Question about filing an LLC

Additional  Information:

If I start an LLC, and the only employee currently is me, should I file it in MA or a different state?

ATTORNEY ANSWER:

You would not be an employee of your LLC. Instead, you would be a member of your LLC. You would report your LLC’s activity on Schedule C with IRS Form 1040 (assuming you will be the sole owner of the entity). All of your gross profit would be subject to self employment tax. If your are going to do business (as an operarting business) in Massachusetts, it makes sense for you to establish your business in Massachusetts. You may want to consider establishing your business as an S corporation (assuming you are a US citizen). By doing so, you would have to prepare and file annually IRS Form 1120S. You would have to pay Massachusetts annually $456. However, you would be able to massage (minimize) the self employment tax. You may want to consult with a combination attorney/CPA.

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How does the executor bill the decedent’s estate for the executor’s services?

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Can the executor of an estate bill on a flat fee hourly basis or does the executor charge for their services according to a percentage of the value of the estate?

ATTORNEY ANSWER:

In Massachusetts (unlike in Florida for example), an executor cannot charge for his/her services according to a percentage of the value of the estate. Instead, an executor should charge a reasonable hourly fee for his/her services performed as such. The executor’s fee is disclosed on the probate court account and ultimately may be subject to probate court approval.

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Florida attorney has custody of Florida Will. Testator moved to North Carolina four years ago. Where to file will?

Additional  Information:

Florida attorney prepared will and trust for Florida resident. Client subsequently moved to North Carolina. Is there a statute permitting Florida attorney to file will with North Carolina court. Second marriage surviving spouse is not personal representative.

ATTORNEY ANSWER:

If the decedent moved from Florida to North Carolina and died a North Carolina resident, then the decedent’s Florida will (assuming the decedent did not execute a subsequent North Carolina will) should be filed with the applicable North Carolina probate court.

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Do I need to register as a business in order to do freelance marketing work and accept credit cards?

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Do I need to register as a business in order to do freelance marketing work and accept credit cards?

ATTORNEY ANSWER:

You should not be required to register as a business in order to do freelance marketing work and accept credit cards. However, for asset protection purposes, it may make sense for you to establish either an S corporation or LLC for your business.

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LLC Question

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If I am the owner of an LLC business along with 2 other people, and discover that one of the other owners was taking money out of the business checking account with his business ATM card, can I do anything legally to him? he is an authorized signer on the checking account and we did not require 2 signatures for withdraws.

ATTORNEY ANSWER:

Did the LLC Member use the withdrawn funds for legitimate LLC business expenses? If not, assuming there is one, what does the LLC Operating Agreement say with respect to Members making such fund withdrawals? If you suspect foul play (if you think the Member stole money from the LLC), you probably should consult with an attorney regarding next steps.

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what is a reasonable fee to just update a will, power of attorney, and living will?

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what is a reasonable fee to just update a will, power of attorney, and living will when you are just changing the name of the executor of each?

ATTORNEY ANSWER:

I like to think our legal fees are reasonable, so I will answer your question based on what my firm typically charges for such documents.

An update to a will is typically done through a codicil. We typically charge approximately $125 for a codicil. However, for just changing the name of the executor, we would probably charge approximately $75 to $100 for such a codicil.

Unfortunately, to update a (durable) power of attorney and health care proxy (I assume you mean health care proxy and not living will since a living will is a directive to a doctor so there is no named agent), you will need new documents (even to just change the names of the respective agents). We typically charge approximately $75 for each such document.

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If I was to have a regular or a living will assigning custody of my kids to my parents, would that hold up in court?

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I am a single, unmarried mother of 2 children who’ve always resided with me. Their father doesn’t have a relationship with them (2 & 3 years old) and he lives out of state. He’s 34 and can’t support himself (lives w/parents rent free and is still struggling), much less to provide for our children and his two older kids. God forbid something was to happen to me, I would want my parents to have custody of my children. I would hate for them to be taken away from the only family that they know and sent out of state to be raised by him who has little to do with them and can’t support them. If I was to have a regular or a living will assigning guardianship of my kids to my parents, would that hold up in court? Or would custody automatically go to him because he is the biological father?

