After someone has passed away, who owns their real and personal property? In the state of Alabama, there are two court processes to answer that question. Intestate Estate Administration and Probate of a Will. If someone passes away without a Last Will and Testament, this process is called Intestate Estate Administration. If someone passes away with a Last Will and Testament, this process is called Probate of a Will.
There is absolutely no requirement that a Last Will and Testament be probated. Sometimes there are few assets in the estate that will pass through probate. For example, for real estate that is titled as joint tenants with rights of survivorship, the survivor of the joint tenants will get the property regardless of the decedent’s Last Will and Testament. Life insurance is often another asset that passes outside of probate; the beneficiary’s designation trumps any Last Will and Testament. However, probating the Last Will and Testament will clear up potential issues…especially those relating to title.
When do you need to probate a Last Will and Testament? Real property is often the reason to probate and administer an estate. For example, if someone passes away owning property as sole title holder, this is an occasion that needs to go through probate. This is because the public record is silent about who the decedent’s heirs at law are, the existence of possible creditors, or claims against the decedent.
The probate process is a means of confirming who the proper heirs at law are and give the any creditors a chance to collect on the debt while the estate is opened. Additionally, if the estate has a potential lawsuit, like wrongful death, the estate would need to be opened in order to bring the suit.
Who do you hire to probate a will?
To begin the process, you will need to hire an attorney who can help you navigate the process as they work to settle the estate. The services of a probate attorney could typically include anything from finding and inventorying any assets of the estate, to understanding and paying all necessary debts the estate may have, to distributing and settling the estate, and more.
Probate attorneys are qualified to help with the actual estate planning process, too. These attorneys generally either represent an heir at law to an estate or the personal representative of the estate.
The attorney can help assist the Executor and beneficiaries by:
- Preparing and filing all necessary court documents
- Paying all necessary debts and final bills
- Making final distributions after paying all bills and taxes
- Identifying all estate assets
- Retitling assets into the correct beneficiaries’ names
Do I need an attorney to probate a will?
Determining whether you need a probate attorney will depend on certain factors. Important things to consider are things like:
- Did the decedent have a Last Will and Testament?
- Did the decedent have a Trust?
- What is the size of the estate?
- Are there any argumentative beneficiary relationships?
- How complicated are the assets and beneficiary designations?
All these considerations will play into your decision on whether or not you need experienced and trusted help. Additionally, some courts may require an attorney to file the probate paperwork.
If the decedent had a Last Will and Testament, you will need to go through the probate process. The next logical step is to evaluate how complicated the estate is and how difficult probating the Last Will and Testament may be.
With that being said, can you go through the process without an attorney? In most courts…yes. However, while you may feel you can manage the process of probating the Last Will and Testament on your own, I highly recommend retaining an attorney to help make the process as smooth as possible for you.
How does the process work?
The probate process will involve several stages from start to finish. Here is a quick overview of each part of the process:
- The Executor of the Last Will and Testament should contact banks, insurance companies, utility providers, and any other institutions collecting payments from the deceased.
- The Executor of the Last Will and Testament will need to petition the court for the Last Will and Testament to be probated. A death notice will be advertised once the Last Will and Testament has been filed.
- The Executor of the Last Will and Testament will be issued Letters of Testamentary which allow the Executor to resolve any and all assets.
- Once all debts have been paid, the rest of the estate can then be distributed appropriately among the named beneficiaries.
The Executor of the Last Will and Testament will be expected to set up and keep any estate accounts. Estate accounts require documents confirming how the assets and money were distributed from the estate. There is a statutory requirement that the estate be opened for at least 6 months before final distribution. This 6 months start on the day the Letters of Testamentary are issued.
Probate Costs
Probate costs vary in each estate, but the most common fees you can expect to pay include the following:
- Court fees
- Filing fees
- Attorney fees
These fees and general costs revolving around the estate are expected to come out of its total value before the distributions are made to its beneficiaries.
To probate a Last Will and Testament, the probate court must have the original will and a certified copy of the deceased’s death certificate. Waivers are sent to all the heirs at law during the probate process letting them know that the Last Will and Testament is going through probate proceedings. It is always important to make sure you have listed all the heirs at law of the deceased in your Petition to Probate the Last Will and Testament.
Is there a specific time to probate an estate?
In Alabama, probate has to be filed within five years after the estate owner has passed away. If probate is not filed within the given period, Alabama law will treat the estate as intestate, meaning it will be treated as if there were no will and the distribution of all assets will follow the state’s succession law. This could result in a completely different distribution of any assets from what the deceased had intended when planning for their estate. If you do not currently have a Last Will and Testament yourself…or simply want to learn more…please read my article, “8 Reasons You Need a Will.”
Conclusion
In this article I addressed why you need to probate a Last Will and Testament. Even if someone passes without a Last Will and Testament, the estate still might need to go through probate. This might need to be done in order to clear any title issues. The above is not legal advice. Should you need advice regarding an estate, contact Chris Baldwin Law. We handle probate issues and offer free consultations. Schedule a free consultation with Chris Baldwin. Chris will walk with you every step of the way.
Schedule your free consultation today by clicking HERE or by calling (334) 863-4555.
Chris Baldwin Law
Are you dealing with the complexities of probate and estate administration? Look no further! Chris Baldwin Law is here to help.
We understand that dealing with the loss of a loved one can be difficult, and navigating the probate process can be overwhelming. That’s why we offer comprehensive probate services to guide you through every step of the way.
Our probate services include, but are not limited to:
- Assistance with locating and valuing assets
- Filing of necessary court documents
- Distribution of assets to beneficiaries
Our team is committed to providing personalized, compassionate service to each and every client. We will work closely with you to understand your unique situation and develop a tailored approach to meet your needs.
Don’t go through the probate process alone. Contact us today to schedule a free consultation and learn how we can assist you in this difficult time. Schedule your free consultation today by clicking HERE or by calling (334) 863-4555.
No representation is made that the quality of legal services is greater than those performed by other attorneys.