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Probate Law From Start To Finish
Birmingham Bar Association
May 21, 2004
Filing Requirements, Special Procedures and Pitfalls
By: Patricia Yeager Fuhrmeister
Shelby County Judge of Probate
Disclaimer: The material contained herein is provided as a service for educational
purposes and should not be relied on as legal advice. The Birmingham Bar Association
has permission to post these materials on its web site.
GENERAL CONSIDERATIONS
A. JURISDICTION OF THE PROBATE COURT:
1. The Probate Court has original and general jurisdiction over the following
matters (Ala. Code § 12-13-1):
(a) Probate of Wills;
(b) The granting of Letters Testamentary and Letters of
Administration and the revocation of same;
(c) All controversies in relation to the right of executorship or of
administration;
(d) The settlement of accounts of executors and administrators;
(e) The sale and disposition of real and personal property belonging to
and the distribution of intestate's estates;
(f) The appointment and removal of guardians for minors and persons
of unsound minds (note: this would include conservators as well);
(g) All controversies as to the right of guardianship and the settlement
of guardian's (conservator's) accounts;
(h) The allotment of dower in land in the cases provided by law
(outdated concept);
(i) The partition of lands within their counties;
(j) The change of name of persons residing in their county (including
minors, but special procedures and requirements exist pursuant to
local court practice and Attorney General opinion);
(k) Any other case where jurisdiction is given by law, including but
not limited to the following:
(1) Eminent Domain (Ala. Code §18- 1A- 1 through 311);
(2) Private Condemnation (Ala. Code § 18-3-1 through 22);
(3) Adoption Proceedings (Ala. Code §26-10A-1 through
38);
(4) Involuntary Commitment Proceedings (Ala. Code §22-
52-1.1 through 93);
(5) Legitimations (Ala. Code §26-11-1 through 3).
2. All orders, judgments and decrees of probate courts are accorded the same
validity and presumptions which are accorded to judgments and orders of
other courts of general jurisdiction (Ala. Code §12-13-1 (c);
3. Equity jurisdiction exists only in the probate courts of Jefferson County
and Mobile County (pursuant to population-based local acts). Legislation
has been passed which will allow a vote on a constitutional amendment to
provide equity jurisdiction in Shelby County;
4. The Probate Court has the power to enforce its decrees and orders and to
punish for contempt (Ala. Code § 12-13-9);
5. The Chief Clerk of the Probate Court has broad statutory powers and
authority in uncontested cases (Ala. Code § 12-13-14).
B. RULES AND PROCEDURES:
1. The Alabama Rules of Civil Procedure do not apply in the probate courts
(except those exercising equitable jurisdiction) except where specifically
provided (Alabama Rules of Civil Procedure Rule 1(a));
2. The Alabama Rule of Civil Procedure do apply in numerous proceedings
designated by statute (usually with a caveat such as: "unless specifically
provided to the contrary"):
(a) Adoption Proceedings (Ala. Code §26-10A-37);
(b) Guardianship/Conservatorship Proceedings (Ala. Code§26-2A-33);
(c) Condemnations-The Rules apply "except as otherwise provided..."
AND "...the procedure in the probate courts shall be as provided
in this chapter." (Ala. Code §18-1A-70), and the rules of
evidence "...as supplemented by this article..." apply (Ala. Code
§18-1A-190);
(d) No statute providing blanket applicability, but the rules of evidence
are applicable unless specifically displaced (Ala. Code §43-8-6),
and to the extent not otherwise provided, the Rules do apply in will
contests (Ala. Code §43-8-194).
3. In General: The provisions of the code in reference to evidence, pleading
and practice, judgments and orders in the circuit court, so far as the same
are appropriate, and the mode of obtaining evidence by oral examination
or by deposition and of compelling the attendance of witnesses and of
enforcing orders and judgments, in the absence of express provision to the
contrary, are applicable to the proceedings in the probate court (Ala. Code
§12-13-12).
