Do I Need a Will in Alabama?
This article originally appeared at: https://www.sarahsshepard.com/blog/do-i-need-a-will-in-alabama
Many people are under the impression that things like wills and trusts are for the wealthy. However, this notion couldn’t be further from the truth, especially if you have any assets of value that you want to ensure get passed down to the right heirs or other beneficiaries.
In the state of Alabama and most other states, no one is legally required to draft a last will and testament. If we’re being honest, though, it’s not something you want to go without or leave until the last minute. Unfortunately, it’s all too common for individuals to forgo drafting a valid will without realizing what happens to your estate when it’s left in the state’s hands.
In this article, we’re going to cover everything you need to know about estate planning in Huntsville, AL, in terms of whether or not you need a will. We’re also going to dive into what happens if you don’t have a will at the time of your passing or incapacitation.
So, do you need a will in Alabama? Keep reading to learn more so you can make that decision for yourself.
What Is a Will and Is it Necessary in Alabama? First thing’s first — let’s talk about what a will is and does .
A last will and testament is a legal document that acts as a record of your wishes regarding the distribution of your estate, i.e., your property or properties, finances, and other assets. Wills are also used to write your wishes for the care of any minor children in terms of guardianship and how and where you want them to live.
It should be noted that a will alone may not be enough. This is especially true if other issues arise after you’ve passed, such as creditors and liens trying to get any debts you’ve left behind paid. This is usually where living trusts come into play to ensure certain assets are protected from both the state and any legal recourse that crops up.
Wills and trusts don’t just ensure asset protection. They also ensure that the loved ones you leave behind don’t have to waste time, money, and emotional energy in probate court just to settle your affairs and figure out who gets what from your estate. Trusts are essential as they cannot be contested by anyone left out of your will and feels that they’re owed something.
Additionally, in the state of Alabama, wills allow you to leave “gifts” for your spouse, children, relatives, friends, and even pets to help your loved ones avoid inheritance taxes and other estate taxes.
Lastly, a will can also provide specific instructions to be followed should you become mentally or physically incapacitated and incapable of making important decisions regarding your health and medical care. In Alabama, this is considered a type of living will, which is more specifically referred to as an advanced healthcare directive , and it would take effect. At the same time, you’re still alive if necessary, whereas the last will won’t take effect until after you’re gone.
So, How Do I Know If I Need a Will? To reiterate, you’re not legally required to have a will. Still, your Huntsville attorney will strongly advise that you draw one up — even if you have what is considered a “small estate.” Having a small estate means that the totaling of your assets is less than $25,000, in which case, the probate process is much shorter.
However, most people don’t realize that a short probate process does not equate to fewer court fees, nor does it equate to less effort on your heirs’ part in starting the probate process and seeing it through.
Additionally, suppose you die without a will in Alabama. In that case, it’s referred to as dying intestate, which means the state will take over the distribution of your assets. We’ll talk about that in just a moment.
The short answer here would be yes. You need a valid will, especially if you have anything of value to leave behind to anyone. If you’re still unsure, answer yes or no to the following questions:
Are you married?
Do you have children?
Do you have any pets?
Do you have a positive net worth?
Do you have any assets of value — such as a car, artwork, a family vacation home, etc.?
If you answered “yes” to any of the above questions, you need a will.
Think of it this way, if you’re married, then you’ll want to determine whether or not your spouse will get any assets should you pass on. Traditionally speaking, your spouse would likely inherit your things even without a will, but what they actually receive will essentially be left up to chance.
The same goes if you have children. Aside from receiving your assets, you may need to determine a guardian for your children if you don’t have a surviving spouse who is their biological parent. The guardian you choose would be responsible for raising your children until they turn 18, making it a critical decision.
Basically, the only time you wouldn’t need a will is if you have any assets or dependents. But that doesn’t mean you won’t need a valid will in the future. Once you get married, have kids, come into money or other assets, you’ll definitely want to ensure that everyone and everything is squared away.
What Happens If You Pass Away Without a Will? Back to dying intestate . Suppose you pass away without a last will or any trusts. In that case, your property and assets will automatically be turned over to the state and be subject to the Alabama Intestate Succession laws.
Essentially, when you die intestate, who gets what will depend entirely on your current immediate family, whether or not you have children, living parents, or other close relatives.
Here’s what happens in a nutshell:
If you die with a spouse but no children — then your spouse inherits everything.
If you die with children but no spouse — then your children will inherit everything.
Suppose you die with both a spouse and surviving biological children of that space . In that case, your spouse will inherit the first $50,000 of your intestate property plus one-half of the balance of your property afterward. Your children would inherit the remaining balance of your intestate property.
Suppose you die with a spouse and surviving non-biological children of that spouse . In that case, your spouse will inherit half of your intestate property, and your children will inherit the other half.
If you die with parents but no spouse or children — then your parents will inherit everything.
If you die with siblings but no spouse, children, and parents , then your siblings will inherit everything.
It should be noted that when children become inheritors, the amount each child receives from your intestate assets will depend entirely on the total number of children involved. The distribution of assets becomes even more complex when stepchildren and adopted children are involved.
For example, if you have a child that isn’t born until after your death, they’re still entitled to a share of your intestate assets — even if you aren’t married to the mother of that child.
Additionally, suppose you have stepchildren that you haven’t legally adopted . In that case, even if you’re married to your biological parent, they won’t be eligible to receive anything.
Lastly, suppose you die intestate and don’t have any family. In that case, your estate will be considered “escheat” and become the legal property of the state. However, this is rare in Alabama as the laws are designed to get your property to anyone who is even slightly related to you.
What Are the Requirements for Drafting a Valid Will? There are several different types of wills a person can write. However, if it isn’t a valid will, it won’t be worth anything in probate court.
Here’s what you need to do to draft a valid will:
You must be 19 years of age or older
You must be of sound mind, as in 100% aware of who you are and what you’re doing. This means you’ll know exactly what assets you own and how you want them distributed. For example, if you’re not mentally well when drafting your last will, it’ll be easier to contest in court
It must also be in writing (typed)
It must clearly name the testator (the person writing the will) and the executor (the person who will oversee everything in the will), as well as the heirs who will receive your assets
It must be signed by the testator in the presence of two witnesses. The witnesses cannot be anyone with interest in the assets listed in the will
It must be notarized
As long as the above requirements are met, then your last will and testament will be considered a legal document in the state of Alabama. However, when it comes time for the will to pass through probate court, at least one of the witnesses will be required to appear in court to further its validation unless it’s a “self-proving” will.
For your last will to be self-proving, it must come with a sworn statement from the testator. This statement must acknowledge that the document is, in fact, your last will and testament, that you’re of legal age, and that you’re drafting your will voluntarily. Your witnesses must also make a statement that you are of legal age and of sound mind and health and under no duress when signing the will.
These sworn statements must be made before a notary public to make them official.
It should also be noted that as long as you’re alive and of sound mind and health, you can — and should — update your will at any time to reflect your most current assets and wishes for their distribution.
Do I Need an Attorney to Draft a Will? Having an attorney help you draft your will is also not a legal requirement in Alabama. However, having one there to help you ensure it’s valid and understand precisely what you’re doing is essential.
Additionally, your acting Huntsville attorney can be named the executor in your last will if you don’t have anyone else you can trust to carry out your last wishes. They can also act as one of your witnesses, if necessary.
Having a valid will and trusts in place is the best way to ensure that your assets and loved ones are taken care of once you pass on. So don’t leave this important document for the last minute — call us today to speak with Sarah S. Shepard or another experienced Huntsville attorney about planning your estate the right way.