What is a Pour Over Will and Why Have One?

As we age, we begin to think differently about our lives, our possessions, and our legacies. One of the greatest acts of love and compassion is to establish a careful and intentional estate plan, which clearly outlines your desires for after you have passed away. Doing so tells your children, your spouse, and everyone you care about that you loved them enough to protect them and make their time of grief less complicated. After all, it is difficult enough to deal with the passing of a loved one without having to also deal with a complex estate without a written plan.

For those with larger estates, the term “pour over will” often comes up, but you might not understand what this is and why you may need one. At Five Points Law Group, our experienced estate planning attorneys aim to make your final estate plan simple and straightforward, even for those with large or complex estates.

Estate Assets and Non-Estate Assets

 

First, it’s important to understand the difference between assets that are part of your estate and assets that are not. A will controls only those assets and liabilities that belong to your final estate. Despite common misconceptions, most of your assets are probably not even part of your estate. For instance, the following items generally do not pass to heirs and family members through your estate:

• Vehicles with joint titles
• Homes held in joint tenancy with right of survivorship
• Most joint bank accounts
• Anything held in trust
• Life insurance policies that name a beneficiary
• Investment accounts naming a beneficiary

Pour Over Wills and Their Uses

 

Think of a pour over will as a catch-all for people who choose to utilize a trust for their estate plan. Unlike a traditional will, a pour over will acts to “pour” all residual assets that a person has, whether known or unknown, into a trust. This way, if at some point a person’s trustee discovers assets that were never properly transferred into the trust, they can simply be passed back into the trust and distributed privately according to the terms of the trust, rather than through a court proceeding, such as probate.

Benefits of a Trust With Pour Over Will

Section 43-2-690 of the Alabama Code allows estates with less than $25,000 in total net assets to be administered through a simple document called a small estate affidavit. Therefore, those with more than this amount will likely need to use the courts to administer their estate through probate, unless they take reasonable steps to prevent this. A trust is a simple way to do this. Once you place assets into a trust, they are no longer technically your assets. Therefore, when you die, they do not “pass through” the probate estate. Instead, they are privately administered by your named trustee. Of course, there may be disputes that require court involvement. But in most cases, the trustee has broad powers to administer the estate. By also having a pour over will, you ensure that any items you may have forgotten can easily and efficiently be transferred to the trust, rather than passing to someone you did not intend to receive them.

For help building your own custom estate plan in Birmingham or the surrounding areas of Alabama, call Five Points Law Group today.

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Understanding the Role of the Guardian ad Litem

If you are like most people, you have probably never really given much thought to what goes on in a courtroom when a minor or disabled adult needs someone else to make decisions for them. These situations are quite rare for the majority of the population. However, when it happens to you and your family and you need to obtain court authority to make critical decisions on someone else’s behalf, it can be an overwhelming and daunting task.

Guardianship cases are among the most common types of cases in which people end up being unrepresented in court. This means that there are a lot of folks who end up in court, representing themselves, stumbling through one obstacle after another, all in an effort to do the right thing to protect someone else. Sadly, it can be costly and end up depleting good people of time and money. One of the most commonly misunderstood aspects of these cases is the appointment of a guardian ad litem. This person, almost always a trained and licensed attorney, will get involved early on in the process and begin making recommendations to the court, which may at times conflict with what you are trying to accomplish.

At Five Points Law Group, we can help. If you need to obtain guardianship or conservatorship over another person, we can help guide you through the process.

Who is the Guardian ad Litem?

 

In cases involving your children (minors), a guardian ad litem (GAL) is almost always appointed in order to be the eyes and ears of the court and to make recommendations regarding what is in the best interests of the child. Once an adult petitions for guardianship of a child, a judge will appoint a GAL to interview the petitioner, parents, the child, and anyone else involved. The goal is to ensure that everyone involved is acting in the interests of the child. If there are any concerns, the GAL’s report will detail those issues to the judge. In a case involving a disabled adult, the role is very much the same.

Can the GAL Give Legal Advice?

 

While GALs are not there to represent the parties, they can at times assist in guiding the process. However, you should use caution when dealing with a GAL. Remember that they owe you no ethical duty of confidentiality or any duties as an attorney. Everything you say to a GAL could easily be repeated in reports to the court or in open court discussions. The GAL is not your attorney, and they really do not take sides. They are simply there to advise the court and render opinions to protect the individual whose rights are affected.

So, Who Represents the Person Applying to be a Guardian?

 

You need your own attorney. An unrepresented petitioner seeking guardianship over a child or disabled adult is at a distinct disadvantage, especially if someone else files a cross-petition seeking the role. A skilled attorney can effectively draft the right documents and argue on your behalf at a hearing. If there are conflicts or if the GAL renders a negative report, your attorney can help you dispute their findings, as well.

For help with an Alabama guardianship or conservatorship, call Five Points Law Group Today.

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