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Trust, Wills And Probate Attorney

Blog Posts, Trust, Wills And Probate AdminNo Comment on Trust, Wills And Probate Attorney

What is a Living Trust?
It is a written legal document that partially substitutes for a will. With a living trust, your assets (your home, bank accounts and stocks, for example) are put into the trust, administered for your benefit during your lifetime, and then transferred to your beneficiaries when you die. Your estate avoids probate. Most people name themselves as the trustee in charge of managing their trust’s assets. This way, even though your assets have been put into the trust, you can remain in control of your assets during your lifetime. You can also name a successor trustee (a person or an institution) who will manage the trusts’ assets if you ever become unable or unwilling to do so yourself.

The most common living trust is revocable. Such a trust may be amended or revoked at any time by the person or persons who created it (commonly known as the trustor(s), grantor(s) or settlors(s)) as long as he, she, or they are still competent.

Your living trust agreement:

  • Gives the trustee the legal right to manage and control the assets held in your trust.
  • Instructs the trustee to manage the trust’s assets for your benefit during your lifetime.
  • Names the beneficiaries (persons or charitable organizations) who are to receive your trust’s assets when you die.
  • Give the guidance and certain powers and authority to the trustee to manage and distribute your trust’s assets.

The trustee is a fiduciary, which means he or she holds a position of trust and confidence and is subject to strict responsibilities and very high standards. For example, the trustee cannot use your trust’s assets for his or her own personal use or benefit without your explicit permission. Instead, the trustee must hold trust assets solely for the benefit of the trust’s beneficiaries.

The Living Trust Services We Provide Include:

  • An analysis of your need for a trust.
  • The type of trust that best suits your needs.
  • Preparation of single living trusts and joint living trusts for married persons
    and domestic partners
  • Preparation of Pour-Over Wills
  • Preparation of Durable Powers of Attorney for Asset Management
  • Preparation of Advance Healthcare Directives
  • Preparation and recording of Trust Transfer Deeds

Is a new spouse or nonmarital partner’s income considered in child and spousal support?

Blog Posts, Divorce law AdminNo Comment on Is a new spouse or nonmarital partner’s income considered in child and spousal support?

Often, clients want to know whether the income of their new or subsequent spouse or nonmarital partner is considered by the courts in determining the amount of child support or spousal support that the client will have to pay. The general answer is that it is not considered. However, there are some exceptions, and the rules are different depending on whether the court is determining child support or spousal support.

Where the issue is child support, Family Code Section 4057.5 (a)(1) says that the income of the obligor (paying) parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor’s subsequent spouse or nonmarital partner.

The code section goes on to state that such “extraordinary case” where the court may consider new spouse or nonmarital partner income includes a case where the parent voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income. However, in the absence of such an extraordinary case, the court will not consider the income of a new spouse or nonmarital partner.

If the court did determine that there was an “extraordinary case” such that new spouse income should be considered, the Family Code section limits the discovery of that income to W2 and 1099 tax forms except where the court determines that application would be “unjust or inappropriate.”

Where the issue is spousal support, Family Code Section 4323 (b) clearly prohibits the consideration of the paying spouse’s new spouse or nonmarital partner income. The code section specifically provides that the income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.

Division of retirement pensions in family law/divorce cases.

Blog Posts AdminNo Comment on Division of retirement pensions in family law/divorce cases.

Many people are surprised to discover that retirement pensions acquired during a marriage are subject to division as community property. This means that there is a community interest in all pensions and pension rights acquired from date of marriage to date of separation. The percentage of the pension deemed to be community is determined by dividing the number of months that the employee spouse was in the pension during the marriage (prior to separation) and dividing that figure by the total number of months that the employee spouse was in the pension, prior to marriage, during marriage and after separation. The result is the community property percentage of the pension. The non-employee spouse is awarded one-half of that community portion. The non-employee spouse receives his or her share of the pension by an order signed by the court in addition to the divorce judgment, known as a Qualified Domestic Relations Order (QDRO).

QDROs must be carefully drafted to comply with all pension and tax law to and assure both spouses of an equal division of the community portion of the pension including any survivor benefits.