After someone dies, who owns their real estate and other stuff?
In Alabama, two court processes exist to determine that question.
If someone dies without a Last Will, the rules for “intestate succession” control and the process is call Intestate Estate Administration.
On the other hand, if someone dies with a Last Will, the process is call Probate Administration. There is no requirement a Last Will be probated.
In fact, about 70% of cases we see in which a person has died, there is no good reason to probate the Last Will or Administer the Estate. As I say, probate is like knee-surgery; don’t do it unless there is a real need. Often, there are very few assets in the “probate estate.” Mind you: a lot of assets someone owns at death may not even pass through probate. For instance, for real estate titled as joint tenant with rights of survivorship, the survivor of the joint tenants gets the property regardless of the decedent’s Last Will. Life insurance is often another asset “passing outside probate;” the beneficiary designations trump any Last Will.
But often, real property is often the reason to probate and/or administer an estate. For instance, if a man dies owning property as sole title holder (“in fee simple” to be fancy), this is an occasion often needing to go through probate. This is because the public record is silent about (1) who the decedent’s proper heirs are, (2) the existence of possible creditors or claims against the decedent, and (3) estate tax obligations.
The probate process is a means of confirming who are the proper heirs and “scrubs” the real estate title of any creditor or tax claims. The heirs can receive the property with title of such lingering issues. Absent such “scrubbing,” a sale of the property would almost certainly be hindered from closing. The cloud on the title would be too great.
