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Probating an Estate

Learn everything you need to know about probating an estate, administering an estate, filing a will, executing a will, and distributing assets. Understand the requirements, powers, and compensation of personal representatives. Discover the process of contesting a will, filing claims, and settling estates. Gain knowledge on property interests, dower, curtsey, and homestead rights. Determine the distribution of intestate estates and the spouse's elective share. Find out how to disclaim an interest in property.

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Probating an Estate

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  1. Probating an Estate

  2. Administrating an Estate (Intestate) • Where to File? • When to File? • Who may file?

  3. Requirements of Filing • Petition • Bond • Letters of Administration • Inventory • Claims Filed • Notice of Filing Estate • Publication in newspaper • Actual notice

  4. Inventory of Estate • List all bank accounts • Stock • Deeds and property • Life insurance • Heirs

  5. Personal Representative(Authority) • Authorized powers • Special authorized powers • Compensation of P.R. • Payment of Attorney’s Fees • Settlement the Estate • Payment of claims • Distribution of Assets

  6. Disclaimer of Property Interest • Any Beneficiary • Renunciation (Whole or in Part) • In writing • Within 9 months of Death • As if never passed to the Estate.

  7. Probate of Will • Validity of a Will • Who can make? • How does one execute a Will? • Is the Will good in every state?

  8. Filing ofWill • When filed? • Where filed? • Who can File? • How is will proved? • Who must be notified? • How is notice to creditors given?

  9. Contest of Will • Who can contest? • Grounds to Contest?

  10. Preparing for a Will Contest

  11. Filing of Claims • Within 6 months after Letters granted • Within 5 Months of Publication • Provided 30 days notice given to known creditors • Verified claims • Preference of payment

  12. Settlement of Estates • Annually • Anytime after 6 months • When claims are paid • Distribution of Assets • Presumption after 20 years

  13. 1. When does Title Pass in Estates? • Is a deed necessary? • Immediately upon Death to : • Heirs • Those indicated in the Will. • See: Section 43-2-830

  14. Who are the Heirs? Depends on when the landowner died

  15. 2. What is Dower ?Chapter 15And why do I need to know? An estate for life of the widow in lands of her husband: • No children-1/2 the land • With children- 1/3 the land • Widow cannot have the land sold for division > • Abolished, January 1, 1983 • Why do I need to Know this?

  16. 3. What is Curtsey? Chapter 12And why do I need to know? • The estate of the husband in wife’s realty for life.> • Abolished, August 20,1981 • Why do I need to know this?

  17. 4. What is Homestead?Chapter 19And why do I need to know? Exemptions during lifetime • $15,000 and 160 acres from debts (Ala Const: $2,000) • $30,000 for husband and wife > Exemptions after death • Widow and minor children have a life estate in the homestead up to 160 acres if no debt. • Homestead < $15,000 is exempt from debts. • May sale land > $15,000 to pay debts. Wife and children get first $15,000. States vary i.e. Florida residence is exempt regardless of value

  18. 5. Distribution of Intestate Estate other than to Spouse (43-8-42)

  19. A. To whom does the Real Estate go at death? • Ralph died with 5 children, no wife. In his will he made after his wife died he left his farm to the Law school. Will his children have a claim for a part of the property?

  20. B. To whom does the Real Estate go at death? • Ralph died with 5 children. In his will he made in law school before any of the children were born he left his house to the Law school. Will his children have a claim for a part of the property?

  21. C. To whom does the Real Estate go at death? Ralph died with 4 children by 2 different women. With wife 1 he had 2 children. On his death bed he disclosed he had a second wife in Bessemer and 2 more children.(1st.wife still alive) • No will • In his will he left $50,000 to wife # 1 and their 2 children and the balance of his estate which was all land to the Law school. Do any of his children have a claim for any part of the property?

  22. “The Nolan Chart” 255 Ala.354

  23. Share to heirs other than Surviving spouse 43-8-42

  24. 6. Share of Spouse (43-8-41)

  25. Spouse Elective Share:Lesser: 100% minus separate Estate 1/3 the Estate

  26. 7. Spouse Elective Share (43-8-70) • Lesser of : • 100% Estate minus Survivor’s Separate Estate • 1/3 of Estate

  27. B. To whom does the Real Estate go at death? • Ralph died with 5 children and a wife. In his will he left his land to the Law school. Does his wife and children have a claim for a part of the property?

