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Probate, Paying Down the National Debt, and More Legal Advice – Free Joe Tuesday 7/26/11

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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.

Robin: can a ex-wife sue for personal and real property of the ex-husband. owned outright by the ex-husband. Also, there are 2 children born while married. since their divorce both parties have remarried and are still with their most resent marriage partners. Is the ex- wife entitled to anything after legally divorced for at least 15 years. And the ex-wife never contributed to any of his property. Also, the ex-husband is now dieing. Will his now wife have any riights to his personal and real property when he passes. She still resides with him.

Joe Escalante: There’s marital property, and there’s non-marital property. In a divorce, only the marital assets get divided. However, sometimes a spouse will trade some non-marital assets for some marital ones. Any deal can be made, but generally, your non marital assets are not at issue in a divorce settlement.
With regard to whether an ex-wife is entitled to anything after 15 years, that would depend on the facts of the case.
Current spouse may or may not inherit the dying spouse’s property. Depends on if there is a will or not.
Sounds like someone needs to move on and worry about something else, unless we’re talking about piles of cash.

David: I’m divorced with two minor children and joint custody. My parents want to do a Transfer on Death title to their 7grandkids- including my two kids. Must I involve my ex in setting up a guardianship for our kids to sell or otherwise deal with ownership of the house?

Joe Escalante: Probably since you don’t have full custody. But read the custody order and that will determine what you are required to do. If it’s silent on the subject, she could hall you into court saying you violated the order, but she would need to show some harm done to her rights. She may object to the guardian. It could get messy.

Marzell: Greetings Legalzoom family,

I was wondering what is the best procedure or the steps that I should take in order to receive a line of business credit for my LLC. without having to sign a personal guarantee?

I thank you all in advance for your help in the matter. You’re very much appreciated.

Joe Escalante: Corporate credit questions are better answered by bankers, not lawyers. Once you have an LLC, it’s time to talk to bankers to find out under what terms your LLC may borrow $.

LegalZoom: Hi Marzell, Check out these two recent articles from our newsletter about building business credit too:​usiness-management/startin​g-your-business/how-avoid-​putting-your​usiness-management/startin​g-your-business/business-c​redit-101

Brummett: Can a HOA carry money over in a reserve fund without property owners approval if they are a non-profit organization?

Joe Escalante: Generally, the documents (bylaws, CC&Rs, or whatever your HOA calls them) will spell out the limitations regarding authority to do such things. If the authority is not there, it may be challenged.

Patrick: If you have a Chapter 13 but are unable to pay your trustee what can happen. Is there a way to re-negotiate a Chapter 13

Joe Escalante: You can work with the Trustee when you are late, but if it gets excessive or if you are not paying, it could be converted into a Chapter 7, or your bankruptcy could be dismissed. All your bankruptcy protections would disappear at that point. Work with the Trustee.

Jean: Question is there any thing illegal about people sending money to White House to help pay off debt. we’ve sent money to other countries how does that work?

Joe Escalante: Actually, you can do this. You send your money here:
Gifts to the United States
U.S. Department of the Treasury Credit Accounting Branch
3700 East-West Highway, Room 622D
Hyattsville, MD 20782
Tell them Joe sent you. This account was evidently established in 1843 to accept gifts, from individuals wishing to express their patriotism to the United States. Money deposited into this account is for general use by the federal government and can be available to reduce the debt. Are these gifts tax deductible? It would suck if they aren’t.

Linda: f u r under 59&1/2 & withdraw from your IRA can u have early withdrawal penalties by IRS & FTB of CA waived if u put it back into IRA within a certain amount of time? Someone told me u had 60 days to put it back with no penalties.

Joe Escalante: I don’t know Linda. But this is a tax question that you should ask your tax professional. It’s always important to have a good tax pro.

Tiffany: I am wondering can I go to probate court and file papers for my grandfather’s estate even though his two daughters are still alive? It has been almost three years since his death. His daughters took everything of value in the home he had and I have been paying the housenote and taxes on the house ever since his death in Oct 2009 and I am his grand-daughter. They are no longer around or in contact with me or the house.

Joe Escalante: Sounds like there was no will. So go to the probate court and file your objections to the disposition of the property. You should do whatever you can to clear the title of that property. Go to the county recorder and ask them the procedure for transferring the title to you, since you had been paying the note and the taxes. It’s going to be next to impossible. If it is impossible, you can always sue the daughters for unjust enrichment because they benefitted from all your payments, and you got nothing. Good luck

Ann-Louise: i have made some beautiful mosaic pieces of sports team logos. i have NOT sold these, just given as gifts or donated to charities. since each piece is a unique, hand-made piece of art, if i sell them, do i need to get the team’s permission?
these are not mass produced like bootleg CDs or t-shirts.

Joe Escalante: Arguably what you are creating are called “derivative works.” Sometimes you can use the copyrights of the original author without permission, sometimes you can’t. It depends on the nature of the use. Google Fair Use Doctrine, then call my show. Go to http://www.barelylegalradi​ for info on how to get your question answered on the show. We can spend more time. You can also just enter the question there by clicking “email joe”

Meghan: My husband and I are partners in an LLC that rents film gear to productions. At times, we rent out our personal camera through our LLC. How can we correctly reiumburse ourselves for the LLC’s use of the camera?

