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Estate Planning: The Difference Between Revocable vs Irrevocable Living Trusts

January 26, 2023/in Estate Planning /by Michael Lonich

You have worked hard to get where you are in life. Maybe you started a business, own a home and property, or have made wise investments. As you think about the future, it’s important to decide how you want those assets distributed and to make a plan to ensure those decisions are implemented. Sometimes people choose to establish a living trust, which is a written, legal document that helps protect your assets while you are still alive and provide for your family after your death. Essentially, you put your assets into a trust and assign a trustee (which can be yourself) to manage the trust property and administer your estate for your benefit during your lifetime and to manage the distribution of those assets after your death. 

Although there are several benefits to having a living trust, arguably the most important is that you will protect your estate from the probate process, which can take over a year and incur significant legal fees. A living trust, on the other hand, can usually be settled within weeks. Other advantages include avoiding the probate process in other states if you own out of state property and providing the opportunity for a trusted family member or friend to manage the trust if you become incapacitated. In addition, some individuals choose living trusts because they are more difficult to contest than a standard will.  

What assets should be in a living trust?

Generally speaking, you will want to include several different types of assets in your living trust, including: 

  • Bank accounts – checking, saving, and money market
  • Real estate – homes and property
  • Investments – stocks, bonds, and mutual funds
  • Personal property – family heirlooms, jewelry, furniture, etc.
  • Life insurance policy

Revocable vs. Irrevocable Living Trust

There are two types of living trusts – revocable and irrevocable. Each has its own advantages and drawbacks. The main differences between revocable and irrevocable living trust are: 

  1. Flexibility: Revocable living trusts are most commonly used in estate planning since they allow you to amend, add to, or even completely revoke your living trust as the need arises, if your circumstances or finances change. As the name suggests, an irrevocable living trust is less flexible than a revocable living trust, requiring court or beneficiary approval for any changes once it has been notarized and executed.
  2. Ownership: In a revocable living trust, the person who created the trust continues to have ownership or control over the assets in the eyes of the law. Trust property in an irrevocable trust, on the other hand, belongs to the trust itself, rather than the individual.
  3. Asset Protection: Because assets in an irrevocable trust are controlled by the trust rather than the individual who set up the trust, they are better protected against creditor claims than assets in a revocable trust, which are still owned by the individual. If you don’t need to worry about creditors, however, revocable trusts are usually a better choice since you maintain control and can make changes easily.
  4. Tax Savings: Once assets are transferred into an irrevocable living trust, they are no longer considered a part of an individual’s taxable estate. Therefore, your beneficiaries may pay less estate tax after your death. This benefit is especially important for people with more extensive estates or assets. 

We Can Help You Protect Your Family’s Future

Estate planning is one of the most important things you can do to protect your loved ones and ensure your long term wishes are carried out. If you’re wondering whether a revocable or irrevocable living trust is right for you, or have other questions about estate planning, our attorneys at Lonich Patton Ehrlich Policastri can help. Please call us today at (408) 553-0801 to set up a free, no-obligation consultation and discuss how our estate planning attorneys can customize our services to your unique situation and needs.

https://www.lpeplaw.com/wp-content/uploads/2023/01/RevocableLivingTrust.jpg 516 1278 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2023-01-26 21:52:452023-01-26 21:54:24Estate Planning: The Difference Between Revocable vs Irrevocable Living Trusts

How To Contest Paternity In California

January 19, 2023/in Family Law /by David Patton

When a man is listed on a child’s birth certificate as the father but later learns that he is not the biological father, he may want to contest paternity. In California, specific steps must be taken to do this. If you are considering contesting paternity, it is essential to understand the process and what will be required of you.

In this blog post, we will discuss the process for contesting paternity in California and provide tips on ensuring your case has the best chance of success.

Why Someone May Want to Contest Paternity

Paternity is a legal term used to refer to the state of being a father for a particular child. In California, it can be established through various means. First and foremost, if the mother of the child is married at the time she gave birth, then her husband is presumed to be the father. 

If the mother is unmarried, then legal paternity can be established by signing a voluntary declaration of paternity.

Paternity may be contested in California for several reasons, such as when a man is surprised to learn that he is legally the father of a child or if there are questions about the validity of a previous paternity test. In addition, if either party is not satisfied with the results of a DNA test performed during a paternity suit and believes it was done incorrectly or was tampered with, they may file an objection and contest paternity. 

Another ground on which a man can contest his paternity is if he is married to the mother and can prove he is sterile or impotent.

Additionally, suppose a man has signed an affidavit acknowledging paternity or a voluntary declaration of paternity and filed it with the Department of Child Support Services or a court. In that case, he may contest this declaration within 60 days of signing it. Alternatively, he may challenge it at any time if there was fraud, duress, or mistakes related to his execution of the acknowledgment or declaration. 

