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With Two Sons and a Significant Other, What Would Be Fair in My Will?

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Joe Escalante

Hi Joe,

I have two children who are adults and I want to make a will and leave my home to them to sell and divide the money up into 1/3 for Brian, my oldest son, and 1/3 to my son Eric and to my significant other, 1/3 of the house when it is sold, which I want done as soon as possible when I die. Paul Hahn, my significant other, would like to have the home until he dies and I worry about my sons getting their share of the house being sold. The house is the only equity I have to leave them; besides a retirement account with Arizona. Paul has worked harder than them on keeping the house up, so what would be fair for when I die in my will? I want the boys to receive their share also. I had a son die, Justin, and Paul basically would be getting his share, which is 1/3.

– Patty Vida

 

Barely Legal Radio w/ Joe Escalante

My advice is to place the home in a living trust. When you pass, the trust will live on just long enough to divide your property according to your wishes. And the house will not be subject to the probate process that the courts govern.

You can do all the things you are talking about with a living trust. Look at LegalZoom’s living trust package.

I’ve helped several people through this after they started the LegalZoom process and most of the time, they didn’t really need my help because it was self-explanatory, they just wanted me around. It’s always great to have an attorney for advice when you need it. Especially since you have some special instructions.

However, you can do this with a will, which is the cheapest route. But it will be subject to a probate process and that takes at least a year. The court basically holds your property until they are sure, in their mind, that your wishes are being granted, and all tax and debt issues are resolved. It’s a pain.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

The advice Joe gives is general; it is solely his opinion and not that of LegalZoom. He is a licensed California Attorney with years of experience; users from other states should take care to review the laws in their own states. LegalZoom is not a law firm. This free service is intended to get you headed in the right direction, not to replace an attorney. This is a public forum. No attorney-client relationship is formed with Joe, or LegalZoom, and the attorney-client privilege does not apply. LegalZoom does not verify, validate, or confirm the advice given by Joe. LegalZoom cannot guarantee the quality, or reliability of any legal advice provide by Joe.

 

Written by Joe Escalante

March 3rd, 2014 at 10:24 am

Posted in Free Joe

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Is a Recent Unsigned Will More Valid Than an Older Signed Will?

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Joe Escalante
Hi Joe,

I have a half sister who was purposefully left out of the will (stated in the will) by my father. However, it was not signed. I have an older (signed) will that was written before he knew of her existence. Do I follow the signed will and does my half sister have legal rights in this matter? Thank you.

– Bill Rabenstein

 

Barely Legal Radio w/ Joe Escalante:

From these limited facts, I would say that the unsigned will would not be considered the true wishes of the decedent by the court. The first will would however. The rights of the half sister would be determined by the wording of the will. For example, it could say, “I leave this stuff to all my issue, equally.” In that case, she has rights. However, if it says, “I leave my stuff to Bill only and I purposely exclude any other issue, known or unknown,” then she has less rights, and perhaps none. It all depends on the language and validity of that previous will.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

The advice Joe gives is general; it is solely his opinion and not that of LegalZoom. He is a licensed California Attorney with years of experience; users from other states should take care to review the laws in their own states. LegalZoom is not a law firm. This free service is intended to get you headed in the right direction, not to replace an attorney. This is a public forum. No attorney-client relationship is formed with Joe, or LegalZoom, and the attorney-client privilege does not apply. LegalZoom does not verify, validate, or confirm the advice given by Joe. LegalZoom cannot guarantee the quality, or reliability of any legal advice provide by Joe.


Written by Joe Escalante

March 3rd, 2014 at 9:51 am

Posted in Free Joe

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How Can I Patent an Idea While I’m Still Trying to Find Capital for My Business?

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Joe Escalante
Hi Joe,

How can I patent an idea and keep it from the public while I am still trying to find capital for my business? What could I do to protect my ideas while I’m in school?

