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LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
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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What You Need to Know About California’s Durable Power of Attorney Law
/in Estate Planning /by Michael LonichA durable power of attorney is a legal document that allows an individual to appoint someone else to make decisions on their behalf if they can no longer do so themselves.
However, California has specific criteria for a durable power of attorney to be legally binding. You will want to make sure you understand those requirements so that you or your loved ones won’t find yourselves facing a legal battle.
What is a Power of Attorney?
When creating an estate plan, you will want to appoint someone as your power of attorney. That person will be able to make decisions on your behalf if you are incapacitated and unable to do so yourself.
There are several types of powers you can appoint to someone, such as:
Does California Have Any Legal Requirements For Durable Power of Attorney?
California requires certain criteria for a durable power of attorney to hold up in a court of law.
First, both the principal person and the appointee must be legal adults. The person appointed as DPOA can not be affected by the principal’s incapacitation, and the POA does not go into effect until the principal becomes incapacitated.
To be legally binding, a DPOA must be signed by two witnesses (the principal can not be one of the witnesses) or be dated and acknowledged by a notary public.
What Are Some Things to Consider When Choosing an Agent to Act as a DPOA?
There are a few things to consider when choosing an agent under California’s durable power of attorney law. First, you’ll want to choose someone you trust implicitly to make decisions on your behalf. This person will have a great deal of power over your finances, so it’s essential that you select someone responsible and level-headed.
Finally, be sure to discuss your wishes with your agent in advance so they are clear on what you expect from them.
Planning for the Future
When it comes to planning for the future, you want to make sure you are getting the best legal advice. Our lawyers at Lonich Patton Ehrlich Policastri have years of experience and will guide you in making tough decisions about your future. We can discuss how much authority you want to give your durable power of attorney and ensure they carry out your wishes.
If you live in San Jose or the greater Bay Area, schedule your free consultation or call us at 408-553-0801.
Are There Any Disadvantages of a Prenuptial Agreement?
/in Family Law /by David PattonNo one gets married thinking that it will end in divorce, but the unfortunate reality is that it does happen. When it does, couples who have a prenuptial agreement in place are far better off than those who do not. A prenuptial agreement may protect both parties in the event of a divorce and ensure that each person walks away with what they are entitled to.
What is a Prenuptial Agreement, and Why Might You Need One?
As the name implies, a prenuptial agreement is a contract signed by two people planning to marry. While some agreements may discuss rights and responsibilities during the marriage, they usually outline the division of assets if the marriage ends.
Having a prenup is advantageous for several reasons, such as:
Myths About Prenuptial Agreements
There are several common misconceptions about prenuptial agreements. Discussing divorce before entering a marriage can create feelings of mistrust and insecurity within a relationship. If one spouse feels like they are signing away their rights, it can lead to resentment and conflict. Furthermore, one person may feel like their future spouse is more interested in protecting assets than building a relationship. While the process requires couples to have potentially difficult conversations about their finances and expectations for the future, creating a prenuptial agreement can establish a solid foundation for a marriage.
Why Might a Prenuptial Agreement Not be Enforceable?
There are many different reasons why a prenuptial agreement may not be enforceable in California. While a couple can draft their own contract, California’s Uniform Premarital Agreement Act (UPAA) outlines what they need to include in an agreement. Failure to meet those requirements could invalidate the contract.
Furthermore, there are some items that can’t be in the agreement, including:
We Can Help Create Your Prenup
Creating a prenuptial agreement is a legally complex process. Our attorneys at Lonich Patton Ehrlich Policastri have experience crafting agreements that meet California’s legal requirements and will provide peace of mind for you and your future spouse.
If you live in San Jose or the greater Bay Area, call us at 408-553-0801 or fill out our contact form to request a free consultation.
What Are The Components To Include In An Estate Plan?
