Handbook

for Alabama
Probate Judges

Tenth Edition
Click here for Table of Contents

Volume 1
• The Historical Background of the Office of the Probate Judge
• The Legal Framework of the Office of the Probate Judge
• The Administrative Functions of the Probate Judge
• The Judicial Functions of the Probate Judge
• The Functions of the Probate Judge as Chairman of the County
Governing Body

Alabama Law Institute

The Law Revision Division of
Legislative Services Agency
www.lsa.state.al.us
Alabama State House Law Center
Suite 207 Room 326
11 South Union Street P.O. Box 861425
Montgomery, AL 36130 Tuscaloosa, AL 35486
(334) 261-0680 (205) 348-7411
 PREFACE

One of the longstanding relationships of the Alabama Law Institute is that which is enjoyed
with the Alabama Probate Judges= Association. It has been a great privilege to have partnered
with them for more than thirty years to provide meaningful educational and training resources.
This edition of the Handbook for Alabama Probate Judges is just the most recent example of this
productive partnership.

The Alabama Law Institute, in conjunction with the Alabama Probate Judges= Association,
has published this Handbook to update A Manual for Alabama Probate Judges written by Coleman
B. Ransone, Jr. That manual was originally published in 1960 by the Bureau of Public Affairs
and Administration of the University of Alabama with a second edition, by Professor Ransone,
later published in 1974. In 1982, the Alabama Law Institute published a third edition which was
edited by Keith B. Norman. The fourth edition was edited by Robert L. McCurley, Jr. The fifth,
sixth, seventh, eighth, and ninth editions were edited by Penny A. Davis.

This tenth edition, edited by Michael Hill, incorporates changes in Alabama law since the
last edition and expands the scope of forms included in the book. For the first time, the forms are
published in a separate book for ease of reference.

The primary purpose of this Handbook is to serve as a quick reference for probate judges
in finding legal sources of the duties with which they are entrusted by law. For newly elected
probate judges especially, this Handbook can be an important tool in providing a general overview
of the office and in helping to familiarize them with their many responsibilities.

We would again like to thank Penny Davis for her assistance with this edition. Even in
retirement, she continues to dedicate a significant portion of her time with the Institute educating
local officials throughout Alabama, particularly Probate Judges. Penny’s assistance and advice
for updating this important publication were invaluable. Likewise, we are grateful to Jill Colburn,
for her patient efforts formatting this manuscript.

The Institute also wishes to express its appreciation to the following persons for their help
in reviewing, proofing, and providing valuable insight in the preparation of this draft: Honorable
Eldora Anderson, Perry County; Honorable Steven Blair, Coffee County; Honorable Judge Al
Booth, Autauga County; Honorable Stacy Brooks, Covington County; Honorable Greg Cain,
Morgan County; Honorable Patrick Davenport, Houston County; Honorable Don Davis, Mobile
County; Honorable George Diamond, Randolph County; Honorable Robert Agerton, Escambia
County; Honorable Brandy Easlick, Chambers County; Honorable Bill English, Lee County;
Honorable Chris Greene, Blount County; Honorable Laurie Hall, Marengo County; Honorable
Stephanie Kemmer, Bibb County; Honorable Alan King, Jefferson County; Honorable Alice
Martin, Calhoun County; Honorable Sheila Moore, Winston County; Honorable Steve Norman,
Butler County; Honorable Greg Norris, Monroe County; Honorable Ronnie Osborn, DeKalb
County; Honorable John Paluzzi, Pickens County; Honorable Steven Reed, Montgomery County;
iii
Honorable Ryan Robertson, Cleburne County; Honorable Daniel Rosser, Colbert County;
Honorable Tim Russell, Baldwin County; Honorable Susan Shorter, Barbour County; Honorable
Willie Pearl Watkins Rice, Sumter County; Honorable Charles Woodroof, Limestone County; Lisa
Whitehead, Tuscaloosa County Chief Clerk; and Greg Butrus.

In addition, we would like to thank the following persons who provided assistance on the
forms included in the book: Honorable Andrea Lecroy, Marshall County; Nannette Brooks,
Chambers County Chief Clerk; Lawana Patterson, Talladega County Chief Clerk, Leanne
Richardson, Houston County.

Finally, we would like to express our gratitude to Mallory Hall and Katie Windle who
provided research assistance on this publication while they were law students at the University of
Alabama’s Hugh F. Culverhouse School of Law and working for the Institute as Law Clerks.

It should be emphasized that this publication is not an authoritative statement of the

law, nor is it a substitute for the Code or other legal materials explanatory thereof. This
publication seeks to serve only as a general guide to the specific mandates of Alabama=s laws
regulating probate judges. Users of this publication who have need of authoritative legal
statements should seek such assistance from the appropriate legal source.

Although the Alabama Law Institute is a state agency, no conclusions concerning policies
of the State of Alabama are to be drawn from this volume. This statement is also true with respect
to the position of the University of Alabama for their earlier editions. The findings and
conclusions of the study are those of the editor, who takes sole responsibility for the accuracy of
the study and for any interpretations of the cases presented.

Clay Hornsby
Deputy Director
Alabama Law Institute

January 2019

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 TABLE OF CONTENTS

Page

I. THE HISTORICAL BACKGROUND OF THE

OFFICE OF THE JUDGE OF PROBATE .....................................................................1

A. The English Foundation .......................................................................................................1

B. Early American Practice ......................................................................................................2
C. The Development of the Office in Alabama ........................................................................3

II. THE LEGAL FRAMEWORK OF THE OFFICE

OF THE JUDGE OF PROBATE .....................................................................................7

A. The Constitutional and Statutory Base ......................................................................................7

B. The Limited Jurisdiction of the Probate Court ..........................................................................8
C. Validity Accorded Probate Court Decisions ..............................................................................9
D. Ethics Act .................................................................................................................................11
E. Limitations Under Alabama’s Taxpayer and Citizen
Protection Act ..........................................................................................................................15
a. Limitations on Business Transactions Conducted by Unauthorized Aliens ......................15
b. Information Relating to Immigration Status ......................................................................16
c. Enforcement of and Compliance with State Immigration Laws ........................................17
F. Ex Officio Duties of the Judge of Probate ...............................................................................18
a. Chairman of the Governing Body ......................................................................................18
b. Miscellaneous Duties .........................................................................................................18
G. Election, Term, Qualifications, Vacancies and Removal ........................................................18
a. Election and Term ..............................................................................................................18
b. Qualifications .....................................................................................................................19
c. Vacancies ...........................................................................................................................19
d. Removal .............................................................................................................................19
H. Special Judge of Probate ..........................................................................................................19
I. Bonds .......................................................................................................................................20
J. Oath ..........................................................................................................................................20
K. When Court Deemed Open and Where Cases May Be Heard.................................................21
L. Probate Judge Fees ...................................................................................................................21
a. General Fees.......................................................................................................................21
b. UCC Fees ...........................................................................................................................21
c. Filing Fees for All Entities .................................................................................................22
d. Sale of Land .......................................................................................................................23
e. Posting of Fee Lists ............................................................................................................23
M. Costs of the Probate Office ......................................................................................................24
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N. Judges of Probate Compensation .............................................................................................24

O. Staffing the Probate Office ......................................................................................................27
P. Chief Clerk ...............................................................................................................................28
a. Duties .................................................................................................................................28
b. Oath and Bond ...................................................................................................................28
c. Restrictions of the Types of Duties Performed By Chief Clerk ........................................28
d. Performance of the Duties of the Judge of Probate in the Event of Vacancy....................29
e. Salary .................................................................................................................................29
f. Fiduciary Funds .................................................................................................................30
g. Appellate Duties.................................................................................................................30
h. Liability for Delayed or Defective Record ........................................................................30
i. Failure to Deliver Books to Successors in Office ..............................................................30

III. THE ADMINISTRATIVE FUNCTIONS OF THE JUDGE OF PROBATE ..................31

A. General .....................................................................................................................................31
B. Codification of Local Acts .......................................................................................................31
C. Penalties ...................................................................................................................................31
D. Maintaining Records ................................................................................................................32
a. Fee Books...........................................................................................................................33
b. Minutes of the Court of Probate.........................................................................................33
c. Court Docket ......................................................................................................................33
d. Sheriff’s Fees .....................................................................................................................34
e. Acts, Reports, and Digests .................................................................................................34
f. Census Reports...................................................................................................................34
g. Liens of Judgments and Decrees........................................................................................34
h. Conveyances ......................................................................................................................34
i. Notices of Adverse Possession ..........................................................................................34
j. Indexes ...............................................................................................................................34
k. Record of Election Results.................................................................................................35
E. Instruments to be Recorded .....................................................................................................35
F. Bonds .......................................................................................................................................36
G. Oaths ........................................................................................................................................37
H. Corporations .............................................................................................................................38
a. Articles of Incorporation and Other Filings .......................................................................38
b. Incorporation Fees .............................................................................................................38
c. Special Corporations ..........................................................................................................38
I. Other Records and Files ..........................................................................................................40
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J. Licensing ..................................................................................................................................42
a. General Provisions .............................................................................................................42
b. Boat Licenses .....................................................................................................................43
c. Business, Vocational, and Occupational ............................................................................43
d. Certificates of Title ............................................................................................................44
e. Deed and Mortgage Tax.....................................................................................................44
f. Driver’s Licenses ...............................................................................................................44
g. Hunting and Fishing ...........................................................................................................44
h. Marriage .............................................................................................................................44
i. Motor Vehicle Tags and Special Permits...........................................................................45
j. Public Warehouses .............................................................................................................46
K. Reports .....................................................................................................................................46
a. Adoptions, Annulments and Revocations ..........................................................................46
b. Business, Professional, and Occupational .........................................................................46
c. Certificates of Title ............................................................................................................46
d. Deaths and Vacancies in Public Offices ............................................................................47
e. Driver’s Licenses ...............................................................................................................47
f. Hunting and Fishing ...........................................................................................................47
g. Incorporation Reports ........................................................................................................47
h. Marriage .............................................................................................................................48
i. Motor Vehicle ....................................................................................................................48
j. State Land Purchases .........................................................................................................48
k. Other Reports .....................................................................................................................48
L. Fiduciary Funds .......................................................................................................................49
a. Auditing of Public Accounts ..............................................................................................49
b. Disposition of Personalty and Realty.................................................................................49
c. Heirs in Foreign Countries .................................................................................................50
d. Minor..................................................................................................................................50
M. Conduct of Elections ................................................................................................................50

IV. THE JUDICIAL FUNCTIONS OF THE JUDGE OF PROBATE ...................................51

A. The Scope of Judicial Functions ..............................................................................................51

B. Judicial Immunity ....................................................................................................................52
C. Service of Process ....................................................................................................................53
a. Generally ............................................................................................................................53
b. Time Limit for Service.......................................................................................................54
c. Upon Whom Process Served .............................................................................................54
d. Service by a Process Server ...............................................................................................56
e. Service by Certified Mail ...................................................................................................56
f. Service Refused .................................................................................................................57
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g. Service by Publication .......................................................................................................57

D. Pretrial Motions .......................................................................................................................58
E. Wills and Administration .........................................................................................................58
a. Requirements For Making a Will ......................................................................................59
b. Effect of Divorce; Pretermitted Children ...........................................................................59
c. Right of Surviving Spouse to Elective Share .....................................................................59
d. Who May Probate a Will ...................................................................................................60
e. When and Where a Will Must Be Probated .......................................................................60
f. Duty of Person with Custody of Will ................................................................................60
g. Digital Assets .....................................................................................................................60
h. Notice to Next of Kin; Proof of Will .................................................................................60
i. Self-Proving Wills .............................................................................................................61
j. When Subscribing Witnesses are Unavailable to Prove Will ............................................61
k. Lost Will ............................................................................................................................61
l. Will Contest .......................................................................................................................62
m. Transfer of Contest to Circuit Court ..................................................................................63
n. In Terrorem Clause ............................................................................................................63
o. Executor’s (Personal Representative’s) Letters Testamentary ..........................................63
p. Co-representatives..............................................................................................................64
q. Renunciation of Appointment as Executor (Personal Representative) ..............................64
r. Failure of Executor (Personal Representative) to Apply for Letters Testamentary...........64
F. Administration of Estates .........................................................................................................64
a. Jurisdiction of Probate Court .............................................................................................64
b. Granting Letters of Administration ..................................................................................65
c. Order of Administration and Time of Administration .......................................................66
d. Granting of Letters to Several Kindred Persons ................................................................66
e. Priority Among Different Letters.......................................................................................67
f. When Letters May Be Granted ..........................................................................................67
g. County or General Administrators .....................................................................................67
h. Non-Resident Administrators ............................................................................................67
i. Administration of Estates of Persons Presumed Dead .......................................................67
G. Provisions Applicable to Both Executors and Administrators (Personal Representatives) .....68
a. Notice of Appointment ......................................................................................................68
b. Bonds .................................................................................................................................68
c. Administrator Ad Colligendum .........................................................................................69
d. Administrator Ad Litem .....................................................................................................69
e. Filing of Claims and Priorities of Debts. ...........................................................................70
f. Exempt Property and Allowances ......................................................................................70
g. Inventory of Estate .............................................................................................................71
h. Appraisal and Setting Apart of Exemptions ......................................................................71
i. Powers of Personal Representatives Without Prior Court Approval .................................72
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j. Powers of Personal Representative Requiring Prior Court Approval ................................74

k. When an Annual or Partial Settlement is Required ...........................................................75
l. When Final Settlement May Be Made ...............................................................................75
m. Notice Required .................................................................................................................75
n. Settlement By Consent Without Notice .............................................................................75
o. Compelled Settlement ........................................................................................................75
p. Presumption of Settlement .................................................................................................76
q. Sale of Personal Property ...................................................................................................76
r. Sale of Real Estate .............................................................................................................76
s. The Application for Sale of Land ......................................................................................77
t. Report and Examination of Sale ........................................................................................77
u. Vacation of Sale When Deemed Unfair.............................................................................77
v. Confirmation of Sale ..........................................................................................................78
w. Citation to Report Sale of Land .........................................................................................78
x. Resignation, Death, or Removal of An Administrator or Removal of an
Administrator or Executor (Personal Representative) .......................................................78
y. Successor Personal Representative ....................................................................................78
z. Compensation of Personal Representatives .......................................................................78
H. Small Estates Act .....................................................................................................................79
a. Bank Accounts of Deceased Depositors ............................................................................80
I. Advancements ..........................................................................................................................81
J. Exemptions ..............................................................................................................................81
K. Property and Conveyances .......................................................................................................81
a. General ...............................................................................................................................81
b. Proof of Value ....................................................................................................................82
L. Guardianships ..........................................................................................................................82
a. General ...............................................................................................................................82
b. Delegation of Parental Powers ...........................................................................................83
c. Testimony ..........................................................................................................................83
d. Guardian of Minors ............................................................................................................83
1. Appointment .............................................................................................................83
2. Objection by Minor of Fourteen or Older to Parental Appointment ........................83
3. Court Appointment of Guardian ...............................................................................84
4. Venue ........................................................................................................................84
5. Procedure, Duties and Terminations .........................................................................84
e. Guardians of Incapacitated Persons ...................................................................................84
1. Appointment .............................................................................................................84
2. Jurisdiction ................................................................................................................84
3. Venue ........................................................................................................................85
4. Procedure and Notice ................................................................................................85
5. Priorities and Duties ..................................................................................................85
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6. Temporary Guardian .................................................................................................86

7. Corporate Guardians for Developmentally Disabled ................................................86
f. Alabama Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act .......86
1. Communication Between Courts ..............................................................................86
2. Cooperation Between Courts ....................................................................................87
3. Taking Testimony in Another State ..........................................................................87
4. Definitions; Significant Connections Factors ...........................................................87
5. Jurisdiction ................................................................................................................87
6. Special Jurisdiction ...................................................................................................87
7. Appropriate Forum....................................................................................................88
8. Jurisdiction Declined By Reason of Conduct ...........................................................88
9. Information To Be Submitted To Court....................................................................89
10. Transfer of Guardianship or Conservatorship Transferred To Another State ..........89
11. Accepting Guardianship or Conservatorship Transferred From Another State........90
12. Recording and Recognition of Orders From Other States ........................................91
13. Effect of Recording ...................................................................................................91
g. Guardian for Incompetent Veteran ....................................................................................91
1. To Receive Veterans’ Benefits .................................................................................91
2. Commitment of Incompetent Veterans to Veterans’ Hospital ..................................91
3. Sale and Purchase of Real Estate ..............................................................................91
h. Guardian for Handling Funds From Governmental Entities..............................................91
M. Conservator of Property ...........................................................................................................92
a. In General...........................................................................................................................92
b. Removal .............................................................................................................................92
c. Venue .................................................................................................................................92
d. Petition, Notice and Hearing ..............................................................................................92
e. Court’s Protective Powers..................................................................................................93
f. Testimony ..........................................................................................................................93
g. Priorities .............................................................................................................................93
h. Bond ...................................................................................................................................93
i. Compensation ....................................................................................................................94
j. Inventory, Records and Accounts ......................................................................................94
k. Title to Property .................................................................................................................94
l. Recording of Conservator’s Letters ...................................................................................94
m. Conflict of Interest .............................................................................................................94
n. Powers ................................................................................................................................94
o. Standard of Care and Performance ....................................................................................95
p. Failure of Conservator to Obey Process to Appear and File Accounts and Vouchers ......95
N. Hearings for Commitment to Mental Institutions ....................................................................95
a. Petition for Hearing............................................................................................................95
b. Review of Petition by Probate Judge .................................................................................95
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c. Service of Notice by Sheriff ..............................................................................................96

d. Appointment of Attorney and Guardian Ad Litem for Persons Sought To
Be Committed ....................................................................................................................96
e. Person to be Committed Brought Before Judge of Probate ...............................................96
f. When Limitations on Liberty Permitted Pending Final Hearing .......................................97
g. Medical Examination Can Be Ordered ..............................................................................97
h. When Probable Cause Hearing Held .................................................................................97
i. Final Hearing: When ..........................................................................................................97
j. Conduct of Hearings ..........................................................................................................97
k. Findings By the Judge of Probate ......................................................................................98
l. Outpatient Treatment .........................................................................................................98
m. Inpatient Treatment ............................................................................................................99
n. Order for Involuntary Commitment for Inpatient Treatment to be Entered
Into Criminal Justice Information System and NICS ......................................................100
o. Retention of Jurisdiction ..................................................................................................101
p. Appeals ............................................................................................................................101
q. Transfer of Committed Persons to the Custody of the Veterans Administration ............101
r. Fees and Costs..................................................................................................................101
O. Children..................................................................................................................................102
a. Adoption ..........................................................................................................................102
1. Petition ....................................................................................................................102
2. Notice ......................................................................................................................103
3. Native Americans....................................................................................................103
4. Interlocutory Decree ...............................................................................................103
5. Investigation ............................................................................................................104
6. Pending Custody Actions ........................................................................................104
7. Consent ...................................................................................................................104
8. Putative Father Registry..........................................................................................105
9. Dispositional Hearing .............................................................................................105
10. Final Decree ............................................................................................................106
b. Foreign Adoption: Certificate of Foreign Birth Without Judicial Proceedings ...............106
c. Adult Adoption ................................................................................................................106
d. Legitimation .....................................................................................................................107
e. Change of Name ..............................................................................................................107
P. Eminent Domain ....................................................................................................................107
a. Jurisdiction .......................................................................................................................107
b. Authority ..........................................................................................................................108
c. Procedure Prior to Commencement of Condemnation Action ........................................108
1. Appraisal .................................................................................................................108
2. Offer ........................................................................................................................108
3. Payment or Deposit Before Surrender of Possession .............................................109
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4. Notice ......................................................................................................................109
5. Uneconomic Remnant .............................................................................................109
6. Entry........................................................................................................................109
7. Offer as Prerequisite ...............................................................................................109
d. Commencement of Condemnation Action.......................................................................109
1. Filing a Complaint ..................................................................................................109
2. Service of Process ...................................................................................................109
3. Defendant’s Response .............................................................................................109
4. Withdrawal of Deposited Funds Before Judgment .................................................109
e. Commissioners.................................................................................................................110
1. Appointment of Commissioners .............................................................................110
2. Commissioner’s Hearing and Assessment of Damages..........................................110
3. Commissioner’s Report ..........................................................................................110
4. Appeal to Circuit Court ...........................................................................................110
f. Measure of Damages........................................................................................................110
1. “Fair Market Value” ...............................................................................................110
2. Before and After Value ...........................................................................................110
3. Incidental Benefits ..................................................................................................110
4. Highest and Best Use ..............................................................................................111
5. Prejudgment Interest ...............................................................................................111
Q. Notaries Public .......................................................................................................................111
a. Bond .................................................................................................................................111
b. Seal and Office .................................................................................................................112
c. Authority ..........................................................................................................................112
d. Fees ..................................................................................................................................112
e. Exceeding Authority ........................................................................................................112
R. Retired or Supernumerary Probate Judges .............................................................................113
S. Canons of Judicial Ethics .......................................................................................................113
T. Miscellaneous ........................................................................................................................113
a. Appointment of Special Coroner .....................................................................................113
b. Awarding Attorney Fees ..................................................................................................114
c. Burial Places ....................................................................................................................115
d. Change of Name ..............................................................................................................115
e. Contested Elections ..........................................................................................................115
f. Correction of Marriage Licenses .....................................................................................115
g. Declaration of Residence .................................................................................................115
h. Discretion to Authorize an Agent with the Right of Disposition of a Deceased Person .116
i. Drainage Districts ............................................................................................................116
j. Filing of Bond ..................................................................................................................117
k. Filing of False Liens ........................................................................................................117
l. Mandatory Continuing Judicial Education ......................................................................118
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m. Mine Surveys ...................................................................................................................118

n. Municipalities ..................................................................................................................118
o. Public Improvement Authorities ......................................................................................119
p. Refund of Taxes ...............................................................................................................119
q. Rites of Marriage .............................................................................................................119
r. Sale of Land for Delinquent Taxes ..................................................................................119
s. Redemption of Land Sold for Taxes ................................................................................120
t. Social Security Number and Birthdate Redaction ...........................................................122
u. Taxpayer About to Jeopardize Possibility of Tax Collection ..........................................122

V. THE FUNCTIONS OF THE JUDGE OF PROBATE AS CHAIRMAN OF THE

COUNTY GOVERNING BODY..................................................................................123

A. Generally ................................................................................................................................123
a. Administrative Tasks .......................................................................................................123
b. County Board of Health ...................................................................................................124
c. Keeping Other Members of the Commission Informed on Matters ................................124
d. Preparation of Budgets .....................................................................................................124
e. Responsibility for Other Executive Acts .........................................................................125
f. Summary ..........................................................................................................................125

APPENDIX A .............................................................................................................................127
APPENDIX B .............................................................................................................................129

GLOSSARY OF TERMS ..........................................................................................................131

INDEX.........................................................................................................................................137

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 I.

THE HISTORICAL BACKGROUND OF

THE OFFICE OF THE JUDGE OF PROBATE
The organization of the probate courts in Alabama would be difficult to understand
without reviewing the historical development of the office. The development of these courts was
greatly influenced by colonial institutions that preceded them and these in turn were to a large
extent modeled after English practice. Thus, to understand the organization of our present-day
courts, it is necessary to review their development in England and in the colonies.

A. THE ENGLISH FOUNDATION

The history of probate of wills and administration of estates in Great Britain is closely
related to the history of the ecclesiastical courts in that country. Unfortunately, the exact date of
origin is not known with any certainty for either the ecclesiastical courts or probate and
administration. Sir Henry Spelman set 1151 as the date that civil and canon law was imported to
England, while Sir William Blackstone set it around the 12th century. However, it seems rather
definite that neither kind of court had been established before the Norman conquest in 1066.

In 1066 the probate of wills and administration of estates did not take the form that we
know at the present time. However, such jurisdiction and procedures as did exist were exercised
by the secular courts, generally the county court, which had been established in England during
the pre-Norman period. Both the civil and the ecclesiastical authorities united for the
administration of justice with no distinction between secular and spiritual matters.

Following the conquest, the Norman laws and customs which were instituted in England
divided the jurisdiction over legal matters between spiritual and secular courts. Gradually,
jurisdiction over various phases of probate and administration was transferred from the secular to
ecclesiastical courts. By 1084, some jurisdiction over the administration of estates had been
transferred to the ecclesiastical courts. A century later the spiritual courts also had acquired
jurisdiction over certain cases involving wills, and it may be surmised that authority to probate
testaments followed shortly thereafter. This authority was fully established by the fourteenth
century.

The division of authority between secular and spiritual courts was based upon the type of
property involved. The spiritual courts exercised jurisdiction over personal property, while the
secular courts exercised jurisdiction over real property. During the reign of Henry 1 (1100-1135)
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Handbook for Probate Judges

an attempt was made to reunite the ecclesiastical and civil courts into one system. However, the
clergy opposed the unification, and when Stephen ascended to the throne in 1135 separate
jurisdictions were re-established. From that point on the ecclesiastical courts, although their
authority was challenged from time to time by overloads and by common law courts, remained
as a separate system of courts until the nineteenth century.

Another significant legal development during this period was the rise of chancery courts.
Through various means these courts had gained and were exercising extensive jurisdiction over
the administration of estates by the eighteenth century.

During the period of America's colonization, jurisdiction over the probate of wills and
administration of estates in Great Britain was divided among the ecclesiastical courts, common
law courts, and chancery courts. Influence from this practice in the handling of probate and
administration can be seen in several colonies. In fact, the division of jurisdiction over the
probate of wills and administration of estates among courts of probate or other inferior courts
exercising this authority, chancery courts, and law courts in some of our states today can be
traced to this early English practice. Although occurring after the colonization period, the
development of courts of probate in Great Britain culminated in 1857 when they were formally
established as separate courts.

B. EARLY AMERICAN PRACTICE

Early American statesmen naturally were influenced by English practice in establishing

colonial governments, including the organization of the court system. However, ecclesiastical
courts were never established in America. Therefore, the division that existed in Great Britain
never took root in this country.

Originally colonial governments tended to vest all jurisdiction over judicial matters in the
ordinary civil courts. This practice evoked criticism from the Crown because it did not adhere to
English law and custom. To meet this criticism, the jurisdiction over probate to wills and the
administration of estates generally was assigned to the governor and his assistant, although it was
common for the legislature itself to administer estates. However, this arrangement failed to meet
the needs of a rural society, and local courts that were closer to the people to be served were
established throughout each colony. These courts were known by various titles. The most
common names were probate courts, orphans’ court, and surrogates' court. Courts of ordinary
were common. The county court in several colonies was vested with this jurisdiction.

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 Historical Background of the Office of the Judges of Probate

Separate probate courts were established in some colonies at a very early date. For
example, Connecticut established a probate court in Hartford, New Haven, Fairfield and New
London counties in 1716. Probate courts were established in Massachusetts in 1784. However,
the practice in most colonies and in the newly organized states was to assign this jurisdiction to
another court, most frequently the county court. In 1645, Virginia assigned jurisdiction over
probate and administration to the county court. These courts were usually multi-headed bodies
with numerous other responsibilities. Ordinarily, the county court was the chief administrative
and legislative body in the county, in addition to its role as an inferior court with limited criminal
and civil jurisdiction. A court of this type, although not always called the county court,
exercised jurisdiction over probate and administration in all of the southern colonies at one time
or another during the period in which Alabama was being settled.

Even the county courts were required to sit as an orphans' court for exercising jurisdiction
over probate and orphans' business. Separate days were set aside for these matters and different
rules guided the proceedings. The practice of establishing separate courts or separate divisions
resulted in the recognition of probate jurisdiction as a distinct and independent branch of law
based upon its own set of principles and rules of procedure. The results are clearly evidence in
current probate practice.

In summary, at an early date in American history, local courts were vested with
jurisdiction over the probate of wills and administration of estates. In some colonies separate
specialized courts were established in each county to exercise this jurisdiction, while in others
the county court or a similar body was vested with this responsibility in addition to several other
functions. The most significant aspect of these early courts, however, was the recognition of
probate jurisdiction as an independent branch of law in both types of courts. It was from this
background that Alabama's first system of courts was established.

C. THE DEVELOPMENT OF THE

OFFICE IN ALABAMA

Obviously early Alabama statesmen were influenced by practices in surrounding states

and the Mississippi Territory in the establishment of the state's first courts. Although for a short
period separate courts of probate had existed in the Mississippi Territory, the practice of
requiring the county or inferior court to sit as an orphans' court prevailed. This court, like its
counterpart in most other southern states, was also the chief administrative and legislative body
in the county and an inferior court with limited criminal and civil jurisdiction. The county court
arrangement was continued during the period Alabama was organized as a territory.

3
Handbook for Probate Judges

The Alabama legislature at its first session established the same type of court system that
had existed in the territory with only minor deviations. An inferior court consisting of five
members was established in each county. It was required to sit at certain intervals as an orphans'
court to handle probate and orphans' business. Moreover, it was the chief administrative and
legislative body in the county and an inferior court with limited criminal and civil jurisdiction.
In essence, it was simply a carry-over of the territorial county court.

It was not until 1821 that a significant change was made in the county court. In that year
the composition of the court was changed from five justices and a clerk to one judge and a clerk.
At the time there was established in each county a separate court of county commissioners,
consisting of four commissioners and the county judge. This arrangement provided for some
separation of the judicial function from the administrative and legislative function at the county
level. The county court was vested mainly with the same judicial powers of its predecessor, the
county judge with the same powers formerly exercised by the chief justice of the inferior court.
The administrative and legislative functions such as the control over roads, ferries, bridges, and
the management of public buildings were assigned to the new commissioners' court. No other
significant changes were made in the county court until mid-century.

In 1850, a court of probate as we know it today was established in each county. The
positions of clerk and judge of the county court were consolidated into an office of judge of
probate. Unlike the county judge who was appointed for a six-year term, the judge of probate
was to be popularly elected for a term of six years. Jurisdiction of the old county court was for
the most part simply transferred to the court of probate, the major exception being criminal and
civil jurisdiction, neither of which has vested in the new court. The judge of probate was given
the authority formerly exercised by the county judge and clerk of the county court, with authority
to appoint his own clerk. Like his predecessor, the judge of probate was made a member of the
court of county commissioners.

Since 1850 there have been several important changes in the legal framework of the
office of the judge of probate. Most of the early changes made added new duties to those already
assigned or expanded existing areas of responsibility. Additional responsibilities in election
administration, licensing and records are good examples of the expansion. The most important
addition was made in 1866 when the judge of probate was designated as ex officio judge of the
county court. Exceptions to this law were made in several counties between 1866 and 1915. In
1915 the judge of probate was re-established as ex officio judge of the county court in all
counties with a population less than 50,000.

4
 Historical Background of the Office of the Judges of Probate

Another important addition to the duties of the judge of probate was the designation as
judge of the juvenile court in all counties in which a separate juvenile court had not been
established. He was vested also with jurisdiction over desertion and non-support cases, both in
1915.

However, not all changes have been addition or expansions to the functions of the office.
For example, in 1919 the clerk of the circuit court was designated ex officio clerk of the county
court, and in 1935 duties relating to the welfare were transferred to the county welfare
department. Moreover, judges of probate are now the chairperson of the county commission in
only fifteen counties: Cherokee, Choctaw, Cleburne, Dale, Dallas, Franklin, Geneva, Hale,
Henry, Lamar, Lauderdale, Lee, Monroe, Tuscaloosa, and Washington.

Another change in responsibilities came with the adoption of the judicial article. Prior to
its adoption in 1973, and the subsequent passage of implementing legislation, Alabama judges of
probate performed functions as ex officio judges of other courts. The first of these groups of
functions included the county court. Basically, the county court had original jurisdiction,
concurrent with the circuit court, of all misdemeanors committed in the county. Title 13,
Sections 313-349 of the 1958 Code of Alabama describe the county courts as they formerly
existed in Alabama.

The second set of functions involving another ex officio duty involved the juvenile court.
The judges of probate, sitting as judge of the juvenile court had original and exclusive
jurisdiction over all children under sixteen years of age. That jurisdiction extended to eighteen
years of age for girls and at the discretion of the court having jurisdiction of the offense
committed, it could be extended to eighteen years of age for boys. The judge had authority to
hear, determine, and adjudicate all questions and cases relating to dependency, neglect, and
delinquency of children within the above age limits. All cases were tried by the judge who
rendered the decision without the intervention of a jury. Moreover, the judges of probate acting
as juvenile judge could issue judgments and orders for the custody, discipline, supervision, care,
protection, or guardianship as determined by the court to be in the best interest of the child.
These duties were set forth in Title 13, Sections 351-383 of the 1958 Code of Alabama.

A final function formally assigned to the probate court was the jurisdiction over desertion
and non-support cases. This was covered in Title 34, Sections 89-104 of the 1958 Code.

With the adoption of the judicial article, these former duties of the probate court have
been placed within the jurisdiction of the district court or, in some instances, the circuit court.

5
Handbook for Probate Judges

6
 II.

THE LEGAL FRAMEWORK OF THE

OFFICE OF THE JUDGE OF PROBATE

A. THE CONSTITUTIONAL AND

STATUTORY BASE

The new judicial article which was ratified in December of 1973, did not alter the status of
the probate court. While it is a constitutional court in the sense that the Constitution provides that
there must be a probate court in each county, the Constitution does not specify the qualifications
of the office. It is especially significant that the judicial article does not require that the judge of
probate be licensed to practice law in the state, which is one of the qualifications of all of the other
judges in the judicial system. On the other hand, if the judge of probate does happen to be a lawyer,
he1 like all other judges, is prohibited from practicing law while holding the office of judge of
probate. Following retirement as judge of probate, however, he may practice law and draw his
retirement.

Also interesting is that Ala. Const. Amend. 328, § 6.08 on "Prohibited Activities" does not
prohibit the judge of probate from holding another office of public trust, or from being in a political
party organization or from campaigning for other candidates. This section reads "no judge, except
a judge of the probate court, shall seek or accept any non-judicial elective office, or hold any other
office of public trust, excepting service in the military forces of the state or federal governments."
Thus, the judge of probate is recognized as being in a special category. This is necessary because
although a judge of probate has significant legal functions, he also has many political and
administrative roles that would be difficult to perform if he followed the same code of conduct as
other judges.

The Code of Alabama, 1975, and its supplements contain the general statutory provisions
affecting the office. References to the office and its duties are scattered throughout the Code, but
Sections 12-13-1 through 12-13-70 contain most of the provisions relative to the legal framework
of the office. The state legislature also has passed many local acts and general acts of local
application affecting the office of judge of probate in various counties. However, the Alabama

1
Words in the masculine gender include the feminine consistent with Alabama Code § 1-1-2.
7
Handbook for Probate Judges

Supreme Court ruled in the case of Peddycoart v. City of Birmingham2 that population
classifications used to create general acts of local application are unconstitutional. In response to
the Peddycoart decision, the Alabama Legislature passed Amendment 375. That amended § 110
of the Alabama Constitution and permitted the creation of eight classifications of municipalities.
[See § 11-40-12]3. The legislature also proposed another amendment to the constitution to protect
all general acts of local application enacted before the Peddycoart decision. This proposed
amendment was ratified by Alabama voters as Ala. Const. amend. 389. As a consequence of the
Peddycoart ruling, many acts that at one time could be enacted as general acts of local application
must now be enacted as local legislation in accordance with advertisement requirements of section
106 of the Alabama Constitution.

As a consequence, there are literally hundreds of local acts and general acts of local
application that continue to apply to specific counties. Several of these general acts of local
application cover many counties, either because of the specified population range or because of
court interpretation. These acts are covered in this handbook. Local acts and most general acts of
local application are not covered in this handbook. It would, in effect, take a different manual for
each of Alabama's 67 counties to completely cover such acts. Consequently, each new judge of
probate is urged to acquaint himself with the local acts and the general acts of local application
that apply to his county. A knowledge of these acts, in addition to the information found in this
handbook, is necessary for a basic understanding of the judge of probate's function in a specific
county.

B. THE LIMITED JURISDICTION OF

THE PROBATE COURT

The court of probate has original and general jurisdictions over the following matters:

(1) The probate of wills;

(2) The granting of letters of testamentary and of administration and the repeal
or revocation of the same;
(3) All controversies in relation to the right of executorship or of
administration;
(4) The settlement of accounts or executors and administrators (personal
representatives);
(5) The sale and disposition of the real and personal property belonging to and

2
354 So. 2d 808 (Ala. 1978).
3
Unless otherwise stated, all citations in this book are to the Code of Alabama, 1975.
8
 Legal Framework of the Office of the Judge of Probate

the distribution on intestates' estates;

(6) The appointment and removal of guardians for minors and persons of
unsound mind;
(7) All controversies as to the right of guardianship and the settlement of
guardians' accounts;
(8) The allotment of dower in land in the cases provided by law;
(9) The partition of lands within their counties;
(10) The change of the name of any person residing in their county, upon filing
a declaration in writing, signed by him, stating the name by which he is known and
the name to which he wishes it to be changed.

