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Verbal NDAs and More Free Legal Advice – Free Joe Tuesday 10/11/11

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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.

Wanda: dear joe i have a question i have just divorced and i was ordered $10.000.00 from my husbands retirement fund acct. i am on a fixed income and i do not know what to do with this money. I was told that i should put it in my credit union in a regular acct. i was also told i was gonna get fined from irs if i don’t roll it directly over into a roth ira i am very illiterate and i don’t know a thing about any of this. since this was such a small amount of money and i want to save it i am only 49 yrs old without any reirement of my own please if you can assist me on what i should do i would greatly appreciate it.

Joe Escalante: You need tax advice more than legal advice. You should ask around. If the person that does your taxes now can’t handle this stuff, get a new tax person.

Annemarie: Dear Joe,
We are a couple that moved 6 months ago, we walked through the house which is aprox 75 years old and the landlord said it was spotless except for the rugs where worn and they where ripping them up. They gave us back the deposit. After a month my wife was followed from church confronted at the grocery store, we ruined their floors. 2 times there was water damage due to the water dept outside our house. My wife walked away. I received a bill the other day from a lawyer for 4500.00. As far as I am concerned the contract was closed when we received the deposit back any answers??

Joe Escalante: They are probably going to take you to small claims court if you don’t pay it. I wouldn’t pay it. I would send a letter denying their claim. If they file a small claims case, it’s very informal. Just bring in all the evidence to state your case and hope for the best. Good luck.

Brad: I am a medical massage therapist, and I am going to have to deal with lawyers when it comes to insurance cases. What should I look for in a lawyer for myself and one to recommend to my clients?

Joe Escalante: That area of the law (personal injury) can get very sleazy so make sure you are working with someone that has good references and is not under any kind of disciplinary action by the state bar. That is easy to discover at the state bar’s web site. It’s very helpful to talk to the lawyer’s former clients.

Patricia: How much is to retain a Probate Attorney? Mom didn’t leave a will and owns a house. The only heirs are me and my sister.

Joe Escalante: In some states it is what the court approves. It can be as high as 5% of the estate’s value. If it’s an hourly rate it’s going to be at least $250 per hour. I charge $300. It takes many hours to complete the process. That is why it’s great to put property in a trust to skip probate and leave the property to who you want.

Patricia: Since I had power of attorney before she passed, would that make the house mine or wouldn’t it matter?

Joe Escalante: The power of attorney would expire upon death, normally.

Ervin: Dear Joe, I just formed a non-profit in CA. I’m in the process of filing to getting federal tax exemption. I am having a fundraiser in the next month. I read that getting tax exemption will retro activate donations. If I read that correctly, what is required of me regarding receipts for people so their donations are tax-deductible? Thanks!

Joe Escalante: This is tax advice that you are best getting from a tax pro that specializes in Non Profits. If you don’t have one, get one. This gets very tricky and you have to stay above board.


Joe Escalante: Yes!


Joe Escalante: The estate has to settle these debts. You don’t just walk away from them or the creditors will sue the estate. They have a right to recover what is owed to them. However, you may be able to settle for less if you have a good lawyer or know what you are doing.

Chris: If someone has 13-15 new product ideas…. Is there a way to patent/protect each idea without doing an individual patent for each product? Thanks =)

Joe Escalante: No.

Cathy: Can a convicted felon be guilty of constructive possession of a firearm on an admission if there is no gun?

Joe Escalante: If he’s got a bad defense attorney, I suppose.

Karen: My younger brother died prematurely -with a little help and while he was on death bed was robbed by the person that aided to his death ,there was a state police investigation on this person and issue investigator felt there was enough to go to court but prosecuting att: said he would not do it becouse “it was a family matter” is there anything we can do as far as getting justice -am feeling like the law only protects the lawless.

Joe Escalante: They have broad discretion on who to prosecute. The steps to complain are going to their boss, their bosses boss, then elected officials to apply pressure. But when it comes down to it, it’s their call unless there is some corruption like conflict of interest.