/in Estate Planning /by Michael LonichWhen most think of an estate plan, they typically consider it something that is only for the wealthy, but that couldn’t be further from the truth. An estate plan is an important part of any individual or family’s financial security. It determines how your assets will be distributed after your death and can also dictate who will handle your affairs if you are incapcitated. Understanding the components to include in an estate plan is vital to making sure your wishes are carried out properly.
Important Components to Include in an Estate Plan:
One essential part of an estate plan is the will, a legal document that details the distribution of your assets after your death. This includes things like property, money, and possessions. You will also want to have a trust that will allow someone else to manage your assets on your behalf. A trust can be helpful if you cannot handle your own affairs or if you want to provide for someone after your death.
A power of attorney is a legal document that gives someone else the authority to make decisions on your behalf. You can give someone power of attorney for financial matters, healthcare decisions, or both. Powers of attorney can be revocable, meaning you can cancel them at any time, or irrevocable, meaning they cannot be canceled. If you become incapacitated without a power of attorney in place, your family will have to go to court to get the authority to make decisions on your behalf. You should appoint someone you trust to act on your behalf, and you should review your power of attorney regularly to make sure it still meets your needs.
A healthcare directive allows you to specify your wishes for medical treatment if you cannot make decisions for yourself. You can use a healthcare directive to appoint a healthcare agent to be responsible for making decisions on your behalf and specify your preferences for medical treatment, including end-of-life care. If you do not have a healthcare directive in place, your family won’t know what you want and will have the make difficult decisions.
Beneficiary designations determine who will receive your assets after you die. You can name individuals, charities, or even trusts as beneficiaries. It’s important to carefully consider your beneficiary choices, as they can significantly impact your estate taxes.
A Letter of Intent spells out your wishes for your estate in the event of your death or incapacity. It can include instructions for dividing your assets, funeral arrangements, and any medical directives you may have. While it is not legally binding, a Letter of Intent provides valuable guidance to your loved ones during a difficult time.
Why You Need an Estate Planning Attorney
Creating an estate plan requires a lot of legal paperwork, and when it comes to your assets, you don’t want to leave anything to chance. Our attorneys at Lonich Patton Ehrlich Policastri will work with you to create a solid estate plan that will give you peace of mind.
If you live in San Jose or the greater Bay Area, contact us for a free consultation by calling (408) 533-0801.
Is An Annulment Better Than A Divorce?
/in Family Law /by Riley PenningtonNo one enters into a marriage intending for it to end in separation. However, sometimes marriages don’t work out, and couples find themselves considering a divorce. While divorces are more common, they can be a difficult and expensive process. Annulments are another option that some couples may want to consider, though they are not without their own set of challenges.
So, is an annulment better than a divorce? The answer depends on your individual circumstances. Knowing the details of both options and the regulations within California for who qualifies for an annulment or a divorce can help you make the best decision for yourself and your situation.
What is the difference between an annulment and a divorce?
The core difference between an annulment and a divorce is that an annulment voids a marriage, so it’s as if it never happened. Meanwhile, a divorce recognizes the existence of a marriage and is a legal dissolution of said marriage.
The primary consideration in deciding whether an annulment or a divorce is most suitable for your situation is to evaluate the reason, or grounds, for the separation.
Several common reasons are often cited when couples seek a divorce, including imprisonment, abandonment, adultery, or irreconcilable differences. Couples can also seek a no-fault divorce, in which both parties agree that neither party is responsible for actions that lead to the divorce.
Meanwhile, annulments typically occur when either one or both persons have reason to believe that the wedding should not have happened at all. In the state of California, there are several possible “grounds” for an annulment, including situations where a person has been coerced to marry, either partner is engaging in bigamy, either person is unable to make a sound decision due to mental disability or substance abuse, or either person is underage, in an incestuous situation, or related by blood.
A common misconception is that marriages that have only lasted a brief amount of time can qualify for an annulment, but that isn’t always the case. For an annulment to be granted, it must be proven in court that extenuating circumstances such as one of the conditions outlined above occurred. Given these more stringent annulment requirements, they are typically a less common option for couples looking to separate.
