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Common Pitfalls in Estate Planning - Part II

Posted by Matthew J. Hornsby on May 16, 2012 at 3:35 PM Comments comments (0)

          Yesterday's post was the first in a series of common pitfalls that you should avoid when dealing with your estate planning process. Today's pitfall is one that most of us know about, but many neglect anyways.


Not routinely checking/adjusting your beneficiaries of life insurance policies, retirement plans, etc.


          Things change. Divorce happens. Loved ones pass away. Children are born. Because of this, it is important to periodically review the named beneficiaries on your assets, especially after a life changing situation (good or bad). When dealing with estate planning, some of your assets will be arranged so that they avoid probate, or in other words take care of themselves, without your Will deciding where the asset goes. An example we are all aware of is life insurance. If you have a named beneficiary on the policy, such as your spouse, the proceeds will pass to that person directly upon your death. Many retirement plans, pensions, bank accounts, real property, and other assets are the same way. Often, a spouse has a statutory right to certain assets, even if you name another person as beneficiary. If you are not clear about the beneficiary on any of your accounts or assets, call the financial institution holding the asset and find out.


          State law may kick in to automatically disqualify a divorced spouse from being a beneficiary, but it may not. Even if it does, that just means the asset now has no beneficiary at all and a whole other set of issues crop up. The best advice is to periodically review your beneficiaries to make sure they align with your current wishes.

Common Pitfalls in Estate Planning -Part I

Posted by Matthew J. Hornsby on May 15, 2012 at 3:20 PM Comments comments (0)

          As I wrote in my previous post, Legal Documents That Every (Responsible) Adult Should Have, the importance of having a Will can not be overstated. To take that a step further, the importance of having a solid estate plan overall can not be overstated. Over the next few days, I will discuss several common pitfalls that occur in estate planning. Consider these as you plan and execute your estate plan.


          Using an online company to produce your Will and other estate documents. I’m sure companies such as Legalzoom and others mean well. (Actually, I don’t even know if that is true). However, using a site such as that can have tragic consequences later on. In an effort to save money, many folks are turning to these sites in order to draft their Wills, Power of Attorney, Living Wills, and other legal documents. The sites often entice you with low prices, while promising professional results. Like anything else in life, if something sounds too good to be true, it probably is. These companies will not ensure that the document is properly witnessed and notarized. It becomes your responsibility to make sure that the attestation and notarizing are properly done and documented. Without this being done perfectly within the strict requirements of state law, your Will may be useless after your death.


          Further, the most critical part of the Will preparation process is meeting with your attorney to discuss your unique situation. An online questionnaire or drop-down menu from a website is not able to identify the nuances of your financial and familial situation. When I meet with a client regarding a Will we often discover that while their preconceived estate plan may technically be legal, following through with that particular plan will result in undesired consequences. Without talking with a human being you may never realize that Legalzoom is leaving you with an inadequate estate plan and a mess for those you leave behind.


          Finally, a Will is cheap even if you use an attorney. In fact, it is probably the cheapest legal task you will ever hire an attorney to do, and maybe the most important. It also may be your first encounter with an attorney and can be an important step in building a relationship that every person needs. Just like a family doctor, a family attorney is sure to come in handy at some point. That doesn’t mean you need to have an attorney on retainer – but you do need to know an attorney that you trust when you find yourself in a troublesome situation. Legalzoom probably won’t answer the phone when you find yourself being sued or your son has been arrested. Your family attorney will.


Check back tomorrow for more common pitfalls to avoid during your estate planning.

