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Last Wills vs. Living Trusts and More Free Legal Advice – Free Joe Friday 9/23/11

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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.

Tom: I have been paid at a full time job and have received a 1099 .I punch a time clock and I am required to work a full 40 hour week, year round. This is my only source of income.
Can I hold the employer liable for the taxes.

Joe Escalante: Often companies will make up their own definition of what an independent contractor is and that is very foolish. The law is pretty clear on this. If your boss chooses your work time and tells you when you go to lunch, and provides the tools/equipment for your job, you are not an independent contractor.
If you are ready for an adverse relationship with your employer, you might want to start with a claim with the state labor commission.
If you didn’t get state mandated overtime, lunches, and breaks, you might have a decent lawsuit on your hands. If they treated others the same, it could develop into a major class action suit. Talk to a lawyer in your area. Check with Attorney Connect.

LegalZoom: Here you go, Tom. Check out Attorney Connect here: http://attorneyconnect.legalzoom.com/

Amber: If a new business with the same name applies for a trademark days before the old business that has been established applied, who’s entitled to the trademark?

Joe Escalante: The business that was using the name in interstate commerce first will be the one entitled to protection form a registered mark.

Rod: My wife was laid off from her job almost two years ago. Since then we have been struggling to maintain two mortgages. We are current on all our bills, mortgages, and car payment. Queston: Legally what are my options to rid ourselves of one one of our houses. The house in question is not worth what we paid for it 5 years ago. If we walk away what are the consequences. Should we look at short sale? Bankruptcy? Thanks for your helpl with this.

Joe Escalante: Legal advice wont help you much here. A short sale is preferable to a foreclosure in all cases in my opinion. If you can arrange that, go for it. Bankruptcy is a last resort.

Robbyn: Hi, I have a question for FreeJoe. It concerns the medicaid lookback period in Florida and it’s impact on property. We own a modest home in Fl that we live in and a small inexpensive cabin in the mountains which we will be attempting to sell in the spring. We are considering purchasing another smaller home or mobile home in Fl through VA to live in and then rent our current house out. Our reasoning is that upon our death our 2 adult sons would each inherit a home to live in. (they have bad credit and can’t qualify for a home mtg). I am in my 50s, my spouse is 77. Could you tell me how this would impact our megar estate and how it would effect the medicare lookback period in the event one of us (DH) were in need of nursing home care a few years in the future. Should we put our assets in a life trust or just have a will?

Joe Escalante: My understanding of the medicaid look-back process is that any transfer for less than market value within the 5 previous years is going to be used against you. If that doesn’t work for you, my advice is to get a consultation with a Florida estate planning lawyer and see what other options you might have. A trust isn’t going to solve this problem, although it solves others, like avoiding probate.

Sherri: I have my custody case coming up on Monday. My ex and I have both filed Pro Se, but recently I suspect he may have talked to an attorney. Can he show up at court with an attorney after fiing pro se without my knowledge? I am just curious how that works.

Joe Escalante: Generally, to represent your spouse in court, the attorney would have to file a declaration stating such. Declarations generally require notice to opposing party.

David: I own a mobile home with my father that he is living in..im living in another house….what happens when he dies? does the mobile home become mine 100% or am I gonna have other issues to deal with? I am the one that bought the mobile home but had to put his name on the deed, as an owner had to live in it according to the lot owners.

Joe Escalante: Depends on the manner of ownership. If the deed lists you as joint tenants with right of survivorship, it will automatically pass to you 100% upon his death. If it’s “tenants in common” typically his share will pass to whoever is his legal heir, or whoever he leaves it to in a will. You want to avoid this. Check the deed.

Bill: Can you be fired for filing Chapter 13 Bankrupcy?

Joe Escalante: That depends on if your employer could show that your job depends on you not doing things like this. Like if you were one of Dave Ramsey’s debt counselors and you filed for bankruptcy, I’d fire you. Who wants to be counseled by someone that filed for bankruptcy. Would this be an unlawful termination. You might say yes. I would say know, you could file a claim with the state labor commission and we’ll duke it out.

Bill: So the Gov’t gives us a fresh start and you’d take it away

Joe Escalante: In the above hypothetical, there are two possible scenarios. One allows a private citizen to decide the qualifications to provide debt counseling in a company that he owns and needs to sustain to feed his family. Another scenario, would be for the government to step in and tell the private citizen what kind of employees they can have to provide the services they offer. You could make arguments for each one depending on your perspective.

Alicia: We are married and doing a living will … All our family is outside de US (to take care of our kids in case we both die)… Do we have to do something else besides describe exactly who is going to take care of them and give a copy of our living will to our family ? Thanks a lot!!!

