Why You Should Not Have an Investment Broker or Insurance Agent do Your Estate Plan

Perhaps you have got a local insurance broker or investment advisor who has long been your most trusted source of investment and retirement planning advice. This person has helped you build successful investment products, told you just when to buy and sell stocks, and maybe even led you to substantial wealth throughout your working years. Now, as you approach retirement and your golden years, you are considering how you want to establish your final estate plan to best preserve your assets for your heirs and leave a sizeable legacy for those you love.

 

Do you go back to your insurance agent or investment advisor? Do you hire a lawyer?  Ultimately, it is entirely your decision. Before you make your choice, here are a couple strong reasons to consider hiring an experienced estate planning attorney instead of a commissioned sales person.

 

What Duties Does Your Insurance Agent or Broker Owe You?

 

As the old adage goes, ‘follow the money.’ If you want to know who is really looking out for your best interests, just ask yourself how your trusted advisor gets paid. Insurance agents and investment brokers are generally paid a commission, meaning the more they sell you, the more money they make. Therefore, a lot of insurance agents are keen to lobby for you to purchase annuities and whole life insurance products. Perhaps a reverse mortgage or bond product would be a good fit. Ultimately, many of these so-called ‘investment products’ are nothing more than poor investments that mostly benefit the salesperson who is pushing them.

 

Should Your Agent or Broker Even be Handling Estate Plans at All?

 

The Alabama State Bar Association takes a strict view of the unauthorized practice of law. While many investment advisors may be wonderful individuals with good intentions, they should not be advising clients on complex legal rights, such as trusts, estate planning, and the drafting of wills. Many investment advisors will claim that they have the documents reviewed by an attorney, who in turn advises you, the client. These types of loophole options do not serve the consumer well. After all, where do that lawyer’s loyalties truly rest? With you or the advisor?

 

Advisors are Not Necessarily Fiduciaries

 

There is still talk of a full repeal of the fiduciary rule, a Department of Labor (DOL) rule that would require financial planners, investment brokers, and other industry “advisors” to act in a fiduciary capacity.

 

A fiduciary is someone who is legally bound to act in their client’s best interests. Attorneys are bound by law to act in their clients’ best interests. This is one of the touchstones of the attorney-client relationship, and it is one of the key reasons why the legal profession self-regulates itself by harshly punishing those attorneys who violate this rule.

 

However, historically financial advisors had no such requirement. To date, there are continuing appeals and delays to the start of the rule. In fact, many suspect that the rule will never fully be enforced or implemented. Currently, brokers can sell products that make them a profit, even if totally adverse to their clients’ interests. Under the so-called fiduciary rule, advisors would be required to provide more transparency and notify their clients when they have a conflicting financial interest in selling products.

 

Since 2016, the rule has seen court battles and a litany of political discourse. Financial Times did a great job of explaining how the rule has certain pros and cons for consumers, but for now, the fact remains that many advisors are not required to act in their clients’ best interests.

 

Get Ethical and Personalized Estate Planning Advice Today

 

Throughout the Birmingham area, the lawyers of Five Points Law Group are available to consult with clients to help families get the competent, compassionate, and accurate estate planning advice they need in order to preserve their legacies for generations to come. Call to schedule an appointment today.

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Can I Get a No-Fault Divorce in Birmingham?

The term “no-fault” divorce is often overused and misused. For those who are considering getting divorced in Birmingham, AL, it is important to speak with an experienced divorce lawyer who can offer realistic and accurate advice on the options available. Remember, just because something is available does not always mean it is your best choice. Contact Five Points Law Group to get help with your divorce today.

Alabama Grounds for Divorce

Traditionally, one party to a marriage had to bring ‘allegations’ against the other party, claiming that they did something to violate the marriage in order to get a divorce. These were called “grounds” for dissolution of the marriage. Many feel these are antiquated concepts that no longer have a purpose in our society, yet most states still maintain some variation of grounds in their statutes.

