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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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What Is Probate?
/in Estate Planning, Probate /by Michael LonichWhen a loved one passes away, you’re consumed with grief. The last thing you want to think about is how assets are divided up. Unfortunately, dealing with assets and the estate is necessary in the aftermath of one’s passing. If you’ve recently lost someone you care about, you may find yourself wondering “What is probate?” Learn what it is and how you can navigate this legal process.
What Is Probate?
Probate is a legal process that occurs after someone passes away. In this process, a court determines how that person’s assets will be divided up. It also dictates how creditors will be paid. Having a valid will can make all the difference in how this process unfolds. You may have heard bad things about probate. This usually has to do with how time-consuming and lengthy the process is. The probate process is paid for out of the estate, so the longer a case goes on, the more depleted the estate will become.
Testate vs. Intestate Wills
Testate means there is a valid will in place, while intestate means there was no will, or the will was proven to be invalid. If the will is valid, the court will use this to name an executor and follow some of the last wishes laid out in the will, if not all of them. When a person dies intestate, the assets will be distributed via California probate law on intestate succession. There will be a court-appointed representative in charge of distributing assets. Dying intestate can elongate the probate process, so setting up a final will and testament can greatly help your loved ones in the future. Regardless of whether your loved one died intestate or testate, some of the steps for probate are the same.
1. Notification
The executor named in the will or appointed by the court is responsible for notifying all creditors and heirs of the probate proceedings. California probate law allows creditors up to one year to place a claim against the estate for repayment. After that window has expired, they may not file a claim in most cases. All heirs, including the ones not mentioned in the will need to be notified of the proceedings. Any heir that sees fit has the right to contest the will. Waiting for all heirs to come forwards and for creditors to come forward is one of the lengthier steps to probate.
2. Debts & Taxes
The executor is in charge of paying off debts and taxes using the assets and estate. The executor must file both personal and estate tax returns if the estate is over a certain income. This adds time to the probate process as it generally takes the IRS 3-4 months to process estate tax returns. Any claims of debt against the estate made in the one year period after notification will need to be paid off using the estate. When an executor is named, they are responsible for the estate and its financial management. If you are the executor of an estate and need help with probate proceedings, contact our San Jose lawyer, Michael Lonich. He is an expert in estate planning and probate.
3. Assets & Division
After debts and taxes have been taken care of, and if no heirs have decided to contest the will, asset division can begin. With the help of a judge, assets will be passed on how the will lays out or how the court dictates. If an heir does decide to contest the will, probate cannot begin until these proceedings are completed. The contesting of a will can take years to resolve, which is a drain on the estate and extends the probate proceedings indefinitely.
What is probate and what steps must an estate go through for assets to be distributed? If you are an executor or an heir in a probate case and have questions about the next steps, contact our legal offices at Lonich Patton Ehrlich Policastri. We offer free 30 minute consultations – both virtually and in person. You can set your consultation up here.
Spousal Benefits for Same-Sex Marriages
/in Family Law /by Riley PenningtonIn recognition of Pride month, it is important to highlight the spousal benefits that were awarded to same-sex couples when same-sex marriage became legal. Although same-sex marriage was legalized in California in 2013, the United States Supreme Court held in Obergefell v. Hodges, that same-sex marriage was legal federally. This decision awarded many couples spousal benefits they were denied for so long.
What are Spousal Benefits?
In some situations, couples can receive advantageous benefits simply because they are married that non-married couples do not have access to. Some spousal benefits include social security benefits, health insurance, tax benefits, retirement, among others. In California, same-sex couples initially had to register as domestic partners to gain access to some of these benefits or they were outright denied altogether. However, since the landmark case Obergefell, same-sex couples are now eligible for spousal benefits that have historically been exclusive to heterosexual couples. This highlights a large step forward for equal same-sex couple rights to many Californians.
Social Security Spousal Benefits for Married Same-Sex Couples
If you are not eligible for social security because you have never worked or paid an insufficient amount into social security, you could potentially claim spousal benefits and receive some of your spouse’s social security. This allows you to receive up to 50% of your spouse’s social security payments and it does not impact the amount they receive. In order to claim these benefits, you must be 62 or older, your spouse must already be receiving social security and you must be married for at least a year. Some exceptions may apply to some cases.
