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How do I Contest a Will?  

Unlike a trust, a will cannot control your assets after you die. Instead, a will just determines where they go when you die. In other words, a will disburses your possessions and assets on death, while a trust continues to control assets well after you die.

For this reason, Alabama wills are overseen by probate courts, while trusts generally are not. Many times, after a loved one dies, the potential and expected heirs discover that a will either disinherited them or greatly reduced their share of an estate. Normally, this is perfectly legal. A living person may choose to leave their assets to whomever they choose. There are, of course, situations in which disinherited heirs may have a right to dispute a will.

For help with estate planning or breaking an invalid or fraudulent will, contact Five Points Law Group today.

What is an Alabama Will?

Under Title 43 of the Alabama Revised Statutes, the law provides for the creation and administration of wills. A will is generally defined as a legal instrument that dictates who shall receive what from your estate after your death. Things you can typically do with a will are as follows:

Designate your executor

Leave real estate

Leave cash and investments

Leave tangible property and heirlooms

Direct the handling of a probate estate

Waive your executor’s bond requirements

The law presumes that a decedent created the will as his or her final statement of wishes and intent. You will need to make a strong showing that the will is invalid in order to succeed in disputing it.

Grounds for Disputing a Will

Alabama law allows those who are “interested parties” to contest a will. A will contest must be filed in probate court where the will is filed. The following grounds may allow you to contest a will:

Disinherited spouse: In most cases Alabama law allows spouses to assert their right to an elective share of the estate, even if the deceased spouse tried to disinherit them.

Mental incapacity: A person must be of sound mind to make a will. Otherwise, the will may be held invalid.

Fraud: If you can prove the will was created through fraud, you may be able to get a court to invalidate it.

Duress and undue influence: A will should reflect the will of the person making it. If created under duress or through force, coercion or improper undue influence, it is not valid.

Technical requirements: A will must adhere to minimum statutory requirements. A lawyer can help you determine if the will meets all requirements.

  Time Limit on Contesting a Will

In general, you have just six months from when the will was presented to the court to dispute it. A person who is under a legal disability (mental impairment) or a minor has up to 12 months from the date when the legal disability is removed to contest a will. This can be complicated, so if a minor or someone with a mental impairment is negatively affected by a potentially invalid will, a guardian may need to be appointed to enforce the person’s rights. Do not rely solely on information found online, as there are complex nuances that can shorten or extend the time you have to dispute a will, and each case is unique.

Contesting an Alabama Will

Will contests can be complicated and sensitive situations. If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

How do I Break a Trust?

A trust is a unique method of preparing your estate. Many people use trusts to hold ownership of property, while maintaining long-term control over their estate plan. What happens when there are disputes between heirs, or someone becomes concerned that a trust was improperly created?  Many surviving family members want to know how to break a trust in order to allow an estate to pass the way it normally would, if not for certain problems. With this in mind, consider a few basic points about how one can actually undo a trust in Alabama. For help with estate planning or breaking an invalid trust, contact Five Points Law Group today.

What is an Alabama Trust?

Under Title 19 of the Alabama Revised Statutes, the law provides for the creation and administration of fiduciary agreements and trusts. A trust is generally defined as a separate legal entity that controls the use and ownership of property. You can put just about anything into a trust, from real estate to cash or investments. A trust is a contractual agreement that a person creates, which names someone to manage the assets within it, during and after the life of the person who creates it. Much like a corporation’s operating agreement, the trust must follow certain formalities to accomplish its intended goals. Some trusts are created to minimize taxes, others are created to preserve wealth, while others still are created to preserve the right to certain government benefits for disabled persons.

Grounds for Breaking a Trust

There are many reasons why someone might wish to break a trust. A trustor (the person creating a trust) can almost always revise, edit, or void a trust, unless the trust was made irrevocable for some reason. However, once that person passes away, it can be difficult for heirs to argue there are grounds for not following the expressed intent of the trustor. Here are just a few reasons why heirs may wish to do so:

Undue Influence, Coercion, or Duress

If you discover that your deceased loved one was the victim of strong coercion or acting under duress at the time he or she made the trust, then you may be able to petition an Alabama court to revoke the trust, allowing assets to pass to heirs through the state’s default rules. This is not an easy process, as the courts generally will require strong proof.

