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Quite often, the situation arises in which an individual is left to deal with a particular home or piece of property that that has been in their family for quite some time. Maybe the deed is still in a parent or grandparent's name. This can cause issues when it comes to selling the property. This can be complicated if there are siblings involved who under the law, have a legal ownership interest in the property.

Although the probate process can help transfer title of the property into the lawful owner's name, in some circumstances, the property can be legally transferred without having to open a probate estate. This can be done through the use of heirship affidavits that are properly drafted and recorded with the county probate court. This should NOT be done until at least two years after the titleholder passes a
way. This is due to Alabama Code Section 6-2-41 which provides:


Limitations on claims to charge real estate with debts and obligations of decedent.

(a) The real estate of persons dying testate or intestate shall, as against the rights of mortgagees or purchasers for value from the heirs or devisees, be forever discharged from the payment of all legal and equitable debts and obligations unless the persons, including minors and insane persons, owning such debts or benefited by said obligations shall within the time allowed by law, but in no event more than two years from the death of the deceased, file in the probate court of the county where said property is located a verified claim showing the nature and amount of said debts and obligations.


(b) Wherever there has been no executor or administrator appointed, then the person owning said debt or benefited by said obligation must, within three months after filing said claim, cause letters testamentary or of administration to be issued and proceed to subject said land to said debts or obligations.


(c) This section shall not apply to any lien which is expressly created or reserved in any conveyance which may be duly recorded in the probate court or probate office in the county in which the land is situated so as to give notice of said conveyance, nor to any judgments recorded as authorized.

Brennan R. Clifton,

Attorney at Law

Call: 251-299-6308

Mailing Address

30941 Mill Lane, G-238
Spanish Fort, AL 36527

Office Location

11111 Hwy. 31, Suite C
Spanish Fort, AL 36527

(Acts 1915, No. 487, p. 547; Code 1923, §§8953, 8954; Code 1940, T. 7, §§51, 52.)
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