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Posted by on in Estate Planning

b2ap3_thumbnail_guardianship-estate-planning-child-adult.jpgIn a perfect world, every child would be raised by loving parents, have everything they need, and grow up to be successful adults. However, this is real life and, unfortunately, it can throw us some unexpected twists. Sometimes, those events leave parents unable to provide for their child, temporarily or even long-term. For these cases, the courts may grant guardianship responsibilities to capable and consulting adults. Guardianship is a court order to have a person other than the child’s biological parent take custody of the child as well as the child’s estate.

In the event that a parent becomes ill, incapacitated, or otherwise unable to care for their child, the courts will name a guardian to take over care of a child. Generally, this is someone in the child’s immediate family such as a grandparent, aunt, or uncle. However, anyone who shows an interest in the child’s welfare may be appointed a guardian. 

Guardianship is not adoption. If the biological parent is living, this does not take away their parental rights, and it is not necessarily a permanent solution. It is entirely reasonable to assume that one day the parents can resume full responsibility again.

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Posted by on in Probate

b2ap3_thumbnail_money-debt-cash-inheritance.jpgWhen a loved one passes away, many left behind are conscious of the physical possessions and the money that will need to be distributed. While all of this is something that needs to be done, one large looming issue is any debt that remains. Where does the debt go? Who is responsible? The probate process begins, and loved ones are not only left with the loss but also with creditors demanding payment.

Upon on individual's death, his or her assets and finances are distributed. This may be done by an administrator that is named by the will of the deceased. If there is not a will or an administrator is not appointed, then the courts will take over the estate. This is a process known as probate. During this process, which can take anywhere between nine months and a year and a half in the state of California, the following occurs:

  • Validity of a will is confirmed,
  • Property is transferred, and
  • Financial responsibilities are assigned.

Once an individual has passed away, they are no longer able to pay creditors. However, that does not mean that the creditors will not continue to collect. If you are a joint owner on any accounts, you are still fully responsible for this debt. This includes a credit account or a loan such as for a car or a mortgage. The loan fully transfers to your name and will remain a part of your credit, good or bad. For this reason, among others, one must be careful when they co-sign for a loan or a line of credit.

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Posted by on in Child Support

b2ap3_thumbnail_child-support-laws--money.jpgOnce ordered, child support payments are usually required until the child is no longer a minor, becomes active-duty military, is adopted, or the child is emancipated. For many cases, this is nearly 18 years of payments. Yet, a lot can happen from year to year, let alone in 18 years. People lose jobs, gain employment, and get promoted. There are many other life changes that can alter the need for support as well, including medical issues, a new spouse, and a change in disposable income. Therefore, it is very likely that in the duration of child support payments, the amount may need to be adjusted.

Child support is automatically stopped under certain circumstances. If it is are not, you are able to request a credit for the time payments were supposed to be stopped without going to court. This is traditionally true if you are working with a local child support agency. Generally, a temporary stop of payments occurs if you are in jail, prison, or involuntarily institutionalized for more than 90 consecutive days. They are only stopped AFTER the 90 days; therefore, the first 90 days are still due.

The easiest way to change your child support arrangement is through a mutual agreement. If you and the other parent are able to reach a compromise that works best for the child, a significant amount of legal work and court time can be avoided. This agreement should be in writing to protect everyone involved. Next, a judge needs to approve the agreement. Without a judge's signature, the existing court order and required support payment will not be changed.

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Posted by on in Probate

b2ap3_thumbnail_will-estate-planning-probate-law.jpgMany people come to us wanting to create a will and trust. Yet, many are not aware that these two documents cover two different areas. While both specify what is to be done with your possessions, the timing and the execution of the documents wishes are not the same. However, both are highly useful documents that are essential to estate planning and many prefer to have both. While both a will and a trust distribute property as you deem fit that is nearly all they have in common.

Timing

A will is a document that is created in order to distribute property at the death of the individual. It only takes effect after death and the terms are executed by a legal representative. A trust is effective as soon as it is created, at death, or afterwards (should it be beneficial). It is executed by a trustee. The trustee can be an individual as well as a company, bank, or law firm. 

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Posted by on in Family Law

b2ap3_thumbnail_father-son-parent-child.jpgThere are many benefits to being a parent for everyone involved. Proving your parentage can be extremely beneficial especially to a child. Not only is it emotionally stabilizing for them to know who both of their parents are, but down the road it may also be valuable financially and medically, for reasons that you may not even be aware of at this time. For an adult to claim parentage, it is an emotionally charged event that will forever legally bind that person with the child. It can also show an unsurpassable amount of love for that child and grant you rights to that child that no one can revoke, so long as you take care of your responsibilities as well.

