California Probate Process Explained

The legal process begins with a “petition” (request) to open the estate and formally name a personal representative who is responsible for the administration of the deceased’s property. An Official Notice of Creditors is printed in a local newspaper and a Notice of Administration is sent to other involved parties. Creditors then have a set amount of time to file their claims based on the date of first publication. The personal representative then pays the debt and distributes the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.

This is a very simplistic overview of a complex legal process and you should engage the services of a skilled attorney. Upon your attorney’s recommendation, you may also be encouraged to consult with a CPA or tax consultant.

Probate – First month

File original wills and codicils (executor must petition for probate within 30 days or may lose right to be executor)

Publish Notice of Petition to Administer Estate (3 times before hearing date, 1st publishing must be at least 15 days prior to hearing)

Mail Notice of Petition to Administer Estate (at least 15 days prior to hearing)

File proof of publication and proof of mailing “Notice of Petition to Administer Estate”

File proof of will, if required and check calendar notes at least two days before hearing

File Order for Probate and if required probate bond

Letters issued – may be at the same time, or after filing order for probate

Next 4 – 5 months

Apply for Employer Identification Number

Notify Director of Health Services

Open Estate Bank account

Arrange for preparation of income tax returns

Prepare inventory & appraisements and send to Referee

Mail Notice of Administration to creditors, pay debts without requiring formal claims

File approval or Rejection of formal Creditor’s Claims

File Inventory and Appraisement with court

List property for sale with Realtor and start to market and sell property

File petition for Confirmation of Property Sale (if no IAEA Administrator)

Attend court hearing for overbids (if no IAEA Administrator)

File change in Ownership Statement with county assessor for all real property

File federal estate tax return if gross estate is valued at $675,000 or more

Final Month – Closing Estate

File Petition for Final Distribution

Mail Notice of Hearing to heirs and beneficiaries

File proof of mailing Notice of Hearing

File Order for Final Distribution

Transfer assets and obtain receipt

File Receipts and Affidavit for Final Discharge

Intestate Succession

The following is an attempt to simplify the manner in which separate property is distributed when one dies without a will.

If there is a surviving spouse, but no surviving children, parents, brothers or sisters:

All to surviving spouse

If there is a surviving spouse, and one surviving child:

1/2 to surviving spouse

1/2 to child

If there is a surviving spouse and more than one surviving child:

1/3 to surviving spouse

2/3 to children

If there is not a surviving spouse and no children, but there are parent(s):

All to parents

If there is not a surviving spouse, no children, and no parents:

All to siblings

If there is not a surviving, spouse the preferential order of distribution:

Children

Parents

Parent’s children

Grandparents

Children of grandparents

Children of predeceased spouse

Next of kin

Parents of predeceased spouse

Children of parents of predeceased spouse

State of California

Overbids

The Court must confirm the sale. At the time of the confirmation hearing, another buyer may overbid the original buyer. Typically overbids are offered at the hearing verbally. At the consummation of the confirmation hearing, the successful over-bidder will be required to execute the bid in writing and usually at this time, the buyer must present a 10% deposit.

There is a statutory formula for the first overbid. It is an additional amount equal to 10% or more, on the first $10,000 and 5% on the amount of the original bid in excess of $10,000.
For example:

Original bid = $100,000

First overbid must be 10% of 10,000 = + 1,000

5% of $90,000 = + 4,500

Overbid must be = $105,500

If the court receives an acceptable overbid, the court will ask for any additional overbids. The judge will usually establish minimum increments as to additional overbids. All overbids will be taken into account based on the gross amount (without taking into account any brokerage fees).

The above is only meant as a simplification of a very complex procedure, and only an attorney can give proper advice. Information that is more detailed can be found in Sections 6400-6413 of the California Probate Code.

Immigration Attorney, Do I Need One?

Immigration Attorneys, who are these people? Are they really vital for my immigration plans?

