A People’s Choice has been in the legal document preparation business for over 30 years. Unlike many other companies who hide in Internet obscurity, we clearly provide you with our toll free and local telephone numbers as well as our address on our website. We are not attorneys, and we do not provide legal advice; however, we do provide exceptionally high quality legal document preparation services unsurpassed by any other company on the Internet, and we take pride in our long-term reputation.
You start the probate proceeding by filing a petition and supplemental preliminary documentation required, with the clerk of the Superior Court in the county where the decedent resided at the time of his death, no matter where he died or left property. The person requesting to be appointed the estate representative files the probate petition. That person is called the petitioner.
Many online services have failed to comply with state law requiring registration and bonding which is required by California law to offer legal document assistant services in California. These companies are not legally recognized services under California state law, and as a consumer, you are offered no protection when things go wrong! A People’s Choice is registered and bonded. As required by California law, this information is disclosed on our site. A People’s Choice is also a member of CALDA (the California Association of Legal Document Assistants); Sandy McCarthy, founder of A People’s Choice, proudly served as President of CALDA from 2004-2005. CALDA is the ONLY association in California that demands high standards of excellence from its Registered Legal Document Assistant members. A People’s Choice is also a member of the Tri-County Better Business Bureau and has been granted its prestigious A+ rating.
Estates that have a gross value of over $150,000 of personal property (assets consisting of cash, stocks, and tangible personal items) normally require probate. Any estate that includes real property worth more than $50,000 requires probate, however there are small estate proceedings that can be used to settle estates having real property valued under $150,000. These alternative proceedings can be completed much quicker and are less expensive than the full probate process. Keep in mind that these values are gross estate values and do not take into account any debts that are owed on the property.
If you have ever taken a trip to the local court’s self-help service, you might be able to answer this questions yourself. Most courts in California are understaffed and short-handed. This results in long lines at the self-help centers, requiring consumers seeking help to arrive early and wait hours before the doors open if they want to get in and be helped. By using the services of A People’s Choice you will never have to wait in line and in many situations, will not have to take time off work to deal with your legal document preparation needs. A People’s Choice offers early evening appointments and even provides many services that can be easily completed through our online system or over the telephone.
The philosophy of the court’s self-help service is a “one box fits all” solution. This usually creates confusion for people, particularly in divorce proceedings. There are a multitude of ways to complete a divorce, and some paths or options are substantially easier that others. Typically in a divorce situation, the self-help center provides consumers packets of family law forms that may or may not be needed in their particular case. The consumer is then required to sort through them and try to figure out which forms they need in their particular situation. A People’s Choice is familiar with what it takes to get your case through the court process in the fastest time and with the least amount of difficulty. We have had over 35 years to streamline our processes to make it easy and hassle free for our customers.
The Court self-help service does NOT prepare paperwork. They offer limited direction regarding document preparation, and you must prepare the documents yourself. When you use the services of A People’s Choice, your documents will be fully prepared and completed, ready for your signature. As a courtesy, in most situations we will even file your documents with the court.
In California, there are several alternatives to the full, formal probate. Some of these are:
- If the total gross value of a deceased person’s personal property does not exceed $150,000, an non-court affidavit procedure may be used on behalf of the beneficiaries to avoid a “full” probate.
- If the gross value of a decedent’s real property does not exceed $50,000, an simplified court affidavit procedure can be used on behalf of the beneficiaries to avoid a “full” probate.
- If the surviving spouse or registered domestic partner is heir to all or part of the decedent’s estate, they may file a special spousal property petition to avoid a formal probate. This method is faster and less expensive than a formal probate.
The goal of A People’s Choice is to keep our fees low, without sacrificing service. We will match any other price found on the Internet as long as the services described are exactly the same as what we offer. A People’s Choice does not just prepare legal documents. We provide “complete” services including client interview, preparation of the necessary legal documents, case monitoring and being available to answer procedural questions during your proceeding. As a courtesy, we can help with the processing and/or filing of your documents with the court or other proper entity. Court proceedings are not uniform in every county. Templates or standardized court forms are insufficient in 99% of situations – a fact that many on-line services fail to mention. Don’t take our word for it. Verify exactly what services you will be getting before you contract with any on-line services so that you won’t be unpleasantly surprised later down the road. We have many satisfied online customers. Please read our positive reviews on Superpages.com!
We understand that you will give thoughtful consideration when selecting a company to help you with your document preparation. By choosing A People’s Choice, we are confident that you won’t be disappointed! Feel free to call us on our toll-free number at 800-747-2780 if you have any further questions or would just like to chat to learn more about our services and our company.
If there are no unusual problems, a typical California probate proceeding can be concluded in approximately seven to to twelve months. Due to crowded court calendars, hearings are often held six to ten weeks after the initial probate petition is filed. After Letters of Administration are issued, there is a mandatory four-month creditor claim period. There may be other delays in getting a probate referee assigned, completing the inventory and appraisal, dealing with creditors, resolving tax issues, or will contests that could delay the probate for even longer periods.
Our flat fees cover all document preparation as specifically outlined in our Contract For Services. Our flat fees always include unlimited communication via email and customers can typically expect a very quick response, even after hours and on the weekends, although we do not “guarantee” a specific after-hour email response time. Customers that choose to communicate with our office by phone will be charged an extra fee for all incoming calls, allowing the customer complete control over their overall legal fees. This system has allowed us to keep our fees at “rock bottom” prices for those extremely price conscious consumers; while maintaining flexibility and convenience for those customers who want to pay for that extra service.
