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Estate Planning: Managing your Affairs

By Robert A. Tufts, PhD, JD, LLM, Attorney & Associate Professor, Auburn University

Signing legal papersDo you know the answers to the following questions?

  • Who will make health care decisions if you are unable to make them yourself?
  • Who will manage your financial affairs if you become feeble or are in a nursing home?
  • Who will take care of your minor children (or you or your parents) if you are not able?
  • Who will own your property after you are gone?
  • Who is your personal representative and will they have to post a bond or file an inventory?

An estate plan consists of at least three documents: an advance directive for health care, a power of attorney, and a distribution plan in either a will or a trust. The Alabama Cooperative Extension System (ACES) offers workshops on these topics at various locations across the state. Consult the ACES calendar at www.aces.edu to find a workshop near you.

Advance Directive for Health Care

The advance directive for health care that replaced the living will is a document that has been standardized for the state of Alabama and the verbiage can be found in the Code of Alabama (1975) §22-8A-4. The advance directive for health care provides an opportunity to make your wishes known if you are terminally ill or permanently unconscious. It also enables you to appoint a health care proxy to make other decisions concerning your health care if you are unable to make those decisions yourself.

Durable Power of Attorney

The durable power of attorney (DPOA) allows you to appoint an attorney-in-fact (not an attorney, but a trusted person) to manage your financial affairs if you are no longer able to manage them yourself. A DPOA can give general powers, anything you could have done, or limited powers, such as writing checks on your bank account. However, this person is not authorized to sell your house. The DPOA is effective during your life even if you are incompetent (durable), but terminates at your death. The DPOA, by default is effective when signed, or it can be effective at a future date or upon the occurrence of an event, such as your incapacity. If you do not have a DPOA and you cannot manage your financial affairs the court will appoint a conservator to manage your financial affairs.

Will or Trust

Your assets will be distributed after your death. If you want to determine the recipients, you have to write a will. You have to be at least 18 years of age and competent to write a will. Wills can be fairly simple, “all to my spouse if they survive; otherwise, to my children in equal shares, per stirpes,” or they can be more complicated where individual assets are devised to certain individuals, even to the point of creating a trust to hold assets for some period of time or until a future event occurs. A will can be changed or revoked at any time during the writer’s competency. The personal representative (new word for executor or executrix) collects all your property after your death, pays your bills, and distributes property according to your will.

Your will does not determine the distribution of all of your assets. Anything with a beneficiary designation, for example, life insurance or retirement accounts will be distributed according to your beneficiary designation, and jointly owned property will belong to the survivor. Your distribution plan can be in a trust instead of a will. A trust will give you more control over the timing and condition of distributions. With a will assets are distributed at the end of the probate period regardless of the age of the devisee. A trust could hold assets until a child graduated from college or bought their first house.

You should consult an attorney before developing your estate plan. But the more you know the better the plan.


Reference

FindLaw. (2013). ALA CODE § 22-8A-4: Alabama code - Section 22-8A-4: Advance directive for health care; living will and health care proxy.