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Questions Answered by Ernest Charles Payne Jr
1 Answer | Asked in Probate for California on
Q: Are the terms "Personal Property" and "Separate Property" one in the same?

I am seeing conflicting information regarding intestate succession and the surviving spouse.

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Aug 15, 2021

No. “Personal property” refers to the character of the property, specifically ordinary possessions. This is as opposed to real property, intellectual property, registered vehicles, etc. “Separate property” refers to ownership, meaning it is that person’s property and no one else’s.... View More

1 Answer | Asked in Estate Planning for California on
Q: I need to have translation of the Estate of Heggstad (1993), 16 Cal. App.4th 943
Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Jun 24, 2021

Do you mean you need an attorney to file a Heggstad petition for you? Or you want an explanation of the case? I don’t understand your question.

3 Answers | Asked in Estate Planning for California on
Q: Is it better to choose an estate lawyer who is located in or near the county where parent died?

...because they know how things work in that county, they know county staff if document issues arise, and their travel fees will be lower?

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on May 9, 2021

Yes. It will be helpful to hire an attorney who routinely files probate matters in that county’s court and is familiar with the local rules for that county.

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4 Answers | Asked in Estate Planning for California on
Q: Can my husband & I make changes to our living trust without using a lawyer, if our signatures are notarized? Thank you.
Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Apr 28, 2021

Yes. You can legally amend your trust without hiring a lawyer. If you are making a simple amendment, like changing a successor trustee, you are probably fine doing the amendment yourself. If you are doing something more complicated like changing beneficiaries or arrangements for succession of a... View More

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2 Answers | Asked in Business Law and Workers' Compensation for California on
Q: I have a small solar business. My workers are on 1099, I am the only one on payroll.

One of my workers filed for unemployment last year. the unemployment office penalized me for total $1655 for unpaid tax for October - December 2018. again, clearly I had nobody on payroll on 2018. can they do that?

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Apr 19, 2021

Assuming your business is operating in California, it is very likely you are violating the law by employing your workers as independent contractors. Look at AB5 (Assembly Bill 5) that went into effect 1/1/2020. If you’re not treating them as employees, and paying payroll taxes, WC insurance,... View More

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5 Answers | Asked in Estate Planning, Real Estate Law and Probate for California on
Q: Should my partner and I purchase our home as a joint tenancy or TIC? We are unmarried; He has kids from prior marriage.

We both want to be able to remain in the home, make improvements, or sell if the other passes away. He wants to ensure his children to receive his share of the proceeds if the house is sold after his death. We may get married and have more children in the future. What is the best ownership... View More

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Apr 12, 2021

Both have important legal consequences:

Joint Tenancy: If one of you dies, the other becomes the sole owner of the property by operation of law.

Tenancy in Common: If one of you dies, the other still only owns 50%, and the deceased owner's share passes to his/her heirs. The...
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2 Answers | Asked in Employment Law and Business Law for California on
Q: Vending Machine Stocking as a independent contractor?

Can I hire someone as a independent contractor to stock my vending machines using the business to business exemption to the AB 5 law if they have their own business license for services?

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Mar 21, 2021

The “ business to business exemption” is very narrowly tailored. Assuming the other party is a legitimate business, properly licensed to do the sort of business, eg stocking vending machines; he has his own place of business independent of yours; he is contracted with you in writing to perform... View More

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3 Answers | Asked in Estate Planning and Probate for California on
Q: Is there anything that has to be filed when one person in a joint trust dies? If so can I find out through county record
Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Mar 14, 2021

Not necessarily. If title to real property is involved, an affidavit of death may have been filed with the county recorder to change title. It will not give you the specific language/ contents of the trust, however.

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2 Answers | Asked in Estate Planning and Probate for California on
Q: Can my stepmom change a joint trust after my father has died to try to remove me from inheriting?

I honestly do not trust her not to try and pull something so her kids get it all so I am just curious. She doesn’t tell me anything and I have not seen any paperwork. I was just told by them years ago before my father passed away.

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Mar 14, 2021

It is entirely possible. It depends on how the trust is written and whether it was made irrevocable by your father’s death. Without seeing the document, no attorney can tell you for sure.

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1 Answer | Asked in Consumer Law, Contracts, Real Estate Law and Business Law for California on
Q: Is it legal for me to ask my clients for a deposit (50% of the inspection fee) ?

