Services | T Jeff Stein Probate Attorney

Trusts

You have probably heard of the concept of trusts. Sometimes they are referred to as family trusts, private trusts or corporate trusts. You have probably also heard of offshore trusts or international trusts. Generally there is a mystique about trusts, and a lot of unnecessary confusion about what they are, and when they should be used. Many people think trusts are just for the rich or for people with complex financial and investment affairs. That is not the case at all.

Trusts are a very common way of dealing with a range of personal choice, family or business options. After you have some additional insights into trusts and their uses, you may come to the conclusion that one or a number of trust options could meet your financial, estate and tax-planning needs.

Basically, a trust is a legal structure whereby a trustee deals with property or assets (such as cash, stocks, or bonds) over which the trustee has control, for the benefit of persons called beneficiaries. In some cases, the trustee could also be one of the beneficiaries. Although the trustee has legal title to the trust property, beneficial ownership rests with the beneficiaries.

There are two main types of trusts: living trusts and testamentary trusts. A living trust (also referred to as an inter-vivos trust) is established while an individual is alive, and comes into effect once the trust agreement is signed and the trust is funded. A testamentary trust is created under the terms of a person’s will and is therefore activated on the person’s death. It is funded from the proceeds of the deceased’s estate. These trusts serve different purposes and objectives and can have different tax implications.

Wills

Wills are legally binding documents that state exactly what should happen in the event of a person’s death. Wills are meant to protect a person’s money, physical property, and children. Many people only require basic wills, which can be created with the help of inexpensive computer programs.

In basic wills, transfer of possession of goods and matters regarding life insurance payouts are covered. Any money in savings, checking, or other bank accounts is assigned to the person or people the will writer selects. If minor children are involved, the will writer also designates a guardian for the child or children. Information regarding the transfer or sale of houses owned by the will writer are also included in wills. Other items designated in wills include furniture, cars, jewelry, pets, expensive clothing, and any other valuables.

Wills can be written as long as the author is of legal age, which is eighteen in the United States, and of sound mind. Written wills can be drawn up by a lawyer, typed on a computer, or handwritten, with the exception of the state of Washington, where handwritten wills are not legal. In all of these cases… A will must be signed by the testator in front of two witnesses and it can be self-proving if it is notarized and contains the proper language.

Revocable Living Trusts

A trust is an agreement that determines how a person’s property is to be managed and distributed during his or her lifetime and also upon death.A revocable living trust normally involves three parties:

  • The Settlor – Also called grantor or trustor, this is the person who creates the trust, and usually the only person who provides funding for the trust. More than one person can be the settlors of a trust, such as when a husband and wife join together to create a family trust.
  • The Trustee – This is the person who holds title to the trust property and manages it according to the terms of the trust. The settlor often serves as trustee during his or her lifetime, and another person or a corporate trust company is named to serve as successor trustee after the settlor’s death or if the settlor is unable to continue serving for any reason.
  • The Beneficiary – This is the person or an entity that will receive the income or principal from the trust. This can be the settlor (and the settlor’s spouse) during his or her lifetime and the settlor’s children (or anyone else or a charity the settlor chooses to name) after the settlor’s death.

A trust is classified as a “living” trust when it is established during the settlor’s lifetime and as a “revocable” trust when the settlor has reserved the right to amend or revoke the trust during his or her lifetime

Advance Directives

Advance directives are documents signed by a competent person giving direction to health care providers about treatment choices in certain circumstances. There are two types of advance directives. A durable power of attorney for health care (“durable power”) allows you to name a “patient advocate” to act for you and carry out your wishes. A living will allows you to state your wishes in writing, but does not name a patient advocate. Many people have strong feelings about the kind of medical care they would like to receive or refuse in certain circumstances. An advance directive allows you to clearly state your feelings. What decisions should I consider:

  • Who would you like to make treatment decisions for you, if you become unable to so?
  • How do you feel about ventilators, surgery, resuscitation (CPR), drugs or tube feeding if you were to become terminally ill? If you were unconscious and not likely to wake up? If you were senile?
  • What kind of medical treatment would you want if you had a severe stroke or other medical condition that made you dependent on others for all your care?
  • What sort of mental, physical, or social abilities are important for you to enjoy living?
  • Do you want to receive every treatment your care-givers recommend?

Conservatorships

A conservatorship is a court proceeding that grants one (or more) person(s) the authority to make financial or health care decisions for another because of a mental or physical incapacity that renders a person unable to make informed and sound decisions. A conservatorship can be over the person, the estate, or both.The person who is appointed by the court to make decisions is called the conservator, and the person about whom decisions will be made is called the conservatee. Conservators are generally family members or may be a professional conservatorship company. In some cases, the Public Guardian’s office may be appointed.

