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Questions Answered by Jack T. Carney
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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1 Answer | Asked in Elder Law for Alabama on
Q: Can my parents transfer ownership of their home to me remain in the home and still qualify for Medicaid in 5 years

We are in Alabama

Jack T. Carney
Jack T. Carney answered on Sep 24, 2018

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... Read more »

1 Answer | Asked in Real Estate Law and Estate Planning for Alabama on
Q: My husband has a house in his name only that he purchased before were married.

His adult daughter is his beneficiary & inherits the house if he were to pass away. Since this is my home but my name is not on the mortgage or the deed, am I entitled to inherit the home before she were to inherit it?

Jack T. Carney
Jack T. Carney answered on Sep 3, 2018

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... Read more »

1 Answer | Asked in Real Estate Law, Probate and Landlord - Tenant for Alabama on
Q: My husband and his late deceased wife were on the deed to house, we are attempting to sell, why can’t we?

They are telling us that because they were married and jointly on the deed that her children have to sign the deed stating the house goes back to my husband who is the original owner of the home before she ever came along, he added her to the deed later. Why are we unable to sell the house without... Read more »

Jack T. Carney
Jack T. Carney answered on Aug 28, 2018

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...
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1 Answer | Asked in Estate Planning and Probate for Alabama on
Q: Can the witnesses of the will be girlfriend and mother
Jack T. Carney
Jack T. Carney answered on Aug 18, 2018

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...
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1 Answer | Asked in Probate for Alabama on
Q: my mother died in the state of Alabama there is no will and I live in another state what do I do

there is me the oldest and my sister

Jack T. Carney
Jack T. Carney answered on Aug 8, 2018

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.... Read more »

1 Answer | Asked in Estate Planning and Real Estate Law for Alabama on
Q: What are the range of legal fees to have an Alabama "Survivorship Deed and Will processed legally?

Are there any pro bono or financial assistance in Alabama to have these documents processed legally?

Jack T. Carney
Jack T. Carney answered on Aug 7, 2018

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... Read more »

1 Answer | Asked in Probate for Alabama on
Q: Dose properly in a father's name go to his children?

He left a will giving everything to a care taker

The property is in his name only

Jack T. Carney
Jack T. Carney answered on Aug 5, 2018

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... Read more »

1 Answer | Asked in Estate Planning and Probate for Alabama on
Q: My Aunt passed away 3 days before signing her will to leave everything to me her niece. Next of kin is her brother.

When we went to court my dad, next of kin said under oath he knew my Aunt was leaving everything to me, the niece. Then he went and hired an attorney to fight the estate and take it all since he is next of kin. Is there any case file examples showing where this is can be over turned since he... Read more »

Jack T. Carney
Jack T. Carney answered on Aug 2, 2018

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... Read more »

1 Answer | Asked in Estate Planning for Alabama on
Q: If you remarry in Alabama who do you leave your house to? Your new spouse or your kids from a previous marriage?
Jack T. Carney
Jack T. Carney answered on Jul 24, 2018

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... Read more »

1 Answer | Asked in Estate Planning and Probate for Alabama on
Q: mother passed: house w/ mortgage, land, CD's a insurance policies no beneficiary. no will, do I petition probate?

I have 3 siblings. Do we need to petition probate? We just want names added to deeds joint tenancy, and everything in equal shares: life insurance payouts, cd's, property ownership etc.

Jack T. Carney
Jack T. Carney answered on Jul 18, 2018

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... Read more »

2 Answers | Asked in Estate Planning for Alabama on
Q: My mother is in Alabama and in poor health, she has a will leaving all property to me

Her new husband is not in the will or on the deed. They’ve been married 18 years. Who gets possession of her house after her death? She has also been a victim of elder abuse by her husband for at least the last year.

Jack T. Carney
Jack T. Carney answered on Jul 7, 2018

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.

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1 Answer | Asked in Probate for Alabama on
Q: Do I need an attorney to file for my decease mother property I am the 6th child who paid the property in full

My mother passed away in 1979.My eldest brother who was my caregiver and his family moved into the house after my mother passed years later they moved out because of the 5th child.I learned the house was in foreclosure when I started to move in months later after I finished school and turned 18.As... Read more »

Jack T. Carney
Jack T. Carney answered on Jun 22, 2018

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... Read more »

1 Answer | Asked in Estate Planning for Alabama on
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
Jack T. Carney
Jack T. Carney answered on Jun 13, 2018

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... Read more »

1 Answer | Asked in Probate for Alabama on
Q: AL deceased person. Sole owner of house. House in probate now. House is up for sale. What steps to take to sell?

We know money from sale will go into probate instead of to us. Just want to make sure we take the right steps to do it right from the start..if the house sells before the 6 mth probate period is over.

Jack T. Carney
Jack T. Carney answered on Jun 2, 2018

If the probate estate is open I would assume you have an attorney and I would encourage you to take direction regarding the sale from him or her. The answers to questions in this area of law are often very fact specific (so much depends on the exact facts of your particular case).... Read more »

1 Answer | Asked in Elder Law for Alabama on
Q: If me and my siblings use some of mom's money and then she's goes to nursing home will we have to pay money back?

I'm power of attorney had to move money into my name due to grandson stealing.

Jack T. Carney
Jack T. Carney answered on Jun 2, 2018

If your mother needs to qualify for Medicaid (assuming she does not have the resources to pay for nursing home care), then you would need to repay the funds if she needs to qualify for Medicaid. It’s all related to the Medicaid “transfer penalty.”

The penalty basically works as...
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1 Answer | Asked in Banking and Probate for Alabama on
Q: What is the waiting period for a deceased persons bank funds to be released to the heir in AL with affidavit of heirship

Filed affidavit of heirship notarized with death certificate with the bank and they say they're holding for 60 days... Doesn't seem correct... What is the current waiting period in Alabama?

Jack T. Carney
Jack T. Carney answered on May 25, 2018

It is actually 60 days. The affidavit for small accounts is governed by the banking code. The relevant section is below:

“Section 5-5A-39

Disposition of small deposits of deceased person - Time for payment; when payment prohibited.

No payment shall be made pursuant to...
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1 Answer | Asked in Probate for Alabama on
Q: If when a male person dies and leaves no wife, children, property, or assets, must there be a probate by Alabama law?

My brother died in that condition, and no probate was ever executed.

He died in 1997 is it necessary now and what code of law covers this situation?

Jack T. Carney
Jack T. Carney answered on May 10, 2018

There is no law requiring a probate and as a practical matter I always tell people that you should open a probate estate only if there is a reason to do so. I cannot speak to any reason in your case, as it is dependent on the facts. However, two examples of why one would open an estate would be:... Read more »

1 Answer | Asked in Estate Planning for Alabama on
Q: I’m executive of moms will. She lives in Missouri and I live in Alabama. I need to know what’s involved?

I have to siblings and mom is in debt.

Jack T. Carney
Jack T. Carney answered on May 8, 2018

I cannot tell by your question whether your mother is still alive, but will assume that she is as she "lives in Missouri." The good news is that nothing is required of you until your mother's death. A Last Will and Testament has no legal significance until death. Even at that... Read more »

1 Answer | Asked in Elder Law for Alabama on
Q: Is it neglect if they if a elderly person falls eight times in a month and they don't take her to the doctor
Jack T. Carney
Jack T. Carney answered on May 4, 2018

Cases of neglect are incredibly fact specific and there is no bright-line test as to what constitutes neglect. Speaking generally, if someone is concerned that an elderly adult is being neglected, there are three basic options:

1. Contact local law enforcement. There are several new...
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