[§ 12-13-1]. Likewise, the probate courts are granted jurisdiction by statute in other areas
including:
(1) Proceedings related to the establishment and operation of water
management districts; [§§ 9-9-1 through 80]
(2) Eminent domain proceedings; [§§ 18-1A-1 through 311]
(3) Petitions of adoption; [§§ 26-10A-1 through 38]
(4) The sale and redemption of lands sold for the payment of delinquent taxes;
[§§ 40-10-1 through 30, 40-10-120 through 143].

Additionally, the probate courts of Jefferson, Mobile, and Shelby counties have concurrent
jurisdiction with the circuit courts of those counties to hear any proceeding brought by a trustee or
beneficiary concerning the administration of a trust. [Regions Bank v. Reed, 60 So.3d 868 (Ala.
2010), see § 19-3B-203(b)].

Several probate courts have been granted limited equitable jurisdiction by local acts or
constitutional amendments. In some counties, equitable jurisdiction is only granted to a judge of
probate in a county if that judge is learned in the law. [Currently: Shelby and Pickens]. Some
counties require a judge to be learned in the law. [Currently: Jefferson and Mobile].

C. VALIDITY ACCORDED PROBATE

COURT DECISIONS

Orders, judgments, and decrees issued by probate courts are accorded the same validity
and presumption accorded courts of general jurisdiction. [§ 12-13-1 (c)]. Probate courts may issue
show cause orders and attachments for contempt of court, or its process, by any executor,
administrator (personal representative), guardian, or other person, and may punish by fine,
imprisonment, or both. [§§ 12-1-8, 10 and 12-13-1, 9]. If the judge of probate is a licensed attorney

9
Handbook for Probate Judges

in the state of Alabama, he or she has the same power to punish for civil contempt as a circuit court
judge does. [§ 12-13-9]. The court also has authority to preserve and enforce order in its
proceedings, to compel obedience to its judgments, orders and process, to control the proceedings
of the officers of the court and other persons connected with proceedings therein, to administer
oaths necessary in the exercise of its powers and duties, and to amend and control its process and
orders to make them conform to law and justice. [§ 12-1-7].

Alabama law permits the removal of administration of estates and guardianships from
probate courts to circuit courts at any time before final settlement by a petition of removal. [§§
12-11-41 and 26-2-2]. Under this authority concurrent jurisdiction over administration of estates
and guardianships may exist among the probate courts, circuit courts, and other courts having
appropriate jurisdiction.

Unless a law expressly establishes a specific procedure for probate courts, their rules of
evidence, of pleading and practice, and their modes of obtaining evidence by oral examination or
by deposition, of compelling attendance of witnesses, and of enforcing orders, and judgments must
conform to the procedures applicable to circuit courts so far as the same are appropriate. [§ 12-
13-12]. The Alabama Rules of Civil Procedure became applicable in probate court so far as the
application is appropriate and except as otherwise provided by statute. (By order Alabama
Supreme Court, effective January 1, 2013).

The judge of probate is empowered to take, certify, and administer oaths unless the
affidavit is expressly restricted to some other officer, to issue process of garnishment upon decrees
for money in the court of probate, to cause juries to be empaneled and sworn for cases permitting
or requiring juries, and to appoint guardians and administrators ad litem when necessary. He has
authority and responsibility to employ a chief clerk and other clerks deemed necessary for
performing the duties of the office and authority to authorize persons to make abstracts of titles of
lands sold at judicial sales. [§§ 12-13-40, 12-13-7]. The judge of probate in all counties has
functions in the electoral process.4 The judge of probate has licensing functions except in those
counties that have provided for a licensing commissioner by local law. The judge is also
designated as a conservator of the peace in his respective county. [§ 12-13-39].

When there is no contest, the judge of probate may delegate all ministerial and judicial acts
within his authority, except hearing and granting writs of habeas corpus, to the chief clerk.

4
See Alabama Election Handbook, 18th ed., developed by the Alabama Law Institute, for a listing
of specific duties.
10
 Legal Framework of the Office of the Judge of Probate

However, all acts of the office staff are performed in the name of the judge unless there is a vacancy
in the office. [§ 12-13-14].

D. ETHICS ACT5

In 1973, the Alabama Legislature passed the Alabama Ethics Act. It has been revised many
times since then and the frequency of revisions has increased in recent years The law defines
"Public Official" as including, in pertinent part, “[a]ny person elected to public office, whether or
not that person has taken office, by the vote of the people at state, county, or municipal level of
government or their instrumentalities, including governmental corporations…” [§ 36-25-1]. The
law also defines a “Public Employee” as including, in pertinent part, “[a]ny person employed at
the state, county, or municipal level of government or their instrumentalities….”. [§ 36-25-1]. As
a result, judges of probate and county employees are required to comply with the provisions of this
law.

The purpose and objective of the Alabama Ethics Act, is to prevent conflicts of interest and
thus instill public confidence in the elected and appointed officials covered by the law. [§ 36-25-
2]. The Ethics Act is supported by Ala. Const. § 101, which prohibits any county official from
accepting any fee, money, office, appointment, employment, reward, or thing of value in exchange
for influencing legislation.

Basically, the Ethics Act contains two broad categories of provisions. The first category
relates to disclosure, and the second category is a set of ethical principles of conduct with which a
public official and public employee must comply. All judges of probate, and many county
employees, must file an annual "Statement of Economic Interest" with the Alabama Ethics
Commission by April 30 of each year. [§ 36-25-14]. Any candidate for the office of judge of
probate must file a financial disclosure statement simultaneously with the date he or she files his
or her qualifying papers with the appropriate election official. [§ 36-25-15]. Failure to do so can
result in removal from the ballot. [§ 36-25-15(c)].

Some judges of probate and all county employees who file statements of economic interests
must also attend mandatory training on the Ethics law. [See §§ 36-25-4.2(a)(4) and 36-25-4.2(e)].
This training can be done by accessing the Ethics Commission training video on their website at:
www.ethics.alabama.gov.

5
The structure for the information on the Ethics Act in this chapter was provided by Jim Sumner,
former Director of the Alabama Ethics Commission.
11
Handbook for Probate Judges

The Statement of Economic Interests package may be sent to the county soon after the first
of the calendar year with a form to be copied and distributed to each filing public official and
employee. The form can also be filled out on the Ethics Commission’s website and printed out for
mailing before April 30.

The information contained in an SEI becomes a public document once it is received in the
Commission office and is therefore available to the general public and to the media via through
the commission’s website.

A brief review of the ethical principles of conduct with which a public official such as a
judge of probate (and a public employee) must comply is also important. Those key principles are
below:

(1) A judge of probate may not use his/her official position to obtain personal gain for
self, family, or business. [§ 36-25-5].

(2) A judge of probate may accept, solicit, or receive contributions only for use in
influencing the outcome of an election, and only if he or she follows the procedures of the Fair
Campaign Practices Act.6 [§§ 36-25-6 and 17-5-7(b)(1)].

• A judge of probate may not accept, solicit, or receive contributions more than
twelve months before an election in which he intends to be a candidate. [§ 17-5-
7(b)(2)].

• A judge of probate may solicit contributions for up to 120 days after an election to
pay off campaign debts, although he or she must follow all the rules of Alabama
law in doing so. [§ 17-5-7(b)(3)].

• A judge of probate shall not accept, solicit, or receive contributions with the intent
of corruptly influencing official actions. [§ 17-5-7(c)(2)].

• A judge of probate may not use contributions for personal use. [§ 36-25-6].

(3) A judge of probate is prohibited from soliciting or accepting any money (other than
his regular pay) for advice or assistance on matters pertaining to the Legislature, lobbying a
legislative body, an executive department, or any public regulatory agency or other body of which

6
See § 17-5-1 et seq.
12
 Legal Framework of the Office of the Judge of Probate

he or she is a member. [§ 36-25-7(d)].

(4) A judge of probate may not use confidential information obtained as a result of his
or her elected position to obtain financial gain for the judge of probate or any other person. [§ 36-
25-8].

(5) A judge of probate may not serve as a member of a regulatory agency that regulates
any business with which he or she is associated unless specifically provided by law. [§ 36-25-
9(a)].

(6) A judge of probate may not vote or participate in any matter in which that judge of
probate or a family member has any financial gain or interest. [§ 36-25-9(c)].

(7) If a judge of probate, a family member, or a business with which either is associated,
represents a client, for a fee, before any state, county, or municipal agency, board, or department,
the Alabama Ethics Commission must be notified within ten days after the first day of such
appearance. [§ 36-25-10].

(8) A judge of probate, member of his/her household, or a business with which either
is associated, may contract to do work for state, county, or municipal governments only if he or
she participates in competitive bidding in which there are no outside negotiations, and only if a
copy of the contract is filed with the Alabama Ethics Commission within ten days after the contract
has been entered into. [§ 36-25-11].

(9) A judge of probate may not solicit or accept anything of value (other than in the
ordinary course of business) from a person associated with a business which is regulated by the
agency, board or commission on which the judge of probate serves. [§ 36-25-12].

(10) No judge of probate or family member of the judge of probate shall solicit or receive
a thing of value from a lobbyist, subordinate of a lobbyist, or principal. [§ 36-25-5.1].

(11) A lobbyist, or principal may offer or provide and a judge of probate may receive a
“thing of value.” The definition of “thing of value” includes a number of exceptions that judges of
probate and public employees should review. For the list of exceptions, see § 36-25-1(34)(b)(1-
18).

(12) One exception to “thing of value” is for items of de minimis value. “De minimis”
value is defined as: “a value twenty-five dollars ($25) or less per occasion and an aggregate of

13
Handbook for Probate Judges

fifty dollars ($50) or less in a calendar year from any single provider, or such other amounts as
may be prescribed by the Ethics Commission from time to time by rule pursuant to the
Administrative Procedure Act or adjusted each four years from the date of the enactment of this
amendatory act to reflect any increase in the cost of living as indicated by the United States
Department of Labor Consumer Price Index or any succeeding equivalent index.”

(13) A judge of probate may not solicit a thing of value from a person or business he or she
has authority over (one he or she “inspects, regulates, or supervises”) or who has a matter pending
before him or her. [§ 36-25-5(e).]

(14) A judge of probate may not use public equipment or property for private benefit or
business benefit. [§§ 36-25-5(c) and –(d).]

(15) A judge of probate may not solicit a lobbyist for anything even if it is not a “thing of
value”.

(16) A judge of probate or former judge of probate may not serve for a fee as a lobbyist
or otherwise represent a client before any agency, commission, or department of which he or she
has been a member within the past two years. [§ 36-25-13.]

(17) A judge of probate also may not represent a client or employer before any government
body at the state or local level. [§ 36-25-23(a).]

(14) The Ethics Act also includes a provision that requires each judge of probate and
spouse of each judge of probate who is employed by, or who has a contract with the state or federal
government, to notify the Ethics Commission of such employment within 30 days of beginning
employment or within 30 days of the beginning of the contract. [See § 36-25-5.2(b)]. The filing
has certain requirements which are listed in Section 36-25-5.2(c)(1-6). Each judge of probate or
the spouse of the judge of probate is responsible for promptly notifying the Ethics Commission of
any changes to the terms of his or her employment. [See § 36-25-5.2(d)].

Like any other citizen, judges of probate may request an advisory opinion from the
Alabama Ethics Commission on any real or hypothetical situation that may pertain to the Ethics
Law. Additionally, they may request that an inquiry be made into any allegations or complaints
concerning actions they believe are in violation of the ethics law. [§ 36-25-4].

Judges of probate have a duty to file a report with the Ethics Commission on any matters
which come to their attention in their official capacity which constitute a violation of the Ethics

14
 Legal Framework of the Office of the Judge of Probate

Law. [§ 36-25-17].

E. LIMITATIONS UNDER ALABAMA'S

TAXPAYER AND CITIZEN PROTECTION ACT

a. Limitations on Business Transactions Conducted by Unauthorized Aliens. An alien

not lawfully present in the United States shall not enter into or attempt to enter into a public records
transaction with the state or a political subdivision of the state and no person shall enter into a
public transaction or attempt to enter into a business transaction on behalf of an alien not lawfully
present in the United States. [§ 31-13-29(b)].

Any person entering into a public records transaction or attempting to enter into a public
records transaction with this state or a political subdivision of this state shall be required to
demonstrate his or her United States citizenship, or if he or she is an alien, his or her lawful
presence in the United States to the person conducting the public records transaction on behalf of
this state or a political subdivision of this state. [§ 31-13-29(c)]. United States citizenship shall
be demonstrated by presentation of one of the documents listed as follows:

(1) The applicant's driver's license or nondriver's identification card issued by

the division of motor vehicles or the equivalent governmental agency of another
state within the United States if the agency indicates on the applicant's driver's
license or nondriver's identification card that the person has provided satisfactory
proof of United States citizenship.
(2) The applicant's birth certificate that verifies United States citizenship to the
satisfaction of the county election officer or Secretary of State.
(3) Pertinent pages of the applicant's United States valid or expired passport
identifying the applicant and the applicant's passport number, or presentation to the
county election officer of the applicant's United States passport.
(4) The applicant's United States naturalization documents or the number of the
certificate of naturalization. If only the number of the certificate of naturalization
is provided, the applicant shall not be included in the registration rolls until the
number of the certificate of naturalization is verified with the United States Bureau
of Citizenship and Immigration Services by the county election officer or the
Secretary of State, pursuant to 8 U.S.C. § 1373(c).
(5) Other documents or methods of proof of United States citizenship issued by
the federal government pursuant to the Immigration and Nationality Act of 1952,
and amendments thereto.

15
Handbook for Probate Judges

(6) The applicant’s Bureau of Indian Affairs card number, tribal treaty card
number, or tribal enrollment number.
(7) The applicant’s consular report of birth abroad of a citizen of the United
States of America.
(8) The applicant’s certificate of citizenship issued by the United States
Citizenship and Immigration Services.
(9) The applicant’s certification of report of birth issued by the United States
Department of State.
(10) The applicant’s American Indian card, with KIC classification, issued by
the United States Department of Homeland Security.
(11) The applicant’s final adoption decree showing the applicant’s name and
United States birthplace.
(12) The applicant’s official United States military record of service showing the
applicant’s place of birth in the United States.
(13) An extract from a United States hospital record of birth created at the time
of the applicant’s birth indicating the applicant’s place of birth in the United States.

[§ 31-13-28(k)]. For purposes of this section, "public records transaction” means applying for or
renewing a motor vehicle license plate, applying for or renewing a driver's license or nondriver
identification card, or applying for or renewing a business license, applying for or renewing a
commercial license or professional license. Public records transaction does not include applying
for a marriage license or any transaction relating to housing under Title or the ownership of real
property, including the payment of property taxes, or the payment of any other tax to the state or
a political subdivision thereof, or any other transaction. [§ 31-13-29(a)].

An agency of this state or a county, city, town, or other political subdivision of this state
may not consider race, color, or national origin in the enforcement of this section except to the
extent permitted by the United States Constitution or the Constitution of Alabama of 1901. [§ 31-
13-29(e)]. Furthermore, an alien's immigration status shall be determined by verification of the
alien's immigration status with the federal government pursuant to 8 U.S.C. § 1373(c), and an
official of this state or political subdivision of this state shall not attempt to independently make a
final determination of whether an alien is lawfully present in the United States. [§ 31-13-29(f)].
Violation of this section by an alien not lawfully present or by a person knowingly acting on behalf
of an alien not lawfully present is a Class C felony. [§ 31-13-29(d)].

b. Information Relating to Immigration Status. Officials or agencies of the state or any

political subdivision thereof, including, but not limited to, an officer of a court of the state, may
not be prohibited or in any way be restricted from sending, receiving, or maintaining information

16
 Legal Framework of the Office of the Judge of Probate

relating to the immigration status, lawful or unlawful, of an individual or exchanging that

information with any other federal, state, or local governmental entity for the following:

(1) Determining the eligibility for any public benefit, service, or license
provided by any state, local, or other political subdivision of this state.
(2) Verifying any claim of residence or domicile if determination of residence
or domicile is required under the laws of this state or a judicial order issued pursuant
to a civil or criminal proceeding of this state.
(3) Pursuant to 8 U.S.C. § 1373 and 8 U.S.C. § 1644.

[§ 31-13-6(c)].

c. Enforcement of and Compliance with State Immigration Laws. All state officials,
agencies, and personnel, including, but not limited to, an officer of a court of this state, shall fully
comply with and, to the full extent permitted by law, support the enforcement of this chapter. [§
31-13-6(b)].

No official or agency of this state or any political subdivision thereof, including, but not
limited to, an officer of a court of this state, may adopt a policy or practice that limits or restricts
the enforcement of this chapter to less than the full extent permitted by this chapter or that in any
way limits communication between its officers or officials in furtherance of the enforcement of
this chapter. If, in the judgment of the Attorney General of Alabama, an official or agency of this
state or any political subdivision thereof, including, but not limited to, an officer of a court of this
state, is in violation of this subsection, the Attorney General shall report any violation of this
subsection to the Governor and the state Comptroller and that agency or political subdivision shall
not be eligible to receive any funds, grants, or appropriations from the State of Alabama until such
violation has ceased and the Attorney General has so certified. [§ 31-13-6(a)].

Every person working for the State of Alabama or a political subdivision thereof, including,
but not limited to, a law enforcement agency in the State of Alabama or a political subdivision
thereof, shall have a duty to report violations of this section of which the person has knowledge.
Any person who willfully fails to report any violation of this section when the person knows that
this section is being violated shall be guilty of obstructing governmental operations as defined in
Section 13A-10-2. [§ 31-13-6(f)].

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Handbook for Probate Judges

F. EX OFFICIO DUTIES OF THE

JUDGE OF PROBATE

a. Chairman of the Governing Body. Currently only in thirteen7 of Alabama's sixty-seven

counties is the judge of probate a member of the county governing body, which is now called the
county commission in all counties that do not provide otherwise by local law. [§ 11-3-1]. In these
counties the judge of probate is not only the chairman of the governing body, but is also responsible
for recording the official proceedings of the county commission. [§ 11-3-18]. In those counties
in which the judge of probate serves as chairman of the county commission, he is likewise
responsible for supervising the maintenance of the county fiscal records, and must vote on issues
before the county commission in case of a tie vote by the commissioners. [§§ 11-3-20, 11-8-7,
and 11-8-8].

b. Miscellaneous Duties. Other duties have been assigned to the judge of probate in
various counties by local acts. Miscellaneous functions imposed on various judges include those
of purchasing agent, forest warden, custodian of county funds, county treasurer, and membership
on various boards.

Additional duties have been assigned by several county governing bodies. Ex officio duties
such as custodian of county funds, membership on county hospital boards, county library boards,
civil defense agencies, and industrial development boards, and purchasing agent are fairly
common, especially in counties in which the judge of probate is presiding officer of the county
governing body.

G. ELECTION, TERM, QUALIFICATIONS,

VACANCIES AND REMOVAL

a. Election and Term.8 The judge of probate is elected by the qualified electors in each
county for a term of six years (i.e., 2012, 2018, etc.). The term of office begins on the first Monday
after the second Tuesday in January following his election, and continues until his successor is
elected and qualified. [§ 17-14-6, Ala. Const. amend. 328, § 6.15; § 36-3-2].

7
Blount, Cherokee, Choctaw, Cleburne, Dallas, Franklin, Geneva, Hale, Henty, Lamar, Lee,
Monroe, and Tuscaloosa.
8
See Alabama Election Handbook, 18th ed. published by the Alabama Law Institute for additional
details.
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 Legal Framework of the Office of the Judge of Probate

b. Qualifications. A judge of probate must be a citizen of the state and must have resided
in the county for which he was elected or appointed for one year preceding the election or
appointment. [§ 12-13-31]. Also, all counties in which “equity jurisdiction has been conferred on
the judge of probate or is vested in his office by general or local law” have the requirement that
the judge of probate be “learned in the law” in addition to all other qualification. [First Special
Session, 1964, Act. No. 99]

c. Vacancies. Vacancies in the office of the judge of probate are filled by gubernatorial
appointment. Appointees hold office until the election and qualification of their successors. [§
17-14-6, Ala. Const. amend. 328, § 6.14].

d. Removal. Judges of probate may be removed from the office by impeachment. The
office is also vacated: when the judge of probate accepts another state, county, or municipal office;
when the judge is sentenced to the penitentiary; or when the judge is declared insane. [§§ 36-9-
2, 3,4 and 36-11-1]. Amendment 328, § 6.19 of the Alabama Constitution further provides that a
judge of probate who has been indicted as a felon is disqualified from acting as a judge.

H. SPECIAL JUDGE OF PROBATE

When a judge of probate has a personal interest in a case before the probate court or is
otherwise incompetent to perform his or her duties as judge of probate, either the judge of probate
or the chief clerk must certify that fact to the Chief Justice of the Alabama Supreme Court.
Thereafter, the Supreme Court will appoint a person possessing the qualifications of a judge of
probate to act as special judge of probate. If the special judge of probate fails or refuses to act, or,
before concluding a matter or proceeding, dies or otherwise becomes incompetent, or fails or
refuses to continue to act, and the disqualification of the ordinary judge of probate continues, the
Alabama Supreme Court, upon these facts being certified to it, will appoint another special judge
of like qualification. [§§ 12-1-12, 12-13-37, and 12-13-38].

Also, if there is a need for a special judge of probate, the Supreme Court may appoint a
special judge for temporary service. The appointment confers on the special judge all of the
powers, authority and jurisdiction of the judgeship to which he or she is appointed. The special
judge appointed under this section is entitled to compensation and expenses as provided by law.
[§ 12-1-14].

Also, the presiding circuit court judge may appoint a special judge of probate for temporary
service. “Temporary service” means no more than 180 consecutive days. However, the special
judge may be reappointed for more than one period of 180 consecutive days. The appointment

19
Handbook for Probate Judges

confers on the special judge all of the powers, authority and jurisdiction of the judgeship to which
he or she is appointed. However, a special judge appointed under this section does not receive any
compensation for his or her services. [§ 12-1-14.1].

Although not required by statute, the letter of appointment should be placed on file in the
probate office for permanent keeping.

I. BONDS

Before persons elected to the office of judge of probate may assume the duties of the office,
they must execute a surety bond. The bond is based on a percentage of the total annual collection
recorded in the latest audit report for each office published at least four months prior to the date
the bond is required to be filed. The table for computing the amount of bond is as follows:

TABLE FOR COMPUTING AMOUNT OF BOND

Annual Collections But Not Amount of Of Excess

Over Over Bond Over

Zero $250,000 $25,000 ________

250,000 $1,000,000 $25,000 + 5% $250,000
$1,000,000 ________ $62,500 + 1% $1,000,000

[§ 12-13-33]. This bond serves as security against neglect or omission of duty. [§ 36-5-18].

J. OATH

The judge must subscribe as well to the following oath before assuming the duties of the
office:

"l, ..., solemnly swear (or affirm, as the case may be), that I will support the
Constitution of the United States, and the Constitution of the State of Alabama, so
long as I continue a citizen thereof; and that I will faithfully and honestly discharge
the duties of the office upon which I am about to enter, to the best of my ability.
So help me God."

[Ala. Const. art. XVI, § 279.] The oath must be filed in the office of the clerk of the circuit court
in the county. [§ 36-4-3]. On assuming the duties of the office, the judge must obtain a seal of
office. [§ 12-13-35].

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 Legal Framework of the Office of the Judge of Probate

Judges of probate are often called upon to administer oaths of office for various municipal,
county and state officials.

K. WHEN COURT DEEMED OPEN AND

WHERE CASES MAY BE HEARD

The probate court is to be open, except on Saturdays, Sundays, and legal holidays, with
authority to do all things in relation to granting letters testamentary or of administration or
guardianship and making all other necessary orders that are grantable as a matter of course. [§ 12-
13-3].

The probate court may try cases, sign and issue orders and hear and determine any matter,
case or proceeding at the county seat or any other place in the county provided by law. [§ 12-13-
4]. Moreover, in those counties with two county seats, such as Coffee County (1907 Ala. Acts
140), and Jefferson County (1915 Ala. Acts 490), two probate offices must be established, and a
set of records must be maintained in each office. Judges in counties with such arrangements should
review the appropriate act for office organization and terms of court.

L. JUDGE OF PROBATE FEES

a. General Fees. Although the present law sets out a schedule of fees at length, it
nonetheless contains a statement expressly providing that it should not repeal, amend nor affect
any local law or general law of local application prescribing fees for judges of probate.
Consequently, any local legislation prescribing fees for judges of probate remains in effect. For
judges of probate, in general, the act provides that the following fees for service in the probate
offices shall be charged and paid into the county treasury or to the judge of probate, as may be
authorized or required by law. [§ 12-19-90]. Probate court fees must be collected at the time a
pleading is filed or at the termination of the suit, whichever the court decides. § 12-19-43(a)].
Probate courts may also require security deposits to cover unanticipated costs. [§ 12-19-43(b)].

b. UCC Fees. In addition to the fees set out in § 12-19-90, judges of probate are entitled
to a fee for filing in their offices financing statements or other records recording a creditor’s
security interest in consumer goods of a debtor. The fee is $20.00 if the record is in writing and is
1 or 2 pages and $2.00 for each additional page. The fee is $15.00 if the record is communicated
by another medium authorized by filing-office rule. The number of names to be indexed does not
affect the filing fee. [§ 7-9A-525].

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Handbook for Probate Judges

The fee for filing and indexing an initial financing statement for a manufactured-housing
transaction is $10.00 if the financing statement indicates that it is filed in connection with a
manufactured-home transaction. There is no filing fee for the filing of a termination statement.
The fee for responding to an information request, including for a certificate showing whether there
is on file any financing statement naming a particular debtor, is $20.00 if the request is made in
writing and $15.00 if the request is made by another medium authorized by the filing office. These
fees apply to each debtor named in the submitted request where the request seeks information on
more than one debtor. Also, an additional $100.00 fee is required when the request seeks expedited
response by the Secretary of State. [§ 7-9A-525].

No fee is required with respect to a mortgage which is effective as a financing statement

filed as a fixture filing or as a financing statement covering as-extracted collateral or timber to be
cut under Section 7-9A-502(c). However, the recording and satisfaction fees that otherwise would
be applicable to the mortgage apply.

An additional fee of $5.00 is applicable to all of the above fees where the filing or request
is submitted on a non-standard form. From January1, 2002 through December 31, 2011, if the
first mailing address of the debtor or debtors on the initial finance statement is located in a county
in Alabama, $5.00 of the filing fee associated with the filing of the financing statement in the office
of the Secretary of State shall be rebated to the judge of probate of the county where the address
is located. After December 31, 2011 this rebate ended. [§ 7-9A-525]. The judge of probate, in
addition to the fees, must collect a mortgage tax of fifteen cents per $100.00 (or fraction thereof)
of the secured debt. [§ 40-22-2].

c. Filing Fees for All Entities. In lieu of all other charges and fees the judge of probate
shall charge and collect the judge of probate shall collect the following fees when the filing the
instruments described below are delivered to him for filing:

(1), Certificate of formation and restated certificate of formation, $100,00 for

the State of Alabama, $50.00 for the judge of probate.
(2) Amendments to certificate of formation, $50.00 to the State of Alabama,
$25.00 to the judge of probate.
(3) Name reservations filed less than 24 hours, $25.00 for the State of Alabama.
For naming reservations filed 24 hours or more, $10.00 for the State of Alabama.
(4) Certificate of termination, $100.00 for the State of Alabama, $50.00 for the
judge of probate.
(5) Certificate of merger; articles of consolidation or share exchange, $100.00
for the State of Alabama, $50.00 for the judge of probate.

22
 Legal Framework of the Office of the Judge of Probate

(6) Foreign entity registration including registration of foreign limited liability

partnership, $150.00 for the State of Alabama.
(7) Certificate of existence filed less than 24 hours, $25.00 for the State of
Alabama. For certificate of existences filed 24 hours or more, $10.00 for the State
of Alabama.
(8) Registered limited liability partnership registration, $100.00 for the State of
Alabama, $50.00 for the judge of probate.
(9) Registered limited liability partnership annual report, $100.00 for the State
of Alabama.
(10) Partnership statement (filing or certifying), $25.00 for the State of Alabama,
$25.00 for the judge of probate.
(11) Any other filing instrument required or permitted to be filed under this title,
$25.00 for the State of Alabama. $25.00 for the judge of probate.

[§ 10A-11-4.31]. Note: This section was derived from the prior Alabama Business Corporation
Act § 10-2B-1.22, bringing into a single section the various filing fee provisions previous scattered
throughout Title 10 and rationalizes those fees so that the fee for filing a certificate of formation
is the same without regard to the type of entity being formed.

When appropriate, two checks shall accompany a filing instrument, one payable to the
judge of probate for all charges for the judge of probate, and one payable to the State of Alabama
covering all charges for the Secretary of State. In the case of any filing instrument delivered for
filing to the judge of probate accompanied by a check for the charges to the Secretary of State, the
check for the secretary of State shall be forwarded by the judge of probate to the Secretary of State.
In the case of any filing instrument delivered for filing to the Secretary of State accompanied by a
check for the judge of probate, the check for the judge of probate shall be forwarded by the
Secretary of State to the judge of probate. [§ 10A-1-4.31(b)].

Additionally, the judge of probate shall charge and collect $1.50 per page for furnishing a
certified copy of any filing instrument related to an entity and $5.00 for the certificate and affixing
a seal to the documents. [§ 10A-1-4.31(h)].

d. Sale of Land. The judge of probate is entitled to a fee of $5.00 for each notice to a
delinquent property owner to show cause why a decree of sale should not be rendered and for each
decree of sale.[§ 40-10-27].

e. Posting of Fee Lists. Judges of probate must post a complete list of all fees allowed by
law to them. This list must be posted in a conspicuous place in the office and copies must be

23
Handbook for Probate Judges

furnished on application. Judges who do not comply with this requirement are not authorized to
collect or receive fees for their services during time the list is not posted. [§ 12-19-40].

M. COSTS OF THE PROBATE OFFICE

The funds for financing the office of the judge of probate in counties in which the judge is
compensated by fees are obtained from a percentage of fees generated by the probate office and
paid into the county treasury as provided by local act. Salaries for employees are generally paid
from these generated fees. Expenses for office equipment and supplies are paid from county
commission funds. [§ 11-8-13]. A few local acts have been passed to authorize the payment of
the chief clerks, or a similar official's salary from public funds.

In counties in which the judge has been placed on a salary, all expenditures are made from
monies provided by the county general fund. [§ 12-13-20]. The standard fees, commissions, and
allowances continue to be collected in most counties but they are deposited in the county or state
treasury. The county commission is charged with the responsibility of providing proper utilities
to all offices in the courthouse, including the probate office. [§ 11-12-13].

N. JUDGES OF PROBATE COMPENSATION

Sections 11-2A-1 through 8 make substantial alterations to the system of compensation for
judges of probate. The Act places counties into categories based on population as of the last census
as follows:

Category Population

1 In excess of 450,000
2 350,001 to 449,999
3 200,001 to 350,000
4 50,001 to 200,000
5 19,000 to 50,000
6 Less than 19,000

The last decennial census as of this writing was the 2010 Census. Using the 2010 census,
the counties are categorized as follows:

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 Legal Framework of the Office of the Judge of Probate

Category Counties

1 Jefferson

2 Mobile

3 Madison, Montgomery

4 Baldwin, Blount, Calhoun, Colbert, Cullman, DeKalb,

Elmore, Etowah, Houston, Jackson, Lauderdale, Lee,
Limestone, Marshall, Morgan, Shelby, St. Clair, Talladega,
Tuscaloosa, Walker

5 Autauga, Barbour, Bibb, Butler, Chambers, Cherokee,

Chilton, Clarke, Coffee, Covington, Dale, Dallas, Escambia,
Franklin, Geneva, Lawrence, Macon, Marengo, Marion,
Monroe, Pickens, Pike, Randolph, Russell, Tallapoosa,
Winston

6 Bullock, Choctaw, Clay, Cleburne, Conecuh, Coosa,

Crenshaw, Fayette, Greene, Hale, Henry, Lamar, Lowndes,
Perry, Sumter, Washington, Wilcox

[County and City Data Book]. Of course, subsequent censuses will alter the category into which
a county will fall.

Effective October 1, 2000, the minimum compensation for judges of probate in Categories
1 and 2 shall be provided by local law. The annual compensation for judges of probate in Category
3 counties shall be increased by 20 percent effective Oct. 1, 2001, if their compensation has not
been increased by general or local law during the period from Oct. 1, 1996 to Oct. 1, 2001. Judges
of probate in Category 4 shall have a minimum compensation of that proscribed by general law as
of September 30, 2000 plus 20 percent. Judges of probate in category 5 shall have a minimum
compensation of that proscribed by general law as of September 30, 2000 plus 17 percent. Judges
of probate in category 6 shall have a minimum compensation of that proscribed by general law as
of September 30, 2000 plus 15 percent. [§ 11-2A-2(2)].

In addition, Chapter 11-2A increases the compensation for some judges of probate
according to their duties. Any judge of probate in Category 4, 5, or 6 shall receive an additional

25
Handbook for Probate Judges

$2,500 if he or she is required to serve as chairperson of the county commission. Any judge of
probate who is charged by law with the administration of a “one-stop” tag program shall receive
additional compensation of at least $3,000. [§ 11-2A-3].

Beginning with the fiscal year commencing on October 1, 2001, judges of probate shall be
entitled to the same uniform increases in compensation, including cost-of-living increases,
longevity increases, merit raises, and bonuses that are granted to county employees by the county
commission at the time of the approval of the county budget. The increases shall be in the same
amount or percentage as the amount or percentage provided to county employees. [§ 11-2A-4].

The act is not applicable to Barbour, Tuscaloosa, Cullman, St. Clair, Pike, Henry, Coffee,
Russell, Geneva, Dale, or Fayette counties unless approved by a resolution of the respective county
commission. [§ 11-2A-7(b)]. Sections 11-2A-2 and 11-2A-3 are not applicable in Pickens County
unless adopted by the county commission. [§ 11-2A-7(c)]. The county governing body of any
county may exempt the county from the provisions of Chapter 11-2A provided the exemption
encompasses all of §§ 11-2A-2, 11-2A-3, and 12-19-90. [§ 11-2A-2(7)]. The increases in
compensation are not applicable to any judge of probate whose salary is greater than the minimum
authorized by general law plus the increase authorized by the act. [§ 11-2A-6]. The Act is not
applicable to any judge of probate whose salary is tied to a state elected official or to those judges
of probate whose salaries are determined by local law and are greater than those authorized by the
Act. [§ 11-2A-7].

The general law at the time of the passage of Act 2000-108 provided as follows: In the
event a judge of probate who is on a salary serves as chairman of the county commission, he is not
to receive less than $55,000 in total compensation. Similarly, no judge of probate who is on a
salary and who does not serve as chairman of the county commission is to receive total
compensation of less than $52,500 in total compensation. This law in no way affects those judges
of probate who in the first instance earn more than $55,000 a year or earn more than $52,500 in
the second instance. Any funds needed to ensure that the judge of probate receives his total
compensation shall be paid out of the county's general fund. Furthermore, these provisions in no
way affect the compensation of judges of probate of counties where they are compensated on the
basis of the fee system. [§ 12-13-20]. Judges compensated on a fee basis may now receive a net
annual income of more than $75,000 from fees. [§ 11-2A-8 (removing cap on fee-based salaries)].

Additionally, the judge of probate of every county is entitled to receive from the county
treasury payment for expenses, including but not limited to, membership dues and other expenses,
incurred in attending state or national conferences, schools and other functions including but not
limited to, the personnel in his office, pertaining to his official position as judge of probate. This

26
 Legal Framework of the Office of the Judge of Probate

payment is in addition to all other compensation and allowances now provided by law. Such
payments are paid on warrants approved by the county commissions of each county drawn on any
funds in the county treasury not otherwise appropriated. [§ 12-13-19].

Constitutional amendments have been adopted to permit the legislature to "fix, alter, and
regulate" the fees, commission, percentages, allowances or salary, and to provide the method of
compensation to the judge of probate in many counties.

O. STAFFING THE PROBATE OFFICE

The judge of probate is permitted to employ from fees derived by his office a chief clerk9
and such other clerks as he deems necessary. This practice generally exists in counties in which
the judge is paid from fees, although local acts have been passed to permit partial payments from
public funds in a few such counties.

Judges who have been placed on a straight salary receive an allowance for clerical
assistance from public funds. Some of the acts fixing the clerical allowance also include the
number of clerks which may be employed. However, it is more common for the act to specify the
maximum allowance for clerical assistance. A few such acts have permitted the county governing
body to fix the maximum.

No general law has been enacted pertaining to the number of clerks, deputies, and assistants
or the amount of the salary for persons employed in the judge of probate's office. The number of
employees varies among the several counties according to the work load. Except in counties with
a merit system, the number of employees and salary are usually fixed by the judge, who also has
complete authority to employ and dismiss the employees in the probate office.10 Under the merit
system, the number of employees and salary is determined by the county commission.

Note: Please see page 19, entitled "Limitations Under Alabama Taxpayer and Citizen Protection
Act (Immigration laws)" for additional requirements for staffing the probate office.

