Office of Judge of Probate

Welcome

The Calhoun County Probate Office welcomes you to Calhoun County. I have served as Probate Judge
since 2007, succeeding Judge Arthur C. Murray, who retired after 31 years of service to Calhoun County.

The Probate Office is located at 1702 Noble Street, Suite 102, Anniston, Alabama. We are here to assist you Monday through Friday; 8:00 a.m. until 4:30 p.m. You may contact the Probate Office by dialing (256) 241-2825 or emailing us at probate@calhouncounty.org  The Chief Clerk of Probate is Alfreda Heard.

We look forward to serving your needs at the Calhoun County Probate Office.
Alice K. Martin
Judge of Probate

News:

Requirements to be appointed a Notary Public will change on September 1, 2023, pursuant to Act 2023-548
Additional Details can be found here.

Record Room - Revised Rules and Regulations commencing Monday May 3, 2021.

Corporate Filings will be handled by the Secretary of State's office beginning January 1, 2021.
Information on this change is available here.

Beginning September 1, 2019, Notice shall be given to the Alabama Medicaid Agency in each Estate Case
Alabama ACT 2019-489

Information on Alabama Act 2019-340, new marriage law which goes into effect on August 29, 2019

The Alabama Legislature has adopted Ala. Act 2012-494. A PDF copy of this Act is available here for your information and review. This act requires the utilization of a form to attest to the actual value or actual purchase price of the subject property. You may download the form for future use from our web site. Please read Judge Martin's memo regarding this new Act which goes into effect August 1, 2012.

Judge's memo on additional changes for August 1, 2012 and upcoming changes in 2013.

ALABAMA MARRIAGE CERTIFICATE REQUIREMENTS
Calhoun County Probate Office
256-241-2825

NOTICE OF CHANGE IN MARRIAGE LICENSE LAW
(updated 8/26/2019)

COMMENCING AUGUST 29, 2019, ACT 2019-340 will replace existing state statutory marriage law, and the Judge of Probate will no longer issue a MARRIAGE LICENSE to two persons desiring to unite in marriage.  The new law abolishes the requirement for a license and, while couples may have a ceremony if they so desire, a ceremony will no longer be required.  This new law applies to every county in the State of Alabama. 

Please note that other requirements relating to marriage, such as being of minimum age and not presently married, were not changed by the new law.
 
The new law mandates that two persons desiring to unite in marriage may do so by:

• completing the required form entitled Alabama Marriage Certificate provided by the State, which must be signed by both parties, dated, and notarized.   Notary must place his/her seal on the form.
• delivering the completed original form to the Probate Office for recording within 30 days of the date of the signatures and notarization;
• paying the required fee.

The effective date of the marriage is the latter of the dates of the signatures of both parties.   
Important Note:   If you are having a marriage ceremony, and want that date to be your legal date of marriage, please make sure the Alabama Marriage Certificate form is completed, signed, dated, and notarized on the same date as your ceremony.   The parties have the responsibility to present the completed original form to the Probate Office for recording within 30 days of the signatures of the parties and same being notarized.   The recording of the required form will establish legal recognition of the marriage. The original Alabama Marriage Certificate form filed with the Probate Office will be forwarded by the Judge of Probate to the Office of Vital Statistics, as required by the new law.   The Probate Office will provide a certified copy of the recorded Alabama Marriage Certificate form to the parties for their personal records; cost $3.00 each.

The Alabama Marriage Certificate forms are available in a fillable pdf format and may be printed from the link below. Detailed instructions for completing the Adult Marriage Certificate (in pdf format) are located here. Please access the new Alabama Marriage Certificate form online, at the Alabama Department of Public Health’s website:
https://www.alabamapublichealth.gov/vitalrecords/marriage-certificates.html or the link
on the left of this page.

PLEASE READ INSTRUCTIONS CAREFULLY!   
DO NOT USE WHITE OUT OR CORRECTION TAPE ON FORMS.

There are separate Instructions and form requirements if either party intending to marry is under the age of 18, but a least 16 years of age, and they have not been previously married.
COST TO RECORD IN CALHOUN COUNTY:    $104.00
(SAME AS PREVIOUS COST FOR LICENSE)
We accept CASH or CHECK. No debit or credit cards.

If a couple plans to marry August 29th or thereafter, they will need to comply with the new law and procedure.

IF ONE OR BOTH PARTIES DESIRING TO UNITE IN MARRIAGE ARE UNDER THE AGE OF 18, BUT AT LEAST 16 YEARS OF AGE, and HAVE NOT BEEN PREVIOUSLY MARRIED, THEY ARE REQUIRED TO:

• complete the required form entitled Alabama Marriage Certificate provided by the State, which must be signed by both parties, dated, and notarized.   Notary must place his/her seal on the form.
• complete the required form entitled Affidavit of Consent for Marriage of a Minor, which must be properly signed, dated and notarized by parent(s) or guardian(s) of the minor(s).   Notary must place his/her seal on the form.
• both pages must be presented together to the Probate Court in order for the marriage to be valid. 
• deliver the completed original forms to the Probate Office for recording within 30 days of the date of the signatures and notarization;
• pay the required fee.

