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LONICH PATTON EHRLICH POLICASTRI
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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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PROTECTING YOUR ESTATE DURING DIVORCE
/2 Comments/in Estate Planning /by Michael LonichGoing through divorce may be one of the most challenging and stressful ordeals you will experience. There are numerous questions you have to answer, a slew of documents you have to dig up, and brings an incredible amount of emotional turmoil. While you may be ready to forget your ex-spouse completely, do not forget to change your estate plan. If you have a previous plan, you likely named your ex-spouse as the successor trustee, executor, power of attorney, and/or beneficiary. It is very unlikely that you will want to leave your ex-spouse in that role, making it vital to change your estate plan.
In a revocable trust, the trustor or trustee, not the beneficiary, has control over when and if the benefits are distributed. However, when you die, whomever you named as executor of your will or successor trustee of your trust will have control over when and if the benefits are distributed. It is likely that you would designate your spouse as executor and successor trustee during marriage, so it will be important to have a new estate plan done, in order to designate a new person to fill these rolls. It is your decision who will fill the roles. Your executor or trustee does not need any special training, but must be an organized, prudent, responsible, and honest person. Additionally, you will want to consider who is named as beneficiary on any retirement accounts, life insurance, or additional benefits. If you had named your spouse, you would want to give your estate attorney at least one new person who would be a beneficiary.
While most assets are subject to your estate plan at death, there are some exceptions. These exceptions include life insurance policies, IRAs, and other tax-deferred retirement plans. These are distributed according to beneficiary designations, which override the designation in your will or trust. It is important to update beneficiary designations right after the divorce, if you choose not to during the process, as just updating your estate plan will not affect who gets the benefits of these plans.
Further, if your ex is your agent on your durable power of attorney for property, you should consider changing his/her name immediately to prevent your ex from having unlimited access to bank accounts or financial assets. Additionally, you should name another person as your agent to make health care decisions for you if you are unable to make your own decisions. It is important to also name an alternate agent to act for you if your first choice is not willing, able, or reasonably available to make decisions for you. You may choose to limit the authority of your agent, but if you choose not to limit his/her authority, they may, but are not limited to, consent or refuse care, treatment, or procedures, agree to tests, surgery, and medication, and designate anatomical gifts. Who you choose to make these decisions should be someone you believe understands and will respect your wishes.
Finally, you may also be wondering how to provide for your minor children in the event of your death, if your ex has no custody rights over them. You should nominate a guardian to supervise and care for your child until he/she is 18 years old. Under California law, a minor child would not be legally qualified to care for him/herself, or to manage his/her own property. You can make the designation in your estate plan.
If you are seeking information or counsel regarding estate planning or protecting your property during divorce, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri – we offer free half-hour consultations. We also offer free wills to all of our family law clients during the process of their divorce.
Lastly, 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.
HOW TO PROTECT YOURSELF WITHOUT A PRENUPTIAL AGREEMENT
/in Family Law /by Virginia LivelyDebating on whether or not to present your future spouse with a prenuptial agreement can be a hot button issue. Nothing is more romantic than planning for the possibility of divorce before your wedding day. If you are the type of person that would like to have protections regarding your property, but do not want a full-fledged prenuptial agreement, there are many options available to you. Since in California we run a community property system, acting upon these options are necessary to ensure that your separate property stays separate. Community property is all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state. (Cal Fam Code § 760). Separate property is all property acquired before marriage or during marriage by gift, bequest, devise, or descent, including the rents, issues, and profits of the separate property. (Cal Fam Code § 770). As a married person, however, you can generally maintain your own “separate property” by making sure it literally stays separate and doesn’t mingle with anything community.
Separate Property Inventories: the best way to ensure you have adequate accounting for your separate property assets is to keep an inventory of them. You would identify the property you are bringing into the marriage and identify the rents, issues, and profits from them. Think of this as a proactive tracking and accounting of what you have. While this task is time consuming, it would be helpful to identify the fair market value of each item you are listing as well. In case there is any appreciation in value of your property, your spouse may have a claim to some reimbursement to that appreciation, discussed more later. This inventory does not need to be limited solely to property you acquired prior to marriage. You can update this list during the marriage by identifying any property you received as a gift, devise, bequest or descent. As noted above, property in these categories are also your separate property whether or not you are married at the time you receive it. Id.
Separate Funds: Keep your non-marital funds separate. The best way to generally ensure your marital funds are separate would be to keep any money you earned before marriage, or inherited at any time, in a bank account separate from your spouse’s. Obtaining a sole account in your name gives only you access to the funds in the account and the ability to obtain information from the account. (Carillo, supra at 38-39). Any earnings you receive during marriage should go into another account, either another sole account or a joint account with your spouse. Any earnings you receive during marriage are community property barring an agreement between you and your spouse. This includes any expenditures of time, talent, and labor. (In re Marriage of Dekker, 17 Cal. App. 4th 842, 850, 21 Cal. Rptr. 2d 642, 647 (1993)). When your community property earnings are combined with you separate property earnings it results in “commingled” funds. (Carillo, supra at 79). Courts would need trace the funds back to both separate funds and community funds to determine their contribution to the purchase and thus their entitlement to reimbursement. Keeping funds separate saves a lot of time and confusion and is more likely to result in those funds being treated as your separate property later than if the funds have to be traced.
