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How Can I Find Out What I Inherited? And More Free Legal Advice – Free Joe 2/12/13

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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.

Dorothy: I am the beneficiary of a will which was probated without an attorney . This took place in 9/2010. real Estate was sold in 1/2011. I have not heatd anything since the sale. I believe that a distribution of the estate was completed by the Executor but no information has been provided to me. I have also not received anything from this distribution. How do I proceed to get information?

Joe Escalante: Go to the probate clerk at the courthouse that probated the estate. Ask to look at the file. If you are named as a beneficiary or interested party (like a creditor), you can file a petition to challenge the distribution, or object to it. The probate attorney should have looked out for your interests.

Dorothy: I was told by the probate clerk that no attorney was involved with prorating the will.

Joe Escalante: It doesn’t matter if there was an attorney. The person who acted as the executor or the administrator is the one responsible.

It’s rare that they complete the distribution of estate property without proof that all interested parties where notified. Some counties will let you talk to the probate attorney over the phone if you have a grievance. That can get the ball rolling, but you have to make formal objections in writing before the court.

Kimi: My electric bill is nearly the same as my monthly rent payment, as my landlord installed an inefficient electric furnace instead of a gas furnace. Is there anything my roommate and I can do about that?

Joe Escalante: Most local housing codes require heat to be installed in the building but not necessarily cheap and efficient heat. Theoretically the marketplace would take care of this because if he’s installing stuff that makes it more expensive to live in his units, he can’t charge as much rent.
It would probably be grounds to break the lease if the difference was substantial, but if there is no lease, and you are free to leave, your only options are to negotiate the rent down or leave. Sorry.

Kim: I have heard that you can get student loans minimized or even forgiven due to hardship. Where/how does one begin this process? Mine have quadrupled due to interest charges & fees.

Joe Escalante: I often hear of efforts to get something like this underway, but I’ve only heard of specific schools making real efforts to help their grads. In general, you cannot get out of these debts. That is your government’s “truth.”

Christina: I live in NC and have been told that I need to have something called a legitimation done. But no one seems to know how to do it. Help. I also want to do a step parent adoption or termination of parental rights of my ex. How?

Joe Escalante: This is kind of a North Carolina thing to make sure your kid has all the rights of a kid born in wedlock with respect to his father. Call the county family law clerk and ask them how to complete the process, or you need to get a N.C. family law attorney on board.
Parental rights cannot be terminated without the biological parent’s consent. Again, you are going to need a family law attorney.

Keysha: I want to start a non profit organization but at the same time I would like to compensate myself and staff. Would that fall under a 501c?

Joe Escalante: You can pay yourself a reasonable salary in a non-profit company. If you want to receive tax exempt donations, you should try to qualify your non-profit as a 501c3 tax exempt entity. Follow the link below for some real info. Good luck.

LegalZoom: Here you go, Keysha:

Hilda: Can an employer fire you for refusing to do something that is not outlined in the official job description, and then try to back up their decision by changing the job description after the fact? Also, there is no “and other duties” clause.

Joe Escalante: Maybe, maybe not. It depends on a lot of things. If you think you’ve been wrongfully terminated, you should look into filing a claim with the State Labor Commissioner. If you want to keep the job, you should look into doing what they’re asking unless it’s illegal or morally offensive.
Then try to sit down with management and make a new job description to help them with the next person that might have this issue. You will be president in no time.

Xiomara: My partner is divorcing his wife and filed a court case in Colombia where they married. She stole some of my photos, videos and journal entries from his external hard drive. She wants to present these in court. Is there a way that I can prevent her from using my information that was obtained without my permission?

Joe Escalante: A good lawyer should be able to file a successful motion to exclude illegally obtained evidence in a civil trial, but that same evidence might be again obtainable through normal discovery proceedings. And they could give notice to not destroy or wipe and hard drives that would contain evidence they would need to seek justice on their side.
So you might spend a lot of money getting it excluded, only to have it admitted later on. Or maybe you wipe the drives clean, improperly, and end up in jail. It’s a mess.

Shirley: I am about to start a business involving real estate. What type of plan protects property in case of being sued.

Joe Escalante: This sounds like an insurance question. If you’re talking about your own personal property, LLCs and corporations provide protection for personal assets against liabilities of the respective entities.

Tom: Non compete Claus on a hourly employee be used if employment with different company is chosen in same field ?

