Estate Administration /Probate

Losing a loved one is difficult. Family members who are already grieving, often need to confront the process of dealing with the assets of the lost family member. Then there are creditors that have to be paid (or avoided). Not all creditors are entitled to payment, but under Alabama law, certain procedures must be followed, and if they are not correctly followed, the personal representative can be held liable. If the correct procedure is followed, the personal representative and family members will be protected. There are several options available for transferring assets after death. For example, in some instances, if the total value of the assets are below a certain threshold, the estate may qualify for expedited treatment, thereby avoiding the 6-month waiting period. The estate administration process is also dependent on whether the individual died with a will ("testate") or without a will ("intestate").  Other times, the estate administration process can be avoided completely and assets may be transferred by other means.

 The Law Office of Neil C. Johnston, Jr. regularly represents family members in the administration of estates in Mobile County, Baldwin County, and Washington County. I work with and guide the personal representative through the probate process, both intestate administration and testate administration, to ensure that all of the steps are correctly followed.  Call my cell at (251) 709-8251 if you have any questions or would like to set up an appointment.

Estate Administration

THIS INFORMATION PAGE, WHICH IS BASED ON ALABAMA LAW, IS TO INFORM AND NOT TO ADVISE. NO PERSON SHOULD EVER APPLY OR INTERPRET ANY LAW WITHOUT THE AID OF A LAWYER WHO ANALYZES THE FACTS, BECAUSE THE FACTS MAY CHANGE THE APPLICATION OF THE LAW.

Testator - the person making a will and controlling disposition of his/her assets

Heir - Those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of the decedent. 

Decedent - the person who has died. (also called the "deceased")

Personal Representative - the person who handles the administration of the estate. It includes the "Executor" -which is what they call the personal representative when a will is involved. When a will is not involved, then the personal representative is often referred to as the "Administrator." 

Guardian - the person appointed to care for minor children (or incapacitated persons) and is often named as a “Conservator” when needed

Conservator - the person appointed to manage the property and assets of minor children (or incapacitated persons) and is often named as “Guardian” of the person(s) in need of care.

Intestate - means that the person died without a will

Testate - means the person died with a will. 

FAQ's - INTESTATE

WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL? If someone dies without writing a will, they have died "intestate." Each state has specific laws governing the distribution of property when a person dies intestate, and most laws are generally the same. The laws of Alabama are discussed below, but you should remember that these laws may not apply if the deceased was not a resident of Alabama, or if the property is located in another state. In this list, "issue" means all of the people who have descended from the decedent. This includes children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.

PROPERTY GOING TO THE SURVIVING SPOUSE: a. entire estate if no surviving issue or parents of decedent; b. first $100,000, plus 1/2 of balance of estate if there is no surviving issue but there is surviving parent(s)  c. first $50,000, plus 1/2 of balance of estate if there are surviving issue all of whom are also issue of surviving spouse; or  d. 1/2 of estate if there are surviving issue who are not issue of the surviving spouse

PROPERTY NOT GOING TO SURVIVING SPOUSE: If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority: All of the property passes to the issue, unless there are none. If none, all passes to the parents. If neither parent is living, the estate passes to siblings, and so on, according to Alabama law. s

STEPS IN PROBATE OF AN INTESTATE ESTATE:

1.     Petition filed ; 2.     Take immediate control of the estate; 3.     Inventory of the estate within 45 days ; 4.     Bond, equal to the aggregate capital value of the personal property of the estate, plus one year's estimated income from the estate ; 5.     Notice (as may be required) ; 6.     Letters of Administration granted  7.     Notice to file claims must be published once a week for 3 weeks and individual notice given to anyone known to have a claim against the deceased ; 8.     Claims must be filed generally within 6 months ; 9.     Generally the estate cannot be divided until all claims and expenses have been paid which is at least six months ; 10.  Probate Court must approve personal representative's fees (unless all interested persons agree and consent)

WHAT ARE THE POWERS AND DUTIES OF A PERSONAL REPRESENTATIVE OF AN INTESTATE ESTATE?

1.     Without court authorization the personal representative may: a. retain assets  b. receive assets c. perform deceased contracts  d. satisfy written charitable pledges  e. deposit funds in financial institutions  f. abandon valueless personal property  g. allocate expenses to income h. pay assessments  i. hold securities j. insure assets  k. borrow to protect estate  l. settle with debtors  m. settle claims  n. pay taxes and expenses  o. sell or exercise stock options  p. enter leases up to one year  q. vote stocks  r. employ and pay attorneys, auditors (subject to review the Probate Court unless all interested persons agree and consent)  s. prosecute or defend claims  t. continue unincorporated business  u. incorporate the business  v. limit liability  (Probate Court may limit powers of personal representative) 

2.     With prior court authorization the personal representative may:  a. abandon an estate asset  b. make repairs or demolish improvements  c. subdivide, dedicate land  d. leases greater that one year  e. enter mineral leases  f. sell real estate