What is the difference between testate and intestate?

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When a loved one passes away, it is a sad experience that causes an emotional time in our lives. Dealing with estate administration can be difficult to handle during these times. The stress of planning legal and financial issues may be something you cannot bear.

However, the process can be made to be more efficient with the help of an attorney. With our experienced legal counsel by your side, we can guide you along the planning while remaining compassionate to your needs. You should not have to carry this burden alone.

A will is a legal document that ensures a person’s wishes regarding their estate after they die. Probate proves the legality of the will and allows the court to distribute the assets described. Testate means that a person dies with a valid will. The will has gotten the proper documentation and the Surrogate Court will oversee the probate of the will. If it is contested, it may be sent to the Superior Court. On the other hand, if a person dies without a will, they died intestate.

When do I start the probate process?

Probate may not begin until 11 days after the death of the individual. The original will and death certificate may be filed at this time. It should be filed with the Surrogate Court in the county where the deceased lived at the time of death. The filing of the papers may be done by the executor of the will, any heirs, spouses, creditors or anyone else with a property right or claim against the estate.

The executor is the representative that has the legal responsibility to take care of the deceased person’s remaining financial obligations. They may be named in the will specifically or appointed by the court. Some of their responsibilities include providing accounting to the court, paying outstanding debts and taxes and collecting, protecting and distributing assets according to the will’s specification. If you have been assigned as an executor, it is a serious task to take on.

You may want to seek our legal counsel to ensure the tasks are done thoroughly. During times of death, it may be hard to focus and think clearly. We can help provide a clear state of mind to ensure everything is done properly.

What happens if someone dies intestate?

When someone dies intestate (without a will) in Alabama, their property and assets that would have passed through the will are divided among surviving relatives according to the state’s intestacy laws. Who gets what is determined by which surviving relatives the decedent has. Here are the most common scenarios:

  • If the person dies with children but no spouse, the children inherit everything.
  • If the person dies with a spouse but no children or parents, the spouse gets everything.
  • If the person dies with a spouse and children who belong to their spouse, the spouse receives the first $50,000 of intestate property and 50% of the remaining estate. The other 50% (of the remaining estate) is split up between the surviving children.
  • If the person dies with a spouse and children who do not belong to their spouse, then the spouse receives 50% of the intestate property and the other 50% is divided among the children.
  • If the person dies with a spouse and parents but no children, the spouse receives the first $100,000 of intestate property and 50% of the remaining estate. The parents receive the other 50% of the remaining estate.
  • If the person dies with parents but no children or spouse, then the parents inherit everything.
  • If the person dies with siblings but no parents, children, or spouse, then the siblings inherit everything.

There is a point at which the property and assets of someone who dies intestate end up going to the state of Alabama, but this is a pretty rare occurrence. This would only happen if the person has no surviving family, including grandparents, grandchildren, nieces, nephews, aunts, uncles, and cousins.

If you have a close relative who died without a will, you will almost certainly need to work with a probate attorney to ensure that the estate is settled properly. The first step is usually for the court to appoint in administrator from a list of eligible surviving relatives. Normally this role would first go to the spouse (if there is one), then to one of the children, and so on.

Contact Our Established Alabama Law Firm

Stone Crosby, P.C. has proudly served clients in Alabama for over 100 years. Our firm has experience handling matters including divorce and family law, estate planning and administration, business law, employment law, class actions, consumer protection, business law, real estate law, among many others. If you require quality legal representation, contact our firm today to schedule a consultation.