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What is Probate Court & How Does it Work?

What is Probate Court & How Does it Work?

by | Jun 27, 2022 | Estate Planning, Probate

Probate court is the legal process that oversees wills, estate administration, and conservatorships. When a person passes away, before their assets can be transferred to their intended heirs, their estate may be subject to the probate process. During this process, the probate court will authenticate the decedent’s will, oversee the assessment of their assets, make sure all taxes and debts are paid, and distribute the remaining assets to their heirs, as outlined in their will. If there is no will, the court will distribute assets following that state’s intestacy laws.

Probate can be a lengthy and complicated process, not to mention a very public one. Those with complicated estates will often try to avoid this process by deploying certain estate planning tools. However, probate is not always avoidable.

When is Probate Necessary, and When Can it Be Avoided?

The laws governing which assets need to go through probate—and which can avoid probate court—are complex. As a general rule, though, wills are always subject to the probate process. If you die intestate, which is to say without a will, then the probate process becomes even more complicated, as the court is charged with making decisions about how to distribute your assets.

There are, however, certain assets that do not need to go through the probate process. If the deceased had set up a living trust, then the trust is not subject to probate. Rather, the assets held within the trust can pass directly to their intended beneficiaries. In addition, any asset that allows you to name a beneficiary—such as life insurance policies or retirement accounts—can go directly to the named beneficiary, without being subject to probate court. Similarly, jointly-titled property with survivor’s rights does not need to go through probate.

Of course, trusts are not always a fail proof way to avoid probate. Working with a qualified estate planning attorney is the best way to ensure your estate stays out of probate after you pass away.

What is Probate and How Does the Process Work?

The process begins when an individual, usually a family member, files a petition for probate. Then the probate court will appoint an executor of the deceased person’s estate. The executor, generally in conjunction with a probate lawyer, will be responsible for making sure the assets reach their intended beneficiaries.
If the person dies with a will, the first step is for the court to ensure that the will is valid. After that, the executor will find and inform any beneficiaries and creditors of the person’s passing, and arrange to settle the person’s debts. Then, all the person’s assets must be located, and their values assessed. Finally, all remaining assets will be distributed to the designated beneficiaries.
In cases where a will is present and not contested by creditors or predators, the process is fairly straightforward. It can get much more complicated if the person dies without a will, or if the will is contested. In these cases, the probate court plays a larger role in determining the allocation of assets amongst the deceased’s next of kin, or adjudicating disputes among potential heirs.

Hiring a Probate Lawyer

Probate court can be a complicated process, but it is an important tool for making sure a person’s estate is properly distributed. If you’re named an executor of an estate, or are otherwise involved in the probate process for a loved one who has passed away, hiring an experienced probate lawyer can make the proceedings considerably easier.

At Miller Estate and Elder Law, we have years of experience guiding clients through the probate process. Contact us today using the brief form below to find out more about our probate administration services.



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Estate Planning for the Sandwich Generation: Protecting Your Family While Caring for Aging Parents

Estate Planning for the Sandwich Generation: Protecting Your Family While Caring for Aging Parents

by | Jun 14, 2022 | Estate Planning, Medicaid

sandwiches on plate

The “Sandwich Generation” is a term coined to describe those who are caring for aging parents, as well as for their own children. Thanks to longer life spans and the fact that young couples are waiting longer to have children, an increasing number of people in their 40s and 50s are finding themselves challenged with these dual responsibilities.

Needless to say, having to look after two different generations of loved ones can present unique challenges, especially when it comes to estate planning and long-term care planning. Never mind the care and attention your parents and children need, the amount of time, energy and resources required to maintain this tricky balance can leave you unprepared for your own retirement and old age.

Luckily, there are a few steps you can take to balance your caretaking priorities, while also preparing for your own future.

Considerations for the Sandwich Generation

  1. First, make sure your own affairs are in order. Before you can provide for the needs of your parents, you first have to take care of yourself. Take a look at your finances to see what you’re working with. Make a list of all your assets and expenses, and determine how much money you can set aside for old age and retirement. Then, work with an estate planning attorney to ensure you have the proper documents in place to protect your family, your future, and your legacy.
  2. Assess the extent of your parent’s needs. Next, take an honest look at the physical, economic, and social health of your parents, and determine how much assistance they’ll need in the coming years. Some areas to consider in making your assessment are cognitive health, home safety, mobility, social interaction, and medical needs.
  3. Have “The Talk” with your parents. In many ways, this can be the hardest part, but it is important to involve your parents in the process, so they don’t feel like you’re making decisions about their future without any input on their part. It is important that you assure your parents that you’re not trying to take away their independence, and to remind them that you are helping to provide for both yourself and your children.
  4. Consider whether a conservatorship or guardianship is necessary for your parents. If your parents are suffering from dementia or another cognitive impairment, it may be necessary to make special arrangements for their well-being. Conservatorship and guardianship are two helpful options for managing this difficult situation. In these arrangements, a court appoints a person to make decisions about your parent’s care and property, whether that person is you or someone else. Establishing conservatorship or guardianship can be a lengthy legal process, and you will need to hire an estate planning attorney to help you navigate the process. If your parents are still healthy and cognizant, make sure to speak with an elder law attorney, as having the right documents in place now can save time, money, and a length court process trying to navigate conservatorship or guardianship later.
  5. Provide for your children. With all the focus on your parents, it can be easy to lose sight of protecting your children’s needs, both emotionally and financially.

