Blog - Vacaville Attorney

3 Simple Steps to Get Started on Estate Planning

If you are a senior, you may be feeling the urgency to get your affairs in order, but you may not have the time or the energy to take big steps. This article will provide a small checklist on ways you can get started that do not require a lot of time or preparation.

Beneficiaries

One relatively easy first step to take is to get your beneficiaries updated and designated. If you have had these accounts for a long time, you may not have the right people or all the people that you want on these records.

Checking and savings accounts at each bank
IRA accounts
401K accounts
Life insurance policies

Advance Healthcare Directive

You have the right to give instructions about your own healthcare or to name someone else to make healthcare decisions for you. You can also express your wishes regarding donation of organs. The Office of the Attorney General for California has provided a form as a helpful resource to help you. You can find the Advance Healthcare Directive form here: https://oag.ca.gov/sites/all/files/agweb/pdfs/consumers/ProbateCodeAdvancedHealthCareDirectiveForm-fillable.pdf

Consult with an Attorney

If you are serious about estate planning, an effective step would be to set up an initial consultation with an attorney who has experience in estate planning. You can go in without any preparation and your attorney can guide you in what you need to think about and do. These are some areas of estate planning that may be discussed:

A Living Trust
Powers of Attorney for Property and Healthcare
HIPAA Authorization
A Living Will/Advance Healthcare Directive
A Pour-Over Will
Deeds to Your Properties
Beneficiary Designations
Guardian Nominations for Minor Children

Consult with the Law Office of David Knecht

For a consult with a knowledgeable and professional attorney about your questions relating to estate planning, do not hesitate to reach out tot he attorneys at the Law Office of David Knecht. We have extensive experience in estate planning and we will help you understand what needs to be done and how to do it. Contact us at 707-451-4502 for more information.

Filed Under: Estate Planning, Estates

Resources to Help in Divorce in California

Many parents are looking for online resources to help themselves or their children cope with the changes in the family that happen with divorce. The California Courts in collaboration with other have created a website with information to help parents, kids and teens deal with divorce. This article will summarize some of the helpful sections, and the full site can be found here: www.familieschange.ca.gov

Dealing with Change.

If you are looking for information about parenting responsibilities, children’s rights and responsibilities, what changes to expect, parenting strategies, keeping the kids out of the conflict or even abuse in the home, this section will provide helpful resources. Go to www.familieschange.cal. gov/en/parents/dealing-change

Feelings and Emotions.

This section provides resources to help your children process the gamut of feelings and emotions during and after divorce or separation. It describes how your children may feel, gives suggestions on how to create an environment that allows children to experience and express emotions, gives guidance on identifying feelings, and suggestions for problem solving and dealing with behavioral changes in children. Go to www.familieschange.ca.gov/en/parents/feelings-and-emotions

Telling the Children

One of most difficult aspects of divorce or separation can be telling the children about the impending changes. This is a crucial step that will influence how your children will feel about the situation. The site recommends planning out the discussion with your ex-spouse so that if possible, you can agree on how to deliver the news, anticipate questions, address concerns, and make the discussion as calm and positive as possible. This section has detailed information on questions such as how to explain why parents separate, how to keep lines of communication open and how to talk to teachers, coaches and extended family. Go to www.familieschange.ca.gov/en/parents/telling-children

Child Support

Child Support is one of the first things parents should think about when they separate. It is the amount of money that a court orders a parent or both parents to pay each month to help pay for the support of the child (or children) and their living expenses. California’s child support law is based on the principle that even though parents may separate or divorce, children are entitled to the financial support of both parents. This section has information on child support responsibilities, guidance on how to figure out what a parent should expect to pay or receive, information on how to calculate other types of expenses and also additional resources.

Go to www.familieschange.ca.gov/en/parents/child-support

Other Resources

There are many resources available to help California families through separation and divorce. Some of these are listed on the Families Change site at www.familieschange.ca.gov/en/parents/resources.

