Alabama Small Estate Affidavit Law

Wills and Estates - Small Estates Affidavit Law - Alabama

Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized:
1. Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value.
2. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed.

Alabama Summary:
Under Alabama statute, the surviving spouse or other person entitled to the proceeds of a personal property only estate must file a petition in the office of the probate judge. If the judge finds that the statutory conditions have been met (please see statute below), including the requirement that the value of the estate be less than $3,000, the judge will issue an order that the assets of the estate be distributed.

Alabama Requirements:
Alabama requirements are set forth in the statutes below.

Relevant Statutes are:

Section 43-2-690
Short title.

This division shall be known as the "Alabama Small Estates Act."
(Acts 1975, 3rd Ex. Sess., No. 145, §1.)

Section 43-2-691
Definitions.

For the purposes of this division, the following words and phrases shall have the meanings respectively ascribed to them by this section:

(1) Distributees.
The persons who are entitled to the personal property of a decedent under the terms of a testamentary disposition or under the Alabama descent and distribution statutes.

(2) Devisees.
The persons who are entitled to the personal property of a decedent under the terms of a testamentary disposition.

(3) Heirs.
The persons who are entitled to the personal property of a decedent under the Alabama descent and distribution statutes.

(4) Estate.
All the personal property of a decedent who owns no real property at the time of his death.

(5) Personal representative.
Such term includes an executor, administrator, administrator with the will annexed and special administrator.

(6) Person.
Such term includes natural persons and corporations.

(Acts 1975, 3rd Ex. Sess., No. 145, §2.)

Section 43-2-692

Petition for summary distribution; probate judge to take possession of assets of estate; when surviving spouse or distributees entitled to personal property without administration.

(a) The surviving spouse, if there is one, otherwise the distributees of an estate of personal property only, may initiate a proceeding for summary distribution of the estate by filing a petition as hereinafter provided in the probate judge's office of the county in which the decedent was domiciled at death. The petition shall include a description of the estate of the decedent. The judge of probate or his duly authorized clerk shall take actual possession of any liquid or negotiable assets and constructive possession of all other personal property of the decedent.

(b) The surviving spouse or distributee shall have a defeasible right to the personal property of the decedent without awaiting the appointment of a personal representative or the probate of a will if all of the following conditions exist:

(1) The value of the entire estate does not exceed $3,000.00;
(2) The decedent died a resident of this state;
(3) No petition for the appointment of a personal representative is pending or has been granted;
(4) At least 45 days have elapsed since the filing of a petition for summary distribution under this division and at least 21 days have elapsed since the first notice thereof was published as hereinafter provided;
(5) All funeral expenses of the decedent have been paid, or alternatively, that arrangements for the payment out of the estate of the decedent of all unpaid funeral expenses have been made by the surviving spouse or other distributee;
(6) If the decedent died intestate, the awards due under Alabama descent and distribution statutes to the surviving spouse and to the child or children have been determined by the probate judge, and a certified copy of such determination has been transmitted to the surviving spouse and the child or children;
(7) If the decedent died testate, a document purporting to be his will, which on its face, is properly executed, witnessed and attested in compliance with Alabama law, has been duly filed in the probate judge's office;
(8) Notice of the filing of a petition for a summary distribution under this division must be published once a week for three successive weeks in a newspaper of general circulation in the county in which the decedent was domiciled, or if there is no newspaper of general circulation in such county, then notice thereof must be posted at the county courthouse for three weeks;
(9) All claims against the decedent's estate have been paid or arrangements for the payment out of the estate of the decedent have been made by the surviving spouse or other distributee according to the following priority:

a. First, to each person entitled to payment for any funeral expenses owed by the decedent or his estate; then
b. To the judge of probate for fees and charges incurred in the proceedings for summary distribution; then
c. To any person entitled to payment for expenses incurred in the decedent's last illness; then
d. To the state of Alabama, the county and any municipality therein for taxes assessed on the estate of the decedent previous to his death; then
e. To each secured creditor under article 9 of Title 7 of this Code; then
f. To each unsecured lienholder; then
g. To each remaining general unsecured creditor of the decedent; then
h. To each surviving spouse, child or other distributee who is entitled to take under Alabama's descent and distribution laws, or, alternatively, to each devisee entitled to take under any testamentary disposition of the decedent.

(Acts 1975, 3rd Ex. Sess., No. 145, §3.)

Section 43-2-693

Entry of order directing summary distribution; delivery and release of assets by probate judge.

When all of the applicable conditions enumerated in subsection (b) of section 43-2-692 concur, the judge of probate shall enter an order directing a summary distribution of the estate; and he shall thereupon deliver such liquid or negotiable assets of the estate as have come into his possession and shall release his constructive possession of the other personal property of the decedent to the surviving spouse or distributee entitled to the defeasible interest in the property.
(Acts 1975, 3rd Ex. Sess., No. 145, §4.)

Section 43-2-694
Transfer of property or evidence of rights therein to surviving spouse or distributees.

Upon delivering a copy of the judge's order for summary distribution or an affidavit executed by any person having knowledge of the fact and alleging the concurrence of the conditions listed in subsection (b) of section 43-2-692 showing the defeasible right therein, together with a copy of the decedent's will if the claim is under such will, such spouse or distributee shall be entitled to have the decedent's property or the evidence of the decedent's ownership in such property transferred to him by any person owing any money to the decedent's estate, having custody of any personal property of the decedent or acting as a registrar or transfer agent of any evidence of interest, indebtedness, property or right of the deceased therein.
(Acts 1975, 3rd Ex. Sess., No. 145, §5.)

Section 43-2-695
Limitation on defeasible rights of surviving spouse or distributees.

The defeasible right of the surviving spouse or distributees provided for by this division shall be subject only to any preexisting rights to administer the estate or probate the will, or to the superior rights of any other person to such personal property.
(Acts 1975, 3rd Ex. Sess., No. 145, §6.)

Section 43-2-696
Effect of transfer pursuant to affidavit.

The person making payment, delivery, transfer or issuance of personal property or evidence thereof pursuant to the affidavit prescribed in section 43-2-694 shall be discharged and released to the same extent as if made to a personal representative of the decedent, and he shall not be required to see the application thereof or to inquire into the truth of any statement in the affidavit if made by any other person. If any person to whom such affidavit is delivered refuses to pay, deliver, transfer or issue any personal property or evidence thereof, it may be recovered or its payment, delivery, transfer or issuance compelled in an action brought for such purpose by or on behalf of the person entitled thereto under sections 43-2-692 and 43-2-695 upon proof of the defeasible right declared by such sections. Any person to whom payment, delivery, transfer or issuance is made shall be answerable and accountable therefor to any personal representative of the estate or to the surviving spouse or minor children of the decedent who shall proceed against such person, or to any other person having a superior right to the decedent's estate.
(Acts 1975, 3rd Ex. Sess., No. 145, §7.)

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