Joe Escalante: Some of these non compete clauses are enforceable, but many are not. It all depends on the language but in general, you have a right to earn a living in your chosen field. If someone wants to promise you a lot of money in a contract, and then fires you, they must pay all the money promised throughout the term.
In a case like that, it’s easy for them to forbid you to work in that field because they are still paying you during the term. However, if someone fires you, or you chose to quit on an “at-will” working arrangement, it’s very hard for them to concoct an enforceable non compete agreement.

Jesse: A trademark just was registered to my company. I might be moving my company to another state soon. I’m not sure yet how I’m going to work out the location change but is it possible for me to transfer my trademark if I have to dissolve my LLC in my current state and reopen in another? Thanks!

Joe Escalante: You can transfer ownership in the trademark to the new LLC pretty easily. Or to yourself, then later transfer it to the new LLC.

Barb: If i have reports of when i did something wrong at work but it was never signed or given to me is there any way i can have that removed from my employee files

Joe Escalante: That would depend more on company policies than the law. It would be “legal” for them to keep it in your file, or remove it. But it would not necessarily be legal for them to violate written, and relied upon, company policies.

Joseph: Is removing the ” check engine light ” (MIL) illegal in a used car sale in NJ between individuals? Someone just did it to me after i lost both my cars in the flood from Hurricane Sandy. Nice right?

Joe Escalante: If it was done to defraud you, it is “fraud.” However, it also may violate U.S. Code 7522 prohibiting people from shenanigans that can pollute the air when selling vehicles.

Angela: Is it considered copyright infringement if I use an exercise from a book an make it into an app?

Joe Escalante: It’s probably not. What you have described to me in your comment does not pass the threshold of being “minimally creative” to qualify for trademark protection. It’s like a recipe, it’s a list of ingredients, which is also not protectable. I say you make that app!

Call my show this Sunday on KTLK if you want more analysis on what you can and cannot do in this respect. It’s all we talk about.

LegalZoom: You can see the schedule and phone numbers for Joe’s shows at the bottom of this page:

Kimberly: house at the end of December. The man who rented to her told her he was the owner and not to worry about the deposit because he just needed to get the house rented. She paid him $490 in rent for that month. Come January he said don’t worry about the rent until all the repairs are made…this house has bad water, leaking carbon monoxide from the gas lines or something and the windows wouldn’t stay shut…it was a mess she couldn’t get the gas turned on because of the problems for almost a month and it is winter time! anyway come to find out he was a property manager and the actual owner started eviction proceding and took her to court. At court she had all the money that she needed to pay him but she wanted the repairs made. He said he wouldn’t even consider allowing her to stay. I personally think its because he doesn’t want to make the repairs. He wants someone in there that will just ignore the stuff and pay the rent. Anyway he had a lawyer with him that said they will give her five days to move!! While this was going on the property manager kept telling her that if she had all the money at once that they would stop the eviction so she didn’t look for another place. I guess my question is can they evict her in five days like that????? Don’t they have to give her a chance to find somewhere to move. She has children. She has the money to move but its not that easy to find a place especially when he just evicted her. He didn’t even give her a chance to show him that she can pay the rent. He was a real jerk about the whole situation! Thanks for any info you can give me!!

Joe Escalante: The court will look at whether it was reasonable for the tenant to believe the property manager had the authority to make the arrangements he did. At that point, he will just decide how long she can stay until the owner has a right to get possession of his property back. Even if the court said she could stay, for how long? The court can’t force the guy into a long lease so he can just kick her out for any reason in 30 days w/o a lease. So she has to prepare to leave.

Michael: My wife worked for an airline and she is laid off and on work comp from an accident they are treating her for…she has a 401k she wants to cash in but they wont let her unless she gives up her recall rights ( which is anytime in 5 yrs if a job opens up she can apply and take it ) Is this legal ? Thanks

Joe Escalante: I couldn’t say unless I read the paperwork. I haven’t done anything bad enough in my life to deserve that, so you’re going to have to take it to a local attorney.

Anita: Hey joe I have a question me and my sister where planning on renting this house we signed a lease and I gave her 600 for first months we aren’t moving until march 1st . But I have changed my mind about moving a week later I can’t afford it so I told her now she is saying she is suing me and I didn’t move in yet or have keys can she do that .

Joe Escalante: it depends on the written terms of the lease you signed. However, she has a duty to mitigate the damages. Meaning that she can’t just sit on her butt and collect lease payments from you. At some point, she has to try to rent it to someone else. You may be on the hook for the amount she cannot recover until she finds a new tenant. She will try to say that you owe her all the rent for the entire term of the lease, but that’s not true. You may owe her some, but again, she has this duty to mitigate. Make her prove that she’s doing this. But you might also need a lawyer to fight this for you if it gets serious.

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February 14th, 2013 at 6:16 am