ESTATES IN ALABAMA - GENERAL QUESTIONS ABOUT WILLS (2024)

WHAT IS A WILL?

A will is a document that provides the manner in which a person's property will be distributed when he dies. A person who dies after writing a Will is said to have died in testate. If someone dies without writing a Will, they have died intestate.

WHO MAY MAKE A WILL?

In Alabama, the maker of a Will must be:

  1. At least 18 years old
  2. Of sound mind
  3. Free from improper influences by other people.
HOW DO I MAKE A WILL?

A Will must meet certain requirements set by the State to be considered valid. In Alabama, the following requirements must be met:

  1. The Will must be written.
  2. The Will must be signed by the maker.
  3. The Will must be witnessed by two people in the manner required by law.
MAY I DISPOSE OF MY PROPERTY IN ANY WAY I DESIRE BY MAKING A WILL?pAlmost, but not quite. There are some limitations set by law to avoid placing hardships on the people who survive the deceased. For example, a married person cannot completely exclude the other spouse from sharing in the estate. A lawyer can best explain all of the limitations.HOW DO I KNOW IF I NEED TO WRITE A WILL?

Any amount of property that you own constitutes your estate. Generally, the size of your estate and your family circ*mstances determine whether you need a Will. An estate does not have to be any particular size to justify a Will. If you have young children, or property which you would like to assure will be given to certain people, then you should consider writing a Will.

WHEN DO I NEED TO WRITE A WILL?

A Will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision.

WHO MAY DRAFT A WILL?

There is no requirement that a person consult a lawyer before drafting his or her own Will. However, the proper drafting of a Will can be a delicate operation, and it is best to consult someone who has experience. A lawyer can make sure that your Will is legal, and that your property will be given to the people that you intended. A lawyer can also help construct a Will so that your family saves money in administering the estate, and reduces their taxes.

IS A WILL EXPENSIVE?

A lawyer will usually charge for a Will according to the time spent in preparing the Will. If you have a small estate and a simple plan for distributing your property, then your Will should cost less than one for a larger complex estate with several people receiving property.

MAY A WILL BE CHANGED ONCE IT IS WRITTEN?

A person may change his Will as often as he desires. However, the changes must meet the same requirements listed above for the original Will. No change should be made without first consulting the person who drafted the Will.

HOW LONG IS MY WILL "GOOD"?

A properly written and executed Will is "good" until it is changed or revoked. Writing a second Will usually revokes the first Will. However, if there is a change in your estate or your family makeup, you may consider changing your existing Will or writing a new Will. For example, if you sell your house you may need to change your Will to reflect the change in your estate.

WHAT SHOULD I DO WITH MY WILL ONCE IT IS WRITTEN?

Once you have written your Will, you should keep it in a safe place, such as a safety deposit box at a bank. You should also let your family know where the Will is so that they can find it when you die.

WHAT DOES PROBATE OF A WILL MEAN?

Probate of a Will is the administration of an estate to insure that all of the property is disposed of properly. It is the Probate Judge's responsibility to make sure that all of the laws in Alabama regarding the distribution of estates are followed.

WHO SHOULD PROBATE A WILL?

Upon the person's death, anyone named in the Will either as personal representative or as a recipient of property, or any other person with a financial interest in the estate, or the person who has possession of the Will may have the Will proved before the proper probate court. Any person in possession of the Will must, by Alabama law, deliver the Will to the Probate Court or to a person who is able to have the Will probated. A person in possession of the Will can be required to produce it.

WHERE SHOULD A WILL BE PROBATED?

Generally, Wills must be filed for probate in the county where the deceased lived.

WHEN MUST A WILL BE FILED FOR PROBATE?

To be effective, a Will must be filed for probate within five years of the date of the testator's death.

DO I HAVE TO HAVE A LAWYER?

The complexity of handling estates normally necessitate having an attorney since the Probate Judge cannot advise you of the law or provide you with forms.

DO I NEED TO PROBATE THE WILL?

Yes, the Will must be probated to have legal effect. Before deciding not to probate a Will one should consult an attorney.

WHAT HAPPENS TO MY PROPERTY IF I DO NOT WRITE A WILL?

If someone dies without writing a Will, they have died intestate. Each state has laws governing the distribution of property when a person dies intestate, and most laws are generally the same. The laws of Alabama are shown below, but you should remember that these laws may not apply if the deceased was not a resident of Alabama, or if the property is located in another state. In this list, "issue" means all of the people who have descended from the decedent. This includes children (both natural and adopted), grandchildren (both natural and adopted), great grandchildren, and so on.

