I Live in Alabama and Need a Will, Power of Attorney or Advance Directive
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 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 Administrator need careful consideration. Have you built in a “Testamentary Trust” for young children and designated a Guardian? Do you want the same person be Guardian and 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.
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 when you die.
WHAT IS AN ADVANCED DIRECTIVE, OR
LIVING WILL? An “Advanced 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), when 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.
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.