LegalZoom Blog

Legal news and small business tips.

What Are My Legal Rights as a Beneficiary? And More Free Legal Q&A – Free Joe 2/1/13

no comments yet

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.

Tracy: My son is a beneficiary in his grandfathers will (in Minnesota). His dad (my ex) hasn’t be forthcoming with exactly how much money he has inherited. My son, now 17, has requested on a number of occasions to see the will, but his father has refused to show it to him. I am wondering what are his legal rights as a beneficiary to a will? Doesn’t he have a right to see the will if he is named in it (especially if he has specifically requested to see it)? He only wants to know the amount because he will be going off to college next year and would like to know the amount so he can plan how he’ll use it for expenses. If his dad won’t show the will to him, is there any way we can get a copy of it through the probate courts?

Joe Escalante: If a will is probated, it becomes a public document. Go to the court where grandpa died and ask to look at the probate file. If the will is not probated, because daddy is up to shenanigans, then you might have to get a lawyer and ask the court to force the process.

Hans: can a spouse be held resposible for your cc debt..even if they where not listed as a user..never used it..wasn’t listed as a secondary user?

Joe Escalante: That depends on whether you are in a community property or common law state with respect to marital property. In a community property state, a creditor is more likely to be able to get at your spouses property to pay debts. However, all states allow creditors to go after jointly held assets and joint bank accounts. Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In Alaska, married couples can agree to treat their property as community property.

Jamie: Working on starting a package forwarding business. If we receive a package that contains something illegal, and we are forwarding the package. Are we help liable for receiving the illegal package, and also for shipping the illegal package?

Joe Escalante: There are common carrier statutes that dictate the standard of care that you are to undertake. For example, a box that says “happy Velentines day sweet stuff” would not trigger the amount of care and reasonable suspicion of contraband that a package labeled “excellent crack cocaine inside, handle with care.”

Brian: What would prevent me from being aproved for a non profit/tax exempt status?

Joe Escalante: Probably a better question for Gary the tax expert here on Thursdays, but one thing they do is examine your finances, or financial projections and see what you spend most of your money on. If it’s exotic dancers. That’s not good for the children so maybe you don’t qualify. That kind of stuff. For the real info, come back on Thursday.

LegalZoom: There’s no Ask the Tax Pro on Thursday, 2/7, but Gary and his team will be back the week after that. Join us then:

Jon: How do I change the venue on a child support case when the mother lives in same county as me for his whole life? There is no form to request change in my state but my county has accepted it… I would Luke to see my son.



Joe Escalante: Even if you cannot find a form, you can always petition the court with a typed petition as long as it meets the standards by the local rules for formatting. Talk to the clerk and make sure they tell you the local rules.

Joni: My parents passed with no will. A will was entered into court by a family member, and was proven false. My question is, I need help on paying my fathers funeral. Can I ask the court to order family member to pay for half of the funeral?

Joe Escalante: Probably not, but if there are assets you can ask the court to be the administrator of the estate so that you can sell things to pay the funeral costs.

Sherese: ~~What is the cheapest and easiest way to file for divorce in the state of Ohio? Thank you!~~

Joe Escalante: The cheapest way is to read this book with the dog on it, and do it yourself, but that is not easy and can be a nightmare. If the divorce is uncontested, you should use Legalzoom. It’s well worth it.

LegalZoom: Here’s a link to the LZ service, Sherese:

Megan: After working for a company in pa for about 3 yrs, i quit, to work closer to home. I got a job in nj, much closer to home, worked there for about 3 weeks and was then laid off because they didnt need me. They werent as busy as they thought they would be. I dont believe i am entitled to unemployment from the new company because i wasnt there long enough but, am i still entitled to unemployment from the company i was with for 3 yrs until i find something else close to home?

Joe Escalante: It doesn’t matter that you worked the 2nd job. You just apply for benefits and if you qualify, you get them.

Antonia: Good morning, on sept of 2012 I stored some of furniture at my friends apt. On December 22nd of 2012 we got into a dispute and so a couple of weeks later I told her to let me know when she moves out so I can go pick up my belongings. However, she responded by stating via text, “give my stuff to x when she goes to your house tonight and I will drop your stuff off when I move out.” And so I have her stuff to x (all that she specified in the text) and I also told her if I found anything else I would give it it her when she brought my belongings. However, weeks went by and I heard nothing from her so I texted her that I would be stopping by with the police to get my things and that I wanted to let her know so she wasn’t alarmed when we got there. She responded, “no problem. Your stuff were never my responsibility and they got lost amongst my things when I moved out. Have a good life xoxox.” With all this information I was wondering if it would be worthwhile for me to take her to a small claims court and due? If so, how should I go about it?

I appreciate you taking the time to read this. Thank you

Joe Escalante: The judge would decide whether she had a legal duty to care for your things. That will be based on testimony. He will balance his findings with the fact that she admitted in writing recently that she had the stuff, and seemed to hold this hope over your head to get her stuff. Then she said, “ha, I don’t have your stuff and never did.”
The judge isn’t going to like that. However, he might rule that she never had a legal duty to care for it in the first place. Is it worth it? Only if she has money to recover. The court just awards a judgment and you have to take steps to collect. And he might rule against you. That’s a tough one.

Tamika: Here’s my senario. Child support was payed directly to the child’s mother per the original order. Things are amicable and the father even gives her extra money when she asks. 10 years pass and the father gets married and the mom is mad and lies, saying that he never paid her after the first year and they return to court for the first time in almost a decade. The mother kept filing for continuances due to her moving out of state. After 1-2 years and 2 judges later, the court finally determines through proof furnished by the father initially that not only is he current on child support, that now he has payed several thousand dollars over due to the mother’s lies and arrearage payments. Can the father sue her in civil court to recoup the thousands overpayed in arrearage and/or the additional thousands lost when she received his income tax refund due to her claim?

