ATTORNEYS


 

Probate & Property Articles

 

The following articles were printed in the March/April 2017 issue of the Probate & Property magazine published by the American Bar Association’s Real Property, Trust and Estate Law Section.  I thought they might be of interest to you.

New IRS Release of Estate Tax Lien Requirements

Gun Trusts - What’s All The Fuss?

Don Davis, Judge of Probate



 

Small Estate Summary Distributions Amount

 

Please be advised that the State Department of Finance has increased the maximum amount/value for small estate administration (summary distributions) to $28,417 for 2017.

Thanks,

Don Davis, Judge of Probate


Benchmark WEB Update - 02/01/17

An update to Benchmark WEB launched on 02/01/17.  This update resolves compatibility issues with Internet Explorer and addresses a number of other site issues; namely, (a) printing the Docket Sheet Report for a case, (b) running the Print Summary on a case, and (c) paying cost bills online.  Users who access Benchmark WEB using Internet Explorer (IE) will need to modify IE's compatibility view settings by performing the steps noted below in order to properly view the site.

Adjusting Compatibility View Settings in Internet Explorer

  • Open Internet Explorer > Click on Tools > click on Compatibility View settings > REMOVE the entry for mobilecountyal.gov > Choose Close

You may need to restart IE once these changes have been made.  This applies to Internet Explorer ONLY.  Chrome and Firefox browsers run without issue. 

Technical/computer-related, non-Judicial questions may be directed to the Court's IT Division via email at:  helpdesk@probate.mobilecountyal.gov or by phone at: (251) 574-6091.


Alabama Lawyer Article

Click here to read the article entitled: "Representation of an Estate and Client Identity" from the September 2016 issue of The Alabama Lawyer.


Changes to the Alabama Rules of Civil Procedure Effective July 1, 2016

Note:  The excerpt below is from the Alabama State Bar's Addendum Issue; April 2016

In two separate orders, the Alabama Supreme Court has amended Rule 4, "Process: General and Miscellaneous Provisions;' and Rule 45(b)(1), Alabama Rules of Civil Procedure. The amendment of these rules is effective July 1, 2016. The orders amending Rules 4 and 45(b)(1) appear in an advance sheet of Southern Reporter dated on or about March 3, 2016. The amendment to Rule 4 makes certain changes to service of process, including, among others, providing that a judgment of default is a possible consequence of a served defendant's failure to respond rather than an automatic result; changing the age of a minor who must be served personally, including an incarcerated minor, from over the age of 12 years to over the age of 16 years; stating the manner for acceptance or waiver of service of process; increasing the age of persons designated to serve process to 19 years and providing that persons designated to serve process not be related within the third degree by blood or marriage to the party seeking service of process; setting out new, specific requirements as to how service of process and the return of service is to be made; and increasing to 60 days the timeframe for failure of service. The amendment to Rule 45(b)(1) increases to 19 years the age at which a person can serve a subpoena and to further provide that such person shall not be related within the third degree by blood or marriage to the person seeking service. The text of these rules can be found at http://www.judicial.state.al.us, "Quick Links-Rule Changes:' -Bilee Cauley, reporter of decisions, Alabama Appellate Courts


Abolishment Of Common Law Marriage In Alabama Effective January 1, 2017

Please note that the Alabama Legislative enacted Ala. Act 2016-306 which abolishes common law marriage in the State of Alabama prospectively on January 1, 2017.  Any "otherwise valid common-law marriage entered into before January 1, 2017 , shall continue to be valid in this state." 

Click here for a link to said Act.



Notice of Changes in Probate Court Effective April 1, 2016

Attorneys practicing before the Probate Court of Mobile County are hereby given notice of the following changes in various procedures effective April 1, 2016.  Attorneys should note these changes and coordinate appropriate actions to comply with each with their clients.  Should there be any questions, please do not hesitate to contact the Court.

