What is Probate Court?
The following is a brief summary of the Jurisdictions which have been granted to the Alabama Probate Courts by the Alabama Code of 1975. This summary quotes heavily from the Alabama Code, but does not include every possible area of Jurisdiction granted to the Court. This summary should not be used in place of actual legal research. It is only to be used as a quick reference and easy guide for those who are unfamiliar with the legal system and the pivotal role which the Alabama Probate Courts play in the everyday lives of Alabama citizens.
According to the Oxford English Dictionary the word Probate has been used since the early 1400s (Columbus sailed for the Americas in 1492). By its earliest definitions, Probate referred generally to “the act of proving something; the fact of being proved; proof/demonstration; evidence/testimony…a putting to the test, an experiment”. The legal profession began using this term as early as 1439 to specifically refer to the “official proving of a will” and “the legal process involving this”.
Today, the Black’s Law Dictionary (the standard in legal terminology) defines the Court of Probate as “a court having jurisdiction over the probate of wills, the grant of administration, and the supervision of the management and settlement of the estates of decedents, including the collection of assets, the allowance of claims, and the distribution of the estate.” It goes on to state that in some areas the Court’s Jurisdiction has been expanded to include “the estates of minors, including the appointment of guardians and the settlement of their accounts, and of the estates of lunatics, habitual drunkards, and spendthrifts”. Some areas even go so far as to grant “limited jurisdiction in civil and criminal cases”.
In layman’s terms, Probate Courts are generally created to handle the real and personal property that may be passed from one person’s estate to another after death. This process is more complex than it sounds and includes the creation and management of new accounts, the appointment of responsible parties, the collection of property, and ultimately the distribution of that property to the correct people. With all of this documented property coming in and out of the Probate Court it is only natural that the Court’s responsibility and power has been expanded to include many things such as: recording ownership and division of all land (real property), recording creation and termination of all businesses, recording name changes, and much much more depending on where you live.
In legal terms the power of a court to issue orders and hear cases is known as “jurisdiction”. Courts’ jurisdictions (or powers) are granted to them by either a Constitution or some sort of Legislation. Here in Alabama, the Probate Courts are granted their jurisdiction by the Alabama Code of 1975 (do not be confused by the name, the Alabama Code is regularly updated each year by the State Legislature). In Alabama our Probate Courts do much more than just prove the legitimacy of people’s Wills.
Some of Alabama Probate Courts’ more popular powers are as follows:
- Probate Wills;
- Grant Letters of Testamentary;
- Resolve matters involving Executors of an Estate;
- Resolve matters involving Property of Decedents’ Estates;
- Appoint/Remove Guardians for Minors and Persons of Unsound Mind;
- Recording and Division of Lands in each County;
- Resolve certain matters involving Homestead Exemption;
- Business Filings;
- Name Changes;
- Commitment of Persons to Mental Health Institutions;
- Limited Responsibility and Power in regards to Elections;
- Condemnation of Private Property; and
If you have any questions regarding the Probate Court and what you need to do for any Probate related issue, please feel free to contact our office at 256-533-5252. We will be happy to help you.
By: Geoffrey K. Middleton
Attorney at Law
Written in 2016
The following is a summary of the Alabama Code of 1975 and the Jurisdiction each section granted to Alabama Probate Courts:
ALA. CODE § 12-13-1 (1975) – Probate Courts, Generally
The probate court shall have original and general jurisdiction over the following matters:
- The probate of wills.
- The granting of letters testamentary and of administration and the repeal or revocation of the same.
- All controversies in relation to the right of executorship or of administration.
- The settlement of accounts of executors and administrators.
- The sale and disposition of the real and personal property belonging to and the distribution of intestate’s estates.
- The appointment and removal of guardians for minors and persons of unsound mind.
- All controversies as to the right of guardianship and the settlement of guardians’ accounts.
- The allotment of dower in land in the cases provided by law.
- The partition of lands within their counties.
- The change of the name of any person residing in their county, upon his 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.
- Such other cases as jurisdiction is or may be given to such courts by law in all cases to be exercised in the manner prescribed by law.
ALA. CODE § 9-9-1 (1975) – Water Management District, Petitions
The court of probate of the county in which said [Water Management] petition is filed shall thereafter maintain and have original and exclusive jurisdiction coextensive with the boundaries and limits of said district without regard to county lines for all purposes of this article; subject, however, to the right of appeal to the circuit court of the county in which the petition is filed.
ALA. CODE § 10A-1-4.02 (1975) – Alabama Business and Nonprofit Entities, Filings
The following filing instruments shall be delivered to the judge of probate for filing, except as the chapter applicable to an entity or other provision of this title provides for filing by the Secretary of State or another filing officer:
- certificates of formation or any amendments or restatements thereof;
- certificates of termination;
- certificates of revocation of termination;
- certificates of correction to any filing instrument required to be delivered to the office of the judge of probate for filing; and
- any other filing instrument required or permitted under this title to be delivered to the judge of probate for filing.
Ala. Code § 12-13-23 (1975) – Declarations of Residence
Any person who is absent from this state on military duty, eleemosynary journey, mission assignment, or other similar venture may designate any place within the State of Alabama as his or her residence. Upon filing a notarized declaration of residence with the judge of probate of the county in which the designated place of residence is located, the person and his or her dependent children shall thereafter be considered residents of that designated place for all purposes under the law.
