(a) The probate court shall have original and general jurisdiction as to all matters mentioned in this section and shall have original and general jurisdiction as to all other matters which may be conferred upon them by statute, unless the statute so conferring jurisdiction expressly makes the jurisdiction special or limited.

(b) The probate court shall have original and general jurisdiction over the following matters:

(1) The probate of wills.

(2) The granting of letters testamentary and of administration and the repeal or revocation of the same.

(3) All controversies in relation to the right of executorship or of administration.

(4) The settlement of accounts of executors and administrators.

(5) The sale and disposition of the real and personal property belonging to and the distribution of intestate's estates.

(6) The appointment and removal of guardians for minors and persons of unsound mind.

(7) All controversies as to the right of guardianship and the settlement of guardians' accounts.

(8) The allotment of dower in land in the cases provided by law.

(9) The partition of lands within their counties.

(10) The change of the name of any person residing in their county, upon his filing a declaration in writing, signed by him, stating the name by which he is known and the name to which he wishes it to be changed.

(11) Such other cases as jurisdiction is or may be given to such courts by law in all cases to be exercised in the manner prescribed by law.

(c) All orders, judgments and decrees of probate courts shall be accorded the same validity and presumptions which are accorded to judgments and orders of other courts of general jurisdiction.

In all cases in the probate court where a jury may be called to try contested facts, changes of venue may be had as in cases of contested wills and all the provisions as to changes of venue in cases of contested wills shall apply to changes of venue under this section.

(a) On motion filed within 30 days from entry of judgment, a new trial may be granted for the following grounds:

(1) Irregularity in the proceedings of the court, jury or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial.

(2) Misconduct of the jury or prevailing party.

(3) Accident or surprise, which ordinary prudence could not have guarded against.

(4) Excessive or inadequate damages.

(5) Error in the assessment of the amount of recovery, whether too large or too small where the action is upon a contract or for the injury or detention of property.

(6) The verdict or decision is not sustained by the great preponderance of the evidence or is contrary to law.

(7) Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

(8) Error of law occurring at the trial and properly preserved by the party making the application.

(b) The court, in granting new trials, may allow the same upon the payment of such costs by party applying therefor, as the justice and equity of the case may require, taking into consideration the causes which may make such new trial necessary.

The provisions of this code in reference to evidence, pleading and practice, judgments and orders in the circuit court, so far as the same are appropriate, and the mode of obtaining evidence by oral examination or by deposition and of compelling the attendance of witnesses and of enforcing orders and judgments, in the absence of express provision to the contrary, are applicable to the proceedings in the probate court.

The chief clerk of the probate court, before he enters upon his duties, must take the oath directed to be taken by the officers of this state and give bond, with surety, payable to the probate judge, in such sum as he may prescribe, upon which bond such clerk shall be liable to such judge inconsequence of any act of misfeasance or malfeasance of such chief clerk in the duties of his office, which bond must be approved by the probate judge and filed and recorded in the office of the clerk of the circuit court of the county.

(a) The chief clerk shall have the following powers:

(1) To issue letters testamentary, of administration and of guardianship, where there is no contest.

(2) To administer oaths relating to the business of the court and to take and certify acknowledgments and proof of instruments authorized to be recorded.

(3) To solemnize matrimony, approve bonds and appoint guardians ad litem.

(4) To admit wills to probate and record and to pass and allow accounts of executors, administrators and guardians, where there is no contest.

(5) To do all other acts and things and perform all other duties, ministerial and judicial, where there is no contest, that the probate judge may do and perform.

(b) All of the official acts of such chief clerk must be performed in the name of the probate judge, except when there is a vacancy in that office.

Whenever a vacancy shall occur in the office of the probate judge, the chief clerk in that office, appointed and qualified as authorized by law, shall, during such vacancy and until the qualification of a lawful successor, perform all the duties of that office which he is authorized by law to perform when there is no vacancy, but must not receive money on decrees or executions or become the custodian of trust funds pertaining to the court. He may make all necessary orders for the continuances of cases and proceedings pending in the court.

