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Is a Registered Agent Required for an LLC? And More Free Legal Advice – Free Joe 11/22/11

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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.

Anna: I adopted my grand daughter, can I put in a Will to give her back to her father in the event of my death if she is still a minor?

Joe Escalante: You can appoint the father to be the guardian of the child after your death. You might want to put your assets in a trust to care for her as well.


Joe Escalante: I would really need to know more facts. This doesn’t seem like the kind of thing we can resolve here. It sounds like you’re saying that the lawyer got paid directly from the government. I’ve never heard of such a thing. I would try to get a consultation with an attorney who specializes in Social Security benefits to get another perspective on this.

Bedie: I had a friend loan money to a client of mine that was about to get a probate settlement. The friend got my client to sign and notarized contract for this act. When I was paid, I advanced her the money she loaned my client with specific instructions that when she collected from my client, she would reimburse me the $2,000 I advanced her. Two years and she never even attempted to collect from my contact. Do I have a valid Small Claims Court action against her and is there a statue of limitation for filing?

Joe Escalante: The strength of your case will be dictated by the language in your contract. E.g. if it says there is a deadline, or forces her to make best efforts to collect that would help. Best would be language that says, “if you don’t collect from my client, you have to pay this back yourself.” Here’s a cool Statutes Of Limitations resource by state:

Timothy: What are the legal options to get a parental custody evaluator to present his report to the judge after a year of refusing to do so?

Joe Escalante: This varies by state but if the evaluator is appointed by the court and under a court order to present the evaluation, you could try petitioning the court to find the evaluator in contempt for not complying with the order.

Yvonne: Hi Joe, My Father passed away in 1985 and took early retirement at age 53 that same year given the option from his job with the Chrysler Corporation. My mother only learned in 2008 that she was entitled to his pension that started immediately upon her inquiry, is she legally able to retained the back years she could have been recieving his pension from her age of 65 or when he would have been 65? If so, what steps should be taken? Thanks Atl. GA.

Joe Escalante: You guys need to talk to a lawyer in your state that specializes in pensions. This stuff gets complicated. I don’t think you should attempt it on your own. Check the link below to get started if you need help finding a good lawyer in your area.

LegalZoom: Here you go, Yvonne:

Jon: Hi Joe, I currently am very frustrated with the legal system. My wife and I found out months after the fact that my daughter was molested by an ex family friend. We immediately took the necessary legal actions. Our daughter who was 13 at the time had her forensic interview when she was 14 and the detective believes everything due to the details and information she provided. However the physical evidence is lacking. And the sicko won’t return the detectives phone calls. We have canvased his area with fliers saying he is “wanted for voluntary questioning” which got him to call the detective however someone started telling him not to go…so we’re back to square one. Do you have any advice for us other than to wait? This has been going on for about 6 months now. Thank you for your help

Joe Escalante: You’re at a great advantage that the detective seems to be taking this seriously. He’s probably overworked and the fact that he believes your daughter is real asset. The fliers idea was genius. Without physical evidence, a jury might find it difficult to convict “beyond a reasonable doubt.” That’s the problem. The D.A. wont prosecute unless there is likelihood of a conviction by a jury.
You could file a civil suit against him, but that would be expensive, and may not bear any fruits.

Joana: Does an LLC have to have a registered agent and if so, could one of the members be the registered agent instead of an independent 3rd party?

Joe Escalante: Yes, you can do the person lives in the state of the LLC. However, the reason why people don’t do that is because they want to shield their personal info. The agents address is plastered all over the place.

JoAnne: I rent an apt. My toilet is vented into my attic and not outside. I’ve asked my landlord many times to fix it and he keeps blowing me off. Do you have any suggestions?

Joe Escalante: If this is a violation of a building code in your area, he could be in breach of the warranty of habitability inherent in any written or oral lease regarding residential property. After you’ve warned him in writing, and he doesn’t fix it for 30 days, you’d probably be safe having it fixed yourself and deducting it from the rent. Warn the landlord that you intend to do this and he’ll probably take action to fix it. Make sure it’s all in writing.

Anika: Hi… I would like to know if someone has legal guardianship of a child what happens to the child if something (death) happens to the legal guardian???

Joe Escalante: The court will decide what is in the best interest of the child. that is why you should create a will that appoints a guardian of which you approve. If you appointed Snooki or someone like that, the court would still do what’s in the best interest of the child and give custody to someone else, like a relative, but your wishes will at least be considered and, if reasonable, honored. Someone would have to go through a lot to challenge your wishes. Click the link below and make a will Anika.

LegalZoom: Here’s the link, Anika:

Peggy: When my mother passed away she left the house for 2 of us to split or buy out what is the best way to just sell my part and get my money and since my sister has lived in the house for over a year should she be paying me rent?

Joe Escalante: You make her an offer to buy you out. When her lazy ass refuses it, you threaten a forced partition sale. That allows the court to order a sale, and you get your share, burn. This works every time.

Jaime: I freelance and get all kinds of payment (on payroll W2, off payroll 1099, etc..) Thinking about getting a DBA. But when I name my company, which I’m just making up now, will this legally mean I own it or do I still need to TM or register or make an S-corp or LLC to make it official?

