If you’ve lost a loved one, you may be looking for answers about probate court and navigating the complicated waters of estate law. Are you currently facing a long legal road settling the estate of a family member? The good news is that you don’t have to walk this road alone.
A Baldwin County probate lawyer can walk you through the process work toward a smooth estate administration process that honors your loved one’s wishes and allows you to focus on taking care of yourself while grieving.
What is probate, and how does it work in Alabama?
What Is Probate?
The term probate is commonly used to refer to a court proceeding for the administration of an estate that begins after a person dies. In Alabama, probate estate administration is overseen by county-level probate courts.
The goal of the probate process is to determine a person’s heirs either by their last will and testament or the laws of intestacy, to allow a process for creditors to be paid from a person’s estate or to determine that there are no creditors, and to settle and distribute the deceased person’s estate according to their known wishes or according to probate law in Alabama.
What to Expect During the Probate Process
There is a statutory process for estate administration that may involve the Last Will and Testament if applicable. The probate judge will appoint a personal representative of the estate—also called the “executor” or “administrator”—to conduct any business on behalf of the decedent’s estate. It’s common for a personal representative to be named in the decedent’s will, in which case the court will typically appoint that individual.
What Are the Responsibilities of the Executor?
The court provides the appointed executor with “letters testamentary” to conduct business on the estate’s behalf. The letters testamentary serve as the executor’s documentary evidence of authority from the probate court. The letters testamentary may be used by the executor to receive the deceased’s assets on behalf of the estate.
After an appointment, the personal representative may be required to complete several tasks in their role as the estate’s personal representative, including:
- Take an inventory of all the assets and the decedent’s property, possibly including appraisals on real property associated with the estate. This inventory may need to be submitted to the probate court.
- Publish notices to creditors and prospective heirs of the probate estate in the local newspaper.
- Pay any outstanding debts of the estate, including estate taxes and income taxes, out of the estate’s funds.
- If necessary, request permission from the probate court to sell assets of the estate.
- Pay probate fees, court fees, and attorney fees out of the estate’s funds.
- Distribute remaining assets and property to the estate’s proper beneficiaries.
- Go through the appropriate process to finalize the probate estate.
In some cases, there aren’t enough liquid assets to pay money owed by the estate and legal fees during the probate process. These situations would require the executor to get instructions from the court to pay the decedent’s debts and settle the estate.
Is the Personal Representative Paid for Their Services?
According to Alabama probate law, the executor of an estate is entitled to “reasonable compensation” for providing their services in settling the estate.
So, what exactly is the compensation for serving as an executor? The maximum compensation in ordinary cases is 2.5% of the value of the estate property received by the executor plus 2.5% of the value of the disbursements from the estate.
Ultimately, the court determines the amount an executor receives based on:
- The size of the estate (how long it will take and how difficult settling it will be)
- The person’s abilities and experience applicable in settling the estate
- The risk and liability the executor is taking on
- The wishes of the decedent as outlined in their will
Do All Estates Go Through Probate in Alabama?
Not all estates must go through the full probate court process in order for assets to be distributed to heirs. If an estate meets certain criteria, it’s possible for the estate to pass through a different process according to Alabama’s Small Estate Act. If this is the case, the decedent’s heirs can initiate a slightly easier estate administration process known as summary distribution. More information is available here about summary distribution.
Many states allow a deceased person’s heirs to access a small amount of money in a bank or financial institution by providing a small estate affidavit to the financial institution. However, Alabama’s law does not have any provision for a small estate affidavit. Summary distribution is the closest equivalent in Alabama to a small estate affidavit.
Is It Possible to Avoid Probate Court in Alabama?
Situations vary, but court proceedings for probating an estate can sometimes be long and costly for the heirs of the deceased individual—also called the “decedent” in estate matters. For grieving family members, even a fairly simple estate proceeding can add another layer of stress to an already difficult situation. Conversations about judges, hearings, and court are not discussions that typically put people at ease.
Also, since a court-supervised proceeding isn’t a private affair, every step in the probate process is also a matter of public record. This means heirs will have no privacy in the probate matters they’re involved in.
With all of this in mind, you may be wondering how you can help your family and other beneficiaries avoid the probate process. There are estate planning strategies and estate planning tools that can allow certain assets to pass directly to your beneficiaries without the need to put your loved ones through the probate process.
For example, assets and property that are transferred to a revocable living trust while you are alive can be placed in the control of a trustee who can pass the assets and property to a named beneficiary directly through the instructions of the trust without the need for authorization from the probate court.
Also, bank accounts, retirement accounts, and life insurance benefits that have a valid payable-on-death beneficiary are also non-probate assets.
Finally, properties and assets owned jointly with survivorship —like real estate or joint bank accounts—may pass to the surviving owner, effectively avoiding probate.
Get Help Throughout the Probate Court Process
If you’ve lost a loved one and are facing a confusing or time-consuming legal process in settling their estate, you don’t have to brave the road alone.
Contact a Baldwin County probate attorney to provide guidance through the probate process.