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This week’s question:

My husband and I own a home here in the Almaden Valley with a swimming pool in the back yard.  We have purchased another home and rented out the one with a swimming pool but it really worries me if something happened there.  Do we face any liability law suit if a tragedy should happen there?

/s/Kerry K.

Almaden Valley

Dear Kerry:

You have emailed in a very good question, Kerry, one that anyone with a swimming pool might want to think about.  As owners or tenants.

A very recent California court case dealt with that very question.  The case is entitled “Johnson v. Prasad”.  (Most computer browsers will have it on your monitor within a second.)

In the Johnson case, the property owners (landlords) rented out the home to their tenants.  The lease provided, in part, that the rental of the home included the in-ground pool in the back yard and that the owners would be entitled to access to the pool for maintenance purposes.

On the occasion in question, the tenants of the property hosted a party at the house with several guests present.  Unfortunately, four-year old Allen slipped thorough an unlocked door that his grandmother forgot to lock. Little Allen, unable to swim, was found at the bottom of the pool and later died.

Targets of the lawsuit that followed included the owners of the property, of course, as well as others.  The suit was brought by Allen’s mother, Melina Johnson.  Although the trial court ruled in favor of the property owners because of various reasons, the Court of Appeal for the Third District stated that the plaintiffs in that suit stated a case for the jury to decide.

The Court discussed the Swimming Pool Safety Act that was adopted on January 1, 2007.  Under that Act, several safety measures were adopted so as to prevent drowning like the one that happened in this case.  Although the home and pool in question were built before the Act became effective, the safety measures in question may have helped prevent a drowning.

The mother who lost her child alleged that the property owner negligently failed to properly fence-in the pool or to otherwise protect a child from accidently falling into the pool.  She also alleged that property manager for the owner negligently failed to ensure that the house met legal safety requirements before it was rented.

The Court of Appeal held that yes, the property owner owed a duty of care to little Allen.  This legal duty, then, was a matter of law for the Court to decide.  As stated above, the lease agreement specifically provided that the landlord was responsible for swimming pool maintenance and that the tenants had to allow access to the pool for such maintenance.

It was also held that the owner knew, of course, that the pool was included in the rent, and that it was foreseeable that young children would approach the pool regardless of their ability to swim and thus expose themselves to the risk of drowning.

The Court also discussed the Swimming Pool Safety Act that was adopted in California in 2007.  Even though the subject house was purchased prior to the adoption of that law and thus perhaps not technically governed by the law, the intent was clear.  That intent was to the effect that homeowners have some responsibility to prevent swimming-pool drowning.

Almaden Times readers can easily read not only the “Johnson v. Prasad” case but also the Swimming Pool Safety Act, adopted January 1, 2007.  It can be found in the California Health and Safety Code at Sections 115920 to 115929.

In any case like this one, the Court typically looks at a balance of the interests involved.  In this case, the Court found that the burden on the property owner was not that great in terms of time and money to properly fence in the pool or to install a self-closing or self-latching mechanism on the kitchen door through which the backyard and its pool were accessed.

On the other hand, the corresponding consequence to the community was the possibility of a saved life, like little Allen.

So, Kerry, yes, you and your husband could conceivably face a liability suit if a tragedy should occur there.  I would take every conceivable safety precaution I could and have plenty of homeowner’s insurance specifically applicable to your situation.  Best wishes in your planning.

/s/Donald J. DeVries

Almaden Valley

You can reach Mr. DeVries with your questions by email at, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries Law Office at 6475 Camden Avenue, Suite 200, San Jose, California 95120.  Your name will not be used.  No attorney-client relationship is created by these articles.




This week’s question:

My husband and I are working on our estate plan with a living trust as the centerpiece and we have in mind to leave some money to our grandchildren.  Is this possible without a lot of red tape including legal expense?

