Estate Planning FAQ

Every estate plan should have certain documents depending on your goals and objectives.  Everyone should have a Durable Power of Attorney, Advanced Directive for Healthcare and a Will and/or a Trust.  Each one of these documents does something different and no plan is complete without all three of them.  Watch this video to learn more.

A Durable Power of Attorney is a legal document that gives someone else authority to act legally on your behalf.  A durable power of attorney means that the authority for the other person to act is still valid even if you later become incompetent or incapacitated.  The power of attorney authorizes the other person to do anything you authorize them to do including cash checks, pay bills, sell property among other things.  It is a a very important part of even the most basic estate plan.  Watch this video to learn more.  Watch this video to learn more.

An advanced directive for healthcare is a legal document that gives directions on what to do regarding your end of life decisions if you are not able to make those decisions.  The document typically contains a living will and a medical power of attorney.  In the living will, you state your wishes regarding end of life medical decisions like whether you want to be on a respirator or feeding tube if you are permanently unconscious or terminally ill.  The medical power of attorney authorizes someone else to make medical decisions and carry out  your wishes if you are not able to do so.  For example, you may be physically healthy but suffering from dementia and not able to make decisions regarding you healthcare.  Your medical power of attorney would be authorizied to make those decisions for you.  Watch this video to learn more.

A Will is a legal document that spells out your final wishes including what to do with your property when you pass away.  A will only governs what you own in your own name when you pass away.  All property that passes through your will must go through the probate court.  If you do not have a will, the State of Alabama decides what happens to your property when you die.  A will does not go into effect until you pass away.  Watch this video to learn more.

Probate is a court proceeding to handle things when someone passes away or becomes incompetent or incapacitated.  The probate court handles matters like guardianships and conservatorships for those who need someone to manage them and their money if they become incompetent.  The probate court also administers estates when someone passes away.  If you have no will, it is called an estate administration.  If you do have a Will, probate is designed to insure that the assets you own in your name at death pass correctly to your heirs. It is subject to court rules and procedures and of course costs time and money. Often, it can be a troublesome process depending on family dynamics and the complexity of the estate. Probate can be avoided entirely by using trust based rather than will based planning and by having a power of attorney and advanced directive for healthcare. Click to watch a video to learn more about Probate in Alabama.  Watch this video to learn how to avoid probate Alabama.

Many people put their children’s names on their bank accounts so they can access the money if necessary.  The problem is that when you make someone else, including your kids, a co-owner of your accounts, your money is at risk to their creditors.  For example, if your son is on your account and he later divorces, your money could be lost in the divorce.  Your assets are also at risk to lawsuits, bankruptcies, tax liens and other creditors.  It is usually very risky and not advisable to put your kid’s names on your bank accounts.   Watch this video to learn more.

There are number of ways to approach this issue. However, one of the best ways is to create instructions in your Trust or Will for your trustee or personal representative to create an LLC in the state of the Cabin/Lakehouse (“getaway property”) and deed the property to the LLC. An operating agreement spelling out how it will be used and managed is attached as an addendum. The beneficiaries will receive their membership in the LLC upon acceptance of the operating agreement. The LLC can have an indefinite duration unlike the trust itself and is simpler than a corporation and presents less risk of liability, forced sale by a beneficiary and other issues as opposed to leaving it jointly to the beneficiaries.

This is seldom the best approach for a number of reasons. First, you give up control You know longer can decide to sell or borrow against the home without there consent and participation. Secondly, the tax consequences to the recipient child or children is potentially disadvantageous as opposed to inheriting the property. This is because of capital gains tax on the profit or appreciation in value. When you gift your home to the children in your lifetime, they receive your basis in the property (what you have invested in the purchase and improvement). If the property has gone up in value over the years and they sell it for more than you had invested in it, the difference is capital gain subject to tax. If they inherit the property, they receive what is call a step-up in basis which the value at the time of inheritance. This would be the higher appreciated value reducing the gain for tax purposes.  Watch this video to learn more.

First a trust is an entity you create in which to own and manage your money and assets. There are different types and the revocable is a popular alternate to will planning since it does not require Probate to distribute your assets at death. It also has great flexibility in that you can contribute or remove assets at your discretion or shut it down entirely if you were to decide to do so. It also provides privacy and allows you to distribute without filing a court proceeding that is public record.  Watch this video to learn more.

A will typically takes 8 months to a year to probate in Alabama.  However, it can take longer if all of the heirs do not agree on things and you have to have court hearings.  The more “contested” the process is, the longer it takes.  Initially, it takes a month or so to get the paperwork filed to get “Letters Testamentary” issued so that the personal representative has the authority needed to act on behalf of the estate.  Once those are issued, you have to give notice to known creditors and post notice in the newspaper to unknown creditors.  They have 6 months to file their claims.  There are other issues that can affect the time it takes to probate a will in Alabama but 8 months to a year is about the average time.