Court order determining succession to property in California

A Court order determining succession to property in California is the topic of this blog post. This is also known as a summary or simplified probate proceeding as it is much quicker and less expensive than a standard probate proceeding in California.

The statutes in California governing a court order determining succession to property are found in Probate Code Sections 13150 through 13158. A California summary probate is initiated by the filing of a petition in the superior court for an order determining succession to real or personal property.

The petitioner must wait until at least 40 days have elapsed since the death of the decedent before filing the petition, and the gross value of the decedent’s real and personal property in California may not exceed $150,000. See Probate Code section 13151. This limit was only $100,000 prior to January 1, 2012. Note that a probate referee must complete and sign an inventory and appraisal certifying the amount of the gross value of the estate which must then be filed with the Court along with the petition.

Certain property is not counted in calculating the gross value of the estate as the value of the estate is calculated using the exclusions listed in Probate Code section 13050 which states in pertinent part that the following property is excluded:

Real property located outside California;

joint tenancy property;

property that goes outright to a surviving spouse;

life insurance, death benefits, and other assets not subject to probate that pass to named beneficiaries;

multiple-party accounts and payable-on-death accounts;

registered manufactured or mobile homes;

any numbered vessel;

registered motor vehicles;

salary including vacation pay due the decedent up to $15,000;

amounts due decedent for services in the armed forces, and

property held in trust, including a revocable living trust.

The simplicity of filing a petition to determine succession to real or personal property is a huge bonus. In some counties a hearing on the petition can be scheduled within 4-6 weeks from filing depending on the court calendar. The cost is much less than a standard probate no publication is required in an adjudicated newspaper although notice of the petition must be given to any heirs and all beneficiaries listed in any will.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters including Probate matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 245 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit: http://freeweeklylegalnewsletter.gr8.com/

View sample legal document packages for sale here: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Posted in California freelance paralegal, California legal topics, California Probate | Tagged , , , , | Leave a comment

California spousal property petition

A California spousal property petition is the topic of this blog post. This petition allows
assets inherited by a surviving spouse or registered domestic partner in California to be transferred with a simplified procedure that is known as a Spousal or Domestic Partner Property Petition. The code sections governing the passage of property to a surviving spouse without administration in California are found in Probate Code sections 13500 through 13660.

Because the standard proceedings for administration of an estate in California are very costly and take a minimum of 7-8 months in most counties, the spousal property petition is very advantageous and a useful shortcut.

The petition must be submitted to the probate court for approval; however the process is fairly simple and much faster than regular probate. There is no limit on the value of property that can be transferred this way.

A spousal property petition may be filed even though no other proceedings for the administration of the estate are pending. However, if a standard probate proceeding has already been filed and is pending the petition may be filed in that proceeding and may request an order that administration of all or part of the estate is not necessary for the reason that all or part of the estate is property passing to the surviving spouse. See Probate Code § 13650.

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The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters including Probate matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 245 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit: http://freeweeklylegalnewsletter.gr8.com/

View sample legal document packages for sale here: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Posted in California Probate | Tagged , , , | Leave a comment

Attorney verification of eviction complaints in California

Attorney verification of unlawful detainer (eviction) complaints in California is the topic of this blog post. Many landlord attorneys routinely verify eviction complaints as a matter of course and think nothing of it. However this may leave the eviction complaint vulnerable to a motion to strike the entire complaint. Thus any defendant in California served with an eviction complaint should be sure to examine the complaint to determine if the landlord or an attorney verified the complaint. The verification should also be closely examined to determine if it is a “boilerplate” verification. A boilerplate verification which is used by many attorneys may be vulnerable as many do not comply with Code of Civil Procedure section 446 which requires the attorney to state the reasons why the verification is not made by one of the parties.

Code of Civil Procedure section 446 states in pertinent part that, “In all cases of a verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his or her information or belief, and as to those matters that he or she believes it to be true; and where a pleading is verified, it shall be by the affidavit of a party, unless the parties are absent from the county where the attorney has his or her office, or from some cause unable to verify it, or the facts are within the knowledge of his or her attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except one of the parties, he or she shall set forth in the affidavit the reasons why it is not made by one of the parties.” (Emphasis added.)

The plain language of Code of Civil Procedure section 446 clearly states that the only situations in which an attorney verification of an unlawful detainer complaint, or any other California complaint is proper is when the plaintiff is absent from the county where the attorney has his or her office or is otherwise unable to verify the complaint; or the facts are within the personal knowledge of the attorney verifying the complaint. A California Court of Appeal has also stated this in a published case.

Another California Court of Appeal has stated that unless the client’s absence from the county makes it impractical or impossible to have the client sign the verification, an attorney cannot verify a pleading on behalf of their client. In that case the Court of Appeal specifically held that in cases where the client can be reached by mail, verification by an attorney is not allowed.

Because of the advanced means of communication possible today there are essentially very few situations where a client is truly unavailable to sign a verification.

The proper way to attack a California eviction complaint that has been verified by the attorney for the landlord is to file a motion to strike the entire complaint on the grounds that the attorney verification is improper and therefore the complaint is not drawn in conformity with the laws of the State of California.

