by Bill Miller | Nov 5, 2018 | Business
Just recognizing what something is not that hard. When it comes to legal documents, for example, you might recognize that the document before you is a contract. However, how will you know if it is a legally enforceable contract? No matter which side of the agreement you are on, it’s important to understand that the document you are signing can be enforced if necessary.
As an example, let’s consider Thomas and Jeremiah. They run a consulting company that provides computer and technology services to companies that can’t afford their own IT Department. As new business owners, they did not understand the importance of a legally enforceable contract – until they got burned by a bad client. They immediately asked their business attorney to draft simple contracts for them and to review contracts that were awaiting their signature. They needed to be reassured that the contracts were binding and enforceable.
To Be a Contract . . .
The simple definition of the word ‘contract’ is:
“An agreement between private parties creating mutual obligations enforceable by law.”
In Alabama, contracts should be in writing. However, under certain circumstances verbal contracts may be allowed.
Generally, legally enforceable contracts must include the following
Offer and Acceptance
One party to the contract makes an offer to the other, which is then accepted. However, in bilateral contracts, each party promises to do something for the other.
Consideration
This is payment from one party to the other for performing the contract. Consideration does not have to be cash, though. In fact, consideration can include real property, personal property, or an action.
Capacity
This refers to a party’s age or mental ability needed to enter into the contract. For example, someone below the age of 18 may lack the capacity to make the contract. A person who suffers from Alzheimer’s disease may also lack capacity.
Legal Purpose
The contract must have a purpose that is legal. A contract that requires a party to engage in illegal behavior is probably not legally enforceable.
Would You Know a Legally Enforceable Contract if You Saw One?
The attorneys at Miller Estate and Elder Law use their business experience to assist clients with contracts and more. For a free consultation with an experienced Alabama attorney, contact us at 256-251-2137 or use our convenient Contact Form.
We have offices in Anniston and Birmingham and serve clients in Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Nov 2, 2018 | Veterans Benefits
Sometimes help is available. We just don’t know where it is or how to access it. Many veterans may not have heard of Aid & Attendance benefits, even though they desperately need those benefits. We can help you find out if you are eligible for Aid & Attendance benefits.
Aid & Attendance: Help for Veterans
This benefit, which is available to veterans and their survivors, is designed to help people who need “aid and attendance” with their daily activities. Aid & Attendance recipients receive an additional monthly benefit, over and above their pension.
Aid & Attendance recipients may not receive Housebound benefits, which are provided to veterans who cannot leave their homes because of a permanent disability.
For example, Josie noticed her father and mother were having more trouble taking care of themselves. Their clothes were unkempt, they had difficulty getting in and out of the bathtub. There was often no food in the refrigerator when Josie checked. Josie’s father received veteran’s benefits, including a monthly pension. Josie contacted the local VA office to see if help was available. She learned her father needed to meet certain requirements before receiving Aid & Attendance or Housebound benefits.
Aid & Attendance: Eligibility Guidelines
Veterans must meet at least one of the following requirements to be eligible for Aid & Attendance benefits:
- Veteran needs another person to help with daily activities such as “bathing, feeding, dressing, attending the wants of nature, adjusting prosthetic devices, or protecting yourself from the hazards of your daily environment.”
- Veteran’s disability or disabilities require the veteran to remain in bed. Bedrest prescribed for treatment or convalescence does not apply here.
- Veteran is a patient in a nursing home because of mental or physical incapacity.
- Veteran’s eyesight is very limited.
Josie’s father had demonstrated an inability to take care of his daily living activities. He was not bedrest or a nursing home resident. His eyesight was failing. Josie’s father might be eligible for Aid & Attendance. First, he has to apply.
Applying for Aid & Attendance Benefits Is Complicated
The attorneys at Miller Estate and Elder Law help many clients apply for Aid & Attendance benefits, as well as other government benefits like Medicaid. For a free consultation, contact us at 256-251-2137 or use our convenient Contact Form. Although we’re located in Anniston and Birmingham, we also help clients in Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Oct 29, 2018 | Probate
We all own something. Whether it’s the family china or a large retirement account or a boat, your property will be transferred to a new owner after you pass away. Most if not all of your assets will pass to your heirs through probate, unless you make other arrangements. Yes, there are ways to avoid probate in Alabama.
What happens during probate?
Someone will present the original Will to the probate court. This can be done by an executor, an heir named in the will, or any person interested in the estate, or anyone who has custody of the Will.
If there’s no Will, then someone will petition the court to be appointed as executor or personal representative of the estate. The person who is appointed will administer the estate but will not have the guidance of a Will.
The personal representative or executor will gather and manage the probate assets, notify creditors and assess creditor claims, pay valid claims against the estate, and distribute remaining assets to the appropriate heirs.
Why would I want to avoid probate?
One reason is that the heirs may have to wait weeks or months to receive their inheritance. Some estates do not fully settle for a year or more. This is not only frustrating but can leave your family short of cash to live on.
Probate proceedings can be expensive also. You will be paying an attorney, court fees, and other expenses that may occur.
Finally, most probate records are available for public review.
What can I do to avoid probate?
Fortunately, there are ways to avoid putting your family through a probate proceeding.
- Property Titles. You can title jointly owned property so that it passes directly to the other owner(s) after you die. They may have to fill out some paperwork but generally will not have to go through probate.
- Trusts. When you transfer ownership of assets to a trust, you set up a mechanism whereby those assets may pass directly to your beneficiaries.