9
While not specifically required, a judge of probate is advised to make the appointment of a “chief
clerk” in writing to avoid any future unforeseen difficulties.
10
Merit systems have been established in several counties. Examples include: Geneva, Jefferson,
Marion, and Tuscaloosa counties. Montgomery County has a hybrid system, with the chief clerk
and executive assistant serving at the pleasure of the judge, while the judge’s other employees are
under the merit system.
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Handbook for Probate Judges

P. CHIEF CLERK

a. Duties. The judge of probate has the authority and the responsibility to employ a chief
clerk and other clerks deemed necessary for performing the duties of the office and to authorize
person to make abstracts of titles of land sold at judicial sale. [§ 12-13-40]. The chief clerk shall
have the following duties:
(1) To issue letters testamentary, or administration and of guardianship, when there is
no contest.
(2) To administer oaths relating to the business of the court and to take and certify
acknowledgments and poof of instruments authorized to be recorded.
(3) To solemnize matrimony, approve bonds and appoint guardians ad litem.
(4) To admit wills to probate and records and to pass and allow accounts of executors,
administrators and guardians, when there is no contest.
(5) To do all other acts and things and perform all other duties, ministerial and judicial,
when there is no contest, that the judge of probate may do and perform.
All these duties must be performed in the name of the judge of probate except when there
is a vacancy in that office. [§ 12-13-14]. Furthermore, the clerk or the judge of probate may take
acknowledgments of a conveyance in the name of the judge. [§ 35-4-24; Pioneer Sav. & Loan Co.
v. Barclay, 19 So. 308 (Ala. 1896)].

The satisfaction of a mortgage must be witnessed by the judge of probate or his clerk if
such entry is requested in writing. [§ 35-10-27]. Requirement of attestation by the judge or clerk
is designed to prevent unauthorized or fraudulent cancellations. [Lewis v. Cannon, 113 So. 577
(Ala. 1927)].

b. Oath and Bond. Prior to assuming his or her duties, the chief clerk must take oath and
give a bond with surety payable to the judge of probate for any act of misfeasance or malfeasance
of the chief clerk while performing his or her duties of office. The bond must be approved by the
judge of probate, filed and recorded in the office of the clerk of the circuit court of that county. [§
12-13-13].

c. Restrictions of the Types of Duties Performed By Chief Clerk. No judge of probate or

clerk shall prepare or assist in the preparation of any paper, document or instrument which is to be
heard or determined by the judge of probate or which might become a subject of controversy before
the judge. However, the judge or clerk may prepare or assist in the preparation of
acknowledgments and proof of conveyances, affidavits, oath, affirmations or any instrument which
by law is required to be prepared by such judge. [§ 12-13-16].

28
 Legal Framework of the Office of the Judge of Probate

d. Performance of the Duties of the Judge of Probate in the Event of Vacancy.

Whenever a vacancy in the judge of probate's office occurs, the chief clerk shall during such
vacancy and until the qualification of a lawful successor, perform all the duties of that office that
he is authorized to perform when there is no vacancy. Furthermore, the chief clerk may make all
necessary orders for the continuance of cases and proceedings pending in the probate court.

When such duties are performed as a result of the vacancy in the office, the chief clerk
shall perform such duties in his or her own name as the clerk of the probate court.

When a judge of probate has a personal interest in a case for the probate court or is
otherwise incompetent to perform his or her duties as judge of probate, either the judge of probate
or the chief clerk must certify that fact to the Chief justice of the Alabama Supreme Court.
Thereafter, the Supreme Court will appoint a person possessing the qualifications of a judge of
probate to act as a special judge of probate. [§§ 12-1-12, 12-13-37 and 12-13-38].

Also, if there is a need for a special judge of probate, the Supreme Court may appoint a
special judge for temporary service. The appointment confers on the special judge all of the
powers, authority and jurisdiction of the judgeship to which he or she is appointed. The special
judge appointed under this section is entitled to compensation and expenses as provided by law.
[§ 12-1-14].

Also, the presiding circuit court judge may appoint a special judge of probate for temporary
service. “Temporary service” means no more than 180 consecutive days. However, the special
judge may be reappointed for more than one period of 180 consecutive days. The appointment
confers on the special judge all of the powers, authority and jurisdiction of the judgeship to which
he or she is appointed. However, a special judge appointed under this section does not receive any
compensation for his or her services. [§ 12-11-14.1].

The clerk must not practice law in the probate office in which he or she works. [§ 34-3-
14].

e. Salary. The judge of probate is permitted to employ at his own expense a chief clerk
and such other clerks the judge deems necessary to perform the functions of his office. [§ 12-13-
40]. Some local acts have been passed to authorize the payment of the chief clerk or other officials'
salary from public funds. In those counties in which the judge has been placed on a salary,
expenses for the judge of probate's office are provided through the county general fund.

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Handbook for Probate Judges

f. Fiduciary Funds. Every clerk shall prepare in writing a report showing the amount of
all fiduciary funds in the hands of the clerk. The report should designate the name of the owner
and the case or circumstance under which the funds were received. The statement shall be verified.
[§ 19-3-81]. The clerk shall file that report with the judge of probate at the first session of probate
court after January 1st of each year. [§ 19-3-82].

g. Appellate Duties. Most appeals from judgment by probate court are heard by the
Supreme Court or de novo by the Circuit Court. [§ 12-22-20]. Appeals concerning guardianship
[§ 26-2A-36] and adoption [§ 26-10A-26] are heard by the Alabama Court of Civil Appeals. In
addition, orders of commitment are appealed to the circuit court de novo unless the judge of
probate is an attorney, in which case the appeal is to the Alabama Court of Civil Appeals. [§ 22-
52-15]. Cases that are heard by the appellate courts are governed by the Alabama Rules of
Appellate Procedure (ARAP). [§ 12-22-21]. The chief clerk’s appellate duties are governed by
the ARAP. [See ARAP 17 for the duties of clerks].

Jefferson and Mobile counties retain general equity jurisdiction. [§ 43-8-9]. Therefore, all
appeals from those probate courts are heard by the appellate courts, except eminent domain. [§
18-1A-283].

h. Liability for Delayed or Defective Record. If, by reason of negligence or delay by the
clerk or judge of probate, the record on appeal is not delivered to the appellate court in time to be
filed or is so defective that the appellate court cannot proceed on the appeal, the clerk or judge of
probate forfeits to the aggrieved party $200 and is further liable to the party for all damages
sustained by the negligence or delay of the clerk or judge of probate. [§ 12-22-60].

Furthermore, the clerk or judge of probate is liable to the appellee for damages sustained
for taking insufficient surety unless the surety was generally reputed good for the amount.
However, neither the clerk nor the judge of probate is required to receive any one as surety who
refuses to answer an oath as to his sufficiency. [§ 12-22-41].

i. Failure to Deliver Books to Successors in Office. Any clerk or other person in the
judge of probate's office who obtains books, papers, money or other property belonging to the
office and upon vacancy thereof fails or refuses to deliver such property to the lawfully qualified
successor must upon conviction be fined not less than $200. [§ 12-13-18].

30
 III.

THE ADMINISTRATIVE FUNCTIONS OF

THE JUDGE OF PROBATE
A. GENERAL

The duties and responsibilities of the judge of probate are many and varied. Some duties
are administrative in nature, others are judicial, and some of them are even legislative in character.

As judges of probate who have held office previously are well aware, the duties and
responsibilities assigned to them are spread throughout the Code and in some cases are also found
in individual acts. However, many newly elected judges may not be familiar with the multitude
of functions for which they are responsible.

The explanations of various aspects of the office are necessarily general in nature, and
judges should review the provisions of the law for a complete discussion. However, to assist the
judge of probate in finding the applicable provisions, the proper Code citation has been included
for each function discussed. Likewise, the procedures used in carrying out the judges' duties are
so numerous that they can be discussed only briefly. Therefore, each procedural discussion sets
forth the proper section of the Code or the proper act number and year.

B. CODIFICATION OF LOCAL ACTS

In researching their duties judges should keep in mind the fact that provisions on the
probate office may be found not only in the 1975 Code of Alabama but also in the local acts
applicable to their respective counties. Moreover, court decisions interpreting various provisions
of law are important sources of information. Newly elected judges might inquire as to whether
local acts applicable to their counties have been codified recently. The Legislative Services
Agency’s Legal Division has begun to compile local acts. Also, county governing bodies are
permitted to codify local acts every ten years and to publish local acts in a newspaper published
and "at least, partly printed in the county" within 60 days following each session of the legislature.
[§§ 11-13-1 through 2].

C. PENALTIES

A judge of probate is subject to a host of possible penalties for improperly handling the
duties connected with the office. The following are some of the pertinent offenses:
31
Handbook for Probate Judges

(1) Any judge of probate or clerk who prepares or assists in the preparation of any
paper, document, or instrument to be heard by the judge, violating the requirements set forth in
article 1 or chapter 13, is guilty of a misdemeanor and must forfeit $300. One third of the money
is to be paid to state and the remainder paid to the person instituting a civil action in the circuit
court for this penalty. [§ 12-13-16].

(2) A failure by any judge of probate to collect the recording registration tax after filing
for record any mortgages, deeds of trust, or other instrument in the name of a mortgage, is guilty
of a misdemeanor and is subject to a fine of not less than $10 nor more than $100 if convicted. [§
12-13-53].

(3) Mishandling of state or county deposits can result in a misdemeanor conviction and
a fine of not more than $2,500 and removal of any state or county official so charged. [§ 41-14-
16].

(4) Any judge of probate who knowingly receives any other or higher fees than are
allowed by law shall forfeit $50 to be recovered in the name of the person aggrieved. This penalty
shall be no bar to an indictment for extortion. Moreover, a judge of probate who corruptly receives
any fee or item of costs not authorized by law will be, on conviction, fined not less than $100 nor
more than $500, and the grand jury must present an indictment, if justified by the evidence. Upon
such conviction, the office shall be vacated and the fact of such certified to the governor by the
presiding judge. [§ 12-19-47].

D. MAINTAINING RECORDS

The judge of probate is required to preserve all documents, files, papers, and letters,
together with all attachments required by law to be recorded and filed in his office. These records
must be kept in a manner to permit convenient reference. [§§ 12-13-41 and 36-12-2].

Furthermore, uniformity in size and style of records and books must be maintained, and
records must be in ink and on paper of quality sufficient to ensure permanence. [§ 36-12-3].

Unless otherwise provided by law, all records are open to public inspection and, when
requested, the judge must furnish copies of them upon the payment of lawful fees. [§ 12-13-50].
However, the regular copy fee may not be assessed if individuals use personal cameras or other
electronic devices to make a copy of a public record. [Ala. A. G. Opinion No. 2009-706].
Nonetheless, reasonable limitations may be placed upon the public's access to records and the

32
 Administrative Functions of Judge of Probate

public's ability to use personal electronic devices to duplicate records to ensure that the operations
of such actions do not unduly interfere with the operations of the office. [Ala. A. G. Opinion No.
2009-706 and A.G.Opinion No. 92-00154].

Alternatively, the Probate Court may provide access to the general public, via a website, to
the digitized images of probate documents maintained by the Probate Court, without charging a
fee, in addition to providing for courthouse public examination of probate documents.1

Some records, such as records in adoption proceedings are confidential and may only be
disclosed in accordance with the adoption laws. [§§ 26-10-28 and 26-10A-31].

Before recording any document (except federal and state tax liens) as public record with
the probate court that conveys any interest in real or personal property (deeds, mortgages, etc.) or
purports to encumber an interest in real or personal property (e.g., liens), Social Security numbers
and birthdates should be redacted, so as to make that information illegible. [§ 12-13-22]. Any
other document, including military discharge forms, that is filed as public record in the probate
court should be redacted in the same manner. [§ 12-13-22].

Unfortunately, no one title, chapter, article, or section of the Code explains the records
which are maintained by the judge of probate. The listing which follows highlight many of the
records which must be maintained by the judge. A more complete description of records discussed
below are found in the applicable provisions of the Code which are cited at the end of each section.

a. Fee Books. Judges of probate must enter in a fee book all fees received by virtue of the
office, stating for what and from whom it was received. This book must always be available for
public inspection in the judge of probate's office. [§ 12-19-45].

b. Minutes of the Court of Probate. Minutes of all official acts and proceedings in the
court of probate must be kept. Within three months after the act or proceedings, the minutes must
be recorded in a well-bound book. [§ 12-13-41(2)].

c. Court Docket. The judge must keep a well-arranged docket recording the date of issue
and return of all processes, the day set for hearing, the type of notice ordered, and other conditions
of a pending proceeding, plus all fees accruing and to whom they are due. [§ 12-13-41(4)].

1
Official Opinion of Alabama Attorney General Bill Pryor, 2001-004 (Oct. 10, 2000), available at
https://ago.alabama.gov/documents/opin/2001-004.pdf (last visited Dec.14, 2018).
33
Handbook for Probate Judges

d. Sheriff’s Fees. The judge must keep a correct account of all fees accruing to the sheriff
for services rendered in relation to proceedings in the court of probate. The name of the attorney
for the plaintiff must also be entered in this fee book. These fees must be paid to the sheriff on
demand. No final settlement of any estate may be made until the sheriff is paid the fees due. [§
12-13-41 (5 and 6)].

e. Acts, Reports and Digests. The judge of probate must maintain all acts, reports, and
digests furnished by the State. When received, they should be kept available for convenient
reference in either the office of the judge of probate or the county’s bar library if there is one in
the county. [§ 12-13-41(8)].

f. Census Reports. The judge of probate is responsible for providing a suitable and
convenient place in his office for keeping United States census reports. These reports must be
preserved and free access to them must be permitted. [§ 12-13-41(10)].

g. Liens of Judgments and Decrees. A large and well-bound book must be kept for
registering liens of judgments and decrees. In addition, both direct and indirect indexes to these
books must be maintained. [§ 12-13-41(12)].

h. Conveyances. A large, well-bound book must be kept for registration of deeds and
deeds of conveyances and other separate books of like character must be kept for the registration
of mortgages and other instruments to secure payment of debts. [§ 12-13-41(11)].

i. Notices of Adverse Possession. A well-bound book with an index must be maintained

for the registration of notices of adverse possession. [§ 12-13-41(13)].

j. Indexes. The judge of probate must keep four well-bound books of suitable size and
grade of paper, in which to make a general direct and a general reverse index of each instrument
filed and recorded in his office. Two of these books are to be used for conveyances of real property,
the other two for conveyances of personal property and all other instruments entitled to be recorded
in his office. The indexes should alphabetically list the parties, the maker for the direct index and
receiver for the reverse index. Also to be included are the date and character of each instrument
and the date the instrument was filed for record. An instrument conveying both personal and real
property must be entered in the indexes for both types of property opposite the names in the
indexes. After recording each instrument, the judge shall indicate the pages and books in which
the instrument was recorded. An index for each volume of record is not required. Note: A failure
to comply strictly with these provisions will subject the judge of probate to a $100 fine for each

34
 Administrative Functions of Judge of Probate

failure and liability for damage caused to any person instituting a suit for civil action. [§ 12-13-
43].

k. Record of Election Results. The judge of probate should keep the ballot accounting
certificate and the first copy of certificates of results for public inspection or election contest, or
both. [§ 17-12-12]. Federal law requires the maintenance of election records of federal elections
for 22 months. [42 U.S.C. § 1974].

E. INSTRUMENTS TO BE RECORDED

Judges of probate must keep large and well-bound books for recording, word for word,
conveyances of property and all other instruments authorized to be recorded, together with
acknowledgments, proofs, schedules, plats, surveys, or other necessary attachments. [§ 35-4-58].

The following records when executed in accordance with law shall be admitted to record
in the office of the judge of probate:

(1) Plats or maps [§ 35-2-51]; aerial photographs of land in respective county

[§ 35-2-80];
(2) Vacation of plats or streets or alleys [§§ 35-2-53 through 62];
(3) Judgment regarding vacation [§ 35-2-60];
(4) Deeds, mortgages, deeds of trust, bills of sale, leases or memoranda of
leases, contracts or other documents purporting to convey any right, title, easement,
or interest in any real estate or personal property, all assignments of mortgages,
deeds of trust or other securities for debt or extension agreements [§§ 35-4-51
through 35-4-51.1] (except as otherwise provided in UCC);
(5) Petitions, decrees, or orders of bankruptcy [§ 35-4-52];
(6) Patents from this state or the United States to lands in this state [§ 35-4-56];
(7) Lis pendens [§ 35-4-130];
(8) Notice of actions affecting the title of property [§ 35-4-131];
(9) Notice of levy [§ 35-4-132];
(10) Notice of trust to be recorded [§ 35-4-257];
(11) Documents and instruments concerning condominiums [§ 35-8-11];
(12) Notice of liens [see generally § 35-11-1 et seq.]; and
(13) Living Wills. In 2006, the Legislature provided for the filing of a living
will with the judge of probate of one’s county of residence. [2006 Ala. Acts 413].
“Living will” is defined as specified in Section 22-8A-3. The fee for filing a living
will is $5.00, which shall be deposited in the county general fund, in addition to

35
Handbook for Probate Judges

any other recording fees required by general or local law. § 22-8A-14(b). While a
living will is not to be open to the general public for inspection (though it is open
for inspection and copying by medical personnel, members of the immediate
family, and persons with power of attorney or other legal authority), a judge of
probate is not liable for any inspection or copying of a living will. § 22-8A-14(c).
Also, the recording of a living will has no bearing on the validity of the will. § 22-
8A-14(c)(2).
(14) A judge of probate may also charge the standard fee of one dollar fifty cents
($1.50) a page for copies provided in Section 10A-1-4.31(h). See also Chapter 2
of this handbook.

The judge must indicate in the margin of the instrument the day, month, and year that
instruments are received for recording. A signed certificate must also be made on the instrument
showing when it was received and recorded together with the book and page in which it was
recorded. Instruments may be recorded by a fair hand, typewriter, photostat or photograph
machine, or any other printing or writing apparatus which will record verbatim. [§ 35-4-58].

F. BONDS

All county officials of all counties in Alabama must execute official bonds payable to the
State of Alabama for the faithful performance of their duties and such additional official bonds as
public interest and provisions of the law may require. [§ 11-2-1]. The judge of probate approves,
records, and files surety bonds for most county and municipal officials in the county as well as
bonds for certain other persons required by law to execute bonds. These officials and other
individuals requiring bond are as follows:

(1) All county officials and employees requiring a bond except the bond of the
judge of probate must be filed in the office of the judge of probate. [§ 11-2-3]. The
official bond of the judge of probate is determined using the table in Section 12-13-
33. It cannot be less than $25,000 and must be filed and recorded in the office of
the clerk of the circuit court. Duplicate copies of the bonds of the judge of probate,
tax collector, and tax assessor must be filed with the state comptroller. [§ 11-2-3];
(2) Bond of circuit clerk can in no case be less than $5,000 [§ 12-17-91];
(3) Register of the circuit court must be under at least a $5,000 bond [§ 12-17-
111];
(4) Bond for the superintendent of public works must be at least $1,000 [§ 14-
4-12];

36
 Administrative Functions of Judge of Probate

(5) Bonds of municipal officers or employees handling money or exercising

authority over municipal property [§ 11-43-13];
(6) Bond for constables shall be $1,000 [§ 36-23-4];
(7) Bonds of county surveyors shall be $1,000 [§ 11-7-2];
(8) Bond for tax assessor must not be less than $5,000 [§ 40-4-1];
(9) Bond given by administrators and executors (personal representatives) [§
43-2-1];
(10) Bond for county treasurer must not be less than $15,000; in counties where
population is over 150,000, such bond must not be less than $50,000 [§ 11-4-22];
(12) An appeal bond, approved by the judge of probate, is required for contesting
an election [§ 17-16-62];
(12) Bond given by conservator [§ 26-3-12];
(13) Bond for county health officers shall be in the amount of $10,000 [§ 22-3-
7];
(14) Parental bond when minors marry (except common law marriages) [§ 30-1-
5] [See Adams v. Boan2];
(15) Bond for nonresidents of Alabama who do not have a place of business in
Alabama and who bring used motor vehicles into the state for sale [§ 32-16-2];
(16) Commissioners in municipalities with a commission form of government
require a bond of $5,000 [§§ 11-44-9 and 11-44-79].

A judge of probate, clerk or register taking insufficient surety is liable to an appellee for
damages sustained, unless the surety was generally reputed good for the amount when received.
However, the judge of probate, clerk, and register are not required to accept a surety who refuses
to take an oath that he or she is sufficient. [§ 12-22-41]. See page 156, Filing of Bond.

G. OATHS

In addition to surety bonds, the judge of probate also files and records oaths of office by
judges of inferior courts and other officials whose duties are confined to his or her county [§ 36-
4-4], persons supervising prisoners sentenced to hard labor [§ 14-4-14], commissioners in
municipalities with a commission form of government [§§ 11-44-9 and 11-44-79]. Upon filing
the oaths, the judge must endorse thereon the day and year on which the oath was filed. [§ 36-4-
7].

2
559 So. 2d 1084 (Ala. 1990).
37
Handbook for Probate Judges

H. CORPORATIONS

a. Articles of Incorporation and Other Filings. Judges of probate receive articles of

incorporation under the laws of Alabama. Upon finding that the articles conform to law, the judge
of probate is required to file the articles, issue a certificate of formation to the incorporators or
their representatives, and within ten days send the Secretary of State a copy of the certificate of
formation or amendments which alter the name of a corporation with a certified copy of the articles
of incorporation or amendment. These documents must indicate the place and date as well as the
time of filing. Moreover, a properly indexed book must be kept for recording articles of
incorporation. [§ 10A-1-4.02].

Judges of probate may sign an agreement with the Secretary of State to allow for Articles
of Incorporation to be filed electronically, directly with the Secretary of State’s Office. This
automated process requires a joint agreement with the Secretary of State and the Judge of probate.
If interested, the Judge of probate should contact the Secretary of State’s Office.

The judge of probate also has other filing duties related to corporations. The judge of
probate is required to file and deliver via certified mail to the Secretary of State within ten days
the:

(1) Articles or amendment of articles of incorporation;

(2) Certificate of formation;
(3) Any amendments or restatements of the certificate of formation;
(4) Certificate of dissolution, other than a statement of dissolution of a general
partnership or a statement of cancellation by an LLP;
(5) Certificate of revocation;
(6) Any other document required or permitted to be filed under Title 10A and
not expressly required to be filed by the Secretary of State or other filing officer;
(7) Articles of correction of any document required or permitted to be filed by
the judge of probate. [§ 10A-1-4.02]

b. Incorporation Fees. With regard to the filing of documents and issuing of certificates
of incorporation, judges of probate are permitted to collect fees specified in the code. [§ 10A-1-
4.31]. (See also pages 28-31) and Appendix A.

c. Special Corporations. For special types of corporations other laws have been adopted.
The Code citations for these special corporation provisions include:

38
 Administrative Functions of Judge of Probate

Municipalities (Incorporation & § 11-41-1 et seq.

Dissolution)
Water Conservation & Irrigation §§ 9-10-31 through 9-
Corporations 10-32
Associations of Retail Merchants § 10A-20-13.01
Wholesale Merchants Associations § 10A-20-14.01
Banks & Banking Institutions §§ 5-7A-4, 5-7A-23
Single Tax or Cooperative §§ 10A-20-9.01 through
Associations 19A-20-9.05
Mutual Farming or Trucking §§ 2-10-92, 2-10-107
Associations
Marketing Associations §§ 2-10-35, 2-10-56
through 2-10-57, 2-10-
72 through 2-10-74
Credit Unions § 5-17-2
Churches & Public Societies § 10A-20-2.01
Healthcare Service Plans §§ 10A-20-6.02, 10A-
20-6.06
County Public Building §§ 11-15-5, 11-15-18
Authorities
Athletic & Recreational Facilities §§ 11-59-5 through 11-
59-6, 11-59-14 through
11-59-15
County Hospital Boards §§ 22-21-74, 22-21-82
Public Building Authorities §§ 11-56-5, 11-56-20
Industrial Development Boards §§ 11-54-84 through 11-
54-85, 11-54-94

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Handbook for Probate Judges

Gas Districts § 11-50-392

Water Works Boards §§ 11-50-232 through
11-50-233
Airport Authorities § 4-3-4
Non-Profit Corporations §§ 10A-1-5.32 through
10A-1-5.33, 10A-3-3.01
through 10A-3-3.04,
10A-1-3.11, 10A-3-4.01
through 10A-3-4.03,
10A-3-5.04, 10A-1-
4.02, 10A-3-7.01, 10A-
3-7.04, 10A-3-7.06,
10A-3-7.16

I. OTHER RECORDS AND FILES

The judge of probate must also keep the records and files listed below. These records may
be kept as a set of specific documents or as a book for recording certain types of papers, reports,
or other types of records. These files and records and the Code sections explaining the duties of
the judge of probate in connection with them are as follows:

(1) A copy of field notes on the original government surveys of land in the
county when they are furnished by the county governing body [§ 11-3-25; see also
§ 12-21-41];
(2) Copies of rules, regulations, and notices issued by the Department of
Agriculture and Industries when they are furnished by the Department [§ 2-2-17];
(3) Alabama coordinate system maps [§ 35-2-6];
(4) Surveys and plat maps for town lots [§§ 35-2-50, 51 and 52];
(5) Honorable discharges from the Armed Forces of the United States [§ 31-1-
1];
(6) Decrees for quieting title [§ 6-6-544];
(7) Complaints alleging nuisances [§ 6-5-143];
(8) Certificates of limited partnerships (plus continuations and dissolutions) [§§
10A-1-3.04, 3.05, 4.01, 4.03];

40
 Administrative Functions of Judge of Probate

(9) Certificates of qualification to practice chiropractic, dentistry, as medical

doctors, as osteopathic doctors, podiatry and veterinary medicine [§§ 34-9-12, 34-
24-164, 34-29-84, 34-24-273 and 34-24-342];
(10) Stock Breeder's certificates [§ 2-15-312];
(11) Lis pendens [§§ 35-4-130, 131, and 134, see also § 6-5- 146, § 35-4-132];
(12) Registry of marriage3 licenses [§§ 30-1-12 and 30-1-13];
(13) Reports of persons receiving aid from the Department of Human Resources
[§ 38-1-4];
(14) Book of land sales (Tax Delinquency Book) [§§ 40-10-2, 3, 4, 11, 15, 18
and 27];
(15) Applications on controversies as to advancements [§ 43-8-50];
(16) Applications to correct marriage licenses and certificates [§§ 30-1-16 and
17];
(17) Records of persons sentenced to hard labor [§§ 14-4-4 and 14-4-5];
(18) Certificates of land redemption [§ 40-10-127];4
(19) Labels, stamps, marks, and brands on beverage containers [§ 8-12-20];
(20) Probated wills [§§ 43-8-169, 170 and 200];
(21) Records of letters testamentary and of administration issued [§ 43-2-1];
(22) Mechanic and materialmen liens [§§ 35-11-213, 215 and 216];
(23) Tax liens [§ 40-1-2];
(24) Hospital liens [§ 35-11-371];
(25) Record of fiduciary funds [§§ 19-3-81 through 85];
(26) Prescriptions for medical uses of alcoholic beverages [§§ 28-4-156, 159 and
161];
(27) Declarations of claims of exemptions [§§ 6-10-21 and 6 10-105];
(28) License forms received and issued [§§ 9-11-33, 40-12-10, 40-12-21 and 40-
12-22];
(29) Notices of animals impounded as estrays [§ 3-2-21];
(30) Instruments requiring a mineral documentary and tax stamp [§§ 40-20-33
and 34];
(31) Judgments and decrees rendered in other courts submitted for record [§ 6-
9-210];

3
Alabama no longer recognizes common-law marriages entered after January 1, 2017. [§ 30-1-20].
4
Judges of probate in counties with a population over 400,000 at the last or subsequent federal
decennial census should also see Act 520, 1947. This Act is codified in 1958 Code of Ala. Appx.,
§§ 849-906.
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Handbook for Probate Judges

(32) Itemized statements of election campaign expenses by candidates for city

commission under a commission form of government [§§ 11-44-44 and 92];
(33) Records related to the establishment of a commission form of government
in a municipality [§§ 11-44-51 and 96];
(34) Lists of registered and qualified electors and poll lists [§§ 17-4-1, 2, 4; 17-
3-60];
(35) Records of driver's licenses issued [§ 32-6-5];
(36) A copy of each weekly newspaper published in the county [§ 6-8-40; see
also §§ 11-13-2, 3 and 5]; and
(37) Living wills [§§ 22-8A-1 through 22-8A-14].

Of course, the judge of probate also maintains petitions and records related to court
proceedings and copies of all reports submitted by his office. Even some decrees granted in circuit
courts (such as permission for the spouse of a person declared mentally incompetent to convey the
property belonging to that person and decrees for the relief of minors over eighteen from the
disabilities of non-age) are filed in the office of the judge of probate. [§§ 30-4-35, 26-13-7 and 8].

There are also a number of records which must be maintained in the performance of other
duties. These form a substantial part of the administrative work load but can be best understood
in relation to the duties themselves. A description of these records is included in the discussion of
these duties in subsequent subdivisions of this chapter.

J. LICENSING

As noted earlier, the functions of the judge of probate in regard to the issuance of licenses
is greatly reduced in those counties with a full-time license commissioner. In other counties,
issuing licenses has been the most time-consuming duty of the judge of probate during the months
of October, November and December. Automobile tags were formerly issued during this period.
Beginning in 1981, the issuance of automobile tags was placed on a year-round basis. The order
of issuance is now determined by an alphabetical listing of the owner's last name. [See § 32-6-61].
The seasonal increase in workload is most pronounced for business, occupational, and professional
licenses. Hunting and fishing licenses are issued most often during game seasons, which permit a
greater dispersion of the workload. The issuance of marriage licenses and the receipt of
applications for driver's licenses approach consistency throughout the year.

a. General Provisions. The general provisions governing licenses are set out in §§ 40-12-
1 through 28. The subject matter discussed in these provisions includes such information as the
change of place of business, alteration of licenses, form of licenses, exemptions, and required

42
 Administrative Functions of Judge of Probate

records. Procedures for the relief from mistakes in the payment of license taxes are explained in
§§ 40-12-23 and 24; exemptions from business and occupational license taxes for veterans are
explained in §§ 40-12-340 through 352 and §§ 40-12-370 through 377.

As a part of the responsibility related to licenses, the judge of probate must keep an accurate
account of all licenses issued to him by the Departments of Finance and Conservation. To ensure
proper control, periodic reports and transfer of funds collected from the sale of licenses are
required. These reports are explained in the next section of this chapter. At the end of the year
unused license forms and stubs together with the license stubs for the licenses issued must be
returned to the state agency responsible for the license - for example, hunting and fishing licenses
are returned to the Department of Conservation. This is described in greater detail in §§ 9-11-33
and 36 and §§ 40-12-21 and 22.

Under Alabama law, any person entering into a business transaction or attempting to enter
into a business transaction with the state or a political subdivision thereof, is required to
demonstrate his or her United States citizenship or lawful presence. Business transactions include
applying for or renewing motor vehicle tags, driver’s licenses, and nondriver identification cards,
as well as applying for or renewing a business license. Other transactions may meet the definition
of “business transaction” as well. A list of documents that may be used to establish citizenship is
found in Section 31-13-28(k).

b. Boat Licenses. The judge of probate (or person authorized to issue automobile license
plates) issues certificates of registration for vessels used upon the waters of the state. The judge
of probate collects the registration fees and remits all money to the State Treasurer within 10 days
after the first of each month except a $1.00 issuance fee. In counties in which the judge of probate
is on the fee system, that issuance fee is kept by the judge of probate. In counties in which the
judge of probate is paid a salary the issuance fee is paid into the county treasury. [§ 33-5-10].

c. Business, Vocational, and Occupational. The number of specific types of licenses

issued by the judge of probate in these classes are too numerous for a listing here. They are
enumerated and explained in Sections 40-12-40 through 180. The judge of probate or other county
licensing official should electronically receive all business privilege license application
information. [§ 40-12-30(c)].

For licenses to operate billiard rooms see also Sections 34-6-30 through 35. Blank license
forms are furnished by the State Department of Finance.

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Handbook for Probate Judges

Persons are required to demonstrate United States citizenship or lawful presence when
applying for or renewing a business license. § 31-13-29(a) and (c). A list of qualifying documents
can be found in Section 31-13-28(k).

d. Certificates of Title. Judges of probate who issue license plates are designated as agents
of the Department of Revenue for the purpose of processing applications and collecting fees for
certificates of title. [§ 32-8-34]. The judge of probate collects, in addition to the transaction fee a
designated agent commission of $1.50 and an additional $1.50 by virtue of the judge of probate’s
position as a county elected official. [§ 32-8-6 and 7]. The transaction fees are remitted to the
Department of Revenue by no later than ten (10) calendar days after receipt of the application. [§
32-8-35(g)].

e. Deed and Mortgage Tax. Before recording any deed or mortgage the judge of probate
must collect the prescribed tax on all deeds and mortgages. Failure to do so is a misdemeanor
punishable by a fine of between $10 - $100. [§ 12-13-53].

f. Driver's Licenses. The judge of probate receives fees for and issues driver's licenses
and temporary instruction permits. The explanation of this duty is found in §§ 32-6-3, -4, -4.1, -5
and -8.

Persons are required to demonstrate United States citizenship or lawful presence when
applying for or renewing a driver’s license. § 31-13-29(a) and (c). A list of qualifying documents
can be found in Section 31-13-28(k).

g. Hunting and Fishing. The judge of probate issues both hunting and fishing licenses.
Blanks for hunting and fishing licenses are furnished to judges of probate by the State Department
of Conservation. When special agents are designated to issue these licenses, they receive their
blank forms through the judge of probate and are responsible to him. In addition to hunting and
fishing licenses, the judge also issues licenses to capture and kill fur bearing animals, with the
required stamps or tags to be attached to the fur, skin, or pelt. The judge also issues licenses for
fur dealerships, for spearfishing, for fishing with commercial fishing gear, and for commercial salt
water fishing. The provisions on hunting and fishing licenses are in Sections 9-11-36 through 71,
171, 172, 141 through 147, 153, 191 through 193, and Sections 9-12-80, 82, 87, 93, 95, and 113.

h. Marriage. The judge of probate is responsible for issuing marriage licenses. Many of
the criteria to be met by applicants as well as the judge of probate's duties with respect to recording
marriage licenses and marriage certificates are set forth in Sections 30-1-3 through 19. No
marriage license may be issued to any person under the age of sixteen, to any previously unmarried

44
 Administrative Functions of Judge of Probate

person under the age of eighteen without the consent of a parent or guardian [§§ 30-1-4 and 30-1-
5; Wood v. Farnell, 50 Ala. 546 (1874)], or to any couple whose marriage would be deemed
incestuous by Section 13A-13-3. The judge is responsible for the illegal issue of a marriage license
to a minor, even if the license was issued without the judge’s knowledge by a clerk in the judge’s
office. [Wood v. Farnell, 50 Ala. 546 (1874)].

A marriage license may not be denied to same-sex couples on the basis of sex. [Obergefell
v. Hodges, 135 S.Ct. 2584 (2015); Searcy v. Strange, 81 F.Supp.3d 1285 (S.D. Ala. 2015)].

Alabama Code Section 30-3-194(c) states that each party’s social security number should
appear on the marriage license. However, a social security number is not required to receive a
marriage license. Persons who do not have a social security number should submit an affidavit
attesting to the fact that he or she was never issued a social security number. 5 A marriage license
can be issued to an applicant who is not a United States citizen.6

For every marriage license granted, the judge of probate must collect, in addition to all
other required fees, $30.00 which must be forwarded to the district attorney. The fund created by
these fees is used to maintain domestic violence shelters and programs in the judicial circuit. [§
30-6-11].

i. Motor Vehicle Tags and Special Permits. The judge of probate is responsible for the
issuance of motor vehicle license tags, which are issued on a year-round basis. [§ 32-6-61]. This
responsibility requires close coordination with the county tax assessor and tax collector because
the ad valorem tax and certificate of title fees are also collected at the time the issue of new tags is
made. A full explanation of this duty is in Sections 32-6-60 through 63, Sections 32-8-30 through
49, Sections 40-12-240 through 274, and Sections 40-12-300 through 301.7

Persons are required to demonstrate United States citizenship or lawful presence when
applying for or renewing a motor vehicle tag. § 31-13-29(a) & (c). A list of qualifying documents
can be found in Section 31-13-28(k).

5
Official Opinion of Alabama Attorney General Troy King, 2008-100 (June 25, 2008), available
at https://ago.alabama.gov/documents/opin/2008-100.pdf (last visited Dec. 14, 2018).
6
Official Opinion of Alabama Attorney General Troy King, 2004-176 (July 13, 2004), available at
https://ago.alabama.gov/documents/opin/2004-176.pdf (last visited Dec. 14, 2018)
7
See Handbook for Alabama Tax Administrators, 8th ed., published by the Alabama Law Institute.
45
Handbook for Probate Judges

j. Public Warehouses. Licenses to operate a public warehouse are issued by judges of

probate but only after a permit from the commissioner of agriculture and industries has been
received. The license and permit are explained in Sections 8-15-3, 5, 7, 8 and 9.