Mental Incapacity When Created or Revised

Sadly, unscrupulous heirs and caregivers often convince people to make deathbed changes to their estate plans, leaving everything to someone other than whom they normally would. If you suspect your loved one was incapable of making a voluntary change to a trust, you may have grounds to revoke the trust. Expect a long battle, and you will likely need the help of medical experts to show that mental capacity was lacking.

Invalid / Did Not Meet Legal Requirements

Perhaps the most straightforward option for breaking a trust is showing that necessary legal formalities were not followed. Improper witnesses, lack of witnesses, or inadequate or incorrect language may all be grounds to dispute the authenticity or validity of a trust.

Disputing a Trust in Alabama

If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

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Improving Communications With an Ex

When you are going through a painful divorce or custody fight with an ex, it can seem like even the smallest issues become major complications. Heated arguments can develop in a moment and over things that ought to be very simple. Even otherwise amicable relationships can begin to deteriorate, leading to a lot of unnecessary calls to the lawyer or trips to the courthouse. There is a way to avoid a lot of these contentious disputes and save time, money, and headaches. The trick is planning your communications in advance.

  Why Communication is So Challenging in a Family Law Case

  The Gottman Institute has long been a leading center for research on human interaction and communication, especially for families going through divorces. Dr. Gottman suggests that there are so-called “Four Horsemen of the Apocalypse” that can predict the end of a relationship. According to Gottman’s theory, these four characteristics or behaviors are:

  Criticism

Contempt

Defensiveness

Stonewalling

  When you and your ex are going through a divorce or you are fighting over custody of a child, these four communication problems are almost inevitable. Simple tasks such as meeting to drop off a child after visitation can become highly emotional moments that can feel almost akin to a battle. When you see your ex as an opponent, battling over a prize (e.g. your child), conflict and fighting is inevitable. So, what can you do?

  Three Useful Methods of Improving Communications

  Here are just three possible ways to improve the quality and type of communications with your ex:

  Alternative Mediums of Communication

  Sometimes the problem is not communication; it is verbal communication. If you find that it is difficult to keep the conversation civil, or you wish there was a record of the awful things your ex is doing, then you may just want to consider using technology to bridge the communication divide. Apps like Our Family Wizard allow divorced couples to communicate, plan visitation, reschedule school events, and more. In addition to reducing everything to writing, it also creates a record so it keeps people honest and can be a powerful tool in court if one party is violating arrangements.

  Huffington Post also provides an excellent list of joint-parenting apps that may be helpful, depending on your situation.

  Deliberate Communications

  Being deliberate just means thinking about what you wish to accomplish. While you are on your way to pick up a child after a long weekend of visitation with an ex, you should take the time to think about what you want to achieve during your interaction. Remind yourself that the goal is for your child to enjoy time with both parents, to grow up healthy and well-adjusted, and to feel loved. If you center your emotions and focus on those goals, you may find it easier to ignore minor frustrations like when your ex shows up 15 minutes late. If you have planned your communications in advance, then you are less likely to react in the moment.

  Using an Intermediary

  If your communications have truly broken down to the point at which every interaction leads to aggressive and erratic arguments, then it may be worth discussing your situation with an attorney. Sometimes an intermediary such as a trained Parenting Coordinator can be used in order to mediate disputes and create a smoother exchange. An intermediary can schedule visitation meetings, school events, and other difficult conversations. While obviously this should not be a permanent or long-term solution, it may be helpful for getting through a particularly rough patch.  Experienced divorce attorneys tend to work often with secondary resources such as these and can make recommendations for your particular circumstances.

  Talk to a Birmingham Divorce Attorney

  If you are going through a bitter and challenging divorce or custody dispute, do not let harsh words and difficult communications steal your happiness. Speak with an attorney who understands both the legal and the human aspects of family law. The more you understand about the process, the better you can cope with the challenges to come. Call Five Points Law Group to speak with an attorney today.