Regardless of who the conservator is, their duty is to act solely in the best interests of the conservatee. To insure this, court evaluation, supervision and monitoring of the conservatorship is established. In appropriate cases, the court may appoint an attorney to represent the interests of the conservatee. A court investigator is often assigned to interview the proposed conservatee and provide the court with a written report.A conservatorship over the person is recommended when a proposed conservatee is unable to provide for his or her own food, clothing, and shelter. If appointed, a conservator over the person will have the authority to make decisions which might include where the conservatee will live, how the conservatee will be clothed and fed, and may include the power to make medical decisions.

A conservatorship over the estate provides the conservator with authority to make financial decisions. The conservatee’s property will be inventoried and appraised and reports will be provided to the court. A bond may be required to protect the assets of the conservatee.Even when it is obvious that a person needs help, a conservatorship may not be the proper procedure. If a properly executed durable power of attorney was created before any signs of mental incapacity developed, then the “agent” named in the power of attorney may be able to handle all of the financial decision-making tasks without the need for a conservatorship. Likewise, a power of attorney for health care decisions may eliminate the need for court intervention.

Elder Law

Elder law attorneys also handle issues concerning elder abuse. This includes physical abuse and financial abuse. Financial abuse occurs when someone takes advantage of an elderly person’s physical or mental incapacitation to steal money from him or her.

It is best to seek an elder law attorney’s services before illness or incapacity becomes an issue so they can help you draft legal documents detailing exactly how certain situations should be handled if you are not able to make decisions for yourself. That means you’ll be in control of the care and treatment you receive regardless of your ability to assert what you want at a later point. If you are the victim of elder abuse, you should contact an elder law attorney immediately.

Before hiring an elder law attorney, consider how long the attorney has been practicing elder law. You should also consider whether their practice emphasizes the particular areas of elder law that are important to your circumstances. Prepare for your first meeting with the elder law attorney by making a list of any questions you may have; and bring any documents related to the matters that concern you. This will allow the attorney to provide focused information about your elder law issues, and help you determine whether he or she is the right elder law attorney for you.

Estate & Probate Settlements

Probate is a term that is used in several different ways. Probate can refer to the act of presenting a will to a court officer for filing — such as, to “probate” a will. But in a more general sense, probate refers to the method by which your estate is administered and processed through the legal system after you die.

The probate process helps you transfer your estate in an orderly and supervised manner. Your estate must be dispersed in a certain manner (your debts and taxes paid before your beneficiaries receive their inheritance, for example). Think of the probate process as the “script” that guides the orderly transfer of your estate according to the rules.

Many people think that probate applies to you only if you have a will. Wrong! Your estate will be probated whether or not you have a will.

  • With a valid will: If you have a valid will, then your will determines how your estate is transferred during probate and to whom.
  • Without a valid will: (Intestate)If you die without a will, the Probate Code will dictate who will get your property. Also, a bond will be required to be filed by the administrator.

Estate Planning & Management

Estate planning is one of the most important steps any person can take to make sure that their final property and health care wishes are honored, and that loved ones are provided for in their absence. Though often overlooked or put off in favor of more immediate concerns, a comprehensive estate plan can resolve a number of legal questions that arise whenever anyone dies: What is the state of their financial affairs? What real and personal property do they own? Who gets what? Does a personal guardian need to be appointed to care for minor children? How much tax will need to be paid in order to transfer property ownership? What funeral arrangements are appropriate?

Guardianship

A guardianship is a legal relationship created when a person or institution named in a will or assigned by the Probate Court takes on the responsibility of caring for a minor child or in an incapacitated adult.  Generally speaking, a guardian is responsible for decisions concerning the care of the Ward, such as the following:

  • Acquiring proper medical care
  • Hiring and firing doctors, nursing services or other health related services
  • Choosing living accommodations
  • Authorizing education, vocational training, or other skills training to make the Ward more independent
  • Ensuring the Ward’s safety and health
  • Remaining in close touch with the Ward so as to assess his or her needs and capacities

To become a guardian of a child or incapacitated adult the party intending to be the guardian will petition the Probate Court or the Juvenile Court to appoint the guardian by issuing Letters of Guardianship. The guardianship of a minor remains under court supervision until the child reaches the age of majority (in Alabama) at 19 years of age. The judge does not have to honor the request when someone is named in a Will as guardian of one’s child in case of the death of a parent; however it is construed as a preference and is usually honored. Guardians take control of the personal decisions in the Ward’s life whereas conservators are appointed to manage the assets of a protected person such as their real estate and money.

