Probate Proceedings

The term “probate” is derived from the Latin term meaning “to prove the will”. Probate refers to the process by which a court oversees the administration of a deceased person’s estate. The purpose of the probate process is to ensure that any final debts, taxes, and expenses are paid, and the remaining assets are distributed to the beneficiaries named in a will, or if there is no will, in accordance with Alabama’s laws governing intestate succession. A will must be probated in order to have legal effect.

Initiating Probate

Upon a person’s death, anyone named in the will as the personal representative of the estate, any person receiving property under the will or having a financial interest in the estate, or the person having possession of the will, may have the will proved before the proper probate court. Under Alabama law, the person in possession of the will must deliver the will to the probate court or to the person who is to have the will probated. A will must be filed for probate within five years from the date of the testator’s death. Wills are generally filed in the county where the deceased person lived, but under some circumstances may be filed in the county where the deceased owned property.

Probate Process

The probate process will differ depending on whether the decedent left a will or died intestate. If the decedent left a will, the will may relieve the executor from the obligation of making a bond, filing an inventory, and having an appraisal made of all of the property. The steps for the administration of an intestate estate are as follows:

• Petition is filed, and the personal representative takes immediate control of the estate
• Inventory of the estate is filed within two months
• Bond is made payable to the probate judge
• Notice is given to all heirs
• Letters of Administration are granted
• Notice to file claims must be published once a week for three weeks and individual notice must be given to known creditors of the deceased
• Claims against the estate must generally be filed within six months (generally, the estate cannot be divided and distributed until all claims and expenses have been paid)
• Court must approve all attorney’s fees

The nature and complexity of probate administration necessitate the assistance of an experienced probate attorney. Probate judges are not permitted to advise you of the law or assist you with the probate process.

Conservatorships

A conservator is a person appointed by the court to manage an incapacitated person’s (the “conservatee’s”) estate. A person may be declared incapacitated by the probate court due to dementia; mental infirmities resulting from an accident, injury, or illness; or if they are under the age of 19. A minor child may need a conservator because in Alabama, in many instances even a parent does not have the legal authority to manage the money or assets of their children. The conservator is responsible for making financial decisions for the conservatee, including but not limited to: payment of bills, taxes and expenses; making investment decisions; the sale, purchase, or rental of property; and the execution of contracts and agreements.

Guardianships

A guardian is a person who is appointed by the probate court to manage and handle the health care, welfare, and lifestyle decisions of a minor or incapacitated adult. Similar to a conservatorship, a person may be declared incapacitated by the probate court due to dementia; mental infirmities resulting from an accident, injury, or illness; or if they are under the age of 19. A guardian for a minor is usually not necessary when there is a living and custodial parent because parents have the legal authority to make health, welfare and lifestyle decisions for their children.

If a guardian for a minor is required, the court can appoint any person whose appointment would be in the best interest of the minor. The court can appoint a person nominated by the minor, if the minor is over the age of 14, assuming the nominated person is not contrary to the minor’s best interest. The court can also appoint a person nominated in the will of the parent, or other written document signed by the parent and witnessed by at least two persons.

Probate, Trust, and Estate Litigation

Probate, trust, and estate litigation matters are often contentious and emotionally charged, pitting one family member against another. Disputes may arise over perceived inequities over the division of an estate, the construction and validity of an estate planning document, or over allegations of fraud, coercion, or undue influence. Disagreements are also common between beneficiaries of a trust or estate and a fiduciary. Family members may disagree over who should act as the fiduciary, or the beneficiaries may be concerned about financial decisions or investments made by the fiduciary, or other property management issues. Probate litigation matters are complex and require experienced legal representation.

Probate Proceedings Require Experienced Counsel

Serving as the personal representative of a decedent’s estate or as a conservator or guardian involves many fiduciary duties and responsibilities. Seek the guidance and representation of an experienced Alabama probate attorney. Contact The Hawkins Law Firm for a consultation.