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What is a Qualified Domestic Trust?

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You may be starting to prepare for what happens to your family after you are gone. There are many different ways to set up a trust for your family and it all may get overwhelming at times. You may have heard of Qualified Domestic Trust (QDOT) and Qualified Terminable Interest Property Trust (QTIP) and are unsure which is best for you and your family.

If you are married to a spouse who isn’t a U.S. citizen, you may be considering a Qualified Domestic Trust. A Qualified Domestic Trust, often referred to as QDOT, is similar to a QTIP because they both allow anyone who is a taxpayer and that survives their spouse to take a marital deduction on estate taxes. However, a significant difference is that a QDOT allows a spouse to get a marital deduction, even if you aren’t a U.S. Citizen. Deciding which one is right for you can be complex to sort through on your own if you are hesitant about what each trust entails.

What is a Qualified Domestic Trust (QDOT)?

As stated, a qualified domestic trust is a trust that allows your surviving spouse, even if they aren’t a U.S. citizen, to take a marital deduction on your estate taxes. This makes QDOT a special trust that allows these deductions if assets are included in it. This makes a QDOT an equalizer, allowing non-citizens’ spouses the same rights as a U.S. citizen spouse to a tax deduction. This saves the non-citizen spouse from paying a hefty tax on the assets that are in the QDOT.

Without a QDOT, your spouse wouldn’t be able to own the asset, and an estate tax will be applied to the partner’s unused exemption amount. A QDOT is a good option so that your property and assets are placed in a trust for safekeeping, and when you pass, your spouse will get the distributions paid out to them.

Why Use a QDOT?

As previously mentioned, if you are married to someone who is not a U.S. citizen, in most cases, they will not be able to utilize any of the marital estate tax deductions that you set aside from them when you pass. The main reason you should use a QDOT is so your spouse can get your assets transferred to them in a legal and safe manner.

However, it is vital that you know and comply with all the requirements and regulations of a QDOT trust. Otherwise, if you don’t, you will make the trust invalid upon your death.

How do Qualified Domestic Trusts Work?

Under Section 2056A, from the IRS, your surviving spouse is qualified to have 100% marital deduction for any estate taxes that are owed on the asset. Meaning that, the spouse will not have to pay taxes on assets with no limits. Marital tax is not allowable if the spouse is not a U.S. Citizen. Additionally, there will be an estate tax exemption amount that your non-citizen partner will not be able to claim. 

By creating a Qualified Domestic Trust, you are putting all your assets that will allow for the 100% marital deduction. While the spouse will not actually own any of the assets, they will still be able to benefit from the interest, financial accounts, and assets. To recap, once the assets are in the QDOT trust, the trust will own the assets instead of the surviving partner.

This allows for when your surviving spouse passes, then all the remaining assets in the trust will go to your children, friends, and charity. It will be important to note, then when this happens the assets will be transferred and there will be an estate tax that applies.

Limitations of a QDOT

It’s great that a QDOT allows your non-citizen spouse to be eligible for marital tax deductions from any assets that are inside the trust. However, it doesn’t exempt the trust from having to pay the taxes on the estate. A QDOT will only defer the tax until the death of your non-citizen spouse. 

Once your non-citizen spouse passes, the state will then be liable for Section 2056A taxes on any of your assets that are in the trust even if there is or isn’t any surviving trustee. The downside to this is that it could reduce the value of the assets in the QDOT.

Requirements for a QDOT

If a QDOT is right for you and your family, here are the requirements you will have to meet in order to get one:

  • The grantor must elect on the estate tax return to be able to treat the trust like a QDOT.
  • The QDOT must meet Treasury regulations in regards to the collection of any tax.
  • At least one trustee must be a U.S. citizen.
  • Except for income, no distributions can be made to the trust.

Let the Experts Help

Whether it’s a straightforward trust for an individual or family that owns a single home, or a complex, high-net worth, estate plan involving multi-faceted structuring, lifetime gifting, valuations, and irrevocable trust strategies, Brackin Law Firm will provide you with the estate planning and trust solutions you need to protect your family legacy.