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Five Signs That You May be a Victim of Age Discrimination

The law says that you have a right to compete in the workforce without regard to your age. However, as you can probably guess, employers discriminate all the time. The question is how to recognize the subtle signs of discrimination. At Five Points Law Group, we can help you review the situation from an objective point of view and help you get to the bottom of things. You deserve to be treated equally, regardless of your age. With this in mind, here are just five quick signs that you may be a victim of age discrimination.

Sea of Youth

This is often more a concern in younger companies, like tech startups and businesses that cater to a younger target demographic. Of course, it can happen anywhere. What we are talking about is a tendency to hire younger workers. If you begin to notice that almost all employees are young or very young, or if you begin to notice that older workers who retire are all being replaced with very young workers, then you may have a problem. Keep in mind, this is not an absolute. If older workers with experience are applying for jobs and being passed over in favor of less experienced younger workers, there may be a problem.

Inappropriate Questions

If you are interviewing for a job and the interviewer is asking questions that sort of require you to disclose your age, then you may be facing age discrimination. For instance, you may hear questions like “well, you will be old enough to appreciate this” or “do you have grandchildren near here?” While these may not necessarily be anything serious, if used to gauge your age or ascertain your suitability, they are inappropriate.

Suggesting You do Not Have Enough Time Left

As morbid as it may sound, older workers with years of experience and expertise in their fields may not want to retire. Frankly, the law does not say you have to quit doing what you love. Some employers may worry that an older worker has too little time left before retirement to be useful to the company. Such questions or insinuations are strong warning signs of age discrimination.

Sudden Changes in Duties or Responsibilities

If you have worked for a business for years and enjoyed a lot of responsibility, you may find it unsettling when, upon turning 50 or 60, you are asked if you need to take a break or whether you can “handle” the workload. While subtle, you may even notice that people begin to treat you as though you are mentally or physically unfit, even without any cause. This can be another warning sign.

Unusual New Discipline

If, after years without any problems, you are facing constant pressure and being disciplined or reprimanded for seemingly arbitrary things all of the sudden, this could signal that superiors are trying to build a case to fire you under some other pretext.

Get Help Now

Do not wait until you have been terminated; call an experienced attorney today. You may have options for fighting to keep your job. If you have already been terminated, downsized, demoted, or suffered any type of adverse employment actions and you believe your age is involved, contact Five Points Law Group today.

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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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Six Common Myths About Family and Medical Leave Act (FMLA)  

Think you know your rights to leave? Think again. Many Americans take advantage of protections under the Family and Medical Leave Act (FMLA) each year, but many more have serious misconceptions about what the law is and how it works. When you are facing a serious medical condition and require time off of work to tend to your personal and family needs, contact an experienced employment attorney from Five Points Law Group. We can help you make sense of your situation and protect your rights if your employer is trying to violate them.

Here are just six of the most common myths about FMLA:

All Employees Have a Right to Leave

False. Not all employees or employers qualify. As a basic proposition, only certain people will qualify for FMLA leave. To be bound by FMLA, employees must have:

Worked for the employer for at least 12 months (comprising at least 1,250 total hours over the past 12 months)

Worked at a location where the company has at least 50 or more employees within a 75-mile radius.

As you can tell, many employers are not covered by the law.

I Can Use My Sick Leave After I Finish Leave

False. Actually, an employer may make use all of your paid leave, such as vacation and sick time, before you can invoke your right to FMLA OR require you to use such paid leave concurrently with your FMLA leave. The employer can require you to use up all the paid leave.

I am Entitled to 12 Weeks Leave Per Year

False. This is not how it works either. It is 12 weeks in a 12-month period. So, if you took leave from September 1, 2017 through December 1, 2017, you would likely be ineligible to take leave again until after December 1, 2018. It is not based on calendar year; it is based on a 12-month period.

FMLA is Paid if I Have Accrued Enough Paid Time Off

False. The two have nothing to do with each other. Your accrued paid time off, whether sick leave, personal leave, or vacation time, is something you have earned through your employer.  FMLA is unpaid leave that acts as a safety net to protect your job. Your employer will likely require you to use up all your paid time first. If you no longer require time off, then there is no reason to take FMLA.

