1. The Probate Process. Probate is the process by which the Probate Court handles a deceased person's estate if there is no _trust_; it applies if there is a will only, or if there is no will. (One of the primary reasons for having a trust is to distribute the estate without having to go through probate.) Essentially a probate petition is filed with the Court, creditors are notified, the personal representative lists all of the estates assets and liabilities, a probate referee appraises the assets, any disputes relating to the estate are settled, a final accounting is made, the creditors are paid and then the remainder is paid to the beneficiaries.

a. Time. Probate often takes 8 to 10 months, although it can take even longer. During that time, if the family needs money from the estate, a motion has to be brought and a court order obtained.

b. Terminology. The person handling the estate is called the "executor" if there is a will or the "administrator" if there is no will or no executor is named in the will. "Personal representative" or "estate representative" (or just "representative") refers to either an executor or an administrator.

2. Exceptions to Probate.

a. Trusts. No probate is required if the estate is primarily owned by a trust. Note, though, that in this case if the trust owns real estate one or more filings often need to be made with the county recorders office to remove the deceased's name from the title. If more than $100,000 in gross assets (with certain exceptions, discussed below) are outside the trust, though, then probate may still be needed.

b. Where All Property Goes to the Spouse. If there is no trust covering the property, then it may be possible to file only a spousal petition (versus going through a full-blown probate) if the surviving spouse has 100% unqualified ownership of the real property (meaning there are no co-owners, it is not merely a life-estate, etc.). Usually this requires either a will giving 100% of the property to the surviving spouse and/or the title to any property having been held by the spouses in joint tenancy (with right of survivorship) or community property with right of survivorship. If this is not the case, then a probate is almost always required.

c. Estates Worth Less Than $100,000. If, though, the gross value of the estate is $100,000 or less (without subtracting any liens, debts, deeds of trust, etc.), there are simple procedures for distributing an estate without using formal probate proceedings. Certain items are excluded from the calculation of the $100,000. Some of these are:

i. Joint tenancy property (real or personal);

ii. Community property with right of survivorship;

iii. Half of all other community property;

iv. Life insurance and death benefits (assuming that beneficiaries are named);

v. Real property outside of California;

vi. Any motor vehicles.

vii. Multiple party accounts.

d. Where Probate May Still Be Advisable. Even in these cases, probate still may be appropriate, though, if there are strained family relations, complex investments, large or complex claims by creditors, or an interest in a good-sized business.

3. Estates Where There Is No Will. Where the decedent died intestate (without a will), California law generally distributes the estate as follows:

a. If there is a surviving spouse, that spouse receives:

i. All community property.

ii. As to the decedent's separate property (if any):

(1) All of it if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister.

(2) One half if the decedent has only one child or has one deceased child with issue.

(3) One half if the decedent leaves no issue but leaves a parent or parents - or leaves their issue or the issue of either of them.

(4) One-third if the decedent leaves more than one child, leaves one child and the issue of one or more deceased children, or leaves issue of two or more deceased children.

b. The rest goes first to the decedent's surviving children or, if any of them are deceased, to the children's surviving issue.

c. If the decedent has no surviving children or deceased children with surviving issue, the rest goes to:

i. The decedent's parents, if living.

ii. The decedent's brothers and sisters (or their issue if any of them are deceased).

4. Attorney and Executor Fees.

a. Attorneys' fees for handling a probate are set by California statute and are based on the gross estate, meaning that there is no subtraction for any liens, debts, deeds of trust, etc.

i. The amount is based on a sliding percentage as follows:

(1) Four percent on the first one hundred thousand dollars ($100,000).

(2) Three percent on the next one hundred thousand dollars ($100,000).

(3) Two percent on the next eight hundred thousand dollars ($800,000).

(4) One percent on the next nine million dollars ($9,000,000).

(5) One-half of 1 percent on the next fifteen million dollars ($15,000,000).

(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

ii. For example, if the estate is a house worth $700,000, then the probate fees for the attorney will be $17,000 ($4,000 + $3,000 + $10,000) - regardless of the size of any loans against the property.

iii. If extraordinary services are required, the attorney may be able to recover additional amounts.

iv. This, of course, is a major reason for having a trust so that the estate can be distributed without having to go through probate.

b. The executor of a will is also entitled to the same amount of statutory fees unless the will does no allow them, although the executor can waive those fees if he/she wishes (and family members often do).

5. Bonds. Generally, unless there is a will that designates an executor and waives the bond, the personal representative must post a bond to guarantee that he/she will fulfill his/her duties.

a. If the person is out of state, the Court will generally require a bond even if the will waives it.

b. Even if the will does not waive the bond, if all interested parties request in writing that the bond be waived and the written waivers are attached to the petition, the bond will usually be waived.

c. In estates that require a bond, the Court will generally set the bond equal to the amount of the equity in the property plus the value of the personal property, plus twice the value of the annual income from all estate property.

d. The premium for the bond is often approximately one percent (1%) of this total. Note that most bonding companies will not issue a bond if the personal representative is not formally represented by an attorney.