Annulments in California
One key difference when seeking an annulment instead of a divorce is that there are not the same guidelines requiring division of property as there would be in traditional divorce proceedings. When an annulment occurs, both parties are typically reverted to their pre-marriage financial state. They wouldn’t split assets like property or monetary holdings in the same way that might happen with a traditional divorce.
However, California does consider the existence of the putative spouse, or a person who, in good faith, was under the belief that the marriage was legal. In these situations, a judge may intervene to divide property and other assets and make a ruling on eligibility for spousal support, which is not typically awarded during an annulment.
Additionally, children born during a marriage that is later annulled are still considered “legitimate” children. Therefore, they remain entitled to parental support from both parents, though a judge may need to step in to clearly define parental rights.
However, California has legal statutes called “presumptions of paternity,” where it is accepted that while a marriage may have been invalid, the husband is the children’s father. This makes it less of a challenge to establish paternity.
Do I need a lawyer for an annulment?
It’s always a good idea to have experienced representation for any legal matter. A seasoned attorney can guide you through the separation process and help determine whether a divorce or an annulment is the right solution for your situation.
If you are looking for help navigating the legal process for a divorce or annulment in California, contact the expert team at Lonich Patton Ehrlich Policastri at 408-553-0801 to schedule a free consultation today.
Should I Get a Prenuptial Agreement?
/in Family Law /by Gina PolicastriMarriage is a thrilling time for any couple, as two people plan to embark on an exciting new chapter together. Getting married is a big step in a relationship, but it is also a life-changing and legally binding event that should be entered into thoughtfully and with all the facts available to you.
One important question to ask before getting married is whether you should create a prenuptial agreement. No couple wants to think about divorce prior to getting married, but prenuptial agreements can be beneficial in case of a split as a tool to help protect each person’s interests.
What is a prenuptial agreement?
A prenuptial agreement, or a “prenup,” is a legal document that outlines how assets and liabilities will be divided in a divorce. Many view prenups as negative, but they can be quite beneficial if executed correctly.
While some feel that a prenuptial agreement can take the romance out of the situation, indeed, it can be the opposite. It’s an opportunity for you and your spouse-to-be to outline your wishes on the financial aspects of a marriage without being in the midst of a possibly emotional divorce situation.
This can alleviate some of the financial strife of divorce by ensuring both parties are clear on how assets will be divided and cut down on legal fees from mediation if a couple cannot reach an agreement during divorce proceedings.
Why do I need a prenuptial agreement?
Typically prenuptial contracts have been thought of as something only the uber-wealthy need, but that’s not the case. Many modern couples can also benefit from having a prenuptial agreement.
Prenups help prevent disputes over property and assets during a divorce. This is especially important if either spouse comes into the marriage with significant assets, such as wealth, property, or a business.
Prenuptial agreements can also be used to outline child custody and support arrangements, protect spouses from debts that were held before the marriage, or protect inheritances for children from previous marriages.
What if I don’t have a prenup?
If there is no prior agreement in place in the case of a divorce, the state’s laws will determine how property is divided, utilizing the state’s standard property rights for married couples.
Typically this means that any assets accumulated during the marriage are to be divided equally, though the exact guidelines can vary from state to state.
Creating a prenup
It is important that you seek professional legal help when drafting a prenuptial agreement to ensure that an agreement will be considered valid if it should be reviewed in court.
A court will examine whether the agreement is unfair or made under coercion and can invalidate the agreement if it appears that either party entered the agreement under duress or undue pressure. Each party should have their own legal representation to ensure that their interests are represented fairly and communicated clearly. An experienced lawyer can also help guide you through the process to ensure that you have the proper documentation in place.
Get An Expert Team on Your Side
When it comes to family law and estate planning, experience matters. For decades, Lonich Patton Ehrlich Policastri has been helping individuals and families with complex family law and estate planning matters. We’re proud to serve the Bay Area and provide our clients with the highest level of legal care possible.
Click here or call 408-553-0801 to schedule a free consultation today.