The effective date of the marriage is the latter of the dates of the signatures of both parties.    Important Note:   If you are having a marriage ceremony, and want that date to be your legal date of marriage, please make sure the required forms are completed, signed, dated, and notarized on the same date as your ceremony.   The parties have the responsibility to present the completed original forms to the Probate Office for recording within 30 days of the signatures of the parties and same being notarized.   The recording of the required forms will establish legal recognition of the marriage. The original Alabama Marriage Certificate form and the Affidavit of Consent for Marriage of a Minor form filed with the Probate Office will be forwarded by the Judge of Probate to the Office of Vital Statistics, as required by the new law.   The Probate Office will provide a certified copy of the recorded Alabama Marriage Certificate form to the parties for their personal records; cost $3.00 each.

The Alabama Marriage Certificate and the Affidavit of Consent for Marriage of a Minor forms are available in a fillable pdf format and may be printed from the link below. Detailed instructions for completing the Minor Marriage Certificate (in pdf format) are located here. To access the new required forms and instructions online, at the Alabama Department of Public Health’s website:  https://www.alabamapublichealth.gov/vitalrecords/marriage-certificates.html

PLEASE READ INSTRUCTIONS CAREFULLY! 
DO NOT USE WHITE OUT OR CORRECTION TAPE ON FORMS.
COST TO RECORD IN CALHOUN COUNTY:    $104.00
(SAME AS PREVIOUS COST FOR LICENSE)
We accept CASH or CHECK. No debit or credit cards.

If a couple plans to marry August 29th or thereafter, they will need to comply with the new law and procedure.

Alice K. Martin, Judge of Probate, Calhoun County  (256) 241-2825

Adoptions

Adoption is the legal procedure through which a minor (18 years or younger) is recognized by law as becoming the son or daughter of the adopting adult(s), and as having all of the rights and duties of such relationship, including the right of inheritance. There are several different types of adoptions, which include related, unrelated, agency-placed, or private-placement. Through adoption, the adoptive parent(s) have the same rights, duties and responsibilities of a natural parent. In all cases, the adoptive parent needs to contact an attorney to file the Petition for Adoption in the county where the minor resides, or where the agency is located.

If you have additional questions call 256-241-2825

Conservators

A Conservator is a person appointed by the Court to handle the financial matters and property of a minor or adult person who is incapacitated.  An incapacitated person is someone who is physically and/or mentally unable to care for himself or herself. In some cases the person has a chronic use of drugs or alcohol, is confined, or is being detained by a foreign power, or has disappeared.

A Conservator may be appointed when a person can no longer handle property or manage business affairs.  The person might have property that will be wasted without a Conservator or be in need of funds to support them. In many cases, the person has entered a nursing home and has become incapacitated and needs his/her property to be sold in order to generate funds to support them while in a nursing home.

Once the petition for appointment of a Conservator is filed for an adult,  a physician must examine the ward and render a report of his findings. In addition, the Court will appoint a Court Representative and a Guardian ad Litem. In the case of a minor the Court will only appoint a Guardian ad Litem. If the petition is granted, the Court will set a bond for the conservator and will set the first accounting period. The Conservator must file an inventory with the Court within 90 days of appointment. The Conservator must keep a record of all transactions, both incoming and outgoing, and give an accounting as the Court directs.

Guardians

A Guardian is a person appointed by the Court to make decisions concerning a person's physical needs. An incapacitated person is someone who is physically and/or mentally unable to care for himself/herself. In some cases the person has a chronic use of drugs or alcohol, is confined, or is being detained by a foreign power, or has disappeared.

A Guardian may be appointed when a  person can no longer make decisions regarding their personal needs. In some cases a Guardian might become necessary because the person might have suffered a stroke or other illness and be unable to respond or make medical decisions alone.

Once the petition for appointment of a Guardian is filed for an adult, a physician must examine the ward and render a report of his/her findings. In addition, the Court will appoint a Court Representative and a Guardian ad Litem. In the case of a minor the Court will only appoint a Guardian ad Litem.

Liquor License Information

If these requirements are not met,
liquor purchases from the ABC Board
will be denied. 

Liquor License Information

The State of Alabama and Calhoun County requires all businesses serving or selling liquor
to purchase a license. Information on the process to obtain a license is as follows:

Requirements for Retail Sale of Liquor

• Obtain approval and license from the Alcoholic Beverage Control (ABC) Board
  located at 1826 Quintard Avenue, Anniston, AL. 36201. Telephone (256) 237-3211
• Obtain a Calhoun County liquor license from the Judge of Probate located at
  1702 Noble Street, Anniston, AL. 36201. Telephone (256) 241-2825.
  The annual cost for the license is $100.00
  
• If business is to be located within the city limits of a municipality, obtain approval
  and any required license from City Hall.

CALHOUN COUNTY LIQUOR TAX REQUIRED BY ACT 92-465

Legislative Act No 92-465 authorizes the Calhoun County Commission to collect tax in the amount of fourteen percent (14%) for purchases made by retailers at the ABC Board of spirituous beverages and fortified wine (wine containing more than fourteen percent (14%) volume of alcohol). This tax is to be paid to:

Judge of Probate
Calhoun County
1702 Noble Street, Suite 102
Anniston, Alabama 36201

Name Changes

Adult Name Changes

Forms are provided in the Probate Court Office.

