Probate is a legal process by which a court oversees the distribution of assets left by a deceased person. Assets include anything a person owns including real and personal property. The probate process varies depending on whether the deceased person dies with a Will (“testate”) or without a Will (“intestate”). The major difference between dying testate and dying intestate is that an intestate estate is distributed to beneficiaries in accordance with the distribution plan established by state law wheras a testate estate is distributed in accordance with the instructions provided by the deceased person in his/her Will.
If a person dies with a Will (“testate”), the court determines if the Will is valid, hears any objections to the Will, appoints an Executor, orders that creditors be paid and supervises the process to assure that property remaining is distributed in accordance with the terms and conditions of the Will. If a person dies without a Will (“intestate”), the court appoints a person to receive all claims against the estate, pay creditors and then distribute all remaining property in accordance with the laws of the state.
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What does it mean to probate a will?
Probate of a will is the administration of an estate to insure that all of the property is disposed of properly. It is the Probate Judge’s responsibility to make sure that all of the laws in Alabama regarding the distribution of estates are followed.
Who should probate a will?
Upon the person’s death, anyone named in the Will either as personal representative or as a recipient of property, or any other person with a financial interest in the estate, or the person who has possession of the will may have the will proved before the proper probate court. Any person in possession of the will must, by Alabama law, deliver the will to the Probate Court or to a person who is able to have the will probated. A person in possession of the will can be required to produce it.
Where should a will be probated?
Generally, the will must be filed for probate in the county where the deceased lived.
How long do I have to probate a will in Alabama?
Generally, a will must be filed for probate within five years of the date of the testator’s death.
What happens if I die without 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 shown 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 included children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.
Property going to the surviving spouse:
Entire estate if no surviving issue or parents of decedent;
First $100,000, plus 1/2 of balance of estate if there is no surviving issue but if there is surviving parent(s);
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 1/2 of estate if there are surviving issue who are not issue who are not issue of the surviving spouse.
Property not going to the 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 under this prior priority:
brothers and sisters
aunts and uncles