To review the list of changes, please click here:  NOTICE OF CHANGES

Don Davis, Judge of Probate



eFiling in Judicial

The Probate Court of Mobile County is pleased to announce that EFFECTIVE JANUARY 4, 2016, LAWYERS will be able to file certain judicial pleadings in the Court through electronic means.  To eFile, please visit the Court's BENCHMARK WEB portal, login with your attorney-access account credentials, and follow the screen prompts in the "e-File " portion of the Benchmark Web interface.

Should you have any issues, please contact the Court as noted below:

Technical/computer-related, non-Judicial questions may be directed to the Court's IT Division via email at:  helpdesk@probate.mobilecountyal.gov or by phone at: (251) 574-6091.

Judicial-related questions, pleading-specific matters and all other non-technical, non-computer related inquiries should be directed to the Court's Judicial Division.  They may be contacted by phone via the Court's switchboard at: (251) 574-6001.


 

Credit Card Service for Judicial Court Costs

Effective, December 7th, 2015, court costs may be paid by credit card at the service/intake window on the first floor of the Mobile County Government Center Annex. Please note that there will be a 3.5% credit card fee added for each transaction.

Effective January 20th, 2016, you may now pay court costs by telephone at 1-855-436-6812. When paying by phone, please note that a 5% fee will be assessed in addition to the court cost amount.

Effective January 21st, 2016, you may pay court costs online through the Court's Benchmark WEB site.  Instructions for paying judicial court costs online are detailed below:

F
rom the Probate Court website, http://probate.mobilecountyal.gov, navigate to the Judicial tab located on the site menu on the left side of the home page. Once you have the Judicial page open, click on the option to search the “Court Case/Calendar/Parties/Attorneys - Benchmark Web” link. This action will take you to the Court’s Benchmark WEB site, where all Judicial-related information can be found. Please note that you are required to register for site access upon your first visit. Once you have registered (or if you have previously registered), simply login using your email address and password.

To make an online payment: Search for the case number using the Case Search function and the correct case format, example: 2015-0515. Open the case to review the file. If there are any outstanding fees on the case, a green “PAY Online” button will appear in the case summary section. Click on the “PAY Online” button to begin the payment transaction. The payment window will open and display a list of the outstanding bills in the case. Please note that you must select the bill you wish to pay, even if there is only one bill shown on the screen. Once you have selected the bill you wish to pay, you will be prompted to provide valid Name and Credit Card information. Follow the prompts on the screen to complete the payment process and submit your payment once all information has been entered. Upon completion of this step, the transaction will be verified and a receipt will be displayed for you to print for your records.

NOTE:  Credit Card payments can only be made once a case AND cost bill have been created by the Judicial Division.


 

NOTICE OF ABILITY OF LAWYERS TO FILE CERTAIN JUDICIAL PLEADINGS ELECTRONICALLY IN THE PROBATE COURT OF MOBILE COUNTY AND NOTICE OF TRAINING OPPORTUNITIES

On June 23, 2015 the Supreme Court of Alabama entered an order authorizing a group of Alabama probate courts to serve as participants in a test - pilot program that would permit the electronic filing of judicial pleadings in Alabama probate courts.  Mobile County was one of the designated participants in this program.

The Probate Court of Mobile County is pleased to announce that EFFECTIVE JANUARY 4, 2016, LAWYERS will be able to file certain judicial pleadings in the Court through electronic means.

Rules approved by AOC pursuant to the Administrative Order of the Alabama Supreme Court dated June 23, 2015 regarding e-filing of pleadings in certain probate courts may be found below.

 Mobile County eFiling Administrative Policies and Procedures

Technical/computer-related, non-Judicial questions may be directed to the Court's IT Division via email at:  helpdesk@probate.mobilecountyal.gov or by phone at: (251) 574-6091.

Judicial-related questions, pleading-specific matters and all other non-technical, non-computer related inquiries should be directed to the Court's Judicial Division.  They may be contacted by phone via the Court's switchboard at: (251) 574-6001.