Responsibilities and Rewards

While children are not born with an instruction manual, there are certain responsibilities that the court bestows upon parents, that if they are not being cared for, parental rights may be revoked. These responsibilities include but are not limited to:

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Posted by on in Estate Planning

b2ap3_thumbnail_doctor-stethoscope-medical-professional.jpgIf you have ever undergone any anesthesia or major medical treatment, you know that physicians nearly always ask, “Do you have an advance directive?” In January 2014, a study was published in the American Journal of Preventative Medicine in which of over 7,900 participants, only a mere 26.9% had an advance directive. The reasoning: lack of information and educated knowledge on the subject. Many believe it to be a “do not resuscitate” order (or DNR), which certainly is a portion of it. However, an advance directive provides a large wealth of information about your wishes when you are unable to speak for yourself.

What exactly is an advance directive? It is known by many names: living will, personal directive, advance healthcare directive, or advance decision to name a few.  To the point, it is a document that explains to others (your family, loved ones, and physicians) what your wishes are in the event that you are unable to speak for yourself. By the time we reach retirement age, most of us have thought about what we want to happen when we pass away.

However, what if you are unconscious? Do you want to have feeding tubes? What about dialysis and breathing machines? These are the sort of issues an advance directive can solve in an emergency, when your loved ones are worried enough about you as it is. It takes a great deal of pressure off of those you care most about. It also must be pointed out that it is NEVER too early to create one of these. Unfortunate events happen every single day. As the old adage says, “It is better to be safe than sorry.”

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Posted by on in Estate Planning

trust, trustee, San Jose estate planning lawyerTrusts can be extremely effective estate planning tools for many reasons. However, in order to be successful, the trust must be properly created and then properly administered by the trustee. A trustee will have many responsibilities after your death, including managing the property held in the trust and distributing that property in accordance with your instructions.

Administering a trust can be a complex and time-consuming job and you want to make sure the person you choose as trustee has the time and ability to do so. A trustee has a fiduciary duty to the beneficiaries of the trust. This means that all of the trustee’s actions must be in the best interests of the beneficiaries, must be impartial, and must not be self-serving. You want to always choose someone who you believe has the ability to follow the trust instructions objectively and without bias, especially if your trust is set up to care for young children or family members with special needs.

Some qualities to look for in a trustee can include:

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b2ap3_thumbnail_child-custody-parental-responsibility.jpgChild custody battles in divorce or parentage cases can be difficult, though these cases will generally result in the child being placed in the custody of one or both parents. Custody questions can be entirely different, however, if the case arises due to the death or disappearance of the natural parents. In some situations, the fate of the child may be relatively clear while, in others, the California family law courts may be involved in making the determination of who will raise the child. In either situation, any concerned family members should discuss the situation with an experienced family law attorney as soon as possible.

When One or Both Parents Die

When two parents are divorced or unmarried and the primary custodial parent dies, the other parent will likely get custody of the child, though they must file a custody petition with the family courts. Generally speaking, the court will grant custody in this situation unless they determine the living parent is not fit to care for the child. Reasons for a finding of unfitness may include history of violence, substance abuse, or previous abandonment.

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b2ap3_thumbnail_elder-financial-abuse-probate.jpgIn most situations, when a loved one dies and their will is submitted to probate, the will is found to be valid with few concerns. However, in some cases, some of the provisions of the will or the contents of the estate may raise concerns. One concern may be that the deceased individual was the victim of financial elder abuse.

What Is Financial Elder Abuse?

Financial elder abuse occurs when a person uses fraud, coercion, or other tactics to wrongfully obtain money or property from an elderly individual. According to a study published in 2009, such financial abuse of the elderly resulted in an estimated $2.9 billion of losses on an annual basis, not including cases that were not reported or discovered. Furthermore, the National Center on Elder Abuse (NCEA) indicates that instances of financial elder abuse are reported more often than other types of elder abuse, including neglect or physical, emotional, or sexual abuse.

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b2ap3_thumbnail_planning-future-probate-estate-trust.jpgMany people come to our office inquiring about whether creating a trust may be appropriate in their situation and what benefit it may provide in estate planning. While it is commonly understood that a trust can be a useful estate planning tool, many people who are unfamiliar with probate law are unfamiliar with what a trust actually is and how it is created. It is important to understand both the basics and specifics of creating a trust, and how an attorney can assist you throughout the entirety of the estate planning process.

