Estate Administration
Estate administration and the process of probating a will. This process begins when a probate estate is opened in the probate court. Next, the personal representative will obtain and manage estate assets, pay the estate debts and liabilities, and ensure the correct beneficiaries receive the remainder of assets after debts are paid.
A personal representative or executor of the estate normally has the right and responsibility to collect the assets of the Alabama probate estate and assume control of the decedent’s property or inventory. An inventory is a list of the decedent’s property at the time of death. The inventory will include each asset’s fair market value (FMV) on the date of the decedent’s death. The personal representative must file the inventory with the probate court within two months of the appointment. A decedent's will may waive the inventory requirement with the probate court, however the court has the discretion to require an inventory. Notice to the decedent’s creditors and debtors six months after the appointment of the personal representative. Notice is done by publication for three successive weeks in a county newspaper where the letters were granted.
After the court grants letters of administration or letters of testamentary all claimants have six months to file their claims against the estate.
Claims against the estate are paid in order of preference categories:
- funeral expenses;
- fees and estate administration charges;
- illness expenses (such as medical bills);
- taxes on the decedent’s estate prior to death;
- debts to employees for services rendered the year the decedent died;
- all other debts,
Finally, your probate attorney may proceed with closing the estate. Estate administration can be a complex process especially if there are more than one heirs in a large estate.
Wills
If a decedent’s dies with a will, it referred to as being a “testate estate”. Once a will is probated it must remain open for a minimum of six months.
If decedent dies without a will, it is referred to as being an “intestate estate”. An estate can still be opened and “administered” and must remain open for six months.
However, when a will is not self-proved, its heirs include minors and/or incapacitated persons, or when the location of one or more of the decedent’s next-of-kin is unknown, a hearing must be held prior to administered or probated. The law requires that a GAL be appointed to represent minor heirs or incapacitated heirs for the hearing.
Once a will is probated, a decedent’s estate, referred to as being a “testate estate,” must remain open for a minimum period of six months. If an individual dies without a will, which is referred to as being an “intestate estate”, an estate can still be opened and “administered”. The same six month minimum period for the estate to remain open applies.
Health Care Directives
In the case of an emergency or in the event you lose capacity to make decisions for yourself health care directives allow you to clearly explain the medical care you would like to receive or avoid. Health care directives give you the power and control to make sure your wishes are carried out. For example, if you become incapacitated due to a tragic car accident someone other than you would need to carry out your healthcare wishes. We would urge you to not leave loved ones or doctors without any direction over matters that pertain to your health. A health care directive or living will give you and your loved one’s peace of mind in a stressful situation.
First, you must specifically create a health care directive document that names the trusted individual who will speak on your behalf for your medical care. Second, you will want to create a living will, which will include your specific medical wishes and preferences. These may include issues such as the following:
- Ventilator support
- Surgical decisions
- CPR
- Blood transfusions
- Life support
It is important to take legal steps to protect your wishes, even in the event of incapacity. If you do not want unnecessary treatment or procedures performed on you, it would be helpful to include that information in a health care directive. You want to make sure you select a person in your health care directive whom you trust to faithfully carry out your wishes. That person and your doctor will be legally obligated to do so and may face consequences if they do not.
Power of Attorney
A Power of Attorney (POA) is an important legal document that is beneficial to individuals with both business needs or personal health concerns. It authorizes someone else to act for you in the event of your incapacity while you are still living. When you die the POA is void. In a POA you select someone known as the agent or attorney-in-fact who makes decisions on your behalf. You can authorize your agent or attorney-in-fact to take certain actions for you, such as paying your bills, filing your tax returns, and selling your real estate for money to pay for your long-term healthcare.
Durable Power of Attorney
A durable power of attorney continues to hold legal effect after you become incapacitated to the point of being unable to communicate your wishes to a general POA. This document allows you to specify a primary and alternate agent (also called “attorney-in-fact”) who will transact business on your behalf in the event you become disabled or incapacitated. The durable POA is another preventative tool that reduces stress on your family. The durable POA dies when its principal dies.
If you have questions about executing a durable power of attorney or regular power of attorney for a general or specific purpose, please call Edwards and Edwards.
Guardianship
A guardian is appointed by the probate court for the personal care and health of an individual who is an incapacitated adult (19 or older). The incapacitated person is called the “ward”. The probate court will consider the following persons to serve as a guardian for a ward in need of a guardian:
- Person named in a durable POA
- Spouse or spouse’s nominee
- Adult child
- Parent of parent’s nominee
- Relative with whom person has lived with the previous 6 months
- Nominee of caretaker of person
The duties and powers of a guardian include: taking reasonable care of ward’s personal effects; reporting the condition of the ward to the court; may consent to medical care; may use the ward’s money for current needs or health, support, education and maintenance; protects excess money; may take custody of ward and establish a home; assumes responsibilities of a parent regarding support, care, and education; may receive limited funds for support of ward; may compel payment of support; and may consent to marriage or adoption; may delegate certain responsibilities to the ward for the decision making. The Probate Court has discretion to limit powers of the guardianship.
In Alabama to request a guardianship requires the following steps: a filed petition for appointment of guardian; an appointment of a guardian ad litem to represent an alleged incapacitated person; an examination by a physician; an appointment of the court’s representative; a hearing; jury at hearing if demanded; bond, if necessary; order granting petition; inventory of property for guardian; and letters of guardianship granted by court.
Conservatorship
A conservator is a person appointed by the probate court to manage the property of a minor or incapacitated person. The incapacitated person is called the “ward”.
The ward is someone who is unable to manage property and business affairs because of a mental illness, mental deficiency, chronic intoxication, chronic use of drugs, infirmities accompanying advanced age, physical illness, or other similar reasons.
A family member or any interested person may serve as a conservator. The probate court will consider the following persons for an appointment as a conservator:
- A conservator appointed in another jurisdiction
- Person selected by the incapacitated person
- Person designated by incapacitated person’s POA
- Spouse
- Adult child
- Parent
- Relative with whom ward has lived with in the last six months
- Nominee of person caring for incapacitated person
- General guardian of sheriff
Conservatorships are resolved before the probate court usually require testimony and documentation to prove the ward’s incapacity. Appointment of a conservator requires a surety bond, which protects the assets of the minor or incapacitated person. The bond amount will depend on the amount of the assets in the estate. However, the bond requirement may be waived by a power of attorney. Once appointed, a conservator must complete an inventory of the estate immediately and file it with the court ninety (90) days after the appointment. Accountings to the court are required every three years. The probate court has the discretion to order an accounting more than every three years.
Adoption
Adoption is great experience for families and lawyers. There are many different types of adoptions including: family adoptions; grandparent adoptions; stepparent adoptions; international adoptions; foster child adoptions; and military adoptions.
However, most adoptions can involve complicated legal work. If you or someone you know are considering adopting a child, you need a skilled probate lawyer who has experience with adoption cases. Adoptions require a significant amount of paperwork. It’s important that your attorney knows this process well and is someone you can trust.
