Email this page to a friendAlabama Bankruptcy Exemptions
Section 522(d) as amended 1999
The following property may be exempted under subsection (b)(1) of this section: 1. The debtor's aggregate interest, not to exceed $18,450 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, in a cooperative that owns property that the debtor or a dependent of the debtor uses as a residence, or in a burial plot for the debtor or a dependent of the debtor. 2. The debtor's interest, not to exceed $2,950 in value, in one motor vehicle. 3. The debtor's interest, not to exceed $425 in value in any particular item or $9,850 in aggregate value, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments, that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. 4. The debtor's aggregate interest, not to exceed $1,225 in value, in jewelry held primarily for the personal, family, or household use of the debtor or a dependent of the debtor. 5. The debtor's aggregate interest in any property, not to exceed in value $975 plus up to $9,250 of any unused amount of the exemption provided under paragraph (1) of this subsection. 6. The debtor's aggregate interest, not to exceed $1,850 in value, in any implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor. 7. Any un-matured life insurance contract owned by the debtor, other than a credit life insurance contract. 8. The debtor's aggregate interest, not to exceed in value $9,850 less any amount of property of the estate transferred in the manner specified in section 542(d) of this title, in any accrued dividend or interest under, or loan value of, any un-matured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent. 9. Professionally prescribed health aids for the debtor or a dependent of the debtor. 10. The debtor's right to receive - A. a social security benefit, unemployment compensation, or a local public assistance benefit; B. a veterans' benefit; C. a disability, illness, or unemployment benefit; D. alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; E. a payment under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless - i. such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor's rights under such plan or contract arose; ii. such payment is on account of age or length of service; and iii. such plan or contract does not qualify under section 401(a), 403(a), 403(b), 408, or 409 (FOOTNOTE 1) of the Internal Revenue Code of 1986 (26 U.S.C. 401(a), 403(a), 403(b), 408, or 409). (FOOTNOTE 1) See References in Text note below. 11. The debtor's right to receive, or property that is traceable to - A. an award under a crime victim's reparation law; B. a payment on account of the wrongful death of an individual of whom the debtor was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; C. a payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of such individual's death, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor; D. a payment, not to exceed $18,450, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependent; or E. a payment in compensation of loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.
ALABAMA Exemptions:
In general, a debtor may claim exemption of his homestead and certain personal property from attachment and execution of a judgment, or in a bankruptcy proceeding. The Alabama statutes permit exemption of a debtor's homestead up to the amount of $5,000.00 (C.O.A. 6-10-2); and personal property up to the value of $3,000.00. In addition, all family portraits or pictures and all books used in the family are exempt from levy or sale. (C.O.A. 6-10-6.) In a bankruptcy proceeding, a debtor, who is a resident of Alabama, is not permitted to elect the exemptions provided under the federal Bankruptcy Code even though the federal exemptions may be more beneficial in his situation. (C.O.A. 6-10-11.)
Section 6-10-1
Law governing exemptions and claims.
The right of homestead or other exemption shall be governed by the law in force when the debt or demand was created, but the mode or remedy for asserting, ascertaining, contesting, and determining claims thereto shall be as prescribed in this chapter. (Code 1876, §2844; Code 1886, §2542; Code 1896, §2068; Code 1907, §4195; Code 1923, §7917; Code 1940, T. 7, §660.)
Section 6-10-2
Homestead exemption - Amount; area.
The homestead of every resident of this state, with the improvements and appurtenances, not exceeding in value $5,000 and in area 160 acres, shall be, to the extent of any interest he or she may have therein, whether a fee or less estate or whether held in common or in severalty, exempt from levy and sale under execution or other process for the collection of debts during his or her life and occupancy and, if he or she leaves surviving him or her a spouse and a minor child, or children, or either, during the life of the surviving spouse and minority of the child, or children, but the area of the homestead shall not be enlarged by reason of any encumbrance thereon or of the character of the estate or interest owned therein by him or her. When a husband and wife jointly own a homestead each is entitled to claim separately the exemption provided herein, to the same extent and value as an unmarried individual. For purposes of this section and Sections 6-10-38 and 6-10-40, a mobile home or similar dwelling if the principal place of residence of the individual claiming the exemption shall be deemed to be a homestead. (Code 1876, §2820; Code 1886, §2507; Code 1896, §2033; Code 1907, §4160; Code 1923, §7882; Code 1940, T. 7, §625; Acts 1980, No. 80-569, p. 879, §2.)
Section 6-10-3
Homestead exemption - Alienation by married person.
No mortgage, deed or other conveyance of the homestead by a married person shall be valid without the voluntary signature and assent of the husband or wife, which must be shown by his or her examination before an officer authorized by law to take acknowledgments of deeds, and the certificate of such officer upon, or attached to, such mortgage, deed, or other conveyance, which certificate must be substantially in the form of acknowledgment for individuals prescribed by Section 35-4-29. (Code 1876, §2822; Code 1886, §2508; Code 1896, §2034; Code 1907, §4161; Code 1923, §7883; Acts 1931, No. 116, p. 183; Code 1940, T. 7, §626; Acts 1951, No. 83, p. 300.)
Section 6-10-4
Homestead exemption - Liens not affected.
The provisions of this article shall not, however, be so construed as to prevent any lien attaching to the homestead in favor of any laborer, merchant, or materialman for work and labor done or for materials furnished, or in favor of any vendor for unpaid purchase money or so as to affect any deed, mortgage, or lien on such homestead, lawfully executed or created. (Code 1876, §2822; Code 1886, §2509; Code 1896, §2035; Code 1907, §4162; Code 1923, §7884; Code 1940, T. 7, §627.)
Section 6-10-5
Burial place and church pew or seat.
In favor of any resident of this state, there shall also be exempt from levy and sale, under execution or other process, any lot or lots in cemeteries or elsewhere, set apart or used as a burial place for himself or herself or family and any pew or seat in any church or other place of worship, held and occupied by him or her for the use of himself or herself or family. (Code 1876, §2823; Code 1886, §2510; Code 1896, §2036; Code 1907, §4163; Code 1923, §7885; Code 1940, T. 7, §628.)
Section 6-10-6
Personalty.
The personal property of such resident, except for wages, salaries, or other compensation, to the extent of the resident's interest therein, to the amount of $3,000 in value, to be selected by him or her, and, in addition thereto, all necessary and proper wearing apparel for himself or herself and family, all family portraits or pictures and all books used in the family shall also be exempt from levy and sale under execution or other process for the collection of debts. No wages, salaries, or other compensation shall be exempt except as provided in Section 5-19-15 or Section 6-10-7. (Code 1876, §§2820, 2823; Code 1886, §2511; Code 1896, §2037; Code 1907, §4164; Code 1923, §7886; Code 1940, T. 7, §629; Acts 1980, No. 80-569, p. 879, §3; Acts 1988, No. 88-294, p. 454, §2.)
