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title-43•Title 43 — Wills and Decedents’ Estates
All letters testamentary and of administration, general or special, and the bonds given by executors and administrators must be recorded by the judge of probate. Transcripts thereof, duly certified, are evidence in all the courts of this state to the same extent as if the originals were produced.
(Code 1852, §1695; Code 1867, §2016; Code 1876, §2378; Code 1886, §2036; Code 1896, §79; Code 1907, §2546; Code 1923, §5768; Code 1940, T. 61, §102.)
Whenever a will has been admitted to probate in this state, the judge of the court in which the will was probated may issue letters testamentary, according to the provisions of this article, to the persons named as the executors in such will, if they are fit persons to serve as such.
(Code 1852, §1657; Code 1867, §1975; Code 1876, §2339; Code 1886, §2003; Code 1896, §45; Code 1907, §2507; Code 1923, §5729; Code 1940, T. 61, §68.)
Letters testamentary may be substantially in the following form: The State of Alabama, }Court of Probate___________ County}
The will of ______, having been duly admitted to record in said county, letters testamentary are hereby granted to _____, the executor named in said will, who has complied with the requisitions of the law and is authorized to take upon himself or herself the execution of such will.
Witness my hand and dated this _____day of ___, 20.
____________ Judge of Probate.
(Code 1852, §1687; Code 1867, §2007; Code 1876, §2369; Code 1886, §2005; Code 1896, §47; Code 1907, §2509; Code 1923, §5731; Code 1940, T. 61, §70.)
(a) No person must be deemed a fit person to serve as executor who is under the age of 19 years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence, or want of understanding, is incompetent to discharge the duties of the trust. Nor shall any nonresident of the state be appointed as administrator unless he or she is at the time executor or administrator of the same estate in some other state or territory or jurisdiction, duly qualified under the laws of that jurisdiction.
(b) If the person named in the will as sole executor is or if all the persons named therein as executors are, from any of the causes enumerated in subsection (a), unfit to serve as executor or executors, letters of administration, with the will annexed, may be granted on the testator’s estate, under the provisions of Section 43-2-27.
(Code 1852, §§1658, 1659; Code 1867, §§1976, 1977; Code 1876, §§2340, 2341; Code 1886, §§2004, 2006; Code 1896, §§46, 48; Code 1907, §§2508, 2510; Code 1923, §§5730, 5732; Code 1940, T. 61, §§69, 71.)
It shall not be necessary, in order for letters testamentary to issue to a married woman, for her husband to consent thereto; and the husband shall not be responsible for her acts.
(Code 1852, §1660; Code 1867, §1978; Code 1876, §2342; Code 1886, §2007; Code 1896, §49; Code 1907, §2511; Code 1923, §5733; Code 1940, T. 61, §72.)
If the disability of a person under age or of a married woman named as executor in any will is removed before the administration of such will is completed, such person is entitled to supplementary letters testamentary, to be issued in the same manner as original letters, and shall thereupon be authorized to join in the execution of such will with the persons previously appointed.
(Code 1852, §1661; Code 1867, §1979; Code 1876, §2343; Code 1886, §2008; Code 1896, §50; Code 1907, §2512; Code 1923, §5734; Code 1940, T. 61, §73.)
Any person named as executor in a will may renounce such appointment by appearing before the judge of probate and declaring such renunciation, which must be entered of record; or such person may renounce his appointment by an instrument in writing executed by him and acknowledged before an officer authorized to take and certify acknowledgments to conveyances, whether within or beyond the state; and such instrument must be filed and recorded in the office of the judge of probate of the county in which the will is probated.
(Code 1852, §1662; Code 1867, §1980; Code 1876, §2344; Code 1886, §2009; Code 1896, §51; Code 1907, §2513; Code 1923, §5735; Code 1940, T. 61, §74.)
If any person named as executor in the will renounces his or her appointment or fails to apply for letters testamentary within 30 days after probate and any other persons named therein as executors make application for such letters and are fit persons to discharge the trust, letters testamentary must issue to them if they comply with the other requisitions of the law.
(Code 1852, §1663; Code 1867, §1981; Code 1876, §2345; Code 1886, §2010; Code 1896, §52; Code 1907, §2514; Code 1923, §5736; Code 1940, T. 61, §75.)
If no person is named in the will as executor, or if named executors, one or more, all renounce or fail to apply within 30 days after probate or are unfit persons to serve, the residuary legatee, or if he or she fails to apply within such time, refuses to accept or is unfit to serve, then the principal legatee, is entitled to letters of administration, with the will annexed; and, if both residuary and principal legatees fail to apply within such time, refuse to accept or are unfit to serve, then such letters may be granted to the same persons and in the same order as letters of administration are granted in cases of intestacy.
(Code 1852, §§1664, 1665; Code 1867, §§1982, 1983; Code 1876, §§2346, 2347; Code 1886, §2011; Code 1896, §53; Code 1907, §2515; Code 1923, §5737; Code 1940, T. 61, §76.)
No executor of an executor can, as such, administer on the estate of the first testator; but on the death of a sole or surviving executor, letters of administration with the will annexed may be granted to the persons entitled thereto, as in any case in which a sole executor has renounced his or her appointment.
(Code 1852, §1666; Code 1867, §1984; Code 1876, §2348; Code 1886, §2012; Code 1896, §54; Code 1907, §2516; Code 1923, §5738; Code 1940, T. 61, §77.)
(a) If, after letters of administration have been granted as in case of intestacy, any will is proved and the executor therein named appears, claims letters testamentary and complies with the requisition of the law, the probate court having jurisdiction must revoke the letters of administration and grant letters testamentary to such executor.
(b) If, in the case provided for by subsection (a), the sole executor or some of the executors, within five days after the proof of such will, do not appear and take out letters testamentary thereon, a copy of the will must be annexed to the letters of administration and must be executed by the administrator.
(Code 1852, §§1722, 1723; Code 1867, §§2045, 2046; Code 1876, §§2414, 2415; Code 1886 §§2066, 2067; Code 1896, §§113, 114; Code 1907, §§2517, 2518; Code 1923, §§5739, 5740; Code 1940, T. 61, §§78, 79.)
Courts of probate, within their respective counties, have authority to grant letters of administration on the estates of persons dying intestate, as follows:
(1) Where the intestate, at the time of his or her death, was an inhabitant of the county.
(2) Where the intestate, not being an inhabitant of the state, dies in the county, leaving assets therein.
(3) Where the intestate, not being an inhabitant of the state, dies out of the county, leaving assets therein.
(4) Where the intestate, not being an inhabitant of the state, dies, leaving no assets therein, and assets are afterwards brought into the county.
(5) Where the intestate, being an inhabitant of the state, dies, leaving no assets subject to administration in the county of his or her residence, and no administration has been granted in such county within three months after the death of the intestate, then administration may be granted in any county where the intestate leaves assets.
(Code 1852, §1667; Code 1867, §1985; Code 1876, §2349; Code 1886, §2013; Code 1896, §55; Code 1907, §2519; Code 1923, §5741; Code 1940, T. 61, §80.)
Letters of administration may be substantially in the following form: The State of Alabama, } ___________ County.}Court of Probate.
Letters of administration on the estate of _____ (or letters of administration on the annexed will of _____, as the case may be) are hereby granted to _____, who has duly qualified and given bond as such administrator, and is authorized to administer such estate (or to execute such will, as the case may be).
Witness my hand and dated this _____day of ___, 19.
______________ Judge of Probate
(Code 1852, §1688; Code 1867, §2008; Code 1876, §2370; Code 1886, §2015; Code 1896, §57; Code 1907, §2521; Code 1923, §5743; Code 1940, T. 61, §82.)
(a) Administration of an intestate’s estate must be granted to one of the persons herein named if the person is willing to accept and satisfactory to serve in the following order:
(1) The husband or widow.
(2) The next of kin entitled to share in the distribution of the estate.
(3) The largest creditor of the estate residing in this state.
(4) Any other person as the judge of probate may appoint.
(b) Notwithstanding the provisions of subsection (a) of this section, in all counties having a population of 400,000 or more, according to the last or any subsequent federal census, or in any county having an elected general or county administrator, administration of an intestate’s estate must be granted to some one of the persons hereinafter named, if willing to accept and satisfactory to serve, in the following order:
(1) The husband or widow.
(2) The next of kin entitled to share in the distribution of the estate.
(3) The largest creditor of the estate residing in this state.
(4) The county or general administrator.
(5) Any other person as the judge of probate may appoint.
(Code 1852, §1668; Code 1867, §1986; Code 1876, §2350; Code 1886, §2014; Code 1896, §56; Code 1907, §2520; Code 1923, §5742; Acts 1931, No. 551, p. 649; Acts 1936, Ex. Sess., No. 52, p. 29; Code 1940, T. 61, §81; Acts 1945, No. 356, p. 574; Acts 1951, No. 635, p. 1091; Acts 1956, 1st Ex. Sess., No. 128, p. 190; Acts 1996, No. 96-744, p. 1306, §1.)
(a) Any person entitled to administration may relinquish his or her right thereto in the same manner as executors are authorized to renounce their appointment.
(b) If no person entitled to the administration of the estate, according to the first three subdivisions of subsections (a) or (b) of Section 43-2-42, applies for letters within 40 days after the death of the intestate is known, the persons so entitled must be held to have relinquished their right to the administration.
(Code 1852, §§1669, 1674; Code 1867, §§1987, 1992; Code 1876, §§2351, 2356; Code 1886, §§2016, 2018; Code 1896, §§58, 60; Code 1907, §§2522, 2524; Code 1923, §§5744, 5746; Code 1940, T. 61, §§83, 85.)
If several persons of the same degree of kindred to the intestate, computed by the rules of the civil law, are entitled to the administration, and when several persons are equally entitled thereto, the court may, in its discretion, grant letters to one or more of them; except, that the whole blood shall be preferred to the half blood. When a married woman is entitled to the administration, it may be granted to her husband in her right.
(Code 1852, §§1670-1673; Code 1867, §§1988-1991; Code 1876, §§2352-2355; Code 1886, §2017; Code 1896, §59; Code 1907, §2523; Code 1923, §5745; Code 1940, T. 61, §84.)
No letters of administration must be granted until the expiration of five days after the death of the intestate is known; and the court may, in all cases, examine the persons applying therefor, on oath, touching the time and place of the death of the intestate and as to whether or not he left any will and other matters necessary to give the court jurisdiction; and may also examine any other witnesses as to the same facts and may compel their attendance for that purpose by subpoena and attachment.
(Code 1852, §1675; Code 1867, §1993; Code 1876, §2357; Code 1886, §2019; Code 1896, §61; Code 1907, §2525; Code 1923, §5747; Code 1940, T. 61, §86.)
When there are contesting applicants for letters testamentary or of administration, no letters must issue until the time for taking an appeal from the judgment thereon has passed; and, if such appeal is taken, no letters in chief must be granted until the appeal is finally disposed of; but a special administrator may be appointed if necessary.
(Code 1852, §1694; Code 1867, §2015; Code 1876, §2377; Code 1886, §2035; Code 1896, §78; Code 1907, §2531; Code 1923, §5753; Code 1940, T. 61, §88.)
(a) The judge of probate may, in any contest respecting the validity of a will, or for the purpose of collecting the goods of a deceased, or in any other case in which it is necessary, appoint a special administrator, authorizing the collection and preservation by him or her of the goods of the deceased until letters testamentary or of administration have been duly issued.
(b) Every such special administrator has authority to collect the goods and chattels of the estate and debts of the deceased, to give receipts for moneys collected, to satisfy liens and mortgages paid to him or her, and to secure and preserve such goods and chattels at such expense as may be deemed reasonable by the probate court; and for such purposes, he or she may maintain civil actions as administrator.
(c) Such special administrator may also, under the direction of the probate court, sell such goods as are perishable or wasting, after the same have been appraised, upon such notice as the judge of probate may prescribe.
(d) Upon the grant of letters testamentary or of administration, the authority of such special administrator ceases, and on demand he or she must deliver to the rightful executor or administrator all the assets of the deceased which may be in his or her hands and render an account on oath of all his or her proceedings to the probate court.
(Code 1852, §§1676-1679; Code 1867, §§1994-1997; Code 1876, §§2358-2361; Code 1886, §§2020-2023; Code 1896, §§62-65; Code 1907, §§2526-2529; Code 1923, §§5748-5751; Code 1940, T. 61, §§89-92.)
Letters testamentary or of administration and letters to a special administrator or to any general administrator, sheriff or coroner, granted by any court having jurisdiction, are conclusive evidence of the authority of the person to whom the same are granted, from the date thereof until the same are revoked; and, when granted, such letters exclude the probate court of every other county from the jurisdiction thereof and extend to all the property of the deceased in the state.
(Code 1852, §1693; Code 1867, §2014; Code 1876, §2376; Code 1886, §2034; Code 1896, §77; Code 1907, §2530; Code 1923, §5752; Code 1940, T. 61, §87.)
The personal representative must give notice of the appointment, stating the name of the deceased, the day on which letters were granted, by what court, stating the county and notifying all persons having claims against the estate to present the same within the time allowed by law or that the same will be barred. The notice of appointment,
(1) For actual notice as required in Section 43-2-61(1), must be given as soon as practicable after a creditor’s identification is known; and
(2) For publication notice as required in Section 43-2-61(2), must be given within thirty days from grant of letters.
(Code 1852, §1734; Code 1867, §2057; Code 1876, §2426; Code 1886, §2075; Code 1896, §122; Code 1907, §2586; Code 1923, §5811; Code 1940, T. 61, §93; Acts 1989, No. 89-811, p. 1618, §1.)
Notice, as prescribed in Section 43-2-60, must be given:
(1) By first-class mail addressed to their last known address, or by other mechanism reasonably calculated to provide actual notice, to all persons, firms, and corporations having claims against the decedent, who are known or who are reasonably ascertainable by the personal representative within six months from the grant of letters; and
(2) By publishing a notice once a week for three successive weeks in a newspaper of general circulation published in the county in which the letters were granted or, if none is published in the county, in the one published nearest to the courthouse thereof or in an adjoining county.
(Code 1852, §1735; Code 1867, §2058; Code 1876, §2427; Code 1886, §2076; Code 1896, §123; Code 1907, §2587; Code 1923, §5812; Code 1940, T. 61, §94; Acts 1989, No. 89-811, p. 1618, §2.)
It is the duty of the judge of probate to see that such publication is duly made; and any executor or administrator failing to make the same must not be allowed any compensation as such; and he or she and his or her sureties are liable, on proof that such notice has not been given, to any creditor for the amount which he or she would have been entitled to out of the assets of the estate had his or her claim been duly presented.
(Code 1852, §1736; Code 1867, §2059; Code 1876, §2428; Code 1886, §2077; Code 1896, §124; Code 1907, §2588; Code 1923, §5813; Code 1940, T. 61, §95.)
When a party is required to give a bond and is not otherwise exempt from giving a bond, the judge of probate is liable for any wanton, fraudulent, or intentional misconduct for not requiring a bond or for taking an insufficient bond from any personal representative, fiduciary, or someone serving in a similar capacity. Any person injured thereby may maintain an action against the judge and his or her sureties and recover for the injury proved.
(Code 1852, §1692; Code 1867, §2013; Code 1876, §2375; Code 1886, §2033; Code 1896, §76; Code 1907, §2545; Code 1923, §5767; Code 1940, T. 61, §101; Act 2017-174, §1.)
(a) Upon the application in writing of any surety or sureties upon the bond of an executor or administrator requesting to be discharged from any future liability as such surety or sureties, or upon the application in writing of the personal representative or of an heir or devisee of a deceased surety upon such bond requesting that the estate of such deceased surety be discharged from future liability by reason of such suretyship, the court shall give to such executor or administrator notice of such application and require him or her, within 15 days after the service of the notice, to make a new bond; and upon the failure to make such bond, such executor or administrator shall be removed and his or her letters revoked; and upon such removal he or she shall make settlement of his or her administration. Any number of persons having the right to make application under this section may join in the application.
(b) When a new bond is given under subsection (a) of this section, the surety on whose application or the estate of the deceased surety on whose behalf the application was made, as the case may be, is discharged as to all breaches subsequent to the execution and approval of the new bond.
(Code 1876, §2385; Code 1886, §2044; Code 1896, §§90, 91; Code 1907, §§2547, 2548; Code 1923, §§5769, 5770; Code 1940, T. 61, §§103, 104.)
(a) When administration is committed to the general administrator or sheriff, on the application of a third person, such letters must not be granted unless such person enters into bond, with surety, to be approved by the judge, to pay the fees and allowances made by the court on such administration, if the property of the estate is insufficient therefor.
(b) If, upon the settlement of an administrator appointed under subsection (a), it appears that sufficient assets of his or her intestate have not come to his or her hands to pay the costs and expenses legally incurred in his or her administration, the probate court having jurisdiction of such administration may enter a judgment and thereon issue execution against the obligors in the bond mentioned in subsection (a), for any excess due above the assets in the hands of such administrator.
(Code 1852, §1691; Code 1867, §§2011, 2012; Code 1876, §§2373, 2374; Code 1886, §§2031, 2032; Code 1896, §§74, 75; Code 1907, §§2543, 2544; Code 1923, §§5765, 5766; Code 1940, T. 61, §§99, 100.)
The general administrator of a county must give bond, with at least two sufficient sureties or a sufficient guaranty or surety company, in an amount to be prescribed by the judge of probate sufficient to secure all persons interested, payable to the judge of probate and conditioned faithfully to administer all estates which may come to his or her charge as such general administrator, which bond must be approved by such judge.
(Code 1852, §1689; Code 1867, §2009; Code 1876, §2371; Code 1886, §2028; Code 1896, §70; Code 1907, §2536; Code 1923, §5758; Code 1940, T. 61, §135.)
An additional bond may also be required of the general administrator, whenever the judge of probate deems it necessary to secure the interests of the estate confided to his or her charge or the sureties may be unwilling to remain longer bound; and, if he or she fails to give such bond within the time prescribed by the court, he or she must be removed and his or her letters revoked; and when any person interested in an estate committed to the general administrator shall give notice in writing to the judge of probate that the interest of the estate requires that the general administrator should give an additional bond, such judge must require him or her to give such bond; and if, in such case, the judge of probate fails or omits to require such bond and loss thereby results to anyone interested, he or she and the sureties on his or her official bond shall be responsible therefor.
(Code 1852, §1711; Code 1867, §2032; Code 1876, §2401; Code 1886, §2055; Code 1896, §102; Code 1907, §2549; Code 1923, §5771; Code 1940, T. 61, §105.)
When the administration of any estate is committed to the sheriff, the judge of probate, at such time or at any time thereafter, while the administration is in the hands of such officer, may require of him or her an additional bond if, in his or her opinion, the official bond of such officer is not sufficient security for the protection of the estate; and if he or she fails to give such additional bond for 10 days after notice that the same is required, he or she vacates his or her office, and the judge of probate must certify the vacancy to the appointing power.
(Code 1852, §1712; Code 1867, §2033; Code 1876, §2402; Code 1886, §2056; Code 1896, §103; Code 1907, §2550; Code 1923, §5772; Code 1940, T. 61, §106.)
When an additional bond is given on the application of the surety of an executor or administrator, such surety is discharged as to all breaches subsequent to the execution and approval of the additional bond.
(Code 1852, §1715; Code 1867, §2036; Code 1876, §2405; Code 1886, §2057; Code 1896, §104; Code 1907, §2551; Code 1923, §5773; Code 1940, T. 61, §107.)
When the additional bond is not given on the application of a surety, the former bonds are not discharged, but each remains of the same force and obligation as if such additional bond had not been given; and any person aggrieved, for a breach of the last bond, may proceed on either or all of the bonds, in the same or in separate proceedings.
(Code 1852, §1716; Code 1867, §2037; Code 1876, §2406; Code 1886, §2058; Code 1896, §105; Code 1907, §2552; Code 1923, §5774; Code 1940, T. 61, §108.)
The sureties in either bond, who have been compelled to make any payment thereon for the principal obligor, on a breach subsequent to the execution of the last bond, have the same remedies against the sureties on the remaining bonds as cosureties have against each other and may recover against such sureties such an amount as shall be in the same proportion to the sum paid by the plaintiff as the aggregate penalty of the two bonds bears to the penalty of the bond of the defendant, apportioning the same among the solvent sureties.
(Code 1852, §1717; Code 1867, §2038; Code 1876, §2407; Code 1886, §2059; Code 1896, §106; Code 1907, §2553; Code 1923, §5775; Code 1940, T. 61, §109.)
The bond of the general administrator of the county or of any executor or administrator is valid and operative as a statutory bond and is of the same obligation, force and effect as a statutory bond, though it may not be approved, or in the penalty, or payable or with the condition required by law.
(Code 1852, §1714; Code 1867, §2035; Code 1876, §2404; Code 1886, §2273; Code 1896, §342; Code 1907, §2554; Code 1923, §5776; Code 1940, T. 61, §110.)
A surety on the bond of the general administrator of the county or on the bond of any executor or administrator cannot avoid liability thereon on the ground that he or she signed or delivered it on condition that it should not be delivered to the judge of probate or should not become perfect, unless it was executed by some other person who does not execute it.
(Code 1886, §2274; Code 1896, §343; Code 1907, §2555; Code 1923, §5777; Code 1940, T. 61, §111.)
Upon the filing of any partial settlement by the executor under a will, or the administrator of the estate of a deceased person, in the court in which such estate is pending, such executor or administrator may pray for a reduction in the amount of his or her bond as a fiduciary, and thereupon the court must set a day for the hearing of such partial settlement and must cause notices to be issued to all parties in interest as is now provided by law for final settlements of such estates. And on the day set for hearing the court may fix the amount to which the bond shall be reduced, which shall be determined as now provided by law for such bonds.
(Acts 1939, No. 560, p. 883; Code 1940, T. 61, §112.)
No executor or administrator is liable, except in the case provided by Section 43-2-62, beyond the amount of assets which have come to his or her hands or which have been lost, destroyed, wasted, injured, depreciated or not collected by want of diligence on his or her part or an abuse of his or her trust.
(Code 1852, §1919; Code 1867, §2278; Code 1876, §2616; Code 1886, §2269; Code 1896, §337; Code 1907, §2798; Code 1923, §6037; Code 1940, T. 61, §114.)
The personal representative and the sureties on his or her bond are liable to the parties in interest for the due and legal distribution of all damages recovered by such representative under Sections 6-5-391, 6-5-410 or 25-6-3, and are subject to all remedies which may be pursued against such representative and sureties for the due administration of personal assets.
(Code 1886, §2593; Code 1896, §338; Code 1907, §2799; Code 1923, §6038; Code 1940, T. 61, §115.)
The executor or administrator of any decedent who, as executor, administrator, or otherwise, has wasted or converted to his or her own use any assets of any other decedent is liable in the same manner as his or her testator or intestate would have been if living.
(Code 1852, §1928; Code 1867, §2287; Code 1876, §2631; Code 1886, §2268; Code 1896, §336; Code 1907, §2797; Code 1923, §6036; Code 1940, T. 61, §113.)
No person is liable to an action, as executor of his or her own wrong, for having taken, received or interfered with the property of a deceased person but is liable to the executor or administrator for the value of all the property so taken or received and for all damages caused by his or her act to the estate of the deceased; but the provisions of this section must not be construed so as to prevent any creditor from maintaining a civil action against anyone in possession of property fraudulently transferred by such deceased person.
(Code 1852, §1933; Code 1867, §2292; Code 1876, §2636; Code 1886, §2271; Code 1896, §340; Code 1907, §2801; Code 1923, §6040; Code 1940, T. 61, §117.)
No executor or administrator can allege his or her resignation in defense to any action or proceeding without an averment that he or she has settled his or her administration and delivered over the assets of the estate as required by law.
(Code 1852, §1920; Code 1867, §2279; Code 1876, §2617; Code 1886, §2270; Code 1896, §339; Code 1907, §2800; Code 1923, §6039; Code 1940, T. 61, §116.)
Civil actions may be brought against executors or administrators in their representative character, in all cases, in the county in which letters were granted. Service of process may be made on them in any county in the state.
(Code 1852, §1918; Code 1867, §2277; Code 1876, §2615; Code 1886, §2262; Code 1896, §330; Code 1907, §2802; Code 1923, §6041; Code 1940, T. 61, §118.)
No civil action must be commenced against an executor or administrator, as such, until six months after the grant of letters testamentary or of administration, unless the executor or administrator has given notice of the disallowance of the claim.
(Code 1852, §1917; Code 1867, §2276; Code 1876, §2614; Code 1886, §2263; Code 1896, §331; Code 1907, §2803; Code 1923, §6042; Acts 1931, No. 725, p. 841; Code 1940, T. 61, §119.)
Civil actions commenced by a special administrator do not abate by the appointment of an executor or administrator in chief, but may be prosecuted by such executor or administrator.
(Code 1852, §1924; Code 1867, §2283; Code 1876, §2621; Code 1886, §2264; Code 1896, §332; Code 1907, §2804; Code 1923, §6043; Code 1940, T. 61, §120.)
When any civil action has been commenced by or against the personal representative of a decedent, the same may be prosecuted by or against any succeeding executor or administrator, who may, on motion, be made a party.
(Code 1852, §1925; Code 1867, §2284; Code 1876, §2622; Code 1886, §2265; Code 1896, §333; Code 1907, §2805; Code 1923, §6044; Code 1940, T. 61, §121.)
In all cases where judgment has been rendered against an administrator in chief of any estate, and such administrator in chief dies, resigns or is removed before the satisfaction of such judgment, such judgment may be revived in favor of the owners of such judgment, or their personal representative, against the administrator de bonis non of such estate on 10 days’ notice to such administrator de bonis non; but such liabilities shall only bind the administrator de bonis non to the extent of the assets of the estate which have come into his or her possession.
(Code 1907, §2806; Code 1923, §6045; Code 1940, T. 61, §122.)
If any one of two or more executors or administrators, against whom a civil action is pending, die during the pendency of the action, it does not abate but may be continued against the survivor or survivors, on a suggestion of such death on the record.
(Code 1852, §1927; Code 1867, §2286; Code 1876, §2624; Code 1886, §2266; Code 1896, §334; Code 1907, §2807; Code 1923, §6046; Code 1940, T. 61, §123.)
All proceedings to ascertain damages done to real property survive to the executors or administrators.
(Code 1852, §1929; Code 1867, §2288; Code 1876, §2632; Code 1886, §2267; Code 1896, §335; Code 1907, §2808; Code 1923, §6047; Code 1940, T. 61, §124.)
Civil actions may be brought or proceedings had on any bond given by an executor or administrator, as such, in the name of the party aggrieved until the whole penalty is exhausted.
(Code 1852, §1713; Code 1867, §2034; Code 1876, §2403; Code 1886, §2272; Code 1896, §341; Code 1907, §2809; Code 1923, §6048; Code 1940, T. 61, §125.)
Any legatee, after six months from the grant of letters testamentary or of administration, with the will annexed, may bring a civil action and recover his or her legacy, upon proof that the executor assented to the same.
(Code 1852, §1931; Code 1867, §2290; Code 1876, §2634; Code 1886, §2275; Code 1896, §344; Code 1907, §2810; Code 1923, §6049; Acts 1931, No. 725, p. 841; Code 1940, T. 61, §126.)
In an action against an executor or administrator, in which the fact of his or her having administered the estate of his or her testator or intestate, or any part thereof, comes in issue, and the inventory of the property of the deceased, filed by him or her, is given in evidence, the effect of the same may be repelled by evidence:
(1) That any property has been omitted in such inventory, or was not returned therein at its full value, or since the filing thereof has increased in value; or
(2) That such property has perished, or been lost without the fault of such executor or administrator, or that it has been fairly sold, according to law, at a less price than the value so returned, or that, since the return of the inventory, such property has deteriorated or decreased in value; and in such action the defendant cannot be charged for anything in action specified in the inventory, unless it appears that it was, or might have been, collected by the exercise of due diligence.
(Code 1852, §1932; Code 1867, §2291; Code 1876, §2635; Code 1886, §2282; Code 1896, §351; Code 1907, §2811; Code 1923, §6050; Code 1940, T. 61, §127.)
All judgments, orders, and decrees of the probate court against an executor or administrator for the payment of money may be enforced by execution or by process of garnishment, which may issue in like cases and manner as it may issue on judgments in circuit courts, and may, in like manner, be prosecuted to judgment against the garnishee; for the delivery of personal property, by attachment or a special order to the sheriff, requiring him or her to take such property and deliver the same according to the judgment, order or decree; for the possession of land, by a writ to the sheriff against the executor or administrator, requiring him or her to put the heir or devisee in possession of the same.
(Code 1852, §1921; Code 1867, §2280; Code 1876, §2618; Code 1886, §2276; Code 1896, §345; Code 1907, §2812; Code 1923, §6051; Code 1940, T. 61, §128.)
When an execution against an executor or administrator, issued from the probate court on any judgment, order or decree for money is returned to any regular term of such court “no property” by the sheriff of the county, such judgment, order or decree may be enforced against the executor or administrator and his or her sureties, by execution or by process of garnishment, which may issue in like cases and manner as it may issue on judgment in circuit courts and may, in like manner, be prosecuted to judgment against the garnishee.
(Code 1852, §1922; Code 1867, §2281; Code 1876, §2619; Code 1886, §2277; Code 1896, §346; Code 1907, §2813; Code 1923, §6052; Code 1940, T. 61, §129.)
When a judgment has been entered against a decedent before his or her death, no execution can issue thereon against his or her personal representative, except in the case provided for in Section 6-9-62; but such judgment may be revived against his or her personal representative by appropriate action or motion after the lapse of six months from the grant of letters; and Sections 43-2-709 and 43-2-810 through 43-2-812 are applicable to such proceeding.
(Code 1852, §1930; Code 1867, §2289; Code 1876, §2633; Code 1886, §2280; Code 1896, §349; Code 1907, §2816; Code 1923, §6055; Code 1940, T. 61, §132.)
When any judgment is entered in the circuit court against any executor or administrator, as such, and an execution thereon has been returned “no property” by the sheriff or other officer of the county in which such judgment was entered, an execution may issue against the executor or administrator personally, to be levied on his or her goods and chattels, lands, and tenements.
(Code 1852, §1923; Code 1867, §2282; Code 1876, §2620; Code 1886, §2278; Code 1896, §347; Code 1907, §2814; Code 1923, §6053; Code 1940, T. 61, §130.)
The executor or administrator of any decedent may purchase for the estate property sold under any judgment of the circuit court or under any execution in his or her favor as such executor or administrator.
(Code 1886, §2281; Code 1896, §350; Code 1907, §2817; Code 1923, §6056; Code 1940, T. 61, §133.)
Any subsequent administrator, or administrator with the will annexed, may have execution on any judgment recovered by any person who preceded him or her in the administration of the same estate, without reviving the same or without proceeding to notify the defendant in such judgment.
(Code 1852, §1926; Code 1867, §2285; Code 1876, §2623; Code 1886, §2279; Code 1896, §348; Code 1907, §2815; Code 1923, §6054; Code 1940, T. 61, §131.)
Each judge of probate must appoint a suitable person as a general administrator within his or her county, who must take charge of the estates of deceased persons or act as special administrator, in those cases in which no other persons entitled thereto will administer and no other person is appointed by the court. His or her office shall expire with the expiration of the term of the judge who appointed him or her.
(Code 1852, §1680; Code 1867, §2000; Code 1876, §2362; Code 1886, §2027; Code 1896, §69; Code 1907, §2535; Code 1923, §5757; Code 1940, T. 61, §134.)
The administration of an estate must not be committed to the general administrator or to the sheriff, except as special administrator, until the death of the decedent has been known 40 days, nor until one month after the death, resignation, or removal of an executor or administrator previously appointed.
(Code 1852, §1682; Code 1867, §2002; Code 1876, §2364; Code 1886, §2030; Code 1896, §73; Code 1907, §2539; Code 1923, §5761; Code 1940, T. 61, §138.)
In case there is no general administrator and no other fit person will administer, the court may commit administration to the sheriff of the county; when so committed, the administration attaches to the office, and the official oath and bond of such office are the security for his or her faithful administration.
(Code 1852, §§1681, 1690; Code 1867, §§2001, 2010; Code 1876, §§2363, 2372; Code 1886, §2029; Code 1896, §72; Code 1907, §2538; Code 1923, §5760; Code 1940, T. 61, §137.)
(a) The general administrator may be removed for the same causes as other administrators. Such removal may be made by the judge of probate without notice, but the grounds thereof must be entered on the minutes of the court.
(b) The resignation of the office of general administrator shall not operate to discharge the incumbent from the administration of any estate previously committed to his or her charge as such general administrator; but he or she may proceed, notwithstanding such resignation, to administer and finally settle the same, as if he or she had not resigned such office; and the sureties on his or her bond as general administrator shall be liable for every act of maladministration on such estate committed after his or her resignation, to the same extent as if he or she had not resigned; but he or she may be removed from the administration of such estate for any of the causes prescribed by law, or he or she may resign his or her administration thereon by leave of the probate court of his or her county.
(Code 1852, §1710; Code 1867, §§2031, 2041; Code 1876, §§2400, 2410; Code 1886, §§2054, 2062; Code 1896, §§101, 109; Code 1907, §§2575, 2578; Code 1923, §§5798, 5801; Code 1940, T. 61, §§174, 188.)