Immigration Lawyers or Attorneys are those people who have studied immigration law and graduated and passed the bar examinations. Their Law practice is regulated by the government. They can be of assistance to the applicants in obtaining immigrant’s legal status in their respective countries.

Besides these bar passers (Immigration lawyers), there are other persons or agencies that can assist or represent the future immigrants; as long as they are permitted by the government.

– An Accredited representative-a non-profit agency which charged modest fees to help immigrant’s with low incomes.

– The DHS -this agency of the government assists foreign nationals in matters related to legalities in migrating to the country. This department decides who can enter the country or who can stay. The officers of this government’s agency process the applications and petitions of foreign nationals, and have the power to enforce the immigration laws.

Important roles played by Immigrant attorneys:

– Deal with immigrant issues of applicants who migrate either permanently or temporarily. These issues include foreign nationals’ rights, obligations and duties to the country they are migrating.

– Deal with the processes of immigrant applications and citizenship procedures of the foreign nationals.

– Deal with immigrant issues regarding the legalities of asylees or refugees or people who cross the borders illegally, or part of the illegal transportation of aliens to the country.
What Immigrant lawyers can do which other agencies cannot?

– They are responsible and liable for all the information they provide for their clients.

– They are equipped with trainings and know-how regarding Immigration law and are updated with the latest changes whatsoever with regards to immigration.

– They are equipped with resources needed to assess the immigrant’s case, as cases differ from one another. They are the authorities to give legal advice on how to tackle whatever immigration problems arise.

Why do I need a Canadian Immigration attorney in migrating to Canada?

An applicant can choose what he wanted to do on how to secure his immigration status when he decides to migrate to Canada. He can do it himself; or he can employ a consultant; or he can make use of the Canada law firm’s services. A Canadian Immigrant Lawyer (and not just any lawyer) has all the capabilities discussed above in assisting the future Canadian immigrant.

To become assured and at peace with whatever decision an applicant is going to have; he can seek his friend’s advices (those who are already in Canada). The success or pitfalls of his friends will help him tremendously in his decisions. He can also search online; updates and assistance are available online.

Getting Into Canada After a DUI Conviction

Several years ago there was a time when a US citizen was allowed to enter Canada without any sort of intrusion or difficulties with the border patrol agents. Since 9/11 unfortunately a lot of things have changed at the border and the days of strolling into Canada with nothing more than a wink by the border patrol agents are long gone.

As a DUI Attorney I deal with a lot of people facing DUI charges, and sometimes people who have already been convicted. Its important to understand how to avoid certain collateral consequences such as a denial into Canada when reaching a resolution on a DUI matter. That alone would be an entire article and beyond what the scope of this. What I would like to address is what happens after a person is convicted of a DUI and how they can gain admittance into Canada after.

So lets talk about what happens if your DUI conviction is less than 5 years old. If you have recently been convicted of a DUI and you would like to gain entry into Canada as a US citizen your options are pretty limited. You can either try your luck at the border and risk being turned away. Or you can apply for a temporary resident permit. The cost is around $200 and be forewarned this process can take months and months, and there is a lot of paperwork to fill out.

If your DUI conviction is more than 5 years old then your options are a little better. As always you can try your luck at the border and risk being turned away. You can apply for the temporary resident permit discussed above. Or you can apply for approval of rehabilitation. The nonrefundable fee ranges from $200 to $1000 depending on the type of crime and severity of the offense. What you need to provide in order to be approved is a police certificate of criminal history from every state you have ever resided in since age 18. You will also need to provide dates of every home and work address since age 18. Again like the temporary resident permit this process can take months and months, with the average time frame being over 1 year.

Now lets some more than 10 years has elapsed since your DUI conviction. Since so much time has elapsed the Canadian consulate has decided to make it easier for these folks. You can actually arrive at the border and apply for approval of rehabilitation right then and there as long as the application is properly filled out. If approved then your past DUI will no longer be an issue and you can come and go as you please, and experience everything Canada has to offer.

