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Can I Write My Own Will? And More Free Legal Advice – Free Joe Friday 9/2/11

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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.

Denise: I applied for unemployment, and first I was approved, then I was denied and told that I had to file an appeal. In the mail yesterday came something else from the unemployment office that says revised notice with me being approved for unemployment. What should I do, since I already sent the paperwork to request an appeal? I am located in NY, so you have a better idea! Thanks!

Joe Escalante: Sounds like a non-problem Denise. If they don’t figure it out just don’t go through with the appeal. Or pick up the phone. Are you related to Jill Whelan, TV’s “Vickie” from the Love Boat? I went out with her when I was younger.

Ritz: Q: What are the parental kidnapping laws between a couple that is still married, no legal separation (separated for over 7 years), and do not have a custody order signed by a judge, in the state of Florida?

Joe Escalante: Problems may arise if you interfere with the former visitation pattern. The court likes notice. Not surprises.

It’s hard to classify it as kidnapping if there is no custody order.

Felicia: Hi Joe, I’m in the state of Texas. How do I have my Father’s widow removed from the Deed of property? When an Afidavit of Heirship was signed a year after he died and I am the only Heir to the property,however she and her family lived in the house until it was rundown and is now trying to rush to sell it. Thank you ,Felicia Wallace-Davis

Joe Escalante: Depending on how long you let this go without doing anything about it, you may have problems. Take your affidavit of heirship to the county recorder and ask them the process to get the deed changed.

Eddie: is there any way a father’s rights can be stripped from him if he doesn’t try to see his daughter?

Joe Escalante: Yes. The mother can petition to get sole custody. You may only end up with supervised visits if you don’t defend yourself. Terminating parental rights is very hard and extreme. That can be prevented by just a minimal effort.

Melissa: Can I file for divorce on my own at the courthouse without having an attorney? If so, if my husband would then agree to drawing up our own agreement and parenting agreement, can we then file that? If we would need a mediator, do we each need to also have an attorney or are there mediator services we could directly go to and how do we find them? Thanks!

Joe Escalante: You can do this all without an attorney. You could use Legalzoom’s services to take the guess work out of it. Google some mediators in your area and ask them how they feel about “pro se” litigants. That’s you.

LegalZoom: Here’s a link to our divorce package, Melissa: http://www.legalzoom.com/legal-divorce/divorce-overview.html

Betty: My father died. What does my mother need to do to remove his name from the title of their home? The title to their home is listed in both their names. My mother resides in Los Angeles County. Thank you.

Joe Escalante: Take the death certificate, Preliminary Change of Ownership form that you download from the court’s website, and an “Affidavit of Death Of Joint Tenant” your county recorder’s office. Pay the required fees to the recorder clerk. The recorder clerk verifies the documents and eventually mails an updated deed. Try this affidavit so you don’t have to pay for one: http://www.lavote.net/general/PDFS/AFFIDAVIT_DEATH_JOINT_TENANT.pdf

Betty: Thanks for the clarification. I thought it was the “affidavit of surviving spouse” that she needed to file.

Joe Escalante: you are right: http://securitytd.com/wp-content/uploads/2011/05/aff_of_surviving_spouse_community_prop.pdf

Betty: Just confirming that it’s only the Aff. of Surviving Spouse that we file and not the “joint tenant” form also. I appreciate your help. Thanks.

Joe Escalante: Just one, not both

Ashley: If a parent is supposed to pay half of what’s not covered by insurance but has no real income other than child support for another kid not involved in these bills but this parent lives off a boyfriend, how does the custodial parent who has the judgement get the billing drs offices and such to bill the other parent? What about out of pocket costs like medications or glasses? How does the parent whose name is on the bills give the other parent a statement or bill for their half and what if they don’t pay? Is their supporting boyfriend on the hook?

Joe Escalante: My brain hurts from this. I don’t really understand all the pieces of this romantic puzzle but I will say this. If you believe someone should pay bills that are addressed to you, write at least two letters immediately, every time you get a bill like this. One letter is to the person that you believe owes the amount, tell them they are obligated to pay it. Write another letter to the billing party, saying they’re barking up the wrong tree.

Try to clear it all up in writing but beware, they may damage your credit if no one pays.

Are you related to Jessica Sampson?

