Questions Answered by Jack T. Carney

Q: In the state of Alabama if a person dies intestate and owns a home that is paid for, has one living son and one deceased

1 Answer | Asked in Estate Planning for Alabama on
Answered on Apr 3, 2019
Jack T. Carney's answer
If a person dies intestate, that is without a Last Will and Testament, then the assets in the person's sole name pass to the "heirs at law" of that person. Assuming there is no spouse, the heirs at law are the children. If there is a deceased child, the children of that deceased child inherit the share their parent would have received had they been living. In your hypothetical and assuming there are no other family members, the home would pass 1/2 to the living son and 1/2 to the...

Q: I have been living with a man for almost 2 years. We are not married. We just bought a house but I am not on the deed or

1 Answer | Asked in Estate Planning for Alabama on
Answered on Mar 18, 2019
Jack T. Carney's answer
Your interest in the home may be at risk if he predeceases you. Further, Alabama law recently abolished common law marriage, so you would not have the protection of a spouse even if you hold yourself out as husband and wife. It would be best for you to protect your interest in the home, especially if you continue to make mortgage payments. If you do not take any action, the home would pass to his heirs (assuming he does not have a Will) and then you would need to spend money to sue them to...

Q: In Alabama, if a widow with no children inherited all of her late husband’s property and she dies without a will, who

1 Answer | Asked in Probate for Alabama on
Answered on Feb 7, 2019
Jack T. Carney's answer
Alabama law provides for the disposition of an individual's property if that individual dies without a Will. It is called "intestate succession." There is a specific statute that directs the disposition of property when one dies without a Will and a spouse. I pasted a copy of it below. Basically, it would pass to the decedent's next closest blood relatives per Alabama law.

The statute is as follows:

Section 43-8-42

Share of heirs other than surviving spouse....

Q: A car dealership sold my friends father with dementia who is not of a sound mind a $20,000 truck for $46,000

1 Answer | Asked in Elder Law for Alabama on
Answered on Jan 21, 2019
Jack T. Carney's answer
You can certainly consult with an attorney about various civil remedies, however, there are various new "elder abuse" statutes on the books in Alabama and some may apply to this situation. It is a crime to take advantage of an elderly, incapacitated individual. Your friend may want to file a report with her local police department or call the District Attorney for her county.

Q: ? my sister abuses my mother I watched her slap my mother four times yesterday on her birthday she 72 then I got involve

1 Answer | Asked in Elder Law for Alabama on
Answered on Jan 14, 2019
Jack T. Carney's answer
I am not sure if you have a specific question, but when there are incidents of physical, emotional or financial abuse of seniors (or any adult for that matter), there are resources for assistance. The first is law enforcement and if you witness physical abuse, you can call the police and file a report. The second is the Department of Human Resources for the State of Alabama- Adult Protective Services Division. For more information on this division see...

Q: I am the executor of my mother's will. I am in the process of having it probated (waiting on 1 waiver)

1 Answer | Asked in Estate Planning for Alabama on
Answered on Nov 26, 2018
Jack T. Carney's answer
The answer to your question depends on the particular facts of your situation. The issue will be whether those accounts became assets of the estate or assets of your sister at your mother's death. As Executor you will have the power and maybe even the obligation to research that issue and determine if those accounts are more properly titled in the estate. As your attorney probably told you, you do not need her waiver to become Executor (the process is just more cumbersome without it)....

Q: dad died. Had will with children equal beneficiaries. Recently married. No mention her in will. How is property divided?

2 Answers | Asked in Estate Planning for Alabama on
Answered on Oct 30, 2018
Jack T. Carney's answer
As mentioned below, the specific facts of the situation are so important in determining the various rights and responsibilities of the parties. For example, it may be possible the wife could claim to be an omitted spouse (see statute below), which is where the 1/2 comes from (if she is deemed an omitted spouse, she would receive the same share as if her husband died without a Will, which would be 1/2 of the estate). As you can see in the statute, there are even exceptions to that rule. Good...

Q: Can my parents transfer ownership of their home to me remain in the home and still qualify for Medicaid in 5 years

1 Answer | Asked in Elder Law for Alabama on
Answered on Sep 24, 2018
Jack T. Carney's answer
Your question is a common one, but unfortunately it is not simple. First, it would be worth the time, effort and expense to consult with a legal or financial advisor about this decision and how it specifically affects your parents. It could have unintended consequences and ramifications extending even beyond Medicaid and long-term care concerns. There are various factors to consider in making decisions about long-term care planning, including: the specific health of the client, the family...

Q: My husband has a house in his name only that he purchased before were married.

1 Answer | Asked in Real Estate Law and Estate Planning for Alabama on
Answered on Sep 3, 2018
Jack T. Carney's answer
You would be entitled to inherit the house if your husband designated you as the beneficiary in his valid Last Will and Testament (or added you to the deed). If he died without a Will, then Alabama law directs that one-half of the assets in his name pass to his spouse and one-half pass to his children. In family situations such as yours careful and thoughtful estate planning is so important. It can truly help prevent a disaster down the line.

Q: My husband and his late deceased wife were on the deed to house, we are attempting to sell, why can’t we?

1 Answer | Asked in Real Estate Law, Probate and Landlord - Tenant for Alabama on
Answered on Aug 28, 2018
Jack T. Carney's answer
This issue arises a lot and is usually caught by a title company when someone tries to sell a home. I cannot speak to your specific situation without seeing the deeds, but it sounds like what you are hearing is correct (even though I admit it seems terribly unfair).