We are US citizens…

Joe Escalante: My understanding is that a Living Will is more of a medical directive.

Alicia: Sorry Living trust… sorry

Joe Escalante: The court will ultimately have to approve this as being in the best interest of the children but you are doing all the right things to get the ball rolling. One thing you could do is to make sure that your trust is properly funded to cover the expense of transporting the kids and all that crap.

Scott: I have my provisional patent how long do i have until i must get my utility patent? And how much will my utility patent cost me?

Joe Escalante: You have a year, and it will cost you quite a bit if you use a patent attorney, which is advisable. The fees are about $500 or so. An attorney will cost $250 to $500 per hour.

Victor: Hi, Joe
Not sure which patent i need.. I have an idea of improving and adding a function to a product that people use already. Please help
Thank you
Victor

Joe Escalante: That’s not really enough info. If you don’t want to describe your invention here on the internet, I don’t blame you. If you read the materials provided by the USPTO, you can figure it out and keep your secrets. http://www.uspto.gov/

Lisa: Hello Joe i would like to find out how would go about getting a file that was kept on me in the orphanage i was in in the 50′s in europe? being trying to find birth parent’s for a long time and i need this to help me on my search. would this have been given to my adoptive parent’s when i was given to them? thank you for your help mean’s so much to me.

Joe Escalante: I can’t imagine a country or adoption agency that would hand over a baby without the birth certificate but that would be governed by the laws of that individual country.

Gina: Hi Joe. Is a Living Trust document legal and binding if it is Nortarized but not registered with the County? If yes, what is the reason you would register the pkg. with the County?

Joe Escalante: If you are talking about real property that is transferred into a trust, if you don’t register that transfer with the county, it will not be a valid transfer of property.

Michele: My mother just passed a week ago. She lived with me for the past 14 years and did not own much, no real estate, car, or the like and there is a small insurance policy listing my brother, sister, and myself. My question is, her bank account (I am on this account) …there is a small balance after bills and an IRA listing me (only) as the beneficiary. Do I legally have to cash in her IRA and split the balance of her bank account 3 ways? Do I need a lawyer? There was no will.

Joe Escalante: That depends on the kind of bank account we’re talking about. If it’s the “payable upon death” kind, with you listed as the beneficiary. There is a very strong argument that this money is yours automatically. It’s like a will, naming you. If you were just a signer on the account, it would then be different. Check out the details of the account. If it’s a small balance, a lawyer would eat it up quick so you may be better off just dividing it up regardless. The IRA should pass just to you as the beneficiary. If there was no beneficiary, the IRA would pass through probate and be divided equally, but there is a beneficiary, that has to have meaning.

Kimberly: My son passed away at the age of 24,,, I am being threatened of a lawsuit for a MMA Titel Belt my son won but didnt own. It was given to me before he was killed and I had no idea it didnt belong to him. Do I legally have to give it back?

Joe Escalante: It sounds like your son may have given you something that he never owned if it was the kind of tittle belt that sits with the champ until there is a new champ. If these guys had any decency, they would award that belt to you to memorialize your champ of a son, but let’s be real. They’re in the kick each other in the face business, so what can we expect? Legally, your son may have had a duty to keep that belt safe under the rules he agreed to. However, what are these rules? You could ask them to show you the rules.

Scott: Do I have the right to file for custody of my son in another state. Other than the one he was born in,… ? If so, do I have legal custody until a hearing… ?

Joe Escalante: You can file and if it is in the best interest of the child, the court should grant it. You have legal custody of your son until a court decides you do not, or if a state agency (or law enforcement officer) finds a reason to take action pending a hearing for some emergency purpose.

Brooke: Hi Joe,
We have two small children and I need to have a will set up just in case the unthinkable happens. Where should I start? Also should I leave our estate to the kids or to the chosen caregiver for the kids if we die.

Joe Escalante: Sounds like you would benefit from a trust. You put your property in there and detail how you want it managed for the children, and who is to manage it, and alternate managers, etc. It’s quite wonderful. And heirs don’t have to wait though expensive and lengthy probate to receive the benefits of the property you are leaving them. See the link below and check it out.

LegalZoom: Here you go, Brooke: http://www.legalzoom.com/living-trusts/living-trusts-overview.html

LegalZoom: That’s it for Free Joe Friday everyone! Thanks for joining us and a big thanks to Barely Legal Radio w/ Joe Escalante for answering your legal questions. Have a great weekend and come see us next week! http://zoo.mn/FreeJoe

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September 27th, 2011 at 6:07 am