The following information is designed to give the reader a general idea of how the average divorce proceeds. However, each divorce is a little different because of specific issues between the spouses.

To begin a divorce in the state of California, one spouse must file a Petition. The person who files the Petition is the “Petitioner.” The Divorce Petition must then be served.

After the spouse is served, that person has 30 days to file a Response. This document tells the court that the Respondent wishes to participate in the divorce proceedings. The person who must file the Response is called the “Respondent.”

If the Respondent fails to file a Response within 30 days after being served with divorce paperwork, the case proceeds without the Respondent’s participation. The Petitioner prepares a judgment and submits it to the court. The Petitioner requests orders concerning custody, visitation, child support, spousal support and division of property. Six months and one day after the Respondent is served, the divorce becomes final (this is called a “waiting period”).

If the Respondent files a Response, the parties exchange documents and other information about their property and incomes.

If one or both of the parties need the court to make orders, either spouse may do so by filing an Order to Show Cause.  Normally, the request will be for child custody, child visitation, child support, spousal support, attorney fees, or for a domestic violence restraining order. Each party appears in court and explains his/her position. The court then makes orders based upon the parties’ declarations or testimony.

In many cases, the matter goes by “default,” which is when one party does not file a Response and the Petitioner asks the Court/Judge for a Judgment without having to go to Court.  Often times, the parties will settle the entire case with a Marital Settlement Agreement.  Judgment documents must be properly prepared and processed with the Court in every instance.  Again, six months and one day after the Respondent was served, the divorce becomes final.

Once the judge signs the judgment and the six month waiting period has elapsed, the divorce becomes final.

Even after the court signs the judgment, some orders can be modified. These include child support, custody, visitation, and usually spousal support. However, other orders can almost never be changed after the judgment is entered, these include orders dividing property and any other type of order.

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WHAT IS PROBATE? Probate is a legal proceeding that is used to wind up a person’s legal and financial affairs after death. In California probate proceedings are conducted in the Superior Court for the county in which the decedent lived, and can take at least eight months and sometimes as long as several years.

WHAT HAPPENS DURING A PROBATE? The person who is nominated in the will as executor files a petition with the Superior Court asking that he or she be appointed as executor. If there is no will, the Probate Code provides a list of persons who have priority to petition to become administrator. The will also is filed with the petition, and notices are sent to the heirs and/or relatives to let them know when the hearing will be held. If there are objections to the petition, or if the validity of the will is contested, the hearing will be used to resolve any problems that have arisen. In some cases this may mean that the validity of the will is not upheld, or that some other person than the original petitioner is chosen to administer the estate. In most cases, however, there is no objection and the petition is granted. The executor then makes an inventory of the estate’s assets, locates creditors, pays bills, files tax returns, and manages the estate assets. When all of the duties of the executor are completed, another petition is filed with the court asking that the estate be distributed to the heirs. If this petition is granted, the estate administrated is completed by distributing the assets to the heirs and filing final tax returns.

HOW MUCH DOES PROBATE COST? California Probate Code section 10810 sets the maximum statutory fees that attorneys can charge for a probate. Higher fees can be ordered by a court for more complicated cases. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000.

The fees listed below are the California statutory fees used to compensate attorneys and executors in probate cases for various sizes of estates. If both the attorney and the executor receive a fee, the amount paid will be double that shown below.  The value of the estate is determined, in general, by the inventory for the estate.  (If an accounting of the estate has been waived, the total value of the estate for attorney’s fees purposes is the inventory, plus gains on sales, minus losses on sales.)  Debts are not included in determining attorney’s fees, and if a house is appraised at $1,000,000, for example, and it has a mortgage of $800,000, it is still considered a $1,000,000 asset for the purpose of calculating attorney’s fees. 

