by Bill Miller | Jul 20, 2018 | Estate Planning, trust
Frank had heard about trusts and though he might want to set one up. Researching trusts online just confused him. There were so many types of trusts. However, he did learn enough about living trusts and testamentary trusts to know he wanted to learn more. Frank made an appointment with his attorney to see which one might be right for him.
What’s the Difference?
It comes down to when the trust is actually established.
A testamentary trust is established by an individual’s Last Will and Testament (the Will). The person who signed the Will, the testator, does not create and fund the trust during his or her lifetime. Instead, the trust is set up when the testator’s Will is probated.
The term “living trust” says it all. Also called an inter vivos trust, a living trust is established while the grantor is still alive.
Testamentary Trust Details
This type of trust offers most of the same advantages of any trust. For example, many trusts are used for asset protection. A testamentary trust can be set up to protect an estate from its heirs’ frivolous financial behavior. Giving some beneficiaries a large lump sum inheritance is a recipe for disaster.
More than one testamentary trust can be set up through a Will. For example, Frank might want to set up one trust for his son and one for his daughter.
The trustee of a testamentary trust acts like any other trustee. In other words, the trustee manages the trust assets. Heirs are not always ready to manage assets passed down through a Will. The trustee can distribute trust assets according to the terms of the trust, but also keep an eye on the beneficiaries.
Beneficiaries may enjoy some important tax advantages by receiving their inheritance through a testamentary trust instead of a lump sum. Distributions may be spread out to minimize the tax burden.
Still Have Questions About Using a Testamentary Trust?
Frank decided that a testamentary trust was right for his estate based on his attorney’s advice. If you are interested in establishing a trust, contact a qualified Alabama estate planning attorney today.
The attorneys at Miller Estate and Elder Law assist their clients with all phases of estate planning. For a free consultation, contact us at 256-251-2137 or use our convenient Contact Form. Although we’re located in Anniston, we also help clients in the Birmingham, Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
by Bill Miller | Jul 17, 2018 | Estate Planning
Watching a family fight over a loved one’s Will is heartbreaking. Take Marjorie J.’s family. When Marjorie passed away last year, she left behind a pretty nice estate. She intended her property and money to go to her family – or, at least, some of them. However, several people were shocked to learn they were not even mentioned in the Will and would receive nothing. They began to question whether Marjorie’s Will was valid. The stage was set for an expensive, disheartening courtroom battle.
If only Marjorie had known there were ways to avoid a Will contest.
Include a No-Contest Clause
Marjorie picked up a form to use for her most recent Will. The form was okay, as far as it went. However, it did not have a no-contest clause that could have headed off any future Will contests.
This clause states that anyone who challenges the Will loses their inheritance. No-contest clauses are usually upheld in court. Marjorie’s son, for example, files a lawsuit challenging her Will. He lost the lawsuit and the money he would have inherited.
One thing to remember if you want to put a no-contest clause in your Will: for someone to lose their inheritance, they must be receiving something. If you plan to use a no-contest clause, it’s best to leave a small sum to the people you think will contest the Will. This might discourage them from fighting it.
Communicate with Loved Ones
It is not always easy to talk about estate plans with family members. But it is necessary. Keeping your family informed can help manage their expectations. This is especially true if you plan to disinherit someone. In fact, failing to mention why you are disinheriting someone could lead to a Will contest.
For example, Marjorie had given her son a lot of financial support throughout the years. Her daughter had never needed any help, though. So, Marjorie left the bulk of her estate to her daughter to “even things out.” Had she explained this to her son, or even just mentioned it in her Will, he might have handled it better.
Explore Trusts
Sometimes a Will is not the best way to pass your property to your heirs. Trusts offer tax benefits and confidentiality. They are also less likely to be contested.
Marjorie did not speak to an attorney about trusts. She felt they were only for really wealthy people. However, passing her property through a trust may have been a better choice.
Consult with an Alabama Estate Planning Attorney.