Don Davis, Judge of Probate


 CLAIMING EXEMPTIONS AND ALLOWANCES PRIOR TO ADMINISTRATION

Friends,

You will recall that certain family members of a decedent can claim exemptions and allowances prior to (and practically speaking in lieu of) the commencement of an estate administration proceeding.  The Alabama Legislature increased the amounts that can be claimed exempt.  We have updated the form requesting exemptions and allowances.  The revised form is now included in the Court’s form bank.  If you have any  questions concerning this, please contact Stacie Vitello, Judicial Division Chief.

Don Davis, Judge of Probate


 

NOTICE TO LAWYERS OF RECENT ALABAMA APPELLATE DECISION REGARDING SERVICE OF PROCESS BY PUBLICATION

Friends,

As a result of Duane Graham’s research (printed in the December 2015 issue of the Mobile Bar Bulletin, I became informed  of the Alabama Court of Civil Appeals’ decision dated July 10, 2015 entitled Lovell v. Costigan (docket number 2140522). This appellate decision caught my attention because we have NUMEROUS requests for service by publication when an effort to serve by the Sheriff’s Dept and/or U. S. Certified Mail has failed.  Prior to today – when we receive a motion for service by publication and the necessary affidavit is attached – we processed it and once we received proof of publication  - we entered in the appropriate docket that service on the person in question was perfected.  Heretofore, our clerks have NOT been reading the affidavits submitted in support of publication requests as to content.  If you aren’t familiar with the  Lovell case – I encourage you to become familiar with it quickly.  None of us want to have situations to arise where the Court’s rulings are later declared null and void because of the lack of service on an interested parties – for obvious reasons.

The  Lovell  case arose out of the Baldwin County Circuit Court – but would have application to all Alabama trial courts – including Alabama probate courts where service of process must be perfected upon a party in interest.  In this case an effort to serve a defendant by United States Certified Mail, Return Receipt Requested FAILED with the Postal Service noting “FORWARDING ORDER EXPIRED”.  The Circuit Court’s docket sheet also reflected that personal service FAILED with the notation “return not found”.  Thereafter, the plaintiff’s lawyer filed an affidavit in support of a motion for service by publication.  In the affidavit, the plaintiff’s lawyer stated in pertinent part as follows:

“The address used [to attempt to serve the defendant] was the only address known by [the plaintiff] and it was the last one used in correspondence to [the defendant].  In the ensuing months, attempts have been made to ascertain [the defendant’s] place of residence through telephone and internet.  It is known that [the defendant] still lives in this area.”

 The Baldwin County Circuit Court issued a default judgment against the defendant after service by publication was deemed to have been perfected IN 2006.  IN MARCH 2015 (note the time lapse) , the Defendant filed a motion to set aside the default judgment for failure to properly serve him and argued that in the absence of proper service of process, the Baldwin County Circuit Court never obtained personal jurisdiction over the Defendant.  The Baldwin County Circuit Court denied the motion and an appeal was made.

The Alabama Court of Civil Appeals AGREED WITH THE DEFENDANT and declared the Baldwin County Circuit Court judgment VOID and ordered that the judgment be VACATED.  The Court of Civil Appeals stated that the above quoted language from the plaintiff’s lawyer’s affidavit did NOT show that the defendant was avoiding service.

In support of its ruling the Court of Civil Appeals noted that in Wagner v. White, 985 So.2d 458 (Ala.Civ.App. 2007), the Court held that the fact that a defendant had changed residences twice and the plaintiff’s inability to serve the plaintiff because of the moves did NOT constitute avoidance of service.  The Lovell  Court stated:

“in the present case … [the plaintiff’s] attorney’s affidavit states that he attempted to serve [the defendant] with process at [the defendant’s] only known address and that he had made attempts to ascertain [the defendant’s] residence via telephone and the Internet.  It may be, thought we cannot know with certainty, that [the plaintiff’s] attorney … went to great lengths to locate [the defendant].  However, even if he did, there is simply no allegation that Lovell attempted to avoid  service of process, nor are there any facts set forth in [the plaintiff’s] attorney’s affidavit that would support such a finding.  Our caselaw and Rule 4.3 are clear that an affidavit submitted in support of a motion requesting service of process by publication must set forth facts showing that the defendant has avoided service (emphasis in opinion – not added).    Service of process by publication is not proper simply because the defendant may be difficult to locate; there must be some element of culpability on the part of the defendant, and that culpability must be shown by facts set forth in an affidavit submitted in support of a motion requesting service of process by publication.”

