Duties of the Office

 

Alabama Probate Judge’s Association

Responsibilities of Probate Judges

Prepared by: Nick Williams

Judge of Probate, Washington County

 

Source: Handbook for Alabama Probate Judges, Ninth Edition - Alabama Law Institute

 

JUDICIAL FUNCTIONS:

[§ 12-13-1] The court of the probate judge has original and general jurisdictions over the following matters:

  1. The probate of wills.

  2. The granting of letters testamentary and of administration and the repeal or revocation of the same.

  3. All controversies in relation to the right of executorship or administrators.

  4. The settlement of accounts of executors and administrators (personal representatives).

  5. The sale and disposition of the real and personal property belonging to and the distribution of intestate’s estates.

  6. The appointment and removal of guardians for minors and persons of unsound mind.

  7. All controversies as to the right of guardianship and the settlement of guardians’ accounts.

  8. The allotment of dower in land in the cases provided by law.

  9. The partition of lands within their counties.

  10. The change of the name of any person residing in their county, upon his filing a declaration in writing, signed by him, stating the name by which he is known and the name to which he wishes it to be changed. See [§§ 12-13-1, 26-10A-25(c), and 26-11-3]

             [§ 12-13-1] – Likewise, the probate courts are granted jurisdiction by statute in other areas including:

  1. Proceedings related to the establishment and operation of water management districts;[ §§ 9-9-1 through 90]

  2. Eminent domain proceedings; [§§ 18-1A-1 through 311]

  3. Petitions of adoption; [§§ 26-10A-1 through 38]

  4. Legitimation of children; [§ 26-11-2]

  5. The sale and redemption of lands sold for the payment of delinquent taxes; [§§ 40-10-1 through 40-10-30, 40-10-120 through 40-10-143]. (Note: This function has been transferred to the Revenue Commissioner in Washington County.)

  6. Involuntary mental commitment proceedings; [§§22-52-1 through 17]

MISCELLANEOUS:

Note: This is not an all-inclusive list.

  1. Appointment of Special Coroner. The probate judge has authority to appoint a special coroner under the following conditions:

  1. When the coroner has not qualified or the office is vacant and the emergency requires such officer.

  2. When the coroner is absent from the county, having no deputy therein.

  3. When the coroner is imprisoned ; or,

  4. When the sheriff and coroner are either both parties or both interested. [§§ 11-5-10]

  1. Burial Places. The probate judge receives and takes action on petitions to locate and extend boundaries or rural burial places. [§§ 22-20-4]

  2. Contested Elections. The probate judge receives statements contesting the election results of judges of the circuit court, and constables whose duties are limited to his county. [§§ 17-16-54, 58, 59]

  3. Declaration of Residence. In 2012, a procedure was established for a Notarized Declaration of Residence. [§ 12-13-23]

  4. Discretion to Authorize an Agent with the Right of Disposition of a Deceased Person. The probate judge of the county of a decedent’s residence may award the right of disposition to the person the judge determines to be most fit and appropriate to manage the right of disposition, and make decisions regarding the remains of the decedent if the persons possessing the right of disposition do not agree. [§ 34-13-11]

  5. Filing of Bond. Generally, public officials bond must be filed within 40 days after declaration of election or after appointment to office. [§ 36-5-2]

  6. Filing of False Liens. In 2012 the Legislature amended the code and created the crime of offering a false instrument for recording against a public servant which is now a Class C felony. [§ 13A-9-12] This Act also provides that a person or entity whose rights are affected by the filing of a false lien or other instrument may petition the probate judge to nullify or expunge the filing. [§ 13A-9-12 (e)]

  7. Mandatory Continuing Judicial Education. The Alabama Supreme Court entered an Order effective January 1, 2011 requiring all probate judges to comply with annual mandatory judicial education as outline in Section VII of the Rules for Mandatory Continuing Judicial Education. All probate judges are required to earn a minimum of 12 approved judicial education credits each calendar year. The program is administered by the Alabama Law Institute.

  8. Municipalities. The probate judge receives petitions, holds hearings, and conducts elections and other proceedings for the establishment and dissolution of municipal corporations, for the reinstatement of dormant municipal corporations, for the institution of a commission form of government in municipalities, issues court orders confirming election results on the question of merger, annexation, and change of municipal limits as well as proposals to reduce municipal limits. [§§ 11-41-1 through 4, 7, and 21 through 23, 11-44-2 and 6, 11-43-2, 3, 42 through 44, 51, 127, 151 and 154, 11-42-20 through 205]

  9. Notaries Public. [The probate judge shall report to the Secretary of State the name, county of residence, date of issuance, and date of expiration of the commission of each notary public appointed and commissioned. [§ 36-20-70]

ADMINISTRATIVE FUNCTIONS:

Note: This is not an all-inclusive list.

