Areas of Practice

We specialize in the following areas...

 

BEST PRACTICES MANUAL

Residential and Commercial Real Estate Closings

All of our real estate closings are closed by and through Attorneys Title, Inc., and are insured by and through Mississippi Valley Title Insurance Company (Old Republic). We still do our own title searches and abstracting, and we have been an approved title agent and writing title insurance for Mississippi Valley Title since 1989.

   In the last three years, we have had the pleasure of closing more than 600 commercial and residential real estate transactions, including FNMA, VA, FHA, Reverse Mortgages, SBA loans, and IRS Section 1031 exchanges. We are an approved closing agent and have recently closed loans for most every primary and secondary market lender, including, but not limited to, Chase Manhattan, Wells Fargo, Standard Federal, New America Financial, Countrywide, ABN AMRO Mortgage Group, First Federal, AmSouth, Colonial, Regions, and SouthTrust.

   We are your professional real estate closing alternative. With a licensed attorney on staff full time, we are able to close real estate transactions, write title insurance, and prepare mortgages, loan notes, contracts, and any other legal documents necessary to complete the transaction.

   Our closing manager is Ms. Gail W. Cash. She has more than 15 years experience with real estate closings, title insurance, and other general real estate matters. Please feel free to contact her anytime with your real estate closing and title insurance needs.

 

SECTION 1031 TAX DEFERRED EXCHANGE 

1031 TAX DEFERRED EXCHANGE GENERAL INFORMATION

An Internal Revenue Code Section 1031 Tax Deferred Exchange involves the sale of real estate held primarily for investment, and deferring the payment of any capital gains taxes that may be incurred as a result of such sale by purchasing like-kind (investment) replacement property of equal or greater value. You may elect to do a “partial exchange” and take a portion of the net sale proceeds received from the sale of the primary property; however, please be advised any funds taken and received by you from the sale are taxable. Whether you elect to do a full exchange or partial exchange, please remember that any capital gains taxes that may be owed as a result of the sale will simply be deferred and not eliminated.

The first of the four basic requirements is the property sold and the replacement property purchased must both be classified by you as investment property. The term “like-kind” means investment property for investment property, and does mean the two properties have to be the exact same type. For example, the property sold can be a shopping center held for investment, and the replacement property can be a condominium or rental house held for investment. Please note the replacement property must be purchased in the same name as the property sold. If the property sold is in the name of a trust or LLC, the replacement property must be purchased in the same name.

The second requirement is the value of the property purchased must be of equal or greater value than the property sold. This means sale price for sale price and not what you netted from the sale after any mortgage payoffs or other sale expenses. Furnishings do not count. If you elect to purchase a replacement property of lesser value, you will owe taxes on the difference. Also, if you intend to obtain a mortgage loan to purchase the replacement property, the mortgage indebtedness on the replacement property cannot exceed the proportion of indebtedness on the parcel sold. You cannot receive any cash back or pay any indebtedness not directly related to the purchase.

The third requirement is to identify the replacement property. You must identify the property you intend to purchase as the replacement property NO LATER THAN 45 DAYS from the date of closing of the primary property. You must notify the escrow holder in writing of the exact identity of the property you are purchasing as the replacement property. Please be advised you cannot simply identify a condominium complex or subdivision. You may identify and purchase up to as many as three (3) replacement properties, regardless of their type and total aggregate value. You do not have to purchase all three, but you must purchase at least one of the properties identified.  If you elect to identify and purchase more than three replacement properties, please be advised the total aggregate value of all of the properties identified cannot exceed the total value (sales price) of the property sold by more than more than 200 %.  Upon completion of the contract on each identified property you intend to purchase as the replacement property, you must then execute a written assignment of each contract to the escrow holder assigning all of your interest in the contract to purchase the replacement property. If you fail to formally identify your replacement property within the 45 day identification period, the entire 1031 transaction will fail and be deemed invalid.

