Absent Transcript, Appellate Deference Controls: Circuit Courts May Not Recalculate Probate Administrator ad Litem Fees on Appeal Under § 12-22-20

Introduction

This commentary examines the Alabama Supreme Court’s decision in K. Nickie Bateman, Attorney at Law, as administrator ad litem for the Estate of Minnie Pearl Harvey, deceased v. Inez Lee (Supreme Court of Alabama, Aug. 29, 2025). The case sits at the intersection of probate administration and appellate procedure. It addresses how circuit courts must conduct appeals from probate orders under Ala. Code § 12-22-20, the ore tenus presumption, and the consequences of a missing transcript or Rule 10(d) statement. The factual setting involved a will contest that was voluntarily dismissed pursuant to a stipulation, an administrator ad litem appointment during the pendency of that dispute, and a subsequent disagreement over the administrator ad litem’s fees.

The central issues were:

Whether a circuit court, sitting as an appellate court under § 12-22-20, may reweigh evidence and set a different compensation rate for an administrator ad litem than that fixed by the probate court.
What deference is due a probate court’s fee award following an ore tenus hearing when the appellate record lacks a transcript or a Rule 10(d) statement.
How § 43-2-256 (compensation of administrators ad litem) operates alongside the probate court’s inherent duty to police reasonableness and the contractual stipulation that fees be paid from estate funds.

Summary of the Judgment

The Alabama Supreme Court reversed the Pike Circuit Court’s reduction of the administrator ad litem’s fee and remanded. The Court held:

Appeals from probate court to circuit court under § 12-22-20 are appellate in nature, not de novo. The circuit court may not substitute its judgment for that of the probate court (citing Martin v. Vreeland and Prestwood v. Prestwood).
Where the probate court heard ore tenus evidence and the appellate record contains no transcript and no Rule 10(d) statement, the reviewing court must conclusively presume the evidence supports the probate court’s findings (reaffirming Davis v. Davis and Cockrell v. Cockrell; applied through Island Girl Outfitters and Water Works & Sewer Bd. of Prichard v. Synovus Bank).
Because the circuit court reweighed the reasonableness of the fee and imposed its own hourly rate without the necessary record, it erred as a matter of appellate procedure.

Result: The circuit court’s judgment reducing the fee was reversed; the probate court’s fee award stands.

Factual and Procedural Background

After Minnie Pearl Harvey’s death in March 2019, her son, William McSwain, petitioned to probate her will and was initially granted letters testamentary. Her sister, Inez Lee, filed a will contest. The probate court then revoked McSwain’s letters and appointed attorney K. Nickie Bateman as administrator ad litem during the pendency of the contest. In September 2019, the parties stipulated to dismiss the will contest on conditions, including that Bateman’s administrator-ad-litem fees would be paid from estate funds.

Bateman submitted a $6,180 invoice (at $150/hour). Lee objected as unreasonable. After a hearing at which Bateman testified (no transcript was later provided), the probate court denied the objection, expressly invoking § 43-2-256 (authorizing compensation as directed by the appointing court) and—although § 43-2-256 does not list factors—looking for guidance to § 43-2-848 (which discusses factors for compensating personal representatives) to evaluate reasonableness. The court found the fee reasonable, noting in part that the billed amount aligned with a percentage-of-estate benchmark and that appointing a lawyer avoided duplicative legal fees a non-lawyer might have incurred.

Lee appealed to the circuit court. Treating the matter as if it could reexamine reasonableness anew, the circuit court held hearings of its own and reset compensation to $70/hour by reference to the indigent-defense statute (§ 15-12-21), disallowed travel time, and applied the 2019 IRS mileage rate—reducing the fee to $2,394.20. Bateman appealed.

Analysis

Statutory Framework

Section 12-22-20 (Ala. Code 1975): Governs appeals from probate court to circuit court. Such appeals are appellate in nature; no trial de novo is permitted. The circuit court reviews like an appellate court, applying the Alabama Rules of Appellate Procedure.
Section 43-2-256 (Ala. Code 1975): Authorizes compensation for an administrator ad litem “as the judge of probate or judge of the circuit court appointing him may direct,” taxable as costs to the estate or other parties as the court directs. The statute does not fix rates or list factors.
Section 43-2-848 (Ala. Code 1975): Addresses compensation of personal representatives and provides a framework for assessing reasonableness. The probate court used this as guidance by analogy when evaluating the administrator ad litem’s fee.
Rule 10(d), Ala. R. App. P.: Permits an appellant to submit a certified “statement of the evidence” when a transcript is unavailable, thereby creating an appellate record of ore tenus testimony.
Section 15-12-21 (Ala. Code 1975): Governs compensation for appointed criminal defense counsel. The circuit court improperly referenced this rate to reset an administrator ad litem’s fee in a probate matter.

