f you have the legal right to inherit personal property, like money in a bank account or stocks, and the entire estate is worth $150,000 or less, you may not have to go to court. There is a simplified process you can use to transfer the property to your name. But this process is not for real property, like a house.

Figuring out if the estate is worth $150,000 or less

To calculate the value of the estate:

Include:

  • All real and personal property.
  • All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).

Do not include:

  • Cars, boats or mobile homes.
  • Real property outside of California.
  • Property held in trust, including a living trust.
  • Real or personal property that the person who died owned with someone else (joint tenancy).
  • Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.
  • Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries.
  • Unpaid salary or other compensation up to $5,000 owed to the person who died.
  • The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)
  • Bank accounts that are owned by multiple persons, including the person who died.

For a complete list, see California Probate Code section 13050 .

Figuring Out if You Have the Legal Right to Inherit the Property

You can use the affidavit process if you have the legal right to inherit property from the person who died.

You must be a beneficiary in the person’s will or an heir if the person died without a will. Other people may qualify too, like the guardian or conservator of the estate. For a complete list, see California Probate Code section 13051.

It can be very complicated to figure out if you have the legal right to inherit the property. If there is no valid will, the law says how to determine if someone is a legal “heir” by looking at the type of property, the relationship between all the persons claiming to be heirs, and other issues. If you are not sure if you qualify to inherit the property in question, talk to a lawyer.

Using the Affidavit to Transfer Personal Property

Once you know the value of the property is $150,000 or less and you personally qualify to use the affidavit process, follow these instructions. But keep in mind you must wait at least 40 days after the person dies to transfer the personal property. And, remember, you cannot use this affidavit process to transfer real property like land or buildings.

To use to Affidavit process: 

  1. Fill out the Affidavit.
    Many banks and other institutions have their own affidavit. So, check with them first and ask for one. Your court’s self-help center may also have this form or a sample you can use to guide you.

    • You can list all assets in 1 affidavit. Or you can do one affidavit for each asset.
  2. Attach (to the affidavit): 
    • A certified copy of the death certificate of the person who died.
    • Proof that the person who died owned the property (like a bank passbook, storage receipt, stock certificate).
    • Proof of your identity (like a driver’s license or passport)
    • An Inventory and Appraisal (Form DE-160) of all real property owned by the decedent in California.  You will need to get this form signed by a probate referee.  If there is no real property, then you do not need this form.
  3. Have the affidavit notarized.
    Legally, you are not required to have the affidavit notarized BUT many institutions will ask you to, so it is a good idea to notarize it before you try to use it to transfer the property.
  4. If there are other people entitled to inherit the property, they MUST also sign the affidavit.
    This shows you all agree that the property listed on your affidavit can be transferred to you.
  5. To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.

NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.

Need help?

You can talk to a lawyer.

from California Courts

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Court Interpreters

May 15th, 2016 | Posted by admin in Uncategorized - (0 Comments)

By law, in California all official court business must be conducted in English.  So, when 1 of the parties or witnesses in a case does not speak English well, that person will need a court interpreter (who speaks English and the non-English speaker’s first language) so he or she can understand what is going on and talk to the judge, if needed.

Note: There are also American sign language interpreters for parties and witnesses that are deaf or hard-of-hearing (or have another disability). The court will provide a sign language interpreter for you or other accommodation you may need.

In some cases (like criminal cases, juvenile delinquency cases and usually in domestic violence cases) the interpreter is paid for by the court and may be a court employee. Often (in most civil cases) the person needing the interpreter must get and pay for his or her own interpreter or get a friend to interpret. Some courts are able to provide interpreters at no cost to you in some civil cases such as family law cases where domestic violence is an issue, guardianships and conservatorships, most elder abuse restraining order cases, evictions, and others. Ask your court clerk to find out if your court will provide an interpreter for you at no cost.

If you need an interpreter, start by asking someone who speaks English to call the court clerk as early as possible, but at least a week before your hearing and ask for a court interpreter for you. You may have to pay a fee for the interpreter if your court cannot provide one at no cost.

If the court interpreter is not available, it is your responsibility to get your own interpreter. You can ask a friend, relative, or someone else to interpret for you when you go to court. Do not ask a child to interpret for you.

