Advance Health Care Directive:

Advance health care directives or advance directives are instructions given by an individual specifying what should be done for his or her health in case he or she is no longer able to make decisions. A living will is one type of advance directive. It is often accompanied by a specific type of power of attorney or health care proxy.

These are legal instruments that are usually witnessed or notarized. It is often encouraged that people complete both documents to provide the most comprehensive guidance regarding their care.[1] Studies have also shown that adults are more likely to complete documents written in everyday language.[2] One example of a combination document written in everyday language is the Five Wishes advance directive.

Adoption: A legal proceeding that creates a parent-child relation between persons not related by blood; the

adopted child is entitled to all privileges belonging to a natural child of the adoptive parents (including the right to inherit).

Affidavit–Death of Joint Tenant: Used by surviving tenant with rights of survivorship, as part of the process of assuming full title to the property. Adapt to fit your circumstances.

Affidavit–By Surviving Spouse–Death of Spouse: Used when one spouse has passed away. If the two spouses held title to real estate as community property in the State of California, file this Affidavit of Surviving Spouse. The Affidavit must be filed 40 days after the decedent’s death to protect the interest of the successors in title and that of other parties with an interest in the property (such as title insurers). The Affidavit sets out the details of the parties’ marriage, and states that no election to probate the deceased’s interest in theproperty has been or will be filed.

Affidavit–Death of Trustee: Affidavit – Death Forms are used to change the title on real property after thedeath of a joint tenant, trustee or trustor.

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Affidavit for Collection of Personal Property: In certain circumstances, personal property may be transferred to the decedent’s successors without a formal probate. If the decedent’s estate qualifies under Sections 13100-13115 of the California Probate code, the person(s) entitled to the property must present an  Affidavit for Collection of Personal Property to the person or institution having custody property, requesting that the property be delivered or transferred to the successor.

Personal property may be collected using an Affidavit for Collection of Personal Property if:

• At least 40 days have elapsed since the death of the decedent
• No administrative proceedings are pending or have been conducted for the decedent’s estate
• Estate does not exceed $166,250 in value. Many types of property are excluded when calculating the value of the estate.

Although the Probate Code states that a declaration under penalty of perjury is sufficient, many institutions require a notarized affidavit, especially when securities are involved. Contact the institution to determine if notarization is necessary.

If there are several assets to be transferred, they may all be included on one affidavit, or a separate affidavit may be used for each. If more than one person is entitled to inherit a particular asset, all beneficiaries must sign a single affidavit.

Affidavit Re Real Property of Small Value: If an estate contains real property not exceeding $20,000 in date-of-death value (such as an unimproved desert lot), the successors of the decedent may obtain title to the property by filing an Affidavit re Real Property of Small Value with the superior court and then recording a certified copy with the County Recorder.

Amendments to Trusts: An amendment to a trust instrument that amends or replaces, a previously executed trust instrument. Amendments may add or revoke small provisions (e.g., changing successor trustees), or may completely change the majority, or all, of the gifts under the trust. Each amendment must conform to the same legal requirements as the trust instrument, such as the signatures of the settlors must be notarized.

Annulment/Nullity: Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place (though some jurisdictions provide that the marriage is only void from the date of the annulment). In strict legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. The process of obtaining such a declaration is similar to the annulment process. Generally speaking, annulment, despite its retrospective nature, still results in any children born being considered legitimate in the United States and many other countries.

Assignments: An assignment (Latin cessio) is a term used with similar meanings in the law of contracts and in the law of real estate. In both instances, it encompasses the transfer of rights held by one party—the assignor—to another party—the assignee. The legal nature of the assignment determines some additional rights and liabilities that accompany the act.

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Beneficiary Designations: You should know that decisions you have already made regarding title to property will determine distribution of that property in the future. Will provisions cannot alter those decisions. A beneficiary designation is a binding contractual obligation and a Will provision will not alter that designation.

Beneficiary designations in life insurance policies, retirement plans, annuities, bank accounts with a named “Due on Death” (DOD) beneficiary, etc., will determine who receives those moneys upon your death, not your Will.

Bill of Sale Without Warranties: A bill of sale without warranties means that the seller transfers all of the Seller’s right and title of a particular item in “as-is” condition. This means with means that it is sold with all faults and the Seller has not guaranteed the condition of the property or that the property is free from defect.

Unless the Seller adds a provision to the bill of sale that the Seller warrants the condition for a certain number of days, the transfer is generally without warranties. However, the “as-is” language clarifies that no written or verbal warranties were made to the Buyer and is used to protect the Seller.

Caregivers Authorization: This is a signed and notarized document that:

• authorizes the caregiver to enroll the child in school
• authorizes the caregiver to make decisions about the child’s medical, dental, or mental health care;
• has no effect on parental rights;
• is valid for up to one year.

A Caregiver’s Authorization Affidavit is a legal paper that allows a caregiver to enroll the child in school. The caregiver can also make decisions about the child’s medical, dental, or mental health care. A Caregiver’s Authorization Affidavit does not give the caregiver legal custody of the child. It does not terminate the parent’s legal rights. If a parent does not agree with the caregiver about the child’s care, the parent still has the final word, unless the child’s life, health, or safety is threatened. If the child stops living with the caregiver, the caregiver must tell anyone who has a copy of the Affidavit.

Certification of Trust: The trustee may present a certification of trust to any person in lieu of providing a copy of the trust instrument to establish the existence or terms of the trust. A certification of trust may be executed by the trustee voluntarily or at the request of the person with whom the trustee is dealing.

Claim for Exclusion from Reassessment for Transfer between Parent and Child: Propositions 58 & 193 constitutional initiatives provide property tax relief for real property transfers between parents and children and from grandparents to grandchildren. Collectively, they make it easier to keep property “in the family.”

In general, Proposition 58 states that real property transfers, from parent to child or child to parent, may be excluded from reassessment. Proposition 193 expands this tax relief to include transfers from grandparent(s) to grandchild(ren). In both cases, a claim must be filed within three years of the date of transfer to receive the full benefit of the exclusion.

Claim of Exemption for a Wage Garnishment: A judgment debtor can oppose a wage garnishment if he or she is suffering a financial hardship. This is to be done within 10 days of receiving a copy of the Wage Garnishment. The garnishee must fill out a Claim of Exemption (Judicial Council Form WG-006) and a Financial Statement (Judicial Council Form WG-007). The judgment debtor can review Judicial Council Form EJ-155 which is a listing of the Exemptions from the Enforcement of Judgments for property or income that is exempt from a levy. Two 2 copies of the Claim of Exemption and the Financial Statement are given to the levying officer in the case (like the sheriff/marshal or process server) within 10 days of receiving the Notice of Levy. The judgment debtor makes an extra copy to keep for his or her records.

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The employer will hold on to the money garnished until 10 days has passed in which time the judgment creditor has to oppose the judgment debtor’s claim of exemption. If the creditor doesn’t oppose the claim of exemption, the employer will return the wages to the debtor.

If the creditor opposes the claim of exemption, a Notice of Opposition to Claim of Exemption and Notice of Hearing on Claim of Exemption will be sent to the judgment debtor with a court date for a judge to make a decision. If the judge agrees with the claim of exemption, the debtor will get the money back. If the judge agrees with the creditor, the employer must send the money to the creditor every month.