All such duties are to be performed, during such vacancy, by such chief clerk in his own name as clerk of the probate court, and he is entitled to the lawful fees therefor. For his official acts under this article, such chief clerk and the sureties on his bond to the probate judge shall be liable to persons injured according to the legal effect of official bonds as declared by statute.

No probate judge or his clerk or any register shall prepare or assist in the preparation of any paper, document or instrument which is to be heard or determined by such judge or register or which may become a subject of controversy before such judge or register, but such judge or his clerk may prepare or assist in the preparation of acknowledgments and proof of conveyances, affidavits, oath, affirmations or any instrument which by law is required to be prepared by such judge.

Any probate judge or his clerk or any register who shall prepare or assist in the preparation of any paper, document or instrument in violation of this section shall be guilty of a misdemeanor and shall forfeit the sum of $300.00, one third to the use of the state and two thirds to the use of any person who may institute a civil action for the same; provided further, that any citizen of the county in which the violation may occur may institute a civil action, in his own name, for this penalty in the circuit court of said county.

For a failure to make money on or for failing to return any execution issued from or returnable to the probate court or for not paying over money collected on such execution, the sheriff, coroner or other officer and his sureties are liable to the same penalties and judgments as in like cases in the circuit court, the proceedings to be instituted and conducted in the probate court in the same manner as in the circuit court, either party having the right, on request, to a trial of all questions of fact by a jury, and an appeal from the judgment entered may be taken to the circuit or Supreme Court.

Any clerk or person in the office of the probate judge who obtains possession of the books, papers, money or property belonging or appertaining to such office pending a vacancy therein and who fails or refuses on demand to deliver such books, papers, money or property to the lawfully qualified successor of the probate judge must, on conviction, be fined not less than $200.00.

(a) The judge of probate of each county may be entitled to receive from the county treasury payment for expenses, including, but not limited to, membership dues and other expenses, incurred in attending state or national conferences, schools and other functions attended by said judge, including, but not limited to, the personnel in his or her office, pertaining to his or her official position of judge of probate, which payment shall be in addition to all other compensation and allowances now provided by law. Such payments shall be paid on warrants approved by the county commissions of each county drawn on any funds in the county treasury not otherwise appropriated.

(b) Membership dues and fees may be paid by remittance to the secretary/treasurer of such organization upon presentation of a statement therefor.

(c) Expenses may be remitted directly to the individual concerned upon presentation of an itemized statement, supported by receipts, indicating actual expenses incurred. Such statement may be properly sworn to and notarized.

(d) In counties wherein supplements or expenses are presently paid to the judge of probate and personnel in his or her office for expenses as described in subsection (a) of this section, whether paid through the authority of local or other laws of the State of Alabama, such expenses described in subsection (a) of this section may be paid by the governing body of the county, but in no circumstance may such expenses be paid or reimbursed more than once under authority granted by this or previous laws of the State of Alabama.

Any person in any branch of service of the government of the United States of America, including those in the military, air and naval service, and the husband or wife of any such person, if he or she dies while living within the borders of the State of Alabama, shall be deemed prima facie to be a resident and inhabitant of the State of Alabama and of the county in which he or she was living at the time of his or her death for purposes of general probate jurisdiction, including the probation of his or her will and the granting of letters testamentary or of administration upon his or her estate.

(a) No probate judge who is on a salary and who serves as chairman of the county commission shall receive total compensation less than $35,000.00 per year beginning on October 1, 1985 and less than $40,000.00 per year beginning on October 1, 1986, for serving as chairman and probate judge. This section in no way affects probate judges earning more than $35,000.00 per year on October 1, 1985 and more than $40,000.00 per year on October 1, 1986.

(b) No probate judge who is on a salary and who does not serve as chairman of the county commission shall receive total compensation less than $32,500.00 per year beginning on October 1, 1985 and less than $37,500.00 per year on October 1, 1986. This section in no way affects probate judges earning more than $32,500.00 per year on October 1, 1985 and more than $37,500.00 per year on October 1, 1986.

