WHAT DOES PROBATE OF A WILL MEAN?
Probate of a Will is the Administration of an Estate to insure that all
of the property is disposed of properly and according to the terms of
the Will and State law. It is the Probate Court that makes sure that all
of the laws in Alabama regarding the distribution of Estates are
followed and the rights of the parties, that is, those persons with a
legal interest in the Estate, are protected. Persons considered
“Parties” are generally those named in the Will and those not named
in the Will who would inherit under the law if there were no Will.
WHO SHOULD PROBATE A WILL?
Upon the person's death, anyone named in the Will either as personal
representative or as a recipient of property, or any other person with a
financial interest in the Estate, or the person who has possession of
the Will, may have the Will proved before the proper probate court. Any
person in possession of the Will must, by Alabama law, deliver the Will
to the Probate Court or to a person who is able to have the Will
probated. A person in possession of the Will can be required to produce
it by a court.
WHERE SHOULD A WILL BE PROBATED?
Generally, Wills must be filed for probate in the county where the
deceased last lived.
WHEN MUST A WILL BE FILED FOR PROBATE?
Generally, to be effective, a Will must be filed for probate within five
years of the date of the testator's death. A Will should be probated
as soon as is practicable to protect the assets of the Estate.
DO I HAVE TO HAVE AN ATTORNEY?
Generally, the complexity of handling Estates and their administration,
normally necessitate having an attorney since the Probate Judge cannot
advise you of the law and generally will not provide you with forms. In
addition, many issues beyond the simple format of the forms must be
considered and understood and you should consult an Attorney experienced
in the probate process.
DO I NEED TO PROBATE THE WILL?
Generally, yes, the Will must be probated to have legal effect. Any
decision to possibly not probate a Will should only be made upon
consulting an attorney.
GENERAL STEPS IN PROBATE OF AN ESTATE:
- A “Petition” is filed
- Inventory of the estate within 2 months, unless waived by Will
- Bond, equal to the aggregate capital value of the property of the
estate, plus one year's estimated income from the estate, unless
waived by Will.
- Notice must be given to all heirs to open (Generally, in probate
of a Will only)
- Letters of Testamentary/Administration granted
- Notice to file claims must be published once a week for 3 weeks
and individual notice given to anyone known to have a claim against
- Claims against the Estate must be filed generally within 6 months
- Generally the Estate cannot be distributed to heirs until all
claims and expenses have been paid and the claims period runs, which
is at least 6 months
- Court must approve Final Settlement, unless all heirs are
competent and consent.
WHAT ARE THE POWERS AND DUTIES OF A PERSONAL REPRESENTATIVE?
A personal representative, also known as a Executor if a male appointed
under a Will, or a Executrix, if a female appointed, under a Will, or
Adminstrator if a male appointed by the Court where no Will exists or
Administratrix, if a female, has some of these powers and duties, and
they vary depending on whether a Will is probated or if it is an
Administration, and state law. Some of these actions will require prior
court approval, and even where not required, it may be prudent for a
Personal Representative to obtain court approval in many situations even
if the Personal Representative could act without such court approval.
The court may also limit the powers of a personal representative. The
Personal Representative may generally:
- retain assets of the Estate
- receive assets due to the Estate
- perform deceased's contracts
- satisfy written charitable pledges of decedent
- deposit Estate funds in financial institutions
- abandon valueless personal property of Estate
- allocate expenses to income of the Estate
- pay assessments of the Estate
- hold securities already owned by the Estate
- insure assets of the Estate
- borrow to protect the Estate
- settle with debtors of the Estate
- settle claims against the Estate
- pay taxes and expenses of the Estate
- sell or exercise stock options
- enter leases up to one year
- vote stocks
- employ attorneys, auditors to assist with Estate issues
- prosecute or defend claims against or of the Estate
- continue unincorporated businesses
- incorporate the businesses
- limit liability These Personal Representative actions would
generally require prior court authorization for the personal
a. abandon an estate asset
b. make repairs or demolish improvements
c. subdivide, transfer land
d. enter into leases greater than one year
e. enter mineral leases
f. sell real estate
g. pay compensation of personal representatives
CAN A WILL SIGNED WHILE LIVING IN ANOTHER STATE BE ENTERED INTO
PROBATE IN ALABAMA? IN OTHER WORDS, IS A WILL PROPERLY SIGNED
AND EXECUTED IN ONE STATE GOOD IN ALABAMA?
Generally, as long as a Will met the legal requirements established
by that State's law for being a valid Will, it can be probated in
Alabama if the person was last a resident of Alabama at their death.
HOW WE CAN HELP
At Harville-Stein Law Offices, we are experienced in probating, that
is opening, estates where a family member has died in Alabama with a
Will, known as dying Testate, and the securing of Letters
Testamentary for a probate Estate. We draft Wills, so we are
familiar with the language of a Will and what it requires to
accomplish your specific goals. In some cases, a Will may waive an
inventory and/or bond, in some cases it does not. You need
someone familiar with this process to assist you, whether you reside
in Alabama or some other state. In any county in Alabama, including
Jefferson County, Shelby County, Talladega County, St. Clair County,
the Birmingham and Bessemer areas, with the Will, we can open the
Testate Probate Estate for you. In certain circumstances, you
will not have a family member who is available or qualifies to serve
as the Personal Representative or Executor/Executrix of the Estate
and we can evaluate our ability to serve as both the attorney for
the Estate and the personal representative, if you desire. We are
able to obtain bond, a requirement for some Testate Estate Personal
Representatives. We are experienced in obtaining appraisals of
real property and personal property and in their sale, so that the
funds can be divided between the rightful heirs. In other
cases, it may be the heirs' desire to place the home or other land
in the names of the heirs in their respective ownership percentage.
We can review all these options with you.
We have administered Testate Estates, that is, one where a Will
exists and is entered in probate
We have and can serve as the Attorney for the Estate and the
We can obtain bond, a requirement for the Personal
Representative to open some Testate Estates
We are experienced in the valuation and sale of homes, cars and
other personal property
We work efficiently through the Probate process