For Judicial Council Forms, go to http://www.courtinfo.ca.gov/forms/.

Claim of Exemption for a levy or other non-wage garnishment:

A Claim of Exemption is a form a debtor files with the levying officer (like the sheriff or marshal) explaining why the property or money that the creditor wants to take should be exempt (excluded). There are laws and rules that say which types of incomes or property are exempt. See the exemptions in Exemptions from the Enforcement of Judgments (Judicial Council Form EJ-155) to find out what property or income is exempt from a levy.

The judgment debtor must file a Claim of Exemption (Judicial Council Form EJ-160) and a Financial Statement (Judicial Council Form EJ-165) within 10 days of receiving the Notice of Levy.

The Claim of Exemption is sent to the levying officer (like the sheriff/marshal or process server) within 10 days of receiving the Notice of Levy. The levying officer will hold on to your property or money until 10 days go by.

If the creditor doesn’t oppose the claim of exemption, the levying officer will return the property or money to the judgment debtor.

If the Creditor opposes the claim of exemption, a Notice of Opposition to Claim of Exemption and Notice of Hearing on Claim of Exemption will be sent to the judgment debtor with a court date set.

At the hearing, the judge will make the final decision. If the judge agrees with the judgment debtor, the money or property will be given back to the judgment debtor. If the judge agrees with the creditor, the levying officer will turn over the money or property to the creditor.

For Judicial Council Forms, go to http://www.courtinfo.ca.gov/forms/.

Codicil to Will: A codicil is a document that amends, rather than replaces, a previously executed will.[1]

Amendments made by a codicil may add or revoke small provisions (e.g., changing executors), or may completely change the majority, or all, of the gifts under the will. Each codicil must conform to the same legal requirements as the original will, such as the signatures of the testator and, typically, two or three (depending on the jurisdiction) disinterested witnesses.

When confronted with testamentary writings executed after the date of the original will, a probate court may need to decipher whether the document is a codicil or a new will. As a rule of thumb, if the second document neither expressly revokes the prior will in its entirety nor supersedes it for all purposes by making a complete disposition of the testator’s property, it will be presumed to be a codicil, leaving the validity of the earlier will unchanged with respect to the property whose disposition the codicil does not address.

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Conservatorship: Conservatorship is a proceeding where the court appoints an individual to protect and manage the affairs of someone (an adult) who is not capable of managing his or her own affairs due toincompetence because of mental or physical disability.

Copyright: Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions copyright arises upon fixation and does not need to be registered.

Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses which are covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others.

Corporation: A form of business entity. If you maintain the corporation’s legal status properly, and avoid personally guaranteeing the corporation’s obligations, your corporation, and not you, would be solely responsible for its own obligations.

The single most important reason people use the corporate form of doing business is to safeguard the personal assets of the owners — the shareholders (or stockholders) of the corporation — against potential claims of creditors. Sole proprietors and general partners in a partnership are personally liable for all debts and obligations of the business, such as loans, accounts payable, and defective products. Stockholders typically are not liable for ordinary debts and obligations. Other potential benefits of incorporating (even for one-person operations):

Corporate identity: the sense of image, stability, sophistication, credibility, and permanence results from incorporating, no matter if you start with one person or several.

Raising capital: you can issue stock to investors to raise capital which may be more advantageous than borrowing and making interest payments. A corporation can also issue and sell additional stock.

Continuous life: a corporation, can survive its founders, provided it complies with ongoing state and federal paperwork and pays the annual filing fees.

Its shares can be transferred. Stock often can be pledged, sold, given away, used as security, or given as bonuses.

Tax savings: corporations are taxed at a lower rate than individuals. Also, they can own shares in another corporation and receive corporate dividends 80% tax-free.

Criminal Expungement or Dismissal: Through “expungement” or “sealing,” a case may be dismissed or the criminal records may be completely destroyed, or they may be “sealed” so that only certain people can see it.

If you were convicted of a misdemeanor and have completed your sentence you may be eligible to have your conviction dismissed. With more than 80 percent of employers conducting background checks, dismissal can be a great investment.

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Once expunged from your record, will receive a court order dismissing your case and you can truthfully state that you do not have a conviction.

If you were convicted of a felony and have completed your sentence you may be eligible to have your conviction expunged. With more than 80 percent of employers conducting background checks, expungement can be a great investment. Once expunged from your record, will receive a court order dismissing your case and you can truthfully state that you do not have a conviction.

Certain felony offenses are eligible to be reduced to a misdemeanor. This will allow people to state they are convicted of a misdemeanor instead of a felony and possibly restore their firearm rights.

If your probation is preventing you from reaching your potential, you can petition the court to terminate your probation.

If you are looking to have your record expunged, but you are still on probation, this can be a way to get the process started.

California law allows the court to modify or terminate your probation if you have completed all the requirements such as paying fines and attending all classes. Once terminated, you are relieved of the duties imposed by probation and you can immediately file for expungement and get on with your life.

If you have a juvenile record, it maybe able to be sealed. Sealing means that records held by the police department, the court, the district attorney, and the probation department will be sealed and treated as if they never existed. If someone asks these agencies about a sealed record, the law requires the agencies to answer, “we have no record of that matter.”

The law says that you can legally say that you were not adjudicated or arrested.

If you are not eligible to have your juvenile record sealed then you may be able to have the juvenile adjudication set aside so it is dismissed. This will dismiss the case so that you are released from all penalties and disabilities resulting from the offense or crime that was committed.

Certificate of Rehabilitation: This is the ultimate statement by a court that you are now an “honest” person of “good character” who is known to “obey the laws of the land.” It tells employers and licensing agencies that you truly have put the past behind you and are ready to reach your potential. When the certificate is granted, a recommendation for pardon is sent to the governor

Deeds: A deed is essentially a piece of paper that transfers interest in land from one person, called the grantor, to another, called the grantee. It’s essentially a real estate contract. To be legally effective, it must be signed by the grantor and describe the land being conveyed. A grant deed creates two implied covenants under CC

• 1113, in which any conveyance passes from the grantor for himself and his heirs to the grantee, his heirs and assigns an estate of inheritance or fee simple unless restrained by express terms contained in such conveyance. A quitclaim deed, sometimes erroneously referred to as a “quick claim deed” or “quit claim deed,” is one type of deed. The quitclaim deed transfers whatever interest the grantor has in the property at the time of the deed–legal, equitable or inchoate–to the grantee.

Deed of Trust/Secured by Note: In the United States, a deed of trust (or a trust deed) is an evidence of debt.

It is the record of transfer of the title of a property to a third party to hold as security. It is a common method of financing your real estate property in several states. It is also the recorded document of title in the public records. A deed of trust instrument identifies the legal description of the property, the borrower and lender, the loan amount, the loan inception and maturity dates. It also specifies late fees, prepayment penalties, adjustable or fixed interest rates and any legal procedures or provisions and requirements.

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Dismissal of Civil Case:

Within legal civil procedure, when a case is dismissed, it is dismissed with “prejudice” or “without prejudice”.

