March 2011 – Lonich Patton Ehrlich Policastri

Choosing the Right Executor

March 31, 2011/0 Comments/in Estate Planning, Probate /by Lonich Patton Ehrlich Policastri

Recently, the New York Times published an interesting article advising individuals on how to choose the right executor for an estate. An executor is an individual responsible for an estate before the estate is closed (transferred to its beneficiaries).

The author indicates how estate planning in 2011 is particularly burdensome on executors because of the recent tax law changes President Obama signed in December of 2010. In short, portability (the ability to pass the federal estate tax exclusion to a surviving spouse, described in a previous post), must be if at all exercised by the executor. This new responsibility coupled with the traditional responsibilities of an executor will require an organized and honest individual who has the best interest of your beneficiaries at heart. The article continues with other practical considerations when choosing an executor including why a professional or a family member may be a more suitable executor, for the full New York Times article click here.

Additionally, it is a prudent idea for individuals to review their estate planning documents because of the recent estate planning changes in 2011. Currently the new tax laws affecting Estate Planning are only set to be active for 2011-2012.

If you are interested in learning more about Estate Planning, please contact San Jose Estate Planning Lawyers at Lonich Patton Ehrlich Policastri, LLP. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Does Your Loved One Need a Conservator?

March 29, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

A conservator is a person appointed by the court to manage the health care and/or financial matters of an adult (the conservatee) who is found to lack the legal capacity to care for themselves. A conservatee does not lose all of his or her rights. The conservatee retains the right to be treated with understanding and respect, have his or her wishes considered, and to be well cared for. In addition, conservatees retain the right to ask a judge to end or change the conservatorship.

There are two types of conservatorships: conservator of the person and conservator of the estate. A conservator of the person arranges for the conservatee’s care and protection and decides where the conservatee will live. The conservator of the person is also in charge of health care, food, personal care, and housekeeping. However, a conservator cannot move the conservatee out-of-state. In addition, the conservator cannot put the conservatee in a mental health treatment facility. A conservator may be able to move the conservatee into a special residential care facility provided certain protocol is met.

A conservator of the estate is responsible for managing the conservatee’s finances, protecting his or her income and property, compiling a list of everything in the estate, making a plan to make sure the conservatee’s needs are met, paying the conservatee’s bills, and other duties. A conservator must remember to keep his or her own assets separate from the conservatee’s assets.

For more information on conservatorships, please visit Lonich Patton Ehrlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Divorcing and Thinking about Adopting a Baby as a Single Parent?

March 25, 2011/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

An article recently published in the Huffington Post discusses a new trend emerging in Hollywood: recently divorced celebrities adopting babies. The list of Hollywood’s recently divorced mothers with newly adopted children is growing. Madonna adopted a child after her split from Guy Ritchie. Sandra Bullock also adopted a child after she divorced Jesse James. Most recently, reports circulated that suggest that Eva Longoria is looking to adopt a child after her divorce from Tony Parker is finalized.

While this trend may be growing, particularly within the celebrity community, the Huffington Post article tries to make a point: while adoption is a wonderful thing, adoption immediately following a divorce may pose a variety of difficult challenges . As any divorced person could recount, divorce is a stressful, life-changing event. Recently divorced individuals must cope with a new lifestyle while dealing with raw emotions. As cute as babies can be, they need ample amounts of love, attention, and patience. As many new divorcees are running low on emotional stamina, it may be difficult for them to cope with the demanding needs of a newly adopted child.

For more information about California divorce, please contact us. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Source:

The Huffington Post

Why You Should Get Clean: Your History of Drug or Alcohol Abuse Can Affect Your Child Custody or Visitation Rights

March 24, 2011/1 Comment/in Family Law /by Mitchell Ehrlich

California family law requires that before child custody and visitation orders are made, a judge must take into consideration what is in the child’s best interest. When a judge is considering what is in the child’s best interest, he or she may look at any factors that are relevant. In addition, the judge must consider the child’s health, safety, welfare, history of physical abuse, and either parent’s habitual drug use. If you are a parent with a substance abuse problem, it is very important that you obtain treatment for this problem so that you can provide a safe and stable environment for your children.

