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WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL?
If someone dies without writing a will, they have died "intestate." Each state
has specific laws governing the distribution of property when a person dies
intestate, and most laws are generally the same. The laws of Alabama are
discussed below, but you should remember that these laws may not apply if the
deceased was not a resident of Alabama, or if the property is located in
another state. In this list, "issue" means all of the people who have descended
from the decedent. This includes children (both natural and adopted),
grandchildren (both natural and adopted), great grandchildren, and so on.
PROPERTY GOING TO THE SURVIVING SPOUSE:
- a. entire estate if no surviving issue or parents of decedent;
- b. first
$100,000, plus 1/2 of balance of estate if there is no surviving issue but
there is surviving parent(s)
- c. first $50,000, plus 1/2 of balance of estate if
there are surviving issue all of whom are also issue of surviving spouse; or
- d.
1/2 of estate if there are surviving issue who are not issue of the surviving
spouse
PROPERTY NOT GOING TO SURVIVING SPOUSE:
If there is no surviving spouse, or there is property left after the spouse
receives his or her share, it passes under the following priority: All of the
property passes to the issue, unless there are none. If none, all passes to the
parents. If neither parent is living, the estate passes to siblings, and so on
under this priority:
- a. issue
- b. parents
- c. brothers and sisters
- d. grandparents
- e. aunts and uncles
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f. cousins
STEPS IN PROBATE OF AN ESTATE:
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Petition filed
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Take immediate control of the estate
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Inventory of the estate within 45 days
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Bond, equal to the aggregate capital value of the personal property of the
estate, plus one year's estimated income from the estate
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Notice (as may be required)
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Letters of Administration granted
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Notice to file claims must be published once a week for 3 weeks and individual
notice given to anyone known to have a claim against the deceased
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Claims must be filed generally within 6 months
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Generally the estate cannot be divided until all claims and expenses have been
paid which is at least six months
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Probate Court must approve personal representative's fees (unless all
interested persons agree and consent)
WHAT ARE THE POWERS AND DUTIES OF A PERSONAL REPRESENTATIVE?
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Without court authorization the personal representative may:
- a. retain assets
- b. receive assets
- c. perform deceased contracts
- d. satisfy
written charitable pledges
- e. deposit funds in financial institutions
- f.
abandon valueless personal property
- g. allocate expenses to income
- h. pay
assessments
- i. hold securities
- j. insure assets
- k. borrow to protect estate
- l.
settle with debtors
- m. settle claims
- n. pay taxes and expenses
- o. sell or
exercise stock options
- p. enter leases up to one year
- q. vote stocks
- r. employ
and pay attorneys, auditors
- s. prosecute or defend claims
- t. continue
unincorporated business
- u. incorporate the business
- v. limit liability
(Probate Court may limit powers of personal representative)
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With prior court authorization the personal representative may:
- a. abandon an estate asset
- b. make repairs or demolish improvements
- c.
subdivide, dedicate land
- d. leases greater that one year
- e. enter mineral leases
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f. sell real estate
CAN AN INTERESTED PERSON OBJECT TO COMPENSATION PAID TO THE PERSONAL
REPRESENTATIVE, ATTORNEYS, ACCOUNTANTS AND OTHER PROFESSIONALS?
Yes, by filing an objection with the Probate Court, which will prompt a hearing
to be held to determine the appropriateness of the fees and / or commissions
requested and the reasonable amount of compensation to be paid.
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THIS INFORMATION PAGE, WHICH IS BASED ON ALABAMA LAW, IS TO INFORM AND NOT TO
ADVISE. NO PERSON SHOULD EVER APPLY OR INTERPRET ANY LAW WITHOUT THE AID OF A
LAWYER WHO ANALYZES THE FACTS, BECAUSE THE FACTS MAY CHANGE THE APPLICATION OF
THE LAW.
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