Section 6-10-7
Wages, salaries or other compensation of laborers or employees for personal services. (a) The wages, salaries, or other compensation of laborers or employees, residents of this state, for personal services, shall be exempt from levy under writs of garnishment or other process for the collection of debts contracted or judgments entered in tort in an amount equal to 75 percent of such wages, salaries, or other compensation due or to become due to such laborers or employees, and the levy as to such percentage of their wages, salaries, or other compensation shall be void. The court issuing the writ or levy shall show thereon the amount of the claim of the plaintiff and the court costs in the proceedings. If at any time during the pendency of the proceedings in the court a judgment is entered for a different amount, then the court shall notify the garnishee of the correct amount due by the defendant under the writ or levy. The garnishee shall retain 25 percent of the wages, salaries, or other compensation of the laborer or employee during the period of time as is necessary to accumulate a sum equal to the amount shown as due by the court on the writ or levy. Should the employment of the defendant for any reason be terminated with the garnishee, then the garnishee shall not later than 15 days after the termination of employment, report the termination to the court and pay into court all sums withheld from the defendant's wages, salaries, or other compensation. If the plaintiff in garnishment contests the answer of the garnishee, as now provided by law in such cases, and proves to the court the deficiency or untruth of the garnishee's answer, the court shall enter judgment against the garnishee for such amount as would have been subject to the order of condemnation had the sum not been released to the defendant. (b) The garnishee shall, after a period of 30 days from the first retention of any sum from the defendant's wages, salaries, or other compensation, commence paying the funds into court, as they are deducted or withheld and continue to do so on a monthly or more frequent basis until the full amount is withheld. Upon receipt by the court of a written request by the plaintiff, the court may enter an order of condemnation of said funds received and thereupon disburse the same to the plaintiff. (Code 1876, §2823; Code 1886, §2512; Code 1896, §2038; Code 1907, §4165; Code 1923, §7887; Acts 1939, No. 235, p. 396; Code 1940, T. 7, §630; Acts 1949, No. 541, p. 851; Acts 1957, No. 613, p. 880; Acts 1992, 2nd Ex. Sess., No. 92-681, p. 67, §1.)
Section 6-10-8
Rights of beneficiaries and assignees under life insurance policies.
If a policy of insurance, whether heretofore or hereafter issued, is effected by any person on his or her own life or on another life in favor of a person other than himself or herself or, except in cases of transfer with intent to defraud creditors, if a policy of life insurance is assigned or in any way made payable to any such person, the lawful beneficiary or assignee thereof, other than the insured or the person so effecting such insurance, or his or her executors or administrators, shall be entitled to its proceeds and avails against the creditors and representatives of the insured and of the person effecting the same, whether or not the right to change the beneficiary is reserved or permitted and whether or not the policy is made payable to the person whose life is insured if the beneficiary or assignee shall predecease such person; provided, that subject to the statute of limitations, the amount of any premiums for said insurance paid with intent to defraud creditors, with interest thereon, shall inure to their benefit from the proceeds of the policy; but the company issuing the policy shall be discharged of all liability thereon by payment of its proceeds in accordance with its terms unless, before such payment, the company shall have written notice, by or in behalf of a creditor, of a claim to recover for transfer made or premiums paid with intent to defraud creditors, with specifications of the amount claimed. A husband or a wife, in his or her own name or in the name of a trustee, may insure the life of his or her spouse for the benefit of himself or herself, or for the benefit of himself or herself and any child or children of the marriage; or a husband or a wife may insure his or her own life for the benefit of his or her spouse, or for the benefit of his or her spouse and children, or for the benefit of their children, either in the names of such children or in the name of a trustee; and such insurance and the proceeds and avails thereof, whether or not the right to change the beneficiary is reserved or permitted, is exempt from liability for the debts or engagements of the insured, or for the torts of the insured, or for any penalty or damages recoverable of the insured. (Code 1867, §§3539h, 3539i; Code 1876, §§2733, 2734; Code 1886, §2356; Code 1896, §2535; Code 1907, §4502; Code 1923, §8277; Acts 1932, Ex. Sess., No. 160, p. 190; Code 1940, T. 7, §624.)Section 6-10-9
Partnership property.
No property, real or personal, held or owned by partners as partnership property or purchased with partnership funds for partnership purposes shall be the subject of homestead or other exemption as against copartners or partnership creditors. (Code 1876, §2820; Code 1886, §2513; Code 1896, §2039; Code 1907, §4166; Code 1923, §7888; Code 1940, T. 7, §631.)
Section 6-10-10
County and municipal property.
All property, real or personal, belonging to the several counties or municipal corporations in this state and used for county or municipal purposes shall be exempt from levy and sale under any process or judgment whatsoever. (Code 1876, §2845; Code 1886, §2514; Code 1896, §2040; Code 1907, §4167; Code 1923, §7889; Code 1940), T. 7, §632.)
Section 6-10-11
Exemptions in federal bankruptcy.
In cases instituted under the provisions of Title 11 of the United States Code entitled "Bankruptcy," there shall be exempt from the property of the estate of an individual debtor only that property and income which is exempt under the laws of the State of Alabama and under federal laws other than Subsection (d) of Section 522 of said Title 11 of the United States Code. (Acts 1980, No. 80-569, p. 879, §1.)
Section 6-10-20
Declaration of claimed exemptions - Making and filing.
Any resident of this state entitled to, and desiring to, claim a homestead or other exemption from levy and sale under execution or other process may, at any time, make and file in the office of the probate judge of the county in which the property is situated, if a homestead, or, if personal property, of the county in which such resident resides, a declaration in writing, subscribed and sworn to by him or her, describing the property selected and claimed by him or her as exempt, item by item, in case of personal property, with its value. Other declarations may, from time to time, as occasion may require, be made and filed. (Code 1876, §2828; Code 1886, §2515; Code 1896, §2041; Code 1907, §4168; Code 1923, §7890; Code 1940, T. 7, §633.)
Section 6-10-21
Declaration of claimed exemptions - Recordation; receipt; certified copies.
Such declarations of claims of exemptions shall be recorded in a separate book, kept for that purpose, and the probate judge, on request, shall give a receipt therefor and shall furnish a certified copy thereof, when requested, on payment of lawful fees therefor. (Code 1876, §2829; Code 1886, §2516; Code 1896, §2042; Code 1907, §4169; Code 1923, §7891; Code 1940, T. 7, §634.)
Section 6-10-22
Declaration of claimed exemptions - Fees for filing, etc.
The fees for filing, recording, copying and certifying such declarations shall be the same as are allowed by law for filing, recording, copying, and certifying deeds. (Code 1876, §2829; Code 1886, §2518; Code 1896, §2044; Code 1907, §4171; Code 1923, §7893; Code 1940, T. 7, §636.)
Section 6-10-23
Declaration of claimed exemptions - Effect as evidence and notice.
After the filing of such declaration, the claim of exemption therein asserted shall be taken and considered as prima facie correct, and the filing thereof shall operate as notice of its contents. (Code 1876, §§2828, 2831; Code 1886, §2517; Code 1896, §2043; Code 1907, §4170; Code 1923, §7892; Code 1940, T. 7, §635.)
Section 6-10-24
Declaration of claimed exemptions - Effect of waiver or contest.
After such declaration of claim has been filed for record, the property therein embraced shall not be subject to levy unless there is endorsed on the process the fact that there has been a waiver of exemption as to the kind of property on which the levy is sought to be made or the claim is contested. (Code 1876, §2830; Code 1886, §2519; Code 1896, §2045; Code 1907, §4172; Code 1923, §7894; Code 1940, T. 7, §637.)
Section 6-10-25
Declaration of claimed exemptions - Contesting of claims.