Contact Brackin Law Firm today to assist with all of your estate planning needs. 

What You Need to Know About Living Wills

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If something happened to you today that made it impossible for you to make medical decisions for yourself, would there be anyone who knows exactly what your wishes would be? 

A living will, also known as an advance healthcare directive, does just that. It outlines your wishes so that your family knows what to do if something happens to you.

A living will is different from a last will and testament. A last will and testament is used after a person’s death and lays out how the deceased wants their assets and property distributed to their family and friends. On the other hand, a living will is a type of an advance directive that states how one wants their medical care handled if they are rendered unable to communicate those wishes in the future.

Having a living will in place makes things easier for your family and loved ones in case of an emergency. They won’t have to guess what you might want or feel guilty about decisions they make for you. Today, we will take a closer look at the things you should know about creating a living will, so that you can be better informed when the time comes to prepare yours.

Rules for Living Wills Vary by State

Depending on where you live, a living will may have a different name. Some states refer to it as a directive or—specifically— a healthcare directive. States may also have different procedures and different requirements for creating and executing living wills.

If you regularly spend extended time in multiple states, you will want to ensure that your living will is valid in those other state(s). Most of the time, living wills are honored in other states, regardless of the state they are created in, but to be completely sure, check the rules for each state in which you spend extended time.

A Living Will Is a Legal, Binding Document    

When you create a living will, it becomes a legal, binding document. You cannot verbally convey your wishes or simply write it down and call it a living will. Your living will has to cover what you want to happen if you become permanently incapacitated, terminally ill, or unable to convey your wishes by some other means.

When Your Living Will Goes Into Effect

Your living will does not go into effect if you are conscious and can make your own decisions. Also, you cannot be declared unable to make decisions or unconscious by just anyone. A physician needs to make the determination, and a second physician must agree and confirm the diagnosis. It’s important to make sure that your physician is aware of your living will to ensure that they will follow your wishes and be willing to comply with the decisions you have made.

You Can Change Your Living Will

No one else can change your living will for you without your permission. After you create your living will, if you wish to make changes, there are specific steps you must take. You cannot simply destroy the old living will. You have to either revoke the original will, or cancel the existing living will and create a new one. 

Should You Still Name a Power Of Attorney?

A healthcare power of attorney (POA) is a particular form of power of attorney. When a person is named a healthcare POA, they can exclusively make medical decisions for you if you are unable to do so for yourself. A healthcare POA is different from a living will, but it is an option available to you. 

You Should Have a Living Will Regardless of Your Age

Although you may think a living will is something for the elderly, any adult can benefit from creating a living will. Even healthy young adults run the risk of accidents or unexpected illnesses that could leave them unable to make their own healthcare decisions. Having a living will in place can help alleviate the burden presented to parents and spouses if something should happen to you.

Will Your Living Will Be Followed?

Your doctors will ultimately make treatment decisions for you, and they are not required to follow your living will, however they typically do. To make sure your doctor will respect your wishes, speak with them in advance to make sure they know your choices.

Not only will this conversation convey your wishes, but it will also allow the doctor to ask questions and clarify details, and they may be able to address something that you might have missed. If your doctor expresses that they will not comply with your will, you should discuss their reasoning and consider their input. However, if this is the case, it may be best to choose another physician that will honor your wishes.

Let Our Experienced Attorneys Help You Create a Living Will

An experienced estate planning lawyer can help you address legal matters that can affect your quality of life and health. You’ll need an expert to interpret complex Alabama laws and you’ll want the very best to help you plan for your loved ones. 

At Brackin Law Firm, our experienced Estate Planning attorneys can assist you or your loved ones with planning for long term care and ensuring medical needs are met should the time come when you or your family member can no longer care for oneself. 

Medical and Financial Planning are our specialty, and we will work with you to ensure that your future is laid out in writing. If you’re searching for a skilled attorney specializing in estate planning, living wills, and power of attorney, get in touch with us today to schedule your free initial consultation

Theft Laws in Alabama – An Overview

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Under Alabama law, theft occurs when somebody takes another’s property or services without permission or authorization. A person can do this by physically taking property, or it can be done by taking lost or unaccompanied property without taking proper measures to find the owner. 

