Probate is a court supervised process of administering the estate of a deceased pursuant to the deceased’s instructions or in the absence of a will, the laws of the State of Alabama. It includes payment of any and all encumbrances, claims and debts of the deceased and distribution of the assets of the deceased to those who are entitled to them.
The first two questions a Fairhope estate planning attorney is likely to ask you before commencing this proceeding are the deceased’s resident county and whether the deceased had a will.
If the Deceased had a Will
In the event the deceased had a last will and testament, the probate lawyer will review the will to ensure that it was duly executed by the deceased and that it follows all the formalities required by State law. Also, if an original of the last will and testament is not available, the probate attorney will make arrangements to prove a copy of said will in accordance with the laws of the State of Alabama. Next, the estate attorney will draft and prepare the documents required to be filed in the appropriate Probate Court. These documents include a petition for probate of will and issuance of letters testamentary, consents, waivers, and list and addresses of all heirs. The estate lawyer will then file these documents along with an original death certificate of the deceased, last will and testament of the deceased and the appropriate Probate Court fees. Depending on whether all heirs of the estate of the deceased consent to the opening of the estate and issuance of letters testamentary as per the deceased’s instructions, there may or may not be a hearing before which an estate can be opened and letters testamentary be issued. Once the Probate Court issues an order granting the petition to probate will and issues letters testamentary, the estate of the deceased is considered “open” and this completes the first phase of the probate process.
The will of the deceased typically lists the name of a person that is to be appointed “executor” to take care of the final affairs of the deceased. In most cases, when the Probate Court issues letters testamentary, these letters are issued in the name of such person mentioned in the deceased’s will.
The second phase of the probate process is referred to as the administration of the estate and this is where the bulk of the work is done. The tasks to be accomplished in this phase include creditor notification, payment of taxes, preparing inventory and accounting. In Alabama, any and all estates must remain open for a minimum time period of six months and the primary intent behind this law is to ensure that all creditors, whether known or unknown, are provided with an opportunity to present their claims against the deceased’s estate. Once such a claim is presented, the probate attorney will review the claim and decide whether to contest it or advise that such claim should be paid. Next, all taxes of the deceased must be paid. This includes taxes pertaining to any income earned by the deceased prior to his or her death but after the filing of the deceased’s most recent tax return, taxes relating to any income earned by the estate of the deceased and finally whether federal estate tax and gift tax returns are required to be filed. Perhaps the most tedious task in this phase is preparing and maintaining an inventory and accounting of all assets of the estate and of all funds entering and exiting the estate. This second phase can be made more complicated with property that must be sold during probate, will contests, contests regarding who should administer the estate, contests regarding improper administration, breach of fiduciary duties and other tax issues. If you anticipate any of these issues or are experiencing any of these disputes, it is imperative that you make the probate attorney aware of such as soon as possible.
The third and final phase of the probate process is called closing of the estate. The probate attorney drafts and files a petition to close the estate and along with that petition provides relevant consents and waivers. Depending on whether all heirs consent to the closing of the estate, there may or may not be a hearing. If a hearing is conducted by the Probate Court, the probate attorney attends such hearing and obtains an order to take the final steps necessary to close the estate and discharge the executor from his or her duties. The final steps to close the estate include payment of all expenses incurred during the administration of the estate and distributing the assets to the beneficiaries or heirs of the deceased in accordance with the deceased’s instructions in the will.
If the Deceased did not have a Will
If the deceased did not have a last will and testament then the probate process is longer and expensive. While the three main phases are similar, a probate attorney drafts and files a petition for letters of administration wherein the attorney must evaluate and list the aggregate dollar value of the personal property of the deceased. Further, the Court appoints an “administrator” in place of an executor and such administrator must file a bond and provide an inventory to the Court. Also, while there is a possibility of a hearing to open and close an estate where a will is filed, in an intestate estate, i.e. estate where there is no will, there is always a hearing to open said estate and a hearing to close such estate. Accordingly, the Probate Court charges additional fees for each of said hearings.
The estate planning attorneys at Caldwell Wenzel & Asthana, PC have opened, administered and closed numerous estates throughout Foley, Daphne, Spanish Fort, and Fairhope. Our estate lawyers pride themselves in their diligence and responsiveness when comes to probate. We are very quick to open estates, provide guidance and legal advice in all steps of administering and closing an estate. If you are the named personal representative in a loved one’s will or if your loved one died without a will and you need legal assistance with probate, please call us for a free consultation.