Foley Alabama Attorneys

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Let us Help You With Your Estate Plan

All property, real or personal, owned by a person at the time of death comprises his or her estate. Regardless of the dollar value of the estate, it is essential to have a well-drafted estate plan. Creating an estate plan could be as simple as preparing a will, powers of attorney, and living will or be more complex to include a variety of trusts agreements and family partnership agreements. 

Having an all-embracing estate plan can prove to be very beneficial.  An estate plan drafted by a competent estate planning attorney can: (i) coordinate what would happen with your home, investments, business, life insurance, and employee benefits, in the event you die or become disabled, (ii) ease the transfer of assets to your heirs, (iii) avoid unnecessary depletion of the estate by taxation, (iv) exempt the personal representative of the estate from requirements such as purchasing a bond and filing inventory, accounting or settlement during probate, (v) ensure that your assets are distributed in accordance with your personal wishes, (vi) provide instruction and guidance to your family and friends, (vii) prevent disputes between your loved ones and thereby avoid litigation costs, (viii) provide for succession considerations for businesses, (ix) make certain that minors and those with special needs are protected financially and otherwise, and (x) provide estate tax benefits.

Last Will and Testament

A will is a document that outlines the manner in which a person’s real and personal property is to be distributed upon his or her death.  While a large number of people in Alabama put off the making of a will or consider themselves too young to have a will, in Mobile and Baldwin County, Alabama, it is imperative to create a will to avoid uncertainty of property distribution, legal complications, and unnecessary expenses. 

In the absence of a will, the property of a deceased person is distributed by a person appointed by the Probate Court, an administrator, in accordance with a mathematical formula set by Alabama law.  This formula does not consider your sentiments, wishes or desire with respect to your assets. Such distribution of assets may also cause emotional distress among your family members and could lead to additional expenses when they turn to the court to fight over the distribution of your assets.  This is also relevant if you have been previously divorced.  Subject to some restrictions, a will provides you with the flexibility to dispose of your property after your death in a manner that is in accordance with your personal feelings. Additionally, in place of a court appointing an administrator, a will provides you with an option to choose the person whom you consider competent to manage your estate and trust to follow your wishes as opposed to the rules promulgated by the State of Alabama. 

If you have minor children, the absence of a will can be quite detrimental to your children, surviving spouse and other family members.  In the absence of a will appointing a guardian, it is the State of Alabama that decides which person will have custody of your minor children.  This could result in your surviving spouse, his or her in-laws and other family members fighting in court over the custody of your children which not only drains the assets of your estate but destroys family relationships. 

If you run a business in Mobile or Baldwin County, Alabama and you die without leaving a will, an administrator appointed by the Probate Court in Mobile or Baldwin County cannot carry on your business without express approval from such court.  The Probate Court has limited authority to provide such approval and in most cases, the business must be sold.  A will drafted according to the laws of Alabama can provide for succession considerations for businesses.

Having a well drafted will can save you a lot of money.  For instance, in the absence of a will, the Probate Court appoints an administrator to manage the distribution of the assets of your estate.  This administrator charges a fee which will be paid out of your assets.  This fee can be avoided by the use of a will.  According to Alabama laws, a will allows you to select a person to manage the distribution of assets, and can contain a provision directing that such person shall not be paid any fee or only a small fee.  Furthermore, if the Probate Court has to appoint an administrator, such administrator will be required by law to purchase a bond.  The amount of the bond is determined based on the value of your estate and is paid from the assets of your estate.  A carefully drafted will can however provide relief from having to purchase such bond.  Furthermore, in Alabama, a will can also provide for certain assets to pass outside of the estate, reduce the amount of taxes to be paid and provide estate tax benefits.  

As you can see, there are numerous advantages to having a will. We recommend that anyone who owns property and/or has children must take advantage of this estate planning tool. If you are considering the benefits of having a will or if you have questions pertaining to a will, please call us for a free consultation. Our estate planning attorneys will be happy to address all your concerns and assist you in preparing a customized estate plan consistent with your objectives.

Power of Attorney

A durable power of attorney is an authorization by which a person (principal) designates another person as his or her “agent” in writing or “attorney-in-fact” to act on the principal’s behalf in a financial, business, or legal matter. According to the laws of the state of Alabama, a durable power of attorney must contain words that demonstrate the intent of the principal that the authority conferred on the attorney-in-fact or agent is exercisable notwithstanding the principal’s subsequent disability, incompetency, or incapacity. In other words, depending on the writing, a durable power of attorney either continues to remain valid after the principal becomes incapacitated or becomes effective after the principal becomes incapacitated.

Our estate attorneys recommend that, where a principal has modest assets that do not justify a trust or property management by a court-appointed conservator, a durable power of attorney provides for an inexpensive, flexible, and private method to appoint another person to make legal and financial decisions on behalf of the principal. If you are interested in learning more about a durable power of attorney, please call our estate planning lawyers for a free consultation.

