How is an Estate Opened up When Someone Dies?

What happens after someone dies in Alabama? After their death, all of their possessions and assets become accounted for and collected. The possessions and assets of the deceased come together as an estate. The deceased descendants will receive the assets as equally as possible. A person can either die intestate (with no will) or testate (with a will).

Intestate Succession

What is intestate succession? This is when someone dies without a will. When this occurs, Alabama laws of intestacy will take effect. The probate court will distribute the decedent’s estate according to the sections listed below.

Interstate Share of the Spouse (Section 43-8-41)

1. If there is no surviving issue or parent of the decedent, the entire intestate estate.
2. No surviving issue, but the decedent parent or parents are alive:
   • The first $100,000.00 in value, plus one-half of the balance of the intestate estate
3. If there are surviving issue all of whom are issue of the surviving spouse also:
   • The first $50,000 in value, plus one-half of the balance of the intestate estate
4. If there are surviving issue of one or more of whom are not issue of the spouse:
   • one-half of the intestate estate.

Interstate Share of Heirs Other Than Surviving Spouse (Section 43-8-42)

If there is no passing to the surviving spouse under section 43-8-41, then it passes to the heirs. The entire intestate estate if there is no surviving spouse, passes as follows:

1. To the issue of the decedent:
   • If they are all of the same degree of kinship to the decedent they will take equally
   • If of unequal degree, then those of more remote degree take by representation
2. To the deceased parent or parents equally, if there is no surviving issue.
3. There is no surviving issue, parent or issue of a parent, to the issue of the parent or either of them by representation.
4. No surviving issue, parent or issue of a parent, but the decedent grandparents or issue of grandparents are alive:
   • Half of the estate passes to the paternal grandparents if both survive
   • Or to the surviving paternal grandparents if both are deceased
   • The issue takes equally if they are all of the same degree of kinship to the decedent.
   • If of unequal degree those of more remote degree take by representation. The other half passes to the maternal relatives in the same manner.
5. If there are no surviving grandparent or issue of grandparent on either the paternal or maternal side:
   • The entire estate passes to the relatives on the other side in the same manner as the other.

Requirement that heir survive decedent for five days (Section 43-8-43)

Any person who fails to survive the decedent by five days, predeceases the decedent for purposes of homestead allowance. Exempt property, intestate succession, and the decedent’s heirs are then determined. If the time of death of the decedent or of the other person who would otherwise be an heir, becomes undetermined and unestablished:

1. The person who would otherwise be an heir has survived the decedent by five days, is deemed that the person failed to survive for the required period.

If representation takes place in division or estate (Section 43-8-45)

1. The estate divides into as many shares as there are surviving heirs in the nearest degree of kinship.
2. The deceased persons in the same degree who left issue who survive the decedent:
   • Each surviving heir in the nearest degree receives one share.
   • The share of each deceased person in the same degree divides among the issue of such deceased heirs in the same manner.

Testate Succession

If a person passed away testate, then they died with a will. After their death, the will must be probated in order. This starts with a clear title, distribution of assets, paid liabilities, and finally the estate closes. In the will, a person will be appointed as the executor or administrator of the estate. No person may qualify as an executor who is:

1. Under the age of 19 years
2. Anyone who has been convicted of an infamous crime
3. Someone who is incompetent to discharge the duties of will

A probate action must be done in the county where the decedent was a resident within five years of their death. If the decedent passed away with a will or other probate instrument, the probate court will:

1. Distribute the assets
2. Pay liabilities
3. Close the estate

This is only an overview of how probate works generally but the more specific ins and outs of how the process works can vary from one local court to the next. Of course, you should always seek a local attorney for more accurate information on how probate works where you live. If you live in Morgan County, Alabama then you should not talk to a lawyer who doesn’t regularly practice in the probate court there. A divorce lawyer in Decatur will not be able to help you most likely since probate law is such a unique area of practice and the paperwork, filing requirements, and procedural rules can vary with the local courts. However, in general, these laws of testate vs. intestate succession are generally uniform throughout Alabama.