In Alabama, the basic grounds for divorcing are:

• Adultery
• Incapacity of one spouse (mental or physical)
• Wife was pregnant at the time of marriage and did not tell the husband
• One person gets sentenced to jail for seven or more years. (grounds after two years in prison)
• Crimes against nature
• Alcohol or drug abuse
• Insanity (mental disability for more than five years)
• Domestic Abuse

Divorce Without Grounds

If none of the above grounds exist or you do not wish to bring public allegations against your spouse, you can also plead either of the following:

• Irretrievable breakdown
• Abandonment

In general, Alabama courts have a mandatory 30-day waiting period before any order can be granted. Assuming there is no dispute as to the allegations in the petition for dissolution of marriage, you might be able to get divorced in just a little over a month. Of course, in reality, there are generally a number of factors that keep that from happening. For instance, here are a few things that can delay getting your divorce granted:

• Your spouse needs time to consult with an attorney
• There are contested issues, like custody of children or property division
• You require time to resolve debts or sell assets in order to determine the marital estate
• You have difficulty finding or ‘serving’ your spouse with the petition

Making Divorce Simpler

Many people think hiring a lawyer will drag things out and make a divorce more complicated, but this is not true. In fact, people who have been struggling to handle their own divorce for months are often quite surprised at how efficiently and quickly a divorce can be handled once an experienced attorney gets involved. Sometimes simple misunderstandings of a court procedure or a failure to put things into the correct format for a judge can result in documents not being reviewed in a timely fashion or a judge not understanding what you are trying to communicate.

Attorneys who regularly deal with divorce cases can generally navigate the system better to get results. Whatever you do, never try to handle a highly contested divorce involving child custody without consulting an attorney. Even a small mistake could cost you dearly. For a help with all of your divorce and custody questions, call Five Points Law Group today.

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FAQ for Long Distance Divorces

A lot of couples are already separated by distance before they file for divorce. Here are some of the more common frequently asked questions that Birmingham family law attorneys receive when helping families through long distance divorces.

 

If we live in different counties, where do we file for divorce?

 

According to Section 30-2-4 of the Alabama Code, there are specific rules about where you can file for divorce. In general, you can file for divorce in:

 

• the county where the defendant lives
• the county where you both lived together at the time when you separated
• if your spouse moves out of Alabama, then in the county where you reside

 

If my spouse moved away, can I still file for divorce in my own county?

 

Yes. In most cases, you should file for divorce in the county where you both lived together. There are going to be cases in which things get complicated. Perhaps you and your spouse have gotten separated several times, or your spouse moved away, then you left the county, then you came back. Having an experienced divorce attorney review your situation is the best way to ensure that you are filing your divorce in the right place.

 

Which school will the children have to attend?

 

The court is going to focus on making sure that all decisions are in the best interests of the children. If your children are already attending school and well settled into a routine, the court will generally prefer to make sure your children are not uprooted and moved to another school, especially in the middle of a school year. There are, of course, exceptions. The court will also look at which location offers the best support system (e.g. existing friends, extended family, etc.).

 

If I had to move away for work, will I have to travel back to my original residence for the trial?

 

Perhaps. In many cases, if you move away from the county of domicile, and the divorce is initiated in that county, you probably will have to litigate the matter in that county, even if you had to leave. In other words, you do not get to move the case just because life took you elsewhere, but you do not have to be at every court appearance. A good divorce lawyer can handle most of the routine appearances for you. Naturally, you would almost always have to be at trial.

 

Can my spouse move away and take my children to another state without my consent?

 

Usually not. In most cases, the court is going to be strict about not letting either party remove the children to a faraway location without very good reasons. Just getting a good job in another state is not usually a good enough reason to take children so far away that they would not be able to see the other parent. As with everything, though, there are exceptions you should discuss with your attorney.

 

What if I have to move to another state for a job?  Can I file for divorce there?