Theresa: If your Will does not provide for a executor to your estate does the state (CA) appointment one?

Joe Escalante: The court will appoint one.

Michael: I need my Facebook page name changed from Gig Dates Network to simply Gig Dates. I have over 100 likes and I can’t change it myself. I have tried to contact Facebook a number of times. How do I get Facebook to respond to my request and to stop redirecting me to the Help section? Joe please help. I have been at this for 6 months! Thank you!

Joe Escalante: ‎6 months is too long to work on this for only 100+ likes. I’m not a facebook expert, but I consider myself a “what is and isn’t a waste of time” expert.

Deanna: Hello Joe, My son’s father has been gone since 2007. I am a 45 year old single mom, concerned that Mikey’s alcoholic, physically abusive father could get custody if something happened to me. He sends me intermittent hateful emails, the latest states that he lives in Haiti now. I work full time go to school full time and make 16,000 a year…I cannot afford an attorney. My brother and his wife are very close to my son and I, and I would like to designate them as Mikey’s guardians should something happen to me. What should I do??? Thank you

Joe Escalante: You need to focus your energy on “terminating the father’s parental rights.” If what you say is true, this may be in the best interest of Mikey. If the court agrees with you, they will grant it. It can be done without a lawyer. It will be hard but it can be done. It would be better to find one that will work with you however.

Andreas: If you have shared a software idea with someone over a meal. The other party was not presented with a NDA. But the other party verbally agreed to not disclose this idea to anyone. How binding is it to send an email hours or days later? Thanking for dinner and also to remember to keep our discussion private. Almost as a post-defacto NDA.

Joe Escalante: That is a good piece of evidence. If it ends up in court and he denies there was a verbal contract to keep the secret, the court will want to know why he didn’t deny it when you sent your follow up email. Follow up emails are great! Make sure you leave all the send / receive info in you computer so you can prove it’s genuine.

Elaine: Hi Joe, I was part of a cell phone family plan. I was paying auro-pay, with my checking account, with my roommate. I moved, we closed the plan several months ago, and set up individual accounts. I told the phone company to take my name and checking account info off the family plan, and I gave them the info to pay for my new account.
well, for the last five months, they’ve been using my checking account to pay both bills! The bank says that since it’s an automatic payment, I have to have the phone company remove the autopay from our oriiginal account. (they DID take my name off the account)
I’ve tried calling the phone company many times……when I finish the prompts, and put in the other person’s phoe number, it hangs up because I’m not calling from that phone……..H E L P??

Joe Escalante: One thing that might get their attention is to find out from the secretary of state who the agent of service is for their corp in your state and file and small claims case against them for the maximum amount. They will have to send a representative to meet you in court that day. I’ve seen this last resort technique work very well for plaintiffs.

Kim: Starting on setting up my own business. Its a franchise, should I start my company as an S Corp or C Corp… tax advantages??

Joe Escalante: Congratulations but the best legal advice I can give you is to not give you tax advice and suggest you hire the person who is going to prepare your tax returns to guide you. This should be done very early in the new business process.

Yvonne: Dear Joe, my father did not leave a will and the house is split between my mother and sister and myself. I am caring for my mother in the home and she needs some assistance and the equity could help. can we remove my sisters name off the house and how? live in Atl. GA.

Joe Escalante: She can gift her portion to you, or sell it. Or you could ask the court for a “forced partition sale” if she won’t cooperate. That’s how you sell property you co-own if your other co-owners wont play ball.

Rich: Hi Joe, I’m getting ready to set up my LLC and I wonder if there is a big difference running it with my personal SS# or getting an official Business ID #? My business is a small web design and affiliate marketing resource company. I live in Indiana

Joe Escalante: Your LLC is entitled to a new tax I.D. #. I would get one. It keeps it cleaner. However, advice from the tax pro that is going to prepare your tax returns is critical at this stage.

LegalZoom: That’s it for Free Joe Tuesday, folks! More free legal advice is coming up on Friday, so be sure to join us then to post your questions!

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October 13th, 2011 at 6:01 am