San Diego County Probate News

Probate news often does not rattle the legal world, compared to criminal cases, high-profile divorce battles, and the like.  There is a change in procedure and proposed orders in San Diego County which, to the competent attorney, is not too big a deal.  However, to the self-representing ("pro per") litigant, this little change in rules may result in having to continue a matter for 30 to 60 days to correct.

Commencing January 1, 2015, San Diego Probate Jurisdiction requires an Order on a Motion or Petition be filed, and/or presented at the hearing date before the case is called, or the matter will not be heard.  Many jurisdictions allow a party who has prevailed on their motion or petition to provide an order for the judge to sign after the order is made (many self-represented litigants do not remember to bring in a proposed order).  No longer will this happen in San Diego.  You can find a copy of the Notice here.  

If you don't bring in a copy of a proposed order, the Court shall simply use a minute order created by the Court.  Minute orders sometimes may miss the fine details, or state erroneous terms due to mistake or error that results in you having to return to Court, often on another costly Motion or Petition to correct.   

Having the proper counsel at your side can make a big difference in your probate matter.  Counsel generally can keep up with the latest local rules, and between the six southern California counties (Ventura, Los Angeles, San Diego, Orange, Riverside, and San Bernardino), each has its own quirks and local rules requiring complete compliance.  Call my office today to discuss your probate matter (yes, we do practice outside of Riverside and San Bernardino county).  

When is a multi-million dollar settlement check taxable?

Ex-wife first rejects, then accepts a $975 million dollar settlement check from ex-husband.  She receives the check in 2014, but cashes the check in 2015.  What tax year does she pay (a lot of) taxes on the amount?

According to Forbes "But from the recipient's side, a check is income when you receive it or when it is available to you, even if you don't cash it then.  It's called constructive receipt, and it trips up many people on their taxes."   

Click here for the entire Forbes Article.  

Can I Send Written Notice To Several Parties At the Same Address, With Only One Written Notice?

Sending Notice of a Hearing in Probate Court

Sometimes the simplest processes in Probate Law can be downright complicated.  Take, for instance, Notice.  What is Notice?  By definition in “The Law Dictionary”, notice is:

“A legal notification or warning that is delivered in a written format or through a formal announcement. An individual or party is considered liable if the party (1) has knowledge of the notice, (2) received the notice, (3) knows it through experience, (4) has knowledge with regards to an associate fact and (5) could have gained knowledge had an enquiry been undertaken.”

When filing a Petition to administer a probate, or Petition for Guardianship of a Person or Estate, or Petition for Conservatorship of a Person or Estate, the moving party (the party filing the Petition) must serve written “Notice” on the relatives, issue, and other interested parties not less than sixteen (16) days before the date of the first hearing.  

In some cases, more than one recipient of Notice may be living at the same address.  Petitioners may believe it acceptable simply to send one Notice of a court hearing to that address, instead of to each individual living at that address.  Under California Law, is this acceptable Notice?

The answer, quite simply, is a resounding “NO”.  

Under California Rules of Court, Rule 7.51(a)(3), Service of Notice of hearing requires:
“Notices mailed to more than one person in the same household must be sent separately to each person.”

If you choose to mail a notice to more than one person living at the same address, and the one written notice has an envelope listing more than one recipient, this is not good enough.  “Cutting corners” and choosing to serve notice in this manner can delay your hearing, and be slightly embarrassing to either the party, or sometimes the attorney who ignores this rule (and yes, attorneys do run afoul on this rule!).

Don’t cut corners.  Each party that deserves direct notice must receive their own separate written notice.  

Should you have any questions about Notice, or any other probate matter, please call me today to discuss.  

The Restraining Order Tar Pit - Domestic Violence

Domestic violence in the household is a very real situation that is taken with utmost seriousness by the Courts.  The Family Law Courts in Riverside and San Bernardino have a very streamlined process for filing a restraining order, and in Family Law Jurisdiction the victim has a very low burden to prove physical/mental harm, or fear of immediate and imminent harm, or harassment by the other spouse.  

In my experiences representing both victims and alleged Respondent's in a domestic violence restraining order hearing, I have often found about one-half of the cases involve a suspected actor of violence who didn't  know when to walk away earlier before the violence occurred.

Did you know that a spouse that is a victim of domestic violence can get an order for spousal support along with the protection of a restraining order?  Yes they can, and (with my tongue planted in cheek I state this) sometimes the spouse is aware of this when they choose to pick a fight with you.

I have seen clients go to jail and receive a restraining order simply because they tried to physically defend themselves from the other spouse, or snatched a cell phone out of the other spouses hands, or even wrestling for a box of property they tried to prevent the other spouse from taking.  I can only shake my head and wish these clients had listened to me first.  

You fortunately are reading this blog before things have gotten out of hand.  If you are home with a spouse, and it is "one of those nights" where you know an argument will start...just leave the house.  Take a walk, see a friend, go to the church/temple of your choice, go to the movies, anything but stay in the house and participate in an argument.  Notice my suggestions do not involve the following:  do not go to a bar, drink with friends, or do anything that can potentially be used to later frame you in a restraining order hearing (drinking/intoxication can be a major player for domestic violence; see the following link on domestic violence and substance abuse here).

Some of my clients hire me before things get too out of hand physically.  These clients take my advice, improve their accountability, and make sure that if they take legal action, the other spouse cannot successfully pick a fight with the client in order to get a DVRO and support order against the client.

Some of my clients hire me after things get out of hand.  I represent clients at restraining order hearings as well, and have an excellent record of getting those orders removed.  For these clients, I cannot turn back the hands of time and warn them not to be in a position that will warrant jail time and a domestic violence order.  

But I reiterate, the best way to prevent a DVRO is to be educated, be smart, and don't allow yourself to be involved in a violent situation if a marriage is falling apart.  There is help out there, tens if not hundreds of resources that you can reach out to and get help towards "keeping a grip" on your life.  Don't fall "into the tar pit" of domestic violence, you will risk your livelihood, your family, and can financially cost you severely.