Frequently Asked Questions
Probate
What Does It Mean If Someone Dies “Intestate?”
If a person dies with a will, they are said to have died “testate.” If a person dies without a will, they are said to have died “intestate.”
What Is A “Personal Representative” of an Estate?
A personal representative is someone appointed in a will to be in charge of overseeing that the testator’s (the maker of the will’s) wishes are followed.
The personal representative’s primary functions are to:
- Collect all the assets of the estate;
- Pay debts that are due to be paid; and
- Distribute remaining assets to the appropriate heirs or beneficiaries.
A personal representative may also be referred to as an executor/executrix. An executor oversees a testate estate, while an administrator or administratrix oversees an intestate estate.
Does A Personal Representative Get Paid?
The personal representative of a testate estate is entitled to reasonable compensation for his or her services. “Reasonable compensation” may be defined in the will, or it may be determined by the court.
A personal representative may also be reimbursed for expenses and in some situations for special or extraordinary services.
Interested persons, including heirs or beneficiaries of the estate, may object to the personal representative’s compensation, in which case a hearing will be held to determine what compensation is appropriate.
Who Can Be Appointed Administrator of an Estate in Alabama?
Under Alabama law, the administrator of an intestate estate (the estate of a person who died without a will) must be one of the following people, if they are willing to serve, in this order of priority:
- Deceased person’s spouse;
- The next of kin entitled to share in the distribution of the estate;
- The largest creditor of the estate residing in Alabama;
- The county or general administrator (if in a county that has one);
- Any other person the probate court chooses to appoint.
How Long Do I Have To Open An Estate?
In Alabama you typically have five years from the date of death to offer a person’s last will and testament for probate.
It’s usually a good idea to probate a will as soon as possible to protect estate assets.
Do I Have To Probate A Will?
In general, yes. A will has no legal effect until it is “proved” by the probate court.
There may be circumstances where you decide, after careful consideration and consultation with an attorney, that a will should not be probated, but typically it’s best to offer the will for probate.
What If The Deceased Person Didn’t Really Own Anything?
A small estate may qualify for a streamlined process called “summary distribution.”
Can A Will Signed In Another State Be Probated in Alabama?
If an Alabama resident dies leaving a will that was signed in another state and met all the requirements for a valid will in that state, then generally the will can be probated in Alabama.
What Kind Of Notice Must Be Given to Creditors?
Known creditors must be given notice that an estate has been opened. The personal representative or administrator must also publish a similar notice in the local newspaper.
Giving notice to creditors is one of the personal representative’s most important duties.
How Long Do Creditors Have to File Claims Against the Estate?
In general, creditors have 6 months from the date that Letters Testamentary or Letters of Administration are issued to file claims against the estate. For this reason an estate in Alabama must remain open for at least six months.
Known or “reasonably ascertainable” creditors who are entitled to actual notice get additional time to file claims, calculated from the date of their notice.
Claims filed outside of the time limits are “forever barred” and should not be paid by the personal representative or administrator.
Claims can be disputed by the personal representative, in which case the court will decide whether the claim is valid or not.
Which Court Handles a Probate Estate?
Estates are filed with the county probate court. The estate may, however, be removed to Circuit Court in some instances.
How do you know which county’s probate court is the appropriate place to open the estate? Typically, you should open the estate in the county in which the deceased person lived at the time of his death. However, the estate may be opened somewhere else if, for example, most of the property the person owned is located in another county.
When Is Probate “Over”?/When Can the Estate Be Closed?
An estate may be settled any time after 6 months from the grant of letters testamentary or letters of administration if all the debts are paid. “Settling” the estate means paying any leftover assets to the appropriate beneficiaries or heirs. In many instances an estate can be settled by consent and without a hearing. Once the estate is settled an order will be entered by the probate court closing the estate and relieving the personal representative or administrator of further responsibility.
Can I Probate An Estate Without A Lawyer?
It’s a good idea to work with a lawyer when probating a will or administering an intestate estate. Probate courts cannot give you legal advice, so without a lawyer you won’t have any real guidance. A probate attorney can take much of the work off your plate so that you can focus on more important things, like spending time with family and friends as you grieve the loss of your loved one.
How Can Lewis, Lewis & Falkner Help Me Through the Probate Process in Alabama?
The attorneys of Lewis, Lewis & Falkner are experienced in probating wills and administering intestate estates. We work efficiently to guide you through the probate process, preparing necessary paperwork, helping you obtain a surety bond if necessary, giving notice to creditors, protecting and dividing estate assets, and settling the estate.
If your loved one has passed away and you need help with their estate, give us a call at 205-553-5353 to discuss your options.