  1. Codification of Local Acts. [§§ 11-13-1 through 2]

  2. Maintaining Records – The probate judge is required to preserve all documents, files, papers, and letters, together with all attachments required by law to be recorded and filed in his office. These records must be kept in a manner to permit convenient reference. [§§ 12-13-41 and 36-12-2]

  1. Fee Books [§ 12-19-45]

  2. Minutes of the Court of Probate. [§ 12-13-41(2)]

  3. Court Docket. [§ 12-13-41(4)]

  4. Sheriff’s Fees. [§ 12-13-41 (5 and 6)]

  5. Acts, Reports and Digests. [§ 12-13-41(8)]

  6. Census Reports. [§ 12-13-41(10)]

  7. Liens of Judgments and Decrees. [§ 12-13-41(12)]

  8. Conveyances. [§ 12-13-41(11)]

  9. Notices of Adverse Possession. [§ 12-13-41(13)]

  10. Indexes. [§ 12-13-43]

  11. Record of Election Results. [§ 17-12-12] [42 U.S.C. § 1974]

  1. Instruments To Be Recorded. Probate Judges must keep large well bound books for recording, word for word, conveyances of property and all other instruments authorized to be recorded, together with acknowledgements, proofs, schedules, plats, surveys, or other necessary attachments. [§ 35-4-58]

  1. Plats or maps [§ 35-2-51]; aerial photographs of land in respective county [§ 35-2-80]

  2. Vacation of plats or streets or alleys [§§ 35-2-53 through 62]

  3. Judgment regarding vacation [§ 35-2-60]

  4. Deeds, mortgages, deeds of trust, bills of sale, leases or memoranda of leases, contracts or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property, all assignment s or mortgages, deeds of trust or other securities for debt or extension agreements [§§ 35-3-51 through 35-4-51.1](except as otherwise provided in UCC)

  5. Petitions, decrees, or orders of bankruptcy [§35-4-52]

  6. Patents from this state or the United States to lands in this state [§ 35-4-56]

  7. Lis pendens [§ 35-4-130]

  8. Notice of actions affecting the title of property [§ 35-4-131]

  9. Notice of levy [§ 35-4-132]

  10. Notice of trust to be recorded [§ 35-4-257]

  11. Documents and instruments concerning condominiums [§ 35-8-11]

  12. Notice of liens [see generally § 35-11-1 et seq.]

  13. Living Wills [§ 22-8A-1 through 14]

  14. A probate judge may also charge the standard fee of one dollar fifty cents ($1.50) a page for copies provided in Code § 10A-1-4.31(h).

  1. Bonds. All county officials of all counties in Alabama must execute official bonds payable to the State of Alabama for the faithful performance of their duties and such additional official bonds as public interest and provisions of the law may require. [§ 11-2-1] The probate judge approves, records, and files surety bonds for most county and municipal officials in the county as well as bonds for certain other persons required by law to execute bonds.

  2. Oaths. In addition to surety bonds, the probate judge also files and records oaths of office by judges of inferior courts and other officials whose duties are confined to his or her county. [§ 36-4-4]

  3. Corporations.

  1. Articles of Incorporation and Other Filings. Probate judges receive articles of incorporation under the laws of Alabama. [§ 10A-1-4.02]

  2. Incorporation Fees. With regard to filing of documents and issuing of certificates of incorporation, probate judges are permitted to collect fees specified in the code. [§§ 10A-1-4.31]

  3. Special Corporations. For special types of corporations, other laws have been adopted. See Code of Alabama 1975.

  1. Licensing. In counties that do not have a License Commissioner, the probate judge issues the license below. The general provisions governing licenses are set out in §§ 40-12-1 through 28.

  1. Boat

  2. Business, Vocational, and Occupational

  3. Certificates of Title

  4. Deed and Mortgage Tax

  5. Driver’s License

  6. Hunting and Fishing

  7. Marriage

  8. Motor Vehicle Tags and Special Permits

  9. Public Warehouses

  1. Conduct Of Elections. The probate judge has a number of duties relating to federal, state, and county elections. The probate judge is an elected county official and is the chief election official in each county. [§ 17-9-2]

  2. Chairman of the Governing Body. There are currently 13 counties in which the probate judge still chairs the commission: Blount, Cherokee, Choctaw, Cleburne, Dallas, Franklin, Geneva, Hale, Henry, Lamar, Lee, Monroe, and Tuscaloosa.

 

 

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