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My Father Died Without a Will. Now What? And More Free Legal Advice – Free Joe 7/17/12

with 6 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.

James: My father passed away and he has a couple acres and a car my mom wants to put in my name, but my father didn’t have a will so I not sure what to do. I heard the words probate but not sure which direction to go. Any suggestions?

Joe Escalante: Probate is the process all his property must go through. It cannot be legally transferred without this process. This protects creditors who may have let him borrow money and maybe he didn’t pay it back yet. The probate process also protects the heirs from having some jackass come out of the wood work down the road and say that the car is his or something. Everybody gets fair warning in the probate process, and then the disposition of the property is final.
Talk to a probate attorney in your state. They will pay themselves out of the proceeds. It’s a percentage of the estate.
In California it’s 4% of the first $100,000, and roughly 3% of the next $100,000, and so on. If you are really ambitious, you could do this yourself by purchasing the Nolo Press book on probate. To find a good probate attorney in your area, click below:

LegalZoom: Here’s the link, James:

You may also want to check out our legal plans:

Leanne: Hi Joe,
Once someone has been sentenced, can the inmate be able to reclaim their vehicles impounded for evidence, no longer needed? Does the holding agency have to release and if so, how long does an individual have to reclaim them and what is the process?

Joe Escalante: For federal crimes, The U.S. Marshals Service administers the Department of Justice’s Asset Forfeiture Program by managing and disposing of properties seized and forfeited by federal law enforcement agencies and U.S. attorneys nationwide. Each state also has forfeiture programs for state crimes. In California, generally you have 30 days to respond to the notice of forfeiture and file a claim to get the property back. There are characters called “forfeiture attorneys” that specialize in this.

Dave: What are the basic legal documents…besides a will, of course….that almost everyone should have?

Joe Escalante: If you own a home, and have children, you should consider placing the home in a trust so it can avoid probate and pass directly to your heirs. A trust usually contains a will within it that takes care of possessions and assets that for whatever reason are not in the trust.
If you own a business, you need a D.B.A. Tax I.D. #, and perhaps a partnership agreement, LLC, or Corporation, depending on what your tax lady says.
Then there’s insurance, which is kind of a legal document. I get my insurance advice from Dave Ramsey. He seems to have his head and heart in the right place.

Darla: When someone moves from your house how long do u have to wait befor u an file for an abandond title on something or is that not leagle anymore jus wonderinh???

Joe Escalante: I’m not sure I know what you are mean. Perhaps you talking about the principle of adverse possession? That is where, in some circumstances, you could claim someone’s abandoned land. However, you would have to live in it, and exclude all others for a certain period (which would vary by state and current case law), AND pay all taxes on the property. Then you could sue for adverse possession. Good luck!

Darla: No I was meaning. Like vehicle/ snomobile as in posessions left on my property!!!

Joe Escalante: Each state has different rules for abandoned property. There are literally 50 different rules. You have to search for the law in your state. You will probably find it through Google. Here’s an old site that may or may not be accurate for your state any more but it’s a start:

Lou: If one takes a person to “small claims court” loses and then appeals and gets a jury trial, should one be “armed” with a lawyer for the jury trial? Is fraudulent inducement something one could take another to small claims court?

Joe Escalante: I don’t know of a small claims process that ends up as a jury trial. In California, my experience is that a plaintiff cannot appeal, but a defendant can. And it is basically a trial de novo without a jury. Fraudulent inducement is a fine cause of action for small claims. If the judge believes it happened, and there are certain and provable damages, you have a case. However, small claims judges are all over the map, so it is unpredictable at best.

Pam: If my husband and I put our properties’ deeds to TOD to our children, does that negate the WROS on the deeds currently?

Joe Escalante: For clarification, you are saying that you have deeds that say they Transfer On Death to your children. Then you say the deeds also have language that says you own them Without Rights Of Survivorship.
I would have to look at the deed to be able to answer this. Have the deed looked at by an estate planning attorney in your state. That should cost 3 to 5 hundred donuts, but since you are complicating things, you should pay it.

Pam: Our deeds currently say with rights of survivorship but we would like to make them transfer on death to our children to avoid. Probate. My question is to do that we each would have to let them transfer on either of our deaths to the children and not to each other? Or only if we both die?

Joe Escalante: The only advice I could offer is for you to place the house, and other property you want to dispose of in this manor into a living trust. That’s what everyone else does. It seems to be working.

