Alabama Gazette - The people's voice of reason

I Don't Understand Why I Should Not Use Internet Available Forms For My Will , Power of Attorney And Living Will; Lawyers Are Just Too Expensive!

 


You will be surprised at how low the cost may be for estate planning. If you are pretty wealthy and will potentially require more complicated planning or even if you just have circumstances that require more complicated planning then yes your estate planning can run into the thousands of dollars. For the average adult, estate planning may only be a few hundred dollars.

Does that still sound like a lot? Then consider if a Last Will and Testament is improperly done it may require an intestate administration of the estate after the decedent’s death rather than being able to use the Will for probate. The difference is the person that seeks to be the administrator must be a resident of Alabama, must qualify under the requirements set forth in the Code of Alabama and must be bonded. Dependent on the value of the estate, the cost of the bond can equal or even exceed the cost of estate planning by a lawyer. To add insult to injury the named Administrator must submit an inventory of the estate and it’s value within sixty days after being named Administrator. Imagine how much fun that can be after someone has stockpiled their “stuff” after ninety years and that doesn’t include the hoarder that you might have the privilege to be the Administrator for. Let’s see there are five frying pans worth fifteen dollars, a washing machine worth $100, a dryer worth $100, a bed worth $75, a rug worth $100, a couch worth $400, antique table worth $225, 9 dinner plates worth $25, 10 salad plates worth $20, a 2010 Chevrolet Impala VIN xxxxxx, worth $10,000.00, a refrigerator worth $375 . . . . well you get the picture, no fun.

Some of the biggest errors I see are a lack of the minimum required witnesses (2 required) or the naming of only one personal administrator (executor/executrix) who has died before the decedent has leaving no named personal administrator. There may be internet available Wills that don’t provide adequate powers to the personal representative to do their job. Of course the internet Will may not really reflect what the decedent wanted as far as who to give their assets to. An internet Will may not have the Alabama “self proving” language which keeps the personal representative from having to locate the witnesses to the decedent’s signature and testifying in probate court whether the decedent signed the Will, whether he seemed to know what he or she was doing and whether it appeared if someone was coaxing the now deceased to sign a Will that they did not want to sign.

Financial powers of attorney can be very important during life especially when someone no longer has the ability to handle their affairs whether it becomes permanent or even if it is temporary. Of special importance is a durable power of attorney. A durable power of attorney must contain the language that the power of attorney may be used even in the person’s incapacity or under the 2012 statute the statutory form is by default durable.

Each time I assist a client with estate planning I review their existing documents if they have previously had estate planning done. In looking at some recent documents I saw a Will that only had one witness to their internet Will and their power of attorney in bold capital letters said “THIS POWER OF ATTORNEY CANNOT BE USED IN MY INCAPACITY”. Well that language defeated one of the major reasons for having a power of attorney.

Finally, you may recall a hospital admission where the clerk gave you an Advance Directive for Health Care (Living Will and Health Care Proxy) and encouraged you to fill it out, sign it and give it back. The clerk is not trained in doing Advance Directives and is not a lawyer so who knows how you might fill it out? And it’s not the clerks responsibility either!

Bottom line is having an attorney do your estate planning is more worthwhile than you think both from final cost to making sure everything meets the legal requirements and your wishes.

If you have a low income and few assets then consider calling the Montgomery Area Council on Aging or maybe the Jones School of Law Elder Law clinic where you may be able to have free estate planning documents done. The Alabama State Bar Lawyer Referral Service may also be able to guide you if you are not certain whom to turn to.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

Mailing address: Ronald A. Holtsford, Esq. • Ronald A. Holtsford, LLC • 7956 Vaughn Road, Box #124 • Montgomery, AL 36116

• (334) 220-3700 • raholtsford@aol.com

 

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