Alabama § 6-10-38 - Contest of Exemption Claim - Proceedings When Homestead Found to Exceed Value or Size Allowed.

§ 6-10-38. Contest of Exemption Claim - Proceedings When Homestead Found to Exceed Value or Size Allowed.

(a)(1) If, on the trial of a contest of a claim of homestead exemption, it is found that the homestead as claimed exceeds the value and size limits set forth in this article, the court shall immediately issue an order to the sheriff, returnable no later than 30 days from issuance, commanding him or her to summon three disinterested householders or freeholders of the county in which the homestead is located to serve as commissioners. These individuals, after having been sworn by the sheriff or an authorized officer to administer oaths to faithfully discharge their duty, if possible, shall set off and define, by metes and bounds, the homestead exempt from levy and sale under process, considering the quality and value of the real estate, the defendant’s selection, and the proximity to the dwelling, including the dwelling and appurtenances. The commissioners, as soon as practicable shall make a written report of the homestead they have allotted and set off, signed by them, to the sheriff who shall submit the report to the court issuing the order. The homestead, once allotted and set off, shall be released from the levy and the remaining land sold under the order of the court, unless the court finds good cause to set aside the commissioners’ report, in which event a new order to summon commissioners shall be issued.

(2) If the individuals summoned to serve as commissioners fail to act, the sheriff shall summon others to fill their places.

(b) If the homestead, after being reduced to its smallest practical size, still exceeds the value exemption limits set forth in this article thereby rendering it impracticable to allot and set the parcel off under this section, the commissioners shall make a report to the sheriff. The sheriff shall then proceed, as in other cases, to advertise and offer the property for sale. If, at the sale, he or she receives a bid exceeding the value limits set forth in this article, he or she shall sell the property, and an amount equal to the exemption allowed under this article shall be paid to the defendant, divided between the spouses if a husband and wife have both claimed the exemption, or paid into the court in lieu of the homestead. The excess shall be applied to the satisfaction of the debt. If there are no bids in excess of the exemption allowed under this article, the sheriff shall discharge the levy at the plaintiff’s cost and return the process. Subsequently, no process issued to enforce the plaintiff’s demand shall be levied on such homestead so long as it continues as a homestead, except by a written demand of the plaintiff accompanied by an offer in writing to purchase the homestead for an amount exceeding the exemption allowed under this article. This 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) and any defendant dies before receiving his or her homestead exemption payment, the payment shall be paid to his or her personal representative, who shall receive and hold the exemption payment subject to the homestead rights of the defendant’s surviving spouse and minor child or children, or either. If there is no surviving spouse or minor children, the personal representative shall first apply the exemption payment to the payment of the debt and the balance he or she shall administer as personal assets of the estate.