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Nolan Elder Law and Estate Planning, LLC Blog

Monday, August 8, 2016

Probate! continued......

In the last session we talked about probate in general. What is it, why is it important and when it becomes necessary. This installment is going to go a little deeper into the process though, so our Alabama readers will know what to do when that time comes.

After a person has died, their family sometimes meets with an attorney to discuss what to do to "settle the estate" of the dearly-departed. This conversation can take one of three different paths:

1. If the deceased had a valid, properly funded revocable living trust;

2. If the deceased had a valid Last Will and Testament;

3. If the deceased had neither.

 

Sometimes the family doesn't even know if the deceased had any plan in place. In that event, we all have to take some time to do some detective work- to find out if they had a will or not and whether they had revoked it or merely lost it, for example.

Assuming for now though that the deceased had a valid Will, the probate process begins when this original (not a copy) of the Will is presented to the local Probate Court along with an original death certificate, various petitions that the attorney prepares and Waivers signed by the next-of-kin. (These next-of-kin may or may not be the same people as the beneficiaries named in the Will.) All of this is filed with the Court along with a filing fee of about $50 and a fee for publication that can run anywhere from $60-$125, depending on your county.  This pays for a notice in the local paper, that probate has begun and if there are any creditors who want to be paid, they have six months to filed their claims with the Court or chance not getting paid at all.

The Court issues what are known as "Letters Testamentary", so the person named Executor in the Will can start to do everything they need to do in order to settle the estate. These "Letters" give the Executor broad powers- power to sell real estate, open and close bank accounts, collect insurance etc- and without these Letters, the Executor has no power at all. A common mistake people make is to assume that just because a person's Will names them Executor, that is all they have to have in order to manage the estate. This is simply not true. You must have these Letters Testamentary in order to accomplish the many tasks needed to be done.

The next installment will go even deeper than this one to talk about specifics of the duties and what to be aware of as Executor. Stay tuned!


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