I would note that in the Adoption Code  there is a notice statute that addresses service by publication.  It is a little different from the procedure outlined in the Alabama Rules of Civil Procedure.

 EFFECTIVE IMMEDIATELY:   

1.       The Judicial Division Clerk’s Office will be reviewing all affidavits submitted in support of a motion to serve by publication  to insure compliance with Lovell. 

2.       If a clerk does not believe a submitted affidavit complies with the Lovell decision, it will be forwarded to Stacie Vitello, the Judicial Division Chief (and a lawyer) for review.  If Stacie concurs with said assessment, the lawyer will be notified by United States Mail and/or electronic mail that the affidavit does not support the motion. 

3.       No action will be taken on the motion until an affidavit with the appropriate supporting statements is submitted to the Court.

4.       We have prepared two revised form affidavits.  One is for use in ADOPTION CASES ONLY.  The second one is for use in ALL OTHER CASES.

Notices - Affidavit for Service by Publication - ADOPTIONS

Notices - Affidavit for Service by Publication - ALL OTHER CASES

If you have any questions concerning the aforesaid or the new revised affidavit forms – please contact Stacie Vitello at 251.574.6008 or at svitello@probate.mobilecountyal.gov.

Thanks,

Don Davis



Looking for Judicial Forms?

If you are an attorney and have Attorney Access to Benchmark WEB, you can find the Judicial Forms in the LINKS section of the Benchmark Web portal.  Login to Benchmark WEB by accessing the Court's "Judicial" main page and following the instructions provided there.



Judicial Case File Request Form

Probate Court's Judicial case file copy request procedure has been changed effective 01/02/15.  The Court's Records Division will now process any request for case file information or copies of same.  The link below will provide you with an online request form to easily submit your request to the Court's Records Division supervisors.  Please complete all fields applicable to your request and use the "Submit by e-mail" button to send the completed form.  You will be contacted once your request has been completed with instructions and costs associated with your request.

Copies are $1.00 per page. Certified copies are $2.00 and Acts of Congress are an additional $6.00 added to the total.

                                  Judicial Case File Request Form


Attorney Request Form For Attorney/Vendor Information Change

Please use this substitute W-9 form to make any changes to your attorney/vendor information. Please make sure that you are specific in your remittance information and include your appropriate tax identification number for 1099 purposes. This information will be updated in our computer system and will be used in all departments. The information provided will be used to process future payments and correspondence sent to you or your firm. Please make sure the form is signed.  When any change is needed, you must fill out a new form and send it to rclarke@probate.mobilecountyal.gov  or fax to 251-574-6100.


                                  Attorney Request Form For Attorney/Vendor Information Change

Instructions On Accessing Estate Claims

If the Judicial case in question was opened prior to August 1st, 2013, you must check the Records Search ROAM site and the Court's Judicial Benchmark WEB site.   Claims and or claim cancellations filed in Judicial after August 1st, 2013 will not be viewable online.  Information on viewing claims filed after August 1st, 2013 is noted in point 2c below.

 

1.  For the Records Search ROAM site:

 

a.  Use the “Advanced Search” Field,  enter the Last Name space First Name of the deceased.  Be sure to select the “Contains”  button.  In the “Doc Type” field, select ESTATE CLAIM, and SEARCH.

 

b.  The results displayed will include all estate claims and cancellations for said party that were  recorded prior to August 1st, 2013. 

 

c.  To view each claim and/or cancellation you can click on the “View Image” or “View Details” link.

 

 

2.  For the Judicial Benchmark WEB site:

 

a.   Use the Case Number search option or the Name search option to search claims for a specific party or case number.  You may opt to filter the results by selecting the "Claim Filed" option under the "Causes of Action/Case Type" drop-down.  Either option will load a list of cases for review.   You can review a specific case by clicking on the case number link.

