Read Our Blog Written By Our Team Of Experienced Attorneys

Blog

A person signs a last will with the help of a San Jose attorney

What Goes Into Setting Up A Last Will?

February 20, 2020/1 Comment/in Estate Planning /by Michael Lonich

The idea that you will not be around forever is never an easy truth to face, and knowing that you will leave behind loved ones makes it even more challenging.

In order to make the situation easier for your loved ones, it is essential that you take the appropriate actions to guarantee that you will leave them with their intended assets.

The most important thing that you can do to ensure that your property is handled appropriately is to create a last will. A will is a legal document that dictates who will receive your property, names guardians for your children, and even allows you to specify funeral arrangements.

Steps to Creating a Last Will

1. Do Your Research

The most important step in setting up your last will is to conduct research and do your due diligence to ensure that the appropriate legal measures are taken. These specific processes vary by state, thus it is highly recommended to conduct this process with the assistance of a qualified and reputable lawyer.

2. Aggregate Your Assets

When setting up your last will, it is imperative that you create an organized list that includes all your real estate, bank accounts, insurance policies, and retirement accounts. Make sure that all of the account numbers, answers to security questions, and any other necessary information is included.

3. Choose Your Executor

An executor of the will is the person legally responsible for ensuring that all specifications of your will are carried out, your assets are appropriately distributed, and that your financial assets are resolved.

It is highly recommended that this person receives part of your assets since they bear the responsibility of executing your will.

4. Choose Your Beneficiaries

Your beneficiaries are the people who will receive your assets upon your passing. It is important that you are specific with naming the people and stating the amounts that they will receive.

A person names their beneficiaries in their last will with the help of an attorney.

5. Name Guardians for Your Children

If you have children under the age of 18, it is recommended to make a list of at least three guardians (in order of preference) for your children if you pass away. This ensures that there are people of your choosing who will take care of your children if the first choice is unable to do so. If you have the means, it is wise to leave the guardians with financial assistance by naming them as beneficiaries as well.

6. Select a Witness to Sign Your Last Will

You must have a witness sign your will who is not a beneficiary. The number of witnesses involved and the formalities of signing vary by state. It is important that the specifications are carried through exactly as mandated or else your will may not hold up during probate

7. Keep Your Will In a Safe Location

Once your last will has been lawfully created, it is important to keep it in a safe, secure, and accessible location. It is also wise to inform a trusted person, perhaps your executor, of its locations.

Updating Your Last Will

You should always update your will after the event of a significant life event regarding:

A marriage or divorce
An acquisition of new property
The birth of a child
The death of a spouse
The sale or purchase of a business

The Bottom Line

If your estate is particularly large, you have joint custody of a property, you own a business, you own property abroad, or if you think someone may question the validity of your will then it is especially important to hire a lawyer for your last will.

Lonich Patton Ehrlich Policastri in San Jose is a reputable law firm whose lawyers make it their priority to protect your assets from an extensive probate process.

If you are living in San Jose and want to leave a legacy for your loved ones, our attorneys will help make your intentions a reality. Set up a free consultation with us.

Buy-Sell Agreement In Family Business

January 29, 2020/in Business Law, Estate Planning /by Michael Lonich

You may have heard of shareholder agreements but have you heard of the more specific Buy-Sell Agreement? This is a fundamental succession planning tool when it comes to owning and operating a business. It is especially helpful in the case of family businesses.

What Is A Buy-Sell Agreement?

Similar to how a will dictates how assets will be transferred in death, a buy-sell agreement is a legal document that dictates where an owner or partner’s share of a business will go in the case of certain life events (i.e. death, retirement, etc.)

Having an agreement like this in place protects the family business. It protects family assets so that everything stays in the family’s control and so that nothing can be transferred outside the family. These agreements can dictate the succession of ownership.

