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

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

First Steps in Dealing with the Estate when Someone Dies

When a person passes, the family and friends left behind will often wonder what to do.  This article will provide an overview of how to deal with the estate.  Source: https://www.courts.ca.gov/8865.htm.  It isn’t uncommon for people to feel completely overwhelmed with the task of figuring out the estate when they are already overcome with grief and pain from the passing, so feel free to reach out to the Law Office of David Knecht for a consultation on how we can help you through this difficult time. 

 

  • Find out who will be the estate representative. 

 

The first step is to find out who will be the estate representative.  If there is a will, then the person named as executor in the will is the representative.  If there is no will, there are two possibilities:  Under certain conditions, the estate can pass through simplified procedures informally, and under other conditions, the case has to go through a formal probate court case where the court appoints an administrator. 

 

  • The estate representative should start gathering information and fulfilling duties. 

 

The role of the estate representative is to  are many important steps the estate representative is to take care of the estate and make sure it is distributed correctly.  This can include many steps, a few examples of which are as follows:  Get certified copies of the death certificate, find the will, collect and safeguard assets such as bank account funds, life insurance proceeds, veteran’s benefits, Social Security death and survivor benefit, real property (homes, cabins), collect the mail and any important papers, cancel credit cards and subscriptions, and manage digital assets (like a social media profile), notify the Franchise Tax Board, notify the Social Security Administration if the decedent was receiving monthly social security, prepare the decedent’s final income tax returns.  It’s a challenging task to identify and manage all of the duties involved. 

 

  • Identify the heirs and beneficiaries. 

Identifying the heirs and beneficiaries can be challenging.  It is usually decided by the terms of a will (if there is one), by state law if there is no will or if there is a problem with the will, or by other estate planning documents like beneficiary designations, living trusts or join tenancy arrangements.  There can be problems with a will.  For example, if a will is out of date, and a beneficiary has already died.  Many people find that an attorney can provide assistance in this key step of identifying heirs and beneficiaries. 

 

  • Inventory the property of the person who has died.

Make a list of assets and debts, which includes real property like a home or a farm, and personal which can be tangible property like cars, furniture, etc or intangible property, like stocks and bonds.  Find out how it is owned and the value of the property or debt on the date of death.  Consider whether the property is shared with perhaps a spouse or a business partner. 

 

  • Determine the best transfer process. 

 

When you’ve made your list of all the property, to whom it should be transferred, and what the value of it is, then final step is to determine the procedure for transfer.  There may be simplified procedures available or it may have to be done formally in probate court. 

Conclusion

Death is difficult, and the legal process for handling the estate can be confusing and stressful to deal with on your own. The Law Office of David Knecht, at 707-451-4502, can help you navigate the sometimes complex and confusing steps in settling the estate when someone dies.  Contact us today. 

 

Filed Under: Estates, Vacaville Attorney, Vacaville Lawyer

Can You Use Simplified Procedures to Transfer an Estate?

When a loved one passes and you face the task of settling their legal and financial affairs, you may be wondering if you need to go to probate court to obtain title to the property.  The answer to this question can be complex and depends on a variety of factors such as the amount of money involved, the type of property and who is claiming the property.

Did the decedent designate a beneficiary? 

 

If the person who passed (called a decedent), named on or more beneficiaries to receive the asset, then a simplified procedure may be used to transfer the property.  Common examples of this situation would be life insurance proceeds, retirement accounts, pensions, annuities, bank accounts, stock accounts or property in a living trust. 

How was the property owned?

 

Another important factor is looking at the type of title ownership, or in other words, how the property was owned.  For example, was the property owned in a joint tenancy such that the surviving owner gets the entire property?  Was the property community property with the right of survivorship, such that the surviving spouse or partner would likely get the entire asset

Was the property community property?

 

The community property analysis may not be as simple, however.  An example is if the asset appears to community property without an explicit right of survivorship and whether a will designating that the property be divided in other ways.  It’s important in community property situations to ensure that the property was not somehow changed to separate property through agreement or otherwise. 

What type of benefit is involved?

 

Certain types of benefits can usually be collected without probate court.  These include benefits such as social security survivor benefits or benefits as a dependent of a deceased veteran. 

Find Answers to Your Questions

California Courts have publicly available resources explaining the probate process at https://www.courts.ca.gov, but these resources are often insufficient to answer every question.  Contact the Law Office of David Knecht, at 707-451-4502. We have extensive experience and can help make this process easier to navigate. 

 

Filed Under: Estates, Vacaville Attorney, Vacaville Lawyer

What is Probate and What Are the Steps?