ATTORNEY ANSWER:

I recommend you have a will prepared for you in which you appoint your parents, together or the survivor, to serve as guardian of any minor children of yours at your death. If the father of your children predeceases you, assuming your parents (or the survivor) are living and fit to serve as guardian of any minor children of yours at your death, then the probate court will probably appoint your parents accordingly. However, if you predecease the father of your children, he will have the right to seek custody of them. Even though you can’t prevent the father of your children from proceeding as such with respect to physically custody of your children, through a will, you can make sure that in such case he will not have control over any of your assets at your death as guardian of your children. Through a will, you can name your parents, together or the survivor, as trustees of any assets that you leave to your children at your death. By doing so, your parents, not the father of your children, will be able to control the assets you leave to your children.

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Do two heirs have to pay 100% of the value of a condominium to the estate when we were each left 25% of all assets in the will

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My sister is the executrix of my father’s estate. He was a non resident of Sarasota Florida. Four sisters are equal heirs of the estate. The executrix listed the only Florida asset, a condominium, with a realtor. My other sister and I want to purchase the real estate for $57,000. The executrix is requiring that we pay the estate 100% of the sales proceeds, $57,000. The estate has $35,000 cash and another house in NH worth $200,000. Why do we have to pay her when the estate is liquid? We would like the $57,000 deducted from our share of the proceeds of the estate. There are no mortgages/debts. Is she correct in requiring us to pay the full price when we own half of the property? We do not think we should have to pay out any personal funds. Is this required by Florida law? Thanks

ATTORNEY ANSWER:

Sorry for your loss. I am licensed to practice law in both New Hampshire and Florida. I have offices in both Salem, NH and Naples, FL. I assume for purposes of my answer to your question that your father was a New Hampshire resident. I am not aware of any New Hampshire or Florida law that requires the fiduciary to proceed as such (sell real estate in a decedent’s estate to a legatee at the full price instead of at a reduced price based on the legatee’s respective share of the real estate as an inheritance). As the other attorney recommended in his answer to your question, I also recommend you work with an attorney to try to keep the peace with your siblings but to represent your interest in the proposed transaction.

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The best way to appoint a guardian for my children in the case of mine and my husbands death/incapacity?

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I’ve been researching for hours now, but everything is so confusing. My husband and I just want to make sure that our children are taken care of, but we have problems with his side of the family. We would like to appoint guardians for our children, and they have already agreed that they would do it, but from what I’ve read my husbands parents could petition also and potentially get the children. Is there any way to make sure that the children go to the ones we want them to go to? Also, we have a large amount in life insurance and retirement, plus our belongings. What would be the best way to make sure that our guardians we chose can use these resources to care for the children? Any information would be great! Thank you.

ATTORNEY ANSWER:

You and your husband (hereinafter collectively referred to as “you”) should prepare last wills and testaments (“wills”) in which you will name a guardian in the case where the survivor of you dies survived by a minor child as well as spell out how your assets are to be managed for the benefit of your children (for example, the surviving spouse’s will may establish a testamentary trust to hold your assets for the benefit of your children who may receive income and principal in the trustee’s discretion during the trust term). You may decide to establish a revocable trust during your lives to transfer assets to (but not your Florida residence while you have a minor child because of the respective prohibition under Florida homestead law) for probate avoidance purposes. Along with wills, you should prepare financial durable powers of attorneys and designations of health care surrogates. You may decide to also prepare Health Insurance Portability and Accountability Act (HIPAA) releases and living wills.

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I suspect that there is a trust account for me in a bank/trust company but the trustee won’t speak to me.

Additional Information:

Is it possible for me to get some info directly from the bank/trust company as beneficiary of trust ? What are my legal options? Thank you

ATTORNEY ANSWER:

Sorry to hear. If you are sure that you are a beneficiary of the trust, under Florida law, the trustee is required to provide you with information regarding the trust. I recommend you hire Florida counsel to contact the trustee on your behalf.

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Can an Irrevocable Trust get a mortgage?

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Hi, My folks just passed away and left me an Irrevocable trust. My brother is the Trustee. He wants the IRT to get a condo loan & have the condo titled in the IRT. The IRT would make all payments. My name would not be on loan or title.  Is this possible? My Credit Union said no. Thank-you for your help!

ATTORNEY ANSWER:

Sorry for your loss. To answer your question: Yes, but… Based on my estate planning and real estate experience, lenders do not like trusts, especially irrevocable trusts. Unfortunately, your brother as trustee is going to have to do some searching to see if he can find a lender who will allow you to proceed as such.

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Can I sue my landlord?

