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How to Change the Executor of a Will and More Free Legal Advice – Free Joe 1/3/12

with 2 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.

Robin: I have a will and want to change who my executor is. Does the law require me to notify the previous executor (I’m in NE)?

Joe Escalante: I can’t imagine any legal requirement to do so, but these laws are different in every state. Legalzoom has an excellent piece on changing executors. Check it out:

Eric: hi joe, i started a adult web cam biz and wanted to know if i should go the independent contractor route with my models. they work their own hours out of their own houses. if so, does legal zoon offer any forms for this? thank you.

Joe Escalante: Sorry Eric, my only advice in the area of pornography is to get out of it as quick as you can. It never ends well. Thanks.

Stephen: Hi Joe, if I am being detained or arrested by the police and they ask me for the password to my cell phone, do I have to tell them or do they have to get a search warrant to look through my phone?

Joe Escalante: they would need a search warrant, and you would need a lawyer.

Lois: I found out that my husband is married to another women from another state , what are my legal actions, I don’t have a clue of what to do, can you help?

Joe Escalante: If he was married when you married him, there’s a good chance you are not really married. Your marriage would be invalid. You can petition the court where you were married or where you reside for an annulment if you were the 2nd wife. If you were the first, you would have less grounds for annulment and more likely be facing a divorce instead, unless you’re into it and you want to keep her around and make her a slave or something. But then you might run afoul of state polygamy laws.

Divorce and annulment laws are different in each state, however, previously being married would qualify for an annulment in all of them. An annulment is an edict from the court declaring that your marriage never really existed. However, you have to divide up property and stuff like that. But there is an argument that there could be no traditional community property because there was no community.

Since polygamy is illegal in all states, you might want to notify the District Attorney in your state and report your scandalous husband for the crime he has evidently committed.

Teralyn: Hi Joe, I started up an LLC in September thinking I was leaving my current one & starting a new biz from scratch. Right after I got it up & functional, I was offered the opportunity to purchase the LLC I was set to leave. So I bought it. Question is, can the LLC I created sit in a sort of “non op” status so that I don’t have to pay its fees? I paid so much to get it set up ($600) & I may want to use it in the future. So is there a way to file something that says its mine but it’s not generating income so I won’t have to pay the $800 annual & file other things that go with it?

Joe Escalante: You need to check with the secretary of state in your state to get their policy on this, but most of all, this is a tax question. You need to talk to your tax professional to get the right story here.

Maury: Joe my job agreed to transfer me to another job (signed agreement) but now refuses to honor the agreement what can I do?

Joe Escalante: That depends on the language in the agreement. If it’s just a promise, that’s not enforceable. If it was a valid contract, where they promised something in exchange for something you gave up, or something you relied on to your detriment, then they have breached a valid contract and you deserve payment for your damages.

For example, if you bought a house in the new area of the new job, they would be liable for all the expenses involved in selling that house and getting a new one.

Priscilla: can i submit some kind of forms to the court to protest and or stop a QDRO on my state retirement? i have good cause!

Joe Escalante: Yes. That’s what the court is there for. You petition them for the changes you want, you notify your ex, and you guys go to court and present evidence. Then the court decides what is just. Good luck!

Allen: What is the lenght of time to do a wrongful lawsuit

Joe Escalante: Allen you have rephrase this. A wrongful what lawsuit? Wrongful termination? Wrongful death? Wrongful diaper change?

Casey: In Regards to the Constitution, What are our Rights as Gun Owners, and how has the Justice System abused their Powers to force gun Regulations?

Joe Escalante: It is the opinion of many legal scholars that the 2nd Amendment has been subverted by most state gun control laws. I agree with them. The judiciary has been largely complicit. The best thing you can do if this is important to you is to try to get a president elected that will nominate Supreme Court justices that will reverse this trend. It is very possible to do this.

Deby: If i have a restraing order on my ex and he gets arested less the required distance from me for something else can i do something about it?

Joe Escalante: If he was in the forbidden zone, for any reason, you can notify the district attorney that your restraining order was violated, and you want him prosecuted. I would watch this reality show.

Richard: Im a start up web hosting company (LLC) registered in one state. Some of the businesses i may work with are in other states. It’s that ok? Or do i need some sort of reciprocity?

Joe Escalante: It’s certainly legal but this is really tax advice. You need a tax pro experienced with multi-state operations.

Deby: Also im from colorado how do i go about getting my sons fathers rights taken or to charge him with neglect its been about 1 year with no contact or support

Joe Escalante: Oh, Deby. You’re going to want to petition the court for “termination of parental rights.” This is hard without the bio-father’s cooperation, but you can try. Maybe he wont contest it.

Erica: I registered my small business as an S-Corp. Do I have to use a professional accountant to do my taxes? Or can I do them myself?

Joe Escalante: I would use a professional accountant. This is serious business. An S-corp can do amazing things to lower your tax burden. However, if you do it wrong, it can do amazing things to land you in jail for tax fraud.

Alicia: Question: can an esthetician be an LLC in CA?

Joe Escalante: Yes. Talk to a tax professional to see if this is the best way to go for you.

Holly: Parents left home and $$ to me and sister upon their death. She has wasted away her $$ and now her own home is in danger of being foreclosed. Can her bank come after co-owned ‘parents’ home?

