A beneficiary designation is the act of naming the person who will inherit an asset in the event of the account owner’s passing. Some common examples include life insurance policies and retirement accounts. When the account owner passes away, their assets are then transferred to the beneficiary that they designated. It’s also possible to designate your estate as the beneficiary. Instead of transferring the asset to a person, the asset is transferred to the estate. Then, the asset is distributed according to the provisions in your Trust or Will. As a result of the SECURE act, any person who falls into one of the above five categories is an eligible designated beneficiary. The main thing to note about eligible designated beneficiaries is that they have added benefits relative to designated beneficiaries, such as greater flexibility in withdrawing funds from their inherited assets. There are different types of beneficiary designations, and the number of types increased with the recent SECURE act. • Eligible Designated Beneficiary (EDB): EDBs fall into one of five categories as defined by the 2019 SECURE Act. These beneficiaries have certain advantages over other beneficiary types. Why Set Up a Designated Beneficiary?Have you made a beneficiary designation on your retirement accounts, savings accounts, and life insurance policy? Not doing so could be a mistake. When someone doesn’t set up a designated beneficiary, your estate automatically becomes the beneficiary. This could be subject to a long, expensive, and burdensome probate process. When designating your beneficiary, be sure to name a contingent beneficiary in case the primary beneficiary is predeceased. It’s also helpful to be as specific as you can. Designate your beneficiaries by name (instead of “my kids”), and be sure to specify how that particular asset will be divided and distributed. Keep in mind that designated beneficiaries become active the moment you pass away, and can inadvertently override any provisions about asset inheritance in your Will. It’s helpful to use online tools that will make it easier for you to review and update your estate planning and beneficiary designation documentation. Beneficiary designation very much sounds like an estate planning term. Although it’s closely related, in this case it’s slightly different. Designating a beneficiary refers to the process of naming an individual who will receive an asset upon your passing. This is done for each individual asset, such as a life insurance policy, through the company that holds the asset. This means that you’ll need to repeat the process with the different entities that hold your assets. Estate planning, however, does play a big role. That’s because the beneficiary designation of an asset overrides your Will by default, if it does not match with the provisions of your estate plan. This is yet another reason why you should make a habit out of reviewing and updating your estate plan regularly. Furthermore, designated beneficiary is a person who inherits an asset such as the balance of an individual retirement account (IRA) or life insurance policy after the death of the asset’s owner. The Setting Every Community Up for Retirement Enhancement (SECURE) Act has narrowed the rules for designated beneficiaries when it comes to required withdrawals from inherited retirement accounts. Under the SECURE Act, a designated beneficiary is someone named as a beneficiary on a retirement account and who does not fall into one of five categories of individuals classified as an eligible designated beneficiary. The designated beneficiary must be a living person. While estates, most trusts and charities can inherit retirement assets, they are considered to be a non designated beneficiary for the purposes of determining required withdrawals. A designated beneficiary inherits the balance of an account, an annuity or a life insurance policy when the account owner passes away. Needless to say, anyone with a life insurance policy or other assets should review the documents regularly and make any changes required by new circumstances, such as marriage, birth, death, or divorce. Multiple beneficiaries can be named. Assets can be divided among more than one primary beneficiary. There also can be more than one secondary beneficiary. The primary beneficiary or beneficiaries are the first in line to receive the asset. The secondary or contingent beneficiary is next in line if the primary beneficiary dies before the owner of the asset, cannot be located or refuses to accept the asset. Designated beneficiaries may be revocable or irrevocable. If revocable, the owner of the asset can make changes. An irrevocable beneficiary has certain guaranteed rights that cannot be denied or amended. This 10-year rule limits the time in which a beneficiary can benefit from tax-deferred growth. It ensures the retirement account’s assets are withdrawn and therefore taxed within 10 years of the owner’s death. Prior to the SECURE Act, retirement account holders were able to utilize an estate planning strategy referred to as the stretch IRA. The stretch IRA allowed the account to be passed down (potentially) for generations, as distributions were based on the life expectancy of the person taking withdrawals. However, the 10-year rule does allow flexibility in when the distributions are taken. Because there is no required minimum distribution for any one year, a designated beneficiary can take withdrawals when it best suits their lifestyle and tax planning needs. For example, if Sue inherits a retirement account in 2020 and is subsequently laid off in 2021, it may benefit her to take a larger portion of the money out of the account in 2021 when she is in a lower tax bracket. How to CollectThe designated beneficiary must make a claim to receive assets left to them as another person’s designated beneficiary. The claim form will be supplied by the company that