My loved one just passed away. Do I need to go through probate?
First things first: I’m sorry for your loss. If you’re reading this, there’s a good chance you’ve recently lost a loved one, and you’re still grieving and hurting. As you try to move through these tough days, please know we’re here to carry as much of the legal and administrative burden as we can.
It’s a common question after a loved one passes: do I really need to open an estate and go through probate?
It helps to understand the basic purpose of the probate process in Alabama: to give creditors — that is, the institutions or people your loved one owed money to during life — first dibs on the property he or she left behind, before the property can be legally re-titled and distributed to heirs or those named in the loved one’s will. Contrary to popular belief, probate is usually not — and shouldn’t be! — an overly expensive and tedious experience. In most cases, it’s pretty straightforward. Don’t be afraid of probate. We’ll walk you through it.
When determining whether it is necessary to open an estate and go through probate, the main driver of the decision is whether there is property that can only be “re-titled’ through the probate process.
Practically speaking, this usually comes down to two main concepts:
Probate vs. nonprobate assets; and
Joint ownership of property.
Let’s talk about probate and nonprobate assets first. A probate asset is something that can’t pass from one owner to another unless it goes through probate first. Generally, this is any property that is either not “POD” or “payable on death”/”transferable upon death” (like an insurance policy) or property that is owned in trust. Put otherwise, insurance policies, annuities, retirement accounts, certain other financial instruments, and trust assets are non-probate (as long as they name beneficiaries other than the estate), while most everything else — like a regular bank account, a house, real property, a car — is a probate asset. Unless your loved one made special arrangements prior to death to re-title his or her probate assets, the heirs or beneficiaries under the will won’t be able to get clear title to the loved one’s property unless there is an estate opened.
But wait! There are some very common ways people in Alabama title their otherwise “probate” assets during life that may keep them out of probate after their death. Most common is what is known as “joint ownership,” or in the case of real property, “joint tenants with rights of survivorship.” Let’s say your mom and dad lived in a house together when your dad passed away. There’s a good chance they owned the house as “joint tenants with rights of survivorship.” (If you’re married and own a house, your deed probably says the same thing.) What this means is that as soon as one spouse passes away, that person’s property interest goes *POOF* and the still-living spouse owns the house outright as the 100% owner. It’s the same thing with a true “joint” bank account: once the first person dies, that interest is extinguished. Legally speaking, there’s nothing to probate because the asset isn’t in the estate — it evaporated at death.
So to get back to our question: to probate or not to probate? The answer, of course, is “it depends” — with the primary question being whether there is probate property that can’t be “re-titled” without going through probate.
Keep in mind that this is by no means an exhaustive or comprehensive analysis. There are other, rarer scenarios that may come into play, such as a creditor who seeks to open an estate in an effort to obtain payment out of whatever personal property your loved one left behind. Before deciding whether to open an estate, call us at 256-764-0097 or contact us through the website. I will listen to your scenario and let you know whether I think it advisable to open an estate, and the phone call won’t cost you anything.
And if we do decide probate is necessary, we’ll walk patiently with you every step of the way and always keep you in the loop.