It can be a difficult balancing act providing for two generations with vastly different needs, but you need not go it alone. An experienced estate planning attorney can assist you throughout all stages of this trying but important process.

At Miller Estate and Elder Law, we have many years of experience helping members of the Sandwich Generation navigate the complexities of their many responsibilities. Having the right legal documents in place now can save you from a major headache later. Contact us today to get started providing for your and your family’s future, or download our free guide, Caring for Aging Parents. Complete the brief form below to get your FREE guide today!



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Medicaid Eligibility: How Can I Protect My Assets if I’m Already in a Nursing Home?

Medicaid Eligibility: How Can I Protect My Assets if I’m Already in a Nursing Home?

by | May 31, 2022 | Estate Planning, Medicaid

Moving into a nursing home is not only an incredibly stressful process, but it is extremely costly, too. Unless you’ve been carrying long-term care insurance, you are probably going to end up paying the costs of the nursing home care out-of-pocket until you qualify for Medicaid. When paying out-of-pocket, most people find themselves quickly running through their life savings…and their loved ones’ inheritances.

Because the need for long-term nursing care can arise unexpectedly, it’s preferable to plan for this situation well in advance. By spending down your assets throughout your lifetime—in advance of Medicaid’s 5-year lookback period—and establishing asset protection trusts, you can help ensure that you will qualify for Medicaid when the time comes. If you find yourself facing an unexpected nursing home stay, however, and you haven’t made the proper preparations, Medicaid crisis planning can help. You don’t have to lose everything you’ve worked a lifetime to accrue…

How to Protect Your Assets and Qualify for Medicaid

Medicaid eligibility is based on two factors: the assets you own, and your income. Because Medicaid only covers nursing home stays when a person doesn’t have any other resources, estate planning professionals recommend that you “spend down” your assets gradually over your lifetime. This process allows you to place your assets in trusts or other estate planning vehicles so they are protected—while still allowing you to qualify for Medicaid.

One mistake that many people make when faced with Medicaid eligibility is to give away or sell off their assets all at once. It is easy to panic when you find yourself faced with a nursing home stay, and the sudden need to qualify for Medicaid. However, when you apply for Medicaid, your financial transactions over the past 60 months are scrutinized, and—if you have given away your assets too readily— Medicaid will hit you with a sizeable penalty.

Another mistake people make is to convert exempt resources into countable resources. Your house and car are exempt resources and will not count towards your Medicaid eligibility. If, however, you sell these resources, the money you receive does count, and will be wasted paying the nursing home before Medicaid will step in to cover the costs.

Medicaid Crisis Planning

While it’s far preferable to plan for all possibilities well in advance, if you suddenly find yourself or a loved one facing a nursing home stay, it is still possible to hold on to at least some of your assets. Medicaid crisis planning, a process which allows you to quickly qualify for Medicaid, can be an extremely helpful option. It is important that you speak with a professional estate and elder law attorney before you make any moves that may put your assets—and your long-term healthcare—in jeopardy.

At Miller Estate and Elder Law, we have years of experience working with families facing a nursing home crisis situation. Contact us today using the brief form below to get started on devising a plan to protect your hard-earned assets, whether you are already in the nursing home, will need nursing home care soon, or are (hopefully) many years away from needing long-term care.

Feel free to contact our office with questions. You can also download a free copy of The Basics of Estate Planning in Alabama, or attend one of our upcoming free workshops.

If you need more guidance, we are happy to help. Contact us using the brief form below.



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Estate Planning Questions: Can an Estate Administrator be a Beneficiary?

Estate Planning Questions: Can an Estate Administrator be a Beneficiary?

by | May 24, 2022 | Asset Protection, Estate Planning

According to the Alabama probate code, an estate administrator serves the same function as a personal representative, which is the legal term used to describe an individual appointed by the court to carry out the terms of a will, or a matter of intestacy. There is no prohibition insofar as a beneficiary being appointed the role of estate administrator, but it is important to note the fiduciary duties that this legal role entails.

Difference Between Executor and Estate Administrator

The difference between an estate executor and an estate administrator is simply by the way in which these roles are appointed. When someone drafts a will, they name someone to act as the executor of the estate. Once the estate goes to probate, the court will appoint someone to act as estate administrator per that state’s intestacy laws. Unless the court deems the named executor unfit for the role of estate administrator, this person is generally one and the same.

That being said, there is no reason why a beneficiary cannot also be the estate executor or estate administrator, at least legally speaking. There are, however, reasons why you may want to choose an objective, third-party to administer your estate.

Let’s say you own a modest home, a car, and a 401(k) account worth $200K. After consulting with an estate planning attorney, you decide that drafting a will and naming your only daughter as the executor of your estate is the right move. You also choose to name your daughter as beneficiary. Since the combined value of your home, vehicle, and retirement account is greater than $25K, your daughter will have to enter the will in Alabama probate court.