manages the asset. The form should be returned with a copy of the account holder’s death certificate. This is available from the county or state in which the person lived. Does Beneficiary Designation Override A Will?You might be wondering, “Does a beneficiary supersede a will?” The answer is yes, and that’s why you want to understand the difference between a will vs. beneficiary. It’s important to be very careful when dealing with these two documents. When you sign off on your Will, you might feel relaxed with the belief that your estate plan is complete. Typically, there’s peace of mind that comes with knowing that your estate will be distributed according to plan. However, don’t be too quick to relax. Typically, a beneficiary designation overrides a Will. For example, let’s say that you wrote in your will that you want everything to be left to your spouse. You have a retirement savings account, for which you designated your two children as your beneficiaries. At the time of your passing, the retirement savings account designation would supersede anything written in your Will. As a result, the money in the IRA would be transferred equally amongst your two children, instead of your spouse. When an individual passes away, the instructions in a Will only distribute assets included in their probate estate. Assets with beneficiary designations get excluded from the estate by default. To avoid any conflict, it’s critical to make sure that the language of your Will correlates with each of your beneficiary designations. It helps to perform a regular review and update your Will or beneficiary designation documents as needed. Can an Executor Override a Beneficiary?An executor has a legal duty to carry out any wishes and instructions included in a Will. However, many people don’t realize that their assets won’t all be automatically controlled by their Will upon their passing. As mentioned earlier, there are certain asset types that are passed by beneficiary designation, overriding the Will. Therefore, an executor cannot override a beneficiary designation, unless specifically ordered to do so by the court. However, be careful not to confuse this with a beneficiary of a Will. The Will also name beneficiaries who are to receive assets. An executor can override the wishes of these beneficiaries due to their legal duty. However, the beneficiary of a Will is very different than an individual named in a beneficiary designation of an asset held by a financial company. Do I Need a Will If I Have Beneficiaries?Our firm helps an individuals to set up a basic estate plan at a minimum. This includes a Will, as well as a Trust when appropriate. You’ll likely have at least one designated beneficiary, but this does not cover all your bases. Here are some quick reminders on the differences between beneficiary designations vs. will. Designated beneficiaries are typically only required for assets such as life insurance, annuities, and retirement savings accounts (IRAs, 401Ks, etc.) A Will encompasses all of your assets, including any real estate property, family heirlooms, checking accounts, and any sentimental possessions. A Will is also so much more than just language on asset distribution. It can also include your last wishes, as well as any important instructions you wish to leave to your loved ones. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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One common question we often encounter is: ‘how long does it take to receive inheritance from a will?’ The answer largely depends on the probate process. It’s not uncommon for the beneficiaries of a will to become impatient with estates’ executors as the probate process drags on and on. However, the executor may not be moving slowly. She must complete several tasks before she can make the decedent’s bequests to his beneficiaries. If she jumps the gun and distributes bequests too soon, the court holds her personally responsible if she runs out of money to pay the decedent’s taxes and debts. You’ll usually get the grant of probate (or letters of administration) within 8 weeks of sending in your original documents. You should not make any financial plans based on the date you expect to receive it, as it may take longer. Get access to financial assetsYou can ask for financial assets to be transferred to an agreed ‘executorships account’. This can be either: Pay debtsAs the executor or administrator you must pay off any debts or outstanding payments before distributing the estate. This could include: Money in a joint bank account automatically passes to the other owners. You still have to include this money as part of the estate when you work out Inheritance Tax. If the person who died owned the whole of the home with another person (‘joint tenancy’), ownership passes to the other owner. Otherwise, their share goes to the beneficiary named in the will. Distribute the estateOnce all debts and taxes have been paid, you can distribute the estate as detailed: The Personal Representative or Successor Trustee has to take the following steps before the estate can be closed or the trust can be terminated: • Inventory the decedent’s documents and assets. Before a Personal Representative can be appointed by the probate court or a Successor Trustee can take over the administration of a trust, all of the decedent’s estate planning documents and other important papers must be located. The decedent’s estate planning documents may include a Last Will and Testament, funeral, cremation, burial or memorial instructions, and/or a Revocable Living Trust. The decedent’s important papers may include bank and brokerage statements, stock and bond certificates, life insurance policies, corporate records, car and boat titles, and deeds; and information about the decedent’s debts, including utility bills, credit card bills, mortgages, personal loans, medical bills and the funeral bill. • Distribute