The estate representative (executor or administrator) represents the estate in a court proceeding. If there is a will which names an executor, that person is the estate representative. If there is no will (the decedent died intestate), the court will choose the estate representative who is called an “administrator.” If there is a will but no executor has been named or the person named is unable to serve, the court will choose the estate representative who is called an “administrator with will annexed.”
Over our 35 years of being in business, our number one goal has been to provide a high-qualify professional service at the very lowest cost possible. Time is money and we found that some clients were abusing our old “flat fee” policy which allowed clients unlimited calls to our office during their case. At one point, our office staff was so inundated with certain clients calling over and over, (sometimes 5-10 times a day) making it difficult to get work done during the day which resulted in a backlog in our work flow.
After considering all options, it came down to two:
1) we could raise everyone’s fees and hire extra staff just to cover the phone demand or
2) keep the fees the same, allow unlimited communication by email, and for those clients who did need to call in, they would pay for this extra service on an “as needed” basis.
In the end, we felt having people pay for the added convenience of calling was the best resolution so that everyone was not penalized for the actions of a few. Communicating by email also allows us to keep a record of what was said which is very important when dealing with legal issues.
California Probate Code Section 8200(a) requires that the original will be filed with the court in the county where the person who dies resided within 30 days after the person’s death. Unfortunately, this statutory requirement is rarely complied with. In fact, in most cases, the original will is only lodged with the court if the estate requires to be probated.
If you know that there is a will and it is not filed with the court, then you should contact an attorney to determine what your options are.
When you choose A People’s Choice, you can be assured your case will be assigned to a real person, with whom you can communicate during the entire period of your case. Most of our fees are flat fees which allows customers to communicate with us by email as often as necessary at no extra charge. We pride ourselves in making a personal relationship with every client a top priority! As a legal document assistant, our services are not limited to merely preparing your paperwork. We want to make sure that you are able to navigate through the legal system as painlessly as possible, and we are there to help you along the way.
A People’s Choice is NOT an attorney’s office. We cannot give you legal advice and some questions we may not be able to answer. We strictly adhere to the laws governing our profession, so please keep that in mind when you ask us questions that we cannot provide answers to. We offer customers many options to get answers to legal questions including our extensive self-help law library in our corporate office as well as information offered through our online library. We can also refer you to an attorney in your area who may be able to help get answers to your questions.
Probate is not an inexpensive process in California. There are several small estate probate proceedings that are reasonably inexpensive to undertake. A full probate, can run several thousand dollars in fees and costs, even when you do it yourself.
Filing a probate with the help of an experienced probate legal document assistant is the cheapest way to navigate the California probate process. Attorneys are able to charge statutory attorney fees based on the value of the estate. These statutory fees are based on the gross value of the estate, not the net value. Use our probate calculator to determine what the statutory attorney fees would be for an estate. This calculator will also show the savings when you use A People’s Choice to help you with the probate proceedings.
Clients that use our services are ultimately responsible for their own case. Our office is not an attorney’s office and we do not handle cases in the same way as an attorney would. If you need excessive hand-holding in your legal matter or are expecting “attorney like service” at non-attorney prices, you should probably hire an attorney to help you. If you simply need professional legal document help and are willing to take personal responsibility for your case with a little professional help and direction, then using our services is an excellent choice and will save you a substantial amount of money.
Your responsibility as our client is to respond to any communications from us in a timely manner and to cooperate with us as necessary until your file is closed. If we email you and we do not hear from you, your file may be put “on hold” until you respond. For this reason, it is critical that you regularly check your email and/or voice messages while we are handling your document preparation.
Our contractual obligation as a Registered Legal Document Assistant is officially limited to preparation of your legal documents. As a self-represented individual, all communication, if any, from the court will be directed to you, not to our office. If you receive communication from the court, you should send a copy to us if you have questions about it.
Our long-standing policy has been to help with the processing and/or filing of any legal paperwork we have prepared with the appropriate entity when it is conducive to do so. We do not charge for this service nor is this part of our contracted services; and this added service is strictly at our choice. We may defer the court filing of prepared documents back to the client when there is an upcoming filing deadline or other unique situation. If we are interfacing with a non-local court by mail, customers may be required to pay an extra fee for postage.
How long does it take to get a divorce in California? Well, there are two separate dates to keep in mind – 1) when the case has been completed and a Judgment entered, and 2) when a divorce is terminated.
Divorce – The clock starts ticking as soon as the other party is served with the Petition. From this date, the earliest termination date that can be entered (when the parties are considered single) is 6 months plus 1 day from the date of service. For example, if a Petition for dissolution was filed January 1st, but not served on the other party until March 1st, the earliest termination date of the parties marriage would be September 2nd. It is important to understand that the termination date of the marriage is different than the date the Judgment is entered. Keep in mind, however, that the court proceedings can be completed long before this termination date. In most of our cases, when the parties agree and timely complete their steps in the process, the court proceedings can be concluded and a Judgment entered within 2-3 months. In our earlier example, a final Judgment could be submitted on April 2nd and entered by the court shortly afterwards. As you can see, a Final Judgment can be entered by the court months before the real “marriage termination” date. The parties would not be able to remarry until after the termination date noted on the Notice of Entry of Judgment.
On the other hand, if the parties do not agree, the other side files a Response and the matter proceeds to trial, this will substantially delay the process. Often the setting of a trial may not take place for a year or two after the Petition is filed.
