04. Wills And Probate
"Planning is bringing the future into the present so that you can do something about it now". —Alan Lakein
Skilled Guidance With Estate Planning and Probate
"Everyone gets organized at some point, they just might not be around for it." — Sue DeRoos
For the past thirty years Hank's practice as partner with Thiry & Caddell has concentrated substantially in the areas of estate planning and probate law. He has been active in the leadership of the Probate Law Section of the Mobile Bar Association and has been frequently called upon to lead efforts to address probate law problems of the needy.
His practice has regularly included Estate Planning, Wills, Durable Powers of Attorney, Living Wills, Healthcare Powers of Attorney, Conservatorships, Guardianship and the probate estate process from start to finish. The following links provide information and discussion which we hope you will find helpful.
"Where there is a will, there is a way". - Proverb
A Will is a legally binding, properly witnessed statement in which a person designates precisely the disposition of his worldly assets at time of death. Properly drafted, a Will should be precise and unambiguous in the bequests made and should cover any and all property which may be owned by the testator. If there are children below the age of majority to be provided for, the Will should incorporate appropriate Trust provisions setting out clear and specific standards and protections. Wills may also designate the choice of guardian for minor children.
A Will can be executed by any adult citizen of sound mind in Alabama, attested by two witnesses. If the proper language is included, a Will in Alabama can be "self-proving", thereby saving significant time and expense in admission to Probate. A Will never comes into effect unless there is a timely petition to Probate Court and accepted by that Court.
"I was planning to be a baseball player until I ran into something called a curve-ball. And that set me back." - Ben Chandler.
A Living Will, alternately referred to as an "Advance Directive", is a witnessed document through which a person may give detailed instructions about their own end of life care, including the specific circumstances under which extraordinary or "heroic" measures are authorized to be terminated, such as artificial respiration, hydration and feeding.
Preparation of the Living Will can be a very great favor to a person's loved ones, relieving them from difficult end of life choices. Also, most hospitals will insist upon execution of a Living Will before a person undergoes hospitalization for surgery or other life threatening conditions. Alabama law specifies the precise language and manner of execution of valid Living Wills.
A conservatorship is a Probate Court proceeding initiated by a petition in which someone seeks to become the Conservator of an incapacitated person for the purpose of managing their business affairs. Such proceeding may become necessary in the absence of a Durable Power of Attorney executed while the subject person is still competent.
Conservatorship proceedings are similar to decedent estates in that proper petition must be filed and justified, a bond must be approved, public notice must be made and periodic court supervision made of all of the activities of a conservator in managing the assets and income of the incapacitated person - referred to as the "Ward".
As in the case of functions performed through a Power of Attorney, a conservator is bound by a strict "duty of trust" to manage the other person's financial affairs honestly as a reasonable person might, and not to expropriate any income or assets of the Ward. Violation of this duty of trust may subject the conservator to actual and punitive damages under Alabama law.
Am I my brother's keeper?" - Cain.
Under Alabama law, as in other states, a guardianship is a Probate proceeding in which a guardian is appointed in control of the life and activities of an incapacitated person. Whereas a conservatorship involves management of the ward's financial affairs, the guardianship involves management of the ward's personal life and may include such steps as placing the ward into nursing care, approving hospitalization or surgery and other important life decisions and processes.
Before granting a guardianship, the Probate Court will always closely inquire as to whether the ward is, in fact, incapacitated and also as to the fitness and appropriateness and capability of the proposed guardian. The Probate Court will always require a periodic report from the guardian as to the status of the ward and the management of the ward's life. While many incapacitated individuals need both a guardian and a conservator, there are instances in which one, but not both of the proceedings is necessary.
Healthcare Power of Attorney
Alabama also authorizes for a Healthcare Power of Attorney in which a person may authorize a loved one or other person to make certain healthcare decisions for them and to access otherwise protected healthcare information. Without this Power of Attorney your loved ones will not have access to your medical records under the stringent provisions of the federal HIPAA statute. This brief Power of Attorney can be extremely important when it is essential to obtain medical records for a variety of purposes including disability claims, medical referrals or personal injury claims.
Durable Power of Attorney
"Always plan ahead. It wasn't raining when Noah built the ark." - Richard C. Cushing.
Effective January, 2012, the State of Alabama adopted a nationwide form for Durable Powers of Attorney. A very important element of estate planning, the Durable Power of Attorney is intended to authorize a trusted individual to handle a broad range of financial matters in the event a person becomes either mentally or physically disabled from performing such functions. The person receiving such powers remains under a strict duty of trust to act only in the best interests of the grantor.
