Code of Alabama - Title 43: Wills and Decedents' Estates - Chapter 8 - Probate Code
- Article 1 General Provisions.
- Section 43-8-1 General definitions
Subject to additional definitions contained in the subsequent articles which are applicable to specific articles or divisions, and unless the context otherwise requires, in this...
- Section 43-8-2 Construction of chapter; purposes and policies
(a) This chapter shall be liberally construed and applied to promote its underlying purposes and policies. (b) The underlying purposes and policies of this chapter...
- Section 43-8-3 Supplementary effect of principles of law and equity
Unless displaced by the particular provisions of this chapter, the principles of law and equity supplement its provisions.
- Section 43-8-4 Construction against implied repeal
This chapter is a general act intended as a unified coverage of its subject matter and no part of it shall be deemed impliedly repealed...
- Section 43-8-5 Relief against fraud; limitations
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this chapter or if fraud is used to avoid...
- Section 43-8-6 Rules of evidence; evidence as to death or status; presumption of death
In proceedings under this chapter the rules of evidence in courts of general jurisdiction including any relating to simultaneous deaths, are applicable unless specifically displaced...
- Section 43-8-7 Effect of acts by holder of general power of appointment, etc., on beneficiaries
For the purpose of granting consent or approval with regard to the acts or accounts of a personal representative or trustee, including relief from liability...
- Section 43-8-8 Effective date; transition provisions
(a) This chapter takes effect on January 1, 1983. (b) Except as provided elsewhere in this chapter, on January 1, 1983: (1) The chapter applies...
- Section 43-8-9 Savings provision for counties of Jefferson and Mobile
No provision of this chapter shall be construed to void, alter, or modify, when invoked, the equity jurisdiction or powers of Jefferson and Mobile counties.
- Article 2 Applicability, Jurisdiction and Venue, and Implied Oath.
- Article 3 Intestate Succession.
- Section 43-8-40 Intestate estate generally
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as prescribed in the following sections...
- Section 43-8-41 Share of the spouse
The intestate share of the surviving spouse is as follows: (1) If there is no surviving issue or parent of the decedent, the entire intestate...
- Section 43-8-42 Share of heirs other than surviving spouse
The part of the intestate estate not passing to the surviving spouse under section 43-8-41, or the entire intestate estate if there is no surviving...
- Section 43-8-43 Requirement that heir survive decedent for five days
Any person who fails to survive the decedent by five days is deemed to have predeceased the decedent for purposes of homestead allowance, the exempt...
- Section 43-8-44 When estate passes to state
If there is no taker under the provisions of this article, the intestate estate passes to the state of Alabama.
- Section 43-8-45 Division of estate where representation is involved
If representation is called for by this chapter, the estate is divided into as many shares as there are surviving heirs in the nearest degree...
- Section 43-8-46 Inheritance by relatives of half blood
Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
- Section 43-8-47 Inheritance by afterborn heirs
Relative of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.
- Section 43-8-48 Parent and child relationship
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person: (1)...
- Section 43-8-49 Advancements
If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is treated as an advancement...
- Section 43-8-50 Controversy as to advancements - How issue made up and tried
Controversies as to advancements are cognizable before the probate court, on the application, either of a party who has received an advancement, or of a...
- Section 43-8-52 Controversy as to advancements - Proceedings and answer upon death of distributee
In case of the death of any distributee or heir alleged to have received advancements, his legal representatives or heirs at law shall be required...
- Section 43-8-51 Controversy as to advancements - Discovery of advancements
Pending administration of an estate, on the application of the executor or administrator, or someone interested in the estate, to the probate court where the...
- Section 43-8-53 Controversy as to advancements - Contest of answer
Upon the rendition of the report or answer of the distributee or heir alleged to have received an advancement, or of his legal representatives or...
- Section 43-8-54 Controversy as to advancements - Consequence of failure to answer
In case any distributee or heir, or the legal representatives of heirs at law of any distributee or heir alleged to have received an advancement,...
- Section 43-8-55 Against whom debts owed to decedent charged
A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive...
- Section 43-8-56 Alien status not a disqualification to inheriting
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
- Section 43-8-57 Dower and curtesy abolished
The estates of dower and curtesy are abolished.
- Section 43-8-58 Share of persons related to decedent through two lines
A person who is related to the decedent through two lines of relationship is entitled to only a single share, based on the relationship which...
- Article 4 Elective Share of Surviving Spouse; Abatement.
- Section 43-8-70 Right of surviving spouse to elective share
(a) If a married person domiciled in this state dies, the surviving spouse has a right of election to take an elective share of the...