 

b.   In reviewing the summary for a specific case, you will find a CLAIMS section which will include information on any claim or any claim cancellation filed after August 1st, 2013.  “Active” refers to outstanding claims and “Inactive” refers to cancelled claims. 

 

c.    Images for claims and/or claim cancellations filed in the Judicial Division after August 1st, 2013 will not be viewable online.  You will be able to view these in the Court’s Records Room located on the 2nd Floor of the Mobile County Government Center Annex at 151 Government Street in downtown Mobile.

 

If the Judicial case was opened August 1st, 2013 or after, please follow the procedure as outlined in point 2 above.

 


Memorandum To All Lawyers Handling Estate Administration Matters

Friends,

You will recall that approximately two (2) months ago we advised that creditor notices in estate administration cases could no longer be printed in the Press Register because of various unresolved, ongoing problems.  I would like to share with you that the Court’s administrative team met with the leadership of AL.COM and the Press Register last week and based on the presentation made, we are going to give AL.COM and the Press Register another opportunity to publish said notices, with the understanding that if the same problems are encountered, as before, said notices would not be accepted from AL.COM or the Press Register and there wouldn’t be another opportunity to correct the problem.  Notices can also still be printed in the Call News and Mobile Beacon.  The protocol for these publications remains the same as in past years.

AL.COM and the Press Register,  at our request, confirmed their new protocol for processing legal notices from the Court in writing.  The protocol is as follows:

Mobile County Probate legal notices published in the Mobile Press-Register may be submitted via USPS mail or e-mail.

Mailed legal notices should be mailed Att: Mobile Press-Register Legals, 18 South Royal St., Mobile, AL 36602.

Notices emailed should be sent to legals@press-register.com with an inventory list and ads, noting check numbers for each.

 

Process for handling legal notices:

Checks and legal notices will be scanned and logged.

  An email receipt will be sent to the Mobile County Probate Court and the Attorney for the legal notice (if provided) within two (2) business days of receiving.

 

Example of Email Receipt:

TO: Probate Court

CC: [Attorney listed email address]

From: Press-Register Legal Advertisements

[date]

RE: Probate Legal Advertisement submitted – [name] – [date] receipt

Ad received postmark date:

Ad Received date:

[name] Legal Advertisement:

[Ad Copy]

Check Received: [No or Yes and if Yes, will include check No.]

Check date:

Publication dates:

Beginning April 15, 2015, affidavits will be mailed within five (5) business days of final publication.

Mobile Press-Register Legals Team and Contact Information

Primary contact is Christine Bevins: 251-219-5010 and secondary contact is Amanda Phillips: 251-219-5424. The office is 18 Royal Street, Mobile, AL 36602. Christine and Amanda can be reached through legals@press-register.com

Primary Finance contact is Leah Ferguson: 251-219-5421 and Margaret Blossom: 251-219-5420 as a secondary contact. Their office is at 401 N. Water St., Mobile, AL 36602. Leah and Margaret can be reached through legalbilling@acsal.com.

 

Please note: personnel subject to change. For most current information, please visit

http://www.alabamamediagroup.com/wp-content/uploads/2015/03/mobile-probate-ad-process.pdf

If you have any questions concerning the aforesaid, please do not hesitate to contact us.

Thanks,


Don Davis

Judge of Probate





Notice To All Appointed Lawyers Assigned to Mental Health Cases

Please refer to these two attachments for important information concerning the Court’s mental health commitment docket.   If you have any questions, please contact Stacie Vitello at 251.574.6008 or at svitello@probate.mobilecountyal.gov.

 

     Letter to All Appointed Lawyers Regarding PC Docket - Status Report

 

     Schlesinger Letter with Attachments

Thanks,


Don Davis, Judge of Probate

 


 

Recording Division

To view the Real Estate Sales Validation Form or to fill out and download a copy, please click here.