Real estate: Keep your real property separate from your spouse. One example: purchasing a home before you met or were married to your spouse. If you want that property to remain solely your separate property then you would refrain from adding your spouse’s name to the title of your home. Having joint title on the deed of your home raises a presumption that the property is community property. (Cal Fam Code § 2581). In addition, you would also need to maintain the home solely with non-marital funds. This could be done with money you earned before marriage or an inheritance because these are your separate property, as defined above.
Separate Business: Obtain a valuation of your separate business prior to marriage. The value of your business at divorce will likely be higher than before marriage and would be subject to the community property presumption. Any community contributions to this increase will be entitled to some reimbursement at divorce. (In re Marriage of Dekker, 17 Cal. App. 4th 842, 851, 21 Cal. Rptr. 2d 642, 647 (1993)). The problem is, if you did not obtain the value of your business before marriage, your spouse may receive more than he or she is actually entitled to receive or actually contributed to the business growth. For example: your business was valued at $100,000 on the date of your marriage and worth $500,000 on the date of your divorce. Your spouse would be entitled to $200,000 which is half of the appreciation (or difference between the two valuations). If you did not receive that initial valuation, the court could end up valuing it at less than its actual value at the time, and your spouse would receive more.
If you have an issue concerning your separate property rights, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri. We offer a free half-hour consultations.
Lastly, 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.
GETTING A PATERNITY JUDGMENT FOR A CHILD BORN OUT OF WEDLOCK
/1 Comment/in Family Law /by Lonich Patton Ehrlich PolicastriEstablishing paternity can be an overwhelming time for many parents. There are many situations in which a want or need to establish paternity arises from. One example being a child born out of wedlock, or during a time where the two parents were not married. Even if unmarried, the two can sign a voluntary declaration of parentage at the child’s birth in order to identify them as the mother and father. However, in some cases of children born out of wedlock, the mother may even omit adding the father’s name on the child’s birth certificate. When this happens, it is not hopeless to identify and establish a man as the father later on. The man hoping to establish himself as the child’s father, or even the mother, may file a petition with the court for a paternity judgment. There are many reasons why a parent may want to establish paternity.
First, it is usually, but not always, in the child’s best interest to have both a mother and father figure in the child’s life. Studies have shown that a good working relationship between mother and father are vital to a child’s emotional well-being and results in positive relationships and fewer behavioral problems. (41 Fam. Ct. Rev. 354). If the child has gone many years without knowing the identity of his biological father, it may also give him a sense of relief to finally receive this information and a part of his identity he had not known. Second, establishing paternity can hold a father of a child accountable for support, whether it be emotionally or financially. If a father has been resistant to claim a child as his, establishing this paternity judgement can ensure that he is held responsible for his duties as a father. Third, it could allow a father to be present in a child’s life when the mother is resisting. Lastly, it can allow the child to claim inheritances and social security benefits.
To enable a child to reap these benefits, parentage must be established. As noted above, there a few methods to do so. One option is to sign a voluntary declaration establishing parentage. Usually at birth of the child, the person responsible for registering live births shall offer to the mother, and to the person identified by the mother as being the child’s father, a voluntary declaration of paternity for the two to sign. (Cal Fam Code § 7571). This declaration will hold the same weight as if you had gotten a judgment of parentage in court. (Cal Fam Code § 7573). If signing a declaration at birth was not an option for you or was not done, a voluntary agreement can still be drafted and signed establishing you both as parents later on. The declaration would need to be executed on a form developed by the Department of Child Support Services in consultation with the State Department of Health Services, the California Family Support Council, and child support advocacy groups. (Cal Fam Code § 7574). It will then be signed by a judge and filed in the court.
To get a paternity judgment by a judge, you would need to file a parentage case with your local superior court. Only the child, the child’s biological mother, the presumed father of the child, an adoption agency who has the child, or a prospective adoptive parent may file an action for paternity. (Cal Fam Code § 7630). A presumed father is one who was married to the child’s biological mother when the child was born, there was a valid attempt to try to marry before the child’s birth, they married or attempted to marry after the child’s birth, or one who receives the child into his home as if the child is his. (Cal Fam Code § 7611). There are many forms to file to open a parentage case with the court, so it is advised that you reach out to an experienced attorney to help you. Once forms are filed, the other parent has thirty days to respond to the petition or else it is defaulted. If the other side does respond within that thirty days, they will likely contest the petition and ask the parties to submit to a blood test.