I Do Not Have to Give My Employer Anything Except a Doctor’s Note

False. In most cases, you must have a legitimate reason, and your employer has a right to verify it. Here are the basic reasons you may qualify for FMLA:

Birth or adoption of a child

Time to care for a newborn or adopted child within one year of birth or adoption

To care for the employee’s spouse, child, or parent with a serious health condition

Employee has a serious health condition making it impossible to perform essential functions of the job

Any other qualifying situation arising out of the fact that the employee’s spouse, son, daughter, or parent is in the military (e.g. deployment, combat, injury, etc.)

Service Members and Their Families Have Extended Rights

True! Actually, this one is correct. Employees who otherwise qualify can get up to 26 weeks of leave in a single 12-month period to care for a covered family member (parent, son, daughter, next of kin, spouse) who is seriously injured or sick and is a military service member. This is known as military caregiver leave.

Talk to a Birmingham Employment Rights Attorney

When you are facing the loss of income or employment, you may have a lot of questions and be worried about how you will pay the bills. Do not continue to worry alone in silence. Call an experienced team of compassionate attorneys who can give you straight answers. You may even be entitled to financial relief in the form of compensation if you have been wrongfully terminated. Call Five Points Law Group today to learn more.

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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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Can I Get an Alabama Annulment Instead of a Divorce?

For anyone considering hiring a Birmingham divorce lawyer, there are a handful of things you should know. Alabama family law is complex, and nothing compares to working with an experienced attorney. The more you know about the process, the better prepared you will be. Many people enter into marriages and later discover things that they would have liked to know about their spouse before tying the knot. Sadly, in most cases, regret is not enough to avoid going through the divorce process. Alabama law does, however, give couples a few limited ways to get an annulment, which can have advantages over a divorce.

What are the Grounds for Annulment?

Under Title 30 of the Alabama Revised Statutes, there are a number of basic legal requirements that, if not met, can invalidate a marriage from its inception. Generally, if you are legally married to your spouse, then you must get a divorce to terminate the marriage. If the marriage was never truly valid or was entered into fraudulently, you may be able to proceed with annulment.

If any of the following apply, then you may be entitled to seek an annulment instead of a divorce:

You discover that you married a close blood relative

You discover that at the time of marriage, one of you was already still married to someone else

Spouse concealed that she was pregnant by another man

One spouse fraudulently mislead the other to believe that he or she would cohabitate and consummate the marriage, but then chose not to do so

One spouse hides a sexually transmitted disease

One spouse is under the legal age to marry

A spouse only agrees to marry under threat of harm or some coercion or duress

A spouse is discovered to have been impotent but concealed this fact

Why Would Someone Want an Annulment?

To get a divorce, you must either meet the statutory grounds for petitioning a court to dissolve the marriage. Otherwise, there is a waiting period, during which the parties must live apart. This period of separation can be costly and present unique challenges. Likewise, in a divorce, the court has the right to divide assets and debts between the parties, as well as order alimony. In an annulment, many of these things are not considered because in the eyes of the law, the marriage was never valid from the beginning.

Is Annulment Easier?

Annulment still requires a court to decide the matter. It is definitely not automatic. Therefore, there will be costs and effort involved. Still, it is often less difficult, requires less waiting, and can be less expensive to get an annulment. Of course, very few couples will be eligible, as the grounds for an annulment are quite limited.

Get Help From Birmingham Divorce and Annulment Lawyers

The experienced family law attorneys of Five Points Law Group are available to answer your questions about getting a Birmingham marriage annulment or divorce. No matter what challenges you face, you can count on us to provide skilled and compassionate advice to help you all the way. Call us or visit us online to get help today.

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Is My Recovery from a Discrimination Case Subject to Division in My Divorce?

Every year, thousands of Americans file and succeed in claims against their employers for discrimination, including pregnancy discrimination, age and gender discrimination, racial discrimination, sexual harassment, and more. Many Americans get divorced each year, as well.  When workers recover compensation, they may worry about the effect their financial recovery could have on their pending or soon-to-be-filed divorce case. To better understand how Alabama courts look at this situation, consider the following.

Types of Financial Court Orders

First, it is important to understand what a family court judge can and cannot do in Alabama. Courts have broad discretion to make financial determinations about:

Division of property (includes real estate, tangible property, and money)

Child Support

Alimony

Assets and Debt

Each of the above is a different type of consideration. Under Alabama law, the court may divide your “marital estate.”  This is the corpus or entire group of things the court is permitted to divide. Some things fall outside the marital estate, meaning they are not generally subject to division.