APPEALS, REMOVALS AND TRANSFERS
A. REMOVAL:
1. The administration of any estate may be removed from the probate court
to the circuit court at any time before a final settlement thereof, by any
heir, devisee, legatee, distribute, executor, administrator or administrator
with the will annexed of any such estate, without assigning any special
equity; and an order of removal must be made by the court, upon the filing
of a sworn petition by any such heir, devisee, legatee, distribute, executor,
administrator or administrator with the will annexed of any such estate,
reciting that the petitioner is such heir, devisee, legatee, distribute,
executor, administrator or administrator with the will annexed and that, in
the opinion of the petitioner, such estate can be better administered in the
circuit court than in the probate court (Ala. Code §12-11-41). (Note that
the petition is filed in circuit court, not probate court, after administration
has begun, and before the probate court has taken steps toward final
settlement (unless equity is required and removal is necessary after
settlement is begun -see Ex parte Clayton, 514 So. 2d 1013 (Ala. 1987);
2. The administration or conduct of any guardianship or conservatorship of a
minor or incapacitated person may be removed from the probate court to
the circuit court, at any time before the final settlement thereof by the
guardian or conservator of such guardianship or conservatorship, or
guardian ad litem or next friend of such ward or anyone entitled to support
out of the estate of such ward without assigning any special equity, and an
order of removal must be made by the court or judge upon the filing of a
sworn petition by any such guardian or conservator or guardian ad litem or
next friend for the ward or such person entitled to support out of the estate
of such ward, reciting in what capacity the petitioner acts, and that in the
opinion of the petitioner such guardianship or conservatorship can be
better administered in the circuit court that in the probate court (Ala. Code
§26-2-2);
3. Once a case is removed (as opposed to transferred), the case will remain in
circuit court;
4. Do not confuse removal with appeal or complaint for will contest. The
rules for each must be strictly applied.
B. TRANSFERS:
1. Adoptions:
(a) if any party whose consent is required fails to consent or is unable
to consent, the proceeding will be transferred to the court having
jurisdiction over juvenile matters for the limited purpose of
termination of parental rights (Ala. Code §26-10A-3) (Note that
consent may be implied in the probate court in the absence of an
express consent-Ala. Code §26-10A-9);
(b) on motion of any party or the court, a contested adoption hearing
may be transferred to the court having jurisdiction over juvenile
matters (Ala. Code §26-10A-24(e);
(c) if, during the pendency of an adoption proceeding, it is determined
that another custody action is pending in another court in this state
or any other state or country, any party or the court may move to
stay the proceedings until a determination has been made by an
appropriate court with jurisdiction pursuant to the Uniform Child
Custody Jurisdiction Act (UCCJA) or the Parental Kidnapping
Prevention Act (PKPA) , or, the adoption may be transferred and
consolidated with a custody proceeding pending in any court in
this state (Ala. Code §26-10A-21).
2. Will Contests:
(a) upon the demand of any party to the contest, made in writing at the
time of filing the initial pleading, the probate court must enter an
order transferring the contest to circuit court (Ala. Code §43-8-
198);
(b) the case will be remanded to probate court upon disposition of the
contest.
C. APPEALS:
1. General Rule: An appeal lies to the circuit court or Supreme Court from
any final decree of the probate court, or from any final judgment, order or
decree of the probate judge; and, in all cases where it may of right be
done, the appellate court shall render such decree, order or judgment as the
probate court ought to have rendered (in the absence of a specific
provision to the contrary) (Ala. Code §12-22-20); the appeal is not de
novo in either court, and where the evidence is presented ore tenus, the
probate court's finding will not be disturbed on appeal unless plainly
wrong or manifestly unjust (Sanders v. Brooks, 611 So. 2d 336 (Ala.