Ashley: The judge, at the request of the mother of these two kids, said mother and father pay 1/2 of all medical not covered by insurance. Father has custody. mother has paid less than 1/2 one kids’ glasses in 7+ yrs. papers are being modified for other stuff but we (father and I–his wife) want to reitterate (sp) that she needs to start paying her half of these bills. How does the father go about asking the judge what the propper channels are or do we just write it again in the new papers and ask the mother how she wants to be noified of the bills? I’d hate to send the order to all drs to get them to bill her. Do we give her a copy of receipts when we pay out of pocket for meds or glasses and ask her to pay back 1/2?

Joe Escalante: If you believe she owes it, make sure all requests are in writing.

Alexander: Are police officers in Ohio legally able to search your glove compartment or trunk without permission/a warrant? What are the rules concerning the cabin of a vehicle?

Joe Escalante: They can search all they want. Remember that. However, what they find may not be admissable in court if they did not have “probable cause” to search your vehicle. If I was a cop, and I thought you had an illegal gun, or just had a hunch, and you wouldn’t give me permission to search your vehicle, I would search it anyway. The evidence I find wouldn’t be admissable perhaps, but maybe I saved a life.

Karen: My friend was fired on the day she returned from 6 weeks of maternity leave. The company has 20-25 employees spread over 2 locations (L.A. and San Francisco). She was employed with this company for 15 years, had no disciplinary action, and had even received a 10% raise this year. She worked right up to her delivery date and while she was on maternity leave, they routinely (daily) emailed or called her for help, which she gladly gave. Her job duties were being covered by the owner’s neice, who worked at the company’s other location (SF). On her first day back, she was told that they decided to move her position to San Fransisco permanently and if she wanted to move she could still have it. Since her position was not eliminated and she did it from her location just fine for 15 years, weren’t they obligated to give her job back? Does she have any recourse?

Joe Escalante: It all sounded illegal until you mentioned that they just moved the job. It would be hard to prevent a company from moving a job from one of their locations to another. She wasn’t fired according to you. If they offered her the job, what are her damages? She would have to prove that it was related to her pregnancy. From your fact pattern, it sounds like they were within their rights. But you might want to talk to an employment discrimination lawyer to make sure, or you could just file a complaint with the labor commission if you can establish some bad faith.

Karen: Thank you! I was thinking that since the job was moved to a place that is 8 hours away by car, is the offer really in good faith? Her home, family, children’s school, husband’s job are all here. What about the fact that they made her work(through frequesnt requests for help) while she was on maternity leave( medical disability)? She kept emails that show their increasing hostility toward her while she was on leave.

Joe Escalante: my advice still stands. thanks.

Zachary: Are television decoders legal?

Joe Escalante: If you are causing copyrighted programming to be delivered to your home or office without paying the subscription fees, it is a crime.

Ken: I had a class C felony when I was 19 years old (I’m 46 now) it was for “attempting to elude a pursuing police vehicle.” I need to get it expunged off my record. I spoke to an attorney, & he gave me a form to send to the state patrol asking them to expunge it off my record, & their response was it can’t be expunged. Then I asked the attorney, what now? Can you help me? How much do I need to save up before I contact you so we can proceed? He never responded, so I take that to mean he’s unwilling to help further. Any advice?

the attorney just sent me a return e-mail, & said they could help me through the process, but they will charge me an hourly fee of $175-OUCH. I collect disability so funds are extremely tight. Any advice? Can you guide me through this process?

Joe Escalante: That’s cheap. Expunging a felony is not always possible. They want to charge by the hour because they will get paid if they fail, which they may. This will be expensive, but $175 and hour is cheap. I charge $300. :) I would talk to a few other attorneys and see if they think it has a chance of succeeding. But remember, no matter what it costs, it will be worth it. Eluding a police vehicle is about as much fun as one could have, but there is a price.

Eric: Hi doctor Joe, what law school will let me in with a 120′s lsat score? thanks!

Joe Escalante: You gotta take it again, bro. Or just go to the Abraham Lincoln Online Law School. My lawyer went there, she’s amazing. http://www.alu.edu/

Chloe: What happens when only Heir property is in the family? There was NO will however, there are four children involved?

Joe Escalante: You can make a codicil to a will, sign it, notarize it to be safe, and it will over ride all applicable parts of the previous will.

Adam: Is a 145 lsat score sufficient for entry to law school or should I consider taking again?

