GENERAL QUESTIONS ABOUT WILLS

WHAT IS A WILL?

A last will and testament (or will) is a document which provides the manner in which a person's property will be distributed when he dies. A person who dies after writing a will is said to have died testate. If someone dies without writing a will, they have died "intestate."

WHO MAY MAKE A WILL?

In Alabama, the maker of a will must be:

1. Be at least 18 years old;
2. Of sound mind; and
3. Free from improper influences by other people.

HOW DO I MAKE A WILL?

A will must meet certain requirements set by the State to be considered valid. In Alabama, the following requirements must be met:

1. The will must be written.
2. The will must be signed by the maker.
3. The will must be witnessed by two people in the manner required by the law.

MAY I DISPOSE OF MY PROPERTY IN ANY WAY I DESIRE BY MAKING A WILL?

Almost, but not quite. There are some limitations set by law to avoid placing hardships on the people who survive the deceased. For example, a married person cannot completely exclude the other spouse from sharing in the estate. A lawyer can best explain all of the limitations.

HOW DO I KNOW IF I NEED TO WRITE A WILL?

Any amount of property which you own constitutes your estate. Generally, the size of your estate and your family circumstances determine whether you need a will. An estate does not have to be any particular size to justify a will. If you have young children, or property which you would like to assure will be given to certain people, then you should consider writing a will.

WHEN DO I NEED TO WRITE A WILL?

A will should be written while the maker is in good health and free from any emotional distress. A prudent person does not wait for a catastrophe or other compelling reason to make a decision.

WHO MAY DRAFT A WILL?

There is no requirement that a person consult a lawyer before drafting their own will. However, the proper drafting of a will can be a delicate operation, and it is best to consult someone who has experience. A lawyer can make sure that your will is legal, and that your property will be given to the people that you intended. A lawyer can also help construct a will so that your family saves money in administering the estate and reduces their taxes.

IS A WILL EXPENSIVE?

A lawyer will usually charge for a will according to the time spent in preparing the will. If you have a small estate and a simple plan for distributing your property, then your will should cost less than one for a large, complex estate with several people receiving property.

MAY A WILL BE CHANGED ONCE IT IS WRITTEN?

A person may change his will as often as he desires. However, the changes must meet the same requirements listed above for the original will. No change should be made without first consulting the person who drafted the will.

HOW LONG IS MY WILL "GOOD"?

A properly written and executed will is "good" until it is changed or revoked. Writing a second will usually revokes the first will. However, if there is a change in your estate or your family makeup, you may consider changing your existing will or writing a new will. For example, if you sell your house you may need to change your will to reflect the change in your estate.

WHAT SHOULD I DO WITH MY WILL ONCE IT IS WRITTEN?

Once you have written your will, you should keep it in a safe place, such as a safety deposit box at a bank. You should also let your family know where the will is so that they can find it when you die.

PROBATE OF WILLS

WHAT DOES PROBATE OF A WILL MEAN?

Probate of a will is the administration of an estate to insure that all of the property is disposed of properly. It is the Judge of Probate's responsibility to make sure that all of the laws in Alabama regarding the distribution of estates are followed.

WHO SHOULD PROBATE A WILL?

Upon the person's death, anyone named in the will either as personal representative or as a recipient of property, or any other person with a financial interest in the estate, or the person who has possession of the will may have the will proved before the proper probate court. Any person in possession of the will must, by Alabama law, deliver the will to the Probate Court or to a person who is able to have the will probated. A person in possession of the will can be required to produce it.

WHERE SHOULD A WILL BE PROBATED?

Generally, wills must be filed for probate in the county where the deceased lived.

WHEN MUST A WILL BE FILED FOR PROBATE?

To be effective, a will must be filed for probate within five years of the date of the testator's death.

DO I HAVE TO HAVE A LAWYER?

The complexity of handling estates normally necessitate having an attorney since the Judge of Probate cannot advise you of the law or provide you with forms.

DO I NEED TO PROBATE THE WILL?

Yes, the will must be probated to have legal effect. Before deciding not to probate a will one should consult an attorney.

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THIS INFORMATION PAGE, WHICH IS BASED ON ALABAMA LAW, IS TO INFORM AND NOT TO ADVISE. NO PERSON SHOULD EVER APPLY OR INTERPRET ANY LAW WITHOUT THE AID OF A LAWYER WHO ANALYZES THE FACTS, BECAUSE THE FACTS MAY CHANGE THE APPLICATION OF THE LAW.

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