How Long After a Death is a Will Executed?

When you write a Will, assuming you are at least 18 years old, of sound mind, and covered all the other legal requirements to create a valid Will, it is considered “executed” at the time you sign it. This means that it is “good” indefinitely unless you change it or revoke it. To be legally effective, a Will must be probated within five years of the date of the testator’s death. While you don’t legally have to probate a Will in Alabama, it is often advisable if there are numerous beneficiaries and/or claims upon the estate. And you should probate a Will if you want it to have legal authority.

At the moment a person dies, the most recent version of their Will becomes the official document the courts look to for guidance as to what the testator (i.e., the deceased) wanted done with their belongings. How Long Will ExecutedFor a Will to be valid in Alabama, it should be in writing, signed by the person making it (i.e. the testator) or someone in the testator’s presence and under his or her direction, and attested to by at least two witnesses who sign their names in the presence of the testator. The testator must be mentally competent and at least 18 years old. Some states allow handwritten wills (called “holographic wills”) to be admitted as valid. Alabama does not recognize such handwritten wills.

After the testator dies, the personal representative should go to the Probate Court in the county where the testator lived at the time of their death with the Will. They should request a letter of administration (also called letters testamentary). Then the personal representative should begin collecting all the testator’s assets. Often times a testator will prepare an asset inventory to include with their Will. This is especially useful if the personal representative did not have intimate knowledge of the testator’s assets.

If someone dies without a valid will, they are considered to have died “intestate.” Every state has its own rules about who gets what under intestate laws, but they are generally similar. In dealing with estates, you will come across the word “issue.” In this context, issue means all of the people who have descended from the deceased. This includes children (natural and adopted), grandchildren (natural and adopted), great-grandchildren, and so on.

Once the estate is opened it must remain open for six months to allow creditors of the estate to submit claims. This means the estate cannot be closed in less than six months, with eight to ten months being more the typical time frame. Probating an estate can be done without an attorney, but having an experienced estate attorney help with the administration can speed up the process by getting the paperwork correct the first time. It could potentially costs you thousands of dollars if the process is mishandled and creditors get involved. Our rates start at a $1,500 retainer, depending on the size and complexity of the estate.

Does an Executor Have to Notify Beneficiaries?

If someone dies and puts you in charge of their estate in their will, you are their Executor or Personal Representative. There are three basic things Executors must do: 1) Protect the Estate by identifying and securing the property owned by the estate, 2) Probate the Will, which makes it legally effective. You can then begin to do things like sell assets and obtain tax clearance; and 3) Pay creditors and beneficiaries. Does an Executor Have to Notify Beneficiaries?Executors have certain fiduciary duties governing how they administer the estate. One of the foremost fiduciary duties required of an Executor is to put the estate’s beneficiaries’ interests first. This means you must notify them that they are a beneficiary.

As Executor, you should notify beneficiaries of the estate within three months after the Will has been filed in Probate Court. For beneficiaries of assets that are not included in the will (and therefore do not pass through Probate) there are no specific notification requirements. For all items listed in the Will, however, that becomes a matter of public record once it is admitted to Probate. If you are the Executor, bear in mind if someone does not think they are getting all they are entitled to under the Will then they can go to the Probate Court where the Will is filed and review the document, make copies of it, and get their own attorney involved if necessary. You should consult with a family law attorney if you are unsure how to proceed as personal representative of an estate.

Some assets do not have to go through probate. Assets that do not have to go through the probate process are those that automatically pass to someone else at the testator’s death. Examples include life insurance, retirement and other financial accounts, and property owned “Jointly with Rights of Survivorship.” Assets that typically are considered part of the probate estate are bank accounts in the testator’s name, real estate owned by the testator, vehicles, furnishings, etc. A shorthand rule of thumb is, if it has a designated beneficiary assigned to it, the asset does not usually have to go through probate. If the asset does not have an assigned beneficiary, it usually does have to go through probate.

Beyond your fiduciary duty to put estate beneficiaries’ interests first, you also have an obligation to protect the estate’s assets, follow valid Will instructions, keep good financial records, be impartial and treat all beneficiaries fairly, and keep the estate’s assets separate from your own assets. Some things to avoid as an Executor are delegating your personal decision making responsibilities, putting your interests ahead of the estate’s interests, failing to act prudently with investments, making a profit from the position (executor compensation is not-for-profit), and buying estate assets without express permission.

You will be more likely to attain and keep the trust of beneficiaries. If you do not wait for them to come to you. If you notify them as soon as you can once you identify all beneficiaries, they will see that you are being proactive and are taking your role as Executor seriously and ethically. Always be aware of the potential of real or perceived conflicts of interests. If it looks like you are unfairly gaining from your position as Executor, or shortchanging a beneficiary in a way that could benefit you, it could lead to claims against you and greatly slow down the administration of the estate.