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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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WHO TO PICK AS AN EXECUTOR OF YOUR WILL
/in Estate Planning /by Michael LonichExecutors of wills have an important job. They are the person who will collect assets of your estate, protect the estate’s property, pay valid claims against the estate, and will distribute estate property to beneficiaries. The work can be extensive and complicated for someone who is not a proper fit, therefore it is essential to pick the right person.
If a person is chosen and does not have the ideal qualities, the estate may find itself being contested. This takes time and is also costly. Therefore, when choosing an executor it is important to look for qualities such as honesty, organization, and being a good communicator.
Having someone who is honest speaks for itself, but having an organized person is important too. Being organized will help your executor effectively distribute and manage your estate. Choosing someone with good communication skills is also helpful since this person will be talking with a variety of people and will be dealing with sensitive situations. Also take into consideration the location of who you are considering to choose. An executor may have to appear in court, check the property mail, and handle the property’s maintenance. These jobs may be easier for someone located close by versus someone out of the area.
There are a multitude of options for who can be your executor. An obvious choice is your partner or spouse. They are most likely to know your intentions for your estate. But if they are later in years, they may not be able to handle everything that needs to be done.
Children are another popular choice. For this option, take into account family dynamics; if you know choosing one child as executor and excluding another would cause problems then it may be best to name both as co-executors. This may be an option if both hold the qualities mentioned before. Also naming siblings as co-executors allows them to divide up responsibilities so not all duties fall on one child alone. However, if one child is obviously not qualified to be an executor it may be better to exclude them. In these situations, it is helpful to discuss the situation with your children that way they are able to hear from you why you chose one sibling over another.
If you do not have a spouse or children to name as executor, don’t despair. You can name other close family members or friends. Just make sure they have an idea of your intentions for your estate and possess the qualities that will help distributing the estate successfully.
However, if none of the above options are appealing, or if you have a particular complex estate then you may want to hire a specialist such as an attorney, bank, or trust company. Although this option costs an additional amount, these entities are experts in closing out an estate and distributing the property to beneficiaries. There is also less stress involved since they are not personally involved in the estate and are not mourning the loss of someone while distributing their property.
Whomever you choose, you must communicate with that individual that you are considering them to be your executor. This is an important role and they should be willing to do the job. If they decline, try not to take it personally; it’s a large job and there are plenty of options.
If you would like more information about estate planning, 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.
WHO GETS THE DOG?
/in Family Law /by Virginia LivelyTo many couples, their dog is more than a pet or piece of property, but is a member of the family. When couples make the decision to get a divorce, the issue of who gets the dog can be a deeply emotional one. Will the couple share custody, have sole custody with visitation, split the pets, or have one party get sole custody with no visitation rights? While the couple may consider the dog a member of the family, California courts look at the fury friend as personal property, much like a car or TV. This means who gets the dog is based on community personal property laws, and factors like who takes care of the dog, who remembers to feed him/her, or take him/her for walks will only be marginally considered. Instead, the Court is going to consider things like the date of purchase, whether a gift was intended, and what monetary value is associated with the dog. From a legal perspective, this is the same inquiry you would go through when determining who gets the furniture, but from the owner’s perspective, this is going to feel like actually splitting the “baby” in half. So how is the law going to “divide” Fido?
The first question is whether the dog is community or separate property. The court will look at when the dog was acquired. This means when the dog was purchased or, if you’re a true animal lover, when your pet was adopted. If the dog was purchased or adopted by one person prior to marriage, then the dog is that spouse’s separate property, and will remain with the original owner.
If the dog was adopted or purchased during the marriage, the next question is why was it? Was the dog purchased together, to be both parties’ pet, or was it purchased by one person as a gift to the other? If the dog was purchased/adopted during marriage, then the dog is community property, and the Court will need to award the dog to one party over the other. If however, the dog was a gift, the issue of transmutation arises. Transmutation is the change in character of property during the marriage. To be a valid transmutation, you generally need a writing with an express declaration of the property that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. There is an exception to the signed writing requirement; if the gift is an interspousal gift of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made, and the gift is not substantial in value taking into account the financial circumstances of the marriage (Cal. Fam. Code section 852).
If the dog was acquired during the marriage and is considered community property, the Court will need to determine which spouse to award the dog to. Although dogs are still primarily looked at as personal property, there is a growing tendency among judges to determine ownership of the dog based on the interests of the pet. California Family Code Section 6320 allows the judge to issue a protective order granting exclusive care, possession or control of a domestic animal to one spouse if there is a showing of good cause that there is a risk of the other spouse harming the animal. Judges are beginning to consider what is best for the pet, rather than just looking at them as property. The judge may consider if there are kids and which spouse will be awarded their custody, who has the financial ability to care for the animal, who the dog is attached to, and if one party will be dangerous to the animal.