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
by Bill Miller | Jul 6, 2018 | Estate Planning, Medicaid, Medicaid Planning
At age 98, Jamison truly is his family’s patriarch. His children want him to attend the annual family reunion. The problem? Jamison lives in Alabama. The reunion is in Texas. Although he does not live in a nursing home, Jamison requires some skilled nursing care and is legally blind. They are concerned that Jamison’s Medicaid benefits will not pay for medical services while he is away from Alabama.
Jamison’s family is right to be worried. Although the funds for Medicaid benefits come from the federal government, individual states manage Medicaid for their citizens. Jamison’s Medicaid benefits, then, are administered by Alabama Medicaid. Individual states are allowed to develop their own rules and regulations, as long as they comply with federal regulations.
It’s the Law
Federal law at 42 CFR 431.52 provides that state plans will pay for services provided to Medicaid recipients who are temporarily out-of-state. However, the following conditions must be met:
(1) Medical services are needed because of a medical emergency;
(2) Medical services are needed, and the beneficiary’s health would be endangered if he were required to travel to his State of residence;
(3) The State determines, on the basis of medical advice, that the needed medical services, or necessary supplementary resources, are more readily available in the other State;
(4) It is the general practice for beneficiaries in a particular locality to use medical resources in another State.
The law goes on. States are required to establish procedures so individuals who are eligible for Medicaid under another state’s program can receive medical services.
But It May Not Be Easy
Note that medical costs incurred during an emergency are covered. This means that individuals may be billed for services related to non-emergencies, unless that care fits the other criteria listed above. Also, the out-of-state provider has to enroll as a provider with the Alabama Medicaid Agency. And, finally, some services have to be pre-approved.
Medicaid Is a Complex Program.
Schedule a consultation with one of the attorneys at Miller Estate and Elder Law, and find out where you stand. Our phone number is 256-251-2137, or you may want to use the Contact Form on our website. We have offices in in Anniston and Birmingham and assist clients in communities like Hoover, Vestavia Hills, Irondale, and Calera.
by Bill Miller | Jul 4, 2018 | Estate Planning
Sometimes an estate plan no longer fits. Your life changes, sometimes without warning, and you have to act fast. When this happens, you need to know how to revoke your estate planning documents.
Basic Estate Planning
Three documents typically serve as foundation for an estate plan:
- Last Will and Testament (“Will”),
- Durable Power of Attorney, and
- Medical Power of Attorney.
These documents must comply with Alabama law in the way they are drafted and signed. But did you know there are laws about how to cancel them also?
Changing Your Mind and Your Documents
You may have several reasons for modifying your estate plans. For example, major life events trigger estate plan reviews and those reviews may lead to major changes:
- Marriage,
- Divorce,
- Birth,
- Death,
- Change in financial status,
- Change in family relationships,
- Agents or personal representatives need to be changed,
- Moving to another state
So, if you experience a major life event – or just change your mind – how can you revoke estate planning documents you already have in place?
Last Will and Testament. It’s possible to make minor modifications to your Will by preparing and signing a Codicil. This becomes an addition to your Will. Generally, your previous Will is revoked by any new Will you sign. You can also revoke a Will by any of the following means: burning, tearing up, cancelling, obliterating, or destroying.
Someone other than the testator can destroy the Will. However, the testator must direct the destruction or consent to it willingly before two witnesses.
Durable Power of Attorney. Authority granted under a power of attorney terminates if the principal:
- Dies,
- Becomes incapacitated,
- Revokes the power of attorney,
- Provided a specific termination date in the power of attorney itself,
- Provided a specific purpose for the power of attorney that has been accomplished.
It will also terminate if the agent dies or becomes unwilling or unable to serve. In addition, a fiduciary or a court may terminate the power of attorney. And if the principal and agent were married, the authority is revoked if the marriage is dissolved or annulled.
Medical Power of Attorney. According to Alabama law, the principal can revoke a medical power of attorney in writing, signed and dated. The power of attorney can also be destroyed by the principal. There should be at least one witness age 19 or older and the principal should state his or her intention is to revoke their power of attorney.