what’s left to the beneficiaries. And so we come to the very last step in the process of settling an estate or trust – write the inheritance checks to the beneficiaries. This is the very last step because if the Personal Representative or Successor Trustee fails to take care of all five of the prior steps and simply gives the beneficiaries their share of the estate or trust, then the Personal Representative or Successor Trustee will be held personally liable for all of the decedent’s unpaid bills, the administrative expenses, and all unpaid taxes. Receiving an inheritanceYou may have been left money, property, investments or other things by the person who died. The inheritance tax on the person’s estate is paid before you get this money or other items. The executor or administrator (the person in charge of distributing the estate of the person who’s died) has to pay off any debts before they can pass over money and items to the people inheriting them. If you’ve been left an asset (e.g. a property) in the Will, but there isn’t enough money in the estate to pay the person’s debts, the item you’re due to inherit may need to be sold. You can get advice from a solicitor on this. Sometimes, when you’ve been left money, the executor or administrator may ask if you’d like to accept some assets instead. It could be jewellery, or some antiques, depending on what’s in the estate. You don’t have to agree to this. You don’t have to accept an inheritance at all if you don’t want to. If you refuse it, the executor or administrator decides who gets it instead. It’s possible to change the Will of a person after they’ve died as long as anyone who’s inheriting and would be made worse off by the changes agrees to it. To do this, you need a deed of variation. This can be complex, so it’s best to get advice from a solicitor. The variation must be made within two years of the death. Inventory and ValuationsAfter an executor takes office, she has a period of time in which to prepare an inventory of the decedent’s assets for the court. This includes a list of all his property, as well as values. Values of significant assets, such as real estate, require appraisals, and a professional appraisal can take more than a month to complete. In Utah, an executor’s deadline for accomplishing all this is three months, but she can ask for an extension. Three months is a typical time frame for this step. Therefore, you can expect that probate of the will won’t reach this point until approximately four months have passed. After the oath swearing, the grant of probate usually takes between 3-4 weeks to be received. The remaining probate process usually takes up to 6 months to complete but can easily go past 12 months. The revenue and customs authority can take up to five months to process capital gains tax and the inheritance tax. You should pay inheritance tax to make sure the process takes the shortest time possible to complete. Therefore the probate cost will vary depending on the deceased person’s assets and property value. Generally, as you can see, the higher the value of the asset, the more the probate costs. Consequences of revocationIf the grant is revoked, a new grant of probate should be applied for according to the terms of the new will. If the estate has been distributed already the new personal representatives should seek specialist professional advice on recovering the incorrectly distributed parts of the estate in order to correctly distribute the assets. The recipient of any cash gifts (who would not be entitled to the legacy under the new will) may be liable for the full sum. If the existing grant of probate or letters of administration is revoked, the personal representatives may be concerned about their liability for incorrectly distributing the deceased’s estate. The personal representatives may be protected from liability provided the court is satisfied that they acted in good faith and believed there was no will or the original will was valid at the time of making the distribution. Provided the court is satisfied, the personal representatives may retain or reimburse themselves in respect of any payments and/or dispositions made under the original grant. Probate Lawyer in Utah Free ConsultationWhen you need to receive your inheritance, please call Ascent Law LLC for your free consultation (801) 676-5506. We can help you with: Estate Planning. Probates. Intestacy. Will Administration. Trust Administration. Trust Preparation. Trust Accounting. Reading of the Will. Drafting Powers of Attorney. And much more. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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Should I Get A Prenuptial Before I Get Married? Do All Wills Have To Be Probated? What Should You Do If You Get Pulled Over For A DUI? The post How Long Does it Take to Receive Inheritance from a Will After Probate is Granted appeared first on Ascent Law. Via https://ascentlawfirm.com/how-long-after-probate-is-granted-does-it-take-to-receive-inheritance/ In the legal world, creating a Last Will and Testament is a critical step to ensure your assets and possessions are distributed according to your wishes after your death. The common question is, “Can I write my own will and have it notarized?” Yes, you certainly can. However, it is essential to understand that while you can write your will and have it notarized, the process is not as straightforward as it seems, and the consequences of getting it wrong can be severe. This blog post aims to guide you through the complexities and potential pitfalls of drafting your own will, as well as explaining the role of notarization in the process. By the end, we hope to provide you with the knowledge needed to make an informed decision about whether or not drafting your own will is the right choice for you.
