Wills and Estates

What does an Estate include?

An estate includes all assets, property, investments and financial interests of an individual held outright or jointly. Your estate can include items such as real estate, stocks, vehicles, furniture, as well as jewelry and other personal belongings

What is Intestate Succession?

If you die without a valid will, your estate is distributed according to intestate succession. That means your estate will be settled based on the State laws that direct who will inherit from your estate. For example, if you are married and die without a valid will in Alabama, what your spouse gets from your estate depends on whether you have living parents or children. If you do have living parents or children, then your spouse shares the estate. If you do not, your spouse inherits all of your estate. Having a will would ensure that particular assets go to the person you designate rather than depending on State law to distribute your assets.

What is Estate Planning?

Both a will and estate planning give instructions about how your estate property will be distributed. While a will is a legal document that provides instructions for estate distribution after your death, estate planning is more involved than just having a will. Your estate planning determines how your assets will be preserved, and managed, and distributed from now until your death.

A basic estate planning package includes a Last Will and Testament, a Self-proving Affidavit, and a Living Will or Advanced Health Care Directive. Several other documents to direct your wishes and needs, such as a power of attorney for health care, a trust, and a power of attorney for finances, can be part of a more extensive estate plan.    

You may want to revisit your estate plan and provisions in your will at times of major life changes such as marriage, divorce, the birth of a child, the death of a beneficiary or the unavailability of an executor, as well as any changes to your estate assets including a significant purchase or an inheritance.

Why is it important to have a will?

A simple will is an inexpensive estate planning document in which you direct how and to whom you want your property distributed after you die. It can also provide for guardianship of your minor or disabled children. You do not need to have a large estate to justify having a will.

The provisions of a will may name beneficiaries to receive specific gifts or may leave the estate to designated heirs in shares or percentages. Specify alternate beneficiaries in case the primary beneficiaries don’t survive. The will should also provide for a personal representative or executor, and an alternate in case the first person is unwilling or unable to act, who carries out the will as written. Other provisions may include stating how debts, expenses and taxes will be paid or to provide a caretaker for your pets.    

A valid will must meet certain legal requirements. Alabama law requires that a person making a will must be 18 years of age or older, of sound mind and under no undue influence. The will must be signed by the maker and witnessed by at least two people.

Under Alabama law, a will with a notarized, self-proving affidavit can be admitted to probate court without the testimony of the witnesses.

Your signed or executed will should be placed in a secure location for safekeeping.

You should then inform the person you chose as an executor or personal representative where your will is being kept so that they can access it when the time comes and begin their work to distribute your estate according to your directions.

What is not covered in a will?

Certain assets of your estate pass outside of your will and are not subject to probate. Such assets include property titled in joint ownership, payable on death accounts, life insurance, retirement plans and accounts, and employee death benefits.  These assets pass automatically at death to another person, and your will is not applicable to them unless they are payable to your estate.

What is a Living Will or Advance Health Care Directive?

A Living Will or Advance Health Care Directive is a legal document you execute which states whether you want certain medical treatment in the event that you have a terminal illness, are expected to die within a relatively short time, or are permanently unconscious.

Your Living Will or Advance Health Care Directive becomes effective when you are no longer able to make and communicate your own wishes. To make sure that your wishes are enforced, you can go one step further and appoint a representative by executing a separate durable power of attorney for health care document.


A trust is a legal contract where the grantor, the person who has the assets, makes arrangements for a person or entity, a trust administrator, to hold and manage those assets in trust for the benefit of those you designate as beneficiaries. A trust is designed to accomplish the purposes of property management and eventual disposition of property.

Creating a trust provides beneficial estate protection and ensures the proper distribution of assets. If your property has limited value or if most of the property has joint ownership, a trust may not be the best idea. A trust created during your lifetime may be revocable, meaning the terms can be changed by you; or it may be irrevocable, it cannot be revoked or changed. An irrevocable trust has the benefit of limiting inheritance taxes for estates worth than $5.4 million.  

A common type of estate planning trust is a revocable living trust or inter vivos trust made during your lifetime. This trust avoids the administrative and legal costs of probate. Unlike the property listed in your will, the property in a living trust passes directly to your inheritors. You simply create a trust document and then fund the trust with the transfer of property. Many people name themselves as the trustee to maintain control over the trust property. At their death, a successor trustee assumes responsibility.

A testamentary trust is a trust that has its provisions set out in your will and becomes effective and irrevocable at your death. A trustee is appointed to manage the assets of the deceased. This type of trust is commonly used when the beneficiary is a child or disabled. Property passes into the trust by way of the will and is subject to probate.

Young parents may choose to create trusts either during their life or by wills for the benefit of their children in case both parents die before all their children have reached an age of sufficient maturity to handle property. A trust permits assets to be held as a single undivided fund to be used for the support and education of minor children according to their respective needs. A trust can then provide for eventual distribution when all children reach adulthood or a specified age.