Alabama law provides that unless you and your spouse agree (or there is some other federal or state law applicable to the matter), your marital estate includes the following:

Income from employment

Retirement accounts

Interest

Pensions

Profit sharing accounts

Military thrift savings plans

Assets and property acquired during the marriage

Assets and property acquired before the marriage (if mixed with the marital estate)

What Exactly is a Lawsuit Recovery?

In the vast majority of cases, courts will consider money recovered through a civil action as part of your marital estate, subject to division.

Given the fact that most things acquired during your marriage will be considered marital assets, subject to division, the real question is: How does the court classify your monetary award?  It all depends on the unique facts.

For instance, if you filed a lawsuit or complaint for discrimination for events that took place before you were married, then you may be able to exclude the recovery. After all, a good portion of your recovery is because of money you would have rightfully earned if not for the discrimination, and that money would have been earned prior to marriage.

On the other hand, even if the discrimination case is based on events and employment during your marriage, it might still be partially excluded in limited circumstances.

What About Child Support and Alimony?

Recovery of money due to you from a civil action is almost always going to be considered when determining child support. Of course, you and your attorney should make clear to the court that those funds are not recurring. They are a one-time award that will not likely have future payments. The same is true of alimony. It would be patently unfair to base future alimony payments on the value of a one-time award. That said, it needs to be disclosed to the court well in advance, as it will likely be the subject of negotiations.

Getting Help With Your Alabama Divorce

If you are facing a challenging Alabama divorce, call Five Points Law Group today to get real help and real answers. Our firm can help you prepare for your new life after divorce by offering careful and informed guidance. Do not risk your financial freedom; call today.

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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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New Law Limits Alimony in Alabama

Earlier last year, the Alabama legislature changed the rules for alimony. Before the changes, Alabama family court judges would routinely review petitions for alimony and award something called “periodic alimony.” Periodic alimony is designed as an ongoing and continual support for a spouse. Many have criticized this type of alimony, calling it ‘forever alimony’ or ‘permanent welfare’ for the recipient. Permanent or periodic alimony creates an everlasting connection between two people who have worked very hard to separate their connection through marriage.

The underlying problem for Alabama divorce lawyers has always been the uncertainty of what to expect when helping a client with a divorce. It can be challenging to anticipate what a judge will do when it comes to alimony awards. The new law gives more certainty.

Alabama HB 257

On April 13, 2017, the Governor signed a new bill into law, creating some big changes to how Alabama courts will decide alimony. Under the new law, periodic alimony is still possible but, unlike in the past, there are specific limitations on when it may be awarded. Just take a look at three of the ways that the law has changed Alabama alimony.

Interim Alimony

Under the new law, either party may request interim alimony, meaning support during separation or pendency of the divorce action. To get this sort of temporary support, the requesting person must show a need, the person who would pay the support must be capable of doing so, and it must be shown that the marriage is valid. Interim support ends with the final divorce decree.

Periodic Alimony is Only for Limited Circumstances

Unlike before, now periodic alimony is only to be awarded in limited circumstances. For instance, the new law states that rehabilitative maintenance should be limited to just five years.  If a person can show good cause for deviating from this rule, then a court may award support up to the same length of time as the marriage. So, a person who was married for 10 years would be limited to no more than 10 years of alimony, even if he or she could prove that periodic alimony is warranted.

This basically means that in most cases, a person will be limited to just five years of support after the marriage unless they can show a significant need to deviate from the rule. Even in those circumstances, the length of the marriage creates a maximum cap on how long periodic alimony can be awarded.

20-Year Exception for Periodic Alimony

Despite the fact that periodic alimony cannot be awarded for longer than the length of the marriage, the new law still carves out an exception for those married longer than 20 years. In those situations, a person may still be awarded ongoing and permanent alimony. Nevertheless, the new law definitely creates a strong barrier to such continuing and endless support orders.

