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Baldwin County Probate Estate Attorney – Intestate Estate Administration – What Happens to an Estate Without a Will?

What is an intestate estate?

In Alabama, when someone dies without creating or leaving a will the estate is referred to as an intestate estate. When some makes a will, they are referred to as testate. Intestate means the negative or the lack of being testate – a person not having or leaving a will.  

What is the difference between an intestate estate and a testate estate?

The process for administrating a testate and intestate estate are very different. Where the first step of a testate estate is to prove the will, an intestate estate begins directly with the petition for letters of administration. The petition for letters of administration is a request for the probate court to appoint a personal representative, the administrator, of the estate.

Instead of an executor designated under the will, the personal representative of an intestate estate is an administrator selected according to a priority in the Alabama Code. The order of priority for the right to serve as the administrator goes to 1) the widow/surviving spouse, 2) the other next of kin, 3) the largest creditor of the estate residing in Alabama, 3) any other person appointed by the probate court. Any of these persons may relinquish their right to serve as administrator.  If the widow/surviving spouse, the other next of kin, and the largest creditor of the estate, do not petition the court for letters of administration within 40 days after the death I known to them, then they are presumed to have relinquished their right to serve as the administrator.

In addition to the priority, the person wishing to serve as administrator must meet other requirements. The person must be 19 years of age or older, must not have been convicted of an “infamous crime”, and shall not be a person “who, from intemperance, improvidence or want of understanding, is incompetent to discharge the duties of the trust.” The person also must be a resident of Alabama, unless they have already been appointed as executor or administrator of the same estate in another state, territory or jurisdiction. The disqualifier I see the most is nonresidents. An otherwise qualified nonresident may serve as the executor of an estate in Alabama if they are designated under the will of the estate, but a nonresident cannot serve as the administrator of an intestate unless for some reason they are already serving as the administrator or executor in some other state, territory of jurisdiction.

The administration of an intestate estate is typically more formal and has more oversight from the probate court than a testate estate. Some estate requirements including a bond and inventory are usually legally waived by a provision in the will. The personal representative is also typically given authority take many actions on behalf of the estate, including selling property belonging to the estate, without permission from the probate court. Since there is no will in an intestate estate, the administrator is required to provide a bond to the probate court “conditioned upon faithful discharge of all duties of the trust according to law.” The administrator is also required to provide an inventory of the estate to the probate court. To sell any property belonging to the estate, the administrator must request permission from the court prior to sale.

Who Inherits When There is No Will?

In an intestate estate, without a will to designate the individuals to inherit from the estate, the heirs of an intestate estate and the share of the estate they inherit are defined by the state in the Alabama Code. Based on the surviving family members and their relation, the statute designates the individuals entitled to share in the estate and what portion of the estate they receive.

The Law Office of Brenton C. McWilliams is an Estate Planning, Elder Law and Probate Law Firm serving clients in Baldwin County including our local cities of Orange Beach, Gulf Shores, Foley, Elberta, Summerdale and Robertsdale. For a consultation please call (251) 215-9275

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