Most people know they should have a Last Will and Testament. What they do not know is what happens after the testator (the person) dies.
A Will does not avoid the probate process. Instead, it works to make the process easier for the Personal Representative (also called the “Executor”). Of course, it also allows the testator to state who receives property/assets and who does not.
When a person dies, property within the estate is controlled by the Will. The Personal Representative must petition the court to accept the Will. Once the court accepts the Will as a valid document, the Personal Representative must notify any creditors that the estate is open so claims can be filed with the court. A publication notice is used to notify unknown creditors that an estate has been opened. Creditors have six months to file claims with the court. After the time for claims has passed, the Personal Representative pays any valid claims and begins the process of distributing property according to the terms of the Will.
At best, an estate can be closed within seven months; and, at worst, the estate may be open for years. Fees and costs for an estate range between 4% and 9% of the value of the estate. In other words, while the preparation of a Will can be relatively economical, probating the estate may be very expensive. Further, the entire process is public record and may be reviewed by anyone that wishes to view the court file. Finally, a Will must be probated in every state where property is held. If the testator owns property in several states, the time to wrap up the estate, fees and costs significantly increase.
Next month we will look at how to avoid probate.
–Melanie Bradford Holliman
Partner, Bradford & Holliman, LLC
Practice focuses on estate planning, elder law and special needs trust.
2491 Pelham Parkway, Pelham, Ala. 35124
This article is for educational purposes and is not intended for specific legal advice.