by Bill Miller | Jan 21, 2019 | Estate Planning, Uncategorized
A Trustworthy Person Standing in Your Shoes Right Now
Michael was having a wonderful time in Florida while he waited for his Alabama house to close. Unfortunately, he took a bad fall and ended up in a Florida hospital. He had his Alabama power of attorney, but the problem was that it was a springing power of attorney. The powers were only effective if Michael lost capacity. Michael’s capacity was fine, it’s just that he wasn’t in Alabama when an offer on the house came through.
Power of Attorney
A power of attorney is a legal document that allows someone else to stand in your shoes. It allows them to speak and act on your behalf. A document that is effective immediately – even if you’re perfectly capable of managing your own affairs at the time – is the better choice in most cases. Michael should have designated an Alabama agent with immediate powers. The document should be comprehensive enough to authorize the agent to conduct real-estate transactions on Michael’s behalf.
A document like Michael’s, however, that “springs” into life only on incapacity, would not serve him as he needed. And even if Michael had lost capacity, a doctor would still have to certify that he could no longer make his own decisions. This would cause delay and uncertainty, when swift action was required instead.
Get a Trustworthy Person to be Your POA
Many are concerned that if they have a power of attorney that is immediately effective, their agent will abuse privileges that aren’t even needed at the time. This is a sign, however, that they don’t trust that person. And after all, it’s better to be alert and aware if such a thing should happen, instead of discovering the problem only when you’ve lost capacity and it’s too late. Making sure to name a trustworthy person to serve as power of attorney is often better that using a spring power of attorney.
An experienced attorney can help you find your way through many such pitfalls. Please give us a call at 256 251-2137 to learn how we can help. You can also learn more about powers of attorney and other estate planning documents by getting a free copy of our book – The Basics of Estate Planning in Alabama by at www.AlabamaEstatePlanningGuide.com.
by Bill Miller | Nov 29, 2018 | Estate Planning, Probate
One of the many benefits associated with estate planning is that you get to choose who gets your stuff after you are gone. However, that generally only works if you have actually done an estate plan! Someone who passes away without leaving a valid Alabama Will has lost the opportunity to voice their final wishes. Don’t let the state use Alabama intestacy succession to choose your heirs. A simple Will or trust lets you make all the decisions beforehand.
Intestacy and Probate
Someone who dies without leaving a valid Will is called “intestate.” Whether there’s a Will or not, the deceased person’s estate still has to pass through probate in most cases. However, depending on the size of the estate and family circumstances, probating an intestate person’s estate can be more complicated and more expensive when there’s no Will.
And your probate assets will be distributed according to state law, not the way you would have wanted.
Alabama Intestacy Succession Law
Property in an intestate estate pass to heirs based on Alabama law. Two of the factors that determine “who gets what” are:
- Whether the decedent was married, and
- Whether the decedent had any descendants.
Intestacy succession in Alabama provides for the estate’s distribution as follows:
| If decedent is survived by: |
Then probate assets pass: |
| a spouse, but no children |
entirely to spouse |
| a spouse, no children, parent or parents |
first $100,000 to spouse, then one-half of the rest |
| a spouse, children of decedent and spouse |
first $50,000 to spouse, plus one-half of the balance |
| a spouse, children of decedent but not surviving spouse |
one-half of the estate to the spouse |
| children of decedent |
in an amount based on degree of kinship to decedent |
| parents, but no spouse or children |
equally to the parents |
| no spouse, children, or parents |
to other children of parents (siblings) |
| no spouse, children, parents, or siblings |
to grandparents or children of grandparents based on degree of kinship. |
Not Having a Will Just Makes Everything More Complicated
Intestacy succession does not apply only when the deceased person didn’t leave a valid Will. In fact, a decedent’s probate assets that are not addressed in the Will may pass to heirs according to intestacy succession laws. It pays to make sure your Will is valid and up to date.
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. contact us at 256-472-1900. Miller Estate and Elder Law is now located at 818 Leighton Avenue in Anniston, but we serve clients in Leeds, Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Nov 24, 2018 | Estate Planning, Medicaid, Medicaid Planning
Some things just don’t go together, like oil and water or peanut butter and sardines. Sometimes it’s not a big deal – or the resulting problem is minor. But when something as important as your Medicaid eligibility is involved, that’s a different story. For example, do-it-yourself estate planning and Medicaid don’t mix at all. Here’s why:
What is DIY estate planning?
DIY stands for do-it-yourself. Americans are fond of taking on DIY projects ranging from planting an herb garden to building an addition onto their homes. However, your estate plan may be a lot more complicated and last a lot longer than the deck you built last year.
Due to the Internet, exposure to do-it-yourself estate planning has increased. People can click a few buttons and have a Will ready for signing. But DIY estate planning cannot analyze your particular circumstances, personalize your estate plan, listen to your concerns, and give information specific to special situations.
And it’s unlikely that DIY estate planning can address the need to plan for Medicaid eligibility.
What happens if you need Medicaid
Planning for expensive medical treatments, including long-term care, must begin before you need that care. DIY typically does not take that into account. You need an attorney who can review the facts of your case, then use knowledge of the law and experience to find the best options.
For example, a website algorithm may not take into account the Medicaid five-year look back period. Medicaid case workers will review an applicant’s financial history for 60 months prior to the date of application. Someone who uses DIY estate planning may sign the Will, then give assets to family members to decrease the value of his or her estate. Property may be titled or transferred in such a way that Medicaid eligibility is not affected. If done improperly, transfers or gifts made within that look back period may decrease, delay, or even prevent Medicaid benefits.
