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Gerard William O'Brien

Gerard O'Brien’s Answers

1,419 total

  • Lets say someone was going to loose there family home after 70 years,they knew this person who had been asking about the proper

    there was a contract the owner had lied to the police and said he thought his tenant was dead and there were squatters there was an illegal search and i was not convicted and i was thrown out of my home after 20 years and i take care of a 68 ye...

    Gerard’s Answer

    I'm not really sure what you are asking or what is happening to you. Would you restate the question starting step one. go on through to the end. Had a house in the family for 70 years, owner was A. A passed awya nd B got the house. I am C. There is a loan on the house, The loan is late /not late, etc. It ids much easier to formulate an answer when the question is clear. Look forward to hearing from you again.

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  • 50% S-Corp, CPA says need to check with other 50% before she will give me details on loans to me & from me. And loan to others

    Need details of loans to and from me, can CPA withhold this pending authorization from other 50%. Why cant I request that CPA directly provide me details of loans to me as well as my capital accounts. Can I also demand/request activity of loans fr...

    Gerard’s Answer

    You definitely need a business attorney, to help you with this. If this is a fee dispute tell the attorney up front.

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  • Dual Compensation

    My father named his trust attorney successor trustee. The trust paperwork states the attorney will charge a 1% fee and is entitled to dual compensation. Is this typical? The attorney tells him this is a simple trust. Dad appointed the attorney...

    Gerard’s Answer

    I do not think it is typical nor is it illegal, he can charge for both services as long as he provides both services, Having one set of eyes may not be the best idea, but your father may have had a reason for doing so.

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  • I plan to open a non profit, is it possible to open a non profit llc with a single member and later open a for profit?

    I plan to open a non profit and apply for 501c3, I hear I can also open a for profit under the non profit llc, is this true? So I can basically run 2 companies under one LLC, (non profit as parent and for profit under the non profit) and they both...

    Gerard’s Answer

    Getting non-profit status is a bit more difficult today than it used to be. There are also things about it that will disinsentivise you. A non-profit cannot do anything for profit that would go to shareholder or an individual. There are also only four nonprofit types and from what you are talking about you would be under the section that is for corporations that are exclusively for religious, charitable, scientific, literary or educational purposes. You have to demonstrate to the Internal Revenue Service that you would be doing something that is a benefit to the community and not a benefit to you as an individual. This could create a real and serious conflict of interest if you openned a business that competed with you nonprofit. Say all of your non money making endeavors went to the nonprofit and you took all of the profitable projects for your for profit corporation. The IRS or a community activist may ask why don't the profitable gigs go to the charity as that would further its purpose.

    Additionally you need to have board of directors and they would also have to ask why are you siphoning off the 501 c3's opportunities for personal gain.

    My advice would be go in one direction, a profitable private business could donate significantly to charity and do a world of good without all the potential problems.

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  • For a judiclal citation involving a lawsuit which paper do i fill out the denial or answer contract? Is it worth filling out?

    I am being sued for a debt collection for the amount $2344.17 which was a hospital bill and the debt was inherited by a billl collector. They are adding 10% plus the attorney fee which in total is 2956.09. I tried to negotiate and settle the matte...

    Gerard’s Answer

    I'm assuming that you are being sued in small claims court. If you are not than you will need to get an attorney, but if you are in small claims court file an answer very easy, You can plaed disability and inability to pay. Serve your answer on the plaintiff and then negotiate. If you do not have the money you need to determine if everything you do have is exempt under California Law.

    The exemptions are in CCP Section 704 [ they go on for quite a while and it is 704.10, 704.20, etc]. Usually you can find asimplified list of exemption property at the Court House or even on the internet. Things like your clothes, your furniture, a certain amount of equity in an automobile, are exempt so is a certain amount of your income, If you are government benefits it may all be exempt.

    Make an actual list of your monthly bills, the ones you pay every month. Take that list the list of applicable exemptions and proof of your income and determine if you have money to pay to the creditor. If you owe more each month than you earn you are insolvent and offering anything say $20.00 a month for 3 years may get you done or a lump sum of $300 to $500 may be all it takes. But you need to prove to the judge a genuine inability to pay.

    There is a company called NOLO PRESS that puts out law books for the layperson. If you can get theri small claims book that would be incredibly helpful. Many public libraries carry them as do book stores.

    You can resolve this it will take a little work, but you can do it.