 

Estate Value	Statutory Fee
$100,000	$4,000
$200,000	$7,000
$300,000	$9,000
$400,000	$11,000
$500,000	$13,000
$600,000	$15,000
$700,000	$17,000
$800,000	$19,000
$900,000	$21,000
$1,000,000	$23,000
$1,500,000	$28,000
$2,000,000	$33,000
$3,000,000	$43,000
$4,000,000	$53,000
$5,000,000	$63,000
$6,000,000	$73,000
$7,000,000	$83,000
$8,000,000	$93,000
$9,000,000	$103,000
$10,000,000	$113,000
$15,000,000	$138,000
$20,000,000	$163,000

 

The fee charged to file a probate petition is $395, but may be slightly higher in some counties due to surcharges.  There will be an additional $395 filing fee when the petition for final distribution is filed.  There are other fees for publication of the probate notice, for the probate referee, and for certification of copies of court documents.

APPRAISAL OF THE ESTATE: Estates are appraised by probate referees, who are appointed by the State Controller to determine the fair market value of the asset. The fair market value includes mortgages and other debts, which can result in an appraisal of the property that is higher than the equity that the deceased owned in the property. Probate referees receive a fee based on .1 percent of the assets that have been appraised.

FEES CAN GO HIGHER: In probates that are complicated by lawsuits or tax problems, the attorney and executor can ask the judge to approve fees that are higher than those set by state law.

ADVANTAGES OF PROBATE: The proceedings are controlled by a judge, who can decide disputes between heirs or between the heirs and the executor. Creditors are required to submit their claims against the estate within a four-month period, provided they have been notified of the probate. The executor is required, in most cases, to prepare an accounting and report of the executor’s activities.

DISADVANTAGES OF PROBATE: The cost is usually much higher than would be required for the administration of a living trust for an estate valued at the same amount. It usually takes longer to probate an estate than to administer a trust. Most estates don’t need the supervision of the court unless disputes occur.

AVOIDING PROBATE: Many estates do not need to be probated. For information about avoiding probate, click here: Avoid Probate  If there is a surviving spouse, a spousal property petition might be used.  For small estates the small estate lawmay be useful.

Source:  http://www.ca-trusts.com/probate.html on 8/21/11

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.

In an eviction lawsuit, the landlord is called the “plaintiff” and the tenant is called the “defendant.”

Recent laws designed to abate drug dealing ²⁹⁵ and unlawful use, manufacture, or possession of weapons and ammunition,²⁹⁶permit a city attorney or prosecutor in selected jurisdictions ²⁹⁷ to file an unlawful detainer action against a tenant based on an arrest report (or other action or report by law enforcement or regulatory agencies) if the landlord fails to evict the tenant after 30 days notice from the city. The tenant must be notified of the nature of the action and possible defenses.

An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord’s summons and complaint.²⁹⁸ Normally, a judge will hear and decide the case within 20 days after the tenant or the landlord files a request to set the case for trial.²⁹⁹

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity, remove outside windows or doors, or seize (take) the tenant’s belongings in order to carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.³⁰⁰

In an unlawful detainer lawsuit, the court holds a hearing at which the parties can present their evidence and explain their case. If the court finds that the tenant has a good defense, the court will not evict the tenant. If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay court costs (for example, the tenant’s filing fees). The landlord also may have to pay the tenant’s attorney’s fees, if the rental agreement contains an attorney’s fee clause and if the tenant was represented by an attorney.³⁰¹

If the court decides in favor of the landlord, the court will issue a writ of possession.³⁰² The writ of possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out, and seize (take) the tenant’s belongings that have been left in the rental unit. The landlord is not entitled to possession of the rental unit until after the sheriff has removed the tenant.