K. REPORTS

One of the important administrative functions of the judge of probate is the submission to
various state departments of a number of specialized reports. The major reports required and the
Code sections relating to them are discussed in the following paragraphs.

a. Adoptions, Annulments and Revocations. A monthly report of orders of adoptions,

annulments and revocations must be submitted to the Department of Human Resources between
the first and tenth of the month following the report period. Forms for this report are furnished by
the Department. Also, a copy of this report must be submitted to the bureau of vital statistics. [§§
12-13-44 and 26-10A-32].

b. Business, Professional and Occupational. A monthly report of all business,

professional and occupational licenses issued must be submitted to the Department of Revenue
and Comptroller within twenty days following the reporting period. For the months of October,
November, and December, the deadline is extended to the 30th day following the end of month.
This report contains the type of license issued, the amount collected for each license, the name of
the person from whom the license fee was collected, and the date of collection. Reports are
required even though no licenses were issued during the reporting period.

Remittance of both state and county license fees collected for each type of license during
the reporting period, minus the authorized percentage for the judge of probate, is required at the
time that these reports are submitted. The provisions of the Code detailing these reports are
Sections 40-12-1, 2, 21 and 22.

An annual report of the disposition of all license forms must be submitted to the
Department of Finance. With this report the judge must attach all unused license forms and stubs
of a proper accounting for them and the stubs of all licenses issued. This report must be submitted
between the first and tenth of October. It is explained in Section 40-12-21.

c. Certificates of Title. Applications for certificates of title are to be forwarded to the

Department of Revenue within ten (10) calendar days after receipt of the application. [§ 32-8-
35(g)].

46
 Administrative Functions of Judge of Probate

d. Deaths and Vacancies in Public Offices. The judge of probate is responsible for
submitting a notice to the Governor of Alabama of deaths of United States Senators and
Representatives residing in the county. In the case of the death of the Governor, the judge of
probate is to give notice to the Lieutenant Governor. Similarly, in the case of death of any other
officer, the appropriate judge of probate gives notice to the officer who fills the vacancy. [§ 36-9-
6].

Resignations of constables must also be reported to the Governor by the judge of probate.
[§ 36-9-13].

All public officials, except constables, who move from their district, circuit, or county must
be reported to the official who would receive notice of his or her death. [§ 36-9-14].

e. Driver's Licenses. At the close of business each Monday the judge of probate must
submit to the Department of Public Safety a report of applications for driver's licenses, and for
renewal of driver's licenses received and the number of temporary driver's permits issued during
the previous week. The monthly report is also required. The monthly report must be submitted
between the first and tenth of the month following the report period. Copies of this report are
submitted to the Director of Public Safety, Comptroller, and Treasurer. Funds collected, less any
percentages or amounts authorized for the judge of probate are remitted to the state treasurer with
the copy of the monthly report submitted to him. These reports are explained in Section 32-6-5.

f. Hunting and Fishing. Reports of hunting and fishing licenses; fur licenses, stamps and
tags; licenses to use commercial fishing gear; commercial salt water fishing licenses; and licenses
for fur dealerships sold each month must be submitted to the Department of Conservation. This
report is submitted the first day of the month following the reporting period. It contains the
following information: the number and kind of licenses issued, the names of persons to whom the
licenses were issued and their addresses, the serial number of the license issued opposite the name
of the recipient, and the amount of money collected. The money collected, minus the percentage
authorized for the judge of probate, must be remitted to the Department of Conservation with the
report. These reports are explained in Sections 9-11-37, 60 and 143 and Section 9-12-119.

g. Incorporation Reports. Within ten days after the issuance of the certificate of
incorporation, the judge of probate must send the Secretary of State a copy of the certificate of
incorporation. A certified copy of the articles of incorporation must also be included upon which
must be indicated the place, date and time of their filing. [§ 10A-1-4.02]. In addition, a certified
copy of each court order incorporating a community as a municipal corporation is also submitted
to the Secretary of State. [§ 11-41-4].

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Handbook for Probate Judges

h. Marriage. Any change in marriage licenses, applications for marriage licenses, or

marriage certificates must be promptly reported to the state bureau of vital statistics following the
procedure outlined in Section 30-1-16. The judge of probate must also forward to the district
attorney each month all fees collected for domestic violence prevention. [See § 30-6-11].

i. Motor Vehicle. A monthly report of motor vehicle licenses sold must be submitted to
the Department of Revenue and Comptroller between the first and twentieth day of the month
following the report period except in October, November and December, when the deadline is
extended an additional ten days. The report contains a list of licenses issued, the amount collected
for each license tag, the name and address to whom each license was issued, the number of the tag,
the motor number or vehicle identification number, and the date issued. Even though no licenses
are issued, a report must be submitted. Monies collected from the issuance of this license, less the
percentage authorized for the judge of probate must be remitted to the state and county treasurers
or to the municipality, as provided by Section 40-12-270. Under local laws monies collected may
also be paid to Boards of Education, hospitals, etc. Remittance is made at the time the report is
submitted. A failure to comply with these provisions could result in impeachment of the judge of
probate. The requirements of this report are found in Section 40-12-269.

j. State Land Purchases. Whenever a delinquent taxpayer attempts to redeem land which
has been bid in by the state, the judge of probate must obtain the Land Commissioner's approval
for the redemption. [§ 40-10-126]. Within five days from the redemption of any real estate bid by
the state, the judge of probate must notify the tax assessor and tax collector of the county and, on
demand, pay to them the cost and fees to which they are respectively entitled. [§ 40-10-130]. At
the end of any month during which no land has been redeemed, the judge of probate must report
that fact to the land commissioner and to the tax collector. [§ 40-10-129].

k. Other Reports. A poll list of qualified electors must be certified to the Secretary of
State of Alabama [§ 17-4-2]. In addition, the judge of probate shall prepare a separate, correct
alphabetical list of all the names of qualified electors for each voting place for all elections held in
the state, and shall certify the list to the election officials appointed for each election. [§ 17-6-5].

The names of attorneys who have paid their license fees must be reported to the presiding
judge of the circuit in the county as soon as possible after the first of the year. [§ 40-12-49].

Any fiduciary funds under the trust of the judge of probate must be reported to his court
within the first ten days of January. The report must show the amount of fiduciary funds under his
trust, the name of the owner, and the circumstances under which they were received. They must

48
 Administrative Functions of Judge of Probate

be recorded in a book kept for that purpose. [§§ 19-3-81 and 19-3-85]. The administration of
fiduciary funds is described in the next section of this chapter.

L. FIDUCIARY FUNDS

The judge of probate is entrusted by law with certain special funds. These include funds
for certain minors, funds received from the disposition of real and personal property when no heir
can be ascertained, and funds for heirs in foreign states who are not represented at proceedings by
counsel of their own choosing.

a. Auditing of Public Accounts. The Department of Examiners of Public Accounts is the

legislative audit agency in Alabama which is required to audit the records and accounts of each
state and county agency. The Department also has the duty to prepare the bookkeeping, accounting
and reporting system for each state and county office.

The Department strives to promote accounting and financial reporting systems which meet
generally accepted accounting principles, and to perform audits which meet generally accepted
auditing standards.

A major concern in an audit is that the financial records of the audited office accurately
account for all funds handled by the office and that the office has complied with the applicable
laws and regulations. The laws and regulations cover competitive bidding laws, conflicts of
interests, constitutional and statutory restrictions placed on the use of particular funds, budgeting,
financial reporting, and bonding requirements.

By statute a copy of each audit report is forwarded to the governor and a copy to the
presiding circuit judge in the county in which the office is located. By departmental policy a copy
of each report is forwarded to the audit official(s), a copy to the county commission and copies to
those officials or agencies requesting copies.

b. Disposition of Personalty and Realty. Money and proceeds from the disposition of
personal property are received and safeguarded by the judge of probate when an heir or person
entitled to it cannot be ascertained within one year. The judge also performs the same duty in
relation to funds and proceeds from the disposition of real property when no heir or person entitled
thereto can be ascertained within two years. These funds must be deposited in the state treasury
within three months after they are received. The procedure to be followed in handling these funds
is found in Sections 43-6-4, 5, 6 and 7.

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Handbook for Probate Judges

c. Heirs in Foreign Countries. Funds for heirs in foreign countries, not represented in the
settlement of an estate by counsel of their own choosing, must be turned over to the consular officer
of the foreign country. [§ 6-8-20].

d. Minor. Any person who is under a duty to pay money or deliver personal property to a
minor may do so by paying or delivering to it:

(1) the person having the care and custody of the minor with whom the minor
resides;
(2) a guardian of a minor; or
(3) the judge of probate where the minor resides.

[§ 26-2A-6]. However, there are some limitations on the amount that may be paid out under this
section. They are:

(1) $5,000 if paid in a single payment; or

(2) $3,000 a year if paid in a series of payments; and
(3) a maximum of $25,000 during minority of the ward unless it is paid through
a conservator or judge.
The money paid out must be applied to the health, support, education and maintenance of the
minor. [§ 26-2A-6(c)].

Payments under this section are not allowed if payor knows that the minor has a conservator
or there is a proceeding pending to appoint a conservator.

Moreover, before the person who is obligated to make the payment is discharged of that
duty notice must be given. Notice must be filed with the judge of probate in the county in which
the minor resides if the minor is a resident of Alabama. If the minor is a nonresident, notice must
be filed with the judge of probate or similar officer in the county in which the debtor or creditor
resides. [§ 26-2A-6].

M. CONDUCT OF ELECTIONS

The judge of probate has a number of duties relating to state and county elections. The
judge of probate is an elected county official and is the chief election official in each county. [§
17-9-2] Please consult the current edition of the Alabama Election Handbook published by the
Alabama Law Institute for a detailed summary of Alabama’s election laws and the role of the judge
of probate’s office in the election process.

50
 IV.

THE JUDICIAL FUNCTIONS

OF THE JUDGE OF PROBATE
The judge of probate is designated by the Constitution as a member of the judicial branch
of the state government. The duties of the judge of probate touch on the whole scope of
government -- executive, legislative, and judicial -- at the county level. The focus of this chapter
is on the judge's judicial duties.

A. THE SCOPE OF JUDICIAL FUNCTIONS

First, each of these duties under present law is judicial by virtue of the fact that they require
a decision by a judicial officer. Second, all decisions and appeals remain within the judiciary
established by the state statute or state constitution. Third, all decisions by the judge of probate
are by legal process without resort to another court except on appeal. Fourth, decisions of the court
are accorded the same validity and presumption accorded a general court of law.

It should be noted, however, that the judge of probate is not required personally to perform
all judicial duties within the jurisdiction of court. The chief clerk may perform all acts which may
be performed by the judge when there is no contest. [§ 12-13-14].

As part of the judicial function, the judge is required to maintain petitions initiating judicial
proceedings and to maintain a well arranged docket, showing the date of the issue and return of all
process, the day set for the hearing, the kind of notice ordered, the returns of the sheriff, and other
entries as may be necessary to show the true condition of all proceedings pending in the court, and
all fees accruing in the case and to whom due. In addition, minutes of all official acts and
proceedings must be kept and recorded in well-bound books within three months of the entry.
The judge of probate must become familiar with certain remedies and procedures. They
are discussed in several titles of the Code of Alabama. However, in addition to any special
procedures which may be explained in sections on specific issues, the judge of probate should read
the general provisions of rules and remedies which are explained in Titles 6 and 12 of the Code of
Alabama, the Alabama Rules of Civil Procedure and the Alabama Rules of Evidence. Probate
courts cannot administer remedies except as provided by the statutes. [Kish Land Co., LLC v.
Thomas, 42 So. 3d 1235 (Ala. Civ. App. 2010).]

The judge of probate, within the jurisdiction of the probate court, may declare rights, status,
and other legal relations whether further relief is or could be claimed. The declaration may be
51
Handbook for Probate Judges

negative or affirmative in form and effect. Moreover, when a declaration is issued it has the force
and effect of a final judgment or decree. Requests for declaratory judgments or decrees may be
refused if the decision would not terminate the uncertainty or controversy giving rise to the
proceeding. [§§ 6-6-222, 229 and 230].

The judicial authority of the judge of the probate court extends to many fields. As the title
suggests, the judge of probate has the authority to probate wills, to grant executorships and appoint
administrators (personal representatives), and to remove executors and administrators (personal
representatives). In addition, the judge of probate also has duties and powers in many areas,
including the following:

(1) To appoint and remove guardians and/or conservators for minor children and
mentally incompetent persons;
(2) To establish drainage districts;
(3) To hear and decide on petitions requesting condemnation of privately owned land;
(4) To hear and decide election contests in certain proceedings;
(5) To preside over adoption proceedings;
(6) To order the sale of lands for the payment of delinquent taxes;
(7) To hear and decide petitions for the redemption of lands sold for delinquent taxes;
(8) To receive petitions, determine the sufficiency thereof and conduct elections for the
establishment and dissolution of municipalities;
(9) To receive and decide petitions for the adoption of a commission form of
government and for alterations of municipal boundaries;
(10) To hear and decide claims for exemptions from executions, attachments, and
garnishments, including authority to hear and decide homestead exemptions; and
(11) To conduct capacity hearings and involuntarily commit persons for mental health
treatment.
(12) To determine competency of persons to vote.
(13) To preside over trust administration matters (limited to certain judges with equity
jurisdiction under Section 19-3B-203).

Each of these powers will be discussed individually.

B. JUDICIAL IMMUNITY

The immunity of a judge of probate for judicial acts has been recognized in this state since
at least 1884. Grider v. Tally, 11 Ala. 422 (1884). Like Grider, subsequent decisions have
generally focused on whether a judge's actions were made while acting in a judicial capacity. This

52
 Judicial Functions of the Judge of Probate

factual determination, which can only be made by a court of competent jurisdiction, depends on
whether (1) the act complained of constituted a normal judicial function, (2) the events occurred
in the judge's chambers or in open court, (3) the controversy involved a case pending before the
judge, and (4) the confrontation arose immediately out of a visit to the judge in his or her judicial
capacity. Sibley v. Lando, 437 F. 3d 1067, 1070 (11th Cir. 2005), citing Scott v. Hayes, 719 F. 2d
1562, 1565 (11th Cir. 1983).

Even if, however, an action is judicial in nature, judicial immunity may be overcome if the
act complained of is taken in the complete absence of jurisdiction. Stegeman v. Georgia, 290 Fed.
App'x 320, 324 (11th Cir. 2008), citing Mireles v. Waco, 502 U.S. 9, 9-12, 112 S.Ct. 286, 287-88,
116 L.Ed. 2d 9 (1991). As explained by the Supreme Court of the United States, if a judge of
probate with jurisdiction over only wills and estates tried a criminal case, he or she would be acting
in the clear absence of jurisdiction and would not be immune from liability for his or her action.
Bradley v. Fisher, 80 U.S. 335, 351 (1871), cited in Gore v. City of Hoover, 559 So. 2d 163,
footnote 3 (Ala. 1990), overruled on other grounds by Franklin v. City of Huntsville, 670 So. 2d
848 (Ala. 1995).

Additionally, judicial immunity does not bar an action, including those brought pursuant
to 42 U.S.C. § 1983, seeking prospective injunctive relief. Bearden v. Coker, 121 So.3d 359 (Ala.
Civ. App. 2012), citing Pulliam v. Allen, 466 U.S. 522, 541-42, 104 S. Ct. 1970, (1984); opinion
to Honorable James H. Lackey, Judge, Municipal Court, Ala. Op. Att'y Gen. No. 85-00275 (Apr.
1, 1985).

C. SERVICE OF PROCESS

NOTE: This section describes the general rules of service of process under the Alabama
Rules of Civil Procedure. By order of the Alabama Supreme Court the Alabama Rules of
Civil Procedure, became applicable in probate court so far as the application is appropriate
and except as otherwise provided by statute. (Effective January 1, 2013).

a. Generally. Upon the filing of a complaint, or other document required to be served in

the manner of the original complaint, the clerk shall issue the required summons or other process
of service upon each defendant. Upon request of the plaintiff, separate or additional summons
shall issue at any time against any defendant. [Ala. R. Civ. P. 4(a)(1)].

The summons, or other process, shall be signed by the clerk, contain the name of the court
and the name of the first party on each side with an appropriate indication of other parties when
multiple parties are involved, state the name and the address of the plaintiff's attorney or the

53
Handbook for Probate Judges

plaintiff's address, and the time within which the rules require the defendant to appear and defend.
Furthermore, the form shall notify the defendant that, in case of the defendant's failure to appear,
judgment by default will be rendered against the defendant for the relief demanded in the
complaint. [Ala. R. Civ. P. 4(a)(2)].

A copy of the complaint, showing the case number assigned to the action, or other
document to be served shall accompany each summons or other process. [Ala. R. Civ. P. 4(a)(3)].

b. Time Limit for Service. If service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the court, upon motion or its own
initiative, after at least fourteen (14) days' notice to the plaintiff, may dismiss the action without
prejudice as to the defendant upon whom service was not made or direct that service be effected
within a specified time. However, if the plaintiff shows good cause for the failure to serve the
defendant, the court shall extend the time for service for an appropriate period. [Ala. R. Civ. P.
4(b)].

In computing any period of time prescribed or allowed, the day of the act, event, or default
from which the designated period of time begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which
event the period runs until the end of the next day that is not a Saturday, a Sunday or a legal
holiday, or when the act to be done is the filing of a paper in court, a day on which weather or
conditions have made the office of the clerk of the court inaccessible, in which event the period
runs until the end of the next day that is not one of the aforementioned days. When the period of
time prescribed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays
shall be excluded in the computation. [Ala. R. Civ. P. 6(a)].

c. Upon Whom Process Served. Service of process, except service by publication as

provided in Ala. R. Civ. P. 4.3, shall be made as follows:

Individual By serving the individual or by leaving

a copy of the summons and complaint
at the individual's dwelling house with
some person of suitable age and
discretion then residing therein or by a
copy of the summons and complaint to
get an agent authorized by
appointment to receive the service of
process.

54
 Judicial Functions of the Judge of Probate

Minor By serving any of the following: the

father, the mother, the guardian, the
caretaker, the individual with whom
the minor lives, the spouse (if the
minor is married), or the minor
individual (if the individual is over
the age of twelve (12) years.

Incompetent Not By serving the incompetent and that

Confirmed person's guardian. If no guardian has
been appointed, by serving the
incompetent and a person with whom
the incompetent lives or a person who
cares for the incompetent.

Incompetent By serving the superintendent of the

Confined institution or similar official or person
having the responsibility for custody
of the incompetent person.

Incarcerated Person By serving the individual, except that

when the individual to be served is a
minor, by serving any one of the
following: the father, the mother, the
guardian, the individual having care
of the minor, or the minor individual
(if the individual is over the age of
twelve (12) years).

Corporations and By serving an officer, a partner (other

Other Entities than a limited partner), a managing or
general agent, or any agent authorized
by appointment or by law to receive
service of process.

State By serving the officer responsible for

the administration of the department,

55
Handbook for Probate Judges

agency, office, or institution, and by

serving the state attorney general.

Local Governments By serving the chief executive officer

and Other or the clerk, or other person
Governmental designated by appointment or by
Entities statute to receive service of process,
or upon the attorney general of the
state if such service is accompanied
by an affidavit that all such persons
herein are unknown or cannot be
located.

[Ala. R. Civ. P. 4(c)(1-8)].

d. Service by a Process Server. Service of process may be by the sheriff or constable of

the county in which the party to be served resides or may be found or by a private process server
as provided in the Rules [Ala. R. Civ. P. 4)(i)(1)].

e. Service by Certified Mail. When the plaintiff files a written request with the clerk for
service by certified mail, service of process shall be made by that method. Alternatively, the
attorney or party filing the process and complaint may initiate service certified by mail as provided
in the rule. [Ala. R. Civ. P. 4(i)(2)(a)].

The clerk shall place a copy of the process and complaint or other document to be served
in an envelope and shall address the envelope to the person to be served with instructions to
forward. The clerk shall affix adequate postage and place the sealed envelope in the United States
mail as 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 case number of the case in which the pleading has been filed shall be included on
the return receipt. The clerk shall forthwith enter the fact of mailing on the docket sheet of the
action and make a similar entry when the return receipt is received. [Ala. R. Civ. P. 4(i)(2)(B)].

Service by certified mail shall be deemed complete and the time for answering shall run
from the date of delivery to the named addressee or the addressee's agent as evidenced by
signature on the return receipt. [Ala. R. Civ. P. 4(i)(2)(C)].

56
 Judicial Functions of the Judge of Probate

Consequently, if the receipt shows failure of delivery to the addressee or the addressee's
agent, the clerk shall follow the notification procedure set forth in Ala. R. Civ. P. 4(i)(1)(D).
Failure to make service within the thirty (30) day period and failure to make proof of service do
not affect the validity of service. [Ala. R. Civ. P. 4(i)(2)( D)].

f. Service Refused. If service of process is refused, and the certified mail receipt or the
return of the person serving process states that service of process has been refused, the clerk shall
send a copy of the summons or other process and complaint or other document to be served to the
defendant to the address set forth in the complaint or other document by ordinary mail. Service
shall be deemed complete when the fact of mailing is entered or recorded. [Ala. R. Civ. P. 4(e)].

g. Service by Publication. Service by publication is proper for historically equitable

claims involving property under the control of the court (e.g., administration of an estate,
interpleader, partition) or marital status which claim has heretofore been deemed appropriate for
service by publication where the identity of the residence of a defendant is unknown or where a
resident defendant has been absent from his residence for more than thirty (30) days since the filing
of the complaint and the method of service by publication in such instances is not specifically
provided by statute. [Ala. R. Civ. P. 4.3(a)(1)]. Additionally, service by publication is proper for
claims, whether legal or equitable, against a defendant who avoids the service of process as
described in Ala. R. Civ. P. 4.3(c). However, before such service of process can be made either
the party or the party’s counsel must file an affidavit with the court averring the necessity of
utilizing the procedure for service by publication [Ala. R. Civ. P. 4.3(d)]. [Ala. R. Civ. P.
4.3(a)(2)]. An affidavit submitted in support of a motion requesting service of process by
publication must set forth facts showing that the defendant has avoided service. Service of process
by publication is not proper simply because the defendant may be difficult to locate; there must be
some element of culpability on the part of the defendant, and that culpability must be shown by
facts set forth in an affidavit submitted in support of a motion requesting service of process by
publication. See Lovell v. Costigan, 185 So. 3d 1130 (Ala. Civ. App. 2015). Service by publication
for adoptions must also be made in compliance with the Alabama Rules of Juvenile Procedure and
Ala. Code § 26-10A-17. Note: For more information on service by publication, see Ala. R. Civ.
P. 4.3.

Note: This is only a general overview of service of process. Other statutes may provide
specific procedures for service of process for other procedures (e.g., guardianships, administration
of estates, conservatorships, etc.). Please see the appropriate section of the Alabama Code for any
other provisions that may apply, as well as the Alabama Rules of Civil Procedure. For example,
the following is a list of some of the provisions of the Alabama Code that have their own rules for
service of process:

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Guardianship § 26-2A-103 and § 26-2A-50

Conservatorship § 26-2A-134
Adoption § 26-10A-17
Will Probate § 43-8-164, -165, -166
Settlement of Estates § 43-2-505
Mental Commitment § 22-52-3

The above list is not meant to be exhaustive, but simply representative of the other provisions in
the law that deal with service of process. Determining proper notice is a crucial function of the
judge of probate. Improper notice can be the grounds to set aside any rule or decision of the court,
even after lengthy proceedings. Therefore, all judges of probate should familiarize themselves
with Alabama Rule of Civil Procedure 4 and the other provisions of the Alabama Code dealing
with service of process.

D. PRETRIAL MOTIONS

A pretrial motion is aptly described by its name. It is a motion filed before trial, usually to
resolve an issue of law or the admissibility of a piece of evidence. Pretrial motions can be filed in
any type of probate case but are usually filed in cases that are complex or contested. A ruling on
a pretrial motion can speed up the main hearing and, in some cases, can resolve the contested issues
altogether. However, in most instances, the judge of probate is not required to rule on a pretrial
motion and can reserve a ruling until the main hearing or even until the end of the case.

The presiding judge of each judicial circuit may authorize pretrial motion hearings in
probate courts to be conducted by telephone conferencing or other audio-video
telecommunications means. The presiding judge shall develop and publish procedures for the
conduct of the civil hearings in probate courts in his or her judicial circuit. The telephone or audio-
video telecommunications device used in the hearing shall enable the judge and all parties to
converse simultaneously with each other. [§ 12-1-24].

E. WILLS AND ADMINISTRATION

From the title, "Judge of Probate," it is obvious that one of the major responsibilities of the
judge of probate is to probate wills and grant letters testamentary and letters of administration.
They involve important actions which are sometimes very technical from a legal standpoint. This
jurisdiction is one of the few which is original, general, and unlimited and which is derived from
the state constitution itself. (See Jordan v. Jordan, 38 So. 2d 865 (Ala. 1956).). A brief
explanation of the procedure involving the probate of wills and administration of estates follows.

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a. Requirements for Making a Will. To make a will, the following requirements must be
met:

(1) Anyone who is at least 18 years old and of sound mind may make a will. [§ 43-8-
130].
(2) A will must be written. [§ 43-8-131].
(3) It must be signed by the testator, or in the testator's name by another person in the
testator's presence and at his direction [§ 43-8-131], and
(4) It must be signed by at least two witnesses [§ 43-8-131; see also § 43-8-134].

If the document submitted for probate does not meet all of these requirements, it is not a legal will
and should not be admitted to probate.

The Uniform Electronic Transactions Act (UETA) specifically excludes the act from
applying to the “creation and execution of wills, codicils, or testamentary trusts.” Thus, an
electronic signature on a will falls under the exclusionary provisions of the UETA and is not a
valid signature. [§ 8-1A-3 (b) (1)].

b. Effect of Divorce; Pretermitted Children. A divorce or annulment revokes all

provisions of a will relating to the former spouse. Remarriage (to the spouse named in the will)
revives those provisions, unless they have also been revoked by some other means. [§ 43-8-137].
Similarly, a spouse who marries the testator after the execution of the will, and who is left out of
the will, receives an intestate share of the estate. This does not apply if it appears that the testator
either intended the omission or provided for the spouse outside the will in lieu of a bequest. [§ 43-
8-90].

Children who are born or adopted after the execution of the will, and who are not provided
for in the will, are entitled to the share of the estate equal to what they would have received had
the parent died intestate. Again, this does not apply if it appears that the omission was intentional;
or if the testator meant to provide for the child outside the will; or if, when the will was executed,
the testator had one or more children and left his estate to the omitted child's other parent. [§ 43-
8-91; Gray v. Gray, III, 947 So.2d 1045 (Ala. 2006)].

c. Right of Surviving Spouse to Elective Share. The surviving spouse may elect to take
either what he or she is left under the will, or a statutory elective share. Section 43-8-70 defines
the elective share as the lesser of (1) all the estate, reduced by the value of the surviving spouse's
separate estate (the separate estate is defined in Section 43-8-70(b) or (2) one-third of the estate.
[§ 43-8-70]. An election must be exercised by filing a petition for elective share with the probate

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court within six months after the date of death or the probate of the will, whichever is later. The
court has discretion to extend this deadline. [§ 43-8-73].

After notice and hearing, the court may order the elective share to be paid from the assets
of the estate. [§ 43-8-73]. Other rules relating to the elective share, including the formulation for
apportioning the estate to satisfy the share, are found in Sections 43-8-71, 72, 74 and 75.

d. Who May Probate a Will. Upon the death of a testator, any executor (personal
representative), devisee or legatee named in the will or any person interested (financially) in the
estate or who has custody of the will may have the will proved before the proper probate court. [§
43-8-160].

e. When and Where a Will Must be Probated. To be effective, a will must be filed for
probate within five years of the date of the testator's death. [§ 43-8-161]. Nonetheless, the statute
providing that wills must be filed within five years from the date of death is a statute of limitations
which must be pled in order to be enforced. [Hollis v. Wallace, 481 So. 2d 875 (Ala. 1985)].
Generally, wills must be filed for probate in the county where the deceased lived, or in the case of
an out-of-state decedent, the will may be probated in a county where the decedent leaves assets.
Under Section 43-8-162 venue is also proper in the probate court of the county designated by the
testator in the testator’s will provided the testator owns property in that county upon the testator’s
death. [§ 43-8-162].

f. Duty of Person with Custody of Will. After the testator's death any person who is in
possession of the will has a duty under Section 43-8-270 to deliver it to a person who is able to
secure probate of the will or to an appropriate court. Failure to deliver will make the custodian
liable to anyone who sustains damages because of his retention of the will. Also, the probate court
may order the custodian to produce the will; failure to comply with this order may subject the
possessor to a penalty for contempt of court. [§ 43-8-270].

g. Digital Assets. The Revised Uniform Fiduciary Access to Digital Assets Act [§§ 19-
1a-1 through 19-1a-18] expands a fiduciary’s duties to manage tangible assets to digital assets.
However, access to electronic communications require the owner’s consent. [§ 19-1A-15].

h. Notice to Next of Kin; Proof of Will. Upon the application to prove a will, made by an
interested party, at least ten days' notice must be given to the surviving spouse and next of kin, or
either of them, who resides or is otherwise in Alabama, before the application can be heard. [§
43-8-164].

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Generally, a will must be proved by one or more subscribing witnesses. If all the witnesses
are dead, incompetent, etc., proof must be made of the testator's handwriting, and that of one
witness. When no subscribing witnesses can be found, proof of their death, incapacity, etc., must
be shown before the court will allow proof of handwriting. [§ 43-8-167]. If there is no contest,
the testimony of one attesting witness is sufficient. However, if there is a will contest, proof of
two witnesses or proof by one witness and a proper accounting for the other witness is required.
[§ 43-8-167].

i. Self-Proving Wills. Since 1981 Alabama law has provided for wills which are
considered self-proving. Any will may be simultaneously executed, attested, and made self-proved
by the testator's acknowledgment and affidavits of the witnesses, each made before any notary
public or other officer authorized to administer oaths in Alabama. The form for self-proving wills
is provided in Section 43-8-132 of the Code. The language of a self-proving will does not have to
match exactly, but it must be in substantially that form. Such execution must be evidenced by the
officer's certificate under seal. Likewise, an attested will may at any time after its execution be
made self-proved by attaching proper acknowledgments, to the existing will. Self-proving wills
generally dispense with procedures described above and below for proving wills except in the case
of proof of fraud or forgery. [§§ 43-8-132 and 133].

j. When Subscribing Witnesses are Unavailable to Prove Will. When the subscribing
witnesses reside out of state or are physically unable to testify, the judge of probate may issue a
commission to take the testimony of such witnesses to prove the will. [§ 43-8-168]. (The procedure
for probating foreign wills appears in Section 43-8-175). If it appears from the proof taken before
the judge of probate that the will was properly executed and witnessed, the testimony must be
reduced to writing, signed by the witness and immediately recorded in a book kept for such
purpose. [§ 43-8-169]. Every will proved and recorded must have a certificate appearing thereon,
endorsed by the judge of probate specifying the date of probate, the book and the page or pages on
which it is recorded. [§ 43-8-170]. A will which is withdrawn prior to its becoming probated must
also be recorded by the judge of probate. [§ 43-8-173]. Also, secondary evidence, such as a
signature on another legal document, is admissible in the absence of primary proof. Woodruff v.
Hundley, 127 Ala. 640, 29 So. 98 (1900).

k. Lost Will. The lost will exception, a product of the common law, has been preserved
and read into the statute, so that a “lost will may be established by the testimony of a single witness,
who read it, or heard it read, and remembers its contents.” Lovell v. Lovell, 121 So. 2d 901 (1960).
“The exception, which relaxes the requisite proof for probating a lost will, is in keeping with the
public policy of this State in carrying out the last intent of the testator.” Anderson v. Griggs, 402
So.2d 904 (Ala. 1981). While an essential element in proof of establishment of a lost will is

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assertion of knowledge of contents of such a will, in proving, the contents of a lost instrument as
a will, it is not necessary to prove words of an instrument; proof of substance of contents is all that
is required. Anderson v. Griggs, 402 So. 2d 904 (Ala. 1981). In a proceeding to probate a lost or
destroyed will, the proponent must establish: (1) the existence of a will—a written instrument,
signed by the testator or another person, in the testator’s presence, at the testator’s direction, and
attested by at least two witnesses, who must subscribe their names thereto in the presence of the
testator; (2) the loss or destruction of the instrument; (3) the non-revocation of the instrument by
the testator; (4) the contents of the will in substance and effect. “When the will is shown to have
been in the possession of the testator, and is not found at his death, the presumption arises that he
destroyed it for the purpose of revocation; but the presumption may be rebutted, and the burden of
rebutting it is on the proponent.” Spencer III v. Spencer, 2018 WL 915097 (Ala. 2018)(quoting
Barksdale v. Pendergrass, 319 So.2d 267 (Ala. 1975).

l. Will Contest. A will before the probate court may be contested by any interested person
or by any person who, if the deceased had died intestate, would have been an heir or distributee of
the estate. [§ 43-8-190]. Creditors of the heirs at law of a deceased person are not “persons
interested in the estate” and thus, have no right to contest the probate of a will. Owens et al. v.
Thurmond’s Adm’r, 40 Ala.289 (Ala. 1866).

A will may be contested in two ways. First, before probate, a contest may be instituted in
the probate court. Second, after probate and within six months thereof, a contest may be instituted
by filing a complaint in the circuit court of the county in which the will was probated. [Stone v.
Parish,70 So. 3d 420 (Ala. Civ. App. 2011)].

A probate court must order the transfer of a will contest brought in that probate court upon
the demand of any party to the contest at the time of the filing of an initial pleading. [§ 43-8-198].
Furthermore, a will contest by an interested party is permitted only if the will has not yet been
admitted to probate. [§ 43-8-190].

When a complaint contesting a will and a petition to transfer the case to the circuit court is
filed, the probate court has a mandatory duty to transfer the will contest to the circuit court and
can take no further action concerning the validity of the will. [§ 43-8-198].

Just as a court lacking subject-matter jurisdiction has no authority to do anything other than
enter a judgment of dismissal, a probate court confronted with a proper and timely transfer demand
accompanying a will contest can do nothing but comply with the mandate of the legislature and
refer the contest to the appropriate circuit court. [§ 43-8-198].

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Upon transferring of a will contest from the probate court, the circuit court acquired
exclusive subject-matter jurisdiction to adjudicate merits of a will contest, and the circuit court
was required to exercise that jurisdiction before remanding case back to probate court. [§ 43-8-
198].

The circuit court has no authority to remand a will contest that has properly been transferred
from a probate court without having adjudicated the merits of the contest. [§ 43-8-198].

The judge of probate must on application of either party issue subpoenas for witnesses to
appear on the day fixed for the trial, before a jury drawn as provided by statute. [§§ 43-8-191, 192
and § 12-16-78]. If the probate court rules that the will is invalid, it cannot be probated. Otherwise,
the will must be admitted to probate. [§ 43-8-195].

m. Transfer of Contest to Circuit Court. Usually, such contests are conducted in the
circuit court upon the demand of any party to the contest, made to the judge of probate at the time
of the initial pleading. When a transfer of contest to the circuit court is requested, the judge of
probate must enter an order transferring the contest to the appropriate circuit court, certifying all
papers and documents pertaining to the contest to the clerk of the circuit court. [§ 43-8-198]. If
the contest is denied in circuit court, the case is transferred back to probate court for further
administration of the estate. In the event the will has been admitted to probate, a contesting party
must, within six months, file a complaint with the circuit court. [§ 43-8-199].

n. In Terrorem Clause. In terrorem clauses apply “to legacies given upon condition that
the recipient shall not dispute the validity or the dispositions of the will” [Black’s Law Dictionary,
Revised 4th Ed.] Thus, in terrorem clauses are sometimes used in wills to keep beneficiaries from
contesting a will by either completely disinheriting the beneficiary or reducing the beneficiary’s
share to a nominal amount if the beneficiary challenges the will. In terrorem clauses are enforced
in Alabama, but they are to be narrowly construed to avoid a forfeiture. [Harrison v. Morrow, 977
So. 2d 457 (Ala. 2007)].

o. Executor’s (Personal Representative’s) Letters Testamentary. Whenever a will has

been admitted to probate, the judge of probate may issue letters testamentary to:

(1) the person(s) named as executor(s) (personal representative(s)) in the will,

(2) who is (are) at least 19 years old, and
(3) who has (have) never been convicted of a serious crime, and
(4) who is (are) otherwise capable of discharging the requisite duties of trust.

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A non-resident of the state can only be appointed an administrator when he is, at the time,
executor or administrator (personal representative) of the same estate in another state. [§§ 43-2-
20, 21 and 22]. However, a non-resident can be appointed an executor. [§ 43-2-191].

p. Co-representatives. Generally, if two or more persons are appointed co-representatives,

and unless the will or a statute provides otherwise, the concurrence of all is required of all acts
connected with the administration and distribution of the estate. The code enumerates a few
exceptions to that general rule. [§ 43-2-846].