Dismissal without prejudice is a dismissal that allows for re-filing of the case in the future. The present action is dismissed, but the possibility remains open that the plaintiff may file another suit on the same claim. The inverse phrase is “dismissal with prejudice”, in which the plaintiff is barred from filing another case on the same claim.

“Dismissal with prejudice” is a final judgment and the case becomes res judicata on the claims that were or could have been brought in it; “dismissal without prejudice” is not.

[Res judicata (RJ) is the Latin term for “a matter [already] judged”, and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the term is also used to refer to the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties, which is different between the two legal systems. In this latter usage, the term is synonymous with “preclusion”.]

Divorce/Dissolution of Marriage: A divorce is a legal action between married people to terminate their marriage relationship. It can be referred to as dissolution of marriage and is basically, the legal action that ends the marriage before the death of either spouse.

Enforcement of Judgment: A judgment is the official decision of a court of law in a lawsuit. A final judgment resolves the issues involved in the lawsuit, and determines the rights and obligations that each party in the lawsuit has.

In criminal law, a judgment is enforced by the government. The judgment in a criminal matter often results in the imposition of a sentence, which the authorities of the government enforce. Defendants can be ordered to pay a fine, be put on probation, or can be sent to jail.

In civil law, enforcement of the judgment is left to the parties of the lawsuit. When one party to a lawsuit does not comply with the judgment issued by the court, it is up to the other party to seek relief, that is, obtain the settlement granted by the court.

Enforcement of a civil judgment arises when a money judgment or order for support is not paid. Although most people comply with a judgment issued by a court, some people simply ignore the judgment and do not pay. When a person does not pay, enforcement of the judgment is required.

Estate: Everything that you own at your passing after payment of debts and taxes. You will make decisions regarding the percentage share of your estate that you wish to give to your beneficiaries. And if you wish, you may leave specific items of property (car, investments, heirloom, etc.) or sums of money to your beneficiaries.

Eviction: See “Unlawful Detainer”.

Executor: The person appointed in a Will by the testator (person making the Will) to carry out the terms of the Will.

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Fictitious Business Name Statement (dba): Under California law, a business that operates under a fictitious name is required to complete a fictitious business name statement, publish the statement in a newspaper of general circulation, and then record this information with the County Recorder where the business is located.

Corporations are generally exempt, as are businesses that use the individual proprietor’s own name. If you are “doing business as” (d/b/a), generally you need to comply with fictitious business name rules.

Fiduciary Bond: A type of surety bond required by the court to be filed by executors, guardians, etc. to ensure proper performance of their duties as an executor. Typically waived, especially when a spouse or family member is appointed executor.

Freedom >From Parental Custody and Control:

1. Circumstances Where Proceeding May be Brought.
2. Abandoned Children (§ 7822). In re Amy A. (2005) 132 Cal.App.4th 63, 68. A proceeding to have a child declared free from the custody and control of a parent may be brought pursuant to section 7822 “where the child has been left . . . by one parent in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent . . . , with the intent on the part of the parent . . . to abandon the child.” (§ 7822, subd. (a).)

A parent’s “failure to provide support or failure to communicate” with the child for a period of one year or more “is presumptive evidence of the intent to abandon,” and “[i]f the parent [has] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent . . . .” (§ 7822, subd. (b).) The parent need not intend to abandon the child permanently; rather, it is sufficient that the parent had the intent to abandon the child during the statutory period. However, the fact that a parent has not communicated with a child or that the parent intended to abandon the child does not become material unless the parent has ‘left’ the child” within the meaning of section 7822.

A parent may be found to have “left” a child in another person’s care and custody within the meaning of section 7822 even when the child moves away with the other parent.

Although case law refers to the leaving of a child in another person’s care and custody as “an actual desertion” by the parent, case law also clarifies that a parent “leaves” a child by “voluntarily surrender(ing)” the child to another person’s care and custody.

Father abandons child where he suggests that mother take child and move away and thereafter resists mother’s overtures to involve father with child.

Also, under certain circumstances, it may be proper to conclude that a parent has “left” a child despite court intervention, i.e., an order granting the other parent physical custody of the child. Specifically, father’s failure to seek modification of custody order, exercise visitation rights, provide for child’s care, participate in her medical emergencies, or have any kind of a relationship with her constitute substantial evidence father voluntarily surrendered his parental role and thus “left” his child within the meaning of section 7822.

Undisputed fact that father has had no communication with child and has provided no child support for over one year gives rise to presumption that father intended to abandon. (Father’s assertion to the contrary not supported by the evidence.)

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Guardian: A person lawfully invested with the power, and charged with the duty, of taking care of the person who is incapable of doing so because of age or other incapacity.

Guardianship: Guardianship is a legal proceeding where the court appoints an individual to care for a minor child if his or her parent(s) are no longer alive or no longer able to care for him or her. A Guardianship takes away the parents’ rights to make decisions about their child’s life, but does not permanently terminate parental rights.

Healthcare Power of Attorney: A legal document appointing a person the authority to make health care decisions on another person’s behalf.

Homestead Declaration: A form filed with the county recorders office to put on record a homeowner’s right to a homestead exemption. A “declared homestead” means that creditors cannot force a sale of the homeowner’s home to pay a judgment unless the sale would produce enough money to: (1) pay all existing liens (claims on the property); and (2) pay off mortgages and other loans secured by equity in your house; and (3) let the homeowner keep the remaining equity in the house up to the amount protected by the homestead depending on the homeowner’s filing status ($50K an individual w/o dependents; $75K head of household w/ dependents; $100K homeowner or spouse is over 65, or disabled, or 55 or older with annual gross income under $15K if single, or combined gross under $10K if married). In a foreclosure, trust deeds and involuntary liens with priority over the homestead are paid first, then the homestead exemption applies, then court costs, then the foreclosing creditor, then the owner, if anything is left.

Incorporation: See “Corporation”.

Indemnity Agreement: An indemnity is a sum paid by A to B by way of compensation for a particular loss suffered by B. The indemnitor (A) may or may not be responsible for the loss suffered by the indemnitee (B).

Forms of indemnity include cash payments, repairs, replacement, and reinstatement. Tenants signing a lease often agree to indemnify the owner of the property from costs or damages associated with being harmed on the property. This indemnity agreement normally has an additional clause that states the property owner must fix anything that could be potentially dangerous.

Interspousal Transfer Grant Deed: Interspousal transfer grant deeds are used in certain states for tax advantages among spouses. For example, in California, such a deed is considered a transfer and not a change in ownership under §63 of the Revenue and Taxation Code. It is also exempt from reappraisal under one of the following applicable exclusions from reappraisal:

A transfer to a trustee for the beneficial use of a spouse or the surviving spouse of a deceased transferor, or by a trustee of such a trust to the spouse of the trustor.

A transfer to a spouse or former spouse in connection with a property settlement agreement or decree of dissolution of a marriage or legal separation, or A creation, transfer, or termination, solely between spouses, of any co-owner’s interest.

The distribution of a legal entity’s property to a spouse or former spouse in exchange for the interest of such spouse in the legal entity in connection with a property settlement agreement or a decree of dissolution of a marriage or legal separation.