The fourth requirement is the entire transaction must be COMPLETED WITHIN 180 DAYS from closing date to closing date. No extensions are given for construction, improvement, or any other reason. You must complete the purchase and formally close on the property you are purchasing as the replacement property within 180 days from the date you closed on the property you are selling, and not from the date of the identification letter.  You must actually complete the closing on the replacement property and receive a signed deed to same within the said 180 days. If you fail to formally close on your replacement property within the 180 day period, the entire 1031 transaction will fail and be deemed invalid.

To initiate the exchange, you and the escrow holder must execute a written escrow agreement regarding the escrow of all net proceeds received from the sale of the property you are selling. The property being sold is generally known as the “primary” or “relinquished” property. You must also execute an assignment to the escrow holder of all of your interest in the contract to sell the primary property. Both documents must be executed prior to the closing of the primary property.

Please be advised no earnest money or other funds related to the sale can be paid to or received by you in any way, either directly or constructively, which relate in any way to the sale of the primary property. Once the escrow agreement has been executed by all parties, you will have no further rights to the earnest money or the escrowed funds in any way, except as provided by the terms of the escrow agreement. The net sale proceeds must be paid to and held by the escrow holder, and thereafter, the escrow holder will escrow the funds until the time of the closing of the property you are purchasing, generally known as the “replacement” property.

You must give written notice to the seller of the replacement property and, if applicable, the closing agency, that all or a portion of the purchase proceeds will be remitted to the seller or closing agency by the escrow agent or other qualified intermediary at the time of closing.  The said written notice must be delivered to the seller prior to or at the closing of the purchase of the replacement property, and the seller must acknowledge in writing the seller’s receipt of the notice.  The escrow holder will deliver to the seller or the closing agency the balance of the 1031 escrowed fund or the amount of said escrow fund necessary to complete the purchase.

The basic requirements of a Section 1031 Exchange are simple in concept; however, the rules are very strictly interpreted and applied with few exceptions. Sales price for sales price, 45 days to identify, and 180 days from closing date to closing date. Your complete understanding and comprehension of this transaction is essential.

NOTICE: This general information is to be used exclusively for and limited to informational purposes only; therefore, you are strongly advised and encouraged to consult and verify with your accountant or other tax professional whether this transaction qualifies under Section 1031 and is in your financial best interest.

 

Divorce Frequently Asked Questions

1. How long do I have to live in Alabama before I can file for divorce?

      Alabama law requires that you reside in the State for at least 6 months before you can file for divorce. 

2. What if my spouse does not live in Alabama?

      You can still file in Alabama, as long as you have lived here for at least 6 months. If your spouse lives in another state, the process may take longer and may be more   complicated.

3. What kind of complications?

      Your spouse will have to be served with the Complaint for Divorce, whether he or she lives in Alabama or not. Service upon a party who lives out of state may require hiring a special process server to take the Complaint to your spouse, or, under certain circumstances, by sending the Complaint via certified mail to your spouse's home. If you do not know your spouse's address, you may be able to effect service by publishing notice of the divorce in a newspaper approved by the Court.

4.  How long will it take to get divorced?

      At a minimum, Alabama law has a 30 day waiting period before a divorce can be granted. In reality, even if you and your spouse agree on everything, it may take more than 30 days to finalize your divorce and for the judge to sign your divorce decree. If you and your spouse do not agree on the terms of your divorce, be prepared for the process to take up to (and in some cases more than) a year to complete. Extremely complex cases may take several years to resolve. 

5. What costs are involved in filing for divorce?

      The fee to file a Complaint for Divorce varies by county in Alabama. In the metropolitan Birmingham area, the filing fee for Jefferson County is currently $154.00, and the filing fee for Shelby County is currently $160.00. If you hire a special process server or attempt to serve your spouse by certified mail, there will be additional up front costs. Also, if you retain counsel, there will be lawyer's fees.

6.  How will my lawyer bill me for my divorce?

      Lawyers handle divorce cases a couple of different ways. Primarily, lawyers handle divorce cases either on a set flat fee or on an hourly rate, depending on the complexity of the case and the issues involved.