Unless the will provides otherwise, every power exercisable by personal co-representatives
may be exercised by one or more remaining after the appointment of one or more is terminated.
Furthermore, if one of two or more who are nominated as personal co-representatives is not
appointed, those appointed may exercise all of the powers incident to the office of personal
representative. [§ 43-2-847].

q. Renunciation of Appointment as Executor (Personal Representative). Any person

named as an executor (personal representative) in a will may renounce such appointment by
appearing before the judge of probate and declaring the renunciation or by a certified instrument
in writing which must be filed and recorded in the judge of probate's office. [§ 43-2-25]. Letters
testamentary to others named in a will are permitted upon renunciation or failure of a named
executor (personal representative) to apply for such within 30 days after probate. [§ 43-2-26].

r. Failure of Executor (Personal Representative) to Apply for Letters Testamentary. An

executor should apply for letters testamentary within 30 days after probate. [§ 43-2-26]. If, for
whatever reason, there is a failure of executors (personal representatives) to apply for letters
testamentary and the residuary legatee fails to apply, refuses to accept or is unfit to serve, then the
principal legatee is entitled to letters of administration with the will annexed. Otherwise, such
letters may be granted to the same persons and in the same order as letters of administration are
granted in cases of intestacy. [§ 43-2-27].

F. ADMINISTRATION OF ESTATES

a. Jurisdiction of Probate Court. In regard to the administration of estates, the probate

court is a court of general and original jurisdiction. [See Ala. Const. 1901, § 144; 1975, § 12-13-
1(b)]. The circuit court can obtain jurisdiction over a pending administration of an estate only by
removing the administration from the probate court to the circuit court after letters of
administration have been issued. [§ 12-11-41; § 12-11-41.1; see Ex parte Terry, 957 So.2d 455,
457-58 (Ala. 2006); Ex parte McLendon, 824 So. 2d 700, 704 (Ala. 2001)]. After removal,

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jurisdiction of the administration of the estate remains exclusively with the circuit court, unless
Section 11-11-41.1 applies. Allen v. Estate of Juddine, 60. So. 3d 852 (Ala. 2010). Under Section
12-11-41.1, counties in which the judge is required to be learned in the law, a case may be
transferred back to the probate court under subsection (a).

The probate court must act upon the petition and thereby activate the proceedings by
appointing a personal representative of an estate before the circuit court can remove the
administration of the estate from the probate court. [Ex parte Smith, 61 So. 2d 1374; § 12-11-41].

The probate court cannot itself cause the removal of the administration of an estate as a
whole to a circuit court. [§§ 12-11-41, 43-8-198].

The administration of any estate may be removed from the probate court to the circuit court
at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed of any such estate, without assigning any
special equity. An order of removal must be made by the court, upon the filing a sworn petition
by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the
will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee,
distributee, executor, administrator or administrator with the will annexed and that, in the opinion
of the petitioner, such estate can be better administered in the circuit court than in the probate
court. [§ 12-11-41; see DuBose v. Weaver, 68 So. 3d 814 (Ala. 2011); Hodges v. Hodges, 72 So.
3d 687 (Ala. Civ. App. 2011)].

b. Granting Letters of Administration. A person who dies without making a valid will is
deemed to have died intestate. A person who dies with a valid will is deemed to have died testate.
The rules for administration of an estate are sometime different depending on whether the deceased
died testate or intestate. The probate court has authority to grant letters of administration as
follows:

(1) Where the intestate, at the time of his 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 residence, and no administration has been

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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. [§
43-2-40].

c. Order of Administration and Time of Administration. The administration of an

intestate estate must be granted to one of the following persons, both willing and satisfactory to
serve, in the stated order:

(1) The spouse, or

(2) The next of kin entitled to share in the distribution of the estate, or
(3) The largest in-state creditor of the estate, or
(4) Such other person as the judge of probate appoints.

In those counties with a population of 400,000 or more, or any county having an elected
general or county administrator, the county administrator may handle the administration of an
estate. [§ 43-2-42]. The probate court has no discretion in issuing letters of administration when
there is no question relating to the qualification of the person requesting the letters. [Ogle v.
Gordon, 706 So. 2d 707 (Ala. 1997)].

A spouse, the next of kin or largest in-state creditor must apply for letters of administration
within forty days after intestate's death or relinquish their right to administration. Any person with
a right to administration, however, may relinquish such right in the same manner as an executor
(personal representative). [§ 43-2-43].

An adverse interest in estate does not disqualify a person from being appointed an
administratrix. [Carleton v. Carleton, 84 So. 3d 84 (Ala. Civ. App. 2011)].

Funeral expenses are debts of the estate, even if paid after the decedent’s death. Thus, the
individual who paid the funeral expenses and became the largest creditor of the estate was entitled
the priority to be appointed administrator as the largest creditor. [Douglas v. King, 990 So. 2d 534
(Ala. 2004)].

d. Granting of Letters to Several Kindred Persons. If several persons of the same degree
of kindred to the intestate are entitled to the administration or when several people are equally
entitled to such, the court may in its discretion grant letters of administration to one or more of
equal standing. [§ 43-2-44].

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e. Priority Among Different Letters. 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 person appointed as a personal
representative is to recover the property and estates of the subsequently appointed personal
representative. However, the acts of the later appointed personal representative that were done in
good faith without notice of the first letters are not void for want of validity of appointment. [§ 43-
2-832].

f. When Letters May Be Granted. No letters of administration can be granted until the
expiration of five days after the death of the intestate is known. [§ 43-2-45].

g. County or General Administrators. Each judge of probate must appoint a suitable

person as a general administrator within the county. This person must take charge of the estates
of deceased persons or act as special administrator in the appropriate instance. This office expires
with the expiration of the term of the appointing judge of probate. [§ 43-2-170]. However, when
there is no general administrator, the judge may appoint the sheriff of the county. [§ 43-2-172].

h. Non-Resident Administrators. A non-resident of Alabama may not be appointed as an

administrator unless the non-resident is at the time the executor or administrator of the same estate
in some other state or jurisdiction who is duly qualified under the applicable laws of that state or
jurisdiction. [§ 43-2-22(a)]. The application filed by a non-resident for letters testamentary or of
administration must include his name and post office address. Any subsequent changes of address
must be by a written statement filed in the probate court granting the letters. [§ 43-2-190].

i. Administration of Estates of Persons Presumed Dead. 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 last place of domicile in Alabama are applied for, it is the duty of
the judge of probate, to whom the application is made, to accept and file the application.
Testimony must be taken with respect to whether the petitioner is entitled to such letters. If the
court is satisfied by the testimony that the applicant would be entitled to receive the letters were
the supposed decedent in fact dead, the court must advertise in a local newspaper, for four
consecutive weeks, that the application has been filed; the day of hearing must be set no sooner
than two weeks following the last notice. [§ 43-2-230].

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G. PROVISIONS APPLICABLE TO BOTH

EXECUTORS AND ADMINISTRATORS (PERSONAL REPRESENTATIVES)

NOTE: Under Section 43-8-1(22), “personal representative” is defined as follows:

Personal Representative. Includes executor, administrator, successor personal

representative, special administrator, and persons who perform substantially the same
function under the law governing their status.

a. Notice of Appointment. Executors and administrators (personal representatives) must

within one month from the grant of letters give notice of their appointment stating:

(1) The name of the deceased;

(2) The day on which letters were granted;
(3) By which court;
(4) The county; and
(5) Notify all persons having claims against the estate to present them within the time
limits set by law.

Notice can be given by weekly publication in a local newspaper once a week for three
consecutive weeks. If there is no local or county newspaper, notice should appear in a newspaper
published nearest to the courthouse or in an adjourning county. Actual notice must be given to
known or reasonably ascertainable creditors by the personal representative. In addition to
publishing a notice once a week for three successive weeks in the newspaper, the Code prescribes
that actual notice must be sent by first-class mail to the creditor's last known address within six
months from the grant of letters. [§§ 43-2-60 and 61].

b. Bonds. Every person appointed a personal representative or special administrator must

give bond payable to the judge of probate. 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 lacks power to sell or convey without court authorization. In lieu of securities on a bond,
the court may accept other collateral for the performance of the bond, including a pledge of
securities or other assets or a mortgage of land. The court may increase or decrease the bond any
time that such adjustment is necessary to protect the estate. [§ 43-2-851]. If a judge of probate
orders an insufficient bond or no bond when a bond should have been ordered, the judge of probate,
personally as well as the judge’s surety, may be liable to any injured party.

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A personal representative may be exempt from giving bond by an express provision in the
decedent's will. Nevertheless, the court may require a bond even though it has been exempted by
the will when in the court's own opinion the estate is likely to be wasted or upon affidavit of an
interested person alleging that that person's interest is or will be endangered from lack of security.
[§ 43-2-851].

c. Administrator Ad Colligendum. A judge of probate is permitted to appoint a special

administrator ad colligendum for the purpose of collecting and preserving the assets of a deceased
until letters testamentary or of administration have been properly issued. This special
administrator, under the direction of the judge of probate, can sell such goods that are perishable
or wasting upon notice as prescribed by the judge of probate. Similarly, the special administrator
may give receipts for moneys collected, satisfy liens and mortgages paid to him and preserve such
goods and chattels at a reasonable expense as determined by the probate court. [§ 43-2-47].
Because the special administrator ad colligendum is not a personal representative of an estate,
appointment of an administrator ad colligendum alone is insufficient to initiate the general
administration of an estate. [Ex parte Baker, 2015 WL 643759, *3-*4 (Ala. 2015)]. The authority
of the special administrator ad colligendum ends upon the issuance of letters testamentary or
administration. [§ 43-2-47(d); Ex parte Baker, 2015 WL 643759, *4 (Ala. 2015)].

d. Administrator Ad Litem. 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 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.
[§ 43-2-250].

Only a “personal representative” may bring a wrongful-death action under § 6-5-410.

According to Affinity Hospital v. Williford, an administrator ad litem is a personal representative
because, although the administrator ad litem is appointed for a special and limited purpose, that
purpose entails the fiduciary duties of deceased’s estate (including bringing a wrongful death
action). [21 So. 3d 712 (Ala. 2009)]. However, the court in Kirksey v. Johnson is critical of this
ruling, and the concurrence by Justice Bolin concludes that an administrator ad litem is not a
personal representative and thus cannot bring a wrongful-death action. [Kirksey v. Johnson, 166
So.3d 633, 649 (Ala. 2014); Golden Gate Nat'l Senior Care, LLC v. Roser, 94 So.3d 365 (Ala.
2012); Ex Parte Continental Motors, Inc., 2018 WL 3197479 (Ala. 2018)].

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The Probate Court does not have subject-matter jurisdiction to oversee the settlement of a
wrongful-death action or to oversee distribution of wrongful-death-proceeds proceeds. [Kirksey v.
Johnson, 166 So.3d 633, 648 (Ala. 2014)]. Further, a wrongful-death action cannot be brought by
the estate of the decedent; accordingly, the proceeds from a wrongful-death action are not part of
the decedent's estate. [Kirksey v. Johnson, 166 So.3d 633, 645 (Ala. 2014)].

e. Filing of Claims and Priorities of Debts. All claims against the estate of a deceased
must be presented within six months after the grant of letters testamentary or of administration.
Unless presented within the six months or five months after notice first published, they are forever
barred, and payment is prohibited. Provided, however, a creditor entitled to actual notice must be
allowed 30 days after notice to present the claim. Actual notice must be given from the personal
representative to creditors who are known or reasonably ascertainable. [§§ 43-2-60 and 61; § 43-
2-350; Sullivant v. Sullivan, 976 So. 2d 991 (Ala. 2007)]. A verified claim or statement must be
filed in the judge of probate's office which granted the letters testamentary. [§§ 43-2-350 and 43-
2-352]. Minors and people of unsound mind are allowed six months after the appointment of a
guardian or six months after removal of their disability to file a claim. [§ 43-2-351]. The debts
against the estate of the decedent must be paid in the following order [§ 43-2-371]:

(1) Funeral expenses;

(2) Fees and charges of administration;1
(3) Expenses of the last illness;
(4) Taxes assessed on estate of decedent prior to death;
(5) Debts to employees from services rendered in the years of decedent's death; and
(6) Other debts.

f. Exempt Property and Allowances. The surviving spouse is entitled to an exemption

from administration (and thus claims against the estate) for a homestead allowance in the amount
of $15,000. If there is no surviving spouse, each child, regardless of whether the child is a minor

1
Reasonable attorney fees and costs incurred by an heir of deceased beneficiary of will, in settled
actions against personal representative of testator's estate, alleging that personal representative was
mishandling and misappropriating assets of testator's estate, thereby adversely affecting the value
of beneficiary's estate, constituted fees and charges of administration for beneficiary's estate, for
purposes of statutory priority for payment of debts of estates of decedents. Thus, the payment of
attorney fees falls under Section 43-2-371(2) as a part of [t]he fees and charges of administration”
of the estate. Therefore, the payment of attorney fees has priority over the payment of all other
debts of the estate other than the funeral expenses. [Archer ex rel. Archer v. Estate of Archer, 45
So. 3d 1259 (Ala. 2010)].
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or whether the child was dependent on the decedent, is entitled to an equal share of the $6,000
allowance. [§ 43-8-110; Hines v. Enis, 39 So.3d 1164 (Ala. Civ. App. 2009)]. In addition, the
spouse or if no surviving spouse, such children jointly are entitled to exempt property of a value
not exceeding $7,500 in excess of security interests therein. This exemption applies to furniture,
automobiles, appliances, furnishings and personal effects. [§ 43-8-111]. Upon proof, the spouse
and children supported by the decedent are also entitled to a reasonable amount of money out of
the estate for their maintenance during the period of administration. [§ 43-8-112]. Generally, the
family allowance does not exceed $15,000 per year. However, that amount can be increased or
decreased by court order. [§ 43-8-113]. All of these exemptions are in addition to amounts left to
the spouse or children under the will or by means of intestate succession or an elective share.

g. Inventory of Estate. Every executor or administrator (personal representative) is

required to collect and take into his possession the decedent's property except the real or tangible
personal property may be left with or surrendered to the person presumptively entitled thereto
unless needed for administration or unless otherwise directed in a will. [§ 43-2-837].

Generally, within two months of appointment, a personal representative must also file an
inventory of all property of the decedent, including details of the debts accruing to the decedent.
However, the testator can by express provisions in the will exempt the personal representative
from filing an inventory. [§ 43-2-835]. General language in a will that grants broad discretion to
a personal representative in distributing property under that will does not satisfy the requirement
in § 43-2-835(b) that there be an “express provision” exempting the personal representative from
filing an inventory. Green v. Estate of Nance, 971 So. 2d 38 (Ala. Civ. App. 2007).

Nonetheless, the court can order an inventory if the judge determines that the estate is likely
to be wasted or any interested person will be prejudiced without an inventory. [§§ 43-2-835 and
836].

h. Appraisal and Setting Apart of Exemptions. The probate court may, if necessary,
appoint appraisers for the estate, who are to be charged with the duty of setting apart the exempt
personal property for the surviving spouse and/or minor child(ren). [§§ 6-10-80 and 81]. The
appraisers must also appraise the decedent's homestead. [§ 6-10-82]. If the value of the homestead
exceeds $6,000, the probate court must appoint three commissioners to set off the homestead
exemption. [§ 6-10-83]. If the persons interested in the decedent's estate are not satisfied with the
reports or allotments of the appraisers or commissioners, they may file exceptions in the probate
court. The rules governing notices, hearings and proceedings on such petitions, as well as
miscellaneous related matters, are found in Sections 6-10-85 through 107.

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Upon the showing of good cause, the probate court may authorize the executor or
administrator (personal representative) to keep the real and personal estate together for any period
the court deems advisable though not more than ten years. [§ 43-2-330].

i. Powers of Personal Representatives Without Prior Court Approval. Except as

restricted or otherwise provided by will or by an order of the court and subject to the priorities 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.

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(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 owners 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 (1) 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:

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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. [§ 43-2-
843].
These powers may be restricted or expanded by the will or by court order. [§ 43-2-843].

j. Powers of Personal Representative Requiring Prior Court Approval. Section 43-2-

844 enumerates the powers of a personal representative that require prior court approval. These
powers are as follows:

(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 (1) 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.

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(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 unpaid balances.
(7) Pay compensation of the personal representative. However, the will may expressly
authorize the personal representative to perform any of these functions without
prior court approval.

k. When an Annual or Partial Settlement is Required. Every executor or administrator

(personal representative) must make settlements annually unless waived in the will or at any other
time when necessary for the interest of the estate. [§ 43-2-500].

l. When Final Settlement May Be Made. A final settlement may be made 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 is otherwise capable of being settled. [§ 43-2-501].

m. Notice Required. Upon the filing of accounts, vouchers, evidence, and statements, the
judge of probate is required to appoint a day for settlement and must give notice of such date in a
county-wide newspaper for three consecutive weeks or by posting notices at public places
throughout the county. If the settlement is final the judges of probate must also give ten days’
notice of the day set for making settlement to every adult distributee residing in the state whose
place of residence is known or can be reasonably ascertained and to all sureties on the bond of
executors or administrators (personal representatives) as well. The notice must include the name
of the executor or administrator (personal representative), the name of the deceased, the day
appointed for settlement and the nature of the settlement, (i.e., whether annual or final.) [§ 43-2-
505].

n. Settlement by Consent Without Notice. When all the heirs and next of kin are of age
and proof is provided that all legal charges of the estate have been paid in full, the probate court,
upon 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 the event that a distributee is either a minor or of unsound mind and
has a duly appointed guardian, the guardian may approve a consent settlement on behalf of the
ward. The guardian, however, must be a disinterested party to the settlement. [§ 43-2-506].

o. Compelled Settlement. An executor or administrator (personal representative) may be

compelled to make a settlement following service of citation. A failure to file accounts and
vouchers on the day named in the citation will result in the probate court or other court having
jurisdiction of the estate seeking settlement by attachment or stating the account against the

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executor or administrator (personal representative) from the materials on file or other available
information and charging the individual with the assets which he or she may have handled. [§ 43-
2-530].

p. Presumption of Settlement. An estate is presumed settled 20 years and six months after
letters testamentary or letters of administration on such estate were issued. [§ 43-2-660]. Such
presumption may be raised by a petition filed, usually by the executor or administrator (personal
representative), with the probate court. The court must grant a hearing on the petition. [§ 43-2-
661].

q. Sale of Personal Property. Any part of the personal property of a decedent may be sold
by order of the probate court on the written application of the executor or administrator (personal
representative), verified by affidavit. Sale may be ordered for the payment of debts, to make
distribution among the distributees or legatees or to prevent waste or destruction of property likely
to waste or of a perishable nature.2 The sale of the latter must be proved beneficial to the estate.
[§ 43-2-410]. If the property is perishable, no notice of application for sale is required to be given
to adversely affected parties if the judge of probate is satisfied of the truth of the allegations
contained in the application. [§ 43-2-411]. The executor or administrator (personal representative)
must give notice of the day, place, and terms of sale as well as a description of the property for
three successive weeks by publication or posting. [§ 43-2-413]. Such sales may be for cash or on
credit not exceeding 12 months as the court may direct. [§ 43-2-415].

r. Sale of Real Estate. Lands may be sold by the executor or administrator (personal
representative) with the will annexed, for the payment of debts when the will otherwise gives no
power to sell. [§ 43-2-441]. This is also true when the deceased dies intestate. [§ 43-2-442].
However, in those instances there must be court approval prior to the selling of real property. [§
43-2-844]. If the lands of an estate cannot be equitably divided among the heirs or devisees, it can
be sold by order of the probate court having jurisdiction of the estate, upon written consent of an
adult heir or devisee. [§ 43-2-443].

2
In case law, perishable property, has been described as follows: “all that is necessary to be shown
is that the property in the hands of the court is likely to waste or be destroyed by keeping. In other
words, quoting from the foregoing case, “If it is shown that, by keeping the article, it will
necessarily become, or is likely to become, worthless to the creditor, and by consequence to the
debtor, ...” [116 Ala. 224, 22 So. 579], then it does not matter what the subject matter is. ‘It [can]
be cotton bales, live stock, hardware, provisions, or dry goods.’ McCreery v. Berney National
Bank, supra.” McCullough v. McCullough, 269 Ala. 417, 420, 113 So. 2d 499, 501 (Ala. 1959).
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s. The Application for Sale of Land. The application for the sale of lands either for the
payment of debts or for division must be made by the executor or administrator (personal
representative) in writing verified by affidavit to the probate court. The application must describe
the lands accurately and must give the names of the heirs or devisees and the places of their
residences. The application must also state whether any of the heirs or devisees are under the age
of 19 or of unsound mind, and it must name those heirs. [§ 43-2-444]. The probate court must
appoint a day, not less than 30 days from the time of the making of the application, for hearing the
application, and in the event heirs are either minors or of unsound mind, must appoint a guardian
ad litem to represent the infirmed party or parties. The guardian ad litem and all adult heirs or
devisees, must be notified at least ten days prior to the day set for the hearing. [§ 43-2-445].
Following the hearing of the application by the executor or administrator (personal representative),
the court may direct a sale of all or such portion of the real estate as may be necessary to pay the
debts, if the power is not otherwise provided. [§ 43-2-450]. A deed or patent is sufficient evidence
to authorize the court to proceed to hear the application. [§ 43-2-453]. Unless the probate court
has taken evidence by deposition showing the necessity of the sale, no order for sale may be
granted when minors or persons of unsound mind or possible unknown parties exist, whether or
not the allegations in the petition are denied by the appointed guardian. [§ 43-2-452].

Notice of the sale for three weeks by either publication or posting is required. [§ 43-2-
455].

t. Report and Examination of Sale. The executor or administrator (personal

representative) must within 30 days after a sale report on oath the proceedings to the court,
indicating the pecuniary interest of the executor or administrator (personal representative), if any,
in the sale. The probate court is to examine the sale and examine any witnesses relating to the
sale. [§ 43-2-459]. If it appears from the report of either the administrator or executor (personal
representative) that he was directly or indirectly the purchaser at the sale or otherwise had an
interest adverse to the heirs, the probate court shall set a day for hearing the report. All parties are
to be given ten days' notice of the hearing. [§ 43-2-460].

u. Vacation of Sale When Deemed Unfair. In the event the court is satisfied that the sale
was conducted unfairly or that the amount for which the land was sold is greatly less than its real
value, the probate court has the authority to vacate the sale either in whole or in part. Likewise,
should the court confirm that the sureties taken on notes or bonds of the purchasers or the security
given is insufficient, the sale may not be confirmed until sufficient security for the purchase money
is given to satisfy the court. If such security is not given within ten days, the sale must be vacated
as to the purchaser.

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When any sale of land is vacated, in whole or part, the probate court must direct another
sale in accordance with the general procedure as outlined above. [§ 43-2-461].

v. Confirmation of Sale. If the court is satisfied with all aspects of the sale, an order of
confirmation is to be made ten days after the report is filed. [§ 43-2-462]. The executor or
administrator (personal representative) must report to the probate court the payment of purchase
money for land sold on credit within 30 days following such payment. [§ 43-2-463]. Upon such
report of payment of purchase money, the court must order a conveyance to be made to such
purchaser. [§ 43-2-464].

w. Citation to Report Sale of Land. Should the executor or administrator (personal

representative) fail to properly report the sale of any land, the purchaser, on a motion in the probate
court, may have a citation issued requiring the executor or administrator (personal representative)
to appear before the probate court within 20 days of service to report the sale. In the event the
executor or administrator (personal representative) fails to appear following the issuance of the
citation, the probate court is to review all aspects of the sale on the day set or other day set by the
court to determine if it was regular and fair. The probate court, upon a determination that all
aspects of the sale were proper and the purchase money was paid by the purchaser, must authorize
a conveyance of title to the land to the appropriate purchaser. [§ 43-2-465].

x. Resignation, Death, or Removal of an Administrator or Executor (Personal

Representative). An executor or administrator (personal representative) may resign by submitting
a written resignation to be filed and entered on the record in the court having jurisdiction of the
matter. [§ 43-2-270]. The probate court having jurisdiction of the estate may grant letters of
administration in case of intestacy or letters of administration with the will annexed should an
administrator or executor (personal representative) die, resign, or be removed. [§ 43-2-272].
Grounds for removal of an administrator or executor (personal representative) include: imbecility;
intemperance; sickness rendering the individual incapable of discharging required duties; failure
to do any act when lawfully required by the judge of probate; maladministration of the estate; the
use of estate funds for personal benefit, or a prison or jail sentence of 12 or more months. [§ 43-
2-290 and § 43-2-291].

y. Successor Personal Representative. A successor personal representative has the same

power and duty as the original personal representative except as to any power made expressly
personal to the personal representative named in the will. [§ 43-2-845].

z. Compensation of Personal Representatives. The personal representative is entitled to

reasonable compensation for his or her services. Factors to be considered by the court in

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determining the amount include such things as the difficulty and novelty of the estate, the skill
required to perform the service, the customary fee charged in that locality, the amount involved
and the results obtained, the nature and the length of the professional relationship with the
decedent, the experience, reputation, diligence and ability of the personal representative.
Additional factors are also enumerated in Section 43-2-848.

Nevertheless, the fee shall not exceed two and a half percent of the value of all the property
received and under the possession and control of the personal representative, and two and a half
percent of all disbursements. However, the court may allow reasonable compensation for any
extraordinary service performed for the estate. [§ 43-2-848].

Notwithstanding the foregoing, the decedent or all of the affected beneficiaries can agree
in writing with the personal representative as to the amount or the method for determining the
compensation for the personal representative. This agreement will be binding on all parties
provided that the agreement is not unconscionable. [§ 43-2-848]. The court may allow
compensation or attorney fees up to the time of settlement. [§ 43-2-682].

Payment of compensation to a personal representative without prior court approval be must

be expressly authorized by the will. [§ 43-2-844(7); Wehle v. Bradley, 49 So. 3d 1203 (Ala. 2010),
distinguished by Ruttenberg v. Friedman, 97 So. 3d 114 (Ala. 2012)].

H. SMALL ESTATES ACT

A surviving spouse or person who is to inherit all or a portion of an estate is entitled to the
property of a decedent without waiting for the appointment of a personal representative or the
probate of will if all of the following conditions exist:

(1) The value of the entire estate does not exceed $25,000 (amount adjusted annually
to reflect adjustments in the Consumer Price Index);
(2) The decedent died a resident of the state of Alabama;
(3) No petition for the appointment of a personal representative is pending or has been
granted;
(4) At least 30 days have elapsed since the notice of the filing of the petition was
published as hereinafter provided.;
(5) All funeral expenses of the decedent have been paid or arrangements have been
made by the surviving spouse or distributee to pay for such;
(6) When the decedent died intestate, the awards due under the Alabama descent and
distribution statute have been determined by the judge of probate;

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(7) When the deceased died testate, the document purported to be the will must be
properly executed on its face, witnessed and attested in compliance with Alabama
law and filed in the judge of probate's office;
(8) Notice of the filing of a petition for summary distribution must be published one
week 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, then
notice must be posted at the county courthouse for one week; and
(9) All the 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 surviving spouse
or other distributee according to the following schedule of priority:
a. Funeral expenses;
b. Judges of probate fees;
c. Expenses incurred in the decedent's last illness
d. Taxes (state, county and municipal) which accrued prior to decedent's
death;
e. To secured creditors;
f. To unsecured lienholder;
g. To each remaining general unsecured creditor of the decedent; then
h. To those entitled to take under descent and distribution or to each devisee
entitled to take under any testamentary disposition of the decedent.
[§ 43-2-692]. When all the above conditions occur, the judge of probate shall enter an order
directing summary distribution of the estate. [§ 43-2-693].

a. Bank Accounts of Deceased Depositors. When a decedent dies leaving $5,000 or less
deposited in a bank, the bank, at its discretion, may pay the funds to:
(1) The surviving spouse directly, or
(2) If there is no spouse, to the adult children, or
(3) To the person having the actual custody and control of the minor children of the
deceased.
If the person having custody of the minor child(ren) is not the legal guardian of the
child(ren), a bond must be approved by the judge of probate in double the amount of the deposit
to be paid over by the bank.

In the event there is no surviving spouse or children, a bank may pay to the person who is
the next of kin of the deceased and who would inherit this personal property under the law of
distribution. For the bank to be fully protected, an affidavit of a reputable citizen as to the facts of
death of the depositor and the family relationship between the deceased and the party receiving the
deposit is required.

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Payment of a deceased depositor's account is limited under this provision. First, the bank
cannot pay if the accounts of the deceased total more than $5,000. Second, no payment may be
made by the bank before the lapse of 60 days from the date of the depositor's death. Finally, this
provision is inapplicable if letters testamentary or letters of administration have been issued to a
personal representative or if a proceeding is pending in a court having jurisdiction of the estate.
[§§ 5-5A-38 and 5-5A-39].

I. ADVANCEMENTS

A duty closely related to the administration of estates is the judge of probate's authority to
receive petitions, conduct the necessary proceedings, and decide on advancements made from an
estate. [§§ 43-8-50 through 54].

J. EXEMPTIONS

The judge of probate may receive petitions and conduct necessary proceedings on claims
for exemptions from executions, attachments and garnishments. As part of this jurisdiction, the
judge of probate has authority to receive petitions claiming a homestead or other exemption, to
conduct the necessary proceedings, and to grant final decrees awarding the exemption when
justified. The procedures to be followed are outlined in the following sections: claim and contest
of exemptions, Sections 6-10-20 through 43 (see Section 6-10-21 concerning recordation);
exemption from administration and payment of debts, Sections 43-8-110 through 115; and
exemptions to surviving spouses and minor children, Sections 6-10-80 through 107. Sections 6-
10-80 through 107 set forth the procedure to follow for the appointment of appraisers and the
procedure to follow for the hearing.

K. PROPERTY AND CONVEYANCES

The judge of probate will invariably be confronted with matters related to property and
conveyances. Some actions will be related to records, while others will be in relation to
proceedings in court.

a. General. The judge of probate has authority to partition personal, real or mixed property
held in joint ownership, and to partition or permit the sale of crops held in joint ownership upon
application. Property held by joint tenants may be partitioned, decrees may be issued for the sale
of property for distribution, and crops may be partitioned among joint tenants.

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Information on both property and conveyances is found in Title 35 of the Code. The
provisions regarding partition in probate court are explained in Sections 35-6-40 through 66;
recordation and registration generally, Sections 35-4-50 through 76; recordation necessary as to
purchasers, mortgagees, and judgment creditors, Sections 35-4-90 through 98; lost or unclaimed
property; Sections 35-12-1 through 6; 35-12-70 through 96; and liens, Sections 35-11-1 through
454.

b. Proof of Value. In 2012, Section 40-22-1 was amended to require a person presenting
a deed, bill of sale, or other instrument conveying any real or personal property within this state or
any interest in any such property to the judge of probate for recording to present proof of the actual
purchase price of property or actual value of the property. [Alabama Act 2012-494]. If proof is
not presented, the privilege or license tax will be based upon the assessed value of the property
and the person failing to submit the required proof shall be subject to monetary penalties for failure
to comply with the law. [Alabama Act 2012-494; [§ 40-22-1].

Subsection (h) provides: Any person who submits an instrument for recording pursuant to
this section and intentionally fails to submit proof of the value of the property or the actual
purchase price paid for the property as required in subsection (c) following a specific request for
such proof from the probate office or who presents false proof of same, in addition to payment of
the tax due as calculated on the actual value of the property, shall pay a penalty of one hundred
dollars ($100) or 25 percent of the privilege or license tax actually due, whichever is greater. The
judge of probate shall assess penalties as set out in subsection (h) to be paid in addition to the tax
due. [§40-22-1].

L. GUARDIANSHIPS

Under the format developed by the Alabama Uniform Guardianship and Protective
Proceedings Act, the responsibility of care for the person is under the guardianship provisions and
the responsibility for the care of one's property is under the conservator provisions. [§§ 26-2A-1
through 26-2A-160]. Generally speaking a guardian is responsible for food, clothing, medical,
and shelter issues relating to a minor or incapacitated adult.

a. General. The provisions relating to the guardian of the person are generally divided
into guardians of minors and guardians of incapacitated persons. [§§ 26-2A-72 through 26-2A-
111]. The guardians appointed under guardianships prior to January 1, 1988 have all of the same
powers as guardians and conservators under the Alabama Uniform Guardianship and Protective
Proceedings Act. [§ 26-2A-8].

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At any point in a proceeding, a court may appoint a guardian ad litem, who must be an
attorney, to represent the interest of a minor or other person if the court determines that
representation of the interest otherwise would be inadequate. If not precluded by conflict of
interests, a guardian ad litem may be appointed to represent several persons or interests. [§ 26-
2A-52.] Generally, fees for the guardian ad litem are paid from the estate. However, if the
Department of Human Resources is the petitioner the guardian ad litem’s fees for representation
of incapacitated person are properly taxed to the county department of human resources (DHR) as
costs in the event the assets of the estate in a protective proceeding or in a guardianship proceeding
are insufficient to pay them. [§ 26-2A-142; Calhoun County Dept. Of Human Resources v. Frye,
74 So. 3d 958 (Ala. Civ. App. 2011)].

b. Delegation of Parental Powers. A parent or guardian of a minor or incapacitated person

may delegate temporary powers regarding health, support, education or maintenance of the person
or property of the minor child or ward, except the power to consent to marriage or adoption of a
minor ward. This may be accomplished by a properly executed power of attorney. [§ 26-2A-7].

c. Testimony. Generally, witness testimony must be taken in open court. [Ala. Rule of
Civ. Pro. 43(a)]. In Greener v. Killough, 1 So.3d 93 (Ala. Civ. App. 2008) the court stated that a
probate court exceeded its discretion by allowing a physician to testify by telephone in a hearing
on a daughter's petition to be appointed guardian and conservator for her mother. However, in a
footnote, the court stated, “Nothing in this opinion should be construed as preventing the parties
from “taking testimony by agreement in a manner different from ... [the manner] provided [in Rule
43(a)] unless the court limits or prohibits such agreed manner.” Rule 43(a), Ala. R. Civ. P.
(emphasis added). We merely hold that in the absence of an agreement of the parties to accept
testimony by telephone, the trial court has no discretion to allow testimony by that means.”

d. Guardian of Minors.

1. Appointment. A person may become a guardian of a minor by either parental

appointment or by appointment by the court. [§ 26-2A-70]. A parent may appoint a
guardian for their unmarried minor by either a will or other writing that is signed by the
parent and attested to by two witnesses. [§ 26-2A-71]. A parental appointment becomes
effective under the enumerated circumstances under the statute, such as when there is no
surviving parent who has parental rights and the guardian files an acceptance with the court.
[§ 26-2A-71].

2. Objection by Minor of Fourteen or Older to Parental Appointment. A minor

who is 14 years of age or older may prevent a parental appointment or cause it to terminate

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by filing a written objection to the appointment with the probate court. However, the court
may in a later proceeding appoint the parental nominee or any other suitable person. [§
26-2A-72].

3. Court Appointment of Guardian. When there is no parent having parental rights

of a minor, a guardian may be appointed by the court. A parental appointment has priority.
However, if the parental appointee fails to file an acceptance of the appointment within 30
days, the court may proceed in making another appointment. [§ 26-2A-73].

The court may appoint a temporary guardian even if all parental rights have not
been terminated. The temporary guardian has the full authority of a general guardian.
Nevertheless, the temporary guardianship may not last more than six months. [§ 26-2A-
73].

4. Venue. The venue in a guardianship proceeding is where the minor resides or

is present at the time of the filing of the proceedings. [§ 26-2A-74].

5. Procedure, Duties and Terminations. Section 26-2A-75 establishes the

procedure for the court appointment of guardians. If the minor is 14 years of age or older,
the court shall appoint the person nominated by that minor unless that appointment would
be contrary to the child's best interest. [§ 26-2A-76].

The powers and duties of the guardian are enumerated in Section 26-2A-78 of the
Code of Alabama. Sections 26-2A-79 through 26-2A-81 of the Code of Alabama provides
for termination, resignation and removal of guardians.

e. Guardians of Incapacitated Persons. An incapacitated person is someone who is

incapable of handling their financial affairs because of mental illness or deficiency, physical illness
or disability, aging, drug use or other similar causes. [§ 26-2A-208].

1. Appointment. A guardian for an unmarried, incapacitated person may be

appointed by a parent by will or other writing signed by the parent and attested to or
acknowledged by at least two witnesses. The spouse of a married, incapacitated person
may appoint a guardian for the incapacitated person by a will or other writing which is
signed by the spouse and attested to or acknowledged by at least two witnesses. [§ 26-2A-
100].

2. Jurisdiction. In 2010, the Legislature passed the Alabama Uniform Adult

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Guardianship and Protective Proceedings Jurisdiction Act. [Alabama Act 2010-500 §§ 26-
2B-101-503]. This Act determines which state has jurisdiction over interstate adult
guardianship cases. [§§ 26-2B-101-503]. It also provides that Alabama can decline to
exercise jurisdiction if Alabama acquired jurisdiction based on unjustifiable conduct or
may decline jurisdiction if Alabama determines that another state is a more appropriate
forum. [§ 26-2B-207, § 26-2B-206].