How to Make Up a Simple Will and Have It NotarizedYour will designates who is to receive your possessions and assets when you pass away. If you die without leaving a properly executed will, confusion or uncertainty may arise regarding the distribution of your property and how your physical remains should be handled. A will does not have to be signed by a notary public to be legally binding, but a notary’s signature helps to establish the validity of your will. • Handwrite or type a title for your will, such as “Last Will and Testament.” Below this title, write your full legal name, your present home address and your Social Security number or other identifying information such as your date of birth. • Write a paragraph affirming that you are of sound mind and memory at the time of writing the will; your wishes are expressed in the document without undue duress or influence from any other person; all previous wills are now revoked; and at the time of writing the will, you are of legal age to create a will. In Utah, the minimum age to write a will is 18. • Designate an executor for your will. You can also name an alternate executor to serve if your first choice is unwilling or unavailable. Often, the executor is either your spouse or the principal beneficiary of your will. • Name your beneficiaries in your will. Explicitly state what possessions or assets you wish to bequeath to each person, and make sure their identities are clear – use a full name and date of birth to identify each beneficiary. If you have a spouse and do not wish to make that individual a beneficiary of your will, you should seek legal counsel for advice on how to exclude your spouse from your will. • Specify any wishes you have as to your funeral arrangements. If you have specific desires for how your remains should be handled, state them in the will. • Place your signature at the end of the will. Your signature should be preceded by a statement that you signed the will before designated witnesses on a particular date. Do not sign the will until your witnesses are present. Leave a signature space for a notary public. • Secure the services of a notary public before you sign your will. Many bank branches have notaries on staff, as do most law firms. Take your will to the notary’s office and sign in the presence of the notary and your witnesses. Where You Can Go Wrong With a Do-It-Yourself WillIt is possible to write a will all by yourself, type up on a piece of paper detailed instructions on the distribution of your worldly goods after your death, without the help of an attorney. But if you are planning anything complicated, this might have all the authority of a grocery list that has been notarized. And when there are mistakes, it is possible that the survivors of the deceased will end up in court, spending thousands of dollars to contest a will. Another complication is that each state has its own rules. Some states recognize oral wills; some don’t. In some states, you have to have the will signed at the end and witnessed by two disinterested parties. But some states require three signatures. Even if no one contests your will, the courts still have to follow the letter of the law. Many courts will not validate provisions if the will is not properly executed (with the proper notarization and number of witnesses). Courts will also balk at provisions that do not make sense. Even uncontested wills can remain in expensive probate limbo, Because of the disparate nature of do-it-yourself projects; there are no aggregate statistics on how many people across the country file their own wills each year. Here is what can go wrong, and how to avoid it: • Naming an executor: Designating a trusted individual to carry out your last wishes is a complicated choice. Whom you choose is the real linchpin to the proper closing of your estate. Do not simply pick someone who cares about you, but someone who either has some financial acumen or knowledge of the law or better yet, both. • Leaving stuff to pets: If you want to make sure that your pet is taken care of, then don’t leave your pet money in your will. Instead, you need to provide for your pet’s care through a human. The individual should be sure to leave the named caretaker with all of the information he or she will need to care for the pet. • Putting conditions on heirs to receive payouts: This can lead to problems in court. “Often the conditions aren’t spelled out with sufficient clarity,” Sometimes the courts find the conditions illegal or impractical to enforce. For instance, if a parent wants their child to lose 20 pounds or graduate from college before receiving money, someone has to stick around and make sure that the condition is enforced, and that can mean paying an executor additional fees for a long time. • Designating unusual end-of-life decisions: The main problem here is that some consumers confuse wills with living wills. If you put in your will, for instance, that you do not wish to be placed on life support in the event of a medical emergency, that document is not likely to be read until after you die, or possibly when you are in a lengthy coma. By then, it is too late. • Designating guardians for children: The failure to fill out a legal document designating a guardian for your children is a common error, says an expert, as is not having a backup, in case the first guardian gets sick or dies. • Failure to coordinate beneficiary designations: You may have a life insurance policy or retirement account that has a beneficiary named as part of the process. If you have something different listed in the will, what is on the account takes precedence. So you may put in your will that you want your best friend’s son, whom you always regarded as “family,” to receive the funds from your 401(k). But if you die without having designated a beneficiary on the actual account, or have named somebody other than your best friend’s son, the money likely will not get to him. The funds will go to the named beneficiary first, and then will follow a