/s/Ashley A.
Almaden Valley

Dear Ashley:
We in California are fortunate to have a relatively easy way to leave money or even real estate to minors.This can be done in a variety of ways.Let me explain a bit.
First of all, you will want to work with your own attorney in this process, part of which is the drafting of a living or revocable trust.I would not go down to a stationary store or go online to print out some papers and fill in the blanks.
Within a living trust, you can specify that certain items pass to certain individuals even though they are not yet 18 years of age.The various rules are included in California Probate Code §3900-3925, called the California Uniform Transfers to Minors Act.
You can go online and enter that law in your favorite browser and hit “go”.The various provisions should be up on your screen in a very short time.
The person in charge of the gift for the minor is called a “custodian”, an adult of course.Under the Uniform Act, the gift can be completed at any age from 18 to 25.
Keep in mind that as long as you are alive, your revocable living trust is just that, you can change your mind at any time for any reason.
Under the Uniform Act, on the other hand, you would name one adult to be the custodian for the minor, and the gift is somewhat irrevocable.You would also probably want to name one or more alternates, or backups, just in case the named custodian cannot or would not serve for some reason.
The custodian for the minor could be the same person as the trustee of your trust or a different person.So, you could have one trustee of the trust and multiple custodians for different minors.
Virtually all forms of property may be gifts to minors, including money, securities, life insurance proceeds, annuity contracts, real estate, and other forms of tangible personal property.
The custodian is charged with several duties for the minor’s property under Probate Code §3912, including the duty to take control of the property, register or record title to custodial property if appropriate, and collect, hold, manage, invest, and reinvest custodial property.
Under that law, the custodian is also obligated to follow the standard of care that would be observed by a prudent person dealing with property of another.
You will want to give some thought as to the name of the person to be custodian of the property, since that person will have a lot of discretion and flexibility in dealing with the minor’s property.There are few restrictions on the custodian’s power to use custodial funds for the benefit of the minor.
It is also important to note that the custodian is not supervised by any court under normal circumstances.In some cases, a court petition might be available to compel a custodian to distribute funds or to compel an accounting, but normally the custodian has a lot of freedom to act.
If you state that the gift to the minor is to governed by the California Uniform Transfers to Minors Act, it is somewhat restrictive or rigid in its terms.
In your living trust on the other hand, you may want to specify other terms, such as the principle being payable in stages.For example, 1/3 payable at 21, 1/2 at 25, and the balance at 30, so that the gift is spread out equally over a period of years by the trustee with payments during the intervening years for support, education, and basic needs.
With a little more flexibility in your trust, you as settlor of your trust can provide more freedom for your successor trustee to suit the beneficiary’s particular needs with your wishes and objectives.
Under the Uniform Act you are also faced with restrictions as to where the gift goes if the minor does not survive, whereas with your living trust, you have other options.
It is for those reasons why a visit with your own attorney may prove quite beneficial, instead of just filling out a mass-produced form.
Best wishes in your estate planning work, Ashley.I’m sure you will find your project is quite worth while.

/s/Donald J. DeVries
Almaden Valley

You can reach Mr. DeVries with your questions by email at, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries Law Office at 6475 Camden Avenue, Suite 200, San Jose, CA 95120.Your name will not be used. No attorney-client relationship is created by these articles.

A Timely Trial Objection May Save Your Case

This week’s question:

I may need to take a friend to court over an unpaid loan that we made some time ago.  However, I am afraid that she may tell the judge about some unflattering things I said to her in private about someone else.  How can I be protected here and still get my money?

/s/Julie J.

Almaden Valley


Dear Julie—

You emailed in a very interesting question, Julie.  Although every case is different, some general principles apply to all cases that end up in court.

Chances are pretty good that your case will settle before it ends up in a trial in the courtroom, but if it does not settle, then the basic rules of evidence will come into play.

All litigants in a court case will need to follow the rules and procedures governing the presentation of evidence.  If we did not have these rules, there would be pure chaos.  Most of the rules make a lot of sense and are fair to both sides.

If a question is asked or if a document comes up that does not really pertain to the dispute, it may well be irrelevant.  And, of course, only relevant evidence is admissible in court.

So many things may have come up previously, but it must have something to do with an issue in the case.  If it is not relevant, it subject to a trial objection.  If an objection is made, the trial judge will need to rule on the objection.  That is part of his or her job.

There are many, many trial objections that may apply, far too many to even list in this brief column.  Each one has a definite reason for its existence and each one has the proper authority for its application.

