June 2022 - Lonich Patton Ehrlich Policastri

Do I Need a Trust to Avoid Probate?

June 29, 2022/in Estate Planning /by Michael Lonich

Very few people want to see an estate end up in probate. It is an expensive and lengthy process that requires a judge to validate and authenticate your will and name an executor. Creditors must then be notified and paid off before distributing your assets to the beneficiaries.

There are a few ways to prevent probate litigation, such as joint ownership and gifting some of your possessions to your loved ones while you are still alive. Another way to avoid probate is by establishing trusts.

What are trusts, and how can you set one up?

Types of Trusts

A trust is a legal arrangement in which one person (a trustee) manages property of another person (the beneficiary). Revocable, irrevocable, and testamentary trusts may be terms you have heard.

Revocable and irrevocable are living trusts that go into effect and are funded while the grantor is still alive. A testamentary trust is created through a will and does not take effect until after the grantor’s death.

Trusts can effectively manage your property and ensure it is distributed according to your wishes. But, each of them has its benefits and drawbacks.

Revocable Trusts

A revocable trust can be changed or terminated at any time by the person who created it, called the grantor. In addition to being a way to avoid probate, a revocable can be used to manage assets during the grantor’s lifetime, which can be helpful if the grantor becomes incapacitated.
Revocable trusts also have some drawbacks. Because the grantor retains control over the assets in the trust, they are still considered part of the grantor’s estate for tax purposes. Additionally, revocable trusts do not offer the same level of asset protection as irrevocable trusts.

Irrevocable Trusts

An irrevocable trust cannot be changed or terminated once created without the beneficiaries’ approval. This may seem like a drawback, but it provides some distinct advantages:
An irrevocable trust can help to protect assets from creditors. Once an asset is transferred into the trust, it becomes the property of the trust and is no longer subject to the claims of the grantor’s creditors.
It can help to minimize estate taxes. Assets in an irrevocable trust are not included in the grantor’s estate for tax purposes, so they are not subject to estate taxes when the grantor dies. An irrevocable trust can help ensure that assets are distributed according to the grantor’s wishes.
One common issue with irrevocable trusts is that they may not be able to be adapted to changes in the needs of the beneficiaries. For example, if a beneficiary develops a medical condition that requires expensive treatment, an irrevocable trust may not be able to be modified to provide for that need.

How to Navigate Estate Planning Concerns Such as Trusts and Probate

Due to the nuances of setting up a trust, you may want to consider working with an attorney. Our lawyers at Lonich Patton Ehrlich Policastri are experienced at crafting a variety of trusts. Call us at 408-553-0801 to schedule your free consultation.

What Happens in a Restraining Order Hearing?

June 24, 2022/in Family Law /by Gretchen Boger

If you find yourself in a situation where you need to file a restraining order, you are likely nervous, scared, and unsure of what may happen. Understanding the process and knowing what to expect during the hearing may ease some of your anxiety.

Why You Might Need a Restraining Order

In California, a restraining order or protective order is a legal order issued by the court that requires one person to stop harming another, whether it is physical, sexual, stalking, threatening, or harassment. The person getting the restraining order is called the “protected person,” and the person on the receiving end of the restraining order is called the “restrained person.”

Restraining orders can include the following:

Personal conduct orders prohibit the restrained person from committing specific actions
Stay-away orders that don’t permit the restrained person from being in the same location as the protected person
Residence exclusion states that the restrained person must vacate the premises where the protected person resides.

There are four different types of restraining orders, including:

Domestic Violence : to protect someone who is being physically by a person they live with
Civil Harassment: for protection from someone who is not a close family member or domestic partner, such as a neighbor, distant relative, or roommate.
Elder or Dependent Adult Abuse: for adults who are unable to care for themselves due to physical or mental disabilities or older (65+) adults. The protective order is put in place for someone who has been physically abused, financially exploited, neglected, or deprived of services such as healthcare visits or medications.
Workplace Violence: can be requested by an employer to protect an employee from being harassed at the workplace.

What to Expect During the Process

In California, an individual must first file a petition with the court. At the hearing, the petitioner (the person who filed the order) will have an opportunity to present evidence and testimony to support their claims. The respondent (the person the order is filed against) will also have a chance to give evidence and testimony.

The judge will review the evidence and decide whether or not to issue a restraining order. They may impose other conditions, such as requiring the respondent to attend counseling or surrender their firearms.

Power of Attorney Duties after the Principal’s Death

June 14, 2022/in Estate Planning /by Michael Lonich

Power of attorney (POA) is a legal document that authorizes someone to act on behalf of another person. The person who designates power of attorney is the principal. The person acting on behalf of the principal is known as the agent.

This can be helpful if you need to delegate authority temporarily to manage finances, make medical decisions, or handle other legal matters when you are unable to act on your own behalf, such as during medical emergencies or extended travel abroad.

