Alabama Petition for Probate

Introduction

Key Things to Know

1. 1

   The probate court of the county where the decedent lived, before a judge of probate, hears the matter (Ala. Code 43-8-162). The filing is a petition to probate the will and for letters testamentary, or, with no will, a petition for letters of administration. The probate court's own form controls over any draft petition.

2. 2

   No one has authority over estate assets until the probate court appoints a personal representative and letters issue. A named executor must still apply and be appointed, and should not distribute, pay heirs or sell property before then. The court admits the will first, then issues letters to a named executor if fit (43-2-20), and does not promise appointment.

3. 3

   A will is not effective unless filed for probate within five years of the testator's death (43-8-161). In an estate with no will, if the persons entitled to administration do not apply within 40 days after the death is known, they are held to have relinquished their right to the administration (43-2-43(b)). A named executor who fails to apply within 30 days after probate loses priority to the residuary legatee (43-2-27).

4. 4

   After the death, on request of an interested person, anyone holding a will must deliver it with reasonable promptness to a person able to secure probate or, if none is known, to an appropriate court. A person who wilfully fails to do so can be liable for damages and, after a court order, held in contempt (43-8-270).

5. 5

   After the will is admitted, letters may issue to a named executor who applies and is a fit person (43-2-20); fit excludes anyone under 19, convicted of an infamous crime or incompetent (43-2-22(a)). Without a serving executor, priority runs to the residuary legatee, then the principal legatee, then the intestacy order: the husband or widow, next of kin entitled to share, the largest creditor residing in the state, then any other person the judge appoints (43-2-27, 43-2-42). A nonresident cannot be appointed administrator unless already a qualified executor or administrator of the same estate elsewhere (43-2-22(a)).

6. 6

   Before the will is heard, at least 10 days' notice goes to the surviving spouse and next of kin residing in the state (43-8-164). If any next of kin are minors, the court appoints a disinterested attorney as guardian ad litem, and the will cannot be probated until that attorney agrees in writing to represent them (43-8-165). After letters, the representative must give actual notice to known or reasonably ascertainable creditors by first-class mail or another method reasonably calculated to reach them, and publish notice once a week for three successive weeks; the published notice must be given within 30 days of letters (43-2-60, 43-2-61). Claims are barred unless presented within six months after letters or five months from first publication, whichever is later, with 30 days after actual notice for a creditor entitled to it (43-2-350). Bond payable to the judge of probate is required with sureties; a will may exempt the representative, but bond can still be required if an interested person shows their interest is endangered or the court finds the estate likely to be wasted (43-2-851).

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate. Alabama also allows a summary distribution for some personal-property-only estates, and after appointment a representative generally acts without court orders unless the court directs (43-2-834). See our small estate affidavit page for that route.

Alabama Requirements for Petition for Probate

• County Probate Court and Judge of Probate

  The petition is heard by the probate court of the county where the decedent lived, before a judge of probate. For a nonresident decedent, it is the county where the decedent died with assets, or where assets are located or later brought (Ala. Code 43-8-162). The probate court's own form controls.

• Petition to Probate Will and for Letters

  With a will, a petition to probate the will and for letters testamentary. With no will, a petition for letters of administration. The will is admitted first, then letters issue to a named executor if fit (43-2-20). The court's form controls over any draft.

• Five-Year Limit to File a Will

  A will is not effective unless filed for probate within five years of the testator's death (43-8-161). After the death, on request of an interested person, a person holding a will must deliver it with reasonable promptness to a person able to secure probate or to an appropriate court (43-8-270).

• Priority and Qualification to Serve

  Letters issue to a named executor if a fit person (43-2-20), but only after the will is admitted and the court appoints them, and a named executor who fails to apply within 30 days after probate loses priority (43-2-27). Fit excludes anyone under 19, convicted of an infamous crime or incompetent (43-2-22(a)). Otherwise priority runs to the residuary legatee, the principal legatee, then the husband or widow, next of kin, the largest creditor residing in the state and any other person the judge appoints (43-2-27, 43-2-42). In an estate with no will, if the persons entitled to administration do not apply within 40 days after the death is known, they are held to have relinquished their right (43-2-43(b)).

• Nonresident Administrator Bar

  A nonresident may not be appointed administrator unless already a qualified executor or administrator of the same estate in another jurisdiction (43-2-22(a)).

• Ten Days' Notice Before the Will Is Heard

  At least 10 days' notice must go to the surviving spouse and next of kin residing in the state before an application to prove a will is heard (43-8-164). For minor next of kin, a disinterested attorney is appointed as guardian ad litem and must agree in writing to represent them before the will can be probated (43-8-165).

• Creditor Notice and Claims Period

  After letters, notice goes to known or reasonably ascertainable creditors and is published once a week for three successive weeks; the published notice must be given within 30 days of letters (43-2-60, 43-2-61). Claims must be presented within six months after letters or five months from first publication, whichever is later, with 30 days after actual notice; claims not presented are forever barred (43-2-350).

• Bond Required; Will Exemption Is Limited

  The court must require bond payable to the judge of probate, with sureties. A will may exempt the representative by express provision, but bond is still required on an interested person's affidavit that their interest is endangered, or if the court finds the estate likely to be wasted. The court may reduce or increase the bond at any time (43-2-851).