• The Petitioner must be a legal resident of Calhoun County and age 19 or older.
• The form must be filled out completely before returning to the Calhoun County Probate Office. It must be notarized outside the Calhoun County Probate Office.
• The filing fee is $65.00

Minor Name Changes

You will need to contact an attorney for a minor name change

• Minor children must be legal residents of Calhoun County.
• The Petitioner must present a certified copy of the child's birth certificate. Certified copies may be obtained from the Center of Health Statistics at 334-206-5418.
• A person listed as the father on the birth certificate must petition jointly with the mother for a name change, or sign a consent.
• The minor child who is 14 or older must sign a consent to have a legal name change.
• The filing fee is determined after the paperwork has been filed in the Probate Office.

Involuntary Commitments

Involuntary commitment is a legal procedure by which a person is placed in the custody of the State Department of Mental Health for long-term treatment. This is done only if necessary, and after every effort is made to provide treatment for the person on a voluntary basis. In order to meet the criteria for involuntary commitment, there must be clear and convincing evidence that the person is mentally ill and poses a real and present threat of substantial harm to self or others. Other required elements are that the person is unable to make a rational decision regarding the need for treatment, and that without such treatment, he or she will continue to suffer mental distress. The evidence brought forth by the petitioner must include personal knowledge of specific acts or behavior which signifies a real or present danger.

The petitioner is the individual who goes to the Mental Health Center and asks that measures be taken regarding a mentally ill person, of at least 19 years of age. This is done in the county where the respondent is currently located. The petitioner is usually a family member, but any person may file a petition seeking commitment of another, provided that all the elements are met. Once the petition is filed and probable cause is determined, the patient may be involuntarily confined in a designated mental health facility. A hearing is then set, with notice given to all parties concerned, including the respondent. At the hearing, testimony is heard from all parties, and the Probate Judge determines whether the criteria for commitment have been met. Attorneys are appointed for both petitioner and respondent and all hearings are open to the public, unless otherwise requested by respondent.

If the criteria for commitment are met, then the Court will order inpatient treatment. Any treatment ordered must be the least restrictive alternative available and will take place at a designated mental health facility. The length of treatment is determined by the treating physician, and may be up to 150 days before a subsequent hearing on the merits will be necessary. If the criteria for commitment is not met, then the petition will be dismissed. At no time may the Court order treatment for substance abuse alone, however there are occasions when a dual diagnosis of both substance dependence and mental illness is involved. In these cases, treatment for substance abuse must be voluntary, even if done simultaneously with psychiatric treatment.

The purpose of involuntary commitment is to provide psychiatric treatment for mentally ill individuals who have become a danger to themselves or others, and are refusing voluntary treatment. However, the Court is ever mindful of the serious deprivation of liberty which this process necessarily involves. The Due Process Clause of the Fourteenth Amendment to the U. S. Constitution applies to all citizens, whether mentally ill or not, and every effort is made to ensure that rights are not compromised and unnecessary treatment is never tolerated. The Probate Judge will always take the least restrictive measures to get help for a person with mental illness.

Wills and Administrations

A will is a document which discloses how a person wishes his or her property to be distributed after death. A will must meet certain legal requirements. The law requires that a person making a will must be 18 years of age or older, of sound mind and under no undue influence. The will must be signed by the maker and witnessed by at least two people. After a will is written, it should be kept in a safe place and the executors or personal representatives should be notified where the will is being kept.

A will should be probated within five (5) years after the person is deceased. Forms are available for the probate of a will in Calhoun County.

If a person dies without a will, a Petition for Letters of Administration may be filed. The petitioner must be a resident of the State and is required by law to acquire a bond that will cover the amount of the estate plus one years estimated growth.

 After the Letters are issued, an inventory is required to be filed within 60 days after appointment.

Beginning September 1, 2019, Notice shall be given to the ALabama Medicaid Agency in each Estate Case
Alabama ACT 2019-489

Recording of Instruments

The duties of the Recording Division include the recording, indexing and preserving of permanent documents, primarily real estate records.  Real Property instruments consist of deeds, mortgages, liens, judgments and anything  pertaining to property in Calhoun County.  All recorded documents are public record with the exception of military discharges.

The Alabama Legislature has adopted Ala. Act 2012-494. A PDF copy of this Act is available here for your information and review. This act requires the utilization of a form to attest to the actual value or actual purchase price of the subject property. You may download the form for future use from our web site. Please read Judge Martin's memo regarding this new Act which goes into effect August 1, 2012.

Simultaneous Recording of Deed and Mortgage
The mortgage tax and fee for recording the mortgage will be calculated as mentioned above.  The deed tax will be figured on the amount of the sales price exceeding the amount of the mortgage.  If the mortgage is to a tax-exempt institution, full deed tax is due based on the value of the property or full purchase price.

Miscellaneous Documents
On miscellaneous documents such as affidavits, powers of attorney, releases of liens, assignments, certificates of judgment, basic recording fees are due.  An additional fee for releasing more than one book and page number is also due.

