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Questions Answered by Jack T. Carney
1 Answer | Asked in Estate Planning for Alabama on
Q: Can a clause be written into a will that if one of the heirs contests the will they get nothing?
Jack T. Carney
Jack T. Carney answered on Aug 24, 2020

Yes. I usually tell clients that a "no contest" or "in terrorem" clause is enforceable in Alabama, however, courts will strictly construe these clauses, meaning that the court will almost look for a reason not to enforce the clause if possible. Nonetheless, these clauses can... Read more »

1 Answer | Asked in Estate Planning, Family Law, Civil Litigation and Probate for Alabama on
Q: What can I do when executor is running up expenses?

My aunt opened probate on my dad estate, he had no will in Alabama. Now she is running up expenses, such as she purchased a $4000+ headstone from the estate and had a $10K funeral. All was paid from my dad's bank acct. He wanted to a military burial. Probate was open without my brother or I... Read more »

Jack T. Carney
Jack T. Carney answered on Aug 14, 2020

I am sorry for your loss. You can always hire an attorney to file a petition to remove the Administrator and seek to recoup expenses. However, when an Administrator closes an estate he or she must get the consent of the heirs. If the heirs refuse to consent, the probate court will hold a final... Read more »

1 Answer | Asked in Estate Planning for Alabama on
Q: A grandfather died intestate and left an estate vested to his kids who did not probate it and also died intestate.

Does Alabama intestate code provides that the grandchildren will take equal of their grandfather's estate?

Jack T. Carney
Jack T. Carney answered on Aug 14, 2020

As with most legal questions, there is a need for some additional facts before someone could give you a firm answer (e.g., time of death, type of property). In general, if a grandparent died intestate and his children survived him by more than five days, their share of his estate became a part of... Read more »

1 Answer | Asked in Estate Planning and Probate for Alabama on
Q: Need a lawyer to open safety bank dep. Box for deceased mother not afford 2000 retainer. Can you make referral thank you

Thousand Dollars retainer. Is there a lawyer in mobile who can just get a court order to have box opened for a fee. Thank you

Jack T. Carney
Jack T. Carney answered on Jun 18, 2020

I am not sure if she would be able to help, but I would recommend Stephanie Booth. Her e-mail address is sbooth@gcelderlaw.com

Good luck!

1 Answer | Asked in Probate and Estate Planning for Alabama on
Q: When someone gives away an item years before his passing; is the item subject to the deceased's previous will?

My question is about three, irreplaceable heirloom items with no monetary value, but which my father personally entrusted to me because of their immense sentimental value. When he gave them to me (several years before he passed away); my father was emphatic about his determination for me to have... Read more »

Jack T. Carney
Jack T. Carney answered on Jun 4, 2020

I can provide some general information about the treatment of specific devises in a Will. You will of course need to speak with an attorney to discuss the specific application of the law to your situation (as some additional facts would be helpful in providing a final answer). First, you are... Read more »

1 Answer | Asked in Probate for Alabama on
Q: My mother and her husband were involved in a class action lawsuit over Chinese sheetrock. The lawsuit dated back 7 yrs+

my mother's husband died 7 years ago. This past month they finally settled and my mom received her settlement check. It's made out to her and her dead husband. So the bank won't let her deposit it. He wrote a will but it was never notarized. The bank told her to go to probate office... Read more »

Jack T. Carney
Jack T. Carney answered on May 6, 2020

In these situations his estate is entitled to the proceeds as well, therefore the bank needs a representative of his estate to sign off on the check. The general way to get a representative of an estate is to petition the local probate court to be named as the Executor (if there is a Will) or as... Read more »

2 Answers | Asked in Contracts and Estate Planning for Alabama on
Q: I am my brother's legal guardian. He relies on Medicare to pay his nursing home. He was omitted from Dad's will.

If he receives any money Medicare will take his benefits away. Dad died without taking brother's name off insurance as beneficiary. I can disclaim his insurance benefit, but what happens to his benefit if I do? How long is any disclaimer in effect? What can I do to prevent Medicare from... Read more »

Jack T. Carney
Jack T. Carney answered on Mar 16, 2020

If your brother is on Medicaid in Alabama the best solution may be a special needs trust. He could keep the assets and they would be available through a Trustee for his benefit. As the trust is a special needs trust, he would not lose government benefits. As with most legal cases, so much... Read more »

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1 Answer | Asked in Probate for Alabama on
Q: Executor resignation

My wife is named as an executor in her late mother's will. She has done nothing in an executor capacity since her mother's death (and no one else has either) and she wants to resign as executor. Is there a form you can prepare to do this and how much would it cost?

Jack T. Carney
Jack T. Carney answered on Feb 19, 2020

An attorney would need some more information and clarification before being able to provide you with a firm answer For example, it depends on whether the estate has been opened. If opened, then she would need to file a resignation with the court and a settlement for her time as executor (which... Read more »

1 Answer | Asked in Family Law and Elder Law for Alabama on
Q: In Alabama, what does the DR stand for in Case number DR2019-77
Jack T. Carney
Jack T. Carney answered on Jan 20, 2020

It stands for "Domestic Relations," indicating that the case is in the Domestic Relations (i.e., Divorce) section of the Circuit Court.

