by Bill Miller | 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.
by Bill Miller | Feb 20, 2022 | Avoiding Probate, Elder Law, Probate
You’ve probably heard horror stories about the nightmare that is probate court. Undoubtedly, friends and neighbors have had to undergo the probate process…and chances are, they don’t have many good things to say about it.
Let us first say, probate isn’t quite as bad as it gets made out to be (though it certainly CAN be for the ill-prepared). Probate is the legal process that authenticates your will in order to properly facilitate the allocation of your assets to your beneficiaries. Upon death, the estate administration process begins, drawing together all the necessary documentation for the distribution and management of your assets, which the probate court then oversees. The most common document utilized is a will.
If an individual passes away without a will—also known as dying ‘intestate’—the estate administration process becomes much more complicated, and a time-consuming, costly probate process is almost inevitable.
Being proactive and drafting a will, as well as understanding which assets must go through probate, can make the probate process much easier, or bypass it altogether.
Which Assets Need to Be Probated?
Whether or not your assets end up in probate is dependent upon how your estate plan is set up. Essentially, any property that does not have a designated beneficiary, or is not set up to pass by operation of law, will inevitably be deemed probate property, and settled in probate court. Some examples of circumstances that lead to probate include:
- When an individual dies without a will. Without a will present, the estate becomes dependent upon the laws of intestacy, leaving the probate court to adjudicate who will inherit the deceased’s assets.
- When a person passes away as the single-named owner of titled assets. These assets include items like real estate, investment and bank accounts, vehicles, personal property, collectibles, safety deposit box contents, and other solely titled assets of the deceased.
- When property does not have a title. If the deceased does not have the compulsory paperwork for assets in their ownership, and the property isn’t clearly named in the will with the deceased’s wishes, the assets become probate property.
- When the beneficiary predeceases the testator. If your will hasn’t been updated before your named beneficiary passes away, their inheritance will be settled in probate.
Actions You Can Take Now To Avoid Your Assets Being Probated in the Future
As you can see, there are many factors that could land your estate in probate court; however, there are some things you can do now to make a more ironclad estate plan that is specifically designed to keep your assets out of probate, or at least simplify the probate process.
- Ensure your will is detailed. While having a will isn’t enough to avoid probate (all wills must go through probate), when a will clearly defines your wishes, it simplifies the process, and makes authorization to distribute your property much less laborious.
- Establish a living trust. A living trust prevents probate because the trust takes ownership of the assets placed within it and, upon your passing, a named trustee will distribute your estate as stipulated in the trust – without the need/input of the probate court.
- Title property jointly. Property owned in joint ownership with right of survivorship automatically passes the property to the surviving owner(s), without probate.
- Name a beneficiary. Assets that have a named beneficiary—for example, your retirement plan, life insurance policy, or transfer-on-death or payable-on-death bank accounts—escape probate by sending items directly to beneficiaries.
- Give assets away while you’re still alive. Although this is a no-brainer, it deserves an honorable mention. Simply put, if the property is no longer owned by you at the time of death, it doesn’t go to probate. This, however, can cause issues with qualifying for Medicaid if long-term care is needed, so we encourage you to speak with an elder law attorney before giving away money or assets.
At Miller Estate and Elder Law, we pride ourselves on providing clients with a high level of attention to detail that takes all of the guesswork out of estate planning. We create tailored solutions that are based on your specific goals and objectives. Our educational resources and unique programs keep you and your estate plan up-to-date, giving you the confidence needed to be secure in knowing your estate is in good hands.
Contact us today, register for a free workshop, or browse our resources, which address many common questions. With our guidance, you’ll gain peace of mind knowing your estate will be ready for smooth sailing after you’re gone.
Register for our Next FREE Estate Planning Workshop
by Bill Miller | Apr 7, 2021 | Blog, Elder Law, Probate
If you are thinking about probate court, you have probably heard that should do all you can to avoid it. Proponents of this view cite compounding costs and the emotional toll that probate takes. There is genuine merit to this perspective and yet a proper evaluation means talking about the real, not imagined costs of probate.
No fixed rate exists for probating an estate. Cost depends on the size and complexity of the estate, details of the will, whether or not there are any disputes to be resolved or debts to be paid, and where probate is undertaken. Probate fees can be broken down into filing fees and court costs, the estate executor’s fee, attorney fees, professional fees for accountants or other necessary services, and surety bonds. The following breakdown explains how each of these is calculated.
Filing Fees
Filing fees vary from county to county. In Baldwin County, you can expect to pay around $58.00 while in Mobile Country you are looking at $50.00. In Calhoun County, where our firm is located, the fee is $57.00.
