

You should look into having this house put into a trust so that this property will avoid probate. Probate will let the government hold onto it until all creditors have had a whack at it.

LegalZoom: Here’s the link, Karin:

LegalZoom: Thanks for your questions! Attorney Joe Escalante will be back next week with more free legal advice:

Have a great weekend and check out Barely Legal Radio w/ Joe Escalante in the meantime!

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February 12th, 2013 at 6:18 am