Legal Separation – There is no termination date in a legal separation. The time-line process is exactly the same as a divorce, except for the termination date. Once a Judgment of Legal Separation is entered, the case is completed.
Annulment – An annulment always requires a court hearing. A hearing can be requested 30 days after the date of service. At the hearing, a Judgment can be entered if the annulment is approved and the case is completed at that time. There is no future “termination date” and parties would be able to remarry immediately.
There are many third-party costs associated with filing a California probate proceeding. These costs are in addition to professional document preparation services or attorney fees should you hire a professional to help you.
A typical estate may incur $1,000 to $2,000 in court costs and other mandated fees. A list of common third-party costs in a typical full California probate are as follows:
- Court filing fee for initial Petition: The current court filing fee for a Petition for probate is $435.00 for most courts. Many courts also charge an additional court reporter fee of $30.00. The counties of Riverside, San Bernardino and San Francisco charge slightly higher fees.
- Lodging Will – Most courts charge a fee of $50 to lodge the original will.
- Newspaper publication – The fee charged by each newspaper varies. Sometimes there are several choices of newspapers that are proper for publication, allowing a person to shop around for the cheapest one. Other times, there may be only one choice. The average fee for publication is $250, however with smaller newspapers, the fee can run as high as $600-$700.
- Certified copy of Letters – approximately $25 per certified copy. A representative should get 2-3 certified copies of the issued Letters.
- Probate Referee – The probate referee is the person who appraises the assets of the estate. They are allowed to charge statutory fees of .01% of the gross value of all assets they appraise. In addition, they can charge nominal fees for mileage and copies.
- Court filing fee for Petition for Final Distribution – This fee is the same as for the initial Probate Petition, currently $435.00 for most courts. Many courts also charge an additional court reporter fee of $30.00. The counties of Riverside, San Bernardino and San Francisco charge slightly higher fees.
- Certified copy of Order – Approximately $25
- Recording Fee – Approximately $30-$50.
California was the first state to adopt the “no-fault divorce” concept. This means that the grounds for California divorce are simply “irreconcilable differences.” In effect, this simply means that a married person who wants to end the marriage can do so, even if the other spouse wants to stay together. In the past, most states only granted divorces on fault grounds, but today all states have adopted a form of no fault divorce. In a no fault divorce, neither party is held responsible for the failure of the marriage. This means that the grounds for California divorce are not based on adultery, cruelty, abandonment, mental illness, or criminal conviction, and such allegations will not prove or impose any extra advantage in the outcome of the divorce proceedings to the aggrieved spouse.
The executor or estate’s personal representative has a duty to administer the decedent’s estate. Administration of the estate includes locating the decedent’s assets, managing the assets to prevent losses, paying bills for the estate, filing necessary tax returns, preparing an inventory of the assets, locating heirs and beneficiaries, and other duties. The role of the executor or personal representative is to tie up all the loose ends of the decedent’s financial affairs and to distribute the estate to the beneficiaries.
A quick reference list of the duties of the executor or personal representative include:
- Take possession of all estate’s property insofar as practicable. Joint tenancy property, life insurance proceeds and retirement plan benefits (unless payable to the estate) are not included in the property under the jurisdiction of the probate court;
- Collect all dividends, interest and other income, and deposit all such items in an interest-earning estate bank account (or accounts) until the estate is closed;
- Keep a detailed account of all your receipts and disbursements for the estate; List the date, source, and amount of each receipt and the date, nature of payment, and amount of each disbursement;
- File all tax returns and pay all taxes – please consult with a tax specialist in this regard; and
- Keep estate property adequately insured please consult with an insurance specialist in this regard.
First, keep in mind that the mandatory Preliminary Disclosures (Step 2 in our process) are only required to be exchanged by both parties if they are signing a Marital Settlement Agreement or the matter goes to a full trial. If the other spouse does not file a formal Response to the Petition AND a Marital Settlement Agreement is not being signed, the case can go ahead without the non-filing spouse completing this step. On the other hand, the Petitioner always must complete the preliminary disclosures. The final disclosures can be mutually waived by both parties if they are signing a Marital Settlement Agreement. The final disclosures can also be waived by the Petitioner if the matter is proceeding by default without a Marital Settlement agreement.
If you and your spouse agree on all the issues, there is really no reason they would have to file a formal Response to the Petition. The reason people file a Response is to protect their interests in the process and let the court know there is a dispute about marital issues. When a Response is filed, the party will need to pay a court filing fee (currently $435). If the parties know they will be signing a Marital Settlement Agreement or if there are no issues that need to be addressed (short-term marriage with no assets or debts to be divided and no children), then there is simply no reason for a Respondent to file a formal Response with the court. However, if there is any question about the parties reaching an agreement, then a Respondent may want to file a Response to protect their interests so that a default cannot be taken against them.
Since there is no termination date in a legal separation, a Judgment of Legal Separation can be submitted for processing 31 days after the date of service. This is based on the parties signing a Marital Settlement Agreement or the matter proceeding by way of default. The amount of time it takes the court to process the Judgment will vary but can be as quick as 2 weeks or as long as several months. Once a Judgment of Legal Separation is entered, the case is completed.
Keep in mind that the parties remain legally married in a legal separation. Therefore, if the parties later decide they want to proceed with a divorce proceeding, they will need to refile an entirely new proceeding with another court filing fee.