Employer-Provided Health Insurance Coverage for Married Same-Sex Couples
When an employer offers their employees health insurance, generally that employee can extend their health insurance coverage to their immediate family which includes their spouse and their children. Historically, same-sex couples were not able to maintain health insurance for their partners because the state did not recognize their union. This often would put a burden on the non-employee partner to secure their own health insurance which could be costly. However, now that same-sex marriage is recognized as a legal marriage in the state of California, a same-sex spouse can be insured on their spouse’s employment provided health insurance absent any restrictions or barriers.
Tax Benefits for Married Couples
Married couples are potentially eligible for a multitude of tax benefits simply because they married that non-married couples are ineligible for. This includes filing a joint tax return which could lead to a lower amount of income taxed for both individuals. As mentioned above, a spouse can receive tax free health care coverage from their spouse’s employer. Additionally, same-sex married couples are also eligible for many tax benefits involving executing an estate. This is merely a small snapshot of the various tax benefits that married couples enjoy.
How Do I Learn More About What Spousal Benefits I Qualify for?
If you or a loved one would like to learn more about spousal benefits, please contact one of our experience attorneys at Lonich Patton Ehrlich Policastri for additional information here.
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 To Expect When You’re Expecting: Navigating The California Adoption Process For Same-Sex Couples
/in Family Law /by Gretchen BogerDuring Pride Month we commemorate and pay tribute to those who bravely protested during the 1969 Stonewall Riots and paved the way for the LGBT activists of today. We celebrate those who continue to fight for equality and recognize the ongoing struggle to solidify basic human rights for all. One right that cannot be overstated is the ability to create and maintain families with dignity. Many LGBT couples define this right as the ability to adopt a child in same-sex couple adoption.
Adoption in California
Each state has its own laws, procedures, and regulations regarding same-sex adoption, but in California, the law treats same-sex couples the same as any other prospective parent or couple. The state permits same-sex couples, as well as LGBT individuals, to pursue several adoption methods, all of which are the processes used by opposite-sex couples. The different types of adoption include:
Each option presents its own set of risks, some involving potential legal struggles with the biological parents, others possibly subjecting parents to extensive nuanced legal procedures and requirements. As such, seeking the advice of an attorney is helpful in determining what adoption plan is right for you.
Same-Sex Couple Adoption
Of course, in a perfect world, prospective parents in a same-sex relationship would not be subjected to evaluative procedures that differ from those of parents in an opposite-sex relationship. However, it is no secret that both express and implicit biases exist in our society and unfortunately, these predispositions can cause people to lose sight of the most important factor in adoption: the best interest of the child. As such, it is possible that an agency may conduct a more intrusive investigation for a same-sex couple. Such treatment may cause the process to be lengthier, and consequently more costly. In California, agencies are prohibited from discriminating based on sexual orientation and gender identity. However, if you believe you are facing any sort of discrimination, it is important to speak to an attorney about your options.
What Are the Next Steps?
Adoption is an inherently personal matter and can often be a very complicated and emotional process. As such, seeking legal assistance will help lessen the pressures that already come with starting a family. Our experienced same-sex adoption attorneys at Lonich Patton Ehrlich Policastri are able to lessen the burdens of the legal process and give you the time to fully enjoy the excitement of welcoming a new member into your family.
If you or a loved one are looking to adopt or have any questions about how to adopt as a same-sex couple, please set up a free virtual consultation with one of our experienced attorneys at Lonich Patton Ehrlich Policastri. You can set up your free virtual consultation here.
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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
What Is Divorce Mediation And Is It Right For You?
/in Family Law /by Gina PolicastriWhat if it was possible to get a divorce without going to court? If you could end your marriage without all the hurt feelings and animosity, would you? Divorce mediation provides the opportunity to dissolve a marriage without putting children in the middle of a conflict, and without terminating a good relationship between both parties. It provides the means to co-parent successfully with your ex while both of your personal interests are looked after. What is divorce mediation though, and is it right for you?
What Is Divorce Mediation?
When people think of divorce, they imagine hostile court hearings and expensive legal fees. Divorce mediation is an option two parties can choose that is cost-efficient and less conflict-oriented. In this method, two parties hire an impartial third party to negotiate an agreement between them. In this mediation, the mediator will walk you through a series of complex issues, taking both of your interests into account, and will help you agree on a settlement. Mediation aims to reach an agreement that satisfies both parties’ needs and wants, maintains an amicable or neutral relationship between the exes, and avoids the expensive legal fees from divorce litigation. Mediation is also popular because of the privacy it provides. There are no public records of what goes on in mediation sessions.
