Author: brennanrclifton@gmail.com

One of the most common scenarios we see when a person passes away is that they never listed a beneficiary on their savings or checking account at their bank. When the bank is notified that the Decedent passed away, they normally “freeze” the account and will only act at the directions of the probate court if there is no listed beneficiary. When this happens, very few options are available to the next of kin for accessing the money apart from opening a probate estate.

Payable on Death (POD) Accounts in Alabama

Many bank accounts allow the account holder to designate one or more beneficiaries to assume control/ownership of the account when the account holder passes away. By doing this, there is no question as to who will receive title to the account This is one of the most overlooked, yet simple tools that should be incorporated into a person’s estate plan. 

Retirement and 401(k) in Alabama

These types of accounts are similar to POD accounts in the way that they will also have a beneficiary designation. It is a good idea to double check that retirement accounts are titled correctly in the event that the account holder gets divorced, remarried, or the beneficiary predeceases the account holder.

What Happens if a Beneficiary is not Listed?

Because there is no mechanism directing an account transfer, it is likely that the bank will need an “order” from probate court to release the funds. This means that they can’t release any funds unless a probate estate is opened and a settlement order is issued by the Judge of Probate containing instructions for who gets what.

In what way could failing to designate a beneficiary cost me money?

Failing to designate a beneficiary often makes it impossible to receive the funds without hiring an attorney to go to probate court. Because the bank normally won’t release the funds without a settlement order from probate court, it is difficult to sidestep the need for retaining a probate attorney.

I have represented clients who ended up having to open an estate because the decedent did not designate a beneficiary on a savings account with their bank.

After their loved one died, they went to the bank but were told that the account could not be accessed due to no beneficiary being listed on the account.

As a result, they ended up having to pay me to open a full probate estate and my client did not receive the funds from the account until nearly a year later when the estate was closed.

Had my client been listed as a beneficiary on the account, they would have never needed to call me.

Bottom Line

Whether you’re dealing with a personal checking/savings account or a particular type of retirement account, make sure a beneficiary is listed. If not, the entire estate will likely have to be probated in order for the funds to be distributed to the heirs. Brennan R. Clifton, Attorney at Law, has handled numerous estates involving assets without beneficiary designations and knows how to navigate Probate court with thoroughness and efficiency.

If you’re left to deal with a loved one’s financial affairs, give our firm a call at 251-422-6417 and let us discuss a course of action for your unique situation.

A Last Will and Testament is the most basic and important component of a comprehensive estate plan. Even if your estate plan consists of carefully planned trusts, a “pour over” will acts as a safety net for property that is left out of the trust either inadvertently or exempted by law. This guide highlights some of the biggest mistakes made in poorly planned wills.

1. Failing to Waive Bond Requirements

Whenever an estate is opened, the Judge of Probate requires the personal representative to be bonded. The cost of a probate bond is normally set based on the value of the estate. Having a bond protects the Probate Court from liability should the personal representative squander the estate. But is a bond always required?

No. The bond requirement may be waived if it is stated in the will. State law allows the Testator to waive the requirement if it is put in writing in the will. Annual probate bond premiums normally range from a few hundred to several thousand dollars. In addition to the size of the estate, the bond premium can be affected by the personal representative’s credit score.

2. Bequesting Property Pursuant to Conditions Against Public Policy

Sometimes a Testator will “leave” certain property to a beneficiary granted that they fulfill a certain condition (e.g. separating from their spouse, committing a crime, attending a particular church or religion, etc). Most of the time if a will contains an unlawful provision, only that particular provision is stricken from the will. In other words, “the baby isn’t thrown out with the bath water.” Choose an experienced estate planning attorney to make sure everything in your will is enforceable.

3. Failing to Make Will “Self-Proving”

Self-proving means that the will can be admitted to probate without in court testimony. Otherwise, at least one witness must appear in court to offer sworn testimony to the probate judge. What makes the will “self-proving?” – That in addition to the two witness signatures, a notary public has also signed and stamped the document verifying their signatures as well as the Testator’s. If a will is not “self-proving” and each of the witnesses are unable to be located, the will cannot be validated by the probate court.

4. Nominating Co-Executors

This can arise when a Testator has multiple children and feels obligated to “treat everyone equally.” The truth is, the executor (also known as a personal representative) is a fiduciary for the estate. A fiduciary and beneficiary are two different things, although sometimes they can be both. 

If a will nominates two or more executors, they must act unanimously. This can be extremely difficult given the amount of decisions and tasks that an executor must complete throughout the entirety of the probate process. And it becomes even more difficult when relatives are co-executors grieving the loss of a loved one. 

5. Failing to Update Their Will

For example, updating a will for the sole purpose of having new, updated witnesses can make all the difference. If a person made a will thirty years ago when they lived in another state, there’s a good chance the two witnesses have passed away or will have to make arrangements to travel to probate court to testify. And worst case scenario, neither of the witnesses can be located so therefore, the will cannot be admitted to probate.

6. Keeping The Will In A Safety Deposit Box

There’s nothing more frustrating then not being able to locate a person’s will after they pass away. It can be especially frustrating when their will is possibly inside a safety deposit box and no one was given a key. In these situations, the bank will normally not answer any questions and might not even confirm that the decedent has a box with their bank. The only way to gain access to the safety deposit box is through an order from probate court. Always insure that a responsible person can access your will.

Contact An Estate Planning Attorney 

Give our law firm a call for assistance in drafting your will. Our extensive experience dealing with probate estates allows us to view your estate planning needs from nearly every angle. This type of experience, along with our law firm’s commitment to working hard for our clients, often enables us to avoid many common mistakes that people make concerning their will.