There is no imposed “deadline” for two people to complete a divorce or legal separation but the courts do not want cases sitting idle and will ultimately dismiss the case if there is no activity over a long period. There are usually deadlines to file the Proof of Service and to file proof of completing the mandatory preliminary disclosures. Sometimes courts will set follow-up status conference dates when the Petition is filed to make sure the case is moving along. Refer to your paperwork for a court notice about scheduled status conference dates. If the actions stated in the notice have not been completed, the Petitioner and/or Respondent may be required to appear before the Judge and explain the delay.
The residency requirement for California divorce provides that at least one of the spouses has to have been a resident of the state of California for at least six months before filing the divorce petition. You must also live in the county where you file the divorce petition for at least three months before filing. If neither spouse meets the six month residency requirement for California divorce, they can file a legal separation and then amend the Petiton at a later time once they have met the residency requirements.
Anyone who winds up a deceased person’s affairs must see that all legitimate debts are paid. Claims are received two ways – formally and informally.
At the formal level, the Notice of Petition to Administer Estate published in the newspaper gives legal notice to all creditors to file their claims within four months after issuance of the letters. In some circumstances, however, a creditor may file a claim after the four-month period has expired. Claims must be filed with the court and served on the personal representative, or the claims will be invalid. In addition, written notice must be given within four months after letters are issued to all known or reasonably ascertainable creditors and you must continue to give notice as you become aware of new creditors.
Informal claims are made when bills come to the decedent’s last address. Probate Code §10552 allows you to pay the debts at your discretion without court approval or without requiring a formal claim if you have independent administration authority. In addition, when there has been a written demand for payment, Probate Code §9154 allows you to pay debts incurred by the decedent before death within 30 days after the claim period ends without requiring a formal claim, unless for some reason you dispute the amount or legitimacy of the debt.
An annulment always requires a court hearing. If the other side does not file a Response to the Petition for Annulment, a hearing can be requested 30 days after the date of service. At the hearing, a Judgment can be entered if the annulment is approved and the case is completed at that time. There is no future “termination date” and parties would be able to remarry immediately.
Once you file the divorce petition and serve it on your spouse, the earliest effective date of termination of marital status will be six months and 1 day from the date your spouse was served the divorce papers. The actual Judgment can be entered prior to this termination date and can be submitted to the court for processing any time starting 31 days after your spouse was served.
As an estate representative, you are entitled to compensation for services, referred to as “commissions” which are paid out of the estate assets. You may request or waive the commissions in the Petition for Final Distribution. The amount of commission is based on the gross value of the probate estate as follows:
|4% of the first||$100,000|
|3% of the next||$100,000|
|2% of the next||$800,000|
|1% of the next||$9,000,000|
|½% of the next||$15,000,000|
|“reasonable amount” for everything above||$25,000,000|
If you are the sole beneficiary, it is probably unimportant whether you claim the commissions or not since you will receive all of the estate anyway. However, if there are several beneficiaries and you have done all the work, you may want to discuss whether you will claim or waive the commissions with the other beneficiaries. If commissions are paid to you, they are treated as taxable income and you must report them on your personal income tax return.
There are several ways divorce, legal separation or annulment papers can be served on the other party.
Notice and Acknowledgment of Receipt: In most of our cases, the other party simply voluntarily signs a Notice and Acknowledgment of Receipt. By signing this form, they voluntary accept service of the papers. Signing this form does not mean they agree with what the Petition asks for, but simply avoids having to be formally service by a process server. Since the divorce “clock” starts on the day of service, if your spouse has been provided with the paperwork and a Notice and Acknowledgment of Receipt but is delaying returning it, you may want to have them formally served.
Formal Service: If a person is not willing to sign a Notice and Acknowledgment of Receipt, you should arrange to serve them by a process server. The fee for this service will vary but usually costs between $75-$150. If attempt has been made for serve a party through a process server and they are unsuccessful, you may need to ask the court permission to serve them by publication.
Service by Publication: Sometimes a spouse goes missing and their whereabouts are unknown. The court will allow a party to serve their spouse by publication after showing that they have made every effort to find them. Efforts include 1) investigative report by private investigator 2) request for forwarding address with post office 3) internet and social media search and 3) contacting relatives and friends. Most courts will accept a professional investigative report but other courts require every effort to be made before approving an application to serve by Publication.
When a divorce Judgment has been entered, there are two important documents.
- Judgment (FL-180)
- Notice of Entry of Judgment (FL-190)
The Judgment has the details of the division of assets, debts, child support, custody, visitation, etc. If the parties sign a Marital Settlement Agreement, that is typically attached to and is a part of the Judgment document. This document would be considered the divorce decree of Judgment.
The Notice of Entry of Judgment is simply a Notice of court action. This document has the date of termination of the marriage and lets both parties know that the case is now considered concluded by the court.
If many of our cases, the Judgment is entered months before the termination date of the marriage. Be aware that the court will not send any subsequent documentation to the parties regarding the termination date. The termination date will simply pass and at that point the parties are free to remarry.
Do you have to appear in court for divorce? Probably not, if you and your spouse can agree to all terms of the divorce: child custody and visitation, property division, spousal and child support etc. When the parties agree, the case can usually be settled as a non-contested divorce without ever appearing before a judge. A Marriage Settlement Agreement (MSA) is presented to the court for approval by the judge that outlines all the specifics of the above items. The judge will grant the Final Judgment incorporating all the elements of the MSA without ever seeing the parties in person.