Joe Escalante: Not a great one, you should think about trying again. Make sure you take a quality prep course, or the lsat is a waste of time and money. Some schools look at only the most recent, some take an average of your test scores. So be aware of that too. Good luck.

Laurie: Hello Joe Escalante… been wondering this for a LONG while now.. DO I NEED A WILL? I’m in my 40′s, own a home… single, never been married, no kids. I have a Mom, brother, sister, and a niece and 3 nephews. If I have no dependents, why would I need a will? I sort of wrote my own and put that piece of paper in a kitchen draw. I do have beneficiaries for all of my investments and 401K etc. So, do I REALLY need a will? A real will?

Joe Escalante: Good question. The answer is no. When you die, who cares what happens to your stuff? And, that hand written will you made is called a holographic will and is likely perfectly valid as long as it is written by you, and signed by you as well. But let’s be honest, that’s kind of ghetto when you could get a shiny package from Legalzoom for $69. Your will is probably valid, but LZ’s will cause less whispering at your funeral. That’s why I got one.
If you really liked your relatives, you could put your home and other stuff in a trust, and it would theoretically pass to them without going through probate. Probate is long and expensive.

Holographic wills are treated differently in different states. Most states require that they be witnessed, so check with your state.

Laurie: My holographic will is VERY funny, and I think I’ll probably be whispered about anyway at my funeral because of it, however! Is $69 the bottom line cost? Of course, it’s well worth it, if that’s the case…

LegalZoom: There are shipping costs added; standard US shipping is less than $5. So bottom line cost is $70-$75.

Stacy: My daughters wedding reception caterer quit 10 weeks before her wedding and did not return her $5K deposit and has now filed bankruptcy (5 weeks until the wedding)..his wife however was the executive chef and claimed on her business card and in conversation to be an owner, they leased the building from a country club that showed us the facility and participated in events but is claiming no responsibility We cant sue him now but can we sue her and the country club?

Joe Escalante: Good question. The answer is no. When you die, who cares what happens to your stuff? And, that hand written will you made is called a holographic will and is likely perfectly valid as long as it is written by you, and signed by you as well. But let’s be honest, that’s kind of ghetto when you could get a shiny package from Legalzoom for $69. Your will is probably valid, but LZ’s will cause less whispering at your funeral. That’s why I got one.
If you really liked your relatives, you could put your home and other stuff in a trust, and it would theoretically pass to them without going through probate. Probate is long and expensive.

Kendra: How many days after leaving a job does your former employer have to give you all of the COBRA information you need to make medical insurance decisions? I’m in NJ. This is also assuming 2 weeks notice was given to HR.

Joe Escalante: If the company filed bankruptcy, it would be hard to sue any of it’s owners. If the individual caterer is trying to skip out from this debt with a personal bankruptcy, I think it would be worth it to sue the wife in small claims court and present evidence that she is an owner as well. Good luck.

Suzanne: Hello Joe, if you have an old will that has been filed and you have a new one now since everything in that old will is pretty much sold and or gone, will we need to file the new one or will the one we have override that one this is filed?

Joe Escalante: You can make a codicil to a will, sign it, notarize it to be safe, and it will over ride all applicable parts of the previous will.

Kendra: How many days after leaving a job does your former employer have to give you all of the COBRA information you need to make medical insurance decisions? I’m in NJ. This is also assuming 2 weeks notice was given to HR.

Joe Escalante: I don’t know of any time limitations on this. Just make sure all your requests are in writing so if you get screwed you have a record to sue their ass raggedy with.

Steve: How do I apply for trademark and copyrights on a business that I have created?

Joe Escalante: The business entity may file for and own copyrights and trademarks. Read all the stuff on Legalzoom’s site, check out the faq’s at the copyright and trademark office and you will have it down. Use Legalzoom the first time you do this, for sure. Next time you may be able to do it correctly on your own, but a lawyer is usually over kill for copyright, and sometimes for trademark too, which is harder.

Jeff: neighbor puts a printed off, none post office marked note, wraps it around my posted mail in my mailbox, note advises complaining about yellow grass. no grass stays green when you have 68+ days of 105+ degree temps in Dallas Tx. A few other neighbors received one as well.

Letter signs off “typed” as a police officer & city mayor.

Can anything be done here, as this neighbor/person is too chicken to come forward & speak face to face since no one knows which neighbor it is but we think it’s the neighborhood realtor…

Joe Escalante: Water the lawn just a tad more.

