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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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Court of Appeal Clarifies Seven-Day Waiting Period for Premarital Agreements
/in Family Law /by Mitchell EhrlichCalifornia Family Code §1615 outlines the factors a court will consider when deciding whether to enforce a premarital agreement. If the court finds that, among other reasons, the agreement was not executed voluntarily or if the agreement was unconscionable (a fancy word for unreasonable), it will void a premarital agreement.
Section 1615(c) states that a premarital agreement will not be deemed voluntary unless the court makes three findings; one of them being that the party against whom enforcement is sought had not less than seven calendar days between the time the party was first presented with the agreement and advised to obtain a lawyer and the time the agreement was signed. The question most recently before the First Appellate Court was whether section 1615(c)(2) applied to a party who was represented by an attorney from the outset.
In Marriage of Cadwell-Faso & Faso, 191 Cal. App. 4th 945 (2011), husband (H) and wife (W) married in 2006. H was a wealthy, retired businessperson and W owned and operated her own business. Prior to their marriage, H’s attorney drafted a premarital agreement and presented it to W and advised her to seek independent counsel. W was unhappy with the agreement and her attorney subsequently drafted four separate addenda to which H disagreed. W faxed a goodbye letter to H following their inability to come to an agreement. Following further discussion, W’s attorney drafted a fifth addendum and faxed it to H. Six days later, H and W signed the agreement and were married
Eighteen months later, H and W sought dissolution of marriage. H asked the court to void the fifth addendum because he did not have seven days between the time of representation and execution and the agreement was thus involuntary per §1615(c)(2). The trial court ruled in H’s favor, finding that the requirements of §1615(c) were mandatory and the addendum was thus invalid. W appealed and the appellate court reversed. In its decision, the court could not determine from the text of the statute alone whether the seven-day rule was confined to unrepresented parties. Therefore, the court looked to the legislative history of §1615 and found that the legislature was concerned with situations where one party was not represented by counsel, not where counsel has been present from the start. The appellate court thus held that both the premarital agreement and the addendum were enforceable against H where he was represented by counsel throughout the premarital agreement process.
The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling premarital agreements. If you are contemplating marriage, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
Executing an Estate: A Blessing or a Curse?
/in Estate Planning /by Michael LonichFriends or family come into the role as the executor of an estate in different ways. Some are asked by a friend or family member and are honored to have been considered. Some find out they were designated as the executor only after that person’s passing. Some step up to the plate amidst grief and sorrow while other surviving relatives mourn their painful loss. Regardless, executing an estate is not an easy task; there are legal, and often times personal, repercussions if something goes wrong.
According to a recent Wall Street Journal article, “executorships gone bad” are rising. There are a number of possible reasons for this increase but tough economic times may be the driving force. As families struggle economically, disagreements over shares of inheritances or interpretations of wills are occurring more often. This adds to the heavy burden already placed on executors of an estate.
An executor administers a will through the probate court process which can take years (if the decedent created a trust during their lifetime, this significantly simplifies the process for an executor). The probate process includes accounting for assets, paying outstanding bills, and distributing property as indicated by the decedent’s will. Depending on a number of factors, the probate process can take as long as three years for larger, more complex or contested estates. While not impossible for a nonprofessional to handle, it is generally worthwhile for complex wills to be handled by a professional to avoid mistakes and contentious dealings between the executor and other family members.
If you are interested in learning more about the probate process or creating a plan to ensure your family members are well-prepared to handle your estate, please 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 include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship
Despite Mandated Reporting Laws, Financial Institutions are not Subject to Civil Liability
/in Estate Planning /by Michael LonichThe elderly population in the United States has steadily been on the rise. Between 1900 and 1996, the population of elders grew from 3 million to 34 million. As the “baby boomer” generation begins to retire, our society will need to make several adjustments. While the first thing that comes to mind when discussing the elderly may be programs such as social security or healthcare, the laws applicable to elders deserve some attention as well.
