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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
LONICH PATTON EHRLICH POLICASTRI
Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com
1871 The Alameda, Suite 400
San Jose, CA 95126
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, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.
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Why Estate Planning is Essential for Parents of Children with Special Needs
/in Estate Planning /by Michael LonichAs the parent of a child with special needs, it can be difficult to think about the future when you will no longer be able to personally provide the loving care your child needs and deserves. One important way that you can continue to provide for your child, however, is to have an estate plan in place to ensure they have the legal, financial, and other support they need both now and in the future when you are no longer able to advocate on their behalf.
What An Estate Plan Includes
Estate planning is not contingent on having a substantial amount of wealth and is not limited to distribution of your assets alone. Rather, estate planning is the process of organizing both your financial and personal affairs to ensure that your final wishes are honored and your loved ones are taken care of after you are gone. For families, estate plans can allow you to assign insurance beneficiaries, plan for funeral expenses, and establish guardianship for living dependents, which is vital if you have young children or children with special needs who might never be in a position to effectively manage an inheritance on their own.
Special Needs Trust
If you are the parent of a special needs child, you must balance giving your child a portion of your estate with ensuring that those finances do not negatively impact your child’s eligibility to receive needs-based public benefits like Medicaid, Social Security Income, or the Supplemental Nutrition Assistance Program. Many of these benefits are only available to low-income individuals with limited assets, so leaving a lump sum of money as an inheritance to your special needs child might not be in their best interest. Instead, you should consider setting up a special needs trust (SNT), which allows you to leave the property and other assets to your child without disqualifying them from government-funded benefits. Setting up an SNT has the added benefit of allowing your loved one to receive assets from other people, including family members, as well.
If you choose to set up an SNT, you must also appoint a trustee to manage the funds on your child’s behalf. Your trustee will use the funds to support your special needs child’s quality of life, paying for anything he or she might require in the future, which could include, among other things:
It is important to include specific instructions in your SNT documents about how you want your appointed trustee to distribute the funds to properly care for and support your child.
Are You the Parent of a Child with Special Needs? We Can Help Protect Their Future.
The best time to begin estate planning, especially if you have a special needs child you want to provide for, is now. Although it can be uncomfortable to consider the inevitable, developing an estate plan can help ease your mind that your wishes will be carried out, and that your family will be protected in the future. Navigating all the different components of a comprehensive estate plan can be daunting, but the estate planning attorneys at Lonich Patton Ehrlich Policastri Law can help guide you every step of the way. In fact, our attorneys have particular expertise and experience in developing special needs trusts. Call us today at 408-553-0801 to schedule your free consultation.
What Rights Does a Biological Father Have in California?
/in Family Law /by Gina PolicastriIn California, the legal rights of a biological father depend on his relationship to the child’s mother. When a child is born to a couple who are married or in a domestic partnership, the father is automatically considered the child’s legal father.
However, the situation becomes more complicated if the couple is unwed. While the biological mother is automatically listed on the birth certificate, the father’s legal rights depend on establishing legal paternity.
How to Establish Paternity if You Are the Biological Father
There are a few ways to establish paternity in California if you are the biological father.
The first way is to voluntarily establish paternity with the child’s mother. You can do this by signing a declaration of paternity or by filing a Notice of Acknowledgment of Paternity with the California Department of Child Support Services.
The second way to establish paternity is through the courts. This can be done by filing a Petition to Establish Parental Relationship or requesting an Order for Genetic Testing.
Finally, paternity may also be established through the California Department of Social Services if the child is receiving public assistance.
In California, the biological father of a child has certain legal responsibilities. First and foremost, he is responsible for providing financial support for his child. This support can take the form of regular payments, which the court typically sets based on the father’s income and the needs of the child. The father may also be required to provide health insurance for the child and cover other expenses such as childcare or extracurricular activities.
He is also obligated to provide a safe and stable home environment, to ensure that the child has access to adequate medical care, and to provide for the child’s education. Furthermore, the father is expected to take an active role in parenting his child, including spending time with the child on a regular basis and being involved in decision-making.
A father can also petition the court for custody and visitation rights. The father has the right to request joint or sole custody of his child. The court will consider a number of factors in making its decision, including the child’s relationship with the father, the child’s wishes, and the impact of visitation on the child’s safety and well-being. The court will decide based on what is in the child’s best interests. In some cases, this may mean that the father is granted visitation rights rather than full custody.
Know Your Rights
As a biological father in California, you have several legal rights that are important to understand. But, the legal system may be difficult to navigate on your own. If you need help establishing paternity or understanding your responsibilities and obligations, Lonich Patton Ehrlich Policastri can help. Contact us for a free consultation. Our team of experienced family law attorneys can review your case and answer any questions you may have. If you live in San Jose or the greater Bay Area, fill out our contact form or call us at 408-553-0801.
What to Know Before Signing a Prenup
/in Family Law /by David PattonWhen two people fall in love and decide to get married, everyone tends to focus only on the exciting events to follow. While marriage is definitely something to celebrate, it is nothing to be taken lightly. It is a lifelong commitment that unfortunately is becoming increasingly likely to end in divorce. A prenuptial agreement can go a long way in ensuring the safety of both partners’ assets, business interests, and family trusts.
What is a prenuptial agreement?