What is a Trust?

A trust is a legal relationship in which one party holds legal title to assets for the benefit of another. The parties to basic trust are as follows:

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embryos, divorce, California divorce attorney Divorce can have many different unique issues that arise. While some couples must divide property and decide on child custody arrangements, others may need to address what to do with pets, debts, business interest, or other issues specific to their particular situation. One California couple recently had a legal dispute regarding what should happen to embryos that they had saved.

The couple saved embryos when the wife was diagnosed with cancer, according to reports, as her treatment would make it risky for her to have children in the future. The couple allegedly signed an agreement that they would destroy the unused embryos in the event of a divorce. However, the wife sought to have the agreement discarded so that she could save the embryos and, with them, possibly her only chance at having a biological child.

Court Ruling 

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Posted by on in Estate Planning

common mistakes, estate planning, San Jose estate planning attorneyIt is important to realize the common mistakes in estate planning. Even if you have a plan, it may not be comprehensive or you may be able to lead friends or family in the right direction when it comes to estate planning. A skilled attorney can assist you in the estate planning process and can help ensure you do not make any of these mistakes.

Not Having an Estate Plan at All -- If you suddenly pass away without any type of estate plan in place, any property you own will be distributed in accordance with California’s intestacy laws. While intestacy laws may sometimes dispose of your property in a favorable manner, this is not always the case. For example, if you have a partner to whom you are not married, they will likely get nothing as the law does not provide for individuals who are not related by blood or marriage. This is only one of many issues that can arise if you die without an estate plan.

Not Planning for Possible Incapacitation -- While no one wants to think about becoming mentally or physically incapacitated, it is important to name someone who will make decisions for you should that be the case. Naming powers of attorney for both healthcare and financial decisions will ensure that your affairs are properly managed in line with your wishes if you become severely ill or injured.

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Posted by on in Probate

probate planning, large estates, San Jose probate attorneyThe probate process can vary widely depending on many factors--one of which is the size of the estate in question. For example, many estates worth less than $150,000 do not have to be distributed in court, as there is a simplified probate procedure in California. However, probate is not as simple or beneficial in cases of estates with a high net worth. Often, the process can be extensive and the estate can be diminished significantly due to taxes and other costs, especially if there is any conflict or legal disputes between beneficiaries. Additionally, the property and assets of your estate will become public record.

If you have worked your entire life to earn your living, have invested your earnings wisely, and have therefore amassed substantial wealth for your family, you want that wealth to go to your family and any other intended beneficiaries. For this reason, it is important to carefully plan ahead to avoid the potentially negative effects of probate.

Avoiding Probate with Skillful Planning

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moving, relocation, San Jose family law attorneyChild custody and visitation can be one of the most important and sensitive issues in a divorce. In most situations, both parents wish to continue meaningful relationships with their child though they now must design a plan to share time and decision-making responsibilities with their ex-spouse. If they cannot agree, the court will decide the best arrangement under California law and, once the court issues an order for a custody and visitation arrangement, both parents are expected to abide by that order or face potential penalties.

Many circumstances can arise, however, that can cause the initial custody arrangement to no longer be feasible. One such circumstance is the need for the primary custodial parent to relocate to a different city or state. Parents may need to relocate for many different reasons including a new job, lower cost of living, to help care for or be closer to family members, and more. No matter what your reason may be for moving, it is only natural that you would want to take your child with you when you move away.

Steps to Take Before You Can Move

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conservator, conservatorship, San Jose estate planning attorneyIf a loved becomes unable to take care of themselves due to physical or mental illness or disability, there may arise the need to seek a conservatorship for that individual. While no one wants to forcibly step in and take control of another person’s affairs, however, if someone is unable to make appropriate decisions or recognize their challenges, it is often the best move to take action and protect them from financial loss or physical harm. You do not have the legal right to simply take over their affairs without permission, as California law sets out strict procedures to establish a conservatorship.

Conservators do not have the unchecked ability to simply handle an incapacitated individual’s matters any way they so choose. Instead, along with their decision-making powers comes certain legal duties, as well.

Powers and Duties

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Posted by on in Probate

probate, probate law, San Jose Probate attorneyAs the executor of a will and an estate, you may wonder whether you need to immediately pick up the phone and hire a probate attorney. As in any type of legal case, you have the right to represent yourself in probate court and you are not required to hire an attorney to help you throughout the process. However, it is wise to have experienced probate lawyer helping with a probate case for a variety of reasons.

