Title 43 of the Alabama Code (Wills and Decedents’ Estates) governs estate administration and probate in that state. Probate is the legal process by which a decedent’s property is distributed to those legally entitled to it.
When a resident of Alabama dies, his or her estate must go through probate in the county where the deceased maintained permanent residence. Depending on how the decedent held title, real property may also be subject to probate, regardless of whether the decedent died testate (leaving a will) or intestate (not leaving a will).
For real property owners who vest real estate as joint tenants, title automatically transfers by operation of law to the surviving joint tenant(s), but only if a right of survivorship is expressly provided in the deed (Ala. Code § 35-4-7). In addition, property held in trust is devised outside of probate. Any property owned separately or as a tenant in common must go through probate.
When a decedent dies testate, the custodian of the will must deliver it to the judge of probate court to open probate in the appropriate county. After the will is proved and admitted to probate, the custodian may petition for grant of letters testamentary, which letters “serve to grant the person who receives them the authority to administer the estate” . Once appointed, this person is called the executor, or more generally, the personal representative.
When a decedent dies intestate, intestacy laws dictate that the administration of the estate falls to one of the persons authorized under § 43-2-42 who is willing and able to serve, and in the specific order set forth: the husband or widow; the next of kin entitled to share in the distribution of the estate; the largest creditor of the estate residing in Alabama; and finally, any person whom the judge of probate appoints. For counties with a population above 400,000, the county or general administrator is entitled to administer the estate before the final category. Once authorized through the court’s issue of letters of administration, this person is called the administrator, but may also be referred to as a personal representative.
Regardless of the personal representative’s title, his or her duties in administering the estate remain the same. The administrator is entrusted “to identify assets, collect assets, preserve assets, identify heirs and/or devisees, identify creditors, pay claims and administrative costs, and distribute the balance to the heirs and/or devisees” . A personal representative of either a testate or an intestate estate can sell real property to pay debts under § 43-2-441, or, when the land cannot be divided equitably between devisees or heirs, by order of the probate court and with written consent of an adult devisee (§ 43-2-443).
To convey real property on behalf of the decedent’s estate, the personal representative executes a deed. In Alabama, the devise, distribution, or sale of probated real property is generally accomplished using a statutory warranty deed. As differentiated from the general warranty deed, which offers the broadest warranty of title, the narrower statutory warranty under § 35-4-271 is sometimes referred to as a “limited” or “special” warranty. Use of the words “grant,” “bargain,” or “sell” covenants that the grantor is seized of a fee simple estate; that the property is free from encumbrances suffered by the grantor, except those otherwise noted; and that the grantor will defend the title from claims arising by or through him. This more limited warranty is typically used by representatives, who are not able to offer a broader warranty that would extend their liability outside the scope of their fiduciary role.
In addition to the requirements for a deed transferring interest in real property in Alabama (the grantor and grantee information, legal description of the property being conveyed, and document preparer’s information, among others), a general warranty deed executed by a personal representative requires information about the probate case, the decedent, and the status of a will, if applicable. Additional documents may need to be recorded before a personal representative’s deed can be submitted to the office of the judge of probate for recording.
Estate administration can be a complex legal process, depending on many factors, so contact a lawyer to ensure adherence to all stages of Alabama probate law.