Upon the resignation or removal of a general administrator from office, the judge of the probate court of the proper county must proceed to appoint some other suitable person general administrator for such county, who shall give bond as required by law, and administer on such estates as may be committed to his or her charge by the probate court of his or her county.
(Code 1867, §2042; Code 1876, §2411; Code 1886, §2063; Code 1896, §110; Code 1907, §2532; Code 1923, §5754; Code 1940, T. 61, §139.)
The general administrator must, from time to time, enter, in a well-bound book to be supplied by the court of county commissioners, a full and complete record of his or her official acts concerning each estate in his or her charge. Such book shall be kept in the office of the judge of probate and free to the examination of all persons when not in use.
(Code 1896, §71; Code 1907, §2537; Code 1923, §5759; Code 1940, T. 61, §136.)
The application filed by a nonresident for letters testamentary or of administration must set forth his or her name and post-office address; but the address so given may, at any time, be changed by such nonresident executor or administrator, such change to be shown by a written statement setting forth his or her present post-office address, signed by such executor or administrator, or his or her attorney and filed and recorded in the court granting the letters.
(Code 1896, §83; Code 1907, §2559; Code 1923, §5782; Code 1940, T. 61, §144.)
Judges of probate are authorized to issue letters testamentary to persons named as executors in wills regularly probated who are nonresidents of this state, upon like bond and surety and upon the same terms, conditions, and requirements as are required by law of citizens of this state.
(Code 1876, §2379; Code 1886, §2037; Code 1896, §80; Code 1907, §2556; Code 1923, §5778; Code 1940, T. 61, §140.)
When the will has been probated in another state or territory, before issuing letters testamentary thereon to a nonresident executor, the judge of probate must require him or her to file in court a copy of the will under which he or she is appointed, together with a certificate of the judge of the court in which the will was probated, that such will was regularly proved and established and that letters testamentary were issued to him or her thereon, in accordance with the laws of the state or territory in which such original letters were granted, and also to give bond and surety upon the same terms, conditions, and requirements as are required by law of citizens of this state. But if it shall appear from the will that the testator, by an express provision therein, has exempted the applicant from giving bond as executor, such bond must not be required, except in the cases specified in Section 43-2-81. The certified copy of the foreign letters must be filed and recorded.
(Code 1876, §2380; Code 1886, §2038; Code 1896, §81; Code 1907, §2557; Code 1923, §5780; Code 1940, T. 61, §142.)
When any nonresident dies, leaving assets in this state, if no application for letters of administration is made by a relative or creditor entitled thereto, an administrator of his or her estate, appointed by the competent authority of the state or territory of his or her domicile, shall be entitled to letters of administration on such estate in this state, upon the production of the letters granted to him or her by the state or territory of his or her intestate’s domicile, duly certified as required by law, in preference to any other person, upon his or her giving like bond and surety and upon the same terms, conditions, and requirements as are required by law of citizens of this state. The certified copy of his or her foreign letters shall be filed and recorded in the office of the judge of probate issuing letters in this state.
(Code 1886, §2039; Code 1896, §82; Code 1907, §2558; Code 1923, §5781; Code 1940, T. 61, §143.)
When letters are granted to a nonresident executor or administrator, the assets of the estate upon which such letters are granted, which may be within this state at the date of such letters, shall in all respects be administered and settled as if such letters had been issued to a resident executor or administrator.
(Code 1876, §2381; Code 1886, §2040; Code 1896, §84; Code 1907, §2560; Code 1923, §5783; Code 1940, T. 61, §145.)
The personal representative of a deceased person, by appointment of a court having jurisdiction in any state other than the state of Alabama, may receive and collect any indebtedness or bank deposit owing to the deceased by any person who is a resident of Alabama, and such personal representative may execute a release, discharge, and satisfaction of such indebtedness. Such personal representative, at the time of or before making such collection and satisfaction, release, or discharge, shall file for record in the probate office of the county wherein the debtor resides a certified copy of the letters testamentary or of administration issued to such personal representative, certified in accordance with 28 U.S.C.A., §1738, but no such collection shall be made until the lapse of 60 days from the date of the death of the deceased, and no such collection shall be made if proceedings are pending for the grant of letters testamentary or of administration in or have been issued by any court having jurisdiction in Alabama.
(Acts 1919, No. 731, p. 1082; Code 1923, §5779; Code 1940, T. 61, §141.)
Nonresident executors or administrators appointed under the provisions of this article may, by giving security for costs as required by law of nonresidents, bring and maintain civil actions in the courts of this state in all respects as may be done by resident executors and administrators.
(Code 1896, §85; Code 1907, §2561; Code 1923, §5784; Code 1940, T. 61, §146.)
Civil actions may be brought against nonresident executors and administrators in their representative character, in all cases, in the county in which letters were granted.
(Code 1896, §86; Code 1907, §2562; Code 1923, §5785; Code 1940, T. 61, §147.)
Service of summons or other process may be made upon nonresident executors and administrators personally if found within the state. Such service may be made in any case by personal service upon them if found within the state, or by filing in the probate court granting letters a copy of the summons or other process and by sending a copy thereof through the mail to such executor or administrator and serving a copy thereof upon a resident surety, if there be one, as provided in Section 43-2-199.
(Code 1896, §86; Code 1907, §2562; Code 1923, §5785; Code 1940, T. 61, §147.)
Citations to make settlements and other citations or notices to such nonresident executors and administrators, and all writs or legal process, including executions on decrees and judgments, may be served by depositing a copy in a sealed envelope, postage prepaid, in a post office at or near the court or office issuing such process, such envelope to be plainly addressed and directed to such nonresident executor or administrator at the place and by the name furnished by him or her upon the filing of his or her application for letters, or thereafter as provided in Section 43-2-190 and, when the sureties, or either of them, reside in the state, and their place of residence is known, by the service of a copy of such writ or process upon one of such sureties. When service is had by depositing a copy of the writ or process in the post office only and not accompanied by service upon a surety, such service shall not take effect until the expiration of 10 days from the date of mailing such copy. If the post-office address of such nonresident executor or administrator is not furnished as required by Section 43-2-190, service on one of his or her sureties is sufficient. If such post-office address is not so furnished and if there be no resident surety, notice of such writ or process may be given by publication in a newspaper published in the county wherein the proceedings are had for two consecutive weeks, and a copy thereof must be sent by mail to such nonresident executor or administrator, if his or her post-office address can be ascertained; and, if in such case there be no newspaper published in the county, the notice may be given by posting a copy thereof at the door of the courthouse for 15 days. The sheriff or other officer executing the writ or process must make return thereof according to the facts.
(Code 1876, §2382; Code 1886, §2041; Code 1896, §87; Code 1907, §2563; Code 1923, §5786; Code 1940, T. 61, §148.)
Upon the return of an execution as provided in Section 43-2-199 and, further, that no property of such executor or administrator, or property not sufficient to satisfy the same, is found in the county in which the execution is issued, the sureties on his or her bond shall be liable in all respects as in cases of a return of no property found on executions issued against resident executors or administrators.
(Code 1876, §2383; Code 1886, §2042; Code 1896, §88; Code 1907, §2564; Code 1923, §5787; Code 1940, T. 61, §149.)
The judge of probate, in determining the amount of the bond which such executor or administrator should give, may examine him or her on oath; and such bond, when given, stands as security, on its condition being broken, for any person thereby injured.
(Code 1852, §1936; Code 1867, §2295; Code 1876, §2639; Code 1886, §2293; Code 1896, §362; Code 1907, §2828; Code 1923, §6067; Code 1940, T. 61, §154.)
Any executor or administrator who has obtained letters testamentary or of administration on the estate of a person who was not, at the time of his or her death, an inhabitant of this state, in any other of the United States, and who has not obtained letters of administration thereon in this state, as authorized by Article 8 of Chapter 2 of this title, may maintain civil actions and recover or receive property in this state:
(1) By recording, at any time before judgment or the receipt of the property, a copy of his or her letters, duly authenticated according to the laws of the United States, in the office of the judge of probate of the county in which such civil action is brought or property received; or
(2) By giving bond, with at least two good and sufficient sureties, payable to and approved by such judge of probate, in such amount as he or she may prescribe, to be determined with reference to the value of the property to be recovered or received and conditioned to faithfully administer such recovery or property according to law.
(Code 1852, §1934; Code 1867, §2293; Code 1876, §2637; Code 1886, §2290; Code 1896, §359; Code 1907, §2825; Code 1923, §6064; Code 1940, T. 61, §151.)
No civil action brought by any foreign executor or administrator, under the provisions of Section 43-2-211, must be abated, barred, or affected by the grant of letters of administration in this state, either prior or subsequent to the institution of such action; but, in such case, the administrator appointed in this state may, if necessary for the protection of creditors, distributees, or legatees, resident in this state, intervene in such action and shall be entitled to the recovery therein.
(Code 1867, §2293; Code 1876, §2637; Code 1886, §2291; Code 1896, §360; Code 1907, §2826; Code 1923, §6065; Code 1940, T. 61, §152.)
Before a judgment is rendered in a civil action brought by such foreign executor or administrator, the plaintiff must prove that he or she has complied in all respects with the provisions of Section 43-2-211, and, failing to do so, he or she cannot recover.
(Code 1852, §1935; Code 1867, §2294; Code 1876, §2638; Code 1886, §2292; Code 1896, §361; Code 1907, §2827; Code 1923, §6066; Code 1940, T. 61, §153.)
A delivery of property or the recovery of judgment, under the provisions of Section 43-2-211, is a protection to the defendant or to the person delivering the property, to the extent of such judgment or the value of such property.
(Code 1852, §1937; Code 1867, §2296; Code 1876, §2640; Code 1886, §2294; Code 1896, §363; Code 1907, §2829; Code 1923, §6068; Code 1940, T. 61, §155.)
Whenever letters of administration on the estate of any person presumed to be dead on account of absence for five or more years from the place of his or her last domicile within this state shall be applied for, it shall be the duty of the judge of probate to whom the application shall be made to accept and file the same and to thereupon take the testimony with respect to whether the petitioner is entitled to such letters; and, if the court is satisfied by the testimony that the applicant would be entitled thereto were the supposed decedent in fact dead, the court shall cause to be advertised in a newspaper published in the county, once a week for four consecutive weeks, the fact of said application, together with notice that on a day certain which shall be at least two weeks after the last of said advertisements, the court will hear evidence concerning the alleged absence of the supposed decedent, and the circumstances and duration thereof.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §157; Acts 1984, No. 84-258, p. 426, §1.)
It shall be lawful for the respective probate courts of this state to appoint a personal representative of the estates of persons who are presumed to be dead on account of absence for five or more years from the place of their last domicile within this state as provided in this article.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §156; Acts 1982, No. 82-399, §8-102; Acts 1984, No. 84-258, p. 426, §1.)
At the hearing, the probate court shall take such legal evidence as shall then be offered for the purpose of ascertaining whether the presumption of death is established, and no person shall be disqualified to testify by reason of his or her relationship as husband or wife to the supposed decedent or of his or her interest in the estate of the person supposed to be dead.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §158.)
If satisfied upon the hearing that the legal presumption of death is made out, the court shall so decree and shall forthwith cause notice thereof to be inserted for two successive weeks in a newspaper published in the county and also, when practicable, in a newspaper published at, or near, the place shown in the commonwealth, where, when last heard from, the supposed decedent had his or her residence. The said notice shall require the supposed decedent, if alive, or any other person for him or her to produce to the court, within 12 weeks from the date of its last insertion, satisfactory evidence of his or her continuance in life.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §159.)
If, within the period of said 12 weeks, evidence satisfactory to the probate court of the continuance in life of the said decedent shall not be forthcoming, it shall be the duty of the court to issue the letters of administration to the party thereto entitled, and the said letters, until revoked, and all acts done in pursuance thereof, and in reliance thereupon, shall be as valid as if the supposed decedent were actually dead.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §160.)
The probate court may revoke the said letters at any time on due and satisfactory proof that the supposed decedent is in fact alive, after which revocation all the powers of the administrator shall cease, but all receipts, disbursements of assets, and other acts previously done by him or her shall remain as valid as if the said letters were unrevoked. The administrator shall settle an account of his or her administration, down to the time of such revocation, and shall transfer all assets remaining in his or her hands to the person as whose administrator he or she had acted or to his or her duly authorized agent or attorney. Nothing in this article shall validate the title of any person to any property or money received as widow, next of kin, or heir of such supposed decedent, but the same may be recovered from such person, provided such supposed decedent shall make due and sufficient legal proof to the court having jurisdiction of said estate, within one year after the petition for letters of said administration was filed, that he or she is alive; provided further, that if such proof is not furnished as provided in this article, the court having jurisdiction of said estate is authorized and directed to direct the administrator of said estate to disburse such funds or money as he or she may have belonging to said estate to the persons entitled to receive the same under the law.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §161; Acts 1945, No. 509, p. 732.)
After revocation of the letters, the person erroneously supposed to be dead, may, on suggestion filed of record of the proper fact, be substituted as plaintiff in all actions brought by the administrator, whether prosecuted to judgment or otherwise. He or she may in all actions previously brought against his or her administrator be substituted as defendant on proper suggestion filed by him or her, or by the plaintiff therein, but shall not be compelled to go to trial in less than three months from the time of such suggestion filed. Judgments recovered against the administrator before revocation, as aforesaid, of the letters may be reopened on application by the supposed decedent made within three months from the said revocation and supported by affidavit denying specifically on the knowledge of the affiant the cause of action or specifically alleging the existence of facts which would be a valid defense; but, if within the said three months, such application shall not be made or, being made, the facts exhibited shall be adjudged an insufficient defense, the judgment shall be conclusive to all intents, saving the defendant’s right to have it reviewed, as in other cases, by certiorari, or writ of error or by appeal, whichever is applicable under the practice then prevailing in this state with respect thereto.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §162.)
The costs attending the issue of letters, or their revocation, shall be paid out of the estate of the supposed decedent. Costs arising upon an application for letters which shall not be granted shall be paid by the applicant.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §163.)
All laws in this state with respect to procedure in the administration of estates of deceased persons which are not in conflict with the provisions of this article are made applicable to proceedings under this article.
(Acts 1939, No. 46, p. 53; Code 1940, T. 61, §164.)
When, in any proceeding in any court, the estate of a deceased person must be represented, and there is no executor or administrator of such estate, or he or she is interested adversely thereto, it shall be the duty of the court to appoint an administrator ad litem of such estate for the particular proceeding, without bond, whenever the facts rendering such appointment necessary shall appear in the record of such case or shall be made known to the court by the affidavit of any person interested therein.
(Code 1876, §2625; Code 1886, §2283; Code 1896, §352; Code 1907, §2818; Code 1923, §6057; Code 1940, T. 61, §165.)
When, in such proceedings, the estate represented by the administrator ad litem is entitled to a decree or judgment for the recovery of money or for the possession of real or personal property, such decree or judgment shall be rendered in favor of the administrator ad litem for the use of the estate.
(Code 1876, §2626; Code 1886, §2284; Code 1896, §353; Code 1907, §2819; Code 1923, §6058; Code 1940, T. 61, §166.)
When such decree or judgment is for the recovery of money and the estate has no executor or administrator, execution shall issue thereon in favor of the administrator ad litem for the use of the estate, and the money, when collected, shall be paid by the officer to the judge of the probate court, or to the clerk or register of the circuit or other court having jurisdiction, from which the execution issued. The party against whom such decree or judgment is rendered may pay the same to such judge, clerk, or register, before the issue of execution, whose receipt to him or her therefor shall be a full discharge of such decree or judgment.
(Code 1876, §2626; Code 1886, §2285; Code 1896, §354; Code 1907, §2820; Code 1923, §6059; Code 1940, T. 61, §167.)
When such decree or judgment is for the recovery of real or personal property and the estate has no executor or administrator, no writ of possession or other writ for the enforcement of such decree or judgment shall issue thereon until there shall be some person duly authorized under the laws of this state to receive the possession of such property, and then such writ shall issue in favor of such person.
(Code 1876, §2627; Code 1886, §2286; Code 1896, §355; Code 1907, §2821; Code 1923, §6060; Code 1940, T. 61, §168.)
When such administrator ad litem is appointed on account of the adverse interest of the executor or administrator, and the decree or judgment is rendered against such executor or administrator, no execution, writ of possession, or other writ for the enforcement of the decree or judgment shall issue thereon, but in such decree or judgment the court shall require the executor or administrator to charge himself or herself, as executor or administrator of the estate represented by the administrator ad litem, with the money or property recovered of him or her by the administrator ad litem; but when the decree or judgment is not against the executor or administrator, execution, writ of possession, or other writ for the enforcement of the judgment or decree, shall issue thereon in favor of such executor or administrator.
(Code 1876, §2628; Code 1886, §2287; Code 1896, §356; Code 1907, §2822; Code 1923, §6061; Code 1940, T. 61, §169.)
It shall be the duty of the judge of probate, clerk, or register receiving the money to pay over the same, less one half of one percent thereon, to the person entitled thereto, on demand; and for failure to do so, he or she incurs a penalty in favor of such person of 10 percent thereon, which, together with the money received and interest thereon, may be recovered by suit on his or her bond.
(Code 1876, §2629; Code 1886, §2288; Code 1896, §357; Code 1907, §2823; Code 1923, §6062; Code 1940, T. 61, §170.)
Such administrator ad litem must be allowed for his or her services such compensation as the judge of probate or judge of the circuit court appointing him or her may direct, to be taxed and collected as part of the costs of the proceedings, either out of the estate represented by him or her, or out of the general fund administered therein or out of any party to the action who may be taxed therewith, as the court may direct.
(Code 1876, §2630; Code 1886, §2289; Code 1896, §358; Code 1907, §2824; Code 1923, §6063; Code 1940, T. 61, §171.)
An executor or administrator may, by a writing subscribed by him or her, resign; and his or her resignation must be filed and entered of record in the court having jurisdiction of the administration.
(Code 1852, §1718; Code 1867, §2039; Code 1876, §2408; Code 1886, 2060; Code 1896, §107; Code 1907, §2576; Code 1923, §5799; Code 1940, T. 61, §172.)
In case of resignation, the executor or administrator and his or her sureties are bound for all the assets not administered, which have not been delivered over to his or her successor.
(Code 1852, §1719; Code 1867, §2040; Code 1876, §2409; Code 1886, §2061; Code 1896, §108; Code 1907, §2577; Code 1923, §5800; Code 1940, T. 61, §173.)
(a) If the sole executor or all the executors die, resign, or are removed, the probate court having jurisdiction of the estate must grant letters of administration, with will annexed, to the person entitled thereto under Section 43-2-27.
(b) If an administrator dies, resigns, or is removed, the probate court having jurisdiction of the estate must grant letters of administration of the goods and chattels, rights, and credits, unadministered, to the person entitled thereto, as in cases of intestacy.
(Code 1852, §1720; Code 1867, §2043; Code 1876, §2412; Code 1886, §2064; Code 1896, §111; Code 1907, §2533; Code 1923, §5755; Code 1940, T. 61, §175.)
After a final settlement, there being personally not administered which requires an administrator for the proper disposition thereof, the judge of probate of the proper county must proceed to appoint a suitable person as administrator who shall give bond as required by law and administer the personal estate of the decedent not already administered.
(Code 1940, T. 61, §177.)
The removal of any resident executor from this state to any other state or territory of the United States shall not be cause for his or her removal from the office of executor; but, on and after his or her removal, he or she shall in all respects be regarded and treated as a nonresident executor, and the provisions of Article 8 of this chapter shall be applicable to him or her. Upon such removal, his or her sureties may require him or her to resign and make final settlement of his or her accounts or give a new bond as such executor.
(Code 1876, §2384; Code 1886, §2043; Code 1896, §89; Code 1907, §2565; Code 1923, §5788; Code 1940, T. 61, §150.)
An administrator may be removed, and his or her letters revoked for his or her removal from the state; and an administrator or executor may be removed and his or her letters revoked for any of the following causes:
(1) Imbecility of mind; intemperance; continued sickness, rendering him or her incapable of the discharge of his or her duties; or when from his or her conduct or character there is reason to believe that he or she is not a suitable person to have the charge and control of the estate.
(2) Failure to make and return inventories or accounts of sale; failure to make settlements as required by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate.
(3) The wasting, embezzlement, or any other maladministration of the estate.
(4) The using of any of the funds of the estate for his or her own benefit.
(5) A sentence of imprisonment in the penitentiary, county jail or for hard labor for the county for a term of 12 months or more.
(Code 1852, §1696; Code 1867, §2017; Code 1876, §2386; Code 1886, §2045; Code 1896, §92; Code 1907, §2566; Acts 1919, No. 37, p. 40; Code 1923, §5789; Code 1940, T. 61, §178.)
A sentence of imprisonment in the penitentiary, imprisonment in the county jail or hard labor for the county, for a term of 12 months or more, terminates the right of the convict to execute the office of executor or administrator, in the same manner as if he or she had been removed from office and extinguishes all private trusts not susceptible of delegation by him or her.
(Code 1852, §263; Code 1867, §3811; Code 1876, §4511; Code 1886, §4505; Code 1896, §5427; Code 1907, §7636; Code 1923, §5292; Code 1940, T. 61, §179.)
An executor or administrator may also be required to give additional bond and, in default thereof, may be removed and his or her letters revoked, in the following cases:
(1) When it is shown to the court by his or her sureties, or either of them, that he or she has become, or is likely to become, insolvent, and that they have sustained, or probably will sustain, loss thereby.
(2) When his or her letters have been granted on insufficient security, or the security has become insufficient since the grant, or any of his or her sureties have died or have removed from the state.
(3) When the penalty of the bond is not sufficient to secure the due performance of the trusts committed to him or her.
(Code 1852, §1697; Code 1867, §2018; Code 1876, §2387; Code 1886, §2046; Code 1896, §93; Code 1907, §2567; Code 1923, §5790; Code 1940, T. 61, §180.)
Application for the removal of any executor or administrator, or for an additional bond, must be in writing, verified by oath, must specify the grounds of complaint and must be made to the court from which letters issued, or in which the administration is pending; and may be made by any creditor, legatee, devisee, heir, or distributee, or by any coexecutor, coadministrator or the sureties, or any of them.
(Code 1852, §§1698, 1699; Code 1867, §§2019, 2020; Code 1876, §§2388, 2389; Code 1886, §2047; Code 1896, §94; Code 1907, §2568; Code 1923, §5791; Code 1940, T. 61, §181.)
A citation to such executor or administrator to appear and answer the application on a day specified therein must be served on him or her five days before the hearing of the complaint.
(Code 1852, §1700; Code 1867, §2021; Code 1876, §2390; Code 1886, §2048; Code 1896, §95; Code 1907, §2569; Code 1923, §5792; Code 1940, T. 61, §182.)
If such executor or administrator is not an inhabitant of the state, or is absent therefrom, upon such fact being shown by proof satisfactory to the judge, he or she must direct notice of such application to be given by publication for three successive weeks in some newspaper published in the county, or if none is published therein in the newspaper published nearest to the courthouse thereof; and the applicant must pay the expense of such publication, which may be taxed as costs.
(Code 1852, §§1701, 1702; Code 1867, §§2022, 2023; Code 1876, §§2391, 2392; Code 1886, §2049; Code 1896, §96; Code 1907, §2570; Code 1923, §5793; Code 1940, T. 61, §183.)
On the day specified in the citation, or after publication as required, or on any day thereafter to which the hearing may be continued, the court must proceed to hear the evidence, and may, in its discretion, examine the parties; and when the application charges embezzlement, waste or any other maladministration of the estate, either party is entitled to a trial by jury.
(Code 1852, §§1703, 1704; Code 1867, §§2024, 2025; Code 1876, §§2393, 2394; Code 1886, §2050; Code 1896, §97; Code 1907, §2571; Code 1923, §5794; Code 1940, T. 61, §184.)
If the application is determined against the applicant, he or she, otherwise the executor or administrator, must be taxed with the costs, for which execution may be issued.
(Code 1852, §1705; Code 1867, §2026; Code 1876, §2395; Code 1886, §2051; Code 1896, §98; Code 1907, §2572; Code 1923, §5795; Code 1940, T. 61, §185.)
If an additional bond is required by the court, an order must be made to that effect, allowing such time to give the same as the court may think reasonable; and if such order is not complied with within the time prescribed, the executor or administrator must be removed and his or her letters revoked.
(Code 1852, §§1706, 1707; Code 1867, §§2027, 2028; Code 1876, §§2396, 2397; Code 1886, §2052; Code 1896, §99; Code 1907, §2573; Code 1923, §5796; Code 1940, T. 61, §186.)
Whenever the judge of probate has reason to believe that any just ground or cause of removal exists, or that an additional bond should be required of an executor, or administrator, he or she may cause a citation to be served on such executor or administrator, requiring him or her to appear on a day therein named, five days after service thereof, and show cause why he or she should not be removed, or give an additional bond, as the case may be; and if no sufficient cause is shown, the court may remove such executor or administrator, or require him or her to give an additional bond; and, if an additional bond is required, on failure to give the same within the time prescribed the court may remove him or her.
(Code 1852, §§1708, 1709; Code 1867, §§2029, 2030; Code 1876, §§2398, 2399; Code 1886, §2053; Code 1896, §100; Code 1907, §2574; Code 1923, §5797; Code 1940, T. 61, §187.)
Any testator may, by express provision in his or her will to that effect, exempt an executor from filing an inventory or making any report or final settlement, and when such provision is made, such inventory, report or final settlement shall not be required except in the following cases:
(1) When any executor, heir, legatee, or other person interested in the estate makes affidavit showing his or her interest, and alleging that such interest is or will be endangered for want of security.
(2) When, in the opinion of the judge of the court having jurisdiction of the estate, the estate is likely to be wasted, to the prejudice of any person interested therein.
(Code 1923, §5803; Code 1940, T. 61, §190.)
The inventory must set forth the property, enumerating each item separately, all debts or demands due or accruing to the decedent, the time such debts or demands are due, the amount of the same and how evidenced, with the credits, if any, and the name of the debtor and the amount of money.
(Code 1852, §1725; Code 1867, §2048; Code 1876, §2417; Code 1886, §2069; Code 1896, §116; Code 1907, §2580; Code 1923, §5804; Code 1940, T. 61, §191; Acts 1984, No. 84-258, p. 426, §1.)
On the return of the inventory, the executor or administrator must take and subscribe an oath, to be administered by the judge of probate, or any justice of the peace or notary public of the county, that such inventory is full and complete, as to the property of the decedent, which has come to his or her knowledge or possession.
(Code 1852, §1726; Code 1867, §2049; Code 1876, §2418; Code 1886, §2070; Code 1896, §117; Code 1907, §2581; Code 1923, §5805; Code 1940, T. 61, §192; Acts 1984, No. 84-258, p. 426, §1.)
Six months after his or her appointment, and at any time thereafter when required by the court, either upon its own motion or upon the application of any person interested in the estate, the executor or administrator must render, for the information of the court, an exhibit under oath, showing the amount of all claims presented against the estate, and the names of the claimants, and all other matters necessary to show the condition of its affairs.
(Code 1923, §5810; Code 1940, T. 61, §197.)
The probate court may authorize the executor or administrator, on application made and good cause shown, to keep the real and personal estate, or any portion thereof, together for such length of time as the court may deem advisable, not exceeding 10 years, and employ laborers to cultivate, improve, keep in repair, and carry on the plantation belonging to the estate.
(Code 1852, §1902; Code 1867, §2263; Code 1876, §2602; Code 1886, §2210; Code 1896, §278; Code 1907, §2743; Code 1923, §5982; Code 1940, T. 61, §198.)
Whenever any executor or administrator has kept an estate together, under the order of the probate court, for 10 years, the time may be extended annually, upon application and good cause shown, if the court is of the opinion that the interest of such estate demands such extension.
(Code 1867, §4431; Code 1876, §2603; Code 1886, §2211; Code 1896, §279; Code 1907, §2744; Code 1923, §5983; Code 1940, T. 61, §199.)
When a share or shares of real or personal property of any decedent is or are set apart or distributed to any widow, heir at law, or distributee of such decedent, and it appears to the satisfaction of the court that it is to the interest of the parties interested in the estate that such share or shares should be kept and worked together with such estate remaining undivided, the probate court, upon the application of the executor or administrator, and of the owner or owners of such share or shares, may order the executor or administrator to keep such share or shares, and work the same, together with the estate remaining undivided, for a term not exceeding 10 years; but such order must not be granted, if in conflict with the will of the testator.
(Code 1867, §2264; Code 1876, §2604; Code 1886, §2212; Code 1896, §280; Code 1907, §2745; Code 1923, §5984; Code 1940, T. 61, §200.)
The executor or administrator must pay, at the end of each year, to the owner or owners of such share or shares a proportionate share of the profits arising from such estate, and is entitled to a credit for same; but if it shall appear, on a settlement of his accounts, that he has not paid the same, a decree therefor in favor of the owner or owners must be rendered by the probate court.
(Code 1867, §2265; Code 1876, §2605; Code 1886, §2213; Code 1896, §281; Code 1907, §2746; Code 1923, §5985; Code 1940, T. 61, §201.)
The probate court has power to grant orders authorizing administrators, in cases of intestacy, to hire a sufficient number of laborers to keep up and cultivate the plantation of their intestates, where it is deemed by the court advisable to order the same to be kept together for a term of years.
(Code 1867, §2266; Code 1876, §2606; Code 1886, §2214; Code 1896, §282; Code 1907, §2747; Code 1923, §5986; Code 1940, T. 61, §202.)
Before granting such order, the court must require the administrator to file a petition under oath, setting forth the facts upon which the application is based; and, upon the filing of such petition, the court must appoint a day for the hearing of the same, and must give 10 days’ notice thereof by advertisement in some newspaper published in the county, or if there be no newspaper published in the county, then by posting the notice at the courthouse door. On the day appointed, the court must proceed to hear and determine the same upon the evidence adduced by the petitioner, or the other parties in interest, and any other evidence that the court may, in its discretion, cause to be adduced. Unless good cause be shown to the contrary, the court must grant such order, and must require the petitioner to return a written report of such hiring under oath, on or before a day specified in such order.
(Code 1867, §2266; Code 1876, §2606; Code 1886, §2215; Code 1896, §283; Code 1907, §2748; Code 1923, §5987; Code 1940, T. 61, §203.)
When the estate of any decedent is kept together the real estate may be cultivated under the direction of the executor or administrator.
(Code 1852, §1903; Code 1867, §2267; Code 1876, §2607; Code 1886, §2216; Code 1896, §284; Code 1907, §2749; Code 1923, §5988; Code 1940, T. 61, §204; Acts 1984, No. 84-258, p. 426, §1.)
The provisions of the preceding sections of this article must not be so construed as to conflict with the will of the testator.
(Code 1852, §1904; Code 1867, §2268; Code 1876, §2608; Code 1886, §2217; Code 1896, §285; Code 1907, §2750; Code 1923, §5989; Code 1940, T. 61, §205.)
(a) The executor or administrator must make annual settlements of such estates, as required in other cases, and in such settlements he or she must show how such estate has been managed, crops made, expenses incurred, and the disposition of all moneys received; and he or she must also show the amounts appropriated and expended for each and every person entitled to any distribution from such estate.
(b) The accounts and vouchers, evidence and statement of the heirs and legatees must be filed, notice given and contest made, in the same manner as on annual settlements in other cases.
(c) Such settlement may be compelled by attachment, or the probate court may proceed in the same manner as in other cases, when an executor or administrator, being cited to make a settlement, fails to do so.
(Code 1852, §§1905-1908; Code 1867, §§2269-2272; Code 1876, §§2609-2612; Code 1886, §§2218-2220; Code 1896, §§286-288; Code 1907, §§2751-2753; Code 1923, §§5990-5992; Code 1940, T. 61, §§206-208.)
The provisions of this article in relation to keeping estates together must not be so construed as to affect the rights of creditors, or to prevent any legatee or distributee from receiving his or her proportion of the estate on his or her arriving at full age.
(Code 1852, §1909; Code 1867, §2273; Code 1876, §2613; Code 1886, §2221; Code 1896, §289; Code 1907, §2754; Code 1923, §5993; Code 1940, T. 61, §209.)
(a) All claims against the estate of a decedent, held by the personal representative of the decedent or by an assignee or transferee of the personal representative, or in which the personal representative has an interest, whether due or to become due, must be presented within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed in Section 43-2-61 must be allowed thirty days after notice within which to present the claim, by filing the claims, or statement thereof, verified by affidavit, in the office of the judge of probate, in all respects as provided by Section 43-2-352. All claims not so presented and filed are forever barred, and the payment or allowance thereof is prohibited. But this subsection shall not apply to claims of personal representatives to compensation for their services as such, nor to sums properly disbursed by them in the course of administration.
(b) All claims against the estate of a decedent, other than the claims referred to in subsection (a) of this section, whether due or to become due, must be presented within six months after the grant of letters, or within five months from the date of the first publication of notice, whichever is the later to occur, provided however, that any creditor entitled to actual notice as prescribed in Section 43-2-61 must be allowed 30 days after notice within which to present the claim, and if not presented within that time, they are forever barred and the payment or allowance thereof is prohibited. Presentation must be made by filing a verified claim or verified statement thereof in the office of the judge of probate of the county in which the letters are granted. Claims which have not been filed and which are liens against the property of the decedent may be paid by the personal representative to protect the assets of the estate. The provisions of this subsection do not apply to heirs or devisees claiming as heirs or devisees.