Your attorney (and, yes, you should have an attorney) will have sufficient knowledge and experience as to what the trial objections are and how they may or may not apply in your particular situation.

For example, if your friend starts to say something to the judge in court about a private statement you made to her about a friend, it may well be kept out of court because it is not relevant to the money you loaned to your friend.

In California, trial objections are set forth in the California Evidence Code and in certain cases that have been decided by the Court of Appeal or California Supreme Court.

If you wish, you can see a listing of California trial objections by going online and bring up your favorite search engine.  I tried it with Google and entered California trial objections in the search box.

One option on the first search page was a Checklist of Objections published by Continuing Education of the Bar (CEB) that lists all of those objections.  Very interesting to say the least.

One can see that we definitely do have rules of evidence that apply to every case and that in each case, the parties must follow the rules.

It is also important to note that your objection must be made timely, i.e., right away.  If not, it could well be deemed waived.

Finally, let me issue a hearty welcome to our new Evergreen Times readers.

For many years now, about 27 to be exact, it has been my pleasure to write a legal column like this one for the Almaden Times. It is and has been called “Ask the Lawyer”.

The purpose of this column is to respond to various questions that our readers send in to us.  As can be seen in the closing message below, readers can send in their questions by email, fax, or print mail.

And as a reminder to our Almaden Valley readers as well, your name will not be used for obvious reasons.  Most people want their legal issues to remain private and we respect that 100%.  Only assumed names will be used.

I have been practicing law in Santa Clara County for the past 43 years and still enjoy the work immensely.  Readers’ questions usually deal with a variety of topics and are often of general interest to our audience.

As stated in the picture area above, past articles can be viewed in our web site  Chances are good that you will find one or more of interest to you.

Donald J. DeVries

Almaden Valley

Premartial Agreements May be Effective — Or Not…

This month’s question:

I am dating a young man and we have both been married before.  Since we both went through a bitter divorce, we are thinking about drawing up a premarital agreement.  Do you have any suggestions for a good agreement?

/s/ Ashley A.

Almaden Valley


Dear Ashley:

You have a very good question, Ashley, one that is often not considered.  By the way, a premarital agreement is also called a “prenup” sometimes, short for prenuptial agreement.  The terms are used interchangeably.

California has adopted the Uniform Premarital Agreement Act as of January 1, 1994.  Consumers can read its various provisions by going to their favorite online search engine and by entering the various Family Code provisions.

Before I go on, however, I need to stress a very important point.  It seems to me that each party is well advised to see their own attorney about such an agreement.  You both may have a lot at stake in terms of future issues years “down the road” and proper legal representation is essential.

California Family Code §1612(a) covers the matters that may be governed by a premarital agreement.  This includes certain property issues that may be involved in a separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.

It needs to be in writing, according to §1611.  It may not “adversely affect” child support, as provided in §1612(b), and it must be “voluntary” under §1615(a).  In fact, being “voluntary” is one of the most important provisions of the law.

One of the provisions of the various rules is that certain items need to be fair or “not unconscionable” at the time “enforcement is sought”.  Of course, this could be decades later, when enforcement is sought by one of the parties.

Some of the provisions also state that a party needs to have “independent counsel” at the time the agreement is signed, or waived such in a separate writing.  A seven-day waiting period may also apply so as to ensure the agreement is voluntary.

It is also essential that both parties have received a full disclosure of all property and financial obligations from the other party.

California Family Code §1613 states that a premarital agreement becomes effective upon marriage.

And another important point: §1614 provides that after marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties.  This is intended, it seems to me, to reduce the number of “he said” and “she said” disputes.

Thus, if you later sign typical living trust documents without specifically revoking the premarital agreement, the premarital agreement may trump your living trust documents that otherwise provide for an equal disposition of community property.

/s/Donald J. DeVries

Almaden Valley


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Which Alternative Dispute Process is Best for You Depends

This week’s question:

I have a contract problem with a very good friend and I may need to file suit in court.  I have read a little bit about alternative dispute resolution that may work to keep a case out of the courtroom.  What do you think is best for me?  Is there any way our dispute can remain confidential?

/s/Maureen M.