However, after the principal dies, a question often arises: who will handle their estate and manage affairs? The answer is a person with power of attorney doesn’t necessarily continue to manage the principal’s affairs after death.

Types of POA

If you are in a situation where you are considering granting power of attorney, you may be wondering what arrangement is most suitable. There are several common types of Power of Attorney designation:

General POA
General POA grants a designated agent the power to make decisions on behalf of the principal for a broad spectrum of matters, including banking transactions, sale or purchase of property, or contractual agreements. This should be used only in specific situations, as it grants extensive control to an agent to act on the principal’s behalf.

Durable POA
Durable Power of Attorney grants power to an agent if the principal becomes mentally incapacitated. This differs from other POAs, as typically, they are structured to end if you are mentally incapacitated. It’s important to note this doesn’t replace a conservator arrangement, as DPOA must be granted while the principal still has full mental faculties and cannot be granted retroactively.

Limited or Special POA
A limited POA allows a principal to grant power of attorney to an agent for use only in specific circumstances, such as cashing checks. Typically this type of POA is only granted for a set period or a particular task.

Medical Power of Attorney
Medical POA allows a principal to designate a specific health care agent to make medical decisions if they are incapacitated. This can include making decisions on medical treatments, surgery, life support, organ donation, and medical records release. An agent with medical POA also ensures a Living Will directive or Do Not Resuscitate order is carried out according to the principal’s wishes.

What happens after the principal’s death?

The validity of an assigned power of attorney expires in the event of the principal’s death. This means a person with POA of any kind can no longer act on behalf of the principal. A power of attorney order also cannot substitute or replace a will.

Once the principal has died, only a designated estate executor can manage the principal’s estate. A person with POA might also be the executor of a will, but it isn’t automatically assigned. Once the principal dies, their last will and testament will guide how their affairs should be handled. If they do not have a will, it falls to the courts to distribute any assets.

LPEP Law is Here to Guide You

If you have questions regarding power of attorney arrangements, reach out to the experienced team at Lonich Patton Ehrlich Policastri to discuss. Our team of seasoned family law and estate planning attorneys have years of experience in San Jose and the Bay Area and are ready to guide you to find the right solution.

Call 408-553-0801 or fill out our contact form to schedule a complimentary 30-minute consultation today.

What is the Most Common Child Custody Arrangement?

June 7, 2022/in Family Law /by Gretchen Boger

When parents divorce, one of the most challenging issues is who will have custody of the children. Both parents want to be involved in the responsibility of raising their children. Joint custody is the most common child custody arrangement where both parents share responsibility for their child. This can mean that the child lives with both parents equally or that one parent has primary physical custody of the child, with the other parent having visitation rights.

Joint custody arrangements include joint legal custody, where both parents have a say in decisions about the child’s welfare, and joint physical custody, where both parents have equal time with the child. In most cases, parents have joint legal and physical custody.

Benefits of Joint Custody

There are many benefits, both for parents and children. For parents, joint custody can help to reduce conflict and increase cooperation. It can also provide a greater sense of stability for children.

And while joint custody arrangements can be challenging at times, they often provide a more positive parenting experience than either sole custody or visitation arrangements. Therefore, a judge will rule that both parents have joint legal and physical custody in most cases. This allows the children to have equal access to both parents, and both parents share the decision-making.

Drawbacks of Joint Child Custody Arrangements

While joint custody can have many benefits for children, it can also present some challenges. One of the most common problems is that it can be difficult for children to adjust to living in two separate households. They may feel torn between their parents and have difficulty developing a strong sense of identity.

Additionally, this type of arrangement can be logistically complicated, especially if the parents live in different parts of the city or country. Coordinating drop-offs, pick-ups, and extracurricular activities can be a challenge, and it can be tough on both parents and children if there is a lot of back-and-forth.

These are some reasons why a judge may rule for one parent to have sole physical custody and joint legal custody for both. For example, if one parent lives in another area and shared physical custody would disrupt the child’s schooling, the judge may rule that the child live with one parent but grant the other parent extended visitation rights.

Where You Can Go for Help

While joint custody arrangements can be challenging at times, they often provide a more positive parenting experience than either sole custody or visitation arrangements. If you are considering a joint custody arrangement for your family or have questions about how it will work in your specific situation, please contact our attorneys at Lonich Patton Ehrlich Policastri for more information.

We have years of experience helping parents resolve child custody issues and can help you create a parenting plan that meets your children’s needs and gives you both the flexibility and stability you need. If you live in San Jose or the greater Bay Area, call us at 408-553-0801 to schedule your free consultation.

June 2022 LPEP Spotlight: Ashley Perez

June 1, 2022/in 2022, Spotlight /by Lonich Patton Ehrlich Policastri