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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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Prenup Agreement in High Net Worth Marriage
/in Family Law /by Gina PolicastriAs common as they are, the potential of a divorce is something that engaged couples often don’t wish to discuss. Although, it may sound pessimistic to discuss prenup agreements, high net worth individuals may want to consider a prenuptial agreement so that a potential division of property later down the road is less stressful.
Who Should Consider a Prenup Agreement?
High net worth owners are highly advised to create a prenup agreement as they have more at stake in the event of a divorce. Additionally, business owners are encouraged to consider prenup agreements as well, as the division of a business is often a complex and contentious issue down the road.
Oftentimes couples sign prenup agreements not because they foresee a divorce happening, but because they want to quell family concerns regarding the distribution of assets down the road. Prenup agreements can also protect assets in the event of untimely death and may redirect funds to dependents or other family members.
What Are the Benefits of a Prenup Agreement?
As unromantic as it sounds, couples who at least discuss the option of a prenup often report that they feel eased by being proactive with considering their future. Sometimes the burden of a potential stressful divorce down the road can cause people to become anxious about marriage and can cause unwanted stress. Signing a prenup doesn’t mean that you want or anticipate a divorce, it simply means that you are aware that they are common and want to be proactive with making the distribution of assets less stressful for you, your partner, and your loved ones.
What Is the Process Like of Creating a Prenup Agreement?
As opposed to many divorces, creating a prenup is typically an unemotional process, similar to a business transaction. While it is significantly less stressful than most divorce proceedings, it is just as meticulous of a process. It is highly advised that both you and your partner hire an estate planning attorney so that you can ensure the agreement is fair and will distribute assets as intended. Additionally, it is highly recommended that partners be transparent about their assets and potential inheritances, as this will ensure that property is not overlooked.
How Do I Talk to My Partner About Creating a Prenup?
Although prenups are becoming more common, with an increase in the number of millennials signing prenup agreements, it is not an easy conversation to have. It is important to approach the subject with thoughtful consideration of the timing, place, and wording.
With any legal agreement, it is important, to be honest. Mentioning that it has always been something that was important to you and your family before you met your partner, or that you are following the advice of friends who have experienced a terrible divorce may help your partner have empathy for your request. It is also helpful to address the fact that a prenup agreement is significantly less timely, costly, and stressful than a complex divorce proceeding.
Approaching the agreement as equals is recommended. When both partners are involved with the creation of the prenup, there tends to be less concern and animosity with the legal agreement. Additionally, it is important to remind your partner that a thoughtful prenup benefits both partners as it reduces financial uncertainty for both parties. While it may temporarily create tension, many couples find that once they come to an agreement, they are able to move forward in their relationship.
If you would like to understand if a prenup is in your best interests, contact LPEP, an estate planning and family law firm in the Bay Area. Our team of dedicated professionals are committed to protecting your assets and have the resources you need to assist you with creating your prenup agreement.
How Is Paternity Determined In California?
/in Family Law /by Virginia LivelyThe issue of paternity is complex and the laws surrounding it vary state by state. If you are a father or couple who are seeking to determine your parentage in California, you may be wondering what your next step should be. What is a paternity test? How do you get tested? In California, there are three ways you can go about establishing paternity.
Go To Court
When parents think of determining parentage, this is typically the method they think of. This also tends to be the hardest method to determine paternity. If a child’s mother is trying to prove the parentage of a child, and the other parent is denying their paternity, a mother can go to court to establish it. Alternatively, if an alleged father wants to prove their paternity to have rights to custody of a child, they can also go to court to establish parentage.
When going to court, the judge will order a genetic paternity test.. If the alleged father refuses, the noncooperation can be considered evidence of parentage.
To go to court, you must fill out and file several legal documents. These are complex and require a trained eye. Please consider hiring an experienced paternity attorney. LPEP Law serves the greater Bay Area. Set up a free consultation with them here.
Get The Child Support Agency To Determine Paternity
The local child support agency has a right to ask the court for an order on paternity, just as the child’s mother or alleged father does. Having the child support agency provide this service for you is free and can take some of the stress off yourself. In addition to establishing parentage, they will also file for a child support order.
You can obtain these services by calling the local child support agency and setting up an appointment to open a case for paternity and support. If a father denies being the parent of a child, a mother can even open a case while still pregnant for a genetic test to be administered after the child is born.
If a parent is on welfare for the child, the child support agency will automatically open a case for paternity.