6. Inventory and Appraisal. One of the first things that the personal representative does is file an inventory with the Court of all the assets of the estate that are covered by the probate. Assets that are not subject to probate (for example, joint-tenancy property with right of survivorship) are not listed.

a. Generally at the beginning of the probate a probate referee is also appointed to make an appraisal of the estate assets. While it is possible to seek a waiver from the Court of the appraisal by the probate referee, good cause must be shown (such as the only items in the estate are the deceased's personal effects, which are minimal, and one piece of real property that has recently been independently appraised).

b. Often the personal representative sends a letter to the probate referee with basic facts regarding each major asset in order to avoid delay and mistakes.

c. The probate referee is compensated by a commission of 1/10 of 1 percent of the total value of the assets appraised, with a minimum fee of $75 and a maximum fee of $10,000. If the reasonable value of the referee's services is more, the referee can petition for a higher amount.

7. Notifying Creditors and Dealing With Creditor Claims.

a. Newspaper Publication of the Petition for Probate. The notice of the petition to administer the estate must be published in a newspaper. In many cases the newspaper can be a free weekly advertising publication. Proof of the publication must be filed with the Court before the hearing on the petition for probate is held

b. Notice to Specific Creditors. The personal representative must give notice directly to reasonably ascertainable creditors before the later of i) four months after the date of issuance of the "letters" appointing the representative or ii) 30 days after the personal representative first becomes aware of the creditor. Proof of the notice to each creditor must be filed with the Court.

c. Time Limits for Creditors to File Claims. Each creditor must file a claim. The general rule is that a creditor's claim is barred if it is not filed by the later of i) four months after issuance of the "letters" appointing the personal representative or ii) 60 days after the date that specific notice is given to that creditor. Creditors must file their claims with the Court and serve a copy on the personal representative.

i. In addition, all creditor lawsuits must be commenced within one year after the date of death. This deadline is extended, though, if the creditor files a timely claim and in certain other limited situations.

d. Allowance and Rejection of Claims. The personal representative must file and serve any allowance or rejection of a claim.

i. If a claim is rejected, the creditor must bring a lawsuit in the proper court within three months of the date of service of the notice of rejection (or within three months after the claim becomes due, if that is later) or the claim is barred. If suit is brought, the plaintiff must notify the personal representative.

ii. If the personal representative does not reject a claim within 30 days after the claim is filed, the claimant may deem the claim rejected and file a lawsuit. The estate cannot be closed while there are unresolved filed claims, so some creditors are content to wait for an eventual approval by the personal representative.

iii. The personal representative and the claimant may agree in writing that to refer the claim to a temporary judge. The hearing on the claim is then heard without pleadings, discovery or jury and the determination has the effect of a judgment.

8. Sales of Real Estate and the Independent Administration of Estates Act. Selling real estate is often the biggest job that a personal representative has.

a. With one exception, if the personal representative (executor) wishes to sell real property that is part of the probate estate, the property can only be sold with Court approval and notice to those who have an interest in the property - and the sales price must be for at least 90% of the appraised value.

b. The one exception is where the personal representative has been given authority to act under the Independent Administration of Estates Act (IAEA) and the property is not being purchased by the personal representative or his/her attorney. In that situation the "at least 90%" rule and the requirement that the personal representative "obtain the highest and best price for the property reasonably attainable" do not apply .

i. The request for authority under the IAEA may be made at any time, though this is usually done as part of the initial petition for probate.

ii. Any interested party can object to the grant of authority, although the Court must grant the authority unless an objecting party can show good cause.

iii. In any case, the personal representative must give notice of the sale to all affected parties. The notice must include all material terms of the transaction, including the sales price and the amount of any commission. Notice need not be given if all interested parties may sign a waiver of notice or a consent to the request for authority.

c. With a sale of one to four units of owner-occupied property located in California where a loan secured by the property is in default, the sale agreement must comply with California's relatively intricate pre-foreclosure sale statutes. To be safe, anyone indicated in any will as receiving an interest in the property, any surviving spouse and anyone receiving an interest under the intestacy laws (if there is no will) should be considered an owner.