(c) On October 1, 1990, and on October 1, 1991, and on October 1, 1992, each probate judge in this state who is paid on a salary basis shall receive an additional annual salary increase of $5,000.00 on each of said three dates, for a total increase of $15,000.00 over the said three year period, payable on and after October 1, 1992.

(d) No probate judge who is on a salary and who serves as chairman of the county commission shall receive total compensation more than $55,000.00 per year beginning on October 1, 1990. This section in no way affects probate judges earning more than $55,000.00 per year on October 1, 1990.

(e) No probate judge who is on a salary and who does not serve as chairman of the county commission shall receive total compensation more than $52,500.00 per year beginning on October 1, 1990. This section in noway affects probate judges earning more than $52,500.00 per year on October 1, 1990.

(f) Any necessary funds needed to ensure a probate judge shall receive the total respective compensations herein provided shall be paid out of the respective county's general fund.

(g) The provisions of this section shall not affect the compensation of probate judges of counties where said judges are compensated on the basis of the fee system.

(a) The term "developmentally disabled" person, means a person whose impairment of general intellectual functioning or adaptive behavior meets the following criteria:

(1) It has continued since its origination or can be expected to continue indefinitely.

(2) It constitutes a substantial burden to the impaired person's ability to perform normally in society.

(3) It is attributed to one or more of the following:

a. Mental retardation, cerebral palsy, epilepsy, or autism.

b. Any other condition of a person found to be closely related to mental retardation because it produces a similar impairment or requires treatment and services similar to those required for a person who is mentally retarded

c. Dyslexia resulting from a condition described in subparagraph a or b.

(b) Guardianship for a developmentally disabled person shall be utilized only as is necessary to promote and protect the well being of the person, including protection from neglect, exploitation, and abuse; shall be designed to encourage the development of maximum self-reliance and independence in the person; and shall be ordered only to the extent necessitated by the person's actual mental and adaptive limitations.

The court may appoint as guardian for a developmentally disabled person any suitable person or agency, public or private, including a private association or nonprofit corporation capable of conducting an active guardianship program for a developmentally disabled person. The court shall not appoint the Department of Mental Health and Mental Retardation as guardian or any other agency, public or private, that is directly providing services to the developmentally disabled person.

(c) A petition for the appointment of a guardian for an individual who is developmentally disabled may be filed with the probate court by an interested person or entity or by the individual. "Interested person or entity" shall mean an adult relative or friend of the respondent, an official or private agency, corporation, or association concerned with the person's welfare, or any other person found suitable by the court.

The probate court shall at all times be considered as open, except on Saturdays, Sundays and holidays, with authority to do all things needful in relation to granting letters testamentary or of administration or guardianship and all matters pertaining thereto and making all other necessary orders which are grantable as a matter of course.

In all cases, any order or decree may be set aside or amended and the case reopened within 30 days after the rendition thereof by the judge of the court in which said decree was rendered or said order was made.

A probate judge shall be elected by the qualified voters of each county, who shall hold office for a term of six years from the first Monday after the second Tuesday in January next after his election and until his successor is elected and qualified.

A probate judge must be a citizen of the state and must have resided in the county for which he is elected or appointed for one year preceding the election or appointment.

Vacancies in the office of probate judge shall be filled by the Governor, and the person appointed shall hold office until the election and qualification of his successor.

The official bond of the probate judge shall be determined by the use of the following table based on a percentage of the total annual collections recorded in the latest audit report for each office published at least four months prior to the date the bond is required to be filed:

Civil actions may be instituted on all bonds given by a probate judge by anyone sustaining any injury by reason of any neglect or omission of such officer to take good and sufficient surety from any executor, administrator or guardian or from any officer whose bond it is his duty to approve or in any case in which it is his duty to require additional bond and he fails so to do or by the failure of such judge to perform any other official duty or by reason of the commission by him of any wrongful act in the performance of his official duties or under color of his office.

