The fact is, there are a lot of common misconceptions about the probate process. And whether avoiding probate is something you should consider depends upon your particular circumstances and your estate planning goals.
When people talk about Probate, they’re usually referring to the process of administering someone’s estate after they die. For people who die with a Last Will and Testament, the will is “offered” to the probate court along with a petition asking the court to grant Letters Testamentary (i.e., the document which gives the Executor the authority to act). For those who die without a will, the petition asks for the court to appoint an Administrator to collect the decedent’s assets and administer them and eventually distribute them to the appropriate heirs. Sounds easy enough.
One “danger” of the probate process is that it just takes a good while to complete. The law requires that certain notices be sent to individuals or published in the newspaper, and it will take a minimum of 6 months. For most estates, a year is a good rule of thumb, but of course any disagreements among heirs can and will drag the process out. In addition, the speed at which probate petitions are processed can very substantially from county to county.
Another “danger” is that your will and other estate planning documents are now public record, on file in the probate court for anyone who is interested to see. Many people we talk to don’t care about that issue (after all, they’ll be dead and gone) but for others it’s important that their information remain private.
And consider this: if you die without a will, the State of Alabama has a default estate plan in place, just for you. Called the law of “intestate succession,” it determines who would get your property (and how much) if you die without a will.
If you died without a will, do you know who would get your property? (Hint: the answer may surprise you . . . particularly if you’re in a second marriage).
The good news two-fold. First, all things being equal, the probate process in Alabama is not as onerous as it is in some other states. So even if your estate plan requires your estate to be probated, a good estate plan and a qualified probate attorney can minimize the risk of delays or other problems.
Second, with proper planning, you can avoid the probate process entirely. This generally involves the use of a trust to hold or manage your assets during your life, and to continue managing them for the benefit of your beneficiaries after you’re gone. Because trusts are essentially contracts, you have a lot of opportunity to make your own rules, and to design a plan that is specifically tailored to your family.