Keep in mind that just because someone you know speaks both English and your first language does not mean he or she would be a good interpreter. A court interpreter needs to be familiar with legal terms and concepts in both English and your first language, and most people are not. If you get someone who cannot accurately interpret everything the judge or the lawyers are saying to you, you may miss important information and be at a disadvantage. Court hearings are your 1 chance to tell your side of the story to the judge. If you have an interpreter that does not get across what you are saying exactly as you are saying it, you will not have a second chance to talk to the judge. That is why it is very important you have an interpreter with experience.

Using a court interpreter can be awkward because you have to go through another person to get your information or talk to the judge.

To make sure you get an experienced court interpreter, you should consider a professional interpreter who has passed the required examinations and has officially registered and been approved as a court interpreter by the Judicial Council of California.

from California Courts

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After the Trial

May 6th, 2016 | Posted by admin in Criminal Law - (0 Comments)

The Verdict

If the jury finds the defendant not guilty, it is called an “acquittal” and the defendant will be released. The defendant can never be tried again for the same crime. This is called “double jeopardy.” A finding of not guilty is not the same as a finding of innocence. It simply means that the jury was not convinced that the defendant was guilty beyond a reasonable doubt. The arrest will still show on the defendant’s record, along with the acquittal. If a defendant was wrongfully arrested and charged, and he or she wants to get the arrest removed from her or his record, a hearing to determine the factual innocence of the defendant must be held in front of a judge. It is often much harder to prove factual innocence, than to raise a reasonable doubt about guilt.

If the defendant is found guilty, the defendant will be sentenced.

After the Trial — The Appeal Process

If you are found guilty after a trial, you have the right to an appeal process. There are many reasons for an appeal of a criminal case, but appeals are also very difficult, so talk to a lawyer to make sure you know what is best for you.

There are also important deadlines that apply to appeals. If you miss the deadline, your appeal will most likely be dismissed.

  • For misdemeanor cases, you must file a Notice of Appeal (Misdemeanor) (Form CR-132) within 30 days of the date of the judgment or order.
  • For felony cases, you must file a Notice of Appeal — Felony (Defendant) (Form CR-120) within 60 days of the date of the judgment or order.

Keep in mind that the appeal is not a new trial. The appellate court can review the evidence (testimony and exhibits) presented at your trial to see if the trial court made a legal error in how the testimony or exhibits were received. The appellate court does NOT decide the facts of the case as the judge or jury in the trial court does.
You can only appeal if:

1. You say there was not enough evidence in your trial to justify the verdict or judgment; and/or
2. You say there were mistakes of law during or before the trial that hurt your case.

If you say there was not enough evidence in your trial to justify the judgment, the appellate court will review the record and decide if there was substantial evidence to support the judgment. If you say mistakes of law were made, the appellate court will hold a hearing to listen to both parties. Then they will decide if there was any irregularity or mistake that prejudiced (hurt) your case.

In addition to appealing after a trial, there are other situations when you can file an appeal, like appealing the validity of a plea or probation violations. Talk to your lawyer to learn more about your options to appeal.

from California Courts

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Basics of Criminal Court

April 29th, 2016 | Posted by admin in Criminal Law - (0 Comments)

In any criminal case other than most infractions, where the potential for jail or prison time exists, a defendant has the right to be represented by an attorney, even if the defendant cannot afford one. In criminal infraction cases, a defendant also has the right to a lawyer if he or she is arrested and NOT released on his or her written notice to appear, on his or her own recognizance, or after a deposit of bail. The reason is that a criminal proceeding is complicated, and the consequences, besides incarceration (jail or prison time), can be severe. For example, a conviction can result in deportation for noncitizens or prevent a legal resident alien from becoming a citizen.

Certain convictions can prevent persons from holding many types of jobs. Experienced criminal defense attorneys, whether they are for private hire, serve as public defenders, or are appointed by the court, know about the criminal justice system — how it works, which options are available to a defendant, and what the likely outcomes of different options are. Whenever possible, get the help of an experienced criminal defense attorney when you are charged with a crime.

Criminal court is where you go when the state believes you have committed a crime and it files charges against you. Generally, the District Attorney’s Office represents the state. Each county has its own District Attorney’s Office. In some cities certain offenses are prosecuted by the city attorney instead of the district attorney.

Only the government — not another person or private agency — can charge you with a criminal violation.

In criminal court, you are presumed innocent until proven guilty beyond a reasonable doubt.

Difference Between Criminal and Civil Cases

A criminal case happens when the government files a case in court to punish someone (the defendant) for committing a crime. If the defendant is found guilty of a crime, he or she may face jail or prison.