Almaden Valley


Dear Maureen—

Those are very good questions, Maureen.  It is good that you are thinking about it.  Let me offer some ideas.

One form of alternative dispute resolution (“ADR” in our jargon) is mediation. This is basically a discussion process where both sides meet with a qualified person to try to work out a settlement.  If it works, the case is over.

Another form of ADR is neutral evaluation.  In this setting, a qualified third-party would give you his or her assessment of the case in a non-threatening environment after all of the facts are presented.

Still another form of ADR is nonbinding judicial arbitration.  Your case is heard and a ruling is made by a qualified arbitrator, but the unhappy person could reject the decision within a certain period of time.

If nonbinding judicial arbitration is not going to work, perhaps binding private arbitration would be helpful.  Here, both sides would agree that a private arbitrator’s decision would be be final.  Court proceedings would be waived, including any right to appeal.

A mandatory settlement conference is usually set in most court cases.  This is another form of possible settlement prior to going to trial.

I have found that there is no one form of ADR that is best for all situations.  It depends on the circumstances of the particular situation.  There is no “one size fits all”.

If I were you, I would have a consultation with an attorney to discuss ADR in some detail.  Many factors are involved, such as timing, cost, personnel, personalities, and the like.

Also, some contracts and other kinds of situations require mandatory mediation or arbitration at one point of time or another.  Of course, you must be in compliance with the contract.

You might also like to know that the California Evidence Code §1119 provides in most mediation settings all proceedings are and shall remain confidential.  This is a very important feature, especially where privacy is an important consideration.  You can read that law yourself with the help of your computer browser.

Finally, on a personal note, this will be my last column in this publication for a few months.  The Almaden Times will invite other writers to make their guest columnist contributions during that time.  Be on the lookout for my return in due course.

/s/Donald J. DeVries

Almaden Valley


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Whether a Reverse Mortgage is a Good Idea May Depend

This week’s question:

We live in the Almaden Valley and have a nice home with quite a bit of equity in it.  We have a few bills to pay but are a little short of cash.  I have read a little bit about reverse mortgages and am a little confused.  Are they legal for us senior citizens?  Is it a good idea financially to do that?

/s/Jack J.

Almaden Valley


Dear Jack—

First of all, it is important to keep in mind that these two questions are very much distinct and separate questions.  Let’s take the first one first, since that is a bit easier.

Generally speaking, yes, reverse mortgages are legal.  This assumes that the lender, loan broker, and the rest have complied with any and all aspects of federal and state law.

There are many restrictions that need to be followed, such as minimum age of the borrower such as you, the value of the property involved, set aside rules of funds needed to cover mortgage payments, and the like.

Another rule that lenders and brokers need to follow now is that of mandatory loan counseling before the loan is approved.  And that leads us to your second question—whether a reverse mortgage is a good idea financially.

When one sees and hears all of the wonderful advertising about the benefits of obtaining money from your home equity, it all sounds so good.  Almost too good to be true.  And that’s when you want to be very careful.

It is one thing to obtain a loan without income to qualify for the loan, but it is another thing to consider the consequences that some of the smooth advertisers do not point out.

You as a homeowner need to be very cautious about mortgaging your home since you may live many more years and may encounter larger that expected medical bills or other expenses as the years go by.

I would do a lot of reading on the topic before I obtained a reverse mortgage (actually called a deed of trust in California) against my home.  Look for an independent source of information, such as AARP, an acronym for American Association of Retired Persons.

One of the better articles that I have read on this subject is from the April, 2013 issue of the AARP Bulletin, Vol. 54, No. 3.  You can read that article online by going to

If you are internet challenged, ask a family member, friend, or neighbor to retrieve it for you.  It starts on page 22 of that publication.

Read other articles as well and talk it over with your own financial advisor.  And, of course, financial counseling is now mandatory.

Best wishes with this project, Jack.  I hope it turns out well for you.

/s/Donald J. DeVries

Almaden Valley


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The “Innocent Spouse” Rule May Help You Out With Tax Issues

This week’s question:

I just signed our tax returns again on April 15 along with my husband, filing status “married joint.”  I have often wondered whether I am liable if something is not right, even without me knowing about it.

