Title 43 of the Code of Alabama covers the state’s laws for wills in exhaustive detail, but most people just want to know -- in plain English, not legal mumbo-jumbo -- who can make one, how it should be done and what makes a will legal. You don’t have to hire a lawyer to draft one for you in this state, but it can’t hurt to have someone who understands the statutes look it over for you if you write your own. This can ensure that you haven't overlooked one of the finer details or requirements.
Who Can Leave a Will
Like all states, Alabama requires that you be of sound mind to write a will. This doesn’t mean that you haven’t grown a little forgetful in recent years or that you don’t suffer spells of being a bit out of touch with reality -- the bar isn’t set that high. This legal threshold is met if, at the time you sign your will, you understand what it says, what you own to pass to beneficiaries and who those beneficiaries are. You must also be at least 18 years old to write a will in Alabama.
The Contents of the Will
Alabama law doesn’t dictate who you can leave your property to, but it does have a rule about who you can’t leave out of your will -- your spouse. State law recognizes her right to an elective share of your estate. If you cut her out of your will, she can reject its terms and accept a third of your estate instead, or your entire estate after subtracting your non-marital property. The rules are complicated, so if you’re thinking you want to leave your spouse only a nominal bequest, clear it with an attorney first to make sure the provision will stand up in court if she decides to challenge your will.
Signature and Witness Requirements
You must commit your will to writing in Alabama -- the state doesn’t recognize nuncupative or oral wills. It’s OK if the will is handwritten. It doesn’t have to be typed or printed out as long as it meets all the state’s other requirements. The first of these is that two witnesses must watch you sign your will, then sign it themselves. If you can’t sign your name for some reason, Alabama law allows someone else to do it for you, but you must be present. Some states require that your witnesses can’t also be beneficiaries, but this isn’t the case in Alabama. As long as they’re competent adults -- meaning they can testify in court if need be -- you can choose anyone to witness your will. Signatures don’t have to be notarized.
The Self-Proving Affidavit
If you want to save your witnesses some trouble after your death, you can self-prove your will . This means creating a second document, an affidavit that states that they did indeed watch you sign your will and that they signed it themselves. You must all sign the affidavit and each signature must be notarized. Otherwise, your witnesses will have to testify to this information later so your will can be admitted for probate.
Creating a will is your only chance to make sure your estate is settled the way you want, no matter how large or small it is. It lets you appoint the person -- an executor -- who will handle your estate while it’s in probate. It allows you to nominate a guardian to raise your kids if you have any. If you don’t leave a will, Alabama’s statutes decide who gets your property. First in line are your spouse and children. If you’re single and have no living children, the state gives your property to your grandchildren, then your parents, siblings, grandparents, aunts, uncles and cousins. If the court can’t find any living relatives, the state of Alabama takes your property.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.