hierarchy through your blood relatives. • Funeral instructions: This is similar to the living will confusion. Most wills are not found or submitted to probate until after the funeral has taken place. If you are going to put your funeral instructions in a will, it’s advisable that you alert your executor, the person you name to handle the details of the will. • Dealing with blended families: It probably won’t be contentious if the family gets along, but if you know your kids from your second marriage don’t think much of your kids from the first, you may want to consider taking inventory and being very clear about who gets what of your belongings. People will fight over scarves and jewelry, even though there’s no value to them. It isn’t the money so much as the principle over it. Statutory Requirements for a Valid Written WillThe will must have been executed with testamentary intent; Testamentary CapacityIn addition to testamentary intent, the testator must have the testamentary capacity, at the time the will is executed. Generally, it takes less capacity to make a will than to do any other legal act. As guidance, a four-prong test is often used. The testator must: Signature RequirementsMost courts take a liberal view as to what constitutes a testator’s signature. These standards range from the testator’s first name, nickname or even an “X” by an illiterate person. Additionally, proxy signatures (made by another person) are acceptable, as long as the signing is at the testator’s direction and in his or her presence. In order for the testator’s signature to be valid, it has to be done as a volitional act by the testator. Although someone can assist the testator in this task, the signing must still be at the testator’s direction. In most states, there is no requirement that the testator sign at the end of the will (subscribe his signature). The signature can appear anywhere, provided it was intended by the testator to be his signature. In many jurisdictions, the signature must be at the end of the will to be valid. In these jurisdictions, even deciding where the end of the will is can create uncertainty. Some jurisdictions apply an objective test requiring the testator to sign at the physical end (or last line) of the document. In contrast, some jurisdictions say that what constitutes the end is a subjective test, holding that the logical or literary end is the appropriate place for the signature. Here, the question is whether the testator subjectively thought that he was signing at the end of the will. Signing anywhere can create confusion as to the effect of provisions that may appear after the testator’s signature. Historically, if there were material provisions appearing after the testator’s signature, the entire will was void. The modern view is that everything appearing before the signature is given effect; but the provisions that follow the signature are void (even assuming they existed at the time the will was made). An exception to this view is if the provisions following the signature are so material that deleting them would subvert the testator’s testamentary plan. In such a case, the entire will is void. Witnesses, Attestation and Self-Proving AffidavitIn addition to the testator signing the will, it also has to be signed by witnesses. Like the testator, the witnesses must possess certain minimal qualifications or their attestations may be legally insufficient to validate the will. Specifically, the witnesses must be competent, they must be mature enough and of sufficient mental capacity to understand and appreciate the nature of the act that they are witnessing and attesting to, so that, if needed, the witnesses could testify in court on these matters. A witness usually is judged incompetent to serve as a witness to the will if the person is also an interested witness. An interested witness is one who is a beneficiary under the will. At common law, the will was denied probate in those instances. Most states require only an acknowledgement to the witnesses by the testator that his signature appears on the document. Most courts are indifferent about whether the attesting witnesses or the testator signs first. Most jurisdictions define presence as the testator being conscious of where the witnesses were and what they were doing when they signed. Other jurisdictions dictate that the presence test is only satisfied if the witnesses are in the testator’s line of sight when they signed. Absence of fraud and undue influence• Fraud is one ground to invalidate a will. Fraud involves: Fraud in the execution involves the testator being deceived as to the character or contents of the document he is signing. Fraud in the inducement involves the testator making the will or writing a provision that relies upon a false representation of a material fact made to him by one who knows it to be false. Undue influence involves substituting another person’s will for that of the testator. The factors of undue influence are: • a susceptible testator; Undue influence is difficult to prove because the evidence must be substantial, going beyond mere suggestion, innuendo or suspicion. Merely having a motive, the opportunity or even the ability to exert undue influence is not sufficient to prove it actually happened. If the elimination of a provision created under undue influence does not defeat the overall testamentary plan, it can be stricken; the rest of the will is still valid. In contrast, if this revision alters the testator’s wishes for the disposition of his property, the entire will is set aside. Yet, the existence of a confidential relationship between a testator and a beneficiary may raise a presumption (often rebuttable) of undue influence, especially if the beneficiary played an active role in procuring the will and the disposition under the will is unnatural. Absence of mistakesIf a testator somehow signs a document purporting to be his will but