A person may also decide to choose to create an irrevocable Special Needs Trust to provide for a disabled child or other disabled family member to have access to resources that are managed on their behalf without reducing their eligibility for public assistance with Social Security disability benefits, Medicare or Medicaid.

What is the purpose of Probate? 

Probate is a verification and distribution proceeding involved with identifying estate property, paying legitimate estate debts, and distributing property to the beneficiaries or heirs in accordance with the laws of the state and the directions in the decedent’s will. The probate court oversees the process of administering the estate of the deceased. The probate judge will appoint a person to handle the estate administration who can be either an executor or personal representative named in the deceased person’s will or, if there is no will or the will is incomplete or invalid, an administrator. During the probate process, a lawyer can represent you by providing advice and handling proceedings in court.


What is Bankruptcy?

Bankruptcy is a legal proceeding in a federal court when a person or business seeks relief from liability for certain debts. The bankruptcy code is set out in Title 11 of the United States Code. Both Chapter 7 and Chapter 13 bankruptcy offer immediate protection from creditors after the petition is filed with the U.S. Bankruptcy Court.

What is the difference between Chapter 7 and Chapter 13 bankruptcy?

  • Chapter 7 Bankruptcy

To qualify for Chapter 7 bankruptcy, you must meet the income requirements. This bankruptcy is also called liquidation because some of your property can be sold to repay creditors. There are certain exemptions that protect some of your property from being sold.  If you are married and filing jointly for bankruptcy, each of you are entitled to claim exemptions. In most cases, a Chapter 7 bankruptcy will take about four months from filing to discharge.

  • Chapter 13 Bankruptcy

If you have sufficient income or want to protect certain non-exempt assets, a Chapter 13 bankruptcy plan allows for your debt to be reorganized so that your monthly payments become more affordable. You propose a monthly payment plan based on your disposable income, taking into account the value of your non-exempt assets. Once your reorganization plan is approved by the court, you must make the monthly payments to reduce or eliminate the amount you owe creditors. This bankruptcy gives you a chance to catch up on missed mortgage or car payments and can allow you to keep your home or car. A Chapter 13 bankruptcy will take about three to five years from filing to discharge.

What is the means test and how is it used?

An individual must pass one part of the means test to qualify for Chapter 7 bankruptcy. There are two parts to the means test:

  • Part 1 – The first part of the means test is to measure your gross household income against Alabama’s median household income for families the same size as yours. If your gross income is less than the median, you qualify for Chapter 7.
  • Part 2 – If your gross income is greater, the second part of the test factors in your “allowed” monthly expenses to see whether you have enough disposable income to repay unsecured debts. Those who do have enough disposable income to pay back at least some of their debts will not be eligible for Chapter 7. A repayment plan under Chapter 13 bankruptcy would then become your option.

What are the main steps in filing for bankruptcy?

  • Gather your financial records. You will need to organize your records so that you can list all of your debts, assets, income and expenses. It is important to list every creditor you have. It is also important to provide information about your financial situation so that the court can fully evaluate your bankruptcy case.
  • Get credit counseling within 180 days before filing for bankruptcy.  You are required to complete credit counseling before you file for bankruptcy. The counselor must be from an approved provider listed on the U.S. Courts website. Most credit counseling agencies offer this service online or over the phone. The certificate of completion you receive must be part of the paperwork when you file your petition for bankruptcy. A second course on debt management must also be completed before discharge.
  • File the bankruptcy petition. The Chapter 7 or Chapter 13 bankruptcy petition must be completed and filed with the court along with supporting documentation.
  • Meet with creditors. When your bankruptcy petition is filed and accepted by the court, your case is assigned to a court trustee, who sets up a meeting with your creditors. You must attend, but the creditors do not have to. This is an opportunity for the creditors to ask you or the court trustee questions about your case.

What is bankruptcy protection?

When you file a bankruptcy petition, the court enters an automatic stay order immediately protecting your assets from creditors’ collection efforts and notifies all the creditors you listed in your bankruptcy petition. While the automatic stay order is in effect, you have bankruptcy protection that prevents creditors and collection agencies from trying to collect from you. This means they cannot call and harass you; they cannot file a lawsuit to collect the debt; and cannot enforce collection by taking assets, such as foreclosing on your house, repossessing your vehicle, or garnishing your wages.

There are statutory exceptions to the automatic stay and some creditor activities can only be delayed rather than stopped by an order. For example, if you are behind on paying your utilities, such as gas, electric, or water, and are facing a shut-off from a utility company, a Chapter 7 bankruptcy automatic stay stops the utility company for 20 days. Another example is that if your landlord already has a judgment of possession against you, the automatic stay will only temporarily delay not prevent eviction.

What is a bankruptcy discharge?

When the bankruptcy court grants a discharge order in your case, it permanently eliminates your obligation to pay all eligible debt. This means that former creditors of those discharged debts listed on the order can no longer undertake any type of collection activity against you.

Do I need to have a lawyer to file for bankruptcy?

You are not required to hire a lawyer to represent you in your bankruptcy case. However, having a bankruptcy lawyer is a recommended and affordable investment as you make critical decisions about your financial future.  