How It Protects Your Family Business

Often, for a myriad of reasons, one family member or partner will try to sell their share of the business. This can cause issues if they’re trying to sell their share outside of the family.Without an agreement in place, they can sell their share off legally despite their intentions. Setting up a buy-sell agreement means you can dictate how shares and assets are transferred or sold. You can create certain stipulations that prevent a family member from selling outside the family.

A married couple sets up precautions of a divorce in their buy-sell agreement

It can also help to have an agreement in place in case of a divorce. In California, any assets acquired during a marriage qualify as community property. This means that a spouse of the family owner can lay claim to their share of the family business. If you create a strict buy-sell document that requires the spouse to sell their share back to the company in the case of a divorce, you can prevent the share from transferring outside of the family.

The agreements are meant to be put in place in preparation of certain life events. If there is a divorce, or a retirement or a death, a plan is in place to prevent chaos. It is also great to have in place in the case of incapacitation which can include dementia or other things that prevent a person from acting in a mentally sound way or making informed choices.

Having a buy-sell agreement can assure the long term survival of a family business. Why would you not want to have that added layer of protection?

A Buy-Sell Agreement…

Ensures shares stay in the family
Creates a special space where shares can be bought and sold under dictated parameters
Identifies potential future events and conditions that trigger the agreement. These will determine what happens to that share
Determines the valuation of business shares
Specifies the source of funding for the purchase. Where does the money that will be paid in the transfer come from?

If you own a family business or a partner in one, you should consider the benefits of having a buy-sell agreement. That extra protection can ensure the longevity of your company. Live in the greater San Jose and Bay area? Set up your free consultation with Lonich Patton Ehrlich Policastri today.

A man, granted power of attorney, signs a legal document.

How To Get Power Of Attorney In California

January 22, 2020/in Estate Planning /by Michael Lonich

There are many reasons residents of California seek out power of attorney(POA). If you have an older parent with dementia who struggles to act on their own, POA is a way to assure decisions that need to be made are made soundly. If you are being deployed, granting someone power of attorney can allow them to act for you in necessary areas while you are away. If you own a property and reside far away from it, you can grant POA so that someone who lives closer can manage your property for you. These are just a few instances in which the power of attorney becomes valuable. Most likely, you know why you need POA. The question is, how do you get it?

What Is Power Of Attorney?

POA is a legal document through which a person (aka agent) is appointed to make medical and financial decisions on a person’s (principal’s) behalf.

This seems simple in theory, but there are several types of POA, and that’s where things get a little confusing. When you add the different laws per state, things become very murky for those seeking legal help. Lonich Patton Ehrlich Policastri, a legal firm in San Jose, CA, can help clear things up for California residents by breaking down the types of POA.

What Are The Different Versions Of Power Of Attorney?

There are a few different types of POA. To get started, you need to determine which type is right for your situation.

Durable – This document allows you to choose someone to act for you financially and medically, and grants decision making power regardless of future incapacitation. The incapacitation addendum for this specific document means that even if the principal becomes incapacitated, the document will remain valid.

An alternate version of this is the Springing POA in which the document only becomes active when the person becomes incapacitated.

General – This is known as the financial power of attorney as it grants no power over medical decision making. This also differs from the durable POA because it has no incapacitation addendum. This means if the principal becomes incapacitated, the document will become void. This document is effective immediately.

A person with general power of attorney counts paper money

Limited – This document allows you to choose someone to act in your place for a specific or single duty. Once the duty is complete, the form becomes void. An example of this would be for a real estate transaction that is taking place. POA is only needed on a temporary basis for a very narrow and specific instance.

Medical – This is also known as a Health Care POA. This grants decision making power for all medical reasons. It also has an incapacitation addendum. It only grants power if the principal is unable to make decisions for themself.

What Happens Next?

So, you’ve determined which document you need. What’s next? There are a couple of legal requirements to complete a power of attorney.

The agent must be 18 years old at least and mentally sound. They should also be someone you trust and can rely on to act in your best interests.

Many people wonder if the document needs to be notarized or witnessed. Based on California law, it can be either.

