Harville-Stein Law Offices: Wills and Probate Attorneys

GENERAL QUESTIONS ABOUT WILLS

WHAT IS A WILL?
A Will is a document that determines how a person’s property will be distributed when he dies. A person who dies after writing a Will is said to have died “Testate”. If someone dies without writing a Will, they are said to have died “Intestate”.

WHO MAY MAKE A WILL?
In Alabama, the maker of a Will must be a person:
1. At least 18 years old;
2. Of sound mind; and
3. Free from improper influences by other people.

HOW DO I MAKE A WILL?
A Will must meet certain requirements set by State law to be considered valid. In Alabama, the following requirements must be met:
1. The Will must be written.
2. The Will must be signed by the maker.
3. The Will must be witnessed by two people in the manner required by law.

CAN A WILL SIGNED WHILE LIVING IN ANOTHER STATE BE ENTERED INTO PROBATE IN ALABAMA?
Generally, as long as a Will met the legal requirements established by that State’s law for being a valid Will, it can be probated in Alabama if the person was last a resident of Alabama at their death.

MAY I DISPOSE OF MY PROPERTY IN ANY WAY I DESIRE BY MAKING A WILL?
Almost, but not quite. There are some limitations set by law, particularly as to spouses who survive the deceased. An Attorney experienced in how property passes under the various laws can explain the limitations and alternatives.

HOW DO I KNOW IF I NEED TO WRITE A WILL?
Any amount of property that you own constitutes your “Estate”. An Estate does not have to be any particular size to justify a Will. If you have children, young or older, or property which you would like to assure will be given to certain people, then you should consider writing a Will. Generally, most people should have a Will to make sure property is distributed to whom they want with a minimum of legal complications and expense. Certain Estate tax benefits can only be taken advantage of by a carefully constructed Will.

WHEN DO I NEED TO WRITE A WILL?
A Will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision. A Will should be a well thought-out plan considerate of many factors, financial, legal and emotional as well.

WHO MAY DRAFT A WILL?
There is no requirement that a person consult an Attorney before drafting his or her own Will. However, unless the Will is properly drafted, it may not reflect the person’s true intentions and if not done according to the Law, may not even be valid. Important questions like “Should I waive an Inventory” or “Should I waive Bond”, or who can serve or should serve as the Executor need careful consideration. Have you built in a “Testamentary Trust” for young children and designated a Guardian? Do you want the same person to be Guardian and also exercising control over the children’s funds? We have seen many a well intentioned “self drafted” or poorly drafted Will result in costly court litigation and the person’s true intentions being thwarted. It is best to consult someone who has experience in these matters. An Attorney can make sure that your Will meets all legal requirements, and that your property will more likely be given to the people that you intended. An Attorney can also help construct a Will so that your family may save money in administering the estate, and possibly reduce their taxes.

IS A WILL THE LAST WORD ON HOW ALL MY PROPERTY WILL BE DISTRIBUTED?
Not necessarily. It is also important to know that a Will does not override certain other elections made with respect to 401k’s, IRA’s, bank accounts, pension plans, life insurance and homes and other property, depending on how these accounts were established or how the property is titled. These assets need to be reviewed and considered in the drafting of the Will in order to make sure their distribution is consistent with the intentions of the person making the Will. A qualified Attorney can help you understand why some of these assets may not pass as specified in your Will without taking other actions.

IS A WILL EXPENSIVE?
An Attorney will usually charge for a Will according to the time spent in preparing the Will. If you have a small estate and a simple plan for distributing your property, then your Will generally costs less than one for a larger or more complex Estate.

MAY A WILL BE CHANGED ONCE IT IS WRITTEN?
A person may change his or her Will as often as desired. However, the changes must meet the same legal requirements as for the original Will, and requires the preparation of a new Will or Codicil to the Will. You cannot simply write in changes, or scratch out part of an existing Will. No change should be made without first consulting the person who drafted the Will or another qualified Attorney.

