What do you do when a family member or close friend passes away and it falls to you to probate their estate? Maybe you’re the executor named in the will, or maybe you the person who would be the executor can’t or won’t take the job. What do you do then? Probate is a long and paper-filled process. These four or five steps can get you ready for the process.
1. Find the Last Will and Testament
First, you’ll want to determine if the deceased had a last will and testament. (Now is a good time to think about updating your own will.) If one exists this will be an easier process. Find the original will – not a copy.
If you can’t find the original will, talk to family members about why it can’t be found. If the will has been destroyed it has likely been revoked – and there isn’t a will to probate. However, it is not uncommon for the original to be misplaced or found later. Do the best you can to recreate what might have happened to the original – you may have to tell the probate court in a “Proof of Lost Will” filing.
2. Get Several Certified Copies of the Death Certificate
To start the probate process you will need to file one certified death certificate. But you might need more than one, especially if there were some life insurance policies. Some insurance policies will require you to send them an original death certificate so you’ll want to have an extra on hand. Often the funeral home will assist you with getting a death certificate, but you can also get them directly from the county.
3. Figure Out Who the Heirs at Law Are
To probate a will you need to answer who would receive the estate if there wasn’t a will. It helps if you write out a family tree. Start with the spouse (if there is one), then move on to children, grandchildren, etc. If the decedent doesn’t have children or living heirs, list the decedent’s parents, their siblings, their siblings’ children, etc. Don’t just write down the names, put addresses and phone numbers if you can find them.
4. Start Making a List of Assets and Debts
Probate is essentially the process of paying off the debts of the deceased and distributing the assets to the people, trusts, and organizations they’re supposed to go to. To do that you need to know: what debts are out there; and what assets are out there? You need a financial blueprint.
The financial blueprint should include everything from utilities in the decedent’s name, to their mortgages, car notes, personal loans, tax obligations, etc. Assets on the financial blueprint would include any homes, farms, land, interests in businesses, vehicles, bank accounts, etc. Some assets might pass outside of probate. Life insurance and bank accounts often do not have to go through probate. Nevertheless, it is helpful to make a complete list and later determine what needs to go through the probate process.
5. Start the Paperwork
Probate is usually just a combination of paperwork and time. But it always requires lots of both. To probate a will you’ll need: a petition, the original will, a certified copy of the death certificate, and several documents for the Probate Judge to sign – Letters Testamentary, an Order Admitting the Will to Probate, and Notice to Publish the executor’s appointment. But you also might need an order setting a hearing, possibly a motion to appoint a guardian ad litem, a proof of will or proof of lost will, and others. It’s best to pass the responsibility of the paperwork off to a local attorney. If you are going to hire a lawyer, you can save time (and often, therefore, money) by having done the first four steps.
Where to learn more:
Some counties will have packets or even online resources that you can use to probate a will or administer an intestate estate. At the time of writing this, Tuscaloosa County does not have one available but has in the past. A good place to find forms would be in a local or law library in an Alabama property law book. Unless provided by a local or Alabama lawyer, online forms are probably not going to get the job done for you.
If you need help moving an estate through probate, we can help. Our lawyers are local and can help families both where there was a will and where there was not. Talk to Browne House Law about a case evaluation.