Frequently Asked Questions
We hope you will find this information helpful in answering common questions that clients often have.
- What is probate?
- How long does the probate process take?
- How much can I expect the probate process to cost?
- What is family law?
- How do I get divorced?
- How long does it take to get a divorce?
- How much will a divorce cost me?
- What is legal custody of children?
- What is physical custody of children?
- What's the difference between a divorce, legal separation and annulment?
- What are the requirements for filing a petition for dissolution of marriage in California?
- Are there any rules that my spouse and I must follow during the divorce process?
- What is the difference between community property and separate property?
Why should I have an estate plan prepared?
When a person dies without a Will or a Will and a Trust, provisions in the California Probate Code determine who receives the person's property. The beneficiaries are typically the Decedent's spouse and/or children, but if the Decedent has no spouse or children, the beneficiaries are the Decedent's other heirs, or in some cases the heirs of a deceased spouse. If the Decedent has no heirs, the beneficiary becomes the State of California through a process called escheat.
An estate plan typically consists of a Will, or a Will and a Trust, a Durable Power of Attorney for financial matters, and a Durable Power of Attorney for Health Care. Through a Will or Trust, you decide who will get your property, and in what proportion. Besides providing for your family, you can provide for some or all of your property to go to schools or charities or other entities, and you can also specifically exclude someone who would otherwise be entitled to some portion of your estate. A Durable Power of Attorney for financial matters allows a person chosen by you to handle your financial affairs if you are unable to do so yourself. A Durable Power of Attorney for Health Care allows a person chosen by you to make required health care decisions for you if you are unable to do so yourself. If these Durable Powers do not exist, someone must petition the Court to be appointed your Conservator if you become unable to handle your own affairs. Besides the additional costs, the Conservator might not even be one of your relatives or trusted friends.
In short, having an estate plan puts you in control of how your property and affairs will be handled upon your death and during your life if you become disabled or otherwise unable to manage your affairs yourself. Upon your death, it provides for an orderly transfer of your property to the persons or entities you have chosen and at least somewhat reduces the stress felt by your survivors.
How is a Trust different from a Will?
A Will allows you to choose who will get your property upon your death, who will be in charge of making the distributions (your Executor), and whether your beneficiaries will receive the property directly or through a trust that you have directed to be established upon your death. In many cases, a Will requires that a probate proceeding be filed with the Court.
A Trust also allows you to choose who will get your property upon your death, who will be in charge of making the distributions (your Trustee), and whether your beneficiaries will receive the property directly or through further trusts that you have directed to be established upon your death. In most cases, no probate or other Court proceedings will be necessary. During your lifetime, you are the Trustee of your Trust, and other than putting titled property into your name as Trustee rather than as an individual, you will continue to manage your affairs the same as you would if there were no trust. If you are married, upon the death of you or your spouse, your spouse or you will continue to be Trustee. If you have a large estate that will be subject to an estate tax, a Trust allows you to minimize some of the tax effects that would otherwise occur.
Trusts are almost always more expensive to prepare than Wills, but that extra cost is far outweighed by the savings upon your death if you have property that would require probate under a Will, because again, in most cases, no Court proceedings will be necessary if you have a Trust.
What is probate?
Probate is the legal process by which the probate court orders the payment of debts and the transfer of legal title of property of a person who has died (the Decedent).
If the Decedent has made a Will (testate), the probate court determines if the Will is valid, appoints the person named in the Will as Executor, hears any objections to the Will, orders that creditors be paid and supervises the process of distributing the remaining property as specified in the Will.
If the Decedent has no Will (intestate), the probate court appoints a person (the Administrator) to receive all claims against the estate, pay valid debts, and then distribute the remaining property to the person(s) entitled to it under the laws of the state.
A probate case in California is started by filing a Petition for Probate in the Superior Court of the County in which the Decedent resided at the time of death, along with a Notice of Hearing specifying when and where the hearing on appointment of the Executor or Administrator will be held. This Notice must be published in a newspaper of general circulation in the city, or if no such newspaper exists, in the county where the Decedent resided or owned property, and which is published at least once a week. The Notice must be published three times, with at least five days intervening between the first and last publication dates.
If the Decedent's estate includes property other than money or its equivalent, a Probate Referee is appointed by the Court to inventory and appraise such property.
To close a Probate, a Petition for Final Distribution and an account by the Executor or Administrator is filed with the Court, which then issues an order for distribution of the property in the Estate.
How long does the probate process take?
The time it takes to complete the probate of an estate can vary widely, depending upon multiple factors, including how much and what kind of property is involved, how many heirs or beneficiaries there might be, the ease or difficulty of locating those persons, whether there are disputes among the heirs or beneficiaries, and the particular Court's calendaring schedule.
