The legal process of settling deceased affairs is called probate. While the probate process may have a bad reputation, it is the reality for many families, and it is a process that often helps settle an estate in an orderly fashion.
Your heirs may or may not need to probate your estate upon your death. However, If you were to die without an estate plan or will, your assets would certainly need to go through probate court to transfer the remaining assets to your heirs or beneficiaries. The probate process can be time-consuming, expensive, and emotional. Having a will makes the probate process significantly more manageable, and although there are still court costs and hearings involved, it will also reduce the stress.
The article will tell you several things about the probate process after losing a loved one and how to make your estate plans to avoid probate.
What Is Involved In The Probate Process?
Generally, when someone dies, family or friends are responsible for arranging a funeral and obtaining a death certificate, as well as determining what they should do with all of their loved one’s belongings. Probate transfers tangible and intangible property, bank accounts, real estate, and other assets to the beneficiaries.
Any matters left unresolved by someone who has died are usually resolved during probate. Usually, executors will oversee the probate process through the probate court. Some matters may be processed with simple court filings; however, the court sometimes requires beneficiaries and representatives to physically appear in court if any dispute, clarification, or legal challenge is necessary.
When someone dies without a will, the surviving spouse, partner, or adult child will generally have priority to open up a probate case acting as the administrator. Executors and administrators of the estate should consult with a probate attorney for legal advice and assistance.
Probate Laws In Alabama
A probate court will validate the deceased’s last will, if there is one, distribute assets to the heirs and settle all debts.
Without a will, the court must establish how to distribute the individual’s assets to their family.
- Writing a will does not help you to avoid probate; however, the terms can guide the process, and not all wills need to go through probate
- If you become the personal representative of an estate, you can initiate probate by filing a petition with the court
- Probate laws vary from state to state. The majority of states may allow you to avoid probate under certain circumstances
Example Of Probate
The following are examples of assets that are generally subject to probate:
- Untitled property that does not have a designated beneficiary
- Real property owned solely by the deceased
- Property jointly owned with another individual as tenants in common
- Personal property with a high value, which may include artwork, jewelry, and vehicle
- Upon the death of a descendent, assets that must transfer into a trust (like a testamentary trust)
- Any accounts that have not been made payable or transferable on death
When Is Probate Required In Alabama?
The need for probate in Alabama mostly depends on assets left behind and their total value. All wills do not need to be probated, and some assets do not require probate. Any of the deceased’s property that has a beneficiary designation, whether it is a retirement plan, bank account, or life insurance policy, may transfer directly to the beneficiary. This will also apply to any assets in a trust and properties owned through a transfer-on-death or life estate deed.
Probate may be necessary if:
- There is only a handwritten will, or it has vague terms
- The heirs or beneficiaries are minors with no guardian or conservator
- Supervision of the entire probate process is necessary via court proceedings
- Probate assets include land and real estate
- There must be an heirship hearing
- The deceased’s estate is substantial
Ways To Avoid Probate In Alabama
Many people would prefer to avoid probate so that their beneficiaries and heirs may receive their inheritance quickly without getting caught up in the probate process, which is tedious and may take a long time. Hiring an estate planning attorney to help you is ideal.
1. Make Sure Your Assets Are Jointly Owned With The Beneficiary
Having the beneficiary on your house deed and joint bank accounts means they will have the “right of survivorship.” The right of survivorship states at the time of the death of one owner, the remaining assets are transferred to the surviving owner. No probate will be required.
- Joint tenancy. In Alabama, property owned in joint tenancy automatically passes to the surviving owner when one owner dies, and no probate is necessary. Joint tenancy is ideal for couples, whether married or not, who purchase real estate and have bank accounts, automobiles, and other valuable properties and assets.
2. Beneficiary Designation
A beneficiary designation is commonly utilized with IRAs, 401(k)s, and life insurance. By naming a specific person as the beneficiary on your account, when you pass away, the beneficiary would send a death certificate to the company, and all proceeds would be paid directly to the beneficiary and therefore be able to avoid the probate process.
It’s also important to remember that the will does not govern any assets with beneficiary designations. An example of this will be if you want all of your assets, including those with beneficiary designations, split between several people; you would then need to name numerous beneficiaries on each of the assets and not rely on the will.
3. Living Trusts
When you make a living trust in Alabama, you can avoid probate for almost any asset you own, whether it is a bank account, real estate, vehicles, and more. By creating a trust document similar to a will, you can name someone to take over as trustee (a successor trustee) when you die. The most crucial part is that you must transfer ownership of your property to yourself as the trustee of the trust. Once done, the terms of the trust will control the property. After your death, your successor trustee can transfer it to the trust beneficiaries, or manage the assets for their benefit, without going through the probate process.
4. Payable-on-Death Designation For Bank Account
In Alabama, you can add on “payable-on-death” (POD) designation to bank accounts or certificates of deposit. Your beneficiary has no right to the money, and you will still maintain control of the funds in your account. Your beneficiary can claim the money directly from the bank at the time of your death and avoid probate court proceedings.
Are You Ready To Take Care Of Your Estate Planning?
At Brackin Law Firm, our experienced Estate Planning attorneys are here to assist you and your loved ones with planning for the future and ensuring your loved ones are cared for at the time of your death. Our attorneys are highly skilled and specialize in estate planning, living will, and power of attorney. Contact us to schedule your free consultation today!