it is the wrong document, most courts will hold that there is no will. Generally, if a testator omits some provision in his will it cannot be added postmortem (after death), because a will cannot be reformed or revised once the testator has died. [In the next chapter we will review when extrinsic (outside) evidence is admissible; however, that is used for to clear up ambiguities, not to add new terms to the will. Conversely, a provision included in a will by mistake may be omitted by the probate court when the will is admitted to probate, if the mistaken inclusion is separable from the rest of the will. The deletion of the provision cannot substantially alter the overall will or the intent of the testator. This type of modification is similar to one found in contracts that allows a provision that is illegal or conflicting to be eliminated; however, the contract itself still remains valid. There can also be a mistake in the inducement, when a testator is mistaken about a material fact and makes no provision in the will because of it. Unlike fraud in the inducement, a mistake in the inducement will not cause the will to be invalid. Such innocent mistakes will not adversely affect the will’s validity. In effect, no relief is granted for the injured party. Although the will may not be invalidated or changed, the intended beneficiaries might be able to hold the attorney liable for negligent drafting. Ultimately, the testator is responsible for ensuring that the will accurately reflects his intentions. This is crucial, since once the testator dies; there usually is no way to rectify any problems with the will. Courts will not step in to rewrite someone’s will. Safekeeping of WillsA testator’s first inclination may be to keep the will in a safe deposit box, along with other important papers. This option could cause delay in locating the will because access to a decedent’s safe deposit box to search for the will requires an ex parte court order. As an alternative, the will can be deposited in a will safe or vault of the attorney who drafted it. Lastly, for a nominal fee, the will can be deposited in the will safe at the surrogate court. This last option could be inconvenient if the testator decided to change the will at a later date. In some jurisdictions, process must be served on the beneficiaries and fiduciaries named in the earlier will if their rights and interests are adversely affected by the later will. Wills Attorney Free ConsultationWhen you need legal help with a will, trust or estate plan in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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Chapter 11 vs Chapter 13 Bankruptcy The post Can I write My Own Will and Have it Notarized? appeared first on Ascent Law. Via https://ascentlawfirm.com/can-you-just-write-a-will-and-get-it-notarized/ If the father is not on the birth certificate, can he fight for custody? Most fathers ask what rights they have to their children if they are not listed on the birth certificate. If a couple is married, it is always presumed that the husband is the child’s father, but it is not so simple if a couple has a child while being unmarried. In short, if you are not on the birth certificate, you have no legal rights to the child. There is a difference between being the biological father versus being the legal father. If you are not listed as the father on the birth certificate, you have no rights to custody, visitation, or paying child support. To establish a father’s legal rights to their child, it is required that they establish paternity. Paternity is the Acknowledgement that you have fathered the child and will begin taking legal responsibility for the child. Legal responsibility for a child can come in many forms, such as health insurance, food, shelter, clothing, etc. There are a few ways that paternity can be established. The first is voluntarily through what is known as an Acknowledgement of Paternity. This form is typically filled out at the hospital before the birth of the child. From there, that form must be sent off to the appropriate government office. This form can be presented to the father to remove all doubts regarding the child’s father and is typically filled out with both the mother and father being present at the hospital. If the parties are married once this is done, the father’s name can be added to the child’s birth certificate immediately. If the parties are not married, this form must be filled out before adding the father’s name to the birth certificate. If the child’s mother is unsure about who the father of her child is, signing an Acknowledgement of Paternity voluntarily is not likely. It is crucial to understand how beneficial it can be for both the child and the father in establishing paternity. Starting with the child, the earlier paternity is established, the quicker a child will be eligible for health insurance coverage. This is most important during the beginning years of a child’s life when many doctor’s visits are required with the various preventative shots children must be administered. This can also help if your child falls to a sudden illness or is diagnosed with a chronic condition requiring ongoing medical treatment. Next, a father who has legal rights to their child will help establish the parent-child relationship between the two. Unfortunately, most children grow up in one-parent households, and having both parents in a child’s life is critical for their development. On the other hand, establishing paternity early can help a father as well. For example, if a father who has had paternity established has had his rights to the child infringed on by the mother, he can seek enforcement of those rights. He can also seek enforcement of rights and duties that violate a court order. The father can also become a party to any child’s legal case if paternity is established and can even seek enforcement. It is also beneficial