4.04.25 Decedent's Estates

Does your state use terminology different from that provided in 4:04.1 of the Underwriting Manual? If so, please identify and define such terms. Provide statutory citations.

No; basically the same.

Does the disposition of property under the laws of intestacy depend upon any of the following classifications of property or rights in property: Community, separate, tenancy by the entirety, dower, curtesy, etc.? If so, summarize. Provide statutory citations.

No. No community property in Alabama. Alabama recognizes tenancy in common and tenancy in common with right of survivorship. Tenancy by the entirety, dower and curtesy have been abolished - Alabama Code Section 43-8-57 (1975).

Does your state recognize joint tenancies? If so, describe the procedure necessary to pass title held in joint tenancy upon the death of a joint tenant. Provide statutory citations.

Yes. Alabama Code Section 35-4-7 provides that in the event a deed or other instrument shows an intention to create a right of survivorship; the property passes to the surviving joint tenant. (see also Numm v. Keith, 289 Ala. 518, 268 So2d 792).

Does your state provide for any special benefits to a surviving spouse or family that allow them to take property contrary to will provisions? Provide statutory citations.

Yes. Before January 1, 1983 a widow could dissent from the will and receive a dower interest in the land as provided in Alabama Code Section 43-3-1. After January 1, 1983 (effective date of Probate Code Revisions), the surviving spouse has the right to take under the will or "elect" to take an "Elective Share" which is the lesser of:

all of the deceased's estate minus the value of the estate of the surviving spouse; or

one-third of the estate of the testator. (ALA. code Sec. 43-8-70).

Summarize the steps required for a testate administration. Provide statutory citations.

The minimum age for devising property is 19 years of age. Alabama Code Sec. 43-1-1, 43-1-2 and 43-8-130. The testator must be competent. The will must be in writing, signed by, or at his/her direction, and attested by two witnesses. ALA. Code 43-8-132 and 43-8-133 provides for self-proving wills. To probate the will, the county in which the testator was an inhabitant or if a non-resident of the state, the county in which the assets are located, has jurisdiction over the estate of the decedent-ALA Code 43-8-162. Any executor, devisee, or legatee named in the will or any person interested in the estate, or who has custody of the will, may file the will for probate. Ten days notice must be given to the surviving spouse and next of kin before a hearing on the petition for probate is heard. Wills are proved by testimony of one of the subscribing witnesses, ALA Code 4-8-167, unless self proved-43-8-132. Wills are not effective unless filed for probate within five years from the date of the testator except for foreign wills; ALA Code 43-8-161. A will not filed for probate within 12 months from death is operative and void as to bona-fide purchasers provided they acquire their interest prior to probate and without actual notice. ALA Code 43-8-172.

A will may be contested by any interested party entitled to inherit the estate if the testator had died intestate. ALA Code 43-8-190. Will may be contested any time before admitted to probate 43-8-190. After the will has been admitted to probate the contest must be filed in circuit court and must be brought within six months 43-8-199.

The granting of letters testamentary is conclusive evidence of the authority of the person to whom they are granted to act, ALA Code 12-11-41. An Executor must give a bond in double the amount of the testators estate unless exempt by express provision in the will. ALA Code 43-2-80.

An Executor must collect and make an inventory of the estate within two months after Letters are filed, unless exempted in the will. ALA Code 43-2-310 to 43-2-318. All claims against the estate must be filed within six months after Letters are granted, however, any known person to have an interest in the estate must be given 30 days personal notice. ALA Code 43-2-60; 43-2-61. The claims must be verified and filed to be a lien on the estate. All property of the testator is subject for payment of debts except for the homestead allowance. ALA Code 43-2-370; ALA Code 6-10-60 to 6-10-66. The debts of the decedent are paid in the following order: (Order of Preference)

  • Funeral Expenses
  • Fees and charges of administration
  • Expenses of last illness
  • Taxes
  • Debts to employees for services rendered
  • All other debts
  • ALA Code Sec. 43-2-371.

An executor is required to make annual settlement; ALA Code 43-2-500. A final settlement may be made at any time after six months from the grant of letters, provided debts are paid and all other conditions allow settlement.

Summarize the steps required for an intestate administration. Provide statutory citations.

