Probating a Decedent's Will in Alabama
by Major Bashinsky, Attorney at Law, Masters of Taxation
At a time when a family is grieving the loss of a loved one, one or more family members are confronted with the process of probating the will of the deceased family member in order to settle his estate. Probate is a public process and can be technical, and sometimes illogical. Probate usually takes a minimum of six months to close, often much longer. Depending on the size and complexity of the estate, probate can also be expensive:
- Accounting Fees
- Appraisals
- Filing Fees
- Fiduciary Bonds
- Legal and Executor Fees
- Publication Fees
- State and Federal Taxes
Each county in Alabama has a probate court and probate judge. Probating a will is normally filed in the county where the decedent last resided. Section 43-8-162 The Probate Filing Process for a Decedent's Personal Representative:
- File Petition for Probate with the proper Court. Section 43-8-160
- Provide actual or published notice to next of kin. Section 43-8-164
- Obtain an order issued by the Probate Judge admitting the will to probate.
- Grant of Letters Testamentary to the personal representative. Section 43-2-20
- Bond posted with the Probate Court, if not waived under the will. Section 43-2-82
- Obtain federal tax I.D. Number (Form SS-4)
- Actual notice sent to all known creditors of the Estate Section 43-2-60
- Legal notice is published for three weeks in a newspaper of general circulation .
- Proof of newspaper publication is provided to the Clerk of the Probate Court
- Petition Probate Court to have the Homestead, Exempt Property and Family Allowances set aside. Section 43-8-110 et seq.
- File Petition to sell real property if not allowed under the will. Section 43-2-441
- File Petition to Probate Court to make a partial distribution to the estate's beneficiaries. Section 43-2-500
- File Ancillary Probate Petition for Alabama real property. Section 43-2-211
- Pay valid creditor claims timely presented to the estate. Section 43-2-350 et seq.
- Wait six month statutory period for creditor claims to be filled
- File annual accounting if estate is still open
- File estate tax returns: (Form 1041 - Income Tax Return (annually) and Form 706 '“ Estate Tax Return) if required.
- Pay any federal or state income or estate taxes owed.
- Petition Probate Court for an order allowing the Final Distribution of property to beneficiaries. Section 43-2-620 et seq.
- File Final Accounting with Probate Court Section 43-2-502
- Petition Probate Court to close the estate and to discharge personal representative from all liability. Section 43-2-628.
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