Do I Need a Will?

I'm thirty-two, in decent shape, and I eat well - most of the time. I'm not planning on dying any time soon, and, at Southern Justice, we prefer not to dwell on depressing topics. But, I recognize, as do almost all of us, that my days are numbered. Despite the melancholy nature of the subject, planning for the future is vital. All of us need to do it. Clients and friends often ask about wills for their parents or grandparents and are surprised when I inquire about their own will. The reaction usually goes like this - "I'm only [twenty-something]. I need a will?!"

The answer is "It depends." It depends on what you have, what you own, and what you want to do with it. If you don't own anything, then a will should not be a priority for you. But, if you own a home, a car, have children, large amounts of savings, then it's a good idea - if not a moral imperative - to see an estate planning attorney and craft an individualized will. However, even if you depart this world will-less, state intestacy laws will distribute your property and estate according to a hierarchical order of family and relatives (but note - rarely does intestacy result in the type of distribution most of us want).

Having qualified the need for a will, there are two documents EVERYONE should have: an Advance Directive and a Durable Power of Attorney. An Advance Directive (aka, Living Will) allows you to dictate the health care you will receive should you become terminally ill, terminally injured, or unconscious and be unable to to speak or communicate (e.g., a coma). Remember Terry Schiavo and the fight between her husband and her parents? Thankfully we can avoid such a situation. Most states allow you, via the Living Will, to give explicit instructions and/or appoint someone to make those decisions for your once you become incapacitated. I, for one, don't want to be kept on life-support and a feeding tube for five, ten, twenty years. An Advance Directive allows me to free my family and loved ones from the burden of having to make the difficult decision of whether to "pull the plug" - and from having to fight in court for the right to do so. Every adult (nineteen or older in Alabama), regardless of health, should have one.

A Durable Power of Attorney gives another person or persons the power to act on your behalf. The power given can be limited or broad and general. You can dictate that the power of attorney does not arise until a specified event occurs (e.g., you become incapacitated). There are a ton of good reasons to do this: convenience, greater personal control, avoiding pricey guardianships, the list goes on. In the context of estate planning, a Durable Power of Attorney is usually general and empowers the Agent to do anything you would normally be able to do for yourself - sell or buy property, manage bank accounts, file and pay taxes, make health care decisions, and so on. It is an invaluable tool because of the time and money it saves. I have one because, as an attorney, I understand how difficult it would be for my family, if something were to happen to me, to gain control of and administer my property and assets. Time is of the essence in such situations; I want a quick and easy process.

Conclusion - Wills? Sometimes. Advance Directive? NOW. Durable Power of Attorney? ASAP. And, luckily, an Advance Directive and Power of Attorney are generally quick and inexpensive - so, no excuses. Any questions or comments, feel free to post or contact us. My best.

Forming an LLC, LLP, or Other Business Entity: What You Need to Know

New and current business owners alike often start with only a few dollars and a vision. Rarely do they think about how structuring their business as a legal entity can affect their own personal liability, income and taxation, management structure, disassociation and dissolution, and more. Though this is understandable, it isn't wise. Establishing your business as an LLC, LLP, PC, or S-Corporation can be extremely advantageous in both the short and long term.

Here are the two primary advantages of the commonly used business entities in Alabama:

(1) Flow-Through Taxation - In contrast to "C-Corporations" which are subject to "double taxation," many business entities allow "flow-through" taxation in which profits and losses flow directly through to the owners. Thus, income is taxed only once - when the individual owners receive it.

(2) Limited Personal Liability - Sole proprietors are liable for their business's obligations. In contrast, the owners or investors of an LLC, LLP, PC, or S-Corporation are generally not personally liable for the obligations of the entity. Instead, only the entity itself is liable for the entity's obligations. As a result, the owners and investors risk only their capital investment in the entity. However, owners and partners are still personally liable for their own wrongful acts.