A plaintiff, in person or by his or her agent or attorney, may contest a claim of exemption after a declaration thereof has been filed by making and filing with the officer holding the process an affidavit that, in his belief, either the claim is invalid entirely or it is invalid in part or is excessive, specifying wherein such invalidity or excess consists, and if excessive, also specifying the property alleged to be in excess, to be, in all cases, the last named in the claim. If the claim is of personal property, he or she must also deliver to the officer a bond in double the value of the property sought to be levied on, with sureties to be approved by the officer, payable to the defendant claiming the exemption and conditioned that if the plaintiff fails in the contest, he or she will pay the defendant all such costs and damages as he or she may sustain by reason of the wrongful institution of the contest. Thereupon, the officer shall proceed to make a levy and, within three days thereafter, shall notify the defendant in writing of the same. (Code 1876, §2830; Code 1886, §2520; Code 1896, §2046; Code 1907, §4173; Code 1923, §7895; Code 1940, T. 7, §638.)
Section 6-10-26
Claim of exemption after levy and prior to sale; contesting of such claim.
The right of homestead or other exemption shall not be waived or lost by a failure, before the levy of process, to file for record a declaration claiming the same; but the defendant, in person or by his or her agent or attorney, may, at any time after the levy and prior to a sale, file with the officer making the levy a claim in writing, verified by oath, to such property, or any part thereof, as exempt and, if of a part, describing the same; and, within three days thereafter, such officer must give to the plaintiff or his or her agent or attorney written notice of the filing of the claim. Thereupon, the plaintiff, in person or by his or her agent or attorney, may contest the claim in the mode provided in Section 6-10-25; except, that no bond need be executed; and on the institution of such contest, the officer shall, within three days thereafter, give the defendant written notice of the same. If the plaintiff does not institute such contest within 10 days after notice of the claim, the levy shall be discharged, the property, if personal, shall be returned to the defendant and the plaintiff shall be taxed with the costs of making the levy and keeping the property. When the levy has been made on personal property, the defendant must file with his or her claim the statement of personal property, choses in action and money, with the value and location thereof, as required by the provisions of Section 6-10-29. (Code 1876, §2834; Code 1886, §2521; Code 1896, §2047; Code 1907, §4174; Code 1923, §7896; Code 1940, T. 7, §639.)
Section 6-10-27
Contest of exemption claim - Delivery of personalty to defendant upon executing bond; proceedings when bond not forthcoming. (a) When any contest of a claim of exemption to personal property has been instituted, the defendant claiming the exemption may, within five days after service of notice of the contest, deliver to the officer making the levy a bond in double the amount of the value of the property, to be fixed by, and with sureties to be approved by, the officer, payable to the plaintiff and conditioned that if the defendant is not successful in the contest, he or she will, within 30 days thereafter, deliver the property to such officer and will pay all costs and damages that may result from its detention. Thereupon, the property shall be delivered to the defendant. (b) If the defendant fails to deliver such bond within the five days allowed him or her and the plaintiff shall, within five days thereafter, deliver to the officer a bond in the amount, and with the sureties, provided in subsection (a) of this section, conditioned that if the plaintiff is not successful in the contest, he or she will, within 30 days thereafter, deliver the property to the defendant and pay all costs and damages that may result from the detention thereof, the property shall be delivered to the plaintiff; but if the plaintiff fails to deliver such bond within the five days allowed, the property must be returned to the defendant without bond. (Code 1876, §2836; Code 1886, §§2522, 2523; Code 1896, §§2048, 2049; Code 1907, §§4175, 4176; Code 1923, §§7897, 7898; Code 1940, T. 7, §§640, 641.)
Section 6-10-28
Contest of exemption claim - Return of levying officer.
In case of such contest, the officer making the levy must, within 15 days after the institution of the contest, return the process and other papers to the court to which the process is returnable, accompanied with a full statement of the facts. (Code 1876, §2836; Code 1886, §2524; Code 1896, §2050; Code 1907, §4177; Code 1923, §7899; Code 1940, T. 7, §642.)
Section 6-10-29
Contest of exemption claim - Filing of inventory by defendant; effect of failure to file.
On any contest of a claim of exemption to personal property, on the plaintiff's written demand, made at any time, the defendant claiming the exemption shall, within 10 days, file a full and complete inventory, duly verified by oath, of all his or her personal property, except the wearing apparel, portraits, pictures, and books specifically exempted from levy and sale, with the value and location of each item of such property, of all money belonging to him or her, whether in his or her possession or held by others for him or her, and of all debts and choses in action belonging to him or her or in which he or she is beneficially interested, with the value of each of them. If such inventory is not filed within the time prescribed, the plaintiff shall not be required to tender an issue on the claim, but the court must enter judgment by default against the defendant, unless good and sufficient cause is shown to the contrary. (Code 1876, §2837; Code 1886, §2525; Code 1896, §2051; Code 1907, §4178; Code 1923, §7900; Code 1940, T. 7, §643.)
Section 6-10-30
Contest of exemption claim - Trial of issues.
The contest of any claim of exemptions shall be a preferred case, and after the return of the process, if both parties appear, an issue or issues shall be formed under the direction of the court as to whether the property in contest, or any and what part of it, is exempt as claimed. Such issue or issues shall be tried as other cases are tried. In all cases, the party in whose favor the levy was made shall be deemed the plaintiff, upon whom shall rest the burden of proof, and both parties shall be entitled to the same right of objection, exception and of appeal as in other cases. (Code 1876, §2838; Code 1886, §2526; Code 1896, §2052; Code 1907, §4179; Code 1923, §7901; Code 1940, T. 7, §644.)
Section 6-10-31
Contest of exemption claim - Trial by jury in probate court.
When a contest of a claim of exemption is triable in the probate court, either party shall be entitled to a trial by jury on demand therefor, made by the contestant at the time of filing the contest and by the contestee within 10 days after notice of the contest is filed by the claimant; but if not then made, the right of trial by jury shall be waived. (Code 1876, §2838; Code 1886, §2527; Code 1896, §2053; Code 1907, §4180; Code 1923, §7902; Code 1940, T. 7, §645.)
Section 6-10-32
Contest of exemption claim - Judgment.
If the plaintiff fails to appear in support of his contest or if on the trial all the property in contest is found exempt, judgment must be entered against the plaintiff for the costs of the levy and contest and releasing the property from the levy, but if the defendant fails to appear in support of his or her claim of exemption or if on the trial any of the property is found liable to the process, judgment must be entered against the defendant for costs and condemning the property to sale. (Code 1876, §2838; Code 1886, §2528; Code 1896, §2054; Code 1907, §4181; Code 1923, §7903; Code 1940, T. 7, §646.)
Section 6-10-33
Contest of exemption claim - Proceedings when claim of personalty found excessive.
When, on a contest of a claim of exemption to personal property, the issue is whether or not the claim is excessive and such issue is found in favor of the plaintiff, it must also be ascertained by the finding of the court or the verdict of the jury, as the case may be, how much and what portion of the property is exempt, describing the same with its value, approximating in value as nearly as practicable $3,000, and the residue of the property shall be sold, and out of the proceeds of sale there shall be paid to the defendant an amount which, when added to the value of the property found to be exempt, will make the exemption equal to $3,000, and the balance shall be applied to the payment of the costs and satisfaction of the process. (Code 1876, §2839; Code 1886, §2529; Code 1896, §2055; Code 1907, §4182; Code 1923, §7904; Code 1940, T. 7, §647; Acts 1980, No. 80-569, p. 879, §4.)