Letters of Administration of decedents in testate estates are filed in the county in which the person dying was an inhabitant or where decedent had assets. The first court that assumes jurisdiction retains jurisdiction. ALA Code Sec. 43-2-40 and 43-2-48. Letter of Administration are granted in the following order:

  • Spouse
  • Next of Kin
  • Largest creditor in the state
  • Any other person, except that in counties of over 400,000 persons the county or general administrator is in line behind the largest creditor in the state. No letters may be granted until five days after the intestates death. If not filed within 40 days the order of preference is lost. ALA Code Sec. 43-2-42 and 43.

Administrators must give notice of their appointment in a newspaper of general circulation within one month after appointment and be published once a week for three consecutive weeks but must five personal notice to any known creditors. The granting of letters is conclusive of the authority to convey property for payment of debts. ALA Code Sec. 43-2-48, 43-2-441 and 43-2-442. Administrator is required to give bond. ALA Code 43-2-80, 43-2-84 to 43-2-93. An Administrator must collect and make an inventory within two months after Letters are filed. ALA Code 43-2-310, 43-2-312 and 43-2-315. After January 1, 1983 the surviving spouse or children are entitled to receive, in addition to homestead, property not exceeding in value $3,500.00 in excess of any security interest on furniture, automobiles, furnishings, appliances and personal effects. ALA Code 43-8-111.

The title to property descends instantly at death to the heirs at law subject to the administration of the estate. (Wilder v. Mixon 442. S02d 922 (ALA 1983).

The probate court may authorize an administrator to keep an estate open for ten years, thereafter from year to year. ALA Code 43-2-330. Claims are first paid from cash, but if insufficient the administrator may petition the court to sell personal and real property of the decedent to satisfy debts. Notice of the sale must be given in a newspaper of general circulation in the county for three consecutive weeks ALA Code Sec. 43-2-350; 43-2-370 and 43-2-410 to 43-2-422; 43-2-441; 43-2-442. All the heirs must be given ten days notice of the hearing on the sale. ALA Code 43-2-444 to 43-2-448. The sale may be ordered by the court or such terms as the court may direct. ALA Code 43-2-451. Within 30 days after the sale the court shall confirm the sale and order a deed to be made to the purchaser ALA Code 43-2-459 to 43-2-465. An objection to the judicial sale must be filed before the confirmation and cannot be raised on appeal. (Dubose v. Dubose 507 So2d 465 (ALA 1987).

Descent and Distribution

The Alabama Code was amended on January 1, 1983, hence a distinction is made as to persons dying intestate before 1-1-83 and subsequent there to as follows:

  • Descent of Real Property
  • Prior to January 1, 1983.

The estate of a person dying intestate descends to his children or grandchildren subject to the wife's dower. If there are no descendants, the estate is left to the intestate's parents, grandparents or brothers and sisters. On August 20, 1981 the surviving spouse moved ahead of the intestate's parents to receive real property in line after the intestate's children. ALA Code 43-3-1.

When the intestate dies leaving no descendants, no parents or their descendants and no surviving spouse, the estate passes to the next of kin of the deceased's spouse. ALA Code 43-3-1. This provision was added to the Alabama law on September 6, 1963 and is applicable prior to January 1, 1983.

After January 1, 1983.

Any part of an estate not effectively disposed of by the will passes to the deceased's heirs as follows:

  • Spouse;

    if there are no living children or parent-100%
    if there are no living children but there are surviving parents-$100,000 plus one half the balance;
    if there are living children who are also the children of the surviving spouse-$50,000 plus one half the balance;
    if there are living children who are not the children of the surviving spouse-one half the estate;

  • Children and their children;
  • Parents;
  • Brothers, sister, or their children;
  • Grandparents, aunts and uncles and their descendants;
  • State of Alabama

Is there a procedure or documentation customarily accepted by the bar to indicate heirship which is not based on a statute or cases? (e.g. Affidavits of Heirship) If so, describe the procedure and furnish a sample of any forms.

Yes. Affidavits or Heirship are used; see sample below.

Are there any short or abbreviated probate procedures provided for by statute? If so, summarize. Provide statutory citations.

Yes. ALA. Code 43-2-690 to 43-2-696-Small Estates Act - provides that persons dying testate or intestate with estates that do not include real estate whose personal estate does not exceed $3,000.00 and whose debts have been paid.

Are there any other probate or alternative probate procedures available in your state that haven't been described? If so, summarize. Provide statutory citations.

Yes. Ancillary Administration ALA. Code Section 43-2-190 to 43-2-214; provides for Nonresident Administration of Estates. When the will has been probated in a foreign jurisdiction the executor may apply to the Probate court for ancillary administration. The court will require a certified copy of the Will together with a certificate of the Judge of the court in which the will was probated that the will was proved and letters issued in accordance with the laws of the foreign jurisdiction. The court may appoint an administrator in the event of intestory.