Probate Can Be Time-Consuming and Burdensome

As an executor, you have many different duties, including taking inventory of the estate, managing the bills and taxes of the estate during probate, identifying beneficiaries, defending against legal claims, distributing property, and more. This can all take a substantial amount of time and may be difficult if you have a job, family, or other obligations. Additionally, if you do not prepare or submit the proper documentation at certain points in the case, the case may be continued multiple times, which can draw out the process even more.

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social media, divorce, San Jose Divorce LawyerThe end of a long-term relationship can cause people to act in ways that they normally may not. This is particularly true in situations in which a person has felt that their living situation or relationship has been keeping them from living the lifestyle that they would like. Undoubtedly, divorce can be an emotionally trying time, and people can react to emotional stress in a wide variety of ways.

The massive popularity of social media sites such as Facebook and Twitter and the culture of sharing personal information they have fostered has created certain risks for people who are going through a divorce. When people share posts that may paint them in a disparaging or irresponsible light, a court may take notice and base important decisions on an incorrect impression. For this reason, it is important for people who are going through a divorce to be extremely careful about the things they post on the Internet.

Social Media Use and Child Custody Determination

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b2ap3_thumbnail_estate-planning-awareness-san-jose-lawyer.jpgMany people are under the mistaken impression that professional estate planning services are only necessary for wealthy individuals and families that have millions of dollars to pass on to the next generation. In fact, these same people may be surprised to learn that they, in fact, possess an estate. An estate is simply the aggregate of the assets that a person owns. Therefore, if you have a home, car, bank account, or any personal property you are a person who could benefit from estate planning. As a result, even people who have not yet accumulated significant assets can benefit from meeting with an estate planning lawyer.

Don’t hesitate to contact a skilled San Jose estate planning lawyer at the Manassau Law Offices, P.C. if you have specific questions about estate planning or you need immediate legal assistance.

An Estate Planning Attorney Can Help You Make Decisions

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b2ap3_thumbnail_child-custody-divorce-san-jose.jpgWhen deciding on child custody questions, California family courts start with the presumption that both parents have equal rights to custody and that shared custody will benefit the child. However, the court can then examine many factors to determine if shared custody is, in fact, in the best interests of the child.

The court may take into account virtually any concern that it deems relevant to the proceedings and the child's well-being. Some of the factors considered under California custody law include:

  • The safety and health of the child, including whether one parent has a history of violence, crime, or alcohol or illegal drug abuse;
  • The child’s preference of where they want to live, if the child is mature enough to understand the situation and make a decision;
  • Whether each parent will encourage a healthy and ongoing relationship between the child and the other parent or whether one parent may attempt to interfere with the other parent’s contact and relationship with the child;
  • Whether each parent has the willingness and ability to provide a continuous and stable environment for the child; and
  • The geographic location of the home of each parent and the location of the child’s siblings.

Agreeing To A Custody And Visitation Arrangement

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b2ap3_thumbnail_estate-planning-general-tools.jpgEstate planning is most often associated with drafting a last will and testament to set out how you want your estate to be distributed after your death. While a will is an important document in estate planning, it is often not enough to cover all of the issues that you may need address in your estate plan.

The following are only some of the other tools that may be right for your situation:

  • Living trust -- This is an arrangement under California law in which you transfer assets and property to the ownership of the trust and select a trustee to manage the property after your death. Trusts have many benefits, including potentially protecting your assets from creditors, avoiding the probate process, and setting out specific instructions and conditions for distributions to beneficiaries, if you so wish.
  • Durable power of attorney, healthcare power of attorney, and advanced healthcare directive -- Not all estate planning addresses what happens after your death, as many documents may set out instructions if you should become incapacitated while you are still alive. If you suffer an injury or illness that renders you incapable of making decisions and managing your affairs, your chosen durable power of attorney will handle your finances and business while a medical power of attorney will make decisions for your health care and physical well-being in accordance with your instructions set out in your advanced healthcare directive.
  • Arrangement for your business -- If you are a business owner, you should have agreements in place that instructs what will happen to your business interests after your death. Buy/sell agreements and similar documents are valuable in this situation, as are different insurance policies and funding sources to protect your hard-earned business assets and your family.

The above represent just a few examples of important estate planning tools that can be used in addition to a last will and testament. The California laws regarding trusts, business succession, and other important estate planning issues can be complicated, so the assistance of a qualified attorney is imperative when designing your comprehensive estate plan.

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