Probate means that there is a court case that deals with deciding if a will exists or is valid, figuring out who the decedent’s heirs or beneficiaries are, assessing how much the property is worth, taking care o the decedent’s financial responsibilities and transferring the property to the heirs or beneficiaries.  

In a probate case, the executor (if there is a will) of an administrator (if there is no will) is appointed by the court as a personal representative to collect assets, pay the debts and expenses, and then distribute the remainder of the estate to those who have the legal right to inherit.  All this is under the supervision of the court.  The entire case can take between 9 months to 1.5 years, perhaps longer or shorter. 

This article which summarizes information from the California Courts found at https://www.courts.ca.gov/42629.htm,  will give you an overview of the steps you need to take when a case must go through the probate process.  For help navigating the system and answers to your questions, please contact the Law Office of David Knecht, at 707-451-4502. We have extensive experience and can help you fulfill your responsibilities to the estate and to the memory of your loved one. 

  1. Within 30 days of person’s death, take the original will to the probate court clerk’s office and send a copy of the will to the executor or to a person named in the will as a beneficiary if the executor cannot be found. 
  2. The petitioner must start a case by filing a Petition for Probate and any other required forms in the county where the person who died lived (or in the California county where that person owned property if the person lived outside California). 
  3. Certain steps ensue after the case is filed, including a hearing date, notice requirements to various parties, and paperwork review by the examiner or the judge.
  4. The personal representative gathers assets and prepares an inventory and appraisal form.  An appraisal of nonmonetary assets often will also be needed.
  5. Creditors are formally notified and debts are paid.
  6. A final income tax return is prepared for the person who died.
  7. The probate court figures out who gets what property.
  8. The personal representative may be required to file additional forms to confirm the sales of real property.
  9. A final estate tax return is required under certain circumstances.
  10. The personal representative reports to the court on how the estate was handled and a hearing is typically held for the court’s review.

After all the filings are reviewed and the judge is satisfied that everyone received their property properly from the estate, the court discharges the personal representative from his or her duties.

 

 

 

Filed Under: Probate Lawyer, Vacaville Attorney, Vacaville Lawyer

How to Understand the Words Used in Probate Cases

Losing a loved one is heart-breaking, and this time of mourning can be even more challenging for the family or friends that now have the responsibility to manage the property that is left behind.  Probate is the court process for distributing the assets, paying debts, and settling the financial affairs of the person who has passed.  It is an area of the law with its own vocabulary, and understanding the terms will help you navigate the system.  The definitions below can also be found on https://www.courts.ca.gov/documents/Common_Words_Probate_Cases.pdf. 

The Law Office of David W. Knecht helps trustees and executors administer trusts and probates.  We will spend time with you explaining the process and tasks involved in successfully administering a trust or probate estate.  We also prepare Wills, Living Trusts, Durable Powers of Attorney and Advance Health Care Directives to meet client’s estate planning needs.  Additionally, we represent clients in trust litigation and will contests, representing trustees, executors, beneficiaries and other intended parties.  Contact us at David Knecht Law at 707=451-4502 for help with any probate needs. 

Administrator: the person (usually the spouse, domestic partner, or close relative) that the court appoints to manage the estate of person who dies without a Will. The administrator is also called the personal representative of the estate. 

Beneficiary: a person who inherits when there is a Will. 

Decedent: the person who died. 

Decedent’s Estate: all real and personal property that a person owned at the time of death. 

Executor: a person named in a Will and appointed by the court to carry out the dead person’s wishes. The executor is also called the personal representative of the estate. 

Heir: a person who inherits when there is no Will. 

Holographic Will: a Will that is handwritten, dated and signed by the person writing the Will. 

Intestate: when someone dies without leaving a Will. 

Intestate succession: the order of who inherits property when someone dies without a Will. 

Living Trust: a trust set up during the life of a person to distribute money or property to another person or organization. 

Personal Property: things like cash, stocks, jewelry, clothing, furniture, or cars. Personal Representative: the administrator or executor that the court appoints to manage the estate. 

Probate: The court process for distributing a dead person’s assets, paying debts owed by the dead person, and settling the financial affairs of people when they die. 

Real Property: buildings and land. Successor: anyone who has the legal right to receive property of a person who dies, either under the Will or the Probate Code. 

Testate: when someone dies leaving a Will. Trust: an arrangement where property is given to someone to be held for the benefit of another person. 

Will: a legal paper that lists a person’s wishes about what will happen to his or her property after death.

Contact David Knecht Law at 707-451-4502, we are happy to walk you through what you need to know and guide you through each step of the probate process. 

 

Filed Under: Probate Lawyer, Vacaville Attorney, Vacaville Lawyer

5 Important Estate Planning Documents to Have in Place During the COVID-19 Pandemic

The unfortunate reality of the current global pandemic is that anyone can find themselves sick in the hospital and possibly no longer able to make their own financial or medical decisions. Because of this, the last thing that anyone wants is to become incapacitated without the proper estate planning documents in place.