Before a court considers allegations accusing a parent of drug or alcohol abuse, the court may require “independent corroboration.” This means the court may want to see written reports from law enforcement, courts, probation departments, social welfare agencies, or drug rehabilitation centers. In addition, the court may order a parent seeking custody or visitation to undergo drug or alcohol testing. The court may also require the parent who is tested to cover the costs of the testing.

Please contact us for more information about child custody and visitation rights and how issues of drug or alcohol abuse may affect those rights. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

New York Times Article Urges Aging Parents to Talk to Adult Children About the Potential Need for Financial Supervision

March 22, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

The New York Times published an interesting article advising aging parents to keep the lines of communication open with responsible, adult children. The article points out that while it is extremely difficult for elderly parents struggling with memory loss or the onset of dementia to give up autonomy, it is important that responsible children step in to help care for their parent’s financial responsibilities.

While initiating a conversation about your parent’s possible future need for financial supervision is a challenge, the New York Times author suggests opening the dialogue in the doctor’s office. Your family physician may be a supportive moderator of the conversation as he or she is likely aware of the dynamics of the situation. For the full New York Times article, please click here.

In addition to talking with your parents about financial supervision, it is highly recommended that aging parents update their necessary legal documents. If your parents are in good mental health now, it is recommended that they start thinking about who would be a good person to appoint as a power of attorney. A power of attorney is an individual chosen to represent someone in relation to health care and property matters. The power of attorney can act to make important decisions for the individual they are representing when that individual is unable to make those decisions for him or herself. When selecting someone to act as a power of attorney, a person should make sure the chosen representative is responsible, loyal, and consents to acting in this capacity.

If you are interested in learning more about a power of attorney, please contact San Jose estate planning lawyers at Lonich Patton Ehrlich Policastri for more information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Should You Leave a Gift to Your Pet in Your Will or Provide For Your Companion Animal Through a Trust?

March 18, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

An outright gift to an animal is void under the ruling of Estate of Russell. In that particular case, the testator left a gift to her dog, Roxy Russell, via her will. The court ruled that a dog could not be a beneficiary of a will under the California Probate Code. However, this ruling does not preclude an owner from pursuing other options that will ensure the pet is well taken care of after its owner’s death.

First, an owner can set up a trust to care for his or her beloved animal. In 1991, the California legislature enacted a probate code provision that allows individuals to create trusts for the care of a “designated domestic or pet animal.” However, the problem with the 1991 version of this code section was that a beneficiary could not take action against a trustee who failed to administer the trust according to its terms. The legislature addressed this problem by enacting a new version of the code section in 2009. Currently, any trustee or beneficiary of the trust, person interested in the animal’s welfare, or a nonprofit animal welfare organization, may petition the court regarding the affairs of the trust.

The use of a trust to care for an animal has several benefits. It is a flexible method for managing financial assets for the benefit of the pets until the last surviving pet departs. Another benefit is that a living trust can include provisions for pet care that would be operative during an owner’s life-time incapacitation. In addition, the trust provisions can include very specific instructions for the care of companion animals.

If you choose to create a trust, it should provide for the payment of all final medical and disposition expenses for your pet. In addition, you should nominate a trustworthy caretaker, and alternates, or leave instructions on how to find a suitable home and caretaker for your pet.

Another way in which an owner can provide for a pet after the owner’s death is by choosing to leave the pets (and the money to care for them) as an outright “gift” to a responsible and trustworthy individual. An owner can do this either through a will or a revocable trust. However, before choosing this option, an owner should make sure that the chosen care-taker is willing and able to care for the pets after the owner’s passing.

If you are interested in learning more about how to properly plan out your beloved animal’s care after your passing, please contact the San Jose estate planning lawyers at Lonich Patton Ehrlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship

What is “Sole Custody”?

March 17, 2011/0 Comments/in Family Law /by Mitchell Ehrlich

The term “sole custody” refers to one of California’s several types of child custody arrangements. A parent with “sole custody” may have sole physical custody, sole legal custody, or exclusive custody. Each type of custody arrangement has unique rights that attach to it.

If a parent has sole physical custody, he has exclusive physical custody of the child without having exclusive legal custody. This means that the parent with the sole physical custody has the right to have the child live with him/her, subject to the other parent’s visitation rights (if any). However, a custodial parent who only has sole physical custody is not entitled to make all the important decisions regarding the child.

