Do You Have to Do Probate When Someone Dies?

One question I get all the time is: do you have to go through Probate Court when a loved one dies in Alabama? The short answer is no, not always. Plenty of assets pass to the people who are supposed to receive them without a judge ever getting involved. But there are also situations where opening an estate in Probate Court is unavoidable, and guessing wrong can freeze bank accounts, cloud title to land, and leave family members unable to access money they need. This article walks through when probate is required in Alabama, when you can skip it, and how the Revised Alabama Small Estates Act changed the rules for smaller estates.

What “Going Through Probate” Actually Means

Probate is the court-supervised process of settling a deceased person’s affairs. When we talk about going through probate, we mean “opening an estate” in the Probate Court of the county where the person lived. The court appoints a personal representative, called an executor if the person left a will naming one, or an administrator if there was no will. That representative receives Letters Testamentary or Letters of Administration, which are the court documents that give them legal authority to collect the deceased person’s assets, deal with banks, pay debts, and eventually distribute what’s left to the heirs or beneficiaries.

A few basics worth knowing up front. In Alabama, a will must be filed for probate within five years of the date of death, or it cannot be admitted and the estate passes as if there were no will at all. Once an estate is opened, notice to creditors must be published, and creditors generally have six months to file claims against the estate. Between the appointment, the creditor claim period, an inventory, and the final settlement, a full estate administration commonly takes six months to a year, and sometimes longer if there are disputes. Our Alabama probate of estates lawyers handle these administrations from filing through final settlement.

Because full administration takes time and costs money, the real question for most families is whether the assets their loved one left behind actually require it. Many don’t.

Assets That Skip Probate Entirely

Probate only controls assets titled in the deceased person’s name alone with no beneficiary designation. A surprising amount of what people own doesn’t fit that description. The following categories pass outside probate automatically, regardless of the size of the estate:

Jointly Owned Property With Right of Survivorship

When two people own property as joint tenants with right of survivorship, the surviving owner takes full ownership the moment the other owner dies. No court order is needed. This applies to real estate deeded with survivorship language, and it’s how most married couples in Alabama hold their homes. It also applies to joint bank accounts. If a parent adds an adult child as a joint owner on a checking account, that account typically belongs to the child at the parent’s death without ever touching probate.

One caution on Alabama real estate: joint ownership without survivorship language is treated as a tenancy in common. If the deed just names two people without the magic words, the deceased owner’s half interest does NOT automatically go to the co-owner. It becomes a probate asset. This trips up families constantly, and it’s why having a deed reviewed or prepared by an attorney matters more than people think.

Assets With Beneficiary Designations

Life insurance policies, 401(k)s, IRAs, pensions, and annuities pay directly to the named beneficiary. So do bank accounts set up as payable-on-death (POD) and investment accounts registered as transfer-on-death (TOD). As long as the named beneficiary is a living person rather than “my estate,” these assets bypass probate completely. The company holding the funds pays the beneficiary upon receiving a death certificate and a claim form.

The flip side: if the beneficiary designation is blank, or the named beneficiary died first with no contingent beneficiary listed, the asset usually defaults to the estate and lands right back in probate. Reviewing beneficiary designations every few years, and especially after a divorce, is one of the cheapest pieces of estate planning anyone can do. We cover why in our page on updating your will after a divorce.

Property Held in a Living Trust

A revocable living trust is created during a person’s lifetime. The person transfers their property into the trust, typically continues to control and use it as trustee while alive, and names a successor trustee to distribute everything at death according to the trust’s terms. Property properly titled in the trust never becomes part of the probate estate, because the deceased person didn’t own it individually at death. The trust did.

Living trusts are technical documents, and the transfer step is where people go wrong. A trust only avoids probate for assets actually retitled into it. A beautifully drafted trust with an empty name does nothing. If you’re considering one, our Alabama trust attorneys can walk you through whether a trust makes sense for your situation and handle the funding correctly.

Summary Distribution Under the Revised Alabama Small Estates Act

Even when assets are titled in the deceased person’s name alone, Alabama offers a shortcut for smaller estates. The Alabama Small Estates Act, found at Alabama Code § 43-2-690 through § 43-2-696, created a process called summary distribution. It lets qualifying estates be distributed through a streamlined court proceeding without opening a full estate or appointing a personal representative.

The Act was substantially revised effective October 1, 2025, and the changes were good news for families. Under the old version, the cap was a CPI-adjusted dollar figure that started at $25,000 (it was $29,710 back in 2019 and had crept up to around $37,000 by early 2025). The revised Act ties the limit to the combined value of the homestead allowance, exempt property allowance, and family allowance, which works out to approximately $47,000 for deaths in 2026. That figure continues to adjust for inflation, so always confirm the current number with the Probate Court before filing.

