You may have seen an article or heard an expert on tv or the radio talk about the importance of avoiding probate. It is a popular topic, especially among seniors. You may have even filed it away in the back of your mind to give more thought to at some later date. “Now” is that later date! Let me tell you why.
Probate, or the probate process, is a court-supervised disposition of a deceased person’s assets and liabilities. It is designed to pass the deceased person’s assets to their next-of-kin or beneficiaries according to Alabama law. In theory it works quite well and our probate judges and their clerks work hard to make sure that happens.
The problem is not the judges or their clerks!
The problems with probate and the reasons why everyone should avoid it if they can, are several. Here are just some of those problems:
It is expensive!
It takes forever!
It can seem to be far too formal!
It can drive a wedge between family members!
It can result in an outcome that was not what the deceased intended!
It is a public forum where anyone in the world can learn what is being distributed!
It can involve other professionals, each charging their own fees!
It may require your personal appearance in court!
It may require someone to be bonded, an additional hurdle and expense!
It may encourage other family members to challenge the proceeding, resulting in additional delays and legal fees!
If minors are involved, it will require the appointment of a Guardian ad Litem, also resulting in significant additional fees!
It can expose the Executor to personal liability if he/she doesn’t follow strict rules of conduct!
If these are not enough to convince you that probate should be avoided when possible, there is another hurdle to jump before a probate case can begin. That hurdle is the county clerk’s office (not the judge’s clerk), in one particular county that I will not name.
In one county in our area, the clerks seem to have one mission and that is to refuse to accept any case that is submitted to them. Although they are not attorneys and it is doubtful that they even graduated from college, for some reason they see their job description as telling attorneys what will and what will not be acceptable to the Court. These clerks do not work for the Probate Judge. They are employed by the County Commission. If you have ever had a bad experience getting your car tag renewed, that clerk was a breath of fresh air compared to the clerks who do intake in Probate Court. If your estate is forced to go through probate, your widow or your children will have to deal with these clerks, directly or indirectly. Wouldn’t it be nice to help them avoid such an unpleasant interaction?
Probate CAN be avoided though!
Many people avoid probate when they die. The key is taking steps while you are still alive. If you do nothing, depending on your marital status, assets and family situation, your estate will be forced into probate. If you take certain steps now, while you still have your ability, you can avoid such an unpleasant and expensive process.
One reminder- having a Will in place DOES NOT AVOID PROBATE! Don’t make this mistake. A Will directs the probate process, but it does not avoid it.
If you want to make your widow or children’s life vastly easier when you die, consider calling us to learn more about avoiding the probate process. It isn’t as expensive as you might think and is certainly less expensive than probate itself!
William G. Nolan
Elder Law Attorney
Nolan Elder Law & Estate Planning LLC
200 Office Park Drive Suite 303
Mountain Brook, AL 35223