Estate Planning for Blended Families in California

Blended families are very common, but estate planning for a blended family can come with a set of challenges to consider.  This article will summarize 5 blended family mistakes to avoid, with content referenced from:  https://www.aarp.org/retirement/planning-for-retirement/info-2021/blended-family-estate-planning-mistakes-to-avoid.html

Not Changing Beneficiaries.  

One of the most common mistakes is failing to update wills or beneficiary designations.  It’s not unusual that the ex-spouse may be inadvertently left as a beneficiary.  Make sure that you have properly updated the beneficiary on all stock accounts, life insurance, bank accounts, and all other type of account with a beneficiary designation. 

  • Treating All Heirs Equally. 

It’s important to give extensive thought to the needs of each of the children and the assets that you have.  For example, you may have some children with different ages, earning capacities, or lifestyles.  You can treat heirs equitably without treating them all equally. You may see that one possible heir might have special needs or disabilities.  One spouse may have greater assets going into the marriage than the other and want some of those proceeds to go to certain heirs.  Every person’s situation is different, but careful consideration of your heirs and their needs will help you plan wisely. 

  • Waiting Until You Are Gone to Give. 

You may want to give your heirs a gift when you are alive to see them enjoy it.  You can gift up to $15,000 a year (in 2021) without a tax consequence.  See https://www.irs.gov/businesses/small-businesses-self-employed/frequently-asked-questions-on-gift-taxes

Skipping the Lawyer

If you are older and on your second marriage, it’s likely that your estate plan may be somewhat complicated.  Ex-spouses, blended families and comingled assets can add to the complexity.  For this reason, investing the time and money in getting a thorough estate plan may give you the comfort of knowing that the plan you have is sound and solid.  

Consult with the Law Office of David Knecht

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in estate planning and can help you create a plan that addresses the needs of you and your family and accomplishes your goals.

 

5 Ways to Save Money on Your California Divorce

Many people considering divorce are fearful of the cost and how the expense of a divorce may negatively impact their future long-term.  This article will help provide suggestions on how to save money on a California divorce.     

  1. Prepare and Organize Your Information.  If you prepare and organize your information in advance of meeting with your attorney, your meeting with him or her will be more effective.  You can make a list of all your assets and liabilities.  You can do research online to assess the value of your home, vehicles, and other assets.  When you organize this information into a concise summary, you will be better prepared to have an efficient discussion.  
  2.  Give Consideration to Your Priorities, Questions and Concerns.  Many issues in divorce require careful thought and consideration so that you can establish your ideal outcome.  For example, what would be the best custody arrangement for your schedule?  Where would you like to live now and in the future?  What assets are important to you to keep and what do you not mind selling?  Your attorney will certainly be invested in helping you achieve your ideal outcome, but in order to do that he or she will need to work with you to find out what that target is. 
  3. Choose a Support Person.  Decide a support person who can be there for you when you need impartial advice, a shoulder to cry on, or just a listening ear.  This support person will be essential in helping you process the many emotions involved in a divorce.  This will save you money by helping you set reasonable goals, make good decisions, and keep the time you are paying your attorney focused.  
  4. Communicate in Writing When Possible.  One way to save cost in any legal case is to communicate in writing, when it makes sense.  If you need to send your attorney a quick thought or note, an email or text can be quicker and cheaper than a phone call. 
  5. Choose Your Attorney Carefully.  One of the most important ways to save money in a divorce is to hire an attorney who is experienced in family law.  Some people are tempted to hire a friend or family member who is a lawyer with the idea that they may get a better deal going with someone they know.  Unfortunately, when you hire someone who does not have experience, you may be spending more money because they may have to come up to speed on family law issues on your dime.  

Consult with the Law Office of David Knecht

If you want a lawyer who is effective, efficient and experienced, while still being cognizant of cost, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  

 

Estate Planning Tax Advantages for Married Couples in California

Estate planning is a hot topic in 2021, and creating a plan with taxes in mind is especially important.  Taxes are a very important part of estate planning and this article will focus on a narrow slice of that large pie from a legal point of view as we discuss the estate planning tax advantages for married couples.  Of course, these advantages apply to both same sex and different sex couples, and understanding how they work can be helpful background information for you as you consider your overall estate plan.  If you are interested in learning more from an investor’s perspective, this article on Investopedia may also be a helpful resource.  https://www.investopedia.com/terms/u/unlimited-marital-deduction.asp   