To qualify for summary distribution, the estate generally must meet these requirements:

• The total value of the estate cannot exceed the threshold (approximately $47,000 in 2026)
• The estate can include personal property only. If the deceased owned any real property, meaning land or buildings, in their name alone, summary distribution is off the table
• No petition for appointment of a personal representative can be pending or granted. If full probate has already started, you can’t switch to the shortcut
• There must be no surviving minor child of the deceased who is not also a child of the surviving spouse
• Funeral expenses must be paid, or arrangements made to pay them from the estate

The process itself involves filing a verified petition with the Probate Court in the county where the deceased lived, publishing notice in a newspaper of general circulation in that county, and giving notice to the Alabama Medicaid Agency. At least 30 days must pass after publication and after Medicaid receives notice before the court can act. Once the requirements are satisfied, the judge enters an order directing banks and anyone else holding estate assets to pay them directly to the persons entitled to receive them. No executor, no letters, no six-month creditor window, no final settlement.

Summary distribution works for estates both with and without a will. It’s a genuinely useful tool for the common scenario where someone passes away leaving a modest bank account, a paid-for vehicle, and some personal belongings, but no land. Our small estate probate attorneys handle these filings regularly and can usually tell you within one phone call whether an estate qualifies.

When You DO Have to Open an Estate

So when is full probate actually required? The most common triggers we see:

1. The deceased owned real property in their name alone. This is the big one. Land and homes titled solely in the deceased’s name, or held with a co-owner without survivorship language, cannot be sold or transferred with clean title until the estate is probated. Even a small tract of family land inherited decades ago can force an estate open.
2. The estate’s personal property exceeds the small estate threshold. If the bank accounts, vehicles, and other individually owned assets total more than roughly $47,000, summary distribution isn’t available and full administration is the path.
3. A financial institution demands Letters. Banks, brokerages, and insurance companies will often refuse to release funds titled solely in the deceased’s name unless someone presents Letters Testamentary or Letters of Administration. If there’s no joint owner and no beneficiary on the account, that means opening an estate.
4. There’s a lawsuit or claim involved. Wrongful death claims in Alabama can only be brought by a court-appointed personal representative, so an estate must be opened even if the deceased owned virtually nothing. The same goes for pursuing a personal injury claim that survived the person’s death.
5. Family conflict. When heirs dispute a will’s validity, disagree about who should serve, or suspect assets have gone missing, court supervision is the mechanism for sorting it out.

If any of these apply, don’t wait. The five-year deadline to probate a will is unforgiving, creditor issues get messier with time, and property that can’t be sold or insured properly sits in limbo until someone acts.

What Does Probate Cost Compared to the Alternatives?

Cost is usually the second question, right after “do we have to?” A full estate administration involves the Probate Court filing fee (which varies by county but commonly runs several hundred dollars), the cost of publishing notice to creditors in the newspaper, a bond for the personal representative unless the will waives it, and attorney’s fees for guiding the administration. On top of the money, there’s the time: the six-month creditor claim period alone means no full administration wraps up quickly, and the personal representative carries real legal duties during that stretch, including filing an inventory, safeguarding assets, and accounting to the court and the heirs.

Summary distribution, by contrast, involves one petition, one publication, one 30-day wait, and one order. It is dramatically cheaper and faster, which is exactly why the legislature raised the ceiling in 2025 to let more families use it.

And assets that pass outside probate entirely, through survivorship deeds, beneficiary designations, and trusts, cost the family nothing at death beyond a death certificate and some paperwork with the bank or insurance company. That comparison is the whole argument for planning ahead: a few hundred dollars in documents now versus months of court process later. Where the deceased did no planning, though, don’t try to force a square peg into a round hole. Attempting summary distribution on an estate that doesn’t qualify, or distributing assets informally without any court authority, can leave heirs personally exposed if creditors or other family members surface later.

Planning Ahead: How to Keep Your Own Estate Out of Probate

Everything above is also a roadmap for the living. If your goal is to spare your family the time and expense of probate, the tools are straightforward: survivorship deeds for real estate, POD and TOD designations on financial accounts, current beneficiaries on life insurance and retirement accounts, and, where appropriate, a revocable living trust to catch everything else. A will is still essential as the backstop for anything that slips through, and it’s where you name guardians for minor children. At our firm, a simple Last Will and Testament is a flat $750, and we prepare durable powers of attorney and advance healthcare directives at $750 each as well. A single planning meeting can eliminate most or all of the probate work your family would otherwise face.

The Bottom Line

Whether you have to go through Probate Court when someone dies in Alabama depends entirely on what they owned and how it was titled. Jointly owned property with survivorship rights, accounts with beneficiary designations, life insurance, retirement accounts, and trust assets all pass outside probate. Smaller estates without real property, up to about $47,000 in 2026, can use summary distribution under the Revised Alabama Small Estates Act. But solely owned real estate, larger estates, and situations involving lawsuits or uncooperative institutions require opening a full estate.

If you’ve lost a loved one and aren’t sure which category their estate falls into, that’s exactly the kind of question we answer every day. The Harris Firm LLC offers free phone consultations on probate and estate matters, and our Alabama probate attorneys serve families from our offices in Birmingham, Chelsea, Huntsville, and Montgomery. Call us at (205) 201-1789 and we’ll help you figure out the simplest, least expensive way to get your family where it needs to go.

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