Skip to main content
John Michael Goralka
Avvo
Pro

John Goralka’s Answers

26 total

  • Online Will vs. a 2005 Revocable Trust? Could that online Will be updated/revised?

    If you want to protect the 2005 Revocable Trust and are concerned about the ethics of someone with access to the previous online will (unknown date) what steps would you take to protect the trust?

    John’s Answer

    First, you need to verify that the appropriate assets, investment and bank accounts are transfered to the trust. You should consult with an experienced attorney to review the assets and identify which assets need to be transfered. As a general rule, if record title is in the name of the individual, then the asset or account should be transfered. If there is a beneficiary designation, you need to identify the best manner to complete that designation. Care must be taken for IRA accounts and for retirement or other tax deferred accounts. If not handled correctly, then the beneficiary may be required to take a lump sum distribution or even use a less favorable measuring life for the taxation of the benefits. The beneficiary may lose the right to qualify for a stretchout of the benefits to pay taxes on the benefits based on their age. Regarding the will itself, a new will should have been prepared when the revocable trust was established which provided that the estate was to be paid to the revocable trust. That type of will is commonly referred to as a pourover will and should include a declaration that all prior wills are revoked. This is a deceptiviely complicated situation and you should have these issues reviewed by a qualified estate planning atorney in your area. Without an attorney's review, you will not know if your plan works until after you are gone and it is too late to correct that then. If your question is whether another person could revise their will without your knowledge, then the answer is that any competent person can always revise their will even with a holographic will which is a will in which all of the material provisions are written by him or her in their own handwriting.

    See question 
  • I have an S-Corporation begun in 2011. I have a personal debt owed to me from 2008. I contributed the debt to the business

    in 2011 at inception. The debt is now uncollectable. Can the corporation now write off the debt?

    John’s Answer

    More information is needed to answer your question. Tax issues such as these are very fact specific and the answer may often turn or be effected but what may seem to be a slight technicality. First, we need to be certain that the account receivable was properly contributed to the corporation and the contribution complied with IRC section 351. I would also be concerned if the debt was owed to you by a family member. Was there a business purpsoe for the contribution. What were the payment terms and was the debtor current with paymens at the time the contribution was made to the corporation. If the item was a valid account receivable or an amount that you had the right to receive and that account was still collectible at the time of contribution and had value, then there may be a basis for a nonbusiness bad debt deduction. This issue should be reviewed carefully by your tax preparer or professional.

    See question 
  • Is it legal for a not adopted ex stepson to end up with the bloodline childrens Aunts residuary + 50% of the estate, the Aunts..

    ...life insurance policy, Her IRA, 401K,>PLUS his real Dads estate, his real mothers estate(whom was the ex wife of the bloodlines childrens Dad..)..& the bloodline children got absolutely zero, nothing...is this legal? The bloodline children didn...

    John’s Answer

    We really need more information to even guess as to the answer. First, the aunt can leave her assets to whomever she chooses. The IRA, 401k and life insurance are generally governed by beneficiary designations completed and signed by your aunt. If a beneficiary designation was completed properly, no court appearance or probate proceedings will be required and no notice to any other parties in needed or generally provided. If a beneficiary designation was not completed, then those items will be paid to your Aunt's estate and subject to probate proceedings. If the amounts are small, there are summart proceedings that may be use short of a full probate. Other assets from you Aunt's and the real father's estate are governed by their respective estate plan and the manner in which to to the assets or accounts is held. I am very sorry for the loss of your family members and for what I preceive to be the conflict that has followed. To get an accurate answer, you should meet with an attorney and be prepared to provide copies of any estate planning documents, a list of the assets and any title information and the names of all of the relatives of the deceased.

    See question 
  • I want to rent out a room in my house. I pay a mortgage and all. What percentage of the income would I have to pay in taxes?

    Does my income or how much i pay in the mortgage come into play?