Mark: Question for Joe: When you’re an LLC owner and also its sole proprietor, does it matter which state you’ve registered the LLC in? In the ‘sole proprietor LLC’ scenario, it seems like the IRS taxes you based on where you physically reside & did business, rather than which state your LLC was formed in.

Joe Escalante: I think you are referring to a “single member LLC.” You are right about where they are taxed. For example, many people think you can get a Nevada LLC and not pay state taxes because Nevada doesn’t charge them. However, if your business isn’t run out of Nevada and run out of California for example, you are going to be taxed by California, which has high taxes, as a foreign LLC. You can’t escape it. In fact, California has a minimum state tax of $800 which shocks many people with small or dormant LLCs at tax time.


Joe Escalante: Because that is not in the best interest of the child or the state, I’m going to say no. If you join the Army they get you, so I don’t see why they would stop if you go to prison. It doesn’t mean you’re going to be able to pay, but I can’t see any state giving you a break on that, sorry.

Shirley: how can i go about seeing my two grandsons? my son, father of the boys is in prison and the mother got married and refuses to let me see them. his oldest has his last name and he does pay child support. i got to see vinny up to he was three years ago and now he will be 7 in august and it will 3 years in february 2013 that i havent seen him. i’m his paternal grandmother. thank you. this breaks my heart.

Joe Escalante: Most states don’t don’t recognize grandparents rights. In Ohio, however, I believe you can petition the court for visitation rights and if you can establish that you have in “interest in the child’s welfare” you may get some court ordered visitation. Talk to the clerk in the family law court where the kids are supervised and tell them you want to file this petition, or get a family law attorney to handle it for you.

Ricardo: Can a Non-profit organization become FOR PROFIT? How do I do it?

Joe Escalante: Makes no sense. Dissolve and re-incorporate. However, Non profits can earn profits, they just can’t distribute them. They have to keep them in the company and only use them to further the goals of the non profit. Hiring new employees and getting a new building, if kosher, are among the things you could do. Check with a tax pro on non profits to be on the safe side when you are contemplating this kind of thing. You don’t want to be Wesley Snipe’s cellmate.

Sonnie: I live in cali. And I wont to open a marijuana clince how can I do that

Joe Escalante: Dude, you need to talk to some people who have done it. Some do OK. Some go to jail. Some lose everything. Some get shot.

Rick: I have a question for Joe. I have my company’s name trademarked for use on the web. I have seen more and more lately that other websites are using the name in their search terms and keywords for their websites. I am trying to determine if I have the legal right to send them a cease and desist letter, but only want to do so if there is substance behind my claim. any advice?

Joe Escalante: You can send them one, and sue them. However, if they are not violating Google’s ad policy, that is one indicator that you will probably not prevail in court. As far as I know, Google (I know there are others) allows usage of your trademark by others as long as the landing page is legit, and the site is not dedicated to criticizing your mark, and some other limitations.
My experience with the Google ad people has been very negative. They have dum dums working there and are very inconsistent with their policies to the point of being crooked.

Shelia: My nephew is incarcerated in MI and wants me to publish his short stories in a book. Would this be legally ok?

Joe Escalante: Yes. The Son of Sam Laws have been struck down as unconstitutional in most cases. If there is a civil judgment against him, however, any proceeds may have to go to a state or county victim’s crime fund. However, no one can stop you from telling the story.

Beth: We own a small handyman business, do not advertise we are licensed or insured. Have a handwritten, signed “contract” for renovations to homeowners master bathroom. We took deposit/draw from homeowner. We began demolition; had another job to complete and missed working on his job a few days…no clause stating working daily ! We get a call from homeowner he want to cancel job and wants his money back. We have 90% of demolition done on his property. Does he have any recourse? Do we owe him anything back ? I am just wondering his legal recourse

Joe Escalante: I couldn’t tell from our wording whether you are, or are not licensed. If you are licensed, the licensing authority would cover this, and if you did not use approved contract language, you are screwed. If you are not licensed, he may be screwed for using unlicensed contractors. He has less protection in that case.
A court may award him only $ for unfinished work, and make him pay for work already done, otherwise he gets a windfall and he doesn’t deserve that.
Make sure you send him a certified letter saying you are ready and willing to complete the work immediately. That will weaken his case if he refuses.

Dan: Hey Joe…If I own 25% of a company and i have a partner who owns 75%, to what extent am I legally liable for the company’s debts. Also, i am not listed as the guarantor on any credit lines or loans and we are incorporated? Thank You!

