LegalZoom Blog

Legal news and small business tips.

Constitutional Law and the Osama Bin Laden Killing, Plus More Legal Answers – Free Joe Friday 5/6/11

no comments yet


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

Naty: I wanted to amend the executor on my living trust, from the initial one person to two people. Is it allright to have two, or more than one executor? Do I need the help of the lawyer that prepared my living trust, or can I do the amendment by myself? If it is allright to do it by myself; is there a standard legal form that I could purchase somewhere, such as online at LegalZoom or Nolo Press or others, to complete the amendment? Thank you in advance for your generosity.

Joe Escalante: are you talking about changing the executor of the will within the trust or changing the trustee who will handle the trust for the beneficiaries?

Naty: Hi Joe,
Thanks for taking my question. My husband and I have two daughters. One of them is currently the named executor of the family trust, and we wanted to
add the name of our other daughter to make them both executors. I am not
too sure if the current executor is the executor of the will within the
trust, or the trustee who will handle the trust for the beneficiary. Is the distinction supposed to be stated in the trust document? Where in the trust document can I find that description? Our trust is called family living
trust. Our two daughters are both the beneficiaries.

Joe Escalante: You can have more than one exectutor of a will but you should include language in the will about what to do if thee is a dispute. To change a will you need to amend it with a “codicil.” Since you’re not exactly sure if you are talking about executors or trustees, I suggest you speak with the attorney that prepared the documents. Get a price up front to make the changes you want.

Naty: Thanks again Joe. Can I go to LegalZoom to use their services to complete
any amendment such as this?
I would love to go to LegalZoom, if possible. You are great Joe. Thanks and
have a wonderful weekend.

Aaron: are there any resources that help someone write a motion to dismiss?

Joe Escalante: The courts I deal with in California always have some self help info on their web sites. In Compton they have an excellent self-help office right in the courthouse building. You can also find a lot of motions to dismiss on the internet in public filings or just ones uploaded by journalists to go by. Many courts have different rules so it would be smart to at least talk to an attorney that practices in your jurisdiction to get some tips.

Kim: I live in Dallas Tx and am currently in the process of setting up a non- profit in memory of my grandson who I lost to a drowning accident in August 2009. My question is if I am trying to trademark a logo, what class of goods and services would I choose in the list of options? My services would include- Drowning Prevention and Awareness and I would host fundraising events to be able to sponsor swim lessons to children who’s families can’t afford them. Thank you for you time Joe.

Joe Escalante: To me that sounds like it would fall under the service mark category 41 for educational and guidance services. When you go through the process, the trademark examiner will tell you where you’ve made mistakes. There are almost always mistakes made and it’s a back and forth process. If you want to speed it up, you could try Legalzoom’s trademark services. Follow the link and read up on it. Also read the FAQs at the patent and trademark office’s web site. Good luck. That sounds like a really worthwhile operation.

LegalZoom: Here you go, Kim: http://www.legalzoom.com/trademarks/trademarks-overview.html

Kim: Thanks to you both, I will definitely review the link and process. I’m super excited about getting this going, and it really brings me comfort by helping save other precious lives. Have a wonderful day!

Kim: Sorry just one more quick Q… What do you think the total cost could end up being? I need to start saving lol

LegalZoom: Our trademark packages start at $169 + gov’t fees. You can get all the details here: http://www.legalzoom.com/trademarks/trademarks-pricing.html

Lisa: Ok my daughter who is 7 hasn’t seen her father in over 6 yrs. He owes a substantial amount of child support through the state. I’m pretty sure he has a warrent out for his arrest and can’t be found. My question is casn I change my daughters last name legally without him?

Joe Escalante: There is a process. The court is involved. When they see that only one parent is signing the forms they will have to decide whether they think this is in the best interest of the child. If her father lives next door and is being fooled, it wont fly.

However, in your case, the court will probably agree with you if it is your name that she’s assuming and not something like Aquawoman. You might have to run an ad in the paper announcing the name change if required. If the father objects, the court will still decide, not hiim. He will have a lot of explaining to do, so the facts seem to be on your side. Do it through Legalzoom’s service. Their documents and custormer service will ensure that it gets done right. Follow the link below.