Backed by more than 25 years of combined legal experience, our attorneys can help you draft your powers of attorney in a timely and professional manner. We have a firm grasp of this area of law and can protect your rights and best interests throughout the legal process. With Caldwell Wenzel & Asthana, you can count on us for reliable and effective representation.

To set up your free consultation, please contact us today at (251) 444-7000 or toll free at (855) 390-5566.

Living Will/Advanced Directive

Under Alabama law, a person (principal) may designate under a durable power of attorney, another person (health care proxy) who shall have the authority to make health care decisions on behalf of the principal.

This durable power of attorney for healthcare is often referred to as a:

  • Living will and healthcare proxy,
  • Advance directive for healthcare, or
  • Declaration

The intent behind this law is that all adults have the right to control and/or direct the decisions relating to the rendering of their own medical care even when they subsequently become incompetent to actively participate is such decision making. Through a duly executed durable power of attorney for healthcare, the state of Alabama preserves the rights of a competent adult person to make written declarations about his or her health care decisions, including, designation of a health care proxy to make most medical decisions on behalf of the person, and whether medical procedures, life-sustaining treatments, and artificially-provided nutrition and hydration are to be provided, withheld, or withdrawn in instances of terminal conditions and permanent unconsciousness.

We believe a living will is the most important document in a healthcare plan. If you do not currently have a living will, you should contact one of our Foley estate planning attorneys for a free consultation. Our lawyers are highly skilled and experienced in this area of law and we can help you create an effective and personalized living will today. Backed by over 25 years of combined legal experience, we have the knowledge to create a comprehensive estate plan quickly and efficiently.

Call us today at (251) 444-7000 or toll free at (855) 390-5566 to schedule your free consultation with our estate planning attorneys.

Revocable Living Trusts

A revocable living trust is a relationship whereby one party (settlor or grantor) during his or her lifetime transfers real and/or personal property to a second party (trustee) for the benefit of a third party (beneficiary). This trust relationship is governed by a document titled “trust agreement” or “trust declaration”. A trust agreement outlines the identities of the settlor, trustee, and beneficiary, and identifies how the trustee is to manage and distribute the property placed in the trust. More than one individual or corporate entity can play the role of a trustee and a trust agreement can designate more than one beneficiary. Further, the same person can be the settlor, trustee, and beneficiary of a trust. An estate planning attorney can help you understand these trust agreements.

Generally, a revocable living trust allows the settlor to also be the trustee and beneficiary of the trust. This arrangement is advantageous as the settlor is not only able to control and manage the trust property but also benefit from any income of the trust property during his or her lifetime. Further, a revocable living trust permits the settlor to identify the people who can benefit from the trust property after the settlor’s death.

A common example used by a Foley estate planning lawyer includes a living trust which:

  • Provides for the settlor during the settlor’s lifetime
  • After the settlor’s death, provides for the benefit of the settlor’s surviving spouse
  • Upon the death of the surviving spouse, distributes the trust property to their children and/or lineal descendants

Settling a living trust during your lifetime can be extremely advantageous. A living trust is considered the best tool to avoid probate. The key to avoiding probate is that, at the time of your death, you leave no assets in your name. A living trust allows you to transfer all of your assets to the trust such that it is the trust that owns them and not you. As a result, at the time of your death, you are left with no probate assets and hence there is no need to probate your estate. The beauty of a living trust is that you are able to avoid probate and at the same time control and benefit from your assets.

Other advantages of a living trust include providing for:

  • Minor children and loved ones who have special needs or are unable to manage their assets
  • An immediate transfer of your assets to your loved ones upon your death
  • Management of your assets in case of incapacity
  • A reduction in estate taxes
  • Privacy

As mentioned above, there are numerous benefits to settling a revocable living trust. If you are interested in learning more about living trusts and how to avoid probate then please call our estate planning attorneys in Foley for a free consultation. Our lawyers will be happy to address all your concerns and assist you in preparing a customized living trust to help achieve your goals. We proudly serve Daphne, Foley, Spanish Fort, Fairhope, and all of Alabama.

In addition to drafting estate plans comprising of wills, powers of attorney, living wills, and revocable living trusts, our estate attorneys are proficient in creating complex estate plans which include credit shelter trusts, trusts for minor children, special needs trusts, including, first party and third party special needs trusts, spendthrift trusts, marital deduction trusts, including qualified terminable interest property (QTIP) trusts, generation skipping trusts, irrevocable life insurance trusts, charitable trusts, family limited liability companies, and family limited partnerships.

If you are interested in creating an estate plan, simple or complex, please give our estate planning attorneys a call today at (251) 444-7000 or toll free at (855) 390-5566.  We proudly serve all of Alabama and look forward to working for you.


Our estate planning and litigation attorneys are some of the most active litigation practitioners in Alabama. Our lawyers have had enormous success in both probate and circuit courts. To schedule a free consultation with our experienced Alabama estate planning attorneys, please contact us.

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