Dubose v. Weaver, No. 1070579 (Ala., February 25, 2011)
The Alabama Supreme Court recently threw out several years worth of complex litigation over a will contest, holding that neither the Alabama probate court nor the Alabama circuit court had jurisdiction over the estate administration.
The case was vacated due to the Alabama probate attorney’s failure to file the case in the right court.
Here’s how it happened: The personal representative, with the attorney’s assistance, filed a petition to admit the will to probate and for grant of letters testamentary in the Washington County Probate Court. But before the will was admitted to probate, the heirs filed a petition to contest the will and a Petition for Transfer and Removal of the Estate from Probate Court to Circuit Court for Will Contest Proceedings.
The probate court granted the petition to remove to circuit court. Protracted litigation ensued, eventually reaching the Alabama Supreme Court.
Under Alabama law, the probate court is a court of general and original jurisdiction for administration of estates. The circuit court can obtain jurisdiction over a pending administration of an estate only by removing the administration from the probate court to the circuit court pursuant Section 12-11-41 of the Alabama Code, which provides:
“The administration of any estate may be removed from the probate court to the circuit court at any time before a final settlement thereof, by any heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, without assigning any special equity; and an order of removal must be made by the court, upon the filing of a sworn petition by any such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed of any such estate, reciting that the petitioner is such heir, devisee, legatee, distributee, executor, administrator or administrator with the will annexed and that, in the opinion of the petitioner, such estate can be better administered in the circuit court than in the probate court.”
But the circuit court cannot take over jurisdiction of an estate until the Alabama probate process really begins. In other words, the Alabama estate administration must start in the probate court before it can be removed to the circuit court. And the Alabama estate administration doesn’t begin in probate court until the judge actually acts on the petition to admit the will to probate and grant letters testamentary. Simply filing a petition is not enough to start the Alabama probate process and allow removal to the circuit court.
Here’s the takeway for Alabama probate attorneys: File in the right @*&$# court.