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Joinder of Employee Pension Benefit Plan: Joinder the employee pension benefit plan as a party to the action may be required in order for the plan to fall under the jurisdiction of the court, but it depends on the plan involved. Some plans require joinder. Other plans will not accept joinder. See Judicial Counsel Form FL-319-INFO “Retirement Plan Joinder–Information Sheet” for more details on what plans require joinder and what plans do not. Find Judicial Council forms at http://www.courtinfo.ca.gov/forms/

Joint Tenants with Right of Survivorship: A single property owned by two or more persons, under one title, with equal rights to the property. At the death of one joint tenant, the property transfers to the surviving tenant.

If you own property jointly with another person as “joint tenants with right of survivorship”, your interest in that property will pass to the survivor upon your death. It will not pass according to the terms of your will. If you own property jointly with another person without right of survivorship, your interest in that property will pass according to the provisions in your will.

Lease: When you rent out a property, you will need to decide if you wish to offer your tenants a lease or a rental agreement. Although these terms are often used interchangeably, they are not the same.

A lease for a rental property has a finite term, such as six months or a year, for which a tenant will agree to rent the property. During this time period, also known as the duration of the lease, the tenant and the landlord are bound to uphold the terms of the written agreement.

Having a lease means that neither party may change any terms of the agreement until the lease expires, unless both parties agree to the change. For example, if the current amount of rent is $500 per month, you may not increase this amount until the lease expires.

Under a lease, tenants are obligated to make monthly rent payments as agreed upon, as well as follow any code of conduct or other stipulations in the lease while it’s in effect. It also means that a tenant may not vacate the property without breaking their lease. In some cases, the tenant may be held liable for the remaining amount of rent due under the lease, or they may be required to find another person to fulfill their end of the lease.

A lease is generally used for landlords who prefer the stability that comes with locking in a tenant for a specified period of time. If you have a mortgage payment to meet, having this set amount of income can help you budget your expenses.

Most tenants are familiar with long-term leases, and will not have a problem committing to a specified time period.

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Legal Separation: Legal separation is usually pursued when the parties want to stay married for religious reasons, want the advantage of deductibility of spousal support payments for income tax reasons, want to maintain various insurance coverage’s, or are do not want to wait the state statutory waiting period for termination of marital status. For some people, a legal separation is desired to set the parameters for dealing with one another while living separate and apart (especially with respect to continuing support obligations and child sharing issues) while maintaining the status of being married, and leaving the door open for a reunion/resumption of marriage.

Legal separation is not a prerequisite to divorce (dissolution of marriage).

Limited Liability Company (LLC): The limited liability company (“LLC”) combines the advantage of a partnership with the advantage of a corporation’s limited shareholder liability, even if the owners participate in the management of the company.

LLC’s enjoy the following advantages:

• Limited liability protection,
• No restriction on the number or nature of shareholders,
• “Pass through” of entity losses to investors (that is, profits and losses are passed on to partners without being taxed),
• Avoidance of two levels of taxation,
• Flexibility in design of structure, and
• Easy removal of assets from the business.

Conversely, LLC’s have the following drawbacks:

• Not every state has an LLC Act,
• The operating agreement must be carefully drafted,
• At-risk limitation, basis limitation on losses, passive loss limitations and investment interest limitations are all in effect,

• Individual alternative minimum tax consequences may arise,
• It can be more difficult to make a public offering than with a corporation.

Living Trust: A revocable Living Trust is a vehicle that is very helpful in avoiding probate. Probate is the process where a court oversees the distribution of property that belongs to a deceased person at the time of death (after all the deceased’s debts and taxes have been paid). During your lifetime, you can transfer ownership of your assets to a revocable Trust so that the assets are owned by the Trust at the time of your death, and therefore not subject to probate.

A revocable Trust is one that you can revoke, which means you can take the property back or change the terms of the Trust as long as you are alive and competent to make such decisions. Because you retain control of the Trust, your creditors can take those assets during your lifetime if you owe them money, even though you have transferred ownership of the assets to the Trust. However, the Trust does make it more difficult for creditors to access these assets; the creditor has to petition a court for a charging order before the creditor can get to the assets held in the trust.

In most instances, a revocable Trust becomes irrevocable upon the death of the Grantor. This means that the assets in the Trust can no longer be taken back, and they have to be distributed to the Beneficiaries of the Trust as the Trust document directs. While creditors of the deceased can try and collect from the Trust assets, once the Trust is irrevocable, the Trust Beneficiaries are usually not able to use the assets of the Trust as collateral for their debts, so their creditors can’t get to

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the assets of the Trust. While the assets are held in the Trust, the Beneficiaries do not have control over the property, and any distributions are subject to the Trustee’s discretion. Creditors cannot force a Trustee to make a distribution to the Trust Beneficiaries; thus the assets held in a Trust can remain outside the reach of the Beneficiaries’ creditors as long as they are held by the Trust. Once assets are distributed to the Beneficiaries, creditors can attach them as they can any other property owned by the Beneficiaries.

Marital Settlement Agreement: A written agreement entered into by the spouses getting divorced stating their rights and agreements pertaining to property, support and custody.

Minor’s Permission to Travel: In addition to the child’s citizenship documentation, a minor child under the age of 18 must have a legal guardian, or parental consent form from their birth parents to exit the united states and enter most foreign countries. Parents should complete one a permission to travel forms for each minor child under the age of 18 (at the time travel starts) to prevent immigration problems when entering or leaving the country.

Mobile Home Defective Title Transfer: If the title to a mobile home has not been transferred correctly from a seller to a buyer and, upon learning of the defect in conveyance, the buyer can no longer locate the previous owner, a defective title bond will be required. A diligent effort to locate the previous owner will be required and a statement of facts of the efforts as well as the reason the title is defective, for example, the real property was deed to the new owner but the title to the mobile home–personal property–was not. Once the bond has been obtained, new title registration forms will be submitted to HCD. Costs will include the bond (based on the credit of the buyer and the value of the mobile home) and fees to HCD may include fees and penalties for registering late.

Mortgaged Property: If you leave real property which is mortgaged to a named beneficiary, that property will generally pass under your Will/Trust to the beneficiary subject to the debt secured by the mortgage.

If you wish to leave the property free and clear of the mortgage debt, you must include a provision in your will directing the debt to be paid from the other assets of your estate, provided sufficient assets are available.

Name Changes: Every state has laws that allow for legal name change through the court system and most states follow what is known as the “common law” rule that you can use any name you want as long it is used continuously without “intent to defraud.” So, theoretically, you can start using your maiden name again as long as you do so on a regular and consistent basis, and without the intent to avoid creditors or for some other fraudulent reason. Many states, California included, allow a woman to legally use either name during the course of their marriage, or for the couple to decide what name they would like to be known by together while married (have you ever seen hyphenated last names?). The marriage license application should state that you have the option to take both names, or you can keep your own, or you can make up another. The marriage license becomes official proof of the new name, but it is also proof that you can legally use both. If you live in one of these states that allows this option and you chose the option, you should just have to bring your marriage license down to your local DMV as proof for changing your name back.

If you did not request a former name in a dissolution or legal separation proeeding, you can ask for an official name change back to your maiden name by filing an Ex Parte Application for Restoration of Former Name After Judgment with the superior court in the divorce or legal separation case.

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Other name changes done through the courts are done by filing a petition through the clerk of the court that allows the filing of such requests without the need or use of an attorney. The court will generally have the forms you need to fill out.

