Drafting up a will or planning your estate for your heirs can be an uncomfortable thing to think about, much less to start doing. No one likes to contemplate their own mortality. However, making sure that you have a viable will in place, and that you have considered the appropriate way to plan your estate is essential to make sure your relatives are taken care of and that your final wishes are followed.
If someone dies without drafting a will, then all their property will pass ‘intestate,’ meaning it is divided up between that person’s living relatives and heirs. In Alabama, property passes to heirs as follows:
If the decedent was married:
If the decedent was unmarried, then property passes by order of ‘priority,’ meaning that the category of relative is ranked, and if there are no members of the family within that category, property will pass until someone acceptable can take it. The order is:
Therefore, if the person dies without a will, the property is not particularized or divided up, and the decedent has no say in who will receive the benefit of their property upon death. Wills can be especially important if you have young children, to ensure that they are taken care of, even if your surviving spouse remarries, or if you were a single parent.
First, you should start the process as soon as possible, particularly if you are older or are facing a terminal illness. You do not want there to be any question as to your lucidity or capacity in drafting the will, as these are grounds for invalidating it. The will must be written, signed by the person making the will, and witnessed by at least two people. Alabama does not recognize handwritten (or holographic) wills, so you will at the very least need to type the will if you decide to proceed on your own.
It is not necessary to hire a lawyer to do this – you can draft one on your own and it will still be valid. However, drafting a will can be somewhat complex, particularly if your estate is large. Hiring a lawyer will ensure that your will is valid, legal and that the property will pass to your heirs as you intended. A lawyer will also be able to offer advice on cost-saving exercises and the tax effects of the distribution of your estate. Lawyers can also ensure your will is self-proving, meaning that the heirs save time in the probate process by avoiding the requirement of the witnesses coming before the court to swear as to the testator’s signature.
Once you have drafted and executed the will properly, it is valid for all purposes for the rest of your life, with one exception. If you remarry, and you have not included your new spouse in the will, then the court may be able to modify or revoke the terms of the will and assume that you intended to include your spouse, but merely forgot. Generally speaking, unless a prenuptial or post-nuptial agreement says otherwise, a married person cannot completely exclude their spouse from a portion of the estate.
You should keep the original copy of your will in a safe place, such as a safety deposit box. If you hired a lawyer to draft the will, you should ask them to keep a copy as well. Should you decide to change the will for any reason, such as if you acquire a larger estate, remarry, or have more children, then you will usually need to create a new will that explicitly revokes the second. You may be able to add a ‘codicil,’ which amends a portion of the will as long as it meets the same formalities of a will. A lawyer can ensure that this is done properly to avoid any confusion after your death, and will be able to counsel you as to whether a codicil will be sufficient, or if it would be better to redraft your will entirely.
In addition to a will, it is worth considering whether you need other documents concerning the inheritance or power of your estate.
Probate means ‘to prove,’ and is the process whereby the court ensures that the will is valid and that all of the property is actually disposed of properly, particularly real property. Anyone named in the will who is either a personal representative of the decedent, a recipient of property, someone with interest in the property, or someone in possession of the will itself, may request the court to probate the will. The will is almost always filed for probate in the county where the deceased lived, and it should be filed for probate within five years of the testator’s date.
It is better to have a probate lawyer assist you in the probate of the will, as the process can be complex, and the judge will be unable to advise you of the law. The steps to probate the will are as follows:
Probate can be a lengthy process, usually at a minimum of 6 months. If there is a contest as to the validity of the will or unknown claims that are disputed, then the process can take much longer.
In Alabama, any ‘interested person’ can contest the will. An interested person is someone who is either listed as a beneficiary in the will itself or someone who would receive a portion of the estate if the will is found to be invalid. A person can contest the will if they can demonstrate that the will does not reflect the true intention of the testator, that the will was improperly executed, or if there is evidence that the testator was not of sound mind when he executed the will or was under undue influence.
Undue influence can be shown if the decedent had a confidential relationship with a person in an influential position, who was controlling and dominant, and used that power to pressure or convince the decedent to draft the will in a way that would benefit that person. A common example of this is a caregiver for an elderly person who exerted their influence to convince their patient to change their will at the last moment, with a large portion being given to the caregiver. The Anna Nicole Smith case is an example that springs to mind.
Sometimes, a will may contain a no-contest clause, which states that if someone challenges the will, he will be completely disinherited. However, Alabama does not consistently enforce these clauses, and judges usually apply the clause to prevent frivolous petitions. If the will is successfully contested and found to be invalid, then the property will be distributed as under Alabama’s intestacy scheme.
Obtaining a lawyer to help prepare your will is not required, but it is strongly recommended. Lawyers will be able to give you advice on minimizing the inheritance tax implications or help you set up a trust for your family. They can draft the will and ensure it will be legally valid and binding to carry out your desires after you’re gone. Get in touch with a licensed and experienced Alabama probate attorney today to help you ensure the well-being of your family, even when you will not be around to do so yourself.