You can notarize a document for little cost. Some USPS locations now have notaries onsite. While it isn’t required, it is recommended to have real estate matters notarized for solid records.

Someone setting up power of attorney has a legal document notarized

Having a document witnessed can be a little more intricate. You must have 2 independent witnesses that are adults and mentally sound. The named agent of the POA cannot be a witness. For medical POAs, a healthcare provider or employee of the healthcare provider cannot be a witness either. Once you have your two witnesses, you must sign the document in the presence of the witnesses or you must go through a process known as acknowledgment. This can be as simple as signing the document and calling the witnesses over to say “I signed this. This is my signature.”

If you live in the greater Bay area, such as San Jose, and are in need of legal advice on POA, contact Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations and can help you choose the right document for your situation. Set up your consultation here.

A Trust administrator is responsible for handling money and the estate

What Does A Trust Administrator Do?

January 15, 2020/2 Comments/in Estate Planning /by Michael Lonich

There are a lot of responsibilities when it comes to being a trust administrator. Most likely, if you’ve found yourself in this position, you didn’t know much – if anything – about trust administration beforehand. That can leave you with a lot of questions. The lawyers at Lonich Patton Ehrlich Policastri can shed light on your responsibilities and guide you through the administration process.

To start with, what does a trust administrator do?

Trust administrators have a huge responsibility and little room for mistakes. This can be overwhelming. It’s good to know what kinds of duties you will be responsible for going into the process.

A trust administrator goes over the division of assets and the estate laid out on the trust

Valuation Of Assets One of the administrator’s fiduciary duties is to assess the assets in the trust and value them. Valuation allows one to determine the total worth of the trust.

Deducting Liabilities Once the assets worth has been determined, it is the trust administrator job to deduct all liabilities from the total worth. Liabilities include all costs and expenses of the trust.

Record Keeping The administrator must keep track of the trust funds, taxes paid, and all correspondence. These records must be completely transparent as beneficiaries can view them at any point, but most commonly every six months or on an annual basis.

Filing Income Tax Returns The admin is required to file income tax returns yearly for the trust. This is because trust assets are not able to be distributed tax free. However, there can be deductions. Any taxes due are paid directly out of the trust. Go here for some tips on fiduciary tax returns.

Maintaining And Monitoring Assets It is the duty of the admin to maintain the value of the trust and the assets within it. You need to keep track of spending and costs to try and maintain the worth of the trust over time. This requires you to keep track of and audit any change within the trust. This ties back into record keeping.

Updating/Informing Beneficiaries Beneficiaries must be informed of the trust and updated on the status of the trust over time. The administrator must share trust expenses among other things with all beneficiaries after the initial notice that the trust exists and they are named a beneficiary.

Safeguarding Interests This means it is the admin’s job to protect the assets against unauthorized spending or use. What is needed to safeguard an asset varies case to case. An experienced attorney can help you determine what’s right for your situation and how to best protect assets. Contact Lonich Patton Ehrlich Policastri for a free 30 minute consultation on trust administration.

Along with their fiduciary duties, trust administrators are also expected to operate under certain principles.

A trust administrator shares openly how the trust is being managed with 2 of the beneficiaries.

Good Faith This means that the administrator must be honest, open and transparent in the way they manage the trust and in the ways they benefit from it. This is incredibly important as the beneficiaries have the right to sue the trust administrator if they fail to act in good faith.

Prudence/Fairness This requires that the administrator operates under these two principles. Fairness ensures the admin avoids playing favoritism amongst the beneficiaries. Prudence requires that the admin does not make risky investments with the trust which also has a hand in safeguarding the assets.

If you’ve been named a trust administrator, it’s normal to feel overwhelmed. There is so much information and it is a huge responsibility. Reaching out to an experienced estate planning lawyer can set you on the right path and prepare you for the duties ahead. Contact Lonich Patton Ehrlich Policastri for a free consultation.

An attorney sets up a revocable living trust with a client at their desk

What Is A Revocable Living Trust And Why Should You Have One?