The court may, on its own or because of a motion to the court, order a mother, child, and alleged father to submit to genetic testing to establish paternity. (Cal Fam Code § 7551). So that both parties can feel confident about the results of the test will be accurate, it is required that the genetics testing is done by a laboratory approved by the United States Secretary of Health and Human Services. (Cal Fam Code § 7552). If it is determined that he is not the child’s biological father, then the court will resolve the matter accordingly. (Cal Fam Code § 7554). If, however, it is determined that the man is indeed the child’s father then he will have the same obligations and responsibilities to the child as if the issue of parentage was not even raised.
If you have an issue concerning issues of paternity or your rights as a parent, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri. We offer a free half-hour consultations.
Lastly, 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.
HOW TO AVOID CONFLICT IN ESTATE PLANNING
/in Estate Planning /by Michael LonichSome say, “if there is a will, there is a family fighting over it.” But a brawl between loved ones isn’t necessary if these 6 tips are followed.
1. Make A Plan!
You do not want to leave uncertainty and confusion for your loved ones when you pass. Do not take a “they will figure it out” approach. This is most likely lead to confusion, conflict, and possibly court. Be detailed in your wishes and instructions. If you fail to be clear or make a plan all together then it will be up to the court in deciding who is given what.
There are several options available when deciding an estate plan and what is best for your best friend may not be best for you. Therefore, it may be wise to meet with a knowledgeable estate attorney who can guide you through your planning options.
2. Update On The Regular
Once you make a plan – keep it updated. This does not need to be a weekly event, but it does need to happen when there is a change in life circumstances. These events may include: a divorce, a marriage, change in property ownership, or having a baby.
3. Do Not Rely On Family Utopia
Even if your family gatherings are like a glimpse into Utopia itself, do not rely on everyone agreeing all the time. Life is complicated and constantly changing. Therefore, if a child’s life circumstances change their goals may no longer align with everyone else’s. Change is normal in life and your estate plan should reflect that.
4. Communicate
You are not required to talk to your loved ones about your plans, but this tip is encouraged. Family input may be beneficial and it will lessen the chances of someone being surprised later on. It is also important to communicate in order to have everyone on the same page regarding issues such as: plans for a disabled child, the succession of the family business, or for the continued enjoyment of a vacation home. Although it may be an awkward conversation, it is important to have these discussions.
5. Remove Assets From Probate
Probate is something most people try to avoid and if you want your loved ones getting the most from what you left them, you will too. Two common ways to avoid probate is through revocable trusts and beneficiary designations. Another way to help avoid probate is to make sure the named beneficiaries in other asset documents are consistent with your whole plan. However, once again, it is important to discuss what estate plan options are best for you with an attorney – a revocable trust may not be it and you may be able to avoid probate through other avenues.
6. Consider Someone Outside The Family In Charge Of Assets
Some good choices are a law firm or trust company. By naming someone not in the family, it will help reduce the risk of disharmony. It is crucial to make a smart choice in appointing a Trustee and Agents under Powers of Attorney. You should not make this decision based solely on who is your favorite to hang out with. There are a multitude of factors to take into consideration and you should speak openly with your attorney to decide who would be best for the position.
If you are considering creating an estate plan and would like more information, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.
Lastly, 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.
CHARITABLE BEQUEST
/in Estate Planning /by Michael LonichIn 2016, charitable giving amounts reached record levels – $390.05 billion to be exact. This increase and the overall size of charitable contributions is testament to the integral role charities play in our lives. Thus, for people who have given to charities and organizations throughout their lives many wish for its continuance after their death.
Can I give assets to a charity or organization after I die?
An estate attorney can draft a charitable bequest provision for individuals who wish to bequest certain assets to an organization or charity. A charitable bequest is a written statement in a person’s will that directs a gift to be made to a charity upon the death of the testator, the maker of the will. However, there are other options available and it is therefore important to speak with an attorney to best fulfill your wishes.
What can I bequest to a charity?
There are many things you can give. A set money amount or real property, such as a home or land are two options. Additionally, an individual may bequest tangible personal property such as: a jet, car, artwork, antiques, or collectables. It is important to consider what the charity or organization can use best; some would greatly appreciate a parcel of land, while others would be better served with receiving money.
How do I bequest these assets?
There are different formats a testator may choose from.
The most common is called a general bequest. This allocates a set amount of money paid to a particular beneficiary. It is charged against the estate at death and must be satisfied.
The next is called a special bequest. This allocates a particular property or dollar amount to be awarded to a beneficiary. However, if you are considering to bequest a property you MUST own that specific property at your death – no other property will satisfy. A special bequest is also the first type of bequest satisfied upon an estate distribution.
A residuary bequest is a third form. This allows the beneficiary to receive assets that remain in the estate after all other bequests, as well as any tax or administrative costs, have been satisfied.
The final form is a percentage bequest, where a set percentage of the estate’s value is given to a beneficiary. This allows the charity or organization to benefit from the estate’s growth during the donor’s lifetime.
If you are considering bequesting to a charity and would like more information, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.
Lastly, 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.