Does your state provide for an "inheritance" tax? If so, is it based on (a) an heir's share of the estate or (b) is it an estate tax on the total value of the estate, or (c) on another basis? When must the inheritance tax return be filed? Provide statutory citations.

Yes. ALA Code 40-15-1 to 40-15-19. Subject to exceptions a tax is imposed upon all net estates passing by will, devise or intestate which tax can only be assessed in an amount equal to credit granted by the Federal Government.

Does your state provide for an inheritance tax lien? If so, summarize, e.g. What are the requirements for (a) attachment, (b) perfection; and (c) enforcement of the inheritance tax lien. Is there a statute of limitations for the inheritance tax lien? If so, specify. Provide statutory citations.

Yes. ALA. Code Section 40-15-13. The State shall have a lien for all taxes and interest which may become due on all property which a decedent dies seized or possessed of subject to taxes under this chapter.

Summarize the steps of the procedure for the sale of real property during the pendency of an intestate administration. Provide statutory citations.

ALA. Code 43-2-444 to 43-2-448. The administrator must file a petition to the probate court for the sale of real property pursuant to proper notice, in the form of a verified affidavit. The court may issue an "Order of Sale" setting forth the terms and conditions of the sale. Within 30 days after the sale, the administrator must report the sale and the court may "confirm" the sale; that there were no irregularities, fairness of price, and order a deed to be issued to the buyer (see #7 above.)

Can a personal representative for a testate administration sell real property of the estate without obtaining a court order? If so, please identify any requirements? Any limitations? Provide statutory citations.

Yes. ALA. Code 43-2-830 and Section 35-4-1. All persons of the age of 19 and not under a legal incapacity may alien their lands by instrument in writing or by their last will. A court of probate cannot order a sale of property to pay debts when it may be done under the power in a will. (Riley v. Wilkinson, 247 ALA 231, So2d. 582 (1945). The devolution of a decedents property in a will is subject to homestead allowance, exempt property, family allowance, rights of creditors, elective share of the surviving spouse, and to administration. ALA.Code 43-2-830 and 43-2-8334. Also ALA.Code 43-2-839; 43-2-840 to 43-2-854.

When, if ever, must a personal representative of a testate administration obtain a court order to sell real property of the estate? Summarize the steps of such procedure. Provide statutory citations.

ALA Code 43-2-844 - unless expressly authorized by the will, a personal representative must obtain prior court approval to acquire or dispose of land; make repairs; subdivide or develop land; lease; extract minerals; sale; mortgage or lease; pay compensation of the personal representative.

Does your state provide for the probate of foreign wills (wills of testators not domiciled in your state)? If so, summarize the provisions and procedures. Provide statutory citations.

Yes. Ancillary Administration ALA. Code Section 43-2-190 to 43-2-214; provides for Nonresident Administration of Estates. When the will has been probated in a foreign jurisdiction the executor may apply to the Probate court for ancillary administration. The court will require a certified copy of the Will together with a certificate of the Judge of the court in which the will was probated that the will was proved and letters issued in accordance with the laws of the foreign jurisdiction. The court may appoint an administrator in the event of intestory.

AFFIDAVIT AS TO HEIRS OF DECEDENT LEAVING NO WILL


THE STATE OF ALABAMA
________________ COUNTY


Before me, __________________, a Notary Public in and for said County in said State, personally appeared ________________________, whose name is signed to this Affidavit and who is known to me, and who being by me first duly sworn deposes and says as follows:

That my name is ____________________, and I reside in ____________ County, Alabama, I am the son (or daughter) of ____________________, deceased, who departed this life on the _______ day of _________________, 19____, leaving no Last Will and Testament and that there has been no administration of his Estate.

That the said ___________ left him his (or her) surviving spouse, ______________, and the following children: (here give names, ages and mental competency) who are all of his distributee and heirs at law.

That the said ________ (name deceased) left no descendants of deceased children surviving him, and none of his distributee and heirs at law have departed this life subsequent to his death.

In witness Whereof, I have hereunto set my hand and seal on this the ______ day of ___________, 19_____.

________________________
Affiant

Sworn and subscribed to before me this the _____ day of _________, 19____.

_________________________________
Notary Public

See, Also, ALA. Code Section 35-4-69; 35-4-70; 35-4-71.