(Code 1852, §§1883, 1884; Code 1867, §§2239, 2240; Code 1876, §§2597, 2598; Code 1886, §§2081, 2082; Code 1896, §§129, 130, 132; Code 1907, §§2589, 2590, 2592; Code 1923, §§5814, 5815, 5817; Acts 1931, No. 722, p. 839; Acts 1931, No. 723, p. 840; Code 1940, T. 61, §§210, 211, 213; Acts 1989, No. 89-811, p. 1618, §3.)
The provisions of subsection (b) of Section 43-2-350 do not apply to minors or persons of unsound mind who have no legal guardian at the time of the grant of letters testamentary or of administration; but such minors and persons of unsound mind are allowed six months after the appointment of a guardian, or, if none be appointed, six months after the removal of their respective disabilities, in which to present their claims.
(Code 1852, §1884; Code 1867, §2240; Code 1876, §2598; Code 1886, §2082; Code 1896, §131; Code 1907, §2591; Code 1923, §5816; Code 1940, T. 61, §212.)
The presentation must be made by filing a verified claim, or a verified statement thereof, in the office of the judge of probate in which letters are granted, and the same must be docketed with a note of the date of such presentation; and, if required, a statement must be given by such judge, showing the date of presentation. Every such claim or statement thereof so presented must be verified by the oath of the claimant or some person having knowledge of the correctness thereof, and that the amount claimed is justly due, or to become due, after allowing all proper credits. Any defect or insufficiency in the affidavit may be supplied by amendment at any time. All claims not presented within six months from the granting of letters testamentary or letters of administration shall be forever barred, and the payment or allowance thereof is prohibited. But this section shall not apply to claims of executors or administrators to compensation for their services as such, nor to sums properly disbursed by them in the course of administration.
(Code 1852, §1885; Code 1867, §2241; Code 1876, §2599; Code 1886, §2083; Code 1896, §133; Code 1907, §2593; Code 1923, §5818; Acts 1931, No. 717, p. 837; Code 1940, T. 61, §214.)
The revival of any action pending against any person at the time of his or her death, which by law survives against his or her personal representative, by notice served on the executor or administrator within six months after the grant of letters, shall be considered as a presentation of the claim on which the action is founded.
(Code 1852, §1886; Code 1867, §2242; Code 1876, §2600; Code 1886, §2084; Code 1896, §134; Code 1907, §2594; Code 1923, §5819; Acts 1931, No. 719, p. 838; Code 1940, T. 61, §215.)
The personal representative of the estate of a decedent may give notice in writing to the claimant or anyone having a beneficial interest in a claim against the estate that such claim is disputed in whole or in part; if in part, specifying the part disputed. Thereupon the judge of the court having jurisdiction of the administration of the estate shall, on written application of either the personal representative or the claimant, hear and pass on the validity of such claim, or part thereof, first giving 10 days’ notice of such hearing to the interested parties. If the claimant in such proceeding shall fail to recover upon the disputed part of such claim, he or she shall be taxed with the costs thereof. This section shall not apply to claims against estates declared insolvent. If the judgment on any such claim is rendered by a probate court, either party may, within 30 days after the rendition of such judgment, appeal to the circuit court of the county in which the administration of said estate is pending, and the trial of the validity of said claim in said circuit court shall be de novo, and upon demand of either party, filed in the circuit court within 30 days from the taking of said appeal, shall be tried by a jury. If the administration of an estate in which a claim is disputed is pending in the circuit court, the trial of the validity of said claim shall be by jury upon demand of either party filed within 30 days after written notice that the claim is disputed. In any event either party may appeal to the supreme court or court of civil appeals, as the case may be, from the judgment of the circuit court, such appeal to be taken within 42 days and as other appeals are taken.
(Code 1896, §2818; Code 1907, §4857; Code 1923, §8971; Acts 1939, No. 517, p. 806; Code 1940, T. 61, §216; Acts 1943, No. 324, p. 308.)
All the property of the decedent, except as otherwise provided, is charged with the payment of his or her debts, and, if necessary, may be sold for that purpose.
(Code 1852, §1737; Code 1867, §2060; Code 1876, §2429; Code 1886, §2078; Code 1896, §125; Code 1907, §2596; Code 1923, §5821; Code 1940, T. 61, §217.)
The debts against the estates of decedents are to be paid in the following order:
(1) The funeral expenses.
(2) The fees and charges of administration.
(3) Expenses of the last sickness.
(4) Taxes assessed on the estate of the decedent previous to his or her death.
(5) Debts due to employees, as such, for services rendered the year of the death of the decedent.
(6) The other debts of the decedent.
(Code 1867, §1741; Code 1876, §2430; Code 1886, §2079; Code 1896, §126; Code 1907, §2597; Code 1923, §5822; Code 1940, T. 61, §218.)
No executor or administrator must, before the expiration of six months from the grant of letters, give a preference in the payment of any debt over others of the same class; nor is a debt due and payable entitled to any preference over debts of the same class which are not due.
(Code 1852, §1742; Code 1867, §2065; Code 1876, §2431; Code 1886, §2080; Code 1896, §127; Code 1907, §2598; Code 1923, §5823; Code 1940, T. 61, §219.)
No claim against the estate of a decedent whether in favor of the personal representative or any other person, which was barred by the statute of limitations at the time of the death of such decedent, shall be paid by or allowed to the personal representative, unless the payment of such claim be expressly directed by a testator in his or her will.
(Code 1896, §128; Code 1907, §2599; Code 1923, §5824; Code 1940, T. 61, §220.)
The payment of any debt against the estate of the executor or administrator, after six months from the grant of letters, protects him or her to the extent of the payment from liability on any other debt against such estate which had not been presented at the time of such payment.
(Code 1852, §1790; Code 1867, §2117; Code 1876, §2494; Code 1886, §2086; Code 1896, §136; Code 1907, §2600; Code 1923, §5825; Acts 1931, No. 722, p. 839; Code 1940, T. 61, §221.)
Any debt not due, which has been presented, may be paid by an executor or administrator after six months from the grant of letters, and the provisions of Section 43-2-374 include such debts; but such payment must not be made unless the creditor accepts, in discharge of such debt, such an amount as, with interest from the day of payment to the day when such debt is due, would make the amount thereof.
(Code 1852, §1791; Code 1867, §2118; Code 1876, §2495; Code 1886, §2087; Code 1896, §137; Code 1907, §2601; Code 1923, §5826; Acts 1931, No. 717, p. 837; Code 1940, T. 61, §222.)
The probate court having jurisdiction of the estate may authorize any executor or administrator to compromise or sell any bad or doubtful claim due the estate, on the written application of the executor or administrator, verified by his or her affidavit, and stating the facts, supported by evidence satisfactory to the court, that such claim is bad or doubtful, and that a compromise or sale thereof will promote the interests of the estate.
(Code 1876, §2505; Code 1886, §2088; Code 1896, §138; Code 1907, §2602; Code 1923, §5827; Code 1940, T. 61, §223.)
Such application must not be heard until 10 days after the filing thereof, and notice thereof may be given to some person adversely interested whenever the court may deem just. When, or at such time as the court may continue the hearing, the court, satisfied that the claim is bad or doubtful, and that a sale or compromise thereof will promote the interests of the estate, must make and enter a decree directing the sale or compromise of the claim, as may be best for the interests of the estate. If a sale is decreed, it must be made by the executor or administrator at the courthouse of the county, or such other place as the court may direct, at public outcry to the highest bidder for cash, after having first given notice of the time and place thereof by publication, once a week for three successive weeks, in some newspaper published in the county, or if none is published therein, by posting notices for three weeks at the courthouse door, and three other public places in the county, or the notice may be given in any manner and for any time which may be directed by the court.
(Code 1876, §2505; Code 1886, §2089; Code 1896, §139; Code 1907, §2603; Code 1923, §5828; Code 1940, T. 61, §224.)
The executor or administrator shall make report, in writing and under oath, of such sale or compromise within 30 days thereafter; and when such report is made, the sale or compromise may be confirmed, unless good cause is shown for setting the same aside.
(Code 1876, §2506; Code 1886, §2090; Code 1896, §140; Code 1907, §2604; Code 1923, §5829; Code 1940, T. 61, §225.)
Any executor or administrator, by authority of the probate court given on his or her written application, may, in his or her representative capacity, give his or her note, bond or bill for the purpose of extending or settling a debt of the decedent, or settling a debt contracted by such representative for articles, or for work and labor for the estate; and for such note, bond or bill the estate is liable, and the executor or administrator is not personally liable. But the heirs, devisees, distributees, or legatees must have 10 days’ notice of such application.
(Code 1867, §2066; Code 1876, §2432; Code 1886, §2091; Code 1896, §141; Code 1907, §2605; Code 1923, §5830; Code 1940, T. 61, §226.)
Whenever a debtor of the decedent is unable to pay all his or her debts, the executor or administrator, with the approbation of the court or judge thereof, may compound with him or her and give him or her a discharge, upon receiving a fair and just dividend of his or her effects. A compromise may also be authorized when it appears to be just, and for the best interest of the estate.
(Code 1923, §5831; Code 1940, T. 61, §227.)
Any part of the personal property of a decedent, including land warrants and choses in action, may be sold only by order of the court, on the written application of the executor or administrator, verified by affidavit, in the following cases, unless, in such cases, power to sell is conferred by the will:
(1) For the payment of debts.
(2) To make distribution among the distributees or legatees.
(3) To prevent the waste or destruction of property liable to waste, or of a perishable nature, if it is proved that the sale would be beneficial to the estate.
(Code 1852, §1743; Code 1867, §2067; Code 1876, §2433; Code 1886, §2092; Code 1896, §142; Code 1907, §2606; Code 1923, §5832; Code 1940, T. 61, §228.)
Notice of such application must be given to some person adversely interested in such manner, and for such length of time, not less than three weeks, as the judge of probate may require; but when the property is perishable, and it is so specified in the application, no notice is required if the judge is satisfied of the truth of the allegations contained in the application.
(Code 1867, §2068; Code 1876, §2434; Code 1886, §2093; Code 1896, §143; Code 1907, §2607; Code 1923, §5833; Code 1940, T. 61, §229.)
Any person interested may appear and contest such application, and show that no sale is required, or that it is more for the interest of the estate that other property should be sold.
(Code 1852, §1745; Code 1867, §2069; Code 1876, §2435; Code 1886, §2094; Code 1896, §144; Code 1907, §2608; Code 1923, §5834; Code 1940, T. 61, §230; Acts 1984, No. 84-258, p. 426, §1.)
When the application is granted for the sale of any personal property, the executor or administrator must give notice of the day, place and terms of sale, and a description of the property to be sold, by advertisement for three successive weeks in some newspaper published in the county where the sale is to take place, or, by posting notice at the courthouse door and at three other public places in the county. But when the property is perishable, or the expense of keeping it is very great, the sale may be made after five days’ notice, which may be given by one insertion in a newspaper published in the county where the sale is to take place, or, if there be no such paper, by posting at the courthouse door, and at three other public places in the county. In addition to the notice prescribed in this article, the court may direct the giving of notice by printed handbills, or posters, to be distributed and posted in the manner best calculated to give extended notice of the sale.
(Code 1852, §1746; Code 1867, §2070; Code 1876, §2436; Code 1886, §2095; Code 1896, §145; Code 1907, §2609; Code 1923, §5836; Code 1940, T. 61, §231.)
Such sale must not commence before 11:00 A.M., nor continue longer than 4:00 P.M.; and, if not completed within those hours, it may be continued from day to day.
(Code 1852, §1747; Code 1867, §2071; Code 1876, §2437; Code 1886, §2096; Code 1896, §146; Code 1907, §2610; Code 1923, §5837; Code 1940, T. 61, §232.)
Such sale may be for cash or on credit not exceeding 12 months, as the court may direct; and if on credit, notes, or bonds, with at least two sufficient sureties, must be taken by the executor or administrator.
(Code 1852, §§1748, 1752; Code 1867, §§2072, 2077; Code 1876, §§2438, 2444; Code 1886, §2097; Code 1896, §147; Code 1907, §2611; Code 1923, §5838; Code 1940, T. 61, §233.)
When the highest amount bid for the property, or any part thereof, is, in the opinion of the executor or administrator, greatly less than its fair value, he or she may withdraw the property and postpone the sale.
(Code 1896, §148; Code 1907, §2612; Code 1923, §5839; Code 1940, T. 61, §234.)
If the purchaser fails to comply with the terms of the sale, the executor or administrator may again proceed to advertise and sell the property. If, on another and a completed sale, the property sells for a less sum than the amount bid at the former sale, the purchaser so in default is liable to the executor, administrator or any person damaged for the deficiency, and also the expense of the sale.
(Code 1896, §149; Code 1907, §2613; Code 1923, §5840; Code 1940, T. 61, §235.)
Any crop commenced by a decedent may be completed and gathered by the executor or administrator, and, the expenses of the plantation being deducted therefrom, is assets in his or her hands, and may be sold by him or her at private sale, either in or out of the state.
(Code 1852, §§1750, 1901; Code 1867, §§2073, 2261, 2262; Code 1876, §§2439, 2440, 2441; Code 1886, §2098; Code 1896, §150; Code 1907, §2614; Code 1923, §5841; Code 1940, T. 61, §236.)
All farm products coming into the hands of the executor or administrator as assets of the estate may be sold by him or her at public or private sale, at the reasonable market value, either in or out of the state.
(Code 1923, §5842; Code 1940, T. 61, §237.)
Executors and administrators may assign and transfer by endorsement, without recourse or warranty, any mortgages, notes, or accounts belonging to a decedent, provided he or she receives the full amount due thereon, and provided said mortgages, notes, or accounts shall have been entered on the inventory returned to the court.
(Code 1923, §5835; Code 1940, T. 61, §238.)
(a) When any person engaged in mercantile business dies, leaving a stock of goods, wares, and merchandise, and leaving no surviving partner in such business, the executor or administrator of his or her estate may sell such stock or goods, wares, or merchandise, either at public or private sale, by wholesale or retail, upon first obtaining an order for such sale, as provided in subsection (b) of this section, from the probate court having jurisdiction of the estate.
(b) To obtain such order, the executor or administrator must file in such court an application in writing, verified by his or her oath, setting forth with reasonable certainty the kind, quantity and estimated value of such goods, wares, or merchandise, and any facts or circumstances that may render it necessary or expedient to sell the same; and if it should appear to the court that it would benefit those interested in the estate that such order should be made, the court must make the same, and may, in its discretion, prescribe such terms and conditions of sale as may seem to the court most advantageous to those interested in the estate. Such sale must be made within one year from the making of such order.
(Code 1867, §§2074, 2075; Code 1876, §§2442, 2443; Code 1886, §§2099, 2100; Code 1896, §§151, 152; Code 1907, §§2615, 2616; Code 1923, §§5843, 5844; Code 1940, T. 61, §§239, 240.)
All accounts of sales of personalty made by the executor or administrator must be returned on oath, within 30 days after such sale, and must be recorded; and such returns may be compelled by attachment.
(Code 1852, §1753; Code 1867, §2078; Code 1876, §2445; Code 1886, §2101; Code 1896, §153; Code 1907, §2617; Code 1923, §5845; Code 1940, T. 61, §241.)
Lands may be sold by the executor or by the administrator with the will annexed, for the payment of debts, when the will gives no power to sell the same for that purpose.
(Code 1852, §1754; Code 1867, §2079; Code 1876, §2447; Code 1886, §2103; Code 1896, §155; Code 1907, §2619; Code 1923, §5847; Code 1940, T. 61, §243; Acts 1984, No. 84-258, p. 426, §1.)
The executor or administrator may rent the decedent’s lands at public outcry, or, when the interest of the estate requires it, privately; and such rent is assets; but when lands are rented privately, he or she must report such renting to the probate court of the proper county within 30 days thereafter.
(Code 1852, §1751; Code 1867, §2076; Code 1876, §2446; Code 1886, §2102; Code 1896, §154; Code 1907, §2618; Code 1923, §5846; Code 1940, T. 61, §242.)
In case of intestacy, lands may be sold by the administrator for the payment of debts.
(Code 1852, §1755; Code 1867, §2080; Code 1876, §2448; Code 1886, §2104; Code 1896, §156; Code 1907, §2620; Code 1923, §5848; Code 1940, T. 61, §244; Acts 1984, No. 84-258, p. 426, §1.)
Lands of an estate may be sold by order of the probate court having jurisdiction of the estate when the same cannot be equitably divided among the heirs or devisees, when an adult heir or devisee files his or her written consent that the land be sold.
(Code 1852, §1867; Code 1867, §2221; Code 1876, §2449; Code 1886, §2105; Code 1896, §157; Code 1907, §2621; Code 1923, §5849; Code 1940, T. 61, §245.)
The application for the sale of lands, either for payment of debts or for division, must be made by the executor or administrator in writing, verified by affidavit, to the probate court having jurisdiction of the estate, must describe the lands accurately, must give the names of the heirs or devisees, and their places of residence and must also state whether any, and which of such heirs or devisees, are under the age of 19 years or of unsound mind; and such application may be contested by any party interested in the estate.
(Code 1852, §§1759, 1868; Code 1867, §§2085, 2222; Code 1876, §§2450, 2453; Code 1886, §2106; Code 1896, §158; Code 1907, §2622; Code 1923, §5851; Code 1940, T. 61, §246.)
(a) The court must appoint a day, not less than 30 days from the time of making such application, for the hearing thereof, and must appoint a proper person, not a petitioner or of kin to a petitioner, as a guardian ad litem, to represent the minors or persons of unsound mind, if any there be, and must issue a citation to the heirs or devisees of full age, and residing in this state, notifying them of the application, and the day appointed for hearing the same, which must be served on them 10 days before the day appointed for the hearing.
(b) If such application be for the sale of land for the payment of debts, notice must also be given by publication, once a week for three successive weeks, in some newspaper published in the county, or by posting up notice at the courthouse door and three other public places in the county, at the discretion of the court. If no newspaper is published in the county, notices must be posted as above prescribed.
(Code 1852, §1869; Code 1867, §§2223, 2224; Code 1876, §§2451, 2454; Code 1886, §§2107, 2108; Code 1896, §§159, 160; Code 1907, §§2623, 2624; Code 1923, §§5852, 5853; Code 1940, T. 61, §§247, 248.)
If any of the heirs or devisees reside out of this state, such heirs or devisees may be brought into court by publication, once a week for three successive weeks, in a newspaper published in the county in which the application is made, or if none is published therein, then in the newspaper published nearest to the courthouse of such county.
(Code 1852, §1871; Code 1867, §2227; Code 1876, §2452; Code 1886, §2109; Code 1896, §161; Code 1907, §2625; Code 1923, §5854; Code 1940, T. 61, §249.)
If it shall be averred in an application for the sale of lands for the payment of debts or for division, that the names of any of the heirs or devisees are unknown, that the petitioner has made diligent inquiry and cannot ascertain the same, the cause may proceed against them without naming them; but the court must make publication as in case of nonresidents, describing such unknown parties as near as may be by the character in which they are made parties and with reference to their interest in the lands sought to be sold, and must appoint a suitable and competent person not of kin or counsel to the petitioner, as special guardian to represent such unknown parties. The shares or interests of such unknown parties, in the proceeds of lands sold for division, shall be paid into court and there retained and paid out to the proper parties when ascertained.
(Code 1896, §162; Code 1907, §2626; Code 1923, §5855; Code 1940, T. 61, §250.)
The person appointed to represent minors, or persons of unsound mind, or unknown parties, must deny in writing the allegations contained in the application, and, if necessary, must employ counsel to defend the interests of those he or she represents. He or she is entitled to reasonable compensation, to be fixed by the court, and taxed and collected as costs.
(Code 1867, §2224; Code 1876, §2454; Code 1886, §2110; Code 1896, §163; Code 1907, §2627; Code 1923, §5856; Code 1940, T. 61, §251.)
On the hearing of such application, and when the application is by an executor or administrator with the will annexed, that no power is given by the will for that purpose, the court may direct the sale of all, or such portion of the real estate as may be necessary to pay the debts; and such sale may be had on such credit as the court may direct, not exceeding two years.
(Code 1852, §1760; Code 1867, §2086; Code 1876, §2456; Code 1886, §2112; Code 1896, §165; Code 1907, §2629; Code 1923, §5858; Code 1940, T. 61, §253; Acts 1984, No. 84-258, p. 426, §1.)
The facts stated in an application to sell land for distribution may be proved or disproved by the deposition of disinterested witnesses, or by oral examination of disinterested witnesses in open court, which must be reduced to writing, filed and recorded; and if the facts stated in such application are proven to the satisfaction of the court by the evidence, the court may order a sale of the land, which must be sold on such terms as the court may direct, not exceeding a credit of three years.
(Code 1852, §1872; Code 1867, §2228; Code 1876, §2457; Code 1886, §2113; Code 1896, §166; Code 1907, §2630; Code 1923, §5859; Code 1940, T. 61, §254.)
No order for the sale of land belonging to any estate, whether for the payment of debts, or for division, must be made when there are minors or persons of unsound mind or unknown parties interested in such estate, unless the probate court has taken evidence by deposition, showing the necessity of such sale; and such evidence must be taken, whether the allegations in the petition are denied or not by the guardian appointed by the court to represent the minors or persons of unsound mind or unknown parties; and any order of sale and sale, made without a compliance with the requisitions of this section, shall be wholly void.
(Code 1867, §2225; Code 1876, §2458; Code 1886, §2114; Code 1896, §167; Code 1907, §2631; Code 1923, §5861; Code 1940, T. 61, §255.)
In applications to the probate court for the sale of lands, the patent or deed shall be sufficient evidence to authorize the court to proceed and hear the application.
(Code 1867, §2129; Code 1876, §2473; Code 1886, §2131; Code 1896, §186; Code 1907, §2651; Code 1923, §5881; Code 1940, T. 61, §275.)
If, on the hearing of the application, the facts are not proved, the same must be dismissed at the cost of the applicant, for which execution may issue against him or her and his or her sureties.
(Code 1852, §1761; Code 1867, §2087; Code 1876, §2459; Code 1886, §2115; Code 1896, §168; Code 1907, §2632; Code 1923, §5862; Code 1940, T. 61, §256.)
When the application for the sale of land for the payment of debts or division is granted and the land directed to be sold, the executor or administrator must give notice of the day, place, and terms of sale, and a description of the property to be sold, by advertisement for three successive weeks in some newspaper published in the county where the sale is to take place; and in case of a sale of lands lying in one body, but in more than one county, such notice must be given in each of the counties. If there is no such paper published in the county or in any county in which notice is required to be given, then, as to the county having no such paper, the notice must be given by posting at the courthouse door, and at three other public places in the county. In addition to the notice prescribed in this section, the court may direct the giving of notice by printed handbills or posters, to be distributed and posted in the manner best calculated to give extended notice of the sale.
(Code 1852, §1762; Code 1867, §2088; Code 1876, §2460; Code 1886, §2116; Code 1896, §169; Code 1907, §2633; Code 1923, §5863; Code 1940, T. 61, §257.)
Sections 43-2-414, 43-2-416, and 43-2-417 are applicable to sales of real estate.
(Code 1897, §170; Code 1907, §2634; Code 1923, §5864; Code 1940, T. 61, §258.)
The executor or administrator must secure the purchase money by taking notes or bonds of the purchaser, with sufficient sureties, or taking a purchase money mortgage.
(Code 1852, §1763; Code 1867, §2089; Code 1876, §2461; Code 1886, §2117; Code 1896, §171; Code 1907, §2635; Code 1923, §5865; Code 1940, T. 61, §259.)
Lands may be sold at such place in the county where they lie, as the court may direct; and if they lie in one body, but in more than one county, they may be sold in either of the counties, as the court may direct.
(Code 1852, §1764; Code 1867, §2090; Code 1876, §2462; Code 1886, §2118; Code 1896, §172; Code 1907, §2636; Code 1923, §5866; Code 1940, T. 61, §260.)
The executor or administrator must, within 30 days after such sale, report on oath his or her proceedings to the court, which report must show whether or not the executor or administrator has any personal pecuniary interest in the sale, whether he or she is, directly or indirectly, a purchaser at such sale; and the court must examine the same, and may also examine witnesses in relation thereto.
(Code 1852, §1765; Code 1867, §2091; Code 1876, §2463; Code 1886, §2119; Code 1896, §173; Code 1907, §2637; Code 1923, §5867; Code 1940, T. 61, §261.)
If it appears from the report of the personal representative provided for in Section 43-2-459 that he or she has a personal interest in such sale, or that he or she was, directly or indirectly, the purchaser at such sale, or if the court is satisfied from the examination of witnesses in relation to the report as provided for in Section 43-2-459 that he or she has such personal interest in the sale adverse to the interest of the heirs or devisees, or that he or she was, directly or indirectly, the purchaser at such sale, the court shall set a day for the hearing of such report for confirmation, of which hearing the court shall give the adverse parties at least 10 days’ notice in any mode or manner to be directed by the court.
(Code 1907, §2638; Code 1923, §5868; Code 1940, T. 61, §262.)
(a) If, on such examination, the court is satisfied that the sale was not fairly conducted, or that the amount for which the land, or any portion of the same, sold was greatly less than its real value, the court may vacate such sale, either in whole or in part.
(b) If it is made to appear to the court previous to the confirmation of such sale, that the sureties taken on the notes or bonds of the purchasers or the security given are insufficient, such sale, as to every such purchaser, must not be confirmed until he or she gives security for the purchase money to the satisfaction of the court; and if such security is not given within 10 days the sale must be vacated as to the purchaser thus failing.
(c) When any sale of land is vacated, in whole or in part, according to the provisions of subsections (a) and (b) of this section, the court must direct another sale to be had, which must be advertised and conducted in all respects as is provided for the sale of lands under the provisions of this division.
(Code 1852, §§1766-1768; Code 1867, §§2092-2094; Code 1876, §§2464-2466; Code 1886, §§2120-2122; Code 1896, §§174-176; Code 1907, §§2639-2641; Code 1923, §§5869-5871; Code 1940, T. 61, §§263-265.)
Whenever the court is satisfied that such sale was fairly conducted, and the land sold for an amount not greatly less than its real value, and the purchase money is paid, or sufficiently secured, by mortgage or other personal security, it must make an order confirming such sale; but such order of confirmation shall not be made until after the expiration of 10 days after the report of sale is filed.
(Code 1852, §1769; Code 1867, §2095; Code 1876, §2467; Code 1886, §2123; Code 1896, §177; Code 1907, §2642; Code 1923, §5872; Code 1940, T. 61, §266.)
When lands have been sold on credit, and when the whole of the purchase money has been paid, the executor or administrator must, within 30 days after such complete payment has been made, report the fact of such payment to the court of probate. If he or she fails to do so within the time specified in this section, such report may be compelled of him or her in the manner provided by Section 43-2-465.
(Code 1896, §178; Code 1907, §2643; Code 1923, §5873; Code 1940, T. 61, §267.)
After such confirmation, and when the whole of the purchase money has been paid by the purchaser, or his or her heirs, or any other person holding under him or her directly or derivatively, on the application of such purchaser, or his or her heirs, or such other person holding under him or her, or of the executor or administrator, the court must order a conveyance to be made to such purchaser, or to his or her heirs, or to such other person holding under him or her, as the case may be, by the executor or administrator, or such other person as the court may appoint, conveying all the right, title, and interest which the decedent had, at the time of his or her death, in such lands; and such order shall operate to vest the right, title, and interest of the decedent in such purchaser, or his or her heirs, or such other person holding under him or her.
(Code 1852, §1770; Code 1867, §2096; Code 1876, §2468; Code 1886, §2124; Code 1896, §179; Code 1907, §2644; Code 1923, §5874; Code 1940, T. 61, §268.)
(a) If the executor or administrator fails, within the time required by law, to report any sale of lands made by him or her under the provisions of this article, the purchaser, or his or her heirs, or any other person claiming under him or her directly or derivatively, may, on motion in the probate court, have citation to issue to such executor or administrator, citing him or her to appear within 20 days from the date of the service of the citation, and report the sale; and if such executor or administrator is then a nonresident of the state, or his or her place of residence is unknown to the party asking for the citation, the court, on affidavit being made of either of these facts, must cause service of such citation to be made by publication, once a week for three successive weeks, in some newspaper published in the county, or if none is published therein, in the newspaper published nearest to the courthouse of such county.
(b) If the executor or administrator fails to appear and report the sale, as required by such citation, the probate court must, on the day such executor or administrator is cited to appear, or on such other day as may be set by the court, proceed to hear evidence touching the regularity of the sale, the compliance with the terms of sale, and the adequacy of the price bid for the lands; and if from the evidence the court is satisfied that the sale was regular and fair, that the purchase money has been paid or secured, according to the terms of sale, and that the amount bid at the sale is an adequate price for the lands, an order confirming the sale, and, if the sale was for cash, and the purchase money has been paid, designating and authorizing some person to convey the title to the lands to the party entitled thereto, must be made.
(Code 1886, §§2125, 2126; Code 1896, §§180, 181; Code 1907, §§2645, 2646; Code 1923, §§5875, 5876; Code 1940, T. 61, §§269, 270.)
(a) When a mistake has been made in the description of lands of a decedent sold in good faith under an order of the probate court, either in the petition, order or other proceedings, the court ordering the sale has authority, on the written application of the purchaser, or his or her heirs or personal representatives, or any person holding under him or her, verified by affidavit, to correct such mistake. The application must contain a correct description of the lands sold, and must state the facts, and the names, ages, and places of residence of the personal representatives and heirs or devisees of such decedent, if known, and if there be no personal representative, that fact must be stated; and, upon the filing of such application, the court must appoint a day for the hearing, of which, and of the nature of the application, notice must be given, by personal service, to the personal representative of such decedent, and such of his or her heirs as are of age, and are of sound mind, if residents of the state at least 20 days before the day appointed for the hearing, and also by publication, once a week for three successive weeks, in some newspaper published in the county, or if none is published therein, in a newspaper published nearest to the courthouse thereof. If there is no personal representative of the estate of such decedent, the court must appoint an administrator ad litem to represent the estate in such proceeding; and the court must also appoint a guardian ad litem for such of the heirs or devisees as are under the age of 19 years, or are of unsound mind.
(b) If, upon the hearing, the court is satisfied from the evidence adduced, that the sale of such lands was made in good faith, and that a mistake was made in the description of the lands sold, as stated in the application, a decree must be made and entered, correcting the mistake. If the purchase money has been fully paid, and a deed executed, the court must order the personal representative, or, if there be none, the administrator ad litem, to execute to the party making the application a new deed, conveying to him or her the lands according to the description as corrected.
(Code 1867, §2128; Code 1876, §2472; Code 1886, §§2129, 2130; Code 1896, §§184, 185; Code 1907, §§2649, 2650; Code 1923, §§5879, 5880; Code 1940, T. 61, §§273, 274.)
Real estate received by an executor or administrator in payment of any bad or doubtful claim, on a compromise of such claim made under an order of the probate court, may be distributed by the court having jurisdiction of the estate, by sale or division, upon the same proceedings as are had for the sale or division of real estate of decedents; but such real estate, or the proceeds thereof, if sold, must otherwise be treated and distributed as personal property.
(Code 1867, §2132; Code 1876, §2507; Code 1886, §2132; Code 1896, §187; Code 1907, §2652; Code 1923, §5882; Code 1940, T. 61, §276.)
Lands of an estate may be ordered sold by the probate court having jurisdiction of the estate for the payment of pecuniary legacies, when such legacies are expressly or by necessary implication made a charge on such lands and the will does not confer upon the personal representative the power or authority to make sale of lands for such purpose.
(Acts 1923, No. 481, p. 632; Code 1923, §5883; Code 1940, T. 61, §277.)
The application for the sale of lands for the payment of legacies must be made by the executor by petition, verified by affidavit, to the probate court having jurisdiction of the estate. It must describe the lands accurately and give the names of the devisees and their places of residence and must state whether any and which such devisees are under the age of 19 years or of unsound mind, and must also show that the lands prayed to be sold are charged or chargeable, expressly or by necessary implication, with the payment of pecuniary legacies, and that no power is given the personal representative to sell the lands for such purpose.
(Acts 1923, No. 481, p. 632; Code 1923, §5884; Code 1940, T. 61, §278.)
Notice of the filing of such petition must be given as provided by law on petition by the personal representative to sell lands for division or for the payment of debts, and testimony shall be taken and all other proceedings had and the sale, if ordered, shall be made as now provided by law for the sale of lands by personal representatives for the payment of debts.
(Acts 1923, No. 481, p. 632; Code 1923, §5885; Code 1940, T. 61, §279.)
Every executor or administrator must make annual settlements of his or her administration; and he or she may, when necessary for the interests of the estate, be required to make a settlement at any time.
(Code 1852, §1801; Code 1867, §2136; Code 1876, §2508; Code 1886; §2133; Code 1896, §201; Code 1907, §2666; Code 1923, §5899; Code 1940, T. 61, §293.)
Final settlement may be made at any time after six months from the grant of letters, if the debts are all paid and the condition of the estate in other respects will admit of it.
(Code 1852, §1821; Code 1867, §2157; Code 1876, §2528; Code 1886, §2134; Code 1896, §202; Code 1907, §2667; Code 1923, §5900; Acts 1931, No. 719, p. 838; Code 1940, T. 61, §294.)