- Section 43-8-71 Right of election personal to surviving spouse
The right of election of the surviving spouse may be exercised only by the surviving spouse during his lifetime. If a guardian, custodian, curator, or...
- Section 43-8-72 Waiver of right to elect and of other rights
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any...
- Section 43-8-73 Procedure for making election; petition; time limit; notice and hearing; withdrawal of demand; order of court; enforcement of order
(a) The surviving spouse may elect to take his elective share by filing with the court and mailing or delivering to the personal representative, if...
- Section 43-8-74 Entitlement of surviving spouse to certain benefits regardless of election
A surviving spouse is entitled to homestead allowance, exempt property, and family allowance, whether or not he elects to take an elective share.
- Section 43-8-75 How elective share satisfied; what property applied first; apportionment of others' liability for balance of elective share
(a) In the proceeding for an elective share, values included in the estate which pass or have passed to the surviving spouse, or which would...
- Section 43-8-76 Order of abatement
(a) Except as provided in subsection (b) of this section and except as provided in connection with the share of the surviving spouse who elects...
- Article 5 Spouse and Children Not Provided for in Will.
- Section 43-8-90 Omitted spouse
(a) If a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted...
- Section 43-8-91 Pretermitted children
(a) If a testator fails to provide in his will for any of his children born or adopted after the execution of his will, the...
- Article 6 Exempt Property and Allowances.
- Section 43-8-110 Homestead allowance
(a) A surviving spouse of a decedent who was domiciled in this state is entitled to a homestead allowance of fifteen thousand dollars ($15,000). If...
- Section 43-8-111 Exempt property
If the decedent was domiciled in this state at the time of death the surviving spouse is entitled to receive, in addition to the homestead...
- Section 43-8-112 Family allowance
In addition to the right to homestead allowance and exempt property, if the decedent was domiciled in this state, the surviving spouse and minor children...
- Section 43-8-113 Source, determination and documentation of exempt property and allowances; petition for relief by personal representative or interested person
If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to homestead and exempt property. Subject to this restriction, the...
- Section 43-8-114 Spouse may retain dwelling, etc., until assignment of homestead
The spouse may retain possession of the dwelling house where the surviving spouse resided with the decedent, with the offices and buildings appurtenant thereto and...
- Section 43-8-115 Discharge of debtor from liability for wages, etc., owed intestate former employee of another; status of funds paid under this section
(a) Whenever an employee of another shall die intestate and there shall be due him or her any sum as wages or salary the debtor...
- Section 43-8-116 Adjustments to exemption values
On July 1, 2017, and at the end of each 3-year period thereafter, the State Treasurer shall adjust each dollar amount in this article or,...
- Article 7 Wills Generally.
- Division 1 Execution of Will.
- Section 43-8-130 Who may make a will
Any person 18 or more years of age who is of sound mind may make a will.
- Section 43-8-131 Execution and signature of will; witnesses
Except as provided within section 43-8-135, every will shall be in writing signed by the testator or in the testator's name by some other person...
- Section 43-8-132 Self-proved will - Form and execution; how attested will made self-proved; effect
(a) Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before...
- Section 43-8-133 Self-proved will - Making attested will self-proved
An attested will may be made self-proved through compliance with section 43-8-132 or as otherwise provided by law.
- Section 43-8-134 Who may witness will
(a) Any person generally competent to be a witness may act as a witness to a will. (b) A will or any provision thereof is...
- Section 43-8-135 Choice of law as to validity of execution
A written will is valid if executed in compliance with section 43-8-131 or if its execution complies with the law at the time of execution...
- Section 43-8-136 Revocation by writing or by act; when witnesses required
(a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency. (b)...
- Section 43-8-137 Revocation by divorce or annulment; revival by remarriage; no revocation by other changes or circumstances
If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made...
- Section 43-8-138 When will revived on revocation of subsequent will
(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter...
- Section 43-8-139 Incorporation by reference
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes...
- Section 43-8-140 Testamentary additions to trusts
A devise or bequest, the validity of which is determinable by the law of this state, may be made by a will to the trustee...
- Section 43-8-141 Reference to events of independent significance
A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the...
- Division 2 Probate of Will.
- Section 43-8-160 Who may have will probated
Upon the death of a testator, any executor, devisee, or legatee named in the will, or any person interested in the estate, or who has...
- Section 43-8-161 Time limit for probate
Wills shall not be effective unless filed for probate within five years from the date of the death of the testator. If the testator was...