LegalZoom: Here’s the link, Lisa: http://www.legalzoom.com/legal-name-change/name-change-overview.html

Rob: I’m planning a show in a large venue with a variety of acts, what kind of paper work should prepare, are there standard form templates available or do I have to create individual commitment agreements?

Joe Escalante: You came to the right place Rob. Go to this page: http://www.legalzoom.com/legalforms/home.html There you will find some solid and dirt cheap legalzoom templates for entertainment and event planning. If you need further help, go to http://www.barelylegalradio.com/ and click “email joe” and we’ll get your other entertainment questions answered on my radio show that specializes in show biz law. :)

Matthew: New Mexico doesn’t have a formal provision for DBAs; can I still operate a business under a trade name without a DBA, or would I need to form an LLC?

Joe Escalante: You can conduct business under a variety of entities. You could be a partnership or a sole propietor. I say, at the beginning, make it simple. Find out what your bank requires to open up a business checking account and start with the simplest business entity. If you want protection for your personal assets, you can get insurance instead of going ahead with the whole LLC or corp thing. Talk to your tax lady for tax info, of course.

Kathleen: what’s the limit now on how much I can “gift” to my children annually without it being an income-taxable event to them?

Joe Escalante: This is a tax question Kathleen. You don’t want me to answer it, trust me. Talk to a tax professional because this is important. I wish I had a mom like you.

Nancy: If possible, how can an ex spouse be excluded from collecting any and/or all of a former spouses social security other than if they remarryi? Is there any way to block them from collecting after ones death?

Joe Escalante: To the best of my knowledge, the ex spouse’s benefits cannot be altered by anyone. The ex spouse is either eligible or not.

Wanda: Joe: What role does an attorney play when opening a non-profit? Thank you.

Joe Escalante: An attorney would make sure that the entity’s application for non profit status did not create any legal liabilities for the entity. Also, even a properly formed non-profit organization can subject its memebers to many liabilities of which most people are unaware. It can be formed without an attorney, of course. But a serious business of any kind should have some kind of consultation with an attorney at some point. A tax professional is also vital.

Marcus: Good afternoon, I have a internet talk show that I call The Dr.Feel Show featuring Marcus Miller. Can Dr.Phillip Mcgraw sue me for parodying his show format?

Joe Escalante: I know one of Dr.Phil’s attorneys. She, and everyone else I know who deals with him have given me the impressioni that he will sue anyone for anything, at any time. Parodies are protected by the First Amendment, think Saturday Night Live. However, people sue and try to destroy people like you all the time. But I would not let that get in the way of my creativity if I were you. Go for it.

Things to watch out for are defamation. If something is true, that’s a defense. If it’s clearly a joke, that’s a defense. If it is an assertion of fact, that is not true, and is malicious and causes the person damages, that could be defamation and actionable. When my band was sued for a parody they made this cartoon to ridicule the plaintiffs. It was very effective. Check it out: http://www.youtube.com/watch?v=klSS7EoGzJk

Sam: Joe;Good afternoon,1:07pm est.My mother passed away about a year ago and I was left a sum of money but I cannot locate the executor of the estate which is my Sister.What do I do??

Joe Escalante: Find out where the estate was probated and talk to the probate court and see if it has been probated. You may have to petition the court to rectify any shenanigans that went on without your knowledge, or petition the court to appoint a new executor.

Ben: What do you do when decrees in a divorce are being broken? How can you have the judge notified without spending an arm and a leg?

Joe Escalante: theoretically you are supposed to ask the court to find the other party in contempt for not following the divorce decree approved by the court. You can do this yourself with a little bit of homework and maybe a book like Divorce for Dummies, or the Nolo Press Guide to divorce. Check this site out for some tips. http://www.document-do-it-yourself-service.com/divorce_laws/mississippi_divorce_laws.html

Lynn: Hi Joe. Quick question. Can the IRS take money away from you that you inherited if you owe them back taxes?

