Birmingham attorney Birch Bowdre says he often asks audiences he addresses how many of them have wills. “There will be maybe a third or half of the hands that go up,” said Bowdre, an attorney with Wallace, Jordan, Ratliff and Brandt, LLC, who specialized in estate planning. “Then I tell them that’s really a trick question.”
Bowdre then notes that all of them already have wills, whether they’re aware of it or not.
“Some of them have personal wills that they have prepared,” said Bowdre, a member of Dawson Memorial Baptist Church, Homewood. “The rest of them have a will that has been fixed for them by the state of Alabama, and the state of Alabama’s objectives may be very different than their objectives.
“Unless they’ve done their planning for a personal will, they’ve stuck with the Alabama plan,” he added.
Despite an individual’s wishes, Bowdre and other attorneys said not filing a will means the state decides where an individual’s assets will go following his or her death. In many cases that means loved ones and organizations they hoped to remember are forgotten or receive less than the deceased may have intended.
“If you don’t have a will, then when you die, the laws of the state will determine how your assets will be distributed,” said Phil Nichols, an attorney with Balch & Bingham LLP in Birmingham.
Nichols, a member of Dawson Memorial Baptist, said the Alabama Code includes “extensive rules” about how assets will be distributed if an individual wants to happen,” Nichols said.
Birmingham attorney Linwood Bragan added that the process of distributing assets without a will can also be slow.
“There are provisions in a state law, that if you don’t have a will, it says only so much will go to a wife, only so much can go to parents, only so much can go to children,” Bragan said, adding that the law isn’t mindful “of any of the emotional value or the remembrance that a person would be placing, normally, behind a gift.”
The attorneys noted distribution of funds without a will can be a long and costly process.
Bragan said the absence of a will means an administrator must be appointed, whose actions must be approved by a court order. “They have to inventory (assets and belongings) and submit it to the court.”
The administrator must then decide how assets will be distributed.
“Wills help,” Nichols said, “because what you can do is you can be very detailed in how you want your assets to be distributed.”
Nichols stressed the importance of couples with children having a will, regardless of age.
“Anybody with children, I think, they owe it to the children to have a will,” Nichols said. “They ought to want to make sure that their children end up with the right adoptive parents, the right guardians.
Bragan also warned against being hesitant in choosing who will do what’s in the best interest of surviving children. He said relatives aren’t necessarily the best people to handle the children’s finances.
“On the money aspect, you want somebody who’s got good sense,” Bragan said. “More than anything else, you want somebody who’s got integrity – they’d rather die than steal a dime of it. Their personal integrity is the highest.”
In some cases, Bragan said parents may want money to be handled by professionals or some other family member.
“If you’ve got a substantial estate, where you’re talking a few hundred thousand dollars, then you may want to go to an institution.”
Bragan said parents should “very strictly scrutinize” who they want to have care, custody and control of their children. He said those designated as guardians determine matters such as schooling, doctors, residency, etc., while conservators only handle money.
“Very often you can put them all in one,” Bragan said. “But you don’t have to. Sometimes it’s a smarter deal not to.”
Bragan said designating a guardian for children with disabilities is essential, since they may require care after reaching adulthood.
“Once you’re dead, you can’t control,” he said. “The maximum control you can get is to have that will as detailed as it can be.
“To not take care of it is to put burdens on your family,” Bragan added. “Frankly, I would consider it almost a sin, because it’s bad stewardship.”
Nichols said individuals should discuss how they want assets distributed prior to meeting with an attorney. Once a decision has been made on who will care for the children, he said parents should discuss the disposition with parties involved to assure they are agreeable with the arrangement.
“Anytime you can eliminate confusion, it’s better,” Nichols said.
Bowdre has seen the heartache that can arise when individuals die without a will.
“It has created substantial legal causes, it has created substantial problems with courts that they’ve had to deal with,” he said. “It has cost them a lot of money in attorney fees and taxes and it has directed money to places other than family and organizations that they would have wanted to benefit.”
Bowdre identifies three mistakes people make in planning wills:
Using an attorney unfamiliar with estate planning. “They think that anybody who has a law degree is going to be competent in the area of estate planning,” Bowdre said. “Unfortunately, that’s not the case.”
People are not forthcoming with the information they need to provide. Bowdre said attorneys may draw incomplete conclusions if clients do not provide them with all relevant information regarding their assets.
Not making adequate preparations prior to meeting with an attorney.
Famed Minnesota philanthropist Percy Ross is known for his dictum “He who lives while he gives … also knows where it goes.”
For Alabama Baptists, an organization begun almost 60 years ago offers them an opportunity to support Baptist organizations following their death, thus assuring they still know how their money is spent once they’re deceased.
Founded in 1940 by the Alabama Baptist State Convention, The Baptist Foundation of Alabama allows individuals to designate gifts for Baptist institutions and causes, with the foundation serving as executor of the funds.
“One of the purposes of the foundation is to encourage Alabama Baptists to support its institutions and Baptist college by leaving a part of their estate in perpetuity to be used for the Lord’s work for all time to come,” said Warren Trussell, executive director of the foundation.
During the almost 60 years the foundation has been in existence, he said “literally hundreds of individuals have done just that.”
“They’ve had a will prepared and in numerous cases, the foundation has met with those individuals and helped them develop and put down in writing what they desire to do (in supporting Baptist institutions),” Trussell said.
Stressing the foundation is non-profit, Trussell adds, “We do not go out knocking on doors.” He said the foundation makes people aware of its existence through Baptist publications and by speaking to different church groups.
Trussell said presentations discuss how preparing a will can benefit both families and Baptist institutions they wish to support.
“We don’t practice law, but we are able to sit down privately with individuals and discuss with them the information that’s needed for a will,” Trussell said, “so that when they go to an attorney, they have answers to the questions that he’s going to ask.”
Birmingham attorney Linwood Bragan said it’s crucial individuals prepare a will to assure groups like The Baptist Foundation of Alabama will be designated as a recipient of their assets.
“The main function a will has is that it will determine where your property goes, according to how you want it to be distributed at the time you pass away,” said Bragan, a member of Huffman Baptist Church (Birmingham Assoc.).
Aside from money not going to family members as desired, Bragan said distribution of assets in the absence of a will also means money will not go to a particular church, church organization or other group as an individual may have intended.
“It’s a completely impersonal process; it is dealing with percentages and quantities,” he said. “It’s totally devoid or divorced of the individual’s personality, and beyond that, it’s set up in a way that tends to be costly.”
“In most cases when people contact us, there is a charitable inclination on their part,” Trussell said. “They pretty much have already decided that they’re going to leave part of their estate to be used for the Lord’s work.”
Trussell said the surviving spouse in a marriage can direct that a certain amount of their assets be left to the Baptist Foundation. The assets are then invested, with income distributed to Baptist causes.
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