Common Pitfalls in Estate Planning - Part II

      Yesterday's post was the first in a series of common pitfalls that you should avoid when dealing with your estate planning process.  Today's pitfall is one that most of us know about, but many neglect anyways. 

      Not routinely checking/adjusting your beneficiaries of life insurance policies, retirement plans, etc. 
      Things change.  Divorce happens.  Loved ones pass away.  Children are born.  Because of this, it is important to periodically review the named beneficiaries on your assets, especially after a life changing situation (good or bad).  When dealing with estate planning, some of your assets will be arranged so that they avoid probate, or in other words take care of themselves, without your Will deciding where the asset goes.  An example we are all aware of is life insurance.  If you have a named beneficiary on the policy, such as your spouse, the proceeds will pass to that person directly upon your death.  Many retirement plans, pensions, bank accounts, real property, and other assets are the same way.  Often, a spouse has a statutory right to certain assets, even if you name another person as beneficiary.  If you are not clear about the beneficiary on any of your accounts or assets, call the financial institution holding the asset and find out. 

State law may kick in to automatically disqualify a divorced spouse from being a beneficiary, but it may not.  Even if it does, that just means the asset now has no beneficiary at all and a whole other set of issues crop up.  The best advice is to periodically review your beneficiaries to make sure they align with your current wishes. 

Big Two Days for the Hornsbys

          I want to take a little time out from the regular posts to congratulate a couple of special people. 

          Last night was a big night for my cousin Todd Hornsby and our whole family.  In my family, the husbands love Braves baseball, and I guess the wives put up with it more than anything else.  But we are all proud of Todd and all that he has accomplished while playing collegiate baseball at Jacksonville State.  I could fill a novel with the awards and records he has set over the last several years, but last night was perhaps one of the most significant.  With last night's save against Auburn, Todd Hornsby now holds the record for the most career saves of any pitcher in the history of the Ohio Valley Conference.  In a collegiate career that is winding down in a matter of weeks (Todd graduates soon with a double major, in fields I can't even pronounce), Todd now becomes the best closer in conference history, and he did it in only three years.  Whether he spends the coming years in professional baseball or in a job related to his major, Todd will make us all proud and will continue to be the all-time career leader in saves. 

          Not to be outdone, my sister Abby Hornsby (an eighth grader in Gulf Shores) won first place at her school's talent show today.  There were about 15 contestants in the competition so that's an unbelievable accomplishment to me.  Actually, just getting up in front of the school is unthinkable for me.  I think she may be the first person I have known to ever win at a talent contest at all.  She sang Marry Me by Train, and while I didn't get to hear her live today, I can't wait to see the video.  She is learning how to play the guitar now, so they really better look out for her at the high school talent show next year. 

Common Pitfalls in Estate Planning

          As I wrote in my previous post, Legal Documents That Every (Responsible) Adult Should Have, the importance of having a Will can not be overstated.  To take that a step further, the importance of having a solid estate plan overall can not be overstated.  Over the next few days, I will discuss several common pitfalls that occur in estate planning.  Consider these as you plan and execute your estate plan.

      Using an online company to produce your Will and other estate documents.  I’m sure companies such as Legalzoom and others mean well.  (Actually, I don’t even know if that is true).  However, using a site such as that can have tragic consequences later on.  In an effort to save money, many folks are turning to these sites in order to draft their Wills, Power of Attorney, Living Wills, and other legal documents.  The sites often entice you with low prices, while promising professional results.  Like anything else in life, if something sounds too good to be true, it probably is.  These companies will not ensure that the document is properly witnessed and notarized.  It becomes your responsibility to make sure that the attestation and notarizing are properly done and documented.  Without this being done perfectly within the strict requirements of state law, your Will may be useless after your death.

Further, the most critical part of the Will preparation process is meeting with your attorney to discuss your unique situation.  An online questionnaire or drop-down menu from a website is not able to identify the nuances of your financial and familial situation.  When I meet with a client regarding a Will we often discover that while their preconceived estate plan may technically be legal, following through with that particular plan will result in undesired consequences.  Without talking with a human being you may never realize that Legalzoom is leaving you with an inadequate estate plan and a mess for those you leave behind.

Finally, a Will is cheap even if you use an attorney.  In fact, it is probably the cheapest legal task you will ever hire an attorney to do, and maybe the most important.  It also may be your first encounter with an attorney and can be an important step in building a relationship that every person needs. Just like a family doctor, a family attorney is sure to come in handy at some point.  That doesn’t mean you need to have an attorney on retainer – but you do need to know an attorney that you trust when you find yourself in a troublesome situation.  Legalzoom probably won’t answer the phone when you find yourself being sued or your son has been arrested.  Your family attorney will. 

Check back tomorrow for more common pitfalls to avoid during your estate planning.

Atheists Rally For...What?

