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How Do I Know If I Need a Will or a Living Trust? Legal Q&A – Free Joe 11/9/12

with 3 comments

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.

Antoine: Is it better to start a living trust or to just have a will? Does it really matter if your assets are above or below $50, 000 to start a living trust? How much on average does it actually cost to start a living trust?

Joe Escalante: A trust is important if you are trying to leave property to someone that wouldn’t get it without probate. So with me, my wife gets my property when I die without probate because its held in “joint tenancy.” so we dont need a trust so much. Talk to your tax lady. It all depends on what property you are concerned about, or if you are trying to control people from beyond the grave.

Hector: What is the easiest way to keep track of expenses for my business?

Joe Escalante: Not exactly a legal question but here goes. You’ve got to get familiar with an accounting software program. My company uses Quickbooks software and we like it. Tax people like it too. Also, check out to keep track of your personal expenses, I’ve been playing with that lately and I like it.

Barb: if u work were they use a contract and they redo the contract and u r working with out one does it go back to the old one till they get the new one done

Joe Escalante: That depends. Absent any guidance in writing on the subject, if both parties are acting as if the new contract represents the terms of the agreement, the new one may be in force. It depends on how both parties are acting, and if there was a “meeting of the minds” regarding he terms you are seeking to enforce.

Debbie: If parent owns home and home was given to only one particular child. Is it possible that another sibling can get the home?

Joe Escalante: While living, people can transfer their property to whomever they wish.
After death, the terms of the will or trust will dictate who owns the property. If the will is deemed valid by the court, there’s little you can do to alter what the court believes are the true wishes of the decedent. If there was no will, the property would probably pass to all siblings equally, assuming there was no living spouse.

KC: Could the members of Assocated Student Governments in California Community Colleges be considered holders of public office for the purposes of Government Code 1020?

ASG’s are authorized to operate by statute (Ed. Code 76060), The members have fixed terms. They have sovereign powers to collect taxes as also authorized by statute (Ed. Code 76060.5), and other powers as authorized by law.

“Black’s Law Dictionary, Abridged 6th Edition, p. 1230:
Public Office “Essential characteristics of a ‘public office’ are:
(1) Authority conferred by law,
(2) Fixed tenure of office, and
(3) Power to exercise some of the sovereign functions of government.
(4) Key element of such test is that “officer is carrying out a sovereign function’.
(5) Essential elements to establish public position as ‘public office’ are:
(a)Position must be created by Constitution, legislature, or through authority   conferred by legislature.
(b)Portion of sovereign power of government must be delegated to position,
(c)Duties and powers must be defined, directly or implied, by legislature or through legislative authority.
(d)Duties must be performed independently without control of superior power other than law, and
(e)Position must have some permanency.”
[Black’s Law Dictionary, Abridged 6th Edition, p. 1230]”

Thanks again for your previous answers, I hope you can answer this one too! Rock on!

Joe Escalante: I say no. I don’t think gov code 1020 was meant to apply to ate dent government office holders. I don’t know what it was intended for actually.

Linetta: We are in Oregon and my husband is very ill. If he should die, what will be expected of me? How can I know I have done everything to prepare for this difficult time?

Joe Escalante: Legally, there’s nothing you have to do, but he would probably like it if no one was overly burdened with probate issues. Make sure your property is held jointly (like as “joint tenants with right of survivorship”). Make sure your bank accounts and cars are also jointly held. That property will avoid probate. Putting your property in a trust is a good idea if it’s going to pass to your kids upon death, but here it will pass to you so it’s fine to let it pass as jointly held. Get a will drawn up to deal with the rest of the property and run all this stuff by a tax professional. That is really important.

Stanley: Good Day Joe, I want to know how I can set up an LLC.? I’m starting an internet business with my som and I like to find out what are the correct steps to doing so here in New york City.

Joe Escalante: The best and least expensive way is through Legalzoom. Next best way, though expensive, is with the help of an attorney.
Make sure you get a tax pro on board before you do any of this however. You might be fine as a sole proprietor with insurance at first. Click the link below and check out legalzoom’s LLC stuff.

LegalZoom: Here’s the link, Stanley:

Terry: Got a ? for you, we have been trying to get an attorney to begin a litigation against someone who took some money from our business w/o doing the service we requested…..he wanted the funds up front…I tried to tell my husband not to do it but the job needed to be done and he wasn’t looking into time….nothing has been done so far….$11,000 is the monetary amt in ?. How can we go and get this money from this man ourselves since the atty isn’t doing her job she was pd to do?

Joe Escalante: Check into the small claims limit in your state. It’s 10k in my state and that will eliminate all attorney fees. Also, the courts have self help departments for “self represented” or “pro per” litigants, and you can file lawsuits in many jurisdictions by just using court forms without drafting a messy complaint. So it can be done. But can you win that way? It’s hard.

Laura: If I own 60% of a property in Ga, do I need others approval to change title?

Joe Escalante: It depends on how it is held. in some cases you can sell your interest without permission, but you can’t change how the title is held. If your co-owners refuse to sell you can file a petition with the court for a forced partition sale.

Bart: can you sue an x wife for support even if she has no job.

Joe Escalante: Not really. Court will require an amount of support from her commensurate with her ability to pay .

