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Paternity Woes: Timing Matters

February 26, 2014/in Family Law /by Gretchen Boger

In Californian family law, there are a few important presumptions. Most have to do with marital property. However, one presumption is all about paternity. In California, a man is presumed to be the father of a child that is born to his wife during their marriage.* In a recent case, this presumption complicated matters for a man, his ex-girlfriend, and her new husband.

Victor and Mary were “romantically involved” when Mary became pregnant, although they never married. One month before she was due to deliver, however, Mary ended her relationship with Victor. After that, she acted fast. She married another man, Roger, before she had even delivered her baby. Shortly thereafter, her baby boy was born.

Due to the previously mentioned presumption, Roger was considered the baby’s father under California law. Mary and Roger, now married, took the baby into their home, and Roger treated the child as his son. Victor knew the baby was his, but he was not allowed to see his son.

After eight months, Victor filed a paternity suit stating that he was the biological child of Mary’s son. Unfortunately for Victor, Mary fought back, raising the presumption, and the trial court held that Victor did not have standing to claim paternity. His suit was dismissed.

Nevertheless, Victor appealed the trial court’s decision. The appellate court held that the presumption can be rebutted, especially where there is evidence that the child was not conceived during the mother’s current marriage. So, because Mary’s son was conceived well before she was married to Roger, Victor could rightfully file his paternity suit.

Although the trial court’s decision was overturned, Victor is still the boy’s presumed father. However, now Victor will have a chance to prove that he also deserves to be in the boy’s life because of their biological ties. Sadly, more litigation is on the horizon for these parties.

Paternity cases can be dramatic and complicated. If you find yourself in a difficult paternity situation, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

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.

*See California Family Code § 7611.

What is Probate and Why Should I Avoid It?

February 21, 2014/in Estate Planning, Probate /by Michael Lonich

Probate is a court process that is known for being time-consuming and expensive. It is also a public process that makes personal information about your assets and debts part of the public record. If you die without a will, the probate process can be a nightmare for your family. However, even if you have a well-written will, the probate court still must oversee the payment of your debts and distribution of your property. These are just a few of the reasons why many people want to avoid sending the estate, and oftentimes their family, through the probate process after their death.

To avoid the probate system entirely, you will need to use an estate planning vehicle other than a will to transfer property after your death. For example:

Life insurance: Life insurance policies generally pass outside of probate as long as there is at least one named beneficiary.
Retirement accounts: Similarly, retirement accounts, including IRAs and 401(k) plans, pass outside of probate as long as there is at least one named beneficiary.
Joint tenancy real property: If you own a home with your spouse (or any other individual) as joint tenants with right of survivorship (as opposed to tenants in common), your ownership interest will be “extinguished” upon your death and the remaining owner will own the property outright as a matter of law.
Joint tenancy bank accounts: Bank accounts may also be held in joint tenancy so that when one spouse (or account holder) dies, the other spouse (or account holder) is automatically the sole owner of the account.
Pay-on-death accounts: Selecting a pay-on-death beneficiary for bank accounts or investment accounts allows you to designate who your accounts will be transferred to upon your death without the need for probate.
Trusts: A living trust is a legal document that, much like a will, contains instructions for what you want to happen to your property when you die. But, unlike a will, a living trust can avoid probate at your death. While you place your property and assets (i.e., your family home) in the trust, you maintain control over all trust assets during your lifetime. When you are no longer alive, your property can be transferred to your designated beneficiaries in a timely manner without going through probate.

Trusts are a favorite of estate planners because they are simple, flexible and effective. Trusts can be used to easily transfer property to family members or charitable organizations at death. In some circumstances, trusts can also be utilized to decrease or minimize estate taxes.

If you would like to learn more about trusts or avoiding probate in general, call Lonich Patton Erlich Policastri to schedule a free half-hour consultation. Our attorneys are passionate about estate planning and have decades of experience handling complex estate planning matters, including wills and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information.

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 Keep the Family Baggage Out of the Family Business

February 20, 2014/in Business Law, Estate Planning /by Michael Lonich

Family businesses are often the pride and joy of the entrepreneurs who created them – especially if the business has flourished and has been passed down for multiple generations. However, no matter how successful a company is or how many generations it has survived, conflicts can significantly undermine the company’s continued success. Some of the reasons many family businesses run into conflict are over:

Company Resources: Money, money, money. Historically heralded as the root of all evil, money is often at the root of all family business troubles. Resources are limited and folks must be compensated, leaving plenty of opportunity to squabble over nickels and dimes.
Company Strategy: Strategy is a substantial part of running a successful business. Without a similar outlook with regard to strategy, the business will remain at a standstill. Sometimes, discussions regarding strategy will cause disputes because one family member may believe that Strategy A is the best course of business, whereas another family member vehemently believes that Strategy B is far superior.
Company Values: Often times, interests and values will change over time, and family members from different generations will value different aspects of the business. Family members running a family business must have the same outlook for the company and aim to reach the same goals. Otherwise, the business will remain stagnant until these differences are resolved.
Company Rivalry: Just like sibling rivalry is very real, so are rivalries within a family business – so much so that the best interests of a company can take a backseat to upstaging a competing family member.