In making settlements of an administration, the executor or administrator must proceed as follows:
He or she must make out an account between himself or herself and the estate he or she represents, charging himself or herself with all the assets of the deceased which have come into his or her possession, except the lands, and crediting himself or herself with all the credits he or she is by law entitled to; which account, verified by his or her oath, must be filed with the judge of probate of the court having jurisdiction.
With such account he or she must also file written evidence in his or she possession, on which he or she relies to sustain the credit side of such account, which may consist of an affidavit or any other legal evidence, in the discretion of the executor or administrator.
He or she must, at the same time, file a statement, on oath, of the names of the heirs and legatees of such estate, specifying particularly which are under the age of 19 years; and, if any of them are persons of unsound mind, it must be stated; but if the names, ages, or condition of such heirs or legatees are unknown and they reside out of the state, they may be made parties as unknown heirs or legatees.
He or she must state the sum of funds of the estate which he or she has used for his or her own benefit, the time and the profit resulting from such use, if over legal interest, or, if he or she has not so used any of the funds of the estate for his or her own benefit, he or she must expressly deny on oath that he or she has so used such funds, and any party interested in the the estate may contest the same.
He or she shall be allowed all reasonable premiums paid on his or her bond as administrator or executor.
(Code 1852, §1802; Code 1867, §2137; Code 1876, §2509; Code 1886, §2135; Code 1896, §203; Code 1907, §2668; Code 1923, §5901; Code 1940, T. 61, §295; Acts 1988, 1st Ex. Sess., No. 88-943, p. 565, §1.)
If such statement is not filed, the executor or administrator and his or her sureties are liable for all damages arising therefrom.
(Code 1852, §1804; Code 1867, §2139; Code 1876, §2511; Code 1886; §2136; Code 1896, §204; Code 1907, §2669; Code 1923, §5902; Code 1940, T. 61, §296.)
The court must appoint a competent attorney-at-law as guardian ad litem to represent the interests of minors and persons of unsound mind interested in such settlement.
(Code 1852, §1803; Code 1867, §2138; Code 1876, §2510; Code 1886, §2137; Code 1896, §205; Code 1907, §2670; Code 1923, §5903; Code 1940, T. 61, §297.)
(a) Upon the filing of such account, vouchers, evidence, and statement, the judge of probate must appoint a day for such settlement, and must give notice of the same, by publication in some newspaper published in the county, for three successive weeks; or, if none is published in the county, by posting such notice at the courthouse and three other public places in such county, for the same length of time; but if the settlement be only an annual one, publication shall only be given by posting up notices as above provided. If the settlement is a final one, the probate judge must also give 10 days’ notice of the day set for making the settlement to every adult distributee resident in the state whose place of residence is known or can be ascertained with reasonable diligence, and to all sureties on the bond of the administrator or executor.
(b) Such notice must state the name of the executor or administrator, the name of the deceased, the day appointed for settlement and the nature of the settlement, whether annual or final.
(c) If the heirs or legatees are of age and waive publication in a newspaper, notice must, in such case, be given by posting the same at the courthouse door.
(Code 1852, §§1805-1807; Code 1867, §§2140-2142; Code 1876, §§2512-2514; Code 1886, §§2138-2140; Code 1896, §§206-208; Code 1907, §§2671-2673; Code 1923, §§5904-5906; Acts 1931, No. 705, p. 829; Code 1940, T. 61, §§298-300; Acts 1953, No. 757, p. 1020.)
In any case in which an administration is conducted pursuant to letters testamentary or letters of administration with the will annexed granted in this state and all legatees and distributees named in the will are of age and proof is made that all legal charges against the estate have been paid in full, the probate court, upon verified petition of the personal representative consented to by written instrument properly executed and acknowledged by all legatees and distributees, may approve a consent settlement without notice or publication or posting. In any case in which an administration is conducted pursuant to letters testamentary or letters of administration granted in this state and such administration in this state is ancillary to a primary administration in another state, and proof is made that all legal charges against the estate in this state have been paid in full and the balance of the assets of the estate in this state have been delivered to the executor or personal representative in the state of primary administration, the probate court, upon verified petition of the executor or personal representative appointed in this state consented to by the executor or personal representative in the state of primary administration, may approve a consent settlement without notice or publication or posting. In all other cases, when all heirs and next of kin are of age and proof is made that all legal charges against the estate have been paid in full, the probate court, upon verified petition of the personal representative consented to by written instrument properly executed and acknowledged by all heirs and next of kin, may approve a consent settlement without notice or publication or posting. In any of the above enumerated cases in which a minor or person of unsound mind may be a distributee or legatee and such minor or person of unsound mind has a guardian, duly appointed by any court of this state, and such guardian is not adversely interested to his or her ward in said settlement, such guardian may approve a consent settlement as evidenced by his or her consent in writing, if properly executed and acknowledged.
(Acts 1943, No. 414, p. 380; Acts 1951, No. 808, p. 1410; Acts 1965, 2nd Ex. Sess., No. 136, p. 188.)
On the day appointed or any other day to which the settlement is continued, the court must proceed to examine and audit the account; and, on such auditing, the executor or administrator must produce satisfactory proof of the correctness of each item on the credit side of the account which may be made by the affidavit or oral examination of witnesses or by any other legal evidence.
(Code 1852, §§1808-1810; Code 1867, §§2143-2145; Code 1876, §§2515-2517; Code 1886, §2141; Code 1896, §209; Code 1907, §2674; Code 1923, §5907; Code 1940, T. 61, §302.)
Any judge of probate, clerk or register of any circuit court or officer of any other court in Alabama having jurisdiction of partial or final settlement of estates of deceased persons shall be authorized to satisfy any claim legally filed against such estates and recorded in the solvent docket book in the office of the probate court, when satisfied from the evidence presented on a partial or final settlement that such claims have been paid.
Such satisfaction shall have the effect of notifying all interested parties that evidence of payment of such debt has been filed in the court.
For each such satisfaction, the officer shall be paid a fee of $.25.
A cancelled check for the amount claimed, properly endorsed by the claimant, may be considered as proof of the payment of such claim, and further proof of payment shall not be required.
(Acts 1939, No. 68, p. 109; Code 1940, T. 61, §303; Acts 1975, No. 1222, §1.)
If any executor or administrator uses any of the funds of the estate for his or her own benefit, he or she is accountable for any profit made thereon or legal interest.
(Code 1852, §1813; Code 1867, §2148; Code 1876, §2520; Code 1886, §2142; Code 1896, §210; Code 1907, §2675; Code 1923, §5908; Code 1940, T. 61, §304.)
(a) When the estate of a decedent is solvent, the executor or administrator, out of the assets in his or her hands, may defray the necessary and reasonable expenses of maintaining and educating minors who are entitled to distribution therein, and who have no legal guardian; and, upon any partial or final settlement by him or her, the probate court must allow him or her credit for such expenses. To the extent the expenses are not within the family allowance, the expenses shall be charged against the shares of such minors and deducted therefrom on any distribution of the estate.
(b) An executor or administrator defraying such expenses must file with his or her account for a settlement a separate account of the amounts paid therefor on account of each of such minors accompanied by proper vouchers, showing the amounts and for what expended.
(Code 1876, §§2644, 2645; Code 1886, §§2159, 2160; Code 1896, §§227, 288; Code 1907, §§2676, 2677; Code 1923, §§5909, 5910; Code 1940, T. 61, §§305, 306; Acts 1984, No. 84-258, p. 426, §1.)
Any person interested may appear and contest any item of the account and may examine the executor or administrator or any other witness and may introduce any legal evidence in support of his or her contest.
(Code 1852, §1812; Code 1867, §2147; Code 1876, §2519; Code 1886, §2143; Code 1896, §211; Code 1907, §2678; Code 1923, §5911; Code 1940, T. 61, §307.)
Upon final settlement, any person contesting may also show that the executor or administrator has failed to charge himself or herself with or to account for all the assets of the decedent received by him or her, or that he or she has failed to collect the same, or any portion thereof, or that by any abuse of, or failure to discharge his or her trust, such assets or any portion thereof have been depreciated, injured or destroyed.
(Code 1852, §1824; Code 1867, §2160; Code 1876, §2532; Code 1886, §2150; Code 1896, §218; Code 1907, §2679; Code 1923, §5912; Code 1940, T. 61, §308.)
The depositions of witnesses may be taken on interrogatories and read in evidence, or witnesses examined orally, by any party to the settlement, in the same cases, for the same causes and under the same rules as depositions are taken and read, or as witnesses are examined in civil actions.
(Code 1852, §1812; Code 1867, §2147; Code 1876, §2519; Code 1886, §2144; Code 1896, §212; Code 1907, §2680; Code 1923, §5913; Code 1940, T. 61, §309.)
If any item as charged by the executor or administrator is reduced or not allowed, the costs of the contest in relation to such item must be paid by the executor or administrator, otherwise, by the party contesting.
(Code 1852, §1814; Code 1867, §2149; Code 1876, §2521; Code 1886, §2145; Code 1896, §213; Code 1907, §2681; Code 1923, §5914; Code 1940, T. 61, §310.)
The executor or administrator may, before the decision of the court on any item, withdraw the same; but in such case he or she must pay the costs of the contest as to such item.
(Code 1852, §1815; Code 1867, §2150; Code 1876, §2522; Code 1886, §2146; Code 1896, §214; Code 1907, §2682; Code 1923, §5915; Code 1940, T. 61, §311.)
On auditing the account, the court must state the same and render a decree passing it as stated; and the same must be recorded.
(Code 1852, §1816; Code 1867, §2152; Code 1876, §2523; Code 1886, §2147; Code 1896, §215; Code 1907, §2683; Code 1923, §5916; Code 1940, T. 61, §312.)
The jurisdiction of the probate court to make partial or final settlements or distributions of the estates of decedents is not affected by the fact that the executor or administrator making the settlement is also guardian of any heir or distributee, devisee, or legatee of the decedent; but in such case the court must appoint a special guardian, without bond, to represent such heir or distributee, devisee, or legatee on the settlement and distribution; and, upon final settlement, any decree to which such ward may be entitled must be rendered against the executor or administrator in the name of the special guardian for the use of the ward; and thereafter the executor or administrator, in the capacity of guardian, shall be accountable for such decree. The special guardian shall be entitled to reasonable compensation for his or her services and for the services of counsel properly employed to be allowed by the court and to be paid by such general guardian out of the estate of the ward.
(Code 1876, §2529; Code 1886, §2148; Code 1896, §216; Code 1907, §2684; Code 1923, §5917; Code 1940, T. 61, §313.)
Upon the final settlement, any item of account included in any previous settlement may be reexamined; but its allowance in the previous settlement is presumptive evidence of its correctness.
(Code 1852, §1823; Code 1867, §2159; Code 1876, §2531; Code 1886, §2149; Code 1896, §217; Code 1907, §2685; Code 1923, §5918; Code 1940, T. 61, §314.)
Whenever any administrator or executor shall file any annual, partial or final settlement in any court having jurisdiction thereof, the court shall, at the request of such administrator or executor, require that notice thereof be given in the same manner as required by law in cases of final settlements, and any order or decree of the court on such settlement after such notice shall be final and conclusive as to all items of receipts and disbursements and other transactions and matters shown therein, and as to all fees and compensation fixed or allowed to any such administrator, executor, or attorney, and appeals therefrom shall and must be taken in the manner provided for from any other final decrees of such court. Thereafter, at any time prior to final settlement, the account may be reopened by the court on motion or petition of the administrator, executor, beneficiary, or other party having an interest in the estate for amendment or revision, if it later appears that the account is incorrect, either because of fraud or mistake.
(Acts 1936, Ex. Sess., No. 128, p. 90; Code 1940, T. 61, §315.)
Any executor or administrator may be required by citation to file his or her accounts and vouchers and to make a settlement, notwithstanding any provision in any will or other instrument to the contrary; and, if after service of the citation, he or she fails to file his or her accounts and vouchers for a settlement on the day named in the citation, the probate court or other court having jurisdiction of the said estate may compel him or her to do so by attachment or may proceed to state the account against him or her from the materials on file or such other information as may be accessible, charging him or her with such assets as may have come to his or her hands.
(Code 1852, §1817; Code 1867, §2153; Code 1876, §2524; Code 1886, §2155; Code 1896, §223; Code 1907, §2686; Acts 1919, No. 440, p. 566; Code 1923, §5919; Code 1940, T. 61, §316.)
After stating such account, the court must issue a citation to such executor or administrator to appear on a day therein named and file his or her accounts and vouchers for settlement or that the account so stated will be passed, which must be served on him or her at least 10 days before the day named therein; and must also give notice of such settlement by publication, as in case of settlements voluntarily made by executors and administrators; and, if on the day named such executor or administrator fails to appear and file his or her accounts and vouchers for settlement, as required by law, the court must proceed to examine the account so stated and audit and, if necessary, restate the same.
(Code 1852, §§1818, 1819; Code 1867, §§2154, 2155; Code 1876, §§2525, 2526; Code 1886, §2156; Code 1896, §224; Code 1907, §2687; Code 1923, §5920; Code 1940, T. 61, §317.)
On the day appointed for auditing such account, any person may attend on the part of such executor or administrator and show that he or she is entitled to additional credits; and any person interested may attend and contest any item of such account or in any previous account, or may show assets not accounted for, or that such executor or administrator has failed to collect any assets from want of due diligence, or that, by any abuse of, or failure to discharge his or her trust, such assets or any portion thereof have been injured, destroyed, or depreciated; and, in case of such proof, the executor or administrator must be charged therewith; and, upon such settlements, decrees must be rendered as upon settlements voluntarily made.
(Code 1886, §2157; Code 1896, §225; Code 1907, §2688; Code 1923, §5921; Code 1940, T. 61, §318.)
If, however, such executor or administrator appears and files his or her accounts and vouchers for settlement and pays such costs as have accrued upon the proceedings had under Sections 43-2-530 through 43-2-532, the court may set aside such decree and proceed as if none had been rendered.
(Code 1852, §1820; Code 1867, §2156; Code 1876, §2527; Code 1886, §2158; Code 1896, §226; Code 1907, §2689; Code 1923, §5922; Code 1940, T. 61, §319.)
When an executor or administrator dies, resigns, or is removed, or his or her letters are revoked, or his or her authority ceases from any cause, he or she must within one month after his or her authority ceases or, in case of his or her death, his or her personal representative must or, in case of his or her removal from the state, his or her sureties must, within six months after the grant of letters, file his or her accounts, vouchers and statement of heirs and legatees for and must make final settlement of the administration of, such executor or administrator, of which settlement notice must be given in the same manner; and such settlement must be conducted and governed, except as otherwise provided in this article, by the same rules and provisions of law as other final settlements by executors or administrators.
(Code 1852, §1876; Code 1867, §§2165, 2232; Code 1876, §§2537, 2590; Code 1886, §2173; Code 1896, §241; Code 1907, §2692; Acts 1923, No. 492, p. 655; Code 1923, §5925; Code 1940, T. 61, §320.)
The remaining or succeeding executor or administrator of the estate of the decedent, if there be one, must be made a party to such settlement and, if a resident of this state, must have personal notice of the time of making the same served on him at least 10 days before the day appointed therefor.
(Code 1867, §2166; Code 1876, §2538; Code 1886, §2174; Code 1896, §242; Code 1907, §2693; Code 1923, §5926; Code 1940, T. 61, §321.)
If there remains any act of administration to be done, other than making settlement and distribution or payment of legacies, and there is a remaining or succeeding executor or administrator, a decree must be rendered in his or her favor for the amount found due on such settlement, and for the delivery of any personal property in the hands of the executor or administrator whose authority has ceased or, if dead, of his or her personal representative; but if more than six months have elapsed from the original grant of letters and there remains no other act of administration to be done than making distribution or payment of legacies, and the estate is solvent, the court must at once proceed to decree distribution or payment of legacies directly to those entitled; or, if in the case last mentioned, there are money assets in the hands of the outgoing executor or administrator, or, if dead, of his or her personal representative, in excess of a sum sufficient for the payment of debts and expenses of further administration, such excess must be distributed, or legacies paid therefrom, directly to those entitled, without passing through the hands of the remaining or succeeding administrator.
(Code 1852, §1877; Code 1867, §2233; Code 1876, §2591; Code 1886, §2175; Code 1896, §243; Code 1907, §2694; Code 1923, §5927; Code 1940, T. 61, §322.)
If, on such settlement, a balance is ascertained to be due from the estate of such decedent to the deceased or outgoing executor or administrator, the probate court may, if six months have elapsed from the grant of original letters, render a decree in favor of the outgoing executor or administrator or, if dead, of his or her personal representative, against the remaining or succeeding executor or administrator for such balance; and if the estate is solvent, payment thereof may be enforced by execution against him or her, to be levied on any effects of such estate in his or her hands unadministered; but if the estate is insolvent, such decree is to be paid as other claims against insolvent estates; and if such balance or any part thereof is for expenses of administration necessarily incurred, such balance, or such part thereof as may be for such expenses, shall be a preferred claim against such estate and shall be paid as other preferred claims are paid.
(Code 1867, §2167; Code 1876, §2539; Code 1886, §2176; Code 1896, §244; Code 1907, §2695; Code 1923, §5928; Code 1940, T. 61, §323.)
The probate court may stay execution on any decree rendered under the provisions of Section 43-2-553, for any time not exceeding six months, if, in the judgment of the court, the interest of the estate requires extension.
(Code 1867, §2168; Code 1876, §2540; Code 1886, §2177; Code 1896, §245; Code 1907, §2696; Code 1923, §5929; Code 1940, T. 61, §324.)
If such outgoing executor or administrator or, if dead, his or her personal representative or, in case of his or her removal from the state, his or her sureties fail to make settlement within the time required by this division, the court may, of its own motion or on the application of any party in interest, compel him or her or his or her sureties to do so by attachment, or may state the account against him or her or his or her sureties from the materials on file or such other information as may be accessible to the court, charging him or her or his or her personal representative or his or her sureties with such assets as may have come into the hands of such executor or administrator.
(Code 1852, §1881; Code 1867, §2234; Code 1876, §2592; Code 1886, §2178; Code 1896, §246; Code 1907, §2697; Acts 1923, No. 492, p. 655; Code 1923, §5930; Code 1940, T. 61, §325.)
After stating such account, the court must issue citation to such executor or administrator or, if dead, to his or her personal representative or, in case of his or her removal from the state, to his or her sureties to appear on a day therein named and to file his or her account and vouchers for settlement, or that the account so stated will be passed, which must be served on him or her, or, if dead, on his or her personal representative or, in case of his or her removal from the state, his or her sureties at least 10 days before the day named therein; and must also give notice of such settlement by publication, as in case of final settlements voluntarily made by executors or administrators; and if, on the day named, such executor or administrator or, if dead, his or her personal representative or, in case of his or her removal from the state, his or her sureties fail to appear and file his or her accounts and vouchers for settlement, as required by law, the court must proceed to examine the account, audit and, if necessary, restate the same.
(Code 1852, §1879; Code 1867, §2235; Code 1876, §2593; Code 1886, §2179; Code 1896, §247; Code 1907, §2698; Acts 1923, No. 492, p. 655; Code 1923, §5931; Code 1940, T. 61, §326.)
On the day appointed for auditing such account, any person may attend on the part of such executor or administrator or, if dead, of his or her personal representative or, in case of his or her removal from the state, his or her sureties and show that he or she is entitled to additional credits; and any person interested may attend and contest any item of such account or in any previous account, or may show assets not accounted for, or that such executor or administrator has failed to collect any assets from want of due diligence, or that, by any abuse of or failure to discharge his or her trust, such assets, or any portion thereof, have been injured, destroyed, or depreciated; and, in case of such proof, the executor or administrator or, if dead, his or her personal representative or, in case of his or her removal from the state, his or her sureties must be charged therewith. On such settlements, decrees must be rendered as upon like settlements voluntarily made.
(Code 1852, §1880; Code 1867, §2236; Code 1876, §2594; Code 1886, §2180; Code 1896, §248; Code 1907, §2699; Acts 1923, No. 492, p. 655; Code 1923, §5932; Code 1940, T. 61, §327.)
If, however, such executor or administrator or, if dead, his or her personal representative or, in event of his or her removal from the state, his or her sureties appear and file his or her accounts and vouchers for settlement and pay such costs as have accrued upon the proceedings had under Sections 43-2-555 through 43-2-557, the court may set aside such decree and proceed as if none had been rendered.
(Code 1886, §2181; Code 1896, §249; Code 1907, §2700; Acts 1923, No. 492, p. 655; Code 1923, §5933; Code 1940, T. 61, §328.)
The proceedings for the settlement of the accounts of deceased or outgoing executors or administrators provided for in this division do not prevent any action by the remaining or succeeding executor or administrator, or by any other person entitled thereto, against such executor or administrator or his or her personal representative for any property remaining in his or her hands or for any other cause of action.
(Code 1852, §1882; Code 1867, §2238; Code 1876, §2596; Code 1886, §2182; Code 1896, §250; Code 1907, §2701; Code 1923, §5934; Code 1940, T. 61, §329.)
In case of the death of an executor or administrator who had not made a final settlement of his or her executorship or administration, and where letters of administration or testamentary have not been granted on his or her estate, the sureties on his or her official bond may proceed to make settlement of his administration of said estate as executor or administrator in the probate court having jurisdiction thereof by filing an account and vouchers for final settlement with the heirs and distributees, or with the administrator de bonis non, or cestui que trust, or minors and guardian ad litem, where minors are interested.
(Acts 1915, No. 98, p. 138; Code 1923, §5935; Code 1940, T. 61, §330.)
Should an administrator or executor of such deceased executor or administrator be appointed at any time before final decree, any party to the proceeding may, on motion, have such executor or administrator of such deceased executor or administrator made a party to such settlement on 10 days’ notice.
(Acts 1915, No. 98, p. 138; Code 1923, §5936; Code 1940, T. 61, §331.)
In any case where an executor or administrator shall die without having made a final settlement of his or her administration and a successor is appointed, such succeeding executor or administrator or the heirs and distributees, legatees, or cestui que trust may, by petition to the court in which such estate is pending, have an order requiring the sureties on such bond to make settlement of such estate in said court after 10 days’ notice of the day fixed by the court or judge thereof.
(Acts 1915, No. 98, p. 138; Code 1923, §5937; Code 1940, T. 61, §332.)
In all such cases provided for in Section 43-2-562, the settlement therein provided for shall be final and conclusive against such sureties save the right of review by appeal or otherwise as now provided by law.
(Acts 1915, No. 98, p. 138; Code 1923, §5938; Code 1940, T. 61, §333.)
Execution and all other final process may issue against the said sureties on said bond to enforce said judgments.
(Acts 1915, No. 98, p. 138; Code 1923, §5939; Code 1940, T. 61, §334.)
After the expiration of six months from the grant of letters testamentary, or of administration, with the will annexed, if there are more than sufficient assets in the hands of such executor or administrator to pay the debts of the deceased, any legatee may apply to the probate court of the county in which letters were granted to compel the payment of his legacy; and a widow who has dissented from her husband’s will or her personal representative, if she is dead, shall have like remedy to compel the payment of the distributive share to which she may be entitled.
(Code 1852, §1772; Code 1867, §2098; Code 1876, §2475; Code 1886, §2192; Code 1896, §260; Code 1907, §2736; Code 1923, §5975; Acts 1931, No. 726, p. 841; Code 1940, T. 61, §335.)
The application for such purpose must be in writing, verified by affidavit; must set forth the applicant’s claim and must allege a sufficiency of assets in the hands of such executor or administrator to pay the same after discharging the debts of the testator, charges on his or her estate and other legacies entitled to priority of payment.
(Code 1852, §1773; Code 1867, §2099; Code 1876, §2476; Code 1886, §2193; Code 1896, §261; Code 1907, §2737; Code 1923, §5976; Code 1940, T. 61, §336.)
The court must appoint a day for hearing such application, and a citation must be issued and served on the executor or administrator notifying him or her of the grounds of such application and of the day appointed for hearing the same, 10 days before such day.
(Code 1852, §1774; Code 1867, §2100; Code 1876, §2477; Code 1886, §2194; Code 1896, §262; Code 1907, §2738; Code 1923, §5977; Code 1940, T. 61, §337.)
On the day appointed or on any other day to which the hearing of the application may be continued, the court must hear the same; and, if it appears that the applicant is a legatee and that after the payment of his or her legacy there will be a sufficiency of assets to pay all the debts which have been presented, charges and other legacies which are entitled to priority, the court may direct the payment or delivery of such legacy, or any part thereof, according to the proof of assets and of the other legacies in the same degree with that of the applicant, on the legatee’s executing a refunding bond according to the provisions of Section 43-2-584.
(Code 1852, §1775; Code 1867, §2101; Code 1876, §2478; Code 1886, §2195; Code 1896, §263; Code 1907, §2739; Code 1923, §5978; Code 1940, T. 61, §338.)
Such refunding bond must be payable to the executor or administrator with the will annexed and must be in double the amount directed to be paid or in double the value of the property to be delivered, to be ascertained by the appraisement or other evidence satisfactory to the court, with at least two sufficient sureties, conditioned to refund the amount paid or to return the property or pay the value thereof, with interest on such amount or value from the time the same was received, should the assets prove insufficient to discharge the other debts presented and charges and other legacies entitled to priority of payment.
(Code 1852, §1776; Code 1867, §2102; Code 1876, §2479; Code 1886, §2196; Code 1896, §264; Code 1907, §2740; Code 1923, §5979; Code 1940, T. 61, §339.)
If the legacy is not payable in money, the value thereof as ascertained under Section 43-2-584 must be entered of record; and, if the amount directed to be paid or the property directed to be delivered is not paid or delivered within 60 days after such order, an execution may issue for such amount or the value of such property against such executor or administrator and his or her sureties.
(Code 1852, §1777; Code 1867, §2104; Code 1876, §2481; Code 1886, §2197; Code 1896, §265; Code 1907, §2741; Code 1923, §5980; Code 1940, T. 61, §340.)
Sections 43-2-581 through 43-2-585 apply to the widow who has dissented from her husband’s will and seeks to compel the payment of her distributive share or, if she is dead, to her administrator or executor.
(Code 1867, §2103; Code 1876, §2480; Code 1886, §2198; Code 1896, §266; Code 1907, §2742; Code 1923, §5981; Code 1940, T. 61, §341.)
On the settlement of the estate of a decedent, when such estate is free from debt, the probate court in which such settlement may be pending has authority to refer all matters of controversy arising in such settlement to arbitration, if, in the opinion of the court, the interests of the parties can be best subserved thereby and the parties, or their attorneys, consent thereto.
(Code 1867, §2169; Code 1876, §2541; Code 1886, §2183; Code 1896, §251; Code 1907, §2702; Code 1923, §5940; Code 1940, T. 61, §342.)
If any person interested in such estate is an infant or of unsound mind, his or her guardian shall have authority to consent to the reference to arbitration, which consent must be in writing, and, when so given, shall be binding on such person as fully and effectually as if he or she were of full age or of sound mind.
(Code 1867, §2170; Code 1876, §2542; Code 1886, §2184; Code 1896, §252; Code 1907, §2703; Code 1923, §5941; Code 1940, T. 61, §343.)
The arbitrators must not exceed three in number and must be entirely disinterested and must be appointed by order of the probate court.
(Code 1867, §2171; Code 1876, §2543; Code 1886, §2185; Code 1896, §253; Code 1907, §2704; Code 1923, §5942; Code 1940, T. 61, §344.)
The arbitrators must make their award in writing, and, within 10 days after making the same, they must return it to such court; and, if approved by the court, it must be entered of record and shall be final and conclusive upon all the parties. But such award must not be approved until after the expiration of 10 days from the time it is returned to the court.
(Code 1867, §2172; Code 1876, §2544; Code 1886, §2186; Code 1896, §254; Code 1907, §2705; Code 1923, §5943; Code 1940, T. 61, §345.)
If such award, or any part thereof, is for the payment of money, it shall, when approved and entered of record, have the force and effect of a judgment at law in favor of the person to whom the money may be awarded; and execution may issue thereon as in other cases.
(Code 1867, §2173; Code 1876, §2545; Code 1886, §2187; Code 1896, §255; Code 1907, §2706; Code 1923, §5944; Code 1940, T. 61, §346.)
If such award is not approved by the court, it must be set aside; and the court may refer the matters again to the same or other arbitrators.
(Code 1867, §2174; Code 1876, §2546; Code 1886, §2188; Code 1896, §256; Code 1907, §2707; Code 1923, §5945; Code 1940, T. 61, §347.)
Any of the parties may, within 10 days after such award has been returned to the court, file objections to the same; and, if objections are filed, the court must appoint a day, not less than 30 days from the filing of such objections, to hear and determine the same, notice of which must be given as now required by law in cases of applications for final settlements of the estates of decedents by executors or administrators.
(Code 1867, §2175; Code 1876, §2547; Code 1886, §2189; Code 1896, §257; Code 1907, §2708; Code 1923, §5946; Code 1940, T. 61, §348.)
Sections 6-6-4 through 6-6-10 and 6-6-13 are made applicable to the settlement of estates by arbitration.
(Code 1867, §2176; Code 1876, §2548; Code 1886, §2190; Code 1896, §258; Code 1907, §2709; Code 1923, §5947; Code 1940, T. 61, §349.)
On the final settlement of an estate, the court may make such orders of distribution as may be necessary, and, on the confirmation of the same, may render a decree thereon, and the property must be delivered according to such decree; or, if there is money only to be divided, it may render a decree in favor of each distributee entitled to the same, for his or her distributive share, against the executor or administrator.
(Code 1852, §1822; Code 1867, §2158; Code 1876, §2530; Code 1886, §2161; Code 1896, §229; Code 1907, §2710; Code 1923, §5948; Code 1940, T. 61, §350.)
All orders of distribution must be directed to three disinterested persons appointed by the court, must specify the property to be divided, the persons and their respective shares and must require them to return their proceedings on a day specified in such order.
(Code 1852, §1792; Code 1867, §2119; Code 1876, §2496; Code 1886, §2162; Code 1896, §230; Code 1907, §2713; Code 1923, §5951; Code 1940, T. 61, §351.)
(a) The persons therein named, or a majority of them, must proceed to make distribution according to such order, having first taken an oath to make such distribution fairly and impartially, if the same can be made, which oath may be administered by the executor or administrator, and must return their proceedings in writing, signed by them, to the court by the day specified in such order.
(b) If the property cannot be divided equitably without a sale of all or some portion thereof, the commissioners must so report.
(c) Any person may file exceptions to the report of the commissioners within 30 days after the day appointed for the return or, if returned at any time thereafter, within 30 days after the return.
(Code 1852, §§1793-1795; Code 1867, §§2120-2122; Code 1876, §§2497-2499; Code 1886, §§2163-2165; Code 1896, §§231-233; Code 1907, §§2714-2716; Code 1923, §§5952-5954; Code 1940, T. 61, §§352-354.)
The court, for causes shown on such exceptions, or otherwise, may set aside such distribution and direct another distribution or, if the same is just, may confirm it; or, if it appears from such report that the property cannot be equitably divided without a sale of all or some portion thereof, it may direct a sale of all or any portion of the personal property.
(Code 1852, §1796; Code 1867, §2123; Code 1876, §2500; Code 1886, §2166; Code 1896, §234; Code 1907, §2717; Code 1923, §5955; Code 1940, T. 61, §355.)
Such a sale must be advertised and made as sales of personal property under the order of the court for the payment of debts.
(Code 1852, §1797; Code 1867, §2124; Code 1876, §2501; Code 1886, §2167; Code 1896, §235; Code 1907, §2718; Code 1923, §5956; Code 1940, T. 61, §356.)
Upon the confirmation of any order of distribution, the executor or administrator must deliver the property to the persons entitled thereto.
(Code 1852, §1798; Code 1867, §2125; Code 1876, §2502; Code 1886, §2168; Code 1896, §236; Code 1907, §2719; Code 1923, §5957; Code 1940, T. 61, §357.)
(a) Any judgments or claims in favor of the estate, which are not collected at the time of final distribution, may be divided among the persons entitled, on final distribution; or, if such division cannot be equitably made, may be sold as other personal property.
(b) The executor or administrator must assign any such judgment or claim to the distributee, legatee or purchaser, as the case may be; and such person is entitled to collect the same by civil action or otherwise.
(Code 1852, §§1799, 1800; Code 1867, §§2126, 2127; Code 1876, §§2503, 2504; Code 1886, §§2169, 2170; Code 1896, §§237, 238; Code 1907, §§2720, 2721; Code 1923, §§5958, 5959; Code 1940, T. 61, §§358, 359.)
(a) If, on final settlement, any distributee or legatee owes the estate any debt, contracted with the decedent in his or her lifetime or with the executor or administrator in his or her representative capacity, the court shall allow the same in favor of the executor or administrator, as a setoff against the distributive share of such distributee or legatee and shall decree satisfaction of his or her distributive share to the extent of such debt or demand; but the distributee or legatee may make any defense to the setoff that would be available to him or her in a direct proceeding for the recovery of the debt.
(b) In no case shall a decree be rendered in favor of the executor or administrator against such distributee or legatee for the excess, when the debt is greater in amount than the distributive share; nor shall the executor or administrator be prevented from prosecuting a civil action in the proper court for any excess that may be due him or her from such distributee or legatee.
