Losing a loved one can be a very difficult time in a person’s life. It can be even that more difficult when that time is plagued by arguments surrounding the validity of a will and where the will contest should be heard.
In McElroy v. McElroy, Tracy McElroy filed a petition to probate the will of Clifton McElroy, Jr. in the Jefferson Probate Court and Tomeka and Marlon McElroy followed up by filing a will contest in probate court, alleging that Clifton’s signature was a forgery.
The issue was whether, pursuant to Ala. Code 1975, § 43-8-190, the will contest should be transferred to the circuit court or remain in probate court.
Tomeka and Marlon argued that the will contest was properly filed in the probate court because Jefferson County gave both probate courts and circuit courts the jurisdiction to decide will contests. Tomeka and Marlon filed motions to keep the contest in probate court. However, the probate court entered an order removing the administration of Clifton’s estate to the circuit court, where the circuit court determined that the signature on the will was valid.
On appeal, the Court explained that wills in Alabama may be contested in two ways. First, under the Alabama Code, a contest may be instituted in the probate court. Alternatively, under the Code, after probate and within six months, a contest may be instituted by filing a complaint in the circuit court of the county where the will was originally probated.
Tomeka and Marlon McElroy properly filed their will contest in probate court. The Court explained that the probate court did not have the proper authority to send administration of the estate to the circuit court. Because the judgment of the circuit court was void, Tomeka and Marlon’s appeal was also dismissed.
It is important to remember that you always have two options if you are contesting a will. You may file your contest in either probate court or circuit court. If you file in probate court, you do so during probate. If you choose to file in circuit court, it must be done within six months after probate and in the same county where the will was probated. Either option is available to you as a party to the will.
The Jefferson County Probate Court overstepped its bounds by improperly imposing jurisdiction where Tomeka and Marlon McElroy properly followed the rules of probate.
If you believe you have a jurisdictional issue in filing a will contest, you should have an experienced, knowledgeable attorney on your side to ensure your rights are protected.
Contact INGRAM LAW LLC at (205) 335-2640 for an attorney with the experience and knowledge that can make all the difference.