          You could call it the Show Rally About Nothing, I guess.  Several weeks ago, more than 20,000 atheists gathered on the National Mall in Washington, D.C.  David Silverman, President of American Atheists, said “We are here to deliver a message to America: We are here and we will never be silent again.”  While I certainly appreciate these folks’ constitutional right to peaceably gather and say what they want…I can’t help feeling puzzled.  What, exactly, are they saying?  I’ve heard of rallies in support of things, in protest of things, rallies to influence politicians, and rallies for redress of infringed upon rights.  In football-crazy Alabama, we have rallied over coaches hired and coaches fired.  But this particular rally of atheists is a contradiction of itself.  A person generally believes in a coach’s ability, or believes a vote should go a certain way, or believes abortion is murder, or believes that George Zimmerman should be arrested.  Their beliefs may be right or wrong, but they believe, therefore they turn out, and they rally.  Now we have a group of atheists, a large group at that, who claims to believe in…nothing, at least not spiritually, yet they rally so strongly and emotionally.  Why waste your limited energy rallying against something that you don’t even believe exists? 

          As human beings, I think we often wage the most violent wars against those things that we know to be true.  So perhaps these rallying atheists are battling that voice inside each of them that tells them there really is something bigger out there.  Or as Shakespeare once penned, “Thou doth protest too much, methinks.” 

What Not To Do During a Traffic Stop - Part 2

Here is Part 2 of yesterday's post:

DON’T consent to the officer’s request to search your automobile.  The law allows the officer to require that you step out of your vehicle and to pat you down in order to ensure his own safety.    The law does not allow the officer to search your car without having probable cause of some evidence of a crime therein.  That is, unless you consent to such a search, in which case the officer has free reign.  Upon reading this, your first thought is likely something along the lines of “I’ve got nothing to hide, so what do I care if the police search my car?”   The problem is, while you may not have anything to hide, your passenger may.  A family member who left something in your car may.  Or the person who borrowed your car last week may.  The reality is, none of us can ever be 100% sure of what is in our car at any given time. If something illegal is in your car, it doesn’t matter if it’s yours or not – you can be charged with a number of crimes dealing with possession of drugs, contraband, alcohol, guns, or the all-encompassing “paraphernalia.”  No good can come from consenting to a search.  Lots of trouble can.  The correct response to a request to search you car is something along the lines of “I’d rather you not.  I really do need to be on my way.”    

DON’T argue with the officer.  Getting an attitude or arguing with the allegations he is making won’t change his mind and may result in additional charges.  Say “yes sir” and “no ma’am” and be polite.  If you want to ask for leniency, then do it, but don’t be aggressive, and be polite if he refuses.  If you think you have a case like my client in yesterday’s post, that’s what the courtroom is for.  In the meantime, take your ticket and be on your way. 

DON’T forget that 99% of police officers are solid professionals, just trying to do their jobs and make it home safely to their families. 

What Not To Do During a Traffic Stop – Part 1

There is something intimidating about seeing a police officer all decked out with his gun, handcuffs, pepper spray, radio, and whatever else goes in those leather pouches clipped to his belt.  It’s that feeling of intimidation that makes you feel like you’re doing something wrong, even when you’re not.  For the most part, this is probably a healthy level of respect for a profession that is both underappreciated and underpaid.  However, this same intimidation can get you into a lot of trouble if not checked against reality…and the law.  In that spirit, I have written a 2 part post of several things you should NOT do during a routine traffic stop.  (These points are advice on how to act during a traffic stop, not how to get out of a ticket) 

DON’T pull over in a dangerous location.  That is, don’t pull over in a place where you, the officer, or other drivers will be placed at risk.  Our instinct tells us to pull over immediately or risk facing criminal charges for evading an officer.  However, Alabama law specifically provides a defense to such a charge as long as “the person stop[s] his or her vehicle within a reasonable time and at a reasonable location based on the facts and circumstances of the stop.” Ala. Code §13A-10-53.  I have successfully defended a client in the courtroom against this exact charge after he was signaled to by an officer however continued driving three blocks, pulling into his own driveway.  He was arrested in the driveway and charged with 5 different offenses, including DUI, attempting to evade an officer, reckless endangerment, reckless driving, and running a stop sign (the initial reason for the traffic stop).  We took the case to trial.  He was acquitted (not guilty) of all charges except for running the stop sign, which he freely admitted to.  His behavior during the stop were in line with the points of this post, and he came out on top.  In a nutshell, don’t pull over on a bridge or when the shoulder is narrow.  Don’t pull over in an unlit area at night.  If you are close to a well-lit parking lot or police station, turn on your hazard lights and proceed there.  The key is that your reaction to the officer’s signal be reasonable. 

DON’T unbuckle your seatbelt.  My first instinct after turning the car off is to unbuckle my seatbelt.  Lots of people are the same way, but the best action is to leave your seatbelt buckled throughout the traffic stop, unless the officer asks you to step out of the car.  The officer may have pulled you over because of speeding or a blown tail light.  If your seatbelt is off when he approaches your car, it’s your word against his on whether you were using it or not.

DON’T get out of the car, unless told to do so by the officer.  We see this on TV all the time.  Getting out of the car can make the officer nervous and turn a routine traffic stop into something more.  Stay seated behind the wheel and wait for the officer to approach your vehicle.

Part Two will be posted soon.

12 Negotiating Tips For People Who Hate Negotiating

Everybody wishes they were better negotiators at times.  For some usable tips, click the link below.  My personal favorites are #2 and #6.

http://www.cbsnews.com/8301-505143_162-47745080/12-negotiation-tips-for-people-who-hate-negotiating/