Handbook For Alabama Probate Judges - Lsa.state.al.us

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Handbookfor AlabamaProbate JudgesTenth EditionClick here for Table of ContentsVolume 1 The Historical Background of the Office of the Probate JudgeThe Legal Framework of the Office of the Probate JudgeThe Administrative Functions of the Probate JudgeThe Judicial Functions of the Probate JudgeThe Functions of the Probate Judge as Chairman of the CountyGoverning BodyAlabama Law InstituteThe Law Revision Division ofLegislative Services Agencywww.lsa.state.al.usAlabama State HouseSuite 20711 South Union StreetMontgomery, AL 36130(334) 261-0680Law CenterRoom 326P.O. Box 861425Tuscaloosa, AL 35486(205) 348-7411

PREFACEOne of the longstanding relationships of the Alabama Law Institute is that which is enjoyedwith the Alabama Probate Judges Association. It has been a great privilege to have partneredwith 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 thisproductive 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 ColemanB. Ransone, Jr. That manual was originally published in 1960 by the Bureau of Public Affairsand 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 wasedited 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 thelast edition and expands the scope of forms included in the book. For the first time, the forms arepublished in a separate book for ease of reference.The primary purpose of this Handbook is to serve as a quick reference for probate judgesin finding legal sources of the duties with which they are entrusted by law. For newly electedprobate judges especially, this Handbook can be an important tool in providing a general overviewof 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 inretirement, she continues to dedicate a significant portion of her time with the Institute educatinglocal officials throughout Alabama, particularly Probate Judges. Penny’s assistance and advicefor 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 helpin reviewing, proofing, and providing valuable insight in the preparation of this draft: HonorableEldora Anderson, Perry County; Honorable Steven Blair, Coffee County; Honorable Judge AlBooth, Autauga County; Honorable Stacy Brooks, Covington County; Honorable Greg Cain,Morgan County; Honorable Patrick Davenport, Houston County; Honorable Don Davis, MobileCounty; Honorable George Diamond, Randolph County; Honorable Robert Agerton, EscambiaCounty; Honorable Brandy Easlick, Chambers County; Honorable Bill English, Lee County;Honorable Chris Greene, Blount County; Honorable Laurie Hall, Marengo County; HonorableStephanie Kemmer, Bibb County; Honorable Alan King, Jefferson County; Honorable AliceMartin, Calhoun County; Honorable Sheila Moore, Winston County; Honorable Steve Norman,Butler County; Honorable Greg Norris, Monroe County; Honorable Ronnie Osborn, DeKalbCounty; 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; HonorableWillie Pearl Watkins Rice, Sumter County; Honorable Charles Woodroof, Limestone County; LisaWhitehead, Tuscaloosa County Chief Clerk; and Greg Butrus.In addition, we would like to thank the following persons who provided assistance on theforms included in the book: Honorable Andrea Lecroy, Marshall County; Nannette Brooks,Chambers County Chief Clerk; Lawana Patterson, Talladega County Chief Clerk, LeanneRichardson, Houston County.Finally, we would like to express our gratitude to Mallory Hall and Katie Windle whoprovided research assistance on this publication while they were law students at the University ofAlabama’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 thelaw, nor is it a substitute for the Code or other legal materials explanatory thereof. Thispublication seeks to serve only as a general guide to the specific mandates of Alabama s lawsregulating probate judges. Users of this publication who have need of authoritative legalstatements should seek such assistance from the appropriate legal source.Although the Alabama Law Institute is a state agency, no conclusions concerning policiesof the State of Alabama are to be drawn from this volume. This statement is also true with respectto the position of the University of Alabama for their earlier editions. The findings andconclusions of the study are those of the editor, who takes sole responsibility for the accuracy ofthe study and for any interpretations of the cases presented.Clay HornsbyDeputy DirectorAlabama Law InstituteJanuary 2019iv