A civil case happens when one person, business, or agency sues another one because of a dispute between them, usually involving money. If someone loses a civil case, they may be ordered to pay the other side money or to give up property, but they will not go to jail just for losing the case.

There are other important differences, like:

  • In a criminal case, the government must prove the defendant’s guilt “beyond a reasonable doubt.” In a civil case, the plaintiff must prove his or her case by a “preponderance of the evidence” (more than 50 percent). This means that a party to a civil case can win if he or she is able to convince the judge or jury that his or her side of the case is slightly more convincing than the other side’s.
  •  In criminal cases where the charge is a misdemeanor or felony, if the defendant cannot afford a lawyer, the court will appoint one without cost to the defendant. In civil cases, if a party cannot afford a lawyer, they have to represent themselves. There is no right to a court-appointed lawyer in an infraction case.
  • In criminal cases, defendants almost always have the right to a trial by jury, except in infraction cases. In civil matters, there are many types of cases where there is no right to a trial by jury.

Types of Criminal Cases

There are 3 types of criminal cases:

  • Infractions

An infraction is a minor violation. Many traffic violations are infractions. The punishment for infractions is usually a fine, and if the defendant pays the fine, there is no jail time.

  •  Misdemeanors

A misdemeanor is a crime with a maximum punishment of:
Either 6 months or 1 year in a county jail, and/or
o   A $1,000 fine (for most misdemeanors).

Examples of misdemeanors are:

  • Petty theft

o    Vandalism
o    Driving with a suspended license
o    Drunk driving (also known as “DUI” or “driving under the influence”)

  • Felonies

A felony is the most serious kind of crime. If found guilty, the defendant can be sent to jail or prison for a year or more, or even receive the death penalty for very serious crimes. Defendants convicted of felonies are usually sent to state prison for sentences of 16 months or more.
Examples of felonies are:
o   Robbery
o   Murder
o   Rape
o   Possession of illegal drugs (called “controlled substances”) for sale

Lawyers in Criminal Court

In any misdemeanor or felony criminal case (and any infraction where you have been arrested and NOT released on your written notice to appear, on your own recognizance, or after a deposit of bail), you should have a lawyer. You have the right to represent yourself in criminal court in California. BUT because the consequences of a criminal conviction can be so serious and you can end up in jail or prison, it is best if you have a lawyer represent you.

If you cannot afford your own lawyer, the court will appoint a lawyer for you, often a public defender. Make sure you tell the judge at your arraignment that you cannot afford a lawyer. You may have to fill out a financial affidavit, which is a form where you explain your financial situation under oath and show the court you cannot afford a lawyer.

from California Courts

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Foreclosure

April 22nd, 2016 | Posted by admin in Real Estate - (0 Comments)

What is a foreclosure?

Most people buy a home by borrowing part of the purchase price usually from a bank or a mortgage company.   Other times, a homeowner borrows money against the equity in the property after the home is purchased, and this is called a “home equity loan.” Sometimes people refinance their mortgage loan and combine it with a home equity loan. In all these situations, the lender usually has a lien against the home to secure repayment of the loan. When a buyer fails to make the payments due on the loan (defaults on the loan) the lender can foreclose, which means that the lender can force a sale of the home to pay for the outstanding loan.

The law on foreclosure is changing often. Make sure you read the most updated laws.

Types of foreclosures

In California, lenders can foreclose on deeds of trust or mortgages using a nonjudicial foreclosure process (outside of court) or a judicial foreclosure process (through the courts). The nonjudicial foreclosure process is used most commonly in our state.

  • Nonjudicial foreclosure is the most common type of foreclosure in California. It is used when there is a power-of-sale clause in the deed of trust that secures the mortgage loan by giving the trustee the authority to sell the home to pay off the loan balance at the request of the lender if the borrower defaults (fails to make payments).

When a lender uses the nonjudicial foreclosure process against a borrower who fails to pay on a mortgage for his or her primary residence, the lender gives up the right to collect a deficiency judgment against the borrower. But most lenders prefer this process anyway because it is much faster and less costly.

  • Judicial foreclosure involves filing a lawsuit to get a court order to sell the home (foreclose). It is used when there is no power-of-sale clause in the mortgage or deed of trust. Generally, after the court orders the sale of your home, it will be auctioned off to the highest bidder.