As with any crime, there are a multitude of different penalties that can follow. What sorts of penalties follow conviction of theft in Alabama can vary depending on multiple factors. In Alabama, theft charges are categorized into multiple different classifications. Depending on what classification a charge is, the penalty will change. 

Class B felonies are the most severe theft cases in Alabama and are punishable by up to 20 years in prison. 

Offense Classifications

Each offense falls under a different classification depending on the property value and the circumstances of the case. Any case of theft will be classified as a range between a class A misdemeanor or a class B felony. 

Is Theft a Felony or Misdemeanor in Alabama? 

The two main classifications of Alabama Theft of Property cases are felonies and misdemeanors. Theft of Property in the 1st, 2nd, and 3rd degree are considered felony charges. A case is deemed a misdemeanor if it is considered Theft of Property of the 4th degree. 

Special Cases

For situations where the theft involves trademarks, trade secrets, cargo, cable, satellite reception, or gas, there are specifically outlined penalties for these thefts. Consult the Alabama code for information on these specific penalties, as they vary from the usual theft classifications. 

Fourth-Degree Theft

Fourth Degree Theft is considered a class A misdemeanor in Alabama and carries a minor penalty. If the theft involves property theft under $500, the case will likely be ruled as fourth-degree theft. 

Class A misdemeanors can carry penalties of up to a year of jail time, a fine of $6,000, or both. 

Third-Degree Theft

If the property is valued between $500 and $1,500, the offense is considered Third-Degree Theft. In addition, if a credit or debit card is the item in question, the theft is considered third-degree, regardless of the card’s actual value. 

Third-Degree Theft is a class D felony in Alabama and can carry a minimum one-year imprisonment sentence and up to five years incarceration. Fines can be up to $7,500, and in some cases, the court may enforce both penalties. 

Second-Degree Theft

If the item or service in question is valued between $1,500 and $2,500, the crime is considered a Second-Degree Theft and a Class C felony. 

If the instance involves firearms, controlled substances, or livestock, the case is automatically considered second-degree theft, regardless of the value of the items. 

Class C felonies can be charged with anywhere between a one-year and ten years’ prison sentence and a fine of up to $15,000. Again, the court may issue one or both of these penalties. 

First-degree Theft

If the property is valued at $2,500 or more, the state of Alabama considers the offense to be a First-Degree Theft and a class B felony. Any situation involving a motor vehicle of any value is automatically considered a class B felony. 

Class B felonies can come with a two-year to a twenty-year prison sentence and a fine of up to $30,000.

Further Penalties and Restitution 

Alabama law includes stipulations for repeat felony offenders. What this means is that, for every number of convictions, the penalty increases. This also holds for somebody with a prior criminal history. 

Fines or jail time will increase for each offense depending on how many past felony convictions a person has and the felony offense level for the current offense. 

Second Felony: Sentence is raised one level 

Third Felony: Minimum ten years prison for class C, 15 years for a class B, and 99 years for a class A 

Fourth Felony: Minimum 15 years for class C, 20 years for class B, and a life sentence for class A 

Class D Felony with prior convictions: If the defendant faces a class D felony, and the person has two or more class A or B felony convictions, or three or more felonies in general, the penalty increases to a class C felony. 

Because the law in Alabama dictates specific sentencing guidelines, prosecutors and judges lose some discretion in handling a case. If a court wants to deviate from sentencing guidelines, it must present a compelling reason. Typically, judges will follow the recommended guidelines. 

Talk To A Lawyer

The laws in Alabama can be complex, and understanding where a charge falls in the complicated system is difficult on your own. If you’re facing theft charges in Alabama, speak to a criminal defense attorney right away. 

Brackin Law Firm can help. We understand the criminal justice process, how to work with each District Attorney and Assistant District Attorney, city prosecutor, or judge handling your criminal case, and the possibilities prior to ever entering the courtroom. 

Our experience allows us to better inform our clients of what to expect prior to even entering the courtroom. We believe in integrity, justice, and honor. We know that going through the legal process is not easy and therefore aim to take as much off of your plate as possible. Contact us today, and let us fight for your future.

