DISCLAIMER: This article is for educational purposes only. It is not legal advice. Consult a qualified attorney about your specific situation.
Detailed Answer
Under Alabama law, certain real estate can pass outside of probate when ownership is structured to transfer automatically. Common methods include:
- Joint Tenancy or Tenancy by the Entirety: When property is owned with rights of survivorship, the surviving co-owner automatically absorbs the decedent’s share. No court action is required.
- Transfer-on-Death (TOD) Deeds: Under the Uniform Real Property Transfer on Death Act (Ala. Code § 35-12-210 et seq.), a property owner may sign a beneficiary deed that names who receives the real estate at death. See § 35-12-210: law.justia.com.
- Living Trusts: Real estate held in a revocable trust passes to named beneficiaries without probate.
Despite those options, any assets owned solely by the decedent—real or personal—that lack a survivorship feature or named beneficiary must go through probate. Probate is the court-supervised process of:
- Validating the will;
- Appointing a personal representative;
- Collecting assets;
- Paying debts and taxes;
- Distributing remaining property to heirs or devisees.
Alabama’s probate rules are found in Title 43, Chapter 8. For example, probate administration begins under Ala. Code § 43-8-1 et seq.: law.justia.com. If the estate qualifies as a “small estate” (total personal property below certain limits), you may use an affidavit procedure under Ala. Code § 43-8-280:
In short, automatic transfers handle only specifically defined property interests. Any leftover real estate or other assets without a built-in transfer mechanism must clear probate to ensure proper title transfer, creditor notice, and distribution under the will or Alabama intestacy rules.
Helpful Hints
- Review your deed for words like “joint tenants” or “with rights of survivorship.”
- Check if the decedent executed a Transfer-on-Death deed under Ala. Code § 35-12-230: law.justia.com.
- List all assets and debts to determine if estate assets remain outside automatic transfers.
- Consider the small estate affidavit if personal property totals under the statutory limit.
- Speak with a probate attorney when the estate holds real property or complex assets.