ALA. CODE § 17-13-9 (1975) – Elections
The judge of probate of each county is hereby required to furnish to the officers of the primary election a copy of the official list of voters of each voting place in the county, of the same kind and in the same manner as the judge of probate is required by law to furnish such list to the officers at any general state election. The judge of probate shall also furnish all necessary election supplies. The judge of probate shall deliver such election supplies and lists to the sheriff of the county not less than three days before the day of the election, and it shall be the duty of the sheriff to deliver the same, together with ballot boxes, to the officers of the election, at the place provided by law for holding the election, and not later than one hour before the polls are scheduled to open on election day.
ALA. CODE § 18-1A-270 (1975) – Condemnation of Private Lands
The State of Alabama, or any county, municipality, the University of Alabama, Auburn University, the University of Montevallo or any corporation organized under the laws of this state, or any person or association of persons, proposing to take lands, or to acquire an interest or easement therein, for any uses for which private property may be taken, may, if there be no other mode of proceeding prescribed by law, apply to the probate court of the county in which such lands, or a material portion thereof, may be situate, for an order of condemnation thereof to such uses. The state or any county may institute and maintain the proceedings herein authorized, in its own name, without giving bond or security or causing affidavit to be made, though the same may be required if the action were between private citizens. The written direction of the Governor to the attorney of record is a sufficient authority for bringing the suit.
ALA. CODE § 19-3B-203 (1975) – Trusts
Except as provided in subsection (b), the circuit court has exclusive jurisdiction of proceedings in this state brought by a trustee or beneficiary concerning the administration of a trust. A probate court granted statutory equitable jurisdiction has concurrent jurisdiction with the circuit court in any proceeding involving a testamentary or inter vivos trust.
ALA. CODE § 22-52-1.2 (1975) – Commitment of Mentally Ill Persons
Any person may file a petition seeking the involuntary commitment of another person. The petition shall be filed in the probate court of the county in which the respondent is located. The petition shall be in writing, executed under oath, and shall include the following information:
- The name and address, if known, of the respondent.
- The name and address, if known, of the respondent’s spouse, legal counsel, or next-of-kin.
- That the petitioner has reason to believe the respondent is mentally ill.
- That the beliefs of the petitioner are based on specific behavior, acts, attempts, or threats, which shall be specified and described in detail.
- The names and addresses of other persons with knowledge of respondent’s mental illness who may be called as witnesses. The petition may be accompanied by any other relevant information.
ALA. CODE § 26-10A-3 (1975) – Alabama Adoption Code
The probate court shall have original jurisdiction over proceedings brought under the chapter [Alabama Adoption Code]. If any party whose consent is required fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights. The provisions of this chapter shall be applicable to proceedings in the court having jurisdiction over juvenile matters.
ALA. CODE § 26-11-2 (1975) – Legitimation
A father of a bastard child may seek to legitimate it and render it capable of inheriting his estate by filing a notice of declaration of legitimation in writing attested by two witnesses, setting forth the name of the child proposed to be legitimated, its sex, supposed age, and the name of mother and that he thereby recognizes it as his child and capable of inheriting his estate, real and personal, as if born in wedlock. The declaration, being acknowledged by the maker before the judge of probate of the county of the father’s residence or the child’s residence or its execution proved by the attesting witnesses, shall be filed in the office of the judge of probate of the father’s residence or the child’s residence.
ALA. CODE § 30-1-9 (1975) – Marriage
No marriage shall be solemnized without a license. Marriage licenses may be issued by the judges of probate of the several counties. The license is an authority to anyone qualified to solemnize marriage to join together in matrimony the persons therein named. Any license issued under the provisions of this section shall be invalid if the marriage for which it was issued has not been solemnized within 30 days from the date of issuance. No person now or hereafter authorized by law to solemnize marriages shall perform any ceremony or solemnize any marriage if the license issued for such marriage has become invalid. The license shall have stamped or printed upon it the words: “This license is void after 30 days from date unless the marriage is solemnized within said time.”
ALA. CODE § 36-20-70 (1975) – Notary Public
A competent number of notaries public for the state at large shall be appointed and commissioned by the judges of probate of the several counties of the state and shall hold office for four years from the date of their commission. Notaries public shall perform all the acts and exercise all authority under the general laws of the State of Alabama. The jurisdiction of the notaries public shall not be limited to the counties of their residence and shall extend to any county of the state. The judges of probate shall collect a fee of ten dollars ($10) for each notary commission issued. The judges of probate shall also 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 under this subsection.
ALA. CODE § 40-10-120 (1975) – Land Redemption
In order to obtain the redemption of land from tax sales where the same has been heretofore or hereafter sold to the state, the party desiring to make such redemption shall apply therefor as hereinafter provided and shall deposit with the judge of probate of the county in which the land is situated the amount of money for which the lands were sold, with interest thereon at the rate of 12 percent, together with the amount of all taxes found to be due on such land since the date of sale, as provided herein, with interest at the rate of 12 percent and all costs and fees due to officers.
ALA. CODE § 43-8-1 (1975) – Probate Code
The court having jurisdiction in matters relating to the affairs of decedents. This court in Alabama is known as the probate court.