|WHAT IS A WILL?
Will is a document which
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. If someone dies without writing a will, they have died
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.
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?
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 reduce 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 several people receiving property.
MAY A WILL BE CHANGED ONCE IT IS WRITTEN?
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"?
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
Once you have written your Will, you should
keep it in a safe place, such as a safety deposit box at the bank.
You should also let your family know where the Will is so the they
can find it when you die.
PROBATE OF WILLSWHAT DOES PROBATE OF A
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
WHO SHOULD PROBATE A WILL?
Upon the person's
death, anyone named in the Will either as personal representative of
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
WHERE SHOULD A WILL BE PROBATED?
Wills must be filed for probate in the county where the deceased
WHEN MUST A WILL BE FILED FOR PROBATE?
effective, a Will must be filed for probate within five years to 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
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.
INTESTATE SUCCESSIONWHAT 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 included 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 1/2 of balance of estate if there is no
surviving issue but if there is surviving parents; First $50,000,
plus 1/2 of balance of estate if there are surviving issue all of
whom are also issue of surviving spouse; or 1/2 of estate if there
are surviving issue who are not issue of the surviving
PROPERTY NOT GOING TO SURVIVING SPOUSE:
there is no surviving spouse, or there is property left after the
spouse receives his or her share, it passes under the following
- All of the property passes to the issue, unless there are
- If none, all passes 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
ADMINISTRATION OF ANSTEPS IN PROBATE OF AN ESTATE:
- Petition files
- Take immediate control of the estate
- Inventory of the estate within 2 months
- Bond, double the value of the estate
- Notice will be given to all heirs
- Letters of Testamentary granted
- 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
- Court must approve attorney's fees
THIS INFORMATION, WHICH IS BASED ON ALABAMA LAW, IS TO INFORM
AND NOT TO ADVISE. NO PERSON SHOULD EVER APPLY OR INTERPRET ANY LAW
WITHOUT THE AID OF A LAWYER WHO ANALYZES THE FACTS, BECAUSE THE
FACTS MAY CHANGE THE APPLICATION OF THE LAW.
Prepared by the Alabama Law Institute For Alabama
Probate Judges' Association