for the child’s health because the father’s family medical history will be available and warn of any medical issues the child can inherit. If you have legally been determined to be the child’s father, you are known as an “adjudicated” father. This legal determination is made through the courts when a mother or an “alleged” father files suit to determine paternity. If you are the filing party of a paternity suit, you will carry the burden of establishing the paternity. This is done through DNA testing. If you have voluntarily adjudicated paternity but begin to have doubts as to the paternity of the child, it is helpful to know that an acknowledgement is not permanent. However, there are time limitations on when an Acknowledgement can be rescinded. Rescission is the cancellation of the exposure. The parties will treat it as if the declaration were never signed in the first place, basically returning the parties to the position they were in before the exposure was signed. To do so, the party seeking rescission must do so within 60 days of the Acknowledgement being received by the Bureau of Vital Statistics. If you are the legal father to a child and believe otherwise, you must file a lawsuit to counter the established legal relationship. However, there is a statute of limitations on when this action can be brought, and any suit filed after one year of the date the father had reason to believe he was not the child’s father will be barred. If the father presents a strong enough case, DNA testing will be ordered by the Judge. If DNA testing comes back negative, all rights and duties to the child will be terminated, leaving the mother to her means to establish paternity for the child. Establishing paternity for a child as early as possible is greatly recommended. The harsh reality surrounding paternity can negatively affect a child as studies have shown what it is growing up without a father. If you have not established this paternity, it is crucial to know that you do not have legal rights to a child. Fathers’ Rights – Birth Certificates & Parental ResponsibilityThere are many queries from fathers seeking advice on whether it is important to be named on their child’s birth certificate. Here are the primary questions we encounter. For more information on this topic, do not hesitate to contact our specialist team who will be happy to assist. Could The Father Not Be Named On A Birth Certificate?It is relatively common for the father not to be named on a child’s birth certificate. The reason behind such an omission may be a genuine mistake or oversight by the mother or the person completing the paperwork. Perhaps the parents’ relationship has broken down. In other instances, the father’s name may not be known or intentionally withheld by the mother. Why Is It Important For The Father To Be Named On The Birth Certificate?When named on the birth certificate, the father acquires rights in respect of the child. These rights are known as parental responsibility. If the father’s name is missing from the birth certificate, the father will not automatically acquire parental responsibility. What Is Parental Responsibility?A person with parental responsibility of a child must: As a result, parental responsibility is very important for a father. If there is a disagreement concerning one of the above issues between the mother and father, it is not permissible for either parent to make a unilateral decision without the agreement of the other parent. Legal remedies are available in the event on ongoing dispute. What Are A Father’s Rights If Not On The Birth Certificate?This will depend on whether the father and mother were married at the time of the child’s birth. The father will automatically acquire parental responsibility if he and the mother were married at the time of the child’s birth or have subsequently married each other. It is more difficult for the father if he and the mother are not married at the time of the child’s birth and he is not named on the birth certificate. Simply, he would not automatically acquire parental responsibility. In the worst-case scenario, if the mother does not accept the father is indeed the father, he will encounter significant difficult attempting to invoke the rights that would be acquired by having parental responsibility. Can A Father Put Himself On The Birth Certificate?Yes, but the process will differ depending on whether the mother is in agreement with the father’s name being inserted and the birth certificate re-registered. Again, this is only relevant when the parents are unmarried. If the mother is in agreement, the birth certificate can be re-registered directly with the General Register Office (GRO). The mother and father will need to provide some evidence to the GRO likely in the form of a statutory declaration from the mother that the father is the child’s father. Once completed, the father will duly acquire parental responsibility. If the mother is not in agreement, the father will need to make an application to the court seeking a declaration of parentage. Most likely, this would involve the court ordering a DNA test being undertaken to establish paternity. Once established, the court will notify the GRO and the birth certificate will be re-registered including the father’s details. However, the father will not acquire parental responsibility in this manner. Limitations of a Father Not Listed on a Birth CertificateJust because the father is not listed on the birth certificate, does not mean that he cannot formally request custody or visitation. However, he will need to go through the process of establishing paternity to overcome the legal limitations on him. Roughly 40% of babies in the US are born to mothers who are not married. If the father is not present at the birth of the child, then his name will likely not appear on the birth certificate. In the case that both parents are present at the birth, but