9. Account, Report and Petition for Distribution. The personal representative must file the final accounting, a report and a petition for distribution when there are sufficient funds to pay all debts, the time for filing creditors' claims has expired, and the estate is ready to be closed.

a. The requirement of filing an accounting (though not the report or petition for distribution) can be waived if all person entitle to any distribution from the estate sign and file a written waiver or a written acknowledgment of receipt of their share of the estate.

b. With the accounting, the representative accounts for the financial transactions that have happened since his/her appointment (or since the last account, if an account has been filed with the court previously).

c. The representative also must file a report on matters that are not self-explanatory from the exhibits. This includes actions taken under the Independent Administration of Estates Act.

d. Finally, the representative petitions for approval of the accounting, approval of his/her acts, compensation for the attorney and the representative (if allowed) and distribution of the estate.

By: Bruce Methven
Methven & Associates
2232 Sixth Street Berkeley, CA 94710-2219
Phone: (510) 649-4019 Fax: (510) 649-4024
E-mail: admin@methvenlaw.com
Web site: http://www.methvenlaw.com
Copyright 2001-2003 Bruce E. Methven. All Rights Reserved.

In our daily lives, we are always prone to unexpected occurrences, for example, accidents in the roads and in public places. While a few may say, they are lucky to be left untouched by an incident, physically and emotionally, many of these accidents result to personal injuries varying from simple to severe, catastrophic to fatal.

Let us say you were in California and were involved in a car accident, you may suffer not only physical and emotional injuries but also damages to property. Likewise, you may also experience this if you fall victim to accidents in public and work places and even your very home!

Carelessness or malpractice of health/medical service provider, lawyers and other professional service providers can also result to inflicting you with injuries.

When you become a victim of a wrongful or negligent act committed by another person or entity and resulted to injuries and property damages, you have to assert for your rights to recover damages.

California based personal injury lawyers who are experts in handling claims will be your ally in this matter.

Evaluation of your personal injury claim

Your personal injury lawyer will review the facts of the case in order to determine whether it has been another person or entity's wrongful act, which caused your injuries and losses. He or she will assess whether you have the elements of a personal injury claim or not.

Wrongful conduct has three facets:

1. Negligence – this is the most usual starting point in recovering for injuries and losses caused by an accident. According to a rule of law in the principles of personal injury, individuals are liable for each of their careless acts.

2. Intentional misconduct – recovering for damages caused by intentional misconduct may come about when someone hurts you or damages your property intentionally.

3. Strict Liability – companies and individuals could be liable for damages based on the policies of strict liability if they committed activities that are dangerous and detrimental to the well-being of other persons. Conduct of bomb testing, manufacture of potentially dangerous or defective products is an example of circumstances involving strict liability.

The value of your personal injury claim

A highly skilled lawyer who has already attained quite a lengthy experience in handling personal injury claims can give you an estimation of what your claim would be worth. Here are the following compensations you may be entitled to receive:

- Medical treatment of injuries / continuous therapy for trauma
- Lost wages and future earnings if you will be unable to take up your old job in the aftermath of the injury
- Cost of replacing and repairing damaged properties

Other compensation that may given an estimation of monetary value:

- pain and suffering
- physical handicap or disfigurement
- embarrassment
- loss of enjoyment in life
- other such psychological injuries

Sources of compensation

The personal injury claim would not be worth it if the person who had been liable for the injuries sustained becomes unable to pay for the damages. The personal injury lawyer has the responsibility to identify the insurance and assets available that can compensate the damages caused by the injuries.

In processing personal injury law claims in California and elsewhere, it is the responsibility of the one filing the claim to provide sufficient proof of the liability of the defendant. Thus, the personal injury lawyer must be systematic and organized during the procedure of obtaining your medical records of your injuries, police reports of the accident, interviewing witnesses, and acquiring other pertinent information in proving the claim.

Settling your claim and recovering satisfactory compensation without having the case progress into a lawsuit is a successful enough feat for any injury attorney.

By: Carla C. Ballatan
Our Los Angeles personal injury claim attorneys are experts concerning the processing of clients' California personal injury claims.

The U.S. Food and Drug Administration (“FDA”) is one of the country’s oldest consumer protection agencies. The FDA’s purpose is to promote and protect the public’s health by trying to ensure that safe and effective products reach the market; to monitor products for continued safety after they are in use; and to help the public get accurate, science-based information regarding health issues. The Center for Devices and Radiological Health (“CDRH”), a division of the FDA, must approve a medical device before it can be marketed to the general public. The CDRH is responsible for testing and approving every medical device to ensure that it is both safe and effective. The CDRH may discover a defect that prevents approval. If the device is approved and a defect is then discovered, the FDA may request a voluntary recall by the manufacturer or issue a recall if the manufacturer refuses to comply.