Section 6-10-34
Contest of exemption claim - Proceedings when inventory discloses personalty not embraced by claim of exemption.
When, on a contest of a claim of exemption to personal property, an inventory filed by the defendant on the plaintiff's demand discloses other personal property owned by the defendant and subject to sale under process not embraced in the claim of exemption, the defendant, at the time of filing the inventory, shall deliver such property to the officer making the levy, who shall, whether he has returned the process or not, in case of an execution sell the property as in other cases and apply the proceeds to the satisfaction of the execution or, in case of an attachment or other mesne process, shall hold the property to await the final determination of the action. In either event, he shall make due return of the facts to the court. (Code 1886, §2530; Code 1896, §2056; Code 1907, §4183; Code 1923, §7905; Code 1940, T. 7, §648.)
Section 6-10-35
Contest of exemption claim - Tender of issue by plaintiff on inventory filed by defendant; determination thereof.
When, on a contest of a claim of exemption to personal property, an inventory has been filed by the defendant, an issue may be tendered by the plaintiff that the defendant has other personal property subject to levy and sale under the process not embraced in the inventory or that the inventory discloses that the defendant has other personal property subject to levy and sale under the process not embraced in the claim of exemption which he has failed to deliver to the officer levying the process. If such issue is determined in favor of the plaintiff, the value of such property shall be ascertained and estimated in ascertaining the amount of the exemption to which the defendant is entitled and be deducted from his or her claim in contest as if such property had been selected by him or her as part of his or her exemptions. (Code 1876, §2839; Code 1886, §2531; Code 1896, §2057; Code 1907, §4184; Code 1923, §7906; Code 1940, T. 7, §649.)
Section 6-10-36
Contest of exemption claim - Assessment of value of property and damages resulting from detention on bond; judgment and execution on bond. When bond has been executed by the plaintiff or defendant for the forthcoming of the property in contest, the value of the property, and the damages resulting from its detention must be assessed by the court or jury trying the contest. If the unsuccessful party fails for 20 days after judgment to deliver the property and pay the damages as required by the condition of the bond, it shall be the duty of the sheriff to make due return of that fact; and, upon such return being made, the bond shall have the force and effect of a judgment, and execution may issue thereon against the obligors on the bond for the value of the property and the damages assessed, or either, and costs. (Code 1876, §2836; Code 1886, §2532; Code 1896, §2058; Code 1907, §4185; Code 1923, §7907; Code 1940, T. 7, §650.)
Section 6-10-37
Contest of exemption claim - Garnishment of money, choses in action or personal property.
When money, choses in action or personal property are garnished and the defendant claims the same, or any part thereof, as exempt, he shall file his claim thereto in writing, verified by oath, in the court in which such proceedings are pending, accompanied by a statement setting forth the personal property, choses in action, and money and the location and value thereof, as required in the statement to be filed under the provisions of Section 6-10-29. Such claim the plaintiff, in person or by his agent or attorney, may contest as in cases of contest after declaration filed, and such contest shall be tried and determined as other contests of claims of exemptions are tried and determined. If the defendant has notice of the garnishment, the claim of exemption must be interposed before judgment of condemnation, but if not, such judgment shall not operate to impair or affect his claim of exemption. Notice of the garnishment must be in writing and may be given by the plaintiff or garnishee, but must be served by the sheriff at least five days before any judgment of condemnation. No claim for exemptions shall exceed the greater of the amounts authorized by the Constitution of 1901, as amended, or required by provisions of federal law. (Code 1876, §2842; Code 1886, §2533; Code 1896, §2059; Code 1907, §4186; Code 1923, §7908; Code 1940, T. 7, §651; Acts 1988, No. 88-294, p. 454, §2.)
Section 6-10-38
Contest of exemption claim - Proceedings when homestead found to exceed value or area allowed.
(a) If, on the trial of a contest of a claim of homestead exemption, it is found that the homestead as claimed exceeds $5,000 in value (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000), or 160 acres in area, the court shall forthwith issue an order to the sheriff, returnable in 30 days thereafter, commanding him to summon three disinterested householders or freeholders of the county in which the homestead is situated, who, after having been sworn by the sheriff or some officer authorized to administer oaths to faithfully discharge their duty, shall, if practicable, set off and allot, by metes and bounds, the homestead exempt to the defendant from levy and sale under process, having regard both to the quality and value of the real estate and to the selection of the defendant and taking land most contiguous to the dwelling, and including such dwelling and appurtenances. The commissioners, as soon as practicable, shall make return of the homestead so allotted and set off by them, in writing subscribed by them, to the sheriff, who shall make due return thereof to the court issuing the order; and the homestead, thus allotted and set off, shall be released from the levy and the residue of the land sold under the order of the court, unless for good cause shown, the courts shall set aside the commissioners' return, in which event another order for summoning commissioners shall be issued. If the commissioners summoned, or any of them, shall fail to act, the sheriff shall summon others to fill their places. (b) If the homestead, after having been reduced to its lowest practicable area, still exceeds in value $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000) thereby rendering it impracticable to allot and set it off under subsection (a) of this section, the commissioners shall so make return to the sheriff, who shall thereupon proceed, as in other cases, to advertise and offer the same for sale under the process. If at the sale he receives a bid therefor exceeding $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000) he shall sell the same, and of the purchase money $5,000 shall be paid to the defendant (or if a husband and wife have both claimed the exemption, $5,000 paid to each), or into the court for him or her, in lieu of the homestead, and the excess only shall be applied to the satisfaction of the process; but if no bid in excess of $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000) shall be received, the sheriff shall discharge the levy at the plaintiff's cost and return the process, and thereafter no process issued to enforce the plaintiff's demand shall be levied on such homestead so long as it shall continue a homestead except on the written demand of the plaintiff accompanied by an offer in writing to purchase the same for an amount exceeding $5,000 (or if a husband and wife have both claimed the exemption to which each is entitled, $10,000), which offer must state the amount and, at the election of the defendant, shall be binding on the plaintiff. (c) When a sale is made under subsection (b) of this section and any defendant dies before receiving their $5,000 standing in lieu of the homestead, the same shall be paid to his or her personal representative, who shall receive and hold it subject to the homestead rights of the defendant's surviving spouse and minor child or children, or either, if there be such; but, if there be none such, the personal representative shall first apply the same to the payment of the demand for the enforcement of which the process issued, and the balance he shall administer as personal assets of the estate. (Code 1876, §2832; Code 1886, §§2534-2536; Code 1896, §§2060-2062; Code 1907, §§4187-4189; Code 1923, §§7909-7911; Code 1940, T. 7, §§652-654; Acts 1980, No. 80-569, p. 879, §5.)
Section 6-10-39
Interposition of homestead claim or other exemptions and defense of contest thereof by spouse or minor children. If a husband, wife or parent, entitled to a homestead or other exemption, absconds or abandons his or her family, leaves the state, is insane, is confined under a charge or conviction for felony or misdemeanor, or is under any other disability or inability, the spouse or, if there is no spouse, the minor child or children, residents of this state with the intention so to continue, shall be entitled to interpose any and all claims of homestead or other exemption which the husband, wife, or parent could have interposed; but the right to such exemptions shall continue only so long as the spouse and minor child or children, or either, shall remain bona fide residents of this state. In the event of the death of the husband, wife or parent pending any contest of a claim of homestead or other exemption, such contest may be revived in the name of the surviving spouse, if there is one, or, if there is none, in the name of the minor child or children, if there are such; but if neither a surviving spouse nor minor child is left surviving, the claim of exemption shall abate and the property ordered sold for the satisfaction of the process. No judgment of condemnation or sale shall be made under this section until the spouse or, if there is no spouse, the minor child, shall have had 20 days' written notice of the levy of the execution, to be served by the sheriff. (Code 1876, §2837; Code 1886, §2537; Code 1896, §2063; Code 1907, §4190; Code 1923, §655; Code 1940, T. 7, §655.)