Talk to an Attorney

If you want to talk to a knowledgeable and professional attorney about your questions relating to separation, divorce, child support, or any other family law issue, the attorneys at the Law Office of David Knecht, have extensive experience in family law. Contact us at 707-451-4502 for more information.

Filed Under: Divorce Lawyer, Vacaville Attorney

How to Calculate Child Support in a California Divorce

One of the most important questions parents face when considering separation or divorce is how to calculate child support in a California divorce. The information provided by the California Courts and summarized in this article is a good place to start in informing yourself on the process. Go to https://www.familieschange.ca.gov/en/parents/how-do-we-calculate-amount-child-support

California Child Support Calculator

California law requires courts to adhere to statewide uniform guidelines in setting child support orders. The Payment Estimator applies the statewide uniform guideline calculation to the information that you enter into the blank fields.

https://childsupport.ca.gov/guideline-calculator/

Calculate Annual Income.

The court bases child support on a parent’s “net disposable income.” This means the parent’s income after state and federal taxes and other required deductions. The court may order support based in part on bonuses, commissions, overtime, and other supplemental or non-wage income if the court determines that this income occurs regularly. Certain income is NOT counted when determining a child support obligation, for example SSI (Supplemental Security Income).

The Amount of Time.

There is a wide variety of time share arrangements which have consequences for how child support is calculated. If the children live with one parent most of the time, then the parent who has the children predominantly will typically receive child support. However, that isn’t always the case There are situations where the parent who has the children most of the time will still have to pay the other parent support. An example of this is where one parent has a much larger income than the other parent.

Health Insurance

Medical support is related to child support because Federal and California State Law requires that every child support order include an order for medical support, meaning that the court will order either or both parents to provide health insurance for the child as long as it is available for reasonable cost. If you do not think you can afford the medical support order, you can file a request to ask the court to modify or terminate the order.

Consult with the Law Office of David Knecht

For a consult with a knowledgeable and professional attorney about your questions relating to child support or any other family law issue, the attorneys at the Law Office of David Knecht, have extensive experience in family law. Contact us at 707-451-4502 for more information.

Filed Under: Family Law, General Legal Advice, Legal Advice

California Infant Custody Laws

Are you considering a divorce, but you are worried about what will happen to your infant? Although divorce is never easy, you can at least take comfort in the fact that the state’s laws are based on a standard that puts the child first: the best interest of the child.

What is the best interest of the child?

There are many factors a judge could consider to determine what is in the best interest of the child. These include the child’s age and health, the emotional ties to each parent and other caretakers, and each parent’s physical and emotional ability to care for the child. These are just a few of the many factors that can roll up into the best interest of the child analysis.

What are some factors specific to babies that a court may consider?

If a child’s health, safety and welfare are the most important priorities, then some issues specific to babies will likely be extremely important. For example, important considerations might be whether your child is breastfed or bottlefed, the safety of the baby’s living environment, and whether both parents are capable of providing for an infant’s needs. Infants need much more hands-on care and careful supervision than older children, so those infant-specific needs will be part of the court’s analysis. Unfortunately, there are no hard and fast rules to allow a prediction of exactly how a judge would rule in a case, but we can predict many of the factors that will likely be considered.

What is the difference between legal infant custody and physical infant custody?

Most people have heard about custody, but there are actually two types of custody: legal custody and physical custody. Legal custody is a parent’s authority to participate in decisions about a child’s health, welfare and education. Physical custody is the child’s physical presence with the parent.

Is the decision about my child’s custody always in the hands of the judge?

Many parents come to an agreement between themselves about child custody. Sometimes a mediator is used to facilitate the negotiations. If the parents can reach an agreement, then the next step is to take that agreement to the judge who will approve it if it is in the best interest of the child.

Do you need to talk to a lawyer about the custody of your infant?

If you have questions or concerns about the custody of your infant or would like a consultation on any divorce related legal issue, contact the Law Office of David Knecht. We have extensive experience in all aspects of family law and can answer your questions. Contact us at 707-451-4502 for more information.