The initial hearing for appointment of the Executor or Administrator is often not scheduled until 6-8 weeks after the Petition is filed. Once appointed, the Executor or Administrator must notify all known creditors of the Estate, and those creditors have 4 months in which to file a claim with the Estate. The hearing on the Petition for Final Distribution is also often not scheduled until 6-8 weeks after that Petition is filed. This would result in an uncomplicated estate taking approximately 7-8 months to complete. However, intervening proceedings, such as disputes over creditor claims, sale of real or personal property, or disputes among the heirs or beneficiaries could greatly extend the time. Further, the time will usually be extended if the Decedent owned property outside of California. In that instance, a probate or probate-like proceeding will usually be required in the jurisdiction where such property is located.
How much can I expect the probate process to cost?
Probate is not inexpensive. The filing fees for the Petition for Probate and the Petition for Final Distribution are, in 2014, $435.00 each, payable to the Court. The cost of the newspaper publication will vary depending on the newspaper, but will normally be at least $300.00. Certified copies cost $25 plus $0.50 or $1.00 per page. At least one, and often several, copies of the Letters Testamentary (appointing an Executor) or Letters of Administration (appointing an Administrator) will be required, and it is sometimes necessary to certify a copy of the Final Order of Distribution. There is also a fee for the Probate Referee, if one is appointed. That fee is generally about 1% of the value of property inventoried and appraised by the Probate Referee.
The Executor or Administrator, and the attorney representing the Executor or Administrator, are each entitled to statutory fees pursuant to the California Probate Code. Those fees are calculated as a percentage of the gross value of the estate (i.e., the value of the property in the estate without reduction for outstanding debts). The fee schedule as of 2014 is 4% of the first $100,000.00 of value, plus 3% of the next $100,000.00, plus 2% of the next $800,000.00, plus 1% of the next $900,000.000, plus 0.5% of the next $15,000,000.00. In estates exceeding a value of $25,000,000.00, the Court determines a reasonable fee to be added to the above percentages. For example, with an estate with a gross value of $750,000.00, the Executor's/Administrator's commissions and the attorney's fee would each be $18,000.00.
In some estates, fees for extraordinary services by the Executor/Administrator and the attorney can be requested. Such extraordinary services are usually rendered when real property in the estate must be sold, or a business owned by the Decedent must be sold or closed down. The Court determines such extraordinary fees, which are based upon the time expended on the services and the difficulty of the tasks required.
What is family law?
Family law is the body of law in California that governs some of the legal issues that families face. These legal issues include, but are not limited to:
- Marital dissolution (divorce), legal separation, nullity
- Dissolution of domestic partnerships
- Child custody
- Child support
- Spousal support
- Division of assets and liabilities
- Domestic violence
- Premarital agreements (prenuptial agreements)
- Post-marital agreements (antenuptial agreements made during the marriage)
- Cohabitation agreements
- Termination of parental rights
- Dependency and child neglect
- Grandparent rights
How do I get divorced?
The process of dissolving a marriage or domestic partnership begins when one spouse or partner files a Petition with the Superior Court. The party who files the Petition becomes the Petitioner, and the other party becomes the Respondent. The Petition must be served on the Respondent by somebody other than the Petitioner. The Respondent must file a response to the Petition, usually within 30 days, in order to avoid a default. It is advisable to consult with an attorney prior to filing either a Petition or a Response.
The dissolution process may proceed in several different ways:
- Settlement: The parties may come to an agreement and settle without litigation.
- Mediation: The parties may jointly consult an attorney who can act as a mediator and assist the parties in coming to an agreement.
- Collaboration: Each party may retain an attorney who practices collaborative law. In this case, each party is advised by his/her own attorney, but the attorneys are only to negotiate an agreement, and may not represent the parties in litigation.
- Litigation: One or both parties may retain an attorney and litigate the matter. It is still possible to reach a settlement or go to mediation during the litigation process. In fact, most family law cases settle prior to trial.
You are not limited to one process. For example, you may begin by attempting mediation and proceed with litigation if mediation fails.
While it is possible to proceed with a marital dissolution without the assistance of an attorney, most people are not fully aware of their community property rights and thus might not protect their rights or fully obtain what they are entitled to if they represent themselves. For example, it can be difficult for a lay person to determine the percentage of their spouse's pension or stock options to which they are entitled.
The conduct of your case will depend on several factors, including: the ability of you and your spouse or partner to cooperate; the number, types, and locations of assets involved; the presence of issues regarding child custody; the amount and complexity of contested issues; and so forth.
How long does it take to get a divorce?