(Code 1886, §§2171, 2172; Code 1896, §§239, 240; Code 1907, §§2722, 2723; Code 1923, §§5960, 5961; Code 1940, T. 61, §§360, 361.)
When the estate has been fully administered and it is shown by the executor or administrator, by the production of satisfactory vouchers, that he or she has paid all sums of money due from him or her and delivered up, under the order of the court, all the property of the estate to the parties entitled and performed all the acts lawfully required of him or her, the court must make a judgment or decree discharging him or her from all liability as such executor or administrator.
(Code 1923, §5962; Code 1940, T. 61, §362.)
(a) When administration is taken out in this state on the estate of any person who, at the time of his or her death, was an inhabitant of any other state or country, his or her personal estate, after the payment of debts and charges on his or her estate, must be disposed of according to his or her last will, if probated in this state and, if no such will is probated in this state, according to the law of the state or country of which he or she was an inhabitant.
(b) Upon the settlement of such estate and after the payment of all debts for which the same is liable in this state, the residue of the personal estate may be distributed and disposed of according to the provisions of subsection (a); or it may be transmitted or paid over to the executor or administrator of the state or country where the deceased had his or her domicile.
(Code 1852, §§1826, 1827; Code 1867, §§2163, 2164; Code 1876, §§2535, 2536; Code 1886, §§2153, 2154; Code 1896, §§221, 222; Code 1907, §§2711, 2712; Code 1923, §§5949, 5950; Code 1940, T. 61, §§363, 364.)
When the executor or administrator is satisfied that the estate is solvent, he or she may, after six months from the date of the grant of letters testamentary or of administration, make distribution of the whole or any part of the property without obtaining an order of court, or he or she may so report it and obtain an order of distribution as to the whole, or any part of the property; but, in such case, if the distribution or the order is made before a final settlement of such estate, neither the distribution, the order, nor the proceedings thereon are a defense in any action brought against such executor or administrator as such.
(Code 1852, §1771; Code 1867, §2097; Code 1876, §2474; Code 1886, §2191; Code 1896, §259; Code 1907, §2724; Code 1923, §5963; Code 1940, T. 61, §365; Acts 1949, No. 614, p. 945.)
(a) The court may also, in case of intestacy, make an order of distribution out of the assets of the decedent, on the application of any person entitled to distribution, after six months from the grant of letters.
(b) The order of the court, made after six months from the grant of letters on the application of any legatee or person entitled to distribution, is a protection to the executor or administrator, to the extent of the amount or value of the legacy or share ordered to be paid or distributed.
(Code 1852, §§1778, 1789; Code 1867, §§2105, 2116; Code 1876, §§2482, 2493; Code 1886, §§2199, 2209; Code 1896, §§267, 277; Code 1907, §§2725, 2735; Code 1923, §§5964, 5974; Acts 1931, No. 727, p. 841; Code 1940, T. 61, §§366, 376.)
Such application must be in writing, verified by affidavit, must specify the share to which the applicant is entitled and must allege that the assets of the decedent are more than sufficient to pay the debts of the decedent and the charges on his or her estate.
(Code 1852, §1779; Code 1867, §2106; Code 1876, §2483; Code 1886, §2200; Code 1896, §268; Code 1907, §2726; Code 1923, §5965; Code 1940, T. 61, §367.)
A day must be appointed for the hearing of such application, and a citation must be issued and served on the administrator 10 days before the day appointed, notifying him or her of the grounds of the application and the day of hearing the same.
(Code 1852, §1780; Code 1867, §2107; Code 1876, §2484; Code 1886, §2201; Code 1896, §269; Code 1907, §2727; Code 1923, §5966; Code 1940, T. 61, §368.)
On the day appointed, or on any other day to which the application may be continued, if the court is satisfied from the evidence that the assets are more than sufficient to pay the debts and charges, it may make an order of distribution for such portion of the distributive share of the applicant as may be authorized by the evidence; but, in making such order, the court must not exceed the share to which the applicant would be entitled on a final settlement and distribution.
(Code 1852, §§1781, 1782; Code 1867, §§2108, 2109; Code 1876, §§2485, 2486; Code 1886, §2202; Code 1896, §270; Code 1907, §2728; Code 1923, §5967; Code 1940, T. 61, §369.)
Such order must not in any case be made, unless the applicant gives a refunding bond, with two sufficient sureties, to be approved by the judge of probate, payable to the administrator, in double the amount distributed to the applicant or in double the value of his or her share of the property directed to be distributed, to be ascertained by the appraisement or other evidence and entered of record, and conditioned to refund the amount directed to be paid, or to return the property received on such distribution, or to pay the value thereof and interest on such amount or value from the time the same was received, if the assets are insufficient to discharge the debts and charges against the estate.
(Code 1852, §1782; Code 1867, §2109; Code 1876, §2486; Code 1886, §2203; Code 1896, §271; Code 1907, §2729; Code 1923, §5968; Code 1940, T. 61, §370.)
All refunding bonds provided for in this division must be recorded by the judge of probate and then delivered to the executor or administrator; and a transcript of any such bond as recorded, duly certified, is evidence to the same extent as the original would have been if produced.
(Code 1852, §1784; Code 1867, §2111; Code 1876, §2488; Code 1886, §2205; Code 1896, §273; Code 1907, §2731; Code 1923, §5970; Code 1940, T. 61, §372.)
(a) Such refunding bond stands as security for the executor or administrator, should the assets in his or her hands, after any payment of money or delivery of property under the order of the court, prove insufficient to pay the debts, claims, and charges against the estate, and the executor or administrator pays the same; and also as security for the creditors of the estate; and any creditor may bring a civil action thereon.
(b) The extent of the recoveries on such bond is the amount or value of the property received by the legatee or distributee and interest on such amount or value from the date of its receipt; and the value of property received may be proved by the entry of record, made according to the provisions of this division or other evidence; and civil actions may be brought on such bond from time to time in the name of any person aggrieved until the whole amount of the liability, as determined by this section, is recovered.
(Code 1852, §§1785-1787; Code 1867, §§2112-2114; Code 1876, §§2489-2491; Code 1886, §§2206, 2207; Code 1896, §§274, 275; Code 1907, §§2732, 2733; Code 1923, §§5971, 5972; Code 1940, T. 61, §§373, 374.)
Any party making a payment on any refunding bond taken under this division, may recover against the parties to any other refunding bond such an amount as shall be in the same proportion to the amount collected from the plaintiff, as the amount of money and value of the property delivered on both bonds bears to the amount of money or property delivered on the bond of the defendant.
(Code 1852, §1788; Code 1867, §2115; Code 1876, §2492; Code 1886, §2208; Code 1896, §276; Code 1907, §2734; Code 1923, §5973; Code 1940, T. 61, §375.)
If any application made under the provisions of this division is determined against the applicant, he or she must pay the costs.
(Code 1852, §1783; Code 1867, §2110; Code 1876, §2487; Code 1886, §2204; Code 1896, §272; Code 1907, §2730; Code 1923, §5969; Code 1940, T. 61, §371.)
When the administration of the estate of a deceased person shall be pending in any court, and the records of such court shall show that letters testamentary or letters of administration on such estate were issued and that 20 years or more have elapsed since six months after such letters were issued, without further action in said cause, or if any further action was taken in said cause, and 20 or more years have elapsed since any such action, and if all bequests and legacies provided for in a will being administered in such cause have been payable or demandable for more than 20 years, and if the executor or administrator in such cause shall not for 20 or more years have made any payment or partial payment or promise of payment of any claim against such estate or of any bequest, devise or distributive share due from such estate, then it shall be conclusively presumed that final settlement of said estate has been made by the executor or administrator thereof and that all debts of said estate, all legacies and bequests due by said estate, and all distributive shares in said estate have been paid to the persons entitled thereto.
(Acts 1953, No. 687, p. 939, §1.)
An executor, administrator or surety on the bond of the executor or administrator of said estate, or the heirs or next of kin of such executor, administrator or surety may file a petition or complaint, verified by affidavits, in the court in which such a cause is pending, alleging the existence of the facts that raise the presumptions stated in Section 43-2-660, and, upon the filing of such petition or complaint and giving security for costs of the proceeding, the court must appoint a day for the hearing of such petition or complaint and must give notice of the same by publication in some newspaper published in the county for three successive weeks or, if none is published in the county, by posting such notice at the courthouse and three other public places in such county for the same length of time; and the court must also give 10 days’ notice to every adult distributee resident in the state and to all sureties on the bond of the administrator or executor in said cause, of the day set for hearing the petition or complaint.
(Acts 1953, No. 687, p. 939, §2.)
Such notice must state the name of the executor or administrator, the name of the deceased and the day appointed for the hearing of the petition or complaint. If all heirs and legatees are of age and waive publication in a newspaper, notice must, in such case be given by posting the same at the courthouse door.
(Acts 1953, No. 687, p. 939, §§3, 4.)
Any person interested may appear and contest any statement in the petition or complaint and may examine the parties or any other witness and may introduce any legal evidence in support of his or her contest.
(Acts 1953, No. 687, p. 939, §5.)
Should the court find the allegations of the petition or complaint to be true, it shall enter an order, decree or judgment in said cause discharging the executor or the administrator and the sureties on their official bonds from all liability growing out of the administration of said estate. Should it find otherwise, the court shall dismiss the petition or complaint.
(Acts 1953, No. 687, p. 939, §6.)
Upon any annual, partial or final settlement made by any administrator or executor, the court having jurisdiction thereof may fix, determine, and allow the fees or other compensation to which any such administrator or executor is entitled from an estate up to the time of such settlement, and may also fix, determine, and allow an attorney’s fee or compensation, to be paid from such estate to attorneys representing such administrator or executor, for services rendered to the time of such settlement.
(Acts 1936, Ex. Sess., No. 128, p. 90; Code 1940, T. 61, §379.)
In the allowance of fees to executors or administrators and their attorneys on final settlement, the court shall take into consideration such fees as may have been allowed and paid to them prior to such final settlement, but such administrators or executors shall be entitled to full credit for any fees allowed and paid on any annual or partial settlement after notice given as provided for in case of final settlements.
(Acts 1936, Ex. Sess., No. 128, p. 90; Code 1940, T. 61, §380.)
This division shall be known as the “Revised Alabama Small Estates Act.”
(Acts 1975, 3rd Ex. Sess., No. 145, §1; Act 2025-431, §1.)
For the purposes of this division, the following words and phrases have the following meanings:
(1) DECEDENT. A deceased individual who is not survived by a minor child who is not the child of the surviving spouse, if any, and whose estate is subject to summary distribution under this division.
(2) ESTATE. All the personal property of a decedent who owns no real property at the time of his or her death for which title does not pass by operation of law.
(3) PERSON. A natural person, corporation, organization, other legal entity, or any trust or trustee.
(4) PERSONAL REPRESENTATIVE. An executor, administrator, administrator with the will annexed, special administrator, and successor personal representative.
(5) SELF-PROVED WILL. A will that is self-proved in accordance with either Section 43-8-132 or 43-8-133.
(6) SMALL ESTATE. An estate having a value that does not exceed the small estate amount.
(7) SMALL ESTATE AMOUNT. The sum as adjusted from time to time based on the Consumer Price Index formula set forth in Section 43-8-116 of the homestead allowance under Section 43-8-110, exempt property under Section 43-8-111, and the family allowance under Sections 43-8-112 and 43-8-113.
(8) SUMMARY DISTRIBUTION. The procedure provided in this division to distribute the small estate of a decedent without the appointment of a personal representative.
(9) SURVIVING SPOUSE. The spouse of the decedent at the time of decedent’s death, provided the spouse is a surviving spouse under Section 43-8-252 and is not an individual claiming to be a spouse under common law, whether or not such common law marriage allegedly occurred before or after January 1, 2017.
(Acts 1975, 3rd Ex. Sess., No. 145, §2; Act 2009-399, p. 724, §1; Act 2025-431, §1.)
(a) During the pendency of a summary disposition, any person entitled to the homestead allowance under Section 43-8-110, exempt property under Section 43-8-111, or the family allowance under Sections 43-8-112 and 43-8-113 may file a verified petition in the office of the judge of probate in which the summary distribution is pending. The petition shall set forth the person’s entitlement to the exemption and allowances. The probate court, upon review and approval of the petition, may enter an order for disbursing the exemption and allowances from the small estate to the person in accordance with Sections 43-8-110, 43-8-111, or 43-8-112 and 43-8-113.
(b) The remainder of the small estate of a decedent domiciled in Alabama at the time of the decedent’s death, following the exemption and allowances disposition made in accordance with subsection (a) that meets all of the conditions of this division, shall be distributed as follows:
(1) To the surviving spouse of the decedent.
(2) If the decedent died with a self-proved will and with no surviving spouse, to those persons entitled to the decedent’s estate under the self-proved will, and to those persons entitled to share in the decedent’s estate under the laws of descent and distribution of this state for the part of the decedent’s estate not effectively disposed of by the decedent’s self-proved will.
(3) If the decedent died without a surviving spouse and without a self-proved will, to those persons entitled to share in the decedent’s estate under the laws of descent and distribution of this state.
(Act 2025-431, §2.)
(a) A person, or a person duly authorized to act for the person, entitled to an interest in a small estate under this division 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. No bond shall be required to be filed with the petition. If the decedent died with a self-proved will, the self-proved will shall be filed with the petition.
(b) The petition for summary distribution shall provide the following information and allege the following conditions:
(1) The decedent died domiciled in this state and was domiciled in the county in which the petition is filed.
(2) The decedent’s estate is a small estate.
(3) A description of the personal property constituting the decedent’s estate and the value.
(4) No petition for the appointment of a personal representative is pending nor has one been granted.
(5) The name, address, age, capacity, and relationship to the decedent of: (i) the petitioner; (ii) each person who would be entitled to an interest in the decedent’s estate under the laws of descent and distribution of this state; and (iii) each person entitled to an interest in the decedent’s estate under any will of the decedent filed with the petition. “Capacity” as used in this subdivision means whether the person is 19 years of age or older and whether the person is of sound mind.
(6) If the decedent was survived by a spouse, that the decedent’s surviving spouse is entitled to the decedent’s estate.
(7) If the decedent died without a surviving spouse and without a self-proved will that does not dispose of all of the small estate, the names of the persons who are entitled to the decedent’s estate under the descent and distribution statutes of this state and their respective shares.
(8) If the decedent died with a will.
(9) If the decedent died with no surviving spouse and with a self-proved will, the names of the persons who are entitled under the self-proved will to a share or interest in the decedent’s estate and their respective shares or interests.
(10) All funeral expenses of the decedent have been paid or arrangements for the payment out of the estate of the decedent of all unpaid funeral expenses have been made by or on behalf of the petitioner.
(11) 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 petitioner.
(c) Upon the filing of a petition for summary distribution under this division, both of the following shall occur:
(1) Notice of the filing of the petition 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, the notice of the filing shall be posted at the county courthouse for one week.
(2) The petitioner shall notify the Alabama Medicaid Agency of the filing of the petition as provided in Section 43-2-697 and shall provide proof of the notice to the probate court.
(d) The probate court shall not enter an order directing summary distribution pursuant to a petition under this division unless:
(1) At least 30 days have elapsed since the notice of the filing of the petition was published as provided in subsection (c);
(2) At least 30 days have elapsed since the Alabama Medicaid Agency received notice of the filing of the petition; and
(3) It appears to the probate court that all of the conditions for summary distribution provided in this subsection have been met and that the petition is due to be granted.
(Acts 1975, 3rd Ex. Sess., No. 145, §3; Act 2009-399, p. 724, §1; Act 2025-431, §1.)
(a) Upon finding that the applicable requirements enumerated in this division have been met, the judge of probate shall enter an order directing summary distribution of the estate delineating the portion of the small estate that each person identified in the order is entitled.
(b) The order issued by the court under subsection (a) shall be final and conclusive as to all items and matters shown, and appeals must be taken in the manner provided for from any other final decree of the court in connection with the administration of the decedents’ estates.
(Acts 1975, 3rd Ex. Sess., No. 145, §4; Act 2009-399, p. 724, §1; Act 2025-431, §1.)
Upon delivering a copy of the judge of probate’s order directing summary distribution, the persons entitled to summary distribution of the decedent’s estate under this division shall be entitled to have the decedent’s property or the evidence of the decedent’s ownership in the property transferred to them 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.
(Acts 1975, 3rd Ex. Sess., No. 145, §5; Act 2025-431, §1.)
The right of a person to summary distribution of a decedent’s estate provided for by this division shall be subject only to any preexisting rights to administer the estate or probate the will, or to the superior rights of any other person to the personal property.
(Acts 1975, 3rd Ex. Sess., No. 145, §6; Act 2025-431, §1.)
The person making payment, delivery, transfer, or issuance of personal property or evidence thereof pursuant to an order for summary distribution issued under this division shall be discharged and released to the same extent as if made to a personal representative of the decedent, and the person shall not be required to see the petition or to inquire into the truth of any statement in the petition if made by any other person. If any person to whom such order is delivered refuses to pay, deliver, transfer, or issue any personal property or evidence thereof, the personal property 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 43-2-691.1, 43-2-692, and 43-2-695 upon proof of the right declared by such sections.
(Acts 1975, 3rd Ex. Sess., No. 145, §7; Act 2025-431, §1.)
Whenever fraud had been perpetrated in connection with any proceeding or in any statement filed under this division or if fraud is used to avoid or circumvent the provisions or purposes of this division, any person injured by these actions may obtain appropriate relief against the perpetrator of the fraud or receive restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within one year after the discovery of the fraud or from the time when the fraud should have been discovered, but no proceeding may be brought against anyone who did not perpetrate the fraud later than five years after the time of the commission of the fraud. This section has no effect on remedies related to fraud perpetrated against a decedent during the decedent’s lifetime which affects the succession of the decedent’s estate.
(Act 2025-431, §2.)
The small estate amount shall at all times be equal to the combined maximum amount of the homestead allowance, exempt property, and family allowance provided under Sections 43-8-110 through 43-8-113, as adjusted pursuant to Section 43-8-116.
(Act 2025-431, §2.)
(a) The personal representative, or person filing to initiate a proceeding in accordance with the Alabama Small Estates Act, Division 10 of this article, shall give notice of his or her appointment, or the filing of a petition in accordance with Section 43-2-692, to the Medicaid Agency. The notice shall include all of the following information:
(1) The full legal name of the deceased.
(2) The date of birth of the deceased.
(3) The date of death of the deceased.
(4) The Social Security number of the deceased.
(5) The marital status of the deceased at the time of death.
(6) The name, address, and phone number of the spouse of the deceased, if applicable.
(7) The court in which a probate estate has been opened.
(8) The probate case number.
(9) The date on which letters testamentary or letters of administration were issued by the probate court.
(10) The name, address, and phone number of the person giving notice.
(11) The type of probate proceeding.
(b) The notice shall be effective, provided the information in subdivisions (1), (2), and (3) of subsection (a) are included.
(c) The notice shall be mailed to the Medicaid Agency, Attn: Estate Notice Office, P.O. Box 5624 Montgomery, AL 36103-5624, or such other address as the commissioner may provide by rule. The notice shall be mailed by United States Postal Service Certified Mail with instructions to forward, return receipt requested, with instructions to the delivering postal employee to show to whom delivered, date of delivery, and address where delivered. The return receipt shall be addressed to the probate court in which the estate was filed and shall identify the case number of the case to which the notice pertains. Upon mailing, the personal representative, or person filing to initiate a proceeding in accordance with the Alabama Small Estates Act, shall immediately file with the probate court an affidavit of certified mailing of notice to the Medicaid Agency, along with a copy of the notice sent. The affidavit shall verify that the notice has been mailed by certified mail in accordance with this division. The probate court shall enter the return receipt into the case record.
(d) The Medicaid Agency shall respond to the notice by sending one of the following documents to be filed in the probate court:
(1) A claim.
(2) A waiver of claim.
(3) A statement that no amount is due.
(e) The Medicaid Agency shall send a response under subsection (d) as soon as practicable, but no later than 30 days after the date of receipt of the notice. The claim is waived if the agency has not delivered its response to the probate court within 30 days of receipt of the notice.
(f) The Medicaid Agency may create an electronic system for persons to provide notice in accordance with this section. If created, the electronic system shall issue a serialized certificate as proof of notice. The personal representative, or person filing to initiate a proceeding in accordance with the Alabama Small Estates Act, shall file the serialized certificate in the probate court if the electronic system is utilized. If the Medicaid Agency provides such a system, then the personal representative, or person filing to initiate a proceeding in accordance with the Alabama Small Estates Act, may choose to either provide notice through the electronic system or in accordance with subsection (c), but shall not be required to do both.
(g) The Medicaid Agency shall not be charged for filing a waiver of claim or statement that no amount is due. The fee for the filing of the agency’s claim shall be considered part of the fees and charges of administration and shall be paid back to the agency without the filing of an additional claim.
(h) The debts of the sixth order of preference, in accordance with Section 43-2-371, shall not be paid, and no distribution shall be made, until proof of notice, as required by this section, has been filed in the probate court and 30 days have passed since the Medicaid Agency received notice.
(i) For the purpose of this section, personal representative shall have the same meaning as provided in Section 43-8-1.
(j) This section shall only apply to cases initiated on or after September 1, 2019.
(k) All notices provided to the Medicaid Agency and all reports, records, databases, or other documents generated by the agency shall be exempt from disclosure pursuant to Section 36-12-40.
(1) Nothing in this section should be construed to modify current probate estate enforcement or grant a new cause of action to the Medicaid Agency.
(Act 2019-489, §1.)
(a) The Medicaid Agency may petition to open the probate estate of a Medicaid recipient by filing a petition to appoint a third party administrator and issue letters of administration, pursuant to the timing limitations of Section 43-2-43.
(b) The petition shall contain all of the following information:
(1) The date the recipient died.
(2) An explanation of why the petition is filed in the proper court in accordance with Section 43-2-40.
(3) A listing of the recipient’s personal and real property of which the Medicaid Agency is aware.
(4) A listing of the recipient’s debts of which the agency is aware.
(5) A listing of the recipient’s possible heirs, including contact information, if known, of which the agency is aware.
(c) If the Medicaid Agency is not aware of information listed in subsection (b), the agency shall describe each piece of information that it lacks.
(d) If the petition contains the information required in subsection (b), or statements in accordance with subsection (c), the court shall appoint a third party administrator in accordance with Section 43-2-42, and require that administrator to procure a bond in accordance with Article 4 of this chapter. Once the court is satisfied that an appropriate bond has been procured, the court shall issue letters of administration to the administrator.
(e) The administrator shall be compensated in accordance with Section 43-2-848.
(f) When appointing an administrator pursuant to this section, the probate court shall not appoint an employee of the Medicaid Agency as an administrator of the estate of a Medicaid recipient.
(g) The filing fee for the filing of the Medicaid Agency’s petition under this section shall be considered part of the fees and charges of administration and shall be paid back to the agency without the filing of an additional claim.
(Act 2019-489, §2.)
(a) The Medicaid Agency may file a claim against the estate of a Medicaid recipient for the amount of any medical assistance payments made on behalf of the recipient, but only as allowed by 42 U.S.C. §1396p, except that the agency shall not file a claim that includes medical assistance payments made at any time for Medicare cost-sharing or for benefits under the Medicare Savings Programs described in 42 U.S.C §1396a(a)(10)(E).
(b) The claim shall be filed pursuant to Article 15 of this chapter, unless otherwise provided by law. The claim shall be filed with an affidavit stating the amount the Medicaid Agency spent and the time period in which the amount was spent. The affidavit shall be completed by the Commissioner of Medicaid or a designee. The affidavit shall be competent evidence of the claim and shall be prima facie genuine and authentic when signed by the commissioner or a designee.
(c) This section shall apply prospectively.
(Act 2019-489, §3.)
The Medicaid Agency conducts a liens program in accordance with 42 U.S.C. §1396p. The liens program is operated within the federal law restrictions. Nothing in this division shall shrink or expand the Medicaid Agency’s federal law authority or grant a new cause of action that is not currently available under state or federal law. The agency shall always remain in compliance with 42 U.S.C. §1396p.
(Act 2019-489, §4.)
When the real and personal property of any decedent is insufficient for the payment of the debts, the proceeds arising from the sale thereof must be distributed as directed by Section 43-2-371 in proportion to the amounts due to each class of creditors, in the order in such section specified.
(Code 1852, §1828; Code 1867, §2177; Code 1876, §2549; Code 1886, §2222; Code 1896, §290; Code 1907, §2755; Code 1923, §5994; Code 1940, T. 61, §381.)
Whenever the executor or administrator of any estate is satisfied that the property of the estate is insufficient to pay its debts, he or she must file with the judge of probate of the court having jurisdiction of the estate a report in writing that such estate is, to the best of his or her knowledge and belief, insolvent.
(Code 1852, §1829; Code 1867, §2178; Code 1876, §2550; Code 1886, §2223; Code 1896, §291; Code 1907, §2756; Code 1923, §5995; Code 1940, T. 61, §382.)
He or she must file with such report:
(1) A statement of all the goods and chattels, evidences of debt, and other personal property, with the estimated value of each, and the amount of money belonging to such estate;
(2) A full statement of the real property of the deceased, or any interest therein, and estimated value thereof;
(3) A full statement of the claims against the estate which have come to his or her knowledge, the character and amount of each claim, and the name and residence of each creditor, if known; and
(4) A full statement of the names and ages of all heirs or distributees and their places of residence.
(Code 1852, §1830; Code 1867, §2179; Code 1876, §2551; Code 1886, §2224; Code 1896, §292; Code 1907, §2757; Code 1923, §5996; Code 1940, T. 61, §383.)
Such report and statement must be accompanied by an affidavit of the executor or administrator to the effect that they are correct to the best of his or her knowledge, information and belief.
(Code 1852, §1831; Code 1867, §2180; Code 1876, §2552; Code 1886, §2225; Code 1896, §293; Code 1907, §2758; Code 1923, §5997; Code 1940, T. 61, §384.)
The probate court, on the filing of such report and statements, must appoint a day, not less than 30 nor more than 60 days therefrom, to hear and determine the same and must give notice to the creditors of and to all persons interested in the estate of the filing of the report and the day appointed to hear and determine the same by publication, once a week for three successive weeks, in some newspaper published in the county or, if none is published therein, in a newspaper published nearest to the courthouse of such county, and by posting such notice at the courthouse door for the same length of time and by forwarding such notice by mail to all creditors and to all adult heirs or distributees whose places of residence are known, and shall appoint guardians ad litem for all heirs or distributees who are minors or of unsound mind. Upon the day appointed or on any other day to which the hearing is continued, the court must proceed to hear and determine such report.
(Code 1852, §§1832, 1833; Code 1867, §§2181, 2182; Code 1876, §§2553, 2554; Code 1886, §§2226, 2227; Code 1896, §§294, 295; Code 1907, §§2759, 2760; Code 1923, §§5998, 5999; Code 1940, T. 61, §§385, 386.)
Any creditor or other person interested in the estate may make an issue as to the correctness of such report by denying in writing that the estate is insolvent, which issue must be tried by a jury on the application of any party; but only one issue must be made, in which any number of the creditors or persons interested in the estate may join at any time before the determination thereof.
(Code 1852, §§1834, 1837; Code 1867, §§2183, 2186; Code 1876, §§2555, 2558; Code 1886, §2228; Code 1896, §296; Code 1907, §2761; Code 1923, §6000; Code 1940, T. 61, §387.)
If such issue is decided against the executor or administrator, the report must be dismissed, and execution for the costs may issue against him or her and his or her sureties; but if it is decided in his or her favor, the costs must be paid by the contesting creditor, or parties interested in the estate, or out of the estate, as the court may direct.
(Code 1852, §§1835, 1836; Code 1867, §§2184, 2185; Code 1876, §§2556, 2557; Code 1886, §2229; Code 1896, §297; Code 1907, §2762; Code 1923, §6001; Code 1940, T. 61, §388.)
If no person contests the correctness of the report or if the issue is decided against contestant, the court must declare the estate insolvent and must make an order for the executor or administrator on a day therein named, not less than 30 nor more than 60 days therefrom, to appear and make a settlement of his or her administration; and of such order, and of the day appointed for such settlement, notice must be given by the judge of probate as is required by Section 43-2-704.
(Code 1852, §§1838, 1839; Code 1867, §§2187, 2188; Code 1876, §§2559, 2560; Code 1886, §2230; Code 1896, §298; Code 1907, §2763; Code 1923, §6002; Code 1940, T. 61, §389.)
An estate of a decedent having once been declared insolvent, it shall not be necessary for any succeeding administrator to apply for or obtain a declaration or decree of insolvency; but a declaration of insolvency once had, and remaining unreversed, shall continue and apply to and be effectual under all subsequent administrations, as if obtained under each of them.
(Code 1867, §4424; Code 1876, §2589; Code 1886, §2261; Code 1896, §329; Code 1907, §2766; Code 1923, §6005; Code 1940, T. 61, §392.)
(a) Any party to the proceedings to declare an estate insolvent may appeal to the supreme court or court of civil appeals from the decree or order declaring the estate insolvent or dismissing the report within 42 days from the rendition of such order or decree in the manner provided by law for appeals from the probate court in other similar or like proceedings.
(b) If an appeal has been taken on a contest as to the report of insolvency, the case must, on motion, be continued during the pendency of such appeal.
(Code 1852, §1861; Code 1867, §2210; Code 1876, §2582; Code 1886, §2252; Code 1896, §320; Code 1907, §§2764, 2765; Code 1923, §§6003, 6004; Code 1940, T. 61, §§390, 391.)
On the day appointed for the settlement of the administration of an estate declared insolvent or on any day to which the same is continued, the creditors present or represented may nominate to the court any fit person, an inhabitant of this state, as administrator of the property, rights and credits of such estate unadministered.
(Code 1852, §1840; Code 1867, §2189; Code 1876, §2561; Code 1886, §2231; Code 1896, §299; Code 1907, §2767; Code 1923, §6006; Code 1940, T. 61, §393.)
(a) In making the nomination, each creditor, in person or represented, votes as follows:
(1) On claims held by any one creditor, not exceeding in the aggregate $1,000.00, one vote for each $100.00; and
(2) On claims held by any one creditor, exceeding in the aggregate $1,000.00, 10 votes for the first $1, 000.00, and one for every additional $500.00.
(b) Every creditor is entitled to one vote, and no creditor to more than 20.
(c) The nomination must be made in the presence and under the direction of the court. The amount of claims held by any creditor must be proved by affidavit, as required by Section 43-2-352. The court may require other evidence of the correctness and amount of the claim.
(Code 1852, §§1841, 1842; Code 1867, §§2190, 2191; Code 1876, §§2562, 2563; Code 1886, §§2232, 2233; Code 1896, §§300, 301; Code 1907, §§2768, 2769; Code 1923, §§6007, 6008; Code 1940, T. 61, §§394, 395.)
The person receiving a plurality of votes must be appointed by the court administrator of the property, rights, and credits of the estate unadministered.
(Code 1852, §1843; Code 1867, §2192; Code 1876, §2564; Code 1886, §2234; Code 1896, §302; Code 1907, §2770; Code 1923, §6009; Code 1940, T. 61, §396.)
If none of the creditors attend at the time appointed or if, from any other cause, no appointment of such administrator is made, the court may, in its discretion, continue the former executor or administrator or may appoint any fit person, or the general administrator of the county or, should there be none, the sheriff of the county, to administer the estate according to the provisions of this division.
(Code 1852, §1845; Code 1867, §2194; Code 1876, §2566; Code 1886, §2235; Code 1896, §303; Code 1907, §2771; Code 1923, §6010; Code 1940, T. 61, §397.)
Whenever an administrator is appointed under the provisions of this division, any former grant of letters on the estate is thereby revoked; and the property of such estate is thereby vested in such administrator.
(Code 1852, §1846; Code 1867, §2195; Code 1876, §2567; Code 1886, §2237; Code 1896, §305; Code 1907, §2773; Code 1923, §6012; Code 1940, T. 61, §399.)
Whenever a vacancy occurs in the office of such administrator, the court, on motion of any creditor of the estate, may order another meeting of creditors, and hold another election, and make the appointment of the person elected, in all respects, as upon the first meeting of the creditors.
(Code 1852, §1844; Code 1867, §2193; Code 1876, §2565; Code 1886, §2236; Code 1896, §304; Code 1907, §2772; Code 1923, §6011; Code 1940, T. 61, §398.)
Every person having any claim against the estate declared insolvent must file the same in the office of the judge of probate as provided by subsection (b) of Section 43-2-350. Any defect or insufficiency in the affidavit may be supplied by amendment at any time. And when, prior to the declaration of insolvency, a claim has been filed in the office of the judge of probate, as required by said section, such claim shall be considered as duly filed under this section.
(Code 1852, §1847; Code 1867, §2196; Code 1876, §2568; Code 1886, §2238; Code 1896, §306; Code 1907, §2774; Code 1923, §6013; Acts 1931, No. 721, p. 839; Code 1940, T. 61, §400.)
The provisions of Section 43-2-740, as to the time within which claims are to be filed, do not apply to infants and persons of unsound mind who have no legal guardian at the time of the declaration of insolvency; but such minors and persons of unsound mind are allowed six months after the appointment of a guardian or, if none be appointed, six months after the removal of their respective disabilities in which to file their claims.
(Code 1852, §1848; Code 1867, §2197; Code 1876, §2569; Code 1886, §2239; Code 1896, §307; Code 1907, §2775; Code 1923, §6014; Code 1940, T. 61, §401.)