Precedents Cited and Their Role

Prestwood v. Prestwood, 395 So. 2d 8 (Ala. 1981) and Martin v. Vreeland, 526 So. 2d 24 (Ala. 1988): Clarify that appeals to circuit court under § 12-22-20 are not de novo; the circuit court sits in an appellate capacity and applies the Alabama Rules of Appellate Procedure.
Sanders v. Brooks, 611 So. 2d 336 (Ala. 1992) and Patterson v. Patterson, 765 So. 2d 8 (Ala. Civ. App. 1999): Emphasize that an appellate court may not substitute its judgment for that of the probate court, especially where ore tenus evidence was heard.
Davis v. Davis, 278 Ala. 328, 178 So. 2d 154 (1965), Williams v. Clark, 263 Ala. 228, 82 So. 2d 295 (1955), Forrester v. Forrester’s Adm’rs, 40 Ala. 557 (1867), McAlpine v. Carre, 203 Ala. 468, 83 So. 477 (1919), and Cox v. Logan, 262 Ala. 11, 76 So. 2d 169 (1954): Establish the “missing transcript” rule—where oral testimony is not in the record, appellate courts conclusively presume the evidence supported the judgment; reversal is not warranted absent jurisdictional defect.
Cockrell v. Cockrell, 40 So. 3d 712 (Ala. Civ. App. 2009): States that if ore tenus testimony considered by the trial court is absent from the record as a transcript or Rule 10(d) statement, appellate courts must presume the testimony supports the judgment.
Water Works & Sewer Bd. of Prichard v. Synovus Bank, 404 So. 3d 202 (Ala. 2024): Restates the ore tenus rule—trial findings based on live testimony will be reversed only if plainly or palpably wrong.
Island Girl Outfitters, LLC v. Allied Dev. of Alabama, LLC, No. SC-2023-0561 (Ala. Mar. 21, 2025): Reaffirms that without a transcript or Rule 10(d) statement, an appellant cannot meet the burden to show error under the ore tenus standard; appellate courts affirm without reaching underlying merits.

Legal Reasoning

The Court’s analysis proceeds in two disciplined steps:

Appellate posture controls. Under § 12-22-20, the circuit court acts as an appellate court. It is constrained to the record and applicable standards of review. It cannot take new evidence or reweigh existing evidence as if the case were tried anew.
Ore tenus presumption plus missing transcript equals conclusive presumption of correctness. The probate court held an evidentiary hearing at which Bateman testified. Because the circuit court record lacked a transcript of that hearing and the parties did not file a Rule 10(d) statement, the circuit court was obliged to presume the evidence supported the probate court’s fee decision. Instead, the circuit court fixed a $70/hour rate (by analogizing to indigent-defense compensation) and recalculated travel time and mileage. That was a substitution of judgment that the appellate posture and the missing-transcript rule forbid.

Importantly, § 43-2-256 leaves the amount of compensation to the appointing court’s discretion and does not mandate a particular rate or list factors. The probate court exercised that discretion, explained its rationale (including analogical reference to § 43-2-848’s reasonableness framework and a percentage-of-estate cross-check), and found the fee reasonable. Without a proper record to show otherwise, the circuit court had no basis to overturn that determination.

The probate court also pointed to the parties’ stipulation (a contract) that administrator-ad-litem fees would be paid from estate funds and noted the inability of parties to escape contractual terms simply because the bargain later proves unfavorable. Although the Supreme Court did not rest its holding on contract law, it recognized that backdrop as part of the probate court’s reasoning.