– Tiana Holmes

 

Barely Legal Radio w/ Joe Escalante:

You have to actually apply for patent protection. Once you’ve successfully filed for a patent, or completed a provisional patent application, you are protected as the “first to file” to some degree. Then you have to successfully complete the patent process, which takes time. Theoretically, your “invention” is protected from being exploited by anyone else during this process. The provisional patent application only gives you a year before you have to file for a patent.

While you own the patent, you are still protected, even if you haven’t released the product to the public yet. Eventually your patent protection will expire if all maintenance fees aren’t paid, and eventually it will expire no matter what.

However, this is what patent trolls do. They file for, or purchase, lots of patents and sue people later for violating them. It’s ugly, but usually legal.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

The advice Joe gives is general; it is solely his opinion and not that of LegalZoom. He is a licensed California Attorney with years of experience; users from other states should take care to review the laws in their own states. LegalZoom is not a law firm. This free service is intended to get you headed in the right direction, not to replace an attorney. This is a public forum. No attorney-client relationship is formed with Joe, or LegalZoom, and the attorney-client privilege does not apply. LegalZoom does not verify, validate, or confirm the advice given by Joe. LegalZoom cannot guarantee the quality, or reliability of any legal advice provide by Joe.

Written by Joe Escalante

March 3rd, 2014 at 9:43 am

Posted in Free Joe

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Should I Do a Sole Proprietorship or LLC for My Photography Business?

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Joe Escalante
Hi Joe,

I’m a photographer and planning on starting a business (professional service) under my name. I would be the only one in the business and it’s mostly just freelance stuff. Can I just do a sole proprietorship or should it be an LLC?

– Jason Landrum


Barely Legal Radio w/ Joe Escalante:

I would do this as a sole proprietorship until you have specific advice from a tax specialist about changing it to an LLC. In my state there is an $800 minimum tax for having an LLC even if you made no money that year. Get insurance though. That can provide you with the liability protection you lose by not having an LLC.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

The advice Joe gives is general; it is solely his opinion and not that of LegalZoom. He is a licensed California Attorney with years of experience; users from other states should take care to review the laws in their own states. LegalZoom is not a law firm. This free service is intended to get you headed in the right direction, not to replace an attorney. This is a public forum. No attorney-client relationship is formed with Joe, or LegalZoom, and the attorney-client privilege does not apply. LegalZoom does not verify, validate, or confirm the advice given by Joe. LegalZoom cannot guarantee the quality, or reliability of any legal advice provide by Joe.

Written by Joe Escalante

March 3rd, 2014 at 9:09 am

Posted in Free Joe

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3D Printing & A Duck’s Left Foot

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Shutterstock/Andrii Kondiuk

Shutterstock/Andrii Kondiuk

If it looks like a duck and quacks like a duck, it just might be a duck named Buttercup that has a 3D printed foot.

Over the last year, you may have noticed an increasing amount of news about 3D printing. It’s rather confusing to think about initially, but a recent LegalZoom article about the process may help to explain how a 3D printer works.

“As the machine begins laying down layers of “ink,” the software directs it to make minute changes to each layer, so that its shape begins to emerge as it gains depth. For this reason, 3D printing is known as an “additive” manufacturing process, as compared with traditional manufacturing processes that are “subtractive.” …  Building objects layer upon layer makes it possible to create more complex objects than could be achieved with subtractive manufacturing. 3D printing is faster than traditional manufacturing because no special tooling is needed. It’s economical because there is no waste and it can be done on a small scale.”

The small scale that be achieved with 3D printing includes the creation of a custom foot for Buttercup the duck. A Mashable article explains that Buttercup was born with a backwards left foot and was unable to walk properly. 3D printing company NovaCopy printed a replica of a normal duck’s left foot, then used that copy to make a silcone foot that fit Buttercup perfectly. The prosthetic foot was attached to a custom sock and now Buttercup is walking like a duck too.

The technology of 3D printing continues to rapidly improve and is becoming cheaper. A TechRepublic article says that disruption of many industries will be happening on a massive scale.

“Educators can print tools or designs in schools. Artists will have a new medium to work with. Healthcare providers can quickly create what they need in-house. Parents will be able to replace toys or broken household items in a matter of hours.”