Elizabeth: My question is……I have an attorney who really mismanaged my case do to his alcohol abuse. he missed a court date and I was held with a contempt because of his mess up….is there any legal recourse I can do now….he told me the court date had been reset in fact it had not..he admits it was his mistake but yet I paid for it…..

Joe Escalante: This is what malpractice cases are all about. You need to talk to a malpractice attorney. Check out attonney connect:

LegalZoom: Here you go, Elizabeth: http://attorneyconnect.legalzoom.com/

Joanne: I need to get a copy of my marriage certificate from Germany where I was married by the German authorities in Baumholder and then in the chapel at the Army base in Mainz. How does one go about doing this? Thanks for any info you can provide.

Joe Escalante: Contact the Personnel Headquarters at Mainz. They should have a copy some of the paperwork involved if it wasn’t too long ago.

Laura: Hi Joe! I just started a business: LLC and need to know what kind of business insurance I need. I will be conducting cooking classes and events in people’s homes.

Joe Escalante: General Business Liability insurance is what you need. Have fun talking to that guy.

Julie: A friend has worked for post office for 15 years. she is involved in car accident (other parties fault). she misses 3 weeks of work for therapy and recovering. on her first day beack, sh ehands remaining mail to her supervisor as she can not carry it due to injury. His statement is (paraphrasing closely), I have to carry your g-damn mail now. What good are you. Is there a case for hostile work enviornment? thanks. you are wonderful.

Joe Escalante: Actually, yes. Will he deny it? yes. If there are witnesses, she’s got a case. Too bad she didn’t have a sick burn to come back at him with.

Lynda: Is it too late to ask a free question? I want to know if a hand-written will is just as valid (legal) as one done by a lawyer?

Joe Escalante: Most of the time, yes. it’s called a holographic will. It needs to be signed by the person that wrote the will. That cuts down on shenanigans evidently. Most states require it to be witnessed.

Mary: I was recently contacted by a webhosting company out of Japan. They were wanting to confirm I was the owner of my company’s online domain name (the dot.com web address). If I don’t purchase all the URLs available from other countries (i.e. companynameABC.au, .bz, uk, etc.) is there anything I can do other than purchasing all those domains, to make sure those URLs are not available for purchase and to make sure my company is safe from being misinterpreted as being a part of a different company, with the same name?

Joe Escalante: It would be hard to buy all of them right? So you have to rely on other laws, like trademark infringement, unfair business practices, unjust enrichment.

Michele: If I currently have an LLC for a consulting biz, wld I need to set up a new LLC for a biz that was different? For example, photography.

Joe Escalante: If both businesses have the same owner or owners, the LLC can own both businesses. Check with your tax pro, but one way is to just make a new DBA, owned by the LLC, for the new photography company.

Carlos: If I formed an LLC, (used for holding rentals) in order to protect these assets is there an added benefit putting someone (my mom, i have no wife no kids yet) as a board of directors member? Also, I flip properties if I form another LLC and elect to be taxed like an S-Corp can I retain most of the earnings in the LLC without paying taxes on it? (Only paying taxes on the wages I pay myself). Thank you!

Joe Escalante: I don’t answer tax questions but as a matter of semantics, your LLC will not protect your properties if the properties are owned by the LLC. The LLC may protect your other personal assets that are not owned by the LLC.

Betty: Can you do your own Will and have it witnessed in Alabama?

Joe Escalante: Alabama is weird on this. You are better off going with Legalzoom there, or an attorney. See below:

LegalZoom: Here you go, Betty: http://www.legalzoom.com/legal-wills/wills-overview.html

Kevin: I recently left a company and they have not sent me the notification to continue my health coverage per COBRA. They have 60 employees and have averaged more than the required 20 for the year. I spoke with the person handling HR, and they advised the owner was not going to allow the benefits to be extended, even at my expense because she heard she didn’t have to. She is Chinese. It has been 21 days since I left. What is my next step?

Joe Escalante: Keep all your correspondence int writing, Chinese or not, and talk to the state labor commission about filing a complaint.

Deborah: Hello, Joe! Can you tell me if it’s ok to revamp free online photos, then copyright them through, say….Legalzoom??? :) thank you!

