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Is My Mom’s Will Valid? And More Free Legal Advice – Free Joe 1/10/12

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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.

Coo: if my mom typed out a will and had her home health nurse sign it as a witness (about 10 yrs b4 her death), is that a valid will or do i have to do probate? My brother doesn’t contest it.

Joe Escalante: If that is her only record of her wishes, it’s probably valid but it will not avoid probate. It will only avoid having the state decide how to dispose of her property.
To avoid probate, you have to put your property in a living trust that survives your death. Since the trust doesn’t die, the property it owns never goes through probate, it just passes according to the instructions in the trust.

Pam: morning Joe i was misdiagnosed with Mulitple Scleros taking shots and all kinds of meds my state said limitations was 6 yrs for misdiagnosis how can this be when you dont find out till 8 yrs it was a mistake so i have diabetes in stead seems so unfair because now my diabetes wasnt treated for all this time

Joe Escalante: Well, it’s not what the state says at this point so much as what a good medical malpractice attorney will say. If you can find one that will take the case, you have a case. If you meet with a few, and they agree with the state, you don’t have anymore viable options to get relief from the harm caused you by the misdiagnosis. If you need a head start to locate some good med malpractice lawyers, click below.

LegalZoom: Here you go, Pam:

Diane: I,m fighting social security at tthis point in time to get my widows disability, i have been denied and i have appealed, still waiting on a decision… Do I need to find a laywer to help me thru the rest of this mess ? I’m from N.C. (and to add, I was on disabilty for quiet a few years, and since I went to them 2 months bfore my 50th bday, they have shut me down totally ) Have been fighting for the help since last Feb. and they shut me off in June. Any advice would help, Thank you.

Joe Escalante: You could really benefit from getting a lawyer on your side. Try to get a couple free consultations to see what they say. If they refuse to take the case on a contingency basis, you have few options but to keep fighting them the way you are. Click below to start finding some lawyers that specialize in denied disability claims.

LegalZoom: Here’s the link:

Susan: If a couple were married for 15 years and are divorcing, is the wife entitled to 1/2 of his retirement fund in Fl.

Joe Escalante: You are probably entitled to 1/2 of the pension earned during the years you were married. You need a QDRO, then you present this to the retirement plan administrator, then you can be listed as the official “Alternate Payee.” Then you are set. Talk to the plan administrator to see exactly what you need.

Clyde: We moved into a home that we had built 18 months ago. Since then, we have had the circuit breakers trip in virtually all sections of the house even when there was no electrical load on them. In some cases, there were no electrical items of any kind operating. We have requested repair several times, namely at the 6 and 12 month punch list dates and several other times. The builder is saying that outside influences or surges outside the house are causing the circuit breakers to trip and that there is nothing they can do. I don’t believe that. When we wrote to the builder’s warranty company, they also claimed that it was an issue they couldn’t resolve, but offered to give the issue to an outside arbitrator if we paid an upfront fee of $300. What advice would you give?

Joe Escalante: Sounds like you have two choices. You either go with the arbitrator, or sue them. If you sue them, you need to know your damages. A simple way to establish damages would be to hire someone to fix the problem. Whatever you paid that person are your damages. However, if it says in your contract that disputes must be brought to an arbitrator, a court may not give you relief unless you do exactly that.
If it doesn’t say anything about arbitration, you might want to threaten the lawsuit unless the contractor pays the $300 for you.

Harold: Hi JOE
My very good friend passed away in Oct. she left no will and hers is the only name on all assetts. Her daughter has taken up residence in the house (which is in foreclosure) her daughter has paid no utilities, mortgage or insurances home or auto (auto also in my friends names) I have suggested putting all bills in her name however she wants to live expense free. ultimately is she liable for these expensives. and if some gets hurt on the property or in the auto who is responsible. I believe maybe I should forward copies of the death certificate to utilities. am i right in this thinking?


Joe Escalante: She is probably not liable for the utility bills unless they end up in her name. But sooner or later, they will be shut off without payment. She’s never going to pay a mortgage payment because the house is in foreclosure. If someone gets hurt on the property, yes they may sue her and the estate, but she sounds like she might be judgment proof, and if the house is in foreclosure, the estate might be judgment proof as well. I can’t condone what she’s doing, but she’ll probably get away with it for quite a while.
The car and all her property legally need to go through probate to be available for payment of creditors that come forward. She can’t just take over stuff and put it in her name, legally.