While most of us have never seen a 3D printer in person, it seems that within just a few years, we may all be enjoying some of the benefits.

Written by Lisa Johnson, Esq.

February 24th, 2014 at 8:10 am

Posted in Legal News

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Copyright & Tweeting Your Images

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Shutterstock/Scott Maxwell/LuMaxArt

Shutterstock/Scott Maxwell/LuMaxArt

Daniel Morel was born in Haiti in 1951. As a young child he already knew that wanted to become a photographer, because he thought it would teach him to be fearless. For decades, his award-winning photographs have captured the culture and history of Haiti.

During the January 2010 earthquake, Morel captured images of the destruction through his camera’s lens. He shared the pictures via Twitpic, a free service which let him tweet his photos very quickly to Twitter. However, someone else copied his photos to their Twitpic account and claimed ownership. Eventually Agence France-Presse (AFP) and Getty Images obtained the images and dispersed them to hundreds of newspapers and websites around the world.

A Mashable article followed the resulting litigation. In 2010, Morel sued AFP and Getty Images for copyright infringement in a New York federal court.

“AFP initially argued that Twitter allows for the fair use of photographs, but Judge Nathan ultimately ruled that Twitter allows for posting and retweeting, but not commercial use of photographs posted by users.”

In November 2013, a jury found in Morel’s favor and awarded him $1.2 million dollars based on a finding of willful infringement. According to PDN Pulse, AFP and Getty are now seeking to undo the jury verdict, which they call “a miscarriage of justice.”

AFP and Getty argued that their distribution of the images were mistakes and not willful. However an AFP employee testified in court that he did not follow company guidelines when he obtained images online. Further, a juror stated that, “the jury consider[ed] Getty’s infringement willful because e-mail evidence showed some Getty employees knew almost immediately that the images were Morel’s.” Yet they were credited to someone else.

It’s up to the judge to decide what happens next. However, all businesses should think twice before assuming that an image found via social media or online in general is subject to fair use. A photographer like Morel may very well hold the copyright.

Written by Lisa Johnson, Esq.

February 12th, 2014 at 1:50 pm

Facebook Eases Privacy Rules for Teenagers

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Shutterstock/Gil C

Shutterstock/Gil C

Parents beware: Your teenager’s Facebook posts may not be as private as you think.

The largest social media network of all, with a user base of more than a billion people worldwide, recently loosened available privacy settings for posts made by youths aged 13 to 17. With recent changes to default settings, only friends of the Facebook user will be able to see his/her post (as opposed to those friends’ friends). However, that user now also has the option to expand the reach of the post but making it completely public—an option that wasn’t previously available to teens on Facebook.

“Teens are among the savviest people using social media, and whether it comes to civic engagement, activism, or their thoughts on a new movie, they want to be heard,” stated an official post from Facebook announcing the change.

While new for Facebook, the option to share publicly via social media isn’t that novel for rival networks like Twitter, Instagram and Vine, where any user of any age can create public posts. This change for Facebook is perhaps tied to not just being able to compete with other social platforms’ functionality, but also for the ad dollars being spent on them. The stakes are certainly high: industry research projects brands will spend $10 billion dollars a year on social media advertising by 2017.

This change may also indicate that Facebook is struggling to retain the 13-17-year-old demographic—coveted by big brands that want to market to them—and wants to make the network appear more open and, well, social. Recent reports indicate that daily activity on Facebook by teens is trending downward.

Regardless of which social media networks gain popularity with kids in the future, the key takeaway for concerned parents is to talk to teens about being a responsible user of social platforms, and reminding them that anything that’s posted online is going to be there forever. Being careful of what’s posted—and making an effort to review and understand each post’s visibility settings—can go a long way in protecting one’s privacy.

 

Written by Bilal Kaiser

February 11th, 2014 at 12:09 pm

Posted in Privacy

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Bill Would Prevent Employers From Using Credit Checks in Hiring

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AP Photo

Shutterstock/Ivelin Radkov

Too often in the United States, potential employees aren’t hired for positions because of a bad credit score. But some lawmakers are hoping to curb this practice with a new bill.