When a claim against such estate is verified by the oath of a person out of this state, but within the United States, such oath may be made before a notary public, justice of the peace, or any judge or clerk of a court of record, or a commissioner of such state. When made before a justice of the peace, it must be certified that such officer was a justice of the peace and that his or her attestation is genuine, by some judge of a court of record or a commissioner of said state; but, when made before either of the other officers specified, no other proof of the taking of such oath is necessary than the certificate of such officer.
(Code 1852, §1849; Code 1867, §2198; Code 1876, §2570; Code 1886, §2240; Code 1896, §308; Code 1907, §2776; Code 1923, §6015; Code 1940, T. 61, §402.)
When such oath is taken out of the United States, it may be taken before any judge or clerk of a court of record, mayor or chief magistrate of any county, city, borough or town, notary public or diplomatic, consular or commercial agent of the United States. No proof of the taking of such oath is necessary, other than the certificate of such officer.
(Code 1852, §1850; Code 1867, §2199; Code 1876, §2571; Code 1886, §2241; Code 1896, §309; Code 1907, §2777; Code 1923, §6016; Code 1940, T. 61, §403.)
The judge of probate must, when required, give a receipt for such claim to the claimant, his or her agent or attorney and must endorse on the claim the day when the same was filed and sign his or her name thereto.
(Code 1852, §1851; Code 1867, §2200; Code 1876, §2572; Code 1886, §2242; Code 1896, §310; Code 1907, §2778; Code 1923, §6017; Code 1940, T. 61, §404.)
Such judge must keep a docket of all the claims thus filed, which must be at all times, during office hours, subject to the inspection of the administrator and creditors of, or any person interested in, the estate.
(Code 1852, §1852; Code 1867, §2201; Code 1876, §2573; Code 1886, §2243; Code 1896, §311; Code 1907, §2779; Code 1923, §6018; Code 1940, T. 61, §405.)
If no opposition is made, in the manner provided in Section 43-2-747, within six months after the time when the estate was declared insolvent, such claim must be allowed against the estate without further proof.
(Code 1852, §1853; Code 1867, §2202; Code 1876, §2574; Code 1886, §2244; Code 1896, §312; Code 1907, §2780; Code 1923, §6019; Code 1940, T. 61, §406.)
At any time within six months after the declaration of insolvency, the administrator or any creditor, heir, legatee, devisee, or distributee may object to the allowance of any claim filed against the estate by filing objections thereto in writing; and, thereupon, the court must cause an issue to be made up between the claimant and objector, in which issue the correctness of such claim must be tried as in a civil action, if required; and, if it is found for the claimant to the whole amount thereof, the same must be allowed and such claimant recover the costs of the trial of such issue; but, if against the claimant, the claim must be rejected, and the party contesting recovers the cost of the trial of such issue.
(Code 1852, §1854; Code 1867, §2203; Code 1876, §2575; Code 1886, §2245; Code 1896, §313; Code 1907, §2781; Code 1923, §6020; Acts 1931, No. 732, p. 843; Code 1940, T. 61, §407.)
If a part only of such claim is found to be due, it must be allowed for that amount and the costs paid by either party, or in such proportion by either party as the court may direct.
(Code 1852, §1855; Code 1867, §2204; Code 1876, §2576; Code 1886, §2246; Code 1896, §314; Code 1907, §2782; Code 1923, §6021; Code 1940, T. 61, §408.)
Any creditor whose debt is not due must file the same as if due and thereupon must be considered as a creditor under this division; and he or she is entitled to his or her dividend or such an amount as, with the interest added from the time of payment to the maturity of the debt, would be equal to the amount thereof.
(Code 1852, §1862; Code 1867, §2211; Code 1876, §2583; Code 1886, §2253; Code 1896, §321; Code 1907, §2783; Code 1923, §6022; Code 1940, T. 61, §409.)
Any creditor of an insolvent estate, whose claim is allowed after a partial distribution, must be allowed out of the remaining assets of such estate, if sufficient, such an amount as will give him or her his or her just dividend.
(Code 1852, §1863; Code 1867, §2212; Code 1876, §2584; Code 1886, §2254; Code 1896, §322; Code 1907, §2784; Code 1923, §6023; Code 1940, T. 61, §410.)
(a) Any creditor of an insolvent estate, whose claim is not barred, may bring a civil action against any person who has received any dividend of such estate and may recover from him or her such an amount of the dividend he or she has received as shall be in the same proportion thereto as the claim of the plaintiff bears to the debts of the estate distributed, including the claim of the plaintiff.
(b) But, in such action, the defendant may reduce the recovery, by showing that such dividend has been reduced by the recovery or payment of the claims of other creditors of such estate in the like proportion.
(c) In such action, the plaintiff must pay the costs, unless he or she proves that he or she has exhibited his or her claim and demanded of the defendant his or her proportion of the dividend received by him or her before the commencement of the action.
(Code 1852, §§1864-1866; Code 1867, §§2213-2215; Code 1876, §§2585-2587; Code 1886, §§2255-2257; Code 1896, §§323-325; Code 1907, §§2785-2787; Code 1923, §§6024-6026; Code 1940, T. 61, §§411-413.)
Every executor or administrator of an insolvent estate must make a settlement of his or her accounts, as such, at such time as the court may appoint, not less than six months nor more than 12 months from the time the estate is declared insolvent.
(Code 1852, §1856; Code 1867, §2205; Code 1876, §2577; Code 1886, §2247; Code 1896, §315; Code 1907, §2788; Code 1923, §6027; Acts 1931, No. 729, p. 842; Code 1940, T. 61, §414.)
At such settlement, the court must decree to each creditor whose claim has been allowed, as provided in this article, his or her proportion of all moneys then found due from such executor or administrator, reserving in his or her hands a ratable proportion of such moneys for such claims as may be then contested and undecided; and a similar settlement and distribution must be made at least every six months thereafter, at such times as the court may appoint, until the estate is finally settled and distributed.
(Code 1852, §1857; Code 1867, §2206; Code 1876, §2578; Code 1886, §2248; Code 1896, §316; Code 1907, §2789; Code 1923, §6028; Code 1940, T. 61, §415.)
On the application of an executor or administrator of an estate which has been declared insolvent for an order for the sale of lands belonging to the estate for the payment of debts, he or she shall be allowed to obtain such order without taking any evidence to show the necessity of such sale.
(Code 1886, §2258; Code 1896, §326; Code 1907, §2790; Code 1923, §6029; Code 1940, T. 61, §416.)
Such application shall be in writing, verified by affidavit, shall contain an accurate description of the lands sought to be sold and shall set forth the names and places of residence of the heirs or devisees and whether they are under or over the age of 19 years; and the court shall give notice to such heirs or devisees of the filing of such application and of the day appointed to hear the same by publication once a week for three successive weeks in some newspaper published in the county or, if none is published therein, in the newspaper published nearest to the courthouse of such county, by posting notice at the courthouse door for the same length of time and by forwarding notices to those whose places of residence are known. If any of the heirs or devisees are unknown, they may be made parties in the manner provided by Section 43-2-447.
(Code 1886, §2259; Code 1896, §327; Code 1907, §2791; Code 1923, §6030; Code 1940, T. 61, §417.)
The administrator of an insolvent estate may maintain an action for the recovery of lands of the estate in every case in which such action might be maintained by him or her if the estate was solvent.
(Code 1867, §2216; Code 1876, §2588; Code 1886, §2260; Code 1896, §328; Code 1907, §2792; Code 1923, §6031; Code 1940, T. 61, §418.)
During the progress of any civil action against an executor or administrator, he or she may show that such estate has been reported insolvent; and, upon such showing, the case must be continued until the final disposition of such report.
(Code 1852, §1858; Code 1867, §2207; Code 1876, §2579; Code 1886, §2249; Code 1896, §317; Code 1907, §2793; Code 1923, §6032; Code 1940, T. 61, §419.)
The executor or administrator may, at any time before judgment, plead specially that the estate has been declared insolvent; and, in such case, the other issues must be tried and judgment entered thereon.
(Code 1852, §1859; Code 1867, §2208; Code 1876, §2580; Code 1886, §2250; Code 1896, §318; Code 1907, §2794; Code 1923, §6033; Code 1940, T. 61, §420.)
If such judgment is for the plaintiff, and it is shown to the court that such estate has been declared insolvent, an order must be made to the effect that no execution issue on such judgment, but that the same be certified to the proper probate court. Upon a certified copy of such judgment being filed as a claim against the estate, it must be allowed with the costs against such estate, unless shown to have been obtained by collusion; and when such judgment is certified, the clerk may demand of the plaintiff payment of all costs incurred in obtaining the same. If the plaintiff fails for 20 days after the judgment is so certified to pay such costs, execution may issue against him or her for the same as in other cases.
(Code 1852, §1860; Code 1867, §2209; Code 1876, §2581; Code 1886, §2251; Code 1896, §319; Code 1907, §2795; Code 1923, §6034; Code 1940, T. 61, §421.)
After judgment or decree has been rendered in any court against an executor or administrator for any debt, damages, or costs, if the estate is subsequently declared insolvent, such personal representative may file a certified copy of the decree or order of the probate court declaring such estate insolvent with the clerk or register of the court in which such judgment or decree was rendered against the personal representative; whereupon, it shall be the duty of such clerk or register to certify back to the probate court a copy of such judgment or decree for payment in the probate court as other claims against insolvent estates, after which no execution shall issue or be further enforced against such executor or administrator or sureties personally by the court rendering such judgment or decree.
(Code 1907, §2796; Code 1923, §6035; Code 1940, T. 61, §422.)
(a) Upon the death of a person, decedent’s real property devolves to the persons to whom it is devised by decedent’s last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of a testate estate, or in the absence of testamentary disposition, to decedent’s heirs, or to those indicated as substitutes for them in cases involving renunciation or other circumstances affecting devolution of intestate estates.
(b) Decedent’s personal property devolves to the personal representative to be distributed to:
(1) Those persons to whom it is devised by the testator’s last will or to those indicated as substitutes for them in cases involving lapse, renunciation, or other circumstances affecting the devolution of a testate estate; or
(2) In the absence of testamentary disposition, to decedent’s heirs, or to those indicated as substitutes for them in cases involving renunciations or other circumstances affecting devolution of intestate estates.
(c) The devolution of a decedent’s property, real and personal, is subject to homestead allowance, exempt property, family allowance, rights of creditors, elective share of the surviving spouse, and to administration.
(Acts 1993, No. 93-722, p. 1411, §1.)
The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral, and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.
(Acts 1993, No. 93-722, p. 1411, §2.)
A person to whom general letters are issued first has exclusive authority under the letters until the appointment is terminated or modified. If, through error, general letters are afterwards issued to another, the first appointed personal representative may recover any property of the estate in the hands of the personal representative subsequently appointed, but the acts of the latter done in good faith before notice of the first letters are not void for want of validity of appointment.
(Acts 1993, No. 93-722, p. 1411, §3.)
(a) A personal representative is a fiduciary. Except as otherwise provided by the terms of the will, the personal representative shall observe the standards in dealing with the estate that would be observed by a prudent person dealing with the property of another. If the personal representative has special skills or is named personal representative on the basis of representations of special skills or expertise, the personal representative is under a duty to use those skills. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of any probated and effective will and Title 43, and as expeditiously and efficiently as is consistent with the best interests of the estate. The personal representative shall use the authority conferred upon personal representatives by law, the terms of the will, if any, and any order in proceedings to which the personal representative is party for the best interests of successors to the estate.
(b) A personal representative shall not be surcharged for acts of administration or distribution if the conduct in question was authorized at the time. Subject to other obligations of administration, a probated will is authority to administer and distribute the estate according to its terms. An order of appointment of a personal representative is authority to distribute apparently intestate assets to the heirs of the decedent if, at the time of distribution, the personal representative is not aware of a pending testacy proceeding, a proceeding to vacate an order entered in an earlier testacy proceeding, a proceeding questioning the personal representative’s appointment or fitness to continue, or a supervised administration proceeding. Nothing in this section affects the duty of the personal representative to administer and distribute the estate in accordance with the rights of claimants, the surviving spouse, any minor or dependent child, and any pretermitted child of the decedent.
(c) Except as to proceedings which do not survive the death of the decedent, a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately prior to death.
(Acts 1993, No. 93-722, p. 1411, §4.)
A personal representative shall proceed expeditiously with the settlement and distribution of a decedent’s estate, and except as otherwise specified by law or ordered by the court, shall do so without adjudication, order, or direction of the court, but the personal representative may invoke the jurisdiction of the court to resolve any questions concerning the estate or its administration.
(Acts 1993, No. 93-722, p. 1411, §5.)
(a) Within two months after appointment, a personal representative, who is not a special administrator or a successor to another representative who has previously discharged this duty, shall file an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent’s death, and the type and amount of any encumbrance that may exist with reference to any item.
(b) The personal representative shall send a copy of the inventory to interested persons who request it. If the testator, by express provision in the will to that effect, exempts the personal representative from filing an inventory, the personal representative shall not be required to file the initial inventory, or any supplement thereto, with the court, unless in the opinion of the court, the estate is likely to be wasted, to the prejudice of any interested person.
(Acts 1993, No. 93-722, p. 1411, §6.)
If any property not included in the initial inventory comes to the knowledge of a personal representative or if the personal representative learns that the value or description indicated in the initial inventory for any item is erroneous or misleading, the personal representative shall make a supplement to the initial inventory or appraisement showing the market value as of the date of the decedent’s death of the new item or the revised market value or descriptions, and the appraisers or other data relied upon, if any, and file it with the court if the initial inventory was filed, or furnish copies thereof to persons interested in the new information.
(Acts 1993, No. 93-722, p. 1411, §7.)
Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration. A request in writing by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration. The personal representative shall pay taxes on, receive the income therefrom, and pay the expenses reasonably necessary for the management, protection, and preservation of, the estate in the possession of the personal representative. The personal representative may maintain an action to recover possession of property or to determine the title thereto.
(Acts 1993, No. 93-722, p. 1411, §8.)
The property liable for the payment of unsecured debts of a decedent includes all property transferred by the decedent by any means which is in law void or voidable as against creditors, and subject to prior liens, the right to recover this property, so far as necessary for the payment of unsecured debts of the decedent, is exclusively in the personal representative.
(Acts 1993, No. 93-722, p. 1411, §9.)
Until termination of the appointment, a personal representative has the same power over the title to property of the estate, subject to Sections 43-2-843 and 43-2-844, that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court.
(Acts 1993, No. 93-722, p. 1411, §10.)
If the exercise of power concerning the estate is improper, the personal representative is liable to interested persons for damage or loss resulting from breach of the personal representative’s fiduciary duty to the same extent as a trustee of an express trust. The rights of purchasers and others dealing with a personal representative shall be determined as provided in Sections 43-2-841 and 43-2-842.
(Acts 1993, No. 93-722, p. 1411, §11.)
Any sale or encumbrance to the personal representative, the personal representative’s spouse, agent or attorney, or any corporation or trust in which the personal representative has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest on the part of the personal representative, is voidable by any person interested in the estate except one who has consented after fair disclosure, unless:
(1) The will or a contract entered into by the decedent expressly authorized the transaction.
(2) The transaction is approved by the court after notice to interested persons.
(3) The transaction is otherwise authorized by law.
(Acts 1993, No. 93-722, p. 1411, §12.)
A person who, in good faith, either assists a personal representative or deals with the personal representative for value is protected as if the personal representative properly exercised the power. The fact that a person knowingly deals with a personal representative does not alone require the person to inquire into the existence of a power or the propriety of its exercise. Except for restrictions on powers of personal representatives which are endorsed on the letters, no provision in any will or order of court purporting to limit the power of a personal representative is effective except as to persons with actual knowledge thereof. A person is not bound to see to the proper application of estate assets paid or delivered to a personal representative. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters, including a case in which the alleged decedent is found to be alive. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.
(Acts 1993, No. 93-722, p. 1411, §13.)
Except as restricted or otherwise provided by the will or by an order of court and subject to the priorities stated in Section 43-8-76, a personal representative, acting prudently for the benefit of the interested persons, may properly:
(1) Retain assets owned by the decedent pending distribution or liquidation including those in which the representative is personally interested or which are otherwise improper for trust investment.
(2) Receive assets from fiduciaries, or other sources.
(3) Perform, compromise, or refuse performance of the decedent’s contracts that continue as obligations of the estate, as the personal representative may determine under the circumstances. In performing enforceable contracts by the decedent to convey or lease land, the personal representative, among other possible courses of action, may do either of the following:
a. Execute and deliver a deed of conveyance for cash payment of all sums remaining due or the purchaser’s note for the sum remaining due secured by a mortgage or deed of trust on the land.
b. Deliver a deed in escrow with directions that the proceeds when paid in accordance with the escrow agreement, be paid to the successors of the decedent, as designated in the escrow agreement.
(4) Satisfy written charitable pledges of the decedent irrespective of whether the pledges constituted binding obligations of the decedent or were properly presented as claims, if in the judgment of the personal representative the decedent would have wanted the pledges completed under the circumstances.
(5) If funds are not needed to meet debts and expenses currently payable and are not immediately distributable, deposit or invest liquid assets of the estate, including moneys received from the sale of other assets, in federally insured interest-bearing accounts, readily marketable secured loan arrangements, or other prudent investments which would be reasonable for use by trustees generally.
(6) Abandon personal property when, in the opinion of the personal representative, it is valueless, or is so encumbered, or is in condition that it is of no benefit to the estate.
(7) Vote stocks or other securities in person or by general or limited proxy.
(8) Pay calls, assessments, and other sums chargeable or accruing against or on account of securities, unless barred by the provisions relating to claims.
(9) Hold a security in the name of a nominee or in other form without disclosure of the interest of the estate but the personal representative is liable for any act of the nominee in connection with the security so held.
(10) Insure the assets of the estate against damage, loss, and liability and the personal representative against liability as to third persons.
(11) Borrow money without security or with security of personal property to be repaid from the estate assets or otherwise; and advance money for the protection of the estate.
(12) Effect a fair and reasonable compromise with any debtor or obligor, or extend, renew, or in any manner modify the terms of any obligation owing to the estate. If the personal representative holds a mortgage, pledge, or other lien upon property of another person, the personal representative may, in lieu of foreclosure, accept a conveyance or transfer of encumbered assets from the owner thereof in satisfaction of the indebtedness secured by the lien.
(13) Pay taxes, assessments, and other expenses incident to the administration of the estate.
(14) Sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
(15) Enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term not to exceed one year.
(16) Allocate items of income or expense to either estate income or principal, as permitted or provided by law.
(17) Employ necessary persons, including appraisers, attorneys, auditors (who may include certified public accountants, public accountants, or internal auditors), investment advisors, or agents, even if they are associated with the personal representative, to advise or assist the personal representative in the performance of administrative duties; act without independent investigation upon recommendations of agents or advisors; and instead of acting personally, employ one or more agents to perform any act of administration, whether or not discretionary.
(18) Prosecute or defend claims or proceedings in any jurisdiction for the protection or benefit of the estate and of the personal representative in the performance of duties of the personal representative.
(19) Continue any unincorporated business or venture in which the decedent was engaged at the time of death as provided in any of the following:
a. In the same business form for a period of not more than one year from the date of appointment of a general personal representative if continuation is a reasonable means of preserving the value of the business including good will.
b. In the same business form for any additional period of time that may be approved by order of the court in a proceeding to which the persons interested in the estate are parties.
c. Throughout the period of administration if the business is incorporated by the personal representative and if none of the probable distributees of the business who are competent adults object to its incorporation and retention in the estate.
(20) Incorporate any business or venture in which the decedent was engaged at the time of death.
(21) Provide for exoneration of the personal representative from personal liability in any contract entered into on behalf of the estate.
(22) Satisfy and settle claims and distribute the estate as provided in Title 43.
(Acts 1993, No. 93-722, p. 1411, §14.)
Unless expressly authorized by the will, a personal representative, only after prior approval of court, may:
(1) Acquire or dispose of an asset, including land in this or another state, for cash or on credit, at public or private sale; and manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset.
(2) Make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, or raze existing or erect new party walls or buildings.
(3) Subdivide, develop, or dedicate land to public use; make or obtain the vacation of plats and adjust boundaries; adjust differences in valuation on exchange or partition by giving or receiving considerations; or dedicate easements to public use without consideration.
(4) Enter for any purpose into a lease as lessor or lessee, with or without option to purchase or renew, for a term of more than one year.
(5) Enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement.
(6) Sell, mortgage, or lease any real or personal property of the estate or any interest therein for cash, credit, or for part cash and part credit, and with or without security for any unpaid balance.
(7) Pay compensation of the personal representative.
(Acts 1993, No. 93-722, p. 1411, §15.)
A successor personal representative has the same power and duty as the original personal representative to complete the administration and distribution of the estate, as expeditiously as possible, but a successor personal representative shall not exercise any power expressly made personal to the personal representative named in the will.
(Acts 1993, No. 93-722, p. 1411, §16.)
If two or more persons are appointed co-representatives and unless the will provides otherwise, the concurrence of all is required on all acts connected with the administration and distribution of the estate. This restriction does not apply: (i) when any co-representative receives and receipts for property due the estate; (ii) when the concurrence of all cannot readily be obtained in the time reasonably available for emergency action necessary to preserve the estate; or (iii) when a co-representative has been delegated to act for the others. Persons dealing with a co-representative, if actually unaware that another has been appointed to serve as co-representative or if advised by the personal representative with whom they deal that the personal representative has authority to act alone for any of the reasons mentioned herein, are as fully protected as if the person with whom they dealt had been the sole personal representative.
(Acts 1993, No. 93-722, p. 1411, §17.)
Unless the terms of the will otherwise provide, every power exercisable by personal co-representatives may be exercised by the one or more remaining after the appointment of one or more is terminated, and if one of two or more nominated as personal co-representatives is not appointed, those appointed may exercise all the powers incident to the office.
(Acts 1993, No. 93-722, p. 1411, §18.)
(a) A personal representative is entitled to reasonable compensation for services as may appear to the court to be fair considering such factors that may include, but are not limited to, the novelty and difficulty of the administrative process, the skill requisite to perform the service, the likelihood that the acceptance of the particular employment will preclude other employment, the fee customarily charged in the locality for similar services, the amount involved and the results obtained, the requirements imposed by the circumstances and condition of the estate, the nature and length of the professional relationship with the decedent, the experience, reputation, diligence, and ability of the person performing the services, the liability, financial or otherwise, of the personal representative, or the risk and responsibility involved, which shall not exceed two and one-half percent of the value of all property received and under the possession and control of the personal representative and two and one-half percent of all disbursements.
(b) In addition the court may allow a reasonable compensation for extraordinary services performed for the estate.
(c) If a will provides for compensation, or no compensation, of the personal representative either directly or conditionally and there is no contract with the decedent regarding compensation, the personal representative may renounce the provisions and if no alternate or successor personal representative is willing to serve for the compensation provided in the will for the personal representative, the personal representative in the order of priority provided in the will shall be entitled to reasonable compensation. A personal representative also may renounce the right to all or any part of the compensation. A renunciation may be filed with the court.
(d) Nothing in this section shall be construed to limit the right of a decedent or all affected beneficiaries to agree in writing with the personal representative, as to the amount or the method of determining the personal representative’s compensation, which shall be binding on all parties if the appointment is accepted and the agreement is not unconscionable.
(Acts 1993, No. 93-722, p. 1411, §19.)
If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, the personal representative is entitled to receive from the estate necessary expenses and disbursements, including, but not limited to, reasonable attorneys’ fees incurred.
(Acts 1993, No. 93-722, p. 1411, §20.)
On petition or appropriate motion of an interested person, and after notice to all interested persons, the propriety of employment of any person by a personal representative including any attorney, auditor (who may include certified public accountants, public accountants, or internal auditors), investment advisor, or other specialized agent or assistant, the reasonableness of the compensation of any person so employed, or the reasonableness of the compensation determined by the personal representative for the personal representative’s own services, may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.
(Acts 1993, No. 93-722, p. 1411, §21.)
(a) The court must require a personal representative or special administrator to furnish bond payable to the judge of probate conditioned upon faithful discharge of all duties of the trust according to law, with sureties as it shall specify. Unless otherwise directed, the bond must be in the amount of the aggregate capital value of the property of the estate in the personal representative’s control, plus one year’s estimated income, and minus the value of securities deposited under arrangements requiring an order of the court for their removal and the value of any land which the fiduciary, pursuant to Section 43-2-844, lacks power to sell or convey without court authorization. The court, in lieu of sureties on a bond, may accept other collateral for the performance of the bond, including a pledge of securities or any other assets or a mortgage of land.
(b) The court may at any time reduce the bond of the personal representative or require the personal representative to provide additional or larger bond as may seem to be proper or necessary to protect the estate and the interests of persons interested in the estate.
(c) Any individual, who is authorized under Chapter 2 of Title 43, to nominate a personal representative by will, may, by express provision in the will, exempt the personal representative from giving bond; and when a provision to that effect is made, the bond must not be required except in the following cases:
(1) When any guardian, conservator, guardian ad litem, other fiduciary, or any person interested in the estate of the decedent makes an affidavit, showing the affiant’s interest and alleging that the interest is, or will be, endangered for want of security.
(2) When, in the opinion of the court, on its own motion, the estate is likely to be wasted, to the prejudice of any person interested therein.
(d) In the cases provided for by subsection (c), upon application for the personal representative to give bond, the personal representative may show cause against applications of the exceptions and must have notice as the court may deem reasonable; but if the personal representative is not in the state, the application may be heard and determined without notice.
(Acts 1993, No. 93-722, p. 1411, §22; Acts 1995, No. 95-255, p. 427, §1.)
(a) The following requirements and provisions apply to any bond required under Section 43-2-850:
(1) Sureties are jointly and severally liable with the personal representative and with each other.
(2) By executing an approved bond of a personal representative, the surety consents to the jurisdiction of the court that issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the personal representative and naming the surety as a party respondent. Notice of any proceeding must be delivered to the surety or mailed by registered or certified mail to the address listed with the court at the place where the bond is filed and to the address as then known to the petitioner.
(3) On petition of a successor personal representative or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the personal representative.
(4) The bond of the personal representative is not void after the first recovery, but may be proceeded against from time to time until the whole penalty is exhausted.
(b) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.
(Acts 1993, No. 93-722, p. 1411, §23.)
(a) Estates filed for probate prior to January 1, 1994, the administration of which continues in effect after January 1, 1994, are unaffected by this article. Those estates continue in effect and administration continues as they existed prior to this article with all the powers and duties previously granted to the personal representative either under the will or by a court; except that a personal representative appointed prior to January 1, 1994, upon petition to and approved by the court, may be governed by this article, and in addition, have the powers and duties of a personal representative enumerated in this article and as further authorized by the court.
(b) Upon election by a previously appointed personal representative to be governed by this article, the court also may approve the bond, reduce the bond, or require additional or larger bond of the personal representative and set fees of the personal representative as provided in this article.
(Acts 1993, No. 93-722, p.1411, §25.)
Nothing contained in this article shall be construed to abrogate any right, authority, or discretion conferred upon a personal representative or other fiduciary under any other law.
(Acts 1993, No. 93-722, p.1411, §26.)
The personal representative of any person leaving property not devised or bequeathed, or where the devisees or legatees are incapable of taking and such representative is unable to ascertain any lawful heirs or distributees or persons capable of taking within six months after the grant of letters testamentary or of administration, must give notice thereof in some newspaper published in the state once a week for three successive weeks; but it shall not be necessary for any personal representative to institute escheat proceedings under this chapter until the debts of the decedent have been paid.
(Code 1852, §2065; Code 1867, §2457; Code 1876, §2852; Code 1886, §1937; Code 1896, §1753; Code 1907, §3919; Code 1923, §7615; Code 1940, T. 16, §26.)
Such notice must contain the name of the deceased, as near as may be, a description of his or her person, the place where he or she was or is supposed to have been born, the place where he or she died, or was known to reside, and a description of the property of which he or she died seised and possessed.
(Code 1852, §2066; Code 1867, §2458; Code 1876, §2853; Code 1886, §1938; Code 1896, §1754; Code 1907, §3920; Code 1923, §7616; Code 1940, T. 16, §27.)
If no heir or person entitled to receive such estate appears or is ascertained within 12 months after such publication, the money and proceeds of the personal assets must be paid to the judge of probate, after deducting the expenses of administration.
(Code 1852, §2067; Code 1867, §2459; Code 1876, §2854; Code 1886, §1939; Code 1896, §1755; Code 1907, §3921; Code 1923, §7617; Code 1940, T. 16, §28.)
If, after two years from the publication of such notice, no heir or person entitled to receive such estate appears, the real estate must be sold by such personal representative, under the direction of the judge of probate of the county in which letters testamentary or of administration were granted and upon such notice as real estate is sold by executors and administrators; and the proceeds thereof must, after deducting all expenses and allowances, be paid to such judge.
(Code 1852, §2068; Code 1867, §2460; Code 1876, §2855; Code 1886, §1940; Code 1896, §1756; Code 1907, §3922; Code 1923, §7618; Code 1940, T. 16, §29.)
The judge of probate may render decrees against such personal representative, in the name of the state, for the money or proceeds of the property, under the provisions of this chapter, and enforce the same as other decrees by the judge of probate against executors or administrators are enforced.
(Code 1852, §2069; Code 1867, §2461; Code 1876, §2856; Code 1886, §1941; Code 1896, §1757; Code 1907, §3923; Code 1923, §7619; Code 1940, T. 16, §30.)
The judge of probate must, within three months after the receipt thereof, pay to the treasurer all moneys he or she may receive under the provisions of this chapter, and, failing so to do, he or she is liable as a defaulter and also forfeits $300.00, one half to the state, and the other half to any one suing for the same; and, on the trial, the certificate of the treasurer is presumptive evidence of his or her failure to make such payment.
(Code 1852, §2070; Code 1867, §2462; Code 1876, §2857; Code 1886, §1942; Code 1896, §1758; Code 1907, §3924; Code 1923, §7620; Code 1940, T. 16, §31.)
The state may enforce its right to any personal property to which it is entitled under the provisions of this chapter by action against any person into whose possession the same may come; and, if any personal representative pays any money or delivers any property to which the state is, under the provisions of this chapter, entitled, to any person not authorized to receive the same, such personal representative and his or her sureties are liable to the state for the amount of such money or value of such property and interest thereon from the time of such payment or delivery.
(Code 1852, §2072; Code 1867, §2464; Code 1876, §2858; Code 1886, §1943; Code 1896, §1759; Code 1907, §3925; Code 1923, §7621; Code 1940, T. 16, §32.)
It is the official duty of the judge of probate of each county to attend to the interest of the state intended to be secured by the provisions of this chapter.
(Code 1852, §2073; Code 1867, §2465; Code 1876, §2859; Code 1886, §1944; Code 1896, §1760; Code 1907, §3926; Code 1923, §7622; Code 1940, T. 16, §33.)
This chapter may be cited as the Uniform Simultaneous Death Act.
(Acts 1949, No. 542, p. 852, §8.)
Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he or she had survived, except as provided otherwise in this chapter.
(Acts 1949, No. 542, p. 852, §1.)
Where two or more beneficiaries are designated to take successively by reason of survivorship under another person’s disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously, the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
(Acts 1949, No. 542, p. 852, §2.)
Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one half as if one had survived and one half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.
(Acts 1949, No. 542, p. 852, §3.)
Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
(Acts 1949, No. 542, p. 852, §4.)
This chapter shall not apply to the distribution of the property of a person who died before September 7, 1949.
(Acts 1949, No. 542, p. 852, §5.)
This chapter shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for distribution of property different from the provisions of this chapter or wherein provision is made for a presumption as to the order of survivorship if there is no sufficient evidence that the persons died otherwise than simultaneously, in which event full effect shall be given to the presumption so provided as to the order of survivorship.
(Acts 1949, No. 542, p. 852, §6; Acts 1951, No. 949, p. 1619.)
This chapter shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact it.
(Acts 1949, No. 542, p. 852, §7.)
Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or divisions, and unless the context otherwise requires, in this chapter, the following words shall have the following meanings:
(1) BENEFICIARY. As it relates to trust beneficiaries, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer and as it relates to a charitable trust, includes any person entitled to enforce the trust.
(2) CHILD. Includes any individual entitled to take as a child under this chapter by intestate succession from the parent whose relationship is involved and excludes any person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.
(3) COURT. The court having jurisdiction in matters relating to the affairs of decedents. This court in Alabama is known as the probate court.
(4) DAYS. That period of time as computed in accordance with Section 1-1-4 and Rule 6(a), Alabama Rules of Civil Procedure.
(5) DEVISE. When used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.
(6) DEVISEE. Any person designated in a will to receive a devise. In the case of a devise to an existing trust or trustee, or to a trustee or trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.
(7) DISTRIBUTEE. Any person who has received property of a decedent from his or her personal representative other than as creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in his or her hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For purposes of this provision, “testamentary trustee” includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(8) ESTATE. Includes the property of the decedent whose affairs are subject to this chapter as originally constituted and as it exists from time to time during administration.
(9) EXEMPT PROPERTY. That property of a decedent’s estate which is described in Section 43-8-111.
(10) FIDUCIARY. Includes personal representative, guardian, and trustee.
(11) FOREIGN PERSONAL REPRESENTATIVE. A personal representative of another jurisdiction.
