WILLS & ESTATES - THAMES V. THAMES

Thames v. Thames, [Ms. 2140052, Mar. 20, 2015] __ So. 3d __ (Ala. Civ. App. 2015). This opinion contains a significant review of the law regarding who can be appointed as a personal representative of a decedent's estate. The fight was between the decedent's widow and his three children from a prior marriage. His will named Region's Bank as executor and as trustee of a trust to be set up by the will, but Regions Bank declined to serve. One son sought to be appointed administrator, but could not post the necessary bond; the second son did not apply to be appointed administrator; and the daughter, who did apply, was found by the probate court to be a resident of Georgia and thus ineligible to serve as administratrix. The daughter argued that her declaration pursuant to ¤12-13-23, Ala. Code 1975, that she is a resident of Alabama should be dispositive, but the Court holds that that statute applies only to a person who is absent from the state on military duty, for charitable reasons, or for religious reasons. Because the daughter continued to work in Georgia even though she supposedly moved to Alabama for the sake of being appointed administratrix, the probate court did not commit reversible error in rejecting her contention that she was a resident of Alabama. The widow did not present contrary evidence, but the probate court was entitled to judge the daughter's credibility and deny her claim. The daughter argued that because she was a residuary legatee, she should have been appointed personal representative, but the Court of Civil Appeals holds that the disqualification of out-of-state administrators foreclosed this argument. The children also argued that the widow was not a principal legatee under the terms of the will and the facts, but the Court of Civil of Appeals held that this did not matter because the widow was the first in line under the law of descent and distribution and thus the person with priority to serve as personal representative. The children then argued that the widow was unfit due to improvidence, but the Court of Civil Appeals accepted the findings of the probate court that the widow did not fail to properly manage the decedent's property. The children also argued that the failure of the widow to list the significant assets of the estate made her petition insufficient, but the court of civil appeals agrees with the probate court's rejection of this argument - one of the purposes of the appointment of an administrator is to collect the assets and perform a full inventory of the estate, so it would be nonsensical to require the prospective administrator to present a full inventory in their petition. The children then argued that the widow had a conflict of interest with the estate, so the probate court should have appointed an administrator ad litem. The Court of Civil Appeals rejects this argument because the children had not filed any claim against the widow or alleged any specific wrongdoing on her part, so there was no occasion to appoint an administrator ad litem. Finally, the widow did not post a sufficient bond, but the children did not "demonstrate through calculations the alleged insufficiency of the bond."