Filed Under: Custody Laws, Fairfield Attorney, Vacaville Attorney

What is a Digital Estate Plan and Do I Need One?

With social media being part of the everyday life for many, the question presents itself as to how you want your social media to be handled when you die. Do you want your loved ones to announce your passing on social media? Would you prefer the privacy of having the account shut down? These are examples of how a Digital Estate Plan would help your family and friends honor your wishes in social media and other ways when you pass. This article will discuss a Digital Estate Plan to help you understand what it is and decide if it is something you need.

What is a Digital Estate Plan?

Digital estate planning is the process of organizing your digital property and digital assets, and making arrangements for what should happen to that digital landscape after your death.

Step 1: Make a List of Digital Assets.

The first step of making your Digital Estate Plan is to take inventory of all your assets, which could include the following:

Email
Social media accounts
Online log in information for banks, stock trading accounts, retirement accounts
Photo and video sharing accounts
Domain names/blogs/ websites you own
Reward accounts such as airline mileage accounts
Intellectual property, including copyrighted materials and trademarks
Online diaries/calendars/notes

Step 2: Decide What You Want Done with Assets.

The next step is to think through your ideal scenario for what you want to happen with your assets:

Do you want social media accounts deleted, or to continue running under someone’s direction?

How will your email accounts be handled? (For helpful information on the policies of email providers, here is a resource: https://www.everplans.com/articles/what-happens-to-my-email-accounts-when-i-die

Which assets have monetary value?

Step 3: Store the Information in an Easily Accessible Place

To be useful, the Digital Estate Plan needs to be stores somewhere that it can be located easily after your passing. There are many ways you can store your Digital Estate Plan. You can contact an attorney, you can store the information online, or you can store the information in a physical location, like a bank.

Step 4: Incorporate the Digital Estate Plan into Your Overall Estate Plan

A complete California Estate Plan generally includes a Living Trust, Powers of Attorney for Property and Healthcare, a “HIPAA” authorization, a Living Will/Advance Healthcare Directive, a Pour-Over Will, Deeds to your properties, Beneficiary Designations on various assets, and Guardian Nominations for minor children. You can include the Digital Estate Plan that you have organized into you overall California Estate Plan. The attorneys at the Law Office of David Knecht have extensive experience in estate planning and can advise you on how to create a plan that sets out your wishes for your loved ones in the event of your death. Contact us at 707-451-4502 for more information.

Filed Under: Digital Estate Plan

Do I Have to Pay My Spouse’s Attorney Fees in a California Divorce?

A question that often arises in a divorce is whether one spouse has to pay the other spouse’s attorney’s fees, and like many areas of the law, this legal question does not have an easy yes or no answer. This article will talk about how the process works in determining whether the wife has to pay the attorney fees or whether the husband has to pay the wife’s attorney fees or whether each party pays their own.

Family Code 2030

You can read the California Family Code Section 2020 that talks about this question here: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2030.&lawCode=FAM

Each party needs to have equal access to representation

One key part of this law states that the court should ensure that each party has equal access to representation. To accomplish this goal, the court can order one party to pay the other party or the other’s party’s attorney.

What does “equal access to representation” mean?

A legal case from 2009, known as Alan S. v Superior Court of Orange County, helps explain what “equal access to representation” means. You can read the full opinion here: https://scholar.google.com/scholar_case?case=9789715232219912999&q=divorce+attorney+fees+alan+s.+&hl=en&as_sdt=6,45

The Alan S. case clarified that a common misconception is that the purpose of Family Code 2030 is to redistribute money from the greater income party to the lesser income party. In other words, some people incorrectly believe that this law is in place to make the money “fair” by forcing the richer party to pay the fees of the poorer party. The Alan S. case clearly explains that equalizing disparate incomes is not the purpose. The purpose is to equalize access to legal representation.

