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Authored by: Andrew Parr
Confusion regarding Alabama Probate Codes and Procedures has led to inconsistency among courts in the process for the private sale of land in probate proceedings. This is intended to address, clarify, and demonstrate the function of this statutory framework.
Any analysis done herein assumes a decedent has died intestate, all heirs and devisees are known, live in the state, are above the age of 19, and are of sound mind.
Probate procedure for the sale of lands by an estate for the payment of debts and for division is governed by Title 43, Chapter 2, Article 17, Division 1.[1] The statutes of Division 1 of Article 17 work together to provide the court authority and the required procedural requirements to approve the sale of land for the payment of debt or division. Whether the sale is for debt or division, the procedures track closely.[2] When sold for payment of debt, § 43-2-442 grants proper statutory authority for the sale[3] and for purposes of division, § 43-2-443 grants this same authority.[4]
The second step of this statutory framework requires filing an application for the sale of lands with the probate court.[5] This application must be made by the executor or administrator in writing, verified by affidavit, to the court, describe the lands accurately, give the names and residence of heirs and devisees, and, if any of those heirs or devisees are under the age of 19 or of unsound mind, the statute, for the purpose of ensuring due process to all parties, allows for any party with an interest in the estate to contest this application.[6] Ala. Code § 43-2-445 then provides “The court MUST [emphasis added] appoint a day, not less than 30 days from the time of making such an application for, the hearing thereof”.[7] This 30-day period and the subsequent hearing are requirements under the statute, and the statute provides no authority for the court to bypass or waive either of these requirements when the sale is for debt of division.[8]
Assuming there are no minors or persons of unsound mind, the court must issue a citation to the heirs or devisees residing in the state and notify them of the application and the time of the hearing; this notice must be served on them 10 days prior to the hearing to allow for interested parties who have not consented to contest the sale.[9] If this application is made for the purpose of payment of debts, the statute states “notice MUST [emphasis added] also be given by publication, once a week for three successive weeks, in some newspaper published in the county”.[10] When said application is granted, and the land is to be sold, “the executor or administrator MUST [emphasis added] give notice of the day, place, terms of sale, and description of the property to be sold by advertisement for three successive weeks” in a newspaper in the county the land is to be sold (there are more requirements if said county does not have a paper); the statute also provides that the court may direct the distribution of handbills or posters, “to be distributed in the manner best calculated to give extended notice of the sale”.[11]
These constant requirements of notice and publication, and even the ability of the court to distribute handbills “in the manner best calculated to give extended notice of the sale,” show the legislative intent of these statutes to be to provide due process to interested parties before the sale goes through. The state interest addressed by these statutes (ensuring due process to interested parties) is nullified when all interested parties consent to the sale.
The statutes then cover the procedure necessary to show the personal representative has no personal interest in the sale, including reporting his proceeding to the court and allowing for examination.[12] If on examination, the court finds the sale was unfairly conducted, or the land was sold for greatly less than its real value, then the court may vacate the sale in whole or in part, or if it appears to the court the sureties taken on the notes or bonds of the purchaser or the securities given are insufficient the sale must not be confirmed until the security for the purchase money satisfies the court, if not resolved in 10 days the sake must be vacated as to the purchaser who’s security is deficient.[13] If the sale is vacated “the court MUST [emphasis added] direct another sale to be had, which must be advertised and conducted in ALL RESPECTS AS IS PROVIDED FOR THE SALE OF LANDS UNDER THE PROVISIONS OF THIS DIVISION [emphasis added].” [14] Upon the satisfaction of the court that the sale was fair, the land was sold for not greatly less than its value, and the purchase money is paid, the court must make an order confirming the sale after 10 days from the report of the sale being filed.[15]
