Estate Planning

Estate Planning is one of the greatest gifts you can give your loved ones. The probate process is time consuming and expensive. End of life issues are trying, even at the best of times. A comprehensive plan for your affairs and last wishes can make times of transition easier on your loved ones and ensure that the management and distribution of your assets are carried out according to your direction. An estate plan may incorporate a number of separate documents which serve different purposes both during your life and after.

Often people call Jarvis Law Firm PC and tell us they need a will. A will is the most important part of any estate plan because it will reduce the cost of going through probate and make sure that your wishes for property distribution are carried out.

The requirements for your will to be effective are very strict and specific. This is not something you should attempt without a lawyer. While low-cost website providers exist, signing of that will by the notary, witnesses and testator falls on your shoulders; when the legal formalities of how those signatures are applied to the page are not carried out correctly, your will may not be honored by the Court. At Jarvis Law Firm PC we regularly assist people to draft last wills and testaments and ensure that the required legal formalities are satisfied.

In a last will and testament, you select a personal representative, sometimes called an executor or executrix, to manage and distribute your property while a probate estate is open in any county where you owned property. The authority of your personal representative is created by the probate judge through “Letters Testamentary” and is terminated when your probate estate is finally settled in the probate court. Most probate estates are finally settled within one year. If your estate plans require a person to retain management authority over your assets for longer than one year, then one option is to create a testamentary trust. A testamentary trust is a trust that is included in your will. A testamentary trust appoints a trustee who to manage your assets even after your probate estate has been closed in the court. One disadvantage of a testamentary trust is that it does not avoid your having to go through the probate process. To avoid the time and expense of probate but allow a trustee to manage your assets long after you have passed, see the section below regarding living trusts.

A durable power of attorney allows you to appoint a person who has some or all authority to act as if they were you to sign contracts, checks, access your accounts and medical records, and to obtain banking, insurance, mortgage and utility information. This authority is generally conveyed immediately when the document is signed and continues in power after you can no longer make decisions for yourself. What makes is “durable” is that the authority does not terminate in the event that you can no longer speak for yourself. A durable power of attorney will prevent your family members from having to go through the complicated guardianship or conservatorship process in the probate court, and associated legal expenses, if you have not appointed a person to speak for you.

A medical power of attorney allows you to appoint someone to consent to medical procedures when you cannot speak for yourself.

An advance health care directive, also sometimes called a “Living Will”, is a state-regulated document that can direct health care providers under what circumstances of terminal illness or incapacity to withhold lifesaving medical treatments or food and water and to appoint a health care proxy to make decisions including when to withhold lifesaving treatments and/or food and water. This is the document that governs what some people commonly refer to as when to “pull the plug.” If you feel the need to have an advance healthcare directive, Jarvis Law Firm PC will be happy to assist you in formally recording your preferences in this document.

A revocable living trust is the best way for you to simplify the process of your survivors managing and distributing your assets according to your instructions after you can no longer make those decisions. A living trust usually allows your beneficiaries to avoid probate altogether. A living trust works together with your will to funnel all assets not specifically provided to a particular person in your will to your beneficiaries at a later date. Any estate that includes real estate, an LLC or a corporation is best benefitted by a living trust.

A living trust is the best instrument to make sure your assets go to the people you choose regardless of spousal remarriage or child divorce.

When real estate or ownership of an LLC or corporation are passed through a will without a living trust, the probate court is required to transfer the assets. When real estate, LLC ownership or ownership of corporate shares are titled in the name of the living trust, the trustee can manage and distribute those assets immediately with no court involvement.

If you are concerned that you need to shield assets from a Medicaid Recovery Program, certain irrevocable living trusts under certain circumstance may be able to achieve those goals. An irrevocable trust is a longer an more complicated document than a revocable living trust and you will want to call a local attorney to discuss the process and the pros and cons of an involuntary trust.

A trust only has legal effect if it has one or more trust assets. The trust asset requirement may be satisfied by opening a trust bank account and depositing any money at all into the account. More commonly the purpose of the trust is to own real estate. It is important that you lawyer create a deed for any real estate that is going to be owned by the trust that will transfer ownership of the specific parcel of land from the Trustor, Grantor or Settlor (the person creating the trust) to the Trustee in his role on behalf of the trust. That deed needs to be recorded in the probate court in the county where the land is situated. You attorney can also assist you in retitling automobiles or even bank accounts into the name of the trust under some circumstances.

Jarvis Law Firm PC is happy to work with your particular estate planning budget. Having a will is the top priority. A simple will (leave everything to one person (spouse or child) or a defined group of people (children) is the most important document with a low up front cost that will fit almost all budgets. More complex wills with ownership of small businesses, multiple parcels of real estate, list of specific items that are to go to specific people or children from multiple marriages are all situations Jarvis Law Firm PC would be happy to assist you with but are usually billed at the attorney’s standard hourly rate. After a will, the next priority is a Durable Power of Attorney and either a Medical Power of Attorney or Advance Healthcare Directive. These documents are typically similar for all Alabama citizens and for that reason are the lowest priced parts of an estate plan. Not all trusts need to be long or complex and Estate Planning Attorney Adam Jarvis will be happy to discuss your specific needs and choose a trust type best suited for you. A trust is the key element to an A+ estate plan. While formation of a trust is an additional expense, a complete estate plan with trust is almost always less expensive than the cost of going through the probate process which your trust can usually avoid.