Alabama Estate Property: Why Repairs Need a Court Order and Preservation Does Not

Anyone administering estates across the Gulf South will expect Alabama to read like Texas or Louisiana on this point. It does not. Those states impose a duty to repair estate buildings. Alabama puts repairs behind a court order, and leaves the money for protecting and preserving the property authorised without one. The distinction decides what can be done to a vacant Alabama house in the weeks after a death, and it is not intuitive.

Repairs Require Prior Court Approval

Code of Alabama Section 43-2-844 is headed Transactions Authorized for Personal Representatives; Prior Court Approval. It opens: "Unless expressly authorized by the will, a personal representative, only after prior approval of court, may:" and then lists seven categories. The second is the one that matters here — to "make ordinary or extraordinary repairs or alterations in buildings or other structures, demolish any improvements, or raze existing or erect new party walls or buildings."

Ordinary repairs. Not major works, not capital improvements — ordinary repairs sit behind the same requirement as demolition. The first item in the same list captures "manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset," and the sixth captures selling, mortgaging or leasing real property. Leases longer than a year are there too, at item (4).

The phrase doing the most work in that section is the first one: unless expressly authorized by the will. An Alabama will drafted with any care grants the personal representative these powers, and the representative then proceeds without returning to court. Where the will is silent, or where there is no will at all and the administration is intestate, the court order is the route. The first thing to establish on an Alabama estate with a building in it is therefore not the condition of the building — it is what the will says.

Protection and Preservation Are Not Repairs

Running alongside that restriction is a duty to spend. Section 43-2-837 provides that "the personal representative shall pay taxes on, receive the income therefrom, and pay the expenses reasonably necessary for the management, protection, and preservation of, the estate in the possession of the personal representative."

And Section 43-2-843, which lists the transactions a representative may properly undertake without prior court approval, includes three that bear directly on an empty house: to "insure the assets of the estate against damage, loss, and liability"; to "borrow money without security or with security of personal property to be repaid from the estate assets or otherwise; and advance money for the protection of the estate"; and to "pay taxes, assessments, and other expenses incident to the administration of the estate." The section also allows the representative to employ necessary persons and agents.

So the structure is: money to protect and preserve, yes, without an order. Insurance, yes. Borrowing and advancing funds for protection, yes. Repairs and alterations to the building, no — not without the will or the court. Precisely where a given piece of work falls between protecting a building and repairing it is a judgment for counsel on the facts, and a prudent representative asks before assuming. Securing an opening against entry and cutting grass that has drawn a municipal citation are naturally read as protection; replacing a roof is a repair whatever the reason for it.

The Possession Question Comes First

Before any of that, Alabama asks a question the other two states largely do not. Section 43-2-837 gives every personal representative, except as otherwise provided by the will, a right to and a duty to take possession or control of the decedent's property — "except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration."

Real property is carved out of the automatic rule. The representative decides. And because the duty to fund management, protection and preservation in the same section is limited to "the estate in the possession of the personal representative," that decision carries the cost with it. Leaving an occupied house with the heir living in it is a different posture from taking possession of an empty one.

Where the representative does need the property back, the section supplies an unusually strong tool: "A request in writing by a personal representative for delivery of any property possessed by an heir or devisee is conclusive evidence, in any action against the heir or devisee for possession thereof, that the possession of the property by the personal representative is necessary for purposes of administration." Conclusive evidence, from a written request. The representative may also maintain an action to recover possession or to determine title.

Broad Power, With Two Named Limits

Section 43-2-839 sets the general rule: "Until termination of the appointment, a personal representative has the same power over the title to property of the estate, subject to Sections 43-2-843 and 43-2-844, that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate. This power may be exercised without notice, hearing, or order of court."

Read on its own, that is about as much authority as a fiduciary is ever given. Read with its own cross-reference, it is bounded by exactly the two sections above — the list that may be done freely, and the list that needs the court. Alabama's answer is not that the representative is weak; it is that the representative is strong everywhere except where the statute says otherwise, and buildings are one of the places it says otherwise.

Three States, Three Different Answers

• Texas — Estates Code Section 351.101 obliges the representative to keep estate buildings in good repair, excepting extraordinary casualties and subject to a contrary court order
• Louisiana — Code of Civil Procedure Article 3221 obliges the succession representative to preserve, repair, maintain and protect succession property, with personal liability for damages under Article 3191
• Alabama — no equivalent affirmative repair duty; repairs sit behind prior court approval under Section 43-2-844 unless the will grants the power, while protection and preservation costs are payable under Sections 43-2-837 and 43-2-843 without one

For the neighbouring provisions, see an executor's duty to maintain estate property in Texas and a succession representative's duty to preserve property in Louisiana. Administering across state lines on the assumption that these are variations on one rule is how a representative ends up having done something that needed an order.

What This Means on a Vacant Alabama House

• Read the will first — express authority changes what can be done without returning to court
• Decide possession deliberately, because the duty to fund preservation follows it
• Put the written demand in writing where property is held by an heir; the statute makes it conclusive evidence
• Keep protection work and repair work separable in scope and on the invoice, so an accounting does not blur the two
• Insure early — it is expressly authorised without an order
• Record condition with dated photographs from the first visit, so that the case for any order sought later is evidenced rather than described