Joe Escalante: If you take photos that are in the public domain, or that you have acquired legitimately through a service, and you doctor them, you have made new, copyrightable works. Go for it. But make sure you read the terms of service if you bought them from a stock photo company or something like that.

Val: Joe, my brother is bi-polar & a narcissist. He has recently sabotaged my job hunting websites, called animal control on me w/false allegations, hacked into my business website, & called the state authorities w/more lies relating to my living situation. I’ve had to block his emails & phone due to constant harassment, but the police tell me I CAN’T get a restraining order until he is a physical threat. He owns firearms & is mentally unstable. What can I do to protect myself?

All of his lies were proven to be just that-lies; I’ve never been in trouble with the law & have proven to be 100% legal w/all his allegations.

Joe Escalante: It’s the court that handles restraining orders not the police in my experience. Go to the court in your jurisdiction’s web site. You can probably download some forms and get started. The judge will decide if you need protection. The police always try to get you to go away unless your are bleeding profusely. They like to go home early.

Heather: Good morning, I need to file divorce, however do not currently reside in the state my soon to be ex lives in. How can I file for divorce and still receive fair treatment in the CA courts? He has already locked me out of our joint bank accounts and I left 2 weeks ago. Help please

Joe Escalante: You probably need to hire a lawyer in California. I don’t see any other way to not get burned while being out of state.

Dar: I am executor of an estate where the beneficiaries are refusing to come get their distributions. (vengeful siblings, etc) – I am now “storing” these items, and need an exit strategy. It is my fiduciary responsibility to protect, insure and safeguard these items (cars, furniture etc) – but they were notified in March, stated they want the items – but refuse certified mail and requests to retrieve their distributions. In CA, what is my next course of action to legally and responsibly end this – what is my legal exit strategy?

Joe Escalante: You sound like you are doing everything responsibly. It would not be fair to the estate to pay to store things, so you might try giving notice to them that you are going to sell the items by a certain date if they don’t pick them up. Then you can place that money in safekeeping for them when they decide they want to claim it, or you could just send them checks. Then file petitions with the probate court to reduce the statute of limitations on when they can come after you if they don’t like any of this. That gets a little complicated but you’ll figure it out.

Walter: My wife and her father perjured themselves when she filed for divorce, just to obtain an injunction to keep me from my minor son. this was proven that they lied, but my father in law is an elected official in milton, fl, so all the judges still did nothing and upheld the dvi so i can not have any contact even third party with my son, what can i do, the dice are loaded in their favor, although it is proven they perjured themselves for the dvi?

Joe Escalante: This sounds like an issue for the trier of fact. That is the judge. Believing the testimony is his discretion. You can file a complaint against the judge but the standard is pretty hard to meet.

Mary Ann: joe my husband and i up and left our condo in Oct.2010 as many others have. In april 2011 our former HOA forclosed and purchased the condo for $100.00. In May of this year my husband passed away. In June of this year we received court papers from the attorney for the bank. I called the attorney and told him when we had left, who purchased the condo and that my husband died in May. The mtg. company for the bank keeps calling and asking for my husband. I don’t pick up the phone as directed by legal aid. I can’t take anymore bad things happening. I only get my late husbands pension and soc.sec.check. I work 2 p/t days a week and don’t bring home much. I need to get these people off my back. Everyday i’m scared something is going to happen. somewhere out there there has to be an answer for me.

Joe Escalante: A bank can go after you for the difference in what they got, and what you owe if they want in most cases. However, they seldom do. You should consult with a real estate attorney in your area. Pay for an hour with one if you have to. I don’t think not answering the phone forever is very good advice. At some point you need to talk to these people but you don’t want to say the wrong thing, or get railroaded, so that’s where the attorney comes in.

Melody: Am I able to sue an auto repair shop to recover my tow charge and diagnostic fee if they kept the vehicle for 6 weeks without repairing it? We had to have another repair shop tow the vehicle to their shop. This shop wouldn’t release it til we paid the fees. I do not feel I should have to pay them when they did not complete their part of the deal.

Joe Escalante: Yes. You can take them to small claims court and recover everything you paid for services that were not rendered. Good luck.

LegalZoom: Free Joe Friday is a wrap! Thanks for all your great questions–Joe will get to as many as he can. Have a safe Labor Day weekend and come join us for Free Joe Tuesday! http://zoo.mn/FreeJoe

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September 6th, 2011 at 6:33 am