 7.  How much will a lawyer cost me?

      Your attorney's fee could be anywhere from several hundred dollars to several thousand dollars, depending on the issues involved and complexity of your case. Make sure your lawyer explains the fee arrangement at the beginning of your representation so there are no surprises 

8. Can the Court make my spouse pay for my lawyer?

      Alabama law allows a Court, in its discretion, to award an attorney fee in a divorce case, but there is no guarantee that the Court will make an award.
  
9. Can I represent myself?

      Yes, but if there are children involved or assets and debts in dispute, you should seriously consider consulting with a lawyer about your divorce.


10. Can one lawyer represent both my spouse and me?

      No. A lawyer can only represent one party to a divorce. In an "uncontested" divorce, one lawyer may prepare all the paperwork necessary to finalize the divorce, but that lawyer only represents the plaintiff (the party filing the Complaint for Divorce). The other party (defendant) will have to sign an acknowledgement that the lawyer represents only the plaintiff and that he or she understands the right to have an attorney represent his or her interests in the divorce.

 
11. How much child support will I have to pay?

       In Alabama, as in other states, the courts have adopted Basic Child Support Guidelines. Your child support will be based upon these guidelines. The guidelines will use the Gross Monthly income of both parents along with monthly Health insurance costs of the child and monthly Day Care costs of the child in determining the monthly child support obligation. The Guidelines may be deviated from but, subject to the Court's approval.

12.   Do I have to allow visitation if my ex-souse fails to pay child support?

      Yes, in Alabama Child Support and Visitation are two separate issues. Your failure to allow Court Ordered Visitation could subject you to a Contempt of Court proceeding being filed against you by your ex-spouse.

13. Do I have to pay Child Support if my ex-spouse does not allow me visitation with my child/children?

      Yes, in Alabama, your obligation and responsibility to pay Court Ordered Child Support is not affected by the wrong doing of your ex-spouse. Your relief is to petition the Court for enforcement of your visitation rights through a Contempt of Court proceeding.

 

GENERAL INFORMATION REGARDING FORECLOSURE IN ALABAMA

Foreclosure of a mortgage in the State of Alabama is governed by Section 35-10-11, Code of Alabama, 1975, as amended, and most foreclosures are non-judicial.  The authority to foreclose and the power of sale are generally granted to the lender in the mortgage.  If the mortgage contains the requisite language, and absent a title defect or other potential defense, the foreclosure and sale of mortgaged property do not require a judge’s order or other judicial proceeding.

The lender is required to notify the borrower of the borrower’s default and of the lender’s election to foreclose.  The lender is required to give thirty (30) days notice to the borrower, which includes an advertisement of the foreclosure for three consecutive weeks (21 days) in a newspaper of general circulation in the county in which the property is located, listing the date, time, and location of the sale of the property. On the day of the foreclosure sale, the lender will auction the property to the highest bidder for cash.  The sale is usually conducted at the front of the courthouse unless the foreclosure advertisement directs a different place.

Pursuant to Section 6-5-248, et seq., Code of Alabama, 1975, as amended, the borrower, or any creditor or anyone else claiming by or through the borrower has the right to redeem (get back) the foreclosed realty listed in the foreclosed mortgage from the buyer for a period of six (6) months from the date of the foreclosure sale for a primary residence on which a homestead exemption was claimed during the year of the foreclosure sale for mortgages dated January 1, 2016 or later, and one (1) year from the date of the foreclosure sale for all other property.

The right to redeem is absolute, and to redeem the property, the borrower or redeemer must remit certain sums and pay certain expenses, including, but not limited to, the amount paid at the foreclosure sale, interest, foreclosure expenses, and reimbursement for the cost of any repairs or maintenance necessary to properly preserve and maintain said realty.  Upon such payment, the redeemer would be entitled to take back possession and ownership of the property, and the purchaser must surrender the property to the borrower or redeemer.

Any potential purchaser of foreclosed property should consult with a competent real estate attorney prior to signing any contract to purchase foreclosed property. There are numerous complex issues involved with purchasing foreclosed property in the State of Alabama, including, but not limited to, the possibility the purchaser may not be fully reimbursed for all monies expended by the purchaser related to the foreclosed property.

