Why Having a Last Will and Testament Does Not Mean You Can Avoid Probate Court

A common misconception about estate planning in Alabama is the belief that simply having a Last Will and Testament means your estate will not have to go through the probate court for estate administration. Many people think that once they draft and sign a Will, their loved ones will be able to immediately divide property, close accounts, and distribute assets without any further legal proceedings. Unfortunately, this is not the case. Even with a properly executed Will, Alabama law requires a person to go through the probate court to appoint an executor and provide a structured process for paying debts and distributing assets.

 

Understanding why probate is still necessary—and what exactly happens during probate—is an important step in planning for the future. Below we explain why having a Will does not eliminate the need for probate in Alabama, and what families can expect from the process.

 

1. The Purpose of Probate in Alabama

 

Probate is the legal process through which a court oversees the administration of a deceased person’s estate. In Alabama, probate serves several essential purposes:

 

Verification of the Will: The probate court must confirm that the will presented is valid. Even if the will was properly signed and witnessed, the court has to ensure that it complies with Alabama’s statutory requirements and that it was not revoked or replaced by a later will, and give interested people the opportunity to object to the will's validity. 

 

Appointment of a Personal Representative: A will typically names an executor (sometimes called an "administrator" or "personal representative"), but that individual does not automatically have authority to act upon death. The probate court must formally appoint the executor, issuing what are known as “letters testamentary.” Without these letters, banks, title companies, and other institutions will not recognize the executor’s authority.

 

Providing a Forum for Creditors: One of the major roles of probate is to establish an official period where creditors can file claims against the estate. This ensures that debts and obligations of the deceased are properly addressed before assets are distributed to heirs and beneficiaries.

 

Orderly Distribution of Assets: Probate provides a structured legal process for transferring property, paying debts, and making sure the terms of the will are followed.

Without probate, there would be no court-supervised mechanism to confirm the will’s validity, handle creditors’ claims, or officially pass title to real property.

 

2. Why a Will Alone Is Not Enough

 

A last will and testament is a critical estate planning tool, but in Alabama it is essentially just a set of written instructions. Until the probate court admits the will to probate, those instructions have no legal effect.

 

For example, a will may say that your house goes to your daughter, your savings account goes to your son, and your personal belongings are divided among your grandchildren. But your daughter cannot sell or mortgage the house without the court’s authority; your son cannot simply walk into the bank and withdraw funds; and your grandchildren have no legal claim to any belongings until the probate process confirms these transfers.

 

In other words, the will tells the court what you wanted, but it is probate that makes those instructions enforceable.

 

3. The Probate Process in Alabama

 

Here is what typically happens in an Alabama probate case, even when a will is present:

 

Filing the Will: The person who has possession of the will must file it with the probate court in the county where the deceased lived. This petition asks the probate court to admit the will to probate and to appoint the executor named in the will.

 

Notice to Heirs and Creditors: The court issues notice to heirs, beneficiaries, and creditors. Creditors usually have six months to present claims against the estate.

 

Payment of Debts and Expenses: Before beneficiaries receive anything, the executor must use estate assets to pay funeral expenses, court costs, taxes, and valid creditor claims.

 

Distribution of Assets: Only after debts are resolved does the executor distribute remaining property in accordance with the will.

 

Even when everything is straightforward, this process usually takes months, and sometimes longer than a year if the estate is complex or if disputes arise.

 

4. Advantages of a Will

 

Although having a will does not mean you can avoid probate, there are still many reasons to have a will. For example:

• Without a will, your assets will go to your spouse and/or heirs in equal shares. Having a will allows you to leave specific items to certain people, or to make gifts to non-family members, such as your church or a charity. 
• You can avoid some of the filing and insurance requirements and other "red tape" that the probate court requires in the absence of a will. For example, a will can provide that the executor does not have to obtain a costly insurance bond or file regular inventories of assets with the court.
• The will can create a trust that becomes effective after your death where you can leave assets for the care and support of your children or other loved ones (or even a pet!).
• You can name your own choice of executor of the will (or the personal representative for wrongful death claims).

 

Having a last will and testament is extremely important, but it does not exempt an estate from probate. Probate is still required to verify the will’s validity, appoint an executor with legal authority, provide a venue for creditors to make claims, and ensure an orderly distribution of assets. The best approach is to view a will as one part of a broader estate plan. By combining a will with other planning tools, you can reduce the burdens of probate and give your loved ones a clearer path during a difficult time.