/s/Stephanie S.

Almaden Valley


Dear Stephanie:

You emailed in a very good question, Stephanie, one that many spouses may be wondering about this time of year.

There may be some protection for you if you are classified as an “innocent spouse” under the Internal Revenue Code.  Of course, if both spouses are equally knowledgeable and intentional about fraud on the government, they may both have a real problem.

We need to start out with the basic rule that both spouses have “joint and several” liability when they file joint returns, even if they later divorce.  “Joint and several” liability means that each taxpayer is legally responsible for the entire liability, not just half of it.

In some cases, however, a spouse can get relief from joint and several liability.  There are three types of relief from joint and several liability for spouses who filed joint returns: (1) innocent spouse relief (2)separation of liability relief, and (3)equitable relief.

Each of these categories of possible relief has its own rules and regulations.  Space limitations in this column are such that it is difficult to say very much about each category, but there is a lot of information readily available on the internet.

If you want to learn more about the “innocent spouse” rule and related topics, head for your favor search engine on your computer.  Enter the words “Internal Revenue Service” in the search box.

Then enter “Tax Topic Index” and “Topic 123”.  At the top of the page will be “Frequently Asked Questions” and after that select “Innocent Spouse Rules”.  That will lead you to “Eligibility Explorer” and more information for innocent spouses.

Topic 205 is especially helpful since it has a good summary of innocent spouse rules as well as separation of liability and equitable relief.

You will also see IRS tax form 8857 that is very helpful and illustrative of some of the information the IRS needs from you in case the need arises.

As you peruse the IRS web site be sure to look for the six-page article entitled “Innocent Spouse Questions and Answers”.  This information is particularly helpful since it covers such questions as how to request relief, where should you file your claim, how long the process will take, and other topics.

Along the way, be sure to consult with your tax attorney or certified public accountant.  This area of the law can be very confusing and complex, to say the least, and good professional help is essential.

/s/Donald J. DeVries

Almaden Valley


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Malpractice Suits Come in All Shapes and Sizes

This week’s question:

I have often wondered about this.  If our vet was negligent in the care of our beautiful family dog, would we have grounds for a malpractice suit against him?

/s/Angela A.

Almaden Valley


Dear Angela—

Most of us have heard about medical malpractice suits, and yes, even legal malpractice suits, but veterinary malpractice suits may be a bit less common.  However, they do exist in our system of justice.

A March, 2013, case in California discussed these principles.  The case arose in San Diego county after a veterinarian was employed to perform prepurchase examinations on two performance horses named Syrus and Poncho.

The vet performed the prepurchase examinations and concluded that both horses were suitable for their intended uses as competition hunter jumper horses.

Based on the prepurchase examination reports, the plaintiff  went ahead and purchased the horses.  However, sometime after the purchase, the horses began to manifest physical problems that interfered with their ability to compete.

At trial, the jury awarded $46,000 in damages for the negligent examination of Poncho.  However, the Court of Appeal for the San Diego area reversed the trial court since there was no substantial evidence of an applicable standard of care.

The Court of Appeal pointed out that there must be evidence in the record of the relevant recognized standard of care exercised by other veterinarians in the community.

“Standard of care” is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony.

This is because the standard of care in a veterinarian malpractice case requires the veterinarian exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.

In this particular case, the plaintiff’s expert testified that “to me” the vet’s conduct fell below the standard of care but he evidently did not testify as to the standard of care in the veterinary community.

It was incumbent upon the plaintiff to show that the vet’s conduct was not consistent with what other doctors in the community would have arrived at under similar circumstances in the exercise of reasonable care.  If not, the defendant wins.

Almaden Times readers can read the case for themselves quite easily.  The case is entitled Quigley v. McClellan.  You can use your favorite search engine and enter the name of the case.  It will be up on your screen in about a tenth of second from multiple sources.

Finally, Angela, it seems to me that this basic “relevant standard in the community” is the test for many different kinds of malpractice cases.

/s/Donald J. DeVries

Almaden Valley


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Keeping Your Estate Planning Documents Close By May Be Better

This week’s question:

My parents live in Los Angeles and just had their living trust and wills done there.  After the signing, their attorney recommended that he retain the documents in his office safe, and they followed his advice.  Is this a good idea?