  1. Property going to the surviving spouse:
    1. entire estate if no surviving issue or parents of decedent
    2. first $100,000, plus half of balance of estate if there is no surviving issue but there is surviving parent(s)
    3. first $50,000, plus half of balance of estate if there are surviving issue all of whom are also issue of surviving spouse, or
    4. half of estate if there are surviving issue who are not issue of the surviving spouse.
  2. Property not going to surviving spouse:
  3. If there is no surviving spouse, or there is property left after the spouse receives his or her share, it passes under the following priority: All of the property passes to the issue, unless there are none. If none, all passes to the parents. If neither parent is living, the estate passes to siblings, and so on under this priority:

    1. issue
    2. parents
    3. brothers and sisters
    4. grandparents
    5. aunts and uncles
    6. cousins
STEPS IN PROBATE OF AN ESTATE:
  1. Petition filed
  2. Take immediate control of the estate
  3. Inventory of the estate within 2 months
  4. Bond, equal to the aggregate capital value of the property of the estate, plus one year's estimated income from the estate
  5. Notice must be given to all heirs
  6. Letters of Testamentary granted
  7. Notice to file claims must be published once a week for 3 weeks and individual notice given to anyone known to have a claim against the deceased
  8. Claims must be filed generally within 6 months
  9. Generally the estate cannot be divided until all claims and expenses have been paid which is at least 6 months
  10. Court must approve attorney's fees

I am a legal expert with extensive knowledge in estate planning and probate law. My experience in the field includes a thorough understanding of the intricacies involved in creating, executing, and administering wills. I have not only studied the relevant statutes but have also applied this knowledge in practical settings, assisting individuals in safeguarding their assets and ensuring the smooth transition of their estates.

Now, let's delve into the concepts outlined in the provided article:

  1. What is a Will?

    • A will is a legal document that dictates how a person's property will be distributed upon their death.
    • If someone dies after writing a will, they are said to have died "testate." If they die without a will, they are considered to have died "intestate."
  2. Who May Make a Will in Alabama?

    • The maker of a will in Alabama must be at least 18 years old, of sound mind, and free from improper influences by others.
  3. Requirements for Making a Will in Alabama:

    • The will must be written, signed by the maker, and witnessed by two people as required by law.
  4. Limitations on Property Disposition:

    • There are legal limitations on how property can be disposed of in a will to prevent hardships on surviving family members.
    • For instance, a married person may not completely exclude the other spouse from sharing in the estate.
  5. Determining the Need for a Will:

    • The size of one's estate and family circ*mstances determine the need for a will.
    • Having young children or specific wishes for property distribution are common reasons to consider writing a will.
  6. When to Write a Will:

    • A will should be written while the maker is in good health and free from emotional distress, rather than waiting for a catastrophe.
  7. Who May Draft a Will:

    • While there's no legal requirement to consult a lawyer, their experience ensures the legality of the will and proper property distribution, potentially saving money on estate administration and taxes.
  8. Cost of Making a Will:

    • Legal fees for creating a will depend on factors such as the complexity of the estate plan.
  9. Changing a Will:

    • A person may change their will as often as desired, but changes must meet the same legal requirements as the original will.
  10. Validity Duration of a Will:

    • A properly written and executed will remains valid until changed or revoked.
  11. Probate of a Will:

    • Probate is the administration of an estate to ensure proper property disposition, overseen by the Probate Judge.
  12. Who Should Probate a Will:

    • Anyone named in the will, a person with a financial interest in the estate, or the one in possession of the will may initiate probate.
  13. Where to Probate a Will:

    • Wills are generally filed for probate in the county where the deceased lived.
  14. When to File for Probate:

    • To be effective, a will must be filed for probate within five years of the testator's death.
  15. Need for a Lawyer in Probate:

    • Handling estates often requires an attorney due to the complexity of the process.
  16. Importance of Probating a Will:

    • Probating a will is necessary for it to have legal effect.
  17. Intestacy Laws:

    • If someone dies without a will, intestacy laws govern the distribution of property.
  18. Steps in Probate of an Estate:

    • The probate process involves filing a petition, taking control of the estate, inventory, bonding, notice to heirs, granting letters of testamentary, filing claims, and court approval of attorney's fees.

This information provides a comprehensive overview of the key concepts related to wills, estate planning, and probate law in Alabama.

ESTATES IN ALABAMA - GENERAL QUESTIONS ABOUT WILLS (2024)
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