Do You Have to Do Probate When Someone Dies?

One question I often get is: Do you have to go through the Probate Court when a loved one dies? The short answer is no, not always. There are times when going through the Probate process is required. The process of going through Probate is referred to as “opening an estate.”

In Alabama, there is a piece of legislation called the Alabama Small Estates Act. This law created a process called Summary Distribution. Summary distribution provides a means to distribute the assets of a small estate without going through the full Probate process of opening an estate.Do you have to do probate when someone dies?

In order to qualify for Summary Distribution, an estate must not be worth more than $25,000 adjusted annually for the Consumer Price Index. For 2019, that amount was $29,710. Therefore, an estate must be valued at less than or equal to $29,710. Additionally, the deceased person must not own any “real property.” Real property is considered to be land and buildings on land. If the estate is worth more than $29,710 in 2019 or the deceased person owned any land, you must go through the Probate process and open an estate.

Another instance in which you don’t have to go through Probate is when the deceased person has jointly owned property. Jointly owned property would include bank accounts with a significant other or child as co-owner of the account. Another jointly owned item could be a piece of real property that is held jointly with the right of survivorship. Joint tenancy with the right of survivorship means the deceased co-owned the property with another person and upon the deceased’s death, the property is solely owned by the surviving owner.

Finally, one of the ways you can avoid Probate is to create a Living Trust. A living trust is created during the deceased’s life. You will need to have a local family law attorney create a Living Will for you, since it can be quite technical and difficult to prepare. During their lifetime, the deceased transfers his or her property into a Living Trust. It is important to note that retirement accounts and life insurance accounts (which specify a beneficiary other than the estate) are also not required to pass through the Probate process.

What Does an Executor do When Someone Dies?

         Have you been asked to serve as the executor of someone’s estate upon his or her death? The task sounds daunting, but a local attorney can guide you through the process seamlessly. Executors are identified in a person’s Last Will and Testament to carry out the tasks that are required to probate the deceased person’s estate. What does an executor do when someone dies?The process of going through Probate is referred to as “opening an estate.” Opening an estate is the method through which the deceased family member’s assets and possessions legally pass down to the family members of the deceased, or heirs.

The first thing you must do as executor of an estate is obtain copies of the death certificate of your deceased loved one. Then it is recommended that you obtain assistance of an estate planning attorney. An attorney will greatly reduce your stress and help guide you through the process of filing an inventory, notifying creditors, and distributing the asset. When selecting an attorney, ask up front what his or her hourly fees are or if they charge a flat fee for administering the estate. Either method of charging clients is acceptable, and no one method is better than the other, it is just a matter of attorney preference.

Once an attorney has been selected then you, through your attorney (or by yourself if you choose to go through this process without an attorney), will file the will with the appropriate Probate court. The next step is to create an inventory of the estate. An inventory identifies assets, otherwise known as the property (think land, nice furniture, jewelry, stocks, bank accounts) and liabilities, also known as debts (mortgage, car loan, student loan, credit cards), of the estate. Some wills waive the filing of an inventory. However, if your loved one’s will requires an inventory to be filed, it must be filed within two months of the estate being opened. The job of an executorThis process will likely require you communicating with your loved one’s insurance agent, attorney, accountant, investment advisor, and bank.

After you have identified the assets and liabilities of the estate, you need to create an estate account bank account which will be the bank account used to receive funds for the estate and make payments to creditors on behalf of the estate. Once you have identified the creditors of the estate, you must provide them notice that your loved one has passed away. A creditor has six months to make a claim that it is owed money by your loved one. After six months has elapsed, they are out of luck. You will pay the creditors out of the estate bank account for their valid claims against the estate.

Towards the end of the process, you will be responsible for distributing the assets, or property, of the estate to the heirs, also known as beneficiaries, listed in the will. Finally, you will be responsible for filing a tax return on behalf of the estate. This process sounds daunting, but with the help of a qualified and experienced attorney, it can be managed. As executor, you have the opportunity to honor your loved one’s wishes by distributing his or her property as they wished.