Joe Escalante: If I’m a creditor, and you are duly incorporated, I can only go after the assets of the corp to recover my losses. If I pierce the corporate veil, by permission of the court because maybe your corp was faulty in some way, then maybe the percentages of ownership would matter, but even then, I’d go after both and let you sue each other according to what your percentages were. I don’t think it would matter to me. You’d probably be on the hook for all of it in that case.

Margie: Just received written judgement on child support/ back support. The judge made a mistake and is ordering the the wrong person to pay the back support. Will this be able to be changed? We live in Indiana. The judge said somethings can’t be changed ie..when the back support was all paid up from a previous date. The judge said no one could come along and change that.

Joe Escalante: If a mistake was made, you petition the court to correct it but you must supply facts and evidence to support your case.

Dave: What is the process and typical cost of putting a home in a trust…and are there any considerations to acknowledge if it is a possibility I’ll sell it?

What about directives, living wills, and power of attorney? I’m assuming you encourage everyone to have these, yes?

Joe Escalante: To answer the first part. A trust can sell a house just like an individual can so I don’t see any issues there. Regarding the cost, it depends on who’s performing the tasks. Legalzoom’s costs are pretty easy to figure out. If you can get a price up front from an attorney, good for you.
The second part of your question I can’t really help you with. I don’t recommend any of them necessarily and I don’t speak for Legalzoom. I’m a private attorney just doing what I can to give some short and sweet legal advice in limited situation.

James: Im in a loan situation with the FSA (gov) is it legal for them and or agents (appraiser ) to give out chattel and value of said chattel to anyone who asks and or to propose to land lord to start an eviction and offer to sell chattel at reduced rate for starting such an action ?

Joe Escalante: I haven’t chattled since law school, sorry.

Niccollo: If someone had a 1538.5 granted by a judge, are they entitled to any financial damages in a civil lawsuit because of police misconduct? Thank you…

Joe Escalante: What are the damages?

Niccollo: loss of wages from my former employer, loss of apartment, and I was going to recieve my A.A. in Business this month but that also got delayed. There are also a number of other minor financial damages, but those are my major concerns at the moment. Thank you…

Joe Escalante: These may not meet the standard of “certain and provable” to the point where you would be likely to recover much, but I could be wrong. Here’s how you find out. You go to a plaintiff’s attorney and if they will take the case on contingency, you have a case. If not, you don’t .

Kathy: My niece’s father just passed away on Sunday. He was receiving income from a property along with his brother and sister. How can my niece find out if his portion of that income now passes down to her? It was from a Trust set up by his step-mother. Is there a way to get a copy of the Trust, there is some difficulty communicating with the other parties.

Joe Escalante: Go to the court handling the probate and tell them you want to look at any public documents in the probate file. Once you have the case number you can follow the proceedings from the County’s web site, most likely.

Nicole: Hi Joe. have a rental property that is under water and not wanting to really hold onto it. i have a renter in currently. do i have any options for short sale or foreclosure that won’t hurt me in teh long run? condo is in my name. husband and i own a home jointly. just wondering what to do.

Joe Escalante: You need to work with your lender on this. There are no legal issues other than those indicated in the language of your mortgage agreement, to which I have no access. In general, if your lender agrees to a short sale, it is legal. Will it hurt you? It’s better than a foreclosure for your credit rating if that’s what concerns you.
You should also talk to your tax lady.

Chuck: If a wife has the husband served with divorce papers and is being physically abused can the husband then serve the wife with court ordered marriage counseling in Kentucky?

Joe Escalante: No one can be forced to walk into a counseling session. However, Kentucky may offer some bonus if one does.

Anibal: Got a ? Would you say it’s fair for someone with no prior record or arrests & no history of mental issues to be given a 6 month program for stalking as punishment for a misunderstanding involving an ex.

Joe Escalante: Not necessarily, although that’s what defense attorneys get paid for, to get better results, or convince you that what you got was fair.

Donna: If I put in my will that I am selling my house to my nephew for $10.00 will he have to pay taxes on it thank you

Joe Escalante: That sounds like an effort to avoid paying taxes. For many reasons, I don’t answer those. Please talk to your tax professional.

LegalZoom: Attorney Joe Escalante will be back on Friday to answer your legal questions. Join us!

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July 19th, 2012 at 5:41 am