You will have to pay a fee for filing the paperwork. The court will grant the name change as long as there is no objection and after proof that the name change request had been published in a newspaper. The court will tell you which paper to publish in and how many times. Besides the court’s filing fee, there will also be a fee for publishing.

Ninety Day Notice to Quit: A method to terminate tenancy by giving 90 days notice to the tenant.

Applicable to §8 Tenants. If §8 housing is subject to rent control, then the notice must state a just cause.

Notice of Belief of Abandonment: When rent is due and unpaid for 14 consecutive days, and the landlord has a good-faith belief that the premises have been abandoned by all tenants, a landlord may serve a Notice of Belief of Abandonment.

If the tenant fails to respond within the notice period, the landlord may then change locks and take possession of the unit. The notice period is 15 days if personally served, and 18 days if served by mail. In order to respond, a tenant would have to give a written statement indicating that the premises are not abandoned, and provide an address where an unlawful detainer action may be served by certified mail.

Notice of Right to Reclaim Abandoned Personal Property: Abandoned property is property left behind intentionally and permanently, often by a tenant, when it appears that the former owner or tenant has no intent to reclaim or use it. Examples may include possessions left in a house after the tenant has moved out or autos left beside a road for a long period of time. Two different notices are used in California, one for property valued at $300 or more and one for less than $300. If the tenant fails to respond within the noticed period, the landlord may then conduct public sale after notice of the sale has been given by publication for property valued at $300 or more or for notices of property worth less than $300, dispose of the items. The notice informs the tenant that unless the tenant pays reasonable cost of storage and take possession of the property, the landlord will dispose of it. The notice period is 15 days if personally served, and 18 days if served by mail.

Paternity–Uniform Parental Custody Act: Paternity means fatherhood.

Establishing paternity is the process of determining the legal father of a child. When parents are married, paternity is automatically established in most cases. If parents are unmarried, paternity establishment is not automatic and the process should be started by both parents as soon as possible for the benefit of the child.

Unmarried parents can establish paternity (legal fatherhood) by signing the voluntary Declaration of Paternity. This can be done in the hospital after the child is born. A Declaration of Paternity may also be signed by parents after they leave the hospital.

Unmarried parents who sign the Declaration of Paternity form help their child(ren) gain the same rights and privileges of a child born within a marriage. Some of those rights include: financial support from both parents, access to important family medical records, access to the non-custodial parent’s medical benefits, and the emotional benefit of knowing who both parents are.

In an effort to create a legal link between unmarried fathers and their children, the California Department of Child Support Services joined other states in a partnership with licensed hospitals and clinics with birthing facilities to establish the

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Paternity Opportunity Program (POP). This voluntary in-hospital paternity acknowledgment program, implemented in January 1995, involves about 330 of California’s licensed hospitals and clinics with birthing facilities. The program has since been expanded to prenatal clinics, county welfare offices, local vital records offices, and courts.

Alert! Once paternity or parentage is established, it can be difficult or impossible to undo-even if blood tests later show that the father is not the parent of the child.

After parentage is established, each parent has:

An equal responsibility to support the child, and An equal right to custody of the child.

If a parent does not meet the support obligation, the custodial parent, guardian, or local child support agency can ask the court to enforce the support orders. If a parent violates the support orders, the judge can give him or her a fine of up to $1,000 and 5 days in county jail for each violation.

Parentage and related support issues are complicated. Talk to your local child support agency , a lawyer, or the family law facilitator in your county for more information.

Pension Divisions (QDROs): A QDRO, or Qualified Domestic Relations Order, is basically a court order directed at a deferred compensation plan or pension plan that orders the plan to divide interests in an account pursuant to marital property law. The QDRO was instituted as a result of the 1984 Retirement Equity Act in order to protect spouses from losing pension benefits to which they might be entitled.

QDRO rules do not apply to governmental plans because governmental plans are exempt from ERISA and IRC. Rules governing these plans are codified in federal, state or local statutes. A court order is still required in most cases to divide governmental plans. These orders must meet strict statutory guidelines concerning court ordered benefits.

Governmental plans include all retirement plans (whether of the defined benefit or defined contribution variety) maintained by the federal, state, local government or political subdivision thereof. On the federal level this includes Military plans, Civil Service Retirement System (CSRS), Federal Employees’ Retirement System (FERS), Railroad Retirement Plan, and Federal Thrift Savings Plan. On the state level this includes Public Employees’ Retirement System (PERS), State Teachers’ Retirement System (STRS), and Judges’ Retirement System. On the local level (in Los Angeles) this includes the LA City Employees’ Retirement System (CERS), LA County Retirement Association (LACERA), and LA Deferred Compensation Plan – to name a few.

Pour-Over Will: A pour-over Will is a particular type of Will used in conjunction with a Trust. This kind of Will “pours” any property the deceased still owned at the time of death into the Trust that the person set up during his or her life.

Some people intentionally choose not to put all their property into their Trusts during their lifetimes. This may be to avoid inconvenience in dealing with certain kinds of property. For example, some states and insurance companies make it very difficult to buy, sell, or insure vehicles held in a Trust. There may also be tax reasons for not transferring property to a trust. Subchapter S stock , for example, often does not fit well in a Trust. The transfer of real estate from the individual to a Trust may trigger a property tax re-assessment.

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In other situations people sometimes forget to put newly acquired property into a Trust on an on-going basis. For example, someone might acquire a rare book or a valuable work of art, but forget to transfer ownership to the Trust.

If the person who intentionally or accidentally has left property out of the Trust dies without a Will, then the property that is not included in the Trust, or transferred through some other estate planning device, will pass according to the state laws on what is called “intestate succession” (property inheritance when there is no Will). This property will not pass according to the provisions of the Trust, as the deceased probably wanted it to. To prevent the creation of an intestate estate, a pour-over Will is created. It covers any property that was (intentionally or inadvertently) left out of the Trust during the deceased’s life. By the terms of the pour-over Will, all the property the deceased owned at death is “caught” and is “poured-over” into the existing Trust. Though the property caught by a pour-over Will has to go through probate, it will eventually be distributed according to the instructions of the deceased instead of being distributed under the state law.

Whenever a Trust is used, it is essential to also have a pour-over Will to catch your property which was not held by the Trust or transferred in some other way.

Power of Attorney: A Power of Attorney is a legal instrument that is used to delegate legal authority to another. The person who signs a Power of Attorney is called the Principal. The Power of Attorney gives legal authority to another person (called an Agent or Attorney-in-Fact) to make property, financial and other legal decisions for the Principal. The word attorney here means anyone authorized to act on another’s behalf. Its not restricted to lawyers.

A Principal can give an Agent broad legal authority, or very limited authority. The Power of Attorney is frequently used to help in the event of a Principal’s illness or disability, or in legal transactions where the Principal cannot be present to sign necessary legal documents.

Preliminary Change of Ownership Report: The filing of a Preliminary Change of Ownership Report is required pursuant to California Revenue and Taxation Code sections 480.3 and 480.4. Accurately completing this report may result in lower property taxes in certain cases. The Office of the Assessor will also consider any “creative financing” that you use in the purchase of your property that may result in a lower assessment and lower property taxes. A recording fee surcharge of $20.00 will be required if this report is not filed at the time a conveyance is submitted for recording.