The court also may award the landlord any unpaid rent if the eviction is based on the tenant’s failure to pay rent. The court also may award the landlord damages, court costs, and attorney’s fees (if the rental agreement or lease contains an attorney’s fee clause and if the landlord was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up the rental unit, the court also may award the landlord up to $600 as a penalty.³⁰³ The judgment against the tenant will be reported on the tenant’scredit report for seven years.³⁰⁴

How to respond to an unlawful detainer lawsuit

If you are served with an unlawful detainer complaint, you should get legal advice or assistance immediately. Tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations, or private attorneys can provide you with advice, and assistance if you need it. (See “Getting Help From a Third Party “)

You usually have only five days to respond in writing to the landlord’s complaint. You must respond during this time by filing the correct legal document with the Clerk of Court in which the lawsuit was filed. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday.³⁰⁵ Typically, a tenant responds to a landlord’s complaint by filing a written “answer.” (You can get a copy of a form to use for filing an answer from the Clerk of Court’s office or online atwww.courtinfo.ca.gov/cgi-bin/forms.cgi (Form 982.1(95).)

You may have a legal defense to the landlord’s complaint. If so, you must state the defense in a written answer and file your written answer with the Clerk of Court by the end of the fifth day. Otherwise, you will lose any defenses that you may have. Some typical defenses that a tenant might have are listed here as examples:

• The landlord’s three-day notice requested more rent than was actually due.
• The rental unit violated the implied warranty of habitability.
• The landlord filed the eviction action in retaliation for the tenant exercising a tenant right or because the tenant complained to the building inspector about the condition of the rental unit.

Depending on the facts of your case, there are other legal responses to the landlord’s complaint that you might file instead of an answer. For example, if you believe that your landlord did not properly serve the summons and the complaint, you might file a Motion to Quash Service of Summons. If you believe that the complaint has some technical defect or does not properly allege the landlord’s right to evict you, you might file a Demurrer. It is important that you obtain advice from a lawyer before you attempt to use these procedures.

If you don’t file a written response to the landlord’s complaint by the end of the fifth day, the court will enter a default judgmentin favor of the landlord. A default judgment allows the landlord to obtain a writ of possession (see Writ of Possession), and may also award the landlord unpaid rent, damages and court costs.

The Clerk of Court will ask you to pay a filing fee when you file your written response. The filing fee typically is about $180. However, if you can’t afford to pay the filing fee, you can request that the Clerk allow you to file your response without paying the fee (that is, you can request a waiver of the fee). An application form for a fee waiver, called an “Application for Waiver of Court Fees and Costs,”can be obtained from the Clerk of Court or online at www.courtinfo.ca.gov/cgi-bin/forms.cgi (Form 982a(17)).³⁰⁶

After you have filed your written answer to the landlord’s complaint, the Clerk of Court will mail to both you and the landlord a notice of the time and place of the trial. If you don’t appear in court, a default judgment will be entered against you.

Special Rules for Tenants in the Military: A servicemember may be entitled to a stay (delay) of an eviction action for 90 days. This rule applies to the servicemember and his or her dependents (such as a spouse or child) in a residential rental unit with rent of $2,400 per month or less. The servicemember’s ability to pay rent must be materially affected by military service. The judge may order the stay on his or her own motion or upon request by the servicemember or a representative. The judge can adjust the length and terms of the delay as equity (fairness) requires.³⁰⁷

Eviction of “unnamed occupants”

Sometimes, people who are not parties to the rental agreement or lease move into the rental unit with the tenant or after the tenant leaves, but before the unlawful detainer lawsuit is filed. When a landlord thinks that these “occupants” might claim a legal right to possess the rental unit, the landlord may seek to include them as defendants in the eviction action, even if the landlord doesn’t know who they are. In this case, the landlord will tell the process server to serve the occupants with a Prejudgment Claim of Right to Possession form at the same time that the eviction summons and complaint are served on the tenants who are named defendants.³⁰⁸See additional discussion of “unnamed occupants” and Claim of Right to Possession forms.

SOURCE:  http://www.dca.ca.gov/publications/landlordbook/evictions.shtml

By Daniel B. Evans
Copyright © 1995, 2007 Daniel B. Evans. All rights reserved.
Last updated 8/21/2007

Revocable trusts have become increasingly popular as substitutes for wills in estate planning. Many people believe that by creating a trust, naming themselves as trustees, and transferring their assets to the trust, they will save taxes, simplify the administration of their estates, and save money for their children or other beneficiaries. Unfortunately, these beliefs are not based in fact, and are typical of the myths that surround so-called “living trusts.” (For a summary of some of the similarities and differences between wills and revocable trusts, see “What Are the Differences Between Wills and Revocable Trusts?” in this website.)

