>> Tiffany Bittner: Hello, welcome to LawCall. In the caller segment we’ll take your phone calls and questions about grandpa or your father if you will in the law. It’s father’s day weekend. We are celebrating on LawCall. We’ll ask how simple is it to put together a will. Can you write it on a piece of paper and sign it? What is a trust? Can we help with that? Give you us a call. 1-855-law-1955. We’ll explain what an accident diary is and how it can help you if you have been involved in a wreck. Lawyers take a lot of heat. What would the world be without them? We’ll talk about what benefits there are with attorneys. Tonight’s e-mail question is from Gretchen. I was jogging by a construction site, tripped on busted sidewalk and had to go to the e. r. it’s a city sidewalk. I can’t find a lawyer to take my case. Why? That’s from Gretchen.
>> Kirby Farris: Tiffany, there is a lot going on. That sounds like a simple scenario. Let’s talk about, Gretchen, why it may be difficult to find a lawyer on that particular case. Let’s first focus on the construction company. If you have a situation where somebody trips and falls, one of the things the law looks to is whether the defect that caused you to fall is open and obvious. If it’s an open and obvious problem the construction company in your case or grocery store or mall is not liable for the open and obvious defect you trip on. There are a lot of problems with lawsuits against a municipality. You have to put them on notice within six months. You have lost a claim against the city. Also, municipal caps. There is only so much you can recover from the city in a lawsuit. There are a lot of reasons the lawyer may not take your case. They should take time to explain them to you.
>> Tiffany Bittner: Go to deliveringjustice.com for more information. Click on the LawCall link. In tonight’s side bar, Ken Riley explains what an accident diary is and how it can help you if the you are involved in a vehicle wreck.
—- Side Bar —-
>> Ken Riley: If I find a consent form for an operation, do I lose my right to sue if something goes wrong? It doesn’t give the writer a license to commit malpractice. It does not relieve the healthcare provider from his or her duty of meeting the standard of care with such procedure. Here’s your side bar advice. Before you sign anything, ask for the details. Ask your doctor to give you a description of the surgery and risks involved and ramifications of not getting the treatment. If you can prove your physician misrepresented or failed to inform you of the benefits before the surgery, you may have a claim. I’m personal injury attorney Ken Riley of Farris Riley and Pitt in Birmingham.
>> Tiffany Bittner: Happy Father’s Day! We have had great weather. In honor of our fathers, we are saying grandpa in the law. We are not all grandpas. Tonight we are talking about estate planning, wills, and powers of attorney; do you need the attorney for this or not? It covers a lot of ground tonight. We have the number flashing on the screen. We want you to call and ask questions. We have Kirby Farris with the law firm of Farris, Riley and Pitt. He will answer questions tonight. Happy Father’s Day to you.
>> Kirby Farris: Thank you.
>> Tiffany Bittner: Did you have a great day?
>> Kirby Farris: Heard from all of the kids.
>> Tiffany Bittner: Felt the love. Tell everybody who you brought to help answer questions.
>> Kirby Farris: Let me give you an example of what went on with our firm and John’s firm. We had a tragic case where a young man was killed. We handled that suit for his family. He had four brothers. After that suit was resolved, we needed someone to help with the estate planning, someone to help set up funds for these kids. We called John, one of our good friends. We work with him on a lot of stuff. He does an outstanding job and he’s here.
>> Tiffany Bittner: Glad to have you here. If you would, tell our viewer about your practice and what they need to know.
>> John Holliman: We practice at Bradford. We do estate planning and elder care law. We help people do wills and trusts. We help people think about long-term healthcare planning and disability planning.
>> Tiffany Bittner: Do you get a lot of resistance? A lot of people say, “We’ll take care of it at some point”. But it’s not always obvious, right?
>> John Holliman: Three quarters of the country, they don’t have a will. Another 15% of those, they have it updated and it’s not working right. 95% of the country doesn’t have the proper estate plan. When should someone think about that?
>> Tiffany Bittner: When should you step back and say, “It’s time to consult with somebody and do planning”?
>> John Holliman: Every adult needs to have a will, a power of attorney and their healthcare directives. Most people think about it in their late 40s and 50s. If the they haven’t done it when they have a minor child, then they think about it in their 50s. We do estate planning for all ages.
>> Tiffany Bittner: Let’s jump into phone calls. We have Lynn calling first. Hey, Lynn.