CHECKLIST/REQUIREMENTS for Real Property Recordings

1. Instrument prepared by: Instrument must show the name and address of the preparer.
2. Marital status of Grantors or Mortgagors.
3. Mailing address of Grantees or Mortgagee.
4. Complete legal description including Plat Book or the Section, Township, Range.
5. Signed and notarized.

A self addressed, stamped envelope is required with all mailed envelopes.  Please provide a return envelope large enough to hold the documents.  Documents are returned the day after being recorded. 

Documents that have been stapled are difficult to process on our imaging system.  Please do not staple.  Documents should be legible originals or certified copies.

Please call the Probate Office at 256-241-2825 if you have any questions or problems computing your fees, or any unusual documents to record.   Our goal is to record all documents without unnecessary delays.

Calhoun County Probate Office
Record Room Rules and Regulations

The following rules and regulations will apply:

1. Hours for use of the Record Room will be the same as the regular business hours for the Administration Building; 8:00 a.m. until 4:30 p.m., Monday through Friday.

2. Access to the Record Room will be on a first come, first served basis, with no limitations as to the time you are allowed to stay. 

3. We will no longer have a computer terminal upstairs. 

4. There are 5 computer terminals for use in the main room.   

5. We ask all individuals utilizing the resources of the Record Room to continue to sign in at the front table. 

6. We will continue to follow any COVID guidelines that may be established by the CDC.

7. Those individuals who have an electronic entrance card can continue to use the Noble Street side entrance, where they have been authorized to enter via the electronic entrance card.     

8. We ask all individuals who may be exhibiting symptoms of any illness, including but not limited to fever, coughing, breathing difficulties, to discontinue use of the Record Room (if you are sick, stay home).

   
   

Individuals using the services of the Probate Record Room will be expected to practice good hygiene and follow hand washing protocol as recommended by federal and state guidelines. 

We continue to encourage attorneys and title companies to use on-line resources for your title work needs, but we understand not all records needed are available on-line.

  
Any individual using the resources of the Calhoun County Probate Office Record Room who is exhibiting symptoms or who has been in contact with anyone who is exhibiting symptoms of COVID-19 will be expected to immediately discontinue coming to the Calhoun County Probate Office Record Room until cleared by a medical provider.  

Alice K. Martin, Judge of Probate, Calhoun County

Notary Public
(Act 2023-548)

REQUIREMENTS TO BE APPOINTED A NOTARY PUBLIC WILL CHANGE ON SEPTEMBER 1, 2023, PURSUANT TO ACT 2023-548.

NOTARY PUBLIC DEFINED:

A Notary Public is a public officer whose function it is;

SEPTEMBER 1, 2023, THE NEW ACT BECOMES EFFECTIVE.

The Alabama Probate Judges Association (APJA) and the Alabama Law Institute (ALI) were tasked with formulating the required training program to be utilized pursuant to the Act.  The training program for Applicants will be hosted on the APJA website AT NO COST TO THE APPLICANT.

TO BE APPOINTED A NOTARY PUBLIC IN CALHOUN COUNTY;
APPLICANT MUST be a resident of Calhoun County AND
APPLICANT MUST be capable of posting required surety bond.
SEE STEPS TO FOLLOW AS LISTED BELOW.

STEPS TO FOLLOW TO BE APPOINTED A NOTARY PUBLIC IN CALHOUN COUNTY AFTER ACT 2023-548 BECOMES EFFECTIVE ON SEPTEMBER 1, 2023:

The APJA website provides step by step instructions and the required training program for Applicants AT NO COST TO THE APPLICANT. 

Applicants who are attorneys are exempt under the Act from completing the Training program, however, attorneys must show proof of Bar membership in good standing at the time of the filing of the Application.

https://alpja.org (Follow steps designated as “Notary Public Training”
by clicking on the top right tool bar).

● Any signature acknowledged by a notary public shall be physically executed within Alabama and in the physical presence of the notary public at the time of acknowledgment

● Maintains the process for electronic notarization established in 2021

● Requires the notary public to positively identify the prospective signatory via personal knowledge of the affiant or the examination of photo identification issued by a governmental entity or agency

● Remote notarization may not be used to notarize an absentee ballot application or absentee ballot affidavit or for any purpose relating to voting

● Increases the authorized notarization fee from $5.00 to $10.00 for each notarization act performed

● A notary public shall not perform an acknowledgment in any transaction where he or she has a pecuniary interest.

● Specifies that no fee may be charged by a state, county, or municipal employee for a notarial act performed during, and as a part of, his or her public service, unless otherwise provided by law.

● The commissioning judge of probate may issue a warning to a notary public or restrict, suspend or revoke a notarial commission for a violation of the Notary Public Act and on any ground for which an application for a commission may be denied under the Notary Public Act.  A period of restriction, suspension, or revocation does not extend the expiration date of a notary commission.

● Criminal penalties:

● Reporting Suspected Violations
Any party to a transaction requiring a notarial certificate for verification and any lawyer licensed in Alabama who is involved in such a transaction, in any capacity, may execute an affidavit and file it with either the Alabama Secretary of State or the commissioning judge of probate who issued the notary commission in question, setting forth the actions that the affiant alleges were violations of the Notary Public Act.

