Divorce: “Petition to Publish” Rather than Serving Your Spouse

A sad young man who lived in Albany, “Ben”, came into our Oakland office. He and his wife were married for 15 years; they’d separated 18 months ago and he was still devastated. His wife had moved away, and he wanted to file for divorce, hoping this would create some finality so he could get past this. There were no children, so this significantly simplified the divorce process for this couple.

Filing a Petition to Publish

Benjamin had done some research, and he wanted to file a “Petition to Publish” rather than having to serve his wife personally because he didn’t know—but more importantly—he didn’t want to know where she was living. He was still very hurt about his wife’s leaving, and he thought it would be easier if he didn’t have to meet with her in order to serve her.

Service by publication: publishing the summons in a local newspaper

According to California law, if you don’t know the whereabouts of your spouse or domestic partner to properly serve him/her with your filed summons and petition (or some other document), you can ask the court for permission to serve your papers "by publication" or "by posting." "Service by publication" means that you publish the summons or other document in a newspaper of general circulation in the area where your spouse is likely to live. The summons must be published weekly for four consecutive weeks, and the publication invoices accordingly.

Getting court approval for a Petition to Publish can be difficult

The courts strongly encourage personally serving documents on the other party, so it can be difficult to get a Petition to Publish approved by the courts. Even though our client was willing to pay additional fees to have the paperwork prepared, he realized that, as part of the paperwork, he couldn’t swear under penalty of perjury that he had made every effort possible to find his wife. The courts require that the petitioner diligently record every effort he/she has made in the effort to locate the other party, which can be very time consuming and may include:

• Publication in a newspaper in the last known city the respondent lived.
• Detailed logs of attempts to locate the missing spouse through internet searches and social media.
• Checking DMV records.
• Scouring the white pages.
• Contacting relatives and persuading them to divulge the address.

Most people find the process of searching and documentation daunting. They realize that it would be easier to reach out to likely sources and locate the missing spouse than try to get court approval for a Petition to Publish. Ben agreed that getting a divorce was his primary goal and this process would further delay his divorce.

Ben renewed his search, located his wife and hired a process server

Ben restarted his search and eventually found a friend who provided his wife’s current address, and he hired a process server to serve her with the dissolution paperwork, circumventing his having to personally interface with her. Now that his wife has been served, as long as she does not file a response with the court, we will be able to help him finish the dissolution process without her involvement, easing the divorce process as much as possible for Ben.
Are you thinking about Divorce but need more information about how we work with our clients? Call California Document Preparers at one of our three Bay Area offices today to schedule an appointment. We’re helpful, compassionate and affordable.

"Forgotten" Tahoe Property Results in Probate

Probate is never easy for a family. It comes at a time of loss and grieving. Depending on the complexity of the estate, it can be extremely time-consuming, and it can be expensive. There’s generally also a sense of remorse. If parents or loved ones had only created a Living Trust, funded it and kept it updated, all of this could have been avoided.

Danville resident “Kathleen” recently came in to our Walnut Creek office seeking information and direction. Her Mom had died peacefully in her Walnut Creek home in July and Kathleen was now in charge of settling the estate. Thankfully, at the urging of her daughters, mom had created a Living Trust and Kathleen trusted that all of her assets were titled in the name of the Trust.

A Tahoe vacation property had never been moved into the Trust

In reviewing the paperwork, however, Kathleen realized that her mother’s Tahoe vacation home, which the whole family had enjoyed over the years, had never been moved into the Trust. In order for Kathleen to settle the estate so she could divide the assets with her siblings, she had to sell the Tahoe property, which meant Probate. Kathleen would have to open a Probate case, then be appointed by the court as Executor of her mother’s estate.

A Living Trust must be properly funded and updated

When a Living Trust is set up, it is important that all assets be transferred into the Trust, including vacation property. Note that this also includes timeshares—something that frequently gets overlooked. California Document Preparers can help with Deed transfers anywhere in the United States. Kathleen learned the hard way–having a deed prepared and recorded is a lot simpler and much less expensive than Probate.