When your husband added his late wife to the deed, he gave her an ownership interest in the property. It sounds like there was no "survivorship" language (meaning at her death her interest would pass to your husband...

Q: Can the witnesses of the will be girlfriend and mother

1 Answer | Asked in Estate Planning and Probate for Alabama on
Answered on Aug 18, 2018
Jack T. Carney's answer
In Alabama a witness to a Will may be a relative or beneficiary under the Will. The applicable law is found at Ala. Code section 43-8-134, which states:

(a) Any person generally competent to be a witness may act as a witness to a will.

(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.

Q: my mother died in the state of Alabama there is no will and I live in another state what do I do

1 Answer | Asked in Probate for Alabama on
Answered on Aug 8, 2018
Jack T. Carney's answer
Oftentimes the first step in determining what to do next after a loved one passes away is to look at any assets that may be in that person's name. If you are unable to access any assets, then you would need to speak with an attorney about a probate administration or a probate alternative. The purpose of a probate is to transfer assets from the name of the decedent to the appropriate heirs. A good first step is to make a list of all assets in your mother's name and determine how each is...

Q: What are the range of legal fees to have an Alabama "Survivorship Deed and Will processed legally?

1 Answer | Asked in Estate Planning and Real Estate Law for Alabama on
Answered on Aug 7, 2018
Jack T. Carney's answer
An attorney cannot really provide a fee range until learning a lot more about the situation. Most attorneys would bill hourly for their work, which is a pretty fair method for all parties. It can be difficult to obtain pro bono assistance for estate matters (as there are assets), but if your income is low and the assets are not liquid, you may qualify for a legal assistance program. In the Birmingham area we have Volunteer Lawyers Birmingham (https://vlpbirmingham.org). You may have a...

Q: Dose properly in a father's name go to his children?

1 Answer | Asked in Probate for Alabama on
Answered on Aug 5, 2018
Jack T. Carney's answer
If assets are in an individual’s sole name and that individual leaves a valid Last Will and Testament, then the assets pass pursuant to that Last Will and Testament. The key here is “valid.” The Will must be offered for probate and proved to be the Last Will. The children (as the heirs at law) would have the right to challenge the validity of the Will if there is any basis to make that claim.

In general some reasons to challenge a Will include: (1) the decedent didn’t have the...

Q: My Aunt passed away 3 days before signing her will to leave everything to me her niece. Next of kin is her brother.

1 Answer | Asked in Estate Planning and Probate for Alabama on
Answered on Aug 2, 2018
Jack T. Carney's answer
I am not quite sure I understand the exact specifics of your situation, but if you have a valid Last Will and Testament that names you as the beneficiary of an estate, then it really does not matter what any one says about it, you would be the beneficiary. However, the Will must be "proved" to be the valid Last Will and Testament of the deceased and that proving process is what we call "probate." It sounds like you really need to speak to an attorney to see if you need to take any additional...

Q: If you remarry in Alabama who do you leave your house to? Your new spouse or your kids from a previous marriage?

1 Answer | Asked in Estate Planning for Alabama on
Answered on Jul 24, 2018
Jack T. Carney's answer
The basic answer is that a person may leave their home to the beneficiary of their choice, be it a new spouse or children from a previous marriage. However, when a person remarries and does not have a prenuptial agreement, the surviving spouse will have certain rights in the estate of the deceased. It is important to have an awareness of these default rights when planning an estate. For example:

1. A surviving spouse can remain in the home during the course of the administration...

Q: mother passed: house w/ mortgage, land, CD's a insurance policies no beneficiary. no will, do I petition probate?

1 Answer | Asked in Estate Planning and Probate for Alabama on
Answered on Jul 18, 2018
Jack T. Carney's answer
I cannot speak to your specific situation without reviewing the deed, account information, etc. In general when a person dies and their name is the only name on an asset (such as the deed or a CD) and further where there is no beneficiary named, then a probate is required in order to transfer title to those assets. If there was a co-owner or a payable on death beneficiary, then there would be no assets in the deceased's name and probate would not be needed. The basic function of probate is...

Q: My mother is in Alabama and in poor health, she has a will leaving all property to me

2 Answers | Asked in Estate Planning for Alabama on
Answered on Jul 7, 2018
Jack T. Carney's answer
There are so many new “elder abuse” laws on the books these days. If there is elder abuse, DHR or the local authorities could be helpful and you may want to contact them to discuss your options.

Q: Do I need an attorney to file for my decease mother property I am the 6th child who paid the property in full

1 Answer | Asked in Probate for Alabama on
Answered on Jun 22, 2018
Jack T. Carney's answer
I would recommend that you speak with an attorney to protect your interest in the property. The specific facts will be important in your case (and many of them happened so long ago). Someone will need to review them closely and only then will be able to advise you as to how to protect your interest.

Another option may be to contact a title company and ask for information on the current title to the home. A title company can run a search and provide a report as to who has “good...

Q: If my spouse removes me as the beneficiary of his life insurance policy, will I be notified? I'm in the state of Alabama

1 Answer | Asked in Estate Planning for Alabama on
Answered on Jun 13, 2018
Jack T. Carney's answer
There are a lot of facts that would be important to have before someone can give you a specific answer (such as: are you going through a divorce, is there any legal requirement that your spouse name you as a beneficiary, etc). Generally speaking however, I cannot think of any mechanism whereby a beneficiary would receive notice of a change to a policy. The owner of the policy has complete control over the beneficiaries. If you were by chance the owner, then you may receive confirmation of the...

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