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Do Last Wills Have to Be Filed with the Court? And More Free Legal Advice – Free Joe 10/12/12

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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.

Deborah: Do hand written wills, have to be filed in court records ?? signed in front of a Notary??

Joe Escalante: Not necessarily. However, sometimes it will be easier to get the court to approve the will during probate if it is done in a certain way. Google “self proving will” to see what I mean. Each state has their own rules, but notarization of wills is not usually a requirement. However, two disinterested witnesses is often required.

Ephraim: Hello. My name is Ephraim. I live in the state of California but was born in the state of Louisiana. This summer I did a Petition to Change Name through the California court system. Since Ephraim is not my birth name I’d like to amend my Louisiana birth certicate. I don’t want to physically have to go to the state of Louisiana. Help!

Joe Escalante: At the end of the name changing process is the filing of the court order with the Department of Vital Records in your county, or parish in the case of Louisiana where it’s called the Vital Records Registry or something like that. I cannot think of any reason why you cannot do this by mail.

Stan: Hi~ My legal question: I found a wedding ring set on the street outside our local post office. Showed it to local police officer; she took it to the village offices. After thinking it through… I wrote to the village officials and police department asking that, “if no person claims it within a reasonable time, I’d like it back”. Can they deny giving it back if no person claims the ring?

Joe Escalante: These are often referred to as “Finders Keepers” laws and it really comes down to the process that the individual police department wants to follow. You should write them a letter asking specifically what is the process if the rings are unclaimed. Unless they can establish that it was part of a crime, they should have a process to let you keep it.

King: Is it illegal for my car insurance carrier to drop me after being in an accident that wasn’t my fault. It is also the only accident I have ever been in.

Joe Escalante: In general, private insurance companies can drop you for anything that they determine to change your risk factor, unless it’s for something like being Chinese or Catholic. Contact your State’s Insurance Commissioner. It’s his job to look into possible shenanigans.

Jessica: Whats the easiest way to divorce someone if they live in another country?

Joe Escalante: File a petition for divorce in the county where you guys lived. Follow the court’s instructions to have your husband served with notice. If he doesn’t respond, a default judgment of divorce will be entered on your behalf, most likely.

Michael: my ex wife stole our daughters social security number and has a line of credit for credit cards… we have joint legal custody and my question is do I have a civil case?

Joe Escalante: What are your damages? Probably none. The kid could sue her if there are certain and provable damages. Realistically, this is an i.d. theft case for the District Attorney’s office. But more realistically, they will probably do very little about it, unless you live in a small town.

Michael: She is 14 yrs. Old/a minor… As her father her damages are my damages, right? If what you say is true, then all parents can defraud bank/goverment/etc.

Joe Escalante: If what I say is true, the kid can sue them and they cannot defraud the bank/government, etc. If you can establish certain and provable damages, you may prevail in an lawsuit. It will be a matter of civil procedure as to who is the plaintiff, you or your kid.

Fathima: Hello Joe, we just started a single member LLC(incorporated in Delaware) as my husband as the only member now. But now, we got two international investors with less than 10% share. Do we need to file an amendment to include them or just include them in the operating agreement.

Joe Escalante: Only some states like Texas do not require a formal filing of Amended Articles of Organization and simply allow the LLC’s Operating Agreement to legally control the new member addition. Contact your Secretary of State’s office and ask if LLCs are required to file amended documents. In my state, I have had good luck with getting answers on the phone.

Janette: We have a 401k from a previous employer. They are going bankrupt and sent us a noitice of what we would like to do with it. Options are, 1 time payout, monthly money payouts to start Jan 2013, or roll over into our present 401 k. What senario would you reccomend. We are afraid if we take 1 time payout we have to pay absorbant amount of taxes, if we montly payout, with them going bankrupt are we secured at receiving, and again added income, added taxes per month to claim as income…or penalty for a roll over?

Joe Escalante: I would lean toward the lump sum, for the reasons you mentioned, but your situation, as analyzed by your tax pro, will dictate what’s best for you.

Paul: Some of the home owners of my community were effected by a failure of the slope behind our property, resulting in considerable damage to a few homes, blocked drainage and contiueded groundwater seepage of an unknown origin. The HOA has agreed to fix it,and has gone forward with a lawsuit against the developer. They are going to settle soon. My property did not receive direct da
mage as it is right
on the edge of where the land slid. It did cause the natural drainage to be blocked and the culvert is constantly full of water. Even when drained out by pumping, it fills back up in a few days. It smells, harbors insects/mosquitoes. also the water seeps under ground into my yard and continually making it wet and soggy in one area. The attorney for the HOA has asked for a damages assessment, but wont give ma advice on how to determine that since he represents the Association, which I am a member. In essence we the members are in a suit with and against ourselves….how do a i place a value on inconvenience, potential health hazards and the possibility of damage to my property that I cant actually see now…..(I initially posted this question on Sept 8th, but havent been able to get back here while Joe has been in…so since then a settlement has been reached with the HOA and the developer and it is not including my property at the moment. when the attorney for the HOA last contacted me he said I would still have a chance to submit my claim for damages, so Im now wondering if I have any recourse…) Thanks for taking a look at this!