Policy Behind the New Law

Alabama now joins a growing number of states that are attempting to eliminate permanent alimony. While there are certainly circumstances in which it may be appropriate, in most situations it is best to sever a relationship and create some form of certainty for both parties. On one side, the recipient needs to have a definite time period to rebuild his or her life. For the individual paying alimony, there needs to be a definite term after which he or she can expect to stop paying. The new law, while imperfect, does appear to create a degree of certainty that will help divorcing couples and their attorneys better plan for the future.

Getting Real Help with Your Divorce in Alabama

If you are facing a divorce and have questions about alimony, child support, property distribution, or any other issues that could seriously affect your future, call (205) 263-0743 or visit 5 Points Law Group online to set up a confidential meeting with an attorney today.

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Three Common Sense Reasons You Should Consider a Trust

When people hear the term “trust fund,” they usually think of the super-wealthy, but trusts are not just for those with incredibly high-asset estates. Many middle-class to upper middle-class families would benefit from a trust. Anyone who is contemplating their estate plan in the near future should at least consider some of the ways that a trust might help your family. With this in mind, here are just three simple common sense reasons why you should consider creating a trust for your estate plan.

Reason #1: Tax Benefits

Alabama does not have an estate or inheritance tax, meaning that you and your heirs are not taxed by the state on the value of an estate. Likewise, the federal estate tax has been doubled as of 2018. Therefore, unless you have an estate valued at more than $11.2 million per person or $22.4 million per married couple, you should not face an estate tax. Although this eliminates some of the tax benefits of creating certain kinds of trusts, one should keep in mind that the new tax law has a sunset provision. These increased thresholds are only good until 2025. So, the limits could quite possible revert back to their prior limits of approximately $5.5 million per person and $11 million per couple. A trust can be established to protect assets, if this is a concern.

Reason #2: Life Insurance Trusts

Some states make you name individuals as beneficiaries for life insurance. Fortunately, Alabama allows you to also name a trust as a beneficiary. By doing this, you can protect future life insurance proceeds. For a young middle-class worker with a $1 million term life insurance policy, consider the benefits. If you are the sole earner for the family and you die, leaving a large amount of insurance money to your spouse and children, you have little control over how the money is used. If your spouse were to remarry and later die, all of the money intended to take care of children might go to the new spouse or that person’s children. When you die, you lose control over how money is used. A trust can help protect against that.

Reason #3: More Options

Simply put, Alabama trusts have more options than wills. Although they do require a little more planning and work to prepare, a trust gives you many options that a basic will cannot offer. For instance:

Spendthrift provisions. Protect against wasteful heirs or those with drug or criminal issues.

Incentives for heirs. Create financial incentives for heirs to be successful.

Privacy. Keep your family’s affairs out of public court records.

Probate avoidance. Avoid costly court administration.

Much more

Get Help Planning Your Estate

In Birmingham and the surrounding areas, the attorneys of Five Points Law Group want to help you protect your estate from unnecessary taxes and ensure that you understand all of your options. Trusts are not just for the super wealthy anymore. Anyone who wants privacy and wishes to avoid probate should consider a trust. Likewise, if you want more control over your assets and wish to protect your legacy, then there is probably a trust that is right for you. Call or visit us online to schedule an appointment to review your options today.

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Alabama Opens Door for More Retirement Distributions in Divorces

Until recently, Alabama courts were unable to force parties to divide retirement benefits in a divorce unless the parties had been married for at least 10 years. However, under a new Alabama law, courts will now be allowed to use discretion in awarding the division of retirement accounts in all divorces.

Why Limit to 10-Year Marriages?

There is good reason for the old restriction. Under the old theory, a person who is working to earn retirement benefits, such as pensions and 401(k) plans, is doing all the work to earn the money. Since forcing a withdrawal can trigger steep penalties and unintended taxes that could eliminate much of the benefit and value of such plans, the old law allowed the parties to postpone actual payment until the person began receiving the retirement checks. So, if a husband had a 401(k), the court can award up to 50% of that retirement account to his ex-spouse. But he would not be required to start distributing his ex’s share until he actually retired and began drawing on the account.

The problem, of course, is that this manner of property division keeps a divorced couple potentially connected for decades, even until death. This does not favor finality or swift resolution and separation of marital bonds. Although the old law did allow the parties to agree upon a lump sum, this essentially forced the difficult compromise of losing money to penalties and taxes in exchange for finality. By limiting these types of divisions to longer marriages, courts generally would offset the difference by requiring larger awards from other sources, thereby protecting the benefits of retirement accounts.