A lawyer who knows Medicaid can offer advice on how to avoid such penalties.
Medicaid Rules and Requirements Are Complicated
Don’t let DIY estate planning stand in the way of receiving benefits you deserve. Schedule a consultation with one of the attorneys at Miller Estate and Elder Law. Our phone number is 256-472-1900. Miller Estate and Elder Law is now located at 818 Leighton Avenue in Anniston, but we serve clients in communities like Hoover, Vestavia Hills, Irondale, and Calera.
by Bill Miller | Nov 14, 2018 | Estate Planning
Holidays and families seem to go together, even when things are not perfect. For example, as Molly looked across a holiday table surrounded by family, she worried about their futures. Her son was there with his daughter, who was intellectually disabled. Molly’s daughter arrived with her second husband and the two children from her first marriage. Her younger son seemed to be doing okay, except that he often borrowed money from her. Molly wondered how her family would survive after she was gone. Would they make the right decisions and have the support they needed? She decided it was time to talk to her family about estate planning.
Talk About Your Estate Planning
An estate plan doesn’t just affect you – your family’s future also may depend on it. While it is not necessary, or even a good idea, to discuss every detail of your estate plan, your family needs to know the following:
- The name and contact information of your estate planning attorney;
- Where your estate planning documents, both originals and copies, are kept; and
- As much of your plan as you feel comfortable talking about.
You could meet with your family as a group. However, if your Will contains anything that might be upsetting, you might consider meeting with your family individually. In addition to your own plans, you could use this time to discuss another important topic – their plans.
Talk About Their Estate Planning
Since every adult needs to have an estate plan, this may be the perfect opportunity to encourage your family members to do their own. A basic estate plan typically consists of the following documents:
- A Last Will and Testament,
- A durable power of attorney, and
- Some form of advanced directive, like a health care power of attorney and living Will.
Estate plans are not just about death, though. A durable power of attorney names someone who may act on your behalf in legal and financial affairs if you become incapacitated. An advanced directive allows you to name someone to make medical decisions for you if necessary.
Trusts are also an option, with a revocable living trust being one way to transfer assets quickly to family members by avoiding probate. Also, trusts can address specific situations in your family.
For example, Molly’s son has a child with special needs. In addition to basic estate planning, he may establish a special needs trust for her future care. Molly’s daughter may use a trust to protect her children’s inheritance if she passes away before her second husband. And Molly’s youngest son should have his own basic estate planning, but Molly may also want to establish a spendthrift or discretionary trust to protect his inheritance.
Do You Need to Talk to Your Family About Your Estate Planning?
First, you need to actually have an estate plan! For a free consultation with an experienced Alabama estate planning attorney, contact us at 256-472-1900. Miller Estate and Elder Law is now located at 818 Leighton Avenue in Anniston, but we serve clients in Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
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 5, 2018 | Estate Planning
Can you imagine letting a stranger make decisions that affect your loved ones? That’s what happens, however, when you pass away without leaving a valid Will. Like it or not, most if not all of your estate will go through probate. Without the guidance and instructions of your Will, a judge will decide how your estate will be distributed according to the intestacy laws of Alabama. Why let the state do your estate planning when you can do it yourself?
What Is Intestacy?
Intestacy is just a word that means someone died without leaving a Will. Even though there’s no Will, a deceased person’s estate will become probate estate assets – with some exceptions. For example:
- Beneficiary Designations. Financial accounts and insurance policies may name beneficiaries who will receive the funds in the account outside of the probate proceeding.
- Property Titles. Property may be owned jointly. If property is owned jointly with right of survivorship, the property typically becomes the sole property of the surviving owner(s) upon one owner’s death.
- Trusts. The deceased person may have transferred property to one or more trusts. Trust assets may pass to beneficiaries immediately upon the death of the trust grantor, depending on the terms of the trust.
Other assets typically become part of the probate estate. If there’s no Will, property passes according to Alabama law.
Sometimes, that’s a problem.
How Does Property Pass If There’s No Will?
If there’s a surviving spouse, then he or she typically is entitled to at least part of the estate. The Alabama Probate Code lays out the following progression:
- When the decedent left children behind, the estate passes based on whether they are the children of the surviving spouse also.
- When the decedent was not surviving by spouse or children, then his or her parents will inherit.
- If there are parents either, then to the children of the decedent’s parents. Usually, that will be the decedent’s siblings.
- And so it goes. Next in line would be the grandparents, then descendants of the grandparents.
- If there are no heirs, then the estate passes to the State of Alabama.
This is a simple explanation of laws that can be quite complicated.
It’s all carefully spelled out in the Alabama Probate Code. However, the person who passed away may not have wanted their estate to be distributed according to state law. By failing to leave a Will, though, the decedent lost the opportunity to state how their estate would be distributed.
Avoiding Intestacy
It’s fairly simple – prepare and sign an estate plan! Then remember to review it every so often and definitely after any kind of major life event.
The attorneys at Miller Estate and Elder Law help clients like you develop estate plans that meet their needs. For a free consultation, contact us at 256-251-2137 or use our convenient Contact Form. We also offer free workshops and guides with more information about topics that matter to you. Although we’re located in Anniston, we also help clients in the Birmingham, Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