Read on to discover what we consider the five most essential documents you should either create or update during the current COVID-19 outbreak to protect yourself, your property, and your loved ones.

Will:

 

Your will is the legal document that instructs how to distribute your assets after your death and appoints guardians for any dependents or minor children. Dying without a will leaves your assets and property in the hands of your state’s laws.

It is also recommended that you review all beneficiary designations for retirement plans and life insurance to ensure that they are current.

Healthcare Power of Attorney: 

It’s essential to authorize someone you trust to make medical decisions on your behalf in case of a medical emergency that leaves you incapacitated and unable to communicate your own wishes. A durable power of attorney for health care permits you to make such an authorization.

Living Will:

 

A living will is sometimes called an advance care directive. This document outlines the kind of medical care you want if you are terminally ill. For instance, you can make it known whether you want to be kept alive on life-support systems, such as a respirator or feeding tube. You can also include instructions for organ donation.

Durable Financial Power of Attorney:

 

You also may want to make sure that your family has some kind of access to your finances in order to pay bills and medical expenses if you are unable to do so on your own. That’s why another important document to prepare is your financial power of attorney. This document gives someone the authority to handle financial transactions on your behalf if you become incapacitated.

HIPAA Authorization: 

 

The Health Insurance Portability and Accountability Act (HIPAA) sets federal privacy rules for medical records. However, if you’re hospitalized, you may want your spouse, children, or other close relatives to be able to communicate freely with doctors and nurses and find out how you’re doing. That’s why you may want a release document for records authorizing certain people to have rights to disclosure of your medical records.

Contact Us:

As the COVID-19 pandemic continues to actively spread through California, make sure you have the above documents in place and up-to-date, especially if you are an individual at high-risk of serious illness or death from Coronavirus.

David Knecht has extensive experience preparing Wills, Living Trusts, Durable Powers of Attorney, and Advance Health Care Directives to meet your estate planning needs. Contact David Knecht Law at 707-451-4502 today to learn more about these documents or schedule an estate planning consultation. 

 

Filed Under: Living Will, Power of Attorney, Probate Lawyer, Trust Administration Attorney , Vacaville Attorney, Vacaville Lawyer

The Importance of Up-To-Date Estate Planning During a Pandemic

 

Let’s be honest. 2020 has been a terrible, horrible, no good, very bad year. The COVID-19 pandemic has particularly made 2020 a nightmare for people across the globe. 

At times like this, thoughts of sitting down and taking care of your estate planning are probably not at the forefront of your mind. However, if you fall ill, the last thing you want to be dealing with is attorneys gathering around your hospital bed trying to finalize your estate plan. In times like these, it’s best to prepare for the worst and contact your attorney to update your estate planning documents and arrangements.

Read on to see why having a will and estate plan is more important than ever during these unprecedented times.

Have you been procrastinating?  

Procrastination is normal. No one wants to think about dying or becoming incapacitated, and it’s easy to push your end-of-life planning aside.

However, these days, many of us have more time and flexibility in our schedules than usual. And with a deadly virus spreading through California and the world, you don’t want to risk something happening to you without having a proper plan in place. So now is the time to stop procrastinating and instead prioritize creating or updating your trust or will. This is especially true for high-risk groups such as medical professionals, first responders, and the elderly or other compromised individuals.

Are your loved ones, assets, and personal desires protected? 

Many people only think of estate planning in the context of the wealthy or elderly. However, anyone over the age of 18 should start thinking about their estate plan. This is true regardless of your income level, marital status, or number of children. No matter your situation, it’s crucial to take steps to protect your loved ones, your property, and your personal wishes in your will or trust.

Here are some key areas to consider covering in your estate planning documents:

  • Clarifying the distribution of your assets
  • Naming guardians for minors and dependents
  • Laying out a long-term health care plan
  • Arranging for important family keepsakes and personal items
  • Communicating final wishes, funeral arrangements, and burial requests

Do you need peace of mind? 

During times like these, many people’s emotional and mental health suffers. People are worried about their health and safety, their job security, their financial situation, and their ability to engage in social activities in the future.

Because of this, the last thing that anyone needs is for a lack of personal estate planning to add to their anxiety and stress. Meeting with an attorney and making sure that your loved ones and property are taken care of can bring you that extra peace of mind you may be needing.

Contact Us:

As the COVID-19 pandemic continues to actively spread through California, stay on top of things and make sure your estate plan is up-to-date. Contact David Knecht Law today to schedule an estate planning consultation.