Of course we do Probate!

Unfortunately, more than 50% of Americans die without a Living Trust, which means their heirs must go through Probate. If the Probate is uncontested, California Document Preparers can help you—and also help you save a considerable amount of money. Call today for an appointment. We’re helpful, compassionate and affordable.

Estate Tax Law Changes Make it Time to Amend Dated AB Trust

Many of our clients are coming in to simplify their old AB Trusts. The AB Trust was originally designed to create estate tax savings by keeping the deceased spouse’s property out of the estate of the surviving spouse. In 2011, however, a dramatic change in the federal estate tax laws exempted most estates from paying any estate taxes. For 2017, for example, the exemption is $5.49 million, which quickly eliminates the vast majority of Americans.

How the AB Trust works

When the first spouse dies, the Trust is divided into two Trusts: Trust A and Trust B. Trust A receives half of the couple’s community property and the surviving spouse’s separate property. Trust B receives the other half of the community property, and the separate property of the deceased spouse, but with the surviving spouse named as life beneficiary of the Trust. The surviving spouse can receive all income from Trust B and may also receive some principal, if Trust A is exhausted.

Results of the estate tax laws changes

The results of the estate tax law changes mean that an estimated 1% of the US population now pays any estate tax at all. This makes the old AB Trusts dated and cumbersome for the vast majority of Americans.

Limitations of the AB Trust

• Restrictions on what the surviving spouse can do with AB Trust property can make it difficult to sell assts.
• The surviving spouse cannot make gifts of the AB Trust’s property to anyone.
• There can be substantial costs involved in managing the AB Trust after the death of the first spouse—preparing taxes and ensuring that this property is kept separate from that of the surviving spouse.

The reality is that the AB Trust is no longer necessary or advisable for estate planning. We are helping many of our clients amend or restate their Trusts to remove the AB Trust provisions.

Do you and your spouse have an AB Trust that you’d like to amend? Call California Document Preparers at one of our three Bay Area offices today to schedule an appointment. We’re helpful, compassionate and affordable.

Estate Tax Law Changes Make it Time to Amend Dated AB Trust

Many of our clients are coming in to simplify their old AB Trusts. The AB Trust was originally designed to create estate tax savings by keeping the deceased spouse’s property out of the estate of the surviving spouse. In 2011, however, a dramatic change in the federal estate tax laws exempted most estates from paying any estate taxes. For 2017, for example, the exemption is $5.49 million, which quickly eliminates the vast majority of Americans.

How the AB Trust works

When the first spouse dies, the Trust is divided into two Trusts: Trust A and Trust B. Trust A receives half of the couple’s community property and the surviving spouse’s separate property. Trust B receives the other half of the community property, and the separate property of the deceased spouse, but with the surviving spouse named as life beneficiary of the Trust. The surviving spouse can receive all income from Trust B and may also receive some principal, if Trust A is exhausted.

Results of the estate tax laws changes

The results of the estate tax law changes mean that an estimated 1% of the US population now pays any estate tax at all. This makes the old AB Trusts dated and cumbersome for the vast majority of Americans.

Limitations of the AB Trust

• Restrictions on what the surviving spouse can do with AB Trust property can make it difficult to sell assts.
• The surviving spouse cannot make gifts of the AB Trust’s property to anyone.
• There can be substantial costs involved in managing the AB Trust after the death of the first spouse—preparing taxes and ensuring that this property is kept separate from that of the surviving spouse.

The reality is that the AB Trust is no longer necessary or advisable for estate planning. We are helping many of our clients amend or restate their Trusts to remove the AB Trust provisions.

Do you and your spouse have an AB Trust that you’d like to amend? Call California Document Preparers at one of our three Bay Area offices today to schedule an appointment. We’re helpful, compassionate and affordable.