Prenuptial agreements, also known as a “prenup”, is a private agreement between the two spouses-to-be. It sets out the stipulations of your marriage and outlines the provisions for what will happen in the event of a divorce or the untimely death of either spouse. Prenups most commonly outline who will receive property and other assets, including property owned by each spouse prior to getting married and whatever they might acquire together after getting married. In the state of California, this legal document declares the assets and debts of each individual before marriage and how those will be separated after a divorce. A prenup can also dictate how much alimony a spouse is entitled to. It is also becoming more common for pets to be included in prenuptial agreements.
Why get a prenup?
There are many, many reasons to have a prenuptial agreement in place prior to getting married. A few of these are:
Prenuptial agreements can’t include anything that goes against public policy or that is downright illegal. For example, a prenup that contains anything that will adversely affect the rights of a child will be deemed unenforceable. The courts will always act in the best interest of a child. However, prenups can go above and beyond in making provisions for children. They can dictate the responsibility of each parent for future college expenses and other financial needs of the child. California Family Code Section 1612 specifically states what is legally able to be included and enforced in a prenuptial agreement.
Consult with an expert on whether a prenuptial agreement is right for you.
Having a prenup in place before getting married can give both you and your partner peace of mind. Hopefully it is something you don’t ever need, but in the unfortunate event that a divorce does happen, it is better to know that your assets are protected. Here at Lonich Patton Ehrlich Policastri, we specialize in Family Law and Estate Planning. We have significant experience in drafting prenuptial agreements that can withstand a court challenge. We have combined litigation experience of over 100 years and we know just how messy and complex a divorce can be. Call us today at 408-553-0801 or click here to schedule a free 30-minute consultation.
How Does An Affair Impact Custody Agreements?
/in Family Law /by Virginia LivelyAn affair is a life-altering event. The repercussions of infidelity affect far more people than just the spouse who was cheated on. Often, the party who suffers the most is the most innocent – the children. In addition to their family structure being shaken up, they will now have to split time between both parents. Before this happens, a custody agreement must be arranged in court. So, how does an affair affect custody agreements?
California is a no-fault divorce state.
Here in California, the court system does not need to know the specific reasons why a marriage is being dissolved. Even though an affair might be the reason why a couple is seeking a divorce, the court will rule it as “irreconcilable differences” without determining which party is at fault.
With that being said, infidelity typically has little to no impact on determining child custody. The spouse who was spurned by the affair cannot use being cheated on as a reason to deprive the other parent of custody. The best interest of the child is what the court bases custody rights off of, and a parent’s romantic interests usually don’t have much effect on that.
There are exceptions to every rule.
Although infidelity alone will not have an impact on the custody agreement, other factors which stem from an affair might. For example, if there was domestic violence or substance abuse in the home, that would certainly impact child custody. If the spouse having the affair was neglectful to the children and left them unattended and unsupervised to meet up with their romantic interest, that would also impact custody.
Likewise, if the parent who was cheated on proves to be vindictive and is going to create a negative environment for the children, the court would take that into consideration. The safety and well-being of the children should be the forefront concern for both parents. If either parent is not capable of providing a safe and nurturing environment for their children, that will become a factor in the custody proceedings.
How do I know if an affair will affect my custody agreement?
Every case is different, and there is no “one size fits all” advice when it comes to topics as complex as child custody. Here at Lonich Patton Ehrlich Policastri, we specialize in family law and estate planning. We are located in San Jose, CA, and serve the greater Bay Area. We are one of the largest practices in the Bay Area and we are Board Certified Family Law Specialists. We have been serving the community since 1994. Our attorneys genuinely care about each individual client and we want to take the time necessary to understand your objectives and meet your needs. We have the proper resources, training, and experience to serve your family with the best expertise in the area.
Please give us a call at 408-553-0801 or fill out our contact form for a free consultation. You deserve to know your rights and the best way to proceed with a divorce and custody agreement.
What Happens When You Inherit an IRA?
/in Estate Planning /by Michael LonichThe short answer is: it depends. Navigating what happens after inheriting an IRA (individual retirement) account can seem overwhelming, but we at Lonich Patton Ehrlich Policastri are here to help you know your options and determine your next steps. Estate planning is one of our areas of expertise, and we are more than happy to help you make decisions regarding your new inheritance.
Know what kind of IRA you have inherited.
The very first thing to do upon finding out you have inherited an IRA is to figure out important details such as what type of account it is. There are multiple types of IRAs, but the most common two are a traditional IRA and a Roth IRA.
Knowing the account type is significant because the tax treatment remains the same for the heir as it was with the original owner. The beneficiary will typically have to move the assets from the original account over to a newly opened inherited IRA in their name.
What type of beneficiary are you?
Anyone is able to inherit an IRA, but the rules for what they can do with it differ depending on whether the heir is the spouse of the deceased or not. Due to the passage of the SECURE Act of 2019, non-spousal heirs who inherit an IRA on or after January 1, 2020, now have even more limited options than before. Funds must be spent within 10 years of the original account owner’s passing, regardless of account type. Spouses tend to have more freedom with how they manage their inherited IRA.
Other factors that come into play include when the account was opened and if the original investor had begun taking out their required minimum distributions (RMD) for a traditional IRA.
There is no one-size-fits-all explanation for inheriting an IRA.
Each situation is different, and every heir faces different circumstances. Here at LPEP Law, we have highly qualified trust and estate lawyers on staff who are eager to help you determine your next steps once you inherit an IRA. Click here to schedule a free 30-minute consultation with us, or give us a call at 408-553-0801. We are more than happy to equip you with the knowledge of how to proceed as a beneficiary. We are committed to treating every individual client with the utmost respect and professionalism, and to making this journey as easy as possible for you.