Estate Executor’s Fee
Under Alabama law, the executor of an estate can file a request with the court for an executor fee of up to 5% of the value of the estate. In order to reduce the cost of probate, an executor may choose to waive their right to this fee. In addition, when a person drafts their will, they may also waive the requirement that the executor post a surety bond before assuming their appointment.
Attorney Fees
Attorney fees vary widely making even a ballpark figure difficult to provide without some basic information about the estate. In the simplest of cases, an individual may pay a few thousand dollars but this number can quickly grow as complications arise. To gain a clear estimate of potential costs, it is important to talk to a trusted attorney about the specifics of your case. Some attorneys charge by the hour. We charge flat fees for probate and the amount of the fee depends on the complexity of the estate.
Professional Fees
Once more, these fees depend on the size and complexity of the estate. Accounting will vary based not only on the amount but on the types of assets owned as well as whether the estate is subject to federal taxes (there are no state-level taxes in Alabama). Appraisal fees will likewise be a function of assets held. If a business owned by the deceased forms a part of the estate, all of these fees increase substantially.
Bond Fees
Before your estate’s executor may be appointed, they will have to post a bond in an amount determined by the probate judge. As mentioned earlier, you may waive this requirement in your will but a judge may overrule your wishes if minor children are involved in the estate.
Miscellaneous Fees
Miscellaneous fees range from insuring and storing personal property to shipping and disposal costs. In cases of complex estates that takes months or years to administer, these small costs can pile up and if your spouse or loved ones have no income of their own, they can become an immense burden as your personal assets will remain out of reach until the probate process is complete.
Miller Estate and Elder Law can assist you with every step of probate and, if you act early, can help you determine whether going through probate even makes sense in the first place. After all, trusts and other such legal tools allow you to build an estate plan that skirts the need for probate—an option that is often cheaper in the long run for those with complex assets.
To learn more, call us at 256-472-1900 or reach out via the contact form on our website.
by Bill Miller | Mar 17, 2021 | Blog, Probate
You have probably heard that probating a will in Alabama can be a taxing and costly process. In many instances this is true but it need not always be the case. In fact, there are situations in which administering an estate through probate is the most painless of the available options—but only if you are prepared. In order to shed light on the subject and ensure your estate is optimized for the easiest possible administration, we have prepared the following breakdown detailing when (and when not) to probate.
When You Might Seek to Avoid Probate
Probate can get messy when your estate includes complex assets such as stocks, other types of investments, or fine art, when a family is feuding, or when no estate plan exists. In either of the first two cases, a trust-based plan may be the way to go as this option sees to it that your assets pass directly to heirs without intervention by the courts.
Another situation in which probate may cause problems is when your spouse or dependents have no income of their own. Probating a will can take weeks or even months, after all, and during this time beneficiaries will not be able to access your money. This means that funeral costs, household utilities, property insurance, taxes, and possibly even storage fees may need to be paid out of pocket while probate runs its course—a burden which can sometimes make meeting even basic needs difficult for loved ones.
Finally, you might want to avoid probate if you are worried about prying eyes. As a state court procedure, probate records are public records which means that anyone interested can access information about your assets, liabilities, beneficiaries, and personal representatives. Worse, nowadays many states make such information available online meaning the curious need not even visit the courthouse to gain insight into your private affairs.
While it is true that strategies to avoid probate such as placing assets in a revocable living trust come at an upfront cost, often they save you money in the long run—especially in cases of complex estates which require equally complex court proceedings
When You Might Consider Probate
Despite its bad reputation, probate has its place. In the case of smaller estates with simple assets, for instance, going through the courts can be an efficient, cost-effective process. This is especially true for very small estates that qualify for Summary Distribution of Small Estates—a shortened form of probate specific to Alabama.
Probate may also be beneficial in instances where creditor claims are a concern. Opening a probate case shortens the time that creditors have to file their claims and if they these claims are not filed properly and in a timely matter no payments need be made.
Lastly, probate may be useful when transparency is a concern as the courts require full disclosure of all information and costs. This means that during the probate process, beneficiaries gain the peace of mind of knowing that the executor or personal representative is laying everything on the table.
Ultimately, the decision to probate or not to probate is personal and yours to make. At Miller Estate and Elder Law we are happy to sit down, talk about your unique needs, and upon this basis craft a plan that work for you—no matter the direction you choose. To get started give our office a call at 256 251-2137 or reach us through the contact form on our website.
by Bill Miller | Jan 25, 2021 | Blog, Elder Law, Estate Planning, Probate
If there were ever a year to buckle up and learn a little bit about estate planning, this is it. After all, while 2020 is behind us and hope is on the horizon the Covid-19 pandemic has made it amply clear that the future is uncertain and preparedness is the best defense. Estate planning plays a part in this. Not only does having a plan protect your hard-earned assets from avoidable taxes, aggressive creditors, and potential reckless spending by heirs, it also ensures your loved ones are spared the cost and burden of probate court should the unthinkable happen.