1 Answer | Asked in Elder Law, Estate Planning and Probate for Alabama on
Q: Both my parents passed away this year. In their will I am to inherited their home which has a $40,000.00 mortgage.

I moved out of my home to care for them in 2015. I continue to live in the house while the will is being probated. I want to know who pays the mortgage, insurance, home owners association fee, lawn care, termite bond, pest control, and utility bill during this time. I live in Alabama. Thank... Read more »

Jack T. Carney
Jack T. Carney answered on Dec 16, 2019

I am sorry for your losses. It is hard to give a specific answer that you can rely upon, as some additional information is necessary. However, in general the estate will be responsible for paying for those expenses. If you continue to live in the home, the estate (through the Executor) may... Read more »

2 Answers | Asked in Probate for Alabama on
Q: My mom died a long time ago and willed everything to me & my brother. We didn't probate her will but paid all bills.

We now need to sell some of the inherited land that is still in Mom's name. How do we go about probating the will after so very long?

Jack T. Carney
Jack T. Carney answered on Dec 16, 2019

I agree with Nina's answer. I want to also add that a Will must be probated within 5 years of the date of death. If it has been longer than 5 years, you can still transfer title to real property without a Will by using "heirship affidavits." A local real estate attorney (closing... Read more »

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1 Answer | Asked in Family Law, Health Care Law and Probate for Alabama on
Q: What form do I use to file a motion for Alabama Code Title 22. § 22-52-1.2?
Jack T. Carney
Jack T. Carney answered on Oct 28, 2019

You are asking about an involuntary commitment proceeding. I would recommend you call your local probate court and see if they have a form on hand. In my home county of Jefferson any individual can complete the appropriate form at the probate court office. Just to clarify you will want to call... Read more »

1 Answer | Asked in Estate Planning for Alabama on
Q: My widowed Mother passed away in Alabama and left 135 acres of land without a wiIl. It's still in her name.

It was understood from my Mother that it would be divided equally between us upon her death, but she did not put that in a will. There were 5 adult children when she died in 2009. My brother passed away in Dec. 2018. He leaves a wife and 3 adult children.

When the land is surveyed and... Read more »

Jack T. Carney
Jack T. Carney answered on May 16, 2019

When someone dies without a Will, assets in their name pass to their "heirs at law." The heirs at law are determined at the time of death. Further, real property (land) vests in the heirs after two years. In your hypothetical I would suggest that the property will pass in 5 shares.... Read more »

1 Answer | Asked in Estate Planning for Alabama on
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

son who had a daughter does the living son inherit the home?

Jack T. Carney
Jack T. Carney answered on Apr 3, 2019

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... Read more »

1 Answer | Asked in Estate Planning for Alabama on
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

Mortgage. What will happen if he dies? Do I have any rights? I help make the mortgage pmts.

Jack T. Carney
Jack T. Carney answered on Mar 18, 2019

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,... Read more »

1 Answer | Asked in Probate for Alabama on
Q: In Alabama, if a widow with no children inherited all of her late husband’s property and she dies without a will, who

inherits her property.

Jack T. Carney
Jack T. Carney answered on Feb 7, 2019

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... Read more »

1 Answer | Asked in Elder Law for Alabama on
Q: A car dealership sold my friends father with dementia who is not of a sound mind a $20,000 truck for $46,000

Her father turned in his BMW as a trade in as well. Her father is not of sound mind and the dealership will not allow them to return the truck and refuses to give their money back. They tacked on an extended warranty even though it came with a warranty because it was brand new.

Jack T. Carney
Jack T. Carney answered on Jan 21, 2019

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... Read more »

1 Answer | Asked in Elder Law for Alabama on
Q: ? my sister abuses my mother I watched her slap my mother four times yesterday on her birthday she 72 then I got involve
Jack T. Carney
Jack T. Carney answered on Jan 14, 2019

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... Read more »

1 Answer | Asked in Estate Planning for Alabama on
Q: I am the executor of my mother's will. I am in the process of having it probated (waiting on 1 waiver)

My sister (the waiver I'm waiting on) has closed my mother's bank accounts. Sister is on the accounts but the funds are my mothers and were to be distributed according to the will. What is my legal standing?

Jack T. Carney
Jack T. Carney answered on Nov 26, 2018

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... Read more »

2 Answers | Asked in Estate Planning for Alabama on
Q: dad died. Had will with children equal beneficiaries. Recently married. No mention her in will. How is property divided?

Children are adult children from previous marriage. Current wife was never mentioned in will. Can’t find a definitive answer. One place I read wife gets first $37,000 plus half. Other place says she gets 1/3 or equal share of children.

Jack T. Carney
Jack T. Carney answered on Oct 30, 2018

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... Read more »

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