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Removal of Administrator – Notice Regarding Final Settlement of Estate

Brooks v. Svenby, [Ms. 1190405 and 1191037, May 28, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Mitchell, J.; Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ., concur; Sellers, J., concurs in the result) reverses the Autauga Circuit Court’s order removing attorney Louis Colley as administrator of the Estate of Dorothy Clare and subsequent order granting a final settlement of the estate. The Probate Court had declined to appoint the decedent’s son, Chad Svenby, because shortly before her death Clare had been removed from Chad’s care due to allegations of elder abuse. Ms. **3-4. The Probate Court then appointed attorney Colley as administrator CTA pursuant to § 43-2-27, Ala. Code 1975. Ms. *4. Following Svenby’s removal of the administration to circuit court, the circuit court removed Colley and appointed Svenby as administrator and subsequently granted Svenby’s motion to enter a final settlement of the estate. Ms. *6.

The Court first explains that to the extent Svenby sought to appeal to circuit court the probate court’s order refusing to appoint him executor of the estate, his appeal was untimely because “Section 12-22-21(2) [Ala. Code 1975] clearly states that a party whose application to serve as executor is denied ‘by reason of improvidence’ must file an appeal to the circuit court within seven days.” Ms. *9.

Citing Ex parte Holladay, 466 So. 2d 956, 959-60 (Ala. 1985) for the proposition that “Alabama law provides for the removal of an administrator only upon proof of one or more of those grounds for removal stated in § 43-2-290 [Ala. Code 1975),” the Court reverses the order removing Colley as administrator. Ms. *11. The Court explains that rather than challenging Colley’s appointment on one of the § 43-2-290 grounds, “Svenby simply argued to the circuit court that he should replace Colley as personal representative because Clare’s will nominated him as executor.” Ms. **11-12.

Finally, the Court notes that even if Svenby had been properly appointed administrator, the circuit court’s order approving the final settlement was improper because Svenby failed to file a statement of account with supporting documents as required by § 43-2-502, Ala. Code 1975, Ms. *15, and because the circuit court entered the order approving the final settlement without providing interested parties notice and an opportunity to be heard in opposition to the final settlement. Ms. *16.

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