Most dissolution actions require, on average, 9 to 18 months to complete. The time your case will need depends on the particular facts and circumstances of your situation. In California, the law requires that 6 months pass from the time the Respondent is served with process before marital status can be terminated.
Your marital status can be terminated before or after the other issues have been settled or litigated, depending on the facts and circumstances of your case.
How much will a divorce cost me?
It is impossible to predict how much your divorce will cost. Your cost will largely depend on: the ability of you and your spouse or partner to cooperate; the number, types, and locations of assets involved; the presence of issues regarding child custody; the amount and complexity of contested issues; and so forth.
What is legal custody of children?
Legal custody determines which parent will have the authority to make important decisions concerning their child's health, safety, education and welfare. When one parent is authorized to make these decisions alone, this is known as sole legal custody. It is called joint legal custody if both parents retain these rights.
What is physical custody of children?
Physical custody determines where the child will reside. If sole physical custody is ordered, the child will live with one parent and might visit the other parent.
What's the difference between a divorce, legal separation and annulment?
A divorce (also called dissolution of marriage or dissolution of domestic partnership) ends your marriage or domestic partnership. After you get divorced, you will be single, and you can marry or become a domestic partner again.
If you get divorced, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, division of property, and other orders. For married persons to get a divorce, you MUST meet California's residency requirement.
A legal separation does not end a marriage or domestic partnership. You can't marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that do not want to get divorced, but want to live apart and have court orders made on financial, property, and parenting issues. Couples sometimes prefer legal separation for religious reasons.
In a legal separation case, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, and other orders. You do not need to meet California's residency requirement to file for legal separation. If you file for a legal separation, you may later file an amended petition to ask the court for a divorce after you meet the residency requirements.
An annulment (or nullity of marriage or nullity of domestic partnership) is when a court says your marriage or domestic partnership is NOT legally valid. For example, a marriage or domestic partnership that is incestuous or bigamous is not valid. Other marriages and partnerships can be declared "void" if at the time of the marriage one of the following existed:
- force, fraud, or physical or mental incapacity;
- one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or
- one of the spouses or partners was already married or in a registered domestic partnership.
What are the requirements for filing a petition for dissolution of marriage in California?
At least one of the parties must have lived in California for at least 6 months and in the county in which the action is filed for at least 3 months, in order to file a petition for dissolution of marriage.
Are there any rules that my spouse and I must follow during the divorce process?
Yes. Temporary restraining orders (rules prohibiting both of you from doing certain things) go into effect automatically when the divorce process begins. For example, neither of you will be allowed to take your minor children out of state without the other spouse's written permission or a court order. Usually neither of you will be allowed to cancel or change the beneficiaries on your insurance policies or transfer property. Also, you will be required to notify your spouse before any out of the ordinary spending, and be prepared to account for such expenditures to a judge. These requirements are described on the back of the divorce Summons.
What is the difference between community property and separate property?
California is a community property state. In a community property state, property is classified as either community property or separate property. Community property, but not separate property, will be divided equally in a dissolution of marriage.
All property that you and your spouse acquired through labor or skill during the marriage is presumed to be community property. Each spouse is entitled to one-half of the community property. This is true even if only one spouse worked outside of the home during the marriage and even if the property is in only one spouse's name. Usually, debts incurred during the marriage are community debts as well. This includes credit card bills, even if the card is in your name only. Student loans can be an exception and can be considered separate property debts.
Community property assets and debts are divided equally unless you and your spouse agree to an unequal division, or unless there are more debts than assets. Keep in mind that if your spouse agrees to pay a community debt and fails to do so (or files for bankruptcy and discharges the debt), you may have to pay the creditor. If you and your spouse cannot agree on the division of your assets and debts, a judge will make the decision for you. Division of assets and debts can be complicated. You should seek legal advice before entering into any such agreement, and if you have already signed away your rights to certain property, consult an attorney to find out if you are bound by the agreement.
Separate property is property acquired before your marriage, including rents or profits received from these items; property received after the date of your separation with your separate property earnings; inheritances that were received either before or during the marriage; and gifts to you alone, not to you and your spouse. Separate property is not divided during dissolution. Problems with identifying separate property occur when separate property has been mixed or commingled with community property. (The community may acquire an interest in separate property over time.) However, you may be entitled to receive your separate property back even if it has been mixed. There are complex tracing requirements where property has been mixed. Debts incurred before your marriage or after your separation are considered your separate property debts as well.
The court will require you to file proof that you delivered to your spouse a disclosure of all of your community and separate property, and your income and expenses. Determining the character of property (community, separate, separate which the community has an interest in) can be complicated and mistakes can be costly. Obtain legal advice to make sure that your property is correctly characterized as community or separate.