Judicial foreclosures are rare in California. A judicial foreclosure allows the lender to get a deficiency judgment against the borrower. BUT the homeowner has the “right of redemption,” which allows him or her to buy the home back from the successful bidder at the auction for 1 year after the sale. The process is longer and more costly than a nonjudicial foreclosure.

Foreclosure Process

These are the main steps in a nonjudicial foreclosure, which apply to the majority of foreclosures in California.

  1. The lender MUST contact you and anyone else on the mortgage loan to assess your financial situation and explore your options to avoid foreclosure (called a “foreclosure avoidance assessment”). The lender:
    • Cannot start the foreclosure process until at least 30 days after contacting you to make this assessment; and
    • Must advise you during that first contact that you have the right to request another meeting about how to avoid foreclosure. That meeting must be scheduled to take place within 14 days.
    • You can authorize a lawyer, HUD-certified housing counseling agency, or other advisor to talk on your behalf with the lender about ways to avoid foreclosure. You cannot be forced to accept any plan that your representative and the lender come up with during that discussion.
  2. If you and the lender have not worked out a plan to avoid foreclosure, the lender can record a Notice of Default in the county where your home is located, at least 30 days after contacting you for the foreclosure avoidance assessment. This marks the beginning of the formal and public foreclosure process. The lender sends you a copy of this notice by certified mail within 10 business days of recording it. You then have 90 days from the date that the Notice of Default is recorded to “cure” (fix, usually by paying what is owed) the default.
    • WARNING: Since the Notice of Default is recorded as a public document, many fraudulent companies and scam artists search the public records to send defaulted borrowers offers to “help” them avoid losing their homes to foreclosure. These fraudulent companies could take your money and then do nothing to help.
  3. If you do not pay what you owe, a Notice of Sale is recorded (at least 90 days after the Notice of Default is recorded). The Notice of Sale states that the trustee will sell your home at auction in 21 days.The Notice of Sale must:
    • Be sent to you by certified mail.
    • Be published weekly in a newspaper of general circulation in the county where your home is located for 3 consecutive weeks before the sale date.
    • Be posted on your property, as well as in a public place, usually at your local courthouse.
    • Have the date, time, and location of the foreclosure sale; the property address; the trustee’s name, address, and phone number; and a statement that the property will be sold at a public auction.
  4. At least 21 days after the date when the Notice of Sale is recorded the property can be sold at a public auction. The successful bidder must pay the full amount of the bid immediately with cash or a cashier’s check. The successful bidder gets a trustee’s deed once the sale is complete. The lender usually bids at the auction, in the amount of the balance due plus the foreclosure costs. If no one else bids, your home goes to the lender.

Note: Before the foreclosure process begins, the lender or loan servicer may send you letters (over the course of several months) demanding payment. Those letters are NOT notices of default.

Stopping the foreclosure sale

You have up until 5 days before the foreclosure sale to cure the default and stop the process. This is called “reinstatement” of the loan. During the 21-day period after the Notice of Sale is recorded, any person or institution (like a bank) with an interest in your home has the right to redeem the home up until the nonjudicial foreclosure sale/auction. This means that they must pay the entire loan in full.

After the foreclosure

Whoever buys your home at the foreclosure sale/auction cannot just change the locks to the home. The new owner must serve you with a 3-day written notice to “quit” (move out) and, if you do NOT move out in the 3 days, go through the formal eviction process in court in order to get possession of the home. That process typically takes several weeks.

Rights of Tenants During a Foreclosure

If there are tenants in the house that was foreclosed on, the new owner must honor the existing lease. BUT when the tenants have a month-to-month lease or the owner/landlord also lives in the home that is being foreclosed on, the new owner can evict the tenants or former owner/landlord. In these cases, the new owner may either (1) offer the existing tenants a new lease or rental agreement or (2) begin eviction proceedings. If the new owner chooses to evict existing tenants (other than the former owner), the new owner must give the tenants at least 90 days’ notice before starting eviction proceedings.

  • There are other rights that tenants have in eviction cases done after a foreclosure. If a tenant is not named in the complaint for the eviction, he or she may be able to challenge the eviction at any time during the case or even after the judgment for eviction is made. If you are an occupant of a foreclosed property where the new owner filed an eviction case, talk to a lawyer  to learn about your rights.

Tenants in some California cities may still have a right to stay in their buildings. Cities with eviction or rent control laws prohibit new owners from using foreclosure as a reason for evicting tenants.

If you need additional information, talk to a lawyer.

from California Courts

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