Wills Attorney in Orange Beach, AL
A last Will and Testament is a document you create to instruct how you want your property distributed upon your death. Who gets the house? Who gets your personal possessions? Who gets a bank account? Who takes care of the pets?
These are just some of the questions upon which a Will answers and instructs, and just some of the information we will obtain to draft a solid last Will and Testament that can stand up in probate and prevent challenges to its validity.
What Is the Purpose of a Will in Alabama?
The person creating a Will is known as a testator. The testator devises property and assets to named beneficiaries, those persons who will receive your property, in a Will. This gives testators far more control over assets – both while alive and after they pass away.
As such, the Will serves four general but important purposes:
- Allows property owners to control what happens to their possessions, even after they die.
- Protects the decedent’s heirs, including minor children by appointing a guardian.
- Allows you to appoint who you want to oversee the estate.
- Lessens the possibility of family discord and division by having your intent and desires made known with ambiguity.
In order for the Will to work as intended, it must adhere to proper procedures in accordance with the laws of Alabama.
General Requirements of a Will in Alabama
Each state’s requirements of a Will and what makes it valid may differ somewhat, but all states have four requirements that are true no matter what.
- The testator must have testamentary intent, meaning the testator subjectively intended to create the Will.
- The testator must have testamentary capacity, meaning that they understood they were creating the Will at the time of its execution.
- The Will must have been executed without the interference of fraud, duress, undue influence, or mistake.
- The Will must have been duly executed through a proper ceremony––for example, signing the Will and having two witnesses per your state’s law were completed properly.
What If I Do Not Make a Will?
If someone dies without a Will, this is known as dying “intestate.” Should a person die intestate, the state will step in and distribute any property per the intestate laws of Alabama.
There are two key reasons to create a Will, rather than relying on intestacy laws to devise your property, and the reasons relate to family and probate matters.
Family
Intestacy laws aim to pass property in a way that most people would want it to pass, which basically means any property is passed to immediate family members first, like spouse and children, then parents, siblings, grandparents, and so on. Intestacy laws only benefit you if you are happy about your hard-earned property going to your immediate family member.
Intestate laws have predetermined percentages of how your assets will be bequeathed to your spouse and heirs, so each person may not receive the amount or possession you would have intended had you constructed your own Will.
The problem here is that if you have stopped a relationship with a family member, that may not be taken into consideration when the State steps in to disburse your assets. This could result in property, (or even the custody of a minor child) passing to a relative whom you would not wish to be a beneficiary and/or guardian.
Probate
Property governed by intestacy law must pass through probate court first, which can be expensive and time-consuming, leaving fewer benefits and more burdens for your loved ones. That said, a valid Will also goes through probate to implement its provisions. The only difference is a well-crafted Will will proceed through probate court rather quickly and without incident because it’s harder for someone to challenge it.
Further, there are other ways to distribute property according to your wishes while also avoiding probate completely. Speaking with our estate planning lawyer will help you determine what will work best in your specific situation and with your specific assets.
The Risk of “Do-It-Yourself” Wills in Alabama
The expense and lack of control that comes from dying intestate, coupled with the perceived costs of hiring a lawyer to write a Will, has led to a huge increase in the use of “do-it-yourself” Wills. These forms, often found online for a fee, claim to be just as good as a traditional Will prepared by an experienced attorney.
These “one size fits all” documents, however, are not tailored to your unique circumstances. The process of creating a DIY Will is often accompanied by mistakes that open the door to challenges to the validity of a Will upon your death. In fact, a court may dismiss the Will completely. If you decide to try a DIY Will first, keep the following five tips in mind:
- Define who your family members are. For example, if you brought children into a second marriage, make sure who constitutes “family” in your Will.
- Assign and direct the executor to pay debts and expenses, including anything from credit cards to personal loans to funeral expenses.
- Make specific bequests or gifts so that there is no confusion about who gets what.
- Provide a catch-all clause for assets that you do not specifically give away.
- Finally, be specific about people and property as much as you can. Wherever there is any ambiguity there is also room for a challenge.
That said, in the least, it is a good idea to have an attorney review your last Will and Testament to make sure it’s in compliance with state and federal laws.
Contact The Bales Law Firm Today
If you are considering making a last Will and Testament, make sure that you comply with the law and provide very specific instructions in the Will. At The Bales Law Firm, our estate planning attorney, Chris Bales, helps clients in Orange Beach, Gulf Shores, Foley, and Baldwin County create strong Wills that comply with Alabama law, so you don’t have to worry whether or not your Will is constructed properly.
We know how hard you worked for your assets and understand why it is so important to distribute your assets in the way you see fit to do it. Contact us by filling out the online form or calling us directly at 251-213-9343 to schedule a consultation.