While the court will determine where the dog will go in the event the parties cannot agree, it is important to know that you can determine who gets the dog outside of court, as you would any other personal property, in a settlement agreement. This means you can determine who gets custody of the dog, set a visitation schedule, decide who is responsible for transporting the dog, who will pay for vet visits, food, and other needs, etc. Further, the rules discussed above do not just apply to dogs, but will apply to any other furry or winged friends at issue.
If you are seeking information or counsel regarding divorce, division of assets, or, more specifically, who will get the pet in the event of divorce, please contact one of the experienced attorneys at Lonich Patton Erlich Policastri – we offer 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.
WHAT HAPPENS IF YOU DISOBEY A COURT ORDER TO VACCINATE YOUR CHILD?
/in Family Law /by Gina PolicastriFor many parents, the topic of vaccinations is a very personal one. There are strong stances on both sides of the vaccination divide, with some believing that vaccinations should be mandatory, and others believing that the decision to vaccinate should be their own. While the issue most commonly arises between parents and educational institutions, it is becoming more common for it to arise between separated parents. Although California has yet to decide a case involving violation of a court order for vaccinations, a recent Michigan case sheds some light on how California might rule on this issue.
In general, California has strict vaccination laws. California, along with the other 49 states, requires that school-age children be vaccinated against childhood diseases as a condition to attending school and day care programs. While some states do recognize your right to not vaccinate on religious grounds, and others recognize your right to not vaccinate on moral or philosophical grounds, California is not one of those states. The only permitted exemptions in California are for valid medical reasons. According to the National Vaccine Information Center, to qualify under a medical exemption, a parent or guardian must submit a written statement from a licensed physician (M.D. or D.O.) which confirms that the physical condition or medical circumstances of the child is such that the required immunization is not indicated, states which vaccines are being exempted, whether the medical exemption is permanent or temporary, and the expiration date, if the exemption is temporary.
The list of recognized medical exemptions in California is very narrow. You may find it at the National Vaccine Information Center website. It includes Autoimmune Conditions, Hyper immune conditions, Immune cancers, Immune deficiencies, Genetic SNP’s associated with increased vaccine reaction risk, and vaccine reactions. However, the state will not provide an exemption for ADD, behavior issues, psychiatric diseases, Asperger’s, Autism, neurologic diseases, hypertension, heart disease, liver disease, kidney disease, or adult onset diabetes.
Similarly, California’s contempt statutes contemplate strict compliance with a court order. Under California Civil Procedure Code sections 1218 and 1219, a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order, is subject to a contempt adjudication and statutory contempt penalties. Under California Penal Code section 166, contempt of court refers to any behavior that is disrespectful to the court process, including but not limited to, willfully disobeying a court order. The consequences of this may include jail time and/or fines.
The recent Michigan case involved a mother who was ordered, through a custody agreement, to maintain the child’s vaccinations. Despite this, the mother told the judge that she was personally opposed to vaccinating her son, and thus would not comply with the court order. This resulted in the mother being held in contempt of court, and the judge ordering her to spend 7 days in jail. The issue at hand was not specifically focused on the child being vaccinated or not, but rather on the mother’s willful disobedience of a clear order to maintain her child’s vaccinations.
The issue of complying with a court order is one that California is clear on. As such, if you are ordered by a court to maintain your child’s vaccinations, you must comply, or risk being held in contempt. However, in the event you are held in contempt of court, you do maintain your due process protections in the contempt proceeding. Contempt proceedings are criminal in nature, which means you have the right to notice, the opportunity to be heard, the right to counsel, the criminal burden of proof (beyond a reasonable doubt), and in some cases, the right to a jury trial.
If you have an issue concerning your rights regarding vaccinations, compliance with court orders, or contempt of court, 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.
IRS Withdraws Its Support of The Proposed Change to The Estate Tax Valuation Rules
/in Estate Planning /by Michael LonichThe US Treasury originally enacted IRC Section 2704 in 1990 to prevent people from taking advantage of the tax system. Specifically, IRC Section 2704(b) states that in valuing property for estate and gift tax purposes, some restrictions on the ability of an entity to liquidate would be disregarded. Currently, the regulation permits certain discounts for lack of control (minority interests) and lack of marketability that are commonly applied to lower the value of transferred interests for gift, estate, and generation-skipping tax purposes.