Joe Escalante: Once you inherit the money, it’s an asset that the IRS can sieze. However, it could have been protected by being placed in a trust before it was passed to you. The trust could dole it out in any way it is constructed so the IRS would only have access to little bits at a time theoretically.

Micky: Good afternoon! Is it wise to start a small business without the assistance of an attorney?

Joe Escalante: It depends Mickey. Is it wise to do anything without the assistance of an attorney? Maybe, maybe not. If you have unlimited funds, a team of attorneys is always beneficial in any business venture. However, since some businesses are started on a shoe string, it is at least wise to ration your legal expenses.

That is why many people choose to use self help services for stuff like D.B.A.s, trademarks, and even incorporating. For most it turns out great; for some, they make mistakes that an attorney would have prevented. I’m big on tax help though. You gotta have a good tax professional.

Misty: Hi Joe, I had no idea you were so cute. Do you know of where a person could find an attorney who would create a trust for someone who cannot afford to pay for it?

Joe Escalante: That’s a lot of work for free, but if you tell them they’re cute, they might give you a discount. I would do it through legalzoom if I were you. It’s almost free, you just have to do a little work, and read up on it. However, since you don’t have enough money to pay attorneys, I’m thinking a trust is overkill and you should just make out a will leaving everything to your cats, or whoever. :)

Deborah: should a person give family members copies of their will? if yes can they make the copies themself?

Joe Escalante: Yes. good idea. they may make copies. The original notarized one will be the official one that gets the party going.

Michael: Hi Joe, If I want to do a auto detail business, should I incorporate or can i do like lawn guys do, a DBA ?

Joe Escalante: Lawn guys are awesome. Their business practices should be revered. Go to the bank you want to work with. Ask them if you can open a business account with just a DBA. If they say you need a bunch of other documents, go to another bank. The simplest way is to get a DBA, checking account and some insurance. When they ask what kind of a business entity you are, tell them you are a sole proprietor. Unless you have partners. then you are a partnership.

They may ask for a partnership agreement at the bank, if so, look on the internet and draw up something simple. this is simple, but not ghetto. If you grow, you may want to form an LLC or corp later. Talk to a tax pro now though. That’s vital.

Casey: How many laws have Pres. Obama break since he became president? Was it legal for president obama to go in after osama? Based on constitutional law?

Joe Escalante: I think it’s “how many laws “HAS” Pres. Obama “BROKEN” since he became president. To answer your other question about the Osama killing, hmmm. Based on constitutional law, he’s the commander in chief so he has authority to direct the military. However, President Ford did sign into law a bill that prohibited the assassination of foreign leaders.

That is why you’re hearing a lot of talk about Osama resisting, or reaching for a weapon, etc. If he was truly unarmed and not a threat, and was targeted for assassination only, it’s arguable that this law was broken. But if you’re gong to break one law, why not this one? Am I right folks?

Marie: Hi, I have a question. How do you go about legally improving a product that is already out there. I found a product for humans that I wish to change somewhat and use for animals. How does one go about this?

Joe Escalante: If you are talkng about patenting your improvement, it has to be novel (not done before) and non-obvious. Improvements of known technology are patentable.

You can ask a manufacturer to implement your improvement and pay you a royalty for your contribution. You can manufacture a similar original product and include your improvement. However, in doing so, you may be infringing on their patents. Or you can just make a product that people can use with the existing product, like an iPod dock. You just have to be careful how you mention the original product’s name. You can’t imply an endorsement, etc.

LegalZoom: That’s it for Free Joe Friday! Great questions today–thanks to everyone who participated. Have a great weekend and a happy Mother’s Day! And don’t forget to check out Joe’s radio shows and the Barely Legal Radio w/ Joe Escalante Facebook page for more free legal advice.

Get more info and all the details and fine print about Free Joe Fridays. And join us on Facebook next Friday at 10am PT for more Free Joe!

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

Sign up for the LegalZoom newsletter!