Alabama does not require you to have a will. But if you are married, have children, or own a home or accounts in your own name, you should have one.
Without a will, a formula in Alabama law decides who inherits your estate, and the probate court usually appoints someone to settle it. If your children are minors and neither parent survives, a court chooses their guardian. A will lets you make those decisions yourself.
Who needs a will in Alabama?
A will matters most if any of these describe you:
You have young children. Your will is the usual place to name a guardian to raise them if neither parent can. It can also hold their inheritance in a testamentary trust until an age you pick. More on naming a guardian for your children.
You own a home or accounts in your name alone. Without a will, the house and any account with no named beneficiary pass under the formula below, which can leave your spouse and your children owning the house together. See which assets your will controls.
You have a blended family. The formula gives nothing to stepchildren you have not adopted, and it can split your estate between your spouse and your children from an earlier relationship. See estate planning for blended families.
You own a business. Without a will, your ownership passes under the same formula, subject to your business agreements. See estate and succession planning for business owners.
Your adult children live in another state. A will can name one of them as executor. Without one, a relative who lives outside Alabama generally cannot be appointed to settle your estate.
You have ties to another state. A will signed properly where you used to live is generally still valid here, but it may need updating after a move. Real estate in another state may need a separate probate there, which a funded living trust can avoid.
What happens if you die without a will in Alabama?
Alabama's intestate succession statute decides who inherits the property that passes through your estate (Ala. Code §§ 43-8-41, 43-8-42). It generally does not reach property with a new owner already lined up: a house you own with someone "with right of survivorship," an account with a named beneficiary, or property in a funded living trust.
Many married people assume a surviving spouse inherits everything. That is not always true; the result depends on which relatives survive and the value of the estate.
If you are married, your spouse receives:
Everything, if you leave no descendants and no parent.
The first $100,000 plus half of the rest, if you leave a parent but no descendants. Your parent or parents receive the rest.
The first $50,000 plus half of the rest, if all of your descendants are also your spouse's. Your descendants receive the rest.
Half, if at least one of your descendants is not also your spouse's. Your descendants receive the other half.
These shares are figured after debts, expenses and certain family allowances.
Everything that does not go to a spouse passes to the first of these groups with a living member:
Your descendants. Your children share equally. A grandchild generally inherits only if the grandchild's parent died before you; if none of your children survive you, the grandchildren generally share equally.
Your parents, equally.
Your brothers and sisters, half siblings included. The children of a sibling who died before you generally take that sibling's share.
Your grandparents and their descendants, such as aunts, uncles and cousins, generally split between your father's side and your mother's side.
The State of Alabama, if no one in those groups survives (§ 43-8-44).
A few more rules matter:
Adopted children and others. Adopted children inherit from their adoptive parents like biological children. A child born outside marriage inherits from the mother, and from the father if paternity is established. So does a child conceived before your death and born after it.
People the formula leaves out. Stepchildren you have not adopted, an unmarried partner, friends and charities inherit nothing under it.
Who settles the estate. The probate court appoints an administrator, generally choosing first your surviving spouse, then a relative who inherits, then your largest creditor in Alabama (§ 43-2-42). An administrator generally has to post a bond; a will can excuse your executor from it (§ 43-2-851).
An example. You are married, and your only child is a daughter from an earlier marriage. If you die without a will, the formula generally gives your spouse half of your estate and your daughter the other half, whatever you intended (§ 43-8-41(4)). If the house was in your name alone, your daughter can end up owning part of it. With a will, you decide: everything to your spouse, a trust that provides for your spouse and later passes to your daughter, or another plan.
A will replaces the formula, within limits. A surviving spouse can generally claim an elective share of up to one-third of the estate, even against the will, unless the spouse waived that right. See whether you can leave a spouse out of your will.
Does a will have to be notarized in Alabama?
No. Under Ala. Code §§ 43-8-130 and 43-8-131, an Alabama will is valid without a notary if:
you are at least 18 and of sound mind;
the will is in writing;
you sign it; and
at least two witnesses sign it, each of whom saw you sign or saw you acknowledge your signature or the will.
We still have you and your witnesses sign a self-proving affidavit before a notary at the same signing, so the witnesses usually do not have to testify when the will is probated (§ 43-8-132). We provide the witnesses and the notary, usually at our Huntsville office. More on how to sign a valid will in Alabama.
What a will does not do
It does not avoid probate. A will generally has to be probated in court before it can pass property, and probate in Alabama generally takes at least six months. A funded living trust can keep property out of probate; see whether you need a will, a trust or both.
It does not control accounts with a named beneficiary. Life insurance, retirement accounts and payable-on-death accounts usually go to the beneficiary on file, whatever your will says. See beneficiary designations and trusts.
It does not work during your lifetime. A will takes effect only at death. A durable power of attorney covers your finances, and an advance directive records your wishes about life-sustaining treatment.
Questions about wills in Alabama
Do I need a lawyer to make a will in Alabama? No. Alabama does not require one. A lawyer makes sure the will is valid, works with your trust, accounts and beneficiary designations, and says what you intend.
How much does a will cost? We charge flat fees for estate planning, based on the documents and planning your family needs, and we agree on the fee before you engage the firm.
Talk with a Huntsville estate planning lawyer
Schedule a consultation with Sarah S. Shepard to put your will in place. Sarah prepares wills and trust-based plans for families in Huntsville and North Alabama. Because our firm also handles probate for executors, we draft wills with the probate process in mind. More on wills and estate planning in Huntsville.
Has a family member already died without a will? We take estates without a will only for existing clients.
Sarah S. Shepard is an estate planning attorney at Sparkman, Shepard & Shepard, LLC in Huntsville, admitted to the Alabama State Bar in 2012. She prepares wills and trust-based estate plans for families in Huntsville and North Alabama. More about Sarah S. Shepard.