LAST WILL AND TESTAMENT GENERAL INFORMATION

To make a valid Last Will and Testament in Alabama, the maker must be 18 or more years of age and of sound mind. “Sound mind” has been defined and held to mean the maker must have mind and memory sufficient enough to know and understand the nature and consequences of the asset or object to be bequeathed, the beneficiary to which the item is to be bequeathed, the business to be performed, and the ability to discern the simple and obvious relation of its elements to each other. More simply said, the maker must truly understand and comprehend the nature of the bequest and the person, charity, or other beneficiary to which the bequest is being made.

Alabama does not recognize holographic (hand written by the maker) or electronic or digital Wills. The Will must be properly signed in original ink by the maker, witnessed by two subscribing witnesses age nineteen or older, and all three signatures must be properly notarized. If a Will contains certain language attesting to the maker and signing of the Will, the Will becomes “self-proving” and certain steps in the probate process can be eliminated.

The maker must consider numerous issues when deciding to make a Will. If the maker has a spouse or minor children, the maker has additional considerations. Some basic considerations for making a valid Will include, but by no means limited to, the following, to-wit:

  1. Whether the maker is married or single.
  2. Whether the maker has any living children and the ages of the children.
  3. Whether the maker desires to leave any specific item or money to a specific person or charity. An example would be wedding rings to daughter, or a sum of money or other gift to grandchild, church, or charity.
  4. The beneficiary (person, church, or charity) to whom the maker would like to leave the balance of the maker’s estate, including, but not limited to, home and other real estate, vehicles, money, stocks, bonds, IRA’s, and other items.
  5. If a beneficiary is not living at the time of the maker’s death, or if the maker is married and the maker and spouse die together, the beneficiaries (persons, church, charity) to whom the maker would like to leave the balance of the maker’s estate, and if more than one beneficiary, then the specific percentages to each beneficiary. For example, if a child or other person named as a beneficiary is not living at the time of the maker’s death, the maker must decide whether the share or item bequeathed to the deceased person should to go to the living children of the deceased beneficiary or to other beneficiaries.
  6. If the maker has any minor children (under the age of nineteen years) at the time of the maker’s death, the maker must decide among other issues, who will be the legal guardian of the minor child until the minor reaches the legal age of nineteen (19) years. This issue becomes more important if the mother of the maker’s children is not living at the time of the maker’s death.
  7. Also, if the maker has any minor children at the time of the maker’s death, the maker must decide whether any money or property to be bequeathed to such minor is to be given to the minor at the time of death or placed in trust for the minor. If placed in trust, the maker must decide a person or entity to serve as trustee for the minor’s money or other assets, and the age the minor must reach for the trust to be terminated and the trust paid over to the minor. Please note that the trustee does not have to be the same person named as the guardian.
  8. The name of the personal representative (executor) of the maker’s estate responsible to file the Will for probate and perform the requirements of the Will, and if that person is not living or is otherwise unable to serve, the name of an alternative. Please note the personal representative (executor) must be over the age of nineteen (19) years and should be someone preferably living within the state, but state residency is not a requirement.
  9. Any specific burial requests such as the preference to be cremated or buried in a spefic place or any other funeral requests.
  10.   Whether the maker wants a “living will” which authorizes the doctor and hospital to “pull the plug” and withhold prolonged life saving measures.
  11. Whether the maker wants a healthcare power of attorney which authorizes another person to make treatment, surgery, and other healthcare decisions for the maker if the maker is unable.

The foregoing list is by no means inclusive. Every Will is unique to its maker and the maker’s circumstances. Alabama allows a maker to exclude the maker’s children, but does not allow the make to exclude the maker’s spouse. The maker should consult with the maker’s attorney or other competent estate planning attorney before making a Will. The consequences of not making a valid Will means the State of Alabama determines the beneficiaries of the maker’s estate.


*No representation is made that the quality of legal service to be performed is greater than the quality of legal services performed by other lawyers.*