Do you have an estate plan?
W
hether presenting to groups of individuals or during initial client consultations, I often state, “you need an estate plan; otherwise, the State has a plan for you, and you may not like what it says.” What I mean by the comment is if an individual dies without leaving a Last Will and Testament (dying intestate, then State law dictates (intestate succession) who will receive your probate assets (property not governed by payable on death beneficiary designations or survivorship rights) and in what fractional shares. For example, assume an Alabama appointed as the personal representative to resident passes away intestate, administer a probate estate. The more well known leaving a spouse and two children surviving. of these formalities include obtaining a surety bond Next, assume the deceased person always believed insuring the non-realty assets of the probate estate, and intended, as many do, that his or her spouse filing an inventory of probate assets with the court would receive all of his or her property at death. and making a final settlement with Unfortunately, that is not the result with the court. In almost all circumstances, respect to the person’s probate assets. when preparing the will, a person will In this situation, Alabama intestate want to relieve these requirements of succession law divides the person’s the personal representative to minimize probate assets in approximately half. estate administrative expenses and the The surviving spouse would receive time required to satisfy the formalities. half of the assets. The other half of the Any estate plan should include the assets would be divided equally between preparation of an Advance Directive the two surviving children – a vast for Health Care with a Living Will and difference from the deceased person’s Durable Financial Power of Attorney. belief and intention. Therefore, having These documents allow a person to a will to govern the distribution of appoint someone who will make his or property at death (dying testate) instead her healthcare and financial decisions of intestate succession law governing the if the person is later unable to do so distribution is just one of many reasons his or her own. Failure to have such why every individual capable of creating David B. Welborn on documents could cause a costly and a will needs to do so. time-consuming court proceeding in For those individuals with a minor order for another person, who might not be the child or child who has been incapacitated since person the then-incapacitated person would have birth, Alabama law permits such individuals to named in his or her documents, to be permitted to nominate a guardian for the child in the event make said decisions. of death at a time when the child still requires If loved ones are to avoid the issues mentioned a guardian. Failure to have a will make the above, then create an estate plan for their benefit nomination, when applicable, leaves open the and peace of mind. possibility of the necessity of a time-consuming and perhaps costly guardianship court proceeding ~David B. Welborn is originally from Alexander at the death of the parental guardian, in addition to possible litigation among relatives or others desiring City and is a partner in the law firm of Browder & Welborn, LLC. guardianship of the child. In addition, unless a will relieves them, probate law places numerous formalities on the person
MONEY MATTERS
Lake Martin Living 35