>> Caller: Hi, good evening. How are you all doing?
>> Tiffany Bittner: We are doing great. I hope you are.
>> Caller: I’m doing fine. My question is, I want to know, my father has been dead about four years. I want to know the house is still in his name. What happens if we don’t probate — get the house out of his name?
>> Kirby Farris: That’s a good question.
>> John Holliman: That’s a common question, Lynn. If the home is still in your dad’s name, and you may have siblings. Your dad may have other children or heirs; you won’t be able to get clear title to that house unless you address your father’s interest. You have heard of the term going through the probate process. Not saying that’s necessary, but you need legal advice to get clear title to the house, since it was an asset of yours and not your siblings’. You go to sell it or refinance it, someone will say, there’s a problem.
>> Tiffany Bittner: Hope that helps you out. Let’s go to Steve in Birmingham. You are live at LawCall. What’s going on?
>> Caller: My question is, if a person dies, and all they have left are two siblings, what do they need to do? There was no will — what do they need to do to handle that estate?
>> John Holliman: No will is calling dying intestate. We have to go through a procedure called administration. If there are no kids or siblings, the Alabama law says these are our relatives. That’s in the statute. Those people would inherit. Again, we have to do something to activate that probate in the court system because doing nothing doesn’t tell anybody who the actual heirs are, who owns interest in the real estate, the personal effects of the home, the bank accounts. We have to do something to go through the probate process. We do consultations everyday, but you can’t do it alone. The probate courts will tell you, you have to see a lawyer. The clerks can’t give out legal advice. You have to have an attorney to help you with that.
>> Tiffany Bittner: We’ll take a break and have more calls or questions after the break. Give us a call. We’ll be right back.
>> Tiffany Bittner: Well, lawyers get bad press a lot of the time. Bob Prince explains why that shouldn’t always be the case.
—- Legal Brief —-
>> Bob Prince: I like a good lawyer joke as much as the next guy but let me tell you why having a lawyer can be a very good thing. Lawyers help you have your say. We are affective communicators. When you have been wronged we are your spokesperson in the courthouse. Only in our court system without wealth come before the court and be addressed equally and address the other citizens, the wealthiest or biggest. Without lawyers, it’s unlikely your workplace would be safe as it is. Discrimination would be rampant and if you were injured, you would do the best you could. The courthouse is the only place you are on equal footing with the president or a giant corporation. There are a lot of noble professions out there. Maybe not surprisingly to you, I think being a lawyer is one of them. That’s your legal brief. Back to you.
>> Tiffany Bittner: We are discussing wills and estate planning tonight. If you have a question related to the topic, give us a call. We have Dazine on the line next. Hey, there.
>> Caller: Hi. My question is, if you are put in a nursing home, do you lose your house to the state of Alabama?
>> John Holliman: Okay, Dazine, you are referring to long-term healthcare planning. The state of Alabama and federal government contribute to the budget. If you want the government to pay for your nursing home, that’s the Medicaid agency. They have limits on what you can have. They have an income limit and an asset limit. If you are a single person, your house may be an asset they’ll count. You have to consider selling it. You don’t necessarily have to sell it before you are approved from Medicaid. Medicaid doesn’t count your house but they are counting down assets you have to qualify for Medicaid.
>> Tiffany Bittner: That’s one of the things you help with, isn’t it? You have folks with that type of situation and you try to prepare.
>> John Holliman: Pre-planning. This is pre-planning on the long-term care side. They are intertwined. Your example, special needs on the intro, an ounce of prevention is worth a pound of cure.
>> Tiffany Bittner: We have Gary on the line next. Hey, Gary.
>> Caller: My question is a two-part question. Power of attorney. Do I have to designate a power of attorney to be present because they are out of state? Secondly, when I have the power of attorney, can it only go into effect when I become ill?
>> John Holliman: That’s a great question. Power of attorney, since it’s your own document, your attorney can live in another state. In today’s world with e-mail and ups, a power of attorney can handle your affairs from another state. Then the second part of your question, you can make a power of attorney only effective on the event of your disability. It’s sprung into action. That’s something we would counsel you on if you want a power of attorney only effective then. If you want one effective immediately, we can do that too.
>> Kirby Farris: Powers of attorneys are very powerful. If you give me a blank check, what can I take from you? I can take what’s in your bank account. I can take your house. I’m violating a fiduciary duty I owe to you, which is a big deal. It’s also a crime in Alabama, protecting the fiduciary act. You don’t need to have someone with power over you without consideration.