1992); see Alabama Rules of Appellate Procedure for appeals to the
Supreme Court;
2. Adoptions: Appeals from any final decree of adoption shall be taken to
the Alabama Court of Civil Appeals and filed within 14 days of the final
decree (Ala. Code §26-10A-26); this is not a de novo appeal;
3. Condemnations: Any of the parties to a condemnation may appeal from
the order of condemnation to the circuit court of the county within 30 days
from the making of the order of condemnation by filing in the probate
court rendering the judgment a notice of appeal, a copy of which shall be
served on the opposite party or his attorney, and the trial shall be de novo
(Ala. Code §18-1A-283);
4. Involuntary Commitments: An appeal from an order of the probate court
granting a petition to commit lies to the circuit court for a trial de novo
unless the probate judge is learned in the law, in which case the appeal lies
to the Alabama Court of Civil Appeals on the record, and not de novo;
notice of appeal must be given in writing to the probate judge within 5
days after the respondent has received actual notice of the granting of the
petition to commit (Ala. Code §22-52-15);
5. Miscellaneous orders: Appeal from the order, judgment or decree of the
probate court may be taken by the party aggrieved to the circuit court or
Supreme Court in the cases hereinafter specified. Appeals to the Supreme
Court shall be governed by the Alabama Rules of Appellate Procedure,
including the time for taking an appeal. Appeal to the circuit court in such
cases shall be within the time hereinafter specified:
(a) from the decree, judgment or order on a contest as to the validity of
a will, to be taken within 42 days after the determination of the
contest;
(b) from the decree, judgment or order on an application claiming the
right to administer an estate, to be taken within 42 days after the
hearing and decision of such application, unless the application
was denied because the applicant was deemed unfit to serve by
reason of a conviction of an infamous crime or by reason of
improvidence, intemperance or want of understanding, in which
case the appeal must be taken within seven days from the denial of
the application;
(c) upon any decree, judgment or order removing an executor or
administrator, in which case the appeal must be taken within seven
days after such decree, judgment or order;
(d) by a legatee or person entitled to distribution, on the decision of
the court, in proceedings instituted to compel the payment of a
legacy or distributive share, at any time within 42 days after such
decision;
(e) after a final settlement, upon any order, judgment or decree, made
on such settlement, or respecting any item or matter thereof, or any
previous settlement or item, or matter thereof, within 42 days
thereafter;
(f) upon any issue as to the insolvency of an estate and upon any issue
as to an allowance of any claim against insolvent estates, in which
cases the appeal must be taken within 42 days after the
determination of such issue;
(g) on an application for a division or partition of real or personal
property, in which case the appeal must be taken within 42 days,
and the decree, judgment or order may be stayed upon the
execution, within 14 days, of a supersedeas bond, payable to the
appellee, in an amount and upon condition to be prescribed by the
probate judge, such stay of execution to continue until the appeal is
decided;
(Ala. Code §12-22-21);
6. Specific Provisions:
(a) on a judgment on a contested claim against an estate rendered by
the probate court, the appeal lies to the circuit court and must be
filed within 30 days of the rendition of the judgment; the trial is de
novo, and, upon demand of either party filed in the circuit court
within 30 days of taking an appeal, shall be by jury (Ala. Code
§43-2-354);
(b) upon the contest of a will removed from the probate court of the
county in which it was propounded to the probate court of another
county for trial, the appeal lies to the Supreme Court (Ala. Code
§12-22-23).
SPECIAL PROBLEMS RELATING TO ESTATES
A. WILL CONTESTS:
1. A will, before the probate thereof, may be contested by any person
interested therein, or by any person, who, if the testator had died intestate,
would have been an heir or distribute of his estate, by filing in the court
where it is offered for probate allegations in writing that the will was not
duly executed, or of the unsoundness of mind of the testator, or of any
other valid objections thereto; and thereupon an issue must be made up,
under the direction of the court, between the person making the
application, as plaintiff, and the person contesting the validity of the will,
as defendant; and such application must, on application of either party, be
tried by a jury (Ala. Code §43-8-190);
2. See Ala. Code §43-8-198 for transfer of contest to circuit court;
3. Any person interested in any will who has not contested the same before
its admission to probate may, at any time within six months after the
admission of such will to probate in this state, contest the validity of same
by filing a complaint in the circuit court of the county in which such will
was probated (Ala. Code§43-8-199); trial may be by jury;
4. After the expiration of six months, the validity of a will can only be
contested by infants and persons of unsound mind who had no legal
guardian at the time the will was admitted to probate, or who were not
represented by a guardian ad litem, who are allowed 12 months after the
appointment of a guardian, or, if none be appointed, 12 months after the
termination of their respective disabilities in which to contest such will,
but in no case to exceed 20 years from the time the will was admitted to
probate; and also provided there has not been one contest instituted and
prosecuted to final judgment in the circuit court as provided for in § 43-8-
199 and§43-8-200; in which case the final judgment of the circuit court,
court of civil appeals or supreme court shall be final and conclusive
against all parties (Ala. Code §43-8-201).
