Section 43-8-216 - Removal(a) Except for a proceeding pending in a probate court in a county where the probate court or judge exercises equity jurisdiction concurrent with that of the circuit court by virtue of a provision of the Constitution of Alabama of 1901, specific to such county, a local act, or a statute specific to such county, a proceeding in a probate court pertaining to a will contest or an administration of a decedent's estate may be removed by an interested person to the circuit court for the county where the proceeding in probate court is pending; provided, however: (i) no removal of a will contest can occur unless Section 43-8-215 is complied with; and (ii) a removal of the administration of a decedent's estate may not be made prior to the issuance of letters testamentary, letters of administration, or letters of administration with the will annexed or after the probate court has taken steps toward a final settlement.(b) To remove a proceeding from the probate court to the circuit court, the removing party shall file in the circuit court to which the proceeding is being removed, a notice of removal which must set forth or contain all of the following: (1) A description of the nature of the proceedings being removed.(2) If the proceeding is a will contest under this division, the name of the person who has petitioned to admit the will to probate, who will be the plaintiff in the removed proceeding, and the person contesting the validity of the will, who will be the defendant in the removed proceeding.(3) Whether jury trial is demanded.(4) The removing party's interest in the proceeding being removed.(5) The name of all interested persons to the proceeding being removed to which the removing party is delivering the notice of removal.(c) Once the removing party has filed the notice of removal with the clerk of the circuit court, the proceeding shall be removed to the circuit court. Following the removal to the circuit court, the removing party shall file a copy of the notice of removal with the clerk of the probate court and shall send a copy of the notice of removal to all interested persons listed therein. Upon receiving a copy of the notice of removal the probate court shall take no further action, unless and until the removed proceeding is remanded, except to deliver a copy of the record in the probate court to the clerk of the circuit court. The circuit court shall have jurisdiction of a proceeding removed upon filing of the notice of removal with the circuit clerk. Neither the omission nor incorrect statement of any information required to be included in the notice of removal, nor the failure of the probate court to deliver a copy of the record of proceedings in that court shall deprive the circuit court of jurisdiction to hear and decide the removed proceeding.(d) If a necessary party to the proceedings has not received notice of the proceeding as required by law before the notice of removal is filed, notice of the proceeding must be issued by the circuit court to such necessary party as provided in the Alabama Rules of Civil Procedure or as otherwise prescribed by law.(e) The circuit court may remand the proceeding removed under this section to the probate court if the circuit court finds any of the following: (1) The removal was sought for the purpose of improper delay.(2) The removal did not comply with applicable law.(3) Judgment on all contested matters pending before the circuit court has become final and the time for an appeal has expired without an appeal being filed or, if an appeal was filed, after the final adjudication of the appeal.(4) All interested parties or their representatives have requested the removed proceeding be remanded to probate court.(f) If the circuit court finds that a lawyer or party vexatiously or for improper purposes removed a proceeding, then the court may tax the lawyer or party with the costs of the proceeding. In doing so, the circuit court may assess the full amount or any portion of the costs against any offending lawyer or party, or both, and among them, as the court determines just. When granting an award of costs and lawyer fees, the court shall specifically state the reasons for the award and shall consider the factors in Section 12-19-273, among others, in determining whether to assess lawyer fees and costs and the amount to be assessed.(g) Costs of an action that may be assessed under subsection (f) include reasonable compensation for and expenses incurred by a lawyer, guardian ad litem, or party, including the cost of experts to testify in or advise regarding the proceeding. Costs taxed under this subsection shall be limited to those incurred by the parties opposing an improperly removed proceeding or incurred as a result of the improperly removed proceeding.(h) Upon entry of an order taxing costs under subsection (f), the clerk of the circuit court shall issue an itemized bill of all costs and expenses taxed against each person, which itemized statements of costs and expenses shall have the full force and effect of a judgment. The provisions of this subsection are cumulative.(i) Following remand by the circuit court, the clerk of the circuit court shall deliver a copy of the order of remand and the record of all proceedings in the circuit court to the clerk of the probate court to be filed with the records of the proceeding in the probate court, and the probate court shall proceed with the proceeding in accordance with the circuit court's order.(j) In any proceeding removed from a probate court, the circuit court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the probate court or otherwise.(k) Neither remand nor anything else shall prevent the subsequent removal of a proceeding to the circuit court under this section.Ala. Code § 43-8-216 (1975)
Added by Act 2022-427,§ 1, eff. 4/14/2022.