Probating Estates/Wills & Administrations

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Frequently Asked Questions                     Last Will and Testament photo

What is a will? 
A will is a document that provides the manner in which a person’s property will be distributed when he dies. A person who dies after writing a will is said to have died testate. If someone dies without writing a will, they have died intestate.

Who may make a will?
In Alabama, the maker of a will must be at Least 18 years old of sound mind; and free from improper influences by other people.

How do I make a will?
A will must meet certain requirements set by the state to be considered valid. In Alabama, the following requirements must be met:

  1. The will must be written.
  2. The will must be signed by the maker.
  3. The will must be witnessed by two people in the manner required by law.

May I dispose of my property in any way I desire by making a will?                                 

Almost, but not quite. There are some limitations set by law to avoid placing hardships on the people who survive the deceased. For example, a married person cannot completely exclude the other spouse from sharing in the estate. A lawyer can best explain all of the limitations.

How do I know if I need to write a will?
Any amount of property that you own constitutes your estate. Generally, the size of your estate and your family circumstances determine whether you need a will. An estate does not have to be any particular size to justify a will. If you have young children, or property that you would like to assure will be given to certain people, then you should consider writing a will.

When do I need to write a will?
A will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision.

Who may draft a will?
There is no requirement that people consult a lawyer before drafting their own wills. However, the proper drafting of a will can be a delicate operation, and it is best to consult someone who has experience. A lawyer can make sure that your will is legal, and that your property will be given to the people that you intended. A lawyer can also help construct a will so that your family saves money in administering the estate, and reduce their taxes.

Is a will expensive?
A lawyer will usually charge for a will according to the time spent in preparing the will. If you have a small estate and a simple plan for distributing your property, then your will should cost less than one for a large, complex estate with several people receiving property.

May a will be changed once it is written?
A person may change his will as often as he desires. However, the changes must meet the same requirements listed above for the original will. No change should be made without first consulting the person who drafted the will.

How long is my will “good”?
A properly written and executed will is “good” until it is changed or revoked. Writing a second will usually revokes the first will. However, if there is a change in your estate or your family makeup, you may consider changing your existing will or writing a new will. For example, if you sell your house you may need to change your will to reflect the change in your estate.

What should I do with my will once it is written?
Once you have written your will, you should keep it in a safe place, such as a safety deposit box at the bank. You should also let your family know where the will is so they can find it when you die.

Probate of wills

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. It is the Probate Judge’s responsibility to make sure that all of the laws in Alabama regarding the distribution of estates are followed.

Who should probate a will?
Upon the person’s death, anyone named in the will either as personal representative of 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.

Where should a will be probated?
Generally, wills must be filed for probate in the county where the deceased lived.

When must a will be filed for probate?
To be effective, a will must be filed for probate within five years to the date of the testator’s death.

Do I have to have a lawyer?
The complexity of handling estates normally necessitate having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.

Do I need to probate the will? 
Yes, the will must be probated to have legal effect. Before deciding not to probate a will one should consult an attorney.

Intestate Succession

What happens to my property if I do not write a will?
If someone dies without writing a will, they have died intestate. Each state has specific laws governing the distribution of property when a person dies intestate, and most laws are generally the same. The laws of Alabama are shown below, but you should remember that these laws might not apply if the deceased was not a resident of Alabama, of if the property is located in another state.

In this list, “issue” means all of the people who have descended from the decedent. This included children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.

Property going to the surviving spouse:

  • Entire estate if no surviving issue or parents of decedent;
  • First $100,000, plus 1/2 of balance of estate if there is no surviving issue but if there is surviving parents; First $50,000, plus 1/2 of balance of estate if there are surviving issue all of whom are also issue of surviving spouse; or 1/2 of estate if there are surviving issue who are not issue of the surviving spouse.

Property not going to surviving spouse:
If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority:

  • All of the property passes to the issue, unless there are none.
  • If none, all passes to the parents.
  • If neither parent is living, the estate passes to siblings, and so on under this priority:
  1. Issue
  2. Parents
  3. Brothers and sisters
  4. Grandparents
  5. Aunts and uncles
  6. Cousins

Administration of an Intestate Estate

Steps for probating an estate:

  1. Petition filed
  2. Take immediate control of the estate
  3. Inventory of the estate within 2 months
  4. Bond, payable to the Probate Judge
  5. Notice will be given to all heirs
  6. Letters of Administration granted
  7. 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
  8. Claims must be filed generally within 6 months
  9. Generally, the estate cannot be divided until all claims and expenses have been paid which is at least 6 months
  10. Court must approve attorney’s fees

This information, which is based on Alabama law, is to inform and not to advise.  No person should ever apply or interpret any law without the aid of a lawyer who analyzes the facts, because the facts may change the application of the law.

1990 Prepared by the Alabama Law Institute For Alabama Probate Judges’ Association

Summary Distribution
A process for administering the assets of a decedent that total $28,024 or less – legal counsel should be sought to determine if the Small Estate/Summary Distribution is applicable in your situation.

Due to the complexity of laws and procedures of the Probate Court, we strongly suggest that you seek the advice of a licensed attorney.  The Probate Judge, Chief Clerk and Staff of the Probate Court are prohibited by law to offer any legal advice.