If you and your spouse cannot or do not agree and your spouse does not file a Response to the Petition for divorce, it is possible to get a unilateral Judgment by default. There is extra paperwork that the court will need if there are issues that must be addressed in the Judgment such as child support, child custody and visitation, or the division of community property and debt. A party still will not have to appear in court to get a Judgment, but it will be up to the Judge to sign and approve the proposed Judgment terms because the court wants to be sure that the party who has not appeared in the case is being treated fairly and equitable.
Assets that are solely in the name of the decedent are generally probate assets. Assets that can transferred through pay-on-death provisions are not considered probate assets. For example, if an asset is owned in joint tenancy (but not if it is owned in tenancy in common) or there is a named beneficiary designated to receive the asset after death of the owner, these assets are not part of the probate state. When pay-on-death designations have been made, the asset avoids probate. All other assets are part of the estate and must be probated in California if the total value exceeds $150,000. If there is a surviving spouse, however, a formal probate can usually be avoided with a spousal property petition.
Separate property is typically property that you owned before you got married. It also includes property that you inherited, even if you inherited it after you got married. Property that was acquired after the marriage but may be titled in only one of the parties’ names is considered community property, not separate property.
Joint property (community property) is property that you acquired with your spouse during the marriage, no matter if it is only in the name of one of the parties. Keep in mind, however, that a community property interest in separate property can be later acquired by a spouse in some situations. For example, if one party had a rental property before they were married, but joint/community funds were used to take care of that property (mortgage payments, taxes, maintenance, etc), an unrecorded community property interest for the spouse that is not on title may accumulate a community property interest in that property.
A default judgment is an easy way to get a final divorce judgment, and can be obtained when the other spouse does not formally file a Response to the Petition. A “Default Judgment” can occur when the other spouse (the respondent) does not formally respond to the Summons and Petition for Dissolution. When a case proceeds by way of a default judgment, the other party does not have to pay a “first appearance fee” which is now $435.00. It should be noted, however, that in most default judgement cases, the parties mutually agree to resolve all of their issues surrounding their marriage. Their agreement is formalized in a marital settlement agreement which is then attached to the Judgment and becomes a court order.
Sometimes, however, the parties do not sign a marital settlement agreement. Perhaps there are no assets or debts to divide and no issues of child custody, visitation, support or spousal support. In this situation, there is no need for a marital settlement agreement. When there are no assets or debts to divide and no other issues to be addressed, the judgment paperwork is fairly simple.
In other situations, the other spouse may be refusing to cooperate. When this happens, obtaining a default judgment is a little more complicated and requires extra paperwork to address the issues of assets, debts, children or support.
California law requires financial disclosure in divorce. This means that both parties are mandated by law to exchange financial information which includes a statement of assets and debts and community and separate property. There are two disclosures that are required under California law, the preliminary disclosure and the final disclosure. When the parties sign a marital settlement agreement, the preliminary disclosures between the parties cannot be waived under any circumstances. If there is no marital settlement agreement and the matter is proceeding as a default case, the Petitioner will have to complete thee mandatory preliminary disclosure but can waive Respondent’s preliminary disclosure. Failure to properly complete the preliminary disclosure process could result in a final Judgment being later set aside. The final disclosure can be mutually waived by both parties.
If a person dies without a will or trust, their estate will be distributed according to California intestate succession laws. Generally speaking, intestate succession laws in California state that a person’s estate will be distributed in the following order:
3. Parents (if you have no children)
4. Siblings (if you have no children or parents)
Additional information regarding intestate succession can be found here.
In order to complete the California divorce process, the other party must be provided legal notice of the divorce proceedings. This can be done by 1) voluntary acceptance of the documents, 2) personal service of the documents, or 3) legal publication.
Using Investigator in California Divorce To Locate Spouse
If you have filed a California divorce, cannot find your spouse and you want to go ahead with the process, you may be able to serve them through legal publication. In order for the court to allow one party to serve the other party through legal publication, attempts must be made to find the missing spouse. This is typically done by hiring an investigator (usually approximately $100-$150) to try to find a current address for the missing spouse. The investigator will give a formal report of their investigative results and in many cases, will find a valid address for personal service.
Serving by Publication in Divorce When You Cannot Find Spouse
In some instances the investigator may not be able to find a viable address for service and a spouse cannot be found. At that point, application can be made to the court showing what attempt has been made to find the other party and ask that the court allow the party to be served through publication. This means that the Summons will be published once and week for 4 weeks in a newspaper approved by the court to offer notice to the missing spouse. Service by publication is complete at the end of the 28th day after the first date the document is published in the newspaper. If at any point during the 28 days of publication you find your spouse or partner’s address, you must have someone 18 or older mail a copy of the documents to him or her and file a Proof of Service by Mail (Form FL-335) and return to you to file with the court.
Letters can be more easily understood as being the estate representative’s “proof of authority” as the estate representative in a probate proceeding. Letters Testamentary are issued to the estate representative when the decedent had a will. Letters of Administration are issued when the decedent did not have a will. Letters are issued by the Court clerk and are sort of like the representative’s “Driver’s License” in a probate proceeding. Letters can be presented to banks and other entities that demand court proof that the person has been court authority to act on behalf of the decedent and their estate.
