A Guide to Probate Litigation and Alabama's Probate Laws

If you have been or currently are in probate litigation, you know the importance of comprehending probate laws in helping you navigate the process. Read on to learn more about the probate litigation process, especially if you are an Alabama resident.

Overview

Probate litigation is a legal process that occurs when a dispute arises over a will or trust. A probate court handles probate litigation and will oversee execution and management of estates, guardianships, or conservatorships.

The probate court process begins when an executor or family member files a petition for probate. The plaintiff must present the will and a copy of the death certificate. The court will then identify the deceased's assets, decide on the payment of taxes and other expenses, and distribute the property among legal heirs according to the will.

When a person passes away without a valid will, the probate court distributes their assets to their next of kin according to the relevant state's probate laws, known as the law of intestate succession.

High-risk factors for probate litigation include sibling disagreements and dysfunctional family relationships. Also, partners from marriages without a prenuptial agreement are likely to initiate probate litigation.

In addition, non-standard estate plans, such as those that leave out a spouse or child, favor or disfavor children excessively, establish detailed trusts, or gift mistresses, can all increase the odds of probate litigation. Poorly appointed fiduciaries can also lead to probate litigation.

Alabama's Probate Laws

Most states have laws to protect a decedent's estate, ensuring that its assets are distributed fairly and according to the deceased's wishes. In Alabama, the probate process begins with the determination of whether the decedent left a valid will. If there is a valid will, the probate court looks to implement its instructions exactly as the decedent laid them out.

If the deceased did not leave a will, the court appoints an executor to oversee the intestate succession process. Sometimes, it may be possible to skip the probate process by claiming the estate as a small estate.

The amount of the intestate estate that goes to the decedent's spouse depends on whether the decedent had children, whether some of the children were from a relationship with another partner, and whether the decedent had any parents that were still alive.

Suppose all of the children are from marriage to the surviving spouse. In that case, the spouse receives the first $50,000 of the estate and half of whatever is left over, with the rest provided to the children. If the deceased bore children from another relationship in addition to the spouse's children, the spouse can only receive half of the estate, with the other half going to the children.

In Alabama, the law considers any child born within the bounds of a domestic partnership or marriage to be biologically that of both partners. A decedent's biological child adopted by another family becomes disinherited from the estate.

Stepchildren and foster children who lived with the decedent but whom the deceased adopted have no rights to the intestate estate. Illegitimate children hold the same rights to the intestate estate as any other biological child. Grandchildren are not automatic heirs if the decedent does not leave a valid will.

Probate litigation generates significant psychological and emotional disruption. Thus, you will require a separate entity with legal expertise to help you navigate this process. Consult a probate lawyer to help you secure your rights to the estate left by your loved one. Contact us at James W. Bodiford, Jr., Law Office for more details.