The probate judge shall have a seal of office.

The probate judge shall keep his office at the courthouse, and, unless otherwise provided by a local law, the office of the probate judge shall be kept open for transaction of business on every day, except Sundays and legal holidays, from 9:00 A.M. until 4:00 P.M.

If in any matter or proceeding arising in the probate court or in reference to which the judge thereof is required to exercise jurisdiction or authority or to perform a duty the judge is incompetent for any legal cause or shall be absent, sick or otherwise disqualified from acting, he or his chief clerk must certify the fact of incompetency, absence, sickness or disqualification to the Chief Justice of the Alabama Supreme Court, and the Supreme Court shall, upon such certificate, appoint a person possessing the qualifications of a probate judge to act as special probate judge.

Such special judge in relation to such matter or proceeding shall have the jurisdiction and authority and discharge the duties of the probate judge, and the judgments, orders and decrees made or rendered by him shall be entered on the records of such court and shall have the force and effect and shall be subject to revision on appeal or by other revisory remedy, of judgments, orders and decrees of such probate court.

If the special judge so appointed fails or refuses to act or, having commenced to act and before finally concluding or determining such matter or proceeding, dies, becomes incompetent or fails or refuses to continue acting therein, the incompetency, absence, sickness or other disqualification of the probate judge continuing, the Alabama Supreme Court, upon the facts being certified to it, shall appoint another special judge of like qualification.

Probate judges shall be conservators of the peace in their respective counties.

In all counties in this state where terms of the probate court are held at places other than the county seat, the probate courts of such counties may try any case, sign any order, judgment or decree arising in said county and hear and determine any matter, case or proceedings at any time at either the county seat or at any place other than the county seat where such matter, case or proceedings may be legally heard, tried or determined.

The probate judge shall have authority:

(1) To administer oaths and take and certify the same in all cases in which administering such oath and taking such affidavit is not confined expressly to some other officer;

(2) To cause jurors to be impaneled and sworn in any matter of fact pending before him in which the right to a jury trial is given by law;

(3) To appoint guardians ad litem for minors and persons of unsound mind, when necessary, but he must not appoint as such guardian any clerk, employee or other person connected with his office or related to him by consanguinity or affinity;

(4) To employ, at his own expense a chief clerk and such other clerks as he deems necessary, for whose official acts he shall be responsible;

(5) To complete the minute entries and decrees of the court when the same are incomplete on account of the failure to make necessary entries at the time when they should have been made, but the necessary application and proof must first be made, and such entries, orders or decrees shall be as valid and binding as if they had been made at the proper time;

(6) To authorize the making of an abstract of title of lands sold at judicial sale as provided in Section 6-8-30; and

(7) To exercise such other powers as are or may be conferred on him by law.

It shall be the duty of the probate judge:

(1) To issue all citations, letters testamentary, of administration and guardianship, subpoenas, executions and all other process which is necessary for the exercise of his powers, the jurisdiction of the court and the enforcement of its judgments, orders and decrees.

(2) To keep minutes of all his official acts and proceedings and, within three months thereafter, to record the same in well-bound books.

(3) To keep all the books, papers and records belonging to his office with care and security, the papers arranged, filed and labeled so as to be of easy reference and the books and records lettered and kept with general, direct and reverse indexes, but, without the authority of the county commission, he shall not make new indexes.

(4) To keep constantly in his office a well-arranged docket, showing the date of the issue and return of all process, the day set for the hearing, the kind of notice ordered, the returns of the sheriff and such other entries as may be necessary to show the true condition of all proceedings pending in the court and all fees accruing in the case and to whom due.

(5) To keep a correct account of the fees accruing to the sheriff or services of notices, citations and other process in relation to the estates of deceased persons and minors; he may receive and receipt for such fees and must, on demand, pay the same to the sheriff, and before the final settlement of any estate is allowed, the fees of the sheriff, or such part thereof as he is entitled to receive, must be paid.

(6) To enter on the fee-book, execution docket and on the execution the name of the attorney of the plaintiff in the judgment.