Joe Escalante: Banks don’t do this. They can go after people for deficits, but they don’t.

Harold: Hi Joe; Afreind of mine passed away in october would like to know if one of her daughters can take possesion of property and possesions without going to probate there was no will and niether of the daughters names were on anything. located sarasota county , florida

thanks Joe

Joe Escalante: No. The state demands a probate period because theoretically your friend could have many creditors that must get a chance to get at his property before it passes to his heirs. A trust, however, can put property in a situation where it will pass directly to the heirs without probate. If he’s already dead, it’s too late. The estate must go through probate, even in Florida.

Ian: Started LLC in November, but generated zero revenue. is it required for me to file taxes for 2011? Also, I get reminders for “sales and use tax” from legal zoom every month, what am I required to do? So I need to do something every month or just once a year?

Joe Escalante: Yes. Talk to your tax guy. You have to file. You might even have to pay a minimum tax, regardless of whether you made any money. It’s different in each state.

LegalZoom: Typically the reminder emails sent require no action on your part, but if you want to find out more about them contact our customer service department for business services at 1-800-773-0888.

Jo: Can a neighbor mount video (camera) and audio (microphone) equipment facing our property right next door? both face our picnic table and hot tub parts of our yard.

Joe Escalante: The short answer is yes. However, you could file for a restraining order if you can demonstrate that it’s a violation of some recognized right of privacy you may have or if the neighbor is a known danger.

Generally, if he has the right to look next door, and listen to what’s happening next door, he can record it. If he was recording activity that was behind closed doors or curtains, he would be violating your reasonable expectations of privacy. Do you have those reasonable expectations in your back yard jacuzzi? Maybe, maybe not.

Debra: Can you just sign the deed to land over to someone else?

Joe Escalante: Yes, but it must be recorded with the county registrar to make it a valid deed transfer.

Di: Is the pre-court bargaining awash if a witness does not show up to court and the judge rules “Nolle Prosc”?

Joe Escalante: Nolle Prosequi? That is used by the district attorney to declare he’s not prosecuting the case. The judge cannot decide this. Pre-court bargaining, or “Early Disposition Programs” are different everywhere.

Casey: Is it Possible, that the NDAA Signed by the President Gives the Authority to Permanently Detain American Citizens?

Joe Escalante: That might be the fear, but I think it’s unfounded with the present make up of the Supreme Court. Everyone in the U.S. has a right to a writ of habeus corpus. No president has ever suspended this right, except Lincoln during some crazy circumstances called the Civil War. During war time, with enemy combatants? That’s always going to be on a case by case basis. My understanding of the NDAA is that is designed to deal with terrorists. We can worry that it will be used on regular citizens, but we can worry about a lot of things.

Pam: is there any thing we can do to stop web based at home businesses that we know have scammed us<

Joe Escalante: The problem is that most law enforcement agencies don’t have the time or resources to deal with all this. If a little girl hasn’t been abducted, the cyber crimes units are not going to put much into your business scam problem. They are going to say that it is a civil matter, so sue them in civil court.

Since there are a lot of little girls being abducted and harmed from this kind of activity, they are perhaps justified in ignoring the property crimes, but that doesn’t help you.

The federal government has posted some info on reporting these crimes. Here’s a link but be prepared for your local police department to tell you to go away if you try to get a police report taken on this kind of thing.

Tiffani: How can I sue someone if I don’t know where they live?

Joe Escalante: You have to do some detective work, or hire a private eye. Try It’s cheaper than a real private eye. The defendant must be served legally. It’s up to you to find out where to serve him.

Taft: Is there a statue of limitation on suing someone that I gave a loan to? It’s been more than 3 years and he hasn’t paid me back.

Joe Escalante: There probably is, but it varies from state to state. Make sure you have this stuff in writing. If it qualifies for small claims court in your state, you might want to take him there right away.

Patricia: My 88 year old mother living in Pennsylvania has no fill and does have money and items that should be left to certain people. What happens if she leaves no will?

Joe Escalante: Each state has rules on where property goes. Generally, it goes to the closest relatives, beginning with the spouse, then children, and so on. First it must go through probate. Get a will today people!

LegalZoom: Here’s a link for our will services, Patricia:

Doug: I allowed a plumber to come in my yard to fix (big hole) a neighbors sewer line and all is covered up and done. Now my sewer is stopped up. My plumber snaked the line and mud is all he can find. How do I find out and prove who or what damaged my sewer line?

Joe Escalante: You should send a letter to the neighbor with a statement by the plumbing professional who believes it was caused by the neighbor’s plumbing problem. Include an invoice for the costs. Give him 30 days to pay it. If he doesn’t pay, take him to small claims court and bring the plumber or a signed affidavit of his beliefs. If the plumber is believable, you will probably prevail.

Stan: Hello: My daughter just called me saying that a close friend had a 3-day eviction notice posted because she failed to report new income in a timely manner. (HUD housing apartment complex). Can she somehow get “a stay” or something to allow her more time “to move”?

Joe Escalante: They can’t evict her without providing for her day in court for an unlawful detainer trial. She will need the services of a lawyer to navigate through this mess, I’m afraid.

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 5th, 2012 at 5:35 am