This report is required for all deeds, including quitclaim deeds, excluding the following: easements, trustees’ deeds upon sale or foreclosure instruments, deeds of trust and reconveyance documents, sheriff’s marshal’s/constable’s, tax collector’s and treasurer’s deeds. Additionally, this report is required for agreements of sale and/or contracts of sale, all affidavits of death (except for death of beneficiary under a deed of trust), all leases, memoranda of leases and assignments of leases (excluding oil and gas leases). Note: This form is required to update the information recorded on your document processed by the Office of the Assessor.

The filing of a Preliminary Change of Ownership Report will assist the Office of the Assessor to update the official records pertaining to your property, avoid the penalty imposed by Revenue and Taxation Code section 480, and waive the $20.00 recording fee charge.

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Pre-/Post-Nuptial Agreement: A Prenuptial Agreement, also known as a Prenuptial or Ante-Nuptial Agreement, is a contract that two people sign prior to getting married. Its purpose is to define their rights and benefits and to settle questions of property division, alimony, and/or inheritance if the marriage ends because of death, separation, or divorce. It allows the signers to protect assets that they had acquired prior to the marriage. Without such an agreement, current state law requirements will determine these matters. An agreement simply allows the couple to follow their own rules, in as much detail as they wish

Probate: The judicial determination of the validity of a will. Generally it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased’s property can be legally distributed.

Even if a person dies with a Will (which is known as dying “testate”), a court generally has to have an opportunity to allow others to object to the Will, and if there are any objections, to determine if the Will is valid, because it is always possible that:

(1) There was a later Will (which, if valid, would replace the older Will);

(2) The Will was made at a time the deceased was not mentally competent to make a Will, or

(3) the Will was the result of fraud, mistake, or “undue influence”;

(4) The Will was not properly “executed” (signed);

(5) The so-called Will is actually a forgery;

(6) For some other reason (such as a pre-existing contract) the Will is not fully valid; or

(7) There are other claims against the deceased’s estate that impact what the beneficiaries under the Will would receive.

For example, if the deceased owned real estate in his own name, no knowledgeable outside person would accept title to the property, and no bank would lend a new buyer mortgage money on it, unless the estate had gone through probate so “clear title” could be given the new buyer. Similarly, few outsiders would enter into any other transactions involving the deceased’s property before the Will is “admitted to probate” and/or someone is lawfully appointed to act for the estate.

All the property owned by the deceased at the time of death is included in the estate and is subject to probate. This includes bank accounts, CD accounts, and pension accounts. It also includes the deceased’s personal property, like jewelry, furniture, and artwork.

In some cases an institution may waive the requirement that an estate be probated before money in an account is released IF the beneficiary is the principal heir at law, all other possible heirs at law have signed waivers and authorizations to pay the money to the beneficiary, and have agreed to indemnify the bank should any claims be made. But that’s the exception, rather than the rule for nationally operating institutions.

Process Service: Service of process is the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body’s exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. Usually, notice is furnished by delivering a set of court documents (called “process”) to the person to be served.

Promissory Notes: When do you need a Promissory Note? You need a promissory note when you want to document a loan to a family member, a friend, or any third party.

What is a Secured Promissory Note? It’s the same as a Collateral Note. This is a Note secured by collateral.

A typical example of a secured Promissory Note is a mortgage loan. If you do not take collateral and the

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Borrower defaults on the note, you will have to take the Borrower to court in order to recover your money; and your judgment can only be enforced against certain assets of the Borrower. However, if you take collateral for the note, you may be entitled to seize and sell the collateral if the Borrower fails to repay the note.

What is an Unsecured Promissory Note? A Promissory Note is a written promise to pay a debt by a certain date. It establishes terms of repayment and the penalty for breaking the promise to pay.

It is not secured by collateral, meaning that if a Borrower refuses to pay the debt you have to sue him for the amount owed.

What is a Demand Promissory Note? A Demand Promissory Note is an agreement between two parties in which one party, a Borrower, takes a loan from the other party, a Lender, and makes an unconditional promise to pay this loan upon demand of the Lender. There is no fixed end date for the repayment of the note.

What is a Balloon Promissory Note? A Balloon Note is a Promissory Note that has one large payment (the balloon payment) that is due upon maturity. A balloon note will often have the advantage of a very low interest rate, thus requiring little capital outlay during the life of the loan.

The major problem with such a loan is that the borrower needs to be self-disciplined in preparing for the large balloon payment due when the loan matures. Of course refinancing

the note upon maturity is always a possibility.

Reconveyance: If you buy property or a home using a loan from a lender, then the lender places a lien against the property. The lien is put in place when you originally borrow the loan. A reconveyance can remove this lien when the loan has been paid back in full and the property is yours free and clear.

A reconveyance must be recorded at the county recorder’s office of the county the property is situated in. The reconveyance to be recorded must have the same information that is on the deed of trust. The deed of trust is a document between the borrower and the lender, and also names a trustee. The trustee is usually a title company, and the deed of trust also records the property that the loan is being used to buy.

Rental Agreement: Rental agreements differ from leases in a number of ways. Standard rental agreements are month-to-month, and there is no set period of residence. Both the landlord and tenant are free at the end of each 30-day period to make changes to the rental agreement, subject to any rent control laws.

These changes may include a rent increase, modification of terms of the rental agreement, or a request to vacate the property. However, in most states, both landlord and tenant are required to give 30 days’ notice before any changes can be made. If your state does not require a notice, you are free to change any part of the rental agreement at your discretion.

Rental agreements are useful for landlords who are having difficulty attracting new tenants, especially if they are in areas that cater to students or professionals on the move. They appreciate the freedom a month-to-month agreement provides, and landlords who offer these arrangements may have an edge over landlords who require long-term leases.

A rental agreement is typically auto-renewed without notice after each 30-day period has elapsed, as long as neither party has stated that the tenant will vacate the premises.

Before you rent out your property, you will need to take into account the differences between a lease and a rental agreement. This will allow you to make the best decision for your needs.

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Restoration of Former Name in Family Law Case After Judgment: See “Name Changes.”

Quitclaim Deed: A real property deed which transfers (conveys) only that interest in the property in which the grantor has title. Commonly used in transfers of title or interests in title, quitclaims are often made to family members, divorcing spouses, or in other transactions between people well-known to each other.

Quitclaim deeds are also used to clear up questions of full title when a person has a possible but unknown interest in the property. Grant deeds and warranty deeds guarantee (warrant) that the grantor has full title to the property or the interest the deed states is being conveyed, but quitclaim deeds do not warrant good title.

Qualified Domestic Relations Order: The QDRO was instituted as a result of the 1984 Retirement Equity

Act in order to protect spouses from losing pension benefits to which they might be entitled. A QDRO is an order of the court directed at a retirement plan administrator, dividing the parties’ respective interests in the plan in accordance with applicable law.

The question of whether a QDRO is required in a particular case depends upon several factors. Generally a QDRO is required to divide Defined Benefit Plans (e.g. most private “pension” or “retirement” plans) and Defined Contribution Plans (e.g. most profit sharing and 401(k) plans). QDRO rules do not apply to Governmental Plans (e.g. PERS and STRS), however, a different type of court order is still required in most cases to divide these benefits.