And, here are brief descriptions of the commonly used business entities in Alabama:

LLC (Limited Liability Company) - Flow-through taxation; limited personal liability; power to design management structure as the owner desires; power to allow or restrict transfer of ownership; only one owner needed to form LLC.

LLP (Limited Liability Partnership) - Like an LLC, an LLP features flow-through taxation, limited personal liability, the power to design management structure, and the power to define transferability rights. Of course, to form a partnership, at least two persons must be present.

PC (Professional Corporation) - Professionals may not form a general corporation for the purpose of practicing their profession. Instead, Alabama law allows certain professionals - architects, attorneys, doctors, engineers, so on - to form a PC and thereby enjoy the advantages of a Corporation. However, several restrictions apply.

S-Corporation - Corporate structure; flow-through taxation; limited personal liability. But note the following requirements and limitations: stock limited to one hundred persons; shareholders must be individuals; only once class of stock is permitted.

Of course, this is only a basic introduction to business entities in Alabama. For more information, feel free to contact me, a new business attorney. My best.

The Police Searched My Car! Can They Do That?!

Clients, friends, family, waitresses at the City Cafe - people ask me, as a criminal lawyer, this all the time. And, it's a good question. The police usually have a basic understanding of what they can and can't legally do, but the average citizen typically has no clue when a peace officer is over-stepping the protections and limitations of the Constitution. Consider this a crash course courtesy Southern Justice.

The most common scenario is as follows:

You get pulled over for violating a traffic law - speeding, improper lane change, driving on a sidewalk, so on. You prepare to offer tears, excuses, whatever it takes to get out of a ticket. The officer asks for your license, registration, and/or proof of insurance. Then, she inquires: "Mr. Watson, do you mind if I look around inside your car?"

Know this: absolutely nothing prevents the officer from asking if he may search your vehicle. But - and here's the kicker - you may say no. Refuse. "I do mind if you search." "No. You may not look around." Probably best to soften it up a bit. Be polite. But, you would be amazed at the number of drug charges and DUI indictments that arise because the defendant consented to a search of his vehicle.

Now, here's the second most misunderstood fact concerning a vehicle search - the officer does not need a warrant to search the vehicle. Why? According to our US Supreme Court, vehicles are quick and mobile, and you and I simply don't expect what we do and carry in them to be that private (Carroll and Acevedo). So, no warrant needed; all the officer needs is "probable cause." To the best of my understanding, "probable cause" exists whenever the officer wants it to. Seriously, it exists if a reasonable person could believe that there is a "fair probability" of criminal activity based on the totality of the circumstances (Gates). In other words, if the sheriff smells marijuana, sees a pipe or syringe on the seat, or hears the high school senior in the backseat yelling "Hide the beer!," he likely has "probable cause" to search the vehicle.

So, you're informed! Next time you make a mistake while behind the wheel and see blue lights in your rearview, you'll be ready. And, if not, give me a call. My best.

Welcome. Call of the Blog.

Law is amorphous. Ephemeral. Ambiguous. Despite volumes of dusty books filled with statutes and my incessant craving for objectivity and finality, I am forced to admit this ever-clear and ubiquitous truth. Yet this is why law captivates me. The search for the answer; the idealistic neutrality; the unrelenting quest for justice. This is the law of James Madison and John Locke. A theoretical and even existential understanding of law as a creation of community, a social tool, designed and applied to ensure order, fairness, equity, justice.

The province of this blog will be the law as amorphous entity but practical necessity. This sphere of thought will engage controversial legal issues, divisive judicial decisions, and real-world law. The tone will drift back-and-forth between abstract, theoretical legaleze and a reality-show-esque quality. I hope you'll join. And converse.

Southern Justice seems to fit the persona of my firm - I'm Southern, and I strive daily for justice. And, I'm passionate about both. Nonetheless, rarely will I "tip my hand" and venture into the arena of social commentary. This is, after all, an off-shoot of my law practice. But, I welcome and encourage your controversial and opinionated thoughts. My best.