Joe Escalante: To me your most concrete damages are the value of a condo without this problem, minus the value of a condo with this problem. That wouldn’t be that hard to figure out as soon as someone sells a unit. If no one sells one in time to calculate this, you are going to have to pay for the opinion of an expert in real estate valuation. It sounds like you still have time.

Esther: I have a will and estates question for Joe. In the state of PA the property of the deceased escheats to the closest known relative; so if there were 7 siblings and only 1 surviving. Does the estate have to go through probate court to transfer property? Or will the death certificate of property owner and birth record of only surviving sibling suffice?

Joe Escalante: It has to go through probate for many reasons, but the biggest one is to put potential creditors on notice that may want to get a piece of this estate.

Paxton: If the mother of your child takes your kid out of state when you have parenting plan is it illegal?

Joe Escalante: It depends what the order of support and custody says. If you think it’s hurting the child you can petition the court to have it stopped or place the parent in contempt if it continues.

Dawnyale: If your going through a Divorce and the wife is seeking ore child support but the husband is granted Shared Parenting can he get a devation from the order?

Joe Escalante: He can attempt to change the terms of the order of support by petitioning the court. People do this all the time when circumstances are different than when the original order was agreed to.

Sandra: My son and I together, owned 50% of the family LlC. My ex left it sitting and moved all to a different state and now his brother,who used to own only 1% now owns it all. What can I do ? We have been divorced since Feb 12 and he did this the year before without our knowledge. Was Missouri now the business is in Kansas.

Joe Escalante: To get it back, you need to file a lawsuit based on, among other things, violating the terms of the Articles of Organization and the operating agreement.

Annette: If I live in another state how do I find out about my father’s will?

Joe Escalante: During probate, it will become a public document. You call the probate clerk and ask her how you get a look at it. You might have to hire a local attorney to examine it at the court, depending on their rules.

Pamela: I hate to even waste my breath, afraid of the answer. I was divorced 10 yrs ago, is there a time limit on the child support and separate maintenance that he has never paid? What can I do? 1 child who is grown now and yes he is working. Somehow or another he always seems to get out of it, he is from that county where the divorce was finalized. tysvm for your help!!

Joe Escalante: If you have a support order, and he violated it, it is probably not too late. In my state, California, there is not statute of limitations to recover unpaid child support. Petition the court to get a judgment against him for unpaid support. Then go after him to collect it. You need that judgment first.

Joanne: | What is the process to reinstate a US Service mark ? (Received it, but did not extend it.) Is there a grace period ?

Joe Escalante: Yes, there is a grace period. Here’s some info:

Carrie: What do you do when you do not have an attorney but the attorney you had in your divorce either made a huge clerical error in court documents or out right lied? Thank you.

Joe Escalante: You get a consultation with an attorney specializing in legal malpractice claims.

Alayna: Are there any circumstances under which polygraph results can be admitted as evidence in a trial? Thanks for your help~

Joe Escalante: If the other side doesn’t object.

Misty: I have a question why should I pay back child support since my ex husbands wife adopted them and I have no rights to them at all

Joe Escalante: You will still owe for what you didn’t pay when they were your children. That debt will never go away.

Alayna: Also, what is the best way to fight a wrongful, retaliatory ‘academic’ dismissal from an ABA-approved law program? (I waited 7 years to go back to school, only to have an amoral dean sabotage all of my final exams.)

Joe Escalante: This sounds like nasty expensive litigation. If, after explaining all the facts to a couple attorneys, they want no part of it, then you have to move on. If someone will take it on contingency, then you have a case. It’s that simple.

Ginger: How do you structure a startup between partners if you think you will take on other advisers, etc. down the road? Should you reserve shares for future investors, or just divide the pie and dilute later?

Joe Escalante: In many ways it makes no difference but it is a rather involved scenario that would depend on many factors. In general I would consult your tax pro when setting this up, and make sure the process that you decide on is spelled out in your operating agreement.

Hector: why do lawyers in my area claim to do malptactice but wont take my case i have been medically hurt and scarred by our local hospital

Joe Escalante: You don’t have a right to have an attorney take on a civil case for you. They do it if it looks like their time will be rewarded with money. Otherwise, they might be hurting their other clients, or their family.

Brian: When buying a business such as an Auto Repair shop, if it is clearly stated in both the LOI and Purchase agreement that I am not liable for any liens, etc…is that true and would I be completely clear?

Joe Escalante: That is generally enforceable contract language.

LegalZoom: Attorney Joe Escalante will be back on Tuesday with more free legal advice. Join us then to post your questions:

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October 16th, 2012 at 5:37 am