Table of Contents:
- Florida Rules on No Wills
- What Are the Rules for Wills in Delaware?
- Illinois Laws Regarding Wills
- Alabama Laws Regarding Wills
A personal representative is an individual, or sometimes a bank or trust, that is responsible for administering the decedent's estate. The personal representative's responsibilities may include gathering all the decedent's assets, paying creditors, and distributing assets to the heirs. When the decedent dies without a will, the court will appoint someone to serve as the personal representative. If the decedent has a surviving spouse, she will normally take this role, although the spouse may decline to serve. When the spouse is not an option, the heirs may agree to elect a personal representative. If the heirs cannot agree, the probate court will hold a hearing to appoint someone for the role.
Regardless of whether the decedent left a will or died intestate, the probate process is essentially the same. After the personal representative is appointed, he will gather all of the assets of the decedent subject to probate, meaning any assets owned solely by the decedent and not automatically transferred to someone else. The representative must then publish a public notice informing creditors of the decedent's death and contact any known creditors. The representative will pay valid claims and expenses for administering the estate as well as file a final tax return. Finally, the remaining assets will be distributed and the personal representative will close the estate.
When someone dies without a will, the Florida intestate law lists the order of priority for distributing assets. The distribution is determined by the number of living descendants, such as children or grandchildren. When the decedent has a living spouse but no descendants, the spouse will receive the entire estate. If the only living descendants are also the descendants of the living spouse, such as children of the decedent and the spouse, the spouse will still receive the entire estate. However, if the decedent had other descendants not related to the spouse, such as children from a prior marriage, the spouse will receive half the estate and the descendants will receive the other half. If the decedent was not married, the descendants receive the entire estate. When there are no descendants and no spouse, the decedent's parents will inherit the estate. Finally, when no close family members are living, the assets will be distributed to more remote family members, such as aunts or cousins.
When an estate is distributed to descendants, Florida law provides for how the estate will be divided among the generations. Generally, the estate will be divided equally among all of the descendants. However, this becomes more complicated when the decedent has children and grandchildren. The estate is split evenly at the first generation, meaning that if the decedent had two children, each child would receive half the estate. However, if one of the children is deceased but had children, the decedent's grandchildren, those grandchildren would take their parent's share. In other words, the living child would take half of the estate, while the children of the deceased child would evenly split the other half of the estate.
A will must be signed by the testator, the person making it, and by two witnesses. The testator can ask someone else to sign her will for her, but it must occur in her presence and the request must be heard by the witnesses. Delaware does not bar beneficiaries from witnessing a will.
Effect of Divorce
Divorce voids any provisions made to an ex-spouse in a will under Delaware law. Any bequests made to the ex-spouse are revoked and he is barred from serving as executor if the will named him to the position. However, if the couple remarries, the provisions of the will are reinstated as though the divorce never happened.
Delaware is a community property state for purposes of divorce. Therefore, a testator can only bequeath his personal property in a will, not anything that was acquired during the marriage. The exceptions are property that was received by way of an inheritance or a gift during the marriage or property that can be proven to have been purchased with the testator’s separate money. Community property is owned 50/50 between spouses, so the surviving spouse automatically retains her half when the testator dies and his will applies only to his half of the community property.
Delaware gives a surviving spouse the right to take an elective share of the testator’s estate if she attempts to leave him out of her will or leaves him only a nominal amount. He can renounce or reject the terms of the will and accept a one-third share of the estate instead. If a nominal bequest was made, it is deducted from the one-third share. However, a spouse can only make an elective share claim against the separate property of the testator, not the testator’s half of the community property. To make such a claim, the surviving spouse must file a request with the Chancery Court within six months of the executor taking office.
Under Delaware law, the executor of a will does not need the court’s approval or the participation of any of the beneficiaries to sell or transfer the testator’s real estate as long as his will grants that power. An executor may dispose of real property as necessary to pay the debts and expenses of the estate as long if it has not been expressly bequeathed to any beneficiary.
Delaware’s statutes do not assume that a missing will has been revoked by the testator. If a will is revoked by tearing it up or otherwise destroying it, the act must be witnessed by two people who can later attest to it, if necessary. A will can also be revoked by the creation of a new one that nullifies the old one or by a written statement signed by the testator, but the statement must also be witnessed by two people.
For a will to be valid in Illinois, it must be executed by a person 18 years of age or older who is competent at the time of execution. The will must be in writing and signed by the person exercising the will or by the person's representative who is in his presence and signing under his direction. Two witnesses, each of which must be at least 18-years-old, must be present at the time of signing and attest to such.
A will executed overseas, but which is deemed to be an international will as defined under the Uniform International Wills Act, may be submitted to an Illinois probate court and considered valid under Illinois law.
An Illinois will may bequeath personal and real property. The gift may be made in present time or at a future date (e.g., upon the signor's death. Any person who is named by the signor as being responsible for distribution of bequeaths (i.e., a trustee) will not be liable for distributing the estate so long as that person is acting in good faith and relying on the will's instructions.
An Illinois will may be revoked at the leisure of the signor. The document must be burned, canceled, torn or destroyed in some manner or revoked by the execution of another will or document declaring the previous will null and void. In Illinois, a divorce or an annulment will revoke any gift or appointment made to the signor's ex-spouse so long as the will was executed before the divorce or annulment. A separation, even if legal, will not revoke a spouse's interests under an existing will.
When a person dies without a valid will in effect, a state's intestate (or default) rules apply to distributing the decedent's assets in the absence of his instructions. In Illinois, if a person dies intestate (i.e., without a will), one-half of the estate will go the surviving spouse and the other half will go to any surviving children. If the decedent is not married, but has children, the entire estate will go to her heirs. If the decedent is married, but has no children, the entire estate will go to her surviving spouse. If the decedent has neither a spouse nor children, the entire estate will go to her immediate family--parents, siblings--in equal amounts.
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.