Alabama Attorney General Opinion 1979-0020

# THE ATTORNEY GENERAL STATE OF ALABAMA · MONTGOMERY, ALABAMA 36130 79-00020 CHARLES A. GRADDICK ATTORNEY GENERAL January 25, 1979 File #19 1-26-79 Hon. Harry D'Olive Judge of Probate Baldwin County Courthouse Bay Minette, Alabama 36507 FILING TAX - DEEDS - JUDGES OF PROBATE Deed from executor to beneficiary which is necessary to convey title to real estate from testator to beneficiary subject to tax under §40-22-1, Code of Alabama 1975 Dear Judge D'Olive: Reference is made to your letter of October 19, 1978, in which you request the opinion of this office whether deed tax should be collected upon recordation of a deed, a copy of which was attached to your letter. This deed conveys certain real estate from the First National Bank of Mobile, as Executor under the will of Percival L. Wilson, to John Howard Wilson, son of the testator. Item 5 of said will gives to the son assets of the estate equal in value to $400,000.00. The executor is clothed with complete discretion in making the choice of assets and/or cash to be used in satisfying this bequest. Although the deed in question does not so state, it is assumed that the real estate conveyed represents a choice on the part of the executor of assets of testator to be used in satisfying all or part of the $400,000.00 bequest. Since the will itself did not designate the specific real estate to be used in satisfying the bequest, title to said real estate did not vest eo instanti the death of testator in the name of the beneficiary. Only upon designation of the executor could title to any real estate be passed from testator to beneficiary. It is, therefore, obvious that it required a deed from the executor to pass title to the beneficiary. Thus, the ratio decidendi of Hawkins v. Pure Oil Co., 232 Ala. 660, 169 So. 307, is applicable. See Quarterly Reports of the Attorney General, Vol. 6, p. 106; Vol. 8, p. 132; Vol. 16, p. 251; Vol. 53, p. 124. It is accordingly incumbent upon you to collect deed tax upon recordation of this deed. Yours very truly, CHARLES A. GRADDICK B. FRANK LOES Assistant Attorney General