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My landlord knew there were bed bugs going around the motel and failed to notify us. I was being eaten alive by them. She told us it would be a 3 1/2 hour process and we would be fine. Then when I was at work I got a phone call saying i wasn’t allowed in my room for 2 days! And I had everything in my room. My lap top, my tooth brush, my phone charger. Then she couldn’t even promise me and my boyfriend another room to stay in but our clothes could stay in another room? Then when we finally get back in our room they told us we have to wash and bag everything again and find some where to stay next week because they have to come back and do it again. What do I do?!

ATTORNEY ANSWER:

Our law firm currently is representing a client with a Massachusetts bed bug case. I recommend you consult with Massachusetts counsel. If the landlord knew there were bed bugs in the motel you are living in and failed to take timely, appropriate steps to try to remedy the situation, you may have a case and be able to recover damages.

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I have a 25 percent share in a property in Mass which is not my primary residence nor a rental. It is on the market now.

Additional Information:

What are the tax implications when it sells? Thanks in Haverhill, MA

ATTORNEY ANSWER:

Assuming you have owned the property for over one year, and given that you own a 25% interest in income property, you would have to pay capital gains tax on the difference between your net gain(after capital improvements, costs of sale i.e. broker’s commisssion)–the current applicable Massachusetts capital gains tax is five percent (5%).

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I suspect that while my mother was in her final days while on heavy medication a new will was drawn and signed under duress.

Additional Information:

How can I obtain information from the probate officer about whats going on. I live in Florida and my mother died in California. I found out that these people that brought in a new will changed the assets from my mother prior to her death. What options do I have?

ATTORNEY ANSWER:

Sorry for your loss. Even though you are a resident of Florida, I assume your mother was a resident of California at the time of her death. If so, California law controls. You should contact California counsel to see how you can proceed with (a) claim(s) to challenge the validity of your mother’s will and any near death asset transfers and/or change of beneficiary designations. Mental incapacity may be the proper claim. However, a claim of duress (undue influence) also may be applicable. You should be able to obtain a copy of the will through the applicable probate court. Through the discovery process of a respective lawsuit, you should be able to obtain copies of your mother’s medical records. You will then be able to compare the dates of the will, asset transfers, and change of beneficiary designations to the medical records. If the medical records indicate that your mother was mentally incapacitated prior to the date she executed the will or made any asset transfers or change of beneficiary designations, you should have a case. A claim of duress (undue influence) may be more difficult to prove.

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Can I sue the company breach the contract?

Additional Information:

We signed a contract with an after school this May. Our family financial situation changed due to unemployment in August, which is beyond our control. We discussed this with the director to work out a best solution, not terminate the contract. We agreed on the phone on August that my daughter would stay in the after school program until a replacement is found. But on the first day of school, we found out that our daughter was denied entry into school without any form of advanced notice. Director refused to provide the service we have paid for.

This school is a private company. I have paid two months tuitions in advance according to the contract. I told the director I have difficulty to pay tuitions in the near future and want her to find a replacement as soon as possible. She refused to provide the service on the first day of school without any notice. When I protested her action. She said you broke the contract. But I have never sent a cancellation letter to the company.

Is this a Anticipatory breach: a situation in which future non-performance is inevitable? An anticipatory breach gives the non-breaching party the option to treat such a breach as immediate, and, if repudiatory, to terminate the contract and sue for damages (without waiting for the breach to actually take place).
ATTORNEY ANSWER:

Sorry to hear. I am a little confused regarding the facts of your case. I assume you are dealing with a company (after school program) in Massachusetts. If so, I recommend you contact a Massachusetts attorney to review the respective contract. If you did not cancel the contract, and assuming there is nothing in the contract that provides the company the right to cancel the contract in the case your financial situation changes (unemployment), then you should have a case against the company.

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In 2008, I signed a lease with a guarantor. My roommate and I never renewed it. Is my guarantor still responsible to pay?

Additional Information:

My roommate sublet his room which was against the lease, but he worked out a verbal agreement with the landlord. The subletter missed 4 months of rent and left. My guarantor is now being sued for his rent. My roommate and I never renewed the lease for 2009-2010. The landlord gave us the 2008 lease with the dates crossed out and “2009-2010” written in. Our signatures were already on it from 2008, but he made several marks for us to re-sign, which we didn’t do, and never gave it back. I know I am still responsible to pay my roommate’s half, but is my guarantor, since they only signed the 2008 lease? Also, is crossing out the dates on a signed lease and writing new ones fraud? Will that document even hold up in court?