Sign A Voluntary Declaration
A declaration of parentage is a legal document that parents sign to claim themselves as the legal parents of a child. It is always voluntary. This document is usually signed by both parents in the hospital after a child is born. However, in cases where this didn’t happen, the declaration can still be signed as long as certain rules are followed.
For a declaration to be signed outside of the hospital, there are only certain public locations that the form can be signed at. The form must be signed in the presence of the local child support agency, the welfare offices, the Registrar of Birth, the local superior court, or the local family law facilitator. You can find your California family law facilitator here. The form must then be filed with Child Support Services to go into effect, and then it holds the same weight as a court order establishing parentage.
After the declaration of parentage is filed, orders for custody and visitation can be filed by a judge. The Court can also make orders for child support. A voluntary declaration of parentage grants both parents who signed it an equal right to custody, but also means they both have a responsibility to support and provide for the child. To learn more about voluntary declarations of parentage in the state of California, visit here.
When You Don’t Need A Paternity Case
There are certain instances in which you don’t need a paternity case in California. These include:
If you live in the State of California and are curious about starting a paternity case, get in touch with our San Jose, California attorneys today. Get questions like “what is a paternity test?” answered. We can help you with the complex paperwork that comes with going to court and can help ensure the process goes smoothly. We offer free 30-minute consultations with our experienced team of attorneys. You can set up your free consultation here. To learn more about paternity, visit us here.
Do You Need A Trust Litigation Attorney?
/in Estate Planning /by Michael LonichNobody wishes to quarrel over financial assets, but unfortunately, large inheritances and complicated trusts are often subject to controversy. When there are conflicting opinions regarding the validity of a trust, the trust may be scrutinized in the trust litigation process. Trust litigation is the process in which a person hires a trust litigation attorney to dispute the validity of a trust or the distribution process of the trust’s assets. During trust litigation, a judge determines if the trust was created according to the due process of law, if it is valid, and if the wishes laid out in the trust are being properly executed.
When Should You Hire a Trust Litigation Attorney?
While most people wish to avoid this lengthy litigation process, it is often necessary to ensure that the true wishes of the owner of the trust are being properly executed. If you are the beneficiary of assets that are subject to trust litigation or believe that the trust does not reflect the true intentions of the owner, then you should not hesitate to hire a trust litigation attorney in order to protect your property.
There are several situations in which a trust may be considered invalid. For example, sometimes a person who creates or revises trust documents may be experiencing memory loss or dementia, which would mean that the trust is invalid because the owner was not of sound mind when creating the trust.
Additionally, the trust owner could have been coerced, manipulated, or even forced to sign documents that do not reflect their intentions. Occasionally, there are even situations in which one person forges signatures in order to alter the trust to become a beneficiary. While the latter situations can seem extreme, these situations are particularly common among trusts with high assets, as people with more at stake are often the targets of others’ influence.
Even if the creation of the trust was lawful and valid, the execution of the trust can be subject to validity. If the executor mismanages funds, makes substantial errors in accounting, commingles assets unlawfully, or commits another action that affects the lawful distribution of property, then it is highly recommended to hire a trust litigation lawyer.
Lastly, if you are the beneficiary of assets that are being subject to trust litigation, then it is imperative to invest in a trust litigation lawyer in order to protect your assets during the litigation process.
Trusts & Litigation in Santa Clara
If you are interested in learning about how a trust litigation attorney can fight to protect your assets, please contact our offices today in Santa Clara to schedule a free, no-obligation consultation. LPEP is one of the largest estate planning law firms in the Bay Area and has a dynamic team of attorneys who specialize in trust litigation. We aim to solve most problems outside of court but are renowned for protecting assets during the litigation process.
We can answer any of your questions about trust litigation in your free consultation or, if you have lingering questions, you can look here to see if it answers your questions.
Same Sex Divorce in California
/in Family Law /by David PattonFor same-sex couples, the right to marry comes with the right to divorce. Though no one enters a marriage intending to divorce, it is a necessary process for married couples who understand that marriage is no longer the best fit for them.
While many aspects of divorce proceedings in California are the same for same-sex couples and heterosexual couples, there are certain aspects of the law that are particularly nuanced with respect to same-sex couples. Some of the differences can be advantageous for same-sex divorce, while others reflect the biases against same sex couples that are still ingrained in divorce law.
Child Custody Arrangements
The most contentious issue of divorce cases involving children tends to involve child custody arrangements. In the state of California, both parents are able to legally obtain parental rights of their children. In divorce proceedings involving same-sex couples who both have parental rights, both spouses are typically considered with custody arrangements. However, in marriages in which only one parent has parental rights, a judge may consider the biological parent as having more rights in the custody arrangement. Similar to heterosexual divorce litigation, factors involving parental roles and relationships with the child are considered as well.