TABLE OF CONTENTSPageI.THE HISTORICAL BACKGROUND OF THEOFFICE OF THE JUDGE OF PROBATE .1A.B.C.The English Foundation .1Early American Practice .2The Development of the Office in Alabama .3II.THE LEGAL FRAMEWORK OF THE OFFICEOF THE JUDGE OF PROBATE .7A.B.C.D.E.The Constitutional and Statutory Base .7The Limited Jurisdiction of the Probate Court .8Validity Accorded Probate Court Decisions .9Ethics Act .11Limitations Under Alabama’s Taxpayer and CitizenProtection Act .15a. Limitations on Business Transactions Conducted by Unauthorized Aliens .15b. Information Relating to Immigration Status .16c. Enforcement of and Compliance with State Immigration Laws .17Ex Officio Duties of the Judge of Probate .18a. Chairman of the Governing Body .18b. Miscellaneous Duties .18Election, Term, Qualifications, Vacancies and Removal .18a. Election and Term .18b. Qualifications .19c. Vacancies .19d. Removal .19Special Judge of Probate .19Bonds .20Oath .20When Court Deemed Open and Where Cases May Be Heard.21Probate Judge Fees .21a. General Fees.21b. UCC Fees .21c. Filing Fees for All Entities .22d. Sale of Land .23e. Posting of Fee Lists .23Costs of the Probate Office .24F.G.H.I.J.K.L.M.v

PageN. Judges of Probate Compensation .24O. Staffing the Probate Office .27P. Chief Clerk .28a. Duties .28b. Oath and Bond .28c. Restrictions of the Types of Duties Performed By Chief Clerk .28d. Performance of the Duties of the Judge of Probate in the Event of Vacancy.29e. Salary .29f. Fiduciary Funds .30g. Appellate Duties.30h. Liability for Delayed or Defective Record .30i. Failure to Deliver Books to Successors in Office .30III. THE ADMINISTRATIVE FUNCTIONS OF THE JUDGE OF PROBATE .31A.B.C.D.E.F.G.H.I.General .31Codification of Local Acts .31Penalties .31Maintaining Records .32a. Fee Books.33b. Minutes of the Court of Probate.33c. Court Docket .33d. Sheriff’s Fees .34e. Acts, Reports, and Digests .34f. Census Reports.34g. Liens of Judgments and Decrees.34h. Conveyances .34i. Notices of Adverse Possession .34j. Indexes .34k. Record of Election Results.35Instruments to be Recorded .35Bonds .36Oaths .37Corporations .38a. Articles of Incorporation and Other Filings .38b. Incorporation Fees .38c. Special Corporations .38Other Records and Files .40vi

PageJ. Licensing .42a. General Provisions .42b. Boat Licenses .43c. Business, Vocational, and Occupational .43d. Certificates of Title .44e. Deed and Mortgage Tax.44f. Driver’s Licenses .44g. Hunting and Fishing .44h. Marriage .44i. Motor Vehicle Tags and Special Permits.45j. Public Warehouses .46K. Reports .46a. Adoptions, Annulments and Revocations .46b. Business, Professional, and Occupational .46c. Certificates of Title .46d. Deaths and Vacancies in Public Offices .47e. Driver’s Licenses .47f. Hunting and Fishing .47g. Incorporation Reports .47h. Marriage .48i. Motor Vehicle .48j. State Land Purchases .48k. Other Reports .48L. Fiduciary Funds .49a. Auditing of Public Accounts .49b. Disposition of Personalty and Realty.49c. Heirs in Foreign Countries .50d. Minor.50M. Conduct of Elections .50IV. THE JUDICIAL FUNCTIONS OF THE JUDGE OF PROBATE .51A. The Scope of Judicial Functions .51B. Judicial Immunity .52C. Service of Process .53a. Generally .53b. Time Limit for Service.54c. Upon Whom Process Served .54d. Service by a Process Server .56e. Service by Certified Mail .56f. Service Refused .57vii

PageD.E.F.G.g. Service by Publication .57Pretrial Motions .58Wills and Administration .

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

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