We understand that death is not something pleasant to think about. After all, life is full of challenges and frankly, death is not a fun topic to discuss. There is a video on the internet of a woman who was diagnosed with a fatal disease and she left letters for each of her young daughter’s milestones in her life. Few of us get the opportunity as this woman did, to write 40 letters to her daughter to cover her daughter’s life’s milestones.
However, if we have children and families, estate planning is crucial to ensure the loved ones we leave behind are provided for financially. We would love to sit down and discuss your estate planning from life insurance, to whether you need a will or a trust, to special items you want to leave with the special people in your life. Call us today at (256) 202-6774 and schedule a free consultation!
There Are Two Primary Instruments in Which You Can Leave Your Estate: A Will or Trust
A will goes through the probate court and you can specify specific gifts to individuals, and how you want your estate distributed. The probate process is simply the process of validating someone’s will and distributing someone’s assets to the proper distributee. Generally, pensions, right of survivorship, joint accounts, and trusts are not involved in the probate process which is helpful for estate tax purposes in large estates. As families get more complex with adoption, re-marriage to other spouses who are parents of other children, estate planning becomes all the more important. Alabama has a plan for your estate if you die without a will (intestate).
What if I die without a will and I am married? Alabama Code Section 43-8-41 states: Share of the spouse. The intestate share of the surviving spouse is as follows: (1) If there is no surviving issue (children) 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.
What if I die and I have children? Alabama Code Section 43-8-2 states: Share of heirs other than surviving spouse. 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 degrees 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.
The Alternative to a Will is a Trust
A trust is created by a settlor (the legal term for the creator) and it is an instrument executed by the settlor which contains the settlor’s intent regarding a trust provision that is admissible in a judicial proceeding. A trustee administers a trust. Trusts do not go through the probate process and are generally not public knowledge. Having teenagers, the appealing attraction of a trust is that you can add a spendthrift provision to the trust which basically restrains the beneficiaries of a trust from voluntary or involuntarily transferring that beneficiary’s interest. Therefore, a beneficiary in a trust with a spendthrift provision cannot obtain a loan on the trust and generally it is free from creditor claims (child support, IRS, professionals hired by the trusts are a few exceptions). Trusts allow a lot of control on how your beneficiaries get trust money distributed to them. You can restrict a beneficiary to monthly drug tests to get trust money, distribute money at your beneficiary’s milestones such as getting married, and customize them is just about any way you can imagine.
Have questions? Want to begin the estate planning process? Call us today for a free consultation!