Review Your Estate Plans Regularly.
The attorneys at Miller Estate and Elder Law understand the estate planning needs of their clients. 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 | Jun 30, 2018 | Estate Planning
Margie’s move from Arizona to Anniston was exhausting. As she unpacked, she ran across the binder containing the estate planning documents she had drawn up years before in Arizona. She tucked them away in her home office, but later wondered if her out-of-state Will would still be valid under Alabama law. That was a good question to ask, because estate planning laws do vary from state to state.
Basic Will Terminology
A Last Will and Testament is commonly known as a Will. There are different types of Wills and Will provisions that may be used depending on the situation.
The person making the Will is called the testator.
Heirs may also be known as beneficiaries, inheritors, distributees, or devisees. No matter what you call them, they are the people who receive the testator’s property after death.
Probate is a legal proceeding held after the testator has passed away. During probate, the testator’s estate will be settled, which means that claims have been paid and property distributed to heirs.
An executor settles the estate of the testator through probate. Executors may also be known as personal representatives or administrators.
What Makes a Will Valid in Alabama?
The Code of Alabama spells out the law regarding Wills:
- Anyone who is age 18 or older and of mind can make a Will.
- Wills must be in writing, signed by the testator or someone directed to sign by the testator who signs in the testator’s presence.
- Will must be signed by at least two people who have witnessed the signing of the Will.
- Witnesses must be competent to act as witnesses. (Note: Wills are not invalid if witnesses also benefit from the estate. However, this practice is discouraged.)
Alabama Code does consider an out-of-state Will to be valid if it was considered valid under the other state’s laws. However, any major life event – like moving – should trigger a review of your estate plans.
Have Your Out-of-State Will Reviewed by an Alabama Attorney.
The attorneys at Miller Estate and Elder Law understand the estate planning needs of their clients. 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 | Jun 26, 2018 | Estate Planning
As we pass through life, we make memories, build families, and learn life lessons. Some memories may bring a smile to your lips and a tear to your eyes. Even if you’ve been entertaining and instructing family for years, it’s still time to consider writing an ethical will.
Isn’t My Regular Will Enough?
An ethical will may also be known as a legacy letter. It’s something in writing, a written expression, that your family may cherish for years. No matter how well you communicate, it’s unlikely you’ve told every family member every little thing about your life. Well, you can include those details, memories, and lessons in your ethical will.
Some of the things you may want to include are:
- Your complete family history.
- A detailed personal history.
- The theories, beliefs and opinions you hold dear.
- Things you’ve done that you are particularly proud of.
- Actions your loved ones have taken that made you proud, but you somehow never talked about.
- Lessons you learned from your parents, grandparents, aunts, and uncles.
- Secrets about your early years that may delight your family.
There’s no wrong way to write your ethical will. Remember, this is not a legally binding document like your Last Will and Testament.
Won’t Writing This Will Take A Long Time?
It’s probably not something you can do in one sitting. Spend some time reflecting on your life. Start a journal or diary and jot down what you think is important. Then, when you are ready, start writing.
Organizing your thoughts is more important than the format you use. You could sort your information into categories or include subheadings like “Our Family History” or “My Early Years.” Keep your ethical will safe by storing it with your other estate planning documents.
When Should I Write My Ethical Will?
That’s up to you and where you are in life right now. People just starting their life’s journey may want to start keeping a journal now. Others may just write their ethical will as important milestones happen.
Make Your Estate Plan Complete.
Estate planning documents give their makers an opportunity to state their final wishes, or what type of medical treatment they want, among other things. While it’s not a legal-binding document, an ethical will can be an important part of your estate plan.
The attorneys at Miller Estate and Elder Law help their clients develop comprehensive estate plans customized to meet their needs. For a free consultation, contact us at 256-251-2137 or use our convenient Contact Form. Although we’re located in Anniston, we also help clients in the Birmingham, Gadsden, Hoover, Talladega, Vestavia Hills, and surrounding areas.