Life after bankruptcy

While it is true that a bankruptcy stays on your credit history for several years (up to 10 years for Chapter 7 and about 3-5 years for Chapter 13) and will adversely affect your credit score, there is a lot you can do to begin rebuilding your credit once you have the bankruptcy discharge order. Use the bankruptcy discharge as a fresh financial start and put a recovery plan in place:

  • Review your credit reports for accuracy and dispute incorrect entries.
  • Maintain consistent residential and employment histories to show you are stable and reliable.
  • Stay current on all of your monthly bills and other payments so that your post-bankruptcy credit record stays clean. Payments will appear as positive entries on your credit report and will tend to increase your credit score.
  • Continue to be extremely watchful of every expenditure so that your expenses don’t build beyond what you can afford to cover.
  • Keep a checking or savings account with some available funds for emergencies.

As you continue to work on your credit, you may want to think about taking out a credit-builder loan at your local credit union. These loans are designed to help people establish or rebuild credit. The amount you borrow, which is small—typically no more than $1,000—is placed in a special savings account, where it earns interest but is inaccessible to you. Reports of regular and timely payments made to at least one credit agency will help build your credit. Once the loan is paid, you gain access to the funds.


Veterans Administration (VA) Disability Benefits

Am I eligible for Veterans Administration (VA) disability benefits?

You may be able to get VA disability benefits or compensation if you have a service-connected condition and you have served on active duty.  In some circumstances you may be able to get benefits if you were injured or became impaired during inactive duty training.  You must have been separated or discharged from service under other than dishonorable conditions.

You must also have at least one of the following:

  • Got sick or injured while serving in the military—and your condition can be linked to your military service (in-service disability claim), or
  • Had an illness or injury before you joined the military—and your military service made it worse (a pre-service disability claim), or
  • Have a disability related to your active-duty service that didn’t appear until after you ended your military service (a post-service disability claim)

What conditions are covered under VA disability compensation?

You may be able to get VA disability benefits for conditions such as:

  • Chronic back pain resulting in a current diagnosed back disability
  • Breathing problems resulting from a current diagnosed lung condition or lung disease
  • Severe hearing loss
  • Scar tissue
  • Loss of range of motion (problems moving your body)
  • Ulcers
  • Cancers caused by contact with toxic chemicals or other dangers</li
  • Traumatic brain injury (TBI)
  • Posttraumatic stress disorder (PTSD)
  • Depression
  • Anxiety

Get more information about conditions that may be covered

What is a VA disability rating?

The VA uses the “whole person theory” to determine your disability rating. The combined or total disability rating is a percentage based on the severity of your impairment(s) and how much your disability decreases your overall health and ability to function.

How is my VA rating used?

The VA uses your disability rating to determine your disability compensation rate, and it affects the amount of money you receive from the VA each month. The VA also uses your disability rating to help determine your eligibility for other benefits, like VA health care.

How does the VA decide my disability rating?

The VA bases your rating on evidence provided from various sources, including:

  • Documentation you provide, such as  a doctor’s report or medical test results, and
  • Results of your VA claim exam if the VA determines you need this exam, and
  • Any other information we may get from other sources, including federal agencies

What evidence do I need to support my VA disability case?

You can help to support your VA disability claim by providing relevant evidence, such as:

  • Documentation from your time in the service
  • Documentation of service-connected disabilities
  • VA medical records and hospital reports
  • Private medical records and hospital reports 
  • Certified statements from licensed professionals that have examined you, interviewed you, or reviewed your records
  • Supporting statements from family members, friends, clergy members, law enforcement personnel, or those you served with describing your claimed condition and how and when it happened, or how it got worse

Are my dependents covered under VA compensation?

VA Dependency and Indemnity Compensation (DIC) coverage is available for widows and children of veterans who died of service-connected impairments. For example, a Vietnam War veteran exposed to Agent Orange developed heart disease. If the veteran was receiving veterans benefits for heart disease and then died of heart disease, the family left behind may be eligible for benefits.

How long does it take the VA to make a decision?

Average number of days it takes the VA to complete disability-related claims in March 2020 is 79.9 days

How can a VA accredited representative help me with my VA case?

An accredited representative is a professional who is trained and certified in VA claims and appeals you choose to work with you to file your VA case in an effort to get you access to VA benefits.

VA disability benefits determination go through a complex process of application, denial, appeal, and approval.  Throughout this process, you’ll get letters from the VA asking for documents and other information. When we represent you, we will help you take the actions you need to prove your case.  There are no up-front costs to you. If you win, our VA disability benefits lawyers are paid a one-time percentage of the settlement. If we don’t win your case, you don’t owe us anything.

Social Security Disability Benefits

When should you apply for Social Security Disability benefits? Apply for disability benefits as soon as you are disabled and unable to work, even if you are receiving workers’ compensation or other non-wage compensation. Social Security pays disability benefits to adults who can’t work because they have a medical condition that has lasted or is … Read more