Probate Attorney in Spanish Fort, Alabama

For years, Brennan R. Clifton, Attorney at Law, has been representing clients in matters related to probate administration throughout Baldwin and Mobile Counties. Whether you live out of state or you are a member of our community, our firm is capable of handling your Alabama probate case. Because our probate practice primarily involves the administration of decedents’ estates, we typically become involved after a loved ones passes away.

The Basics of Probate Administration in Alabama

Probate Administration is one area of law that just about every person will deal with at least once during their lifetime, and usually multiple times. Upon the death of the decedent, a probate petition will be filed in the county in which the decedent resided at the time of their death. The purpose of the Probate Administration Process in Alabama is to ensure that after someone passes away, their property, otherwise knows as their “estate,” is transferred to their lawful heirs, or their intended beneficiaries if that person died with a Last Will and Testament.

Probate Timeline

Simple estates often can be closed within one year from the date the probate petition is filed. However, more complex estates can take several years. Below is the “usual” timeline and sequence of events that occur in probate administrations:

Differences between Intestate and Testate Estates

If a person dies with a Last Will and Testament, the type of probate proceeding that would apply is called a Testate probate proceeding. If a person dies without a Last Will and Testament, the type of probate proceeding that would apply is called an Intestate probate proceeding. Whether to open an estate in probate court is not necessarily dependent on whether the person died with a Last Will and Testament.

Intestate Estate

• The Decedent died without a Last Will and Testament.
• The property belonging to the Decedent’s estate goes to the heirs at law as set out in the Code of Alabama, with no exceptions.
• The probate administrator (otherwise known as “executor” or “personal representative”) must post surety bonds, submit annual reports and inventories to the Probate judge as well as final accountings and partial and/or final settlements.
• Letters of Administration shall be granted no less than five (5) days from the date of the intestate decedent’s death.
• Generally are more expensive since the executor is spared no steps as they are often spared when a Last Will and Testament is admitted to Probate.
• The executor must be a resident of the state of Alabama.
• The executor has to get permission from the probate court for many routine transactions involving the sale or transfer of assets.

Testate Estate

• The Decedent died with a Last Will and Testament.
• The property belonging to the Decedent’s estate goes to the beneficiaries as it is written in the Will. If no beneficiaries are included, property goes to the heirs at law as set out in the Code of Alabama. Creditors’ rights apply the same as they do in an Intestate estate.
• If the Will contains the proper provisions, an executor may be exempted from posting surety bonds and submitting annual accounting and reports.
• Generally are more expensive since the executor is spared no steps as they are often spared when a Last Will and Testament is admitted to Probate.
• The executor nominated in the Will is not required to be an Alabama resident.
• The executor has to get permission from the probate court for many routine transactions involving the sale or transfer of assets.

Rights of Creditors in the Estate

In Alabama, the probate process includes a statutory period of time (six-months for most probate administrations) in which creditors can file their claims against the Estate. If a valid claim is filed against the estate, the creditor may be entitled to payment out of the estate, even before the beneficiaries are. Whether a creditor has priority over a beneficiary’s share of the estate depends on the type of claim that is filed. Even if it is the the type of claim that a creditor would normally have priority over, a creditor may not recover against the estate should their recovery be barred by a beneficiary’s statutory exemptions under the laws of the State of Alabama.

Pursuant to Alabama Code 43-2-371 (2023), the order of preference of debts to be paid is as follows:

• Funeral/burial expenses
• Fees and charges of administration
• Expenses related to last sickness
• Taxes assessed on the of the decedent prior to death
• Debts due to employees, as such, for services rendered the year of the death of the decedent
• Other debts of decedent

When is Probate Necessary?

Probate is necessary in the following scenarios:

• The Decedent died with a Will and you want to make sure it is enforced. Only the Probate Court has jurisdiction to validate a Will. Without Probate, a person’s Will has no legal effect.
• The Decedent owned property but did not leave a Will. As a result, the Decedent’s children or next of kin cannot agree how to divide the property.
• The Decedent owned property that can only be transferred to a beneficiary with an Order from the Probate Court. Many times this applies to estates containing real property and/or bank accounts that contained no beneficiary designation.
• The Decedent’s heirs wish to sell the real property ASAP. Probating the estate shortens the creditors’ claim period from two years to six months. As a result, heirs can begin the process of selling assets much quicker instead of having to wait two years.

Dealing with Probate Court in Mobile, Alabama

If you are involved in a probate issue in Mobile, Alabama or the surrounding areas, our firm can most likely help. Brennan R. Clifton, Attorney at Law is a client centered law firm that was built on serving a clients in Mobile and Baldwin Counties. Call us at 251-422-6417 and let our vast experience in estate litigation in Baldwin County and Mobile County Probate Court go to work for you.