Making a will is a critical part of any estate plan. A will lets you name someone to handle your estate, give property to your loved ones, and designate someone to care for your minor children. However, making a will is not difficult. We have the answers to your frequently asked questions about Alabama wills.
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What If I Die Without a Will in Alabama?
If you have a will, a probate court knows what property you own and your wishes about who you want to receive your property. If you die “intestate,” meaning without a will, the probate judge follows Alabama’s intestacy laws to distribute your estate.
You might assume your spouse inherits your entire estate. That is not true. In Alabama, if married with children, your spouse receives the first $50,000 of your estate plus one-half of the intestate estate. If married but have no children, your spouse gets the first $100,000 of your estate plus one-half of the intestate estate. Your parents receive the other half of your intestate estate.
And if you have a life-long partner or stepchildren that you have not adopted, they are left out of your estate entirely. You may want to determine who receives your property and not leave it up to the state.
What Does a Will Do?
When you make a last will and testament, you decide who handles your estate, inherits your property, and cares for your minor children or pets. Some common provisions in a will include:
- Naming a personal representative or executor to gather your assets, submit your will to the probate court, and follow the instructions left in your will
- Identifying and giving away specific personal property and real estate to your beneficiaries
- Naming beneficiaries to receive the remainder of your assets
- Naming guardians for your young children
- Naming caregivers for your pets
- Making charitable gifts
With a will, the probate process moves more quickly, saving your family and loved ones time and money.
What Doesn’t a Will Do?
Certain types of assets, called non-probate assets, do not pass through your will. These assets and accounts pass according to the terms of their own legal documents. They transfer outside your will and do not go through the probate process. These may include:
- Funds in payable on death or transfer on death bank accounts and investment accounts
- Benefits from life insurance policies and annuities
- Retirement benefits, 401(k)s, IRAs, and Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
Check that your accounts and policies have the correct beneficiary designations. You can name a backup beneficiary if your primary beneficiary dies before you. Any assets without a beneficiary go to your estate for a probate court to distribute.
Who Can Make a Will in Alabama?
Under Alabama law, the person making a will, called the testator, must meet the following requirements.
- Age: A testator must be at least 18 years old
- Sound Mind: A testator must have a sound mind, meaning they understand they are making a will, the property they own, who their natural heirs are, and how a will disposes of their property.
The testator must have a sound mind at the time they sign their will. Alabama residents concerned about mental capacity issues may want to consult an estate planning attorney for legal advice.
Does Alabama Have a Statutory Will?
No. Alabama does not provide or require a particular form of a will. You can hire an attorney to draft one or do it yourself with online resources, such as FindLaw Legal Forms and Services. It is important to use a legal form-building service that complies with Alabama law.
What Types of Wills Does Alabama Accept?
Most will are typewritten or printed and then signed by the testator. However, it is a good idea to understand these other types of wills and if they are acceptable in Alabama:
- Handwritten Will: A will written in the testator’s own handwriting is valid in Alabama if the testator signs it or directs someone to sign it in his presence and before two witnesses. However, a holographic will, which is one written in the testator’s handwriting but does not have witnesses, is not valid in Alabama.
- Oral Will: An oral or spoken will, called a nuncupative will, is invalid in Alabama.
- Electronic Will: An electronic will is a will signed, witnessed, or notarized through electronic methods. At this time, Alabama does not recognize electronic wills.
While you can use a handwritten will, it may be subject to claims of fraud or undue influence.
Can I Make My Own Will in Alabama?
Yes. You can make your own will in Alabama. You are not required to use an attorney to draft your will. You can make your will if you know who you want to handle your estate, what assets you have, and who you wish to receive those assets. The advantage of online will drafting services, such as FindLaw Legal Forms and Services, is that they allow you to customize and update your will whenever you want. So if you have a significant life event, such as a death in the family or a new child, you can replace your original will with a new will instead of adding an amendment or codicil that may get lost.
How Do I Make My Will Valid in Alabama?
Alabama has the following legal requirements to make a valid will:
- Signature: The testator signs their will in the presence of two witnesses. Or if the testator is unable to sign their will, they may direct another to sign for them in the presence of two witnesses.
- Witnesses: A will needs two competent witnesses who either saw the testator sign their will or had the testator acknowledge their signature on their will. Or saw the testator direct someone to sign on their behalf. A competent witness is someone who is able to testify in court. Some states prohibit interested witnesses, meaning witnesses who receive something in the will. You may use interested witnesses in Alabama. However, you may want independent witnesses so no one can claim someone unduly influenced you.
- Notary: An Alabama will does not have to have a notary public’s signature. But you will require a notary if you want to use a self-proving affidavit.
- Self-Proving Affidavit: Alabama allows you to use a self-proving affidavit, a statement signed by your witnesses and notarized by a notary public that attests you signed your will willingly and that you were 18 years or older. The benefit of using a self-proving affidavit is that your personal representative can submit your will to probate court without additional proof or testimony from your witnesses that you signed your will according to the laws of the state of Alabama.
Can I Disinherit My Spouse in Alabama?
You do not have to give your spouse anything in your will. However, if you don’t, your spouse can claim an elective share of your estate, provided they did not give up their right in a premarital agreement. An elective share is a part of a decedent’s estate that a spouse may claim if left out of the will. Under Alabama’s state laws, a surviving spouse may claim an elective share of up to 30% of your estate.
Can I Disinherit My Children in Alabama?
Yes. Children do not have a right to inherit from your estate. If you want to disinherit a child, you must do so specifically in your will. However, if your child is minor or dependent, they may receive a $15,000 homestead allowance, exempt property such as furnishings and household effects up to a value of $7,500, and an allowance of up to $15,000.
What Estate Planning Documents Should I Have in Alabama?
A will is a great first step to your estate planning. But a will helps your loved ones after you die. Consider creating the following estate planning documents that help you and your loved ones while you are still alive:
- Power of Attorney. A power of attorney is a document that allows you to appoint someone you trust as your agent to make financial decisions for you if you cannot do so. Your agent has a fiduciary duty to act in your best interests. You determine what powers to grant your agent and when your agent’s authority begins and ends.
- Health Care Directive. A living will or advance medical directive lets you name a person to make healthcare decisions on your behalf if you are unable. It also allows you to leave instructions about life-sustaining treatments and end-of-life care. If you don’t leave your wishes, your loved ones must figure out what you want.
Fortunately, making a valid will and creating other Alabama estate planning documents is easy with online estate planning templates.