This is a tricky area of law that can be quite confusing and is often misinterpreted. It’s best to speak with an experienced DUI Attorney who practices in your state

Attorney-Client Privilege

Privileged Communications

Solicitor-client privilege is the legal protection given at common law to communications between lawyers and their clients. Since the privilege belongs to the client and not the lawyer, only the client can waive it.

As a result, lawyers have a legal and professional obligation to refuse to make disclosure of privileged communications, except where the client has waived the privilege; or unless the lawyer is compelled to do so, by a court of competent jurisdiction.

This protection from disclosure assures that client can be absolutely candid with their lawyer without any fear that what is communicated between them will subsequently be used for another purpose, except with their prior consent.

The privilege between solicitor and client is a fundamental right; without it, the legal system could not function: Smith v. Jones (1999), 132 C.C.C. (3d) 225, (S.C.C.) per Cory J. at p. 239 who said, “it is the highest privilege recognized by the courts.”

Accountant Privilege?

Generally this protection has not been extended to accountants, either in Canada: Baron et al. v. The Queen, [1990] 1 C.T.C. 84 (F.C.T.D.) aff’d [1991] 1 C.T.C. 125 (F.C.A.); or, in the U.S.: United States v. Arthur Young et al. , (1984) 465 U.S. 805 (S.C.)

If an accountant is acting as an agent for a lawyer, to facilitate the delivery of legal advice then their work produce may be privileged: In re Goodman & Carr et al. [No. 1], [1968] C.T.C. 484 (Ont. S.C.); and Southern Railway of British Columbia Ltd., et al. v. Canada (Deputy Minister Of National Revenue), [1991] C.T.C. 432 (B.C.S.C.)

The criteria for determining whether to extend the privilege to accountants were set by the Exchequer Court of Canada: Susan Hosiery v. M.N.R. , [1969] C.T.C. 353.

Limited Or Absolute?

In England solicitor-client privilege has been found to be absolute. It was deemed too crucial to the administration of justice to interfere with: R. v. Derby Magistrates’ Court, [1995] 4 All E.R. 526.

In the U.S.A. attorney-client communications will generally be found to be privileged if the four criteria of the Wigmore test have been met: J. H. Wigmore, Evidence in Trials at Common Law, Vol. 8. (McNaughton Revision) Boston: Little, Brown & Co., 1961.

In Canada the privilege is not absolute, although its exceptions are narrow: preventing a risk to public safety (Smith v. Jones, above); preventing a risk to prison security (Solosky v. The Queen, [1980] 1 S.C.R. 821); where the communication itself is a crime (Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860); or where the accused can show their innocence is at stake (R. v. Leipert, [1997] 1 S.C.R. 281).

Although courts may override solicitor-client privilege: R. v. Dunbar and Logan, (1982), 68 C.C.C. (2d) 13 (Ont. C.A.), an override will not be automatic even where the accused needs the information to make full answer and defence: R. v. Mills, (1999), 139 C.C.C. (3d) 321 at p. 364 per McLachlin J.

A court will weigh the principles of fundamental justice, as well as, the provisions of the Charter before permitting the privilege to be set aside.

The Supreme Court of Canada has established a flexible, two-part test to balance the competing interests of an accused’s need to make full answer and defence, and the inviolability of solicitor-client privilege: R. v. O’Connor, [1995] 4 S.C.R. 411 (S.C.C.)

Privilege And Income Tax Act

Although Parliament recognizes the existence and application of solicitor-client privilege, it has incorporated into the Income Tax Act (“ITA”) a statutory exclusion for the “accounting records” of a lawyer. That means that lawyer’s journals, vouchers and cheques will not be protected from disclosure as privileged (§232(1) ITA), because of that restrictive definition.

Parliament has also provided that the procedures for the claiming of privilege over documents to be seized or examined is only applicable if those documents were in the possession of a lawyer at the material time: §232(3) and (3.1) ITA; In re Sandwell Ltd. , [1969] C.T.C. 617.

