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 When Blake and Tina pass away, their families will be stuck trying to work their out-of-date Will.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.
by Bill Miller | Oct 22, 2018 | Business
Sometimes we know something exists, but don’t know how to get to it. For example, Bart and Beatrice were in the early stages of planning their new business. They had heard of limited liability companies, or LLCs, but had no idea how to form an Alabama LLC. Bart and Beatrice need to find out what an LLC is, whether it is the right business entity for them, and what steps they must take to form one.
LLC: One Type of Business Entity
Generally, a business will be one of the following structures:
- Sole proprietorship,
- Partnership and limited partnership
- Corporation (profit or non-profit),
- Registered limited liability partnership,
- Limited liability partnership, and
- Limited liability company (LLC).
Each structure varies, usually in management, ownership, formation, and taxation. But we are specifically interested in the LLC structure.
Owners of LLCs enjoy the following advantages:
- Personal assets are protected from LLC obligations.
- Formation is fairly easy and inexpensive.
- Avoiding the double taxation structure of corporations.
State laws vary on forming a business. The Alabama Secretary of State website offers some assistance.
Forming an Alabama LLC
To get your business entity started, you’ll need to do the following:
- Research your business name. and file a Certificate of Name Reservation. Then, you will file this with the county probate judge where the LLC’s office is located. Note that your business name must include the words “Limited Liability Company” or LLC.
- Next, file the original and two copies of a Certificate of Formation. Again, this is filed in the county where the LLC maintains a registered office.
- Always check with the probate judge or clerk’s office before filing any documents. For example, you may need to file the original and several copies. Also, not all judges collect fees for the Secretary of State’s office.
Once your LLC is formed, you can get down to business!
Learn More About How to Form an Alabama LLC. Talk to an Alabama Business Lawyer.
At Miller Estate and Elder Law, we make it our business to put our client’s needs first. We assist our clients in making legal decisions regarding their business interests. For a free consultation, contact us at 256-251-2137 or use our convenient Contact Form. We have offices in Anniston and we assist clients in the Leeds, Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Oct 19, 2018 | Medicaid
As they age, many people prefer to remain independent and stay in their own homes, even if they need skilled nursing assistance. Although home health care is less expensive than residential 24/7 care, the cost is still high for many people. If you or a loved one need home health care, it’s important to answer the question, “Does Medicaid pay for home health care?”
Medicaid: The Basics
You very likely have heard of Medicaid. Although many people confuse Medicaid and Medicare, they are completely different programs.
Medicaid is funded by the federal government. However, each state manages their own Medicaid program. In fact, states may vary in the type of coverage they offer.
Medicaid Home Health Care Programs
Alabama Medicaid offers a wide range of services to people who qualify for Medicaid. Several programs provide coverage for care given at home:
- Elderly and Disabled (E&D) Waiver Program. As you can tell from the name, this program provides services for Medicaid recipients who are elderly and/or disabled. In fact, a person who needs a level of care typically given in nursing homes may qualify for this program. Services includes homemaker services, personal care, skilled and unskilled respite care, home delivered meals, and adult companion services.
- State of Alabama Independent Living Waiver (SAIL) Program. An adult who wants to stay at despite qualifying for nursing home care may be accepted into this program. However, this program is for people with certain specific medical conditions. While not a complete list, the following diagnoses are covered: traumatic brain injury, multiple sclerosis, muscular dystrophy, substantial neurological impairments, debilitating diseases, and rare genetic disorders. Recipients may receive personal care services, environmental accessibility adaptations, and medical supplies, assistive technology, to name a few.
- Alabama Community Transition (ACT) Waiver. This program helps Medicaid recipients currently in residential care transition to a home or community setting. Services include transitional assistance, personal care, homemaker, home delivered meals, skilled nursing, and medical equipment.
Home Health Care for Other Disabilities
In addition, programs for intellectual disabled individuals offer assistance in living at home or in a community setting:
- Home and Community-Based Waiver for Persons with Intellectual Disabilities (ID). This program assists people who are at least age 3 who have been diagnosed as mentally retarded. In addition to Medicaid income and resource qualifications, individuals must need intermediate care facility care and have an IQ of 70 or lower. This program provides a number of services, including group home facilities, supported employment, physical therapy, companion services, personal care, skilled nursing, and specialized medical equipment.
- Living at Home (LAH) Waiver for Persons with Intellectual Disabilities. Again, individuals in this program mentally retarded and at least 3 years old. Services include personal care, prevocational services, occupational therapy, skilled nursing, specialized medical equipment and supplies.
Of course, knowing about these home health care programs is not enough. You have to be a Medicaid recipient first.
Applying for Medicaid Can Be Frustrating. We Can Help.
The application process for Medicaid is a difficult path for most people to navigate. However, the attorneys at Miller Estate and Elder Law help many of their clients every step of the way.
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 serve clients in Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Oct 17, 2018 | Business
When two things are similar, yet distinctly different, choosing between the two can be difficult. Take non-compete and non-disclosure agreements, for example. It’s important to know the difference between the two to make sure your business is as protected as possible.
Legally Speaking
Non-compete and non-disclosure agreements are both contracts. The parties signing the agreements intend to protect something. Non-compete agreements may protect a company against unfair competition while non-disclosures protect a company’s confidential information.
These agreements are not mutually exclusive. In other words, a business owner may use a non-compete, a non-disclosure, or both. It just depends on the situation.
Employers Use Non-Compete and Non-Disclosure Agreements
A business owner may have employees sign a non-compete agreement, often on or before their first day at work. The employee, then, is prohibited from working for competitors or from starting their own business within an industry or geographic area.
Additionally, companies typically maintain information that should be kept confidential. For example, sales strategies, client lists, reports, new product details, and research results may be safeguarded from accidental or intentional disclosure. An employee who signs a non-disclosure agreement is agreeing not to share or misuse their employer’s confidential information.
An employee may sign both a non-disclosure agreement and a non-compete. Although the non-compete is probably most often used with employees, companies sometimes use non-disclosure agreements for other reasons.
Other Business Uses for Non-Compete and Non-Disclosure Agreements
The basic use of a non-disclosure is to prevent the inappropriate distribution of confidential information. Employees are not the only parties that may be asked to sign a non-disclosure.
Non-disclosures may also be used during negotiations, collaborations with other companies, and discussions with potential investors or lenders. There are two basic forms of non-disclosures:
- One Way agreements are used when only one party has provided confidential information.
- Two Way agreements are used when two parties exchange information.
For example, a company sharing confidential data while raising capital may require the other party or parties to sign a non-disclosure. However, companies involved in a merger negotiation may both be required to sign non-disclosures.
Talk to an Attorney About Your Non-Compete and Non-Disclosure Agreements
The attorneys at Miller Estate and Elder Law assist clients like you with their business concerns. 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.
