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Questions Answered by Ernest Charles Payne Jr
5 Answers | Asked in Estate Planning, Family Law and Real Estate Law 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... Read 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... Read 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... Read 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... Read 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... Read 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?... Read 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... Read 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.... Read 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... Read 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... Read 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... Read 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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1 Answer | Asked in Business Law for California on
Q: I left a pest control company about 15 months ago. That company has been sold to a very big company.

I have, since I left that company, started my own company and I am ready to do business as a sole proprietor under my own operators license. How long do I have to wait until I can legally solicit the clients from my old route/ company? Thank you.

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Nov 11, 2020

If you signed a non-compete agreement with your prior employment, the term would be spelled out in that contract. Those agreements must be limited in scope and duration, and specific as to those parameters. If you didn’t sign any such agreement, then you may solicit whomever you wish, as long... Read more »

1 Answer | Asked in Probate for California on
Q: Question regards to probate asset inventory, attorney fees, engagement with a laywer no Will, no living trust, Dad CA

-My father deceseased in CA. he has no Power of Attorney, no Will and no Living Trust

- My dad didn't tell me if he named me as beneficiary on his IRA accounts. Fidelity and Vanguard delcined to answer beneficiary question due to now POA.

-How will probate referee will... Read more »

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Nov 6, 2020

Power of attorney issue is irrelevant. It terminates upon the death of the principal.

The probate code lists who the beneficiaries are under intestate succession (when the decedent passes without a will).

Any account (bank, retirement, life insurance, etc) with a listed beneficiary...
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2 Answers | Asked in Estate Planning, Real Estate Law and Tax Law for California on
Q: Can a husband leave real estate to an adult child instead of his spouse so it can be sold without capital gains taxes?
Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Oct 31, 2020

If the husband owns the house as his sole and separate property, he can leave it to whomever he chooses. If the house is community property with his wife, then he can leave his half to whomever he wants. The wife can leave her half to the son or whomever else she chooses.

As my...
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1 Answer | Asked in Probate for California on
Q: If you sign as a witness on a trust or will do you have the right to obtain a copy of what you legally signed ?

Yes. I am listed as a beneficiary for sure but don't know if its from insurance or retirement fund.

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Oct 28, 2020

In CA, a will must be witnessed. A trust does not need to be witnessed. You have no entitlement under the probate code to copies of either document merely because you signed it as a witness. You must have either a pecuniary interest (you are a beneficiary) or some duty (eg. Executor of the will or... Read more »

1 Answer | Asked in Probate for California on
Q: If you are have a medical POA for your father is that the same as a financial POA or does that make you the executor
Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Oct 28, 2020

They are three different things. The person listed on the advance directive (medical POA) may or may not be the attorney in fact for the financial POA. Moreover, those documents are no longer effective upon the death of the person who executed them. Executor refers to a person designated under a... Read more »

2 Answers | Asked in Probate for California on
Q: Can a son of a deceased person appoint himself as an executor of a pour over will in state of ca?

We dont know who the executor was since the will and all legal doc were stolen by his son

Ernest Charles Payne Jr
Ernest Charles Payne Jr answered on Oct 28, 2020

The pour over will should designate an executor. Moreover, the fact that it is a “pour over” will means there is a trust, so probate, and hence the executor duties, may not be necessary. Who is the executor of the will and trustee of the trust? They are frequently the same person.

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