Should a seizure be made under §232(3) or (3.1) ITA then the taxpayer, or their lawyer, has only fourteen (14) days to make an application to a court for a hearing to confirm the existence of the privilege (§232(4) ITA). If an application is not made within that time a judge may order the documents delivered to CRA: §232(6) ITA.

One cautionary note for CRA is that §488.1 in the Criminal Code (“CC”), a provision similar to §232 ITA, has been held to be unconstitutional under §8 of the Charter. The Supreme Court of Canada found that the statutory procedures infringed the Court’s discretion in handling claims for solicitor-client privilege: Lavallee, et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209.

Comments made by Arbour, J. in Lavallee (at §21) suggest that §232 may also unconstitutional because it mirrors §488.1 CC.

Privilege And The Canada Revenue Agency

CRA has its own ideas about what is, or isn’t, properly the subject of a privilege claim by a lawyer.

For example, CRA publishes internally a guide for handling Privilege Claims during the execution of search warrants. Their document R350 E (99) recites, in part:

“(3) In spite of recent legal challenges, the following should be noted in respect to solicitor-client privilege: a. It is clear that the onus is on either the lawyer or the client to show that a solicitor-client relationship was in place so that solicitor-client privilege applies. b… the limits of solicitor-client privilege may not be fully understood by all members of the legal profession. Some lawyers confuse the principle of confidentiality with the rule of privilege” : pp. 1 – 2. [Emphasis added]

With this verbiage CRA gives the impression that CRA considers itself to be a better arbiter of privilege than are the lawyers who are professionally obligated to protect it.

Is CRA’s interpretation of the law of privilege correct? In this writer’s opinion – no – and for the following reasons:

i. it is not appropriate for CRA to counsel its officers conducting searches of law offices to ignore the law (i.e. , “in spite of recent legal challenges“);

ii. no search warrant can be issued with regard to documents that are known to be protected by solicitor-client privilege: Lavalle, above, §49.1;

iii. it is the obligation of CRA’s affiant to meet certain criteria and satisfy a justice of the same, before such a search can be authorized (Ibid. , §49.2 to .4; and §487 CC);

iv. although legal counsel ought to claim the solicitor-client privilege as a duty to their client, a failure to do so will not make a privileged communication admissible: Bell v. Smith, [1968] S.C.R. 664 (S.C.C.);

v. §488.1(8) CC reads, “No officer shall examine, make copies of or seize any document without affording a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2) “; and

§232(12) ITA reads, “No officer shall inspect, examine or seize a document in the possession of a lawyer without giving the lawyer a reasonable opportunity of making a claim under this section“.

In other words before CRA’s officers are to do anything they need to ensure that the taxpayer’s lawyer, or a member of the Law Society of the province, is present to protect the privilege interests in the material being searched.

Thus, the onus is on the searching officer to first ensure that the lawyer has a reasonable opportunity to make a claim; they assume that because no claim was made no privilege exists. CRA is also bound by the law: Ludmer v. Canada, [1995] 2 F.C. 3 (F.C.A.), Chevalier D.J. per curium at p. 17;

vi. Solicitor-client privilege may be raised in any circumstance were the privileged communication is likely to be disclosed without the client’s consent: Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860;

vii. Once a claim has been made under §488.1(2) CC (cf. , §232(3) or (3.1) ITA) the legislation defines the procedure for sealing and bringing an application before a judge to determine whether the seized/sealed materials are privileged §488.1(2) (cf. , §232(4) ITA).

The empowering legislation gives no authority to CRA officers to override the rights of lawyers to claim privilege or to otherwise abrogate the privilege itself.

