Alabama Wills

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Writing, Changing or Cancelling an Alabama Will

Need to make, alter or revoke your Will? Find out the legal requirements in Alabama. Make sure your Will is valid and protect your family and assets.

Requirements of making an Alabama Will

The law governing last will and testaments in Alabama is: The Code of Alabama 1975, Title 43: Wills and Decedent Estates, Chapter 8: Probate Code. Article 7 deals with Alabama Wills generally. In order to make a valid Alabama Will, the Probate Code has the following requirements:

  • Age: You must be 18 or older (section 43-8-130)

 

  • Capacity: you must be of sound mind (43-8-130)

 

 

  • In Writing: the will must be in writing. You cannot have a last will and testament made orally in Alabama (43-8-135)

 

 

  • Signed: the will must be signed by you (or another person in your presence and at your direction) (43-8-131)

 

 

  • Witnessed: the signing of the Alabama Last Will & Testament must be witnessed by at least two persons (43-8-131). The witness may be any person who can generally act as a witness. This means a person of sound mind 18 years or older. The Alabama Probate Code also provides that the witness may be an “interested person” (43-8-1), which includes any person having a right or claim to your estate. Even though your heirs, devisees (beneficiaries), spouse or even your creditors may witness your will, it is always advisable to have someone independent to act as a witness. Having independent witnesses eliminates any suggestion of fraud or undue influence.

 

How can I change my last will and testament?

There are two ways to change your will in Alabama:

  1. Revoke the former will and have a new one drawn up (which expressly revokes the former will);

 

  • Through a codicil (a document which amends your will). A codicil has the same signing and witnessing requirements as a last will and testament. (43-8-1)

 

How can your Alabama Last Will and Testament be revoked (cancelled)?

The following acts or events will revoke a last will and testament in Alabama:

  • By making a later will that expressly revokes your prior will. If not specifically revoked, only those parts of your earlier will which are inconsistent with your later will are invalidated. The rest of your earlier will remains in place (43-8-136).

 

  • By you physically destroying the Alabama Will (eg: burning, shredding or tearing). If someone else destroys your will, then (in order for it to be legally revoked) your consent and direction to do so must be proved by at least two witnesses. Without this proof, your last will and testament will remain in force (43-8-136).

 

 

  • If you become divorced or your marriage is annulled after signing your Alabama Will, then only the gifts to your former spouse are revoked. Divorce and annulment also cancels any appointment of your former spouse as executor, trustee or guardian or any other power of appointment. These cancellations apply unless you specifically state otherwise in your will. So, if you would like your former spouse to retain his/her share or appointment in your will, you should make this clear in the will. Note the revocations don’t apply if you only have a decree of separation (43-8-137).

 

Excluding a Spouse or Child from Your Alabama Will

The Alabama code provides certain entitlements to family members who have been excluded from an Alabama Will and Testament. How do you effectively disinherit your child or spouse?

The Spouse’s “Elective Share”

The spouse of a person (who was living in Alabama at the time of death) has the right of electing to take a specified share of the estate, regardless of what’s stated in the decedent’s last will and testament. The elective share is calculated by reducing the spouse’s separate property from the total decedent estate (up to a maximum of one third of the deceased’s estate) (43-8-70). You must take this into consideration if you’re trying to exclude your spouse from your Alabama Will.

Alabama Homestead Allowance

Irrespective of the Alabama Last Will, a spouse is eligible for a homestead allowance of $6,000 on the death of the other spouse. The deceased must have been an Alabama resident at the time of death. If there is no surviving spouse, the homestead allowance is divided equally between the decedent’s minor and dependent children. Creditors cannot claim on the homestead allowance (43-8-110).

Exempt Property for Spouse & Children

In Alabama, the widow of an Alabama resident is entitled to receive $3,500 worth of property including household furniture, automobiles, furnishings, appliances and personal effects. If there is no spouse, then the deceased’s children will share the amount equally. This entitlement is in addition to the homestead allowance and also applies irrespective of provisions in the Alabama Will. If there is no or insufficient “exempt property”, then the spouse or children are entitled to other property in the estate to make up the $3,500. Encumbrances over chattels are deducted from the value of the exempt property chosen. This right is in addition to any other entitlements to the estate (43-8-111).

Right to Family Allowance

The court may set an amount of allowance for the surviving spouse, minor children and children who were being supported by the deceased (43-8-112). This entitlement only applies if the decedent was a resident of Alabama and despite an Alabama Will to the contrary. The amount must be reasonable, as determined by the court. The allowance cannot continue for longer than one year if the estate is not sufficient to clear allowed claims. Payment can be lump sum or periodic. Payment is made to the surviving spouse for the purpose of providing for minor and dependent children. If a minor or dependent child is not living with the spouse, then the court may split the payments between the spouse, the child and/or the guardian/person looking after the minor child. The decision will be based on each person’s needs.

