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the settlement of guardian's (conservator's) accounts; (h) The allotment of dower in land in the cases provided by law (outdated concept); (i) The partition of lands within their counties; (j) The change of name of persons residing in their county (including minors, but special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).