San Diego Estate Planning Lawyer Blog

TMZ has an article which discusses the probate issues with Dennis Hopper. Probate is the process by which a court administers an estate. Dennis Hopper recently died. He was married and filed for a divorce but his divorce was not final when he died. He also had a prenuptial which specified certain terms and conditions.

When Dennis Hopper died, the divorce action terminates as a matter of law and the case goes into probate court where the litigation will continue. The division of the estate's assets and debts will be decided by a probate Judge and not in a family law Judge. The factual pattern of a person passing away while going through a divorce is not as uncommon as one would imagine. It is very important, when going through a divorce, to consider whether or not modification to your estate plan is recommended. In a divorce case, since there are automatic temporary restraining orders when the petition and summons is filed and served, this needs to be considered in any change in the estate plan.

Continue reading " Dennis Hopper: Probate " »

The San Diego Superior Court has a probate court in the North County Branch in Vista. Department N-23 hears probate matters and the only other court in San Diego County is at the Madge Bradley Court House in downtown San Diego. Each probate court has its own policies and procedures and this will focus on the department in Vista.

For ex parte applications, there must be compliance with with requirement that there is a factual affirmative showing in the form of a declaration with competent testimony of personal knowledge that there is immediate danger, irreparable harm or any other statutory basis or local rule which permits ex parte relief. Ex parte hearings are heard on Mondays at 1:30pm and Thursdays at 2:00pm and notice needs to be given by 10:00am the day prior to the ex parte except under exceptional circumstances which requires a different showing. The pleadings must be filed with the business office by 10:00am the day before the hearing. Ex parte applications which do not include an Order specially prepared will not be considered.

There are also procedures for law and motion, evidentiary hearings and trials.

Continue reading " San Diego Probate Court N-23: Policies and Procedures: August 2011 " »

The San Diego Superior Court website has information about probate and other areas of the law. For probate, each department has its own policies and procedures. This article will focus on some of the procedures and policies for Department 2.

For ex parte, or emergency hearings, which are contested are heard on Tuesday and Friday at 8:45am by reservation only. All moving papers and declarations must be filed in the business office no later than 10:00am the day preceding the hearing. The procedure for the reservation can be obtained at the business office and can be complicated. All parties asking for emergency relief must provide notice and meet other requirements which include a declaration and the necessary attendant pleadings. There must be an affirmative factual showing in the declaration which contains competent testimony based on personal knowledge of immediate danger, irreparable harm or other legal basis for the emergency.

Law and motion matters are heard on Tuesday at 1:45pm and are governed by the California Code of Civil Procedure and the California Rules of Court.

Continue reading " San Diego Probate Court 2: Policies and Procedures: August 2011 " »

In San Diego, the San Diego Superior Court has three probate departments. Each department is different for the policies and procedures. This will be a series of three postings with links to the San Diego Superior Court website page with that probate court policies and procedures. These can change without notice so make sure to confirm that these are still in effect for your pending case. For Probate Court 1, the policies and procedures are very detailed.

For emergency relief, also referred to as an ex parte, the moving papers must show extraordinary circumstances as a prerequesite showing. This includes a written declaration under penalty of perjury showing that irreparable harm, immediate danger or some other extraordinary circumstances exists with personal knowledge. The pleadings must be filed in the business office and the ex parte applications are only heard on Tuesdays and Fridays at 8:45am. A reservation must be made and this is a limit on the number of reservations. There is also a notice requirement which needs to be strictly followed.

There are also policies and procedures for law and motion, trials, evidentiary hearings, telephonic appearances and telecourt.

Continue reading " San Diego Probate Court 1 Policies and Procedures: August 2011 " »

The United States Supreme Court, on June 23, 2011, decided that the order from the Bankruptcy Judge did not have the consitutional authority to "reach" into probate court. In San Diego, there are different courts for different issues. The San Diego Superior Court decides probate cases and the United States Federal Court decides bankruptcy issues.

USA Today posted an article about this case. Celebrity cases attract media attention and the case of Anna Nicole Smith has attracted a lot of attention. Anna Nicole Smith received millions of dollars during her life from her husband [E. Piere Marshall] however her estate asked for millions more. The United States Supreme Court is the highest court in the United States and the other courts are bound by their decision.

It is unknown whether this decision will end this case. It is clear that it is crucial, whether you are a celebrity or not, to have a valid estate plan so that your wishes are carried out after your death and to save your surviving heirs the cost and expense of extended litigation.

Continue reading " Anna Nicole Smith: United States Supreme Court Decision " »

The New York Times has many articles on estate planning. An article from 2010 is still very relevant and discussed six common questions regarding wills: do you need a will; can you do it yourself; do you need more than a will; what about a revocable living trust; how else can probate be avoided and where do you keep your will. Estate planning is a complicated area of the law and each estate plan needs to be tailored to your individual assets and requests for distribution of your estate.

All need a will. Without a will, the State will determine the disposition of your property. No one wants this and all would like to have their property go to who they want and not who the State determineds. A will can be done by yourself but this is not advisable for many reasons. A revocable living trust is designed to avoide probate and keep your estate private. Probate can also be avoided with strategies on certain assets such as life insurance polices. You should keep your will in a fireproof box and/or safe deposit box and make sure your executor knows where the will is kept.

Continue reading " 2010 New York Times Article: Getting a Will: Six Common Questions " »