  1. Unlimited Marital Deduction.  As per federal law, you can give assets by gift of inheritance to your spouse, and the taxes on that transfer are deferred until the death of the second spouse.  This is a powerful tool because there is not a limit on the amount that qualifies for the marital deduction.  
  2.  U.S. Citizen Requirement.  It is important to be aware that the unlimited marital deduction only applies when both people are U.S. Citizens.  If the survivor is a non-citizen, then federal estate taxes must be paid on an estate that is above the federal estate tax exemption. 
  3. Qualified Domestic Trust (QDOT).  If you are a U. S citizen wanting to pass assets to a non-U. S. Citizen spouse to defer federal estate taxes, a QDOT may be the right mechanism for you.  A QDOT allows the spouse who dies first to defer all federal estate taxes until both spouses have died and also allows that spouse to retain control over where his or her estate will be distributed after both die. 
  4. Qualified Terminable Interest Property Trust (QTIP Trust).  A Qualified Terminable Interest Property Trust (QTIP trust) allows a person to create a trust upon his or her death that grants a life estate for the spouse that survives.  The advantage here is that it can be done without incurring federal estate taxes.  This trust will be included in the surviving spouse’s estate for federal estate taxes, but it is distributed according to the wishes of the spouse that died first.  The surviving spouse cannot change the QTIP Trust.  

 

Consult with the Law Office of David Knecht

There are many ways to effectively utilize estate planning to effectuate your wishes with tax advantaged methods. For a thorough discussion of issues relating to estate planning and taxes, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  

 

Can I “Kick Out” My Husband or Wife from the Home?

Unfortunately, some relationships involve violence or threatened violence, the question arises whether the victim can legally get the offending spouse “kicked out” of the home.  The answer is yes, under certain circumstances. This article will discuss the process in more detail. 

  1. Authority for the Court to Remove a Spouse from the Home. The Domestic Violence Prevention Act (DVPA) and Family Code § 6340, 6321, and 6324 authorize a court to order the restrained party to move out of property and allow the protected party to use and possess the property under specific circumstances.  To read these code sections, click the following links:  
  1. What Facts Need to Be Presented in Hearing.  There are three facts that need to be presented at a hearing:
  2. That the person staying has a reason to be in the home, specifically, “Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises.”
  3. That assault or threat of assault is involved, specifically, “That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody and control of the other party, or any minor child of the parties or of the other party.”
  4. Harm, specifically, “That the physical or emotional harm would otherwise result to the other party, to any person under the care, custody and control of the other party, or to any minor child of the parties or of the other party.”
  1.  Does the person staying have to be the owner of the home?   Not necessarily.  This question was presented in a case from the Court of Appeals in California, Nicole G. v. Braithwaite, which can be found here: https://scholar.google.com/scholar_case?case=17446401920668045282&q=braithwaite&hl=en&as_sdt=4,5

In this case, the Court ordered Braithwaite to move out of the property and granted Nicole’s domestic violence restraining order against Braithwaite.  In that case, the title to the home was still a civil case and a disputed issue between the parties, but the Court was able to exercise the power to order Braithwaite out and allow Nicole to take possession of the home temporarily to protect her. 

Consult with the Law Office of David Knecht

If you have questions about removing a spouse from a home or any questions relating to divorce or family law, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law and can be a knowledgeable advocate for you.  

 

Can I Force My Ex to Sell the House in California?

The question of whether you can force your spouse to sell the home in a divorce seems like a simple one, but the answer can sometimes involve complex analysis.  It is an issue that often arises because the home is one of the largest investments many married couples make. 

This article will provide some helpful background information to assist you in understanding potential issues, but we recommend seeking legal guidance on your specific situation, given the complexity of the issues and the significant value the home for many families.   

  1. California Family Code §2550.  California Family Code §2550 governs the division of property in a California Divorce.  The full text can be found here:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=2550.
  2. How does this law apply in practice?  This law provides that family court judges must divide the community estate equally, but this doesn’t speak to one specific asset, such as the house.  It refers to the whole of the community property estate, which will include other assets, such as money in the bank, vehicles, etc., and also debts, such as credit card debt, student loans, etc. 
  3.  What is the bottom line?  When Section 2550 applies the home, the bottom line is that one party may be awarded the home, but only when there is equality in the totality of the division of assets such that the other party’s right to reimbursement or an equalization payment is honored.  It is also true that a judge can order the sale of the home as per the authority provided by this law.   
    • What is partition and how is it used in a divorce to force the sale of the home
  4. Where is the law governing partition?  You can find California Code, Code of Civil Procedure §872.210 here: https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-872-210.html
  5.  Can Partition be Used in Divorce?  No, unless there are special circumstances involved, a partition action is specifically excluded for divorce proceedings:  “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.”

Consult with the Law Office of David Knecht

If you have questions about how your home will be divided in a divorce or any other family law question,  please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law and can be a knowledgeable advocate for you.  

 

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.  

 

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.  

 

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.  

 

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.  

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.