Joe Escalante: He can, but it will take thousands to accomplish it and he may not win, and this money could possibly be better spent on the kid.

Linda: We are in Lytle Creek, California. Our neighbor of 12 years, is now claiming that our propertyline, which still has the old fence & California Redwoods that were there when my husband bought 23 years ago, is on his side of the property. He just did a survey himself, removing one of the original iron stakes which was thrown into our yard. Can he make us move the old wire fence and claim the trees as his, thus giving him about 6 feet of what my husband thought was his property when he purchased it 23 years ago? He didn’t have a problem until we cut down a awkwardly planted tree, next to the stream, in the middle of our yard. Thank you.

Joe Escalante: This sounds like a complicated property dispute that would cost tens of thousands to litigate. If he is correct about the property line, he will prevail in court. However, if he had reason to believe that the property line was incorrect years ago, and he “sat on his rights, to your detriment,” he might not win. But that will be determined by the court looking at all the facts going back years. Not fun.

Curtis: If you’re married and you want to start a business but don’t want your spouse to be able to have access or any claim to it what can be done legally?

Joe Escalante: It depends on what state you are in, but I suppose you could contract with her to stay out of it. That would be sort of a “post-nuptial” agreement, which people do. However, state laws vary in their treatment of such agreements. If she wont agree to this, the state is not going to buy into it either.

Debra: My husbands daughter is applying for financial aid for college. She lives in another state with her mother. He pays child support and alimony. Do I legally have to provide my financials? I feel like it is an invasion of my privacy.

Joe Escalante: You could probably get out of it, but she’s going to end up at Chico State.

Christine: Generally how successful are anticipatory nuisance cases? Is there a particular type of attorney needed?

Joe Escalante: I don’t know how they are doing but they type of attorney you would need would depend on whether you are a defendant or plaintiff because attorneys specialize in each. It seems like you’d need an environmental law attorney. You either need a “do-gooder” or a mustache twirler, depending on where you sit.

Julio: My neighbor rents out a converted garage and now he wants to evict them but will not leave. Tenant called the City to report the coverted garage which they came out and cited my neighbor. Tenant want $5000.00 relocation fees to move out. He is going to redo the garage up to code but needs the tenant to move out which they won’t do unless he gives them money. What can he do?

Joe Escalante: Since the landlord was in violation of housing codes, and the tenant has possession, it would seem that in some respects the tenant has the landlord over a barrel. However, it’s not up to the tenant to unilaterally created fantastical relocation fees. That would be by mutual agreement, or from a ruling by the court. You could file an unlawful detainer action against the tenant if the lease is month to month. He should really get an eviction attorney on this. A good one should be able to get rid of the guy if he can show a good faith intention to upgrade the place and portray the tenant as an extortionist.

Lawrence: How do you fully legalize your business?

Joe Escalante: You start by getting a good tax professional to help you determine what kind of entity you will be. Sole proprietor? Partnership? Corp? LLC?
Then you get your insurance guy on board. Then you get local, state, and federal permits and licenses, if required in your industry. Then you’re on your way.

Chris: If a policeman orders you to open your door, or remain in your car or shut off your cell-phone cam and you have not been arrested do you have to comply and if so is there a manner of complying which does not compromise your rights ?

Joe Escalante: A polite way to disobey is to say “I’d rather not.” This wont always end the discussion, but it will prevent much of what happens after that from being admitted into evidence against you.
In other words, “can I search your vehicle?” “I’d rather you didn’t.”
“What are you hiding?” ” Nothing, I’d just rather you didn’t.”
He can still search your vehicle, but the stuff he finds wont be admissible in court because it was an illegal search and seizure. He can throw your crack pipe off the bridge, but he can’t tell a jury you had one.
Hope that helps.

Thalese: My mother passed away September 2, 2012. Do I need to file taxes for her?

Joe Escalante: The executor needs to make sure taxes are filed for 2012.

Thalese: My mother passed away and I received a letter pertaining to her house that was foreclosed on that she may be entitled to money back. Does her estate receive this rebate and how do I go about it?

Joe Escalante: Yes, her estate would receive the rebate. The executor would be entitled to collect it. That executor has a duty to contact the entity that may have a refund for her.

Rocky: what entity should I use for my home and cars??

Joe Escalante: The only legal issues I could think of here are personal liability. There’s not magic entity that will protect you from legal liability. If you had a real business, I would tell you to make sure it’s company vehicles are held by the company as a corp or llc, or make sure you have plenty of insurance if you are just a partnership or sole proprietor.
For your home, if it’s in jeopardy of going through probate when you die, I would put it in a trust so it can pass to your heirs w/o probate. However, if it’s jointly held with your wife, she will get it automatically when you die, w/o probate.
Having said all this, the most important considerations are probably in the tax arena when making this decision

Tinisha: MR. Joe im a teacher and i have students in my face at 11 ive been trying to catch u for two months please answering my question when u can…i have a court order child support case but he sends me less the half of it each month cse are no help, can i sue him for my back support?

Joe Escalante: Get the process started by filing a motion to enforce your child support order. If you are the one damaged by the shortfall, the damages should go to you. Each state is going to handle this differently, but that’s your argument. The order was to pay the support to you. You didn’t get it, you had to make up the shortfall, and you need to be compensated for that. Good luck.

LegalZoom: Joe will be back next week with more free legal advice! Join us then. In the meantime, check out the Barely Legal Radio w/ Joe Escalante Facebook page. Have a great weekend!

ShareShare on FacebookTweet about this on TwitterShare on Google+Share on LinkedInEmail this to someone

Sign up for the LegalZoom newsletter!

Written by

February 5th, 2013 at 6:18 am