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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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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.
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.