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How Long Does Probate Take? And More Free Legal Advice – Free Joe 1/24/12

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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.

Karin: My mother is elderly and has been revising her will. What should she do about her property? Some advise to sign it over to the children in order not to pay estate taxes, is this good idea or not? Also, how long should it take to probate a will?

Joe Escalante: I can’t give you tax advice, but I can tell you that if you place the property in a living trust, that property will not go through probate at all and that saves you a ton of money and time. Probate can take months and months depending on the county’s back log, etc. Click the living trust link below and get some info before it’s too late.

LegalZoom: Here you go, Karin:

Cheryl: can I get a visitation order modified on my own in MO????? I can’t afford a lawyer and need to get it done for the safety of my children, already proven him abusive and not mentally able to take care of children

Joe Escalante: You can petition the court on your own without an attorney, but of course you are at a certain disadvantage. However, people do it all the time. You are called a “pro se” litigant. That will help you when searching for help with this on line. The father will of course have to be served with notice of any proceeding that will affect his rights.

Trish: How do you fight CPS and their misconduct and criminal actions in child abuse cases when they continue to lie, ignore, and dismiss abuse of a child due and keeping a child or children with an alchoholic, abuser, pedaphile, or a obvious neglectful parent?

Joe Escalante: Each state has their own “complaint” process. of course, you should start there. If that doesn’t work, you could sue the state in civil court for negligence. You could harness the power of the Attorney General to file criminal charges. However, both those options are problematic and almost impossible.
Government workers have a qualified immunity with respect to carrying out their government duties, so that makes it tougher. You need a fancy lawyer to get any results with this kind of trouble. The most important thing to do right now is to gather all your evidence and witnesses. You will need that.

Barbara: question for Joe Escalante. We are getting a Durable power of attorney for my 92 year old mother. Can she still write some checks and used her credit card if it take affect immediately. We don’t want her to feel useless and that she can’t do anything. Please help. We already received the paper from Legal zoom.

Joe Escalante: A POA does not take away a principal’s rights to make decisions. An agent just gains the power to act along with the principal, in accordance with the authorization in the written document. Only a court, through a guardianship and / or conservatorship proceeding, can take away a principal’s rights to govern his or her own self.

Janice: Joe, I have a sister who took over my brothers estate (no will) when he died Aug 9th 2008. She and my other brother split his assets. Then on Nov 9th 2008 my mother died. She was executor of her estate. She is dispursing assets the way she wants without regard for my mothers wishes. Also not providing paperwork required by law of an executor. The estate is not finalized as of today. What state agency in Idaho is in charge of enforcing executors to legally do their duty as executor? Any direction would be helpful.

Joe Escalante: You need to talk to the probate lawyer, or that equivalent, in your county to begin to get this cleared up. Each county is different but in my county there is a guy who is the “lawyer” for the county in terms of probate issues like this. It sounds like your brother and sister may be committing fraud against you and creditors of the estates that are not being legally probated.

Tati: so if they rent a truck with problems and you get into a minor accident due to the truck not being up to par and they tell you oh yea there is something wrong with the truck can you still sue them.

Joe Escalante: If there is evidence that the damages were caused by negligence of the rental company, they will be liable for the damages. If they deny it, the court will need substantial evidence to decide if you have proved that it was their fault. If they told you there was something wrong with the truck, make sure you get it in writing.

Elli: My daughter is giving us the deed to a property that we have been paying off while living there. We have also been paying the taxes on it each year. What other taxes would we be charged in the transaction? Someone said to have her sell it to us for $1.

Joe Escalante: Someone’s an idiot, and it may be that person. Don’t take tax advice from anyone but a professional. I am not one, but I am a believer in trusts. That property could be in a trust that effectively awards the property to you when you have done all these things you are describing, like paying mortgage, and property taxes, etc. An estate lawyer is best to talk this over with since it is somewhat complicated, but at least check into the trust info on legalzoom to see if that will suit your needs. Click below.

LegalZoom: Here’s the link, Elli:

Steven: I was found guilty of DWI did my time and now bazoria county claims I still have huge fines but the DA says I don’t who do I talk to?

Joe Escalante: This unfortunately involves a local county mess that I couldn’t really help with. If you were represented by an attorney, he should clear this up for you. If you weren’t, this may be the reason you are in this spot. Talk to a DWI attorney in your county and get his take on it. There are some fees that may go to the county, some to the DMV, and some to the court.

Michael: If a state has violated your United States Constitutional rights to “Equal Protection of law” and “Due Process of Law” by failing to properly served to with a child support withholding order and then start garnishing your wages are you entitled to recover those illegally garnished wages?

Joe Escalante: Yes. There are attorneys that do that all the time. You might be able to find one on a contingency deal. Try Attorney Connect below to start looking for one.

LegalZoom: Here’s the link, Michael:

Susanna: I gave some money to an adoption agency toward one boy’s adoption to help him find his forever family. They took the money and worked on finding him a family. After some months, they told me he was already adopted (through another agency) and wanted the money to help another child, so I agreed to let them keep the money and put it toward another adoption. (Since adoption is expensive, children who are harder to place have an easier time getting a family if some of the cost of a family’s adoption is already paid for. In other words, my money was to help a family afford an adoption not pay the agency for any service.) I’ve since found out that the boy wasn’t adopted after all, meaning my money was misdirected because of this falsehood. To be clear, I do not know if the agency was aware they were not being honest with me. During the search for a family, the boy’s file was sent to another agency from which he was supposedly adopted. What are my options for getting my money back so I can help the boy directly or having the agency put an amount equal to my original donation toward the boy I was originally trying to help?

Joe Escalante: You can sue them for breach of contract. If it was an amount small enough to qualify for small claims court this would be simple. If not, you might spend more litigating than you recover. A stern letter from an attorney threatening legal action if they don’t return your funds might be the best way to begin. I would go with another agency next time.

Linda: Is a will the same as a living trust. If not which is better?

Joe Escalante: No. A will just says where stuff goes when you die. Then when you die, the court puts all your property through a probate process to basically announce to all potential creditors that they should “come and have at it.” This process takes time. Only after probate can property be distributed, if it wasn’t used to pay debts.
People place their property in a trust so that it can stay in there when they die, and be “controlled” by whoever they pick when they die. This way the property avoids probate but it could have the same effect as passing it through a will..

However, if the property is held jointly, it would avoid probate anyway. It’s not as simple as it seems.

Andrej: If I have a bubble insurance policy on everything, including personal and real estate investment properties, should I still put my personal residence in a type of trust? My personal residence is also a duplex.

Joe Escalante: I don’t know what a bubble insurance property is, but a trust is valuable for many things, but the thing I am most familiar with is avoiding probate when you die. If you are trying to avoid liability, then whether or not the trust is revocable or irrevocable would be an important issue. For stuff this complicated, you should see a trusts and estate lawyer.

LegalZoom: We can help you find an estate planning attorney, Andrej:

LegalZoom: That’s it for Free Joe Tuesday! Come join us on Friday for more free legal advice from Barely Legal Radio w/ Joe Escalante!

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January 26th, 2012 at 5:40 am