Executing a will means signing it correctly. If you mean carrying out a will after someone dies, that is the executor's job: see what an executor does in Alabama, step by step.
Under Alabama's usual execution rules, you must be at least 18 and of sound mind, the will must be in writing, you must sign it, and at least two witnesses must sign it, each having seen you sign or acknowledge your signature or the will (Ala. Code §§ 43-8-130, 43-8-131).
A notary is not required, though a notarized self-proving affidavit makes the will easier to probate. If the signing goes wrong, the probate court can reject the will, and your property may pass as if you had no will.
How to execute a will in Alabama, step by step
Read the final will before anyone signs. Once it is signed and witnessed, any change takes a new signing.
Have two witnesses and a notary present. The notary is for the optional self-proving affidavit.
Sign the will while the witnesses watch. If you cannot sign, someone else may sign your name for you, in your presence and at your direction (§ 43-8-131).
The witnesses sign. Signing at one sitting, with everyone in the room, avoids later questions about who saw what.
You and both witnesses sign the self-proving affidavit before the notary.
Store the signed original where it is safe, and tell your executor where it is. Your executor will usually need the original to probate it.
Who should witness your will
Any person generally competent to be a witness may witness a will in Alabama, and a will is not invalid because a beneficiary signed it as a witness (§ 43-8-134). We still use two adult witnesses who receive nothing under your will, which removes an obvious argument if someone later challenges it.
Notarizing a will in Alabama: the self-proving affidavit
A will does not need to be notarized to be valid in Alabama. The notary's job is the self-proving affidavit. In it, you swear that you sign willingly or willingly direct someone to sign for you, and that you are 18 or older and of sound mind. The witnesses swear to the signing, including that they signed in your presence and hearing (§ 43-8-132).
What it does in probate. A self-proved will is probated without testimony from the witnesses, unless someone proves fraud or forgery affecting the affidavit (§ 43-8-132(c)). Without the affidavit, at least one witness usually has to testify. If the witnesses have died or moved out of state, the court may accept other proof, such as a witness's deposition or proof of your handwriting and at least one witness's handwriting (§§ 43-8-167, 43-8-168).
What it does not do. It does not prevent a contest over your capacity or undue influence (§ 43-8-215).
If your will has none. A properly signed and witnessed will can be made self-proved later if you and your witnesses can truthfully complete the statutory acknowledgment and affidavits before a notary (§ 43-8-132(b)).
You usually sign your final documents at our Huntsville office. We provide the witnesses and notary your documents require. For a will, you and the witnesses sign the will and the affidavit at the same sitting.
Handwritten wills and wills signed outside Alabama
Handwritten wills. A handwritten will signed under Alabama's usual execution rules still needs the required signature and two witnesses (§ 43-8-131). Do not rely on one without witnesses.
Wills signed in another state. Alabama generally honors a will that met the law of the place where it was signed or where you lived, so an unwitnessed handwritten will that was valid there may still count here (§ 43-8-135). If you sign in another state, a notary there can complete the Alabama self-proving affidavit (§ 43-8-132(a)). Moved here with a will from another state? See what to update after moving to Alabama.
Mistakes that can void a will or invite a contest
A will can be contested before probate or, generally, within 180 days after it is admitted to probate, on grounds such as improper signing, lack of capacity or undue influence (§ 43-8-215). Avoid these mistakes:
Too few witnesses. Without two, the will is generally not valid (§§ 43-8-131, 43-8-135).
Signing when your capacity is in doubt. Sound mind means that when you sign, you know the property you are leaving, recognize the people who would naturally be expected to inherit from you, and understand that you are making a will. Alabama presumes capacity, but a challenger can overcome that with evidence of your condition when you signed. If illness, medication or memory is a concern, tell us early.
Letting a beneficiary arrange the will. Alabama courts can treat a favored beneficiary's role in preparing a will, such as hiring the lawyer or choosing the witnesses, as evidence of undue influence.
Leaving an older will in place. Your new will should say that it revokes all earlier wills (§ 43-8-136). Tell us where any older originals are, so they do not cause confusion.
Writing on the signed original. Changes written on a signed will are not witnessed, and marks on it can raise questions about whether you meant to revoke it.
Changing or revoking your will
To change it, sign a new will or a codicil (a formal amendment) with two witnesses, just like the original (§§ 43-8-1, 43-8-131). A list of heirlooms kept apart from the will is binding only in limited cases; see how Alabama treats a personal property memorandum.
To revoke it, sign a new will that says so, or destroy the original with the intent to revoke it (§ 43-8-136). Destroying a newer will does not automatically bring back an older one (§ 43-8-138).
After a divorce, gifts to your former spouse and any role the will gives them as executor, trustee or guardian are revoked, unless the will expressly says otherwise (§ 43-8-137).
After a marriage or a new child, the will still stands. But a spouse you marry after signing, or a child born or adopted after, may be entitled to a share the will does not give (§§ 43-8-90, 43-8-91).
Review your will after any of these events, after a move, and every few years.
Beyond the signature: what your will should cover
Who you are, including any other names you have used and the names of your spouse and children.
Your executor. Alabama calls this person your personal representative: after your death, the probate court usually appoints the person you named to gather your assets, pay your debts and distribute the rest as the will directs.
A guardian for minor children, if neither parent can raise them. A will is the usual place to name one, though Alabama also accepts a separate writing you sign that is witnessed by two people or acknowledged before a notary (§ 26-2A-71). More on naming a guardian for your children.
Who receives what, with a clause for everything you do not list.
What stays out. Keep passwords and account details in a separate private document, because a probated will is recorded in the probate court's public records. Put detailed funeral wishes in a letter your family can find quickly, because the will may not be read until after the service.
Talk with Sarah about your will
Schedule a consultation with Sarah S. Shepard, our wills and trusts attorney in Huntsville. Sarah prepares wills and trust-based plans for families in Huntsville and North Alabama, and you work with her from the first consultation through the signing. Because our firm also handles probate for executors, she drafts each will with the probate court in mind.
Sarah S. Shepard is an estate planning attorney at Sparkman, Shepard & Shepard, LLC in Huntsville, admitted to the Alabama State Bar in 2012. More about Sarah S. Shepard.