Section 6-10-40
Sale of land and separation of homestead interest from that of alienee.
When the homestead, after being reduced to the lowest practicable area, exceeds $5,000 in value and the husband or wife has aliened the same by deed, mortgage or other conveyance without the voluntary signature and assent of the spouse, shown and acknowledged as required by law, the alienor or, if he or she fails to act, the spouse or, if there is no spouse or if he or she fails to act, their minor child or children may, by filing a complaint, have the land sold and the homestead interest separated from that of the alienee. (Code 1876, §2832; Code 1886, §2538; Code 1896, §2064; Code 1907, §4191; Code 1923, §7913; Code 1940, T. 7, §656; Acts 1980, No. 80-569, p. 879, §6.)
Section 6-10-41
Effect of leaving homestead temporarily or leasing same.
When a declaration of claim to a homestead exemption has been filed in the office of the judge of probate, leaving the homestead temporarily or a leasing of the same shall not operate an abandonment thereof or render it subject to levy and sale, but the right thereto shall remain the same as if the actual occupancy thereof had continued. (Code 1876, §2843; Code 1886, §2539; Code 1896, §2065; Code 1907, §4192; Code 1923, §7914; Code 1940, T. 7, §657.)
Section 6-10-42
When no action lies against officer levying on exempt property.
If no declaration of claim of exemption has been filed in the office of the judge of probate or if so filed and the same is contested, no action shall lie against the officer levying the process on the ground that the property levied on is exempt. (Code 1876, §2833; Code 1886, §2540; Code 1896, §2066; Code 1907, §4193; Code 1923, §7915; Code 1940, T. 7, §658.)
Section 6-10-43
Effect of contest on sale of property and lien thereon.
When a contest of a claim of exemption has been instituted, the property in contest shall not be sold by the officer until the contest is decided, but the lien thereon under the process or levy shall not be destroyed or impaired by the pendency of the contest. (Code 1876, §2835; Code 1886, §2541; Code 1896, §2067; Code 1907, §4194; Code 1923, §7916, Code 1940, T. 7, §659.)
Section 6-10-67
Right to use of property before such set apart and to commence or defend actions thereon.
Before grant of administration and before the exempt property is set apart, the right of the surviving spouse and minor child or children, or either, to the use and benefit of such property shall be the same as if it had been set apart as exempt; and actions respecting the same may be commenced or defended by the surviving spouse or, if there is no surviving spouse, by the minor child, or children, as fully and to the same extent as if such property had been set apart as exempt from administration.
Section 6-10-80
Appraisers - Issuance of commission.
When a decedent, who was at the time of his or her death a resident of this state, leaves surviving him a spouse and minor child or children, or either, who are bona fide residents of this state, the probate court, at the time of appointing appraisers of the estate, shall issue a commission to them, stating the names of the surviving spouse and minor child or children, or either, as the case may be, and the nature and extent of the personal property exempt in their favor, and directing the appraisers to set apart the same. (Code 1876, §2825; Code 1886, §2548; Code 1896, §2078; Code 1907, §4205; Code 1923, §7927; Code 1940, T. 7, §670.)
Section 6-10-81
Appraisers - Duty to set apart exempt personal property; return of report.
The appraisers, as early as practicable, shall set apart the exempt personal property, having regard, as far as consistent with their duties, to the selection made by the surviving spouse or the guardian of the minor child or children, if such selection is made; estimating it at its appraised value and permitting the surviving spouse or, if there is no surviving spouse or the surviving spouse fails to act, the guardian of the minor child or children to select the same. Within 10 days thereafter, the appraisers shall return with the inventory and appraisement a report of the property so set apart, showing each item thereof and its appraised value. (Code 1886, §2549; Code 1896, §2079; Code 1907, §4206; Code 1923, §7928; Code 1940, T. 7, §671; Acts 1982, No. 82-399, p. 578, §8-102.)
Section 6-10-82
Appraisers - Report of homestead appraisement.
The appraisers shall also appraise the homestead of the decedent occupied by the decedent at the time of death or to which the decedent was then entitled, and they shall report the appraisement thereof when the inventory and appraisement of the personal property are returned, with a full and accurate description of the same. (Code 1886, §2550; Code 1896, §2080; Code 1907, §4207; Code 1923, §7929; Code 1940, T. 7, §672; Acts 1982, No. 82-399, p. 578, §8-102.)
Section 6-10-83
Proceedings to set apart homestead when same exceeds value allowed.
When it appears from the report of the appraisers that the homestead exceeds in value $6,000, the probate court shall forthwith appoint three commissioners, who shall, as soon as practicable not exceeding 30 days after their appointment, set off and allot the homestead exempt, having regard to both the quality and value of the property and to the selection of the surviving spouse or, if there is no surviving spouse or the surviving spouse fails to act, of the guardian of the minor child or children, if there is such guardian; and, within 10 days thereafter, the commissioners shall return to the court in writing the homestead set off and allotted by them. (Code 1886, §2551; Code 1896, §2081; Code 1907, §4208; Code 1923, §7930; Code 1940, T. 7, §673; Acts 1951, No. 911, p. 1558, §1; Acts 1982, No. 82-399, p. 578, §8-102.)
Section 6-10-84
Proceedings on failure of appraisers to set apart exemptions or to appraise homestead.
If, for more than 20 days after the grant of administration, the appraisers should fail to set apart the personal property exempt in favor of the surviving spouse and minor child or children, or either, or to appraise the homestead or to make the report in reference to the homestead required in Section 6-10-82, then, upon the written application of the surviving spouse or of the guardian of the minor child or children, the probate court shall appoint three commissioners who shall, as soon as practicable thereafter not exceeding 30 days, set apart the personal property exempt and appraise the homestead in the manner required of the appraisers; and, if practicable, they shall also allot and set off the homestead exemption in the manner provided in Section 6-10-83. Within 10 days thereafter they shall report to the court in writing the personal property set apart, with the value of each item thereof, and the homestead allotted and set off, with a full and accurate description of the same. If the homestead, after being reduced to its lowest practicable area, still exceeds $6,000 in value, thereby rendering it impracticable to allot and set it off, the commissioners shall report that fact. (Code 1886, §2552; Code 1896, §2082; Code 1907, §4209; Code 1923, §7931; Code 1940, T. 7, §674; Acts 1951, No. 911, p. 1558, §1.)
Section 6-10-85
How exemption in lieu of homestead claimed and set apart.