Alice: Dear Judge Joe, When public agencies turn down lawful CA Public records requests, the expense of the next step-hiring an attorney-leaves most ordinary citizens and many news outlets out of luck. Are judges too overburdened to allow us direct access to them to hear our appeals? Is a simpler or more affordable process possible that would allow the public better access to records? As it stands, access to public records is a rich man’s game.

Joe Escalante: Public agencies do have a few exemptions from the Freedom Of Information Act, and associated State laws. There’s no direct access to Judges for anything other than warrants needed to protect public safety. Access to public records is supposed to cost only the amount they spend to photo copy the stuff requested. But yes, appealing a denial is probably a rich person’s game. If the cause is important, however, it shouldn’t be impossible to attract some pro bono help to get you to the next step. Good luck.

Vicky: My Mom owns her home outright, but she is in a skilled nursing off and on for the past 5 months and long term care. I am the POA, I want to know if we should sell the home to help pay for her long term care or just get a loan againts it?

Joe Escalante:

Howard: Is there anything that I can do: In 1968 a bus failed to stop at an unmarked railroad crossing and was struck by a train. My relative and 8 others were killed. We received no compensation and no investigation was reported. This occurred in New Jersey.

Joe Escalante: Unless you can convince a d.a. to file murder charges, the statute of limitations has most likely run it’s course for this claim. You can always ask the private company responsible to help you out, but their shareholders have a right to know what the liabilities are in their company. Even though it was unfair for your relatives to not be compensated for their losses in 1968, the law finds it unfair to sit on your rights and then pounce on someone 40 years later. Sorry.

Yolanda: I was originally pulled over for unsafe lane change and driving 15mph in a 40mph zone. I was also charged with a extreme DUI.

I proved that I was driving 35mph and was offered a plea dismissing everything except for just DUI .20

If the prosecutor is dismissing the charges, that got me stopped in the first place, shouldn’t the whole case be dismissed?

Joe Escalante: Interesting, but the point here is that the D.A. is dropping that charge only if you confess, admit, and take responsibility for driving intoxicated.
If you plead not guilty, you could go to trial and try to prove that there was no probable cause to pull you over because you were actually driving 35 in a 40 MPH zone. However, “unsafe lane change” is quite arbitrary. It would be hard to prove that the officer was abusing his discretion, but not impossible.
If you prove there was no probable cause to pull you over, and you do not admit that you were driving under the influence, you could conceivably beat this thing. You would need a good lawyer though.

Tippy: is there a difference in a trial lawyer and a lawyer?

Joe Escalante: They don’t have different licenses, but based on experience yes. A trial lawyer has trial experience. All trial lawyers are lawyers, but not all lawyers are trial lawyers.

Karin: In 09 I declared bankruptcy ch.7 and “lost” my paid in full 2 timshares( delinquent on maint.fee for 2 yrs) but property tax notices keep coming! Am I still liable for those?

Joe Escalante: First of all, I like your profile photo. Is that real? If the taxes are from when you were the owner of the timeshare, I can’t see the IRS forgiving that without a fight. However, they might settle with you for less than the full amount. If the taxes are from when you were not the owner, that is a mistake and you should not be liable for them.

Mariecor: Please explain further fair use and public domain. There’s a third one, too, but I forgot what it’s called other than it starts with the letter “C”. Need to know, please, to prevent copyright and trademark infringement and plagiarization litigation. Thank you :)

Joe Escalante: This is my specialty. I do two radio shows on it each week. One on Sundays on KTLK AM 1150 in L.A. and one on Fridays on
I also have a lot written about it on my site, The best thing for you to do is to go to that site and put your question in the “contact” section and I will answer it in detail for the radio show.
In the mean time, I can tell you briefly that the Fair Use Doctrine is something actually in the Copyright Act. It allows for certain uses of other peoples’ copyrighted material. Basically a use is “Fair” if it comments on or criticizes the actual copyrighted work, creates a “transformative” work, doesn’t hurt the value or marketability of the original copyright, doesn’t create confusion as to an endorsement of Fair Use, and if the Fair Use only uses as much as is necessary to make the point. For more, call me at 877-LAW-4777, or post at the site. That number is for show biz and intellectual property advice only.
Regarding public domain, you should get the book on it by Nolo Press. It’s really good. Or, again, ask a specific question on my site.

LegalZoom: That’s it for Free Joe Tuesday! Barely Legal Radio w/ Joe Escalante will be back on Friday with more free legal advice. Join us then to post your questions!

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January 12th, 2012 at 6:17 am