Legal Matters
One of the most common misconceptions I hear about estate planning is that having a will means your family will not have to deal with probate. In Alabama, that is generally not true. A will can make probate easier and more predictable, but the will itself does not avoid the probate process.
So, what is probate? Probate is the court-supervised legal process used to administer certain property after someone dies. When a person dies with a will, the will is typically filed with the probate court and the person named as executor asks the court for authority to administer the estate. Once appointed, the executor, or personal representative, can collect estate assets, address valid debts and expenses, and ultimately distribute the remaining property according to the will. If someone dies without a valid will, the estate may still require probate. The major difference is that Alabama’s intestacy laws, rather than the deceased person’s wishes expressed in a will, determine who receives the probate property and assets.
Not everything necessarily goes through probate. Whether probate is required depends greatly on how a person’s assets are owned. For example, life insurance, retirement accounts, and other accounts with valid beneficiary designations generally pass directly to the named beneficiaries. Certain jointly owned property may also pass automatically to the surviving owner, depending on how title is held. By contrast, property owned solely in the deceased person’s name, with no beneficiary or other method for transferring the property at death, will likely require probate.
Why ownership matters. This is why simply asking, “Do I have a will?” does not tell the entire estate-planning story. An effective estate plan should also consider how real estate is titled, who is named on beneficiary designations, how bank and investment accounts are structured, and whether tools such as a revocable living trust or transfer-on-death arrangements are appropriate.
Probate is not always something to fear. Probate sometimes gets portrayed as something that must be avoided at all costs. That is an overstatement. For many Alabama families, probate is a manageable process. Problems are more likely when there is no plan, important documents cannot be located, family members disagree, property ownership is unclear, or an estate plan has not been updated after significant life changes or passing of time.
A good estate plan is therefore not simply about avoiding probate. It is about making the eventual transfer of your property as clear, efficient, and consistent with your wishes as reasonably possible.
– Grady Carden, Esq.
Carden Legal Services
(205) 201-1297
[email protected]
www.CardenLegal.com
This article provides general educational information and is not a substitute for legal advice regarding a specific situation; it does not create an attorney-client relationship. No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.