● Investigation Of Complaints
The revised Notary Public Act creates a procedure for investigation of allegations of violations of the Notary Public Act by the Alabama State Law Enforcement Agency.  Founded investigations shall be referred to the appropriate district attorney for prosecution.
Resignation or expiration of a notary commission does not terminate or preclude an investigation into the conduct of a notary public by the Alabama Secretary of State, the commissioning judge of probate who issued the notary commission in question, or a law enforcement agency.
The commissioning judge of probate who issued the notary commission may order injunctive relief against an individual who violates the Notary Public Act, including, but not limited to, ordering the surrender and destruction of a notary commission and a notary seal

●  Criminal Liability Of Others
Any individual who knowingly solicits, coerces, or in any material way influences a notary to commit official misconduct is guilty as an aider and abettor and is subject to the same level of punishment as the notary public.

●  Civil Liability
A notary public is not an insurer but under a duty to act honestly, skillfully, and with reasonable diligence.
NOTE - Between 08/28 and 09/01, the Court will be updating the website to provide current information and links to apply to become a Notary Public.

Frequently Asked Questions

THIS INFORMATION, WHICH IS BASED ON ALABAMA LAW, IS TO INFORM AND NOT TO ADVISE. NO PERSON SHOULD EVER APPLY OR INTERPRET ANY LAW WITHOUT THE AID OF A LAWYER WHO ANALYZES THE FACTS, BECAUSE THE FACTS MAY CHANGE THE APPLICATION OF THE LAW.

ESTATES

General Questions About Wills

WHAT IS A WILL?
A will is a document that provides the manner in which a person's property will be distributed when he dies. A person who dies after writing a Will is said to have died testate.

WHO MAY MAKE A WILL?
In Alabama, the maker of a Will must be: (1) be at least 18 years old; (2) of sound mind; and (3) free from improper influences by other people.

HOW DO I MAKE A WILL?
A Will must meet certain requirements set by the State to be considered valid. The Will must be written, signed by the maker, and witnessed by two (2) people in the manner required by the law.

MAY I DISPOSE OF MY PROPERTY IN ANY WAY I DESIRE BY MAKING A WILL?
Almost, but not quite. There are some limitations set by law to avoid placing hardships on the people who survive the deceased. For example, a married person cannot completely exclude the other spouse from sharing in the estate. A lawyer can best explain all of the limitations.

HOW DO I KNOW IF I NEED TO WRITE A WILL?
Any amount of property which you own constitutes your estate. Generally, the size of your estate and your family circumstances determine whether you need a Will. An estate does not have to be any particular size to justify a Will. If you have young children, or property which you would like to assure will be given to certain people, then you should consider writing a Will.

WHEN DO I NEED TO WRITE A WILL?
A Will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision.

WHO MAY DRAFT A WILL?
There is no requirement that a person consult a lawyer before drafting their own will. However, the proper drafting of a Will can be a delicate operation, and it is best to consult someone who has experience. A lawyer can make sure that your Will is legal, and that your property will be given to the people that you intended. A lawyer can also help construct a Will so that your family saves money in administering the estate, and reduces their taxes.

IS A WILL EXPENSIVE?
A lawyer will usually charge for a Will according to the time spent in preparing the Will. If you have a small estate and a simple plan for distributing your property, then your Will should cost less than one for a large, complex estate with several people receiving property.

MAY A WILL BE CHANGED ONCE IT IS WRITTEN?
A person may change his Will as often as he desires. However, the changes must meet the same requirements listed above for the original Will. No change should be made without first consulting the person who drafted the Will.

HOW LONG IS MY WILL "GOOD"?
A properly written and executed Will is "good" until it is changed or revoked. Writing a second Will usually revokes the first Will. However, if there is a change in your estate or your family makeup, you may consider changing your existing Will or writing a new Will. For example, if you sell your house you may need to change your Will to reflect the change in your estate.

WHAT SHOULD I DO WITH MY WILL ONCE IT IS WRITTEN?
Once you have written your Will, you should keep it in a safe place, such as a safety deposit box at a bank. You should also let your family know where the Will is so that they can find it when you die.

PROBATE OF WILLS

WHAT DOES PROBATE OF A WILL MEAN?
Probate of a Will is the administration of an estate to insure that all of the property is disposed of properly. It is the Probate Judge's responsibility to make sure that all of the laws in Alabama regarding the distribution of estates are followed.

WHO SHOULD PROBATE A WILL?
Upon the person's death, anyone named in the Will either as personal representative or as a recipient of property, or any other person with a financial interest in the estate, or the person who has possession of the Will may have the Will proved before the proper Probate Court. Any person in possession of the Will must, by Alabama law, deliver the Will to the Probate Court or to a person who is able to have the Will probated. A person in possession of the Will can be required to produce it.

WHERE SHOULD A WILL BE PROBATED?
Generally, Wills must be filed for probate in the county where the deceased lived.

WHEN MUST A WILL BE FILED FOR PROBATE?
To be effective, a Will must be filed for probate within five years of the date of the testator's death.

DO I HAVE TO HAVE A LAWYER?
The complexity of handling estates normally necessitate having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.

DO I NEED TO PROBATE THE WILL?
Yes, the Will must be probated to have legal effect. Before deciding not to probate a Will one should consult an attorney.