    John’s Answer

    First, you really need to provide all of the finacial information to your tax preparer to get an accurate answer. That being said, you may generally consider that the amounts you receive as rent will be taxable income. You are generally able to right of your expeses for the rental. Those expenses would include a portion of your utitilies to the extent that the utilities are avaialbe to your tenant. For example, water, garbage and electricity would be included but not the telephone unless your tenant is also sharing the use of your telephone. The portion that would be generally considered expenses of the rental would be determined by a ratio of the square footage of the amount rented to the total square footage of the home. I suggest that you discuss with your taxpreparer how to fine tune that for common areas as the kitchen and bathroom. The amount paid for the mortgage and proerty taxes does not really effect this analysis. You already have a deduction for property taxed and home mortgage interest as being paid for your principal residence. Finally, you can consider depreciating a portion of the home as a rental using the same formula. I generally recommend that you not do that as you will lose the special tax treatment for your principle residence for the portion of your home depreciated when you sell later. Without depreciating a portion of your home as a rental, your first $250,000 for a single person or $500,000 for a married couple is tax free when you sell your home. Depreciating a portion of your home no longer qualifies for that special treatment and the depreciation taken will probably not be that significant. Once again, please review your specific situation and numbers with a qualified tax professional An anser such as this is only as good as the accuracy and completeness of the information provided.

    See question 
  • Inheritance Vs. Conservator ship?, I was too honest to tell the Probate Attorney that he is in the nursing home!

    I am the Power of Attorney for a friend who is in the nursing home and diagnosis with dementia. Now he is under conservator ship with government. He got some inheritance from a family member that is ready to distribute. He left the money for a clo...

    John’s Answer

    Mr. Fromm is absolutely correct. I would add that as the holder of the power of attorney you must have been a close and trusted friend. You indicated that conservatorship proceedings are now in place. You may be in a position to help your friend and his family by acting on the power of attorney to avoid continuing costs related to the conservatorship proceedings. That is probably one of the main reasons why your friend designated you on the Power of Attorney. You really should return to the probate attorney to see how you can help avoid any further conservatorship proceedings and to get more specific answers to your concerns.

    See question 
  • My father and mother were separated but not divorced. If he is not on life insurance policy at her death, is he a beneficiary?

    My father left my mother about 30 years ago. He has raised a new family in a common law relationship. They never divorced. My mother just passed. They both lived (live) in California. Will my father have a say in settling her insurance policies a...

    John’s Answer

    Life insurance is essentially a conract. The life insurance company will pay the designated benficiaries. If you fathe is not designated as a beneficiary, then he will not have any say in the distribution of the death benefit from the life insurance policy. If no beneficiart is designated, then the life insurance company will pay the proceeds to your mother's estate. Your mother's estate will be administered and distributed in accordance with her estate plan. If she has a will or trust, then that plan will control and your father should have no meaningful involvement, If your mom does not have a will or trust, then her estate plan will be governed by California's statutes regarding intestate succession and also by reference to the manner in which title to the assets is held. More information is needed regarding the circumstances such as how title to her other assets are held. However, there is no will, trust and if there was no formal legal separation filed with your mom, then your father may have an interest in the estate depending upon how title to the assets were held by your nother. Any qualified and experienced estate planning attorney in the LA area would be able to assist you with this matter. That attorney would need to see a list of the assets and confirmation of the manner that title or ownership of that asset was held by your mother.

    See question 
  • I was listed as a bene in a trust but was told a new trust may have remov. ex wont produce or file with court prop in forcl

    What can I do to to stop aution on property since the ex has not done what he and she was to do. I see that Trust show on file for property but I dont know what trust says.

    John’s Answer

    Without much information in your question, to stop a sale or auction of a property, you may need to record a lis pendens. A lis pendens would be recorded into title to prevent sales, loans or other transactions that effect title to real property. However, you need to act quickly to get that into the chain of title. You need to work with someone that is familiar with that process. Note that some lead time is needed to get that into the chain of title. You may also wish to provide direct notice to the auction company. To record a lis pendens, you must be able to show that there is a lawsuit filed and pending which effects ownership of the property. If your real dispute is not over ownership, but over what the trust ways, then you may not qualify for the lis pendens. You may be able to demand a copy of the trust and to go to court to force the release of the trust instrument, but not enough information is provided to evaluate that issue.

    See question 
  • If 3 siblings do not agree to appoint sibling that lives in house as the administration of the estate when petition in probate..

    Who will probate assign as administration of estate if family cannot come to an agreement? It appears that 2 or 3 of 4 siblings want to sale and receive their share of inheritance, but the sibling that has lived in the houses for 20 years wants t...

