A Last Will and Testament or Will directs who takes your assets after death and who is responsible for administering your estate. It is your opportunity to decide — clearly and legally — what happens to everything you have worked for after you are gone. Without one, those decisions are taken out of your hands entirely and handed over to the state. Alabama law contains a set of default rules that will determine who controls your estate and who gets your assets. Very often, the default rules do not match your wishes. Even if they do, administering an estate without a will is cumbersome and expensive. While with a will the process is simpler and smoother.
At Alabama Property & Estate Law, LLC, our estate planning attorney in Madison County and Limestone County helps individuals and families create wills that are legally sound, clearly written, and built around their specific circumstances. A will is not a one-size-fits-all document, and it should not be treated as one. Contact us at 256-489-0038 or send us a consultation request to get started.
Send us a Consultation Request
What Does a Will Actually Do?
At its core, a will is a written set of instructions that takes effect when you die. It tells the world — and the probate court — who gets what, who is responsible for carrying out your wishes, and, if you have minor children, who should step in to care for them.
The person creating the will is called the testator. The testator names beneficiaries — the people or organizations who will receive specific assets — and designates a personal representative, sometimes called an executor, to handle the administration of the estate. The executor is responsible for gathering assets, paying any debts or final expenses, filing taxes if required, and ultimately distributing what remains according to the will's instructions.
A well-drafted will also gives you the ability to:
• Name a guardian for your minor children so that the court is not left guessing who you would have chosen
• Make specific gifts — a piece of jewelry to a daughter, a vehicle to a son, a sum of money to a charity you care about
• Disinherit someone who might otherwise inherit under Alabama law
• Provide instructions for the care of a pet
• Create a distribution schedule for minor beneficiaries
• Coordinate with other planning tools — such as a trust — to manage how and when beneficiaries receive their inheritance
What Makes a Will Valid in Alabama?
Not every document that looks like a will is legally enforceable. Alabama has specific requirements that must be met for a will to hold up in probate court. If any of these requirements are not satisfied, the court may reject the will entirely, which means your estate would be distributed as if you had never written one.
To be valid under Alabama law, a will must meet the following standards:
• The Testator Must Be of Legal Age and Sound Mind. Alabama requires that the person making the will be at least 18 years old and of sound mind at the time of signing. Being of sound mind means understanding what a will is, knowing what you own, recognizing who your family members are, and understanding that you are creating a document that will direct the distribution of your belongings after death. A will signed during a period of mental incapacity — or under the influence of someone else's pressure — can be challenged and potentially voided by the court.
• The Will Must Be in Writing and Signed. Alabama does not recognize oral wills — also known as verbal or spoken wills — in most circumstances. Your will must be written and signed by you, the testator. If you are physically unable to sign your own name, Alabama law does permit another person to sign on your behalf, but only if you are present and you direct them to do so.
• The Will Must Be Witnessed. Alabama law requires that at least two witnesses sign the will. These witnesses must be present when the testator signs the document, and they should not be adults who are not named as beneficiaries in the will. Having an interested party — someone who stands to inherit — serve as a witness creates a legal conflict and can put that person's gift at risk. A properly witnessed will is much harder to challenge in court.
• Notarization and Self-Proving Wills. While notarization is not technically required for a will to be valid in Alabama, having the will notarized — and executed as a self-proving will — is highly advisable. A self-proving will includes a notarized affidavit from the witnesses confirming that the signing was done properly. This affidavit allows the will to move through probate without requiring the witnesses to appear in court to testify, which simplifies and speeds up the process considerably.
What Happens If You Die Without a Will in Alabama?
Dying without a will is called dying intestate. When that happens, Alabama's intestacy laws take over, and the state follows a rigid formula for distributing your belongings — one that has no knowledge of your relationships, your intentions, or the people who mattered most to you.
Under Alabama's intestacy laws, assets generally pass first to a surviving spouse and children. But the formula gets more complicated depending on your specific situation. For example, if you are married but have children from a prior relationship, your spouse and those children may end up splitting your estate in a way you never intended. If you are unmarried with no children, your assets may pass to parents, siblings, or more distant relatives — even if you had a long-term partner who was central to your life but receives nothing under the law.