Alimony Payments
When it comes to alimony, judges have the authority to treat same-sex couples differently than heterosexual couples. This differentiation isn’t due to biases within the law, but rather is due to the fact that many same-sex couples were been living together for years prior to being able to become legally married. In the case of one spouse being financially dependent on the other for a significant period prior to the marriage, the judge may factor that time into the alimony arrangements.
Dividing Retirement Accounts
While the division of retirement accounts is rather straightforward with heterosexual couples, it is often a convoluted process with same-sex litigation.
Domestic Partnership
Another layer that further complicates same sex divorce in California is if the couple obtained a domestic partnership prior to their marriage. If so, then the couple will need to terminate the domestic partnership in addition to ending the marriage. While this process is streamlined for heterosexual couples, it serves as another hurdle to overcome with same sex divorce.
Same Sex Divorce in California
In order to get divorced in California, you must meet California’s residency requirements. Either you or your spouse must have lived in:
If you and your spouse have been in California for at least six months but have lived in different counties, you can file in either county. If you are unable to satisfy the residency requirement, you have the option to file for a legal separation. After the required time has passed and you qualify for a divorce, your attorney can file an “amended petition” to request a divorce decree instead.
How to Facilitate a Smoother Same Sex Divorce
Since same sex divorce is a new area of practice, there are still many gray areas of the law that are open to interpretation. Due to the ambiguous nature of same sex divorce law, it is recommended to hire a same-sex divorce lawyer who is experienced with divorces between spouses of the same sex. Our team of qualified lawyers at LPEP represents one of the largest family law firms in San Jose, California. Contact our offices here to schedule a free 30-minute consultation in which you will learn your recommended course of action to protect your rights in your divorce litigation. You can also learn more about same-sex divorce here.
How Long Does Probate Take?
/in Estate Planning, Probate /by Michael LonichProbate is a dreaded process for many, full of uncertainty. Most people haven’t heard of probate prior to losing a loved one. It is a process that nearly every estate must pass through (with exceptions, of course). Many people find themselves wondering, how long does probate take? To answer this question, you need to understand how the process works.
What is Probate and How Long Does Probate Take?
Probate is the legal process that validates the legality of a will. In this process, a judge determines the validity of a will and declares it legal or invalid. How long does probate take? This process can last from six months up to two years. However, some probate cases have been known to drag on for years. While most probate proceedings are not as time-consuming, cases with high-assets, missing financial information, or cases that do not have a will tend to be significantly lengthier. It is highly recommended to hire an attorney to assist you with expediting the process and protecting the decedent’s assets.
Typically when a will is included, the cases are on the shorter side, however, if the judge believes that part of the will is invalid, the process will be much more extensive.
What Happens During Probate?
The first step is to establish an estate representative to represent the beneficiaries during the court proceedings. An estate representative is typically the executor of the will if a will exists, or it can be another person that is close to the deceased person.
During the legal process, personal representatives of the probate court will collect all assets and pertaining information, and provide the court with a basic catalog of the assets and determined worth.
Next, the beneficiaries of the inheritance are determined, based on either the will or their relationship to the deceased person. After the beneficiaries are determined, the representatives determine how and when the funds should be distributed. If there is a valid will, then this would be per the directions of the will and the reality of meeting logistical demands.
Finally, the beneficiaries examine the document describing the distribution of assets and determine if they approve the process, or raise any objections if need be. Once this step is complete, the court approves the estate distribution process and the assets pass probate.
Does My Estate Have to Pass Probate?
Some people chose to allow their loved ones to bypass the probate process by passing their inheritance through a revocable living trust instead of a last will. Revocable living trusts designate assets to a trustee, who is then responsible for distributing the assets to the beneficiaries. This allows the transference of assets without a lengthy process.. It is typically advisable to create a revocable living trust if you own real property and want to avoid the costly delay in the process.
While revocable living trusts are the most common alternative, other strategies include asking a qualified lawyer to create joint ownership of property or gifts, or pay-on-death accounts and registrations.
Understanding How an Attorney Can Help You
If you are uncertain and need to know how long does probate take in regards to your case, it is highly recommended to discuss your options with a qualified probate attorney. Call our office today to set up a free 30-minute consultation with LPEP. Our reputable law firm in the Bay Area specializes in high-net-worth estate planning. Our large team represents some of the best talents in the San Jose and Santa Clara areas, providing you with the necessary resources to protect your assets and work through the process. Set up a free 30 minute consultation here. (Virtual options available)