Frequently Asked Questions About Probate Law

Probate is the legal process of validating a deceased person’s will, paying their final debts and taxes, and distributing the remaining assets to the rightful heirs or beneficiaries. The process is handled in the Probate Court of the county where the person lived. When there is a valid will, the court confirms it and appoints the executor named in it. When there is no will, the court appoints an administrator and the estate is distributed according to Alabama’s intestacy laws. Our probate of estates attorneys can guide you through every step.

The duration varies depending on the size and complexity of the estate, but most Alabama estates take somewhere between six months and a year to fully administer. Alabama law requires the estate to stay open for at least six months after letters are granted so that creditors have time to file claims. Simple, uncontested estates with cooperative heirs move faster, while estates involving real estate sales, disputes among heirs, will contests, or tax issues can take well over a year.

Probate costs generally fall into three categories: court filing fees, which vary by county; the personal representative’s commission, which Alabama law allows for the work of administering the estate; and attorney’s fees. Attorney’s fees depend on the size and complexity of the estate and whether anyone contests the proceedings. For most uncontested estates we can discuss a fee arrangement up front during your consultation. Call us and we can give you a better idea of the likely cost once we understand the size of the estate.

If someone dies without a will, they are said to have died “intestate,” and Alabama’s intestacy statutes decide who inherits. The distribution depends on which relatives survive the person. For example, a surviving spouse may share the estate with the deceased’s children or parents rather than taking everything, which surprises many families. Because intestacy may not reflect what the person actually wanted, the estate is distributed by a formula set by law rather than by personal wishes. This is one of the biggest reasons to have a will prepared.

Not always. Some assets pass outside of probate entirely, such as property held in joint tenancy with right of survivorship, life insurance and retirement accounts with named beneficiaries, and assets held in a properly funded living trust. If most or all of a person’s assets pass by one of these methods, full probate may not be necessary. Alabama also has a simplified process for very small estates that meet certain limits. We can review what the deceased owned and tell you whether a full probate, a small estate proceeding, or no probate at all is required.

Both are types of “personal representative” — the person responsible for handling the estate. An executor is the person named in the will to carry out its terms. An administrator is appointed by the court when there is no will, or when the named executor cannot serve. The duties are largely the same: gather the assets, notify and pay creditors, file any required tax returns, and distribute what remains to the heirs. The personal representative has a legal duty to act in the best interest of the estate and its beneficiaries.

Estate planning involves making plans for the management and transfer of your estate during your life and after death. It commonly includes preparing a last will and testament, setting up trusts, signing a durable power of attorney, and creating a living will or advance directive. Good estate planning lets you decide who receives your assets, who will care for minor children, and who will make decisions for you if you become unable to do so yourself.

Proper estate planning ensures that your assets are distributed according to your wishes rather than by a formula set by state law, and it can reduce taxes, costs, and delays for your heirs. Just as importantly, it spares your family from having to guess at your intentions or fight over decisions during an already difficult time. A complete plan also addresses what happens if you become incapacitated, not just what happens after death.

A will is a legal document that states how you want your property distributed after your death and names the person you want to serve as executor. To be valid in Alabama, the person making the will must be at least 18 and of sound mind, the will must be in writing, and it must be signed by the person making it and witnessed by at least two people who also sign it. Adding a self-proving affidavit, signed before a notary, makes the will much easier to admit to probate later. Our will attorneys can prepare a valid will for you.

A power of attorney is a legal document that allows one person, called the agent, to act on behalf of another, called the principal, in financial, medical, or other matters. It is one of the most useful planning tools available because it lets someone you trust manage your affairs if you cannot. A power of attorney is only effective while you are alive; it ends at death, at which point the executor or administrator takes over.

A general power of attorney becomes invalid if the principal becomes incapacitated, while a durable power of attorney remains in effect even if the principal is no longer able to make decisions. Because the entire point of a power of attorney is usually to have someone ready to act if you become unable to handle your own affairs, most powers of attorney prepared for estate planning purposes are made durable.

A living will, also called an advance directive for health care, is a legal document that specifies what medical actions should be taken for your health if you can no longer make decisions due to illness or incapacity. It commonly addresses your wishes about life-sustaining treatment and can name a health care proxy to speak for you. A living will is different from a last will and testament, which deals only with property after death.

To contest a will, a person must have legal standing — meaning they would be affected by the will, such as an heir or a beneficiary — and a valid legal ground. Common grounds include the belief that the will was signed under undue influence or duress, that it was procured by fraud, that the person lacked the mental capacity to make a will, or that it was not properly signed and witnessed. Will contests are time-sensitive and fact-intensive, so anyone considering one should speak with an attorney promptly.

A conservatorship is a court process where a judge appoints a responsible person, called a conservator, to manage the finances of an adult who cannot manage their own. A related proceeding, a guardianship, deals with personal and medical decisions rather than finances. These are sometimes needed for an aging parent or a disabled adult. You can learn more on our guardianships and conservatorships page.

Adoption is the legal process by which an individual becomes the legal parent of another, usually a child. In Alabama, most adoptions are handled in the Probate Court. The timeline varies widely depending on the type of adoption and the individual circumstances, ranging from a few months for a straightforward step-parent adoption to a year or more for agency or international adoptions. Our adoption attorneys handle all types of Alabama adoptions.