So with all these possible issues of contention, how can a family successfully run a family business without the family baggage? Here are some options to consider implementing:

Appoint independent directors: Having independent directors will ensure that someone with an objective perspective is monitoring the family and offsetting any improper family influences. The family will monitor management, and this independent third party will monitor the family.
Hold regular family meetings: Don’t wait for issues to arise before scheduling a meeting – have them regularly and in taking such preventative measures, perhaps some conflicts can be avoided altogether. Specifically include shareholder sand those who influence the decision-makers.
Evaluate performances: By evaluating performances, the business can have an objective look at how employees are performing (or not performing). This ensures that employees are promoted and compensated not for their familial relationships, but for their commendable performance.
Talk to a professional: Have a professional evaluate your family business – perhaps they can help your family build a business succession plan and help resolve other issues involved in your family business.

Business succession planning is a highly complex area of law. If you have any questions regarding your family-owned business, please contact the experienced business attorneys at Lonich Patton Erlich Policastri for further information. The attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex business succession matters and we are happy to offer you a free consultation.

Source: http://www.bizactions.com/n.cfm/page/e110/key/254350972G1005J3585631N0P43P2122T3/

Wise Beyond His Years: Paul Walker’s Estate Plan

February 13, 2014/in Estate Planning, Probate /by Michael Lonich

Paul Walker was not known for being one of the more prolific or intelligent actors of his era. Even so, the young actor made some sharp estate planning decisions during his short life, probably due to top-notch legal advice. Even so, his estate plan could have been better. Regardless of whether your estate is anything like Paul Walker’s $25 million estate, there are some great lessons* to be learned from Mr. Walker’s estate plan.

The Good

Paul Walker died at the much-too-young age of 40. However, he was smart and recognized that even young people need estate plans. Walker signed his will at 28 years old—an age when most young men still believe they are invincible. He should be commended for taking control of his future for the benefit of his loved ones. Walker realized that accidents happen, and he was prepared. You should do the same.

Walker was survived by his 15-year-old daughter, Meadow, and he privately provided for her future with a trust. Unlike a will that must be processed through the state court system, trusts are completely private and avoid the onerous probate process. Trusts are relatively easy to create, are protected from public scrutiny, and most importantly, can help your loved ones get the assets they need much faster than in the case of a will.

The Bad

Although it is great that Walker named a guardian for his minor child (he named Meadow’s grandmother—his mother), he should have updated his choice with the passage of time. In 2001, his mother was 13 years younger and probably the most appropriate option. However, today, a younger family member could have been a better option in the event that his mother was not up to the task or physically incapable of being Meadow’s guardian.

Walker had both a will and a trust, which was smart at the time. Nevertheless, when he first created those documents, Fast and Furious had not become the monstrous success it is today. His financial picture has changed and his estate planning documents should have reflected those changes. Over a decade ago, he probably had no idea how much money he would be leaving his daughter; he couldn’t have. Furthermore, Walker’s estate will have to cover significant tax obligations before his beneficiaries receive their share; this obligation could have been avoided or reduced with some creative estate planning and trust creation.

The Ugly

Walker’s long-time girlfriend, the woman he reportedly wanted to marry, was apparently left with nothing. Boyfriends and girlfriends have no legal relief in this sad scenario, and it happens far too often. It goes without saying that Walker would have wanted to take care of his girlfriend for the rest of her life. However, since he failed to update his estate plan, she probably will not receive a penny.

You should consider your estate plan to be a living and breathing document; when your life changes, your estate planning documents should change along with it. This is why having a great relationship with a reputable estate planning attorney is so important. If you are interested in creating an estate plan or have any questions regarding your current estate plan, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. The attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex estate planning matters, including living wills and trusts, and we are happy to offer you a free consultation.

*Post inspired by: Danielle and Andrew Mayoras, “Five Estate Planning Lessons From The Paul Walker Estate,” from Trial and Heirs: The Legacy Experts. Find the original article here: http://trialandheirs.com/blog/celebrities/paul-walker-estate-good-estate-planning-lessons

Valentine’s Day Causes 40% to Consider Divorce

February 13, 2014/in Family Law /by Mitchell Ehrlich

Valentine’s Day, the nationally recognized day of love, is right around the corner. However, for some of us this year, Cupid’s arrow will strike with thoughts of divorce instead of romance. In fact, the number of consumers seeking information about divorce will increase more than 40% around Valentine’s Day. So why are so many individuals exploring the possibility of divorce around this time of the year?

Philadelphia divorce attorney Jennifer Brandt explains that this phenomenon occurs because Valentine’s Day “forces us to assess our romantic relationships […]. Many people realize that they are not happy in the situation they are in and there is no possibility of it improving. Thus, they may turn toward divorce to get a fresh start.” Edward Weinstein, a New Jersey divorce attorney, offers a similar explanation: “My theory is that when you have these kinds of sentimental holidays, people start saying, ‘I deserve to be happy.’”

Avvo.com, one of the world’s largest online legal forums, also recently conducted studies that show the number of consumers seeking information about divorce escalates around Valentine’s Day. Leigh McMilllan, vice president of marketing with Avvo, states that the spike is so consistent and so prominent that researchers are coining this increase in divorce searches as the “Valentine’s Effect.” Avvo has consistently seen a large increase in the number of people searching for information on divorce around Valentine’s Day for the past four years. Women comprise of a majority of the searches (67%) and the big cities are hit the hardest – Los Angeles, Houston, Chicago, Phoenix, and Dallas lead the country in the number of people searching online for a divorce lawyer.

If you are considering divorce or have questions about divorce planning, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization). Our attorneys have decades of experience handling complex family law proceedings and offer a free consultation.

Sources: http://www.mainstreet.com/article/family/marriage/divorce/valentines-effect-causes-40-explore-divorce?page=1; http://jamiat.org.za/blog/valentines-day-causes-a-peak-in-number-of-divorces-research-2/

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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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