Once you have determined that probate is necessary, it is time to get things started with the probate court. This is where the probate process really begins. Here’s a broad overview of what needs to happen:
Determine the Type of Alabama Probate Proceeding to Open
The lawyer’s first step is to determine the type of probate proceeding to open. If the decedent’s assets cannot be disposed of using the homestead and exempt property allowances, the lawyer usually recommends a formal probate proceeding. Formal probate proceedings differ slightly depending on whether or not the decedent left a valid Last Will and Testament.
Determine the Appropriate Alabama Probate Court (Jurisdiction)
The lawyer determines the right court in which to file the estate proceeding. For Alabama residents, the estate is usually opened in the county in which the decedent lived. If the decedent lived out-of-state, the estate should be opened in the county where his or her assets were located.
File a Petition with the Alabama Probate Court
A petition is a document requesting that the judge open the estate. This document brings the matter before the probate court.
The initial petition requests that the court appoint someone to act as personal representative. If the decedent did not leave a will, the document appointing the personal representative is called Letters of Administration. If the decedent did leave a will, the document is known as Letters Testamentary. In both cases, this document gives formal evidence that a person has legal authority to act on behalf of an estate.
To obtain Letters Testamentary or Letters of Administration, the lawyer files a Petition for Grant of Letters Testamentary (if there is a will) or Petition for Grant of Letters of Administration (if there is no will) with the Alabama probate court. If there is a valid Last Will and Testament, the Petition for Grant of Letters Testamentary usually asks the court to recognize its validity.
Provide Notice to Spouse/Next of Kin
The spouse or heirs of the decedent are given at least 10 days notice before the hearing on the Petition to Admit Will to Probate is heard by the Alabama probate judge. Notice to out-of-state heirs must be given in accordance with the Alabama Rules of Civil Procedure. If there are minor children involved, the lawyer may ask that a guardian ad litem be appointed to represent the children.
Obtain and Submit a Personal Representative’s Bond
Unless the will waives bond, the personal must obtain a fiduciary bond or post collateral. The amount of the bond or collateral is usually equal to the amount under the personal representative’s control, less the value of property that can only be sold or conveyed with court authority. In practice, most wills waive bond. But even if a will waives bond, the Alabama probate court might still require it under certain circumstances.
For intestate estates, bond is statutorily required. In fact, Alabama probate judges can even be personally liable for damages resulting from their issuance of Letters of Administration without bond. Because of this liability, the bonding requirement is strictly enforced for intestate estates.
The lawyer includes the information necessary to compute the amount of the bond in the Petition. This allows the court to set the bond amount when it grants the Petition. The Letters of Administration or Letters Testamentary will not be issued until bond is posted.
The Lawyer Attends a Hearing with the Alabama Probate Court
Once the initial documents are filed with the probate court, the lawyer may attend a hearing to present the case to the probate judge. This is usually an ex parte hearing, meaning that the attorney appears on the client’s behalf in a non-adverse setting to discuss the matter with the judge. There is no need for the client to appear. In uncontested probate matters, it is not uncommon for the judge to open the estate without the necessity of a hearing.
Once the lawyer attends the hearing or otherwise presents the petition to the probate judge, the judge will issue an order opening the estate and grant Letters Testamentary or Letters of Administration. If bond is required, bond must be posted before the court will issue Letters of Administration or Letters Testamentary.
The Next Step in Alabama Probate: Estate Administration
After the lawyer has started the probate process by obtaining Letters Testamentary or Letters of Administration, you can proceed with administering the estate.