ATTORNEY ANSWER:

I am not sure I understand how your “guarantor” fits into your case. Why didn’t the landlord sue you and your roommate first? It appears you and your roommate have a month to month lease since both of you did not sign a new annual lease. Either or both of you are responsible for paying the subletter’s rent unless the landlord agreed to collect rent directly from the subletter and relieved both you and your roommate in the case the subletter did not pay the rent. The answer to whether or not your “guarantor” is liable for any unpaid rent ultimately should be determined by the respective guarantee document. Your “guarantor” probably should meet with Massachusetts counsel to discuss the case.

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Aunt died without a Will. Does the Administrator of the Estate have to keep heirs informed?

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The court appointed my Aunts brother as Administrator. He has a lawyer who does not give any information to the 4 heirs, however when the lawyer does answer questions they are always different stories. No paperwork is being sent to heirs on property being sold. The administrator made a deal with a “buyer” to purchase my aunts land but yet have not seen any paperwork due to the fact the “buyer” is making monthly installments until the purchase price is paid off…. i thought it was a duty and professional responsibility to send heirs copies of all paperwork?? And if we ask the lawyer there have been several stories told to us and am asked “why the concern”??? is this professional of a Lawyer to an estate???

ATTORNEY ANSWER:

Sorry to hear. It sounds like the heir(s) should hire an attorney to represent his/her/their interests. For purposes of my answer, I assume your deceased aunt was a Massachusetts resident. Under Massachusetts law, real estate vests in the heirs of an estate. That means the heirs own the real estate. The heirs of your aunt’s estate have a right to information regarding the estate. It is a breach of fiduciary duty for the administrator not to provide the heirs with such information.

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Is it mandatory that your homestead be probated?

Additional Information:

When my mom died, her only asset was her home & the contents of it, of which she considered “her estate”. When she wrote her Will(it being legal), she willed her “estate” to her three children. Is it necessary that her homestead be probated? I was told a few years ago that you did not have to file for homestead. She has no creditors. She always “prided” herself on the fact that she didn’t owe anyone & she always paid on time.

ATTORNEY ANSWER:

Sorry for your loss. Assuming your mother owned her home individually (just her name was on the respective deed) when she passed away, the property needs to be probated. If the named personal representative in your mother’s will has not done so already, he/she needs to file the will with the respective probate court to proceed with the respective probate process.

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Are Florida condo assoc required to carry insurance?

Additional Information:

Our condo’s insurance policies have been canceled and/or not renewed due to run down condition of our buildings and property. Are we legally obligated to carry insurance? Located east of I-95 in palm beach co,fl. Thank you

ATTORNEY ANSWER:

Typically, condo associations require their owners to carry homeowners insurance on their units. You should review the condo documents to see what they say regarding such a requirement. Also, if the condo owners have mortgages, lenders typically require them to carry homeowners insurance on their units.

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My mom passed 2005 and dad passed 2009, he did a deed transfer in my name 3/2009 should I have any issues with siblings?

Additional Information:

My siblings are fighting the transfer what can I do ?

ATTORNEY ANSWER:

Sorry to hear about your situation. Since your siblings are challenging the property transfer, I recommend you hire a litigation attorney to defend your position. In the meantime, you should collect all of the evidence in connection with the property transfer from your father to you (Was your father mentally competent when he did so? Why did he do so? Is/are the reason(s) in writing signed by him? Is/are there (a) witness(es)?).

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How can heirs find out what has happened to an estate after the probate process has been completed?

Additional Information:

The family’s estate consisting of only a house and other small items has been sold through the probate process. The executor , a lawyer family member, as executor has not communicated nor distributed any heir shares after more than 18 months. The executor has seemingly disappeared. How can the heirs get information on what has transpired with the funds and the completion of the process?

ATTORNEY ANSWER:

I would not consider a disciplinary action (unless it is ultimately determined there has been foul play by the attorney-executor). Instead, I would consider a litigation negligence action (if it is ultimately determined there has been financial harm caused by the attorney-executor). A legatee of a will should receive his/her share of the decedent’s estate after the decedent’s expenses have been paid. A legatee of a will should receive an accounting showing the financial activity (income, expenses, assets, and liabilities) of the decedent’s estate on an annual basis. In the case of a non responsive executor, a legatee as an interested party of the estate can take legal action against such an executor (for example, a litigation negligence action). The legatee can call the respective probate court to explain to a clerk the situation and to find out the status of the estate so the legatee can decide how best to proceed.

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Husband was to pay mortgage payments on time per agreement, but has been repeatedly late, damaging my credit. What can I do?