Letters are issued to the estate representative after the first hearing. It is the responsibility of the estate representative to go to the court Clerk’s office after the Order for Probate has been signed by the Judge and filed to get several certified copies of the Letters. The representative will be required to provide a certified copy of the Letters to banks and other entities to substantiate their authority as estate representative and administrator.
After Letters are issued in a California probate, there is a four-month waiting period before the estate may be closed and distributed, during which time the creditors are allowed to file their claims. During this time, all bank accounts in the decedent’s name should be transferred to estate accounts in your name as the estate representative. All money received during the probate process should be deposited into the estate checking account and expenses of administration such as court costs and publication fees should be paid from the estate account. Detailed information should be kept about each deposit.
The enforcement of a retirement plan division in divorce requires the parties to file a Qualified Domestic Relations Order (QDRO) with the court . A copy of the filed QDRO is then given to the Plan administrator. The QDRO will outline the division of retirement benefits according to the Judgment of divorce or legal separation. Typically the divorce Judgment will explain how the retirement benefits are to be divided. Most Plans provide a package of instructions regarding the Plan’s language requirements for a QDRO. A draft of the QDRO is sent to the Plan Administrator for pre-approval. Once the QDRO has been pre-approved by the Plan Administrator, the QDRO is signed by both parties and submitted to the court for filing. Most Plans require receipt of a certified copy of the filed QDRO before they will divide the retirement benefits pursuant to the provisions of the retirement plan division in the divorce.
In larger counties, after a petition is filed, someone from the court examines the probate petition before the hearing to see if it is complete and conforms to certain requirements. Notes and notations are made by the examiner several days before the hearing. Often you can access these probate notes on line through the court’s website.
If the notes indicate that additional information is required or corrections should be made, you may prepare a supplement to the petition providing the necessary information and file it before the hearing. It is quite common for the probate notes to reflect deficiencies or request additional information that requires the filing of a Supplement to the Petition. Sometimes there is adequate time to address the probate notes prior to the scheduled hearing.
Whether the case is filed by an attorney or a petitioner in pro per, only about 20% of all probate cases filed are approved on the first hearing.
Although only about 20% of all probate filings get approved at the first hearing, if your case is one of the lucky ones and all goes well, the Order for Probate will be approved. At that point, Letters can be issued b the Court Clerk. “Letters” is the key document that gets the probate proceeding moving along. “Letters” is the document of authority that gives the personal representative to authority to manage the assets of the estate and perform their other duties.
If there are deficiencies or requested supplemental information that were not able to be addressed prior to the court hearing, the court will continue the matter to a future date to allow a supplement be filed. This is quite common, and a Petitioner should not be alarmed when this happens in their case. It is important, however, to pay particular attention to what deficiencies or other information the court is requesting. You can then relay this information to the person assisting you with your probate paperwork, assuming you are representing yourself in the case.
Ideally, if the court approves the Petition, the Petitioner should be able to get a conformed and file-stamped copy of the Order for Probate and Letters immediately after the hearing. These two documents are very important, and every effort should be made to get them as soon as possible. It is recommended to get 2-3 certified copies of the Letters, as well as a regular file-stamped copy of the Order. Some courts, however, no longer issue the Order for Probate at the hearing. Instead, they mail a copy of the Order several days after the conclusion of the hearing. This revised process causes some problems in that it prevents the personal representative from obtaining the needed certified copies of the Letters when they are at the hearing. The Court Clerk cannot issue Letters until the Order has been processed. As a result, a personal representative may have to return to the court after they receive the filed Order for Probate in the mail to pay for and order the necessary certified copies of the Letters from the Court Clerk.
Corporations are formed pursuant to state law and have shareholders, are managed by a board of directors, and the daily affairs are administered by officers. Similarly, a limited liability company (LLC) has members and may be managed by one or more managers. Most often, both entities must pay franchise taxes, but may have different federal tax liabilities.
Generally, most people form corporations or limited liability companies to shield the shareholders or members and officers or managers from personal liability for the debts and obligations of the entity. There may also be various tax advantages to forming these entities which may not be available for a sole proprietorship or general partnership.
This office cannot provide information as to whether a person should incorporate or form a limited liability company or a partnership. If you are contemplating forming any of these entities you should consult with private counsel about your individual situation.
A “probate referee” appraises certain assets in the estate as of the date of the decedent’s death. After the Order for Probate is signed and the referee appointed by the court, the estate representative is responsible for preparing the inventory of the assets subject to probate for the referee to appraise. This is done on an “Inventory and Appraisal” form with attachments describing the assets owned by the decedent that are subject to probate. The completed Inventory form is sent to the probate referee who will appraise the assets listed on the attachments, place values on the inventory schedule and return for filing with the probate court. Sometimes it is possible to have the court waive appraisal by a probate referee.
This office will perform a non-binding name check for name availability within the state of incorporation. The name check is performed by us at no additional charge where available. Please remember that the final determination is made by the state officials; thus, never rely on a corporate name check until AFTER you have received a copy of your filed Articles of Incorporation, stamped with the state’s approval.
A probate bond is an insurance policy for associated parties of the decedent should the executor breach a fiduciary duty while administering the decedent’s estate during probate.
The bond’s size generally correlates with the estate’s size. For example, per Probate Code § 8482(a)(1)-(3), “the court in its discretion may fix the amount of the bond, but the amount of the bond shall be not more than the sum of:
- The estimated value of the personal property.
- The probable annual gross income of the estate.
- If independent administration is granted as to real property, the estimated value of the decedent’s interest in the real property.”