/s/Nicole N.

Almaden Valley


Dear Nicole—

It seems to me that it is much better for the client to have the originals of all estate planning documents close by, like in a safe deposit box at the client’s bank or in a good home safe.

They should also have a copy of all signed documents just in case something happens to the originals.  We in our office have not retained any originals in 43 years of law practice, and I will tell you why.

The responsibility that the attorney has for those documents is awesome.  If something happens to those papers, it could result in a huge law suit against the lawyer for negligent safekeeping of estate planning documents.

California Probate Code §710 states that if a document is deposited with an attorney, the attorney, and a successor attorney that accepts transfer of the document, shall use ordinary care for preservation of the document whether or not consideration is given, and shall hold the document in a safe, vault, safe deposit box, or other secure place where it will be reasonably protected against loss or destruction.

“Documents” are defined in Probate Code §704 as any of the following: a signed original will, declaration of trust, trust amendment, or other document modifying a will or trust.  It also includes a signed original power of attorney, or signed original nomination of conservator.

We also need to keep in mind that the papers are the property of the client, not the attorney.  The client has every right to decide where to store the originals and any copies of those important documents.

Once the documents are signed, many clients like to give a signed copy to their alternate trustee and/or alternate executor.  However, that is a matter of personal preference.  Some clients prefer to keep the documents more confidential.

If the client (“depositor” in the Probate Code) wants the papers back from the attorney, all they need to do is ask (“demand”) for the papers and the attorney shall deliver the documents to the client.  This is very clearly specified in Probate Code §720.

Special rules govern the situations where the attorney has become incapacitated or is deceased.  Special care must be taken to ensure that the documents are delivered to the proper person.

Almaden Times readers can read these rules (and associated topics) for themselves by heading to their computer and bringing up their favorite search engine.  Look for California Probate Code Sections 700-735.

/s/Donald J. DeVries

Almaden Valley


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How to Disinherit Someone if you are Sure

This week’s question:

We have a son who has gone off the deep end and we want to leave him no part of our estate.  My husband and I have tried everything, all to no avail.  How can we make sure our son is disinherited?

/s/Stephanie S.

Almaden Valley


Dear Stephanie—

Sorry to hear about your situation, Stephanie.  That must be very, very difficult.

If you have thought it through carefully and feel you have no alternative, you do have the right to disinherit someone who would otherwise be entitled to a share in your estate.

There are several protections established by the California Probate Code for omitted spouses and children in certain situations.  Sometimes, for example, people may honestly forget an old will or trust where the “new” spouse or child is not named.

It is for those situations that the California Legislature has adopted certain safeguards for their protection, i.e., the innocently omitted spouse and/or child.

Let us assume that your situation is quite different, since it sounds like it definitely is.  A child of the “testator” (will maker) born or adopted after the will was executed must be specifically omitted from the will or they may be able to claim their “intestate” share as an omitted heir.  (Probate Code  §21620 & §21621).

Other examples are as follows:

-A child omitted because the testator mistakenly believed the child to be deceased (Probate Code §21622).

-A child of whose birth the testator was not aware (Probate Code §21622); or

-A spouse who married the testator after the execution of the will (Probate Code §21610).

I am not certain whether stepchildren or foster children may claim as omitted children.

So, if you have thought it through and want to disinherit that son, I would first of all seek the advice of a California attorney at law.  He or she would be the best person to help you.  There is no substitute for your own family lawyer.

If it came to disinheritance, the language might read something like: “I specifically make no provision in this will for our son, John J. Jones”.  The person needs to be named, but no reasons or detail need be stated.  You want to keep anger and other negative emotions at a minimum.

As I often say, Almaden Times readers can read some of these rules for themselves by entering the California Probate Code Section number indicated above in their favorite browser.

If you do so, the various rules should be up on your screen in a fraction of a second.

Once again, Stephanie, you and your husband will want to see your own personal attorney for your wills and living trust.  Best wishes in this project.  I’m sure you will be pleased when all of the documents are completed.

/s/Donald J. DeVries

Almaden Valley


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