How Long Do You Have to Contest Paternity?

If a man has been served with a Summons and Complaint Regarding Parental Obligation from the local child support agency, he has 30 days to respond. 

The first step is to fill out the Answer to Complaint or Supplemental Complaint Regarding Parental Obligations form. The man can ask for genetic testing to determine paternity on the form.

In other cases, one parent may file a Petition to Establish Parental Relationship Services, and the other person has 30 days to respond to the petition. If the man is disputing his paternity, then it becomes a contested case.

Contesting Paternity Is a Complicated Process

If you have reason to believe you are not a child’s father, it is vital to take action and contest paternity. The first step is to contact us for a free consultation by calling 408-553-0801. Our experienced family law attorneys at Lonich Patton Ehrlich Policastri can help guide you through the process and work with you to build a case.

https://www.lpeplaw.com/wp-content/uploads/2023/01/ContestingPaternity.jpg 640 1158 David Patton https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png David Patton2023-01-19 23:03:062023-03-20 22:00:01How To Contest Paternity In California

What to Know Before Signing a Postnuptial Agreement

January 12, 2023/in Family Law /by Virginia Lively

Most people have heard of a prenuptial agreement, which is a legal agreement signed by a couple before marriage that establishes rules for the division of the couple’s assets and debts in cases of divorce. Postnuptial agreements provide the same financial protection but are negotiated and signed after a couple is already married. Although it can be uncomfortable to talk about money or to consider the potential dissolution of your marriage, if you think about marriage as a long-term partnership, it makes sense to discuss appropriate and fair protection of each party’s assets for the future in the same way that you would for other relationships such as business partnerships.

When to Initiate a Postnuptial Agreement

Certain life changes or situations might come up where it’s in your best interest to think about a postnuptial agreement to alleviate uncertainty about your financial future. In fact, if you have a prenuptial agreement in place but some circumstances have changed, you might use a postnuptial agreement to modify your prenuptial agreement.

  • Significant Changes in Financial Circumstances
    If either spouse’s finances significantly increase or decrease, it’s a good time to initiate a postnuptial agreement. For instance, one spouse might inherit family money or property and want to make sure his children from a previous relationship receive those assets. Or a spouse who decides to start a business might want a postnuptial agreement in place to protect the rights and interests of business partners or profit sharers. Postnuptial agreements can also shield you from being held responsible if your spouse begins to accrue appreciable amounts of debt through unwise investments or lavish spending.
  • Marital Issues
    Combining finances can be one of the most difficult parts of any marriage. Some couples enter marriage without being aware of the debts or financial difficulties of their spouse. Infidelity or other marital issues can also cause stress in a marriage. A postnuptial agreement can provide some security to both parties, allowing them time to work on their marital issues without the added worry about finances. If divorce becomes inevitable, having a postnuptial agreement already in place ensures both parties’ assets are protected and can make the divorce process smoother.

What to Include

When preparing to enter into a postnuptial agreement, both parties must disclose all current assets and debts. Although postnuptial agreements are as individual and unique as each couple, they most often include instructions for how to distribute:

  • Debts, including mortgages, insurance, educational loans, and credit cards
  • Shared property such as cars, homes, or even family pets
  • Other assets such as retirement accounts, investments, or inheritance
  • Spousal support 

Get Help Drafting an Effective Postnuptial Agreement

In California, postnuptial agreements have to meet several requirements to be considered legally enforceable, including that they must be: 

  • Written, not oral
  • Fair to both parties
  • Signed by both parties willingly, not under duress
  • Notarized
  • Clear and transparent

Unfortunately, a California court might declare a poorly written agreement with vague or ambiguous language invalid, thus putting both spouses’ desires in jeopardy. To ensure that your postnuptial agreement is legally binding and will withstand a family court judge’s review, you should work with an experienced attorney. 

At Lonich Patton Ehrlich Policastri, our attorneys specialize in drafting effective postnuptial agreements that help protect your interests, using direct and detailed language. If you have questions about postnuptial agreements or want to discuss your specific situation, give us a call today at (408) 553-0801 to set up a free consultation. We have decades of experience navigating the complex landscape of family law and welcome the opportunity to discuss your options to successfully protect your financial future.

https://www.lpeplaw.com/wp-content/uploads/2023/01/SigningPostnup.jpg 801 1920 Virginia Lively https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Virginia Lively2023-01-12 21:31:092023-03-20 21:59:10What to Know Before Signing a Postnuptial Agreement

January 2023 LPEP Spotlight: Michael Lonich

January 3, 2023/in 2023, Spotlight /by Lonich Patton Ehrlich Policastri
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Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, and San Benito. For a full listing of areas where we practice, please click here.

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