The act provides for a transfer of a guardianship or conservatorship to another state

from Alabama. [§ 26-2B-301]. The act provides for a transfer of a guardianship or
conservatorship from another state to Alabama. [§ 26-2B-302].

3. Venue. The venue is the place where the incapacitated person resides or is
present at the time of the commencement of the proceedings. And, if the incapacitated
person is admitted to an institution pursuant to a court order, venue can also be in the county
in which the court is located. [§ 26-2A-101].

4. Procedure and Notice. An incapacitated person or an interested person may

petition for the appointment of a limited or general guardian. The court shall appoint an
attorney to represent the incapacitated person unless he or she already has counsel. [§ 26-
2A-102].

Notice and other aspects of the proceeding are covered under Sections 26-2A-102
and 26-2A-103 of the Code. Notice must be served personally on the alleged incapacitated
person who may not waive notice.

5. Priorities and Duties. Section 26-2A-104 provides a numerical listing of

priorities for guardianship with the spouse and other relatives having the highest priority.
Nevertheless, unless for good cause, the court shall appoint as guardian the person
nominated in the incapacitated person's most recent durable power of attorney. [§ 26-2A-
104].

A private non-profit corporation can be appointed as guardian for a person

designated as "developmentally disabled" and determined by the probate court as needing
some degree of guardianship. Developmentally disabled is defined as a person whose
impairment of general intellectual functioning manifested by age 22 and resulted in mental
retardation, cerebral palsy, epilepsy or autism. Furthermore, the private non-profit
corporation's board is required to have a minimum 35% of its membership representing
parents or siblings of persons with developmental disabilities. The corporation must also

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be set up to provide a lifetime of service to those persons placed under its care. [§ 26-2A-
104.1].

The general powers and duties of guardians are also enumerated. [§ 26-2A-105].

6. Temporary Guardian. If an emergency exists and an incapacitated person has

no guardian and no other person appears to have authority to act, the court, without notice,
may appoint a temporary guardian. Generally, the authority of a temporary guardian may
not extend beyond 30 days. [§ 26-2A-107]. However, under the Alabama Uniform Adult
Guardianship Act, when issues concerning interstate jurisdiction exist, an emergency
guardian can be appointed for up to 90 days. [§ 26-2B-204].

Moreover, if an appointed guardian is not effectively performing his or her duties,

the court may appoint a temporary guardian for a period not to exceed six months. [§ 26-
2A-107].

7. Corporate Guardians for Developmentally Disabled. An Alabama private non-

profit corporation that is qualified under the Internal Revenue Code as a 501(c)(3) tax
exempt corporation may be designated to serve as a guardian for a person with
developmental disabilities. The Alabama Department of Mental Health is required to assist
the courts in the implementation of this new law and is required to develop guidelines for
the provisions of services to be performed by the corporation under this section. [§ 26-2A-
104.1].

f. Alabama Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

[§§ 26-2B-101–503].

1. Communication Between Courts. A court of this state may communicate with

a court in another state concerning a proceeding arising under this act. The court may allow
the parties to participate in the communication. If the parties are not allowed to participate
in the communication, the court shall give all parties the opportunity to present facts and
legal arguments before the court issues an order establishing jurisdiction. [§ 26-2B- 104].

Except for communications concerning schedules, calendars, court records, and

other administrative matters:

(a) the court shall make a record of any communication under this section; and
(b) promptly inform the parties of the communication and grant them access to

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the record. [§ 26-2B- 104].

2. Cooperation Between Courts. An Alabama court may request another state

court to do any of the following:

(a) hold an evidentiary hearing;

(b) order a person in that state to produce evidence or give testimony;
(c) order an evaluation or assessment of the respondent;
(d) order an investigation of a person involved in a proceeding;
(e) forward to our court a certified copy of the transcript or other record of a
hearing, any evidence, evaluation or assessment, etc.;
(f) issue orders to assure the appearance of necessary persons;
(g) issue an order authorizing the release of medical, financial, criminal, or
other relevant information in that state. [§ 26-2B-105].

3. Taking Testimony in Another State. The court on its own motion may order
that the testimony of an out-of-state witness be taken in another state and may prescribe
the manner and the terms upon which the testimony is to be taken. For example: testimony
of an out-of-state witness may be offered by deposition. A witness may be deposed or
testify by telephone or audiovisual or other electronic means. [§ 26-2B-106].

4. Definitions; Significant Connection Factors. “Home state” is the state in which

the respondent was physically present, including temporary absences, for at least six
consecutive months immediately before the filing of the petition; (or if no state meets that
criteria, where the respondent was physically present, including any temporary absences,
for six consecutive months prior to that time) “Significant-connection state” is a state,
other than the home state, with which a respondent has a significant connection other than
mere physical presence and in which substantial evidence concerning the respondent is
available. [§ 26-2B- 201].

5. Jurisdiction. When the jurisdiction is contested, the proceeding may be

removed to circuit court by the court’s own motion or in accordance with Section 26-2-2.
This provision does not limit the jurisdiction of Alabama probate courts with Equity
Jurisdiction. [§ 26-2B- 203].

6. Special Jurisdiction. A court of this state lacking jurisdiction under Section 26-
2B-203 has special jurisdiction to do any of the following:

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(a) appoint an emergency guardian for a respondent who is physically present

in this state (not exceeding 90 days);
(b) issue a protective order with respect to real or tangible personal property
located in this state;
(c) appoint a guardian or conservator for an incapacitated or protected person
for whom a provisional order to transfer the proceeding from another state
has been issued under procedures similar to Section 26-2B-301.

If Alabama was not the respondent’s home state on the date the petition for an
emergency guardian was filed, the court shall dismiss the proceeding at the request of the
court of the home state (whether dismissal is requested before or after the emergency
appointment).

The court may entertain successive petitions based upon its special jurisdiction
under this section provided that the court receives no request for dismissal from the court
of the respondent’s home state and the court determines that the need for guardianship
and/or conservatorship under this section continues. [§ 26-2B-204].

7. Appropriate Forum. An Alabama court may decline to exercise its jurisdiction

if it determines at any time that a court of another state is a more appropriate forum. If
Alabama declines to exercise its jurisdiction under subsection (a), it shall either dismiss or
stay the proceeding.

The court may impose any condition the court considers just and proper, including
the condition that a petition for the appointment of a guardian or issuance of a protective
order be filed promptly in another state. [§ 26-2B-206].

8. Jurisdiction Declined by Reason of Conduct. If Alabama determines that it

acquired jurisdiction to appoint a guardian or issue a protective order because of
unjustifiable conduct, the court may:

(a) decline to exercise jurisdiction;

(b) exercise jurisdiction for the limited purpose of fashioning an appropriate
remedy to ensure the health, safety, and welfare of the respondent or the
protection of the respondent’s property or prevent a repetition of the
unjustifiable conduct, (including staying the proceeding until a petition for
the appointment of a guardian or issuance of a protective order is filed in a
court of another state having jurisdiction); or

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(c) continue to exercise jurisdiction. [§ 26-2B-207].

9. Information to Be Submitted to Court. Except as otherwise provided in this

section, each party, in its first pleading or in an attached affidavit, shall give information,
if reasonably ascertainable, under oath as to the respondent’s present address or
whereabouts, the places and addresses where the respondent has lived during the last five
years. The affidavit required by this section is based upon the UCCJEA affidavit (child
custody).

As noted in the comments to that code provision, this provision allows for the
nondisclosure of information when disclosure might place the incapacitated individual at
risk.

Use of the particular form in the commentary is not mandated, however, the content
is mandated. [§ 26-2B-210].

10. Transfer of Guardianship or Conservatorship to Another State.

(a) Notice. Notice of a petition must be given to the persons that would be
entitled to notice of a petition in Alabama for the appointment of a guardian
or conservator under current law. On the court’s own motion or on request
of the guardian or conservator, the incapacitated or protected person, or
other person required to be notified of the petition, the court shall hold a
hearing on a petition to transfer to another state. [§ 26-2B-301].
(b) Provisional Order. The court shall issue a provisional order provisionally
granting a petition to transfer a guardianship or conservatorship; and shall
direct the guardian to petition for guardianship or conservatorship in the
other state if the court is satisfied that the guardianship or conservatorship
will be accepted by the court in the other state and the court finds that:
(1) protected person will move permanently to other state or has
significant connections to other state;
(2) no objection to transfer or transfer not contrary to interest of
protected person; and
(3) adequate arrangements have been made for protected person’s
property. [§ 26-2B-301].
(c) Guardian Ad Litem. The court may appoint a guardian ad litem to
represent the respondent and may require prepayment of the guardian ad
litem fees. [§ 26-2B-301].

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11. Accepting Guardianship or Conservatorship Transferred from Another

State.

(a) Notice. Notice of the petition must be given:

(1) To the same persons who would be entitled to notice in Alabama
and the transferring state; and
(2) Same manner as notice is required to be given in Alabama. [§ 26-
2B-302].
(b) Hearing. The court shall hold a hearing on the petition on request of:
(1) the guardian or conservator;
(2) the incapacitated or protected person;
(3) or other person required to be notified of the proceeding; or
(4) on the court’s own motion. [§ 26-2B-302].
(c) Petition. The petition must include the following:
(1) a certified copy of the other state’s provisional order of transfer.
(2) an inventory of the protected person’s estate as of the date of the
petition
(3) proof of the conservator’s bond; and
(4) final accounting. [§ 26-2B-302].
(d) Provisional Order. The court shall issue a provisional order granting the
petition filed unless:
(1) an objection is made and the objector establishes that transfer of the
proceeding would be contrary to the interests of the incapacitated or
protected person; or
(2) the guardian or conservator is ineligible for appointment in
Alabama.
(3) petitioner fails to comply with the provisions of subsection (a). [§
26-2B-302].
(e) Final Order. The court shall issue a final order accepting the proceeding
and appointing the guardian or conservator as guardian or conservator in
Alabama:
(1) upon its receipt a final transfer order from the other state; and
(2) proof or compliance with Alabama’s bond law. [§ 26-2B-302].
(f) Modification. Not later than 90 days after issuance of a final order
accepting transfer, the court shall determine whether the guardianship or
conservatorship needs to be modified to conform to the law of this state.
Such modification may include, among other things, an inventory or an

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accounting as required pursuant to Alabama law. [§ 26-2B-302].

(g) Form. A sample “General Information and Asset Summary Sheet” is in the
Alabama Comment. Although the use of this specific form is not mandated
by this section, it is designed to provide the court with some of the
information required under subsection (a). [§ 26-2B-302].

12. Recording and Recognition of Orders from Other States. An out-of-state

guardian or conservator may record an order in Alabama by recording certified copies of
the order and letters of office as a foreign judgment in an Alabama court:

(a) after giving notice to the appointing court of their intent to register; and
(b) if a petition for the appointment of a guardian or conservator is not pending
in Alabama. [§§ 26-2B-401 and 402].

13. Effect of Recording. After recording the out-of-state guardian or conservator

may exercise in Alabama all the powers authorized under Section 26-2A-160 (Foreign
conservator). [§ 26-2B-403].

g. Guardian for Incompetent Veteran.

1. To Receive Veterans' Benefits. Whenever the Veterans' Administration

requires that a guardian be named for a veteran ward before the United States will pay any
benefits, the procedure for such appointment and the limitations of the appointment are set
forth in Sections 26-9-1 through 26-9-19 of the Code of Alabama.

2. Commitment of Incompetent Veterans to Veterans' Hospital. Any incompetent

veterans who are eligible for treatment in a United States Veterans' Hospital may be
directed by an Alabama court to a Veterans' Hospital for treatment. [§ 26-9-13].

3. Sale and Purchase of Real Estate. The guardian of the veteran ward may invest
the ward's funds by making real estate loans and may purchase a home or farm for the
ward. The title to the land is held in the name of the ward. Any real property purchased
by the guardian for the ward must be free and clear from any encumbrance. [§ 26-9-10].

h. Guardian for Handling Funds from Governmental Entities. A recipient of social

security or other public assistance who appears to be physically or mentally incapable of managing
his or her monthly assistance payments and who has no guardian may have a legal representative
appointed to receive and disburse the recipient's assistance payments. This is done through a

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petition to the judge of probate with the approval of the Alabama Department of Human Resources.
[§ 38-1-3].

It is important to note that the Social Security Administration takes the position that it is
not bound by the court appointments of a state judge of probate. While they often accept the court
appointed guardian or conservator, they have their own rules and procedures to appoint a
representative payee for social security payments.

M. CONSERVATOR OF PROPERTY

a. In General. The Alabama Uniform Guardianship and Protective Proceedings Act

distinguishes between a guardian of the person and a conservator of the estate of a minor or
incapacitated person. (The duties of a guardian appointed prior to January 1, 1988, relating to the
property of a ward will be performed by a conservator. Curators appointed under Chapter 26-7A
(repealed) are considered conservators after January 1, 1997 and have the powers and duties of a
conservator pursuant to Chapter 26-2A subject to limits imposed by the court on the curator.) [§
26-2A-9].

Upon petition and after notice and hearing in accordance with the provisions of the act, the
court may appoint a conservator. [§ 26-2A-130].

b. Removal. A guardianship proceeding may be removed from probate court to circuit

court at any time prior to final settlement by the guardian, guardian ad litem, next friend of the
ward, or anyone entitled to support out of the estate of the ward. [§ 26-2-2]. Under limited
circumstances, the circuit court may remand the case back to the probate court, but only in those
counties where the judge of probate is required to be learned in the law. [§ 26-2-3]. The removal
of a conservatorship proceeding from probate court to circuit court is governed by the statute
addressing the administration or conduct of any guardianship or conservatorship, not the statute
governing the removal of administration of estates from probate court. [Hoff v. Goyer, 107 So. 3d
1085 (Ala. 2012); § 26-2-3].

c. Venue. Venue is where the protected person resides or in any place where the property
of the protected person is located if that person does not reside within Alabama. [§ 26-2A-101].

d. Petition, Notice and Hearing. The petition must furnish the court with certain
information which is in the statute. [§ 26-2A-133]. The provisions for notice and hearing are quite
specific. [§§ 26-2A-134 and 26-2A-135].

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Among others, notice must be given to the person alleged to be incapacitated, his or her
spouse, and adult children, or if none, his or her parents. Notice must be served personally on the
alleged incapacitated person. Notice to other persons as required by subsection (a)(1) must be
served personally if the person to be notified can be found within the state. In all other cases,
required notices must be given as provided in Section 26-2A-50(d). The person alleged to be
incapacitated may not waive notice. [§ 26-2A-103]. If the incapacitated person is a minor, the
following must also be given notice: (1) the minor if 14 years old or older; (2) the person having
the principal care of the minor; and (3) the parents of the minor. [§ 26-2A-75].

e. Court's Protective Powers. The court is to use its extensive powers of the protected
person's estate in a manner to encourage the development of maximum self-reliance and
independence of a protected person. [§ 26-2A-136].

After establishing the necessity for a conservator, the court is authorized to make protective
arrangements for the protected person's property without appointing a conservator. The court may
appoint a special conservator to assist with the protective arrangements. [§ 26-2A-137]. The court
may also authorize the transfer of oil, gas, and other mineral rights of a protected person without
appointing a conservator. [§ 26-2A-137(b)].

f. Testimony. Generally, witness testimony must be taken in open court. [Ala. Rule of
Civ. Pro. 43(a)]. In Greener v. Killough, 1 So.3d 93 (Ala. Civ. App. 2008) the court stated that a
probate court exceeded its discretion by allowing a physician to testify by telephone in a hearing
on a daughter's petition to be appointed guardian and conservator for her mother. However, in a
footnote, the court stated, “Nothing in this opinion should be construed as preventing the parties
from “taking testimony by agreement in a manner different from ... [the manner] provided [in Rule
443(a)] unless the court limits or prohibits such agreed manner.” Rule 43(a), Ala. R. Civ. P.
(emphasis added). We merely hold that in the absence of an agreement of the parties to accept
testimony by telephone, the trial court has not discretion to allow testimony by that means.”

g. Priorities. Section 26-2A-138 establishes priorities for appointment as a conservator.

A person within several of the categories of priorities may designate a substitute and transfer the
priority to the substitute. The court may select a conservator with a lower priority if it is in the
best interest of the protected person. [§ 26-2A-138].

h. Bond. The court must require a conservator to post bond unless the protected person
had specifically exempted the conservator from giving bond in the document nominating the
conservator. The judge of probate may incur personal liability for failing to order a required bond
or for ordering an insufficient bond. Generally, the bond must be in an amount of the aggregate

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capital value of property within the conservator's control, plus one year's estimated income, and
minus the value of the securities or land which the conservator cannot sell or convey without court
authorization. [§ 26-2A-139].

i. Compensation. Conservators, attorneys and others are entitled to reasonable

compensation from the estate for the services they have rendered. [§ 26-2A-142].

j. Inventory, Records and Accounts. Within 90 days after appointment, a conservator

shall prepare and file a complete inventory of the estate subject to the conservatorship. A copy
shall be furnished to a protected person who is at least 14 years old if practicable. The parent or
guardian with whom the protected person resides shall also be given a copy. [§ 26-2A-146]. The
conservator must give an accounting to the court at least every three years. [§ 26-2A-147].

k. Title to Property. The appointment of a conservator vests in the conservator title as

trustee to all of the property of the protected person in the conservator, or to the part of the property
specified in the order. This includes the title to any property currently held or thereafter acquired
and includes previously held property for the protected person. [§ 26-2A-148].

l. Recording of Conservator's Letters. Subject to the general statutes governing the filing
or recordation of documents of title to land or other property, letters of conservatorship and orders
terminating conservatorships may be filed or recorded to give record notice of title between the
conservator and the protected person. [§ 26-2A-149].

m. Conflict of Interest. The sale to or purchase from a conservator, spouse, agent or

attorney of a conservator, any person related to a conservator by blood or marriage within the
fourth degree, or any corporation, trust or other organization in which a conservator has a
substantial beneficial interest is voidable unless approved by the court. [§ 26-2A-150].

n. Powers. Section 26-2A-152 of the Code of Alabama divides the powers of a conservator
into (1) actions that may be taken without court authorization or confirmation, and (2) actions that
require court authorization. This section should be carefully reviewed prior to performing any
action relating to real property. Furthermore, two additional sections concerning conservator's
powers should also be reviewed. They are as follows:

§ 26-2A-153 Distributive Duties and Powers of a Conservator.

§ 26-2A-154 Enlargement or Limitation of Powers of a Conservator.

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o. Standard of Care and Performance. A conservator is required to use the same standard
of care in his or her dealings that would be exercised by a prudent person dealing with the property
of another. However, if a conservator has special skills or is appointed as a conservator on the
basis of representations of special skills or expertise, the conservator is under a duty to use those
skills. [§ 26-2A-145].

p. Failure of Conservator to Obey Process to Appear and File Accounts and Vouchers.
If a conservator fails to obey any court order requiring him or her to appear and file his or her
accounts and vouchers for a final or partial settlement, the probate court may, by attachment,
compel his or her appearance and may, if on appearance he or she refuses to file such accounts and
vouchers or to show good cause for his or her omission, imprison him or her for a period not
exceeding six months. [§ 26-5-35].

N. HEARINGS FOR COMMITMENT TO

MENTAL INSTITUTIONS

a. Petition for Hearing. When any person desires to have another person involuntary
committed to the custody of the Alabama State Department of Mental Health or other such facility,
a petition executed under oath must be filed with the judge of probate of the county in which the
respondent, the person who is the subject of the hearing, is located. The petition must contain:

(1) The name and address of the respondent;

(2) The name and address of the respondent's spouse, legal counsel or next of kin, if
known;
(3) The reason the petitioner believes the respondent is mentally ill;
(4) A detailed description of specific acts, behavior, or threats evidencing the person's
mental illness and threat of harm to himself or others; and
(5) The names and address of other persons with knowledge of such person's mental
illness who could be called as a witness; [§ 22-52-1.2] and
(6) The petition may be accompanied by any other relevant affirmation.

b. Review of Petition by Judge of Probate. The judge of probate is required to review

such petitions immediately and require the petitioner to be sworn and answer under oath questions
regarding the petition and the person sought to be committed. The judge will order the petition
dismissed without further proceedings if it appears from either the petition or testimony that the
petition is totally without merit. [§ 22-52-2].

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c. Service of Notice by Sheriff. When the petition has been reviewed, the judge of probate
is to order the sheriff of the county where the respondent is located to serve the respondent with a
copy of the petition and the order for a hearing. This notice must include:

(1) The time, date, and place of the hearing;

(2) Clear statement of the purpose and possible consequences of the proceedings;
(3) Alleged factual basis for the proposed commitment;
(4) Statement of the legal standards on which commitment is authorized; and
(5) List of names and addresses of possible witnesses.
Adequate notice of a hearing must be given to the respondent. [§ 22-52-3].

d. Appointment of Attorney and Guardian Ad Litem for Persons Sought to Be

Committed. When the petition has been filed, the judge of probate must appoint a guardian ad
litem to represent and to protect the rights of the respondent. If the judge of probate determines
that the respondent either lacks the funds with which to employ an attorney or the mental ability
to secure the services of an attorney, the judge of probate is responsible for appointing an attorney
to represent the person. The attorney may be the same person as the guardian ad litem. The judge
of probate shall immediately inform the attorney of his appointment. No statement made or act
done by the respondent in the presence of the judge of probate prior to obtaining an attorney shall
be considered by the judge of probate in determining whether the respondent should be committed.
[§ 22-52-4].

The judge of probate is also required to appoint an attorney to serve as the advocate in
support of the petition to commit and in all related matters. Such attorney is unnecessary in the
event that the person or persons filing the petition employ an attorney to appear in support of the
petition. [§ 22-52-5].

The Alabama Department of Mental Health or designated mental health facility must be
informed of the pendency of the petition and the date of the final hearing to commit. [§ 22-52-6].

e. Person to Be Committed Brought Before Judge of probate. When a petition has been
filed seeking to have limitations placed upon the liberty of a respondent pending the outcome of a
final hearing on the merits, the judge of probate is to order the sheriff of the county where the
respondent is located to serve a copy of the petition upon the respondent and bring the respondent
before the judge of probate immediately. The judge of probate is then to determine from an
interview with the respondent and other available persons, what limitations if any should be
imposed on the person's liberty and if any temporary treatment is required pending further
hearings. If limitations on the respondent's liberty is ordered, the judge of probate may order the

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respondent detained at a designated mental health facility or hospital. [§ 22-52-7].

f. When Limitations on Liberty Permitted Pending Final Hearing. No limitation is to
be placed on such person's liberty nor treatment imposed unless it is necessary to prevent a person
from doing substantial and immediate harm to himself or others, or to prevent the respondent from
leaving the jurisdiction of the court. The respondent is not to be placed in a jail or other detention
facility for persons accused or convicted of committing crimes. [§ 22-52-7]. See Lynch v. Baxley,
744 F.2d 1452 (11th Cir. 1984).

g. Medical Examination Can Be Ordered. The judge of probate is authorized to order

medical or mental health examination of the respondent and order the sheriff to compel such
attendance at designated times or places. If temporary treatment or admittance to a hospital is
ordered, such treatment shall be supervised by a licensed medical doctor or qualified mental health
professional who has willingly consented to admit and treat the respondent. [§ 22-52-7].

h. When Probable Cause Hearing Held. When a respondent sought to be committed has
any limitation imposed upon his liberty or temporary treatment imposed, the judge of probate is to
set a probable cause hearing within seven days of such imposition. If the judge of probate finds
that probable cause exists and that such respondent should be detained temporarily, and, further,
that temporary treatment would be in the best interest of the respondent, an order stating such and
setting the date, time and place of a final hearing on the merits must be entered. [§ 22-52-8].

i. Final Hearing: When. The final hearing must be held within thirty days of the date the
person was served with a copy of the petition. [§ 22-52-8].

j. Conduct of Hearings. The following rules apply to all hearings, including probable
cause hearings and final hearings for involuntary commitment:

(1) The respondent shall be present unless, prior to the hearing, the attorney for such
person has filed in writing a waiver of the presence of such person on the ground
that the presence of the respondent would be dangerous to such person's physical
or mental health or that such person's conduct could reasonably be expected to
prevent the hearing from being held in an orderly manner, and the judge of probate
has judicially found and determined from evidence presented in an adversary
hearing that the respondent is so mentally or physically ill as to be incapable of
attending such proceedings. Upon such findings an order shall be entered
approving the waiver.
(2) The respondent shall have the right to compel the attendance of any witness who
may be located anywhere in the state of Alabama and to offer evidence including

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the testimony of witnesses, to be confronted with the witnesses in support of the

petition, to cross-examine them and to testify in his own behalf, but no such person
shall be compelled to testify against himself. The attorney representing the
respondent shall be vested with all of the rights of said person during all of the
hearings if such person is not present in court to exercise his rights.
(3) The judge of probate shall cause the hearing to be transcribed or recorded
stenographically, mechanically or electronically and shall retain such transcription
for a period of not less than three years from the date the petition is denied or
granted and not less than the duration of any commitment pursuant to such hearings
(4) All hearings shall be heard by the judge of probate without a jury and shall be open
to the public unless the respondent or his attorney requests in writing that the
hearings be closed to the public.
(5) The rules of evidence applicable in other judicial proceedings in this state shall be
followed in involuntary commitment proceedings. [§ 22-52-9].

k. Findings by the Judge of probate. If at the final hearing the judge of probate finds,
based on clear and convincing evidence, that the respondent meets the criteria for involuntary
commitment, an order shall be entered for either outpatient treatment or inpatient treatment. The
least restrictive and available alternative must be ordered. [§ 22-52-10.1].

l. Outpatient Treatment. A respondent may be committed to outpatient treatment if the

probate court finds, based upon clear and convincing evidence, that the respondent is mentally ill
and as a result of the illness will, if not treated, continue to suffer mental distress and experience
deterioration of the ability to function independently. The court must also find that the respondent
is unable to make a rational and informed decision as to whether treatment for mental illness would
be desirable. [§ 22-52-10.2].

The probate court will not order outpatient treatment unless a designated mental health
facility has consented to treat the respondent on an outpatient basis under the terms and conditions
set forth by the probate court. The order for outpatient treatment shall also contain the general
condition that the respondent follow the directives and treatment established by the designated
mental health facility. An order for outpatient treatment shall not exceed 150 days. [§ 22-52-10.3].

Any material noncompliance with the outpatient treatment order shall be reported in
writing immediately by the designated mental health facility to the probate court and the report is
required to be sworn. The report will set forth the need to revoke the outpatient order. If at the
hearing to consider the motion for revocation of the outpatient treatment order, the probate court

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finds, based upon clear and convincing evidence, that the conditions of outpatient treatment have
not been met, the probate court may order commitment to inpatient treatment. [§ 22-52-10.3].
The county will not be financially responsible for the costs of outpatient mental health
services. [§ 22-52-10.3].

m. Inpatient Treatment. The probate court will order a respondent committed to inpatient
treatment if it finds, based on clear and convincing evidence, that:

(1) The respondent is mentally ill;

(2) As a result of the mental illness, the respondent poses a real and present threat of
substantial harm to self and/or others;
(3) The respondent will, if not treated, continue to suffer mental distress and experience
deterioration of the ability to function independently; and
(4) The respondent is unable to make a rational and informed decision as to whether
treatment for mental illness would be desirable.

[§ 22-52-10.4]. The least restrictive alternative necessary and available for the treatment of the
respondent’s mental illness shall be ordered. [§ 22-52-10.1]. If no treatment is presently available
but that confinement is necessary to prevent harm to himself and others, the order committing the
respondent shall provide that, should treatment for the respondent's mental illness become
available while the respondent is confined, such treatment will be made available to him
immediately. [§ 22-52-10.4].

The probate court may order that the respondent be committed to inpatient treatment at
either a state mental health facility or a designated mental health facility. An order for inpatient
treatment shall not exceed 150 days. The county will not be financially responsible for the costs
of inpatient mental health services. [§ 22-52-10.5].

A petition for renewal of an inpatient commitment may be filed by the director of a state
mental health facility or his designee at least 30 days prior to the expiration of the current
commitment order. The petition, together with a copy of the original commitment order and copies
of any subsequent renewal commitment orders shall be filed with the probate court in the county
where the facility is located. [§ 22-52-10.6].

Whenever it becomes necessary that a special judge of probate is needed with regard to the
renewal of commitment orders, it will be the responsibility of the judge of probate in the county
so affected to determine, select and appoint the special judge of probate who shall be paid that
compensation as determined by the judge of probate, not to exceed $100 per case. The county

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where the hearing for renewal is held shall be allowed a fee of $20 per case to compensate the
county for additional record keeping. [§ 22-52-10.6].
The qualifications for a special judge of probate is that he shall be:

(1) A citizen of Alabama;

(2) Previously served for a minimum of six years as an Alabama judge of probate or
shall be licensed to practice law in this state;
(3) Take the present oath of office upon entering his official duties; and
(4) Serve without bond.

[§ 22-52-10.6]. Any hearing conducted shall be held in the facilities where the person committed
is a patient. An attorney is to be appointed to serve as guardian ad litem to represent and protect
the rights of the respondent. The written acceptance of the appointment shall be returned to the
judge of probate at least five days prior to the hearing.

Adequate written notice shall be provided to the respondent prior to the hearing. The
Commissioner of the Alabama Department of Mental Health shall designate one or more members
of his staff to serve as advocate in support of the petition and such advocate shall be required to be
an attorney. The hearing shall be conducted in accordance with Section 22-52-9. A copy of the
order shall be forwarded to the probate court having original jurisdiction. The burden of proof
shall be to prove, based on clear and convincing evidence, the criteria as prescribed in this article.
The Alabama Department of Mental Health shall provide the advocate in support of the petition
and the expert witness at no cost to the State General Fund; and all other costs allowable by law
shall be paid as prescribed in Section 22-52-14. [§ 22-52-10.6].

Any order renewing an order for inpatient treatment shall not exceed a period of one year.
[§ 22-52-10.6].

n. Order for Involuntary Commitment for Inpatient Treatment to be Entered into

Criminal Justice Information System and NICS. When the judge of probate of a county enters
an order for the involuntary commitment of a person pursuant to Section 22-52-10.1, and the order
is for a final commitment for inpatient treatment to the Department of Mental Health or a Veterans’
Administration Hospital, or as otherwise provided by law, the judge shall immediately forward the
order to the Alabama Law Enforcement Agency (ALEA) in the manner provided by the Alabama
Justice Information Center (AJIC) Commission and the order shall be entered in the National
Instant Criminal Background Check System. The AJIC may allow a judge of probate access to its
system for involuntary commitment hearings, name-change petitions, and other official probate
functions. [§22-52-10.8(a)].

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When any individual who has been committed is released from commitment, the person
may petition the judge of probate for a review of the person’s mental capacity to purchase a
firearm. After review, the judge of probate may enter an order finding that the person is not subject
to a mental infirmity requiring a limitation on the purchase of a firearm. A copy of the order shall
be forwarded to the ALEA directing that the prior order be removed from the National Instant
Criminal Background Check System. [§§ 22-52-10.8(b), 22-52-10.9].

o. Retention of Jurisdiction. The probate court committing any person retains jurisdiction
over such person concurrently with the probate court of the county in which the person is
subsequently located for as long as the person is in custody of the department of mental health or
other public facility. [§ 22-52-11].

p. Appeals. An appeal from an order of the probate court committing a person lies to the
circuit court for trial de novo unless the judge of probate who granted the petition was learned in
the law, in which case the appeal lies to the Alabama Court of Civil Appeals on the record. Notice
of appeal must be given in writing within five days after the respondent has received actual notice
of the granting of the petition, at which point the judge of probate is to determine and enter an
order setting forth the limitations to be placed upon the liberty of the person sought to be committed
pending the appeal. [§ 22-52-15].

q. Transfer of Committed Persons to the Custody of the Veterans Administration. Any

person committed by the judge of probate to the custody of the Alabama State Department of
Mental Health and who is entitled to care or treatment offered by the United States Veterans
Administration or another U.S. government agency, may be transferred by the department of
mental health to the government agency on such terms as agreed upon by the department of mental
health and the government agency. [§ 22-52-13].

r. Fees and Costs. The fees of the attorneys appointed by the judge of probate as guardian
ad litem and as advocate for the petition are set at the rates established in Section 15-12-21; any
reasonable costs for the testimony of any expert and all other costs allowed by law are payable
from the general fund upon an order of the judge of probate. However, if the petition is denied,
and the petitioner is not an indigent or public official acting within the scope of his or her duty, the
petitioner may be ordered to pay all costs. Similarly, if the petition is granted and the person to be
committed is not an indigent, the judge of probate may order all costs paid from the estate of the
person committed. [§ 22-52-14].

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O. CHILDREN

a. Adoption. “In Alabama, the right of adoption is purely statutory and in derogation of
the common law, ... and unless the statute by express provision or necessary implication confers
the right of adoption, such right does not exist.” Evans v. Rosser, 280 Ala. 163, 164-65, 190
So.2d 716, 717 (1966)(citing Doby v. Carroll, 274 Ala. 273, 147 So.2d 803 (1962)). Furthermore,
“[w]e have always required strict adherence to the statutory requirements in adoption
proceedings.” McCoy v. McCoy, 549 So.2d 53, 57 (Ala. 1989)(citing Ex parte Sullivan, 407
So.2d 559 (Ala. 1981)).

The authority to receive petitions for adoption, to hold hearings, to examine parties
concerned, and to issue final orders is delegated to the probate court under general law. [§ 26-
10A-3].

1. Petition. A petition for adoption needs to be filed with the probate court clerk
within 30 days after the minor is placed with the prospective adoptive parent(s) for the
purpose of adoption, unless the minor is in custody of the Department of Human Resources
or a licensed child placing agency. However, a petition for good cause may be filed beyond
the 30 day period. The petition must be signed, verified by each petitioner, and allege:

(a) The full name, age and place of residence of each petitioner and if married,
the place and date of marriage;
(b) The date and place of birth of the adoptee (except in the case of
abandonment);
(c) The birth name of the adoptee and the adoptee's proposed new name;
(d) Where the adoptee is residing at the time of the filing of the petition, and if
not yet in the custody of a petitioner, when the petitioner intends to acquire
custody;
(e) That each petitioner desires to establish a parent and child relationship
between himself and the adoptee and that he is a fit and proper person able
to care for and provide for the adoptee's welfare;
(f) The existence and nature of any prior court orders known to the petitioner
which affect the custody, visitation or access to the adoptee;
(g) The relationship, if any, of each petitioner to the adoptee; and
(h) The names and addresses of all persons known to the petitioner at the time
of filing from whom consents or relinquishments to the adoption are
required.

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The petition shall be accompanied by a copy of the child's birth certificate. [§ 26-
10A-16]. Unless service has been previously waived, notice of pendency of the adoption
proceeding shall be served by the petitioner on:

(a) any person, agency, or institution whose consent or relinquishment is

required by Section 26-10A-7, unless consent has been implied.
(b) the legally appointed custodian or guardian of the adoptee.
(c) the spouse of any petitioner who has not joined in the petition.
(d) the spouse of the adoptee.
(e) the surviving parent or parents of a deceased parent of the adoptee.
(f) Any person known to the petitioners as having physical custody, excluding
licensed foster care or other private licensed agencies or having visitation
rights with the adoptee under an existing court order.
(g) the agency or individual authorized to investigate the adoption under
Section 26-10A-19.
(h) any other person designated by the court.
(i) the Department of Human Resources.
(j) the father and putative father of the adoptee if made known by the mother
or otherwise known by the court unless the court finds that the father has
given implied consent to the adoption, as defined in Section 26-10A-9.

[§ 26-10A-17].

2. Notice. The notice must specifically state that the person served must respond
to the petitioner within thirty (30) days if he or she intends to contest the adoption. [§ 26-
10A-19(b)]. Proof of service of the notice on all persons for whom notice is required must
be filed with the court before the adjudicational hearing, provided in Section 26-10A-24.
[§ 26-10A-17(e)].

3. Native Americans. Special provisions apply if the child to be adopted is of

native American ancestry. [Indian Child Welfare Act, 24 U.S.C. §§ 1901, etc.].

4. Interlocutory Decree. Once a petitioner has received the adoptee into his home
for the purpose of adoption and a petition has been filed, an interlocutory decree shall be
entered delegating the petitioner custody. However, if the child has been relinquished to
the Department of Human Resources or a licensed child placing agency, custody and

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responsibility for support and maintenance shall be retained by the Department of Human
Resources or licensed child placing agency. [§ 26-10A-18].

5. Investigation. A pre-placement investigation is required to determine the

suitability of each petitioner and the home in which the adoptee will be placed. A copy of
the pre-placement investigation shall be filed with the court when the petition for adoption
is filed.

An individual may initiate a pre-placement investigation by a direct request to the

Department of Human Resources or by filing a request with the probate court. The court
may appoint any agency or individual qualified under Section 26-10A-19(d) to perform the
investigation. Unless the investigation has been performed within 24 months of the petition
or an investigation is dispensed with by court order for good cause shown on the record,
no decree of adoption shall be entered until there is a full post-placement investigation.