Joe Escalante: This is kind of a tax question so you should get your tax pro on board with procedures like this. From a legal perspective, things should be done at “arm’s length” to protect you from laws against shenanigans.

Sheree: I used legal zoom to set up an LLC with just my husband and I as owners. We want to add two more people as owners (each @ 50%). The new breakdown will be: 2@ 26% and 2@ 24%. How do we go about this? Also, we filed for a dba for our LLC, but now we want a new one. Can an LLC have more than one dba? Or do we need to cancel the old somehow, then file the new? Thanks so much!!

Joe Escalante: The LLC can own more than one DBA. You can add new members to your LLC but there are many tax implications and Legal implications so you should talk to your tax pro first and see if you should switch to a corp if you are going to be issuing “shares” like this. Then an attorney that specializes in business entities is recommended. A lot can go wrong if you don’t define the roles of the new people correctly.

Gwendolyn: How do I determine which document is right for me? Living Will? Living Trust? Last Will & Testament?

Joe Escalante: There’s a grid on Legalzoom that will clear this up for you. Read it and let me know if you still have questions. A lot of it has to do with the amount of property you own.

LegalZoom: Check out this comparison chart, Gwendolyn:​ills-estate-planning/compa​re-documents.html

Also check out the Basics of Estate Planning guide over on the Guides & Education tab:

Stuart: I have an ‘S corp. in California which you filed for me in 2007, but has never done business. Now I may have an opportunity for an investor to get it started. I am wanting to know if I can change from the ‘S corp. to a non-profit by using the same EIN?

Joe Escalante: Legalzoom has a good answer for this already. It’s possible. Read this and you are on your way:​usiness-management/startin​g-your-business/could-you-​turn-your-business

Debra: Can you sues a 501c3 and there board members for misrepresentation

Joe Escalante: Yes, in fact, this is one of the biggest dangers about being on the board of a non-profit. You can be liable as an individual for mismanagement of the entity, etc. No good deed goes unpunished.

Debra: Can u recommend a lawyer in tampa

LegalZoom: Check out Attorney Connect for help finding an attorney in your area, Debra: http://attorneyconnect.leg​

Jeffrey: Business Week is having a contest to find America’s Best Young Entrepreneur. Applicants can’t be over 25. Isn’t this age discrimination?

Joe Escalante: Sue them. How dare they?

Jeffrey: I can’t tell if you are serious??

Joe Escalante: No. Courts don’t apply age discrimination to stuff like this. If they did, a bunch of old timey actors would sue Warner Bros. for having only young people play the roles of students at Hogwarts. Get it? On planet earth, there must be a way to live our lives without being sued for nonsense. We’re not totally there yet, but thank goodness we’re close.

Marla: Is is legal for 2 people to have PoA over another, at the same time? One is mostly financial handler and the other is medical, but want to be able to cover both in case one is not around. This is in Indiana.

Joe Escalante: If the paperwork is in order, I don’t see a problem with that. Are there any Hoosiers out there that can back me up on this?

Donita: My mother lives in AZ – I live in CA. Currently she has no will, trust, power of attorney, etc. There isn’t that much to her estate – the house she lives in is in both of our names. My question is what documents do we need to have?
Also I purchased the house but had to put her name on the deed because it’s in a retirement community-I wasn’t old enough at the time. Would it be a good idea for me to have the house changed to my name only? Thanks for your help!

Joe Escalante: There may be tax implications involved in changing title. Check with your tax pro on this. Or if it’s set up as joint tenants with “right of survivorship” you will inherit all the value of the property upon her death and it wont go through probate.

Lisa: My husband and I have a small consulting business we just changed from a DBA to a LLC – I know I need to pay our California LLC tax, but do I need to re-register (& pay a fee to) the LA County tax board?

Joe Escalante: I don’t know what the LA County Tax board is but I’m leaning toward “no.” However, since I have never heard of this entity, you should call them and ask

Joe: In Cali if you’ve been convicted of a felony how do you know when your civil rights have been restored

Joe Escalante: If you are really concerned with this, a lawyer is the best route. Getting your record expunged is rare. A certificate of rehabilitation is more likely, then perhaps a pardon by the Governor. All this will take a good lawyer.

Zach: What’s the best way to protect a phrase or name that is used on your own social media sites?

Joe Escalante: You can trademark a phrase if it is in association with a product or service to prevent confusion in the marketplace. A name of a product or service can also be protected this way. Phrases are harder, especially if their common. Like if you want to protect “lowest prices in town,” forget it. Check out the new Celebrate Innovation page on Legalzoom and watch the video “what’s the difference?”

LegalZoom: Here’s the link, Zach. Click on the photo of Joe about halfway down the page where it says “Let me tell you the difference”​elebrate_innovation.html

LegalZoom: Thanks for joining us for our very first Free Joe Tuesday! Joe will be back on Friday with more free legal advice, so come join us then!

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July 28th, 2011 at 6:37 am