People tend to favor mediation because it gives them more control over their divorce and how different matters are handled. Some of the matters a mediator will help you with include:
Divorce mediation also helps with overall communication between a couple. If a couple is getting a divorce, it’s common that their communication methods are strained and ineffective. Having a divorce mediation lawyer trained in mediation and communication can vastly improve communication between two parties. Sometimes you just need a neutral third party to see things fairly.
When Mediation Isn’t Right For You
There are many instances in which mediation is a great decision. However, there are also plenty of circumstances in which mediation is not an option. One of the most common instances where mediation is not recommended is in the case of domestic violence. Because of the nature of the relationship between a domestic violence victim and an abuser, there is a heightened risk of tension turning violent. There’s also an increased risk that the abuser will intimidate the victim or threaten them, and they will agree to terms that aren’t actually equatable.
If one party does not want to get divorced, mediation may not be an option. Mediation relies on both parties being open and willing to communicate and separate. If one party is resistant or unwilling to do this, mediation isn’t an option.
If you have questions on whether divorce mediation is right for you, you can contact an experienced attorney at Lonich Patton Ehrlich Policastri. We’re located in San Jose, CA, and serve surrounding areas. Our lawyers are trained in mediation and collaborative divorce and can help you through this difficult time as easily as possible. We offer free 30 minute consultations, in person and virtually. Set yours up here.
How To Make A Temporary Restraining Order Permanent
/in Family Law /by David PattonDomestic violence restraining orders are incredibly helpful when you find yourself in a dangerous and abusive situation with some close to you. The court will grant these orders to you after an evaluation of the events leading up to you asking for a DVRO. There are various kinds of restraining orders – Emergency protective orders(EPO), temporary restraining orders(TRO), permanent restraining orders(PRO), and stay away orders. If you’ve already been granted a temporary restraining order, and are afraid for when it ends, how can you make it a permanent restraining order?
What is a Permanent Restraining Order?
A permanent restraining order is the strictest order in the state of California. Judges hand these out cautiously, and at their discretion. The circumstances which warrant a permanent order are usually severe, making acquiring one more challenging for victims. Don’t let this discourage you from seeking help. An experienced DVRO attorney can help you get the protection you need.
While a permanent restraining order isn’t actually permanent, it does last significantly longer than a temporary restraining order which spans 20-25 days on average. The span of a TRO depends on when your court date is scheduled. In California, a permanent RO can last up to 5 years. At that point, you can file for a new PRO with the courts to maintain protection.
Not only do PROs last longer, but they also have more severe consequences if the order is breached. A person who violates a PRO can be charged for each individual instance that they violated the order. So, if they violated the order 3 times, they can be charged with 3 separate counts. Violations can warrant penalties and fines, probation, and jail time.
During a permanent restraining order, both parties are prohibited from contacting one another for the duration of the order, even if the victim no longer wants the order. This means that the abuser can still be penalized if they communicate with the victim, even if they were not the one who initiated contact.
How To Make A TRO Permanent
After a judge has issued a temporary restraining order, a court date will be set by a judge. The victim will be protected until their court hearing (approximately 25 days). At this hearing, the victim and the accused abuser will both have a chance to present their case for why a PRO should or should not be granted. This is why having legal representation is so important. The victim will need to make a strong case for why a permanent restraining order should be put in place, as judges are very particular about granting these long term orders. If the victim does not show up to court, the temporary restraining order and its protection will end. If the accused does not show up, they will not be allowed to make a case against a PRO. The judge will make their decision without the input of the accused party. If the judge decides to put a PRO in place, they will determine the length of the order, having it last as long as 5 years.
If children are involved, you may file a restraining order on behalf of the child, or, if they are 12 years or older, they can file a RO themselves. Because of the nature of domestic violence in the case of children, PRO cases can often involve rulings on child custody and support.
If you need help in presenting your case for a permanent restraining order to the courts, or need help acquiring additional child custody orders in regards to PROs, get in touch with our San Jose restraining order attorneys. We have over 100 years of collective experience handling family law cases like TROs and PROs. Set up a free 30 minute consultation here. We also offer virtual consultations in light of COVID-19.