Additional Information:

The agreement says that the husband is supposed to make the mortgage and real estate tax payments on time. He lives in the home and was unable to refinance it to get my name off.

Unfortunately, he has not been making mortgage or tax payments on time, which has resulted in a property tax lein that has hit both our credit reports, even though I haven’t lived in the house since 2008. He has also gotten 3 payments behind and recently informed me he lost his job.  He has also let the house fall into a state of disrepair.

I want to petition the court to change the order to remove him from the house so that I can get in there, get the repairs done and either live their myself or hopefully bring the cost of the house up so that the mortgage can be paid off.

Is this something I can do?

ATTORNEY ANSWER:

Sorry to hear about your situation. Are you referring to a divorce agreement? If so, do you mean your ex-husband? I will assume the answers to both of my questions above are “yes” with respect to my answers/comments that follow to your question. If you do not act, either the town through a real estate tax lien taking or the lender through a foreclosure will probably take the property. Consequently, to the extent you would like to keep the property, you should petition the respective family court to modify the divorce decree based on your ex-husband’s breach of the agreement to allow you to receive the property. However, if you receive the property, you then will have to pay off the real estate tax lien and pay the mortgage to bring it current to avoid having the property taken from you.

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Check made out to 2 people, check was cashed without my permission.

Additional Information:

I moved out of an apartment with a roommate in February. Our security deposit check was made out to both of us and the word “and” was between the names on the check and it was sent to my old roommate. He was told by the apartment complex that I had to be present to cash the check and he could not do anything with it unless I was there. It has been 6 months since I’ve heard from him and I called the apartment complex and I asked what the status of the check was and they said it had been cashed in June! They sent me a copy of the check that was sent back to them from the bank and he deposited it without signing it at all! I called up Bank of AMerica (where it was cashed) and they said it should not have been excepted at all but I can’t do anything about it.

Banking question from Nashua, NH [Read more…]

Do all wills have to be filed in the Probate Court?

Additional Information:

There is no real estate (house in foreclosure) there is an old truck, furniture and clothing, etc…

Probate question from Boston, MA

ATTORNEY ANSWER:

Massachusetts law requires the person in possession of a decedent’s last will and testament file it with the probate court located in the county where the decedent was domiciled (lived) at death within thirty days from the decedent’s date of death. Usually the named executor files the will with the applicable probate court. Based on my experience, it usually does not happen within the required thirty day due date. It appears the executor may be dealing with an insolvent estate. Even though the real estate (house) is in foreclosure, if it was owned by the decedent individually, it is part of the decedent’s probate estate. The tangible personal property (old truck, furniture, clothing, etc.) also is part of the decedent’s probate estate. The lender may look to the decedent’s probate estate for any financial deficiency relating to the foreclosure process. So, the executor may want to proceed with an insolvency probate court proceeding (unless it is cost prohibitive to do so).

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How to collect a debt on person who recently passed on?

Additional Information:

person died in July, 2010

Probate question from Holyoke, MA

ATTORNEY ANSWER:

If a probate estate has been opened for the decedent, you should file a claim against the probate estate as soon as possible. If a probate estate has not been opened for the decedent, you could petition the probate court to open a probate estate for the decedent as an interested party creditor.

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Does real estate belong to estate or beneficiaries?

Additional Information:

My sister, legal resident of VA, recently died. Her will states all property to be sold & shared equally by her 8 siblings. Executor tells us that since the will has been probated the house belongs to 8 siblings – not the estate and siblings are responsible for all expenses. There are difficulties as 1 brother cleaned out the checking account (his name was on it) and several want to file action to prevent final distribution of estate so he will not get his share. We thought this would mean money held in a bank account – not holding onto a deteriorating asset. If this is right, why have a will?

Probate question from Worcester, MA [Read more…]

My brother passed away and my dad is the executor of the will. Do we have to sell his personnel stuff to paid his bills?

Additional information

My brother house is not paid for. He has a car, but no other assets, do we have to sell his furniture and stuff to pay his outstanding bill. There is no money in any bank accounts or stocks. He had to withdrawn his IRA way before passing. Can the family keep his personnel things or do we have to sell them to pay off his debts? I assume that we can foreclose on the house and let the bank will take it. He owes more on it than we can sell it for..There is just his furniture, clothing etc..No money in any bank accounts. Just the car (which is paid for) I suppose we have to sell it?

Probate question from Raynham, MA [Read more…]