ADMINISTRATION OF AN INTESTATE ESTATE

WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL?
If someone dies without writing a Will, they have died intestate. Each state has specific laws governing the distribution of property when a person dies intestate, and most laws are generally the same. The laws of Alabama are shown below, but you should remember that these laws may not apply if the deceased was not a resident of Alabama, or if the property is located in another state. In this list, "issue" means all of the people who have descended from the decedent. This includes children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.

Property going to the surviving spouse:
entire estate if no surviving issue or parents of decedent;
first $100,000, plus  of balance of estate if there is no surviving issue but there is surviving parent(s);
first $50,000, plus  of balance of estate if there are surviving issue all of whom are also issue of surviving spouse; or
of estate if there are surviving issue who are not issue of the surviving spouse.

Property not going to surviving spouse:
If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority: All of the property passes to the issue, unless there are none. If none, all passes to the parents. If neither parent is living, the estate passes to siblings, and so on under this priority:
issue
parents
brothers and sisters
grandparents
aunts and uncles
cousins

STEPS IN PROBATE OF AN ESTATE:
File petition
Take immediate control of the estate
Inventory of the estate within 2 months
Bond
Notice must be given to all heirs
Letters of Testamentary granted
Notice to file claims must be published and individual notice given to anyone known to have a claim against the deceased
Claims must be filed generally within 6 months
Generally the estate cannot be divided until all claims and expenses have been paid which is at least six months
Court must approve administrator's fees

WHAT ARE THE POWERS AND DUTIES OF A PERSONAL REPRESENTATIVE?
Without court authorization the personal representative may:
retain assets
receive assets
perform deceased contracts
satisfy written charitable pledges
deposit funds in financial institutions
abandon valueless personal property
allocate expenses to income
pay assessments
hold securities
insure assets
borrow to protect estate
settle with debtors
settle claims
pay taxes and expenses
sell or exercise stock options
enter leases up to one year
vote stocks
employ attorney, auditors
prosecute or defend claims,
continue unincorporated business
incorporate the business
limit liability
(Court may limit powers of personal representative)

With prior court authorization the personal representative may:
abandon an estate asset
make repairs or demolish improvements
subdivide, dedicate land
leases greater than on year
enter mineral leases
sell real estate
pay compensation of person representatives

GUARDIANS AND CONSERVATORSHIPS

WHAT IS A CONSERVATOR AND A WARD?
A conservator is a person who is appointed by the court to manage the property of a minor or incapacitated person. A ward is the legal name for a person for whom a guardian has been appointed.

WHO IS AN INCAPACITATED PERSON?
A person who is unable to manage property and business affairs because of: mental illness, mental deficiency, physical illness, infirmities accompanying confinement, detention by foreign power or disappearance.

WHEN CAN A CONSERVATOR BE APPOINTED?
A conservator may be appointed when an incapacitated person is unable to manage property and business affairs, and (a) has property that will be wasted without proper management or (b) funds are needed to support the incapacitated person or one entitled to support from the incapacitated person.

WHAT IS THE DIFFERENCE BETWEEN A GUARDIAN AND A CONSERVATOR?
The guardian looks after the person and their welfare while a conservator look after their estate.

WHAT IS A GUARDIAN?
The parent of a minor or someone who has been appointed by the court to be responsible for the personal care of an individual.

CAN A PARENT OR SPOUSE APPOINT A GUARDIAN?
Yes, in a Will a parent may appoint a guardian for a minor child or for an unmarried incapacitated child. A person may appoint a guardian for his or her incapacitated spouse in a Will.

INVOLUNTARY COMMITMENTS

WHAT IS AN INVOLUNTARY COMMITMENT?
A procedure whereby a person is involuntarily placed in the custody of the State Department of Mental Health for treatment.

WHAT PROCEDURE IS USED TO INITIATE AN INVOLUNTARY COMMITMENT?
Any person may seek to have another person committed by filing a petition with the Probate Court. The petition must contain the following:
name and address of the petitioner; and
name and location of defendant's spouse, attorney or next of kin; and
that petitioner has reason to believe defendant is mentally ill; and
petitioner's beliefs are based on specific behavior, acts, attempts or threats which are described in detail; and
names and addresses of the other people with knowledge of the defendant's illness or who observed the person's overt acts and who may be called as his witnesses.

MUST THERE BE A HEARING?
Yes, a hearing is to be held by Probate Judge without a jury and it is open to the public unless requested otherwise by the defendant. Commitment is granted only if the elements required are established by clear, unequivocal and convincing evidence.
WHAT ARE THE RESULTS FOR THE HEARING?
If commitment is granted, the order shall be entered for outpatient or inpatient treatment. The least restrictive alternative necessary and available for the treatment of the defendant's mental illness shall be ordered. Inpatient treatment may be ordered at a state or a designated mental health facility. Outpatient treatment may be ordered at a designated mental health facility if said facility if said facility consents to treat the defendant on an outpatient basis.

ADOPTION

WHAT IS AN ADOPTION?
Adoption is the legal procedure through which a minor is recognized by law as being the son or daughter of the adopting adult(s) and as having all of the rights and duties of such relationship including the right of inheritance. The adoptee takes the name designated by the petitioner.