HOW LONG IS MY WILL “GOOD”?
A properly written and executed Will is “good” until it is changed or revoked. Writing a second Will usually revokes the first Will. However, if there is a change in your estate or your family makeup, you may consider changing your existing Will or writing a new Will. For example, if you sell your house you may need to change your Will to reflect the change in your estate. Also if you have had a child or more children, divorced, if a spouse or child dies and in many other situations and changes of circumstance, you may need to revise your will.

WHAT SHOULD I DO WITH MY WILL ONCE IT IS WRITTEN?
Once you have written your Will, you should keep it in a safe place, such as a safety deposit box at a bank. You should also let your family know where the Will is so that they can find it should you die.

WHAT IS AN ADVANCE DIRECTIVE, OR LIVING WILL?
An “Advance Directive” or “Living Will”, is a document drafted in compliance with State law, that provides you a way to make decisions on the future healthcare services you will or will not accept, based on the condition the physician determines you are in at that time. For example, if you “become terminally ill or injured” you can choose, using the Advance Directive or Living Will, whether you want life-sustaining treatment provided. You can also determine if you want artificially provided food and water, that is, food or water through a tube or an IV (intravenously), if you can no longer chew or swallow on your own. A major important aspect of the Advance Directive or Living Will is your ability to designate a “healthcare proxy”. A healthcare proxy is a person appointed by you in the Advance Directive or Living Will to make decisions for you if you become incapable of making or communicating health care decisions with regards to your own treatment. It also lets the healthcare providers know this a person with whom they can discuss your medical condition. We know it is not necessarily easy to think about these decisions, but an Advance Directive or Living Will makes it more likely your wishes will be followed when that time comes and relieves your children, relatives or friends of the burden of making such difficult decisions at a difficult time.

WHAT IS A POWER OF ATTORNEY OR DURABLE POWER OF ATTORNEY?
Generally, a Power of Attorney allows someone you select to make a decision for you as provided by law. This may be a document that allows someone to sell a house or other property for you, open bank accounts or close bank accounts, conduct other business, pay your bills, choose where you will live and any combination of other life and personal business activities. If you become incapacitated, and do not have a Power of Attorney, then a family member or other interested person may need to go to court to have a conservatorship or guardianship established for you. Having to go to court is obviously more expensive and time consuming, then if you have a Power of Attorney prepared in advance when you are well and in good mental condition, giving many of these same powers to conduct your affairs. A Durable Power of Attorney is specifically a Power of Attorney that comes into existence and remains valid, even if you become incapacitated by illness or injury. Some powers of attorney are referred to as “springing” because they only become usable by the person appointed by you IF you become incapacitated by accident, injury, or illness. That is they “spring” into existence upon a physician or court determining that you are now incapacitated. A Power of Attorney can be drafted several different ways to meet your specific requirements, and the “power” of the document to allow someone to handle your affairs needs careful consideration.

At Harville-Stein Law Offices, we are experienced in drafting Wills with a mind to important financial and family issues. Whether a so-called “simple” Will or a more complex distribution scheme, we are ready to help you in any county in Alabama. You can see from the questions above, appropriate thought and care must be given to the “simplest” Will, to make sure it and the structure of your assets, are coordinated to carry out your wishes. Make sure you take advantage of discussing these issue with an Attorney, who can then draft a Will to meet your needs and make suggestions on how to set up your accounts and assets. In any county in Alabama, including Jefferson County, Shelby County, Talladega County, St. Clair County, Birmingham, Bessemer and many more, we can prepare a Will for you and provide you detailed instruction on the proper signing of your Will. Contact us for a free quote of preparing a Will for you, you might be pleasantly surprised at the competitive prices and the personalized attention and advice.

We also can prepare for you a Power of Attorney. This document is designed to let a person you carefully select, conduct business for you in the event you become incapacitated.

We also can prepare an Advance Directive or Living Will for you. This document lets healthcare providers know your wishes should you need life sustaining treatment where there is no medical hope for your recovery or other conditions “within a reasonable degree of medical certainty”. Please ask us about both durable power of attorney and Advance Directive, Living Wills.

IN SUMMARY