What is a Will?
A Will is a document that provides the manner in which a person’s assets will be distributed when he/she dies. A person who dies after writing a Will is said to have died testate. If someone dies without signing a Will, they have died intestate.
Who May Make a Will?
In Alabama, the maker of a Will must be:
- At least 18 years old;
- Of sound mind; and
- 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:
- The Will must be written.
- The Will must be signed by the maker.
- The Will must be witnessed by two people in the manner required by law.
A Will that is notarized with a proper statement is a self-proving Will, which does not require a hearing to appoint a Personal Representative, if all heirs-at-law sign a Waiver.
May I Dispose of My Assets in Any Way I Desire By Making a Will?
Almost, but not quite. There are some limitations set by law to avoid placing hardships on the surviving spouse. For example, a married person cannot completely exclude the other spouse from sharing in the estate, without a prenuptial or post-nuptial agreement. A lawyer can best explain all of the limitations.
How Do I Know If I Need to Make a Will?
Any amount of assets that you own constitutes your estate. Generally, the size of your estate and your family circumstances 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 assets that you would like to assure will be given to certain people or you have assets titled solely in your name, you need a Will. If your estate (or the combined estate of you and your spouse) exceeds $2,000,000, then you need to make a Will, which takes advantage of the estate tax laws. This amount includes the face value of insurance policies you own.
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 their 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 assets will be given to the people that you intended. A lawyer can also help construct a Will so that your family saves money administering the estate and reduces their estate tax.
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 assets, then your Will should cost less than one for a large, complex estate with several people receiving assets.
May a Will be Changed Once It is Written?
A person may change his/her Will as often as he/she desires. However, the changes must meet the same requirements regarding witnesses listed above for the original Will. No change should be made without first consulting the attorney who drafted the Will.
How Long is My Will “Good”?
A properly written and executed Will is “good” until it is changed or revoked or the maker dies. 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. You should also review your Will periodically to make sure it complies with current Alabama and Federal tax law.
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, as long as someone else has authority to access the box. You should also let your family know where the Will is so that they can find it when you die.
PROBATE OF WILLS
What does Probate of a Will Mean?
Probate of a Will is proving the Will is valid and the administration of an estate to insure that all of the assets are collected and disposed of properly, according to the terms of the Will. It is the Probate Judge’s and the Personal Representative’s responsibility to make sure that all of the laws in Alabama regarding 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 assets, 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 or had assets.
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 necessitates having an attorney. 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.
ADMINISTRATION OF AN INTESTATE ESTATE
What Happens to My Assets If I Do Not Write a Will?
If someone dies without writing a Will, they have died intestate. Each state has specific laws governing the distribution of assets 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 their assets are 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.
- Assets going to the surviving spouse:
- entire estate if no surviving issue or parents of decedent;
- first $100,000, plus ½ of balance of estate if there is no surviving issue, but there is surviving parent(s);
- first $50,000, plus ½ of balance of estate if there are surviving issue all of whom are also issue of surviving spouse; or
- ½ of estate if there are surviving issue who are not issue of the surviving spouse.
- Assets not going to surviving spouse:
If there is no surviving spouse, or there are assets left after the spouse receives his or her share, the assets pass under the following priority: All of the assets pass to the issue, unless there are none. If none, all pass to the parents. If neither parent is living, the estate passes to siblings, and so on, under this priority:
- brothers and sisters
- aunts and uncles
STEPS IN ADMINISTRATION OF AN ESTATE:
- Bond, equal to the aggregate capital value of the assets of the estate, plus one year’s estimated income from the estate (unless waived by a Will).
- Petition filed.
- Notice must be given to all heirs.
- Take immediate control of the estate.
- Letters Testamentary/Letters of Administration granted.
- Inventory of the estate within 2 months, unless waived in Will
- 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.
- Claims must be filed generally within 6 months.
Generally, the estate cannot be divided until all claims and expenses have been paid, which is at least 6 months.