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Nolan Elder Law and Estate Planning, LLC Blog

Sunday, June 18, 2017

Alabama Elder Law Attorney - What Exactly Is Probate and Why Should I Avoid It?

Probate is a court process by which estates are administered. The process usually involves collecting the deceased person’s (decedent’s) assets, paying off liabilities and taxes and finally distributing what’s left to the beneficiaries of the estate.

The probate process is usually long, expensive, and time-consuming. Beneficiaries go through a process that can last months and accumulate high costs along the way, all of which are payable from the decedent’s estate, leaving beneficiaries with less than they deserve.

Thankfully, an extensive probate process can be avoided, with the help of an experienced Alabama probate and estate administration lawyer.

The Probate Process

Probate begins with a court petition to open probate in the country where the deceased died. The petition is usually filed together with a copy of the deceased’s death certificate and any will and trust documents, if present.

Once the court is satisfied with the validity of the documents, the person nominated in the will to serve as an executor will take an oath and then will be issued with testamentary letters to begin acting as the personal representative of the deceased. Where there is no will, the court will appoint a personal representative, usually a surviving spouse or child of the deceased.

The personal representative’s roles include collecting all the deceased’s assets including real estate, bank deposits, stocks, bonds, insurance and investment accounts. The personal representative is then required to notify creditors that the deceased’s estate is in probate. Legitimate creditors who respond should be paid from the estate. Taxes must also be paid from the assets of the estate. What remains afterward is distributed to the beneficiaries.

If the decedent left a will, distribution is carried out in accordance with the will. Where there is no will or where the will is invalid, the remaining estate is distributed according to state law.

The Problem with Probate

Probate is a lengthy process that can take months. If the estate of the deceased is complicated or expansive, it may take long to consolidate all the assets. To exacerbate matters, issues such as the challenging of a will may lengthen the process even further, denying the deceased’s loved ones closure.

In addition to being time-consuming, probate is expensive. There are court fees and attorney fees associated with filing a petition and defending the will. There are valuation costs for some of the deceased’s assets, especially where several creditors are involved. Then there’s the issue of the personal representative’s compensation. All these are usually paid out of the estate of the deceased, ultimately reducing the portion of the estate to be shared among family members.

Avoiding Probate in Alabama

Probate can be avoided through a number of ways such as:

  • Creating a living trust and naming a trustee to take ownership of your assets at your death
  • Establishing joint ownership of property such that at your death, the surviving owner automatically takes ownership
  • Adding payable-on-death designations to bank accounts so that the person you name can claim ownership of the money in the account at your death.     

There are many other ways to avoid probate. Talk to an Alabama elder law attorney to find out if there are other options to suit you and your family’s needs.  If you have questions about estate planning, contact us today for a consultation. Our experienced estate planning lawyers will walk you through all of your options.


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