Injury or loss may be caused by a medical device. An individual person who has been injured using a medical device may be able to sue the manufacturer, wholesaler, company or person that sold the product for damages. A lawsuit can be brought against any person or company that was involved in producing or distributing the medical device. There are three main categories in which evidence can be shown to prove a device is defective:

• Design defect-There is a flaw in the conceptual design of the device.
• Manufacturing defect-There is a specific defect which occurs during the manufacture of the device.
• Warning defect-The device is not accompanied by adequate or reasonable warning or there has been a failure to educate the consumer at to potential and latent dangers regarding the device.

In some cases, the manufacturer of a medical device will clearly inform the physician community about the risks of a device and it then becomes the obligation of the physician to communicate those risks to the patient.

These cases are subject to a statute of limitations which is the fixed period of time in which a person must file a claim. The statute of limitations usually begins when the patient’s illness or injury is discovered, rather than when the injury happened. If a manufacturer, wholesaler or company that produced or sold the device is found at fault, a court can order them to pay damages. Depending on the state where the injury occurred, the following damages may be allowable:

• Economic damages: Compensation for monetary losses such as past and future medical expenses, loss of past and future earnings, loss of employment or business opportunities.
• Non-economic damages: Compensation for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life.
• Punitive damages: Damages awarded for the purpose of punishing a party for intentional or reckless behavior or actions motivated by malice.

By: Melissa Neiman, M.D., J.D.
http://www.mneiman.com
PROFESSIONAL PROFILE:

I am a Board certified neurosurgeon and licensed attorney authorized to practice medicine and law in Texas. During my fourteen year private practice of neurosurgery I was involved in medical malpractice litigation as a consultant, case reviewer, and expert witness. As a result of that experience I decided to become an attorney. Since completing law school I have been practicing law and using my medical background in numerous areas including, inter alia, medical malpractice and healthcare fraud. My combined medical and legal experience places me in a unique position to offer a wide range of medical-legal consultation to a variety of clients.

Being sued can be an unsettling and frightening experience. However, it you are not careful, it can be a haunting one, even when you win. That is because court records about the lawsuit are available to the public - and in many cases over the internet.

A search of court records, which is an increasingly common part of background checks for jobs or housing, can reveal details of a lawsuit that are embarrassing or unfairly prejudicial. California law provides some protections from being unfairly prejudiced by a civil suit that was dismissed or without merit, but you often need to be proactive in protecting your good name.

There are different rules for different types of cases and different rules for who is providing the information about you. This three part series will examine :
(1) how to seal information from a typical law suit,
(2) the special rules that apply to unlawful detainer actions (evictions), and
(3) what can and cannot be reported and by whom.


To understand how the records of a dismissed court case can cause haunt you consider the following scenario:

Jane, a software engineer, quit her job when she became uncomfortable with her employer over-billing clients. After she quit, Jane told the client about the over billing. Her former employer was infuriated and filed a lawsuit against Jane that claimed Jane defamed the company, stole company secrets and violated an agreement not to quit and compete against the employer. The court case was dismissed when the judge found the lawsuit was without merit.

Jane, who is now looking for a new job and is one of two finalists for a position with a local high-tech company. The company, which is concerned about protecting its technology secrets, performs a background check that searches surrounding counties for civil and criminal court cases. The company sees that Jane was recently sued by her former employer for stealing trade secrets. The company decides that Jane is not the best fit for the job. While Jane cannot prove it, she suspects that the record of the lawsuit cost her the job.

Jane could have eliminated the risk of being unfairly prejudiced if she was proactive and asked the court to seal the record of the dismissed lawsuit. California Court Rule 2.550 provides the constitutional standard and procedure a court will use when someone requests to seal a court record that would otherwise be public. Because of strong First Amendment support promoting public access to court records, sealing a record is an uphill battle.

California courts will use a balancing test in deciding whether or not to grant a request to seal a record. The court weighs the First Amendment right of public access to court records against any “overriding interests” that support sealing the record to determine if the request should be granted. While the Rules do not define what may qualify as an “overriding interest,” a person’s interest in housing or earning income definitely qualifies.

In the scenario above, Jane could have argued to the court that her “overriding interests” included protecting her ability to obtain a job and earn a living. Her argument would be strengthened because the claims in the dismissed lawsuit are taken very seriously by her prospective employers. The court would seal the record and prevent it from ever being disclosed if it found that the threat of potential harm to Jane’s career prospects outweighed the public’s interest in knowing about the dismissed lawsuit.

If you do not have the time or resources to petition a court to seal the record, you might be able to take advantage of special rules based on the nature of the case, or you may even be able to prevent a credit agency from reporting it. These options are discussed in part 2 and part 3 of this series on Keeping Old Law Suits From Haunting Your Future.

By: Mathew Higbee
By Mathew Higbee, the founder of RecordGone.com, a law firm that specializes in record clearing. Law clerk Melanie Bronny contributed to this article. court to seal the record.