The idea is that both sides should have the opportunity to retain counsel, not just the one with the greater financial strength. In fact, the Court in this case was quite clear on that point, and even italicized the take-away message of the case with this explanation: “The whole point of this case, after all, is that each side should have an equal opportunity for legal representation in the upcoming child custody hearing.”

Does the party with greater financial resources always have to pay for the other spouse’s legal fees?

Another common misconception is that the party that is wealthier always has to poay for the other spouse’s legal fees. That is not the rule, as the decision turns on access to legal representation and not just the difference in incomes between the two parties. For example, in the Alan S. case, the lower court’s ruling that Alan S. had to pay his wife’s attorney fees was reversed because the court reviewed the circumstances and concluded that the equal opportunity standard in this instance did not justify an attorney fee award.

How can you find out whether one spouse will have to pay the other spouse’s attorney’s fees in your divorce?

If you have questions about paying a spouse’s attorney fees, please contact us at the Law Office of David Knecht. We have extensive experience in all aspects of family law and can answer your questions. Contact us at 707-451-4502 for more information.

Filed Under: Family Law, Vacaville Attorney, Vacaville Lawyer

What is a California Estate Plan?

A comprehensive California estate plan should be specific and customized to fit your personal circumstances. It generally includes a Living Trust, Powers of Attorney for Property and Healthcare, a “HIPAA” authorization, a Living Will/Advance Healthcare Directive, a Pour-Over Will, Deeds to your properties, Beneficiary Designations on life insurance, annuities, IRAs, 401 (k)s, Guardian Nominations for minor children and perhaps more. Sounds like a lot? Well, there can be many advantages to getting everything in order while you are in good health and capacity to make the many decisions involved in preparing these documents. This article will give you an overview what each of the pieces of the Estate Planning puzzle are and how they can help you.

What is a California Living Trust?

A California Living Trust protects you while you are alive. During your lifetime, you have complete control over the Living Trust to change it, and you will have the right to use the property during your lifetime with no restrictions. However, upon incapacity or death, the Living Trust puts the power into the hands of your heirs, generally with no requirement to go to court. It can have advantages for tax planning and avoiding creditors. You can find more information on Living Trusts here: https://www.scscourt.org/self_help/probate/medical/living_trust.shtml#what

What is a Living Will/Healthcare Directive?

A California Living Will is more commonly knowns as an Advanced Healthcare Directive, and it helps your loved ones know how to carry out your wishes when you are no longer able to make your own decisions. It can direct them on tough decisions such as breathing and feeding tubes and other end of life dilemmas. You can find more information here: https://oag.ca.gov/consumers/general/care#advance

What is a California Durable Power of Attorney for Property and Healthcare?

A Power of Attorney is a document that authorizes someone to represent you. A Power of Attorney can authorize another person to make bank transactions, trade stocks, pay your bills, buy or sell your property, file your tax returns, hire people to take care of you, apply for benefits on your behalf and more. You can find more information here: https://www.scscourt.org/self_help/probate/medical/poa.shtml#what

How do I designate a guardian for my children in California?

If you have minor children, it is likely a great concern for you to determine who will take care of your children if you pass away or become incapacitated. When both parents are dead, the court will decide who the guardian will be as per what is the best interest of your children. The court will ask the children what they want and consider your guardianship wishes. Alternatively, while you are alive, if you have legal custody, you can obtain a joint guardianship, and then when you pass away, the legal custody will transfer to the other joint guardian usually without additional hearings. You can find more information here: https://www.courts.ca.gov/1215.htm?rdeLocaleAttr=en

What is a California Pour-Over Will?

A Pour-Over Will works hand-in-hand with our Living Trust. It covers everything that may not be in your Living Trust at death to your trust. For example, if you took your home out of your trust to refinance and forgot to put it back into the trust, you Pour-Over Will would make sure that the home is distributed under the terms of the trust. You can find more information here: https://www.scscourt.org/self_help/probate/medical/living_trust.shtml

What is a HIPAA Authorization?