A bond is not required in the following situations:
- The will waives bond. Prob Code §8481(a)(1). It should be noted that the court may require bond even though the will waives the requirement of bond if:
- All beneficiaries in writing waive bond and the will did not require bond or there is no will. Probate Code §8481(a)(2).
- A trust company is appointed executor. Probate Code §§83, 301(a).
Individuals and unincorporated entities that regularly conduct business using an assumed name (often called a DBA ) must file an assumed name certificate with the county clerk in each county in which business premises are maintained. If corporations, limited liability companies or limited partnerships (entities created by filing with the secretary of state) do business with a name that is different from the name in the organizational documents, they must file assumed name certificates in the county or counties where the registered office and the principal office are located, and must also file with the secretary of state.
Usually property cannot be distributed to minor unless a guardian has been appointed for the minor’s estate. There are some exceptions, however, if the amount to be distributed is small, the decedent’s will names a custodian to receive the minor’s property or the minor has a court-appointed guardian.
If there is no appointed guardian, and the decedent did not nominate a custodian to receive the minor’s property but the total estate of the minor (what the minor already owns plus what they are inheriting) does not exceed $5,000, then money or other personal property being inherited by the minor may be delivered to a parent of the minor. They can hold it in trust for the minor until they reach age 18.
If the minor has no guardian of the estate and the decedent did not nominate a custodian, but the property to be transferred does not exceed $10,000 in value, the personal representative may, under certain conditions, designate another adult as custodian. These conditions are:
- The personal representative must believe the transfer is in the best interest of the minor
- The will must not prohibit the transfer or contain provisions inconsistent with the transfer.
If money is to be distributed to a minor, the court may order that the money be deposited in a bank account, subject to court supervision.
Most representatives will need to open an estate bank account after probate has been filed. Once you open an estate bank account, decedent’s savings and checking accounts, if any, are typically transferred into the estate’s name. In order to open an estate bank account, you will need to present a certified copy of the Letters to the bank. Letters will be issued to you after the initial hearing when the court issues the Order for Probate.
Cash and uncashed checks in the possession of the decedent at the time of his death, and subsequent receipts should be deposited in the estate checking account. Any estate creditor payment should be made by check. Personal representatives should not commingle their own funds with estate funds. Substantial amounts of estate funds should not be kept for any appreciable period in the estate checking account. Instead, funds not required for current expenditures and distributions should be kept in an interest-bearing estate savings account.
Incorporating will not keep another business from using your name. Generally, every business must protect its own business name and the good will that it has acquired from the sale of its goods or services in a specific geographic area. Filing articles of incorporation only prevents the secretary of state from filing a document to create another corporation, limited liability company or limited partnership that has the same, a deceptively similar, or similar name as the entity already in existence.
The probate estate may be closed any time after the expiration of the creditor’s claim period (four months from the date letters are issued) if all debts and taxes have been paid or sufficiently secured, and no problems prevent the estate from being closed. A Petition for Final Distribution if Filed. If the court approved the Petition, the estates assets can be distributed to the heirs or beneficiaries.
Yes. The Secretary of State requires that you use one of the above so that your customers know they are dealing with a Corporation. We will check the name that you are requesting to see if it is available. If the name is not available, we will contact you about your alternatives.
Yes. The business address must be within the state in which you are incorporating. If you are using the registered agent’s address, that will be the address for the business place.
While a few jurisdictions require publication of the corporate name to be published in a newspaper local to the county of the registered agent (Georgia, Arizona, Illinois, and Pennsylvania), most jurisdictions do not require publication unless an existing unincorporated business intends to incorporate without a change in its name; that business must then publish its intent to incorporate in the local newspaper for four consecutive weeks (in most jurisdictions). California does not have this requirement.
Processing times for incorporating a company vary and change constantly depending on the workload at the state office. Please ask one of our representatives for our most current approximation of the current processing time for Articles of Incorporation. Non-expedited processing with the California Secretary of State can often take several months. We offer expedited services with a 5-7 day turn around as well as 24 hour processing for an extra fee.
The registered agent for Service of Process is a person designated by your corporation to accept service of civil documents on behalf of the corporation. They must have an address within the state of incorporation. Anyone who has a street address (NO PO BOXES) within the state of incorporation may act as a registered agent for the corporation. A People’s Choice can act as the registered agent for service for your California corporation or LLC for a low, annual fee.
While most jurisdictions allow the same person to act in all capacities, that person has different responsibilities depending on the capacity in which he or she is acting.
- Vice president
- Secretary (or clerk)
- Assistant secretary
- Assistant treasurer
Although most jurisdictions allow one person to serve in the three capacities of President, Treasurer and Secretary, the person’s responsibility and authority changes through the different officer positions the person assumes. For example, the president is typically responsible for entering into contracts for the corporation, the treasurer is responsible for maintaining and accounting for corporate funds, and the secretary is responsible for observing corporate formalities and maintaining corporate records.
In addition to these required officer positions, a corporation may also have vice presidents and/or assistant secretaries or assistant treasurers.
Typically, the authority and responsibilities of each officer are described in the corporate bylaws and may be further defined by an employment contract or job description.
The president: The president has the overall executive responsibility for the management of the corporation and is directly responsible for carrying out the orders of the board of directors. He or she is usually elected by the board of directors.
The treasurer: The treasurer is the chief financial officer of the corporation and is responsible for controlling and recording its finances and maintaining corporate bank accounts. Actual fiscal policy of the corporation may rest with the board of directors and be largely controlled by the president on a day-to-day basis.