These statutes under Division 1 of Article 17 operate as a whole for the purposes of directing the probate court on the notice, hearing, and evidentiary requirements of showing that a sale for debt or division is necessary. The process can be divided into three phases: 1) petition, hearing, and advertisement of the sale, 2) personal representative’s report and the court’s examination of that report, and 3) the court’s confirmation of the sale and order for conveyance.[16] Montgomery Probate Judge J. C. Love, III, and Professor John Craft of Jones School of Law writing about this Division 1 of Article 17 state, “The procedures for the sale of lands, whether for the payment of debts, or for division, or for the payment legacies, track closely. The statutes prescribe in detail each step of the process. However, if all the heirs or devisees consent to the sale of the property, there will not be as many procedural hurdles to clear. Moreover, the court has the power to authorize a private sale of real property pursuant to Alabama Code Section 43-2-844(1).” This theme of consent simplifying the procedural hurdles can be seen throughout the Alabama Probate Code, such as Ala. Code § 43-2-506 allowing for the bypassing of the notice, publication, and posting requirements mandated by Ala. Code § 43-2-505 when no such unanimous consent is present.[17] Moreover, the requirements of Ala. Code § 43-2-445 are nearly identical to the procedural requirements of Ala. Code § 43-2-505.[18]
Alabama Probate procedure largely follows the suggestions of the Uniform Probate Code (“UPC”),[19] and is intended “[t]o simplify and clarify the law concerning the affairs of decedents.”[20] Ala. Code § 43-2-843 and Ala. Code § 43-2-844 lay out the powers and duties of a personal representative. The Alabama Supreme Court laid out the legislative history behind these two statutes, stating,
[I]n regard to the history behind § 43–2–844, that section references seven actions of a personal representative that require “prior court approval.” Section 43–2–844 thereby stands in contrast to § 43–2–843, Ala. Code 1975, which authorizes a personal representative to take numerous actions without prior court approval. In addition, § 43–2–843 is substantially a verbatim adoption of § 3–715 of the Uniform Probate Code, with one glaring exception: Under § 3–715, the seven items enumerated in § 43–2–844 are included in the list of actions a personal representative may take without obtaining prior court approval. In other words, the Alabama Legislature clearly acted purposefully in departing from § 3–715, a proposed uniform law, when it required “prior court approval” for the actions listed in § 43–2–844.[21]
Further, Ala. Code § 43-2-844(6) is a verbatim adoption of the language of Section 3-715(23) of the UPC.[22] This variation from the UPC shows a clear legislative intent for increased judicial oversight of the seven enumerated actions in § 844, including the sale of land. While the removal shows this legislative intent, it shows no similar legislative intent to require a 30-day waiting period and a hearing, as is required by Ala. Code § 43-2-445 when the sale is for the payment of debt or division. Moreover, the exclusion of any 30-day waiting requirement and a hearing requirement from § 43-2-844 and the inclusion of such requirements in §43-2-445 further shows a lack of legislative intent to require the court to follow these procedural requirements.
[1] See Schlumph v. D’Olive, 203 So.3d 57, 61 (Ala. 2016); Self v. Roper, 689 So.2d 139, 141 (Ala. Civ. App. 1996) (“[Sections 43–2–442 through –444] allow a personal representative to bring a sale of lands for division “for the payment of debts.”); Ruf v. Ruf, 769 So.2d 923, 928 (Ala. Civ. App. 1999) (“[Sections 43–2–442 through –444] allow the personal representative to bring an action for a sale of lands for a division of the proceeds, for the payment of debts.”); Ladewig v. Estate of Arnold, 694 So.2d 25, 26 (Ala. Civ. App. 1997) (Holding statutes under Title 43, Chapter 2, Article 17, Division 1 do not apply to private sales but apply when a personal representative petitions the court for the sale of real property for the purposes of debt or for division).
[2] Judge J. C. Love, III & John Craft, Alabama Probate and Estate Administration § 4.28 (“The procedures for the sale of lands, whether for the payment of debts, or for division, or for the payment legacies, track closely. The statutes prescribe in detail each step of the process.”) (2025).
[3] Ala. Code § 43-2-442 (1975).
[4] Id. § 43-2-443.
[5] Id. § 43-2-444.
[6] Id.
[7] Id. § 43-2-445.
[8] See id.
[9] See id.
[10] Id.
[11] Ala. Code § 43-2-455 (1975).
[12] Id. § 43-2-459; Ala. Code § 43-2-460 (1975).
[13] Ala. Code § 43-2-461 (1975).
[14] Id.
[15] Id. § 43-2-462.
[16] Judge J. C. Love, III & John Craft, Alabama Probate and Estate Administration § 4.28 (2025).
[17] Ala. Code § 43-2-505 (1975); Ala. Code § 43-2-506 (1975).
[18] See Ala. Code § 43-2-445 (1975); Ala. Code § 43-2-505 (1975).
[19] Hellums v. Reinhardt, 567 So.2d 274, 277 (Ala. 1990) (“Alabama’s current probate code was derived from the Uniform Probate Code (‘UPC’) drafted by the National Conference of Commissioners on Uniform State Laws. The statutes contained in those chapters are to be liberally construed and applied so that their underlying purposes and policies can be achieved.” (citing Ala. Code 1975, § 43–8–2(a))).
[20] Ala. Code § 43-8-2 (1975).
[21] Wehle v. Bradley, 195 So. 3d 928, 941 (Ala. 2015).
[22] See Ala. Code § 43-2-844(6) (1975); see Unif. Prob. Code § 3-715.