When an exemption of real estate in lieu of homestead is claimed under Section 6-10-61, a petition in writing, duly verified by oath, must be filed by, or on behalf of, the surviving spouse and minor child or children, or either, as the case may be, in the probate court having jurisdiction of the administration of the estate, setting forth the facts authorizing such exemption, describing the real estate out of which the exemption is claimed and stating its value. Thereupon the court shall appoint three commissioners who shall set off and allot the same by metes and bounds; and, within 10 days thereafter, they shall make a written report to the court of the exemption set off and allotted by them. (Code 1886, §2553; Code 1896, §2083; Code 1907, §4210; Code 1923, §7932; Code 1940, T. 7, §675.)
Section 6-10-86
Report of appraisers or commissioners - Exceptions; notice of time set for hearing thereon.
When any homestead or other exemption has been allotted or set apart by the appraisers or by commissioners, the personal representative, surviving spouse, minor child or children, or other person in interest feeling aggrieved may, within 30 days after the making of the report, file written exceptions thereto, stating the grounds of such exceptions. Thereupon the court must fix a day for the hearing of the exceptions, of which 10 days' notice must be given by personal service, if the adverse parties reside in the state or, if they reside out of the state, by publication in some newspaper published in the county. If the exceptions are filed by the surviving spouse and minor child or children, or either, such notice must be served on the personal representative, but if filed by the personal representative or other person, the notice must be served on the surviving spouse, if there is one, or, if not and the minor children are over the age of 14 years, on them, but if they are under the age of 14 years, then on their guardian or, if there is none, on the person having the charge or custody of them. If there is no guardian, the court must appoint a guardian ad litem to represent such minor child or children. (Code 1876, §2841; Code 1886, §2554; Code 1896, §2084; Code 1907, §4211; Code 1923, §7933; Code 1940, T. 7, §676.)
Section 6-10-87
Report of appraisers or commissioners - Notice to next of kin of decedent of date set for hearing of report on exemptions.
In all cases where exemptions of real or personal property have been reported by appraisers or commissioners to the surviving spouse and minor child or children, or either, it shall be the duty of the probate judge, immediately upon the filing of the report of such appraisers or commissioners, to give 10 days' notice thereof and of the day set for the hearing of said report to the next of kin of decedent, which date of hearing shall not be less than 30 days from the filing of said report. If any of said next of kin are nonresidents of the state, said notice shall be given by publication once a week for three successive weeks in some newspaper published in the county or, if none is published in the county, by posting such notice for said length of time at the courthouse door and three other public places in the county. (Code 1923, §7934; Code 1940, T. 7, §677.)
Section 6-10-88
Report of appraisers or commissioners - Hearing and determination on exceptions; proceedings when exemption of personalty excessive or insufficient. (a) On the day fixed for the hearing of such exceptions, an issue shall be made up under the direction of the court and the same shall be tried as other issues in the court are tried, the party excepting being the plaintiff on whom shall rest the burden of proof. On the hearing, the court may confirm or set aside the report, as the right may appear. (b) But if the exceptions relate to the exemption of personal property and are based on the ground that it is excessive or insufficient, the court, if the exceptions are sustained, must not set aside the report, but shall ascertain the amount of such excess or insufficiency and, if excessive, shall order the restoration to the personal representative of property sufficient in value to cure the excess, describing the same, and shall enforce such order by a writ of restitution; but, if insufficient, the court shall order the personal representative to deliver to the party, or parties thereto entitled property sufficient to make up the deficiency, and the personal representative shall forthwith obey such order and report to the court the property so delivered by him and its value. (Code 1886, §§2555, 2556; Code 1896, §§2085, 2086; Code 1907, §§4212, 4213; Code 1923, §§7935, 7936; Code 1940, T. 7, §§678, 679.)
Section 6-10-89
Report of appraisers or commissioners - Proceedings when report set aside. If the report is set aside, the court must appoint three commissioners who shall allot and set apart such exemptions and report the same to the court under the provisions of this division, when the same proceedings may be had as on the report first made and so on until the exemptions are finally allowed. (Code 1886, §2557; Code 1896, §2087; Code 1907, §4214; Code 1923, §7937; Code 1940, T. 7, §680.)
Section 6-10-90
Report of appraisers or commissioners - Taxation of cost on exceptions being filed.
If the exceptions are filed by the surviving spouse or on behalf of the minor child or children and are not sustained, the costs shall be taxed against the surviving spouse or the next friend of the child or children, or against both if they are joined in the exceptions, and in all other cases against the unsuccessful party. (Code 1886, §2558; Code 1896, §2088; Code 1907, §4215; Code 1923, §7938; Code 1940, T. 7, §681.)Section 6-10-91
Report of appraisers or commissioners - Appeal from decree on exceptions.
From the decree of the probate court pronounced on such exceptions, either party feeling aggrieved may within 42 days appeal to the supreme court by filing a notice of appeal with the probate court. Such appeal shall be taken in accordance with the Alabama Rules of Appellate Procedure. (Code 1876, §2841; Code 1886, §2559; Code 1896, §2089; Code 1907, §4216; Code 1923, §7939; Code 1940, T. 7, §682.)
Section 6-10-92
Exceptions to report of appraisers that homestead does not exceed allowance.
When the report of the appraisers shows that the homestead does not exceed in value $6,000, exceptions may be filed thereto by the personal representative or other person in adverse interest; and, if such exceptions are filed, proceedings may be had thereof as in case of a report allotting or setting apart the homestead. (Code 1886, §2560; Code 1896, §2090; Code 1907, §4217; Code 1923, §7940; Code 1940, T. 7, §683; Acts 1951, No. 911, p. 1558, §1; Acts 1982, No. 82-399, p. 578, §8-102.)
Section 6-10-93
Confirmation of reports when no exceptions filed.
If no exceptions are filed to the report of the appraisers under the provisions of this division or to the report allotting or setting apart any homestead or other exemption within the time allowed for filing such exceptions, a decree must be entered confirming the report and allowing the exemption as reported. (Code 1886, §2561; Code 1896, §2091; Code 1907, §4218; Code 1923, §7941; Code 1940, T. 7, §684.)
Section 6-10-94
Reduced homestead incapable of allotment - Possession by surviving spouse and minor children until sold, etc.
When the homestead, after being reduced to its lowest practicable area, still exceeds $6,000 in value and no exemption in lieu of homestead has been obtained, the surviving spouse and minor child or children, or either, may retain the possession of the homestead as thus reduced, free from the payment of rent, until the same shall be sold or there is a division of the lands of the decedent; and in the event of a sale of such homestead in the course of administration, it shall be sold separately from the other lands of the decedent, if there be other. (Code 1896, §2092; Code 1907, §4219; Code 1923, §7942; Code 1940, T. 7, §685; Acts 1951, No. 911, p. 1558, §1.)
Section 6-10-95
Reduced homestead incapable of allotment - Sale - When allowed.
The homestead of a decedent may be sold by order of the court having jurisdiction of the estate, on petition of executor or administrator, when the same, after being reduced to its lowest area, exceeds $6,000 in value and when it is necessary that the same be sold for the payment of debts because the remainder of the estate is insufficient to pay all debts and claims against the estate and the surviving spouse or minor children fail to pay the deficiency within 30 days after notice of said petition. (Code 1923, §5850; Code 1940, T. 7, §686; Acts 1951, No. 911, p. 1558, §1.)
Section 6-10-96
Reduced homestead incapable of allotment - Sale - Proof of facts; order and notice; terms; application of proceeds.
