ALABAMA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: Alabama Code, Title 43, Chapter 8 (Al. Code ยง43-8-1, et. seq.).
Trusts:ย Alabama Code, Title 28, Chapters 3 and 3b (Al. Code ยง19-3-1, et. seq.).
Alabama Will Requirements.
Any person who is at least 18 years old and of sound mind may create a valid will in Alabama.ย Individuals are generally considered โof sound mindโ if capable of understanding and remembering that a will is being created, the effects of the will, who stands to benefit from the estate, and how assets will be disposed.
Alabama wills must bear the signatures of the testator (or another person at the testatorโs direction in the testatorโs presence) and at least two witnesses.ย The witnesses must actually observe the testator sign the will or acknowledge that the signature is valid.ย ย
The only prerequisite to witness a will in Alabama is that the individual must be generally competent to act as a witness in the state.ย An Alabama will is not invalidated if a witness has an interest in the will.
Though Alabama wills need not be notarized, an Alabama will can be made โself-provedโ through execution by the testator and the willโs witnesses of a notarized affidavit.ย When a will is self-proved, it can be admitted to probate based upon the affidavit and without testimony from the witnesses.ย The affidavit may be executed at the same time as the will itself or at a future time, as long as the testator and witnesses remain living.
Within the self-proved affidavit, the testator attests that the document was voluntarily signed and created as a will under the testatorโs own volition while the testator had adequate capacity and was not under any undue influence.ย Witnesses likewise attest that the testator voluntarily executed the will with adequate capacity and while under no undue influence.ย The Alabama legislature has published a proposed form for the affidavit, at AL Code ยง43-8-132.
An Alabama will may incorporate by reference any document in existence when the will is created if the document and intent to incorporate are sufficiently identified in the will.ย Alabama law does not authorize incorporation of personal property memoranda or similar lists of tangible personal property created after execution of a will.
Alabama law generally interprets wills so as to give effect to the intent of the testator, and wills are construed to pass all property owned by the testator at the time of death.
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Amendment, Revision, and Revocation of Alabama Wills.
An Alabama will may be amended or revoked at any time prior to the testatorโs death; provided the testator retains adequate capacity.ย Amendment of an Alabama will can be accomplished through a codicil.ย A codicil is a written addendum to an existing will and must comply with all formalities required for execution of a valid will.
An Alabama will can be revoked in whole or in part by execution of a later will that either expressly revokes the prior will or implicitly revokes the prior will due to inconsistency.ย ย
Revocation may also be accomplished through the testatorโs physical destruction of the will, such as by burning or tearing, with the intention of revoking the will.ย Another person may revoke a will through destruction if done at the testatorโs direction in the presence of two witnesses.
If an Alabama testator is divorced after executing a will, any provisions in favor of the former spouse are deemed to have been revoked unless the will expressly provides otherwise.ย Assets bequeathed to the former spouse are treated as if the former spouse predeceased the testator.ย Provisions deemed revoked due to divorce are revived if the testator later remarries the same spouse.ย Alabama specifically excludes divorced ex-spouses from the statutory definition of โformer spouse.โย ย
If a testator is married after execution of a will, the surviving spouse receives a share of the estate as if the testator had died intestate.ย The presumed share of an omitted spouse is inapplicable if the omission appears to have been intentional or if the decedent made other arrangements for the spouse intended in lieu of a testamentary devise.ย ย
If a child is born to or adopted by the testator after execution of a will, the after-born child receives a share of the estate as if the testator had died intestate.ย The presumed share of an after-born child is inapplicable if there is evidence that the omission was intentional or if the decedent made other arrangements for the child intended to be in lieu of a testamentary devise.ย An after-born childโs share is also inapplicable if the decedent had at least one other child when the will was executed and the testator leaves substantially all of his or her estate to the after-born childโs other parent.ย
Holographic and Oral Wills.
Alabama law does not recognize holographic wills.ย A handwritten will can still be valid, but it must satisfy all of the other requirements for execution of a valid will, including attestation by witnesses.ย A holographic will can be probated in Alabama if it was validly executed in another state in compliance with the laws of the state in which it was executed.
Oral (or โnuncupativeโ) wills are not recognized under Alabama law.
Alabama Trust Requirements.
Trusts in Alabama are principally governed by the Alabama Uniform Trust Code, enacted by the legislature at AL Code ยง19-3B-101, et. seq.ย An Alabama trustโs purpose must be lawful, not in violation of the stateโs public policy, and must be possible to achieve.ย In general, the purpose must be to benefit the interests of the trustโs beneficiaries. An Alabama trust is invalid to the extent it was induced through fraud, duress, or undue influence.