- Section 43-8-162 Where will probated
Wills must be proved in the several probate courts as follows: (1) When the testator, at the time of his death, was an inhabitant of...
- Section 43-8-163 Probate not prevented by subsequent incompetency of witnesses
If the witnesses attesting the execution of any will are competent at the time of their attestation, their subsequent incompetency, from whatever cause it may...
- Section 43-8-164 Notice to surviving spouse and next of kin - Generally
Whenever an application is made to prove a will in this state, at least 10 days' notice must be given to the surviving spouse and...
- Section 43-8-165 Notice to surviving spouse and next of kin - Minors
If any of the next of kin are minors, such notice may be served as provided by the Alabama Rules of Civil Procedure; and in...
- Section 43-8-166 Notice to surviving spouse and next of kin - Persons outside state
If either the surviving spouse or next of kin reside and are without the state, notice of such application must be given by publication once...
- Section 43-8-167 Mode of proving will generally
(a) Wills offered for probate, except nuncupative wills, must be proved by one or more of the subscribing witnesses, or if they be dead, insane...
- Section 43-8-168 Depositions of witnesses
When the subscribing witnesses, or any of them, reside out of the state, or are physically unable or in any case in which depositions are...
- Section 43-8-169 Recordation of witnesses' testimony
If it appears, on the proof taken before the judge of probate, that the will was duly executed, the testimony of the witnesses must be...
- Section 43-8-170 Certificate endorsed on will
Every will so proved must have a certificate endorsed thereon, setting forth in substance that such will had been duly proved and recorded, with the...
- Section 43-8-171 Admission of will in evidence
Every will, so proved or endorsed, may be read in evidence in any court of the state, without further proof thereof; and the record of...
- Section 43-8-172 Protection of bona fide purchasers, etc
Any will which is not propounded for probate in this state within 12 months from the date of the death of the testator shall be...
- Section 43-8-173 Withdrawal of will before probate
When any will is filed with the probate judge or in the probate court for the purpose of probating the same, and it becomes necessary...
- Section 43-8-174 Withdrawal of will for proof out of state
Whenever any will has been proved and recorded for six months in any county of this state, as required by this article, and such will...
- Section 43-8-175 Probate of foreign will
When the testator was not, at the time of his or her death, an inhabitant of this state, but was an inhabitant of some other...
- Division 3 Contesting Validity of Will.
- Section 43-8-190 Who may contest will; filing objections; making up issue; trial by jury
A will, before the probate thereof, may be contested by any person interested therein, or by any person, who, if the testator had died intestate,...
- Section 43-8-191 Time for trial; continuance; summoning witnesses
Upon the institution of such contest, a day must be appointed for the trial thereof, and the trial may, on good cause shown by either...
- Section 43-8-192 Drawing and summoning of jurors; penalty for default
(a) The jury for the trial of such contest must be drawn and summoned as provided by law. (b) Any person summoned as a juror...
- Section 43-8-193 Proceedings against defaulting witness
If any witness, being duly summoned, fails to attend, the judge of probate shall enter up a conditional fine against him, not exceeding $50.00, and...
- Section 43-8-194 Depositions of witnesses; rules governing procedure
For the trial of such contest, depositions of witnesses may be taken in like cases, for the same causes and in the same manner, as...
- Section 43-8-195 Admission or rejection of will
When the judgment of the probate court is against the validity of the will, the probate thereof must be rejected; otherwise, the will must be...
- Section 43-8-196 Costs
The costs of any contest under the provisions of this article must be paid by the party contesting if he fails; otherwise, it must be...
- Section 43-8-197 Change of venue
(a) At any time before the trial of such contest, either party may remove the same to another county by proceeding as is required in...
- Section 43-8-198 Transfer of contest to circuit court; appeal from judgment of circuit court; certification of judgment, etc., to probate court
Upon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or the...
- Section 43-8-199 Contest in circuit court after admission to probate - Generally
Any person interested in any will who has not contested the same under the provisions of this article, may, at any time within the six...
- Section 43-8-200 Contest in circuit court after admission to probate - Parties; conclusiveness of judgment
In the event a contest of the probate of a will is instituted in the circuit court, as is or may be authorized by law,...
- Section 43-8-201 Contest in circuit court after admission to probate - Additional time for contest by infants and persons of unsound mind
After the expiration of such six months, the validity of the will can only be contested by infants and persons of unsound mind who had...
- Section 43-8-202 Contest in circuit court after admission to probate - Trial of issues by jury; consideration of witnesses' testimony
The circuit court may, in such case, direct an issue to be tried by a jury, and on the trial before the jury, or hearing...