Attorneys or parties in California who would like to view a portion of a sample motion to strike an eviction complaint that includes an objection to the attorney verification sold by the author can see below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit: http://freeweeklylegalnewsletter.gr8.com/

View sample legal document packages for sale here: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Posted in California civil litigation, California evictions, California unlawful detainer, law and motion, motion to strike unlawful detainer complaint | Tagged , , , , | Leave a comment

California motion to suppress evidence

A California motion to suppress evidence under Penal Code section 1538.5 is the topic of this blog post.  A California motion to suppress evidence under Penal Code section 1538.5 can request the suppression of evidence obtained as a result of a purportedly illegal search or seizure conducted in violation of the Fourth Amendment to the United States Constitution. A motion to suppress evidence may be used to challenge searches that were conducted either with or without a search warrant.  This blog post will discuss the use of a motion to suppress evidence from a search conducted without a search warrant.

Penal Code section 1538.5(a)(1)(A) states in pertinent part that, “On motion, the court shall suppress evidence the People obtained as a result of a search or seizure on the grounds that the search or seizure without a warrant was unreasonable.

Motions to suppress evidence are powerful motions as the prosecution may not have a solid case against a defendant if evidence is excluded. If the motion to suppress evidence is granted, the prosecutor’s case against the moving defendant may be so lacking in evidence that the granting of the motion may prompt the prosecution to either dismiss the charges, or negotiate a plea bargain with a much lighter sentence than what a defendant was previously facing.

The motion to suppress evidence must be in writing and must also be accompanied by a memorandum of points and authorities that lists the specific items of property or evidence sought to be suppressed and the factual basis and legal authorities in support of the motion. See Penal Code §1538.5(a)(2).

It is settled law in California that the burden of proving that a warrantless search was justified lies with the prosecution.  However the defendant has the initial burden of showing that a search or seizure was without a warrant and that it was unreasonable under the circumstances.  A defendant can meet this burden by showing that the police performed a warrantless seizure.

In misdemeanor cases, the motion to suppress must be made and heard before trial. See Penal Code § Section 1538.5(g). However, the defense is entitled to a continuance of up to 30 days in misdemeanor cases to prepare for the hearing on the motion.  See Penal Code § 1538.5(l).

If the defendant was not aware of the grounds for the motion until the case is already in trial, the motion may be made and heard during trial. See Penal Code § 1538.5(h).

In felony matters, the motion may be made either at the preliminary hearing or later, upon filing of the information.  See Penal Code §§ Section 1538.5(f)(1) and 1538.5(f)(2) for more details.

Attorneys or parties in California who would like to view a portion of a sample motion to suppress evidence from a warrantless search in California sold by the author can see below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 245 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit: http://freeweeklylegalnewsletter.gr8.com/

View sample legal document packages for sale here: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

 

Posted in California criminal litigation, California freelance paralegal, California legal topics | Tagged , , , , | Leave a comment

Protective order in California for interrogatories

A protective order in California for interrogatories is the topic of this blog post.   A motion for a protective order for special interrogatories in California is filed pursuant to Code of Civil Procedure section 2030.090 and is used in various situations including situations where the propounding party has propounded an excessive number of interrogatories, or the interrogatories are clearly not relevant to any claim or defense involved in the action and thus are unduly burdensome and oppressive.

Code of Civil Procedure section 2030.090 states in pertinent part that, “When interrogatories have been propounded, the responding party, and any other party or affected natural person or organization may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the set of interrogatories, or particular interrogatories in the set, need not be answered.

(2) That, contrary to the representations made in a declaration submitted under Section 2030.050, the number of specially prepared interrogatories is unwarranted.

(3) That the time specified in Section 2030.260 to respond to the set of interrogatories, or to particular interrogatories in the set, be extended.

(4) That the response be made only on specified terms and conditions.

(5) That the method of discovery be an oral deposition instead of interrogatories to a party.

(6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way.

(7) That some or all of the answers to interrogatories be sealed and thereafter opened only on order of the court.

(c) If the motion for a protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was sought on terms and conditions that are just.”

It should be noted that sanctions may be imposed against the losing party on any motion for a protective order.

Code of Civil Procedure section 2030.090(d) states that, “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

The California Supreme Court has ruled that the burden is on the party seeking a protective order to show good cause for the protective order.

The party seeking a protective order bears the burden to show good cause for the requested order. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.

The moving party must do the following to be entitled to a protective order.

They must promptly move for a protective order.

They must comply with the meet and confer requirement.

They must also meet their burden that the special interrogatories propounded are excessive, or clearly do not relate to any claim or defense that is at issue in the case and are unduly burdensome and oppressive.

Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. See Code of Civil Procedure section 2017.010. Thus the law in California has established a relevancy standard.

A California Court of Appeal has stated that any party served with discovery requests that fail to meet the relevancy standard may move for a protective order on the grounds that the discovery requests are unduly burdensome and oppressive.

Attorneys or parties in California who would like to view a portion of a sample 15 page motion for protective order regarding interrogatories sold by the author can see below.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

To view over 255 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 245 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

 

 

 

 

 

Posted in California civil litigation, California freelance paralegal, California law and motion, California legal topics, law and motion, special interrogatories, special interrogatories for California | Tagged , , , , , | Leave a comment