Brandon: I have a small business LLC registered here in South Carolina & recently a news report along with the governor announced that the state’s Department of Revenue computers had been hacked, along with tax returns, payment info.(account & routing numbers), I’m guessing federal tax id numbers too. Now the state is offering a one year theft protection, that is retroactive in the event anything has happened. Is there any other recourse that I should take? A new bank account, look into getting a nee EIN/Tax id? there’s n now talk of a class action lawsuit

Joe Escalante: You can get some free legal advice on what to do in this specific situation by speaking with whatever attorney is going to try to recruit you into the proposed class action suit. And see what your tax lady says as well. Most class action suits are a waste of time for everyone except the lawyers.

George: I did not file income taxes for three years in a row due to being ill and not having any extra money as i still needed to pay bills to survive now my status is on social security disability i want to clear this matter before i reach 62 and my pension kicks in what must i do?I still live on just enough to pay my bills.Thank You.

Joe Escalante: I would have my tax lady call the IRS and start the process of settling these things after she has prepared all the missing returns. You should find a good tax person that has experience settling these outstanding issues. There are lawyers that specialize in this as well but my tax lady seems to do fine without any lawyers involved. Also check out Gary the tax guy here on Thursdays.

Rose: Been separated from my husband for the past 3yrs. He moved out left me and my two kids ages 23 and 19 everything. Which is the best and cheapest way to get my divorce finalized.

Joe Escalante: If it is uncontested, Legalzoom is the best way. If it is contested, there is no cheap way. You get a lawyer and you pay the bills. Ugh.

Bonnie: If I’m starting a consultant business is it best to go with Sole proprietorship or LLC? Small scale maybe one employee down the road.

Joe Escalante: Sounds like sole proprietorship w/ insurance is the most prudent way to get this started, but make sure you have a good tax advisor on board from the start. They will tell you when it’s time to get an LLC.

Cyncha: is there a time limit when you can appeal a utility company in writing, if is on record that you have had multiple conversations on the subject..they told me 60 days however, no one told me this during our years of speaking. (Philadelphia)

Joe Escalante: The statute of limitations on a breach of contract varies by state. For example, it’s 4 years here in California. They may have something in their list of terms and conditions that purports to have you agree to some arbitrary 60 day limit for disputing bills but it doesn’t mean that is the end of it. You could take them to small claim court asserting that those term were a “contract of adhesion.” (Google that)

Mecie: I have an invention. Do I NEED. A patent/trademark lawyer to get my idea in the market?! How do I find a patent lawyer?

Joe Escalante: Many people register for a “Provisional Patent” while they’re shopping for a patent attorney. Click link below. To find a patent attorney the best place to start is at your Starr’s bar association. Or click the other link below.

Rene: I have been “divorced” for almost 11 years. It was not a nice one, but I took the petition to a lawyer, made sure it was kosher, signed it and handed it to my ex. When I went to change over documents back to my maiden name, I was in for a shock. There is no record of our divorce in ANY county in the State of Georgia. I even doubled checked Florida, because that is where we had gotten married. I’ve
tried contacting him on several occasions, he promised to look into it and send me the necessary copies, but to no avail. He got remarried. I am concerned that we are not LEGALLY divorced and I am not sure what to do. Where is my first step, other than the steps of his new wife’s house? If we are NOT divorced its going to cause a huge problem, mainly because of the physical custody agreement of our then 6, now 16 yr old son. HELP!!!

Joe Escalante: If the court where he says he filed it doesn’t have a record, it sound like you may not be divorced. There could be fraud involved here so you should contact an attorney. He may be committing the crime of bigamy if he didn’t really file the divorce papers so the attorney should be able to get his attention on this.

Kathleen: Hello, i have a lien on a contractors home. The home is going up for Sheriff’s sale, do i just show up with my information to ensure i get my payment or do i need to have an Attorney with me? TY

Joe Escalante: Whoever buys it can’t do anything with it until they pay you so I don’t see the need for an attorney. Chances are it will go back to the bank. Stay in touch with them.

Jamie: As a sole proprietor of a company, must I keep funds separate in a personal and business account? (I live in California.)

Joe Escalante: There is no fiduciary duty to anyone that is being breached when you commingle funds in this way so I can’t think of anything wrong with it. However, run it by your tax lady.

Andrew: When allocating ownership using vesting between co-founders should I be focused on maintaining majority vote now while only an LLC?

Joe Escalante: If you move from an LLC to a corp, you are going to have the same ownership positions so it seem to me, if that is something to be focused on ever, now is the time.

Brandon: If a medical or dental office uses their email list to invite patients to their fan page, does this violate HIPAA regulations? Does Facebook retain those emails for other uses?

Joe Escalante: I don’t see how this would violate anyone’s privacy. I don’t know what Facebook does with emails but it seems there are plenty of ways to email customers about your Facebook page without actually giving your patients’ email addresses to Facebook.

Toni: Mr. Joe I live here in Louisiana with my husband he has two grown boys from a previous marriage, we own some land and a house on the property …… what steps would we take to insure that his Sons would not have a claim on any portion upon his passing? I would not want to have to adhere to these two parties in receiving any monies of the sell if I find I am unable to provide for its upkeep…..seeming there was no contribute on their parts…..

Joe Escalante: If the property is held as “joint tenants with right of survivorship,” or whatever the Louisiana equivalent of that is, the property will pass to you if you survive your husband. You can always put the property in a living trust as well, but the survivorship method will do the trick.

LegalZoom: That’s a wrap for Free Joe! More free legal advice coming up next week–join us then and have a great weekend!

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November 13th, 2012 at 5:29 am