Finalizing Probate and Obtaining Authority to Sell Property in Alabama

This answer explains, in simple terms, the practical steps you typically must take in Alabama to complete probate when the decedent’s will is outdated (for example, it doesn’t reflect later changes in property or beneficiaries) and to obtain clear authority to sell estate real property. This is educational information only and not legal advice (see disclaimer at the end).

1. Confirm the currently effective testamentary documents and ownership

• Locate the original will and any codicils. Only the original signed will submitted to the probate court is probated.
• Check for a later will, revocation, or codicil. If there is a later valid will, it controls. If the older will is “outdated” because the testator later transferred the property (sold it, put it in a trust, added a joint owner, or used a transfer-on-death deed), that transfer may remove the property from the estate (doctrine of ademption).
• Search county land records to confirm current title: joint tenants, survivorship interests, deeds to trusts, mortgages, or beneficiary deeds may avoid probate or change who can sign to sell.

2. Open probate and get your letters (authority to act)

To act on behalf of the decedent’s estate in Alabama you normally must have court-issued authority:

1. File a petition with the probate court in the county where the decedent lived to probate the will and to appoint the personal representative (executor). Bring the original will and death certificate.
2. If the will names an executor, that person will usually be appointed. If not, or if the named executor cannot serve, the court appoints an administrator or administrator with the will annexed.
3. Once appointed, the court issues Letters Testamentary or Letters of Administration. These documents are the formal proof of your authority to act for the estate and are essential for banks, title companies, and buyers.

3. When an outdated will affects a proposed sale

“Outdated” can mean different things. Common scenarios and what usually follows:

• Property was sold by the decedent before death — the devise of that property probably adeems (it no longer exists to pass under the will).
• Property title was transferred to joint owners with right of survivorship — it likely passes outside probate to the surviving joint owner(s).
• Beneficiary named in the will predeceased the testator — anti‑lapse rules or intestacy principles may apply.
• Decedent created a trust that holds the property — trust assets do not pass through probate unless assets were left in the decedent’s name.

Because these situations change who has authority to sell, confirm title before attempting a sale. If the property remains part of the probate estate, the personal representative must obtain authority from the probate court to sell.

4. How to obtain court authority to sell estate real property in Alabama

1. Verify the will: If the will expressly gives the executor a power of sale, the court will generally issue authority based on the will and your Letters. Provide the will language to the court and title company.
2. If the will is silent or does not grant sale authority, you generally must file a petition asking the probate court for permission to sell estate real property. Typical grounds: to pay debts, to distribute proceeds to beneficiaries, or because the sale is necessary for proper administration.
3. The court may require notice to heirs and interested parties, an appraisal or listing, and terms that protect estate creditors and beneficiaries. The court then issues an order authorizing the sale and describing any conditions (e.g., confirmation of sale required, minimum price, advertising requirements).
4. After the sale, the personal representative often must file a report or petition to confirm the sale and seek court approval of the sale proceeds distribution, depending on the court’s order and local practice.
5. Execute the deed at closing in your capacity as personal representative. Record the deed in the county land records and provide the purchaser with a certified copy of your Letters and the court order if requested by the title company.

5. Practical checklist — documents and steps the title company or buyer will request

• Certified copy of the Letters Testamentary or Letters of Administration.
• Certified copy of the probate court order authorizing the sale (if the will did not grant express power).
• Certified copy of the death certificate and certified copy of the will admitted to probate.
• Current title search and payoff information for mortgages/liens; obtain releases or lien payoffs at closing.
• Appraisal or market evidence if the court requested a justification for price.
• Proof of notice to heirs or creditors, if required by the court or statute.

6. Creditor claims, timelines, and final accounting

Alabama probate law includes procedures and deadlines for creditor claims and required notices. Before distributing sale proceeds to beneficiaries, the personal representative must follow the statutory claims process and obtain court approval for distributions and final accounting. Check the probate court rules and applicable statutes (see Title 43, Code of Alabama) for specific timing and requirements. Failure to follow the creditor-claim process can leave the personal representative personally liable for unpaid claims.

7. When disputes occur (contested wills, unclear title, or objections to a sale)

• If heirs or potential beneficiaries challenge the will’s validity, the appointment of the personal representative, or the proposed sale, the probate court will schedule hearings. The court can stay a sale until the dispute is resolved.
• If title is defective or a prior transfer is claimed (court-ordered quiet title actions), you may need additional litigation to clear title before a marketable transfer can be made to a buyer.

8. Where to find the Alabama statutes that control these procedures

The Code of Alabama contains statutes on wills, probate administration, and the sale of estate property. Relevant provisions are in Title 43 (Wills, Administration of Estates and Fiduciary Relations). Review Title 43 and the probate court rules for detailed statutory language and deadlines: Alabama Code of 1975 — Table of Contents (Title 43 and related chapters).

Helpful Hints

• Start by locating the original will and any later estate planning documents; the latest valid document controls.
• Obtain a current title search early; it reveals transfers that may remove the property from the estate or require a different process.
• Do not sign as “executor” or try to sell property without court-issued Letters or a court order; buyers and title companies will require them.
• If the will grants a power of sale, bring that language to the probate court and the title company — it can speed the closing.
• Expect the probate process to require notice to heirs and creditors; plan time for the statutory claim period and potential hearings.
• Keep detailed records, receipts, and an accounting of all estate transactions; courts require transparency before closing the estate.
• If heirs disagree, get legal help early to avoid time-consuming litigation or a stalled sale.
• Contact the probate court clerk in the county where the decedent lived to learn local filing procedures and forms; court clerks can often explain filing requirements but cannot give legal advice.

Disclaimer: This article is educational only and does not create an attorney‑client relationship. It is not legal advice. For advice about a particular estate, an outdated will, or authority to sell property in Alabama, consult a licensed Alabama probate attorney who can review the will, title, and local court practice and represent you in court proceedings.