In every state, some people carefully put together an estate plan, with a will and perhaps a trust as well, specifying the beneficiaries who will inherit their property when they die. However, other people don't make any plans at all; they don't even make a will. When there is no will, the intestate laws of the state determine the heirs who are entitled to the property. Alabama has specific intestate laws that detail which family members get priority as heirs when a relative dies without a will.
Beneficiaries vs. Heirs
Generally, a beneficiary is a person named to receive property in the will of another individual. That is, if someone draws up a valid will, the people and organizations named in that document to receive property are the beneficiaries of the estate. They are sometimes referred to as heirs in discussions of Alabama law, although this is not legally accurate.
When a person dies without leaving a valid will, there are no named beneficiaries. Rather, each state has intestate laws that specify the heirs who will inherit the property. State laws differ, so it is important to consult state-specific laws. Generally a surviving spouse and children are among the first in line for property when someone dies without a will.
Alabama Laws of Intestacy
When a resident of Alabama dies without having written a will, termed intestate, the probate court has no direction from the decedent as to whom should inherit the decedent's estate property. The state must step in and provide direction for the intestate decedent through its intestate laws that set out who will inherit. Generally, a decedent's surviving spouse, children, parents and siblings are all potential heirs when an individual dies in Alabama without a will.
How much of the estate does each family member get? This depends, in part, on how many close family members have survived the deceased person. For example, it is natural that the law grants a surviving spouse a larger portion of the intestate estate, but exactly how much depends on whether there are surviving children or parents.
Who Is a Surviving Spouse?
In Alabama, not every spouse is considered a surviving spouse. First, a divorced spouse is not permitted to inherit property from a dead ex's intestate estate. Nor is a spouse from an annulled marriage. On the other hand, a spouse who was separated from the deceased at the time of the death remains a surviving spouse for intestate inheritance purposes.
Note that in order to be "surviving," a spouse must outlive the decedent by at least five days. This also applies to surviving children, parents and other heirs under Alabama intestate succession laws. If the spouse does not live for the required five days after the death, the intestate process will not include them.
Rights of Surviving Spouse
If an individual dies without a valid will in Alabama, the surviving spouse is first in line as an intestate heir. If there are no children and no parents surviving the decedent, the spouse takes the entire estate. But under Alabama intestate laws, the surviving spouse does not get 100 percent of the estate unless she is the only surviving heir. If the intestate decedent is survived by children or parents, they are also entitled to a part of the estate.
If the decedent left a surviving child or children, the surviving spouse's share of the estate is reduced. How much depends on whether the children were also children of that spouse. If so, the spouse gets the first $50,000 of the estate. The remainder of the estate is divided between the surviving spouse, who gets half of the remaining estate, and the children who share the other half equally.
If the children are not children of the surviving spouse, the spouse does not get the first $50,000. Rather, the spouse gets one-half of the entire estate, and the children are awarded the remaining half.
Other Possible Heir Combinations
If there are no surviving children of the decedent, a surviving spouse will have to split the estate with the decedent's parents if they were still alive at the time of death. In this case, Alabama intestate law gives the first $100,000 to the spouse and splits the remainder equally between the spouse and the decedent's surviving parent or parents.
What if there is no surviving spouse? If the decedent had children, the estate is divided equally among the children. If a child has died but had children, the child's children inherit their share in equal parts.
Take the example of an intestate decedent who left no spouse but had four children, three of whom are alive and one of whom is deceased with two children. The estate is divided into four parts with each child taking a part. The dead child's two children share their fourth of the estate equally.
What Happens if There Is no Surviving Spouse or Children?
If there is no surviving spouse and no surviving children or descendants, the estate passes to the surviving parents, if any. If the parents did not survive the decedent, the estate passes in equal shares to surviving siblings.
If there are no surviving siblings, it passes to the surviving descendants of the siblings. Failing that, grandparents, aunts and uncles inherit. If there are none, or none survive or leave descendants, the estate passes to the state of Alabama.
How Heirs Take Property
As discussed above, it is entirely possible for an intestate decedent to have multiple heirs who are entitled to a share of the property. When this happens under Alabama’s intestate laws, each heir takes title as a tenant in common. Their share depends on their legal rights.
For example, if a decedent dies with one piece of real estate, a surviving spouse and three children from an earlier marriage, the surviving spouse takes half, and the children share the other half. Therefore, the spouse would take a 50 percent interest, and each child would take a 25 percent interest in the entire property. If the heirs decide to sell the property for $200,000, the spouse would take $100,000 and each child would receive $50,000.
Probate in Alabama
Whether an individual dies with or without a will in Alabama, their estate must pass through probate unless it is comprised entirely of nonprobate assets. Nonprobate assets are those that have a beneficiary named outside of a will. This is possible with such assets as retirement accounts, revocable trust assets, pay-on-death or transfer-on-death accounts, and life insurance. If an individual owns real property jointly with another person with right of survivorship, that property also passes outside of probate.
Other than these assets, Alabama estates must pass through a probate proceeding. Probate is a court-supervised process where an estate’s assets are collected, the debts and taxes are paid, and heirs or beneficiaries are determined. At the end of the probate process, the court gives permission for the property to be distributed.
The length of time it takes to get an estate through probate can vary enormously depending on what kinds of issues arise. For example, where a will is contested, the probate process can be extended by months or even years.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.