B. EXECUTION, ACKNOWLEDGMENT AND PROOF:
1. Except as provided in §43-8-135, every will shall be in writing signed by
the testator or in the testator's name by some other person in the testator's
presence and by his direction, and shall be signed by at least two persons
each of whom witnessed either the signing or the testator's
acknowledgment of the signature or of the will (Ala. Code §43-8-131);
2. Self-proved will requires language in substantially the statutory form, and
acknowledgment by a notary of both the testator's signature and that of
both witnesses (Ala. Code §43-8-132); lack of the notary's seal prevents
the will from being admitted as self-proving (Ex parte Helms (2003 WL
21362991) ;
3. A written will is valid if executed in compliance with Alabama law or in
compliance with the law at the time of execution of the place where the
will is executed, or with the law of the place where at the time of
execution or at the time of death the testator is domiciled, has a place of
abode or is a national (Ala. Code §43-8-135);
4. A will is revoked by a subsequent will which revokes the prior will; or by
being burned, torn, cancelled, obliterated, or destroyed, with the intent and
for the purpose of revoking it by the testator or by another person in his
presence by his consent and direction (consent must be proved by two
witnesses if someone other than the testator destroys the will (Ala. Code
§43-8-136); a will is also revoked as to dispositions to a spouse upon
divorce or annulment (Ala. Code §43-8-137);
5. A lost will can be probated, but the contents must be proved by witness
and the presumption of revocation must be overcome (see Barksdale v.
Pendergrass, 319 So.2d 267 (Ala 1975); Mcgriff v. Owen, 791 So.2d 961
(Ala Civ App 2000));
6. Wills must be proved by one or more of the subscribing witnesses, or if
the witnesses are "dead, insane or out of the state or have become
incompetent since the attestation" then by proof of the handwriting of the
testator and that of one of the witnesses. Where there is no contest, the
proof of only one witness is required (Ala. Code §43-8-167), and, where
witnesses reside out of state or are physically incapacitated, the judge of
probate may issue a commission to take testimony of such witness in proof
of the will (Ala. Code §43-8-169).
C. SUMMARY DISTRIBUTION OF SMALL ESTATES (Ala. Code§43-2-692):
1. Value of estate cannot exceed $3,000.00 and must consist of personal
property only;
2. Funeral expenses must have been paid or arrangements made;
3. Other claims paid or arrangements made;
4. Publication;
5. Right exists in favor of surviving spouse or distributee under will.
D. EXEMPTIONS AND ALLOWANCES:
1. Homestead allowance of $6,000.00 payable to spouse, or, if no spouse, to
minor or dependent children (Ala. Code §43-8-110);
(a) may be set aside from cash, personalty or real property;
(b) may be granted without administration of estate;
2. Exempt property in the amount of $3,500.00 payable to spouse, or, if no
spouse, children, including adult children (Ala. Code §43-8-111);
(a) may be set aside from cash, personalty or real property;
(b) may be granted without administration of estate;
3. Family allowance consists of reasonable allowance in favor of spouse
and/or minor or dependent children for their maintenance during the
administration of estate (Ala. Code §43-8-112);
(a) award is discretionary;
(b) payable as a lump sum or monthly;
(c) limited to $500.00 per month for 12 months or $6,000.00 in a lump
sum at discretion of personal representative; higher amounts
require court approval.
E. UNIFORM DISCLAIMER OF PROPERTY INTERESTS:
1. Disclaimer must be in writing, describe the property or interest
disclaimed, declare the disclaimer and extent thereof, and be signed by
the disclaimant (Ala. Code §43-8-293);
2. May be filed by a natural person, a representative of a deceased,
incapacitated person, protected person, incompetent or ward (Ala. Code
§43-8-291);
3. Must generally be filed in the probate court of the county where the
decedent's estate is being or could be probated within 9 months after
death, and must be delivered to the personal representative of decedent's
estate (Ala. Code §43-8-292);
4. The right to disclaim is barred by an assignment, conveyance, pledge or
transfer, a written waiver of the right to disclaim, an acceptance of the
property or a benefit thereunder, or a sale under judicial sale made before
the disclaimer (Ala. Code §43-8-295);
5. EFFECT OF DISCLAIMER: Property devolves as if disclaimant
predeceased the decedent (Ala. Code §43-8-294); this is not always the
intended result, so caution should be used in distinguishing between an
assignment (which may provide no tax benefits, but the disposition of
which is controlled by the assignor) and a disclaimer (which may provide
tax benefits, but the disposition of which is controlled by statute).