On the other hand, a parent with sole legal custody is awarded exclusive rights and responsibilities regarding child care decisions relating to health, education, and welfare. However, unless sole physical custody is also granted, the parent does not have sole control over the child’s residence and supervision.

Exclusive custody is a combination of sole legal and sole physical custody. The parent with the exclusive custody has the right to make decisions regarding the child’s residence, health, education, and welfare. The non-custodial parent, however, may retain secondary visitation rights detailed by court order. In addition, an exclusive custody order does not terminate the other parent’s parental rights or due process interest in parenting. The parent without exclusive custody retains the right to seek and obtain custody modification based on a proper showing of changed circumstances.

Please contact our child custody attorneys at Lonich Patton Ehrlich Policastri for more information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Federal Tax Implications for Same-Sex Couples’ California Estate Plans

March 15, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

California same-sex couples deal with many of the same estate planning issues as opposite-sex couples. However, they also face several unique challenges relating to the federal tax system. Therefore, when developing an effective estate plan for a California same-sex couple, the federal tax system should be considered.

One of the most glaring distinctions between married opposite-sex partners and domestic partners under federal tax law is in relation to the federal marital tax deduction. Domestic partners and same-sex couples legally married in California are not eligible for the unlimited federal marital deduction for property passed outright to a surviving domestic partner or same-sex spouse. Under the federal Internal Revenue Code (IRC), this deduction is only permissible between “spouses.” The IRC defines a “spouse” as an opposite-sex married couple. A qualified California estate planning attorney can advise same-sex couples on transferring assets in a way that minimizes federal taxation.

It is not uncommon for same-sex couples’ estate plans to be challenged by family members. If there is concern that someone will contest the estate plan, it is best for each party to have their own attorney to avoid an invalidation of the estate plan on grounds of duress or conflict of interest. Because of many legal uncertainties in characterizing same-sex couples’ income and tax consequences, California domestic partners are best represented by attorneys who have a strong background in family law as well as estate planning law.

For more information about estate planning, please visit the Lonich Patton Ehrlich Policastri website. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

How Can Business Succession Planning Help You Pass Your Company On to Your Children?

March 11, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

A business succession plan can help you hand your business over to your family’s next generation by looking at whether or not your company has adequate resources and potential. If your business does not presently have the qualities required to pass on to your children, an attorney can help you investigate whether the necessary resources and potential can be developed.

An estate planning attorney can help you develop a quality business succession plan that meets your needs. Specifically, an estate planning lawyer can help you use instruments such as revocable trusts, irrevocable trusts, and charitable trusts to own and control the equity interests of your business. In addition, your attorney can help you minimize the impact of local, state, and federal taxes on business and estate planning transactions to conserve the assets of the company.

For more information on developing a successful plan to pass on your business after your death, please visit the Lonich Patton Ehrlich Policastri website. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Santa Clara County Custody & Visitation Process: Part II

March 9, 2011/0 Comments/in Family Law /by Julia Lemon

A previous blog posting provided a general outline of Santa Clara County’s approach to the child custody and visitation procedure that occurs when a couple is divorcing or seeking a legal separation. In the second half of this series, the discussion will focus on the phase of the custody process after the Judicial Custody Conference (JCC) is completed.

If the parents are able to reach an agreement during the JCC, they memorialize it in a written agreement and the custody/visitation portion of the case has been settled. However, if the parties do not reach an agreement, the judge may refer the parties to an assessment or evaluation with Family Court Services, or may set the case for trial.

If the parties are referred to an evaluation or assessment, Family Court Services or a private evaluator will interview the spouses, the spouses’ attorneys, and may choose to interview the children or other relevant individuals. The contents of the evaluation reports are kept confidential and are only sent to the Court, attorneys, and self-represented parties. Afterwards, the evaluator submits recommendations to the judge. Any party may file and serve objections to the orders within 15 days of the mailing of the recommended order. If an objection is filed, attorneys, parties, and the evaluator are then required to attend a Custody Settlement Conference (CSC). The purpose of the CSC is to try to settle any remaining custody and visitation disputes. If an agreement is reached at this phase, the case is settled. If an agreement is not reached upon the conclusion of the CSC, the judge will set the case for trial.

For more information about the child custody and visitation process, please contact our San Jose child custody attorneys at Lonich Patton Ehrlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.