On August 3, 2016, The Treasury published proposed regulations under IRC Section 2704 that would have disallowed valuation discounts for interest in family controlled businesses that currently apply to gift and estate tax planning. By eliminating the valuation discounts, the proposed regulation would negatively impact succession planning for many small family owned businesses.
On October 4, 2017, the Treasury announced its withdrawal of the proposed regulations, explaining that they took an “unworkable” approach to the problem of artificial valuation discounts. In a press statement, the Treasury stated that the IRC Section 2704 proposed regulations: “would have hurt family-owned and operated businesses by limiting valuation discounts. The regulations would have made it difficult and costly for a family to transfer their businesses to the next generation.” Certainly, if passed, the proposed regulations would have disallowed discounts for lack of control and marketability commonly used by families in wealth transfer planning.
While the Treasury withdrew its proposed valuation regulations, it has released its annual inflation-indexed amounts for 2018:
1. The annual gift tax exclusion amount (i.e., the amount that can be given annually gift-tax-free to an unlimited number of donees) will increase to $15,000 per donee (or $30,000 for a married couple that elects to split gifts for the year), up from $14,000 in 2017.
2. The annual gift tax exclusion amount for gifts to a spouse who is not a United States citizen will increase to $152,000, up from $149,000.
3. The gift, estate, and GST tax exemption amount (i.e., the amount of taxable transfers that can be given transfer-tax-free in the aggregate during lifetime or at death) will increase to $5.6 million per person (or $11.2 million for a married couple), up from $5.49 million.
4. Recipients of gifts from foreign persons who are corporations or partnerships must report such gifts if the aggregate value of the gifts received in 2018 exceeds $16,111. The threshold for reporting gifts from a foreign person who is an individual will remain at $100,000.
Consulting with an attorney to learn about how valuation and taxation can impact your testamentary wishes is always wise. If you have any questions about your estate planning needs, please contact the experienced attorneys at Lonich Patton Erlich Policastri—we offer 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.
Filing for Divorce After a Temporary Restraining Order
/in Family Law /by Michael LonichFor many people in abusive marriages, the question is not whether to file for divorce or stick it out in a violent marriage. The question is how to file for divorce while remaining physically and financially safe from retaliatory spousal abuse. Audrina Patridge faced this exact question. Until recently, Audrina was stuck in an abusive marriage where she faced an aggressive, controlling, and physically threatening spouse. It is reported that Audrina wanted to file for divorce but she was scared that if she did, her husband, Corey Bohan, would retaliate with physical harm to Audrina, their one-year old daughter, or Audrina’s family members. Like others in similar situations, Audrina was scared to file for divorce without additional protection. Fortunately, the Family Court can provide additional protections for people in Audrina’s situation. That additional protection comes in the form of a Domestic Violence Temporary Restraining Order (DVTRO). On September 18, 2017, Audrina was granted a DVTRO against Corey. Audrina sought the restraining order as a protective measure for herself and her family members while she initiated divorce proceedings against Corey.
A DVTRO provides the abused spouse immediate, but temporary protection from the alleged abuser. There are numerous protections available under a DVTRO, protections that go far beyond simply keeping the alleged abuser away from the abused spouse. Additional available protections include, but are not limited to, child custody and support, an order for the alleged abuser to move out of the residence, orders that specify which spouse must pay debts, and property control. The myriad protections available under a DVTRO address the reality of domestic violence situations; the abused individual needs to protect their physical and financial safety, as well as that of their children, or other family members, including pets. For Audrina, the DVTRO enabled her to file for divorce with the confidence that she and her family would be safe from threats or acts of violence from Corey. With the DVTRO in place, Audrina filed her petition for divorce on September 20, 2017.
When a DVTRO is issued precedent to or simultaneously with a petition for divorce, the terms of the DVTRO necessarily become the status quo at the start of the divorce proceeding. Thus, it is important that an abused spouse obtain a DVTRO with as many protections as are applicable to their unique situation, as those terms will likely remain in place, regardless of the outcome of the domestic violence proceeding. By example, if the abused spouse requested a “move out” order and/or exclusive use and possession of the family residence, the alleged abuser will have to find alternate housing, and often, the alleged abuser will have to do so even after the DVTRO expires. When child custody orders originate from a DVTRO, the Court will modify custody orders only in rare instances, and typically it will only do so after numerous court appearances, and/or other ancillary interventions that take place over many months, e.g., the alleged abuser having professionally supervised visitation, parenting/anti-abuse classes, etc. In light of the above, it is critical that individuals who need a DVTRO to enable them to safely initiate divorce proceedings, consult with an attorney to carefully draft their DVTRO.
For more information about obtaining a DVTRO and/or a divorce in California, please contact our attorneys at Lonich Patton Erlich Policastri. 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.