- Article 8 Construction of Wills.
- Section 43-8-220 Requirement that devisee survive testator by five days
A devisee who does not survive the testator by five days is treated as if he predeceased the testator, unless the will of decedent contains...
- Section 43-8-221 Choice of law as to meaning and effect of wills
The meaning and legal effect of a disposition in a will shall be determined by the local law of a particular state selected by the...
- Section 43-8-222 Controlling effect of intention of testator
The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding...
- Section 43-8-223 Construction of will to pass all property, including after-acquired property
A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will.
- Section 43-8-224 Anti-lapse provision; applicability to deceased devisees and to class gifts
If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of...
- Section 43-8-225 Effect of failure of testamentary provisions
(a) Except as provided in section 43-8-224 if a devise other than a residuary devise fails for any reason, it becomes a part of the...
- Section 43-8-226 Specific devise of securities; change in securities; accessions; nonademption
(a) If the testator intended a specific devise of certain securities rather than the equivalent value thereof, the specific devisee is entitled only to: (1)...
- Section 43-8-227 Nonademption of specific devises in certain cases; proceeds of sale, condemnation, insurance or foreclosure; sale by guardian or curator
(a) A specific devisee has the right to the remaining specifically devised property and: (1) Any balance of the purchase price (together with any security...
- Section 43-8-228 Nonexoneration
A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in...
- Section 43-8-229 Exercise of power of appointment
A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of...
- Section 43-8-230 Construction of generic terms to accord with relationships as defined for intestate succession; when person born out of wedlock treated as child of father
Half-bloods, adopted persons, and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining...
- Section 43-8-231 Ademption by satisfaction
Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or...
- Article 9 Miscellaneous Provisions.
- Section 43-8-250 Contracts concerning succession, etc.; no presumption of nonrevocation from joint or mutual wills
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after January 1,...
- Section 43-8-251 Renunciation of succession
Renunciation of succession shall be through compliance with Article 11 of this chapter or as otherwise provided by law.
- Section 43-8-252 Effect of divorce, annulment, or decree of separation
(a) A person who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by...
- Section 43-8-253 Effect of homicide on intestate succession, wills, joint assets, life insurance and beneficiary designations; effect of bona fide purchase by third party or good faith payment by obligor, etc
(a) A surviving spouse, heir or devisee who feloniously and intentionally kills the decedent is not entitled to any benefits under the will or under...
- Section 43-8-254 Appointment of debtor as executor
The appointment of a debtor as an executor is not a discharge of the debt, unless it is so directed in the will.
- Section 43-8-255 Administrators with will annexed have same powers as executors
Administrators with the will annexed have the same powers and authority over the estates which executors named in the will would have, and their acts...
- Section 43-8-256 Testator may preclude corporation from becoming surety on bond of executor or administrator
Whenever any testator, by the terms of his will, so provides, no corporation shall be accepted upon the bond of any executor or administrator of...
- Article 10 Custody of Wills.
- Article 11 Uniform Disclaimer of Property Interests.
- Section 43-8-290 Short title
This article may be cited as the Alabama Uniform Disclaimer of Property Interests Act.
- Section 43-8-291 Right to disclaim interest in property
(a) A person, or the representative of a deceased, incapacitated person, protected person, incompetent or ward, who is an heir, next of kin, devisee, legatee,...
- Section 43-8-292 Filing and delivery of disclaimer
(a) Except as provided in subsection (c) of this section, if the property or interest has devolved to the disclaimant under a testamentary instrument or...
- Section 43-8-293 Form of disclaimer
The disclaimer shall: (1) Be in writing; (2) Describe the property or interest disclaimed; (3) Declare the disclaimer and extent thereof; and (4) Be signed...
- Section 43-8-294 Effect of disclaimer
(a) If the property or interest devolved to a disclaimant under a testamentary instrument or under the laws of intestacy and the deceased owner or...
- Section 43-8-295 Waiver and bar
The right to disclaim property or an interest therein is barred by: (1) An assignment, conveyance, encumbrance, pledge, or transfer of the property or interest,...
- Section 43-8-296 Remedy not exclusive
This article does not abridge the right of a person to waive, release, disclaim, or renounce property or an interest therein under any other statute.
- Section 43-8-297 Uniformity of application and construction
This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article...
- Section 43-8-298 Applicability of article
An interest in property that exists on the effective date of this article as to which, if a present interest, the time for delivering or...
Last modified: May 3, 2021