Even if you have done no planning, you have an estate plan in Alabama
“Estate Planning” — we often think we don’t have enough to bother with. Or it is not worth the time and cost to create a plan. Or somehow if we don’t have an estate plan, nothing bad will happen.
But even if we have done nothing — we do have an estate plan.
Let’s talk about this for a moment.
“If you don’t have a lawyer, one will be provided for you.”
We know this expression from the police shows on TV. It is part of the Miranda warning.
Same thing with an estate plan — if we don’t have, one will be provided for us.
The Alabama provided “Will” is not necessarily free or good
If we have no will, then our “stuff” that is in our name only will pass by the laws of intestate succession. This means the State of Alabama decides who gets what.
We still have to go to Probate Court and often the ones we want to receive our stuff will receive it. But not always.
You may have a friend or an Uncle or Aunt that you want to inherit some or all of your stuff. Not an adult child who cut you off two decades ago.
But your stuff will go to your child.
Or to your spouse who you have been separated from for a decade.
Of if you have no spouse or children, then to an abusive father who left you when you were two years old.
“But everyone knows I want my stuff to go to ________”
Doesn’t matter.
The Probate Judge simply follows the law.
Here is the law if you have a surviving spouse (Alabama Code 43-8-41)
The intestate share of the surviving spouse is as follows:
(1) If there is no surviving issue or parent of the decedent, the entire intestate estate;
(2) If there is no surviving issue but the decedent is survived by a parent or parents, the first $100,000.00 in value, plus one-half of the balance of the intestate estate;
(3) If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000.00 in value, plus one-half of the balance of the intestate estate;
(4) If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate;
(5) If the estate is located in two or more states, the share shall not exceed in the aggregate the allowable amounts under this chapter.
And the law for the portion of your estate not going to your surviving spouse
Code Section 43-8-42 says:
The part of the intestate estate not passing to the surviving spouse under section 43-8-41, or the entire intestate estate if there is no surviving spouse, passes as follows:
(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
(2) If there is no surviving issue, to his parent or parents equally;
(3) If there is no surviving issue or parent, to the issue of the parents or either of them by representation;
(4) If there is no surviving issue, parent or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the other half.
If you don’t want this or if you don’t want your family to have to go to Probate Court, then you need to do estate planning.
If you don’t have a power of attorney, then one can (at great cost) be provided for you when you can’t make your own decisions
A Power of Attorney let’s someone that you choose make decisions for you. So if I hit my head and think I’m George Washington, then who will make decisions for me?
Either I have a proper power of attorney or I have to go get a guardian or conservator appointed.
(NOTE: For elder law purposes — Alabama Medicaid and VA Pension — most normal “estate planning” power of attorney documents are worthless. So if you are in your 60s or in bad health, consider making sure you get a proper power of attorney from an elder law attorney.)
A guardian is someone who is appointed by court to make decisions over you. Your person not your money. So where will you live, what activities will you be involved in, etc.
A conservator is the one who controls your money.
Both a guardian and conservator are appointed by and supervised by the Probate Judge.
And it is normally expensive and time consuming for your family to go through the proceedings to get a guardian or conservator appointed.
If you would rather control your own destiny, then do your own estate planning. Plan while “vertical” not “horizontal”
I heard someone once say, “Plan while vertical not horizontal”.
Great advice.
Plan while you are healthy and competent — while you are standing upright (vertical). Decide what you want in the unfortunate situation that you become incapacitated.
Decide what will happen to your stuff now when you die.
Otherwise, the “planning” has to happen while you are horizontal — in a hospital bed or in a casket.
And while the State of Alabama does its best to do it the right way, if you want certainty as to what will happen, do your own planning now.
If we can help you think through how to do your estate plan in Alabama, contact us now
You can reach us by phone at 205-879-2447 and we can set up an in person meeting or a meeting by phone/video.
Or you are welcome to fill out our contact form and we’ll get right with you.
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