  28. 2. Sarah, a Birmingham resident, in her will • left husband # 2- $1,000; • her children, by husband # 1, • daughter her condo on the beach valued at $400,000 and • son the balance of her estate, valued at $200,000. Does Husband #2 have a claim on the condo? Does her son have a claim on the condo?>

  29. 3. Sarah, in her will, left husband # 2- $1,000; her children, by husband # 1, daughter her condo on the beach valued at $400,000 and son the balance of her estate, valued at $200,000. C. Sarah & Husband # 2 owned their house (valued at $500,000) as Joint tenants with right of survivorship. Does Husband #2 have a claim on the Condo?>

  30. 8. How May one Disclaim an Interest in Property?(43-8-291) • File in the estate • Within 9 months of death • Disclaimer signed by disclaiment • Describe property • Disclaim • In whole • In part • Copy to personal representative • Real property disclaimer filed for record in Probate Office • Effect of Disclaimer is as if person predeceased decedent • Can one disclaim and avoid creditors? See14-12 p.122 Pennington v. Bigham, 512 So.2d 1344 (Ala.1987)

  31. 9. Bona Fide purchasers for value from an estate (43-8-172) • Purchase from Heirs • 12 Months after death • No knowledge of a will

  32. Statute of non claims- 6 months file verified claims Does not apply to : Recorded mortgages Minors/ incompetents Bona fide purchasers for value- 12 months 2 years from death unrecorded claims against real estate Accounts- 3 years Contracts- 6 years Contracts under Seal- 10 years Bill to quit title-10 years 10.Statue of Limitations on Claims against Estate (6-2-41)Probated EstateNon-Probated Estate

  33. 11. How long does one have to file a Will? • 5 years after death, • Statute of limitations. (Must be plead)

  34. 12. Why file an intestate estate for Probate? • Shorten the statute of limitations • Granting of Letters of Administration • Publication within 30 days of letters • 5 months of publication • Within 6 months after letters are granted • Provided 30 days actual notice is given to creditors

  35. 13. Sale of Intestate Estate by Heirs • Warranty deed with right of survivorship • Generally-Heirs are tenants in Common • Personal Representative , with specifically granted power, may hold sale.

  36. 14.Personal Representative with “Power of sale” in a will • Compulsory vs. Discretionary

  37. 15. Personal Representative “Power over” real estate • Payment of debts • Distribution of assets • Deed from Personal Representative ? • Yes • No

  38. 16. Who can contest a will? Any person who would have inherited intestate.

  39. 17. How may a Personal Representative sale land? • With court approval • Payment of Debts • Real property cannot be equally divided • Probate court order to sell land • Notice to heirs • Notice in paper- 1 per week 3 weeks • Sale • Notice of sale filed with Probate Judge • Sale confirmed by Probate Judge after 10 days

  40. 18. What is Partition?How does one Partition Property? Chapter 37 “Partition” More later

  41. 19. May heirs prohibit the sale of family estates?35-6-100 Chapter 37 “Partition” Partition of Heirs Property http://uniformlaws.org/Act.aspx?title=Partition%20of%20Heirs%20Property%20Act Alabama Code Section 35-6-100 (Constitutionally See:Jolly V. Knopf, 454 So.2nd.919 (1984)

  42. 20. How may one clear title when no estate is filed? • Affidavit as to Heirs see; Forms 2-114 & 2-115 • Names • Ages • Mental competency • Surviving Spouse, • Date of death, • No will and no administration of Estate.

  43. 21. What are the limits on fees? • Attorney’s fees Ala. See. Rules of Professional Conduct, Rule 1.5 • Personal Representative fees • Court approved maximum • 2.5% estate in • 2.5% estate out • Extraordinary expenses

  44. 22. When checking title to property, how do you know when the estate is settled? “ …more than 5 months from the date of the publication of notice; and more than 30 days after actual notice was given to all known creditors”

  45. 23. How does a Personal Representative sale property? • When necessary to pay debts or make distributions; • P.R. must petition the Court and obtain a court order; • Guardian ad litem must be appointed for minor devisees; • Notice of sale in a newspaper once a week for 3 weeks; and • Order confirming sale of real estate after 10 days.

  46. Solo and Small Firm Section of the Alabama Bar.

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