Inheritance Planning

Proper inheritance or estate planning is not only recommended because of the inheritance tax and for a comprehensive asset protection strategy; it is indispensable to uphold your will once your legacy passes on to your heirs and beneficiaries.

Therefore, careful estate planning deserves your full attention as this is an important object to ensure that your estate is passed on to your heirs in an orderly manner that reflects your will, and with no risk of your wishes being challenged. The laws concerning inheritance, and the payment of taxes on wealth and goods left to beneficiaries, are complex and frequently changing. If you happen to have a large estate, it is wise for you to look for adequate legal advice and to have your will and any other instruments drawn up by a qualified estate planning attorney who is familiar with wills and trusts. Your estate planning council will also need to keep you up to date with any legal developments so that your affairs can be updated whenever necessary.

Before you do anything make sure to get clear about exactly where you would like your heritage to go when you pass on. It is astonishing that despite the fact that estate planning has been necessary ever since primitive man began to own property, there is still a surprisingly high percentage of people dying intestate. Without a proper inheritance plan, including a will, durable power of attorney, and advance health care directive, your assets could be distributed according to a formula worked out by the State of Alabama.

Living Wills

A living will is a legal document that a person uses to make known his or her wishes regarding life prolonging medical treatments. It can also be referred to as an advance directive, health care directive, or a physician’s directive. A living will should not be confused with a living trust, which is a mechanism for holding and distributing a person’s assets to avoid probate. It is important to have a living will as it informs your health care providers and your family about your desires for medical treatment in the event you are not able to speak for yourself.

The requirements for a living will vary by state so you may want to have a lawyer prepare your living will. Many lawyers who practice in the area of estate planning include a living will and a health care power of attorney in their package of estate planning documents. If you need to write or update a will or trust, you can take care of your living will at the same time.

Powers Of Attorney

A power of attorney is an instrument containing an authorization for one to act as the agent of the principal that terminates at some point in the future either by its terms or by operation of law such as death of the principal or agent. They are also called letters of attorney. The person appointed is usually called an Attorney-in-Fact. A power of attorney which doesn’t provide for a successor attorney-in-fact to be appointed will terminate at the death of the attorney-in-fact. The person making the power of attorney appointment is called the principal. A power of attorney can be either general, durable or limited. Some states have adopted a statutory power of attorney. Other specific types of power of attorneys include: Health Care Power of Attorney, Power of Attorney for Care and Custody of Children, Power of Attorney for Real Estate matters and Power of Attorney for the Sale of a Motor Vehicle. Power of attorney requirements vary by state, but typically are signed by the principal and need to be witnessed and notarized.

State laws vary, but generally, a power of attorney must be complied with unless the person to whom it is directed has reasonable cause to doubt the authority of the agent. In some cases, a specific power of attorney addressing the authority of the agent in a particular transaction may be required.

Deeds

A deed is a written legal document that states who has the legal right to possess a parcel of real property or produces a transfer of ownership in real property.   A deed must contain the names of the old and new owners of the parcel of real property as well as a legal description of the parcel of real property.  The deed also must be signed by the grantor and should be recorded in the county the property is located.  There are several types of deeds.  Your state’s and city’s rules must be followed to create a valid deed.  The most common types of deeds are quit claim deeds, grant deeds, warranty deeds, fiduciary deeds, and trust deeds.Usually a deed is required to transfer real property, but a deed is not always required.  To successfully transfer real property, there must be a writing containing the terms of the transfer. Deeds are very important documents that affect your ownership interest and rights in parcels of real property.  An experienced real estate attorney can help you determine the extent of property rights applicable to a particular parcel of property, whether you are buying or selling the parcel.  A real estate attorney also can help you defend any attacks on the title to your property.

Real Estate Closings

Attorneys  examine the title records for prior conveyances, unpaid mortgages, liens, judgments, easements, and other encumbrances and clouds on title. They verify that the seller has the authority to convey a good title to the property and that no errors exist in the deeds in the chain of title. They likewise negotiate with the title insurance company for insurance coverage to insure titles against any adverse claims of ownership, liens, and easements. Closing attorneys next combine all relevant information into one set of closing documents. At the closing, they provide detailed explanations of the documents to insure that the parties understand all issues involved in the transaction. Such matters include: the relevant contracts of sale, obligations of contracts, ordering of the title searches, their analysis of title searches, significance of the title search, quality of title, extent of risks, probability of damage, obligation to close or not to close, process of closing itself, and documents there exchanged. They then disburse funds, record relevant documents as public records, and prepare title insurance policies for the purchaser and lender.

