I have found that many people mistakenly believe that having a Will allows their loved ones to avoid probate court, which is simply not true. The only place for a Will to go is to the probate court and, in fact, you are legally obligated (in Alabama, at least) to submit a Will in your possession to the probate court for the proper administration of the decedent’s estate.
So why should you avoid having your Will pass through probate in the first place? The following are some of the primary reasons why clients choose certain estate planning mechanisms that allow their loved ones to bypass estate administration through the probate court:
- Cost Efficiency. Although Alabama does not require that you hire a licensed probate attorney to assist with estate administration, it is a lengthy and complicated process that almost always requires the help of a seasoned attorney. This means it costs money, and the fees add up quickly. The fees often include attorney fees, filing fees, executor fees and sometimes even accounting or appraisal fees. All of this money comes out of the estate, leaving less to be distributed to the beneficiaries/heirs.
- Time Efficiency. Under Alabama law, a standard estate must remain open for a minimum of six (6) months in order to allow any known/unknown creditors to come forward and make a claim against the estate. This is just the minimum time, however. If you are the petitioner or the family of the decedent, it’s important to understand that you will be at the mercy of the probate court’s calendar, your attorney’s timeframe, the amount of time it takes the executor to accomplish certain necessary tasks and more. This often means the full length of time it takes to administer even a simple estate can be twelve (12) to eighteen (18) months.
- Privacy. Many people don’t know that once you submit a Will to the probate court, it (and everything that follows during the administration process) becomes public record. While this may not bother some people, it certainly makes a difference to others who may not want known the value of the estate or who their beneficiaries are or how they made distributions to those beneficiaries, etc.
- Family Conflict. Since probate can be a long, stressful process, it can leave room for family disagreements and disputes. Beneficiaries might have hard feelings, or siblings might clash heads when it comes to their inheritances. A long probate period only gives unhappy family members time to start a fight or initiate litigation, which can further delay the process and add to the expenses