Divorce and Your Child’s Best Interest – Co-Parenting After A Divorce

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Divorce is a difficult process, from dealing with lawyers to adjusting to a new way of life. When there are children involved, they’re faced with a lot of uncertainty. Their everyday lives will change as well as yours. Bringing in the right child custody lawyer, as well as incorporating counseling, can alleviate some of the discomfort involved, but how do you possibly explain to your children what the future may hold as your family goes separate ways? 

No one experiences more discomfort in a divorce than the children involved. One of the primary concerns of divorcing couples is what happens to the children. While one parent may think they have more parental rights than the other, both parties need to consider the well-being and best interest of the child. 

How you determine child custody with a family law attorney will affect the trajectory of your child’s life, so fully understanding child custody laws in your state and how your child’s best interest plays a role in your divorce will benefit all involved. 

Sure, your mind might be set on doing everything possible to keep your child with you. Still, considering all options with a family law attorney and understanding the emotional adjustment this will be for you and your family will help you in the long run. This article will explore how the court determines child custody and the role that the best interest of the child plays in the process.

Co-Parenting 101

When it comes to child custody, co-parenting is typically in the child’s best interest, barring any immediate danger to the child. The child(ren) won’t see both parents daily, and their everyday life will look a little different. They’ll be spending time at two different homes, which can be a huge adjustment. With positive co-parenting, some of the messiness often involved with the fallout of divorce can be mitigated. Here are some ways that you can effectively co-parent during and beyond the divorce itself and preserve your child’s best interests above all else.

1. Don’t Speak Poorly About Your Ex

One of the cardinal rules is to speak no evil, especially around children. When they hear you talking poorly about your ex, they will internalize those feelings themselves and may lash out as well. You may not want to deal with your ex extensively, but they are still the other parent in the picture. Your child loves them. Keep those thoughts to yourself. 

2. Co-Parenting Isn’t About What You Want

Sure, the divorce was about what happened (or was lacking) between you and your ex, but co-parenting and custody are about the kids (and only about the kids). The best interest of the child or children involved should be the primary focus, and tunnel vision can often get in the way of that. 

The kids aren’t objects to be had in the divorce. They are yours, both of yours, to cherish and make memories with, even if the future may look a little different. What’s best for the child may not always feel good from your perspective, but it will benefit your child greatly in the long run.

3. Know Your Schedule, and Stick to It as Much as Possible

Being realistic regarding your priorities and schedule is an important thing to consider when developing a co-parenting plan. Keeping a sense of consistency is key in things like your work schedule and other obligations that you had even when you were married. Stick to a schedule, and don’t alter it based on the emotional response of the divorce and pending child custody. Develop a sense of normalcy in both your schedule and your child’s. 

4. It’s Up To You and Your Ex To Cooperate 

Both parents need to keep in mind that the child wants both parents around. They need to feel the support and love of both parents.. Just because you didn’t agree with the other parent as a spouse doesn’t mean they’re a terrible parent, and putting the needs and well-being of your child first is crucial to striking a healthy balance that benefits everyone, regardless of the current circumstance. 

5. Find an Agreeable Communication Method

Again, you may want to interact with your ex as much as possible, but the needs and best interest of your child have to remain the priority. This means maintaining effective communication with your ex when it comes to your child.

For co-parenting to work best, communication is key. You can use several methods that reduce in-person or over-the-phone contact, including text, email, shared calendars, and more to keep each other on track and communicate about things like sports, school, appointments, and more. 

Baldwin County Family Law—Representation Tailored To You and Your Family

At Brackin Law Firm, we get the results you deserve when you need them most. With more than 40 years of experience, we can provide comprehensive care and representation tailored to your needs and unique situation. 

No one divorce or child custody case is the same as the next. We are ready to help you understand your legal stance as a parent, contact us today for the best legal services in Baldwin County. 

