Full question:
All of the property etc in my husband and myself read x or y, land and house trailer documents read x and y.There is a bank account that does not have my name on it but my husband's will leaves everything to me and makes me executor of the will. Why then do I need to have a letter of testament to have excess to the money in the bank account in the amount of $4,354.00 without paying an attorney $1500. plus costs?
- Category: Wills and Estates
- Subcategory: Probate
- Date:
- State: Alabama
Answer:
Certain assets are not included as part of a person's estate and may pass outside of probate, such as transfer on death accounts or property owned by joint tenants which passes under a right of survivorship when one tenant dies. A bank account naming a beneficiary is generally a transfer on death asset that is not included as part of the probate estate that is governed by a will. It will pass directly to the named beneficiary.
In Alabama, where the value of the entire assets of the estate does not exceed $25,000, a small estate may be administered by a small estate affidavit. After the affidavit has been approved by the court, the affidavit may be used to collect debts owed to the decedent.
The affidavit is filed with the clerk of the court in the county where the deceased resided. It lists certain information required by statutes, such as all of the known assets and liabilities of the estate, the names and addresses of the distributees, and the relevant family history or other facts concerning heirship that show the distributees' rights to receive the money or property of the estate. Please see the information at the link below for statutes and specific requirements. A link to an heirship affidavit has also been provided.
Once approved by the court, the affidavit may be presented to those who owe debts to the deceased in order to collect the property or money owed. Policies regarding distribution without an affidavit vary by company policy. I suggest contacting the bank regarding use of an heirship affidavit to collect the funds.
Please see the following AL statutes:
§ 43-2-692. Petition for summary distribution; when
surviving spouse or distributee entitled to personal
property without administration.
(a) The surviving spouse, if there is one, otherwise the
distributees of an estate of personal property only, may
initiate a proceeding for summary distribution of the estate
by filing a verified petition in the office of the judge of
probate of the county in which the decedent was domiciled at
death alleging the conditions provided in subsection (b).
The petition shall include a description of the estate of
the decedent. No bond shall be required to be filed with the
petition.
(b) The surviving spouse or distributee shall have a
defeasible right to the personal property of the decedent
without awaiting the appointment of a personal
representative or the probate of a will if all of the
following conditions exist:
(1) The value of the entire estate does not exceed
twenty-five thousand dollars ($25,000). This figure shall be
adjusted annually for changes in the Consumer Price Index by
the State Finance Director who shall notify each judge of
probate of the newly adjusted figure.
(2) The decedent died a resident of this state.
(3) No petition for the appointment of a personal
representative is pending or has been granted.
(4) At least 30 days have elapsed since the notice of the
filing of the petition was published as hereinafter
provided.
(5) All funeral expenses of the decedent have been paid, or
alternatively, that arrangements for the payment out of the
estate of the decedent of all unpaid funeral expenses have
been made by the surviving spouse or other distributee.
(6) If the decedent died intestate, the awards due under
Alabama descent and distribution statutes to the surviving
spouse and to the child or children have been determined by
the judge of probate.
(7) If the decedent died testate, a document purporting to
be his or her will, which on its face, is properly executed,
witnessed, and attested in compliance with Alabama law, has
been duly filed in the office of the judge of probate.
(8) Notice of the filing of a petition for a summary
distribution under this division shall be published once in
a newspaper of general circulation in the county in which
the decedent was domiciled, or if there is no newspaper of
general circulation in the county, then notice thereof shall
be posted at the county courthouse for one week.
(9) All claims against the decedent's estate have been paid
or arrangements for the payment out of the estate of the
decedent have been made by the surviving spouse or other
distributee according to the following priority:
a. First, to each person entitled to payment for any funeral
expenses owed by the decedent or his or her estate.
b. To the judge of probate for fees and charges incurred in
the proceedings for summary distribution.
c. To any person entitled to payment for expenses incurred
in the decedent's last illness.
d. To the State of Alabama, the county, and any municipality
therein for taxes assessed on the estate of the decedent
previous to his or her death.
e. To each secured creditor.
f. To each unsecured lienholder.
g. To each remaining general unsecured creditor of the
decedent.
h. To each surviving spouse, child, or other distributee who
is entitled to take under Alabama's descent and distribution
laws, or, alternatively, to each devisee entitled to take
under any testamentary disposition of the decedent.
§ 43-2-694. Transfer of property or evidence of rights therein to
surviving spouse or distributees.
Upon delivering a copy of the judge's order for summary
distribution or an affidavit executed by any person having
knowledge of the fact and alleging the concurrence of the
conditions listed in subsection (b) of section 43-2-692 showing
the defeasible right therein, together with a copy of the
decedent's will if the claim is under such will, such spouse or
distributee shall be entitled to have the decedent's property
or the evidence of the decedent's ownership in such property
transferred to him by any person owing any money to the
decedent's estate, having custody of any personal property of
the decedent or acting as a registrar or transfer agent of any
evidence of interest, indebtedness, property or right of the
deceased therein.
§ 43-2-696. Effect of transfer pursuant to affidavit.
The person making payment, delivery, transfer or issuance of
personal property or evidence thereof pursuant to the affidavit
prescribed in section 43-2-694 shall be discharged and released
to the same extent as if made to a personal representative of
the decedent, and he shall not be required to see the
application thereof or to inquire into the truth of any
statement in the affidavit if made by any other person. If any
person to whom such affidavit is delivered refuses to pay,
deliver, transfer or issue any personal property or evidence
thereof, it may be recovered or its payment, delivery, transfer
or issuance compelled in an action brought for such purpose by
or on behalf of the person entitled thereto under
sections 43-2-692 and 43-2-695 upon proof of the defeasible right
declared by such sections. Any person to whom payment,
delivery, transfer or issuance is made shall be answerable and
accountable therefor to any personal representative of the
estate or to the surviving spouse or minor children of the
decedent who shall proceed against such person, or to any other
person having a superior right to the decedent's estate.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