Right to Live in the Home

Until the homestead is assigned, the spouse has the right to retain possession of the house where he/she lived with the deceased. If rent is payable, it must be paid by the estate throughout this period (43-8-114). To prevent your spouse or child getting their hands on such benefits, you need to obtain advice particular to your financial and marital situation from a qualified attorney. Only an attorney can advise what action you need to take and provide you with the right wording for your Will.

Effect of Your Alabama Will after Death

What’s the process for submitting an Alabama Will and Testament to probate? Once the testator dies, the Will needs to be probated in order to be proved valid. This means the Will needs to be submitted to the probate court.

Who can apply?

Any of the following persons have a right to probate the Will:

  • The executor;

 

  • A beneficiary named in the Will;

 

 

  • Any heir;

 

 

  • The person who has custody of the original Will;

 

 

  • Any other person having an interest in the estate. (43-8-160)

 

Probate Time Limit

In Alabama, the last will and testament must be submitted to the court within 5 years of the testator’s death (43-8-161).

Where is the Will probated?

The probate application for an Alabama Will and Testamentneeds to be filed with the several probate courts in the appropriate counties, determined by the legislation as follows:

  • Where the testator resided at the time of death;

 

  • If not living in the state:
    • the county where the testator died and left assets;

     

  • if he/she did not die in an Alabama county, then the county where he/she left assets;
  • if died, not leaving assets in the state, and assets later come into any county, that county;

 

 

  • the county designated by the testator in the Will if he/she owned property there at the time of death. 43-8-162

 

Alabama & Federal Inheritance Tax

Estates no longer need to file an estate tax return with the Alabama Department of Revenue where the deceased died after December 31, 2004 and before January 1, 2011. Federal legislation has also repealed federal estate and gift tax. Therefore you do not need to file a Federal Estate Tax Return (Form 706) with the IRS. Estate taxes will resume in 2011.

Contesting an Alabama Will

In Alabama, only the following persons may contest a Will:

  • Those who have an interest in the Will (ie: a devisees who feels they have not received a sufficient share or omitted persons who feel they should have been included); or

 

  • Any heir who has been excluded (ie: a person who would have inherited from the decedent’s death if he/she died without a Will).

 

The person filing the objection must also have a valid reason in order to contest the Alabama Last Will and Testament. It’s not enough to say you’re unhappy with the amount you inherited. Valid reasons include:

  • That the will was not duly executed (not signed properly);

 

  • That the testator was not of sound mind, or was under undue influence at the time he/she made the Will;

 

 

  • Any other valid objection including fraud, mistake and the way in which the estate is being managed (43-8-190).

 

The objection must be filed in the court where the Alabama Will is offered for probate. After filing an objection, the court will direct an issue to be made up where the person applying for probate is the plaintiff and the person contesting its validity is the defendant. Either party may apply for this issue to be tried by a jury (43-8-190). A trial date will be set down by the court and either party can apply for the court to subpoena witnesses to appear at the trial (43-8-191). If the judgement states the Will is not valid, then probate must be rejected (43-8-195). It will then be deemed the decedent died without a Will.

Dying Intestate

What happens if you die without a valid Alabama Will? Find out who your legal heirs are and how much they receive from your estate. How your estate is distributed depends on the family members which survive you. The legislation first provides for your spouse, who will have to share your estate with your children and parents. If you are survived by your spouse and parent/s, your spouse is only entitled to the first $100,000 plus half the balance of your estate. Your surviving parent or parents receive the other half. If you have children who do not belong to your husband or wife, then your spouse receives one half of your intestate estate. You children share the balance equally. If you had all your children with your spouse, then he/she receives the first $50,000 plus half of the balance. Your children share the rest. If one of your children has passed away, their share will be divided equally among his/her children. Here are some case studies to help you understand the intestacy laws which govern resident’s property without a valid Alabama Last Will and Testament. (Note: the estate values below exclude any jointly owned property with a right of survivorship.) Distributions when spouse dies without a will, leaving a spouse and two children: Mary’s husband dies without a will. His estate is worth $100,000. They have two children together. Who gets what? Mary – $75,000, Children – $12,500 each. Distributions when spouse dies without a will, leaving a spouse, a child and grandchildren from a deceased child: Steven’s wife dies without a will. Her estate is worth $100,000. They have two children together, but one has passed away. Who gets what? Steven – $75,000, Living Child – $12,500, Deceased child’s children – share $12,500 equally. Distributions when spouse dies without a will, leaving a spouse, children and children from a former partner: Linda’s husband Paul dies without a will. His estate is worth $100,000. They have two children together. Paul also has 2 children from a former partner. Who gets what? Linda – $50,000, Linda & Paul’s Children – $12,500 each, Paul’s children from a previous partner – $12,500 each.

Alabama Will Forms

Before making an Alabama Will and Testament, we recommend you obtain attorney advice on:

  • Preparing, signing and witnessing a Last Will and Testament
  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents):

Alabama Will Form: Married with adult children
Alabama Will Form: Married with adult and/or minor children, includes a trust for minor children
Alabama Will Form: Married with no children

Alabama Will Form: Single with adult children
Alabama Will Form: Single with adult and/or minor children, includes a trust for minor children
Alabama Will Form: Single with no children

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