Senator Elizabeth Warren, along with six of her colleagues, introduced a bill last December that “would prevent employers from using credit checks in the hiring process, a practice that disproportionately hurts poor people,” according to Mother Jones. Warren, a Democrat who represents Massachusetts, aims to protect people from being discriminated against simply because of their credit reports.

In a poll conducted by the Society for Human Resource Management, it was found that 47 percent of employers use credit checks to determine if an applicant would be fit for a job. It’s also been shown that credit checks are unfair for minorities, low-wage employees, and women, who are frequently offered sub-prime mortgages and tend to be less financially stable than their ex-husbands following a divorce.

In an interview with Mother Jones, Warren stressed that a credit score doesn’t reveal a person’s character. It simply demonstrates that he or she has been through rough financial times. “A bad credit rating is far more often the result of unexpected medical costs, unemployment, economic downturns, or other bad breaks than it is a reflection on an individual’s character or abilities,” she said.

Along with support from colleagues like senators Sherrod Brown (D-Ohio), Jeanne Shaheen (D-New Hampshire), and Edward J. Markey (D-Massachusetts), the bill is also being backed by more than 40 different financial reform, community, and civil and labor rights groups. Three years ago, House Representative Steve Cohen (D-Tennessee) initiated legislation that was similar to Warren’s. Nine states have so far enacted laws that curtail employers’ rights to use credit checks in the hiring process.

Rather than looking at someone’s credit score, employers should be paying attention to applicants’ skills and resume, according to Warren. “Families have not fully recovered from the 2008 financial crisis, and too many Americans are still searching for jobs,” she told Mother Jones. “This is about basic fairness—let people compete on the merits, not on whether they already have enough money to pay all their bills.”

Written by Kylie Jane Wakefield

February 4th, 2014 at 8:28 am

How Enforceable Is a “No Overnight Guests” Clause in a Lease?

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Joe Escalante, Attorney

Signed a year lease (generic form), because of options and time crunch (closing of home vs. finding an apartment who accepts pets). Landlord’s daughter had handwritten on the lease that I cannot have any overnight guests. Please tell me how enforceable by the landlord this is (I’m a 45-year-old woman, not a teenie-bopper). If my cousin or boyfriend for that matter is too tired to drive home or the weather is bad out, I have to tell them, “Too bad, take your chances?” I am paying monthly to live here and no one is overstaying their welcome or moving in with me.

Thanks Joe, tell me something good—

– Cathy Frusciante

 

Barely Legal Radio w/ Joe Escalante

From the circumstances you’ve described, I would say that would be hardly enforceable as a material breach if the overnight stay was reasonable as you described.

What you might do is declare in a letter that sometimes you have overnight guests in emergencies and you do not consider that a material breach of the agreement. If the landlord writes back objecting, then fight it out, but that probably won’t happen.

Your landlord will most likely ignore it, or tell you it’s OK. Either way, you are going to be fine. An ignored written notification will be good evidence against her if she ever tries to evict you for it.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Written by Johanna

February 3rd, 2014 at 2:59 pm

Posted in Legal News

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How Important Is a Band Partnership Agreement?

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Joe Escalante, Attorney

Hey Joe – How important is a partnership agreement between the band before distribution and any money comes in?

– Mike Bush

 

Barely Legal Radio w/ Joe Escalante

This is way more important than copyrighting songs in my opinion. If you have a partnership agreement in place before there is a hint of success or money, you will prevent thousands, if not millions of dollars going to lawyers for fights that will occur. And I repeat, they will occur. They ALWAYS do.

Your band will always break up and fight over income and assets. Chances of songs being stolen are very small, but the band fight is inevitable. That’s why I created the band partnership agreement for LegalZoom. It’s very important.

Check this out for more info on band partnership agreements: https://www.legalzoom.com/legalforms/band-partnership-agreement

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

Written by Joe Escalante

February 3rd, 2014 at 2:58 pm