The investigator shall complete and file his written report within 60 days from the
receipt of notice of the proceedings. The report shall include sufficient facts for the court
to determine whether there has been compliance with consent or relinquishment provisions
of the Adoption Code. [§ 26-10A-19]. However, the law provides that petitions from step-
fathers, step-mothers or closely related persons need not be investigated, unless otherwise
directed by the court. The adoptee must have also resided with the step-parent or a relative
for a period of one year before the filing of the adoption petition unless this provision is
waived by the court for good cause. [§§ 26-10A-27 and 26-10A-28].

6. Pending Custody Actions. The probate court may stay any adoption
proceedings if it is determined that there are any other pending custody actions concerning
the adoptee, either in this state or another. If granted, the stay will remain in effect until a
determination has been made by an appropriate court with jurisdiction pursuant to the
provisions of the Uniform Child Custody Jurisdiction Act or the Parental Kidnapping
Prevention Act. [§ 26-10A-21].

7. Consent. Consent to the petitioner's adoption or relinquishment for adoption to

the Department of Human Resources or a licensed child placing agency shall be required
of: 1) the adoptee, if the adoptee is 14 years of age or older lacks the mental capacity to
give consent; 2) the adoptee’s mother; 3) the adoptee’s presumed father, under certain
circumstances; 4) the agency to which the adoptee has been relinquished or which holds
permanent custody and which has placed the adoptee for adoption, unless the court finds
the adoption is in the best interest of the child and the agency unreasonably withheld

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consent; and 5) the putative father if he is made known by the mother or is otherwise known
to the court and he responds to the court within 30 days of being notified. [§ 26-10A-7].

The probate court may not grant an adoption of a child without a waiver of notice
or consent from a father listed on the child’s birth certificate, as Ala. Code § 26-10A-
7(a)(3)(d) gives a presumed father an unqualified right to object to the child’s adoption,
even absent his filing with the Putative Father Registry. [M.M. v. D.P., 10 So. 3d 605 (Ala.
Civ. App. 2008)].

8. Putative Father Registry, The Department of Human Resources maintains a

putative father registry that keeps the names, Social Security number, date of birth, and
addresses of 1) any person adjudicated by a court of this state to be the father of a child
born out of wedlock; 2) any person who has filed with the registry before or after the birth
of a child born out of wedlock, a notice of intent to claim paternity of the child; 3) any
person adjudicated by a court of another state or territory of the United States to be the
father of a child born out of wedlock, where a certified copy of the court order has been
filed with the registry by the person or any other person; and 4) any person who has filed
with the registry an instrument acknowledging paternity.

A person filing a notice of intent to claim paternity of a child or an acknowledgment

of paternity shall include: 1) The father's name, Social Security number, date of birth, and
current address; (2) the mother's name, including all other names known to the putative
father that have been used by the mother, Social Security number, date of birth, and
address, if known; (3) the father's current income and financial information by attaching a
child support obligation income statement/affidavit form to be prescribed by regulations of
the department; (4) the child's name and place of birth, if known; and (5) the possible date
or dates of sexual intercourse.

The clerk of the court which determines a man to be the father of a child born out
of wedlock shall immediately notify the Department of Human Resources of the
determination of paternity. The Department of Human Resources shall, upon request,
provide the names and addresses of persons listed with the registry to any court. [§ 26-10C-
1].

9. Dispositional Hearing. When the pre-placement investigation has been

completed, a dispositional hearing shall be held as soon as possible or no later than 90 days
after the filing of the petition. The dispositional hearing is the only one necessary to
complete the adoption if there is no motion for a contested hearing. [§ 26-10A-25]. In the

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event of a contested adoption, a guardian ad litem shall be appointed for the adoptee, or for
any incompetent or minor who is or would be a party to the proceeding. [§ 26-10A-22].
The probate court may not dismiss a petition for adoption prior to a dispositional hearing
due to the court’s own concerns that it lacks jurisdiction. [§ 26-10A-25; In re Adoption of
F.I.T., 43 So.3d 621 (Ala. Civ. App. 2010)].

10. Final Decree. A final decree of adoption will be granted if the probate court
finds based on clear and convincing evidence, that the best interests of the adoptee will be
served by the adoption and the other requirements delineated in Section 26-10A-25(b) have
been met. The written decree shall include the new name of the adoptee. The names of
the natural or presumed parents shall not be included in the final decree. [§ 26-10A-25].

Prior to the issuance of the final decree, the records in the adoption proceedings
shall be open to inspection only by the petitioner, his attorney, the investigator, and any
attorney appointed for or retained by the adoptee. All hearings in adoption proceedings
shall be confidential and held in closed court. Only interested parties are granted
admittance. After the final decree has been issued, all papers, pleadings and other
documents pertaining to the adoption shall be sealed, kept as a permanent record of the
court and withheld from inspection. No person shall have access to them nor identifying
information disclosed, except upon order of the court in which the decree of adoption was
entered or as provided in Section 22-9A-12 through the Office of Vital Statistics. [§ 26-
10A-31].

Within ten days of the final decree's issuance, the judge or clerk of the court must
send a copy of the final order to the Department of Human Resources. A certificate of the
final order must also be sent to the State Registrar of Vital Statistics. [§ 26-10A-32].
Appeals from a final decree of adoption must be filed with the Alabama Court of Civil
Appeals within 14 days of the date of the final decree. [C.M.K. v. E.D.K., 2010 WL
2070954 (Ala. Civ. App. 2010].

b. Foreign Adoption: Certificate of Foreign Birth Without Judicial Proceedings.

Beginning January 1, 2013, the State Registrar is authorized to issue a Certificate of Foreign Birth
without judicial proceedings if certain criteria are satisfied. [§ 22-9A-11.1].

c. Adult Adoption. In 1998 the Adoption Code was amended to allow for adoption of
adults who are mentally retarded or totally and permanently disabled. [Alabama Act 98-101]. In
2004, the Adoption Code was further amended to expand the adults who could be adopted to
include adoptions by relatives and stepparents and adults who consent to being adopted by a

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married couple. [Alabama Act 2004-528]. A stepparent cannot adopt an adult stepchild under Ala.
Code § 26-10A-6(2)(c) after the death of the spouse who was the stepchild’s parent, as the death
of the spouse extinguishes the stepparent-stepchild relationship for the purposes of this statute.
[Hays v. Hays, 946 So. 2d 867 (Ala. Civ. App. 2006)]. The forms for the consent or relinquishment
or the withdrawal of consent or relinquishment for an adult adoption were required to be developed
by the Administrative Office of Courts. [§ 26-10A-12]. Special rules relating to the consent for
an adult adoption are in Sections 26-10A-7 and 11.

d. Legitimation. A father seeking to legitimate a child is required to file a notice of

declaration of legitimation with the judge of probate of the county of either his or the child's
residence. Notice of the declaration of legitimation, consistent with Rule 4 of the Alabama Rules
of Civil Procedure, must be given both to the mother and to the child. In the event the mother
makes a timely objection to the prospective legitimation or to the extent the court feels such to be
in the best interest of the child, the probate court is to appoint a guardian ad litem to represent the
child. Upon either the response of the mother or the expiration of time for such response, the
probate court must conduct an informal hearing at which all interested parties may present
evidence concerning legitimation. Following such hearing the court must issue an order granting
or denying the declaration of legitimation. [§ 26-11-2]. A similar procedure is followed if a
petition is filed for a name change in conjunction with a petition for a declaration of legitimation.
[§ 26-11-3].

Alternatively, the paternity of an illegitimate child may be established after the death of the
father through adjudication resulting in judicial determinations of paternity. [Cotton v. Terry, 495
So.2d 1077 (Ala.1986)]. Section 43–8–48(2)b., rather than the 2008 AUPA, governs judicial
determinations of paternity for purposes of intestate succession. [Clemons v. Howard, 124 So.3d
738 (Ala. Ct. Civ. App. 2013)].

e. Change of Name. See Change of Name under Miscellaneous in Chapter IV, page 115.

P. EMINENT DOMAIN

a. Jurisdiction. Jurisdiction to condemn privately owned land rests in the probate court.
The judge receives petitions for condemnation, conducts the necessary proceedings, and issues the
final condemnation order. [§§ 18-1A-1 through 311]. In addition to condemnation for public uses,
this jurisdiction extends to the erection of dams for mills, gins or factories, [§§ 18-2-1 through 21],
and to rights-of-way for private owners. [§§ 18-3-1 through 22].

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The jurisdiction of the probate court and the procedure to be followed in condemnation
cases are explained in Title 18 of the Code of Alabama. Other important provisions are Sections
42-2-1 through 12, which explain condemnation action on land sought by the United States.

b. Authority. The exercise of eminent domain by the state requires that the taking of land
must be for public use and just compensation must be paid the landowner. [1901 Ala. Const. Art.
1, § 23]. The Alabama Constitution provides for the exercise of eminent domain by cities, counties
and other corporations and individuals vested with the right to take property for public use. [1901
Ala. Const. Art. XII, § 235].

The Legislature has placed some restrictions on the exercise of eminent domain authority
by any state agency or official. For example, property may not be condemned for any
nongovernmental retail, office, commercial, residential, or industrial use or development, but this
restriction does not apply to property considered to be a blight in an area covered by a
redevelopment or urban renewal plan. Nor does the limitation apply to the condemnation of
property for public utility purposes (i.e., gas, water, electricity) or for streets and roadways,
government buildings, or park and recreation facilities. [§ 18-1B-2]. In 2015, the Legislature
passed a law that prohibits a government entity from acquiring mortgages or deed of trust through
the exercise of its eminent domain power unless there is a public use for the property. [§§ 11-47-
170, 11-80-1, and 18-1B-2].

Additionally, if condemned property is not ever used for the purposes for which it was
condemned or for some other public purpose, and is to be sold, the property shall be first offered
for sale to the person or persons from whom the property was condemned, or his or her known or
ascertainable heirs or assigns, in the manner prescribed by law. [§ 18-1B-2].

c. Procedure Prior to Commencement of Condemnation Action.

1. Appraisal. Before beginning a condemnation action, a condemnor must have

the property appraised to determine the amount that would constitute just compensation for
the taking. The owner or the owner's representative must be given a reasonable opportunity
to accompany the appraiser during the inspection of the property. [§ 18-lA-21].

2. Offer. Before beginning a condemnation action, a condemnor must offer the

owner an amount believed to be just compensation. The condemnor shall provide the
owner with a written statement and summary showing the basis for the amount determined
to be just compensation. [§ 18-1A-22].

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3. Payment or Deposit Before Surrender of Possession. An owner is not required

to surrender possession of the property before the condemnor either pays the agreed
purchase price or pays or deposits the amount awarded. [§ 18-1A-23].

4. Notice. Except in an emergency, a condemnor may not require an occupant of

the condemned property to move prior to a 90-day notice of the move. [§ 18-1A-24].

5. Uneconomic Remnant. If the acquisition of part of the property would leave the
owner with an uneconomic remnant, the condemnor must offer to buy the remnant. [§ 18-
1A-27].

6. Entry. A condemnor and its agents may enter the property for a reasonable time
to make suitability studies. [§§ 18-1A-50 through 18-1A-54].

7. Offer as Prerequisite. The condemnor must offer to acquire the property at its
approved offer by purchase before commencing the condemnation action in court. [§ 18-
1A-55].

d. Commencement of Condemnation Action.

1. Filing a Complaint. A condemnation action is begun by filing a complaint in

the probate court in the county in which the property is located. [§ 18-1A-71].

2. Service of Process. When the complaint has been filed, the probate court must
set a date for the hearing and issue notice to the defendant unless notice has been waived.
[§ 18-lA-74]. The probate court shall conduct a hearing within 45 days (unless continued
when necessary to provide reasonable notice or for other compelling reason) after the
complaint is filed. The probate court must hear the allegations of the complaint, any
objections, and any legal evidence, and, within 10 days after the hearing, shall make an
order granting or refusing the complaint. [§ 18-1A-276].

3. Defendant's Response. The defendant may respond but is not required to do so

unless he or she challenges the right to condemn or disputes the area to be acquired or
remain. [§ 18-1A-90].

4. Withdrawal of Deposited Funds Before Judgment. The defendant by motion

may withdraw the amount of the offer prior to the entry of judgment. [§ 18-1A-110].

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e. Commissioners

1. Appointment of Commissioners. Within ten days after the complaint is granted,

the judge of probate must appoint three citizens of the county to serve as commissioners.
[§ 18-1A-279].

2. Commissioner's Hearing and Assessment of Damages. After notice to all

parties the commissioners must hold a hearing to receive evidence relating to
compensation. [§ 18-1A-281].

3. Commissioner's Report. Within 20 days from their appointment, the

commissioners must make a written report to the probate court stating the amount of
damages and compensation ascertained. [§ 18-1A-282].

Within seven days of receipt of the commissioner's report, the probate court must
issue an order recording the report and condemning the property upon payment or deposit
into probate court the damages and compensation assessed. [§ 18-1A-282].

4. Appeal to Circuit Court. Within 30 days of the order of condemnation, any

party may appeal to the circuit court for a trial de novo. [§ 18-1A-283, Boutwell v.
Alabama, 968 So. 2d 1015 (Ala. 2007)].

f. Measure of Damages

1. "Fair Market Value". The definition of "fair market value" is "as the price the
property would bring when offered for sale by a willing seller who is not forced to sell and
which is sought by a willing buyer who is not required to buy, after due consideration of
all the elements affecting value.” [§ 18-1A-172] [See also Messer v. United States, 157
F.2d 793 (5th Cir. 1946)].

2. Before and After Value. In a partial taking, the owner is entitled to the
difference between the fair market value of the entire property before the taking and the
fair market value of the remainder after the taking. [§ 18-1A-170].

3. Incidental Benefits. The amount of compensation a landowner may be entitled

to may not be reduced because of any incidental benefits which may accrue to the
remaining land. However, in condemnation of lands for rights-of-way for public highways,
water or sewer lines, the value of the enhancement to the remaining lands of the landowner

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may be considered as a set-off against damages. [§ 18-1A-171].

If the part of the tract of land remaining after the taking is worth as much or more
after the completion of the project as the entire tract was worth immediately before the
taking, the landowner has sustained no damage and is not entitled to any compensation.
[Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838 (1952)].

However, when the scope of an easement burdening a portion of a landowner's

property is so sweeping as to be the equivalent to the taking of a fee-simple title to the
property, the court must order that the owner of the property be compensated as if the entire
fee-simple to the property on which the easement lay had been taken. [City of Huntsville
v. Rowe, 889 So. 2d 553 (Ala. 2004) (stating that the city's taking of a portion of the
landowners' property for an underground sewer line was required to be compensated as if
an entire fee-simple title to the property on which the easement lay had been taken)].

4. Highest and Best Use. The condemnee is entitled to consideration for

condemnation on the basis of the highest and best use to which the property could be put.
[Sayers v. City of Mobile, 276 Ala. 589, 165 So. 2d 371 (1964)]. The highest and best use
of the property is a jury question, if demanded. [§ 18-1A-174].

5. Prejudgment Interest. Prejudgment interest on a condemnation award begins

to run on the date that a city posts an appeal bond and not on the date of the condemnation
application. [Samford University v. City of Homewood, 959 So. 2d 64 (Ala. 2006)].

Q. NOTARIES PUBLIC

The judge of probate shall report to the Secretary of State the name, county of residence,
date of issuance, and date of expiration of the commission of each notary public appointed and
commissioned. [§ 36-20-70]. It is unconstitutional to deny a commission as notary public to a
legal alien who has in all other respects complied with the statutory requirements pertaining to
office of notary public. [Babcooke v. Duncan, 486 So.2d 431 (Ala. 1986) citing Bernal v. Fainter,
467 U.S. 216, 104 S.Ct 3212, 81 L.Ed.2d 175 (1984)].

a. Bond. The notary public must give a bond to be approved by the judge of probate of
the county of the residence of the notary public for the sum of $25,000 dollars payable to the State
of Alabama. The bond must be executed, approved, filed and recorded in the office of the judge
of probate of the county of the notary public’s residence, before the notary enters his or her duties
of office. [§ 36-20-71(a)]. All existing notaries public functioning on January 1, 2012, shall

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continue to function pursuant to their existing bond for the remainder of their existing commission.
[§ 36-20-71(b)].

b. Seal and Office. Furthermore, each notary must provide a seal of office which must by
impression or stamp give the notary's name, office, state and county for which the notary has been
appointed. [§ 36-20-72]. The jurisdiction of notaries public shall not be limited to the counties of
their residence and extends to any county of the state. [§ 36-20-70]. Each notary holds office for
a period of 4 years which can be renewed. [§ 36-20-70]. The judge of probate shall collect a fee
of ten dollars ($10) for each notary commission issued. [§ 36-20-70].

c. Authority. Notary publics have the authority to:

(1) administer oaths in all matters incident to the exercise of their office;
(2) take acknowledgments or proof of instruments of writing relating to
commerce or navigation and certify the same and all other of their official
acts under their seal of office;
(3) demand acceptance and payment of bills of exchange, promissory notes and
all other writings which are governed by the commerce law as to the days
of grace, demand and notice of nonpayment and protest the same for
nonacceptance or nonpayment and to give notice thereof as required by law;
and
(4) exercise such other powers as, according to commercial usage of the laws
of this state, may be belong to a notary public.

[§ 36-20-73].

d. Fees. Notaries public are entitled to the sum of five dollars ($5) for carrying out any of
the enumerated powers in Section 36-20-73. [§ 36-20-74].

e. Exceeding Authority. Any person who, having been a notary, willfully performs or
assumes the authority to perform a notarial act after his or her commission expires, with knowledge
that his or her commission has expired or any person who without a notary's commission assumes
the authority and performs a notarial act shall be guilty of a Class C misdemeanor. [§ 36-20-75].

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R. RETIRED OR SUPERNUMERARY
JUDGES OF PROBATE

Every judge of probate who meets the requirements for retirement shall be entitled to
receive a pension as provided in Article 4 of Section 18 of Title 12 of the Code of Alabama.
Furthermore, every judge of probate who has retired pursuant to this article may, on the request of
the Chief Justice, be called to active duty status as a judge of probate. Retired judges of probate
who are called into active duty are entitled to certain compensation. [§§ 12-18-88, 12-18-90 and
§ 12-1-18].

Any judge of probate who qualifies to retire from active service with a benefit from the
judicial retirement fund is entitled to participate in the State Employees' Health Insurance Plan. [§
36-29-16].

Retired judges of probate are authorized by statute to solemnize marriages. [§ 30-1-7].

S. CANONS OF JUDICIAL ETHICS

The Alabama Canons of Judicial Ethics is a set of rules governing the behavior and
activities of judges. Because judges of probate are judicial officers, these rules do apply to judges
of probate. However, because judge of probate are charged with many administrative and
executive duties, the rules are slightly modified to govern judge’s of probate unique position. A
judge of probate should be familiar with all of the Canons of Judicial Ethics and pay special
attention to the section concerning judges of probate. Please review the Canons of Judicial Ethics
and Appendix B in the Handbook to determine which Canons apply to the judge of probate. All
of the Canons of Judicial Ethics and the Compliance with the Canons of Judicial Ethics are located
in the Rules of the Alabama Supreme Court currently in Volume 23B of the Code of Alabama.

T. MISCELLANEOUS

a. Appointment of Special Coroner. The judge of probate has authority to appoint a

special coroner under the following conditions:

(1) When the coroner has not qualified or the office is vacant and the emergency
requires such officer;
(2) When the coroner is absent from the county, having no deputy therein;
(3) When the coroner is imprisoned; or,
(4) When the sheriff and coroner are both parties or both interested. [§ 11-5-10]

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b. Awarding Attorney Fees. In appropriate cases, when it is provided for by law, statute
or contract, the judge of probate may award reasonable attorney fees to a prevailing party. The
determination of whether an attorney fee is reasonable is within the sound discretion of the trial
court and its determination on such an issue will not be disturbed on appeal unless in awarding the
fee the trial court exceeded that discretion. State Bd. of Educ. v. Waldrop, 840 So.2d 893, 896
(Ala. 2002); City of Birmingham v. Horn, 810 So.2d 667, 681-82 (Ala. 2001); Ex parte Edwards,
601 So. 2d 82, 85 (Ala. 1992), citing Varner v. Century Fin. Co., 738 F.2d 1143 (11th Cir. 1984).
Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552 (Ala. 2004). In determining the
reasonableness of an attorney fee, the court may consider:

(1) the nature and value of the subject matter of the employment;
(2) the learning, skill, and labor requisite to its proper discharge;
(3) the time consumed;
(4) the professional experience and reputation of the attorney;
(5) the weight of his responsibilities;
(6) the measure of success achieved;
(7) the reasonable expenses incurred;
(8) whether a fee is fixed or contingent;
(9) the nature and length of a professional relationship;
(10) the fee customarily charged in the locality for similar legal services;
(11) the likelihood that a particular employment may preclude other employment; and
(12) the time limitations imposed by the client or by the circumstances.

[Pharmacia Corp. v. McGowan, 915 So. 2d 549 (Ala. 2004)(quoting Van Schaack v. AmSouth
Bank, N.A., 530 So. 2d 740, 749 (Ala. 1988)]. These criteria are for purposes of evaluating whether
an attorney fee is reasonable; they are not an exhaustive list of specific criteria that must all be
met. Beal Bank v. Schilleci, 896 So. 2d 395, 403 (Ala. 2004), citing Graddick v. First Farmers &
Merchants Nat’l Bank of Troy, 453 So. 2d 1305, 1311 (Ala. 1984). Pharmacia Corp. v.
McGowan, 915 So. 2d 549, 553 (Ala. 2004).3

The Alabama Litigation Accountability Act governs the awarding of attorney fees in
limited circumstances involving frivolous actions. [§§ 12-19-270–276].

3
A trial court’s order regarding an attorney fee must allow for meaningful appellate review by
articulating the decisions made, the reasons supporting those decisions, and how it calculated the
attorney fee.” Horn, 810 So.2d at 682, citing American Civil Liberties Union of Georgia v. Barnes,
168 F.3d 423, 427 (11th Cir. 1999); see also Hensley, 461 U.S. at 437, 103 S.Ct. 1933.
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c. Burial Places. The judge of probate receives and takes action on petitions to locate and
extend boundaries of rural burial places. However, before such an application may be approved,
the judge must request the county board of health to investigate the request and to recommend
action to be taken. Due weight must be given to the conclusions expressed by the board of health
in the final decision on the application. [§ 22-20-4].
If the petition is approved, the judge of probate must appoint commissioners to survey,
map and plat the land and to fix the boundary. [§ 11-17-2]. He receives a report from the
commissioners and the payment of damages, if any, from the petitioners. [§§ 11-17-3 through 5].
The report and all proceedings are recorded in the probate office. [§ 11-17-5]. Appeals on the
amount of the damages assessed by the commissioners are heard by the judge in the same manner
in which contested wills are heard, including the requirements of trial by jury. [§§ 11-17-7 and
10]. Sections 11-17-1 through 17 and 22-20-4 explain the duties and responsibilities of judges of
probate in regard to burial places.

d. Change of Name. The probate court has authority to change the name of any person
residing in the county upon receipt of a declaration from the person whose name is to change. [§§
12-13-1,4 26-10A-25(c), and 26-11-3]. A probate court’s jurisdiction to change the legal name of
a child is limited to legitimation proceedings and does not extend to custody disputes. See Russell
v. Fuqua, 176 So. 3d 1224 (Ala. 2015).

e. Contested Elections. The judge of probate receives statements contesting the election
results of judges of the circuit court, and constables whose duties are limited to his county. When
such statements are received a trial of the contest must be held. The judge then determines the
correct election results and enters a corresponding judgment. Appeals in contested election cases
lie to the Alabama Supreme Court. [§§ 17-16-54, -58, -59].

f. Correction of Marriage Licenses. The judge of probate upon the receipt of a proper
petition and proof of error, has authority to correct marriage licenses, applications for marriage
licenses, and marriage certificates. See Section 30-1-16 for a more detailed explanation.

g. Declaration of Residence. In 2012, a procedure was established for a Notarized

Declaration of Residence. [§ 12-13-23]. The new law allows a person absent from the state for
military duty, eleemosynary journey, mission assignment, or other similar venture to designate

4
According to a November 19, 1980 opinion of the Attorney General’s office, the probate court’s
jurisdiction over name changes extends to petitions to change the name of a minor. [Ala. Op. Att'y
Gen. No. 81-00073 (Nov. 18, 1980)].
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their residency by filing with judge of probate a Notarized Declaration of Residence. [§ 12-13-
23(b)]. However, there are some limitations of the effectiveness of the Declaration. For example,
this section does not affect the person right to register to vote or qualify for elected office. [§ 12-
13-23(d)]. Likewise, this Declaration does not satisfy the requirements for certain enumerated
benefits. [§ 12-13-23(g) and (i)].

h. Discretion to Authorize an Agent with the Right of Disposition of a Deceased Person.

The judge of probate of the county of a decedent’s residence may award the right of disposition to
the person the judge determines to be the most fit and appropriate to manage the right of disposition
and make decisions regarding the remains of the decedent if the persons possessing the right of
disposition do not agree. [§ 34-13-11].

If two or more persons who possess an equal right of disposition are not able by majority
vote to agree upon the disposition of the remains of the decedent, any of those persons or the
funeral establishment with the custody of the remains may file a petition asking the judge of
probate to make a determination in the matter. In making such a determination, the judge of
probate shall consider all of the following:

(1) The reasonableness and practicality of the proposed funeral and disposition
arrangements.
(2) The degree of the personal relationship between the decedent and each person
possessing a right of disposition.
(3) The financial ability and willingness of each person possessing a right of
disposition to pay the cost of the funeral and disposition arrangements.
(4) The convenience and needs of other family members and friends who wish to pay
their respects and the degree to which the funeral arrangements would allow
maximum participation by all who wish to pay their respects.
(5) The desires of the decedent.

[§ 34-13-11(c)].

NOTE: Section 34-13-11(a) lists the priority in which the right to control the disposition of a
deceased person shall vest. Section 34-13-11(c) states when the right of disposition shall be
forfeited and passed to the next qualifying person.

i. Drainage Districts. The probate court has "jurisdiction, power and authority" to
establish, alter, and dissolve drainage or water management districts; to locate and establish levees,
drains or canals; to cause any ditch, drain or water course to be constructed or altered; to construct

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levees or embankments and outlets; and to erect flood gates and pumping stations for reclaiming
wet, swamp, or overflow lands. [§§ 9-9-5, 50, and 57]. This authority may be exercised upon the
receipt of a proper petition. [§§ 9-9-7, 50, and 57]. When such petition is received, the court in
which it is filed has original and exclusive jurisdiction co-extensive with the boundaries and limits
of the district without regard to county lines. [§ 9-9-8]. A record of all reports, surveys, and
proceedings by the court is required for each district. [§ 9-9-6]. The duties and responsibilities of
the judge of probate in the establishment and administration of drainage districts, together with
procedures to be followed are explained in Title 9, chapter 9.

j. Filing of Bond. Generally, public official’s bond must be filed within 40 days after
declaration of election or after appointment to office. [§ 36-5-2]. No officer, with whom any
official bond is required to be filed, shall allow the same to be filed in his office, unless the approval
of the proper officer appears thereon, endorsed in accordance with the Code. [§ 36-5-8]. Every
officer, in whose office the official bond of any public officer is filed, must endorse on such bond
the day and year when the same was filed and sign his name to such endorsement. [§ 36-5-9].
Any officer who fails to endorse the date of the filing of an official bond as required by law must,
on conviction, be fined not less than $50.00. [§ 36-5-10].

If any officer required by law to give a bond fails to do so timely, then he vacates his office.
In such case, it is the duty of the officer in whose office such bond is required to be filed at once
to certify such failure to the appointing power, and the vacancy must be filled as in other cases. [§
36-5-15]. If any public officer required by law to give a bond fails to do so timely, notice of such
failure must be given by the officer in whose office such bond is required to be filed in two days
to the district attorney of the circuit to which such county belongs. [§ 36-5-16]. Any officer who
omits to give notice of failure by a public officer to file his official bond as required by law must,
on conviction, be filed not less than $100. [§ 36-5-17].

k. Filing of False Liens. In 2012 the Legislature amended the code and created the crime
of offering a false instrument for recording against a public servant which is now a Class C felony.
[§ 13A-9-12].

The Act also provides that a person or entity whose rights are affected by the filing of a
false lien or other instrument may petition the judge of probate to nullify or expunge the filing. [§
13A-9-12 (e)]. Within 14 days of the filing of the petition, the judge of probate shall give written
notice of the filing of the petition to the person or entity who filed the lien or instrument or who
claims the rights or interests thereby. The notice must state that any additional proof of the validity
of the lien or instrument shall be filed with the judge of probate within 14 days of the date of

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mailing the notice and that the failure to do so could result in the lien or instrument being nullified
or expunged. [§ 13A-9-12 (e)].

If the petition is not granted within 28 days of the date that it is filed, the petition shall be
deemed denied. An order granting or denying a petition, if rendered, shall be delivered to the
parties by the judge of probate by certified first class mail, but shall not be enforced, acted upon
or effective before the expiration of 28 days from the date of mailing or the final adjudication of
any and all appeals of that decision, at which time any final order granting the petition shall be
recorded and indexed in order to provide notice that the lien or instrument has been nullified or
expunged. [§ 13A-9-12 (e)].

If appealed, a notice of the appeal shall also be filed with the judge of probate, who shall
file the notice as a lis pendens filing. [§ 13A-9-12 (e)].

l. Mandatory Continuing Judicial Education. The Alabama Supreme Court entered an

Order effective January 1, 2011 requiring all judges of probate to comply with annual mandatory
judicial education as outlined in Section VII of the Rules for Mandatory Continuing Judicial
Education. All judges of probate are required to earn a minimum of 12 approved judicial
education credits each calendar year. The program is administered by the Alabama Law Institute.

By Resolution of the Alabama Probate Judges’ Association, the requirements for

mandatory judicial education were extended to the chief clerks. The Rules for Mandatory
Continuing Judicial Education for Probate Court Chief Clerks became effective on January 1,
2012. All chief clerks are required to earn a minimum of 12 approved judicial education credits
each calendar year. The program is administered by the Alabama Law Institute.

m. Mine Surveys. Authority is delegated to the probate court to receive applications made
by adjacent land owners and lessees for permission to enter and survey mine operations in order
to ensure that the mine operators are not encroaching on their property. Upon receipt of an
application, the judge must conduct hearings to determine the merits of the request. When the
application is considered to be justified, the judge must make an order requiring the Department
of Industrial Relations to employ an engineer to survey the mine. A report of the survey must be
filed in the judge of probate's office. [§ 25-9-321].

n. Municipalities. The judge of probate receives petitions, holds hearings, and conducts
elections and other proceedings for the establishment and dissolution of municipal corporations,
and for the reinstatement of dormant municipal corporations. [§§ 11-41-1 through 4, 7, and 21
through 23]. He receives petitions and conducts hearings and proceedings for the institution of a

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commission form of government in municipalities. [§§ 11-44-2 and 6]. The judge also issues
court orders confirming election results on the question of merger, annexation, and change of
municipal limits. [§§ 11-42-2, 3, 42 through 44, 51, 127, 151, and 154]. Hearings are conducted
by the judge of probate on proposals to reduce municipal limits and, if objections are presented,
an order of election on the question must be made. When an objection to the reduction is not
presented, the judge may enter an order establishing the municipal limits as proposed by the
municipal governing body. [§§ 11-42-20 through 205]. The order to be entered and records to be
kept in these proceedings and elections vary from case to case and are explained in the Code titles
mentioned above.

o. Public Improvement Authorities. The judge of probate receives petitions for

establishing improvement authorities and has summary jurisdiction upon the complaint of an
elector to determine the sufficiency of the petition. After hearing complaints on the petition, an
order is issued based upon the evidence received. Summary proceedings must be initiated within
ten days after the petition is filed.

If the petition is received and complaints disposed of not less than thirty days nor more
than sixty days prior to a general city or town election, the question must be proposed at the general
election. Otherwise, a special election must be held. Notice of the election must be given by
publication in a newspaper with general circulation in the territory at least once on the same day
of each week for three consecutive weeks. [§§ 39-7-4 through 8].

p. Refund of Taxes. The judge of probate also receives petitions claiming that excess ad
valorem taxes were paid by mistake or error. The judge receives these petitions, examines the
evidence presented, and decides on the merits of the claim. If the allegation is correct, a refund
may be ordered for the petitioner. See §§ 40-10-160 through 166 for more details.

q. Rites of Marriage. The judge of probate has the authority to solemnize marriages when
the parties possess a valid marriage license. [§§ 30-1-7 and 9].

r. Sale of Land for Delinquent Taxes. The probate court is empowered to order the sale
of land for the payment of delinquent county and state ad valorem taxes, and of municipal taxes
due as a result of local improvement assessments. [§ 40-10-1]. Action is initiated upon the receipt
of a report from the tax collector stating an inability to collect the taxes assessed against the
property. [§ 40-10-1]. Upon receipt of this report, the judge issues a notice of delinquency and
proposed sale to the delinquent taxpayer. [§ 40-10-4]. If the address of the delinquent taxpayer is
not known notice must be published once a week for three consecutive weeks in a newspaper
published in the county. If no newspaper is published in the county, notice must be posted at the

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courthouse for three consecutive weeks. [§ 40-10-5]. At the hearing, if there is no contest of the
allegation, the judge issues a decree for the sale of land. [§ 40-10-8]. If there is a contest, the
judge hears the evidence and decides if it is sufficient to prevent a sale. If the evidence is not
sufficient, the judge must order the sale to be conducted. [§ 40-10-11]. The sale must be advertised
at least thirty days before its commencement. [§ 40-10-12]. Appeals from the decrees for the sale
of land go to the circuit court. [§ 40-10-25].

The judge of probate must attend these sales and keep a record describing the parcel of
land sold, to whom the land was sold, price paid, and the date of the sale. When there is no sale,
the reason must be stated in the record. The record of sales must also include the type of tax
penalties and the amount of the fees and costs of each case. [§ 40-10-15]. If no bid offered at the
sale is sufficient to pay the sum specified in the decree of sale, the judge of probate must bid that
sum for the state. [§ 40-10-18]. After such sales have been completed, they must be confirmed
by the court within five days of the tax collector's report of the sale unless an objection with merit
is filed. [§ 40-10-13]. Redemption proceedings initiated within three years from the date of sale,
or the issuance of deeds to purchasers when redemption proceedings have not been initiated within
this period are also handled by the judge of probate. [§§ 40-10-29 and 121].

For those municipalities which elect to permit the county tax collector to collect municipal
taxes, the judge of probate has the same authority and responsibility in tax sales and redemption
proceedings which he has for county and state taxes. [§§ 11-48-56, 57, 59; 11-51-61, 64, 70, and
71].

For a more in-depth discussion of delinquent tax sales, tax deeds and duties of the Land
Commissioner, see Handbook for Alabama Tax Administrators, Seventh Edition, published by the
Alabama Law Institute.

s. Redemption of Land Sold for Taxes. Article 5 of Chapter 10 of Title 40 covers the
redemption of land that has been sold for taxes. The right of redemption is established in Section
40-10-120 which is as follows:

“Real estate which hereafter may be sold for taxes and purchased by the state may be
redeemed at any time before the title passes out of the state or, if purchased by any other purchaser,
may be redeemed at any time within three years from the date of the sale by the owner, his or her
heirs, or personal representatives, or by any mortgagee or purchaser of such lands, or any part
thereof, or by any person having an interest therein, or in any part thereof, legal or equitable, in
severalty or as tenant in common, including a judgment creditor or other creditor having a lien
thereon, or on any part thereof; and an infant or insane person entitled to redeem at any time before

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the expiration of three years from the sale may redeem at any time within one year after the removal
of the disability; and such redemption may be of any part of the lands so sold, which includes the
whole of the interest of the redemptioner. If the mortgage or other instrument creating a lien under
which a party seeks to redeem is duly recorded at the time of the tax sale, the party shall, in addition
to the time herein specified, have the right to redeem the real estate sold, or any portion thereof
covered by his or her mortgage or lien, at any time within one year from the date of written notice
from the purchaser of his or her purchase of the lands at tax sale served upon such party, and notice
served upon either the original mortgagees or lienholders or their transferee of record, or their
heirs, personal representatives, or assigns shall be sufficient notice.” [§ 40-10-120].

The process for the redemption of land sold to the state, including the amount to be
deposited with the probate court, is set out in Section 40-10-121. The process for the redemption
of land sold to a party other than the state, including the amount to be deposited with the probate
court, is set out in Section 40-10-122. Both of these Sections provide that a party seeking to redeem
property sold for unpaid taxes must pay a twelve percent5 interest rate on the taxes due at the time
of default. Upon payment as required by law, the judge of probate shall issue a certificate of
redemption. [§ 40-10-127]. Payment includes the amount to be deposited directly with the probate
court to cover the tax-sale price, interest, and unpaid taxes under § 40-10-122(a), as well as any
insurance premiums and improvement costs owed under § 40-10-122(c). [Wall to Wall Props. v.
Cadence Bank, N.A., 163 So. 3d 384 (Ala. Ct. Civ. App. 2014)].

