California Partition Law Blog

A Guide to State of California Business Searches (Corp. Code, § 1502)

Published on: November 29, 2024 | By Underwood Law Firm, P.C.

California businesses are required to register with the Secretary of State to legally conduct business in the state. The specific requirements a business must meet when registering with the Secretary of State vary depending on the type of business, but all businesses, regardless of type are required to file a Statement of Information. If the registering business is a Limited Liability Company, Corporation, or Limited Partnership, its Statement of Information will appear in public searches on the California Secretary of State Website. The California Secretary of State’s public business search platform is intended to ensure uniform legal compliance of all businesses operating in California while providing free public access to the information.

What is a State of California Business Search?

A California Business search is a free online tool provided by the California Secretary of State that provides the public with information about entities registered with the Secretary of State. The Secretary of State public search platform specifically provides information on corporations, limited liability companies, and limited partnerships.

Continue reading →

A Guide to Civil Discovery in Probate (Prob. Code § 1000)

Published on: November 25, 2024 | By Underwood Law Firm, P.C.

underwood-guide-to-civil-discovery-probate-300x300 Discovery is an important tool for parties in a lawsuit to get information to prepare for trial and to decide what issues to focus on in a case. In California, the rules governing discovery are laid out in the Civil Discovery Act in Title 4 of the Code of Civil Procedure. These discovery rules apply to civil lawsuits and special proceedings of a civil nature (Code Civ. Proc. § 2035) Probate proceedings are special proceedings, so these discovery procedures are equally applicable. (Estate of Joseph (1897) 118 Cal. 660, 663.) This is important because it allows parties to use deadlines and other discovery tools to their advantage in a probate proceeding.

The Civil Discovery Act applies to probate proceedings and disputes. (Prob. Code § 1000(a).) The normal rules of discovery in civil actions apply, and as such the same discovery procedures are available for use in probate court. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.) One part of probate proceedings is marshalling assets, which involves locating and taking inventory of a decedent’s assets. A representative may suspect third persons are withholding property or have knowledge about property, special discovery procedures can be used to require the third party to answer relevant questions. (Prob. Code § 8870-8873.)

In probate court, any time requirements laid out in the discovery act begin to run after service of petition and notice of hearing. (Prob. Code, § 1000(b).) This means a petitioner in a proceeding can begin discovery regarding parties and nonparties once a petition is filed. (Morris Stulsaft Foundation v. Superior Court In and For City and County of San Francisco (1966) 245 Cal. App. 2d 409, 415.) If they use it strategically, parties can rely on the Code of Civil Procedure to give them an advantage.

Continue reading →

What is the Probate Overbid Process? (Prob. Code, § 10311)

Published on: November 20, 2024 | By Underwood Law Firm, P.C.

underwood-law-probate-overbid-process-300x300 Probate sales are a unique real estate opportunity for buyers to purchase real property from the court after its owner died. Probate sales involve court confirmation hearings, during which an auction can result in an original purchase offer to be overbid by a new, higher, one. This auction is called the Probate Overbid Process. Probate sales and the Probate Overbid Process are often time-consuming, complex, and competitive, but offer buyers an opportunity to purchase property below market value. This article explores the probate sale and overbid process to help navigate the complex legal issues that might arise throughout each process.

What is a Probate Sale?

A Probate Sale is the legal process in which a deceased person’s property is sold to pay taxes and outstanding debts before distributing the deceased person’s remaining property to their heirs. A probate sale of real property occurs in various ways and are often facilitated by the court and a personal representative. A personal representative is the individual appointed to manage the deceased person’s estate throughout the probate process. (Prob. Code, § 58.)

Continue reading →

Is Title Determinative (In re Marriage of Valli (2014) 58 Cal.4th 1396)?

Published on: November 18, 2024 | By Underwood Law Firm, P.C.

underwood-title-determinative-300x300 In California, title is determinative in some instances. This means that a court’s characterization of property in a marital dissolution proceeding determines the division of the property between spouses. How a property is titled may also affect the property’s protection from creditors, taxes, and the probate process. Understanding how and when title is determinative is important because married individuals may hold title in various forms affecting their interests in dissolutions.

What is a Property Title?

A title is not a physical document given to individuals who acquire interest in property. Instead, a property title is a legal concept made up of various documents, like deeds and surveys, that represent various rights inherent in the ownership of real property. It is important to distinguish the difference between a Title and a Deed. Title refers to the concept of legal ownership of property. Oppositely, a deed is the physical document that transfers legal ownership of the property. In short, deeds help establish title.

Continue reading →

A Step-by-Step Guide to Notarizing Documents in California

Published on: November 13, 2024 | By Underwood Law Firm, P.C.

underwood-notarizing-documents-california-300x300 In today’s world, where authenticity and legality are very important, notarizing documents is a crucial step in many legal transactions. Whether you’re finalizing a real estate deal, creating a will, or signing a power of attorney, having your documents notarized adds an extra layer of assurance that they are legitimate and binding. If you’re in California and need to notarize a document, this step-by-step guide will walk you through the process.

Step 1: Understand the Role of a Notary Public

A notary public is an official authorized by the state government to witness the signing of important documents and administer oaths. Their primary role is to prevent fraud by verifying the identities of the signers, ensuring they are signing voluntarily, and witnessing the signing process.

