Below are answers to questions frequently encountered at The Hawkins Law Firm as we provide advice and legal assistance with estate planning. For advice and counsel regarding your own estate planning or probate matter, contact The Hawkins Law Firm for prompt, personal service.
Q. Do I need a will?
A. The will is the traditional document used to distribute one’s assets to intended heirs and beneficiaries upon death. Today, many people choose to use revocable living trusts as an alternative to a will, in order to avoid or minimize probate and make the most tax-advantageous decisions regarding their estate planning. If you are utilizing a trust or even multiple trusts, there are still several reasons to consider including a will in your estate plan. For instance, a will can be used to appoint a guardian over your minor children. Also, a will can include provisions for how to handle any remaining property that was not specifically covered in your trust(s). For instance, your will can contain a pour-over provision which will direct any such property into a previously-created trust.
Whether to use a will, trust, or some combination should be considered and discussed with your attorney as part of an overall comprehensive estate planning strategy.
Q. What are the requirements for a valid will?
A. Under Alabama law, any person 18 years old or older who is of sound mind may make a will. To be valid, the will must be in writing and signed by the testator or by another person at the testator’s direction. The will must also be signed by at least two persons who witnessed the signing or the testator’s acknowledgment of the signature.
Even a will that seems to meet these requirements may be contested during probate. Common grounds for challenging a will include allegations that the testator lacked capacity or that the will was drafted under fraud, duress, or undue influence. Sometimes more than one will is found to be in existence, and the court must determine which will is valid and which will has been validly revoked.
Q. Is it possible to avoid probate?
A. Probate is the court-supervised process of giving effect to a will, paying taxes and debts of an estate, and distributing property according to the terms of the will or the laws regarding intestate succession when there is no will or trust. Probate can be an expensive and time-consuming process which is not always in the best interests of the estate and its heirs.
The most direct way to minimize probate is to remove assets from the estate. The most popular vehicle for accomplishing this is to place the assets into a revocable living trust. However, there are many other vehicles that may also be used in addition to trusts. For instance, jointly-titled property passes to the other titleholder without the need for probate. Also, insurance policies, retirement benefits, and other documents with named beneficiaries are given effect outside of probate. There are a variety of tools to be considered, and your estate planning attorney can help you decide which mechanisms are the most advantageous in your particular situation.