How to Avoid Probate in Alabama

As you make your estate plans, if you are looking to avoid probate in Alabama, the most effective options will be to establish a living trust, hold major assets in joint tenancy, and add a payable-on-death designation to significant financial accounts. This can help you avoid the costs and time of having your estate handled by a probate court.

Please note that estate law, like all property law, is highly state-specific. Talk to a financial advisor familiar with your state laws today to make an appropriate estate plan. Here are the basics you need to know.

Alabama Probate Costs and Schedule

Fortunately, Alabama is a relatively low-cost state when it comes to probate court. The state’s various courts set line-item line-item fees that are in the mid- to low-end for states around the country. It sets the maximum fee for an executor or administrator at 2.5% of the value of the overall estate, again at the mid- to low-end for state probate courts.

The schedule for probate in Alabama is similarly standard. By law probate must take at least six months, as an executor or administrator must post public notices of the death. This process allows any unknown heirs an opportunity to make their claims to the estate, and it gives known heirs an opportunity to raise any appropriate challenges to the will. From there, the duration of probate depends entirely on the complexity of the underlying estate. Smaller estates will typically be probated in less than 12 months, while large ones can take several years to wind up.

Create a Living Trust

The most thorough, but most complicated, way to avoid probate is by establishing a living trust, otherwise known as a revocable trust.

A living trust is a legal entity that can own, manage and distribute assets on its own authority. It can hold virtually any assets you own, from real estate and intellectual property to financial accounts. Once you establish a living trust, you can then transfer in any assets that you would like it to hold. During your lifetime, you will maintain control of the entity as the trustee, which will allow you to manage and distribute its assets for your own use. After your death, the trust will pass to a successor trustee who will distribute its assets to your heirs and beneficiaries.

This process bypasses probate entirely, which makes living trusts extremely popular forms of estate planning. However it’s important to understand that trusts have costs and complexities of their own. While the process of distributing assets through a trust is almost always faster than through an estate, the costs of a trust will often exceed that of probate and an executor.

A financial advisor can help you set up and manage a trust.

Establish Joint Tenancy

With major assets such as real estate, joint bank accounts and vehicles, multiple parties can hold simultaneous ownership. In Alabama, as in many states, this is known as joint tenancy. This means that all parties own the underlying asset. If one party dies, the other party’s ownership continues uninterrupted. There is no need for probate, because there is no transfer of ownership. This is called right of survivorship.

For example, say that you and your spouse both own your house in joint tenancy. If you pass, your spouse will continue to own the house. They will not need to inherit the property, because it will already belong to them.

When establishing joint tenancy, make certain to that you do not establish tenancy in common. This is a related form of joint ownership in which each party independently owns a share of the underlying property. Since shares are not jointly held, each share will pass to the decedent’s estate rather than the property’s co-owners.

Establish Payable-On-Death Designations

For many assets, you can establish a payable-on-death designation or transfer-on-death designation. When you set this designation, you also set a named beneficiary for the underlying asset. They have no rights to the asset during your lifetime, but when you die the beneficiary has a right to have those assets immediately transferred into their name.

This is most common for bank accounts and securities portfolios, which almost always allow payable-on-death designations. Unlike some states, Alabama does not allow transfer-on-death designations for deeds or vehicle registration.

This is not an automatic transfer. Your beneficiary will still need to request that the necessary institutions transfer assets into their name. For example, with a depository account, your beneficiary will still likely need to present a death certificate to the bank or financial institution.

To explore all of your estate planning options, talk to a financial advisor today.

Summary Distribution Process

Many, if not most, states allow a simplified distribution process for small estates. Typically this allows you to bypass probate entirely for estates under a certain size. In Alabama, this process is known as “Summary Distribution.”

To qualify for summary distribution, the total value of the estate must be under the summary distribution cap. In 2023, that is set at $34,611. The estate must not be currently in probate, nor must any related request currently be pending. At least 30 days must have passed since the decedent’s death. And, finally, all of the decedent’s funeral and burial costs must have already been paid.

If the estate meets these requirements, you can file for summary distribution. As part of this filing, you must show that all of the estate’s debts have either been paid or that arrangements have been made to finish paying any remaining debts. You must file a petition for summary distribution with the probate court, and then place a public notice of this petition for at least one week.

Once this process is complete, if the probate court approves summary distribution it will issue an appropriate court order. You can use this order to receive any estate assets held by third parties, such as banks, or to transfer any estate assets as necessary, such as re-registering deeds. You will typically have to pay court filing fees as well as the costs associated with any public notice.

Remember, a financial advisor can help guide you through the estate planning process.

Bottom Line

Alabama probate laws are relatively standard compared with other states, including associated costs and delays. To avoid this process, you can consider living trusts, joint tenancy and payable-on-death designations.

Will Writing Tips

Writing a will is a grim, but essential task. This is particularly true if you have a spouse, children or anyone else who depends on you. Think this through and get it right.
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