 

Usually not. The law requires a court to have jurisdiction over both the subject matter and the people. Just because a foreign or out of state court might have jurisdiction to hear a case involving you, does not mean that court has any jurisdiction to decide a case involving your spouse. For instance, if you move to Wyoming, it would be unfair to expect your Alabama spouse to defend a divorce in a distant state in which he or she has never lived.

 

Getting Help With a Birmingham Divorce

 

If you are dealing with a complicated long distance divorce, call Five Points Law Group to get help with your Birmingham divorce now.

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Five-Step Guide for Military Members Planning Divorce While Stationed Overseas

It is no secret that military service can be hard on marriage. For those serving in overseas duty stations or on deployment, this can be even worse due to long gaps between communication and the potential for infidelity and other obstacles to a successful marriage. It is sad to see a marriage end, especially when one spouse is thousands of miles away serving in the military. If you have made the decision to get divorced while still stationed abroad or while on a deployment, there are some things you should be doing right now to prepare for your divorce when you get home.

At Five Points Law Group, we are committed to serving those who serve our country. We know that our fighting men and women put their lives on the line every day, so when it is time for you to take the next step in your divorce, we are here to help make things as smooth and painless as possible. Nothing will make it easy, but the help of an experienced Birmingham divorce lawyer can often speed things up and help you avoid costly mistakes.

Step 1: Prepare Mentally

This is going to be tough. Build a support group, talk to a Chaplain or other trusted individual who can help you build up your emotional and psychological reserves for what lies ahead. You need to be focused 100% on your military objectives, so if you are unfocused or in emotional turmoil, you only put yourself and others at risk.

Step 2: Talk to a Lawyer Immediately

This may be tougher for some than others, but in today’s high-tech world, most service members have fairly frequent access to the Internet or telephone communications. Contact an experienced divorce lawyer near your home in the U.S. There are several reasons you want to do this early:

• Jurisdiction: You need to make sure you know exactly what jurisdiction applies. Do not assume that you can file for divorce in the state where you are stationed.
• Cost: By speaking to a lawyer early, you can begin to put together a plan for paying for your divorce. This may require you to budget your funds carefully while overseas.
• Information: An attorney can help you develop a plan for gathering the necessary paperwork and information you will need in order to file for divorce.

Step 3: Paperwork

Perhaps the single most difficult part of preparing a divorce while stationed overseas is that you do not have access to everything you need. For instance, you may be depending on your spouse back home to handle the budget, pay the bills, and make financial decisions while you are away. You may have limited access to banking information, investments, retirement plan documents, and other important items that will be necessary while filing for divorce. Now is the time to begin making a list of the important documents you will need, and maybe even have your attorney or a trusted friend back home gather these on your behalf.

Step 4: Privacy

Depending on your situation, it may be wise to get off of social media for a while. Or, at a minimum, enhance privacy settings. Also, make sure that you change any and all passwords on the following:

• E-mail addresses
• Social media accounts
• Online banking or retirement plan accounts
• Any other online accounts or logins that you want to be private

Never communicate with an attorney via e-mail unless you are 100% sure that your spouse cannot access that email account. Assume your spouse knows your login and change it immediately.

Step 5: File Your Petition

Once you have got everything in place, you can often use a power of attorney to handle much of the legwork back home. An experienced attorney can often help you file for divorce even while you are still stationed overseas. In some cases, such as when a trial may be necessary, you will have to wait in order to complete the divorce when you get back.

If your permanent duty station is located in Alabama or you and your spouse are from the Birmingham area, contact a local divorce lawyer from Five Points Law Group to discuss your options today.

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Conservator vs Guardian: Protecting Minors and Disabled Adults

You may have heard the terms “conservatorship” and “guardianship” used somewhat interchangeably. While similar, there are important differences between these ideas. A court sometimes has to get involved to protect a minor child or an adult who has mental and cognitive deficiencies that limit his or her ability to carry on affairs without assistance.