What You Need to Know About DUI Law in Alabama

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Getting a DUI, or “driving under the influence,” is a severe crime in all 50 states and can have long-lasting consequences for both the driver and, in some cases, the victims of impaired driving. In 2017, Alabama had the fifth-highest number of drunk driving-related deaths

It’s important to know what constitutes drunk driving and the penalties for breaking the law. A DUI can have long-lasting consequences, which means there are things you need to know, especially considering how thin the line can be between a nice brunch or night out and a drunk driving arrest. 

DUI Law in Alabama

Today, we’ll take a look at how drunk driving is defined and analyze the consequences of a DUI arrest in the State of Alabama.

Defining Drunk or Under the Influence (DUI)

In Alabama, it is illegal to drive while under the influence of drugs or alcohol to such an extent that you cannot safely do so. The law distinguishes between commercial and non-commercial drivers, those who drive school buses, and those under the age of 21, with different legal limits of blood alcohol content (BAC) for each group. 

  • Drivers over the age of 21 are considered legally drunk with a BAC of over 0.08%
  • Drivers who operate school buses or are daycare workers are legally intoxicated with a BAC of 0.02%
  • Commercial drivers are legally drunk with a BAC of 0.04%
  • Drivers under the age of 21 are legally drunk with a BAC of 0.02%

Actual Physical Control Defined

Additionally, you don’t necessarily have to be driving to get a DUI in Alabama. The law prohibits a person under the influence from driving or “being in actual physical control,” of a vehicle. This means you can still be convicted of a DUI if you aren’t driving but are, for example, sitting in the driver’s seat with your keys in the ignition. 

The law can be very unclear about what constitutes “physical control” of a vehicle, so it’s always best to play it safe and not enter your vehicle if you find yourself in this kind of situation. 

Penalties For Getting a DUI

The penalties for getting a DUI vary based on whether it’s your first offense and other factors, such as if there was someone under the age of 14 in your car. Generally, if you are charged with a DUI, you can expect to at least pay some fines, be ordered to take classes, spend time in jail, or have your license revoked or suspended. 

Penalties For First DUI Offense

The penalty for a first-time DUI can be imprisonment for up to one year, a fine between $600 and $1200, and a driver’s license suspension for 90 days. A first-time offender may also be required to receive treatment for substance abuse or attend a program meant to reduce DUIs. 

Penalties For Second DUI Offense

The penalty for a second DUI offense is higher if it occurs within ten years of a first DUI charge. Your driver’s license could be revoked for up to one year, and the fines are higher, with a mandatory minimum of $1100 and a maximum of $5100. There is also a mandatory minimum sentence of at least five days in jail or at least 30 days of community service. 

Penalties For Additional DUI Charges

A third DUI charge carries a prison term of up to one year with a mandatory minimum of 60 days. This prison sentence can also include hard labor. In addition, fines can range from $1200 to $10,100, and your driver’s license can be revoked for three years.  

If a driver is charged with a fourth DUI, the prison term can range from a minimum of one year and one day to 10 years. The fine can be from $4,100 to $10,100, and the revocation period for a driver’s license can be five years. 

There are additional penalties for driving drunk when a child under the age of 14 is in the vehicle. In these cases, the driver can be sentenced to double the mandatory minimum sentence they would have received had a child not been in the car. 

Similarly, drivers with a BAC of over 0.15% are also subject to double the mandatory minimum sentence they would have received had their blood alcohol content been below 0.15%. 

Additionally, school bus and daycare drivers, commercial drivers, and drivers under the age of 21 face harsher penalties for driving under the influence. 

Avoid a DUI Charge and Contact Us Today

Of course, the best ways to avoid a DUI conviction are to not get behind the wheel if you have had anything to drink, designate a sober driver, or take public transportation. 

However, if you’ve been charged with a DUI, Brackin Law Firm can help. We understand the criminal justice process, how to work with each District Attorney and Assistant District Attorney, city prosecutor, or judge handling your criminal case, and the possibilities prior to ever entering the courtroom. 

Our experience allows us to better inform our clients of what to expect prior to even entering the courtroom. We believe in integrity, justice, and honor. We know that going through the legal process is not easy and therefore aim to take as much off of your plate as possible. Contact us today, and let us fight for your future.

Contact Brackin Law Firm Today!

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(251) 943-4040

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