Estate Planning and Probate
A failure to plan is a plan for failure! This idea was advanced by Benjamin Franklin and still holds true today. Estate planning is far more than just a will that you lock away for use when you die. A well-crafted Alabama estate plan can provide you and your family with security and peace of mind. Let our firm show you how wills, trusts, and proper planning is beneficial both pre- and post-death. A comprehensive estate plan will have proper beneficiary designations on POD (payable on death) assets, life insurance policies that are current, a well drafted and updated will, a power of attorney and an advanced directive for health care (living will and health care proxy). Proper estate planning puts you in charge of your legacy and can save your loved ones frustration and delay when managing your affairs after you pass away or become unable to express your wishes.
If you have prior wills, trusts, life insurance policies and payable on death accounts, please either bring these to the initial consultation or make our firm aware you have these.
Once you have your estate plan in place then you must review or update your plan on a periodic basis. We recommend every five years or when major life events occur, such as marriage, births, divorce, death or job changes just to name a few. Our firm will review your current plan to examine whether changes need to be made. Finally, and as equally important, after you have your estate plan documents in place you need to have them in a safe, secure location that is readily known to either your spouse, the person you have chosen to be your personal representative (or executor) or a trusted family member or professional.
The best estate plans and insurance policies are ineffective if your loved ones cannot locate them quickly after your death. Our firm will work with you to create a binder or portfolio with all the vital documents that will be needed to put your hard work and planning into action. Included in this portfolio should be any other final instructions you wish to leave, your passwords to any accounts or important information, and the location and account numbers to all financial accounts and life insurance policies.
An updated and properly drafted will is the center of a comprehensive estate plan. Our firm will provide you with a Will Preparation Checklist to guide you through the choices available to you. A will is a state specific document and the requirements for an Alabama specific will are found in Title 43 of the Code of Alabama. Our firm guides individuals and married couples through the planning, drafting and execution of a detailed Alabama specific will.
Whether you are single, married with young children or in your golden years, we can help you create or refine your will so that your wishes are honored in an efficient manner that preserves your assets for your loved ones. We will guide you through the process of choosing a personal representative (also called an executor) and any alternates, a guardian for minor children, a property guardian for minor children or whether your will should have any trust provisions and what constitutes a responsible trustee. We also explain to you the tax and probate consequences of your choices with the property distribution under your will.
Whether you need a will for the first time or you need to update or amend an existing will contact us today.
Our firm works hard to enhance our clients’ understanding of a trust and whether one is needed. On a basic level, a trust is a written arrangement where one party (trustee) holds party on behalf of or for the benefit of another party (beneficiary). Trusts are created by an individual (settlor) who seeks to pass property to another without giving that person actual control. A trust beneficiary could be a minor child, a teenager or even an adult in certain situations.
Our firm will help you choose whether you need a living trust or a testamentary trust. A testamentary trust is included in a will disposing of property per the terms of the trust. Examples of trust documents our firm can assist you with are:
- Trusts that benefit minors under age 19.
- Special Needs Trusts that enable property to be left to an individual with special needs.
- Marital Trusts (A/B Trusts) used for property protection in second marriage situations and as a tax planning tool.
- Revocable Living Trusts used as a probate avoidance tool.
- Irrevocable Life Insurance Trusts that are used as “warehouses” for a person’s life insurance proceeds so that they are outside of his/her estate for estate tax purposes.
- Spendthrift Trusts that protect a beneficiaries’ assets from creditors and from the beneficiary.
Choosing to have a trust or execute a trust is a decision that should only be made after consultation and consideration of all your options. If you need to discuss the potential that a trust or trust provision can have on your estate plan contact us today.
Power of Attorney and Advanced Directive
for Health Care (Living Will)
In the event that you become unable to handle your own affairs (typically financial) while you are alive you need the assurance that the decisions made are in your best interests. A common myth exists that your spouse or adult children can automatically step in for them if they become incapacitated. However, in order for others to be able to manage your finances, they must petition a court for a declaration that you are legally incompetent. This is an exhausting, lengthy and costly process. The person appointed by the court to handle your affairs may have to come back to the court every year and account for how he/she is spending or investing your assets.
If you want to designate who controls your assets and affairs if you become incapacitated then you need to create the proper legal documents to designate a person, or persons, whom you trust so they will have the authority to handle your accounts, pay bills, take distributions from your IRAs, sell stocks, or even refinance your home. To properly plan for a situation where you become incapacitated you will need a properly drafted and executed Alabama Power of Attorney designed according to the Alabama Uniform Power of Attorney Act. A power of attorney can be durable, limited or springing (when incapacitation occurs). Our firm will assist you in choosing, drafting and executing the proper Power of Attorney for your needs. A power of attorney differs from a will because a will has no force until your death, but your power of attorney will have force prior to your death.