WHO MAY ADOPT?
Any person who is 19 or older. The Adoption Code specifically prohibits discrimination in granting adoptions on the basis of marital status or age.

WHO CAN BE ADOPTED?
A minor, defined as being a person under the age of nineteen.

WHAT STEPS ARE USUALLY INVOLVED IN AN ADOPTION?
Preplacement investigation.
All necessary consents and/or relinquishments concerning the adoption are obtained.
Guardian ad litem is appointed when either natural parent of the adoptee is a minor or in case of a contested hearing.
Petition court for authority to pay fees or expenses.
Placement of child with petitioners.
File petition for adoption 30 days after placement.
Serve notice or obtain waiver of notice on or from all parties entitled to notice of the adoption.
Post placement investigation.
Hearings.
Affidavits of non-payment.
Accounting of disbursements.

WHAT IS A PRE-PLACEMENT INVESTIGATION?
It is an investigation conducted for the purpose of determining the suitability of each petitioner and the home in which the adoptee will be placed. The investigation will include a criminal background search and will focus on any other circumstances relevant to the placement of the adoptee.

IS IT ALWAYS NECESSARY TO HAVE A PRE-PLACEMENT INVESTIGATION?
Yes, unless the persons seeking to adopt is a close relative of the adoptee as listed in 26-10A-27; 26-10A-28 of the Code of Alabama.

WHOSE CONSENT TO THE ADOPTION IS REQUIRED?
The adoptee, if 14 years or older unless mentally incapable of giving consent.
The adoptee's mother.
The adoptee's presumed father if he meets the requirements set out in 26-10A-7(c) of the Code of Alabama.
The agency to whom the adoptee has been relinquished or which holds permanent custody except that a court may grant an adoption without the agency's consent when it would be in the child's best interest and the agency's withholding of consent is unreasonable.
The putative father if known; provided that he responds within 30 days after receiving notice of the adoption.

CAN A MINOR CONSENT TO THE ADOPTION OF HIS OR HER CHILD?
Yes, however prior to such consent the court must appoint the minor parent a guardian ad litem to represent the minor's interests. A minor who is 14 years of age or older can nominate a guardian ad litem to protect his or her interests.

CAN A PERSON REVOKE A CONSENT TO ADOPTION EXECUTED BY HIM OR HER DUE TO THE FACT THAT AT THE TIME CONSENT WAS GIVEN THAT PERSON WAS A MINOR?
No, a consent or relinquishment executed by a parent who is a minor shall not be subject to revocation by reason of such minority.

WHEN, WHERE AND IN WHAT FORM MUST A CONSENT OR RELINQUISHMENT FOR ADOPTION BE GIVEN?
A consent or relinquishment for adoption may be given at any time. The prebirth consent of the mother must be signed or confirmed before a probate judge. All other prebirth or post-birth consent or relinquishments must be signed or confirmed before the Probate Judge or clerk of the Probate Court, or someone appointed by that court to do such, a person appointed by the agency conducting the investigation or a notary public. The consent or relinquishment must be in substantially the same form as provided in the adoption code and must be in writing and signed by the person consenting or relinquishing.

WHEN MAY A CONSENT OR RELINQUISHMENT BE WITHDRAWN?
A consent or relinquishment may be withdrawn for any reason five days after the birth of the adoptee or five days after the signing of the consent or relinquishment whichever occurs later. The time to withdraw the consent or relinquishment can be expanded to 14 days if the court finds that such a delay is reasonable under the circumstances and is in the best interest of the child.

WHERE IS A PETITION FOR ADOPTION FILED?
A petition for adoption may be filed in the probate court of any of the following counties: where the minor resides; where the petitioner resides or is in military service, or where the office of the agency or institution having guardianship or custody of the minor is located.

WHEN IS A PETITION FOR ADOPTION FILED?
The adoption petition must be filed within 30 days after the minor is placed with the prospective adoption parent(s) for adoption. If the person seeking the adoption is a stepparent or relative of the adoptee then the adoptee must reside with the petitioner for al year before such petition is filed. If the child has not lived with the stepparent of relative for a year, the adoption will proceed in the same manner as all other adoptions unless the court waives the residence requirement.

CAN I PAY THE PARENT OF A MINOR OR UNBORN CHILD FOR THE CHILD?
No! An offer to make such payment is a Class A misdemeanor, to receive payment for a person's consent to adoption is a class C felony.

WHAT EXPENSES CAN I PAY?
A person seeking to adopt a child may pay maternity connected medical or hospital and necessary living expenses of the mother preceding birth and during pregnancy and during pregnancy related incapacity as long as such payments are made as an act of charity and such payment is not contingent upon placement of the child for adoption. All fees and expenses, including legal, medical, investigative, or other legitimate professional fees may only be paid with court approval.

HOW CONFIDENTIAL IS AN ADOPTION?
The adoption code was designed to keep an adoption as confidential as possible.