 

Whether it is a child or a disabled adult, Alabama courts require the matter be resolved through a probate court. In some situations, the person merely needs someone to make healthcare decisions on his or her behalf. This is generally done through a power of attorney. Absent a valid power of attorney, a court may appoint a guardian. If the person’s financial assets and estate are in need of protection, the court may also appoint a conservator. The guardian and conservator can be the same person.

 

What Does a Guardian Do?

 

Under the Alabama Code 26-2A-108, a guardian is “responsible for health, support, education, or maintenance of the ward.” A “ward” is the individual that requires a guardian (can be a child or disabled and incapacitated adult). These are broad responsibilities and powers. However, the guardian is “not liable to third persons by reason of that responsibility for acts of the ward.” In other words, the guardian does not automatically become personally responsible for the ward’s debts or actions.

 

A guardian can (not an exhaustive list):

 

• Make healthcare decisions
• Select medical providers
• Discuss medical care and obtain records
• Handle health insurance matters

 

What Does a Conservator do?

 

A conservator, on the other hand, is in charge of the person’s estate. This means money, investments, bank accounts, and so forth. Not everyone will have an estate; therefore, the majority of disabled adults and young children will only require a guardianship. However, when there is money (or the potential receipt of money, such as through a lawsuit), then a court can appoint a person or corporation to manage the finances for a ward. This is called “conservatorship.”

 

According to Alabama Code 26-2A-152, a conservator has the power to do the following things on behalf of a ward. This list is not exhaustive:

 

• Invest and reinvest funds on behalf of the ward
• Act as fiduciary
• Collect, hold, sell, and rent real property
• Make reasonable repairs to real property
• Manage bank accounts
• Borrow money for limited purposes
• Invest in stocks, bonds, and mutual funds
• Access safe deposit boxes
• Hire attorneys, accountants, and other helpful professionals
• Pay bills

 

Who Should be a Guardian or Conservator?

 

Really anyone who meets the minimum requirements can act as a conservator under the law. Of course, Alabama provides a priority list of people who are presumed to be best suited for the role. First, there are those already appointed by the court (existing guardian would likely be given preference for conservatorship, unless there is a reason not to do so). Second, the law prefers anyone the protected person has self-chosen. For instance, a person may have designated a person or corporation to handle his or her affairs. Third, there are people with existing fiduciary duties under a power of attorney.

 

If none of the above exist, the court will begin looking at relatives in the following order:

 

• Spouse
• An adult child
• Parent or someone nominated in the ward’s will
• Any relative who has resided with the ward for at least six months
• Someone who is caring for the general needs of the ward
• A general guardian or Sheriff of the county where the ward resides

 

How to Become a Guardian or Conservator in Alabama

 

If you have a loved one in need of a guardian or conservator, you will likely need to petition a court for appointment. There are a lot of protective rules and restrictions in place, and the court’s primary goal will be to look upon the entire process skeptically in order to protect the disabled adult or child. It is absolutely imperative that you have competent and experienced legal representation throughout the process.

 

To discuss your case with an experienced attorney who understands Alabama probate law, contact Five Points Law Group in Birmingham.

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When Should You Update Your Power of Attorney?

Most people by now realize that it is important to have certain legal documents in place in the event of an emergency or life event. Powers of attorney (POAs) are generally considered fundamentally necessary planning documents because they control what happens if you can not make decisions for yourself. There are different types of POAs, and rules change from time to time, so planning is not a one-time event.

 

It is generally recommended that you revisit your estate plan at least once every five years, just to make sure that everything is still relevant and no changes are needed. If it has been a while since you looked at your power of attorney, here are some questions to consider when deciding whether you should update it.

 

Have You Gotten Married or Divorced?

 

People sometimes forget that they have created a power of attorney, only to discover years later that an ex-spouse is still listed as the agent. If you suspect you may still have estate planning documents like wills or POAs that still name an ex, it is probably a good time to look at changing those documents.

 

Have You Been Diagnosed With a Medical Condition?