- Beneficiary Designations. Most financial accounts and insurance policies offer the option of naming beneficiaries. After you pass away, the money remaining in the accounts typically does not become part of the probate estate. Instead, the financial institution typically gives the money directly to the named beneficiaries.
Consult with an Alabama Estate Planning Attorney.
Should you wish to know more about how to avoid probate in Alabama, the attorneys at Miller Estate and Elder Law have the experience you need to get the estate plan you deserve. Contact Miller Estate and Elder Law at 256-251-2137 to schedule an appointment or fill out our convenient Contact Form. We help clients in Anniston, Talladega, Birmingham, Gadsden and surrounding communities. Get a free copy of our book on the Basics of Estate Planning in Alabama.
by Bill Miller | Oct 26, 2018 | Estate Planning
We all make mistakes, great and small. Some errors are easy to fix. However, the person who flubs their estate planning may not have that option because the error shows up after they have become incapacitated or died. However, let’s look at some common estate planning mistakes and how to fix them now.
#1: Failing to Update Your Estate Plan
Estate plans should evolve to fit your life. After all your goals as a single young professional are far different than as a parent – or empty nester – or senior citizen. Major events like births, deaths, marriages, and divorces should trigger an immediate review of your estate plan. However, it’s better to have regular maybe even annual reviews of your plans.
For example, Blake and Tina prepared Wills 25 years ago. They figured there was no need to prepare new Wills or to engage in any other estate planning. They were wrong. During that 25-year time span, they had three children, built several businesses, bought real estate, and increased their net worth substantially. When Blake and Tina pass away, their families will be stuck trying to work their out-of-date Will.
#2: Failing to Coordinate Your Estate Plan with Beneficiary Designations
Much of an estate plan deals with finances – assets, money, financial accounts, and real property, for example. When a decedent’s assets become part of their probate estate, they are split according to the terms of the Will or according to Alabama intestacy laws.
However, not all assets become probate assets. Accountholders for financial accounts and insurance policies, for instance, typically name beneficiaries. Upon the accountholder’s death, funds remaining in the accounts are given to the beneficiaries instead of passing through probate.
You should sync your beneficiary designations with your estate planning to keep your estate in balance.
For example, Blake and Tina prepared a current, up-to-date estate plan several years ago. They then opened some financial accounts and purchased life insurance policies and named beneficiaries on the accounts. Unwittingly, they created a potential imbalance. As things stand, if Blake and Tina died together, their oldest son would receive more from their estates due to their beneficiary designations.
#3: Failing to Plan for Incapacity
Estate plans are not just about death. When someone becomes incapacitated and unable to make their own decisions, it’s important to have a durable power of attorney and an advance directive in place. Both of these documents name agents to take over for the incapacitated person. In addition, your Will has no effect until your death. However, you may set up a revocable living trust and name a successor trustee to take over if you become incapacitated.
For example, Jan’s estate plan consisted of a Will only. Jan later suffered a traumatic permanent brain injury and was unable to make decisions for herself. Her family was forced to ask a judge to appoint a guardian and a conservator to handle her affairs. Jan could have made things easier by addressing potential incapacity in her estate plan. In addition, she could have engaged in some Medicaid planning.
#4: Failing to Prepare an Estate Plan
This the biggest mistake of all. An estate plan protects you and your family.
The attorneys at Miller Estate and Elder Law help their clients develop estate plans that suit their circumstances. Contact Miller Estate and Elder Law at 256-251-2137 to schedule an appointment. Though our offices are in Anniston and Birmingham, we help clients in Talladega, Gadsden and surrounding communities.
by Bill Miller | Oct 24, 2018 | trust
Trusts come in different forms. Some are irrevocable, some are revocable. Some trusts transfer wealth from generation to generation, while others focus on probate avoidance. One of the most popular trusts is the revocable trust. It’s popular because of the advantages it offers. Like anything, though, revocable trusts have a few disadvantages also.
Revocable Trusts: The Basics
Like all trusts, a revocable trust is established and funded by someone referred to as a grantor or settlor. A trust documents sets out the details of the trust. The trust is funded by the grantor, then managed by the trustee. At least one beneficiary reaps a benefit from the trust.
Unlike irrevocable trusts, revocable trusts are fairly easy to change.
And Some Disadvantages
People seeking to add a revocable trust to their estate plan also must consider some of the disadvantages, including:
- Front-End Expense. Creating a trust typically is more expensive than writing a Will. However, using a trust-based estate plan usually saves money because the trust assets transfer to heirs without going through probate.
- Fewer Tax Advantages. Other trusts and financial plans are more likely to lower the grantor’s tax bill than a revocable trust.
- No Asset Protection. Since the grantor still controls the trust assets, they remain vulnerable to the grantor’s creditors and to civil judgments. An irrevocable trust may be a better option is asset protection is a concern.
Generally, the grantor of a revocable trust should frequently review his or her estate plan. Changes to laws, family circumstances, or finances could lead to altering, replacing, or eliminating the trust.
For example, Gary and his wife, Elaine, prepared an estate plan several years ago. At the time, they chose to go with a Will-based plan. However, their attorney recently suggested they set up a revocable living trust specifically to avoid probate. As they considered the pros and cons of revocable trusts, they realized that at this time a revocable trust was a great option for them.
Trusts are Complex
Schedule a consultation with one of the attorneys at Miller Estate and Elder Law Find out whether a revocable trust will work for you. Our phone number is 256-251-2137, or you may want to use the Contact Form on our website. We have offices in Anniston and assist clients in communities like Hoover, Vestavia Hills, Irondale, and Calera.