What Not To Do During a Traffic Stop - Part 2

Posted by Matthew J. Hornsby on May 8, 2012 at 3:20 PM Comments comments (105)

Here is Part 2 of yesterday's post:


          DON’T consent to the officer’s request to search your automobile. The law allows the officer to require that you step out of your vehicle and to pat you down in order to ensure his own safety. The law does not allow the officer to search your car without having probable cause of some evidence of a crime therein. That is, unless you consent to such a search, in which case the officer has free reign. Upon reading this, your first thought is likely something along the lines of “I’ve got nothing to hide, so what do I care if the police search my car?” The problem is, while you may not have anything to hide, your passenger may. A family member who left something in your car may. Or the person who borrowed your car last week may. The reality is, none of us can ever be 100% sure of what is in our car at any given time. If something illegal is in your car, it doesn’t matter if it’s yours or not – you can be charged with a number of crimes dealing with possession of drugs, contraband, alcohol, guns, or the all-encompassing “paraphernalia.” No good can come from consenting to a search. Lots of trouble can. The correct response to a request to search you car is something along the lines of “I’d rather you not. I really do need to be on my way.”


          DON’T argue with the officer. Getting an attitude or arguing with the allegations he is making won’t change his mind and may result in additional charges. Say “yes sir” and “no ma’am” and be polite. If you want to ask for leniency, then do it, but don’t be aggressive, and be polite if he refuses. If you think you have a case like my client in yesterday’s post, that’s what the courtroom is for. In the meantime, take your ticket and be on your way.


          DON’T forget that 99% of police officers are solid professionals, just trying to do their jobs and make it home safely to their families.

What Not To Do During a Traffic Stop - Part 1

Posted by Matthew J. Hornsby on May 7, 2012 at 3:15 PM Comments comments (0)

          There is something intimidating about seeing a police officer all decked out with his gun, handcuffs, pepper spray, radio, and whatever else goes in those leather pouches clipped to his belt. It’s that feeling of intimidation that makes you feel like you’re doing something wrong, even when you’re not. For the most part, this is probably a healthy level of respect for a profession that is both underappreciated and underpaid. However, this same intimidation can get you into a lot of trouble if not checked against reality…and the law. In that spirit, I have written a 2 part post of several things you should NOT do during a routine traffic stop. (These points are advice on how to act during a traffic stop, not how to get out of a ticket)


          DON’T pull over in a dangerous location. That is, don’t pull over in a place where you, the officer, or other drivers will be placed at risk. Our instinct tells us to pull over immediately or risk facing criminal charges for evading an officer. However, Alabama law specifically provides a defense to such a charge as long as “the person stop[s] his or her vehicle within a reasonable time and at a reasonable location based on the facts and circumstances of the stop.” Ala. Code §13A-10-53. I have successfully defended a client in the courtroom against this exact charge after he was signaled to by an officer however continued driving three blocks, pulling into his own driveway. He was arrested in the driveway and charged with 5 different offenses, including DUI, attempting to evade an officer, reckless endangerment, reckless driving, and running a stop sign (the initial reason for the traffic stop). We took the case to trial. He was acquitted (not guilty) of all charges except for running the stop sign, which he freely admitted to. His behavior during the stop were in line with the points of this post, and he came out on top. In a nutshell, don’t pull over on a bridge or when the shoulder is narrow. Don’t pull over in an unlit area at night. If you are close to a well-lit parking lot or police station, turn on your hazard lights and proceed there. The key is that your reaction to the officer’s signal be reasonable.


          DON’T unbuckle your seatbelt. My first instinct after turning the car off is to unbuckle my seatbelt. Lots of people are the same way, but the best action is to leave your seatbelt buckled throughout the traffic stop, unless the officer asks you to step out of the car. The officer may have pulled you over because of speeding or a blown tail light. If your seatbelt is off when he approaches your car, it’s your word against his on whether you were using it or not.


          DON’T get out of the car, unless told to do so by the officer. We see this on TV all the time. Getting out of the car can make the officer nervous and turn a routine traffic stop into something more. Stay seated behind the wheel and wait for the officer to approach your vehicle.


Part Two will be posted soon.

