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:

1. A “Petition” is filed
2. Inventory of the estate within 2 months, unless waived by Will
3. 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.
4. Notice must be given to all heirs to open (Generally, in probate of a Will only)
5. Letters of Testamentary/Administration granted
6. 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 the deceased
7. Claims against the Estate must be filed generally within 6 months
8. 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
9. 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:

1. retain assets of the Estate
2. receive assets due to the Estate
3. perform deceased's contracts
4. satisfy written charitable pledges of decedent
5. deposit Estate funds in financial institutions
6. abandon valueless personal property of Estate
7. allocate expenses to income of the Estate
8. pay assessments of the Estate
9. hold securities already owned by the Estate
10. insure assets of the Estate
11. borrow to protect the Estate
12. settle with debtors of the Estate
13. settle claims against the Estate
14. pay taxes and expenses of the Estate
15. sell or exercise stock options
16. enter leases up to one year
17. vote stocks
18. employ attorneys, auditors to assist with Estate issues
19. prosecute or defend claims against or of the Estate
20. continue unincorporated businesses
21. incorporate the businesses
22. limit liability These Personal Representative actions would generally require prior court authorization for the personal representative to:
    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.

IN SUMMARY

• 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 Personal Representative
• 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