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Is Alabama Probate Necessary?

Before you hire a probate attorney and start filing documents with the court, you will want to stop and ask whether probate is even necessary in your situation.  The answer doesn’t depend on whether the decedent had a will, but on what assets the decedent owned and how they are titled.

Alabama probate proceedings only govern probate assets that are located in the State of Alabama.  So if a person did not own Alabama property, there is usually no need for an Alabama probate proceeding.  Your first step is to determine whether the decedent has assets that should be included in the Alabama probate estate.

This step is not as simple as it may seem.  Some items that the decedent owned may not be “probate assets” under Alabama law.  These “non-probate assets” are not part of the Alabama estate (but may be considered part of the taxable estate for estate tax purposes).  You should look at everything the decedent owned to determine which items are Alabama probate assets and which are not.

Probate assets include everything that the decedent owned that did not pass automatically to someone else at the decedent’s death.  Examples of probate assets include real estate owned only by the decedent, bank accounts in the name of the decedent, and life insurance policies that fail to name a beneficiary or are payable to the estate.  If the decedent owned any of these assets, Alabama probate will probably be required.

Nonprobate assets usually fall into three categories:

  1. Revocable Trust Property – Assets that are titled in the name of a valid revocable trust do not need to go through probate.
  2. Beneficiary Designations — Assets with payable-on-death or transfer-on-death designations do not go through probate.  Examples include life insurance and retirement or other financial accounts with valid beneficiary designations.
  3. Property Owned Jointly with Rights of Survivorship – Property that is owned jointly with rights of survivorship passes automatically to the surviving owner at the death of one owner.  So, for example, a home titled to a husband and wife with rights of survivorship will pass automatically to the survivor of them when the first spouse dies.

Common Question:  How do I determine whether property is held jointly with rights of survivorship? A: You will need to examine the deed to the property.  Look for language that says “as joint tenants with rights of survivorship” or “as joint tenants with right of survivorship and not as tenants in common.”  This sort of language expresses a clear intent that the property pass to the surviving joint owner(s) at the death of one of the owners.

Probate Note: These are just a few rules of thumb to help you figure out whether the decedent owned Alabama probate assets.  There are other considerations that come into play, such as homestead exemption, spousal/family rights, and alternatives to probate.  You should talk to the Alabama probate attorney about whether any item is a probate asset under Alabama law.

The Next Step: Opening the Alabama Estate

Once you have taken these preliminary steps, you should be able to give the Alabama probate attorney enough information to determine whether probate is required.  Once the attorney determines whether there are any alternatives to probate that could be beneficial, it is time to open the estate.

Related Resources on Alabama Probate

  1. Is Alabama Probate Necessary?
  2. Opening the Estate
  3. Estate Administration
  4. Closing the Estate