What is a will, and what does it do for me?

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Last month’s column generated calls from people who were getting their personal affairs in order. Many questions related to establishing a will. Therefore, for the February and March columns, I will focus on items related to wills and estates.

First, a will is a legal document that provides the manner in which a person’s property is to be distributed when he/she dies. A person who dies after writing a will is said to have died “testate.” When someone dies without a will, they are said to have died “intestate.” In Alabama, the maker of a will must be: 1) At least 18 years old; 2) Of sound mind; and 3) Free from improper influences by other people.

In addition, a will must meet certain requirements established by Alabama law to be considered valid. Alabama has three requirements that must be met: 1) The will must be written; 2) The will must be signed by the maker; and 3) The will must be witnessed by two people in the manner required by the law, and all signatures should be notarized.

Writing your will allows you to establish the rules by which your property will be distributed. However, there are some limitations set by law. These limitations are intended to prevent/lessen hardships on your survivors. It is always advisable to contact an attorney who can best explain all the limitations and make sure your intent is clearly understood.

Many ask, “Do I really need to write a will, and what should the value of my estate be before writing a will?” The short answers are, “probably,” and “there is no minimum value assigned.”

You can write a will at any time. All the property you own constitutes your estate. Generally, the size of an estate and the individual family circumstances determine whether you need a will. Your estate does not have to be of any specific size to justify you writing a will. Regardless of size, if there are young children or property you want to assure will be given to certain people, then you should consider writing a will.

If you are considering writing a will, you should probably do it sooner rather than later. A will should be written while you are in good health and free from emotional distress or mental limitations such as dementia. You should be pragmatic and not wait for a catastrophe or other compelling reason to make your decision. When a catastrophe or significant life event happens, it may be too late to write your will.

In the probate office, we are often asked if a person must hire an attorney to assist him/her in writing a will. The simple answer is, “no.” There are no requirements that a person consult an attorney before drafting his/her will. However, the proper drafting of a will can be a tedious operation. It is best to consult someone who has experience writing wills. An attorney can make sure your will is legal, make sure the planned distribution of your property is appropriate, help prevent your family from spending money unnecessarily when administering your estate, and possibly reduce any taxes on your estate.

Just because you write a will doesn’t mean you can never change your mind. You may change or update your will as often as you desire. If there is a change in your estate or family makeup, you might want to change an existing will or write a new will to adjust for those changes. However, you need to know that changes must meet the same requirements as all wills. It is advisable to consult an attorney when changing your will.

Once written and properly executed (signed), your will is “valid” until you change or revoke it. If you write a second will, that usually revokes the first will. However, you may want to include a statement as such when writing the second or subsequent will.

Another area of concern is the cost to have an attorney assist with writing the will. Attorneys usually charge for a will based on the time spent preparing the will and the complexity of the estate. If the estate is small and the distribution plan is simple, then the will should cost less than a will for a larger estate with a complex distribution plan or with several people receiving property.

After your will is written and properly executed, it should be stored in a safe place. Many people place their wills, along with other important papers, in a bank’s safe deposit box. You can have multiple people you trust listed for access to your safe deposit. This will allow them entry into your safe deposit box.

If no one has access to your safe deposit box, someone will have to probate your estate and obtain a court order to gain access to that box to retrieve your will. You should let family members know exactly where your will is stored so they can find it when needed.
Now, moving on to the probating of a will. Probating of a will opens the administration of a deceased (decedent) person’s estate to ensure all the property is disposed of properly according to Alabama law and your wishes. The judge of probate enforces this by: 1) Making sure the personal representative appointed by the court follows Alabama laws regarding handling/distribution of the estate, and 2) Making sure the decedent’s wishes, as allowed by law, are followed. It doesn’t matter how well the judge of probate knows the deceased (decedent) person or what the judge or others think. What matters is what the law requires and what the decedent wrote in his/her will.

A will should be probated when the writer of the will dies. Anyone named in the will as either the personal representative or as a recipient of property, any other person with a financial interest in the estate, or the person who has possession of the will may have the will proved in the proper probate court and open the estate.

Generally, the probate of a will must be filed in the county where the decedent lived, not necessarily the county where the decedent passed. 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 ordered by the court to produce the will.

For the will to have legal effect, it must be probated. The will must be filed for probate not earlier than five (5) days after the testator’s death and within five years of the date following the testator’s death. Deciding to probate or not to probate a will is a big decision. The decedent’s survivors should consult an attorney when making this decision. Depending upon the circumstances, there may be no need to probate the will, but an attorney should be consulted when making these type decisions.

Probating a will is complex. Serving as a personal representative for an estate is a huge responsibility. Both these actions require someone with knowledge of the law and the requirements of probating an estate. The judge of probate and his/her clerks (staff) are strictly prohibited by law from advising or assisting anyone in completing forms, petitions, motions, or paperwork required to establish jurisdiction and probate an estate. The judge and the probate staff are also prohibited from providing anyone with forms to assist in probating an estate.

I hope this gives some insight into wills. Next month we will cover what to do when someone dies without having a will and how to probate an estate in that situation. All this information is just that – information. It is not to advise anyone in the writing of a will or the probate of a will; for that you need an attorney. Until next month, stay safe and God bless.