    If you are in Superior Court, you can file a form called a general denial which will serve as your answer. A lega clinic from a local law school may be able to help you, or you could try legal aid. I would raise the defense of improper jurisdiction because the case should be in small claims, also judges usually will not awrd attorneys fees if you file a small claims case in Superior court. Also if you are in Superior Court after you file an answer there will be a status conference, at the conference ask the judge if you can go to mediation. That should give the plaintiff insentive to settle the case.

    Good luck

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  • What do I do if the person in charge of my trust fund did not give me the correct amount when I became of age?

    My grandma died 10 years ago and left my siblings and I money. My Aunt was left in charge of it until we turned 25 and she put our money in separate trust funds until then. I just turned 25 and finally got in contact with my Aunt but she only gave...

    Gerard’s Answer

    You can bring suit against her in Probate Court. In cases of breach of fiduicary duty you may be able to get a "surcharge," which means your aunt could have to pay you $3.00 for every dollar she took. Sometimes just the threat of surcharge is enough to get the fiduciary to perform their duties. You should discuss this with an attorney before you do anything. One if you are talking about a relatively small amount it may actually cost more in legal fees to get your money back. Second is your aunt likely to have the money or other money to pay you back?

    If it is a fairly large to large amount and your aunt has the money hire a probate/trust litigator. Choose carefully you need to find someone with experience a good record of success and who you can trust and work with. Good luck in your quest for justice.

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  • If I start a sole proprietorship and I get sued, will my parents be liable too?

    I am 20 years old, I am still considered a dependent when it comes to taxes.

    Gerard’s Answer

    They will not be liable on the grounds that you are too young, once you eightteen years old you are an adult and your liability for your acts falls on you. Your parents will not be liable unless they participate in the business such as performing some of the work that you do. Another example would be if they fund the business for you or if they find the work for you. In those situations you could both be sued. The sole Proprietorship gives no additional protection whatsoever; to get that you need to form an entity such as a corporation [there are other entities].

    A sole proprietorship simply means that you are doing business as an individual. My suggestion would be that you contact an organization like S.C.O.R.E. and get some advice about starting your business from someone who has retired from theirs.

    You can protect yourself and your parents by doing your work under a well structured contract, by keeping good and accurate records, by cearly defining the scope of work you are going to perform and above all else if you need to be licensed to perform you work, create your product or work with a specified class of people,: be licensed.

    Get appropriate business insurance, including worker's compensation; no one will go after your parents if you have adequate insurance to protect yourself.

    To be starting your own business at 20 bodes well for your future success, proceed with awareness.

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  • Petition for Letters Admin pending, emergency requires Petition Special Administration; is publication of 2nd petition required?

    A requested order on a filed Petition for Letters of Administration is pending in probate court, Alameda County, CA. An emergency re payment of mortgages on the estate properties has arisen. Petitioner does not have the funds to continue financial...

    Gerard’s Answer

    You need an attorney who would have to bring an exparte motion, this is going to be complicated because no letters are issued, the inventory and appraisal probably has not been done. An experienced attorney with local experience of the courts should be able to get this done. Good Luck.

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  • Aren't we entitled for the whole pay on a couple of completed services even if the invoicing was late?.

    We did couple of coating jobs for one of our clients. (around Oct, Nov 2014). The parts were brought to our shop, we coated them and all the parts were inspected by third party. Afterwards, the client came and picked them out. The invoicing wa...

    Gerard’s Answer

    Your recovery would be based on quantum meruit (the value of the work. Even on an oral contract you have a year. if the amount is under $12,000.00 you don't even need a lawyer. Go to West Court and file suit. You will need evidence of the work done and the value of the items picked out. If you have a receipt for the items taken that will be a big help. Good Luck

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  • In a irrevocable family trust, if my wife is named beneficiary, does that avoid gift taxes? She is 38 younger would that work?

    I just want to find out in a irrevocable family trust, if my wife is named the beneficiary would that avoid the gift tax upon my fathers death? Would we still have to pay capital gains tax based on the basis?

    Gerard’s Answer

    If the property transfers on death to the wife there would be no gift taxes, transfers on death are subject to estate taxes which if there were any would be paid by the estate not by your wife. There is an exemption against estate taxes (see 26 USC section 2010) of $5,340,000.00. If dads estate is less than that no estate tax will be due. It may be a good idea to visit with an estate Planning Attorney to discuss this matter and go over your wife's situation in detail. Best of luck

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