A HIPAA authorization allows the people you designate to have access to your healthcare documents. This can be important for your family members to get updates on your condition, view diagnostics such as lab reports or test results, and to make more informed healthcare decisions on your behalf. You can find a HIPAA form here: https://www.dhcs.ca.gov/services/Documents/Authorization%20for%20Release%20of%20Protected%20Health%20Information%20DHCS%206247.pdf

How can the Law Office of David Knecht help you personalize your estate plan?

Depending on your specific circumstances, you may need other documents. If you are anticipating bankruptcy, divorce, or certain types of lawsuit, you may need strategic planning to protect your beneficiaries. An estate plan goes further than a checklist of documents, but should be approached with a unique plan just for you that provides the best tax strategies and plans to carry out your wishes with exactness. The attorneys at the Law Office of David Knecht, have extensive experience in all aspects of estate planning and can help you create a plan that is complete and advantageous. Contact us at 707-451-4502 for more information.

Filed Under: California Estate Plan, Estate Planning, Estates

3 Important Reasons Why a HIPAA Authorization Should be in Your Estate Plan

For a many people, when they hear “estate planning,” they think simply of a will, but a complete California estate plan is much more than that. This article will explain what a HIPAA Authorization is and three important reasons why it is an important part of your estate plan.

What is HIPAA?

The Health Insurance Portability and Accountability Act, or HIPAA, is a law relating to the privacy of health care records. Having a HIPAA authorization in your estate plan is important to make sure that the people who are important to you have access to your health care records and can communicate with your medical care providers. Your doctor and other health care providers are not able to talk to your loved ones on the phone about your condition, share lab or diagnostic reports, or release other medical information with family members or friends unless you have prepared a HIPAA Authorization.

What are the 3 important reasons you need a HIPAA Authorization?

The HIPAA Authorization has these advantages:

Allows your family access to medical records.
Gives family members ability to receive updates about your condition.
Enable loved ones to access your medical bills to ensure they are paid.

What is the difference between a HIPAA Authorization and a Living Will/Healthcare Directive?

A HIPAA authorization provides certain people with the right to give and receive medical information about you that would otherwise be protected as private. For example, they can ask the doctor what medications you are taking or let the doctor know about side effects you may be experiencing. They can receive information about test results, etc. They can also talk to the provider about billing issues on your behalf. The Advance Healthcare Directive goes further as it is more encompassing than the HIPAA Authorization. The Advance Directive can give the person you select the right to talk with medical personnel but beyond just hearing about your condition, this document gives them the right to make medical decisions on your behalf if you are incapacitated. For example, if you were in a coma, the Advance Directive would give that person the decision-making power to allow or give up on certain treatments.

How do I create a HIPAA Authorization?

The easiest way to create HIPAA authorization is to contact an attorney who is experienced in estate planning and include it in a comprehensive estate plan. A HIPAA Authorization will generally meet these requirements:

State that it is a HIPAA Privacy Authorization Form
Include your name
Define the scope of authorization – for example authorize all medial information or contain exceptions
Include the effective date it goes into effect as well as the date of expiration of the Authorization

What attorney can help me create a HIPAA Authorization and an estate plan?

The attorneys at the Law Office of David Knecht, have extensive experience in all aspects of estate planning and can help you create a HIPAA Authorization and all other documents necessary for a complete and customized estate plan. Contact us at 707-451-4502 for more information.

Filed Under: Estate Planning, Estates

Probate Guardianship Frequently Asked Questions

Are you facing an incurable illness and wondering what will happen to your children? Have you decided on a friend of family member to appoint as the guardian for your precious children, but you are confused as to the process? If these questions are at the forefront of your mind, please contact the Law Office of David Knecht. We have answers. If you are in the process of educating yourself on the basics, here is an overview of some of the frequently asked questions about probate guardianship with information derived from the following: https://www.courts.ca.gov/1215.htm?rdeLocaleAttr=en.

What is Guardianship?

Guardianship is a court process where a person who isn’t the child’s parent is given custody over the child (authority and responsibility to care for the child) or custody over the the child’s property.