Before a final adoption decree is rendered the only people with access to the adoption records are: the petitioner, the petitioner's attorney; the preplacement investigator, and any attorney appointed or retained by the minor being adopted. No other person has access to the adoption records unless they obtain a court order after showing good cause to allow then to inspect records.
All adoption hearings are confidential and held in closed court open only to the interested parties and their counsel, except with leave of the court.
After the final decree of adoption is entered all documents pertaining to the adoption are sealed and identifying information cannot be obtained by anyone except the adoptee under limited circumstances. (see below).
The natural parent(s) may consent in writing under oath to disclosure of identifying information to the adoptee when such adoptee reaches the age of 19. The adoptee upon reaching the age of 19 may petition the court for disclosure of identifying information. Such information will not be released to the adoptee without the natural parent consent unless the court determines it is best after weighting the interests of the parties involved.

WHAT IS THE DIFFERENCE BETWEEN AN ADOPTION BY A STEPPARENT OR A CLOSE FAMILY MEMBER AND OTHER ADOPTIONS?
There is usually a lot less formality and requirements when the adoptee is being adopted by a stepparent or close family member.
Unlike all other adoptions, usually no preplacement or postplacement investigation nor accounting of the cost relating to the adoption are required.

In order to be exempt from these requirements, the adoptee must have lived with the petitioner for at least one year.

CAN GRANDPARENTS OBTAIN VISITATION RIGHTS TO SEE THE ADOPTEE AFTER THE ADOPTION?
Ordinarily the grandparents have no visitation rights with their grandchildren when the natural parents' rights have been terminated by adoption. However, at the court's discretion the court may allow such visitation rights if the child is adopted by a close relative or a stepparent provided it is in the child's best interests.

DEEDS AND RECORDS

MAINTAINING RECORDS
The Probate Judge is required to preserve all documents, files, papers, and orders, 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.

The following records when executed in accordance with law shall be admitted to record in the office of the Probate Judge: (1) Plats or maps; (2) Judgments and liens; (3) Deeds, mortgages, deeds of trust, bills of sale, contracts or other documents purporting to convey any right, title, easement, or interest in any real estate or personal property, all assignments of mortgages; (4) Petitions, decrees, or orders of bankruptcy; (5) Corporations and other forms of business organizations; (6) Lis pendens; (7) Marriage license and military discharges; (8) Documents and instruments concerning condominiums; (9) Mortgages on personal property.

THIS INFORMATION, WHICH IS BASED ON ALABAMA LAW, IS TO INFORM AND NOT TO ADVISE. NO PERSON SHOULD EVER APPLY OR INTERPRET ANY LAW WITHOUT THE AID OF A LAWYER WHO ANALYZES THE FACTS, BECAUSE THE FACTS MAY CHANGE THE APPLICATION OF THE LAW.

History of the Calhoun County
Probate Judge

PROBATE JUDGES OF CALHOUN COUNTY

Judge Emmett Farrow Crook 1886 - 1912
Born in 1851 to Colonel John Martin Crook and his second wife, Narmesia Woodruff Crook, Emmett Farrow Crook worked in the mercantile business and farmed as a young man in Alexandria, Alabama.  He married Sallie (Sara) Walker in 1872.  In 1886, Emmett Farrow Crook was elected Probate Judge of Calhoun County, and was re-elected to that office for 26 years.  Due to failing health, he had to resign his position in March 1912.  He was a deacon at Parker Memorial Baptist Church for many years.  He was also a Mason and an Elk. *This information was provided by Barbara Crook Vaden Sproull.
1912 - 1916: Probate records reflect that during this period three men signed court records; John M. Crook, as “Clerk of Probate Court”, Jos. J. Arnold, W.H. Cooper, and J. F. Rowan.

Judge Thomas W. Coleman 1916 - 1940
Thomas Wilkes Coleman, Jr. was born December 19, 1868 to Thomas Wilkes Coleman and Frances J. (Wilson) Coleman.  He married Carrie Arnold in 1891, in Anniston.   He was a lawyer, and began his practice in Anniston, Alabama in 1889.  He was a member of the legislature from 1896 - 97; attorney for the City of Anniston from 1897 - 99; Judge of the City Court of Anniston from 1901 - 1916.  Judge Coleman served as Probate Judge of Calhoun County from 1916 - 1940.   *This information can be found in History of Alabama and Dictionary of Alabama Biography, Volume 3.

Judge S. Elbert Boozer 1940 - 1947
Judge S. Elbert Boozer was elected, but took office early by appointment, due to the death of Judge Thomas W. Coleman. 
Judge Boozer was one of Anniston’s leading businessmen, and a two-time gubernatorial candidate.  He stated in a profile published August 8, 1971, at the age of 76, that he “went in as Probate Judge here with the special purpose of running for Governor.”  He ran for Governor in 1946, finishing third in a seven-man race, and again in 1950.

Judge G. Clyde Brittain 1947 - 1975
Judge G. Clyde Brittain served as County Treasurer, prior to being elected Probate Judge of Calhoun County, according to county archives.  He was a graduate of Auburn University. 

Judge Arthur C. Murray 1975 - 2007
Judge Arthur C. Murray, formerly a businessman, was appointed by Governor George C. Wallace as Probate Judge in 1975.  Judge Murray is among only a few who served as Probate Judge for over thirty years.   He continues to serve, when appointed by the Chief Justice of the Supreme Court, as Special Probate Judge, in cases where a Probate Judge must recuse.  Upon his retirement, Judge Murray was recognized by the Probate Judges’ Association for having the most “up-to-date” records of any Probate Office in the State of Alabama.