Alabama | Probate | Lawyer | Workers Compensation

What Does It Mean To Probate a Will?

by Keith Preston

I am going to briefly cover this topic in this post as I plan to follow up with a video soon.

What is the Problem?

This issue has come up several times this month with new clients so I feel that there are still people out there that are not getting the word. The fact that you have a Will that was properly signed by your mother, father, spouse or whoever does not mean a thing as far what the Will calls for to be carried out. If you are named as the executor in that Will and the person has died, you have no authority to act for that person , their estate or to do anything with their assets. That confuses a lot of people because the Will says that they have the authority to do those things. The truth is that you can GET that authority but you do not automatically have it just because the person has died.

How Do You Get Authority?

You must file the Will with the Probate Court in the County where the person died or where the persons assets and real property are located. Along with this you file a request for the Court to issue you what is called “Letters Testamentary”. It is the issuing of these Letters Testamentary that grant you the authority to begin acting in your capacity as the executor or the person in charge of the deceased persons assets and affairs. If you go the persons bank to check on any accounts or to get into a safety deposit box or obtain any personal information anywhere, you will be asked for a copy of the Letters Testamentary.

What About the House?

A popular thing to do is to go down to the Tax Assessors Office and have Daddy’s property put in your name by showing a death certificate and a copy of the Will. They really should ask you for a copy of the Letters Testamentary but sometimes they don’t because they assume you are going to probate the Will and are cutting you some slack. Not the way it should be done but it still happens. After this is done, people rock along for years thinking that that have taken care of everything. Later when they go to sell the property or borrow money on it, they find out that the property is still in Daddy’s name. This is because the Tax Assessor records have nothing to do with ownership of the property. That has to be done through the Probate Court. The change of Title must be accomplished either through the Probate of the Will or other judicial means. Simply assessing the property in your name will have no effect unless you then pay the taxes for more than 10 years and file an action to quiet the Title which is much more trouble and expensive than simply probating the Will. In the past couple of months I have come across this type situation three times. In each case the individuals thought that they had title to the property.

What Can Be Done?

It is a good practice to consult with an attorney when an important event such as a death occurs. A little prevention or precaution can go a long way toward avoiding potential problems.

I would be happy to talk with you about such matters. Please feel free to email or give me a call. Thanks for reading.

(205) 426 4525

email – keith.preston@prestonlawoffice.com

{ 0 comments }

What to do if your loved one died without a Will

by Keith Preston

There are several answers to the question.

First you need to consider why it is that you think you need to do anything. Many times, there are no assets that need to be transferred through the probate process. If there are no houses, no real estate. no retirement funds or insurance policies without named beneficiaries, no bank accounts without joint tenants and no other titled assets that need title transferred and no funds to be paid into the estate from asbestos or other sources then it is possible that opening an estate may not be necessary. It is wise though to consult with a lawyer to verify instead of trying to answer this question yourself.

In the event that it is determined that an estate needs to be opened, you can still do so even though there is no Will. However, instead of an “Estate” this will be referred to as an “Administration”. There are laws in place controlling who will be in charge of the Administration. This person will be the “Administrator” instead of the “Executor” when there is a Will. The powers, duties and responsibilities of the Administrator will be determined by the applicable statute instead of by the language of the Will. The distribution of assets will be determined by statute instead of the wishes of the deceased person. This comparison alone should be enough to cause you to want to make or update your Will. When make your own Will you are in charge. When you don’t do it, you get what is in effect a “Generic Will” that the State has written for you. It will likely not accomplish exactly what you would have wanted and will cause your loved ones more expense and red trouble.

It is important to consult with a lawyer upon the death of a loved one to ensure that you take whatever action is appropriate. Some actions that need to be taken have strict time limitations so it is important to act promptly.

If you have questions or comments regarding this subject please contact me by telephone or ny using the form below.