the parents are not married, it is possible to have the father listed on the birth certificate. Most hospitals require an Acknowledgement of Paternity (AOP) form to be signed by both the mother and father before adding the father to the birth certificate in that case. Just because the father is not listed on the birth certificate, does not mean that he cannot formally request custody or visitation. However, he will need to go through the process of establishing paternity. Child Custody & Visitation AgreementsAfter paternity is confirmed, parents can begin negotiating a parenting agreement or parenting plan. A parenting agreement / plan will normally include details like which parent will have primary custody, specifics on the other parents visitation schedule, details on which parent will make decisions regarding the child’s education, health care, religion, and procedures for how potential changes to the arrangement will be handled. The visitation rights of unmarried fathers will also depend on other factors like their relationship with the child, any drug or alcohol use, or any history of child of past child abuse, etc. If both parties are unable to agree to a parenting agreement / plan the either parent may petition the court for child visitation or custody help. If the parents cannot agree on these arrangements, either one may ask the court to grant his or her request through a contested hearing. Courts deciding on child custody and visitation issues will determine what is in the best interest of the child. Courts assume that most children will benefit from having both parents involved in their care. If one parent can show evidence that the other parent would likely cause harm to the child, then the courts will take this into consideration when making a decision. Who Is Awarded Child Custody When the Parents Are Unmarried?If both of the child’s parents have been legally established, disputes regarding custody and child support will most likely be handled as if the parents were legally married. When a child is born to an unmarried mother, the mother is automatically granted sole custody in most states and circumstances. Legally speaking, a father who has not established paternity has no legal right to their child without a court order. There is no presumption of paternity, meaning that unwed fathers are not by default assumed to be biologically related to their child. Because of this, unmarried fathers can be prevented from being awarded child custody or even child visitation rights. At first glance, this seems to be incredibly discriminatory and unfair to the unmarried father. This system is as such in order to prevent unmarried mothers from pursuing child support from the father, which would be unfair without first establishing paternity so the father may receive rights. What Will Likely Happen If There Is a Custody Battle Between Unmarried Parents?Once again, what will likely happen if there is a custody battle between unmarried parents depends heavily on how each state handles unmarried child custody. Generally speaking, the court will order shared custody. Other states may award joint custody with the condition that one parent acts as the custodial parent. It is considered to be fairly uncommon for one parent to not be granted any visitation rights at all. Such circumstances would generally only occur if one parent was found to be abusive or otherwise unfit to parent. The court would need to have strong reason to believe that it would actually be detrimental to the child’s wellbeing if they were involved with the noncustodial parent. If the child’s mother disputes the father’s claim to paternity, the father would need to petition the family court in order to establish his paternity. Additionally, the father would need to petition and establish paternity if the unmarried couple does not live together. Once paternity has been definitively established, the unmarried father is entitled to all of the parental rights as a married father would be. In order to avoid a lengthy custody battle, it is important for both parents to do their best to remain amicable and willing to compromise. Another way to avoid a custody battle would be to work together in order to create a reasonable and agreeable custody arrangement that the court will approve of. Above all else, a custody battle would not be in the child’s best interests. Free Initial Consultation with LawyerIt’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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The post Can A Father Fight For Child Custody If He Is Not On The Birth Certificate? appeared first on Ascent Law. Via https://ascentlawfirm.com/can-a-father-fight-for-child-custody-if-he-is-not-on-the-birth-certificate/ If your employer is deducting money from your paycheck due to a wage garnishment (also called a wage attachment) and you can’t afford basic living expenses, you might be able to reduce the amount of the garnishment. Some of the ways to lower or even eliminate the amount of a wage garnishment include: Most creditors can’t garnish your wages without first getting a money judgment against you. The creditor must sue you in court and then either win its case or else get a default judgment (which it gets if you don’t respond to the lawsuit). After the creditor obtains the money judgment, it must get a court order directing your employer to deduct a percentage of your wages. Not all creditors have to get a money judgment before garnishing your wages though. For instance, a streamlined process is available for creditors collecting tax, student loan, and child support debt. Federal wage garnishment law typically allows a creditor to deduct 25% of your after-tax income, depending on the type of debt. State law can limit the garnishment amount further. The creditor can garnish all of your wages above the protected amount.
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