Mortgage Foreclosures

If you have fallen behind on your mortgage payments and are facing foreclosure it is important that you not walk away and allow the bank to foreclose on your home. A knowledgeable real estate attorney can defend a foreclosure lawsuit, based on various defenses, resulting in the homeowner keeping their home for an extended period of time until the Court determines the homeowner’s rights. In many instances, the paperwork filed by the Bank or its lawyer is either incorrect, fraudulent or otherwise defective. Those defects in the paperwork are allowing experienced foreclosure defense attorneys to help homeowners even after the bank has obtained a judgment against them or a foreclosure sale is about to occur or has already occurred. In many instances, just the filing of faulty documents by the bank and/or its lawyer is itself enough to set aside a judgment and/or foreclosure sale.  So, don’t just walk away.  Contact us today to see how he can help you.

Boundary Line Disputes

If a survey was done when at the time of the purchase of the property, the survey should reflect the boundary lines. Prior to erecting a fence on a boundary line, an updated survey could be ordered which reflects the accurate boundary lines. This may be impossible, due to perhaps the age of the property or the wording of the deed. (Some older deeds can contain legal descriptions such as “52 feet from the bend in the stream” on a piece of land, which has only a dry riverbed where a stream once existed.) In such a situation, the owner may file a quiet title lawsuit and request the judge determine the boundary lines of the property. This procedure is generally more expensive than a survey due to the legal filing fees. Another perfectly acceptable alternative is for adjacent property owners to agree on a physical object, such as a fence, which could serve as the boundary line between the properties. Each owner would then sign a quitclaim deed to the other, granting the neighbor ownership to any land on the other side of the line both owners had agreed upon.

Subdivision Development

A subdivision is a parcel of land divided from a larger area; the purpose is to take a large tract and split it into smaller ones that are easier to develop and that can be developed independently of one another, increasing growth and maximizing use of space. This also speeds the process of zoning and selling off the land, and results in a fully completed area, albeit one that is divided into various smaller areas.

The creation of a subdivision usually begins with the application for a zoning permit by a developer working in the area. The city must approve the permit in order to determine whether or not the land can be developed, and how it may be zoned. Zoning is either for single or multi-family residences, depending on the needs of the area and the request of the developer. Once the permit is obtained, the area will be built up, often at a rapid speed.

Subdivisions typically surround a city center that is most often zoned to business and commercial use. As the city grows, subdivisions can spread in every direction, providing residential living areas that are within a short distance from the downtown without being directly in it. Many rural areas quickly get swallowed up into subdivision developments as a city grows, and local authorities often attempt to keep this type of growth from destroying the local area. However, in most cases the development of subdivisions occurs at a rapid pace, driven by a need for cheap, fast housing. Thus, subdivision growth is often considered an unfortunate side effect of the growth of a community.

If you own a parcel of land and you wish to sell it more easily, you may also be interested in the process of subdividing that land. If this is the case, you will want to talk to a lawyer who can help you to obtain the proper permissions from your municipality and zoning board to subdivide and sell the land.

Landlord-Tenant

If you rent your home you are covered by the Alabama Uniform Residential Landlord and Tenant Act (Section 35-9A-101)

Talk with an attorney before renting your house or residential property. Contact us today.

Title Searches

You should NEVER  buy a piece of real estate without obtaining a title search or a title insurance policy before you go to closing. An attorney or a title insurance company can provide this service at a reasonable rate. Contact us today for all of your title search needs.

Tax Sales/Redemptions

When a delinquent taxpayer refuses to pay his/her property taxes on or after January 1st, the Revenue Commissioner must begin the process of preparing to sell the property to satisfy the taxes due.

After all attempts to notify the property owner of delinquent tax are exhausted, the property is then offered for sale at public auction in the courthouse on the third Tuesday in May.

Do NOT buy real estate at a tax sale without first obtaining advice from a lawyer having experience in the field of Real Estate.

By purchasing a parcel of land in the tax sale, you are placing a “lien” on the property redeemable by the property owner through the Revenue Commissioner’s Office for up to three years from the date of the sale.  Upon redemption, the property owner is required to pay the buyer the initial delinquent tax and cost plus any additional property tax the buyer has paid up to the three year redemption period.  The property owner is required to pay the buyer interest on the sale amount.  The interest rate on tax sale property is 12% annually.

After the three year redemption period, the owner of the property is no longer able to redeem his/her property through this office and must communicate with the buyer directly.

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