When someone dies in Alabama without a will, the probate court appoints an administrator rather than an executor. Ala. Code § 43-2-42 sets the order: the surviving spouse first, then the next of kin entitled to share in the estate, then the largest Alabama creditor, then anyone the probate judge appoints.
There is a deadline most families do not know about. Under § 43-2-43(b), someone in the first three tiers who does not apply within 40 days after the death is known is treated as having given up the right.
Executor or administrator — the difference matters
If there is a valid will, it names an executor, and the probate court issues letters testamentary. If there is no will, the court appoints an administrator, and issues letters of administration. Both are called the personal representative under Alabama’s Probate Procedure Act. The powers are similar. The route to getting appointed is not.
The priority list in full
Section 43-2-42(a) says administration “must be granted to some one of the persons hereinafter named, if willing to accept and satisfactory to serve,” in this order:
- The husband or widow
- The next of kin entitled to share in the distribution of the estate
- The largest creditor of the estate residing in this state
- Any other person as the judge of probate may appoint
Section 43-2-42(b) applies to counties with a population of 400,000 or more, or that have an elected county or general administrator. There the order runs: spouse, next of kin, largest in-state creditor, then the county or general administrator, then anyone the judge appoints. Madison County is the one to watch in North Alabama.
Ala. Code § 43-2-42(a)–(b), as amended by Acts 1996, No. 96-744.Two deadlines that catch families out
- Five days after deathLetters of administration cannot be granted until five days after the intestate’s death (§ 43-2-45). Nothing can be rushed through before then.
- Forty days after the death is knownUnder § 43-2-43(b), a person in the first three priority tiers who does not apply within 40 days after the death of the intestate is known “must be held to have relinquished their right to the administration.” Grief moves slower than 40 days. This is the single most common way a family loses control of the process.
If the family waits past 40 days, the next tier can apply — and tier three is the largest creditor of the estate residing in Alabama. A hospital, a nursing home, a bank or a card issuer can petition to administer the estate of the person they are owed money by.
Nothing about that is improper. It is what the statute allows. It is also entirely avoidable.
Ala. Code § 43-2-43(b).Somebody died without a will and you are not sure what to do
The 40-day clock is the part that matters right now. Call the Athens office and we will tell you where you stand and what has to be filed.
Who inherits when there is no will
Being appointed administrator does not mean you inherit. Alabama’s intestacy statutes decide that, and they do not always match what families expect.
| Situation | What the spouse receives |
|---|---|
| No surviving issue and no surviving parent | The entire intestate estate |
| No surviving issue, but a surviving parent or parents | The first $100,000 in value, plus one-half of the balance |
| Surviving issue, all of whom are also issue of the surviving spouse | The first $50,000 in value, plus one-half of the balance |
| Surviving issue, one or more of whom are not issue of the surviving spouse | One-half of the intestate estate |
The $100,000 and $50,000 thresholds in § 43-8-41 have not changed since Alabama adopted the provision in 1982. They are not adjusted for inflation. A surviving spouse in a blended family in 2026 can end up with far less than the family assumed.
Ala. Code § 43-8-41 (Acts 1982, No. 82-399).Whatever does not pass to the spouse goes under § 43-8-42: to the decedent’s issue; if none, to the parents; if none, to the issue of the parents; if none, half to the paternal grandparents or their issue and half to the maternal side.
What the administrator has to do once appointed
- Post bondUnder § 43-2-851(a) the court must require bond, generally in the amount of the estate property plus one year of estimated income. With no will there is no bond waiver clause, so this usually applies — one of several reasons intestate estates cost more.
- Publish notice to creditorsWithin 30 days of the grant of letters (§ 43-2-60), running once a week for three successive weeks in a newspaper of general circulation in the county (§ 43-2-61).
- Mail actual noticeSection 43-2-61 also requires first-class mail notice to all creditors known or reasonably ascertainable within six months of the grant of letters. Skipping this is how estates get reopened.
- Handle claimsClaims must be presented within six months of the grant of letters or five months from first publication, whichever is later (§ 43-2-350). Claims not presented are forever barred.
- Get court approval where requiredUnder § 43-2-844 a personal representative needs prior court approval to sell, mortgage or lease estate property, to enter a lease longer than one year, and even to pay their own compensation.
- Account and distributeSettle the accounts and distribute what remains according to §§ 43-8-41 and 43-8-42.
Can more than one person serve?
Yes, co-administrators are possible, and families sometimes want it so no one feels shut out. It is worth thinking through first. Co-fiduciaries generally have to act together, which slows everything down and multiplies the paperwork. Where a family is already tense, it can turn an eight-month estate into a two-year one.
How to avoid all of this
A valid Alabama will does three things this process cannot. It names who serves. It can waive bond by express provision under § 43-2-851(c). And it decides who inherits rather than leaving it to § 43-8-41.
Alabama requires a will to be in writing, signed by the testator, and signed by at least two witnesses (§ 43-8-131). Alabama does not recognize handwritten unwitnessed wills made in this state. Adding a self-proving affidavit under § 43-8-132 means the will can be probated without tracking down the witnesses years later.
Common questions about intestate estates in Alabama
What is the difference between an executor and an administrator in Alabama?
An executor is named in a will and receives letters testamentary. An administrator is appointed by the court when there is no will, or no valid nomination, and receives letters of administration. Alabama calls both the personal representative.
Can an out-of-state relative be the administrator of an Alabama estate?
Section 43-2-42 does not by its terms exclude non-residents from the first two tiers, but the court must still find the person “satisfactory to serve,” and bonding a non-resident fiduciary can be more difficult. Note that tier three is specifically limited to the largest creditor “residing in this state.” If you are out of state and want to serve, get advice before filing.
What happens if nobody applies to administer the estate?
The property stays titled in the deceased person’s name. It cannot be sold or mortgaged cleanly, and each passing year adds heirs. This is how Alabama accumulated so much heir property. It is far cheaper to open the estate now than for the next generation to clear the title.
Does the administrator get paid?
A personal representative may be compensated, but under § 43-2-844 paying the personal representative’s compensation requires prior court approval. It is not something you can simply take from the account.
How long do I have to open an estate in Alabama?
For the priority right, 40 days after the death is known (§ 43-2-43(b)). Separately, Alabama has an outer limit on granting administration long after death. If time has already passed, do not assume it is too late — but do not assume it is fine either. Get it looked at.
Does the surviving spouse automatically get everything?
No. Only where there is no surviving issue and no surviving parent. In every other case § 43-8-41 splits the estate. In a blended family the spouse takes one-half and the decedent’s children from a prior relationship take the rest.
If the 40 days are running, call today
We open and administer intestate estates across Limestone, Madison, Morgan and the surrounding counties. A short conversation will tell you whether the clock is a problem and what has to be filed.
Daniel Shawn Pickens
Attorney at Daniel S. Pickens Law in Athens, Alabama. The firm handles estate planning, probate, real estate closings and title work, deeds, business formation and contracts for families and businesses across Limestone, Madison, Morgan, Lauderdale, Colbert, Franklin and Lawrence Counties.
Questions about estate planning or probate? Email estateplanning@dsp.law or call 256-434-1678.
Daniel S. Pickens Law · 300 West Green Street, Athens, Alabama 35611