Continue reading →

Can a trustee file a partition action? (Prob. Code § 16226.)

Published on: November 11, 2024 | By Underwood Law Firm, P.C.

underwood-trustee-partition-action-300x300 A trust set up for property gives beneficiaries a right to the property once the settlor has passed away. This means beneficiaries may become co-owners. However, the trustee may also hold an interest in the property as well. If the trustee is a co-owner of the property, they can file a partition suit. This is important if you are interested in filing a partition suit either as a trustee or co-owner of a property where the trustee holds an interest.

How can a trustee hold an interest in the property?

The trustor creates the trust and places the asset or property into the trust to be held and transferred. The benefit of the trust will be passed to the beneficiaries upon death. These beneficiaries receive the assets like property once certain conditions occur. For example, following the death of the trustor. The trustee will manage the trust and ensure it is carried out according to the trustor’s wishes. A trustee can be a beneficiary but, the trustee typically holds the property for the benefit of another. (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) This may impact future rights and interests in property, so the right to partition will only be upheld if it is in the best interest of the parties. (CCP § 872.710.)

Continue reading →

What is an Elder Abuse and Dependent Adult Restraining Order? (Wel. & Inst. Code § 15657.03(a)(1).)

Published on: November 9, 2024 | By Underwood Law Firm, P.C.

underwood-elder-abuse-dependent-restraining-order-300x300 The purpose of this article is to explain what an elder abuse restraining order is and why it is important. This type of restraining order prevents abuse against elder or dependent adults. (Cal Wel. & Inst. Code § 15657.03(a)(1).) The requirements to obtain this restraining order are laid out in the California Welfare and Institutions Code.

What are the requirements to get this type of restraining order?

To be eligible for this type of restraining order the person seeking it must be 65 years or older to qualify as an “elderly person.” To qualify as a “dependent adult” the person must be between the ages of 18 and 64 and have physical or mental limitations which restrict their ability to do normal activities and protect their rights. This applies whether they live independently or in an inpatient 24-hour health facility. For example, the facility could be a nursing home. This type of restraining order similarly applies if the diminished physical or mental ability is due to their age. (Cal Wel. & Inst. Code § 15610.23) Someone can file for a restraining order on behalf of an abused elder or dependent adult who has legal authority to seek such relief. This could be as their conservator, trustee, guardian, or acting in power of attorney. (White v. Davis (2023) 87 Cal.App.5th 270, 285.)

Continue reading →

What is a Motion in Limine? (Evid. Code, § 353)

Published on: November 8, 2024 | By Underwood Law Firm, P.C.

underwood-motion-limine-300x300 Motions in Limine are designed to facilitate case management before trial starts because taking a case to trial is an extremely evidence intensive process. Understanding how you can use Motions in Limine to protect and strengthen your case before trial starts is an important step to preparing your strongest case.

What is a Motion in Limine?

Motions in Limine are pre-trial motions used to exclude evidence. (Ca. Motions in Limine § 1:1.) In English, “Motion in Limine” means “at the threshold” or “in the beginning.” Accordingly, Motions in Limine are used to decide difficult evidentiary issues, or exclude unduly prejudicial or irrelevant evidence, before trial starts. (Id.) Motions in Limine protect parties from evidence being presented to the jury which damages their case, without any rational need for the evidence in the present proceeding. This is a necessary protection because attempts to “unring the bell” after evidence has been presented to the jury are obviously ineffective. (Blanks v. Shaw (2009) 171 Cal.App.4th 336.)

Continue reading →

Are rents recoverable in a partition action? (McWhorter v. McWhorter (1929) 99 Cal.App. 293)

Published on: November 1, 2024 | By Underwood Law Firm, P.C.

underwood-rents-recoverable-partition-action-300x300 In a partition action the sale proceeds are distributed based on a party’s interest in the property. (Code Civ. Proc., § 872.810.) This includes parties’ ownership interest as well as what improvements they made on the property or other factors. (Code Civ. Proc., § 873.220.) In pursuing partition by sale, division of proceeds may raise questions for owners as to what they can collect. Depending on how the property was used, one co-owner may have a claim against the other for rent.

Why a co-owner may claim they are owed rents:

Under the partition statutes, the court may allow an accounting or other adjustments to compensate co-owners under principles of fairness. (Code Civ. Proc., § 872.140.) Under these compensatory adjustments one co-owner may claim they are owed rents by the other co-owner.

Continue reading →

What is a Fiduciary Duty? (Corp. Code § 16404)

Published on: October 30, 2024 | By Underwood Law Firm, P.C.

underwood-fiduciary-duty-300x300 A fiduciary duty is a special kind of professional relationship that forms between an individual or entity and their client. California recognizes many types of fiduciary relationships; each carrying its own duties and expectations. Understanding how fiduciary relationships function, under what circumstances they are established, and how they can be violated will help you better protect yourself when navigating these professional relationships.

What is a Fiduciary?

A fiduciary is an individual who holds a special position of legal responsibility to their client, as a personal representative, guardian, trustee, conservator, attorney-in-fact, or custodian under the California Uniform Transfer to Minors Act, or any other applicable legal representative. (Prob. Code., § 39.) Fiduciary relationships commence when the fiduciary begins acting on behalf of their client for the client’s benefit.

Continue reading →