In this example, your daughter has what it takes to be both a beneficiary and an estate executor, as well as the estate administrator. This is what the Alabama probate court will expect from your daughter:

  • Carry out your last wishes as outlined in the will
  • Use letters testamentary as needed in order to settle debts, distribute assets, transfer property titles, and manage the estate
  • Provide administrative reports to the probate court judge

As the executor, your daughter will have the right to start the probate court process, but this does not automatically entitle her to act as estate administrator (executrix)—she will have to follow procedure, submit an application to the court, and become officially appointed as the executrix by the courts. As long as the judge determines that your daughter has the means and abilities to serve as the administrator of your estate, she can be executrix, beneficiary, and administrator all at once.

Should a Beneficiary Act as an Estate Administrator?

Not all situations will be as the one we have described above. In some cases, it may be better to designate executors who are not beneficiaries, which is particularly the case with larger and more complex estates. When you have survivors whom you think may bicker over their respective inheritances, an estate planning attorney will probably recommend naming an executor who is not a beneficiary.

Close friends who have long-standing relationships with your family could be good candidates for executors. It is not uncommon to see people choose in-laws, or people with whom they served in the military, as their executors. When executors or personal representatives are not beneficiaries, they are entitled to reasonable compensation that can be paid from the estate, though this will need to be approved in probate court.

Naming an estate planning law firm as executor of your will is also a great idea. In this case, the attorney’s fees can be paid from estate proceeds, and there is a good chance that the probate court will have no objection to the appointment of a law firm to serve as estate executor. Your chosen law firm will know exactly how to navigate the probate process, quickly and seamlessly, keeping time and cost to a minimum, and working hard to get your estate settled, so your family can reap the benefits of your hard-earned assets.

Contact Miller Estate & Elder Law

Miller Estate & Elder Law is here to help will all of your estate planning, probate, estate and trust administration, and elder law needs. If you have been named executor of a loved one’s estate, we urge you to download our free guide, 7 Steps to Handling Your Loved One’s Estate.

If you’re in need of a power of attorney or have other estate planning needs, feel free to contact our office with questions. You can also download a free copy of The Basics of Estate Planning in Alabama, or attend one of our upcoming free workshops.

If you need more guidance, we are happy to help. Contact us using the brief form below.



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What Happens if I Don’t Have a Power of Attorney?

What Happens if I Don’t Have a Power of Attorney?

by | May 17, 2022 | Estate Planning

In January 2022, American Academy of Neurology issued a statement related to the treatment of stroke victims. In essence, the statement was a reminder about the importance of reviewing power of attorney and advanced medical directive documents as part of estate planning. Let’s review the two objectives of this directive, which any estate planning lawyer will tell you is great advice:

1. In some cases, the irreversible effects of a massive stroke, which can be as unpredictable as they can be devastating, can be mitigated through endovascular therapy, but such treatments can also result in patients entering a state of medical coma. This is the kind of treatment that often requires consent, which is why it is a good idea to update medical directives. In 2013, a statistical review of endovascular treatments in stroke victims indicated a success rate lower than 40%; most patients ended up facing quality of life decisions.

2. Strokes range from the fatal to the mild; the most problematic tend to be those that fall somewhere in the middle, which means that patients are more likely to be left with onset dementia, paralysis, disability, and dangerous hypertension. This should serve as a reminder for all of us to think about drafting and executing a power of attorney (POA) in case of emergencies.

We tend to think about estate planning as something we should do in anticipation of the inevitable, but we should also think of it as planning for the unpredictable. Not everyone who suffers a massive stroke will have a history of hypertension; quite a few people are completely blindsided by sudden cerebrovascular events that leave them incapacitated or with slim chances of recovery. With all the above in mind, you certainly will not want your loved ones to deal with a stroke in the family and a lack of a proper POA to handle various affairs.

What Happens in the Absence of a Power of Attorney?

If you are able to make it through a stroke with just hemiplegia (partially paralyzed), chances are that you will have a nice shot at recovery. With the right medications plus many sessions of physical, speech, and cognitive therapy, you could recover to a state in which you can read and sign documents such as POAs, wills, trusts, advanced directives, vesting of property, title transfers, and others.

Let’s say your stroke was the serious kind that constricts blood flow to the brain. This is when your chances of recovering are sharply reduced, and you may also be left with onset dementia caused by neurological damage, which means that you would not be able to understand any aspect of estate planning at all. You will not be personally affected by the lack of a POA because of your reduced cognitive capacity; your loved ones and caretakers, however, will certainly be affected.

Without a POA, your loved ones will not have the means to access your accounts, pay your debts, or even come near your assets. If they need to pay for medical expenses, or if they are going out of pocket while taking care of you, the absence of a POA will make their lives extremely difficult and stressful.

A POA executed for emergency situations can make life less chaotic for those you really care about. With the help of an estate planning lawyer, you can avoid all those unpleasant situations that often happen when you least expect them.

If you’re in need of a power of attorney or have other estate planning needs, feel free to contact our office with questions. You can also download a free copy of The Basics of Estate Planning in Alabama, or attend one of our upcoming free workshops.



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