The secretary: The secretary is typically responsible for maintaining the corporate records.
The board of directors is essentially the management body for the corporation.
Responsibilities of the board of directors include establishing all business policies and approving major contracts and undertakings. In addition, the board may also elect the president. Ordinary business practices of the corporation are carried out by the officers and employees under the directives and supervision of these directors.
The directors must act collectively for their votes and decisions to be valid. That’s why directors may only act at a board of directors meeting. This, however, requires certain formalities. One such formality is that the directors must all be notified of a forthcoming meeting in a prescribed manner, although this can be waived or provided for in the corporation’s Articles of Incorporation or bylaws.
For a directors’ meeting to be valid, there must also be a quorum of directors present. A quorum is usually a majority of the directors then serving on the board; however, the bylaws may specify another minimum number or percentage.
The board of directors must meet on a regular basis (monthly or quarterly), but in no case less than annually. These are the regular board meetings. The board may also call special meetings for matters that may arise between regular meetings. In addition, boards may call a special shareholders’ meeting by adopting a resolution stating where and when the meeting is to be held and what business is to be transacted.
The first meeting of the board of directors is important because the bylaws, the corporate seal, stock certificates and record books are adopted.
Board members, like officers, have a fiduciary duty to act in the best interests of the corporation and cannot put their own interests ahead of the corporation’s. The board must also act prudently and not negligently manage the affairs of the corporation. Finally, the board must make certain that it properly exercises its authority in managing the corporation and does not abrogate its responsibilities to others.
This means that the board must be very careful to document that each board action was reasonable, lawful and in the best interests of the corporation. This is particularly true with matters involving compensation, dividends and dealings involving officers, directors and stockholders. The record or corporate minutes of the meeting must include the arguments or statements to support the board action and must detail why the action was proper.
While jurisdictions will vary in their requirements, most states require that there be at least one director and two officers, in a general, for-profit corporation. The required officers are president and secretary. Most states allow one natural person to hold both offices and be the sole director of the corporation. Usually, that one person may also be the sole shareholder. A corporation may not be a director of another corporation.
A Corporation’s “Articles of Incorporation” is the main filing document which begins the corporation’s existence under state law. Once filed, the corporation comes into existence.
The level of complexity for a corporation’s Articles of Incorporation can range from very simple to extremely complex. Generally, most jurisdictions require Articles of incorporation to contain, at a minimum, information about the corporate name, the registered agent, and the corporation’s business address. Requirements vary by state.
Bylaws serve as the internal operating document for the corporation. Generally, Bylaws detail the responsibilities, rights, and duties of directors, shareholders and officers. Currently, states generally do not require that Bylaws be filed.
While many jurisdictions have abolished the requirement of maintaining a corporate seal, many corporations still prefer to maintain a corporate seal as a formality. Corporate seals range in price from $8 (rubber stamp) to about $75 (steel embosser). Your can order your corporate seal through our office. You’ll need the name of your corporation and the date of incorporation before you can order it.
If you plan on opening a bank account under your corporate name, most banks will require that your corporation have a Federal Employers’ Identification Number.
A Federal Tax Identification Number (also known as a “95 Number” or “EIN Number” ) is a number assigned to a corporation or LLC by the Federal Government for purposes of taxation. The Federal Tax ID Number is to a corporation or LLC as a Social Security Number is to an individual. Most banks require that a corporation or LLC obtain a Federal Tax Identification Number as a prerequisite to opening a bank account regardless of whether the company will have employees. This office can prepare your Federal Tax Identification Number Application (IRS form SS4) at your request. Once you receive the prepared application from our office, you may contact the IRS with the completed form and obtain the actual “95 Number” over the telephone in just minutes!
Shares of stock represent ownership of the corporation. Where no shares are issued, no individual owns the corporation. Thus, shares must be issued to those individuals who will own the corporation. While most states have created many exceptions and exemptions from registering a stock issuance with the State or with the SEC for most small businesses, it may be wise to contact the appropriate entity to determine whether you must file a notice of stock issuance on a state or federal level.
Because this office is a non-attorney, legal document preparation service, our company CANNOT be involved with your corporation’s stock issuance. We will provide you with a custom stock certificate that you can use to issue the corporate stock. For help regarding your corporation’s stock issuance, please contact a licensed attorney or the appropriate state entity.
A business corporation must sell shares of stock in order to capitalize the corporation, that is, provide the corporation with its own capital, separate from the money of its owners. This separation provides part of the support for shielding the shareholders from personal liability for the debts and obligations of the corporation.
Shares of stock sold by the corporation represent proportionate ownership interests held by shareholders in the corporation. Par value is a dollar value assigned to shares of stock which is the minimum amount for which each share may be sold. There is no minimum or maximum value that must be assigned. Shares may also have no par value, which means that the board of directors will assign a value to the stock below which the shares cannot be issued.
There is no minimum number of shares that must be authorized in the articles of incorporation. One or more shares may be authorized. However, the corporation may not sell more shares than it is authorized to issue and it must receive consideration in exchange for its shares.
There is no national registration of trade names. Generally, businesses, including corporations, protect their trade names by registering their trade name as a service mark or trademark, if the trade name also functions as a service mark or trademark. Because of the legal complexities involved, we recommend that businesses obtain private counsel to get advice on how to protect a trade name in interstate commerce.