Alabama Probate Attorney

The Alabama Supreme Court recently approved a set of rules to facilitate “limited scope” representation.  Limited scope representation allows lawyers to assist clients with a specific part of a legal matter even if the client does not need (or cannot afford) representation in the rest of the matter.

For example, an attorney could provide limited representation by drafting the probate pleadings for an Alabama probate case.  The client could otherwise deal with the court clerk and represent themselves in the litigation.

The decision follows a similar 2010 opinion by the counsel for the Alabama state bar.  In that opinion, the Office of General Counsel approved “unbundled” legal representation, which allowed attorneys to perform discrete tasks on behalf of the client as an alternative to full legal representation.

This sort of arrangement is becoming popular across the nation and has been positively received.  Over 41 states now allow limited representation in some form.

In the probate context, unbundled legal services allow you to control the cost of the Alabama probate proceeding by choosing what services the Alabama probate attorney will provide.  Unbundled probate services are a good fit for:

• Clients who cannot afford to hire a lawyer for the more traditional “full representation” model.
• Clients who feel capable of learning the process themselves and just need limited assistance with form preparation and related issues.

Our firm has been offering unbundled probate services in Alabama since 2010.  Download our Alabama probate guide more information.

I have written about the 2009 amendment to the Alabama Small Estates Act that made it much more useful to Alabama probate attorneys.  Specifically, the Act was amended to raise the dollar threshold from $3,000 to $25,000.  Under the 2009 amendment, estates worth $25,000 can qualify for summary distribution under the Act.

The 2009 amendment also provided that the $25,000 threshold was to be indexed for inflation (tied to the Consumer Price Index).  The Alabama State Finance Director is responsible for making the inflation adjustments and reporting to the probate court.

On April 5, 2011, the State Finance Director notified the probate judges that the adjustments have been computed.  Here they are:

• For 2009, an estate must be worth $25,000 or less to qualify for summary distribution.
• For 2010, an estate must be worth $25,410 or less to qualify for summary distribution.
• For 2011, an estate must be worth $25,791 or less to qualify for summary distribution.

The State Finance Director issued this accompanying statement:

“Because the CPI-U for a calendar year is not published until January of the succeeding year, the adjustment provided will reflect the change for the previous calendar year, but will be effective for twelve months beginning the following March 1. For example, the value of $25,791 established for 2011 will be used for the period March 1, 2011 through February 29th, 2012.”

To sum it up, the Alabama Small Estate procedure could be useful for personal representatives of for decedents dying between March 1, 2001, and February 29, 2012, if:

1. The decedent owned Alabama assets but did not own real estate;
2. The total value of the decedent’s assets is less than $25,719; and
3. There are no outstanding debts of the estate.

For more information, check out my discussion of the Alabama Small Estates Act.

Dubose v. Weaver, No. 1070579 (Ala., February 25, 2011)

The Alabama Supreme Court recently threw out several years worth of complex litigation over a will contest, holding that neither the Alabama probate court nor the Alabama circuit court had jurisdiction over the estate administration.

The case was vacated due to the Alabama probate attorney’s failure to file the case in the right court.

Here’s how it happened: The personal representative, with the attorney’s assistance, filed a petition to admit the will to probate and for grant of letters testamentary in the Washington County Probate Court.  But before the will was admitted to probate, the heirs filed a petition to contest the will and a Petition for Transfer and Removal of the Estate from Probate Court to Circuit Court for Will Contest Proceedings.

The probate court granted the petition to remove to circuit court. Protracted litigation ensued, eventually reaching the Alabama Supreme Court.

Under Alabama law, the probate court is a court of general and original jurisdiction for administration of estates. The circuit court can obtain jurisdiction over a pending administration of an estate only by removing the administration from the probate court to the circuit court pursuant Section 12-11-41 of the Alabama Code, which provides:

“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.”

But the circuit court cannot take over jurisdiction of an estate until the Alabama probate process really begins.  In other words, the Alabama estate administration must start in the probate court before it can be removed to the circuit court.  And the Alabama estate administration doesn’t begin in probate court until the judge actually acts on the petition to admit the will to probate and grant letters testamentary.  Simply filing a petition is not enough to start the Alabama probate process and allow removal to the circuit court.

Here’s the takeway for Alabama probate attorneys: File in the right @*&$# court.

Alabama Probate Attorneys Have Better Alternative for Small Estates

The Alabama legislature recently made a few much-needed changes to the Summary Distribution of Small Estates provisions of the Alabama Probate Code.  Summary Distribution is designed to allow for quick and easy distribution of small estates, without the need for a full probate proceeding.

The problem with the old Small Estates procedure was that small meant small.  As in very small.  The procedure was only available for estates with a value of less than $3,000.00.  This low value requirement made the provision virtually useless since the vast majority of estates are worth more than $3,000.00.

The old law also required notice to be published once a week for three consecutive weeks.  The surviving spouse (or other claimants) had to wait 45 days from the date the Petition for Summary Distribution was filed and at least 21 days from the date that notice was first published. These requirements added administrative complexity to what was presumably intended to be a simple proceeding.

On May 7, 2009, the Alabama legislature addressed some of the deficiencies in the Summary Distribution of Small Estates law. As amended, the dollar threshold for small estates has been raised from $3,000.00 to $25,000.00.  The $25,000 threshold is now indexed for inflation.

The 2009 amendment also streamlines the procedural requirements.  The 45/21 day notice has been replaced by a simple 30 day notice from the date that the notice of the Petition for Summary Distribution is first published.  And instead of having to publish notice in the news paper for three consecutive weeks, one publication will now suffice.

These amendments should make the Summary Distribution of Small Estates procedure more useful to Alabama probate attorneys who are seeking quick and cost-efficient probates for their clients.