What Is Probate?
Probate is the state-run, court-sponsored process of authenticating a person’s last will and testament. It is the place that evaluates a passed loved one’s assets, pays their final bills and taxes, and distributes what is left over to beneficiaries. As simple as this all sounds, the reality is a minefield of contentious family decisions, legal costs, and changing legislation. Each state determines their own probate laws and they are subject to regular update and so attempting to administer probate yourself or with the help of an automated service is a gamble of both resources and time.
An experienced probate attorney can help you avoid all of this but the financial cost is often greater than organizing an estate plan and the emotional burden is untold.
Avoiding Probate
Hassle and associated fees are not the only reason to avoid probate; for some, they are not even the main reason. While awaiting probate, your heirs will not see a penny and may not have access to your accounts. They will need to pull from their own pockets to cover not only court costs, but property insurance, taxes and even storage fees until probate is officially opened. In present times, when so many peoples’ finances are already stretched to the limit, this can be devastating.
Another reason to skirt probate is that records are public and available to anyone to view. You would not want your bank balances shared openly while living and there is no reason you would want otherwise once you have passed on.
In addition to expediting the process and saving on the cost of distributing your assets, an estate plan that avoids probate is also private. It keeps everything in the family, literally.
The first step to getting an estate plan off the ground is to list all you own and organize a family meeting. Once you have addressed the delicate subject of inheritances and chatted about who might serve as executor, financial power of attorney, and medical power, the next step is to reach out to a trusted and experienced estate planning lawyer.
Your attorney, guided by your goals and wishes, ensures the rest is easy. In less time than you think and at a fraction of both the financial and emotional cost of probate, you’ll have your affairs in order and you’ll move on to living your life secure in the knowledge that at least one of the future’s big uncertainties no longer looms on the horizon.
To see how we can help you contact Miller Estate and Elder Law today!. You can also simply call us at 256-472-1900. Talk to you soon!
by Bill Miller | Feb 25, 2019 | Estate Planning, Probate
When doing your estate planning, one question to ask is “will your estate go through probate?” It is said that nothing is certain except for death and taxes. Should probate be added to that list? There may be ways to avoid probate altogether.
Basic Information About Probate
Probate is a process through which a deceased person’s property is distributed to their heirs. Valid claims against the person’s estate are also paid during probate. An estate may have to go through probate whether the decedent left a Will or not. However, there are some exceptions.
The Alabama Small Estate Act allows personal property only to go through a summary distribution process without requiring full blown probate administration of the estate. There are rules and restrictions to dealing with a small estate, though. For one thing, if the estate own real estate, there cannot be a small estate administration. Additionally, the value of the estate must be minimal (nor more than $25,000 or so).
Also, not every asset
will become part of the probate estate. Some of the exceptions are listed
below.
Answering the Question Requires More Questions
To answer, “Will your estate go through probate?” ask
yourself the following:
- Do you own real estate? If the property is jointly owned with a survivorhip provision, it may pass directly to the other owner(s).
- Are you the sole owner of any property? If you are the sole owner of property, it will pass to your heirs through probate.
- Do you have any financial accounts or insurance policies? If so, have you named beneficiaries for these account? Since beneficiary designations bypass your Will, these accounts and your insurance policy do not become probate assets.
- Have you created and funded any trusts? Many people use a revocable living trust to pass property to heirs without the need for probate. Assets funded into the trust during the lifetime of the decedent will avoid probate. If the trust is created through a Will, (a testamentary trust) then the Will does go through probate and then the trust is created.
- Do you own other asset that will not pass through probate? It’s complicated. Some assets may pass to your spouse as their elective share of your estate.
The Best Way to Deal with Probate
Leave a complete, up-to-date estate plan behind for your family. The guidance you offer through your Will and revocable living trust is priceless. By doing proper planning, you can decide “will your estate go through probate” yourself.
At Miller Estate and Elder Law, we work with families everyday who are dealing with the probate process. We also work with people as they set up their estate plans. Contact us at 256-472-1900 and let us help you. We also do free workshops and offer free resources on our website.
Miller Estate and Elder Law is now located at 818 Leighton
Avenue in Anniston, but we serve clients in Leeds, Gadsden, Hoover, Talladega,
Vestavia Hills, and surrounding areas.