(7) To give transcripts of any paper or record required to be kept in his office, properly certified, on application of any person and the payment or tender of the lawful fees.

(8) To keep the acts, reports and digests furnished by the state to the county in his office or in the bar library, if there is one in the county, convenient to his office, except when delivered to the sheriff for the use of the circuit court.

(9) To have suitably bound, at the expense of the county and for the payment of which binding the county commission must issue a warrant on the county treasury, the reports of the census enumerators of the county, and he must keep such reports in the office, open to examination without charge.

(10) To provide a suitable and convenient place in the office for keeping the United States census reports and to preserve such reports, giving free access to them.

(11) To keep large and well-bound books for the registration of deeds of conveyance and other and separate books of like character for the registration of mortgages and other instruments to secure the payment of debts.

(12) To keep a large and well-bound book for the registration of liens of judgments and decrees, with direct and reverse indexes thereto.

(13) To keep a well-bound book for the registration of notice of the adverse possession of lands, with a proper index thereto.

(14) To perform such other duties as are or may be required of him by law.

(15)a. The probate judge of Elmore County in conformity to the duties set out in this section shall maintain a general register for all transactions now recorded by the probate office and having a general direct and general reverse index for every instrument filed. Specifically included in the general register are those instruments described in subdivision (11) (deeds and mortgages, etc.); subdivision (13) (adverse possession); Section 35-4-52 (bankruptcy petitions); Section 35-4-53 (bonds for title); Sections 35-4-69 and 35-4-71 (affidavits relative to chain of title of land); Section 35-4-76 (options to buy land); Section 35-4-90 (agreements to convey land); Section 35-4-91 (wills which convey real property); Section 35-4-130 (lis pendens and hospital liens); Sections 36-5-3, 36-5-4, 36-5-5, and 36-5-6 (official bonds, notary bonds and oaths of office); Section 10-2B-1.25 (corporations); Section 10-4-26 (church minutes which grant trustees the authority to convey land); Section 6-9-210 (liens of judgment); subsection (d) of Section 40-1-2 (tax liens); military discharges; medical records and any and all other miscellaneous documents may be so registered at the discretion of the probate judge.

b. These instruments excluded from this subsection, mainly subdivisions (2) and (3) (minutes of official acts); subdivision (4) (probate docket); Section 43-2-502 (final settlements); Sections 18-1A-93 and 18-1A-282 (condemnation orders); Section 40-10-15 (tax sales); subsection (a) of 35-2-51 (plats); Section 12-19-45 (fees), shall be maintained as specified by the heretofore existing laws.

c. Each instrument contained in the general index shall be numbered consecutively and filmed.

At the time of settlement, either partial or final, by a guardian of a beneficiary of the United States Veterans Administration and upon request of counsel of such agency, it shall be the duty of the probate judge in whose court the settlement is had and passed to furnish to the United States Veterans Administration a certified copy of the decree of the said court on the guardian's settlement without cost to said United States Veterans Administration. For furnishing such certified copy the probate judge is authorized to collect from the guardian the fee now allowed by law for furnishing a copy of such decree on settlement by a guardian.

The probate judge of each county in this state shall keep in his office four well-bound books of suitable size and grade of paper in which to make a general direct and a general reverse index of each instrument filed for record in his office, and two of said books shall be used for conveyances of real property and two for conveyances of personal property and all other instruments entitled to record in his office. In the general direct indexes he shall enter, in regular alphabetical order, under appropriate title, the name of each maker of the instrument, the name of each person to whom made, the date and character of such instrument and the date filed for record; and, in the general reverse indexes, in like alphabetical order, under its appropriate title, he shall enter the name of each person to whom the instrument is made, the name of each person by whom the instrument is made, the date and character of such instrument and the date filed for record. Instruments containing conveyances of both real and personal property shall be entered upon each set of indexes.

Immediately on receipt of any instrument to be recorded, the probate judge shall make the entries required by this section; and, after recording the instrument, the books and page in which the record is made shall be noted opposite each name thus placed in such general direct and in such general reverse indexes.