In addition to taking steps to protect your wishes with your financial affairs if you become incapacitated, it is imperative that you have a plan for your wishes regarding your medical care and end of life decisions. Our firm can assist you in drafting a Durable Power of Attorney for Health Care and/or an Advanced Directive for Health Care (ADHC). An ADHC is a document wherein you make your care and end of life wishes know if you become incapacitated and you will appoint a Health Care Proxy to assist your doctors. To discuss the details of a properly drafted Alabama Power of Attorney or an Advanced Directive for Health Care contact us today.
Probate and Estate Administration
My loved one has died and has a will, now what?
The process for admitting a will to probate begins when our firm reviews the will document to determine who is the personal representative, was the inventory requirement waived, was the bond requirement waived and is the will “self-proving.” A self-proving will is simply a will that pursuant to the Code of Alabama is admitted to probate without the necessity of calling the witnesses who signed the will. A properly drafted Alabama will is always self proving in form.
To submit the will to probate (or probate court) our firm will file a 1) Petition for Probate of Will, and a 2) Petition for Letters Testamentary. Also, the Will is filed along with any Waivers of Notice from next-of-kin, if necessary. Finally, a copy of the death certificate is required. Filing fees for submitting a will to probate vary by county. After the documents are filed, the probate court will issue Letters Testamentary to the Personal Representative. With issuance of the Letters Testamentary, the Personal Representative goes about his/her business of dealing with or transferring the deceased’s assets and payment of creditors or taxes. Our firm has experience representing Personal Representatives and assisting them with their duties. Typically, a Personal Representative will procure a Tax ID for the estate, open an estate bank account and file the decedent’s taxes. An estate must stay “open” for a minimum of six months and publication (notice) in a paper of general circulation must run. An estate is closed by filing the necessary settlement documents.
My loved one has died, but has NO WILL, now what?
Our firm represents families that face this scenario. When the decedent has no will he or she is deemed to have died “intestate.” This simply means that the assets will pass under certain “heirship” rules as defined by the Code of Alabama. The key distinction when your loved one dies with no will is that unless there is property subject to probate or there are unknown creditors then an estate may not need to be opened. Our firm will assist you in making this key determination.
To open an estate of a person who died intestate a Petition for Letters of Administration will need to be filed and a filing fee paid. This is called an Estate Administration, and is similar to probating a will. Anyone may open an Estate Administration and become the Personal Representative or Estate Administrator, but do so with caution. The Personal Representative in an Estate Administration has the same fiduciary duties as in a Will Probate. However, two additional responsibilities are placed on a Personal Representative in this situation: 1) an inventory of all estate assets must be filed within 60 days of opening the estate, and 2) an executor’s bond will need to be posted. A Personal Representative in an Estate Administration must determine what creditors are due payment, what taxes are due on the estate and who takes property under heirship rules. Similar to the probate of a will, notice of opening of the estate must be published in a newspaper and the estate must remain open for at least 6 months and then settlement documents are filed.
If you find yourself needing to Probate an Alabama Will or Open an Alabama Estate contact us today.
Estates property left by will or by the lack of a will through estate administration will go through the probate process. This process is costly, time-consuming and the records are publicly available. Probate Court of (fill-in-the-blank) County is in control of the process until the estate is disposed of and settled. The probate court may freeze assets for a period of time while trying to determine proper disposition of the estate, making it difficult for survivors to pay living expenses. If you are married or have children then it is imperative that your surviving spouse or children has immediate access the funds necessary to pay for living expenses while your estate is being settled. With proper planning, your assets can pass on to your loved ones without undergoing probate, in a manner that is quick, inexpensive and private. Examples of non-probate assets or assets that avoid probate are:
- Property held as “joint tenants with right of survivorship.”
- Retirement accounts with beneficiary designations.
- Life insurance.
- Payable on Death (POD) bank accounts with beneficiary designations.
- Property in a Living Trust.
If you would like more information about how you can structure certain estate assets to avoid probate contact us today.
Located in Helena, AL Scozzaro Law, LLC serves clients in Jefferson County, Shelby County, Tuscaloosa County, St. Clair County, Montgomery County, Mobile County, Madison County and statewide.