Probating Decedent Estates


Testamentary Estates

Probating a Will is the legal process of proving in the Probate Court that a Will is the decedent's valid Last Will and Testament, and appointing an Executor of the estate. Probate is the only process through which an Executor can acquire the legal authority to gather the decedent's assets and distribute them according to the terms of the Will. The Probate Court also provides an opportunity for creditors of the decedent to present claims against the estate.

The testator must sign his/her original Will in the presence of two witnesses. Notarized Wills that follow the requirements of the statute are self-proving, meaning that the affidavit relieves the witnesses from having to go to the Probate Court and testify under oath that the testator was of sound mind and that they did witness the testator signing the Will. If a Will is not self-proving, the witnesses must appear before the Probate Judge or Probate Clerk to testify to these facts. The Alabama Code provides that the Will may be probated in the county where the decedent was domiciled, or in the county designated in the Will, provided that the decedent had assets in such that county.

 The Probate process begins with the filing a Petition for Probate by the named executor of the estate, along with signed Waivers of Notice from next of kin, a death certificate, and a bond, if applicable. Notice of the case will then be served on all beneficiaries of the estate and to all known creditors via mail and to unknown creditors via publication. The executor will also need to file an inventory of the estate if it is required by the Will.

 Creditors have six months from the date the Court admitted the Will to Probate to file a claim in the case. Allowed creditor claims will have priority of payment over distribution to any listed beneficiary of the Will. After six months and once all claims are paid in full, the estate is eligible for final distribution of remaining property to any beneficiaries. Next, the Executor will file a file a report with the court and seek permission to close the estate. After the Probate Court signs an order approving final settlement and closing the estate, the case is over.

Intestate Estates

Probating an intestate estate (where the decedent did not have a Will) is similar in many ways to probating a testamentary estate – both cases involve filing a petition with the Probate Court and the appointment of a personal representative. Generally, the decedent’s surviving spouse and then next of kin have first and second rights, respectively, to petition the Probate Court for Letters of Administration.

Under Alabama law, the personal representative will need to post a surety bond in favor of the Probate Judge for an amount equal to or in excess of all the personal property owned by the estate. The personal representative also must give notice of their appointment to all creditors and potential beneficiaries of the estate. Personal representatives are also required to prepare and file an inventory within two months or their appointment, and annually thereafter, of all property in the personal representative’s control.

Unlike a case involving a Will, where the testator controls the disposition of their property, in a case with no Will, the Alabama’s intestate statute will dictate how a decedent’s property will be disbursed to the beneficiaries, after satisfying all creditor claims.

The personal representative has general authority, without court approval, to:

Collect and retain assets;

Perform contracts;

Abandon valueless personal property;

Pay taxes and related expenses;

Employ attorneys, auditors, auctioneers, accountants, and other professionals;

Prosecute and defendant claims on behalf of the estate;

Operate an existing business; and

Other related, limited acts.

The personal representative, with prior court authorization, may enter into long-term leases, sell real property, and pay compensation to the personal representative.

Similar to a testamentary estate, after the personal representative has collected all assets of the estate and paid all claims in order of priority along with other fees and expenses, all remaining property may be distributed to the estate’s beneficiaries. The estate is then eligible for final settlement and, following a hearing, if needed, may be closed, completing the intestate administration process.

Alabama Small Estates Act

The Alabama Code allows decedent estates with few assets to expedite the probate process through filing a petition for a small estate case. The Alabama Code defines a small estate as one whose assets do not exceed $25,000.00 in 2009 dollars (this amount will be adjusted for inflation every year). Alabama Small Estate Act ("ASEA") cases also cannot hold title to real property even if that real property is worth less than the maximum asset amount.

The benefits of administering an estate under ASEA are that the process is simplified, the court does not appoint a personal representative, no bond is required, and the six-month claims period does not apply. Again, however, only certain small estates will qualify for probating pursuant to the ASEA.

Upon filing a verified petition for summary distribution of a small estate, the court will require publishing notice of the petition. Thirty days after this publication, the estate may file a request for distribution of the small estate, along with consents to distribution. Thereafter, creditors will first be paid, following by beneficiaries, and then the case may be closed.

Start to finish, small estate cases can take less than two months complete, saving both time and money for the estate.