The term “probate” is generally used to describe the process of collecting and distributing a person’s assets after their death, although the probate judge has a number of other responsibilities as well.
When a person dies with a valid last will and testament, the will is “offered” to the probate judge. Notice is sent to the decedent’s nearest relatives, and notice of the petition is published in the local newspaper. Once the will has been offered to probate, the parties must wait at least 6 months before they can close the estate. This is to allow any creditors who the decedent owed money the opportunity to file claims against the estate.
After six months, the probate court will grant “Letters Testamentary” to the Personal Representative named in the will. Traditionally, the personal represented was called the “Executor.” The letters testamentary are the court’s official document granting the executor the authority to administer the estate.
During estate administration, the personal representative distributes the assets according to the terms of the last will and testament. This process can take a few days for a simple estate, or a few years for a complicated estate. Of course, any legal disputes brought by the heirs will generally delay matters as well.
On average, the entire probate process takes somewhere between six months and a year, and generally requires the involvement of a lawyer.
The rule of thumb is that if the decedent left a will, then probate is required. The first to die of a married couple may not have to probate their spouse’s estate, depending upon how they held title to their assets. In those cases, probate may sometimes be delayed until the death of the surviving spouse. Any attorney experienced in this area can generally tell you fairly quickly whether that is the case.
It is not uncommon for a family to neglect to probate a loved one’s estate for a very long period of time. One way in which families often learn of the need to probate an estate is when it comes time to sell a piece of real estate that was owned by the decedent. In such cases families are shocked to learn that they will have to probate the estate before the property can be sold. This is particularly problematic where a buyer has been lined up before the problem is discovered, only to learn that closing will be delayed by six months or more.
In a word, yes. A proper estate plan can permit you to avoid the probate process if you wish. One way to avoid probate is through the use of a will substitute called a revocable living trust.
A revocable living trust is essentially an asset management tool that permits you to manage virtually all of your property under the umbrella of the trust. Properly drafted it will not affect your tax filing status (or require a separate tax return during your life) but can provide certain benefits to you during life, and to your family after your death.
Probating an estate is not the kind of project you want to take on yourself. You will quickly discover that the staff at the courthouse is not able to provide you with legal advice regarding how to handle the estate. For simple estates, the cost of hiring an Alabama probate attorney is very reasonable.
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