A QDRO is not needed to divide assets in Individual Retirement Accounts (IRAs). IRA assets may be transferred between spouses without incurring tax liability if the transfer is made pursuant to a written divorce decree or Marital Settlement Agreement.

Sixty-Day Notice to Vacate: A method to terminate tenancy by giving 60 days notice to the tenant.

Applicable if Tenant lived in the premises for more than 1 year. Also note that the one-year time period does start over if the tenant moves from one unit to another or changes roommates. If property is subject to rent control, then the notice must state a just cause or pay relocation fees.

Small Claims: The small claims court is a special court in which disputes are resolved inexpensively and quickly. The rules are simple. The hearing is informal. Attorneys are not allowed. The person who files the lawsuit is the plaintiff, and the person being sued is the defendant. An individual cannot ask for more than $10,000 in a claim. Corporations and other entities (like, government entities) cannot ask for more than $5,000. You can file as many claims as you want for up to $2,500 each. (The filing fee goes up to per claim $100 after 12 claims per year.) But you can only file 2 claims in a calendar year that ask for more than $2,500.

There are a few exceptions to the !0,000 limits for individuals. For more information, go to www.courts.ca.gov/1256.htm.

Stepparent Adoption: Adopting a stepchild is the most common form of adoption. A stepparent who adopts agrees to be fully responsible for his or her spouse’s child. After the stepparent adoption occurs, the noncustodial parent (the parent not living with the child) no longer has any rights or responsibilities for the child, including child support.

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Stepparent adoption, like all other forms of adoption in the United States, is governed by State law. Most States make the adoption process a little easier for stepparents. For example, your family may not need to be represented by a lawyer.

The county probation department will conduct the home study and background check.

How long your adoption will take also varies by State. California law no longer requires the stepparent and the natural parent to have been married to the child’s parent for 1 year or longer so an Adoption Request can be filed right away.

Adoption by a stepparent generally has no effect on a child’s legal right to inherit from either birth parent or other family members. For more information about how each State and territory handles legal inheritance, see Intestate Inheritance Rights for Adopted Children at www.childwelfare.gov/systemwide/laws_policies/statutes/inheritance.cfm/ .

Consent of the Other Parent

If you want to adopt a stepchild, you must have the consent (or agreement) of both your spouse and the child’s other parent. By giving his or her consent, the noncustodial parent gives up all rights and responsibilities, including child support. Sometimes getting the child’s other parent to agree to your adoption can be difficult.

The way to obtain consent is different in each State. In California, the noncustodial parent must sign on consent in the presence of a notary public or court officer.

It is important to do everything the law requires to obtain proper consent. Some States’ laws allow for consent to be revoked, and for an adoption to be challenged or overturned, if these requirements are not met or fraud has occurred.

Some States’ laws allow stepparent adoptions to occur even if the noncustodial parent objects or contests the adoption.

For example, this may be allowed if the noncustodial parent has not contacted the child for a certain period of time. These situations may be complicated. You may wish to consult with a lawyer. If you cannot afford to hire a lawyer, you may be eligible for free legal help. In some States, the court will also appoint someone to represent your child (a guardian ad litem, sometimes called a “GAL”).

Stipulations: In law, an agreement or concession made by parties in a judicial proceeding (or by their attorneys) relating to the business before the court; must be in writing unless they are part of the court record.

Summary Dissolution of Marriage: Summary dissolution (divorce) is easier and faster than regular divorce.

To qualify for a summary dissolution you must meet ALL of the following requirements as it applies to both spouses:

• Have been married LESS THAN 5 YEARS on the date you file your Joint Petition for Summary Dissolution of Marriage;

• Have NO children together that were adopted or born before or during the marriage (and the wife is NOT PREGNANT NOW);

• Do NOT own or have an interest in any real estate (house, condominium, rental property, land, or a 1-year lease or option to buy);

• Do NOT owe more than $6,000 for debts acquired since the date of your marriage (do not count auto loans);
• Have LESS THAN $45,000 worth of property acquired during the marriage (do not count money you owe on the property or auto loans);

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• Do NOT have separate property worth more than $45,000 (do not count money you owe on the property or auto loans);

• Agree that NEITHER spouse will ever get spousal support;
• Have signed an agreement that divides your property and debts before filing the Joint Petition for Summary Dissolution of Marriage; AND

• AT LEAST ONE spouse has to have lived in California for the last 6 months and in the county where you plan to file for the last 3 months.

Summary Dissolution of Domestic Partnership: To qualify for a summary dissolution of your domestic partnership you must meet ALL of the following requirements. You and your domestic partner:

• Both want to terminate your domestic partnership;
• Have not been registered as a domestic partnership for more than 5 years on the date you file your Notice of Termination of Domestic Partnership;

• Have no children together born or adopted before or during the domestic partnership (and neither of you is pregnant now);

• Do not own any part of land or buildings;
• Do not rent any land or buildings (except for where you now live, as long as you do not have a 1-year lease or option to buy);

• Do not owe more than $6,000 for debts acquired since the date of your domestic partnership;
• Do not count car loans.
• Have less than $43,000 worth of property acquired during the domestic partnership;
• Do not count your cars.
• Do not have separate property worth more than $43,000;
• Do not count your cars.
• Agree that neither partner wants partner support from the other; AND
• Have signed an agreement that either divides your property (including your cars) and debts or says there is no community property or debts to divide.

Three-Day Notice to Pay Rent or Vacate Premises: A method to terminate tenancy when the tenant has failed to pay the rent. The notice cannot be served until after the passing of the rental due date. The three days begins on the first day after service of the notice. If the 3rd day falls on a Saturday, Sunday or legal holiday, the three day period will not expire until the following Monday or non-holiday. Notice must accurately state amount of rent that is due. Late charges is NOT rent unless stated in written agreement. Notice must conform to CCP 1161(22). Must list the amount or rent due, name, address and telephone number of the person to pay rent to.

Must also state that if payment is made in person, the ususal days and hours the person is available to receive the rent payment.

Thirty-Day Notice to Vacate: A method to terminate tenancy by giving 30 days notice to the tenant.

Applicable if Tenant lived there for less than 1 years. If property is subject to rent control, then the notice must state a just cause or pay relocation fees. If the tenants have been living in the rental property for more than one year, the landlord will be required to give them 60 days’ written notice. Also note that the one-year time period does start over if the tenant moves from one unit to another or changes roommates.

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Thirty- or Sixty-Day Notice of Termination to Lodger: A lodger, or roomer, is someone who rents a room in a house that you own and live in. The rules for evicting a lodger are covered by Calif. Civil Code § 1946.5 and Penal Code §§ 602.3 and 837, and apply only if you rent to one lodger. (If you have two or more lodgers, you must use an unlawful detainer to evict them.) If your lodger is a month-to-month tenant and you want to terminate the tenancy, you can serve the lodger with a 30-day notice if the lodger has resided in the premises for less than one year or with a 60-day notice if the lodger has resided in the premises for a year or more. If, at the end of the notice period the lodger has not left, the lodger is guilty of an infraction and the landlord can arrest the lodger under a citizen’s arrest. Instead, it may be best to call the local law enforcement to handle the situation. Have a copy of the dated termination notice available. Be aware that many local police do not know the procedures for evicting lodgers or may not want to get involved, fearing potential liability for improperly evicting a tenant. The police may insist that the landlord go through a normal unlawful detainer lawsuit.