 

Some medical conditions may require you to carefully rethink your plans. If you have a diagnosis that may require long-term care in a nursing home, there are specific provisions you may want to add in order protect loved ones and protect your assets. Likewise, if your new medical diagnosis gives you concerns about end of life planning, you will want to meet with an experienced attorney to review your options.

 

Have You Made Changes to Other Estate Planning Documents?

 

If you have recently changed a trust or will or have created or changed other estate planning documents, it is a good idea to again look at your POA to make sure it still accomplishes what you want it to.

 

For instance, your old POA may authorize your agent to make changes to your trust, in the event that you are unable and it is in your best interests. However, let’s say you made your trustee someone different than your agent under the POA. This could create confusion as to who is authorized to act with respect to the trust. Simple issues like this can become big problems later if there is a dispute between your agent and trustee. A careful review of the language of both documents may be necessary to ensure there is no ambiguity and you can avoid problems later on.

 

Was Your POA Written Before January 1, 2012?

 

The standard format for an Alabama Power of Attorney changed in 2012. All POAs drafted prior to January 1, 2012 are subject to old requirements. If your POA was written prior to that date, it may be a good idea to consult an Alabama estate planning lawyer to make sure the provisions are all still valid and up-to-date.

 

Experience Counts When Creating an Estate Plan

 

With years of experience helping people throughout Birmingham and the surrounding areas, the attorneys of Five Points Law Group are devoted to making sure our clients know their options and have the tools and information necessary to make the best decisions about their future. Come see us today, and set up your own confidential review of your estate plan.

 

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Three Common Scenarios That Lead to Estate Disputes

When a person dies leaving a large estate, it can be a bittersweet time for heirs. On one hand, there is the sadness of losing a loved one. On the other hand, there may be a large windfall that can forever change an heir’s financial picture. For these reasons, it can be an emotionally challenging rollercoaster for the survivors. Sadly, it is a volatile time for families, and in some cases, siblings and other family members turn on each other and otherwise peaceful discussions can deteriorate into chaos, bitterness, and turmoil.

Alabama will and trust contests are often filled with animosity and discord between relatives. Among the many reasons for this, there are three specific situations that lead to these disputes more often than others. If you are building your estate plan and foresee any of these situations being possible, then you should schedule an appointment to review your estate plan with an experienced Alabama estate planning attorney as soon as possible.

Scenario #1: Disinheritance

Perhaps the most straightforward and common scenario that leads to will and trust contests is a pure disinheritance of an heir. When omitting an adult child, spouse, or other presumptive heir, there are careful precautions that must be used in order to make sure the estate will not be forced to spend tens of thousands of dollars defending a challenge. Alabama law permits any person who is “interested in the estate” to bring an action to contest the will. Trusts are handled differently, but there is a similar procedure.

If you are the executor, you could easily spend a large share of the estate just defending the will. Careful planning can minimize these risks, as can open and frank communication with anyone you have chosen to exclude.

Scenario #2: The Late Life Marriage

Another common scenario is when a person remarries later in life. Adult children may be dismayed when a spouse who has only been a member of the family for a few brief years inherits a large share of the estate, leaving children largely without. The easiest way to prevent disputes is to make sure everyone knows your intentions and create legally valid documents long before you pass away.

Scenario #3: The Incompetent Change of Plans

This is becoming an increasingly more common problem. A person with a severe cognitive impairment, such as Alzheimer’s disease, dementia, and so forth, is generally not legally considered competent to make or revise a will or trust. Keep in mind, however, that mental capacity can fluctuate and be a challenging thing to prove, especially after someone is gone. Disputes often arise when a loved one changes an estate plan after being diagnosed with a mental impairment. Allegations can arise, charging other members of the family with taking advantage of the situation.

Help Before and After

If you need help planning or revising an estate document, such as a will or trust, the lawyers of Five Points Law Group want to help. If a loved one has died, and you foresee a dispute in the near future, we may still be able to help minimize the damage. Call us to schedule a consultation today.

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