Legal Matters
Probate is the court supervised process by which a decedent’s debts and taxes are paid, and a decedent’s assets are transferred to the decedent’s heirs. For people unused to legal terminology, a decedent is someone who has died.
Chapter 8 of Section 43 of the Code of Alabama is known as the Alabama Probate Code. That chapter has two underlying purposes and policies: first, to simplify and clarify the law concerning the affairs of decedents; and, second, to discover and make effective the intent of a decedent in the distribution of his property. The probate process is overseen by county probate courts.
In Alabama, there are two types of probate: intestate, where the decedent did not leave a will, and testate, where the decedent left a will. In intestate probate, when someone dies without a will, a decedent’s assets are distributed according to Alabama statutes. In a testate probate, the decedent’s assets are distributed according to the decedent’s intentions, as stated in the will. Also, the terminology of intestate and testate probates is different.
Testate probate provides the name for the entire process. The word probate likely derives from the Latin verb probare, meaning “to prove.” Testate probate is, quite simply, the process of proving a will. What does that mean? When a person executes a will, it is signed and witnessed. When a will is presented to a probate court, the court will want to verify that the will presented was properly executed, and is the will of the decedent. Only after the will is proven to the court’s satisfaction may the process move forward.
As part of the probate process, a probate court will appoint a personal representative to settle the decedent’s affairs. Personal representative is a general term that includes both administrators, who work with intestate estates, and executors, who work with testate estates. In this context, an estate is the property that belonged to the decedent. The court will grant the personal representative letters that show that the personal representative has the authority to act to settle the estate. After receiving those letters, the personal representative has the duty to use the decedent’s estate to pay any debts and taxes owed by the decedent and to distribute the remainder of the estate to the decedent’s heirs.
–Mitchell McNaylor
McNaylor Law, LLC
Shelby County, Ala.
205-419-7377
Watch the video below to learn more about probate.