Joe Escalante: Your D.B.A. will only allow you to open a bank account and cash checks made out to your company’s name. The next step is to get a Tax I.D. or E.I.N. number and then talk to your tax lady about what kind of entity you should be, a sole proprietor, a corp, LLC, partnership? A Trademark will prevent others from providiing the same service or product using your name, or a name that is too similar. Good luck.

Julie: If I buy a house with my boyfriend as joint tenants each owning 100%, and it is paid for in cash, so no mortgage, who claims the property taxes? Do we split it 50/50?

Joe Escalante: I hope you’re not living together, but it’s really none of my business. The government will come after each of you for 100% of any unpaid property taxes is my guess, so keep that in mind. Contractually, you guys can make any arrangement you want. You can agree to 50/50. You might want to put that in writing in case it’s disputed later.

Jeff: If your llc is in one state can you conduct training in other states and what fillings would need to be done in each state training is to be conducted? Thank you.

Joe Escalante: If you asked that foreign state, they would say, sure, register here and give us money, and pay taxes here. So you are better off not asking them. Instead, get a good tax pro on your side. I don’t think you owe that foreign state as much as you might think.

Tamara: Question: If you purchase life insurance today with the American dollar, what happens to your investment if the US dollar is eliminated and a new currency is created–say the Amero or something else?

Joe Escalante: Great question. Your insurance company is going to have to make some decisions. IF they don’t want to honor policies bought with the old currency, no one will buy new policies. They will probably give you the current market rate Amero pay out for the dollar value of your policy.

Barbara: Do I have to have an attorney to make out a will?

Joe Escalante: If you do, this company is going out of business real soon. No. you can scrawl it on a napkin if you do it right. But, to make it smooth for your heirs, do it on nice paper with computers and witnesses and stuff. Legalzoom is absolutely the best way to do this in my opinion. Click below.

LegalZoom: Here’s the link, Barbara:

Gina: My ex-spouse receives my disability profile pension for my 16 year old daughter every month (my daughter lives w/my ex-spouse in Texas). Am I still required to pay child support and/or medical insurance benefits even though the money my daughter is receiving is more than enough?

Joe Escalante: You should petition the court order to reflect this income and thereby reduce the amount you have to pay, even if it is to zero. Otherwise, we have a case of unjust enrichment, which no court should condone. That’s why they call in unjust.

Jeanne: Hello, thanks for taking my question. A somewhat large amount check was sent to me from a well known company in AZ. The check was made out to me, w/ my address, etc. I expected it and was owed it, and now the company said that they made a mistake and want the amount returned. Beyond the issue of the check is rightfully mine, will they be able to legally collect on this check? Thanks.

Joe Escalante: If you cashed it, they will only be able to file a civil claim against you to recover any money they feel they are owed. Unless it’s an underground company that sends people to break your legs, old school.
If you are owed it, they will have to prove otherwise. The burden is on them.

Whitney: I evicted someone how long do I have if I want to sue them for damages?

Joe Escalante: This varies by state. Hopefully this chart will help.

Brian: Hi!

Prior to our marriage, my wife bought a house with two other gals. One of the other gal’s name went on both the primary and secondary mortgages because my wife and her friend had unverifiable income and couldn’t be named on the mortgage. Later the gal who held both mortgages complained about holding so much liability in her name, so my wife refinanced the second mortgage in her name. We don’t believe the refinanced mortgage was tied to the first mortgage, but are unsure. The gal who held the first mortgage, later (after my wife and I married) decided she no longer wanted to make payments on the house or live there. After a long process trying to avoid foreclosure, we gave up realizing the gal on the first mortgage didn’t want to save the house, she just wanted out. It took us a while to realize that ultimately we had no say because there was only a verbal agreement stating each party’s responsibility in maintaining the mortgage. The gals stopped paying the mortgage somewhere around September of 2010. My wife and I continued to pay on the second mortgage until January of 2011 when the house went into foreclosure. According to Citibank, the second mortgage company, the loan was to be tied to the first mortgage when the house went in to foreclosure. Instead, it went to collections. No community agreement was ever signed by the three gals living in the home that was foreclosed. I understand that since the second mortgage went to collections, with a court order they can garnish wages and savings. Is my income liable in the State of California, even though I was never a part of the property? What about my wife’s investments as far as collections are concerned. She put up all the money upfront on the original mortgages and has lost over $100,000 in the process. Is she just out of luck on this $65,000? We also would appreciate advice so that we can figure out what our rights are, how to proceed and where to start with the collections on the second mortgage. Thanks!

Joe Escalante: This is a lot to digest. All debts incurred prior to marriage are not joint debts, so you have no liability in that case. If refinancing occurred during marriage in California, that’s probably a joint debt and they can come after all joint assets like your paycheck.

LegalZoom: That’s a wrap for Free Joe Tuesday. Joe will be taking Friday off for the holiday, but we’ll be back next Tuesday with more free legal advice. Have a Happy Thanksgiving–see you next week!

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November 24th, 2011 at 7:00 am