Beyond who gets what, dying without a will also means there is no one you have personally designated to handle your estate. The court will appoint an administrator — a role similar to an executor — who may or may not be someone you would have chosen. And without a guardian named in writing, the court will also decide who raises your minor children, guided by what the judge believes is in their best interest, not necessarily what you would have wanted.
Intestate estates also tend to move more slowly through probate and can generate more family conflict, more court involvement, and ultimately more expense. A will does not eliminate the probate process, but a clear, properly drafted one makes it far more straightforward.
What a Will Cannot Do
Understanding the limits of a will is just as important as knowing what it can accomplish. Certain assets may pass outside of a will entirely, regardless of what your will says. Attempting to direct these assets through your will creates confusion and, in some cases, conflict — because the will's instructions may simply not apply. It is important to work with an attorney to coordinate your assets so that any that pass outside of your will are fully accounted for in your overall plan.
Assets that typically pass outside of a will include:
• Retirement accounts (such as a 401(k) or IRA), which pass directly to the beneficiary you named on the account
• Life insurance policies, which pay out to your named beneficiary
• Property held in a trust, which is governed by the trust's own terms
• Real estate or bank accounts held with another person in joint tenancy with right of survivorship, which automatically pass to the surviving owner
This is one reason why estate planning should never be viewed as just creating a will. A complete plan looks at all of your assets together and makes sure each one is directed the right way — whether through the will, a beneficiary designation, a trust, or some combination of all three. Our attorneys can help you see the full picture and make sure nothing falls through the cracks.
The Risks of DIY Wills
Online will templates and document-generator websites can be a great tool for very simple estate plans. Very often you will get a will that “checks the boxes” needed to be a valid will. However, they often miss important state specific items and language. Further, they are only as good as the information that you know to give. Impersonal websites, even where attorney review is included, do not take the time to sit down with you and get to know your personal situation. Often overlooked items are children from a previous marriage, disabled beneficiaries where an inheritance would affect their government benefits, or coordination with assets that transfer outside of probate and the will. These are the kinds of details that, if overlooked, can unravel an otherwise straightforward plan.
We regularly work with families who come to us after a loved one has passed with a DIY will that cannot be admitted to probate — because it was not properly witnessed, because the language was too vague to be enforceable, or because it contradicted the account beneficiary designations the person set up years earlier. By that point, there is very little anyone can do. The document that was supposed to make things easier has instead made them far more complicated and expensive. Further, we have yet to see an online generated will that properly excludes an inventory, accounting, and bond while giving the personal representative the powers needed to administer the estate with minimal court involvement. Missing these important aspects, probate is more complicated, cumbersome, and difficult than it otherwise should be.
When Should You Update Your Will?
Creating a will is not a one-time event. Life changes, and your will should change with it. We recommend reviewing your will before and after major life events. For example, any time one of the following happens:
• You get married or divorced
• You have or adopt a child or grandchild
• A beneficiary or executor named in your will passes away
• You buy or sell real estate or a business
• Your financial situation changes significantly
• You move to a different state
Even if none of these events have occurred, it is good practice to review your will every few years to make sure it still reflects your wishes and that the people you have named are still the right choices.
How a Will Fits Into a Broader Estate Plan
A will is often the foundation of an estate plan, but it is rarely the whole thing. Depending on your situation, your plan may also include a trust to manage assets outside of probate, a durable power of attorney to allow someone you trust to handle financial matters if you become incapacitated, and an advance healthcare directive — sometimes called a living will — to document your medical wishes.
If you are considering whether a trust might be right for you alongside a will, you can learn more on our Revocable Living Trusts in Alabama page. Many clients find that the two work well together — the will handles what the trust does not, and the trust keeps certain assets from going through probate at all.
Our goal is to help you build a plan that works the way you intend it to — one that protects your family, reflects your wishes, and holds up when it matters most.
Contact a Wills Attorney in Madison County or Limestone County Alabama Today
You have worked hard for what you have. A properly drafted will makes sure it goes where you want it to go, to the people you want to have it, in the way you intend. At Alabama Property & Estate Law, LLC, our estate planning attorney takes the time to understand your situation and create a will that truly serves your family's needs.
Do not wait for the right moment to get started. Contact us today by calling 256-489-0038 or sending us a consultation request online. We are here to help.