Failure to comply strictly with the provisions of this section shall subject the probate judge to a penalty of $100.00 for each failure, to be recovered by any person who institutes a civil action for the same, besides damages to any person injured by such failure.

It shall be the duty of the probate judges to make, on or before the tenth day of each month, to the State Department of Human Resources, reports on all adoptions handled by such courts during the preceding month. All reports required by this section shall be made upon forms furnished by the State Department of Human Resources.

The probate judge, deeming it necessary to recopy or rebind any books in his office, including maps or plats, in order to secure their contents from damage or loss must submit the same to the examination of the county commission, which, if it deem such rebinding or recopying necessary, must, upon its minutes, order the same to be made, and the probate judge must make the same in good and substantial books or binding and the county commission must allow him a reasonable compensation therefor.

If the county commission deems it advisable to rebind any of the books of the county, it shall be lawful for the probate judge to contract with a book bindery for the rebinding of such book, taking due precaution for the safety of the book and its due and proper return. For this purpose, the probate judge may surrender custody of a book for a period of not longer than 30 days.

Money due on decrees for the payment of money rendered against any executor, administrator or guardian on a partial or final settlement maybe paid to the probate judge, and it shall be his duty to pay over the same to the person entitled thereto on demand upon proper proof of identity or authority; and, for failure to do so, he shall incur a penalty in favor of the person entitled to the money of 10 percent damages, which, together with the money received and interest thereon, may be recovered by civil action on his bond.

The probate judge shall be entitled to one half of one percent for receiving money under Section 12-13-48, to be paid by the party from whom the same is received out of his own funds, and the probate judge shall not be bound to receive this money until such percentage is paid.

All letters testamentary, of administration and of guardianship and all process from the probate court shall be signed by the judge or his chief clerk, bear the date of the day of issue and conform, as nearly as possible, to those used in other courts in this state and shall be directed, executed and returned in like manner and under the same penalties unless otherwise provided by law.

The records of the office must be free for the examination of all persons when not in use by the judge, whether such persons are interested in such records or not.

Any probate judge who shall file for record or shall record any mortgage, deed of trust or other instrument in the nature of a mortgage without collecting the recording or registration tax provided for the recording or registration of such instruments or who shall fail to certify the fact that said tax has been paid before the filing and recording of such instrument shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $10.00 nor more than $100.00.

Any probate judge who fails to keep an abstract of mortgages or other instruments intended to secure the payment of money which are filed in his office for record, as he is required by law to keep, shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than $10.00 nor more than $500.00.

All executions and other process issuing from the probate court may be made returnable, if no other day is provided by law, not less than three nor more than six months after such issue.

The probate court may issue process of garnishment upon decrees for money, in favor of plaintiffs in such decrees, returnable within 30 days, upon compliance with the laws respecting garnishments in the circuit courts on judgments and may render judgments or decrees on the answers of such garnishees, enforce the collection thereof by execution, as may be necessary, and try all collateral issues that may grow out of the answers of such garnishees, both as to a contest of an answer or a claim of an alleged transferee.

All laws dealing with the eligibility of probate judges to assume duties and obligations, and to claim and receive benefits, as supernumerary probate judges are, as to all persons who were eligible to assume such duties and obligations and claim and receive such benefits as of October 1, 1976, continued in full force and effect, and shall not be repealed by the adoption of this code. But at such time as all persons who became vested with eligibility, either present or prospective, to assume duties and responsibilities, and to claim and receive benefits as, or, in the case of surviving spouses, on account of, supernumerary probate judges as of October 1, 1976, are deceased, all such laws shall thereupon be repealed.

The provisions of this code in reference to garnishments in the circuit court are applicable to garnishments in the probate court.

The probate court may issue show cause orders and attachment for contempts offered to the court or its process by any executor, administrator, guardian or other person and may punish the same by fine not exceeding $20.00 and imprisonment not exceeding 24 hours, or both.