ESTATES
Wills and Administrations
A will is a document which discloses how a person wishes his or her property to be distributed
after death. A will must meet certain legal requirements. The law requires that a person making a will must be 18 years of age or
older, of sound mind and under no undue influence. The will must be signed by the maker and witnessed by at least two people, and
to make the will self-proving must be notarized and use the appropriate language to fully comply with the law. After a will is written,
it should be kept in a safe place and the executors or personal representatives should be notified where the will is being kept.
A will should be probated within five (5) years after the person is deceased. If a person dies without a will, a Petition for Letters
of Administration may be filed. The petitioner must be a resident of the State and is required by law to acquire a bond that will
cover the amount of the estate. Distribution of the assets of the deceased is to be in compliance with Alabama law.
Because of
the legal complexity of these processes, you should consult an attorney to prepare and file the proper documents.
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 testate.
WHO MAY MAKE A WILL?
In Alabama, the maker of a Will must be: (1) at least 18
years old; (2) of sound mind; and (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. The Will must be written, signed by the maker, and witnessed by two (2) people
in the manner required by the law. To qualify as a self-proving will, it must also use required language and be signed by a
notary public.
MAY I DISPOSE OF MY PROPERTY 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 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 which 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 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 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 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 large, complex estate
with a trust and/or 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. If there is a change in your estate or your family makeup, you may consider writing a new Will. However,
the changes must meet the same requirements listed above for the original Will. No change should be made without first consulting
a lawyer.
HOW LONG IS MY WILL "GOOD"?
A properly written and executed Will is "good" until it is changed or revoked. Writing a
second Will revokes the first Will.
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. Be advised that if you are the only named person to have access into your
safety deposit box, it will require a court order for someone to be able to access the box to obtain your will. You should 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 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 necessitates retaining 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.
ADMINISTRATION OF AN INTESTATE ESTATE (without a will)
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 specific 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.
Property going to the surviving spouse:
· Entire estate if no surviving issue or parents of decedent;
· First $100,000, plus one-half
of balance of estate if there is no surviving issue but there is surviving parent(s);
· First $50,000, plus one-half of balance of estate if there are surviving issue all of whom are also issue of surviving spouse;
or
· One-half of estate if there are surviving issue who are not issue of the surviving
spouse.
Property not going to surviving spouse:
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