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Alabama Estate Planning - wills, trusts, power of attorneys & living wills

This page provides information about Alabama estate planning, which includes wills, trusts, power of attorneys, advanced healthcare directives, & living wills.

Estate Planning in Alabama


If you are an adult in Alabama, you need a well-written will. You may also need other estate planning documents. If you already have a will, it is a good idea to get a will “checkup” after any major life event, such as a marriage, childbirth, divorce or remarriage. A will does not just have to do with assets; it also lets you to nominate a guardian for your children if something were to happen to you.

Frank Ward crafts custom estate plans to meet the varied needs of his clients. Call him if you need a new will or an estate plan checkup.


Frequently Asked Alabama Estate Planning Questions

 

What is a will?


A will, or Last Will and Testament, is a type of document, meeting certain legal formalities, that a person executes while living that does not take effect until after they pass away.  A will allows you to specify who receives assets you own after you are gone.  It can cover real estate, vehicles, furniture, investments, jewelry, money and other things that you own.  A will also lets you nominate an executor or estate administrator – the person who is in charge of making sure the terms of your will are followed.  A well drafted will can also reducing the expense and bureaucratic red tape that your executor and family have to go through in probating your estate. In addition to making sure your assets are distributed according to your wishes, a will also allows you to name a guardian for your minor children.  

 

Who in Alabama needs a will?


If you are an adult in Alabama, you need to have a will.  For example, if you have a minor child, even if you don’t own any real assets or property, you still need a will so that you can nominate a guardian for your child should you pass away.  If you are married, you might assume that all of your assets would automatically go to your spouse if you passed away without a will.  However, that is not what the Alabama law says. In Alabama, if you have children or parents who are also living, then your spouse would only receive a portion of your estate.  The bottom line is that if you die without a will, someone will get your assets, but it may not be who you would want to receive your property or in the portions you would want.  Even I situations where a person has transferred the bulk of their assets during their lifetime through a living trust, the person still still needs a will to handle any straggling assets that did not make it into the trust or that the person acquires after creating the trust.

 

How old does a person have to be to make a will in Alabama?


In Alabama a person must be at least 18 years of age to make a will.

 

What mental capacity to must a person have to make a will in Alabama?


In Alabama a person must have testamentary capacity at the time they make their will in order for it to be valid. However, a court will presume a person had capacity to execute a will unless proof is produced to show otherwise. Just because a person is not as mentally sharp as they used to be, does not mean they lack testamentary capacity. The Alabama Supreme Court has stated that “to possess testamentary capacity, on must be able to recall the property to be devised, the desired disposition of the property, and the persons to whom he or she wishes to devise the property.” Ex parte Helms, 873 So.2d 1139, 1147 (Ala. 2003).

 

Who should I nominate as my executor?


You should give careful consideration to who you nominate to be your executor.  The executor in many ways steps into your shoes when administering your estate.  He or she operates in a fiduciary capacity. It is his or her responsibility to make sure the terms of your will are complied with.  It is very important that the person you select be honest and trustworthy.  It is also important that they have the mental capacity and maturity to handle the affairs of your estate.  It is also a good idea to nominate at least one backup executor in case your first choice passes away before you or is otherwise unable to fulfill the role of executor.

 

Does all of my property pass through my will?


There are certain types of property or assets that do not become part of the probate estate and pass to beneficiaries outside of the terms of your will.  For example, if you and your spouse (or someone else) on real estate via a deed with joint tenancy with right of survivorship language, then the property. Will pass to the other joint tenant immediately upon your passing and not be subject to the terms of your will.  401k and IRA account also generally pass to the beneficiaries named on those accounts outside of your estate.  Bank accounts and CDs can also pass outside your estate, depending upon how they are set up.  Life insurance policies generally pass directly to the insurance beneficiary directly.  Property held in certain valid trusts also pass outside of your estate.  For this reason, estate planning does not end at having a valid will, you must also be cognizant of assets that may pass outside of your will and make sure that you have those set up to pass according to your wishes.

 

How long is my will good for and when should it be updated?


While wills do not expire, but they may, as a general rule, be revoked at any time.  The most common way of revoking a will is through the execution of a new will.  If you have existing will, it is a good to review it periodically to make sure that it still comports with your wishes and that circumstances have not changed.  You should certainly have your will reviewed to see if updates are needed after significant life events.  For example. if you get married, have a child, get a divorce, get remarried or have a substantial change in your financial situation, then it is probably time to update your will.   Other times to update your will include when someone who was listed as a beneficiary, executor, or guardian passes away or becomes incapacitated.

 

Do I need a living trust to avoid probate?


Living trusts have been promoted as method of avoiding the probate process.  In some situation an inter vivos trust can be a good estate planning devise.  In Alabama, where the burden and expense of probate is relatively light compared to other states, the estate planning needs of most people can be met adequately by a well-drafted will, durable power of attorney and an advance heath care directive (“living will”).  That being said, each person’s situation should be evaluated on its own merits, and you should consult with an estate planning lawyer before making a decision about whether or not to create a living trust.

 

What estate planning documents do I need other than a will?


The exact estate planning documents you need is dependent upon your individual situation.  The most common documents included in an estate plan are a durable power of attorney and an advanced health care directive (“living will”).  To determine what estate planning documents best accomplish your goals, you should speak with an Alabama estate planning attorney.

 

Is it okay a “Do-it-Yourself” will or estate planning form or kit?


There are a number of will and estate planning do-it-yourself websites, books, and forms out there.  However, relying on the do-it-yourself approach is a potential disaster waiting to happen. Does the document meet all the legal requirements? Was it executed and witnessed in a proper manner? Does it take tax implications into account?  The worst part is that you may never find out about a defect in your estate plan.  Defects or less than ideal terms might not become apparent until after you pass away, and your loved ones may be left dealing with the aftermath.  It is just not worth the risk, especially when a custom estate plan, crafted for you by an estate planning attorney can be had at a reasonable price – probably for a lot less than you think.  The peace of mind a professional estate plan bring is well worth the marginal additional cost.