So you’re in charge of handling the affairs of a deceased relative or friend. If you’ve started to look into your responsibilities, you have probably encountered a handful of unfamiliar terms and concepts. You may be confused about what to do next. While this brief guide is no substitute for legal advice from an Alabama probate attorney, we hope it will help you get your bearings and come up with a plan.
A Few Definitions
- Personal Representative - A person or institution appointed by the probate court to act on behalf of the estate of a decedent.
- Decedent – The deceased person.
- Probate – Court-supervised process whereby the decedent’s assets are collected, all obligations are paid, and the balance of the decedent’s assets are distributed to the beneficiaries. If the decedent left a valid will, the assets are ultimately distributed in accordance with the will. If not, the assets are distributed in accordance with Alabama laws known as laws of intestacy. Probate requires the appointment of a personal representative to act on behalf of the estate.
- Find out whether there is a will. The existence of a valid will can control the most important aspects of Alabama probate. Who should serve as personal representative? Is bond required? Who will ultimately receive the decedent’s assets? These questions are usually answered by the will.
- Obtain several copies of the decedent’s death certificate. Regardless of whether probate is necessary, the death certificate will likely be needed to sort out the decedent’s affairs. It is prudent to have several certified death certificates on hand. You can get them through the department of vital records or sometimes through a third party service like VitalCheck.com.
- Inventory the decedent’s assets. Almost all decisions involved in probate are affected by the assets owned by the decedent. If the decedent didn’t own any assets in Alabama, chances are that Alabama probate will not be required. If the decedent did own Alabama assets, the nature and value of those assets will determine whether probate is required or whether an alternative to probate may be feasible. Assets to look for include real estate, cash, bank or financial accounts, stocks, bonds, business interests, life insurance policies, household collectibles.
- Safeguard the decedent’s assets. If you have keys to the decedent’s home, be sure that his or her assets are properly secured. In some cases, you will want to be sure that insurance is maintained. If utilities are necessary to safeguard the estate assets, be sure they are on. If not, turn them off so that you don’t run up unnecessary bills.
- Determine whether any of the decedent’s assets pass “outside of probate.” Certain assets are “non-probate,” meaning that they pass to the beneficiaries without any need for a probate proceeding. Jointly held assets, accounts with beneficiary designations, and other transfer-on-death arrangements can often pass outside of probate. In most cases, life insurance will also pass outside of probate. So you should make a list of all assets owned by the decedent and specify how each asset is owned and whether there is a probate asset.
- Make a list of interested parties. “Interested parties” include the heirs named in the will, the family of the decedent, and the creditors of the estate. To the extent possible, you should ascertain the names, addresses, telephone numbers, and any other relevant information regarding each interested party.
- Hire an Alabama probate attorney. The importance of choosing a qualified Alabama attorney cannot be overstated. A good Alabama probate attorney can help you determine whether probate is required and explore any alternatives to probate. If probate is required, the attorney will instruct and advise you regarding your duties as personal representative and prepare the pleadings and other legal paperwork necessary to move the estate through the court system. Look for an attorney that specializes in probate and/or estate planning law.
After Appointment as Personal Representative
- General Overview. If you are named as personal representative, it is important that you understand the role of an Alabama personal representative. You have three essential duties: (1) collect the decedent’s assets; (2) pay all the decedent’s legal obligations; and (3) distribute the remaining assets to the beneficiaries. As the Mobile, Alabama, probate court has noted, “this three-step process seems simple, in reality these tasks can be highly complex, time consuming, and in some cases technically demanding.” It is important to recognize that, as personal representative, you are carrying out these tasks for the creditors and the beneficiaries of the estate and not for you personally. Don’t treat the decedent’s assets as though they were your own.
- Collect the decedent’s assets. Once you open the Alabama estate, you need to collect and take possession of all of the Probate Assets of the decedent. You should consult with the Alabama probate attorney about which assets are probate assets and whether any exceptions apply to your duty to take control of the assets. You will need to provide the court with an inventory of the decedent’s assets.
- Pay all of the decedent’s obligations. Paying the decedent's obligations is one of the most important facets of Alabama estate administration. You will be required to go through a creditor notification process designed to put all creditors on notice of the estate proceeding. This is done by sending written notice to all known creditors and publish notice to unknown creditors (in some counties, the court will arrange for the publication and you will pay for it). This is an important part of the probate process, and you should consult with the Alabama probate attorney regarding any questions you have. Once the claims have all been filed, you will need to evaluate them. Consult with your attorney before paying any claims. There are also some exemptions to consider, such as the Alabama homestead exemption.
- Close the estate and distribute assets to the proper beneficiaries. Once the estate has been fully administered, it will be time for the attorney to prepare the documents to close the Alabama estate. An accounting of all expenses and income of the estate is often required. The court will then issue an order closing the estate, which will direct the personal representative to pay all expenses of administration and distribute any remaining assets to the beneficiaries (settlement of the estate). It is important to determine who the correct beneficiaries of the estate are. If the decedent left a valid will, the assets will generally be distributed to the beneficiaries named in the will. If not, the assets are distributed in accordance with Alabama laws known as laws of intestacy. Spousal rights (the Alabama elective share) may also affect the ultimate distribution of estate assets.
This Alabama Probate Guide is intended as a general overview. Because estates vary in size and complexity, a brief guide cannot adequately address your responsibilities as personal representative or advise you about your specific situation. Contact an Alabama probate attorney for further information.