How Does the New Law Change Things?

Under HB 208, Alabama lawmakers decided it made more sense to allow judges the discretion to award retirement divisions in all marriages. This does not mean judges will be required to divide retirement accounts in short marriages. It simply means that it is open to debate in divorce cases. This is long overdue, because income has changed significantly since the original law was enacted decades ago.

Intuit suggests that about 34% of Americans currently are employed by the ‘gig economy,’ meaning they are freelancing or working at jobs that are temporary and usually carry no retirement or benefits, according to CNN Money. Furthermore, with income equality steadily rising, and women making more than at any time in the past, it makes sense to start looking at retirement distributions differently and with a more modern view that allows for a case-by-case analysis. Divorce lawyers have been negotiating retirement distributions for years, as part of settlements; this law just gives judges the ability to do the same.

Hiring a Birmingham Divorce Lawyer

Family courts are among those with the greatest number of pro se (self-represented) individuals. Unfortunately, this often results in a lot of long-term problems, such as endless disputes, unresolved tax and financial complications, and repeated, unnecessary court appearances. The Birmingham family law attorneys of 5 Points Law Group can help you efficiently resolve your divorce without as many surprises. Laws change frequently, so what works today may not work tomorrow. Call (205) 263-0743 or visit us online today to get timely advice to your divorce questions.

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Divorce Courts Now Deal With Disputes Over High School Athletics

There are plenty of things to disagree about in a divorce case. Who gets the kids on major holidays? Where are we meeting to make the swap this weekend? In recent years, courts have been mediating a new type of dispute between divorcing spouses – should the children play high school sports?  Just as is the case with determining the custody of a minor child, Alabama courts will generally look to what they deem is in the best interests of the child. Of course, this is often subject to much debate.

Birmingham divorce attorneys often advise clients on Alabama law, but it is a moving target when it comes to certain high school athletic programs. In particular, recent studies on head injuries associated with high school and college football have led some to rethink the wisdom of letting children play.

Recent Disputes Over High School Football in Family Courts

One father in Pittsburgh is fighting to keep his son from being able to continue playing high school football. That father, according to the New York Times, believes that the risks are simply too great and therefore the teen should not be allowed to continue. On the other hand, the man’s ex-wife strongly supports their son continuing to play, despite the fact that the young man has had multiple concussions. It is a power struggle, in which both parents definitely have valid and understandable arguments.

As The Times explains, the mother feels like her son has a lot to gain from athletics. Meanwhile, the father feels that his son is jeopardizing long-term potential and well-being by continuing to risk his health. So, how can a court resolve this dispute?

Family Court Involvement in High School Sports

It is important for anyone going through this type of dispute to understand that no matter how much a teenager may express his or her wishes, ultimately the courts will presume that both parents are legally permitted to make these decisions on behalf of their minor children. So long as both parents can come to an agreement on these matters, a court is probably not going to be involved. Courts generally get involved when the parents cannot agree.

Risks Associated With High School Football

The links between high school football and head injuries have only begun to be explored through research, but one study suggests that high school football players are nearly twice as likely to suffer a concussion as their college counterparts. The study, according to Frontline, also suggests a potential link between repeated head injuries and a number of conditions. For instance, retired NFL players tend to have a far higher average rate of conditions, such as clinical depression, suicidal ideation, Alzheimer’s disease, and traumatic encephalopathy. Frontline is careful to point out that there has been no clear or definitive link proven to date, but the research certainly does reveal a burgeoning crisis, especially among younger athletes – namely high school football players.

What to do if You And Your Ex can Not Agree About High School Sports for Your Child?

In almost all cases, you are better off if you can reach an agreement about what is best for your children. The last thing you want to do is give teenagers a reason to drive an emotional wedge between you and your ex. Instead, you should work closely with your attorney to reach an agreement. Ultimately, you should discuss your concerns with an experienced Birmingham family law attorney. Five Points Law Group can help with even the most difficult family law disputes. Call (205) 263-0743 to speak with an attorney about your case today.

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