Helping you prepare and protect your family’s legacy

Estate planning helps you protect your assets for future generations, structuring your will and/or trusts to avoid unnecessary taxation and to ensure that your heirs will receive an inheritance according to your wishes.The Rodgers Law Firm is ready to help you create an estate plan or fight for your rights when disputes arise. We help our clients handle many issues such as:
  • Will Drafting
  • Will Revocation
  • Will Contests
  • Enforcing Beneficiary Rights
  • Removal of Personal Administrators
    • Help with Probate Administration
    • Powers of Attorney
    • Advanced Healthcare Directives & Living Wills

Will Drafting

Drafting a Will is one of the most basic things a person can do to ensure that his or her estate passes according to one’s wishes.
Typically, a Will designates beneficiaries of an individual’s assets, guardians for one’s minor children, and an executor who will be responsible to administer the Will.
In California, if a person dies without a Will, that person’s estate will pass to his or her next of kin – spouse, children, parents, siblings, etc. – according to a statutory scheme. Often, this statutory disposition is inconsistent with a person’s wishes, so it is important to consider drafting a Will or Living Trust to ensure one’s wishes are carried out.
While it is true that Wills can be handwritten, the legal requirements for a handwritten Will to be valid are fairly stringent. In nearly every case an attorney-drafted Will is a better option. Consulting with a qualified estate planning lawyer, and having him or her assist in the drafting of one’s Will, will help avoid possible unintended consequences that so often arise from self-drafted documents.

Will Revocation

As long as an individual has legal capacity, he or she may revoke his or her own Will. Sometimes, Wills are inadvertently revoked. For example, a presumption of revocation arises when a Will was known to be in the testator’s possession, but neither it, nor a copy of it can be located in the testator’s possession at death. This is one of the reasons I recommend clients keep their Wills and other legal documents in a secure location, such as a safe or safety deposit box.
Another type of implied revocation occurs when an individual gets divorced. If he or she had a Will naming his or her spouse, the Will is deemed revoked as to the divorced spouse. In some cases, particularly where the divorce is amicable, an individual may continue to want to make a gift to an ex-spouse, or may want the ex-spouse to have custody of minor children. In these cases, it is important that a new Will or Codicil be drafted that clearly states these wishes.

Will Contests

What Is A Will Contest?
This is a question that isn’t always easy to answer. Generally speaking, a Will Contest in Alabama is an action to determine that a Will is unenforceable under Alabama law.
What Makes A Will Unenforcable?
There are a number of a reasons a Will may be unenforceable. First, if the Will was not properly executed, it may not be enforceable. Alabama Probate Code, sets for the requirements for a validly executed Will.
More commonly, Will contests are brought on the basis that the testator was unduly influenced into signing a Will, the Will was procured by fraud, or the testator lacked “testamentary capacity” to execute the Will.
If a claimant succeeds in proving that the testator lacked the capacity to execute a Will, or was fraudulently induced into executing the Will, the Will is likely to be determined to be unenforceable.
Will A No Contest Clause Eliminate My Inheritance If I Contest The Will?
Most Will contests are “direct contests”, meaning they are brought on the grounds that the Will is invalid due to: 1) forgery, 2) lack of proper execution, 3) menace, duress, fraud or undue influence, 4) revocation of the will, or 5) disqualification of a beneficiary.In these cases, it is very important that the party seeking to contest the Will carefully analyze their evidence and objectively evaluate whether they have “probable cause” to contest the Will.
If a Court determines that “probable cause” for the contest did not exist, and the Will contains a “no contest provision”, the contesting party may be completely excluded from any distribution under the Will.
Enforcing Beneficiary Rights
A “beneficiary” is an individual who, by the terms of the governing Will or Trust has a current or future right to receive cash or other assets from a Trust or Estate.
Unfortunately, Personal Representatives and trustees are not always reliable.
Sometimes, through laziness and neglect, trustees and executors fail to perform their duties to beneficiaries. Most commonly, trustees and executors fail to properly and timely account to beneficiaries for the transactions they have spent trust/estate funds on.
In cases where a reasonable request for an accounting or report has been made and denied, legal action may be needed to compel an accounting.
Seeking to compel an accounting should not be considered a “Trust Contest” or a “Will Contest”. To the contrary, compelling an accounting is actually an effort to ensure that a Trust or Will is faithfully administered according to the intent of the person who created the document and whose assets are being administered.
In many instances, all that is needed to get a trustee or executor “back on track” is a little prodding.
However, cases involved egregious misappropriation of assets by a trustee or executor seem to be on the rise. In such cases, swift and decisive action is needed to preserve the remaining estate assets and to recover assets which have already been misappropriated.
If you are a beneficiary of a trust or estate and believe that the trustee or executor is not properly handling the administration, call us today to schedule a consultation with one of our attorneys.

Removal Of Administrators

Individuals who are serving as personal representatives have a number of responsibilities which are set forth in the Alabama Probate Code and in the governing trust instrument itself. Often, family members with no previous trust management experience are selected to serve as trustees. While this is common, it is not always wise, and this decision should be carefully thought through before being made.
Inexperienced personal representatives commonly make mistakes and, while not all mistakes will subject a trustee to removal, some mistakes will.
Alabama Probate Code provides several scenarios in which a trustee may be removed, including removal for committing a breach of fiduciary duty.  This is a broad category and encompasses mismanagement of trust property, misallocation of trust assets, failure to make timely distributions, and more. Some other grounds for removal are: 1) a trustee’s insolvency, 2) hostility or lack of cooperation among cotrustees, 3) a trustee’s failure or declination to act, and 4) payment of excessive compensation by the trust for the trustee’s services.
In addition to removal pursuant to Alabama statutes, a representative may also be removed according to the specific terms of the will itself. A careful review of the trust instrument is recommended in order to determine whether a non-judicial procedure to remove a trustee is available, prior to filing an action for trustee removal in state court.
Representatives who are subject to removal due to breaches of their fiduciary duties are likely also subject to trustee surcharge as a remedy the damage caused to the trust by the errant trustee.

Contact one of the knowledgeable and trustworthy attorneys at The Rodgers Law Firm for an Estate Planning consultation today.