January 8, 2020/in Estate Planning /by Michael Lonich

As the holidays approach, you might be thinking about family more. You want to take care of your loved ones, and while it’s a hard subject to discuss, you need to make sure everything is prepared when something happens to you. The holidays are a good time to put your affairs in order and make sure your estate is in place so that when that time comes, your family can get through the process as easily as possible. If you know anything about probate, you probably know how time-consuming and expensive it is. A revocable living trust creates the opportunity to avoid probate and is an amazing estate planning tool.

What Is A Revocable Living Trust?

So, what is a revocable living trust? A trust is an arrangement with a third party to hold assets that will eventually be passed to a beneficiary. A revocable living trust means that the stipulations of the trust can be changed while the trustor is living and capable, as their situation evolves.

Why Set Up A Living Trust?

A lawyer and client go over paperwork for setting up a revocable living trust

In estate planning, setting up a living trust is recommended for a common reason – to avoid probate. Probate is the lengthy court process in which the passing of assets are determined by a judge. It can take months to several years depending on the case.

Many people don’t even have wills, let alone trusts. Wills are important to putting your affairs in order, but they cannot avoid probate. For assets to pass through a will, you must die first – unlike a living trust – and all assets must go through probate whether you have a will or not. Living trusts are usually able to bypass the probate process altogether, saving your loved ones time and money.

If you live in San Jose or the greater Bay area, set up a free consultation with our estate planning attorneys to learn about living trusts.

How To Set Up A Revocable Trust?

There are a few steps that go into setting up a living trust. You must set up the trust while you are alive. You will need to work with an attorney to figure out the trust’s specifications such as who assets will pass to and how they must pass.

For example, you can create a joint living trust for yourself and your spouse. If one spouse dies, the assets will pass to the living spouse, and after their death, the assets will pass to whomever you name beneficiary next in line. You can stipulate that the assets or property only pass under certain conditions such as if your daughter graduates college. This allows you to control and protect your assets, even after your death.

An attorney hands over keys to a property that was listed in the revocable living trust to the beneficiary.

After you’ve worked with an estate planning attorney to put together a trust, you’ll have to fund the trust. This requires you to place property and assets in the name of the trust. Instead of the property being under the name “John Smith,” it will be titled “John Smith, Trustee of the John Smith Trust.” Forgetting to fund your trust can result in added expenses upon your death and a lengthy process to distribute assets in probate.

Living trusts aren’t right for every situation however, so you should consult with an experienced estate planning attorney before setting one up.

Live in San Jose or close by? Contact Lonich Patton Ehrlich Policastri to find out if a revocable living trust is right for you.

Free 30-Minute Family Law or Estate Planning Consultation

Full Name *

E-Mail *

Phone Number *

ZIP Code *

How would you like to be contacted? *

Message (summary of legal matter or reason for consultation) *

Which practice area are you interested in? *

Disclaimer: “I understand and agree that Lonich Patton Ehrlich Policastri will have no obligation to keep confidential the information I am now transmitting. By clicking “Accept & Submit,” I agree that Lonich Patton Ehrlich Policastri’s review of the information I am providing will not preclude the firm from representing another client, including one who is directly adverse to me. Additionally, I understand that this a free consultation only and that Lonich Patton Ehrlich Policastri are not my attorneys unless and until an Attorney/Client Agreement is signed and a retainer payment is submitted.” *

5 + 2 = ? Please prove that you are human by solving the equation *

Contact Us

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.

MAKE A PAYMENT BY SCANNING THE QR CODE BELOW:

DISCLAIMER

This web site is intended for informational purposes only and is not legal advice. Nothing in the site is to be considered as either creating an attorney-client relationship between the reader and Lonich Patton Ehrlich Policastri or as rendering of legal advice for any specific matter. Readers are responsible for obtaining such advice from their own legal counsel. No client or other reader should act or refrain from acting on the basis of any information contained in Lonich Patton Ehrlich Policastri Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.

About | Why LPEP | Contact | Blog