Tag Archive for: probate

Why You Should Avoid Probate

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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:

  1. 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. 
  2. 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.
  3. 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.
  4. 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

What You Need to Know About Creditor Claims Against an Estate

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Try as we might to live (and die) debt free, most people do pass away with some debt. The Executor (also
known as the Personal Representative) of an Estate is legally obligated to notify known creditors that an
estate of a decedent is being probated and it’s also a legal obligation to publish notice that an estate is
being probated, thereby allowing any unknown creditors to come forward and make a proper claim
against the estate.

Now, every state has limits on the amount of time a creditor has to come forward and make such a claim
and, in Alabama, that time frame is six (6) months from the date the decedent’s estate is opened. If no
claim is filed within that time period, you are not obligated to pay that claim. A reasonable time limit
exists so that an Executor can eventually distribute inheritances, free from the potential of later claims by
unknown creditors.

The Executor, as a fiduciary, is responsible for properly addressing any creditor claims and every state
has certain steps that must be followed. If not followed accurately and timely, the creditor may be able to
make claims against the Executor’s own assets. Hence, the critical importance of hiring an experienced
probate attorney to help assist and advise you, as the Executor, through the timely and often times
complicated probate process.

To learn more about the probate process, contact Davis, Davis & Associates today to schedule a
consultation with one of our experienced probate attorneys.

The Probate Process in Alabama

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In reality, the probate process in any state could fill up an entire book, but this blog post will (hopefully) give you a general overview of what to expect if you are anticipating having to navigate the probate court for the purposes of handling a decedent’s estate. For the purposes of this particular blog post, we will be discussing the process as it relates to filing the Will for a decedent. If an individual dies without a Will, that process is called “Intestate Administration” and will require its own post.

Probate is the court-supervised process of validating someone’s last will and testament, resolving any outstanding debts or taxes and distributing assets according to the terms of the decedent’s will. While it is (in theory) possible to undergo the probate process without any attorney, it is a lengthy, expensive and complicated process that would be best undertaken with the assistance of a qualified probate attorney.

So, let’s get down to brass tacks; the general flow of the probate process when a decedent passes with a will is this—contact the court, get appointed as the personal representative, submit the Will, inventory and submit valuation of all relevant assets, have the court and beneficiaries approval, and finally distribute the assets to rightful heirs/beneficiaries. If you are serving as the Personal Representative (also known as an Executor) you are responsible for:

  • Filing a Petition to Probate the Estate
  • Marshalling together probate assets
  • Managing and locating assets
  • Valuing and appraising estate assets
  • Receiving payments on behalf of the estate and paying taxes on behalf of the estate
  • Setting up a separate bank account for the estate with a separate EIN
  • Interpreting the Will
  • Communicating and working with heirs/beneficiaries
  • Valuing and appraising estate assets
  • Notifying creditors
  • Following all legal deadlines/attending necessary court hearings
  • Paying funeral expenses (if necessary)
  • Filing estate tax returns
  • Submitting death certificates
  • Submitting distribution receipts and officially closing the estate

Don’t be fooled, there are a LOT of minute and nuanced steps that have to be taken in conjunction with everything listed above, but this is a general outline of the tasks involved when it comes to probating the last will and testament of someone. Hence, why I highly, highly, recommend hiring an attorney who specifically does probate work and is well-versed in the law and well-known in the County in which you are operating.

To learn more about the probate process or to speak to a qualified probate attorney, contact Davis, Davis & Associates today to schedule a consultation.