The facts stated in the application to sell the homestead for setting apart of exemptions may be proved by the oral testimony of witnesses or by the records of the probate court, and if the facts stated in such application are proven to the satisfaction of the court by the evidence, the court may order the sale of said homestead, and notice of said sale shall be given as directed by Section 43-2-455. Said homestead must be sold on such terms as the court may direct, not exceeding a credit of three years, but in no case shall the cash payment be less than $6,000, and said sum of $6,000 shall, in the discretion of the court, be applied by the court to the purchase of a homestead for the benefit of such surviving spouse and minor children, or either of them, or be paid by the court to the surviving spouse for the use and support of said surviving spouse and minor child or children, or either, or, if no surviving spouse, to the guardian of said minors, upon such provisions, conditions, or limitations as to the court shall seem proper in the premises; provided, that the surviving spouse or guardian shall give bond in double the amount of said sum, with good and sufficient sureties to be approved by the court granting the decree, conditioned, as in the case of guardian and ward, that the said fund shall be faithfully kept and used exclusively for the support and maintenance of the surviving spouse and minor children and for the education of the minor children, if any. The surviving spouse or guardian, as the case may be, shall make an annual report to the court of all receipts and expenditures relating to said fund, which report is subject to the approval of the court. (Code 1923, §5860; Code 1940, T. 7, §687; Acts 1951, No. 911, p. 1558, §1.)
Section 6-10-97
Reduced homestead incapable of allotment - Sale - Proceedings when no bid in excess of $6,000 received.
(a) If, at such sale or any subsequent sale, no bid in excess of $6,000 is received, the representative must report that fact to the court; and thereupon the court must make an order directing the report to lie over 30 days, during which time any person interested in the sale may file written exceptions attacking the fairness of the sale, stating the grounds of such exceptions. Upon the filing of such exceptions, a day must be appointed to hear the same, 10 days' notice thereof given and other proceedings had as provided in this division for the hearing of exceptions to a report allotting homestead, so far as such provisions are applicable. (b) If, on the hearing of such exceptions, the court is satisfied from the evidence that the failure to obtain a bid of more than $6,000 was due to a want of fairness in the conduct of the sale or to fraud or collusion thereat, an order must be made directing a resale of such homestead, but if no exceptions are filed and sustained to such report, the court must make an order revoking the order of sale of the homestead and setting apart such homestead to the surviving spouse and minor child or children, or either, as the case may be. (Code 1896, §§2095, 2096; Code 1907, §§4222, 4223; Code 1923, §§7946, 7947; Code 1940, T. 7, §§692, 693; Acts 1951, No. 911, p. 1558, §1.)Section 6-10-98
Reduced homestead incapable of allotment - Sale - Purchase by persons entitled to homestead exemption.
When the purchase of such homestead is by or on behalf of the persons entitled to the homestead exemptions, the sum of $6,000 need not be actually paid to the representative, but, if the sale is confirmed, may be credited on the bid; and on the payment of the residue of such bid, a proper conveyance must be made to them as such purchasers, vesting the title in the persons entitled to the exemption, share and share alike, and be held and governed by Section 6-10-60. (Code 1896, §2094; Code 1907, §4221; Code 1923, §7945; Code 1940, T. 7, §691; Acts 1951, No. 911, p. 1558, §1.)
Section 6-10-99
Payment by devisees to clear property of homestead right.
Where a homestead right exists in property devised by will, the person or persons to whom said property is devised may clear the said property of such homestead right by paying to the personal representative, in lieu of such right, the sum of $6,000. Said sum shall be held and used by such personal representative in all respects as provided in Section 6-10-96 where land incapable of allotment is ordered to be sold. Said personal representative shall report the payment of said funds and how he has disposed of same to the probate court having jurisdiction of said estate, which report must be filed and recorded. (Code 1923, §7944; Code 1940, T. 7, §689; Acts 1951, No. 911, p. 1558, §1.)
Section 6-10-100
Proceedings to set apart exemptions when administration not granted on decedent's estate within 60 days after death - Generally. (a) When the property, real or personal, owned by a decedent at the time of his death does not exceed in amount and value the exemption allowed in favor of his or her surviving spouse and minor child or children, or either, and no administration is granted on his estate within 60 days after his death, the probate court of the county in which he resided at the time of his death, upon the application of the surviving spouse or, if there is no surviving spouse or he or she does not act, upon the application of a suitable person who shall be appointed by the judge of probate as the next friend of such minor child or children, verified by oath and setting forth such facts, as well as the names, condition, and residence, if known, of the heirs of the decedent other than the minor children of the decedent, must appoint two commissioners, who shall make a full and complete inventory and appraisement of the real or personal property, or both, of such decedent, describing the property and stating the value of each item or parcel thereof. In estimating the value of such property, or any part thereof, if the same is held in pledge or under mortgage or other lien or encumbrance created prior to the death of the decedent, such encumbered property must be valued at only the excess of its value over and above the sum of such liens or other encumbrances. (b) If such property, real or personal, or both, does not exceed in amount or value the exemptions allowed in such property, the commissioners must set apart the same to the surviving spouse and minor child or children, or either, as exempt from administration; and within 10 days thereafter, they shall return to the court the inventory and appraisement, with a report of their action in the premises. Exceptions to such report may be filed, heard, and determined as in other cases of exceptions to reports setting apart exemptions. (Code 1886, §§2562, 2563; Code 1896, §§2097-2099; Code 1907, §§4224-4226; Code 1923, §§7948-7950; Code 1940, T. 7, §§694-696; Acts 1947, No. 132, p. 41.)
Section 6-10-101
Proceedings to set apart exemptions when administration not granted on decedent's estate within 60 days after death - Vesting of title to real property in surviving spouse and minors and right to possession thereof. If no exceptions are filed and sustained to such report of the commissioners setting apart the homestead exemption, the title to the real property so set aside shall vest in the surviving spouse and minors, share and share alike, but only during the life of the surviving spouse and minority of the children. If all the real property left by the decedent in this state does not exceed in area and value the homestead allowed by law as exempt, title to all such real property shall vest absolutely in the surviving spouse, the children (minors and adults) and the descendants of deceased children, or, if there is no surviving spouse, in the children and the descendants of deceased children, or, if there are no children or descendants of deceased children, in the surviving spouse; provided, that when the homestead is so vested and there are a surviving spouse and minor children, the surviving spouse and minor children shall be entitled to the exclusive possession of such real property for the life of the surviving spouse and the minority of the children; where there are both minor and adult children, the minor children shall be entitled to the exclusive possession of such real property during their minority; and where there is a surviving spouse but no minor children, such surviving spouse shall be entitled to the exclusive possession of such property during his or her life. The homestead so vested shall not be sold for division during the life of the surviving spouse and the minority of the child or children of the decedent without the consent of the surviving spouse and the legally appointed representative of the minor child or children. (Code 1896, §2100; Code 1907, §4227; Code 1923, §7951; Code 1940, T. 7, §697; Acts 1947, No. 216, p. 88; Acts 1951, No. 911, p. 1558, §1; Acts 1953, No. 837, p. 1128, §2.)
Section 6-10-102
Effect of removal from homestead.
When homestead exemption has been allotted to the surviving spouse and minor child or children, or either, under any of the provisions of this division, they shall not be held to have abandoned or forfeited the same by a removal therefrom. (Code 1896, §2101; Code 1907, §4228; Code 1923, §7952; Code 1940, T. 7, §698.)
Section 6-10-103
Commissioners - Qualifications; oath..
