Birmingham, AL asked in Estate Planning, Family Law and Probate for Alabama

Q: How long do you have to start settling someone's estate

1 Lawyer Answer
James Blount Griffin
James Blount Griffin
  • Estate Planning Lawyer
  • Madison, AL
  • Licensed in Alabama

A: A will must be probated within five years in Alabama, or cannot be probated at all; you would then have to open the estate as if there had been no will. Also, if you don't get the estate open and moving, heirs might die and debtors might file for bankruptcy. If the people actually nominated in the will as executors all die, then you are stuck having to bond the administrator as if no executor had been appointed. Probate is slow enough as it is. Get started!

Once you open the estate, creditors have six months to file claims against the estate. All funds should be deposited in a special estate account segregated from all other funds; comingling estate funds with anyone else's money is an absolute no-no. For this reason, you should not distribute much of anything until those six months have passed.

If you are the executor, remember that the estate's priorities are: estate and court costs (including lawyer fees), funeral expenses, secured creditors, and finally, unsecured creditors. The heirs split the net proceeds and get nothing off the top except, in some cases, their reasonable expenses of caring for estate property, e.g., mowing grass, repairing doors and locks, etc.

If you open the estate, distribute cash to needy-sounding heirs, pay off the credit cards without paying the taxes, or sell property and don't pay off the creditors, you could be sued for "breach of fiduciary duty," that is, you misspent other people's money. You cannot even transfer the estate's real estate to the heirs in their respective shares until the six months have gone by; otherwise, a creditor could sue you as executor for taking their property.

Thus, be cautious, patient, and tough. Being an administrator of an estate is not for the weak.

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