(251) 299-0101

REMOVAL OF PROBATE ADMINISTRATION FROM PROBATE TO CIRCUIT COURT: MCELROY V. MCELROY

McElroy v. McElroy, [Ms. 1160394, Dec. 15, 2017] __ So. 3d __ (Ala. 2017). This unanimous decision by Justice Bryan (Stuart, C.J., and Bolin, Murdock, and Main, JJ., concur) dismisses contestants’ appeal from the Jefferson Circuit Court’s order denying their will contest.

The appellants contested their father’s will on the grounds that it was not properly executed. Ms. *2. The contest was filed in the Jefferson Probate Court after the will had been admitted to probate. Ms. *2-3.

While noting that in most instances such a will contest would not properly be filed in probate court, McElroy’s will contest was properly filed in the probate court because Jefferson Probate Court has equity jurisdiction. Ms. *8. However, the Court noted that the Jefferson Circuit Court’s subsequent order denying the will contest on its merits was entered without jurisdiction because the estate had never been properly removed to the circuit court. Quoting Dubose v. Weaver, 68 So. 3d 814 (Ala. 2011), the Court reiterated that “‘the filing of a petition for removal in the circuit court and the entry of an order removal by that court are prerequisites to that court’s acquisition of jurisdiction over the administration of the estate pursuant to § 12-11-41.’” Ms. *11 (emphasis in the original). The Court noted that “there is no indication that any party filed a petition for removal in the circuit court or that the circuit court ever entered an order removing the administration of the estate from the probate court. Under the circumstances of this case, the removal of the administration of the estate was the only ostensible basis the circuit court had for exercising jurisdiction over the appellants’ will contest [that had been filed in probate court].” Ms. *11.

The Court concluded that

[B]ecause the administration of the estate was not properly removed to the circuit court, the circuit [court] never acquired subject matter jurisdiction over the administration of the estate or the impending will contest.

Ibid.
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