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» Grandparents and The Law

Grandparents and The Law

Several questions surface as you or your loved ones age; wills and trusts, estate planning, powers of attorney, medicare, and nursing homes. Is your nestegg built up enough for your retirement? Are you OK with allowing the court-appointed authorities to make decisions on who will inherit your personal possessions, savings and home? Please give us a call regarding any questions you may have regarding legal issues related to the elderly.

Alabama State Elder Law FAQ (from www.nolo.com)

What will an Alabama will do for me?
A “last will and testament” can protect your property and your family. Some of the ways you can use your will are:

  • designate a person or organization that should inherit your property
  • state who will be the personal guardian of your minor children
  • designate the person who is trusted with managing any property left to your minor children, and
  • designate an executor; a person who ensures the terms of your will are executed properly.

What will happen if I fail to write a will before I die?
Alabama law states that if a person dies without having a will in place, the state “intestacy” laws will decide who your property will be distributed. The Alabama intestacy law states that all property should be given to your closest living relatives, starting with your spouse and then your children. Your grandchildren or parents are next in line in the case where you do not have a spouse or child. The intestacy law continues with distant relatives to include grandparents, siblings, uncles and aunts, spouses relatives, and cousins if there are no parents or grandchildren. Once the court appointed offical exhausts their efforts to locate living relatives by marriage or blood, then your property will be awarded to the state.

Is a lawyer necessary to write a will in Alabama?
No. An indivdual is capable of writing their own will in Alabama. You may need to consult a lawyer in some situations. For instance, if you believe there is a chance your will could be contested or if you want to leave your spouse off the will, you would want to consult an attorney.

What is required of you when signing a will in Alabama?
In order to finalize your will in Alabama:

  • you will need two witnesses present while signing, and
  • you need to have those witnesses sign your will.

Do I need a notary when I sign my will in Alabama?
It is not nescessary to have you will notarized in Alabama in order to make it legal. However, if you would like your will to be “self-proving” you will need to have it notarized. By making your will self-proving you will speed up the probate process because the court appointed official will be able to accept the will without having the witnesses verify their signatures. In order to make your will self-proving, take your will and your witnesses to a notary and complete an affidavit that will prove who you are and all parties involved knew you were the one signing the will.

Do I need to use my will to name an executer?
Yes. Alabama law allows a person to name an executor with their will in order to make sure everything stated in your will is carried out as stated in your will. In the case where an executor is not named, the courts will have to appoint an individual to complete this task.

What does a living trust do?
A trust is where a trustee maintains a legal title to property of a beneficiary. It is possible for you to be your own trustee of your property, maintaing complete control of all property managed in the trust. Also called an “inter vivos” trust, a living trust is something a person creates while they are alive instead of one created after death per the statements made in your will.

Is a living trust something I need in Alabama?
There are advantages of a living trust in Alabama; you will prevent any expenses or delays for your family while executing your will in probabte court after your death. Alabama has a complex process in their probate courts because they do not sue the Uniform Probate Code, which makes the probate process more simple, so it would be smart to creat a living trust in order to avoid this.

Do I still need a will in Alabama if I create a living trust?
Yes. A will acts as a backup plan in cases where property is not included in your trust. If you were to add new property and it is not added to your trust before you die then it would need to be covered by your will because it would not pass under the stated terms of your living trust. In these types of cases, you could use your will to designate who would inherit any property that is not left to a particular person or beneficiary. If you only have a living trust and do not have a will then the undesignated property will go to the closest relative.

How do I create a living trust in Alabama?
In order to create a living trust in Alabama, you:

  • write the trust document, which designates the beneficiaries and the trustee.
  • execute or sign the written trust document in front of a notary.
  • Transfer all property to your name as the trustee of the trust.

Why would it be necessary to have an Alabama financial power of attorney?
In situations where you are unable to manage your own finances, you need to have a person lined up that would be able to help. A financial power of attorney allows you to give power to someone you trust so they can handle your bills, manage your investments, coordinate bank deposits, collect any due benefits from insurance or the government, and handle any other fiancial matters on your behalf. Your family would have to spend time and resources in court in order to help you with financial matters if you do not have a financial power of attorney.

Who would be the person making financial decisions for me under an Alabama financial power of attorney?
The person designated to make financial decisions for you is called an “attorney-in-fact” in Alabama. Any adult who is competent is capable as serving as your attorney-in-fact and they are not required to be an attorney. Important factors in deciding who should be your attorney-in-fact are commen sense and dependability. For practical reasons, you need to choose someone who lives close to you so they can handle day-to-day tasks.

After creating an Alabama financial power of attorney, when should it take effect?
certifies that you have become incapacitated. This is called a “springing” durable power of attorney. Alabama laws allow for your financial power of attorney to take effect as soon as it is executed. Make sure to specify that you wish for it to be “durable”. Your financial power of attorney will automatically end once you become incapacitated if you do not specify for it to be durable. In case you do not wish for the document to be effective immediately, state that you do not wish for it to become effective until you are deemed incapacited by a physician. This action is know as a “springing” durable power of attorney.

When will a financial power of attorney end?
A durable power of attorney will automatically end upon death. It could also end if:

  • You choose to revoke it. You are able to revoke your finanicial power of attorney so long as you are still mentally competent.
  • You go through a divorce. If your spouse is listed as your attorney-in-fact and you file for divorce, Alabama law states that a durable power of attorney will terminate automatically. Practically speaking, it is wise to immediately create a new financial power of attorney once you file for a divorce.
  • Your document is invalidated by a court. This scenario is not commone, but it is possible for a court to declare your financial power of attorney invalid if it were to conclude that when you signed the document you were not mentally competent, or you were a victim of undue influence or fraud.
  • Your attorney-in-fact is not available. Name an alternate attorney-in-fact in your document in order to avoid this situation.
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