>> Tiffany Bittner: Hi. Let’s hear from you. What’s going on?
>> Caller: I’m guardian and conservator over my mother. She has dementia. For personal reasons, we don’t want my brother to get anything. There is no will. There is some land. We want to split it when she passes between my sister and I. What do I need to do?
>> John Holliman: Okay. A guardian conservator is the power the court awarded you over her because of her disability. You’re acting to use her funds. If it’s equity and land on her for her care. When she passes away. She will have an estate. If she’s not able — like we mentioned earlier, if she’s not able to do a will, you may be administering her estate within the will. You would be named the administrator and you would distribute the land. You have an obligation to use the funds on her best interest during her lifetime.
>> Kirby Farris: You may have a difficult time excluding the brother from taking that the land remains upon her passing, if I understood the question.
>> John Holliman: Thank you for clarifying that for me. Once someone is incapacitated, she can’t make a will, so you would have a difficult time excluding your brother if he’s an heir of equal degree as you are. You would be administering the estate and he has the same rights to the property. Assuming it’s not used on her during her lifetime, to inherit. You can’t exclude someone at this point. Sitting here, we have limited facts, but sometimes when someone has a guardian conservative, they have the ability to do estate planning. The court doesn’t like to say someone is incapacitated. They default to giving as much autonomy to someone as possible.
>> Tiffany Bittner: Okay, Let’s take a break. We’ll come back with more questions. Stay with us.
>> Tiffany Bittner: Bob Prince is in Tuscaloosa. Call his office or PrinceLaw.net. Kirby Farris is here with Farris Riley and Pitt. Call 324-1212 or deliveringjustice.com. That’s his web address. Check them out on the web or call their office if you have a follow up question. Maybe there is a question you have you would like to answer if you have been watching from home. Brian is our next caller tonight. Hey, Brian.
>> Caller: Hey. Thanks for taking my call. My question is, me and my brother and my mom were left a house in a will. My question is, she has — my step grandma has not lived there in three or four years and she has a live estate in the house. At what point can we try to get the house back for abandonment?
>> John Holliman: Abandonment is a fairly difficult concept. Her life estate does that, lasts for a lifetime, so she doesn’t have to be in possession of the property for the estate still to be in interest of the house. I know she said she hasn’t been there for years. You have the family here that owns it. You have to deal with her interest in the property. Alabama law says a life tenant, in her case, your grandmother; she can even collect the rent on the property. We have to deal with her interest. If she could deed it to you all, we could approach her on your behalf — I have valued life estate interest before to get it on to the remainder — you are a remainder person. Not a fuzzy term, but you own the interest after she deals with it. She has a current interest in the property that has to be dealt with even if she’s not living there.
>> Kirby Farris: If someone has a life estate and they are allowing the property to go to waste at the expense of the people that would get it later on, is there anything they can do about that?
>> John Holliman: The legal term for it is “waste”, as you know. They are committing waste. That is devaluing the property as you described. The remainder persons have an action, a cause of action that they can’t start fixing things up. They can’t breach the peace or take possession whenever we feel like it. They have a right not to let the roof fall in or pipes burst. They would have to take action about that.
>> Tiffany Bittner: Really, they ought to see a lawyer if there is no one living in the house?
>> John Holliman: That’s right. Then if it’s falling into a state of disrepair, it’s affecting their interest.
>> Tiffany Bittner: Let’s talk to Pat in Fairfield.
>> Caller: Hello. I was wanting to find out, my mom is 91 years old, and I had a life estate deed made. Me and her had it done about six years ago. I wanted to find out if she has to have a will also?
>> John Holliman: That’s a great question. There are certain assets that are non-probate assets, beneficiary designated and life estates. If you again, we talked about the remainder interest in the life estate tonight. That’s what you all — like our last caller, but that does not go through probate. If you are the only remainder interest holder after your mom’s life estate interest, you will own that without probating the will.
>> Tiffany Bittner: Thank you for coming in. Great hearing your question. We have learned a lot tonight. Next week we discuss buying a franchise. It will be interesting to hear your phone calls and questions. Make sure you are part of the show. John and Kirby Farris, thank you, gentlemen. We appreciate it. Have a great rest of your Father’s Day and enjoy the week ahead.