Estate & Probate Administration in Alabama: What You Need to Know
Including Your Rights to a Will Before Probate

Do You Have a Right to See a Will Before Probate? A common question we hear—especially from surviving spouses—is whether you are entitled to a copy of a loved one’s will before it is filed with the probate court.

The short answer: not automatically.
Under Alabama law, there is no specific statute that grants an “interested person” (including a widow) the right to receive a copy of a will before probate is opened. However, the law does provide an important protection:
  • Alabama Code § 43-8-161 requires that any person who has custody of a deceased person’s will must deliver it to someone who can probate it.
This means:
  • You may not be entitled to a copy immediately,
  • But you can take legal steps to ensure the will is produced.
Once the will is filed with the probate court, it becomes a public record, and you can obtain a copy directly from the court. If someone is withholding a will, such as a stepchild, attorney, or family friend, then an interested party—such as a surviving spouse—can petition the probate court to compel its production or initiate probate proceedings.
 
Where Can an Estate Be Opened?
In Alabama, venue for probate is typically proper in the county where the decedent resided at the time of death. However, there is an important alternative:
  • Under Alabama Code § 43-2-40, if the decedent was not an inhabitant of Alabama at the time of death, probate may be opened in any county where the decedent owned property.
  • Additionally, under Alabama Code § 43-2-40, if the decedent is an Alabama resident and the decedent has been deceased for more than three (3) months, administration may be granted in a county where the decedent owned assets, even if that was not their county of residence, if there are no assets subject to administration in the county of his or her residence. 
Key caveats:
  • The three-month provision is often used when no one has opened an estate in the county of residence
  • Priority may still be given to the county of residence if proceedings are initiated there
  • Competing administrations can create jurisdictional disputes, so timing matters
  • Courts generally seek to avoid multiple administrations, so the first properly filed petition may control
This provision can be especially important in situations involving:
  • Out-of-state decedents
  • Delayed probate filings
  • Disputes among heirs about where to open the estate
 
Intestate Estates (No Will)
When a person passes away without a valid will, their estate is considered intestate, and Alabama law determines how assets are distributed.
To begin the process:
  • A petition for Letters of Administration is filed with the probate court
  • The petition typically includes:
    • The decedent’s name and date of death
    • County of residence
    • Names of the surviving spouse and next of kin
Under Alabama Code § 43-2-45, the court cannot issue Letters of Administration until at least five (5) days after death.
Additional requirements include:
  • A certified death certificate
  • An administrator’s bond (required under Alabama Code § 43-2-851)
Once the court reviews and approves the filing, it appoints an administrator to manage the estate.
 
Testate Estates (With a Will)
When a person dies with a will, the estate goes through testate probate.
Key points include:
  • A will can only be probated after the testator’s death
  • The will must be filed within five (5) years of death under Alabama Code § 43-8-161
  • The probate petition usually is to be filed in the county where the decedent lived (subject to the venue rules discussed above)
Who can initiate probate?
  • The named executor
  • A beneficiary (devisee or legatee)
  • Anyone in possession of the will
  • Creditors, under certain restrictions
Required filings typically include:
  • The original will
  • A certified death certificate
If the original will is unavailable, Alabama law may allow probate of a copy if a witness can testify to its contents. Once approved, the court issues Letters Testamentary, granting authority to the executor.
 
Insolvent Estates
An estate is considered insolvent when its debts exceed its assets.
In these cases:
  • Estate property may be sold to pay creditors
  • Debts are paid in a statutory order of priority under Alabama Code § 43-2-371
  • Creditors file claims after notice of insolvency
The personal representative must file a report with the court, and a hearing is scheduled. If no objections are raised, the court may formally declare the estate insolvent.
 
Small Estates & Summary Distribution
For smaller estates, Alabama offers a simplified process called summary distribution. This option may be available when:
  • The estate’s total value does not exceed $47,000 (current statutory threshold, subject to periodic adjustment)
  • The petitioner is a surviving spouse or rightful heir
  • No other probate proceedings are pending
  • Funeral expenses and debts have been paid or arrangements have been made
This streamlined process allows for distribution of assets without a full probate administration, saving time and expense.
 
Final Thoughts
Probate in Alabama can vary significantly depending on whether there is a will, the size of the estate, and whether disputes arise.
Two important takeaways:
  • While you may not have an automatic right to a copy of a will before probate, Alabama law ensures that a will cannot be withheld indefinitely
  • Alabama’s venue rules—including the ability to open an estate where real property is located after three months—can significantly impact strategy in contested or delayed estates
Understanding these rules early can help protect your rights and avoid unnecessary delays.
 
Contact Us
If you have questions about probate, wills, or your rights as a surviving spouse or beneficiary, we’re here to help. Call us today at (205) 319-9995 to discuss your situation.
 
Disclaimer
The information provided in this article is for general informational purposes only and is not intended as legal advice. Laws change frequently, and the application of law depends on the specific facts of each case. You should consult with a qualified attorney regarding your individual situation. Viewing this content or contacting our firm does not create an attorney-client relationship.​
​Probate & Elder Law