Ancillary Probate in Alabama for Out-of-State Executors
If your loved one lived in another state but owned a house or land in Alabama, that property usually needs its own Alabama probate case, called ancillary probate (or ancillary administration). When the will has already been probated where your loved one lived, Alabama admits it on an authenticated copy from that court, without notice to the family or a hearing (Ala. Code § 43-8-175). If you are the executor named in the will, you can usually serve from the state where you live, on the same terms as an Alabama resident (§ 43-2-191).
"Ancillary" means secondary. The main probate stays in the home state, where your loved one had a permanent home at death; the Alabama case covers only the Alabama property. In Alabama the executor is called the personal representative, and the court's written appointment is called letters testamentary. Ty Shepard handles the Alabama side of these estates, as part of our probate work for executors.
Do you need probate in Alabama if the will was probated in another state?
Usually yes, if the person who died owned Alabama real estate in their own name. A will passes property only through probate (§ 43-8-161), and letters from another state generally do not give the executor power to sell Alabama real estate. Alabama real estate in their own name means a Huntsville house, a rental or land titled to them alone, or a share owned with someone else without survivorship language (§ 35-4-7).
When Alabama probate is usually not needed
A house deeded to a living trust. The successor trustee handles it under the trust, without a probate case. See what a successor trustee does first.
A deed with a right of survivorship. If the deed says so, the house passes to the surviving owner (§ 35-4-7).
An Alabama bank account or a debt an Alabama resident owed your loved one. Starting 60 days after the death, if no Alabama probate has been opened or applied for, the home-state executor can generally collect it after first recording an authenticated copy of the home-state letters in the probate office of the Alabama county where the bank or other debtor resides (§ 43-2-195).
How Alabama admits a will probated in another state
The court needs a copy of the will and of the order admitting it, authenticated under federal law. The probate judge then admits and records the will without notice or further proceedings (§ 43-8-175). Authenticated means attested by the clerk under the court's seal, with a judge's certificate that the attestation is in proper form, often called an exemplified copy (28 U.S.C. § 1738). Two conditions apply:
Five years. The will must have been admitted to probate in the home state within five years after the death (§ 43-8-161).
The right county. The case belongs in the probate court of the county where the Alabama property is (§ 43-8-162(2), (3)). For most Huntsville homes, that is Madison County. We also handle estates in Limestone, Morgan, Marshall and Jackson counties.
Alabama letters for an executor appointed in another state
If you were appointed executor where your loved one lived, Alabama issues you letters testamentary on the same bond and terms as a resident (§ 43-2-191). Before it does, the court needs a copy of the will, a certificate from the judge of the home court that the will was regularly proved and that letters testamentary were issued to you, and a certified copy of your home-state letters, which it files and records (§ 43-2-192).
Bond. A bond is a promise, usually backed by a surety company, to make good any loss if the executor mishandles the estate. If the will expressly waives bond, the court generally will not require one, though it can in limited cases (§§ 43-2-192, 43-2-851(c)).
Once Alabama letters issue, the Alabama property is administered and settled as if you lived here (§ 43-2-194).
Ancillary probate in Alabama, step by step
Order copies from the home court. An exemplified copy of the will and the order admitting it, a certified copy of your letters, and the judge's certificate. Start early.
File in the Alabama county where the property is. We file the copies with a petition asking the court to admit the will and issue Alabama letters testamentary to you. Letters issue once any required bond is in place.
Creditor notices and claims period. The Alabama clock starts with the Alabama letters, even if the home-state notices already ran. Within 30 days after the Alabama letters, the notice to creditors starts running in a local newspaper, and creditors you know about or can reasonably find get direct notice (§§ 43-2-60, 43-2-61). Creditors generally have until the later of six months after the Alabama letters or five months after the first published notice, but a creditor entitled to direct notice gets at least 30 days after that notice (§ 43-2-350).
Medicaid notice and inventory. Notify the Alabama Medicaid Agency; distributions wait until proof of that notice is filed and 30 days have passed after the agency receives it (§ 43-2-697). The inventory of the Alabama property, with its value at death and any mortgage or other lien, is due within two months after the Alabama letters unless the will expressly excuses filing it and the court does not require it (§ 43-2-835). The executor's guide covers each rule.
The house. Sell it, or transfer it as the will directs.
Pay Alabama debts and close. After the Alabama debts are paid, the rest of the Alabama money can be distributed under the will or sent to the home-state executor (§ 43-2-629(b)). If it is sent there, the court may approve a consent settlement closing the Alabama estate, without notice or publication, once every Alabama charge is paid in full, on a petition the home-state executor consents to (§ 43-2-506).
How long ancillary probate takes in Alabama
Plan on at least six months after the Alabama letters. Creditors have at least that long to file claims, and an ordinary final settlement cannot be made until six months have passed and the debts are paid (§§ 43-2-350, 43-2-501), so open it promptly, even if the main estate is well along. More on how long probate takes in Alabama.
Selling an Alabama house as an out-of-state executor
Once you have Alabama letters, you can sell Alabama real estate if the will expressly gives the power to sell. Otherwise the probate court must approve the sale first (§§ 43-2-194, 43-2-844). We confirm which applies before the house is listed.
When the sale needs court approval, we handle the legal and court work: the petition, the order and the personal representative's deed or other court paperwork. You, your realtor and the closing attorney or title company handle the listing, the title search, prorations and the closing. More on selling a house in probate in Alabama.
If your loved one lived in Alabama and owned property in another state
Then the main probate is here, and a house or land in the other state may need ancillary probate there. That state's probate needs a lawyer licensed there; we represent the executor named in the will in the Alabama probate and work with that lawyer.
For your own planning, property deeded to a funded living trust generally passes without a probate case in the other state (the deed itself may need a lawyer there). See how to avoid probate in Alabama and what to update after moving to Alabama, or talk with Sarah S. Shepard about living trust planning.
Questions about ancillary probate in Alabama
Can I sell the Alabama house with my letters from another state? Generally not. Those letters let you collect certain debts and bank deposits owed by Alabama residents (§ 43-2-195), and bring a lawsuit or receive property here once you record them (§ 43-2-211). A sale takes Alabama letters and the power described above (§§ 43-2-194, 43-2-844).
Do I have to come to Alabama? Usually not. We handle the Alabama filings, notices and court paperwork from Huntsville.
What if the will was never probated in the other state? The route above requires that it was admitted there within five years after the death (§§ 43-8-161, 43-8-175). If it was not, or that case is still pending, talk with us before anything is filed here.
Talk with a Huntsville probate lawyer about the Alabama property
Executor of a will probated in another state, with a house or land in Alabama? Schedule a consultation with Ty Shepard. He handles probate for executors in Huntsville and North Alabama, including the Alabama side of an estate probated elsewhere. More on our Huntsville probate work for executors, or see what an executor does, step by step.
Ty Shepard is a probate and trust administration attorney at Sparkman, Shepard & Shepard, LLC in Huntsville, admitted to the Alabama State Bar in 2012, with an LL.M. in Taxation. He represents executors named in a will and advises successor trustees in Huntsville and North Alabama. More about Ty Shepard.