Or they can pay the total cost of the inspection fee no later than on the day of the inspection. Otherwise no report will be delivered to the client. To many times, clients don’t want to pay or want to cancel the inspection without giving ANY Notice, so if they pay a deposit they are less likely... View More

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Mar 6, 2021

Yes. That is legal, and completely reasonable. Just make sure you are completely transparent with your clients about your policy before you take their deposit to hold their inspection appointment, and under what conditions that deposit will or won’t be refunded. Good luck.

3 Answers | Asked in Estate Planning and Probate for California on
Q: Does California probate code 10800 apply if there is a will and a revocable trust in place?

My mom is 93 years old. She has bank accounts worth approximately $50,000.0, and her home is worth approximately $500,000.0.

We are setting up a revocable trust for all her assets. We have also created a last Will and Testament.

Ca. probate code 10800 implies that the executor shall... View More

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Feb 12, 2021

If the trust is properly drafted, executed, and funded then you should avoid probate and this section would be irrelevant to you as it deals with statutory fees due to a PR in probate. Of course, unfunded assets subject to probate may still get you there through the pour-over will. It sounds like... View More

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4 Answers | Asked in Consumer Law, Personal Injury and Products Liability for California on
Q: Broke my filling while flossing. No warning on floss packaging about potential issue. Bough floss at walmart. case?

I was flossing and accidentally broke my filling. I used the floss as advertised. There is no warning on the flossing package of the possibility of breaking a filling. Is it worth sueing the floss company for not including a warning on their packaging to get them to put a warning on their packages?... View More

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Feb 7, 2021

You have no cause of action.

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3 Answers | Asked in Banking, Bankruptcy and Identity Theft for California on
Q: Do I need a bankruptcy lawyer

Identity theft not caught until my credit card account was long depleted for my business

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Feb 6, 2021

File a police report for the identity theft (PC 530.5, et. al.) and a fraud claim with the bank and/or credit card company. You should not need to file bankruptcy.

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1 Answer | Asked in Real Estate Law and Construction Law for California on
Q: Can a licensed CA. General contractor perform home inspections and be hired to complete the repair work?

Is there any circumstances where a CA. Licensed General contractor can be paid for a home inspection and be hired separately for the nessasary repairs to the same home? B&P code says that home inspectors performing repair work can be considered as unfair business practices. Does that mean... View More

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Feb 6, 2021

You’re talking about CA B&P 7197. The law is pretty clear and the circumstances where a company performing a home inspection can also perform repairs are very narrow and limited: like roof repairs pursuant to a roof certification inspection or termite repairs pursuant to a termite report.... View More

2 Answers | Asked in Consumer Law and Small Claims for California on
Q: Is this False Advertising?

I requested dirt dumpsters from Republic Service. It is ~$500 per bin. The contract also mentioned the limit is 2 tons. Extra tonnage is $130/ton. I did not pay attention to the limit because I thought if this dumpster was for dirt, if I filled up, it should be around 2 tons. But when I received... View More

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Feb 4, 2021

No

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5 Answers | Asked in Estate Planning and Probate for California on
Q: In the state of California, if the decedent has 6 surviving children and no will, how is the exe or admi determined?

6 children, no will. Does oldest child automatically become administrator of any estate? If yes and other children wish to contest that appointment, is that possible?

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Feb 1, 2021

When the petition for probate is filed (form DE-111), the petitioner(s) will request a particular person be named as the administrator of the estate (there is no executor since there is no will). It can be, but doesn’t have to be one of the children. The probate code only requires it to be an... View More

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3 Answers | Asked in Estate Planning for California on
Q: If a child dies a is rewards money, who usually has rights to his estate.
Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Jan 22, 2021

The child’s parents. CA Probate Code 6402.

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2 Answers | Asked in Contracts, Estate Planning and Probate for California on
Q: My dad died before he signed amended trust, even though confirmed with estate planner, during covid?

My Dad received amended copy of his living trust 3 days before he died and had not signed them. He did contact estate attorney and confirmed draft. I don't believe signing them was exclusive, but I do know that my dad would want his last wishes honored. I know there must be mitigating... View More

Ernest Charles Payne Jr
Ernest Charles Payne Jr
answered on Nov 13, 2020

CA Probate Code 15206. The settlor (your father) must have signed the trust amendment for it to be valid and enforceable. There is no exception for Covid. Sorry.

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