Alabama Last Will and Testament
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Alabama Last will and Testament Law
Note: This summary is not intended to be an all inclusive discussion of the law of wills in Alabama, but does provide basic and other information. This discussion does not include hand written wills.
Who may make a will: Any person 18 or more years of age who is of sound mind may make a will. 43-8-130.
Execution and signature of will: witnesses: Except as provided within section 43-8-135,
Every will shall be in writing, signed by the testator and shall be signed by at least two persons each of whom witnessed either the signing or the testator’s acknowledgment of the signature or of the will. 43-8-131.
However, it is not necessary that the attestation be at the personal request of the testator if it is done in the testator’s presence with his knowledge and consent. Ritchey v. Jones, 210 Ala. 204, 97 So. 736 (1923). If it should develop that the instrument was signed by the testator after the witnesses subscribed and not in their presence, the will is void. Reynolds v. Massey, 219 Ala. 265, 122 So. 2d 29 (1929). Yet it is not necessary for a witness to actually see the testator sign the instrument; just an acknowledgment to the witness by the testator that h/she executed the will is sufficient.
Self-proved will: Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer’s certificate, under official seal. 43-8-132.
This section was enacted as a free-standing act in Acts 1982, No. 82-1209. A self-proved will may be admitted to probate as provided in this section without the testimony of any subscribing witness, but otherwise it is treated no differently than a will not self-proved. Thus, a self-proved will may be contested (except in regard to signature requirements), revoked, or amended by a codicil in exactly the same fashion as a will not self-proved.
Who may witness will: Any person generally competent to be a witness may act as a witness to a will. A will or any provision thereof is not invalid because the will is signed by an interested witness.43-8-134.
In Alabama a suitable attestor is one who at the time of execution was competent to testify in court as to the facts of the execution. Kumpe v. Coons, 63 Ala. 448 (1879) (beneficiary was a competent witness) Subsequent incompetency of a witness will not invalidate a will, if the witness was competent at the time of attestation
Choice of law as to validity of execution: A written will is valid if executed in compliance with Alabama law, or if its execution complies with the law atthe time of execution of the place where the will is executed, or with the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national. 43-8-135.
Thus, if testator is domiciled in State 1 and executes a typed will merely by signing it without witnesses in State 2 while on vacation there, the court of this state would recognize the will as valid if the law of either State 1 or State 2 permits execution by signature alone. Or if a national of Mexico executes a written will in this state which does not meet the requirements of § 43-8-131 but meets the requirements of Mexican law, the will would be recognized as validly executed under this section. The purpose of this section is to provide a wide opportunity for validation of expectations of testators.
Revocation by writing or by act; when witnesses required:
(a) A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) A will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence by his consent and direction. If the physical act is by someone other than the testator, consent and direction of the testator must be proved by at least two witnesses.43-8-136.
Although, he section specifically permits partial revocation by a subsequent instrument executed as a will, but not by physical act. The court is free to apply its own doctrine of dependent relative revocation. Also, the section does not affect prior law in regard to the case of accidental destruction which is later confirmed by revocatory intention.
Revocation by divorce or annulment If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator’s remarriage to the former spouse. 43-8-137.
Incorporation by reference: Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. 43-8-139.
Who may have will probated: Upon the death of a testator, any executor, devisee, or legatee named in the will, or any person interested in the estate, or who has custody of such will may have the will proved before the proper probate court. 43-8-160. A resident of Alabama, who had equitable interest in the assets of a nonresident deceased, who owned Alabama assets may ask the appropriate court to probate the will and appoint an administrator with the will annexed at the discretion of the court. Nashville Trust Co. v. Cleage, 246 Ala. 513, 21 So. 2d 441, 1945 Ala. LEXIS 258 (1945).
Time limit for probate: Wills shall not be effective unless filed for probate within five years from the date of the death of the testator. 43-8-161.
Where will probated:
A will, whether of real or personal property, must now be proved in the probate court, before any legal rights can be asserted under it; and it may be contested in that court before it has been admitted to probate. When it has once been probated in that court in the mode prescribed by the statute, it cannot be contested except by bill in chancery by a person interested therein who has not already contested it. Knox v. Paull, 95 Ala. 505, 11 So. 156, 1891 Ala. LEXIS 383 (1891).
Wills must be proved in the several probate courts as follows:
(1) When the testator, at the time of his death, was an inhabitant of the county, in the probate court of such county.
(2) When the testator, not being an inhabitant of the state, dies in the county, leaving assets therein, in the probate court of such county.
(3) When the testator, not being an inhabitant of the state, dies out of the county, leaving assets therein, in the probate of the county in which such assets, or any part thereof, are.
(4) When the testator, not being an inhabitant of the state, dies, not leaving assets therein, and assets thereafter come into any county, in the probate court of any county into which such assets are brought.
(5) In the probate court of the county designated by testator in the will if the testator owns property in such county at the time of his death.43-8-162.