In counselling its officers to do both CRA seems to be violating its legislative mandate, the prevailing case law, as well as, §8 of the Charter;

viii. CRA apparently still regards privilege as an evidentiary issue, but solicitor-client privilege has become a rule of substantive law: Solosky v. The Queen, [1980] 1 S.C.R. 821; Descoteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Lavallee, Rackel & Heintz v. Canada (Attorney General) et al. , [2002] 3 S.C.R. 209;

ix. Notwithstanding CRA lack of deference to the courts, it is the Courts and not CRA, which establishes the proper interpretation of the law: Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, at p. 875 per Lamer, J.; and

x. Any communications between solicitors and their clients which are intended to be confidential are afforded some protection: Greenough v. Gaskell (1833), 39 E. R. 618; Solosky, above; Smith v. Jones, above.

There is no justification in the ITA or in the case law, to permit CRA, or its officers, to usurp the decision making authority of the judiciary: Descôteaux v. Mierzwinski, above, at p. 891.

Properly Construed

According to Parliament it is the responsibility of the judiciary – not CRA – to decide whether a particular document is, or is not, subject to solicitor-client privilege: §232(4) ITA and §488.1(4) CC.

Arbour, J. in Lavallee (§20) stated that, “…solicitor-client privilege must only be impaired if necessary and, even then, minimally.”

In applying Lavallee principles the definition of ‘law office’ should be extended to “any place where privileged documents may reasonably be expected to be located“: Festing v. Canada (Attorney General), (2003), 223 D.L.R. (4th) 448 (B.C.C.A) at §30.

Policy Considerations

It is difficult to reconcile the Crown’s paramount obligation to uphold the integrity of the justice system, with such a restrictive interpretation of solicitor-client privilege as is found in R350 E (99), above: Lavallee, §§ 21, 22 and Charter §§7 & 8.

Privilege is an integral part of the administration of justice and legal counsel for taxpayers who have had privileged materials seized, or examined, will have to exercise eternal vigilance to ensure that their clients’ Charter rights have not been violated.

It remains to be seen whether CRA’s position vis-à-vis solicitor-client privilege will improve, but until such time as it does, taxpayers will have to rely on the courts.

Has Your Canadian Tourist Visa Petition Been Rejected? What Choices Do You Have?

Canada is one of the leading overseas destinations which continue to inspire a large number of visitors from practically all over the globe, who visit the nation using the various available Canadian visa options. Tourist Visa is a popular choice for gaining entry into the Maple Country (Canada).

However, much like other kinds of permits, it’s really not easy to get these prized Tourist Permits. In case one applies for such a visa, he may learn that his petition has been dismissed even as it could prove to be pretty upsetting and demoralizing for him.

What to do in such a circumstance? Re-applying post any Canadian visa refusal is always a good choice under the given circumstance. Though re-applying is one of the available choices for dealing with a permit refusal, one also has the option of appealing.

Which is a better option for a refused tourist permit-re-applying or appealing?

Which of the above given options to make use of– re-apply for a Canadian tourist permit, or proceed ahead with the procedure of the appeals–entirely depends on one’s specific personal circumstance. Besides, it also depends on the fact as to why one’s petition for a Canadian Permit was rejected at all.

A case in point is: does one believe that the presiding visa official made a mistake in refusing one’s petition, and there were no errors whatsoever in the petition on one’s own part? In case this holds true, one would do well to file an appeal against the petition refusal for Tourist Permit before the Canadian Federal Court.

It needs to be observed that it is a pretty difficult procedure even as the concerned applicant would tremendously benefit if he engages a registered immigration attorney–when the requirement for making a successful argument one one’s behalf in court–arises.

In case the aspirant has made an error on his initial petition, he would do well to re-apply with the right facts on the petition. For instance, the applicant may have made an error on his initial petition, and/or forgotten to incorporate some key papers, which could be essential for the petition to be duly entertained, like evidence of associations with one’s home nation, and evidence that one may well support self while inside Canada. The candidate will be also required to clearly give details on his petition as to why suddenly he has fresh data at his disposal, which may boost the likelihood of his petition being accepted.

In case one re-applies for a Tourist Permit on his own, he could be refused in the same manner as earlier. It is essential to ensure that the applicant thoroughly discusses his various available options with a registered immigration attorney before having his case thoroughly and properly evaluated by the said professional.