For instance, a person may give to their spouse or a trusted adult child or friend a Durable Power of Attorney to manage financial affairs and thereby save the family from the expensive and time consuming process of opening a conservatorship to handle such matters. The Alabama Durable Power of Attorney form provides options for an extremely broad range of powers and makes specific provisions to make sure that financial institutions, brokerage firms and others will comply with the powers and instructions conveyed. The term "durable" means that the Power of Attorney will remain effective even though the grantor has lost mental or physical capacity to conduct their own affairs.
Administration and Settlement of Estates
"Let us endeavor to live so that when we die even the undertaker will be sorry." - Mark Twain.
Upon the death of an individual it will be necessary to open an estate only if significant property has been left by the deceased. Not to be considered are assets which pass immediately at the time of death such as life insurance benefits, survivor interests in real property and other such assets.
In Alabama two basic kinds of estates opened in Probate Court: Testate and Intestate. A Testate Estate may be opened where the decedent has left a Will. Typically, such estates involve far less expense, delay and court oversight than cases in which no Will exists.
An Intestate Estate is one in which the deceased left no Will. In such estates the Probate Court will always carefully review the appropriateness and status of the petitioner (looking at their relationship to the deceased) and also require that the petitioner be creditworthy enough to post a bond sufficient to cover 150% of the estimated value of the estate. Beyond that, the court periodically supervises the administration of the estate requiring various interim and final settlements and reports for court approval.
In all Probate estates a key role is played by the Personal Representative (previously known as the Executor or Administrator of the estate). That person becomes the legal representative of the estate and receives authority to bring in and protect the assets of the estate, identify and pay debts of the estate and, ultimately, distribute the assets to the heirs and/or beneficiaries, settle and close the estate with Court permission. The Personal Representative acts under a strict duty of trust and must respect not only the rights and entitlements of the heirs and beneficiaries but the legitimate rights of creditors.
If either a Testate or Intestate estate involves $25,000.00 or less in property, under Alabama law the estate may be brought as a "Small Estate". Small Estates are subject to somewhat fewer procedures, court costs and reporting requirements.
Issues Arising In Probate of Estates
"When it comes time to divide an estate, the politest men quarrel." - Ralph Waldo Emerson.
Disputes over an estate may arise for a great number of reasons, sometime of the unlikeliest kind. In many instances adult children have struggled to get along with each other until the last parent passes away when they can "let it all hang out".
Frequently an heir may come forward asserting that the parent was not mentally competent when the Will was executed, was pressured into signing the Will and, therefore contend that the Will is due to be rejected by the court. If a Will contest is successful, the estate may revert to an earlier, different Will or to the status of intestacy - no Will at all.
In other Probate cases, some of the heirs dispute the way in which the Personal Representative is managing property, alleging misuse and expropriation of estate assets. In these, and in many other scenarios, the Probate Court conducts a trial-like hearing, in certain instances empaneling a jury to determine the facts.
In the midst of such hotly contested issues, it is essential that the attorney investigate thoroughly and work effectively with the disputing parties and attorneys, to seek a fair and reasonable result for his client. Frequently, the object is to achieve a reasonable compromise settlement before the litigation devours the assets of the estate, dissuading unhappy heirs from seeking a full "pound of flesh".
Effective Estate Planning
"Planning is bringing the future into the present so that you can do something about it now". —Alan Lakein
Why is it so important to do this?
The object of careful and thoughtful estate planning is to pass on your wealth to loved ones or chosen charitable institutions in a manner that carries out your intentions with a minimum of expense, delay and friction among those whom you leave behind.
What Are the basic elements of a sound estate plan?
An effective estate plan for most of us will involve a will, durable power of attorney, health care power of attorney and living will. In its own way each of these elements may be of great service to those you leave behind.
How might things go wrong if you don't take action?
If you don't make a will or create a trust that plays that role, your property will be distributed under state intestacy law. In effect, the state will write a will for you. And under that imposed will, your property may not be distributed as you would have liked.
When is a good time to create or review your estate plan?
If you don't have a plan in place yet, a good time is right now.
If you do have one, you should review what you have any time you experience a life event. This includes birth of a child, marriage or divorce.
Hank Caddell of Thiry & Caddell has decades of experience helping clients take care of estate planning matters. Call our office today to arrange a confidential consultation.
Decades of Probate Experience
Let Hank Help You
Proper planning is essential no matter what stage of life you are in. If something does happen to you or your spouse proper planning or doing nothing makes all of the difference in the world. Hank has decades of experience with these matters and can set you and your family up for success... Not failure.