Baxley Maniscalco Attorneys At Law
Alabama Probate Attorneys
The process of probating a will or intestate estate in Alabama can be daunting. In opening and administering an estate, you must navigate the Probate procedure, which can be complex.
Often it isn't a do-it-yourself project. It's important to get it right, and our attorneys can help.
No matter where you are in Alabama, we'll draft and file the documents required by the Probate Court, and we'll provide legal advice throughout the process.
What Is Probate?
Probate is a court-supervised legal process that oversees the administration of a deceased person's estate.
This includes:
- Identifying and inventorying all assets: This encompasses everything the deceased owned, including real estate, bank accounts, vehicles, investments, and personal belongings.
- Paying debts and taxes: The estate is responsible for settling any outstanding debts owed by the deceased, as well as any applicable taxes, such as estate taxes.
Once debts and taxes are paid, the remaining assets are distributed according to the deceased's wishes outlined in a will or, if no will exists, according to Alabama's intestacy succession laws.
Understanding Wills and Intestacy
A will is a legal document that allows you to designate who inherits your assets after your death. Having a valid will ensures your wishes are followed and minimizes potential disputes among beneficiaries.
During probate, the court will determine the will's validity and appoint the designated personal representative (executor) to manage the estate.
If someone dies without a will, the state's intestacy laws dictate how assets are distributed. These laws follow a predetermined order, typically giving priority to spouses, children, and then other close relatives.
Intestacy can lead to unintended consequences and may not reflect the deceased's true wishes.
What Does It Mean to "Probate a Will?"
When a person dies, their will determines what happens to their property. But this isn't automatic. For the will to have any effect, it has to be taken through the legal process known as "probate."
If a person dies without a will, the laws of Alabama determine what happens to their property. Again, this isn't automatic, and their estate must still be "probated."
How Does Probate Work?
If there is a will, the will is submitted to the probate judge. After notice is given to all next-of-kin, the judge will have a hearing to determine whether the will should be admitted to probate. If there is no objection, the will is accepted, public notice issues to creditors, and letters testamentary issue to the person named by the will as Personal Representative.
This starts the six-month period in which creditors can make claims against the estate. If at the end of the six months, no claims are made, then the estate can close according to the person's wishes.
The Alabama Probate Process: A Step-by-Step Breakdown
The process begins by filing a petition with the appropriate probate court, typically in the county where the deceased resided. This petition initiates the probate process and identifies the deceased, potential heirs, and the existence (or absence) of a will.
- Appointing a Personal Representative: If a will exists, the court will appoint the individual named as the personal representative (executor) to oversee the estate administration. In the absence of a will, the court will consider factors like kinship and qualifications to designate a suitable person.
- Notice to Creditors and Heirs: The personal representative is responsible for notifying creditors and potential heirs of the probate proceedings. This ensures creditors have an opportunity to file claims against the estate and allows beneficiaries to be aware of the process.
- Inventorying the Estate: The personal representative must create a comprehensive inventory of all estate assets, including their value and location. This is crucial for accurate accounting and debt settlement.
- Debt Settlement: The estate is responsible for paying all valid debts of the deceased using estate assets. The personal representative prioritizes claims according to Alabama law and ensures all debts are settled before distributing assets to beneficiaries.
- Tax Filings: The personal representative may need to file federal and state estate tax returns on behalf of the estate, depending on the estate's total value.
- Distributing Assets: Once debts and taxes are settled, the personal representative distributes the remaining assets to beneficiaries according to the will's instructions or, in the case of intestacy, as dictated by Alabama law.
After all debts are paid, taxes are filed, and assets are distributed, the personal representative petitions the court to close the probate case.
Frequently Asked Questions About Alabama Probate, Guardianship, Adoption, & Name Changes
Now let's take a look at some of the most frequently asked questions about Alabama probate and related topics, such as guardianship, adoption, name changes, and more.
How Do I Become a Guardian of a Family Member?
Alabama has two main types of guardianship for adults: guardianship for incapacitated persons and kinship guardianship for children.
- Guardianship for Incapacitated Persons: This is for adults who cannot make their own decisions due to a disability or mental illness. You'll need to petition the probate court, provide evidence of the individual's incapacity, and nominate yourself as guardian. An attorney specializing in elder law or estate planning can guide you through this process.
- Kinship Guardianship for Children: This applies to children placed with relatives through the foster care system.
The Alabama Department of Human Resources (DHR) can provide information and resources for kinship guardianship.
What Happens if Someone Dies Without a Will?
If someone dies without a will (intestate), Alabama's intestacy laws dictate how their property is distributed. These laws prioritize spouses, children, parents, and other relatives in a specific order. An Alabama probate attorney can explain the intestacy process in detail.
What Do I Do if I Disagree With a Family Member's Will?
If you believe a will is invalid due to forgery, undue influence, or the deceased's lack of mental capacity at the time of writing, you may be able to contest the will in probate court.
Consulting with an Alabama probate attorney is crucial to understanding your options and the contesting process.
How Do I Adopt a Child?
Adoption involves establishing a legal parent-child relationship between an adult and a child who is not their biological child.
The Alabama Department of Human Resources (DHR) oversees adoption within the state and can provide information on the process and requirements.
Can I Adopt an Adult?
Yes, adult adoption is legal in Alabama. The process is generally simpler than child adoption but still requires court approval. An attorney specializing in family law can advise you on the specifics.
Do I Need to Probate a Family Member's Estate?
Probate isn't always necessary. If the estate is small (typically under a certain value set by the state), there may be simplified procedures available.
An attorney can help determine if probate is required in your specific situation.
Who Decides How Someone's Property Is Divided Up?
If there's a valid will, the will dictates how assets are distributed. If there's no will, Alabama's intestacy laws determine the distribution.
Can I Sell a Property I Inherited Without Going Through Probate?
In some cases, you may be able to sell inherited property without probate if the title is held jointly with right of survivorship or has a transfer-on-death (TOD) designation naming you as the beneficiary.
However, probate might still be necessary depending on the complexity of the estate. An attorney can advise you on the best course of action.
How Do I Change My Child's Name?
You can petition the circuit court in Alabama to change your child's name. There are specific forms and procedures involved. The court will consider factors like the child's age and the reason for the name change.
Consulting with an attorney specializing in family law is recommended.
Protect What's Yours
Alabama Probate is a process that should be done the right way, the first time, and to do so requires experienced legal representation.
That's where Baxley Maniscalco comes in. If you're ready to partner with experienced Alabama probate attorneys, contact us today to get started with a confidential consultation.