What the Decision Does Not Decide

No universal hourly rate or formula for administrator ad litem compensation. The Court did not endorse $150/hour as a ceiling or floor, nor did it adopt the indigent-defense rate as a comparator. The statute gives discretion to the appointing court, subject to reasonableness.
No binding requirement to apply § 43-2-848 to § 43-2-256 fees. The probate court used § 43-2-848 as guidance; the Supreme Court did not mandate that approach for all cases.
No merits ruling on whether specific travel, mileage, or discrete tasks were reasonable. Those are fact-intensive determinations entrusted to the probate court; absent a transcript, the appellate court cannot revisit them.
No reworking of who pays fees under the stipulation. The probate court’s order implemented the parties’ agreement; the Supreme Court did not need to parse enforceability because appellate deference resolved the case.

Impact

On Probate Appeals

Reinforces that circuit courts must strictly observe appellate standards when reviewing probate orders under § 12-22-20. Conducting fresh evidentiary hearings or recalculating fees de novo is reversible error.
Elevates the importance of record preservation. Parties intending to challenge a probate finding that followed ore tenus testimony must secure a transcript or prepare a Rule 10(d) statement. Without one, reversal is virtually foreclosed.

On Administrator ad Litem Compensation

Confirms that § 43-2-256 grants broad discretion to the appointing court (here, the probate court) to set reasonable compensation as costs of the proceeding and allocate those costs to the estate or parties as appropriate.
Signals that analogical reasoning—such as consulting § 43-2-848 or applying percentage-of-estate cross-checks—can be acceptable tools for assessing reasonableness, especially when articulated on the record.
Discourages importing unrelated statutory caps or rates (e.g., indigent-defense compensation) into probate fee disputes without statutory authorization.

On Settlements in Probate

Highlights the binding effect of stipulations allocating administrative costs. Parties should draft fee provisions with specificity (scope, rate, caps, and tasks) to forestall later disputes.

Complex Concepts Simplified

Administrator ad litem: A temporary fiduciary appointed to represent an estate’s interests in specific proceedings when no personal representative is available or when conflicts exist. Compensation is authorized by § 43-2-256 and treated as costs of the proceeding.
Ore tenus rule: When a trial court hears live testimony, its fact findings are presumed correct on appeal and will be reversed only if plainly wrong. Appellate courts defer because the trial judge saw and heard the witnesses.
Appeal under § 12-22-20: An appeal from probate to circuit court is not a new trial. The circuit court functions like an appellate court, reviewing the record and applying the Alabama Rules of Appellate Procedure.
Rule 10(d) statement: If no transcript exists, the appellant may submit a narrative statement of the evidence for approval to create an appellate record. Without a transcript or Rule 10(d) statement, appellate courts presume the missing evidence supports the judgment.
Costs of the proceedings: Court-ordered expenses—including administrator ad litem compensation—taxed as part of the case costs and payable by the estate or by parties as the court directs.

Guidance for Practitioners

For appellants from probate: Arrange for a court reporter at the probate hearing or timely prepare a Rule 10(d) statement. Without one, the ore tenus presumption will almost certainly defeat your appeal.
For probate judges: Make reasonableness findings explicit. If § 43-2-256 lacks factors, consider analogs such as § 43-2-848 and explain the rationale (scope of work, complexity, risk, results, market rates, estate size, and efficiencies achieved).
For administrators ad litem: Keep detailed, segregated time entries (administrative vs. legal tasks), document estate-preserving actions, and include travel justifications. Provide narrative context to support reasonableness at any hearing.
For circuit judges: Confirm the posture is appellate under § 12-22-20. Do not reweigh evidence or impose new compensation schemes absent a proper record and a showing of palpable error.
For parties drafting stipulations: If agreeing that fees will be paid from the estate, specify the rate, categories of compensable tasks, travel standards, caps, and approval mechanisms to avoid later disputes.

Conclusion

The Alabama Supreme Court’s decision lays down a clear procedural rule with practical bite: on appeals from probate court under § 12-22-20, the circuit court is an appellate court, not a new fact-finder. When the probate court’s fee award follows an ore tenus hearing, and the record lacks a transcript or Rule 10(d) statement, the reviewing court must conclusively presume the probate court’s findings are supported by the evidence. In that posture, a circuit court cannot substitute a different hourly rate, disallow travel, or otherwise recalculate compensation. The discretion to set administrator ad litem fees rests with the appointing court, guided by reasonableness and articulated rationale. The ruling reinforces disciplined appellate procedure, promotes clear record-making, and provides practical guardrails for administering estates—and paying the professionals who safeguard them.