(12) GUARDIAN. A person who has qualified as a guardian of a minor or incompetent person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.
(13) HEIRS. Those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent.
(14) INTERESTED PERSON. Any person having an enforceable right or claim, which may be affected by the proceeding, and may include heirs, devisees, children, spouses, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding. “Interested person” also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning of “interested person” as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.
(15) ISSUE OF A PERSON. All his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this chapter.
(16) LEASE. Includes an oil, gas, or other mineral lease.
(17) LETTERS. Includes letters testamentary and letters of administration.
(18) MINOR. A person who is under 19 years of age.
(19) MORTGAGE. Any conveyance, agreement, or arrangement in which property is used as security.
(20) NONRESIDENT DECEDENT. A decedent who was domiciled in another jurisdiction at the time of his or her death.
(21) ORGANIZATION. Includes a corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal entity.
(22) PARENT. Includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this chapter by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.
(23) PERSON. An individual, a corporation, an organization, or other legal entity.
(24) PERSONAL REPRESENTATIVE. Includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status.
(25) PROPERTY. Includes both real and personal property or any interest therein and means anything that may be the subject of ownership.
(26) SECURITY. Includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate, or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.
(27) SETTLEMENT. In reference to a decedent’s estate, includes the full process of administration, distribution, accounting, and closing.
(28) STATE. Includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession subject to the legislative authority of the United States.
(29) SUCCESSOR PERSONAL REPRESENTATIVE. A personal representative who is appointed to succeed a previously appointed personal representative.
(30) SUCCESSORS. Those persons, other than creditors, who are entitled to property of a decedent under his or her will or this chapter.
(31) TESTACY PROCEEDING. A proceeding to establish a will or determine intestacy.
(32) TRUST. Includes any express trust, private or charitable, with additions thereto, wherever and however created. It also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. “Trust” excludes other constructive trusts, and it excludes resulting trusts, guardianships, curatorships, personal representatives, custodial arrangements pursuant to Chapter 5 of Title 35, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.
(33) TRUSTEE. Includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.
(34) WILL. Includes codicil and any testamentary instrument which merely appoints an executor or revokes or revises another will.
(Acts 1982, No. 82-399, §1-201.)
(a) This chapter shall be liberally construed and applied to promote its underlying purposes and policies.
(b) The underlying purposes and policies of this chapter are:
(1) To simplify and clarify the law concerning the affairs of decedents;
(2) To discover and make effective the intent of a decedent in the distribution of his or her property.
(Acts 1982, No. 82-399, §1-102.)
Unless displaced by the particular provisions of this chapter, the principles of law and equity supplement its provisions.
(Acts 1982, No. 82-399, §1-103.)
This chapter is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided.
(Acts 1982, No. 82-399, §1-105.)
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter or if fraud is used to avoid or circumvent the provisions or purposes of this chapter, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not. Any proceeding must be commenced within one year after the discovery of the fraud or from the time when the fraud should have been discovered, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of the commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his or her lifetime which affects the succession of his or her estate.
(Acts 1982, No. 82-399, §1-106.)
In proceedings under this chapter, the rules of evidence in courts of general jurisdiction, including any relating to simultaneous deaths, are applicable unless specifically displaced by the chapter. In addition, the following rules relating to determination of death and status are applicable:
(1) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death, and the identity of the decedent;
(2) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;
(3) A person who is absent for a continuous period of five years, during which he or she has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. His or her death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
(Acts 1982, No. 82-399, §1-107.)
For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability or penalty for failure to post bond, or to perform other duties, and for purposes of consenting to modification or termination of a trust or to deviation from its terms, the sole holder or all co-holders of a presently exercisable general power of appointment, including one in the form of a power of amendment or revocation, are deemed to act for beneficiaries to the extent their interests (as objects, takers in default, or otherwise) are subject to the power.
(Acts 1982, No. 82-399, §1-108.)
(a) This chapter takes effect on January 1, 1983.
(b) Except as provided elsewhere in this chapter, on January 1, 1983:
(1) The chapter applies to any wills of decedents dying thereafter;
(2) An act of any personal representative or guardian done before January 1, 1983 in any proceeding and any accrued right is not impaired by this chapter. If a right is acquired, extinguished or barred upon the expiration of a prescribed period of time which has commenced to run by the provisions of any statute before January 1, 1983, the provisions shall remain in force with respect to that right; and
(3) Any rule of construction or presumption provided in this chapter applies to instruments executed before January 1, 1983 unless there is a clear indication of a contrary intent.
(Acts 1982, No. 82-399, §8-101.)
No provision of this chapter shall be construed to void, alter, or modify, when invoked, the equity jurisdiction or powers of Jefferson and Mobile counties.
(Acts 1982, No. 82-399, §8-103.)
Except as otherwise provided in this chapter, this chapter applies to:
(1) The affairs and estates of decedents domiciled in this state; and
(2) The property of nonresidents located in this state or property coming into the control of a fiduciary who is subject to the laws of this state.
(Acts 1982, No. 82-399, §1-301.)
(a) Where a proceeding under this chapter could be maintained in more than one place in this state, the court in which the proceeding is first commenced has the exclusive right to proceed.
(b) If proceedings concerning the same estate are commenced in more than one court of this state, the court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided, and if the ruling court determines that venue is properly in another court, it shall transfer the proceeding to the other court.
(c) If the court finds that in the interest of justice a proceeding or a file should be located in another court of this state, the court making the finding may transfer the proceeding or file to the other court.
(Acts 1982, No. 82-399, §1-303.)
Except as otherwise specifically provided in this chapter or by rule, every document filed with the court under this chapter including applications, petitions, and demands for notice, shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows and penalties for perjury may follow deliberate falsification therein.
(Acts 1982, No. 82-399, §1-310.)
In the event the estate qualifies as a small estate under Section 43-2-691, the summary distribution proceedings for a small estate under Division 10 of Article 18 of Chapter 2 of this title are available to the small estate.
(Act 2025-431, §2.)
If an estate is not a small estate, as defined in Section 43-2-691, which is being distributed as a summary distribution under Division 10 of Article 18 of Chapter 2 of this title, then any part of the estate of a decedent not effectively disposed of by the decedent’s will passes to the decedent’s heirs as prescribed in the following sections of this chapter.
(Acts 1982, No. 82-399, §2-101; Act 2025-431, §1.)
The intestate share of the surviving spouse is as follows:
(1) If there is no surviving issue or parent of the decedent, the entire intestate estate;
(2) If there is no surviving issue but the decedent is survived by a parent or parents, the first $100,000.00 in value, plus one-half of the balance of the intestate estate;
(3) If there are surviving issue all of whom are issue of the surviving spouse also, the first $50,000.00 in value, plus one-half of the balance of the intestate estate;
(4) If there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate;
(5) If the estate is located in two or more states, the share shall not exceed in the aggregate the allowable amounts under this chapter.
(Acts 1982, No. 82-399, §2-102.)
The part of the intestate estate not passing to the surviving spouse under Section 43-8-41, or the entire intestate estate if there is no surviving spouse, passes as follows:
(1) To the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;
(2) If there is no surviving issue, to his or her parent or parents equally;
(3) If there is no surviving issue or parent, to the issue of the parents or either of them by representation;
(4) If there is no surviving issue, parent, or issue of a parent, but the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the other half.
(Acts 1982, No. 82-399, §2-103.)
Any person who fails to survive the decedent by five days is deemed to have predeceased the decedent for purposes of homestead allowance, the exempt property, and intestate succession, and the decedent’s heirs are determined accordingly. If the time of death of the decedent or of the person who would otherwise be an heir, or the times of death of both, cannot be determined, and it cannot be established that the person who would otherwise be an heir has survived the decedent by five days, it is deemed that the person failed to survive for the required period. This section is not to be applied where its application would result in a taking of intestate estate by the state under Section 43-8-44.
(Acts 1982, No. 82-399, §2-104.)
If there is no taker under the provisions of this article, the intestate estate passes to the state of Alabama.
(Acts 1982, No. 82-399, §2-105.)
If representation is called for by this chapter, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent, each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among the issue of such deceased heir in the same manner.
(Acts 1982, No. 82-399, §2-106.)
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
(Acts 1982, No. 82-399, §2-107.)
Relative of the decedent conceived before his or her death but born thereafter inherit as if they had been born in the lifetime of the decedent.
(Acts 1982, No. 82-399, §2-108.)
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
(1) An adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the right of the child to inherit from or through either natural parent;
(2) In cases not covered by subdivision (1) of this section, a person born out of wedlock is a child of the mother. That person is also a child of the father, if:
a. The natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
b. The paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, but the paternity established under this paragraph is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.
(Acts 1982, No. 82-399, §2-109.)
If a person dies intestate as to all his or her estate, property which he or she gave in his or her lifetime to an heir is treated as an advancement against the latter’s share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient’s issue, unless the declaration or acknowledgment provides otherwise.
(Acts 1982, No. 82-399, p. 578, §2-110.)
Controversies as to advancements are cognizable before the probate court, on the application, either of a party who has received an advancement, or of a party in interest, who alleges that an advancement has been made; and upon demand of either party, an issue in writing shall be made up under the direction of the court and tried by a jury as in other cases of contested fact.
(Code 1867, §1904; Code 1876, §2268; Code 1886, §1931; Code 1896, §1469; Code 1907, §3773; Code 1923, §7384; Code 1940, T. 16, §20; Code 1975, §43-3-35.)
Pending administration of an estate, on the application of the executor or administrator, or someone interested in the estate, to the probate court where the administration is, alleging on oath that an advancement has been made by the decedent, and that the value of such advancement is not expressed in any conveyance or receipt, within the applicant’s knowledge, or in any charge made by the decedent, the judge of probate must issue citation to the distributee or heir alleged to have received such advancement, requiring him or her, within a specified time, not less than 30 nor more than 60 days, to report on oath a list of the property received, the time when and the value of the same when received, or to deny on oath having received any advancement from the decedent. If the party alleged to have received the advancement is a nonresident of the state, notice must be given by publication once a week for three successive weeks in some newspaper published in the county, or if no paper is published in the county, then in one published in the adjoining county, requiring him or her to answer within a specified time, not less than 40 days, nor more than 90 days.
(Code 1867, §1905; Code 1876, §2269; Code 1886, §1932; Code 1896, §1470; Code 1907, §3774; Code 1923, §7385; Code 1940, T. 16, §21; Code 1975, §43-3-36.)
In case of the death of any distributee or heir alleged to have received advancements, his or her legal representatives or heirs at law shall be required to report or answer in the same manner as set forth in Section 43-8-51; and if they are residents of this state, notice must be given by citation, and if nonresidents, by publication, as provided for in cases embraced in Section 43-8-51. If any of the heirs at law of such deceased distributee or heir are minors or persons of unsound mind, the probate court must appoint a suitable guardian ad litem for them, who shall deny the allegation contained in such application, and demand proof thereof.
(Code 1867, §1906; Code 1876, §2270; Code 1886, §1933; Code 1896, §1471; Code 1907, §3775; Code 1923, §7386; Code 1940, T. 16, §22; Code 1975, §43-3-37.)
Upon the rendition of the report or answer of the distributee or heir alleged to have received an advancement, or of his or her legal representatives or heirs, if deceased, if the executor or administrator, or any of the parties interested in such estate are not satisfied with the report or answer, on the ground that the same does not set forth all the property received or advanced, or does not set forth the true value of the property at the time it was received or advanced, or is not satisfied that the report or answer is true, then, in either case, such party may file objections thereto, stating the grounds of the objections, and the judge of probate must set a day, at such time as he or she may think proper, for hearing and determining, according to the evidence, as to the amount of property advanced, the time when advanced, and its value when received. He or she must give all the parties interested notice of such objections, and of the time set for hearing the same, by citation, if residents of this state, or if nonresidents, by publication in some newspaper published in the county, or if no paper is published in the county, then in one published in an adjoining county, once a week for three successive weeks.
(Code 1867, §1907; Code 1876, §2271; Code 1886, §1934; Code 1896, §1472; Code 1907, §3776; Code 1923, §7387; Code 1940, T. 16, §23; Code 1975, §43-3-38.)
In case any distributee or heir, or the legal representatives of heirs at law of any distributee or heir alleged to have received an advancement, and on whom a citation has been personally served as above provided, fail or neglect to return a report, as required, or fail to answer such application, denying that he or she has received any advancement, such failure or neglect to report or answer shall be considered by the probate court as prima facie evidence that such person has received his or her full proportionate part of such estate. In case any nonresident against whom publication has been made fails or neglects to return a report as required, or to answer such application, denying that he or she has received any advancement, the court may proceed to take evidence ex parte as to the matters alleged in such application.
(Code 1867, §1908; Code 1876, §2272; Code 1886, §1935; Code 1896, §1473; Code 1907, §3777; Code 1923, §7388; Code 1940, T. 16, §24; Code 1975, §43-3-39.)
A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor’s issue.
(Acts 1982, No. 82-399, §2-111.)
No person is disqualified to take as an heir because he or she or a person through whom he or she claims is or has been an alien.
(Acts 1982, No. 82-399, §2-112.)
The estates of dower and curtesy are abolished.
(Acts 1982, No. 82-399, §2-113.)
A person who is related to the decedent through two lines of relationship is entitled to only a single share, based on the relationship which would entitle him or her to the larger share.
(Acts 1982, No. 82-399, §2-114.)
(a) If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of the estate. The elective share shall be the lesser of:
(1) All of the estate of the deceased reduced by the value of the surviving spouse’s separate estate; or
(2) One-third of the estate of the deceased.
(b) The “separate estate” of the surviving spouse shall include:
(1) All property which immediately after the death of the decedent is owned by the spouse outright or in fee simple absolute;
(2) All legal and equitable interests in property the possession or enjoyment of which are acquired only by surviving the decedent; and
(3) All income and other beneficial interests:
a. Under a trust;
b. In proceeds of insurance on the life of the decedent; and
c. Under any broad-based nondiscriminatory pension, profit-sharing, stock bonus, deferred compensation, disability, death benefit or other such plan established by an employer.
(c) If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent’s domicile at death.
(Acts 1982, No. 82-399, §2-201.)
The right of election of the surviving spouse may be exercised only by the surviving spouse during his or her lifetime. If a guardian, custodian, curator, or conservator has been appointed for the surviving spouse, the right of election may be exercised only by order of the court upon petition of the fiduciary or upon the court’s own initiative, after finding that exercise is necessary to provide adequate support for the surviving spouse during his or her probable life expectancy.
(Acts 1982, No. 82-399, §2-203.)
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or a waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of “all rights” (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other at death and a renunciation by each of all benefits which would otherwise pass to him or her from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
(Acts 1982, No. 82-399, §2-204.)
(a) The surviving spouse may elect to take his or her elective share by filing with the court and mailing or delivering to the personal representative, if any, a petition for the elective share within six months after the date of death, or within six months after the probate of the decedent’s will, whichever limitation last expires.
The court may extend the time for election for cause shown by the surviving spouse before the time for election has expired.
(b) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate whose interests will be adversely affected by the taking of the elective share.
(c) The surviving spouse may withdraw his or her demand for an elective share at any time before entry of a final determination by the court.
(d) After notice and hearing, the court shall determine the amount of the elective share and shall order its satisfaction from the assets of the estate. If it appears that a fund or property included in the estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he or she would have been if relief had been secured against all persons subject to contribution.
(e) The order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.
(Acts 1982, No. 82-399, §2-205.)
A surviving spouse is entitled to homestead allowance, exempt property, and family allowance, whether or not he elects to take an elective share.
(Acts 1982, No. 82-399, §2-206.)
(a) In the proceeding for an elective share, values included in the estate which pass or have passed to the surviving spouse, or which would have passed to the surviving spouse but were renounced, are applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the estate. For purposes of this subsection, the electing spouse’s beneficial interest in any life estate or in any trust shall be computed as if worth one-half of the total value of the property subject to the life estate, or of the trust estate, unless higher or lower values for these interests are established by proof; provided, however, that, to the extent that the electing spouse’s beneficial interest is a life estate or is an interest in a trust and is coupled with a general power of appointment (whether exercisable by deed or by will or by either), the beneficial interest shall be computed as being equal to two-thirds of the total value of the property subject to the life estate, or of the trust estate, with respect to which the general power of appointment exists.
(b) Remaining property of the estate is so applied that liability for the balance of the elective share of the surviving spouse is equitably apportioned among the recipients of the estate in proportion to the value of their interests therein.
(Acts 1982, No. 82-399, §2-207.)
(a) Except as provided in subsection (b) of this section and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:
(1) Property not disposed of by the will;
(2) Residuary devises;
(3) General devises;
(4) Specific devises.
For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the value of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
(Acts 1982, No. 82-399, §2-208.)
(a) If a testator fails to provide by will for his or her surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he or she would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
(b) In satisfying a share provided by this section, the devises made by the will abate as provided in Section 43-8-76.
(Acts 1982, No. 82-399, §2-301.)
(a) If a testator fails to provide in his or her will for any of his or her children born or adopted after the execution of his or her will, the omitted child receives a share in the estate equal in value to that which he or she would have received if the testator had died intestate unless:
(1) It appears from the will that the omission was intentional;
(2) When the will was executed the testator had one or more children and devised substantially all his or her estate to the other parent of the omitted child; or
(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision be reasonably proven.
(b) If at the time of execution of the will the testator fails to provide in his or her will for a living child solely because he or she believes the child to be dead, the child receives a share in the estate equal in value to that which he or she would have received if the testator had died intestate.
(c) In satisfying a share provided by this section, the devisees made by the will abate as provided in Section 43-8-76.
(Acts 1982, No. 82-399, §2-302.)
(a) A surviving spouse of a decedent who was domiciled in this state is entitled to a homestead allowance of fifteen thousand dollars ($15,000). If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to fifteen thousand dollars ($15,000) divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent unless otherwise provided in the will, by intestate succession or by way of elective share.
(b) The value of any constitutional right of homestead in the family home received by a surviving spouse or child shall be charged against that spouse or child’s homestead allowance to the extent that the family home is part of the decedent’s estate or would have been but for the homestead provision of the Constitution.
(Acts 1982, No. 82-399, §2-401; Act 2015-484, §1.)
If the decedent was domiciled in this state at the time of death the surviving spouse is entitled to receive, in addition to the homestead allowance, property of a value not exceeding seven thousand five hundred dollars ($7,500) in excess of any security interests therein in household furniture, automobiles, furnishings, appliances, and personal effects. If there is no surviving spouse, children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than seven thousand five hundred dollars ($7,500), or if there is not seven thousand five hundred dollars ($7,500) worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the seven thousand five hundred dollars ($7,500) value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except that the right to any assets to make up a deficiency of exempt property shall abate as necessary to permit prior payment of homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share.
(Acts 1982, No. 82-399, §2-402; Act 2015-484, §1.)
In addition to the right to homestead allowance and exempt property, if the decedent was domiciled in this state, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by him or her are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody; but in case any minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his or her guardian or other person having his or her care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims but does not have priority over the homestead allowance.
The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided in the will, by intestate succession, or by way of elective share. The death of any person entitled to family allowance terminates his or her right to allowances not yet paid.
(Acts 1982, No. 82-399, §2-403.)
If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to homestead and exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. The personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. He or she may determine the family allowance in a lump sum not exceeding fifteen thousand dollars ($15,000) or in periodic installments not exceeding $500.00 per month, and may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the personal representative determined or could have determined.
(Acts 1982, No. 82-399, §2-404; Act 2015-484, §1.)
The spouse may retain possession of the dwelling house where the surviving spouse resided with the decedent, with the offices and buildings appurtenant thereto and the plantation connected therewith until homestead is assigned, free from the payment of rent. The obligation to pay rent, if any, on the dwelling shall be an obligation of the decedent’s estate.
(Code 1852, §1359; Code 1867, §1630; Code 1876, §2238; Code 1886, §1900; Code 1896, §1515; Code 1907, §3824; Code 1923, §7437; Code 1940, T. 34, §50; Code 1975, §43-5-40; Acts 1984, No. 84-258, p. 426, §1.)
(a) Whenever an employee of another shall die intestate and there shall be due him or her any sum as wages or salary the debtor may discharge himself or herself from liability therefor by paying such amount to the surviving spouse of the deceased employee or, if there is no surviving spouse to the person having the legal custody and control of his or her minor child or children, or either as the case may be, who may commence an action for and recover the same as part of the property or allowance exempted to them.
(b) Any sums paid in accordance with subsection (a) shall be considered as part of the exempt property, as defined in Section 43-8-111; and, if the sums exceed seven thousand five hundred dollars ($7,500) the excess shall be considered part of the family allowance, as defined in Section 43-8-112.
(Acts 1984, 1st Ex. Sess., No. 84-788, p. 179; Act 2015-484, §1.)
On July 1, 2017, and at the end of each 3-year period thereafter, the State Treasurer shall adjust each dollar amount in this article or, for each adjustment after July 1, 2017, each adjusted amount, by an amount determined by the State Treasurer to reflect the cumulative change in the consumer price index, as published by the United States Department of Labor, or, if that index is no longer published, a generally available comparable index, for the 3-year period ending on the December 31 preceding the adjustment date and rounded to the nearest twenty-five dollars ($25.00). The State Treasurer shall publish the adjusted amounts. The adjusted amounts apply to exemptions claimed on or after April 1 following the adjustment date.
(Act 2015-484, §3.)
Any person 18 or more years of age who is of sound mind may make a will.
(Acts 1982, No. 82-399, §2-501.)
Except as provided within Section 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 or her 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.
(Acts 1982, No. 82-399, §2-502.)
(a) Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer’s certificate, under official seal, in substantially the following form:
“I, _____, the testator, sign my name to this instrument this ______ day of ___, 20, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.”
_______________ Testator
“We, _____, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his/her last will and that he/she signs it willingly (or willingly directs another to sign for him or her), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator’s signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.”
_______________ Witness _______________ WitnessState of ________ County of ______
Subscribed, sworn to and acknowledged before me by _____, the testator and subscribed and sworn to before me by _____, and _____, witnesses, this _____ day of ___, 20.
SEAL(Signed) ___________ __________________ (Official Capacity of Officer)
(b) An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will in substantially the following form: “STATE OF ___________ COUNTY OF _________
We, ______, ______, and _____, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his/her last will and that he/she had signed willingly (or willingly directed another to sign for him or her), and that he/she executed it as his/her free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his/her knowledge the testator was at that time 18 years of age or older, of sound mind and under no constraint or undue influence.”
_____________________________ Testator _____________________________ Witness _____________________________ Witness
Subscribed, sworn to and acknowledged before me by _____, the testator, and subscribed and sworn to before me by _____, and _____, witnesses, this _____ day of , 20.
SEAL(Signed) ___________ __________________ (Official capacity of officer)
(c) If the will is self-proved, as provided in this section, compliance with signature requirements for execution is conclusively presumed, other requirements of execution are presumed subject to rebuttal without the testimony of any witness, and the will shall be probated without further proof, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
(Acts 1981, 3rd Ex. Sess., No. 81-1209; Code 1975, §43-1-30.1; Acts 1984, No. 84-258, p. 426, §1.)
An attested will may be made self-proved through compliance with Section 43-8-132 or as otherwise provided by law.
(Acts 1982, No. 82-399, §2-504.)
(a) Any person generally competent to be a witness may act as a witness to a will.
(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.
(Acts 1982, No. 82-399, §2-505.)
A written will is valid if executed in compliance with Section 43-8-131 or if its execution complies 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.
(Acts 1982, No. 82-399, §2-506.)
(a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his or her presence by his or her consent and direction. If the physical act is by someone other than the testator, consent, and direction of the testator must be proved by at least two witnesses.
(Acts 1982, No. 82-399, §2-507.)
If after executing a will the testator is divorced or his or her marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse within the meaning of Section 43-8-252(b). A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.
(Acts 1982, No. 82-399, §2-508.)
(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 43-8-136, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from testator’s contemporary or subsequent declarations in writing, signed by the testator and attested as prescribed in Section 43-8-131, that he or she intended the first will to take effect as executed.
(b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
(Acts 1982, No. 82-399, §2-509.)
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
(Acts 1982, No. 82-399, §2-510.)
A devise or bequest, the validity of which is determinable by the law of this state, may be made by a will to the trustee of a trust established or to be established by the testator and some other person or by some other person (including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts) if the trust is identified in the testator’s will and its terms are set forth in a written instrument (other than a will) executed before or concurrently with the execution of the testator’s will or in the valid last will of a person who has predeceased the testator (regardless of the existence, size, or character of the corpus of the trust). The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or after the death of the testator. Unless the testator’s will provides otherwise, the property so devised (1) is not deemed to be held under a testamentary trust of the testator but becomes a part of the trust to which it is given and (2) shall be administered and disposed of in accordance with the provisions of the instrument or will setting forth the terms of the trust, including any amendments thereto made before the death of the testator (regardless of whether made before or after the execution of the testator’s will), and, if the testator’s will so provides, including any amendments to the trust made after the death of a testator. A revocation or termination of the trust before the death of the testator causes the devise to lapse.
(Acts 1982, No. 82-399, §2-511.)
A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event.
(Acts 1982, No. 82-399, §2-512.)
Upon the death of a testator, any executor, devisee, or legatee named in the will, or any person interested in the estate, or who has custody of such will may have the will proved before the proper probate court.
(Code 1852, §1620; Code 1867, §1939; Code 1876, §2303; Code 1886, §1975; Code 1896, §4272; Code 1907, §6181; Code 1923, §10607; Code 1940, T. 61, §33; Code 1975, §43-1-36.)
Wills shall not be effective unless filed for probate within five years from the date of the death of the testator. If the testator was not an inhabitant of this state at the time of his or her death, the will may be admitted to probate in this state pursuant to Section 43-8-175, provided the will was admitted to probate, within five years from the date of death, in the state, territory or country where the testator resided at the time of death; provided further, that the probate in the state of the will of an inhabitant of another state, territory, or country shall not be effective against persons purchasing from the heirs of such testator if such purchase was made more than five years after the death of the testator and prior to February 24, 1959.
(Acts 1945, No. 196, p. 322; Acts 1949, No. 336, p. 501; Acts 1959, No. 587, p. 1475, §1; Code 1975, §43-1-37.)
Wills must be proved in the several probate courts as follows:
(1) When the testator, at the time of his or her death, was an inhabitant of the county, in the probate court of such county.
(2) When the testator, not being an inhabitant of the state, dies in the county, leaving assets therein, in the probate court of such county.
(3) When the testator, not being an inhabitant of the state, dies out of the county, leaving assets therein, in the probate of the county in which such assets, or any part thereof, are.
(4) When the testator, not being an inhabitant of the state, dies, not leaving assets therein, and assets thereafter come into any county, in the probate court of any county into which such assets are brought.
(5) In the probate court of the county designated by testator in the will if the testator owns property in such county at the time of his or her death.
(Code 1852, §1621; Code 1867, §1940; Code 1876, §2304; Code 1886, §1976; Code 1896, §4273; Code 1907, §6182; Code 1923, §10609; Code 1940, T. 61, §35; Code 1975, §43-1-38.)
If the witnesses attesting the execution of any will are competent at the time of their attestation, their subsequent incompetency, from whatever cause it may arise, must not prevent the probate of such will, if otherwise satisfactorily proved.
(Code 1852, §1612; Code 1867, §1931; Code 1876, §2295; Code 1886, §1967; Code 1896, §4264; Code 1907, §6173; Code 1923, §10599; Code 1940, T. 61, §25; Code 1975, §43-1-39.)
Whenever an application is made to prove a will in this state, at least 10 days’ notice must be given to the surviving spouse and next of kin, or either of them, residing and being within the state, before such application is heard.
(Code 1852, §1632; Code 1867, §1951; Code 1876, §2315; Code 1886, §1987; Code 1896, §4284; Code 1907, §6193; Code 1923, §10622; Code 1940, T. 61, §48, Code 1975, §43-1-41.)
If any of the next of kin are minors, such notice may be served as provided by the Alabama Rules of Civil Procedure; and in addition to the service above provided for minors, the court must appoint a guardian ad litem who is disinterested and who shall be an attorney-at-law and who does not represent any party having an interest adverse to such minors; and notice shall issue to such guardian ad litem. Such guardian shall accept service and agree to represent the minors in the proof and probate of the will, and if he or she fail to accept service and agree to appear for the minors within 10 days after service, the court appoint another guardian ad litem, upon whom notice must be served, and he or she must agree to accept service and represent the minors as is provided in the first instance, and the will must not be probated until a guardian ad litem has agreed to accept the appointment and to represent the minors in the proof and probate of the will, which acceptance and agreement must be in writing and filed with the papers in the cause, and notice must be given to such guardian ad litem in all proceedings to contest the probate of the will.
(Code 1896, §4285; Code 1907, §6194; Code 1923, §10623; Code 1940, T. 61, §49; Code 1975, §43-1-42.)
If either the surviving spouse or next of kin reside and are without the state, notice of such application must be given by publication once a week for three successive weeks in a newspaper published in the county in which such application is made, and if no paper is published therein, by posting of the same at the courthouse three weeks before such application is heard. In lieu of the notice herein provided, notice may be had on such persons as provided by the Alabama Rules of Civil Procedure.
(Code 1852, §1633; Code 1867, §1952; Code 1876, §2316; Code 1886, §1988; Code 1896, §4286; Code 1907, §6195; Code 1923, §10624; Code 1940, T. 61, §50; Code 1975, §43-1-43.)
(a) Wills offered for probate, except nuncupative wills, must be proved by one or more of the subscribing witnesses, or if they be dead, insane or out of the state or have become incompetent since the attestation, then by the proof of the handwriting of the testator, and that of at least one of the witnesses to the will. Where no contest is filed, the testimony of only one attesting witness is sufficient.
(b) If none of the subscribing witnesses to such will are produced, their insanity, death, subsequent incompetency, or absence from the state must be satisfactorily shown before proof of the handwriting of the testator, or any of the subscribing witnesses, can be received; in addition to the methods already provided, the will of a person serving in the armed forces of the United States, executed while such person is in the actual service of the United States, or the will of a seaman, executed while such seaman was at sea, shall be admitted to probate when either or all of the subscribing witnesses is out of the state at the time said will is offered for probate, or when the places of address of such witness or witnesses are unknown upon the oath of at least three credible witnesses, that the signature to said will is in the handwriting of the person whose will it purports to be. Such will so proven shall be effective to devise real property as well as to bequeath personal property of all kinds.
(Code 1852, §§1624, 1625; Code 1867, §§1943, 1944; Code 1876, §§2307, 2308; Code 1886, §§1979, 1980; Code 1896, §§4276, 4277; Code 1907, §§6185, 6186; Code 1923, §§10613, 10614; Code 1940, T. 61, §§39, 40; Acts 1945, No. 78, p. 75; Code 1975, §43-1-44.)
When the subscribing witnesses, or any of them, reside out of the state, or are physically unable or in any case in which depositions are authorized to be taken in circuit court, the judge of probate may issue a commission to take the testimony of such witnesses in proof of such will.
(Code 1852, §1626; Code 1867, §1945; Code 1876, §2309; Code 1886, §1981; Code 1896, §4278; Code 1907, §6187; Code 1923, §10615; Code 1940, T. 61, §41; Code 1975, §43-1-45.)
If it appears, on the proof taken before the judge of probate, that the will was duly executed, the testimony of the witnesses must be reduced to writing by him or her, signed by the witnesses and, with the will, immediately recorded in a book provided and kept for that purpose.
(Code 1852, §1627; Code 1867, §1946; Code 1876, §2310; Code 1886, §1982; Code 1896, §4279; Code 1907, §6188; Code 1923, §10616; Code 1940, T. 61, §42; Code 1975, §43-1-46.)
Every will so proved must have a certificate endorsed thereon, setting forth in substance that such will had been duly proved and recorded, with the proof, specifying also the date of the probate, the book in and page or pages on which it is recorded. Such endorsement must be signed by such judge of probate.
(Code 1852, §1628; Code 1867, §1947; Code 1876, §2311; Code 1886, §1983; Code 1896, §4280; Code 1907, §6189; Code 1923, §10617; Code 1940, T. 61, §43; Code 1975, §43-1-47.)
Every will, so proved or endorsed, may be read in evidence in any court of the state, without further proof thereof; and the record of such will and proof or a transcript thereof, certified by the judge of probate, must be received as evidence to the same extent as if the original will was produced, and the same proof made.
(Code 1852, §1629; Code 1867, §1948; Code 1876, §2312; Code 1886, §1984; Code 1896, §4281; Code 1907, §6190; Code 1923, §10618; Code 1940, T. 61, §44; Code 1975, §43-1-48.)
Any will which is not propounded for probate in this state within 12 months from the date of the death of the testator shall be inoperative and void as to bona fide purchasers, mortgagees, or pledgees (and those claiming under them) of property or any interest therein from the executors, administrators, heirs at law, devisees, distributees of the estate of such deceased or anyone claiming under them, provided such purchasers acquire their interest in such property prior to the time such will is propounded for probate in this state and without actual notice of such will.
The provisions of this section shall not affect the right of any beneficiary entitled thereto under any such will to follow the proceeds from the sale of any such property in lieu of such property in the hands of the executors, administrators, heirs at law, or distributees of such estate.
(Acts 1939, No. 42, p. 45; Code 1940, T. 61, §51; Code 1975, §43-1-49.)