The California Welfare Code includes sections on who is required to report signs of physical or financial elder abuse to Adult Protective Services or the local law enforcement agency. Included in that law are nursing home workers, healthcare practitioners, ombudsmen, and members of the clergy. The law also deems all officers and employees of financial institutions mandated reporters of suspected financial elder abuse. Recently, a California Appellate Court decided whether the mandated reporting requirement for financial institutions could serve as a legal basis for civil liability.
In Das v. Bank of America, N.A., 186 Cal. App. 4th 727 (2010), Mr. Das’ (the deceased) daughter filed several suits against Bank of America for allowing her father—who suffered from strokes, brain tumors, and dementia—to make a series of transfers overseas totaling over $300,000. She claimed her father’s lack of capacity was readily apparent to casual observers and that bank employees even “wondered” about his state of mind, but did not report Mr. Das’ strange behavior despite the suspicious nature of his transactions. The Second Appellate District, however, found that the legislative intent of the section on mandated reporting for financial institutions was explicitly limited to the government and negates any intent to enlarge the legal basis for a private civil action. Accordingly, they were unable to expand the application of the law despite the egregious circumstances.
There are many ways to protected loved ones from financial elder abuse including conservatorships and financial powers of attorney. If you are interested in learning about how you might be able to protect a loved one from financial abuse, contact the San Jose estate planning attorneys at Lonich Patton Erlich Policastri, LLP. 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.
Testamentary versus Inter Vivos Trusts
/1 Comment/in Estate Planning /by Michael LonichA trust is an arrangement where property is transferred with the intent that it be held and administered by the person to whom the benefit is for. There is a large assortment of trust types, however, the two main types of trusts are (1) the inter vivos trust and (2) the testamentary trust. The inter vivos trust, often referred to as a living trust, refers to a trust transfer made during one’s lifetime. The testamentary trust, on the other hand, only arises upon one’s death—typically specified in one’s will.
An inter vivos trust is created by a settlor and signed by the settlor and any named trustees. It is created and funded during one’s life time and may be revocable or irrevocable. A testamentary trust is usually created in the will of a settlor and must be probated. Testamentary trusts are irrevocable as they are created after one’s death and, therefore, cannot be amended or revoked. Inter vivos trusts generally do not have to go through probate and are created primarily to provide an economic benefit to specific people or institutions. Payments to the beneficiaries can begin immediately during one’s lifetime or upon death as specified.
Whether an inter vivos trust or a testamentary trust is the better plan depends on the settlors’ objectives. Inter vivos trusts are an effective way to reduce the value of an estate and the subsequent effect of federal and state estate taxes. Testamentary trusts can provide for the care of beneficiaries without the need for a public trustee/guardian upon death.
If you are interested in discussing your estate, creating a trust, or creating a comprehensive estate plan, contact the San Jose estate planning attorneys at Lonich Patton Erlich Policastri, LLP. 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.
Spendthrift Clauses: Protecting Your Loved Ones’ Inheritances
/in Estate Planning /by Michael LonichMost people consider the protection of their assets from their own creditors when beginning to plan for their estate. However, few consider the prospect of their heirs’ creditors. Adding spendthrift language to a trust may help safeguard their heirs’ assets.
A variety of trusts can be spendthrift trusts as long as a spendthrift clause is included. Despite its name, a spendthrift trust does not simply protect heirs from being recklessly extravagant or wasteful in their use of funds. Spendthrift clauses restrict a beneficiary’s ability to assign or transfer his or her interest in the trust and restrict the rights of creditors to reach the trust assets. If your child gets divorced, it can prevent your child’s spouse from claiming a share of the trust property. If your child predeceases his or her spouse, it can ensure that your children or grandchildren receive their inheritance rather than your spouse. A properly designed spendthrift trust can even protect your heirs’ assets from being attacked by frivolous lawsuits, dishonest business partners, or unscrupulous creditors.
There are, however, some limitations. Government agencies may be able to reach the trust assets, regardless of spendthrift language, to satisfy something like a tax obligation. Further, ex-spouses may be able to reach the trust assets to satisfy child support arrearages. Generally, the more discretion granted to the trustee the greater the protection against creditors’ claims.
If you are interested in learning more about spendthrift trusts or creating an estate plan, contact the San Jose estate planning attorneys at Lonich Patton Erlich Policastri, LLP. 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.