 

Filed Under: General Legal Advice, Vacaville Attorney, Vacaville Lawyer

5 Considerations for People Going Through a Divorce During the COVID-19 Pandemic

When COVID-19 put many portions of the country under lockdown and social restrictions this year, people found themselves spending a lot more time at home. While many have enjoyed the experience of working from home and being quarantined with their family members, the forced togetherness has certainly not been good for some marriages and relationships. Indeed, by April 2020, the interest in divorce had already increased by 34% in the United States. 

If you find yourself going through a divorce this year, read on to discover five important issues we recommend that you take under consideration.

Assets:

 

The global and national economies have seen significant effects and instability as a result of fears related to COVID-19. If you’re currently in the process of negotiating the allocation of assets and finances during your divorce, it’s important to be mindful of the impact the economy and market may have on these assets.

Financial Obligations:

 

For divorcing spouses who have lost their employment due to the COVID-19 pandemic, there are likely questions and concerns surrounding financial obligations such as alimony or child support payments. If you’ve suffered a change in financial circumstances, it’s important to address your situation with your attorney to see if anything can be modified or done to alleviate some financial pressure.

Health Insurance:

 

Now is certainly not an ideal time to be without medical insurance coverage. If you’re going through a divorce, keep in mind that your health insurance plan will likely need to change if you were a member of your former spouse’s health insurance policy. Make sure you know your situation and your options before the divorce is finalized.

Parenting Concerns and Communication:

 

For divorcing spouses with children, now is the time to set aside any animosity and cooperate with each other in the best interests of their children. It’s crucial that each parent stay updated and provide notice to the other parent of any health-related changes impacting their child or whether anyone in their respective homes has tested positive for the COVI-19 virus. Parents should also timely share Coronavirus-related information received from their children’s school or extra-curricular activities.

Court Operations:

 

For those who need certain divorce matters addressed in court or in a mediation, they may have found certain court dates and meetings being postponed or altered due to the COVID-19 pandemic. This is something for anyone in the middle of divorce proceedings to be aware of and to discuss with their attorney.

Contact Us:

A divorce is never easy. The events of 2020 have undoubtedly made family law issues even more difficult. However, a knowledgeable family law attorney can assist you with the legal issues surrounding your divorce, especially any new concerns or questions that have arisen during the COVID-19 pandemic.

David W. Knecht has years of experience handling various divorce cases in California. Contact David Knecht Law at 707-451-4502 today to learn more or schedule a consultation. 

 

Filed Under: General, Vacaville Attorney, Vacaville Lawyer

3 Qualities of a Capable Probate Lawyer

 

The American Bar Association defines probate as “the court-supervised legal procedure that determines the validity of your will.” When an individual dies, their will is filed with the court and the probate process begins. During this process, the estate’s property, debts, and claims are inventoried, appraised, and eventually distributed to beneficiaries according to the will. 

This process can be time-consuming, complicated, and overwhelming, especially when dealing with the recent loss of a loved one. A qualified probate attorney can help you through it all. Read on to learn about some of the most essential qualities that you should look for when selecting a probate attorney. 

 

  • Knowledge and Experience:

A probate attorney should be well-versed in the complex laws and court procedures that are involved in the probate process. You’ll particularly want to work with an attorney who understands California probate law and who has kept up-to-date on the most recent changes to the state’s statutes and case law developments. 

You’ll also want to find a probate lawyer with plenty of experience. Never select a probate lawyer who is just starting out. Look for an attorney who has practiced California probate law extensively and who understands the nuances of your local court, so that you can be sure you have a qualified person handling your case.  

 

  • Effective Communication:

Every lawyer needs effective communication skills. This is particularly true for probate lawyers because the job requires clear communication with a number of people, including the executor, the court, and the client. 

What this means is that you’ll want to find a lawyer who can not only advocate well for you in front of a judge or an executor, but who can also help you understand the probate process. Estate planning can be complicated. The best probate lawyers can answer all your questions and explain the probate process to you in the most simple and straightforward way possible. 

 

  • Empathy 

Losing a loved one is difficult. While you might not want to even think about estate planning and probate while you’re dealing with such loss, these issues need to be resolved quickly and effectively. 

Because of the sensitive nature of the probate process, it’s important for the lawyer handling the case to be compassionate and empathetic towards their client. The best kind of lawyer will be sensitive to their client’s needs, alleviate the stress of handling the deceased individual’s estate, and quickly resolve any problems that arise during the probate process.

With the professional advice and assistance of a California probate attorney, you can ensure your loved one’s estate is properly taken care of. Contact David Knecht Law today to schedule a consultation!    

 

Filed Under: Probate Lawyer, Trust Administration Attorney , Vacaville Attorney
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