Commissioners appointed to allot or set apart homestead or other exemptions under this division must be disinterested householders or freeholders of the county and, before executing their commission, must be sworn by some officer authorized to administer oaths, or by one of themselves, to faithfully discharge the duties for which they were appointed. (Code 1886, §2565; Code 1896, §2102; Code 1907, §4229; Code 1923, §7953; Code 1940, T. 7, §699.) .
Section 6-10-104
Commissioners - Compensation..
Commissioners appointed under the provisions of this division shall be entitled to compensation for their services at the rate of $2 per day during the time they are actually engaged. (Code 1886, §2566; Code 1896, §2103; Code 1907, §4230; Code 1923, §7954; Code 1940, T. 7, §700.) .
Section 6-10-105
Recordation of judgments allotting homestead exemptions; fee therefor..
All judgments or decrees allotting homestead exemptions to surviving spouses and minors may be recorded in the probate office as other deeds and conveyances are recorded and in the books of record for recording deeds, so as to show the chain of title to the lands so allotted; and the probate judge shall be allowed the same fees as for the recording of other conveyances. (Code 1923, §7955; Code 1940, T. 7, §701.) .Section 6-10-106
Proceedings to set aside exemptions when husband, wife or parent absent seven years and residence not ascertainable - Generally. (a) When the real and personal property owned by an absent husband, wife or parent who has not been heard from and whose residence has been unknown for seven years and whose residence cannot be ascertained by diligent inquiry does not exceed in amount and value the exemptions allowed in favor of his or her surviving spouse and minor child or children, or either, the probate court of the county in which he or she resided before leaving his or her spouse or children, upon the application of the deserted spouse or, if there is no spouse or he or she does not act, upon the application of the guardian or of a suitable person who shall be appointed by the judge of probate as next friend of such minor children, verified by oath and setting forth such facts, must appoint two commissioners, who shall make a full and complete inventory and appraisement of the real and personal property of such absent husband or wife and parent, describing the property and stating the value of each item or parcel thereof. In estimating the value of such property, or any part thereof, if the same is held in pledge or under mortgage or other lien or encumbrance created prior to the commencement of the absence of the said husband, wife, or parent, such encumbered property must be valued at only the excess in its value over and above the sum of such lien or encumbrance. (b) If such property, real or personal, or both, does not exceed in amount or value the exemptions allowed a surviving spouse and minor children in such property, the commissioners must set apart the same to the said deserted spouse and minor children, or either; and within 10 days thereafter, they shall return to the court the inventory and appraisement, with a report of their action in the premises. Exceptions to such report must be filed, heard, and determined as in other cases of exceptions to reports setting apart exemptions. (Acts 1923, No. 368, p. 388; Code 1923, §§7957, 7958; Code 1940, T. 7, §§703, 704.) .
Section 6-10-107
Proceedings to set aside exemptions when husband, wife or parent absent seven years and residence not ascertainable - Vesting for life of title to property in deserted spouse or minors. If no exceptions are filed and sustained to such report of the commissioners setting apart exemptions and it is determined that the property set apart was all the property owned by the absentee spouse at the time he or she left and that he or she left less property than was exempt to a surviving spouse and minor children of decedents, the title to the property so set aside, whether real or personal, shall vest for the life of the deserted spouse or the minority of the children, whichever may last terminate. (Acts 1923, No. 368, p. 388; Code 1923, §7959; Code 1940, T. 7, §705; Acts 1951, No. 911, p. 1558, §1.)
Article 3 Waiver of Right to Exemptions
Section 6-10-120
Right to waive.
Any person, by an instrument in writing, may waive his or her right to an exemption in any property exempt from levy and sale under execution or other process. (Code 1876, §2846; Code 1886, §2567; Code 1896, §2104; Code 1907, §4231; Code 1923, §7960; Code 1940, T. 7, §706.)
Section 6-10-121
How made - Personalty.
As to personal property, the waiver may be made by a separate instrument in writing, subscribed by the party making the same, or it may be included in any bond, bill of exchange, promissory note or other written contract executed by him or her. (Code 1876, §§2847, 2848; Code 1886, §2568; Code 1896, §2105; Code 1907, §4232; Code 1923, §7961; Code 1940, T. 7, §707.)
Section 6-10-122
How made - Homestead.
As to the homestead, the waiver must be by a separate instrument in writing, subscribed by the party making the same and attested by one witness. If such party is a married man, such waiver shall not be valid without the voluntary signature and assent of the wife and acknowledgment by her before an officer authorized to take acknowledgments in the form of the individual acknowledgment prescribed by this Code. If such party is a married woman, such waiver shall be executed only in the mode prescribed by Section 30-4-12 for the alienation of her lands. (Code 1876, §§2847, 2848; Code 1886, §2569; Code 1896, §2106; Code 1907, §4233; Code 1923, §7962; Code 1940, T. 7, §708; Acts 1951, No. 84, p. 301.)
Section 6-10-123
Enforcement in action.
In any civil action, in which a waiver of the right of homestead or other exemption is sought to be enforced, the fact of waiver and its extent must be averred in the complaint or petition and by appropriate pleading may be controverted. If such averment is sustained, the fact of waiver and its extent must be declared in the judgment and endorsed on the execution or other process issued thereon. Such waiver shall extend to the costs of the action. (Code 1876, §2849; Code 1886, §2570; Code 1896, §2107; Code 1907, §4234; Code 1923, §7963; Code 1940, T. 7, §709.)
Section 6-10-124
Attachment - Endorsement on writ.
When such action is commenced by attachment or, in aid thereof, an ancillary attachment is sued out, the officer issuing the writ of the plaintiff, in person or by his agent or attorney, producing before him the written evidence of the waiver or making and filing with him an affidavit that the exemption has been waived, must endorse on the writ the fact of such waiver and the extent thereof. (Code 1876, §2850; Code 1886, §2571; Code 1896, §2108; Code 1907, §4235; Code 1923, §7964; Code 1940, T. 7, §710.)
Section 6-10-125
Attachment - Proceedings when waiver not sustained.
When such attachment is levied on property embraced in a declaration of claim of exemption which has been filed for record, or subsequent to the levy a claim to such property as exempt is interposed, if, on the trial, the averment of waiver is not sustained, the levy shall be discharged and the property returned to the defendant, unless the plaintiff, within five days after judgment, shall contest the claim. If such plaintiff should desire to contest, such contest may be instituted and prosecuted as in other cases. (Code 1886, §2572; Code 1896, §2109; Code 1907, §4236; Code 1923, §7965; Code 1940, T. 7, §711.)
Section 6-10-126
Exceptions.
(a) No waiver of exemption in any written instrument shall be held to apply to or include or authorize the levy of an execution or attachment on any of the following property for any debt contracted: (1) Cooking utensils, cooking stoves, table, tableware, chairs, bed and bed clothing in actual use by the family; (2) Wearing apparel; (3) A vehicle used by and essential to the debtor's business; (4) Tools used personally by and essential to the debtor's business; (5) The library of the debtor. (b) Any levy upon such property is absolutely void. (c) This section shall not apply to such property set out in subdivisions (3) and (4) of subsection (a) pledged in a consensual security agreement. (Code 1907, §4237; Acts 1915, No. 797, p. 916; Code 1923, §7966; Code 1940, T. 7, §712; Acts 1984, No. 84-381, p. 890.)