Myth # 1: Living trusts save taxes.

This is absolutely wrong. All of the assets in a living trust are subject to both state inheritance taxes and the federal estate tax, just like assets that pass through a probate estate.

A living trust also saves no income taxes during lifetime and may actually increase income taxes after death, because some of the income tax rules for trusts are not as favorable as the income tax rules for estates (although an option now exists to elect to treat a revocable trust as part of the probate estate for federal income tax purposes).

A trust that is created at death might save taxes in the future in a number of different ways, because a trust can provide income or other benefits to a person without adding those assets to the person’s taxable estate, but that kind of trust can be created by will and a revocable trust is not needed.

Myth # 2: A living trust is cheaper to administer than an estate.

This may be true for some persons in some states, but the generalization is wrong more often than it is right.

In Pennsylvania, New Jersey, and many other states, the much-feared “probate of the will” usually takes less than an hour and does not require a lawyer. The real work in the administration of an estate is the collection of the decedent’s assets, the payment of debts and death taxes, and the distribution of the remaining assets according to the will. The administration of a living trust is almost exactly the same, because the trust assets must be collected, the debts and death taxes must be paid, and the remaining trust assets must be distributed. The only advantage of a living trust is that if the decedent was not the trustee, the time and expense of searching for assets and transferring them to the executor might be avoided. That advantage must be weighed against the time and expense of transferring assets to a trustee during lifetime, as well as the inconvenience and loss of control when assets are held in the name of a trustee.

Because the steps necessary to settle a trust are similar to the steps necessary to settle an estate, the legal fees should be about the same, and the executor (or trustee) should be able to negotiate a reasonable fee agreement after comparing the fees of different lawyers. Legal fees for the settlement of an estate will be higher than the fees for the administration of a trust in those few states (such as California and New York) that have complicated probate procedures or a statutory fee schedule for lawyers. In those states, having a living trust may help to reduce legal fees.

Myth # 3: A living trust can be distributed faster than an estate.

This is also wrong. There is no law preventing an executor from distributing all or any part of the estate at any time, as long as the executor is willing to assume the risk of loss if there are additional debts or taxes, or if the distribution is incorrect.

The trustee of a living trust is also liable for debts and taxes, and may delay distributing assets for the same reasons.

As a practical matter, most executors are reluctant to distribute assets until the death taxes have been settled, which can take from nine months to two years, and there is no reason for the trustee of a living trust to distribute assets any more quickly.

Myth # 4: Even if it might do no good, a living trust will do no harm.

Not necessarily.

In their desire to avoid the alleged evils of “probate,” many people jump out of the frying pan and into the fire, running directly into the arms of charlatans who are eager to sell “packages” of living trusts for exorbitant fees. And those trust documents may be poorly written, with the result that large fees have been paid for documents that actually result in unneccessary taxes, legal fees, or court costs.

And the probate system is not without its advantages, because it requires notices to beneficiaries and a clear remedy if the estate is not distributed according to the will. In their desire to avoid probate litigation, many people create trusts that give fewer rights to their beneficiaries and so, if the trustee turns out to be dishonest or hostile, the beneficiaries of a living trust may find themselves hampered by the trust document in their attempts to recover their inheritances.

Conclusion: Living trusts are good for some people, but not for everyone.

Living trusts have both advantages and disadvantages, but most people don’t need them and aren’t helped by them. A living trust is most likely to benefit someone who lives in a state with complicated or expensive estate administration requirements (not Pennsylvania or New Jersey), who has life insurance or retirement benefits which need to be held in trust after death (because of minor children or for tax reasons), who owns real estate in other states (which might require probate proceedings in those other states), or whose investments are already being held and managed by some other person and that other person could serve as trustee at little or no additional cost.

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