A party aggrieved by the erroneous issuance of a certificate of redemption may petition a

circuit court in the county in which the probate court lies for a writ of mandamus to compel the
vacating of the certificate. [§ 6-6-640; Wall to Wall Props. v. Cadence Bank, N.A., 163 So. 3d 384
(Ala. Ct. Civ. App. 2014)]. A petition for a writ of mandamus filed in a circuit court under § 6-6-
640 must be filed without unreasonable delay. Any more specific deadline for filing a petition for
a writ of mandamus found in Rule 21, Ala. R. App. P., applies only in the three designated appellate
courts in this state and not in the circuit court. See Rule 1, Ala. R. App. P.

Distinct lots or parcels of land may be redeemed without redeeming the entire property.
Any owner desiring to redeem any one or more parcels of land must also pay all tax on personal
property assessed against him in said assessment, together with all costs of court and advertising
fees. [§§ 40-10-123–126].

Within five days from the redemption of any real estate bid in by the state, the judge of
probate shall notify the tax assessor and tax collector of his county and shall, on demand, pay to

5
This rate will decrease to eight percent on January 1, 2020.
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them the costs and fees to which they are respectively entitled. [§ 40-10-130]; [§§ 9-9-5, 50, and
57].
t. Social Security Number and Birthdate Redaction. Before recording any document that
conveys any interest in real or personal property (deeds, mortgages, etc.) or purports to encumber
an interest in real or personal property (e.g., liens), (except federal and state tax liens) as public
record with the probate court Social Security numbers and birthdates must be redacted, to make
that information illegible. [§ 12-13-22]. Any other document, including military discharge forms,
that is filed as public record in the probate court should be redacted in the same manner. [§ 12-
13-22]. The person submitting the document should redact, remove or otherwise make illegible
the social security number, otherwise the judge of probate can do so under the authority given
under subsection (c) of Section 12-13-22.

Additional limitations are placed on the use of social security numbers on documents
available for public inspections in Section 41-13-6. Moreover, Section 4-13-7 places limitation
on identifying information of state employees on records available for public inspection including
social security numbers.

In contrast, there are some statutes that require the inclusion of the social security number
on some documents such as marriage licenses. [§ 30-3-194].

u. Taxpayer About to Jeopardize Possibility of Tax Collection. When the tax collector
has good reason to believe that any person owing taxes is about to leave or remove his property
from the county, or that such person is closing out or going out of business or disposing of
substantially all of his personal property and thereby the collection of such taxes is endangered it
is the tax collector’s duty to make out and certify to the judge of probate a bill against such person
for the amount of such taxes and any fees due the assessor or collector. (Advertisements in
newspapers or otherwise of sales of any personal property as a closing out sale, fire sale, bankrupt
sale, or any sale of like character shall be prima facie evidence that the collection of taxes due on
property so advertised is endangered within the meaning of this section.)

Upon the approval thereof by the judge of probate in writing endorsed thereon, such bill
shall operate as a writ of fieri facias (writ of execution) which the collector is authorized to execute
by levy and sale, in the same manner as sheriffs are authorized to execute such writs when issued
out of the circuit court. Said writ may be executed in any county of the state where property of
the taxpayer is found. [§ 40-5-31].

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 V.

THE FUNCTIONS OF THE PROBATE

JUDGE AS CHAIRMAN OF THE
COUNTY GOVERNING BODY
A. GENERALLY

One of the most distinctive features of county government in Alabama is the great diversity
marking the composition of functioning of the county commissions. In particular, the number of
members on each commission and the role of the judge of probate in the body vary from county
to county.

The number of members on the county commission varies from three to eight, with five
members being the most common number. While the general law provides that the judge of
probate shall be a member of the county commission, over a period of years a majority number of
judges have been removed from the county commission and no longer serve as chairman of these
bodies.

Even in the counties where the judge of probate is the chairman of the county commission,
his duties and responsibilities in that position vary considerably from county to county. Some
duties are assigned by state statutes, while others may be delegated, formally or informally, by the
county commission. Such delegation makes a complete and accurate discussion of these duties
and responsibilities difficult.

The number and kind of duties which are delegated to a particular judge of probate vary
from county to county. Consequently, in one county the judge will be expected to carry the major
burden of county operations, while in others the commissioners will assume the greater part of the
workload.

a. Administrative Tasks. Unless otherwise provided by local law or court order, the
judge of probate shall serve as the chairperson of the county commission. [§ 11-3-1]. As
chairman of the county commission, the judge of probate is assigned several administrative tasks
-- by state law and by delegations by the commission. When acting in this capacity, the judge of
probate has basically the same powers as chairperson but does not vote except in the event of a tie.
[§ 11-3-20]. The judge is responsible for recording the proceedings of the commission. [§ 11-
3-20]. The judge of probate is also assigned the responsibility for the maintenance of county
fiscal records by general law and is responsible for ensuring that these records are current and
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accurate. This duty includes supervising the accounts, auditing claims against the county, and
issuing warrants. The performance of most of these duties may be delegated to subordinate
personnel in the office. However, the judge must personally review each claim against the county,
determining the factual and legal sufficiency of the claim. [§§ 11-8-9, 11-12-10 through 11-12-
12]. The duties of the judge of probate and county commission in relation to the fiscal records
and claims against the county are explained in Sections 11-8-1 through 6, Sections 11-8-9 through
12, and Sections 11-8-15 through 17. Other administrative duties include the preparation of a
tentative budget, purchasing for the county, and the preparation of the agenda for the commission.

b. County Board of Health. In addition to those duties delegated to the judge of probate
by the commission, in those counties in which the judge of probate is chairman of the county
commission he is ex officio a member of the County Board of Health. [§ 22-3-1]. The duties and
responsibilities of this board are explained in Section 22-3-2.

c. Keeping Other Members of the Commission Informed on Matters. The judge of

probate is ordinarily expected by the members of the county commission to keep them informed
on matters affecting the commission's activities. This is particularly true in counties which do not
have full-time commissioners. Included in the matters normally brought to their attention are new
opinions by the attorney general, recent court decisions, and new statutes affecting the jurisdiction
and authority of the governing body. Citations of existing laws applicable to questions pending
before the commission may also be requested.

In most of the counties in which the judge of probate is chairman of the county commission,
the commissioners are part-time officials who are often more directly concerned with roads,
bridges, and highways than some of the other functions of the governing body. Therefore, the
judge of probate is expected to bring to the attention of the commissioners the duties and
responsibilities of the county commission in relation to other county functions. For example, the
judge of probate usually notifies the commissioners of certain official and board members who
must be appointed by the commission. The judge is generally responsible for the codification and
publication of local acts applicable to the county, and for an explanation of the fiscal
responsibilities of the governing body.

d. Preparation of Budgets. Section 11-8-3 sets out the requirements and procedures for
establishing the county general fund budget. Generally speaking, the judge of probate, as
chairman of the county commission, is expected to prepare or compile the tentative budget or to
supervise its preparation for submission to the county commission. All county officials must
submit a tentative budget, and in counties in which budget practices are not elaborate, all agency
budgets are simply compiled and submitted to the county governing body. Please see the

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Handbook for Alabama County Commissioners, 11th Ed. for a comprehensive review of the laws
concerning purchases and competitive bid laws.

e. Responsibility for Other Executive Acts. It is not uncommon for other executive acts
of the commission to be delegated to the judge. Among these are: making contacts with state
agencies; publishing of receipts and expenditures; arranging contracts in cooperation with the
county attorney; and procuring forms of books which the commission is required to provide for
other county officials.

f. Summary. This enumeration does not cover all of the ex officio duties of the judge of
probate as chairman of the county commission. Many other duties have undoubtedly been
assigned by the county governing body itself. Local acts may also impact on the duties of the
judge of probate in his or her role as the chair of the county commission. For more information
concerning Alabama county commissioners see Handbook for Alabama County Commissioners,
11th ed., published by the Alabama Law Institute.

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Handbook for Probate Judges

126
 Appendix

APPENDIX A

Under Section 10A-1-4.31, the judge of probate or the Secretary of State, as the case may
be, shall collect the following fees when the filing instruments described in this title are delivered
to him or her for filing:

Filing Instrument Fee for Fee for

State of Probate
Alabama Judge

(1) Certificate of formation and restated $100 $50

certificate of formation
(2) Amendment to certificate of $50 $25
formation
(3) Name reservations
A. Less than 24 hours $25 No fee
B. 24 hours or more $10 No Fee
(4) Certificate of dissolution (other than $100 $50
a statement of dissolution or
cancellation under Chapter 8A)
(5) Certificate, articles, or statement of $100 $50
merger; statement of conversion,
articles of consolidation or share
exchange
(6) Foreign entity registration including $150 No fee
a statement of foreign limited liability
partnership
(7) Certificate of existence
A. Less than 24 hours $25 No fee
B. 24 hours or more $10 No fee
(8) Statements and any document $100 No fee
required or permitted to be filed with
the Secretary of State under Chapter 8A

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(9) Certified statements and any $100

document required or permitted to be
filed with the judge of probate under
Chapter 8A
(10) Any other filing instrument $25 $25
required or permitted to be filed under
this title

When appropriate, two checks shall accompany a filing instrument delivered to the judge
of probate or the Secretary of State for filing, one payable to the judge of probate for all charges
for the judge of probate, and one payable to the State of Alabama covering all charges for the
Secretary of State. In the case of any filing instrument delivered for filing to the judge of probate
accompanied by a check for the charges for the Secretary of State, the check for the Secretary of
State shall be forwarded by the judge of probate to the Secretary of State. In the case of any filing
instrument delivered for filing to the Secretary of State accompanied by a check for the judge of
probate, the check for the judge of probate shall be forwarded by the Secretary of State to the judge
of probate

The judge of probate shall collect the following fees for copying and certifying the copy of
any filing instrument relating to an entity:

(1) Two dollars ($2) a page for copying; and

(2) Ten dollars ($10) for the certificate.

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 Appendix

APPENDIX B

CANONS OF JUDICIAL ETHICS

Compliance with the Canons of Judicial Ethics

C. Probate Judge. Probate judges in Alabama are charged with many administrative
and executive duties not judicial in nature. However, when a probate judge performs judicial
duties then applicable canons should be followed. A probate judge is not expected to comply with
the following:

5B(2), 5E and G, 6C, and 7.

In lieu of the provisions of 3A(5), the following shall be applicable to probate judges:

A probate judge should dispose promptly of the business of the court, being ever mindful
of matters taken under submission.

In lieu of the provisions of 3B, the following shall be applicable to probate judges:

It is desirable that a probate judge should diligently discharge his administrative

responsibilities, facilitate the performance of the administrative responsibilities of other judges and
court officials, require his staff and court officials subject to his direction and control to observe
the standards of fidelity and diligence that apply to him, initiate appropriate disciplinary measures
against a judge or lawyer for unprofessional conduct of which the probate judge has personal
knowledge, and not approve compensation for appointees beyond the fair value of services
rendered.

A probate judge should consider himself the conservator of all estates under his
jurisdiction.

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130
 Glossary of Terms

GLOSSARY OF TERMS

Note: The terms in this glossary are generally descriptive of their use in probate court.
Please see the appropriate statutes in the Alabama Code for a more precise meaning of these
terms.

AAdvancement@ - money or property given by a parent to his child or, sometimes, presumptive
heir, or expended by the former for the latter=s benefit, by way of anticipation of the share which
the child will inherit in the parent=s estate and intended to be deducted therefrom. It is the latter
circumstance which differentiates in advancement from a gift or a loan.

"Ala. Code" - stands for the Code of Alabama, the 'official' name of the laws of our state.

"Alabama Law Institute" - an organization created by act of the Legislature in 1967 and became
the Law Revision Division of the Legislative Services Agency in 2017. The purpose of the
Institute is to clarify and simplify the laws of Alabama, to revise laws that are out-of-date and to
fill in gaps in the law where there exists legal confusion. For more information about the Institute,
please visit http://www.lsa.state.al.us/ali/ali.aspx.

"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.

"Bond" - is a financial security provided to the court by the personal representative and/or a
bonding company to ensure that the personal representative of the estate faithfully does the job of
the personal representative.

"Claim" - is a claim against the estate of the decedent, including those for debts of the decedent
that arise before or after the death of the decedent.

"Claimant" - is the person or entity making a claim against the decedent's estate.

"Codicil" - is an amendment to a will.

"Creditor" - is a person or entity to whom a debt is owed by the decedent.

"Decedent" - is the person who has died and whose will is being probated or whose estate is being
administered.

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Handbook for Probate Judges

"Deed" - is a document that conveys title to real property from one owner to another.

"Descendant" - is the child, grandchild, great-grandchild, etc. of a decedent.

"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.

"Devisee" - any person in a will to receive a devise.

"Distributee" - any person who is entitled to receive property of a decedent from the decedent's
estate.

"Domicile" - is a person's usual and permanent place of abode. Evidence of domicile includes
registering to vote, using the address as a permanent place, etc. It is the place a person intends to
return to, even when currently residing elsewhere. Domicile is important when determining the
venue of the case.

"Estate" - includes the property of the decedent whose affairs are subject to the probate court's
jurisdiction.

"Ex-Parte Communication" - is a prohibited communication between the court and one party
without the consent of, or notice to, another party who would be adversely affected by the
communication.

"Executor" - is a person appointed by a testator to carry out the directions and request in the
testator's will and to dispose of the property according to the testator's wishes after the testator's
death. In Alabama an executor is called a Personal Representative.

"Fiduciary" - is a person or entity, who acts primarily for another's benefit in matters connected
with that duty. A fiduciary is held to the highest degree of good faith in performing his or her
duties. A personal representative is a fiduciary.

"Filing Fee" - the fee required for filing a case with the probate court.

"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 a guardian ad litem.

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 Glossary of Terms

"Guardian ad Litem" - an attorney appointed to represent, prosecute or defend an action on

behalf of a party incapacitated.

"Heirs" - those persons, including the surviving spouse, who are entitled under the statutes of
intestate succession to inherit the property of a decedent.

"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. AInterested person@ also includes persons having priority for
appointment as personal representative, and other fiduciaries representing interested persons. The
meaning of Ainterested 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.

"Intestate" - means having died without a valid will.

"Issue" - is all descendants, of all generations, of a deceased person.

"Jurisdiction" - is the authority for a court to act on a matter. Probate courts are of "limited
jurisdiction," and only have the authority to act over certain proceedings.

"Minor" - a person who is under 19 years of age.

"Nonresident Decedent" - a decedent who was domiciled in another jurisdiction at the time of
his death.

"Notarization" - is the attestation by a Notary Public that a document was signed under oath and
that the person whose signature appears on the document is that person. Notaries in the State of
Alabama are appointed and commissioned by the probate judges of the various counties. See
Sections 36-20-70 through 75 for further information on notarial acts. Certain documents filed in
a probate case must be notarized before being accepted by the court for filing.

"Notice" - or "giving notice" is a written "announcement" to persons entitled to know what has
transpired or will transpire in a case.

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Handbook for Probate Judges

"Organization" - 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.

"Parent" - under estate law Aparent@ includes any person entitled to take, or who would be entitled
to take if the child died without a will, as a parent under Chapter 8 of Title 43 by intestate
succession from the child whose relationship is in question and excludes any person who is only a
stepparent, foster parent, or grandparent.

"Person" - an individual, a corporation, an organization, or other legal entity.

"Personal Property" - is all the property that is not land, real estate or real property. Some
examples are bank accounts, stocks, bonds, insurance policies, pension plans, jewelry, furniture
and motor vehicles.

"Personal Representative" - is a person who administers the estate of the decedent by giving
notice of his/her appointment, paying claims of the estate and then distributing the estate according
to the will. This term includes executor, administrator, successor personal representative, special
administrator, and persons who perform substantially the same function under the law governing
their status.

"Petition" - is a written document filed with the probate court asking the court to exercise the
court's authority in a legal matter.

"Petitioner" - is the person who presents a petition to the probate court to begin a legal action.
For example, a person petitions to be appointed a personal representative.

"Pleading" - is a legal document filed with the court. Pleadings and papers filed in the court
include a caption or heading that identifies the state, county, and name of the court; the names of
the parties; and a title describing the type of paperwork being submitted.

"Power of Attorney" - is a signed document that authorizes another person on someone's behalf.
A power of attorney terminates upon the incompetency of the person who granted the power of
attorney unless it is a durable power of attorney.

"Pro se" - is the Latin phrase for acting without an attorney.

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 Glossary of Terms

"Probate" - technically is the court procedure by which a will is proved to be valid or invalid.
Common usage of this term now means all matters relating to the administration of an estate,
including estates with wills and intestate estates.

"Real Property" - includes land, houses, farms, leases, oil, gas, mineral, water and timber rights.

"Revoked or Revocation" - when used in the context of wills and administration, refers to a will
or other document that the decedent has canceled. If a will is revoked, it has no effect.

"Seal" - means a notary seal or stamp, seal of the court, etc., which proves the authenticity of a
document.

"Statute of Limitation" - is a law that sets a time limit for starting a case.

"Testator" - is someone making, or who has made, a will, or someone who dies leaving a valid
will.

"Trust" - is an entity set up during a person's lifetime through a written trust agreement. Trust
assets are held for the beneficiary by another person, the trustee.

"Unrevoked" - when used in the context of wills and administration, refers to a will or other
document that has not been invalidated or canceled.

AVenue" - is the place where the case should be filed.

"Will" - is a document that provides for the distribution of the assets of a person's estate upon
death. A will also typically designates a personal representative and can appoint a guardian for
minor children. Certain formalities must be followed when executing the will in order for the will
to be considered valid.

"Witnesses" - when used in the context of wills and administrations, refers to persons attesting to
having watch a testator sign his/her will.

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136
 INDEX
Page

ACTS
Types of ...........................................................................................................................................8

ADMINISTRATION OF ESTATES
Advancements ................................................................................................................................81
Appraisals and Setting Apart of Exemptions .................................................................................71
Bank Accounts of Deceased Depositors ........................................................................................80
Citation to Report Sale of Land .....................................................................................................78
Compelled Settlement ....................................................................................................................75
Confirmation of Sale ......................................................................................................................78
County or General Administrators .................................................................................................67
Dead, Persons Presumed ................................................................................................................67
Discretion to Authorize an Agent With the Right of Disposition of a Deceased Person ............116
Exempt Property and Allowances ..................................................................................................70
Exemptions from Attachments, Executions and Garnishments .....................................................81
Granting Letters of Administration ................................................................................................65
Granting Letters to Several Kindred Persons.................................................................................66
Homestead Exemption ...................................................................................................................70
Intestate Estates ........................................................................................................................ 65-67
Inventory of Estate .........................................................................................................................71
Jurisdiction of Probate Court .........................................................................................................64
Letters Testamentary......................................................................................................................63
Non-Resident Administrators ........................................................................................................67
Notice of Appointment ..................................................................................................................68
Of Persons Presumed Dead ............................................................................................................67
Order and Time ..............................................................................................................................66
Partition of Property.......................................................................................................................81
Presumption of Settlement .............................................................................................................76
Priority Among Different Letters...................................................................................................67
Report and Examination of Sale ....................................................................................................77
Sale of Personal Property ...............................................................................................................76
Sale of Real Estate .........................................................................................................................76
Settlement by Consent Without Notice..........................................................................................75
Settlement of Estate ................................................................................................................. 75-76
Small Estates Act ...........................................................................................................................79

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Handbook for Probate Judges

Page

Vacation of Sale When Deemed Unfair.........................................................................................77

When An Annual or Partial Settlement Required ..........................................................................75
When Final Settlement May Be Made ...........................................................................................75
When Letters May Be Granted ......................................................................................................67

ADMINISTRATORS (PERSONAL REPRESENTATIVES)

Ad Colligendum .............................................................................................................................69
Administrator Ad Litem .................................................................................................................69
Application for Sale of Land..........................................................................................................77
Bonds Required of .........................................................................................................................68
Compensation ................................................................................................................................78
Co-representatives..........................................................................................................................64
County or General ..........................................................................................................................67
Death of ..........................................................................................................................................78
Duties of ................................................................................................................................... 68-78
Fees Allowed .................................................................................................................................78
Filing of Claims .............................................................................................................................70
Non-resident ...................................................................................................................................67
Notice of Appointment ..................................................................................................................68
Notice Required .............................................................................................................................75
Order of Appointment ....................................................................................................................66
Powers of .................................................................................................................................72, 74
Priorities of Debts ..........................................................................................................................70
Removal of .....................................................................................................................................78
Resignation of ................................................................................................................................78
Successor........................................................................................................................................78

ADMINISTRATIVE FUNCTIONS
General ...........................................................................................................................................31
Of the Judge of Probate............................................................................................................ 31-36

ADMISSION TO MENTAL INSTITUTIONS ................................................................. 95-101

ADOPTION ................................................................................................................................102

ADULT ADOPTION .................................................................................................................106

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 Index

Page

ADVANCEMENTS
From an Estate ...............................................................................................................................81

ALABAMA LEGISLATURE
Establishes Court System .................................................................................................................3

ALLOWANCES
(See Fees)

BLACKSTONE, SIR WILLIAM .................................................................................................1

BONDS
Conservators Required to Make.....................................................................................................93
Filing of ........................................................................................................................................117
List of Persons Required to Make ..................................................................................................36
Method of Recording of .................................................................................................................36
Personal Representative or Special Administrator ........................................................................68
Table for Computing Amount ........................................................................................................20

BURIAL PLACES .....................................................................................................................115

CANONS OF JUDICIAL ETHICS..................................................................................113, 129

CHAIRMAN OF THE COUNTY GOVERNING BODY

Judge of Probate as ......................................................................................................................123

CHIEF CLERK, COURT OF PROBATE

Appellate Duties.............................................................................................................................30
Duties .............................................................................................................................................28
Failure to Deliver Books to Successors in Office ..........................................................................30
Fiduciary Funds .............................................................................................................................30
Liability for Delayed or Defective Record ....................................................................................30
Oath and Bond ...............................................................................................................................28
Performance of the Duties of the Judge of Probate in the Event of Vacancy................................29
Restrictions of the Types of Duties Performed by Chief Clerk .....................................................28
Salary of .........................................................................................................................................29

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Page

CHILDREN
Adoption of ..................................................................................................................................102
Change of Name ..........................................................................................................................107
Guardianship of (see Guardian and Ward) ....................................................................................83
Legitimation of.............................................................................................................................107

CIRCUIT COURT
Transfer to ......................................................................................................................................63

CIVIL PROCEDURE RULE......................................................................................................10

CODIFICATION OF LOCAL ACTS ........................................................................................31

COMMISSIONER OF LICENSES ...........................................................................................42

COMMISSIONS
(See Fees)

COMMITMENT TO MENTAL INSTITUTIONS

Appeals ........................................................................................................................................101
Appointment of Attorney and Guardian Ad Litem for Persons Sought to be Committed ............96
Conduct of Hearings ......................................................................................................................97
Evidence Required to Commit ............................................................................................... 97-101
Fees and Costs..............................................................................................................................101
Final Hearing: When ......................................................................................................................97
Findings by the Probate Judge .......................................................................................................98
Inpatient Treatment ........................................................................................................................99
Medical Examination Can be Ordered ...........................................................................................97
Order for Involuntary Commitment for Inpatient
Treatment to be Entered Into Criminal Justice Information System and NICS ....................100
Outpatient Treatment .....................................................................................................................98
Person to be Committed Brought Before Judge of Probate ...........................................................96
Petition for Hearing........................................................................................................................95
Retention of Jurisdiction ..............................................................................................................101
Review of Petition by Judge of Probate .........................................................................................95
Service of Notice by Sheriff ..........................................................................................................96

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Transfer of Committed Persons to the Custody of the Veterans Administration ........................101

When Limitations on Liberty Permitted Pending Final Hearing ...................................................97
When Probable Cause Hearing Held .............................................................................................97

COMPENSATION
Of Judge of Probate .......................................................................................................................24

CONSERVATOR OF PROPERTY
Bond ...............................................................................................................................................93
Compensation ................................................................................................................................94
Conflict of Interest .........................................................................................................................94
Court’s Protective Powers..............................................................................................................93
Failure to Obey Process to Appear and File Accounts and Vouchers ...........................................95
In General.......................................................................................................................................92
Inventory, Records and Accounts ..................................................................................................94
Petition Notice and Hearing ...........................................................................................................92
Powers ............................................................................................................................................94
Priorities .........................................................................................................................................93
Recording of Conservator’s Letters ...............................................................................................94
Removal .........................................................................................................................................92
Standard of Care and Performance ................................................................................................95
Testimony ......................................................................................................................................93
Title to Property .............................................................................................................................94
Venue .............................................................................................................................................92

CONVEYANCES, PROPERTY AND .......................................................................................81

CONVEYANCES
Must be Recorded ..........................................................................................................................34

CORPORATIONS
Articles of Incorporation and Other Filings ...................................................................................38
Filing Fees ......................................................................................................................................38
Incorporation Fees .........................................................................................................................38
Special ............................................................................................................................................38

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COSTS OF PROBATE OFFICE ...............................................................................................24

COUNTY BOARD OF HEALTH ............................................................................................124

COUNTY GOVERNING BODY

Administrative Tasks ...................................................................................................................123
County Board of Health ...............................................................................................................124
Keeping Other Members of the Commission Informed on Matters ............................................124
Preparation of Budgets .................................................................................................................124
Relations of Judge of Probate to ............................................................................................18, 123
Responsibility for Other Executive Acts .....................................................................................125
Summary ......................................................................................................................................125

COURT OF PROBATE
Authority to Establish in Alabama ...................................................................................................3
Jurisdiction of...................................................................................................................................8
Procedure Used in ..........................................................................................................................10
When Deemed Open ......................................................................................................................21
Where Cases May Be Heard ..........................................................................................................21

COURTS
Early American Practice in Organization of ....................................................................................2

DEED AND MORTGAGE TAX ................................................................................................44

DEPARTMENT OF PUBLIC SAFETY

Receives Driver’s Licenses Reports ..............................................................................................47

DEPARTMENT OF REVENUE AND COMPTROLLER

Reports Submitted to......................................................................................................................46

DOCKET, COURT ......................................................................................................................33

DRAINAGE DISTRICTS .........................................................................................................116

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ELECTIONS
Conduct of......................................................................................................................................50
Contested......................................................................................................................................115

EMINENT DOMAIN
Authority ......................................................................................................................................108
Commencement of Condemnation Action...................................................................................108
Commissioners.............................................................................................................................110
Jurisdiction ...................................................................................................................................107
Measure of Damages....................................................................................................................110
Procedure Prior to Commencement of Condemnation Action ....................................................108

ETHICS ACT ...............................................................................................................................11

EX OFFICIO DUTIES OF THE PROBATE JUDGE .............................................................18

EXECUTORS (PERSONAL REPRESENTATIVES) .............................................................68

EXEMPTIONS
From Executions, Attachments, and Garnishment ........................................................................81
From Administration of Estate.......................................................................................................81

FEES
List of Received by Probate Judge (See also Compensation)................................................21, 127

FIDUCIARY FUNDS
Auditing of Public Accounts ..........................................................................................................49
Disposition of Personalty and Realty.............................................................................................49
Of Heirs in Foreign Countries........................................................................................................50
Of Minor ........................................................................................................................................50

FINANCING
The Office of the Judge of Probate ................................................................................................24

FOREIGN ADOPTIONS ..........................................................................................................106

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FUNDS
(See Fiduciary Funds)

GREAT BRITAIN
History of Probate in ........................................................................................................................1

GUARDIAN AND WARD

Alabama Uniform Adult Guardianship and Protective Proceedings and Jurisdiction Act ............86
Delegation of Parental Powers .......................................................................................................83
General ...........................................................................................................................................82
Guardian for Handling Funds From Governmental Entities..........................................................91
Guardian for Incompetent Veteran ................................................................................................91
Guardian of Incapacitated Persons.................................................................................................84
Guardian of Minors ........................................................................................................................83
Testimony ......................................................................................................................................83

IMMIGRATION LAW ...............................................................................................................17

INTERROREM CLAUSE ..........................................................................................................63

INCORPORATION, ARTICLES OF
Duties of Judge of Probate .............................................................................................................38

INDEXES ......................................................................................................................................34

INSTRUMENTS TO BE RECORDED, list of ..........................................................................35

JUDGE OF PROBATE
Administrative Tasks ...................................................................................................................123
Approves, Records, and Files Surety Bonds ..................................................................................36
As Chairman of County Commission ............................................................................................18
Compensation of ............................................................................................................................24
County Board of Health ...............................................................................................................124
Duties of Relating to Elections ......................................................................................................50

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Election of ......................................................................................................................................18
Ex Officio Duties of .......................................................................................................................18
Historical Background of Office of .................................................................................................1
Jurisdiction .......................................................................................................................................8
Legal Framework of Office of in Alabama......................................................................................7
List of Judicial Functions of ..........................................................................................................52
Maintains County Fiscal Records ................................................................................................123
May Not Practice Law During Term of Office ................................................................................7
Method of Selection of...................................................................................................................18
Mine Surveys ...............................................................................................................................118
Miscellaneous Duties of .................................................................................................................18
Oath of Office of ............................................................................................................................20
Office Hours of ..............................................................................................................................21
On An Annual Salary .....................................................................................................................29
Other Records and Files .................................................................................................................40
Penalties for Improperly Handling Duties .....................................................................................31
Preparation of Budgets .................................................................................................................124
Qualifications for ...........................................................................................................................19
Records and Files Kept by .............................................................................................................32
Removal from Office .....................................................................................................................19
Required to Post List of Fees .........................................................................................................23
Responsibility for Other Executive Acts .....................................................................................125
Retired or Supernumerary Judges of Probate ..............................................................................113
Special Probate Judge ..............................................................................................................19, 29
Staffing of Office of .......................................................................................................................27
Terms of in Alabama .....................................................................................................................18
Vacancies Filled .............................................................................................................................19

JUDGE, SPECIAL
Discharges Duties of Judge of Probate ..........................................................................................19

JUDICIAL ARTICLE OF 1973

Impact on Judge of Probate..............................................................................................................5

JUDICIAL FUNCTIONS
Scope of .........................................................................................................................................51

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JUDICIAL ETHICS ..........................................................................................................113, 129

JUDICIAL IMMUNITY .............................................................................................................52

LEGITIMATION ......................................................................................................................107

LETTERS TESTAMENTARY
To Executors (Personal Representatives) ......................................................................................63
Failure of Executors (Personal Representatives) to Apply for ......................................................64

LICENSES
Boat ................................................................................................................................................43
Business, Vocational, and Occupational ........................................................................................43
Certificates of Title ........................................................................................................................44
Deed and Mortgage Tax.................................................................................................................44
Driver’s Licenses ...........................................................................................................................44
General Provisions .........................................................................................................................42
Hunting and Fishing .......................................................................................................................44
Marriage .........................................................................................................................................44
Motor Vehicle Tags and Special Permits.......................................................................................45
Public Warehouses .........................................................................................................................46

LICENSING .................................................................................................................................42

LIMITATIONS UNDER ALABAMA’S TAXPAYER AND

CITIZENSHIP PROTECTION ACT ........................................................................................15

MAINTAINING RECORDS ......................................................................................................32

MANDATORY CONTINUING JUDICIAL EDUCATION .................................................118

MARRIAGE
Correction of Licenses .................................................................................................................115
Issuing of ........................................................................................................................................44
Reporting of ...................................................................................................................................48
Rites of .........................................................................................................................................119

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MENTAL COMPETENCY
Hearings to Determine ...................................................................................................................95

MENTAL INSTITUTIONS
Admission to .......................................................................................................................... 95-101

MERIT SYSTEM.........................................................................................................................27

MINE SURVEYS .......................................................................................................................118

MUNICIPALITIES
Establishment and Dissolution of ................................................................................................118
Reinstatement of ..........................................................................................................................118

NAME, CHANGE OF ...............................................................................................................115

NOTARIES PUBLIC.................................................................................................................111

OATH OF OFFICE .....................................................................................................................20

OATHS
Must be Recorded ..........................................................................................................................37
PENALTIES IMPOSED ON PROBATE JUDGE ...................................................................31

PERSONAL REPRESENTATIVES ..............................................................................72, 74, 78

PERSONALTY, DISPOSITION OF .........................................................................................49

PRETRIAL MOTIONS ..............................................................................................................58

PROBATE COURT
(See Court of Probate)

PROBATE JUDGE
(See Judge of Probate)

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PROPERTY AND CONVEYANCES ........................................................................................81

PUBLIC IMPROVEMENT AUTHORITIES .........................................................................119

QUALIFICATIONS
For Office of Judge of Probate.......................................................................................................19

RECORDS
Method of Keeping ........................................................................................................................32
Of Acts, Reports, and Digests ........................................................................................................34
Of Bonds ........................................................................................................................................36
Of Census Reports .........................................................................................................................34
Of Conveyances .............................................................................................................................34
Of Court Docket .............................................................................................................................33
Of Articles of Incorporation and Other Filings..............................................................................38
Of Election Results ........................................................................................................................35
Of Fee Books .................................................................................................................................33
Of Incorporation Fees ....................................................................................................................38
Of Indexes ......................................................................................................................................34
Of Instruments to be Recorded ......................................................................................................35
Of Liens of Judgments and Decrees ..............................................................................................34
Of Minutes of the Court of Probate ...............................................................................................33
Of Notices of Adverse Possession .................................................................................................34
Of Oaths .........................................................................................................................................37
Of Other Records and Files............................................................................................................40
Of Sheriff’s Fees ............................................................................................................................34
Of Special Corporations .................................................................................................................38

RECORDS, FISCAL ...........................................................................................................18, 123

REDEMPTION OF LAND SOLD FOR TAXES ...................................................................120

REMOVAL
From Office of Judge of Probate ...................................................................................................19
Of Executors and Administrators (Personal Representatives) .......................................................78

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REPORTS
Adoptions, Annulments, and Revocations .....................................................................................46
Business, Professional, and Occupational .....................................................................................46
Certificates of Title ........................................................................................................................46
Driver’s Licenses ...........................................................................................................................47
Hunting and Fishing Licenses ........................................................................................................47
Incorporation ..................................................................................................................................47
Marriage Licenses ..........................................................................................................................48
Motor Vehicle Licenses .................................................................................................................48
Of Deaths and Vacancies in Public Office ....................................................................................47
Of State Land Purchases ................................................................................................................48
Other Reports .................................................................................................................................48

RESIGNATIONS
Reported by Judge of Probate ........................................................................................................47

RETIRED OR SUPERNUMERARY JUDGES OF PROBATE ...........................................113

SALARY
Of Judge of Probate .......................................................................................................................24

SALE OF LAND FOR DELINQUENT TAXES ....................................................................119

SERVICE OF PROCESS ....................................................................................................53, 109

Generally ........................................................................................................................................53
Service by Certified Mail ...............................................................................................................56
Service by a Process Server ...........................................................................................................56
Service by Publication ...................................................................................................................57
Service Refused .............................................................................................................................57
Time Limit for Service...................................................................................................................54
Upon Whom Process Served .........................................................................................................54

SMALL ESTATES ACT .............................................................................................................79

SPECIAL CORPORATIONS.....................................................................................................38

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SPECIAL JUDGE OF PROBATE .............................................................................................19

SPELMAN, SIR HENRY ..............................................................................................................1

STAFFING
Of the Office of Probate .................................................................................................................27

SUPERNUMERARY PROBATE JUDGES............................................................................113

SURVEYS, MINE ......................................................................................................................118

TAX, DEED AND MORTGAGE ...............................................................................................44

TAXES
Refund of .....................................................................................................................................119
Sale of Land for Delinquent Taxes ..............................................................................................119

TERMS OF COURT
(Of Probate) ...................................................................................................................................21

TERMS OF OFFICE
Of Judge of Probate .......................................................................................................................18

VACANCIES ..........................................................................................................................19, 29

WILLS
Contest of .......................................................................................................................................62
Circuit Court, Transfer of Contest to .............................................................................................63
Co-representatives..........................................................................................................................64
Divorce, Effect of...........................................................................................................................59
Duty of Person with Custody of Will ............................................................................................60
Elective Share, Right of Surviving Spouse to ................................................................................59
Executors (Personal Representative’s) Letters Testamentary........................................................63
Exempt Property ............................................................................................................................70
Failure of Executor (Personal Representative) to Apply for Letters Testamentary.......................64
In Terrorem Clause ........................................................................................................................63

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Jurisdiction of Probate Court .........................................................................................................64

Lost Will ........................................................................................................................................61
Notice to Next of Kin .....................................................................................................................60
Powers of Personal Representatives ........................................................................................ 72-74
Pretermitted Child, Effect of Divorce ............................................................................................59
Priority Among Different Letters...................................................................................................67
Probate, Who May .........................................................................................................................60
Proof of ..........................................................................................................................................60
Requirements for Making a Will ...................................................................................................59
Renunciation of Appointment as Executor (Personal Representative) ..........................................64
Right of Surviving Spouse to Elective Share .................................................................................59
Self-Proving ...................................................................................................................................61
Subscribing Witnesses, When Unavailable ...................................................................................61
Successor Personal Representative ................................................................................................78
When and Where a Will Must Be Probated ...................................................................................60
Widow’s Dissent ............................................................................................................................59

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