When any will is filed with the probate judge or in the probate court for the purpose of probating the same, and it becomes necessary to withdraw said will before it is probated, the probate judge shall have the same recorded in the book in which are recorded probated wills, but shall mark or have written on the page or pages of the record where recorded the following: “Recorded Before Being Probated.” The probate judge shall not allow any will filed with him or her or his or her office for the purpose of probating to be removed from such office by anyone until it is so recorded, and in the event such will is lost, destroyed, or mutilated, the record of such will and certified transcripts therefrom shall be given the same force and effect as could be given the original.
(Code 1923, §10619; Code 1940, T. 61, §45; Code 1975, §43-1-50.)
Whenever any will has been proved and recorded for six months in any county of this state, as required by this article, and such will is required to be proved out of this state, the judge of probate may, on the application of the executor, duly sworn to, allow him or her to withdraw the will.
(Code 1852, §1631; Code 1867, §1950; Code 1876, §2314; Code 1886, §1986; Code 1896, §4283; Code 1907, §6192; Code 1923, §10621; Code 1940, T. 61, §47; Code 1975, §43-1-51.)
When the testator was not, at the time of his or her death, an inhabitant of this state, but was an inhabitant of some other state or territory of the United States of America, or of some other territory, district, or country subject to the jurisdiction of the United States of America, and his or her will has been duly proved in any other state of the United States of America, or in any territory, district, or country subject to the jurisdiction of the United States of America, it may be admitted to probate in the proper court of this state in the manner following: If the will has been admitted to probate out of the State of Alabama, but within another state of the United States of America, or within any territory, district, or country subject to the jurisdiction of the United States of America, such will, or copy of the same, and the probate thereof must be certified and authenticated as provided in 28 U.S.C.A., §1738. Upon the presentation to the probate judge of any such will, already admitted to probate out of the State of Alabama, but in another state of the United States of America, or in any territory, district, or country subject to the jurisdiction of the United States of America, authenticated as herein provided for, he or she shall, without notice or further proceedings, enter a decree admitting said will to probate, and shall record the same, together with a certificate of probate, in a record kept for that purpose. If the will has been admitted to probate elsewhere than in some other state of the United States of America, or some territory, district, or country subject to the jurisdiction of the United States of America, if such will purports or undertakes to dispose of, or if it has the effect of disposing of, any land or real estate situated within the State of Alabama, such will, in order to be valid to that end, shall be probated in all respects, including notice to the next of kin of the testator or testatrix, as wills are required to be probated in the courts of the State of Alabama, upon original proceedings to probate wills in this state, and shall be subject to be contested and controverted in the same manner as wills are subject to be contested and controverted when offered or propounded for original probate and record in the courts of this state. If the will has been admitted to probate elsewhere than in some other state of the United States of America, or some territory, district, or country subject to the jurisdiction of the United States of America, if such will purports or undertakes to dispose of, or if it has the effect of disposing of, any personal property situated within the State of Alabama, such will, in order to be valid to that end, shall be probated in all respects, including notice to the next of kin of the testator or testatrix, as wills are required to be probated in the courts of the State of Alabama, upon original proceedings to probate wills in this state, and shall be subject to be contested and controverted when offered or propounded for original probate and record in the courts of this state.
(Code 1852, §1630; Code 1867, §1949; Code 1876, §2313; Code 1886, §1985; Code 1896, §4282; Code 1907, §6191; Code 1923, §10620; Acts 1931, No. 82, p. 162; Code 1940, T. 61, §46; Acts 1945, No. 153, p. 193; Acts 1951, No. 988, p. 1663, §1; Acts 1959, 1st Ex. Sess., No. 92, p. 151; Code 1975, §43-1-52.)
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 distributee of his or her 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 issue must, on application of either party, be tried by a jury.
(Code 1852, §1634; Code 1867, §1953; Code 1876, §2317; Code 1886, §1989; Code 1896, §4287; Code 1907, §6196; Code 1923, §10625; Code 1940, T. 61, §52; Code 1975, §43-1-70.)
Upon the institution of such contest, a day must be appointed for the trial thereof, and the trial may, on good cause shown by either party, be continued to any other day; and the judge of probate must, on application of either party, issue subpoenas for witnesses to appear on the day fixed for such trial, and may resummon them to any day to which the same may be continued.
(Code 1852, §§1635, 1636, 1640; Code 1867, §§1934, 1955, 1959; Code 1876, §§2318, 2323; Code 1886, §1990; Code 1896, §4288; Code 1907, §6197; Code 1923, §10626; Code 1940, T. 61, §52; Code 1975, §43-1-71.)
(a) The jury for the trial of such contest must be drawn and summoned as provided by law.
(b) Any person summoned as a juror who shall, without legal cause or good excuse, fail to attend at the time and place required, shall be guilty of a contempt of court and may be punished by the court by a fine of not exceeding $100.00.
(Code 1852, §§1637-1639; Code 1867, §§1956-1958; Code 1876, §§2320-2322; Code 1886, §§1991, 1992; Code 1896, §§4289, 4290; Code 1907, §§6198, 6199; Acts 1909, No. 227, p. 305; Code 1923, §§10627, 10628; Code 1940, T. 61, §§54, 55; Code 1975, §43-1-72.)
If any witness, being duly summoned, fails to attend, the judge of probate shall enter up a conditional fine against him or her, not exceeding $50.00, and shall thereupon issue a notice to such witness to appear at a term of said court, not more than 30 days from the date of such notice and show cause why such fine should not be made absolute. The proceedings thereafter shall be governed by the same rules, and such witness shall be subject to the same liabilities, except as to the amount of the fine, as are provided by law in cases of defaulting witnesses in the circuit court.
(Code 1852, §1642; Code 1867, §1961; Code 1876, §2325; Code 1886, §1993; Code 1896, §4291; Code 1907, §6200; Code 1923, §10629; Code 1940, T. 61, §56; Code 1975, §43-1-73.)
For the trial of such contest, depositions of witnesses may be taken in like cases, for the same causes and in the same manner, as depositions are taken in civil actions in the circuit court. In all matters relating to the organization and impaneling of the jury, to the evidence, mode of proceeding and investigation and determination of such contest, not specially provided for by this article, the court shall proceed and be governed by the same rules and regulations, so far as applicable, as prevail in courts of law in civil cases.
(Code 1852, §§1641, 1643; Code 1867, §§1960, 1962; Code 1876, §§2324, 2326; Code 1886, §1994; Code 1896, §4292; Code 1907, §6201; Code 1923, §10630; Code 1940, T. 61, §57; Code 1975, §43-1-74.)
When the judgment of the probate court is against the validity of the will, the probate thereof must be rejected; otherwise, the will must be admitted to probate.
(Code 1852, §1647; Code 1867, §1965; Code 1876, §2329; Code 1886, §1995; Code 1896, §4293; Code 1907, §6202; Code 1923, §10631; Code 1940, T. 61, §58; Code 1975, §43-1-75.)
The costs of any contest under the provisions of this article must be paid by the party contesting if he or she fails; otherwise, it must be paid by the plaintiff or out of the estate, or in such proportion by the plaintiff or out of the estate as the court may direct; and for the costs directed to be paid by the plaintiff or defendant, execution may be issued as in other cases; and the costs directed to be paid out of the estate may be collected as other claims against an estate are collected.
(Code 1852, §§1649, 1650, 1653; Code 1867, §§1967, 1968, 1971; Code 1876, §§2331, 2332, 2335; Code 1886, §1996; Code 1896, §4294; Code 1907, §6203; Code 1923, §10632; Code 1940, T. 61, §59; Code 1975, §43-1-76.)
(a) At any time before the trial of such contest, either party may remove the same to another county by proceeding as is required in civil actions in the circuit court; and when an order for the removal of the trial of such contest is made, the judge of probate must transmit the will, subpoenas and all other papers belonging, and a transcript of all the entries of record relating thereto, to the judge of the probate court of the county to which the trial is ordered to be removed. Such judge of probate must proceed to try the case in the same manner as prescribed for the judge of probate of the county from which it has been removed.
(b) If the judgment is rendered in the probate court to which it has been removed, and no appeal is taken within 30 days thereafter, such judgment must be certified by the judge of such probate court, and the will and other papers be returned to the probate court from which the trial was removed; and the will must be probated or rejected in such probate court as such judgment may be for or against the validity of the will.
(c) If, on the removal of the trial, the costs are directed to be paid out of the estate, a bill of costs must be made out by the judge of probate trying the same and certified to the judge of probate of the county from which the trial was removed; and such bill of costs may be taxed by motion in the court in which the trial was had, and the same may be recertified to such judge of probate.
(Code 1852, §§1644, 1651, 1652; Code 1867, §§1963, 1964, 1966, 1969, 1970; Code 1876, §§2327, 2328, 2330, 2333, 2334; Code 1886, §§1997-1999; Code 1896, §§4295-4297; Code 1907, §§6204-6206; Code 1923, §§10633-10635; Code 1940, T. 61, §§60-62; Code 1975, §43-1-77.)
Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made, and must certify all papers and documents pertaining to the contest to the clerk of the circuit court, and the case shall be docketed by the clerk of the circuit court and a special session of said court may be called for the trial of said contest or, said contest may be tried by said circuit court at any special or regular session of said court. The issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court. An appeal to the supreme court may be taken from the judgment of the circuit court on such contest within 42 days after the entry of such judgment. After a final determination of the contest, the clerk of the circuit court shall certify the transcript of all judgments of the circuit court in such proceedings, together with all of the papers and documents theretofore certified to the circuit court by the probate court, back to the probate court from which they were first certified to the circuit court, and thereafter shall be recorded in the probate court as all other contested wills are recorded in the probate court.
(Code 1923, §10636; Code 1940, T. 61, §63; Acts 1947, No. 712, p. 552; Code 1975, §43-1-78.)
Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six months after the admission of such will to probate in this state, contest the validity of the same by filing a complaint in the circuit court in the county in which such will was probated.
(Code 1852, §1654; Code 1867, §1972; Code 1876, §2336; Code 1886, §2000; Code 1896, §4298; Code 1907, §6207; Code 1923, §10637; Acts 1931, No. 733, p. 844; Code 1940, T. 61, §64; Code 1975, §43-1-79.)
In the event a contest of the probate of a will is instituted in the circuit court, as is or may be authorized by law, all parties interested in the probate of the will, as devisees, legatees or otherwise, as well as those interested in the testator if he or she had died intestate, as heirs, distributees, or next of kin, shall be made parties to the contest; and if there be minors or persons of unsound mind interested in the estate or in the probate of the will, they shall be represented by their legal guardian, if such they have; if they have no such guardian, the court shall appoint an attorney-at-law as guardian ad litem to represent their interest in the contest, and the final judgment in such contest proceedings shall be conclusive as to all matters which were litigated or could have been litigated in such contest; and no further proceedings shall ever be entertained in any courts of this state to probate or contest the probate of such will.
(Code 1923, §10638; Code 1940, T. 61, §65; Code 1975, §43-1-80.)
After the expiration of such six months, the validity of the 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 from 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 is provided for in Sections 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.
(Code 1852, §1656; Code 1867, §1974; Code 1876, §2338; Code 1886, §2002; Code 1896, §4299; Code 1907, §6208; Code 1923, §10639; Acts 1931, No. 731, p. 843; Code 1940, T. 61, §66; Code 1975, §43-1-81.)
The circuit court may, in such case, direct an issue to be tried by a jury, and on the trial before the jury, or hearing before the circuit judge, the testimony of the witnesses reduced to writing by the judge of probate, according to Section 43-8-169, is evidence to be considered by the judge or jury.
(Code 1852, §1655; Code 1867, §1973; Code 1876, §2337; Code 1886, §2001; Code 1896, §4300; Code 1907, §6209; Code 1923, §10640; Code 1940, T. 61, §67; Code 1975, §43-1-82.)
(a) This division applies to both of the following:
(1) Wills filed for probate on or after January 1, 2023, and the removal to circuit court of the administration of a decedent’s estate when the administration commenced on or after January 1, 2023.
(2) Any probate proceeding, including a will contest or the removal of the administration of a decedent’s estate, regardless of when filed, which was before a circuit or appeals court as of April 14, 2022, and which was subject to an order issued by a probate or circuit court purporting to transfer or remove the case to circuit court or purporting to accept the case into circuit court.
(b) Sections 12-11-41, 12-11-41.1, 43-8-190, 43-8-197, 43-8-198, 43-8-199, 43-8-200, and 43-8-201, shall not apply to, and shall not deprive a circuit court of jurisdiction of probate proceedings pursuant to the enumerated sections, in either of the following:
(1) Wills filed for probate on or after January 1, 2023, or the removal of the administration of a decedent’s estate, when the administration was commenced on or after January 1, 2023.
(2) Any probate proceeding, including a will contest or the removal of the administration of a decedent’s estate, regardless of when filed, which was before a circuit or appeals court as of April 14, 2022, and which was subject to an order issued by a probate court or circuit court purporting to transfer or remove the case to circuit court or purporting to accept the case into circuit court.
(c) If any provision of this division conflicts with any provision of Chapter 13 of Title 12; Division 3, Article 7, Chapter 8 of Title 43; or any other provision of law, the provision of this division prevails.
(Act 2022-427, §1; Act 2023-289, §1.)
In addition to the rules of evidence in the courts of general jurisdiction, the following rules relating to a determination of death and status apply:
(1) Death occurs when an individual is determined to be dead under the Alabama Determination of Death Act, Section 22-31-1, et seq.
(2) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent.
(3) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status and of the dates, circumstances, and places disclosed by the record or report.
(4) In the absence of prima facie evidence of death under subdivision (2) or (3), the fact of death may be established by clear and convincing evidence, including circumstantial evidence.
(5) An individual whose death is not established under the preceding subdivisions who is absent for a continuous period of five years, during which the individual has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead. The individual’s death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
(Act 2022-427, §1.)
Unless the context otherwise requires, in this division, a proceeding includes an action at law and a suit in equity.
(Act 2022-427, §1.)
To the full extent permitted by the Constitution of Alabama of 2022 both of the following apply:
(1) The probate court has jurisdiction over all matters set forth in Section 12-13-1.
(2) The probate court where a will is offered for probate has original and general jurisdiction over the contest of the validity of the will in accordance with Section 43-8-215, unless the proceeding has been removed to the circuit court under Section 43-8-216 and is then pending in the circuit court, in which case jurisdiction will lie with the circuit court until the proceeding is remanded in accordance with Section 43-8-216.
(Act 2022-427, §1; Act 2023-289, §1.)
(a) Where a proceeding under this division could be maintained in more than one place in this state, the probate court in which the proceeding is first commenced has the exclusive right to proceed.
(b) If proceedings concerning the same estate are commenced in more than one probate court of this state, the probate court in which the proceeding was first commenced shall continue to hear the matter, and the other courts shall hold the matter in abeyance until the question of venue is decided; and if the ruling probate court determines that venue is properly in another court, it shall transfer the proceeding to the other probate court.
(c) If a probate court finds that in the interest of justice a proceeding or a file should be located in another probate court of this state, the court making the finding may transfer the proceeding or file to the other probate court.
(Act 2022-427, §1.)
(a) A will, before the probate thereof or at any time within 180 days after the admission of such will to probate, may be contested by any interested person by filing in the court where it is offered for probate, or if the proceedings in that court have been removed to the circuit court in accordance with Section 43-8-216 and is then pending in the circuit court, then in the circuit court to which the proceeding has been removed, 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 who made or is making the application for the probate of the will, as plaintiff, and the person contesting the validity of the will, as defendant; and the issue, on application of either party, must be tried by a jury.
(b) In the event of a contest of the probate of a will, all interested persons shall be made parties to the contest; the contest proceedings shall be conclusive as to all matters that were litigated or could have been litigated in such contest; and no further proceedings shall ever be entertained in any courts of this state to probate or contest the probate of the will.
(c) After the expiration of the 180-day period after the admission of the will to probate, the validity of the will can only be contested by infants and persons of unsound mind who had no legal conservator at the time the will was admitted to probate, or who were not represented by a guardian ad litem, who are allowed one year after the appointment of a conservator, or, if none be appointed, one year from 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 a contest of such will instituted and prosecuted to final judgment.
(d) Except for proceedings pending in a probate court in a county where the probate court or judge exercises equity jurisdiction concurrent with that of the circuit court by virtue of a provision of the Constitution of Alabama of 2022, specific to the county, a local act, or a statute specific to the county, then, pursuant to Section 43-8-216, any party to the will contest may remove the will contest from the probate court to the circuit court, provided the removal occurs no later than 42 days before the first setting of the contest for trial unless leave of the probate court is obtained based on a showing of good cause.
(Act 2022-427, §1; Act 2023-289, §1.)
AMENDED BY ACT 2026-226, EFFECTIVE OCTOBER 1, 2026. SEE ACT FOR REVISED LANGUAGE.
(a) Except for a proceeding pending in a probate court in a county where the probate court or judge exercises equity jurisdiction concurrent with that of the circuit court by virtue of a provision of the Constitution of Alabama of 2022, specific to such county, a local act, or a statute specific to such county, a proceeding in a probate court pertaining to a will contest or an administration of a decedent’s estate may be removed by an interested person to the circuit court for the county where the proceeding in probate court is pending; provided, however: (i) no removal of a will contest can occur unless Section 43-8-215 is complied with; and (ii) a removal of the administration of a decedent’s estate may not be made prior to the issuance of letters testamentary, letters of administration, or letters of administration with the will annexed or after the probate court has taken steps toward a final settlement.
(b) To remove a proceeding from the probate court to the circuit court, the removing party shall file in the circuit court to which the proceeding is being removed, a notice of removal that contains all of the following:
(1) A description of the nature of the proceedings being removed.
(2) If the proceeding is a will contest under this division, the name of the person who has petitioned to admit the will to probate, who will be the plaintiff in the removed proceeding, and the person contesting the validity of the will, who will be the defendant in the removed proceeding.
(3) Whether jury trial is demanded.
(4) The removing party’s interest in the proceeding being removed.
(5) The name of all interested persons to the proceeding being removed to which the removing party is delivering the notice of removal.
(c) Once the removing party has filed the notice of removal with the clerk of the circuit court, the proceeding shall be removed to the circuit court. Following the removal to the circuit court, the removing party shall file a copy of the notice of removal with the clerk of the probate court and shall send a copy of the notice of removal to all interested persons listed therein. Upon receiving a copy of the notice of removal, the probate court shall take no further action unless and until the removed proceeding is remanded, except to deliver a copy of the record in the probate court to the clerk of the circuit court. The circuit court shall have jurisdiction of a removed proceeding upon filing of the notice of removal with the circuit clerk. Neither the omission nor incorrect statement of any information required to be included in the notice of removal, nor the failure of the probate court to deliver a copy of the record of proceedings in that court, shall deprive the circuit court of jurisdiction to hear and decide the removed proceeding.
(d) If a necessary party to the proceedings has not received notice of the proceeding as required by law before the notice of removal is filed, notice of the proceeding must be issued by the circuit court to the necessary party as provided in the Alabama Rules of Civil Procedure or as otherwise prescribed by law.
(e) The circuit court may remand the removed proceeding under this section to the probate court if the circuit court finds any of the following:
(1) The removal was sought for the purpose of improper delay.
(2) The removal did not comply with applicable law.
(3) Judgment on all contested matters pending before the circuit court has become final and the time for an appeal has expired without an appeal being filed or, if an appeal was filed, after the final adjudication of the appeal.
(4) All interested parties or their representatives have requested the removed proceeding be remanded to probate court.
(f) If the circuit court finds that a lawyer or party vexatiously or for improper purposes removed a proceeding, then the court may tax the lawyer or party with the costs of the proceeding. In doing so, the circuit court may assess the full amount or any portion of the costs against any offending lawyer or party, or both, and among them, as the court determines just. When granting an award of costs and lawyer fees, the court shall specifically state the reasons for the award and shall consider the factors in Section 12-19-273, among others, in determining whether to assess lawyer fees and costs and the amount to be assessed.
(g) Costs of an action that may be assessed under subsection (f) include reasonable compensation for and expenses incurred by a lawyer, guardian ad litem, or party, including the cost of experts to testify in or advise regarding the proceeding. Costs taxed under this subsection shall be limited to those incurred by the parties opposing an improperly removed proceeding or incurred as a result of the improperly removed proceeding.
(h) Upon entry of an order taxing costs under subsection (f), the clerk of the circuit court shall issue an itemized bill of all costs and expenses taxed against each person, which itemized statements of costs and expenses shall have the full force and effect of a judgment. The provisions of this subsection are cumulative.
(i) Following remand by the circuit court, the clerk of the circuit court shall deliver a copy of the order of remand and the record of all proceedings in the circuit court to the clerk of the probate court to be filed with the records of the proceeding in the probate court, and the probate court shall proceed with the proceeding in accordance with the circuit court’s order.
(j) In any proceeding removed from a probate court, the circuit court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the probate court or otherwise.
(k) Neither remand nor anything else shall prevent the subsequent removal of a proceeding to the circuit court under this section.
(Act 2022-427, §1.)
Except as otherwise specifically provided in this division or by rule, every document filed with the probate court under this division, including applications, petitions, and demands for notice, shall be deemed to include an oath, affirmation, or statement to the effect that representations contained in the document are true as far as the person executing or filing the document knows or is informed, and that penalties for perjury may follow deliberate falsification therein.
(Act 2022-427, §1.)
A devisee who does not survive the testator by five days is treated as if he or she predeceased the testator, unless the will of decedent contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.
(Acts. 1982, No. 82-399, §2-601.)
The meaning and legal effect of a disposition in a will shall be determined by the local law of a particular state selected by the testator in his or her instrument unless the application of that law is contrary to the provisions relating to the elective share described in Sections 43-8-70 through 43-8-75, the provisions relating to exempt property and allowances described in Sections 43-8-110 through 43-8-113, or any other public policy of this state otherwise applicable to the disposition.
(Acts 1982, No. 82-399, §2-602.)
The intention of a testator as expressed in his or her will controls the legal effect of his or her dispositions. The rules of construction expressed in the succeeding sections of this article apply unless a contrary intention is indicated by the will.
(Acts 1982, No. 82-399, §2-603.)
A will is construed to pass all property which the testator owns at his or her death including property acquired after the execution of the will.
(Acts 1982, No. 82-399, §2-604.)
If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he or she predeceased the testator, the issue of the deceased devisee who survive the testator by five days take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he or she had survived the testator is treated as a devisee for purposes of this section whether his or her death occurred before or after the execution of the will.
(Acts 1982, No. 82-399, §2-605.)
(a) Except as provided in Section 43-8-224 if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
(b) Except as provided in Section 43-8-224 if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his or her share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.
(Acts 1982, No. 82-399, §2-606.)
(a) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to:
(1) As much of the devised securities as is a part of the estate at time of the testator’s death;
(2) Any additional or other securities of the same entity derived from the securities specifically devised and owned by the testator by reason of action initiated by the entity excluding any acquired by exercise of purchase options;
(3) Securities of another entity derived from the securities specifically devised and owned by the testator as a result of a merger, consolidation, reorganization or other similar action initiated by the entity; and
(4) Any additional securities of the entity owned by the testator as a result of a plan of reinvestment if it is a regulated investment company, which is defined in Section 851 of the Federal Internal Revenue Code of 1954 as amended.
(b) Distributions prior to death with respect to a specifically devised security not provided for in subsection (a) of this section are not part of the specific devise.
(Acts 1982, No. 82-399, §2-607.)
(a) A specific devisee has the right to the remaining specifically devised property and:
(1) Any balance of the purchase price (together with any security interest) owing from a purchaser to the testator at death by reason of sale of the property;
(2) Any amount of a condemnation award for the taking of the property unpaid at death;
(3) Any proceeds unpaid at death on fire or casualty insurance on the property; and
(4) Property owned by testator at his or her death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.
(b) If specifically devised property is sold by a guardian or curator, or if a condemnation award or insurance proceeds are paid to a guardian or curator as a result of condemnation, fire, or casualty, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the condemnation award, or the insurance proceeds. This subsection does not apply if after the sale, condemnation, or casualty, it is adjudicated that the disability of the testator has ceased and the testator survives the adjudication by one year. The right of the specific devisee under this subsection is reduced by any right he or she had under subsection (a) of this section.
(Acts 1982, No. 82-399, §2-608.)
A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
(Acts 1982, No. 82-399, §2-609.)
A general residuary clause in a will, or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
(Acts 1982, No. 82-399, §2-610.)
Half-bloods, adopted persons, and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession. However, a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father.
(Acts 1982, No. 82-399, §2-611.)
Property which a testator gave in his or her lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.
(Acts 1982, No. 82-399, §2-612.)
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after January 1, 1983, can be established only by:
(1) Provisions of a will stating material provisions of the contract;
(2) An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
(3) A writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
(Acts 1982, No. 82-399, §2-701.)
Renunciation of succession shall be through compliance with Article 11 of this chapter or as otherwise provided by law.
(Acts 1982, No. 82-399, §2-801.)
(a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, the individual is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of Sections 43-2-690 through 43-2-696.02, 43-8-40 through 43-8-49, 43-8-55 through 43-8-58, 43-8-70 through 43-8-76, 43-8-90, 43-8-91, and 43-8-110 through 43-8-113, a surviving spouse does not include:
(1) An individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they subsequently remarry;
(2) An individual who, following a decree or judgment of divorce or annulment obtained by the decedent, marries a third person; or
(3) An individual who is a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
(Acts 1982, No. 82-399, §2-802; Act 2025-431, §1.)
AMENDED BY ACT 2026-287, EFFECTIVE OCTOBER 1, 2026. SEE ACT FOR REVISED LANGUAGE.
(a) A surviving spouse, heir, or devisee who feloniously and intentionally kills the decedent is not entitled to any benefits under the will or under articles 3 through 10 of this chapter, and the estate of decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.
(b) Any joint tenant who feloniously and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his or her property and the killer has no rights by survivorship. This provision applies to joint tenancies with the right of survivorship and tenancies in common during the respective lives of the grantees with cross-contingent remainders in fee to the survivor in real and personal property, joint and multiple-party accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents.
(c) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
(d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section.
(e) A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this section. In the absence of a conviction of felonious and intentional killing the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this section.
(f) This section does not affect the rights of any person who, before rights under this section have been adjudicated, purchases from the killer for value and without notice property which the killer would have acquired except for this section, but the killer is liable for the amount of the proceeds or the value of the property. Any insurance company, bank, or other obligor making payment according to the terms of its policy or obligation is not liable by reason of this section unless prior to payment it has received at its home office or principal address written notice of a claim under this section.
(Acts 1982, No. 82-399, §2-803.)
The appointment of a debtor as an executor is not a discharge of the debt, unless it is so directed in the will.
(Code 1852, §1606; Code 1867, §1927; Code 1876, §2291; Code 1886, §1952; Code 1896, §4258; Code 1907, §6167; Code 1923, §10592; Code 1940, T. 61, §17; Code 1975, §43-1-14.)
Administrators with the will annexed have the same powers and authority over the estates which executors named in the will would have, and their acts are as effectual for all purposes.
(Code 1923, §10595; Code 1940, T. 61, §22; Code 1975, §43-1-18.)
Whenever any testator, by the terms of his or her will, so provides, no corporation shall be accepted upon the bond of any executor or administrator of such testator.
(Code 1896, §3097; Code 1907, §1512; Code 1923, §2645; Code 1940, T. 61, §23; Code 1975, §43-1-19.)
After the death of a testator and on request of an interested person, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. Any person who wilfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to the penalty for contempt of court.
(Acts 1982, No. 82-399, §2-901.)
This article may be cited as the Alabama Uniform Disclaimer of Property Interests Act.
(Acts 1981, No. 81-156, §1; Code 1975, §35-17-1.)
(a) A person, or the representative of a deceased, incapacitated person, protected person, incompetent or ward, who is an heir, next of kin, devisee, legatee, grantee, donee, surviving joint tenant, person succeeding to a disclaimed interest, beneficiary under a testamentary or nontestamentary instrument or contract, or appointee under a power of appointment exercised by a testamentary or nontestamentary instrument, or to whom any property or interest therein devolves, by whatever means, may disclaim in whole or in part the right of succession to any property or interest therein by delivering or filing a written disclaimer under this article.
(b) A surviving joint tenant may disclaim as a separate interest any property or interest therein devolving to him or her by right of survivorship. A surviving joint tenant may disclaim the entire interest in any property or interest therein that is the subject of a joint tenancy devolving to him or her, if the joint tenancy was created by act of a deceased joint tenant, if the survivor did not join in creating the joint tenancy.
(c) The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
(Acts 1981, No. 81-156, §2; Code 1975, §35-17-2.)
(a) Except as provided in subsection (c) of this section, if the property or interest has devolved to the disclaimant under a testamentary instrument or by the laws of intestacy, the disclaimer shall be filed, as to a present interest, not later than nine months after the death of the deceased owner or deceased donee of a power of appointment and, if of a future interest, not later than nine months after the event determining that the taker of the property or interest has become finally ascertained and his or her interest is indefeasibly vested. The disclaimer shall be filed in the probate court of the county in which proceedings for the administration of the estate of the deceased owner or deceased donee of the power have been commenced or, if they have not been commenced, in which they could be commenced. A copy of the disclaimer shall be delivered in person or mailed by registered or certified mail to any personal representative or other fiduciary of the decedent or donee of the power.
(b) Except as provided in subsection (c) of this section, if the property or interest has devolved to the disclaimant under a nontestamentary instrument or contract, the disclaimer shall be delivered or filed, as to a present interest, not later than nine months after the effective date of the nontestamentary instrument or contract and, as to a future interest, not later than nine months after the event determining that the taker of the property or interest has become finally ascertained and his or her interest is indefeasibly vested. If the person entitled to disclaim does not have actual knowledge of the existence of the interest, the disclaimer shall be delivered or filed not later than nine months after he or she has actual knowledge of the existence of the interest. The effective date of a revocable instrument or contract is the date on which the maker no longer has power to revoke it or to transfer to himself or herself or another the entire legal and equitable ownership of the interest. The disclaimer or a copy thereof shall be delivered in person or mailed by registered or certified mail to the trustee or other person who has legal title to, or possession of, the interest disclaimed.
(c) In any case, as to a transfer creating an interest in the disclaimant made after December 31, 1976, and subject to tax under Chapter 11, 12, or 13 of the Internal Revenue Code of 1954, as amended, a disclaimer intended as a qualified disclaimer thereunder must specifically so state and must be delivered not later than nine months after the later of the date the transfer is made or the day on which the person disclaiming attains age 21.
(d) If real property or an interest therein is disclaimed, a copy of the disclaimer instrument may be filed for record in the office of the probate judge of the county in which the property or interest disclaimed is located.
(Acts 1981, No. 81-156, §3; Code 1975, §35-17-3.)
The disclaimer shall:
(1) Be in writing;
(2) Describe the property or interest disclaimed;
(3) Declare the disclaimer and extent thereof; and
(4) Be signed by the disclaimant.
(Acts 1981, No. 81-156, §4; Code 1975, §35-17-4.)
(a) If the property or interest devolved to a disclaimant under a testamentary instrument or under the laws of intestacy and the deceased owner or donee of a power of appointment has not provided for another disposition, it devolves as if the disclaimant had predeceased the decedent or, if the disclaimant was designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power. Any future interest that takes effect in possession or enjoyment after the termination of the estate or interest disclaimed takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his or her interest is indefeasibly vested. A disclaimer relates back for all purposes to the date of death of the decedent, or of the donee of the power, or the determinative event, as the case may be.
(b) If the property or interest devolved to a disclaimant under a nontestamentary instrument or contract and the instrument or contract does not provide for another disposition:
(1) It devolves as if the disclaimant had died before the effective date of the instrument or contract; and
(2) A future interest that takes effect in possession or enjoyment at or after the termination of the disclaimed interest takes effect as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his or her interest indefeasibly vested.
A disclaimer relates back for all purposes to the effective date of the instrument or contract or the date of the determinative event, as the case may be.
(c) The disclaimer or the written waiver of the right to disclaim is binding upon the disclaimant or person waiving and all persons claiming through or under him or her.
(Acts 1981, No. 81-156, §5; Code 1975, §35-17-5.)
The right to disclaim property or an interest therein is barred by:
(1) An assignment, conveyance, encumbrance, pledge, or transfer of the property or interest, or a contract therefor;
(2) A written waiver of the right to disclaim;
(3) An acceptance of the property or interest or a benefit thereunder; or
(4) A sale of the property or interest under judicial sale made before the disclaimer is effected.
(Acts 1981, No. 81-156, §6; Code 1975, §35-17-6.)
This article does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other statute.
(Acts 1981, No. 81-156, §7; Code 1975, §35-17-7.)
This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it. It is the intent of the legislature of the State of Alabama by this article to clarify the laws of this state with respect to the subject matter hereof in order to ensure the ability of persons to disclaim interests in property without the imposition of federal and state estate, inheritance, gift, and transfer taxes. This article is to be interpreted and construed in accordance with, and in furtherance of, that intent.
(Acts 1981, No. 81-156, §8; Code 1975, §35-17-8.)
An interest in property that exists on the effective date of this article as to which, if a present interest, the time for delivering or filing a disclaimer under this article has not expired or, if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within nine months after the effective date of this article.
(Acts 1981, No. 81-156, §10; Code 1975, §35-17-9.)
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