Who can be a Guardian?

The range is wide of parties who could qualify to be a guardian, from relatives to friends to interested parties.

Can I name a Guardian for my children in my will?

Yes, you can name a guardian for your children. You can write a letter naming a guardian or include it in your will. If both parents are dead, the court will decide who the guardian is, but the court will take into consideration your recommendation.

Can I ask for a Guardian for my children if I am dying?

Yes, if you have an incurable illness and legal custody of the child, you can ask the court to appoint a join guardian, which can make the transition easier when you pass away. This can give peace of mind to a parent who is facing an early death. If the court approves the joint guardianship, both of you will act as parents when you are alive and then the joint guardian will have full custody of the child without another guardianship hearing.

Can a child ask for a Guardian?

Yes, if a child is 12 years old or older, he or she can ask the court for a Guardian.

Where can I go for answers about Guardianship?

If you have questions about Guardianship, the attorneys at the Law Office of David Knecht, have extensive experience in all aspects of family law and estate planning and can answer your questions. Contact us at 707-451-4502 for more information.

Filed Under: General Tagged With: Probate Guardianship

Can a Postnuptial Agreement Save Your Marriage?

I recently had an attorney friend share her story about how a postnuptial agreement saved her marriage, and I share it with her permission. She had used separate assets earned prior to the marriage to pay large expenses for two children via IVF and gestational carriers. The couple was one year into marriage, and she said she was building resentment for his lack of contribution to the expense of the children. She discussed a postnuptial agreement, wherein he agreed to pay her a large sum in the event of divorce, which both thought was fair, since her assets had been severely depleted with the fertility expenses. She agreed to stop threatening divorce and agreed to pay him a certain sum if she moved out of their home within the next year. This in an example of how a postnuptial agreement can be useful in many situations where After the postnuptial agreement was signed, she felt peace of mind knowing that her financial position was more protected than previously, and he felt relief that she would be incentivized not to threaten divorce or move out. This story illustrates the advantage of a postnuptial agreement when the parties may not be at the point of divorce, but they have issues that need to be discussed or resolved.

How Can A Postnuptial Agreement Help a Marriage?

At the beginning of a relationship, you may not fully know who your spouse is or what their habits are. Your spouse may not have been completely forthright with you about finances, fidelity or other issues. A postnuptial agreement can help you discuss and resolve some of these issues, possibly setting yourselves up for a more peaceful and positive marriage in the future. A postnuptial agreement can address a wide variety of issues such as committing to therapy, promising to refrain from infidelity, or clarifying financial responsibilities. Sometimes making a commitment through a contract can help motivate the parties to improve their effort in the marriage.

What Is A Postnuptial Agreement?

In California, a postnuptial agreement is a legal document that protects the parties’ assets in the event of a divorce. Similar to a prenuptial agreement, the postnuptial agreement guides the court on terms that should apply in the event of a divorce. The laws relating to Postnuptial Agreements in California can be found here: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=1.&article=

What Are the Requirements for a Valid Postnuptial Agreement in California?

Unlike prenuptial agreements that are valid once completed, the postnuptial agreement is not considered a valid agreement until filed with the family court and accepted by a judge. Additionally, neither party can be forcer or coerced into signing the agreement. It must be in writing and have the signatures of both parties and be notarized. Finally, the agreement must be clear, transparent and fair.

What Is Not Allowed with a Postnuptial Agreement?

You can’t threaten, deceive or force your spouse into signing.
You can’t create an agreement that is “unconscionable,” meaning it is unreasonably in favor or against one the parties.
You can’t hide assets, debts, income or property from your spouse with the intention to trick them into a postnuptial agreement.

A postnuptial agreement isn’t helpful for every marriage, but if is a tool that may help you, please contact the Law Office of David Knecht, at 707-451-4502 for more information. We have extensive experience in family law and can help you decide if a postnuptial agreement is right for you.

Filed Under: Postnuptial Agreement