Legal Documents That Every (Responsible) Adult Should Have

Posted by Matthew J. Hornsby on April 26, 2012 at 3:05 PM Comments comments (0)

          If you are like most people, you probably don't give a lot of thought as to end-of-life or what I will call "special circumstances" documents. Most of us are busy enough worrying over work, getting kids to little-league practice, and unfortunately for many, figuring out how to pay this month's bills. We often believe that we will have time down the road to take care of things like our Will, Living Will, etc. However, while death and taxes are both certainties, we only know the due date for one. Because of this, it is important that we plan accordingly now, so that we, and those we leave behind, may enjoy the blessings of the future. Here are three legal documents that every adult should have, and a couple of others that may be useful, in special circumstances.


Will (or more formally, Last Will & Testament)

          Most people without a will cite one of two reasons. First, they argue that they don’t have much in the bank and they don’t own any property so there is nothing to “give away.” A will’s primary function may indeed be to devise and dispose of the deceased’s (testator’s) property, but there are other important functions of a will. Most importantly, if there is a minor child of the testator, unless the will names a guardian to take over the parental duties of that child, a court-battle could ensue. The simple act of having a will and naming a guardian within that will, can save hundreds or thousands of dollars in legal fees, and more importantly, the heartache and strain a legal fight can cause for surviving family members and the child or children themselves.


          Second, many believe that if they have no property and no children, a will serves no purpose. However, what may be true today may not be true a year from now. After getting married, having children, buying a house, or any of the other major life changes we encounter, the last thing people tend to do is run down to their attorney’s office and execute important legal documents. They are busy enjoying their new lives. By executing a will now, before those things happen, most future problems can be eliminated, even if you don’t know what property you may later acquire, or the name of your future wife or kids. If nothing else, because of state law provisions and attorney fees, not having a will can cost your surviving loved ones substantially more in the event probating the estate becomes necessary. Investing a couple hundred dollars now can save thousands after you’re gone.


Living Will (or Advance Directive)

          Most of us remember the Terri Schiavo case from 2005. After she fell into a prolonged vegetative state, her husband and parents fought in court over whether she should be taken off of life support. After 7 years and 14 appeals, her feeding tube was finally removed for the final time and she passed away. The reason I bring up Ms. Schiavo is to illustrate how a simple legal document could have saved some of the pain that both sides must have gone through in litigating this for so long. The court wasn’t easily able to determine whether Ms. Shiavo would have wanted her feeding tube removed or not because she had never executed a Living Will. This important document simply asks a series of questions about whether the signor wishes to receive certain life sustaining treatments in the event he or she is unable to speak for him or herself. Everyone should have a Living Will.


Medical Power of Attorney/Healthcare Proxy

          This document is used to name a person that will be authorized to make medical decisions on your behalf in the event that you are unable to speak for yourself. Unlike the Living Will above, this is not just for permanently unconscious situations. It may be used while suffering from a temporary ailment, which nonetheless, renders you unable to communicate with your doctor. Everyone should have a document naming a healthcare proxy, and this can often be done within the same document as the Living Will.


Durable Power of Attorney

          In 2012, Alabama passed and codified legislation radically changing many aspects of Power of Attorney (or POA) law. POAs executed prior to 2012 are still valid, as long as they were valid under previous law. But new POAs need to comply with this new legislation. This document authorizes another person (called your agent) to handle your personal or business affairs, such as check and bank transactions, signing contracts, conveying real estate, executing income tax forms, etc. It is possible to grant your agent a “general” power, allowing them to handle most matters on your behalf or any of several “specific” powers. While POAs are an important tool for many people, they are not for everybody, and great care should be taken to avoid granting a POA to someone you do not trust completely. By definition, you are giving great power over your life and finances to another person, and such a decision should not be taken lightly.


Trust Instrument


          Revocable and/or Irrevocable trusts can be an important aspect of your estate planning. This is one of my “special circumstances” documents, and like the Power of Attorney above, may not be for everybody. It is typically for somewhat wealthy individuals who are trying to avoid estate tax and probate implications associated with death. Unfortunately, for most of us a trust may not be useful, however it is worth discussing with your attorney or estate planner.