A valid trust is only created under Alabama law if the settlor has adequate capacity to create the trust and expresses an intent to create a trust.ย For revocable trusts, the standard for capacity is the same as for wills.ย Alabama law assumes that trusts are revocable unless a trust instrument expressly provides that a trust is irrevocable.
Alabama trusts must also have a reasonably ascertainable beneficiary (subject to exceptions such as for charitable trusts, trusts for the care of animals, and certain trusts for noncharitable purposes).ย ย
An Alabama trust must have a trustee with actual duties to perform.ย The trustee must have legal capacity to act as trusteeโparticularly, capacity to hold title to trust assets.ย Trustees who manage assets are governed by the โprudent investor rule,โ though the rule may be modified under the terms of the trust.ย An Alabama trustโs sole trustee cannot also be its sole beneficiary.ย An Alabamaย
Alabama trusts can come into being through transfer of property by a settlor to a trustee (either during life or through a will or other testamentary instrument), a settlorโs declaration that property is owned as trustee, by exercising a power of appointment in favor of a trustee, or through a court order establishing the trust.ย
Though most trusts are evidenced by a written instrument setting forth the trustโs terms, Alabama law recognizes oral trusts.ย However, the creation and terms of an oral trust must be established by clear and convincing evidence.
Although the general rule is that creditors of a trustโs beneficiaries may attach a beneficiaryโs interest in a trust, Alabama protects beneficiary interests from attachment if a trust includes a โspendthrift provisionโ or provides for discretionary distributions.ย In either case, most creditors of beneficiaries cannot attach trust assets until actually distributed to the relevant beneficiary. However, spendthrift provisions do not prevent attachment for satisfaction of certain domestic support obligations, tax claims, or if the creditor provided services for the protection of the beneficiaryโs interest in the trust (or to the extent a mandatory distribution to the beneficiary is overdue).ย ย
Creditors of a revocable trustโs settlor can attach trust assets as long as the settlor remains living (or, upon death, through estate claims).ย In the case of irrevocable trusts, settlorsโ creditors can reach the maximum amount of trust assets that could be distributed to the settlor or for the settlorโs benefit.
Alabama trusts terminate upon revocation or expiration under the trustโs own terms, when there is no purpose of the trust remaining to be achieved, or when the trustโs purpose becomes unlawful, impossible, or contrary to public policy.ย A trust may also be modified or terminated by a court upon the petition of interested parties.ย ย
The Estate Planners Tactical Guide
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Estate Taxes:ย Alabama does not impose estate taxes or inheritance taxes.ย Large Alabama estates may still be liable for the federal estate tax.
Simplified Probate:ย Alabama allows for a simplified probate process for small estatesโdefined as $25,000 or less (periodically adjusted for inflation).ย Alabama small-estates probate is not available if the estate includes real property. ย If an Alabama estate is eligible for small estate probate, the personal representative files a petition for summary distribution with the probate court.ย If granted, the streamlined process allows the personal representative to distribute assets to heirs without the full probate administration process.
Non–Probate Transfers:ย Along with living trusts, Alabama law offers multiple options for non-probate transfer of assets.ย Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Tenancy by the entirety (a form of co-ownership specifically by spouses) is not authorized under Alabama law.
POD (payable-on-death) and TOD (transfer-on-death) designations provide another option for bypassing probate in Alabama.ย In either case, the designation provides for automatic transfer to a beneficiary upon an ownerโs death.ย POD and TOD designations can be added to certain assets such as financial accounts, CDs, and securities.ย Similarly, beneficiary designations on retirement accounts and life insurance policies allow for transfer of wealth outside probate.ย ย
Although some states allow for TOD designations within real estate deeds (often called โbeneficiary deedsโ), Alabama does not recognize them.ย Beneficiary designations on vehicle titles are also not permitted under Alabama law.
Spousal Shares: If a decedent is intestate, an Alabama surviving spouse is entitled to a share in the estate ranging from 100% if the decedent leaves no surviving parent or issue to 50% if the decedent has children who are not also the children of the surviving spouse.
To protect against spousal disinheritance by will, Alabama law allows a surviving spouse to claim a statutory elective share of a decedent spouseโs estate in lieu of the share provided under the decedentโs will.ย The elective share is a minimum interest in a decedent spouseโs estate in favor of the surviving spouse.ย In Alabama, the spousal elective share is equal to one-third of the value of the decedentโs probate estate (or the decedentโs entire estate reduced by the spouseโs separate estate, if less).ย Non-probate assets are generally excluded when calculating the elective share.ย Alabama law permits a spouse to waive the electoral share, in whole or in part, through a pre- or post-nuptial agreement.
Surviving spouses in Alabama may also be entitled to statutory allowances for a homestead (up to $15,000), personal property (up to $7,500), and a general family allowance (up to $15,000).ย
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
