Creating a last will and testament is crucial in planning the distribution of your assets after your death.
In contrast to a last will and testament, a living will dictates instructions to be followed should you become incapacitated and incapable of making decisions regarding your health and medical care. If you had a living will, called an “advance directive” under Alabama law, it would take effect during your lifetime if necessary, while a last will and testament does not take effect until after you have passed away.
Do You Need a Last Will and Testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
One of the greatest benefits of having a last will and testament is that it allows the testator — the person creating and signing the will — to choose who will be responsible for carrying out the wishes contained in the will. If there is no will, the courts would make the decision instead. The person who oversees the will is called the “executor.”
A testator can use a will for various purposes, but the most important is to state how assets such as real estate, vehicles, business holdings, jewelry and bank accounts should be divided when the testator passes away. An Alabama Last Will and Testament also allows the testator to name someone as the legal guardian of their children.
Moreover, in addition to testamentary trusts (trusts that provide a benefit for people), Alabama law specifically allows the creation of a trust for the care of animals . Such a trust terminates upon the death of the last surviving animal covered by the trust. This trust could, for example, provide money to care for a pet or other animals.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. Once the will is proven valid in probate court, the executor can then pay off any debts and taxes owed by the estate and then distribute the testator’s property according to the will.
In Alabama, a will must be filed with the probate court within five years of the testator’s death.
Intestacy: Dying Without a Will
Someone who dies without a will is “intestate,” which means the laws of intestacy now govern the person’s estate. In Alabama, this means the surviving spouse receives the entire estate of the deceased unless there are surviving children or parents. In any event, however, the surviving spouse is always entitled to a share of the estate, the amount is determined by state law.
If there is no surviving spouse or children, the estate goes to the decedent’s siblings, then grandparents, and so forth down the line. The closer the relative, the higher their priority to inherit.
As you can see, if you would like to have control over the distribution of your assets and avoid intestacy laws, it is crucial that you have a valid Alabama will.
Exceptions to Ability to Distribute Property
Not all property you own can be distributed through an Alabama will. For example, property that is owned in joint tenancy with the right of survivorship cannot be devised by will. Other restrictions include:
- The beneficiary of a life insurance policy cannot be changed by a will
- Elective spousal share, as discussed above
- Homestead allowance: Surviving spouse (or surviving children if there is no surviving spouse) residing in the state is entitled to homestead allowance of $6,000
- Property exemptions: Surviving spouse (or surviving children if there is no surviving spouse) residing in the state is entitled to $3,500 in household furniture, automobiles, furnishings, appliances, and personal effects
- Family allowance: Surviving spouse (or surviving children if there is no surviving spouse) residing in the state may be entitled to a monetary allowance set by the court
Form a Last Will in Alabama
The basic requirements for an Alabama Last Will & Testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind, which means capable of making decisions and reasoning.
- Signature: The will must be signed by the testator or by another person in the testator’s name, under his direction and in his presence.
- Witnesses: At least two witnesses must sign an Alabama Last Will in order for it to be valid.
- Writing: An Alabama will must be written in order to be valid.
- Beneficiaries: An Alabama will may dispose of property to any person.
Changing an Alabama Last Will and Testament
An Alabama Last Will may be changed at any time before the testator’s death through a new will or a codicil, which is an addition or amendment that must be executed with the same formalities as an original will in order for it to be valid.
Revoking an Alabama Last Will and Testament
An Alabama Last Will may be revoked at any time by the testator in the following ways:
- By another written will that revokes all or part of the previous will directly or through conflicting terms; or
- By tearing, burning, canceling, obliterating, or destroying the will with the intent and for the purpose of revoking it.
The destruction of the will must be carried out by the testator or by someone else with the testator’s consent and at his direction. If the will is revoked by the act of someone other than the testator, consent and direction of the testator must be proven by two witnesses.