As part of my formal legal education, my Decedent’s Estates professor explained that the Alabama Probate Code attempts to provide for the disposition of assets (the “Estate”) of a person dying without a will as nearly as possible in the manner most people would want to dispose of their estates. But, we all know from personal experience that one size does not always fit all.
Everyone who comes to our office arrives with a different vision of what should happen to his or her accumulated treasures once they die. That is why it is so important to proactively ensure your wishes are known and to have a current up-to-date will. Everyone should also prepare for the possibility of a permanent or temporary disability by utilizing legislatively authorized durable powers of attorney and advance directives for health care. Without these critical instruments while you are living you may leave your family members or court-appointed representatives speculating about your wishes – that is if they are even concerned about what your wishes would have been.
It is a gift to our loved ones and to ourselves to be prepared for the contingencies of life by assembling and signing estate planning documents (wills, trusts, durable powers of attorney, advance directives for health care). Unfortunately, many procrastinate rather than prepare. Even after making the first visit to the office, I often find myself making repetitive calls to clients to “finish up” the documents we have been engaged to prepare. Starting but not finishing is not very helpful as documents that are not signed with the required formality are of little to no value.
What happens if you die, have assets, and a will is not found?
- The Probate Court will appoint someone to handle the disposition of the assets based on a statutory priority.
- That court-appointed person will be compelled to pay a bond premium annually during the period the estate is opened based on the estate value.
- The estate will have to be inventoried and the inventory presented to the Court.
- Accountings and formal settlements and costly publications in local newspapers will be required.
- In nearly every instance, the actions by the person appointed to be in charge will have to be court approved – certainly with additional legal expense.
- The absence of a clear statement of a person’s wishes in a will or trust can lead to dispute among family members and business associates. Disputes are costly and benefit only those retained to resolve the dispute.
All of this can significantly reduce an inheritance and eat away at the disposition of assets that heirs would prefer to retain. The good news is, most of this can be avoided with an appropriately prepared and executed, up-to-date last will and testament.
A will or trust is a vehicle to express gratitude for the opportunities and blessings enjoyed during life. It is a tool to assure that a decedent’s values are perpetuated and those institutions which supported and nurtured their life (educationally, artistically, culturally, spiritually) will continue to exist to support future generations.
It has become clear over these last two years of the pandemic that there are many things we cannot control. At least we can provide a way for those who remain after our death to dispose of our assets and manage our affairs in keeping with our wishes. In doing so, we will save cost and expenses, and hopefully taxes, as long as our testamentary instruments are properly prepared. We can navigate for those who care for us in our disability, or incapacity, or during our final illness, by making our wishes explicit, and appointing a decision maker with authority to act for us when we cannot.
