Intestate estates are simply when there is no will to probate, but an estate is administered. When the decedent had no will, the process is initiated by filing a petition for letters of administration. This petition lists out information such as the name of the decedent, their date of death,the county they died in and the names of the surviving spouse (if any) and next of kin. Letters of administration cannot be admitted until the passing of five (5) days of the decedent’s death. ALA. CODE § 43-2-45. A copy of the decedent’s original death certificate and an administrator’s bond are also required for filing along with the petition for letters of administration. ALA. CODE § 43-2-851. Letters of Administration are issued by the probate court to the petitioner named in the petition upon the filing and review of all the required documents.
A will can not be admitted to probate until after the death of the testator (person who wrote the will). A will must be filed for probate within five (5) years of the date of death of the testator. ALA. CODE § 43-8-161. Any person having custody of a deceased person’s will must deliver it to someone who is able to probate such will. The executor named in the will, devisee or legatee named in the will or who has custody of the will may petition to have the will probated. A petition to probate a will must be filed with the probate county of the county where the decedent was an inhabitant at the time of their death. This petition, along with the decedent’s original death certificate and the original will, must also be filed. If the original will cannot be found, it is possible to probate a copy of the will with the testimony of a witness who read the will, heard it read, and remembers its contents. Letters Testamentary are issued by the probate court upon the filing and review of all the required documents. The probate court may require a hearing if all persons listed in the petition have either not received notice or have not signed a waiver of notice and consent to the petition of the probate of will.
When the property of the estate is insufficient to pay the estate’s debts, the estate is said to be insolvent. Proceeds from the sale of property must be distributed in proportion to the amounts due to each creditor (in the order of priority of creditors as set out in ALA. CODE § 43-2-371). Once notice of insolvency is given, the creditors file claims and a pro-rata distribution is made by the personal representative of the estate. After a report of insolvency is filed by the personal representative, a hearing is set by the probate court. Once notice of the hearing is properly given, and no one contests the insolvency report, the court can declare the estate insolvent.
Small Estates/ Summary Distribution
In cases where the value of the decedent’s entire estate does not exceed $25,000, a summary distribution may be appropriate. A summary distribution is a court proceeding utilized to distribute personal property of a decedent to a surviving spouse or any other appropriate distributees without the expense of going through a full probate administration. The Alabama Small Estates Act requires other conditions be met in addition to a prescribed estate value set each year by the Alabama Department of Finance. Some of these conditions include the following: (1) the petitioner must be the surviving spouse or a distributee, (2) no other petition has been filed or granted, (3) all funeral expenses have been paid, (4) all claims against the estate have been paid or arrangements for payment have been made.
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