A Last Will and Testament is one of the fundamental documents in an estate plan. A will allows you to provide instructions for the distribution of property that passes through your estate, nominate a personal representative to administer your estate, and identify the person you would want to serve as guardian for your minor children.
Huntsville will attorney Sara Doty helps individuals and families throughout North Alabama prepare wills tailored to their family circumstances, assets, and estate planning goals. Whether you are creating your first estate plan, updating an existing will, planning for minor children, or coordinating a will with a trust and other estate planning documents, your will should reflect your wishes and work together with the rest of your plan.
WHAT DOES A WILL DO?
A Last Will and Testament allows you to provide legally enforceable instructions concerning certain property and decisions after your death. A properly prepared will can address several important parts of your estate plan.
Through your will, you can:
- Direct the distribution of probate property. You can identify the individuals, charities, or other beneficiaries who should receive property controlled by your will.
- Nominate a personal representative. Your will can identify the person you want to administer your estate, handle claims and expenses, and distribute estate property according to the terms of your will and applicable law.
- Nominate a guardian for minor children. Parents can use a will to identify whom they would want to care for their minor children if a guardian becomes necessary.
- Create trusts for beneficiaries. A will can include provisions establishing a trust to manage inherited property for minor children or other beneficiaries rather than distributing assets outright.
- Provide instructions for particular property. Depending on the circumstances, a will can identify specific gifts and establish how the remainder of the probate estate should be distributed.
A will does not necessarily control every asset you own. Property held in a trust, certain jointly owned property, life insurance and retirement accounts with valid beneficiary designations, and accounts with payable-on-death or transfer-on-death designations may pass outside of your will. For that reason, your will should be coordinated with your asset ownership and beneficiary designations as part of your overall estate plan.
WHAT HAPPENS IF I DON'T HAVE A WILL WHEN I DIE?
When a person dies without a valid will, the person is said to have died intestate. Alabama's intestacy laws determine who inherits property that is part of the probate estate. The distribution depends on which family members survive the person who died, such as a spouse, children, parents, or other relatives.
Dying without a will does not mean that the State of Alabama automatically receives your property. Instead, Alabama law establishes an order of inheritance for relatives when there is no valid will. Only in circumstances where there is no person legally entitled to inherit would estate property potentially pass to the state.
Without a will, you also lose the opportunity to nominate the person you would prefer to serve as personal representative of your estate or to state whom you would want to serve as guardian for your minor children. The probate court may then have to address those matters without written instructions from you.
Creating a will allows you to make many of these decisions for yourself rather than relying solely on Alabama's default rules.
WHAT ARE THE REQUIREMENTS FOR A VALID WILL IN ALABAMA?
Alabama law establishes specific requirements for a valid will. In general, the person making the will—the testator—must have the legal capacity to make a will, and the will must be executed in accordance with Alabama law.
For a traditional written will, Alabama law generally requires the will to bein writing, signed by the testator, and witnessed by at least two individuals who sign after witnessing the testator sign or acknowledge the will.
Proper execution is important. A document that expresses someone's wishes but does not satisfy Alabama's legal requirements may not be admitted to probate as a valid will.
Wills are also commonly prepared with a self-proving affidavit, which can simplify proof of the will during probate by providing sworn evidence concerning its proper execution.
CAN A WILL AVOID PROBATE IN ALABAMA?
A will does not avoid probate. Instead, a Last Will and Testament provides instructions for how property that is subject to the will should be handled through the probate process. After death, the will is generally submitted to the appropriate probate court so that it can be admitted to probate and the administration of the estate can begin.
Some assets may pass outside of probate regardless of what a will says. Depending on how they are structured, these may include assets held in a properly funded trust, life insurance and retirement accounts with valid beneficiary designations, certain jointly owned property with survivorship rights, and accounts with payable-on-death or transfer-on-death designations.
This is why a will should be considered as one part of a broader estate plan. Your will, trusts, beneficiary designations, and ownership of assets should be coordinated so that they work together to accomplish your wishes.
If an estate does require probate, I also assist executors and families with probate and estate administration in Alabama.
DO I NEED A WILL OR A TRUST?
Wills and trusts serve different purposes, and choosing between them depends on your family circumstances, assets, and estate planning goals. For some individuals, a will-based estate plan may provide the appropriate foundation. For others, a trust may offer additional flexibility for managing and distributing assets.
A will can direct the distribution of probate property, nominate a personal representative, nominate guardians for minor children, and establish trusts that take effect after death. However, a will generally must be administered through probate to control property passing under its terms.
A revocable living trust can hold and manage assets during your lifetime and provide instructions for their management and distribution after your death. Assets properly transferred to the trust generally can be administered according to the trust without passing through probate.
Many trust-based estate plans also include a will because the documents perform different functions. The appropriate approach depends on your particular circumstances rather than simply whether a will or a trust is “better.”
WHEN SHOULD YOU UPDATE YOUR WILL?
Creating a will is not necessarily a one-time event. Your estate plan should be reviewed periodically and after significant changes in your life, family, or finances to make sure it continues to reflect your wishes.
You may want to review or update your will after:
- Marriage or divorce
- The birth or adoption of a child or grandchild
- The death of a spouse, beneficiary, personal representative, or other person named in your will
- A significant change in your assets or financial circumstances
- Purchasing or selling significant property
- Changes in relationships with beneficiaries or the individuals you have selected to serve in important roles
- Moving to or from another state
- Changes in the law that may affect your estate plan
Even if you have not experienced a major life change, periodically reviewing your will and other estate planning documents can help identify provisions that no longer reflect your circumstances or intentions.
TALK WITH A HUNTSVILLE WILL ATTORNEY
Every family and estate is different. Whether you are preparing your first will, updating an existing estate plan, planning for minor children, or deciding whether a will or trust is appropriate for your circumstances, I can help you create a plan designed around your needs and goals.
As a Huntsville will attorney, I work directly with individuals and families throughout Madison County and North Alabama to prepare wills and coordinate them with trusts, powers of attorney, healthcare directives, beneficiary designations, and other estate planning documents.
If you are ready to prepare or update your will, contact Sara Doty Attorney at Law, LLC to schedule a consultation.
Call (256) 519-9970 or contact my office online to schedule a consultation.