    John’s Answer

    I am very sorry for your loss. The question reads as though your surviving parent died without a will leaving 4 children. First, each of the 4 siblings have equal priority to petition to be the administrator of the estate. Hopefully, the 4 siblings can agree as to who the administrator will be. If not, then significant cost could be wasted in trying to determine who should fill that role. The question appears to focus on the disposition of the home. If all of the siblings do not agree to hold the property for investment, the administrator will have to sell the property and divide the net estate between the siblings. The administrator has a duty to obtain the fair rental value of the property if the property is to be rented. The administrator absolutely can force the removal of the sibling living in the property to permit the sale or if necessary to obtain the fair rental value of the property. Any one of the siblings should have an easier time purchasing the property as he or she is indirectly a 25% owner already. Extreme care should be taken in documenting that to try to preserve the parent child exemption for property taxes. If a sibling is viewed as buying the property from the estate, then the county will seek to treat that as a change of ownership for property tax purposes resulting in higher property taxes. If you are able to document or structure the transaction so that the sibling keeping the property is inheriting and not buying, you may then keep the lower property tax bas value that your parent(s) enjoyed. Once again, I am sorry for your loss.

    See question 
  • If someone promised to leave me a house and 30% of estate in a will, then his secratary claimed everything, can i sue the estate

    someone I took care of for 7 years, keeps promising me that he will leave me five milion, and told me that i did not have to buy a house just yet because he will leave me one, also promised my kids, and told them to say to there friends that they ...

    John’s Answer

    Attorney Rosemary above may be a good resource for you as she identified the key issues. The strength of your case improves if you fully performed your obligation to care for him. In other words, your case is stronger if you cared for him up to the date of death or until he was placed in a care facility. You have then fully performed your obligation for care. The letter may contain sufficient language to be a contract. Even if not enough to constitute a contract, then that may still be fulfilled as your services for many years were performed on reliance upon that written promise. There are specific statutes to consider regarding a caretaker inheriting. However, those may not apply of the agreement was made prior to you providing services as a caretaker.

    See question 
  • I own 70% of a business in California. My partner owns the other 30%. I am the President of the comapny as well as the Chief

    Executive officer. His titles are secretary and Chief Financial Officer. My question is can I legally remove his name from the bank account. He has been taking unauthorized money out of the account.

    John’s Answer

    First, I am sorry for your difficulties. This is a common problem when business relationships begin to sour. The analysis of your issue depends upon the form of entity involved. If a corporation, then with 2 shareholders you are required to have at least 2 members of the board of directors. The bank is reluctant to make a change to signing authority of the existing corporate bank account because the bank will be concerned that the bank may have exposure to liability for whom ever is frozen from the account. To make a change in the signature card, the bank will require a board resolution from at least a majority of the members of the board. If your corporation has only 2 shareholders, you are likely to have only 2 directors. The result is that you will not be able to provide the required board resolution.

    If you are an LLC, then you need to look to the operation agreement. Typically, signature authority is given to the managers. With 2 members and each of the members having titles similar to those used in a corporation, both members are likely to be managers. The operating agreement will spell out the procedure for removal of a manager. If this can be done by a majority of the capitol interests of the members, then you may be able to effectuate the removal of the wayward manager and remove his ability to access the bank account. Even if you remove his ability to sign on the account, you should be certain that he still has the ability to view the account to observe the transactions that will occur after the removal of his name from the signature card.
    This situation is a precursor to litigation. The manner in which you handle this situation is critical to your successful resolution to this matter. You must take great care to be able to demonstrate that you acted reasonably under the circumstances and did not freeze out your partner or co-owner from his share of the profits.

    If you are unable to remove his name from the account and the amounts stolen are very substantial, you may need to open a new account under the company name separate from any personal account of yours to contain the continued risk of theft. You would use that account to deposit company receipts. The other partner must have access to that account to view the transactions so that maximum transparency of business activities is available to the other partner or co-owner. This should only be done in the most extreme circumstances. The other partner will certainly allege that you are the person stealing corporate funds, profits or assets. This is a very tricky chess game and an attorney familiar with this specialized litigation will be invaluable. Good luck.

    See question