Duty of custodian of will after death of testator; liability: After the death of a testator and on request of an interested person, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. Any person who wilfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to the penalty for contempt of court.43-8-270.
A person authorized by a court to accept delivery of a will from a custodian may, in addition to a registrar or clerk, be a universal successor or other person authorized under the law of another nation to carry out the terms of a will.
The prior Alabama statute further provided that upon application to the probate court by any person interested, the judge had to issue a citation to any person alleged to have the custody or possession of any last will, requiring such person to produce the will; and any person, who failed to produce such will or make an affidavit, could be committed to jail; and h/she was also liable to all persons interested for all damages caused by withholding the will. Former § 43-1-40 (1975).
Alabama Wills FAQ
Is it necessary to have my Will notarized?
A. With the exception of Louisiana, it is not required that you have your signature notarized in any state. You may still need a Notary so as to execute the Self-Proving Affidavit. When a Will is presented to the court to be probated, the first question is proper execution. Our Wills include any required Certification form are Self-Proving Affidavit used in that state.
I wish to make changes to an existing Will. What form do I use?
A. An existing Last Will and Testament can the amended using a form known as a codicil. A codicil is an instrument that specifies the provision to be modified and the new provision. It is executed in the same manner as the existing will. Typically, this means two witnesses and the execution of a self-proving affidavit.
Basic changes such as providing for a new executor can be easily made using a codicil. If the amendments or changes are more extensive it might be well to consider executing an entire new instrument. Remember, the will must state its provisions with sufficient clarity for the court to determine the wishes of the testator. Frequently, this is easier done when executing a new instrument.
Do I list life insurance policies on my Will?
A. You can mention life insurance and the beneficiaries you named in the policy but it is not necessary. If you named your estate as the beneficiary you need to specify who is to receive the proceeds in your Will.
How is my estate distributed to contingent beneficiaries (minor/adult children if both parents are deceased?
A. All proceeds of the estate would be put in trust for the benefit of the minor children by your trustee, or directly distributed to adult children/beneficiaries.
How can minor children be listed as beneficiaries (primary or contingent) on a life insurance policy?
A. You can list beneficiaries to share together or contingent meansing if the first dies it goes to the other.
Does a new Will void a living trust?
A. NO, not unless the Will revokes the trust if it is revocable.
Do I have to list everything in Art. 3 of my Will?
A. Art. 3 is for specific bequests only. If everything goes to the same person/people, you do not need to list anything in Art. 3.
Can I name the same person as trustee, guardian, and executor on my Will?
A. Yes. If you name your spouse as your executor, the alternate executor can be the same person as the trustee and/or guardian.
If my children are now adults, do I need to do a new Will?
A. Not for that reason only. If you move to another state, or if your marital status changes, it is recommended that you execute a new Will. If you already have a Will with them named as you desire it is not necessary.
What signatures are required for a Wills?
A. A Will is signed by you and 2 witnesses all in the presence of each other. If you complete a Self-Proving Affidavit also a notary would be present and notarize the self-proving affidavit.
What do I do with my Will after it is complete? Must it be filed with the state?
A. You keep your original in a safe place. You may choose to let someone know where it can be found, and you can give a copy to someone if you wish. In some States you can file your Will with the Court before your death. We can provide you the information for your State.
What is the difference in a Will, Living Will and Living Trust?
A. The Will lets you indicate what happens to your estate after your death. The Living Will lets you indicate your preference regarding life support, in the event you are in a critical condition and unable to let your wishes be known. A Living Trust allows you to establish a Trust to transfer assets out of your personal name into the name of the Trust, while you are living.
Does a Will avoid probate?
A. No. A Will is probated to make it effective. For small estates there are proceudres to expedite at low cost.
I want to include my minor grandchildren in my Will. How do I do that?
A. You can leave them something in Article 3. Also, "per stirpes" in a Will means that if the parent dies, his/her inheritance goes to their children (your grandchildren).
A. A self-proving affidavit is not required to make your Will valid but it makes probate easier if it is done at the time the Will is made.
There was an error on my wife's Will, and she lined through the error and signed beside it. Is that OK?
A. Yes, if the correction was made prior to signing, witnessing, and notarizing.
What is the meaning of "per stirpes?" It was used in my Will form.
A. "Per stirpes" is a term used in Wills to describe how property should be distributed when a beneficiary (who has children) dies before the testator, or Will maker. Here's how per stirpes works.
"A"leaves his house jointly to his daughter Jayne and his son John. John dies before Jayne, leaving three young children. John's Will states that heirs of a deceased beneficiary are to receive the property PER STIRPES: Jayne will receive one-half of the property, and John's three children will share his half in equal shares.
Per stirpes contrasts with "per capita," another way of distributing a dead beneficiary's gift. Here's how per capita works:
Like the example above, but John's Will states that the property should be divided PER CAPITA: Julie and the three grandchildren will each take an equal share - one fourth.
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