Trademark: A trademark or trade mark or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or services from those of other entities.

A trademark is designated by the following symbols:

™ (for an unregistered trade mark, that is, a mark used to promote or brand goods)

SM (for an unregistered service mark, that is, a mark used to promote or brand services)

® (for a registered trademark).

A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on color, smell, or sound.

The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.

The term trademark is also used informally to refer to any distinguishing attribute by which an individual is readily identified, such as the well known characteristics of celebrities. When a trademark is used in relation to services rather than products, it may sometimes be called a service mark, particularly in the United States.

Trust Administration: The trustee named to administer the trust when the settlor dies (usually called the “successor trustee”) is responsible for settling the trust in the manner required by law. Where there is no courtappointed executor of the decedent’s will, most duties that would otherwise belong to the executor must be performed instead by the successor trustee.

For example, the trustee is responsible for seeing to it that all required notices of administration are given, that the settlor’s debts are paid or provided for, that all taxes are paid and that all distributions are made in a timely manner to the persons entitled to them. The trustee is also responsible for insuring or otherwise protecting trust assets against loss and for getting a reasonable investment return on trust assets while the trust is being administered.

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The trustee ordinarily consults with beneficiaries on the conduct of trust business – for example, on whether to retain or sell real estate or whether to cash in stocks, bonds or other investments. However, the trustee has sole authority to actually make decisions on these matters, subject only to the trustee’s duty to be fair, to follow any restrictions in the trust document and to act in the best interest of the beneficiaries.

The trustee may incur personal liability for failure to administer a trust in the manner required by law. For example, the Internal Revenue Code provides that any trustee who distributes assets to a beneficiary before the applicable taxes have been paid may be personally liable for those taxes.

Likewise, the trustee may be personally liable for losses arising from improper investments of trust assets.

Trust Transfer Deed: Since living trusts have become more commonplace, title documents for real property, such as grant deeds or quitclaim deeds, are frequently held in a trust. If you want transfer a deed in a living trust, the deed to be used in the transaction will be prepared in much the same way as the deed that was used to transfer the property to the trust. Likewise, the filing of the deed in the local property records office will be done is the same way as most other transfer deeds.

Trustee: A person appointed to manage the financial affairs of the one who is legally incapable of doing so because of incapacity or death.

Unlawful Detainer: Or eviction is the removal of a tenant from rental property by the landlord.

Voluntary Declaration of Paternity: When both unmarried parents sign a Declaration of Paternity, it means they are the legal parents of the child. Signing a Declaration of Paternity is voluntary. The parents can sign a declaration at the hospital or can get forms at their county’s Local child support agency, Registrar of births, or Family law facilitator’s office. Most offices also have a videotape explaining how the Voluntary Declaration of Paternity works. If the parents sign at the hospital, the father’s name will go on the child’s birth certificate,

and the mother does not need to go to court to prove who the father of the child is. If they sign the declaration after the child’s birth certificate has been issued, a new birth certificate can be issued with the father’s name.

After a signed Declaration of Paternity is filed with the court, the judge can make orders for custody, visitation, and support. Wage Garnishments: Wage garnishment, the most common type of garnishment, is the process of deducting money from an employee’s monetary compensation (including salary), sometimes as a result of a court order. Wage garnishments continue until the entire debt is paid or arrangements are made to pay off the debt.

Will: A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death. For the devolution of property not disposed of by will, see inheritance and intestacy.

In the strictest sense, a “will” has historically been limited to real property while “testament” applies only to dispositions of personal property (thus giving rise to the popular title of the document as “Last Will and Testament”), though this distinction is seldom observed today. A will may also create a testamentary trust that is effective only after the death of the testator.

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When You Die Without a Will in California

When you die without a will in California, the decedent’s estate must go through the probate process.

California intestate succession laws will determine who of the decedent’s surviving relatives receives his/her property as well as what percentage of the estate they will receive.

California Intestate Succession Overview

In California, a person who dies without a will dies intestate. California laws of intestate succession are used to decide who of the decedent’s surviving relatives will inherit his/her estate. Determining who the heirs are and what percentage of the estate they will receive involves answering a series of questions about the person who died. Some of these questions pertain to whether the decedent was married, if they have living or pre-deceased children, and what other heirs have priority in the line of succession according to California law to receive the property.

What Happens When You Die Without a Will in California?

If the decedent is married and dies without a will in California, all of his community property interest will go to his/her surviving spouse. The surviving spouse can file a spousal property petition to prove ownership. The decedent’s separate property will be distributed as follows:

1. The surviving spouse will receive all the decedent’s property if the decedent does not have any surviving children.
2. The surviving spouse will receive ½ of the separate property if the decedent has only one surviving child, and 1/3 of the property if the decedent has two surviving children.

The surviving children will inherit their designated share.

Legal Consequences of Dying Intestate

There are several legal consequences of dying intestate, meaning when a person dies without a will. For example, who will inherit the decedent’s property? What happens to minor children? Are there any tax consequences? These important questions are further addressed below.

1. Who inherits property when there is no will?

As mentioned above, the surviving spouse will inherit the decedent’s community and separate property if there is no will.

If the decedent is not married at death, the decedent’s surviving children will take the decedent’s assets in equal shares.

If there are no surviving children, the estate will go to the decedent’s parents. If the parents are deceased, the estate will go to the parent’s surviving issue (the decedent’s brothers and sisters). If the brothers and sisters have predeceased the decedent, their children will inherit a share of the estate. If the decedent has no parents, brothers, or sisters, his/her grandparents will inherit the estate. The oldest generation with surviving children will inherit the property. As you can see, a decedent who dies without a will may have his/her property distributed in a way completely different from what their intentions might have been when they were alive.

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2. What happens to your children when you die without a will?

If the decedent planned accordingly, a nominated guardian would normally get custody of minor children. Without a will, however, the decedent parent has no say in who will be guardian of their child or children. Without a pre-designated guardian, the court will be left to appoint a guardian, typically a grandparent to care for the child. If the child has no grandparents, the nearest relative will be appointed. If the child has several relatives of the same degree, the court will appoint the best suited relative to serve as guardian. Unfortunately, if you die without a will in California, the care and destiny of your minor children will be out of your control.

3. What are the consequences when you die without a will?

A decedent’s estate is considered a separate legal entity for federal income tax purposes. If you are the personal representative of someone’s estate, you may need to file a final personal income tax return of the deceased person as well as an income tax return for the estate. Very large estates may also be required to pay federal estate taxes.

Income taxes for the decedent must be paid and a personal income tax return filed for the current year up to the date of his/her death. If the estate earns gross income over $600 during the tax year or if a beneficiary is a nonresident alien, a separate estate tax return (Form 1041) must also be filed. Only very large estates are subject to paying federal estate taxes.

In fact, 99.5% of all estates will not owe any federal gift/estate tax. As of 2015 if the estate is valued over $5.43 million, a federal tax return must be filed. Any taxes due must be paid within 9 months.

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